Darlene Andrea Reffel v. Carolyn W. Colvin

Filing 22

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. (mz)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA-EASTERN DIVISION

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12 DARLENE ANDREA REFFEL,
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Plaintiff,

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

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Case No. ED CV 16-01985-AS
MEMORANDUM OPINION AND
ORDER OF REMAND

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20

PROCEEDINGS

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On September 16, 2016, Plaintiff filed a Complaint seeking review

23 of the denial of her application for Disability Insurance Benefits.
24 (Docket Entry No. 1). The parties have consented to proceed before the
25
undersigned United States Magistrate Judge.

(Docket Entry Nos. 9-10).

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On

January

31,

2017,

Defendant

filed

1

an

Answer

along

with

the

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

1 Administrative Record (“AR”). (Docket Entry Nos. 13-14).

On July 11,

2 2017, the parties filed a Joint Stipulation (“Joint Stip.”), setting
3
forth their respective positions regarding Plaintiff’s claims.

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(Docket

Entry No. 21).

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The Court has taken this matter under submission without oral

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8 argument.

See C.D. Cal. L.R. 7-15; “Order Re: Procedures in Social

9 Security Case,” filed September 20, 2016 (Docket Entry No. 7).
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BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

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13
On

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March

7,

2013,

Plaintiff,

formerly

employed

as

a

15 receptionist/physical therapy assistant, an administrative assistant for
16 a construction equipment company, and an accounting specialist for a
17 temporary agency and an insurance company (see AR 41-43, 186, 195-99),
18 filed an application for Disability Insurance Benefits, alleging an
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inability to work because of her disabling condition since September 8,

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2010.

(AR 159-65).

On December 30, 2014, the Administrative Law Judge

(“ALJ”), Jesse J. Pease, heard testimony from Plaintiff (who was

23 represented by counsel) and vocational expert Mary Jesko. (See AR 3524 67).

On

February

13,

25 Plaintiff’s application.

2015,

the

ALJ

issued

(See AR 16-27).

a

decision

denying

After determining that

26 Plaintiff had severe impairments –- “fibromyalgia, non-insulin dependent
27 diabetes, history of cervical cancer in remission, anxiety, prescription
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medication dependence, right ankle sprain, patellofemoral osteoarthritis
2

1 of the left knee, lumbar strain, obesity, migraines, and depression” (AR
2 18) –- but did not have an impairment or combination of impairments that
3

met or medically equaled the severity of one of the Listed Impairments

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(AR 19-20), the ALJ found that Plaintiff had the residual functional

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6

capacity (“RFC”)2 to perform light work3 with the following limitations:

7 can lift, carry, push or pull 20 pounds occasionally and 10 pounds
8 frequently; can stand and walk for about 6 hours out of an 8-hour
9 workday; can sit for about 6 hours out of an 8-hour workday; can do
10 postural activities occasionally, but no ladders, ropes, or scaffolds;
11 no hazardous machinery; no unprotected heights; and can do simple and
12
routine tasks in a nonpublic environment.

(AR 20-25).

The ALJ then

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determined that Plaintiff was not able to perform any past relevant work

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(AR 25), but that jobs existed in significant numbers in the national

16 economy that Plaintiff can perform, and therefore found that Plaintiff
17 was not disabled within the meaning of the Social Security Act. (AR 2518 27).
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Plaintiff requested that the Appeals Council review the ALJ’s
Decision.

(See AR 8).

The request was denied on July 19, 2016. (See AR

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1-5).

The ALJ’s Decision then became the final decision of the

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2

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).
3

“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. § 404.1567(b).
3

1 Commissioner, allowing this Court to review the decision. See 42 U.S.C.
2 §§ 405(g), 1383(c).
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4

PLAINTIFF’S CONTENTIONS

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Plaintiff alleges that the ALJ failed to properly (1) determine

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8 Plaintiff’s RFC; and (2) assess Plaintiff’s credibility.

(See Joint

9 Stip. at 3-8, 11-14).
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11

DISCUSSION

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After consideration of the record as a whole, the Court finds that

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15 Plaintiff’s second claim of error warrants a remand for further
16 consideration.
17 Plaintiff’s

Since the Court is remanding the matter based on

second

claim

of

error,

the

Court

will

not

address

18 Plaintiff’s first claim of error.
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A.

The ALJ Did Not Properly Assess Plaintiff’s Credibility

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Plaintiff asserts that the ALJ failed to properly find that

24 Plaintiff’s testimony about her pain and functional limitations was not
25 fully credible. (See Joint Stip. at 10-14). Defendant asserts that the
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1 ALJ properly considered Plaintiff’s testimony and found Plaintiff not
2 entirely credible.
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4

(See Joint Stip. at 14-17).4

Plaintiff made the following statements in a “Function Report -

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6

Adult” dated May 3, 2013 (see AR 206-14):

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She lives with her family in a house.

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Her impairments

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limit her ability to work because she has extreme swelling and

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pain when she walks, sits or stands, she has weak muscles that

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limit her walking and standing to 5 minutes (her high insulin

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level prevents her from building muscle strength), she has

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shoulders, hips and legs that when used get stiffer and more

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painful, and she has extreme anxiety and panic attacks when

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dealing with simple things (like completing paperwork).

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her impairments she takes Prozac (which keeps her awake),

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Xanax (which makes her sleepy), Buspar (which makes her

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sleepy),

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diarrhea and keeps her awake), Lisinopril (which makes her

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Cymbalta

(which

makes

her

nauseated,

gives

For

her

sleepy), Norco (which keeps her awake and causes migraine

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headaches), and Tylenol with Codeine #3. (See AR 206, 213-14).

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The Court rejects Defendant’s alternative assertion that
Plaintiff has waived this claim (see Joint Stip. at 17, citing
Independent Towers of Washington, 350 F.3d 925, 928 (9th Cir. 2003)).
See Tadman v. Berryhill, 2017 WL 1073341, *4 (C.D. Cal. March 21,
2017)(rejecting the defendant’s same waiver argument).
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With respect to daily activities, she stays at home, lies

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on the bed, and moves to lie on the couch (she cannot sit for

3

long).

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She does not take care of anyone else.

She takes care

of pets, letting them in and out of the house.

Her husband

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6

helps her take care of the pets, feeding them, playing with

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them, bathing them, and picking up after them. As a result of

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her impairments, she can no longer work, walk (she bought an

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electric scooter to get around), shop, water ski, or snow ski.

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Her impairments affect her abilities to bathe (her husband

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helps her so she does not fall; she feels exhausted after

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taking a shower or bath), to care for her hair (she cannot dry

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her hair for more than 5 minutes), to feed herelf (she cannot

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stand long enough to cook), and to use the toilet (she gets

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stiff from sitting).

She does not need special reminders to

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take care of personal needs and grooming or to take medicine.

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Her impairments inflame her joints and cause her to move to

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different beds, thereby affecting her sleep.

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213).

(See AR 207-08,

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She does not prepare meals because her joints and muscles

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gets stiff and swollen when she stands, sits or walks; her

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husband has to cook.

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work (unless she is heavily medicated) because of her pain and

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lack of strength.

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car (but “not very far”).

She is not able to do any house or yard

She goes outside occasionally, driving a
She shops for clothes and presents

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1

by mail.

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stores she has to know exactly where the items are (because of

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limited walking time).

She rarely shops in stores; when she does shop in

(See AR 208-09).

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She is not able to pay bills, count change, handle a

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saving account, or use a checkbook or money orders, because

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her shoulders are swollen and in pain.

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affected her ability to handle money; she cannot spend money

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because she cannot go anywhere for long, and her medications

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are expensive. (See AR 209-10).

Her impairments have

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She no longer does her hobbies and interests, namely,

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walking dogs, reading, and using the computer. Because of her

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impairments, she can write and use the computer only a little

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at a time.

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maybe once a day.

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basis.

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appointments, and sometimes needs to be accompanied.

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She spends time with others, talking on the phone

She

She does not go to any places on a regular

needs

to

be

reminded

to

go

to

doctors’
She has

problems getting along with others because strong-willed,

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overbearing and negative people make her anxious and cause her

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to have panic attacks. Since her impairments began, people in

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positions of authority such as police and bosses cause her to

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experience extreme anxiety and to cry. (See AR 210-12).

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Her impairments affect her lifting, squatting, bending,

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standing, reaching, walking, kneeling, stair-climbing, seeing,

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memory,

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completing

tasks,

concentration,

understanding,

following instructions, using hands, and getting along with

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6

others.

When she moves for more than 5 minutes, her joints

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tighten, get swollen, and feel pain. She can walk for 25 feet

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before she has to rest, and then must rest for at least 30

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minutes before she can resume walking.

Her ability to pay

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attention depends on her level of anxiety.

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written and spoken instructions okay.

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She can follow

Although she does not

get along well with authority figures, she has never been

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fired or laid off from a job because of problems getting along

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15

with other people (she left a job at Empire Orthopedic before

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she could be fired).

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handles changes in routine fine. Since her impairments began,

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she is afraid of new people and going places.

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wheelchair (but her husband could no longer push it) and an

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electric scooter, both of which were prescribed by her doctors

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She does not handle stress well.

(Dr. Fagan, Dr. Hussein).

She

She uses a

(See AR 211-12).

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Plaintiff made the following statements in a “Function Report -

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25 Adult” dated November 14, 2013 (see AR 232-40) :

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5

Many of Plaintiff’s statements of repetitive.

The Court will

28 try not to repeat statements made by Plaintiff in her early “Function
Report-Adult.”
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Her ability to work is limited by her shoulders (limited

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motion due to inflamed bursitis), lower back, hips, quad

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muscles, knees (particularly her left knee), joints, weak

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muscles (caused by high insulin and a high dose of Crestor),

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migraine headaches, and short-term memory loss (caused by 5-

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hour and 10 hour surgeries).

She takes Prozac (which keeps

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her awake), Tylenol with Codeine #3 (which keeps her awake)

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Norco (which keeps her awake), Restorile (which makes her

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weak) and Crestor (which makes her muscles weak).

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232, 239).

(See AR

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13
As far as her daily activities are concerned, she does

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15

not take care of anyone else or pets.

As a result of her

16

impairments, she can no longer walk, ride a bike, cook, clean,

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do her own hair, enter or exit the bath, shop, water ski, snow

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ski, hike, garden, or fill out paperwork quickly.

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impairments affect her sleep because she can only sleep on her

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back (she feels like she is laying on rocks when she sleeps on

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her sides).

Her

Her impairments affect her ability to dress (she

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wears “easy on clothing”), to bathe (she needs help getting in

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and out), to care for her hair (a friend helps her do her hair

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once a week), to feed herself (she cannot cook), to use the

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toilet (she has a hard time getting up and down), to shop, to

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clean, and to do laundry.

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care of personal needs and grooming (she cannot remember when

She needs special reminders taking

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1

she last bathed), and she needs special reminders and help

2

taking medicine (she cannot remember what pills she took; her

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husband puts her pills in a daily pill box). (See AR 233-34).

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5
She rarely goes outside; when she does go out she travels

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7

in her scooter.

She does not go out alone because she is

8

unable to put together her scooter and because she can walk,

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stand or sit for only 15 minutes (on a good day).

She can

10

drive, but only if she takes heavy doses of pain medications

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and does not drive a long distance.

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She shops by mail for

birthdays and Christmas. She shops twice a year, but only for

13
minutes.

Although she cannot pay bills, handle a savings

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15

account (she can use a computer for only 5 minutes), or use a

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checkbook or money orders, she can count change for about 5

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minutes.

(See AR 235-36).

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She no longer does any of her hobbies or interests
because of her severe pain.

With reminders, she goes to the

doctors every 3 months, and sometimes she needs somebody to

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23

accompany her (depending on her mobility, depression, anxiety

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and migraines).

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with

26

impairments began, changes in social activities cause her

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severe anxiety and panic attacks which lead to depression.

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(See AR 236-37).

family,

She does not have any problems getting alon

friends,

neighbors,

10

or

others.

Since

her

1

Her impairments affect the same areas as she stated

2

before, with the addition of talking and the elimination of

3

getting along with others.

4

She can walk for 50 feet before

needing to rest, and then she needs a minimum of half-a-day

5
6

before she can resume walking. The length of time she can pay

7

attention depends on her depression, anxiety or panic atacks.

8

She cannot finish what she starts, and she has difficulty with

9

written instructions (she has to re-read them) and spoken

10

instructions (she has to have them repeated).

11

figures frighten her and cause her severe anxiety and panic

12

attacks.

Authority

She does not handle stress well, which is why she

13
has been prescribed four different medications.

She handles

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15

changes in routine only if she can remember the change (her

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short-term memory loss interferes).

Her unusual behaviors

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include talking to herself and obsessing over things.

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uses a wheelchair, which was prescribed by a doctor about 10

19

years ago, and a scooter, which was prescribed by a doctor 3

20

years ago.

She

(See AR 237-38).

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23
24

Plaintiff testified at the December 30, 2014 administrative hearing
as follows (see AR 40-52):

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26

She attended college for one year. In 2007/2008, she did

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skilled

28

accounting, copying checks, opening mail -- for a temporary

accounting

work

--

going

11

through

records

doing

1

service.

2

basic accounting, for a construction equipment company.

3

also worked as a receptionist/physical therapy assistant for

4

She worked as an administrative assistant, doing

a physical therapy place.

She

The last place she worked was not

5
6

friendly and “kicked up” her anxiety.

When asked why she was

7

not able to work, she said she had brought a “cheat sheet”

8

because her anxiety and panic attacks causes her brain to go

9

blank and because she had a hard time remembering things. She

10

has fibromyalgia, pain in her shoulders (which makes her hands

11

numb),

12

pain

in

her

joints,

migraine

headaches,

diabetes

(uncontrolled), anxiety (every day), and panic attacks (caused

13
by anything new, but at least once a week in the past month;

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15

it takes her at least an hour to return to normal after an

16

attack).

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cancer), she cannot take care of her daily personal care

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(shower, hair, shaving), she cannot sit because her hips get

19

stiff and her lower back starts to hurt (with pain down to her

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ankles), her left knee does not bend or straighten (it swells

21

Since 2010 (when she had her last surgery for

up), she can walk for about 15 minutes before her back

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23

tightens up, she cannot sleep because of the shoulder pain,

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and

she

is

sensitive

to

heat.

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fibromyalgia relieves the pain for a couple of days.

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fibromyalgia she has been prescribed various medications

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(Norco, Tylenol with Codeine), but she could not afford them

28

or they increased her anxiety; she also has been prescribed a
12

Toradol

shots

for

her

For her

1

patch (Lyrica) (“a step above Norco”), but she could not

2

afford it.

3

because she “suffer[s] through pain” and does not “want to

4

She does not take Norco “like [she] should”

move up in pain pills.”

A psychologist prescribed Prozac for

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6

her anxiety, which “seems to have helped,” but her anxiety

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kicked in when she went out (particularly during interviews,

8

when she was not able to say what she wanted).

9

prescribed a muscle relaxant.

She has been

She also has been prescribed

10

Xanax for her anxiety, but she tries not to take it so much

11

because of an addiction concern.

(See AR 40-48, 50-54).

12
13
When asked about prescription medication dependence and

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15

her “overly getting medications from different sources and

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overly

17

medication

18

rheumotologist, who released her back to the care of another

19

doctor

20

anything more for [her]” since the prescribed medications

21

using

medication,”

(something

“because

[the

she

stronger

responded
than

rheumotologist]

she

only

got

codeine)

from

her

really

couldn’t

do

“kicked up the panic and anxiety.” (See AR 46-47).

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24

She cannot do anything around the house; her husband does

25

all of the cooking and cleaning.

She tries to walk but her

26

back tightens up.

27

can sit in a chair for maybe 10 minutes, and she can walk

28

about 5 to 10 minutes (which takes her to the end of the block

Before she experiences serious pain, she

13

1

and back).

2

to lift a coffee pot with two hands that morning).

3

lie down during the day.

4

washing dishes, because she cannot stand for that long, her

5

She can lift only less than 5 pounds (she needed
She has to

She cannot finish tasks, such as

arms lock up, and then she “squirrels” and forgets what she is

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7

doing.

She would have to lay down 7 to 7 1/2 hours out of an 8-

8
9

(See AR 48-49, 53).

hour workday.

She cannot do her former receptionist work

10

because she cannot reach and move her arms, hold things, type,

11

or write things down, and because her anxiety caused by people

12

coming

13

friendliness of the people.

in,

talking

on

the

phone,

and

depending

on

the

(See AR 49-50, 52).

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15
16
17

Prior

to

discussing

Plaintiff’s

testimony,

the

ALJ

addressed

Plaintiff’s credibility as follows: “After careful consideration of the

18 evidence,

the

undersigned

finds

that

the

claimant’s

medically

19 determinable impairments could reasonably be expected to cause the
20 alleged symptoms; however, the claimant’s statements concerning the
21 intensity, persistence and limiting effects of these symptoms are not
22

entirely credible for the reasons explained in this decision.” (AR 21).

23
24
25

After discussing the medical evidence relating to Plaintiff’s

26 physical impairments (see AR 21-22), and after briefly summarizing
27 Plaintiff’s testimony in her function reports and at the administrative
28 hearing with respect to her physical impairments (see AR 22), the ALJ
14

1 addressed Plaintiff’s credibility regarding her physical impairments as
2 follows:
3
4
5

The undersigned finds the claimant not entirely credible
regarding the alleged severity of her physical impairments.

6
7
8
9

The

claimant

reports

she

has

been

using

a

prescribed

wheelchair for 10 years and a prescribed scooter for 3 years,
but the medical evidence does not establish the medical

10

necessity for an assistive ambulatory device.

11

treatment records nor Dr. Bernabe’s orthopedic report indicate

12

an ongoing need for an assistive device.

13

testified she has been taking less pain medication than she

14

Neither her

The claimant

should because of concerns about addiction.

Despite her

15
16

concerns, she is not in pain management.

17

consultative

18

overusing benzodiazepines and sedatives, and diagnosed the

19

claimant with sedative hypnotic and anxiolytic abuse (Exhibit

20

8F, p. 5-6).

21

physical

22

examiner

noted

the

claimant

A psychiatric
appears

to

be

The claimant’s allegation of a disabling

condition

is

not

well-supported.

A

sedentary

residual functional capacity is not appropriate, but the

23
claimant is capable of a light range of work.

24
25

(AR 22-23).

26
27

The ALJ then proceeded to discuss the medical evidence relating to

28 Plaintiff’s mental impairments.

In that discussion, the ALJ briefly
15

1 summarized Plaintiff’s testimony in her Function Reports and at the
2 administrative hearing concerning her mental impairments.

(See AR 23-

3 25). The ALJ addressed Plaintiff’s credibility regarding her mental
4 impairments as follows:
5
6
The undersigned finds the claimant not entirely credible

7
8
9

regarding the alleged severity of her mental impairments. The
claimant stopped working because she was not treated well at

10

her

11

treatment and even reported returning to school.

12

has not been following up with a psychiatrist, medication

13

management

14

workplace,

but

became

she

responded

more

difficult,

benefitting from Prozac.

well

but

to

mental

she

health

Since she

acknowledges

The claimant has been able to

15
16

interact

appropriately

with

treatment

providers

and

17

consultative examiners.

She appears capable of working in a

18

nonpublic environment.

19

indicates the claimant would be capable of simple and routine

20

tasks.

Dr. Unwalla’s psychiatric report also

21 (AR 25).
22
23
A

claimant

initially

must

produce

objective

medical

evidence

24
25

establishing a medical impairment reasonably likely to be the cause of

26 the subjective symptoms. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.
27 1996); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991).

Once a

28 claimant produces objective medical evidence of an underlying impairment
16

1 that could reasonably be expected to produce the pain or other symptoms
2 alleged, and there is no evidence of malingering, the ALJ may reject the
3 claimant’s testimony regarding the severity of his or her pain and
4 symptoms only by articulating specific, clear and convincing reasons for
5

doing

so.

Brown-Hunter

v.

Colvin,

798

F.3d

749,

755

(9th

Cir.

6
7
8

2015)(citing Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir.
2007)); see also Smolen, supra; Reddick v. Chater, 157 F.3d 715, 722

9 (9th Cir. 1998); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th
10 Cir. 1997). Because the ALJ does not cite to any evidence in the record
11 of malingering, the “clear and convincing” standard stated above
12 applies.
13
14

Here, the ALJ failed to provide clear and convincing reasons for

15
16

finding that Plaintiff’s testimony about the intensity, persistence and

6
17 limiting effects of her symptoms was not entirely credible.

18
19

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

20 not credible and what evidence undermines [Plaintiff’s] complaints.’”
21 Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (quoting Lester v.
22

Chater, 81 F.3d 821, 834 (9th Cir. 1995)); see also Smolen, supra, 80

23
24
6

The Court will not consider reasons for finding Plaintiff not

25 entirely credible (see Joint Stip. at 15-17) that were not given by the
ALJ in the Decision. See Connett v. Barnhart, 340 F.3d 871, 874 (9th
26 Cir. 2003)(“We are constrained to review the reasons the ALJ asserts.”;
citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947), Pinto v.

27 Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001)); and Garrison v.
Colvin, 759 F.3d 995, 1010 (9th Cir. 2014)(“We review only the reasons
28 provided by the ALJ in the disability determination and may not affirm
the ALJ on a ground upon which he did not rely.”).
17

1 F.3d at 1284 (“The ALJ must state specifically what symptom testimony is
2 not credible and what facts in the record lead to that conclusion”).
3
4

Second, the ALJ’s determination that Plaintiff’s testimony about

5
6

using a wheelchair prescribed 10 years earlier and using a scooter

7 prescribed 3 years earlier was not supported by the medical evidence
8 (i.e. treatment records, orthopedic report) was an insufficient reason
9 for finding Plaintiff less than fully credible with respect to her
10 testimony about the severity of her physical impairments.
Once a
11 claimant demonstrates medical evidence of an underlying impairment, “an
12

ALJ ‘may not disregard [a claimant’s testimony] solely because it is not

13
substantiated affirmatively by objective medical evidence.’” Trevizo v.

14
15

Berryhill, 862 F.3d 987, 1001 (9th Cir. 2017)(quoting Robbins v. Soc.

16 Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)).

The ALJ did not cite

17 to any evidence, including Plaintiff’s treatment records and Dr.
18 Bernabe’s August 7, 2013 Report, contradicting Plaintiff’s testimony
19 that she had not been prescribed a wheelchair 10 years earlier and a
20 scooter 3 years earlier. Compare Chaudry v. Astrue, 688 F.3d 661, 671,
21

n. 9 (9th Cir. 2012)(finding that the claimant’s “non-prescribed use of

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a wheelchair and unwarranted use of a cane,” which was supported by
specific evidence in the record

–- “The cane was prescribed only at

25 [the claimant’s] request and the wheelchair was never prescribed.

The

26 record reflects that use of a cane was not appropriate for [the
27 claimant’s] asserted back pain.” -- also factored into the ALJ’s
28
18

1 determination that (the claimant’s] subejctive expression of his
2 limitations lacked credibility.”).
3
4

Third, to the extent that the ALJ determined that Plaintiff was not

5
6

credible because her testimony about taking less pain medication (Norco)

7 than she should out of concerns about addiction (see AR 54) was
8 inconsistent with her lack of pain management and her overuse of
9 anxiolytics and pain medication (see AR 23), the ALJ’s reason for
10 discounting Plaintiff’s testimony was not clear and convincing. See
11 Trevizo, supra, 862 F.3d at 1001-02 (“The ALJ did not address the
12
believability of Trevizo’s proffered reasons: her fear of becoming

13
addicted to narcotics and the abiltity of alternate drugs to control her

14
15

pain. The ALJ’s weighing of Trevizo’s failure to take narcotics against

16 her credibility was thus erroneous.”).

While the ALJ was critical of

17 Plaintiff not being in pain management, the ALJ failed to cite evidence
18 that Plaintiff had been referred to pain management. See Tommasetti v.
19 Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)(an ALJ may consider
20 “unexplained or inadequately explained failure to seek treatment or to
21

follow a prescribed course of treatment” when weighing a claimant’s

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24

credibility)(citation omitted).

The ALJ also failed to state how

Plaintiff’s

her

testimony

concerning

concerns

about

addiction

was

25 inconsistent with Plaintiff not being in pain management and did not ask
26 Plaintiff why she was not in pain management.
27
28
19

1

At the hearing, Plaintiff testified she did not take certain

2 medication, specifically a prescribed patch (Lyrica), because she could
3
not afford it and did not have great insurance.

4

(See AR 50-51, 53-54;

see also AR 653 (In a Report dated August 4, 2013, consultative

5
6

psychiatric examiner Khushro Unwalla, M.D., stated that Plaintiff “is

7 underutilizing her psychiatric medications including Prozac and BuSpar
8 becaus of insurance issues”).

Plaintiff’s lack of involvement in pain

9 management may have been related to her financial issues.

See Smolen,

10 supra (“Where a claimant provides evidence of a good reason for not
11 taking medication for her symptoms [such as the plaintiff’s testimony
12
that “she had not sought treatment (and therefore was not taking

13
medication) for her chronic fatigue and pain because, as a result of not

14
15

being able to maintain a job, she had no insurance and could not afford

16 treatment”], her symptom testimony cannot be rejected for not doing
17 so.”); see also Regennitter v. Commissioner of Soc. Sec. Admin., 166
18 F.3d 1294, 1297 (9th Cir. 1998)(“. . . [W]e have proscribed the
19 rejection of a claimant’s complaints for lack of treatment when the
20 record establishes that the claimant could not afford it[.]”); Gamble v.
21

Chater, 68 F.3d 319, 322 (9th Cir. 1995)(“It flies in the face of the

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patent purposes of the Social Security Act to deny benefits to someone
because he is too poor to obtain medical treatment that may help

25 him.”)(quoting Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984)).
26 In addition, the ALJ failed to state how Plaintiff’s testimony
27 concerning her concerns about Narco addiction was inconsistent with Dr.
28 Unwalla’s statements that Plaintiff appeared to overuse anxiolytics and
20

1 pain medications (see AR 652-53).

At the hearing the ALJ asked

2 Plaintiff, in a compound question, about her overuse of medication, but
3

did not have Plaintiff focus on her overuse of medication in her

4

responses.

(See AR 46-47).

5
6
7

Fourth,

none

of

the

reasons

given

by

the

ALJ

for

finding

8 Plaintiff’s testimony concerning the severity of her mental impairments
9 not entirely credible -- namely, Plaintiff stopped working because she
10 was not treated well at the workplace; Plaintiff responded well to
11 mental health treatment; Plaintiff’s medication management became more
12

difficult because she did not continue to go to a psychiatrist, but she

13
acknowledged

benefitting

from

Prozac;

and

Plaintiff

interacted

14
15

appropriately with treatment providers and consultative examiners –- was

16 clear and convincing.

Unlike Bruton v. Massanari, 268 F.3d 824, 828

17 (9th Cir. 2001)(finding that the ALJ’s reliance, in part, on the
18 claimant’s false statements at the administrative hearing and to a
19 doctor that “he left his job because he was laid off, rather than
20 because he was injured”), a case relied on by Defendant (see Joint Stip.
21
at 17), there is no indication that Plaintiff gave false information

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24

about why she left her employment (see AR 212 [“I left before they could
fire me cuz I couldn’t take it any longer.”], which was consistent with

25 her hearing testimony, AR 52 [“The last place I worked was not a very
26 friendly place which kicked up the anxiety even worse.”]).

Moreover,

27 while the ALJ stated that Plaintiff responded well to mental health
28 treatment, the ALJ failed to cite to particular medical records that
21

1 specifically contradicted Plaintiff’s testimony about her symptoms and
2 limitations. Although, as the ALJ noted, Plaintiff testified the Prozac
3

prescribed by the psychologist “seems to have helped” (AR 47), she also

4

testified that her anxiety still “kicks in” when she goes any anywhere,

5
6

particularly to an interview (AR 47).

Thus, it is unclear, based on

7 Plaintiff’s own testimony, that the Prozac was effective in controlling
8 her symptoms.

See Warre v. Comm’r of Soc. Sec. Admin. 439 F.3d l001,

9 1006 (9th Cir. 2006)(“Impairments that can be controlled effectively
10 with medication are not disabling for the purpose of determining
11 eligibility for SSI benefits.”). Finally, the ALJ failed to specify how
12
Plaintiff’s ability to interact appropriately with treatment providers

13
and consultative examiners served as a basis for discounting Plaintiff’s

14
15

testimony.7

16
17 B.

Remand Is Warranted

18
19
20

The decision whether to remand for further proceedings or order an
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

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23

useful purpose would be served by further administrative proceedings, or

24 where the record has been fully developed, it is appropriate to exercise
25
26
27
28

7

The Court notes that Defendant did not discuss three of the
ALJ’s reasons for finding Plaintiff’s testimony concerning the severity
of her mental impairments not entirely credible (namely, positive
response to mental health treatment; benefit from Prozac; and
appropriate interaction with treatment providers and consultative
examiners), see Joint Stip. at 15-17.
22

1 this discretion to direct an immediate award of benefits.

Id. at 1179

2 (“[T]he decision of whether to remand for further proceedings turns upon
3
the likely utility of such proceedings.”). However, where, as here, the

4

circumstances of the case suggest that further administrative review

5
6

could remedy the Commissioner’s errors, remand is appropriate.

McLeod

7 v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); Harman v. Apfel, supra,
8 211 F.3d at 1179-81.
9

Since the ALJ failed to properly assess Plaintiff’s credibility,

10 remand is appropriate. Because outstanding issues must be resolved
11 before a determination of disability can be made, and “when the record
12

as a whole creates serious doubt as to whether the [Plaintiff] is, in

13
fact, disabled within the meaning of the Social Security Act,” further

14
15

administrative proceedings would serve a useful purpose and remedy

16 defects.

Burrell

v.

Colvin,

775

F.3d

1133,

1141

(9th

Cir.

17 2014)(citations omitted).8
18 //
19 //
20 //
21
22
23
24
8

The Court has not reached any other issue raised by Plaintiff

25 except to determine that reversal with a directive for the immediate
payment of benefits would not be appropriate at this time.
26 “[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,

27 1021 (2014). Accordingly, the Court declines to rule on Plaintiff’s
claims regarding the ALJ’s failure to properly determine Plaintiff’s RFC
28 (see Joint Stip. at 3-8). Because this matter is being remanded for
further consideration, this issue should also be considered on remand.
23

1

ORDER

2
3

For the foregoing reasons, the decision of the Commissioner is

4
5
6

reversed, and the matter is remanded for further proceedings pursuant to
Sentence 4 of 42 U.S.C. § 405(g).

7
8

LET JUDGMENT BE ENTERED ACCORDINGLY.

9
10 DATED: August 16, 2017
11
12
13
14

/s/
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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