Vilma Martinez v. Andrew Saul, No. 5:2020cv01082 - Document 25 (C.D. Cal. 2021)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Jacqueline Chooljian. the decision of the Commissioner of Social Security is REVERSED and this matter is REMANDED for further administrative action consistent with this Opinion. (see document for further details) (et)
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Vilma Martinez v. Andrew Saul Doc. 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 VILMA M.,1 Plaintiff, 12 v. 13 14 15 Case No. 5:20-cv-01082-JC MEMORANDUM OPINION AND ORDER OF REMAND ANDREW SAUL, Commissioner of Social Security Administration, Defendant. 16 17 I. 18 SUMMARY On May 27, 2020, plaintiff filed a Complaint seeking review of the 19 Commissioner of Social Security’s denial of her application for benefits. The 20 parties have consented to proceed before the undersigned United States Magistrate 21 Judge. 22 This matter is before the Court on the parties’ cross-motions for summary 23 judgment (respectively, “Plaintiff’s Motion” and “Defendant’s Motion”). The 24 Court has taken the parties’ arguments under submission without oral argument. 25 See Fed. R. Civ. P. 78; L.R. 7-15; Case Management Order ¶ 5. 26 27 28 1 Plaintiff’s name is partially redacted to protect her privacy in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 1 Dockets.Justia.com 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is REVERSED AND REMANDED for further proceedings 3 consistent with this Memorandum Opinion and Order of Remand. 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On February 24, 2017, plaintiff protectively filed an application for 7 Supplemental Security Income, alleging disability beginning on July 1, 2016, due 8 to spinal surgery, head pain, arthritis, left-side weakness, swollen feet, anxiety, 9 depression, and insomnia. (See Administrative Record (“AR”) 385-88, 406). An 10 Administrative Law Judge (“ALJ”) subsequently examined the medical record and, 11 on March 6, 2019, heard testimony from a vocational expert and from plaintiff, 12 who was represented by counsel, and who communicated with the assistance of a 13 Spanish language interpreter. (AR 243-56). On March 25, 2019, the ALJ 14 determined that plaintiff has not been disabled since February 24, 2017, the 15 application date. (AR 27-37). Specifically, the ALJ found: (1) plaintiff has the 16 following severe impairments: anxiety, depression, and degenerative disc disease 17 of the lumbar spine status post laminectomy and fusion (AR 29); (2) plaintiff’s 18 impairments, considered individually or in combination, do not meet or medically 19 equal a listed impairment (AR 30); (3) plaintiff retains the residual functional 20 capacity2 to perform a reduced range of light work3 (20 C.F.R. § 416.967(b)) (AR 21 22 23 24 25 26 27 28 2 Residual functional capacity is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 3 Specifically, the ALJ found that plaintiff can: (i) lift, carry, push or pull twenty pounds occasionally, ten pounds frequently; (ii) occasionally push or pull with the bilateral lower extremities; (iii) stand or walk or sit for six hours out of an eight-hour workday and sit for six hours out of an eight-hour workday; (iv) occasionally climb ramps, stairs, ladders, ropes or scaffolds; (v) occasionally balance, stoop, kneel, crouch or crawl; (vi) occasionally walk on uneven terrain; (vii) have occasional exposure to hazards, such as unprotected heights and dangerous moving mechanical parts; (viii) perform only simple and routine tasks; and (continued...) 2 1 31); (4) plaintiff is capable of performing past relevant work as a “small products 2 assembler I” as generally and actually performed (AR 36); and (5) plaintiff’s 3 statements regarding the intensity, persistence, and limiting effects of subjective 4 symptoms were inconsistent with the medical evidence and other evidence in the 5 record (AR 34). 6 On April 14, 2020, the Appeals Council denied plaintiff’s application for 7 review of the ALJ’s decision. (AR 1-4). 8 III. APPLICABLE LEGAL STANDARDS 9 A. 10 Administrative Evaluation of Disability Claims To qualify for disability benefits, a claimant must show that she is unable “to 11 engage in any substantial gainful activity by reason of any medically determinable 12 physical or mental impairment which can be expected to result in death or which 13 has lasted or can be expected to last for a continuous period of not less than 12 14 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (quoting 42 15 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted), superseded by 16 regulation on other grounds; 20 C.F.R. §§ 404.1505(a), 416.905. To be considered 17 disabled, a claimant must have an impairment of such severity that she is incapable 18 of performing work the claimant previously performed (“past relevant work”) as 19 well as any other “work which exists in the national economy.” Tackett v. Apfel, 20 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)). 21 To assess whether a claimant is disabled, an ALJ is required to use the five- 22 step sequential evaluation process set forth in Social Security regulations. See 23 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006) 24 (describing five-step sequential evaluation process) (citing 20 C.F.R. §§ 404.1520, 25 416.920). The claimant has the burden of proof at steps one through four – i.e., 26 27 28 3 (...continued) (ix) perform only work that does not require interaction with the general public as part of the job duties. (AR 31). 3 1 determination of whether the claimant was engaging in substantial gainful activity 2 (step 1), has a sufficiently severe impairment (step 2), has an impairment or 3 combination of impairments that meets or medically equals one of the conditions 4 listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings”) (step 3), and 5 retains the residual functional capacity to perform past relevant work (step 4). 6 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted). The 7 Commissioner has the burden of proof at step five – i.e., establishing that the 8 claimant could perform other work in the national economy. Id. 9 10 B. Federal Court Review of Social Security Disability Decisions A federal court may set aside a denial of benefits only when the 11 Commissioner’s “final decision” was “based on legal error or not supported by 12 substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871 13 F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The standard 14 of review in disability cases is “highly deferential.” Rounds v. Comm’r of Soc. 15 Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015) (citation and quotation marks 16 omitted). Thus, an ALJ’s decision must be upheld if the evidence could reasonably 17 support either affirming or reversing the decision. Trevizo, 871 F.3d at 674-75 18 (citations omitted). Even when an ALJ’s decision contains error, it must be 19 affirmed if the error was harmless. See Treichler v. Comm’r of Soc. Sec. Admin., 20 775 F.3d 1090, 1099 (9th Cir. 2014) (ALJ error harmless if (1) inconsequential to 21 the ultimate nondisability determination; or (2) ALJ’s path may reasonably be 22 discerned despite the error) (citation and quotation marks omitted). 23 Substantial evidence is “such relevant evidence as a reasonable mind might 24 accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (defining 25 “substantial evidence” as “more than a mere scintilla, but less than a 26 preponderance”) (citation and quotation marks omitted). When determining 27 whether substantial evidence supports an ALJ’s finding, a court “must consider the 28 entire record as a whole, weighing both the evidence that supports and the evidence 4 1 that detracts from the Commissioner’s conclusion[.]” Garrison v. Colvin, 759 F.3d 2 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted). 3 Federal courts review only the reasoning the ALJ provided, and may not 4 affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.” 5 Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need 6 not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s 7 reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin, 8 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099). 9 A reviewing court may not conclude that an error was harmless based on 10 independent findings gleaned from the administrative record. Brown-Hunter, 806 11 F.3d at 492 (citations omitted). When a reviewing court cannot confidently 12 conclude that an error was harmless, a remand for additional investigation or 13 explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173 14 (9th Cir. 2015) (citations omitted). 15 IV. DISCUSSION 16 Plaintiff claims that the ALJ erred by improperly rejecting her subjective 17 symptom testimony. (Plaintiff’s Motion at 12-15). For the reasons stated below, 18 the Court finds that the ALJ erred on this basis. Since the Court cannot find that 19 the error was harmless, a remand is warranted. 20 A. 21 When determining disability, an ALJ is required to consider a claimant’s Pertinent Law 22 impairment-related pain and other subjective symptoms at each step of the 23 sequential evaluation process. 20 C.F.R. §§ 404.1529(a), 404.1529(d), 416.929(a), 24 416.929(d). Accordingly, when a claimant presents “objective medical evidence of 25 an underlying impairment which might reasonably produce the pain or other 26 symptoms [the claimant] alleged,” the ALJ is required to determine the extent to 27 which the claimant’s statements regarding the intensity, persistence, and limiting 28 effects of his or her subjective symptoms (“subjective statements” or “subjective 5 1 complaints”) are consistent with the record evidence as a whole and, consequently, 2 whether any of the individual’s symptom-related functional limitations and 3 restrictions are likely to reduce the claimant’s capacity to perform work-related 4 activities. 20 C.F.R. §§ 404.1529(a), 404.1529(c)(4), 416.929(a), 416.929(c)(4); 5 SSR 16-3p, 2017 WL 5180304, at *4-*10. 4 When an individual’s subjective 6 statements are inconsistent with other evidence in the record, an ALJ may give less 7 weight to such statements and, in turn, find that the individual’s symptoms are less 8 likely to reduce the claimant’s capacity to perform work-related activities. See 9 SSR 16-3p, 2017 WL 5180304, at *8. In such cases, when there is no affirmative 10 finding of malingering, an ALJ may “reject” or give less weight to the individual’s 11 subjective statements “only by providing specific, clear, and convincing reasons 12 for doing so.” Brown-Hunter, 806 F.3d at 488-89. This requirement is very 13 difficult to satisfy. See Trevizo, 871 F.3d at 678 (“The clear and convincing 14 standard is the most demanding required in Social Security cases.”) (citation and 15 quotation marks omitted). 16 An ALJ’s decision “must contain specific reasons” supported by substantial 17 evidence in the record for giving less weight to a claimant’s statements. SSR 1618 3p, 2017 WL 5180304, at *10. An ALJ must clearly identify each subjective 19 statement being rejected and the particular evidence in the record which 20 purportedly undermines the statement. Treichler, 775 F.3d at 1103 (citation 21 omitted). Unless there is affirmative evidence of malingering, the Commissioner’s 22 reasons for rejecting a claimant’s testimony must be “clear and convincing.” 23 Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (internal quotation marks 24 /// 25 4 26 27 28 Social Security Ruling 16-3p superseded SSR 96-7p and, in part, eliminated use of the term “credibility” from SSA “sub-regulatory policy[]” in order to “clarify that subjective symptom evaluation is not an examination of an individual’s [overall character or truthfulness] . . . [and] more closely follow [SSA] regulatory language regarding symptom evaluation.” See SSR 16-3p, 2017 WL 5180304, at *1-*2, *10-*11. 6 1 omitted), as amended (Apr. 9, 1996). “General findings are insufficient[.]” 2 Reddick, 157 F.3d at 722 (citations omitted). 3 If an ALJ’s evaluation of a claimant’s statements is reasonable and is 4 supported by substantial evidence, it is not the court’s role to second-guess it. See 5 Thomas, 278 F.3d at 959 (citation omitted). When an ALJ fails properly to discuss 6 a claimant’s subjective complaints, however, the error may not be considered 7 harmless “unless [the Court] can confidently conclude that no reasonable ALJ, 8 when fully crediting the testimony, could have reached a different disability 9 determination.” Stout, 454 F.3d at 1056; see also Brown-Hunter, 806 F.3d at 492 10 (ALJ’s erroneous failure to specify reasons for rejecting claimant testimony “will 11 usually not be harmless”). 12 B. 13 Plaintiff alleged the following in her function report on April 6, 2017: Plaintiff’s Subjective Statements 14 Plaintiff’s back injury causes her to suffer a great deal of depression, anxiety, and 15 chronic insomnia. (AR 438). She experiences constant pain every day, and the 16 medications only help a little, so she cannot sleep on some nights, and she 17 struggles with most physical activities. (AR 432, 438). She reads, watches 18 television, talks to friends on the phone daily, and goes out to eat with friends. 19 (AR 435). She makes her own meals every day, which takes about fifteen minutes. 20 (AR 433). She also does household chores such as light laundry and dusting about 21 once a week, and washing dishes about three times a week for ten minutes at a 22 time. (AR 433). She sometimes needs help lifting laundry. (AR 433). She drives 23 herself, does “minimal exercises” at the gym three days a week, and goes shopping 24 for clothes or groceries about once a week for an hour. (AR 434-35). She cannot 25 go to sporting events or concerts and cannot drive long distances. (AR 436). She 26 cannot stand or sit for long periods, lift more than ten or fifteen pounds, bend over, 27 or do any activity that exacerbates her back pain. (AR 431). She can walk for 28 about thirty minutes before needing a fifteen-minute rest. (AR 436). She has 7 1 difficulty handling stress, and struggles to deal with changes in her routine. (AR 2 437). 3 Plaintiff alleged the following in her hearing testimony on March 6, 2019: 4 Her 2011 spinal fusion surgery helped a little with her leg numbness, and her 5 physical therapy also helped while she was doing it, but repetitive bending over or 6 lifting still causes pain, and she is unable to do everyday tasks, such as picking 7 things up from the floor. (AR 248-49). She also has difficulty opening bottles due 8 to tendonitis in the left shoulder, though the physical therapy helped with that as 9 well. (AR 249). She was currently awaiting a doctor’s authorization to continue 10 with physical therapy. (AR 249). Plaintiff experiences “depression with a lot of 11 anxiety,” including panic attacks, which cause her to become “very panicky” about 12 hurting herself, and she gets diarrhea and has difficulty sleeping. (AR 250). She 13 sees a therapist every other week for these conditions, which has helped her feel 14 more secure and sleep better. (AR 250-52). She now sleeps well three or four 15 nights out of the week, though sometimes for only four or five hours. (AR 25116 52). Her depression and anxiety also cause pain in her head and stomach, along 17 with diarrhea. (AR 250). However, she has “some very difficult days.” (AR 250). 18 On days when she has not slept, her head hurts a lot, the pain in her back and legs 19 increases, and she feels like vomiting and cannot eat. (AR 252). On such days, 20 she cannot leave the house, and she spends the day just lying down. (AR 252). 21 This occurs two or three days a week, and she would be unable to work on such 22 days. (AR 252). 23 C. 24 The ALJ determined that plaintiff’s “medicall determinable impairments Analysis 25 could reasonably be expected to cause the alleged symptoms,” but plaintiff’s 26 “statements concerning the intensity, persistence and limiting effects of these 27 symptoms are not entirely consistent with the medical evidence and other evidence 28 in the record for the reasons explained in th[e] decision.” (AR 34). However, the 8 1 ALJ failed to provide specific, clear, and convincing reasons to support this 2 determination. 3 First, the ALJ asserted that plaintiff’s alleged limitations were undermined 4 by her activities of daily living, while noting in particular that plaintiff “prepared 5 meals, performed light household chores, went places alone, could drive a vehicle, 6 went shopping and spent time with others.” (AR 33). However, the ALJ did not 7 specify or explain how any of these activities conflicted with any of plaintiff’s 8 statements or alleged limitations. The ALJ instead stated, vaguely, that “some of 9 the physical and mental abilities and social interactions required in order to 10 perform these activities are the same as those necessary for obtaining and 11 maintaining employment and are inconsistent with the presence of an 12 incapacitating or debilitating condition.” (AR 33). Without further explanation, 13 the rationale for this finding remains unclear. It is unclear, for example, how 14 plaintiff’s ability to do light cleaning once a week, or to shop about once a week 15 for an hour at a time, demonstrates an ability to maintain employment. It is further 16 unclear how such activities conflict with plaintiff’s alleged limitations, which 17 include an inability to lift more than ten or fifteen pounds, to stand or sit for long 18 periods, or to walk for more than thirty minutes at a time without resting. (AR 19 431, 436). Moreover, none of plaintiff’s reported activities conflicts with her 20 testimony that for two or three days a week, she cannot leave the house due to pain, 21 fatigue, nausea, and lack of sleep, and would be unable to go to work on such days. 22 (AR 251-52). Because the ALJ failed to articulate why plaintiff’s activities 23 undermine her subjective statements, this is not a clear and convincing basis for 24 discounting such statements. See Treichler, 775 F.3d at 1103 (“Although the 25 ALJ’s analysis need not be extensive, the ALJ must provide some reasoning in 26 order for us to meaningfully determine whether the ALJ’s conclusions were 27 supported by substantial evidence.”). 28 /// 9 1 The ALJ’s only other asserted basis for discounting plaintiff’s statements is 2 the purported lack of objective medical evidence,5 which is not a sufficient basis, in 3 itself, although it may be a relevant factor. See, e.g., Burch, 400 F.3d at 681 4 (“Although lack of medical evidence cannot form the sole basis for discounting 5 pain testimony, it is a factor that the ALJ can consider in his credibility analysis.”). 6 Here, however, the ALJ did not specify or explain how any of plaintiff’s medical 7 evidence undermined or contradicted her statements and testimony. The ALJ 8 instead simply referenced plaintiff’s examination findings, including normal range 9 of motion, intact sensation, full motor strength, and normal posture and gait. (AR 10 33). The ALJ also pointed to plaintiff’s mental status examinations – noting in 11 particular that from January 27 to June 30, 2017, plaintiff presented with a 12 depressed mood, constricted affect, and partial insight, but she “had average eye 13 contact, cooperative attitude, clear speech, logical thought process, normal 14 cognition and only mildly impaired to normal judgment”; and on August 25, 2017, 15 she similarly showed a constricted affect and partial insight, but an “euthymic 16 mood, clear speech, logical thought process, normal thought content, normal 17 cognition and normal judgment.” (AR 33; see AR 488-98, 546-84). Without 18 further explanation, the ALJ fails to demonstrate how these findings support the 19 rejection of plaintiff’s statements – including, among other things, her testimony 20 that she would miss work two or three days a week due to pain, fatigue, and other 21 symptoms. See Lambert v. Saul, 980 F.3d 1266, 1278 (9th Cir. 2020) (“Although 22 the ALJ did provide a relatively detailed overview of [plaintiff’s] medical history, 23 ‘providing a summary of medical evidence . . . is not the same as providing clear 24 and convincing reasons for finding the claimant’s symptom testimony not 25 5 26 27 28 Although the ALJ asserted that plaintiff “has not generally received the type of medical treatment one would expect for an individual with the severity of symptoms alleged” (AR 33), the ALJ did not actually discuss or reference plaintiff’s “treatment,” per se, as a basis for discounting her subjective complaints. Instead, the ALJ followed this reference to “treatment” by noting only the examination findings. (AR 33). 10 1 credible.”) (quoting Brown-Hunter, 806 F.3d at 494); see also id. at 1268 (“[T]he 2 ALJ must identify the specific testimony that he discredited and explain the 3 evidence undermining it.”). 4 Because the ALJ failed to provide specific, clear, and convincing reasons to 5 discount plaintiff’s subjective statements, remand is warranted for reconsideration 6 of these statements.6 See Treichler, 775 F.3d at 1103 (“Because ‘the agency’s 7 path’ cannot ‘reasonably be discerned,’ we must reverse the district court’s 8 decision to the extent it affirmed the ALJ’s credibility determination.”) (quoting 9 Alaska Dep’t of Env’t Conserv. v. E.P.A., 540 U.S. 461, 497 (2004)). 10 V. CONCLUSION 11 For the foregoing reasons, the decision of the Commissioner of Social 12 Security is REVERSED and this matter is REMANDED for further administrative 13 action consistent with this Opinion.7 14 LET JUDGMENT BE ENTERED ACCORDINGLY. 15 DATED: April 6, 2021 16 _____________/s/____________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 6 The Court need not, and has not adjudicated plaintiff’s other challenges to the ALJ’s 23 decision, except insofar as to determine that a reversal and remand for immediate payment of 24 benefits would not be appropriate. 25 26 27 28 7 When a court reverses an administrative determination, “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted); Treichler, 775 F.3d at 1099 (noting such “ordinary remand rule” applies in Social Security cases) (citations omitted). The Court has determined that a reversal and remand for immediate payment of benefits would not be appropriate. 11
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