Laureen May Ralls v. Nancy A. Berryhill

• Court: District Court, C.D. California
• Decided: August 12, 2019
• Docket: 5:18-cv-02197
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LAUREEN MAY RALLS, CASE NO. ED CV 18-2197 AS 12 Plaintiff, MEMORANDUM OPINION 13 v. AND ORDER OF REMAND 14 ANDREW M. SAUL, Commissioner

of Social Security,1 15 Defendant. 16 17 For the reasons discussed below, IT IS HEREBY ORDERED that, 18 pursuant to Sentence Four of 42 U.S.C. § 405(g), this matter is 19 remanded for further administrative action consistent with this 20 Opinion. 21 22 PROCEEDINGS 23 24 On October 16, 2018, Plaintiff filed a Complaint seeking 25 review of the denial of her application for Disability Insurance 26 1 Andrew M. Saul, Commissioner of Social Security, is 27 substituted for his predecessor. See 42 U.S.C. § 405(g); Fed. R. Civ. P. 25(d). 28 1 Benefits. (Dkt. No. 1). The parties have consented to proceed 2 before the undersigned United States Magistrate Judge. (Dkt. Nos. 3 9-11). On March 25, 2019, Defendant filed an Answer along with 4 the Administrative Record (“AR”). (Dkt. Nos. 17-18). The parties 5 filed a Joint Stipulation (“Joint Stip.”) on July 24, 2019, setting 6 forth their respective positions regarding Plaintiff’s claims. 7 (Dkt. No. 21). 8 9 BACKGROUND AND SUMMARY OF ADMINISTRATIVE RECORD 10 11 On March 28, 2014, Plaintiff filed an application for 12 Disability Insurance Benefits (“DIB”) pursuant to Title II of the 13 Social Security Act (the “Act”) alleging a disability onset date 14 of September 18, 2008. (AR 83, 172). The Commissioner denied 15 Plaintiff’s application initially and on reconsideration. (AR 72- 16 97). On February 28, 2017, Plaintiff, represented by counsel, 17 testified at a hearing before Administrative Law Judge Laura 18 Fernandez (the “ALJ”). (AR 38-71). The ALJ also heard testimony 19 from Gregory S. Jones, an impartial vocational expert (“VE”). (AR 20 64-69; see id. 238-40). 21 22 On July 3, 2017, the ALJ denied Plaintiff’s request for 23 benefits. (AR 15-25). Applying the five-step sequential process, 24 the ALJ found at step one that Plaintiff has not engaged in 25 substantial gainful activity from September 18, 2008, her alleged 26 onset date, through December 31, 2013, her date last insured. (AR 27 17). At step two, the ALJ found that through the date last insured, 28 Plaintiff’s irritable bowel syndrome, osteoporosis, cervical spine

2 1 degenerative disc disease, depressive disorder, and anxiety 2 disorder were severe impairments.2 (AR 17). At step three, the 3 ALJ determined that through the date last insured, Plaintiff did 4 not have an impairment or combination of impairments that met or 5 medically equaled the severity of any of the listings enumerated 6 in the regulations.3 (AR 18). 7 8 The ALJ then assessed Plaintiff’s residual functional capacity 9 (“RFC”)4 and concluded that through the date last insured, she had 10 the capacity to perform medium work, as defined in 20 C.F.R. 11 § 404.1567(c),5 except: 12 13 [Plaintiff] was able to sit, stand, or walk for 6 hours 14 each in an 8-hour day; she was able to engage in frequent 15 postural activities but was limited to occasional 16

17 2 The ALJ found that through the date last insured, Plaintiff’s temporomandibular joint disorder did not cause more 18 than a minimal limitation on Plaintiff’s ability to perform basic work activities and is therefore nonsevere. (AR 17-18). 19 20 3 Specifically, the ALJ considered whether Plaintiff met the criteria of Listings 1.04 (disorders of the spine), 5.06 21 (inflammatory bowel disease), 5.08 (weight loss due to any digestive disorder), 12.04 (depressive, bipolar and related 22 disorders), or 12.06 (anxiety and obsessive-compulsive disorders) and concluded that she did not. (AR 18-19). 23 4 A Residual Functional Capacity (“RFC”) is what a claimant 24 can still do despite existing exertional and nonexertional 25 limitations. See 20 C.F.R. § 404.1545(a)(1). 26 5 “Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 27 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work.” 20 C.F.R. § 404.1567(c). 28

3 1 climbing of ladders, ropes, or scaffolds; and she was 2 limited to performing simple and routine tasks with only 3 occasional public contact. 4 5 (AR 19). At step four, the ALJ found that through the date last 6 insured, Plaintiff was unable to perform any past relevant work. 7 (AR 23-24). Based on Plaintiff’s RFC, age, education, work 8 experience, and the VE’s testimony, the ALJ determined at step five 9 that through the date last insured, there were jobs that existed 10 in significant numbers in the national economy that Plaintiff could 11 have performed, including hand packager, laundry laborer, and 12 industrial cleaner. (AR 24-25). Accordingly, the ALJ found that 13 Plaintiff was not under a disability as defined in the Act from 14 September 18, 2008, the alleged onset date, through December 31, 15 2013, the date last insured. (AR 25). 16 17 The Appeals Council denied Plaintiff’s request for review on 18 August 30, 2018. (AR 1-6). Plaintiff now seeks judicial review of 19 the ALJ’s decision, which stands as the final decision of the 20 Commissioner. 42 U.S.C. §§ 405(g), 1383(c). 21 22 STANDARD OF REVIEW 23 24 This Court reviews the Commissioner’s decision to determine 25 if: (1) the Commissioner’s findings are supported by substantial 26 evidence; and (2) the Commissioner used proper legal standards. 42 27 U.S.C § 405(g); see Carmickle v. Comm’r, 533 F.3d 1155, 1159 (9th 28 Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007).

4 1 “Substantial evidence is more than a scintilla, but less than a 2 preponderance.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 3 1998). It is relevant evidence “which a reasonable person might 4 accept as adequate to support a conclusion.” Hoopai, 499 F. 3d at 5 1074; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). To 6 determine whether substantial evidence supports a finding, “a court 7 must consider the record as a whole, weighing both evidence that 8 supports and evidence that detracts from the [Commissioner’s] 9 conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 10 2001) (citation omitted); see Widmark v. Barnhart, 454 F.3d 1063, 11 1066 (9th Cir. 2006) (inferences “reasonably drawn from the record” 12 can constitute substantial evidence). 13 14 This Court “may not affirm [the Commissioner’s] decision 15 simply by isolating a specific quantum of support evidence, but 16 must also consider evidence that detracts from [the Commissioner’s] 17 conclusion.” Ray v. Bowen, 813 F.2d 914, 915 (9th Cir. 1987) 18 (citation omitted). However, the Court cannot disturb findings 19 supported by substantial evidence, even though there may exist 20 other evidence supporting Plaintiff’s claim. See Torske v. 21 Richardson, 484 F.2d 59, 60 (9th Cir. 1973). “If the evidence can 22 reasonably support either affirming or reversing the 23 [Commissioner’s] conclusion, [a] court may not substitute its 24 judgment for that of the [Commissioner].” Reddick, 157 F.3d 715, 25 720-21 (9th Cir. 1998) (citation omitted). 26 27 28

5 1 DISCUSSION 2 3 Plaintiff raises two claims for relief: (1) whether the ALJ 4 properly considered relevant medical evidence supportive of 5 Plaintiff’s claim of disability in assessing Plaintiff’s RFC; and 6 (2) whether the ALJ properly considered Plaintiff’s subjective 7 statements in assessing Plaintiff’s RFC. (Joint Stip. at 4-9, 12- 8 16). After consideration of the parties’ arguments and the record 9 as a whole, the Court finds that Plaintiff’s claims of error warrant 10 remand for further consideration. 11 12 A. ALJ’s RFC Assessment Is Not Supported By Substantial Evidence 13 14 “A claimant’s residual functional capacity is what he can 15 still do despite his physical, mental, nonexertional, and other 16 limitations.” Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th 17 Cir. 1989) (citing 20 C.F.R. § 404.1545). An RFC assessment 18 requires the ALJ to consider a claimant’s impairments and any 19 related symptoms that may “cause physical and mental limitations 20 that affect what [he] can do in a work setting.” 20 C.F.R. 21 §§ 404.1545(a)(1), 416.945(a)(1). In determining a claimant’s RFC, 22 the ALJ considers all relevant evidence, including residual 23 functional capacity assessments made by consultative examiners, 24 State Agency physicians, and medical experts. 20 C.F.R. 25 §§ 404.1545(a)(3), 416.945(a)(3); see also id. §§ 404.1513(c), 26 416.913(c). 27 28

6 1 In her decision, the ALJ found that Plaintiff retains the RFC 2 to perform a limited range of medium work. (AR 14). Specifically, 3 through the date last insured, the ALJ concluded that Plaintiff 4 was able to “lift and carry 50 pounds occasionally and 25 pounds 5 frequently; . . . sit, stand, or walk for 6 hours each in an 8- 6 hour day; . . . engage in frequent postural activities but was 7 limited to occasional climbing of ladders, ropes, or scaffolds.” 8 (AR 19). Plaintiff contends that the ALJ “selectively utilized 9 medical evidence . . . to support her determination that 10 [Plaintiff] is capable of performing and persisting at medium work 11 activity while simultaneously minimizing or ignoring other evidence 12 which is . . . supportive of Plaintiff’s claim of disability.” 13 (Joint Stip. at 5; see id. at 8). The Court agrees. 14 15 In determining that Plaintiff was capable of medium work, the 16 ALJ relied exclusively on the opinions of the State agency 17 physicians. (AR 22) (giving “great weight to the medium residual 18 functional capacity assessments from [the] State agency medical 19 consultants”). But the opinions of non-examining physicians, like 20 the State agency medical consultants, may serve as substantial 21 evidence only when their opinions “are consistent with independent 22 clinical findings or other evidence in the record.” Thomas v. 23 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); cf. Neugebauer v. 24 Barnhart, 154 F. App’x 649, 650 (9th Cir. 2005) (“the ALJ was free 25 to rely on non-treating agency physician reports that contained 26 specific clinical support”). The State agency medical consultants 27 do not reference any clinical findings or other medical evidence 28 in support of their conclusion that Plaintiff is capable of lifting

7 1 50 pounds occasionally and 25 pounds frequently. (See generally 2 AR 75-76, 87-88). Indeed, the medical consultants recommended that 3 a consultative examination was necessary “to establish [the] 4 current severity of [Plaintiff’s] impairments.” (AR 74, 87). 5 While the Agency ordered a complete psychiatric evaluation (AR 694- 6 97), no physical consultative examination was ordered.6 7 8 While the ALJ vaguely mentions “consistently normal” 9 musculoskeletal examinations and “minimal symptoms of 10 musculoskeletal pain or limitations” (AR 22), these findings do 11 not establish that a woman over 55 years of age is capable of 12 lifting 50 pounds occasionally and 25 pounds frequently.7 Indeed, 13 at least one normative study found that most women over the age of 14 50 are unable to lift more than 40 pounds. Leonard A. Matheson et 15 al., Age and Gender Normative Data for Lift Capacity 265 (2013).8 16 A person, like Plaintiff, who suffers from osteoporosis and 17 cervical spinal degenerative disc disease, which the ALJ found were 18 severe impairments, would likely have a strength deficit. Further, 19 throughout the relevant time period, Plaintiff had poor exercise 20 habits (AR 253, 259, 263, 274, 428, 898) and was consistently 21 6 While a physical consultative examination would likely 22 have been performed a few months after Plaintiff’s date last insured, it still would have provided significant, circumstantial 23 evidence of Plaintiff’s physical impairments prior to her date last 24 insured. 25 7 Plaintiff turned 55 on July 17, 2013, several months prior to her date last insured. (AR 172). 26 8 A copy of the study is available at (last visited Aug. 8, 2019). 28

8 1 overweight (AR 247, 254, 259, 274, 280, 283, 286, 392, 401, 404, 2 406, 408, 425, 433, 893, 898). Indeed, by August 2013, Plaintiff 3 was obese. (AR 909). This evidence, which the ALJ did not discuss, 4 undermines her conclusion that Plaintiff was capable of a medium 5 level of exertion. “[A]n ALJ may not pick and choose evidence 6 unfavorable to the claimant while ignoring evidence favorable to 7 the claimant.” Cox v. Colvin, 639 F. App’x 476, 477 (9th Cir. 8 2016) (citing Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 9 2014)). 10 11 In sum, the ALJ’s RFC assessment is not supported by 12 substantial evidence.9 On remand, the ALJ shall consider all 13 relevant evidence in assessing Plaintiff’s RFC and in deciding 14 whether Plaintiff truly was capable of medium work. 15 16 B. The ALJ Failed To Provide Specific, Clear, and Convincing 17 Reasons for Rejecting Plaintiff’s Subjective Symptom 18 Testimony 19 20 Plaintiff asserts that “[t]he ALJ has simply opted to ignore 21 Plaintiff’s subjective statements . . . in order to arrive at her 22 determination that Plaintiff is persisting at medium work 23 activity.” (Joint Stip. at 13). 24 25 26 9 Defendant did not address Plaintiff’s argument that the 27 ALJ’s physical RFC assessment was not supported by substantial evidence. (Joint Stip. at 9-12). 28

9 1 Plaintiff’s testimony indicated an inability to consistently 2 perform at a medium level of exertion. She testified that her 3 husband takes care of most of the household chores, including 4 cleaning, vacuuming, and shopping. (AR 49). On occasion, she is 5 able to lift and carry one or two gallons of milk, but if she 6 overexerts herself, she gets shoulder pain. (AR 54). Once or 7 twice a month, she is able to help her husband bring in the 8 groceries. (AR 55). Plaintiff suffers from severe osteoporosis, 9 and she has trouble with protein absorption and maintaining muscle 10 mass. (AR 47). 11 12 When assessing a claimant’s credibility regarding subjective 13 pain or intensity of symptoms, the ALJ must engage in a two-step 14 analysis. Trevizo v. Berryhill, 874 F.3d 664, 678 (9th Cir. 2017). 15 First, the ALJ must determine if there is medical evidence of an 16 impairment that could reasonably produce the symptoms alleged. 17 Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). “In this 18 analysis, the claimant is not required to show that her impairment 19 could reasonably be expected to cause the severity of the symptom 20 she has alleged; she need only show that it could reasonably have 21 caused some degree of the symptom.” Id. (emphasis in original) 22 (citation omitted). “Nor must a claimant produce objective medical 23 evidence of the pain or fatigue itself, or the severity thereof.” 24 Id. (citation omitted). 25 26 If the claimant satisfies this first step, and there is no 27 evidence of malingering, the ALJ must provide specific, clear and 28 convincing reasons for rejecting the claimant’s testimony about

10 1 the symptom severity. Trevizo, 874 F.3d at 678 (citation omitted); 2 see also Smolen, 80 F.3d at 1284 (“[T]he ALJ may reject the 3 claimant’s testimony regarding the severity of her symptoms only 4 if he makes specific findings stating clear and convincing reasons 5 for doing so.”); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 6 (9th Cir. 2006) (“[U]nless an ALJ makes a finding of malingering 7 based on affirmative evidence thereof, he or she may only find an 8 applicant not credible by making specific findings as to 9 credibility and stating clear and convincing reasons for each.”). 10 “This is not an easy requirement to meet: The clear and convincing 11 standard is the most demanding required in Social Security cases.” 12 Garrison, 759 F.3d at 1015 (citation omitted). 13 14 In discrediting the claimant’s subjective symptom testimony, 15 the ALJ may consider the following: 16 17 (1) ordinary techniques of credibility evaluation, such 18 as the claimant’s reputation for lying, prior 19 inconsistent statements concerning the symptoms, and 20 other testimony by the claimant that appears less than 21 candid; (2) unexplained or inadequately explained 22 failure to seek treatment or to follow a prescribed 23 course of treatment; and (3) the claimant’s daily 24 activities. 25 26 Ghanim, 763 F.3d at 1163 (citation omitted). Inconsistencies 27 between a claimant’s testimony and conduct, or internal 28 contradictions in the claimant’s testimony, also may be relevant.

11 1 Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014); Light v. 2 Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). In addition, 3 the ALJ may consider the observations of treating and examining 4 physicians regarding, among other matters, the functional 5 restrictions caused by the claimant’s symptoms. Smolen, 80 F.3d 6 at 1284; accord Burrell, 775 F.3d at 1137. However, it is improper 7 for an ALJ to reject subjective testimony based “solely” on its 8 inconsistencies with the objective medical evidence presented. 9 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 10 2009) (citation omitted). 11 12 Further, the ALJ must make a credibility determination with 13 findings that are “sufficiently specific to permit the court to 14 conclude that the ALJ did not arbitrarily discredit claimant’s 15 testimony.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 16 2008) (citation omitted); see Brown-Hunter v. Colvin, 806 F.3d 487, 17 493 (9th Cir. 2015) (“A finding that a claimant’s testimony is not 18 credible must be sufficiently specific to allow a reviewing court 19 to conclude the adjudicator rejected the claimant’s testimony on 20 permissible grounds and did not arbitrarily discredit a claimant’s 21 testimony regarding pain.”) (citation omitted). Although an ALJ’s 22 interpretation of a claimant’s testimony may not be the only 23 reasonable one, if it is supported by substantial evidence, “it is 24 not [the court’s] role to second-guess it.” Rollins v. Massanari, 25 261 F.3d 853, 857 (9th Cir. 2001). 26 27 In rejecting Plaintiff’s testimony of exertional limitations, 28 the ALJ acknowledged that Plaintiff has a history of osteoporosis

12 1 and degenerative changes in the cervical spine with disc space 2 narrowing. (AR 22). Nevertheless, the ALJ emphasized that 3 “musculoskeletal examinations were consistently normal” and 4 Plaintiff “received minimal treatment” for her cervical spine 5 issues. (AR 22). After careful consideration, the Court finds 6 that the ALJ’s conclusions are contrary to law and not supported 7 by clear and convincing evidence. See Garrison, 759 F.3d at 1015 8 (The clear and convincing standard is “the most demanding required 9 in Social Security cases” and “is not an easy requirement to meet.”) 10 (citation omitted). 11 12 The ALJ’s decision is not “sufficiently specific to permit 13 the court to conclude that the ALJ did not arbitrarily discredit 14 claimant’s testimony.” Tommasetti, 533 F.3d at 1039 (citation 15 omitted). It is not at all clear how normal musculoskeletal 16 examinations and minimal treatment targeting Plaintiff’s cervical 17 spine issues undermine Plaintiff’s testimony that she can only 18 occasionally lift and carry a gallon or two of milk or bag of 19 groceries. See Brown-Hunter, 806 F.3d at 493 (“The ALJ . . . 20 failed to identify specifically which of Brown–Hunter’s statements 21 she found not credible and why.”); Knape v. Berryhill, 734 F. App’x 22 500, 501 (9th Cir. 2018) (“The ALJ failed to identify the parts of 23 Knape’s mental health symptom testimony he found not credible and 24 failed to provide any links to the record.”); Fritz v. Berryhill, 25 685 F. App’x 585, 586 (9th Cir. 2017) (“[T]he ALJ did not identify 26 what testimony was not credible and what evidence undermined 27 Fritz’s complaints.”). As discussed above, an overweight woman 28 over the age of 55 with severe irritable bowel syndrome,

13 1 osteoporosis, and cervical spine degenerative disc disease can have 2 unremarkable musculoskeletal examinations and still be unable to 3 perform medium work. The ALJ’s cursory discussion of Plaintiff’s 4 physical subjective statements “is not the sort of explanation or 5 the kind of ‘specific reasons’ [this Court] must have in order to 6 review the ALJ’s decision meaningfully, so that [the Court] may 7 ensure that the claimant’s testimony was not arbitrarily 8 discredited.” Brown-Hunter, 806 F.3d at 494. Critically, the ALJ 9 never addressed Plaintiff’s testimony that she has trouble with 10 protein absorption and maintaining muscle mass. 11 12 Further, the ALJ’s reliance on objective medical evidence is 13 insufficient to undermine Plaintiff’s subjective symptom 14 testimony. While inconsistencies with the objective medical 15 evidence can be a factor that the ALJ may consider when evaluating 16 a claimant’s credibility, it cannot be the sole ground for 17 rejecting a claimant’s subjective testimony. Bray, 554 F.3d at 18 1227; Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); Rollins, 19 261 F.3d at 857. In any event, the objective evidence cited by 20 the ALJ does not clearly dispute Plaintiff’s subjective statements 21 regarding her exertional limitations. For example, as already 22 noted, the ALJ does not clearly and convincingly explain how normal 23 musculoskeletal examinations necessarily translates into the 24 ability to perform medium work. 25 26 In sum, the ALJ failed to provide clear and convincing 27 reasons, supported by substantial evidence, for rejecting 28 Plaintiff’s subjective symptoms. The matter is remanded for

14 1 further proceedings. On remand, the ALJ shall reevaluate 2 Plaintiff’s symptoms in accordance with SSR 16-3p, taking into 3 account the full range of medical evidence. 4 5 C. Remand Is Warranted 6 7 The decision whether to remand for further proceedings or 8 order an immediate award of benefits is within the district court’s 9 discretion. Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 10 2000). Where no useful purpose would be served by further 11 administrative proceedings, or where the record has been fully 12 developed, it is appropriate to exercise this discretion to direct 13 an immediate award of benefits. Id. at 1179 (“[T]he decision of 14 whether to remand for further proceedings turns upon the likely 15 utility of such proceedings.”). However, where, as here, the 16 circumstances of the case suggest that further administrative 17 review could remedy the Commissioner’s errors, remand is 18 appropriate. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); 19 Harman, 211 F.3d at 1179-81; see also Garrison, 759 F.3d at 1020 20 (cautioning that “the credit-as-true rule may not be dispositive 21 of the remand question in all cases”); cf. Treichler v. Comm’r of 22 Soc. Sec. Admin., 775 F.3d 1090, 1105 (9th Cir. 2014) (“[T]he 23 record raises crucial questions as to the extent of Treichler’s 24 impairment given inconsistencies between his testimony and the 25 medical evidence in the record. These are exactly the sort of 26 issues that should be remanded to the agency for further 27 proceedings.”). 28

15 1 Since the ALJ failed to properly evaluate Plaintiff’s RFC, 2 remand is warranted. However, if the ALJ properly demonstrates 3 that Plaintiff was truly capable of lifting and carrying 50 pounds 4 occasionally and 25 pounds frequently, the record does not 5 affirmatively establish that Plaintiff is disabled. Remand is 6 therefore appropriate. 7 8 ORDER 9 10 For the foregoing reasons, the decision of the Commissioner 11 is reversed, and the matter is remanded for further proceedings 12 pursuant to Sentence 4 of 42 U.S.C. § 405(g). 13 14 LET JUDGMENT BE ENTERED ACCORDINGLY. 15 16 DATED: August 12, 2019 17 /S/ _________ 18 ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28