Candido Benjamin Castaneda v. Carolyn W. Colvin, No. 5:2016cv02528 - Document 23 (C.D. Cal. 2018)
Court Description: MEMORANDUM DECISION AND ORDER REVERSING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered REVERSING the Commissioner's decision, GRANTING Plaintiff's request for remand, and REMANDING this action for further proceedings consistent with this memorandum decision. (See Order for details) (bem)
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Candido Benjamin Castaneda v. Carolyn W. Colvin Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CANDIDO BENJAMIN CASTANEDA, Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 16 Defendant. ) Case No. EDCV 16-2528-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) REVERSING COMMISSIONER ) ) ) ) ) ) ) 17 18 19 I. PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 20 denying his applications for Social Security disability insurance 21 benefits (“DIB”) and supplemental security income benefits 22 (“SSI”). 23 undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 24 matter is before the Court on the parties’ Joint Stipulation, 25 filed August 22, 2017, which the Court has taken under submission 26 without oral argument. The parties consented to the jurisdiction of the The For the reasons stated below, the 27 1 28 Nancy A. Berryhill is substituted in as the correct Defendant. See Fed. R. Civ. P. 25(d). 1 Dockets.Justia.com 1 Commissioner’s decision is reversed and this action is remanded 2 for further proceedings. 3 II. 4 BACKGROUND Plaintiff was born in 1965. (Administrative Record (“AR”) 5 126, 139.) 6 and last worked in 2012 as a welder (AR 149, 384). 7 He has a third-grade education (AR 59, 105-06, 384) On March 20 and 28, 2013, Plaintiff applied for DIB and SSI, 8 respectively, alleging that he had been unable to work since 9 January 30, 2012 (AR 321-24, 328-38), because of surgeries on his 10 right elbow, hand, and wrist; elbow swelling; tendinosis;2 11 tenderness, spasms, and decreased dermatomes in his right upper 12 arm; tendonitis in his right arm; swelling from the right side of 13 his neck to his right hand; high blood pressure; and anxiety 14 attacks (see AR 126, 139). 15 initially and on reconsideration (see AR 137, 150, 215-19, 221- 16 26), he requested a hearing before an Administrative Law Judge 17 (AR 228-29). 18 100-25), and a second hearing on April 23, 2015, at which 19 Plaintiff, who was represented by counsel, testified, as did a 20 medical and a vocational expert (AR 54-99). 21 decision issued May 28, 2015, the ALJ found Plaintiff not 22 disabled. 23 additional evidence. After his applications were denied A first hearing was held on December 23, 2014 (AR (AR 36-53.) In a written Plaintiff requested review and submitted (See AR 25-26, 852-943.) On October 26, 24 25 26 27 28 2 “Tendinosis” describes a chronically damaged tendon with disorganized fibers and a hard, thickened, scarred, and rubbery appearance. See Tendinitis or Tendinosis?, Cleveland Clinic, https://health.clevelandclinic.org/2016/11/tendinitis-tendinosisdifference-important-treatments-help/ (last updated Nov. 10, 2016). 2 1 2016, the Appeals Council denied review, finding that the 2 additional evidence related to a later period and did not warrant 3 changing the ALJ’s decision. 4 the new evidence be made part of the administrative record. 5 6.) 6 III. STANDARD OF REVIEW 7 (AR 1-5.) The council ordered that (AR This action followed. Under 42 U.S.C. § 405(g), a district court may review the 8 Commissioner’s decision to deny benefits. 9 decision should be upheld if they are free of legal error and The ALJ’s findings and 10 supported by substantial evidence based on the record as a whole. 11 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 12 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 13 evidence means such evidence as a reasonable person might accept 14 as adequate to support a conclusion. 15 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 16 It is more than a scintilla but less than a preponderance. 17 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 18 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 19 substantial evidence supports a finding, the reviewing court 20 “must review the administrative record as a whole, weighing both 21 the evidence that supports and the evidence that detracts from 22 the Commissioner’s conclusion.” 23 720 (9th Cir. 1998). 24 either affirming or reversing,” the reviewing court “may not 25 substitute its judgment” for the Commissioner’s. 26 IV. Substantial Richardson, 402 U.S. at To determine whether Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support Id. at 720-21. THE EVALUATION OF DISABILITY 27 People are “disabled” for purposes of receiving Social 28 Security benefits if they are unable to engage in any substantial 3 1 gainful activity owing to a physical or mental impairment that is 2 expected to result in death or has lasted, or is expected to 3 last, for a continuous period of at least 12 months. 4 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 5 1992). 42 U.S.C. 6 A. 7 The ALJ follows a five-step sequential evaluation process to The Five-Step Evaluation Process 8 assess whether a claimant is disabled. 20 C.F.R. 9 §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 10 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). 11 step, the Commissioner must determine whether the claimant is 12 currently engaged in substantial gainful activity; if so, the 13 claimant is not disabled and the claim must be denied. 14 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). In the first 15 If the claimant is not engaged in substantial gainful 16 activity, the second step requires the Commissioner to determine 17 whether the claimant has a “severe” impairment or combination of 18 impairments significantly limiting his ability to do basic work 19 activities; if not, the claimant is not disabled and his claim 20 must be denied. 21 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of 22 impairments, the third step requires the Commissioner to 23 determine whether the impairment or combination of impairments 24 meets or equals an impairment in the Listing of Impairments set 25 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 26 disability is conclusively presumed. 27 416.920(a)(4)(iii). 28 §§ 404.1520(a)(4)(iii), If the claimant’s impairment or combination of impairments 4 1 does not meet or equal an impairment in the Listing, the fourth 2 step requires the Commissioner to determine whether the claimant 3 has sufficient residual functional capacity (“RFC”)3 to perform 4 his past work; if so, he is not disabled and the claim must be 5 denied. 6 has the burden of proving he is unable to perform past relevant 7 work. 8 burden, a prima facie case of disability is established. 9 §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Drouin, 966 F.2d at 1257. The claimant If the claimant meets that Id. If that happens or if the claimant has no past relevant 10 work, the Commissioner then bears the burden of establishing that 11 the claimant is not disabled because he can perform other 12 substantial gainful work available in the national economy. 13 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. 14 That determination comprises the fifth and final step in the 15 sequential analysis. 16 Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); 17 B. 18 At step one, the ALJ found that Plaintiff had not engaged in The ALJ’s Application of the Five-Step Process 19 substantial gainful activity since January 30, 2012, the alleged 20 onset date. 21 severe impairments of “Bell’s palsy; De Quervain’s tendinitis of 22 the right wrist; right elbow tendinosis status post 23 epicondylectomy; cervical radiculopathy; and right shoulder (AR 38.) At step two, he concluded that he had 24 25 26 27 28 3 RFC is what a claimant can do despite existing exertional and nonexertional limitations. §§ 404.1545, 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing § 416.920(a)(4)). 5 1 osteoarthritis.” 2 Plaintiff did not have an impairment or combination of 3 impairments falling under a Listing. 4 (Id.) At step three, the ALJ found that (AR 42.) At step four, the ALJ found that Plaintiff had the RFC to 5 perform medium work, specifically noting that he could “lift 6 and/or carry 50 pounds occasionally and 25 pounds frequently; 7 push and pull on a frequent basis within the weight limitations 8 described; and occasionally perform overhead work with the 9 dominant right upper extremity.” (AR 42.) He had “no 10 limitations in standing, walking, or sitting[;] . . . [could] 11 frequently stoop, bend, crawl, kneel, squat, and balance; and 12 [could] frequently climb ramps and stairs, but never climb 13 ladders, ropes, or scaffolds.” 14 testimony, the ALJ concluded that Plaintiff was “capable of 15 performing [his] past relevant work as an arc welder and 16 combination welder.” 17 not disabled. 18 V. 19 (Id.) (AR 47-48.) Based on the VE’s Thus, the ALJ found Plaintiff (AR 48.) DISCUSSION Plaintiff argues that (1) the ALJ erred in evaluating the 20 credibility of his subjective symptom statements and (2) “new and 21 material evidence establishes that the [ALJ’s RFC] assessment is 22 not based on substantial evidence and free of legal error.” 23 Stip. at 4.) 24 matter must be remanded for further analysis and findings. 25 26 27 28 A. (J. Because the ALJ erred in the first regard, the The ALJ Erred in Assessing the Credibility of Plaintiff’s Subjective Symptom Statements Plaintiff argues that the ALJ “fail[ed] to provide clear and convincing reasons to reject [his] subjective symptoms.” 6 (See J. 1 Stip. at 14-18, 23.) 2 3 1. He is correct. Applicable law An ALJ’s assessment of the credibility of a claimant’s 4 allegations concerning the severity of his symptoms is entitled 5 to “great weight.” 6 Cir. 1989) (as amended); Nyman v. Heckler, 779 F.2d 528, 531 (9th 7 Cir. 1985) (as amended Feb. 24, 1986). 8 ‘required to believe every allegation of disabling pain, or else 9 disability benefits would be available for the asking, a result See Weetman v. Sullivan, 877 F.2d 20, 22 (9th “[T]he ALJ is not 10 plainly contrary to 42 U.S.C. § 423(d)(5)(A).’” 11 Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. 12 Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 13 Molina v. In evaluating a claimant’s subjective symptom testimony, the 14 ALJ engages in a two-step analysis. 15 at 1035-36; see also SSR 96-7p, 1996 WL 374186 (July 2, 1996).4 16 “First, the ALJ must determine whether the claimant has presented 17 objective medical evidence of an underlying impairment [that] 18 could reasonably be expected to produce the pain or other See Lingenfelter, 504 F.3d 19 20 21 22 23 24 25 26 27 28 4 Social Security Ruling 16-3p, 2016 WL 1119029, effective March 16, 2016, rescinded SSR 96-7p, which provided the framework for assessing the credibility of a claimant’s statements. SSR 16-3p was not in effect at the time of the ALJ’s decision in this case, however, and therefore does not apply. Still, the Ninth Circuit has clarified that SSR 16-3p “makes clear what our precedent already required: that assessments of an individual’s testimony by an ALJ are designed to ‘evaluate the intensity and persistence of symptoms after [the ALJ] find[s] that the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms,’ and not to delve into wide-ranging scrutiny of the claimant’s character and apparent truthfulness.” Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (as amended) (alterations in original) (quoting SSR 16-3p). 7 1 symptoms alleged.” 2 objective medical evidence exists, the ALJ may not reject a 3 claimant’s testimony “simply because there is no showing that the 4 impairment can reasonably produce the degree of symptom alleged.” 5 Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in 6 original). 7 Lingenfelter, 504 F.3d at 1036. If such If the claimant meets the first test, the ALJ may discredit 8 the claimant’s subjective symptom testimony only if he makes 9 specific findings that support the conclusion. See Berry v. 10 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). 11 affirmative evidence of malingering, the ALJ must provide “clear 12 and convincing” reasons for rejecting the claimant’s testimony. 13 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as 14 amended); Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 15 1102 (9th Cir. 2014). 16 (1) ordinary techniques of credibility evaluation, such as the 17 claimant’s reputation for lying, prior inconsistent statements, 18 and other testimony by the claimant that appears less than 19 candid; (2) unexplained or inadequately explained failure to seek 20 treatment or to follow a prescribed course of treatment; (3) the 21 claimant’s daily activities; (4) the claimant’s work record; and 22 (5) testimony from physicians and third parties. 23 Comm’r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as 24 amended); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 25 2002). 26 substantial evidence in the record, the reviewing court “may not 27 engage in second-guessing.” Absent a finding or The ALJ may consider, among other factors, Rounds v. If the ALJ’s credibility finding is supported by Thomas, 278 F.3d at 959. 28 8 1 2 2. Relevant background5 On June 3, 2011, Plaintiff injured his right arm at work 3 while lifting a metal bar with a crane. 4 attended physical therapy and received a series of four 5 injections. 6 underwent surgery of the right arm to repair a lacerated tendon. 7 (See AR 513, 526, 665, 693, 704.) 8 9 (See AR 465, 513, 690.) (AR 513, 586, 703.) He On November 9, 2011, he On May 12, 2012, an MRI of Plaintiff’s right elbow showed “[a]bnormal hyperintense signal and thickening . . . in the 10 common extensor tendon.” 11 normal. 12 Plaintiff had “[t]endinosis of the common extensor tendon” and 13 “[m]ild joint effusion.” 14 15 (See id.) (AR 500.) All other results were The radiologist’s impression was that (AR 500-01.) Dr. Arman Ghods, a chiropractor who initially saw Plaintiff on April 26, 2012, diagnosed him with failed right-elbow tendon 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Some medical notes were not in the record at the time of the ALJ’s decision but were submitted to the Appeals Council. (See AR 6, 853-943.) Social Security Administration regulations “permit claimants to submit new and material evidence to the Appeals Council and require the Council to consider that evidence in determining whether to review the ALJ’s decision, so long as the evidence relates to the period on or before the ALJ’s decision.” Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012); see also §§ 404.970(b), 416.1470(b). “[W]hen the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner’s final decision for substantial evidence.” Brewes, 682 F.3d at 1163; see also Borrelli v. Comm’r of Soc. Sec., 570 F. App’x 651, 652 (9th Cir. 2014) (remand necessary when “reasonable possibility” exists that “the new evidence might change the outcome of the administrative hearing”). Although many of the newly submitted records are from after the ALJ’s May 28, 2015 decision (see AR 855-76, 896-99, 925-36), some are from before (see AR 877-79, 884-95, 900-19, 937-43). The Court includes in its review those earlier records. 9 1 surgery, right-elbow teninosis, and insomnia. 2 17, 2012, Dr. Ghods referred him to physiatrist6 Ronald Schilling 3 for an electromyographic study of the cervical spine and upper 4 extremities. 5 “abnormal” “pattern consistent with a right C7 radiculopathy.” 6 (AR 505.) 7 for symptomatic relief.” 8 9 (See AR 504-05.) (AR 487.) On May The EMG results showed an Dr. Schilling recommended “continued conservative care (AR 507.) On July 17, 2012, Plaintiff saw Dr. Archie Mays for an orthopedic consultation. (AR 512-18.) Dr. Mays observed that 10 Plaintiff’s “entire right upper extremity [was] swollen and . . . 11 edematous as compared to that of the left side.” 12 had “global loss of sensation to the right upper extremity from 13 elbow down,” and his “[r]eflexes [were] blunted on the right at 14 the brachial radialis, triceps, and biceps tendons.” 15 Mays diagnosed Plaintiff with “[r]ight elbow trauma disrupting 16 the common extensor tendon status post surgical intervention with 17 probably failed surgery” and recommended he “be seen by [a] 18 competent upper extremity orthopedic specialist for the 19 contemplation of revision surgery.” 20 recommended that Plaintiff “continue with [medication and] 21 physical therapy,” he opined that Plaintiff was “in need of more 22 aggressive concerns.” 23 received three shock-wave penetration procedures to treat the (Id.) (AR 516.) (AR 515.) He (Id.) Dr. Although he In July and August 2012, Plaintiff 24 25 26 27 28 6 A physiatrist treats medical conditions affecting the brain, spinal cord, nerves, bones, joints, ligaments, muscles, and tendons. See What is a Physiatrist?, American Academy of Physical Medicine and Rehabilitation, http://www.aapmr.org/ about-physiatry/about-physical-medicine-rehabilitation/ what-is-physiatry (last visited Jan. 22, 2018). 10 1 pain in his right elbow. 2 (AR 523-24, 564.) On June 11, 2013, Plaintiff saw consulting orthopedic 3 surgeon Vicente Bernabe for an examination. 4 Plaintiff complained of “right elbow and wrist pain,” “described 5 as a sharp, dull, throbbing, burning pain in his right elbow that 6 radiate[d] to [his] right wrist and into [his] neck.” 7 His pain was “exacerbated by prolonged lifting, reaching and any 8 use of the right arm.” 9 of [Plaintiff’s] right shoulder,” but his right elbow “was very (Id.) (AR 465-69.) (AR 465.) Dr. Bernabe found “no instability 10 tender to palpation.” 11 tenderness in the insertion of the extensor tendon into the 12 lateral epicondyle against resisted supination and pronation.” 13 (Id.) 14 both wrists, with “full and painless” range of motion “in all 15 planes,” but he had a “positive Finkelstein’s test on the right 16 wrist.”7 17 varicosities, edema, dermatitis, or ulcerations” in his 18 extremities. 19 “[c]hronic lateral epicondylitis of the right elbow” and “De 20 Quervain’s tendinitis of the right wrist.” 21 22 (AR 467.) There also was “significant “The inspection revealed normal alignment and contour” of (Id.) “Overall, there was no cyanosis, clubbing, (AR 468.) Dr. Bernabe diagnosed Plaintiff with (AR 468-69.) At Molina Medical Clinic on October 25, 2013, Plaintiff reported that he was “[g]etting injections,” and a physical 23 7 24 25 26 27 28 A positive Finkelstein test confirms a diagnosis of de Quervain’s tenosynovitis. See Finkelstein Test, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/de-quervainstenosynovitis/multimedia/finkelstein-test/img-20005987 (last visited Jan. 22, 2018). De Quervain’s tenosynovitis is a painful inflammation of tendons in the thumb extending to the wrist. See What’s de Quervain’s Tenosynovitis?, WebMD, https:// www.webmd.com/rheumatoid-arthritis/guide/de-quervains-disease (last updated Nov. 11, 2017). 11 1 examination showed he had “mild edema” and a “limited” range of 2 motion in his right arm. 3 arm was rated a “2” out of “5.” 4 “see [an] orthopedic specialist for [his] right arm injury,” but 5 he declined because he was “concerned that it [would] affect his 6 workman’s comp case.” 7 (AR 600, 602.) His strength in that (AR 602.) It was recommended he (AR 621-22.) On August 18, 2014, Plaintiff saw Dr. Michele Van Dyke, a 8 chiropractor. (AR 689-700.) Plaintiff complained of “constant 9 right shoulder pain that radiated to [his] elbow and hand” and 10 rated the pain at “9/10.” 11 “right hand/elbow pain” and “numbness/tingling in [his] right 12 hand/forearm.” 13 daily” and was apparently taking hydrocodone,8 among other 14 medications. 15 “[p]oor recovery” from his 2011 surgery and recommended “another 16 surgical consultation” and a “possible steroid injection in [his] 17 shoulder.” 18 (Id.) (AR 691.) He also complained of He “us[ed] a brace, splint and a TENS unit (AR 692.) Dr. Van Dyke noted that Plaintiff had (AR 697-98.) On August 28, 2014, a second EMG study was “within normal 19 limits,” with “no evidence of entrapment neuropathy or peripheral 20 neuropathy noted.” 21 Plaintiff saw Dr. Kourosh Noormand, a pain-management specialist, 22 for evaluation of his right shoulder and elbow (AR 675-79), and 23 Dr. Noormand diagnosed him with “[r]ight ulnar nerve neuropathy,” 24 “[r]ight hand reflex sympathetic dystrophy,” and (AR 668-74.) On September 16, 2014, 25 26 8 27 28 Hydrocodone is a narcotic medication used to relieve moderate to severe pain. See Hydrocodone-Acetaminophen, WebMD, https://www.webmd.com/drugs/2/drug-251/hydrocodone-acetaminophenoral/details (last visited Jan. 22, 2018). 12 1 “[h]ypertension.” 2 would benefit from “comprehensive chronic pain management,” 3 recommended a “right stellate ganglion block,”9 and gave him a 4 “Toradol 60 mg IM injection.”10 5 Neurontin11 and trazodone.12 6 (AR 677.) Dr. Noormand opined that Plaintiff (AR 678.) He also prescribed (Id.) Plaintiff also had ongoing issues related to his Bell’s 7 Palsy. 8 left hemifacial spasm as early as September 15, 2009. 9 455-56.) He was diagnosed by neurologist Richard Tindall with a (See AR He visited the Arrowhead Regional Medical Center Clinic 10 on November 5, 2013, seeking treatment for a “[f]acial [n]erve 11 [d]isorder.” 12 observed that Plaintiff had “nearly [one spasm] every 10 13 seconds,” with each one “last[ing] several seconds,” and 14 diagnosed him with a facial nerve disorder. 15 Dr. Habbestad requested authorization for a Botox injection for (AR 628.) ENT-otolaryngologist Robbert Habbestad (See AR 735, 757.) 16 9 17 18 19 20 21 22 23 A stellate ganglion block is an injection of local anesthetic typically used to treat pain caused by overactive nerves. See Stellate Ganglion Blocks, Centers for Pain Control, https://discover-cpc.com/pain-management/patient-educationinformation/stellate-ganglion-blocks/ (last visited Jan. 22, 2018). The injection often needs to be performed in a series to “retrain” those nerves to fire normally. Id. 10 Toradol is given by injection into a muscle or vein and is used for the short-term treatment of moderate to severe pain. See Toradol Solution, WebMD, https://www.webmd.com/drugs/2/ drug-6418/toradol-injection/details (last visited Jan. 22, 2018). 11 24 25 Neurontin is an anticonvulsant used to relieve nerve pain in adults. See Neurontin Capsule, WebMD, https://www.webmd.com/ drugs/2/drug-9845-8217/neurontin-oral/gabapentin-oral/details (last visited Jan. 22, 2018). 26 12 27 28 Trazodone treats depression and decreases anxiety and insomnia related to depression. See Trazodone HCL, WebMD, https://www.webmd.com/drugs/2/drug-11188-89/trazodone-oral/ trazodone-oral/details (last visited Jan. 22, 2018). 13 1 his upper and lower lid and brow. 2 22, 2014, Plaintiff received a Botox injection. 3 stated that it gave him “some improvement” and requested 4 authorization for another. (AR 940.) 5 injection on May 18, 2015. (AR 939.) 6 (AR 735-36, 738.) On October (AR 756.) He He received a second Botox On May 13, 2013, Plaintiff filled out a Function Report. 7 (AR 390-98.) He stated that he “continue[d] to have a lot of 8 pain.” 9 his hair, and shave. (AR 391.) His wife helped him dress, bathe, dry and comb (Id.) She also prepared his food because 10 he “[could not] use [his] right-hand side.” 11 Throughout the report, he reiterated that his activities were 12 limited because he “[could not] move [his] right hand,” he had 13 “no strength,” and he “always [had] a lot of pain” (AR 393; see 14 AR 392, 394-95), though he was “gradually learning to be left- 15 handed” (AR 394). 16 and could walk only “15 minutes” before needing to rest. 17 395.) 18 19 3. (AR 392.) He stated that he could not “lift any weight” (AR Analysis The ALJ was required to provide a “clear and convincing” 20 reason for finding Plaintiff’s testimony only partially credible. 21 See Brown-Hunter, 806 F.3d at 493; Treichler, 775 F.3d at 1102. 22 As argued by Plaintiff (see J. Stip. at 14-18, 23) and discussed 23 below, he failed to do so. 24 First, the ALJ discounted Plaintiff’s credibility because 25 although he “[had] received treatment for the allegedly disabling 26 impairments, that treatment [had] been essentially routine and 27 conservative in nature.” 28 “generally received medication treatment for his conditions” and (AR 43.) 14 He wrote that Plaintiff 1 that the “lack of” “more aggressive” treatment or “surgical 2 intervention suggest[ed] [Plaintiff’s] symptoms and limitations 3 were not as severe as he alleged.” 4 (Id.) In fact, Plaintiff had a lateral epicondylectomy of the 5 right elbow on November 9, 2011 (AR 44), shortly before the 6 alleged onset date. 7 surgery as “failed” (see, e.g., AR 487, 516), and Plaintiff 8 stated that it made his pain “worse” (see AR 690-91). 9 recommended additional surgery (see AR 516, 698), and Dr. Mays Multiple sources in the record described the He was 10 specifically opined that Plaintiff was “in need of more 11 aggressive” intervention (AR 516). Further, Plaintiff’s 12 treatment was not “conservative.” The record shows that 13 Plaintiff took hydrocodone, a narcotic, for his pain (see AR 461, 14 466, 628, 692, 702, 716, 763, 822) and received three shock-wave 15 treatments on his right elbow (AR 523-24, 564). 16 multiple injections to treat his right-elbow and -wrist pain. 17 (See AR 513, 678, 690.) 18 recommended further surgery. 19 narcotics to control pain in conjunction with multiple injections 20 or surgery does not constitute “conservative” treatment. 21 e.g., Lapeirre-Gutt v. Astrue, 382 F. App’x 662, 664 (9th Cir. 22 2010) (treatment with narcotic pain medication, occipital nerve 23 blocks, trigger-point injections, and cervical-fusion surgery not 24 conservative); Samaniego v. Astrue, No. EDCV 11-865 JC, 2012 WL 25 254030, at *4 (C.D. Cal. Jan. 27, 2012) (treatment not 26 conservative when claimant was treated “on a continuing basis” 27 with steroid and anesthetic “trigger point injections,” 28 occasional epidural injections, and narcotic medication and He also received Finally, as noted above, he was twice (See AR 516, 698.) 15 The use of See, 1 doctor recommended surgery); Soltero De Rodriguez v. Colvin, No. 2 CV 14-05765-RAO, 2015 WL 5545038, at *4 (C.D. Cal. Sept. 18, 3 2015) (management of pain through medicine, NMS/TENS unit, and 4 spinal injections not conservative); Ruiz v. Berryhill, No. CV 5 16-2580-SP, 2017 WL 4570811, at *5-6 (C.D. Cal. Oct. 11, 2017) 6 (treatment by “narcotic medication, facet joint injections, and 7 epidural steroid injections” not conservative). 8 9 Defendant argues that Plaintiff’s lack of “medical treatment for his right-elbow pain for almost a year” supports the ALJ’s 10 finding that his treatment overall had been routine and 11 conservative. 12 it may be true that Plaintiff’s treatment was technically 13 “conservative” during that period, the record does not support 14 finding that his treatment as a whole was conservative, as 15 discussed above. 16 symptom-free periods . . . are not inconsistent with 17 disability.”). 18 treatment in finding that Plaintiff’s treatment had been 19 “essentially routine and conservative in nature.” 20 “General findings are insufficient; rather, the ALJ must identify 21 what testimony is not credible and what evidence undermines the 22 claimant’s complaints.” 23 81 F.3d at 834). (J. Stip. at 20 (citing AR 691, 698).)13 Although See Lester, 81 F.3d at 833 (“Occasional Further, the ALJ did not cite any gaps in (AR 43.) Reddick, 157 F.3d at 722 (citing Lester, Thus, this reason cannot support the ALJ’s 24 25 26 27 28 13 In fact, the gap in treatment identified by Defendant lasted 10 months, from October 2013 (see AR 600-02 (Plaintiff examined at clinic for right-arm pain)) to August 2014 (see AR 691 (Plaintiff saw chiropractor for “constant” pain in right arm)). Plaintiff apparently had another 10-month gap in treatment, from August 2012 to June 2013. (See AR 465, 524.) 16 1 finding. 2 1225 (9th Cir. 2009) (district court must “review the ALJ’s 3 decision based on the reasoning and factual findings offered by 4 the ALJ — not post hoc rationalizations that attempt to intuit 5 what the adjudicator may have been thinking”). 6 See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, The only other reason the ALJ cited for discounting 7 Plaintiff’s credibility was the lack of “objective clinical and 8 diagnostic findings in the record.” 9 cannot stand by itself, however, because “an ALJ may not reject a (See AR 44.) This reason 10 claimant’s subjective complaints based solely on a lack of 11 medical evidence to fully corroborate the alleged severity of 12 pain.” 13 (citing Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) 14 (en banc)). 15 evidence is clear, that cannot be the sole reason for the 16 credibility findings. 17 517, 520 (9th Cir. 2017); Gama v. Colvin, 611 F. App’x 445, 446 18 (9th Cir. 2015) (when one reason ALJ gave for discounting 19 plaintiff’s credibility was erroneous and “the only remaining 20 reason to discount [plaintiff’s] credibility was a lack of 21 objective medical evidence,” “error was not harmless”). 22 Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) Indeed, even if the lack of objective medical See Kauffman v. Berryhill, 686 F. App’x For all these reasons, the ALJ failed to provide a clear and 23 convincing reason for his adverse credibility determination. 24 Plaintiff is therefore entitled to remand on this ground. 25 B. 26 Plaintiff “seeks an order from the Court reversing the final Remand for Further Proceedings Is Appropriate 27 decision and awarding benefits.” 28 here, an ALJ errs, the Court generally has discretion to remand 17 (J. Stip. at 23-24.) When, as 1 for further proceedings. See Leon v. Berryhill, 874 F.3d 1130, 2 1132 (9th Cir. 2017); see also Harman v. Apfel, 211 F.3d 1172, 3 1175-78 (9th Cir. 2000) (as amended); Connett v. Barnhart, 340 4 F.3d 871, 876 (9th Cir. 2003) (“credit as true” doctrine is not 5 mandatory). 6 administrative proceedings, however, or when the record has been 7 fully developed, it is appropriate under the “credit as true” 8 rule to direct an immediate award of benefits. 9 F.3d at 1179 (noting that “the decision of whether to remand for When no useful purpose would be served by further See Harman, 211 10 further proceedings turns upon the likely utility of such 11 proceedings”); Garrison v. Colvin, 759 F.3d 995, 1019-20 (9th 12 Cir. 2014). 13 When the ALJ’s findings are so “insufficient” that the Court 14 cannot determine whether the rejected testimony should be 15 credited as true, the Court has “some flexibility” in applying 16 the credit-as-true rule. 17 Garrison, 759 F.3d at 1020 (noting that Connett established that 18 credit-as-true rule may not be dispositive in all cases). 19 flexibility should be exercised “when the record as a whole 20 creates serious doubt as to whether the claimant is, in fact, 21 disabled within the meaning of the Social Security Act.” 22 Garrison, 759 F.3d at 1021. 23 in treatment for Plaintiff’s right-elbow pain (see, e.g., AR 691 24 (stating that Plaintiff hadn’t seen anyone for treatment in one 25 year), 704 (same)) and inconsistent medical records concerning 26 the medication he took for his pain (compare AR 692 (listing 27 hydrocodone among current medications), and AR 702 (same), with 28 AR 705 (listing ibuprofen as only medication taken for his Connett, 340 F.3d at 876; see also This Such doubt exists here, given gaps 18 1 2 injury), and AR 710 (same)). Accordingly, further administrative proceedings would serve 3 the useful purpose of allowing the ALJ to reassess Plaintiff’s 4 statements’ credibility, and if he again finds them “not entirely 5 credible” (AR 43), provide a clear and convincing reason for that 6 finding. 7 Appeals Council and reevaluate Plaintiff’s RFC in light of that 8 evidence if he finds it relevant to the applicable time period. 9 The ALJ may further reevaluate his assessment of Drs. Lopez’s and He may also assess the new records submitted to the 10 Ghods’s opinions and provide a better reason for rejecting 11 them.14 12 1020 n.26. Thus, remand is appropriate. See Garrison, 759 F.3d at 13 14 15 14 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff argues — without presenting the issue under a separate heading — that the ALJ did not provide a clear and convincing reason for rejecting the opinions of Drs. Lopez and Ghods. (J. Stip. at 7-8.) As an initial matter, because Dr. Ghods was a chiropractor, the ALJ needed to provide only a “germane” reason for rejecting his opinion. See §§ 404.1513(d)(1), 416.913(d)(1) (chiropractors are “other sources”); Molina, 674 F.3d at 1111 (citation omitted) (testimony from “other sources” may be rejected if ALJ “gives reasons germane to each witness for doing so”). The ALJ “carefully assessed” opinions of physicians involved with Plaintiff’s workers’-compensation claim, giving “little weight” to “[m]edical source statements utilizing terms specific to workers’ compensation law” and to “opinions indicating temporary restrictions.” (AR 46.) Though nothing in the record indicates that Dr. Lopez assessed functional limitations, discounting medical opinions solely because they were given in the context of a workers’-compensation claim is error. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1196 n.5 (overturning rejection of doctor’s opinion that was furnished for workers’-compensation claim because “the purpose for which medical reports are obtained does not provide a legitimate basis for rejecting them” (quoting Lester, 81 F.3d at 832)). The ALJ may reevaluate his assessment of the opinions of Drs. Lopez and Ghods on remand. 19 1 2 VI. CONCLUSION Consistent with the foregoing and under sentence four of 42 3 U.S.C. § 405(g),15 IT IS ORDERED that judgment be entered 4 REVERSING the Commissioner’s decision, GRANTING Plaintiff’s 5 request for remand, and REMANDING this action for further 6 proceedings consistent with this memorandum decision. 7 8 DATED: January 23, 2018 9 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 20
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