(SS) De Vera v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 AURORA DE VERA, No. 2:19-cv-189-EFB 11 Plaintiff, 12 v. ORDER 13 ANDREW SAUL, Commissioner of Social Security 14 Defendant. 15 16 17 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 18 (“Commissioner”) denying her application for a period of disability and Disability Insurance 19 Benefits (“DIB”) under Title II of the Social Security Act. The parties have filed cross-motions 20 for summary judgment. ECF Nos. 11 & 12. For the reasons discussed below, plaintiff’s motion 21 for summary judgment is granted, the Commissioner’s motion is denied, and the matter is 22 remanded for further proceedings. 23 I. Background 24 Plaintiff filed an application for a period of disability and DIB, alleging that she had been 25 disabled since May 16, 2013. Administrative Record (“AR”) at 177-78. Her application was 26 denied initially and upon reconsideration. Id. at 105-09, 113-18. A hearing was subsequently 27 held before administrative law judge (“ALJ”) Sheila Walters. Id. at 42-75. Plaintiff was 28 represented by counsel at the hearing, at which plaintiff and a vocational expert testified. Id. 1 On January 10, 2018, the ALJ issued a decision finding that plaintiff was not disabled 2 under sections 216(i) and 223(d) of the Act.1 Id. at 15-36. The ALJ made the following specific 3 findings: 4 1. The claimant meets the insured status requirements of the Social Security Act through 5 December 31, 2018. 6 2. The claimant has not engaged in substantial gainful activity since May 16, 2013, the alleged onset date (20 CFR 404.1571 et seq.). 7 * * * 8 3. The claimant has the following severe impairments: carpal tunnel syndrome; degenerative 9 joint disease of the first metacarpal phalangeal and interphalangeal joints; left cubital 10 11 1 Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. §§ 401 et seq. Supplemental Security Income (“SSI”) is paid 12 to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both provisions, disability is defined, in part, as an “inability to engage in any substantial gainful activity” due to 13 “a medically determinable physical or mental impairment.” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R. 14 §§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The 15 following summarizes the sequential evaluation: 16 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed 17 to step two. Step two: Does the claimant have a “severe” impairment? 18 If so, proceed to step three. If not, then a finding of not disabled is 19 appropriate. Step three: Does the claimant’s impairment or combination 20 of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically 21 determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past 22 work? If so, the claimant is not disabled. If not, proceed to step 23 five. Step five: Does the claimant have the residual functional 24 capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 25 26 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 27 The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential 28 evaluation process proceeds to step five. Id. 1 tunnel syndrome; degenerative disc disease of the cervical spine; degenerative disc disease of the lumbar spine; degenerative joint disease of the left knee; left shoulder rotator cuff 2 tear (20 CFR 404.1520(c)). 3 * * * 4 4. The claimant does not have an impairment or combination of impairments that meets or 5 medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526). 6 * * * 7 5. After careful consideration of the entire record, the undersigned finds that the claimant has 8 the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) 9 except that she is able to lift and carry ten pounds frequently and twenty pounds occasionally; she is able to sit for at least six hours of an eight hour workday; she is able 10 to stand and/or walk at least six hours of an eight hour workday; she requires the use of a cane for walking over uneven terrain. The claimant is limited to frequent performance of 11 fine and gross manipulation; occasional climbing of ramps and stairs, balancing, stooping, kneeling, crouching, crawling; and occasional overhead reaching. She should avoid even 12 moderate exposure to extreme cold and wetness; and she is precluded from climbing 13 ladders, ropes, and scaffolds, and from working around unprotected heights and hazardous machinery. 14 * * * 15 6. The claimant is capable of performing past relevant work as an Eligibility Worker (DOT 16 195.267-010), sedentary, specific vocational profile (SVP) level 6. This work does not require the performance of work-related activities precluded by the claimant’s residual 17 functional capacity (20 CFR 404.1565). 18 * * * 19 7. The claimant has not been under a disability, as defined in the Social Security Act, from 20 May 16, 2013, through the date of this decision (20 CFR 404.1520(f)). 21 Id. at 17-36. 22 Plaintiff’s request for Appeals Council review was denied on September 11, 2018, leaving 23 the ALJ’s decision as the final decision of the Commissioner. Id. at 1-6. 24 II. Legal Standards 25 The Commissioner’s decision that a claimant is not disabled will be upheld if the findings 26 of fact are supported by substantial evidence in the record and the proper legal standards were 27 applied. Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); 28 1 Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 2 180 F.3d 1094, 1097 (9th Cir. 1999). 3 The findings of the Commissioner as to any fact, if supported by substantial evidence, are 4 conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is 5 more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th 6 Cir. 1996). “‘It means such evidence as a reasonable mind might accept as adequate to support a 7 conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. 8 N.L.R.B., 305 U.S. 197, 229 (1938)). 9 “The ALJ is responsible for determining credibility, resolving conflicts in medical 10 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 11 2001) (citations omitted). “Where the evidence is susceptible to more than one rational 12 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” 13 Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 14 III. Analysis 15 Plaintiff’s motion advances three arguments. First, plaintiff argues that the ALJ erred in 16 assessing her severe impairment’s at step-two of the sequential evaluation. Second, she argues 17 that the ALJ erred in discounting her subjective complaints. Third, she contends the ALJ failed to 18 properly weight the medical opinion evidence of record.2 As discussed below, because plaintiff’s 19 testimony was not properly evaluated, the matter must be remanded. 20 A. Relevant Legal Standards 21 In evaluating a plaintiff’s testimony regarding subjective pain or symptoms, an ALJ must 22 follow a two-step analysis. First, the ALJ must determine whether the plaintiff has presented 23 objective medical evidence of an underlying impairment “which could reasonably be expected to 24 produce the pain or other symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th 25 Cir. 2007). At the first step, “the claimant is not required to show that her impairment could 26 reasonably be expected to cause the severity of the symptom she has alleged; she need only show 27 2 Plaintiff’s arguments are not addressed in the order presented in her motion, but have 28 been reorganized to align with the sequential evaluation. 1 that it could reasonably have caused some degree of the symptom.” Vasquez v. Astrue, 572 F.3d 2 586, 591 (9th Cir. 2009) (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). “If the 3 claimant meets the first test and there is no evidence of malingering, the ALJ can only reject the 4 claimant’s testimony about the severity of the symptoms if she gives specific, clear and 5 convincing reasons for the rejection.” Id. “[F]or the ALJ to reject the claimant’s complaints, the 6 ALJ must provide specific, cogent reasons for the disbelief.” Berry v. Astrue, 622 F.3d 1228, 7 1234 (9th Cir. 2010) (internal quotations and quotation marks omitted); see Diedrich v. Berryhill, 8 874 F.3d 634, 641 (9th Cir. 2017) (once a plaintiff submits medical evidence of an impairment 9 that could reasonably be expected to produce the alleged symptoms, “the ALJ must give specific, 10 clear and convincing reasons in order to reject the claimant’s testimony about the severity of the 11 symptoms.”). 12 B. Discussion 13 Plaintiff testified that she stopped working due to pain in her hands, shoulders, neck, head, 14 and arms. AR 55. She explained that her left rotator cuff is torn, which causes pain in her 15 shoulder that radiates to her neck. Id. at 56. Plaintiff also reported lower back pain and that she 16 anticipated having back surgery, which had not yet been scheduled. Id. at 57-58. Plaintiff also 17 stated that she has sciatica and plantar fasciitis, with the latter being diagnosed only recently. Id. 18 at 58. She also reported having difficulty using her hands due to carpel tunnel syndrome. Id. at 19 60-61. Plaintiff further testified that, due to her impairments, she can only walk and stand for 10 20 to 15 minutes at one time and two and three hours total in a day; sit for 15 to 20 minutes at one 21 time and up to three total hours in a day; and lift between 5 and 10 pounds. Id. at 59-60. 22 The sole reason provided by the ALJ for rejecting plaintiff’s subjective complaints was 23 that “they are inconsistent because the [plaintiff] has been observed as having mostly normal 24 findings on consultative examination with Dr. Van Kirk.”3 AR 22. This reason alone, even if 25 supported by substantial evidence, cannot support the ALJ’s adverse credibility determination. 26 Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) (“[A]n ALJ may not reject a claimant’s 27 3 Dr. Kirk is an examining physician who evaluated plaintiff on a single occasion. AR 28 492-95. 1 subjective complaints based solely on a lack of objective medical evidence to fully corroborate 2 the alleged severity of pain.”); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991) (The 3 ALJ “may not discredit a claimant’s testimony of pain and deny disability benefits solely because 4 the degree of pain alleged by the claimant is not supported by objective medical evidence.”). 5 Apparently aware of the decision’s deficiencies, the Commissioner argues that the ALJ 6 did not simply conclude that plaintiff’s allegations were unsupported by the medical evidence. 7 Instead, the Commissioner argues, the ALJ concluded the medical evidence affirmatively 8 contradicts plaintiff’s claims. ECF No. 12 at 5 n.4. The record negates this argument. After 9 noting that Dr. Van Kirk found plaintiff’s motor strength and range of motion to be essentially 10 normal, the ALJ specifically stated that “[t]hese limited abnormal findings do not support the 11 extreme sitting, standing, walking, and limitations alleged by the claimant.” AR 22. Thus, the 12 ALJ specifically rejected plaintiff’s testimony based on a conclusion that the degree of pain and 13 functional limitations described by plaintiff was inconsistent with Dr. Van Kirk’s objective 14 findings. 15 In the same vein, the Commissioner contends that the ALJ properly concluded that 16 plaintiff’s testimony was undermined by the medical opinion evidence, including the opinion of 17 Dr. Van Kirk. ECF No. 12 at 5-6. Again, the ALJ may not reject a plaintiff’s testimony merely 18 because it is unsupported by the medical evidence, including medical opinion evidence. Moisa, 19 367 F.3d at 885. To hold otherwise would allow an ALJ to disregard a claimant’s subjective 20 complaints anytime the record contains conflicting medical opinions, which often occurs in social 21 security cases. Furthermore, the argument is not persuasive since the ALJ did not specifically 22 find that plaintiff was not credible because her testimony conflicted with medical opinion 23 evidence.4 See Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (“We review only the 24 4 Notwithstanding this conclusion, it can be reasonably inferred from the ALJ’s decision 25 that Dr. Van Kirk’s evaluation influenced the adverse credibility determination. Indeed, the ALJ 26 cites to Dr. Van Kirk’s one-time evaluation not only to support each assessed limitation in the RFC, but also to reject nearly all contrary evidence, including plaintiff’s testimony and 27 conflicting medical opinions. The extraordinary weight given to Dr. Van Kirk’s evaluation calls into question whether appropriate consideration was given to all evidence in the record. 20 28 C.F.R. § 404.1545(a)(1) (RFC must be “based on all the relevant evidence in [claimant’s] case 1 reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a 2 ground upon which he did not rely.”). 3 The Commissioner further argues that the ALJ properly concluded plaintiff was not 4 credible because she provided inconsistent statements concerning her allegedly disabling 5 symptoms. According to the Commissioner, plaintiff alleged she was disabled due to her left 6 knee impairment, but her treatment records show she regularly denied symptoms related to her 7 knee. ECF No. 12 at 5. The argument fails for two reasons. First, the ALJ did not conclude that 8 plaintiff was not credible due to an inconsistency between plaintiff’s testimony and her denial of 9 issues with her knee. After noting plaintiff’s diagnosis of degenerative joint disease of the left 10 knee, the ALJ observed that, with the exception of a few isolated instances, plaintiff regularly 11 denied symptoms related to her knee. AR 26. He did not find that plaintiff was not credible 12 because she denied issues with her knee on several occasions. Accordingly, the purported 13 inconsistency cannot provide a basis for upholding the ALJ’s decision. See Garrison, 759 F.3d at 14 1010. 15 Secondly, the Commissioner’s argument is predicated on the faulty premise that plaintiff 16 based her claim of disability on a knee impairment. Although a few medical records document 17 complaints of knee pain, plaintiff’s application did not allege disability due to degenerative joint 18 disease of the left knee. AR 73, 95, 209. More significantly, she did not testify she is 19 functionally limited due to her knees. See id. at 55-58 (testifying an inability to work due to pain 20 in her hands, shoulders, arms, and head; sciatica; plantar fasciitis; and lumbar spine issues.). 21 Thus, her credibility cannot be undermined by an argument that she made a contradictory 22 statement over something she never asserted in the first place. 23 Accordingly, the ALJ failed to provide clear and convincing reasons for rejecting 24 plaintiff’s subjective statements. The matter will therefore be remanded for further consideration. 25 Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“A district court may reverse the 26 decision of the Commissioner of Social Security, with or without remanding the case for a 27 28 record.”) Sf UV VV LOWE BP MMVUUETOCII tO PIR Vee FP Yt VU VIO 1 | rehearing, but the proper course, except in rare circumstances, is to remand to the agency for 2 | additional investigation or explanation.”) (internal quotes and citations omitted). 3 | IV. Conclusion 4 Based on the foregoing, it is hereby ORDERED that: 5 1. Plaintiff’s motion for summary judgment is granted; 6 2. The Commissioner’s cross-motion for summary judgment is denied; 7 3. The matter is remanded for further proceedings consistent with this order; and 8 4. The Clerk of Court is directed to enter judgment in plaintiffs favor and close the case. 9 | DATED: May 29, 2020. 10 Doolin 7 Sod 4 Ax 11 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28