Ricardo Abraham v. Nancy A. Berryhill ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RICARDO A.,1 Case No. CV 18-08142-RAO 12 Plaintiff, 13 v. MEMORANDUM OPINION AND 14 ORDER ANDREW M. SAUL, Commissioner of 15 Social Security, 16 Defendant. 17 18 I. INTRODUCTION 19 Plaintiff Ricardo A. (“Plaintiff”) challenges the Commissioner’s denial of his 20 application for a period of disability and disability insurance benefits (“DIB”). For 21 the reasons stated below, the decision of the Commissioner is REVERSED and 22 REMANDED. 23 II. PROCEEDINGS BELOW 24 On May 29, 2015, Plaintiff applied for DIB alleging disability beginning 25 October 30, 2014. (Administrative Record (“AR”) 50-52.) His application was 26 27 1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 28 Management of the Judicial Conference of the United States. 1 denied on November 23, 2015. (AR 68.) Plaintiff filed a written request for hearing, 2 and a hearing was held on September 14, 2017. (AR 31, 120.) Represented by 3 counsel, Plaintiff appeared and testified, along with an impartial vocational expert. 4 (AR 33-49.) On October 18, 2017, the Administrative Law Judge (“ALJ”) found that 5 Plaintiff had not been under a disability, pursuant to the Social Security Act,2 from 6 October 30, 2014 through the date of decision. (AR 26.) The ALJ’s decision became 7 the Commissioner’s final decision when the Appeals Council denied Plaintiff’s 8 request for review. (AR 1.) Plaintiff filed this action on September 20, 2018. (Dkt. 9 No. 1.) 10 The ALJ followed a five-step sequential evaluation process to assess whether 11 Plaintiff was disabled under the Social Security Act. See Lester v. Chater, 81 F.3d 12 821, 828 n.5 (9th Cir. 1995). At step one, the ALJ found that Plaintiff had not 13 engaged in substantial gainful activity since October 30, 2014, the alleged onset date 14 (“AOD”). (AR 20.) At step two, the ALJ found that Plaintiff has the following 15 severe impairments: degenerative disc disease; scoliosis; osteoarthritis of the knees; 16 left shoulder arthritis; left thumb osteoarthritis; obesity; diabetes mellitus; 17 hypertension; hyperlipidemia; atrial fibrillation; and congestive heart failure, status 18 post surgical aortic valve replacement. (Id.) At step three, the ALJ found that 19 Plaintiff “does not have an impairment or combination of impairments that meets or 20 medically equals the severity of one of the listed impairments in 20 CFR Part 404, 21 Subpart P, Appendix 1.” (AR 21.) 22 Before proceeding to step four, the ALJ found that Plaintiff had the residual 23 functional capacity (“RFC”) to: 24 [L]ift and carry and push and pull 10 pounds occasionally and 10 pounds frequently; can stand and/or walk for 2 hours in an 8-hour day 25 26 2 Persons are “disabled” for purposes of receiving Social Security benefits if they are 27 unable to engage in any substantial gainful activity owing to a physical or mental impairment expected to result in death, or which has lasted or is expected to last for 28 a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A). 1 scaffolds; occasionally climb ramps and stairs; and occasionally 2 balance, stoop, kneel, crouch, and crawl. 3 (Id.) 4 At step four, the ALJ found that Plaintiff was capable of performing past 5 relevant work as a mutual fund investment representative, and thus the ALJ did not 6 continue to step five. (AR 25.) Accordingly, the ALJ determined that Plaintiff has 7 not been under a disability from the AOD through the date of decision. (AR 26.) 8 III. STANDARD OF REVIEW 9 Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s 10 decision to deny benefits. A court must affirm an ALJ’s findings of fact if they are 11 supported by substantial evidence and if the proper legal standards were applied. 12 Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). “‘Substantial evidence’ 13 means more than a mere scintilla, but less than a preponderance; it is such relevant 14 evidence as a reasonable person might accept as adequate to support a conclusion.” 15 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. 16 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). An ALJ can satisfy the substantial 17 evidence requirement “by setting out a detailed and thorough summary of the facts 18 and conflicting clinical evidence, stating his interpretation thereof, and making 19 findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation omitted). 20 “[T]he Commissioner’s decision cannot be affirmed simply by isolating a 21 specific quantum of supporting evidence. Rather, a court must consider the record 22 as a whole, weighing both evidence that supports and evidence that detracts from the 23 Secretary’s conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) 24 (citations and internal quotation marks omitted). “‘Where evidence is susceptible to 25 more than one rational interpretation,’ the ALJ’s decision should be upheld.” Ryan 26 v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing Burch v. 27 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)); see Robbins, 466 F.3d at 882 (“If the 28 1 evidence can support either affirming or reversing the ALJ’s conclusion, we may not 2 substitute our judgment for that of the ALJ.”). The Court may review only “the 3 reasons provided by the ALJ in the disability determination and may not affirm the 4 ALJ on a ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th 5 Cir. 2007) (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). 6 IV. DISCUSSION 7 Plaintiff raises a single issue for review: whether the ALJ properly considered 8 Plaintiff’s testimony. (See Joint Submission (“JS”) 4.) For the reasons below, the 9 Court agrees with Plaintiff and remands the matter for further proceedings. 10 A. The ALJ’s Credibility Determination Is Not Supported By 11 Substantial Evidence 12 Plaintiff argues that the ALJ failed to provide legally sufficient reasons for 13 rejecting his subjective testimony. (See JS 4-11.) The Commissioner contends that 14 the ALJ properly evaluated Plaintiff’s testimony. (See JS 12-17.) 15 1. Plaintiff’s Testimony 16 Plaintiff testified that he had his aortic valve replaced in August 2016. (AR 17 35.) He was advised by his doctor to exercise on a treadmill for his heart. (AR 36.) 18 Plaintiff explained that he gets tired, and after about 10 minutes, he needs to take a 19 break. (Id.) Plaintiff sometimes walks between 20 and 45 minutes by walking in 20 intervals. (Id.) He stated that sometimes it takes him two hours to complete 45 21 minutes of walking. (Id.) 22 Plaintiff lives alone in a small first-floor apartment. (AR 37.) A maid cleans 23 his apartment once a week. (Id.) When Plaintiff has a good day, he prepares one 24 meal that lasts for three or four days. (Id.) 25 Plaintiff drove to the hearing. (Id.) He explained that he has bad days and 26 good days, and on bad days, he cannot drive. (Id.) 27 /// 28 /// 1 Plaintiff stated that he spends his time trying to read or doing something 2 productive. (AR 39.) He goes to the library one to three times a week to attend a 3 support group for people who are lonely. (AR 39-40.) 4 Plaintiff stopped working in January 2015 because he injured his knee while 5 working as a security guard. (AR 40.) His knee no longer causes him problems 6 because he lost some weight and went to therapy. (Id.) 7 Plaintiff testified that he can no longer work now due to fatigue caused by his 8 heart. (AR 41.) Plaintiff also has dizziness, loss of concentration, and inability to 9 focus. (Id.; AR 42.) 10 Plaintiff sometimes gets tired while sitting. (AR 42.) He then needs to stand 11 or lie down. (Id.) On a bad day, after doing something for 30 to 40 minutes, Plaintiff 12 needs to lie down for 20 or 30 minutes. (Id.) Plaintiff has two to four bad days each 13 week. (Id.) 14 2. Applicable Legal Standards 15 “In assessing the credibility of a claimant’s testimony regarding subjective 16 pain or the intensity of symptoms, the ALJ engages in a two-step analysis.” Molina 17 v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citing Vasquez v. Astrue, 572 F.3d 18 586, 591 (9th Cir. 2009)). “First, the ALJ must determine whether the claimant has 19 presented objective medical evidence of an underlying impairment which could 20 reasonably be expected to produce the pain or other symptoms alleged.” Treichler v. 21 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting 22 Lingenfelter, 504 F.3d at 1036) (internal quotation marks omitted). If so, and if the 23 ALJ does not find evidence of malingering, the ALJ must provide specific, clear and 24 convincing reasons for rejecting a claimant’s testimony regarding the severity of his 25 symptoms. Id. The ALJ must identify what testimony was found not credible and 26 explain what evidence undermines that testimony. Holohan v. Massanari, 246 F.3d 27 1195, 1208 (9th Cir. 2001). “General findings are insufficient.” Lester, 81 F.3d at 28 834. 1 3. Discussion 2 “After careful consideration of the evidence,” the ALJ found that Plaintiff’s 3 “severe impairments can reasonably be expected to cause some functional 4 limitations,” but found that “the extent of the alleged symptoms and functional 5 restrictions are not entirely consistent with the medical evidence and other evidence 6 in the record.” (AR 22.) The ALJ relied on the following reasons: (1) conservative 7 treatment; (2) activities of daily living; and (3) lack of objective medical evidence to 8 support the alleged severity of symptoms. (See AR 22-24.) No malingering 9 allegation was made, and therefore, the ALJ’s reasons must be “clear and 10 convincing.” 11 a. Reason No. 1: Conservative Treatment 12 An ALJ may discount a claimant’s testimony based on routine and 13 conservative treatment. See Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) 14 (“[E]vidence of ‘conservative treatment’ is sufficient to discount a claimant’s 15 testimony regarding severity of an impairment.”); see also Meanel v. Apfel, 172 F.3d 16 1111, 1114 (9th Cir. 1999) (rejecting a plaintiff’s complaint “that she experienced 17 pain approaching the highest level imaginable” as “inconsistent with the ‘minimal, 18 conservative treatment’ that she received”). 19 Here, the ALJ observed that “only conservative treatment has been used to 20 treat [Plaintiff’s] knees,” consisting of medications, hot/cold therapy, chiropractic 21 care, acupuncture, and physical therapy. (AR 22.) However, this conservative 22 treatment relates only to Plaintiff’s knees, and this evidence is in fact consistent with 23 Plaintiff’s testimony that his knee no longer causes him problems after he lost weight 24 and went to therapy. (AR 40.) At the hearing, Plaintiff testified that it is primarily 25 his fatigue due to his heart issues, his dizziness, and his inability to focus that prevent 26 him from working. (AR 41.) The evidence of conservative treatment and 27 improvement with respect to Plaintiff’s knees is not a legitimate reason to discredit 28 Plaintiff’s subjective complaints about other symptoms and limitations. 1 The ALJ also noted Plaintiff’s other treatment history in passing while 2 summarizing the medical records. (See AR 23-24.) Specifically, the ALJ noted 3 Plaintiff’s “conservative management” of his back, left shoulder, and left thumb 4 conditions; “well-controlled” diabetes mellitus; “well-maintained” hypertension and 5 hyperlipidemia; and “stable” congestive heart failure. (Id.) But the ALJ did not 6 connect any evidence to Plaintiff’s symptoms or testimony. The ALJ must explain 7 which symptoms are inconsistent with the evidence of record and must explain how 8 his evaluation of the symptoms led to that conclusion. See SSR 16-3p, 2016 WL 9 1119029, at *8 (S.S.A. Mar. 16, 2016); Holohan, 246 F.3d at 1208 (“[T]he ALJ must 10 specifically identify the testimony she or he finds not to be credible and must explain 11 what evidence undermines the testimony.”). The determination must contain specific 12 reasons for the weight given to the individual’s symptoms and must clearly articulate 13 how the ALJ evaluated the claimant’s symptoms. 2016 WL 1119029, at *9; see 14 Lester, 81 F.3d at 834 (“General findings are insufficient.”). 15 The Court finds that this reason is not a clear and convincing reason, supported 16 by substantial evidence, to discount Plaintiff’s subjective testimony. 17 b. Reason No. 2: Activities of Daily Living 18 Inconsistencies between symptom allegations and daily activities may act as a 19 clear and convincing reason to discount a claimant’s credibility. See Tommasetti v. 20 Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Bunnell v. Sullivan, 947 F.2d 341, 346 21 (9th Cir. 1991). But a claimant need not be utterly incapacitated to obtain benefits. 22 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). “If a claimant is able to spend a 23 substantial part of his day engaged in pursuits involving the performance of physical 24 functions that are transferable to a work setting, a specific finding as to this fact may 25 be sufficient to discredit a claimant’s allegations.” Morgan v. Comm’r of Soc. Sec. 26 Admin., 169 F.3d 595, 600 (9th Cir. 1999); accord Vertigan v. Halter, 260 F.3d 1044, 27 1050 (9th Cir. 2001). 28 /// 1 The ALJ found that Plaintiff’s activities of daily living “appear compatible 2 with the ability to sustain the work activities within the confines of the [RFC].” (AR 3 25.) The ALJ noted Plaintiff’s regular exercise with breaks, ability to live alone and 4 care for himself, ability to prepare meals, ability to drive, and participation in support 5 groups. (Id.) 6 The fact that Plaintiff performs some daily activities does not detract from his 7 overall credibility, as the record does not show that this consumes a substantial part 8 of Plaintiff’s day. Plaintiff stated that on a good day, he prepares one meal that lasts 9 for three or four days. (AR 37.) It is not clear that Plaintiff’s occasional meal 10 preparation requires a substantial amount of time or effort, and the ALJ failed to 11 explain how this translates into an ability to perform regularly in the workplace. See 12 Orn, 495 F.3d at 639 (stating that an ALJ erred in rejecting a claimant’s testimony 13 due to daily activities that were “so undemanding that they cannot be said to bear a 14 meaningful relationship to the activities of the workplace”). Similarly, the ALJ failed 15 to explain how Plaintiff’s ability to live alone, drive on good days, and participate in 16 a support group translates to a work setting or is otherwise inconsistent with his 17 alleged limitations. See Lanway v. Colvin, No. C13-5155BHS, 2014 WL 989256, at 18 *8 (W.D. Wash. Mar. 13, 2014) (claimant “has no problems with personal care, . . . 19 prepares simple meals, . . . drives, does laundry, and handles his own finances,” but 20 the ALJ erred in failing to discuss transferability or contradictions with other 21 testimony); cf. Karie K. v. Comm’r of Soc. Sec., No. 6:17-CV-01024-AA, 2018 WL 22 3613993, at *6 (D. Or. July 27, 2018) (finding that a claimant’s participation in 23 activities that included social events, groups, and yoga was a clear and convincing 24 reason to discredit her testimony because the ALJ “determine[d] that plaintiff’s 25 allegations about concentration difficulties and brain fog were inconsistent with her 26 stated abilit[ies]”). 27 Further, the mere ability to perform some tasks is not necessarily indicative of 28 an ability to perform work activities because “many home activities are not easily 1 transferable to what may be the more grueling environment of the workplace, where 2 it might be impossible to periodically rest or take medication.” Fair, 885 F.2d at 603; 3 cf. Molina, 674 F.3d at 1112-13 (the ALJ may discredit a claimant who “participat[es] 4 in everyday activities indicating capacities that are transferable to a work setting”). 5 The critical difference between home activities “and activities in a full-time job are 6 that a person has more flexibility in scheduling the former . . . , can get help from 7 other persons . . . , and is not held to a minimum standard of performance, as she 8 would be by an employer.” Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012) 9 (cited with approval in Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014)). 10 Here, Plaintiff testified that on bad days, he needs to take breaks every 30 to 40 11 minutes to lie down for up to a half hour. (AR 42.) Plaintiff’s bad days occur two to 12 four days a week. (Id.) 13 With respect to Plaintiff’s exercise, Plaintiff testified that he walks on a 14 treadmill at the advice of his doctor. (AR 36.) Plaintiff explained that he takes a 15 break from walking after about 10 minutes, and it can take him two hours to complete 16 45 minutes of walking. (Id.) The ALJ again does not explain how this translates into 17 an ability to perform regularly in the workplace. Additionally, some activities “are 18 not necessarily transferable to the work setting with regard to the impact of pain” 19 because “[a] patient may do these activities despite pain for therapeutic reasons, but 20 that does not mean she could concentrate on work despite the pain or could engage 21 in similar activity for a longer period given the pain involved.” Vertigan, 260 F.3d 22 at 1050. 23 In sum, the Court finds that this reason is not a clear and convincing reason, 24 supported by substantial evidence, to discount Plaintiff’s credibility. 25 c. Reason No. 3: Lack of Supporting Objective Medical 26 Evidence 27 The remaining reason for discounting Plaintiff’s subjective testimony—lack 28 of supporting objective evidence—cannot form the sole basis for discounting 1 symptom testimony. See Burch, 400 F.3d at 681 (“Although lack of medical 2 evidence cannot form the sole basis for discounting pain testimony, it is a factor that 3 the ALJ can consider in his credibility analysis.”); Light v. Soc. Sec. Admin., 119 F.3d 4 789, 792 (9th Cir. 1997) (“[A] finding that the claimant lacks credibility cannot be 5 premised wholly on a lack of medical support for the severity of his pain.”). 6 The ALJ did not give clear and convincing reasons, supported by substantial 7 evidence, for discounting Plaintiff’s credibility. Accordingly, remand is warranted 8 on this issue. 9 B. Remand For Further Administrative Proceedings 10 Because further administrative review could remedy the ALJ’s errors, remand 11 for further administrative proceedings, rather than an award of benefits, is warranted 12 here. See Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (remanding for 13 an award of benefits is appropriate in rare circumstances). Before ordering remand 14 for an award of benefits, three requirements must be met: (1) the Court must conclude 15 that the ALJ failed to provide legally sufficient reasons for rejecting evidence; (2) the 16 Court must conclude that the record has been fully developed and further 17 administrative proceedings would serve no useful purpose; and (3) the Court must 18 conclude that if the improperly discredited evidence were credited as true, the ALJ 19 would be required to find the claimant disabled on remand. Id. (citations omitted). 20 Even if all three requirements are met, the Court retains flexibility to remand for 21 further proceedings “when the record as a whole creates serious doubt as to whether 22 the claimant is, in fact, disabled within the meaning of the Social Security Act.” Id. 23 (citation omitted). 24 Here, remand for further administrative proceedings is appropriate. The Court 25 finds that the ALJ failed to provide clear and convincing reasons supported by 26 substantial evidence to discount Plaintiff’s subjective testimony. On remand, the 27 ALJ shall reassess Plaintiff’s subjective allegations. The ALJ shall then reassess 28 Plaintiff’s RFC in light of the reassessment of Plaintiff’s subjective allegations and 1 || proceed through step four and step five to determine what work, if any, Plaintiff is 2 || capable of performing. 3 || V. CONCLUSION 4 IT IS ORDERED that Judgment shall be entered REVERSING the decision of 5 || the Commissioner denying benefits, and REMANDING the matter for further 6 || proceedings consistent with this Order. 7 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this g || Order and the Judgment on counsel for both parties. Razells, , QC 10 || DATED: August 22, 2019 1 ROZELLA A. OLIVER UNITED STATES MAGISTRATE JUDGE 12 13 NOTICE 15 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, 16 || LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE. 17 18 19 20 21 22 23 24 25 26 27 28 11