Summary
noting low ejection fraction, heart murmur, shortness of breath with exertion and hospitalization due to chest pains and shortness of breath
Summary of this case from Page v. BerryhillOpinion
Case No. EDCV 14-2626-JPR
03-31-2016
AUGUSTINE PEREZ, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER
I. PROCEEDINGS
Plaintiff seeks review of the Commissioner's final decision denying his application for Social Security disability insurance benefits ("DIB"). The parties consented to the jurisdiction of the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). The matter is before the Court on the parties' Joint Stipulation, filed October 6, 2015, which the Court has taken under submission without oral argument. For the reasons stated below, the Commissioner's decision is reversed and this matter is remanded for further administrative proceedings.
II. BACKGROUND
Plaintiff was born in 1960. (Administrative Record ("AR") 157.) He has a limited education, is able to communicate in English, and worked as a glazier. (AR 23, 54, 157.)
On November 9, 2011, Plaintiff submitted an application for DIB, alleging that he had been unable to work since March 23, 2011, because of heart, right-shoulder, and knee problems; right-wrist carpal-tunnel syndrome and arthritis; right-ankle tendinitis; anxiety; borderline hypertension; osteoporosis; chronic headaches and migraines; and muscle spasms in his legs. (AR 172.) After his application was denied initially and on reconsideration, he requested a hearing before an Administrative Law Judge. (AR 90, 98, 104.) A hearing was held on June 25, 2013, at which Plaintiff, who was represented by counsel, testified, as did a vocational expert. (AR 30-64.) In a written decision issued August 30, 2013, the ALJ found Plaintiff not disabled. (AR 13-24.) On November 18, 2014, the Appeals Council denied Plaintiff's request for review. (AR 1.) This action followed.
III. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision should be upheld if they are free of legal error and supported by substantial evidence based on the record as a whole. See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla but less than a preponderance. Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for the Commissioner's. Id. at 720-21.
IV. THE EVALUATION OF DISABILITY
People are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or has lasted, or is expected to last, for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).
A. The Five-Step Evaluation Process
The ALJ follows a five-step evaluation process to assess whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim must be denied. § 404.1520(a)(4)(i).
If the claimant is not engaged in substantial gainful activity, the second step requires the Commissioner to determine whether he has a "severe" impairment or combination of impairments significantly limiting his ability to do basic work activities; if not, the claimant is not disabled and his claim must be denied. § 404.1520(a)(4)(ii).
If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, disability is conclusively presumed. § 404.1520(a)(4)(iii).
If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient residual functional capacity ("RFC") to perform his past work; if so, he is not disabled and the claim must be denied. § 404.1520(a)(4)(iv). The claimant has the burden of proving he is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets that burden, a prima facie case of disability is established. Id.
RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989).
If that happens or if the claimant has no past relevant work, the Commissioner then bears the burden of establishing that the claimant is not disabled because he can perform other substantial gainful work available in the national economy. § 404.1520(a)(4)(v); Drouin, 966 F.2d at 1257. That determination comprises the fifth and final step in the sequential analysis. § 404.1520(a)(4)(v); Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.
B. The ALJ's Application of the Five-Step Procedure
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since March 23, 2011, his alleged onset date. (AR 15.) At step two, she concluded that Plaintiff had the severe impairments of coronary artery disease, chronic obstructive pulmonary disease, anxiety, depression, lumbar- and cervical-spine limitations, right-rotator-cuff tear, history of bilateral carpal-tunnel release surgery, fibromyalgia, bilateral knee arthritis, and right-ankle tendinitis. (Id.) At step three, she determined that Plaintiff's impairments did not meet or equal any of the impairments in the Listing. (Id.) At step four, she found that Plaintiff had the RFC to perform a range of light work with additional limitations. (AR 16-17.) Specifically, Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently; stand or walk two hours of an eight-hour workday with regular breaks; sit six hours of an eight-hour workday with regular breaks; push or pull without restriction other than as indicated for lifting and carrying; climb ramps and stairs occasionally; balance, stoop, kneel, and crouch occasionally; reach overhead with the right upper extremity occasionally; be exposed to extreme cold occasionally; work around moving, hazardous machinery occasionally; work at unprotected heights occasionally; understand and carry out simple instructions; make judgments on simple work-related decisions; interact appropriately with supervisors and coworkers in a routine work setting; and respond to usual work situations and changes in a routine work setting (AR 17); but Plaintiff could never climb ladders, ropes, or scaffolds; was limited to rare exposure to environmental irritants such as fumes, odors, dusts, and gases; and was restricted to only superficial interaction with the public (id.).
The ALJ concluded that Plaintiff was not capable of performing his past relevant work. (AR 22.) At step five, relying on the vocational expert's testimony, she found that Plaintiff could perform jobs existing in significant numbers in the national economy. (AR 23-24.) Accordingly, the ALJ found Plaintiff not disabled. (AR 24.)
V. DISCUSSION
Plaintiff claims that the ALJ erred in (1) rejecting his subjective complaints and the third-party statement of his wife and in (2) finding him capable of performing other work. (J. Stip. at 4.) Because the Court agrees with Plaintiff that the ALJ did not properly assess his credibility, it does not reach his other contentions.
A. The ALJ Did Not Give Clear and Convincing Reasons for Finding Plaintiff Only Partially Credible
1. Applicable law
An ALJ's assessment of symptom severity and claimant credibility is entitled to "great weight." See Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) (as amended); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985) (as amended Feb. 24, 1986). "[T]he ALJ is not required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A)." Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citation omitted).
In evaluating a claimant's subjective symptom testimony, the ALJ engages in a two-step analysis. See Lingenfelter, 504 F.3d at 1035-36. "First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment [that] could reasonably be expected to produce the pain or other symptoms alleged." Id. at 1036 (citation omitted). If such objective medical evidence exists, the ALJ may not reject a claimant's testimony "simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged." Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in original).
If the claimant meets the first test, the ALJ may discredit the claimant's subjective symptom testimony only if she makes specific findings that support the conclusion. See Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). Absent a finding or affirmative evidence of malingering, the ALJ must provide "clear and convincing" reasons for rejecting the claimant's testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (as amended); Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014). The ALJ may consider, among other factors, (1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; (3) the claimant's daily activities; (4) the claimant's work record; and (5) testimony from physicians and third parties. Rounds v. Comm'r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as amended); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the ALJ's credibility finding is supported by substantial evidence in the record, the reviewing court "may not engage in second-guessing." Thomas, 278 F.3d at 959.
2. Relevant background
In a function report dated December 2011, Plaintiff wrote that he had shortness of breath and pain throughout his body, including his joints, right shoulder, right arm, wrists, knees, and right ankle. (AR 200-04.) He could lift 10 pounds with his right arm and walk 50 yards. (AR 204.) He had trouble standing, raising his right hand above his head, and putting on his clothes. (AR 200, 204.) He also had problems with sleep, memory, attention, stress, changes in routine, and completing things he started. (AR 200, 204-05.) Plaintiff's activities included taking out the trash once a week, supervising family members performing yard work, going outside, and grocery shopping with his wife once a week. (AR 201-02.) He used a cane and was able to drive short distances. (AR 202, 204.)
At the hearing, in June 2013, Plaintiff testified that he had a torn rotator cuff in his right shoulder, torn ligaments in his right ankle, a history of carpal-tunnel release and knee surgeries, low-back pain, shortness of breath, migraine headaches, and side effects from his medications. (AR 33, 38, 45, 47, 51.) He claimed he could lift 10 pounds with his left arm and less than that with his right, walk for 20 minutes using a cane, and stand for 15 minutes, but he could not lift his right arm above his shoulder and had pain when sitting in an upright position. (AR 33, 45-46, 48.) He had swelling in his wrists, numbness in his hands, and tightness in his fingers, which made it difficult to write, button his clothing, or use a screwdriver. (AR 34-35.) Plaintiff stated that his doctor recommended surgery for his shoulder and neck, but he was waiting for approval on an MRI. (AR 36-37.) He had received mental-health treatment on only two occasions but thought he should resume treatment because he was feeling depressed over a recent separation from his wife. (AR 37-39.) He was taking anxiety medication prescribed by his primary-care physician. (Id.) Plaintiff testified that his brother helped with transportation, grocery shopping, laundry, and cleaning up after Plaintiff's dogs. (AR 41-42.)
3. Analysis
The ALJ found Plaintiff's "statements concerning the intensity, persistence and limiting effects of [his] symptoms" not credible to the extent they were inconsistent with the RFC. (AR 19.) She specifically identified Plaintiff's testimony that "he remains quite immobile due to his physical limitations" as being not credible. (AR 18.) The ALJ provided three reasons to support the adverse credibility determination.
First, the ALJ found Plaintiff's testimony not credible because his allegations regarding the severity of his symptoms and limitations "are greater than expected in light of the objective evidence of record." (AR 19.) The ALJ suggested that Plaintiff's "limited daily activities is a lifestyle choice and not due to any established impairment." (AR 18.) Because Plaintiff produced medical evidence of underlying impairments that could reasonably be expected to produce his symptoms, the lack of objective medical evidence corroborating Plaintiff's subjective symptom testimony could not alone support the ALJ's adverse credibility finding. See Robbins, 466 F.3d at 883 (explaining that ALJ may not make negative credibility finding "solely because" claimant's symptom testimony "is not substantiated affirmatively by objective medical evidence"); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (stating that ALJ may consider "lack of medical evidence" as factor in credibility analysis, but it "cannot form the sole basis for discounting pain testimony").
Plaintiff's medical records established severe impairments associated with significant restrictions. For example, an electrocardiography report showed Plaintiff's left ventricular function was severely impaired, with an ejection fraction between 20 and 25 percent (AR 19, 261-62), and Plaintiff's doctors noted a systolic heart murmur and shortness of breath with exertion (AR 20, 235, 236, 249, 251, 264, 280, 328, 331, 416). Plaintiff was diagnosed with congestive heart failure, coronary artery disease, and chronic obstructive pulmonary disease. (AR 15, 244, 247, 248, 249, 256, 329, 331, 332, 396, 405.) Plaintiff was also hospitalized because of chest pains and shortness of breath at least once after his alleged onset date. (AR 19, 248, 292, 327.)
With respect to Plaintiff's right shoulder, an MRI showed a rotator-cuff tear with full thickness tear of the anterior portion of the supraspinatus tendon, with mild retraction of the tendon and mild atrophy of the supraspinatus muscle. (AR 20, 229, 231, 395-96.) On examination, Plaintiff's doctors noted reduced range of motion, diminished strength, and increased pain with activity. (AR 20, 231, 232, 317, 410.) Surgical repair of the rotator cuff was recommended. (AR 231-32.) Plaintiff also had tenderness and osteoarthritis in the knees (AR 15, 244, 249, 332, 410), ambulated with a limp, and used a cane (AR 20, 251, 410, 413). An MRI of Plaintiff's right ankle showed enlargement and abnormal signal of a segment of the peroneus brevis tendon, reflecting degeneration or a partial tear. (AR 19, 239.) An x-ray of Plaintiff's pelvis confirmed bilateral degenerative joint disease (AR 378-79), and an x-ray of his lumbar spine showed multilevel discogenic disease and lumbar spondylosis (AR 20, 382). Thus, the absence of corroborating objective evidence was an insufficient reason for the ALJ to find Plaintiff's subjective symptom testimony less than fully credible, even were it in conjunction with another, permissible basis for finding him not credible. But as explained below, it was not.
The ALJ also found that Plaintiff's "failure to seek treatment from a mental health expert is inconsistent with the alleged severity of his alleged symptoms and functional limitations." (AR 18.) The ALJ noted that although Plaintiff reported a history of depression and anxiety, he had only a few appointments at Riverside County Mental Health and had not been treated by a psychiatrist or hospitalized for psychiatric treatment. (Id.) However, the medical record shows that Plaintiff was repeatedly diagnosed with anxiety and was taking mental-health medications prescribed by his doctors, including Effexor, Paxil, Xanax, and Cymbalta. (AR 243, 245, 256, 323, 324, 328, 331, 336, 411.) General practitioners and primary-care physicians often treat mental illnesses. See Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) ("[I]t is well established that primary care physicians (those in family or general practice) 'identify and treat the majority of Americans' psychiatric disorders.'" (citation omitted)); Gutierrez v. Astrue, No. 1:09CV0146 DLB, 2010 WL 729007, at *10 (E.D. Cal. Mar. 1, 2010) (when plaintiff took psychotropic medication prescribed by family practitioner, fact that claimant was "not being followed by a psychologist or a psychiatrist" failed to support ALJ's rejection of claimant's credibility).
Moreover, "it is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation." Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (citation omitted); Regennitter v. Comm'r of Soc. Sec. Admin., 166 F.3d 1294, 1299-300 (9th Cir. 1999) (noting that mental illness is "notoriously underreported"). Here, the medical record shows that Plaintiff apparently attempted suicide in June 2012 and was experiencing increased depression at the time of the hearing because he had separated from his wife. (AR 20, 39, 337.) That Plaintiff may have lacked the requisite insight into his condition to seek out regular mental-health treatment may in fact indicate the seriousness of his condition. See Nguyen, 100 F.3d at 1465; Rosas v. Colvin, No. CV 13-2756-SP, 2014 WL 3736531, at *11 (C.D. Cal. July 28, 2014) (claimant's limited treatment for mental illness not by itself clear and convincing reason for rejecting his credibility).
Finally, the ALJ found that Plaintiff "received routine, conservative, and non-emergency treatment since the alleged onset date" for his physical and mental impairments. (AR 19.) Conservative treatment can legitimately discredit a claimant's testimony. See Parra, 481 F.3d at 751. Here, however, the ALJ's finding of conservative treatment was not supported by the record. Plaintiff was consistently treated with a variety of medications during the period of his alleged disability, including a narcotic pain medication (Ultram (tramadol)). (AR 222, 226, 244, 246, 250, 269, 274, 287, 323, 411.) He also received steroid injections to treat neck and shoulder pain. (AR 50, 394, 403.) Characterization of such treatment as "conservative" may be inaccurate. See, e.g., Aguilar v. Colvin, No. CV 13-08307-VBK, 2014 WL 3557308, at *8 (C.D. Cal. July 18, 2014) ("It would be difficult to fault Plaintiff for overly conservative treatment when he has been prescribed strong narcotic pain medications."); Yang v. Colvin, No. CV 14-2138-PLA, 2015 WL 248056, at *6 (C.D. Cal. Jan. 20, 2015) (finding that spinal epidural injections are not conservative treatment).
Moreover, the record shows that the treatment he was prescribed failed to alleviate his symptoms and pain. (See AR 20 (ALJ noting that "[p]hysical therapy did not result in any significant improvement"), 251, 393, 395, 403, 409.) The record also shows that Plaintiff's physicians recommended surgery to repair the torn rotator cuff in his right shoulder. (AR 227, 231, 232, 344.) Plaintiff had not yet undergone the surgery at the time of the hearing because he was awaiting approval for an MRI (AR 36-37, 408, 410), but given that it had been prescribed his failure to yet have it was not a valid reason for discounting his credibility. Cf. Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (adverse credibility finding not supported by failure to obtain treatment due to lack of funds). And the ALJ failed to identify any other treatment that was currently recommended or available for Plaintiff's impairments or point to anything in the record to show that any more aggressive treatment than the treatment Plaintiff was already receiving was a standard method for treating the conditions causing the type of physical and mental limitations alleged by Plaintiff. The ALJ cannot fault Plaintiff for failing to pursue nonconservative treatment options if none existed. See Lapeirre-Gutt v. Astrue, 382 F. App'x 662, 664 (9th Cir. 2010). Under these circumstances, Plaintiff's treatment history was not a clear and convincing reason for the ALJ's adverse credibility finding.
In sum, the ALJ's explanation for the adverse credibility determination was insufficient.
B. Remand for Further Proceedings Is Appropriate
When, as here, an ALJ errs in denying benefits, the Court generally has discretion to remand for further proceedings. See Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). When no useful purpose would be served by further administrative proceedings, however, or when the record has been fully developed, it is appropriate under the "credit-as-true" rule to direct an immediate award of benefits. See id. at 1179 (noting that "the decision of whether to remand for further proceedings turns upon the likely utility of such proceedings"); Garrison v. Colvin, 759 F.3d 995, 1019-20 (9th Cir. 2014).
Under the credit-as-true framework, three circumstances must be present before the Court may remand to the ALJ with instructions to award benefits:
(1) the record has been fully developed and further administrative proceedings would serve no useful purpose;Id. at 1020. When, however, the ALJ's findings are so "insufficient" that the Court cannot determine whether the rejected testimony should be credited as true, the Court has "some flexibility" in applying the credit-as-true rule. Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003); see also Garrison, 759 F.3d at 1020 (noting that Connett established that credit-as-true rule may not be dispositive in all cases).
(2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.
Here, remand for further proceedings is appropriate. It may be that the ALJ had adequate reasons not to find Plaintiff entirely credible and simply failed to express them; her findings are insufficient to enable the Court to tell. Further, on remand, the ALJ will have the opportunity to explain more fully the assessment of the third-party statement provided by Plaintiff's wife and can consider any inconsistency between Plaintiff's RFC and the vocational expert's testimony.
VI. CONCLUSION
Consistent with the foregoing, and under sentence four of 42 U.S.C. § 405(g), IT IS ORDERED that judgment be entered REVERSING the decision of the Commissioner, GRANTING Plaintiff's request for remand, and REMANDING this action for further proceedings consistent with this Memorandum Opinion. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. DATED: March 31, 2016
That sentence provides: "The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." --------
/s/_________
JEAN ROSENBLUTH
U.S. Magistrate Judge