Timothy Gibson v. Commissioner for Social Security

Filing 18

MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi. Based on the foregoing, IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision. (es)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 TIMOTHY S. GIBSON, Plaintiff, v. NANCY A. BERRYHILL1, Acting Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 16-1293 JCG MEMORANDUM OPINION AND ORDER 18 Timothy S. Gibson (“Plaintiff”) challenges the Social Security Commissioner’s 19 20 decision denying his application for disability benefits. Plaintiff contends that the 21 Administrative Law Judge (“ALJ”) erred by improperly assessing his credibility. (See 22 Joint Stip. at 4, 11-17, 20.) The Court agrees with Plaintiff for the reasons discussed 23 below. 24 A. 25 As a rule, absent a finding of malingering, an ALJ can reject a claimant’s 26 The ALJ Improperly Assessed Plaintiff’s Credibility subjective complaints by “expressing clear and convincing reasons for doing so” 27 1 28 The Court DIRECTS the Clerk of Court to update the case caption to reflect Nancy A. Berryhill as the proper Defendant. See Fed. R. Civ. P. 25(d). 1 1 supported by substantial evidence. Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 2 1040 (9th Cir. 2003); Brown-Hunter v. Colvin, 806 F.3d 487, 489, 492-93 (9th Cir. 3 2015). Here, first, the ALJ issued a general finding that failed to (1) identify what 4 5 testimony he found not credible, and (2) tie that testimony to the evidence he believed 6 undermined Plaintiff’s complaints.2 (See AR at 26-28); Brown-Hunter, 806 F.3d at 7 493 (“General findings are insufficient; rather, the ALJ must identify what testimony is 8 not credible and what evidence undermines the claimant’s complaints.” (citation and 9 internal quotation marks omitted)). 10 Second, the ALJ’s statement that Plaintiff’s credibility was only partially 11 credible “for the reasons discussed herein,” followed by a summary of the testimony, 12 function reports, and medical evidence, is insufficient. (AR at 26); see Brown-Hunter, 13 806 F.3d at 494 (credibility determination insufficient when ALJ “simply state[s] [his] 14 non-credibility conclusion and then summarize[s] the medical evidence”). 15 Third, the ALJ erred by making a boilerplate finding that Plaintiff’s symptom 16 statements were “not credible to the extent those statements are inconsistent with the 17 residual functional capacity assessment herein.” (AR at 28); Laborin v. Berryhill, 867 18 F.3d 1151, 1152-54 (9th Cir. 2017) (ALJ errs by issuing boilerplate statement 19 discrediting testimony to the extent it was “inconsistent with the above residual 20 functional capacity assessment.”). Thus, the ALJ improperly assessed Plaintiff’s credibility3. 21 22 2 23 24 25 26 27 28 To the extent it can be gleaned that the ALJ discounted Plaintiff’s mental health complaints due to a lack of treatment records (see Administrative Record (“AR”) at 27), or his physical complaints due to a similar lack of objective evidence, that reason cannot, by itself, support the credibility determination. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (lack of objective medical evidence supporting claimant’s symptoms and limitations cannot, by itself, support a credibility finding). 3 Contrary to the Commissioner’s assertion, the ALJ’s reference to Plaintiff’s work history and daily activities were not reasons provided by the ALJ to support the credibility determination. (Joint Stip. at 18-19.) The Court agrees with Plaintiff that the ALJ simply mentioned both in his summary of Plaintiff’s testimony. (Id. at 20; AR at 26-27); Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2 1 B. Remand is Warranted 2 With error established, this Court has discretion to remand or reverse and award 3 benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Where no useful 4 purpose would be served by further proceedings, or where the record has been fully 5 developed, it is appropriate to direct an immediate award of benefits. Benecke v. 6 Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004). But where outstanding issues must be 7 resolved before a determination can be made, or where the record does not make clear 8 that proper evaluation of the evidence would require a disability finding, remand is 9 appropriate. Id. at 594. 10 Here, in light of the error, the ALJ shall reconsider Plaintiff’s subjective 11 complaints and the resulting functional limitations, and either credit his testimony or 12 provide clear and convincing reasons, supported by substantial evidence, for rejecting 13 it. See Benton, 331 F.3d at 1040. Further, if the ALJ rejects Plaintiff’s allegations, he 14 must specifically identify what testimony is not credible, and what evidence 15 undermines his complaints. See Brown-Hunter, 806 F.3d at 493. 16 Finally, the Court is mindful that “the touchstone for an award of benefits is the 17 existence of a disability, not the agency’s legal error.” Id. at 495. Because it is 18 unclear, on this record, whether Plaintiff is in fact disabled, remand here is on an “open 19 record.” Id.; Burrell v. Colvin, 775 F.3d 1133, 1141-42 (9th Cir. 2014). Given the 20 necessity of remand, the parties may freely take up all issues raised in the Joint 21 Stipulation, including Plaintiff’s contention that the AR was incomplete (Joint Stip. at 22 4-7, 10-11), and any other issues relevant to resolving Plaintiff’s claim of disability, 23 before the ALJ. Either party may address those points in the remanded, open 24 proceeding. 25 26 27 28 2015) (reviewing court may only affirm agency action on grounds invoked by agency); Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (ALJ must make “specific findings related to [the daily] activities and their transferability to conclude that a claimant’s daily activities warrant an adverse credibility determination”). 3

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