Opinion
Case No. SACV 17-499 JC
12-28-2018
ELIZABETH ANN GRIMES, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER OF REMAND
I. SUMMARY
On March 20, 2017, plaintiff Elizabeth Ann Grimes filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's applications 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") (collectively "Motions"). The Court has taken the Motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; March 22, 2017 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 16, 2013, and February 10, 2014, plaintiff filed applications for Disability Insurance Benefits and Supplemental Security Income, respectively, alleging disability beginning on February 7, 2013, due to systemic sclerosis, scleroderma, fibromyalgia, arthritis, multiple back injuries, stomach problems, hernia, blood circulation problems, and digital ulcers. (Administrative Record ("AR") 20, 156, 162, 188). The Administrative Law Judge ("ALJ") examined the medical record, and on June 2, 2015, heard testimony from plaintiff (who was represented by counsel) and a vocational expert. (AR 34-57).
On July 16, 2015, the ALJ determined that plaintiff was not disabled through the date of the decision. (AR 20-28). Specifically, the ALJ found: (1) plaintiff suffered from the following severe impairments: systemic sclerosis, diffuse cutaneous scleroderma, and fibromyalgia (AR 22-23); (2) plaintiff's impairments, considered individually or in combination, did not meet or medically equal a listed impairment (AR 23-24); (3) plaintiff retained the residual functional capacity to perform a range of light work (20 C.F.R. §§ 404.1567(b), 416.967(b)) with additional limitations (AR 27); (4) plaintiff could perform past relevant work as an office manager, telephone solicitor, auditor, loan officer, and purchasing agent (AR 26-27); (5) alternatively, there are jobs that exist in significant numbers in the national economy that plaintiff could perform (AR 27-28); and (6) plaintiff's statements regarding the intensity, persistence, and limiting effects of her subjective symptoms were "not entirely credible insofar as they are not fully corroborated by the medical evidence of record." (AR 24).
The ALJ determined that plaintiff could (i) lift and/or carry up to 20 pounds occasionally and 10 pounds frequently; (ii) stand and/or walk up to six hours, and sit up to six hours, in an eight-hour workday with normal breaks; (iii) frequently climb ramps and stairs; (iv) occasionally climb ladders, ropes or scaffolds; (v) frequently bend, kneel, stoop, crouch and crawl; (vi) perform frequent fingering with the bilateral upper extremities; and (vii) not do work involving concentrated exposure to extreme cold. (AR 24).
On January 18, 2017, the Appeals Council denied plaintiff's application for review. (AR 1).
III. APPLICABLE LEGAL STANDARDS
A. Administrative Evaluation of Disability Claims
To qualify for disability benefits, a claimant must show that she 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). To be considered disabled, a claimant must have an impairment of such severity that she is incapable of performing work the claimant previously performed ("past relevant work") as well as any other "work which exists in the national economy." Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)).
To assess whether a claimant is disabled, an ALJ is required to use the five-step sequential evaluation process set forth in Social Security regulations. See Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th Cir. 2006) (citations omitted) (describing five-step sequential evaluation process) (citing 20 C.F.R. §§ 404.1520, 416.920). The claimant has the burden of proof at steps one through four - i.e., determination of whether the claimant was engaging in substantial gainful activity (step 1), has a sufficiently severe impairment (step 2), has an impairment or combination of impairments that meets or medically equals one of the conditions listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("Listings") (step 3), and retains the residual functional capacity to perform past relevant work (step 4). Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted). The Commissioner has the burden of proof at step five - i.e., establishing that the claimant could perform other work in the national economy. Id.
B. Federal Court Review of Social Security Disability Decisions
A federal court may set aside a denial of benefits only when the Commissioner's "final decision" was "based on legal error or not supported by substantial evidence in the record." 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The standard of review in disability cases is "highly deferential." Rounds v. Commissioner of Social Security Administration, 807 F.3d 996, 1002 (9th Cir. 2015) (citation and quotation marks omitted). Thus, an ALJ's decision must be upheld if the evidence could reasonably support either affirming or reversing the decision. Trevizo, 871 F.3d at 674-75 (citations 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) (ALJ error harmless if (1) inconsequential to the ultimate nondisability determination; or (2) ALJ's path may reasonably be discerned despite the error) (citation and quotation marks omitted).
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Trevizo, 871 F.3d at 674 (citation and quotation marks omitted). It is "more than a mere scintilla, but less than a preponderance." Id. When determining whether substantial evidence supports an ALJ's finding, a court "must consider the entire record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion[.]" Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted). ///
Federal courts review only the reasoning the ALJ provided, and may not affirm the ALJ's decision "on a ground upon which [the ALJ] did not rely." Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ's decision need not be drafted with "ideal clarity," it must, at a minimum, set forth the ALJ's reasoning "in a way that allows for meaningful review." Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099); see generally Securities and Exchange Commission v. Chenery Corp., 332 U.S. 194, 196-97 (1947) (administrative agency's determination must be set forth with clarity and specificity).
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 a reversal or remand is warranted because the ALJ materially erred in evaluating plaintiff's statements regarding her symptoms. (Plaintiff's Motion at 4-11). This Court agrees.
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), 416.929(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), 416.929(a), (c)(4); Social Security Ruling ("SSR") 16-3p, 2017 WL 5180304, at *4-*10; 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, 2017 WL 5180304, at *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 "only 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 Trevizo, 871 F.3d at 678 ("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). Social Security Ruling 16-3p 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, 2017 WL 5180304, at *1-*2, *10-*11. The SSA republished SSR 16-3p making no change to the substantive policy interpretation regarding evaluation of a claimant's subjective complaints, but clarifying that the SSA would apply SSR 16-3p only "[when making] determinations and decisions on or after March 28, 2016[,]" and that federal courts should apply "the rules [regarding subjective symptom evaluation] that were in effect at the time" an ALJ's decision being reviewed became final. SSR 16-3p, 2017 WL 5180304, at *1, *13 n.27. It is unclear from such language whether SSR 16-3p is retroactive where, like here, the ALJ issued the decision under review before SSR 16-3p became "applicable" on March 28, 2016, but the Appeals Council denied review (and thus the Commissioner's decision became "final") after. The issue of retroactivity, however, need not be resolved here since the ALJ's evaluation of plaintiff's subjective complaints fails to pass muster whether SSR 16-3p or its predecessor, SSR 96-7p, governs.
It appears to the 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 Trevizo, 871 F.3d at 678-79 & n.5 (citations omitted).
An ALJ's decision "must contain specific reasons" supported by substantial evidence in the record for giving less weight to a claimant's statements. SSR 16-3p, 2017 WL 5180304, at *10; SSR 96-7p, 1996 WL 374186, at *2, *4. An ALJ must clearly identify each statement being rejected and the particular evidence in the record which purportedly undermines the statement. Treichler, 775 F.3d at 1103 (citation omitted).
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). When an ALJ fails properly to discuss a claimant's subjective complaints, however, the error may not be considered harmless "unless [the Court] can confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different disability determination." Stout, 454 F.3d at 1056; see also Brown-Hunter, 806 F.3d at 492 (ALJ's erroneous failure to specify reasons for rejecting claimant testimony "will usually not be harmless").
B. Analysis
Here, as discussed more fully below, a remand is warranted because there are multiple, material errors in the ALJ's evaluation of plaintiff's subjective complaints.
First, the ALJ's overall discussion of plaintiff's subjective complaints is not entirely complete or accurate. The ALJ summarized plaintiff's subjective statements in only a single sentence, specifically "The [plaintiff] alleges disabling limitations due to her symptoms including difficulties with exertion and persistence secondary to abdominal discomfort and musculoskeletal impairments." (AR 24) (citing Exhibits 3E, 4E, 16F, and unspecified "Hearing Testimony"). For at least the reasons discussed below, the ALJ's summary not only inaccurately depicts the true degree of intensity, persistence, and limiting effects of symptoms that plaintiff has alleged, but also mischaracterizes and/or fails entirely to account for many of plaintiff's subjective complaints. Such errors alone warrant a remand. See Regennitter v. Commissioner of Social Security Administration, 166 F.3d 1294, 1297 (9th Cir. 1999) (finding based on "inaccurate characterization of the evidence" not "clear and convincing" reason for rejecting claimant's statements regarding symptoms); Reddick v. Chater, 157 F.3d 715, 722-23 (9th Cir. 1998) (error for ALJ to paraphrase record evidence in manner that is "not entirely accurate regarding the content or tone of the record"); Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (ALJ may not selectively rely on only the portions of record which support non-disability) (citations omitted); Valenzuela v. Astrue, 247 Fed. Appx. 927, 929 (9th Cir. 2007) (ALJ's rejection of claimant's allegations regarding severity of pain unsupported by substantial evidence when based in part on "inaccurate characterization" of claimant's testimony) (citations omitted); see generally Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (ALJ must provide an explanation when he rejects "significant probative evidence") (citation omitted).
Second, to the extent that the ALJ rejected plaintiff's subjective statements solely because they were "not fully corroborated by the medical evidence of record" (AR 24), the ALJ's reasoning is insufficient to support the ALJ's findings regarding plaintiff's testimony. See Burch, 400 F.3d at 681 (lack of objective medical evidence to support subjective symptom allegations cannot form sole basis for discounting pain testimony); see also 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2) ("statements about the intensity and persistence of [claimant's] pain or other symptoms or about the effect [such] symptoms have on [claimant's] ability to work" may not be rejected "solely because the available objective medical evidence does not substantiate [claimant's] statements" ); SSR 16-3p, 2016 WL 1119029, at *5 (same); SSR 96-7p, 1996 WL 374186, at *6 (same).
Third, the ALJ also erred to the extent he rejected plaintiff's subjective complaints as inconsistent with plaintiff's daily activities (AR 24), because the ALJ has not given clear or convincing reasons for doing so. An ALJ may properly give less weight to a claimant's subjective complaints to the extent the severity of symptom-related limitations are inconsistent with the claimant's reported daily activities. See Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014) (citation omitted). Here, however, the ALJ has not given clear or convincing reasons for rejecting any specific subjective complaint on such a basis. For example, the ALJ generally failed to specify which of plaintiff's 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 to permit the Court to determine whether the ALJ rejected plaintiff's subjective complaints on any permissible ground. See Treichler, 775 F.3d at 1103 ("ALJ must identify the testimony that was not credible, and specify 'what evidence undermines the claimant's complaints.") (citation omitted); see also Brown-Hunter, 806 F.3d at 494 (legal error where ALJ failed to identify specific testimony found not credible and failed to "link that testimony to the particular parts of the record supporting [ALJ's] non-credibility determination") (citation omitted).
The ALJ did write "[plaintiff] has reported engaging in activities including self-care, housework, errands (including driving and use of public transportation), and social and leisure activities." (AR 24) (citing Exhibit 5E [AR 203-10]). Nonetheless, the cited exhibit actually reflects that plaintiff experienced extreme difficulty when attempting to perform certain household chores and with self care. (See, e.g., AR 204 [plaintiff "requires rest after small periods of any activity" and requires help from friends for "any . . . physical activity lasting longer than 15-20 [minutes] at a time" (i.e., grocery shopping)]; AR 204 [needs "help" with certain personal care (i.e., when clothing has "lots of buttons")]; AR 204 [plaintiff needs help "moving anything heavier than 10-15 pounds"]; AR 205 [plaintiff prepares only simple meals (i.e., "cereal or instant oatmeal or boiled eggs" for breakfast and "sandwiches and frozen dinners" for lunch and dinner) and "cannot open tight jars or operate a manual can opener"]; AR 205 [plaintiff does light household chores "depending on energy level" and "[m]ay need to take several breaks" in the process (e.g., plaintiff took three days and needed "at least a dozen breaks" in order to complete social security forms)]; AR 206 [a friend or family member must prepare meals and assist with household chores when plaintiff becomes "bedridden due to [her] episodes"]; see also AR 202 [plaintiff's scleroderma can put plaintiff "in a state of paralysis" such that she becomes "bedridden"]; AR 207 [noting plaintiff's "episodes went from monthly to daily in the last year and a half"])). In addition, plaintiff stated that it had been "months to years" since she had been able to pursue any hobbies and interests, and "a few months" since plaintiff had gone to church. (AR 207). Plaintiff also generally stated that she could only lift and carry "less than 10-15 pounds," and when not having "an active episode" she could walk only "10-15 minutes" and then needed to rest for up to ten minutes before she could resume walking. (AR 208). Plaintiff also noted that when she is having an episode, she "cannot be alone," is "usually in bed," and does not drive "when heavily medicated." (AR 206). Moreover, at the hearing plaintiff testified that the last time she had driven a car "was probably six months ago." (AR 40). Plaintiff also acknowledged that she had used "public transportation," but plaintiff did not, and was not asked to specify, how often she did so, rather than obtaining rides from friends (as plaintiff said she would). (AR 40). The foregoing incorrect - or at least incomplete - characterization of plaintiff's statements calls into question the validity of both the ALJ's evaluation of plaintiff's subjective complaints and the ALJ's decision as a whole. See Regennitter, 166 F.3d at 1297; Valenzuela, 247 Fed. Appx. at 929.
Even so, the mere fact that plaintiff engaged in certain minimal daily activities is not a basis for wholesale rejection of plaintiff's subjective complaints. A claimant need not be "utterly incapacitated" to qualify for disability benefits. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (citations omitted). An ALJ may properly give less weight to a claimant's subjective complaints where (1) the claimant's alleged degree of symptom-related limitation is patently inconsistent with the claimant's actual "level of activity" (e.g., a claimant who allegedly has significant difficulty walking still runs marathons); or (2) the ALJ makes "a specific finding" that the claimant "is able to spend a substantial part of [the] day engaged in pursuits involving the performance of physical functions that are transferable to a work setting. . . ." Garrison, 759 F.3d at 1016 (citations and quotation marks omitted); Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (citation omitted); Fair, 885 F.2d at 603. Here, the ALJ did not so find. Nor does the record discussed above reflect that either ground would support rejecting any particular subjective complaint expressed by plaintiff.
Fourth, the ALJ wrote that "[v]ery little significant treatment or functional limitation is evident following [plaintiff's] alleged onset date." (AR 25). An ALJ may properly give less weight to subjective statements due to a plaintiff's unexplained or inadequately explained failure to seek or be prescribed a level or frequency of medical treatment that is consistent the alleged severity of a plaintiff's subjective symptoms. Molina, 674 F.3d at 1113. Here, however, the record evidence does not reasonably support such a determination. For example, the ALJ wrote: "December 2014, referral notes indicate that the [plaintiff's] symptoms were improved with medication and intermittent in nature." (AR 25) (citing Exhibit 16F at 5 [AR 449]). An ALJ may also give less weight to a plaintiff's subjective complaints to the extent effective medical treatment alleviated the severity of plaintiff's symptoms. See generally Warre v. Commissioner of Social Security Administration, 439 F.3d 1001, 1006 (9th Cir. 2006) ("Impairments that can be controlled effectively with medication are not disabling. . . .") (citations omitted). The cited referral note, however, more precisely appears to indicate that while plaintiff did experience "on and off" gastric pain and burning, any "improvement" in symptoms from medication was merely "transient." (AR 449). The ALJ also noted that medical records from June 2014 reflected that a "headache" for which plaintiff had sought emergency treatment "improved with medication. . . ." (AR 25) (citing Exhibit 17F at 152 [AR 630]). Nonetheless, headaches are not among the impairments plaintiff claims.
Similarly, the ALJ wrote that in treatment records from an April 14, 2015 follow up examination, plaintiff reported "effective results" from an epidural steroid injection she had received on April 2, 2015. (AR 25) (citing Exhibit 20F at 7, 9 [AR 712, 714]). An ALJ may give less weight to a plaintiff's subjective complaints to the extent plaintiff was adequately treated with conservative measures. See Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (evidence that claimant "responded favorably to conservative treatment" inconsistent with plaintiff's reports of disabling pain); Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) ("[E]vidence of 'conservative treatment' is sufficient to discount a claimant's testimony regarding severity of an impairment.") (citation omitted), cert. denied, 552 U.S. 1141 (2008); SSR 16-3p, 2016 WL 1119029, at *7-*8 (ALJ may give less weight to subjective statements where "the frequency or extent of the treatment sought by an individual is not comparable with the degree of the individual's subjective complaints. . . ."); SSR 96-7p, 1996 WL 374186, *7 (A "[claimant's] statements may be less credible if the level or frequency of treatment is inconsistent with the level of complaints. . . ."). Here, however, the cited follow-up note more precisely stated that the "epidural" generally had a "positive outcome," not that plaintiff had reported as much. (AR 712). Consistently, an operative report from the April 2, 2015 epidural procedure noted merely that plaintiff had "tolerated the procedure well, without any complications," and that plaintiff had been "discharged without complaints." (AR 714).
More significantly, the April 14, 2015 treatment note indicates that, even after the epidural injection, plaintiff's doctor had continued plaintiff on powerful, narcotic pain medications (i.e., 30mg Oxcodone tablet six times a day, Fentanyl extended release patch every 72 hours). (AR 712). Likewise, and contrary to the ALJ's suggestion that the record evidences "little significant treatment," at the hearing plaintiff testified, in part, that she was taking "Roxycodone, a Fentanyl patch" for pain along with "naproxen for inflammation," and that her doctor had recommended surgery to implant a pump in plaintiff's stomach, purportedly because plaintiff had "maxed out in terms of oral 'pain' medication." (AR 43-44); cf., e.g., Lapeirre-Gutt v. Astrue, 382 Fed. Appx. 662, 664 (9th Cir. 2010) ("A claimant cannot be discredited for failing to pursue non-conservative treatment options where none exist."). A disability report and plaintiff's pain questionnaire list Norco, Oxycodone, and Fentanyl patches among plaintiff's pain medications as well. (AR 191, 201). Such evidence reflects that plaintiff's medication was far from the "conservative" course of treatment the ALJ's decision suggests. See, e.g., Hanes v. Colvin, 651 Fed. Appx. 703, 706 (9th Cir. 2016) (ALJ's finding that treatment had been "routine and/or conservative" deemed "baffling in light of the record" which showed that plaintiff had used "high doses . . . of powerful narcotic painkillers" including Fentanyl, and had undergone "spinal injections"); Ligons v. Berryhill, 2018 WL 4502483, *4 (E.D. Cal. Sept. 20, 2018) (ALJ erroneously characterized treatment regimen including Fentanyl and "other strong narcotic pain medications" as conservative) (citations omitted); Durham v. Colvin, 2015 WL 9305627, *11 (C.D. Cal. Dec. 21, 2015), judgment entered, 2015 WL 9305628 (C.D. Cal. Dec. 21, 2015) (courts "have generally viewed the use of narcotic pain medication as non-conservative treatment" when "[taken] in conjunction with other treatments which were also not conservative") (citations omitted); Molter v. Astrue, 2010 WL 2348738, *5 (E.D. Cal. June 8, 2010) (ALJ incorrectly referred to treatment as "conservative" where plaintiff had been prescribed Fentanyl - a "heavy duty medication" used for treating "chronic pain" which has "serious potential side effects") (citations omitted).
Finally, the Court cannot find that the ALJ's errors were harmless. At plaintiff's hearing, the vocational expert essentially testified that there would be no work available if plaintiff (or a hypothetical individual with the same characteristics as plaintiff) had even slightly greater functional limitations (i.e., "occasional" rather than "frequent" fingering with bilateral upper extremities), and/or needed to be "off task ten percent of the workday" and "absent from work two days a month." (AR 50-53). In light of the significant functional limitations reflected in plaintiff's subjective statements - particularly plaintiff's assertions that when having one of her (potentially daily) episodes she could not be alone, and usually needed to be in bed and "heavily medicated" (see AR 202, 206-08) - this Court cannot confidently conclude that the ALJ's errors were inconsequential to the ultimate disability determination.
Accordingly, a remand is warranted to permit an ALJ to re-evaluate plaintiff's subjective statements. /// /// /// 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: December 28, 2018
/s/_________
Honorable Jacqueline Chooljian
UNITED STATES MAGISTRATE JUDGE