Opinion
For Penny N Yearsley, Plaintiff: William M Kuntz, LEAD ATTORNEY, William M Kuntz PLC, Riverside, CA.
For Carolyn W Colvin, Acting Commissioner of Social Security Administration, Defendant: Ann L Maley, LEAD ATTORNEY, SAUSA - Office of the U.S. Attorney, Social Security Administration, San Francisco, CA; 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.
ORDER VACATING DECISION OF ADMINISTRATIVE LAW JUDGE AND REMANDING FOR PAYMENT OF BENEFITS
HON. MICHAEL R. WILNER, UNITED STATES MAGISTRATE JUDGE.
I. SUMMARY OF RULING
Plaintiff Yearsley challenges the denial of her application for Social Security benefits. On appeal, Plaintiff challenges the sufficiency of the ALJ's adverse credibility finding.
The Court concludes that the ALJ failed to identify specific, clear, and convincing reasons supported by substantial evidence for disbelieving Plaintiff's symptom testimony. As a result, the Court vacates the ALJ's decision and the remands the action to the agency for the calculation and payment of benefits.
II. PLAINTIFF'S CONDITIONS AND PROCEEDINGS BELOW
Plaintiff applied for benefits based on several physical and mental conditions. After an administrative hearing, the ALJ found that Plaintiff's physical conditions (recovery from ovarian cancer, carpal tunnel syndrome, and migraine headaches) constituted " severe impairments" as that term is used under the federal regulations. (AR 12.)
The ALJ determined that Plaintiff had the residual functional capacity (RFC) to perform " sedentary work" with additional limitations. (AR 14.) In establishing the RFC, the ALJ found that Plaintiff was not credible in describing her symptoms and limitations. (AR 15-18.) A vocational expert testified at the hearing that an individual with Plaintiff's RFC could perform her past work. (AR 19, 49.) From this, the ALJ concluded that Plaintiff was not disabled and denied benefits. (AR 49.)
III. DISCUSSION
A. Facts and Decision Below
In her hearing testimony and written submissions to the agency, Plaintiff described severe limitations associated with her carpal tunnel syndrome and migraine headaches. When these conditions flared up, Plaintiff explained that she had considerable difficulty in functioning: " I'm done for the day." Plaintiff described this occurring 9 to 12 times per month. (AR 45-46.)
The ALJ did not believe her. The ALJ identified several reasons to support the adverse credibility determination. On appeal, the government defends the decision based on the ALJ's evaluation of Plaintiff's statements about her daily living. (Docket # 15 at 14.) Those activities constituted Plaintiff's involvement in shared housework, running errands, and swimming daily. (AR 16.) The ALJ also concluded that Plaintiff's treatment constituted conservative care. The ALJ stated that Plaintiff was not believable because she testified that " her migraines increased in frequency and intensity. However, the records reflect that the claimant continuously took the same medications for her migraines[, and] never increased the doses or requested alternate medications." (AR 16.)
The Court commends the candor of the government's lawyer in acknowledging that " not all of the ALJ's reasons for discounting Complainant's credibility were appropriate." (Docket # 15 at 13.) The Court understands this to refer primarily to the ALJ's discussion of Plaintiff's application for unemployment benefits for a period during which she alleged a disability - an application that she filed before she was diagnosed with ovarian cancer and underwent surgery.
B. Standard of Review and Relevant Law
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 proof in an amount or of a nature that " a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). If the evidence presented in an administrative proceeding " can reasonably support either affirming or reversing the decision" of the agency, 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).
Certain disability decisions require an evaluation of a claimant's subjective symptomatic complaints. An ALJ may not " arbitrarily discredit a claimant's testimony." Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). 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 " specific, clear and convincing reasons" for rejecting the claimant's testimony. Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014) (citation omitted).
An ALJ may consider a variety of factors in weighing a claimant's believability, including ordinary techniques of credibility evaluation, 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). The lack of objective medical evidence to support a claimant's allegations " cannot form the sole basis for discounting" subjective symptom testimony. Burch, 400 F.3d at 681. Additionally, an ALJ may not " improperly cherry-pick[ ]" from the medical evidence in reaching a conclusion regarding a claimant's believability. Ghanim, 763 F.3d at 1164.
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, 400 F.3d at 681. The mere fact that a claimant " carried on certain daily activities, such as grocery shopping, driving a car, or limited walking or exercise, does not in any way detract" from his or her credibility as to overall disability. Vertigan v. Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001). 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, 630 (9th Cir. 2007) (quotation omitted).
An ALJ may determine that a claimant lacks credibility based on evidence of conservative treatment. Parra, 481 F.3d at 750-51. A claimant's favorable response to conservative treatment can undermine the claimant's testimony and reports of disabling pain. Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008). An ALJ may also discredit a claimant's testimony for " lack of consistent treatment" or because the claimant " did not seek any treatment or evaluation" for the condition. Burch, 400 F.3d at 681. However, an ALJ " may not render his own medical opinion or substitute his own diagnosis for that of a physician." Rubalcaba v. Colvin, No. CV 13-7068 PLA, 2015 WL 898371 at *10 (C.D. Cal. 2015) (citing Tackett, 180 F.3d at 1102-03).
C. Analysis
In the written decision, the ALJ identified several reasons to disbelieve Plaintiff's testimony. Those reasons were not sufficiently clear or convincing enough nor supported by adequate evidence to survive appellate review.
The ALJ's evaluation of Plaintiff's minimal daily activities was particularly unconvincing. Plaintiff described a series of meager household activities -- assisting her sister's family in folding clothes, emptying a dishwasher, bathing herself, or making local shopping trips -- that the ALJ concluded were " the same as those necessary for obtaining and maintaining employment." (AR 15.) That analysis makes no sense unless the ALJ evaluated whether Plaintiff could work as a full-service housekeeper or personal valet. The ALJ failed to clearly explain how Plaintiff's personal daily activities transfer in any way to the workplace or otherwise compel the conclusion that Plaintiff was not truthful. Orn, 495 F.3d at 630.
Plaintiff's passing admission to her doctor that she swims daily (AR 581, 591) provides a facially more convincing reason to disbelieve her claims of disabling pain or symptoms. Yet, the record is devoid of further important information (How long does she swim? At what pace? Was this exercise prescribed by a physician several months after her cancer surgery to assist in her recovery?) to meaningfully understand its significance.
Tellingly, the ALJ did not ask Plaintiff any questions about this during the administrative hearing. If the ALJ did not find Plaintiff's exercise to be a relevant topic of direct inquiry with her, it cannot -- without more -- constitute evidence sufficient for a reasonable person consider " adequate" to support the adverse credibility decision. Burch, 400 F.3d at 679. To the contrary, the ALJ's actions have a strong feel of " cherry-picking" of the medical records that weigh heavily against the legitimacy and sufficiency of this reason. Ghanim, 763 F.3d at 1163.
The ALJ's conservative-treatment finding fares no better. The ALJ did not dispute Plaintiff's contention that she had a long, documented history of migraines that she disclosed to her physician. The ALJ also was aware that the physician properly diagnosed Plaintiff's condition, and prescribed serious medications to control her migraines. However, the ALJ offered no support for the conclusion that Plaintiff's symptoms were not severe because Plaintiff had not sua sponte changed her medications, " never increased the doses, " or did not request alternate medications. (AR 16.) At most, the ALJ engaged in a set of vague questions (" So you haven't wanted to try maybe injections or other kinds of medications or alternative things to change your treatment?") at the hearing to elicit Plaintiff's personal opinion about further treatment for her condition. (AR 35.)
The National Institute of Health's website (nlm.nih.gov/medlineplus/druginfo/meds, accessed May 28, 2015) describes Depakote (generic = valproic acid) and Topamax (topiramate) as anticonvulsant medications used to treat epilepsy, seizures, bipolar disorder, and migraines.
Taking several serious anticonvulsant medications under a physician's ongoing instructions does not convincingly constitute conservative care. Moreover, unless the ALJ thought that Plaintiff -- a former office manager, not a doctor -- should have self-medicated in some way, issues regarding her evaluation of the level and type of medical care were properly left to her physician. The ALJ's written decision failed to demonstrate that other appropriate treatments were medically available to Plaintiff or that she rejected them; that's the rationale for the conservative-care rejection of testimony. Tommasetti, 533 F.3d at 1040; Burch, 400 F.3d at 681. There certainly was no basis for the ALJ to conclude that Plaintiff's medical treatment was inappropriate. Rubalcaba, 2015 WL 898371 at *10. As a result, the ALJ did not articulate a clear, convincing, or supportable reason to reject her credibility on this ground.
IV. REMEDY
The Court concludes that the ALJ committed error in finding that Plaintiff's symptom testimony was not believable. That error was not harmless, as Plaintiff testified about significant personal limitations due to her migraines and other conditions. Moreover, as the ALJ recognized in setting her RFC, Plaintiff was not able to perform a full range of sedentary work even without consideration of her subjective symptom testimony. The exclusion of that testimony potentially prejudiced her in that it likely could have led to a different result in the original proceedings. Ludwig, 681 F.3d at 1054. Remand is therefore warranted.
That leaves the question of remedy. When a court finds that an ALJ improperly rejected the testimony of a claimant, there is a " three-part credit-as-true standard" that may require the remand of Social Security actions to the agency for the calculation and payment of benefits. Garrison, 759 F.3d at 1020; Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014). Such a disposition is appropriate when a court determines that:
(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 opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.
Garrison, 759 F.3d at 1020.
Remand for payment of benefits is appropriate. The ALJ developed the record fully regarding Plaintiff's medical conditions, her testimony, her limited RFC, and the opinion testimony of the vocational expert. In response to questions from Plaintiff's attorney, the expert opined that Plaintiff was not employable if (as she testified) she were to be off three or more days per month based on her conditions. (AR 51.) If the ALJ were to credit Plaintiff's testimony, Plaintiff would undoubtedly be found disabled and entitled to benefits.
In light of the inadequate adverse credibility finding described above, further proceedings " would serve no useful purpose" here. The ALJ's error requires that the matter be remanded for the prompt payment of benefits.
V. CONCLUSION
The ALJ's decision is VACATED for the reasons stated above. The Court REMANDS the case to the Agency for the calculation and award of disability benefits.
JUDGMENT
It is the judgment of this Court that the decision of the Administrative Law Judge is VACATED, and the matter is REMANDED to the Social Security Administration for the calculation and award of benefits as required by the Court's Order.
However, the Court declines to take up the government's contention that the ALJ's " skepticism [regarding Plaintiff] was reasonable" because her claim of disabling migraines was " at odds with her long work history." (Docket # 15 at 15.) The ALJ did not expressly identify this in the written decision as a reason for disbelieving Plaintiff. Moreover, the government was not able to provide a page citation to show where the ALJ did so in its portion of the joint submission. If the ALJ did not point to Plaintiff's past work history as a reason for finding her untruthful, the government may not rely on it now. Molina v. Astrue, 674 F.3d 1104, 1120 (9th Cir. 2012) (federal court may not uphold an ALJ's adverse credibility determination " on a ground not actually relied upon by the agency").