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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JUAN RODRIGUEZ,

Case No.: 16-cv-2806-CAB-DHB
Plaintiff,

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ORDER ON CROSS-MOTIONS FOR
SUMMARY JUDGMENT
[Doc. Nos. 14, 15]

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

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Defendant.

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On November 15, 2016, Plaintiff Juan Rodriguez (“Plaintiff”) filed a complaint

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pursuant to 42 U.S.C. § 405(g) of the Social Security Act requesting judicial review of the

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final decision of the Commissioner of the Social Security Administration (“Commissioner”

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or “Defendant”) regarding the denial of Plaintiff’s claim for disability benefits. [Doc. No.

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1.] On March 31, 2017, Plaintiff filed a motion for summary judgment, requesting the

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Court reverse the Commissioner’s final decision and order the payment of benefits, or,

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alternatively, remand the case for further proceedings. [Doc. No. 14.] On April 28, 2017,

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Defendant filed a cross-motion for summary judgment and an opposition to the Plaintiff’s

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motion, requesting that the Court affirm the Commissioner’s final decision. [Doc. No. 15.]

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For the reasons set for below, Plaintiff’s motion for summary judgment is granted and

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Defendant’s cross-motion for summary judgment is denied. The case is remanded to the

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ALJ for further proceedings consistent with this opinion.
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I.

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On April 15, 2012, Plaintiff filed an application for disability and disability

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insurance benefits under Title II of the Social Security Act, alleging a disability beginning

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on September 13, 2007. [Administrative Record (“A.R.”) at 217-18, 259.] After a denial

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at the initial determination [A.R. at 122) and a denial on reconsideration [A.R. at 139],

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Plaintiff requested and was granted a hearing before an Administrative Law Judge (“ALJ”).

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[Id. at 156-159.]

Background

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On February 17, 2015, a hearing was held on Plaintiff’s claim before ALJ Howard

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Tremlin. [Id. at 59-86.] Plaintiff, who was represented by counsel, appeared and testified

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at the hearing. [Id.] Also appearing and testifying was a vocational expert. [Id.]

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On April 30, 2015, the ALJ issued a decision denying Plaintiff’s claim for benefits.

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[Id. at 29-38.] Applying the five-step, sequential-evaluation process for adjudication of

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disability claims, the ALJ found that Plaintiff met the insured status requirements of the

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Social Security Act through March 31, 2015. [Id. at 32.] The ALJ also found that Plaintiff

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did not engage in substantial gainful activity during the period from the alleged onset date

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of September 13, 2007 through his date last insured of March 31, 2015. [Id. at 32.] Further,

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the ALJ concluded the Plaintiff’s listed impairments, which consisted of “mild

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chrondromalacia; medial femoral condyle with early degenerative changes, left knee,

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status-post left knee arthroscopy with diminished extension; mild thoracic spondylosis with

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mild levoscoliosis; lumbar degenerative disc disease, with mild facet arthritis, L5-S1; and

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complaints of pain in the right hip and right knee” affected him more than minimally, but

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they did not meet or equal the severity of symptoms required under the medical listings.

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[Id. at 32-33.] Additionally, the ALJ held that Plaintiff had the residual functional capacity

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to perform light work, could occasionally lift 20 pounds, climb, kneel, and crouch, and

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could frequently lift 10 pounds, sit, stand, walk for six hours in an eight hour workday, and

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frequently stoop. [Id. at 33.] The ALJ also found that Plaintiff was capable of performing

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his past work as a gate guard. [Id. at 37.] Furthermore, the ALJ found that even upon

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application of grid rule 201.19, at sedentary exertion, the claimant was still not considered
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disabled. [Id. at 37.] Ultimately, the ALJ concluded that Plaintiff was not disabled under

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sections 216(i) and 223(d) of the Social Security Act from April 15, 2012 through March

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31, 2015. [Id. at 38.]

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On May 13, 2015, dissatisfied with the ALJ’s decision, Plaintiff requested review

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with the Appeals Council. [Id. at 23-25.] On September 20, 2016, the Appeals Council

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denied Plaintiff’s request for review thereby casting the ALJ’s decision as the final decision

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of the Commissioner. [Id. at 1-7.]

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Plaintiff commenced this action pursuant to 42 U.S.C. §§ 405(g). On March 31,

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2017, Plaintiff filed the current motion for summary judgment. [Doc. No. 14.] On April

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28, 3017, Defendant filed the cross-motion for summary judgment. [Doc. No. 15.] Both

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parties filed their briefs in opposition. [Doc. Nos. 16, 17.]

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II.

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Under 42 U.S.C. section 405(g), courts review the ALJ's decision to determine

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whether substantial evidence supports the ALJ's findings and if they are free of legal error.

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See Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir.1996); DeLorme v. Sullivan, 924 F.2d

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841, 846 (9th Cir.1991) (ALJ's disability determination must be supported by substantial

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evidence and based on the proper legal standards). The Commissioner’s final decision

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should not be disturbed unless; (1) the ALJ’s finding are based on legal error; or (2) the

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ALJ’s determinations are not supported by substantial evidence in the record as a whole.

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See Schneider v. Comm’r of Soc. Sec. Admin, 223 F.3d 968, 973 (9th Cir. 2000).

Legal Standards

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The reviewing court must follow three important rules when analyzing an ALJ’s

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decision. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). First, the court

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“leave[s] it to the ALJ to determine credibility, resolve conflicts in testimony, and resolve

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ambiguities in the record.” Treichler v. Comm’r of Soc. Sec. Admin, 775 F.3d 1090, 1098

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(9th Cir. 2014). Second, the court should “disturb the Commissioner’s decision to deny

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benefits only if it is not supported by substantial evidence or is based on legal error.” Id.

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(internal quotation marks and citation omitted). Substantial evidence means such relevant

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evidence as a reasonable mind might accept as adequate to support a conclusion. Valentine
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v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). In determining if

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substantial evidence exists, courts must review the record as a whole and consider adverse

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as well as supporting evidence. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th

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Cir.2006). Where evidence can reasonably be construed to support more than one rational

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interpretation, the ALJ's decision must be upheld. See Batson v. Comm’r of the Soc. Sec.

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Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This includes deferring to the ALJ’s

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credibility determinations and resolutions of evidentiary conflicts. Lewis v. Apfel, 236 F.3d

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503, 509 (9th Cir. 2001). “However, a reviewing court must consider the entire record as

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a whole and may not affirm simply by isolating a ‘specific quantum of supporting

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evidence.’” Robbins, 466 F.3d at 882 (quoting Hammock v. Bowen, 879 F.2d 498, 501

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(9th Cir.1989)); Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.2007). Third, the court must

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uphold an ALJ’s decision, even when the ALJ commits legal error if that error is harmless.

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Trechler, 775 F.3dd at 1099.

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III.

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Specifically at issue here is the residual functional capacity determination made by

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the ALJ between steps three and four of the five step sequential evaluation process.

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Plaintiff asserts that when determining his residual functional capacity the ALJ failed to

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articulate specific, clear and convincing reasons for rejecting his testimony. [Doc. No. 14-

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1 at 4-10.] Defendant counters that, based on substantial evidence, the ALJ properly

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assessed Plaintiff’s credibility. [Doc. No. 15-1 at 4-7.]

Discussion

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An ALJ engages in a two-step analysis in determining whether a claimant’s

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testimony regarding subjective pain or symptoms is credible. Molina v. Astrue, 674 F.3d

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1104. 1112 (9th Cir. 2012). “First, the ALJ must determine whether the claimant has

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presented objective medical evidence of an underlying impairment which would

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reasonable be expected to produce pain.” Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir.

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2014). Second, “[i]f the claimant satisfies the first step of this analysis, and there is no

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evidence of malingering, “the ALJ can reject the claimant’s testimony about the severity

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of her symptoms only by offering specific, clear and convincing reasons for doing so.” Id.
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at 1014-1015. This requires the ALJ identify which testimony is not credible and what

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evidence undermines the claimant’s complaints. Lester v. Chater, 81 F.3d 821, 834 (9th

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Cir. 1995).

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The ALJ may consider inconsistencies either in the claimant’s testimony or between

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the testimony and the claimant’s conduct. See Turner v. Comm’r Soc. Sec. Admin, 613

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F.3d 1217, 1224-25 (9th Cir. 2010). The ALJ is required to consider a claimant’s daily

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activities and may reasonably discount a claimant’s subjective complaints where the

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claimant engaged in activities inconsistent with the alleged symptoms. See 20 C.F.R. §§

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404.1529(c)(3), 416.927(c)(3); Molina, 674 F.3d at 1113. Where, as here, a Plaintiff has

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provided evidence of an underlying impairment, the ALJ may “reject the claimant’s

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testimony about the severity of h[is] symptoms only by offering specific, clear and

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convincing reasons for doing so." Brown-Hunter, 806 F.3d at 493 (9th Cir. 2015) (quoting

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Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)).

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Plaintiff alleges disability based on a number of knee, hip and spinal complaints.1

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Neither party disputes the ALJ’s determination that Plaintiff has presented objective

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medical evidence of an underlying impairment which would reasonably be expected to

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produce pain. See Garrison 759 F.3d at 1014. Accordingly, the first prong of the Garrison

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analysis is satisfied. As a consequence, the Court must determine whether the ALJ

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provided specific, clear and convincing reasons for discrediting Plaintiff’s testimony

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concerning his subjective pain that are supported by evidence in the record. The clear and

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convincing standard is “the most demanding required in Social Security cases” and “is not

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an easy requirement to meet.” Garrison, 759 F.3d at 1015 (quoting Moore v. Comm’r of

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Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).

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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.
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Here, the ALJ found that the functional limitations resulting from Plaintiff’s

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impairments were not as intense, persisting and limiting as he alleged. [A.R. at 34.]. In so

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finding, the ALJ noted that Plaintiff’s credibility was diminished because “those

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allegations are greater than expected in light of the objective evidence of record.” [Id. at

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35.] After making this determination the ALJ went on to summarize the medical evidence

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in the record but failed to tie a particular statement he found to be not credible to particular

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medical evidence.

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Beginning in 2007, Plaintiff stopped working after he sustained a work-related injury

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to his left knee when he stepped on a container and twisted his knee when he was working

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at EDCO. On December 10, 2009, Plaintiff underwent a left knee diagnostic arthroscopy,

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left knee medial femoral condyle chondroplasty and left knee major synovectomy. [Id. at

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442-43.] As the ALJ correctly summarized, Plaintiff testified that he has used a cane since

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his knee surgery in 2007 [Id. at 64]; he takes pain medication for pain in his knees, back

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and hips [Id. at 65]; he uses a cane to ambulate [Id. at 72.]; and Plaintiff reported that he

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cannot lift a gallon of milk [Id. at 68]. [Id. at 34.] Plaintiff also stated that he can sit for

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about ten to fifteen minutes and stand and walk ten to fifteen minutes. [Id. at 67-68.]

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Further, Plaintiff described his activities on a daily basis, including feeding his dogs and

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watering the plants. [Id. at 72]. Plaintiff also testified that he has difficulty getting dressed,

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needs help showering, and lies down four times a day for about thirty - forty-five minutes

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at a time. [Id. at 69, 75.] Additionally, Plaintiff asserted that he suffers from diabetes,

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sometimes feels dizzy and nauseous, has problems with his eyes, and utilizes back support

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and a knee brace on his left knee. [Id. at 65-67, 72.]

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The ALJ identified a number of statements made by Dr. Harris in 2010 and 2011

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that repeatedly recommended Plaintiff be placed on light work duty that consisted of

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sedentary work. [Id. at 34-35, 444-45, 571, 589-592, 640.] The ALJ also noted that in a

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November 23, 2010 re-examination report, Dr. Murphy concluded that Plaintiff continued

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to be permanent and stationary, and his work status remained light. [Id. at 35, 566-576.]

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In addition, the ALJ summarized the medical examiner’s report submitted by Dr. Hall,
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dated September 19, 2012, who recommended Plaintiff be fitted for a valgus unloading

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type brace; utilize a cane; use anti-inflammatory medications; and ice his knee. [Id. at 35,

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639, 674-77.] The ALJ also cited the November 2, 2014 and January 12, 2015, treatment

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records from Borrego Centro Medico which indicate that Plaintiff was obese with a BMI

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of 31, a pre-diabetic who was not in acute distress, was not feeling tired or poorly, had no

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blurry vision, had no dizziness and was advised on diet and exercise. [Id. at 35, 683-85,

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724-25.]

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Further, the ALJ read and gave great weight to the findings within a pre-hearing

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consultative examination performed by Dr. Sabourin, a Board certified orthopedic surgeon,

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who evaluated Plaintiff on June 4, 2013. Dr. Sabourin determined that despite his

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conditions Plaintiff was not precluded from performing a significant range of light

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exertional capacity. [Id. at 624-629] After performing a physical examination Dr.

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Sabourin reported that Plaintiff had some disproportion in regards to the severity and

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duration of his complaints, had surgery on his left knee showing some chondormalacia,

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with some atrophy in the left leg and decreased range of motion, and also complained of

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back pain that Plaintiff related to a 1999 work-related injury that caused two discs to

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herniate. [Id.] Dr. Sabourin opined that Plaintiff was able to: occasionally lift and/or carry

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twenty pounds, climb kneel and crouch; frequently lift and/or carry ten pounds and stoop;

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sit, stand, and/or walk for six hours in an eight-hour workday; and that he did not need an

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assistive device to ambulate. [Id. at 628.] The ALJ also correctly noted that Dr. Sabourin

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reported that during the examination Plaintiff was:

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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

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July 29, 2012. [Id. at 36-37.] The ALJ correctly summarized Dr. Moazzaz’s finding that

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Plaintiff was not precluded from performing light exertional work, despite conditions of

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status-post left knee arthroscopy with diminished extension and degenerative disc disease.

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[Id. at 37, 611-617.] Dr. Moazzaz found that Plaintiff presented with a history of low back,

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left knee pain, and degenerative changes of the lumbar spine, was lacking range of motion

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of the left knee following two arthroscopies, but had an intact neurological exam with a

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negative straight leg raise test. [Id. at 611-614.] Dr. Moazzaz opined that Plaintiff was:

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able to lift and/or carry twenty pounds occasionally and ten pounds frequently; sit, stand,

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and/or walk for six hours in an eight-hour workday; occasionally bend, kneel, stoop, crawl

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and crouch; not subject to restrictions with overhead activities and could fully use his hands

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for fine and gross manipulative movements; and did not need an assistive device to

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ambulate. [Id. at 615.]

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However, “although the ALJ summarized a significant portion of the administrative

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record in support of h[is] RFC determination” he did not provide “clear and convincing

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reasons for finding the claimant’s symptom testimony not credible.” Brown-Hunter, 806

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F.3d at 494. Here, the ALJ determined that:

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[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.

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A.R. 34.

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evidence, the ALJ did not specifically identify which of Plaintiff’s statements he did not

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find credible and why, nor did he explain what evidence in the record undermines

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Plaintiff’s complaints. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“General

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findings are insufficient, rather, the ALJ must identify what testimony is not credible and

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what evidence undermines the claimant’s complaints.”); Holohan v. Massanari, 246 F.3d

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1195, 1208 (9th Cir. 2001) (“the ALJ must specifically identify the testimony she or he

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finds not be credible and must explain what evidence undermined the testimony”).

After stating his non-credibility conclusion and summarizing the medical

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This is precisely the type of general conclusory statement that the Ninth Circuit has

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held to be insufficient. See, e.g., Treichler, 775 F.3d at 1102 (holding that the ALJ erred

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by making only a “single general statement that ‘the claimant’s statements concerning the

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intensity, persistence and limiting effects of these symptoms are not credible to the extent

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they are inconsistent with the above residual functional capacity assessment.”); Brown-

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Hunter, 806 F.3d at 493-494 (holding ALJ’s general statement that “she found, based on

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unspecified claimant testimony and a summary of medical evidence, that “the functional

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limitations from the claimant’s impairments were less serious than she has alleged”

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insufficient because they failed to identify which of claimants statements are she found to

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be not credible and why). While it could be inferred that the specific portions of the

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medical records identified by the ALJ were the contradictory evidence and conclusions he

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used in making his determination, this is not enough. Rather, the ALJ is required to connect

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the contradictory evidence to specific statements made by Plaintiff; by not doing so he has

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failed to provide the basic information necessary to ensure meaningful judicial review.

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Thus, the Court finds the ALJ committed legal error because he “failed to identify the

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testimony []he found not credible, []he did not link that testimony to the particular parts of

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the record supporting h[is] non-credibility determination.” Brown-Hunter, 806 F.3d at 494.

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Further, the Court finds that the error was not harmless. After rejecting Plaintiff’s

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limitation testimony and assessing Plaintiff’s residual functioning capacity almost

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exclusively on the medical records, the ALJ concluded that Plaintiff was capable of

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performing light work. But, a hypothetical the ALJ posed to the Vocational Expert is

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evidence that a different disability conclusion may have been reached had Plaintiff’s

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testimony been considered. After being presented with a hypothetical that somewhat

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mirrored Plaintiff’s testimony, the Vocation Expert concluded that under such

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circumstances the past work of gate guard or other work could not be performed. [A.R.

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83.]

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“confidently conclude that no reasonable ALJ, when fully crediting the testimony, could

Therefore, this Court cannot find the error was harmless, because it cannot

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have reached a different disability determination.” Stout v. Comm’r, 454 F.3d 1050, 1055-

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56 (9th Cir. 2006).

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IV.

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The Court next addresses the question of remedy. The Court can either remand for

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further proceedings, or remand for an award of benefits. Because Plaintiff’s entitlement to

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benefits is not clearly established on the present record, remand for further proceedings is

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therefore appropriate.

Remedy

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“A district court may ‘revers[e] the decision of the Commissioner of Social Security,

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with or without remanding the case for a rehearing, but the proper course, except in rare

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circumstances, is to remand to the agency for additional investigation or explanation.”

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Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (internal quotation marks and

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citation omitted). In order to remand a case for an award of benefits a district court must

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conclude “that further administrative proceedings would serve no useful purpose.” Burrell

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v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014) (discussing Garrison, 759 F.3d).2 However,

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“a reviewing court is not required to credit claimant’s allegations regarding the extent of

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their impairments as true merely because the ALJ made a legal error in discrediting their

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testimony.” Dominguez, 808 F.3d at 408 (quoting Treichler, 775 F.3d at 1106). See also

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Burrell, 775 F.3d at 1141 (“[W]e may remand on an open record for further proceedings

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when the record as a whole creates serious doubt as to whether the claimant is, in fact,

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disabled within the meaning of the Social Security Act.”) (internal quotation marks and

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citation omitted); Connett v. Barnhart, 340 F.3d 871, 874-76 (9th Cir. 2003) (finding that

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a reviewing court retains discretion to remand for further proceedings even when the ALJ

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fails to assert specific facts or reasons to reject [the claimant]’s testimony”).

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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.
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Here, remand for further proceedings is appropriate because the Court is unable to

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conclude that the record is “free from conflicts, ambiguities [and] gaps” and that Plaintiff’s

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“entitlement to benefits is clear.” Treichler, 755 F.3d at 1103-04. Although the ALJ’s

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generalized conclusion was erroneous, he may, with or without further development of the

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record, be able to sufficiently identify and articulate which of Plaintiff’s statements he finds

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not credible and link the statements to the portions of the evidentiary record that

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demonstrate the inconsistencies.

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V.

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For the reasons discussed above, the Court finds that although the administrative

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record may support the ALJ’s conclusion, he has failed to provide the necessary reasoning

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in support of his credibility determination. Accordingly, the Court GRANTS Plaintiff’s

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motion for summary judgment. Defendant’s cross-motion for summary judgment is

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DENIED.

Conclusion

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It is therefore ORDERED that the final decision of the Commissioner of Social

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Security is reversed and the case is REMANDED for further proceedings and additional

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explanation.

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It is SO ORDERED.
Dated: August 11, 2017

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