Travis Ricardo v. Carolyn W. Colvin

Filing 27

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)

Download PDF
1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-EASTERN DIVISION 11 12 13 14 15 16 17 18 TRAVIS RICARDO, ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL,1 ) Acting Commissioner of the ) Social Security Administration,) ) Defendant. ) ) Case No. EDCV 16-01654-AS MEMORANDUM OPINION AND ORDER OF REMAND 19 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. 23 24 25 26 27 28 1 Nancy A. Berryhill is now the Acting Commissioner of the Social Security Administration and is substituted in for Acting Commissioner Caroyln W. Colvin in this case. See 42 U.S.C. § 205(g). 1 PROCEEDINGS 2 3 On July 29, 2016, Plaintiff filed a Complaint seeking review of the 4 denial of her application for Supplemental Security Incom. 5 Entry No. 1). (Docket The parties have consented to proceed before the 6 undersigned United States Magistrate Judge. (Docket Entry Nos. 17, 20). 7 On January 3, 2017, Defendant filed an Answer along with the 8 Administrative Record (“AR”). (Docket Entry Nos. 17, 20). The parties 9 filed a Joint Stipulation (“Joint Stip.”) on May 2, 2017, setting forth 10 their respective positions regarding Plaintiff’s claims. (Docket Entry 11 No. 26). 12 13 The Court has taken this matter under submission without oral 14 argument. See C.D. Cal. L.R. 7-15; “Order Re: Procedures In Social 15 Security Appeal,” filed August 19, 2016 (Docket Entry No. 15). 16 17 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 18 19 On October 17, 2012, Plaintiff filed an application for 20 Supplemental Security Income, alleging a disability since July 27, 2012. 21 (See AR 130-38). On September 9, 2014, the Administrative Law Judge 22 (“ALJ”), John Kays, heard testimony from Plaintiff and vocational expert 23 Ronald Hatakeyama. (See AR 32-46). On October 24, 2012, the ALJ issued 24 a decision denying Plaintiff’s application. (See AR 20-27). After 25 determining that Plaintiff had a severe impairment –- bursitis of the 26 bilateral hips status post intramedullary rodding of bilateral femur 27 28 2 1 fractures (AR 22)2 –- but did not have an impairment or combination of 2 impairments that met or medically equaled the severity of one of the 3 Listed Impairments (AR 22), the ALJ found that Plaintiff had the 4 residual functional capacity (“RFC”)3 to perform light work4 with the 5 following limitations: standing or walking for no more than 4 hours out 6 of an 8-hour workday; sitting for no more than 6 hours out of an 8-hour 7 workday; no jobs requiring work around unprotected heights or on 8 ladders, ropes and scaffolds; and limited to jobs requiring only the 9 performance of simple, routine, repetitive tasks. (AR 22-25). The ALJ 10 then determined that Plaintiff did not have any past relevant work (AR 11 25), but that jobs existed in significant numbers in the national 12 economy that Plaintiff can perform, and therefore found that Plaintiff 13 was not disabled within the meaning of the Social Security Act. (AR 2514 27). 15 16 Plaintiff requested that the Appeals Council review the ALJ’s 17 decision. (AR 14-16, 220-21). The request was denied on June 9, 2016. 18 (AR 1-5). The ALJ’s decision then became the final decision of the 19 Commissioner, allowing this Court to review the decision. See 42 U.S.C. 20 §§ 405(g), 1383(c). 21 22 23 24 25 2 The ALJ determined that Plaintiff’s left ear hearing loss and a dislocated shoulder were nonsevere impairments. (AR 22). 3 A Residual Functional Capacity is what a claimant can still do See 20 C.F.R. § 416.945(a)(1). 26 despite existing exertional and nonexertional limitations. 27 28 4 “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. § 416.967(b). 3 1 PLAINTIFF’S CONTENTIONS 2 3 Plaintiff alleges that the ALJ erred in failing to: (1) evaluate 4 the opinion of Plaintiff’s treating physician, Dr. Huang; and (2) 5 properly reject Plaintiff’s testimony regarding his limitations. (See 6 Joint Stip. at 3-5, 15-20, 29-30). 7 8 DISCUSSION 9 10 After consideration of the record as a whole, the Court finds that 11 Plaintiff’s second claim of error warrants a remand for further 12 consideration. 13 Plaintiff’s Since the Court is remanding the matter based on second claim of error, the Court will not address 14 Plaintiff’s first claim of error. 15 16 A. The ALJ Did Not Properly Assess Plaintiff’s Credibility 17 18 Plaintiff asserts that the ALJ failed to properly find that 19 Plaintiff’s testimony about his pain symptoms and functional limitations 20 was not fully credible. 21 asserts that the ALJ (See Joint Stip. at 16-20, 29-30). properly evaluated 22 complaints and found him not fully credible. Plaintiff’s Defendant subjective (See Joint Stip. at 20- 23 29). 24 25 Plaintiff made the following statements in a “Function Report - 26 Adult” dated March 11, 2013 (see AR 184-92)5: 27 28 5 The Function Report was completed by Plaintiff’s grandmother. 4 1 He lives with his grandmother and grandfather in a house. 2 His impairments limit his ability to work because he sometimes 3 gets “meixed up” [sic], has a hard time walking, has pain, and 4 has a problem seeing out of his left eye. For his impairments 5 he takes Percocet and Narco, both of which cause side effects 6 of upset stomach and moodiness. (See AR 184, 191). 7 8 With respect to daily activities, he watches television, 9 goes to physical therapy, goes shopping for dinner, talks on 10 the telephone and plays games. 11 anyone else or pets or other animals. 12 impairments, he can no longer work or look for work. 13 no problem with his personal care. He needs special reminders 14 to take medicine (and to not take too much). 15 affect his sleep. He does not take care of As a result of his He has His impairments (See AR 185-86). 16 17 He cannot cook; he prepares sandwiches and T.V. dinners 18 only. 19 will burn himself. With encouragement, he is able to make his 20 bed, hang towels, and clean his room (his chores take about 30 21 minutes). 22 house or yard work. He goes outside two to three times daily, 23 riding in a car, but never alone (his grandmother is “afraid 24 to let him go out by himself”). 25 shopping (but he goes with her). (See AR 186-87, 191). His grandmother cooks for him since she is afraid he Pain in his hips and head limits his ability to do His grandmother does all his 26 27 He is able to count change and handle a savings account. 28 He does not pay bills (he does not have any), and he is not 5 1 able to use a checkbook or money orders. 2 cost of things. He does not know the (See AR 187-88). 3 4 His hobbies and interests are watching television and 5 playing games on television (with loud volume because of his 6 hearing issue). 7 father, mothers, friends, and shows (with his grandmother) on 8 a weekly basis. 9 because he has no patience and wants things immediately. 10 Since his impairments began, he lost his girlfriend, leaving 11 him depressed and frustrated. (See AR 889). He spends time with others, visiting his He has problems getting along with others 12 13 His impairments affect his lifting, squatting, bending, 14 standing (for too long), walking, kneeling, talking, hearing, 15 stair-climbing, 16 concentration, understanding, and getting along with others. 17 He can lift only 10 pounds, he has a hard time picking up 18 things, he gets tired quickly, he has to have things repeated, 19 and he is always mad. 20 needing to rest, and he can resume walking after 5 minutes of 21 rest. 22 frustrated. 23 follow written instructions well, and he does not follow 24 spoken instructions (unless “he wants to do it”). He does not 25 get along well with authority figures because he has a bad 26 attitude, and he does not handle stress well. 27 hearing aid and glasses, and he should but will not use a 28 cane. seeing, memory, completing tasks, He can walk for 15 minutes before He can pay attention for 20 minutes before he gets He does not finish what he starts. (See AR 169-70). 6 He does not He uses a 1 2 Plaintiff testified at the August 11, 2014 administrative hearing 3 as follows (see AR 37-47): 4 5 He last worked doing construction (plumbing, demolition) 6 for a few months, before he had his accident (he hit a 7 concrete median and a wall while traveling at approximately 8 100 miles per hour on a motorcycle). 9 tattoo parlor doing tattoos for people, before he had his 10 accident; he can no longer do that work because of pain 11 sitting down or standing up for too long. 12 long causes pain in his hips and legs. 13 for about an hour and a half, and he can stand at one time for 14 about one hour. 15 his identification to the hearing; he has to write down things 16 to do or else he forgets them. 17 eating; he forgets to chew food and ends up choking. 18 35-38, 40-41-42). He also worked at a Sitting for too He can sit at one time He has memory problems -- he forgot to bring He sometimes has difficulty (See AR 19 20 He spends his days at home (he lives with his aunt), 21 watching 22 sleeping area. 23 about once every two weeks. television, washing dishes, and organizing his He has few friends; he spends time with them (See AR 38-41). 24 25 Whether he could do a job in which he takes a break every 26 45 minutes to an hour depends on the level of pain and his 27 pain medication. 28 about 2 months He last went to a doctor, a pain doctor, ago. He takes 7 pain medication, but he 1 presently is not taking medication because he has not been to 2 a doctor due to the lack of a ride (his grandparents live far 3 away). His pain medication does not make the pain go away; it 4 makes him less uncomfortable, but he still has to constantly 5 sit down and stand up. 6 remove the rods in his legs. He anticipates having a surgery to (See AR 38, 40-41). 7 8 After briefly summarizing Plaintiff’s testimony (see AR 23 [“The 9 claimant alleges disabling limitations due to his symptoms, including 10 difficulties with exertion and ambulation (Exhibit 5E)”], the ALJ 11 addressed Plaintiff’s credibility as follows: “After careful 12 consideration of the evidence, I find that the claimant’s medically 13 determinable impairments could reasonably be expected to cause the 14 alleged symptoms; however, the claimant’s statements concerning the 15 intensity, persistence and limiting effects of these symptoms are not 16 entirely credible for the reasons explained in this decision.” (AR 23). 17 18 A claimant initially must produce objective medical evidence 19 establishing a medical impairment reasonably likely to be the cause of 20 the subjective symptoms. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 21 1996); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). Once a 22 claimant produces objective medical evidence of an underlying impairment 23 that could reasonably be expected to produce the pain or other symptoms 24 alleged, and there is no evidence of malingering, the ALJ may reject the 25 claimant’s testimony regarding the severity of his pain and symptoms 26 only by articulating specific, clear and convincing reasons for doing 27 so. Brown-Hunter v. Colvin, 798 F.3d 749, 755 (9th Cir. 2015)(citing 28 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)); see also 8 1 Smolen v. Chater, supra; Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 2 1998); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). 3 Because the ALJ does not cite to any evidence in the record of 4 malingering, the “clear and convincing” standard stated above applies. 5 6 Here, the ALJ failed to provide any reasons, let alone clear and 7 convincing reasons, for finding that Plaintiff’s testimony about the 8 intensity, persistence and limiting effects of his symptoms was not 9 fully credible.6 10 ‘what testimony Moreover, the ALJ failed to “specifically identify is not credible and what evidence undermines 11 [Plaintiff’s] complaints.’” Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 12 2007) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); see 13 also Smolen v. Chater, supra, 80 F.3d at 1284 (“The ALJ must state 14 specifically what symptom testimony is not credible and what facts in 15 the record lead to that conclusion”). 16 17 B. Remand Is Warranted 18 19 The decision whether to remand for further proceedings or order an 20 immediate award of benefits is within the district court’s discretion. 21 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no 22 useful purpose would be served by further administrative proceedings, or 23 where the record has been fully developed, it is appropriate to exercise 24 this discretion to direct an immediate award of benefits. Id. at 1179 25 6 The Court will not consider reasons for finding Plaintiff not 26 fully credible (see Joint Stip. at 20-26) that were not given by the ALJ in the Decision. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 27 2003)(“We are constrained to review the reasons the ALJ asserts.”; citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) and Pinto v. 28 Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001)). 9 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).7 16 17 18 19 ORDER 20 21 22 23 7 The Court has not reached any other issue raised by Plaintiff 24 except to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. 25 “[E]valuation of the record as a whole creates serious doubt that Plaintiff is in fact disabled.” See Garrison v. Colvin, 759 F.3d 995, Accordingly, the Court declines to rule on Plaintiff’s claims regarding the ALJ’s failure to evaluate the opinion of Plaintiff’s treating physician, Dr. Huang (see Joint Stip. at 3-5, 1520). Because this matter is being remanded for further consideration, this issue should also be considered on remand. 26 1021 (2014). 27 28 10 1 For the foregoing reasons, the decision of the Commissioner is 2 reversed, and the matter is remanded for further proceedings pursuant to 3 Sentence 4 of 42 U.S.C. § 405(g). 4 5 LET JUDGMENT BE ENTERED ACCORDINGLY. 6 7 DATED: June 20, 2017 8 9 /s/ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?