Kimberly Roberts Spencer v. Michael J Astrue

Filing 20

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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 KIMBERLY ROBERTS SPENCER, 12 Plaintiff, 13 14 v. 15 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 13-00069-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff’s application for 20 disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have 21 consented that the case may be handled by the Magistrate Judge. The 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the Administrative 24 Record (“AR”) before the Commissioner. The parties have filed the 25 Joint Stipulation (“JS”), and the Commissioner has filed the certified 26 AR. 27 Plaintiff raises the following issue: 28 1. Whether the Administrative Law Judge (“ALJ”) properly 1 2 considered Plaintiff’s subjective symptom testimony. (JS at 4.) 3 4 This Memorandum Opinion will constitute the Court’s findings of 5 fact and conclusions of law. After reviewing the matter, the Court 6 concludes 7 Commissioner must be reversed and the matter remanded. that for the reasons set forth, the decision of the 8 9 I 10 THE ALJ’S CREDIBILITY FINDING DOES NOT PERMIT JUDICIAL REVIEW, 11 AND THE MATTER MUST BE REMANDED 12 13 Plaintiff raises a single issue, which is whether the ALJ properly considered her subjective symptom testimony. 14 Plaintiff application for Supplemental Security Income (“SSI”) 15 was filed on October 19, 2009, alleging that she has been unable to 16 work since September 1, 2009 due to arthritis. (AR 129-138, 145.) 17 After being administratively denied, Plaintiff received a hearing 18 before an ALJ (AR 23-36), which then led to an unfavorable Decision 19 (AR 26-33), the basis for this litigation after the Appeals Council 20 denied review. (AR 17, 1-6.) 21 The hearing before the ALJ, which occurred on April 8, 2011, 22 lasted 24 minutes, an assertion made by Plaintiff (JS at 11) and which 23 the Commissioner does not dispute. 24 hearing is important, because the ALJ’s observations of Plaintiff’s 25 physical demeanor at the hearing was one of the two reasons cited in 26 his Decision for depreciating her subjective symptom testimony. (See 27 AR at 30.) 28 that, The significance of this short The other cited reason, to quote from the Decision, was 2 1 “The medical records reveal the claimant has not generally 2 received the type of medical treatment one would expect for 3 a totally disabled individual. 4 treatment notes for the claimant’s back.” 5 There were virtually no (Id.) 6 7 This secondary basis, which the Court will discuss, is further 8 significant, because at the brief hearing before the ALJ, no Medical 9 Expert was called. 10 Both the law and the clear rules governing assessment of 11 subjective symptom testimony are so established, that the Court 12 wonders why such a case should come before it. 13 malingering (and none was demonstrated or found in this record), it is 14 up to the ALJ to set forth “clear and convincing reasons” to reject 15 pain and limitation testimony. 16 1291 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 17 1993). 18 ALJ must “specifically identify what testimony is credible and what 19 evidence undermines the claimant’s complaints.” 20 464 F.3d 968, 972 (9th Cir. 2006). 21 supra, 12 F.3d at 918, and Parra v. Astrue, 481 F.3d 742, 750 (9th 22 Cir. 23 boilerplate language will never suffice. 24 turn to the four corners of the ALJ’s Decision to determine whether it 25 is supported by substantial evidence, and whether, in the case of a 26 credibility 27 evidence. 28 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 3 1 cannot be substituted for a Decision which adequately and clearly 2 states the basis for its conclusions. 3 Rulings provide exactly this instruction. 4 credibility finding “must be sufficiently specific to make clear to 5 the 6 adjudicator gave to the individual’s statements and the reason for 7 that weight.” individual and to any Indeed, the Commissioner’s own subsequent SSR 96-7p requires that a reviewers the weight the 8 The ALJ’s Decision is further undermined by the fact that his 9 conclusions as to credibility rely upon his own opinion: both as to 10 what treatment would be expected for an individual such as this 11 Plaintiff, 12 demeanor at the short hearing. Even according some specificity to the 13 ALJ’s determination that Plaintiff has not generally received the type 14 of treatment one would expect, this is belied by the record. 15 Court need not reiterate the substantial references to the record set 16 forth by Plaintiff in the JS at pp. 6, et seq. 17 Plaintiff complained of back and joint pain as early as May 2009 (AR 18 186), 19 objective limitations. 20 was treated at University Pain Consultants, complaining of low back 21 and right leg pain. (AR 206-207.) 22 had positive tenderness, positive facet loading, antalgic gait, and 23 positive straight leg raising on the right side. (Id.) 24 a diagnosis of thoracic or lumbosacral neuritis or radiculitis and 25 osteoarthritis. (Id.) 26 MRI of her lumbar spine was ordered. (AR 207.) 27 28 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 4 1 medications, Plaintiff has undergone a cortisone injection in her 2 right 3 continuous treatment for knee problems throughout 2010, with cortisone 4 injections in both knees. (AR 331-359.) 5 a syndisc one injection her left knee (AR 329). 6 pain is severe and it becomes worse when she stands, walks, or does 7 other activities. (AR 383-387.) 8 various drugs for her neuropathic pain. (AR 387.) 9 physician Dr. Leung noted that conservative modalities of treatment 10 had failed and he recommended surgical consultation, which Plaintiff 11 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 12 The above is not intended to be complete summary of the medical 13 evidence in the record, but simply demonstrates that Plaintiff has 14 received substantial and fairly continuous treatment over a period of 15 several years for her pain complaints; has been medicated for this; 16 and has been referred for surgical consultation. 17 no way to glean what the ALJ meant with regard to a type of medical 18 treatment 19 received. 20 that would be expected, but which Thus, the Court has Plaintiff has not The other basis for the ALJ’s credibility determination is his 21 observation that Plaintiff demonstrated an “apparent lack of 22 discomfort during the hearing ...” 23 weight,” because it is the only other stated basis for the credibility 24 determination, it must be evaluated. 25 part of the ALJ’s Decision as “sit and squirm” jurisprudence, which 26 has been noted by the Ninth Circuit for many years as an impermissible 27 basis for credibility assessment. See Perminteer v. Heckler, 765 F.2d 28 870, 872 (9th Cir. 1985). While giving this “some slight Plaintiff characterizes this Even at that, the Commissioner depreciates 5 1 Plaintiff’s tearfulness at the hearing as being emotionally, rather 2 than physically based. 3 must be wary of relying upon such observations, especially during a 4 brief 5 depreciating a claimant’s credibility is thinly based on overly 6 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 7 For the foregoing reasons, the Court finds that the ALJ’s 8 credibility determination is not supported by a recitation of clear 9 and convincing evidence, and the matter must be remanded for further 10 hearing. At that hearing, the Court suggests that the 11 utilize a Medical Expert to analyze the existing medical records with 12 regard to the sufficiency and extent of treatment for Plaintiff’s 13 pain. 14 15 16 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. 17 18 19 DATED: November 22, 2013 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 6

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