Opinion
Case No. CV 16-4847 JC
03-06-2017
ROSA MORENA GONZALEZ, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER OF REMAND
I. SUMMARY
On July 1, 2016, Rosa Morena Gonzalez ("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; July 6, 2016 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 19, 2012, plaintiff filed an application for Disability Insurance Benefits alleging disability beginning on August 13, 2011, due to back, breathing, hernia, and heart problems. (Administrative Record ("AR") 16, 200). The Administrative Law Judge ("ALJ") examined the medical record and heard testimony from plaintiff (who was represented by counsel) and a vocational expert on November 3, 2014. (AR 28-56).
On January 9, 2015, the ALJ determined that plaintiff was not disabled through the date of the decision. (AR 16-24). Specifically, the ALJ found: (1) plaintiff suffered from the following severe impairments: degenerative disc disease of the cervical spine with cervical strain, degenerative disc disease of the lumbar spine with radiculopathy, dyspepsia, helicobacter pylori infection, gastroesophageal reflux disease, hyperlipidemia, and fracture of the left fibula (AR 18); (2) plaintiff's impairments, considered singly or in combination, did not meet or medically equal a listed impairment (AR 20); (3) plaintiff retained the residual functional capacity to perform medium work (20 C.F.R. § 404.1567(c)) with additional limitations (AR 20); (4) plaintiff could perform her past relevant work as a bakery packer (AR 22); (5) alternatively, there are also jobs that exist in significant numbers in the national economy that plaintiff could perform, specifically industrial cleaner, courtesy clerk, and furniture cleaner (AR 22-23); /// and (6) plaintiff's statements regarding the intensity, persistence, and limiting effects of subjective symptoms were not entirely credible (AR 20-21).
The ALJ determined that plaintiff could (i) occasionally climb ladders, ropes, and scaffolds; (ii) frequently climb ramps and stairs, crouch, balance, stoop, crawl, and kneel; and (iii) occasionally reach overhead with the upper extremities. (AR 20).
On May 4, 2016, 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 the 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 required to use the following 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.///
(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.Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th Cir. 2006) (citations omitted); see also 20 C.F.R. § 404.1520(a)(4) (explaining five-step sequential evaluation process).
(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. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted).
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)).
While an ALJ's decision need not discuss every piece of evidence or be drafted with "ideal clarity," at a minimum it must explain the ALJ's reasoning with sufficient specificity and clarity to "allow[] for meaningful review." Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (citations and internal quotation marks omitted); Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (citations omitted); see also Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008) (ALJ must provide "accurate and logical bridge" between evidence and conclusion that claimant is not disabled so reviewing court "may assess the validity of the agency's ultimate findings") (citation and quotation marks omitted); see generally 42 U.S.C. § 405(b)(1) ("ALJ's unfavorable decision must, among other things, "set[] forth a discussion of the evidence" and state "the reason or reasons upon which it is based").
An ALJ's decision to deny benefits must be upheld if the evidence could reasonably support either affirming or reversing the decision. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). Nonetheless, a court may not affirm "simply by isolating a 'specific quantum of supporting evidence.'" Id. at 882 (citation omitted). In addition, federal courts may review only the reasoning in the administrative decision itself, and may affirm a denial of benefits only for the reasons upon which the ALJ actually relied. Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (citation omitted).
Even when an ALJ's decision contains error, it must be affirmed if the error was harmless. Treichler v. Commissioner of Social Security Administration, 775 F.3d 1090, 1099 (9th Cir. 2014). An ALJ's error is harmless if (1) it was inconsequential to the ultimate nondisability determination; or (2) despite the error, the ALJ's path may reasonably be discerned, even if the ALJ's decision was drafted with less than ideal clarity. Id. (citation and quotation marks omitted).
A reviewing court may not conclude that an error was harmless based on independent findings gleaned from the administrative record. Brown-Hunter, 806 F.3d at 492 (citations omitted). When a reviewing court cannot confidently conclude that an error was harmless, a remand for additional investigation or explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (citations omitted).
IV. DISCUSSION
Plaintiff contends that the ALJ failed to provide clear and convincing reasons for rejecting plaintiff's subjective complaints. (Plaintiff's Motion at 7-8). As discussed below, the Court agrees. Since the Court cannot find the ALJ's error to be harmless, a remand is warranted.
A. Pertinent Law
When determining disability, an ALJ is required to consider a claimant's impairment-related pain and other subjective symptoms at each step of the sequential evaluation process. 20 C.F.R. §§ 404.1529(a) & (d). Accordingly, when a claimant presents "objective medical evidence of an underlying impairment which might reasonably produce the pain or other symptoms [the claimant] alleged," the ALJ is required to determine the extent to which the claimant's statements regarding the intensity, persistence, and limiting effects of his or her symptoms ("subjective statements" or "subjective complaints") are consistent with the record evidence as a whole and, consequently, whether any of the individual's symptom-related functional limitations and restrictions are likely to reduce the claimant's capacity to perform work-related activities. 20 C.F.R. §§ 404.1529(a), (c)(4); Social Security Ruling ("SSR") 16-3p, 2016 WL 1119029, /// /// /// /// at *4-*9; SSR 96-7p, 1996 WL 374186, at *1-*5. When an individual's subjective statements are inconsistent with other evidence in the record, an ALJ may give less weight to such statements and, in turn, find that the individual's symptoms are less likely to reduce the claimant's capacity to perform work-related activities. See SSR 16-3p, 2016 WL 1119029, at *7-*8; SSR 96-7p, 1996 WL 374186, at *1-*3. In such cases, when there is no affirmative finding of malingering, an ALJ may "reject" or give less weight to the individual's subjective statements "by providing specific, clear, and convincing reasons for doing so." Brown-Hunter, 806 F.3d at 488-89. This requirement is very difficult to satisfy. See Garrison, 759 F.3d at 1015 ("The clear and convincing standard is the most /// demanding required in Social Security cases.") (citation and quotation marks omitted).
Social Security Rulings reflect the Social Security Administration's ("SSA") official interpretation of pertinent statutes, regulations, and policies. 20 C.F.R. § 402.35(b)(1). Although they "do not carry the 'force of law,'" Social Security Rulings "are binding on all components of the . . . Administration[,]" and are entitled to deference if they are "consistent with the Social Security Act and regulations." 20 C.F.R. § 402.35(b)(1); Bray v. Commissioner of Social Security Administration, 554 F.3d 1219, 1224 (9th Cir. 2009) (citations and quotation marks omitted); see also Heckler v. Edwards, 465 U.S. 870, 873 n.3 (1984) (discussing weight and function of Social Security rulings). Effective March 28, 2016, the SSA issued SSR 16-3p which superseded SSR 96-7p and, in part, eliminated use of the term "credibility" from SSA "sub-regulatory policy[]" in order to "clarify that subjective symptom evaluation is not an examination of an individual's [overall character or truthfulness] . . . [and] more closely follow [SSA] regulatory language regarding symptom evaluation." See SSR 16-3p, 2016 WL 1119029, at *1-*2, *10; see also 2016 WL 1237954, *1 (correcting SSR 16-3p effective date to read March 28, 2016). SSR 16-3p became effective after the ALJ issued the decision in the instant case but before the Appeals Council denied review. Nonetheless, the possible applicability of SSR 16-3p need not be resolved here since the ALJ's evaluation of plaintiff's subjective complaints in this case fails to pass muster whether SSR 16-3p or its predecessor, SSR 96-7p, govern.
It appears to this Court, based upon its research of the origins of the requirement that there be "specific, clear and convincing" reasons to reject or give less weight to an individual's subjective statements absent an affirmative finding of malingering, that such standard of proof remains applicable irrespective of whether SSR 96-7p or SSR 16-3p governs. See Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014) (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989), Gallant v. Heckler, 753 F.2d 1450, 1455 (9th Cir. 1984), Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995), and Molina, 674 F.3d at 1112).
An ALJ's decision "must contain specific reasons" for the weight given to the claimant's subjective statements, be consistent with and supported by the evidence in the case record, and be clearly articulated/sufficiently specific to make clear to the claimant and any subsequent reviewer how the ALJ evaluated the individual's symptoms/the weight the ALJ gave to the individual's statements and the specific reasons for that weight. SSR 16-3p, 2016 WL 1119029, at *9; SSR 96-7p, 1996 WL 374186, at *2, *4. If an ALJ's evaluation of a claimant's statements is reasonable and is supported by substantial evidence, it is not the court's role to second-guess it. See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted).
B. Analysis
First, the ALJ's statement that "notwithstanding the [plaintiff's] allegations of extreme pain and impairment, the record documents only intermittent medical treatment throughout the period at issue" (AR 21) is not sufficiently specific. An ALJ may give less weight to subjective complaints when a plaintiff fails to seek a level or frequency of medical treatment that is consistent with the alleged severity of the plaintiff's symptoms. See Molina, 674 F.3d at 1113 (citations omitted); SSR 16-3p, 2016 WL 1119029, at *7-*8; SSR 96-7p, 1996 WL 374186, *7. Here, however, the ALJ did not specify which of plaintiff's "allegations of extreme pain and impairment" he found to be undermined by the alleged intermittent treatment record or which evidence in the 1000 plus pages of medical records undermined the particular subjective statement. A general finding that unspecified medical records reflect infrequent medical treatment for all of plaintiff's subjective complaints does not enable the Court to determine whether the ALJ discredited any specific subjective complaint on permissible grounds. See, e.g., Brown-Hunter, 806 F.3d at 494 (legal error where ALJ fails to link claimant's testimony found not credible to particular parts of record supporting ALJ's non-credibility determination) (citing Burrell v. Colvin, 775 F.3d 1133, 1139 (9th Cir. 2014)); Treichler, 775 F.3d at 1103 ("vague allegation" that claimant's testimony is "not consistent with the objective medical evidence," without any "specific findings in support" insufficient to permit adequate review) (citation and quotation marks omitted); Robbins, 466 F.3d at 884-85 (even where decision provides "facially legitimate reasons" for rejecting claimant's subjective statements, court cannot affirm if ALJ decision's "complete lack of meaningful explanation" of credibility determination leaves reviewing court "nothing with which to assess its legitimacy"); Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) ("ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints.") (citations and quotation marks omitted).
Second, similarly, the ALJ's equivocal conclusion that plaintiff's daily activities "seem somewhat inconsistent" with unspecified "allegations of extreme pain and impairment" (AR 21) does not amount to a clear or convincing reason for discrediting any specific subjective complaint. The ALJ did not specify which of plaintiff's daily activities purportedly conflicted with which of plaintiff's subjective complaints. A general finding that plaintiff's collective daily activities are inconsistent with the alleged severity of some or all of plaintiff's subjective complaints is not sufficiently specific. See Brown-Hunter, 806 F.3d at 494 (citation omitted).
Moreover, substantial evidence does not support finding that plaintiff's daily activities were materially inconsistent with any specific subjective statement. See generally Garrison, 759 F.3d at 1016 (only where claimant's level of activity is inconsistent with his or her claimed limitations "would [daily] activities have any bearing on [] credibility") (citation and quotation marks omitted). For example, the ALJ wrote that plaintiff "testified that she continues to walk for exercise, often 35 minutes at a time." (AR 21). However, the record reflects that plaintiff's exercise was actually more limited than the ALJ's summary suggests -- i.e., plaintiff testified that she would "try" to exercise by walking around a park, but did so only "three or four days" per week for "30 to 35 minutes," and was unable to walk at all when it was hot during the summer. (AR 45-46); cf., e.g., Reddick, 157 F.3d at 722-23 (error for ALJ to paraphrase medical evidence in manner that is "not entirely accurate regarding the content or tone of the record"). The ALJ also wrote that plaintiff "admitted that her regular activities include some laundry and cooking chores." (AR 21). Nonetheless, plaintiff more precisely testified that she would only cook "twice a week," and her husband did most of the cooking. (AR 47). In addition, plaintiff testified that she was only able to wash her own clothes, and in her exertion questionnaire stated that she would "only wash a few clothes" and it took her only "5 minutes to fold." (AR 47, 210).
Even so, the mere fact that plaintiff retained some ability to perform certain minimal activities of daily living is not a clear and convincing reason for discrediting plaintiff's subjective complaints, especially where, like here, the ALJ did not find, and the record does not reflect, that such activities "consume[d] a substantial part of [plaintiff's] day." See Vertigan v. Halter, 260 F.3d 1044, 1049, 1050 (9th Cir. 2001) ("One does not need to be 'utterly incapacitated' in order to be disabled.") (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)); see also Garrison, 759 F.3d at 1016 ("[D]isability claimants should not be penalized for attempting to lead normal lives in the face of their limitations[.]") (citation and internal quotation marks omitted); cf. Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012) ("The critical differences between activities of daily living and activities in a full-time job are that a person has more flexibility in scheduling the former than the latter, can get help from other persons . . . and is not held to a minimum standard of performance, as she would be by an employer.") (citations omitted). ///
Third, the ALJ wrote "in consideration of the overall record, the [plaintiff's] subjective complaints are credited to the extent that [plaintiff] is found to have had [the residual functional capacity assessed in the ALJ's decision.]" (AR 22). Such language, however, is insufficient to identify any specific evidence that may have undermined any particular subjective complaint. Indeed, the statement suggests that the ALJ may erroneously have assessed plaintiff's residual functional capacity first, and then used it to determine plaintiff's credibility. See, e.g., Bjornson, 671 F.3d at 644-45 (boilerplate language that claimant's statements regarding subjective symptoms "are not credible to the extent they are inconsistent with the above residual functional capacity assessment" "gets things backwards"); Holmlund v. Colvin, 2014 WL 3965042, *8 n.12 (N.D. Cal. Aug. 13, 2014) ("boilerplate language" that claimant's subjective statements "are not credible to the extent that they are inconsistent with the above residual functional capacity assessment" is "backwards and has properly been critized [sic] by other courts as unintelligble [sic]").
Fourth, the ALJ also wrote "notwithstanding the [plaintiff's] allegations of extreme pain and impairment, the record documents . . . little objective evidence of impairment." (AR 21). Since the ALJ did not provide any other clear and convincing reason for discounting plaintiff's subjective complaints, however, this finding is not a proper basis for the ALJ's credibility determination. See Burch, 400 F.3d at 681 (Lack of objective medical evidence to support subjective symptom allegations cannot form the sole basis for discounting pain testimony.).
Fifth, as defendant suggests, there may have been other grounds for rejecting plaintiff's subjective statements. (Defendant's Motion at 4-6). Since the ALJ did not do so in the decision, however, this Court may not affirm the ALJ's non-disability determination based on such additional grounds. See Garrison, 759 F.3d at 1010 (citation omitted). ///
Finally, the Court cannot conclude that the ALJ's errors were harmless. Ultimately, the ALJ's decision lacks any "meaningful explanation" based on specific evidence in the record for rejecting any specific subjective complaint. See, e.g., Brown-Hunter, 806 F.3d at 492 (ALJ's failure adequately to specify reasons for discrediting claimant testimony, "will usually not be harmless"). Moreover, the vocational expert testified at the hearing that there would be no work for plaintiff (or a hypothetical individual with the same characteristics as plaintiff) if plaintiff needed "to miss work two or more times per month. . . ." (AR 54). In light of the significant functional limitations reflected in plaintiff's subjective statements, the Court 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.
Accordingly, a remand is warranted to permit the ALJ to re-evaluate plaintiff's subjective symptoms. /// /// /// /// /// /// /// /// /// /// /// /// /// /// 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.
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 proceedings can remedy defects in the original administrative proceeding. . . ." Garrison, 759 F.3d at 1019 (citation and internal quotation marks omitted); see also Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) (remand is an option where the ALJ stated invalid reasons for rejecting a claimant's excess pain testimony). --------
LET JUDGMENT BE ENTERED ACCORDINGLY. DATED: March 6, 2017
/s/_________
Honorable Jacqueline Chooljian
UNITED STATES MAGISTRATE JUDGE