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Berry v. Astrue


August 25, 2010


The opinion of the court was delivered by: Honorable Jacqueline Chooljian United States Magistrate Judge



On July 27, 2009, plaintiff Joshua Berry ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's application for benefits. The parties have consented to proceed before a United States Magistrate Judge.

This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; July 30, 2009 Case Management Order ¶ 5.

Based on the record as a whole and the applicable law, the decision of the Commissioner is REVERSED AND REMANDED for further proceedings consistent with this Memorandum and Opinion and Order of Remand.


Plaintiff filed applications for Supplemental Security Income benefits and Disability Insurance Benefits on or about September 29, 2003. (Administrative Record ("AR") 15, 187-89, 336-38). Plaintiff asserted that he became disabled on June 1, 2002, because he was partially sighted since birth. (AR 197). The Administrative Law Judge ("ALJ") examined the medical record and held three hearings. (AR 24-114). At the first hearing, on September 14, 2005, the ALJ heard testimony from a medical expert, a vocational expert, and plaintiff, but plaintiff's counsel was not present. (AR 24-50). Plaintiff's counsel was present for the next two hearings, on December 21, 2005, and June 7, 2007, at which a medical expert, a vocational expert, and plaintiff testified. (AR 51-114).

On June 15, 2007, the ALJ determined that plaintiff was not disabled through the date of the decision. (AR 15-21). Specifically, the ALJ found:

(1) plaintiff suffered from the severe impairment of congenital nystagmus (AR 17); (2) plaintiff did not have an impairment or combination of impairments that meets or medically equals one of the listed impairments (AR 18); (3) plaintiff retained the residual functional capacity to perform "an unlimited range of exertional work" with certain non-exertional limitations (AR 18);*fn1 (4) plaintiff could perform his past relevant work (AR 20); and (5) plaintiff's allegations regarding his limitations were not entirely credible. (AR 19).

The Appeals Council denied plaintiff's application for review. (AR 6-8).


A. Sequential Evaluation Process

To qualify for disability benefits, a claimant must show that he is unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work he previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:

(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.

(2) Is the claimant's alleged impairment sufficiently severe to limit his ability to work? If not, the claimant is not disabled. If so, proceed to step three.

(3) Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If not, proceed to step four.

(4) Does the claimant possess the residual functional capacity to perform his past relevant work? If so, the claimant is not disabled. If not, proceed to step five.

(5) Does the claimant's residual functional capacity, when considered with the claimant's age, education, and work experience, allow him to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled.

Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920).

B. Standard of Review

Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legal error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006) (citing Flatten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 (9th Cir. 1995)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)).

To determine whether substantial evidence supports a finding, a court must "'consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing the ALJ's conclusion, a court may not substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 882 (citing Flatten, 44 F.3d at 1457).


A. The ALJ Improperly Assessed Plaintiff's Credibility

Plaintiff contends that the ALJ improperly evaluated the credibility of plaintiff's subjective complaints. (Plaintiff's Motion at 6). The Court agrees.

1. Pertinent Law

"To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis." Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, "the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment 'which could reasonably be expected to produce the pain or other symptoms alleged.'" Id. (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)).

"Second, if the claimant meets this first test, and there is no evidence of malingering, 'the ALJ can reject the claimant's testimony about the severity of [his] symptoms only by offering specific, clear and convincing reasons for doing so.'" Lingenfelter, 504 F.3d at 1036 (citations omitted). "In making a credibility determination, the ALJ 'must specifically identify what testimony is credible and what testimony undermines the claimant's complaints.'" Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (citation omitted). "The ALJ must cite the reasons why the claimant's testimony is unpersuasive." Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) (citation and quotation marks omitted). In weighing credibility, the ALJ may consider factors including: the nature, location, onset, duration, frequency, radiation, and intensity of any pain; precipitating and aggravating factors (e.g., movement, activity, environmental conditions); type, dosage, effectiveness, and adverse side effects of any pain medication; treatment, other than medication, for relief of pain; functional restrictions; the claimant's daily activities; and "ordinary techniques of credibility evaluation." Bunnell, 947 F.2d at 346 (citing Social Security Ruling ("SSR") 88-13; quotation marks omitted).*fn2

The ALJ may consider (a) inconsistencies or discrepancies in a claimant's statements; (b) inconsistencies between a claimant's statements and activities; (c) exaggerated complaints; and (d) an unexplained failure to seek treatment.

Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If properly supported, the ALJ's credibility determination is entitled to "great deference." See Green v. Heckler, 803 F.2d 528, 532 (9th Cir. 1986).

2. Analysis

In this case, the ALJ found that plaintiff's "medically determinable impairment could reasonably be expected to produce the alleged symptoms, but that [plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible." (AR 19). The ALJ provided several reasons for discounting plaintiff's credibility. The Court finds none of them to be clear and convincing.

First, the ALJ stated that "[s]everal of the evaluating sources including Dr. Bishai, Dr. Smith as well as the medical expert have... noted some inconsistencies bearing on claimant's credibility." (AR 20). Examination of the underlying medical reports, however, reveals that they do not suffice to discount plaintiff's credibility. As the ALJ mentioned, Dr. Bishai "was of the opinion that the alleged level of vision was not consistent with the degree of pathology" and that the "degree or amount of [plaintiff's] nystagmus did not account for 20/200 best corrected vision." (AR 19 (citing Exhibit 2F [AR 263])). However, it is not clear that Dr. Bishai's statement concerns plaintiff's credibility. Dr. Bishai appears to have examined plaintiff on only one occasion, and his statement may also indicate that further testing could have revealed additional or more extensive pathology. Indeed, the medical expert, Dr. McCaffery, had Dr. Bishai's report before him at the December 21, 2005 hearing, when he explained that "[t]o date there are no physical findings to support a visual acuity of 20/200 or 20/100" and recommended visual evoked response testing to investigate the possibility of additional pathology. (See AR 58, 60). Therefore, Dr. Bishai's statement does not constitute a clear and convincing reason to discount plaintiff's credibility.

The ALJ also mentioned that examining psychiatrist Dr. Smith "noted that some of the claimant's statements were inconsistent." (AR 20 (citing Exhibit 7F [AR 302-07])). The ALJ appears to be referring to Dr. Smith's statements that

(1) "it was somewhat surprising," in light of his vision problems, that plaintiff stated he did not know why he was depressed; and (2) plaintiff stated "he was let go from his job because he couldn't read his schedule when, in fact, he filled out his questionnaire with no problem." (AR 302, 304-05). But Dr. Smith also stated that plaintiff "appeared mostly genuine," that "[t]here was no evidence of exaggeration or manipulation," and that the inconsistencies "were minor points." (AR 305, 307). Therefore, in the context of the full report, the inconsistencies noted by Dr. Smith do not suffice to reject claimant's credibility.

The ALJ also noted that the medical expert, Dr. McCaffery, "noted some inconsistencies bearing on [plaintiff's] credibility." (AR 20). However, the ALJ did not cite any specific testimony of Dr. McCaffery to support this point. The Court's review of the hearing transcripts suggests that the ALJ may have had in mind Dr. McCaffery's statement that "there have been examiners that say that there's not enough pathology present to account for this reduced level of vision." (AR 81). But Dr. McCaffery made this statement in explaining why he suggested that plaintiff undergo visual evoked response testing, and he did not identify any statements that detracted from plaintiff's credibility. (See id.). Dr. McCaffery was likely referring to Dr. Bishai's examination, discussed above. The ALJ may have also had in mind Dr. McCaffery's discussion of the lack of response in plaintiff's left eye to the visual evoked response testing. (See AR 75-78, 332). Dr. McCaffery believed the "negative wave form result is the result of the patient not looking at the testing target" (AR 332), but the physician who performed the examination, Dr. Nayyar, wrote that "[p]atient was looking at the target" and "was unable to see anything through [the] left eye." (AR 334). The visual evoked response test was performed only once (AR 328), and Dr. McCaffery testified that "it's now an international standard to test each eye twice" and "[e]specially when you have an eye with an abnormal response, the second test... validates the first test." (AR 75). Dr. McCaffery's own testimony therefore suggests that he had insufficient data to draw a conclusion as to plaintiff's credibility. Therefore, without more explanation, Dr. McCaffery's identification of "inconsistencies" does not suffice to detract from plaintiff's credibility.

The second reason the ALJ gave for discounting plaintiff's credibility was that plaintiff's "motivation to work is highly questionable and there appears to be little interest in or attachment to work." (AR 20). This statement is not supported by substantial evidence. Plaintiff stated, for example, that "many times" previous employers have "terminated [him] after short period[s] of time... due to visual problems," and that he "frequently visit[s] mall store[s] to put in applications for employment." (AR 197, 209, 213). The ALJ noted that plaintiff told an examining psychologist that he "spends a lot of time on job searching." (AR 19, 258). In addition, plaintiff received a bachelor of arts degree in 2003, suggesting he may not have been able to engage in full-time employment until then, and he testified that he had never "been hired for more than part-time" work. (AR 33-34, 37). The ALJ did not cite any evidence to support his statement that plaintiff's interest in working is questionable, and the Court finds none.

Defendant argues that the ALJ also relied on plaintiff's daily activities in discounting plaintiff's credibility. (Defendant's Motion at 5) (citing AR 19). Although the ALJ listed plaintiff's daily activities as reported to an examining psychologist (AR 19), the ALJ did not expressly rely on plaintiff's daily activities in evaluating his credibility. (See AR 20). In any event, plaintiff's daily activities do not undermine his credibility. As the ALJ summarized, the psychologist reported that plaintiff "spends a lot of time on job searching, watching television, playing video games, writing lyrics, going to the movies, attending sporting events and doing chores around the house including laundry and washing clothes." (AR 19 (citing Exhibit 1F [AR 256-62])). However, plaintiff provided other descriptions of his daily activities that illuminate the difficulties caused by his impairment. For example, he stated that he requires assistance with shaving and "color coordination" of his clothing; he needs help with shopping to identify items that are labeled in small print; he can only do the laundry if it is pre-sorted; he cannot clean satisfactorily; he experiences difficulty crossing streets and was hit by a car; he cannot read bus schedules or street signs from a distance or at night; he must sit very close to television, computer or movie screens; and he does not attend sporting events because he cannot see very well from most seats. (AR 209-13, 343). These statements do not undermine plaintiff's subjective symptom testimony or indicate that plaintiff is able to work. See Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) ("[T]he mere fact that a plaintiff has carried on certain daily activities... does not in any way detract from her credibility as to her overall disability. One does not need to be 'utterly incapacitated' in order to be disabled." (quoting Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001))). This reason, too, fails to detract from plaintiff's credibility.

Finally, the ALJ states that the objective medical evidence does not fully support plaintiff's subjective complaints. (AR 20). As detailed above, the ALJ did not provide any other valid reason for discounting plaintiff's credibility. Lack of objective medical evidence to support subjective symptom allegations is not alone sufficient to discount a claimant's credibility. See Burch, 400 F.3d at 681. Therefore, remand is warranted for the ALJ to reassess plaintiff's credibility.*fn3


For the foregoing reasons, the decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrative action consistent with this Opinion.*fn4


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