Carla Colamonico v. Jo Anne B Barnhart

Case 2:05-cv-01654-MAN Document 17 Filed 08/14/06 Page 1 of 9 Page ID #:43 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALI...

0 Downloads 14 Views
Case 2:05-cv-01654-MAN Document 17 Filed 08/14/06 Page 1 of 9 Page ID #:43

1 2 3 4 5 6 7 8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10 11 12 13 14 15 16

CARLA COLAMONICO,

) ) Plaintiff, ) v. ) ) ) JO ANNE B. BARNHART, ) Commissioner of the ) Social Security Administration, ) ) Defendant. ) ___________________________________)

NO. CV 05-01654-MAN MEMORANDUM OPINION AND ORDER

17 18

Plaintiff Carla Colamonico filed a Complaint on March 8, 2005,

19

seeking review of the denial by the Social Security Commissioner

20

(“Commissioner”) of Plaintiff’s claim for Supplemental Security Income

21

benefits (“SSI”).

22

Proceed Before a United States Magistrate Judge,” pursuant to 28 U.S.C.

23

§ 636.

24

2005, in which: Plaintiff seeks an order reversing the Commissioner’s

25

decision and awarding benefits or, alternatively, remanding the case for

26

further

27

Commissioner’s decision be affirmed.

28

JS under submission without oral argument.

On April 5, 2005, the parties filed a “Consent to

The parties filed a Joint Stipulation (“JS”) on November 10,

appropriate

proceedings;

and

Defendant

requests

that

the

The Court has taken the parties’

Case 2:05-cv-01654-MAN Document 17 Filed 08/14/06 Page 2 of 9 Page ID #:44

SUMMARY OF ADMINISTRATIVE PROCEEDINGS

1 2

Plaintiff protectively filed her current application for SSI on

3

(Administrative Record (“A.R.”) 97-101.)1

4

January 25, 2002.

5

claims to have been disabled since December 6, 2001, due to several

6

impairments, including carpal tunnel syndrome, status post stroke,

7

Bell’s palsy, and wrist pain.

8

relevant work experience as a hairdresser/cosmetologist.

9

129.)

(A.R. 17, 128.)

Plaintiff

Plaintiff has past (A.R. 17,

10 11

The Commissioner denied Plaintiff’s claim for benefits initially

12

and upon reconsideration.

13

represented by counsel, appeared at a hearing before Administrative Law

14

Judge James A. Paisley (“ALJ”).

15

ALJ denied Plaintiff’s request for benefits.

16

22, 2005, the Appeals Council denied Plaintiff’s request for review of

17

the ALJ’s decision.

On December 17, 2003, Plaintiff, who was

(A.R. 24-54.)

On January 20, 2004, the (A.R. 14-22.)

On January

(A.R. 6-8.)

18 19

SUMMARY OF ADMINISTRATIVE DECISION

20 21

In his January 20, 2004 written decision, the ALJ found that

22

Plaintiff has not engaged in substantial gainful activity since her

23

alleged onset date.

24

impairments, consisting of bilateral carpal tunnel syndrome, status post

(A.R. 21.)

He found that Plaintiff has “severe”

25 26 27 28

1

Plaintiff previously filed an application for disability benefits, which was denied. (A.R. 55-56.) The Administrative Law Judge considering the present SSI application decided that the record should be reopened with respect to Plaintiff’s previous application. (A.R. 17.) 2

Case 2:05-cv-01654-MAN Document 17 Filed 08/14/06 Page 3 of 9 Page ID #:45

1

right carpal tunnel release, status post Bell’s palsy, and visual

2

disturbance, but that Plaintiff’s impairments do not meet or equal one

3

of the listed impairments in Appendix 1, Subpart P, Regulation No. 4.

4

(Id.)

5 6

The ALJ further found that Plaintiff’s complaints generally are not

7

credible.

(A.R. 21.)

The ALJ found that Plaintiff has the residual

8

functional capacity to perform a range of light work, with the following

9

limitations:

no lifting or carrying more than ten pounds frequently;

10

standing, walking, and sitting for no more than six hours total in an

11

eight-hour

12

standing; no extensive pushing or pulling with the bilateral upper

13

extremities; no more than occasionally climbing or gross and fine

14

manipulation; and no work requiring a full field of vision.

15

ALJ concluded that Plaintiff is unable to perform her past relevant work

16

as a hairdresser.

17

vocational expert, the ALJ found that there are a substantial number of

18

jobs in the national economy that Plaintiff can perform, such as

19

employment as a parking lot attendant. (A.R. 22.) Accordingly, the ALJ

20

found that Plaintiff is not “disabled” within the meaning of the Social

21

Security Act.

workday;

the

(Id.)

ability

to

alternate

between

sitting

(Id.)

and

The

However, based on the testimony of the

(Id.)

22 23

STANDARD OF REVIEW

24 25

This

Court

reviews

the

Commissioner’s

decision

to

determine

26

whether it is free from legal error and supported by substantial

27

evidence.

28

Commissioner’s decision must stand if it is supported by substantial

Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996).

3

The

Case 2:05-cv-01654-MAN Document 17 Filed 08/14/06 Page 4 of 9 Page ID #:46

1

evidence and applies the appropriate legal standards. Saelee v. Chater,

2

94 F.3d 520, 521 (9th Cir. 1996).

3

mere scintilla but less than a preponderance - it is such relevant

4

evidence that a reasonable mind might accept as adequate to support the

5

conclusion.”

Substantial evidence is “more than a

Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995).

6 7

Although this Court cannot substitute its discretion for that of

8

the Commissioner, this Court nonetheless must review the record as a

9

whole, “weighing both the evidence that supports and the evidence that

10

detracts from the [Commissioner’s] conclusion.” Desrosiers v. Secretary

11

of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also

12

Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).

13

responsible for determining credibility, resolving conflicts in medical

14

testimony, and for resolving ambiguities.”

15

1035, 1039 (9th Cir. 1995).

16

decision if it is supported by substantial evidence and free from legal

17

error, even when the record reasonably supports more than one rational

18

interpretation of the evidence.

19

Commissioner of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999);

20

Flaten v. Secretary of Health & Human Servs., 44 F.3d 1453, 1457 (9th

21

Cir. 1995).

“The ALJ is

Andrews v. Shalala, 53 F.3d

This Court must uphold the Commissioner’s

Id. at 1039-40; see also Morgan v.

22 DISCUSSION

23 24

Plaintiff alleges one disputed issue: she contends that the ALJ

25 26

failed to properly consider her subjective symptom testimony.

27

4.)

28 4

(JS at

Case 2:05-cv-01654-MAN Document 17 Filed 08/14/06 Page 5 of 9 Page ID #:47

1

A.

The ALJ Improperly Discounted Plaintiff’s Symptom Testimony.

2 3

Once a disability claimant produces objective medical evidence of

4

an underlying impairment that could reasonably be expected to cause some

5

level of pain of the type which the claimant alleges, the claimant’s

6

subjective complaints regarding the severity of her pain may not be

7

discredited based solely on a lack of objective medical evidence to

8

corroborate the extent of the alleged pain.

9

Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991); Fair v. Bowen, F.2d

597,

601

(9th

Cir.

1989).

Smolen, 80 F.3d at 1281-84;

10

885

This

rule

11

recognition that pain is an inherently subjective phenomenon, which

12

cannot be objectively verified or measured and varies significantly

13

among individuals.

14

suggests affirmatively that Plaintiff is malingering, the ALJ must

15

provide clear and convincing reasons for rejecting Plaintiff’s excess

16

pain or symptom testimony.

17

Cir. 1993).

Bunnell, 947 F.2d at 347.

is

based

on

the

Unless the evidence

Dodrill v. Shalala, 12 F.3d 915, 918 (9th

18 19

In discrediting Plaintiff’s subjective allegations, the ALJ stated:

20 21

In assessing credibility, other information is considered

22

in conjunction with the medical record (SSR 96-7p).

23

noteworthy that the claimant testified as to a wide variety of

24

activities

25

children to and from school, shopping, cleaning, cooking,

26

bathing and dressing herself, and performing household chores.

27

Such activities are inconsistent with disability, and are

28

consistent

of

daily

with

the

living,

including

ability

to 5

perform

driving

work

her

It is

minor

activities.

Case 2:05-cv-01654-MAN Document 17 Filed 08/14/06 Page 6 of 9 Page ID #:48

1

Therefore, based on the medical and other evidence, it is the

2

finding of the Administrative Law Judge that the claimant’s

3

allegations of complete inability to work are not credible.

4 5

(A.R. 20.)

6 7

Here, the ALJ failed to provide clear and convincing reasons for

8

dismissing Plaintiff’s subjective pain complaints.

First, Plaintiff’s

9

testimony regarding her activities of daily living suggested that they

10

are more limited than they have been portrayed by the ALJ.

11

v. Chater, 157 F.3d 715, 722-23 (9th Cir. 1998)(holding that the ALJ

12

improperly discounted a claimant’s subjective testimony when the ALJ

13

paraphrased

14

asserted she does household chores with the help of her daughters.

15

(A.R. 29, 39.)

16

“a little” cleaning, such as “mak[ing her] bed and maybe [cleaning] a

17

couple [of] dishes and stuff.”

18

daughters has been doing most of the cleaning in her home.

19

Plaintiff also stated that although she does the laundry, her children

20

help her fold the clothes.

the

record

inaccurately).

At

the

See Reddick

hearing,

Plaintiff

Specifically, Plaintiff testified that she can only do

(A.R. 29.)

She asserted that one of her ( Id.)

(Id.)

21 22

In addition, Plaintiff testified that she only drives for short

23

distances, as the drive to her children’s school is approximately three

24

blocks away from her home.

25

the pain in her back and hands prevents her from driving for long

26

distances, as does the loss of vision she suffered based on her stroke.

27

(A.R. 39.)

28

shops for 20 to 25 minutes and does her shopping with the help of her

(A.R. 30.)

In fact, Plaintiff alleged that

As for her grocery shopping, Plaintiff stated that she only

6

Case 2:05-cv-01654-MAN Document 17 Filed 08/14/06 Page 7 of 9 Page ID #:49

1

children.

2

the groceries for her.

3

Plaintiff’s testimony that she could “barely pick up a frying pan[,]”

4

and

5

everything.”

has

(A.R. 38-39.)

difficulty

Moreover, her ten-year-old daughter carries (A.R. 31.)

with

handling

Finally, the ALJ failed to note

and

fingering,

as

she

“drop[s]

(A.R. 31, 40.)

6 7

Given the limited nature of Plaintiff’s activities of daily living,

8

the ALJ has failed to show their inconsistency with her disability.

9

Reddick,

157

F.3d

at

722

(“Only

with

[c]laimant’s

if

the

of

were

would

these

inconsistent

11

activities

12

Furthermore, these activities do not consume a substantial part of

13

Plaintiff’s day, and thus are not reflective of Plaintiff’s ability to

14

sustain gainful employment. See Vertigan v. Halter, 260 F.3d 1044, 1050

15

(9th Cir. 2001)(stating that an ALJ may not discredit a claimant’s

16

allegations based on the inconsistency between her daily activities and

17

her disability, where the activities do not take a substantial part of

18

her day); cf. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)

19

(“[I]f a claimant engages in numerous daily activities involving skills

20

that could be transferred to the workplace, the ALJ may discredit the

21

claimant’s allegations upon making specific findings relating to those

22

activities.”).

23

to bath and dress herself, such activities do not support the ALJ’s

24

decision that Plaintiff can sustain work at the light exertional level.

25

See Fair, 885 F.2d at 603 (noting that a claimant is not required to be

26

“utterly incapacitated” in order to be disabled and that “many home

27

activities are not easily transferable to what may be the more grueling

28

environment of the workplace”).

any

bearing

on

limitations

activity

10

have

claimed

level

See

[c]laimant’s

credibility.”).

Though the ALJ correctly stated that Plaintiff is able

7

Case 2:05-cv-01654-MAN Document 17 Filed 08/14/06 Page 8 of 9 Page ID #:50

1 2

Accordingly, the ALJ has failed to provide clear and convincing reasons for discrediting Plaintiff’s subjective allegations.

3 4

B.

Remand Is Required.

5 6

The decision whether to remand for further proceedings or order an

7

immediate award of benefits is within the district court’s discretion.

8

Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000).

9

useful purpose would be served by further administrative proceedings, or

10

where the record has been fully developed, it is appropriate to exercise

11

this discretion to direct an immediate award of benefits.

12

(“the decision of whether to remand for further proceedings turns upon

13

the likely utility of such proceedings”).

14

outstanding issues that must be resolved before a determination of

15

disability can be made, and it is not clear from the record that the ALJ

16

would be required to find the claimant disabled if all the evidence were

17

properly evaluated, remand is appropriate.

Where no

Id. at 1179

However, where there are

Id.

18 19

Here, remand is the appropriate remedy to allow the ALJ the

20

opportunity to remedy the above-mentioned deficiencies and errors.

21

Dodrill, 12 F.3d at 917-18 (remand appropriate to allow ALJ to identify

22

specific facts in the record demonstrating that the claimant was in less

23

pain than she stated); McAllister v. Sullivan, 888 F.2d 599, 603 (9th

24

Cir. 1989)(remand appropriate to remedy defects in the record).

25

///

26

///

27

///

28

/// 8

See

Case 2:05-cv-01654-MAN Document 17 Filed 08/14/06 Page 9 of 9 Page ID #:51

1

CONCLUSION

2 3

Accordingly, for the reasons stated above, IT IS ORDERED that the

4

decision of the Commissioner is REVERSED, and this case is REMANDED for

5

further proceedings consistent with this Memorandum Opinion and Order.

6 7

IT IS FURTHER ORDERED that the Clerk of the Court shall serve

8

copies of this Memorandum Opinion and Order and the Judgment on counsel

9

for Plaintiff and for Defendant.

10 11

LET JUDGMENT BE ENTERED ACCORDINGLY.

12 13 14 15

DATED: August 14, 2006 /s/ MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE

16 17 18 19 20 21 22 23 24 25 26 27 28 9