Jesus Gonzalez Garcia v. Martin O'Malley

• Court: District Court, C.D. California
• Decided: March 16, 2021
• Docket: 5:20-cv-00494
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 JESUS G., 1 Case No. 5:20-cv-0494-GJS

12 Plaintiff MEMORANDUM OPINION AND 13 v. ORDER

14 ANDREW SAUL, Commissioner of Social Security, 15 Defendant. 16 17 I. PROCEDURAL HISTORY 18 Plaintiff Jesus G. (“Plaintiff”) filed a complaint seeking review of Defendant 19 Commissioner of Social Security’s (“Commissioner”) denial of his applications for 20 Disability Insurance Benefits and Supplemental Security Income (“SSI”). The 21 parties filed consents to proceed before the undersigned United States Magistrate 22 Judge [Dkts. 11, 12] and briefs addressing disputed issues in the case [Dkt. 18 23 (“Pltf.’s Br.”), Dkt. 21 (“Def.’s Br.”), and Dkt. 22 (Pltf.’s Reply”).] The Court has 24 taken the parties’ briefing under submission without oral argument. For the reasons 25 discussed below, the Court finds that this matter should be remanded for further 26 27 1 In the interest of privacy, this Order uses only the first name and the initial of 28 the last name of the non-governmental party. 1 2 II. ADMINISTRATIVE DECISION UNDER REVIEW 3 Plaintiff filed applications for DIB and SSI alleging that he became disabled 4 as of November 24, 2010. [Dkt. 16, Administrative Record (“AR”) 21, 272-280.] 5 Plaintiff’s applications were denied initially, on reconsideration, and after a hearing 6 before Administrative Law Judge (“ALJ”) Clary Simmonds [AR 1-6, 19-33.] 7 Applying the five-step sequential evaluation process, the ALJ found that 8 Plaintiff was not disabled. See 20 C.F.R. §§ 416.920(b)-(g)(1). At step one, the 9 ALJ concluded that Plaintiff has not engaged in substantial gainful activity since 10 November 24, 2010, the onset date. [AR 21 (citing 20 C.F.R. § 416.971).] At step 11 two, the ALJ found that Plaintiff suffered from the following severe impairments: 12 degenerative disc disease of the lumbar spine; degenerative disc disease of the 13 cervical spine with stenosis; cervical radiculopathy; right shoulder tendonitis and 14 small partial rotator cuff tear; bilateral shoulder impingement; neuropathy; and 15 arthritis of the bilateral hips. Next, the ALJ determined that Plaintiff did not have an 16 impairment or combination of impairments that meets or medically equals the 17 severity of one of the listed impairments. [AR 25 (citing 20 C.F.R. Part 404, 18 Subpart P, Appendix 1; 20 C.F.R. §§ 416.920(d), 416.925, and 416.926.] 19 The ALJ found that Plaintiff had the residual functional capacity (RFC) to 20 perform a limited range of sedentary work except: 21 he can lift, carry, push or pull up to 10 pounds 22 occasionally and less than 10 pounds frequently; can stand 23 or walk for four hours in an eight-hour workday and sit for six hours in an eight-hour workday; can occasionally 24 climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; can never climb ladders, ropes or scaffolds; would 25 require an assistive device for all ambulation; can frequently reach in any direction including overhead; can 26 frequently handle and finger with the bilateral upper 27 extremities; and can perform work that does not require exposure to uneven terrain; or to hazards such as moving 28 machinery or unprotected heights. 1 [AR 25.] Applying this RFC, the ALJ found that Plaintiff could not return to his 2 past relevant work, but as a younger individual with limited education and English 3 speaking abilities, he could perform other work in the national economy and, thus, is 4 not disabled. [AR 32.] 5 III. GOVERNING STANDARD 6 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 7 determine if: (1) the Commissioner’s findings are supported by substantial evidence; 8 and (2) the Commissioner used correct legal standards. See Carmickle v. Comm’r 9 Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 10 1071, 1074 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 11 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 12 Perales, 402 U.S. 389, 401 (1971) (internal citation and quotations omitted); see 13 also Hoopai, 499 F.3d at 1074. The Court will uphold the Commissioner’s decision 14 when the evidence is susceptible to more than one rational interpretation. Burch v. 15 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only 16 the reasons stated by the ALJ in his decision “and may not affirm the ALJ on a 17 ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 18 2007). 19 IV. DISCUSSION 20 The single issue raised by Plaintiff is whether the ALJ failed to state sufficient 21 reasons for discounting his subjective symptom testimony. [Pltf.’s Br. at 5-15.] 22 In November 2015, Plaintiff authored a function report where he reported an 23 inability to squat, kneel, or climb stairs. [AR 355.] Plaintiff reported being able to 24 lift up to 15 pounds from the waist to face level, but that he cannot comfortably 25 carry more than ten pounds. [AR 355.] During the day, he performs light 26 housework and he supervises his young daughter while she does her homework. 27 [AR 356.] His girlfriend, who works a night shift, “does all basic care for [their] 28 1 2 as hot dogs, sandwiches, and noodles, for himself and his daughter, but he can no 3 longer prepare big meals. [AR 357.] Plaintiff goes out alone and he waters his yard 4 daily. He can drive a car and goes shopping twice per month. [AR 358.] 5 At the June 2017 hearing, Plaintiff testified that he suffers from neck pain, 6 back pain, and weakness in his legs and arms. [AR 57.] Plaintiff also experiences 7 hip pain and stiffness. [AR 56, 57.] His pain stems from work related injuries where 8 he fell backwards injuring his back. [AR 58.] Upon questioning from his attorney, 9 Plaintiff testified that he has used a cane to ambulate for approximately three years. 10 [AR 56.] Although the cane was not initially prescribed by a doctor, his doctors 11 were aware that he is using the cane and they did not object to its use. [AR 56.] 12 Plaintiff also regularly wears a back brace. [AR 57.] For his pain, Plaintiff takes 13 narcotic pain medication and he receives injections in his spine and neck 14 approximately every five months. [AR 61.] When asked about his daily activities, 15 Plaintiff explained that he has a hard time carrying objects. [AR 66.] Plaintiff 16 testified that he cannot lift anything and he cannot carry anything. [AR 65.] His 17 daughter and her mom help carry groceries to the car. [AR 66.] He has a difficult 18 time with stairs and uses a cane to walk up the four steps at the entryway of his 19 mobile home. [AR 66.] Plaintiff testified that he cannot stand for longer than two 20 minutes at a time before he starts experiencing pain in his feet and back. [AR 68.] 21 During the day, he does not lay down much, rather he alternates between sitting on 22 the couch and standing. [AR 69.] 23 Because there is no allegation of malingering and the ALJ found that 24 “claimant’s medically determinable impairments could reasonably be expected to 25 cause the alleged symptoms” [AR 26], the ALJ’s reasons must be clear and 26 convincing. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). Even if 27 “the ALJ provided one or more invalid reasons for disbelieving a claimant’s 28 testimony,” if he “also provided valid reasons that were supported by the record,” 1 2 supporting the ALJ’s decision and the error does not negate the validity of the ALJ’s 3 ultimate conclusion.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) 4 (internal quotation omitted). 5 Here, the ALJ gave two clear reasons to reject Plaintiff’s credibility: (1) 6 inconsistencies between Plaintiff’s testimony and his daily activities; and (2) 7 inconsistencies between the objective medical evidence and Plaintiff’s allegations of 8 pain limitations. The ALJ also implied a third reason: that Plaintiff’s use of a cane 9 that was “not medically necessary” and without a prescription further demonstrated 10 that Plaintiff’s subjective complaints were inconsistent with the medical evidence. 11 The Court takes each in turn. 12 First, the ALJ found that Plaintiff’s reported daily activities are not entirely 13 consistent with his allegations of subjective symptoms/pain. [AR 26.]. An ALJ 14 may rely on “testimony about the claimant’s daily activities” to “discredit an 15 allegation of pain.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). There are 16 “two grounds for using daily activities to form the basis of an adverse credibility 17 determination:” (1) where the plaintiff’s testimony contradicts his activities of daily 18 living; and (2) where the activities of daily living meet “the threshold for 19 transferable work skills.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). But 20 “[t]he ALJ must make ‘specific findings relating to [the daily] activities’ and their 21 transferability to conclude that a claimant’s daily activities warrant an adverse 22 credibility determination.” Orn, 495 F.3d at 639 (internal quotation marks and 23 citation omitted). Id. (quoting Burch, 400 F.3d at 681). The Ninth Circuit has 24 cautioned that a plaintiff need not be “utterly incapacitated” to be disabled. Fair, 25 885 F.2d at 603. “[T]he mere fact that a plaintiff has carried on certain daily 26 activities, such as grocery shopping, driving a car, or limited walking for exercise, 27 does not in any way detract from her credibility as to his overall disability.” 28 Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001). Some activities, such as 1 2 impact of pain” because a plaintiff “may do these activities despite pain for 3 therapeutic reasons.” Id. “[T]hat does not mean she could concentrate on work 4 despite the pain or could engage in similar activity for a longer period given the pain 5 involved.” Id. 6 Here the ALJ noted that Plaintiff’s daily activities include “making meals for 7 his daughter, watering the plants, washing dishes, driving, shopping in stores, going 8 out alone, taking his daughter to and from school, going to doctors’ appointments, 9 and spending time with others and his family.” [AR 26.] The ALJ stated that these 10 activities were “specifically inconsistent with claimant’s allegation that he had 11 difficulty lifting, standing, walking, sitting, squatting, bending, standing, reaching, 12 kneeling, climbing, following instructions, using hands, concentrating, 13 understanding, and memorizing. [AR 26.] Although the ALJ lists potential 14 inconsistencies, the ALJ fails to explain how these daily activities contradict 15 Plaintiff’s testimony or established that he can work. 16 In fact, the ALJ does not make any specific findings regarding Plaintiff’s 17 daily activities. Rather, the ALJ merely summarized the activities that Plaintiff 18 testified about performing and summarized Plaintiff’s alleged impairments. It is not 19 apparent from the record how Plaintiff’s statements regarding the minimal activities 20 that he can perform inside and outside the home to take care of himself conflict with 21 Plaintiff’s allegedly disabling symptomology. “[T]he mere fact that a plaintiff has 22 carried on certain daily activities, such as grocery shopping, driving a car, or limited 23 walking for exercise, does not in any way detract from h[is] credibility as to h[is] 24 overall disability.” Vertigan v. Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001). 25 Further, “many home activities are not easily transferable to what may be the more 26 grueling environment of the workplace, where it might be impossible to periodically 27 rest or take medication.” Fair, 885 F.2d at 603; Garrison v. Colvin, 759 F.3d 995, 28 1016 (9th Cir. 2014) (“We have repeatedly warned that ALJs must be especially 1 2 pain, because impairments that would unquestionably preclude work and all the 3 pressures of a workplace environment will often be consistent with doing more than 4 merely resting in bed all day.”). Thus, the record fails to show that Plaintiff’s 5 asserted home activities are inconsistent with his allegedly disabling symptomology. 6 Second, the parties raise the ALJ’s discussion of Plaintiff’s use of a cane 7 without a prescription as a credibility factor. According to the parties, the ALJ 8 rejected Plaintiff’s credibility, in part, because he used a cane to walk that was 9 neither prescribed nor medically necessary. (Pltf.’s Br. at 11-12; Def’s Br. at 3.) It 10 is unclear from the decision whether the ALJ intended this to be an independent 11 reason for doubting Plaintiff’s subjective complaints, as the ALJ concludes the cane 12 discussion by stating that Plaintiff’s “ability to ambulate [is] inconsistent with the 13 objective medical evidence.” [AR 27.] Thus, it appears that the ALJ intended her 14 statement regarding Plaintiff’s use of a cane as an explanatory reason why Plaintiff’s 15 allegations were inconsistent with the objective medical evidence. Nonetheless, 16 Plaintiff contends that the ALJ’s reliance on his use of a cane without a prescription 17 to undermine his credibility was error. Specifically, Plaintiff argues that “just 18 because he was not initially prescribed a cane does not mean that he does not need 19 one.” (Pltf.’s Br. at 11.) Moreover, Plaintiff contends that he obtained a 20 prescription for a cane in March 2019, a few weeks after the ALJ issued the 21 February 2019 unfavorable decision. (Pltf.’s Br. at 11.). The Commissioner 22 responds that “an ALJ appropriately considers whether the claimant uses an 23 assistive device despite a lack of medical necessity.” See Chaudry v. Astrue, 688 24 F.3d 661, 671 (9th Cir. 2012) (claimant’s non-prescribed use of a wheelchair and 25 unwarranted use of a cane also factored into the ALJ’s determination that 26 [claimant’s] subjective expression of his limitations lacked credibility.”). 27 The Commissioner’s reliance on Chaudry is misplaced. There, the Ninth 28 Circuit determined that the unprescribed and unwarranted use of an assistive device 1 2 Chaudry, the ALJ found that the Plaintiff’s continued use of a cane undermined his 3 credibility because the Plaintiff-claimant’s physicians specifically advised him to 4 stop using his non-prescribed cane as “long term use of the cane [would] further 5 encourage pain and disabled behaviors.” Chaudhry, 688 F.3d at 664. In affirming 6 the ALJ’s adverse credibility determination, the Ninth Circuit held that Plaintiff’s 7 continued use of a cane against his physicians’ recommendations demonstrated his 8 failure to follow the advice of providers which itself undermined Plaintiff’s 9 credibility. Id. at 672. The present case is therefore unlike Chaudry. 10 Here, although Plaintiff’s cane was not initially prescribed, Plaintiff’s medical 11 records confirm that his physicians repeatedly noted the use of a cane without 12 objection. [See AR 758 (“cane”), 863 (“cane dependent”), 906 (“antalgic gait with 13 the use of a cane”.) Further, despite the ALJ’s uncertainty about whether Plaintiff’s 14 cane was medically necessary, the ALJ ultimately “incorporated the use of a cane in 15 [Plaintiff’s] RFC” which suggests that the ALJ considered that the need for a cane 16 was more than theoretical. [AR 27.] Moreover, in establishing that his cane is 17 medically necessary, Plaintiff points to evidence throughout the record of 18 measurable muscle atrophy in his legs, as noted by the consultative examiner who 19 measured a five-centimeter difference in size between Plaintiff’s right thigh and left 20 thigh (41 cm/46 cm, respectively), and his later acquired prescription for the use of a 21 cane. [AR 711.] 22 Thus, because it is not entirely clear that the ALJ intended her discussion of 23 Plaintiff’s use of a cane to be an additional reason (beyond inconsistency with the 24 objective medical evidence) to discount Plaintiff’s credibility, and there is at least 25 some medical evidence supporting his need for a cane, the Court does not find this a 26 sufficiently clear or convincing reason supporting the credibility determination. See, 27 e.g., Saunders v. Astrue, 433 F. App’x 531, 534 (9th Cir. 2011) (ALJ’s observation 28 that claimant wore a brace and used a cane when “no treating physician had 1 2 testimony). 3 Lastly, the ALJ concluded that the objective medical evidence was 4 inconsistent with Plaintiff’s testimony regarding his limitations. [AR 26-27.] It is 5 well established that an “ALJ may not discredit a claimant’s subjective testimony 6 on” the sole basis that “no objective medical evidence” supports the claimant’s 7 testimony as to “the severity of the subjective symptoms from which he suffers.” 8 Light v. Comm’r of Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). Indeed, “it 9 is the very nature of excess pain to be out of proportion to the medical evidence,” 10 and thus, a finding that a claimant is not credible because his pain testimony is out 11 of proportion to the medical evidence is an “inadequate reason.” Gonzalez v. 12 Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990). While the lack of medical evidence 13 to support a claimant’s allegations of disabling pain and symptoms “is a factor that 14 the ALJ can consider in his credibility analysis,” it “cannot form the sole basis for 15 discounting pain testimony.” Burch, 400 F.3d at 681. 16 Thus, this reason, on its own, is inadequate to support the ALJ’s adverse 17 credibility determination, because the asserted failure of the medical record to 18 corroborate Plaintiff’s subjective symptom and pain testimony fully is not, by itself, 19 a legally sufficient basis for rejecting such testimony. Rollins v. Massanari, 261 20 F.3d 853, 856 (9th Cir. 2001). The ALJ may not make a negative credibility finding 21 “solely because” the claimant’s symptom/pain testimony “is not substantiated 22 affirmatively by objective medical evidence.” Robbins v. Comm’r of Soc. Sec. 23 Admin., 466 F.3d 880, 883 (9th Cir. 2006); Light, 119 F.3d at 792 (“a finding that 24 the claimant lacks credibility cannot be premised wholly on a lack of medical 25 support for the severity of his pain”); Bunnell v. Sullivan, 947 F.2d at 345 (“an 26 adjudicator may not reject a claimant’s subjective complaints based solely on a lack 27 of objective medical evidence to fully corroborate the alleged severity of the 28 [symptoms].”). The ALJ’s last reason, therefore, is not clear and convincing and 1 2 Accordingly, as there is no basis for finding the ALJ’s error to be harmless, 3 reversal is required. 4 V. CONCLUSION 5 The decision of whether to remand for further proceedings or order an 6 immediate award of benefits is within the district court’s discretion. Harman v. 7 Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). When no useful purpose would be 8 served by further administrative proceedings, or where the record has been fully 9 developed, it is appropriate to exercise this discretion to direct an immediate award 10 of benefits. Id. at 1179 (“the decision of whether to remand for further proceedings 11 turns upon the likely utility of such proceedings”). But when there are outstanding 12 issues that must be resolved before a determination of disability can be made, and it 13 is not clear from the record the ALJ would be required to find the claimant disabled 14 if all the evidence were properly evaluated, remand is appropriate. Id. A remand 15 for an immediate award of benefits is appropriate “only in rare circumstances.” 16 Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (internal citation 17 omitted). 18 The Court finds that remand is appropriate because the circumstances of this 19 case do not preclude the possibility that further administrative review could remedy 20 the ALJ’s errors. On remand, the Commissioner must re-evaluate Plaintiff’s 21 pain/subjective symptom assertions and testimony properly, which in turn may lead 22 to the formulation of a new RFC and the need for additional vocational expert 23 testimony. The Court therefore declines to exercise its discretion to remand for an 24 immediate award of benefits. See INS v. Ventura, 537 U.S. 12, 16 (2002) (upon 25 reversal of an administrative determination, the proper course is remand for 26 additional agency investigation or explanation, “except in rare circumstances”); 27 Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district court 28 concludes that further administrative proceedings would serve no useful purpose, it 1 || may not remand with a direction to provide benefits.”’). 2 For all of the foregoing reasons, IT [IS ORDERED that: 3 (1) the Decision of the Commissioner is REVERSED and this matter 4 REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further 5 administrative proceedings consistent with this Memorandum Opinion and 6 Order; and 7 (2) Judgment be entered in favor of Plaintiff. 8 9 IT IS SO ORDERED. 10 11 |} DATED: March 16, 2021 12 / GAIL J. STANDISH 13 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11