Opinion
Case No. ED CV 10-1725 JCG
08-11-2011
JOHN HUGH PETTY, Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
MEMORANDUM OPINION AND ORDER
I.
INTRODUCTION AND SUMMARY
On November 22, 2010, plaintiff John Hugh Petty ("Plaintiff") filed a complaint against defendant Michael J. Astrue ("Defendant"), the Commissioner of the Social Security Administration, seeking review of a denial of disability insurance benefits ("DIB") and supplemental security income benefits ("SSI"). [Docket No. 3.]
On May 19, 2011, Defendant filed his answer, along with a certified copy of the administrative record. [Docket Nos. 12, 13, 14.]
In sum, having carefully studied, inter alia, the parties' joint stipulation and the administrative record, the Court concludes that, as detailed below, the Administrative Law Judge ("ALJ") improperly discounted Plaintiff's subjective complaints. The Court thus remands this matter to the Commissioner in accordance with the principles and instructions enunciated in this Memorandum Opinion and Order.
II.
PERTINENT FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, who was 53 years old on the date of his administrative hearing, has a high school education. (See Administrative Record ("AR") at 18, 44, 135.)
On February 20, 2008, Plaintiff filed for DIB and SSI, alleging that he has been disabled since February 4, 2008 due to a congestive heart failure and chronic atrial fibrillation. (See AR at 116, 119, 135, 145.)
On September 17, 2009, Plaintiff, represented by counsel, appeared and testified at a hearing before an ALJ. (See AR at 18-46.) The ALJ also heard testimony from Corinne Porter, a vocational expert ("VE"). (Id.)
On November 10, 2009, the ALJ denied Plaintiff's request for benefits. (AR at 10-17.) Applying the familiar five-step sequential evaluation process, the ALJ found, at step one, that Plaintiff has not engaged in substantial gainful activity since his alleged onset date. (Id. at 12.)
At step two, the ALJ found that Plaintiff suffers from severe impairments consisting of "atrial fibrillation; history of congestive heart failure; history of drug abuse; history of burns on both forearms, and hypertension." (AR at 12 (emphasis omitted).)
At step three, the ALJ determined that the evidence did not demonstrate that Plaintiff's impairments, either individually or in combination, meet or medically equaled the severity of any listing set forth in the Social Security regulations. (AR at 21.)
See 20 C.F.R. pt. 404, subpt. P, app. 1.
The ALJ then assessed Plaintiff's residual functional capacity ("RFC") and determined that he can perform light work. (AR at 13.)
Residual functional capacity is what a claimant can still do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n. 5 (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 lacks the ability to perform his past relevant work as a pipe fitter, heavy equipment operator, construction worker, or dishwasher. (AR at 16.)
At step five, based on Plaintiff's RFC and the VE's testimony, the ALJ found that "there are jobs that exist in significant numbers in the national economy that [Plaintiff] can perform," including cashier, cleaner, and hand packager. (AR at 16-17 (bold omitted).) Thus, the ALJ concluded that Plaintiff was not suffering from a disability as defined by the Act. (Id. at 10, 17.)
Plaintiff filed a timely request for review of the ALJ's decision, which was denied by the Appeals Council. (AR at 1-3, 4.) 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 Dec. 21, 2001). If the court, however, 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 ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)).
IV.
ISSUES PRESENTED
Two disputed issues are presented for decision here:
1. whether the ALJ properly evaluated the opinion of Plaintiff's treating physician, (see Joint Stip. at 4-7); and
2. whether the ALJ properly assessed Plaintiff's credibility. (Id. at 10-13.) Under the circumstances here, the Court finds the issue of the ALJ's evaluation of Plaintiff's credibility to be dispositive of this matter, and does not reach the remaining issue.
V.
DISCUSSION AND ANALYSIS
A. Plaintiff's Credibility
Plaintiff argues that the "ALJ has erred by failing to cite any clear and convincing reasons to reject Plaintiff's subjective complaints other than to state that in his opinion the Plaintiff's complaints are not supported by objective medical evidence." (Joint Stip. at 12.) Plaintiff contends that the ALJ improperly disregarded his "complaints of shortness of breath, fatigue, and chest pain, [which] would clearly require Plaintiff to experience numerous unscheduled work breaks during the course of a given work week." (Id.)
1. The ALJ Must Provide "Clear and Convincing" Reasons For Discounting Plaintiff's Credibility
An ALJ can reject a plaintiff's subjective complaint upon (1) finding evidence of malingering, or (2) expressing clear and convincing reasons for doing so. Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). The ALJ may consider the following factors in weighing a plaintiff's credibility: (1) his or her reputation for truthfulness; (2) inconsistencies either in the plaintiff's testimony or between the plaintiff's testimony and his or her conduct; (3) his or her daily activities; (4) his or her work record; and (5) testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which she complains. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002).
Here, the ALJ did not find evidence of malingering. (See generally AR at 10-17.) Therefore, the ALJ's reasons for rejecting Plaintiff's credibility must rest on clear and convincing reasons. See Benton, 331 F.3d at 1040.
2. The ALJ Improperly Rejected Plaintiff's Subjective Complaints
After a careful review of the medical record and the joint stipulation, the Court has considered the ALJ's sole reason for finding Plaintiff not credible, and concludes that the ALJ has failed to provide legally sufficient justification for discounting Plaintiff's credibility.
Here, the ALJ found that the objective medical evidence does not support Plaintiff's alleged degree of disability. (AR at 14 ("While [Plaintiff] alleges he is unable to perform work activity, his medical records do not contain objective clinical evidence to support his assertion.").)
In so finding, the ALJ noted that although Plaintiff "was admitted to the hospital from February 4, 2008 to February 9, 2008 for shortness of breath," his condition was "very well controlled during his hospitalization." (AR at 14; see also id. at 169 (emergency department respiratory nursing assessment dated February 4, 2008 indicating "severity scale" of "2/10").) The ALJ also reported that "[o]nce [Plaintiff] was clinically stable he had no further complaints of any shortness of breath or palpitations" and "was discharged home with medication." (Id. at 14; see also id. at 162 (Barstow Community Hospital discharge summary dated February 9, 2008 reporting "patient had no further complaints of any shortness of breath or palpitation").) The ALJ found Plaintiff's "February 7, 2008 chest x-ray showed improving congestive heart failure" and he "was discharged with no activity restrictions." (Id. at 14; see also id. at 224 (radiology report of Plaintiff's chest stating "[t]here has been an improvement since the previous exam").)
The Court agrees that there is no objective medical evidence in the record supporting a more restrictive RFC than that determined by the ALJ. (See generally AR at 162-316; see, e.g., id. at 253 (April 12, 2008 emergency department treatment note indicating Plaintiff's respiratory airway is "clear," his effort is "unlabored," and he has no cough).)
Although the Court declines to address Plaintiff's claim that the ALJ improperly evaluated the opinion of V.M. Padmanabha, M.D. ("Dr. Padmanabha"), (see Joint Stip. at 4-7), the Court notes that his conclusory opinion that Plaintiff "is totally and permanently disabled" is "not entitled to special significance." Boardman v. Astrue, 286 Fed.Appx. 397, 399 (9th Cir. 2008) (unpublished memorandum opinion) ("The ALJ is correct that a determination of a claimant's ultimate disability is reserved to the Commissioner, and that a physician's opinion on the matter is not entitled to special significance.").
In other words, Dr. Padmanabha's non-medical opinion that Plaintiff is unable to work is not binding on the Commissioner. See Ukolov v. Barnhart, 420 F.3d 1002, 1004 (2005) ("Although a treating physician's opinion is generally afforded the greatest weight in disability cases, it is not binding on an ALJ with respect to the existence of an impairment or the ultimate determination of disability."); 20 C.F.R. §§ 404.1527(e)(1) ("We are responsible for making the determination or decision about whether you meet the statutory definition of disability. . . . A statement by a medical source that you are 'disabled' or 'unable to work' does not mean that we will determine that you are disabled.") & 416.927(e)(1) (same).
Although the Court finds that substantial evidence supports the ALJ's conclusion that the alleged severity of Plaintiff's symptoms is unsupported by the objective medical evidence, a lack of objective evidence supporting Plaintiff's symptoms cannot be the sole reason for rejecting Plaintiff's testimony. Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001). Because the ALJ failed to provide legally sufficient reasons for rejecting Plaintiff's testimony, remand is warranted on this issue.
VI.
REMAND IS APPROPRIATE
This Court has discretion to remand or reverse and award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989, as amended Oct. 19, 1989). Where no useful purpose would be served by further proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. 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, as amended May 4, 2000), cert. denied, 531 U.S. 1038 (2000). Where there are outstanding issues that must be resolved before a determination can be made, and it is not clear from the record that the ALJ would be required to find plaintiff disabled if all the evidence were properly evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; Harman, 211 F.3d at 1179-80.
Here, there are outstanding issues which must be resolved before a final determination can be made. On remand, the ALJ shall reconsider Plaintiff's subjective complaints and the resulting functional limitations, and either credit Plaintiff's testimony or provide clear and convincing reasons supported by substantial evidence for rejecting them. In addition, if necessary, the ALJ shall obtain additional information and clarification regarding Plaintiff's functional limitations. The ALJ shall then proceed through steps four and five to determine what work, if any, Plaintiff is capable of performing.
In light of the Court's remand instructions, it is unnecessary for the Court to address Plaintiff's remaining contention. (See Joint Stip. at 4-7.)
Based on the foregoing, IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision.
Hon. Jay C. Gandhi
United States Magistrate Judge