Loretta Martin v. Carolyn W. Colvin
Filing
37
MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Commissioner is reversed, and the matter is remanded for further proceedings. (mz)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION
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12 LORETTA MARTIN,
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Plaintiff,
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v.
NANCY A. BERRYHILL,1 Acting
Commissioner of Social
Security,
Defendant.
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Case No. CV 16-08167-AS
MEMORANDUM OPINION AND
ORDER OR REMAND
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20
PROCEEDINGS
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On November 2, 2016, Plaintiff filed a Complaint seeking review of
23 the denial of her application for Supplemental Security Income. (Docket
24 Entry No. 1).
The parties have consented to proceed before the
25
undersigned United States Magistrate Judge.
(Docket Entry Nos. 17-18).
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27
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On
April
13,
2017,
Defendant
filed
1
an
Answer
along
with
the
Nancy A. Berryhill is now the Acting Commissioner of the
Social Security Administration and is substituted in for Acting
Commissioner Caroyln W. Colvin in this case. See 42 U.S.C. § 205(g).
1
1 Administrative Record (“AR”).
(Docket Entry Nos. 30-31).
The parties
2 filed a Joint Stipulation (“Joint Stip.”) on September 7, 2017, setting
3
forth their respective positions regarding Plaintiff’s claims.
4
(Docket
Entry No. 36).
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The Court has taken this matter under submission without oral
8 argument.
See C.D. Cal. L.R. 7-15; “Order Re: Procedures in Social
9 Security Case,” filed November 16, 2016 (Docket Entry No. 15).
10
11
BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
12
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On January 23, 2013, Plaintiff, formerly employed as housekeeper
15 and stocker at a retail store (see AR 56-57, 272-74, 316-19), filed an
16 application for Supplemental Security Income, alleging a disability
17 since August 21, 2009.
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19
(AR 228-29).
On January 28, 2015, the Administrative Law Judge (“ALJ”), Jesse J.
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Pease, heard testimony from Plaintiff (who was represented by counsel)
and vocational expert Victoria Rae. (See AR 55-70).
On February 11,
23 2015, the ALJ issued a decision denying Plaintiff’s application.
24 AR 25-33).
(See
After determining that Plaintiff had severe impairments –-
25 “degenerative disc disease, lumbar spine, L4-5; mild obesity; asthma;
26 lumbar spine sprain; carpal tunnel syndrome, right hand, mild; patellar
27 tendinitis and chondromalacia, left knee; and osteochondroma of the
28
2
1 right ankle” (AR 27-28)2 –- but did not have an impairment or combination
2 of impairments that met or medically equaled the severity of one of the
3
Listed Impairments (AR 28-29), the ALJ found that Plaintiff had the
4
residual functional capacity (“RFC”)3 to perform light work4 with the
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6
following limitations: can perform postural activities occasionally; can
7 use the right dominant hand frequently; and cannot be exposed to
8 excessive air pollutants.
9 Plaintiff
was
able
(AR 29-32).
to
perform
The ALJ then determined that
past
relevant
work
as
a
10 housekeeper/cleaner as actually performed and as generally performed (AR
11 32-33), and therefore found that Plaintiff was not disabled within the
12
meaning of the Social Security Act.
(AR 33).
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15
Plaintiff requested that the Appeals Council review the ALJ’s
16 Decision.
(See AR 17).
The request was denied on September 6, 2016.
17 (See AR 1-5). The ALJ’s Decision then became the final decision of the
18 Commissioner, allowing this Court to review the decision. See 42 U.S.C.
19 §§ 405(g), 1383(c).
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27
28
2
The
ALJ
found
that
Plaintiff’s
impairments of mild
chondromalacia of the right knee and postpartum depression were
nonsevere. (AR 27-28).
3
A Residual Functional Capacity is what a claimant can still do
despite existing exertional and nonexertional limitations.
See 20
C.F.R. § 416.945(a)(1).
4
“Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10 pounds.”
20 C.F.R. § 416.967(b).
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1
PLAINTIFF’S CONTENTIONS
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Plaintiff alleges that the ALJ failed to properly: (1) assess the
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opinion
of
the
orthopedic
Plaintiff’s credibility.
consultative
examiner;
and
(2)
assess
(See Joint Stip. at 4-9, 14-20, 24-25).
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DISCUSSION
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After consideration of the record as a whole, the Court finds that
Plaintiff’s
second
claim
of
error
warrants
a
remand
for
further
12
consideration.
Since the Court is remanding the matter based on
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Plaintiff’s
second
claim
of
error,
the
Court
will
not
address
15 Plaintiff’s first claim of error.
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17 A.
The ALJ Did Not Properly Assess Plaintiff’s Credibility
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Plaintiff
asserts
that
the
ALJ
failed
to
provide
clear
and
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convincing reasons reasons for rejecting Plaintiff’s testimony about her
symptoms.
(See Joint Stip. at 15-20, 24-25).
Defendant asserts that
23 the ALJ properly considered Plaintiff’s testimony and provided valid
24 reaons for discounting Plaintiff’s testimony.
25 24).
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(See Joint Stip. at 20-
1
Plaintiff
made
the
following
statements
in
an
“Exertion
2 Questionnaire” dated August 5, 20115:
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She lives alone/with family (children) in an apartment.
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She is not able to work because she just lies in bed, and she
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sometimes cannot even get to the restroom. On an average day,
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she goes on walks, cleans and watches television.
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for 2 to 3 miles,6 which takes about 2 hours, but causes her
She walks
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body, especially her back and knees, to hurt.
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stairs –- 12 steps -- but it is painful (she has to climb
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stairs to get to school and stores).
She climbs
She does not lift
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anything but blankets and other things lying around her house.
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She carries the following items:
a bag for the store (1/2
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minute, once a week); a plate (10 feet, every day); and a
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laundry basket (20 feet, once a week). When asked whether she
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does her own grocery shopping, she checked off “yes” and “no.”
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She cleans her own home, by vaccuum, washing dishes, picking
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up and making her bed, all which take 3 hours.
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She has
difficulty finishing her housework. She does not drive a car,
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work on cars, or do yard work.
She sleeps for 4 hours, and
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25
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Plaintiff’s statements in the various reports are difficult to
26 decipher because her handwriting is not very legible and because her
responses to questions sometimes are not clear.
Plaintiff acknowledges
27 that she is not able to write or spell well (see AR 335).
28
6
When summarizing Plaintiff’s testimony in this “Exertion
Questionnaire,” the ALJ wrote that “[s]he stated she was able to walk
for two to three minutes.” (AR 29).
5
1
requires 2 naps a day for about an hour.
2
her hand and a splint.
She uses a brace for
(AR 276-78).
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4
Plaintiff
made
the
following
statements
in
an
undated
“Pain
5
6
Questionnaire”:
7
8
She has pain in her right knee, lower back, left hand and
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right shoulder, and the pain spreads to her arms and legs.
10
She gets pain when she does too much walking, sitting or
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carrying, and lasts for 2 hours.
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Resting for 1 hour relieves
her pain. For 2 months, she has taken prescribed Acetaminopen
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Codeine 3 (which relieves the pain in an hour), 2 to 3 times,
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once every 6 years.
The medication does not cause any side
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effects. Surgery has not been scheduled to attempt to relieve
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the pain.
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and household chores.
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activities like running, jogging and playing outdoors with her
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children, i.e., basketball and football (she does not recall
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Her usual daily activities are walking, shopping
The pain prevents her from doing past
when the pain first began to affect her activities).
She is
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able to do errands such as going to the post office or grocery
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store without assistance (she uses public transportation), and
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she is able to do light housekeeping chores (i.e., dusting,
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cooking, etc.) without assistance.
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miles outside her home.
She is able to walk 3
She is able to stand for 20 to 30
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1
minutes at a time and to sit for 30 to 40 minutes at a time.
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(AR 298-300).
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Plaintiff made the following statements in a “Pain Questionnaire”
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dated March 31, 2013:
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The pain is located on her neck, knees, back and right
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hand/arm and spreads to her legs, chest, shoulders and arms.
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The pain began 6 months to a couple of years ago, and occurs
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every day or every other day.
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The pain is caused by walking,
climbing stairs, some cleaning, and carrying.
The pain lasts
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for 2 to 4 hours.
Resting for about 1/2 hour relieves the
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pain. She has been taking prescribed Hydrocodone/Acetaminophen
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(4 pills a day) every day for 3 to 4 months.
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relieves the pain in about 30 minutes.
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have any side effects.
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relieve the pain.
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things to assist in relieving the pain.
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The medicine
The medicine does not
No surgery is scheduled to attempt to
She wears a wrist brace and does other
Her usual daily
activities are walking, shopping and driving.
She cannot do
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past activities like driving, running, jogging, and walking
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far because of the pain.
The pain first started to affect her
25
activities more than 5 years ago.
She has to stop an activity
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because of pain after 5 minutes.
She is able to do errands
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such as going to the post office or grocery store without
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assistance (she uses public transportation), and she is able
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to do light housekeeping chores (i.e., dusting, cooking, etc.)
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without assistance.
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house.
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She is able to walk 5 miles outside her
She is able to stand 30 minutes at a time, and she is
able to sit for 90 minutes at a time.
(AR 313-15).
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Plaintiff made the following statements in a “Function Report -
8 Adult” dated August 2013 (see AR 328-35).
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10
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She
lives
apartment.
alone/with
family
(her
children)
in
an
She cannot work because she cannot stand or sit
for a long period of time (because of her back), because of
13
her hurt right hand, and because of a possibly broken ankle.
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15
(AR 328, 335).
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She takes care of her children; she feeds them, takes
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them to school, and bathes them.
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pets.
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face/teeth,
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She does not take care of
With respect to her daily activities, she washes her
bathes
her
children,
cooks
breakfast,
does
housework, watches television, sits on a sofa and lies down.
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(See AR 329).
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As a result of her impairments, she no longer is able to
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run, jog, climb, or play at the park with her children.
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impairments affect her sleep; she cannot sleep, she has pain
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in her back and legs, and she ends up playing “lots of
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Her
1
mindgames.” Her impairments affect her abilities to dress (it
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takes her about 45 minutes instaead of 10 minutes), to care
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for her hair (her arm and hand hurt), and to use the toilet
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(she gets stuck sitting on the toilet).
She needs special
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reminders to take care of personal needs and grooming and to
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take medicine (she leaves messages on her cell phone in order
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not to forget).
(See AR 329-30).
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She prepares her own meals (i.e., sandwiches, complete
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meals) daily (3 1/2 hours). Her impairments have affected her
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cooking since she drops things.
Her househould chores are
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laundry (4 hours, 2 times a week) and cleaning up (4 hours
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daily).
She
goes
outside,
walking
and
using
public
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transportation, 2 to 3 times a week.
17
but does not drive.
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for food, children’s clothes, school supplies, bedding, and
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kitchen and bath items (2 to 3 hours, 2 times a month).
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is able to pay bills, count change, handle a saving account,
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She can go out alone,
She shops in stores, by phone and by mail
and use a checkbook or money orders.
She
(See AR 330-31).
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Her hobbies and interests are running, jogging, reading
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(every day), playing sports, playing with her children (3
26
hours daily), and watching television (4 1/2 hours daily)
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Since her impairments began, she cannot run or jog, and she
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does not play well with her children because of her pain (but
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“she still do[es] what a mother has to do”).
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with others 3 times a month, going out to eat, going to malls,
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and talking on the phone once a day, and getting together with
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a friend once a week.
She spends time
She goes to church and her mother’s and
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sister’s house 25 times a month, but needs to be accompanied
and to be reminded to go places. (See AR 332-33).
8
9
Her impairments affect her lifting (she can lift only 10
10
pounds), squatting, bending, standing, reaching, walking,
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sitting, kneeling, seeing, understanding and using hands. She
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can walk for 10 to 20 minutes before he has to rest, and then
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must rest for 30-45 minutes before she can resume walking.
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She can pay attention for 5 to 10 minutes.
She cannot finish
16
what she starts. She cannot follow written instructions. She
17
cannot follow spoken instructions very well; she has to be
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told 3 to 4 times.
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figures very well when they are wrong or lie to her.
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never been fired or laid off from a job because of problems
21
She does not get along with authority
getting along with other people.
She has
She does not handle stress
22
23
very well; she just goes for a walk, takes a long shower,
24
plays music and cries. She does not handle changes in routine
25
well.
26
prescribed glasses. (See AR 333-34).
She uses a cane, a prescribed brace/splint, and
27
28
10
1
Plaintiff made the following statements in a “Pain Questionnaire”
2 dated September 13, 2013:
3
4
Beginning in August 2008, she has had pain in her lower
5
6
back, right shoulder, knees and right hand.
The pain is an
7
achey, stabbing sharp pain, which spreads to her neck, up her
8
back and down to her feet.
9
and her knees to go out so she cannot walk.
The pain causes her back to lock
Every day she has
10
the pain, which generally lasts 2-4 hours.
11
activity that brings on the pain. Because of the pain she can
12
Walking is one
no longer run, jog, hold things (i.e., at the market), or play
13
with her children at the park.
She puts on hot packs, takes
14
15
16
long, hot baths, and wears a brace to relieve the pain.
(AR
335-37).
17
18
Plaintiff testified at the January 28, 2015 administrative hearing
19 as follows (see AR 52-65):
20
21
She completed the 11th grade.
She has five children
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23
ranging from 20 years old to 2 years old (20, 18, 14, 7 and
24
2), and only the 20-year-old does not live with her. She does
25
not have to do all the cooking and cleaning; her 18-year-old
26
and her 15-year-old children (both of whom have disabilities)
27
help her.
28
around 2009.
Her last job was as a full-time hotel housekeeper
She worked there from July 2007 to August 2009,
11
1
when she got hurt and was told not to come back.
2
then, she worked for a couple of years as a stocker at a
3
retail store.
4
Prior to
She is not able to work because of a bad back,
a right broken ankle (injured in a car accident), a right
5
6
dislocated shoulder (injured during a fall), carpal tunnel in
7
her hands (but worse in her right hand), a right knee issue
8
(injured during a fall; her right knee issue exacerbated her
9
back injury); and a head injury (injured during a fall 3 weeks
10
earlier).
11
55-61, 63-67).
She takes medicine (a pump) for asthma.
(See AR
12
13
She can walk for about 5 minutes before she has to stop
14
15
and rest.
She can sit for about 3 minutes before she needs to
16
change position, i.e., stand up, walk a little. She lies down
17
when her back starts to really hurt.
18
pounds.
19
weighs 26 or 27 pounds (“because that’s what a mother needs to
20
do, even though she has pain”).
She can lift 15 to 20
She sometimes picks up her 2-year-old child who
(See AR 61-63).
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22
23
In 2007, she was told about having a surgery on the back
24
of her neck (but she did not proceed with it because a co-
25
worker got worse following a shoulder and arm surgery).
26
was also told about having a surgery on her hand and/or wrist.
27
Thirty years ago, she was told about having a surgery on her
28
12
She
1
ankle (which she decided not to do because she thought it
2
would heal on its own).
(See AR 63-64).
3
4
When asked whether she has any psychological problems,
5
6
she stated that she cannot remember a lot of things (she uses
7
her phone to remind her of dates of things like a hearing),
8
and that she reads and writes maybe like an eighth-grader.
9
(See AR 64-65).
10
11
12
After
briefly
administrative
discussing
hearing,
the
Plaintiff’s
Exertional
testimony
Questionnaire,
at
the
the
Pain
13
Questionnairs, and the Adult Function Report (see AR 29-30), the ALJ
14
15
addressed Plaintiff’s credibility as follows:
16
17
The
undersigned
finds
the
claimant’s
allegations
18
concerning the intensity, persistence and limiting efects of
19
her symptoms are less than fully credible.
20
debilitating pain are inconsistent with the objective medical
21
evidence
and
the
claimant’s
admitted
The allegations of
activities,
which
22
23
indicates
an
attempt
by
the
claimant
to
exaggerate
the
24
severity of her symptoms.
The claimant admitted she was able
25
to walk (up to five miles) and use public transportation, do
26
some household chores, prepare meals, and go out alone.
27
tasks are within the residual functional capacity assessed
28
herein, and the physical and mental abilities and social
13
These
1
interactions required in order to perform those activities are
2
the same as those necessary for obtaining and maintaining
3
employment.
4
reflects work activities after the alleged onset date.
5
Furthermore, as mentioned earlier, the record
record showed the claimant worked in 2013 (Ex. 9D).
The
Although
6
7
8
9
10
that
work
substantial
activity
gainful
does
not
activity,
constitute
it
does
disqualifying
indicate
that
the
claimant’s daily activities have, at least at times, been
somewhat greater than the claimant has generally reported.
11
12
13
14
After
careful
consideration
of
the
evidence, the
undersigned finds that the claimant’s medically determinable
impairments could reasonably be expected to cause some of the
15
16
alleged
symptoms;
however,
the
claimant’s
statements
17
concerning the intensity, persistence and limiting effects of
18
these symptoms are not credible
19
inconsistent
20
assessment. (AR 29-30).
with
the
above
to the extent they are
residual
functional
capacity
21
22
A claimant initially must produce objective medical evidence
23
establishing a medical impairment reasonably likely to be the cause of
24
25
the subjective symptoms. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.
26 1996); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). Once a
27 claimant produces objective medical evidence of an underlying impairment
28 that could reasonably be expected to produce the pain or other symptoms
14
1 alleged, and there is no evidence of malingering, the ALJ may reject the
2 claimant’s testimony regarding the severity of his or her pain and
3 symptoms only by articulating specific, clear and convincing reasons for
4 doing so.
Brown-Hunter v. Colvin, 798 F.3d 749, 755 (9th Cir.
5
2015)(citing Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir.
6
7
8
2007)); see also Smolen, supra; Reddick v. Chater, 157 F.3d 715, 722
(9th Cir. 1998); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th
9 Cir. 1997). Because the ALJ does not cite to any evidence in the record
10 of malingering, the “clear and convincing” standard stated above
11 applies.
12
13
14
Here, the ALJ failed to provide clear and convincing reasons for
finding that Plaintiff’s testimony about the intensity, persistence and
15
16
limiting effects of her symptoms was not entirely credible.7
17
18
First, the ALJ failed to “specifically identify ‘what testimony is
19 not credible and what evidence undermines [Plaintiff’s] complaints.’”
20 Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (quoting Lester v.
21 Chater, 81 F.3d 821, 834 (9th Cir. 1995)); see also Smolen, supra, 80
22
F.3d at 1284 (“The ALJ must state specifically what symptom testimony
23
24
7
The Court will not consider reasons for finding Plaintiff not
25 entirely credible (see Joint Stip. at 21-23) that were not given by the
ALJ in the Decision. See Connett v. Barnhart, 340 F.3d 871, 874 (9th
26 Cir. 2003)(“We are constrained to review the reasons the ALJ asserts.”;
citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947), Pinto v.
27 Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001)); and Garrison v.
Colvin, 759 F.3d 995, 1010 (9th Cir. 2014)(“We review only the reasons
28 provided by the ALJ in the disability determination and may not affirm
the ALJ on a ground upon which he did not rely.”).
15
1 is not credible and what facts in the record lead to that conclusion”);
2 Laborin v. Berryhill, 867 F.3d 1151, 1154-54 (9th Cir. 2017)(stating
3 that the boilerpate language that a claimant’s “statements concerning
4 the intensity, persistence and limiting effects of [the claimant’s]
5
symptoms are not credible to the extent that are inconsistent with the
6
7
8
RFC” “does not . . . add anything to the ALJ’s determination of either
the RFC or the claimant’s credibility.”).
9
10
Second, the ALJ’s partial discrediting of Plaintiff’s testimony
11 based on her ability to perform certain daily activities, such as
12 walking, using public transportation, doing some household chores,
13 preparing meals, and going out alone, was not a clear and convincing
14
reason.
See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)
15
16
17
(“[T]he mere fact that a plaintiff has carried on certain daily
activities . . . does not in any way detract from her credibility as to
18 her overall disability. One does not need to be ‘utterly incapacitated’
19 in order to be disabled.”); Reddick, supra (“Only if the level of
20 activity were inconsistent with the Claimant’s claimed limitations would
21 these activities have any bearing on Claimant’s credibility.”).
22
23
It is not clear whether the ALJ considered Plaintiff’s testimony
24
25
about her limited abilities to perform such daily activities (see AR 276
26 [Plaintiff testified that it took her about 2 hours to walk 2 to 3
27 miles, and that walking caused her body to hurt all over], 298
28 [Plaintiff testified she feels pain when she walks too much], 313
16
1 [Plaintiff testified that walking caused her pain], 333 [Plaintiff
2 testified she can walk for 10 to 20 minutes before having to stop and
3 rest], 61-62 [Plaintiff testified that she could only walk for 5 minutes
4 before having to stop and rest], 277 [Plaintiff testified it takes her
5
3 hours to clean her home, wash dishes, pick up, and make her bed], 278
6
7
8
[Plaintiff’s testimony that she has difficulty finishing her housework],
60 [Plaintiff’s testimony that she has two of her children help her with
9 the cooking and cleaning], and 330 [Plaintiff’s testimony that it takes
10 her 3 1/2 hours to prepare a meal). Moreover, although, as noted by the
11 ALJ, Plaintiff did testify she can walk up to 5 miles (see AR 300 [3
12 miles], 315 [5 miles]), Plaintiff was not asked about those statements
13 or whether (particularly in light of Plaintiff’s other testimony about
14
her walking limitations) she properly understood the questions being
15
16
17
asked (i.e., the distance she was able to walk “outside [her] home”) at
the administrative hearing.
Therefore, the degree to which Plaintiff
18 could perform such daily activities may not have been inconsistent with
19 her testimony regarding her limitations. See Reddick, supra; see also
20 Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 600 (9th
21 Cir. 1999)(“If a claimant is able to spend a substantial part of his day
22
engaged in pursuits involving the performance of physical functions that
23
are transferable to a work setting, a specific finding as to this fact
24
25
may be sufficient to discredit a claimant’s allegations.”).
26
27
Third, to the extent that the ALJ found that Plaintiff was not
28 entirely credible based on the fact that Plaintiff worked in 2013, that
17
1 reason was not clear and convincing.
The ALJ relied on a record
2 reflecting that Plaintiff worked at the Salvation Army in 2013 and
3
earned a total of $ 748.00.
4
(AR 267).
However, at the administrative
hearing, the ALJ did not ask Plaintiff what she did at the Salvation
5
6
Army in 2013.
Moreover, the ALJ failed to articulate how Plaintiff’s
7 apparently minimal work at the Salvation Army in 2013 affected the
8 credibility of her testimony concerning the severity of her pain and
9 symptoms.
10
11
12
Fourth, although the ALJ also found that there was a lack of
objective medical evidence supporting Plaintiff’s testimony concerning
13
her symptoms and limitations, the lack of supporting objective medical
14
15
evidence cannot, by itself, support an adverse credibility finding. See
16 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Tidwell v.
17 Apfel, 161 F.3d 599, 602 (9th Cir. 1998). In addition, the ALJ failed
18 to specifically identify what medical evidence was inconsistent with
19 Plaintifff’s testimony. See Brown-Hunter v. Colvin, 806 F.3d 497, 494
20 (9th Cir. 2015).
21
22
23
B.
Remand Is Warranted
24
25
The decision whether to remand for further proceedings or order an
26 immediate award of benefits is within the district court’s discretion.
27 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no
28 useful purpose would be served by further administrative proceedings,
18
1 or where the record has been fully developed, it is appropriate to
2 exercise this discretion to direct an immediate award of benefits. Id.
3
at 1179 (“[T]he decision of whether to remand for further proceedings
4
turns upon the likely utility of such proceedings.”).
However, where,
5
6
as
here,
the
circumstances
of
the
case
suggest
that
further
7 administrative review could remedy the Commissioner’s errors, remand is
8 appropriate.
McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011);
9 Harman v. Apfel, supra, 211 F.3d at 1179-81.
10
11
12
Since the ALJ failed to properly assess Plaintiff’s credibility,
remand is appropriate.
Because outstanding issues must be resolved
13
before a determination of disability can be made, and “when the record
14
15
as a whole creates serious doubt as to whether the [Plaintiff] is, in
16 fact, disabled within the meaning of the Social Security Act,” further
17 administrative proceedings would serve a useful purpose and remedy
18 defects.
Burrell
v.
Colvin,
775
F.3d
1133,
1141
(9th
Cir.
19 2014)(citations omitted).8
20
21
22
23
24
25
26
27
28
8
The Court has not reached any other issue raised by Plaintiff
except to determine that reversal with a directive for the immediate
payment of benefits would not be appropriate at this time.
“[E]valuation of the record as a whole creates serious doubt that
Plaintiff is in fact disabled.” See Garrison v. Colvin, 759 F.3d 995,
1021 (2014). Accordingly, the Court declines to rule on Plaintiff’s
claim regarding the ALJ’s error in failing to properly assess the
opinion of the orthopedic consultative examiner (see Joint Stip. at 4-9,
14-15). Because this matter is being remanded for further consideration,
this issue should also be considered on remand.
19
1
ORDER
2
3
For the foregoing reasons, the decision of the Commissioner is
4
5
6
reversed, and the matter is remanded for further proceedings pursuant
to Sentence 4 of 42 U.S.C. § 405(g).
7
8
LET JUDGMENT BE ENTERED ACCORDINGLY.
9
10 DATED: October 10, 2017
11
12
13
14
/s/
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE
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28
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