United States District Court, C.D. California
JANICE D. H., [1] Plaintiff,
v.
ANDREW M. SAUL, Defendant.
MEMORANDUM OPINION AND ORDER
ROZELLA A. OLIVER, UNITED STATES MAGISTRATE JUDGE.
I.
INTRODUCTION
Plaintiff
Janice D. H. (“Plaintiff”) challenges the
Commissioner's denial of her application for a period of
disability, disability insurance benefits
(“DIB”), and supplemental security income
(“SSI”). For the reasons stated below, the
decision of the Commissioner is REVERSED, and the matter is
REMANDED.
II.
PROCEEDINGS BELOW
On
January 21, 2015, Plaintiff filed a Title II application for
DIB alleging disability beginning on December 5, 2014.
(Administrative Record (“AR”) 307-08.) One day
later, Plaintiff filed an application for SSI alleging
disability beginning on December 5, 2014. (AR 309-314.)
Plaintiff's claims were denied on June 2, 2015. (AR
143-47.) Plaintiff filed a request for reconsideration on
June 17, 2015, which was denied on August 14, 2015. (AR 147,
150.) On August 17, 2015, Plaintiff filed a written request
for hearing, and a hearing was held on July 18, 2017. (AR
62-76, 156.) Represented by counsel, Plaintiff appeared and
testified, along with an impartial vocational expert. (AR
62-76.) On August 16, 2017, the Administrative Law Judge
(“ALJ”) found that Plaintiff had not been under a
disability, pursuant to the Social Security Act,
[2]
from December 5, 2014 through August 16, 2017, the date of
the ALJ's decision. (AR 36-37.) The ALJ's decision
became the Commissioner's final decision when the Appeals
Council denied Plaintiff's request for review on July 18,
2018. (AR 1.) Plaintiff filed this action on September 14,
2018. (Dkt. No. 1.)
The ALJ
followed a five-step sequential evaluation process to assess
whether Plaintiff was disabled under the Social Security Act.
See Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir.
1995). At step one, the ALJ found that
Plaintiff had not engaged in substantial gainful activity
since December 5, 2014, the alleged onset date
(“AOD”). (AR 26.) At step two,
the ALJ found that Plaintiff had the following severe
impairments: multiple sclerosis; myoligamentous strain of the
cervical spine, lumbosacral spine, right shoulder, left
shoulder, and bilateral knees; depression; and anxiety. (AR
26-27.) At step three, the ALJ found that
Plaintiff “does not have an impairment or combination
of impairments that meets or medically equals the severity of
one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1.” (AR 27.)
Before
proceeding to step four, the ALJ found that Plaintiff had the
residual functional capacity (“RFC”) to:
[P]erform light work . . . except she can stand and/or walk
for 6 hours in an 8 hour workday; sit for 6 hours in an
8-hour workday; occasionally climb, balance, stoop, kneel,
crouch, crawl; occasionally reach[ ] in all directions with
her left arm; can understand and remember tasks; can sustain
concentration and persistence; can socially interact with the
general public, co-workers, and supervisors; and, can adapt
to workplace changes frequently enough to perform unskilled,
low stress jobs that require simple instructions.
(AR 29.) At step four, based on
Plaintiff's RFC and the vocational expert's
testimony, the ALJ found that Plaintiff was unable to perform
any past relevant work. (AR 35.) At step
five, the ALJ found that “there are jobs that
exist in significant numbers in the national economy that the
claimant can perform.” (Id.) Accordingly, the
ALJ determined that Plaintiff had not been under a disability
from the AOD through the date of decision. (AR 35-37.)
III.
STANDARD OF REVIEW
Under
42 U.S.C. § 405(g), a district court may review the
Commissioner's decision to deny benefits. A court must
affirm an ALJ's findings of fact if they are supported by
substantial evidence and if the proper legal standards were
applied. Mayes v. Massanari, 276 F.3d 453, 458-59
(9th Cir. 2001). “‘Substantial evidence'
means more than a mere scintilla, but less than a
preponderance; it is such relevant evidence as a reasonable
person might accept as adequate to support a
conclusion.” Lingenfelter v. Astrue, 504 F.3d
1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. Sec.
Admin., 466 F.3d 880, 882 (9th Cir. 2006)). An ALJ can
satisfy the substantial evidence requirement “by
setting out a detailed and thorough summary of the facts and
conflicting clinical evidence, stating his interpretation
thereof, and making findings.” Reddick v.
Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation
omitted).
“[T]he
Commissioner's decision cannot be affirmed simply by
isolating a specific quantum of supporting evidence. Rather,
a court must consider the record as a whole, weighing both
evidence that supports and evidence that detracts from the
Secretary's conclusion.” Aukland v.
Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001)
(citations and internal quotation marks omitted).
“‘Where evidence is susceptible to more than one
rational interpretation,' the ALJ's decision should
be upheld.” Ryan v. Comm'r of Soc. Sec.,
528 F.3d 1194, 1198 (9th Cir. 2008) (citing Burch v.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)); see
Robbins, 466 F.3d at 882 (“If the evidence can
support either affirming or reversing the ALJ's
conclusion, we may not substitute our judgment for that of
the ALJ.”). The Court may review only “the
reasons provided by the ALJ in the disability determination
and may not affirm the ALJ on a ground upon which he did not
rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th
Cir. 2007) (citing Connett v. Barnhart, 340 F.3d
871, 874 (9th Cir. 2003)).
IV.
DISCUSSION
Plaintiff
raises the following issues for review: (1) whether new and
material evidence submitted to the Appeals Council renders
the ALJ's decision no longer supported by substantial
evidence; and (2) whether the ALJ properly evaluated
Plaintiff's subjective complaints. (See
Plaintiff's Memorandum in Support of the Complaint
(“Pl's Mem.”) 5, 8.) For the reasons below,
the Court reverses and remands.
A.
The ALJ Properly Evaluated Plaintiff's Subjective
Complaints[3]
Plaintiff
argues that the ALJ failed to properly consider
Plaintiff's subjective testimony. (Pl's Mem. 8-10;
Plaintiff's Reply (“Pl's Reply”) 3-4.)
The Commissioner disagrees. (Defendant's Memorandum in
Support of Defendant's Answer (“Def's
Mem.”) 4-11.)
1.
Plaintiff's Administrative Hearing Testimony
Plaintiff
testified that she has a tenth-grade education. (AR 65.) She
is living with her daughter. (AR 72.) She receives 74 hours
per month of in-home support services. (AR 73.) The in-home
support care provider helps Plaintiff with bathing, combing
hair, doing laundry, and going to the market. (AR 72-73.)
Plaintiff does not go to the market. (Id.) Plaintiff
will wash dishes “once in a while” but will take
a break if there are too many dishes. (AR 72.) She watches
television. (Id.) Plaintiff also attends her
doctors' appointments. (Id.)
Plaintiff
testified that she cannot sit, stand, or walk for long
periods of time and has limited use of her arms. (AR 66.)
Plaintiff was prescribed a walker and has been using the
walker for the past two years. (Id.) She attended
the hearing with the walker. (Id.)
Plaintiff
suffers from pain in her mid and lower back. (AR 67.) On a
good day, Plaintiff would be able to sit in a chair for 10 or
15 minutes before having to get up. (AR 67, 71.) Similarly, a
good day would mean that Plaintiff is able to walk without
her walker for 15 to 20 minutes. (Id.) She would
only be able to stand for 15 to 20 minutes without her
walker. (Id.) Plaintiff testified that she would be
unable to stand or walk for longer periods of time with the
use of the walker. (Id.)
Plaintiff
testified that she has back pain which causes pain to shoot
down her right leg. (AR 67.) Her right leg “stays
swollen as well.” (Id.) Plaintiff is unable to
balance on either foot. (Id.) She cannot use stairs
or ladders. (AR 68.) She is not able to kneel and stand back
up. (Id.) Plaintiff also has pain in her left leg.
(AR 70.) She cannot use her feet to step on controls like
pedals or clutches without being in severe pain.
(Id.)
As to
her arms, Plaintiff testified that she cannot reach over her
head with her left arm, but she is able to reach forward with
her left arm. (AR 68.) Plaintiff can lift a total of four
pounds using both arms. (AR 69.) Plaintiff was prescribed
Norco to help manage her pain. (AR 72.) In addition,
Plaintiff was referred to physical therapy on three
occasions. (Id.)
Plaintiff
also uses a heat pad for pain relief. (Id.)
Plaintiff also suffers from anxiety and depression. (AR 69.)
Plaintiff testified that she has “crying spells,
” where she just cries because she feels useless.
(Id.) The crying spells can last two seconds, or
they can last all day. (Id.) She has medication that
she takes for body pain and mental health, however, the
medication has side effects of drowsiness, dizziness, and
diarrhea. (AR 70.)
2.
Plaintiff's Function Report
Plaintiff
submitted a Function Report in February 2015. (AR 385-93.)
Plaintiff explained that she cannot sit up for longer than 10
minutes without experiencing pain or discomfort. (AR 385.)
Plaintiff experiences high blood pressure when she stands up,
causing her head to hurt. (Id.) She is unable to
lift her arm. (Id.) Plaintiff also noted that her
“legs give out” causing her to fall.
(Id.) Lastly, Plaintiff states that she has cancer
which causes her to be tired and makes it difficult for her
to breathe when she is walking. (Id.)
On the
days that Plaintiff is able to get out of bed, she cooks,
goes to the store, cleans, and showers. (AR 386.) Plaintiff
can feed herself. (Id.) On the days that she can
cook she will make sandwiches, complete meals, or will heat
up a frozen dinner. (AR 387.) Plaintiff sometimes experiences
difficulty lifting her leg to put on pants, lifting her arms
to comb her hair, and getting in and out of the bathtub. (AR
386.) She sometimes needs help to sit on the toilet.
(Id.) Plaintiff needs either a timer or someone to
remind her to take her medication. (AR 387.) Plaintiff
provides care for her daughter. (AR 386.) She takes her to
school, does her laundry, and cooks for her. (Id.)
Plaintiff states that she is always in some type of pain. (AR
392.)
If
Plaintiff wakes up and is not in pain, she will complete all
household chores or will try to complete as much as possible
before the pain makes her sit down. (AR 387.) It takes her
approximately six hours to complete but she finds that she
needs help or encouragement to complete. (Id.)
Plaintiff explains that if she is unable to do housework it
is because the work strains her back. (AR 388.)
Plaintiff
goes outside about once a week. (AR 388.) She drives.
(Id.) However, Plaintiff does not go out alone
because she fears that she will fall or that her legs will
“go out on” her. (Id.) Plaintiff goes
shopping for food three times a month. (Id.) Each
trip takes two hours. (Id.) She can pay bills, count
change, handle a savings account, and use a checkbook or
money orders. (Id.) Plaintiff enjoys swimming,
reading, and playing video games. (AR 389.) She does these
activities twice a week. (Id.) However, if she is in
pain from sitting, she cannot play video games.
(Id.) She talks on the phone daily but does not go
anywhere. (Id.) She does not like other people
seeing that she is unable to walk. (AR 390.)
Plaintiff's
condition affects her ability to lift, squat, bend, stand,
reach, walk, sit, kneel, climb stairs, see, concentrate,
remember, understand, follow instruction, use hands, and get
along with others. (AR 390.) Plaintiff can walk a quarter of
a mile before needing to rest 10 minutes. (Id.) She
is unable to finish what she starts. (Id.) She can
follow written instructions very well but is unable to follow
verbal instructions because she gets confused. (Id.)
She does not get along well with authority figures and does
not handle changes in her routine or stress well. (AR 391.)
Plaintiff also has a fear of falling and a fear of dropping
dead at any moment. (Id.)
3.
Third Party Function Report
On
February 16, 2015, Plaintiff's friend, William Caldwell,
submitted a function report regarding Plaintiff's
abilities. (AR 357-65.) At that time, he had known Plaintiff
for five years and explained that they spent a lot of time
together. (AR 357.) He describes that Plaintiff is unable to
walk or sit up for long periods of time and that she spends
her days complaining about the pain. (AR 357-58.) Plaintiff
will also “half clean the kitchen.” (AR 358.)
Plaintiff takes care of her child. (Id.) Mr.
Caldwell states that prior to her illness, Plaintiff was able
to do “everything needed for daily living.”
(Id.) According to Mr. Caldwell, Plaintiff's
conditions affect her sleep because she “toss[es] and
turn[s] all night.” (Id.) He also states that
he helps Plaintiff to dress, helps her in and out of the tub,
and that she sometimes needs help onto and off the toilet
seat. (Id. ) He notes that Plaintiff does not need
to be reminded to take care of her personal needs, but that
he “constantly” has to tell Plaintiff to take her
medication. (AR 359.) She also needs to be reminded to go to
the doctor and needs someone to accompany her. (AR 361.)
Mr.
Caldwell explains that Plaintiff's cooking habits have
changed since the onset of her conditions but noted that she
still prepares meals daily. (AR 359.) It takes Plaintiff four
hours to prepare meals. (Id.) According to Mr.
Caldwell, Plaintiff does not do any household chores because
she is always in pain and cannot finish. (AR 359-60.)
Plaintiff needs encouragement and help to do household
chores. (AR 360.) He states that Plaintiff goes outside once
or twice per week, but she cannot go alone because “she
falls sometimes.” (Id.) Plaintiff can drive.
(Id.) She shops for food in stores four or five
times per month. (Id.) Plaintiff's ability to
handle money has not changed since her conditions began and
she can pay bills, count change, handle a savings account,
and use a checkbook. (AR 360-61.) Plaintiff plays video
games, but not often. (AR 361.) Plaintiff is in “bed
most of the time.” (Id.) Mr. Caldwell notes
that since Plaintiff started falling, she does not act the
same. (AR 364.) Plaintiff is “snappy.” (AR 363.)
Plaintiff complains about headaches and pain throughout her
body. (AR 364.)
As to
Plaintiff's social activities, Mr. Caldwell states that
Plaintiff uses Facebook every day. (AR 361.) Plaintiff has
problems getting along with others because she believes that
everyone is “out to get her.” (AR 362.) Mr.
Caldwell informs that there have been no changes to
Plaintiff's social activities since her conditions began.
(Id.) Plaintiff does not get along well with
authority figures. (AR 363.) She was terminated from her job
with Agency One Insurance because of problems getting along
with other people. (Id.) She does not trust ...