Janet C. Cruz v. Nancy A. Berryhill, No. 5:2017cv02259 - Document 20 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is granted; (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further proceedings consistent with this Memorandum Opinion. (See document for further details.) (sbou)
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Janet C. Cruz v. Nancy A. Berryhill Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 JANET C. CRUZ, 13 Plaintiff, 14 15 16 v. NANCY BERRYHILL, DEPUTY COMMISSIONER OF OPERATIONS FOR THE SOCIAL SECURITY ADMINISTRATION, 17 Defendant. 18 ) ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 17-2259-PLA MEMORANDUM OPINION AND ORDER 19 I. 20 PROCEEDINGS 21 Plaintiff filed this action on November 6, 2017, seeking review of the Commissioner’s1 22 denial of her application for Supplemental Security Income (“SSI”) payments. The parties filed 23 Consents to proceed before a Magistrate Judge on November 27, 2017, and December 7, 2017. 24 25 26 27 28 1 On March 6, 2018, the Government Accountability Office stated that as of November 17, 2017, Nancy Berryhill’s status as Acting Commissioner violated the Federal Vacancies Reform Act (5 U.S.C. § 3346(a)(1)), which limits the time a position can be filled by an acting official. As of that date, therefore, she was not authorized to continue serving using the title of Acting Commissioner. As of November 17, 2017, Berryhill has been leading the agency from her position of record, Deputy Commissioner of Operations. Dockets.Justia.com 1 Pursuant to the Court’s Order, the parties filed a Joint Submission (alternatively “JS”) on August 2 20, 2018, that addresses their positions concerning the disputed issue in the case. The Court has 3 taken the Joint Submission under submission without oral argument. 4 5 II. 6 BACKGROUND 7 8 Plaintiff was born on December 2, 1990. [Administrative Record (“AR”) at 52, 225.] She has no past relevant work experience. [AR at 53.] 9 On August 16, 2013, plaintiff protectively filed an application for SSI payments, alleging that 10 she has been unable to work since January 1, 1996. [AR at 225-31.] After her application was 11 denied initially and upon reconsideration, plaintiff timely filed a request for a hearing before an 12 Administrative Law Judge (“ALJ”). [AR at 159.] A hearing was held on January 11, 2016, at which 13 time plaintiff appeared without the assistance of an attorney or other representative, and testified 14 on her own behalf. [AR at 46, 60-119.] A vocational expert (“VE”) also testified. [AR at 109-16.] 15 On June 1, 2016, the ALJ issued a decision concluding that plaintiff was not under a disability 16 since August 16, 2013, the date the application was filed. [AR at 46-54.] Plaintiff requested 17 review of the ALJ’s decision by the Appeals Council. [AR at 218-24.] When the Appeals Council 18 denied plaintiff’s request for review on September 15, 2017 [AR at 1-6], the ALJ’s decision became 19 the final decision of the Commissioner. See Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (per 20 curiam) (citations omitted). This action followed. 21 22 III. 23 STANDARD OF REVIEW 24 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner’s 25 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 26 evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 27 F.3d 1228, 1231 (9th Cir. 2010) (citation omitted). 28 “Substantial evidence means more than a mere scintilla but less than a preponderance; it 2 1 is such relevant evidence as a reasonable mind might accept as adequate to support a 2 conclusion.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (citation omitted). “Where 3 evidence is susceptible to more than one rational interpretation, the ALJ’s decision should be 4 upheld.” Id. (internal quotation marks and citation omitted). However, the Court “must consider 5 the entire record as a whole, weighing both the evidence that supports and the evidence that 6 detracts from the Commissioner’s conclusion, and may not affirm simply by isolating a specific 7 quantum of supporting evidence.” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 8 2014) (internal quotation marks omitted)). The Court will “review only the reasons provided by the 9 ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not 10 rely.” Id. (internal quotation marks and citation omitted); see also SEC v. Chenery Corp., 318 U.S. 11 80, 87, 63 S. Ct. 454, 87 L. Ed. 626 (1943) (“The grounds upon which an administrative order 12 must be judged are those upon which the record discloses that its action was based.”). 13 14 IV. 15 THE EVALUATION OF DISABILITY 16 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable 17 to engage in any substantial gainful activity owing to a physical or mental impairment that is 18 expected to result in death or which has lasted or is expected to last for a continuous period of at 19 least twelve months. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014) (quoting 20 42 U.S.C. § 423(d)(1)(A)). 21 22 A. THE FIVE-STEP EVALUATION PROCESS 23 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 24 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lounsburry v. Barnhart, 468 25 F.3d 1111, 1114 (9th Cir. 2006) (citing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)). 26 In the first step, the Commissioner must determine whether the claimant is currently engaged in 27 substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Lounsburry, 28 468 F.3d at 1114. If the claimant is not currently engaged in substantial gainful activity, the 3 1 second step requires the Commissioner to determine whether the claimant has a “severe” 2 impairment or combination of impairments significantly limiting her ability to do basic work 3 activities; if not, a finding of nondisability is made and the claim is denied. Id. If the claimant has 4 a “severe” impairment or combination of impairments, the third step requires the Commissioner 5 to determine whether the impairment or combination of impairments meets or equals an 6 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart P, 7 appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the 8 claimant’s impairment or combination of impairments does not meet or equal an impairment in the 9 Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient 10 “residual functional capacity” to perform her past work; if so, the claimant is not disabled and the 11 claim is denied. Id. The claimant has the burden of proving that she is unable to perform past 12 relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the claimant meets 13 this burden, a prima facie case of disability is established. Id. The Commissioner then bears 14 the burden of establishing that the claimant is not disabled because there is other work existing 15 in “significant numbers” in the national or regional economy the claimant can do, either (1) by 16 the testimony of a VE, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. part 17 404, subpart P, appendix 2. Lounsburry, 468 F.3d at 1114. The determination of this issue 18 comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; 19 Lester v. Chater, 81 F.3d 721, 828 n.5 (9th Cir. 1995); Drouin, 966 F.2d at 1257. 20 21 B. THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS 22 At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since 23 August 16, 2013, the application date. [AR at 48.] At step two, the ALJ concluded that plaintiff 24 has the severe impairments of spina bifida and scoliosis of thoracic spine and lumbar spine status- 25 post fusion. [Id.] She found that plaintiff’s impairments of migraines and temporomandibular joint 26 disorder (“TMJ”) did not cause more than minimal limitation in plaintiff’s ability to perform basic 27 work activities and, therefore, were nonsevere. [Id.] She also found plaintiff’s alleged mental 28 impairments of anxiety and depression to be nonsevere. [Id.] At step three, the ALJ determined 4 1 that plaintiff does not have an impairment or a combination of impairments that meets or medically 2 equals any of the impairments in the Listing. [AR at 49.] The ALJ further found that plaintiff 3 retained the residual functional capacity (“RFC”)2 to perform light work as defined in 20 C.F.R. § 4 416.967(b),3 as follows: 5 7 [She] can lift and/or carry 20 pounds occasionally and 10 pounds frequently; [she] can sit six hours in an eight-hour workday; [she] can stand and/or walk four hours in an eight-hour workday; [she] can push and/or pull as much as [she] can lift and/or carry; [she] can occasionally climb ramps and stairs, but never climb ladders, ropes, or scaffolds; and [she] can occasionally balance, stoop, kneel, crouch, and crawl.[4] 8 [AR at 49-50.] At step four, based on plaintiff’s RFC and the testimony of the VE, the ALJ 9 concluded that plaintiff has no past relevant work. [AR at 52.] At step five, based on plaintiff’s 10 RFC, vocational factors, and the VE’s testimony, the ALJ found that there are jobs existing in 11 significant numbers in the national economy that plaintiff can perform, including work as a “small 12 products assembler I” (Dictionary of Occupational Titles (“DOT”) No. 706.684-022), as an 13 “electronics worker” (DOT No. 726.687-010), and as a “sewing machine operator” (DOT No. 6 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (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 claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007) (citation omitted). 3 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 20 C.F.R. § 416.967(b). 4 In her hypothetical to the VE, the ALJ did not include plaintiff’s RFC limitation to occasional balancing, stooping, kneeling, crouching, and crawling. [AR at 49, 112.] When posing hypotheticals to the VE on remand, the ALJ must include all of plaintiff’s functional limitations supported by substantial evidence in the record. Lubin v. Comm’r of Soc. Sec. Admin, 507 F. App’x 709, 712 (9th Cir. 2013) (“the ALJ must include all [RFC] restrictions in . . . the hypothetical question posed to the vocational expert”); Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012) (“If a vocational expert’s hypothetical does not reflect all the claimant’s limitations, then the expert’s testimony has no evidentiary value to support a finding that the claimant can perform jobs in the national economy.”) (citation and internal quotation marks omitted). 5 1 786.685-0305). [AR at 53-54.] Accordingly, the ALJ determined that plaintiff was not disabled at 2 any time since August 16, 2013, the date the application was filed. [AR at 54.] 3 4 V. 5 THE ALJ’S DECISION 6 Plaintiff contends that the ALJ erred when she rejected plaintiff’s subjective symptom 7 testimony. [JS at 4.] As set forth below, the Court agrees with plaintiff and remands for further 8 proceedings. 9 10 A. ANALYSIS 11 12 Plaintiff contends the ALJ failed to articulate legally sufficient reasons for rejecting plaintiff’s subjective symptom testimony. [JS at 4-13.] 13 The ALJ summarized plaintiff’s testimony as follows: 14 [She] testified she is unable to work due to her back problems from her spine being curved. She described having surgeries, one of which pinched a nerve causing her pain to worsen. She also indicated she needs another surgery on her spine because the rods in her back were removed causing her spine to be more curved. She said she is unable to walk correctly, she falls down, she cannot bend down at the waist to pick up something off the ground, and while she can put on her shirt, she needs help putting on her socks and underpants. She stated that while she could pick up her son when he was a baby, she can no longer pick up her 4-year-old son. She also described needing help bathing and dressing her son and cleaning the house, and said she mainly uses disposable dishes because she cannot stand at the sink without pain. 15 16 17 18 19 20 [AR at 50.] 21 The ALJ discounted plaintiff’s subjective symptom testimony as follows: 22 24 After careful consideration of the evidence, I find that [plaintiff’s] medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [plaintiff’s] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision. 25 .... 23 26 27 28 5 Although the VE testified (and the ALJ accepted) that the position of “Sewing Machine Operator, Semi-Automatic” is DOT number 786.685-031 [see AR at 54, 112], it appears that this position is actually DOT number 786.685-030. 6 1 4 . . . While the evidence supports the presence of spina bifida and scoliosis of thoracic spine and lumbar spine status-post fusion, the medical evidence does not support [plaintiff’s] allegations. Further, the objective medical evidence is inconsistent with the alleged severity of the functional limitations imposed by [her] impairments and suggests [her] symptoms and limitations were not as severe as [she] alleged. The positive objective clinical and diagnostic findings, detailed below, do not support more restrictive functional limitations than those assessed herein. 5 .... 6 . . . Despite her allegations at the hearing regarding her difficulty with standing, walking, and sitting, at another general physical examination, on March 18, 2014, she was noted to ambulate independently and be able to sit at a desk/computer. Further, at the visit, [plaintiff] acknowledged having been on gabapentin in the past, but she did not know the dose nor the pharmacy the medication was last filled, which suggests she was not always compliant with her medication treatment and suggests her symptoms may not have been limiting as alleged. . . . On July 27, 2015, she denied back pain, and she had . . . normal gait, station, and posture. On January 24, 2016, she denied the presence of back pain, joint swelling, numbness, tingling, and weakness. Accordingly, while the objective clinical findings prior to her application clearly support the presence of spina bifida and scoliosis, the generally normal physical examination findings, combined with the lack of evidence to correlate with [plaintiff’s] allegations regarding her symptoms, fails to support any greater limitations than adopted herein. 2 3 7 8 9 10 11 12 13 .... 14 . . . [T]he physical examinations showed generally normal findings that were not consistent with [plaintiff’s] allegations. I generously considered [her] subjective complaints in adopting the additional postural, standing, and sitting limitations identified herein. 15 16 17 . . . In sum, the above [RFC] assessment is supported by the evidence as a whole. The evidence reveals [plaintiff] has a longstanding history of back problems with multiple surgeries, but since the application date her treatment has been sporadic and inconsistent, and the statements to her physicians have not been consistent with the severity she alleged at the hearing. In addition, although she alleged side effects of dizziness at the hearing, there is no evidence of these complaints in the treatment records. Accordingly, I find [plaintiff] has not been deprived of the ability to perform work subject to the residual functional capacity assessed by this decision for any 12-month period since the application date. 18 19 20 21 22 [AR at 50-52 (citations omitted).] 23 On March 28, 2016, prior to the ALJ’s assessment in this case, Social Security Ruling 24 (“SSR”)6 16-3p went into effect. See SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016). SSR 16-3p 25 26 27 28 6 “The Commissioner issues [SSRs] to clarify the Act’s implementing regulations and the agency’s policies. SSRs are binding on all components of the [Social Security Administration]. 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 (continued...) 7 1 supersedes SSR 96-7p, the previous policy governing the evaluation of subjective symptoms. Id. 2 at *1. SSR 16-3p indicates that “we are eliminating the use of the term ‘credibility’ from our 3 sub-regulatory policy, as our regulations do not use this term.” Id. Moreover, “[i]n doing so, we 4 clarify that subjective symptom evaluation is not an examination of an individual’s character[;] 5 [i]nstead, we will more closely follow our regulatory language regarding symptom evaluation.” Id.; 6 Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017). Thus, the adjudicator “will not assess 7 an individual’s overall character or truthfulness in the manner typically used during an adversarial 8 court litigation. The focus of the evaluation of an individual’s symptoms should not be to determine 9 whether he or she is a truthful person.” SSR 16-3p, 2016 WL 1119029, at *10. The ALJ is 10 instructed to “consider all of the evidence in an individual’s record,” “to determine how symptoms 11 limit ability to perform work-related activities.” Id. at *2. The Ninth Circuit also noted that SSR 16- 12 3p “makes clear what our precedent already required: that assessments of an individual’s 13 testimony by an ALJ are designed to ‘evaluate the intensity and persistence of symptoms after [the 14 ALJ] find[s] that the individual has a medically determinable impairment(s) that could reasonably 15 be expect to produce those symptoms,’ and ‘not to delve into wide-ranging scrutiny of the 16 claimant’s character and apparent truthfulness.’” Trevizo, 871 F.3d at 678 n.5 (citing SSR 16-3p). 17 To determine the extent to which a claimant’s symptom testimony must be credited, the 18 Ninth Circuit has “established a two-step analysis.” Trevizo, 871 F.3d at 678 (citing Garrison, 759 19 F.3d at 1014-15). “First, the ALJ must determine whether the claimant has presented objective 20 medical evidence of an underlying impairment which could reasonably be expected to produce the 21 pain or other symptoms alleged.” Id. (quoting Garrison, 759 F.3d at 1014-15); Treichler v. Comm’r 22 of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 23 1028, 1036 (9th Cir. 2007)) (internal quotation marks omitted). If the claimant meets the first test, 24 and the ALJ does not make a “finding of malingering based on affirmative evidence thereof” 25 (Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)), the ALJ must “evaluate the 26 27 28 6 (...continued) SSRs if they are inconsistent with the statute or regulations.” Holohan v. Massanari, 246 F.3d 1195, 1202 n.1 (9th Cir. 2001) (citations omitted). 8 1 intensity and persistence of [the] individual’s symptoms . . . and determine the extent to which 2 [those] symptoms limit [her] . . . ability to perform work-related activities . . . .” SSR 16-3p, 2016 3 WL 1119029, at *4. An ALJ must provide specific, clear and convincing reasons for rejecting a 4 claimant’s testimony about the severity of her symptoms. Trevizo, 871 F.3d at 678 (citing 5 Garrison, 759 F.3d at 1014-15); Treichler, 775 F.3d at 1102. 6 Where, as here, plaintiff has presented evidence of an underlying impairment, and the ALJ 7 did not make a finding of malingering [see generally AR at 50-52], the ALJ’s reasons for rejecting 8 a claimant’s credibility must be specific, clear and convincing. Brown-Hunter v. Colvin, 806 F.3d 9 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014) (citing Molina 10 v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)). “General findings [regarding a claimant’s 11 credibility] are insufficient; rather, the ALJ must identify what testimony is not credible and what 12 evidence undermines the claimant’s complaints.” Burrell, 775 F.3d at 1138 (quoting Lester, 81 13 F.3d at 834) (quotation marks omitted). The ALJ’s findings “‘must be sufficiently specific to allow 14 a reviewing court to conclude the adjudicator rejected the claimant’s testimony on permissible 15 grounds and did not arbitrarily discredit a claimant’s testimony regarding pain.’” Brown-Hunter, 16 806 F.3d at 493 (quoting Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en banc)). A 17 “reviewing court should not be forced to speculate as to the grounds for an adjudicator’s rejection 18 of a claimant’s allegations of disabling pain.” Bunnell, 947 F.2d at 346. As such, an “implicit” 19 finding that a plaintiff’s testimony is not credible is insufficient. Albalos v. Sullivan, 907 F.2d 871, 20 874 (9th Cir. 1990) (per curiam). 21 Here, in discounting plaintiff’s testimony, the ALJ found the following: (1) plaintiff’s 22 subjective complaints were not supported by the objective evidence; and (2) plaintiff’s subjective 23 complaints were not supported by “other evidence in the record.” [AR at 50.] 24 25 1. 26 The ALJ found that plaintiff’s “statements concerning the intensity, persistence and limiting 27 28 Objective Evidence effects of [her] symptoms” were “not entirely consistent with the medical record.” [Id.] First, after summarizing plaintiff’s extensive surgical history from 1997 through 2008, the 9 1 ALJ stated that after plaintiff had spinal hardware removed on March 18, 2008, “she still had 2 complaints of pain and exhibited severe scoliosis through 2010, [but] as of October 20, 2010, her 3 general physical examination was within normal limits, and the frequency of her visits for back- 4 related complaints lessened.” [AR at 51 (citing AR at 918, 1136).] However, despite the ALJ’s 5 suggestion that plaintiff’s October 20, 2010, physical examination was “normal,” plaintiff appeared 6 at that visit complaining of left foot pain, rib and back pain, stomach pain, chest pain, and 7 dizziness, and told the examiner that for two months she had been experiencing pain in her back 8 and numbness on the bottom of all of her toes. [AR at 1134, 1135, 1136.] The examiner noted 9 that plaintiff had a history of weakness in her left leg that had been progressing, and although 10 plaintiff’s “general” physical examination was described as “normal,” and also reflected “NAD,” i.e., 11 she was in “no acute distress,” the examination reflected abnormal findings with respect to 12 tenderness on her left flank, severe scoliosis, and decreased strength with extension and flexion 13 of her “great toe” on both feet. [AR at 1136.] The treating examiner assessed plaintiff with back 14 pain, spina bifida, and “nerve compression L [left] leg,” and ordered an x-ray of plaintiff’s left ribs. 15 [AR at 1136, 1139.] The x-ray report showed that there was “redemonstration of severe S-shaped 16 scoliotic deformity of the thoracolumbar spine, with extensive associated rib deformities,” and a 17 “[f]ocal deformity of the left fourth and fifth ribs [that] may be congenital, postsurgical or 18 posttraumatic in nature.” [AR at 1139.] Accordingly, the ALJ’s suggestion that plaintiff’s “general” 19 physical examination as of October 20, 2010, demonstrated that she was “within normal limits,” 20 without mentioning the specific results that were not “normal,” was not a specific, clear and 21 convincing reason supported by substantial evidence for discounting plaintiff’s subjective symptom 22 testimony. 23 Second, the ALJ stated that on January 15, 2013, plaintiff described “continued pain and 24 . . . exhibited tenderness to palpation with decreased range of motion, but she was in no acute 25 distress, she denied muscle weakness, and she denied gait abnormality.” [AR at 51 (citing AR at 26 1235-36) (emphasis added).] The ALJ failed to mention that plaintiff went to that January 2013 27 visit complaining of “pain in left foot and also lower back pain, [which she stated] is constant and 28 . . . radiat[i]ng to left leg and foot.” [AR at 1235.] Instead, the ALJ attempted to portray the 10 1 provider’s statement that plaintiff generally was in “no acute distress,” and plaintiff’s own “denial” 2 of muscle weakness and gait abnormality at that 2013 visit, as inconsistent with plaintiff’s 3 testimony three years later regarding her symptoms and limitations. Indeed, although the 4 treatment record indicates that plaintiff was in “no acute distress” at that visit, this does not mean 5 that she presented with no significant back pain due to her chronic conditions; it simply means that 6 she presented with “no acute distress”7 and back pain. Thus, although plaintiff testified on 7 January 11, 2016, that she “can’t walk right” and has to be very careful or she falls down [AR at 8 84], the fact that she denied “gait abnormality” at a visit to her doctor three years earlier, or that 9 her treating providers found that she was not in “acute distress” at some of her visits, is not 10 substantial evidence sufficient to support the ALJ’s decision to reject plaintiff’s subjective symptom 11 testimony regarding her limitations and pain. 12 Third, the ALJ stated that “despite [plaintiff’s] allegations at the hearing regarding her 13 difficulty with standing, walking, and sitting, at another general physical examination, on March 18, 14 2014, she was noted to ambulate independently and be able to sit at a desk/computer.” [AR at 15 51 (citing AR at 1255).] The ALJ’s conclusion does not follow from her premise -- plaintiff did not 16 testify at the hearing that she is unable to “ambulate independently” or that she is unable to “sit 17 at a desk/computer.” Further, there is no indication in the March 18, 2014, treatment record (or 18 any other treatment record) detailing how long plaintiff can either “ambulate independently,” or “sit 19 at a desk/computer.” [AR at 1255.] Accordingly, the ALJ’s suggestion that plaintiff’s testimony 20 was somehow inconsistent with this treatment note is not supported by substantial evidence. 21 Fourth, the ALJ stated that a July 27, 2015, treatment record reflecting that plaintiff denied 22 back pain and had “normal gait, station, and posture,” “failed to support [plaintiff’s] allegations 23 regarding the severity of her symptoms.” [AR at 51 (citing AR at 1279-80).] However, a review 24 7 25 26 27 28 “[I]n a medical context ‘acute’ means ‘having a rapid onset, severe symptoms, and a short course; not chronic.’” See Ekola v. Colvin, 2014 WL 4425783, at *6 (D. Ariz. Sept. 9, 2014) (quoting Taber’s Cyclopedic Medical Dictionary A-32 (13th ed. 1977)). Thus, when a patient is described as being in “no acute distress” (a term that appears frequently in the medical records reviewed by this Court), this appears to be an indication of whether the patient has had a rapid onset of severe symptoms that constitute an emergency, and otherwise “is somewhat meaningless” with respect to describing a patient’s chronic condition(s). Id. 11 1 of the July 27, 2015, treatment record also shows that plaintiff -- who presented at the Urgent Care 2 that day complaining only of a skin rash -- was nevertheless also assessed with “abnormal” upper 3 extremity strength and tone and “abnormal” lower extremity strength and tone.8 [AR at 1280.] 4 This record does not constitute substantial evidence sufficient to refute plaintiff’s testimony 5 regarding her symptoms and limitations. 6 Finally, the ALJ noted that on January 24, 2016, plaintiff “denied the presence of back pain, 7 joint swelling, numbness, tingling, and weakness,” again failing to support plaintiff’s testimony 8 regarding the alleged severity of her symptoms. [Id. (citing AR at 1283).] However, a review of 9 the January 24, 2016, treatment record reflects that plaintiff presented at the Urgent Care 10 complaining of a sore throat for about a week. [AR at 1283.] That record also reflects that plaintiff 11 was not otherwise examined for anything beyond her complaint of a lingering sore throat. [AR at 12 1283-85.] This record does not constitute substantial evidence sufficient to refute plaintiff’s 13 subjective symptom testimony. 14 Based on the foregoing, the ALJ’s conclusion that the objective clinical findings and “normal 15 physical examination findings, combined with the lack of evidence to correlate with [plaintiff’s] 16 allegations regarding her symptoms,” fails to support any greater limitations than those assessed 17 in the RFC, was not a specific, clear and convincing reason supported by substantial evidence for 18 discounting plaintiff’s subjective symptom testimony. And, even assuming this was a specific, 19 clear and convincing reason for discounting plaintiff's testimony, the ALJ’s determination to 20 discount plaintiff’s subjective symptom testimony for this reason rises or falls with the ALJ’s other 21 grounds for discrediting plaintiff. See Trevizo, 871 F.3d at 679 (an ALJ “may not disregard a 22 [claimant’s testimony] solely because it is not substantiated affirmatively by objective medical 23 evidence”) (quoting Robbins, 466 F.3d at 883) (internal quotation marks omitted). As seen below, 24 the ALJ’s other ground for discounting plaintiff’s subjective symptom testimony is insufficient as 25 well. 26 27 28 8 Although the note does not specify whether plaintiff’s upper and lower extremity strength and tone was abnormally high or abnormally low, from context it would appear to refer to abnormally low strength and tone. 12 1 2. 2 The ALJ also discounted plaintiff’s allegations because her alleged symptoms were “not 3 “Other Evidence” entirely consistent with . . . other evidence in the record.”9 [AR at 50.] 4 The ALJ considered that the opinions of the consultative internal medicine examiner, to 5 whom she gave “great weight,” were inconsistent with plaintiff’s testimony at the hearing, and 6 “generally consistent with the objective clinical findings.” [AR at 52.] However, this was largely 7 because the ALJ believed -- as discussed above -- that plaintiff’s “physical examinations showed 8 generally normal findings that were not consistent with [plaintiff’s] allegations.” [Id.] As discussed 9 above, this finding was not supported by substantial evidence. Thus, to the extent that the ALJ 10 considered the report of the consultative internal medicine examiner to be “other evidence in the 11 record” that was inconsistent with plaintiff’s testimony, this was not a specific, clear and convincing 12 reason supported by substantial evidence to discount plaintiff’s subjective symptom testimony. 13 The ALJ also stated that plaintiff acknowledged at an office visit that she had been on 14 gabapentin “but she did not know the dose nor the pharmacy the medication was last filled.” [AR 15 at 51.] The ALJ then stated that this “suggests [plaintiff] was not always compliant with her 16 medication treatment and suggests her symptoms may not have been limiting as alleged.” [AR 17 at 51 (citing AR at 1255).] The ALJ, however, points to no evidence in the record suggesting that 18 plaintiff “was not always compliant with her medication treatment”; neither does she explain why 19 not remembering dosage on a medication or where it was filled is suggestive of an individual’s 20 symptoms not being as limiting as alleged. Indeed, this unfounded leap in logic does not 21 constitute a specific, clear and convincing reason supported by substantial evidence sufficient to 22 discount plaintiff’s subjective symptom statements. 23 The ALJ also suggests that although plaintiff complained at the hearing that her 24 25 26 27 28 9 Plaintiff appears to contend that the ALJ rejected her testimony on the basis that her care had been conservative in nature. [JS at 10 (citing AR at 52).] However, the Court does not find that the ALJ suggested this reason and, therefore, declines to discuss it herein. Additionally, to the extent defendant’s response covers the same ground as discussed by the Court with respect to the objective evidence [see JS at 16-18], the Court will not consider or discuss those reasons again. 13 1 medications make her dizzy, “there is no evidence of these complaints in the treatment records.” 2 [AR at 52.] However, as discussed above, there is at least one record showing that plaintiff 3 complained of being dizzy. [See AR at 1134.] Accordingly, this was not a specific, clear and 4 convincing reason supported by substantial evidence to discount plaintiff’s subjective symptom 5 statements. 6 Finally, the ALJ states that since August 16, 2013, plaintiff’s application date, “her treatment 7 has been sporadic and inconsistent.” [AR at 52.] Plaintiff testified, however, that in the three 8 years prior to the January 2016 hearing, she had moved to Barstow for a while and used Choice 9 Medical Group for treatment, although she had been told that the doctors in that area were not 10 good, so she “didn’t continue treatment . . . there.” [AR at 72.] The records reflect that between 11 October 26, 2012, and July 25, 2013, plaintiff visited Choice Medical Group in Barstow several 12 times, and that while treating there, she had x-rays taken of her left foot [AR at 1230], thoracic 13 spine, and lumbar spine. [AR at 1230-39.] She also testified that she had moved back to Rialto 14 and was able to continue her treatment with Loma Linda University (where she had been treating 15 prior to her move to Barstow), as well as with other clinics in that area. [AR at 75, 76.] Plaintiff 16 also noted that she had some trouble obtaining referrals for orthopedic and pain management and 17 that her insurance was not accepted at one of those referrals and she had to look for someone 18 else to treat with. [AR at 79.] In short, plaintiff provided a reasonable explanation for any alleged 19 gap in treatment and, therefore, this was not a specific, clear and convincing reason supported 20 by substantial evidence to discount plaintiff’s subjective symptom statements. 21 22 B. CONCLUSION 23 Based on the foregoing, the ALJ’s subjective symptom testimony determination was not 24 “sufficiently specific” to allow this Court to conclude that the ALJ rejected plaintiff’s testimony on 25 permissible grounds and did not arbitrarily discredit her testimony regarding pain and fatigue. 26 Brown-Hunter, 806 F.3d at 493 (quoting Bunnell, 947 F.2d at 345-46). Remand is warranted on 27 this issue. 28 14 1 VI. 2 REMAND FOR FURTHER PROCEEDINGS 3 The Court has discretion to remand or reverse and award benefits. Trevizo, 871 F.3d at 4 682 (citation omitted). Where no useful purpose would be served by further proceedings, or where 5 the record has been fully developed, it is appropriate to exercise this discretion to direct an 6 immediate award of benefits. Id. (citing Garrison, 759 F.3d at 1019). Where there are outstanding 7 issues that must be resolved before a determination can be made, and it is not clear from the 8 record that the ALJ would be required to find plaintiff disabled if all the evidence were properly 9 evaluated, remand is appropriate. See Garrison, 759 F.3d at 1021. 10 In this case, there are outstanding issues that must be resolved before a final determination 11 can be made. In an effort to expedite these proceedings and to avoid any confusion or 12 misunderstanding as to what the Court intends, the Court will set forth the scope of the remand 13 proceedings. Because the ALJ failed to provide specific, clear and convincing reasons, supported 14 by substantial evidence in the case record for discounting plaintiff’s subjective symptom testimony, 15 the ALJ on remand, in accordance with SSR 16-3p, shall reassess plaintiff’s subjective allegations 16 and either credit her testimony as true, or provide specific, clear and convincing reasons, 17 supported by substantial evidence in the case record, for discounting or rejecting any testimony. 18 The ALJ shall then reassess plaintiff’s RFC and determine, at step five, with the assistance of a 19 VE if necessary, whether there are jobs existing in significant numbers in the national economy 20 that plaintiff can still perform. 21 22 VII. 23 CONCLUSION 24 IT IS HEREBY ORDERED that: (1) plaintiff’s request for remand is granted; (2) the 25 decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further 26 proceedings consistent with this Memorandum Opinion. 27 28 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 15 1 2 This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. 3 4 DATED: September 24, 2018 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16
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