Kimberly Roberts Spencer v. Michael J Astrue
Filing
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MEMORANDUM AND OPINION by Magistrate Judge Victor B. Kenton re: EX PARTE APPLICATION to Stay Case pending Restoration of Appropriations 15 , 1 , APPLICATION for Order for Lifting Stay and Approving Proposed New Schedule 17 . This Memorandum Opinion will constitute the Courts findings of fact and conclusions of law. After reviewing the matter, the Courtconcludes that for the reasons set forth in this Order, the decision of theCommissioner must be reversed and the matter remanded for further hearing. (See M&O for further details) (rh)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
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KIMBERLY ROBERTS SPENCER,
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Plaintiff,
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v.
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CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,
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Defendant.
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No. ED CV 13-00069-VBK
MEMORANDUM OPINION
AND ORDER
(Social Security Case)
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This matter is before the Court for review of the decision by the
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Commissioner of Social Security denying Plaintiff’s application for
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disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have
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consented that the case may be handled by the Magistrate Judge. The
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action arises under 42 U.S.C. §405(g), which authorizes the Court to
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enter judgment upon the pleadings and transcript of the Administrative
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Record (“AR”) before the Commissioner. The parties have filed the
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Joint Stipulation (“JS”), and the Commissioner has filed the certified
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AR.
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Plaintiff raises the following issue:
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1.
Whether
the Administrative Law Judge (“ALJ”) properly
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considered Plaintiff’s subjective symptom testimony.
(JS at 4.)
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This Memorandum Opinion will constitute the Court’s findings of
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fact and conclusions of law. After reviewing the matter, the Court
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concludes
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Commissioner must be reversed and the matter remanded.
that
for
the
reasons
set
forth,
the
decision
of
the
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THE ALJ’S CREDIBILITY FINDING DOES NOT PERMIT JUDICIAL REVIEW,
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AND THE MATTER MUST BE REMANDED
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Plaintiff raises a single issue, which is whether the ALJ
properly considered her subjective symptom testimony.
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Plaintiff application for Supplemental Security Income (“SSI”)
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was filed on October 19, 2009, alleging that she has been unable to
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work since September 1, 2009 due to arthritis. (AR 129-138, 145.)
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After being administratively denied, Plaintiff received a hearing
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before an ALJ (AR 23-36), which then led to an unfavorable Decision
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(AR 26-33), the basis for this litigation after the Appeals Council
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denied review. (AR 17, 1-6.)
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The hearing before the ALJ, which occurred on April 8, 2011,
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lasted 24 minutes, an assertion made by Plaintiff (JS at 11) and which
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the Commissioner does not dispute.
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hearing is important, because the ALJ’s observations of Plaintiff’s
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physical demeanor at the hearing was one of the two reasons cited in
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his Decision for depreciating her subjective symptom testimony. (See
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AR at 30.)
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that,
The significance of this short
The other cited reason, to quote from the Decision, was
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“The medical records reveal the claimant has not generally
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received the type of medical treatment one would expect for
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a totally disabled individual.
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treatment notes for the claimant’s back.”
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There were virtually no
(Id.)
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This secondary basis, which the Court will discuss, is further
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significant, because at the brief hearing before the ALJ, no Medical
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Expert was called.
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Both
the
law
and
the
clear
rules
governing
assessment
of
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subjective symptom testimony are so established, that the Court
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wonders why such a case should come before it.
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malingering (and none was demonstrated or found in this record), it is
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up to the ALJ to set forth “clear and convincing reasons” to reject
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pain and limitation testimony.
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1291 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir.
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1993).
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ALJ must “specifically identify what testimony is credible and what
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evidence undermines the claimant’s complaints.”
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464 F.3d 968, 972 (9th Cir. 2006).
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supra, 12 F.3d at 918, and Parra v. Astrue, 481 F.3d 742, 750 (9th
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Cir.
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boilerplate language will never suffice.
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turn to the four corners of the ALJ’s Decision to determine whether it
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is supported by substantial evidence, and whether, in the case of a
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credibility
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evidence.
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Commissioner’s opinion of the medical evidence in the record, but this
In the absence of
See Smolen v. Chater, 80 F.3d 1273,
To permit judicial review, case precedent requires that the
2007).
These
analysis,
authorities
it
is
make
Greger v. Barnhart,
See also Dodrill v. Shalala,
it
supported
clear
that
the
use
of
Moreover, the Court must
by
clear
and
convincing
Most of the Commissioner’s argument in the JS cites the
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cannot be substituted for a Decision which adequately and clearly
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states the basis for its conclusions.
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Rulings provide exactly this instruction.
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credibility finding “must be sufficiently specific to make clear to
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the
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adjudicator gave to the individual’s statements and the reason for
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that weight.”
individual
and
to
any
Indeed, the Commissioner’s own
subsequent
SSR 96-7p requires that a
reviewers
the
weight
the
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The ALJ’s Decision is further undermined by the fact that his
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conclusions as to credibility rely upon his own opinion: both as to
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what treatment would be expected for an individual such as this
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Plaintiff,
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demeanor at the short hearing. Even according some specificity to the
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ALJ’s determination that Plaintiff has not generally received the type
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of treatment one would expect, this is belied by the record.
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Court need not reiterate the substantial references to the record set
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forth by Plaintiff in the JS at pp. 6, et seq.
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Plaintiff complained of back and joint pain as early as May 2009 (AR
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186),
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objective limitations.
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was treated at University Pain Consultants, complaining of low back
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and right leg pain. (AR 206-207.)
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had positive tenderness, positive facet loading, antalgic gait, and
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positive straight leg raising on the right side. (Id.)
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a diagnosis of thoracic or lumbosacral neuritis or radiculitis and
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osteoarthritis. (Id.)
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MRI of her lumbar spine was ordered. (AR 207.)
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and
and
that
second,
his
physical
observations
examinations
of
Plaintiff’s
physical
The
Suffice it to say that
corroborate
that
she
has
For example, on November 30, 2009, Plaintiff
Physical examination indicated she
She received
She received a prescription for Vicodin and an
Other reports of objective treatment in the record are consistent
with the above conclusions.
Moreover, in addition to receiving pain
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medications, Plaintiff has undergone a cortisone injection in her
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right
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continuous treatment for knee problems throughout 2010, with cortisone
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injections in both knees. (AR 331-359.)
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a syndisc one injection her left knee (AR 329).
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pain is severe and it becomes worse when she stands, walks, or does
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other activities. (AR 383-387.)
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various drugs for her neuropathic pain. (AR 387.)
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physician Dr. Leung noted that conservative modalities of treatment
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had failed and he recommended surgical consultation, which Plaintiff
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at that time declined. (AR 395.)
knee
(AR
361).
The
record
indicates
that
she
received
The next year, she received
She reported that her
She received prescriptions for
In 2009, treating
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The above is not intended to be complete summary of the medical
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evidence in the record, but simply demonstrates that Plaintiff has
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received substantial and fairly continuous treatment over a period of
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several years for her pain complaints; has been medicated for this;
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and has been referred for surgical consultation.
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no way to glean what the ALJ meant with regard to a type of medical
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treatment
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received.
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that
would
be
expected,
but
which
Thus, the Court has
Plaintiff
has
not
The other basis for the ALJ’s credibility determination is his
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observation
that
Plaintiff
demonstrated
an
“apparent
lack
of
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discomfort during the hearing ...”
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weight,” because it is the only other stated basis for the credibility
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determination, it must be evaluated.
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part of the ALJ’s Decision as “sit and squirm” jurisprudence, which
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has been noted by the Ninth Circuit for many years as an impermissible
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basis for credibility assessment. See Perminteer v. Heckler, 765 F.2d
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870, 872 (9th Cir. 1985).
While giving this “some slight
Plaintiff characterizes this
Even at that, the Commissioner depreciates
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Plaintiff’s tearfulness at the hearing as being emotionally, rather
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than physically based.
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must be wary of relying upon such observations, especially during a
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brief
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depreciating a claimant’s credibility is thinly based on overly
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generic statements concerning conservative treatment.
hearing,
and
This may or may not be the case, but an ALJ
even
more
so
when
the
ultimate
decision
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For the foregoing reasons, the Court finds that the ALJ’s
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credibility determination is not supported by a recitation of clear
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and convincing evidence, and the matter must be remanded for further
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hearing. At that hearing, the Court suggests that the
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utilize a Medical Expert to analyze the existing medical records with
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regard to the sufficiency and extent of treatment for Plaintiff’s
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pain.
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ALJ may want to
For the foregoing reasons, this matter will be remanded for
further hearing consistent with this Memorandum Opinion.
IT IS SO ORDERED.
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DATED: November 22, 2013
/s/
VICTOR B. KENTON
UNITED STATES MAGISTRATE JUDGE
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