Macleod v. Berryhill, No. 3:2018cv01873 - Document 29 (S.D. Cal. 2019)
Court Description: REPORT AND RECOMMENDATION Regarding Cross-Motions for Summary Judgment (ECF Nos. 18 , 24 ). This Court recommends that plaintiff's motion for summary judgment be granted, that the Commissioner's cross-motion for summary judgment be denie d, and that Judgment be entered reversing the decision of the Commissioner and remanding this matter for further administrative proceedings. Any party having objections to the Court's proposed findings and recommendations shall serve and file s pecific written objections within 14 days after being served with a copy of this Report and Recommendation. A party may respond to the other party's objections within 14 days after being served with a copy of the objections. Signed by Magistrate Judge Robert N. Block on 5/29/2019. (jdt)
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Macleod v. Berryhill Doc. 29 1 2 3 4 May 29 2019 5 6 s/ Loraineo 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TANYA GEANNA MACLEOD, Case No.: 3:18-cv-01873-LAB (RNB) Plaintiff, 12 13 v. 14 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 15 REPORT AND RECOMMENDATION REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT Defendant. 16 (ECF Nos. 18, 24) 17 18 This Report and Recommendation is submitted to the Honorable Larry Alan Burns, 19 United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 20 72.1(c) of the United States District Court for the Southern District of California. 21 On August 10, 2018, plaintiff Tanya Geanna Macleod filed a Complaint pursuant to 22 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social 23 Security denying her application for a period of disability and disability insurance benefits. 24 (ECF No. 1.) 25 Now pending before the Court and ready for decision are the parties’ cross-motions 26 for summary judgment. For the reasons set forth herein, the Court RECOMMENDS that 27 plaintiff’s motion for summary judgment be GRANTED, that the Commissioner’s cross- 28 motion for summary judgment be DENIED, and that Judgment be entered reversing the 1 3:18-cv-01873-LAB (RNB) Dockets.Justia.com 1 decision of the Commissioner and remanding this matter for further administrative 2 proceedings pursuant to sentence four of 42 U.S.C. § 405(g). 3 4 PROCEDURAL BACKGROUND 5 On July 15, 2014, plaintiff filed an application for a period of disability and disability 6 insurance benefits under Title II of the Social Security Act, alleging disability commencing 7 January 18, 2013. (Certified Administrative Record [“AR”] 181-84.) After her claim was 8 denied initially and upon reconsideration (AR 127-30, 132-37), plaintiff requested an 9 administrative hearing before an administrative law judge (“ALJ”). (AR 138-39.) An 10 administrative hearing was held on January 31, 2017. Plaintiff appeared at the hearing 11 with counsel, and testimony was taken from her and a vocational expert (“VE”). (AR 27- 12 46.) 13 As reflected in his June 1, 2017 hearing decision, the ALJ found that plaintiff had 14 not been under a disability, as defined in the Social Security Act, at any time from January 15 18, 2013, the alleged onset date, through September 30, 2013, the date last insured. (AR 16 15-23.) The ALJ’s decision became the final decision of the Commissioner on June 12, 17 2018, when the Appeals Council denied plaintiff’s request for review. (AR 1-6.) This 18 timely civil action followed. 19 20 SUMMARY OF THE ALJ’S FINDINGS 21 In rendering his decision, the ALJ initially determined that plaintiff last met the 22 insured status requirements of the Social Security Act on September 30, 2013. (AR 16, 23 18.) The ALJ proceeded to follow the Commissioner’s five-step sequential evaluation 24 process. See 20 C.F.R. § 404.1520.1 At step one, the ALJ found that plaintiff had not 25 engaged in substantial gainful activity during the period from her alleged onset date of 26 27 28 Unless otherwise indicated, all references herein to the Commissioner’s regulations are to the regulations in effect at the time of the ALJ’s decision. 1 2 3:18-cv-01873-LAB (RNB) 1 January 18, 2013 through her date last insured of September 30, 2013. (AR 18.) 2 At step two, the ALJ found that plaintiff had the following severe impairments: 3 degenerative joint disease of the cervical spine; asthma; fibromyalgia; obesity; and 4 depression. (AR 18.) 5 At step three, the ALJ found that plaintiff did not have an impairment or combination 6 of impairments that met or medically equaled the severity of one of the impairments listed 7 in the Commissioner’s Listing of Impairments. (AR 18.) 8 Next, the ALJ determined that plaintiff had the residual functional capacity (“RFC”) 9 to perform a range of light work as defined in 20 C.F.R. § 404.1567(b). Specifically, the 10 ALJ found that plaintiff was able to lift and carry 10 pounds frequently and 20 pounds 11 occasionally; could stand and walk six hours in an eight-hour workday, and could sit six 12 hours in an eight-hour workday. However, plaintiff could never reach overhead bilaterally; 13 had to avoid concentrated exposure to fumes, dust, and other allergens; and was limited to 14 one or two step oral and written instructions. (AR 19.) 15 For purposes of his step four determination, the ALJ adduced and accepted the VE’s 16 testimony that a hypothetical person with plaintiff’s vocational profile and RFC would be 17 unable to perform any past relevant work. (AR 21-22, 42-43.) 18 The ALJ then proceeded to step five of the sequential evaluation process. Based on 19 the VE’s testimony that a hypothetical person with plaintiff’s vocational profile and RFC 20 could perform the requirements of representative occupations that existed in significant 21 numbers in the national economy (i.e., hotel housekeeper, cafeteria attendant, and small 22 part assembler), the ALJ found that plaintiff was not disabled. (AR 22-23.) 23 24 DISPUTED ISSUES 25 As reflected in plaintiff’s summary judgment motion, the disputed issues that 26 27 plaintiff is raising as the grounds for reversal and remand are as follows: 1. Whether the ALJ properly rejected plaintiff’s subjective symptom testimony. 28 3 3:18-cv-01873-LAB (RNB) 1 2 2. Whether the ALJ erred by relying on the VE’s testimony at step five of the sequential evaluation process. 3 4 STANDARD OF REVIEW 5 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 6 determine whether the Commissioner’s findings are supported by substantial evidence and 7 whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 8 (9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less than a 9 preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v. Sec’y of 10 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is 11 “such relevant evidence as a reasonable mind might accept as adequate to support a 12 conclusion.” Richardson, 402 U.S. at 401. This Court must review the record as a whole 13 and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529- 14 30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, 15 the Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 16 (9th Cir. 1984). 17 18 19 20 DISCUSSION A. The Court is unable to affirm the ALJ’s adverse credibility determination. 21 In the section of his decision discussing plaintiff’s testimony as it related to the 22 ALJ’s RFC determination, the ALJ noted that, in her disability report completed July 31, 23 2014, plaintiff alleged disability due to various medical conditions, including degenerative 24 disc disease, fibromyalgia, visual impairment, asthma/COPD, carpal tunnel, and IBS 25 (irritable bowel syndrome). (See AR 20, citing AR 211.) The ALJ further noted that, at 26 the administrative hearing, plaintiff testified that she had a mini stroke in May 2013, which 27 caused a left eye blindness. (See AR 20, citing “Testimony.”) No other testimony from 28 the administrative hearing was noted. 4 3:18-cv-01873-LAB (RNB) 1 It is well established in this Circuit that, if the claimant has produced objective 2 medical evidence of an impairment or impairments that could reasonably be expected to 3 produce some degree of pain and/or other symptoms and the record is devoid of any 4 affirmative evidence of malingering, the ALJ may reject the claimant’s testimony 5 regarding the severity of the claimant’s pain and/or other symptoms only if the ALJ makes 6 specific findings stating clear and convincing reasons for doing so. See Smolen v. Chater, 7 80 F.3d 1273, 1281-82 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); 8 Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991); Cotton v. Bowen, 799 F.2d 1403, 9 1407 (9th Cir. 1986). Further, it is incumbent on the ALJ to specify which statements by 10 plaintiff concerning his or her symptoms and functional limitations were not credible 11 and/or in what respect(s) plaintiff’s statements were not credible. See Reddick v. Chater, 12 157 F.3d 715, 722 (9th Cir. 1998); Smolen, 80 F.3d at 1284. 13 Here, after citing the allegation from plaintiff’s disability report and plaintiff’s 14 testimony at the administrative hearing regarding the left eye blindness caused by her mini 15 stroke, the ALJ acknowledged: 16 17 18 19 20 21 22 23 24 25 26 27 “After careful consideration of the evidence, the undersigned finds that the claimant’s medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” (AR 20.) The only statement made by the ALJ thereafter in support of his adverse credibility determination was the following: “In terms of the claimant’s allegations, they are inconsistent with the medical evidence. Despite the claimant’s assertions of disability, as discussed above, the clinical and objective findings were minimal. Moreover, contrary to the claimant’s allegation of functional limitations, she also iterated she exercise[s] occasionally; takes care of her dogs, and does laundry (Exhibit C1F/78; C2F/1312).” (AR 21.) 28 5 3:18-cv-01873-LAB (RNB) 1 2 For the reasons discussed hereafter, the Court is unable to affirm the ALJ’s adverse credibility determination. 3 4 1. The ALJ failed in his duty to fully and fairly develop the record with 5 respect to the symptoms and functional limitations resulting from 6 plaintiff’s severe medically determinable impairments. 7 In Social Security cases, the ALJ has a special, independent duty to develop the 8 record fully and fairly and to assure that the claimant’s interests are considered. 9 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir.2001); Smolen, 80 F.3d at 1288. Brown 10 v. Heckler, 713 F.2d 441, 443 (9th Cir.1983). The ALJ also has a basic duty to inform 11 himself about facts relevant to his decision. Heckler v. Campbell, 461 U.S. 458, 471 n.1 12 (1983) (Brennan, J., concurring). The ALJ’s duty to develop the record is triggered “when 13 there is ambiguous evidence or when the record is inadequate to allow for proper evaluation 14 of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir.2001) (citation 15 omitted). 16 represented by counsel. Tonapetyan, 242 F.3d at 1150. The ALJ's duty to develop the record exists even when the claimant is 17 Here, as noted above, at step two of the sequential evaluation process, the ALJ found 18 that had the following severe impairments: degenerative joint disease of the cervical spine; 19 asthma; fibromyalgia; obesity; and depression. (AR 18.) Under the Commissioner’s 20 regulations, an impairment is severe only if it significantly limits the claimant’s physical 21 or mental ability to do basic work activities. See 20 C.F.R. § 416.920(c) (emphasis added). 22 Basic work activities are “abilities and aptitudes necessary to do most jobs,” including 23 “[p]hysical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, 24 carrying, or handling.” Basic work activities also include mental activities such as 25 understanding, carrying out, and remembering simple instructions; use of judgment; 26 responding appropriately to supervision, co-workers, and usual work situations; and 27 28 6 3:18-cv-01873-LAB (RNB) 1 dealing with changes in a routine work setting. See Social Security Ruling (“SSR”) 85- 2 28.2 3 However, the ALJ did not specifically ask plaintiff at the administrative hearing 4 about the severity of her pain and/or other symptoms caused by the medical impairments 5 found by the ALJ to qualify as “severe.” Nor did the ALJ ask plaintiff about the intensity 6 and persistence of her symptoms resulting from those impairments. The ALJ also did not 7 specifically ask plaintiff about the degree of functional limitation she was alleging resulted 8 from her severe medical impairments. For example, the ALJ did not ask plaintiff how 9 many pounds she could lift or carry, or how long she could sit, stand, and/or walk in an 10 eight-hour work day. The ALJ’s examination of plaintiff focused on the mini stroke for 11 which plaintiff had been hospitalized in May 2013. (See AR 33-36.)3 While the ALJ did 12 ask plaintiff if the stroke affected her balance, ability to walk, and ability to lift and carry, 13 the ALJ did not follow up when plaintiff merely responded, “It did.” (See AR 35.) 14 15 16 17 Social Security Rulings are binding on ALJs. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). 18 3 19 20 21 22 23 24 25 26 27 28 2 Earlier in the decision when discussing the severity of plaintiff’s alleged impairments for purposes of his step two finding, the ALJ noted that the hospital discharge notes on May 20, 2013 “indicated diagnoses of abdominal pain, gastroparesis/constipation, likely narcotic induced, chronic lower extremity pain, and fibromyalgia and no evidence of stroke.” (AR 18, citing AR 3340.) However, the discharge notes did not expressly state that there was “no evidence of stroke.” Indeed, the hospital admission notes reflected that plaintiff was taken to the hospital by the paramedics after an incident in the shower when plaintiff suddenly felt weakness to her left lower extremity and subsequently developed some chest pain; and that, upon admission, plaintiff still was complaining of inability to move her left lower extremity, about having no feeling to light touch or to palpitation of the left extremity, and about having severe pain on the left side of her abdomen. (See AR 3337.) On the same page of discharge notes cited by the ALJ, the discharge doctor indicated that he would be asking for “a neurology consult.” (See AR 3340.) The reason for the ensuing neurology consult was “for possible ischemic attack.” (See AR 1798.) The only reasonable inference to be drawn from this evidence is that plaintiff indeed had exhibited stroke-like symptoms. 7 3:18-cv-01873-LAB (RNB) 1 The evidence before the ALJ regarding the severity of plaintiff’s pain and/or other 2 symptoms caused by her severe medically determinable impairments was sparse, 3 incomplete, and inadequate to allow for proper evaluation of plaintiff’s functional 4 limitations. The ALJ was obligated to develop the record further than he did. 5 6 2. 7 The reasons provided by the ALJ in support of his adverse credibility determination were not legally sufficient. 8 Since the Commissioner has not argued that there was evidence of malingering, the 9 Court will apply the “clear and convincing” standard to the reasons provided by the ALJ 10 in support of his adverse credibility determination. See Burrell v. Colvin, 775 F.3d 1133, 11 1136 (9th Cir. 2014) (applying “clear and convincing” standard where the government did 12 not argue that a lesser standard should apply based on evidence of malingering); see also 13 Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014) (same). 14 The Court first will address the ALJ’s reliance on the specified daily activities. The 15 first exhibit cited by the ALJ was a page from notes of a doctor’s office visit on October 9, 16 2013, which reflect that plaintiff reported exercising occasionally, 0-5 hours per week, and 17 cleaning up after the animals (dogs) in her home. (See AR 319.) The second exhibit cited 18 by the ALJ was to a page from notes of a doctor’s visit on May 31, 2013, which reflect that 19 plaintiff reported she had injured her hand while transferring laundry from the washer to 20 the drier. (See AR 1634.) The ALJ apparently inferred from this incident that plaintiff did 21 laundry. 22 Under Ninth Circuit jurisprudence, there are “two grounds for using daily activities 23 to form the basis of an adverse credibility determination”: Evidence of the daily activities 24 either (1) contradicts the claimant’s other testimony, or (2) meets the threshold for 25 transferable work skills. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Here, 26 neither of these grounds applies. First, the ALJ failed to posit any specific allegations by 27 plaintiff or any specific testimony from her that any of the specified daily activities 28 8 3:18-cv-01873-LAB (RNB) 1 contradicted.4 See Burrell, 775 F.3d at 1138 (ALJ erred by not elaborating on which daily 2 activities conflicted with which part of the claimant’s testimony). 3 Commissioner does not even purport to contend that plaintiff’s ability to exercise 4 occasionally (0-5 hours per week), clean up after her dogs, or do laundry constituted 5 substantial evidence that plaintiff was able to spend a substantial part of her day engaged 6 in pursuits involving the performance of physical and mental functions that are transferable 7 to a work setting. See, e.g., Diedrich v. Berryhill, 874 F.3d 634, 642-43 (9th Cir. 2017) 8 (claimant’s ability to perform daily activities including personal hygiene, cooking, 9 household chores, and shopping not a clear and convincing reason to find her less than 10 fully credible); Vertigan v. Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001) (evidence that 11 claimant did certain chores that did not consume a substantial part of the day did not detract 12 from her credibility); Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1996) (“The Social 13 Security Act does not require claimants to be utterly incapacitated to be eligible for 14 benefits, and many home activities may not be easily transferable to a work environment 15 where it might be impossible to rest periodically or take medication.”) (internal citations 16 omitted)). Second, the 17 The Court therefore finds that the ALJ’s reliance on the specified daily activities did 18 not constitute a clear and convincing reason upon which the ALJ could properly rely in 19 support of his adverse credibility determination. 20 21 22 4 23 24 25 26 27 28 Although the Commissioner asserts that the incident evidencing that plaintiff did laundry was inconsistent with plaintiff’s administrative hearing testimony that, up until September 2012, she did not perform any housework whatsoever (see ECF No. 24-1 at 67), the ALJ did not reference plaintiff’s testimony about not doing housework or posit this purported inconsistency as a basis for his adverse credibility determination. The Court accordingly is unable to consider this purported inconsistency as a basis for upholding the ALJ’s adverse credibility determination. See Ceguerra v. Sec’y of Health & Human Servs., 933 F.2d 735, 738 (9th Cir. 1991) (“A reviewing court can evaluate an agency’s decision only on the grounds articulated by the agency.”); see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). 9 3:18-cv-01873-LAB (RNB) 1 The other stated reason on which the ALJ based his adverse credibility determination 2 was that plaintiff’s allegations were inconsistent with the medical evidence. Since the ALJ 3 did not specify which allegations by plaintiff concerning her symptoms and/or functional 4 limitations were inconsistent with what medical evidence, the Court has no basis for 5 finding that this reason constituted a clear and convincing reason upon which the ALJ could 6 properly rely in support of his adverse credibility determination. Moreover, since the 7 ALJ’s reliance on the specified daily activities was legally insufficient to support his 8 adverse credibility determination, this remaining reason cannot be legally sufficient by 9 itself. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884 (9th Cir. 2006) (where ALJ’s 10 initial reason for adverse credibility determination was legally insufficient, his sole 11 remaining reason premised on lack of medical support for claimant’s testimony was legally 12 insufficient); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (“[A] finding 13 that the claimant lacks credibility cannot be premised wholly on a lack of medical support 14 for the severity of his pain.”). 15 16 B. As a result of the Court’s inability to affirm the ALJ’s adverse credibility 17 determination, it is unnecessary to reach the other disputed issue raised 18 by plaintiff. 19 It follows from the Court’s inability to affirm the ALJ’s adverse credibility 20 determination, including for the reason that the ALJ failed to fully and fairly develop the 21 record with respect to the symptoms and functional limitations resulting from plaintiff’s 22 severe medically determinable impairments, that the Court also is unable to affirm the 23 ALJ’s RFC determination. Since the VE’s testimony on which the ALJ relied in support 24 of his vocational determination at step five of the sequential evaluation process was 25 predicated on a hypothetical person with plaintiff’s vocational profile and RFC, it in turn 26 follows from the Court’s inability to afform the ALJ’s RFC determination that it is 27 unnecessary for the Court to address the other disputed issue raised by plaintiff (i.e., 28 10 3:18-cv-01873-LAB (RNB) 1 whether the ALJ erred in his reliance on the VE’s testimony at step five of the sequential 2 evaluation process). 3 4 CONCLUSION AND RECOMMENDATION 5 The law is well established that the decision whether to remand for further 6 proceedings or simply to award benefits is within the discretion of the Court. See, e.g., 7 Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan, 888 F.2d 599, 8 603 (9th Cir. 1989); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). Remand for 9 further proceedings is warranted where additional administrative proceedings could 10 remedy defects in the decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 11 1984); Lewin, 654 F.2d at 635. Remand for the payment of benefits is appropriate where 12 no useful purpose would be served by further administrative proceedings, Kornock v. 13 Harris, 648 F.2d 525, 527 (9th Cir. 1980); where the record has been fully developed, 14 Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where remand would 15 unnecessarily delay the receipt of benefits to which the disabled plaintiff is entitled, Bilby 16 v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985). 17 The Court is mindful of Ninth Circuit authority for the proposition that, where an 18 ALJ failed to properly consider either subjective symptom testimony or medical opinion 19 evidence, it is sometimes appropriate to credit the evidence as true and remand the case for 20 calculation and award of benefits. See, e.g., Garrison v. Colvin, 759 F.3d 995, 1019-21 21 (9th Cir. 2014). However, the Court has found here that the record has not been fully 22 developed with respect to the symptoms and functional limitations resulting from 23 plaintiff’s severe medically determinable impairments. Accordingly, the Court disagrees 24 with plaintiff that this is an appropriate case for application of the “credit as true” rule. See 25 also Ghanim, 763 F.3d at 1167 (In a case decided after Garrison, another Ninth Circuit 26 panel did not apply or even acknowledge the “credit as true” rule where substantial 27 evidence did not support an ALJ’s rejection of treating medical opinions and his adverse 28 11 3:18-cv-01873-LAB (RNB) 1 credibility determination; instead, the panel simply remanded the case for further 2 administrative proceedings.) 3 This Court therefore RECOMMENDS that plaintiff’s motion for summary 4 judgment be GRANTED, that the Commissioner’s cross-motion for summary judgment 5 be DENIED, and that Judgment be entered reversing the decision of the Commissioner 6 and remanding this matter for further administrative proceedings pursuant to sentence four 7 of 42 U.S.C. § 405(g). 8 Any party having objections to the Court’s proposed findings and recommendations 9 shall serve and file specific written objections within 14 days after being served with a 10 copy of this Report and Recommendation. See Fed. R. Civ. P. 72(b)(2). The objections 11 should be captioned “Objections to Report and Recommendation.” A party may respond 12 to the other party’s objections within 14 days after being served with a copy of the 13 objections. See id. 14 IT IS SO ORDERED. 15 16 17 18 Dated: May 29, 2019 _________________________________ ROBERT N. BLOCK United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 12 3:18-cv-01873-LAB (RNB)
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