Boyd Paul v. Andrew M. Saul

Opinion

BOYD P.,1 Case No. 5:19-cv-01161-GJS

Plaintiff

v. MEMORANDUM OPINION AND ORDER ANDREW M. SAUL, Commissioner of Social Security,2 Defendant.

Plaintiff Boyd P. (“Plaintiff”) filed a complaint seeking review of the decision of the Commissioner of Social Security denying his application for Disability Insurance Benefits (“DIB”). The parties filed consents to proceed before the undersigned United States Magistrate Judge [Dkts. 11 and 20] and briefs addressing disputed issues in the case [Dkt. 18 (“Pl. Br.”), Dkt. 21 (“Def. Br.”)]. The matter is now ready for decision. For the reasons discussed below, the Court finds that this

1 In the interest of privacy, this Order uses only the first name and the initial of the last name of the non-governmental party. 2 Andrew M. Saul, now Commissioner of the Social Security Administration, is substituted as defendant for Nancy A. Berryhill. See Fed. R. Civ. P. 25(d). matter should be remanded for further proceedings. Plaintiff filed for DIB on August 24, 2015, alleging disability beginning September 22, 2014. [AR 466-469.] After Plaintiff’s original application was denied, Plaintiff appeared and testified at a hearing before Administrative Law Judge Josephine Arno. [AR 340-363.] Applying the five-step sequential evaluation process, the ALJ found that Plaintiff was not disabled. See 20 C.F.R. §§ 416.920(b)-(g)(1). [AR 175-187.] At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since September 22, 2014, the alleged onset date. [AR 177.] At step two, the ALJ found that Plaintiff suffered from severe impairments including: “degenerative disc disease of the cervical spine with stenosis and left sided radiculopathy status post cervical discectomy in October 2016, degenerative disc disease of the lumbar spine with stenosis, chronic pain syndrome, depression and anxiety with panic attacks.” [AR 178.] The ALJ determined at step three that Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments. [AR178.] At step four, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to perform a limited range of light work. [AR 180.] Applying this RFC, the ALJ found that Plaintiff was unable to perform his past relevant work as a truck driver, but determined that based on his age (50 years old) and high school education, he could perform representative occupations such as cashier II, routing clerk, or solderer and, thus, is not disabled. [AR 186.] Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to determine if: (1) the Commissioner’s findings are supported by substantial evidence; and (2) the Commissioner used correct legal standards. See Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012) (internal citation omitted). “Substantial evidence is more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (internal citations omitted). The Court will uphold the Commissioner’s decision when the evidence is susceptible to more than one rational interpretation. See Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). However, the Court may review only the reasons stated by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not reverse the Commissioner’s decision if it is based on harmless error, which exists if the error is “inconsequential to the ultimate nondisability determination, or if despite the legal error, the agency’s path may reasonably be discerned.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations omitted). IV. DISCUSSION Plaintiff’s sole claim is that the ALJ failed to provide sufficient reasons for rejecting his subjective testimony. [Pl.’s Br. at 4-14.] Specifically, Plaintiff argues that the ALJ offered only one reason for discounting his testimony: that the medical evidence does not support his allegations of the severity of his impairments, which Plaintiff argues cannot be the sole reason for rejecting his complaints. [Pl. Br. at 6- 14.] A. Plaintiff’s Testimony At the administrative hearing, Plaintiff testified that the pain from his neck, arms, wrists, back, and shoulders prevents him from performing work activity on a sustained basis. [AR 344-358, AR 491-499.] To alleviate his impairments, Plaintiff had spine surgery in October 2016, but he claims his pain did not improve. [AR 345- 346.] When asked about his daily activities, Plaintiff testified that he lives with his oldest daughter in an upstairs bedroom. Plaintiff stated that he must be careful going up and down the stairs by relying on the handrail. [AR 348.] With respect to household chores, Plaintiff testified that his daughter does most of the dishes with Plaintiff only helping to wash sporadically. [AR 347, 493.] Plaintiff’s daughter also does the grocery shopping. [AR 349.] Plaintiff can drive for about an hour before he needs to stop to take a break due to the pain in his wrists. [AR 347.] The pain in his hands and wrists also causes him trouble when holding dishes, writing, or typing. [AR 350-351.] Plaintiff is able get out of the house once or twice a week, but he otherwise spends most of his time at home watching television. [AR 348-349.] Plaintiff testified that he isolates himself in his room due to his depression for which he takes medication. [AR 353, 492.] B. Legal Standard If a claimant produces objective medical evidence of an underlying impairment that could reasonably be expected to produce the symptoms alleged and there is no affirmative evidence of malingering, the ALJ must offer “clear and convincing” reasons to reject the claimant’s testimony. Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996); see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“Unless there is affirmative evidence showing that the claimant is malingering, the Commissioner’s reasons for rejecting the claimant’s testimony must be clear and convincing.” (internal quotation omitted)). Moreover, “[t]he ALJ must state specifically which symptom testimony is not credible and what facts in the record lead to that conclusion.” Smolen, 80 F.3d at 1284; 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”); Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991). In addition to the “ordinary techniques of credibility evaluation,” Bunnell, 947 F.2d at 346, the following factors may be considered in assessing credibility: (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the claimant’s testimony or between his testimony and conduct; (3) claimant’s daily living activities; (4) claimant’s work record; and (5) testimony from physicians or third parties concerning the nature, severity, and effect of claimant’s condition. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). C. Analysis Here, in addressing Plaintiff’s subjective complaints the ALJ found that “as for the claimant’s statements about the intensity, persistence, and limiting effects of his symptoms, they are not entirely consistent with the weight of the evidence because the record shows resolution of his cervical radiculopathy and hand problems with surgery as well as management of his back and neck pain for long periods of time with medication management provided by his primary care physician.” [AR 184.] Viewing the ALJ’s decision liberally, the ALJ impliedly provided two reasons for finding Plaintiff less credible: (1) Plaintiff’s symptoms resolved with treatment and (2) there was a lack of objective medical evidence to support his complaints. [Def.’s Br. at 7.]; [AR 184.] 1. Resolution with Treatment Generally, the effectiveness of treatment is a relevant factor in determining the severity of a claimant’s symptoms. 20 C.F.R. § 404.1529(c)(3); see Tommasetti v. Astrue, 533 F.3d 1035, 1039-1040 (9th Cir. 2008); Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). Accordingly, substantial evidence of effective treatment may provide a specific, clear, and convincing reason to discount a claimant’s subjective symptom testimony. See Youngblood v. Berryhill, 734 F. App’x 496, 499 (9th Cir. 2018). In summarizing Plaintiff’s treatment history, the ALJ noted that Plaintiff first complained of neck and shoulder pain in September 2014. [AR 181, 665.] In October 2014, an MRI of Plaintiff’s cervical spine showed multilevel degenerative disc disease with moderate to severe spinal canal stenosis at the C6-C7 (base of the neck) level with moderate to severe bilateral neural foraminal stenosis at both levels. [AR 181, 636-637.] In January 2015, Plaintiff was prescribed physical therapy and pain management with a series of cervical epidural pain injections. [AR 184.] Between February and March 2015, Plaintiff underwent three epidural steroid injections without complication. [AR 181.] In March 2015, another MRI showed mild to moderate narrowing in Plaintiff’s spine. Plaintiff was again referred for pain management. [AR 181.] The following month, April 2015, Plaintiff underwent lumbar facet joint and media branch block injections, reporting a 75% improvement in his pain. [AR 181, 550.] However, two months later, Plaintiff visited his primary care physician for opioid pain medication because of complaints of pain. [AR 685- 686.] Over the next year, Plaintiff continued to visit his treating physician monthly for opioid pain medication due to continued complaints of pain. [AR 182, 691, 693.] In November 2015, Plaintiff requested an increase in the dosage of his opioid medication stating that the pills only provided “tolerable relief.” [AR 695.] Thus, despite his injections and treatment with pain medication, Plaintiff’s pain persisted. In June 2016, Plaintiff reported to an orthopedist with continued complaints of neck pain radiating down to his arms. [AR 182.] An MRI taken in July 2016 showed spondyloarthropathy of the mid cervical spine. As a result, his orthopedist recommended surgery and in October 2016 Plaintiff underwent a discectomy at the C5-C7 level. [AR 182.] At his January 2017 surgical aftercare appointment, Plaintiff reported improvement and only mild pain to his orthopedist. [AR 852.] He however continued to complain of weakness in his hands and his orthopedist noted that he would refer Plaintiff to another physician for his low back pain “as Plaintiff “does have evidence of spinal stenosis there and will likely need surgery for that also.” [AR 853.] Between February 2017 and December 2017, Plaintiff continued to seek pain medication from his primary care physician for complaints of ongoing neck and back pain. In December 2017, Plaintiff had another MRI taken of his cervical spine which showed mild degenerative disc disease, mild to moderate bilateral recess, neural foraminal stenosis at the C5-C6 level. [AR 736-738.] A further MRI taken in 2018 revealed degenerative disc disease at the L5-S1 causing “moderate to severe left and mild to moderate right sided neural foraminal stenosis” and a disc bulge causing moderate bilateral neural foraminal stenosis. [AR 182, 849-850.] The Court’s review of the record reveals that while there are some individual records showing Plaintiff’s reports of improvement following treatment, these isolated records do not chart a course of continual improvement, let alone demonstrate one that is sufficiently clear to satisfy standards for discrediting Plaintiff’s credibility. See Garrison v. Colvin, 759 F.3d 995, 1018 (9th Cir. 2014) (“Rather than describe [the claimant’s] symptoms, course of treatment, and bouts of remission, and thereby chart a course of improvement, the ALJ improperly singled out a few periods of temporary well-being from a sustained period of impairment and relied on those instances to discredit [the claimant].”) Instead, the record demonstrates that any limited improvement following Plaintiff’s various treatments was often times short lived and followed by the need for more and increasing pain medication and the need for additional surgery. This is a far cry from effective and proven management of Plaintiff’s symptoms as opined by the ALJ. The ALJ selectively concludes that Plaintiff’s neck and hand problems resolved and that his neck and back pain were managed entirely by pain medication while ignoring ample records indicating that Plaintiff’s symptoms continued or became worse. Further, while the ALJ characterizes Plaintiff’s long periods of pain management as evidence of effective treatment, the record demonstrates that Plaintiff was required to rely on conservative treatment as he lost his insurance and he was awaiting approval for surgery through his government insurance. [AR 667, 684, 689 (Plaintiff “was scheduled for surgery but lost his insurance.”).] Thus, any conclusion that Plaintiff’s pain and symptoms had been effectively treated is based upon an incomplete consideration of the medical record as a whole, and would not be supported by substantial evidence. See Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) (rejecting ALJ’s adverse credibility determination because ALJ did not account for record “as a whole,” but rather relied on “cherry- picked” evidence); Oestman v. Colvin, 2017 U.S. Dist. LEXIS 37349, 2017 WL 10719697, at *2 (C.D. Cal. Mar. 15, 2017) (reversing credibility determination where ALJ “cited to isolated pieces of evidence as support for his conclusions, without giving any indication that he had considered the medical record as a whole”); Vega v. Colvin, 2015 U.S. Dist. LEXIS 61551, 2015 WL 2166596, at *4 (C.D. Cal. May 8, 2015) (reversing credibility determination where ALJ selectively cited records undermining claimant’s allegations). b. Inconsistency with the Objective Medical Evidence The only other reason provided by the ALJ to discount Plaintiff’s credibility was that the objective medical evidence was inconsistent with Plaintiff’s testimony regarding his limitations. [AR 183-184.] It is well-established that an “ALJ may not discredit a claimant’s subjective testimony on” the sole basis that “no objective medical evidence” supports the claimant’s testimony as to “the severity of the subjective symptoms from which he suffers.” Light v. Comm’r of Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). Indeed, “it is the very nature of excess pain to be out of proportion to the medical evidence,” and thus, a finding that a claimant is not credible because his pain testimony is out of proportion to the medical evidence is an “inadequate reason.” Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990). While the lack of medical evidence to support a claimant’s allegations of disabling pain and symptoms “is a factor that the ALJ can consider in his credibility analysis,” it “cannot form the sole basis for discounting pain testimony.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Thus, this reason, on its own, is inadequate to support the ALJ’s adverse credibility determination, because the asserted failure of the medical record to corroborate Plaintiff’s subjective symptom and pain testimony fully is not, by itself, a legally sufficient basis for rejecting such testimony. Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). The ALJ may not make a negative credibility finding “solely because” the claimant’s symptom/pain testimony “is not substantiated affirmatively by objective medical evidence.” Robbins v. Comm’r of Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006); Light, 119 F.3d at 792 (“a finding that the claimant lacks credibility cannot be premised wholly on a lack of medical support for the severity of his pain”); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (“an adjudicator may not reject a claimant’s subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of the [symptoms].”). The ALJ’s only other reason, therefore, is not clear and convincing and cannot save the ALJ’s adverse credibility determination. As there is no basis for finding this error to be harmless, reversal is required. The decision of whether to remand for further proceedings or order an immediate award of benefits is within the district court’s discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). When no useful purpose would be served by further administrative proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Id. at 1179 (“the decision of whether to remand for further proceedings turns upon the likely utility of such proceedings”). But when there are outstanding issues that must be resolved before a determination of disability can be made, and it is not clear from the record the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated, remand is appropriate. Id. A remand for an immediate award of benefits is appropriate “only in rare circumstances.” Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (internal citation omitted). The Court finds that remand is appropriate because the circumstances of this case do not preclude the possibility that further administrative review could remedy the ALJ’s errors. On remand, the Commissioner must re-evaluate Plaintiff’ □ pain/subjective symptom assertions and testimony properly, which in turn may lead to the formulation of a new RFC and the need for additional vocational expert testimony. The Court therefore declines to exercise its discretion to remand for an immediate award of benefits. See 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”); Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district court concludes that further administrative proceedings would serve no useful purpose, it may not remand with a direction to provide benefits.’’). For all of the foregoing reasons, IT IS ORDERED that: (1) the Decision of the Commissioner is REVERSED and this matter REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Memorandum Opinion and Order; and (2) Judgment be entered in favor of Plaintiff. DATED: June 30, 2020 GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE 10