Opinion
Case No. ED CV 13-0282 JCG
11-12-2013
JANICE ELAINE MOSELEY, Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
MEMORANDUM OPINION AND
ORDER
Janice Elaine Moseley ("Plaintiff") challenges the Social Security Commissioner's ("Defendant") decision denying her application for disability benefits. Specifically, Plaintiff contends that the Administrative Law Judge ("ALJ") improperly rejected her credibility. (Joint Stip. at 12-16, 20-21.) The Court agrees with Plaintiff for the reasons discussed below.
A. The ALJ Failed to Provide Clear and Convincing Reasons for Rejecting Plaintiff's Credibility
An ALJ may reject a claimant's credibility "only 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). "General findings are insufficient; rather, 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).
Here, the ALJ provided five reasons in support of her credibility determination. The Court discusses, and rejects, each in turn.
First, the ALJ found that the severity of Plaintiff's symptoms is "greater than expected in light of the medical evidence." (Administrative Record ("AR") at 16.) However, an ALJ "may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain." Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991); Gamer v. Sec'y of Health & Human Servs., 815 F.2d 1275, 1279 (9th Cir. 1987); Summers v. Bowen, 813 F.2d 241, 242 (9th Cir. 1987) (per curiam). Thus, as to this ground, the ALJ's credibility determination is inadequate.
Second the ALJ found that Plaintiff's symptoms were "unusual [] and [] not typical for [her] impairments." (AR at 62.) However, an "ALJ "must not succumb to the temptation to play doctor and make [her] own independent medical findings." Banks v. Barnhart, 434 F.Supp.2d 800, 805 (C.D. Cal. 2006) (quoting Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996); see Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Nelson v. Heckler, 712 F.2d 346, 348 (8th Cir. 1983) (per curiam) ("[T]o attempt to evaluate disability without personal examination of the individual and without evaluation of the disability as it relates to the particular person is medical sophistry at its best.") (citation omitted)). As such, the ALJ's unsupported medical conclusion is insufficient to reject Plaintiff's credibility.
Third, the ALJ found that Plaintiff made "contradictory statements." (AR at 63.) This reason is belied by the record. For instance, the ALJ noted that Plaintiff testified that "her headaches lasted all day," while her July 9, 2009 Headache Questionnaire indicates that "they lasted only an hour or two." (Id. at 63, 157.) However, the ALJ misquoted Plaintiff's testimony and misconstrued her Headache Questionnaire. See Reddick v. Chater, 157 F.3d 715, 723 (9th Cir. 1998) (finding error where ALJ's "paraphrasing of record material [was] not entirely accurate regarding the content or tone of the record.") Plaintiff did not testify that her headaches lasted all day, but rather, that she gets headaches "three times a day, three days a week." (AR at 30.) Neither did Plaintiff state in her Headache Questionnaire that her headaches lasted only an hour or two. (See id. at 157.) Indeed, when asked "How long do your headaches last?" Plaintiff answered "almost all day sometime then sometime a couple of hours." (Id.) Plaintiff was later asked "How long after your headache are you able to resume normal activities?" There, she replied "about 1 to 2 hours." (Id.) It appears as though the ALJ conflated the two questions. The Court, for its part, finds no inconsistency between Plaintiff's answers and her testimony at the hearing.
Next, the ALJ noted that Plaintiff "claimed she had carpal tunnel syndrome, however, the records reveal no finding of carpal tunnel. (Id. at 63.) While testifying, Plaintiff stated the she had been diagnosed with carpal tunnel "A while back, a while back, a while back." Here, Plaintiff's medical records date back only as far as two and a half years. (See AR at 188.) If Plaintiff was diagnosed with carpal tunnel syndrome prior thereto, her statements were not necessarily inconsistent. Further, that Plaintiff would not have included the older record seems reasonable under the circumstances, as it would have been redundant. Plaintiff submitted evidence of another impairment, medical epicondylitis, that causes the same symptoms as carpal tunnel. (See AR at 263, 271, 273, 280, 287.) Thus, as to this ground, the ALJ's credibility determination was erroneous.
Fourth, the ALJ found that Plaintiff's daily activities "could not be objectively verified." (AR at 63.) However, the ALJ's "standard imposes an extremely heavy, and unwarranted burden on Plaintiff." Bernal v. Astrue, 2011 WL 1790052, at *6 (C.D. Cal. May 9, 2011) (citations omitted); see also Haller v. Astrue, 2008 WL 4291448, at *5 (E.D. Cal. Sept. 18, 2008) (rejecting ALJ's credibility determination based on his finding that claimant's "limited daily activities . . . could not be objectively verified with any reasonable degree of certainty.") (citations omitted). Social Security regulations make clear that a claimant's statements about daily activities will be evaluated in relation to the objective medical record. See 20 C.F.R. § 404.1529(c)(4) (amended in other sections). "The ALJ cites no authority suggesting that a claimant is required to offer objective verification, to a reasonable degree of certainty, regarding his activities of daily living." Haller, 2008 WL 4291448, at *5; see also Lester, 81 F.3d at 834 ("General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints."). As to this ground, the ALJ improperly rejected Plaintiff's credibility by imposing a heightened standard.
Fifth, the ALJ found that "Plaintiff provided very brief responses to direct questions." The Court disagrees. After reviewing the hearing transcript, the Court finds that Plaintiff's answers were responsive, respectful, and of reasonable length. (See AR at 42.) Therefore, the ALJ's credibility finding is insufficient.
B. Remand is Warranted
With error established, this Court has discretion to remand or reverse and award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 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). But where there are outstanding issues that must be resolved before a determination can be made, or 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 id. at 594.
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. He shall also resolve all ambiguity in the record.
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.1
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Hon. Jay C. Gandhi
United States Magistrate Judge