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Susanne Bean v. Michael J. Astrue


December 21, 2012


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



On May 30, 2012, plaintiff Susanne Bean ("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; June 1, 2012 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 Opinion and Order of Remand.

II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION On December 12, 2008, plaintiff filed an application for Supplemental

Security Income benefits. (Administrative Record ("AR") 126). Plaintiff asserted that she became disabled on February 1, 1994, due to lumbar disc disease, a panic disorder, hearing loss, fatigue syndrome, depression, headaches and diabetes. (AR 143). The Administrative Law Judge ("ALJ") examined the medical record and heard testimony from plaintiff (who was represented by counsel) and a vocational expert on July 14, 2010. (AR 22-45).

On December 21, 2010, the ALJ determined that plaintiff was not disabled through the date of the decision. (AR 10-17). Specifically, the ALJ found:

(1) plaintiff suffered from the following severe impairments: chronic fatigue syndrome by history, diabetes, and lumbar sprain/strain (AR 12); (2) plaintiff's impairments, considered singly or in combination, did not meet or medically equal a listed impairment (AR 12); (3) plaintiff retained the residual functional capacity to perform the full range of light work (20 C.F.R. § 416.967(b)) (AR 12);

(4) plaintiff could perform her past relevant work as a caterer/helper (AR 16);

(5) alternatively, there are jobs that exist in significant numbers in the national economy that plaintiff could perform (AR 16-17); and (6) plaintiff's allegations regarding her limitations were not credible to the extent they were inconsistent with the ALJ's residual functional capacity assessment (AR 14).

The Appeals Council denied plaintiff's application for review. (AR 1).


A. Sequential Evaluation Process

To qualify for disability benefits, a claimant must show that the claimant is unable "to engage in any substantial gainful activity by reason of any 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 not less than 12 months." Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted). The impairment must render the claimant incapable of performing the work claimant 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 the claimant's 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 claimant's 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 the claimant 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); see also Molina, 674 F.3d at 1110 (same).

The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098); see also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (claimant carries initial burden of proving disability).

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).


Plaintiff contends that the ALJ failed properly to evaluate the credibility of her subjective complaints. (Plaintiff's Motion at 4-9). The Court agrees. As the Court cannot find that the ALJ's error was harmless, a remand is warranted.

A. Pertinent Law

Questions of credibility and resolutions of conflicts in the testimony are functions solely of the Commissioner. Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). If the ALJ's interpretation of the claimant's testimony is reasonable and is supported by substantial evidence, it is not the court's role to "second-guess" it. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).

An ALJ is not required to believe every allegation of disabling pain or other non-exertional impairment. Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). If the record establishes the existence of a medically determinable impairment that could reasonably give rise to symptoms assertedly suffered by a claimant, an ALJ must make a finding as to the credibility of the claimant's statements about the symptoms and their functional effect. Robbins, 466 F.3d 880 at 883 (citations omitted). Where the record includes objective medical evidence that the claimant suffers from an impairment that could reasonably produce the symptoms of which the claimant complains, an adverse credibility finding must be based on clear and convincing reasons. Carmickle v. Commissioner, Social Security Administration, 533 F.3d 1155, 1160 (9th Cir. 2008) (citations omitted). The only time this standard does not apply is when there is affirmative evidence of malingering. Id. The ALJ's credibility findings "must be sufficiently specific to allow a reviewing court to conclude the ALJ rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit the claimant's testimony." Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004).

To find the claimant not credible, an ALJ must rely either on reasons unrelated to the subjective testimony (e.g., reputation for dishonesty), internal contradictions in the testimony, or conflicts between the claimant's testimony and the claimant's conduct (e.g., daily activities, work record, unexplained or inadequately explained failure to seek treatment or to follow prescribed course of treatment). Orn, 495 F.3d at 636; Robbins, 466 F.3d at 883; Burch, 400 F.3d at 680-81; SSR 96-7p. Although an ALJ may not disregard such claimant's testimony solely because it is not substantiated affirmatively by objective medical evidence, the lack of medical evidence is a factor that the ALJ can consider in his credibility assessment. Burch, 400 F.3d at 681.

B. Analysis

Here, the ALJ found plaintiff's subjective symptom testimony "not credible to the extent [it was] inconsistent with the [ALJ's] residual functional capacity assessment." (AR 14). The ALJ provided several conclusory reasons for discounting plaintiff's credibility. The Court finds none of them to be clear and convincing.

First, it appears that the ALJ discounted plaintiff's credibility because plaintiff "received conservative sporadic treatment." (AR 14). The ALJ was permitted to discounted plaintiff's credibility based on any unexplained failure to seek treatment consistent with the alleged severity of her subjective complaints. See Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (en banc) (In assessing credibility, the ALJ may properly rely on plaintiff's unexplained failure to request treatment consistent with the alleged severity of her symptoms.). Here, however, the ALJ did not specify particular subjective complaints for which plaintiff allegedly did not seek adequate treatment, nor did the ALJ identify the evidentiary basis for his finding that plaintiff had failed to seek treatment consistent with her subjective complaints. The ALJ's conclusory finding that plaintiff's treatment for unspecified impairments had been "conservative" or "sporadic" is not a clear and convincing reason for discounting plaintiff's credibility. Moisa, 367 F.3d at 885.

Second, the ALJ's citation to basically all of plaintiff's medical records, and conclusory assertion that such records "do not establish an inability to perform work activity for any twelve month period of time" (AR 14) (citing Exhibits B1F at 2-29 [AR 209-36]; B2F at 2-7 [AR 238-43]; B3F at 2-57 [AR 245-300]; B10F at 2-22 [AR 335-55]) does not provide a clear and convincing reason for discounting plaintiff's credibility. Moisa, 367 F.3d at 885.

Finally, the ALJ also suggests that plaintiff is not fully credible because the objective medical evidence does not support her subjective complaints (i.e., "[Plaintiff's] records do not support the degree of limitations she is alleging or greater work restrictions beyond those in the residual functional capacity herein."). (AR 13, 14). As detailed above, however, the ALJ did not provide any other valid reason for discounting plaintiff's credibility. Lack of objective medical evidence to support subjective symptom allegations alone is not sufficient to discount a claimant's credibility. See Burch, 400 F.3d at 681. *fn1

The Court cannot conclude that the above errors were harmless because it cannot "confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different disability determination." Stout, 454 F.3d at 1055-56. At the administrative hearing, plaintiff testified, in essence, that she is sick and weak most of the time, she requires a cane to ambulate, sometimes she is unable to get out of her bed, she has lost a significant amount of weight, and her daughter "does most of everything for [her] now." (AR 33-39). In written statements she submitted, plaintiff stated, inter alia, that (i) she suffers from daily headaches; (ii) she "can't do anything anymore" and when she tries to do things she "get[s] really sick"; (iii) her condition affects her abilities to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, see, hear, remember, complete tasks, concentrate, understand, and follow directions; (iv) she cannot walk more than a block before needing to rest; (v) she cannot pay attention for more than 15-30 minutes at a time; (vi) she has panic attacks and cries every day; (vii) she has unbearable back pain and pain in both knees, and "is in pain all the time"; (viii) her pain medication helps a little but makes her very sleepy; (ix) she cannot sit due to her back pain; (x) she can relieve the pain only by taking pain medication and then laying on her couch; and (xi) she has about 20-25 "bad days" a month. (AR 159-60, 169-76, 182-83, 195).

Therefore, remand is warranted at least so the ALJ can reassess plaintiff's credibility.


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.*fn3


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