Amelia Richardson v. Carolyn W. Colvin

Filing 23

MEMORANDUM AND ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS by Magistrate Judge Alexander F. MacKinnon. (See document for details). (ib)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11

AMELIA RICHARDSON,

12
13

Case No. SA CV 16-1861 AFM

Plaintiff,

MEMORANDUM AND ORDER
REVERSING DECISION OF
COMMISSIONER AND
REMANDING FOR FURTHER
ADMINISTRATIVE
PROCEEDINGS

v.

14
15
16

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

17
18
19

I.

20

BACKGROUND

21

On September 17, 2012, Plaintiff Amelia Richardson protectively filed her

22

application for a period of disability and disability insurance benefits under Title II

23

of the Social Security Act and supplemental security income under Title XVI of the

24

Social Security Act, alleging disability onset as of August 19, 2011. After denial

25

on initial review and on reconsideration, a hearing took place before an

26

Administrative Law Judge (ALJ) on January 13, 2015. In a written decision dated

27

April 16, 2015, the ALJ found that Plaintiff was not disabled. The Appeals Council

28

declined to set aside the ALJ’s unfavorable decision in a notice dated August 11,

1

2016. Plaintiff filed a Complaint herein on October 10, 2016, seeking review of the

2

Commissioner’s denial of his application for benefits.

3

In accordance with the Court’s Order re Procedures in Social Security

4

Appeal, Plaintiff filed a memorandum in support of his complaint on March 30,

5

2017. The Commissioner filed a memorandum in support of her answer on May 9,

6

2017. This was untimely by approximately 5 days, but the Court in exercise of its

7

discretion will consider the memorandum. Plaintiff filed a reply on May 18, 2017.

8

This matter now is ready for decision. 1
II.

9

DISPUTED ISSUES

10

As reflected in the parties’ memoranda, the disputed issues that Plaintiff

11
12

raises are:
1.

13

Whether the ALJ erred in determining Plaintiff’s severe
impairment at step 2 of the sequential evaluation.

14
15

2.

Whether the ALJ erred in determining Plaintiff’s credibility.

16

3.

Whether the ALJ erred in determining Plaintiff’s residual

17

functional capacity (RFC) and in finding Plaintiff can perform

18

her past relevant work.

19

III.

20

STANDARD OF REVIEW

21

Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to

22

determine whether the Commissioner’s findings are supported by substantial

23

evidence and whether the proper legal standards were applied. See Treichler v.

24

Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial

25

evidence means “more than a mere scintilla” but less than a preponderance. See

26
27
28

The decision in this case is being made based on the pleadings, the
administrative record (“AR”) and the parties’ briefs in support of their pleadings.
1

2

1

Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d

2

1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a

3

reasonable mind might accept as adequate to support a conclusion.” Richardson,

4

402 U.S. at 401. This Court must review the record as a whole, weighing both the

5

evidence that supports and the evidence that detracts from the Commissioner’s

6

conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more

7

than one rational interpretation, the Commissioner’s decision must be upheld. See

8

Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).

9
10

IV.
FIVE-STEP EVALUATION PROCESS

11

The Commissioner (or ALJ) follows a five-step sequential evaluation process

12

in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920;

13

Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995), as amended April 9, 1996.

14

In the first step, the Commissioner must determine whether the claimant is

15

currently engaged in substantial gainful activity; if so, the claimant is not disabled

16

and the claim is denied. Id. If the claimant is not currently engaged in substantial

17

gainful activity, the second step requires the Commissioner to determine whether

18

the claimant has a “severe” impairment or combination of impairments significantly

19

limiting his ability to do basic work activities; if not, a finding of nondisability is

20

made and the claim is denied. Id. If the claimant has a “severe” impairment or

21

combination of impairments, the third step requires the Commissioner to determine

22

whether the impairment or combination of impairments meets or equals an

23

impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. part

24

404, subpart P, appendix 1; if so, disability is conclusively presumed and benefits

25

are awarded. Id. If the claimant’s impairment or combination of impairments does

26

not meet or equal an impairment in the Listing, the fourth step requires the

27

Commissioner to determine whether the claimant has sufficient “residual functional

28

capacity” to perform his past work; if so, the claimant is not disabled and the claim
3

1

is denied. Id. The claimant has the burden of proving that he is unable to perform

2

past relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the

3

claimant meets this burden, a prima facie case of disability is established. Id. The

4

Commissioner then bears the burden of establishing that the claimant is not

5

disabled, because he can perform other substantial gainful work available in the

6

national economy. Id. The determination of this issue comprises the fifth and final

7

step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at

8

828 n.5; Drouin, 966 F.2d at 1257.
V.

9

THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS

10
11

At step one, the ALJ found that Plaintiff met the insured status requirements

12

of the Social Security Act and had not engaged in substantial gainful activity from

13

the alleged onset date through December 31, 2016. (AR 34.) At step two, the ALJ

14

found that Plaintiff had the following severe impairment: degenerative disc disease

15

of the cervical spine. (AR 34-36.) At step three, the ALJ found that Plaintiff did

16

not have an impairment or combination of impairments that meets or medically

17

equals the severity of one of the listed impairments. (AR 36-37.) At step four, the

18

ALJ found that Plaintiff had the RFC to perform the following: “occasionally lift

19

and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk

20

for 6 hours in an 8-hour workday; sit for 6 hours in an 8-hour workday; and

21

occasionally perform all posturals.” (AR 37-42.) Finally, the ALJ concluded that

22

Plaintiff is capable of performing past relevant work as a sales associate/processor

23

and cashier/food clerk. (AR 42.) Accordingly, the ALJ concluded that Plaintiff

24

was not under a disability at any time from August 19, 2011, the alleged onset date,

25

through the date of the ALJ’s decision. (AR 42.)

26

///

27

///

28

///
4

1

VI.

2

DISCUSSION

3

A.

The ALJ’s Step Two Determination (Disputed Issue One)

4

The ALJ found that Plaintiff had a severe impairment of degenerative disc

5

disease of the cervical spine. Plaintiff argues that the ALJ should have found a

6

number of other conditions to be severe impairments. On this issue, the Court

7

agrees with the Commissioner’s position. Because the ALJ found at step two that

8

Plaintiff had a severe impairment, it would be harmless error if the ALJ’s failure to

9

include other conditions as severe impairments were wrong. As long as the other

10

impairments are considered at the subsequent steps, the lack of inclusion at step two

11

(or a non-severe finding at step two for a particular impairment) does not constitute

12

a basis for reversal. See Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008).

13

In the present case, the ALJ did not dispose of Plaintiff’s claim as groundless at

14

step two; rather, she found that Plaintiff had satisfied the severity requirement and

15

proceeded to consider the combination of Plaintiff’s impairments in making the

16

disability determination in the subsequent steps. See Howard ex rel. Wolff v.

17

Barnhart, 341 F.3d 1006, 1010 (9th Cir. 2003).

18

determination did not constitute reversible error.

19

B.

Thus, the ALJ’s step two

The ALJ’s Adverse Credibility Finding (Disputed Issue Two)

20

An ALJ’s assessment of pain severity and claimant credibility is entitled to

21

“great weight.” Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989). Where the

22

claimant has produced objective medical evidence of an impairment which could

23

reasonably be expected to produce some degree of pain and/or other symptoms, and

24

the record is devoid of any affirmative evidence of malingering, the ALJ may reject

25

the claimant’s testimony regarding the severity of the claimant’s pain and/or other

26

symptoms only if the ALJ makes specific findings stating clear and convincing

27

reasons for doing so. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986);

28

see also Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). Here, since the
5

1

Commissioner has not argued that there was evidence of malingering and that a

2

lesser standard consequently should apply, the Court will apply the “clear and

3

convincing” standard to the ALJ’s adverse credibility determination. See Burrell v.

4

Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014) (applying “clear and convincing”

5

standard where the government did not argue that a lesser standard should apply

6

based on evidence of malingering). “The clear and convincing evidence standard is

7

the most demanding required in Social Security cases.” Garrison v. Colvin, 759

8

F. 3d 995, 1015 (9th Cir. 2014).

9

The ALJ’s credibility discussion is found in the final paragraph on AR 40

10

and the two paragraphs on AR 41. In those paragraphs, the ALJ sets forth two

11

reasons: (1) “The claimant has not generally received the type of medical treatment

12

one would expect for a totally disabled individual.” (2) “[T]he claimant’s ability to

13

participate in [daily] activities diminishes the credibility of the claimant’s

14

allegations of functional limitations.” (AR 41.)2

15

With regard to the first reason ─ conservative medical treatment ─ the ALJ

16

states that Plaintiff’s treatment has been “routine and/or conservative in nature” and

17

that use of medication did not suggest impairments beyond those found in the

18

decision. At the time of the administrative hearing, however, Plaintiff testified that

19

she was scheduled to have a surgical assessment by an orthopedic surgeon. (AR

20

58.) On March 31, 2015, Plaintiff underwent a cervical discectomy at C5-6 and

21

cervical fusion at the same level. This predated the ALJ’s decision, but the relevant

22

records were not submitted until the Appeals Council review. Although submitted

23

for the first time to the Appeals Council, these records must be considered by the

24

Court as part of the administrative record in determining whether the

25

Commissioner’s decision is supported by substantial evidence.

See Brewes v.

26

As discussed below, although the Commissioner asserts that the ALJ provided
four additional reasons, the Court is limited to considering grounds actually set out
in the decision as bases for the credibility determination.

2

27
28

6

1

Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1159-60 (9th Cir. 2012).3 In this case,

2

consideration of the evidence of Plaintiff’s March 2015 cervical spine surgery

3

necessarily leads to the conclusion that her treatment has not been limited to

4

medication and has not been conservative. The ALJ’s finding to the contrary is not

5

supported by substantial evidence when the surgical records at AR 693-95 are taken

6

into account. The ALJ also referred to “gaps” in Plaintiff’s treatment history, but

7

did not offer any specifics.

8

Mississippi and had to get a new doctor after the move. (AR 72-76.) Although that

9

may have caused a gap in treatment, the ALJ did not discuss Plaintiff’s move, and

Plaintiff testified that she had relocated from

10

that move provides a reasonable explanation of a gap in treatment.

In these

11

circumstances, the ALJ’s vague reference to a gap in treatment does not constitute

12

the clear and convincing evidence required to discount the credibility of Plaintiff’s

13

symptom testimony. Accordingly, the Court concludes that the ALJ’s assessment

14

of the type and timing of Plaintiff’s medical treatment does not constitute a valid

15

basis for her adverse credibility determination.4

16

As to the second reason ─ Plaintiff’s daily activities ─ the ALJ’s decision

17

sets out a list of activities that Plaintiff can perform: “personal care, food

18

preparation, shopping, cleaning, sweeping, mopping, dusting, making beds,

19

dishwashing, laundry, reading, keeping up with the news, driving, watching

20

television, reading the Bible, going to the laundromat, grocery shopping, walking,

21

taking the bus, going out to eat, going to the beach, feeding the birds, attending

22

church, socializing with acquaintances and family, and using the telephone.” (AR

23
24
25
26

“[W]hen the Appeals Council considers new evidence in deciding whether to
review a decision of the ALJ, that evidence becomes part of the administrative
record, which the district court must consider when reviewing the Commissioner’s
final decision for substantial evidence.” 682 F.3d at 1163.

3

4

27
28

Although the Commissioner’s memorandum includes a discussion of Plaintiff’s
treatment (Def. Mem. at 6), it does not address the March 2015 surgical records and
does not offer further specifics regarding the alleged gaps in treatment.
7

1

41.) The decision then states that “[s]ome of the physical and mental abilities and

2

social interactions required in order to perform these activities are the same as those

3

necessary for obtaining and maintaining employment.” There are two problems

4

with this assessment of daily activities. First, given the broad manner in which the

5

alleged activities are identified, the decision does not fairly state the extent to which

6

Plaintiff can engage in these activities.

7

Plaintiff does “walking,” but the record cited in the decision states that Plaintiff can

8

walk only 45-50 feet and can stand only for 2 minutes. (AR 392.) Similarly, the

9

decision states that Plaintiff can take a bus and can drive. Yet the record reflects

10

For example, the decision states that

that Plaintiff can sit for only 5 to 10 minutes, and she does not drive. (Id.)

11

The ambiguities and omissions in the decision’s list of Plaintiff’s daily

12

activities are compounded when the ALJ then states that “some” of the abilities

13

necessary to perform these activities are same as those used in getting and

14

maintaining employment. But that statement begs the key questions: what abilities

15

and what types of employment.

16

activities is not specific and is insufficient as a basis for the adverse credibility

17

finding: A “reviewing court should not be forced to speculate as to the grounds for

18

an adjudicator’s rejection of a claimant’s allegations of disabling pain.” Bunnell v.

19

Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (en banc); see also Brown-Hunter v.

20

Colvin, 806 F.3d 487, 493-94 (9th Cir. 2015) (ALJ’s failure to link claimant’s

21

testimony to particular parts of the record is insufficient support for adverse

22

credibility finding); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993) (“It’s not

23

sufficient for the ALJ to make only general findings; he must state which pain

24

testimony is not credible and what evidence suggests the complaints are not

25

credible.”).

Accordingly, the ALJ’s finding about daily

26

Finally, the Commissioner’s attempt to add other grounds to support the ALJ

27

credibility determination fails. For each of these purported reasons ─ a function

28

report by Plaintiff’s husband, the ALJ’s observation of Plaintiff at the hearing, and
8

1

Plaintiff’s voluntarily stopping work ─ the Commissioner cites to statements in the

2

decision from pages AR 36 and 37. As reflected by their placement and context in

3

the decision, these statements were not made in connection with the adverse

4

credibility finding ─ which took place at AR 40-41. Under the law in this Circuit,

5

the Court is not permitted to comb through the decision looking for other facts and

6

reasoning that could be (but were not) applied to support the credibility

7

determination:

8

review the ALJ’s decision based on the reasoning and factual findings offered by

9

the ALJ ─ not post hoc rationalizations . . . .” Bray v. Comm’r of Soc. Sec. Admin,

10

554 F.3d 1219, 1225 (9th Cir. 2009). Moreover, the Commissioner urges that

11

Plaintiff’s symptom testimony was inconsistent with unsupported by the objective

12

medical evidence. Again, this was not part of the ALJ’s stated reasons, but even if

13

it were, it could not be the sole basis for discounting credibility when the other

14

reasons were legally sufficient. See Robbins v. Social Sec. Admin., 466 F.3d 880,

15

884 (9th Cir. 2006) (where ALJ’s initial reason for adverse credibility

16

determination was legally insufficient, his sole remaining reason premised on lack

17

of medical support for claimant’s testimony was legally insufficient); Light v.

18

Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (“[A] finding that the

19

claimant lacks credibility cannot be premised wholly on a lack of medical support

20

for the severity of his pain.”).5

“Long-standing principles of administrative law require us to

21

VII.

22

DECISION TO REMAND

23

The law is well established that the decision whether to remand for further

24

proceedings or simply to award benefits is within the discretion of the Court. See,

25

e.g., Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan,

26

Given the determination that the ALJ erred in the adverse credibility finding and
that the case should be remanded on that basis, the third disputed issue need not be
addressed here.

5

27
28

9

1

888 F.2d 599, 603 (9th Cir. 1989); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir.

2

1981). Before a case may be remanded for an immediate award of benefits, three

3

requirements must be met: “(1) the record has been fully developed and further

4

administrative proceedings would serve no useful purpose; (2) the ALJ has failed to

5

provide legally sufficient reasons for rejecting evidence, whether claimant

6

testimony or medical opinion; and (3) if the improperly discredited evidence were

7

credited as true, the ALJ would be required to find the claimant disabled on

8

remand.” Garrison, 759 F.3d at 1020; see also Brown-Hunter, 806 F.3d at 495. If

9

the record is “uncertain and ambiguous, the proper approach is to remand the case

10

to the agency” for further proceedings. See Treichler, 775 F.3d at 1105. Here,

11

further proceedings would be useful to resolve conflicts and ambiguities in the

12

record. Id. at 1103-04 (in evaluating whether further administrative proceedings

13

would be useful, the reviewing court should consider “whether the record as a

14

whole is free from conflicts, ambiguities, or gaps, whether all factual issues have

15

been resolved, and whether the claimant’s entitlement to benefits is clear under the

16

applicable legal rules”); Burrell, 775 F.3d at 1141-42. Plaintiff has not shown that

17

this case presents the rare circumstances that would warrant an immediate award of

18

benefits.

19

*

20

*

*

*

21

IT THEREFORE IS ORDERED that Judgment be entered reversing the

22

decision of the Commissioner of Social Security and remanding this matter for

23

further administrative proceedings consistent with this Order.

24
25

DATED: July 28, 2017

26
27
28

____________________________________
ALEXANDER F. MacKINNON
UNITED STATES MAGISTRATE JUDGE
10