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Fischman v. Astrue


February 3, 2010


The opinion of the court was delivered by: Rosalyn M. Chapman United States Magistrate Judge


Plaintiff Katie N. Fischman filed a complaint on November 24, 2008, seeking review of the Commissioner's decision denying her application for disability benefits. On April 27, 2009, the Commissioner answered the complaint, and the parties filed a joint stipulation on July 1, 2009.


On April 27, 2005, plaintiff filed an application for disability benefits under Title II of the Social Security Act ("Act"), 42 U.S.C. § 423, claiming an inability to work since October 30, 2000, due to "venous thrombosis caused from a blood condition. Legally blind in the left eye, minus 8 in the right eye." Certified Administrative Record ("A.R.") 93-97, 118. The plaintiff's application was initially denied on August 18, 2005, and was denied again on December 2, 2005, following reconsideration. A.R. 53-64. The plaintiff then requested an administrative hearing, which was held before Administrative Law Judge Sally C. Reason ("the ALJ") on May 31, 2006. A.R. 65-66, 228-47. On June 28, 2006, the ALJ issued a decision finding plaintiff is not disabled. A.R. 37-45. The plaintiff appealed this decision to the Appeals Council, which vacated the ALJ's decision and remanded for further proceedings on November 24, 2007. A.R. 49-52, 80, 84-88.

The ALJ then conducted another administrative hearing on March 10, 2008. A.R. 248-63. On April 16, 2008, the ALJ issued a new decision again finding plaintiff is not disabled. A.R. 15-25. The plaintiff appealed the decision to the Appeals Council, which denied review on September 26, 2008. A.R. 7-14, 221-27.



The Court, pursuant to 42 U.S.C. § 405(g), has the authority to review the decision denying plaintiff disability benefits to determine if the Commissioner's findings are supported by substantial evidence and whether he used the proper legal standards in reaching his decision. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009); Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). The claimant is "disabled" for the purpose of receiving benefits under the Act if she is unable to engage in any substantial gainful activity due to an impairment which has lasted, or is expected to last, for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a). "The claimant bears the burden of establishing a prima facie case of disability." Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996).

The Commissioner has promulgated regulations establishing a five-step sequential evaluation process for the ALJ to follow in a disability case. 20 C.F.R. § 404.1520. In the First Step, the ALJ must determine whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b). If not, in the Second Step, the ALJ must determine whether the claimant has a severe impairment or combination of impairments significantly limiting her from performing basic work activities. 20 C.F.R. § 404.1520(c). If so, in the Third Step, the ALJ must determine whether the claimant has an impairment or combination of impairments that meets or equals the requirements of the Listing of Impairments ("Listing"), 20 C.F.R. § 404, Subpart P, App. 1. 20 C.F.R. § 404.1520(d). If not, in the Fourth Step, the ALJ must determine whether the claimant has sufficient residual functional capacity despite the impairment or various limitations to perform her past work. 20 C.F.R. § 404.1520(f). If not, in Step Five, the burden shifts to the Commissioner to show the claimant can perform other work that exists in significant numbers in the national economy. 20 C.F.R. § 404.1520(g).

Applying the five-step sequential evaluation process, the ALJ found plaintiff has not engaged in substantial gainful activity between her alleged onset date of October 30, 2000, and her date last insured of December 31, 2005. (Step One). The ALJ then found plaintiff has the following severe impairments: "blindness in the left eye with a history of central retinal vein occlusion, and retinal degeneration in both eyes" (Step Two); however, she does not have an impairment or combination of impairments that meets or equals a Listing. (Step Three). The ALJ further determined plaintiff cannot perform her past relevant work as a travel agent or travel agency manager. (Step Four). Finally, the ALJ concluded plaintiff can perform a significant number of jobs in the national economy; therefore, she is not disabled. (Step Five).


A claimant's residual functional capacity ("RFC") is what she can still do despite her physical, mental, non-exertional, and other limitations. Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); see also Valentine v. Comm'r, Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009) (RFC is "a summary of what the claimant is capable of doing (for example, how much weight he can lift)."). Here, the ALJ found plaintiff has the RFC "to perform a full range of work at all exertional levels but with the following non-exertional limitations: no work requiring good binocular vision, good depth perception, or full peripheral vision." A.R. 21. However, plaintiff contends this finding, as well as the Step Five determination, are not supported by substantial evidence because the ALJ erroneously concluded she was not a credible witness and failed to properly consider the opinion of her treating physician.

The plaintiff testified at the administrative hearing that she is unable to work because every time she reads "a little bit" her "eyes go" or blur and she experiences "severe pain," and then plaintiff has a panic attack. A.R. 231, 236, 239-40, 243, 260. The plaintiff explained she cannot do paperwork or computer work and cannot read for any length of time --- no more than a couple of paragraphs to a page --before she experiences blurriness and eye pain. A.R. 233-35. Once the eye pain starts, plaintiff testified she gets "a nasal drip" and then "start[s] to get really nervous because the pain can be really bad" and she feels as if she is going to go blind. A.R. 235-36.

Once a claimant has presented objective evidence that she suffers from an impairment that could cause pain or other non-exertional limitations,*fn1 the ALJ may not discredit the claimant's testimony "solely because the degree of pain alleged by the claimant is not supported by objective medical evidence." Bunnell v. Sullivan, 947 F.2d 341, 347 (9th Cir. 1991) (en banc); Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004). Thus, if the ALJ finds the claimant's subjective complaints are not credible, she "'must provide specific, cogent reasons for the disbelief.'" Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (citations omitted); Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007). Furthermore, if there is medical evidence establishing an objective basis for some degree of pain and related symptoms, and no evidence affirmatively suggesting that the claimant is malingering, the ALJ's reasons for rejecting the claimant's testimony must be "clear and convincing." Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Vasquez, 572 F.3d at 591 (9th Cir. 2009).

The ALJ discredited plaintiff's testimony, finding plaintiff's "statements concerning the intensity, persistence and limiting effects of [her] symptoms [were] not credible to the extent they [were] inconsistent with the [RFC] assessment for [several] reasons[,]" A.R. 21, including that plaintiff "did not indicate any restriction in her ability to perform normal activities of daily living (other than difficulty reading) due to her visual condition during the period in question." A.R. 23. However, "[t]he ALJ must make 'specific findings relating to [the claimant's daily] activities' and their transferability [to the workplace] to conclude that a claimant's daily activities warrant an adverse credibility determination." Orn, 495 F.3d at 639 (citation omitted); see also Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) ("With respect to daily activities, . . . if a claimant 'is able to spend a substantial part of [her] 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.'" (quoting Morgan, 169 F.3d at 600)); Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) (If daily activity evidence is used to rebut claims of non-exertional limitations, the ALJ must find "the ability to perform those daily activities translate[s] into the ability to perform appropriate work."). Here, the ALJ made no such findings, and her conclusory reference to daily living activities -- with absolutely no discussion of what those activities involve or how such activities translate into an ability to work -- cannot support the ALJ's negative credibility assessment. Orn, 495 F.3d at 639; Vertigan, 260 F.3d at 1049-50.

The ALJ also based her adverse credibility determination on the finding that plaintiff "does not appear to be taking any prescribed medications." A.R. 23. However, since there is apparently no treatment for plaintiff's eye condition that requires prescription medication, A.R. 123, 155, 184, 186, this, too, is not a clear and convincing reason for rejecting plaintiff's testimony. Regennitter v. Comm'r of the Soc. Sec. Admin., 166 F.3d 1294, 1296 (9th Cir. 1999).

Further, the ALJ found plaintiff's "contention of a lack of ability to perform any paperwork or computer work with her remaining right eye vision due to eye strain and headaches is not supported by the medical evidence for the period through December 31, 2005." A.R. 23. However, since this finding is grossly conclusory, and the ALJ did not further elaborate on it, this finding also does not provide a clear and convincing reason for rejecting plaintiff's testimony. See Regennitter, 166 F.3d at 1297 (An ALJ's determination that claimant's complaints are inconsistent with clinical findings "could satisfy the requirement of a clear and convincing reason for discrediting a claimant's testimony, except that the ALJ did not specify what complaints are contradicted by what clinical observations."). Moreover, "[t]he fact that a claimant's testimony is not fully corroborated by the objective medical findings, in and of itself, is not a clear and convincing reason for rejecting it." Vertigan, 260 F.3d at 1049; see also Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986) ("It is improper as a matter of law to discredit excess pain testimony solely on the ground that it is not fully corroborated by objective medical findings."). In any event, even assuming arguendo the ALJ relied on the fact that on visual acuity tests plaintiff's corrected vision in the right eye is between 20/30 and 20/50, see A.R. 22, such testing does not conflict with plaintiff's complaints that she experiences blurred vision and pain after reading no more than a couple of paragraphs to a page; rather, plaintiff's complaint is not that she cannot see out of her right eye at all, but that when she uses her right eye to read for a few minutes, her vision blurs and she has eye pain.*fn2 Such complaints are not inconsistent with the ability to read a few lines on an eye chart; therefore, this is not a clear and convincing reason for rejecting plaintiff's testimony. Vasquez, 572 F.3d at 592-93.

Finally, the ALJ's finding of a normal consultative internal examination in July 2005 by Ursula Taylor, M.D., A.R. 23, does not support the ALJ's adverse credibility finding since Dr. Taylor, an internist, did not specifically address plaintiff's eye pain despite her complaints of eye pain and fatigue with overuse. A.R. 157-62. Similarly, the ALJ's findings that plaintiff "has no other physical or mental impairments" and has "never received any counseling or other treatment" for nervousness and occasional "panic attacks" do not support the ALJ's adverse credibility determination because they do not address plaintiff's testimony about her eye condition, which is the impairment that prevents plaintiff from working.

For all these reasons, the ALJ did not provide clear and convincing reasons for discrediting plaintiff's testimony; thus, the RFC determination, which does not reflect plaintiff's testimony, is not supported "by substantial evidence based on the record as a whole." Reddick v. Chater, 157 F.3d 715, 724 (9th Cir. 1998); Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007). "Nor does substantial evidence support the ALJ's step-five determination, since it was based on this erroneous RFC assessment." Lingenfelter, 504 F.3d at 1041.


When the Commissioner's decision is not supported by substantial evidence, the Court has authority to affirm, modify, or reverse the Commissioner's decision "with or without remanding the cause for rehearing." 42 U.S.C. § 405(g); McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). "Remand for further administrative proceedings is appropriate if enhancement of the record would be useful." Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.), cert. denied, 531 U.S. 1038 (2000). Here, since there are "insufficient findings as to whether claimant's testimony should be credited as true," remand is the appropriate remedy.*fn3 Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003).


IT IS ORDERED that: (1) plaintiff's request for relief is granted; and (2) the Commissioner's decision is reversed, and the action is remanded to the Social Security Administration for further proceedings consistent with this Opinion and Order, pursuant to sentence four of 42 U.S.C. § 405(g), and Judgment shall be entered accordingly.

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