Nunes v. Colvin

Filing 20

ORDER adopting and accepting in full ECF No. 17 Report and Recommendation; granting Plaintiff's ECF No. 12 Motion to Remand; denying the Commissioner's ECF No. 13 Cross Motion to Affirm; remanding case to ALJ for further proceedings; directing Clerk to close case. Signed by Judge Miranda M. Du on 5/26/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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GERALDEAN NUNES,
Plaintiff,

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Case No. 3:14-cv-00575-MMD-WGC

v.
CAROLYN W. COLVIN,
Commissioner of Social Security
Administration,

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ORDER ACCEPTING AND ADOPTING
REPORT AND RECOMMENDATION
OF MAGISTRATE JUDGE
WILLIAM G. COBB

Defendant.

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I.

BACKGROUND AND SUMMARY

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Before the Court is Magistrate Judge William G. Cobb’s Report and

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Recommendation (“R&R”) (ECF No. 17) regarding Plaintiff Geraldean Nunes’ (“Nunes”)

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Motion for Remand or Reversal of the Commissioner’s Decision (ECF N. 12) and

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Defendant Commissioner Carolyn W. Colvin’s (“the Commissioner”) Opposition and

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Cross-Motion to Affirm. (ECF No. 13.)

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The following relevant background facts are taken from the R&R. Nunes filed

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applications for Social Security Disability Insurance Benefits (“DIB”) and Supplemental

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Security Income (SSI) on January 28, 2011, and February, 7, 2011. The Social Security

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Administration (SSA) denied Nunes’ applications upon initial review and again upon

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reconsideration. Nunes then appeared before an administrative law judge (“ALJ”) on

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February 11, 2013. The ALJ issued a decision on April 20, 2013, finding that Nunes was

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not disabled for the purposes of her applications. Nunes’ request for review was denied

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by the Appeals Council. She then sought review from this Court.

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Magistrate Judge Cobb issued the R&R on February 9, 2016, concluding that the

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ALJ erred in ignoring medical opinions and in assessing Nunes’ credibility. The R&R

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recommends that the matter be remanded back to the ALJ for further proceedings.1

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(ECF No. 17.) The Commissioner timely filed an objection (ECF No. 18) and Plaintiff filed

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a response. (ECF No. 19.) The Court has also reviewed the administrative record

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manually filed by the Commissioner.2 (ECF No. 9.) For the reasons stated below, the

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R&R is accepted and adopted in full.

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II.

LEGAL STANDARD

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party

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timely objects to a magistrate judge’s report and recommendation, then the court is

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required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). In light of the

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Commissioner’s objection, the Court engages in a de novo review of the two portions of

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the R&R relevant to the objection.

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Congress has provided a limited scope of judicial review of the Commissioner's

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decision to deny benefits under the Social Security Act. In reviewing findings of fact, the

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Court must determine whether the decision of the Commissioner is supported by

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substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence is more than a mere

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scintilla but less than a preponderance; it is such relevant evidence as a reasonable

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mind might accept as adequate to support a conclusion.” Gutierrez v. Comm’r Soc. Sec.,

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740 F.3d 519, 522–23 (9th Cir. 2014) (quoting Hill v. Astrue, 698 F.3d 1153, 1159 (9th

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Cir. 2012)). The Court must consider the entire record as a whole to determine whether

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The R&R further details the procedural history of Nunes’ claims, a complete
summary of the ALJ’s findings and relevant testimony, and the applicable standards set
out by the Social Security Act. (ECF No. 17 at 1-6.) These portions of the R&R are not in
dispute, and the Court adopts them in full. See United States v. Reyna-Tapia, 328 F.3d
1114 (9th Cir. 2003) (a district court is not required to review a magistrate judge’s report
and recommendation where no objections have been filed).
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For ease of reference, the Court will cite to the administrative record as AR.
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substantial evidence exists, and must consider evidence that both supports and

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undermines the ALJ’s decision. Gutierrez, 740 F.3d at 523 (citation omitted). In weighing

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the evidence and making findings, the Commissioner must also apply the proper legal

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standards. Id. (citing Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir.

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2009); Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003)).

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III.

ANALYSIS

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The R&R finds that the ALJ erred in two ways. First, the ALJ did not provide

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adequate reasons for disregarding a medical opinion, and second, the ALJ discredited

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Nunes’ own subjective testimony without citing clear and convincing reasons based on

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substantial evidence in the record.

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Specifically, the R&R finds that the ALJ did not provide reasons for partially

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rejecting the uncontradicted opinion of Dr. Steven Gerson, D.O., who suggested that

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Nunes was limited to 4 hours of standing or walking in a given workday. Instead, the ALJ

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found that Nunes was able to stand and walk for 6 hours during a workday. This

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improperly supported finding led the ALJ to conclude that Nunes has the residual

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functional capacity to perform light work. (ECF No. 17 at 15-16.) The R&R additionally

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states that the ALJ erred because she did not set forth specific, clear, and convincing

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reasons for rejecting Plaintiff’s testimony as to the severity of her symptoms.

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The R&R thus recommends that the Court deny the Commissioner’s Cross-

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Motion to Affirm (ECF No. 16) and grant Plaintiff’s Motion for Remand. (ECF No. 13.)

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The R&R recommends that the case be remanded to the ALJ for further proceedings.

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A.

Medical Opinion of Dr. Gerson

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The Court first considers whether the ALJ erred in giving little weight to Dr.

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Gerson’s opinion that Nunes was limited to 4 hours of standing or walking and 6 hours of

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sitting during a workday. While it is true that the ALJ may disregard the opinions of

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medical experts, the ALJ must articulate the rejection and the reasons for doing so.

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Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989); see also Garrison v. Colvin,

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759 F.3d 995, 1012 (9th Cir. 2014). “[A]n ALJ errs when he rejects a medical opinion or
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assigns it little weight while doing nothing more than ignoring it, asserting without

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explanation that another medical opinion is more persuasive, or criticizing it with

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boilerplate language that fails to offer a substantive basis for his conclusion.” Garrison,

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759 at 1012-13 (citing Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996)). When a

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treating or examining physician’s opinion is not contradicted, “the ALJ must provide

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‘clear and convincing reasons that are supported by substantial evidence” for rejecting

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the opinion. Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014) (citation and

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quotation marks omitted); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (citation

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omitted).

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In her determination, the ALJ noted that she was taking into account “claimant’s

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daily activities . . . inconsistent reports of pain and some notations of full range of motion

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of the back and ambulation with a normal gait.” (AR at 30.) The R&R concludes that the

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ALJ’s explanation was not supported by substantial evidence, and points to numerous

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examples from the record of Nunes’ consistent reports of pain and an abnormal gate.

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(ECF No. 17 at 15.) The R&R also concluded that Nunes’ testimony about her daily

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activities, though it includes some physical activity, is largely consistent with Dr.

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Gerson’s finding that she could stand or walk for no more than 4 hours during a work

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day. (Id. at 10.)

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The Commissioner argues that the ALJ’s decision was correct and supported by

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substantial evidence, including assessments and recommendations from Nunes’ treating

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physicians. (ECF No. 18 at 3-4.) The portions of the AR that the Commissioner cites,

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however, do not directly conflict with Dr. Gerson’s conclusions and in a number of places

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support them. For example, the Commissioner cites reports from Dr. Michael J. Murray.

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(ECF No. 18 at 3 (citing AR 476-80).) While these reports indicate that Nunes was “well-

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developed, well nourished . . . in no acute distress,” they also indicate that she suffers

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from significant pain, nausea, and other complications. (Id.) There is nothing in the

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portions of the AR that the Commissioner cites to that indicate Dr. Gerson’s opinions

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were incorrect. And even if there was, the ALJ was obligated to “[set] out a detailed and
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thorough summary of the facts and conflicting clinical evidence, stating [her]

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interpretation thereof.” Garrison, 759 F.3d at 1012. The R&R was correct in determining

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that the ALJ opinion failed to meet this standard.

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Therefore, the Court agrees with the R&R that the ALJ erred in setting aside Dr.

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Gerson’s conclusion that Nunes was limited to 4 hours of standing during a workday

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without justifying her decision to do so with specific reasons based on substantial

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evidence.

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B.

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The Court next considers whether the ALJ erred in her assessment of Nunes’

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credibility. The ALJ found that Nunes’ statements concerning her symptoms were not

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entirely credible based on the objective medical evidence, Nunes’ daily activities, and

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inconsistencies in the record. (AR at 29.) The R&R addressed each of these claims in

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turn and concluded that the ALJ’s determination was not supported by clear and

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convincing reasons based on substantial evidence. (ECF No. 17 at 21.) The

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Commissioner argues that the Magistrate Judge was improperly acting as a fact finder,

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and the ALJ correctly relied on relevant evidence in the record. (ECF No. 18 at 8.)

Plaintiff’s Testimony

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The ALJ is responsible for determining credibility. Meanel v. Apfel, 172 F.3d 1111,

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1113 (9th Cir. 1999). The ALJ must first “determine whether the claimant has presented

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objective medical evidence of an underlying impairment which could reasonably be

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expected to produce the pain or other symptoms alleged.” Lingenfelter v. Astrue, 504

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F.3d 1028, 1036 (9th Cir. 2007). “If the claimant meets the first test and there is no

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evidence of malingering, the ALJ may only reject the claimant’s testimony about the

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severity of the symptoms if he or she gives ‘specific, clear and convincing reasons’ for

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the rejection.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (quoting

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Lingenfelter, 504 F.3d at 1036). An ALJ’s findings are supported by substantial evidence

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if they are “sufficiently specific to allow a reviewing court to conclude the adjudicator

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rejected the claimant’s testimony on permissible grounds and did not arbitrarily discredit

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a claimant’s testimony regarding pain.” Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th
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Cir. 1991). “[T]he claimant is not required to show ‘that her impairment could reasonably

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be expected to cause the severity of the symptom she has alleged; she need only show

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that it could reasonably have caused some degree of the symptom.’” Garrison, 759 F.3d

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at 1014 (emphasis in original) (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir.

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1996)). The ALJ may not reject subjective pain testimony "on the sole ground that it is

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not fully corroborated by objective medical evidence[.]" Rollins v. Massanari, 261 F.3d

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853, 857 (9th Cir. 2001).

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The R&R found each of the ALJ’s bases for discrediting Nunes’ testimony lacking.

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First, the R&R cited a long list of medical evidence supporting Nunes’ claim that her

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lumbar spine condition has worsened since 2002. (ECF No. 17 at 19-20.) The

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Commissioner suggests that even if there is medical evidence that Nunes’ condition has

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worsened over time, this does not “equate with disability.” (ECF No. 18 at 5.) Of course,

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this may be true, but the relevant inquiry here is whether the medical evidence creates a

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basis for finding the existence of an impairment which “could reasonably be expected to

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produce the pain or other symptoms alleged.” Lingenfelter, v. 504 F.3d at 1036. Here,

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the ALJ discredited Nunes’ statements about the “intensity, persistence, and limiting

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effects” of her symptoms even though, as the R&R identified, there was a clear and well

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documented history of back pain stemming from a worsening back condition. (AR at 29.)

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The R&R was correct in concluding that the evidence showed that the ALJ erred in

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finding that Nunes’ subjective symptoms lacked evidence in the objective record.

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Next, the R&R noted that the ALJ’s general finding that Nunes’ daily activities

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were inconsistent with her testimony about her condition was imprecise and not

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supported by the record. (ECF No. 17 at 20.) The R&R correctly indicated that Nunes

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testified she was able to perform some household tasks, such as prepare simple meals

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and retrieve the mail, and correctly concluded that these behaviors did not conflict with

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her testimony. At the very least, the R&R found, the ALJ had not indicated which

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activities conflicted with which portion of Nunes’ testimony. For those reasons, the R&R

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appropriately concluded that the ALJ was also mistaken in discrediting Nunes’ testimony
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based on reports of her daily activities. The Court agrees with the R&R on this ground as

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well.

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Third, the R&R correctly found that, while there were some inconstancies in Dr.

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Gerson’s report concerning Nunes’ claims about her range of motion in her shoulders

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and arms, there were no inconsistencies in regards to her back pain. (ECF No. 17 at 21.)

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The Commissioner argues that if Nunes was inconsistent in the presentation of any of

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her symptoms, the ALJ was justified in making a blanket finding that her testimony was

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unreliable. (ECF No. 18 at 6-7.) As an initial matter, this argument is in tension with the

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Ninth Circuit’s requirement that the ALJ’s explanations be “sufficiently specific to allow a

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reviewing court to conclude the adjudicator rejected the claimant’s testimony on

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permissible grounds and did not arbitrarily discredit a claimant’s testimony regarding

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pain.” Bunnell, 947 F.2d at 345-46. Beyond that, it is not clear from the record that such

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a conclusion is warranted from the inconsistencies the Commissioner points out, and it is

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certainly not spelled out by the ALJ specifically, clearly, or convincingly. The Court also

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agrees with the R&R on this factor.

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Lastly, the Commissioner briefly argues that the magistrate judge failed to take

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into account new arguments not relied upon by the ALJ in evaluating Nunes’ credibility.

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Namely, the Commissioner argues that Nunes’ testimony that she had received

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unemployment benefits undermines the credibility of her claim that she was unable to

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work. (ECF No. 13 at 13.) While the Commissioner is correct that the Ninth Circuit has

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recognized that the Commissioner may, in a limited way, provide “additional support” for

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the ALJ’s conclusions, see See Warre v. Comm’r of Soc. Sec., 439 F.3d at 1001, 1005,

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n.3 (9th Cir. 2006), collecting unemployment benefits is only inconsistent with Nunes’

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claims if she held herself as available to work full time. See Carmickle v. Comm'r, Soc.

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Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008). The record here, like the record in

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Carmickle, does not establish that fact. Therefore, the additional argument that the

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Commissioner has provided is unpersuasive.

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For these reasons, the Court agrees with the R&R’s analysis and finds that the

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ALJ did not provide specific, clear, and convincing reasons for rejecting Plaintiff’s

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subjective symptom testimony.

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IV.

CONCLUSION

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It is therefore ordered that the Report and Recommendation of Magistrate Judge

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William G. Cobb (ECF No. 17) is accepted and adopted in full. Plaintiff’s Motion to

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Remand (ECF No. 12) is granted. Defendant Commissioner Carolyn W. Colvin’s

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Opposition and Cross-Motion to Affirm (ECF No. 13) is denied.

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This case is remanded to the ALJ for further proceedings. The Clerk is directed to
close this case.

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DATED THIS 26th day of May 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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