Winifred Darnell Williams v. Nancy A. Berryhill

Filing 18

MEMORANDUM OPINION AND ORDER by Magistrate Judge John D. Early. IT THEREFORE IS ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedings consistent with this Order. (twdb)

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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 WINIFRED DARNELL WILLIAMS, 13 14 15 16 17 Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. ) Case No. CV 17-03624-JDE ) ) ) MEMORANDUM OPINION AND ) ) ORDER ) ) ) ) ) ) ) ) 18 19 Plaintiff Winifred Darnell Williams (“Plaintiff”) filed a Complaint on 20 May 14, 2017, seeking review the denial of her applications for disability 21 insurance benefits (“DIB”) and supplemental security income (“SSI”) by the 22 Commissioner of Social Security (“Commissioner”). The parties filed consents 23 to proceed before the undersigned Magistrate Judge. In accordance with the 24 Court’s Order Re: Procedures in Social Security Appeal, the parties filed a 25 Joint Stipulation (“Jt. Stip.”) on January 16, 2018, addressing their respective 26 positions. The Court has taken the Joint Stipulation under submission without 27 oral argument and as such, this matter now is ready for decision. 28 1 I. 2 BACKGROUND 3 On August 30, 2013, Plaintiff applied for DIB and SSI, alleging disability 4 beginning August 19, 2013. (Administrative Record [“AR”] 10, 128-35.) After 5 her applications were denied (AR 84-89), Plaintiff requested an administrative 6 hearing, which was held on September 8, 2015. (AR 22-57, 90-91.) Plaintiff, 7 represented by counsel, appeared and testified at the hearing before an 8 Administrative Law Judge (“ALJ”), as did a vocational expert. (AR 22-57.) 9 On December 11, 2015, the ALJ issued a written decision finding 10 Plaintiff was not disabled. (AR 7-17.) The ALJ found that Plaintiff had not 11 engaged in substantial gainful activity since August 19, 2013. (AR 12.) The 12 ALJ determined that Plaintiff suffered from the following severe impairments: 13 hypertension; pancreatitis; hepatitis C; coronary artery disease; joint arthralgia; 14 rhabdomyolysis; and cirrhosis. (Id.) The ALJ found that Plaintiff did not have 15 an impairment or combination of impairments that met or medically equaled a 16 listed impairment. (AR 13.) The ALJ also found that Plaintiff had the residual 17 functional capacity (“RFC”) to perform light work, with the following 18 limitations: Plaintiff could (1) lift, carry, push, and pull 20 pounds occasionally 19 and 10 pounds frequently; (2) sit for six hours; (3) stand and/or walk for six 20 hours; (4) frequently climb ramps or stairs, balance, stoop, kneel, crouch, or 21 crawl, but never climb ladders, ropes, or scaffolds; and (6) requires a cane for 22 balance. (AR 14.) The ALJ further found that Plaintiff was capable of 23 performing her past relevant work as a customer order clerk and collection 24 clerk. (AR 16.) Accordingly, the ALJ concluded that Plaintiff was not under a 25 “disability,” as defined in the Social Security Act. (Id.) 26 On March 13, 2017, the Appeals Council denied Plaintiff’s request for 27 review of the ALJ’s decision, making the ALJ’s decision the Commissioner’s 28 final decision. (AR 1-4.) This action followed. 2 1 II. 2 STANDARD OF REVIEW 3 Under 42 U.S.C. § 405(g), a district court may review a decision to deny 4 benefits. An ALJ’s findings and decision should be upheld if they are free from 5 legal error and supported by substantial evidence based on the record as a 6 whole. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (as 7 amended); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 8 evidence means such relevant evidence as a reasonable person might accept as 9 adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 10 (9th Cir. 2007). It is more than a scintilla, but less than a preponderance. Id. 11 To determine whether substantial evidence supports a finding, the 12 reviewing court “must review the administrative record as a whole, weighing 13 both the evidence that supports and the evidence that detracts from the 14 Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 15 1998). The standard of review of a decision by an ALJ is “highly deferential.” 16 Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015) 17 (citation omitted). “If the evidence can reasonably support either affirming or 18 reversing,” the reviewing court “may not substitute its judgment” for that of 19 the Commissioner. Reddick, 157 F.3d at 720-21; see also Molina v. Astrue, 20 674 F.3d 1104, 1111 (9th Cir. 2012) (“Even when the evidence is susceptible to 21 more than one rational interpretation, [the court] must uphold the ALJ’s 22 findings if they are supported by inferences reasonably drawn from the 23 record.”). However, a court may review only the reasons stated by the ALJ in 24 the decision “and may not affirm the ALJ on a ground upon which he did not 25 rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 26 Lastly, even if an ALJ commits legal error, the Court will uphold the 27 decision if the error is harmless. Molina, 674 F.3d at 1115. An error is 28 harmless if it is “inconsequential to the ultimate nondisability determination,” 3 1 or if “the agency’s path may reasonably be discerned, even if the agency 2 explains its decision with less than ideal clarity.” Brown-Hunter, 806 F.3d at 3 492 (citation omitted). 4 III. 5 DISCUSSION Plaintiff contends that the ALJ failed to properly consider her subjective 6 7 symptom testimony. (Jt. Stip. at 4.) Where a disability claimant produces objective medical evidence of an 8 9 underlying impairment that could reasonably be expected to produce the pain 10 or other symptoms alleged, and there is no evidence of malingering, the ALJ 11 must provide “‘specific, clear and convincing reasons for’ rejecting the 12 claimant’s testimony regarding the severity of the claimant’s symptoms.” 13 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) 14 (citation omitted); Lingenfelter, 504 F.3d at 1036; Moisa v. Barnhart, 367 F.3d 15 882, 885 (9th Cir. 2004); see also 20 C.F.R. § 404.1529(a). The ALJ’s findings 16 “must be sufficiently specific to allow a reviewing court to conclude that the 17 [ALJ] rejected [the] claimant’s testimony on permissible grounds and did not 18 arbitrarily discredit the claimant’s testimony.” Moisa, 367 F.3d at 885 (citation 19 omitted). “General findings are insufficient; rather, the ALJ must identify what 20 testimony is not credible and what evidence undermines the claimant’s 21 complaints.” Reddick, 157 F.3d at 722 (citation omitted). However, if the 22 ALJ’s assessment of the claimant’s testimony is reasonable and is supported by 23 substantial evidence, it is not the court’s role to “second-guess” it. See Rollins 24 v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).1 25 26 27 28 After the ALJ’s decision, SSR 16-3p went into effect. See SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016). SSR 16-3p provides that “we are eliminating the use of the term ‘credibility’ from our sub-regulatory policy, as our regulations do not use this term.” Id. Moreover, “[i]n doing so, we clarify that subjective symptom evaluation is 1 4 1 On October 16, 2013, Plaintiff completed a pain and other symptom 2 questionnaire (AR 175-76), in which she described bad muscle cramps and 3 spams from her neck to feet, high blood pressure, chronic hepatitis C, acute 4 pancreatitis, rhabdomyolysis, depression, and unusual fatigue. She was in pain 5 at least three times a week and it interfered with her sleep. She reported that 6 she needed to take a nap or rest two or more times a day for two hours. (AR 7 175.) She indicated that standing or sitting too long caused pain; and her 8 fingers cramped up when typing, requiring her to “pull them apart.” (Id.) She 9 explained that the pain was sometimes unbearable and she has had to go to the 10 hospital. Other than medication, relaxing, Epsom salt baths, and using her 11 cane helped the pain and other symptoms. (AR 176.) 12 On the same date, Plaintiff also completed a function report in which she 13 noted that sometimes she cannot dress herself, take care of grooming, or feed 14 herself. (AR 178.) On bad days, she cannot clean her house and her niece helps 15 with cooking. (AR 178-79.) She does not drive because she fears that her legs 16 will cramp. (AR 180.) She shops as needed and handles her own money. (Id.) 17 She uses a cane and wears glasses. (AR 183.) Plaintiff has many interests and 18 hobbies, but now she only reads, does word puzzles, watches television, and 19 exercises “a little.” (AR 181.) She indicated that her conditions affect lifting, 20 stair climbing, using her hands, bending, standing, kneeling, seeing, walking, 21 squatting, sitting, reaching, and completing tasks. (AR 182.) She can walk 22 perhaps a block or two before needing to stop and rest. (Id.) 23 24 25 26 27 28 not an examination of an individual’s character” and requires that the ALJ consider all of the evidence in an individual’s record when evaluating the intensity and persistence of symptoms. Id.; see also Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017). Thus, the adjudicator “will not assess an individual’s overall character or truthfulness in the manner typically used during an adversarial court litigation. The focus of the evaluation of an individual’s symptoms should not be to determine whether he or she is a truthful person.” SSR 16-3p, 2016 WL 1119029, at *10. 5 During the administrative hearing, Plaintiff testified that everything 1 2 cramps up, including her hands, and she is in pain all the time. (AR 30, 45.) 3 She explained that she cannot move when her body cramps up. (AR 30.) She 4 also suffers from body sweats, breaks out with spots, and has lost weight. (AR 5 33.) Sometimes, she does not have an appetite and it hurts to eat. (AR 33-34.) 6 She does not drive and relies on her niece and the Access bus to get around. 7 (AR 34.) Her niece also helps her bathe, cook, and clean. (Id.) She sometimes 8 needs help dressing. She has used a cane since 2013 because of the cramping 9 and muscle spasms, but tries to walk without the cane sometimes. (AR 35, 53- 10 54.) She cannot sit for longer than 30 minutes and can walk less than a block. 11 She becomes tired and out of breath, especially when it is hot outside. (AR 35.) 12 She can lift and carry approximately three pounds, but cannot grasp for long 13 because of the cramping. (AR 36.) 14 A. The ALJ failed to provide specific, clear and convincing reasons for 15 rejecting Plaintiff’s subjective symptom testimony. 16 The ALJ determined Plaintiff’s “medically determinable impairments 17 could reasonably be expected to cause some of the alleged symptoms,” but 18 Plaintiff’s “statements concerning the intensity, persistence[,] and limiting 19 effects of these symptoms [were] not entirely credible for the reasons explained 20 in this decision.” (AR 14-15.) The ALJ summarize the medical evidence and 21 the third party function report of Plaintiff’s brother, before concluding that, “in 22 the absence of a treating source opinion, the undersigned finds the claimant 23 can perform light work and gives her the benefit of the doubt in finding she has 24 postural restrictions and the required use of a cane for balance.” (AR 16.) 25 As explained, the ALJ must identify what testimony is not credible and 26 what evidence undermines the plaintiff’s complaints. Reddick, 157 F.3d at 722. 27 General statements without identifying “sufficiently specific reasons” for 28 rejecting a plaintiff’s subjective symptom testimony is insufficient. Brown6 1 Hunter, 806 F.3d at 493. In the present case, the ALJ’s conclusory finding that 2 Plaintiff’s statements concerning the intensity, persistence, and limiting effects 3 of the symptoms, without identifying specifically which of Plaintiff’s 4 statements were found not credible, does not constitute specific, clear and 5 convincing reasons supported by substantial evidence for rejecting Plaintiff’s 6 subjective symptom testimony. Id. 7 The only apparent articulated reason for rejecting Plaintiff’s credibility 8 was the lack of objective medical evidence supporting her complaints of pain. 9 Because the ALJ did not provide any other clear and convincing reason for 10 discounting Plaintiff’s subjective complaints, this finding is not a proper basis 11 for the ALJ’s credibility determination. See Rollins, 261 F.3d at 856-57; Burch 12 v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (finding lack of objective 13 medical evidence to support subjective symptom allegations cannot form the 14 sole basis for discounting pain testimony). 15 The Commissioner argues that the ALJ also rejected Plaintiff’s 16 subjective symptom testimony based on the medical opinion evidence. (Jt. 17 Stip. at 13.) Medical opinion evidence is merely an example of objective 18 medical evidence, and thus, does not constitute a separate and distinct reason 19 for rejecting Plaintiff’s subjective symptom testimony. See Vigil v. Comm’r of 20 Soc. Sec., 2017 WL 4075581, at *8 (E.D. Cal. Sept. 14, 2017) (explaining that 21 the medical opinions are based on the objective medical evidence and thus, do 22 not constitute separate and distinct reasons for discrediting plaintiff’s pain 23 testimony); Petit v. Astrue, 2012 WL 3965146, at *7 (C.D. Cal. Sept. 11, 2012) 24 (medical opinions are examples of objective medical evidence). 25 Accordingly, the ALJ did not provide specific, clear and convincing 26 reasons supported by substantial evidence to discount Plaintiff’s subjective 27 symptom testimony. In this instance, the Court cannot conclude that the ALJ’s 28 error was harmless. The ALJ’s decision lacks any “meaningful explanation” 7 1 based on specific evidence in the record for rejecting any specific subjective 2 complaint. See, e.g., Brown-Hunter, 806 F.3d at 492 (ALJ’s failure adequately 3 to specify reasons for discrediting claimant testimony, “will usually not be 4 harmless”). In light of the significant functional limitations reflected in 5 Plaintiff’s subjective statements, the Court cannot “confidently conclude that 6 no reasonable ALJ, when fully crediting the [Plaintiff’s] testimony, could have 7 reached a different disability determination.” Stout v. Comm’r, Soc. Sec. 8 Admin., 454 F.3d 1050, 1055-56 (9th Cir. 2006). 9 B. Remand is appropriate. 10 The decision whether to remand for further proceedings is within this 11 Court’s discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000) 12 (as amended). Where no useful purpose would be served by further 13 administrative proceedings, or where the record has been fully developed, it is 14 appropriate to exercise this discretion to direct an immediate award of benefits. 15 See Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); Harman, 211 F.3d 16 at 1179 (noting that “the decision of whether to remand for further proceedings 17 turns upon the likely utility of such proceedings”). A remand for further 18 proceedings is appropriate where outstanding issues must be resolved before a 19 determination of disability can be made and it is not clear from the record that 20 the ALJ would be required to find the claimant disabled and award disability 21 benefits. See Bunnell v. Barnhart, 336 F.3d 1112, 1115-16 (9th Cir. 2003). 22 Here, the Court concludes that remand to the Commissioner for further 23 administrative proceedings is warranted. On remand, the ALJ shall reassess 24 Plaintiff’s subjective allegation and then reassess Plaintiff’s RFC in light of the 25 subjective symptom testimony and proceed through step four and step five, if 26 necessary, to determine what work, if any, Plaintiff is capable of performing 27 that exists in significant numbers in the national economy. 28 8 1 IV. 2 ORDER 3 Pursuant to sentence four of 42 U.S.C. § 405(g), IT THEREFORE IS 4 ORDERED that Judgment be entered reversing the decision of the 5 Commissioner of Social Security and remanding this matter for further 6 administrative proceedings consistent with this Order. 7 8 Dated: February 08, 2018 ______________________________ JOHN D. EARLY United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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