UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
November 10, 2009
GILBERTO CALDERON, PLAINTIFF,
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT
Plaintiff Gilberto Calderon ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits pursuant to Title II of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Gary S. Austin, United States Magistrate Judge.*fn1
FACTS AND PRIOR PROCEEDINGS*fn2
On or about July 18, 2005, Plaintiff filed an application alleging disability since April 4, 2005, due to torn meniscus in both knees. AR 95-96. His application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 6, 9-14. ALJ Edward D. Steinman held a hearing on December 12, 2007 , and issued an order denying benefits on January 15, 2008. AR 15-21, 241-62. On May 22, 2008, the Appeals Council denied review. AR 3-5.
ALJ Steinman held a hearing on December 12, 2007, in Bakersfield, California. Plaintiff appeared and was represented by Rosemary Abarca. Plaintiff was assisted by a Spanish language interpreter. Vocational Expert ("VE") Kenneth Ferra also provided testimony. AR 241.*fn3
Plaintiff has not worked since April 4, 2005. He previously worked as a laborer in the oil fields and as a machine operator or puller in a lumber mill. AR 245.
Plaintiff currently suffers from bilateral knee pain. The pain is constant and he takes Tylenol once or twice a week to treat the pain. AR 245-46. He can stand for about twenty minutes before his knees become swollen and he has difficulty walking. AR 247. Plaintiff was using a cane for assistance and used a brace on the right knee everyday. He was scheduled for surgery on the left knee in January of 2008. AR 247. Plaintiff testified that he can sit for about twenty minutes before needing to move around. AR 252-53. He has been using the cane for about two years, and does so everyday. AR 253.
With regard to medication other than Tylenol, Plaintiff indicated that after his surgery the pain medication he was taking affected his "nerves" and body and that it took six or seven months "to get [his] regularity back." AR 253. He receives injections in both knees after talking to his doctor about the pain medication, and the injections are to last six months. However, the first injection lasted only four months, and he finds that the effect wears off after three or four months. AR 253-54.
Plaintiff has to move or elevate his legs every twenty to thirty minutes or so or "they get stuck." Further, he will lie down for thirty to forty minutes at a time before getting up. AR 254-55. His sleep is disturbed because when he moves during sleep and his knees pop, it causes him to lie awake for two to three hours. AR 255.
Approximately ten pounds is the weight Plaintiff could carry without increasing the pain in his knees. AR 255. He denied telling a doctor that he was able to pick up and carry fifty pounds. AR 255-56. Overall, Plaintiff's knee problems are worsening. AR 256. As a result, he can no longer work eight hours a day, five days a week. AR 256.
Asked whether he could converse in English, Plaintiff indicated that he is able to speak "[a] little of the basics," but he speaks the language better than he comprehends it. AR 247. He spoke Spanish in his prior position because he frequently worked with others who spoke Spanish. AR 248. He does speak English with his children at home, for example, asking his daughter how she is doing in school, whether there were any problems at school and about homework. AR 248. When Plaintiff goes to the store he can speak to the cashier in English if "it is something easy," but if he needs something more than basic conversation permits, he cannot communicate in English. AR 249.
Plaintiff has never taken English language classes and he has learned to speak English through his wife and children. AR 249. His wife primarily converses with him in Spanish, but will occasionally do so in English. His children speak with him in English. AR 249-50. He watches television and can watch English language channels "sometimes . . . if it's not real hard" but there are times he does not understand it all. AR 250. Reading and writing in English is limited. AR 250-51.
About once a day Plaintiff will drive to the store. AR 251-52. He does not carry the groceries however. AR 252. He does not help his wife with chores like vacuuming, cleaning, or laundry because he is barely able to walk. AR 252.
VE Ferra testified that Plaintiff's prior work in the oil service industry is heavy and semi-skilled, with a Dictionary of Occupational Titles ("DOT") code of 930.684-014 and an Specific Vocational Preparation ("SVP") of 3. The saw or lumber mill position as a supervisor is classified as medium and skilled with a DOT code of 669.130-026 and an SVP of 7. AR 246.
The VE was asked to assume a hypothetical worker, who can speak English and can occasionally lift twenty pounds, frequently lift ten pounds, stand and walk three to four hours in an eight-hour day, sit for six hours in an eight-hour day with intermittent position changes, may not use ropes, ladders or scaffolds, but may occasionally climb, crouch or crawl, and avoid uneven terrain. AR 256-57, 259. The VE concluded that the limitation of standing or walking only two hours in an eight-hour day precluded light work. Thus, the VE concluded the hypothetical worker was restricted to sedentary work. AR 259. Approximately 200 sedentary type jobs are available, such as assembler, DOT code 734.687-018 with an SVP of 2. More specifically, there are 20,000 such assembler positions in the national economy and 2,000 in California. AR 259. Another sedentary position is nut sorter, DOT code 521.687-086 with an SVP of 2. There are approximately 1,500 nut sorter positions in California, and about 15,000 in the national economy. AR 259-60. An order clerk is a DOT code of 209.567-014 with an SVP of 2. In California, there are approximately 4,000 order clerk positions; in the nation, there are approximately 40,000. AR 260.
In a second hypothetical, the VE was asked to assume a hypothetical worker that could occasionally lift fifteen pounds, frequently lift ten pounds, stand or walk forty-five to sixty minutes at a time, for a total of three to four hours in an eight-hour day with frequent position changes, and who should avoid kneeling, squatting and climbing. AR 261. This individual, the VE found, could perform the same work as that identified in the first hypothetical. AR 261.
The entire record was reviewed by the Court, however, only those portions relevant to the instant proceedings are briefly summarized below.
On April 6, 2005, Plaintiff was seen by Dr. Oliver Droppers at Kaiser Permanente in Bakersfield for severe pain in the right knee. Dr. Droppers considered possible torn cartilage with a bucket handle tear and referred Plaintiff for an MRI and an appointment with an orthopedist. AR 186.
An MRI of the right knee, dated April 9, 2005, concluded degenerative change in the medial joint compartment with some focal loss of articular cartilage and early subchondral signal change, and a complex tear of the medial meniscus. AR 162.
On April 21, 2005, Robert B. Christopher D.O. examined Plaintiff. The results included right knee tenderness, minimal grating was present at flexion and extension and Plaintiff was unable to fully flex or extend the right knee. Dr. Christopher noted a review of the MRI shows a complex tear of the medial meniscus with significant degenerative joint disease on the medial compartment with some minimal in the lateral compartment. AR 178.
Surgery was performed on April 25, 2005 by Dr. Christopher. The preoperative diagnosis was internal derangement, right knee with complex tear medial meniscus and early degenerative arthritis. The surgeon performed an arthroscopy with partial medial meniscectomy of the right knee. AR 164-65.
Dr. Christopher prepared a report on May 5, 2005, following surgery. Swelling was down and range of motion had improved somewhat. While tenderness remained, the pain was less. Plaintiff believed he was making satisfactory progress and sutures were removed. AR 175. The doctor believed a combined instability brace would allow for the possibility of Plaintiff's return to work. AR 175.
A May 20, 2005, progress note reports Plaintiff is "not really any better" and was continuing to experience "clicking and catching" in the right knee after surgery. He reported difficulty walking. AR 173. Rehabilitation efforts were to continue and an MRI of the left knee was recommended. AR 174.
A physical therapy report dated June 8, 2005, prepared by Cory Frehner, noted objective findings of decreased right knee extension at the end of the swing phase resulting in decreased heel strike, medial right knee tenderness, and an increased range of motion. It was recommended Plaintiff continue receiving physical therapy. AR 167.
In a report dated June 9, 2005, Dr. Christopher noted that Plaintiff reported tenderness and swelling after he walks for a period of twenty-five to thirty minutes. Plaintiff's need to continue using the knee brace for stability was noted, and the doctor opined that Plaintiff was "totally disabled in regards to the type of work" he performed as a "laborer . . . heavy work, pulling, tugging." AR 170.
Jonathan M. Gurdin, M.D., performed an orthopedic evaluation on December 15, 2005. Plaintiff reported pain in his knees for the previous twelve to fourteen years with worsening pain. Following surgery, Plaintiff complains of constant slight aching in the joint, that worsens with activity including walking, standing, kneeling, squatting and climbing stairs. Plaintiff reported swelling every day and occasional popping, but no locking or collapsing. An MRI of his left knee showed a complex tear of the medial meniscus requiring surgery, but Plaintiff reported he lost his medical coverage and was unable to have the surgery performed. Plaintiff was using a hinged brace on his right knee and occasionally used a cane. Plaintiff reported he was limited to walking two to three blocks and could be on his feet for thirty to forty minutes at a time. He can lift fifty pounds, but is unable to carry the weight due to his knee problems. He avoids climbing stairs. AR 190.
Dr. Gurdin's physical examination noted Plaintiff was five feet, nine inches in height, weighed 248 pounds with a prominent abdomen. He was alert, cooperative and "speaks fairly good English." Plaintiff moved poorly about the examination room. AR 190.
Plaintiff walked with a mild right-side antalgic limp. He could perform the heel-to-toe test on both feet and did not have any difficulty getting on and off the examination table, or lying in the supine position and sitting back up. AR 190. Plaintiff did not complain of any back pain. AR 190. An examination of Plaintiff's right knee revealed surgical scars, slight soft tissue swelling, and slight tenderness "medially about the joint line." The ligament was intact. There was mild grinding and mild subpatellar crepitus with motion. Plaintiff's left knee was not tender and there was no soft tissue swelling present. The ligament was intact. "[V]ery slight grinding" and "slight subpatellar crepitus with motion" was present in the left knee. AR 191.
Range of motion with regard to the knees revealed 135 and 140 degrees flexion, respectively; zero degrees extension on each knee was noted. AR 191.
Dr. Gurdin diagnosed degenerative changes in the right knee with a prior arthroscopic surgery, internal derangement of the left knee with probable degenerative changes, and obesity. The doctor expressly noted that "the patient's excess weight is aggravating his knee problems." AR 191. The doctor stated:
At the present time he could probably be on his feet for no more than 45 to 60 minutes at a time and for 3 or 4 hours out of 8 hours. He could probably sit for 2 hours at a time and for 5 or 6 hours out of 8 hours but would need to frequently move his knees to minimize stiffness in the joints. He would have considerable difficulty kneeling, squatting and climbing stairs and should avoid these activities. He could probably lift at least 50 pounds but would have difficulty carrying with knee pain. He could probably lift and carry no more than 20 pounds to 25 pounds on a one-time basis, 15 pounds occasionally and 5 to 10 pounds frequently with the knee problems. Manual dexterity was intact.
On or about January 27, 2006, consultive medical examiner J. T. Bonner completed a Physical Residual Functional Capacity Assessment. Plaintiff's exertional limitations included the ability to lift and carry twenty pounds occasionally, ten pounds frequently, to stand or walk for at least two hours in an eight-hour workday, sit for about six hours in an eight-hour workday, and with limited ability to push or pull with the lower extremities. AR 192-193. With regard to postural limitations, the examiner noted Plaintiff should never climb ladders, ropes or scaffolds, or kneel; he could occasionally climb ramps or stairs, crouch or crawl, and could frequently balance and stoop. AR 194. The examiner did not find any manipulative, visual, or communication limitations. AR 195-196. One environmental limitation was identified: Plaintiff was to avoid concentrated exposure to hazards such as machinery and heights. AR 196. The examiner noted that Plaintiff's symptoms were partially credible in light of his impairments, but the severity and functional limitations claimed by Plaintiff were not fully supported by the medical record. AR 197.
Records from Kern Family Health Care ("KFHC") dated July 13, 2006, evidence Plaintiff was complaining of right knee pain. A referral to a rheumatologist was made, and medications were prescribed to treat the pain. AR 205-206. An x-ray of the same date shows medial joint narrowing and medial subluxation of the femur on the tibia due to arthritic changes. AR 207.
On August 17, 2006, Plaintiff was treated at KFHC for continuing knee pain. Prescription medications were refilled and a notation that he was "to see specialist" is included. AR 211.
Treatment notes from KFHC dated December 5, 2006, note that Plaintiff had knee pain in both knees, and had forgotten his medications while on vacation. The pain increases when he is in a cold environment; Plaintiff denied any swelling or decreased range of motion. Naproxen was prescribed and he was to return in two months for a follow up. AR 212.
On January 30, 2007, KFHC notes indicate Plaintiff was to see the rheumatologist the following day. His right knee was swollen and there was a decreased range of motion due to the pain. AR 214.
Nicholas T. Valos, M.D.'s notes regarding Plaintiff's treatment at KFHC were reviewed for the period between October 11, 2006 and November 5, 2007. AR 218-225.
On July 31, 2007, Robert Folsom, R.P.T. with Pair & Marotta Physical Therapy, indicated initial treatment was tolerated well and Plaintiff had fair potential to decrease pain, improve range of motion, improve strength and functional tolerance, and for a home exercise program. AR 232.
In an August 29, 2007, progress summary of Pair & Marotta Physical Therapy, it was noted Plaintiff had attended 12 of his 13 appointments for treatment of his left knee. His left knee range of motion was -16 degrees extension to 120 degrees flexion. Plaintiff complained of pain at a "6 to 7/10" and indicated his knee occasionally locked and was "unstable with 'every step.'" AR 231.
The ALJ determined that Plaintiff had the severe impairments of status post surgery for torn meniscus in the right knee with degenerative changes, and torn meniscus in the left knee with degenerative changes. AR 17. The ALJ found however that these severe impairments do not meet or equal a listed impairment requiring a finding of disability. AR 18.
Based on his review of the medical evidence, the ALJ determined that Plaintiff has the residual functional capacity ("RFC") to perform sedentary work with certain limitations. More particularly, the ALJ found Plaintiff could lift or carry ten pounds frequently and fifteen pounds occasionally, could stand or walk for forty-five to sixty minutes at a time for a total of three to four hours in an eight-hour workday, could sit for two hours at a time for a total of five to six hours in an eight-hour workday, each with frequent position changes, while avoiding kneeling, squatting and climbing. AR 18-19.
Given this RFC, the ALJ nevertheless found that Plaintiff could not return to his past work as an oil service worker or supervisor. He did not possess any skills transferable to other work. AR 19-20. The ALJ determined however that Plaintiff could perform jobs that exist in significant numbers in the national economy. AR 20-21.
SCOPE OF REVIEW
Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, the Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405 (g). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The record as a whole must be considered, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the evidence and making findings, the Commissioner must apply the proper legal standards. E.g., Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner's determination that the claimant is not disabled if the Secretary applied the proper legal standards, and if the Commissioner's findings are supported by substantial evidence. See Sanchez v. Sec'y of Health and Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).
In order to qualify for benefits, a claimant must establish that he is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c (a)(3)(A). A claimant must show that he has a physical or mental impairment of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).
In an effort to achieve uniformity of decisions, the Commissioner has promulgated regulations which contain, inter alia, a five-step sequential disability evaluation process. 20 C.F.R. §§ 404.1520 (a)-(f), 416.920 (a)-(f) (1994). This five-step analysis can be summarized as follows: (1) determination of whether the claimant is engaged in substantial gainful activity; if so engaged, the claimant is not presumed disabled and the analysis ends; (2) if not engaged in substantial gainful activity, determination of whether the claimant has a severe impairment; if not, the claimant is not presumed disabled and the analysis ends; (3) if the claimant has a severe impairment, determination of whether any such severe impairment meets any of the impairments listed in the regulations; if so, the claimant is disabled and the analysis ends; (4) if the claimant's impairment is not listed, determination of whether the impairment prevents the claimant from performing his or her past work; if not, the claimant is not presumed disabled and the analysis ends; and (5) if the impairment prevents the claimant from performing his or her past work, determination of whether the claimant can engage in other types of substantial gainful work that exist in the national economy; if so, the claimant is not disabled and the analysis ends.
Here, Plaintiff argues that the ALJ failed to fulfill his burden of establishing that Plaintiff is literate in the English language, and thus, this Court should reverse and order an award of benefits. (Doc. 13 9-13.) Plaintiff also argues the ALJ failed to articulate clear and convincing reasons for rejecting his pain testimony. (Doc. 13 at 14-21.)
A. Plaintiff's English Language Skills
Plaintiff argues the ALJ erred by failing to make a finding as to whether Plaintiff is literate or illiterate in English. (Doc. 13 at 9-13.) More particularly, Plaintiff argues two separate findings are required by the ALJ: (1) whether or not a claimant is literate in English; and (2) whether or not a claimant can communicate or speak in English. (Doc. 13 at 10-11.) Defendant contends the ALJ did not err for he was not required to rely on the Grids in light of the VE testimony, that even had the ALJ been required to apply the Grids, the Grid identified by Plaintiff is inapplicable, and, finally, that the ALJ did in fact make a sufficient finding that Plaintiff was literate in English. (Doc. 19 at 10-13.)
The ALJ found that Plaintiff is unable to perform his past relevant work as an oil service worker and supervisor, as those positions were classified as heavy and medium, respectively. AR 19. The VE concluded Plaintiff had no skills or semi-skills that were transferable. AR 20. The ALJ acknowledged Plaintiff was forty-five years old, and stated as follows with regard to education and language skill:
The claimant is able to speak in English, even though his primary language is Spanish. While an interpreter was used at the hearing, the undersigned was able to directly communicate with the claimant in English. His children and wife occasionally speak English and he converses with them in English. When he goes out, he speaks English in stores. He is able to watch TV programs in English. He understands more than he speaks in English. He has a limited ability to read and write in English. He completed nine years of formal education.
1. The Grids
The grids may be used only where they "completely and accurately represent a claimant's limitations." Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999); see Jones v. Heckler, 760 F.2d 993, 998 (9th Cir. 1985). Accordingly, if a claimant suffers from non-exertional limitations, the ALJ may not apply the grids because they are based on strength factors only. See 20 C.F.R. Part 404, Subpt. P, App. 2, § 200.00(b); see also 20 C.F.R. §§ 404.1569a; 416.969a (defining non-exertional limitations as limitations that do not directly affect a claimant's [muscular] strength); Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 576-77 (9th Cir. 1988) (noting that a sufficiently severe, non-exertional impairment may limit a claimant's functional capacity in ways not contemplated by the guidelines, rendering the guidelines inapplicable and noting that pain, postural limitations, or environmental limitations are examples of non-exertional limitations).
The Tackett court expressly stated:
The Commissioner's need for efficiency justifies use of the grids at step five where they completely and accurately represent a claimant's limitations. [Citation.] In other words, a claimant must be able to perform the full range of jobs in a given category, i.e., sedentary work, light work, or medium work. As explained in Desrosiers:
"This court has recognized that significant non-exertional limitations, such as poor vision or inability to tolerate dust or gases, may make reliance on the grids inappropriate. We have also held that pain can be a non-exertional limitation.
However, the fact that a non-exertional limitation is alleged does not automatically preclude application of the grids. The ALJ should first determine if a claimant's non-exertional limitations significantly limit the range of work permitted by his exertional limitations.
. . . A non-exertional impairment, if sufficiently severe, may limit the claimant's functional capacity in ways not contemplated by the guidelines. In such a case, the guidelines would be inapplicable." [Citation.]
The ALJ may rely on the grids alone to show the availability of jobs for the claimant "only when the grids accurately and completely describe the claimant's abilities and limitations." [Citations.] Examples of non-exertional limitations are pain, postural limitations, or environmental limitations. [Citation.] Tackett v. Apfel, 180 F.3d at 1101-02, emphasis in original.
The ALJ did not err. Plaintiff clearly suffered from a non-exertional impairment. When a claimant suffers from pain or other non-exertional limitations, an ALJ cannot prove the existence of jobs available to that claimant by using the grids and, instead, must prove such existence through expert vocational testimony. Tackett v. Apfel, 180 F.3d at 1101-02; see also Thompson v. Sullivan, 987 F.2d 1482, 1491-92 (10th Cir. 1993).
2. Findings re Language Abilities
Plaintiff speaks primarily Spanish. The ALJ determined however that Plaintiff was able to communicate in English and had a limited ability to read and write in English.
A distinction exists between an assessment of literacy and an assessment of the ability to communicate in English. An ALJ must consider both in determining whether a claimant can perform work pursuant to the regulations. 20 C.F.R. §§ 404.1564(b), 416.964(b). "Illiteracy" is defined as the "inability to read or write." 20 C.F.R. §§ 404.1564(b)(1), 416.964(b)(1). A claimant who is able to read or write a simple message in English is not considered illiterate. Ibid. A claimant with the capability to communicate in English is one who can "speak, read, and understand" the language. Id., at 404.1564(b)(5), 416.964(b)(5).
Here, the ALJ found as follows:
The claimant has a limited education and is able to communicate in English [citation].
The claimant is able to speak in English, even though his primary language is Spanish. While an interpreter was used at the hearing, the undersigned was able to directly communicate with claimant in English. His children and wife occasionally speak English and he converses with them in English. When he goes out, he speaks English in stores. He is able to watch TV programs in English. He understands more than he speaks in English. He has a limited ability to read and write in English. He completed nine years of formal education.
Plaintiff is capable of communicating in English because he can speak and understand English, although he understands more than he speaks. He can understand English speaking television programs "if it's not real hard." AR 250. He can converse with store clerks in English "if it's not something real, real hard . . .." AR 249. His children speak to him in English; his wife does so occasionally. AR 250. In fact, at one point the ALJ asked Plaintiff to respond to his inquiry in English:
[ALJ]: Do you ever speak English in the course of a day since you stopped working?
[INTERPRETER]: Since he stopped working?
[ALJ]: Yes, now that he doesn't have anyone to translate for him does he speak English at all at home or when he goes out?
[PLAINTIFF]: Yes, I do speak it with my children.
ALJ: Could you give me an example on how well you speak? PLAINTIFF: Should I say it in English?
ALJ: Yes please.
PLAINTIFF: Yes, when I pick up my daughter I ask him how she's doing in the school and I ask him, I ask her, my [INAUDIBLE] if he have problem in the school, if he have homework, something like that, you know.
In Silveira v. Apfel, 204 F.3d 1257 (9th Cir. 2000), the Ninth Circuit clarified that a claimant is illiterate if she is illiterate or unable to communicate in English, or both, not that a claimant must be both illiterate and unable to communicate in English. Id., at 1262, n. 13.*fn4
With regard to whether or not Plaintiff can read and write English, the record here is extremely limited. At the hearing, the following colloquy occurred:
[ATTORNEY ABARCA]: But as far as reading and writing, your Honor, you didn't, can we ask him about that or is it just a matter of being able to talk English?
ALJ: Well, able to communicate I, I still need to have read and write. Is that correct you can't read, can you read anything in English?
CLMT: I can read a little bit and I can write a little bit, not much.
ALJ: I'm rea[ch]ing a conclusion that he's able to communicate. I'm not suggesting to you that he can communicate at the level that he can communicate in Spanish but he can certainly communicate at a sufficient level that he could exist and operate within a workplace but I, you know, I want to give you an opportunity to address that.
ATTY: Well, I'm at a loss for words actually.
AR 250-251. Despite being provided an opportunity ask her client more questions concerning his proficiency in both reading and writing in English, as well as orally communicating in English, Ms. Abarca completely failed to address either issue despite expressing incredulity with the ALJ's conclusion about Plaintiff's communication skills. See AR 251-262. Additionally, the ALJ did not attempt to determine what Plaintiff meant by "a little bit." Nor did the ALJ's decision explain what "a limited ability" to read and write in English meant.*fn5 This evidence is insufficient to support a finding that Plaintiff is literate. A vague response of "[a] little bit" in response to whether or not a claimant can read or write English is insufficient to establish that Plaintiff can read or write a simple message in the English language. 20 C.F.R. §§ 404.1564(b)(1), 416.964(b)(1). Perhaps indeed he can, but the record is far from clear.*fn6 Silviera v. Apfel, 204 F.3d at 1262; see also Dixon v. Heckler, 811 F.2d 506, 510 (10th Cir. 1987); Delgado v. Barnhart, 305 F.Supp.2d 704, 715 (S.D. Tex. 2004).*fn7
Moreover, because the capability to communicate in English pertains to one who can "speak, read, and understand" the language (20 C.F.R. §§ 404.1564(b)(5), 416.964(b)(5), emphasis added), the lack of information in the record pertaining to Plaintiff's ability to read is insufficient to uphold the ALJ's finding regarding Plaintiff's ability to communicate.
In sum, the ALJ's findings are not supported by substantial evidence and are not free of legal error. For that reason, the matter will be remanded for further proceedings consistent with this opinion.
B. The ALJ's Credibility Finding
Plaintiff asserts the ALJ erred by failing to provide clear and convincing reasons for rejecting Plaintiff's testimony regarding his pain. (Doc. 13 at 14-21.) Defendant counters the ALJ provided the necessary reasons and that those reasons are supported by substantial evidence in the record. (Doc. 19 at 13-16.)
The ALJ is required to make specific findings assessing the credibility of plaintiff's subjective complaints. Ceguerra v. Secretary of HHS, 933 F.2d 735 (9th Cir. 1991). In rejecting the complainant's testimony, "the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996) (quoting Varney v. Secretary of Health and Human Services, 846 F.2d 581, 584 (9th Cir. 1988)).
"Despite the inability to measure and describe it, pain can have real and severe debilitating effects; it is, without a doubt, capable of entirely precluding a claimant from working." Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). It is possible to suffer disabling pain even where the degree of pain is unsupported by objective medical findings. Id. "In order to disbelieve a claim of excess pain, an ALJ must make specific findings justifying that decision." Id. (citing Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989)). The findings must convincingly justify the ALJ's rejection of the plaintiff's excess pain testimony. Id. at 602. However, an ALJ cannot be required to believe every allegation of disabling pain. "This holds true even where the claimant introduces medical evidence showing that he has an ailment reasonably expected to produce some pain." Id. at 603.
The ALJ may use "ordinary techniques" in addressing credibility. Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997), and may make inferences "logically flowing from the evidence." Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996).
If a claimant is able to spend a substantial part of his day engaged in pursuits involving the performance of physical functions that are transferable to a work setting, a specific finding as to this fact may be sufficient to discredit a claimant's allegations. Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). The ALJ must make "specific findings relating to [the daily] activities" and their transferability to conclude that a claimant's daily activities warrant an adverse credibility determination. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (citing Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)).
In this case, the ALJ did not ignore or reject plaintiff's testimony solely because it was unsupported by objective evidence. The ALJ also made other findings in support of his determination that plaintiff's complaints of pain were exaggerated. The Court turns to address these findings.
Plaintiff finds fault with each reason provided by the ALJ for finding him only partially credible. (Doc. 13 at 14-20.) He complains the reasons provided "are factually and/or legally erroneous" and thus "should not be deemed to be 'clear and convincing.'" (Doc. 13 at 20.) Yet for many of the assertions identified as error by Plaintiff, he has failed to provide any authority for his position on the point.
The ALJ found as follows:
After considering the evidence of record, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to produce the alleged symptoms, but that the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible.The claimant is only taking Tylenol for his allegedly disabling knee pain. Further, he only takes it once or twice per week.
His knee pain does not prevent him from operating a car, which he uses to shop at the grocery store.
Treating records show that the claimant's knee functions well as long as he wears his brace. These notes show that he is tolerating the brace without any reported problems.
The weight of the objective evidence does not support he claims of the claimant's disabling limitations to th degree alleged. Exams show full range of motion in both knees and no effusion. There is no indication of consistent swelling or inflammation [citations].
The record does not show that the claimant requires any special accommodations (e.g., special breaks or positions) to relieve the pain or other symptoms.
In contrast to the allegations of the claimant's disabling fatigue and weakness, he does not exhibit any significant disuse muscle atrophy, loss of strength, or difficulty moving that are indicative of severe and disabling pain.
Although the claimant has been prescribed and has taken appropriate medications for the alleged impairments, which weighs in [his] favor, the objective medical evidence shows that the medications have been relatively effective in controlling the claimant's symptoms. Moreover, the claimant has not alleged any side effects from the use of medications.
There is no evidence of loss of weight due to loss of appetite due to pain. There is no evidence of sleep deprivation due to pain.
The Commissioner asserts the ALJ "provided numerous specific, clear, and convincing reasons for finding Plaintiff to be only partially credible." (Doc. 19 at 14.) In part, the Commissioner points to the ALJ's proper consideration of Plaintiff's use of over-the-counter medications. (Doc. 19 at 14.) In Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007), the Ninth Circuit held that evidence of "conservative treatment," such as a claimant's use of only over-the-counter pain medication, is sufficient to discount a claimant's testimony regarding severity of an impairment.
The ALJ properly considered Plaintiff's daily activities, including driving a car and grocery shopping. (AR 18.) Also, while it may not be clear from the record regarding the amount of time Plaintiff may spend behind the wheel of a car everyday, even were this factor improperly considered by the ALJ, in light of the other determinations made regarding Plaintiff's credibility, on the whole there is no error. Batson v. Barnhart, 359 F.3D 1190, 1197 (9th Cir. 2004) (upholding ALJ's credibility determination even though one reason may have been in error). Interestingly, the Court notes that in a unsigned and undated functional report prepared by a third party, it was reported that Plaintiff grocery shops twice a month for approximately one hour. AR 107. In the same document however, it was also reported that Plaintiff could only walk thirty minutes before needing to rest for twenty minutes. AR 109.
The ALJ also properly considered the fact that Plaintiff benefitted from the use of a knee brace.
In evaluating the credibility of the symptom testimony, it appears that the ALJ did consider all of the factors set out in SSR 96-7P and 20 C.F.R. §§ 404.1529c(4)(i)(vii), 416.929(c)(4)(i)(vii). See Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996), and Bunnell, 947 F.2d at 346. The SSR directs the ALJ to consider a (1) claimants daily activities; (2) location, frequency and intensity of claimant's symptoms or pain; (3) precipitating factors and aggravating factors; (4) type, dosage, effectiveness and adverse side effects of any pain medication; (5) treatment for pain relief; (6) any reasons used by the claimant to relieve the pain or symptoms; and (7) other factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms.
Moreover, the ALJ provided specific findings and identified the relevant testimony and evidence undermining Plaintiff's complaints. Ceguerra v. Secretary of HHS, 933 F.2d 735; Lester v. Chater, 81 F.3d at 834. Therefore, there was no error and the ALJ's findings are supported by substantial evidence.
Because the record is insufficient to support a finding of Plaintiff's ability to read and write English, substantial evidence does not support the Commissioner's decision that Calderon is not disabled.
Based on the foregoing, the Court finds that the ALJ's decision is not supported by substantial evidence and is therefore REVERSED and the case is REMANDED to the ALJ for further proceedings consistent with this opinion. The ALJ shall make specific findings with regard to Plaintiff's ability to read and write in English. The Clerk of this Court is DIRECTED to enter judgment in favor of Plaintiff Gilberto Calderon and against Defendant Michael J. Astrue, Commissioner of Social Security.
IT IS SO ORDERED.