Alicia Casachaqua Franco v. Carolyn W. Colvin

Filing 19

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). (afe)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION

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) Case No. EDCV 16-01868-AS
)
) MEMORANDUM OPINION AND
)
) ORDER OF REMAND
)
)
)
)
)
)
)

ALICIA CASACHAQUA FRANCO,

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Plaintiff,
v.

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NANCY A. BERRYHILL,1
Acting Commissioner of Social
Security,
Defendant.

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

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20

ORDERED

that

this

matter

is

remanded

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for

further

administrative

action consistent with this Opinion.

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PROCEEDINGS

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24

On

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26
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28

August

31,

2016,

Alicia

Casachaqua

Franco

(“Plaintiff”)

filed a Complaint pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3)
1

Nancy A. Berryhill is now the Acting Commissioner of Social
Security and is substituted for Acting Commissioner Carolyn W.
Colvin as the defendant in this suit. See 42 U.S.C. § 205(g).
1

1

seeking

2

applications

3

Security

Income.

4

Defendant

filed

5

Administrative

6

parties have consented to proceed before a United States Magistrate

7

Judge.

8

filed

9

respective positions on Plaintiff’s sole claim.

10

review

of

for

the

Commissioner’s

Disability
(Docket
an

Entry

Answer

Record

Insurance

to

(“AR”).

No.
the

a

Joint

Stipulation

1).

(“Joint

On

of

Plaintiff’s

and

Benefits

Supplemental

January

Complaint

(Docket

(Docket Entry Nos. 11-12).

denial

26,

and
Nos.

Entry

the

2017,

Certified

16-17).

The

On April 27, 2017, the parties
Stip.”),

setting

forth

their

(Docket Entry No.

18).

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BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

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On

June

5,

2012,

Plaintiff,

formerly

employed

as

a

small

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products assembler, cashier checker, management trainee, usher, and

16

motion

17

applications

18

Security Income Benefits, alleging disability beginning on February

19

16, 2012.

20

Judge

21

Plaintiff’s

22

expert Sandra Fioretti.

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ALJ denied Plaintiff’s applications in a written decision.

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8-18).

picture
for

projectionist
Disability

(AR 219-28).

(“ALJ”),

Paul

mother,

(see

AR

Insurance

263-67,

Benefits

314),

and

filed

Supplemental

On December 3, 2014, the Administrative Law
Coulter,

medical

heard

expert

testimony

Arnold

(See AR 30-59).

from

Ostrow,

and

Plaintiff,
vocational

On January 30, 2015, the
(See AR

25
26

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

27

case.

At

step

one,

the

ALJ

determined

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engaged in substantial gainful activity between the alleged onset
2

that

Plaintiff

had

not

1

date of February 16, 2012, and the date last insured of December 31,

2

2015.

3

last

4

systemic

5

paroxysmal

6

hepatitis.

7

Plaintiff’s impairments or combination of impairments did not meet

8

or equal a Listing found in 20 C.F.R. Part 404, Subpart P, Appendix

9

1.

(AR 10).
insured,
lupus

At step two, the ALJ found that, through the date
Plaintiff

had

erythematosus

atrial

the

(“SLE”),

fibrillation,

(AR 10-12).2

following
lupus

hypertension,

severe

impairments:

nephritis,
and

acute

obesity,
immune

At step three, the ALJ determined that

(AR 12).

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11

Before proceeding to step four, the ALJ found that Plaintiff

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had the residual functional capacity (“RFC”)3 to perform sedentary

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work4, with the following exceptions: postural activities such as

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climbing, balancing, stooping, kneeling, crouching, and crawling can

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be performed on an occasional basis; and Plaintiff cannot work on

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ladders, ropes, or scaffolds or at unprotected heights.

(AR 12-16).

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26
27
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2

The ALJ found that Plaintiff’s mental impairments, including
an anxiety disorder, depressive disorder, psychotic disorder,
adjustment disorder, and polysubstance abuse, as well as Plaintiff’s
bilateral cataracts, were nonsevere. (AR 11).
3

A Residual Functional Capacity is what a claimant can still
do despite existing exertional and nonexertional limitations.
See
20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
4

“Sedentary work involves lifting no more than 10 pounds at a
time and occasionally lifting or carrying articles like docket
files, ledgers, and small tools.
Although a sedentary job is
defined as one which involves sitting, a certain amount of walking
and standing is often necessary in carrying out job duties. Jobs are
sedentary if walking and standing are required occasionally and
other sedentary criteria are met.”
20 C.F.R. §§ 404.1567(a),
416.967(a).
3

1

At step four, the ALJ determined that Plaintiff was not able to

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perform any past relevant work.

3

found that, considering Plaintiff’s age, education, work experience,

4

and RFC, there were jobs existing in significant numbers in the

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national

6

Consequently,

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within the meaning of the Social Security Act.

economy
the

that
ALJ

(AR 16).

Plaintiff
concluded

could
that

At step five, the ALJ

perform.

Plaintiff

(AR

was

not

17-18).
disabled

(AR 18).

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Plaintiff requested that the Appeals Council review the ALJ’s

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10

decision, which was denied on May 11, 2016.

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decision

then

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allowing

this

13

405(g), 1383(c).

became
Court

the

to

final

review

decision

the

(AR 1-4).
of

The ALJ’s

Commissioner,

See

decision.

the

42

U.S.C.

§§

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STANDARD OF REVIEW

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The Court reviews the ALJ’s decision to determine if it is free

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of legal error and supported by substantial evidence.

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Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012).

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“Substantial evidence” is more than a mere scintilla, but less than

21

a preponderance.

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2014).

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finding, “a court must consider the record as a whole, weighing both

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evidence

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[Commissioner’s] conclusion.”

Aukland v. Massanari, 257 F.3d 1033,

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1035

a

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reasonably

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conclusion, [a court] may not substitute [its] judgment for that of

(9th

To

Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir.

determine

that

Cir.

See Brewes v.

supports

2001).

support

whether

and

As

either

substantial

evidence

result,

affirming

4

evidence

that

“[i]f
or

supports

detracts

the

reversing

from

the

evidence
the

a

can

ALJ’s

1

the ALJ.”

2

2006).

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir.

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PLAINTIFF’S CONTENTION

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Plaintiff contends that the ALJ failed to articulate clear and

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7

convincing

reasons

for

discounting

Plaintiff’s

8

testimony.

pain

and

symptom

(See Joint. Stip. at 4-11, 17-18).

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DISCUSSION

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After reviewing the record, the Court finds that the ALJ did

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not articulate clear and convincing reasons to find Plaintiff less

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than

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consideration.

fully

credible.

The

Court

therefore

remands

for

further

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A.

The ALJ Did Not Properly Assess Plaintiff’s Credibility

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Plaintiff contends that her repeated hospitalizations support

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her

pain

and

symptom

21

discrediting

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evidence in the record.

this

testimony,

testimony

and

without

that

the

support

ALJ

from

erred

in

substantial

(Joint Stip. at 4-11, 17-18).

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Defendant

asserts

that

the

ALJ

gave

multiple

permissible

25

reasons for finding Plaintiff’s testimony not fully credible, each

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of which is supported by substantial evidence in the record.

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Stip. at 12-17).

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5

(Joint

1

Plaintiff completed an Adult Function Report, dated August 7,

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2012 (see AR 279-86), in which she reported needing assistance with

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dressing, bathing, caring for hair, shaving, feeding herself, and

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using the toilet due to inflamed joints.

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her illnesses, injuries, or conditions have affected her ability to

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look for employment and complete normal day to day activities, and

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affected

8

throughout my organs.”

9

help or reminders to take her medicine.

her

sleep

because

she

(AR 280).

(AR 280).

feels

She stated that

“discomfort

internally

Plaintiff stated that she needs
(AR 281).

Furthermore,

10

while she can prepare simple meals such as fruits, vegetables, and

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cereal, she stated that she cannot do house and yard work due to

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doctors’

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possible” and does not do any shopping, but does have the ability to

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go out alone.

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car, but does not own a car of her own.

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reported

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affected her ability to handle money.

orders.

that

(AR

281).

(AR 282).

her

She

goes

outside

“as

little

as

When she leaves home Plaintiff travels by

illnesses,

injuries,

(AR 282).

or

Plaintiff

conditions

have

not

(AR 283).

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19

Plaintiff listed her hobbies as reading, watching television,

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going

on

the

internet,

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described

doing

22

Plaintiff

reported

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conditions began, she has experienced changes in that she can no

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longer work out or play the guitar.

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social

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talking and watching television with others.

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stated that she needs someone to accompany her when participating in

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social activities.

activities

these

working
activities

that,

a

few

since

times

(AR 283).

a

out,

and

well.
her

playing
(AR

month,

283).

illnesses,

(AR 283).

guitar,

and

However,

injuries,

or

She participates in

which

she

described

(AR 283).

as

Plaintiff

She reported changes in these social
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1

activities

2

asserting: “[e]verything changed due to photosensitivity and severe

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inflammation of joints.”

4

injuries,

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standing, reaching, walking, sitting, kneeling, talking, hearing,

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stair-climbing,

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understanding, following instructions, and using hands.

8

She reported that she can walk thirty minutes before needing to

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rest, and would need twenty minutes to rest before resuming walking.

since

or

284).

her

illnesses,

(AR 284).

conditions

seeing,

injuries,

affect:

memory,

Additionally,

or

conditions

began,

She stated that her illnesses,
lifting,

completing

Plaintiff

squatting,

tasks,

reported

bending,

concentration,

being

(AR 284).

10

(AR

11

attention for a normal period of time, and that she can follow

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written and spoken instructions well.

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that the medications she has been prescribed have “severely affected

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vision, hearing, talking and has caused lethargy.”

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stated that she does not handle stress or changes in routine well.

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(AR 285).

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reported needing to use these aids daily.

(AR 284).

able

to

pay

Plaintiff noted

(AR 284).

She

She was prescribed glasses and contacts at age five, and
(AR 285).

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At

19

the

December

3,

2014

administrative

hearing,

Plaintiff

20

testified that when she was diagnosed with SLE, a type of lupus, in

21

May

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joints that would cause parts of the body, such as her hands, to

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expand up to three times in size; inability to walk; incontinence;

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memory loss; and delusions and incoherence due to fevers of up to

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103 degrees.

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medications in relation to her severe impairments, and testified:

27

“I’ve had adverse effects to medications they’ve tried, prior, due

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to my lupus.

of

2012,

her

symptoms

(AR 48).

were

as

follows:

inflammation

of

the

Plaintiff has been prescribed a variety of

For example, Plaquenil, which is used for malaria
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1

cases, made me hallucinate, and be disoriented and incoherent.

2

I’ve had three brain inflammations, to the point where . . . I have

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no memory of a few days.”

4

as of the date of the hearing, she could not sit up for long periods

5

of time, had to remain lying down, and could not lift anything over

6

ten pounds.

7

compelled

8

Plaintiff is sometimes unable to walk and is extremely lethargic.

9

(AR 48).

(AR 47).

to

live

(AR 44).

And

Plaintiff also testified that,

Additionally, Plaintiff noted that she was

with

her

mother,

who

cares

for

her,

since

Plaintiff concluded her testimony by stating: “My disease

10

is very inconsistent.

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to

12

holistically speaking, . . . I do get disoriented at times.”

13

58).

stay

focused;

The flare-ups are unpredictable . . . . I try

but

due

to

all

this

medication

and

you

know,
(AR

14

After

15

review

of

the

medical

evidence,

the

ALJ

found

that

16

Plaintiff’s medically determinable impairments could reasonably be

17

expected to cause her alleged symptoms.

18

found

19

persistence,

20

entirely

21

Plaintiff’s

22

providing

two

reasons:

(1)

23

diagnosis

and

placement

on

24

have

25

symptoms” (AR 15); and (2) “the objective medical evidence does not

26

support the alleged severity of her symptoms.”

that

Plaintiff’s
and

been

statements

limiting

credible.

(See

subjective

relatively

(AR 14).

effects
AR

concerning
of

14-16).

complaints
“the
proper

effective

these
The

were
record

only

the

symptoms
ALJ

intensity,
were

determined

partially

reflects

medications,
in

However, the ALJ

that

these

controlling

the

not
that

credible,
since

her

medications
claimant’s

(AR 16).5

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28

5

While Plaintiff contends that the ALJ appeared to discredit
Plaintiff because she stopped working due to a bad economy (see
8

1

A claimant initially must produce objective medical evidence

2

establishing a medical impairment reasonably likely to be the cause

3

of her subjective symptoms.

4

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

5

1991).

6

underlying impairment that could reasonably be expected to produce

7

pain

8

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

9

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

or

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

Once a claimant produces objective medical evidence of an

other

symptoms

alleged,

and

there

is

no

evidence

of

10

clear and convincing reasons for doing so.

11

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

12

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

Because the ALJ does not cite

13

to

malingering,

14

convincing reasons” standard applies.

any

evidence

in

the

record

of

Brown-Hunter v. Colvin,

the

“clear

and

clear

and

15
16

As

set

forth

below,

the

ALJ

failed

to

provide

17

convincing reasons for finding that Plaintiff’s testimony about the

18

intensity, persistence, and limiting effects of her symptoms was not

19

fully credible.6

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21
22
23
24
25
26
27
28

Joint Stip. at 10), the ALJ’s statements on this subject are merely
descriptive of her work history.
(See AR 15).
Therefore, this
contention will not be further discussed.
6

The Court will not consider reasons for finding Plaintiff not
fully credible (see Joint Stip. at 16) that were not given by the
ALJ in the Decision.
See Trevizo v. Berryhill, No. 15-16277, 2017
WL 2925434, at *6 (9th Cir. July 10, 2017) (quoting Garrison, 759
F.3d at 1010); see also SEC v. Chenery Corp., 332 U.S. 194, 196
(1947).
9

1

First, the ALJ failed to “specifically identify ‘what testimony

2

is

3

complaints.’” Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007)

4

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

5

amended)); see also Smolen, 80 F.3d at 1284 (“The ALJ must state

6

specifically what symptom testimony is not credible and what facts

7

in the record lead to that conclusion”).

not

credible

and

what

evidence

undermines

[Plaintiff’s]

8
9

Second, the ALJ partially discredited Plaintiff’s testimony on

10

the basis that “the record reflects that since her diagnosis and

11

placement

12

relatively effective in controlling the claimant’s symptoms.”

13

15).7

14

(9th Cir. 2006) (“Impairments that can be controlled effectively

15

with medication are not disabling for the purpose of determining

16

eligibility for SSI benefits.”).

17

ALJ cited to hospital records and treatment notes reflecting periods

18

of time where Plaintiff was doing well and had no complaints.

19

AR 15, citing AR 470 [April 25, 2013 renal specialist note], 480

20

[January 24, 2013 clinical note], 696 [July 24, 2013 post-discharge

21

note], 896 [June 13, 2014 clinical note], 900 [September 18, 2014

22

treatment

23

medications

24
25
26
27
28

on

proper

medications,

these

medications

have

been
(AR

See Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006

note]).
or

However,

treatments

that

In support of this statement, the

the
were

7

ALJ

pointed

able

to

to

no

effectively

(See

specific
control

In his Decision, the ALJ noted that Plaintiff was diagnosed
with SLE after a hospital stay from May 29, 2012 to June 1, 2012.
(AR 15, citing AR 416).
Although the ALJ did not specify the
date(s) on which Plaintiff’s medications were prescribed, it appears
that Plaintiff was prescribed medications related to her SLE
beginning in May 2012.
(See AR 318 [Plaquenil and Prednisone,
Discharge Summary, dated May 17, 2012], AR 489 [CellCept, Discharge
Summary, dated December 31, 2012]).
10

1

Plaintiff’s symptoms on a consistent basis.

2

833 (“Occasional symptom-free periods—and even the sporadic ability

3

to work—are not inconsistent with disability”); see also Trevizo v.

4

Berryhill, No. 15-16277, 2017 WL 2925434, at *11 (9th Cir. July 10,

5

2017).

See Lester, 81 F.3d at

6
7

Contrary to the ALJ’s finding, Plaintiff’s medications did not

8

appear to effectively control her symptoms, since the medical record

9

reveals repeated, prolonged periods of hospitalization even after

10

the medications were prescribed.

11

dated May 17, 2012], 416 [Discharge Summary dated June 1, 2012], 438

12

[Discharge Summary dated January 7, 2013], 489 [Discharge Summary

13

dated December 31, 2012], 704 [Discharge Summary dated July 20,

14

2013]).8

15

treatments for her lupus on June 20, 2014.

16

AR

17

chemotherapy to help control her lupus symptoms”]).

18

citing

19

“relatively effective in controlling the claimant’s symptoms” (AR

20

15) was not a clear and convincing reason for partially discrediting

21

Plaintiff’s testimony.

Furthermore,

13

[the

to

ALJ

Plaintiff

acknowledged

Plaintiff’s

(See AR 317 [Discharge Summary

prior

began

a

Plaintiff

series

chemotherapy

(See AR 891-94; see also
was

medications

of

and

“taking

a

form

of

Consequently,

treatments

as

being

22
23
24

Third,
evidence

the

does

ALJ’s

not

determination

support

the

that

alleged

“the

severity

objective
of

medical

[Plaintiff’s]

25
8

26
27
28

The ALJ’s statement, based on the absence of treatment
records between July 24, 2013 and June 13, 2014 (AR 15), that
Plaintiff appeared to be “doing well with no complaints” for almost
a year is contradicted by the fact that Plaintiff was hospitalized
during that time period.
(See AR 756-59 [discharge instructions
dated October 4, 2013]).
11

1

symptoms” (AR 16) was an insufficient reason for finding Plaintiff

2

less then fully credible.

3

evidence of an underlying impairment, “an ALJ ‘may not disregard [a

4

claimant’s

5

affirmatively by objective medical evidence.’”

6

2925434, at *11 (quoting Robbins, 466 F.3d at 883); see also Reddick

7

v. Chater, 157 F.3d 715, 722 (9th Cir. 1998).

8

not specify what objective medical evidence he drew upon to support

9

his adverse credibility finding.

testimony]

Once a claimant demonstrates medical

solely

because

it

is

not

substantiated

Trevizo, 2017 WL

Moreover, the ALJ did

Since the only other reason given

10

by the ALJ for discounting Plaintiff’s testimony was improper, the

11

ALJ was not permitted to find Plaintiff partially not credible based

12

on a lack of supporting objective medical evidence.

13
14

B.

Remand Is Warranted

15

The decision whether to remand for further proceedings or order

16
17

an

immediate

award

of

benefits

Harman

v.

Apfel,

is

18

discretion.

19

2000).

20

the

21

immediate

22

whether to remand for further proceedings turns upon the likely

23

utility of such proceedings.”).

24

the case suggest that further administrative review could remedy the

25

Commissioner’s errors, remand is appropriate.

26

F.3d 881, 888 (9th Cir. 2011); Harman, 211 F.3d at 1179-81.

211

within
F.3d

the

1172,

district
1175-78

court’s

(9th

Cir.

Where no useful purpose would be served by remand, or where

record

is

fully

award

of

developed,

benefits.

it

is

appropriate

Id.

at

1179

to

(“[T]he

direct

an

decision

of

However, where the circumstances of

27
28
12

McLeod v. Astrue, 640

1

Here, because the ALJ failed to properly assess Plaintiff’s

2

credibility, remand is appropriate.

3

be resolved before a determination of disability can be made, and

4

“when the record as a whole creates serious doubt as to whether the

5

[Plaintiff] is, in fact, disabled within the meaning of the Social

6

Security

7

useful purpose and remedy defects.

8

1133, 1141 (9th Cir. 2014) (citations omitted).

Act,”

further

Because outstanding issues must

administrative

proceedings

would

serve

a

Burrell v. Colvin, 775 F.3d

9

ORDER

10
11
12

For the foregoing reasons, the decision of the Administrative

13

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

14

for

15

405(g).

further

proceedings

pursuant

to

Sentence

4

of

42

U.S.C.

16
17

LET JUDGMENT BE ENTERED ACCORDINGLY.

18
19

Dated: July 28, 2017

20
21
22
23

_____________/s/______________
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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§