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,
13
Plaintiff,
v.
14
15
16
NANCY A. BERRYHILL,1
Acting Commissioner of Social
Security,
Defendant.
17
18
Pursuant to Sentence 4 of 42 U.S.C. § 405(g), IT IS HEREBY
19
20
ORDERED
that
this
matter
is
remanded
21
for
further
administrative
action consistent with this Opinion.
22
PROCEEDINGS
23
24
On
25
26
27
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).
11
12
BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
13
14
On
June
5,
2012,
Plaintiff,
formerly
employed
as
a
small
15
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.
23
ALJ denied Plaintiff’s applications in a written decision.
24
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
28
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).
10
11
Before proceeding to step four, the ALJ found that Plaintiff
12
had the residual functional capacity (“RFC”)3 to perform sedentary
13
work4, with the following exceptions: postural activities such as
14
climbing, balancing, stooping, kneeling, crouching, and crawling can
15
be performed on an occasional basis; and Plaintiff cannot work on
16
ladders, ropes, or scaffolds or at unprotected heights.
(AR 12-16).
17
18
19
20
21
22
23
24
25
26
27
28
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
2
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
5
national
6
Consequently,
7
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).
8
Plaintiff requested that the Appeals Council review the ALJ’s
9
10
decision, which was denied on May 11, 2016.
11
decision
then
12
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.
§§
14
STANDARD OF REVIEW
15
16
The Court reviews the ALJ’s decision to determine if it is free
17
18
of legal error and supported by substantial evidence.
19
Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012).
20
“Substantial evidence” is more than a mere scintilla, but less than
21
a preponderance.
22
2014).
23
finding, “a court must consider the record as a whole, weighing both
24
evidence
25
[Commissioner’s] conclusion.”
Aukland v. Massanari, 257 F.3d 1033,
26
1035
a
27
reasonably
28
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.
3
4
PLAINTIFF’S CONTENTION
5
Plaintiff contends that the ALJ failed to articulate clear and
6
7
convincing
reasons
for
discounting
Plaintiff’s
8
testimony.
pain
and
symptom
(See Joint. Stip. at 4-11, 17-18).
9
DISCUSSION
10
11
12
After reviewing the record, the Court finds that the ALJ did
13
not articulate clear and convincing reasons to find Plaintiff less
14
than
15
consideration.
fully
credible.
The
Court
therefore
remands
for
further
16
17
A.
The ALJ Did Not Properly Assess Plaintiff’s Credibility
18
Plaintiff contends that her repeated hospitalizations support
19
20
her
pain
and
symptom
21
discrediting
22
evidence in the record.
this
testimony,
testimony
and
without
that
the
support
ALJ
from
erred
in
substantial
(Joint Stip. at 4-11, 17-18).
23
24
Defendant
asserts
that
the
ALJ
gave
multiple
permissible
25
reasons for finding Plaintiff’s testimony not fully credible, each
26
of which is supported by substantial evidence in the record.
27
Stip. at 12-17).
28
5
(Joint
1
Plaintiff completed an Adult Function Report, dated August 7,
2
2012 (see AR 279-86), in which she reported needing assistance with
3
dressing, bathing, caring for hair, shaving, feeding herself, and
4
using the toilet due to inflamed joints.
5
her illnesses, injuries, or conditions have affected her ability to
6
look for employment and complete normal day to day activities, and
7
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
11
cereal, she stated that she cannot do house and yard work due to
12
doctors’
13
possible” and does not do any shopping, but does have the ability to
14
go out alone.
15
car, but does not own a car of her own.
16
reported
17
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).
18
19
Plaintiff listed her hobbies as reading, watching television,
20
going
on
the
internet,
21
described
doing
22
Plaintiff
reported
23
conditions began, she has experienced changes in that she can no
24
longer work out or play the guitar.
25
social
26
talking and watching television with others.
27
stated that she needs someone to accompany her when participating in
28
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
6
1
activities
2
asserting: “[e]verything changed due to photosensitivity and severe
3
inflammation of joints.”
4
injuries,
5
standing, reaching, walking, sitting, kneeling, talking, hearing,
6
stair-climbing,
7
understanding, following instructions, and using hands.
8
She reported that she can walk thirty minutes before needing to
9
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
12
written and spoken instructions well.
13
that the medications she has been prescribed have “severely affected
14
vision, hearing, talking and has caused lethargy.”
15
stated that she does not handle stress or changes in routine well.
16
(AR 285).
17
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).
18
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
22
joints that would cause parts of the body, such as her hands, to
23
expand up to three times in size; inability to walk; incontinence;
24
memory loss; and delusions and incoherence due to fevers of up to
25
103 degrees.
26
medications in relation to her severe impairments, and testified:
27
“I’ve had adverse effects to medications they’ve tried, prior, due
28
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
7
1
cases, made me hallucinate, and be disoriented and incoherent.
2
I’ve had three brain inflammations, to the point where . . . I have
3
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.
11
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
27
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
20
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
24
25
26
27
28
13
§
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