Josefina Avila Pacheco v. Carolyn W. Colvin

Filing 18

MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Alka Sagar. The decision of the Administrative Law Judge is VACATED, and the matter is REMANDED, without benefits, 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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JOSEFINA AVILA PACHECO,

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Plaintiff,
v.

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

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) No. EDCV 15-2501 AS
)
) MEMORANDUM OPINION AND
)
) ORDER OF REMAND
)
)
)
)
)
)
)

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

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ORDERED

that

this

matter

is

remanded

21

for

further

administrative

action consistent with this Opinion.

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PROCEEDINGS

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24
25

On

January

17,

2012,

Plaintiff

Josefina

Avila

Pacheco

26

(“Plaintiff”) applied for disability insurance benefits alleging a

27

disabling

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December 3, 2013, Administrative Law Judge (“ALJ”) Mark B. Greenberg

condition

beginning

August

1

25,

2010.

(AR

192).

On

1

examined records and heard testimony from Plaintiff and vocational

2

expert (“V.E.”) Carlen Stock.

3

ALJ denied Plaintiff benefits in a written decision.

(AR 15-28).

4

The Appeals Council denied review of the ALJ’s decision.

(AR 1-3).

(AR 35-71).

On August 7, 2014, the

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6

On December 9, 2015, Plaintiff filed a Complaint pursuant to

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42 U.S.C. § 405(g) alleging that the Social Security Administration

8

erred in denying benefits.

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Defendant filed an Answer to the Complaint, (Docket Entry No. 13),

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and the Certified Administrative Record (“AR”), (Docket Entry No.

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14).

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Magistrate Judge.

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parties filed a Joint Stipulation (“Joint Stip.”) setting forth their

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respective positions on Plaintiff’s claims.

(Docket Entry No. 1).

On April 12, 2016,

The parties have consented to proceed before a United States
(Docket Entry Nos. 8, 9).

On July 28, 2016, the

(Docket Entry No. 17).

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SUMMARY OF ALJ’S DECISION

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The ALJ applied the five-step process in evaluating Plaintiff’s

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19

case.

(AR 16-17).

At step one, the ALJ determined that Plaintiff

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had not engaged in substantial gainful activity after the alleged

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onset date.

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severe

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degenerative

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upper extremity, chronic pain, impingement syndrome, cubital tunnel

25

syndrome, carpal tunnel syndrome, and depression.

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three, the ALJ found that Plaintiff’s impairments did not meet or

27

equal a listing found in 20 C.F.R. Part 404, Subpart P, Appendix 1.

28

(AR 17-18).

(AR 17).

impairments
joint

At step two, the ALJ found that Plaintiff’s

included
disease,

obesity,
repetitive

2

degenerative
use

injuries

disc
of

disease,
the

(AR 17).

right

At step

1

Before proceeding to step four, the ALJ found that Plaintiff had

2

the residual functional capacity (“RFC”) to perform light work with

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the following further limitations: “with respect to [Plaintiff’s]

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sitting for six hours out of an eight-hour workday she would require

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hourly breaks of five minutes to change position, and during that

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five minutes she could either stand at the workstation or walk around

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the workstation close enough to remain on task.

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push and pull with the dominant right upper extremity.

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occasionally climb ramps and stairs, stoop, crouch and crawl.

She can frequently
She can
She

10

can frequently balance and kneel.

She is precluded from climbing

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ladders, ropes, and scaffolds.

12

hazards.

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upper

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handling, fingering and feeling with the right upper extremity.

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is limited to nonpublic work that is unskilled and involves simple

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and repetitive tasks.”

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stated that Plaintiff’s subjective complaints were “less than fully

18

credible” and inconsistent with objective medical evidence.

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24, 26).

She is precluded from exposure to

She is precluded from overhead reaching with the right

extremity

but

can

otherwise

(AR 19).

perform

frequent

reaching,
She

In making his RFC finding, the ALJ

(AR 21,

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21

At steps four and five, the ALJ determined that Plaintiff was

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unable to perform past relevant work but that she could seek work as

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a packager, inspector, or assembler, which were all jobs existing in

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significant

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Accordingly,

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within the meaning of the Social Security Act.

numbers
the

ALJ

in

the

national

determined

that

27
28
3

economy.
Plaintiff

(See
was

(AR 28).

AR
not

27-28).
disabled

1

STANDARD OF REVIEW

2
3

This court reviews the Administration’s decision to determine if

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the decision is free of legal error and supported by substantial

5

evidence.

6

1157, 1161 (9th Cir. 2012).

7

mere scintilla, but less than a preponderance.

8

759 F.3d 995, 1009 (9th Cir. 2014).

9

evidence supports a finding, “a court must consider the record as a

See Brewes v. Commissioner of Soc. Sec. Admin., 682 F.3d

weighing

both

“Substantial evidence” is more than a

To determine whether substantial

10

whole,

11

detracts

12

Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (internal quotation

13

omitted).

14

affirming

15

substitute [its] judgment for that of the ALJ.”

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Admin., 466 F.3d 880, 882 (9th Cir. 2006).

from

the

As
or

a

evidence

Garrison v. Colvin,

that

supports

[Commissioner’s]

result,

reversing

“[i]f

the

the

ALJ’s

and

evidence

conclusion.”

evidence

can

conclusion,

[a

that

Aukland

support
court]

v.

either
may

not

Robbins v. Soc. Sec.

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PLAINTIFF’S CONTENTIONS

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Plaintiff

raises

two

grounds

for

relief.

First,

Plaintiff

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claims

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subjective complaints.

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claims that the ALJ erred at step five by selecting alternative

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occupations that Plaintiff is not able to perform and relying on an

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inaccurate

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alternative occupations available in the national economy.

27

13-17).

that

the

ALJ

improperly

calculation

assessed

the

(Joint Stip. at 3-7).

of

the

numbers

28
4

of

credibility

of

her

Second, Plaintiff

positions

in

these
(Id. at

1

DISCUSSION

2
3

After reviewing the record, the Court finds that Plaintiff’s

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first claim warrants remand for further consideration.

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The Court

declines to address Plaintiff’s other claim.

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7

A.

The ALJ Erred In Rejecting Plaintiff’s Subjective Complaints

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A claimant initially must produce objective medical evidence

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establishing a medical impairment reasonably likely to be the cause

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of his subjective symptoms.

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(9th Cir. 1996); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir.

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1991). Once a claimant produces objective medical evidence of an

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underlying impairment that could reasonably be expected to produce

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pain

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malingering, the ALJ may reject the claimant’s testimony regarding

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the severity of his pain and symptoms only by articulating specific,

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clear and convincing reasons for doing so.

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806 F.3d 487, 492-93 (9th Cir. 2015) (citing Lingenfelter v. Astrue,

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504 F.3d 1028, 1036 (9th Cir. 2007)).

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no

22

standard applies.

or

other

evidence

of

symptoms

Smolen v. Chater, 80 F.3d 1273, 1281

alleged,

malingering,

the

and

there

is

no

evidence

of

Brown-Hunter v. Colvin,

In this case, because there is

“clear

and

convincing

reasons”

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24

During the hearing, Plaintiff testified that she had last worked

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in August 2010.

(AR 42).

Plaintiff noted that she had surgery on

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her right shoulder and right elbow and that doctors had recommended

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surgery on her right hand.

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did not want to undergo another operation because she did not believe

(AR 44-45).

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Plaintiff stated that she

1

that previous surgeries had helped her.

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noted that she had epidural injections in her back and neck, but

3

those had not helped either.

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was unable to use her right hand to grip, pick up small things or

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button a shirt “quickly” or “for a long time,” or lift a gallon of

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milk.

(AR 45-46).

7

tried

physical

8

acupuncture.

(AR 45).

(AR 45).

Plaintiff also

Plaintiff testified that she

Plaintiff further testified that she had also

therapy,

unspecified

“pain

management,”

and

(AR 46-47).

9

Plaintiff stated that she could walk for about an hour at a

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11

time,

although

she

sometimes

fell

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concentration problems.

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be unable to work a job where she would have to sit or stand for a

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long time, and she sometimes needed to lie down for thirty to sixty

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minutes due to her pain.

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would be unable to perform full time work that involved moving her

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right hand repetitively.

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that, with assistance, she could shop at a nearby store and perform

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household chores.

(AR 47).

down,

and

she

had

memory

and

Plaintiff testified that she would

(AR 48).

Plaintiff also stated that she

(See AR 48).

Plaintiff further testified

(AR 49).

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Several portions of the administrative record are also relevant

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22

to

Plaintiff’s

23

testimony.

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Plaintiff reported that “her last injection” in January 2011 had been

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“of

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shoulder, neck, and back pain that caused difficulty sleeping.

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321).

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reported that pain in her right shoulder had decreased in the week

some

claim

During

help,”

During

a

that
a

ALJ

February

although

March

the

she

2011

erroneously
2011

was

orthopedic

still

postoperative

6

rejected

her

pain

re-evaluation,

experiencing

evaluation,

“severe”
(AR

Plaintiff

1

following her surgery on that shoulder.

2

2011 postoperative evaluation, Plaintiff again reported “improving

3

right shoulder pain, status-post arthroscopic repair of her right

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shoulder as of 3/1/11.”

5

cervical and lumbar spine pain.

(AR 330).

(AR 327).

During an April

Plaintiff still reported chronic

(AR 330).

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7

In November 2011 and April 2012, Plaintiff underwent physical

8

examinations, and her grip strength in her right hand improved during

9

this

period.

(Compare

AR

339

(testing

at

“5,

5,

5

pounds”

in

10

November 2011) with AR 695 (testing at “20, 20, 15 pounds” in April

11

2012)).

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In an April 2012 Adult Function Report, Plaintiff reported that

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14

she

was

unable

to

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difficulty bathing and grooming herself due to pain.

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Plaintiff

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housework, and preparing meals.

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she left the house once or twice a day to pick up her son from school

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and

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Plaintiff reported that she could walk for up to thirty minutes

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before needing to rest for fifteen minutes and that her ailments also

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affected

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kneel, climb stairs, concentrate, understand, follow instructions,

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and use her hands.

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made substantially similar allegations.

stated

visited

her

with

sleep

that

because

family

friends

ability

to

(AR 225).

her

members

once

lift,

of

helped

(AR 222).

or

twice

stand,

pain

and

her

that

with

she

had

(AR 221).
grooming,

Plaintiff claimed that

a

squat,

week.

bend,

(AR

223-24).

stand,

reach,

A December 2012 Adult Function Report
(AR 258-66).

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27

In an October 2012 Progress Note, Dr. Joseph Fujun Liu observed

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that Plaintiff reported “improved mood and sleeping” but also “a lot
7

1

of anxiety” and that her mood during the examination was “stable and

2

cooperative.”

3

Buspar dosage and otherwise did not modify Plaintiff’s course of

4

treatment.

(AR 610).

Dr. Liu recommended increasing Plaintiff’s

(AR 611).

5

In

6

a

November

Progress

Plaintiff’s

mood

Report,

had

Dr.

improved

Nelson

8

psychotropic medication, although she was anxious, irritable, and

9

suffered from heart palpitations.

no changes to Plaintiff’s treatment regimen.

the

Flores

observed

(AR 423).

with

J.

7

10

that

2012

use

of

Dr. Flores recommended
(AR 424).

11
12

In a second November 2012 Progress Note, Dr. Liu observed that

13

Plaintiff reported improved sleep and mood due to her medication

14

regimen but still reported anxiety.

15

Plaintiff’s

16

increasing her Buspar dosage.

mood

was

“stable

(AR 420).

[and]

Dr. Liu reported that

cooperative”

and

recommended

(AR 420-21).

17

In

18

a

December

2012

Progress

Note,

Dr.

Liu

observed

that

19

Plaintiff reported “a lot of crying” and “depressed mood,” although

20

her mood during the examination was stable and cooperative.

(AR

21

613).

and

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Remeron dosages but otherwise did not modify Plaintiff’s course of

23

treatment.

Dr.

Liu

recommended

increasing

Plaintiff’s

Wellbutrin

(AR 613-14).

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25

In a January 2013 Progress Note, Dr. Liu reported that Plaintiff

26

felt “better” following the increase of her Wellbutrin dosage and was

27

“cooperative and engaged” during the examination.

28

did not modify Plaintiff’s treatment regimen.
8

(AR 619).

(AR 620).

Dr. Liu

1

The ALJ summarized Plaintiff’s testimony and the aforementioned

2

evidence, determining that:

3

her grip and motor strength following surgery on her right upper

4

extremity;

5

degenerative

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(3) Plaintiff had not been treated for physical impairments after

7

2013; (4) Plaintiff’s treatment for her depression had generally been

8

successful, requiring “very little treatment” after February 2013,

9

and her mood disorder was “stable” since October 2012; (5) Plaintiff

10

had never been psychiatrically hospitalized; and (6) Plaintiff had

11

received “routine, conservative, and non-emergency treatment” since

12

the

13

additional

14

medical evidence of record suggests that [Plaintiff’s] impairments

15

are not as limiting as alleged by [Plaintiff].”

16

id. at 24 (“The [ALJ] finds that objective clinical findings and the

17

treatment

18

disabling symptoms and limitations; thus, [Plaintiff’s] allegations

19

are

20

concluded that his RFC assessment was “supported by the evidence as a

21

whole” and that Plaintiff’s complaints were “less than fully credible

22

and the objective medical evidence [did] not support the alleged

23

severity of symptoms.”

(2)

alleged

not

no

disc

onset
medical

record

fully

doctor

(1) Plaintiff had “some improvement” in

had

disease

date.

of

the

(AR

evidence

do

recommended

not

and

The

assessments,

support

credible.”)).

lumbar

19-21).

and

surgery

ALJ

these

Plaintiff’s

cervical

then

opining

spine;

summarized

that

“[t]he

(AR 21-26; see also

[Plaintiff’s]

Following

for

allegations

summaries,

the

of

ALJ

(AR 26).

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25

Remand

is

warranted.

Preliminarily,

the

ALJ’s

summary

of

26

Plaintiff’s testimony, summary of the medical evidence, assignment of

27

weight to medical assessments, and ruling on Plaintiff’s credibility

28

are intermingled over several pages.
9

(AR 19-26).

Although the ALJ

1

intersperses

2

relevant to assessing Plaintiff’s credibility, e.g., her treatment

3

regimen and improvement with treatment, the ALJ’s clearest findings

4

regarding

5

inconsistent

6

findings,”

7

objective medical support cannot be the sole basis for finding a

8

claimant not credible, and the ALJ’s other reasons are not presented

9

with the degree of specificity required by case law.

references

Plaintiff’s
with

and

to

facts

credibility

the

or

conclusions

were

evidence

“treatment

the

medical

that

record.”

of

that

her

complaints

record,

(AR

might

21,

the
24).

be

were

“clinical
Lack

of

See Burrell v.

10

Colvin, 775 F.3d 1133, 1138-39 (9th Cir. 2014); Brown-Hunter, 806

11

F.3d at 494 (“Because the ALJ failed to identify the testimony she

12

found not credible, she did not link that testimony to the particular

13

parts

14

This was legal error.”); see also Burch v. Barnhart, 400 F.3d 676,

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681 (9th Cir. 2005) (“lack of medical evidence” can be “a factor” in

16

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

of

the

record

supporting

her

non-credibility

determination.

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18

Moreover, to the extent that the Court can identify the ALJ’s

19

other reasons for discrediting Plaintiff’s testimony, these reasons

20

are suspect.

21

and Adult Function Report and concluded that her “daily activities

22

. . . do not comport with additional limitations beyond those found

23

herein.”

24

administrative

25

daily activities are consistent with the ability to perform full time

26

work or inconsistent with her excess pain testimony.

27

Halter,

28

scintilla” of evidence supporting ALJ’s adverse credibility finding

For example, the ALJ referenced Plaintiff’s testimony

(AR 20).

260

Having reviewed Plaintiff’s testimony and the

record,

F.3d

the

1044,

Court

1050

is

(9th

10

unconvinced

Cir.

2001)

that

Plaintiff’s

See Vertigan v.

(finding

“only

a

1

where claimant was able to go grocery shopping with assistance, walk

2

approximately an hour in the mall, get together with friends, play

3

cards, swim, watch television, read, undergo physical therapy, and

4

exercise at home); see also Reddick v. Chater, 157 F.3d 715, 722-23

5

(9th

6

credibility “[o]nly if the level of activity [is] inconsistent with

7

[the

8

accounting for the context of materials or all parts of the testimony

9

and reports,” resulting in paraphrasing of record material that was

10

Cir.

1998)

(activities

claimant’s]

claimed

of

daily

limitations”;

living

ALJ

affect

erred

by

a

claimant’s

“not

fully

“not entirely accurate regarding the content or tone of the record”).

11
12

Moreover, according to the ALJ, “[t]he treatment records reveal

13

[that Plaintiff] received routine, conservative, and non-emergency

14

treatment since the alleged onset date,” (AR 21), and the ALJ also

15

noted

16

degenerative

17

psychiatrically hospitalized.

18

hospitalization and surgery for several conditions after the alleged

19

onset date, and the Ninth Circuit has expressed doubt as to whether a

20

treatment regimen including epidural steroid injections qualifies as

21

“conservative.”

22

45, 318, 321 (Plaintiff received epidural steroid injections)).

that

no

physician

disc

had

disease

recommended

and

that

(AR 20).

surgery

Plaintiff

for
had

Plaintiff’s
never

been

However, Plaintiff underwent

See Garrison, 759 F.3d at 1015 n.20; (see also AR

23
24

Relatedly, to the extent that the ALJ discredited Plaintiff’s

25

testimony

because

she

did

not

seek

surgery

or

other

specific

26

treatments, the ALJ was required, and failed, to consider Plaintiff’s

27

explanation for not doing so.

28

claimant provides evidence of a good reason for not taking medication

See Smolen, 80 F.3d at 1284 (“Where a

11

1

for her symptoms, her symptom testimony cannot be rejected for not

2

doing so.”); Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012)

3

(unexplained or inadequately explained failure to seek treatment or

4

follow prescribed course of treatment can support adverse credibility

5

finding).

6

undergo

7

surgeries had provided meaningful pain relief, (AR 45), which is

8

consistent

9

pain one month or less after surgery in March 2011.

Here, Plaintiff reported in 2013 that she was reluctant to
further

with

surgery

because

Plaintiff’s

she

reports

did

of

not

believe

“decreased”

or

her

prior

“improving”

(AR 327, 330).

10

In any event, even a brief pain-free period or temporary improvement

11

is consistent with a claim of disability.

12

F.3d 821, 833 (9th Cir. 1995) (“Occasional symptom-free periods – and

13

even

14

disability.”).

the

sporadic

ability

to

work

–

See Lester v. Chater, 81

are

not

inconsistent

with

15

In light of the foregoing, the Court concludes that the ALJ

16
17

provided

insufficient

support

18

for

his

decision

to

discount

Plaintiff’s pain testimony.

19
20

B.

The Court Cannot Conclude That The ALJ’s Error Was Harmless

21
22

“[H]armless error principles apply in the Social Security . . .

23

context.”

Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)

24

(citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th

25

Cir. 2006)).

26

‘inconsequential to the ultimate nondisability determination.’”

27

(citing Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162

28

(9th Cir. 2008)).

Generally, “an ALJ’s error is harmless where it is

12

Id.

1

The Court cannot conclude that the ALJ’s errors were harmless.

2

The limiting effects of Plaintiff’s pain are directly relevant to

3

assessing

4

finding contributing to the final . . . decision about disability.”

5

See

6

(quoting SSR 96—5p).

7

determination that there was work that she could perform despite her

8

limitations.

9

the ALJ’s errors were “inconsequential to the ultimate nondisability

her

McCawley

RFC.

v.

A

claimant’s

Astrue,

423

F.

RFC

“may

App’x

687,

be

the

689

most

(9th

critical

Cir.

2011)

Here, Plaintiff’s RFC was central to the ALJ’s

(AR 27-28).

Because the Court cannot determine that

10

determination,” the errors cannot be deemed harmless.

11

See Carmickle,

533 F.3d at 1162.

12
13

C.

Remand Is Warranted

14

The decision whether to remand or order an immediate award of

15
16

benefits is within the district court’s discretion.

17

211 F.3d 1172, 1175-78 (9th Cir. 2000).

18

would be served by further administrative proceedings, or where the

19

record is fully developed, it is appropriate to direct an immediate

20

award of benefits.

21

for

22

proceedings.”).

23

that further administrative review could remedy the Commissioner’s

24

errors, remand is appropriate.

25

(9th Cir. 2011); Harman, 211 F.3d at 1179-81.

26

further

Harman v. Apfel,

Where no useful purpose

Id. at 1179 (“[T]he decision of whether to remand

proceedings

turns

upon

the

likely

utility

of

such

However, where the circumstances of the case suggest

McLeod v. Astrue, 640 F.3d 881, 888

Here, the Court remands because the ALJ provided insufficient

27

support for his decision to discount Plaintiff’s pain testimony.

28

record does not affirmatively establish that the ALJ could not have
13

The

1

found Plaintiff not fully credible for other reasons, nor does it

2

establish

3

Plaintiff disabled if these deficiencies were remedied.

4

therefore appropriate.

that

the

ALJ

would

necessarily

be

required

to

find

Remand is

5
6

The Court has not reached issues not discussed supra except to

7

determine that reversal with a directive for the immediate payment of

8

benefits would be inappropriate at this time.

9

issues addressed in this order, the ALJ should consider on remand any

10

In addition to the

other issues raised by Plaintiff, if necessary.

11

CONCLUSION

12
13
14

For the foregoing reasons, the decision of the Administrative

15

Law Judge is VACATED, and the matter is REMANDED, without benefits,

16

for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g).

17
18

LET JUDGMENT BE ENTERED ACCORDINGLY.

19
20
21
22

Dated: February 28, 2017.
_____________/s/______________
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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