Marjorie Leah Brunkalla-Saspa v. Carolyn W Colvin

Filing 16

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 12 MARJORIE LEAH BRUNKALLA-SASPA, Plaintiff, 13 14 v. 15 CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 16 17 18 19 Defendant. ___________________________ ) Case No. ED CV 13-1352 JCG ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) ) Marjorie Leah Brunkalla-Saspa (“Plaintiff”) challenges the Social Security 20 Commissioner’s (“Defendant”) decision denying her application for disability 21 benefits. Specifically, Plaintiff contends that the Administrative Law Judge (“ALJ”) 22 improperly rejected her credibility. (Joint Stip. at 4-21.) The Court agrees with 23 Plaintiff for the reasons discussed below. 24 25 26 A. The ALJ Failed to Provide Clear and Convincing Reasons for Rejecting Plaintiff’s Credibility An ALJ may reject a claimant’s credibility “only upon (1) finding evidence of 27 malingering, or (2) expressing clear and convincing reasons for doing so.” Benton 28 ex rel. Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). “General findings 1 are insufficient; rather, the ALJ must identify what testimony is not credible and 2 what evidence undermines the claimant’s complaints.” Lester v. Chater, 81 F.3d 3 821, 834 (9th Cir. 1995). 4 Here, the ALJ provided four reasons in support of his credibility 5 determination. The Court discusses, and rejects, each in turn. 6 First, the ALJ found that Plaintiff’s “allegations of disabling pain are out of 7 proportion with the record.” (Administrative Record (“AR”) at 16.) However, an 8 ALJ “may not reject a claimant’s subjective complaints based solely on a lack of 9 objective medical evidence to fully corroborate the alleged severity of pain.” 10 Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991); Summers v. Bowen, 813 F.2d 11 241, 242 (9th Cir. 1987) (per curiam). Thus, as to this ground, the ALJ’s credibility 12 determination is inadequate. 13 Second, the ALJ found that Plaintiff had been conservatively treated with 14 Vicodin. (See AR at 20.) But “Vicodin qualifies as strong medication to alleviate 15 pain.” Velasquez v. Astrue, 2011 WL 1792590, at *5 (C.D. Cal. May 11, 2011) 16 (emphasis added) (citing Hung Thanh Le v. Astrue, 2010 WL 1854081, at *6 (C.D. 17 Cal. May 6, 2010). Moreover, Plaintiff had no health insurance with which to pay 18 for further treatment. (AR at 66 (“I have had no health insurance so [physical 19 therapy] was not possible.”)) Courts have repeatedly held that an inability to obtain 20 treatment due to financial constraints is not a proper reason to discount a claimant’s 21 credibility. See, e.g., Regennitter v. Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 22 1297 (9th Cir. 1999) (explaining that an ALJ may not reject “a claimant’s 23 complaints for lack of treatment when the record establishes that the claimant could 24 not afford it”); Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). Where, as 25 here, the ALJ did not challenge Plaintiff’s inability to afford greater treatment, it is 26 improper to reject Plaintiff’s credibility on this ground. 27 Third, the ALJ found that “[n]o treating, examining or non-examining doctor 28 has opined that claimant is totally disabled.” (AR at 20.) However, “a lack of 2 1 disability rating by a medical source is not a basis for discrediting a claimant.” 2 Heiman v. Astrue, 2011 WL 4829924, at *6 (C.D. Cal. Oct. 11, 2011) (citation 3 omitted). Furthermore, this reason is belied by the record. Indeed, the ALJ 4 specifically notes that “there are three San Bernadino County form letters in which 5 [Plaintiff’s treating physician] Dr. Lee stated that [Plaintiff] was permanently 6 disabled.” (AR at 21; see id. at 258, 273, 280.) Accordingly, this reason fails. 7 Fourth, the ALJ found that Plaintiff’s daily activities “could not be objectively 8 verified.” (Id. at 63.) However, “[s]uch a standard imposes an extremely heavy, and 9 unwarranted burden on Plaintiff.” Bernal v. Astrue, 2011 WL 1790052, at *6 (C.D. 10 Cal. May 9, 2011) (citation omitted). In particular, “[t]he ALJ cites no authority 11 suggesting that a claimant is required to offer objective verification, to a reasonable 12 degree of certainty, regarding his activities of daily living.” Haller v. Astrue, 2008 13 WL 4291448, at *5 (E.D. Cal. Sept. 18, 2008); see also Lester, 81 F.3d at 834 14 (“General findings are insufficient; rather, the ALJ must identify what testimony is 15 not credible and what evidence undermines the claimant’s complaints.”). Thus, as to 16 this ground, the ALJ improperly rejected Plaintiff’s credibility by imposing a 17 heightened standard. 18 Accordingly, for the reasons stated above, the Court determines that the ALJ 19 improperly rejected Plaintiff’s credibility. 20 B. Remand is Warranted 21 With error established, this Court has discretion to remand or reverse and 22 award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Where no 23 useful purpose would be served by further proceedings, or where the record has been 24 fully developed, it is appropriate to exercise this discretion to direct an immediate 25 award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004). 26 But where there are outstanding issues that must be resolved before a determination 27 can be made, or it is not clear from the record that the ALJ would be required to find 28 plaintiff disabled if all the evidence were properly evaluated, remand is appropriate. 3 1 See id. at 594. 2 Here, there are outstanding issues which must be resolved before a final 3 determination can be made. On remand, the ALJ shall reconsider Plaintiff’s 4 subjective complaints and the resulting functional limitations, and either credit 5 Plaintiff’s testimony or provide clear and convincing reasons supported by 6 substantial evidence for rejecting them. 7 Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 8 REVERSING the decision of the Commissioner denying benefits and 9 REMANDING the matter for further administrative action consistent with this 10 decision.1/ 11 12 Dated: March 18, 2014 13 ____________________________________ 14 Hon. Jay C. Gandhi United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 1/ In light of the Court’s remand instructions, it is unnecessary for the Court to 28 address Plaintiff’s remaining contention. (See Joint Stip. at 28-29.) 4

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