Stephanie Lamothe v. Nancy A. Berryhill

• Court: District Court, C.D. California
• Decided: September 27, 2019
• Docket: 2:18-cv-05467
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 STEPHANIE L., ) Case No. CV 18-5467-SP ) 12 Plaintiff, ) ) 13 v. ) MEMORANDUM OPINION AND ) ORDER 14 ) ANDREW M. SAUL, ) 15 Commissioner of Social Security ) Administration, ) 16 ) Defendant. ) 17 ) ) 18 19 I. 20 INTRODUCTION 21 On June 19, 2018, plaintiff Stephanie L. filed a complaint against defendant, 22 the Commissioner of the Social Security Administration (“Commissioner”), 23 seeking a review of a denial of a period of disability, disability insurance benefits 24 (“DIB”), and supplemental security income (“SSI”). The parties have fully briefed 25 the matters in dispute, and the court deems the matter suitable for adjudication 26 without oral argument. 27 Plaintiff presents one disputed issue for decision, whether the Administrative 28 1 Law Judge (“ALJ”) properly evaluated plaintiff’s testimony. Plaintiff’s 2 Memorandum in Support of Complaint (“P. Mem.”) at 5-12; see Defendant’s 3 Memorandum in Support of Answer (“D. Mem.”) at 1-4. 4 Having carefully studied the parties’ memoranda on the issue in dispute, the 5 Administrative Record (“AR”), and the decision of the ALJ, the court concludes 6 that, as detailed herein, the ALJ failed to properly evaluate plaintiff’s subjective 7 complaints. The court therefore remands this matter to the Commissioner in 8 accordance with the principles and instructions enunciated herein. 9 II. 10 FACTUAL AND PROCEDURAL BACKGROUND 11 Plaintiff, who was 50 years old on the alleged disability onset date, is a high 12 school graduate. AR at 637, 667. Plaintiff has past relevant work as an 13 administrative clerk and receptionist. Id. at 657. 14 On April 10, 2015 and September 3, 2015, plaintiff filed applications for a 15 period of disability, DIB, and SSI, alleging an onset date of May 19, 2014 due to 16 tendonitis, high blood pressure, high cholesterol, carpal tunnel syndrome, herniated 17 disc, spinal stenosis, pinched nerve, and anxiety. Id. at 667-68, 743. The 18 Commissioner denied plaintiff’s application initially, after which she filed a 19 request for a hearing. Id. at 681-87. 20 On June 7, 2017, plaintiff, represented by counsel, appeared and testified at 21 a hearing before the ALJ. Id. at 632-65. The ALJ also heard testimony from Jeff 22 L. Clark, a vocational expert. Id. at 657-63. On October 25, 2017, the ALJ denied 23 plaintiff’s claims for benefits. Id. at 34-44. 24 Applying the well-known five-step sequential evaluation process, the ALJ 25 found, at step one, that plaintiff had not engaged in substantial gainful activity 26 since May 19, 2014, the alleged onset date. Id. at 37. 27 At step two, the ALJ found plaintiff suffered from the following severe 28 1 impairments: degenerative disease of the cervical spine with disc protrusions, 2 stenosis, and radiculopathy; degenerative disc disease of the lumbar spine with disc 3 protrusions, stenosis, radiculopathy, and facet arthropathy; osteophytes of the 4 thoracic spine; right shoulder impingement and tendonitis; right adhesive capsilitis 5 and degenerative changes of the right acromioclavicular joint; right carpal tunnel 6 syndrome; bilateral lateral epicondylitis; left nerve ulnar entrapment at the elbow; 7 left carpal tunnel syndrome and cubital tunnel syndrome; status post left ulner 8 nerve transposition and carpal tunnel releases; bilateral de Quervains tenosynovitis; 9 status post bilateral tendon releases; small nerve fiber neuropathy; left trigger 10 thumb status post release; hypertension; and hyperlipidemia. Id. 11 At step three, the ALJ found plaintiff’s impairments, whether individually or 12 in combination, did not meet or medically equal one of the listed impairments set 13 forth in 20 C.F.R. part 404, Subpart P, Appendix 1 (the “Listings”). Id. at 39. 14 The ALJ then assessed plaintiff’s residual functional capacity (“RFC”),1 and 15 determined she had the RFC to perform less than the full range of light work, with 16 the limitations that plaintiff could: lift and carry 20 pounds occasionally and 10 17 pounds frequently; stand or walk for six hours in an eight-hour day; sit for six 18 hours in an eight-hour day; occasionally climb ramps and stairs; occasionally 19 balance, stoop, kneel, crouch, and crawl; but never climb ladders, ropes, and 20 scaffolds; and never work around protected heights. Id. With regard to the 21 bilateral upper extremities, the ALJ also precluded plaintiff from above shoulder 22 work, including overhead reaching, but determined she could engage in frequent 23 24 1 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155- 26 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the 27 claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 28 n.2 (9th Cir. 2007). 1 handling and fingering. Id. 2 The ALJ found, at step four, that plaintiff could perform her past relevant 3 work as an administrative clerk and receptionist. Id. at 42. 4 In the alternative, the ALJ found at step five, considering plaintiff’s age, 5 education, work experience, and RFC, there were jobs that existed in significant 6 numbers in the national economy that plaintiff could perform, including food 7 preparation worker, hostess, and counter clerk. Id. at 43-44. Consequently, the 8 ALJ concluded plaintiff did not suffer from a disability as defined by the Social 9 Security Act. Id. at 44. 10 Plaintiff filed a timely request for review of the ALJ’s decision, which was 11 denied by the Appeals Council. Id. at 1-4. The ALJ’s decision stands as the final 12 decision of the Commissioner. 13 III. 14 STANDARD OF REVIEW 15 This court is empowered to review decisions by the Commissioner to deny 16 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 17 Administration must be upheld if they are free of legal error and supported by 18 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 19 (as amended). But if the court determines the ALJ’s findings are based on legal 20 error or are not supported by substantial evidence in the record, the court may 21 reject the findings and set aside the decision to deny benefits. Aukland v. 22 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 23 1144, 1147 (9th Cir. 2001). 24 “Substantial evidence is more than a mere scintilla, but less than a 25 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 26 “relevant evidence which a reasonable person might accept as adequate to support 27 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 28 1 F.3d at 459. To determine whether substantial evidence supports the ALJ’s 2 finding, the reviewing court must review the administrative record as a whole, 3 “weighing both the evidence that supports and the evidence that detracts from the 4 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be 5 affirmed simply by isolating a specific quantum of supporting evidence.’” 6 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 7 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 8 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that 9 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 10 1992)). 11 IV. 12 DISCUSSION 13 Plaintiff contends the ALJ failed to properly evaluate her testimony. P. 14 Mem. at 5-12. Specifically, plaintiff argues the ALJ’s sole reason for discounting 15 her testimony was a lack of supporting objective medical evidence, and that this by 16 itself was not clear and convincing. Id. 17 At the hearing, plaintiff testified she suffered from neck, shoulder, back, 18 hand, and elbow pain. See AR at 644-45, 650. Plaintiff stated the pain was 19 sometimes severe and sometimes tolerable. Id. at 645. Plaintiff was unable to sit 20 for longer periods and did not drive. See id at 650-51. She was able to stand for 21 approximately twenty minutes at a time, could walk about a block, and could not 22 lift a gallon of milk. See id. at 651-53. 23 An ALJ must make specific credibility findings, supported by the record. 24 Social Security Ruling (“SSR”) 96-7p. To determine whether testimony 25 concerning symptoms is credible, an ALJ engages in a two-step analysis. 26 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, an ALJ must 27 determine whether a claimant produced objective medical evidence of an 28 1 underlying impairment “‘which could reasonably be expected to produce the pain 2 or other symptoms alleged.’” Id. at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 3 341, 344 (9th Cir. 1991) (en banc)). Second, if there is no evidence of 4 malingering, an “ALJ can reject the claimant’s testimony about the severity of her 5 symptoms only by offering specific, clear and convincing reasons for doing so.” 6 Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); accord Burrell v. Colvin, 7 775 F.3d 1133, 1136 (9th Cir. 2014). An ALJ may consider several factors in 8 weighing a claimant’s credibility, including: (1) ordinary techniques of credibility 9 evaluation such as a claimant’s reputation for lying; (2) the failure to seek 10 treatment or follow a prescribed course of treatment; and (3) a claimant’s daily 11 activities. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Bunnell, 12 947 F.2d at 346-47. 13 At the first step, the ALJ here found plaintiff’s medically determinable 14 impairments could reasonably be expected to cause the symptoms alleged. AR at 15 39. At the second step, because the ALJ did not find any evidence of malingering, 16 the ALJ was required to provide clear and convincing reasons for discounting 17 plaintiff’s testimony. The ALJ provided four reasons for discounting plaintiff’s 18 testimony: (1) her alleged symptoms were inconsistent with the objective medical 19 evidence; (2) she received mild and conservative care; (3) she made an inconsistent 20 statement; and (4) the epidural injections provided plaintiff three weeks of relief. 21 See id. at 39-42. Although the ALJ only expressly cited one reason for finding 22 plaintiff’s testimony less credible – the lack of objective medical evidence to 23 support the symptoms – the ALJ included the latter three reasons in his credibility 24 discussion and they can reasonably be inferred as additional grounds for the 25 adverse credibility finding. See id.; Magallanes v. Bowen, 881 F.2d 747, 755 (9th 26 Cir. 1989) (an ALJ need not recite “magic words,” a reviewing court may draw 27 inferences from an opinion). 28 1 The ALJ’s first reason for finding plaintiff’s testimony less than fully 2 credible was her subjective complaints were not supported by the objective 3 medical evidence. See AR at 39-42; Rollins v. Massanari, 261 F.3d 853, 857 (9th 4 Cir. 2001) (the lack of corroborative objective medical evidence may be one factor 5 in evaluating a claimant’s credibility). The ALJ relied on a selective citation to a 6 few findings and Dr. Marvin Perer’s opinion that plaintiff can perform medium 7 work to support his conclusion. The citations and Dr. Perer’s opinion are not 8 substantial evidence. 9 As an initial matter, to the extent the ALJ relied on Dr. Marvin Perer’s 10 opinion that plaintiff was capable of medium work to discount her testimony 11 concerning her lumbar and cervical spine, the reliance was misplaced. See AR at 12 40, 1030-35. Dr. Perer reviewed only five or six days of treatment notes, some of 13 which were from prior to the alleged onset of disability or unrelated, and examined 14 plaintiff once. Id. at 894-95, 912-13, 914-24, 1030. Noting Dr. Perer, a 15 consultative internist, examined plaintiff on one occasion and did not review her 16 medical records, the ALJ only gave Dr. Perer’s opinion partial weight. See id. at 17 41, 1030; see also McKinzie v. Colvin, 634 Fed. Appx. 177, 179-80 (9th Cir. 2015) 18 (failure to review a claimant’s medical record may be a legitimate reason for 19 discounting a physician’s opinion). Yet the ALJ indicated he relied on Dr. Perer’s 20 opinion that plaintiff is capable of medium work as evidence that plaintiff’s 21 symptoms are not credible. See AR at 40. The ALJ cannot have it both ways. 22 As for the objective medical findings, the ALJ acknowledged the medical 23 imaging clearly indicates plaintiff suffered from, among other things, disc 24 dessication and herniation at multiple levels, severe central canal stenosis, 25 moderate to severe neural foraminal stenosis, radiculopathy, right shoulder 26 impingement, right shoulder tendinosis, and cysts. See id. at 516, 518, 562-67, 27 571-72, 1683. Nevertheless, the ALJ determined plaintiff’s symptoms were less 28 1 than credible due to some normal findings. Id. at 40. 2 With respect to plaintiff’s cervical and lumbar pain, the ALJ noted that 3 plaintiff had normal range or motion in his cervical and lumbar spine in December 4 2014 and July 2015. Id. The ALJ also relied on three additional findings from the 5 July 2015 consultative examination that plaintiff: had a normal gait; had a 6 negative straight leg raise test; and could get on and off the examination table 7 without difficulty. Id. Here, the ALJ selectively referred to some normal findings 8 from two days while ignoring the remaining objective evidence. In addition to the 9 imaging, other treating and examining physicians observed plaintiff had, among 10 other things, tenderness, decreased range of motion, spasm in the lumbar and 11 cervical spine, and positive straight leg raise tests. See, e.g., id. at 529, 1656, 1695, 12 1781, 2034. Although physicians also observed plaintiff had a normal range of 13 motion in her neck on occasion, it was often achieved with pain. See, e.g., id. at 14 584, 1430. Moreover, other treating physicians observed similar findings of 15 normal range of motion or gait, but concluded plaintiff required surgery. See, e.g. 16 id. at 581, 589. The fact that plaintiff sometimes had some normal findings was 17 therefore inadequate to discount her testimony, particularly in light of her complete 18 medical record. See Schow v. Astrue, 272 Fed. Appx. 647, 652-53 (9th Cir. 2008) 19 (even with the inclusion of some normal findings, the ALJ’s reasons were 20 inadequate to support his credibility determination). Indeed, plaintiff’s occasional 21 normal findings were consistent with her testimony that her pain level fluctuated 22 day to day. See AR at 645. 23 Similarly, with respect to plaintiff’s complaints about her right shoulder, the 24 ALJ cited an April 2015 finding that plaintiff had no weakness and full strength, 25 and the consultative examiner’s findings that plaintiff had no tenderness or 26 swelling. See id. at 40. Again, the record is replete with findings of decreased 27 range of motion, pain, and tenderness, as well as a recommendation for surgery. 28 1 See, e.g., id. at 529, 605, 1064, 1263, 1485. Indeed, the ALJ acknowledges Dr. 2 Perer even observed a decreased range of motion. See id. at 40, 1033. Looking at 3 the medical record as a whole, on balance, it cannot be said that the objective 4 medical evidence did not support plaintiff’s complaints about her right shoulder. 5 Moreover, although the lack of objective medical evidence to support 6 allegations of limitations is a factor that may be considered when evaluating 7 credibility, it is insufficient by itself. See Bunnell, 947 F.2d at 345 (an ALJ “may 8 not reject a claimant’s subjective complaints based solely on a lack of objective 9 medical evidence to fully corroborate the alleged severity of pain”) . Thus, even 10 assuming the ALJ correctly found the plaintiff’s symptoms were not supported by 11 the objective medical evidence, it cannot constitute a clear and convincing reason 12 supported by substantial evidence if it is the only reason for the adverse finding. 13 Here, the ALJ provided three other reasons for the adverse credibility 14 finding, but none are supported by the evidence. The second reason the ALJ gave 15 was that plaintiff received mild and conservative treatment. AR at 40; see Parra v. 16 Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (“[E]vidence of ‘conservative treatment’ 17 is sufficient to discount a claimant’s testimony regarding severity of an 18 impairment.”); Tommasetti, 533 F.3d at 1039-40 (conservative treatment may be a 19 clear and convincing reason for discounting a claimant’s credibility). Plaintiff was 20 treated with acupuncture, physical therapy, chiropractic care, pain medications 21 including narcotics, epidural injections, and surgery. See, e.g., AR at 126, 199- 22 201, 581, 605. While pain medication, acupuncture, physical therapy, and 23 chiropractic care are considered conservative, the use of narcotic medication in 24 conjunction with epidural injections is not. See, e.g., Lapeirre-Gutt v. Astrue, 382 25 Fed. Appx. 662, 664 (9th Cir. 2010) (treatment consisting of “copious” amounts of 26 narcotic pain medication, occipital nerve blocks, and trigger point injections was 27 not conservative); Tommasetti, 533 F.3d at 1040 (characterizing physical therapy 28 1 as conservative); Christie v. Astrue, 2011 WL 4368189, at *4 (C.D. Cal. Sept. 16, 2 2011) (treatment with narcotics, steroid injections, trigger point injections, epidural 3 injections, and cervical traction was not conservative). Moreover, surgery is 4 unquestionably not mild and conservative. Plaintiff underwent surgery for her 5 carpal tunnel syndrome and was recommended surgery for her cervical spine, 6 lumbar spine, and right shoulder. AR at 339, 589, 605, 648, 2482. Although the 7 insurance company denied authorization for the right shoulder surgery, the fact 8 remains that surgery was recommended as a course of treatment. See Orn v. 9 Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (failure to seek treatment may be a basis 10 for an adverse credibility finding unless there was a good reason for not doing so). 11 Therefore, the record plainly reflects plaintiff did not receive only mild and 12 conservative treatment. 13 The third reason the ALJ provided for finding plaintiff’s testimony not 14 credible was she made an inconsistent statement. AR at 40; see Bunnell, 947 F.2d 15 at 346 (an ALJ “may discredit the claimant’s allegations based on 16 inconsistencies”). Specifically, the ALJ noted plaintiff testified epidural injections 17 did not help her pain, but had previously reported that she had three weeks of relief 18 after receiving a lumbar epidural injection.2 AR at 40, 638, 642, 1996. This 19 inconsistency was not a clear and convincing reason to discount plaintiff’s 20 testimony. First, it is unclear that plaintiff’s testimony was inconsistent with her 21 earlier report. The question itself was open to interpretation. Plaintiff could have 22 reasonably interpreted the ALJ as asking whether the injections provided 23 significant or long term relief, which the record reflects it did not. Second, to the 24 extent that plaintiff’s testimony was inconsistent with her earlier report, it was 25 26 2 By the times of the June 7, 2017 hearing, plaintiff had already received three 27 epidural injections in her lumbar spine, three epidural injections in her cervical 28 spine, and one or two injections in the shoulder. See AR at 126, 643. 1 minor. See Gonzalez v. Astrue, 253 Fed. Appx. 654, 655 (9th Cir. 2007) (holding 2 that an inconsistency relating to claimant’s education was minor and not material); 3 Rocha v. Astrue, 2010 W L797160, at *5 (C.D. Cal. Mar. 5, 2010) (finding that 4 minor inconsistencies in daily activities did not impugn claimant’s credibility). 5 The fact that plaintiff testified the injections did not help rather than testifying they 6 provided three weeks of relief was minor given that she consistently stated that the 7 injections did not provide significant long-term relief. 8 Finally, the temporary relief plaintiff experienced from the injections was 9 not a basis for an adverse credibility finding. See, e.g., Salcido v. Saul, 2019 WL 10 2516875, at *4 (C.D. Cal. June 18, 2019) (ALJ improperly discounted plaintiff’s 11 credibility because she reported improvements when the improvements were only 12 temporary); Marshall v. Berryhill, 2017 WL 2060658, at *14 (S.D. Cal. May 12, 13 2017) (temporary relief does not constitute sustained improvement in symptoms 14 that justifies discrediting a claimant’s testimony); Strange v. Colvin, 2016 WL 15 226376, at *7 (C.D. Cal. Jan. 19, 2017) (“[T]emporary relief is not a valid reason 16 to find plaintiff less than credible.”). 17 Accordingly, the ALJ failed to cite clear and convincing reasons supported 18 by substantial evidence for his adverse credibility finding. Contrary to the ALJ’s 19 determination, the objective medical evidence supported plaintiff’s alleged 20 symptoms, plaintiff did not receive conservative treatment, plaintiff’s inconsistent 21 statement was minor, and temporary relief was not a valid reason to discount. 22 V. 23 REMAND IS APPROPRIATE 24 The decision whether to remand for further proceedings or reverse and 25 award benefits is within the discretion of the district court. McAllister v. Sullivan, 26 888 F.2d 599, 603 (9th Cir. 1989). It is appropriate for the court to exercise this 27 discretion to direct an immediate award of benefits where: “(1) the record has been 28 1 fully developed and further administrative proceedings would serve no useful 2 purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting 3 evidence, whether claimant testimony or medical opinions; and (3) if the 4 improperly discredited evidence were credited as true, the ALJ would be required 5 to find the claimant disabled on remand.” Garrison v. Colvin, 759 F.3d 995, 1020 6 (9th Cir. 2014) (setting forth three-part credit-as-true standard for remanding with 7 instructions to calculate and award benefits). But where there are outstanding 8 issues that must be resolved before a determination can be made, or it is not clear 9 from the record that the ALJ would be required to find a plaintiff disabled if all the 10 evidence were properly evaluated, remand for further proceedings is appropriate. 11 See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 12 211 F.3d 1172, 1179-80 (9th Cir. 2000). In addition, the court must “remand for 13 further proceedings when, even though all conditions of the credit-as-true rule are 14 satisfied, an evaluation of the record as a whole creates serious doubt that a 15 claimant is, in fact, disabled.” Garrison, 759 F.3d at 1021. 16 Here, remand is required to resolve the outstanding issue. On remand, the 17 ALJ shall reconsider plaintiff’s credibility and either accept her testimony or 18 provide clear and convincing reasons for rejecting it. The ALJ shall then reassess 19 plaintiff’s RFC and proceed through steps four and five to determine what work, if 20 any, plaintiff was capable of performing. 21 // 22 // 23 // 24 25 26 27 28 1 VI. 2 CONCLUSION 3 IT IS THEREFORE ORDERED that Judgment shall be entered 4 || REVERSING the decision of the Commissioner denying benefits, and 5 || REMANDING the matter to the Commissioner for further administrative action 6 || consistent with this decision. 7 8 9 || DATED: September 27, 2019 CRP SHERI PYM 11 United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13