Rosa Saldana v. Carolyn W. Colvin, No. 5:2016cv01212 - Document 24 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym. IT IS THEREFORE ORDERED that Judgment shall be entered REVERSING the decision of the Commissioner denying benefits, and REMANDING the matter to the Commissioner for further administrative action consistent with this decision. (see document for details). (dro)
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Rosa Saldana v. Carolyn W. Colvin Doc. 24 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ROSA SALDANA, 12 13 14 15 16 17 18 ) ) Plaintiff, ) ) ) v. ) ) ) NANCY A. BERRYHILL, Acting Commissioner of Social Security ) ) Administration, ) ) Defendant. ) ) Case No. ED CV 16-1212-SP MEMORANDUM OPINION AND ORDER 19 I. 20 INTRODUCTION 21 On June 9, 2016, plaintiff Rosa Saldana filed a complaint against defendant, 22 the Commissioner of the Social Security Administration (“Commissioner”), 23 seeking a review of a denial of a period of disability, disability insurance benefits 24 (“DIB”), and supplemental security income (“SSI”). The parties have fully briefed 25 the matters in dispute, and the court deems the matter suitable for adjudication 26 without oral argument. 27 Plaintiff presents two disputed issues for decision: (1) whether the 28 1 Dockets.Justia.com 1 Administrative Law Judge (“ALJ”) properly considered the opinion of a treating 2 physician; and (2) whether the ALJ properly considered plaintiff’s credibility. 3 Memorandum in Support of Plaintiff’s Complaint (“P. Mem.”) at 2-9; 4 Memorandum in Support of Defendant’s Answer (“D. Mem.”) at 2-11. 5 Having carefully studied the parties’ memoranda on the issues in dispute, the 6 Administrative Record (“AR”), and the decision of the ALJ, the court concludes 7 that, as detailed herein, the ALJ failed to properly consider the opinion of the 8 treating physician and plaintiff’s crediblity. The court therefore remands this 9 matter to the Commissioner in accordance with the principles and instructions 10 enunciated in this Memorandum Opinion and Order. 11 II. 12 FACTUAL AND PROCEDURAL BACKGROUND 13 Plaintiff was thirty-one years old on her alleged disability onset date, and is 14 a high school graduate with a medical assistant certification. AR at 44-45, 100. 15 Plaintiff has past relevant work as a clerk and medical assistant. Id. at 51. 16 On June 18, 2010, plaintiff filed applications for a period of disability, DIB, 17 and SSI. Id. at 101. The applications were denied initially on October 6, 2010. Id. 18 Plaintiff filed a second set of applications on June 22, 2011, which were denied 19 after a hearing on January 28, 2013. Id. 20 On August 30, 2013 and September 25, 2013, plaintiff filed a third set of 21 applications for a period of disability, DIB, and SSI, alleging an onset date of 22 August 15, 2009 due to rheumatoid arthritis, lupus, hypertension, depression, and 23 bone pain. Id. at 100, 115. The Commissioner denied plaintiff’s applications 24 initially and upon reconsideration, after which she filed a request for a hearing. Id. 25 at 162-76. 26 On December 9, 2014, plaintiff appeared and testified at a hearing before the 27 ALJ. Id. at 38-56. The ALJ also heard testimony from Cheryl Chandler, a 28 2 1 vocational expert. Id. at 51-53. On January 28, 2015, the ALJ denied plaintiff’s 2 claims for benefits. Id. at 19-33. 3 In an earlier decision dated January 28, 2013, an ALJ determined plaintiff 4 was not disabled. AR at 19. Here, the ALJ first determined that plaintiff made a 5 showing a changed circumstance and therefore rebutted the presumption of 6 continuing nondisability. Id. 7 The ALJ then applied the well-known five-step sequential evaluation 8 process. The ALJ found, at step one, that plaintiff had not engaged in substantial 9 gainful activity since August 15, 2009, the alleged disability onset date. Id. at 22. 10 At step two, the ALJ found plaintiff suffered from the following severe 11 impairments: systemic lupus erythematosus; rheumatoid arthritis; and affective 12 disorder. Id. 13 At step three, the ALJ found plaintiff’s impairments, whether individually or 14 in combination, did not meet or medically equal one of the listed impairments set 15 forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the “Listings”). Id. The ALJ then assessed plaintiff’s residual functional capacity,1 and 16 17 determined she had the RFC to perform light work, with the limitations that she 18 could: lift and/or carry twenty pounds occasionally and ten pounds frequently; sit, 19 stand, or walk for six hours; and occasionally perform postural activities. Id. at 24. 20 The ALJ precluded plaintiff from: jobs requiring exposure to temperature 21 extremes; concentrated exposure to vibration, hazards such as hazardous 22 machinery, and heights; and highly stressful jobs such as jobs in customer service 23 24 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 115526 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the 27 claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 28 n.2 (9th Cir. 2007). 1 3 1 or those requiring high production quotas such as rapid assembly. Id. 2 The ALJ found, at step four, that plaintiff was capable of performing her 3 past relevant work as a general clerk and medical assistant. Id. at 32. 4 Consequently, the ALJ concluded plaintiff did not suffer from a disability as 5 defined by the Social Security Act (“SSA”). Id. at 32-33. 6 Plaintiff filed a timely request for review of the ALJ’s decision, which was 7 denied by the Appeals Council. Id. at 1-3. The ALJ’s decision stands as the final 8 decision of the Commissioner. 9 III. 10 STANDARD OF REVIEW 11 This court is empowered to review decisions by the Commissioner to deny 12 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 13 Administration must be upheld if they are free of legal error and supported by 14 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 15 (as amended). But if the court determines the ALJ’s findings are based on legal 16 error or are not supported by substantial evidence in the record, the court may 17 reject the findings and set aside the decision to deny benefits. Aukland v. 18 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 19 1144, 1147 (9th Cir. 2001). 20 “Substantial evidence is more than a mere scintilla, but less than a 21 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 22 “relevant evidence which a reasonable person might accept as adequate to support 23 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 24 F.3d at 459. To determine whether substantial evidence supports the ALJ’s 25 finding, the reviewing court must review the administrative record as a whole, 26 “weighing both the evidence that supports and the evidence that detracts from the 27 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be 28 4 1 affirmed simply by isolating a specific quantum of supporting evidence.’” 2 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 3 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 4 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that 5 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 6 1992)). 7 IV. 8 DISCUSSION 9 A. The ALJ Failed to Properly Consider the Treating Physician’s Opinion 10 Plaintiff argues the ALJ failed to properly consider the opinion of her 11 treating physician, Dr. Thang Le. P. Mem. at 2-5. Specifically, plaintiff contends 12 the ALJ failed to provide legally sufficient reasons for rejecting Dr. Le’s opinion. 13 Id. 14 In determining whether a claimant has a medically determinable impairment, 15 among the evidence the ALJ considers is medical evidence. 20 C.F.R. §§ 16 404.1527(b), 416.927(b).2 In evaluating medical opinions, the regulations 17 distinguish among three types of physicians: (1) treating physicians; (2) examining 18 physicians; and (3) non-examining physicians. 20 C.F.R. 19 §§ 404.1527(c), (e), 416.927(c), (e); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 20 1996) (as amended). “Generally, a treating physician’s opinion carries more 21 weight than an examining physician’s, and an examining physician’s opinion 22 carries more weight than a reviewing physician’s.” Holohan v. Massanari, 246 23 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. §§ 404.1527(c)(1)-(2), 416.027(c)(1)24 (2). The opinion of the treating physician is generally given the greatest weight 25 26 The Social Security Administration issued new regulations effective March 27 27, 2017. All regulations cited in this decision are effective for cases filed prior to 28 March 27, 2017. 2 5 1 because the treating physician is employed to cure and has a greater opportunity to 2 understand and observe a claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 3 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 4 Nevertheless, the ALJ is not bound by the opinion of the treating physician. 5 Smolen, 80 F.3d at 1285. If a treating physician’s opinion is uncontradicted, the 6 ALJ must provide clear and convincing reasons for giving it less weight. Lester, 7 81 F.3d at 830. If the treating physician’s opinion is contradicted by other 8 opinions, the ALJ must provide specific and legitimate reasons supported by 9 substantial evidence for rejecting it. Id. Likewise, the ALJ must provide specific 10 and legitimate reasons supported by substantial evidence in rejecting the 11 contradicted opinions of examining physicians. Id. at 830-31. The opinion of a 12 non-examining physician, standing alone, cannot constitute substantial evidence. 13 Widmark v. Barnhart, 454 F.3d 1063, 1066 n.2 (9th Cir. 2006); Morgan v. 14 Comm’r, 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d 15 813, 818 n.7 (9th Cir. 1993). 16 1. Dr. Thang Le 17 Dr. Thang Le, a rheumatologist, treated plaintiff from June 17, 2010 through 18 the date of the opinion. See AR at 533-36, 1077-79. Plaintiff was referred to Dr. 19 Le after complaining of fatigue and pain, and a positive antinuclear antibody 20 (“ANA”) test.3 See id. at 484, 533-36. At the initial consultation, plaintiff reported 21 fatigue the past three years, and constant moderate to severe pain and stiffness of 22 the hands, wrists, elbows, shoulders, neck, lower back, hips, knees, and feet the 23 past year. Id. at 533. Dr. Le observed plaintiff had tenderness to palpation in the 24 25 An ANA test is used to determine whether someone has an autoimmune 26 disorder such as lupus or rheumatoid arthritis. A positive ANA test does not automatically mean the person tested has lupus. See 27 http://www.mayoclinic.org/tests-procedures/ana-test/basics/definition/prc-2001456 28 6. 3 6 1 hand joints, wrists, elbows, knees, and ankles, and 12/18 tender points. Id. at 535. 2 Based on the initial examination and ANA test, Dr. Le’s impression was that 3 plaintiff had polyarthralagia and fatigue, and plaintiff should be evaluated for 4 systemic lupus erythematosus. Id. 5 Dr. Le continued to treat plaintiff for at least four years. During that time, 6 plaintiff consistently reported to Dr. Le that she had constant moderate to severe 7 pain and stiffness in the morning. See, e.g., id. at 619, 667, 1165. Plaintiff 8 reported periods of improvement, which appeared to correspond with changes in 9 medication. See, e.g., id. at 649, 912, 1071. Upon physical examination, Dr. Le 10 initially observed plaintiff had tenderness to palpation at her fingers, ankle joints, 11 and elbows, but later only documented tenderness to palpation in her elbow, 12 fingers, and ankle joints. See, e.g., id. at 602, 647, 668, 677, 1060. Dr. Le also 13 observed a decrease in tender points, starting with 14/18 in July 2010 and 14 decreasing to 3/18 by October 2013. See id. at 677, 919. The 2014 treatment notes 15 do not indicate any trigger points, but Dr. Le noted plaintiff developed a painful 16 arc of the shoulders. See id. at 1060, 1069. Throughout the treatment period, Dr. 17 Le also observed plaintiff had Raynaud’s phenomenon, muscle weakness, and 18 parethesia. See, e.g., id. at 602, 608, 647, 1060. 19 Dr. Le ordered multiple blood tests during the course of treatment. After 20 reviewing the initial positive ANA test, Dr. Le ordered a lupus panel, which was 21 negative. Id. at 751. After a subsequent December 2010 ANA test was positive, 22 Dr. Le ordered another lupus panel, which again was negative. See id. at 662, 741, 23 744. A June 2013 ANA test was negative. Id. at 598. Plaintiff’s blood tests, 24 however, showed an elevated C-reactive protein. See, e.g., id. at 929, 931, 933. 25 Based on the tests, plaintiff’s complaints, and clinical findings, Dr. Le diagnosed 26 27 28 7 1 plaintiff with seronegative rheumatoid arthritis.4 See id. at 603. 2 Dr. Le treated plaintiff with various medications. In 2010, Dr. Le treated 3 plaintiff with prednisone and hydrooxychloroquine. See id. at 669, 673. When 4 those medications did not appear to have a significant effect on plaintiff’s 5 symptoms, Dr. Le switched to Lyrica, which helped ease the symptoms, but her 6 health plan declined to authorize it. See id. at 658, 661, 664, 669. Dr. Le then 7 switched plaintiff to Gabapentin, which did not provide relief. See id. at 655. In 8 May 2011, Dr. Le initiated a trial of methotrexate and Percocet, which caused a 9 significant reduction in pain and stiffness. See id. at 652, 657. Due to side effects, 10 however, plaintiff was taken off of methotrexate in May 2012. See id. at 634, 639, 11 642. By April 2013, plaintiff reported the Percocet was no longer effective so Dr. 12 Le added Humira to the treatment regimen. See id. at 619, 621. Dr. Le 13 discontinued the Humira four months later due to the lack of improvement and side 14 effect of skin lesions. See id. at 606. Dr. Le then treated plaintiff with Enbrel for 15 six months before switching to Remicade. See id. at 918, 1061. On December 8, 2014, Dr. Le completed a Medical Source Statement of 16 17 Ability to Do Work Related Activities (“2014 Opinion”). Id. at 1077-79. Dr. Lee 18 diagnosed plaintiff with rheumatoid arthritis based on plaintiff’s reported 19 symptoms and the clinical findings, including the positive ANA tests and elevated 20 C-reactive protein. Id. at 1077. Dr. Le opined plaintiff: could sit for only twenty 21 minutes a time for a total of four hours; could stand for ten minutes at a time; could 22 stand or walk for less than a total of two hours in a normal workday; and required 23 the option to shift positions at will from sitting, standing, and walking. Id. at 107724 78. Dr. Le also opined plaintiff required a job that allowed her to take an 25 26 Seronegative rheumatoid arthritis is the diagnosis of rheumatoid arthritis 27 without the presence of certain antibodies in the patient’s blood. See 28 https://www.rheumatoidarthritis.org/ra/types/seronegative/. 4 8 1 unscheduled break every thirty minutes; could occasionally lift less than ten 2 pounds; had various postural, manipulative, and environmental limitations; and 3 would be off task for at least twenty-five percent of the time. Id. at 1078-79. 4 2. The Stage Agency Physicians 5 Dr. F. Kalmar and Dr. J. Hartman, state agency physicians, reviewed 6 plaintiff’s medical records as of November 2013 and February 2014 respectively. 7 See id. at 116-24, 134-43. Based on a review of the records, both state agency 8 physicians diagnosed plaintiff with inflammatory arthritis. See id. at 109, 124, 9 139, 151. The state agency physicians opined plaintiff had the RFC to: lift and/or 10 carry twenty pounds occasionally and ten pounds frequently; stand and/or walk 11 about six hours in an eight-hour workday; sit for about six hours in an eight-hour 12 workday; and occasionally climb ramps/stairs, balance, stoop, kneel, crouch, and 13 crawl. See id. at 110-11, 125-26, 140-41, 152-53. The state agency physicians 14 also opined plaintiff had certain environmental limitations. See id. at 111, 126, 15 141, 153. 16 3. The ALJ’s Findings5 17 In reaching his RFC determination, the ALJ gave great weight to the 18 opinions of the state agency physicians, finding that the opinions were consistent 19 with the objective medical evidence. Id. at 30-31. Without expressly stating so, 20 the ALJ gave no weight to the opinion of Dr. Le. Id. at 31. The ALJ stated Dr. Le 21 failed to provide clinical or diagnostic findings to support his functional 22 assessment, and Dr. Le’s opinion was inconsistent with the objective medical 23 24 At step two, the ALJ found plaintiff suffered from the severe impairment of 25 systemic lupus erythematosus. AR at 22. It is unclear to this court how the ALJ 26 reached this determination. Although lupus was suspected, the treating and state agency physicians all concluded that plaintiff did not suffer from lupus. See id. at 27 109, 124, 139, 151, 1077. Nevertheless, despite the apparent lack of substantial 28 evidence supporting the ALJ’s step two finding, it does not affect this decision. 5 9 1 evidence. Id. 2 The ALJ’s first reason for discounting Dr. Le’s opinion – failure to provide 3 medically acceptable clinical or diagnostic findings – was not supported by 4 substantial evidence. Id. In the 2014 Opinion, Dr. Le diagnosed plaintiff with 5 rheumatoid arthritis and listed several clinical findings to support his opinion – 6 plaintiff’s joint tenderness and swelling, positive ANA test, and elevated C7 reactive protein. Id. at 1077. The treatment records documenting these findings 8 were a part of the administrative record. See, e.g., id. at 602, 647, 677, 744, 929, 9 931, 1060. Accordingly, a failure to provide clinical or diagnostic findings was not 10 a legally sufficient reason to give Dr. Le’s opinion no weight. 11 The ALJ’s second reason for giving Dr. Le’s opinion no weight was that it 12 was inconsistent with the objective medical evidence. See id. at 31; Batson v. 13 Comm’r, 359 F.3d 1190,1195 (9th Cir. 2004) (holding that an ALJ may discredit 14 physicians’ opinions that are “unsupported by the record as a whole . . . or by 15 objective medical findings”). The ALJ determined the evidence only showed mild 16 to moderate tenderness to palpation at the fingers, wrist, and ankle joints. See AR 17 at 31. Although the ALJ correctly found that Dr. Le only reported mild to 18 moderate tenderness in some of the treatment notes, a large percentage of the 19 treatment notes indicated findings of tenderness in the fingers, wrists, elbows, and 20 ankles without reference to severity, as well as tender points. See, e.g., id. at 535, 21 620, 647, 653, 671, 677. In addition to tenderness, there were other physical 22 findings and clinical tests to support Dr. Le’s opinion. Dr. Le observed plaintiff 23 had Raynaud’s phenomenon, muscle weakness, and parathesia. See, e.g., id. at 24 602, 608, 635, 647, 1060. And the laboratory findings indicated plaintiff had 25 positive ANA tests and an elevated C-reactive protein. See, e.g., id. at 744, 929, 26 931, 933, 935. As such, the ALJ’s second reason for discounting Dr. Le’s opinion 27 – inconsistency with the objective medical evidence – was similarly not supported 28 10 1 by substantial evidence. 2 Accordingly, the ALJ failed to cite specific and legitimate reasons supported 3 by substantial evidence for giving Dr. Le’s opinion no weight. 4 B. The ALJ Failed to Properly Consider Plaintiff’s Credibility 5 Plaintiff argues the ALJ failed to properly consider her credibility. P. Mem. 6 at 6-9. Specifically, plaintiff contends the reasons offered for finding her less 7 credible were not clear and convincing and supported by substantial evidence. 8 The ALJ must make specific credibility findings, supported by the record. 9 Social Security Ruling (“SSR”) 96-7p.6 To determine whether testimony 10 concerning symptoms is credible, the ALJ engages in a two-step analysis. 11 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, the ALJ 12 must determine whether a claimant produced objective medical evidence of an 13 underlying impairment “‘which could reasonably be expected to produce the pain 14 or other symptoms alleged.’” Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 15 341, 344 (9th Cir. 1991) (en banc)). Second, if there is no evidence of 16 malingering, an “ALJ can reject the claimant’s testimony about the severity of her 17 symptoms only by offering specific, clear and convincing reasons for doing so.” 18 Smolen, 80 F.3d at 1281; accord Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 19 2003). The ALJ may consider several factors in weighing a claimant’s credibility, 20 including: (1) ordinary techniques of credibility evaluation such as a claimant’s 21 reputation for lying; (2) the failure to seek treatment or follow a prescribed course 22 of treatment; and (3) a claimant’s daily activities. Tommasetti v. Astrue, 533 F.3d 23 24 25 26 27 28 “The Commissioner issues Social Security Rulings to clarify the Act’s implementing regulations and the agency’s policies. SSRs are binding on all components of the SSA. SSRs do not have the force of law. However, because they represent the Commissioner’s interpretation of the agency’s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations.” Holohan, 246 F.3d at 1203 n.1 (internal citations omitted). 6 11 1 1035, 1039 (9th Cir. 2008); Bunnell, 947 F.2d at 346-47. 2 At the first step, the ALJ found plaintiff’s medically determinable 3 impairments could reasonably be expected to cause the symptoms alleged. AR at 4 27. At the second step, because the ALJ did not find any evidence of malingering, 5 the ALJ was required to provide clear and convincing reasons for discounting 6 plaintiff’s credibility. Here, the ALJ discounted plaintiff’s credibility because: (1) 7 her alleged symptoms were inconsistent with the objective evidence; (2) her 8 activities of daily living were inconsistent with her alleged symptoms; and (3) 9 plaintiff received conservative treatment. Id. at 26. 10 In a Function Report dated October 11, 2013 plaintiff stated she was very 11 fatigued, had lots of pain, would lose sensation in her hands and legs, could only 12 walk about half a block without needing to rest, and used a cane to walk. See id. at 13 299, 304-05. Plaintiff reported she needed help with personal hygiene, seldom 14 cooked because the heat from the stove caused pain and swelling in her hands, and 15 it took her four and a half hours to do laundry and clean. See id. at 299, 301. 16 At the December 9, 2014 hearing, plaintiff testified that she was very 17 fatigued, her medicine made her drowsy, and she had constant pain in her joints. 18 See id. at 45, 48-49. Plaintiff testified that, in a typical day, she laid down for an 19 hour and a half after taking her medications for a total of about four to six hours in 20 a day, saw her children leave for school, and helped her children with their 21 homework for thirty minutes. Id. at 48. Plaintiff sometimes helped with chores 22 such as washing dishes and cleaning the counters, but could only do it for about 23 forty-five minutes before needing a break and only for a total of two hours in a 24 day. See id. at 49-50. Plaintiff explained she could not cook because her finger 25 joints locked when she got near heat. See id. at 50. Plaintiff further testified that, 26 about two days a week, she was able to take her children to school, which was 0.8 27 miles away. See id. 28 12 1 The first reason the ALJ provided for finding plaintiff less credible was that 2 the severity of her alleged symptoms was inconsistent with the objective evidence. 3 Id. at 26; see Bunnell, 947 F.2d at 346-47 (the lack of objective medical evidence 4 to support a claimant’s pain allegations may be a factor to consider in the 5 credibility assessment but may not be the sole reason to discredit a claimant). But 6 as discussed above, there was objective medical evidence to support plaintiff’s 7 symptoms. Dr. Le observed tenderness in plaintiff’s joints, in particular in her 8 fingers and ankle, and that plaintiff had a painful arc of the shoulders, Raynaud’s 9 phenomenon, muscle weakness, and parasthesia. See, e.g., AR at 535, 602, 620, 10 647, 653, 677, 1072. Moreover, the blood tests indicated plaintiff had positive 11 ANA tests on occasions and an elevated C-reactive protein. See, e.g., id. at 744, 12 929, 935. 13 Second, the ALJ discounted plaintiff’s credibility because her daily activities 14 were inconsistent with a debilitating condition and some of the physical and mental 15 abilities required to perform her daily activities were transferable to an 16 employment setting. Id. at 26. Inconsistency between a claimant’s alleged 17 symptoms and her daily activities may be a clear and convincing reason to find a 18 claimant less credible. Tommasetti, 533 F.3d at 1039. But “the mere fact a 19 [claimant] has carried on certain daily activities, such as grocery shopping, driving 20 a car, or limited walking for exercise, does not in any way detract from her 21 credibility as to her overall disability.” Vertigan v. Halter, 260 F.3d 1044, 1050 22 (9th Cir. 2001). A claimant does not need to be “utterly incapacitated.” Fair v. 23 Bowen, 885 F.2d 597, 603 (9th Cir. 1989). The activities cited by the ALJ were 24 not inconsistent with plaintiff’s alleged symptoms. Notwithstanding the fact that 25 plaintiff somewhat inconsistently testified she could not cook and reported she 26 27 28 13 1 could not take care of her children,7 plaintiff’s ability to perform chores in forty2 five-minute intervals for a total of two hours, help her children with homework in 3 thirty-minute intervals, drive 0.8 miles to her children’s school twice a week, and 4 perform personal grooming activities was not inconsistent with her testimony 5 concerning her pain, fatigue, and need to rest. 6 Morever, although a claimant’s ability “to spend a substantial part of [her] 7 day engaged in pursuits involving the performance of physical functions that are 8 transferable to a work setting” may be sufficient to discredit her, this was not the 9 case here. See Morgan, 169 F.3d at 600. While plaintiff’s ability to do chores and 10 help her children with homework may be transferrable to a work setting, the record 11 does not indicate that plaintiff spent a substantial part of her day engaging in such 12 activities. As such, the evidence does not support the ALJ’s finding that plaintiff’s 13 daily activities were inconsistent with her alleged symptoms. The ALJ’s final reason for finding plaintiff less credible – conservative 14 15 treatment – was similarly not clear and convincing and supported by substantial 16 evidence. See AR at 26; Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) 17 (“[E]vidence of conservative treatment is sufficient to discount a claimant’s 18 testimony regarding severity of an impairment.”) (internal quotation marks and 19 citation omitted). The ALJ found plaintiff did not “generally receive[] the type of 20 medical treatment one would expect for a totally disabled individual.” AR at 26. 21 To the contrary, the treatment records indicate Dr. Le treated plaintiff’s rheumatoid 22 arthritis aggressively. As discussed above, Dr. Le prescribed an aggressive 23 regimen of drugs, including prednisone, hydrooxychloroquine, methotrexate, 24 Humira, and Remicade. See id. at 621, 652, 669, 673, 1061. Plaintiff often 25 The ALJ stated plaintiff testified she prepared simple meals, but then also stated that plaintiff testified she could not cook due to her joints locking. See AR 27 at 25. Plaintiff testified and reported that she did not cook; however, she reported 28 to a consultative psychiatrist that she cooked. See id. at 903. 26 7 14 1 experienced significant side effects such as transaminitis and skin lesions, 2 requiring Dr. Le to switch her to a new regimen. See id. at 606, 634. Although 3 plaintiff had not undergone any surgical treatments, there is no evidence to suggest 4 that her treatment was conservative. See Gentry v. Comm’r, 741 F.3d 708, 725 5 (6th Cir. 2014) (finding that the prescription of higher risk biologic medications 6 such as methotrexate and Humira indicated claimant’s arthritic condition was at 7 least moderate to severe); Jones v. Astrue, 2008 WL 1970645, at *16 (E.D. Cal. 8 May 5, 2008) (suggesting Remicade and Humira injections were not conservative 9 treatment); but see Nash v. Astrue, 2012 WL 6700582, at *9 (C.D. Cal. Dec. 21, 10 2012) (declining to second guess the ALJ’s characterization of Humira and 11 Remicade as conservative treatment). 12 Accordingly, the ALJ failed to properly consider plaintiff’s credibility. The 13 reasons provided for discounting plaintiff’s credibility were not clear and 14 convincing and supported by substantial evidence. 15 V. 16 REMAND IS APPROPRIATE 17 The decision whether to remand for further proceedings or reverse and 18 award benefits is within the discretion of the district court. McAllister v. Sullivan, 19 888 F.2d 599, 603 (9th Cir. 1989). It is appropriate for the court to exercise this 20 discretion to direct an immediate award of benefits where: “(1) the record has been 21 fully developed and further administrative proceedings would serve no useful 22 purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting 23 evidence, whether claimant testimony or medical opinions; and (3) if the 24 improperly discredited evidence were credited as true, the ALJ would be required 25 to find the claimant disabled on remand.” Garrison v. Colvin, 759 F.3d 995, 1020 26 (9th Cir. 2014) (setting forth three-part credit-as-true standard for remanding with 27 instructions to calculate and award benefits). But where there are outstanding 28 15 1 issues that must be resolved before a determination can be made, or it is not clear 2 from the record that the ALJ would be required to find a plaintiff disabled if all the 3 evidence were properly evaluated, remand for further proceedings is appropriate. 4 See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 5 211 F.3d 1172, 1179-80 (9th Cir. 2000). In addition, the court must “remand for 6 further proceedings when, even though all conditions of the credit-as-true rule are 7 satisfied, an evaluation of the record as a whole creates serious doubt that a 8 claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021. 9 Here, remand is required because the ALJ failed to properly consider Dr. 10 Le’s opinion and plaintiff’s credibility. On remand, the ALJ shall consider the 11 physical limitations opined by Dr. Le and either credit his opinion or provide 12 specific and legitimate reasons supported by substantial evidence for rejecting it. 13 The ALJ shall also reconsider plaintiff’s credibility, and either credit her subjective 14 complaints or provide clear and convincing reasons for rejecting them. The ALJ 15 shall then again determine plaintiff’s severe impairments at step two, reassess 16 plaintiff’s RFC, and proceed through steps four and five to determine what work, if 17 any, plaintiff is capable of performing. 18 VI. 19 CONCLUSION 20 IT IS THEREFORE ORDERED that Judgment shall be entered 21 REVERSING the decision of the Commissioner denying benefits, and 22 REMANDING the matter to the Commissioner for further administrative action 23 consistent with this decision. 24 25 DATED: January 31, 2018 26 27 SHERI PYM United States Magistrate Judge 28 16
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