Patricia Frye v. Carolyn W. Colvin, No. 5:2015cv01991 - Document 29 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION AND ORDER REVERSING DECISION OF THE COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS by Magistrate Judge Alexander F. MacKinnon. (See document for details). (ib)
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Patricia Frye v. Carolyn W. Colvin Doc. 29 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 Case No. ED CV 15-01991 AFM PATRICIA FRYE, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. MEMORANDUM OPINION AND ORDER REVERSING DECISION OF THE COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS 17 18 FACTUAL BACKGROUND 19 On June 29, 2012, Plaintiff Patricia Frye filed applications for Supplemental 20 Security Income (SSI) and Disability Insurance Benefits (DIB), alleging that she 21 was disabled beginning on June 15, 2009. After her application was denied initially 22 and upon reconsideration, Plaintiff requested a hearing before an ALJ, and a 23 hearing was held on February 12, 2014, at which Plaintiff testified on her own 24 behalf. (AR 31-62.) The ALJ summarized Plaintiff’s hearing testimony as follows: 25 “The claimant testified at the hearing, she is unable to work because of 26 her heart problems, breathing problems and recently developed 27 swelling in both feet. 28 difficulties, shortness of breath, and constant pain which varies in She explained she experiences breathing Dockets.Justia.com 1 intensity. She estimated she would stand up for up to twenty minutes 2 at one time, walk down her driveway, and perform household chores at 3 a slower pace. She explained that she has ‘good’ days and ‘bad’ days. 4 She estimated having about one to two good days a week. On these 5 days, she is able to perform household chores around her house. 6 However she has to lie down on and off throughout the day, and naps 7 four to five hours during the day. She is able to use a computer and 8 the internet on her cell phone. 9 assistance) and maintain her household. She drives about once a week She can shop (sometimes with 10 to shop and for appointments. . . .” (AR 19.) 11 On April 11, 2014, the ALJ issued a decision applying the multi-step 12 sequential analysis and concluding that Plaintiff was not disabled. (AR 15-24.) 13 The ALJ found that Plaintiff had severe impairments consisting of tachycardia, 14 asthma, chronic obstructive pulmonary disease (COPD), hypertension, obstructive 15 sleep apnea, dyslipidemia, degenerative changes in her lumbar spine, and obesity, 16 but that none of these impairments met or equaled a listed impairment. (AR 17-18.) 17 The ALJ further found that “[Plaintiff’s] allegations as to the intensity, duration and 18 functionally limiting effects of her impairments are not fully credible . . . .” (AR 19 20.) The ALJ concluded that Plaintiff was capable of performing a narrowed range 20 of light work activity and that she could return to her past work as a sales person 21 and sales manager, as well as alternative occupations. (AR 22-24.) The Appeals 22 Council denied Plaintiff’s request for review of the ALJ’s decision. 23 On September 26, 2015, Plaintiff filed a complaint seeking review of the 24 Commissioner’s denial of her applications for DIB and SSI payments. 25 accordance with the Court’s case management order, Plaintiff filed a memorandum 26 in support of plaintiff’s complaint (ECF No. 18), and the Commissioner filed a 27 memorandum in support of defendant’s answer. (ECF No. 27.) Plaintiff also filed 28 2 In 1 a notice that she was not submitting a reply. (ECF No. 28.) This matter now is 2 ready for decision. DISPUTED ISSUE 3 4 Plaintiff has raised a single issue in challenging the ALJ’s decision denying 5 benefits: Whether the ALJ failed to properly consider Plaintiff’s subjective 6 complaints and failed to properly assess Plaintiff’s credibility. DISCUSSION 7 8 The ALJ’s adverse credibility finding was based on a number of grounds: 9 First, the ALJ stated that Plaintiff “has the ability to perform household chores, 10 shop, prepare meals, drive, manage her finances, maintain a residence, care 11 appropriately for her grooming and hygiene, use telephones and computers, manage 12 her medical treatment and appointment, care for her dogs, and perform yard work.” 13 (AR 19, citing AR 208, 211 and Plaintiff’s hearing testimony.) Second, according 14 to the ALJ, Plaintiff’s “treatment has overall consisted of routine follow up and 15 medication management treatment” (AR 19), and “her symptoms are effectively 16 managed with medications, diet changes, exercise and limiting her exposure to 17 environment irritants.” (AR 20.) Third, the ALJ pointed to an interview that 18 Plaintiff had with a field office representative and stated that Plaintiff had no 19 difficulty during the interview. (AR 19.) 20 inconsistencies between [Plaintiff’s] alleged severity of her symptoms and 21 limitations and the evidence.” (AR 19.) As discussed below, the Court finds that 22 these reasons are not legally sufficient to support the ALJ’s adverse credibility 23 determination. Fourth, the ALJ noted “significant 24 An ALJ’s assessment of pain severity and claimant credibility is entitled to 25 “great weight.” Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989). Where the 26 claimant has produced objective medical evidence of an impairment which could 27 reasonably be expected to produce some degree of pain and/or other symptoms, and 28 the record is devoid of any affirmative evidence of malingering, the ALJ may reject 3 1 the claimant’s testimony regarding the severity of the claimant’s pain and/or other 2 symptoms only if the ALJ makes specific findings stating clear and convincing 3 reasons for doing so. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); 4 see also Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). Here, since the 5 Commissioner has not argued that there was evidence of malingering and that a 6 lesser standard consequently should apply, the Court will apply the “clear and 7 convincing” standard to the ALJ’s adverse credibility determination. See Burrell v. 8 Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014) (applying “clear and convincing” 9 standard where the government did not argue that a lesser standard should apply 10 based on evidence of malingering). “The clear and convincing standard is the most 11 demanding required in Social Security cases.” Garrison v. Colvin, 759 F. 3d 995, 12 1015 (9th Cir. 2014). 13 Daily activities 14 The Ninth Circuit has “repeatedly warned that ALJs must be especially 15 cautious in concluding that daily activities are inconsistent with testimony about 16 pain, because impairments that would unquestionably preclude work and all the 17 pressures of a workplace environment will often be consistent with doing more than 18 merely resting in bed all day.” Id. at 1016. “[T]he mere fact that a plaintiff has 19 carried on certain daily activities, such as grocery shopping, driving a car, or 20 limited walking exercise, does not in any way detract from her credibility as to her 21 overall disability.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). 22 Here, the ALJ’s decision summarized Plaintiff’s daily activities based on an 23 exertion questionnaire and Plaintiff’s hearing testimony. (AR 19.) Yet he failed to 24 identify how this evidence of Plaintiff’s daily activities contradicts specific aspects 25 of her testimony or claims; instead, the ALJ provided only the general statement 26 that the activities are inconsistent with the severity of Plaintiff’s claimed symptoms 27 and “indicate she is not as restricted in her activities as alleged.” (Id.) That is not 28 sufficient. See Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (ALJ 4 1 must identify specifically what testimony is not credible). Certainly, nothing in the 2 questionnaire or hearing testimony suggests vigorous daily activities by Plaintiff. 3 The answers in the questionnaire state that Plaintiff can do yard work only “in very 4 short intervals” (AR 208); that she does “not walk much” and “I have to stop and sit 5 often” (Id.); that she can carry light (but not heavy) groceries into the house from 6 her car (AR 209); that some days she must skip doing all of her daily chores (Id.); 7 that she cannot do yard work for more than 15 minutes at a time (Id.); and that 8 simple chores take her a very long time because she can only do her chores for 9 about 10 minutes at a time (AR 210). Plaintiff’s hearing testimony similarly 10 reflects that it takes her a long time to accomplish simple chores because she needs 11 to stop and sit for 15 to 20 minutes frequently (AR 44), and that she has to sit down 12 when shopping because she gets tired (AR 43). Considered in its entirety, this 13 evidence does not present a clear and convincing reason for discounting Plaintiff’s 14 credibility concerning the severity of her symptoms. See Vertigan, supra, 260 F.3d 15 at 1050; Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (finding error 16 where ALJ’s credibility discussion selectively quoted information from the record). 17 In sum, the ALJ’s discussion of Plaintiff’s daily activities does not constitute a 18 valid reason to discredit Plaintiff’s testimony. 19 Conservative medical treatment and effective symptom management 20 The record shows that Plaintiff takes medications to control her heart rate, 21 has a CPAP machine for sleep apnea, uses a nebulizer and Spiriva for her breathing 22 impairments, and carries nitroglycerine for possible heart problems. (AR 37-41.) 23 Although the ALJ characterized this as “routine follow-up and medication 24 management” (AR 19), he did not state what other, more aggressive treatments or 25 procedures were available for Plaintiff’s asthma, COPD, heart and breathing 26 problems. See Kager v. Astrue, 256 F. App’x 919, 923 (9th Cir. 2007) (rejecting 27 ALJ’s characterization of treatment as conservative where, inter alia, claimant took 28 prescription medications). As a result, the ALJ’s discussion of daily activities is 5 1 too general and vague to constitute a legally sufficient basis for discounting 2 Plaintiff’s subjective symptom testimony. See Parra v. Astrue, 481, F.3d 742, 750 3 (9th Cir. 2007). The ALJ also did not cite to medical opinion evidence in support 4 of his conclusion that Plaintiff’s treatment is not commensurate with her subjective 5 symptom complaints. See generally Day v. Weinberger, 522 F.2d 1154, 1156 (9th 6 Cir. 1975) (ALJ is not qualified as a medical expert). 7 reference to the effectiveness of the treatment received by Plaintiff (AR 19-20) is 8 not supported in the decision by specific evidence linking Plaintiff’s treatment 9 regimen to effective management of her symptoms on an ongoing basis. Moreover, the ALJ’s As 10 pointed out in Plaintiff’s opening brief, there is substantial contrary evidence in the 11 record of multiple visits to emergency rooms and hospitals for Plaintiff’s breathing 12 impairments and cardiac problems. (ECF 18 at 7.) Thus, the type of treatment 13 received by Plaintiff as discussed in the ALJ’s decision is not a clear and 14 convincing reason for discounting the credibility of her claimed symptoms. 15 Interview with field office representative 16 The ALJ stated that Plaintiff “had no difficulty during her interview with a 17 field office representative” (AR 19, citing AR 190-92) and that he found the 18 representative’s statement to be credible (AR 20). These terse findings by the ALJ 19 are not sufficient to constitute clear and convincing evidence of Plaintiff’s lack of 20 credibility. Although the Commissioner’s brief points to specific observations 21 made in the interview report (ECF No. 27 at 5), the ALJ did not do so, and the 22 Court may not add these reasons into the decision. See Connett v. Barnhart, 340 23 F.3d 871, 874 (9th Cir. 2003). Moreover, Plaintiff testified that she has good days 24 and bad days and that she is able to do certain tasks for a short period of time before 25 her breathing and heart symptoms require her to take a break. 26 observation that Plaintiff “had no difficulty” in completing a short interview is not 27 inconsistent with Plaintiff’s own description of her impairments, and the ALJ has 28 offered no explanation why this justifies an adverse credibility determination. 6 By itself, the 1 Objective findings in medical reports 2 As a final reason, the ALJ stated that Plaintiff’s subjective complaints are 3 inconsistent with the “evidence” in the “records as a whole.” (AR 19-20.) Since 4 the ALJ’s other reasons are insufficient, this remaining reason apparently based 5 on lack of supporting objective medical evidence cannot be legally sufficient by 6 itself to support the adverse credibility determination. See Robbins v. Social Sec. 7 Admin., 466 F.3d 880, 884 (9th Cir. 2006) (where ALJ’s initial reason for adverse 8 credibility determination was legally insufficient, his sole remaining reason 9 premised on lack of medical support for claimant’s testimony was legally 10 insufficient); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (“[A] 11 finding that the claimant lacks credibility cannot be premised wholly on a lack of 12 medical support for the severity of his pain.”). The Ninth Circuit has held that lack 13 of objective medical evidence may be a factor an ALJ can consider in his credibility 14 analysis, but it cannot form the sole basis for a credibility determination. See Burch 15 v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“Although lack of medical evidence 16 cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ 17 can consider in his credibility analysis.”). 18 Medical opinion evidence 19 The Commissioner argues that the ALJ relied on medical opinion evidence as 20 an additional basis for his adverse credibility determination. (ECF No. 27 at 5-6.) 21 The ALJ’s decision itself, however, does not reflect such reliance. 22 evidence was not discussed by the ALJ as part of his credibility assessment, and the 23 decision cannot be rewritten to add this as a supporting rationale for the credibility 24 ruling. See Connett, 340 F.3d at 874. 25 * * Opinion * 26 The law is well established that the decision whether to remand for further 27 proceedings or simply to award benefits is within the discretion of the Court. See, 28 e.g., Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan, 7 1 888 F.2d 599, 603 (9th Cir. 1989); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 2 1981). Remand is warranted where additional administrative proceedings could 3 remedy defects in the decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 (9th 4 Cir. 1984); Lewin, 654 F.2d at 635. 5 appropriate where no useful purpose would be served by further administrative 6 proceedings, Kornock v. Harris, 648 F.2d 525, 527 (9th Cir. 1980); where the 7 record has been fully developed, Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 8 1986); or where remand would unnecessarily delay the receipt of benefits, Bilby v. 9 Schweiker, 762 F.2d 716, 719 (9th Cir. 1985). Here, particularly where Plaintiff 10 challenges only the ALJ’s adverse credibility finding, she has failed to show that 11 this case presents the rare circumstances that would warrant an immediate award of 12 benefits. Further administrative proceedings would serve a useful purpose. See 13 Brown-Hunter, 806 F.3d at 495. 1 Remand for the payment of benefits is 14 15 IT THEREFORE IS ORDERED that Judgment be entered reversing the 16 decision of the Commissioner of Social Security and remanding this matter for 17 further administrative proceedings consistent with this Order. 18 19 DATED: August 30, 2016 20 21 ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 1 It is not the Court’s intent to limit the scope of the remand. 8
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