Elsa J. Diez v. Commissioner of Social Security Administration, No. 8:2017cv02183 - Document 26 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Autumn D. Spaeth. ORDER the decision of the Social Security Commissioner is REVERSED and the action is REMANDED. (et)
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Elsa J. Diez v. Commissioner of Social Security Administration Doc. 26 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ELSA D., an Individual, 12 Plaintiff, 13 v. Case No.: 8:17-0 2183 ADS MEMORANDUM OPINION AND ORDER 14 SAUL1, ANDREW M. Social Security, Com m issioner of 15 Defendant. 16 17 18 I. IN TROD U CTION Plaintiff Elsa D.2 (“Plaintiff”) challenges the Defendant, Andrew M. Saul 19 20 21 22 23 24 1 Andrew Saul is now the Com m issioner of Social Security and is autom atically substituted as a party pursuant to Fed. R. Civ. P. 25(d). See also section 20 5(g) of the Social Security Act, 42 U.S.C. § 40 5(g) (action survives regardless of any change in the person occupying the office of Com m issioner of Social Security). 2 Plaintiff’s nam e has been partially redacted in com pliance with Fed. R. Civ. P. 5.2(c)(2)(B) and the recom m endation of the Com m ittee on Court Adm inistration and Case Managem ent of the J udicial Conference of the United States. -1Dockets.Justia.com 1 , Com m issioner of Social Security’s (hereinafter “Com m issioner” or “Defendant”) denial 2 of her application for a period of disability and disability insurance benefits (“DIB”) and 3 supplem ental security incom e (“SSI”). The parties filed consents to proceed before the 4 undersigned United States Magistrate J udge [Docket “Dkt.” Nos. 7, 13] and briefs 5 addressing disputed issues in the case [Dkt. No. 18 (“Pltf.’s Br.”), Dkt. No. 20 (“Def.’s 6 Br.”), and Dkt. No. 21 (“Pltf.’s Reply”)]. The Court has taken the parties’ briefing under 7 subm ission without oral argum ent. For the reasons stated below, the decision of the 8 Com m issioner is reversed and the case is rem anded. 9 II. PROCEED IN GS BELOW Plaintiff filed applications for DIB under Title II and SSI under Title XVI on April 10 11 29, 20 14, alleging disability beginning J anuary 6, 20 11. (Adm inistrative Record (“AR”) 12 16; 398-40 8). Plaintiff’s applications were denied initially on J uly 23, 20 14 (AR 261- 13 69), and upon reconsideration on October 29, 20 14 (AR 271-82). A hearing was held 14 before Adm inistrative Law J udge (“ALJ ”) Alan J . Markiewicz on Novem ber 8, 20 16. 15 (AR 333-58). On March 15, 20 17, the ALJ found that Plaintiff had not been under a disability, 16 17 pursuant to the Social Security Act 3 , since J anuary 6, 20 11.4 (AR 13-37). The ALJ ’s 18 19 20 21 22 23 24 3 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or m ental im pairm ent expected to result in death, or which has lasted or is expected to last for a continuous period of at least 12 m onths. 42 U.S.C. §423(d)(1)(A). 4 The ALJ dism issed Plaintiff’s DIB claim because there was a prior determ ination that she was not disabled as of March 21, 20 13, that involved the sam e parties, law, facts and issues as under her current applications. (AR 16). The ALJ found that the prior determ ination was final and therefore because the date of Plaintiff’s previous determ ination was after the date last insured, Plaintiff’s claim for DIB under Title II was dism issed. (Id.) Plaintiff does not raise any claim of error as to this finding. Thus, the relevant period for the ALJ to adjudicate was from April 29, 20 14, the application date, through March 15, 20 17, the date of the ALJ ’s decision. (AR 16, 19). -2- 1 decision becam e the Com m issioner’s final decision when the Appeals Council denied 2 Plaintiff’s request for review on October 20 , 20 17. (AR 1-7). Plaintiff then filed this 3 action in District Court on Decem ber 14, 20 17, challenging the ALJ ’s decision. [Dkt. No. 4 1]. In the ALJ ’s decision of March 15, 20 17 (AR 13-37), the ALJ followed the required 5 6 five-step sequential evaluation process to assess whether Plaintiff was disabled under 7 the Social Security Act.5 20 C.F.R. § 40 4.1520 (a)(4). At s te p o n e , the ALJ found that 8 Plaintiff did not engage in substantial gainful activity since April 29, 20 14, the 9 application date. (AR 19). At s te p tw o , the ALJ found that Plaintiff had the following 10 severe im pairm ents: disc disease of the cervical, thoracic spine, and lum bar spine; 11 diabetes; and m ajor depressive disorder. (AR 19). At s te p th re e , the ALJ found that 12 Plaintiff “does not have an im pairm ent or com bination of im pairm ents that m eets or 13 m edically equals the severity of one of the listed im pairm ents in 20 CFR Part 40 4, 14 Subpart P, Appendix 1.” (AR 20 ). 15 16 17 18 19 20 21 22 23 24 5 The ALJ follows a five-step sequential evaluation process to assess whether a claim ant is disabled: Step one: Is the claim ant engaging in substantial gainful activity? If so, the claim ant is found not disabled. If not, proceed to step two. Step two: Does the claim ant have a “severe” im pairm ent? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claim ant’s im pairm ent or com bination of im pairm ents m eet or equal an im pairm ent listed in 20 C.F.R., Pt. 40 4, Subpt. P, App. 1? If so, the claim ant is autom atically determ ined disabled. If not, proceed to step four. Step four: Is the claim ant capable of perform ing his past work? If so, the claim ant is not disabled. If not, proceed to step five. Step five: Does the claim ant have the residual functional capacity to perform any other work? If so, claim ant is not disabled. If not, the claim ant is disabled. Lester v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir. 1995) (citing 20 C.F.R. §40 4.1520 ). -3- The ALJ then found that Plaintiff had the following Residual Functional 1 2 Capacity6 (“RFC”): [P]erform light work as defined in 20 CFR 416.967(b) except: the claim ant can lift and/ or carry twenty pounds occasionally, ten pounds frequently; the claim ant can stand and walk for six hours out of an eight-hour workday; the claim ant can sit for six hours out of an eight-hour workday; the claim ant cannot clim b ladders, ropes or scaffolds; the claim ant can occasionally clim b ram ps and stairs, balance, stoop, kneel, crouch or crawl; the claim ant is lim ited to work involving sim ple repetitive tasks; and the claim ant can have no m ore than occasional contact with coworkers and the public. 3 4 5 6 7 8 (AR 21). At s te p fo u r, based on Plaintiff’s RFC and the vocational expert’s testim ony, the 9 10 ALJ found that Plaintiff was unable to perform any past relevant work. (AR 27). At s te p five , the ALJ found that, “[c]onsidering the claim ant’s age, education, 11 12 work experience and residual functional capacity, there are jobs that exist in significant 13 num bers in the national econom y that the claim ant can perform .” (AR 28). The ALJ 14 accepted the vocational expert’s testim ony that claim ant, given her age, education, work 15 experience, and residual functional capacity, would be able to perform the requirem ents 16 of representative occupations such as: Sm all parts assem bler (DOT 70 6.684-0 22); Shoe 17 packager (DOT 920 .687-166); and Laundry sorter (DOT 361.687-0 14). (AR 28). As 18 such, the ALJ found that Plaintiff was “not disabled”, as defined in the Social Security 19 Act, at any tim e from April 29, 20 14, through the date of the ALJ ’s decision. (AR 29). 20 21 22 23 24 6 A Residual Functional Capacity is what a claim ant can still do despite existing exertional and nonexertional lim itations. See 20 C.F.R. §§ 40 4.1545(a)(1), 416.945(1)(1). -4- 1 2 III. STAN D ARD OF REVIEW Under 42 U.S.C. §40 5(g), a district court m ay review the Com m issioner’s decision 3 to deny benefits. A court m ust affirm an ALJ ’s findings of fact if they are supported by 4 substantial evidence and if the proper legal standards were applied. Mayes v. 5 Massanari, 276 F.3d 453, 458-59 (9th Cir. 20 0 1). “Substantial evidence” m eans m ore 6 than a m ere scintilla, but less than a preponderance; it is such relevant evidence as a 7 reasonable person m ight accept as adequate to support a conclusion.” Lingenfelter v. 8 Astrue, 50 4 F.3d 10 28, 10 35 (9th Cir. 20 0 7) (citing Robbins v. Soc. Sec. Adm in., 466 9 F.3d 880 , 882 (9th Cir. 20 0 6)). An ALJ can satisfy the substantial evidence 10 requirem ent “by setting out a detailed and thorough sum m ary of the facts and 11 conflicting clinical evidence, stating his interpretation thereof, and m aking findings.” 12 Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation om itted). 13 “[T]he Com m issioner’s decision cannot be affirm ed sim ply by isolating a specific 14 quantum of supporting evidence. Rather, a court m ust consider the record as a whole, 15 weighing both evidence that supports and evidence that detracts from the Secretary’s 16 conclusion.” Aukland v. Massanari, 257 F.3d 10 33, 10 35 (9th Cir. 20 0 1) (citations and 17 internal quotation m arks om itted). “’Where evidence is susceptible to m ore than one 18 rational interpretation,’ the ALJ ’s decision should be upheld.” Ryan v. Com m ’r of Soc. 19 Sec., 528 F.3d 1194, 1198 (9th Cir. 20 0 8) (citing Burch v. Barnhart, 40 0 F.3d 676, 679 20 (9th Cir. 20 0 5)); see Robbins, 466 F.3d at 882 (“If the evidence can support either 21 affirm ing or reversing the ALJ ’s conclusion, we m ay not substitute our judgm ent for that 22 of the ALJ .”). The Court m ay review only “the reasons provided by the ALJ in the 23 disability determ ination and m ay not affirm the ALJ on a ground upon which he did not 24 -5- 1 rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 20 0 7) (citing Connett v. Barnhart, 340 2 F.3d 871, 874 (9th Cir. 20 0 3)). 3 IV. D ISCU SSION 4 Plaintiff raises two issues for review: whether the ALJ com m itted legal error in 5 not adequately assessing Plaintiff’s testim on y regarding her pain and lim itations (i.e., 6 Plaintiff com plains the ALJ did not find her testim ony to be credible); and whether the 7 ALJ failed to properly consider the reporting of the treating physician, Dr. Shah. [Dkt. 8 18, Pltf.’s Br. 1 and 8]. 9 10 11 12 A. Th e ALJ Faile d to Pro p e rly As s e s s Plain tiff’s Te s tim o n y Plaintiff first contends that the ALJ com m itted legal error in not adequately assessing her testim ony regarding her pain and lim itations. A claim ant carries the burden of producing objective m edical evidence of his or 13 her im pairm ents and showing that the im pairm ents could reasonably be expected to 14 produce som e degree of the alleged sym ptom s. Benton ex rel. Benton v. Barnhart, 331 15 F.3d 10 30 , 10 40 (9th Cir. 20 0 3). But once the claim ant m eets that burden, m edical 16 findings are not required to support the alleged severity of pain. Bunnell v. Sullivan, 17 947 F.2d 341, 345 (9th Cir. 1991) (en banc); see also Light v. Soc. Sec. Adm in., 119 F.3d 18 789, 792 (9th Cir. 1997) (“claim ant need not present clinical or diagnostic evidence to 19 support the severity of his pain”) (citation omitted)). 20 Instead, once a claim ant has m et the burden of producing objective m edical 21 evidence, an ALJ can reject the claim ant’s subjective com plaint “only upon (1) finding 22 evidence of m alingering, or (2) expressing clear and convincing reasons for doing so.” 23 Benton, 331 F.3d at 10 40 . The ALJ m ay consider at least the following factors when 24 weighing the claim ant’s credibility: (1) his or her reputation for truthfulness; -6- 1 (2) inconsistencies either in the claim ant’s testim ony or between the claim ant’s 2 testim ony and his or her conduct; (3) his or her daily activities; (4) his or her work 3 record; and (5) testim ony from physicians and third parties concerning the nature, 4 severity, and effect of the sym ptom s of which she com plains. Thom as v. Barnhart, 278 5 F.3d 15 947, 958-59 (9th Cir. 20 0 2) (citing Light, 119 F.3d at 792). “If the ALJ ’s 6 credibility finding is supported by substantial evidence in the record, [the court] m ay 7 not engage in second-guessing.” Id. at 959 (citing Morgan v. Apfel, 169 F.3d 595, 60 0 8 (9th Cir. 1999)). 9 Here, nowhere in his opinion does the ALJ address evidence of m alingering. 10 Thus, in rejecting Plaintiff’s credibility, the ALJ was required to articulate clear and 11 convincing reasons. See Benton, 331 F.3d at 10 40 . The ALJ clearly identifies two bases 12 for discounting Plaintiff’s testim ony: Plaintiff’s reported daily activities and that Plaintiff 13 was not receiving the m edical treatm ent one would expect a disabled person to receive. 14 The ALJ ’s decision describes the reasons for discrediting Plaintiff’s testim ony regarding 15 her pain as follows: 16 17 18 19 20 21 22 23 Although the claim ant’s activities of daily living were som ewhat lim ited, som e of … these activities are the sam e as those necessary for obtaining and m aintaining employm ent and are inconsistent with the presence of an incapacitating or debilitating condition. The claim ant indicated she perform ed personal groom ing activities, perform ed som e household chores, prepared sim ple m eals, drove a vehicle and went places alone (Testim ony and Ex. 16F). Her ability to participate in such activities underm ines her allegations of disabling functional lim itations. The claim ant has not generally received the type of m edical treatm ent one would expect for a totally disabled individual. … These findings are inconsistent with the alleged severity of her sym ptom s and functional lim itations. After careful consideration of the evidence, the undersigned finds that the claim ant’s m edically determ inable im pairm ents could reasonably be expected to cause the alleged sym ptom s; however, the claim ant’s statem ents concerning the intensity, persistence and lim iting effects of 24 -7- 1 these sym ptom s are not entirely consistent with the m edical evidence and other evidence in the record for the reasons explained in this decision. 2 3 (AR 22-23). Having carefully reviewed the record, the Court finds that the ALJ failed 4 to provide sufficient clear and convincing reasons for discounting Plaintiff’s subjective 5 com plaints. 6 7 1. Conservative Treatm ent The ALJ stated that Plaintiff “has not generally received the type of m edical 8 treatm ent one would expect from a totally disabled individual” (AR 23) and, upon 9 further detailed review of the m edical evidence, the ALJ noted that the Plaintiff’s 10 treatm ent records reveal “grossly conservative m edical treatm ent since the application 11 date.” (AR 26). The ALJ , however, only provided these conclusory statem ents as to the 12 treatm ent Plaintiff received and failed to explain how the treatm ent received is “grossly 13 conservative” or what type of m edical treatment one would expect to receive from a 14 totally disabled individual. The ALJ failed to m eet his requirem ent of expressing clear 15 and convincing reasons for discounting Plaintiff’s testim ony on this basis. 16 2. Daily Activities 17 The ALJ also found that Plaintiff’s activities underm ine her testim ony. The ALJ , 18 however, once again only m ade a conclusory statem ent that the m inim al activities listed 19 underm ine Plaintiff’s allegations of disabling functional lim itations. (AR 22-23). The 20 Ninth Circuit has noted, “[a]s this Court previously has explained, if a claim ant engages 21 in num erous daily activities involving skills that could be transferred to the workplace, 22 the ALJ m ay discredit the claim ant’s allegations upon m aking specific findings relating 23 to those activities.” Burch v. Barnhart, 40 0 F.3d 676, 681 (9th Cir. 20 0 5) (emphasis 24 added). Here, the ALJ m ade no such specific findings. Moreover, daily activities -8- 1 specifically identified by the ALJ , “personal groom ing activities, perform ed som e 2 household chores, prepared sim ple m eals, drove a vehicle and went places alone”, do 3 not provide a clear and convincing reason for discrediting Plaintiff’s testim ony. 3. 4 Lack of Objective Medical Evidence 5 Although not clearly or specifically stated, the ALJ m ay have also relied on the 6 objective m edical evidence as a third basis for discrediting Plaintiff’s testim ony. The 7 ALJ sum m arizes records that m ay conflict with Plaintiff’s testim ony but fails to explain 8 the contradictions. In addition, Plaintiff contends there is objective evidence in the 9 record that supports at least som e of Plaintiff’s alleged sym ptom s. Again, the ALJ fails 10 to provide a reason why those records should not be credited to supporting Plaintiff’s 11 testim ony. 12 As the ALJ failed to articulate clear, convincing and specific reasons for 13 discounting Plaintiff’s pain and lim itations testim ony, the Court concludes that this 14 finding by the ALJ shall be reversed. The case is rem anded for a reassessm ent of 15 Plaintiff’s testim ony. 16 B. Th e ALJ Faile d to Pro p e rly Co n s id e r th e Re p o rtin g o f th e Tre atin g Ph ys ician , D r. Sh ah 17 18 Plaintiff’s second contention is that the ALJ failed to properly consider the 19 reporting of her treating physician, Dr. Nim ish Shah. This Court agrees. J ust as with 20 discounting of Plaintiff’s testim ony, the ALJ fails to provide “specific and legitim ate” 21 reasons that are supported by substantial evidence in the record for discounting the 22 opinion of Dr. Shah, a treating physician. Lester v. Chater, 81 F.3d 821, 830 -31 (9th Cir. 23 1995). 24 -9- 1 After sum m arizing Dr. Shah’s reports, the ALJ m erely asserts the conclusion, 2 “[t]he severity of functional lim itations assessed by Dr. Shara [sic] are disproportionate 3 to the m edical evidence in the [Plaintiff’s] file. The m ajority of the [Plaintiff’s] m edical 4 records docum ent the [Plaintiff’s] im pairm ents as m ild, including no loss of m otor 5 strength and only m oderately decreased range of m otions of the spine (citing AR 1171- 6 96, 1284-1354).” (AR 26). The ALJ did not m eet his burden of “setting out a detailed 7 and thorough sum m ary of the facts and conflicting clinical evidence stating his 8 interpretation thereof, and m aking findings.” Magallanes v. Bowen, 881 F.2d 747, 751 9 (9 th Cir. 1989) (citation om itted); see also Tom m asetti v. Astrue, 533 F.3d at 10 41 10 (finding ALJ had properly disregarded a treating physician’s opinion by setting forth 11 specific and legitim ate reasons for rejecting the physician’s opinion that were supported 12 by the entire record). 13 Sum m arizing m edical records is not the sam e as m aking findings and stating 14 interpretations. A conclusion m ust com e after the analysis, not replace it. Nowhere in 15 his decision does the ALJ succinctly provide specific and legitim ate reasons based on 16 substantial evidence for giving little weight to the treating physician’s opinion. The 17 conclusion, without m ore, is insufficient. As such, the Court reverses the ALJ ’s finding 18 that Dr. Shah’s report is entitled to little weight and rem ands for reassessm ent of the 19 appropriate weight consistent with this decision. 20 21 22 23 24 -10 - 1 2 3 V. ORD ER For the reasons stated above, the decision of the Social Security Com m issioner is REVERSED and the action is REMANDED. 4 5 DATE: October 17, 20 19 6 7 / s/ Autum n D. Spaeth THE HONORABLE AUTUMN D. SPAETH United States Magistrate J udge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 -11-
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