Opinion
For Janette Jones, Plaintiff: Erika Bailey Drake, Roger David Drake, LEAD ATTORNEYS, Drake and Drake, Calabasas, CA.
For Carolyn W Colvin, Acting Commissioner of Social Security, Defendant: Francesco P Benavides, LEAD ATTORNEY, SAUSA - U.S. Attorney's Office, San Francisco, CA; Assistant U.S. Attorney LA-CV, AUSA - Office of U.S. Attorney, Civil Division, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, Office of the General Counsel for Social Security Adm., San Francisco, CA.
DECISION AND ORDER
CARLA M. WOEHRLE, United States Magistrate Judge.
PROCEEDINGS
On August 28, 2013, Janette Jones (" Plaintiff") filed a Complaint seeking review of the Commissioner's denial of her application for disability insurance benefits. Thereafter, the parties filed a Consent to Proceed Before United States Magistrate Judge Carla Woehrle. On March 19, 2014, defendant filed an Answer to the Complaint. On May 15, 2014, the parties filed their Joint Stipulation (" Joint Stip.").
As discussed below, the Court finds that the Commissioner's decision should be reversed and this matter remanded for further proceedings.
BACKGROUND
On September 29, 2010, Plaintiff filed an application for disability insurance benefits. (Administrative Record [" AR" ] at 13, 38.) Plaintiff alleged that, beginning on July 10, 2010, she was disabled because of nerve damage, diabetes, thyroid problems, and retinopathy. (AR at 41.) The Commissioner denied Plaintiff's application. (AR at 41-45.) Plaintiff requested an administrative hearing, which was held by an Administrative Law Judge (" ALJ") on February 15, 2012. (AR at 23, 46.) Plaintiff appeared at the hearing with counsel, and the ALJ heard testimony from Plaintiff and a vocational expert. (AR at 24-36.)
The ALJ issued an unfavorable decision on March 23, 2012. (AR at 13-19.) In the decision, the ALJ found that Plaintiff's diabetes mellitus, peripheral neuropathy, hypothyroidism, and hypertension were " severe" impairments, but that she did not have an impairment or combination of impairments that met or equaled the requirements of a listed impairment. (AR at 15.) The ALJ also found that Plaintiff had a residual functional capacity for a range of light work, which precluded Plaintiff from returning to her past relevant work as a deli clerk. (AR at 15-16, 18.) Finally, the ALJ found that Plaintiff could perform other jobs in the national economy: cashier, counter clerk, and inspector. (AR at 19.) The ALJ therefore concluded that Plaintiff was not disabled as defined by the Social Security Act. (AR at 19.)
On April 18, 2012, Plaintiff requested review of the ALJ's decision by the Appeals Council and submitted additional medical evidence. (AR at 7-9, 188-92.) On July 11, 2013, the Appeals Council received the additional evidence and made it part of the record. (AR at 5.) On the same date, the Appeals Council denied Plaintiff's request for review. (AR at 1-6.)
PLAINTIFF'S CONTENTIONS
The parties' Joint Stipulation sets out the following disputed issues:
1. Whether the ALJ properly included all of Plaintiff's " severe" impairments in his Step Two determination and sufficiently explained his Step Three determination;
2. Whether the ALJ properly determined Plaintiff's residual functional capacity;
3. Whether the evidence submitted to the Appeals Council warrants reversal; and
4. Whether the ALJ rendered a proper adverse credibility determination.
The Court finds that Issue Four is dispositive.
STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), this Court reviews the ALJ's decision to determine whether the ALJ's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means " more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). In other words, it is " such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401.
In determining whether substantial evidence supports the ALJ's findings, the Court must review the record as a whole and consider " both the evidence that supports and the evidence that detracts from the Commissioner's conclusion[s]." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). " If the evidence can reasonably support either affirming or reversing, " the Court " may not substitute its judgment" for that of the ALJ, and the ALJ's decision must be upheld. Id. at 720-21; see also Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).
DISCUSSION
A. The Sequential Evaluation
To be eligible for disability benefits a claimant must demonstrate a medically determinable impairment which prevents the claimant from engaging in substantial gainful activity and which is expected to result in death or to last for a continuous period of at least twelve months. Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 721; 42 U.S.C. § 423(d)(1)(A).
Disability claims are evaluated using a five-step test. See 20 C.F.R. § § 404.1520, 416.920. At step one, the ALJ determines if the claimant is engaging in " substantial gainful activity." 20 C.F.R. § § 404.1520(a)(4)(i), 416.920(a)(4)(i). If he is, the claimant is found not disabled. If he is not, the ALJ proceeds to step two.
At step two, the ALJ determines whether the claimant has a " severe" impairment or combination of impairments. 20 C.F.R. § § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment is " severe" if it significantly limits the claimant's ability to perform basic work activities and is expected to persist for a period of twelve months or longer. See Bowen v. Yuckert, 482 U.S. 137, 141, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). If the claimant does not have a " severe" impairment or combination of impairments, disability benefits are denied. 20 C.F.R. § § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the impairment or combination of impairments is " severe, " the ALJ proceeds to step three.
At step three, the ALJ determines whether the claimant's impairment or combination of impairments meets or equals an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1. 20 C.F.R. § § 404.1520(a)(4)(iii), 416. 920(a)(4)(iii). If so, the claimant is automatically determined disabled. See 20 C.F.R. § § 404.1520(d), 416.920(d). If not, the ALJ proceeds to step four.
At step four, the ALJ must assess the claimant's residual functional capacity (" RFC"). The RFC is the " most [one] can still do despite [his or her] limitations" and represents an assessment " based on all the relevant evidence." 20 C.F.R. § § 404.1545(a)(1), 416.945(a)(1). The ALJ then must determine whether the claimant's RFC is sufficient for the claimant to perform past relevant work. 20 C.F.R. § § 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant is capable of performing past relevant work, the claimant is not disabled. If the claimant is no longer capable of past relevant work, the ALJ proceeds to step five. See 20 C.F.R. § § 404.1520(f), 416.920(f).
At the fifth and final step, the ALJ determines whether, considering claimant's RFC, age, education, and work experience, the claimant is able to perform other work that is available in significant numbers in the national economy. 20 C.F.R. § § 404.1520(a)(4)(v), 416.920(a)(4)(v). If he is, the claimant is not disabled. If he is not, the claimant is disabled and entitled to benefits. Id.
Claimants have the burden of proof at steps one through four, subject to the presumption that Social Security hearings are nonadversarial and to the Commissioner's affirmative duty to assist claimants in fully developing the record even if they are represented by counsel. Tackett, 180 F.3d at 1098 and n. 3; Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). If this burden is met, a prima facie case of disability is made, and the burden shifts to the Commissioner at step five. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § § 404.1520, 416.920.
B. Adverse Credibility Determination
In Issue Four, Plaintiff contends that the ALJ failed to set forth legally sufficient reasons for rejecting her subjective symptom testimony. (Joint Stip. at 14-19.)
An ALJ must engage in a two-step analysis to determine whether a claimant's testimony regarding subjective symptoms is credible. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). " First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged." Id. at 1036. The claimant is not required to show that her impairment " could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom." Id. " If the claimant meets the first test and there is no evidence of malingering, the ALJ can only reject the claimant's testimony about the severity of the symptoms if she gives 'specific, clear and convincing reasons' for the rejection." Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (quotation omitted); Lingenfelter, 504 F.3d at 1036.
Plaintiff testified that she cannot work because of diabetes, nerve damage, vision problems, and thyroid problems, impairments which limited her to standing or sitting for fifteen minutes at a time. (AR at 27-28.) She also testified that she had been hospitalized for diabetes and that she used a cane which had not been prescribed by a physician. (AR at 27, 30.)
In addition to providing testimony at the hearing, Plaintiff completed an exertional questionnaire describing her activities and abilities. (AR at 112-19.) In the questionnaire, Plaintiff wrote that she went to the grocery store, prepared meals two to three times per week, and completed household chores such as ironing, cleaning, vacuuming, and washing dishes. (AR at 114, 115.)
In his decision, the ALJ found that, although Plaintiff's medically determinable impairments could be reasonably expected to cause the alleged symptoms, Plaintiff's statements concerning the intensity, persistence, and limiting effects of these symptoms were " not credible" to the extent they were inconsistent with the ALJ's RFC assessment. (AR at 16-17.) As support for this adverse credibility determination, the ALJ provided three broad reasons. (AR at 17-18.) The Court finds that none of the ALJ's reasons was a clear and convincing reason to reject plaintiff's subjective symptom testimony.
One of the reasons provided by the ALJ was that Plaintiff's statements about her daily activities -- grocery shopping, cooking two to three times per week, ironing, cleaning, vacuuming, and washing dishes -- were " inconsistent with her allegation of total disability." (AR at 17.) In general, evidence of a claimant's daily activities " may be grounds for discrediting a claimant's testimony to the extent that they contradict claims of a totally debilitating impairment." Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012). Here, however, the ALJ did not account for the full context of Plaintiff's statements about her daily activities. Specifically, Plaintiff stated that she shops for groceries only once a week for a few items, and performs household chores with the help of her daughter, without much lifting, and for only a few minutes at a time before she needs to sit down. (AR at 114, 115.) Evidence of Plaintiff's daily activities therefore was not a legally sufficient reason for the ALJ's adverse credibility determination because the Plaintiff's statements about those activities, considered in their full context, do not show that she exaggerated her symptoms. See Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014) (ALJ improperly relied on evidence of claimant's daily activities for adverse credibility determination where claimant stated she performed only limited activities, sometimes with help); Reddick, 157 F.3d at 722-23 and n. 1 (same where ALJ did not properly consider claimant's statements about her daily activities in full context, which indicated claimant performed them with weakness, fatigue, and periodic rest).
The next reason provided by the ALJ for his adverse credibility determination was that the medical evidence of record did not substantiate Plaintiff's allegations of disabling limitations, in three separate respects. (AR at 17.) First, the ALJ noted that Plaintiff reported a hospitalization in March 2010, but there was no evidence of the hospitalization in the file. (AR at 17.) However, at least two physicians noted Plaintiff's report of her hospitalization without doubting its veracity, indicating not that Plaintiff had fabricated the event, but that there was an ambiguity or evidentiary gap in the record. (AR at 154, 181.) The ALJ therefore was required to fulfill his duty to develop and supplement the record, rather than summarily reject Plaintiff's report. See Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (" The ALJ's duty to supplement a claimant's record is triggered by ambiguous evidence, the ALJ's own finding that the record is inadequate or the ALJ's reliance on an expert's conclusion that the evidence is ambiguous.") (citing Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)); see also Widmark v. Barnhart, 454 F.3d 1063, 1068-69 (9th Cir. 2006) (ALJ erred in drawing adverse inference based on absence of evidence without fully and fairly developing record to address evidentiary gap).
Second, the ALJ noted that the record contained no evidence of " testing of the extent of [Plaintiff's] neuropathy or any functional limitations" and noted the findings of an examining physician that Plaintiff had " intact sensation in the hands and feet" despite her complaints of " numbness as tingling, as well as pain." (AR at 17.) To the contrary, the record does contain evidence of neurological testing of the extent of Plaintiff's neuropathy and functional limitations, evidence which Plaintiff submitted to the Appeals Council with her request for review. (AR at 5, 190.) According to that treating medical evidence, Plaintiff had a negative Romberg's test; a slow, broad based gait with the need for assistance; a decrease in strength; and a decrease in sensation to soft touch. (AR at 190.) Since this evidence is directly responsive to the ALJ's finding that the record contains no such evidence, the ALJ's finding was legally insufficient to support his adverse credibility determination. See Brewes, 682 F.3d at 1164 (substantial evidence did not support non-disability determination where additional evidence presented to Appeals Council was " directly responsive" to adverse vocational evidence relied upon by ALJ). Moreover, since this treating medical evidence is now part of the record, the ALJ could not have disregarded it in favor of the contrary finding of the examining physician (that Plaintiff had intact sensations in her hands and feet) unless the ALJ had provided legally sufficient reasons for doing so. See Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (opinion of treating physician may be rejected in favor of contrary opinion of examining physician only if the ALJ provides specific and legitimate reasons supported by substantial evidence).
Since Plaintiff submitted this evidence to the Appeals Council as part of her request for review, it is now " part of the administrative record, which the district court must consider when reviewing the Commissioner's final decision for substantial evidence." Brewes v. Commissioner of Social Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012).
Third, the ALJ noted that Plaintiff uses a cane, " but the records do not indicate this was medically prescribed." (AR at 17.) However, there would have been no reason to seek such evidence in the record because Plaintiff never tried to claim that her cane was medically prescribed. Rather, she candidly testified at the hearing that no physician had prescribed the cane, but she used it for support and walking. (AR at 27.) It was improper to draw an adverse inference against Plaintiff based on the absence of supporting evidence for a claim she never made.
The final reason provided by the ALJ for his adverse credibility determination was that Plaintiff's responses and demeanor at the administrative hearing " were not suggestive of a person who is experiencing disabling limitations." (AR at 18.) The ALJ specifically noted that Plaintiff " was able to enter and exit the hearing room without much difficulty, and to answer questions quite thoroughly and clearly, all despite her alleged disabling limitations." (AR at 18.) This was a legally insufficient reason because Plaintiff never suggested that her limitations were of a type to prevent her from entering and exiting rooms or from answering questions properly. In any event, even if the ALJ had convincingly explained how his personal observations of Plaintiff adversely affected her credibility, given the legal insufficiency of the ALJ's other reasons to reject Plaintiff's subjective symptom testimony, this final reason could not be legally sufficient by itself. See Orn, 495 F.3d at 639-40 (" The ALJ's observations of a claimant's functioning may not form the sole basis for discrediting a person's testimony. . . . Because the ALJ's other reasons for rejecting Orn's testimony fail, the ALJ's personal observations standing alone cannot support the adverse credibility finding.") (citing SSR 96-7P, 1996 WL 374186, at *8).
In sum, the Court finds that reversal is warranted based on the ALJ's adverse credibility determination.
C. Remand is Required to Remedy the Defects in the ALJ's Decision
The decision whether to remand for further proceedings is within the discretion of the district court. Harman v. Apfel, 211 F.3d 1172, 1175-1178 (9th Cir. 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 the claimant disabled if all the evidence were properly evaluated, remand is appropriate. Id. at 1179. However, 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. Id. (decision whether to remand for further proceedings turns upon their likely utility).
Here, even crediting Plaintiff's testimony as true, her entitlement to benefits is not clear from the existing record because there is no vocational expert opinion of disability corresponding to Plaintiff's testimony. See id. at 1180 (remanding for further proceedings in part because there was no testimony from the vocational expert that the limitations established by the record would render Plaintiff unable to engage in any work); cf. Garrison v. Colvin, 759 F.3d 995, 1022 (9th Cir. 2014) (remanding for payment of benefits where a vocational expert testified that a person could not work with the limitations established by the improperly discredited evidence). Moreover, even if the remaining issues were decided in Plaintiff's favor, Plaintiff's entitlement to benefits still would not be clear from the existing record. Accordingly, because there remain outstanding issues to be resolved, remand for further proceedings is appropriate.
ORDER
Accordingly, IT IS ORDERED that:
1. The decision of the Commissioner is REVERSED.
2. This action is REMANDED to Defendant, pursuant to Sentence Four of 42 U.S.C. § 405(g), for further proceedings as discussed above.
3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel.
JUDGMENT
IT IS ADJUDGED that this action is remanded to defendant for further proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g) and consistent with the accompanying Decision and Order.