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Simmons v. Astrue


August 18, 2009


The opinion of the court was delivered by: Frederick F. Mumm United States Magistrate Judge


Plaintiff brings this action seeking to overturn the decision of the Commissioner of the Social Security Administration denying his application for a period of disability and disability insurance benefits. On March 21, 2008 and April 8, 2008, plaintiff and defendant, respectively, consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Pursuant to the case management order entered on March 3, 2008 and the Court's August 6, 2008 order granting an extension of time, on December 3, 2008, the parties filed a Joint Stipulation detailing each party's arguments and authorities. The Court has reviewed the administrative record (the "AR"), filed by defendant on September 29, 2008, and the Joint Stipulation (the "JS"). For the reasons stated below, the decision of the Commissioner is reversed and remanded for further proceedings.


On April 29, 2005, plaintiff applied for a period of disability and disability insurance benefits. (AR 59-63.) Plaintiff's claims were denied initially and upon reconsideration. (AR 44-48, 52-56.) Plaintiff filed a request for a hearing before an administrative law judge (the "ALJ"). (AR 43.) The record indicates that plaintiff filed an application for Supplemental Security Income benefits on February 10, 2006; the claim was escalated to the hearing level. (See AR 12.) ALJ Lowell Fortune held a hearing on February 28, 2007. (AR 194-226.)

On March 13, 2007, the ALJ issued a decision awarding benefits for the closed period of November 11, 2004 through May 23, 2006.*fn1 (AR 12-20.) The ALJ found that plaintiff's disability ended on May 24, 2006. (AR 20.) On May 16, 2007, plaintiff sought review of the decision before the Social Security Administration Appeals Council. (AR 6-7.) The Council denied plaintiff's request for review on January 24, 2008. (AR 3-5.)

Plaintiff filed his complaint herein on February 28, 2008.


Plaintiff raises two issues in this action:

1. Whether the ALJ properly considered plaintiff's subjective complaints; and

2. Whether the ALJ properly considered the treating physician's opinion.


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed. 2d 842 (1971); Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. This Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible to more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984). However, even if substantial evidence exists in the record to support the Commissioner's decision, the decision must be reversed if the proper legal standard was not applied. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1014-15 (9th Cir. 2003).


A. Plaintiff's Subjective Complaints

Plaintiff testified at the hearing that he had not looked for work because of the swelling and pain in his ankles, which prevented him from moving around. (AR 210.) Plaintiff also testified that he could sit for approximately an hour at a time, but still suffered from constant pain and swelling that required him to elevate his ankle or get up and move around. (AR 210-11.) Plaintiff further testified that, although he could stand for about 10 minutes, after doing so he would have to rest for about 20 minutes and elevate his ankles before standing up again. (AR 211.)

Plaintiff contends that the ALJ did not consider any of this testimony and did not provide legally sufficient reasons for implicitly rejecting it. (JS 3-4.) The Court agrees. As plaintiff asserts (id.), once a claimant produces medical evidence of an underlying impairment that is reasonably likely to cause allegedly disabling symptoms, medical findings are not required to support the symptoms' alleged severity. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991); see also Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) ("[B]ecause a claimant need not present clinical or diagnostic evidence to support the severity of his pain . . . , a finding that the claimant lacks credibility cannot be premised wholly on a lack of medical support for the severity of his pain") (internal citation omitted); Byrnes v. Shalala, 60 F.3d 639, 641-42 (9th Cir. 1995) (applying Bunnell to subjective physical complaints). However, an ALJ may reject a claimant's allegations upon: (1) finding evidence of malingering; or (2) providing clear and convincing reasons for so doing. Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003).

The following factors may be considered in weighing the claimant's credibility in the absence of evidence of malingering: (1) his reputation for truthfulness; (2) inconsistencies either in the claimant's testimony or between the claimant's testimony and his conduct; (3) his daily activities; (4) his work record; and (5) testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which he complains. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); see also 20 C.F.R. §§ 404.1529(c), 416.929(c); Social Security Ruling 96-7p, 1996 WL 374186 (S.S.A.). The ALJ may also use "ordinary techniques of credibility evaluation." Thomas, 278 F.3d at 960. "General findings are insufficient." Reddick v. Chater, 157 F.3d 715, 722 (1998). The ALJ must state which testimony is not credible and identify the evidence that undermines the plaintiff's complaints. Id.; Benton, 331 F.3d at 1041. The ALJ's credibility determination is entitled to deference if his reasoning is supported by substantial evidence in the record and is "sufficiently specific to allow a reviewing court to conclude the adjudicator rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit a claimant's testimony . . . ." Bunnell, 947 F.2d at 345 (internal quotation marks omitted).

Here, plaintiff produced evidence, and the ALJ found, that plaintiff had the severe, medically-determinable impairment of status post-fracture of both ankles with right ankle osteomyelitis. (See AR 15-16.) The ALJ found, however, that plaintiff was not entirely credible regarding his subjective symptoms as they existed on May 24, 2006 and afterwards. The ALJ noted that plaintiff testified that he must elevate his right ankle all day to keep it from swelling. The ALJ discounted this testimony on the ground that plaintiff's treating records did not reflect any complaint of swollen ankles and did not prescribe elevating the leg. The ALJ further noted that the residual functioning capacity form prepared by plaintiff's treating physician (discussed infra) did not mention swollen ankles or elevating the leg. (AR 18; see AR 127, 128-89.)

The ALJ further noted that plaintiff testified that he was discharged from care in May of 2006 and that the medical record ended on May 24, 2006. As the ALJ noted, plaintiff's treating record from that date indicated that plaintiff was doing well, was sore at times, and had only occasional increased pain. There was no pain with palpitation. In addition, treating notes from March 01, 2006*fn2 indicated that plaintiff had no erythema and was doing well. (AR 18; AR 127, 128.)

In sum, the ALJ found that plaintiff's complaints of swelling and the need to elevate his leg were unbelievable because they were not supported by objective evidence in the medical record. This was an insufficient reason to discount plaintiff's testimony. Although weak objective evidence may undermine claims of disabling subjective symptoms (see Tidwell v. Apfel, 161 F.3d 599, 601-02 (9th Cir. 1998)), an ALJ may not premise the rejection of the claimant's testimony regarding subjective symptoms solely on the lack of medical support (Light, 119 F.3d at 792; Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995), limited on other grounds, Saelee v. Chater, 94 F.3d 520, 523 (9th Cir. 1996)). In addition, the ALJ did not discuss plaintiff's complaint of constant pain. (See AR 18-19.)

Defendant argues that the ALJ was not required to believe plaintiff's allegations and that the ALJ was entitled to determine questions of credibility and resolve conflicts in the testimony. Defendant further contends that the ALJ provided a reasonable, record-supported interpretation of plaintiff's credibility and the Court must thus uphold it. (JS 5-8 (citing, inter alia, Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001)).) These arguments are unavailing. Even if the ALJ's rationale for discounting a plaintiff's testimony finds factual support in the record, the rationale itself must still be legally sufficient. Moreover, "[a] reviewing court should not be forced to speculate as to the grounds for an adjudicator's rejection of a claimant's allegations of disabling pain." Bunnell, 947 F.2d at 346. The Court can only guess as to why the ALJ implicitly rejected plaintiff's complaint of constant pain; thus, remand is warranted.

The Court therefore remands this action for the ALJ to give further consideration to the subjective complaints identified above. If the ALJ decides to reject them, he must state which testimony is not credible and identify the clear and convincing evidence*fn3 that undermines plaintiff's complaints, without relying solely on a lack of objective medical evidence. Reddick, 157 F.3d at 722.

B. The Treating Physician's Opinion

In his decision, the ALJ discounted the opinion of plaintiff's treating physician, Brian Yost, M.D.,*fn4 as follows:

I do not give great weight to the Medical Opinion Re: Ability to Do Work-Related Activities (Physical) at Exhibit 8F. The form states that [plaintiff] could stand less than 2 hours out of an 8-hour period and sit less than 2 hours, but [plaintiff] testified that out of an 8-hour period, he can stand 3 hours and sit for 5 hours. The form indicates, "using cane for ambulation," but the doctor's chart notes reveal he felt [plaintiff's] condition was good enough on March 1, 2006 to tell [plaintiff] to discontinue use of the cane as tolerated (Exhibit 7F, p.3). The form says that [plaintiff can only sit for 10 minutes before changing position (Exhibit 8F, p.3); yet, [plaintiff] testified that he can sit for 60 minutes at a time. The doctor who completed the form stated that [claimant] has to lie down twice in an 8-hour work shift, but [plaintiff] did not testify that he has to lie down at all. (AR 18-19.)

Plaintiff contends that the ALJ failed to give proper consideration to Dr. Yost's other findings. The Court agrees. In evaluating physicians' opinions, the case law and regulations distinguish among three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither treat nor examine the claimant (non-examining physicians). Lester, 81 F.3d at 830; see also 20 C.F.R. §§ 404.1502, 416.902, 404.1527(d), 416.927(d). As a general rule, more weight should be given to the opinion of a treating source than to the opinion of doctors who do not treat the claimant. Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987); see also 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2).

An ALJ may reject a treating physician's uncontradicted opinion on a medical impairment or the ultimate issue of disability only with "clear and convincing" reasons supported by substantial evidence in the record. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (quoting Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993)) (internal quotation marks omitted). If the treating physician's opinion is controverted, the ALJ must still provide "specific and legitimate" reasons supported by substantial evidence in the record in order to reject the treating physician's opinion. Lester, 81 F.3d at 830; Holohan v. Massanari, 246 F.3d 1195, 1202-03 (9th Cir. 2001). "The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Magallenes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (internal quotation marks omitted).

Here, in addition to the findings the ALJ rejected, Dr. Yost opined, in pertinent part, that plaintiff had to shift at will from standing and walking and could never twist, stoop, or crouch. Dr. Yost further opined that plaintiff had to avoid concentrated exposure to wetness, humidity, and extreme heat. In addition, plaintiff's impairment would affect his ability to push and pull. Finally, Dr. Yost opined that plaintiff would miss work more than three times a month. (AR 191-93.) The state agency physician contradicted Dr. Yost's finding that plaintiff's impairment affected his ability to push and pull. (AR 117.) Samuel Landau, M.D., the medical expert who testified at the hearing, contradicted the other findings at issue, in that he did not find that they applied to plaintiff. (See AR 204-05.) Thus, the ALJ was required to provide specific, legitimate reasons, supported by substantial record evidence, for implicitly rejecting them.*fn5 Lester, 81 F.3d at 830; see also Smolen v. Chater, 80 F.3d 1273, 1286 (9th Cir. 1996) (ALJ implicitly rejects doctor's opinion where he ignores it and makes contrary findings).

Defendant contends that the limitations at issue were inconsistent with plaintiff's testimony and, as noted, were contradicted by Dr. Landau's opinion. Defendant further contends that substantial evidence supports the ALJ's determination of plaintiff's residual functioning capacity. (JS 11-12.) However, the Court may not affirm the Commissioner's decision on grounds upon which the ALJ did not rely in reaching his decision. Tommasetti v. Astrue, 533 F.3d 1035, 1039 n.2 (9th Cir. 2008); see also Pinto v. Massanari, 249 F.3d 840. 847 (9th Cir. 2001). As the ALJ did not cite plaintiff's testimony or Dr. Landau's opinion as factors in his rejection of the findings at issue, the Court may not affirm the decision on those grounds. In addition, an ALJ may not ignore competent evidence in the record in order to justify his conclusion. See Gallant, 753 F.2d at 1456; see also Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (ALJ must explain why "significant probative evidence has been rejected"). The findings at issue were sufficiently probative of plaintiff's ability to function in the workplace that the ALJ's failure to discuss them was reversible error.

Thus, remand is required for the ALJ to consider further the above-cited findings in Dr. Yost's opinion. If the ALJ again chooses to reject them, he must provide specific, legitimate reasons, supported by substantial evidence in the record, for so doing. Lester, 81 F.3d at 830.


For the foregoing reasons, the judgment of the Commissioner is reversed and remanded for further proceedings consistent with this opinion.


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