Diahanna C Williams v. Carolyn W Colvin

Filing 18

MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Commissioner is reversed, and the matter is remanded for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). (See Order for complete details) (afe)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA-EASTERN DIVISION

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DIAHANNA C. WILLIAMS,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of the
)
Social Security Administration,)
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Defendant.
)
)

Case No. ED CV 15-01678-AS
MEMORANDUM OPINION AND
ORDER OF REMAND

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20

Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY ORDERED

21 that

this

matter

is

remanded

for

further

administrative

action

22 consistent with this Opinion.
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24

PROCEEDINGS

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26

On August 20, 2015, Plaintiff filed a Complaint seeking review of

27 the denial of her application for Disability Insurance Benefits.
28 (Docket Entry No. 1). The parties have consented to proceed before the
undersigned United States Magistrate Judge.

(Docket Entry Nos. 8, 10).

1 On December 28, 2015, Defendant filed an Answer along with the
2 Administrative Record (“AR”).

(Docket Entry Nos. 13-14).

The parties

3 filed a Joint Position Statement (“Joint Stip.”) on March 28, 2016,
4 setting forth their respective positions regarding Plaintiff’s claims.
5 (Docket Entry No. 17).
6
7

The Court has taken this matter under submission without oral

8 argument.

See C.D. Cal. L.R. 7-15; “Order Re: Procedures In Social

9 Security Case,” filed August 25, 2015 (Docket Entry No. 7).
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BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

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Plaintiff, formerly employed as a laboratory technician for a

14 mechanical assembly business (see AR 28, 169), filed an application for
15 Disability Insurance Benefits on March 20, 2012, alleging a disability
16 since June 16, 2011. (See AR 151-54).

On November 25, 2013, the

17 Administrative Law Judge (“ALJ”), Mark Greenberg, heard testimony from
18 Plaintiff and vocational expert Luis Mas. (See AR 27-51). On February
19 20, 2014, the ALJ issued a decision denying Plaintiff’s application.
20 (See AR 11-21). After determining that Plaintiff had severe impairments
21 –- ”rheumatoid arthritis; obesity; and musculoligamentous strain” (AR
22 13)1 --, the ALJ found that Plaintiff had the residual functional
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The ALJ found that Plaintiff’s other impairments –- headaches,
hallux valgus deformities, and depression -- were non-severe. (See AR
13-15). The ALJ further found that Plaintiff did not have medically
determinable carpal tunnel syndrome, fibromyalgia, or diabetes mellitus.
(See AR 15).
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1 capacity (“RFC”)2 to perform light work3 with the limitations of no more
2 than frequent postural activities and no more than frequent reaching,
3 fine manipulation and gross manipulation.

(AR 15-19).

The ALJ then

4 determined that Plaintiff was unable to perform any past relevant work
5 (AR 19), but that jobs existed in significant numbers in the national
6 economy that Plaintiff can perform, and therefore found that Plaintiff
7 was not disabled within the meaning of the Social Security Act. (AR 208 21).
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Plaintiff requested that the Appeals Council review the ALJ’s

11 decision. (AR 5). The request was denied on June 22, 2015. (AR 1-3).
12 The ALJ’s decision then became the final decision of the Commissioner,
13 allowing this Court to review the decision.

See 42 U.S.C. §§ 405(g),

14 1383(c).
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PLAINTIFF’S CONTENTIONS

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Plaintiff alleges that the ALJ erred in failing to properly

19 consider: (1) the opinions of Plaintiff’s treating physicians and one
20 consultative examiner; (2) Plaintiff’s subjective complaints and assess
21 her credibility; and (3) the vocational expert’s testimony. (See Joint
22 Stip. at 3-11, 18-22, 25-28).
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2

A Residual Functional Capacity is what a claimant can still do
See 20
C.F.R. § 404.1545(a)(1).

26 despite existing exertional and nonexertional limitations.
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“Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to 10 pounds.”
20 C.F.R. § 404.1567(b).
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1

DISCUSSION

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3

After consideration of the record as a whole, the Court finds that

4 Plaintiff’s second claim of error warrants a remand for further
5 consideration.
6 Plaintiff’s

Since the Court is remanding the matter based on

second

claim

of

error,

the

Court

will

not

address

7 Plaintiff’s first and third claims of error.
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9 A.

The ALJ Did Not Properly Assess Plaintiff’s Credibility

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Plaintiff asserts that the ALJ failed to provide legitimate reasons

12 for finding Plaintiff not credible. (See Joint Stip. at 18-22).
13 Defendant asserts that the ALJ properly found Plaintiff not fully
14 credible.

(See Joint Stip. at 22-24).

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Plaintiff made the following statements in a “Function Report -

17 Adult” dated May 25, 2012 (see AR 182-89):
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She lives in a house with family.

Her day consists of

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taking care of her personal care, dressing, eating, taking

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pills, taking children to school, coming home, cleaning her

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house, maybe doing laundry, picking up children at school,

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fixing dinner, cleaning the kitchen, watching television, and

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getting ready for bed.

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and her children (feeds and takes to school).

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of a dog (feeds and limited walks), with the help of her

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children.

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far, goes outdoors as much, or makes different kinds of meals.

She takes care of her husband (feeds)
She takes care

As a result of her condition, she no longer walks

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Her sleep is affected because of her condition (she sometimes

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feels too much pain).

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her hair, shaving, self-feeding and using the toilet.

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needs reminders to take a shower, but does not need reminders

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to take medicine.

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daily (meals take her more than 2 hours, and everything needs

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to be easily opened), with some help.

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condition, she cannot open jars or use the knife well.

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cleans and does laundry, both with help, and irons (such

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She has no problem bathing, caring for
She

She prepares some breakfasts and dinners

activities take her the whole day).

As a result of her
She

(See AR 182-85).

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She goes outside daily, and can go out alone. She drives

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a car.

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for approximately 1 to 1 1/2 hours.

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her children off at school on a regular basis.

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186).

She shops for food at the grocery store twice a week
She only goes out to drop
(See AR 185-

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She can pay bills, count change, handle a savings account
and use a checkbook/money orders.

(See AR 185).

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She sews twice a week for approximately 2 hours, if she

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is not in pain.

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to hold (which causes her pain).

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television.

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does not have any problems getting along with family, friends,

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neighbors, or others. (See AR 186-87).

Some of the sewing tools are small and hard
She also reads and watches

She does not spend social time with others.

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She

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Her conditions affects her ability to lift (she can lift

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about 20 pounds), squat (her legs and back start to hurt),

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bend, stand (her legs and back start to hurt), walk (her back

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starts to hurt), sit, kneel (her legs and back start to hurt),

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climb stairs (her legs and back start to hurt), concentrate

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and use her hands (her hands get stiff, lock, and swell). She

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can walk for 5 minutes before she needs to rest; she can

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resume walking after about 2 minutes or until the pain stops.

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She does not finish what she starts.

She follows written

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instructions well, but spoken instructions may have to be

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repeated.

(See AR 187).

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She gets along okay with authority figures, and has never

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been fired or laid off from a job because of problems getting

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along with other people.

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handles changes in her routine okay, but might have to breathe

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deeply for a while.

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that her body will stop working.

She handles stress okay.

She

She fears being in pain all the time and
(See AR 188).

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She

uses

a

brace

(prescribed

in

2003)

and

glasses

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(prescribed in high school).

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feels her hands start to hurt (which happens once a month and

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lasts 1 to 2 weeks).

She uses the brace when she

(See id.).

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Plaintiff testified at the administrative hearing as follows (see

26 AR 28-41):
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She is married and has two daughters, ages 18 and 21.

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She completed one year of college. She worked as a laboratory

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technician until June 2009, when was laid off.

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she was doing mechanical work (using her hands the whole

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time), such as putting parts together, making harnesses,

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building boxes, soldering, using a microscope, and lifting

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power boxes.

At that time,

(See AR 28, 37-39, 41).

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Since June 16, 2011 (her alleged disability onset date),

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her condition has changed –- she has more pain, stiffness,

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swelling, and is unable to stand or sit for a long time.

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cannot work as a laboratory technician because of difficulties

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with standing, sitting, and working with her hands.

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cannot work at a desk job because of the prolonged sitting,

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the prolonged standing, and the use of her hands, even if she

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were allowed to get up and stretch every 30 minutes for 1 to

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2 minutes, and even if she were allowed to alternately sit and

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stand and to lie down for 10 to 15 minutes 3 times a day.

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(See AR 29, 32, 34-35).

She

She

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She can sit comfortably for 30 minutes.

She can stand

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comfortably for 10 to 20 minutes.

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she could alternate between sitting and standing during an 8-

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hour workday, since she has good days and bad days.

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stand for about 30 minutes on a good day and for about 5 to 10

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minutes on a bad day.

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things for too long or uses them too much.

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carry about a gallon of milk, but not with both hands.

She does not know whether

She can

Her hands hurt and swell when she holds

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She can lift and
She

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lies down in a recliner 5 to 6 times a day for about an hour

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(to relieve the pressure on her back and legs).

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swelling in her ankles and knees.

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better the past year; she has headaches about 2 times a month.

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Her problems with depression and concentration/focus have

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stayed the same for the last two years.(See AR 29-30, 32, 35,

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39-40).

She has

Her headaches have gotten

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Her pain is constant and throbbing. She takes medication

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for the pain in her hands.

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sometimes headaches from the medication, but no serious side

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effects.

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She takes Tylenol for her headaches.

She has suffered dizziness and

She has been on and off steroids a number of times.
(See AR 30, 35-37).

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She does not need assistance with bathing or doing her

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hair.

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buttoning or zipping up her clothes if her hands are not

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working.

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laundry (she throws clothes in the washing machine and lets

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her children do the rest).

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like cups (they sometimes fall out of her hands).

She does

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not cook because she cannot stand for a long time.

She does

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not type on a computer.

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only text about 2 to 3 words.

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daughter

house.

Since

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2011/2012, she can no longer walk or do any hobbies.

(See AR

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30-32, 41).

She can dress herself, but she sometimes needs help

On a good day she is able to vacuum and do the

help

her

do

She is not able to grasp objects

She uses a cellular phone, but can

things

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Her husband and younger
around

the

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Her doctors tell her that her condition is going to get

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worse, and that she might become totally deformed in her

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hands.

(See AR 33).

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After summarizing Plaintiff’s testimony at the hearing (see AR 16),

6 the ALJ addressed Plaintiff’s credibility as follows:
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After

careful

consideration

of

the

evidence,

the

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undersigned finds that the claimant’s medically determinable

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impairments could reasonably be expected to cause the alleged

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symptoms; however, the claimant’s statements concerning the

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intensity, persistence and limiting effects of these symptoms

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are not entirely credible for the reasons explained in this

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decision.

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of her symptoms and limitations are greater than expected in

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light of the objective evidence, treatment history, medical

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opinion and the overall record.

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the claimant’s cessation of employment was related to down-

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sizing

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allegedly disabling impairments (Ex 2E pg 2).

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evidence of a significant deterioration in the claimant’s

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medical condition since the apparent lay-off.

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symptoms, episodic in nature, reportedly extend as far back as

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1997 (Ex 1F pg 54).

The claimant’s allegations regarding the severity

by

her

employer,

rather

The evidence reflects that

than

on

account

of

the

There is no

The claimant’s

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The

claimant’s

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activities

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record.

testimony

differ

that

from

and

descriptions

previously

expressed

of

her

in

the

For example, in her function report, the claimant
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described her daily activities to include taking her children

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to and from school, cleaning the house, doing some laundry and

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ironing (Ex 4E pg 1).

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attending to self-care for activities such as dressing.

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prepared meals with help on a daily basis, taking 2 plus hours

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to do so.

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1/2 hours at a time.

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twice a week for a couple of hours if not having pain.

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felt capable of lifting about 20 pounds.

She conveyed having no problems in
She

She shopped for groceries twice a week for 1 to 1
The claimant reportedly enjoyed sewing
She

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11 (AR 16-17).
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A

claimant

initially

must

produce

objective

medical

evidence

14 establishing a medical impairment reasonably likely to be the cause of
15 the subjective symptoms. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.
16 1996); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991).

Once a

17 claimant produces objective medical evidence of an underlying impairment
18 that could reasonably be expected to produce the pain or other symptoms
19 alleged, and there is no evidence of malingering, the ALJ may reject the
20 claimant’s testimony regarding the severity of her pain and symptoms
21 only by articulating specific, clear and convincing reasons for doing
22 so.

Brown-Hunter v. Colvin, 798 F.3d 749, 755 (9th Cir. 2015)(citing

23 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)); see also
24 Smolen v. Chater, supra; Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.
25 1998); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).
26 Because the ALJ does not cite to any evidence in the record of
27 malingering, the “clear and convincing” standard stated above applies.
28
10

1

Here, the ALJ failed to provide clear and convincing reasons for

2 finding that Plaintiff’s testimony about the intensity, persistence and
3 limiting effects of her symptoms was not fully credible.[4]
4
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First, the ALJ failed to “specifically identify ‘what testimony is

6 not credible and what evidence undermines [Plaintiff’s] complaints.’”
7 Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (quoting Lester v.
8 Chater, 81 F.3d 821, 834 (9th Cir. 1995)); see also Smolen v. Chater,
9 supra, 80 F.3d at 1284 (“The ALJ must state specifically what symptom
10 testimony is not credible and what facts in the record lead to that
11 conclusion”).
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Second,

to

the

extent

that

the

ALJ

partially

discredited

14 Plaintiff’s credibility because she stopped working in June 2009 based
15 on

down-sizing

by

her

employer

(and

16 impairments), that reason was improper.

not

based

on

her

medical

Plaintiff did not allege she

17 suffered a disabling condition that prevented her from working in June
18 2009; rather, Plaintiff alleged a disabling condition, beginning on June
19 16, 2011, that prevented her from working (see AR 168). Moreover, there
20 is no indication that Plaintiff gave anybody false information about why
21 she left her employment.

See Bruton v. Massanari, 268 F.3d 824, 828

22 (9th Cir. 2001) (finding that the ALJ’s reliance, in part, on the
23 plaintiff’s false statements at the administrative hearing and to a
24 doctor that “he left his job because he was laid off” [rather than
25 because he was injured] was a sufficient basis for discrediting the
26
4

The Court will not consider reasons for finding Plaintiff not

27 fully credible (see Joint Stip. at 24) that were not given by the ALJ in
the Decision.

See Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir.

28 2001); SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).
11

1 plaintiff’s testimony).

Moreover, the ALJ has not specified how

2 Plaintiff being laid off in June 2009 affected her credibility.
3 Therefore, the fact that Plaintiff was laid off in June 2009 was not
4 relevant to the issue of Plaintiff’s credibility.
5
6

Third, the ALJ’s partial discrediting of Plaintiff’s credibility

7 based on allegedly different statements made by Plaintiff about her
8 ability to perform certain daily activities was improper.5

Although

9 inconsistencies in testimony may be considered in weighing a claimant’s
10 testimony, see Light v. Social Security Admin., 119 F.3d 789, 792 (9th
11 Cir. 1997), here, Plaintiff’s testimony at the November 25, 2013
12 administrative hearing about her ability to perform certain daily
13 activities was not necessarily inconsistent with the statements she made
14 in her May 25, 2012 Function Report about her ability to perform certain
15 daily activities.

The Function Report was prepared one and one-half

16 years prior to the administrative hearing.

At the administrative

17 hearing, Plaintiff testified that her condition had gotten worse since
18 June 16, 2011 (the alleged disability onset date), and that her
19 condition was continuing to worsen (as her doctors had told her). (See
20 AR 28-29, 33). Moreover, since Plaintiff stated in her Function Report
21 that she was able to perform certain daily activities (i.e., feeding the
22 dog, preparing meals, laundry, cleaning) or to engage in hobbies
23 (sewing) only if she had help from her children or if she was not in
24 pain (see AR 183-84, 186)(emphasis added), Plaintiff’s statements in her
25 Function Report were not necessarily inconsistent with her testimony at
26 the administrative hearing. In addition, to the extent that the ALJ may
27
5

28 reason.

The Court notes that Defendant did not even address that
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1 have partially discredited Plaintiff’s testimony based on her ability to
2 perform certain daily activities, such as taking her children to and
3 from school, cleaning the house, doing some laundry, ironing, dressing,
4 preparing meals, shopping for groceries, and sewing, that reason was
5 not clear and convincing.

See Vertigan v. Halter, 260 F.3d 1044, 1050

6 (9th Cir. 2001) (“[T]he mere fact that a plaintiff has carried on
7 certain daily activities . . . does not in any way detract from her
8 credibility as to her overall disability.

One does not need to be

9 ‘utterly incapacitated’ in order to be disabled.”); Reddick v. Chater,
10 supra (“Only if the level of activity were inconsistent with the
11 Claimant’s claimed limitations would these activities have any bearing
12 on Claimant’s credibility.”).
13
14

Fourth, although the ALJ also found that there was a lack of

15 objective medical evidence supporting Plaintiff’s testimony concerning
16 her symptoms and limitations, the lack of supporting objective medical
17 evidence cannot, by itself, support an adverse credibility finding. See
18 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Tidwell v.
19 Apfel, 161 F.3d 599, 602 (9th Cir. 1998).
20
21 B.

Remand Is Warranted

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23

The decision whether to remand for further proceedings or order an

24 immediate award of benefits is within the district court’s discretion.
25 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000).

Where no

26 useful purpose would be served by further administrative proceedings, or
27 where the record has been fully developed, it is appropriate to exercise
28 this discretion to direct an immediate award of benefits.
13

Id. at 1179

1 (“[T]he decision of whether to remand for further proceedings turns upon
2 the likely utility of such proceedings.”). However, where, as here, the
3 circumstances of the case suggest that further administrative review
4 could remedy the Commissioner’s errors, remand is appropriate.

McLeod

5 v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); Harman v. Apfel, supra,
6 211 F.3d at 1179-81.
7
8

Since the ALJ failed to properly assess Plaintiff’s credibility,

9 remand is appropriate.

Because outstanding issues must be resolved

10 before a determination of disability can be made, and “when the record
11 as a whole creates serious doubt as to whether the [Plaintiff] is, in
12 fact, disabled within the meaning of the Social Security Act,” further
13 administrative proceedings would serve a useful purpose and remedy
14 defects.

Burrell

v.

Colvin,

775

F.3d

1133,

1141

(9th

Cir.

15 2014)(citations omitted).6
16 //
17 //
18 //
19
20
21
6

With

the

exception

of

the

denial

of Plaintiff’s claim

22 regarding the ALJ’s consideration of anemia evidence, the Court has not

reached any other issue raised by Plaintiff except insofar as to

23 determine that reversal with a directive for the immediate payment of
benefits would not be appropriate at this time.

“[E]valuation of the

24 record as a whole creates serious doubt that Plaintiff is in fact
disabled.”

See

Garrison

v.

Colvin,

759

F.3d

995,

1021

(2014).

25 Accordingly, the Court declines to rule on Plaintiff’s claims regarding

the ALJ’s failure to properly consider the opinions of Plaintiff’s

26 treating physicians and one consultative examiner (see Joint Stip. at
18-22) and the ALJ’s failure to properly consider the vocational
Because this matter is
being remanded for further consideration, these issues should also be
considered on remand.

27 expert’s testimony (see Joint Stip. at 25-28).
28

14

1

ORDER

2
3

For the foregoing reasons, the decision of the Commissioner is

4 reversed, and the matter is remanded for further proceedings pursuant to
5 Sentence 4 of 42 U.S.C. § 405(g).
6
7

LET JUDGMENT BE ENTERED ACCORDINGLY.

8
9 DATED: July 28, 2016
10
11

/s/
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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