Lourdes Castellanos v. Andrew Saul

[8] UNITED STATES DISTRICT COURT [9] CENTRAL DISTRICT OF CALIFORNIA [10] 11 LOURDES C.,1 Case No. 8:19-cv-01531-JC 12 Plaintiff, MEMORANDUM OPINION AND 13 v. ORDER OF REMAND [14] ANDREW SAUL, Commissioner of 15 Social Security Administration, 16 Defendant. [17] 18 I. SUMMARY 19 On August 7, 2019, plaintiff filed a Complaint seeking review of the 20 Commissioner of Social Security’s denial of plaintiff’s application for benefits. 21 The parties have consented to proceed before the undersigned United States 22 Magistrate Judge. 23 This matter is before the Court on the parties’ cross motions for summary 24 judgment, respectively “Plaintiff’s Motion” and “Defendant’s Motion” [26] 27 1Plaintiff’s name is partially redacted to protect her privacy in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court 28 Administration and Case Management of the Judicial Conference of the United States. [1] 1 (collectively “Motions”). The Court has taken the Motions under submission 2 without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; Case Management 3 Order ¶ 5. 4 Based on the record as a whole and the applicable law, the decision of the 5 Commissioner is REVERSED AND REMANDED for further proceedings 6 consistent with this Memorandum Opinion and Order of Remand 7 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 8 DECISION 9 On October 14, 2017, plaintiff filed applications for Supplemental Security 10 Income and Disability Insurance Benefits alleging disability beginning on 11 March 31, 2017, due to stage-three bladder cancer and depression. 12 (Administrative Record (“AR”) 165-66, 169-70, 205). An Administrative Law 13 Judge (“ALJ”) subsequently examined the medical record and heard testimony 14 from plaintiff (who was represented by counsel) and a vocational expert. (AR 3015 52). 16 On March 4, 2019, the ALJ determined that plaintiff was not disabled 17 through the date of the decision. (AR 25). Specifically, the ALJ found: 18 (1) plaintiff suffered from the following severe impairments: bladder cancer status 19 post resection, cystectomy, and placement of Indiana pouch (AR 20); 20 (2) plaintiff’s impairments, considered individually or in combination, did not 21 meet or medically equal a listed impairment (AR 20); (3) plaintiff retained the 22 following residual functional capacity: 23 [Plaintiff can] lift or carry twenty pounds occasionally and ten pounds 24 frequently; stand or walk, with normal breaks, for six hours and sit, 25 with normal breaks, for six hours in an eight-hour workday; 26 occasionally perform postural activities but never crawl or climb 27 ladders, ropes, or scaffolds; and never work at unprotected heights or 28 around moving, dangerous machinery. [2] 1 (AR 20); (4) plaintiff could perform her past relevant work as a quality control 2 inspector (AR 25); and (5) plaintiff’s statements regarding the intensity, 3 persistence, and limiting effects of subjective symptoms were not entirely 4 consistent with the medical evidence and other evidence in the record (AR 24). 5 On June 5, 2019, the Appeals Council denied plaintiff’s application for 6 review. (AR 1-3). 7 III. APPLICABLE LEGAL STANDARDS 8 A. Administrative Evaluation of Disability Claims 9 To qualify for disability benefits, a claimant must show that she is unable 10 “to engage in any substantial gainful activity by reason of any medically 11 determinable physical or mental impairment which can be expected to result in 12 death or which has lasted or can be expected to last for a continuous period of not 13 less than 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) 14 (quoting 42 U.S.C. § 423 (d)(1)(A)) (internal quotation marks omitted); 20 C.F.R. 15 §§ 404.1505(a), 416.905. To be considered disabled, a claimant must have an 16 impairment of such severity that she is incapable of performing work the claimant 17 previously performed (“past relevant work”) as well as any other “work which 18 exists in the national economy.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 19 1999) (citing 42 U.S.C. § 423 (d)). 20 To assess whether a claimant is disabled, an ALJ is required to use the five21 step sequential evaluation process set forth in Social Security regulations. See 22 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006) 23 (describing five-step sequential evaluation process) (citing 20 C.F.R. §§ 404.1520 , 24 416.920). The claimant has the burden of proof at steps one through four – i.e., 25 determination of whether the claimant was engaging in substantial gainful activity 26 (step 1), has a sufficiently severe impairment (step 2), has an impairment or 27 combination of impairments that meets or medically equals one of the conditions 28 listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings”) (step 3), and [3] 1 || retains the residual functional capacity to perform past relevant work (step 4). 2 || Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted). The 3 || Commissioner has the burden of proof at step five — 7.e., establishing that the 4 || claimant could perform other work in the national economy. Id. “If the ALJ 5 || determines that a claimant is either disabled or not disabled at any step in the 6 || process, the ALJ does not continue on to the next step.” Bray v. Comm’r of Soc. 7 | Sec. Admin., 554 F.3d 1219, 1226 (9th Cir. 2009) (citing 20 C.F.R. 8 || § 416.920(a)(4)). 9 B. Federal Court Review of Social Security Disability Decisions 10 A federal court may set aside a dental of benefits only when the 11 || Commissioner’s “final decision” was “based on legal error or not supported by 12 || substantial evidence in the record.” 42 U.S.C. § 405 (g); Trevizo v. Berryhill, 871 13 | F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The 14 || standard of review in disability cases is “highly deferential.” Rounds v. Comm’r 15 || of Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015) (citation and quotation 16 || marks omitted). Thus, an ALJ’s decision must be upheld if the evidence could 17 || reasonably support either affirming or reversing the decision. Trevizo, 871 F.3d at 18 || 674-75 (citations omitted). Even when an ALJ’s decision contains error, it must 19 || be affirmed if the error was harmless. See Treichler v. Comm’r of Soc. Sec. 20 | Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (ALJ error harmless if 21 | (1) inconsequential to the ultimate nondisability determination; or (2) ALJ’s path 22 || may reasonably be discerned despite the error) (citation and quotation marks 23 || omitted). 24 Substantial evidence is “such relevant evidence as a reasonable mind might 25 || accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (defining 26 || “substantial evidence” as “more than a mere scintilla, but less than a 27 || preponderance’) (citation and quotation marks omitted). When determining 28 || whether substantial evidence supports an ALJ’s finding, a court “must consider the 1 || entire record as a whole, weighing both the evidence that supports and the 2 || evidence that detracts from the Commissioner’s conclusion[.]” Garrison v. 3 || Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted). 4 Federal courts review only the reasoning the ALJ provided, and may not 5 || affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.” 6 || Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need 7 || not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s 8 || reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin, 9 || 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099 ). 10 A reviewing court may not conclude that an error was harmless based on 11 || independent findings gleaned from the administrative record. Brown-Hunter, 806 12 || F.3d at 492 (citations omitted). When a reviewing court cannot confidently 13 || conclude that an error was harmless, a remand for additional investigation or 14 | explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170 , 1173 15 | (9th Cir. 2015) (citations omitted). 16], IV. DISCUSSION 17 Plaintiff argues that the ALJ erred by failing to provide specific and 18 || convincing reasons to discredit plaintiffs statements and testimony. (Plaintiff's 19 || Motion at 5-9). Defendant argues that the ALJ’s reasons are proper and sufficient. 20 || (Defendant’s Motion at 1-7). 21 For the reasons stated below, the Court finds that the ALJ erred in 22 || discounting plaintiff's testimony. Since the Court cannot find that the error was 23 || harmless, a remand is warranted. 24 A. Pertinent Law 25 When determining disability, an ALJ is required to consider a claimant’s 26 || impairment-related pain and other subjective symptoms at each step of the 27 || sequential evaluation process. 20 C.F.R. §§ 404.1529 (a), (d). Accordingly, when 28 || a claimant presents “objective medical evidence of an underlying impairment 1 || which might reasonably produce the pain or other symptoms [the claimant] 2 || alleged,” the ALJ is required to determine the extent to which the claimant’s 3 || statements regarding the intensity, persistence, and limiting effects of his or her 4 || subjective symptoms (“subjective statements” or “subjective complaints”) are 5 || consistent with the record evidence as a whole and, consequently, whether any of 6 || the individual’s symptom-related functional limitations and restrictions are likely 7 || to reduce the claimant’s capacity to perform work-related activities. 20 C.F.R. §§ 8 || 404.1529(a), (c)(4); SSR 16-3p, 2017 WL 5180304 , at *4-10.2, When an 9 || individual’s subjective statements are inconsistent with other evidence in the 10 || record, an ALJ may give less weight to such statements and, in turn, find that the 11 || individual’s symptoms are less likely to reduce the claimant’s capacity to perform 12 || work-related activities. See SSR 16-3p, 2017 WL 5180304 , at *8. In such cases, 13 || when there is no affirmative finding of malingering, an ALJ may “reject” or give 14 || less weight to the individual’s subjective statements “only by providing specific, 15 | clear, and convincing reasons for doing so.” Brown-Hunter, 806 F.3d at 488-89 .’ 16 || This requirement is very difficult to satisfy. See Trevizo, 871 F.3d at 678 (“The 17 /// 18 aH 19 *Social Security Ruling 16-3p superseded SSR 96-7p and, in part, eliminated use of the term “credibility” from SSA “sub-regulatory policy[]” in order to “clarify that subjective 20 || symptom evaluation is not an examination of an individual’s [overall character or truthfulness] . . a1 [and] more closely follow [SSA] regulatory language regarding symptom evaluation.” See SSR 16-3p, 2017 WL 5180304 , at *1-*2, *10-*11. The SSA subsequently republished SSR 16-3p 22 || making no change to the substantive policy interpretation regarding evaluation of a claimant’s subjective complaints, but clarifying that the SSA would apply SSR 16-3p only “[when making] 23 determinations and decisions on or after March 28, 2016[,]” and that federal courts should apply 94 || “the rules [regarding subjective symptom evaluation] that were in effect at the time” an ALJ’s 5 decision being reviewed became final. SSR 16-3p, 2017 WL 5180304 , at *1, *13 n.27. [5] 6 *It appears to this Court, based upon its research of the origins of the requirement that there be “specific, clear and convincing” reasons to reject or give less weight to an individual’s 27 || subjective statements absent an affirmative finding of malingering, that such standard of proof remains applicable even when SSR 16-3p governs. See Trevizo, 871 F.3d at 678-79 & n.5 28 (citations omitted). 1 || clear and convincing standard is the most demanding required in Social Security 2 || cases.”) (citation and quotation marks omitted). 3 An ALJ’s decision “must contain specific reasons” supported by substantial 4 || evidence in the record for giving less weight to a claimant’s statements. SSR 165 || 3p, 2017 WL 5180304 , at *10. An ALJ must clearly identify each subjective 6 || statement being rejected and the particular evidence in the record which 7 || purportedly undermines the statement. Treichler, 775 F.3d at 1103 (citation 8 || omitted). Unless there is affirmative evidence of malingering, the Commissioner’s 9 || reasons for rejecting a claimant’s testimony must be “clear and convincing.” 10 || Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (internal quotation marks 11 || omitted), as amended (Apr. 9, 1996). “General findings are insufficient[.]” 12 || Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citations omitted). 13 If an ALJ’s evaluation of a claimant’s statements is reasonable and is 14 || supported by substantial evidence, it is not the court’s role to second-guess it. See 15 || Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted). When 16 | an ALJ fails properly to discuss a claimant’s subjective complaints, however, the 17 || error may not be considered harmless “unless [the Court] can confidently conclude 18 || that no reasonable ALJ, when fully crediting the testimony, could have reached a 19 || different disability determination.” Stout, 454 F.3d at 1056 ; see also Brown20 || Hunter, 806 F.3d at 492 (ALJ’s erroneous failure to specify reasons for rejecting 21 || claimant testimony “will usually not be harmless’’). 22 B. Plaintiff’s Testimony 23 At the hearing on February 7, 2019, plaintiff's counsel explained that 24 || plaintiff had her bladder removed due to cancer and currently relies on a catheter. 25 || (AR 33). 26 Plaintiff testified to the following: She experiences discomfort from the 27 || catheter that protrudes from her abdomen near her hip, and sitting for prolonged 28 || periods causes numbness. (AR 35). She could sit thirty to sixty minutes, 1 depending on whether she has to use the restroom. (AR 37). She needs to stand 2 up to relieve the symptoms, but standing for longer than about ten minutes without 3 evacuating becomes “very, very uncomfortable.” (AR 35-36). She can walk 4 slowly. (AR 37). She lies down throughout the day because of fatigue. (AR 39). 5 Her catheter sometimes leaks when she leans or lies on the wrong side. (AR 39). 6 Since the surgery, she has not left the house for much except appointments. (AR 7 37-38). Her sister helps with chores such as cleaning and carrying groceries. (AR 8 38). 9 Plaintiff further testified: She has to use the restroom frequently, about 10 seven or eight times in an average day, depending on how much liquid she drinks. 11 (AR 40-42). She needs to drink liquids to keep her kidneys functioning properly. 12 (AR 40-41). Whenever she uses the bathroom, she also has to rinse out and 13 lubricate the catheter before reinserting it, a process that requires enough counter 14 space and a fairly hygienic restroom. (AR 41-42). She spends about thirteen to 15 twenty-five minutes in the restroom each time.4 (AR 44). 16 C. ALJ’s Findings 17 In the decision, the ALJ reviewed plaintiff’s allegations and testimony and 18 stated that “[d]espite [plaintiff’s] allegations, the evidence in the record supports 19 the above residual functional capacity.” (AR 21). Following this statement, the 20 ALJ reviewed the medical evidence and opinions but made only scant references 21 to plaintiff’s statements (see AR 21-24), until providing the following general 22 assessment: 23 [Plaintiff’s] allegations of generally disabling symptoms and 24 limitations are not corroborated by the evidence in the record detailed [26] 4Similarly, plaintiff stated on a disability report that she needs “to catherize [sic] every 2 27 ½ to 3 hrs,” and it “takes [her] more than 20 minutes to empty [her] bladder ever 2 ½ to 3 hrs,” for which she requires “a surface long enough to place supplies which include catheter, syringe to 28 rinse catheter, lubricant gel gauze [and] steril[e] water.” (AR 228). [8] 1 above. As discussed, despite the surgeries and procedures related to 2 [plaintiff’s] bladder cancer, there is insufficient evidence – such as 3 documentation of persistent fatigue or weakness or symptomatology – 4 to support greater functional limitations than those included in the 5 above residual functional capacity; and, while the claimant describes 6 greater urinary frequency, none of the medical opinions in the record 7 (including Dr. Hugen’s determination) specifically included relevant 8 accommodations. 9 Accordingly, after careful consideration of the evidence, the 10 undersigned finds that [plaintiff’s] medically determinable 11 impairment could reasonably be expected to cause the alleged 12 symptoms; however, her statements concerning the intensity, 13 persistence, and limiting effects of these symptoms are not entirely 14 consistent with the medical evidence and other evidence in the 15 record discussed above. 16 (AR 24). 17 D. Analysis 18 The ALJ failed to provide specific, clear and convincing reasons to discount 19 plaintiff’s testimony. Instead, the ALJ essentially based his assessment on a lack 20 of objective evidence, which cannot, by itself, support an adverse finding about 21 Plaintiff’s testimony. See Trevizo, 871 F.3d at 679 (once a claimant demonstrates 22 medical evidence of an underlying impairment, “an ALJ ‘may not disregard [a 23 claimant’s testimony] solely because it is not substantiated affirmatively by 24 objective medical evidence.’”) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 25 880, 883 (9th Cir. 2006)). 26 Furthermore, by offering only a general assessment with respect to 27 plaintiff’s statements, the ALJ failed to specifically identify which evidence 28 undermines which of her allegations. See Parra v. Astrue, 481 F.3d 742, 750 (9th [9] 1 Cir. 2007) (ALJ must “specifically identify ‘what testimony is not credible and 2 what evidence undermines [Plaintiff’s] complaints.’”) (quoting Lester, 81 F.3d at 3 834), cert. denied, 552 U.S. 1141 (2008); Smolen v. Chater, 80 F.3d 1273 , 1284 4 (9th Cir. 1996) (“The ALJ must state specifically what symptom testimony is not 5 credible and what facts in the record lead to that conclusion”). This leaves it 6 unclear whether the ALJ sufficiently considered plaintiff’s testimony in light of 7 the record overall. For example, the ALJ rejected plaintiff’s testimony about the 8 frequency and duration of her bathroom use because the medical opinions did not 9 include relevant accommodations. (AR 24). However, Dr. Bahaa Girgis, M.D., 10 the consultative examiner, noted plaintiff’s report of frequent, lengthy bathroom 11 use, and also opined that plaintiff required “frequent stops of 10 minutes per hour 12 if necessary.” (AR 1965, 1969). While the ALJ rejected this accommodation 13 because there was “little medical evidence to substantiate” it, and Dr. Girgis did 14 not “specifically explain” it (AR 24), the ALJ does not appear to have considered 15 whether it supported plaintiff’s testimony. Moreover, although the ALJ noted that 16 plaintiff’s treating oncologist, Dr. Hugen, indicated in April 2018 that plaintiff 17 “had no problems with catheterization” (AR 23) (citing AR 1984-86), the ALJ did 18 not explain how that general observation conflicts with plaintiff’s account of her 19 routine, frequent need to use the bathroom to empty the pouch and rinse and 20 lubricate the catheter. 21 Accordingly, the ALJ erred by failing to articulate clear and convincing 22 reasons to discount plaintiff’s statements. The record does not demonstrate that 23 this error was harmless. Accordingly, remand is appropriate so the ALJ may 24 reassess plaintiff’s subjective statements.5 [26] 27 5The Court need not, and has not adjudicated plaintiff’s other challenges to the ALJ’s decision, except insofar as to determine that a reversal and remand for immediate payment of 28 benefits would not be appropriate. [10] 1 V. CONCLUSION 2 For the foregoing reasons, the decision of the Commissioner of Social 3 Security is REVERSED in part, and this matter is REMANDED for further 4 administrative action consistent with this Opinion.6 5 LET JUDGMENT BE ENTERED ACCORDINGLY. 6 DATED: May 25, 2020 7 ______________/s/___________________ Honorable Jacqueline Chooljian [8] UNITED STATES MAGISTRATE JUDGE [26] 6When a court reverses an administrative determination, “the proper course, except in rare 27 circumstances, is to remand to the agency for additional investigation or explanation.” INS v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted); Treichler, 775 F.3d at 1099 28 (noting such “ordinary remand rule” applies in Social Security cases) (citations omitted).