Rosemary Davis v. Carolyn W. Colvin

Filing 16

MEMORANDUM AND OPINION by Magistrate Judge Victor B. Kenton re: This Memorandum Opinion will constitute the Courts findings of fact and conclusions of law. After reviewing the matter, the Court concludes that for the reasons set forth, the decision of the Commissioner must be reversed and the matter remanded for further hearing consistent with this Memorandum Opinion.. (rh)

Download PDF
1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 ROSEMARY DAVIS, o.b.o JAMIE DAVIS, 12 Plaintiff, 13 v. 14 15 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 Defendant. 17 ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. CV 13-06776-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 18 19 This matter is before the Court for review of the decision by the 20 Commissioner of Social Security denying Plaintiff’s application for 21 disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have 22 consented that the case may be handled by the Magistrate Judge. The 23 action arises under 42 U.S.C. §405(g), which authorizes the Court to 24 enter judgment upon the pleadings and transcript of the Administrative 25 Record (“AR”) before the Commissioner. The parties have filed the 26 Joint Stipulation (“JS”), and the Commissioner has filed the certified 27 AR. 28 1 Plaintiff raises the following issues: 2 1. Whether the Administrative Law Judge (“ALJ”) properly 3 considered the opinions of Dr. Lindsay Reder, M.D. about 4 Plaintiff’s disability beginning in March 2011; 5 2. Whether the ALJ properly considered Plaintiff’s credibility; 6 7 and 3. Whether 8 9 the ALJ properly considered the testimony of Plaintiff’s wife. (JS at 3.) 10 11 This Memorandum Opinion will constitute the Court’s findings of 12 fact and conclusions of law. After reviewing the matter, the Court 13 concludes 14 Commissioner must be reversed and the matter remanded. that for the reasons set forth, the decision of the 15 16 I 17 THE ALJ PROPERLY CONSIDERED THE OPINIONS OF DR. LINDSAY REDER 18 Shortly after the issuance of an unfavorable hearing Decision, 19 Plaintiff died, and his widow, Rosemary Davis, was substituted as 20 Plaintiff on his behalf. (AR 7-8.) As suggested by the parties, the 21 Court will reference Jamie Davis, the decedent, as Plaintiff. 22 In his Decision (AR 14-25), the ALJ determined that at Step Two 23 of the sequential evaluation process, Plaintiff has the following 24 severe 25 chemotherapy and radiation; hypertension; hypothyroidism; chronic 26 Hepatitis B and C infection; obesity; anxiety disorder NOS; borderline 27 intellectual functioning; and a personality disorder with anti-social 28 traits. (AR 16.) impairments: cancer of the 2 supraglottis, status post- 1 Plaintiff has a long treatment history, which the ALJ summarized 2 (AR 20-22), and which Plaintiff’s counsel has exhaustively discussed 3 in her portion of the JS. 4 After reviewing the evidence, and conducting a hearing, at which 5 testimony was taken from Plaintiff (who was represented by counsel), 6 his wife, and a vocational expert (“VE”), the ALJ assessed a residual 7 functional capacity (“RFC”) of light work, avoidance of extreme cold 8 and heat, fumes, odors, dust, gasses, and poor ventilation, and an 9 ability to perform simple work. (AR 19.) 10 Plaintiff was first seen by Dr. Reder at LAC-USC on July 17, 11 2011. (AR 504.) He visited Dr. Reder again on October 4, 2011 (AR 509- 12 511); October 18, 2011 (AR 512); and November 9, 2011 (AR 515-517). 13 Dr. Reder prepared a report of this examination which contained the 14 following statement: 15 “Disability March 2011 - March 2013. Patient cannot be 16 exposed to dust, chemicals, or strenuous activity, his 17 breathing limits his ability to walk long distances.” 18 (AR 517.) 19 20 It is the above statement of Dr. Reder which is the focus of 21 Plaintiff’s first issue. Plaintiff asserts that the ALJ erred in his 22 assessment of Dr. Reder’s opinion, in particular, the ALJ’s statement 23 in the Decision that, 24 “To the extent it [Dr. Reder’s opinion] is consistent 25 with the assessments of the consultative internist and State 26 Agency medical consultant, I accept the doctor assessment. 27 To the extent it can be interpreted as inconsistent I give 28 it less weight because the doctor does not quantify the 3 1 2 limitation on walking.” (AR 22.) 3 4 Plaintiff makes several vigorous arguments concerning this issue. 5 First, he asserts that because his condition had deteriorated after he 6 received a consultative examination (“CE”) from Dr. Rodriguez on 7 September 28, 2010, and after the State Agency Physician reviewed 8 records, and further, because neither of these doctors had the benefit 9 of Dr. Reder’s examinations and conclusions, that Dr. Reder 10 essentially provided an uncontradicted opinion which can only be 11 rejected, according to law, for “clear and convincing” reasons. As a 12 secondary argument, Plaintiff states that even if Dr. Reder’s opinion 13 is viewed as conflicting with the opinions of these other doctors, one 14 of which is based on independent examination, still, there is an 15 absence of “specific and legitimate” reasons in the Decision to reject 16 Dr. Reder’s conclusion. Finally, Plaintiff argues that the ALJ was 17 obligated to contact Dr. Reder, or do some further development of the 18 record consistent with regulations, in a situation such as this, where 19 there is, assertedly, insufficient and/or inconsistent evidence. 20 A careful review of the record, however, does not support 21 Plaintiff’s interpretation. Certainly, the ALJ was aware that there 22 had been some deterioration as to aspects of Plaintiff’s physical 23 condition. For example, in the Decision, the ALJ noted that, “Given 24 the longitudinal notes, it appears that the [Plaintiff’s] throat pain, 25 while occurring since chemotherapy and radiation, has intensified only 26 recently.” (AR 20.) 27 The Court finds it significant that at the hearing, the ALJ 28 specifically incorporated Dr. Reder’s statement into questions posed 4 1 to the VE. In particular, with regard to Dr. Reder’s assertion that 2 Plaintiff’s breathing limited his ability to walk long distances, the 3 VE interpreted that as permitting an ability to walk for only two 4 hours out of an eight-hour workday. Given that limitation, the VE 5 eliminated 6 cafeteria attendant, but noted that the other two jobs, described as 7 production assembler and cashier II, are “stationary,” and can be 8 performed by Plaintiff. (AR 63.) one of the alternate jobs identified at Step Five, 9 Plaintiff challenges this testimony, and the conclusions reached 10 by the ALJ, based on his interpretation that Dr. Reder’s preclusion of 11 “strenuous activity” likewise would preclude Plaintiff from jobs which 12 require light exertion. Plaintiff argues that “strenuous activity 13 involves more than walking ...” (AR 17.) Plaintiff also asserts that 14 “Light exertional activity does not permit mere standing without 15 exertion.” (JS at 17, citing, generally, SSR 83-10.) SSR 83-10 does 16 not, effectively, stand for the proposition proposed by Plaintiff. In 17 describing “light” work, this Regulation states, in pertinent part, 18 the following: 19 “A job is also in this category when it involves 20 sitting most of the time but with some pushing and pulling 21 of arm-hand or leg-foot controls, which require greater 22 exertion than in sedentary work ... Relatively few unskilled 23 light jobs are performed in a seated position.” 24 25 Thus, the Court does not view Plaintiff’s interpretation of the 26 meaning of light work in relationship to requirements of “strenuous” 27 activity as precluding Plaintiff from having an RFC which permits 28 light work, and certainly, in this litigation, the Court must only 5 1 determine whether the ALJ’s conclusion is supported by substantial 2 evidence or if it is based on legal error. See Flaten v. Secretary of 3 Health & Human Services, 44 F.3d 1453, 1457 (9th Cir. 1995). 4 5 For the foregoing reasons, the Court does not assess error with regard to the ALJ’s assessment of the opinions of Dr. Reder. 6 7 II 8 THE ALJ DID NOT PROPERLY ASSESS PLAINTIFF’S CREDIBILITY 9 AS TO SUBJECTIVE SYMPTOMS 10 The ALJ depreciated Plaintiff’s credibility with regard to 11 subjective symptoms (and to any limitations beyond those set forth in 12 the determined RFC), based on their being unsupported by the objective 13 evidence of record; that the medical evidence of record demonstrated 14 an improvement in his condition along with numerous rejections by 15 Plaintiff of recommended treatment; Plaintiff’s work history; and his 16 status as a convicted criminal. (AR 19-21.) For the following reasons, 17 the Court agrees with Plaintiff that the ALJ improperly depreciated 18 his credibility based on evidence in the record. 19 The law is clear that an ALJ must provide “specific, clear and 20 convincing” reasons to reject excess pain and symptom testimony. See 21 Taylor v. Astrue, 659 F.3d 1228, 1234 (9th Cir. 2011). 22 The first stated reason (AR 19) is that the “objective evidence” 23 was found to be consistent with 24 Plaintiff’s allegations “that he is unable to perform any work 25 activity.” As Plaintiff correctly points out, that is the wrong 26 standard. It is not a comparison of whether a claimant’s description 27 of pain and symptoms is consistent with an inability to perform any 28 work activity, but whether work activities are limited based on such 6 the RFC but inconsistent with 1 symptoms. In addition, much of the “objective evidence” cited by the 2 ALJ went back to periods of time before August 6, 2010, the relevant 3 commencement period for SSI benefits. (See AR at 19.) At the time of 4 the February 2012 hearing before the ALJ, Plaintiff was awaiting 5 surgery to provide relief for his breathing. He spent most of his time 6 in bed. (AR 58.) It is correct, as the ALJ observed, that Plaintiff 7 had previously informed his physicians that he felt sufficiently well 8 to forego surgery; however, that was not the case at the time of the 9 hearing. Certainly, there is no dispute in the record that Plaintiff’s 10 physicians had recommended surgery for his breathing problems. The 11 fact that Plaintiff had declined surgery does not seem to be a factor 12 that impacts on his credibility, but only his resistance to surgery. 13 That might not be surprising in view of the fact that in January 2008, 14 while Plaintiff was undergoing a biopsy of a throat lesion which later 15 proved to be cancerous, the lesion ruptured, Plaintiff lost his 16 ability to breathe, and an emergency tracheotomy was performed. (AR 17 282, 284, 294.) This might be viewed as a sufficient basis for an 18 individual to be “gun shy” of further surgery in the same area of his 19 body. The Court will further agree with Plaintiff that his previous 20 unwillingness to undergo surgery, despite substantial evidence of 21 ongoing problems and pain, does not detract from his credibility. It 22 is not as if Plaintiff did not seek treatment; indeed, there is 23 evidence in the record of numerous instances in which Plaintiff sought 24 emergency room care for throat pain (see, e.g., March 10, 2011, at AR 25 543-552, 555-556); reported pain level between 5/10 and 10/10 (AR 26 549); was diagnosed with difficulty swallowing (AR 550); was given 27 narcotic medication for severe pain (AR 546, 550); was found to have 28 “rough” speech with increased throat pain (AR 553); was determined to 7 1 have only part of his airway open (AR 495-496); was prescribed 2 morphine sulfate for pain, and sought refills (AR 488-493); visited 3 the emergency room to get refills of Vicodin and morphine for pain (AR 4 560-561, 5 finally, was seen on several occasions in 2011 by Dr. Reder, who 6 recommended surgery for these issues. 7 570-573); reported difficulty swallowing (AR 574); and The ALJ also depreciated Plaintiff’s credibility because of his 8 determination that 9 inconsistent with his pain allegations. (AR 21). The Court finds this 10 statement to be somewhat baffling, in view of the record of treatment 11 which 12 Plaintiff’s condition “appears managed with conservative care.” In the 13 Court’s view, the record does not substantiate that conclusion at all. 14 Furthermore, the ALJ relied upon a typed report to conclude that 15 Plaintiff’s medications do not cause side effects. (AR 21, citing 16 Disability Report - Appeals, at AR 269.) This conclusion, however, was 17 provided without any acknowledgment of extensive testimony provided by 18 Plaintiff at the hearing that his medications may cause him to fall 19 asleep. (AR 47, 49. “The morphine just puts me to sleep.”) Plaintiff Plaintiff’s has received. “overall Indeed, treatment the ALJ history” concluded was that 20 The next stated reason was that Plaintiff’s “reported daily 21 activities are inconsistent with his alleged degree of impairment.” 22 (AR 21.) In this regard, the ALJ cited statements from Plaintiff and 23 his wife for the conclusion “that he was generally able to tend to his 24 personal care needs and get along with others, including authority 25 figures ... He is also able to handle money, stress and changes in 26 routine.” (Id.) Most of these reasons pertain to mental issues, not 27 physical 28 activities provides no apparent support for the ALJ’s conclusion. It ones. Further, Plaintiff’s 8 own report about his daily 1 is worthwhile to quote what Plaintiff himself wrote in his Function 2 Report: 3 “I get up take my breathing treatment wash up eat 4 breakfast lay back down watch TV, take another breathing 5 treatment have lunch lay back down get up a 3:00 oclock 6 [sic] sit outside for one hour Take another breathing 7 treatment eat dinner watch TV till eight oclock [sic] put on 8 my CPAP - machine for sleeping.” 9 (AR 219) 10 11 The report of Plaintiff’s wife, similarly, describes severe 12 limitations in Plaintiff’s activities of daily living (“ADL”). (AR 13 241-242.) With regard even to feeding himself, Plaintiff testified 14 that his wife puts the food in a blender, and he consumes it through 15 a straw, which he admitted that he can hold. (AR 48-49.) 16 All in all, the Court rejects any reliance upon the evidence in 17 the record as to Plaintiff’s ADL as a supportable basis to depreciate 18 his credibility. 19 Finally, the ALJ’s observation that Plaintiff’s credibility is 20 depreciated because he has a criminal record “showing a disregard to 21 societal norms” does not merit substantial discussion, because it is 22 not supportable. (See AR 21, citing AR 457.) The only fact the ALJ 23 relied on was that Plaintiff went to prison in 2007 and was released 24 in 2011. (Id.) If the ALJ’s basis for credibility assessment was to be 25 generally accepted, then any person who has a status as a convicted 26 criminal, or spent time in prison, would be viewed as not credible, 27 per se. The Court need not delve further into the issue, but will 28 observe that there is absolutely nothing in this record to indicate 9 1 that Plaintiff was convicted a crime of moral turpitude, which might, 2 under 3 credibility. (See case citations at JS 34.) Based on this record, 4 however, it was not a supportable reason for depreciating Plaintiff’s 5 credibility. certain circumstances, form a basis for depreciation of 6 Based on the foregoing, the Court concludes that this matter must 7 be remanded for a reassessment of Plaintiff’s credibility as to 8 subjective symptoms. Further, while the parties have not briefed the 9 third issue, concerning the ALJ’s depreciation or rejection of the 10 information provided by Plaintiff’s wife, that discussion was subsumed 11 within the second issue, and the Court does not consider that it was 12 abandoned 13 Plaintiff’s wife will be considered, along with all evidence in the 14 record, in the reevaluation of Plaintiff’s credibility as it may 15 impact on his RFC. 16 17 18 in this litigation. On remand, evidence provided For the foregoing reasons, this matter will be remanded for further hearing consistent with this Memorandum Opinion. IT IS SO ORDERED. 19 20 21 by DATED: March 24, 2014 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 10

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?