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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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA – EASTERN DIVISION 11 12 ) 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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