Gloria Pinales Garcia v. Carolyn W. Colvin
Filing
19
MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that (1) plaintiff's request for remand is GRANTED; (2) the decision of the Commissioner is REVERSED; and (3) this action is REMANDED to defendant for further proceedings consistent with this Memorandum Opinion. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. **See Order for details.** (ch)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
WESTERN DIVISION
11
12
GLORIA PINALES GARCIA,
13
Plaintiff,
14
15
16
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
17
Defendant.
)
)
)
)
)
)
)
)
)
)
)
)
No. CV 14-5070-PLA
MEMORANDUM OPINION AND ORDER
18
19
I.
20
PROCEEDINGS
21
Plaintiff filed this action on June 30, 2014, seeking review of the Commissioner’s denial of
22
her application for Disability Insurance Benefits (“DIB”). The parties filed Consents to proceed
23
before the undersigned Magistrate Judge on July 15, 2014, and March 25, 2015.1 Pursuant to the
24
Court’s Order, the parties filed a Joint Stipulation on January 28, 2015, that addresses their
25
26
27
28
1
On March 23, 2015, the Court issued a Report and Recommendation. In light of plaintiff’s
subsequent filing of her Consent to proceed, on March 25, 2015, the Court withdrew the Report
and Recommendation.
1
positions concerning the disputed issues in the case. The Court has taken the Joint Stipulation
2
under submission without oral argument.
3
4
II.
5
BACKGROUND
6
7
Plaintiff was born on August 12, 1961. [Administrative Record (“AR”) at 31, 173.] She has
past relevant work experience as a dental assistant. [AR at 31, 64.]
8
On December 31, 2009, plaintiff protectively filed an application for a period of disability and
9
DIB, alleging that she has been unable to work since April 1, 2008. [AR at 19, 173.] After her
10
application was denied initially and upon reconsideration, plaintiff timely filed a request for a
11
hearing before an Administrative Law Judge (“ALJ”). [AR at 19, 96-97.] A hearing was held on
12
February 16, 2012, at which time plaintiff appeared represented by an attorney, and testified on
13
her own behalf. [AR at 36-72.] A vocational expert (“VE”) also testified. [AR at 63-71.] On
14
February 24, 2012, the ALJ issued a decision concluding that plaintiff was not under a disability
15
from April 1, 2008, the alleged date of onset, through December 31, 2010, the date last insured.
16
[AR at 19-33.] Plaintiff requested review of the ALJ’s decision by the Appeals Council. [AR at 15.]
17
When the Appeals Council denied plaintiff’s request for review on October 16, 2013 [AR at 9-13],
18
the ALJ’s decision became the final decision of the Commissioner. See Sam v. Astrue, 550 F.3d
19
808, 810 (9th Cir. 2008) (per curiam) (citations omitted). This action followed.
20
21
III.
22
STANDARD OF REVIEW
23
Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner’s
24
decision to deny benefits. The decision will be disturbed only if it is not supported by substantial
25
evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622
26
F.3d 1228, 1231 (9th Cir. 2010) (citation omitted).
27
/
28
2
1
“Substantial evidence means more than a mere scintilla but less than a preponderance; it
2
is such relevant evidence as a reasonable mind might accept as adequate to support a
3
conclusion.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008) (citation
4
and internal quotation marks omitted); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998)
5
(same). When determining whether substantial evidence exists to support the Commissioner’s
6
decision, the Court examines the administrative record as a whole, considering adverse as well
7
as supporting evidence. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001) (citation omitted);
8
see Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (“[A] reviewing court must
9
consider the entire record as a whole and may not affirm simply by isolating a specific quantum
10
of supporting evidence.”) (citation and internal quotation marks omitted). “Where evidence is
11
susceptible to more than one rational interpretation, the ALJ’s decision should be upheld.” Ryan,
12
528 F.3d at 1198 (citaiton and internal quotation marks omitted); see Robbins v. Soc. Sec. Admin.,
13
466 F.3d 880, 882 (9th Cir. 2006) (“If the evidence can support either affirming or reversing the
14
ALJ’s conclusion, [the reviewing court] may not substitute [its] judgment for that of the ALJ.”)
15
(citation omitted).
16
17
IV.
18
THE EVALUATION OF DISABILITY
19
Persons are “disabled” for purposes of receiving Social Security benefits if they are unable
20
to engage in any substantial gainful activity owing to a physical or mental impairment that is
21
expected to result in death or which has lasted or is expected to last for a continuous period of at
22
least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir.
23
1992).
24
25
A.
THE FIVE-STEP EVALUATION PROCESS
26
The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing
27
whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821,
28
828 n.5 (9th Cir. 1995), as amended April 9, 1996. In the first step, the Commissioner must
3
1
determine whether the claimant is currently engaged in substantial gainful activity; if so, the
2
claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in
3
substantial gainful activity, the second step requires the Commissioner to determine whether the
4
claimant has a “severe” impairment or combination of impairments significantly limiting her ability
5
to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id.
6
If the claimant has a “severe” impairment or combination of impairments, the third step requires
7
the Commissioner to determine whether the impairment or combination of impairments meets or
8
equals an impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. part 404,
9
subpart P, appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If
10
the claimant’s impairment or combination of impairments does not meet or equal an impairment
11
in the Listing, the fourth step requires the Commissioner to determine whether the claimant has
12
sufficient “residual functional capacity” to perform her past work; if so, the claimant is not disabled
13
and the claim is denied. Id. The claimant has the burden of proving that she is unable to
14
perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a
15
prima facie case of disability is established. Id. The Commissioner then bears the burden of
16
establishing that the claimant is not disabled, because she can perform other substantial gainful
17
work available in the national economy. Id. The determination of this issue comprises the fifth
18
and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at
19
828 n.5; Drouin, 966 F.2d at 1257.
20
21
B.
THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS
22
At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity
23
during the period from April 1, 2008, the alleged onset date, through December 31, 2010, her date
24
last insured. [AR at 21.] At step two, the ALJ concluded that plaintiff has the following severe
25
impairments:
26
27
28
[D]isc disease of the lumbar spine with history of lumbar fusion surgery in 2004;
degenerative joint disease of the left knee, requiring surgery on October 27, 2011;
hypertension; obesity; major depressive disorder; and pain disorder due to general
medical condition.
4
1
[Id.] At step three, the ALJ determined that plaintiff does not have an impairment or a combination
2
of impairments that meets or medically equals any of the impairments in the Listings. [AR at 22.]
3
The ALJ stated that he specifically considered whether plaintiff meets or equals Listings 1.02 and
4
1.04. [Id.] The ALJ further found that plaintiff retained the residual functional capacity (“RFC”)2
5
to perform light work as defined in 20 C.F.R. § 404.1567(b),3 as follows:
6
[C]an lift and/or carry 20 pounds occasionally and 10 pounds frequently; she can
stand and/or walk for six hours out of an eight-hour workday with regular breaks;
she can sit for six hours out of an eight-hour workday with regular breaks; she is
unlimited with respect to pushing and/or pulling, other than as indicated for lifting
and/or carrying; she can frequently climb ramps and stairs; she can frequently reach
in all directions; she can perform frequent handling and fingering; she cannot climb
ladders, ropes, or scaffolds; she should avoid concentrated exposure to hazards;
she can perform simple repetitive tasks; and she can have no more than occasional
contact with coworkers and the general public.
7
8
9
10
11
[AR at 24.] At step four, based on plaintiff’s RFC and the testimony of the VE, the ALJ concluded
12
that plaintiff is unable to perform any of her past relevant work as a dental assistant. [AR at 31,
13
64-65.] At step five, based on plaintiff’s RFC, vocational factors, and the VE’s testimony, the ALJ
14
found that there are jobs existing in significant numbers in the national economy that plaintiff can
15
perform, including work as a “folder” (Dictionary of Occupational Titles (“DOT”) No. 686.685-030),
16
“packer” (DOT No. 920.687-018), and “packing machine operator” (DOT No. 920.665-010). [AR
17
at 32, 65-66.] Accordingly, the ALJ determined that plaintiff was not disabled at any time from the
18
alleged onset date of April 1, 2008, through December 31, 2010, the date last insured. [AR at 32.]
19
20
2
21
22
23
24
25
26
27
28
RFC is what a claimant can still do despite existing exertional and nonexertional
limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). “Between steps
three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which
the ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149,
1151 n.2 (9th Cir. 2007) (citation omitted).
3
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this
category when it requires a good deal of walking or standing, or when it involves sitting most of the
time with some pushing and pulling of arm or leg controls. To be considered capable of performing
a full or wide range of light work, you must have the ability to do substantially all of these activities. If
someone can do light work, we determine that he or she can also do sedentary work, unless there are
additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 20
C.F.R. § 404.1567(b).
5
1
V.
2
THE ALJ’S DECISION
3
Plaintiff contends that the ALJ erred when he: (1) determined that plaintiff’s back condition
4
did not meet or equal Listing 1.04A; and (2) determined plaintiff’s RFC. [Joint Stipulation (“JS”)
5
at 4.]
6
7
As set forth below, the Court agrees with plaintiff, in part, and remands for further
proceedings.
8
9
A.
LISTING 1.04
10
At step three of the evaluation process, the ALJ must determine whether a claimant has
11
an impairment of combination of impairments that meets or equals a condition outlined in the
12
Listing. 20 C.F.R. §§ 404.1520(d), 416.920(d). “An ALJ must evaluate the relevant evidence
13
before concluding that a claimant’s impairments do not meet or equal a listed impairment. A
14
boilerplate finding is insufficient to support a conclusion that a claimant’s impairment does not do
15
so.” Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001) (citing Marcia v. Sullivan, 900 F.2d 172, 176
16
(9th Cir. 1990)). “To meet a listed impairment, a claimant must establish that he or she meets
17
each characteristic of a listed impairment relevant to his or her claim.
18
impairment,[4] a claimant must establish symptoms, signs and laboratory findings ‘at least equal
19
in severity and duration’ to the characteristics of a relevant listed impairment . . . .” Tackett v.
20
Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999) (quoting 20 C.F.R. § 404.1526) (emphases in original);
21
see also 20 C.F.R. § 416.926(a).
22
To equal a listed
Plaintiff contends that the ALJ erred in his consideration of whether plaintiff meets or equals
23
Listing 1.04A. [JS at 5-12.]
24
/
25
/
26
27
4
28
The Social Security Administration refers to this as “medical equivalence.” See 20 C.F.R.
§§ 404.1526, 416.926.
6
1
1.
The Requirements of Listing 1.04
2
Listing 1.04 requires a finding of disability for an individual who (a) has a “[d]isorder[] of the
3
spine” such as “herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis,
4
degenerative disc disease, facet arthritis, or vertebral fracture,” (b) that results in compromise of
5
a nerve root or the spinal cord, and (c) which is accompanied by the additional requirements set
6
forth under section 1.04A, 1.04B, or 1.04C. 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.04. Section
7
1.04A requires “[e]vidence of nerve root compression characterized by neuro-anatomic distribution
8
of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness
9
or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the
10
lower back, positive straight-leg raising test (sitting and supine).” Id. § 1.04A (emphasis added).
11
12
2.
Plaintiff's Impairments Do Not Meet the Requirements of Listing 1.04
13
Plaintiff contends that she meets Listing 1.04A. [See, e.g., JS at 5-9.] To meet a listing,
14
a claimant’s impairments must “meet all of the specified medical criteria.” Sullivan v. Zebley, 493
15
U.S. 521, 530, 110 S. Ct. 885, 207 L. Ed. 2d 967 (1990). “An impairment that manifests only
16
some of those criteria, no matter how severely, does not qualify.” Id.
17
Although plaintiff sets out her reasoning as to all of the requirements necessary to meet
18
Listing 1.04A [see, e.g., JS at 6-9], the only requirement that appears to be contested by
19
defendant is whether there is evidence in the record of nerve root compression. [See, e.g., JS at
20
13.] Accordingly, this is the only requirement the Court will consider herein.
21
In support of her argument that there is evidence of nerve root compression, plaintiff states:
22
The ALJ stated that the record shows partial numbing across the top of each
foot involving the little toes extending to the lower leg. This represents irritation of
the fifth lumbar and sacral nerve in the lumbar spine. She had a positive stretch test
showing nerve root entrapment at the intervertebral foramen in the lumbar spine.
A neurological examination showed irritation of the fifth lumbar nerve on both sides
of the midline extending from the lumbar spine.
23
24
25
[JS at 6-7 (citing AR at 26).]
26
Defendant disagrees:
27
28
Plaintiff alleges that she meets this requirement [of nerve root compression]
because Ian Brodie, M.D., noted that partial numbing across the top of [plaintiff’s]
7
1
2
feet represented an irritation of the fifth lumbar and first sacral nerve in the lumbar
spine. Listing 1.04A requires evidence of nerve root compression and not irritation,
and Plaintiff’s claim fails because she has not established evidence of nerve root
compression.
3
4
[JS at 13 (citing Huizar v. Astrue, 2012 WL 3631526, at *6 (C.D. Cal. Aug. 23, 2012) (holding that
5
evidence of a disc protrusion touching a nerve root did not constitute evidence of the nerve root
6
compression required by Listing 1.04A).]
7
In reply, plaintiff states that in contrast to Huizar, the record here shows more than just a
8
mere “touching” of a nerve root -- it shows partial numbing across the top of each foot,
9
representing irritation of the fifth lumbar and sacral nerve; it shows “a positive stretch test showing
10
nerve root entrapment at the intervertebral foramen in the lumbar spine”; and it shows irritation of
11
the fifth lumbar nerve on both sides of the midline extending from the lumbar spine. [JS at 15
12
(emphasis added).] She emphasizes that Dr. Brodie, the Agreed Medical Examiner in plaintiff’s
13
workers’ compensation case, found that “Stretch tests are positive in sitting and recumbency
14
for nerve entrapment at the intervertebral foramen in the lumbar spine.” [Id. (citing to AR at
15
589) (internal quotation marks omitted); see also AR at 716.]
16
The Court agrees with defendant that symptoms that “represent irritation of the lumbar and
17
sacral nerve in the lumbar spine” are not the equivalent of “a nerve root compression.” Moreover,
18
although plaintiff’s stretch test results in both May 2009 and October 2011 were “positive” for
19
nerve root entrapment, Dr. Brodie’s ultimate diagnoses do not include either nerve root entrapment
20
or nerve root compression. [See, e.g., AR at 591, 718 (indicating a diagnosis of “chronic
21
strain/sprain of the lumbar spine with radiating sciatica into both lower extremities”).] Indeed,
22
despite this finding, in October 2011, Dr. Brodie also found that plaintiff was capable of light or
23
semi-sedentary work. [AR at 718.] There is no indication, therefore, that “entrapment” is the
24
equivalent of “compression” or, even if it is, that the positive stretch test result alone, i.e., without
25
confirming diagnostic evaluations or radiological reports, is enough to warrant a finding of
26
evidence of nerve root compression. Nor does plaintiff point to any treating, consulting, or non-
27
examining source, or radiological report, that finds evidence of nerve root compression.
28
8
1
2
Accordingly, plaintiff has not demonstrated that she meets all of the specified medical
criteria of Listing 1.04A.
3
4
3.
Plaintiff's Impairments Do Not Medically Equal the Requirements of Listing
1.04
5
6
In the alternative, plaintiff argues that her impairments medically equal the requirements
7
of Listing 1.04. [JS at 10-11.] “To equal a listed impairment, a claimant must establish symptoms,
8
signs and laboratory findings ‘at least equal in severity and duration’ to the characteristics of a
9
relevant listed impairment . . . .”
10
Tackett, 180 F.3d at 1099 (quoting 20 C.F.R. § 404.1526)
(emphasis in original); see also 20 C.F.R. § 416.926(a).
11
Plaintiff argues:
12
In this case, Plaintiff has a knee condition which, in addition to her back
condition, further limits her standing and walking. The ALJ’s findings support the
proposition that Plaintiff has limited standing and walking ability as the result of her
left knee condition.
13
14
15
[JS at 10-11.] Plaintiff notes that the “ALJ’s findings” relating to plaintiff’s left knee condition
16
include findings that plaintiff suffers from degenerative joint disease of the left knee requiring
17
surgery in October 2011; that plaintiff walks with a limp and was found to have left thigh atrophy
18
and a positive Patellar Tap Test in the left knee; that plaintiff could only perform a half-squat
19
because of her knee; that there was a strength deficit in her left thigh muscles; that her knee had
20
medial and lateral joint line tenderness; that there was a positive McMurray’s test; and that an MRI
21
of her left knee showed a posterior horn medial meniscal tear, and intra-meniscal degeneration
22
in the anterior horns of the medial and lateral menisci. [JS at 11 (citing AR at 21, 27, 253, 684-
23
88).]
24
Plaintiff further argues that “[t]he [ALJ’s] findings with respect to the knee exacerbate
25
and/or are a substitute for motor loss associated with muscle weakness required by Listing 1.04A.”
26
[JS at 11.]
27
symptoms already meet Listing 1.04A’s requirement for motor loss associated with muscle
28
weakness. [See generally JS at 12-14.] The relevant issue herein, therefore, is whether the
However, as previously discussed, defendant appears to agree that plaintiff’s
9
1
evidence demonstrates signs or symptoms at least equal in severity and duration to the
2
characteristics of a relevant listed impairment -- in this case, equal in severity and duration to a
3
nerve root compression. Plaintiff does not attempt to explain how a reduced ability to squat [AR
4
at 590], walking with a slight limp [AR at 589], left knee joint tenderness [AR at 253], slight left
5
thigh muscle atrophy [AR at 590], or any of the other recited findings are medically equivalent to
6
the signs and symptoms that could be expected to result from a compressed nerve root.
7
Thus, while there are some objective medical findings that arguably might be minimally
8
related to motor loss, plaintiff has failed to demonstrate medical equivalence, which requires a
9
showing of “symptoms, signs, and laboratory findings ‘at least equal in severity and duration’ to
10
the characteristics of a relevant listed impairment.” Tackett, 180 F.3d at 1099 (emphasis added).
11
Accordingly, plaintiff has failed to establish that her impairments equal Listing 1.04.
12
Notwithstanding the above, because the matter is being remanded for reconsideration of
13
plaintiff’s subjective complaints, plaintiff on remand may provide evidence, if available, either of
14
nerve root compression, or of symptoms, signs and laboratory findings at least equal in severity
15
and duration to nerve root compression as required pursuant to Listing 1.04A.
16
17
B.
The ALJ’s RFC Determination
18
Plaintiff contends that the ALJ’s RFC determination is incomplete because (1) the ALJ failed
19
to properly consider plaintiff’s testimony; (2) it lacks moderate limitations in concentration,
20
persistence or pace; (3) it lacks limitations on reaching, fingering and handling in all directions; and
21
(4) it does not include limitations resulting from plaintiff’s pain disorder. [JS at 25-26.]
22
23
1.
Plaintiff’s Credibility
24
Plaintiff argues that the ALJ improperly failed to take into account her subjective symptom
25
testimony, including her allegations of pain. [JS at 20-24.] Specifically, she contends that
26
“because the ALJ made no finding that plaintiff was malingering, the ALJ was required to ‘state
27
specifically which symptom testimony is not credible and what facts in the record lead to that
28
conclusion’ . . . and did not do so.” [JS at 19 (citing Smolen v. Chater, 80 F.3d 1273, 1284 (9th
10
1
Cir. 1996)).] Thus, plaintiff generally alleges that the ALJ failed provide clear and convincing
2
reasons for finding her statements not fully credible. [JS at 18.]
3
“To determine whether a claimant’s testimony regarding subjective pain or symptoms is
4
credible, an ALJ must engage in a two-step analysis.” Lingenfelter v. Astrue, 504 F.3d 1028,
5
1035-36 (9th Cir. 2007). “First, the ALJ must determine whether the claimant has presented
6
objective medical evidence of an underlying impairment ‘which could reasonably be expected to
7
produce the pain or other symptoms alleged.’” Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d
8
341, 344 (9th Cir. 1991) (en banc)). Second, if the claimant meets the first test, the ALJ may
9
reject the claimant’s testimony about the severity of his symptoms “only upon (1) finding evidence
10
of malingering, or (2) expressing clear and convincing reasons for doing so.” Benton v. Barnhart,
11
331 F.3d 1030, 1040 (9th Cir. 2003). Factors to be considered in weighing a claimant’s credibility
12
include: (1) the claimant’s reputation for truthfulness; (2) inconsistencies either in the claimant’s
13
testimony or between the claimant’s testimony and his conduct; (3) the claimant’s daily activities;
14
(4) the claimant’s work record; and (5) testimony from physicians and third parties concerning the
15
nature, severity, and effect of the symptoms of which the claimant complains. See Thomas v.
16
Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also Ghanim v. Colvin, 763 F.3d 1154, 1163
17
(9th Cir. 2014); 20 C.F.R. §§ 404.1529(c), 416.929(c).
18
Where, as here, plaintiff has presented evidence of an underlying impairment, and the ALJ
19
did not find “affirmative evidence” of malingering [see, generally, AR at 29-30], the ALJ’s reasons
20
for rejecting a claimant’s credibility must be specific, clear and convincing. Burrell v. Colvin, 775
21
F.3d 1133, 1136 (9th Cir. 2014) (citing Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)).
22
“General findings [regarding a claimant’s credibility] are insufficient; rather, the ALJ must identify
23
what testimony is not credible and what evidence undermines the claimant’s complaints.” Id. at
24
1138 (quoting Lester, 81 F.3d at 834) (internal quotation marks omitted). The ALJ’s findings “must
25
be sufficiently specific to allow a reviewing court to conclude the adjudicator rejected the claimant’s
26
testimony on permissible grounds and did not arbitrarily discredit a claimant’s testimony regarding
27
pain.” Bunnell, 947 F.2d at 345-46 (citation and internal quotation marks omitted). A “reviewing
28
court should not be forced to speculate as to the grounds for an adjudicator’s rejection of a
11
1
claimant’s allegations of disabling pain.” Id. at 346. As such, an “implicit” finding that a plaintiff’s
2
testimony is not credible is insufficient. Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) (per
3
curiam).
4
Here, plaintiff testified that she can lift a gallon of milk, sit or stand for twenty or thirty
5
minutes at a time, and walk a “block and back.” [AR at 50-51.] Her daily routine includes self-
6
care, driving her son to school, performing light housework, and resting in between activities. [AR
7
at 52.] She testified that driving was difficult because of her problems with getting in and out of
8
the car and driving for long periods of time. [Id.] She is able to grocery shop by herself as long
9
as she does not have to bend down to reach the lower shelves. [AR at 53.] She also told the
10
consulting psychiatrist that she can sit or stand for two to three hours in an eight-hour workday,
11
can perform household chores, make snacks, shop, perform self-care tasks, and drive. [AR at
12
462.]
13
The ALJ found plaintiff to be “less than fully credible” [AR at 31]:
14
Although the claimant’s activities of daily living were somewhat limited, some of the
physical and mental abilities and social interactions required in order to perform
these activities are the same as those necessary for obtaining and maintaining
employment and are inconsistent with the presence of an incapacitating or
debilitating condition. The claimant’s ability to participate in such activities
undermined the credibility of the claimant’s allegations of disabling functional
limitations. Although the claimant alleged she felt constant pain, she admitted that
she could perform some light housework with breaks. Moreover, she complained
that driving to see her doctor once in a while was very difficult. She alleged she felt
pain when she got in and out of the car and sometimes she lost sensation in her
feet. Despite these clams, she admitted she could drive her son to school everyday.
15
16
17
18
19
20
21
22
The record includes statements by [the] psychiatric consultative examiner
suggesting the claimant was engaging in possible malingering or misrepresentation.
The consultative examiner noted the claimant had a very low score on the Credibility
Scale, which suggested she was not candid during the examination. Suggestions
of malingering during the psychiatric consultation diminish the credibility of the
claimant’s statements.
23
....
24
26
Generously considering the claimant’s subjective complaints [of memory problems
due to the side effects of her medications], the undersigned assessed the claimant
with the ability to perform simple repetitive tasks, but not follow detailed and complex
instructions.
27
[AR at 25, 30-31 (citations omitted).] The ALJ also found that the objective medical evidence does
28
not support the alleged severity of plaintiff’s symptoms. [AR at 31.]
25
12
1
The ALJ relied on plaintiff’s daily activities to discount her credibility. An ALJ may rely on
2
a claimant’s daily activities to support an adverse credibility determination when those activities:
3
(1) “contradict [the claimant’s] other testimony”; or (2) “meet the threshold for transferable work
4
skills.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). As a result, a plaintiff’s credibility may
5
be discounted if she “is able to spend a substantial part of [her] . . . day performing household
6
chores or other activities that are transferable to a work setting.” Smolen, 80 F.3d at 1284 n.7.
7
A claimant, however, need not be “utterly incapacitated to be eligible for benefits . . . and many
8
home activities are not easily transferable to what may be the more grueling environment of the
9
workplace, where it might be impossible to periodically rest or take medication.” Fair v. Bowen,
10
885 F.2d 597, 603 (9th Cir. 1989) (citations omitted); Gallant v. Heckler, 753 F.2d 1450, 1453 (9th
11
Cir. 1984) (an ability to engage in some physical activities is not necessarily inconsistent with a
12
finding of disability). “Even where those activities suggest some difficulty functioning, they may
13
be grounds for discrediting the claimant’s testimony to the extent that they contradict claims of a
14
totally debilitating impairment.” Molina, 674 F.3d at 1112 (citing Turner v. Comm’r of Soc. Sec.,
15
613 F.3d 1217, 1225 (9th Cir. 2010); Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 693
16
(9th Cir. 2009)). An ALJ must identify “which daily activities conflicted with which part of
17
[c]laimant’s testimony,” pointing to specific facts in the record to support an adverse credibility
18
finding. Burrell, 775 F.3d at 1138.
19
Here, the ALJ first stated that some of plaintiff’s daily activities require abilities that are
20
necessary for obtaining and maintaining employment. [AR at 25.] He completely failed, however,
21
to show how the few daily activities plaintiff testified to doing, e.g., taking a shower, getting
22
dressed, doing some light housework with breaks, driving her son to school daily, doing some
23
grocery shopping, and driving to Riverside “once in a while” for her doctor’s appointments were
24
transferable to finding and maintaining employment. [AR at 24-25.] Accordingly, this was not a
25
specific, clear and convincing reason for discounting plaintiff’s testimony.
26
The ALJ also stated that plaintiff’s daily activities were inconsistent with the presence of an
27
incapacitating or debilitating condition, and her “ability to participate in such activities undermined”
28
her credibility. [AR at 25.] Specifically, the ALJ cited to two facts: (1) although plaintiff alleged
13
1
“constant pain,” she was able to perform some light housework with breaks; and, (2) although
2
plaintiff complained that driving to her doctor in Riverside from her home in San Jacinto was very
3
difficult because she felt pain getting in and out of the car and sometimes lost sensation in her feet
4
and would have to stop and walk around before continuing the drive, she nevertheless drove her
5
son to school daily. [Id.] Again, a claimant does not have to be completely incapacitated to be
6
disabled. See Fair, 885 F.2d at 603; see also Vertigan v. Halter, 260 F.3d 1044, 1049-50 (9th Cir.
7
2001) (“the mere fact that a plaintiff has carried on certain daily activities, such as grocery
8
shopping, driving a car, or limited walking or exercise, does not in any way detract from her
9
credibility as to her overall disability.”); Gallant, 753 F.2d at 1453-55 (fact that claimant could cook
10
for himself and family members as well as wash dishes did not preclude a finding that claimant
11
was disabled). Moreover, although the ALJ made an effort to identify one of plaintiff’s daily
12
activities -- driving her son to school daily -- which he believed conflicted with plaintiff’s testimony
13
of having significant problems driving from home to her doctor in Riverside once in a while, this
14
was not a convincing reason to discount plaintiff’s subjective complaints. In fact, plaintiff’s difficulty
15
driving “out of town” from San Jacinto to Riverside to see her doctor “once in a while” is consistent
16
with plaintiff’s testimony that she can sit around twenty to thirty minutes before she feels pain in
17
her lower back and down her legs, and needs to get up and walk around so that the numbness
18
and the “hot needles and pin feeling” will go away. [AR at 50, 55-56.] Although plaintiff did not
19
testify how far she has to go to drop her son off at school, there is no indication that it is anywhere
20
near as far as the drive to the doctor. [Compare AR at 52 (plaintiff’s statement that a typical day
21
includes “taking my son to school, coming back, trying to do very light housework)” with id. (plaintiff
22
characterizes the drive to the doctor as “pretty rough” because it is “out of town”).] Accordingly,
23
this was not a specific, clear and convincing reason to discount plaintiff’s subjective statements.
24
The ALJ also discounted plaintiff’s subjective statements based on a comment by the
25
consultative psychiatric examiner, Irwin Savodnik, M.D., Ph.D., Q.M.E., that plaintiff’s “very low
26
score on the Credibility Scale . . . suggested she was not candid during the examination.” [AR at
27
25 (citing AR at 395).] Accounting for Dr. Savodnik’s entire report, however, the Court does not
28
find this to be a convincing reason to discount plaintiff’s testimony, or to require less than clear and
14
1
convincing reasons to discount her credibility. As Dr. Savodnik indicated, the Credibility Scale
2
is an “experimental true-false scale,” and in evaluating the test results, “careful attention is given
3
to the other tests, the patient’s history, and the personality findings on Axis II,” and the
4
“interpretation of [the findings] is involved because of the necessity of integrating these results into
5
the sum total of the clinical and testing evaluations.” [AR at 395 (emphasis added).] Dr. Savodnik
6
also administered the Personality Assessment Inventory (“PAI”), which “provides a number of
7
validity indices . . . designed to provide an assessment of factors that could distort” test results,
8
including “failure to complete test items properly, carelessness, reading difficulties, confusion,
9
exaggeration, malingering, or defensiveness.” [AR at 397.] Dr. Savodnik found that with respect
10
to plaintiff’s results on these validity indices, “the number of uncompleted items is within
11
acceptable limits.”
12
intentionally distort the profile” [id.], and “no evidence to suggest that [plaintiff] was motivated to
13
portray herself in a more negative or pathological light than the clinical picture would warrant.” [AR
14
at 398.] Dr. Savodnik also administered the Rey 15-Item Memorization Test and the Rey Dot
15
Counting Test, which are designed to “evaluate the veracity of claims by patients that their
16
cognitive ability is decreased.” [AR at 400.] These two tests when used “in conjunction with other
17
tests designed to evaluate malingering have been fruitful in identifying patients who were not truly
18
impaired cognitively, and were either exaggerating or fabricating their symptoms.” [Id.] Plaintiff
19
“passed the measures, suggesting that she probably was not attempting to malinger cognitive
20
deficits.” [AR at 401.] On the basis of all of the administered tests, Dr. Savodnik diagnosed pain
21
disorder secondary to a general medical condition, and personality disorder not otherwise
22
specified with borderline, obsessive-compulsive and histrionic features. [AR at 441.] Thus,
23
despite plaintiff’s one lower score on the Credibility Test, Dr. Savodnik considered all of plaintiff’s
24
test results and ultimately did not find that plaintiff was either a malingerer or exaggerating her
25
symptoms.
[Id.]
He also found “no evidence to suggest an effort [by plaintiff] to
26
An ALJ must consider all of the relevant evidence in the record and may not point to only
27
those portions of the records that bolster his findings. See, e.g., Reddick, 157 F.3d at 722-23 (it
28
is impermissible for the ALJ to develop an evidentiary basis by “not fully accounting for the context
15
1
of materials or all parts of the testimony and reports”); Robinson v. Barnhart, 366 F.3d 1078, 1083
2
(10th Cir. 2004) (“The ALJ is not entitled to pick and choose from a medical opinion, using only
3
those parts that are favorable to a finding of nondisability.”); Whitney v. Schweiker, 695 F.2d 784,
4
788 (7th Cir. 1982) (“[A]n ALJ must weigh all the evidence and may not ignore evidence that
5
suggests an opposite conclusion.”) (citation omitted); see also Holohan v. Massanari, 246 F.3d
6
1195, 1207-08 (holding that an ALJ cannot selectively rely on some entries in plaintiff’s records
7
while ignoring others); Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (“[T]he [ALJ]’s
8
decision ‘cannot be affirmed simply by isolating a specific quantum of supporting evidence.’”)
9
(citing Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). Accordingly, the ALJ’s reliance
10
on this one test finding, taken out of context when viewing the totality of Dr. Savodnik’s report,
11
does not constitute sufficient evidence to discount plaintiff’s credibility.
12
Finally, the ALJ stated that the objective medical evidence did not support the alleged
13
severity of plaintiff’s symptoms. [AR at 31.] While a lack of objective medical evidence supporting
14
a plaintiff’s subjective complaints is one factor that an ALJ can consider in evaluating symptom
15
testimony, it cannot provide the only basis to reject a claimant’s credibility. See Light v. Soc. Sec.
16
Admin., 119 F.3d 789, 792 (9th Cir. 1997); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)
17
(“Although lack of medical evidence cannot form the sole basis for discounting pain testimony, it
18
is a factor that the ALJ can consider in his credibility analysis.”); accord Rollins v. Massanari, 261
19
F.3d 853, 857 (9th Cir. 2001). Because this reason by itself cannot be the sole legally sufficient
20
reason for discounting plaintiff’s credibility, the ALJ’s credibility determination rises or falls with the
21
ALJ’s other grounds for discrediting plaintiff. Thus, the Court declines to assess this issue at this
22
time. Because, as discussed above, the Court finds that the ALJ’s other reasons for discounting
23
plaintiff’s subjective complaints are not specific, clear and convincing, and plaintiff’s subjective
24
symptom allegations will be reconsidered on remand, the ALJ on remand may also need to
25
redetermine the extent to which the objective medical evidence supports those allegations.5
26
27
28
5
As noted by plaintiff, if a fifty-year old claimant is limited to simple, repetitive, sedentary
work, reversal would be mandated under 20 C.F.R. part 404, subpart P, appendix 2, § 201.14. [JS
(continued...)
16
1
2
Based on the foregoing, the ALJ did not provide specific, clear and convincing reasons for
discounting plaintiff’s subjective symptom testimony and remand is warranted on this issue.
3
4
2.
Moderate Limitations in Social Functioning and in Concentration, Persistence
or Pace
5
6
At step three, the ALJ found that plaintiff had moderate limitations in social functioning, and
7
in maintaining concentration, persistence or pace. [AR at 23.] Plaintiff contends that the ALJ
8
should have mentioned these limitations in the RFC. [JS at 20.]
9
However, limitations identified in step three are “not an RFC assessment but are used to
10
rate the severity of mental impairment(s) at steps 2 and 3 . . . .” Soc. Sec. Ruling (“SSR”)6 96-8p;
11
Rogers v. Comm’r of Soc. Sec. Admin., 490 F. App’x 15, 17-18 (9th Cir. 2012) (moderate
12
impairments assessed in broad functional areas used at steps two and three of the sequential
13
evaluation process did not equate to concrete work-related limitations for purposes of determining
14
a claimant’s RFC).
15
Moreover, in this case, the ALJ “generously considered” plaintiff’s subjective complaints of
16
memory problems due to medication side effects, and gave great weight to the limitations
17
assessed by the State agency mental health consultants, and to Dr. Savodnik. [AR at 31.] Based
18
on their findings, the ALJ limited plaintiff to simple repetitive tasks, and to no more than occasional
19
contact with coworkers or the general public [AR at 25], thereby accounting for her memory
20
problems and her moderate difficulties with social functioning and concentration. See Stubbs-
21
22
23
24
25
26
27
28
5
(...continued)
at 26.] Plaintiff also argues that the Administration should not mechanically apply the age
regulation because on her date last insured she was 49 years and 8 months old -- just four months
shy of age 50. [Id. (citing 20 C.F.R. § 404.1563).] Plaintiff alternatively argues that based on the
VE’s testimony, if plaintiff’s testimony were credited as true, she could not perform the alternative
work suggested by the VE. [JS at 27 (citing AR at 65-66).]
6
SSRs do not have the force of law. Nevertheless, they “constitute Social Security
Administration interpretations of the statute it administers and of its own regulations,” and are
given deference “unless they are plainly erroneous or inconsistent with the Act or regulations.”
Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989).
17
1
Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 2008); see also Israel v. Astrue, 494 F.
2
App’x 794, 796 (9th Cir. 2012) (holding that the ALJ’s RFC finding precluding plaintiff from
3
performing complex tasks properly accounted for his moderate difficulties in concentration,
4
persistence or pace.).
5
6
Accordingly, the ALJ properly accounted for plaintiff’s moderate limitations in social
functioning, and in concentration, persistence or pace. There was no error.
7
8
3.
9
The non-examining medical consultant, M. Yee, M.D., reviewed plaintiff’s records and
10
opined that she was capable of performing light work with additional limitations. [AR at 379-82.]
11
Plaintiff contends that although the ALJ gave “great weight” to the State agency physical medical
12
consultants, he failed to consider Dr. Yee’s finding that plaintiff “is limited in reaching all directions,
13
handling, fingering and feeling.” [JS at 20 (emphasis in original) (citing AR at 380).] A review of
14
Dr. Yee’s report, however, reveals that although Dr. Yee found plaintiff limited in reaching,
15
handling, and fingering, and unlimited in feeling, he further described this limitation by explaining
16
that plaintiff was still capable of “[f]requent gross and fine manipulation and reaching in all
17
directions.” [AR at 380 (emphasis added).]
18
19
Dr. Yee’s Opinion
Accordingly, the ALJ properly considered this opinion of Dr. Yee and incorporated it into
plaintiff’s RFC determination. There was no error.
20
21
4.
Plaintiff’s Pain Disorder
22
Plaintiff also contends that although the ALJ found that plaintiff suffers from a pain disorder
23
based on Dr. Savodnik’s diagnosis [AR at 21, 441], the ALJ’s failure to include the pain disorder,
24
or limitations resulting from that disorder in the RFC, means that the RFC is incomplete. [JS at
25
26.]
26
27
28
18
1
Because the matter is being remanded for reconsideration of plaintiff’s subjective
2
complaints, including her allegations of pain, the ALJ on remand should also determine whether
3
the RFC should contain any limitations relating to plaintiff’s pain disorder.
4
5
VI.
6
REMAND FOR FURTHER PROCEEDINGS
7
The Court has discretion to remand or reverse and award benefits. McAllister v. Sullivan,
8
888 F.2d 599, 603 (9th Cir. 1989). Where no useful purpose would be served by further
9
proceedings, or where the record has been fully developed, it is appropriate to exercise this
10
discretion to direct an immediate award of benefits. See Lingenfelter, 504 F.3d at 1041; Benecke
11
v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004). Where there are outstanding issues that must
12
be resolved before a determination can be made, and it is not clear from the record that the ALJ
13
would be required to find plaintiff disabled if all the evidence were properly evaluated, remand is
14
appropriate. See Benecke, 379 F.3d at 593-96.
15
Here, there are outstanding issues that must be resolved before a final determination can
16
be made.
In an effort to expedite these proceedings and to avoid any confusion or
17
misunderstanding as to what the Court intends, the Court will set forth the scope of the remand
18
proceedings. First, on remand, plaintiff may provide evidence, if available, either of nerve root
19
compression, or of symptoms, signs and laboratory findings at least equal in severity and duration
20
to nerve root compression as required pursuant to Listing 1.04A. Next, because the ALJ failed
21
to provide specific, clear and convincing reasons for discounting plaintiff’s subjective symptom
22
testimony, the ALJ on remand shall reassess plaintiff’s subjective allegations and either credit her
23
testimony as true, or provide specific, clear and convincing reasons for discounting or rejecting
24
any testimony. Further, the ALJ shall reconsider all of plaintiff’s limitations in making his RFC
25
determination, including any limitations as a result of the severe impairment of pain disorder.
26
Thereafter, with the assistance of a VE, if warranted, the ALJ shall determine whether plaintiff is
27
28
19
1
capable of performing any other work existing in significant numbers in the regional and national
2
economies.7
3
4
VII.
5
CONCLUSION
6
IT IS HEREBY ORDERED that (1) plaintiff’s request for remand is granted; (2) the decision
7
of the Commissioner is reversed; and (3) this action is remanded to defendant for further
8
proceedings consistent with this Memorandum Opinion.
9
10
IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the
Judgment herein on all parties or their counsel.
11
12
This Memorandum Opinion and Order is not intended for publication, nor is it
intended to be included in or submitted to any online service such as Westlaw or Lexis.
13
14
15
DATED: March 26, 2015
16
______________________________________
PAUL L. ABRAMS
UNITED STATES MAGISTRATE JUDGE
17
18
19
20
21
22
23
24
25
26
27
28
7
Nothing herein is intended to disrupt the ALJ’s step four finding that plaintiff is unable to
return to her past relevant work.
20
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?