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Snyder v. Colvin

United States District Court, S.D. California

April 17, 2017

John Willard Snyder, Plaintiff,
v.
Carolyn W. Colvin, Defendant.

          REPORT AND RECOMMENDATION [ECF 17, 19]

          HON. JILL L. BURKHARDT UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on cross-motions for summary judgment. (ECF Nos. 17, 19.) Plaintiff John Willard Snyder moves under 42 U.S.C. § 405(g)[1] for judicial review of the Commissioner of Social Security Carolyn Colvin's (“Commissioner”) final decision denying his claim for a period of disability and disability insurance benefits.

         This Report and Recommendation is submitted to United States District Judge Roger T. Benitez pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.1(c) of the United States District Court for the Southern District of California. After careful review of the moving and opposing papers, the administrative record, the facts, and the applicable law, the Court hereby RECOMMENDS that Plaintiff's motion for summary judgment (ECF No. 17) be GRANTED IN PART AND DENIED IN PART. The Court further RECOMMENDS that the Commissioner's cross-motion for summary judgment affirming the Administrative Law Judge's (“ALJ”) decision (ECF No. 19) be DENIED and the case be REMANDED for further administrative proceedings.

         I. BACKGROUND

         Plaintiff filed an application for a period of disability and disability insurance benefits on November 4, 2011, alleging disability commencing September 1, 2003.[2] (ECF No. 12-3 at 3.) The Commissioner denied the claims by initial determination on April 12, 2012. (Id. at 12.) Plaintiff requested reconsideration of the initial determination on May 31, 2012. (Id. at 14.) The Commissioner denied reconsideration on February 25, 2013. (ECF No. 12-4 at 2.) Plaintiff requested a de novo hearing before an ALJ on April 25, 2015. (Id. at 18.) The Commissioner granted this request and appointed an ALJ. (Id. at 21-22.) On May 8, 2014, Plaintiff, his attorney, and a vocational expert appeared before the ALJ, Mason D. Harrell, Jr. (ECF No. 12-2 at 37.) In a decision dated May 30, 2014, the ALJ issued an unfavorable decision and found Plaintiff was not disabled through the last date insured. (Id. at 29.)

         Thereafter, the Social Security Administration Appeals Council denied Plaintiff's request for review of the ALJ's unfavorable decision, making the ALJ's decision the final decision of the Commissioner. (Id. at 2.) Plaintiff then commenced this instant action for judicial review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

         II. STANDARD OF REVIEW

         The Social Security Act allows for unsuccessful applicants to seek judicial review of the Commissioner's final agency decision.[3] The scope of judicial review, however, is limited. The Commissioner's final decision should not be disturbed unless: (1) the ALJ's findings are based on legal error; or (2) the ALJ's determinations are not supported by substantial evidence in the record as a whole.[4] Substantial evidence is “more than a mere scintilla, but may be less than a preponderance.”[5] Substantial evidence is “relevant evidence that, considering the entire record, a reasonable person might accept as adequate to support a conclusion.”[6]

         In making this determination, the Court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion.[7] Where the evidence can reasonably be construed to support more than one rational interpretation, the Court must uphold the ALJ's decision.[8] This includes deferring to the ALJ's credibility determinations and resolutions of evidentiary conflicts.[9]

         III. THE ALJ'S DECISION

         Utilizing the five-step disability evaluation process, [10] the ALJ first found that Plaintiff had not engaged in substantial gainful activity since November 4, 2011, the date of Plaintiff's application for disability insurance benefits. (ECF No. 12-2 at 24.) Although Plaintiff had worked since his application date, the ALJ found that the work was not substantial gainful activity because Plaintiff was fired. (Id.) The ALJ then found that Plaintiff had the following severe impairments: osteoarthritis of bilateral hands; degenerative arthritis of bilateral hips; sleep apnea; mixed personality disorder; anxiety disorder; and depression.[11] (Id.) Next, the ALJ found that Plaintiff does not have an impairment or a combination of impairments that meet the severity required to stop analysis at step three and award benefits. (Id.) In making this determination, the ALJ found that Plaintiff has only mild restrictions in his daily living activities. (Id. at 25.) At the fourth step, the ALJ found that Plaintiff has the residual functional capacity (“RFC”) to perform light work:

except he can lift 20 pounds occasionally and 10 pounds frequently. He can be on his feet for 6 hours of an 8-hour workday and sit for 6 hours. Forceful grasping can be performed only up to 20 pounds occasionally and 10 pounds frequently. He should not drive. Mentally, the claimant can perform routine, repetitive non-public tasks, without hypervigilance, no quick decision-making or fast-paced work and only non-intense superficial interactions with co-workers.

(Id.)

         At step five, the ALJ determined that, considering Plaintiff's age, education, work experience, and RFC, there were jobs in significant numbers in the national economy that Plaintiff could perform. (Id. at 28.) The ALJ relied on the testimony of the vocational expert to determine that Plaintiff could work as a silver wrapper, a cleaner, or a housekeeper.[12] (Id. at 28-29.) The ALJ then concluded that Plaintiff “has not been under a disability, as defined by the Social Security Act, since November 4, 2011, the date the application was filed.” (Id. at 29.)

         IV. DISCUSSION

         A. Plaintiff's Background

         Plaintiff is a fifty-three-year-old homeless male with a tenth-grade education. (ECF No. 12-2 at 41, 48.) He was last employed as a driver by County Motor Parts in 2013 but claims he was fired because his job duties were too physically and mentally difficult for him to perform. (Id. at 38-39.) In 2001, Plaintiff was hired as a Domino's Pizza delivery driver and worked for two years, but was laid off from that position as well. (ECF No. 12-6 at 7, 32.) He also worked as a video salesman “on and off” from 1996 to 2011. (Id. at 7.)

         Plaintiff's daily activities are limited in that he does not prepare meals for himself and he does not perform any household chores. (Id. at 28-29.) Using food stamps, he shops for food about ten minutes every day, often for a sandwich or at a fast food restaurant. (ECF No. 12-2 at 49; ECF No. 12-6 at 29.) He has no hobbies and does not engage in any social activities. (ECF No. 12-6 at 30.) A “typical day” for him includes sitting in the park and going over his life. (ECF No. 12-2 at 48.)

         Concerning the severity of Plaintiff's symptoms, Plaintiff alleges in his disability application that acute anxiety, depression, high blood pressure, high cholesterol and an enlarged prostate limit his ability to work. (ECF No. 12-6 at 6.) He takes medication for his anxiety, high blood pressure, and prostate. (ECF No. 12-2 at 46; ECF No. 12-6 at 56.) In Plaintiff's Social Security Administration Function Report, he also alleges constant pain in his back and hips, arthritis in his fingers, and difficulty walking. (ECF No. 12-6 at 24.)

         Throughout the Administrative Record, Plaintiff also alleges the following: He cannot walk half a block before needing to rest. (Id. at 31, 54.) Most days he spends approximately six hours lying down on his back and standing for more than fifteen minutes is difficult for him. (ECF No. 12-2 at 51.) His arthritis affects his ability to hold things. (Id.) In 1997, Plaintiff's ability to use his left hand decreased “due to a ‘severe infection, '” which required surgery. (ECF No. 12-7 at 16, 35, 121.) Since January 1, 2006, Plaintiff alleges to have been homeless. (ECF No. 12-5 at 3; ECF No. 12-7 at 34.) He is constantly anxious and deals with anxiety problems four times a week minimally. (ECF No. 12-2 at 39; ECF No. 12-6 at 46.) He has anxiety from being in enclosed rooms and often feels overwhelmed. (ECF No. 12-2 at 45, 47.) Following written and spoken instructions is difficult for him, and he has trouble staying focused. (Id. at 42; ECF No. 12-6 at 31, 54.) He can only pay attention for five to fifteen minutes. (ECF No. 12-6 at 202, 225.) For the last fifteen to twenty years Plaintiff has suffered from depression and has thoughts of suicide. (ECF No. 12-2 at 44, 52; ECF No. 12-6 at 55.) He “burns himself with cigarettes” and “cut his leg with a machete in 2005.” (ECF No. 12-6 at 75.) He was sexually abused as a child and has a history of polysubstance abuse but has been sober for more than twenty years. (ECF No. 12-3 at 7; ECF No. 12-7 at 36-38, 135-36.) Sleeping is difficult for him, and he goes without sleeping for days or sleeps only two to three hours in a night. (ECF No. 12-6 at 27, 55, 75; ECF No. 12-7 at 6-7, 9, 35.)

         B. The ALJ Erred in Evaluating Plaintiff's Credibility

         In the hearing decision, the ALJ concluded that Plaintiff's “statements concerning the intensity, persistence and limiting effects of [his] symptoms are not entirely credible.” (ECF No. 12-2 at 26.) The ALJ discredited statements concerning Plaintiff's symptoms from arthritis and anxiety, but did not specifically address Plaintiff's statements concerning symptoms from his other severe impairments: sleep apnea, mixed personality disorder, and depression. (See ECF No. 12-2.) With respect to Plaintiff's alleged symptoms caused by arthritis and anxiety, the ALJ's reasons for discrediting Plaintiff's testimony appear to be that: (1) the medical record does not support the alleged severity of Plaintiff's symptoms; (2) Plaintiff has a limited medical record and pursued a conservative course of treatment; and (3) Plaintiff did not appear anxious or uncomfortable at the hearing. (ECF No. 12-2 at 26-27.)

         Plaintiff moves for summary judgment on the ground that the ALJ failed to meet the clear and convincing legal standard for discrediting Plaintiff's testimony concerning the intensity of his symptoms.[13] (ECF No. 17-1 at 2:11-13, 6:9-11.) Respondent disagrees. (ECF Nos. 19, 20.) For the reasons explained below, the Court concludes that the ALJ erred by failing to articulate clear and convincing reasons to discredit Plaintiff's statements concerning the intensity, persistence and limiting effects of his symptoms. The Court further concludes remand is appropriate.

         i . Legal Standard

         If an ALJ finds that a claimant's testimony as to the severity of his pain and impairments is unreliable, the ALJ is required to make “a credibility determination with findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony.”[14] As outlined by the Ninth Circuit, there is a two-step process an ALJ is to employ to assess subjective pain testimony.[15] “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.'”[16] Absent such evidence, subjective pain testimony may be disregarded.[17]Second, if the ALJ determines that the claimant meets this threshold, “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.'”[18]

         To support a finding that the claimant was not credible, the ALJ must “point to specific facts in the record which demonstrate that [the claimant] is in less pain than [he] claims.”[19] The ALJ must make specific findings “stat[ing] which pain testimony is not credible and what evidence suggests the complaints are not credible.”[20] The ALJ can consider the following when assessing the claimant's credibility: (1) his reputation for truthfulness; (2) inconsistences in either his testimony or between his testimony and his conduct; (3) his daily activities; (4) his work record; and (5) testimony from physicians and third parties concerning the nature, severity, and effect of his condition.[21]

The reviewing court must bear in mind that it should not “second-guess” an ALJ's credibility determination.[22] Accordingly, where an ALJ's credibility determination is supported by substantial evidence, it will not be disturbed even where some of the reasons for discrediting the claimant's testimony are improper.[23] However, “[t]he clear and convincing standard is the most demanding required in Social Security cases, ”[24] and thus, the standard “is not an easy requirement to meet.”[25]

         Courts may only review the ALJ's articulated rationale, and “[i]f the [ALJ's] decision on its face does not adequately explain how a conclusion was reached, that alone is grounds for remand.”[26] The Ninth Circuit has sympathized with the “large volume of disability cases that the agency must adjudicate, ” but “each case represents a citizen's claim of serious disability, ” and accordingly, courts should not take lightly their responsibility under 42 U.S.C. § 405(g).[27] Courts in their reviewing authority “should not be forced to speculate” the reasoning behind the ALJ's findings.[28]

         Here, the parties do not dispute that the ALJ reasonably concluded that Plaintiff's “medically determinable impairments could reasonably be expected to cause some of the alleged symptoms.” (ECF No. 12-2 at 26.) The ALJ did not find any evidence of malingering, but nonetheless discredited Plaintiff's statements concerning the intensity, persistence and limiting effects of the alleged symptoms reasonably caused by his medically determinable impairments. (Id.) Plaintiff argues that the ALJ's decision must be reversed as legally erroneous because the ALJ failed to articulate sufficient reasons to find Plaintiff not credible. (ECF No. 17-1 at 3:24-25, 4:1-2.) Defendant disagrees, contending that the ALJ provided “specific, independent, and well supported bases for discounting [Plaintiff]'s allegations.” (ECF No. 19-1 at 7.) Consequently, the Court must assess whether the ALJ provided clear and convincing reasons for discrediting Plaintiff's testimony concerning his subjective pain that are supported by substantial evidence in the record.

         ii. Objective Medical Evidence

         Plaintiff argues that the ALJ improperly rejected his credibility solely on the basis that Plaintiff's testimony was unsupported by objective medical evidence, and thus, the ALJ's adverse credibility finding is insufficient as a matter of law. (ECF No. 17-1 at 7:4- 6, 8:1-2 (emphasis added).) Plaintiff further argues that once the ALJ established the presence of a severe medical impairment, the ALJ was required to articulate clear and convincing reasons to reject Plaintiff's testimony, but failed to do so. (Id. at 8.) Defendant counters by arguing that Plaintiff misstates the ALJ's findings because the ALJ properly relied on Plaintiff's overall medical record and not solely on objective medical evidence. (ECF No. 19-1 at 5-6 (emphasis added).) Defendant points out that the overall medical record upon which the ALJ relied included limited and conservative medical treatment as well as objective medical evidence. (Id. at 6-8.) Although the ALJ's opinion is not a model of clarity on this point, the Court agrees with Defendant that the ALJ based his credibility determination on Plaintiff's overall medical record and not solely on objective medical evidence.

         The ALJ did certainly consider the objective medical evidence as a relevant factor when discrediting Plaintiff's statements concerning the intensity, persistence and limiting effects of his symptoms. “While subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor in determining the severity of the claimant's pain and its disabling effects.”[29] Therefore, the Court will turn to the issue of whether the ALJ erred by failing to offer “specific, clear and convincing reasons” for determining that the absence of objective, corroborating medical evidence undermines the credibility of Plaintiff's symptom testimony.[31]

         In the context of the ALJ's credibility analysis, the only symptom testimony of Plaintiff that the ALJ specifically referenced was his testimony that: (1) “he cannot work due to anxiety and being fearful, and also due to pain in his neck, back, feet and hands” (ECF No. 12-2 at 26); (2) “he has stress when in an enclosed room” and that he was feeling anxiousness at his hearing (id.); and (3) he has “severe and disabling pain from arthritis and problems with anxiety” (id. at 27).[32] Thus, the Court assumes for purposes of this analysis, that this is the testimony of Plaintiff the ALJ rejected as incredible.[33]

         The Court agrees with Plaintiff that the ALJ did not present clear and convincing reasons for basing his adverse credibility determination on objective medical evidence. As described below, the ALJ fails to adequately articulate the nexus between the statements of Plaintiff that the ALJ discredits and the objective medical evidence that purportedly undermines them. In addressing the credibility of Plaintiff's testimony, the ALJ recited selections from Plaintiff's medical record, beginning with a list of Plaintiff's visits to medical facilities in recent years:

Records indicate that the claimant sought treatment from Grossmont Hospital Emergency Department on October 11, October 29, November 1, and November 14, 2011, for chest pain and anxiety, having run out of medication. An EKG was normal and the claimant was treated with Ativan at each visit and discharged in good condition. On November 30, 2011, the claimant was seen for follow-up at Family Health Centers of San Diego. Lab testing was normal and he was referred for psychiatric evaluation for evaluation of anxiety. Blood pressure was normal. Records from Chase Avenue Family Health Center indicate regular lab tests and medication refills for anxiety medication throughout 2012 and 2013. In May 2012, the claimant reported that his therapy sessions went well, he was working on relaxation and breathing exercises, and he was walking daily. The claimant was seen at Sharp Grossmont Hospital Emergency Department on March 30, 2013 with complaints of increased anxiety and chest tightness. He stated he had started a new job and was under stress. The claimant was prescribed Ativan and discharged in stable condition. He was seen again on May 22, 2013, with the same complaint and request for prescription refill. An EKG was normal and chest x-ray was negative.

(Id. at 26. (citations omitted).)

         The ALJ then referenced the evaluations of two examining physicians, beginning with Plaintiff's psychiatric consultation with Dr. Jaga Nath Glassman. (Id.) The ALJ cited to Dr. Glassman's diagnosis stating that Plaintiff suffers from “anxiety disorder, not otherwise specified, dysthymic disorder, polysubstance abuse in long term remission, mixed personality disorder, borderline antisocial features, sleep apnea, ” and has a Global Assessment of Functioning (“GAF”) score of 60, indicating moderate symptoms. (Id.) Next, the ALJ cited to Dr. Frederick W. Close's evaluation of Plaintiff where he states that Plaintiff “could work at a medium exertional level, ” but has “some mild bilateral lumbar spasm and limited range of motion in both hips.” (Id. at 27.)

         After listing Plaintiff's visits to medical facilities and diagnoses from two examining physicians, the ALJ concluded that “the medical record, as highlighted above, casts doubt on the credibility of the claimant's allegations.” (ECF No. 12-2 at 27.) Nowhere did the ALJ connect the testimony he discredited with the medical evidence which undermined it, nor did he analyze that connection. Instead, the ALJ made a generalized and conclusory finding that Plaintiff's medical record undermines his credibility. The ALJ's credibility determination lacks findings sufficiently specific to permit this Court to conclude that the ALJ did not arbitrarily discredit claimant's testimony ...


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