(SS) West v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RICARDO WEST, No. 2:18-cv-2752 DB 12 Plaintiff, 13 v. ORDER 14 ANDREW SAUL, Commissioner of Social Security,1 15 16 Defendant. 17 18 This social security action was submitted to the court without oral argument for ruling on 19 plaintiff’s motion for summary judgment and defendant’s cross-motion for summary judgment.2 20 Plaintiff’s motion argues that the Administrative Law Judge’s treatment of plaintiff’s subjective 21 testimony was erroneous. 22 //// 23 24 1 Andrew Saul became the Commissioner of the Social Security Administration on June 17, 2019. See https://www.ssa.gov/agency/commissioner.html (last visited by the court on July 30, 2019). 25 Accordingly, Andrew Saul is substituted in as the defendant in this action. See 42 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding 26 the Office of the Commissioner shall, in his official capacity, be the proper defendant”). 27 2 Both parties have previously consented to Magistrate Judge jurisdiction over this action 28 pursuant to 28 U.S.C. § 636(c). (See ECF Nos. 7 & 8.) 1 For the reasons explained below, plaintiff’s motion is granted, defendant’s cross-motion is 2 denied, the decision of the Commissioner of Social Security (“Commissioner”) is reversed, and 3 this matter is remanded for further proceedings. 4 PROCEDURAL BACKGROUND 5 On October 1, 2015, plaintiff filed an application for Disability Insurance Benefits 6 (“DIB”) under Title II of the Social Security Act (“the Act”), alleging disability beginning on 7 April 18, 2014. (Transcript (“Tr.”) at 15, 174-79.) Plaintiff’s alleged impairments included back 8 pain, hypertension, and muscle spasms. (Id. at 201.) Plaintiff’s application was denied initially, 9 (id. at 102-06), and upon reconsideration. (Id. at 109-13.) 10 Plaintiff requested an administrative hearing and a hearing was held before an 11 Administrative Law Judge (“ALJ”) on November 9, 2017. (Id. at 30-69.) Plaintiff was 12 represented by an attorney and testified at the administrative hearing. (Id. at 30-35.) In a 13 decision issued on November 27, 2017, the ALJ found that plaintiff was not disabled. (Id. at 25.) 14 The ALJ entered the following findings: 15 1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2019. 16 2. The claimant has not engaged in substantial gainful activity 17 since April 18, 2014, the alleged onset date (20 CFR 404.1571 et seq.). 18 3. The claimant has the following severe impairments: lumbar 19 spine degenerative disc disease; lumbosacral radiculitis/facet arthropathy; myofascial pain; cervical degenerative disc disease; 20 hemochromatosis; and hypertension (20 CFR 404.1520(c)). 21 4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of 22 the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, and 404.1526). 23 5. After careful consideration of the entire record, the undersigned 24 finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) and 25 SSR 83-10 specifically as follows: the claimant can lift and/or carry 20 pounds occasionally and 10 pounds frequently; he can stand 26 and/or walk for six hours out of an eight-hour workday with normal breaks; he can sit for six hours out of an eight-hour workday with 27 normal breaks; he is unlimited with respect to pushing and/or pulling, other than as indicated for lifting and/or carrying; he can occasionally 28 climb ramps, stairs, ladders, ropes, and scaffolds; he can occasionally 1 stoop; he can frequently kneel, crouch, and crawl; and he requires the option to alternate between sitting and standing at will while 2 remaining on task. 3 6. The claimant is unable to perform any past relevant work (20 CFR 404.1565). 4 7. The claimant was born [in] 1964 and was 49 years old, which is 5 defined as an individual closely approaching advanced age, on the alleged disability onset date (20 CFR 404.1563). 6 8. The claimant has at least a high school education and is able to 7 communicate in English (20 CFR 404.1564). 8 9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a 9 framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82- 10 41 and 20 CFR Part 404, Subpart P, Appendix 2). 11 10. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant 12 numbers in the national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)). 13 11. The claimant has not been under a disability, as defined in the 14 Social Security Act, from April 18, 2014, through the date of this decision (20 CFR 404.1520(g)). 15 16 (Id. at 17-25.) 17 On September 12, 2018, the Appeals Council denied plaintiff’s request for review of the 18 ALJ’s November 27, 2017 decision. (Id. at 1-5.) Plaintiff sought judicial review pursuant to 42 19 U.S.C. § 405(g) by filing the complaint in this action on October 12, 2018. (ECF. No. 1.) 20 LEGAL STANDARD 21 “The district court reviews the Commissioner’s final decision for substantial evidence, 22 and the Commissioner’s decision will be disturbed only if it is not supported by substantial 23 evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158-59 (9th Cir. 2012). 24 Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to 25 support a conclusion. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Sandgathe v. 26 Chater, 108 F.3d 978, 980 (9th Cir. 1997). 27 “[A] reviewing court must consider the entire record as a whole and may not affirm 28 simply by isolating a ‘specific quantum of supporting evidence.’” Robbins v. Soc. Sec. Admin., 1 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 2 1989)). If, however, “the record considered as a whole can reasonably support either affirming or 3 reversing the Commissioner’s decision, we must affirm.” McCartey v. Massanari, 298 F.3d 1072, 4 1075 (9th Cir. 2002). 5 A five-step evaluation process is used to determine whether a claimant is disabled. 20 6 C.F.R. § 404.1520; see also Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). The five-step 7 process has been summarized as follows: 8 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. 9 Step two: Does the claimant have a “severe” impairment? If so, 10 proceed to step three. If not, then a finding of not disabled is appropriate. 11 Step three: Does the claimant’s impairment or combination of 12 impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined 13 disabled. If not, proceed to step four. 14 Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. 15 Step five: Does the claimant have the residual functional capacity to 16 perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 17 18 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 19 The claimant bears the burden of proof in the first four steps of the sequential evaluation 20 process. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). The Commissioner bears the burden 21 if the sequential evaluation process proceeds to step five. Id.; Tackett v. Apfel, 180 F.3d 1094, 22 1098 (9th Cir. 1999). 23 APPLICATION 24 Plaintiff’s pending motion argues that the ALJ’s treatment of the plaintiff’s subjective 25 testimony constituted error. (Pl.’s MSJ (ECF No. 12) at 16-22.3) The Ninth Circuit has 26 summarized the ALJ’s task with respect to assessing a claimant’s credibility as follows: 27 3 Page number citations such as this one are to the page number reflected on the court’s CM/ECF 28 system and not to page numbers assigned by the parties. 1 To determine whether a claimant’s testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step 2 analysis. First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment 3 which could reasonably be expected to produce the pain or other symptoms alleged. The claimant, however, need not show that her 4 impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could 5 reasonably have caused some degree of the symptom. Thus, the ALJ may not reject subjective symptom testimony . . . simply because 6 there is no showing that the impairment can reasonably produce the degree of symptom alleged. 7 Second, if the claimant meets this first test, and there is no evidence 8 of malingering, the ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering specific, clear and 9 convincing reasons for doing so[.] 10 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (citations and quotation marks 11 omitted). “The clear and convincing standard is the most demanding required in Social Security 12 cases.” Moore v. Commissioner of Social Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002). “At 13 the same time, the ALJ is not required to believe every allegation of disabling pain, or else 14 disability benefits would be available for the asking[.]” Molina v. Astrue, 674 F.3d 1104, 1112 15 (9th Cir. 2012). 16 “The ALJ must specifically identify what testimony is credible and what testimony 17 undermines the claimant’s complaints.”4 Valentine v. Commissioner Social Sec. Admin., 574 18 F.3d 685, 693 (9th Cir. 2009) (quoting Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 19 599 (9th Cir. 1999)). In weighing a claimant’s credibility, an ALJ may consider, among other 20 things, the “[claimant’s] reputation for truthfulness, inconsistencies either in [claimant’s] 21 testimony or between [her] testimony and [her] conduct, [claimant’s] daily activities, [her] work 22 record, and testimony from physicians and third parties concerning the nature, severity, and effect 23 of the symptoms of which [claimant] complains.” Thomas v. Barnhart, 278 F.3d 947, 958-59 24 4 In March 2016, Social Security Ruling (“SSR”) 16-3p went into effect. “This ruling makes 25 clear what our precedent already required: that assessments of an individual’s testimony by an ALJ are designed to ‘evaluate the intensity and persistence of symptoms after the ALJ finds that 26 the individual has a medically determinable impairment(s) that could reasonably be expected to 27 produce those symptoms,’ and not to delve into wide-ranging scrutiny of the claimant’s character and apparent truthfulness.” Trevizo v. Berryhill, 871 F.3d 664, 679 (9th Cir. 2017) (quoting SSR 28 16-3p) (alterations omitted). 1 (9th Cir. 2002) (modification in original) (quoting Light v. Soc. Sec. Admin., 119 F.3d 789, 792 2 (9th Cir. 1997)). If the ALJ’s credibility finding is supported by substantial evidence in the 3 record, the court “may not engage in second-guessing.” Id. 4 Here, the ALJ evaluated plaintiff’s testimony as follows: 5 The claimant alleged disability primarily due to a history of neck and back pain. In his Exertional Activities Questionnaire dated April 21, 6 2016, he endorsed significant difficulties with mobility and exertion due to back pain. He indicated that any movement that required 7 bending, stooping and lifting would bring on pain. The claimant reported he was taking Baclofen and Gabapentin for pain and he was 8 using a back brace on a daily basis. He described his symptoms as getting worse and he was unable to stand or sit for more than a few 9 minutes at a time. At the hearing, the claimant endorsed similar symptoms and limitations, maintaining that he was unable to lift 10 more than five pounds and he had trouble walking to the mailbox due to pain. He indicated he was using a cane, but acknowledged that it 11 was not prescribed by his doctor. The claimant stated he was taking Norco and had injections that did not improve his pain symptoms. 12 Without medication, he said his pain level was rated a 10 on a scale of 1 to 10. He confirmed he had not undergone surgery for the back 13 pain as he was advised that he was not a candidate for surgery. 14 After careful consideration of the evidence, the undersigned finds that the claimant’s medically determinable impairments could 15 reasonably be expected to cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and 16 limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons 17 explained in this decision. The standard for disability is not just the inability to perform the claimant’s past work but also the inability to 18 perform all other work given the claimant’s residual functional capacity, vocational profile and work history. The record supports a 19 finding that the claimant is able to perform work within the residual functional capacity assessed herein. 20 21 (Tr. at 20) (citations omitted). 22 The ALJ’s analysis consists of merely the vague and conclusory finding that plaintiff’s 23 testimony was “not entirely consistent” with the evidence followed by the equally vague and 24 conclusory reference to the “standard for disability,” before simply asserting that the “record 25 supports a finding that the claimant is able to perform work[.]” (Id.) This analysis is devoid of 26 any specificity with respect to plaintiff’s testimony and the evidence that supports or detracts 27 from plaintiff’s testimony. 28 //// 1 “An ALJ’s ‘vague allegation’ that a claimant’s testimony is ‘not consistent with the 2 objective medical evidence,’ without any ‘specific findings in support’ of that conclusion is 3 insufficient for our review.” Treichler v. Commissioner of Social Sec. Admin., 775 F.3d 1090, 4 1103 (9th Cir. 2014) (quoting Vasquez v. Astrue, 572 F.3d 586, 592 (9th Cir. 2009)). “This 5 boilerplate statement encourages an inaccurate assessment of a claimant’s credibility and also 6 permits determination of RFCs that are inconsistent with truly credible testimony. The approach 7 taken by the ALJ was inconsistent with the Social Security Act and should not be used in 8 disability decisions.” Laborin v. Berryhill, 867 F.3d 1151, 1152-53 (9th Cir. 2017). This is 9 because “‘[s]uch boilerplate language fails to inform us in a meaningful, reviewable way of the 10 specific evidence the ALJ considered in determining that claimant’s complaints were not credible. 11 More troubling, it appears that the Commissioner has repeatedly been using this same boilerplate 12 paragraph to reject the testimony of numerous claimants, without linking the conclusory 13 statements contained therein to evidence in the record or even tailoring the paragraph to the facts 14 at hand, almost without regard to whether the boilerplate paragraph has any relevance to the 15 case.’” Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012) (quoting Hardman v. Barnhart, 362 16 F.3d 676, 679 (10th Cir. 2004)). 17 Accordingly, the court finds that the ALJ failed to provide a clear and convincing reason 18 for rejecting plaintiff’s testimony. Plaintiff, therefore, is entitled to summary judgment on the 19 claim that the ALJ’s treatment of plaintiff’s subjective testimony constituted error. 20 CONCLUSION 21 With error established, the court has the discretion to remand or reverse and award 22 benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). A case may be remanded 23 under the “credit-as-true” rule for an award of benefits where: 24 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 25 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly 26 discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. 27 28 //// 1 Garrison, 759 F.3d at 1020. Even where all the conditions for the “credit-as-true” rule are met, 2 the court retains “flexibility to remand for further proceedings when the record as a whole creates 3 serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social 4 Security Act.” Id. at 1021; see also Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) 5 (“Unless the district court concludes that further administrative proceedings would serve no 6 useful purpose, it may not remand with a direction to provide benefits.”); Treichler, 775 F.3d at 7 1105 (“Where . . . an ALJ makes a legal error, but the record is uncertain and ambiguous, the 8 proper approach is to remand the case to the agency.”). 9 Here, upon review of the record, the court cannot find that further proceedings would 10 serve no useful purpose. Thus, this matter must be remanded for further proceedings. 11 Accordingly, IT IS HEREBY ORDERED that: 12 1. Plaintiff’s motion for summary judgment (ECF No. 12) is granted; 13 2. Defendant’s cross-motion for summary judgment (ECF No. 13) is denied; 14 3. The Commissioner’s decision is reversed; 15 4. This matter is remanded for further proceedings consistent with this order; and 16 5. The Clerk of the Court shall enter judgment for plaintiff and close this case. 17 DATED: March 24, 2020 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 DLB:6 25 DB\orders\orders.soc sec\west2752.ord 26 27 28