Kathie Marie Bucknell v. Nancy A. Berryhill, No. 5:2018cv00261 - Document 20 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Commissioner is reversed, and the matter is remanded for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). (See Order for complete details) (afe)
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Kathie Marie Bucknell v. Nancy A. Berryhill Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 KATHIE MARIE BUCKNELL, Plaintiff, 12 13 14 15 CASE NO. ED CV 18-0261 AS MEMORANDUM OPINION v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, AND ORDER OF REMAND Defendant. 16 17 18 For the reasons discussed below, IT IS HEREBY ORDERED that, 19 pursuant to Sentence Four of 42 U.S.C. § 405(g), this matter is 20 remanded for further administrative action consistent with this 21 Opinion. 22 23 PROCEEDINGS 24 25 On February 2, 2018, Plaintiff filed a Complaint seeking 26 review of the denial of her application for Disability Insurance 27 Benefits. 28 before the undersigned United States Magistrate Judge. (Dkt. No. 1). The parties have consented to proceed (Dkt. Nos. Dockets.Justia.com 1 12-14). 2 the Administrative Record (“AR”). 3 filed a Joint Stipulation (“Joint Stip.”) on October 16, 2018, 4 setting forth their respective positions regarding Plaintiff’s 5 claim. On July 24, 2018, Defendant filed an Answer along with (Dkt. Nos. 16-17). The parties (Dkt. No. 18). 6 7 BACKGROUND AND SUMMARY OF ADMINISTRATIVE RECORD 8 9 On October 21, 2013, Plaintiff filed an application for 10 Disability Insurance Benefits (“DIB”) pursuant to Title II of the 11 Social Security Act alleging a disability onset date of August 1, 12 2013. 13 application initially and on reconsideration. 14 February 18, 2016, Plaintiff, represented by counsel, testified at 15 a hearing before Administrative Law Judge Alan J. Markiewicz (the 16 “ALJ”). 17 Boroskin, an impartial vocational expert (“VE”). 18 id. 214-18). (AR 71, 148). (AR 28-61). The Commissioner denied Plaintiff’s (AR 62-81). On The ALJ also heard testimony from Alan (AR 64-78; see 19 20 On July 13, 2016, the ALJ denied Plaintiff’s request for 21 benefits. 22 the ALJ found at step one that Plaintiff has not engaged in 23 substantial gainful activity since August 1, 2013, the alleged 24 onset date. 25 lumbar spine strain and chondromalacia of the bilateral knees are 26 severe impairments.1 (AR 18-24). (AR 20). Applying the five-step sequential process, At step two, the ALJ found that Plaintiff’s (AR 20). At step three, the ALJ determined 27 1 28 The ALJ found that Plaintiff’s diabetes, hypertension, chronic obstructive pulmonary disease, and sleep apnea have not 2 1 that Plaintiff does not have an impairment or combination of 2 impairments that meet or medically equal the severity of any of 3 the listings enumerated in the regulations. (AR 21). 4 5 The ALJ then assessed Plaintiff’s residual functional capacity 6 (“RFC”)2 and concluded that she can perform a range of sedentary 7 work, as defined in 20 C.F.R. § 404.1567(a),3 except: 8 9 [Plaintiff] can lift and/or carry up to 10 pounds 10 occasionally and less than 10 pounds frequently; can 11 stand and/or walk for a total of four hours, and sit for 12 a total of six hours, in an eight-hour workday with 13 normal breaks; cannot use ladders, ropes or scaffolds; 14 can 15 occasionally balance, stoop, kneel, crouch and crawl. occasionally climb ramps or stairs; and can 16 17 (AR 21). 18 performing past relevant work as a reservation specialist, as 19 generally At step four, the ALJ found that Plaintiff is capable of performed in the national economy and as actually 20 21 22 23 24 25 26 27 28 resulted in any consistent and significant functional impact during the period at issue and are therefore nonsevere. (AR 20). 2 A Residual Functional Capacity (“RFC”) is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R. § 404.1545(a)(1). 3 “Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.” 20 C.F.R. § 404.1567(a). 3 1 performed by Plaintiff. 2 Plaintiff was not under a disability as defined in the Social 3 Security Act from August 1, 2013, through the date of the decision. 4 (AR 23-24). (AR 23). Accordingly, the ALJ found that 5 6 The Appeals Council denied Plaintiff’s request for review on 7 December 22, 2017. (AR 4-9). 8 of the ALJ’s decision, which stands as the final decision of the 9 Commissioner. Plaintiff now seeks judicial review 42 U.S.C. §§ 405(g), 1383(c). 10 11 STANDARD OF REVIEW 12 13 This Court reviews the Commissioner’s decision to determine 14 if: (1) the Commissioner’s findings are supported by substantial 15 evidence; and (2) the Commissioner used proper legal standards. 16 U.S.C § 405(g); see Carmickle v. Comm’r, 533 F.3d 1155, 1159 (9th 17 Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). 18 “Substantial evidence is more than a scintilla, but less than a 19 preponderance.” 20 1998) (citing Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 21 1997)). 22 accept as adequate to support a conclusion.” 23 1074; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 24 determine whether substantial evidence supports a finding, “a court 25 must ‘consider the record as a whole, weighing both evidence that 26 supports and evidence that detracts from the [Commissioner’s] 27 conclusion.’ ” 28 2001) (citation omitted); see Widmark v. Barnhart, 454 F.3d 1063, 42 Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. It is relevant evidence “which a reasonable person might Hoopai, 499 F. 3d at To Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 4 1 1066 (9th Cir. 2006) (inferences “reasonably drawn from the record” 2 can constitute substantial evidence). 3 4 This Court “may not affirm [the Commissioner’s] decision 5 simply by isolating a specific quantum of support evidence, but 6 must also consider evidence that detracts from [the Commissioner’s] 7 conclusion.” 8 (citation and internal quotation marks omitted). 9 Court cannot disturb findings supported by substantial evidence, 10 even though there may exist other evidence supporting Plaintiff’s 11 claim. 12 “If 13 reversing 14 substitute its judgment for that of the [Commissioner].” 15 157 F.3d 715, 720-21 (9th Cir. 1998) (citation omitted). Ray v. Bowen, 813 F.2d 914, 915 (9th Cir. 1987) However, the See Torske v. Richardson, 484 F.2d 59, 60 (9th Cir. 1973). the evidence the can reasonably [Commissioner’s] support conclusion, either [a] affirming court may or not Reddick, 16 17 DISCUSSION 18 19 Plaintiff’s sole claim is that the ALJ erred in rejecting her 20 subjective symptom statements. 21 consideration of the parties’ arguments and the record as a whole, 22 the Court finds that Plaintiff’s claim of error warrants remand 23 for further consideration. (Joint Stip. at 4-7, 13-14). 24 25 26 27 28 5 After 1 A. The ALJ Failed To Provide Specific, Clear, and Convincing 2 Reasons 3 Testimony for Rejecting Plaintiff’s Subjective Symptom 4 5 Plaintiff asserts that in evaluating her subjective 6 statements, the ALJ failed to specifically identify the testimony 7 he found not to be credible and to clearly explain the evidence 8 that undermined Plaintiff’s testimony. (Joint Stip. at 5, 7, 13). 9 10 Plaintiff alleges disability from diabetes, COPD, sleep apnea, 11 upper extremity pain, and neuropathic lower extremity pain. 12 34). 13 is uncontrolled. 14 most of the time. 15 shooting pain in her feet due to diabetic neuropathy. 16 She testified that she has a hard time breathing and gets short of 17 breath. 18 wall, which she uses at home, and a CPAP machine that she uses at 19 night. 20 progressively worse. 21 for her pain, but it makes her sleepy. 22 effects from Norco, Plaintiff’s chronic pain, and her lack of sleep 23 due to her sleep apnea, Plaintiff testified that she takes two to 24 three naps a day totaling three to four hours. 25 The VE testified that an individual who would be off task for 20% 26 of a workday due to medicine side effects, fatigue, or an inability 27 to stay alert could not sustain fulltime work in the national 28 economy. (AR She testified that she is insulin dependent and her diabetes (AR 43). (AR 40-41, 189). (AR 187). She easily tires and feels weak Plaintiff has severe, throbbing, (AR 42-43). Plaintiff has a nebulizer that plugs into the (AR 43, 46). Plaintiff’s back pain has been getting (AR 43-44). (AR 57-58). 6 She has been prescribed Norco (AR 44). Due to the side (AR 44, 51, 52). 1 When assessing a claimant’s credibility regarding subjective 2 pain or intensity of symptoms, the ALJ must engage in a two-step 3 analysis. 4 First, the ALJ must determine if there is medical evidence of an 5 impairment that could reasonably produce the symptoms alleged. 6 Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). 7 analysis, the claimant is not required to show that her impairment 8 could reasonably be expected to cause the severity of the symptom 9 she has alleged; she need only show that it could reasonably have Trevizo v. Berryhill, 874 F.3d 664, 678 (9th Cir. 2017). “In this 10 caused some degree of the symptom.” 11 (citation omitted). “Nor must a claimant produce objective medical 12 evidence of the pain or fatigue itself, or the severity thereof.” 13 Id. (citation omitted). Id. (emphasis in original) 14 15 If the claimant satisfies this first step, and there is no 16 evidence of malingering, the ALJ must provide specific, clear and 17 convincing reasons for rejecting the claimant’s testimony about 18 the symptom severity. 19 see also Smolen, 80 F.3d at 1284 (“[T]he ALJ may reject the 20 claimant’s testimony regarding the severity of her symptoms only 21 if he makes specific findings stating clear and convincing reasons 22 for doing so.”); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 23 (9th Cir. 2006) (“[U]nless an ALJ makes a finding of malingering 24 based on affirmative evidence thereof, he or she may only find an 25 applicant 26 credibility and stating clear and convincing reasons for each.”). 27 “This is not an easy requirement to meet: The clear and convincing not Trevizo, 874 F.3d at 678 (citation omitted); credible by making 28 7 specific findings as to 1 standard is the most demanding required in Social Security cases.” 2 Garrison, 759 F.3d at 1015 (citation omitted). 3 4 5 In discrediting the claimant’s subjective symptom testimony, the ALJ may consider the following: 6 7 (1) ordinary techniques of credibility evaluation, such 8 as 9 inconsistent the claimant’s reputation statements for concerning the lying, prior symptoms, and 10 other testimony by the claimant that appears less than 11 candid; 12 failure to seek treatment or to follow a prescribed 13 course 14 activities. (2) of unexplained treatment; or and (3) inadequately the explained claimant’s daily 15 16 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation 17 omitted). 18 conduct, or internal contradictions in the claimant’s testimony, 19 also may be relevant. 20 Cir. 2014); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 21 1997). 22 treating and examining physicians regarding, among other matters, 23 the functional restrictions caused by the claimant’s symptoms. 24 Smolen, 80 F.3d at 1284; accord Burrell, 775 F.3d at 1137. However, 25 it is improper for an ALJ to reject subjective testimony based 26 “solely” on its inconsistencies with the objective medical evidence 27 presented. 28 (9th Cir. 2009) (citation omitted). Inconsistencies between a claimant’s testimony and Burrell v. Colvin, 775 F.3d 1133, 1137 (9th In addition, the ALJ may consider the observations of Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 8 1 Further, the ALJ must make a credibility determination with 2 findings that are “sufficiently specific to permit the court to 3 conclude that the ALJ did not arbitrarily discredit claimant’s 4 testimony.” 5 2008) (citation omitted); see Brown-Hunter v. Colvin, 806 F.3d 487, 6 493 (9th Cir. 2015) (“A finding that a claimant’s testimony is not 7 credible must be sufficiently specific to allow a reviewing court 8 to conclude the adjudicator rejected the claimant’s testimony on 9 permissible grounds and did not arbitrarily discredit a claimant’s Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 10 testimony regarding pain.”) (citation omitted). 11 interpretation of a claimant’s testimony may not be the only 12 reasonable one, if it is supported by substantial evidence, “it is 13 not [the court’s] role to second-guess it.” 14 261 F.3d 853, 857 (9th Cir. 2001). Although an ALJ’s Rollins v. Massanari, 15 16 The ALJ found that Plaintiff’s “medically determinable 17 impairments could reasonably be expected to cause the alleged 18 symptoms,” and the ALJ did not make a finding of malingering. 19 22). 20 symptom statements “are not entirely consistent with the medical 21 evidence and other evidence in the record.” (AR 22). After careful 22 consideration, the Court finds that the ALJ’s conclusions are 23 contrary to law and not supported by clear and convincing evidence. 24 See Garrison, 759 F.3d at 1015 (The clear and convincing standard (AR Nevertheless, the ALJ concluded that Plaintiff’s subjective 25 26 27 28 9 1 is “the most demanding required in Social Security cases” and “is 2 not an easy requirement to meet.”) (citation omitted).4 3 4 First, the ALJ’s decision is not “sufficiently specific to 5 permit the court to conclude that the ALJ did not arbitrarily 6 discredit claimant’s testimony.” 7 (citation omitted). 8 ALJ found credible and which he found not credible and why. 9 Brown-Hunter, 806 F.3d at 493 (“The ALJ . . . failed to identify 10 specifically which of Brown–Hunter’s statements she found not 11 credible and why.”); Knape v. Berryhill, 734 F. App’x 500, 501 (9th 12 Cir. 2018)(“The ALJ failed to identify the parts of Knape’s mental 13 health symptom testimony he found not credible and failed to 14 provide any links to the record.”); Fritz v. Berryhill, 685 F. 15 App’x 585, 586 (9th Cir. 2017) (“[T]he ALJ did not identify what 16 testimony was not credible and what evidence undermined Fritz’s 17 complaints.”). 18 in a single sentence: “[Plaintiff] alleges disabling limitations 19 due to her symptoms including difficulties with maneuvering and 20 exertion.” Tommasetti, 533 F.3d at 1039 It is not at all clear which testimony the See Instead, the ALJ summarized Plaintiff’s testimony (AR 22). The ALJ then went on to summarize the medical 21 4 22 23 24 25 26 27 28 The Commissioner accurately rejects Plaintiff’s contention that “[o]nce [Plaintiff] demonstrated the existence of a condition that would cause some degree of limitation of work function, the burden shifted to the Commissioner . . . to articulate specific reasons for rejecting the subjective limitations.” (Joint Stip. at 4; see id. 6, 8-9). Indeed, the claimant retains the burden of proof at steps one through four, and the Commissioner has the burden only at step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). Instead, if the claimant first provides medical evidence of an impairment that could reasonably produce the symptoms she alleges, the ALJ must then provide specific, clear, and convincing reasons for rejecting the claimant’s testimony regarding the symptom’s severity. Garrison, 759 F.3d at 1014-15; Trevizo, 874 F.3d at 678. 10 1 evidence supporting his RFC determination. 2 not the sort of explanation or the kind of ‘specific reasons’ [this 3 Court] 4 meaningfully, so that [the Court] may ensure that the claimant’s 5 testimony was not arbitrarily discredited.” Brown-Hunter, 806 F.3d 6 at 494. 7 that her pain medicine causes sleepiness, which interferes with 8 her ability to complete a normal workday, even though the ALJ found 9 Plaintiff’s lumbar spine strain severe and commented that her 10 “history of pain . . . [has] been treated with pain medication.” 11 (AR 21, 22); see Werlein v. Berryhill, 725 F. App’x 534, 535–36 12 (9th Cir. 2018) (“Critically here, the ALJ . . . never addressed 13 [the claimant’s] testimony that her thyroid medication causes 14 sleeplessness, which interferes with her ability to go to work, 15 even though [the ALJ] concluded that [the claimant’s] thyroid 16 problem is controlled by medication.”). must have in order to review (AR 22-23). the ALJ’s “This is decision Critically, the ALJ never addressed Plaintiff’s testimony 17 18 Second, the ALJ erroneously concluded that Plaintiff’s care 19 was conservative. 20 treatment 21 chronic conditions and temporary minor maladies.” 22 conservative 23 allegations of disabling symptoms. 24 481 F.3d 742, 750-51 (9th Cir. 2007) (treatment with over-the- 25 counter pain medication is “conservative treatment” sufficient to 26 discredit a claimant’s testimony regarding allegedly disabling 27 pain). 28 addition to the need for multiple daily insulin injections and the The ALJ found that Plaintiff’s [p]rimary care records . . . course of document treatment conservative may care discredit for [her] (AR 22). a A claimant’s See, e.g., Parra v. Astrue, Here, however, the medical evidence reflects that in 11 1 use 2 (hydrocodone) and Ativan (lorazepam). 3 324, 366). The consistent use of Norco, a strong opioid medication, 4 cannot accurately be described as “conservative” treatment. 5 Lapeirre-Gutt v. Astrue, 382 F. App’x 662, 664 (9th Cir. 2010) 6 (treatment consisting of “copious” amounts of narcotics, occipital 7 nerve blocks, and trigger point injections not conservative); Kager 8 v. Astrue, 256 F. App’x 919, 923 (9th Cir. 2007) (rejecting adverse 9 credibility determination premised on absence of significant pain 10 therapy where claimant took prescription pain medications including 11 Methocarbomal and the narcotic analgesics Roxicet and Valium); 12 Madrigal v. Berryhill, No. CV 17 0824, 2017 WL 5633028, at *6 (C.D. 13 Cal. 14 prescription pain medications, including the narcotic medication 15 Norco, has received spinal injections, and has been referred for a 16 lap band surgery consultation, treatment that is not necessarily 17 conservative.”); Mangat v. Colvin, No. 15 CV 2312, 2017 WL 1223881, 18 at *5 (S.D. Cal. Feb. 3, 2017) (finding that treatment of diabetes, 19 which progressed to insulin therapy, cannot be characterized as 20 conservative); 21 4629593, at *12 (N.D. Cal. Sept. 16, 2014) (“not obvious whether 22 the 23 ‘conservative’ ” treatment); Aguilar v. Colvin, No. CV 130 8307, 24 2014 WL 3557308, at *8 (C.D. Cal. July 18, 2014) (“It would be 25 difficult to fault Plaintiff for overly conservative treatment when 26 he has been prescribed strong narcotic pain medications.”); cf. 27 Osenbrock v. Apfel, 240 F.3d 1157, 1166 (9th Cir. 2001) (treatment 28 corroborating of a Nov. plug-in 21, nebulizer, 2017) (“[P]laintiff Childress consistent use Plaintiff of allegations v. Colvin, [Norco] of severe 12 was prescribed Norco (AR 47, 289, 297, 3065, 308, has been No. (for and 13 prescribed CV 3252, several strong 2014 years) unremitting See pain WL is may 1 include a strong Codeine or Morphine basic analgesic); Ascencio v. 2 Colvin, No. CV 14-0971, 2014 WL 5661882, at *5 (C.D. Cal. Nov. 4, 3 2014) (finding ALJ provided clear and convincing evidence for 4 discounting plaintiff’s subjective pain testimony, in part because 5 ALJ “found that healthcare providers treated [p]laintiff’s diabetes 6 with oral medication, not insulin”) (emphasis added). 7 the 8 significant side effects from her pain medications, including 9 drowsiness, as discussed above. ALJ failed to acknowledge that Plaintiff Further, experienced (AR 44, 51, 52). 10 11 Finally, the ALJ’s reliance on objective medical evidence is 12 insufficient 13 testimony. 14 alleged onset date are limited and do not reflect a disabling 15 degree of functional limitations.” (AR 22). While inconsistencies 16 with the objective medical evidence can be a factor that the ALJ 17 may consider when evaluating a claimant’s credibility, it cannot 18 be the sole ground for rejecting a claimant’s subjective testimony. 19 Bray, 554 F.3d at 1227; Burch v. Barnhart, 400 F.3d 676, 681 (9th 20 Cir. 2005); Rollins, 261 F.3d at 857. 21 noted by the ALJ was the supposed conservative treatment, which 22 was not supported by substantial evidence, as discussed above. 23 any event, the objective evidence cited by the ALJ does not dispute 24 all of Plaintiff’s subjective statements. 25 noted, the ALJ does not cite any evidence to dispute Plaintiff’s 26 testimony that due to the side effects from Norco, Plaintiff’s 27 chronic pain, and her lack of sleep due to her sleep apnea, she 28 takes two to three naps a day totaling three to four hours. to undermine Plaintiff’s subjective symptom The ALJ concluded that “[r]ecords dating after the 13 Here, the only other factor In For example, as already (AR 1 44, 51, 52). 2 subjective symptoms, an individual off task for 20% of a workday 3 cannot sustain fulltime employment. As noted above, unless the ALJ properly rejects these (AR 57-58). 4 5 In sum, the ALJ failed to provide clear and convincing evidence, for rejecting 6 reasons, 7 Plaintiff’s 8 further 9 Plaintiff’s symptoms in accordance with SSR 16-3p, taking into 10 supported by subjective proceedings. substantial symptoms. On The remand, matter the ALJ is remanded shall for reevaluate account the full range of medical evidence. 11 12 B. Remand Is Warranted 13 14 The decision whether to remand for further proceedings or 15 order an immediate award of benefits is within the district court’s 16 discretion. 17 2000). 18 administrative proceedings, or where the record has been fully 19 developed, it is appropriate to exercise this discretion to direct 20 an immediate award of benefits. 21 whether to remand for further proceedings turns upon the likely 22 utility of such proceedings.”). 23 circumstances of the case suggest that further administrative 24 review 25 appropriate. 26 Harman, 211 F.3d at 1179-81; see also Garrison, 759 F.3d at 1020 27 (cautioning that “the credit-as-true rule may not be dispositive 28 of the remand question in all cases”); cf. Treichler v. Comm’r of Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. Where could no useful remedy the purpose would be served by further Id. at 1179 (“[T]he decision of However, where, as here, the Commissioner’s errors, remand is McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); 14 1 Soc. Sec. Admin., 775 F.3d 1090, 1105 (9th Cir. 2014) (“[T]he 2 record raises crucial questions as to the extent of Treichler’s 3 impairment given inconsistencies between his testimony and the 4 medical evidence in the record. 5 issues 6 proceedings.”). that should be These are exactly the sort of remanded to the agency for further 7 8 9 Since the ALJ failed to properly evaluate subjective symptom testimony, remand is warranted. Plaintiff’s However, if 10 the ALJ properly determines which of Plaintiff’s statements he 11 found not credible and why, the record does not affirmatively 12 establish 13 appropriate. that Plaintiff is disabled. Remand is therefore 14 15 ORDER 16 17 For the foregoing reasons, the decision of the Commissioner 18 is reversed, and the matter is remanded for further proceedings 19 pursuant to Sentence 4 of 42 U.S.C. § 405(g). 20 21 LET JUDGMENT BE ENTERED ACCORDINGLY. 22 23 DATED: November 27, 2018 24 /S/ _________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 25 26 27 28 15
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