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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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-EASTERN DIVISION 11 12 DARLENE ANDREA REFFEL, 13 Plaintiff, 14 15 16 17 v. NANCY A. BERRYHILL,1 Acting Commissioner of Social Security, Defendant. 18 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 16-01985-AS MEMORANDUM OPINION AND ORDER OF REMAND 19 20 PROCEEDINGS 21 22 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). 26 27 28 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. 4 (Docket Entry No. 21). 5 6 The Court has taken this matter under submission without oral 7 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). 10 11 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 12 13 On 14 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 19 inability to work because of her disabling condition since September 8, 20 21 22 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 28 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 4 (AR 19-20), the ALJ found that Plaintiff had the residual functional 5 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 13 determined that Plaintiff was not able to perform any past relevant work 14 15 (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). 19 20 21 Plaintiff requested that the Appeals Council review the ALJ’s Decision. (See AR 8). The request was denied on July 19, 2016. (See AR 22 23 1-5). The ALJ’s Decision then became the final decision of the 24 25 26 27 28 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). 3 4 PLAINTIFF’S CONTENTIONS 5 6 Plaintiff alleges that the ALJ failed to properly (1) determine 7 8 Plaintiff’s RFC; and (2) assess Plaintiff’s credibility. (See Joint 9 Stip. at 3-8, 11-14). 10 11 DISCUSSION 12 13 After consideration of the record as a whole, the Court finds that 14 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. 19 20 A. The ALJ Did Not Properly Assess Plaintiff’s Credibility 21 22 23 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 26 27 28 4 1 ALJ properly considered Plaintiff’s testimony and found Plaintiff not 2 entirely credible. 3 4 (See Joint Stip. at 14-17).4 Plaintiff made the following statements in a “Function Report - 5 6 Adult” dated May 3, 2013 (see AR 206-14): 7 She lives with her family in a house. 8 Her impairments 9 limit her ability to work because she has extreme swelling and 10 pain when she walks, sits or stands, she has weak muscles that 11 limit her walking and standing to 5 minutes (her high insulin 12 level prevents her from building muscle strength), she has 13 shoulders, hips and legs that when used get stiffer and more 14 15 painful, and she has extreme anxiety and panic attacks when 16 dealing with simple things (like completing paperwork). 17 her impairments she takes Prozac (which keeps her awake), 18 Xanax (which makes her sleepy), Buspar (which makes her 19 sleepy), 20 diarrhea and keeps her awake), Lisinopril (which makes her 21 Cymbalta (which makes her nauseated, gives For her sleepy), Norco (which keeps her awake and causes migraine 22 23 headaches), and Tylenol with Codeine #3. (See AR 206, 213-14). 24 25 26 27 28 4 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). 5 1 With respect to daily activities, she stays at home, lies 2 on the bed, and moves to lie on the couch (she cannot sit for 3 long). 4 She does not take care of anyone else. She takes care of pets, letting them in and out of the house. Her husband 5 6 helps her take care of the pets, feeding them, playing with 7 them, bathing them, and picking up after them. As a result of 8 her impairments, she can no longer work, walk (she bought an 9 electric scooter to get around), shop, water ski, or snow ski. 10 Her impairments affect her abilities to bathe (her husband 11 helps her so she does not fall; she feels exhausted after 12 taking a shower or bath), to care for her hair (she cannot dry 13 her hair for more than 5 minutes), to feed herelf (she cannot 14 15 stand long enough to cook), and to use the toilet (she gets 16 stiff from sitting). She does not need special reminders to 17 take care of personal needs and grooming or to take medicine. 18 Her impairments inflame her joints and cause her to move to 19 different beds, thereby affecting her sleep. 20 213). (See AR 207-08, 21 22 23 She does not prepare meals because her joints and muscles 24 gets stiff and swollen when she stands, sits or walks; her 25 husband has to cook. 26 work (unless she is heavily medicated) because of her pain and 27 lack of strength. 28 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 6 1 by mail. 2 stores she has to know exactly where the items are (because of 3 limited walking time). She rarely shops in stores; when she does shop in (See AR 208-09). 4 5 6 She is not able to pay bills, count change, handle a 7 saving account, or use a checkbook or money orders, because 8 her shoulders are swollen and in pain. 9 affected her ability to handle money; she cannot spend money 10 because she cannot go anywhere for long, and her medications 11 are expensive. (See AR 209-10). Her impairments have 12 13 She no longer does her hobbies and interests, namely, 14 15 walking dogs, reading, and using the computer. Because of her 16 impairments, she can write and use the computer only a little 17 at a time. 18 maybe once a day. 19 basis. 20 appointments, and sometimes needs to be accompanied. 21 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, 22 23 overbearing and negative people make her anxious and cause her 24 to have panic attacks. Since her impairments began, people in 25 positions of authority such as police and bosses cause her to 26 experience extreme anxiety and to cry. (See AR 210-12). 27 28 7 1 Her impairments affect her lifting, squatting, bending, 2 standing, reaching, walking, kneeling, stair-climbing, seeing, 3 memory, 4 completing tasks, concentration, understanding, following instructions, using hands, and getting along with 5 6 others. When she moves for more than 5 minutes, her joints 7 tighten, get swollen, and feel pain. She can walk for 25 feet 8 before she has to rest, and then must rest for at least 30 9 minutes before she can resume walking. Her ability to pay 10 attention depends on her level of anxiety. 11 written and spoken instructions okay. 12 She can follow Although she does not get along well with authority figures, she has never been 13 fired or laid off from a job because of problems getting along 14 15 with other people (she left a job at Empire Orthopedic before 16 she could be fired). 17 handles changes in routine fine. Since her impairments began, 18 she is afraid of new people and going places. 19 wheelchair (but her husband could no longer push it) and an 20 electric scooter, both of which were prescribed by her doctors 21 She does not handle stress well. (Dr. Fagan, Dr. Hussein). She She uses a (See AR 211-12). 22 23 24 Plaintiff made the following statements in a “Function Report - 5 25 Adult” dated November 14, 2013 (see AR 232-40) : 26 27 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.” 8 1 Her ability to work is limited by her shoulders (limited 2 motion due to inflamed bursitis), lower back, hips, quad 3 muscles, knees (particularly her left knee), joints, weak 4 muscles (caused by high insulin and a high dose of Crestor), 5 6 migraine headaches, and short-term memory loss (caused by 5- 7 hour and 10 hour surgeries). She takes Prozac (which keeps 8 her awake), Tylenol with Codeine #3 (which keeps her awake) 9 Norco (which keeps her awake), Restorile (which makes her 10 weak) and Crestor (which makes her muscles weak). 11 232, 239). (See AR 12 13 As far as her daily activities are concerned, she does 14 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, 17 do her own hair, enter or exit the bath, shop, water ski, snow 18 ski, hike, garden, or fill out paperwork quickly. 19 impairments affect her sleep because she can only sleep on her 20 back (she feels like she is laying on rocks when she sleeps on 21 her sides). Her Her impairments affect her ability to dress (she 22 23 wears “easy on clothing”), to bathe (she needs help getting in 24 and out), to care for her hair (a friend helps her do her hair 25 once a week), to feed herself (she cannot cook), to use the 26 toilet (she has a hard time getting up and down), to shop, to 27 clean, and to do laundry. 28 care of personal needs and grooming (she cannot remember when She needs special reminders taking 9 1 she last bathed), and she needs special reminders and help 2 taking medicine (she cannot remember what pills she took; her 3 husband puts her pills in a daily pill box). (See AR 233-34). 4 5 She rarely goes outside; when she does go out she travels 6 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, 9 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 11 and does not drive a long distance. 12 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 14 15 account (she can use a computer for only 5 minutes), or use a 16 checkbook or money orders, she can count change for about 5 17 minutes. (See AR 235-36). 18 19 20 21 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 22 23 accompany her (depending on her mobility, depression, anxiety 24 and migraines). 25 with 26 impairments began, changes in social activities cause her 27 severe anxiety and panic attacks which lead to depression. 28 (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 14 15 changes in routine only if she can remember the change (her 16 short-term memory loss interferes). Her unusual behaviors 17 include talking to herself and obsessing over things. 18 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). 21 22 23 24 Plaintiff testified at the December 30, 2014 administrative hearing as follows (see AR 40-52): 25 26 She attended college for one year. In 2007/2008, she did 27 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; 14 15 it takes her at least an hour to return to normal after an 16 attack). 17 cancer), she cannot take care of her daily personal care 18 (shower, hair, shaving), she cannot sit because her hips get 19 stiff and her lower back starts to hurt (with pain down to her 20 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 22 23 tightens up, she cannot sleep because of the shoulder pain, 24 and she is sensitive to heat. 25 fibromyalgia relieves the pain for a couple of days. 26 fibromyalgia she has been prescribed various medications 27 (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 5 6 her anxiety, which “seems to have helped,” but her anxiety 7 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 14 15 her “overly getting medications from different sources and 16 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). 22 23 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 6 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). 14 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 22 23 24 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 22 23 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 22 23 24 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 22 23 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 22 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 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24

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