Opinion
NO. ED CV 14-101-E
10-20-2014
ROBERT G. BROWN, Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM OPINION AND ORDER OF REMAND
Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.
PROCEEDINGS
Plaintiff filed a complaint on January 15, 2014, seeking review of the Commissioner's denial of disability benefits. The parties filed a consent to proceed before a United States Magistrate Judge on March 1, 2014. Plaintiff filed a motion for summary judgment on August 1, 2014. Defendant filed a motion for summary judgment on October 2, 2014. The Court has taken the motions under submission without oral argument. See L.R. 7-15; Order, filed January 27, 2014.
BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
Plaintiff, a former fire alarm installer, asserts disability since July 17, 2009, based primarily on alleged ankylosing spondylitis (Administrative Record ("A.R.") 38, 54, 124-25, 145-46). Plaintiff testified, "I have chronic pain throughout my back; lower back and upper back pain; my neck" (A.R. 40). Plaintiff claimed he could move his neck only a few degrees and also claimed his back is severely restricted in its range of motion (A.R. 40-41). Plaintiff reportedly is unable to use his hands to perform tasks for any length of time (A.R. 43). Plaintiff reportedly is often fatigued, must lie down during the day, and is "constantly out of breath" (A.R. 45-47). Plaintiff allegedly suffers these disabling symptoms despite having received medical treatments including injections with Humira, injections with steroids, injections with Toradol, and the use of prescription muscle relaxants and narcotic pain medication such as Vicodin (A.R. 161, 257-58, 297, 300, 304, 347).
Ankylosing spondylitis is "a progressive, degenerative disease of the spine and joints which destroys cartilage and causes bones to fuse together." Liebig-Grigsby v. United States, 2003 WL 1090272, at *11 (N.D. Ill. 2003); see also Campbell v. Astrue, 2011 WL 90312, at *3 n.10 (E.D. Cal. Jan. 7, 2011) ("Ankylosing spondylitis is a long-term disease that causes inflammation of the joints between the spinal bones, and the joints between the spine and pelvis. It eventually causes the affected spinal bones to join together") (citations and quotations omitted).
An Administrative Law Judge ("ALJ") found Plaintiff has severe "ankylosing spondylosis" which renders Plaintiff "unable to perform any past relevant work" (A.R. 13, 17). The ALJ also found, however, that Plaintiff retains the residual functional capacity to perform certain medium work, including the jobs of "kitchen helper" and "assembler" (A.R. 15-19).
In deeming Plaintiff not disabled, the ALJ determined that Plaintiff's testimony regarding his pain and functional limitations was less than fully credible (A.R. 16-17). The ALJ stated only two reasons for this credibility determination. According to the ALJ, (1) Plaintiff's allegations of pain severity and functional limitations "are greater than expected in light of the objective [medical] evidence of record" (A.R. 17); and (2) "Although the claimant has received treatment for the allegedly disabling impairment, that treatment has been essentially routine and/or conservative in nature. There is no record of hospital admission or undergone [sic] aggressive treatment such as surgery for his back and neck pain. The lack of more aggressive treatment or surgical intervention suggests the claimant's symptoms and limitations were not as severe as he alleged" (A.R. 16-17). The Appeals Council denied review (A.R. 1-3).
STANDARD OF REVIEW
Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner of Social Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).
DISCUSSION
When an ALJ finds that a claimant's medically determinable impairments reasonably could be expected to cause the symptoms alleged, the ALJ may not discount the claimant's testimony regarding the severity of the symptoms without making "specific, cogent" findings, supported in the record, to justify discounting such testimony. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); see also Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990); Varney v. Secretary, 846 F.2d 581, 584 (9th Cir. 1988). Generalized, conclusory findings do not suffice. See Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) (the 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 and did not arbitrarily discredit the claimant's testimony") (internal citations and quotations omitted); Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (the ALJ must "specifically identify the testimony [the ALJ] finds not to be credible and must explain what evidence undermines the testimony"); Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) ("The ALJ must state specifically which symptom testimony is not credible and what facts in the record lead to that conclusion."); see also Social Security Ruling 96-7p.
In the absence of a finding of "malingering," or at least evidence of "malingering," most recent Ninth Circuit cases have applied the "clear and convincing" standard. See, e.g., Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014); Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Taylor v. Commissioner of Social Security Admin., 659 F.3d 1228, 1234 (9th Cir. 2011); Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting cases). In the present case, the ALJ's findings are insufficient under either standard, so the distinction between the two standards (if any) is academic.
In the present case, the ALJ found that Plaintiff's "medically determinable impairment could reasonably be expected to cause the alleged symptoms. . . ." (A.R. 17). The ALJ discounted the credibility of Plaintiff's testimony regarding the severity of the symptoms for two stated reasons: (1) the "objective [medical] evidence of record"; and (2) the "essentially routine and/or conservative" nature of Plaintiff's medical treatment (A.R. 16-17). These stated reasons do not suffice on the present record.
A lack of objective medical evidence to support the alleged severity of a claimant's symptomatology "can be a factor" in rejecting a claimant's credibility, but cannot "form the sole basis." See Burch v. Barnhart, 400 F.3d 676, 681 (2005). Therefore, the alleged lack of supporting objective medical evidence cannot by itself justify the ALJ's credibility determination in the present case. See id.
A "conservative" course of treatment may sometimes properly discredit a claimant's allegations of disabling symptoms. See, e.g., Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007), cert. denied, 552 U.S. 1141 (2008) (treatment with over-the-counter pain medication is "conservative treatment" sufficient to discredit a claimant's testimony regarding allegedly disabling pain). In the present case, however, it is uncertain whether the ALJ accurately characterized Plaintiff's treatment as "essentially routine and/or conservative in nature." See, e.g., 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"); Brunkalla-Saspa v. Colvin, 2014 WL 1095958, at *1 (C.D. Cal. March 18, 2014) ("[T]he ALJ found that Plaintiff had been conservatively treated with Vicodin. . . . But Vicodin qualifies as strong medication to alleviate pain") (citations and quotations omitted); Harrison v. Astrue, 2012 WL 527419, at *7 (D. Or. Feb. 16, 2012) (nerve blocks and multiple steroid injections "certainly not conservative"); but see Nash v. Astrue, 2012 WL 6700582, at *9 (C.D. Cal. Dec. 21, 2012) (declining to "second guess" the ALJ's characterization as "routine conservative treatment" the prescribing of pain medicine, muscle relaxers and Humira injections for ankylosing spondylitis).
Regardless of the proper characterization of the treatment Plaintiff has received, the critical question here is whether substantial evidence supports the ALJ's inference that "[t]he lack of more aggressive treatment or surgical intervention suggests [Plaintiff's] symptoms and limitations were not as severe as he alleged" (A.R. 17). On the present record, this question must be answered in the negative.
The record does not contain any medical evidence that surgical intervention or other "aggressive" treatment would be an appropriate or effective response to Plaintiff's claimed symptomatology. Plaintiff's treating rheumatologist, who opined that Plaintiff is disabled, has not prescribed surgery or any other treatment Plaintiff has failed to undergo (A.R. 255-56, 348-52). Neither has any other physician. "A claimant cannot be discredited for failing to pursue non-conservative treatment options where none exist." Devee v. Colvin, 2014 WL 4220909, at *11 (D. Or. Aug. 25, 2014); see Condon v. Astrue, 780 F. Supp. 2d 831, 837 (N.D. Iowa 2011) (reasoning that the absence from a lengthy medical record of any recommendation for "more aggressive treatment would seem to suggest no more aggressive treatment options exist").
Defendant's motion cites an internet article while arguing that "total joint replacement" can sometimes be a "treatment option" for ankylosing spondylitis (Defendant's motion at 9 n.4). The cited article, which is not part of the administrative record, indicates that "[t]he most commonly replaced joints are the knee and hip." See www.niams.nih.gov/Health_Info/Ankylosing_spondylitis/. Plaintiff complains of shortness of breath and restrictions in the movement of his neck, back and hands. "Total joint replacement" presumably would not be a treatment option for any of these claimed symptoms. Even if this Court could consider evidence outside the administrative record (which it cannot), the cited article provides no substantial evidence that "surgery for [Plaintiff's] back and neck pain" or other "more aggressive treatment" would be an appropriate or effective medical response to Plaintiff's claimed symptoms (A.R. 16-17). The above-quoted speculation of the ALJ cannot substitute for medical evidence, and the speculation cannot support the inference on which the validity of the ALJ's credibility determination depends. See Day v. Weinberger, 522 F.2d at 1156 (an ALJ who is not qualified as a medical expert cannot make "his own exploration and assessment as to [the] claimant's physical condition"); see also Rohan v. Chater, 98 F.3d 966, 970-71 (7th Cir. 1996) (ALJ may not rely on his or her own lay opinion regarding medical matters); Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1995) (same); cf. Rudder v. Colvin, 2014 WL 3773565, at *12 (N.D. Ill. July 30, 2014) ("The ALJ may be correct that disabling limitations from multiple sclerosis would result in more frequent treatment or need for medication. However, the ALJ must include evidence to support such a conclusion in his opinion because he is not qualified, on his own, to make such determinations") (citations and quotations omitted).
Absent circumstances justifying a "sentence six" remand, the District Court is confined to a review of the evidence contained within the administrative record. See 42 U.S.C. § 405(g); Mayes v. Massanari, 276 F.3d 453, 461-63 (9th Cir. 2001); cf. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975) (ALJ should not go outside the record to consult medical textbooks).
In sum, Plaintiff's failure to receive "more aggressive treatment or surgical intervention" is an insufficient reason for discounting Plaintiff's credibility. See Matamoros v. Colvin, 2014 WL 1682062, at *4 (C.D. Cal. April 28, 2014) ("The ALJ cannot fault [the claimant] for failing to pursue non-conservative treatment options if none exist") (citation omitted); Clark v. Astrue, 2013 WL 254065, at *12 (D. Ariz. Jan. 23, 2013) ("There is no evidence in the record that Plaintiff was prescribed a TENS unit, cane, walker, wheelchair, or directed to use a heating pad and thus the ALJ's speculation that Plaintiff should have used those or other 'treatment modalities' is not a clear and convincing reason for discounting her credibility"); Townson v. Astrue, 2010 WL 2077187, at *15 (D. Kan. 2010) ("[O]n this record, it is speculative for the ALJ to assume that if claimant were as disabled as he claims, his doctors would have ordered more aggressive treatment. . . . This comment assumes that plaintiff's doctors disbelieved plaintiff's pain complaints, when the record does not show that they did") (citations and quotations omitted).
Because the circumstances of this case suggest that further administrative review could remedy the ALJ's errors, remand is appropriate. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) ("Connett") (remand is an option where the ALJ fails to state sufficient reasons for rejecting a claimant's excess symptom testimony); but see Orn v. Astrue, 495 F.3d 625, 640 (9th Cir. 2007) (citing Connett for the proposition that "[w]hen an ALJ's reasons for rejecting the claimant's testimony are legally insufficient and it is clear from the record that the ALJ would be required to determine the claimant disabled if he had credited the claimant's testimony, we remand for a calculation of benefits") (quotations omitted); see also Ghanim v. Colvin, 763 F.3d at 1166 (remanding for further proceedings where the ALJ failed to state sufficient reasons for deeming a claimant's testimony not credible); Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) (court may "remand for further proceedings, even though all conditions of the credit-as-true rule are satisfied, [when] an evaluation of the record as a whole creates serious doubt that a claimant is, in fact, disabled"); Vasquez v. Astrue, 572 F.3d 586, 600-01 (9th Cir. 2009) (a court need not "credit as true" improperly rejected claimant testimony where there are outstanding issues that must be resolved before a proper disability determination can be made); see generally INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative determination, the proper course is remand for additional agency investigation or explanation, except in rare circumstances).
There are outstanding issues that must be resolved before a proper disability determination can be made in the present case. For example, it is not clear whether the ALJ would be required to find Plaintiff disabled for the entire claimed period of disability even if Plaintiff's testimony were fully credited. See Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010).
CONCLUSION
For all of the foregoing reasons, Plaintiff's and Defendant's motions for summary judgment are denied and this matter is remanded for further administrative action consistent with this Opinion.
The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time. "[E]valuation of the record as a whole creates serious doubt that [Plaintiff] is in fact disabled." See Garrison v. Colvin, 759 F.3d at 1021.
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LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: October 20, 2014.
/S/____________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE