Rodriguez v. Colvin

Filing 18

ORDER on Cross-Motions for Summary Judgment [Doc. No. 14 , 15 ]. Signed by Judge Cathy Ann Bencivengo on 8/11/2017. (jjg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JUAN RODRIGUEZ, Case No.: 16-cv-2806-CAB-DHB Plaintiff, 12 13 14 ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT [Doc. Nos. 14, 15] v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, 15 16 Defendant. 17 On November 15, 2016, Plaintiff Juan Rodriguez (“Plaintiff”) filed a complaint 18 pursuant to 42 U.S.C. § 405(g) of the Social Security Act requesting judicial review of the 19 final decision of the Commissioner of the Social Security Administration (“Commissioner” 20 or “Defendant”) regarding the denial of Plaintiff’s claim for disability benefits. [Doc. No. 21 1.] On March 31, 2017, Plaintiff filed a motion for summary judgment, requesting the 22 Court reverse the Commissioner’s final decision and order the payment of benefits, or, 23 alternatively, remand the case for further proceedings. [Doc. No. 14.] On April 28, 2017, 24 Defendant filed a cross-motion for summary judgment and an opposition to the Plaintiff’s 25 motion, requesting that the Court affirm the Commissioner’s final decision. [Doc. No. 15.] 26 For the reasons set for below, Plaintiff’s motion for summary judgment is granted and 27 Defendant’s cross-motion for summary judgment is denied. The case is remanded to the 28 ALJ for further proceedings consistent with this opinion. 1 16-cv-2806-CAB-DHB 1 I. 2 On April 15, 2012, Plaintiff filed an application for disability and disability 3 insurance benefits under Title II of the Social Security Act, alleging a disability beginning 4 on September 13, 2007. [Administrative Record (“A.R.”) at 217-18, 259.] After a denial 5 at the initial determination [A.R. at 122) and a denial on reconsideration [A.R. at 139], 6 Plaintiff requested and was granted a hearing before an Administrative Law Judge (“ALJ”). 7 [Id. at 156-159.] Background 8 On February 17, 2015, a hearing was held on Plaintiff’s claim before ALJ Howard 9 Tremlin. [Id. at 59-86.] Plaintiff, who was represented by counsel, appeared and testified 10 at the hearing. [Id.] Also appearing and testifying was a vocational expert. [Id.] 11 On April 30, 2015, the ALJ issued a decision denying Plaintiff’s claim for benefits. 12 [Id. at 29-38.] Applying the five-step, sequential-evaluation process for adjudication of 13 disability claims, the ALJ found that Plaintiff met the insured status requirements of the 14 Social Security Act through March 31, 2015. [Id. at 32.] The ALJ also found that Plaintiff 15 did not engage in substantial gainful activity during the period from the alleged onset date 16 of September 13, 2007 through his date last insured of March 31, 2015. [Id. at 32.] Further, 17 the ALJ concluded the Plaintiff’s listed impairments, which consisted of “mild 18 chrondromalacia; medial femoral condyle with early degenerative changes, left knee, 19 status-post left knee arthroscopy with diminished extension; mild thoracic spondylosis with 20 mild levoscoliosis; lumbar degenerative disc disease, with mild facet arthritis, L5-S1; and 21 complaints of pain in the right hip and right knee” affected him more than minimally, but 22 they did not meet or equal the severity of symptoms required under the medical listings. 23 [Id. at 32-33.] Additionally, the ALJ held that Plaintiff had the residual functional capacity 24 to perform light work, could occasionally lift 20 pounds, climb, kneel, and crouch, and 25 could frequently lift 10 pounds, sit, stand, walk for six hours in an eight hour workday, and 26 frequently stoop. [Id. at 33.] The ALJ also found that Plaintiff was capable of performing 27 his past work as a gate guard. [Id. at 37.] Furthermore, the ALJ found that even upon 28 application of grid rule 201.19, at sedentary exertion, the claimant was still not considered 2 16-cv-2806-CAB-DHB 1 disabled. [Id. at 37.] Ultimately, the ALJ concluded that Plaintiff was not disabled under 2 sections 216(i) and 223(d) of the Social Security Act from April 15, 2012 through March 3 31, 2015. [Id. at 38.] 4 On May 13, 2015, dissatisfied with the ALJ’s decision, Plaintiff requested review 5 with the Appeals Council. [Id. at 23-25.] On September 20, 2016, the Appeals Council 6 denied Plaintiff’s request for review thereby casting the ALJ’s decision as the final decision 7 of the Commissioner. [Id. at 1-7.] 8 Plaintiff commenced this action pursuant to 42 U.S.C. §§ 405(g). On March 31, 9 2017, Plaintiff filed the current motion for summary judgment. [Doc. No. 14.] On April 10 28, 3017, Defendant filed the cross-motion for summary judgment. [Doc. No. 15.] Both 11 parties filed their briefs in opposition. [Doc. Nos. 16, 17.] 12 II. 13 Under 42 U.S.C. section 405(g), courts review the ALJ's decision to determine 14 whether substantial evidence supports the ALJ's findings and if they are free of legal error. 15 See Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir.1996); DeLorme v. Sullivan, 924 F.2d 16 841, 846 (9th Cir.1991) (ALJ's disability determination must be supported by substantial 17 evidence and based on the proper legal standards). The Commissioner’s final decision 18 should not be disturbed unless; (1) the ALJ’s finding are based on legal error; or (2) the 19 ALJ’s determinations are not supported by substantial evidence in the record as a whole. 20 See Schneider v. Comm’r of Soc. Sec. Admin, 223 F.3d 968, 973 (9th Cir. 2000). Legal Standards 21 The reviewing court must follow three important rules when analyzing an ALJ’s 22 decision. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). First, the court 23 “leave[s] it to the ALJ to determine credibility, resolve conflicts in testimony, and resolve 24 ambiguities in the record.” Treichler v. Comm’r of Soc. Sec. Admin, 775 F.3d 1090, 1098 25 (9th Cir. 2014). Second, the court should “disturb the Commissioner’s decision to deny 26 benefits only if it is not supported by substantial evidence or is based on legal error.” Id. 27 (internal quotation marks and citation omitted). Substantial evidence means such relevant 28 evidence as a reasonable mind might accept as adequate to support a conclusion. Valentine 3 16-cv-2806-CAB-DHB 1 v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). In determining if 2 substantial evidence exists, courts must review the record as a whole and consider adverse 3 as well as supporting evidence. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th 4 Cir.2006). Where evidence can reasonably be construed to support more than one rational 5 interpretation, the ALJ's decision must be upheld. See Batson v. Comm’r of the Soc. Sec. 6 Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This includes deferring to the ALJ’s 7 credibility determinations and resolutions of evidentiary conflicts. Lewis v. Apfel, 236 F.3d 8 503, 509 (9th Cir. 2001). “However, a reviewing court must consider the entire record as 9 a whole and may not affirm simply by isolating a ‘specific quantum of supporting 10 evidence.’” Robbins, 466 F.3d at 882 (quoting Hammock v. Bowen, 879 F.2d 498, 501 11 (9th Cir.1989)); Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.2007). Third, the court must 12 uphold an ALJ’s decision, even when the ALJ commits legal error if that error is harmless. 13 Trechler, 775 F.3dd at 1099. 14 III. 15 Specifically at issue here is the residual functional capacity determination made by 16 the ALJ between steps three and four of the five step sequential evaluation process. 17 Plaintiff asserts that when determining his residual functional capacity the ALJ failed to 18 articulate specific, clear and convincing reasons for rejecting his testimony. [Doc. No. 14- 19 1 at 4-10.] Defendant counters that, based on substantial evidence, the ALJ properly 20 assessed Plaintiff’s credibility. [Doc. No. 15-1 at 4-7.] Discussion 21 An ALJ engages in a two-step analysis in determining whether a claimant’s 22 testimony regarding subjective pain or symptoms is credible. Molina v. Astrue, 674 F.3d 23 1104. 1112 (9th Cir. 2012). “First, the ALJ must determine whether the claimant has 24 presented objective medical evidence of an underlying impairment which would 25 reasonable be expected to produce pain.” Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 26 2014). Second, “[i]f the claimant satisfies the first step of this analysis, and there is no 27 evidence of malingering, “the ALJ can reject the claimant’s testimony about the severity 28 of her symptoms only by offering specific, clear and convincing reasons for doing so.” Id. 4 16-cv-2806-CAB-DHB 1 at 1014-1015. This requires the ALJ identify which testimony is not credible and what 2 evidence undermines the claimant’s complaints. Lester v. Chater, 81 F.3d 821, 834 (9th 3 Cir. 1995). 4 The ALJ may consider inconsistencies either in the claimant’s testimony or between 5 the testimony and the claimant’s conduct. See Turner v. Comm’r Soc. Sec. Admin, 613 6 F.3d 1217, 1224-25 (9th Cir. 2010). The ALJ is required to consider a claimant’s daily 7 activities and may reasonably discount a claimant’s subjective complaints where the 8 claimant engaged in activities inconsistent with the alleged symptoms. See 20 C.F.R. §§ 9 404.1529(c)(3), 416.927(c)(3); Molina, 674 F.3d at 1113. Where, as here, a Plaintiff has 10 provided evidence of an underlying impairment, the ALJ may “reject the claimant’s 11 testimony about the severity of h[is] symptoms only by offering specific, clear and 12 convincing reasons for doing so." Brown-Hunter, 806 F.3d at 493 (9th Cir. 2015) (quoting 13 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). 14 Plaintiff alleges disability based on a number of knee, hip and spinal complaints.1 15 Neither party disputes the ALJ’s determination that Plaintiff has presented objective 16 medical evidence of an underlying impairment which would reasonably be expected to 17 produce pain. See Garrison 759 F.3d at 1014. Accordingly, the first prong of the Garrison 18 analysis is satisfied. As a consequence, the Court must determine whether the ALJ 19 provided specific, clear and convincing reasons for discrediting Plaintiff’s testimony 20 concerning his subjective pain that are supported by evidence in the record. The clear and 21 convincing standard is “the most demanding required in Social Security cases” and “is not 22 an easy requirement to meet.” Garrison, 759 F.3d at 1015 (quoting Moore v. Comm’r of 23 Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 24 25 26 Plaintiff’s complaints include: mild chrondromalacia; medial femoral condyle with early degenerative changes, left knee, status-post left knee arthroscopy with diminished extension; mild thoracic spondylosis with mild levoscoliosis; lumbar degenerative disc disease, with mild facet arthritis, L5-S1; and complaints of pain in the right hip and right knee. 1 27 28 5 16-cv-2806-CAB-DHB 1 Here, the ALJ found that the functional limitations resulting from Plaintiff’s 2 impairments were not as intense, persisting and limiting as he alleged. [A.R. at 34.]. In so 3 finding, the ALJ noted that Plaintiff’s credibility was diminished because “those 4 allegations are greater than expected in light of the objective evidence of record.” [Id. at 5 35.] After making this determination the ALJ went on to summarize the medical evidence 6 in the record but failed to tie a particular statement he found to be not credible to particular 7 medical evidence. 8 Beginning in 2007, Plaintiff stopped working after he sustained a work-related injury 9 to his left knee when he stepped on a container and twisted his knee when he was working 10 at EDCO. On December 10, 2009, Plaintiff underwent a left knee diagnostic arthroscopy, 11 left knee medial femoral condyle chondroplasty and left knee major synovectomy. [Id. at 12 442-43.] As the ALJ correctly summarized, Plaintiff testified that he has used a cane since 13 his knee surgery in 2007 [Id. at 64]; he takes pain medication for pain in his knees, back 14 and hips [Id. at 65]; he uses a cane to ambulate [Id. at 72.]; and Plaintiff reported that he 15 cannot lift a gallon of milk [Id. at 68]. [Id. at 34.] Plaintiff also stated that he can sit for 16 about ten to fifteen minutes and stand and walk ten to fifteen minutes. [Id. at 67-68.] 17 Further, Plaintiff described his activities on a daily basis, including feeding his dogs and 18 watering the plants. [Id. at 72]. Plaintiff also testified that he has difficulty getting dressed, 19 needs help showering, and lies down four times a day for about thirty - forty-five minutes 20 at a time. [Id. at 69, 75.] Additionally, Plaintiff asserted that he suffers from diabetes, 21 sometimes feels dizzy and nauseous, has problems with his eyes, and utilizes back support 22 and a knee brace on his left knee. [Id. at 65-67, 72.] 23 The ALJ identified a number of statements made by Dr. Harris in 2010 and 2011 24 that repeatedly recommended Plaintiff be placed on light work duty that consisted of 25 sedentary work. [Id. at 34-35, 444-45, 571, 589-592, 640.] The ALJ also noted that in a 26 November 23, 2010 re-examination report, Dr. Murphy concluded that Plaintiff continued 27 to be permanent and stationary, and his work status remained light. [Id. at 35, 566-576.] 28 In addition, the ALJ summarized the medical examiner’s report submitted by Dr. Hall, 6 16-cv-2806-CAB-DHB 1 dated September 19, 2012, who recommended Plaintiff be fitted for a valgus unloading 2 type brace; utilize a cane; use anti-inflammatory medications; and ice his knee. [Id. at 35, 3 639, 674-77.] The ALJ also cited the November 2, 2014 and January 12, 2015, treatment 4 records from Borrego Centro Medico which indicate that Plaintiff was obese with a BMI 5 of 31, a pre-diabetic who was not in acute distress, was not feeling tired or poorly, had no 6 blurry vision, had no dizziness and was advised on diet and exercise. [Id. at 35, 683-85, 7 724-25.] 8 Further, the ALJ read and gave great weight to the findings within a pre-hearing 9 consultative examination performed by Dr. Sabourin, a Board certified orthopedic surgeon, 10 who evaluated Plaintiff on June 4, 2013. Dr. Sabourin determined that despite his 11 conditions Plaintiff was not precluded from performing a significant range of light 12 exertional capacity. [Id. at 624-629] After performing a physical examination Dr. 13 Sabourin reported that Plaintiff had some disproportion in regards to the severity and 14 duration of his complaints, had surgery on his left knee showing some chondormalacia, 15 with some atrophy in the left leg and decreased range of motion, and also complained of 16 back pain that Plaintiff related to a 1999 work-related injury that caused two discs to 17 herniate. [Id.] Dr. Sabourin opined that Plaintiff was able to: occasionally lift and/or carry 18 twenty pounds, climb kneel and crouch; frequently lift and/or carry ten pounds and stoop; 19 sit, stand, and/or walk for six hours in an eight-hour workday; and that he did not need an 20 assistive device to ambulate. [Id. at 628.] The ALJ also correctly noted that Dr. Sabourin 21 reported that during the examination Plaintiff was: 22 23 24 25 26 27 not fully cooperative during the exam, so there was uncertainty as to the exact degree of limitation he had and his feet were equally calloused; and the lumbar spine problems were not as severe as noted in the history when the x-rays were read by a second physician. Id. at 36. Similarly, the ALJ also read and gave great weight to the findings of consultative examiner, Dr. Moazzaz, a Board certified orthopedic surgeon who evaluated Plaintiff on 28 7 16-cv-2806-CAB-DHB 1 July 29, 2012. [Id. at 36-37.] The ALJ correctly summarized Dr. Moazzaz’s finding that 2 Plaintiff was not precluded from performing light exertional work, despite conditions of 3 status-post left knee arthroscopy with diminished extension and degenerative disc disease. 4 [Id. at 37, 611-617.] Dr. Moazzaz found that Plaintiff presented with a history of low back, 5 left knee pain, and degenerative changes of the lumbar spine, was lacking range of motion 6 of the left knee following two arthroscopies, but had an intact neurological exam with a 7 negative straight leg raise test. [Id. at 611-614.] Dr. Moazzaz opined that Plaintiff was: 8 able to lift and/or carry twenty pounds occasionally and ten pounds frequently; sit, stand, 9 and/or walk for six hours in an eight-hour workday; occasionally bend, kneel, stoop, crawl 10 and crouch; not subject to restrictions with overhead activities and could fully use his hands 11 for fine and gross manipulative movements; and did not need an assistive device to 12 ambulate. [Id. at 615.] 13 However, “although the ALJ summarized a significant portion of the administrative 14 record in support of h[is] RFC determination” he did not provide “clear and convincing 15 reasons for finding the claimant’s symptom testimony not credible.” Brown-Hunter, 806 16 F.3d at 494. Here, the ALJ determined that: 17 18 19 20 [a]fter careful consideration of the evidence, the undersigned finds that the claimant’s medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons explained in this decision. 21 A.R. 34. 22 evidence, the ALJ did not specifically identify which of Plaintiff’s statements he did not 23 find credible and why, nor did he explain what evidence in the record undermines 24 Plaintiff’s complaints. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“General 25 findings are insufficient, rather, the ALJ must identify what testimony is not credible and 26 what evidence undermines the claimant’s complaints.”); Holohan v. Massanari, 246 F.3d 27 1195, 1208 (9th Cir. 2001) (“the ALJ must specifically identify the testimony she or he 28 finds not be credible and must explain what evidence undermined the testimony”). After stating his non-credibility conclusion and summarizing the medical 8 16-cv-2806-CAB-DHB 1 This is precisely the type of general conclusory statement that the Ninth Circuit has 2 held to be insufficient. See, e.g., Treichler, 775 F.3d at 1102 (holding that the ALJ erred 3 by making only a “single general statement that ‘the claimant’s statements concerning the 4 intensity, persistence and limiting effects of these symptoms are not credible to the extent 5 they are inconsistent with the above residual functional capacity assessment.”); Brown- 6 Hunter, 806 F.3d at 493-494 (holding ALJ’s general statement that “she found, based on 7 unspecified claimant testimony and a summary of medical evidence, that “the functional 8 limitations from the claimant’s impairments were less serious than she has alleged” 9 insufficient because they failed to identify which of claimants statements are she found to 10 be not credible and why). While it could be inferred that the specific portions of the 11 medical records identified by the ALJ were the contradictory evidence and conclusions he 12 used in making his determination, this is not enough. Rather, the ALJ is required to connect 13 the contradictory evidence to specific statements made by Plaintiff; by not doing so he has 14 failed to provide the basic information necessary to ensure meaningful judicial review. 15 Thus, the Court finds the ALJ committed legal error because he “failed to identify the 16 testimony []he found not credible, []he did not link that testimony to the particular parts of 17 the record supporting h[is] non-credibility determination.” Brown-Hunter, 806 F.3d at 494. 18 Further, the Court finds that the error was not harmless. After rejecting Plaintiff’s 19 limitation testimony and assessing Plaintiff’s residual functioning capacity almost 20 exclusively on the medical records, the ALJ concluded that Plaintiff was capable of 21 performing light work. But, a hypothetical the ALJ posed to the Vocational Expert is 22 evidence that a different disability conclusion may have been reached had Plaintiff’s 23 testimony been considered. After being presented with a hypothetical that somewhat 24 mirrored Plaintiff’s testimony, the Vocation Expert concluded that under such 25 circumstances the past work of gate guard or other work could not be performed. [A.R. 26 83.] 27 “confidently conclude that no reasonable ALJ, when fully crediting the testimony, could Therefore, this Court cannot find the error was harmless, because it cannot 28 9 16-cv-2806-CAB-DHB 1 have reached a different disability determination.” Stout v. Comm’r, 454 F.3d 1050, 1055- 2 56 (9th Cir. 2006). 3 IV. 4 The Court next addresses the question of remedy. The Court can either remand for 5 further proceedings, or remand for an award of benefits. Because Plaintiff’s entitlement to 6 benefits is not clearly established on the present record, remand for further proceedings is 7 therefore appropriate. Remedy 8 “A district court may ‘revers[e] the decision of the Commissioner of Social Security, 9 with or without remanding the case for a rehearing, but the proper course, except in rare 10 circumstances, is to remand to the agency for additional investigation or explanation.” 11 Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (internal quotation marks and 12 citation omitted). In order to remand a case for an award of benefits a district court must 13 conclude “that further administrative proceedings would serve no useful purpose.” Burrell 14 v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014) (discussing Garrison, 759 F.3d).2 However, 15 “a reviewing court is not required to credit claimant’s allegations regarding the extent of 16 their impairments as true merely because the ALJ made a legal error in discrediting their 17 testimony.” Dominguez, 808 F.3d at 408 (quoting Treichler, 775 F.3d at 1106). See also 18 Burrell, 775 F.3d at 1141 (“[W]e may remand on an open record for further proceedings 19 when the record as a whole creates serious doubt as to whether the claimant is, in fact, 20 disabled within the meaning of the Social Security Act.”) (internal quotation marks and 21 citation omitted); Connett v. Barnhart, 340 F.3d 871, 874-76 (9th Cir. 2003) (finding that 22 a reviewing court retains discretion to remand for further proceedings even when the ALJ 23 fails to assert specific facts or reasons to reject [the claimant]’s testimony”). 24 25 26 27 28 A district court may remand directly for an award of benefits only when: “(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ failed to provide legally sufficient reasons for rejecting evidence; and (3) if the improperly discredited evidence was credited as true, the ALJ would be required to find the claimant disabled on remand.” Garrison, 759 F.3d at 1020. 2 10 16-cv-2806-CAB-DHB 1 Here, remand for further proceedings is appropriate because the Court is unable to 2 conclude that the record is “free from conflicts, ambiguities [and] gaps” and that Plaintiff’s 3 “entitlement to benefits is clear.” Treichler, 755 F.3d at 1103-04. Although the ALJ’s 4 generalized conclusion was erroneous, he may, with or without further development of the 5 record, be able to sufficiently identify and articulate which of Plaintiff’s statements he finds 6 not credible and link the statements to the portions of the evidentiary record that 7 demonstrate the inconsistencies. 8 V. 9 For the reasons discussed above, the Court finds that although the administrative 10 record may support the ALJ’s conclusion, he has failed to provide the necessary reasoning 11 in support of his credibility determination. Accordingly, the Court GRANTS Plaintiff’s 12 motion for summary judgment. Defendant’s cross-motion for summary judgment is 13 DENIED. Conclusion 14 It is therefore ORDERED that the final decision of the Commissioner of Social 15 Security is reversed and the case is REMANDED for further proceedings and additional 16 explanation. 17 18 It is SO ORDERED. Dated: August 11, 2017 19 20 21 22 23 24 25 26 27 28 11 16-cv-2806-CAB-DHB

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