Amy Lyn Smith v. Carolyn W Colvin

Filing 23

JUDGMENT by Magistrate Judge Charles F. Eick. It is Hereby Adjudged that the decision of the Commissioner of the Social Security Administration is reversed in part and the matter is remanded for further administrative action consistent with the Memorandum Opinion and Order of Remand filed concurrently herewith. (MD JS-6, Case Terminated). (sp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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AMY LYN SMITH,

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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 14-2473-E

JUDGMENT

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IT IS HEREBY ADJUDGED that the decision of the Commissioner

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of the Social Security Administration is reversed in part and the

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matter is remanded for further administrative action consistent with

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the Memorandum Opinion and Order of Remand filed concurrently

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herewith.

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DATED: October 7, 2015.

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/S/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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AMY LYN SMITH,

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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 14-2473-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 December 2, 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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February 15, 2015.

Plaintiff filed a motion for summary judgment on

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July 13, 2015.

Defendant filed a motion for summary judgment on

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September 11, 2015.

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without oral argument.

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2014.

The Court has taken the motions under submission
See L.R. 7-15; “Order,” filed December 8,

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BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

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Plaintiff alleges disability since September 12, 2010, based on
degenerative disk disease, a herniated disk, and sciatica

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(Administrative Record (“A.R.”) 161-73, 193, 198).

An Administrative

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Law Judge (“ALJ”) found Plaintiff has severe degenerative disk disease

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of the lumbar spine with multi-level neural foramina stenosis, facet

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joint dysfunction with spondylosis, post-laminectomy syndrome, and

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parasthesia in the right upper and lower extremities, which prevent

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Plaintiff from performing her past relevant work (A.R. 28, 30

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(adopting diagnoses at A.R. 237, 245, and vocational expert testimony

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at A.R. 69)).

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residual functional capacity to perform a limited range of light work,

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including the light jobs of electronics worker and production

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solderer, and the sedentary jobs of addresser and tube operator (A.R.

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28-31 (relying on non-examining State agency physician residual

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functional capacity assessments at A.R. 76-81, 86-91, 95-100, and

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vocational expert testimony at 69-70)).1

The ALJ also found, however, that Plaintiff retains the

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In finding Plaintiff not disabled, the ALJ determined that

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Plaintiff’s testimony regarding her pain and functional limitations

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There are no opinions from examining physicians
concerning Plaintiff’s residual functional capacity.
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was less than fully credible, based on the objective medical evidence

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and the allegedly “conservative” nature of Plaintiff’s medical

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treatment (A.R. 29-30).

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medical records but denied review (A.R. 14-19).

The Appeals Council considered additional

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STANDARD OF REVIEW

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

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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).2

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claimant carries the burden of proving a disability.

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disability justifies a denial of benefits.”

See Carmickle v.

Richardson v.

“The

Failure to prove

Ukolov v. Barnhart, 420

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If the evidence can support either outcome,
the court may not substitute its judgment for
that of the ALJ. But the Commissioner’s
decision cannot be affirmed simply by
isolating a specific quantum of supporting
evidence. Rather, a court must consider the
record as a whole, weighing both evidence
that supports and evidence that detracts from
the [administrative] conclusion.

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Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations
and quotations omitted).
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F.3d 1002, 1004 (9th Cir. 2005) (citations omitted).

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Where, as here, the Appeals Council considered additional

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evidence but denied review, the additional evidence becomes part of

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the record for purposes of the Court’s analysis.

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Commissioner, 682 F.3d at 1163 (“[W]hen the Appeals Council considers

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new evidence in deciding whether to review a decision of the ALJ, that

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evidence becomes part of the administrative record, which the district

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court must consider when reviewing the Commissioner’s final decision

See Brewes v.

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for substantial evidence”; expressly adopting Ramirez v. Shalala, 8

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F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d

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1228, 1232 (2011) (courts may consider evidence presented for the

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first time to the Appeals Council “to determine whether, in light of

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the record as a whole, the ALJ’s decision was supported by substantial

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evidence and was free of legal error”); Penny v. Sullivan, 2 F.3d 953,

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957 n.7 (9th Cir. 1993) (“the Appeals Council considered this

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information and it became part of the record we are required to review

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as a whole”); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b).

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DISCUSSION

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When, as in the present case, an ALJ finds that a claimant’s

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medically determinable impairments reasonably could be expected to

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cause the symptoms alleged, the ALJ may not discount the claimant’s

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testimony regarding the severity of the symptoms without making

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“specific, cogent” findings, supported in the record, to justify

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discounting such testimony.

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(9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995);

See Berry v. Astrue, 622 F.3d 1228, 1234

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but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th Cir. 1996)

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(indicating that ALJ must state “specific, clear and convincing”

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reasons to reject a claimant’s testimony where there is no evidence of

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malingering).3

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Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) (the ALJ’s

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credibility findings “must be sufficiently specific to allow a

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reviewing court to conclude the ALJ rejected the claimant’s testimony

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on permissible grounds and did not arbitrarily discredit the

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claimant’s testimony”) (internal citations and quotations omitted);

Generalized, conclusory findings do not suffice.

See

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Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (the ALJ

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must “specifically identify the testimony [the ALJ] finds not to be

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credible and must explain what evidence undermines the testimony”);

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Smolen v. Chater, 80 F.3d at 1284 (“The ALJ must state specifically

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which symptom testimony is not credible and what facts in the record

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lead to that conclusion.”); see also Social Security Ruling (“SSR”)

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96-7p.

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In the absence of an ALJ’s reliance on evidence of
“malingering,” most recent Ninth Circuit cases have applied the
“clear and convincing” standard. See, e.g., Burrell v. Colvin,
775 F.3d 1133, 1136-37 (9th Cir. 2014); Treichler v.
Commissioner, 775 F.3d 1090, 1102 (9th Cir. 2014); Ghanim v.
Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014); Garrison v.
Colvin, 759 F.3d 995, 1014-15 & n.18 (9th Cir. 2014); Chaudhry v.
Astrue, 688 F.3d 661, 670, 672 n.10 (9th Cir. 2012); Molina v.
Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); see also Ballard v.
Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000)
(collecting earlier 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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I.

Plaintiff’s Testimony

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Plaintiff testified that chronic lower back pain prevents her

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from working (A.R. 47, 58).

Plaintiff previously worked at Wendy’s

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but reportedly had to quit because she could not do the standing and

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the cleanup required for that job (A.R. 57-58).4

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she could not sit for hours at a time because prolonged sitting causes

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her back to cramp up (A.R. 58, 62).5

She assertedly needs the option

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to sit and stand at will (A.R. 58).

Plaintiff said that she has daily

Plaintiff also said

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right side pain that sometimes causes swelling in her right hand and

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loss of strength, or numbness in her right foot, as well as neck pain

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(A.R. 59, 61-62, 66; but see A.R. 199, 226 (reporting left side pain

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and numbness)).

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than five pounds; (2) sit for no longer than 30 minutes at a time

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before having to stand for 15 minutes to relieve her pain; and

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(3) stand for 40 minutes in one place before having to sit for 20 to

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30 minutes to relieve her pain (A.R. 64-65).

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four to five bad days a month when she stays in bed (A.R. 66).

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also stated that her pain medications make her drowsy and “feel

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Plaintiff said she thought she could:

(1) lift less

Plaintiff said she has

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Although Plaintiff said she stopped working in 2010,
records reflected self-employment earnings of approximately
$6,900 in 2011 (A.R. 56-57; see also A.R. 178, 181, 183, 185,
187). Plaintiff said these records must be mistaken; she
testified that she had not filed for self-employment (A.R. 57).
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In a report dated June 26, 2012, a field office
examiner observed that Plaintiff appeared to have difficulty
standing, walking, and sitting (A.R. 202-04).
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She

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dumbfounded” (A.R. 64; see also A.R. 226).6

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Plaintiff described her treatment to date as taking pain

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medications and sometimes receiving shots.

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“supposed to have been” receiving cortisone injections and physical

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therapy but such treatments had not been started as of the date of the

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hearing.

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1990 (A.R. 59-60 (describing the surgery as a “defusion” where the

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disk was herniated)).

See A.R. 58-60.

She reportedly was

She had surgery for a herniated disk in

Plaintiff claimed that she did not have further

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treatment because her doctors did not provide sufficient paperwork for

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further treatment (A.R. 60).

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being sworn, Plaintiff also said that her insurance was “stopped” and,

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for a period of time, she lost her primary care physician, such that

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all she could do for her condition was get pain pills (A.R. 42, 45).

At the outset of the hearing, prior to

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Plaintiff said that her pain medication sometimes does not work

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to treat her pain, and that she takes hot baths or goes to the

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emergency room for shots (A.R. 60-62).

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taking Norco, Robaxin and Motrin, and also was using Bengay (A.R. 63,

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67).

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Plaintiff reportedly was

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In a Disability Report - Appeal form, Plaintiff
reported that she had depression beginning in March of 2012 (A.R.
205). In an “Exertion Questionnaire” dated May 26, 2012,
Plaintiff reported that she rests or naps every three to four
hours during the day (A.R. 201).
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II.

Summary of the Medical Record

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There are relatively few medical records, and the records appear

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incomplete.

See A.R. 235-68.

All the treatment records provided are

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from Arrowhead Regional Medical Center (id.).

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On January 28, 2011, Plaintiff presented for a medication refill,

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complaining of lower back pain (A.R. 239-40).

She was given Norco and

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Robaxin and was told to return to the clinic in one to two months or

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as needed (A.R. 239).7

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complaints of lower back pain and right upper and lower extremity

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numbness (A.R. 237).

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although Plaintiff states that she has chronic back pain, Plaintiff

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had “not been seen in this clinic for many, many months” (A.R. 237).

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Plaintiff reported that her pain medications were not working and

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asked for a referral for pain management (A.R. 237).8

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appeared to be in “moderate distress” related to her back pain, unable

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to sit still in her chair and alternated from seated to standing

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position throughout her visit (A.R. 237).

Plaintiff returned on September 19, 2011, with

Her examining nurse practitioner noted that

Plaintiff

However, Plaintiff

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The treatment provider’s prescription notes indicate
that Plaintiff was given one month’s supply of Norco and Robaxin
with two refills. See A.R. 239 (noting Norco “TID 90(2)” and
Robaxin “TID 90(2)”; TID means three times a day); see also
Michael Bihari, M.D., Prescription Abbreviations: Understanding
What Your Doctor Writes on a Prescription (Dec. 16, 2014)
(available online at http://healthinsurance.about.com/od/
prescriptiondrugs/a/understanding_MD_Rx.htm (last visited
Sept. 29, 2015).
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It is not clear whether Plaintiff obtained any pain
medication refills between her January and September 2011 office
visits.
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reportedly was able to get on and off the examination table with no

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obvious difficulty (A.R. 237).

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low back pain secondary to degenerative disk disease and right upper

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and lower extremity parasthesia (A.R. 237).

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Ultram, and Neurontin, and also was given an intramuscular Toradol

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injection (A.R. 238).9

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stretching and back exercises daily (A.R. 238).

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practitioner indicated that Plaintiff would be referred for pain

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management and that an electromyogram (“EMG”) of her right extremities

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Plaintiff was diagnosed with chronic

She was prescribed Norco,

Further, Plaintiff was encouraged to do
The nurse

would be ordered (A.R. 238).10

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On January 3, 2012, Plaintiff presented for a pap smear and it

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was noted that Plaintiff had not been given an appointment for pain

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management as discussed in her September visit (A.R. 235-36).

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Plaintiff complained of worsening pain and right upper and lower

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extremity numbness (A.R. 236).

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Neurontin, and also was using a heating pad and Bengay for her pain

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(A.R. 236).

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day because the medications only help “at times” (A.R. 236).

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reportedly had gone to the emergency room and had been given Baclofen

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She was taking Norco, Ultram, and

She reported that she does not take her medications every
She

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The treatment provider’s notes indicate that Plaintiff
was given one month’s supply of Norco, Ultram, and Neurontin,
with one refill. See A.R. 238 (noting Norco “one p.o. b.i.d.
p.r.n., #60, with one refill”; Ultram “one p.o. t.i.d., #90, with
one refill”; Neurontin “one p.o. q.h.s. for 1 day and then b.i.d.
for 1 day and then t.i.d. is prescribed, #90, with one refill”;
b.i.d. means twice a day).
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There is no EMG study in the record, although the
record mentions that one was done (A.R. 236).
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and Norco for pain (A.R. 236).11

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home but reported that she experiences pain afterwards (A.R. 236).

She was trying some exercises at

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On February 6, 2012, Plaintiff returned, complaining of daily low

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back pain (A.R. 244).

On examination, Plaintiff had positive straight

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leg raising and pain with flexion and extension (A.R. 245).

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was diagnosed with diffuse degenerative disk disease, multilevel

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foraminal stenosis, mild to moderate facet joint dysfunction with

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spondylosis without myelopathy, and post-laminectomy syndrome (A.R.

Plaintiff

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245).

She was ordered to continue her medications per her primary

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care provider, and the provider supposedly would follow up with

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Plaintiff regarding a possible lumbar epidural steroid injection (A.R.

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245).

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On April 26, 2012, Plaintiff presented to the Spine Clinic for a

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follow-up examination after having had a “draining lumbar spine wound

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[and] dural tear [status post] [incision and drainage] [and] dural

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repair” (A.R. 242-43).12

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Plaintiff could be “d/c’d” [discontinued] for this illness and

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encouraged ambulation (A.R. 242).

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straight leg raising bilaterally (A.R. 242).

Her treating provider indicated that

Plaintiff reportedly had positive

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Plaintiff presented to the Arrowhead emergency room on June 29,
2012, complaining of, inter alia, low back pain radiating to the left

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There are no treatment notes from this reported
emergency room visit.
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There are no treatment notes in the record regarding
the incision, drainage, and repair.
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lower extremity (A.R. 251).

She reportedly had negative straight leg

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raising (A.R. 252).

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Plaintiff returned to the emergency room on November 4, 2012,

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complaining of left arm numbness (A.R. 248).

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medication refill (A.R. 248).

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lower back pain with suspected cervical radiculopathy and ordered her

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medication refilled (A.R. 249).

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to the emergency room, complaining of jaw pain and lumbar back pain

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(A.R. 256).

Her medications were refilled (A.R. 252).

She requested a

Her treating physician noted chronic

On May 29, 2013, Plaintiff returned

She was given Norco and Robaxin for her pain (A.R. 257).

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A lumbar spine x-ray from this visit showed reversed lordotic lumbar

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curvature, diskitis at L2-L3 (occurring since February 2009), and

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advanced degenerative change at L5-S1 (stable and unchanged from

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February 2009) (A.R. 258).

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In addition to the above-described records, the Appeals Council

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reviewed an MRI of Plaintiff’s lumbar spine dated October 22, 2013,

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which showed multilevel degenerative disk disease and facet

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hypertrophy causing multilevel neural foraminal narrowing (A.R. 261-

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62).

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III. Analysis

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As indicated above, the ALJ discounted the credibility of

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Plaintiff’s testimony regarding the severity of the symptoms based on

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the objective medical record and the allegedly conservative nature of

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Plaintiff’s medical treatment (A.R. 29-30).

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(1) Plaintiff “has not had much treatment” and the treatment she has

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received has been “conservative”; and (2) the objective medical
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According to the ALJ,

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record, inter alia: (a) did not show sensory deficits in Plaintiff’s

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extremities “other than in a non-dermatomal pattern,” which the ALJ

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asserted was “suggestive of exaggeration”; and (b) showed pain

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medication refills (instead of forgoing refills), even though

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Plaintiff claimed that the pain medication did not always help.

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A.R. 29-30.

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insufficient on the present record.

See

As discussed below, these stated reasons are legally

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First, the fact (if it is a fact) that a claimant has not

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received much treatment sometimes can be a sufficient reason for

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finding the claimant not credible.

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603 (9th Cir. 1989) (unexplained or inadequately explained failure to

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seek or follow prescribed course of treatment can cast doubt on

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claimant’s credibility); see also, e.g., Burch v. Barnhart, 400 F.3d

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676, 681 (9th Cir. 2005) (lack of consistent treatment such as where

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there was a three to four month gap in treatment properly considered

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in discrediting claimant’s back pain testimony); Meanel v. Apfel, 172

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F.3d 1111, 1114 (9th Cir. 1999) (in assessing the credibility of a

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claimant’s pain testimony, the Administration properly may consider

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the claimant’s failure to request treatment and failure to follow

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treatment advice) (citing Bunnell v. Sullivan, 947 F.2d 341, 346 (9th

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Cir. 1991) (en banc)); Johnson v. Shalala, 60 F.3d 1428, 1434 (9th

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Cir. 1995) (absence of treatment for back pain during half of the

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alleged disability period, and evidence of only “conservative

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treatment” when the claimant finally sought treatment, sufficient to

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discount claimant’s testimony); Matthews v. Shalala, 10 F.3d 678,

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679-80 (9th Cir. 1993) (permissible factors in assessing the

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credibility of pain testimony include limited treatment and minimal

See Fair v. Bowen, 885 F.2d 597,

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use of medications).

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[An] individual’s statements may be less credible if the

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level or frequency of treatment is inconsistent with the

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level of complaints, or if the medical reports or records

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show that the individual is not following the treatment as

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prescribed and there are no good reasons for this failure.

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However, the adjudicator must not draw any inferences about

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an individual’s symptoms and their functional effects from a

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failure to seek or pursue regular medical treatment without

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first considering any explanations that the individual may

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provide, or other information in the case record, that may

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explain infrequent or irregular medical visits or failure to

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seek medical treatment.

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SSR 96-7p at *7.

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“binding on ALJs.”

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Social Security rulings such as SSR 96-7p are

Cir. 1990).

Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th

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In the present case, Plaintiff said that she did not seek more

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treatment due to a lack of insurance for a period of time and a lack

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of approval for further treatment (A.R. 42, 45, 58-61).

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that she did not have a primary doctor for part of the time period,

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and did want to come in just for pain medication since the

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She stated

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medication did not always work for her (A.R. 45, 60).13

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not mention any of these explanatory statements in his decision,

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perhaps implicitly disbelieving the statements while citing

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Plaintiff’s lack of treatment as a reason to discount her credibility.

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See A.R. 29-30.

The ALJ did

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The ALJ erred by relying, at least in part, on Plaintiff’s

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alleged lack of treatment without expressly considering Plaintiff’s

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proffered explanation regarding why she did not receive more

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treatment.

See SSR 96-7p; Orn v. Astrue, 495 F.3d 625, 638 (9th Cir.

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2007) (“Orn’s failure to receive medical treatment during the period

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that he had no medical insurance cannot support an adverse credibility

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finding”); Jesus v. Colvin, 2015 WL 4999501, at *8 (N.D. Cal. Aug. 20,

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2015) (“the Ninth Circuit has consistently held that when a claimant

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suffers from financial hardships, a failure to obtain treatment is not

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a sufficient reason to deny benefits”; citing Orn); Oliverio v.

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Colvin, 2015 WL 1894299, at *5 & n.6 (C.D. Cal. Apr. 27, 2015)

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(claimant could not be faulted for failing to attend more counseling

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sessions where her insurance did not cover them; citing Orn); Fisher

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v. Colvin, 2015 WL 1442064, at *17 (E.D. Cal. Feb. 20, 2015) (ALJ

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The record reflects that Plaintiff’s providers referred
Plaintiff for additional treatment or discussed with Plaintiff
“possible” additional treatment (i.e., pain management, epidural
injections) (A.R. 235-36, 238, 245), and that Plaintiff
complained in one visit that her pain management referral had not
resulted in an appointment (A.R. 235). The record also reflects
that Plaintiff was “strongly encouraged” to schedule her
Arrowhead appointments with the same provider since she was
getting narcotic pain medications (A.R. 238). From the limited
record, it appears that, with the exception of her visit to the
spine clinic (A.R. 242), treatment was being provided by
different nurse practitioners. See A.R. 235, 238, 245.
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could not reject credibility for lack of treatment where claimant

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testified that she could not afford to pay for treatment; citing Orn);

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Marquez v. Astrue, 2010 WL 1709204, at *2 (C.D. Cal. Apr. 27, 2010)

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(ALJ erred by relying on lack of treatment without expressly

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considering claimant’s explanation that she did not have health

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insurance and could not afford to see a doctor; citing Orn).

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Second, it is true that a “conservative” course of treatment

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sometimes properly may discredit a claimant’s allegations of disabling

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symptoms.

See, e.g., Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir.

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2007), cert. denied, 552 U.S. 1141 (2008) (treatment with over-the-

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counter pain medication is “conservative treatment” sufficient to

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discredit a claimant’s testimony regarding allegedly disabling pain).

14

In the present case, however, it is uncertain whether the ALJ

15

accurately characterized Plaintiff’s treatment as “conservative.”

16

See, e.g., Childress v. Colvin, 2014 WL 4629593, at *12 (N.D. Cal.

17

Sept. 16, 2014) (“[i]t is not obvious whether the consistent use of

18

[Norco] (for several years) is ‘conservative’ or in conflict with

19

Plaintiff’s pain testimony”); Aguilar v. Colvin, 2014 WL 3557308, at

20

*8 (C.D. Cal. July 18, 2014) (“there is evidence in the record that

21

Plaintiff has been prescribed narcotic pain medications, . . . It

22

would be difficult to fault Plaintiff for overly conservative

23

treatment when he has been prescribed strong narcotic pain

24

medications”).

25
26

Third, while the ALJ may properly have relied on “a report of

27

negative findings from the application of medically acceptable

28

clinical and laboratory diagnostic techniques” in considering
15

1

Plaintiff’s credibility, “allegations concerning the intensity and

2

persistence of pain or other symptoms may not be disregarded solely

3

because they are not substantiated by objective medical evidence.”

4

see SSR 96-7p at *6; see also Burch v. Barnhart, 400 F.3d at 681 (lack

5

of objective medical evidence to support the alleged severity of a

6

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

7

credibility, but cannot “form the sole basis”).

8

citation to specific instances in the objective medical evidence which

9

assertedly do not support Plaintiff’s allegations cannot by itself

10

justify the ALJ’s credibility determination.

Therefore, the ALJ’s

See id.

11
12

Additionally, the ALJ relied on the fact that examination did not

13

show sensory deficits in Plaintiff’s extremities “other than in a non-

14

dermatomal pattern” (A.R. 249), which the ALJ asserted was “suggestive

15

of exaggeration” (A.R. 30).

16

record that such a test result is “suggestive of exaggeration.”

17

Compare A.R. 86 (State agency physician referring to examination but

18

not mentioning “non-dermatomal pattern”).

19

correct in his conclusion, see, e.g., Azizi v. Astrue, 2009 WL

20

1015066, at *6 (C.D. Cal. Apr. 15, 2009) (consultative examiners

21

opining that sensation in a “nondermatomal” distribution suggests

22

“symptom magnification”), the ALJ is not qualified to offer such a

23

conclusion without evidentiary support from a medical expert.

24

may not rely on his or her own lay opinion regarding medical matters.

25

See Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (an ALJ who

26

is not qualified as a medical expert cannot make “his own exploration

27

and assessment as to [the] claimant’s physical condition”); see also

28

Rohan v. Chater, 98 F.3d 966, 970-71 (7th Cir. 1996) (ALJ may not rely

There is no expert medical opinion in the

16

While the ALJ may be

An ALJ

1

on his or her own lay opinion regarding medical matters); Ferguson v.

2

Schweiker, 765 F.2d 31, 37 (3d Cir. 1995) (same); cf. Rudder v.

3

Colvin, 2014 WL 3773565, at *12 (N.D. Ill. July 30, 2014) (“The ALJ

4

may be correct that disabling limitations from multiple sclerosis

5

would result in more frequent treatment or need for medication.

6

However, the ALJ must include evidence to support such a conclusion in

7

his opinion because he is not qualified, on his own, to make such

8

determinations.”) (citations and quotations omitted).

9
10

The ALJ also relied on the purported fact that the medical record

11

showed pain medication refills where one might expect forgoing refills

12

based on Plaintiff’s reports that the pain medication did not always

13

help her condition (A.R. 30).

14

forgo refills could bear on a claimant’s credibility, the record of

15

Plaintiff’s refills and their frequency is insufficiently developed to

16

support the ALJ’s conclusion that Plaintiff materially failed to forgo

17

refills.

Assuming, arguendo, that failure to

See Footnotes 7-9 above and accompanying text.14

18
19
20
21
22
23
24
25
26
27
28

14

Defendant also argues, inter alia, that the ALJ
properly relied on the fact that Plaintiff allegedly engaged in
work activities in 2011 to discount Plaintiff’s credibility
(Defendant’s Motion, p. 7). The Court cannot affirm the
administrative decision on the basis of this argument. See Pinto
v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) (court “cannot
affirm the decision of an agency on a ground that the agency did
not invoke in making its decision”); see also Treichler v.
Commissioner, 775 F.3d 1090, 1102 (9th Cir. 2014) (for meaningful
appellate review, “we require the ALJ to specifically identify
the testimony . . . she or he finds not credible . . . and
explain what evidence undermines the testimony”) (citations and
quotations omitted). While the ALJ generally referred to the
alleged earnings in 2011 as “indicative of the claimant’s ability
to engage in substantial gainful activity” at Step One of the
sequential evaluation process (A.R. 27), the ALJ did not
(continued...)
17

1

Because the circumstances of this case suggest that further

2

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

3

appropriate.

4

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

5

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

6

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

7

Astrue, 495 F.3d at 640 (citing Connett for the proposition that

8

“[w]hen an ALJ’s reasons for rejecting the claimant’s testimony are

9

legally insufficient and it is clear from the record that the ALJ

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

10

would be required to determine the claimant disabled if he had

11

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

12

benefits”) (quotations omitted); see also Brown-Hunter v. Colvin, 798

13

F.3d 749, 757-59 (9th Cir. 2015) (discussing the requirements for the

14

“extreme remedy” of crediting testimony as true and remanding for an

15

immediate award of benefits); Ghanim v. Colvin, 763 F.3d 1154, 1166

16

(9th Cir. 2014) (remanding for further proceedings where the ALJ

17

failed to state sufficient reasons for deeming a claimant’s testimony

18

not credible); Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014)

19

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

20

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

21

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

22

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

23
24
25
26
27
28

14

(...continued)
specifically cite to this evidence as a reason to discount
Plaintiff’s credibility. Nor did the ALJ address Plaintiff’s
claim that the reported earnings must have been a mistake. See
Footnote 4. The ALJ’s discussion at Step One is insufficiently
specific for the Court to conclude that the ALJ discounted
Plaintiff’s testimony on permissible grounds. See Moisa v.
Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); SSR 96-7p.
18

1

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

2

where there are outstanding issues that must be resolved before a

3

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

4

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

5

determination, the proper course is to remand for additional agency

6

investigation or explanation, except in rare circumstances); Treichler

7

v. Commissioner, 775 F.3d at 1101 n.5 (remand for further

8

administrative proceedings is the proper remedy “in all but the rarest

9

cases”).15

10
11

CONCLUSION

12
13

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

14

motions for summary judgment are denied and this matter is remanded

15

for further administrative action consistent with this Opinion.

16
17

LET JUDGMENT BE ENTERED ACCORDINGLY.

18
19

DATED: October 7, 2015.

20
21

____________________________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

22
23
24
25
26
27
28

15

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).
19