Ralph M. Orosco v. Nancy A. Berryhill, No. 5:2018cv00669 - Document 27 (C.D. Cal. 2019)
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 document for complete details) (afe)
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Ralph M. Orosco v. Nancy A. Berryhill Doc. 27 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RALPH M. OROSCO, Plaintiff, 12 MEMORANDUM OPINION AND v. 13 14 Case No. EDCV 18-00669-AS ANDREW M. SAUL, Commissioner of Social Security,1 ORDER OF REMAND 15 Defendant. 16 17 Pursuant to Sentence Four of 42 U.S.C. § 405(g), IT IS HEREBY 18 ORDERED that this matter be remanded for further administrative 19 action consistent with this Opinion. 20 21 I. PROCEEDINGS 22 23 On April 2, 2018, Ralph M. Orosco (“Plaintiff”), represented 24 by counsel, filed a Complaint seeking review of the denial of his 25 26 1 27 28 Andrew M. Saul is now the Commissioner of the Social Security Administration and is substituted for Acting Commissioner Nancy A. Berryhill in this case. See Fed. R. Civ. P. 25(d). Dockets.Justia.com 1 application for supplemental social security benefits. 2 1). 3 United States Magistrate Judge. 4 27, 2018, Defendant filed an Answer along with the Administrative 5 Record (“AR”). 6 parties filed a Joint Submission (“Joint Stip.”), setting forth 7 their respective positions regarding Plaintiff’s sole claim. (Dkt. 8 No. 26). (Dkt. No. The parties have consented to proceed before the undersigned (Dkt. Nos. 11, 12). (Dkt. Nos. 15-16). On August On February 26, 2019, the 9 10 II. BACKGROUND AND SUMMARY OF THE ADMINISTRATIVE RECORD 11 12 On March 21, 2014, Plaintiff, formerly employed as a landscape 13 laborer (see AR 51), filed an application for Supplemental Security 14 Income (“SSI”), pursuant to Titles II and XVI of the Social Security 15 Act. 16 application initially and on reconsideration. 17 On October 28, 2016, Administrative Law Judge Norman L. Bennett, 18 (“ALJ”), held a hearing at which Plaintiff, represented by counsel, 19 and Bernard Preston, a vocational expert, testified. 20 66). (See AR 185-190). The Commissioner denied Plaintiff’s (See AR 111-124). (See AR 45- 21 22 On 23 application. 24 process, the ALJ found at step one that Plaintiff had not engaged 25 in 26 application filing date. 27 that Plaintiff’s degenerative disc disease of the lumbar spine, 28 degenerative December 7, 2016, the (See AR 23-44). substantial gainful joint ALJ Plaintiff’s SSI Applying the five-step sequential activity since (See AR 29). disease denied of the 2 March 21, 2014, the At step two, the ALJ found right knee, hepatitis C, 1 hypertension, history of stroke with residual right arm and leg 2 weakness, and bipolar disorder were severe impairments. 3 29-30).2 4 have an impairment or combination of impairments that met or 5 medically equaled the severity of any of the Listings enumerated 6 in the regulations. (See AR At step three, the ALJ determined that Plaintiff did not (See AR 30-32). 3 7 8 The ALJ then assessed Plaintiff’s residual functional capacity 9 (“RFC”)4 (see AR 32-38) and concluded that he can perform light 10 work, as defined in 20 C.F.R. §§ 416.967(b),5 with the following 11 12 2 The ALJ found Plaintiff’s other impairments, specifically, emphysema, hearing loss in his left ear, neck pain, and polysubstance dependence, were non-severe. (See AR 30). 13 3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The ALJ considered whether Plaintiff’s medically determinable physical impairments, singly and in combination, met or medically equaled the requirements of Listings 1.02 (major dysfunction of a joint(s)), 1.04 (disorders of the spine), 5.05 (hepatic encephalopathy), and 11.04 (vascular insult to the brain). (See AR 31). The ALJ also considered whether Plaintiff’s medically determinable mental impairment met or medically equaled the requirements of Listing 12.04 (depressive, bipolar and related disorders). (See AR 31). 4 The RFC is what a claimant can still do despite existing exertional and non-exertional limitations. See 20 C.F.R. § 416.945(a)(1). 5 “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 3 1 limitations: lifting and carrying 20 pounds occasionally and 10 2 pounds frequently; standing and/or walking up to six hours out of 3 an eight-hour day; sitting up to six hours out of an eight-hour 4 day; 5 simple, repetitive tasks; and occasional contact with supervisors, 6 coworkers, and the general public. 7 the ALJ found that Plaintiff was unable to perform any past relevant 8 work. 9 Plaintiff’s RFC, age, education, and work experience that Plaintiff frequent postural (See AR 38). activities except occasional (See AR 32). kneeling; At step four, At step five, the ALJ determined, based on 10 could 11 national economy, including cleaner, garment sorter, and inspector. 12 (See AR 38-39). 13 under a disability as defined by the Social Security Act since 14 March 21, 2014, the SSI application filing date. perform jobs that exist in significant numbers in the Accordingly, the ALJ found that Plaintiff was not (See AR 39). 15 16 The Appeals Council denied Plaintiff’s request for review on 17 January 18, 2018. 18 review of the ALJ’s decision, which stands as the final decision 19 of the Commissioner. (See AR 1–6). Plaintiff now seeks judicial 42 U.S.C. §§ 405(g), 1383(c). 20 21 III. STANDARD OF REVIEW 22 23 This Court reviews the Commissioner’s decision to determine 24 if: (1) the Commissioner’s findings are supported by substantial 25 26 dexterity or inability to sit for long periods of time.” 20 C.F.R. § 416.967(b). 27 28 4 1 evidence; and (2) the Commissioner used proper legal standards. 2 U.S.C § 405(g); see Carmickle v. Comm’r, 533 F.3d 1155, 1159 (9th 3 Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). 4 “Substantial evidence is more than a scintilla, but less than a 5 preponderance.” 6 1998)(citing Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 7 1997)). 8 accept as adequate to support a conclusion.” 9 v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). To determine whether 10 substantial evidence supports a finding, “a court must consider 11 the record as a whole, weighing both evidence that supports and 12 evidence 13 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001)(citation 14 omitted); see Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 15 2006)(inferences “reasonably drawn from the record” can constitute 16 substantial evidence). 42 Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. It is relevant evidence “which a reasonable person might that detracts from the Hoopai, supra; Smolen [Commissioner’s] conclusion.” 17 18 This Court “may not affirm [the Commissioner’s] decision 19 simply by isolating a specific quantum of support evidence, but 20 must also consider evidence that detracts from [the Commissioner’s] 21 conclusion.” 22 1987)(citation and internal quotation marks omitted). 23 the 24 evidence, even though there may exist other evidence supporting 25 Plaintiff’s claim. See Torske v. Richardson, 484 F.2d 59, 60 (9th 26 Cir. the 27 affirming or reversing the [Commissioner’s] conclusion, [a] court Court 1973). Ray cannot “If v. Bowen, disturb 813 findings evidence 28 5 can F.2d 914, supported reasonably 915 by (9th Cir. However, substantial support either 1 may not substitute its judgment for that of the [Commissioner].” 2 Reddick, 157 F.3d at 720-21 (citation omitted). 3 4 IV. DISCUSSION 5 6 Plaintiff’s contends that the ALJ failed to provide specific, 7 clear, and convincing reasons for discrediting his testimony. (See 8 Joint Stip. at 4-13). 9 specific, 10 clear, Respondent contends that the ALJ did provide and Plaintiff’s testimony. convincing reasons for discrediting (See Joint. Stip. at 13-17). 11 12 After consideration of the parties’ arguments and the record 13 as a whole, the Court finds that Plaintiff’s claim of error warrants 14 remand for further consideration. 15 16 A. The ALJ Failed to Properly Assess Plaintiff’s Testimony. 17 18 1. Plaintiff’s Testimony 19 20 In a Function Report dated April 24, 2014 (completed by the 21 girlfriend of Plaintiff, who is illiterate [see AR 55]), Plaintiff 22 detailed 23 Plaintiff lived in a home with his family, where his sister 24 primarily took care of him. 25 Plaintiff attempted to “do labor work” prior to the onset of his 26 symptoms, but he “was not able to keep a job.” his abilities and limitations. (AR 211). 27 28 6 (See AR 211-17). With respect to employment, (AR 212). 1 Plaintiff had difficulty sleeping, which was affected by his 2 anxiety and insomnia. 3 and helped prepare meals for him, as Plaintiff did not know how to 4 cook. (See AR 211, 213). His sister additionally performed various 5 household chores and gave his medications to him. 6 Plaintiff’s inability to aid in these activities was the result of 7 his back pain and a recent stroke. 8 aid 9 appointments. in ironing, (AR 212). laundry, (AR 213). His sister fed him in the morning (AR 214). cleaning, and (AR 213). Plaintiff needed going to doctor’s Plaintiff needed someone to accompany 10 him when he did leave the house and had difficulties with social 11 activities because he spent “most of his life . . . in prison,”. 12 (215-16). 13 to only be around his mother and sister. 14 only able to go out “about every three days,” but also did not 15 “come home for days” at a time. 16 the house, he rode in a car; he did not know how to drive. 17 214). 18 on shoes, but needed help changing clothes, taking a bath, and 19 reminders to brush his teeth. 20 television approximately one hour a day. 21 budgeting and finance-related issues, Plaintiff was unable to pay 22 bills, count change, handle a savings account, and use a checkbook 23 and money orders. Plaintiff did not like being around others and preferred (AR 216). (AR 214). Plaintiff was When Plaintiff left (AR Plaintiff had the ability to shave, feed himself, and put (AR 212-13). Plaintiff watched (AR 215). As for (AR 214). 24 25 Plaintiff had difficulty lifting, walking, stair-climbing, 26 understanding, 27 kneeling, using hands, standing, talking, completing tasks, getting 28 along with others, reaching, hearing, lifting ten pounds at a time, squatting, sitting, 7 following instructions, 1 and had issues with memory and concentration. 2 could only walk around the house since the stroke affected his 3 ability to walk; he could go from the bedroom to the bathroom, and 4 needed to rest five minutes before resuming walking. 5 Plaintiff had difficulty following written or spoken instructions, 6 and could pay attention for ten minutes. 7 difficulty getting along with authority figures, but he had never 8 been fired because of an inability to get along with others. 9 217). (AR 216). (AR 216). Plaintiff (AR 216). Plaintiff had (AR Plaintiff did not handle changes in routine or stress well. 10 (AR 11 sometimes,” and a “wheelchair right now ever since [he] had a 12 stroke.” 217). Plaintiff used “glasses all the time,” a “cane (AR 217). 13 14 At the hearing on October 28, 2016, Plaintiff testified to 15 his symptoms and limitations. 16 years-old, five-foot seven-inches tall, weighing 167 pounds and 17 has a seventh-grade education. 18 used any drugs or alcohol was some time in 2014. 19 September 2014, he performed landscaping work, including “sweeping” 20 and “pick[ing] up papers and trash,” wherein he lifted a “rake and 21 a broom” sweeping into a “rubber trashcan.” 22 he was unable to continue due to knee pain, arthritis, and a “disc 23 in the lower back” causing pain. 24 receiving any surgery for his knee and received only steroids under 25 the kneecap for treatment. 26 with his general health, arthritis, and right elbow. 27 “[B]ending or lifting” his right elbow creates pain and limits him 28 to lifting a half gallon of water or milk. (See AR 49-60). (AR 50). (AR 49). 8 Plaintiff is 52- The last time Plaintiff (AR 60). (AR 51-52). (AR 52). In However, Plaintiff denied Plaintiff experiences issues (AR 59). (AR 59). His doctor 1 told him to “keep [his] pace” because of two ruptured discs. 2 59). 3 but has been stable lately due to medication. 4 experiences chest pains because of his high blood pressure, which 5 occurs usually when laying down. (AR Plaintiff has high blood pressure, which “goes up and down,” (AR 54). Plaintiff (AR 55). 6 7 Presently, Plaintiff lives with his daughter who helps him 8 with daily activities and driving (he does not drive himself). 9 50, 58). (AR Previously, Plaintiff lived with his older sister, who 10 helped take him to “all of [his] doctors’ appointments, [made] sure 11 [he] got fed, [and] washed [his] clothes.” 12 is unable to do any of those things presently, particularly washing 13 clothes, because the pain in his lower back and right knee flares 14 up. (AR 57-58). Plaintiff (AR 58). 15 16 In his daily life, Plaintiff can sleep only about “four hours 17 because . . . [his] back starts shaking.” 18 from the pain of laying down, Plaintiff needs to sit for fifteen 19 to twenty minutes after waking up, then get up and walk around for 20 approximately forty-five minutes, which does not “relieve the pain 21 that much,” but “help[s] it a little bit.” 22 can stand and walk for forty-five minutes to an hour, before needing 23 to rest for two to three hours. 24 for about an hour, but needs to move around for another forty-five 25 minutes to relieve any stiffness. 26 to write a simple note in English, read a grocery list or something 27 similar, but can write his own name. (AR 54). 28 9 (AR 53). Seeking relief (AR 53). Plaintiff Plaintiff can also sit (AR 60). (AR 55). Plaintiff is unable 1 Describing his mental health, Plaintiff feels depression that 2 comes and goes. 3 to four days out of the week. 4 with nightmares or recalling things from his past. (AR 57). 5 Plaintiff he 6 “claustrophobic” and generally dislikes it. 7 also “very rarely” goes outside because of his depression, and 8 occasionally goes to “the store” with his daughter if asked. 9 50, 58). (AR 55-56). dislikes large He experiences crying spells three (AR 56). groups of He previously had issues people because (AR 57). gets Plaintiff (AR 10 11 2. Legal Authority 12 13 When assessing a claimant’s credibility regarding subjective 14 pain or intensity of symptoms, the ALJ must engage in a two-step 15 analysis. 16 First, the ALJ must determine if there is medical evidence of an 17 impairment that could reasonably produce the symptoms alleged. 18 Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). 19 analysis, the claimant is not required to show that her impairment 20 could reasonably be expected to cause the severity of the symptom 21 she has alleged; she need only show that it could reasonably have 22 caused some degree of the symptom.” 23 (citation omitted). “Nor must a claimant produce objective medical 24 evidence of the pain or fatigue itself, or the severity thereof.” 25 Id. (citation omitted). Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). “In this Id. (emphasis in original) 26 27 If the claimant satisfies this first step, the ALJ must 28 evaluate the intensity, persistence, and limiting effects of the 10 1 alleged symptoms to determine the extent to which they limit the 2 ability to do work-related activities, taking into account the 3 objective medical evidence and other evidence in the record. 4 there is no evidence of malingering, the ALJ must provide specific, 5 clear and convincing reasons for rejecting the claimant’s testimony 6 about the severity of his symptoms. 7 omitted); see also Smolen, supra, 80 F.3d at 1284 (“[T]he ALJ may 8 reject the claimant’s testimony regarding the severity of her 9 symptoms only if he makes specific findings stating clear and 10 convincing reasons for doing so.”); Robbins v. Soc. Sec. Admin., 11 466 F.3d 880, 883 (9th Cir. 2006)(“[U]nless an ALJ makes a finding 12 of malingering based on affirmative evidence thereof, he or she 13 may only find an applicant not credible by making specific findings 14 as to credibility and stating clear and convincing reasons for 15 each.”). 16 convincing 17 Security cases.” If Trevizo, supra (citation “This is not an easy requirement to meet: The clear and standard is the most demanding required in Social Garrison, 759 F.3d at 1015 (citation omitted). 18 19 20 In discrediting the claimant’s subjective symptom testimony, the ALJ may consider the following: 21 22 (1) ordinary techniques of credibility evaluation, such 23 as 24 inconsistent 25 other testimony by the claimant that appears less than 26 candid; 27 failure to seek treatment or to follow a prescribed the claimant’s (2) reputation statements concerning unexplained or 28 11 for the lying, prior symptoms, inadequately and explained 1 course 2 activities. of treatment; and (3) the claimant’s daily 3 4 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014)(citation 5 omitted). 6 conduct, or internal contradictions in the claimant’s testimony, 7 also may be relevant. 8 Cir. 2014); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 9 1997). Inconsistencies between a claimant’s testimony and Burrell v. Colvin, 775 F.3d 1133, 1137 (9th However, it is improper for an ALJ to reject subjective 10 testimony based “solely” on its inconsistencies with the objective 11 medical evidence presented. 12 554 F.3d 1219, 1227 (9th Cir. 2009)(citation omitted). Bray v. Comm’r of Soc. Sec. Admin., 13 14 Further, the ALJ must make a credibility determination with 15 findings that are “sufficiently specific to permit the court to 16 conclude that the ALJ did not arbitrarily discredit claimant’s 17 testimony.” 18 2008)(citation omitted); see also Brown-Hunter v. Colvin, 806 F.3d 19 487, 493 (9th Cir. 2015)(“A finding that a claimant’s testimony is 20 not credible must be sufficiently specific to allow a reviewing 21 court to conclude the adjudicator rejected the claimant’s testimony 22 on 23 claimant’s testimony regarding pain,” citation omitted). 24 an ALJ’s interpretation of a claimant’s testimony may not be the 25 only reasonable one, if it is supported by substantial evidence, 26 “it is not [the court’s] role to second-guess it.” 27 Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. permissible grounds and did 28 12 not arbitrarily discredit a Although Rollins v. 1 3. The ALJ’s Assessment of Plaintiff’s Testimony 2 3 The ALJ addressed Plaintiff’s testimony as follows: 4 5 6 7 The claimant’s statements concerning the intensity, persistence and limiting effects of his symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision. 8 9 10 11 12 13 As mentioned earlier, the record reflects that the claimant was able to engage in work activity as a landscape laborer after his application filing date and through September 2014. (Hearing Testimony). Specifically, the claimant testified that this work activity sweeping and picking up trash (sic). (Hearing Testimony). The claimant (sic) ability to engage in this work activity is inconsistent with his allegations of disabling physical and mental symptoms and limitations. 14 15 16 17 18 19 20 21 In addition, despite the claimant’s allegations of disabling musculoskeletal symptoms and limitations, the record reflects that the course of treatment prescribed for the claimant has been overall routine and conservative in nature. Specifically, the claimant treatment has consisted primarily of pain medications, epidural steroid injections in the lumbar spine, and cortisone injections in the right knee. (Exhibit B12F/2, 14, 18, and 29). Moreover, the claimant informed his treating physician that this treatment helped to manage and alleviate his pain. (Exhibit B12F/13-15). This evidence is inconsistent with the claimant’s alleged severity of his symptoms and limitations. 22 23 24 25 26 Additionally, despite the claimant’s allegations of other disabling physical symptoms and limitations, the record reflects that the claimant has not received regular and consistent medical treatment for these conditions. This evidence is also inconsistent with the claimant’s alleged severity of his symptoms and limitations. 27 28 13 1 2 3 4 5 Furthermore, despite the claimant’s allegations of disabling mental symptoms and limitations, the claimant denied seeing a psychiatrist, being hospitalized for psychiatric treatment, or receiving any psychiatric treatment including medications or psychotherapy. (Exhibit B10F). This evidence is further inconsistent with the claimant’s alleged severity of symptoms and limitations. 6 7 8 9 Moreover, despite the claimant’s alleged use of a wheelchair and cane, the medical records do not indicate that the claimant presented for medical treatment using such an assistive device. This evidence is again inconsistent with the claimant’s alleged severity of his symptoms and limitations. 10 11 12 13 14 15 Overall, the claimant’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. Accordingly, these statements have been found to affect the claimant’s ability to work only to the extent they can reasonably be accepted as consistent with objective medical and other evidence. 16 17 (AR 34-35).6 18 19 A. Work Activity 20 21 The ALJ’s discrediting of Plaintiff’s testimony based on 22 Plaintiff’s work activity through September 2014 (see AR 35) is 23 not a specific, clear, and convincing reason. 24 “conflicts between [plaintiff’s] testimony and his own conduct,” Where there are 25 26 27 28 6 The ALJ found Plaintiff’s testimony with regard to difficulty “handling workplace spaces and interacting appropriately with supervisors, coworkers, and the general public” partially credible. (AR 37). 14 1 an ALJ may find the plaintiff’s testimony not credible. 2 119 3 Plaintiff’s work activity through September 2014 and the alleged 4 disability 5 disability onset date was amended at the administrative hearing to 6 September 1, 2014 (see AR 52). F.3d at 792. onset Here, date of there was January 1, no inconsistency 2014, since the Light, between alleged 7 8 B. Routine and Conservative Treatment 9 10 The ALJ’s discrediting of Plaintiff’s testimony based on the 11 “overall routine and conservative in nature” treatment of his 12 musculoskeletal symptoms (see AR 35) is not a specific, clear, and 13 convincing reason. 14 (N.D. Cal. Sept. 16, 2014)(“There is no guiding authority on what 15 exactly constitutes ‘conservative’ or ‘routine’ treatment.”); see 16 also Boitnott v. Colvin, 2016 WL 362348, *4 (S.D. Cal. January 29, 17 2016)(“[t]here 18 documentation in the medical record that the prescribed medication 19 constituted 20 conditions,” and the ALJ “was not qualified to draw his own 21 inference regarding whether more aggressive courses of treatments 22 were available for Plaintiff’s conditions”). 23 not ask Plaintiff at the hearing whether other treatment was 24 available and why he had not obtained more aggressive treatment 25 for his musculoskeletal symptoms. See Childress v. Colvin, 2014 WL 4629593, *12 was no medical ‘conservative’ testimony treatment of at the [the hearing or plaintiff’s] Here, the ALJ did 26 27 28 Moreover, although the ALJ partially discredited Plaintiff’s testimony about his musculoskeletal 15 symptoms and limitations 1 because he “informed his treating physician that his treatment 2 helped to manage and alleviate his pain” (AR 35, citing AR 418- 3 420, see Warre v. Comm’r of the SSA, 439 F.3d 1001, 1006 (9th Cir. 4 2006)(“Impairments 5 medication 6 eligibility for SSI benefits.”); see also Tommasetti, supra, 533 7 F.3d 8 conservative treatment . . . such a response . . . undermines 9 [their] reports regarding the disabling nature of [their] pain.”)), 10 the two Progress Notes cited by the ALJ do not support the ALJ’s 11 position. 12 average” pain], 420 [On May 3, 2016, Plaintiff reported “10/10 13 average” pain accompanied by “70-80%” pain relief that only “lasted 14 a week” from a recent lumbar spine epidural injection]).7 at are 1040 not that can disabling (Where a be controlled for plaintiff the effectively purpose “respond[s] of with determining favorable to (See AR 418 [On April 5, 2016 Plaintiff reported “9/10 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Contrary to the ALJ’s determination, the record reflects that Plaintiff’s pain was not alleviated significantly during the course of his treatment, from June 11, 2014 to August 31, 2016. (See AR 487 [Progress Note dated June 11, 2014, “6/10 average” pain], 484 [Progress Note dated July 14, 2014, “5/10 average” pain], 481 [Progress Note dated August 12, 2014, “4/10 average” pain], 478 [Progress Note dated October 9, 2014, “5/10 average” pain], 475 [Progress Note dated November 7, 2014, “5/10 average” pain], 472 [Progress Note dated December 9, 2014, “8/10 average” pain], 469 [Progress Note dated January 8, 2015, “6/10 average” pain], 466 [Progress Note dated February 5, 2015, “8/10 average” pain], 463 [Progress Note dated March 6, 2015, “8/10 average” pain], 460 [Progress Note dated April 3, 2015, “10/10 average” pain], 457 [Progress Note dated May 3, 2015, “9/10 average” pain], 454 [Progress Note dated June 2, 2015, “10/10 average” pain], 451 [Progress Note dated June 30, 2015, “10/10 average” pain], 448 [Progress Note dated July 28, 2015, “10/10 average” pain], 445 [Progress Note dated August 25, 2015, “9/10 average” pain], 442 [Progress Note dated September 22, 2016, “10/10 average” pain], 439 [Progress Note dated October 20, 2015, “7/10 average” pain], 436 [Progress Note dated November 17, 2015, “10/10 average” pain], 431 [Progress Note dated January 12, 2016, “5/10 average” pain and 16 1 C. Lack of Treatment for Non-Musculoskeletal Symptoms 2 3 The ALJ’s discrediting of Plaintiff’s testimony based on his 4 lack 5 specifically, hepatitis C, hypertension, and history of stroke 6 accompanied by residual right arm and leg weakness symptoms (see 7 AR 35), is a specific, clear, and convincing reason. 8 Bowen, 885 F.2d 597, 603 (9th Cir. 1989)(An “unexplained, or 9 inadequately of treatment for explained, his failure non-musculoskeletal to seek symptoms, See Fair v. treatment” may be a 10 relevant 11 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)(“Although a lack of 12 medical evidence cannot form the sole basis for discounting pain 13 testimony, 14 credibility analysis.”). 15 Plaintiff 16 hypertension. 17 Plaintiff obtained treatment for his stroke issues during only two 18 emergency room visits (see AR 311-19, 218-89 [April 10, 2014 and 19 May 9, 2014]). factor it in is sought assessing a factor credibility); that the ALJ see can also Burch consider in v. his There is no indication in the record that specific Moreover, as treatment the ALJ for hepatitis discussed (see C and AR 33), 20 21 22 23 24 25 26 27 28 “not much pain relief” from first lumbar spine epidural injection], 428 [Progress Note dated February 9, 2016, “10/10 average” pain], 425 [Progress Note dated March 8, 2016, “9/10 average” pain], 415 [Progress Note dated June 3, 2016, “10/10 average” pain], 412 [Progress Note dated July 1, 2016, “10/10 average” pain], 409 [Progress Note dated July 3, 2016, “10/10 average” pain], 406 [Progress Note dated August 31, 2016, “7/10 average” pain]). 17 1 D. Lack of Treatment for Psychiatric Symptoms 2 3 The ALJ’s discrediting of Plaintiff’s testimony based on his 4 lack of treatment for his mental symptoms (see AR 35) is a specific, 5 clear, and convincing reason. 6 1428, 7 claimant’s 8 allegations of debilitating pain). 9 35), Plaintiff received only one psychiatric evaluation to treat 10 and assess his mental symptoms (see AR 399-405 [November 4, 2014]). 1434 (9th Cir. impairment See Johnson v. Shalala, 60 F.3d 1995)(absence was of inconsistent medical with treatment the for claimant’s As the ALJ discussed (see AR 11 12 E. Assistive Devices 13 14 The ALJ’s discrediting of Plaintiff’s testimony based upon 15 the fact that “the medical records do not indicate that the claimant 16 presented for medical treatment using . . . a wheelchair and cane” 17 (AR 35) is not a specific, clear, and convincing reason. 18 ALJ “may weigh inconsistencies between the claimant’s testimony 19 and his or her conduct, daily activities, and work record, among 20 other factors,” Bray, supra, 554 F.3d at 1227, the lack of reference 21 in the record to such assistive devices is not inconsistent with 22 Plaintiff’s testimony. While an 23 24 F. The ALJ’s Error Was Not Harmless 25 26 As discussed above, the ALJ gave three improper reasons (work 27 activity, routine and conservative treatment, and non-presentation 28 of assistive devices) and two proper reasons (lack of treatment 18 1 for treatment for 2 psychiatric symptoms) for discrediting Plaintiff’s testimony. The 3 question is whether the ALJ’s error in giving three improper 4 reasons is harmless error. 5 1028 (ALJ’s decision will not be reversed for harmless error “when 6 it 7 inconsequential 8 determination.’”)(citations omitted); see also Carmickle, supra, 9 533 F.3d at 1162 (“[T]he relevant inquiry in this context is . . . 10 whether the ALJ’s decision remains legally valid, despite such 11 error”). 12 testimony regarding his non-musculoskeletal symptoms, but did not 13 provide a specific, clear, and convincing reason for rejecting 14 Plaintiff’s 15 limitations, which were a significant part of Plaintiff’s treatment 16 and the record as a whole (see AR 52-54, 58-60 [Plaintiff’s 17 testimony discussing his musculoskeletal symptoms], 392-96 [Dr. 18 Seung Lim’s physical evaluation], 406-489 [Treatment record from 19 Global Pain Care]). Accordingly, the Court has no basis for finding 20 the ALJ’s improper reasons for discrediting Plaintiff’s testimony 21 to be non-musculoskeletal is clear from the to symptoms, 8 and lack of See Tommasetti, supra, 533 F.3d at record the that ‘the ALJ’s ultimate error was nondisability Here, the ALJ properly discredited Plaintiff’s symptom testimony as to his musculoskeletal symptoms and harmless error. 22 23 24 25 26 27 28 8 The Court notes that neither party discusses the issue of harmless error. (See Joint Stip.) 19 1 IV. REMAND IS WARRANTED 2 3 The decision whether to remand for further proceedings or 4 order an immediate award of benefits is within the district court’s 5 discretion. 6 2000). 7 administrative proceedings, or where the record has been fully 8 developed, it is appropriate to exercise this discretion to direct 9 an immediate award of benefits. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. Where no useful purpose would be served by further Id. at 1179 (“[T]he decision of 10 whether to remand for further proceedings turns upon the likely 11 utility of such proceedings.”). 12 circumstances of the case suggest that further administrative 13 review 14 appropriate. 15 Harman, 211 F.3d at 1179-81. could remedy the However, where, as here, the Commissioner’s errors, remand is McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); 16 17 Since the ALJ failed to properly assess Plaintiff’s symptom 18 testimony, remand is appropriate. 19 be resolved before a determination of disability can be made, and 20 “when the record as a whole creates serious doubt as to whether 21 the [Plaintiff] is, in fact, disabled within the meaning of the 22 Social Security Act,” further administrative proceedings would 23 serve a useful purpose and remedy defects. Burrell, supra, 775 F.3d 24 at 1141 (citations omitted). 25 // 26 // 27 // 28 20 Because outstanding issues must 1 ORDER 2 3 For the foregoing reasons, the decision of the Commissioner 4 is reversed, and the matter is remanded for further proceedings 5 pursuant to Sentence 4 of 42 U.S.C. § 405(g). 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: July 10, 2019 10 /s/ _________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21
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