Julie A. Banks v. Carolyn W. Colvin, No. 8:2014cv01173 - Document 16 (C.D. Cal. 2015)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND, by Magistrate Judge Alka Sagar. For the foregoing reasons, 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 further details.) (sbou)
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Julie A. Banks v. Carolyn W. Colvin Doc. 16 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-SOUTHERN DIVISION 11 12 JULIE A. BANKS, 13 14 Plaintiff, v. 15 CAROLYN W. COLVIN, Acting Commissioner of Social 16 Security, 17 18 19 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. SA CV 14-01173-AS MEMORANDUM OPINION AND ORDER OF REMAND Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY ORDERED 20 that this matter is remanded 21 consistent with this Opinion. for further administrative action 22 23 24 PROCEEDINGS On July 24, 2014, Plaintiff filed a Complaint seeking review of the 25 denial of her application for Disability Insurance Benefits. (Docket 26 Entry No. 1). The parties have consented to proceed before the 27 undersigned United States Magistrate Judge. (Docket Entry Nos. 8-9). 28 On December 15, 2014, Defendant filed an Answer along with the Administrative Record (“AR”). (Docket Entry Nos. 11-12). The parties Dockets.Justia.com 1 filed a Joint Position Statement (“Joint Stip.”) on March 2, 2015, 2 setting forth their respective positions regarding Plaintiff’s claims. 3 (Docket Entry No. 14). 4 The Court has taken this matter under submission without oral 5 argument. See C.D. Cal. L.R. 7-15; “Order Re: Procedures In Social 6 Security Case,” filed July 29, 2014 (Docket Entry No. 4). 7 8 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 9 10 In March 2009, Plaintiff, formerly employed as a cashier/checker in 11 a grocery store (see AR 90, 276), filed an application for Disability 12 Insurance Benefits, alleging a disability since March 1, 2007. (See AR 23, 67, 86, 112).1 13 14 On February 8, 2011, the Administrative Law Judge (“ALJ”), Helen E. 15 Hesse, heard testimony from Plaintiff, medical expert Sami Nafoosi, and 16 vocational expert Alan Eye. (See AR 86-106). On February 22, 2011, the 17 ALJ issued a decision denying Plaintiff’s application. (See AR 112-20). 18 Plaintiff requested that the Appeals Council review the ALJ’s 19 Decision. (See AR 185, 328-30, 333-34). On May 8, 2012, the Appeals 20 Council vacated the Decsion and remanded the matter in order for the ALJ 21 to do the following: “[A]sk any health care professional who plans to 22 testify to confirm the accuracy of the statement or report of his or her 23 24 professional qualifications which will be entered into the record as an exhibit. If there is no statement or report of professional qualifications, or the individual indicates the statement or report 25 26 1 The administrative record does 27 Plaintiff’s application. (See Joint Stip. at 2 not contain a copy of n.1). The exact date in March on which she filed the application is unclear. (See 28 [stating March 27, 2009], 67 [stating March 12, 2009], 86 [stating AR 33 March 12, 2009], 107-08 [stating March 12, 2009], 112, 120 [stating March 12, 2009]). 2 1 contains an error, the Administrative Law Judge will ‘qualify’ the 2 health care professional before he or she testifies by asking questions 3 on the record which will elicit the necessary information about his or 4 5 her qualifications. (See HALLEX I-2-6-70).” (See AR 126-27). On February 13, 2013, the ALJ heard testimony from Plaintiff, 6 medical expert Arnold Ostrow, and vocational expert Alan Eye. (See AR 7 67-83). On April 2, 2013, the ALJ issued a decision denying Plaintiff’s 8 application. 9 10 impairments (See AR 23-33). -- cervical After finding that Plaintiff had severe spondylosis, fibromyalgia syndrome, and derangement of the left meniscus (AR 25-33),2 the ALJ found that Plaintiff had the residual functional capacity3 (“RFC”) to perform light 11 work,4 with the following limitations: sitting 6 hours in an 8-hour 12 workday; standing and walking 6 hours in an 8-hour workday; occasionally 13 lifting 20 pounds and frequently lifting 10 pounds; no operating foot 14 pedals with the left lower extremity; occasionally climbing stairs, 15 bending, balancing, kneeling and crouching; no ladders, ropes, scaffolding, stooping or crawling; no working at unprotected heights; 16 and no lifting above shoulder level with both upper extremities. (AR 2717 31). After finding that Plaintiff could not perform her past relevant 18 work as a cashier/checker (AR 31-32), the ALJ found that jobs existed in 19 significant numbers in the national economy that Plaintiff could 20 21 perform, and therefore found that Plaintiff was not disabled within the meaning of the Social Security Act. (AR 32-33). 22 23 24 25 2 The ALJ found that Plaintiff’s right shoulder supraspinatus tendinopathy and colitis were non-severe impairments, and that Plaintiff’s plantar fasciitis was not a medically determinable impairment. (See AR 25-26). 3 A Residual Functional Capacity is what a claimant can still See 20 26 do despite existing exertional and nonexertional limitations. C.F.R. § 404.1545(a)(1). 27 4 “Light work involves lifting no more than 20 pounds at a time 28 with frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. §§ 404.1567(b) and 416.967(b). 3 1 Plaintiff requested that the Appeals Council review the ALJ’s 2013 2 Decision. (See AR 18-19 ). The request was denied on May 21, 2014. 3 (See AR 4-8). The ALJ’s 2013 Decision then became the final decision of 4 the Commissioner, allowing this Court to review the decision. See 42 U.S.C. §§ 405(g), 1383(c). 5 6 PLAINTIFF’S CONTENTIONS 7 8 Plaintiff alleges that the ALJ erred in failing to properly: (1) 9 determine whether Plaintiff could perform other jobs; and (2) reject 10 Plaintiff’s testimony. (See Joint Stip. at 4-13, 16-24). 11 DISCUSSION 12 13 After consideration of the record as a whole, the Court finds that 14 Plaintiff’s second claim of error warrants a remand for further Since the Court is remanding the matter based on 15 consideration. 16 Plaintiff’s 17 18 second claim of error, the Court will not address Plaintiff’s first claim of error. A. The ALJ Failed to Properly Assess Plaintiff’s Credibility 19 20 Plaintiff asserts that the ALJ failed to provide clear and 21 convincing reasons for finding Plaintiff not credible. (See Joint Stip. 22 at 18-24). Defendant asserts that the ALJ properly found Plaintiff not 23 credible. (See Joint Stip. at 22-23). 24 25 Plaintiff made the following statements in an undated Disability Report - Adult: Fibromyalgia, constant fatigue, muscle aches, headaches, 26 irritable bowel syndrom, and injuries to her feet, back and neck limit 27 her ability to work. She cannot do anything, including siting, standing 28 4 1 and walking, for a long period of time, and her arms, neck, back, and 2 shoulders constantly ache. (See AR 275, 280). 3 4 Plaintiff made the following statements in an undated Disability Report - Appeal: Her conditions make it much harder for her to take care 5 of her personal needs, and she needs to rest a lot. It is very hard for 6 her to do household chores; she had to rest all day to function. She 7 tries to do a few pool activities, but she cannot do any hobbies. (See 8 AR 302). 9 10 Plaintiff made the following statements in an Exertion Questionnaire dated June 5, 2009: 11 12 (1) 13 weakness, diarrhea and dizziness effect her way of life; she 14 has to rest until 2 p.m. to be able to help her children with 15 she lives in a house with family; (2) her pain, fatigue, homework and to cook dinner (and sometimes she cannot even do that much); (3) her fibromyalgia does not allow her to do much 16 on a daily basis (when she tries to do something, her body 17 pays 18 resulted in her not being able to use her arm for days]; she 19 goes to the pool to do leg exercises 3 times a week and goes 20 into the Jacuzzi every night to relax her muscles; she is not 21 for it later [for example, cleaning house windows able to sleep at night due to leg cramps; (4) she avoids walking long distances because of foot problems; she uses 22 orthopedics in her shoes and wears specific athletic shoes; 23 (5) she can climb stairs, but climbing one flight causes her 24 to feel week and her legs to feel strained and aching (she 25 sometimes needs to lay down to regain her leg strength); (6) 26 She tries not to lift anything over a couple of pounds (i.e., pots, pans, small loads of laundry, grocery bags); when she 27 28 does lift something heavier her right shoulder hurts and prevents her from moving her arm; (7) she does grocery 5 1 shopping with the help of her four children (ages 19, 18, and 2 10 [twins]); (8) she does not clean her home or living area; 3 (9) she drives a car, for a distance of probably 20 miles at 4 one time; (10)she does not work on cars or do yard work; (11) before her disability she did a lot of chores, but now needs 5 to rely completely on her children to do them; (12) she has 6 difficulty finishing housework because of stairs and having to 7 stand for too long (washing dishes); (13) she sleeps 8 to 9 8 hours, but requires 3 naps (1 to 2 hours) during the day; (14) 9 she takes Neurontin 300 mg (3 times a day), Cymbalta 30 mg (1 10 time a day); Hydrocodone 500 mg (1 to 3 times a day), and Aleve 200 mg (2 pills, two times a day); (15) she does not use 11 any assistive device; and (16) her previous disabilities 12 (neck, feet and lower back) and her fibromyalgia cause her to 13 feel depressed, and her doctor is still trying to find the 14 right combination of medications for her. 15 (See AR 284-86). 16 17 At the February 8, 2011 hearing, Plaintiff testified to the 18 following: 19 20 21 She is 43 years old, graduated high school in 1986, and attended one semester of community college. She lives with her husband, two sons, and one of her daughters. She has a 22 California Driver’s License and drives a van. 23 one dog, a labradoodle. 24 retail checker at Vons) but had to leave that job because of 25 plantar fasciitis, heel spurs and neuromas (surgery on her 26 feet did not help). Her family has She last worked in June 2004 (as a She worked at Vons a total of 17 years. (See AR 87-90, 93-94). 27 28 6 1 She is not able to work because of chronic fatigue and 2 radiating pain in her arms, shoulders and neck and down her 3 back (which affects her legs). 4 She is taking Cymbalta 60 mg (one time a day), Lyrica 50 mg (two times a day), Vicodin 500 mg (two times a day), and sometimes Flexiril (a muscle 5 relaxer, to sleep). 6 and help somewhat with depression from her pain and chronic 7 fatigue. 8 4 times a week. (See AR 91-92). The medications help her with her pain, For pain relief she also goes into a Jacuzzi about 9 10 She has done water aerobics (to strengthen her muscles) for approximately 5 years, on and off. (She has not done them 11 in a while because she has not felt good). 12 minutes a day, two times a day. 13 She takes a lot of naps. 14 sons 15 with their She does stretches at home. She listens to music. homework. She walks 15 She does not She helps her read, watch television, or use a computer (once a day she uses her husband’s computer to find out about her son’s homework). 16 17 (See AR 92-93). 18 19 20 21 At the February 13, 2013 hearing, Plaintiff testified to the following: She still lives with her husband and children, she still 22 has her driver’s license and drives the van, and she still 23 does her water aerobics and stretches. 24 10 to 12 minutes, two times a day. 25 backpack to help carry in groceries. She walks the dog for The dog has a little (See AR 68-70). 26 She can pick up 8 pounds, at most. 27 28 stand for no more than 30 minutes. She can walk for about a mile (which takes her about 12 minutes). 7 She can continually Walking causes her 1 legs to be strained and heavy; she usually has to sit down and 2 take off her shoes and put on orthotic Crocs. 3 to sit on a continuous basis for 8 hours a day; she needs to 4 She is not able walk around and stretch after 30 minutes of sitting. (See AR 71-80). 5 6 She has pain every day -- in her neck, shoulders, and 7 lower back. 8 feel weak. She has good days and bad days; treatment from her 9 doctor 10 She does not have pain in her hands; they just (like getting a steroid pack) for a “flare up” (something caused by a change in her daily conditions) would probably make her feel better for 3 days. She once was 11 bedridden; she suffered an episode in her neck which caused 12 her to use a neck brace and heavy muscle relaxers and pain 13 medication. (See AR 80-81). 14 15 The pool is a form of treatment for her fibroymalgia; it allows her to meditate and do arm stretches (and then go into 16 the Jacuzzi to massage her muscles). As far as medication for 17 her impairments, she takes Naproxen (Aleve) 400 mg (two times 18 a day), occasional pain medications (such as Norco for 30 days 19 when she has a “flare up”), Lyrica (for her fibromyalgia), and 20 Cymbalta (an antidepressant, for her fibromyalgia). 21 22 (See AR 77-78, 80-82). With respect to daily activities, her identity has 23 changed due to lessened activities (she is a little slower). 24 She gets her sons ready 25 down the street, drives home, walks the dog, takes a nap, has 26 for school, drives them to school lunch, walks the dog, goes to the pool (if it is warm enough) to do stretches and work on her posture, go to the Jacuzzi, 27 28 watches some television, helps her sons with their homework, and gets dinner started with her sons’ help, and stays up 8 1 until 9:00 p.m. 2 rested three times “with probably 30 to 45 minute[s] laying 3 down and getting ready for the next activity.”). (See AR 77). 4 (She stated that during the day she probably Her daughters and sons help her with household chores. 5 Everybody helps with the cooking of dinner. 6 her supervision and directions) do some cooking, set the 7 table, clean up after dinner (i.e., putting plates in the 8 dishwasher), bring down clothes that need to be washed, and 9 help her with the grocery shopping (she does not have to lift 10 or carry anything). Her sons (with (See AR 78-79). 11 With respect to her personal care, she cannot style her 12 hair like she used to (the clips hurt her head and her hair is 13 too heavy and hard to brush). 14 every other day. 15 She is only able to shower (See AR 79). After briefly summarizing Plaintiff’s statements in the Disability 16 Report - Adult, and the Disability Report - Appeal, and Plaintiff’s 17 testimony at the February 13, 2013 hearing (see AR 28), the ALJ stated: 18 “After careful consideration of the evidence, the undersigned finds that 19 the claimant’s medically determinable impairments could reasonably be 20 21 expected to cause alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons explained in 22 this decision.” 23 24 the (Id.). After making a determination of Plaintiff’s RFC based, in part, on 25 a review and consideration of the treating, examining, and reviewing 26 medical sources (see AR 28-30), credibility as follows: 27 28 9 the ALJ addressed Plaintiff’s 1 One factor affecting the claimant’s credibility is her 2 treatment history. The claimant’s medical records show almost 3 continuous access to treatment based on the medical records in 4 Exhibit 2F, 4F, 6F, 7F and 8F. In addition, these treatment notes also show very few actual examinations for her treatment 5 physicians as the bulk of her treatment notes are records of 6 continued prescriptions for her medications. 7 there is a treatment note dated May 24, 2011 (see Exhibit 8 7F/14) and the next treatment note is not dated until December 9 14, 2012 (see Exhibit 8F/3). 10 For example, The records between those dates as shown in Exhibits 7F and 8F are all notations of continued prescriptions for her medications (see Exhibits 7F and 8F). 11 This shows the claimant only needed continued prescriptions 12 for her medications and did not need additional observations 13 from her treating physicians for much of her recent treatment 14 history. 15 This also shows the claimant’s impairments are not as significant as alleged as she did not require additional observations or visits with her treating physicians. Thus, 16 the undersigned finds the claimant’s credibility is affected 17 by her treatment history. 18 19 20 21 Another factor affecting her treatment history is the notations of other measures that affect her symptoms. The treatment note dated December 14, 2012 notes the claimant is using a Jacuzzi to help her symptoms (Exhibit 8F/3). This 22 shows the claimant has access to other methods of symptom 23 control and that she is using them to help control her 24 symptoms. 25 significant nature of her symptoms as they are helped by less 26 This also negates her allegations invasive and other non-medically related methods. credibility is affected by this. 27 28 10 about the Thus, her 1 Further, the claimant’s work history affects 2 credibility. 3 all work activity in 2004 or 2005 (see Exhibit 12D). then 4 the The claimant’s earnings record shows she ceased claimant earnings. her has posted no additional, Since countable This corroborates the claimant’s allegations that 5 she has not been able to work for a number of years. 6 the 7 bolsters her credibility. undersigned finds that the claimant’s work Thus, history 8 * * * * * 9 10 . . . Additionally, the claimant’s statements and 11 allegations about the severity and effect of her impairments 12 cannot be given full weight because, as discussed above, the 13 factors that affect her credibility outweigh the factors that 14 bolster her credibility. 15 (AR 31). 16 17 A claimant initially must produce objective medical evidence 18 establishing a medical impairment reasonably likely to be the cause of 19 the subjective symptoms. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 20 21 1996); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). Once a claimant produces objective medical evidence of an underlying impairment that could reasonably be expected to produce the pain or other symptoms 22 alleged, and there is no evidence of malingering, the ALJ may reject the 23 claimant’s testimony regarding the severity of his pain and symptoms 24 only by articulating specific, clear and convincing reasons for doing 25 so. 26 Brown-Hunter v. Colvin, 798 F.3d 749, 755 (9th Cir. 2015)(citing Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)); see also Smolen v. Chater, supra; Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 27 1998); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). 28 11 1 Because the ALJ does not cite to any evidence in the record of 2 malingering, the “clear and convincing” standard stated above applies. 3 4 Here, the ALJ failed to provide clear and convincing reasons for his finding that Plaintiff’s testimony about the intensity, persistence 5 and limiting effects of the symptoms was not fully credible.5 6 7 First, the ALJ failed to “specifically identify ‘what testimony is 8 not credible and what evidence undermines [Plaintiff’s] complaints.’” 9 10 Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); see also Smolen v. Chater, supra, 80 F.3d at 1284 (“The ALJ must state specifically what symptom 11 testimony is not credible and what facts in the record lead to that 12 conclusion”). 13 14 15 Second, the ALJ’s discrediting of Plaintiff’s testimony because she “only needed continued prescriptions for her medications and did not need additional observations for much of her recent treatment history” 16 was improper. Although, as the ALJ noted, Plaintiff’s treatment records 17 reflect mostly continued prescriptions for medications, rather than 18 additional visits with physicians for her fibromyalgia (see AR 31, 19 citing AR 729-51, 754-60), there is no evidence that Plaintiff failed to 20 21 follow a course of treatment for her fibromayalgia, or that additional or more intensive treatments were recommended or available to treat her fibromaylgia. See Benecke v. Barnhart, 379 F.3d 587, 590 22 (“Fibromyalgia’s cause is unknown, there is no cure, and it is poorly 23 understood within much of the medical community.”); see also Lapeirre24 Gutt v. Astrue, 382 Fed.Appx. 662, 664 (9th Cir. 2010) (“A claimant 25 cannot be discredited for failing to pursue non-conservative treatment 26 27 28 5 The Court will not consider reasons for finding Plaintiff not fully credible (see Joint Stip. at 20) that were not given by the ALJ in the Decision. See Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001); SEC v. Chenery Corp., 332 US 194, 196 (1947). 12 1 options where none exist.”). Moreover, at the hearings, the ALJ did not 2 ask Plaintiff why she did not pursue additional or more intensive 3 treatments for her fibromyalgia. 4 Third, the ALJ’s discrediting of Plaintiff’s testimony because her 5 symptoms apparently improved based on her use of a Jacuzzi (see AR 31, 6 citing AR 754 [Treatment record dated December 14, 2012, noting that 7 “Relieving factors tried including jacuzzi helps”)] was also improper. 8 That treatment record (which was discussing Plaintiff’s neck pain) did 9 10 not state that the use of a Jacuzzi completely alleviated Plaintiff’s symptoms. Indeed, that same treatment record (immediately prior to the notation about Plaintiff’s use of a Jacuzzi) notes: “The problem is 11 severe. The problem has worsened. The frequency of pain is constant. 12 Location of pain is bilateral shoulder. The patient describes the pain 13 as sharp and shooting.” (AR 754). Moreover, other treatment records do 14 not reflect improvement in Plaintiff’s condition. 15 (See e.g., AR 740 [Treatment note dated May 24, 2011, noting that Plaintiff had suffered a flare up of fibromyalgia]), AR 426-27 [Treatment records dated 16 September 11, 2008, noting that Plaintiff had not gotten any improvement 17 from prior epidurals], and AR 388 [Treatment record dated September 22, 18 2008, noting that Plaintiff’s neck and arm pain persisted after a 19 steroid injection]). 20 21 22 B. Remand Is Warranted The decision whether to remand for further proceedings or order an 23 immediate award of benefits is within the district court’s discretion. 24 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no 25 useful purpose would be served by further administrative proceedings, or 26 where the record has been fully developed, it is appropriate to exercise 27 this discretion to direct an immediate award of benefits. Id. at 1179 (“[T]he decision of whether to remand for further proceedings turns upon 28 the likely utility of such proceedings.”). However, where, as here, the 13 1 circumstances of the case suggest that further administrative review 2 could remedy the Commissioner’s errors, remand is appropriate. McLeod 3 v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); Harman v. Apfel, supra, 4 5 211 F.3d at 1179-81. Since the ALJ failed to properly assess Plaintiff’s credibility, 6 remand is appropriate. Because outstanding issues must be resolved 7 before a determination of disability can be made, and “when the record 8 as a whole creates serious doubt as to whether the [Plaintiff] is, in 9 10 fact, disabled within the meaning of the Social Security Act,” further administrative proceedings would serve a useful purpose and remedy defects. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 11 2014)(citations omitted).6 12 13 ORDER 14 15 16 For the foregoing reasons, 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). 17 18 LET JUDGMENT BE ENTERED ACCORDINGLY. 19 20 DATED: October 16, 2015. 21 /s/ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 6 The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. “[E]valuation of the record as a whole creates serious doubt that Plaintiff is in fact disabled.” See Garrison v. Colvin, 759 F.3d 995, 1021 (2014). Accordingly, the Court declines to rule on Plaintiff’s claim regarding the ALJ’s alleged failure to properly determine whether Plaintiff could perform other jobs (see Joint Stip. at 4-13, 16-18). Because this matter is being remanded for further consideration, this issue should also be considered on remand. 14
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