Elva E. Lopez v. Carolyn W. Colvin

Filing 25

MEMORANDUM AND OPINION by Magistrate Judge Gail J. Standish regarding Complaint. For all of the foregoing reasons, IT IS ORDERED that: (1) the decision of the Commissioner is REVERSED and this matter REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Memorandum Opinion and Order; and (2) Judgment be entered in favor of Plaintiff. (ec)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Plaintiff

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NANCY A. BERRYHILL1, Acting
Commissioner of Social Security,

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Defendant.

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I.

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MEMORANDUM OPINION AND
ORDER

v.

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Case No. 2:16-cv-04169-GJS

ELVA E. LOPEZ,

PROCEDURAL HISTORY

Plaintiff Elva E. Lopez (“Plaintiff”) filed a complaint seeking review of
Defendant Commissioner of Social Security’s (“Commissioner”) denial of her
application for Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”). The parties filed consents to proceed before the undersigned
United States Magistrate Judge [Dkts. 11, 12] and briefs addressing disputed issues
in the case [Dkt. 19 (“Pltf.’s Br.”), Dkt. 22(“Def.’s Br.”), and Dkt. 23 (“Pltf.’s
Reply”).] The Court has taken the parties’ briefing under submission without oral

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The Court notes that Nancy A. Berryhill became the Acting Commissioner of the
Social Security Administration on January 23, 2017. Accordingly, pursuant to Rule
25(d) of the Federal Rules of Civil Procedure, the Court orders that the caption be
amended to substitute Nancy A. Berryhill for Carolyn W. Colvin as the defendant in
this action.

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argument. For the reasons discussed below, the Court finds that this matter should

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be remanded for further proceedings.
II.

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ADMINISTRATIVE DECISION UNDER REVIEW

On January 31, 2013, Plaintiff filed an application for both DIB and SSI,

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alleging that she became disabled as of February 2, 2012. [Dkt. 15, Administrative

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Record (“AR”) 12, 64-79, 80-95, 98-119, 120-141.] The Commissioner denied her

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initial claim for benefits on March 22, 2013 and upon reconsideration on September

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9, 2013. [AR 144-148; 155-163.] On July 30, 2014, a hearing was held before

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Administrative Law Judge (“ALJ”) Christopher R. Inama. [AR 31-63.] On

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November 7, 2014, the ALJ issued a decision denying Plaintiff’s request for

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benefits. [AR 9-30.] Plaintiff requested review from the Appeals Council, which

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denied review on April 11, 2016. [AR 1-6.]
Applying the five-step sequential evaluation process, the ALJ found that

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Plaintiff was not disabled. See 20 C.F.R. §§ 404.1520(b)-(g)(1); 416.920(b)-(g)(1).

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At step one, the ALJ concluded that Plaintiff has not engaged in substantial gainful

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activity since February 2, 2012, the alleged onset date, through December 31, 2016,

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her date last insured. [AR 14.] At step two, the ALJ found that Plaintiff suffered

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from the following severe impairments: degenerative disc disease of the cervical and

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lumbar spine regions, chronic bilateral shoulder degenerative joint disease and

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tendinitis, major depressive disorder, and generalized anxiety disorder. [Id. (citing

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20 C.F.R. §§ § 404.1520(c) and 416.920(c)).] Next, the ALJ determined that

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Plaintiff did not have an impairment or combination of impairments that meets or

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medically equals the severity of one of the listed impairments. [AR 15 (citing 20

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C.F.R. Part 404, Subpart P, Appendix 1; 20 C.F.R. §§ 404.1520(d), 404.1525,

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404.1526, 416.920(d), 416.925, and 416.926).]

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The ALJ found that Plaintiff had the following residual functional capacity
(RFC):

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[L]ight work as defined in 20 CFR 404.1567(b) and
416.967(b). She can occasionally climb ramps and stairs,
and can occasionally balance, stoop, kneel, crouch, and
crawl, but cannot climb ladders, ropes, or scaffolds. The
claimant is limited to occasional overhead reaching, with
her bilateral upper extremities, and frequent lateral
reaching, handling, and fingering. She is limited to
occasional looking up and down and turning her head left
and right. She is limited from working environments with
even moderate exposures to hazards, such as unprotected
heights and dangerous machinery. She can perform
simple, routine, repetitive tasks, make simple work-related
decisions, and adapt to a few workplace changes. She is
capable of occasional interaction with supervisors and coworkers, and occasional brief, superficial contact with the
public.

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[AR 17-18.] Applying this RFC, the ALJ found that Plaintiff had no past relevant

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work, but determined that based on her age (41 years old), high school education,

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and ability to communicate in English, she could perform representative occupations

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such as sales attendant (Dictionary of Occupational Titles (“DOT”) 299.677-010),

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parking lot attendant (DOT 915.473-010), and usher (DOT 344.677-014) and, thus,

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is not disabled. [AR 24-25.]

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III.

GOVERNING STANDARD

Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to

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determine if: (1) the Commissioner’s findings are supported by substantial evidence;

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and (2) the Commissioner used correct legal standards. See Carmickle v. Comm’r

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Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d

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1071, 1074 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a

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reasonable mind might accept as adequate to support a conclusion.” Richardson v.

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Perales, 402 U.S. 389, 401 (1971) (internal citation and quotations omitted); see

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also Hoopai, 499 F.3d at 1074. The Court will uphold the Commissioner’s decision
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when the evidence is susceptible to more than one rational interpretation. Burch v.

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Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only

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the reasons stated by the ALJ in his decision “and may not affirm the ALJ on a

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ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.

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2007).
IV.

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DISCUSSION

Plaintiff contends that the ALJ: (1) erred in the assessment of Plaintiff’s

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credibility; (2) failed to properly find that Plaintiff’s headaches were a severe

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impairment; and (3) failed to find that Plaintiff suffers from a listed impairment

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entitling her to receive benefits at step three. [Pltf.’s Br. at 3-9.] As set forth below,

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the Court agrees with Plaintiff, in part, and remands the matter for further

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proceedings.

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Plaintiff first claims that the ALJ failed to state sufficient reasons for

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discounting her credibility. [Pltf.’s Br. at 6-9.] Plaintiff testified that she suffers

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from significant pain and limitations due to her impairments. [AR 37-55.] She

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stated that she stays home in bed most of the day; has chronic pain when she bends,

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reaches, and kneels; and has migraine headaches that affect her memory and

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concentration. [AR 251, 267.] She also reported numbness in her fingers, hands

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and wrists and stated that she can walk two miles, albeit slowly. [AR 43-44.]

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The ALJ found Plaintiff’s subjective symptom testimony not fully credible.

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[AR 19-24.] The ALJ noted that although Plaintiff’s medically determinable

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impairments could reasonably be expected to cause some of Plaintiff’s alleged

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symptoms, Plaintiff’s allegations concerning the intensity, persistence, and limiting

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effects of her symptoms were not credible to the extent alleged. [AR 23-24.] As

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there was no affirmative evidence of malingering in this case, the ALJ was obligated

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to provide “specific, clear and convincing reasons” for rejecting Plaintiff’s

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subjective symptom testimony. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.

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1996); see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“Unless there
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is affirmative evidence showing that the claimant is malingering, the

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Commissioner’s reasons for rejecting the claimant’s testimony must be ‘clear and

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convincing.’” (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)).

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The ALJ gave two reasons to reject Plaintiff’s credibility: (1) inconsistencies

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between Plaintiff’s testimony regarding her daily activities; and (2) lack of objective

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evidence to support Plaintiff’s claim of severe pain and limitations. The Court takes

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each in turn.

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First, the ALJ asserted that Plaintiff’s claim to Dr. Shamie that she used to

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enjoy running and exercising but could not do so after her injury was inconsistent

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with statements made in her function report indicating that she was able to take her

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son to school, care for her son, and care for her personal needs. [AR 23; compare

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246-254 with 837.] An ALJ may employ ordinary techniques of credibility

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evaluation and may take into account prior inconsistent statements or a lack of

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candor by the witness in making a credibility determination. Fair v. Bowen, 885

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F.2d 597, 604 n. 5 (9th Cir. 1989). However, in this case, it is not apparent from the

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record how Plaintiff’s statements made in her function report regarding the minimal

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activities that she can perform inside and outside the home to take care of herself

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and her child conflict with Plaintiff’s reports to Dr. Shamie regarding her ability to

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exercise. As the ALJ admits, Plaintiff “did not specifically state her ability to run or

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exercise in the function report,” thus, the ALJ’s conclusion that these statements are

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contradictory is simply not supported by the record. [AR 23.]

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In addition, inconsistency between a claimant’s daily activity and the alleged

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severity of the claimant’s symptoms can also support an adverse credibility

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determination. See Fair, 885 F.2d at 603. However, Plaintiff’s admission regarding

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her ability to care for her son and her personal needs is not materially inconsistent

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with her allegedly disabling symptomatology. See Vertigan v. Halter, 260 F.3d

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1044, 1049-50 (9th Cir. 2001) (“the mere fact that a plaintiff has carried on certain

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daily activities, such as grocery shopping, driving a car, or limited walking for
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exercise, does not in any way detract from her credibility as to her overall

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disability”). Further, “many home activities are not easily transferable to what may

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be the more grueling environment of the workplace, where it might be impossible to

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periodically rest or take medication.” Fair, 885 F.2d at 603; Garrison v. Colvin,

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759 F.3d 995, 1016 (9th Cir. 2014) (“We have repeatedly warned that ALJs must be

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especially cautious in concluding that daily activities are inconsistent with testimony

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about pain, because impairments that would unquestionably preclude work and all

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the pressures of a workplace environment will often be consistent with doing more

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than merely resting in bed all day.”). Thus, the record fails to show that Plaintiff’s

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asserted home activities are inconsistent with her allegedly disabling

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symptomatology.

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Second, the ALJ found that Plaintiff’s subjective complaints were not

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supported by the medical findings. [AR 19-23.]. However, the ALJ may not make

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a negative credibility finding “solely because” the claimant’s symptom testimony “is

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not substantiated affirmatively by objective medical evidence.” Robbins v. Comm’r

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of Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006); Bunnell v. Sullivan, 947 F.2d

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341, 345 (9th Cir. 1991) (“an adjudicator may not reject a claimant’s subjective

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complaints based solely on a lack of objective medical evidence to fully corroborate

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the alleged severity of the [symptoms].”). Thus, a lack of corroborating objective

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evidence was an insufficient reason, on its own, for the ALJ to find Plaintiff less

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than fully credible. Accordingly, for the reasons stated above, the Court finds that

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the ALJ failed to provide specific, clear and convincing reasons for discounting

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Plaintiff’s subjective symptom testimony.2

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The Court has not reached the other two issues raised by Plaintiff except insofar as
to determine that reversal with a directive for the immediate payment of benefits
would not be appropriate at this time. However, the ALJ should explore and resolve
these additional issues on remand, as he/she sees appropriate.
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V.

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CONCLUSION

The decision of whether to remand for further proceedings or order an

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immediate award of benefits is within the district court’s discretion. Harman v.

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Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). When no useful purpose would be

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served by further administrative proceedings, or where the record has been fully

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developed, it is appropriate to exercise this discretion to direct an immediate award

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of benefits. Id. at 1179 (“the decision of whether to remand for further proceedings

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turns upon the likely utility of such proceedings”). But when there are outstanding

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issues that must be resolved before a determination of disability can be made, and it

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is not clear from the record the ALJ would be required to find the claimant disabled

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if all the evidence were properly evaluated, remand is appropriate. Id.

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The Court finds that remand is appropriate because the circumstances of this

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case suggest that further administrative review could remedy the ALJ’s errors. See

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INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative

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determination, the proper course is remand for additional agency investigation or

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explanation, “except in rare circumstances”); Treichler v. Comm’r of Soc. Sec.

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Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) (remand for award of benefits is

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inappropriate where “there is conflicting evidence, and not all essential factual

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issues have been resolved”); Harman, 211 F.3d at 1180-81.

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For all of the foregoing reasons, IT IS ORDERED that:

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(1) the decision of the Commissioner is REVERSED and this matter

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REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further

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administrative proceedings consistent with this Memorandum Opinion and

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Order; and

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(2) Judgment be entered in favor of Plaintiff.

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IT IS SO ORDERED.

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DATED: September 21, 2017

__________________________________
GAIL J. STANDISH
UNITED STATES MAGISTRATE JUDGE

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