Contreras v. Commissioner of Social Security

Filing 20

ORDER REMANDING the Action Pursuant to Sentence Four of 42 U.S.C. § 405(g); ORDER DIRECTING Entry of Judgment in Favor of Plaintiff Johnny Contreras and Against Defendant Carolyn W. Colvin, Acting Commissioner of Social Security, signed by Magistrate Judge Jennifer L. Thurston on 2/27/15. (CASE CLOSED)(Hellings, J)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

JOHNNY CONTRERAS,

12
13
14
15
16

Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No.: 1:13-cv-01237 - JLT
ORDER REMANDING THE ACTION PURSUANT
TO SENTENCE FOUR OF 42 U.S.C. § 405(g)
ORDER DIRECTING ENTRY OF JUDGMENT IN
FAVOR OF PLAINTIFF JOHNNY CONTRERAS
AND AGAINST DEFENDANT CAROLYN W.
COLVIN, ACTING COMMISSIONER OF SOCIAL
SECURITY

17
18

Plaintiff Johnny Contreras asserts he is entitled to benefits under Title II of the Social Security

19

Act. Plaintiff argues the administrative law judge (“ALJ”) erred in evaluating the evidence and seeks

20

judicial review of the decision to deny his application for benefits pursuant to 42 U.S.C. § 405(g).

21

Because the ALJ failed to set forth legally sufficient reasons for rejecting the credibility of Plaintiff’s

22

subjective complaints, as explained below, the action is REMANDED for further proceedings.

23
24

BACKGROUND
Plaintiff filed his application for benefits on July 16, 2010, alleging he became disabled on May

25

20, 2010. (Doc. 9-3 at 10.) The Social Security Administration denied his application initially and

26

upon reconsideration. (Doc. 9-4 at 2-6.) After requesting a hearing, Plaintiff testified before the ALJ.

27

(Doc. 9-3 at 38.) The ALJ determined Plaintiff was not disabled and issued an order denying benefits.

28

(Doc. 9-3 at 14-25.) The Appeals Council denied plaintiff’s request for review of the decision. (Id. at
1

1

2-4.) Thus, the ALJ’s determination became the final decision of the Commissioner of Social Security

2

(“Commissioner”).

3
4

STANDARD OF REVIEW
District courts have a limited scope of judicial review for disability claims after a decision by

5

the Commissioner to deny benefits under the Social Security Act. When reviewing findings of fact,

6

such as whether a claimant was disabled, the Court must determine whether the Commissioner’s

7

decision is supported by substantial evidence or is based on legal error. 42 U.S.C. § 405(g). The

8

Court must uphold the ALJ’s determination that the claimant is not disabled if the proper legal

9

standards were applied and the findings are supported by substantial evidence. See Sanchez v. Sec’y of

10
11

Health & Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).
Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a

12

reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.

13

389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938)). The record as a whole

14

must be considered, because “[t]he court must consider both evidence that supports and evidence that

15

detracts from the ALJ’s conclusion.” Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).

16
17

DISABILITY BENEFITS
To qualify for benefits under the Social Security Act, Plaintiff must establish he is unable to

18

engage in substantial gainful activity due to a medically determinable physical or mental impairment

19

that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C.

20

§ 1382c(a)(3)(A). An individual shall be considered to have a disability only if:

21
22
23

his physical or mental impairment or impairments are of such severity that he is not
only unable to do his previous work, but cannot, considering his age, education, and
work experience, engage in any other kind of substantial gainful work which exists in
the national economy, regardless of whether such work exists in the immediate area in
which he lives, or whether a specific job vacancy exists for him, or whether he would
be hired if he applied for work.

24
25

42 U.S.C. § 1382c(a)(3)(B). The burden of proof is on a claimant to establish disability. Terry v.

26

Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). If a claimant establishes a prima facie case of disability,

27

the burden shifts to the Commissioner to prove the claimant is able to engage in other substantial

28

gainful employment. Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984).
2

ADMINISTRATIVE DETERMINATION

1

To achieve uniform decisions, the Commissioner established a sequential five-step process for

2
3

evaluating a claimant’s alleged disability. 20 C.F.R. §§ 404.1520, 416.920 (a)-(f). The process requires

4

the ALJ to determine whether Plaintiff (1) engaged in substantial gainful activity during the period of

5

alleged disability, (2) had medically determinable severe impairments (3) that met or equaled one of the

6

listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1; and whether Plaintiff (4) had

7

the residual functional capacity to perform past relevant work or (5) the ability to perform other work

8

existing in significant numbers at the state and national level. Id. The ALJ must consider testimonial

9

and objective medical evidence. 20 C.F.R. §§ 404.1527, 416.927, 416.929.

10
11

A.

Medical Evidence
On March 4, 2007, Plaintiff visited an urgent care center, complaining of chest pain. (Doc. 9-8

12

at 3.) Following an EKG, Plaintiff “was transferred to the emergency room” at Bakersfield Memorial

13

Hospital, where Plaintiff was diagnosed with an “acute inferior wall myocardial infarction.” (Id.) In

14

addition, Plaintiff was diagnosed with sleep apnea and “marked bradycardia with a heart rate in the 30s

15

on a recurrent basis.” (Id. at 15.) Plaintiff was then taken to the cardiac catheterization lab, where Dr.

16

Kirit Desai performed an “[e]mergency left heart catheterization,” a “[c]omplex multiple stent

17

angioplasty of right coronary artery,” and implanted a transvenous pacemaker. (Id. at 4-7.) Plaintiff

18

was discharged from the hospital on March 8, 2007. (Id. at 12.)

19

Follow-up notes indicate that Plaintiff “had permanent pacemaker implantation,” and denied

20

having “any symptoms.” (Doc. 9-8 at 18.) In April 2007, Plaintiff reported he was dieting and

21

“walking almost two to three miles every day and feeling good.” (Id.) Plaintiff stated that he wanted to

22

return to work. (Id.) Dr. Desai informed Plaintiff that he could return to work on April 30, 2007,

23

“without any restriction.” (Id.)

24

In October 2007, Plaintiff had a six-month follow visit with Dr. Desai. (Doc. 9-8 at 21.)

25

Plaintiff reported he was “feeling okay” and was walking “almost 14 miles a week.” (Id.) Dr. Desai

26

noted that the most recent analysis showed the pacemaker was functioning well. (Id.)

27
28

At the next visit in April 2008, Dr. Desai noted that Plaintiff reported “having a lot of pain in
his back,” “tingling and numbness in both the hands,” and “pain in his left leg.” (Doc. 9-8 at 23.)
3

1

Plaintiff continued to have visits with Dr. Desai approximately every six to nine months to check on the

2

pacemaker and undergo a physical examination. (See, e.g, Doc. 9-8 at 23, 25.)

3
4
5
6
7
8

In December 2009, Plaintiff reported he had “difficulty with doing his work1 which was making
him weak and dizzy and also at times he was having chest pains.” (Doc. 9-8 at 31.) Dr. Desai noted:
The patient indicates that he is unable to operate a chain saw. Since John has a pacemaker
he cannot operate it as it causes electromagnetic charge which might affect his pacemaker.
Also the patient is unable to operate wheel loaders. While riding and operating [a] heavy
loader, there is constant rocking and bouncing of the loader which causes . . . jarring of
John’s body with pacemaker causing him chest pain. The patient’s job also requires
weight lifting up to 50 pounds or greater, as he has to lift asphalt bags into the trucks and
lifting drain box lids while performing maintenance drainage duties. During this it causes
him to have chest pains and causes strain at the pacemaker site.

9
10

(Id.) Dr. Desai advised Plaintiff “to apply for permanent disability” because he was “unable to do the

11

job he was hired to do.” (Id. at 32.) However, Plaintiff continued to work. (See Doc. 9-8 at 35.)

12

On May 18, 2010, Plaintiff reported to the emergency room at Bakersfield Memorial Hospital.

13

(Doc. 9-9 at 33.) Plaintiff explained that he lifted 350 pounds of material at work, after which he had

14

chest pain and became diaphoretic. (Doc. 9-8 at 35; Doc. 9-9 at 33.) Plaintiff had an EKG with

15

“essentially negative” results, and the physician opined that it appeared Plaintiff suffered “a pulled

16

pectoral muscle/costochondritis.” (Doc. 9-9 at 41.) At a follow-up visit on May 21, 2010, Dr. Desai

17

again advised Plaintiff “to apply for disability” and told him “to obtain forms from [the] Social Security

18

Office” to be completed by Dr. Desai. (Doc. 9-8 at 36.)

19

In July 2010, Dr. Desai noted Plaintiff reported “feeling okay,” and had not applied for Social

20

Security. (Doc. 9-8 at 37.) Plaintiff said “his supervisor had advised him that he should apply for

21

work-related disability.” (Id.) Dr. Desai explained Plaintiff’s work “require[d] heavy exertional work

22

in hot weather,” which could “cause electrical or muscular interference on his pacemaker leads.” (Id.)

23

Given Plaintiff’s coronary artery disease and pacemaker, Dr. Desai again “advised [Plaintiff] to apply

24

for permanent disability.” (Id.)

25
26

Dr. Desai completed a physical residual functional capacity questionnaire on October 6, 2010.
(Doc. 9-9 at 53-56.) He noted that Plaintiff had atherosclerotic heart disease, with a guarded prognosis.

27
28

1

Plaintiff’s job was as a road maintenance worker. (Doc. 9-8 at 31)

4

1

(Id. at 53.) Plaintiff’s chest pain could be “aggravated by lifting objects,” and the “heart medications

2

cause[d] fatigue” (Id.) Dr. Desai acknowledged there were no clinical findings or objective signs

3

related to Plaintiff’s impairment. (Id.) Dr. Desai believed Plaintiff was “[c]apable of low stress jobs,”

4

but opined pain would frequently interfere with Plaintiff’s ability to sustain the attention and

5

concentration required for even simple work. (Id. at 54.) According to Dr. Desai, Plaintiff was able to

6

sit two hours at one time, stand for 30 minutes at one time, and required unscheduled breaks during an

7

eight-hour day. (Id. at 54-55.) Dr. Desai believed Plaintiff could lift and carry less than ten pounds

8

frequently, rarely lift and carry 20 pounds, and never lift 50 pounds; occasionally twist and stoop; and

9

never climb ladders or stairs. (Id. at 55.) Also, Dr. Desai opined Plaintiff needed “to avoid extreme

10
11

temperature, dust, fumes, [and] gases.” (Id. at 56.)
Dr. Paul Frye completed a physical residual functional capacity assessment and case analysis on

12

October 21, 2010. (Doc. 9-9 at 57-63.) Dr. Frye noted Plaintiff had coronary artery disease, and had a

13

pacemaker and stent implanted. (Id. at 57.) He believed Plaintiff was able to lift and carry 10 pounds

14

frequently and 20 pounds occasionally, stand and/or walk about six hours in an eight-hour day, and sit

15

about six hours in an eight-hour day. (Id. at 58.) Dr. Frye found that Plaintiff could climb ramps and

16

stairs frequently; but he could only occasionally climb ladders, ropes, or scaffolds. (Id. at 59.) Further,

17

Dr. Frye believed Plaintiff should avoid concentrated exposure to extreme cold and heat, fumes, odors,

18

dusts, gases, machinery, and vibrations. (Id. at 60.) According to Dr. Frye, the limitations assessed by

19

Dr. Desai were based on Plaintiff’s “current status, not projected,” and were “overly restrictive

20

considering minimal physical findings.” (Id. at 61.) Dr. Frye believed Plaintiff “should be capable of

21

full light [work]” by May 2011. (Id. at 63.)

22

On November 1, 2010, Plaintiff reported “having symptoms of light-headedness and dizziness

23

but denie[d] any syncopal spell.” (Doc. 9-9 at 65.) Dr. Desai recommended that Plaintiff “extend his

24

disability for another six months and . . . apply for permanent disability.” (Id.)

25

Dr. John Fahlberg completed a physical residual functional capacity assessment on March 11,

26

2011. (Doc. 9-9 at 88-95.) Dr. Fahlberg believed Plaintiff had stable coronary artery disease, and was

27

currently able to lift and carry 10 pounds frequently and 20 pounds occasionally. (Id. at 88-89.) He

28

opined Plaintiff was able to sit, stand, and/or walk about six hours in an eight-hour day; frequently
5

1

balance, stoop, kneel, crouch and crawl; and occasionally climb ladders, ropes, and scaffolds. (Id. at

2

89-90.) According to Dr. Fahlberg, Plaintiff was required to avoid concentrated exposure to vibration

3

and hazards, but could have “unlimited” exposure to extreme cold, extreme heat, fumes, odors, gases,

4

and dust. (Id. at 91.) Dr. Fahlberg explained that Plaintiff did not have atypical chest pain, and his

5

stress test results were normal. (Id. at 89.) Dr. Fahlberg believed the medical record made it “clear”

6

that Plaintiff had “[a] mild stable cardio condition and [was] limited from heavy work.” (Id. at 94.)

7

On April 22, 2011, Plaintiff reported “persistent symptoms of light-headedness and dizziness

8

and intermittent chest pain.” (Doc. 9-10 at 6.) Dr. Desai ordered a Persantine thallium scan and

9

echocardiographic examination, which yielded normal results.2 (Id. at 4, 6.) In June 2011, Dr. Desai

10
11

advised Plaintiff to “continue[] medical management.” (Id. at 4.)
Dr. Desai completed a “Cardiac Residual Functional Capacity Questionnaire” on July 7, 2011.

12

(Doc. 9-9 at 96-99.) Dr. Desai again indicated Plaintiff had atherosclerotic heart disease, and the

13

diagnosis was supported by a “myocardial infarction, pacemaker implant, [and] stent implant.” (Id. at

14

96.) Dr. Desai noted Plaintiff’s symptoms included shortness of breath, fatigue, weakness, dizziness,

15

and sweatiness. (Id.) Dr. Desai believed Plaintiff was no longer capable of low stress jobs, because his

16

“[e]pidsodes of symptoms . . . have been stress related.” (Id. at 97.) Dr. Desai believed Plaintiff was

17

able to walk 2-3 blocks without severe pain; sit one hour at a time; stand for 30 minute at a time; and

18

lift and carry less than 10 pounds occasionally, 10 pounds occasionally, and never 20 or more pounds.

19

(Id. at 98.) Dr. Desai opined Plaintiff would require unscheduled breaks “possibl[y] several times a

20

day,” depending on his symptoms. (Id.) Further, Dr. Desai indicated Plaintiff needed to “avoid even

21

moderate exposure” to extreme cold, extreme heat, and wetness; and should “avoid all exposure” to

22

fumes, odors, dust, gases, and hazards. (Id. at 99.) According to Dr. Desai, Plaintiff’s condition was

23

stable, but “no improvement [was] expected.” (Id. at 98.)

24
25

In August 2011, Dr. Desai advised Plaintiff “to continue current medical management.” (Doc.
9-10 at 3.)

26
2

27
28

At the administrative hearing, Dr. John Morse explained that the ejection fraction of 65 to 70 percent showed that
“in spite of [the] previous heart attack in 2007, his heart function [was] normal.” (Doc. 9-3 at 55.) Dr. Morse explained that
Plaintiff had well-preserved left ventricular function, and there was “no evidence of congestive heart failure.” (Id.) In
addition, the negative Persantine test indicated there was “not any evidence of residual or ongoing ischemia which means
blockages or insufficiency of blood supply.” (Id.)

6

1

B.

Administrative Hearing
Plaintiff’s Testimony

2

1.

3

Plaintiff testified that he suffered from a history of heart disease and chest pain, shortness of

4

breath, pain in his lower back, lightheadedness, and difficultly sleeping and concentration. (See Doc. 9-

5

3 at 43-44, 47-49.) Plaintiff reported he stopped working around May 2010 because he “was picking

6

up stuff that was too heavy doing labor work.” (Id. at 51.) He said he helped another person pick up a

7

vibrator plate that “weighed about 300 pounds,” and it caused him to have chest pains. (Id.) Plaintiff

8

reported that after Plaintiff’s chest pain, Dr. Desai “pulled [him] off of work.” (Id. at 52.)

9

Plaintiff testified that he lived by himself, and was able to prepare his own meals such as soup

10

and sandwiches. (Doc. 9-3 at 41.) He said he went to the grocery store, but “usually” had someone

11

with him to “help . . . with the heavier items,” including a gallon of milk or water. (Id. at 41-43.) He

12

explained that lifting items could cause chest pain. (Id. at 43.) In addition, Plaintiff said he had chest

13

pain when he woke up in the morning sometimes. (Id.)

14

He reported that he was able to walk “about a block, block-and-a-half” before he felt shortness

15

of breath, started sweating, and cramps in his legs. (Doc. 9-3 at 44.) He said he had problems with his

16

lower back, and was able to sit in a chair for about “10, 15 minutes” before he needed to move around.

17

(Id. at 45.) Plaintiff testified that his niece sometimes took him to church, but he was not able to stay

18

through the whole service, and would “usually leave before it’s over.” (Id. at 46.)

19

According to Plaintiff, he “lay around the house a lot” and slept during the day. (Doc. 9-3 at

20

47.) He explained that at night, he had problems sleeping and was unable to use a sleep machine. (Id.

21

at 47, 65.) As a result, Plaintiff said he would like down for “[t]wenty or thirty minutes” at a time,

22

“about four times a day.” (Id. at 48.) He said he felt “lightheaded [and] tired” nearly every day, even

23

if he tried to make his bed. (Id. at 49, 52.) Plaintiff testified that he reported his trouble sleeping to his

24

physician, who did not want to prescribe more medication. (Id. at 49.)
Medical Expert’s Testimony

25

2.

26

Dr. John Morse, a cardiologist, reviewed Plaintiff’s medical record prior to testifying at the

27

administrative hearing. (Doc. 9-3 at 54, 60.) Dr. Morse explained that Plaintiff’s physical examinations

28

showed there was “[n]o evidence of congestive heart failure.” (Id. at 56.) Based upon his review of the
7

1

medical record, Dr. Morse opined Plaintiff had “a medically determinable illness mainly coronary

2

artery disease [secondary] to an inferior myocardial infraction [sic] in 2007 which was interrupted by

3

angioplasty with placement of a stint in the involved artery.” (Id.) Dr. Morse found “no specific

4

orthopedic data to support problems with his ankles, legs, [and] back.” (Id. at 57.)

5

Dr. Morse believed the limitations assessed by Dr. Desai were “absolutely unsupported by the

6

medical record.” (Doc. 9-3 at 59.) Dr. Morse explained there was “no evidence of cardiac chest pain,”

7

and Plaintiff’s “left-sided chest pain could be muscular skeletal, it could be anything.” (Id.) According

8

to Dr. Morse, Plaintiff could perform light work, which “would translate to lifting 20 pounds on an

9

occasional basis, 10 pounds frequently.” (Doc. 9-3 at 58.) Dr. Morse stated:

14

[Plaintiff] should be able to stand and walk for six hours out of an eight-hour day. Sit for
six hours out of an eight-hour day. And there’d be no additional push/pull limitations. A
possibility he would be limited to frequent ramps and stairs. I don’t have any specific
contraindication to ladders, ropes or scaffolds. … He’d be limited to frequent balancing,
stooping, kneeling, crouching, and crawling. There are no manipulative visual or
communicative limitations. Environmentally I would probably limit him to avoid
concentrated exposure to hazards, machinery, heights, et cetera. And I don’t have any
specific limitations to vibration so the only environmental limitations would be the
hazard, hazardous machinery.

15

(Id.) In addition, Dr. Morse believed there was nothing to indicate that Plaintiff was required to elevate

16

his legs during the day. (Id. at 59.)

10
11
12
13

17

He testified that Plaintiff’s “cardiac medications should be well tolerated.” (Doc. 9-3 at 67.)

18

Dr. Morse explained “the cardiac medications [are] mainly beta blockers and ace inhibitors and things

19

of that sort.” (Id.) However, if Plaintiff was taking pain medicine or antipsychotics—which Dr. Morse

20

did not know—the medicine “may have sedating affects.” (Id. at 67-68.)
Vocational Expert’s Testimony

21

3.

22

Linda Ferra, vocational expert (“VE”), characterized Plaintiff’s past relevant work as a

23

highway maintenance worker, which required medium exertion under the Dictionary of Occupational

24

Titles3, but “was heavy as performed.” (Doc. 9-3 at 75.) The VE determined Plaintiff’s prior jobs as a

25

dump truck driver and hand packager also required medium exertion. (Id.)

26
27
28

3

The Dictionary of Occupational Titles (“DOT”) by the United States Dept. of Labor, Employment & Training
Admin., may be relied upon “in evaluating whether the claimant is able to perform work in the national economy. Terry v.
Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990). The DOT classifies jobs by their exertional and skill requirements, and may
be a primary source of information for the ALJ or Commissioner. 20 C.F.R. § 404.1566(d)(1).
8

The ALJ asked the VE to consider a hypothetical individual who could “lift or carry

1
2

occasionally 20 pounds, frequently zero to nine;” “[s]tand or walk less than two hours of an eight-hour

3

workday;” and “[s]it less than two hours in an eight-hour workday, no more than two hours

4

continuously.” (Doc. 9-3 at 76-77.) The hypothetical worker “require[d] a sit/stand option” and “the

5

ability to walk for ten minutes at a time every 45 minutes.” (Id. at 77.) Further, the worker could

6

occasionally twist, stoop, and crouch; never climb; and needed to avoid concentrated exposure to

7

extreme temperatures, dust, gases, or fumes. (Id.) The VE opined that such a person was not able to

8

perform Plaintiff’s past relevant work. (Id.) At the very best, the hypothetical person could perform

9

sedentary work. (Id. at 48.)
Next the VE considered an individual who was able to “lift or carry 20 pounds, frequently 10;”

10
11

“[s]tand or walk about six hours of an eight-hour workday;” “[s]it about six hours of an eight-hour

12

workday;” occasionally climb ladders; and frequently climb stairs, balance, stoop, crawl, crouch, and

13

kneel. (Doc. 9-3 at 78.) In addition, the hypothetical worker was required to “[a]void concentrated

14

exposure to extremes of heat or cold, vibration, fumes, odors, dust, gases, or poor ventilation,” as well

15

as “hazardous work environments.” (Id.) The VE believed such a person could not perform Plaintiff’s

16

past relevant work. (Id.) However, the VE opined such a person could perform light and unskilled

17

work such as assembler, DOT 712.787-010; packing line worker, DOT 753.687-038; and cashier, DOT

18

211.462-010. (Id. at 79-80.) With the additional limitation of “only work[ing] no more than four

19

hours of standing or walking and four hours of sitting,” the VE stated the individual would be limited

20

to sedentary work. (Doc. 9-3 at 80.)

21

C.

22

The ALJ’s Findings
Pursuant to the five-step process, the ALJ determined Plaintiff did not engage in substantial

23

gainful activity after the alleged onset date of May 20, 2010. (Doc. 9-3 at 19.) At step two, the ALJ

24

found Plaintiff’s severe impairments included: coronary artery disease, degenerative disc disease, sleep

25

apnea, and hypertension. (Id.) At step three, the ALJ determined Plaintiff did not have an impairment,

26

or combination of impairments, that met or medically equaled a Listing. (Id. at 20.) Next, the ALJ

27

determined Plaintiff had “the residual functional capacity to perform light work as defined by 20 CFR

28

404.1567(b) except occasionally climb ladders; frequently climb stairs, balance, stoop, crawl, and
9

1

kneel; avoid constant exposure to heat and cold; avoid vibration, fumes, odors, gases, poor ventilation,

2

and hazardous environment.” (Id. at 20.) Based upon this residual functional capacity, the ALJ

3

concluded “there are jobs that exist in significant numbers in the national economy that the [plaintiff]

4

can perform.” (Id. at 24.) Consequently, the ALJ found Plaintiff was not disabled as defined by the

5

Social Security Act. (Id. at 25.)
DISCUSSION AND ANALYSIS

6

Plaintiff asserts the ALJ failed to give specific and legitimate reasons for rejecting the opinions

7
8

of his treating physician and failed to give legally sufficient reasons for finding Plaintiff was not fully

9

credible. (Doc. 15 at 5-12). On the other hand, Defendant argues that “the ALJ’s weighing of the

10

medical evidence is backed by substantial evidence,” and the credibility determination was proper.

11

(Doc. 19 at 20.)

12

A.

13

The ALJ’s evaluation of the medical evidence
In this circuit, cases distinguish the opinions of three categories of physicians: (1) treating

14

physicians; (2) examining physicians, who examine but do not treat the claimant; and (3) non-

15

examining physicians, who neither examine nor treat the claimant. Lester v. Chater, 81 F.3d 821, 830

16

(9th Cir. 1996). Generally, the opinion of a treating physician is afforded the greatest weight in

17

disability cases, but it is not binding on an ALJ in determining the existence of an impairment or on

18

the ultimate issue of a disability. Id.; see also 20 C.F.R. § 404.1527(d)(2); Magallanes v. Bowen, 881

19

F.2d 747, 751 (9th Cir. 1989). Also, an examining physician’s opinion is given more weight than the

20

opinion of a non-examining physician. 20 C.F.R. § 404.1527(d)(2). Thus, the courts apply a hierarchy

21

to the opinions offered by physicians.

22

A treating physician’s opinion is not binding upon the ALJ, and may be rejected whether or not

23

the opinion is contradicted by another. Magallanes, 881 F.2d at 751. When the opinion of a treating

24

physician is not contradicted, an ALJ must set forth “clear and convincing” reasons to reject the

25

opinion. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). An ALJ may reject the contradicted

26

opinion of a physician with “specific and legitimate” reasons. Lester, 81 F.3d at 830; see also Thomas

27

v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002).

28

If there is conflicting medical evidence, “it is the ALJ’s role to determine credibility and to
10

1

resolve the conflict.” Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). The Court must uphold the

2

ALJ’s resolution of the conflict when there is “more than one rational interpretation” of the evidence.

3

Id.; Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (“The trier of fact and not the reviewing

4

court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court

5

may not substitute its judgment for that of the ALJ”).

6

Here, the ALJ noted he gave “little weight” to the opinions of Dr. Desai dated October 6, 2010

7

“because they are not consistent with the medical record and progress notes at Exhibit 13F.”4 (Doc. 9-3

8

at 23.) Similarly, the ALJ gave “little weight” to the opinion offered by Dr. Desai on July 7, 2011

9

“because it is not consistent with [the] prior description of limitations, medical records, and progress

10

notes at Exhibit 13F.” (Id.) Because Drs. Frye, Fahlberg, and Morse contradicted these opinions, the

11

ALJ was required to identify specific and legitimate reasons for rejecting the opinions. See Lester, 81

12

F.3d at 830. Plaintiff argues the ALJ failed to meet this burden. (Doc. 15 at 5-9.)

13

The Ninth Circuit has determined an ALJ may reject a medical opinion when it is inconsistent

14

with the overall record. Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999);

15

see also Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2003) (an ALJ may

16

reject a physician’s opinion when it is “unsupported by the record as a whole”). To reject an opinion as

17

inconsistent with the medical record, the “ALJ must do more than offer his conclusions.” Embrey v.

18

Bowen, 849 F.2d 418, 421 (9th Cir. 1988). The ALJ has a burden to “set[] out a detailed and thorough

19

summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making

20

findings.” Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1983) (emphasis added). Here, the ALJ has

21

not explained how the opinions of Dr. Desai are inconsistent with the medical record and the progress

22

notes. Rather, the ALJ has offered only his conclusions that the medical record contradicted the

23

opinions. Therefore, the purported conflict with the medical record is not a specific, legitimate reason

24

for rejecting the opinions of Dr. Desai.

25
26

Defendant argues the ALJ’s analysis of the opinions was proper because Dr. Desai offered
findings “inconsistent with … Dr. Desai’s own treating records;” the opinions lacked the support of

27
4

28

Exhibit 13F includes Hewitt Medical Group progress notes dated September 10, 2010 to July 8, 2011. (See Doc.
9-9 at 100-109.)

11

1

objective medical findings; Dr. Desai acted as an advocate for Plaintiff to apply for Social Security;

2

and Dr. Desai offered his opinions “[o]n a check-the box form.” (See Doc. 19 at 14-17.) Each of

3

these reasons may be a specific, legitimate reason for giving less weight to the opinion of a treating

4

physician. See, e.g., See, e.g., Burkhart v. Bowen, 856 F.2d 1335, 1339-40 (9th Cir.1988) (an ALJ

5

may reject an opinion that is unsupported by medical findings); Bayliss v. Barnhart, 427 F.3d 1211,

6

1216 (9th Cir. 2005) (ALJ permissibly rejected treating physician’s opinion containing contradictory

7

observations); Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992) (ALJ may reject medical

8

opinion where doctor acts as an advocate in claimant's pursuit of benefits). Significantly, however,

9

these reasons were not articulated by the ALJ in his explanation of the weight given to Dr. Desai’s

10

opinions.

11

The Court is constrained to review only the reasoning asserted by the ALJ, and cannot consider

12

post hoc reasoning by Defendant, or even the evidence upon which the ALJ could have relied. Connett

13

v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (noting that a reviewing court “is constrained to review

14

the reasons the ALJ asserts” and finding error were the ALJ affirmed the ALJ’s decision “based on

15

evidence that the ALJ did not discuss”). The Ninth Circuit has explained that the Court cannot engage

16

in “post hoc rationalizations that attempt to intuit what the [ALJ] might have been thinking,” and

17

cannot affirm on rationale that was not articulated by the ALJ. Bray v. Comm’r, 554 F.3d 1219, 1229

18

(9th Cir. 2009). Because the reasons identified by Defendant were not articulated by the ALJ, the Court

19

cannot find the ALJ identified specific, legitimate reasons for rejecting the opinion of Dr. Desai.

20

B.

Credibility of Plaintiff’s Subjective Complaints

21

In assessing credibility, an ALJ must determine first whether objective medical evidence shows

22

an underlying impairment “which could reasonably be expected to produce the pain or other symptoms

23

alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (quoting Bunnell v. Sullivan,

24

947 F.2d 341, 344 (9th Cir. 1991)). Where the objective medical evidence shows an underlying

25

impairment, and there is no affirmative evidence of a claimant’s malingering, an “adverse credibility

26

finding must be based on clear and convincing reasons.” Id. at 1036; Carmickle v. Comm’r of Soc. Sec.

27

Admin., 533 F.3d 1155, 1160 (9th Cir. 2008). Here, the ALJ determined Plaintiff’s “medically-

28

determinable impairments could reasonably be expected to cause the alleged symptoms.” (Doc. 9-3 at
12

1

21). However, the ALJ found Plaintiff’s “statements concerning the intensity, persistence, and limiting

2

effects of [his] symptoms are not credible . . .” (Id.) Consequently, the ALJ was required to set forth

3

clear and convincing reasons for rejecting Plaintiff’s testimony regarding his limitations.

4

Factors that may be considered in the credibility analysis include: (1) the claimant’s reputation

5

for truthfulness, (2) inconsistencies in testimony or between testimony and conduct; (3) the claimant’s

6

daily activities, (4) an unexplained, or inadequately explained, failure to seek treatment or follow a

7

prescribed course of treatment and (5) testimony from physicians concerning the nature, severity, and

8

effect of the symptoms of which the claimant complains. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.

9

1989); see also Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). Here, the ALJ considered

10

a number of factors, including his activities of daily living, the treatment Plaintiff received, and the

11

medical record. (Doc. 9-3 at 23.) Plaintiff argues these reasons were legally insufficient to support a

12

rejection of his testimony. (Doc. 15 at 10-12).

13

1.

Activities of daily living

14

When a claimant spends a substantial part of the day “engaged in pursuits involving the

15

performance of physical functions that are transferable to a work setting, a specific finding as to this

16

fact may be sufficient to discredit a claimant’s allegations.” Morgan v. Comm’r of the Soc. Sec.

17

Admin., 169 F.3d 595, 600 (9th Cir. 1999) (citing Fair, 885 F.2d at 603). For example, a claimant’s

18

ability to cook, clean, do laundry and manage finances may be sufficient to support an adverse finding

19

find of credibility. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008); see also

20

Burch v. Barchart, 400 F.3d 676, 681 (9th Cir. 2005) (the claimant’s activities “suggest she is quite

21

functional. She is able to care for her own personal needs, cook, clean and shop. She interacts with her

22

nephew and boyfriend. She is able to manage her own finances…”). Likewise, an ALJ may conclude

23

“the severity of . . . limitations were exaggerated” when a claimant exercises, gardens, and participates

24

in community activities. Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009).

25

However, an ALJ must make a specific finding relating to the transferability of the activities to a

26

workplace to refute a plaintiff’s allegations of disability. Orn, 495 F.3d at 639.

27
28

In this case, the ALJ considered Plaintiff’s activities—including “making sandwiches, going to
church, and going grocery shopping”—and concluded his activities were inconsistent with his
13

1

complaints of completely disabling pain. (Doc. 9-3 at 23). However, the Ninth Circuit has made clear

2

that the mere fact a claimant engages in normal daily activities “does not in any way detract from [his]

3

credibility as to [his] overall disability.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). The

4

Court continued, “One does not need to be ‘utterly incapacitated’ in order to be disabled.” Id. (quoting

5

Fair, 885 F.2d at 603). Rather, an ALJ must make a determination as to whether daily activities are

6

transferrable to a workplace. See Orn, 495 F.3d at 639 (the ALJ erred in failing to “meet the threshold

7

for transferable work skills, the second ground for using daily activities in credibility determinations”).

8
9

The ALJ failed to find Plaintiff’s limited activities could be transferred to a work setting, or
determine whether Plaintiff spent a “substantial” part of his day engaged in such activities. Moreover,

10

the Ninth Circuit opined, “Daily household chores and grocery shopping are not activities that are

11

easily transferable to a work environment.” Blau v. Astrue, 263 Fed. App’x 635, 637 (9th Cir. 2008).

12

Thus, Plaintiff’s activities of daily living were not clear and convincing evidence to discount his

13

credibility. See Lewis v. Apfel, 236 F.3d 503, 517 (9th Cir. 2001) (limited activities did not constitute

14

convincing evidence that the claimant could function regularly in a work setting).

15

2.

Treatment received

16

In assessing Plaintiff’s credibility about his symptoms, the ALJ may consider “the type,

17

dosage, effectiveness, and side effects of any medication.” 20 C.F.R. § 404.1529(c). Further, the

18

treatment Plaintiff received, especially when conservative, is a legitimate consideration in a credibility

19

finding. See Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (the ALJ properly considered the

20

physician’s failure to prescribe, and the claimant’s failure to request, medical treatment commensurate

21

with the “supposedly excruciating pain” alleged); see also Burch, 400 F.3d at 681 (finding the ALJ’s

22

consideration of the claimant’s failure to see treatment for a three or four month period was “powerful

23

evidence” and an “ALJ is permitted to consider lack of treatment in his credibility determination).

24

In this case, the ALJ observed Plaintiff’s “treatment was conservative and non-aggressive.”

25

(Doc. 9-3 at 23.) Notably, in the past, Plaintiff had undergone surgery to install a pacemaker and a

26

stent, and surgery is not considered conservative treatment. See Ritchotte v. Astrue, 281 Fed. Appx.

27

757, 759 (9th Cir. 2008) (rejecting the ALJ’s conclusion that the claimant’s treatment was too

28

conservative where he had surgery and the prognosis was guarded); see also Sanchez v. Colvin, 2013
14

1

U.S. Dist. LEXIS 47081, at *10 (C.D. Cal. Mar. 29, 2013) (“surgery and conservative measures are at

2

different ends of the treatment spectrum”). On the other hand, as the ALJ notes, Plaintiff received only

3

conservative treatments following his alleged date of disability.5 Thus, this factor may support the

4

adverse credibility determination.

5

3.

Inconsistencies with the medical record

6

The ALJ found Plaintiff’s “testimony was not supported and inconsistent with object findings,

7

and his complaints were inconsistent with signs and findings.” (Doc. 9-3 at 23.) Generally, “conflicts

8

between a [claimant’s] testimony of subjective complaints and the objective medical evidence in the

9

record” can constitute “specific and substantial reasons that undermine… credibility.” Morgan v.

10

Comm’r of Social Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). The Ninth Circuit explained, “While

11

subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by

12

objective medical evidence, the medical evidence is still a relevant factor in determining the severity of

13

the claimant’s pain and its disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001);

14

see also Burch, 400 F.3d at 681 (“Although lack of medical evidence cannot form the sole basis for

15

discounting pain testimony, it is a factor that the ALJ can consider in his credibility analysis”). Because

16

the ALJ did not base the decision solely on the fact that the medical record did not support the degree

17

of symptoms alleged by Plaintiff, the objective medical evidence was a relevant factor in determining

18

Plaintiff’s credibility.

19

Importantly, in citing to the medical evidence as part of a credibility determination, it is not

20

sufficient for the ALJ to make a simple statement that the testimony is inconsistent with the medical

21

record. Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (“general findings are an

22

insufficient basis to support an adverse credibility determination”). Rather, the ALJ has a burden to

23

“specifically identify what testimony is credible and what evidence undermines the claimant’s

24

complaints.” Morgan, 169 F.3d at 599; see also Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993)

25

(the ALJ “must state which pain testimony is not credible and what evidence suggests the claimants are

26

not credible”). Here, the ALJ failed to identify the portions of Plaintiff's testimony he believed were

27
5

28

Notably, there was no evidence presented that more aggressive treatment was available to treat the symptoms
Plaintiff claimed.

15

1

inconsistent with the medical record. Consequently, the objective medical record does not support the

2

adverse credibility determination.
Moreover, the ALJ’s failure to specifically discuss and identify what portions of Plaintiff’s

3
4

testimony he found not credible constituted a failure to apply the correct legal standards in evaluating

5

the credibility of Plaintiff’s testimony. As a result, the reasons for rejecting Plaintiff’s credibility

6

cannot be upheld by the Court. See Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) (an ALJ’s

7

credibility determinations may only be upheld when it is “sufficiently specific to allow a reviewing

8

court to conclude the ALJ rejected the claimant’s testimony on permissible grounds”).

9

C.

10

Remand is appropriate in this action
The decision whether to remand a matter pursuant to sentence four of 42 U.S.C. § 405(g) or to

11

order immediate payment of benefits is within the discretion of the District Court. Harman v. Apfel,

12

211 F.3d 1172, 1178 (9th Cir. 2000). Except in rare instances, when a court reverses an administrative

13

agency determination, the proper course is to remand to the agency for additional investigation or

14

explanation. Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004) (citing INS v. Ventura, 537 U.S. 12,

15

16 (2002)). Generally, an award of benefits is directed when:

16
17

(1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence,
(2) there are no outstanding issues that must be resolved before a determination of
disability can be made, and (3) it is clear from the record that the ALJ would be
required to find the claimant disabled were such evidence credited.

18
19

Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). In addition, an award of benefits is directed

20

when no useful purpose would be served by further administrative proceedings, or where the record has

21

been fully developed. Varney v. Sec’y of Health & Human Serv., 859 F.2d 1396, 1399 (9th Cir. 1988).

22

Applying the Smolen factors to this case, the ALJ failed to set forth legally sufficient reasons to

23

properly reject the opinions of Dr. Desai. The matter should be remanded for the ALJ to re-evaluate

24

the medical evidence, because it is not clear from the record that the ALJ would be required to find

25

Plaintiff disabled if the opinion of the treating physician was credited. Further, the ALJ failed to

26

properly reject the credibility of Plaintiff’s subjective complaints. A remand for further proceedings

27

regarding the credibility determination is appropriate remedy. See, e.g., Bunnell, 947 F.2d at 348

28

(affirming the district court’s order remanding for further proceedings where the ALJ failed to explain
16

1

with sufficient specificity the basis for rejecting the claimant’s testimony); Byrnes v. Shalala, 60 F.3d

2

639, 642 (9th Cir. 1995) (remanding the case “for further proceedings evaluating the credibility of [the

3

claimant’s] subjective complaints . . .”). Based upon the record, remand is appropriate in this matter.

4

CONCLUSION AND ORDER

5

For the reasons set forth above, the Court finds the ALJ erred in assessing the opinions of

6

Plaintiff’s treating cardiologist, and failed to identify clear and convincing reasons for rejecting the

7

credibility of Plaintiff’s subjective complaints. Because the ALJ failed to apply the correct legal

8

standards, the administrative decision should not be upheld by the Court. See Sanchez, 812 F.2d at 510.

9
10

Accordingly, IT IS HEREBY ORDERED:
1.

proceedings consistent with this decision; and

11
12

Pursuant to sentence four of 42 U.S.C. § 405(g), this matter is REMANDED for further

2.

The Clerk of Court IS DIRECTED to enter judgment in favor of Plaintiff Johnny

13

Contreras and against Defendant Carolyn W. Colvin, Acting Commissioner of Social

14

Security.

15
16
17
18

IT IS SO ORDERED.
Dated:

February 27, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

19
20
21
22
23
24
25
26
27
28
17