Hector Muro Carrillo v. Nancy A. Berryhill

[8] UNITED STATES DISTRICT COURT [9] CENTRAL DISTRICT OF CALIFORNIA [11] HECTOR M. C.,1 Case No. EDCV 19-00944-RAO [12] Plaintiff, [13] v. MEMORANDUM OPINION AND 14 ORDER ANDREW M. SAUL,2 15 Commissioner of Social Security, 16 Defendant. [18] Plaintiff Hector M.C. (“Plaintiff”) challenges the Commissioner’s denial of his [19] application for a period of disability and disability insurance benefits (“DIB”). [20] Plaintiff filed his application on July 26, 2012, alleging disability beginning on [21] August 10, 2003. (Administrative Record (“AR”) 209, 216.) This matter has been [25] 1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) 26 and the recommendation of the Committee on Court Administration and Case 27 Management of the Judicial Conference of the United States. 2 Pursuant to Federal Rule of Civil Procedure 25(d), Andrew M. Saul, the current 28 Commissioner of Social Security, is hereby substituted as the defendant herein. 1 remanded twice (see AR 604, 852) , and a third unfavorable decision was issued by 2 the Commissioner on March 13, 2019 (AR 731-40). 3 Plaintiff raises the following issues for review: (1) whether the ALJ has 4 properly considered the relevant medical evidence of record in assessing Plaintiff’s 5 residual functional capacity (“RFC”); and (2) whether the ALJ has properly 6 considered Plaintiff’s subjective complaints and testimony under oath regarding his 7 impairments, symptoms, and limitations in assessing Plaintiff’s RFC. (Joint 8 Submission (“JS”) 6-7.) For the reasons stated below, the decision of the 9 Commissioner is REVERSED, and the matter is REMANDED. 10 I. The ALJ Failed to Properly Consider Plaintiff’s Subjective Complaints 11 and Testimony 12 Plaintiff contends that the ALJ’s “unfavorable decision of March 13, 2019 . . . 13 is not supported by substantial evidence of record in that the ALJ has failed to 14 properly consider Plaintiff’s subjective statements of record and testimony under 15 oath regarding his impairments, symptoms, and resulting limitations, in assessing 16 Plaintiff’s [RFC].” (JS 15; see JS 15-19.) 17 The Court’s review of the ALJ’s decision discussing Plaintiff’s subjective 18 symptom testimony shows the following. In evaluating Plaintiff’s symptoms, the 19 ALJ began by reciting the relevant and familiar two-step analysis that an ALJ 20 undertakes in assessing a claimant’s testimony regarding the intensity, persistence, 21 and limiting effects. (AR 735.) “First, the ALJ must determine whether the claimant 22 has presented objective medical evidence of an underlying impairment which could 23 reasonably be expected to produce the pain or other symptoms alleged.” Treichler v. 24 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting 25 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)) (internal quotation marks 26 3 Hector M. C. v. Berryhill, Case No. CV 5:16-00957-RAO (C.D. Cal. filed May 10, 27 2016), and Hector M. C. v. Berryhill, No. CV 5:17-01839-RAO (C.D. Cal. filed Sept. 11, 2017). In both prior cases, the Commissioner stipulated to remand to the agency. 28 See Dkt. No. 15, Case No. CV 5:16-00957; Dkt. No. 17, Case No. CV 5:17-01839. 1 omitted). Second, and if the ALJ does not find evidence of malingering, the ALJ 2 must provide specific, clear and convincing reasons for rejecting a claimant’s 3 testimony regarding the severity of his symptoms. Id. 4 The ALJ subsequently summarized Plaintiff’s testimony. (AR 735.) After 5 summarizing Plaintiff’s testimony, the ALJ found Plaintiff’s symptoms were 6 “inconsistent with the medical record.” (Id.) The ALJ offered the following two 7 sentences in support: “While the claimant had objective findings and treatment for 8 CTS and lumbar spine degeneration, treatment appeared to be effective. After 9 injections, surgery, and physical therapy in 2004, and treatment in 2005, there were 10 sparse treatment records.” (Id.) 11 After examining the ALJ’s decision addressing Plaintiff’s symptoms, the 12 Court cannot discern on what ground or grounds the ALJ discounted Plaintiff’s 13 symptom testimony. See Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) 14 (“ALJ must make a credibility determination with findings sufficiently specific to 15 permit the court to conclude that the ALJ did not arbitrarily discredit claimant's 16 testimony.”) It is well settled that in assessing the credibility of a claimant’s 17 symptom testimony, the ALJ must identify what testimony was found not credible 18 and explain what evidence undermines that testimony. Holohan v. Massanari, 246 19 F.3d 1195, 1208 (9th Cir. 2001). “General findings are insufficient.” Lester v. 20 Chater, 81 F.3d 821, 834 (9th Cir. 1995). 21 The Commissioner argues that the ALJ gave multiple valid reasons for finding 22 Plaintiff’s allegations were inconsistent with the overall evidence of record, 23 “including inconsistency with the medical record, inconsistency with the level of 24 treatment he received, and effectiveness of the treatment.” (JS 19-20.) However, the 25 Commissioner’s arguments represent an attempt to explain what the ALJ may have 26 been thinking, but failed to express in the written decision. See Bray v. Comm’r of 27 Soc. Sec. Admin., 554 F.3d 1219, 1225-26 (9th Cir. 2009) (“Long-standing principles 28 of administrative law require us to review the ALJ's decision based on the reasoning 1 and factual findings offered by the ALJ—not post hoc rationalizations that attempt to 2 intuit what the adjudicator may have been thinking.”); see also Agsaoay v. Colvin, 3 No. 3:15-CV-02728-GPC-NLS, 2017 WL 1149285 , at *8 (S.D. Cal. Mar. 28, 2017) 4 (rejecting Commissioner’s arguments where “no such line of argument or conclusion 5 appears in the ALJ’s decision”). Accordingly, the Court will not consider the 6 Commissioner’s arguments. 7 Because no malingering allegation was made, the ALJ was required to provide 8 specific, clear and convincing reasons for rejecting Plaintiff’s testimony regarding 9 the severity of his symptoms. Treichler, 775 F.3d at 1102 . Here, the ALJ failed to 10 provide the level of specificity required to reject or discount Plaintiff’s testimony. 11 The ALJ provided two sentences that fail to explain the ALJ’s reasoning in finding 12 Plaintiff’s testimony was inconsistent with the medical record. (See AR 735.) 13 Moreover, the ALJ does not point to any documents within the Administrative 14 Record in support of his finding. (See id.) Finally, the Court cannot find that such 15 error was harmless “because [the error] precludes [the Court] from conducting a 16 meaningful review of the ALJ’s reasoning.” Brown-Hunter v. Colvin, 806 F.3d 487 , 17 489 (9th Cir. 2015); see id. at 492, 494-95 . Thus, the ALJ erred in failing to provide 18 sufficiently specific findings for the Court to conclude that the ALJ did not arbitrarily 19 discredit Plaintiff’s testimony. See Thomas, 278 F.3d at 958 . 20 In sum, the Court concludes that the ALJ failed to properly consider Plaintiff’s 21 subjective symptom testimony by failing to provide clear and convincing reasons, 22 supported by substantial evidence, for discounting Plaintiff’s testimony. Accordingly, 23 remand is warranted on this issue. 24 II. The Court Declines to Address Plaintiff’s Remaining Argument 25 Having found that remand is warranted, the Court declines to address 26 Plaintiff’s remaining arguments. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 27 2012) (“Because we remand the case to the ALJ for the reasons stated, we decline to 28 reach [plaintiff’s] alternative ground for remand.”); see also Augustine ex rel. 1 Ramirez v. Astrue, 536 F. Supp. 2d 1147 , 1153 n.7 (C.D. Cal. 2008) (“[The] Court 2 need not address the other claims plaintiff raises, none of which would provide 3 plaintiff with any further relief than granted, and all of which can be addressed on 4 remand.”). 5 III. Remand for Further Administrative Proceedings 6 Plaintiff requests that the Court reverse the ALJ’s decision, and remand for 7 immediate payment of benefits. (JS 23.) Plaintiff contends that the there is “no 8 benefit to further administrative proceedings with the [ALJs] who clearly have no 9 intention of considering his subjective statements and testimony under oath regarding 10 his symptoms and limitations.” (JS 24.) In contesting the ALJ’s evaluation of 11 Plaintiff’s testimony, Plaintiff notes that he “has yet to receive a full and fair hearing 12 with proper consideration of his impairments, including the effects of his symptoms 13 and limitations on his ability to perform and persist at full time work activity.” (JS 14 18.) Additionally, Plaintiff notes that his statements regarding his symptoms and 15 limitations have been consistent and reflect “an individual who is not capable of 16 persisting at full time work activity.” (JS 24.) 17 The Commissioner argues that, if the Court finds in favor of Plaintiff, the Court 18 should remand for “further administrative development.” (JS 24.) The 19 Commissioner also contends that “Plaintiff’s request that this Court grant benefits 20 solely based upon his subjective symptom allegations is expressly contrary to the 21 Social Security Act.” (Id.) 22 “Generally when a court . . . reverses an administrative determination, ‘the 23 proper course, except in rare circumstances, is to remand to the agency for additional 24 investigation or explanation.’” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 25 2004) (quoting INS v. Ventura, 537 U.S. 12, 16 , 123 S. Ct. 353 , 154 L. Ed. 2d 272 26 (2002) (per curiam)); King v. Berryhill, No. 8:17-CV-00875-GJS, 2018 WL 27 2328217, at *4 (C.D. Cal. May 22, 2018) (“When the Court reverses an ALJ’s 28 decision for error, the Court ordinarily must remand to the agency for further 1 proceedings.” (internal quotations omitted)). When further administrative review 2 could remedy the ALJ’s errors, remand for further administrative proceedings, rather 3 than an award of benefits, is warranted. See Brown-Hunter, 806 F.3d at 495 . Before 4 ordering remand for an award of benefits, three requirements must be met: (1) the 5 Court must conclude that the ALJ failed to provide legally sufficient reasons for 6 rejecting evidence; (2) the Court must conclude that the record has been fully 7 developed and further administrative proceedings would serve no useful purpose; and 8 (3) the Court must conclude that if the improperly discredited evidence were credited 9 as true, the ALJ would be required to find the claimant disabled on remand. Id. 10 (citations omitted). Even if all three requirements are met, the Court retains 11 flexibility to remand for further proceedings “when the record as a whole creates 12 serious doubt as to whether the claimant is, in fact, disabled within the meaning of 13 the Social Security Act.” Id. (citation omitted). 14 The Court finds that the ALJ failed to provide clear and convincing reasons 15 supported by substantial evidence to discount Plaintiff’s subjective testimony. See 16 supra Section I. However, the Court cannot conclude that the record has been fully 17 developed and that further administrative proceedings would not serve a useful 18 purpose. 19 When “the record raises crucial questions as to the extent of [a claimant’s] 20 impairment given inconsistencies between his testimony and the medical evidence in 21 the record,” the Court cannot conclude that the record has been fully developed and 22 that further administrative proceedings would serve no useful purpose because 23 “[t]hese are exactly the sort of issues that should be remanded to the agency for 24 further proceedings.” Brown-Hunter, 806 F.3d at 495 (quoting Treichler, 775 F.3d 25 at 1105 ) (alteration in original). The Court is required to determine whether “there 26 are outstanding issues requiring resolution before considering whether to hold that 27 the claimant’s testimony is credible as a matter of law.” Id. (quoting Treichler, 775 28 F.3d at 1105) (emphasis in original). Because “[t]he touchstone for an award of 1 benefits is the existence of a disability, not the agency’s legal error,” the Court is not 2 required to credit Plaintiff’s testimony as true solely because the ALJ erred in 3 discounting Plaintiff’s testimony. Id. 4 /// 5 Here, the Court finds that the record raises crucial questions as to the extent of 6 Plaintiff’s impairments due to inconsistencies between his testimony and the medical 7 evidence in the record. For example, Plaintiff testified that he could not grab items 8 and hold them with his right hand. (AR 55, 777-78.) Additionally, he explained that 9 his right arm and hand fall “asleep a lot” when he moves it a lot. (AR 56.) He 10 reported having severe pain in his waist, such that he is unable to walk “too much” 11 or sit down for “too long.” (AR 59.) He also reported using a cane to walk. (AR 12 61-62, 781.) However, Bunsri T. Sophon, M.D., completed an orthopedic evaluation 13 on November 18, 2008, approximately five months after Plaintiff’s date last insured, 14 which resulted in findings that are inconsistent with Plaintiff’s testimony. (See AR 15 388-392.) As to Plaintiff’s station and gait, Dr. Sophon found that there was no 16 evidence of tilt or list and that Plaintiff sat comfortably during the examination. (AR 17 389-90.) Additionally, Plaintiff had no difficulty rising from his chair, presented 18 with a normal gait, and did not use an assistive device to ambulate. (Id.) Plaintiff’s 19 range of motion of his upper and lower extremities was normal. (AR 390-91.) His 20 cervical spine revealed normal curvature and full range of motion. (AR 390.) 21 Plaintiff’s thoracic and lumbar spine examination showed no evidence of tenderness 22 or muscle spasm. (Id.) While the ALJ would not be able to rely solely on Dr. 23 Sophon’s findings to reject Plaintiff’s testimony, the conflict between Dr. Sophon’s 24 findings and Plaintiff’s testimony “create a significant factual conflict in the record 25 that should be resolved through further proceedings on an open record before a proper 26 disability determination can be made by the ALJ in the first instance.” Brown27 Hunter, 806 F.3d at 496 . Accordingly, the Court finds that it would not be 28 appropriate to remand this matter for an immediate award of benefits. 1 The Ninth Circuit has expanded the circumstances under which the credit-as2 true rule can be applied to include situations in which there may be outstanding issues 3 to be resolved. See Vasquez v. Astrue, 572 F.3d 586, 593-94 (9th Cir. 2009) (“[T]here 4 are other factors which may justify application of the credit-as-true rule, even where 5 application of the rule would not result in the immediate payment of benefits.”) The 6 “purpose of the credit-as-true rule is meant to discourage the ALJs from reaching a 7 conclusion about a claimant’s status first, and then attempting to justify it by ignoring 8 any evidence in the record that suggests an opposite result.” Id. at 594 (citing 9 Hammock v. Bowen, 879 F.2d 498, 503 (9th Cir. 1989)). Additionally, the rule is 10 meant to “ensure[s] that pain testimony is carefully assessed, and helps prevent 11 unnecessary duplication in the administrative process.” Id.; Baltazar v. Berryhill, 12 No. CV 16-8132-E, 2017 WL 2369363 , at *7 (C.D. Cal. May 31, 2017). 13 In Vasquez, the Ninth Circuit found that based on the claimant’s advanced age 14 and the severe delay in obtaining a resolution it was appropriate to apply the credit15 as-true rule. 572 F.3d at 593-94 . There the claimant was 58 years old and her claim 16 had been pending for approximately seven years. Id.; see also Hammock, 879 F.2d 17 at 500, 503 (finding that due to claimant’s age, 57 years old at the time of hearing, 18 and the fact that her claim had been pending at least eight years the ALJ must credit 19 her testimony as true on remand); Sanchez v. Berryhill, No. EDCV 16-1774-FMO20 MRW, 2018 WL 4694349 , at *9 (C.D. Cal. July 19, 2018) (ordering the ALJ to credit 21 as true where claimant was 52 years old and his claim was pending for six years). 22 Here, the Court recognizes that there has been a severe delay in obtaining a 23 resolution. Plaintiff filed his application more than seven years ago on July 26, 2012. 24 (AR 209, 216.) This delay falls squarely within the Ninth Circuit’s precedent. 25 However, unlike the claimants in Vasquez and Hammock, Plaintiff does not fall 26 within the advanced age category. The advanced age category consists of people 27 who are 55 years or older. Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068 , 28 1069 (9th Cir. 2010) (“Social security regulations divide claimants into three age 1 categories: younger persons (those persons under age 50), persons closely 2 approaching advanced age (those persons age 50–54), and persons of advanced age 3 (those persons age 55 or older).”) (citing 20 C.F.R. § 404.1563 (c)–(e)). Plaintiff was 4 33 years old on his date last insured, 38 at the time of his first hearing, and 43 at the 5 time of his second hearing. (See AR 47-77, 78, 748-92.) Because, Plaintiff does not 6 fall within the advanced age category, Vasquez and Hammock are inapplicable. See [7] 572 F.3d at 593-94 ; 879 F.2d at 500, 503; but see New ex rel. JNJ v. Colvin, 31 F. 8 Supp. 3d 1120, 1129 (E.D. Wash. 2014) (“Claimant’s young age and delay of more 9 than six years from the date of the application make it appropriate for this Court to 10 use its discretion and apply the ‘credit as true’ doctrine pursuant to Ninth Circuit 11 precedent.”). 12 While the Court gives significant consideration to the fact that Plaintiff’s claim 13 has been pending for more than seven years and that the matter has been remanded 14 twice, it is unclear that these facts taken together, or on their own, require this Court 15 to instruct the ALJ to credit Plaintiff’s testimony as true on remand. While the seven16 year delay is severe, the effect of the delay is not compounded by Plaintiff’s age. As 17 to the multiple remands, the Court is “mindful of the often painfully slow process by 18 which disability determinations are made, and that a remand for further evidentiary 19 proceedings (and the possibility of further appeal) could result in substantial, 20 additional delay.” Giddings v. Astrue, 333 F. App’x 649, 655 (2d Cir. 2009). 21 However, the Court does not find, and Plaintiff does not point to, a rule requiring that 22 evidence be credited as true after multiple remands. Moreover, courts have found 23 remand for further proceedings to be appropriate, notwithstanding the fact that the 24 matter had been previously remanded twice. See Francia v. Astrue, No. CV 0925 07519-MAN, 2010 WL 4553438 , at *10 & n. 15 (C.D. Cal. Nov. 3, 2010) (finding 26 “remand is the appropriate remedy to allow the ALJ the opportunity to remedy the . 27 . . deficiencies and errors,” where the court was remanding for a third time). 28 /// 1 Because the record as a whole, for the reasons discussed above, creates serious 2 || doubt as to whether the Plaintiff is, in fact, disabled within the meaning of the Social 3 || Security Act, the Court exercises its discretion and remands for further proceedings. 4 || See Brown-Hunter, 806 F.3d at 495 . 5 On remand, the ALJ shall reassess Plaintiff’s testimony regarding his 6 || Symptoms and limitations, and either credit his testimony as true, or provide specific, 7 || clear and convincing reasons, supported by substantial evidence in the case record, g || for discounting or rejecting any testimony. Next, based on the reevaluation of 9 || Plaintiff's subjective symptom testimony, and considered in light of the medical 10 || evidence of record, the ALJ shall reassess Plaintiffs RFC. Finally, the ALJ shall 11 || proceed through step four and, if warranted, step five to determine, whether Plaintiff 12 || can perform his past relevant work or any other work existing in significant numbers 13 || in the regional and national economies. 14 Because the matter is now being remanded for a third time, “the Court directs 15 || that this matter be dealt with in an expeditious manner to avoid unnecessary delay 16 || and further potential prejudice to [P]laintiff.”” Francia, 2010 WL 4553438 , at *10. 17 | IV. CONCLUSION 18 IT IS ORDERED that Judgment shall be entered REVERSING the decision of 19 || the Commissioner denying benefits and REMANDING the matter for further 29 || proceedings consistent with this Order. 71 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this 92 || Order and the Judgment on counsel for both parties. . 93 || DATED: February 28, 2020 Rayehin a, ROZELLA A. OLIVER UNITED STATES MAGISTRATE JUDGE [25] 26 NOTICE 97 || THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE.