Martha Crosthwaite v. Nancy A. Berryhill

• Court: District Court, C.D. California
• Decided: August 19, 2019
• Docket: 2:18-cv-05576
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 || MARTHA C.,! Case No. 2:18-cv-05576-MAA Plaintiff, 13 MEMORANDUM DECISION AND v. ORDER REVERSING DECISION OF 1A THE COMMISSIONER AND REMANDING FOR FURTHER 15 || ANDREW M. SAUL2 ADMINISTRATIVE PROCEEDINGS Commissioner of Social Security, 16 Defendant. 17 18 On June 22, 2018, Plaintiff filed a Complaint seeking review of the 19 || Commissioner’s final decision denying her application for a period of disability and 20 |} Disability Insurance Benefits pursuant to Title II of the Social Security Act. This 21 || matter is fully briefed and ready for decision. For the reasons discussed below, the 22 |} Commissioner’s final decision is reversed, and this matter is remanded for further 23 || administrative proceedings. 24 |} ———__ ' Plaintiffs name is artially redacted in accordance with Federal Rule of Civil 25 || Procedure 5.2(c\(2)(8) and the recommendation of the Committee on Court 3 Administration and Case Management of the Judicial Conference of the United tates. 27 | 2 The Commissioner of Social Security is substituted as the Defendant pursuant to 38 Federal Rule of Civil Procedure 25(d).

1 ADMINISTRATIVE BACKGROUND 2 On January 21, 2015, Plaintiff filed an application for a period of disability 3 || and Disability Insurance Benefits, alleging disability beginning on June 13, 2014. 4 || (Administrative Record [AR] 13, 53.) Plaintiff alleged disability because of back 5 || pain from herniated discs, high blood pressure, depression, an irregular heartbeat, 6 || high cholesterol, incontinence, and hand tremors. (AR 53.) After her application 7 || was denied initially, Plaintiff requested a hearing before an Administrative Law 8 || Judge (“ALJ”). (AR 13, 73-74.) At a hearing held on January 31, 2017, at which 9 || Plaintiff appeared with counsel, the ALJ heard testimony from Plaintiff and a 10 |} vocational expert. (AR 25-52.) 11 In a decision issued on June 22, 2017, the ALJ denied Plaintiffs claim after 12 || making the following findings pursuant to the Commissioner’s five-step evaluation. 13 | (AR 13-20.) Plaintiff had not engaged in substantial gainful activity since her 14 || alleged onset date of June 13, 2014. (AR 15.) She had a severe impairment 15 || consisting of degenerative disc disease of the lumbar spine. (/d.) She did not have 16 |} an impairment or combination of impairments that met or medically equaled the 17 || requirements of one of the impairments from the Commissioner’s Listing of 18 || Impairments. (AR 17.) She had a residual functional capacity to perform light 19 || work but with additional postural and environmental limitations. (/d.) Based on 20 || this residual functional capacity, Plaintiff could perform her past relevant work as a 21 || teacher aide II, both as actually performed and as generally performed in the 22 || national economy. (AR 20.) Accordingly, the ALJ concluded that Plaintiff was not 23 || disabled as defined by the Social Security Act. (/d.) 24 On May 25, 2018, the Appeals Council denied Plaintiffs request for review. 25 || (AR 1-6.) Thus, the ALJ’s decision became the final decision of the 26 || Commissioner. 27 /// 28 ///

1 DISPUTED ISSUES 2 The parties raise the following disputed issues: 3 1. Whether the ALJ erred in her evaluation of the medical evidence; 4 2. Whether the ALJ erred by failing to include all medically determinable 5 || impairments in the residual functional capacity analysis; and 6 3. Whether the ALJ properly considered Plaintiffs subjective 7 || complaints. 8 (ECF No. 25, Parties’ Joint Stipulation [“Joint Stip.”] at 3.) 9 10 STANDARD OF REVIEW 11 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s final 12 || decision to determine whether the Commissioner’s findings are supported by 13 || substantial evidence and whether the proper legal standards were applied. See 14 || Treichler v. Commissioner of Social Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 15 || 2014). Substantial evidence means “more than a mere scintilla” but less than a 16 || preponderance. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter 17 || v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). Substantial evidence is “such 18 || relevant evidence as a reasonable mind might accept as adequate to support a 19 || conclusion.” Richardson, 402 U.S. at 401. The Court must review the record as a 20 || whole, weighing both the evidence that supports and the evidence that detracts from 21 || the Commissioner’s conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is 22 || susceptible of more than one rational interpretation, the Commissioner’s 23 || interpretation must be upheld. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 24 || 2007). 25 26 DISCUSSION 27 For the reasons discussed below, reversal and remand for further 28 || administrative proceedings are warranted for Issue Three, based on the ALJ’s

1 || assessment of Plaintiffs subjective complaints. Having found that remand is 2 || warranted, the Court declines to address Plaintiff's remaining arguments. See Hiler 3 || v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the case to the 4 || ALJ for the reasons stated, we decline to reach [plaintiffs] alternative ground for 5 || remand.”); see also Augustine ex rel. Ramirez v. Astrue, 536 F. Supp. 2d 1147, 6 || 1153 n.7 (C.D. Cal. 2008) (“[The] Court need not address the other claims plaintiff 7 || raises, none of which would provide plaintiff with any further relief than granted, 8 || and all of which can be addressed on remand.”). 9 10] Plaintiff’s Subjective Symptom Allegations (Issue Three). 11 1. Legal Standard. 12 An ALJ must make two findings in assessing a claimant’s pain or symptom 13 || allegations. Social Security Ruling (“SSR”) 16-3P, 2017 WL 5180304, at *3; 14 || Treichler, 775 F.3d at 1102. “First, the ALJ must determine whether the claimant 15 || has presented objective medical evidence of an underlying impairment which could 16 || reasonably be expected to produce the pain or other symptoms alleged.” Treichler, 17 || 775 F.3d at 1102 (citation omitted). “Second, if the claimant has produced that 18 || evidence, and the ALJ has not determined that the claimant is malingering, the ALJ 19 || must provide specific, clear and convincing reasons for rejecting the claimant’s 20 |) testimony regarding the severity of the claimant’s symptoms” and those reasons 21 || must be supported by substantial evidence in the record. /d.; see also Marsh v. 22 || Colvin, 792 F.3d 1170, 1174 n.2 (9th Cir. 2015). 23 “A finding that a claimant’s testimony is not credible ‘must be sufficiently 24 || specific to allow a reviewing court to conclude the adjudicator rejected the 25 || claimant’s testimony on permissible grounds and did not arbitrarily discredit a 26 || claimant’s testimony regarding pain.”” Brown-Hunter v. Colvin, 806 F.3d 487, 493 27 || (9th Cir. 2015) (quoting Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) 28 || (en banc)). &

1 Effective March 28, 2016, SSR 16-3P rescinded and superseded the 2 || Commissioner’s prior rulings as to how the Commissioner will evaluate a 3 || claimant’s statements regarding the intensity, persistence, and limiting effects of 4 || symptoms in disability claims. See SSR 16-3P, 2017 WL 5180304, at *1. Because 5 || the ALJ’s decision in this case was issued on June 22, 2017, it is governed by SSR 6 || 16-3P. See id. at *13 andn.27. In pertinent part, SSR 16-3P eliminated the use of 7 || the term “credibility” and clarified that the Commissioner’s subjective symptom 8 || evaluation “is not an examination of an individual’s character.” SSR 16-3P, 2017 9 | WL 5180304, at *2; see also Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 10 || 2017). These changes are largely stylistic and are consistent in substance with 11 || Ninth Circuit precedent that existed before the effective date of SSR16-3P. See 12 || Trevizo, 871 F.3d at 678 n.5. 13 14 2. Background. 15 During the hearing, Plaintiff testified as follows about her work history, 16 | medical conditions, treatment, and activities: 17 Plaintiff's past work included jobs as an in-home caretaker and a teacher’s 18 || aide. (AR 30, 33.) She had worked as a teacher’s aide for 35 years, but she 19 || stopped doing that job to work exclusively as a caretaker for her mother. (AR 33.) 20 || In 2014, she injured her back while trying to lift her mother. (AR 30; see also AR 21 || 400.) Plaintiff has not worked since the injury. (AR 31; see also AR 400.) 22 Two months before the hearing, Plaintiff purchased a cane at a CVS 23 || drugstore because she needed it. (AR 33.) She used the cane at the hearing. (/d.) 24 || She had received three epidural steroid injections for her back pain, but she 25 || declined further injections because she felt they provided only temporary pain 26 || relief. (AR 33-34.) Her most severe pain arises from her lower back. (AR 35.) 27 || But she also has a kidney disease that requires several bathroom trips and hand 28 || tremors that make it difficult to write. (AR 36, 37-38.)

1 On a typical day, Plaintiff cooks, does laundry, watches television, and lies 2 || down in bed. (AR 36-37.) She shops for groceries with the help of her daughter 3 || and does not drive. (AR 37.) 4 In addition to testifying at the hearing, Plaintiff submitted a written function 5 || report that was similar in content to her hearing testimony. (AR 158-66.) Plaintiff 6 || wrote that she cannot walk or stand for more than five minutes and that she shakes 7 || too much. (AR 158.) She also wrote that on a typical day, she eats breakfast, gets 8 || dressed, watches television, reads, goes out alone or with her daughter, prepares 9 || meals, and does some chores. (AR 159.) 10 The ALJ rejected Plaintiffs subjective symptom allegations pursuant to the 11 || Commissioner’s two-step evaluation. (AR 18.) First, the ALJ found that □□□□□□□□□□□ 12 || “medically determinable impairments could reasonably be expected to cause the 13 || alleged symptoms.” Ud.) Second, the ALJ found that Plaintiff’s subjective 14 || statements were “not entirely consistent with he medical evidence and other 15 || evidence in the record.” (/d.) As support, the ALJ made detailed findings that 16 || accounted for four types of reasons to reject Plaintiffs subjective symptom 17 || allegations: (1) Plaintiff's refusal of additional epidural steroid injections; (2) her 18 || treatment plan; (3) her use of a cane that was not prescribed; and (4) the objective 19 | medical findings. (AR 18-19.) The Court reviews below each reason in turn. 20 21 3. Analysis. 22 As an initial matter, the Commissioner identifies two additional possible 23 || reasons that the ALJ relied upon to discount Plaintiff's subjective symptom 24 || allegations. (Joint Stip. at 28, 29.) According to the Commissioner, the ALJ also 25 || relied on evidence of Plaintiffs daily activities and the opinions of three physicians 26 || who had assessed Plaintiffs functional limitations. (/d.) The Court disagrees. 27 || Although the ALJ did make certain findings about Plaintiff's daily activities and the 28 || physicians’ opinions, the ALJ never specifically tied those findings to Plaintiff's

1 || subjective symptom allegations. See Burrell v. Colvin, 775 F.3d 1133, 1139 (9th 2 || Cir. 2014) (declining to infer that an ALJ rejected a claimant’s testimony because 3 || of findings about her treatment for headaches because, although the ALJ did make 4 || such findings, “he never stated that he rested his adverse credibility determination 5 || on those findings”). Thus, those findings are not reviewable here. See Connett v. 6 || Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“[W]e are constrained to review the 7 || reasons the ALJ asserts.”). Rather, the Court reviews only the other reasons 8 || identified above, which were specifically tied to Plaintiffs subjective symptom 9 || allegations, to determine whether the ALJ stated clear and convincing reasons 10 |} supported by substantial evidence. (AR 18-19.) 11 12 a. Plaintiff’s refusal of additional epidural] steroid injections. 13 The ALJ found that Plaintiff's refusal of additional epidural steroid injections 14 || was inconsistent with her pain allegations: although some evidence showed 15 || Plaintiff received “good pain relief’ (AR 560) from the injections, her “choice not 16 || to continue with epidural injections is not consistent with the significant limitations 17 || alleged by [Plaintiff].” (AR 18.) 18 A claimant’s “unexplained, or inadequately explained, failure to seek 19 || treatment or follow a prescribed course of treatment” is a factor that “can cast doubt 20 |) on the sincerity of the claimant’s pain testimony.” See Fair v. Bowen, 885 F.2d 21 || 597, 603 (9th Cir. 1989); see also SSR 16-3P, 2017 WL 5180304, at *9 (“[I]f the 22 || individual fails to follow prescribed treatment that might improve symptoms, we 23 || may find the alleged intensity and persistence of an individual’s symptoms are 24 || inconsistent with the overall evidence of record.”). On the other hand, “[w]here a 25 || claimant provides evidence of a good reason for not taking medication for her 26 || symptoms, her symptom testimony cannot be rejected for not doing so.” Smolen v. 27 || Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). For example, a claimant should not be 28 | disqualified for refusing treatment if the record shows a physician had stopped it or

1 || it was ineffective. See Gallant v. Heckler, 753 F.2d 1450, 1455 (9th Cir. 1984) 2 || (finding an ALJ unjustified in discrediting a claimant’s pain complaints for failure 3 || to take pain medication where the ALJ failed to note that a doctor recommended 4 || that medication be stopped). 5 Here, after Plaintiff received three epidural steroid injections, the physician 6 || who had administered them, Dr. Valdez, recommended a fourth injection (AR 583), 7 || which Plaintiff declined (AR 34, 262). But Plaintiff’s refusal to follow Dr. 8 || Valdez’s recommendation was not unexplained or inadequately explained, given 9 || her repeated explanations that the initial injections provided only a short period of 10 |] relief. (AR 34, see also AR 257, 258, 280, 283, 289, 299, 382, 400, 431, 432.) The 11 || evidence of “good pain relief” cited by the ALJ (AR 560) did not contradict 12 || Plaintiffs explanations because that evidence was written on the same day as an 13 || injection, not after some time had passed. More significantly, the ALJ failed to 14 || note that another physician, Dr. Ahn, agreed with Plaintiff that the three injections 15 || already administered had “failed” and recommended back surgery instead. (AR 16 |) 553-55.) Another physician, Dr. Sobol, similarly stated that Plaintiff “may” need 17 || back surgery. (AR 266.) 18 Because the ALJ failed to address Plaintiff's proffered explanation for why 19 || she stopped receiving epidural steroid injections, which was supported by Dr. 20 || Ahn’s assessment that the injections had failed, evidence of Plaintiff's refusal to 21 || undergo further injections was not a convincing ground to discredit her testimony, 22 || despite Dr. Valdez’s recommendation of another injection. See Trevizo, 871 F.3d at 23 || 679-80 (finding an ALJ unjustified in discrediting a claimant’s subjective symptom 24 || testimony for failure to take prescribed narcotics and rash medication because the 25 || ALJ ignored the claimant’s proffered explanations of fears of addiction and of the 26 || possibility the medication was causing the rash); Nichols v. Califano, 556 F.2d 931, 27 || 934 (9th Cir. 1977) (finding a claimant’s refusal to submit to a third surgery 28 || justified where the previous two surgeries were unsuccessful, despite disagreements

1 || among physicians about the probable success of a third surgery); Lapeirre-Gutt v. 2 || Astrue, 382 F. App’x 662, 664 (9th Cir. 2010) (finding an ALJ unjustified in 3 || discrediting a claimant’s testimony for discontinuing physical therapy where the 4 || claimant had explained that physical therapy was not effective). Thus, this was not 5 || aclear and convincing reason based on substantial evidence. 6 7 b. Plaintiff’s treatment plan. 8 The ALJ similarly found that Plaintiff had a treatment plan that “put her at a 9 || range of light work.” (AR 19.) Specifically, the ALJ noted that Plaintiff’ s 10 || treatment plan “included an epidural injection, weight loss, Lidoderm patches, 11 || Tylenol 3, and home exercises [AR 583].” (AR 19.) 12 In assessing a claimant’s subjective symptom allegations, an ALJ properly 13 || may consider a physician’s “failure to prescribe, and [a claimant’s] failure to 14 || request, any serious medical treatment for this supposedly excruciating pain.” See 15 || Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999); see also Parra v. Astrue, 481 16 || F.3d 742, 751 (9th Cir. 2007) (“We have previously indicated that evidence of 17 || ‘conservative treatment’ is sufficient to discount a claimant’s testimony regarding 18 || the severity of an impairment.”) (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th 19 || Cir. 1995)); Hanes v. Colvin, 651 F. App’x 703, 705 (9th Cir. 2016) (finding an 20 || adverse credibility determination supported by substantial evidence of a 21 || “conservative treatment plan, which consisted primarily of minimal medication, 22 || limited injections, physical therapy, and gentle exercise.”). 23 Here, it appears that the ALJ reasoned that because Plaintiff’s treatment plan 24 || put her at a range of light work, the plan was inconsistent with the intensity of her 25 || allegations. (AR 19.) But this reason did not account for changes in Plaintiffs 26 |) treatment plan over time. Plaintiff earlier tried other treatments that were 27 || unsuccessful, such as physical therapy (AR 221), acupuncture (AR 428), and 28 || trigger point injections (AR 597). More significantly, the ALJ failed to note, as

1 || discussed above, Dr. Ahn’s assessment that the current treatment plan had failed 2 || and that Plaintiff was a candidate for back surgery. (AR 553-55.) It is not clear 3 || that Dr. Ahn’s recommendation of back surgery translates into an ability to perform 4 || light work, such that it undermines Plaintiff's pain complaints. Cf Burch v. 5 || Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (ALJ properly discredited a claimant’s 6 |} allegation of back pain where, in part, no back surgery had been suggested). Thus, 7 || this was not a clear and convincing reason based on substantial evidence. 8 9 c. Plaintiff’s use of a cane that was not prescribed. 10 The ALJ also found that Plaintiffs use of a cane, which she had purchased at 11 || the store, undermined her allegations because “[t]here is no prescription or 12 || recommendation from a doctor in the medical evidence of record.” (AR 19.) 13 An ALJ may consider evidence that a claimant is using a cane that is not 14 || medically prescribed to find the claimant’s allegations not credible. See Verduzco 15 || v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (holding that an ALJ permissibly 16 || discounted the testimony of a claimant who “had walked slowly and used a cane at 17 || the hearing, although none of his doctors had ever indicated that he used or needed 18 || to use an assistive device in order to walk” and where “two doctors had specifically 19 || noted that [the claimant] did not need such a device”). Here, however, such a 20 || finding is unwarranted because the record does not support a reasonable inference 21 || that Plaintiff, like the claimant in Verduzco, was trying to mislead the ALJ by using 22 || acane. Plaintiff testified that she purchased the cane from a drug store because she 23 || needed it (AR 33), and she never tried to mislead the ALJ into thinking that a 24 || physician had prescribed it. The ALJ’s finding that the cane was not medically 25 || prescribed thus was not responsive to any subjective allegation that Plaintiff had 26 || made. See Saunders v. Astrue, 433 F. App’x 531, 534 (9th Cir. 2011) (holding that 27 || an ALJ improperly discredited a claimant’s testimony for using a cane that was not 28 || prescribed where the claimant truthfully admitted that the cane helped him cope 10

1 || with the pain and feel more comfortable). Thus, this was not a clear and convincing 2 || reason based on substantial evidence. 3 4 d. The objective medical findings. 5 The ALJ also found that Plaintiffs subjective symptom allegations were not 6 || consistent with objective medical findings. (AR 18, 19.) As support, the ALJ cited 7 || several examples such as MRI results, clinical findings of a normal gait, physical 8 || examination results, and x-ray results. (/d.) 9 “While subjective pain testimony cannot be rejected on the sole ground that it 10 || is not fully corroborated by objective medical evidence, the medical evidence is still 11 || arelevant factor in determining the severity of the claimant’s pain and its disabling 12 | effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (citing 20 C.F.R. 13 || § 404.1529(c)(2)); see also Burch, 400 F.3d at 681. Here, however, this reason 14 || forms the sole possible basis for the ALJ’s discounting of Plaintiffs testimony 15 || because, as discussed above, the other three reasons were legally insufficient. By 16 || itself, this reason based on objective medical findings cannot constitute substantial 17 || evidence to support the ALJ’s rejection of Plaintiffs subjective symptom 18 || allegations. See Robbins v. Social Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) 19 || (holding that where an ALJ’s other reason to reject the claimant’s testimony was 20 || legally insufficient, the sole remaining reason premised on the absence of objective 21 || medical support could not justify the credibility determination); see also Bunnell, 22 || 947 F.2d at 345 (“[A]n adjudicator may not reject a claimant’s subjective 23 || complaints based solely on a lack of objective medical evidence to fully corroborate 24 || the alleged severity of pain”). Thus, this reason was insufficient to support the 25 || ALJ’s assessment of Plaintiff's allegations. 26 27 4. Conclusion. 28 In sum, the assessment of Plaintiff's subjective symptoms allegations was not 11

1 || supported by clear and convincing reasons based on substantial evidence in the 2 || record. Thus, reversal is warranted. 3 4 |B. Remand for further administrative proceedings. 5 Ninth Circuit case law “precludes a district court from remanding a case for 6 || an award of benefits unless certain prerequisites are met.” Dominguez v. Colvin, 7 | 808 F.3d 403, 407 (9th Cir. 2015) (citations omitted). “The district court must first 8 || determine that the ALJ made a legal error, such as failing to provide legally 9 || sufficient reasons for rejecting evidence.” Jd. “Ifthe court finds such an error, it 10 |} must next review the record as a whole and determine whether it is fully developed, 11 || is free from conflicts and ambiguities, and all essential factual issues have been 12 || resolved.” Jd. (citation and internal quotation marks omitted). 13 Although the Court has found an absence of clear and convincing reasons 14 || based on substantial evidence to discredit Plaintiffs subjective symptom 15 || allegations, the record on the whole is not fully developed, and essential factual 16 || issues remain outstanding. The discredited evidence raises factual conflicts about 17 || Plaintiff's level of functioning that “should be resolved through further proceedings 18 || on an open record before a proper disability determination can be made by the ALJ 19 || in the first instance.” See Brown-Hunter, 806 F.3d at 496; see also Treichler, 775 20 || F.3d at 1101 (stating that remand for an award of benefits is inappropriate where 21 || “there is conflicting evidence, and not all essential factual issues have been 22 || resolved”) (citation omitted); Strauss v. Commissioner of the Social Sec. Admin., 23 || 635 F.3d 1135, 1138 (9th Cir. 2011) (same where the existing record does not 24 || clearly demonstrate that the claimant is disabled within the meaning of the Social 25 || Security Act). 26 Therefore, based on its review and consideration of the entire record, the 27 || Court has concluded on balance that a remand for further administrative 28 |) proceedings pursuant to sentence four of 42 U.S.C. § 405(g) is warranted here. It is 12

1 || not the Court’s intent to limit the scope of the remand. 2 3 ORDER 4 It is ordered that Judgment be entered reversing the decision of the 5 || Commissioner of Social Security and remanding this matter for further 6 || administrative proceedings. 7 8 || DATED: August , 2019 : / ap . went nano ii UNIT ATES MAGISTRATE JUDGE 12

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