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)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

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ROSEMARY DAVIS, o.b.o
JAMIE DAVIS,

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Plaintiff,
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v.
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CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,

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Defendant.
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No. CV 13-06776-VBK
MEMORANDUM OPINION
AND ORDER
(Social Security Case)

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This matter is before the Court for review of the decision by the

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Commissioner of Social Security denying Plaintiff’s application for

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disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have

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consented that the case may be handled by the Magistrate Judge. The

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action arises under 42 U.S.C. §405(g), which authorizes the Court to

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enter judgment upon the pleadings and transcript of the Administrative

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Record (“AR”) before the Commissioner. The parties have filed the

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Joint Stipulation (“JS”), and the Commissioner has filed the certified

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AR.

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Plaintiff raises the following issues:

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1.

Whether

the Administrative Law Judge (“ALJ”) properly

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considered the opinions of Dr. Lindsay Reder, M.D. about

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Plaintiff’s disability beginning in March 2011;

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2.

Whether the ALJ properly considered Plaintiff’s credibility;

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and
3.

Whether

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the

ALJ

properly

considered

the

testimony

of

Plaintiff’s wife.
(JS at 3.)

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This Memorandum Opinion will constitute the Court’s findings of

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fact and conclusions of law. After reviewing the matter, the Court

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concludes

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Commissioner must be reversed and the matter remanded.

that

for

the

reasons

set

forth,

the

decision

of

the

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I

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THE ALJ PROPERLY CONSIDERED THE OPINIONS OF DR. LINDSAY REDER

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Shortly after the issuance of an unfavorable hearing Decision,

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Plaintiff died, and his widow, Rosemary Davis, was substituted as

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Plaintiff on his behalf. (AR 7-8.) As suggested by the parties, the

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Court will reference Jamie Davis, the decedent, as Plaintiff.

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In his Decision (AR 14-25), the ALJ determined that at Step Two

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of the sequential evaluation process, Plaintiff has the following

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severe

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chemotherapy and radiation; hypertension; hypothyroidism; chronic

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Hepatitis B and C infection; obesity; anxiety disorder NOS; borderline

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intellectual functioning; and a personality disorder with anti-social

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traits. (AR 16.)

impairments:

cancer

of

the

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supraglottis,

status

post-

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Plaintiff has a long treatment history, which the ALJ summarized

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(AR 20-22), and which Plaintiff’s counsel has exhaustively discussed

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in her portion of the JS.

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After reviewing the evidence, and conducting a hearing, at which

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testimony was taken from Plaintiff (who was represented by counsel),

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his wife, and a vocational expert (“VE”), the ALJ assessed a residual

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functional capacity (“RFC”) of light work, avoidance of extreme cold

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and heat, fumes, odors, dust, gasses, and poor ventilation, and an

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ability to perform simple work. (AR 19.)

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Plaintiff was first seen by Dr. Reder at LAC-USC on July 17,

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2011. (AR 504.) He visited Dr. Reder again on October 4, 2011 (AR 509-

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511); October 18, 2011 (AR 512); and November 9, 2011 (AR 515-517).

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Dr. Reder prepared a report of this examination which contained the

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following statement:

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“Disability March 2011 - March 2013. Patient cannot be

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exposed to dust, chemicals, or strenuous activity, his

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breathing limits his ability to walk long distances.”

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(AR 517.)

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It is the above statement of Dr. Reder which is the focus of

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Plaintiff’s first issue. Plaintiff asserts that the ALJ erred in his

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assessment of Dr. Reder’s opinion, in particular, the ALJ’s statement

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in the Decision that,

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“To the extent it [Dr. Reder’s opinion] is consistent

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with the assessments of the consultative internist and State

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Agency medical consultant, I accept the doctor assessment.

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To the extent it can be interpreted as inconsistent I give

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it less weight because the doctor does not quantify the
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limitation on walking.”
(AR 22.)

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Plaintiff makes several vigorous arguments concerning this issue.

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First, he asserts that because his condition had deteriorated after he

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received a consultative examination (“CE”) from Dr. Rodriguez on

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September 28, 2010, and after the State Agency Physician reviewed

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records, and further, because neither of these doctors had the benefit

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of

Dr.

Reder’s

examinations

and

conclusions,

that

Dr.

Reder

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essentially provided an uncontradicted opinion which can only be

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rejected, according to law, for “clear and convincing” reasons. As a

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secondary argument, Plaintiff states that even if Dr. Reder’s opinion

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is viewed as conflicting with the opinions of these other doctors, one

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of which is based on independent examination, still, there is an

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absence of “specific and legitimate” reasons in the Decision to reject

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Dr. Reder’s conclusion. Finally, Plaintiff argues that the ALJ was

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obligated to contact Dr. Reder, or do some further development of the

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record consistent with regulations, in a situation such as this, where

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there is, assertedly, insufficient and/or inconsistent evidence.

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A careful review of the record, however, does not support

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Plaintiff’s interpretation. Certainly, the ALJ was aware that there

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had been some deterioration as to aspects of Plaintiff’s physical

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condition. For example, in the Decision, the ALJ noted that, “Given

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the longitudinal notes, it appears that the [Plaintiff’s] throat pain,

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while occurring since chemotherapy and radiation, has intensified only

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recently.” (AR 20.)

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The Court finds it significant that at the hearing, the ALJ

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specifically incorporated Dr. Reder’s statement into questions posed
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to the VE. In particular, with regard to Dr. Reder’s assertion that

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Plaintiff’s breathing limited his ability to walk long distances, the

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VE interpreted that as permitting an ability to walk for only two

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hours out of an eight-hour workday. Given that limitation, the VE

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eliminated

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cafeteria attendant, but noted that the other two jobs, described as

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production assembler and cashier II, are “stationary,” and can be

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performed by Plaintiff. (AR 63.)

one

of

the

alternate

jobs

identified

at

Step

Five,

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Plaintiff challenges this testimony, and the conclusions reached

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by the ALJ, based on his interpretation that Dr. Reder’s preclusion of

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“strenuous activity” likewise would preclude Plaintiff from jobs which

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require light exertion. Plaintiff argues that “strenuous activity

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involves more than walking ...” (AR 17.) Plaintiff also asserts that

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“Light exertional activity does not permit mere standing without

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exertion.” (JS at 17, citing, generally, SSR 83-10.) SSR 83-10 does

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not, effectively, stand for the proposition proposed by Plaintiff. In

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describing “light” work, this Regulation states, in pertinent part,

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the following:

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“A job is also in this category when it involves

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sitting most of the time but with some pushing and pulling

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of arm-hand or leg-foot controls, which require greater

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exertion than in sedentary work ... Relatively few unskilled

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light jobs are performed in a seated position.”

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Thus, the Court does not view Plaintiff’s interpretation of the

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meaning of light work in relationship to requirements of “strenuous”

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activity as precluding Plaintiff from having an RFC which permits

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light work, and certainly, in this litigation, the Court must only
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determine whether the ALJ’s conclusion is supported by substantial

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evidence or if it is based on legal error. See Flaten v. Secretary of

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Health & Human Services, 44 F.3d 1453, 1457 (9th Cir. 1995).

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For the foregoing reasons, the Court does not assess error with
regard to the ALJ’s assessment of the opinions of Dr. Reder.

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II

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THE ALJ DID NOT PROPERLY ASSESS PLAINTIFF’S CREDIBILITY

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AS TO SUBJECTIVE SYMPTOMS

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The

ALJ

depreciated

Plaintiff’s

credibility

with

regard

to

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subjective symptoms (and to any limitations beyond those set forth in

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the determined RFC), based on their being unsupported by the objective

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evidence of record; that the medical evidence of record demonstrated

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an improvement in his condition along with numerous rejections by

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Plaintiff of recommended treatment; Plaintiff’s work history; and his

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status as a convicted criminal. (AR 19-21.) For the following reasons,

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the Court agrees with Plaintiff that the ALJ improperly depreciated

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his credibility based on evidence in the record.

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The law is clear that an ALJ must provide “specific, clear and

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convincing” reasons to reject excess pain and symptom testimony. See

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Taylor v. Astrue, 659 F.3d 1228, 1234 (9th Cir. 2011).

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The first stated reason (AR 19) is that the “objective evidence”

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was

found

to

be

consistent

with

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Plaintiff’s allegations “that he is unable to perform any work

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activity.” As Plaintiff correctly points out, that is the wrong

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standard. It is not a comparison of whether a claimant’s description

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of pain and symptoms is consistent with an inability to perform any

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work activity, but whether work activities are limited based on such
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the

RFC

but

inconsistent

with

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symptoms. In addition, much of the “objective evidence” cited by the

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ALJ went back to periods of time before August 6, 2010, the relevant

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commencement period for SSI benefits. (See AR at 19.) At the time of

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the February 2012 hearing before the ALJ, Plaintiff was awaiting

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surgery to provide relief for his breathing. He spent most of his time

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in bed. (AR 58.) It is correct, as the ALJ observed, that Plaintiff

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had previously informed his physicians that he felt sufficiently well

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to forego surgery; however, that was not the case at the time of the

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hearing. Certainly, there is no dispute in the record that Plaintiff’s

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physicians had recommended surgery for his breathing problems. The

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fact that Plaintiff had declined surgery does not seem to be a factor

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that impacts on his credibility, but only his resistance to surgery.

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That might not be surprising in view of the fact that in January 2008,

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while Plaintiff was undergoing a biopsy of a throat lesion which later

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proved to be cancerous, the lesion ruptured, Plaintiff lost his

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ability to breathe, and an emergency tracheotomy was performed. (AR

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282, 284, 294.) This might be viewed as a sufficient basis for an

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individual to be “gun shy” of further surgery in the same area of his

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body. The Court will further agree with Plaintiff that his previous

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unwillingness to undergo surgery, despite substantial evidence of

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ongoing problems and pain, does not detract from his credibility. It

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is not as if Plaintiff did not seek treatment; indeed, there is

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evidence in the record of numerous instances in which Plaintiff sought

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emergency room care for throat pain (see, e.g., March 10, 2011, at AR

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543-552, 555-556); reported pain level between 5/10 and 10/10 (AR

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549); was diagnosed with difficulty swallowing (AR 550); was given

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narcotic medication for severe pain (AR 546, 550); was found to have

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“rough” speech with increased throat pain (AR 553); was determined to
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have only part of his airway open (AR 495-496); was prescribed

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morphine sulfate for pain, and sought refills (AR 488-493); visited

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the emergency room to get refills of Vicodin and morphine for pain (AR

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560-561,

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finally, was seen on several occasions in 2011 by Dr. Reder, who

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recommended surgery for these issues.

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570-573);

reported

difficulty

swallowing

(AR

574);

and

The ALJ also depreciated Plaintiff’s credibility because of his

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determination

that

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inconsistent with his pain allegations. (AR 21). The Court finds this

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statement to be somewhat baffling, in view of the record of treatment

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which

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Plaintiff’s condition “appears managed with conservative care.” In the

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Court’s view, the record does not substantiate that conclusion at all.

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Furthermore, the ALJ relied upon a typed report to conclude that

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Plaintiff’s medications do not cause side effects. (AR 21, citing

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Disability Report - Appeals, at AR 269.) This conclusion, however, was

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provided without any acknowledgment of extensive testimony provided by

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Plaintiff at the hearing that his medications may cause him to fall

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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

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The next stated reason was that Plaintiff’s “reported daily

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activities are inconsistent with his alleged degree of impairment.”

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(AR 21.) In this regard, the ALJ cited statements from Plaintiff and

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his wife for the conclusion “that he was generally able to tend to his

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personal care needs and get along with others, including authority

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figures ... He is also able to handle money, stress and changes in

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routine.” (Id.) Most of these reasons pertain to mental issues, not

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physical

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activities provides no apparent support for the ALJ’s conclusion. It

ones.

Further,

Plaintiff’s

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own

report

about

his

daily

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is worthwhile to quote what Plaintiff himself wrote in his Function

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Report:

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“I get up take my breathing treatment wash up eat

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breakfast lay back down watch TV, take another breathing

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treatment have lunch lay back down get up a 3:00 oclock

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[sic] sit outside for one hour Take another breathing

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treatment eat dinner watch TV till eight oclock [sic] put on

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my CPAP - machine for sleeping.”

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(AR 219)

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The report of Plaintiff’s wife, similarly, describes severe

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limitations in Plaintiff’s activities of daily living (“ADL”). (AR

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241-242.) With regard even to feeding himself, Plaintiff testified

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that his wife puts the food in a blender, and he consumes it through

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a straw, which he admitted that he can hold. (AR 48-49.)

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All in all, the Court rejects any reliance upon the evidence in

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the record as to Plaintiff’s ADL as a supportable basis to depreciate

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his credibility.

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Finally, the ALJ’s observation that Plaintiff’s credibility is

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depreciated because he has a criminal record “showing a disregard to

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societal norms” does not merit substantial discussion, because it is

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not supportable. (See AR 21, citing AR 457.) The only fact the ALJ

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relied on was that Plaintiff went to prison in 2007 and was released

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in 2011. (Id.) If the ALJ’s basis for credibility assessment was to be

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generally accepted, then any person who has a status as a convicted

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criminal, or spent time in prison, would be viewed as not credible,

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per se. The Court need not delve further into the issue, but will

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observe that there is absolutely nothing in this record to indicate
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that Plaintiff was convicted a crime of moral turpitude, which might,

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under

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credibility. (See case citations at JS 34.) Based on this record,

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however, it was not a supportable reason for depreciating Plaintiff’s

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credibility.

certain

circumstances,

form

a

basis

for

depreciation

of

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Based on the foregoing, the Court concludes that this matter must

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be remanded for a reassessment of Plaintiff’s credibility as to

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subjective symptoms. Further, while the parties have not briefed the

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third issue, concerning the ALJ’s depreciation or rejection of the

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information provided by Plaintiff’s wife, that discussion was subsumed

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within the second issue, and the Court does not consider that it was

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abandoned

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Plaintiff’s wife will be considered, along with all evidence in the

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record, in the reevaluation of Plaintiff’s credibility as it may

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impact on his RFC.

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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.

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by

DATED: March 24, 2014

/s/
VICTOR B. KENTON
UNITED STATES MAGISTRATE JUDGE

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