Yosef Zacchaeus Barber v. Carolyn W Colvin

Filing 14

MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi. IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision. (See Order for details) (bem)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 YOSEF ZACCHAEUS BARBER, 12 Plaintiff, 13 14 v. 15 CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL 1/ SECURITY ADMINISTRATION, 16 Defendant. 17 ) Case No. ED CV 13-0437 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 Yosef Zacchaeus Barber (“Plaintiff”) challenges the Social Security 19 20 Commissioner’s (“Defendant”) decision denying his application for disability 21 benefits. Specifically, Plaintiff contends that the Administrative Law Judge (“ALJ”) 22 improperly rejected his credibility. (Joint Stip. at 19-22.) The Court agrees with 23 Plaintiff for the reasons discussed below. A. 24 The ALJ Failed to Provide Clear and Convincing Reasons for Rejecting Plaintiff’s Credibility 25 An ALJ may reject a claimant’s credibility “only upon (1) finding evidence of 26 27 28 1/ Carolyn W. Colvin is substituted as the proper defendant herein. See Fed. R. Civ. P. 25(d). 1 malingering, or (2) expressing clear and convincing reasons for doing so.” Benton v. 2 Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). “General findings are insufficient; 3 rather, the ALJ must identify what testimony is not credible and what evidence 4 undermines the claimant’s complaints.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 5 1995). 6 Here, the ALJ provided two reasons in support of his credibility 7 determination. The Court discusses, and rejects, each in turn. 8 First, the ALJ found that the severity of Plaintiff’s symptoms is “greater than 9 expected in light of the medical evidence.” (Administrative Record (“AR”) at 16.) 10 However, an ALJ “may not reject a claimant’s subjective complaints based solely on 11 a lack of objective medical evidence to fully corroborate the alleged severity of 12 pain.” Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991); Gamer v. Secretary of 13 Health & Human Servs., 815 F.2d 1275, 1279 (9th Cir. 1987); Summers v. Bowen, 14 813 F.2d 241, 242 (9th Cir. 1987) (per curiam). Thus, as to this ground, the ALJ’s 15 credibility determination is inadequate. 16 Second, the ALJ found that “the lack of more aggressive treatment, referral to 17 a specialist, or even further diagnostic testing suggests that the claimant’s symptoms 18 and limitations were not as severe as he alleged.” (AR at 17.) Typically, an ALJ 19 properly considers evidence of conservative treatment in his credibility analysis. See 20 Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999). Here, however, the ALJ also 21 found that there was inadequate testing in light of Plaintiff’s severe symptoms. (See 22 AR at 43.) When an ALJ finds the medical evidence to be inadequate, he has an 23 affirmative “duty to fully and fairly develop the record.” Celaya v. Halter, 332 F.3d 24 1177, 1183 (9th Cir. 2003). The ALJ’s duty to supplement a claimant’s record is 25 triggered by ambiguous evidence [or] the ALJ’s own finding that the record is 26 inadequate.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). The ALJ may 27 discharge this duty in several ways, including: (1) subpoenaing the claimant’s 28 physicians; (2) submitting questions to the claimant’s physicians; (3) continuing the 2 1 hearing; or (4) keeping the record open after the hearing to allow supplementation of 2 the record. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). 3 Because the ALJ found the medical evidence to be inadequate, he failed in his 4 “duty to [then] fully and fairly develop the record.” Celaya, 332 F.3d at 1183. In 5 particular, at Plaintiff’s hearing, the ALJ stated, “I can’t understand why they’re not 6 trying to find out what’s wrong with you . . . I mean somebody walks in and they’re 7 complaining of that degree of pain and they’re not doing an MRI test, not doing an 8 EMG, not doing something to try to find out what’s causing it. And just loading him 9 up with medication. Sounds pretty irresponsible to me. Sounds like malpractice is 10 what it sounds like.” (AR at 43.) The ALJ had a duty to resolve the ambiguity in 11 Plaintiff’s treatment. For example, he may have subpoenaed Plaintiff’s physicians 12 or left the record open while Plaintiff underwent further testing. See Tonapetyan, 13 242 F.3d at 1150. The ALJ’s failure to do so was in error. See id. As such, the lack 14 of testing is not a sufficient reason to reject Plaintiff’s credibility. 15 Accordingly, for the reasons stated above, the Court determines that the ALJ 16 improperly rejected Plaintiff’s credibility. 17 B. Remand is Warranted 18 With error established, this Court has discretion to remand or reverse and 19 award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Where no 20 useful purpose would be served by further proceedings, or where the record has been 21 fully developed, it is appropriate to exercise this discretion to direct an immediate 22 award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004). 23 But where there are outstanding issues that must be resolved before a determination 24 can be made, or it is not clear from the record that the ALJ would be required to find 25 plaintiff disabled if all the evidence were properly evaluated, remand is appropriate. 26 See id. at 594. 27 Here, there are outstanding issues which must be resolved before a final 28 determination can be made. On remand, the ALJ shall reconsider Plaintiff’s 3 1 subjective complaints and the resulting functional limitations, and either credit 2 Plaintiff’s testimony or provide clear and convincing reasons supported by 3 substantial evidence for rejecting them. He shall also resolve all ambiguity in the 4 record. 5 Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 6 REVERSING the decision of the Commissioner denying benefits and 7 REMANDING the matter for further administrative action consistent with this 8 decision.2/ 9 10 Dated: November 12, 2013 11 ____________________________________ 12 Hon. Jay C. Gandhi United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2/ In light of the Court’s remand instructions, it is unnecessary to address 28 Plaintiff’s remaining contention. (See Joint Stip. at 4-6, 8-9.) 4

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