(SS) Dowling v. Commissioner of Social Security ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROCHELLE KATHLEEN DOWLING, Case No. 1:20-cv-00526-EPG 12 Plaintiff, 13 v. FINAL JUDGMENT AND ORDER REGARDING PLAINTIFF’S SOCIAL 14 COMMISSIONER OF SOCIAL SECURITY COMPLAINT SECURITY, 15 (ECF Nos. 23, 24, 26) Defendant. 16 17 This matter is before the Court on Plaintiff Rochelle Kathleen Dowling’s (“Plaintiff”) 18 complaint for judicial review of an unfavorable decision by the Commissioner of the Social 19 Security Administration regarding her application for Disability Insurance Benefits. The parties 20 have consented to entry of final judgment by the United States Magistrate Judge under the 21 provisions of 28 U.S.C. § 636(c) with any appeal to the Court of Appeals for the Ninth Circuit. 22 (ECF Nos. 10, 12, 13.) 23 The Court, having reviewed the record, administrative transcript, the parties’ briefs, and 24 the applicable law, finds as follows: 25 I. Plaintiff’s Subjective Symptom Allegations 26 Plaintiff first argues that the Administrative Law Judge (the “ALJ”) erred in evaluating 27 her subjective symptom allegations. (ECF No. 23 at 5-10.) 28 1 The Ninth Circuit has summarized the ALJ's task with respect to assessing a claimant's 2 credibility as follows: 3 To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis. First, the ALJ 4 must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain 5 or other symptoms alleged. The claimant, however, need not show that her impairment could reasonably be expected to cause the severity of the symptom she 6 has alleged; she need only show that it could reasonably have caused some degree of the symptom. Thus, the ALJ may not reject subjective symptom testimony ... 7 simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged. 8 Second, if the claimant meets this first test, and there is no evidence of 9 malingering, the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so[.] 10 11 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (citations and quotation marks 12 omitted). Given that there is objective medical evidence of an underlying impairment, the Court examines whether the ALJ rejected Plaintiff's subjective symptom allegations by offering 13 specific, clear, and convincing reasons. 14 ALJ Timothy S. Snelling first summarized Plaintiff’s subjective symptom allegations as 15 follows: 16 17 On August 19, 2016, the claimant filed an application for disability insurance benefits pursuant to Title II of the Social Security Act and alleged inability to 18 engage in competitive work activity beginning on July 13, 2015 due to back injury. She subsequently amended her claim to a closed period of disability ending on 19 May 26, 2017 (Exhibit 11B, p. 1). The claimant had a work history as a deputy public guardian and she stopped working on July 13, 2016 due [to] her condition 20 (Exhibit 2E, p. 2). She alleged that despite her conservative treatment, nothing was able to resolve or provide sufficient relief of pain until she underwent back surgery 21 and then fully recovered. Prior to this surgery and recovery, she was unable to work an eight-hour day due to pain. She was able to do some activity in short 22 spurts, but not sustained work activity (Exhibit 11B, p. 2). The claimant alleged she was in constant pain. Sitting, driving, walking, standing, and bending 23 aggravated her injury. She could only walk two blocks. She could lift and carry only one grocery bag. She could drive 10-15 miles at a time (Exhibit 3E). On May 24 27, 2017, she was recovered and returned to work. 25 (A.R. 22-23.) The ALJ found that Plaintiff’s “medically determinable impairment could 26 reasonably be expected to cause the alleged symptoms” but her “statements concerning the 27 intensity, persistence and limiting effects of these symptoms are not consistent with the medical 28 1 evidence and other evidence in the record.” (A.R. 23.) 2 The ALJ first discounted Plaintiff’s allegations regarding her activities of daily living, 3 which Plaintiff described as “fairly limited.” (A.R. 23.) The ALJ found that the “allegedly limited 4 daily activities could not be objectively verified with any reasonable degree of certainty” and “it 5 was difficult to attribute [the] degree of limitation to the claimant’s medical condition, as opposed 6 to other reasons, in view of the relatively weak medical evidence and other factors[.]” (Id.) 7 The ALJ further found that Plaintiff’s “allegations that she was unable to sustain the 8 physical demands of competitive employment were inconsistent with the medical record because 9 the objective clinical findings did not support the limitations alleged” and “[t]here were few 10 objective findings in support of [Plaintiff’s] allegations.” (A.R. 23.) The ALJ then proceeded to 11 summarize portions of the medical record. (A.R. 23-25.) The ALJ also found that Plaintiff’s 12 “presentation and reports to her treating physicians and her course of medical treatment” were 13 “inconsistent with the claimant’s allegations.” (A.R. 26.) According to the ALJ, Plaintiff’s “use of 14 medications did not suggest the presence of an impairment that was more limiting than found in 15 this decision.” (A.R.) The ALJ stated: 16 The claimant did undergo back surgery, which certainly suggested that the symptoms were genuine. While the fact would normally weigh in the claimant’s 17 favor, it was offset by the fact that the record reflected that the surgery was generally successful in relieving the symptoms. 18 19 (A.R. 25.) 20 Plaintiff argues that the ALJ failed to provide specific, clear and convincing reasons for 21 discounting Plaintiff’s allegations of back pain. (ECF No. 23 at 5-10.) First, as to the ALJ’s 22 finding that the objective medical evidence did not support Plaintiff’s allegations of disabling 23 pain, the ALJ did not identify which specific medical findings undermined Plaintiff’s allegations. 24 (Id. at 6.) Moreover, the objective medical evidence actually supported Plaintiff’s allegations. (Id. 25 at 7.) Second, the ALJ’s finding that Plaintiff’s use of medications did not support her allegations 26 of back pain failed to consider Plaintiff’s explanation for not taking medications at the time of the 27 May 2016 orthopedic surgery consultation. (Id. at 8-9.) Any inference that might arise from the 28 temporary discontinuation of pain medications was also contradicted by Plaintiff’s pursuit of 1 aggressive treatment such as two epidural steroid injections and spine fusion surgery. (Id. at 9.) 2 Additionally, the evidence that Plaintiff improved following back surgery was entirely consistent 3 with Plaintiff’s allegations. (Id. at 9.)1 4 In opposition, the Commissioner argues that the ALJ properly discounted Plaintiff’s 5 subjective symptom allegations because the objective medical evidence did not support Plaintiff’s 6 claims of disabling symptoms and functional limitations. (ECF No. 23 at 6-8.) Likewise, 7 Plaintiff’s allegations were inconsistent with Plaintiff’s course of treatment. (Id. at 8-9.) The ALJ 8 also properly found that Plaintiff’s self-reported limited daily activities were inconsistent with the 9 weak objective evidence. (Id. at 9-10.) 10 The Court finds that the ALJ erred by failing to provide specific, clear, and convincing 11 reasons for finding that Plaintiff’s allegations about the severity of her symptoms were not 12 credible. First, the ALJ’s finding that Plaintiff’s allegations were inconsistent with the medical 13 record was not supported by substantial evidence. The ALJ discounted Plaintiff’s allegations due 14 to a lack of objective medical evidence to fully corroborate the alleged severity of pain. (A.R. 23.) 15 However, the ALJ also summarized several portions of the medical record that were consistent 16 with Plaintiff’s allegations. (A.R. 23-25.) As the ALJ noted, Plaintiff reported persistent lower 17 back pain, which she described as an 8/10, that did not respond to conservative treatment methods 18 or epidural steroid injections. (A.R. 24.) Ultimately, Plaintiff required surgery. (A.R. 24.) 19 Although Defendant argues that treatment notes indicated Plaintiff was well-developed, well 20 nourished, and in no acute distress, when viewing the record as a whole these findings do not 21 counter indicate Plaintiff’s allegations of pain. See Lingenfelter v. Astrue, 504 F.3d 1028, 1035 22 (9th Cir. 2007) (“[The Court] must consider the entire record as a whole, weighing both the 23 1 Plaintiff also argues that the ALJ erred by relying on instructions from Plaintiff’s medical providers that she could 24 resume normal activity and return to work as tolerated. (ECF No. 23 at 9-10.) The ALJ evaluated these instructions in the context of weighing medical source statements. (A.R. 25.) The ALJ gave them little weight because they were 25 temporary in nature. (Id.) The ALJ does not appear to have relied on these instructions as a reason for discounting Plaintiff’s subjective symptom allegations. However, to the extent that the ALJ did rely on the post-injection instructions, the Court finds that this is not a specific, clear and convincing reason for discounting Plaintiff’s 26 allegations of pain. See Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (reasoning that an ALJ’s credibility findings “must be sufficiently specific to allow a reviewing court to conclude the adjudicator rejected the claimant’s 27 testimony on permissible grounds and did not arbitrarily discredit a claimant’s testimony regarding pain” and “a reviewing court should not be forced to speculate as to the ground’s for an adjudicator’s rejection of a claimant’s 28 allegations of disabling pain”) (quotation marks and citations omitted). 1 evidence that supports and the evidence that detracts from the Commissioner's conclusion, and 2 may not affirm simply by isolating a specific quantum of supporting evidence.”). The ALJ’s 3 finding that the objective medical evidence did not corroborate Plaintiff’s allegations lacks the 4 support of substantial evidence. 5 Likewise, the ALJ’s finding that, “even if the claimant’s daily activities were truly as 6 limited as alleged, it was difficult to attribute that degree of limitation to the claimant’s medical 7 condition, as opposed to other reasons,” was speculative and unsupported by substantial evidence. 8 (See A.R. 23.) The ALJ did not identify any evidence in the record indicating that Plaintiff’s 9 allegations could be attributed to any reason other than her medical condition. 10 The ALJ also erred in finding that Plaintiff’s “use of medications” did not support her 11 allegations of back pain. (See A.R. 25.) As the ALJ noted, on May 2, 2016, Plaintiff reported that 12 “she had tried many different medications that provided minimal relief and she was not currently 13 taking medications.” (A.R. 24.) On June 6, 2016, she received epidural steroid injections, which 14 provided no relief. (Id.) Ultimately, Plaintiff underwent lumbar fusion surgery. (Id.) While 15 evidence that a claimant responded positively to medication can undermine her claim of disabling 16 pain, here the record establishes that Plaintiff’s pain did not improve with medication. See Warre 17 v. Comm’r Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be 18 controlled effectively with medication are not disabling[.]”). 19 Indeed, the ALJ acknowledged that the fact that Plaintiff underwent back surgery 20 “suggested that [her] symptoms were genuine” and “would normally weigh in the claimant’s 21 favor[.]” (A.R. 25.) However, the ALJ proceeded to find that this was “offset by the fact that the 22 record reflected that the surgery was generally successful in relieving the symptoms.” (Id.) The 23 ALJ’s reasoning here supports, rather than refutes, Plaintiff’s allegations. As the ALJ notes at the 24 beginning of his decision, Plaintiff amended her alleged onset date to a closed period because she 25 medically improved and became able to return to work. (A.R. 19.) Therefore, Plaintiff’s 26 improvement following surgery is entirely consistent with her allegations. Thus, the ALJ’s 27 finding that Plaintiff’s use of medications was inconsistent with her allegations lacked the support 28 of substantial evidence and was not a specific, clear, and convincing reason for discounting 1 Plaintiff’s credibility. 2 In light of the foregoing, the Court finds that the ALJ erred in his evaluation of Plaintiff’s 3 subjective symptom allegations and the error was not harmless. As a result, the Court declines to 4 address Plaintiff’s remaining argument that the ALJ failed to evaluate the impact of Plaintiff’s 5 obesity on her ability to function. (See ECF No. 23.) II. Remedy 6 The Court has the discretion to remand or reverse and award benefits. McAllister v. 7 Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). A case may be remanded under the “credit-as-true” 8 rule for an award of benefits where: 9 10 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient 11 reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ 12 would be required to find the claimant disabled on remand. 13 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Even where all the conditions for the 14 “credit-as-true” rule are met, the court retains “flexibility to remand for further proceedings when 15 the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within 16 the meaning of the Social Security Act.” Id. at 1021. 17 Here, the record has been fully developed and further administrative proceedings would 18 serve no useful purpose. In this regard, the record includes Plaintiff’s medical records, the State 19 agency physicians’ medical opinions, and Plaintiff’s description of her pain and its resulting 20 effects. As discussed above, the ALJ has failed to provide legally sufficient reasons for rejecting 21 Plaintiff’s allegations regarding the severity of her pain. If the improperly discredited evidence 22 were credited as true, the ALJ would be required to find Plaintiff disabled on remand. 23 Moreover, the record as a whole does not create serious doubt as to whether Plaintiff is, in 24 fact, disabled within the meaning of the Social Security Act. Plaintiff stopped working on July 13, 25 2015, due to her back injury. Plaintiff was prescribed pain medications, physical therapy, and 26 steroid injections, all of which were ineffective. Ultimately, on February 2, 2017, Plaintiff 27 underwent fusion surgery of her lumbar spine. Following surgery, she returned to work. Plaintiff accordingly amended her alleged onset date to a closed period ending on the date when she 28 ! returned to work. Plaintiff seeks disability insurance benefits solely for the closed period prior to 2 her surgery when she was not working and does not seek benefits for the time after her surgery 3 when her condition improved and she returned to work. In these circumstances, the Court 4 | declines to remand this case for further proceedings and will reverse the Commissioner’s decision 5 | and award benefits. 6 Il. Conclusion 7 Accordingly, IT IS HEREBY ORDERED: 8 1. The decision of the Commissioner of the Social Security Administration is reversed; 9 2. The matter is remanded for the immediate award of benefits; and 10 3. The Clerk of Court shall enter judgment in favor of Plaintiff and shall close this case. 11 IT IS SO ORDERED. 12 13 | Dated: _ August 9, 2021 [sf ey — 4 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28