Opinion
Case No. ED CV 15-1349-SP
09-29-2016
MICHAEL EDWARD MACHUNIS, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
I.
INTRODUCTION
On July 7, 2015, plaintiff Michael Machunis filed a complaint against defendant, the Commissioner of the Social Security Administration ("Commissioner"), seeking review of a denial of a period of disability and disability insurance benefits ("DIB"). Both plaintiff and defendant have consented to proceed for all purposes before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court deems the matter suitable for adjudication without oral argument.
Plaintiff presents one issues for decision, whether the Administrative Law Judge ("ALJ") properly considered plaintiff's credibility. Memorandum in Support of Plaintiff's Complaint ("P. Mem.") at 2-9; Memorandum in Support of Defendant's Answer ("D. Mem.") at 2-7.
Having carefully studied the parties' papers, the Administrative Record ("AR"), and the decision of the ALJ, the court concludes that, as detailed herein, the ALJ failed to provide sufficient clear and convincing reasons for discounting plaintiff's credibility. Consequently, the court remands this matter to the Commissioner in accordance with the principles and instructions enunciated in this Memorandum Opinion and Order.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, who was fifty years old on his alleged disability onset date, completed high school. AR at 35, 54, 155. His past relevant work was as a diesel mechanic. Id. at 46, 155, 161, 209.
On May 29, 2012 plaintiff filed an application for a period of disability and DIB, alleging an onset date of October 5, 2011, due to spinal degenerative disc disease, artificial cervical disc implant between C5-C6, and thoracic problems. Id. at 54, 65, 133-36, 154. The Commissioner denied plaintiff's application initially and upon reconsideration, after which plaintiff filed a request for a hearing. Id. at 54-91.
On December 11, 2013, plaintiff, represented by an attorney, appeared and testified at a hearing before the ALJ. Id. at 32-45, 51. The ALJ also heard testimony from a vocational expert. Id. at 45-53. On January 2, 2014, the ALJ denied plaintiff's claim for benefits. Id. at 15-25.
Applying the well-known five-step sequential evaluation process, the ALJ found, at step one, that plaintiff had not engaged in substantial gainful activity since October 5, 2011, the alleged onset date. Id. at 17.
At step two, the ALJ found plaintiff suffered from the following severe impairments: degenerative disc disease of the thoracic spine, lumbar spine, and cervical spine, post laminectomy syndrome, status-post surgery in September 2009; obesity; bilateral sensorineural hearing loss with binaural amplification; and radiculopathy of the upper extremities. Id.
At step three, the ALJ found plaintiff's impairments, whether individually or in combination, did not meet or medically equal one of the listed impairments set forth in 20 C.F.R. part 404, Subpart P, Appendix 1 ("Listing"). Id. at 18.
The ALJ then assessed plaintiff's residual functional capacity ("RFC"), and determined plaintiff had the RFC to perform light work, with the limitations that he could: stand or walk for six hours out of an eight-hour workday, but for no more than 10-15 minutes at a time; sit for six hours out of an eight-hour workday, but with brief position changes after approximately 30-45 minutes; and occasionally perform all postural activities except no climbing ladders, ropes, or scaffolds. The ALJ additionally determined plaintiff should perform no work at unprotected heights, around moving machinery, or other hazzards; perform no jobs requiring hypervigilance or intense concentration on a particular task; avoid concentrated exposure to vibration, walking on uneven terrain, and extreme cold; perform no repetitive or constant movement of the head or neck from side to side or up and down; avoid concentrated exposure to loud noises; and perform no repetitive or constant fine or gross manipulation bilaterally. Id.
Residual functional capacity is what a claimant can do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155-56 n.5-7 (9th Cir. 1989). "Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant's residual functional capacity." Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007).
The ALJ found, at step four, that plaintiff was incapable of performing his past relevant work as a diesel mechanic. Id. at 23.
At step five, the ALJ found there were jobs that existed in significant numbers in the national economy that plaintiff could perform, including bench assembler, cashier II, and toy assembler. Id. at 24-25. Consequently, the ALJ concluded that, for the relevant period, plaintiff did not suffer from a disability as defined by the Social Security Act. Id. at 25.
Plaintiff filed a timely request for review of the ALJ's decision, which was denied by the Appeals Council. Id. at 1-3, 11. The ALJ's decision stands as the final decision of the Commissioner.
III.
STANDARD OF REVIEW
This court is empowered to review decisions by the Commissioner to deny benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security Administration must be upheld if they are free of legal error and supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) (as amended). But if the court determines that the ALJ's findings are based on legal error or are not supported by substantial evidence in the record, the court may reject the findings and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001).
"Substantial evidence is more than a mere scintilla, but less than a preponderance." Aukland, 257 F.3d at 1035. Substantial evidence is such "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d at 459. To determine whether substantial evidence supports the ALJ's 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 ALJ's conclusion." Mayes, 276 F.3d at 459. The ALJ's decision "'cannot be affirmed simply by isolating a specific quantum of supporting evidence.'" Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the evidence can reasonably support either affirming or reversing the ALJ's decision, the reviewing court "'may not substitute its judgment for that of the ALJ.'" Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)).
IV.
DISCUSSION
Plaintiff contends the ALJ failed to make a proper credibility determination. P. Mem. at 2-9. Specifically, plaintiff contends the ALJ failed to provide clear and convincing reasons for discounting plaintiff's credibility.
An ALJ must make specific credibility findings, supported by the record. Social Security Ruling ("SSR") 96-7p. To determine whether testimony concerning symptoms is credible, the ALJ engages in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, the ALJ must determine whether a claimant produced objective medical evidence of an underlying impairment "'which could reasonably be expected to produce the pain or other symptoms alleged.'" Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). Second, if there is no evidence of malingering, an "ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (citation omitted); accord Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014).
"The Commissioner issues Social Security Rulings to clarify the Act's implementing regulations and the agency's policies. SSRs are binding on all components of the SSA. SSRs do not have the force of law. However, because they represent the Commissioner's interpretation of the agency's regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations." Holohan v. Massanari, 246 F.3d 1195, 1203 n.1 (9th Cir. 2001) (internal citations omitted). --------
"[A]n ALJ does not provide specific, clear, and convincing reasons for rejecting a claimant's testimony by simply reciting the medical evidence in support of his or her residual functional capacity determination." Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015). To permit a meaningful review of the ALJ's credibility determination, the ALJ must "specify which testimony [he] finds not credible, and then provide clear and convincing reasons, supported by evidence in the record, to support that credibility determination." Id. The ALJ may consider several factors in weighing a claimant's credibility, including: ordinary techniques of credibility evaluation such as a claimant's reputation for lying; the failure to seek treatment or follow a prescribed course of treatment; and a claimant's daily activities. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Bunnell, 947 F.2d at 346-47. The ALJ may additionally consider "inconsistencies either in [claimant's] testimony or between his testimony and his conduct" and "testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which he complains." Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).
At the first step, the ALJ found plaintiff's medically determinable impairments could reasonably be expected to cause the symptoms alleged. AR at 20. At the second step, because he did not find any evidence of malingering, the ALJ was required to provide clear and convincing reasons for finding plaintiff less credible. Here, the ALJ discounted plaintiff's credibility because: (1) "treatment and medication have been generally successful in controlling [his] symptoms"; (2) he "attempted to minimize his daily activities . . . which indicates an attempt by [plaintiff] to exaggerate the severity of his symptoms"; (3) plaintiff received only "routine and conservative treatment since the alleged onset date, and the "lack of more aggressive treatment" indicates limitations less severe than those alleged; and (4) plaintiff's "allegations are greater than expected in light of the objective evidence of record." Id. at 20; see id. at 19-23.
As an initial matter, contrary to plaintiff's contention (P. Mem. at 5), the ALJ specified those portions of plaintiff's testimony that he found lacking in credibility:
The claimant alleged that he was unable to tolerate the pain. He indicates that his daily pain level even with medication is a level 7-9 out of 10. . . . [¶] . . . The claimant alleged that he cannot sit longer than 30-45 minutes, he cannot walk longer than 30 minutes, and he can lift up to 25 pounds but with pain. He indicated that he can kneel but cannot stoop over and has a hard time reaching for things. The claimant testified that he has problems with his hands and arms trying to perform jobs because of neck and shoulder pain. The claimant alleged that reaching and bending cause severe muscle spasms and severe pain in his back and neck. He reported pain with turning to the left or right. The claimant testified that his pain interferes with focusing and concentrating. [¶] . . . [T]he claimant reported that he suffers from unusual fatigue which requires him to nap once a day for 1-3 hours.Id. at 19.
Adequate Control of Symptoms
The ALJ's first ground for discounting plaintiff's credibility was that treatment and medications were successfully controlling his symptoms. Id. at 20. Generally in evaluating a claimant's claimed symptoms, an ALJ may find a plaintiff less credible when his or her symptoms can be controlled by medication. See 20 C.F.R. §§ 404.1529(c)(3)(iv), 416.929(c)(3)(iv); see also Warre v. Comm'r, 439 F.3d 1001, 1006 (9th Cir. 2006) ("Impairments that can be controlled effectively with medication are not disabling for purposes of determining eligibility for SSI benefits."); Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) (ALJ's adverse credibility determination properly accounted for physician's report of improvement with medication). Here, the ALJ acknowledged plaintiff "has received various forms of treatment and has been prescribed and has taken appropriate medications for the allegedly disabling symptoms and impairments, which would normally weigh somewhat in the [his] favor." AR at 19-20. Yet the ALJ found plaintiff's pre-onset date back "surgery was generally successful," and the record reveals this and other "treatments and medications have been generally successful in controlling [plaintiff's] symptoms," thus "diminish[ing] the persuasiveness of [plaintiff's] subjective complaints and alleged functional limitations." Id. at 19-20. The evidence, however, does not support the ALJ's conclusion.
The record reflects that plaintiff was neurologically intact with a normal range of motion (id. at 57-59, 342, 350, 368, 416, 457, 533-34, 546-47, 585-86, 725-26), he was not a candidate for additional surgery (id. at 224, 350-51, 360, 438, 534), and he experienced reduced pain on opiates. Id. at 468 ("pain level 3/10 on opiates), 490 (reporting a pain level of 4/10), 543 (reporting his "pain is adequately controlled. Tolerable well"), 634 (reporting a pain level of 5/10), 712 ("Current pain intensity: 6/10"), 721 (pain level today: 5/10 and 6/10 on the Visual/Verbal Analog Scale). But it also indicates plaintiff complained of high pain levels - even after completing an integrated pain management program (id. at 474, 719, 753), undergoing multiple steroid injections (id. at 345, 359, 487, 581, 665, 742), attempting several other recommended treatment methods (id. at 422, 523), and following his opiate prescriptions. Id. at 188, 192, 293, 550, 755; see id. at 359 ("trigger point injections did not seem to help"), 438 (reporting "TENS, acupuncture, physical therapy and a chiropractor haven't helped"), 542 (complaining of a pain level of 7 out of 10 three weeks after injection), 598-99 (recording plaintiff's pain as 7/10 and setting a 3/10 pain level as part of plaintiff's pain management goals), 753 (requesting prednisone from his physician in August 2013, stating he has "been taking every med [he has] and on time [but] pain not letting up" and that "the side effects can't be worse than what [he is] living with").
Plaintiff's physicians consistently prescribed opiates to reduce plaintiff's pain. Id. at 335, 354, 361, 366, 371, 378, 429, 462, 467, 482, 492, 515, 519, 547, 584, 587, 643, 726, 737, 748, 761, 786. Several physicians attested to plaintiff's severe and chronic pain. Id. at 412 (stating in April 2012 that plaintiff has "chronic conditions that require continued pain management"), 792 (opining in April 2013 that plaintiff, who has "limited use of upper body and on multiple pain medications," is "totally medically disabled from his duties as a diesel mechanic"), 793 (stating plaintiff "has chronic pain that renders him disabled"), 794 (certifying to the state Employment Development Department plaintiff remains "off-work" in March 2013 due to chronic pain). Although these physicians' conclusions as to plaintiff's disability status are of little value for the reasons stated by the ALJ (see id. at 22-23), they are still records of plaintiff's chronic pain.
Because the evidence does not support the ALJ's determination that plaintiff's pain symptoms were adequately controlled by his medication, this was not a clear and convincing reason for the ALJ to discount plaintiff's credibility. See, e.g., Lankford v. Astrue, 2013 WL 416221, at *5 (N.D. Cal. Jan. 31, 2013) (the ALJ's finding that a claimant's pain was controlled did not support his credibility assessment because the ALJ failed to recognize that the medication did not resolve the problem and claimant continued to complain of chronic pain).
Minimizing Daily Activities
The ALJ's second ground for an adverse credibility finding was that plaintiff "attempted to minimize his daily activities . . . which indicates an attempt by [plaintiff] to exaggerate the severity of his symptoms." AR at 20. The ALJ found "no evidence" that plaintiff could sit for no longer than 30-45 minutes and could not walk for longer than 30 minutes, and "no evidence" that plaintiff "suffers from unusual fatigue which requires him to nap once a day for 1-3 hours." Id.
Inconsistency between a claimant's daily activities and his alleged symptoms may be a clear and convincing reason for finding him less than fully credible. See Tommasetti, 533 F.3d at 1039. But that is not what the ALJ found here. Instead, the ALJ found plaintiff attempted to minimize his daily activities, presumably in his testimony or in his functional reports and questionnaires. But the problem is, the ALJ fails to identify or explain what daily activities she found plaintiff attempted to minimize; there are not even citations to the record from which the court might infer which daily activities she had in mind. The only daily activity mentioned is plaintiff's reported daily nap, and as to that, there is in fact at least some reference in the record to reported fatigue. See AR at 512.
This is not to say the court found no evidence in the record from which one might conclude plaintiff was exaggerating his symptoms. See id. at 312 (finding of facts by the unemployment benefits Office of Appeal determined plaintiff quit his previous job and was "planning to become a home inspector"), 358 (noting in January 2012 plaintiff exercised 50 minutes 4 days per week at a moderate or strenuous level), 575 (reporting in April 2013 treatment notes that plaintiff had no sitting limitation and walked 60+ minutes seven days per week), 648 (noting plaintiff exercised for sixty minutes at a moderate to strenuous level five days per week in May 2013), 711 (indicating plaintiff "presented alone and on time" to an appointment to which "[h]e drove himself"), 712 (reporting plaintiff was "active and [did] remodel on his home, [drove] himself and [took] care of his activities of daily living"), 721 (recording plaintiff's "symptoms are worsened by physical activity" such as "washing the cars"). But the ALJ did not cite to any such evidence, or give any indication that such evidence played any role in her decision to discount plaintiff's credibility. As such, the court may not rely on such evidence to uphold the ALJ's decision. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) ("We review 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." (citation omitted)).
The ALJ's finding that plaintiff was exaggerating because he attempted to minimize his daily activities was thus neither clear nor convincing.
Conservative Treatment
The ALJ's third ground for an adverse credibility finding was that plaintiff had received only a conservative course of treatment. AR at 20. An ALJ may discount a plaintiff's subjective complaints based on the conservative treatment he received from his physicians. Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) ("evidence of 'conservative treatment' is sufficient to discount a claimant's testimony regarding severity of an impairment") (citation omitted); Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (reasoning "conservative treatment" is indicative of "a lower level of both pain and functional limitation"); SSR 96-7p ("the [plaintiff]'s statements may be less credible if the level or frequency of treatment is inconsistent with the level of complaints").
But here, the record does not indicate plaintiff received only conservative treatment. On the contrary, as recounted at length above, it consistently involved opiate prescriptions and steroid injections. See, e.g., AR at 350, 359, 486-87, 550, 665, 726-27. Such treatment is typically not considered conservative. See See Yang v. Colvin, 2015 WL 248056, at *6 (C.D. Cal. Jan. 20, 2015) (collecting cases finding spinal epidural injections are not conservative); Aguilar v. Colvin, 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."); Christie v. Astrue, 2011 WL 4368189, at *4 (C.D. Cal. Sept. 16, 2011) (refusing to characterize treatment with narcotics, steroid injections, trigger point injections, and epidural injections as conservative); see also Childress v. Colvin, 2014 WL 4629593, at *12 (N.D. Cal. Sept. 16, 2014) ("[i]t is not obvious whether the consistent use of [a prescribed narcotic] is 'conservative' or in conflict with Plaintiff's pain testimony"). The ALJ's characterization of plaintiff's treatment as conservative was therefore not clear and convincing.
Objective Medical Evidence
The ALJ's fourth and final ground for an adverse credibility finding was that plaintiff's "assertions are far in excess of the medical and other evidence of record." AR at 20. Although a lack of objective medical evidence may be one factor used to evaluate credibility, an ALJ "may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain." Bunnell, 947 F.2d at 345; accord Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001).
Here, lack of objective medical evidence was not the only ground given by the ALJ for discounting plaintiff's credibility, but as discussed above, the other reasons given were not clear and convincing. As such, even if the ALJ properly concluded the extent of plaintiff's complaints was not supported by the medical evidence, it would not, standing alone, be sufficient to support the ALJ's decision to discount plaintiff's credibility. The ALJ therefore erred in finding plaintiff to be not entirely credible.
V.
REMAND IS APPROPRIATE
The decision whether to remand for further proceedings or reverse and award benefits is within the discretion of the district court. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). It is appropriate for the court to exercise this discretion to direct an immediate award of benefits where: "(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinions; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand." Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) (setting forth three-part credit-as-true standard for remanding with instructions to calculate and award benefits). But where there are outstanding issues that must be resolved before a determination can be made, or it is not clear from the record that the ALJ would be required to find a plaintiff disabled if all the evidence were properly evaluated, remand for further proceedings is appropriate. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000). In addition, the court must "remand for further proceedings when, even though all conditions of the credit-as-true rule are satisfied, an evaluation of the record as a whole creates serious doubt that a claimant is, in fact, disabled." Garrison, 759 F.3d at 1021.
Here, remand is required because the ALJ erred in failing to properly consider plaintiff's credibility and, due to the lack of clarity regarding at least one of the reasons the ALJ gave, it is not clear from the record that the ALJ would be required to find plaintiff disabled if plaintiff's credibility and statements were properly considered. On remand, the ALJ shall reconsider plaintiff's credibility and testimony. The ALJ shall then reassess plaintiff's RFC and proceed through steps four and five to determine what work, if any, plaintiff is capable of performing.
VI.
RECOMMENDATION
IT IS THEREFORE ORDERED that Judgment shall be entered REVERSING the decision of the Commissioner denying benefits, and REMANDING the matter to the Commissioner for further administrative action consistent with this decision. DATED: September 29, 2016
/s/_________
SHERI PYM
United States Magistrate Judge