Vincent Romero Vega v. Carolyn W Colvin

Filing 17

MEMORANDUM OPINION AND ORDER by Magistrate Judge Douglas F. McCormick (twdb)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EASTERN DIVISION

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VINCENT ROMERO VEGA,
Plaintiff,

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v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

) Case No. ED CV 14-1405-DFM
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) MEMORANDUM OPINION AND
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) ORDER
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Plaintiff Vincent Romero Vega (“Plaintiff”) appeals the denial of his

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application for Social Security disability benefits. The Court concludes that the

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Administrative Law Judge (“ALJ”) did not provide clear and convincing

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reasons adequately supported by substantial evidence for rejecting Plaintiff’s

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testimony. The ALJ’s decision is therefore reversed and the matter is

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remanded for award of benefits consistent with this opinion.

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I.

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PROCEDURAL BACKGROUND

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Plaintiff filed an application for supplemental security income on

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January 18, 2013, alleging that he became disabled on August 10, 2012.

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Administrative Record (“AR”) 134. After a hearing on January 22, 2014, the

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ALJ found that Plaintiff had severe impairments of status post resection colon

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cancer, stage II and Lynch syndrome. AR 15, 17. After finding that Plaintiff

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retained the residual functional capacity (“RFC”) to perform medium work

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with some additional physical limitations, the ALJ concluded that Plaintiff

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was not disabled because there was work available in significant numbers in

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the national and regional economies that he could perform. AR 17-20.

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II.

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ISSUES PRESENTED

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The parties dispute whether the ALJ provided clear and convincing

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reasons supported by substantial evidence for rejecting Plaintiff’s subjective

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symptom testimony. See Joint Stipulation (“JS”) at 4.

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III.

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DISCUSSION

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A.

Background
Plaintiff first sought emergency room treatment for abdominal pain and

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vomiting on December 24, 2012. See AR 281-82. Plaintiff stated that he had

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been having ongoing abdominal pain for three months. Id. He was given a

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diagnosis of constipation. AR 288-89. Plaintiff returned to the ER on January

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4, 2013 with the same complaints and was subsequently admitted to the

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hospital. See AR 207, 221. A colonoscopy performed the next day found a

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cancerous mass. AR 234, 236-37, 267-68. Plaintiff was transferred to another

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hospital on January 11, 2013, and then discharged two days later to seek

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surgical consultation. AR 280, 382. Plaintiff sought medical care for his

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condition several times in subsequent weeks. AR 363, 365, 384, 399, 427. On

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February 13, 2013, Plaintiff underwent a total proctocolectomy with ileoanal J-

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pouch, takedown of splenic flexure, diverting loop ileostomy creation, and

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flexible sigmoidoscopy. AR 402. Plaintiff was discharged on February 18,
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2013, and then readmitted for three days on March 2, 2013, with

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complications to his ileostomy site and “high ileostomy liquid output.” AR

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408, 410-412. Plaintiff was then admitted to the hospital for three days on May

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8, 2013 for a successful takedown of his diverting loop ileostomy. AR 386.

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Upon discharge on May 10, 2013, Plaintiff was instructed to call the

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hospital if he “continue[d] to have an excessive amount of bowel movements.”

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AR 388. On May 11, 2013, Plaintiff was re-admitted to the hospital “overall

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doing well” but with abdominal pain and possible partial bowel obstruction

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after taking too much Imodium. AR 390-91. He was discharged on May 14,

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2013, “[o]nce his bowel function was under control,” with instructions the he

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engage in no heavy lifting or strenuous activity for four weeks. AR 392. On

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May 17, 2013, Plaintiff was “do[ing] quite well,” having only three bowel

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movements per day and continuing on Imodium as needed for loose bowel

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movements. AR 397. On May 25, 2013 Plaintiff complained to medical staff of

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rectal irritation lasting two weeks as a result of “expectant diarrhea/loose

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stool.” AR 448. On May 30, 2013, Plaintiff sought medical attention for

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diarrhea suffered since his takedown surgery. AR 441. On June 11, 2013,

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Plaintiff complained of diarrhea to medical staff and was told to continue on

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Imodium. AR 440. On June 13, 2013, Plaintiff was “healing well,” but also

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reported constant, ongoing diarrhea. AR 439.1 On July 9, 2013, Plaintiff was

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seen by medical staff and was “doing very well,” but had “not noticed any

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change in his bowel movements.” AR 453. He was told to follow up in three

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months or sooner if he developed any new symptoms. Id.

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On November 6, 2013, Plaintiff saw his physician, Dr. Chung, for the
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Additionally, on September 9, 2013, Plaintiff filled out a disability
report noting that he had been to the hospital seeking treatment for his diarrhea
in June of 2013. See AR 193.

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follow up appointment, who noted that Plaintiff’s “main complaint has been

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the diarrhea.” AR 455. Plaintiff reported “bowel movements 15-16 times per

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day,” while “trying to take Imodium 4-5 tablets per day, but it [was] not

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controlling [the] diarrhea.”2 Id. Plaintiff claimed to be eating eight to nine large

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meals per day at that time, but also that he did not notice any significant

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difference in bowel movements depending on his food intake. Id. Dr. Chung

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stated that the “diarrhea” was “related to” Plaintiff’s “surgical resection.” Id.

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Plaintiff was advised to increase his fiber intake beyond the vegetables he was

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already consuming and to avoid fatty or greasy foods beyond his current

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practice of not eating much fried food. AR 455-56.

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On May 8, 2013, a consulting physician opined, based on medical

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records obtained through March of 2013, that Plaintiff could tolerate an RFC

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of light work, with the limitation that Plaintiff “will require proximity to

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bathroom facilities due to ileostomy.” AR 48-53. On August 7, 2013, a

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different consulting physician concurred with the first consulting physician,

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based on medical records obtained through July 19, 2013, assigning Plaintiff a

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light RFC with the same limitation describing proximity to a bathroom. AR

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58-64.

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At his January 2014 hearing before the ALJ, Plaintiff testified that his

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bowel movements kept him from working. AR 33. Plaintiff stated that he

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“use[d] the restroom about 15 times a day” with “frequent diarrhea,” and that

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his typical restroom usage could last up to twenty minutes each time. AR 34,

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36-37. He also testified that he had been employed as a framer for about two

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weeks in October 2013, but his ability was not what his employer expected

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since he was “constantly going to the restroom,” and he was subsequently laid

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Plaintiff also noted on October 29, 2013 that he was taking Lomedium
for diarrhea. AR 200.

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off. AR 31, 34-35.
A vocational expert (“VE”) testified at the hearing that there were a

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significant number of jobs available in the national economy for a person with

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the Plaintiff’s RFC of medium work. See AR 42-43. Under a second

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hypothetical with an RFC of medium work, but also a limitation of the worker

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missing three or more days per month due to various impairments, the VE

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testified that there were not any jobs in the national economy. Id. Under a

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third hypothetical with an RFC of medium work, but also a limitation of the

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worker taking two to five unscheduled twenty minute breaks per day, the VE

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testified that there were not any jobs in the national economy. Id. AR 44.

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In his written opinion on February 7, 2014, the ALJ found that the

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Plaintiff’s “medically determinable impairments could reasonably be expected

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to cause the alleged symptoms,” but that the Plaintiff’s “statements concerning

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the intensity, persistence and limiting effects of [his] symptoms are not credible

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to the extent they are inconsistent with” the ALJ’s RFC determination. AR at

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18. Here, the ALJ found that the Plaintiff met the first step of the two-part

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credibility determination, and also found no affirmative evidence of

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malingering. The ALJ went on to identify evidence which he saw as

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undermining Plaintiff’s credibility regarding his symptom testimony.

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The claimant’s examination findings do not establish the

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degree of limitations alleged in these proceedings . . . . On January

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25, 2013, the Plaintiff reported he felt well, had no abdominal

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pain, tolerated a regular diet and had regular bowel movements . .

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. . [¶] The claimant testified that since removing his colon, it takes

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him longer to use the restroom because his bowel movements no

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longer occur all at once. The claimant has not reported having to

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use the restroom for 20 minutes at one time to his treatment

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providers . . . . In the claimant’s May 17, 2013 examination he
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reported he felt well, had no abdominal pain, no nausea or

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vomiting. He reported having only 3 bowel movements a day

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which were easily controlled. He reported tolerating a regular diet

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and overall feeling well. The claimant was not opined to have any

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work restrictions. He did not report having any limitations in his

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activities of daily living, including the frequency and extended

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duration of bathroom usage he testified to. These admissions are

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inconsistent with his testimony. On July 9, 2013, the claimant was

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reported to clinically be doing very well. He was eating well. He

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had not noticed any abdominal pain or any change in his bowel

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movements.

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On November 6, 2013, the claimant reported eating a lot of

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food, eating 8-9 large meals per day. He had bowel movements 15-

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16 times per day. The claimant was encouraged to increase his

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fiber intake and was prescribed Lomotil. The claimant did not

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report having that frequency of bathroom usage when he was

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eating normal meals, only when he was eating 8-9 large meals a

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day. The undersigned finds that the claimant’s medical records do

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not establish a need for unscheduled breaks because his treatment

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providers have not opined such breaks would be needed and his

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longitudinal records do not establish the frequency or duration of

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bathroom usage alleged in these proceedings.

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AR 18-19 (citations omitted).
The ALJ also gave the consulting physicians’ opinions limited weight

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because “they consider the Plaintiff’s condition with chemotherapy, which

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Plaintiff has not undergone.” AR 19. The ALJ found Plaintiff able to “perform

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medium work” because “[h]is treatment providers have not found him to have

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greater restrictions.” Id.
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B.

Applicable Law
To determine whether a claimant’s testimony about subjective pain or

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symptoms is credible, an ALJ must engage in a two-step analysis. Vasquez v.

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Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (citing Lingenfelter, 504 F.3d at

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1035-36). First, the ALJ must determine whether the claimant has presented

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objective medical evidence of an underlying impairment which could

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reasonably be expected to produce the alleged pain or other symptoms.

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Lingenfelter, 504 F.3d at 1036. Once the claimant produces medical evidence

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of an underlying impairment, the Commissioner may not discredit the

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claimant's testimony as to the severity of symptoms merely because they are

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unsupported by objective medical evidence. Bunnell v. Sullivan, 947 F.2d 341,

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343 (9th Cir. 1991) (en banc). To the extent that an individual’s claims of

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functional limitations and restrictions due to alleged symptoms are reasonably

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consistent with the objective medical evidence and other evidence, the

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claimant’s allegations will be credited. SSR 96-7p, 1996 WL 374186, at *2

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(July 2, 1996) (explaining 20 C.F.R. § 416.929(c)(4)).
If the claimant meets the first step and there is no affirmative evidence of

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malingering, the ALJ must provide specific, clear and convincing reasons for

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discrediting a claimant’s complaints. Robbins, 466 F.3d at 883. “General

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findings are insufficient; rather, the ALJ must identify what testimony is not

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credible and what evidence undermines the claimant’s complaints.” Reddick,

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157 F.3d at 722 (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)),

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The ALJ must consider a claimant’s work record, observations of medical

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providers and third parties with knowledge of claimant’s limitations,

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aggravating factors, functional restrictions caused by symptoms, effects of

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medication, and the claimant’s daily activities. Smolen v. Chater, 80 F.3d

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1273, 1284 & n.8 (9th Cir. 1996).

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C.

Analysis

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The ALJ relied almost entirely on the medical record to discount

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Plaintiff’s symptom testimony. A lack of objective medical support may be a

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legally sufficient reason to discount a claimant’s subjective symptom

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testimony, but the ALJ must specifically explain how the evidence undermines

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the testimony. See Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (“The

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ALJ must provide ‘clear and convincing’ reasons to reject a claimant’s

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subjective testimony, by specifically identifying ‘what testimony is not credible

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and what evidence undermines the claimant’s complaints.’”) (quoting Lester,

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81 F.3d at 834). For the reasons set forth below, the Court finds that the ALJ’s

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reasons for discounting Plaintiff’s symptom testimony are not clear and

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convincing.

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First, the ALJ noted that “[t]he Plaintiff was not observed to have any

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difficulties in his January 2013 interview with the field office representative.”

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AR 18. This field office report was conducted on January 18, 2013, before

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Plaintiff’s total proctolectomy. Since Plaintiff did not complain of diarrhea

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until after his surgery in May of 2013, this observation bears little if any

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relevance to Plaintiff’s diarrhea claims.

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Second, the ALJ noted the Plaintiff “testified that he uses the restroom

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15 times a day and has frequent diarrhea. This has been going on since his

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reversal in May . . . . He testified that he can spend up to 20 minutes each

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usage. The claimant has not reported this to his treatment providers.” AR 18.

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The ALJ then concluded that Plaintiff’s “longitudinal records do not establish

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the frequency or duration of bathroom usage alleged.” AR 19. This conclusion

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is difficult to reconcile with the substantial evidence in the medical record

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supporting Plaintiff’s claims of diarrhea. See Ramirez v. Colvin, No. 12-5308,

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2013 WL 1752453, at *5 (C.D. Cal. Apr. 22, 2013) (“Also militating against

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finding that the ALJ’s first reason was a legally sufficient reason is the ALJ’s
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failure to discuss significant and probative evidence that supported plaintiff’s

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subjective symptom testimony.”). Although the ALJ references Plaintiff’s May

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17, 2013 examination, where the doctor reported Plaintiff having three easily

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controlled bowel movements per day, the ALJ ignores Plaintiff’s May 25, 2013

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complaint of “expectant diarrhea/loose stool” for the previous two weeks;

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Plaintiff’s May 30, 2013 complaint of diarrhea since the takedown surgery;

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Plaintiff’s June 11, 2013 complaint of ongoing diarrhea; and Plaintiff’s June

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13, 2013 complaint of ongoing diarrhea. See AR 448, 441, 440, 439. The ALJ’s

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failure to acknowledge these consistent complaints also undermines his

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apparent conclusion that Plaintiff’s report on July 9, 2013 that he had not

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noticed any change in his bowel movements meant he was not having

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diarrhea, given that this exam directly followed four consecutive visits to the

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doctor with complaints of diarrhea. See AR 453. Finally, the ALJ cites to

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Plaintiff’s November 6, 2013 exam to support his proposition that Plaintiff’s

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high number of bowel movements was solely a result of his large intake of

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food. AR 19. The ALJ fails to note that during this visit, Plaintiff also stated

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that he saw no change in his bowel movements as a result of changing his food

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intake. AR 455. The ALJ also fails to address the report of diarrhea during this

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exam, where Dr. Chung stated that Plaintiff’s ongoing diarrhea was related to

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his surgical resection. Id. The ALJ may not make an adverse credibility

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determination by cherry-picking from the record. See Reddick, 157 F.3d at 722

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(reversing ALJ’s adverse credibility determination where it was “not entirely

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accurate” with regard to the record).

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Third, the ALJ stated that Plaintiff’s failure to report to his medical

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professionals “any limitations in his activities of daily living, including the

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frequency and extended duration of bathroom usage he testified to,” was

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“inconsistent with [Plaintiff’s] testimony.” AR 19. The ALJ is entitled to

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consider inconsistent statements when assessing a claimant’s credibility. See
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Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Thomas v. Barnhart,

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278 F.3d 947, 958-59 (9th Cir. 2002). However, the ALJ failed to cite any

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specific clinical evidence contradicting Plaintiff’s testimony; the ALJ merely

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points to the absence of information in the record. See Regennitter v.

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Commissioner of Social Sec. Admin., 166 F.3d 1294, 1297 (9th Cir. 1999)

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(ALJ’s finding that claimant’s testimony was “inconsistent with clinical

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observations” was not clear and convincing reason because the ALJ “failed to

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specify what complaints [were] contradicted by what clinical observations”).

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The Court finds no such inconsistency for the reasons stated above.

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Finally, the ALJ also found Plaintiff to be not fully credible because the

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“his treatment providers have not opined such [bathroom] breaks would be

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needed.” AR 19. However, there is no opinion of a treating physician in the

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record. To the extent that the ALJ thought the opinion of a treating physician

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was necessary, the ALJ has the affirmative duty to fully develop the record.

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Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001); see also Webb v.

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Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). The ALJ’s duty exists whether or

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not plaintiff is represented by counsel. Tonapetyan v. Halter, 242 F.3d 1144,

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1150 (9th Cir. 2001). The ALJ did not state that he needed a treating

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physician’s opinion either at the hearing or in his decision. Therefore, the

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absence of a treating physician’s opinion about Plaintiff’s need for bathroom

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breaks cannot undermine Plaintiff’s credibility.

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Because the ALJ failed to provide clear and convincing reasons

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undermining Plaintiff’s subjective symptom testimony, and the record provides

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substantial evidence consistent with Plaintiff’s testimony that he suffered from

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diarrhea from May 2013 until January 2014, the Court finds that the ALJ’s

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finding to the contrary was legal error. See Quinnin v. Colvin, No. 12-01133,

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2013 WL 3333026 (D. Ore. July 1, 2013) at *4-5 (finding that the ALJ

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improperly failed to credit plaintiff’s testimony that his sigmoid colectomy
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created a need to frequently use the restroom for an extended period of time,

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resulting in the need to take up to three 30 to 60 minute breaks per day)

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D.

A Remand for Award of Benefits Is Appropriate

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Where, as here, the Court finds that the ALJ improperly discredited

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Plaintiff’s testimony, the Court has discretion as to whether to remand for

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further proceedings. See Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir.

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2000). Where no useful purpose would be served by further administrative

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proceedings, or where the record has been fully developed, it is appropriate

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under the so-called “credit-as-true” rule to exercise this discretion to direct an

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immediate award of benefits. Id. at 1179 (noting that “the decision of whether

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to remand for further proceedings turns upon the likely utility of such

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proceedings”).

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Under this credit-as-true framework, the Court must apply the following

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three-part standard, each part of which must be satisfied before the Court

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remands to the ALJ with instructions to award benefits: “(1) the record has

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been fully developed and further administrative proceedings would serve no

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useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for

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rejecting evidence, whether claimant testimony or medical opinion; and (3) if

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the improperly discredited evidence were credited as true, the ALJ would be

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required to find the claimant disabled on remand.” Garrison v. Colvin, 795

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F.3d 995, 1020 (9th Cir. 2014).

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The ALJ found Plaintiff to have an RFC of medium work. The ALJ

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failed to account for Plaintiff’s need to be near a restroom in the RFC. See

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Jackson v. Colvin, No. 12-01323, 2013 WL 5288108, at *12 (D.S.C. Sept. 16,

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2013) (noting that the ALJ “accounted for the claimant’s reported chronic

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diarrhea in the above residual functional capacity by requiring he have close

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access to a restroom”). The VE testified that there were no jobs in the economy

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for a worker with Plaintiff’s RFC taking two to five unscheduled twenty
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minute breaks per day. If the Plaintiff’s testimony is credited as true, he would

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need that many breaks per workday due to diarrhea post-takedown, and would

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not be employable. See Quinnin, 2013 WL 3333026, at *5 (“This testimony,

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credited as true, falls squarely within the types of excessive breaks that the VE

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testified would render a claimant unemployable.”). Therefore, the Court

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concludes that a remand for award of benefits is appropriate.

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IV.

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CONCLUSION

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For the reasons stated above, the decision of the Social Security

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Commissioner is REVERSED and the action is REMANDED for award of

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benefits consistent with this opinion.

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Dated: May 08, 2015

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______________________________
______________________________
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DOUGLAS F. McCORMICK
F M CORMICK
United States Magistrate Judge

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