Davis v. Commissioner of Social Security

Filing 17

ORDER signed by Magistrate Judge Dale A. Drozd on 3/14/2015 ORDERING 15 Plaintiff's Motion for Summary Judgment is GRANTED; Defendant's 16 Cross-Motion for Summary Judgment is DENIED; the Commissioner's decision is REVERSED; and this matter is REMANDED for further proceedings consistent with this order. CASE CLOSED (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EUNICE DAVIS,

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No. 2:13-cv-1908 DAD
Plaintiff,

v.

ORDER

CAROLYN W. COLVIN, Commissioner
of Social Security,

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Defendant.

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This social security action was submitted to the court without oral argument for ruling on

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plaintiff‟s motion for summary judgment. For the reasons explained below, plaintiff‟s motion is

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granted, defendant‟s cross-motion is denied, the decision of the Commissioner of Social Security

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(“Commissioner”) is reversed, and the matter is remanded for further proceedings consistent with

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this order.

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PROCEDURAL BACKGROUND
On June 28, 2010, plaintiff filed applications for Disability Insurance Benefits (“DIB”)

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under Title II of the Social Security Act (“the Act”) and for Supplemental Security Income

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(“SSI”) under Title XVI of the Act alleging disability beginning on March 31, 2009. (Transcript

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(“Tr.”) at 53, 115-26.) Plaintiff‟s applications were denied initially, (id. at 67-72), and upon

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reconsideration. (Id. at 75-79.) Plaintiff requested a hearing and a hearing was held before an
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Administrative Law Judge (“ALJ”) on February 23, 2012. (Id. at 6-26.) Plaintiff appeared

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without representation and testified at the administrative hearing. (Id. at 7-8.) In a decision

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issued on July 27, 2012, the ALJ found that plaintiff was not disabled. (Id. at 61.) The ALJ

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entered the following findings:

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1. The claimant meets the insured status requirements of the Social
Security Act through December 31, 2014.

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2. The claimant has not engaged in substantial gainful activity
since March 31, 2009, the alleged onset date (20 CFR 404.1571 et
seq., and 416.971 et seq.).

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3. The claimant has the following severe impairments:
degenerative disc disease; chronic cervical and lumbosacral pain;
hypertension; and obesity (20 CFR 404.1520(c) and 416.920(c)).

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4. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925
and 416.926).

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5. After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except she is capable of occasionally pushing and
pulling with her bilateral upper extremities and lower extremities;
occasionally balancing, stooping, kneeling, crouching, crawling,
and climbing.

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6. The claimant is capable of performing past relevant work as a
security guard. This work does not require the performance of
work-related activities precluded by the claimant‟s residual
functional capacity (20 CFR 404.1565 and 416.965).

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7. The claimant has not been under a disability, as defined in the
Social Security Act, from March 31, 2009, through the date of this
decision (20 CFR 404.1520(f) and 416.920(f)).

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(Id. at 55-60.)
On August 22, 2013, the Appeals Council denied plaintiff‟s request for review of the

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ALJ‟s July 27, 2012 decision. (Id. at 1-3.) Plaintiff sought judicial review pursuant to 42 U.S.C.

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§ 405(g) by filing the complaint in this action on September 13, 2013.

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LEGAL STANDARD
“The district court reviews the Commissioner‟s final decision for substantial evidence,
and the Commissioner‟s decision will be disturbed only if it is not supported by substantial
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evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158-59 (9th Cir. 2012).

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Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to

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support a conclusion. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Sandgathe v.

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Chater, 108 F.3d 978, 980 (9th Cir. 1997).

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“[A] reviewing court must consider the entire record as a whole and may not affirm

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simply by isolating a „specific quantum of supporting evidence.‟” Robbins v. Soc. Sec. Admin.,

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466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.

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1989)). If, however, “the record considered as a whole can reasonably support either affirming or

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reversing the Commissioner‟s decision, we must affirm.” McCartey v. Massanari, 298 F.3d

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1072, 1075 (9th Cir. 2002).

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A five-step evaluation process is used to determine whether a claimant is disabled. 20

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C.F.R. § 404.1520; see also Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). The five-step

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process has been summarized as follows:

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Step one: Is the claimant engaging in substantial gainful activity? If
so, the claimant is found not disabled. If not, proceed to step two.
Step two: Does the claimant have a “severe” impairment? If so,
proceed to step three. If not, then a finding of not disabled is
appropriate.
Step three: Does the claimant‟s impairment or combination of
impairments meet or equal an impairment listed in 20 C.F.R., Pt.
404, Subpt. P, App. 1? If so, the claimant is automatically
determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past work? If
so, the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant have the residual functional capacity to
perform any other work? If so, the claimant is not disabled. If not,
the claimant is disabled.
Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).
The claimant bears the burden of proof in the first four steps of the sequential evaluation

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process. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). The Commissioner bears the burden

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if the sequential evaluation process proceeds to step five. Id.; Tackett v. Apfel, 180 F.3d 1094,

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1098 (9th Cir. 1999).
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APPLICATION
In her pending motion plaintiff argues that the ALJ‟s treatment of the medical opinion

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evidence constituted error and that the ALJ improperly rejected plaintiff‟s subjective testimony

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regarding her pain and her symptoms.1

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I.

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Medical Opinion Evidence
Plaintiff argues that the ALJ improperly rejected the records from her chiropractor, Glen

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K. Dawdy. In this regard, the ALJ acknowledged that plaintiff‟s chiropractor “consistently

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diagnosed L5-S1 extrusion with spinal canal narrowing and opined the claimant‟s cervical and

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lumbosacral pain prevented her from returning to regular and customary work.” (Tr. at 59.) The

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ALJ noted, however, that a chiropractor is “not an acceptable medical source,” and therefore

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“afforded no weight” to the evidence from plaintiff‟s chiropractor. (Id.) Defendant argues that

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the ALJ‟s rejection of this evidence from plaintiff‟s chiropractor was proper.2 (Def.‟s MSJ (Dkt.

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No. 16) at 23.)

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Plaintiff, who is proceeding pro se in this action, has filed a motion for summary judgment that
exceeds fifty pages in length and does not clearly set forth her claims for relief. In her pending
motion plaintiff attempts to challenge nearly every aspect of the ALJ‟s decision with every piece
of evidence found in the record. As a result, plaintiff raises points of little relevance such as the
ALJ‟s alleged failure to consider a prescription prescribed on a given day. (Pl.‟s MSJ (Dkt. No.
15) at 31.) The ALJ may well have struggled with similar issues. Nonetheless, as the defendant
notes, “[p]laintiff appears to argue that the ALJ failed to properly consider her statements . . .
[and] records from chiropractor Dawdy . . . .” (Def.‟s MSJ (Dkt. No. 16) at 12.) The court agrees
with this characterization of plaintiff‟s essential claims.
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Defendant attempts to buttress the ALJ‟s rejection of chiropractor Dawdy‟s opinion by
asserting that the ALJ “noted that the chiropractic treatment was conservative.” (Def.‟s MSJ
(Dkt. No. 16) at 23.) The ALJ, however, did not rely on the fact that Dawdy‟s chiropractic
treatment of plaintiff was conservative as a basis for the rejection of Dawdy‟s opinion. Rather,
the portion of the ALJ‟s decision referred to by defendant comes after the ALJ had rejected
Dawdy‟s opinion and simply states that “[r]equired treatment has been routine and conservative”
and notes that plaintiff “has been treated with chiropractic care, but has not had treatment beyond
this.” (Tr. at 60.) This court is required “to review the ALJ‟s decision based on the reasoning
and factual findings offered by the ALJ - not post hoc rationalizations that attempt to intuit what
the adjudicator may have been thinking.” Bray v. Comm‟r of Soc. Sec. Admin., 554 F.3d 1219,
1225 (9th Cir. 2009). Instead, the Commissioner‟s decision “must stand or fall with the reasons
set forth in the ALJ‟s decision, as adopted by the Appeals Council.” Barbato v. Comm‟r of Soc.
Sec. Admin., 923 F. Supp. 1273, 1276 n.2 (C.D. Cal. 1996). See also Gonzalez v. Sullivan, 914
F.2d 1197, 1201 (9th Cir. 1990) (“[W]e are wary of speculating about the basis of the ALJ‟s
conclusion . . . .”).
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An ALJ may afford less weight to the opinion of a chiropractor because he or she is not an

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acceptable medical source but is instead classified as an “other source.” See 20 C.F.R. §§

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404.1513(d)(1), 416.913(d)(1) (chiropractors are not acceptable medical sources but other

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sources). Nonetheless, the opinions and evidence from other sources, such as chiropractors, are

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important and must be evaluated by the ALJ. See Garrison v. Colvin, 759 F.3d 995, 1013-14 (9th

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Cir. 2014) (ALJ erred by failing to recognize “other source that can provide evidence about the

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severity of a claimant‟s impairments and how it affects the claimant‟s ability to work”); SSR 06-

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03p, 2006 WL 2329939, at *3 (“Opinions from these medical sources, who are not technically

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deemed „acceptable medical sources‟ under our rules, are important and should be evaluated on

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key issues such as impairment severity and functional effects, along with the other relevant

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evidence in the file.”).
Accordingly, the ALJ may only reject evidence from an “other source,” such as a

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chiropractor, if the ALJ gives a germane reason for doing so. See Molina v. Astrue, 674 F.3d

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1104, 1111 (9th Cir. 2012); Bain v. Astrue, 319 Fed. Appx. 543, 546 (9th Cir. 2009)3; Petty v.

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Colvin, 954 F.Supp.2d 914, 926 (D. Ariz. 2013) (“An ALJ is free to discount testimony from

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other sources, but as the Commissioner concedes, he must give reasons germane to each witness

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for doing so.”).

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Here, the ALJ erred by failing to offer any reason for rejecting the findings and opinions

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of plaintiff‟s chiropractor. Accordingly, the court finds that plaintiff is entitled to summary

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judgment in her favor with respect to this claim.

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II.

Subjective Testimony
Plaintiff also asserts that the ALJ erred by rejecting plaintiff‟s own subjective testimony .

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(Pl.‟s MSJ (Dkt. No. 15) at 48.) The Ninth Circuit has summarized the ALJ‟s task with respect to

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assessing a claimant‟s credibility as follows:
To determine whether a claimant‟s testimony regarding subjective
pain or symptoms is credible, an ALJ must engage in a two-step
analysis. First, the ALJ must determine whether the claimant has

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Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule
36-3(b).
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presented objective medical evidence of an underlying impairment
which could reasonably be expected to produce the pain or other
symptoms alleged. The claimant, however, need not show that her
impairment could reasonably be expected to cause the severity of
the symptom she has alleged; she need only show that it could
reasonably have caused some degree of the symptom. Thus, the
ALJ may not reject subjective symptom testimony . . . simply
because there is no showing that the impairment can reasonably
produce the degree of symptom alleged.

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Second, if the claimant meets this first test, and there is no evidence
of malingering, the ALJ can reject the claimant‟s testimony about
the severity of her symptoms only by offering specific, clear and
convincing reasons for doing so . . . .

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Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (citations and quotation marks

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omitted). “At the same time, the ALJ is not required to believe every allegation of disabling pain,

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or else disability benefits would be available for the asking . . . .” Molina v. Astrue, 674 F.3d

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1104, 1112 (9th Cir. 2012).

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“The ALJ must specifically identify what testimony is credible and what testimony

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undermines the claimant‟s complaints.” Valentine v. Comm‟r of Soc. Sec. Admin., 574 F.3d 685,

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693 (9th Cir. 2009) (quoting Morgan v. Comm‟r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.

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1999)). In weighing a claimant‟s credibility, an ALJ may consider, among other things, the

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“[claimant‟s] reputation for truthfulness, inconsistencies either in [claimant‟s] testimony or

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between [her] testimony and [her] conduct, [claimant‟s] daily activities, [her] work record, and

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testimony from physicians and third parties concerning the nature, severity, and effect of the

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symptoms of which [claimant] complains.” Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir.

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2002) (modification in original) (quoting Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir.

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1997)). If the ALJ‟s credibility finding is supported by substantial evidence in the record, the

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court “may not engage in second-guessing.” Id.
Here, the ALJ found that plaintiff‟s credibility had “been somewhat diminished due to

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inconsistencies observed in the record.” (Tr. at 59.) In this regard, the ALJ stated that plaintiff‟s

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daily activities were inconsistent with her reports of disabling limitations.4 (Id. at 59-60.)

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However, it is well established that social security claimants need not be “utterly incapacitated to

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be eligible for benefits.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). See also Vertigan v.

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Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (“This court has repeatedly asserted that the mere

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fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving a car,

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or limited walking for exercise, does not in any way detract from her credibility as to her overall

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disability.”); Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987) (“Disability does not mean that

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a claimant must vegetate in a dark room excluded from all forms of human and social activity.”).

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In general, the Commissioner does not consider “activities like taking care of yourself, household

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tasks, hobbies, therapy, school attendance, club activities, or social programs” to be substantial

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gainful activities. 20 C.F.R. § 404.1572(c).
The court finds that the ALJ did not offer a convincing reason for rejecting plaintiff‟s

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subjective testimony regarding her pain and her symptoms. Accordingly, plaintiff is also entitled

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to summary judgment in her favor with respect to this claim.

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CONCLUSION

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With error established, the court has the discretion to remand or reverse and award

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benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Where no useful purpose

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would be served by further proceedings, or where the record has been fully developed, it is

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appropriate to exercise this discretion to direct an immediate award of benefits. See Benecke v.

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Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004). However, where there are outstanding issues that

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must be resolved before a determination can be made, or it is not clear from the record that the

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ALJ would be required to find plaintiff disabled if all the evidence were properly evaluated,

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remand is appropriate. Id. at 594.

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Here, the record in this case has not been fully developed, there are outstanding issues that

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must still be resolved and it is not clear from the record that the ALJ would be required to find

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Thereafter, the ALJ stated that plaintiff‟s treatment had been routine and conservative but did
not specifically refer to any aspect of plaintiff‟s own testimony. (Tr. at 60.) Thus, it is not clear
that the ALJ relied on the finding that plaintiff‟s treatment was conservative as a basis for
rejecting plaintiff‟s testimony.
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plaintiff disabled if all the evidence were properly evaluated. Accordingly, the court finds that

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this matter should be remanded for further proceedings so that the ALJ can correct the errors

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noted above and properly consider the evidence of record in reaching a decision.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff‟s motion for summary judgment (Dkt. No. 15) is granted;

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2. Defendant‟s cross-motion for summary judgment (Dkt. No. 16) is denied;

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3. The Commissioner‟s decision is reversed; and

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4. This matter is remanded for further proceedings consistent with this order.

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Dated: March 14, 2015

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DAD:6
Ddad1\orders.soc sec\davis1908.ord.docx

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