Robert G Brown v. Carolyn W Colvin

Filing 20

MEMORANDUM AND OPINION by Magistrate Judge Charles F. Eick, re: Cross MOTION for Summary Judgment 19 , MOTION for Summary Judgment or Remand 15 . IT ISHEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion. SEE ORDER FOR DETAILS. (dml)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ROBERT G. BROWN,

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Plaintiff,
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v.
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CAROLYN W. COLVIN, ACTING
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COMMISSIONER OF SOCIAL SECURITY,
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Defendant.
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___________________________________)

NO. ED CV 14-101-E

MEMORANDUM OPINION
AND ORDER OF REMAND

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Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS

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HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary

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judgment are denied and this matter is remanded for further

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administrative action consistent with this Opinion.

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PROCEEDINGS

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Plaintiff filed a complaint on January 15, 2014, seeking review

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of the Commissioner’s denial of disability benefits.

The parties

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filed a consent to proceed before a United States Magistrate Judge on

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March 1, 2014.

Plaintiff filed a motion for summary judgment on

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August 1, 2014.

Defendant filed a motion for summary judgment on

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October 2, 2014.

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without oral argument.

The Court has taken the motions under submission
See L.R. 7-15; Order, filed January 27, 2014.

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BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

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Plaintiff, a former fire alarm installer, asserts disability

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since July 17, 2009, based primarily on alleged ankylosing

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spondylitis1 (Administrative Record (“A.R.”) 38, 54, 124-25, 145-46).

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Plaintiff testified, “I have chronic pain throughout my back; lower

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back and upper back pain; my neck” (A.R. 40).

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could move his neck only a few degrees and also claimed his back is

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severely restricted in its range of motion (A.R. 40-41).

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reportedly is unable to use his hands to perform tasks for any length

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of time (A.R. 43).

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down during the day, and is “constantly out of breath” (A.R. 45-47).

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Plaintiff allegedly suffers these disabling symptoms despite having

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received medical treatments including injections with Humira,

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injections with steroids, injections with Toradol, and the use of

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prescription muscle relaxants and narcotic pain medication such as

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Vicodin (A.R. 161, 257-58, 297, 300, 304, 347).

Plaintiff claimed he

Plaintiff

Plaintiff reportedly is often fatigued, must lie

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Ankylosing spondylitis is “a progressive, degenerative
disease of the spine and joints which destroys cartilage and
causes bones to fuse together.” Liebig-Grigsby v. United States,
2003 WL 1090272, at *11 (N.D. Ill. 2003); see also Campbell v.
Astrue, 2011 WL 90312, at *3 n.10 (E.D. Cal. Jan. 7, 2011)
(“Ankylosing spondylitis is a long-term disease that causes
inflammation of the joints between the spinal bones, and the
joints between the spine and pelvis. It eventually causes the
affected spinal bones to join together”) (citations and
quotations omitted).
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An Administrative Law Judge (“ALJ”) found Plaintiff has severe

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“ankylosing spondylosis” which renders Plaintiff “unable to perform

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any past relevant work” (A.R. 13, 17).

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that Plaintiff retains the residual functional capacity to perform

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certain medium work, including the jobs of “kitchen helper” and

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“assembler” (A.R. 15-19).

The ALJ also found, however,

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In deeming Plaintiff not disabled, the ALJ determined that

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Plaintiff’s testimony regarding his pain and functional limitations

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was less than fully credible (A.R. 16-17).

The ALJ stated only two

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reasons for this credibility determination.

According to the ALJ,

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(1) Plaintiff’s allegations of pain severity and functional

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limitations “are greater than expected in light of the objective

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[medical] evidence of record” (A.R. 17); and (2) “Although the

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claimant has received treatment for the allegedly disabling

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impairment, that treatment has been essentially routine and/or

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conservative in nature.

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undergone [sic] aggressive treatment such as surgery for his back and

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neck pain.

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intervention suggests the claimant’s symptoms and limitations were not

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as severe as he alleged” (A.R. 16-17).

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review (A.R. 1-3).

There is no record of hospital admission or

The lack of more aggressive treatment or surgical

The Appeals Council denied

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STANDARD OF REVIEW

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Under 42 U.S.C. section 405(g), this Court reviews the

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Administration’s decision to determine if: (1) the Administration’s

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findings are supported by substantial evidence; and (2) the
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Administration used correct legal standards.

See Carmickle v.

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Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue,

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499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner

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of Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012).

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Substantial evidence is “such relevant evidence as a reasonable mind

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might accept as adequate to support a conclusion.”

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Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted);

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see Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).

Richardson v.

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DISCUSSION

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When an ALJ finds that a claimant’s medically determinable

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impairments reasonably could be expected to cause the symptoms

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alleged, the ALJ may not discount the claimant’s testimony regarding

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the severity of the symptoms without making “specific, cogent”

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findings, supported in the record, to justify discounting such

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testimony.

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also Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990); Varney

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v. Secretary, 846 F.2d 581, 584 (9th Cir. 1988).2

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conclusory findings do not suffice.

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882, 885 (9th Cir. 2004) (the ALJ’s credibility findings “must be

Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); see

Generalized,

See Moisa v. Barnhart, 367 F.3d

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In the absence of a finding of “malingering,” or at
least evidence of “malingering,” most recent Ninth Circuit cases
have applied the “clear and convincing” standard. See, e.g.,
Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014); Molina
v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Taylor v.
Commissioner of Social Security Admin., 659 F.3d 1228, 1234 (9th
Cir. 2011); Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D.
Cal. Dec. 19, 2000) (collecting cases). In the present case, the
ALJ’s findings are insufficient under either standard, so the
distinction between the two standards (if any) is academic.
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sufficiently specific to allow a reviewing court to conclude the ALJ

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rejected the claimant’s testimony on permissible grounds and did not

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arbitrarily discredit the claimant’s testimony”) (internal citations

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and quotations omitted); Holohan v. Massanari, 246 F.3d 1195, 1208

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(9th Cir. 2001) (the ALJ must “specifically identify the testimony

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[the ALJ] finds not to be credible and must explain what evidence

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undermines the testimony”); Smolen v. Chater, 80 F.3d 1273, 1284 (9th

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Cir. 1996) (“The ALJ must state specifically which symptom testimony

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is not credible and what facts in the record lead to that

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conclusion.”); see also Social Security Ruling 96-7p.

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In the present case, the ALJ found that Plaintiff’s “medically

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determinable impairment could reasonably be expected to cause the

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alleged symptoms. . . .” (A.R. 17).

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credibility of Plaintiff’s testimony regarding the severity of the

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symptoms for two stated reasons: (1) the “objective [medical] evidence

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of record”; and (2) the “essentially routine and/or conservative”

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nature of Plaintiff’s medical treatment (A.R. 16-17).

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reasons do not suffice on the present record.

The ALJ discounted the

These stated

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A lack of objective medical evidence to support the alleged

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severity of a claimant’s symptomatology “can be a factor” in rejecting

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a claimant’s credibility, but cannot “form the sole basis.”

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v. Barnhart, 400 F.3d 676, 681 (2005).

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supporting objective medical evidence cannot by itself justify the

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ALJ’s credibility determination in the present case.

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See Burch

Therefore, the alleged lack of

See id.

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A “conservative” course of treatment may sometimes properly

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discredit a claimant’s allegations of disabling symptoms.

See, e.g.,

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Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007), cert. denied,

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552 U.S. 1141 (2008) (treatment with over-the-counter pain medication

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is “conservative treatment” sufficient to discredit a claimant’s

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testimony regarding allegedly disabling pain).

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however, it is uncertain whether the ALJ accurately characterized

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Plaintiff’s treatment as “essentially routine and/or conservative in

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nature.”

In the present case,

See, e.g., Aguilar v. Colvin, 2014 WL 3557308, at *8 (C.D.

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Cal. July 18, 2014) (“there is evidence in the record that Plaintiff

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has been prescribed narcotic pain medications, such as Vicodin . . .

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It would be difficult to fault Plaintiff for overly conservative

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treatment when he has been prescribed strong narcotic pain

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medications”); Brunkalla-Saspa v. Colvin, 2014 WL 1095958, at *1 (C.D.

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Cal. March 18, 2014) (“[T]he ALJ found that Plaintiff had been

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conservatively treated with Vicodin. . . .

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strong medication to alleviate pain”) (citations and quotations

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omitted); Harrison v. Astrue, 2012 WL 527419, at *7 (D. Or. Feb. 16,

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2012) (nerve blocks and multiple steroid injections “certainly not

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conservative”); but see Nash v. Astrue, 2012 WL 6700582, at *9 (C.D.

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Cal. Dec. 21, 2012) (declining to “second guess” the ALJ’s

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characterization as “routine conservative treatment” the prescribing

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of pain medicine, muscle relaxers and Humira injections for ankylosing

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spondylitis).

But Vicodin qualifies as

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Regardless of the proper characterization of the treatment

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Plaintiff has received, the critical question here is whether

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substantial evidence supports the ALJ’s inference that “[t]he lack of
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more aggressive treatment or surgical intervention suggests

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[Plaintiff’s] symptoms and limitations were not as severe as he

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alleged” (A.R. 17).

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answered in the negative.

On the present record, this question must be

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The record does not contain any medical evidence that surgical

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intervention or other “aggressive” treatment would be an appropriate

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or effective response to Plaintiff’s claimed symptomatology.

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Plaintiff’s treating rheumatologist, who opined that Plaintiff is

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disabled, has not prescribed surgery or any other treatment Plaintiff

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has failed to undergo (A.R. 255-56, 348-52).

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physician.

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non-conservative treatment options where none exist.”

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Colvin, 2014 WL 4220909, at *11 (D. Or. Aug. 25, 2014); see Condon v.

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Astrue, 780 F. Supp. 2d 831, 837 (N.D. Iowa 2011) (reasoning that the

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absence from a lengthy medical record of any recommendation for “more

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aggressive treatment would seem to suggest no more aggressive

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treatment options exist”).

Neither has any other

“A claimant cannot be discredited for failing to pursue
Devee v.

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Defendant’s motion cites an internet article while arguing that

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“total joint replacement” can sometimes be a “treatment option” for

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ankylosing spondylitis (Defendant’s motion at 9 n.4).

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article, which is not part of the administrative record, indicates

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that “[t]he most commonly replaced joints are the knee and hip.”

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www.niams.nih.gov/Health_Info/Ankylosing_spondylitis/.

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complains of shortness of breath and restrictions in the movement of

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his neck, back and hands.

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not be a treatment option for any of these claimed symptoms.

The cited

See

Plaintiff

“Total joint replacement” presumably would

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Even if

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this Court could consider evidence outside the administrative record

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(which it cannot),3 the cited article provides no substantial evidence

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that “surgery for [Plaintiff’s] back and neck pain” or other “more

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aggressive treatment” would be an appropriate or effective medical

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response to Plaintiff’s claimed symptoms (A.R. 16-17).

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quoted speculation of the ALJ cannot substitute for medical evidence,

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and the speculation cannot support the inference on which the validity

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of the ALJ’s credibility determination depends.

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Weinberger, 522 F.2d at 1156 (an ALJ who is not qualified as a medical

The above-

See Day v.

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expert cannot make “his own exploration and assessment as to [the]

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claimant’s physical condition”); see also Rohan v. Chater, 98 F.3d

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966, 970-71 (7th Cir. 1996) (ALJ may not rely on his or her own lay

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opinion regarding medical matters); Ferguson v. Schweiker, 765 F.2d

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31, 37 (3d Cir. 1995) (same); cf. Rudder v. Colvin, 2014 WL 3773565,

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at *12 (N.D. Ill. July 30, 2014) (“The ALJ may be correct that

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disabling limitations from multiple sclerosis would result in more

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frequent treatment or need for medication.

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include evidence to support such a conclusion in his opinion because

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he is not qualified, on his own, to make such determinations”)

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(citations and quotations omitted).

However, the ALJ must

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In sum, Plaintiff’s failure to receive “more aggressive treatment
or surgical intervention” is an insufficient reason for discounting

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Absent circumstances justifying a “sentence six”
remand, the District Court is confined to a review of the
evidence contained within the administrative record. See 42
U.S.C. § 405(g); Mayes v. Massanari, 276 F.3d 453, 461-63 (9th
Cir. 2001); cf. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir.
1975) (ALJ should not go outside the record to consult medical
textbooks).
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Plaintiff’s credibility.

See Matamoros v. Colvin, 2014 WL 1682062, at

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*4 (C.D. Cal. April 28, 2014) (“The ALJ cannot fault [the claimant]

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for failing to pursue non-conservative treatment options if none

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exist”) (citation omitted); Clark v. Astrue, 2013 WL 254065, at *12

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(D. Ariz. Jan. 23, 2013) (“There is no evidence in the record that

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Plaintiff was prescribed a TENS unit, cane, walker, wheelchair, or

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directed to use a heating pad and thus the ALJ’s speculation that

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Plaintiff should have used those or other ‘treatment modalities’ is

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not a clear and convincing reason for discounting her credibility”);

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Townson v. Astrue, 2010 WL 2077187, at *15 (D. Kan. 2010) (“[O]n this

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record, it is speculative for the ALJ to assume that if claimant were

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as disabled as he claims, his doctors would have ordered more

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aggressive treatment. . . .

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doctors disbelieved plaintiff’s pain complaints, when the record does

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not show that they did”) (citations and quotations omitted).

This comment assumes that plaintiff’s

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Because the circumstances of this case suggest that further

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administrative review could remedy the ALJ’s errors, remand is

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appropriate.

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Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) (“Connett”)

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(remand is an option where the ALJ fails to state sufficient reasons

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for rejecting a claimant’s excess symptom testimony); but see Orn v.

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Astrue, 495 F.3d 625, 640 (9th Cir. 2007) (citing Connett for the

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proposition that “[w]hen an ALJ’s reasons for rejecting the claimant’s

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testimony are legally insufficient and it is clear from the record

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that the ALJ would be required to determine the claimant disabled if

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he had credited the claimant’s testimony, we remand for a calculation

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of benefits”) (quotations omitted); see also Ghanim v. Colvin, 763

McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see

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F.3d at 1166 (remanding for further proceedings where the ALJ failed

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to state sufficient reasons for deeming a claimant’s testimony not

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credible); Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014)

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(court may “remand for further proceedings, even though all conditions

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of the credit-as-true rule are satisfied, [when] an evaluation of the

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record as a whole creates serious doubt that a claimant is, in fact,

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disabled”); Vasquez v. Astrue, 572 F.3d 586, 600-01 (9th Cir. 2009) (a

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court need not “credit as true” improperly rejected claimant testimony

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where there are outstanding issues that must be resolved before a

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proper disability determination can be made); see generally INS v.

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Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative

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determination, the proper course is remand for additional agency

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investigation or explanation, except in rare circumstances).4

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There are outstanding issues that must be resolved
before a proper disability determination can be made in the
present case. For example, it is not clear whether the ALJ would
be required to find Plaintiff disabled for the entire claimed
period of disability even if Plaintiff’s testimony were fully
credited. See Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir.
2010).
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CONCLUSION

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For all of the foregoing reasons,5 Plaintiff’s and Defendant’s

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motions for summary judgment are denied and this matter is remanded

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for further administrative action consistent with this Opinion.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: October 20, 2014.

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_____________/S/_______________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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The Court has not reached any other issue raised by
Plaintiff except insofar as to determine that reversal with a
directive for the immediate payment of benefits would not be
appropriate at this time. “[E]valuation of the record as a whole
creates serious doubt that [Plaintiff] is in fact disabled.”
See Garrison v. Colvin, 759 F.3d at 1021.
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