Opinion
CASE NO. CV 18-0078 AS
11-21-2018
BOYCE L. WILLIAMS JR., Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER OF REMAND
For the reasons discussed below, IT IS HEREBY ORDERED that, pursuant to Sentence Four of 42 U.S.C. § 405(g), this matter is remanded for further administrative action consistent with this Opinion.
PROCEEDINGS
On January 4, 2018, Plaintiff filed a Complaint seeking review of the denial of his applications for Disability Insurance Benefits and Supplemental Security Income. (Dkt. No. 1). The parties have consented to proceed before the undersigned United States Magistrate Judge. (Dkt. Nos. 11-13). On May 31, 2018, Defendant filed an Answer along with the Administrative Record ("AR"). (Dkt. Nos. 15-16). The parties filed a Joint Stipulation ("Joint Stip.") on October 31, 2018, setting forth their respective positions regarding Plaintiff's claim. (Dkt. No. 19).
BACKGROUND AND SUMMARY OF ADMINISTRATIVE RECORD
On September 4, 2014, Plaintiff filed applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"), pursuant to Titles II and XVI of the Social Security Act, alleging a disability onset date of February 13, 2014. (AR 86-87, 200-12). The Commissioner denied Plaintiff's applications initially and on reconsideration. (AR 63-111). On March 21, 2017, Plaintiff, represented by counsel, testified at a hearing before Administrative Law Judge David G. Marcus (the "ALJ"). (AR 31-62). The ALJ also heard testimony from Hugh R. Savage, M.D., an impartial medical expert ("ME"), and Sandra Trost, an impartial vocational expert ("VE"). (AR 45-61).
On May 5, 2017, the ALJ denied Plaintiff's request for benefits. (AR 15-24). Applying the five-step sequential process, the ALJ found at step one that Plaintiff has not engaged in substantial gainful activity since February 13, 2014, the alleged onset date. (AR 17). At step two, the ALJ found that Plaintiff's history of atrial fibrillation, obesity, history of cerebrovascular accident with mild residual left-sided weakness, history of mild congestive heart failure, normalized with medications, history of arrhythmias, status post dual chamber single lead automatic implantable cardioverter defibrillator implant, and hypertrophic cardiomyopathy are severe impairments. (AR 17). At step three, the ALJ determined that Plaintiff does not have an impairment or combination of impairments that meet or medically equal the severity of any of the listings enumerated in the regulations. (AR 18).
The ALJ then assessed Plaintiff's residual functional capacity ("RFC") and concluded that he can perform a range of light work, as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except:
The RFC is what a claimant can still do despite existing exertional and nonexertional limitations. See 20 C.F.R. § 404.1545(a)(1).
"Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time." 20 C.F.R. §§ 404.1567(b), 416.967(b).
[Plaintiff] can stand and walk for six hours of an eight-hour day, never at a rapid pace. He must have the opportunity to sit for ten minutes per hour as
needed. He can sit for six hours of an eight-hour day. He can occasionally operate foot controls. He can occasionally climb ramps and stairs. He is precluded from climbing ladders, ropes and scaffolds. He can frequently balance and stoop. He can occasionally crouch and crawl. He is limited to occasional exposure to heights or moving mechanical parts. He is limited to occasional exposure to conditions of high humidity.(AR 18). At step four, the ALJ found that Plaintiff is unable to perform any past relevant work. (AR 21-22). Based on Plaintiff's RFC, age, education, work experience, and the VE's testimony, the ALJ determined at step five that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, including cashier and furniture retail clerk. (AR 22-23). Accordingly, the ALJ found that Plaintiff was not under a disability as defined in the Social Security Act from February 13, 2014, through the date of the decision. (AR 23-24).
The VE also testified that Plaintiff can perform a full range of sedentary work. (AR 23, 59).
The Appeals Council denied Plaintiff's request for review on November 24, 2017. (AR 1-6). Plaintiff now seeks judicial review of the ALJ's decision, which stands as the final decision of the Commissioner. 42 U.S.C. §§ 405(g), 1383(c).
STANDARD OF REVIEW
This Court reviews the Commissioner's decision to determine if: (1) the Commissioner's findings are supported by substantial evidence; and (2) the Commissioner used proper legal standards. 42 U.S.C § 405(g); see Carmickle v. Comm'r, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). "Substantial evidence is more than a scintilla, but less than a preponderance." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998) (citing Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). It is relevant evidence "which a reasonable person might accept as adequate to support a conclusion." Hoopai, 499 F. 3d at 1074; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 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) (citation omitted); see Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (inferences "reasonably drawn from the record" can constitute substantial evidence).
This Court "may not affirm [the Commissioner's] decision simply by isolating a specific quantum of support evidence, but must also consider evidence that detracts from [the Commissioner's] conclusion." Ray v. Bowen, 813 F.2d 914, 915 (9th Cir. 1987) (citation and internal quotation marks omitted). However, the Court cannot disturb findings supported by substantial evidence, even though there may exist other evidence supporting Plaintiff's claim. See Torske v. Richardson, 484 F.2d 59, 60 (9th Cir. 1973). "If the evidence can reasonably support either affirming or reversing the [Commissioner's] conclusion, [a] court may not substitute its judgment for that of the [Commissioner]." Reddick, 157 F.3d 715, 720-21 (9th Cir. 1998) (citation omitted).
DISCUSSION
Plaintiff's sole claim is that the ALJ erred in rejecting his subjective symptom statements. (Joint Stip. at 4-14). After consideration of the parties' arguments and the record as a whole, the Court finds that Plaintiff's claim of error warrants remand for further consideration. A. The ALJ Failed To Provide Specific , Clear, and Convincing Reasons for Rejecting Plaintiff's Subjective Symptom Testimony
Plaintiff asserts that in evaluating his subjective statements, the ALJ failed to articulate legally sufficient, clear and convincing reasons rejecting his testimony. (Joint Stip. at 8, 13).
Plaintiff alleges disability due to his heart condition, which limits his ability to lift, walk, and stand. (AR 235, 259). He stopped working after he started experiencing shortness of breath and blacked out. (AR 37-38). Plaintiff testified that he uses a cane to ambulate. (AR 40). His symptoms worsened after a February 2015 stroke. (AR 47). When moving around Plaintiff needs to frequently stop and rest to catch his breath. (AR 40-41). He gets easily winded when climbing stairs. (AR 40-41). On his doctor's advice, he makes daily walks around the local mall. (AR 41-42). He is able to walk for about an hour before needing to stop and rest for ten to fifteen minutes. (AR 41). After his daily walks, he must elevate his legs for two to three hours because his feet swell. (AR 42-43). Plaintiff's medications cause drowsiness. (AR 42).
When assessing a claimant's credibility regarding subjective pain or intensity of symptoms, the ALJ must engage in a two-step analysis. Trevizo v. Berryhill, 874 F.3d 664, 678 (9th Cir. 2017). First, the ALJ must determine if there is medical evidence of an impairment that could reasonably produce the symptoms alleged. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). "In this analysis, the claimant is not required to show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom." Id. (emphasis in original) (citation omitted). "Nor must a claimant produce objective medical evidence of the pain or fatigue itself, or the severity thereof." Id. (citation omitted).
If the claimant satisfies this first step, and there is no evidence of malingering, the ALJ must provide specific, clear and convincing reasons for rejecting the claimant's testimony about the symptom severity. Trevizo, 874 F.3d at 678 (citation omitted); see also Smolen, 80 F.3d at 1284 ("[T]he ALJ may reject the claimant's testimony regarding the severity of her symptoms only if he makes specific findings stating clear and convincing reasons for doing so."); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) ("[U]nless an ALJ makes a finding of malingering based on affirmative evidence thereof, he or she may only find an applicant not credible by making specific findings as to credibility and stating clear and convincing reasons for each."). "This is not an easy requirement to meet: The clear and convincing standard is the most demanding required in Social Security cases." Garrison, 759 F.3d at 1015 (citation omitted).
In discrediting the claimant's subjective symptom testimony, the ALJ may consider the following:
(1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, 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; and (3) the claimant's daily activities.Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation omitted). Inconsistencies between a claimant's testimony and conduct, or internal contradictions in the claimant's testimony, also may be relevant. Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). In addition, the ALJ may consider the observations of treating and examining physicians regarding, among other matters, the functional restrictions caused by the claimant's symptoms. Smolen, 80 F.3d at 1284; accord Burrell, 775 F.3d at 1137. However, it is improper for an ALJ to reject subjective testimony based "solely" on its inconsistencies with the objective medical evidence presented. Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (citation omitted).
Further, the ALJ must make a credibility determination with findings that are "sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony." Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citation omitted); see Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) ("A finding that a claimant's testimony is not credible must be sufficiently specific to allow a reviewing court to conclude the adjudicator rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit a claimant's testimony regarding pain.") (citation omitted). Although an ALJ's interpretation of a claimant's testimony may not be the only reasonable one, if it 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).
The ALJ found that Plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms," and the ALJ did not make a finding of malingering. (AR 19). Nevertheless, the ALJ concluded that Plaintiff's subjective symptom statements "are not entirely consistent with the medical evidence and other evidence in the record." (AR 19). After careful consideration, the Court finds that the ALJ's conclusions are contrary to law and not supported by clear and convincing evidence. See Garrison, 759 F.3d at 1015 (The clear and convincing standard is "the most demanding required in Social Security cases" and "is not an easy requirement to meet.") (citation omitted).
First, the ALJ's decision is not "sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony." Tommasetti, 533 F.3d at 1039 (citation omitted). It is not at all clear which testimony the ALJ found credible and which he found not credible and why. See Brown-Hunter, 806 F.3d at 493 ("The ALJ . . . failed to identify specifically which of Brown-Hunter's statements she found not credible and why."); Knape v. Berryhill, 734 F. App'x 500, 501 (9th Cir. 2018)("The ALJ failed to identify the parts of Knape's mental health symptom testimony he found not credible and failed to provide any links to the record."); Fritz v. Berryhill, 685 F. App'x 585, 586 (9th Cir. 2017) ("[T]he ALJ did not identify what testimony was not credible and what evidence undermined Fritz's complaints."). Instead, the ALJ cited portions of Plaintiff's testimony and then went on to summarize the medical evidence supporting his RFC determination. (AR 19-20). "This is not the sort of explanation or the kind of 'specific reasons' [this Court] must have in order to review the ALJ's decision meaningfully, so that [the Court] may ensure that the claimant's testimony was not arbitrarily discredited." Brown-Hunter, 806 F.3d at 494. Critically, the ALJ did not include a leg-elevation requirement in the RFC, despite acknowledging that Plaintiff testified that he "elevates his feet for an hour or so" after his daily walk. (AR 18, 20).
Second, the ALJ erroneously concluded that "[Plaintiff's] testimony revealed that his heart condition is not disabling." (AR 20). The ALJ found that Plaintiff's ability to walk every morning at the mall for "60 to 90 minutes, with 10 to 15 minute breaks along the way," belies "[his] allegations of having a disabling cardiac impairment." (AR 20). An ALJ properly may consider the claimant's daily activities in weighing credibility. Tommasetti, 533 F.3d at 1039. If a claimant's level of activity is inconsistent with the claimant's asserted limitations, it has a bearing on credibility. Garrison, 759 F.3d at 1016. Here, the ALJ believed that he "adequately accounted for [the limitations caused by Plaintiff's heart condition] by limiting [him] to a range of light exertional work with additional environmental and postural limitations, including a sit/stand option that is consistent with [Plaintiff's] hearing testimony." (AR 20). However, despite acknowledging that after his daily walks, "[Plaintiff] returns home and elevates his feet for an hour or so" (AR 20), the RFC does not include any leg-elevating requirements. Thus, the ALJ's conclusion that Plaintiff's testimony belies his disability claim is not supported by substantial evidence.
The VE was not asked to opine whether an individual who must elevate his legs for two to three hours daily would be able to perform either the cashier or furniture retail clerk positions. --------
The Commissioner contends that Plaintiff's subjective statements were internally inconsistent. (Joint Stip. at 16). The Commissioner notes that while Plaintiff told the Agency in December 2014 he does not leave his house and cannot walk more than 100 feet, he testified that he walks every morning for 60-90 minutes before taking a 10-15 minute break. (Id.; see AR 41, 254). However, the Court is "constrained to review the reasons the ALJ asserts." Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (citing Sec. & Exch. Comm'n v. Chenery Corp., 332 U.S. 194, 196 (1947)). The Court "review[s] 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." Garrison, 759 F.3d at 1010. Here, the ALJ did not base his rejection of Plaintiff's testimony on this alleged internal inconsistency. (AR 19-20). In any event, Plaintiff acknowledged that his symptoms improved in 2015 as evinced by an improved ejection fraction rate. (AR 49-51, 53). Further, the improved ejection fraction rate does not undermine Plaintiff's testimony that he has to elevate his legs for two to three hours daily. (AR 50) (Plaintiff testifying in March 2017 that he still gets swelling unless he stays off his feet a lot).
Finally, the ALJ's reliance on objective medical evidence is insufficient to undermine Plaintiff's subjective symptom testimony. The ALJ concluded that "[Plaintiff's] recent medical records show that his condition has improved in the past few years on his current treatment plan." (AR 19). While inconsistencies with the objective medical evidence can be a factor that the ALJ may consider when evaluating a claimant's credibility, it cannot be the sole ground for rejecting a claimant's subjective testimony. Bray, 554 F.3d at 1227; Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); Rollins, 261 F.3d at 857. Here, the only other factor noted by the ALJ was the supposed activities of daily living, which was not supported by substantial evidence, as discussed above. In any event, the objective evidence cited by the ALJ does not dispute all of Plaintiff's subjective statements. For example, as already noted, the ALJ does not cite any evidence to dispute Plaintiff's testimony that he must elevate his legs for two to three hours daily. Indeed, whether Plaintiff "is able to ambulate with a steady gait" and can "walk[ ] without discomfort" (AR 19) does not undermine Plaintiff's testimony that he must elevate his legs to relieve the swelling in his feet after walking and standing. Unless the ALJ properly rejects these subjective symptoms, the ALJ's conclusion that Plaintiff can sustain fulltime employment as a cashier or furniture retail clerk is not supported by clear and convincing evidence.
In sum, the ALJ failed to provide clear and convincing reasons, supported by substantial evidence, for rejecting Plaintiff's subjective symptoms. The matter is remanded for further proceedings. On remand, the ALJ shall reevaluate Plaintiff's symptoms in accordance with SSR 16-3p, taking into account the full range of medical evidence. B. Remand Is Warranted
The decision whether to remand for further proceedings or order an immediate award of benefits is within the district court's discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). Where no useful purpose would be served by further administrative proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Id. at 1179 ("[T]he decision of whether to remand for further proceedings turns upon the likely utility of such proceedings."). However, where, as here, the circumstances of the case suggest that further administrative review could remedy the Commissioner's errors, remand is appropriate. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); Harman, 211 F.3d at 1179-81; see also Garrison, 759 F.3d at 1020 (cautioning that "the credit-as-true rule may not be dispositive of the remand question in all cases"); cf. Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1105 (9th Cir. 2014) ("[T]he record raises crucial questions as to the extent of Treichler's impairment given inconsistencies between his testimony and the medical evidence in the record. These are exactly the sort of issues that should be remanded to the agency for further proceedings.").
Since the ALJ failed to properly evaluate Plaintiff's subjective symptom testimony, remand is warranted. However, if the ALJ properly determines which of Plaintiff's statements he found not credible and why, the record does not affirmatively establish that Plaintiff is disabled. Remand is therefore appropriate.
ORDER
For the foregoing reasons, the decision of the Commissioner is reversed, and the matter is remanded for further proceedings pursuant to Sentence 4 of 42 U.S.C. § 405(g).
LET JUDGMENT BE ENTERED ACCORDINGLY. DATED: November 21, 2018
/S/_________
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE