Opinion
Case No. EDCV 13-1272 JC
01-23-2014
JAY THOMAS GARDNER, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND
ORDER OF REMAND
I. SUMMARY
On July 30, 2013, plaintiff Jay Thomas Gardener ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's application for benefits. The parties have consented to proceed before the undersigned United States Magistrate Judge.
This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; August 6, 2013 Case Management Order ¶ 5.
Based on the record as a whole and the applicable law, the decision of the Commissioner is REVERSED AND REMANDED for further proceedings consistent with this Memorandum Opinion and Order of Remand.
II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
On December 18, 2009, plaintiff filed an application for Supplemental Security Income benefits. (Administrative Record ("AR") 11). Plaintiff asserted that he became disabled on October 15, 2003, due to HIV, spinal cord problems, bipolar disorder, depression, chronic diarrhea, neuropathy, sciatic nerve problems, and memory loss. (AR 136-37). The ALJ examined the medical record and heard testimony from plaintiff (who was represented by counsel) and a vocational expert on December 6, 2011. (AR 21-55).
On March 2, 2012, the ALJ determined that plaintiff was not disabled through the date of the decision. (AR 11-17). Specifically, the ALJ found: (1) plaintiff suffered from a severe impairment of polyneuropathy involving the feet and hands, and non-severe impairments of HIV and mood disorder (AR 13); (2) plaintiff's impairments, considered singly or in combination, did not meet or medically equal a listed impairment (AR 14); (3) plaintiff retained the residual functional capacity to perform light work (20 C.F.R. § 416.967(b)) with additional limitations (AR 14); (4) plaintiff could perform his past relevant work as a computer systems hardware analyst (AR 16); and (5) plaintiff's allegations regarding his limitations were not credible to the extent they were inconsistent with the ALJ's residual functional capacity assessment (AR 16).
The ALJ determined that plaintiff: (i) could lift and/or carry no more than 20 pounds occasionally and 10 pounds frequently; (ii) could stand and/or walk no more than four hours out of eight in one hour intervals, and sit without significant restriction; (iii) could not perform work at unprotected heights, or work that exposed plaintiff to temperature extremes, required forceful gripping or grasping with the non-dominant hand, or required the use of ladders; (iv) could occasionally climb stairs and ramps; and (v) could occasionally bend and stoop. (AR 14).
The Appeals Council denied plaintiff's application for review. (AR 1).
III. APPLICABLE LEGAL STANDARDS
A. Sequential Evaluation Process
To qualify for disability benefits, a claimant must show that the claimant is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted). The impairment must render the claimant incapable of performing the work claimant previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).
In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:
(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920); see also Molina, 674 F.3d at 1110 (same).
(2) Is the claimant's alleged impairment sufficiently severe to limit the claimant's ability to work? If not, the claimant is not disabled. If so, proceed to step three.
(3) Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If not, proceed to step four.
(4) Does the claimant possess the residual functional capacity to perform claimant's past relevant work? If so, the claimant is not disabled. If not, proceed to step five.
(5) Does the claimant's residual functional capacity, when considered with the claimant's age, education, and work
experience, allow the claimant to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled.
The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098); see also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (claimant carries initial burden of proving disability).
B. Standard of Review
Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legal error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 (9th Cir. 1995)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)).
To determine whether substantial evidence supports a finding, a court must "'consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing the ALJ's conclusion, a court may not substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457).
IV. DISCUSSION
Plaintiff contends that the ALJ failed properly to evaluate the credibility of his subjective complaints. (Plaintiff's Motion at 6-11). The Court agrees. As the Court cannot find that the ALJ's error was harmless, a remand is warranted.
A. Pertinent Law
Questions of credibility and resolutions of conflicts in the testimony are functions solely of the Commissioner. Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). If the ALJ's interpretation of the claimant's testimony is reasonable and is supported by substantial evidence, it is not the court's role to "second-guess" it. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).
An ALJ is not required to believe every allegation of disabling pain or other non-exertional impairment. Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). If the record establishes the existence of a medically determinable impairment that could reasonably give rise to symptoms assertedly suffered by a claimant, an ALJ must make a finding as to the credibility of the claimant's statements about the symptoms and their functional effect. Robbins, 466 F.3d at 883 (citations omitted). Where the record includes objective medical evidence that the claimant suffers from an impairment that could reasonably produce the symptoms of which the claimant complains, an adverse credibility finding must be based on clear and convincing reasons. Carmickle v. Commissioner, Social Security Administration, 533 F.3d 1155, 1160 (9th Cir. 2008) (citations omitted). The only time this standard does not apply is when there is affirmative evidence of malingering. Id. The ALJ's credibility findings "must be sufficiently specific to allow a reviewing court to conclude the ALJ rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit the claimant's testimony." Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004).
To find the claimant not credible, an ALJ must rely either on reasons unrelated to the subjective testimony (e.g., reputation for dishonesty), internal contradictions in the testimony, or conflicts between the claimant's testimony and the claimant's conduct (e.g., daily activities, work record, unexplained or inadequately explained failure to seek treatment or to follow prescribed course of treatment). Orn, 495 F.3d at 636; Robbins, 466 F.3d at 883; Burch, 400 F.3d at 680-81; Social Security Ruling ("SSR") 96-7p. Although an ALJ may not disregard a claimant's testimony solely because it is not substantiated affirmatively by objective medical evidence, the lack of medical evidence is a factor that the ALJ can consider in his credibility assessment. Burch, 400 F.3d at 681.
Social Security rulings are binding on the Administration. See 20 C.F.R. § 402.35(b)(1); Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990) (citations omitted). Courts generally defer to Social Security Rulings unless they are plainly erroneous or inconsistent with the Social Security Act or regulations. Holohan v. Massanari, 246 F.3d 1195, 1202 n.1 (9th Cir. 2001) (citations omitted); Paxton v. Secretary of Health and Human Services, 856 F.2d 1352, 1356 (9th Cir. 1988) (citations omitted).
B. Analysis
Here, as noted above, the ALJ concluded that plaintiff's subjective complaints were "not credible to the extent they [were] inconsistent with the [ALJ's] residual functional capacity assessment." (AR 16). The ALJ gave no clear explanation, however, of the basis for the boilerplate credibility finding much less one that was sufficiently specific to allow the Court to conclude that plaintiff's credibility was discounted on permissible grounds. Defendant's contentions that relief is not warranted on the foregoing basis are not persuasive.
First, defendant argues that the ALJ's credibility determination is bolstered by the ALJ's finding that plaintiff had only a "mild limitation" in his ability to perform "activities of daily living" (AR 13) because an ALJ may discredit a claimant to the extent the ALJ finds inconsistencies between the claimant's subjective complaints and specific daily activities. (Defendant's Motion at 6). While the Court agrees that an inconsistency between a claimant's testimony and his conduct may support an ALJ's rejection of a claimant's credibility (see Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002)), it is not persuaded that the foregoing finding by the ALJ satisfied the ALJ's obligation to specify the basis for rejecting plaintiff's credibility in this case. The ALJ identified the foregoing mild limitation in plaintiff's mental abilities when considering the "paragraph B Criteria" used to determine the severity of plaintiff's mental impairments at step two (AR 13-14) - not when evaluating plaintiff's credibility in connection with the ALJ's residual functional capacity assessment at step four. See, e.g., Cohoon v. Astrue, 2011 WL 3841568, at *6 (D. Or. Aug. 30, 2011) (rejecting argument that ALJ properly discredited testimony regarding difficulty with concentration and symptoms of depression because plaintiff's alleged subjective symptoms conflicted with ALJ's finding at step two that plaintiff's non-severe mental impairment caused "no more than mild limitations in mental functioning"; and noting that Paragraph B criteria are used to rate severity of mental impairments at steps 2 and 3 and "are distinct from the mental [residual functional capacity] assessment [and concomitant evaluation of plaintiff's credibility] which occurs at steps four and five") (citation and quotation marks omitted); see also SSR 96-8P, at *4 ("[L]imitations identified in the 'paragraph B' . . . criteria are not [a residual functional capacity] assessment but are used to rate the severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation process."); id. (where claimant alleges limitations due to subjective symptoms (i.e., pain) ALJ's residual functional capacity assessment must, inter alia, thoroughly discuss and analyze "objective medical and other evidence, including the individual's complaints of pain and other symptoms" and "[resolve] any inconsistencies in the evidence as a whole. . . ."). This Court may not affirm the ALJ's credibility determination based on reasons not articulated by the ALJ. See Molina, 674 F.3d at 1121 (citing Securities and Exchange Commission v. Chenery Corp., 332 U.S. 194, 196 (1947)) ("[courts] may not uphold an [ALJ's] decision on a ground not actually relied on by the agency"); Orn, 495 F.3d at 630 ("We review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely."); see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) ("We are constrained to review the reasons the ALJ asserts.").
Even so, a conclusory finding that plaintiff had a "mild limitation" in his "activities of daily living" is not a sufficient reason for discounting plaintiff's credibility where, like here, the ALJ failed to identify any specific daily activities that were inconsistent with plaintiff's subjective complaints. See Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (en banc) (ALJ may discount claimant's credibility due to inconsistencies between claimant's "daily activities" and subjective complaints only "upon making specific findings relating to the claimant's daily activities") (citation omitted).
Second, defendant points to the ALJ's statements that plaintiff's psychiatric records reflected "psychiatric symptoms [which were] stable on medication" and that the state-agency reviewing psychiatrist opined that plaintiff's "non-severe psychiatric impairment [] was . . . stable on medication." (AR 14-15). The foregoing findings essentially amount to a determination that plaintiff's subjective complaints are inconsistent with the objective medical evidence. (AR 15-16). However, as noted above, the lack of objective medical evidence to support subjective symptom allegations alone is not sufficient to discount a claimant's credibility. See Burch, 400 F.3d at 681.
Finally, the Court cannot conclude that the ALJ's error was harmless because it cannot "confidently conclude that no reasonable ALJ, when fully crediting the [plaintiff's] testimony, could have reached a different disability determination." Stout, 454 F.3d at 1055-56. At the hearing, plaintiff testified, in part, that he could not concentrate long enough to read and that he was fired from his prison job (i.e., snipping rubber off the toes of shoes) because he was unable to keep up with the other workers. (AR 41). The vocational expert testified that there would be no work available if plaintiff (or a hypothetical individual with the same characteristics as plaintiff) "would be off task 20 percent of the time due to inability to maintain concentration, persistence or pace and/or neuropathy." (AR 50).
Therefore, remand is warranted for the ALJ to reassess plaintiff's credibility. V. CONCLUSION
The Court need not, and has not adjudicated plaintiff's other challenges to the ALJ's decision, except insofar as to determine that a reversal and remand for immediate payment of benefits would not be appropriate. On remand, however, the ALJ may wish to reconsider whether the opinions of Dr. Ryan Zane, plaintiff's treating physician, have been adequately considered. (Plaintiff's Motion at 3-6).
For the foregoing reasons, the decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrative action consistent with this Opinion.
When a court reverses an administrative determination, "the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted). Remand is proper where, as here, additional administrative proceedings could remedy the defects in the decision. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989); see also Connett, 340 F.3d at 876 (remand is an option where the ALJ stated invalid reasons for rejecting a claimant's excess pain testimony).
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LET JUDGMENT BE ENTERED ACCORDINGLY.
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Honorable Jacqueline Chooljian
UNITED STATES MAGISTRATE JUDGE