Candice Chavez v. Nancy A. Berryhill

• Court: District Court, C.D. California
• Decided: November 8, 2019
• Docket: 2:18-cv-09582
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CANDICE C.,1 Case No. 2:18-cv-09582-AFM 12 Plaintiff, MEMORANDUM OPINION AND 13 v. ORDER REVERSING AND 14 ANDREW SAUL, Commissioner of REMANDING DECISION OF THE 15 Social Security, COMMISSIONER 16 Defendant. 17 Plaintiff filed this action seeking review of the Commissioner’s final decision 18 denying her application for Social Security Child Insurance Benefits. In accordance 19 with the Court’s case management order, the parties have filed memorandum briefs 20 addressing the merits of the disputed issues. The matter is now ready for decision. 21 I. BACKGROUND 22 On February 9, 2015, Plaintiff applied for Supplemental Security Income. 23 (Administrative Record (“AR”) 243-251.) On August 28, 2015, Plaintiff applied for 24 Social Security Child Insurance Benefits, alleging disability since January 1, 1990. 25 26

1 Plaintiff’s name has been partially redacted in accordance with Federal Rule of Civil Procedure 27 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 1 (AR 252-255.) After an initial denial of the applications on July 8, 2015, Plaintiff 2 filed a written request for hearing on September 3, 2015. (AR 125-129, 134-136). 3 Only Plaintiff’s sister was able to testify on the date initially set for the hearing 4 (August 17, 2017) because Plaintiff needed time to find new representation. On 5 December 14, 2017, Plaintiff and her new attorney appeared before the 6 Administrative Law Judge (“ALJ”). (AR 38-77.) This hearing also included the 7 testimony of a vocational expert (“VE”) and a medical expert (“ME”). 8 The ALJ issued a partially favorable decision. (AR 12-37.) The ALJ foundthat 9 Plaintiff had the following severe impairments: mild degenerative disc disease of the 10 lumbar spine, major depressive disorder, generalized anxiety disorder, and borderline 11 intellectual functioning. (AR 20). These impairments rendered Plaintiff disabled 12 beginning March 1, 2017, thereby qualifying Plaintiff for supplemental security 13 income.However, because Plaintiff had attained the age of 22 prior to the determined 14 onset date, she was not entitled to child insurance benefits. The Appeals Council 15 subsequently denied review, rendering the ALJ’s decision final. (AR 1-6). 16 II. DISPUTED ISSUES 17 1. Whether the ALJ properly discounted Plaintiff’s subjective symptom 18 testimony. 19 2. Whether the ALJ erred in determining that prior to March 1, 2017, Plaintiff 20 couldperform jobs existing in significant numbers in the national economy. 21 III. STANDARD OF REVIEW 22 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 23 determine whether the Commissioner’s findings are supported by substantial 24 evidence and whether the proper legal standards were applied. See Treichler v. 25 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial 26 evidence means “more than a mere scintilla” but less than a preponderance. See 27 Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). The Court reviews the record as a whole, weighing both 1 the evidence that supports and the evidence that detracts from the Commissioner’s 2 conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more 3 than one rational interpretation, the Commissioner’s decision must be upheld. See 4 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Batson v. Comm’r of Soc. Sec. 5 Admin., 359 F.3d 1190, 1196 (9th Cir. 2004) (“When evidence reasonably supports 6 either confirming or reversing the ALJ’s decision, [the court] may not substitute [its] 7 judgment for that of the ALJ.”). 8 IV. DISCUSSION 9 Plaintiff does not dispute the ALJ’s summary of her testimony and her alleged 10 impairments as described below: 11 She did not have a walker at this hearing. She stated that she was 12 not working and had never worked. She asserted that she had never 13 looked for work due to being uncomfortable around others. She alleged 14 that she had never used alcohol or drugs, other than those medically 15 prescribed. She stated that she was 34 years of age and had completed 16 the twelfth grade. She stated that she had been involved in special 17 education throughout her schooling and had an individualized education 18 program, involving resource specialist program (RSP) and speech 19 therapy. She stated that she was able to read a children’s book and write 20 at a similar level. She reported that after graduating high school, she 21 lived with her father and spent most of her time in her room watching 22 television. The claimant stated that she lived alone, but her sister visited 23 her on a daily basis to assist her with many basic activities of daily 24 living. She stated that she had a dog at her home, but her sister cleaned 25 after the dog. She alleged that she would lose focus after watching 26 television for 5 minutes. She asserted that she had difficulty getting 27 ready in the morning and needed frequent reminders from her sister in regard to activities of daily living. 1 The claimant alleged that she was depressed and anxious. She 2 reported having focus and concentration deficits, paranoia, and difficult 3 learning. She alleged that she gave her best effort at the consultative 4 examinations. She indicated having had depressive and anxiety 5 symptoms since childhood, approximately since age 12. She asserted 6 that she had previously received psychological treatment, but she did 7 not remember her last visit. She reported taking Prozac, Xanax, and an 8 unspecified sleep medication. She alleged taking Xanax on an as needed 9 basis, taking it once per day due to panic attacks. She also reported 10 taking pain medications for back and knee pain. The claimant reported 11 having six children, ages ranging from 2 to 14. She alleged that she lost 12 custody of her children due to her mental health issues. She stated that 13 four of her children lived with their father and two of the children lived 14 with their grandmother. She reported having visitation rights to her 15 children and seeing them at the park. The claimant alleged that she had 16 tried drinking alcohol on one occasion[], but essentially denied alcohol 17 use otherwise. She stated that physical therapy had helped her low back 18 pain and she no longer used a walker. 19 (AR 23.) 20 Plaintiff also reported at a medical examination in 2015 that she could take 21 care of her basic grooming and hygiene needs and make simple meals, but that she 22 had some difficulty with completing household tasks, making daily decisions, and 23 planning her daily activities. (AR 982-983.) While Plaintiff was able to walk or be 24 driven by others for transportation, she was not able to go out alone and spent most 25 of her days playing with her children and watching television. (AR 982-983.) 26 Before her twenty-second birthday, Plaintiff received counseling services at 27 Kaiser Permanente on several occasions in 2003 and 2004. (AR 486.) This counseling may have resulted in a visit to a psychiatrist. (AR 486.) There is also 1 evidence that shows Plaintiff was assigned psychiatric appointments in 2005. (AR 2 559-573.) It is unclear how many appointments were attended, if any. A document 3 from 2004 relating to the care of Plaintiff’s children indicates she was responsible 4 for getting a psychiatric evaluation. (AR 831-832.) Again, the record is unclear 5 whether this resulted in evaluation or treatment. However, Plaintiff was prescribed 6 Prozac in 2003 and Xanax some time after and has remained on those prescriptions 7 since. (AR 24, 634-635.) 8 From her twenty-second birthday at the end of 2005 until the beginning of 9 2015, Plaintiff’s treatment appears to have continued under nurse practitioners or 10 physician assistants. (AR 483, 648, 660, 664.) The medical records indicate that 11 Plaintiff’s conditions were primarily treated with Prozac and Xanax. There is also 12 evidence indicating a tendency to miss medical appointments. (AR 481, 670-671, 13 674, 677-678, 680, 683-684, 686-689, 691-692, 694, 699-700.) Medical recordsfrom 14 November of 2009 and December of 2010 show that it was repeatedlyrecommended 15 that Plaintiff see a psychiatrist but noted that Plaintiff had not yet seen one. (AR 475, 16 648.) 17 When, as here, a claimant “has presented objective medical evidence of an 18 underlying impairment which could reasonably be expected to produce the pain or 19 other symptoms alleged,” and there is “no evidence of malingering,” the ALJ must 20 provide “specific, clear and convincing reasons” before rejecting a claimant’s 21 testimony aboutthe severity of theirsymptoms.Vasquez v. Astrue, 572 F.3d 586, 591 22 (9th Cir. 2009) (internal quotations and citations omitted); see also Leon v. Berryhill, 23 880 F.3d 1041, 1046 (9th Cir. 2018); Diedrich v. Berryhill, 874 F.3d 634, 641 (9th 24 Cir. 2017); Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017); Smolen v. Chater, 25 80 F.3d 1273, 1281 (9th Cir. 1996). A rejection consisting of only “[g]eneral 26 findings”will not satisfy the analysis;instead,the ALJ must “identify what testimony 27 is not credible and what evidence undermines the claimant’s complaints.” Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010) (internal quotations and citation 1 omitted); see also Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). Furthermore, 2 the ALJ’s findings “‘must be sufficiently specific to allow a reviewing court to 3 conclude the adjudicator rejected the claimant’s testimony on permissible grounds 4 and did not arbitrarily discredit a claimant’s testimony regarding pain.’” Brown- 5 Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (quoting Bunnell v. Sullivan, 947 6 F.2d 341, 345-346 (9th Cir. 1991)). The ALJ’s findings can be supported by the 7 objective medical evidence, the claimant’s treatment history, the claimant’s daily 8 activities, unexplained failure to pursue or follow treatment, and inconsistencies in 9 testimony. See Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014); Molina v. 10 Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). 11 The ALJ found that, although Plaintiff’s symptoms could reasonably be 12 expected from her medically determinable impairments, her testimony regarding 13 those symptoms was not fully supported by the evidenceprior to March 1, 2017. (AR 14 23.) The ALJ provided three reasons for his credibility determination – specifically, 15 Plaintiff’s subjective testimony (1) was not fully supported by the objective medical 16 evidence; (2) was inconsistent with Plaintiff’s conservative treatment; and (3) was 17 inconsistent with Plaintiff’s daily activities. (AR 21, 24-29.) 18 A. Lack of Objective Evidence 19 Plaintiff does not argue that the ALJ erred in relying on the lack of objective 20 medical evidence to support his credibility determination. (See ECF No. 24 at 8-9.) 21 However, as Plaintiff points out, an ALJ cannot disregard a claimant’s testimony 22 solely because it is not substantiated by objective medical evidence. See 20 C.F.R. 23 §404.1529(c)(2); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). 24 Plaintiff therefore argues that the ALJ’s other two reasons were inadequate. 25 B. Conservative Treatment 26 An ALJ may discredit testimony if it is contradicted by evidence of 27 conservative treatment. See Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995); see also Gray v. Comm’r of Soc. Sec. Admin., 365 F. App’x 60, 63 (9th Cir. 2010); 1 Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007). However, the Ninth Circuit has 2 “particularly criticized” the use of the conservative treatmentrationale with claimants 3 who have mental health issues because “mental illness is notoriously underreported 4 and because ‘it is a questionable practice to chastise one with a mental impairment 5 for the exercise of poor judgment in seeking rehabilitation.’” Regennitter v. Comm’r 6 of Soc. Sec. Admin., 166 F.3d 1294, 1299-1300 (9th Cir. 1999) (quoting Van Nguyen 7 v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (internal quotation and citation 8 omitted)). 9 Plaintiff contends that the ALJ has failed to cite evidence of her only receiving 10 conservative treatment and that no nonconservative treatment has been shown to be 11 available for her condition. (See ECF No. 24 at 12.) The ALJ referred to evidence 12 concerning Plaintiff’s Zoloft and Xanax use and stated that use of these drugs are 13 “routine” and part of Plaintiff’s conservative treatment. (AR 26, 28.) However, he 14 failed to explain why this is routine or conservative or what more aggressive 15 treatment was available and appropriate for Plaintiff. Moreover, Plaintiff’s 16 depression and anxiety are the type of conditions that may impair judgment. In these 17 circumstances, the Court follows the Ninth Circuit’s concerns about holding a person 18 with mental impairments responsible for not seeking additional and more aggressive 19 treatment. See Wake v. Comm’r of Soc. Sec., 461 F. App’x 608, 609 (9th Cir. 2011); 20 Regennitter, 166 F.3d at 1299-1300; see also Van Nguyen, 100 F.3d at 1465 (those 21 afflicted with depression often do not recognize the seriousness of the disease); 22 Christina S. v. Berryhill, 2018 WL 6428077, at *5 (D. Or. Dec. 7, 2018) (“anxiety 23 contributed to Plaintiff’s discontinuation of counseling.”). Therefore, the ALJ’s 24 reference to Plaintiff’s treatment as conservative is not a clear and convincing reason 25 for discounting Plaintiff’s testimony. See Garcia v. Colvin, 2016 WL 3268861, at *8 26 (C.D. Cal. June 6, 2016). 27 1 C. Plaintiff’s Daily Activities 2 An ALJ may discredit testimony when the claimant takes part in everyday 3 activities that indicate capabilities that are “transferable to a work setting.” Morgan 4 v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). Even if a 5 claimant’s activities suggestlimitedfunctionality in the work place, evidence ofdaily 6 activities may be a valid basis to discredit the claimant’s testimony“to the extent that 7 [the activities] contradict claims of a totally debilitating impairment.” Molina, 674 8 F.3d at 1104. Notably, however, “ALJs must be especially cautious in concluding 9 that daily activities are inconsistent with testimony about pain, because impairments 10 that would unquestionably preclude work and all the pressures of a workplace 11 environment will often be consistent with doing more than merely resting in bed all 12 day.” Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014). 13 Here, the ALJ’s decision runs afoul of this controlling authority by doing 14 nothing more than stating the “non-credibility conclusion and then summariz[ing] 15 the . . . evidence.” Brown-Hunter, 806 F.3d at 494. That is insufficient. It is not the 16 Court’s role to complete the ALJ’s analysis but instead to “‘review the reasons the 17 ALJ asserts.’” Id. The ALJ’s decision must identify the specific testimony found not 18 to be fully credible and link it with the specific evidence in the record that supports 19 that finding. Id. This requires the ALJ to “provide some reasoning in order for [the 20 Court] to meaningfully determine whether the ALJ’s conclusions were supported by 21 substantial evidence.” Brown-Hunter, 806 F.3d at 495 (citation omitted). That has 22 not occurred here, and accordingly, the ALJ’s reliance on daily activity is not an 23 adequate basis for discounting Plaintiff’s testimony. 24 *********** 25 In sum, the ALJ failed to provide a clear and convincing reason to support the 26 decision to discredit Plaintiff’s subjective complaints. Given the significant 27 functional limitations reflected in Plaintiff’s subjective statements, the Court cannot “confidently conclude that no reasonable ALJ, when fully crediting the [plaintiff’s] 1 testimony, could have reached a different disability determination.” Stout v. Comm’r, 2 Soc. Sec. Admin., 454 F.3d 1050, 1055-1056 (9th Cir. 2006).2 Thus, this error was 3 not harmless because it could have changed the ALJ’s conclusion regarding 4 disability. See Brown-Hunter, 806 F.3d at 492 (ALJ’s failure adequately to specify 5 reasons for discrediting claimant’s testimony “will usually not be harmless”). 6 V. REMEDY 7 “When the ALJ denies benefits and the court finds error, the court ordinarily 8 must remand to the agency for further proceedings before directing an award of 9 benefits.”Leon, 880 F.3dat1045. Indeed, Ninth Circuit case law “precludes a district 10 court from remanding a case for an award of benefits unless certain prerequisites are 11 met.” Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2016) (citations omitted). 12 “The district court must first determine that the ALJ made a legal error, such as failing 13 to provide legally sufficient reasons for rejecting evidence. . . . If the court finds such 14 an error, it must next review the record as a whole and determine whether it is fully 15 developed, is free from conflicts and ambiguities, and all essential factual issues have 16 been resolved.” Id. (citation and internal quotation marks omitted). 17 Although the Court has found error as discussed above, the record on the whole 18 is not fully developed and factual issues remain outstanding. The issues concerning 19 Plaintiff’s alleged disability “should be resolved through further proceedings on an 20 open record before a proper disability determination can be made by the ALJ in the 21 first instance.” See Brown-Hunter, 806 F.3d at 496; see also Treichler, 775 F.3d at 22 1101 (remand for award of benefits is inappropriate where “there is conflicting 23 evidence, and not all essential factual issues have been resolved”) (citation omitted); 24 Strauss v. Comm’r of Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011) (same 25 2 In light of the Court’s finding with regard to the credibility issue, it does notaddress the remaining 26 issue raised by Plaintiff. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we 27 remand the case to the ALJ for the reasons stated, we decline to reach [Plaintiff’s] alternative ground for remand.”). 1 || where the record does not clearly demonstrate the claimant is disabled within the 2 || meaning of the Social Security Act). 3 Accordingly, the appropriate remedy is a remand for further administrative 4 || proceedings pursuant to sentence four of 42 U.S.C. § 405(g). It is not the Court’s 5 || intent to limit the scope of the remand. 6 ORDER 7 IT IS THEREFORE ORDERED that judgment be entered reversing the 8 || decision of the Commissioner of Social Security and remanding this matter for 9 || further administrative proceedings consistent with this opinion. 10 11 || DATED: 11/8/2019 12 (hy Wox 13 ALEXANDER F. MacKINNON 1 UNITED STATES MAGISTRATE JUDGE

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