Opinion
For Gayle Allen Darche, Jr, Plaintiff: Bill LaTour, LEAD ATTORNEY, Bill LaTour Law Offices, Colton, CA.
For Carolyn W Colvin, Commissioner of Social Security, Defendant: Assistant U.S. Attorney LA-CV, LEAD ATTORNEY, 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; Carolyn B Chen, LEAD ATTORNEY, Office of the United States Attorney, Social Securtiy Administration, San Francisco, CA.
ORDER REVERSING DECISION OF COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS
DAVID T. BRISTOW, UNITED STATES MAGISTRATE JUDGE.
Plaintiff filed a Complaint on May 29, 2014, seeking review of the Commissioner's denial of his application for Disability Insurance and Supplemental Security Income Disability Benefits. In accordance with the Magistrate Judge's Case Management Order, the parties filed a Joint Stipulation (" Jt. Stip.") on January 30, 2015. Thus, this matter now is ready for decision.
As the parties were advised in the Case Management Order, the decision in this case is being made on the basis of the pleadings, the Administrative Record (" AR"), and the Joint Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g).
DISPUTED ISSUE
Whether the Administrative Law Judge (" ALJ") properly considered plaintiff's testimony and made proper credibility findings. (Jt. Stip. 1-9.)
DISCUSSION
Plaintiff contends that the " ALJ [did] not indicate[] which specific statements made by the plaintiff he accepted or rejected nor does he provide clear and convincing [reasons] for implicitly rejecting plaintiff's testimony and statements." (Jt. Stip. 2.) Where the claimant has produced objective medical evidence of an impairment or impairments which could reasonably be expected to produce some degree of pain and/or other symptoms, and the record is devoid of any affirmative evidence of malingering, the ALJ may reject the claimant's testimony regarding the severity of the claimant's pain and/or other symptoms only if the ALJ makes specific findings stating clear and convincing reasons for doing so. See Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc); see also Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). The ALJ " must identify what testimony is not credible and what evidence undermines the claimant's complaints." Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (as amended); see also Dodrill, 12 F.3d at 918. Further, a credibility finding must be " sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit [the] claimant's testimony." Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). Factors that may be considered include: (1) The claimant's reputation for truthfulness; (2) inconsistencies in testimony or between testimony and conduct; (3) the claimant's daily activities; (4) an unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment; and (5) testimony from physicians concerning the nature, severity, and effect of the symptoms of which the claimant complains. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); see also Thomas, 278 F.3d at 958-59.
At the administrative hearing held on January 10, 2013, plaintiff testified that he suffers from upper and lower back pain, neck pain, issues with his knee and ankle, and numbness in his hands. (AR 27-38.) When asked about his daily activities, such as household chores, plaintiff stated that he can handle " light stuff" like " walk around with a little hoe and knock a few weeds out." (AR 27.) Plaintiff reported that he tries to stretch and walk around, keeping mobile, for exercise. (AR 28.) He stated that he drives " a couple times a week, " but only for a short distance. (AR 28.) Plaintiff stated that he has looked for light duty work, but has not been successful, as he cannot sit for very long. He reiterated that his biggest difficulty is being able to sit for only five to twenty minutes at a time. (AR 29.) Plaintiff further testified that he takes prescription Ibuprofen for his back pain, but that it provides only limited relief. (AR 30.) Because the Ibuprofen causes plaintiff to suffer stomach aches, he has reduced his intake and, instead of taking medication, he will " lay down" or " wander around" for relief. (Id.) Plaintiff testified that he has not had any further treatment for his back, although he testified that he was informed by his healthcare provider that he was to receive both an MRI as well as " pain control, " but his insurer, Arrowcare, had not yet approved the procedures. (AR 31.) Petitioner testified that his hands are " constantly numb, " a condition which occurs mostly when he is driving or when he is laying down sleeping at night. (AR 34.) At the administrative hearing, the ALJ also heard testimony from Allen Cummings, a vocational expert (" VE"). In response to a hypothetical question from the ALJ, the VE testified, inter alia, that, while jobs were available in the national economy based on a light level of exertion, no jobs were available if an individual needed to take unscheduled work breaks at varying durations and frequencies in an eight-hour work day. (AR 43.)
Ibuprofen is a nonsteroidal anti-inflammatory drug (NSAID), used to reduce hormones that cause inflammation and pain in the body.
In his decision, the ALJ found that, " [a]fter careful consideration of the evidence . . . claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimants statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons explained in this decision." (AR 12.) The ALJ found that plaintiff suffered from the following severe impairments: Degenerative disc disease of the lumbar spine, cervical spine, and thoracic spine; lumbar, cervical, and thoracic myofascial strain; right patellofemoral syndrome, status post right knee arthroscopy; right Achilles tendinitis; and major depression. (AR 10.) However, the ALJ also found that, as to the ankle sprain and hand numbness symptoms, " [t]hese conditions have been managed conservatively, and have not required any aggressive treatment." (Id.) The ALJ further noted that plaintiff complained of right ankle pain and numbness in his hands, but had not received significant treatment for such, and denied having physical therapy or injections. (AR 15.) Moreover, the ALJ concluded that " [d]espite the complaints, the claimant testified he could shower on his own, cook a little and shop. His function report indicates additional participation in daily activities." (Id.)
These were not clear and convincing reasons to reject plaintiff's subjective symptom testimony.
First, the ALJ erred to the extent he rejected plaintiff's credibility based on a lack of objective medical evidence. Bunnell, 947 F.2d at 345 (Once a plaintiff meets the burden of producing objective medical evidence of his impairments and shows that the impairments could reasonably be expected to produce some degree of the alleged symptoms, medical findings are not required to support the alleged severity of pain.). Here, plaintiff provided sufficient medical evidence of underlying impairments that were reasonably likely to cause the symptoms he described, and the ALJ failed to specifically explain how the evidence undermined his testimony. See Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (" The ALJ must provide 'clear and convincing' reasons to reject a claimant's subjective testimony, by specifically identifying 'what testimony is not credible and what evidence undermines the claimant's complaints.'") (quoting Lester, 81 F.3d at 834); Fair, 885 F.2d at 602 (" In order to disbelieve a claim of excess pain, an ALJ must make specific findings justifying that decision.").
Second, the ALJ improperly rejected plaintiff's credibility based on his daily activities. For example, the ALJ noted that " [d]espite the complaints, complainant testified he could shower on his own, cook a little, and shop. His function report indicates additional participation in daily activities." (AR 15.) However, at the hearing, plaintiff testified that he did some " light stuff" when asked by the ALJ about any chores he did at home, and specifically only mentioned " knock[ing] a few weeds out here and there" with a hoe. (AR 27.) He denied doing any other work around the home. He consistently testified that the greatest impediment to his daily activities - and to working - was his back pain which restricted his ability to sit for more than short periods, and which greatly curtailed his ability to drive long distances. (See AR 28-35.) In his function report, plaintiff did not list any activities which substantially deviated from his testimony (see AR 217-24), stating, inter alia, that he performed light housekeeping tasks and minimal meal preparation (AR 218-19). Again, the ALJ failed to specify how plaintiff's activities undermined his credibility, and, therefore, plaintiff's daily activities do not support the ALJ's rejection of his subjective complaints or the ALJ's conclusion that he is able to sustain gainful employment. See Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) (ALJ errs in failing to make a finding to the effect that ability to perform daily activities translated into the ability to perform appropriate work); see also Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (" This court has repeatedly asserted that the mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from her credibility as to her overall disability.").
Third, the Court declines to find that the ALJ's conclusion that plaintiff pursued a conservative regimen of treatment was clear and convincing. The ALJ found that plaintiff's ankle sprain and hand numbness has been " managed conservatively, and have not required any aggressive treatment" (AR 10) and, elsewhere in his decision, noted that plaintiff " had not received significant treatment" for these conditions such as " physical therapy or injections." (AR 15.) These conclusions are not supported by the record. At the administrative hearing, plaintiff testified that he was taking Ibuprofen for his back pain, but that he had to limit his intake of this medication, as it gave him stomach aches. (AR 30.) Moreover, when questioned by the ALJ whether he had any other recent treatment, such as physical therapy or injections, plaintiff stated, " No. You know, I have this Arrowcare insurance . . . and, they're - - the doctor, three, four months - - three months ago, they were supposed to send me to Arrowhead Regional Medical Center and get an MRI and get me on some kind of pain control deal but - - and every time I call, it's, like, well, we haven't got it scheduled yet and - -." (AR 31.) Thus, to the extent that the ALJ characterized plaintiff's failure to obtain physical therapy or other treatment as undermining his credibility, the record does not support this conclusion. See Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (Plaintiff's " failure to receive medical treatment during the period that he had no medical insurance cannot support an adverse credibility finding."); Regennitter v. Comm'r of Social Sec. Admin., 166 F.3d 1294, 1297 (9th Cir. 1999) (ALJ's finding that claimant did not require strong analgesic medication was not a clear and convincing reason where claimant established that he could not afford it.); Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995) (" a claimant who meets the disability criteria may not be denied benefits if he is unable to afford the treatment that would help him"); Velez v. Astrue, No. 12-CV-03036-EJD, 2013 WL 5442375, at *8 (N.D. Cal. Sept. 30, 2013) (" The record demonstrates that Plaintiff did not frequently utilize mental health services due to the fact that Plaintiff's insurance did not approve any further mental health treatment. Again, finding Plaintiff not credible due to her inability to pay for mental health treatment is not a clear and convincing reason to reject her testimony").
Finally, the Court declines to embrace defendant's argument that any erroneous credibility findings by the ALJ were harmless. (Jt. Stip. 7-8.) As noted, the VE testified that there were no jobs in the national economy for an individual who needed to take unscheduled breaks, of varying frequency and duration, during an eight hour day. (AR 43.) As plaintiff's subjective complaints of pain would appear to place him in that category, the error in assessing plaintiff's credibility was not harmless. See, e.g., Lingenfelter, 504 F.3d at 1041.
Thus, the Disputed Issue in this case warrants reversal of the Commissioner's decision.
CONCLUSION AND ORDER
The law is well established that the decision whether to remand for further proceedings or simply to award benefits is within the discretion of the Court. See, e.g., Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) (as amended); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). Remand is warranted where additional administrative proceedings could remedy defects in the decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984); Lewin, 654 F.2d at 635. Remand for the payment of benefits is appropriate where no useful purpose would be served by further administrative proceedings, Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); where the record has been fully developed, Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where remand would unnecessarily delay the receipt of benefits, Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985) (per curiam) (as amended).
This is not an instance where no useful purpose would be served by further administrative proceedings. Rather, this is an instance where additional administrative proceedings could remedy the defects in the ALJ's decision.
Pursuant to sentence four of 42 U.S.C. § 405(g), IT THEREFORE IS ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedings.
JUDGMENT
In accordance with the Order Reversing Decision of Commissioner and Remanding for Further Administrative Proceedings, filed herewith, IT IS HEREBY ADJUDGED that the decision of the Commissioner of Social Security is reversed and this matter is remanded for further administrative proceedings.