Julie A. Banks v. Carolyn W. Colvin

Filing 16

MEMORANDUM OPINION AND ORDER OF REMAND, by Magistrate Judge Alka Sagar. For the foregoing reasons, the decision of the Commissioner is reversed, and the matter is remanded for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g). (See document for further details.) (sbou)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA-SOUTHERN DIVISION

11
12 JULIE A. BANKS,
13
14

Plaintiff,
v.

15 CAROLYN W. COLVIN, Acting
Commissioner of Social

16 Security,
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18
19

Defendant.

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Case No. SA CV 14-01173-AS
MEMORANDUM OPINION AND
ORDER OF REMAND

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

20 that this matter is remanded
21 consistent with this Opinion.

for

further

administrative

action

22
23
24

PROCEEDINGS
On July 24, 2014, Plaintiff filed a Complaint seeking review of the

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

(Docket Entry Nos. 8-9).

28 On December 15, 2014, Defendant filed an Answer along with the
Administrative Record (“AR”). (Docket Entry Nos. 11-12).

The parties

1 filed a Joint Position Statement (“Joint Stip.”) on March 2, 2015,
2 setting forth their respective positions regarding Plaintiff’s claims.
3 (Docket Entry No. 14).
4

The Court has taken this matter under submission without oral

5 argument. See C.D. Cal. L.R. 7-15; “Order Re: Procedures In Social
6 Security Case,” filed July 29, 2014 (Docket Entry No. 4).
7
8

BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

9
10

In March 2009, Plaintiff, formerly employed as a cashier/checker in

11 a grocery store (see AR 90, 276), filed an application for Disability
12

Insurance Benefits, alleging a disability since March 1, 2007. (See AR
23, 67, 86, 112).1

13
14

On February 8, 2011, the Administrative Law Judge (“ALJ”), Helen E.

15 Hesse, heard testimony from Plaintiff, medical expert Sami Nafoosi, and
16 vocational expert Alan Eye. (See AR 86-106). On February 22, 2011, the
17 ALJ issued a decision denying Plaintiff’s application. (See AR 112-20).
18

Plaintiff requested that the Appeals Council review the ALJ’s

19 Decision. (See AR 185, 328-30, 333-34). On May 8, 2012, the Appeals
20 Council vacated the Decsion and remanded the matter in order for the ALJ
21 to do the following: “[A]sk any health care professional who plans to
22 testify to confirm the accuracy of the statement or report of his or her
23
24

professional qualifications which will be entered into the record as an
exhibit.

If

there

is

no

statement

or

report

of

professional

qualifications, or the individual indicates the statement or report

25
26
1

The administrative record does
27 Plaintiff’s application. (See Joint Stip. at 2 not contain a copy of
n.1). The exact date in
March on which she filed the application is unclear.
(See
28 [stating March 27, 2009], 67 [stating March 12, 2009], 86 [stating AR 33
March
12, 2009], 107-08 [stating March 12, 2009], 112, 120 [stating March 12,
2009]).
2

1 contains an error, the Administrative Law Judge will ‘qualify’ the
2 health care professional before he or she testifies by asking questions
3 on the record which will elicit the necessary information about his or
4
5

her qualifications.

(See HALLEX I-2-6-70).”

(See AR 126-27).

On February 13, 2013, the ALJ heard testimony from Plaintiff,

6 medical expert Arnold Ostrow, and vocational expert Alan Eye. (See AR
7 67-83). On April 2, 2013, the ALJ issued a decision denying Plaintiff’s
8 application.
9
10

impairments

(See AR 23-33).
--

cervical

After finding that Plaintiff had severe

spondylosis,

fibromyalgia

syndrome,

and

derangement of the left meniscus (AR 25-33),2 the ALJ found that
Plaintiff had the residual functional capacity3 (“RFC”) to perform light

11 work,4 with the following limitations: sitting 6 hours in an 8-hour
12 workday; standing and walking 6 hours in an 8-hour workday; occasionally
13 lifting 20 pounds and frequently lifting 10 pounds; no operating foot
14 pedals with the left lower extremity; occasionally climbing stairs,
15

bending,

balancing,

kneeling

and

crouching;

no

ladders,

ropes,

scaffolding, stooping or crawling; no working at unprotected heights;

16 and no lifting above shoulder level with both upper extremities. (AR 2717 31). After finding that Plaintiff could not perform her past relevant
18 work as a cashier/checker (AR 31-32), the ALJ found that jobs existed in
19 significant numbers in the national economy that Plaintiff could
20
21

perform, and therefore found that Plaintiff was not disabled within the
meaning of the Social Security Act. (AR 32-33).

22
23
24
25

2

The ALJ found that Plaintiff’s right shoulder supraspinatus
tendinopathy and colitis were non-severe impairments, and that
Plaintiff’s plantar fasciitis was not a medically determinable
impairment. (See AR 25-26).
3

A Residual Functional Capacity is what a claimant can still
See 20

26 do despite existing exertional and nonexertional limitations.
C.F.R. § 404.1545(a)(1).
27
4

“Light work involves lifting no more than 20 pounds at a time

28 with frequent lifting or carrying of objects weighing up to 10 pounds.”
20 C.F.R. §§ 404.1567(b) and 416.967(b).
3

1

Plaintiff requested that the Appeals Council review the ALJ’s 2013

2 Decision.

(See AR 18-19 ).

The request was denied on May 21, 2014.

3 (See AR 4-8). The ALJ’s 2013 Decision then became the final decision of
4

the Commissioner, allowing this Court to review the decision.

See 42

U.S.C. §§ 405(g), 1383(c).

5
6

PLAINTIFF’S CONTENTIONS

7
8

Plaintiff alleges that the ALJ erred in failing to properly: (1)

9 determine whether Plaintiff could perform other jobs; and (2) reject
10 Plaintiff’s testimony. (See Joint Stip. at 4-13, 16-24).
11
DISCUSSION

12
13

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

14 Plaintiff’s second claim of error warrants a remand for further
Since the Court is remanding the matter based on
15 consideration.
16 Plaintiff’s
17
18

second

claim

of

error,

the

Court

will

not

address

Plaintiff’s first claim of error.
A.

The ALJ Failed to Properly Assess Plaintiff’s Credibility

19
20

Plaintiff

asserts

that

the

ALJ

failed

to

provide

clear

and

21 convincing reasons for finding Plaintiff not credible. (See Joint Stip.
22 at 18-24). Defendant asserts that the ALJ properly found Plaintiff not
23 credible. (See Joint Stip. at 22-23).
24
25

Plaintiff made the following statements in an undated Disability
Report - Adult: Fibromyalgia, constant fatigue, muscle aches, headaches,

26

irritable bowel syndrom, and injuries to her feet, back and neck limit

27 her ability to work. She cannot do anything, including siting, standing
28
4

1 and walking, for a long period of time, and her arms, neck, back, and
(See AR 275, 280).

2 shoulders constantly ache.
3
4

Plaintiff made the following statements in an undated Disability
Report - Appeal: Her conditions make it much harder for her to take care

5 of her personal needs, and she needs to rest a lot. It is very hard for
6 her to do household chores; she had to rest all day to function. She
7 tries to do a few pool activities, but she cannot do any hobbies. (See
8 AR 302).
9
10

Plaintiff

made

the

following

statements

in

an

Exertion

Questionnaire dated June 5, 2009:

11
12

(1)

13

weakness, diarrhea and dizziness effect her way of life; she

14

has to rest until 2 p.m. to be able to help her children with

15

she lives in a house with family; (2) her pain, fatigue,

homework and to cook dinner (and sometimes she cannot even do
that much); (3) her fibromyalgia does not allow her to do much

16

on a daily basis (when she tries to do something, her body

17

pays

18

resulted in her not being able to use her arm for days]; she

19

goes to the pool to do leg exercises 3 times a week and goes

20

into the Jacuzzi every night to relax her muscles; she is not

21

for

it

later

[for

example,

cleaning

house

windows

able to sleep at night due to leg cramps; (4) she avoids
walking long distances because of foot problems; she uses

22

orthopedics in her shoes and wears specific athletic shoes;

23

(5) she can climb stairs, but climbing one flight causes her

24

to feel week and her legs to feel strained and aching (she

25

sometimes needs to lay down to regain her leg strength); (6)

26

She tries not to lift anything over a couple of pounds (i.e.,
pots, pans, small loads of laundry, grocery bags); when she

27
28

does lift something heavier her right shoulder hurts and
prevents her from moving her arm; (7) she does grocery
5

1

shopping with the help of her four children (ages 19, 18, and

2

10 [twins]); (8) she does not clean her home or living area;

3

(9) she drives a car, for a distance of probably 20 miles at

4

one time; (10)she does not work on cars or do yard work; (11)
before her disability she did a lot of chores, but now needs

5

to rely completely on her children to do them; (12) she has

6

difficulty finishing housework because of stairs and having to

7

stand for too long (washing dishes); (13) she sleeps 8 to 9

8

hours, but requires 3 naps (1 to 2 hours) during the day; (14)

9

she takes Neurontin 300 mg (3 times a day), Cymbalta 30 mg (1

10

time a day); Hydrocodone 500 mg (1 to 3 times a day), and
Aleve 200 mg (2 pills, two times a day); (15) she does not use

11

any assistive device; and (16) her previous disabilities

12

(neck, feet and lower back) and her fibromyalgia cause her to

13

feel depressed, and her doctor is still trying to find the

14

right combination of medications for her.

15

(See AR 284-86).

16
17

At the February 8, 2011 hearing, Plaintiff testified to the

18 following:
19
20
21

She is 43 years old, graduated high school in 1986, and
attended one semester of community college.

She lives with

her husband, two sons, and one of her daughters.

She has a

22

California Driver’s License and drives a van.

23

one dog, a labradoodle.

24

retail checker at Vons) but had to leave that job because of

25

plantar fasciitis, heel spurs and neuromas (surgery on her

26

feet did not help).

Her family has

She last worked in June 2004 (as a

She worked at Vons a total of 17 years.

(See AR 87-90, 93-94).

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28
6

1

She is not able to work because of chronic fatigue and

2

radiating pain in her arms, shoulders and neck and down her

3

back (which affects her legs).

4

She is taking Cymbalta 60 mg

(one time a day), Lyrica 50 mg (two times a day), Vicodin 500
mg (two times a day), and sometimes Flexiril (a muscle

5

relaxer, to sleep).

6

and help somewhat with depression from her pain and chronic

7

fatigue.

8

4 times a week. (See AR 91-92).

The medications help her with her pain,

For pain relief she also goes into a Jacuzzi about

9
10

She has done water aerobics (to strengthen her muscles)
for approximately 5 years, on and off. (She has not done them

11

in a while because she has not felt good).

12

minutes a day, two times a day.

13

She takes a lot of naps.

14

sons

15

with

their

She does stretches at home.

She listens to music.

homework.

She walks 15

She

does

not

She helps her
read,

watch

television, or use a computer (once a day she uses her
husband’s computer to find out about her son’s homework).

16
17 (See AR 92-93).
18
19
20
21

At the February 13, 2013 hearing, Plaintiff testified to the
following:
She still lives with her husband and children, she still

22

has her driver’s license and drives the van, and she still

23

does her water aerobics and stretches.

24

10 to 12 minutes, two times a day.

25

backpack to help carry in groceries.

She walks the dog for
The dog has a little
(See AR 68-70).

26
She can pick up 8 pounds, at most.

27
28

stand for no more than 30 minutes.

She can walk for about a

mile (which takes her about 12 minutes).
7

She can continually
Walking causes her

1

legs to be strained and heavy; she usually has to sit down and

2

take off her shoes and put on orthotic Crocs.

3

to sit on a continuous basis for 8 hours a day; she needs to

4

She is not able

walk around and stretch after 30 minutes of sitting.

(See AR

71-80).

5
6

She has pain every day -- in her neck, shoulders, and

7

lower back.

8

feel weak. She has good days and bad days; treatment from her

9

doctor

10

She does not have pain in her hands; they just

(like

getting

a

steroid

pack)

for

a

“flare

up”

(something caused by a change in her daily conditions) would
probably make her feel better for 3 days.

She once was

11

bedridden; she suffered an episode in her neck which caused

12

her to use a neck brace and heavy muscle relaxers and pain

13

medication.

(See AR 80-81).

14
15

The pool is a form of treatment for her fibroymalgia; it
allows her to meditate and do arm stretches (and then go into

16

the Jacuzzi to massage her muscles). As far as medication for

17

her impairments, she takes Naproxen (Aleve) 400 mg (two times

18

a day), occasional pain medications (such as Norco for 30 days

19

when she has a “flare up”), Lyrica (for her fibromyalgia), and

20

Cymbalta (an antidepressant, for her fibromyalgia).

21
22

(See AR

77-78, 80-82).
With

respect

to

daily

activities,

her

identity

has

23

changed due to lessened activities (she is a little slower).

24

She gets her sons ready

25

down the street, drives home, walks the dog, takes a nap, has

26

for school, drives them to school

lunch, walks the dog, goes to the pool (if it is warm enough)
to do stretches and work on her posture, go to the Jacuzzi,

27
28

watches some television, helps her sons with their homework,
and gets dinner started with her sons’ help, and stays up
8

1

until 9:00 p.m.

2

rested three times “with probably 30 to 45 minute[s] laying

3

down and getting ready for the next activity.”). (See AR 77).

4

(She stated that during the day she probably

Her daughters and sons help her with household chores.

5

Everybody helps with the cooking of dinner.

6

her supervision and directions) do some cooking, set the

7

table, clean up after dinner (i.e., putting plates in the

8

dishwasher), bring down clothes that need to be washed, and

9

help her with the grocery shopping (she does not have to lift

10

or carry anything).

Her sons (with

(See AR 78-79).

11

With respect to her personal care, she cannot style her

12

hair like she used to (the clips hurt her head and her hair is

13

too heavy and hard to brush).

14

every other day.

15

She is only able to shower

(See AR 79).

After briefly summarizing Plaintiff’s statements in the Disability

16 Report - Adult, and the Disability Report - Appeal, and Plaintiff’s
17 testimony at the February 13, 2013 hearing (see AR 28), the ALJ stated:
18 “After careful consideration of the evidence, the undersigned finds that
19 the claimant’s medically determinable impairments could reasonably be
20
21

expected

to

cause

alleged

symptoms;

however,

the

claimant’s

statements concerning the intensity, persistence and limiting effects of
these symptoms are not entirely credible for the reasons explained in

22 this decision.”
23
24

the

(Id.).

After making a determination of Plaintiff’s RFC based, in part, on

25 a review and consideration of the treating, examining, and reviewing
26

medical

sources

(see

AR

28-30),

credibility as follows:

27
28
9

the

ALJ

addressed

Plaintiff’s

1

One factor affecting the claimant’s credibility is her

2

treatment history. The claimant’s medical records show almost

3

continuous access to treatment based on the medical records in

4

Exhibit 2F, 4F, 6F, 7F and 8F.

In addition, these treatment

notes also show very few actual examinations for her treatment

5

physicians as the bulk of her treatment notes are records of

6

continued prescriptions for her medications.

7

there is a treatment note dated May 24, 2011 (see Exhibit

8

7F/14) and the next treatment note is not dated until December

9

14, 2012 (see Exhibit 8F/3).

10

For example,

The records between those dates

as shown in Exhibits 7F and 8F are all notations of continued
prescriptions for her medications (see Exhibits 7F and 8F).

11

This shows the claimant only needed continued prescriptions

12

for her medications and did not need additional observations

13

from her treating physicians for much of her recent treatment

14

history.

15

This also shows the claimant’s impairments are not

as significant as alleged as she did not require additional
observations or visits with her treating physicians.

Thus,

16

the undersigned finds the claimant’s credibility is affected

17

by her treatment history.

18
19
20
21

Another factor affecting her treatment history is the
notations of other measures that affect her symptoms.

The

treatment note dated December 14, 2012 notes the claimant is
using a Jacuzzi to help her symptoms (Exhibit 8F/3).

This

22

shows the claimant has access to other methods of symptom

23

control and that she is using them to help control her

24

symptoms.

25

significant nature of her symptoms as they are helped by less

26

This

also

negates

her

allegations

invasive and other non-medically related methods.
credibility is affected by this.

27
28
10

about

the

Thus, her

1

Further,

the

claimant’s

work

history

affects

2

credibility.

3

all work activity in 2004 or 2005 (see Exhibit 12D).
then

4

the

The claimant’s earnings record shows she ceased

claimant

earnings.

her

has

posted

no

additional,

Since

countable

This corroborates the claimant’s allegations that

5

she has not been able to work for a number of years.

6

the

7

bolsters her credibility.

undersigned

finds

that

the

claimant’s

work

Thus,
history

8
* * * * *

9
10

. . .

Additionally, the claimant’s statements and

11

allegations about the severity and effect of her impairments

12

cannot be given full weight because, as discussed above, the

13

factors that affect her credibility outweigh the factors that

14

bolster her credibility.

15

(AR 31).

16
17

A

claimant

initially

must

produce

objective

medical

evidence

18 establishing a medical impairment reasonably likely to be the cause of
19 the subjective symptoms. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.
20
21

1996); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991).

Once a

claimant produces objective medical evidence of an underlying impairment
that could reasonably be expected to produce the pain or other symptoms

22 alleged, and there is no evidence of malingering, the ALJ may reject the
23 claimant’s testimony regarding the severity of his pain and symptoms
24 only by articulating specific, clear and convincing reasons for doing
25 so.
26

Brown-Hunter v. Colvin, 798 F.3d 749, 755 (9th Cir. 2015)(citing

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

27

1998); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).

28
11

1 Because the ALJ does not cite to any evidence in the record of
2 malingering, the “clear and convincing” standard stated above applies.
3
4

Here, the ALJ failed to provide clear and convincing reasons for
his finding that Plaintiff’s testimony about the intensity, persistence

5 and limiting effects of the symptoms was not fully credible.5
6
7

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

8 not credible and what evidence undermines [Plaintiff’s] complaints.’”
9
10

Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (quoting Lester v.
Chater, 81 F.3d 821, 834 (9th Cir. 1995)); see also Smolen v. Chater,
supra, 80 F.3d at 1284 (“The ALJ must state specifically what symptom

11 testimony is not credible and what facts in the record lead to that
12 conclusion”).
13
14
15

Second, the ALJ’s discrediting of Plaintiff’s testimony because she
“only needed continued prescriptions for her medications and did not
need additional observations for much of her recent treatment history”

16 was improper. Although, as the ALJ noted, Plaintiff’s treatment records
17 reflect mostly continued prescriptions for medications, rather than
18 additional visits with physicians for her fibromyalgia (see AR 31,
19 citing AR 729-51, 754-60), there is no evidence that Plaintiff failed to
20
21

follow a course of treatment for her fibromayalgia, or that additional
or more intensive treatments were recommended or available to treat her
fibromaylgia.

See

Benecke

v.

Barnhart,

379

F.3d

587,

590

22 (“Fibromyalgia’s cause is unknown, there is no cure, and it is poorly
23 understood within much of the medical community.”); see also Lapeirre24 Gutt v. Astrue, 382 Fed.Appx. 662, 664 (9th Cir. 2010) (“A claimant
25 cannot be discredited for failing to pursue non-conservative treatment
26
27
28

5

The Court will not consider reasons for finding Plaintiff not
fully credible (see Joint Stip. at 20) that were not given by the ALJ in
the Decision. See Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir.
2001); SEC v. Chenery Corp., 332 US 194, 196 (1947).
12

1 options where none exist.”). Moreover, at the hearings, the ALJ did not
2 ask Plaintiff why she did not pursue additional or more intensive
3 treatments for her fibromyalgia.
4

Third, the ALJ’s discrediting of Plaintiff’s testimony because her

5 symptoms apparently improved based on her use of a Jacuzzi (see AR 31,
6 citing AR 754 [Treatment record dated December 14, 2012, noting that
7 “Relieving factors tried including jacuzzi helps”)] was also improper.
8 That treatment record (which was discussing Plaintiff’s neck pain) did
9
10

not state that the use of a Jacuzzi completely alleviated Plaintiff’s
symptoms.

Indeed, that same treatment record (immediately prior to the

notation about Plaintiff’s use of a Jacuzzi) notes: “The problem is

11 severe. The problem has worsened. The frequency of pain is constant.
12 Location of pain is bilateral shoulder. The patient describes the pain
13 as sharp and shooting.” (AR 754). Moreover, other treatment records do
14 not reflect improvement in Plaintiff’s condition.
15

(See e.g., AR 740

[Treatment note dated May 24, 2011, noting that Plaintiff had suffered
a flare up of fibromyalgia]), AR 426-27 [Treatment records dated

16 September 11, 2008, noting that Plaintiff had not gotten any improvement
17 from prior epidurals], and AR 388 [Treatment record dated September 22,
18 2008, noting that Plaintiff’s neck and arm pain persisted after a
19 steroid injection]).
20
21
22

B.

Remand Is Warranted
The decision whether to remand for further proceedings or order an

23 immediate award of benefits is within the district court’s discretion.
24 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no
25 useful purpose would be served by further administrative proceedings, or
26 where the record has been fully developed, it is appropriate to exercise
27

this discretion to direct an immediate award of benefits.

Id. at 1179

(“[T]he decision of whether to remand for further proceedings turns upon

28 the likely utility of such proceedings.”). However, where, as here, the
13

1 circumstances of the case suggest that further administrative review
2 could remedy the Commissioner’s errors, remand is appropriate.

McLeod

3 v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); Harman v. Apfel, supra,
4
5

211 F.3d at 1179-81.
Since the ALJ failed to properly assess Plaintiff’s credibility,

6 remand is appropriate. Because outstanding issues must be resolved
7 before a determination of disability can be made, and “when the record
8 as a whole creates serious doubt as to whether the [Plaintiff] is, in
9
10

fact, disabled within the meaning of the Social Security Act,” further
administrative proceedings would serve a useful purpose and remedy
defects.

Burrell

v.

Colvin,

775

F.3d

1133,

1141

(9th

Cir.

11 2014)(citations omitted).6
12
13

ORDER

14
15
16

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

17
18

LET JUDGMENT BE ENTERED ACCORDINGLY.

19
20 DATED: October 16, 2015.
21

/s/
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

22
23
24
25
26
27
28

6

The Court has not reached any other issue raised by Plaintiff
except insofar as to determine that reversal with a directive for the
immediate payment of benefits would not be appropriate at this time.
“[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,
1021 (2014). Accordingly, the Court declines to rule on Plaintiff’s
claim regarding the ALJ’s alleged failure to properly determine whether
Plaintiff could perform other jobs (see Joint Stip. at 4-13, 16-18).
Because this matter is being remanded for further consideration, this
issue should also be considered on remand.
14