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Raedene Marlene Chico v. Michael J. Astrue

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION


October 19, 2012

RAEDENE MARLENE CHICO,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,
DEFENDANT.

The opinion of the court was delivered by: Marc L. Goldman United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Raedene Marlene Chico ("Plaintiff") seeks judicial review of the Commissioner's final decision denying her applications for disability insurance benefits ("DIB") and supplemental security income benefits ("SSI"), pursuant to Titles II and XVI of the Social Security Act. For the reasons stated below, the Commissioner's decision is remanded for further proceedings.

I. Factual and Procedural Background

Plaintiff was born on May 29, 1978 and was 30 years old at the time she filed her applications for benefits. (Administrative Record ("AR") at 136). She has work experience as a dispatcher. (AR at 67).

On January 30, 2009, Plaintiff filed applications for DIB and SSI, alleging that she has been disabled since May 14, 2008, due to a back injury, pain and numbness in her legs, depression, and anxiety. (AR at 167). The Social Security Administration denied Plaintiff's applications by initial determination. (AR at 60, 79-83).

An administrative hearing was held before Administrative Law Judge ("ALJ") Selwyn Walters on March 19, 2010. (AR at 16-54). Plaintiff, who was represented by counsel, testified at the hearing. (AR at 22-50). In a written decision dated May 28, 2010, the ALJ found: Plaintiff had not engaged in substantial gainful activity since May 14, 2008, the date she filed applications for DIB and SSI (step one); Plaintiff has medically determinable severe impairments of degenerative disc disease, an annular tear at L5-S1 of the lumbosacral spine and obesity (step two); Plaintiff's impairments did not meet or equal any impairment in the Listings of Impairments (step three); Plaintiff retained the residual functional capacity ("RFC") to perform light work except she would need to alternate sitting and standing once an hour for 10 minutes at a time in addition to regularly scheduled breaks; and Plaintiff would be able to perform her past relevant work as a dispatcher (step four). (AR at 60-68). Accordingly, the ALJ determined that Plaintiff was not disabled. (AR at 68).

On January 24, 2012, the Appeals Council denied review, and the ALJ's decision became the final decision of the Commissioner. (AR at 73-77). Plaintiff commenced this action for judicial review on April 19, 2012. The parties filed a Joint Stipulation of disputed issues of law and fact on October 4, 2012. Plaintiff contends that the ALJ: (1) failed to properly evaluate Plaintiff's credibility; and (2) failed to properly evaluate the opinions of Plaintiff's physicians. (Joint Stipulation at 4-7, 11-16, 17-18). Plaintiff seeks remand for payment of benefits or, in the alternative, remand for further proceedings. (Joint Stipulation at 18). The Commissioner requests that the ALJ's decision be affirmed. (Joint Stipulation at 19).

II. Standard of Review

Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The Commissioner's or ALJ's findings and decision should be upheld if they are free from legal error and are supported by substantial evidence based on the record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less than a preponderance. Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). "If the evidence can reasonably support either affirming or reversing," the reviewing court "may not substitute its judgment" for that of the Commissioner. Id. at 720-721.

III. Discussion

A. Plaintiff's Credibility

Plaintiff alleges she suffers from significant pain and limitations due to her low back impairment. (AR 30-39). She alleges that she can stand for 10 to 15 minutes and sit for approximately 30 minutes at a time. (AR at 40, 49). Plaintiff stated that she needs help with activities such as cooking, laundry, washing dishes, making her bed, vacuuming, cleaning the house, and fixing her hair. (AR at 40-42).

The ALJ found Plaintiff's subjective symptom testimony not fully credible. (AR at 65-66). The ALJ explained that Plaintiff's medically determinable impairments could reasonably be expected to cause the pain symptoms, but that Plaintiff's allegations concerning the intensity, persistence, and limiting effects of her symptoms were not credible to the extent alleged. (AR at 66). The ALJ based this adverse credibility determination on a lack of objective medical evidence to substantiate the severity of Plaintiff's symptoms and inconsistent test results on lumbosacral spine examinations. (AR at 65-66).

However, it is improper to discount a claimant's credibility solely due to a lack of objective medical evidence to corroborate a claimant's subjective symptom testimony, where, as in this case, there is objective medical evidence of underlying impairments. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) ("Once the claimant produces objective medical evidence of an underlying impairment, an adjudicator may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain."); see also Reddick, 157 F.3d at 722; Smolen v. Chater, 80 F.3d 1273, 1281--82 & n. 2 (9th Cir. 1996). Where there is no evidence of malingering, the ALJ may reject the subjective symptom testimony only by offering "specific, clear and convincing reasons for doing so." Smolen, 80 F.3d at 1283--84; see also Reddick, 157 F.3d at 722. The ALJ failed to do so here.

The Commissioner asserts that there were other valid reasons for discounting Plaintiff's credibility, including evidence of malingering, inconsistent statements regarding daily activities, and lack of mental health treatment. (Joint Stipulation at 8-10). The ALJ, however, did not cite any of these other reasons as a basis for discounting Plaintiff's testimony. For example, while the ALJ noted that Plaintiff's lumbosacral spine test results were inconsistent and "rather odd," the ALJ never found Plaintiff to be a malingerer.*fn1 (AR at 66, 416, 462, 465). There was no medical opinion in the record suggesting that lack of effort or malingering was related to the "widely disparate" lumbosacral spine test results. (AR at 66). The Commissioner also notes inconsistent statements regarding Plaintiff's daily activities as a basis to reject Plaintiff's credibility. (Joint Stipulation at 8-9; AR at 40-43, 65, 411); Bunnell, 947 F.2d at 346. Although the ALJ discussed Plaintiff's statements about her daily activities in the decision, the ALJ did not identify any inconsistencies in Plaintiff's statements; nor did the ALJ rely on any purported inconsistent statements to reject Plaintiff's testimony.*fn2 Plaintiff's lack of mental health treatment was also not cited by the ALJ in his evaluation of Plaintiff's credibility. (Joint Stipulation at 10; AR at 66). Rather, in the decision, the ALJ merely noted that Plaintiff took psychiatric medications, but "stopped seeing a psychiatrist after a short while." (AR at 66).

The Court cannot rely on reasons that the ALJ did not mention to support the adverse credibility finding. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (error to affirm ALJ's credibility decision based on reasons not cited by the ALJ); Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) ("[W]e cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision.") (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).

IV. Conclusion

Accordingly, the case is remanded for further proceedings consistent with this opinion and order so that the ALJ may further evaluate Plaintiff's subjective symptom testimony and credibility. See Bunnell v. Barnhart, 336 F.3d 1112, 1115-16 (9th Cir. 2003) (where there are outstanding issues that must be resolved before a determination of disability can be made, and it is not clear from the record that the ALJ would be required to find the claimant disabled if all the evidence were properly evaluated, remand is appropriate).*fn3


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