Opinion
For Yvonne Nancy Morales, Plaintiff: Vijay Jagdish Patel, 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, Civil Division, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, LEAD ATTORNEY, Office of the General Counsel for Social Security Adm., San Francisco, CA; Dennis J Hanna, LEAD ATTORNEY, SAUSA - Office of the U.S. Attorney, Social Security Administration, San Francisco, CA.
ORDER VACATING DECISION OF ADMINISTRATIVE LAW JUDGE
HON. MICHAEL R. WILNER, UNITED STATES MAGISTRATE JUDGE.
I. SUMMARY OF RULING
Plaintiff Morales challenges the denial of her application for disability insurance benefits. The Administrative Law Judge (ALJ) found that Plaintiff was capable of performing her past work and denied benefits.
On appeal, the Court concludes that the ALJ failed to identify clear and convincing reasons supported by substantial evidence adequate to disbelieve Plaintiff's testimony regarding her symptoms. Further, the Court cannot conclude that the error was harmless. The Court therefore remands the matter to the agency for further consideration.
II. PLAINTIFF'S CONDITIONS AND PROCEEDINGS BELOW
Plaintiff applied for disability benefits based on various physical conditions, including significant back and neck disorders. Following an administrative hearing, the ALJ found that several of Plaintiff's conditions constituted " severe impairments" as that term is used under federal regulations. (AR 24.)
The ALJ concluded that Plaintiff had the residual functional capacity (RFC) to perform " sedentary work" with additional limitations. (AR 27.) In establishing Plaintiff's RFC, the ALJ found that Plaintiff's statements regarding her physical limitations and the severity of her pain symptoms were not believable. (AR 27-28.)
A vocational expert testified at the hearing that an individual with Plaintiff's RFC could perform her past relevant work. (AR 28, 66-67.) The ALJ concluded that Plaintiff was not disabled and denied benefits.
III. DISCUSSION
On appeal to this Court, Plaintiff challenges the adequacy of the ALJ's adverse credibility finding.
A. 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 must be upheld if they are supported by substantial evidence and are free of legal error. Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). " Substantial evidence" is more than a mere scintilla, but less than a preponderance. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). Substantial evidence is " such relevant evidence as a reasonable person might accept as adequate to support a conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007).
A reviewing court must consider " the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence." Hill, 698 F.3d at 1159 (quotation omitted). A court must uphold the ALJ's conclusion even if the evidence in the record " is susceptible to more than one rational interpretation." Ludwig v. Astrue, 681 F.3d 1047, 1052 (9th Cir. 2012) (quotation omitted). Indeed, if the record evidence " can reasonably support either affirming or reversing the decision, " this Court " may not substitute [its] judgment for that of the Commissioner" or the ALJ. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).
Error in a social security determination is subject to harmless error analysis. Ludwig, 681 F.3d at 1054. Reversal " is not automatic, but requires a determination of prejudice." Id. Among other things, a reviewing court must consider " the likelihood that the result would have been different" but for the error, and " the impact of the error on the public perception" of the proceeding. Shinseki v. Sanders, 556 U.S. 396, 411-12, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009). A federal court must conduct this harmless error analysis regardless of the parties' formulations of the claims on appeal: " in each case we look at the record as a whole to determine whether the error alters the outcome of the case." Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (emphasis added).
B. ALJ's Credibility Determination
The ALJ found Plaintiff was not believable in describing her symptoms and limitations. In support of that determination, the ALJ stated that Plaintiff: pursued " conservative treatment only" for her conditions; was " not always compliant" with her treatment recommendations; declined surgery to address her neck condition; and provided " inconsistent statements" regarding her limitations. (AR 27.) The ALJ also found that Plaintiff's reported daily activities and the objective medical record did not support Plaintiff's allegations of disabling pain. (Id.)
Of note, the ALJ noted that Plaintiff's testimonial inconsistencies did not appear to be " the result of a conscious intention to mislead" the agency. (Id.) The written decision expressly stated that, " [i]n light of the claimant's subjective complaints, " the ALJ gave her the " benefit of the doubt" and increased the RFC limitations from those recommended by a consulting examiner. (AR 28, 355.)
1. Relevant Law
Certain disability decisions require an evaluation of a claimant's subjective complaints about the individual's symptoms. An ALJ may not " arbitrarily discredit a claimant's testimony." Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). An ALJ's credibility findings " must be sufficiently specific to allow a reviewing court to conclude the ALJ rejected the claimant's testimony on permissible grounds." Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004). A federal court " may not uphold an agency's decision on a ground not actually relied upon by the agency." Molina, 674 F.3d at 1120.
If an ALJ determines that there is objective medical evidence of an underlying impairment that reasonably could cause the alleged pain or symptoms, the ALJ may disregard the individual's statements regarding the severity of those symptoms if, in the absence of evidence that the claimant is malingering, the ALJ provides " clear and convincing reasons" for rejecting the claimant's testimony. Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012) (quotation omitted). An ALJ may consider a variety of factors in weighing a claimant's believability, including ordinary techniques of credibility evaluation (including testimony by the claimant that " appears less than candid"), " unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment, " and the claimant's daily activities. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quotations omitted); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008).
A claimant's failure to " follow a prescribed course of treatment" may serve as a basis to find a claimant's complaints about symptoms " unjustified or exaggerated." Chaudhry, 688 F.3d at 672 (quotations omitted). Agency regulations require a claimant to follow treatment " prescribed by [a] physician if this treatment can restore" a person's ability to work. 20 C.F.R. § 404.1530(a). However, it is " improper to deny benefits on the basis of declined surgery, when surgery is only a suggested rather than a prescribed course of treatment." Aguirre v. Astrue, No. ED CV 08-1176 PLA, 2009 WL 3346741 at *5 (C.D. Cal. 2009) (emphasis in original and citations omitted); see also Cooley v. Astrue, CV 10-3432 MAN, 2011 WL 2554222 at *4 n.3 (C.D. Cal. 2011) (same); Teter v. Heckler, 775 F.2d 1104, 1107 (10th Cir. 1985) (same).
Evidence that a claimant pursued conservative treatment instead of an aggressive treatment program may also be " sufficient to discount a claimant's testimony regarding severity of an impairment." Parra, 481 F.3d at 751. Numerous judges of this Court have concluded that spinal epidural injections are not a conservative form of treatment. See, e.g., Birkenstein v. Colvin, No. SA CV 12-1525 SP, 2013 WL 3872098 at *9 (C.D. Cal. 2013) (" epidural and trigger point injections may not be considered conservative"); Heyboer v. Colvin, No. ED CV 12-7128 E, 2013 WL 2423169 (C.D. Cal. 2013) (same); Jacobs v. Astrue, No. ED CV 12-834 MRW, 2013 WL 1431623 (C.D. Cal. 2013) (same); Christie v. Astrue, No. CV 10-3448 PJW, 2011 WL 4368189 (C.D. Cal. 2011) (same).
If a claimant " engages in numerous daily activities involving skills that could be transferred to the workplace, the ALJ may discredit the claimant's allegations upon making specific findings relating to those activities." Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). However, a claimant need not " vegetate in a dark room" in order to be eligible for benefits. Molina, 674 F.3d at 1112-13 (citations omitted). The ALJ must make " 'specific findings related to [the daily] activities' and their transferability to conclude that a claimant's daily activities warrant an adverse credibility determination." Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (quoting Burch).
An ALJ may also consider whether there is a lack of objective medical evidence supporting a claimant's allegations. This factor " cannot form the sole basis for discounting" subjective symptom testimony. Burch, 400 F.3d at 681.
2. Discussion
The ALJ provided several reasons for deciding not to believe Plaintiff's testimony about her physical limitations. Although reasonably detailed, the ALJ's stated explanations are neither clear and convincing enough nor supported by substantial evidence sufficient to survive appellate review.
Of significant concern was the ALJ's conclusion that Plaintiff " received conservative treatment only" for her neck and back conditions. (AR 27.) Yet, the testimony and medical records reveal that she had epidural injection treatments for a period of time (AR 56-57, 260, 570, 584), which is not conservative care. Birkenstein, 2013 WL 3872098 at *9. Further, substantial evidence does not support the ALJ's determination that Plaintiff improperly declined " prescribed" neck surgery. At most, Plaintiff reported that she discussed surgery with her physicians or, as she reported to another practitioner, was " told that she needs surgery" by an unidentified physician. (AR 45, 583.) That minimal amount of indirect proof -- as filtered through Plaintiff's lay statements -- is not enough to meet the standard that " a reasonable person might accept as adequate to support a conclusion" that a physician legitimately prescribed surgery for her. Lingenfelter, 504 F.3d at 1035. As such, the ALJ did not have a supportable basis for concluding that Plaintiff improperly failed to follow a prescribed course of medical treatment. Aguirre, 2009 WL 3346741 at *5; 20 C.F.R. § 404.1530(a).
The medical records indicate that Plaintiff had medication injected " IM, " or intramuscularly. However, in response to the ALJ's direct questions, Plaintiff stated that she received epidural injections. The government did not challenge Plaintiff's interpretation of the evidence. (Docket # 18 at 7, 10.) Instead, the government unconvincingly argues that, when the ALJ concluded that Plaintiff received conservative care " only, " this explanation somehow excluded the epidural treatment.
The ALJ also found Plaintiff's pain testimony not credible because there were " indications that the claimant was not always compliant with her treatment recommendations." (AR 27.) The ALJ referenced a single treatment note in which Plaintiff " stated she is not taking as much medication as prescribed." (AR 27, 599.) Here, the ALJ improperly cherry-picked a portion of the medical record instead of considering it in the full context of Plaintiff's treatment history. Hill, 698 F.3d at 1159. According to the lengthy medical reports, Plaintiff repeatedly reported the adverse side effects of her medications to her doctors (AR 441, 476, 583, 587, 600) and received changes to her prescriptions accordingly. Furthermore, she regularly went to follow-up appointments for the purpose of obtaining prescription refills and reported that she was taking her medications. The ALJ's offhand conclusion that Plaintiff was not " compliant" with her medical prescriptions was far from convincing and only meagerly supported by the evidence.
The remainder of the ALJ's credibility analysis was similarly skewed. The ALJ grossly overstated the significance of Plaintiff's nominal daily activities in a manner that the Ninth Circuit frowns on. Molina, 674 F.3d at 1112-13 (claimant " need not vegetate in a dark room" to be eligible for benefits). The ALJ provided no meaningful explanation as to how those activities -- personal care, short walks, attending church -- were inconsistent with her testimony or somehow transferable to the workplace. Orn, 495 F.3d at 639. The ALJ's explanation of the alleged inconsistencies in Plaintiff's reports of her ability to walk or sit was also too unclear to support a finding that she was an untruthful witness.
Finally, the ALJ was not entitled to broadly state that Plaintiff's testimony was inconsistent with the objective medical evidence. At bottom, that conclusion formed " the sole basis for discounting" her subjective symptom testimony, which is unacceptable under Ninth Circuit law. Burch, 400 F.3d at 681. In rejecting Plaintiff's testimony, the ALJ erred by failing to adequately establish a clear and convincing reason supported by substantial evidence.
3. Need for Remand
The Court gave real consideration as to whether or not the ALJ's error was harmless. Molina, 674 F.3d at 1115. In setting Plaintiff's RFC, the ALJ acknowledged that he gave Plaintiff the " benefit of the doubt" by imposing greater work restrictions (sedentary rather than light work) than those recommended by a medical consultant. (AR 28.) The written decision therefore suggests that the ALJ did not wholly disregard Plaintiff's testimony regarding her condition and symptoms.
Even so, though, it is not clear what Plaintiff's RFC would actually be if the ALJ were to credit her testimony -- in full -- as true. As a result, the Court cannot conclusively determine the likelihood that the ALJ would establish a different RFC after considering all of Plaintiff's symptoms limitations. Sanders, 556 U.S. at 411-12. Similarly, if the ALJ did not modify the RFC significantly, the able-to-work conclusion of the vocational expert would remain valid. The Court does not have an adequate basis to conclude that the ALJ's error was harmless.
On the flip side, though, the Court will not remand for the calculation of benefits. The Court is unable to determine that further administrative proceedings would serve " no useful purpose, " as there remain colorable issues regarding the formulation of Plaintiff's RFC and the analysis of her ability to work that may be affected were her testimony to be taken as true. Garrison, 759 F.3d at 1020. As a result, the appropriate remedy here is for the Court to remand the matter to the agency for further proceedings.
IV. CONCLUSION
The ALJ's decision is VACATED for the reasons stated above. The Court REMANDS the case to the agency for further proceedings.
IT IS SO ORDERED.
JUDGMENT
The decision of the Administrative Law Judge is VACATED, and the matter is REMANDED to the Social Security Administration for further proceedings consistent with the Court's Order.