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Phillips v. Colvin

United States District Court, C.D. California

January 28, 2015

CAROLYN W. COLVIN, Commissioner of Social Security, Defendant

For Donna Hearn Phillips, Plaintiff: Monica Perales, LEAD ATTORNEY, Law Offices of Lawrence D Rohlfing, Santa Fe Springs, CA.

For Carolyn W Colvin, Acting Commissioner of Social Security, Defendant: Susan L Smith, LEAD ATTORNEY, SAUSA - Office of U.S. Attorney, San Francisco, CA; Assistant U.S. Attorney LA-CV, Office of U.S. Attorney, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, Office of the General Counsel for Social Security Adm., San Francisco, CA.


CARLA M. WOEHRLE, United States Magistrate Judge.


On November 18, 2013, Donna Hearn Phillips (" Plaintiff") filed a Complaint seeking review of the Commissioner's denial of her application for disability insurance benefits. Thereafter, the parties filed a Consent to Proceed Before United States Magistrate Judge Carla Woehrle. On June 10, 2014, Defendant filed an Answer to Complaint. On October 17, 2014, the parties filed their Corrected Joint Stipulation.

As discussed below, the Court finds that the Commissioner's decision should be reversed and this matter remanded for further proceedings.


On December 7, 2009, Plaintiff filed an application for disability insurance benefits. (Administrative Record [" AR" ] at 158-61.) Plaintiff alleged that, beginning on October 30, 2008, she was unable to work due to a herniated disk compressing her back and leg nerves, wrist problems, depression and anxiety. (AR at 107, 117, 158.) The Commissioner denied Plaintiff's application initially and upon review. (AR at 107-10, 117-22.)

On or about January 13, 2011, Plaintiff requested a hearing before an Administrative Law Judge (" ALJ"). (AR at 123-24.) The ALJ conducted a hearing on February 27, 2012. (AR at 71-95.) Plaintiff appeared at the hearing with her counsel and testified. (AR at 75-86, 87-88, 91-94.) A vocational expert (" VE") also testified. (AR at 86-91.)

On April 24, 2012, the ALJ issued his decision denying benefits. (AR at 26-42.) In his decision, the ALJ found that Plaintiff suffers from " disorders of the back, " which are " severe" impairments. (AR at 31.) Nevertheless, the ALJ concluded that Plaintiff retains the residual functional capacity (" RFC") to " perform sedentary work... except [she must have the ability to] alternate between sitting and standing throughout the workday at her discretion without interference in the performance of her work duties." (AR at 32.)

The ALJ determined that Plaintiff would not be able to perform her past relevant work as a secretary, administrative assistant, and receptionist. (AR at 35.) Nevertheless, considering Plaintiff's age, education, work experience, and residual functional capacity, there were significant numbers of jobs that she would be able to perform. Specifically, the ALJ found that Plaintiff would be able to perform the jobs of optical assembler, assembler of buttons and notions, and food and beverage order clerk. (AR at 36.) Ultimately, the ALJ concluded that Plaintiff was not disabled pursuant to the Social Security Act. (AR at 37.)

On June 12, 2012, Plaintiff filed a timely request with the Appeals Council for a review of the ALJ's decision. (AR at 22.) The Appeals Council subsequently affirmed the ALJ's decision. (AR at 11-16.)


In the Joint Stipulation, Plaintiff raises the following issues:

1. Whether the ALJ properly found that there were a significant number of jobs that Plaintiff could perform.

2. Whether the ALJ properly assessed Plaintiff's subjective pain testimony.

Because Issue Two is dispositive, the Court need not reach Plaintiff's remaining claim.


Under 42 U.S.C. § 405(g), this Court reviews the ALJ's decision to determine whether the ALJ's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means " more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). In other words, it is " such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401.

In determining whether substantial evidence supports the ALJ's findings, the Court must review the record as a whole and consider " both the evidence that supports and the evidence that detracts from the Commissioner's conclusion[s]." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). " If the evidence can reasonably support either affirming or reversing, " the Court " may not substitute its judgment" for that of the ALJ, and the ALJ's decision must be upheld. Id. at 720-21; see also Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).


A. The Sequential Evaluation

To be eligible for disability benefits a claimant must demonstrate a medically determinable impairment which prevents the claimant from engaging in substantial gainful activity and which is expected to result in death or to last for a continuous period of at least twelve months. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Reddick, 157 F.3d at 721; 42 U.S.C. § 423(d)(1)(A).

Disability claims are evaluated using a five-step test. See 20 C.F.R. § § 404.1520, 416.920. At step one, the ALJ determines if the claimant is engaging in " substantial gainful activity." 20 C.F.R. § § 404.1520(a)(4)(i), 416.920(a)(4)(i). If he is, the claimant is found not disabled. If he is not, the ALJ proceeds to step two.

At step two, the ALJ determines whether the claimant has a " severe" impairment or combination of impairments. 20 C.F.R. § § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment is " severe" if it significantly limits the claimant's ability to perform basic work activities and is expected to persist for a period of twelve months or longer. See Bowen v. Yuckert, 482 U.S. 137, 141, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). If the claimant does not have a " severe" impairment or combination of impairments, disability benefits are denied. 20 C.F.R. § § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the impairment or combination of impairments is " severe, " the ALJ proceeds to step three.

At step three, the ALJ determines whether the claimant's impairment or combination of impairments meets or equals an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1. 20 C.F.R. § § 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If so, the claimant is automatically determined disabled. See 20 C.F.R. § § 404.1520(d), 416.920(d). If not, the ALJ proceeds to step four.

At step four, the ALJ must assess the claimant's residual functional capacity (" RFC"). The RFC is the " most [one] can still do despite [his or her] limitations" and represents an assessment " based on all the relevant evidence." 20 C.F.R. § § 404.1545(a)(1), 416.945(a)(1). The ALJ then must determine whether the claimant's RFC is sufficient for the claimant to perform past relevant work. 20 C.F.R. § § 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant is capable of performing past relevant work, the claimant is not disabled. If the claimant is no longer capable of past relevant work, the ALJ proceeds to step five. See 20 C.F.R. § § 404.1520(f), 416.920(f).

At the fifth and final step, the ALJ determines whether, considering claimant's RFC, age, education, and work experience, the claimant is able to perform other work that is available in significant numbers in the national economy. 20 C.F.R. § § 404.1520(a)(4)(v), 416.920(a)(4)(v). If he is, the claimant is not disabled. If he is not, the claimant is disabled and entitled to benefits. Id.

Claimants have the burden of proof at steps one through four, subject to the presumption that Social Security hearings are nonadversarial and to the Commissioner's affirmative duty to assist claimants in fully developing the record even if they are represented by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). If this burden is met, a prima facie case of disability is made, and the burden shifts to the Commissioner at step five. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § § 404.1520, 416.920.

B. Issue Two: Credibility

Plaintiff contends that the ALJ failed to set forth legally sufficient reasons for rejecting her credibility. (Joint Stip. at 12-19.)

An ALJ must engage in a two-step analysis to determine whfether a claimant's testimony regarding subjective pain is credible. 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. at 1036. The claimant is not required to show that his impairment " could reasonably be expected to cause the severity of the symptom [he] has alleged; [he] need only show that it could reasonably have caused some degree of the symptom." Id. " If the claimant meets the first test and there is no evidence of malingering, the ALJ can only reject the claimant's testimony about the severity of the symptoms if [he] gives 'specific, clear and convincing reasons' for the rejection." Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)(quotation omitted).

In this case, Plaintiff alleges disability due to back pain that radiates to her legs, wrist and hand problems, and depression. (AR at 107, 117.) She completed an Exertion Questionnaire on January 24, 2010. She reported being in constant pain even with medication, napping for ninety minutes a day, and wearing a back brace. (AR at 189-91.)

At the February 27, 2012 hearing, Plaintiff testified that she could lift up to ten pounds, sit for ten to fifteen minutes at a time for a total of two hours out of an eight-hour workday, and stand for a total of an hour and a half out of an eight-hour workday. (AR at 82, 84-85.) Plaintiff said she spends most of the day lying down. (AR at 85.) She further reported that her medication causes drowsiness. (AR at 85-86.)

In his decision, the ALJ found that Plaintiff's subjective complaints were " not credible to the extent they [were] inconsistent with the [ALJ's] residual functional capacity assessment." (AR at 33.) The ALJ, however, gave only one reason for rejecting Plaintiff's credibility, specifically, the " lack of physical objective medical evidence" supporting her complaints. (See AR at 35.) It is well established that the absence of supporting medical evidence alone is not a sufficient reason to reject a plaintiff's credibility. See, e.g., Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005)(" In evaluating the credibility of pain testimony after a claimant produces objective medical evidence of an underlying impairment, an ALJ may not reject a claimant's subjective complaints based solely on a lack of medical evidence to fully corroborate the alleged severity of pain."). Accordingly, the Court finds that the ALJ failed to provide sufficient reasons for rejecting Plaintiff's credibility, and remand on this issue is required.

C. Remand is Required to Remedy the Defects in the ALJ's Decision

The decision whether to remand for further proceedings is within the discretion of the district court. Harman v. Apfel, 211 F.3d 1172, 1175-1178 (9th Cir. 2000). Where there are outstanding issues that must be resolved before a determination 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. Id. at 1179. However, where no useful purpose would be served by further proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. Id. (decision whether to remand for further proceedings turns upon their likely utility).

Here, even crediting Plaintiff's testimony as true, her entitlement to benefits is not clear from the existing record because Plaintiff's testimony does not establish specific functional limitations that would necessarily preclude her from work in the national economy, and there is no vocational expert opinion of disability corresponding to Plaintiff's testimony. See id. at 1180 (remanding for further proceedings in part because there was no testimony from the vocational expert that the limitations established by the record would render Plaintiff unable to engage in any work). Accordingly, remand for further proceedings is appropriate. [1]


Accordingly, IT IS ORDERED that:

1. The decision of the Commissioner is REVERSED.

2. This action is REMANDED to defendant, pursuant to Sentence Four of 42 U.S.C. § 405(g), for further proceedings as discussed above.

3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel.


IT IS ADJUDGED that this action is remanded to defendant for further proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g) and consistent with the accompanying Decision and Order.

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