Opinion
No. CV 14-05308-VBK
05-28-2015
LARRY SMITH, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER (Social Security Case)
This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the Administrative Record ("AR") before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified AR.
Plaintiff raises the following issues:
1. Whether the Administrative Law Judge ("ALJ") properly
considered Plaintiff's testimony.(JS at 4.)
This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that for the reasons set forth, the decision of the Commissioner must be reversed and the matter remanded.
I
THE ALJ DID NOT FOLLOW APPLICABLE REGULATIONS AND CASE LAW IN
DISCOUNTING THE SUBJECTIVE SYMPTOM TESTIMONY PROVIDED BY PLAINTIFF
In an unfavorable Decision following a brief hearing before an ALJ (AR 27-34; 39-50, respectively), it was determined that Plaintiff is not disabled. Following the familiar five-step evaluation process, the ALJ concluded, at Step Four, that Plaintiff is capable of performing his past relevant work. (AR 33.) The ALJ found Plaintiff's subjective symptom testimony not credible to the extent it was inconsistent with the determined residual functional capacity ("RFC"), that Plaintiff can perform the full range of medium exertional work. (AR 31-32.)
Plaintiff unsuccessfully requested review by the Appeals Council. (AR 21-23, 1-7.) This lawsuit followed.
The ALJ depreciated Plaintiff's symptom testimony because he concluded it was inconsistent with "the objective medical evidence . . ." (AR 32.) Although there are some peripheral references, which the Court will discuss, the basic and principal factor relied upon by the ALJ was this supposed discrepancy between Plaintiff's testimony and the objective medical evidence.
Evaluation of subjective symptom testimony occurs in the vast majority of cases, and the evaluative procedure should be quite familiar to an ALJ. The evaluation is governed by regulation (Social Security Ruling ["SSR"] 96-7p), and by familiar case law. See, e.g., Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991)(en banc). In a two step process, it must first be determined whether the medically determinable impairments could reasonably be expected to cause the alleged symptoms. The ALJ so found. (AR 32.) The next step is whether, absent evidence of malingering (and there is none cited), there are clear and convincing reasons, which must be articulated in the decision, to reject this testimony. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)(citing Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); see also Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir. 1996). See also 20 C.F.R. § 404.1529(c)(2).
It is clearly established beyond debate that an ALJ may not entirely base a credibility assessment on a perceived inconsistency between subjective symptoms as testified to by a claimant, and objective medical evidence. Yet, this is what happened in this case.
This would normally be the end of the matter, but giving the ALJ the benefit of any doubt, the Court can find some references in the decision to what might be termed other reasons to discount credibility. The ALJ noted that Plaintiff "acknowledged" that he is able to perform household chores, shop for groceries, and use public transportation. (AR 32, citing Plaintiff's Exertional Activities Questionnaire, AR 149-151.) But, even looking at this document with any care would reveal that Plaintiff complained of pain which he suffers when performing any of these activities, in addition to fatigue and shortness of breath. (Id.) Indeed, the ALJ noted that Plaintiff's statements in his functional report are of the same general nature as the subjective complaints articulated in his testimony. (AR 31-32.) In essence, the ALJ acknowledged consistency in Plaintiff's different reporting of his subject symptoms. Moreover, it is fundamental to Social Security law that the types of daily activities in which an individual engages must be consistent in exertional requirements and duration with full-time work activity in order to discount a claim of disability. See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). See also 20 C.F.R. § 416.912(a).
Any reference to the ALJ's reliance on a Social Security Administration claims representative's observations of Plaintiff during an office meeting are entirely not relevant to a credibility determination. (See AR at 30.)
In sum, the Decision which the Court is reviewing contains no sufficient reasons to depreciate Plaintiff's credibility. Plaintiff asks that the Court credit as true Plaintiff's subjective symptom testimony, and the Court has carefully considered this request. In this case, because of the complete inadequacy of the articulated reasons set forth in the decision, the Court will not reward the Commissioner by allowing a second bite of the apple, but instead, will require that on remand, at a new hearing, Plaintiff's subjective pain testimony be credited as true. See Varney v. Secretary of Health and Human Services, 859 F.2d 1396, 1398, 1401 (9th Cir. 1988). The Court will not, however, remand for determination and award of benefits, since there may be additional analysis which can and should be performed to determine if Plaintiff qualifies as disabled.
For the foregoing reasons, this matter will be remanded for further hearing consistent with this Memorandum Opinion.
IT IS SO ORDERED. DATED: May 28, 2015
/s/_________
VICTOR B. KENTON
UNITED STATES MAGISTRATE JUDGE