Juanita Martina Medina v. Carolyn W. Colvin

Filing 18

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 furthe r 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

JUANITA MARTINA MEDINA,

13

Plaintiff,

14
15

v.

16

NANCY BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,

17

Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

No. CV 16-3800-PLA
MEMORANDUM OPINION AND ORDER

18
19

I.

20

PROCEEDINGS

21

Plaintiff filed this action on May 31, 2016, seeking review of the Commissioner’s1 denial of

22

her application for Disability Insurance Benefits (“DIB”). The parties filed Consents to proceed

23

before the undersigned Magistrate Judge on June 23, 2016, and July 6, 2016. Pursuant to the

24

Court’s Order, the parties filed a Joint Submission (alternatively “JS”) on January 12, 2017, that

25

addresses their positions concerning the disputed issues in the case. The Court has taken the

26
27
28

1

Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy Berryhill, the current
Acting Commissioner of Social Security, is hereby substituted as the defendant herein.

1

Joint Submission under submission without oral argument.

2
3

II.

4

BACKGROUND
Plaintiff was born on June 24, 1958.2 [Administrative Record (“AR”) at 137.] She has past

5
6

relevant work experience as a charge nurse, and as a Social Service Worker. [AR at 27, 62.]

7

On July 2, 2014, plaintiff filed an application for a period of disability and DIB, alleging that

8

she has been unable to work since May 19, 2013. [AR at 20, 137.] After her application was

9

denied initially, plaintiff timely filed a request for a hearing before an Administrative Law Judge

10

(“ALJ”). [AR at 20, 82-83.] A hearing was held on December 21, 2015, at which time plaintiff

11

appeared represented by an attorney, and testified on her own behalf. [AR at 34-66.] A

12

vocational expert (“VE”) also testified. [AR at 60-66.] On January 22, 2016, the ALJ issued a

13

decision concluding that plaintiff was not under a disability from May 19, 2013, the alleged onset

14

date, through January 22, 2016, the date of the decision. [AR at 20-29.] Plaintiff requested review

15

of the ALJ’s decision by the Appeals Council. [AR at 15-16.] When the Appeals Council denied

16

plaintiff’s request for review on April 1, 2016 [AR at 1-6], the ALJ’s decision became the final

17

decision of the Commissioner. See Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (per curiam)

18

(citations omitted). This action followed.

19
20

III.

21

STANDARD OF REVIEW

22

Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner’s

23

decision to deny benefits. The decision will be disturbed only if it is not supported by substantial

24

evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622

25

F.3d 1228, 1231 (9th Cir. 2010) (citation omitted).

26
27
28

2

On the alleged onset date, plaintiff was defined as “an individual closely approaching
advanced age”; by the time of the hearing she had changed age category to “advanced age.” [AR
at 28 (citing 20 C.F.R. § 404.1563).]
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 (citation 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 since

23

May 19, 2013, the alleged onset date.3 [AR at 22.] At step two, the ALJ concluded that plaintiff

24

has the severe impairments of lumbar spine degenerative disc disease; osteopenia; osteoarthritis

25

of the left knee and bilateral hips; right knee disorder; and obesity. [Id.] He determined plaintiff’s

26
27
28

3

The ALJ concluded that plaintiff meets the insured status requirements of the Social
Security Act through December 31, 2018. [AR at 22.]
4

1

hypertension and bilateral cataracts with floaters to be non-severe. [AR at 22-23.] At step three,

2

the ALJ determined that plaintiff does not have an impairment or a combination of impairments

3

that meets or medically equals any of the impairments in the Listing. [AR at 23.] The ALJ further

4

found that plaintiff retained the residual functional capacity (“RFC”)4 to perform light work as

5

defined in 20 C.F.R. § 404.1567(b),5 “except she can occasionally perform postural activities and

6

she needs a cane for prolonged ambulation.” [Id.] At step four, based on plaintiff’s RFC and the

7

testimony of the VE, the ALJ concluded that plaintiff is able to perform her past relevant work as

8

a social service worker. [AR at 27, 63.] The ALJ made an alternative finding at step five that there

9

are other jobs existing in the national economy that plaintiff is also able to perform, including work

10

as a “doctor’s receptionist” (Dictionary of Occupational Titles (“DOT”) No. 237.367-038) and

11

“medical case manager” (DOT No. 075.117-910). [AR at 28-29, 63-64.] Accordingly, the ALJ

12

determined that plaintiff was not disabled at any time from the alleged onset date of May 19, 2013,

13

through January 22, 2016, the date of the decision. [AR at 29.]

14
15

V.

16

THE ALJ’S DECISION

17

Plaintiff contends that the ALJ erred when he: (1) failed to consider material evidence

18

demonstrating that plaintiff suffers from rheumatoid arthritis (alternatively “RA”); and (2) rejected

19

plaintiff’s subjective symptom testimony. [JS at 4.] As set forth below, the Court agrees with

20
4

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).
5

“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

plaintiff, in part, and remands for further proceedings.

2
3

A.

FAILURE TO CONSIDER EVIDENCE OF RHEUMATOID ARTHRITIS

4

Plaintiff notes that in July 2013, her June 2013 rheumatology labs were described by her

5

treating orthopedist, Shane S. Pak, M.D., as positive for elevated antinuclear antibodies (“ANA”),

6

and increased erythrocyte sedimentation rate (“ESR”).6 [JS at 5 (citing AR at 238, 240).] In

7

August 2013, plaintiff consulted with rheumatologist Gerald Y. Ho, M.D., who, among other things,

8

noted that plaintiff’s straight-leg raising was positive bilaterally, and her gait and stance were

9

“Abnormal.” [AR at 331.] Dr. Ho ordered a rheumatoid factor test, and noted that an injection for

10

plaintiff’s lower back was “pending.” [AR at 332.] In September 2013, Dr. Pak noted that plaintiff’s

11

gait was antalgic, and that all tests for stability were “normal.” [AR at 327-28.] Dr. Pak assessed

12

plaintiff with degeneration of the lumbosacral intervertebral disc, lumbar spondylosis, lumbago,

13

and difficulty in walking. [AR at 328.] He recommended a rheumatology consultation due to

14

elevated ANA and increased ESR, an MRI of the lumbar spine without contrast, and facet blocks

15

for her pain. [AR at 328-29.] In May 2014, Dr. Ho noted that test results showed that plaintiff’s

16

“Rheumatoid factor was positive,” but he also stated that there was “no evidence of autoimmune

17

disorder SLE [systemic lupus erythematosus], RA.” [AR at 335-36.] On January 27, 2015,

18

plaintiff’s treating provider, Francisco G. Rodriguez, D.O., included rheumatoid arthritis on

19

plaintiff’s list of “Problems,” and also included it within plaintiff’s Assessment/Plan. [See, e.g., AR

20

at 446, 450.] From that date forward, rheumatoid arthritis was always included on plaintiff’s

21

treatment visit “Problems” list. [See, e.g., AR at 446, 455, 461, 467, 473, 479, 485, 491.]

22

Plaintiff observes that “the ALJ’s decision is completely void of any discussion regarding

23

[plaintiff’s] rheumatoid arthritis.” [JS at 5.] She submits that the record as a whole indicates

24

plaintiff suffers from rheumatoid arthritis and the error is not harmless “because rheumatoid

25

arthritis is often associated with severe pain, not inconsistent to the pain alleged” by plaintiff. [JS

26
27
28

6

The ANA test measures antibodies to help assess whether an individual suffers from an
autoimmune disease, such as rheumatoid arthritis, and the ESR test is a blood test that can reveal
inflammatory activity in the body. [JS at 5 nn. 1-2 (citations omitted).]
6

1

at 6 (citation omitted).] Consequently, the decision “lacks the support of substantial evidence as

2

material evidence appears to have been ignored.” [Id.] She further contends that the ALJ

3

improperly focused on evidence tending to suggest non-disability. [JS at 7 (citation omitted).]

4

Defendant responds that although plaintiff “points to evidence supporting a diagnosis of

5

rheumatoid arthritis, she does not point to any additional limitations warranted by that diagnosis

6

that the ALJ failed to include in the residual functional capacity . . . finding.”7 [JS at 6 (citation

7

omitted).] Thus, defendant contends, the ALJ did not cherry-pick the evidence in formulating

8

plaintiff’s RFC. [JS at 7.]

9

While an ALJ is not required to address all evidence presented to him, he must explain why

10

significant and probative evidence has been rejected. Vincent v. Heckler, 739 F.2d 1393, 1395

11

(9th Cir. 1984) (citation omitted). “[A]n explanation from the ALJ of the reason why probative

12

evidence has been rejected is required so that . . . [the] [C]ourt can determine whether the reasons

13

for rejection were improper.” Cotter v. Harris, 642 F.2d 700, 706-07 (3d Cir. 1981) (citation

14

omitted). Moreover, an ALJ must consider all of the relevant evidence in the record and may not

15

point to only those portions of the record that bolster his findings. See, e.g., Holohan v.

16

Massanari, 246 F.3d 1195, 1207-08 (9th Cir. 2001) (holding that an ALJ cannot selectively rely

17

on some entries in plaintiff’s records while ignoring others); Aukland v. Massanari, 257 F.3d 1033,

18

1035 (9th Cir. 2001) (“[T]he [ALJ]’s decision ‘cannot be affirmed simply by isolating a specific

19

quantum of supporting evidence.’”) (citing Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir.

20

1998)); see also Reddick, 157 F.3d at 722-23 (it is impermissible for the ALJ to develop an

21

evidentiary basis by “not fully accounting for the context of materials or all parts of the testimony

22

and reports”); Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004) (“The ALJ is not entitled

23

to pick and choose from a medical opinion, using only those parts that are favorable to a finding

24

of nondisability.”); Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (an ALJ is not

25

permitted to reach a conclusion “simply by isolating a specific quantum of supporting evidence.”);

26
27
28

7

Of course, plaintiff’s subjective symptom testimony might provide evidence of “additional
limitations.” [See Discussion infra § V.B.]
7

1

Whitney v. Schweiker, 695 F.2d 784, 788 (7th Cir. 1982) (“[A]n ALJ must weigh all the evidence

2

and may not ignore evidence that suggests an opposite conclusion.”) (citation omitted); Switzer

3

v. Heckler, 742 F.2d 382, 385-86 (7th Cir. 1984) (“The ALJ is not entitled to pick and choose from

4

a medical opinion, using only those parts that are favorable to a finding of nondisability.”).

5

In this case, it is undisputed that the ALJ did not discuss plaintiff’s diagnosis of rheumatoid

6

arthritis or provide any rationale for rejecting what would appear to be significant and probative

7

evidence of that condition. Although the ALJ provided some reasons for giving “little weight” to

8

Dr. Ho’s and Dr. Pak’s opinions of disability [AR at 26], he failed to explain why he did not consider

9

what appears to be significant and probative evidence concerning plaintiff’s diagnosis of

10

rheumatoid arthritis as reflected in Dr. Ho’s, Dr. Pak’s, and Dr. Rodriguez’ records.

11

In fact, a review of the ALJ’s decision reflects that although the ALJ included a few of Dr.

12

Rodriguez’ treatment notes in his summary of the medical evidence [see, e.g., AR at 25], he never

13

mentioned the weight he gave to the treating records of Dr. Rodriguez, who treated plaintiff from

14

November 19, 2013, to November 3, 2015. Neither did he mention Dr. Rodriguez’ diagnosis of

15

rheumatoid arthritis, or other records supporting that diagnosis.

16

Generally, even the ALJ’s summary of Dr. Rodriguez’ treatment records does not withstand

17

scrutiny. For instance, the ALJ cited to some of Dr. Rodriguez’ records (as well as the records of

18

other providers) to support his statement that the record as a whole reflected some tenderness

19

of plaintiff’s knees on examination, but also that there was generally an absence of swelling, “full

20

range of motion, intact stability, and normal strength.” [AR at 24-25 (citations omitted).] A review

21

of Dr. Rodriguez’ treatment notes, however, including those cited to by the ALJ, reflect not only

22

knee tenderness, but limited range of motion of the knees [AR at 379, 393, 403, 450, 459, 489];

23

irregular gait [AR at 393, 403, 450, 459, 464, 489]; bilateral knee pain [AR at 458]; and abnormal

24

motor strength.8 [AR at 489.]

25
8

26
27
28

The ALJ also incorrectly stated that plaintiff’s “straight-leg-raising-tests were always
negative . . . ,” and that “her hip examinations showed full range of motion, intact stability, and full
strength.” [AR at 24 (emphasis added).] However, on August 26, 2013, Dr. Ho’s examination
reflected a positive straight-leg-raising test result [AR at 331], and Dr. Rodriguez’ records clearly
(continued...)
8

1

With respect to plaintiff’s back pain, the ALJ -- citing only to one of Dr. Rodriguez’ treatment

2

notes -- stated that “[o]n January 27, 2015, [plaintiff] had tenderness and limited range of motion

3

of the back but she had normal tone and motor strength.” [AR at 25 (citing AR at 450).] Citing the

4

same note, he observed that plaintiff “had an irregular gait but her cranial nerves, sensation,

5

reflexes, and coordination were intact.” [Id. (citing AR at 450).] The ALJ failed to mention Dr.

6

Rodriguez’ many other treatment notes reflecting decreased range of motion in the thoracolumbar

7

area, often with guarding on forward flexion and extension. [See, e.g., AR at 380, 385, 393, 403,

8

408, 413, 423, 450, 459 (“marked decrease ROM and guarding during forward flexion and

9

extension”) (emphasis added), 483 (“marked decrease ROM on all planes. . . “) (emphasis added),

10

489 (same). ] In fact, it appears that the only visits where Dr. Rodriguez did not assess and/or

11

report on plaintiff’s range of motion in the lumbar spine were visits where plaintiff was complaining

12

of and being seen for problems or symptoms unrelated to her back (or other) pain. [See, e.g., AR

13

at 395-99 (visit to “go over . . . lab results”); 415-19 (mammogram results); 425-29 (blood in stool);

14

430-34 (mammography ultrasound results); 435-39 (medication refill); 440-45 (right ear pain and

15

medication refill); 461-66 (x-ray results); 467-72 (medication refill); 473-78 (sore throat and ear

16

pain); 491-97 (cough, fever, congestion, sore throat, and ear pain).]

17

Additionally, in finding that Dr. Rodirguez’ treatment notes “do not support [plaintiff’s]

18

allegations of disabling symptoms,” the ALJ failed to explain or provide support for his implied

19

findings that Dr. Rodriguez’ note reflecting “tenderness and limited range of motion” of the back

20

is somehow inconsistent with “normal tone and motor strength,” or that his note reflecting an

21

irregular gait is somehow inconsistent with intact cranial nerves, sensation, reflexes, and

22

coordination. [AR at 24-25.] Neither is there any evidence that Dr. Rodriguez found these

23

diagnostic test results to be inconsistent. [AR at 449-52.] Thus, in addition to the ALJ’s

24

statements not providing a clear and convincing reason to discount plaintiff’s subjective symptom

25
26
27
28

8

(...continued)
reflect limited range of hip motion at many of plaintiff’s treatment visits. [See, e.g., AR at 379, 393,
403, 450, 458, 489.]
9

1

testimony,9 they also would not provide a specific and legitimate reason to reject Dr. Rodriguez’

2

findings.

3

contradicted, it may be rejected for specific and legitimate reasons that are supported by

4

substantial evidence in the record). The ALJ may not substitute his lay opinion (here, in implicitly

5

discounting Dr. Rodriguez’ findings based on the ALJ’s unsupported finding that limited range of

6

motion is inconsistent with normal tone and strength, and that an irregular gait is inconsistent with

7

intact cranial nerves, sensation, reflexes, and coordination), for that of a professional. See Tackett

8

v. Apfel, 180 F.3d 1094, 1102-03 (9th Cir. 1999) (ALJ erred in rejecting physicians’ opinions and

9

finding greater RFC based on claimant’s testimony that he took a road trip; there was no medical

10

evidence to support the ALJ’s determination); Banks v. Barnhart, 434 F. Supp. 2d 800, 805 (C.D.

11

Cal. 2006) (noting that an ALJ “‘must not succumb to the temptation to play doctor and make [his]

12

own independent medical findings’”) (quoting Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996));

13

Day, 522 F.2d at 1156 (an ALJ is forbidden from making his or her own medical assessment

14

beyond that demonstrated by the record). This is exactly what the ALJ did here.

See Carmickle, 533 F.3d at 1164 (where the opinion of a treating provider is

15

Finally, the ALJ noted that “throughout late 2014 and 2015, [plaintiff] was using a cane

16

sporadically” [AR at 25 (citing nine of Dr. Rodriguez’ treatment records reflecting that plaintiff was

17

using a cane to ambulate) (emphasis added)], but then stated that “on August 5, 2015, there was

18

no mention of cane usage, and her musculoskeletal examination was normal.” [AR at 25 (citing

19

AR at 473-77).] Not only is this a clear attempt to “cherry pick” a record to support the ALJ’s

20

nondisability finding, the statements are not even accurate -- at plaintiff’s August 5, 2015,

21

treatment visit for complaints of a sore throat, cough, and ear pain, Dr. Rodriguez clearly stated

22

that plaintiff was ambulating with a cane. [AR at 477 (“Ambulation: ambulation with cane”).]

23

Additionally, Dr. Rodriguez did not state that plaintiff’s musculoskeletal examination was “normal.”

24

[AR at 477.] He merely reported that there was “no cyanosis, edema, varicosities, or palpable

25

cord” with respect to plaintiff’s extremities. [Id.] As discussed above, it does not appear that Dr.

26
27
28

9

The ALJ’s treatment of plaintiff’s subjective symptom testimony is discussed in section V.B,

infra.
10

1

Rodriguez performed a full musculoskeletal examination when plaintiff sought treatment for non-

2

pain related symptoms -- as she did on August 5, 2015. [See AR at 476-77.]

3

Because the ALJ failed to even mention plaintiff’s diagnosis of rheumatoid arthritis, and to

4

discuss the weight given to Dr. Rodriguez’ findings and opinion, and because many of the ALJ’s

5

findings are not supported by substantial evidence, remand is warranted on this issue. See Marsh

6

v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015) (ALJ’s failure to “even mention” the treating doctor

7

and his notes and opinions was not harmless error).

8
9

B.

SUBJECTIVE SYMPTOM TESTIMONY

10

Plaintiff contends the ALJ failed to articulate legally sufficient reasons for rejecting plaintiff’s

11

subjective symptom testimony. [JS at 7.] She argues that her work history “cannot be ignored”

12

when assessing her testimony as she earned “over $40,000 every year from 1992 until she

13

stopped working in 2013.” [JS at 13.] Since becoming unable to work, she has been evicted from

14

the home she rented for more than 19 years and now lives in a homeless shelter. [JS at 13; AR

15

at 39.] She also notes that her testimony is consistent with her rheumatoid arthritis diagnosis as

16

discussed above. [JS at 11.]

17

On March 28, 2016, after the ALJ’s assessment in this case, Social Security Ruling

18

(“SSR”)10 16-3p went into effect. See SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016). SSR 16-3p

19

supersedes SSR 96-7p, the previous policy governing the evaluation of subjective symptoms. Id.

20

at *1. In SSR 16-3p the Commissioner indicates that “we are eliminating the use of the term

21

‘credibility’ from our sub-regulatory policy, as our regulations do not use this term.” Id. Moreover,

22

“[i]n doing so, we clarify that subjective symptom evaluation is not an examination of an

23

individual’s character[;] [i]nstead, we will more closely follow our regulatory language regarding

24

symptom evaluation.” Id. Thus, the adjudicator “will not assess an individual’s overall character

25
26
27
28

10

“SSRs do not have the force of law. However, because they represent the Commissioner’s
interpretation of the agency’s regulations, we give them some deference. We will not defer to SSRs
if they are inconsistent with the statute or regulations.” Holohan, 246 F.3d at 1202 n.1 (citations
omitted).
11

1

or truthfulness in the manner typically used during an adversarial court litigation. The focus of the

2

evaluation of an individual’s symptoms should not be to determine whether he or she is a truthful

3

person.” Id. at *10. Factors to be considered in evaluating the intensity, persistence, and limiting

4

effects of an individual’s symptoms include:

5

frequency, and intensity of pain or other symptoms; (3) factors that precipitate and aggravate the

6

symptoms; (4) the type, dosage, effectiveness, and side effects of any medication an individual

7

takes or has taken to alleviate pain or other symptoms; (5) treatment, other than medication, an

8

individual receives or has received for relief of pain or other symptoms; (6) any measures other

9

than treatment an individual uses or has used to relieve pain or other symptoms; and (7) any other

10

factors concerning an individual’s functional limitations and restrictions due to pain or other

11

symptoms. SSR 16-3p, 2016 WL 1119029, at *7. The ALJ is instructed to “consider all of the

12

evidence in an individual’s record,” “to determine how symptoms limit ability to perform work-

13

related activities.” Id. at *2.

(1) daily activities; (2) the location, duration,

14

Here, the ALJ found that plaintiff’s statements about her symptoms were “not entirely

15

credible.” [AR at 24.] Specifically, he appears to have discounted her “credibility” for the following

16

reasons: (1) the record reveals routine and conservative treatment; (2) the positive objective

17

clinical and diagnostic findings do not reveal any acute findings and do not support more functional

18

limitations; (3) treatment has been “generally successful in controlling” her symptoms; and (4) her

19

activities of daily living “are not limited to the extent one would expect.” [AR at 25-26.]

20
21

In light of the ALJ’s review on remand of the medical evidence, plaintiff’s subjective
symptom testimony will also need to be reconsidered. SSR 16-3p shall apply on remand.

22
23

VI.

24

REMAND FOR FURTHER PROCEEDINGS

25

The Court has discretion to remand or reverse and award benefits. McAllister v. Sullivan,

26

888 F.2d 599, 603 (9th Cir. 1989). Where no useful purpose would be served by further

27

proceedings, or where the record has been fully developed, it is appropriate to exercise this

28

discretion to direct an immediate award of benefits. See Lingenfelter v. Astrue, 504 F.3d 1028,
12

1

1041 (9th Cir. 2007); Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004). Where there are

2

outstanding issues that must be resolved before a determination can be made, and it is not clear

3

from the record that the ALJ would be required to find plaintiff disabled if all the evidence were

4

properly evaluated, remand is appropriate. See Benecke, 379 F.3d at 593-96.
In this case, there are outstanding issues that must be resolved before a final determination

5
6

can be made.

In an effort to expedite these proceedings and to avoid any confusion or

7

misunderstanding as to what the Court intends, the Court will set forth the scope of the remand

8

proceedings. First, because the ALJ failed to properly consider the record relating to plaintiff’s

9

rheumatoid arthritis, the ALJ on remand shall reassess the medical evidence of record. In

10

assessing the medical opinion evidence of all of the providers, the ALJ must explain the weight

11

afforded to each opinion and provide legally adequate reasons for any portion of the opinion that

12

the ALJ discounts or rejects, including a legally sufficient explanation for crediting one doctor’s

13

opinion over any of the others. Second, the ALJ on remand, in accordance with SSR 16-3p, shall

14

reassess plaintiff’s subjective allegations and either credit her testimony as true, or provide

15

specific, clear and convincing reasons, supported by substantial evidence in the case record, for

16

discounting or rejecting any testimony. Finally, if warranted, the ALJ shall reassess plaintiff’s RFC

17

and determine at step four, with the assistance of a VE if necessary, whether plaintiff is capable

18

of performing her past relevant work as a social services worker.11 If plaintiff is not so capable,

19

or if the ALJ determines to make an alternative finding at step five, then the ALJ shall proceed to

20

step five and determine, with the assistance of a VE if necessary, whether there are jobs existing

21

in significant numbers in the regional and national economy that plaintiff can still perform.

22

/

23

/

24

/

25
26
27
28

11

Nothing herein is intended to disrupt the ALJ’s step four finding that plaintiff is unable to
perform her past relevant work as a charge nurse.
13

1

VII.

2

CONCLUSION

3

IT IS HEREBY ORDERED that: (1) plaintiff’s request for remand is granted; (2) the

4

decision of the Commissioner is reversed; and (3) this action is remanded to defendant for further

5

proceedings consistent with this Memorandum Opinion.

6
7
8
9

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.

10
11

DATED: January 30, 2017
PAUL L. ABRAMS
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14