Opinion
For Dawne Ann Ybanez, Plaintiff: Lawrence D Rohlfing, LEAD ATTORNEY, Law Offices of Lawrence D Rohlfing, Santa Fe Springs, CA.
For Carolyn W Colvin, Acting Commissioner of Social Security, Defendant: Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, AUSA - Office of U.S. Attorney, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, LEAD ATTORNEY, Office of the General Counsel for Social Security Adm., San Francisco, CA; Theophous Reagans, SAUSA - U.S. Attorney's Office, San Francisco, CA.
ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS
DAVID T. BRISTOW, UNITED STATES MAGISTRATE JUDGE.
Plaintiff filed a Complaint on February 13, 2014, seeking review of the Commissioner's denial of her application for Disability Insurance Benefits. In accordance with the Magistrate Judge's Case Management Order, the parties filed a Joint Stipulation (" Jt. Stip.") on October 30, 2014. Thus, this matter now is ready for decision.
As the parties were advised in the Case Management Order, the decision in this case is being made on the basis of the pleadings, the Administrative Record (" AR"), and the Joint Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g).
DISPUTED ISSUE
1. Whether the Administrative Law Judge (" ALJ") properly evaluated plaintiff's credibility. (Jt. Stip. 5-17.)
DISCUSSION
I. Reversal is warranted based on the ALJ's assessment of plaintiff's credibility .
Plaintiff contends that the " ALJ failed to articulate legally sufficient reasons for rejecting the testimony of [plaintiff]." (Jt. Stip. 10.)
Where the claimant has produced objective medical evidence of an impairment or impairments which could reasonably be expected to produce some degree of pain and/or other symptoms, and the record is devoid of any affirmative evidence of malingering, the ALJ may reject the claimant's testimony regarding the severity of the claimant's pain and/or other symptoms only if the ALJ makes specific findings stating clear and convincing reasons for doing so. See Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc); see also Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). The ALJ " must identify what testimony is not credible and what evidence undermines the claimant's complaints." Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (as amended); see also Dodrill, 12 F.3d at 918. Further, a credibility finding must be " sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit [the] claimant's testimony." Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). Factors that may be considered include: (1) The claimant's reputation for truthfulness; (2) inconsistencies in testimony or between testimony and conduct; (3) the claimant's daily activities; (4) an unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment; and (5) testimony from physicians concerning the nature, severity, and effect of the symptoms of which the claimant complains. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); see also Thomas, 278 F.3d at 958-59.
At an administrative hearing, held on September 10, 2012, plaintiff testified that she suffers from " [s]evere pain going all the way up the whole neck, going up [her] head, all the way down [her] shoulders" subsequent to being injured in a car accident in 2009. (AR 66, AR 72; see AR 48, AR 73, AR 331; see also AR 854 (treatment note, dated August 3, 2011, indicating plaintiff's " recent MRI shows severe narrowing of the left C4-5 neural foramen from facet joint hypertrophy").) She stated that when she " wake[s] up in the mornings [her] hands and arms are usually numb and tingly." (AR 72.) Plaintiff reported that in a " typical day, " she " take[s her] daughter to school, " which is " only two blocks away, " but she " do[es not] do much during the day" besides sit and watch television " because [she is] constantly getting up and moving, changing positions, and trying to get comfortable[.]" (AR 74-75.) Plaintiff indicated that she is able to drive " short distances" but had difficulty driving to the hearing which took her " about an hour." (Id.) Plaintiff further testified that she is " not currently under any doctor's care . . . because [she does not] have medical insurance any more." (AR 78.) Plaintiff stated that her physician told her he would not " recommend[] . . . surgery because [she has] five bulging discs in [her] neck and if they fused them together [she would] lose complete mobility." (AR 79.)
In his decision, the ALJ rejected plaintiff's credibility based on the following four grounds: Plaintiff " admitted that she was able to complete light household chores, help prepare meals, grocery shop, and drive"; plaintiff's " treatment has been essentially routine and conservative in nature"; " plaintiff " has not received treatment for her alleged impairments since October 2011" and " there is no evidence that [plaintiff] could not have obtained low cost or no cost medical care as necessary if she were truly impoverished to the extent alleged"; and " although [plaintiff] experiences some degree of pain in her upper extremities, the pain has apparently not altered her use of her muscles to the extent that it has resulted in diffuse muscular atrophy." (AR 19-20.) These were not clear and convincing reasons to reject plaintiff's subjective symptom testimony.
First, the ALJ improperly rejected plaintiff's credibility based on her daily activities. For example, the ALJ found that plaintiff is " able to complete light household chores, help prepare simple meals, grocery shop, and drive." (AR 19.) However, plaintiff explained that she only drives her daughter " two blocks" to school and driving for one hour " puts pain and pressure on the shoulders" and the pain " shoots up the neck." (AR 74-75.) Moreover, she reported her daughter does " most of the housework, " but she is capable of doing laundry with her family's assistance. (AR 79-80.) In plaintiff's Adult Function Report, she indicated that she is able to help her husband prepare meals by heating up frozen vegetables or pouring " bagged ready made salad in a bowl." (AR 281, AR 283.) Thus, plaintiff's activities do not support the ALJ's rejection of her subjective complaints or the ALJ's conclusion that she is able to sustain gainful employment, as none of plaintiff's activities translate into an ability to do activities that are transferable to a work setting. See Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) (ALJ errs in failing to make a finding to the effect that ability to perform daily activities translated into the ability to perform appropriate work); see also Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (" This court has repeatedly asserted that the mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from her credibility as to her overall disability.").
Second, the Court declines to find the ALJ's reasoning that plaintiff's " treatment has been essentially routine and conservative in nature" to be clear and convincing. (AR 20.) A " conservative" course of treatment may sometimes properly discredit a claimant's allegations of disabling symptoms. See Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (as amended) (ALJ properly considered, as part of credibility evaluation, treating physician's failure to prescribe, and claimant's failure to request, medical treatment commensurate with the " supposedly excruciating" pain alleged, and the " minimal, conservative treatment") (citation omitted); Fair, 885 F.2d at 604 (ALJ permissibly considered discrepancies between the claimant's allegations of " persistent and increasingly severe pain" and the nature and extent of treatment obtained). In the present case, however, it is uncertain whether the ALJ accurately characterized plaintiff's treatment as " essentially routine and conservative in nature." See Brown v. Colvin, 2014 WL 5330722, at *3 (C.D. Cal. Oct. 20, 2014) (finding ALJ improperly discredited the plaintiff's allegations of disabling symptoms where he mischaracterized the plaintiff's treatment as conservative and routine). At the hearing, plaintiff testified that she was using a heating pad and a traction device, and taking Naproxen to relieve pain. (AR 77-78.) Nonetheless, treatment records reveal plaintiff is allergic to narcotic pain medications, such as Vicodin, which might be characterized as a strong pain medication. (See, e.g., AR 501-02 (treatment note, dated October 6, 2010, indicating plaintiff's allergies include codeine and opiate derivatives, Vicodin, Morphine Sulfate, Demerol)); Aguilar v. Colvin, 2014 WL 3557308, at *8 (C.D. Cal. July 18, 2014) (" there is evidence in the record that Plaintiff has been prescribed narcotic pain medications, such as Vicodin. . . . It would be difficult to fault Plaintiff for overly conservative treatment when he has been prescribed strong narcotic pain medications"). Further, when her physician attempted to provide her with stronger medication by administering a cervical epidural steroid injection to help alleviate her neck and shoulder pain, plaintiff " had [a] complication of a severe vasovagal reaction with [her heart rate] dipping down to [the] 20's" and her physician had to " abort the procedure." (AR 525.) Treatment notes also indicate that plaintiff's doctors advised her that " surgery would be a last resort if all else fails, " and at the administrative hearing, plaintiff clarified that her physician told her " he wouldn't have recommended . . . surgery because [she has] five bulging discs in [her] neck and if they fused them together [she would] lose complete mobility." (AR 79, AR 486 (treatment note, dated August 30, 2010, indicating plaintiff was " advised surgery would be a last resort if all else fails"); see also AR 419 (treating orthopedic surgeon evaluation, dated February 8, 2011, indicating " [s]urgery is an available option on the neck; however, it should be considered carefully since it is a serious operation").) As such, the Court is not persuaded that plaintiff's subjective symptom testimony can be discredited based on her treating physician's failure to prescribe more aggressive treatment as plaintiff's lengthy medical record (of over one thousand pages) seems to suggest that no more effective options exist. (See AR 325-1503.)
Naproxen is a " nonsteroidal anti-inflammatory drug . . . used to treat pain." www.drugs.com.
Vasovagal is defined as " [r]elating to the action of the vagus nerve upon the blood vessels." Stedman's Medical Dictionary, 970350 (27th Ed. 2000).
Third, the ALJ pointed out that plaintiff " has not received treatment for her alleged impairments since October 2011" and " [a]lthough [plaintiff] alleged an inability to afford medical treatment due to a lack of health insurance, there is no evidence that [plaintiff] could not have obtained low cost or no cost medical care as necessary." (AR 20.) Again, the ALJ's reasoning mischaracterizes the evidentiary record. At the administrative hearing, plaintiff testified that she was " not currently getting physical therapy" because she did not " have medical insurance any more." (AR 78.) While plaintiff indicated that she was not " currently under any doctor's care for [her] injuries, " she also testified that she was taking pain medication, using a heating pad and a traction device, and treatment notes from 2011 reported that none of the available treatment options have " helped significantly." (AR 77-78, AR 854 (treatment note, dated August 3, 2011, indicating plaintiff " has treated her pain in the past with PO dilaudid, cervical epidural steroid injections, physical therapy, none of which have helped significantly").) More importantly, as previously mentioned, the record does not contain any medical evidence that there were any remaining effective treatment options that plaintiff failed to undergo. See also AR 856-57 (treatment note, dated August 3, 2011, indicating that treating physician " informed the patient that surgery would only potentially address her left shoulder complaints, and her other symptoms of headaches, neck pain, and bilateral upper extremities pain would likely not improve after surgery, " and recommended a more " cautious approach").) Thus, the ALJ improperly discredited plaintiff's statements based on a failure to seek treatment.
Finally, the ALJ justified discounting plaintiff's allegations of pain based on a lack of " diffuse muscular atrophy." (AR 20.) However, this finding is based on a presumption that has no basis in the medical record. There was no medical evidence in the record that suggests that high inactivity levels necessarily lead to muscle atrophy. See Lapeirre-Gutt v. Astrue, 382 Fed.Appx. 662, 665 (9th Cir. 2010) (holding ALJ erred in his adverse credibility determination where he " noted that [the plaintiff's] lack of muscle atrophy was inconsistent with her allegations of inactivity"). Accordingly, the ALJ's finding is not based on substantial evidence.
Thus, Disputed Issue One warrants reversal of the Commissioner's decision.
CONCLUSION AND ORDER
The law is well established that the decision whether to remand for further proceedings or simply to award benefits is within the discretion of the Court. See, e.g., Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) (as amended); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). Remand is warranted where additional administrative proceedings could remedy defects in the decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984); Lewin, 654 F.2d at 635. Remand for the payment of benefits is appropriate where no useful purpose would be served by further administrative proceedings, Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); where the record has been fully developed, Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where remand would unnecessarily delay the receipt of benefits, Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985) (per curiam) (as amended).
This is not an instance where no useful purpose would be served by further administrative proceedings. Rather, this is an instance where additional administrative proceedings could remedy the defects in the ALJ's decision.
Pursuant to sentence four of 42 U.S.C. § 405(g), IT THEREFORE IS ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedings.
JUDGMENT
In accordance with the Order Reversing Decision of Commissioner and Remanding for Further Administrative Proceedings, filed herewith, IT IS HEREBY ADJUDGED that the decision of the Commissioner of Social Security is reversed and this matter is remanded for further administrative proceedings.