Haro v. Commissioner of Social Security

Filing 21

ORDER signed by Magistrate Judge Allison Claire on 9/6/17: Plaintiff's motion for summary judgment 17 , is GRANTED. The Commissioner's cross-motion for summary judgment 19 , is DENIED. This matter is REMANDED to the Commissioner for further consideration consistent with this order. The Clerk of the Court shall enter judgment for plaintiff, and close this case. (Kaminski, H)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LETICIA HARO, 12 Plaintiff, 13 14 15 No. 2:16-cv-01139 AC v. ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 17 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 18 19 (“Commissioner”), denying her application for disability insurance benefits (“DIB”) under 20 Title II of the Social Security Act (“the Act”), 42 U.S.C. §§ 401-34.1 For the reasons that follow, 21 plaintiff’s motion for summary judgment will be GRANTED, and defendant’s cross-motion for 22 summary judgment will be DENIED. The matter will be reversed and remanded to the 23 Commissioner for further proceedings. 24 //// 25 //// 26 27 1 DIB is paid to disabled persons who have contributed to the Disability Insurance Program, and who suffer from a mental or physical disability. 42 U.S.C. § 423(a)(1); Bowen v. City of New York, 476 U.S. 467, 470 (1986). 28 1 1 I. PROCEDURAL BACKGROUND Plaintiff applied for DIB on January 14, 2013. Administrative Record (“AR”) 14.2 The 2 3 disability onset date was alleged to be December 19, 2012. Id. The application was disapproved 4 initially and on reconsideration. Id. On August 18, 2014, ALJ Daniel G. Heely presided over the 5 hearing on plaintiff’s challenge to the disapprovals. AR 29 – 53 (transcript). Plaintiff, who 6 appeared with her counsel Jeffrey Milam, was present at the hearing. AR 29. Jo Ann Yoshioka, 7 a Vocational Expert (“VE”), also testified at the hearing. Id. 8 On October 27, 2014, the ALJ found plaintiff “not disabled” under Sections 216(i) and 9 223(d) of Title II of the Act, 42 U.S.C. §§ 416(i), 423(d). AR 14-22 (decision), 23-26 (exhibit 10 list). On March 22, 2016, after receiving Exhibit 16E, Representative Brief dated February 11, 11 2015 as an additional exhibit, the Appeals Council denied plaintiff’s request for review, leaving 12 the ALJ’s decision as the final decision of the Commissioner of Social Security. AR 1-5 13 (decision and additional exhibit list). 14 Plaintiff filed this action on May 25, 2016. ECF No. 1; see 42 U.S.C. § 405(g). The 15 parties consented to the jurisdiction of the magistrate judge. ECF Nos. 7, 11. The parties’ cross- 16 motions for summary judgment, based upon the Administrative Record filed by the 17 Commissioner, have been fully briefed. ECF Nos. 17 (plaintiff’s summary judgment motion), 19 18 (Commissioner’s summary judgment motion), 20 (plaintiff’s reply). 19 II. FACTUAL BACKGROUND 20 Plaintiff was born on April 20, 1966, and accordingly was, at age 46, a younger person 21 under the regulations, when she filed her application.3 AR 55. Plaintiff has at least a high school 22 education, and can communicate in English. AR 178, 305. Plaintiff worked as a school bus 23 driver from December of 1995 through December of 2012. AR 180. 24 III. LEGAL STANDARDS 25 The Commissioner’s decision that a claimant is not disabled will be upheld “if it is 26 27 2 3 The AR is electronically filed at ECF Nos. 13-3 to 13-13 (AR 1 to AR 506). See 20 C.F.R. § 404.1563(c) (“younger person”). 28 2 1 supported by substantial evidence and if the Commissioner applied the correct legal standards.” 2 Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). “‘The findings of the 3 Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ..’” Andrews 4 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (quoting 42 U.S.C. § 405(g)). 5 Substantial evidence is “more than a mere scintilla,” but “may be less than a 6 preponderance.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). “It means such 7 evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. 8 Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted). “While inferences from the 9 record can constitute substantial evidence, only those ‘reasonably drawn from the record’ will 10 suffice.” Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (citation omitted). 11 Although this court cannot substitute its discretion for that of the Commissioner, the court 12 nonetheless must review the record as a whole, “weighing both the evidence that supports and the 13 evidence that detracts from the [Commissioner’s] conclusion.” Desrosiers v. Secretary of HHS, 14 846 F.2d 573, 576 (9th Cir. 1988); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (“The 15 court must consider both evidence that supports and evidence that detracts from the ALJ’s 16 conclusion; it may not affirm simply by isolating a specific quantum of supporting evidence.”). 17 “The ALJ is responsible for determining credibility, resolving conflicts in medical 18 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th 19 Cir. 2001). “Where the evidence is susceptible to more than one rational interpretation, one of 20 which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 21 278 F.3d 947, 954 (9th Cir. 2002). However, the court may review only the reasons stated by the 22 ALJ in his decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn 23 v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 24 2003) (“It was error for the district court to affirm the ALJ’s credibility decision based on 25 evidence that the ALJ did not discuss”). 26 The court will not reverse the Commissioner’s decision if it is based on harmless error, 27 which exists only when it is “clear from the record that an ALJ’s error was ‘inconsequential to the 28 ultimate nondisability determination.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 3 1 2006) (quoting Stout v. Commissioner, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch v. 2 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 3 4 IV. RELEVANT LAW Disability Insurance Benefits and Supplemental Security Income are available for every 5 eligible individual who is “disabled.” 42 U.S.C. §§ 402(d)(1)(B)(ii) (DIB), 1381a (SSI). Plaintiff 6 is “disabled” if she is “‘unable to engage in substantial gainful activity due to a medically 7 determinable physical or mental impairment . . ..’” Bowen v. Yuckert, 482 U.S. 137, 140 (1987) 8 (quoting identically worded provisions of 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A)). 9 The Commissioner uses a five-step sequential evaluation process to determine whether an 10 applicant is disabled and entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); 11 Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003) (setting forth the “five-step sequential evaluation 12 process to determine disability” under Title II and Title XVI). The following summarizes the 13 sequential evaluation: 14 15 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 20 C.F.R. § 404.1520(a)(4)(i), (b). 16 17 18 19 20 21 Step two: Does the claimant have a “severe” impairment? If so, proceed to step three. If not, the claimant is not disabled. Id. §§ 404.1520(a)(4)(ii), (c). 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 disabled. If not, proceed to step four. Id. §§ 404.1520(a)(4)(iii), (d). 22 23 24 Step four: Does the claimant’s residual functional capacity make him capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Id. §§ 404.1520(a)(4)(iv), (e), (f). 25 26 27 Step five: Does the claimant have the residual functional capacity perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. Id. §§ 404.1520(a)(4)(v), (g). 28 4 1 The claimant bears the burden of proof in the first four steps of the sequential evaluation 2 process. 20 C.F.R. §§ 404.1512(a) (“In general, you have to prove to us that you are blind or 3 disabled”), 416.912(a) (same); Bowen, 482 U.S. at 146 n.5. However, “[a]t the fifth step of the 4 sequential analysis, the burden shifts to the Commissioner to demonstrate that the claimant is not 5 disabled and can engage in work that exists in significant numbers in the national economy.” Hill 6 v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Bowen, 482 U.S. at 146 n.5. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 V. THE ALJ’s DECISION The ALJ made the following findings: 1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2017. 2. [Step 1] The claimant did not engage in substantial gainful activity since December 19, 2012, the alleged onset date (20 CFR 404.1571 et seq.). 3. [Step 2] The claimant has the following severe impairments: fibromyalgia and depression (20 CFR 404.1520(c)). 4. [Step 3] 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 and 404.1526). 5. [Residual Functional Capacity (“RFC”)] 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) except she can never work around hazards (such as dangerous moving machinery, unprotected heights, and operational control of motor vehicles) or climb ladders, ropes, or scaffolds, occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs, and perform only simple, routine, and repetitive tasks. 6. [Step 4] The claimant is unable to perform any past relevant work (20 CFR 404.1565). 7. [Step 5] The claimant was born on April 20, 1966 and was 46 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563). 8. [Step 5, continued] The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564). 9. [Step 5, continued] Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2). 28 5 1 10. [Step 5, continued] Considering the claimant’s age, education, work experience, and residual functional capacity, there are job that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a). 2 3 11. The claimant has not been under a disability, as defined in the Social Security Act, from December 19, 2012, through the date of this decision (20 CFR 404.1520(g)). 4 5 6 AR 16-21 As noted, the ALJ concluded that plaintiff was “not disabled” under Title II of the Act. 7 8 9 10 AR 21. VI. ANALYSIS Plaintiff alleges that the ALJ erred by failing to provide legally sufficient reasons for 11 finding the plaintiff not credible. AR 17 at 7. Plaintiff argues the failure was harmful, and that 12 the case should be remanded to the Commissioner for further proceedings. Id. 13 A. The ALJ Improperly Rejected Plaintiff’s Subjective Testimony 14 The ALJ improperly rejected plaintiff’s subjective testimony regarding her pain and 15 impairments. Evaluating the credibility of a plaintiff’s subjective testimony is a two-step process. 16 First, the ALJ must “determine whether the claimant has presented objective medical evidence of 17 an underlying impairment which could reasonably be expected to produce the pain or other 18 symptoms alleged. . . . In this analysis, the claimant is not required to show that her impairment 19 could reasonably be expected to cause the severity of the symptom she has alleged; she need only 20 show that it could reasonably have caused some degree of the symptom.” Garrison v. Colvin, 759 21 F.3d 995, 1014 (9th Cir. 2014) (internal citations omitted). Objective medical evidence of the 22 pain or fatigue itself is not required. Id. (internal citations omitted). Second, if the ALJ does not 23 find evidence of malingering, the ALJ may only reject the claimant’s testimony by offering 24 “specific, clear and convincing reasons for doing so.” Id. (internal citations omitted). The Ninth 25 Circuit has “repeatedly warned that ALJs must be especially cautious in concluding that daily 26 activities are inconsistent with testimony about pain, because impairments that would 27 unquestionably preclude work and all the pressures of a workplace environment will often be 28 consistent with doing more than merely resting in bed all day.” Id. at 1016. 6 1 The ALJ’s opinion states that plaintiff’s testimony is discredited for “reasons explained in 2 [the] decision” (AR 19), but the only clear reason the ALJ provides is that plaintiff has “ample 3 activities of daily living” and traveled to Mexico and Monterey during her period of alleged 4 disability. AR 20. The activities of daily living the ALJ describes earlier in his order include 5 cooking, light cleaning, taking her daughter to school, maintaining her personal care, sometimes 6 preparing meals, doing laundry, loading the dishwasher, driving, going out alone, shopping in 7 stores more than once per week, handling money, and watching television for 3 to 4 hours per 8 day. AR 18. 9 The ALJ’s reasons for discounting plaintiff’s subjective testimony are legally insufficient. 10 The ALJ failed to describe with any particularly how any of the above listed activities conflict 11 with plaintiff’s complaints of chronic pain. “An ALJ must identify the specific testimony that 12 lacks credibility, provide clear and convincing reasons why the testimony is not credible, and 13 identify the specific evidence in the record which supports the ALJ’s determination.” Talbot v. 14 Colvin, No. SACV 14-1935 JC, 2015 WL 5826808, at *4 (C.D. Cal. Sept. 30, 2015). The ALJ’s 15 minimal, blanket statement does not suffice. 16 To the extent the ALJ found that plaintiff’s travels to Mexico and Monterey specifically 17 contradicted her subjective testimony, the analysis is lacking. AR 20. The ALJ does not explain 18 how these trips create an inconsistency. Id. A review of the hearing transcript reveals that 19 plaintiff experienced increased problems with pain and stiffness during each of these trips. AR 20 41-43. The fact of these trips alone does not conflict with plaintiff’s testimony regarding her pain 21 and limitations. The ALJ erred in discrediting plaintiff with such limited support for doing so. 22 C. Remand 23 The undersigned agrees with plaintiff that the ALJ’s error is harmful and remand for 24 further proceedings by the Commissioner is necessary. AR 17 at 16. An error is harmful when it 25 has some consequence on the ultimate non-disability determination. Stout v. Comm’r, Soc. Sec. 26 Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). The ALJ’s error in this matter was harmful; 27 plaintiff’s subjective testimony, properly considered, may very well result in a more restrictive 28 residual functional capacity assessment, which may in turn alter the finding of non-disability. 7 1 It is for the ALJ to determine in the first instance whether plaintiff has severe impairments 2 and, ultimately, whether she is disabled under the Act. See Marsh v. Colvin, 792 F.3d 1170, 1173 3 (9th Cir. 2015) (“the decision on disability rests with the ALJ and the Commissioner of the Social 4 Security Administration in the first instance, not with a district court”). “Remand for further 5 administrative proceedings is appropriate if enhancement of the record would be useful.” 6 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). Here, the ALJ failed to properly 7 consider plaintiff’s testimony. Further development of the record consistent with this order is 8 necessary, and remand for further proceedings is the appropriate remedy. 9 VII. CONCLUSION 10 For the reasons set forth above, IT IS HEREBY ORDERED that: 11 1. Plaintiff’s motion for summary judgment (ECF No. 17), is GRANTED; 12 2. The Commissioner’s cross-motion for summary judgment (ECF No. 19), is DENIED; 13 3. This matter is REMANDED to the Commissioner for further consideration consistent 14 15 16 with this order; and 4. The Clerk of the Court shall enter judgment for plaintiff, and close this case. DATED: September 6, 2017 17 18 19 20 21 22 23 24 25 26 27 28 8

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