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Saul v. Acting Commissioner of Social Security Administration

United States District Court, D. Arizona

February 27, 2017

Daniel Frank Saul, Plaintiff,
v.
Acting Commissioner of the Social Security Administration, Defendant.

          ORDER

          Eileen S. Willett United States Magistrate Judge

         Pending before the Court is Daniel Frank Saul's (“Plaintiff”) appeal of the Social Security Administration's (“Social Security”) denial of his application for disability insurance benefits. The Court has jurisdiction to decide Plaintiff's appeal pursuant to 42 U.S.C. § 405(g). Under 42 U.S.C. § 405(g), the Court has the power to enter, based upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the case for a rehearing. Both parties have consented to the exercise of U.S. Magistrate Judge jurisdiction. (Doc. 14).

         The parties do not dispute that this case should be remanded to the Commissioner of Social Security as the Administrative Law Judge's (“ALJ”) decision contains harmful legal error. The parties, however, dispute whether the case should be remanded for further proceedings or for an immediate award of benefits. After reviewing the Administrative Record (“A.R”) and the parties' briefing (Docs. 23, 27, 28), the Court finds that it is appropriate to remand the case for an immediate award of benefits.

         I. DISCUSSION

         A. Procedural Background

         Plaintiff, who was born in 1965, has been employed as a floor layer, floor-covering salesperson, and salesperson for horticultural and nursery products. (A.R. 56, 65). In October 2012, Plaintiff filed an application for disability insurance benefits. (A.R. 65). Plaintiff's application alleged that on September 22, 2011, he became unable to work due to (i) spinal stenosis; (ii) degenerative joint disease; (iii) arthritis; (iv) cervical stenosis; (v) right leg injury; (vi) right hip injury; (vii) right ulnar nerve disability; (viii) hypertension; (ix) depression; (x) anxiety; and (xi) thyroid disease. (Id.). Social Security denied the applications on February 6, 2013. (A.R. 100-07). In August 2013, upon Plaintiff's request for reconsideration, Social Security affirmed the denial of benefits. (A.R. 108-10, 111). Plaintiff sought further review by an ALJ, who conducted a hearing in June 2013. (A.R. 32-63, 112-13).

         In his June 10, 2014 decision, the ALJ found that Plaintiff is not disabled within the meaning of the Social Security Act. (A.R. 9-31). The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Social Security Commissioner. (A.R. 1-6, 7-8). On November 21, 2015, Plaintiff filed a Complaint (Doc. 1) pursuant to 42 U.S.C. § 405(g) requesting judicial review and reversal of the ALJ's decision.

         B. The ALJ's Decision Contains Harmful Legal Error

         In his Opening Brief (Doc. 23), Plaintiff contends that the ALJ (i) improperly rejected the opinion of Plaintiff's treating psychiatrist, Dr. S. Patel, and (ii) failed to provide specific, clear, and convincing reasons supported by substantial evidence when rejecting Plaintiff's symptom testimony. Although Defendant concedes that the ALJ's decision is not supported by substantial evidence, Defendant appears to dispute Plaintiff's contention that the ALJ improperly rejected Dr. Patel's opinion, asserting that “the ALJ's rejection of Dr. Patel's opinion is based on appropriate reasoning, and well-supported by the record.” (Doc. 27 at 7). The Court need not resolve the dispute, however, as the following discussion explains that the ALJ committed harmful error by failing to provide specific, clear, and convincing reasons supported by substantial evidence for discounting Plaintiff's symptom testimony.

         The parties do not dispute the ALJ's finding that Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms.” (A.R. 18). Where, as here, there is no affirmative evidence of malingering, the ALJ may reject the claimant's testimony regarding the severity of his pain “only if he makes specific findings stating clear and convincing reasons for doing so.” Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th Cir. 1996). Appropriate considerations for determining a claimant's credibility include:

(1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities.

Id. at 1284.

         In explaining why he found Plaintiff's testimony not credible, the ALJ stated that Plaintiff “has not generally received the type of medical treatment one would expect for a totally disabled individual” and that Plaintiff's treatment records “reveal the claimant received routine, conservative and non-emergency treatment.” (A.R. 18). Yet the record shows that Plaintiff has received several surgeries, including a 2012 cervical fusion, and has regularly been prescribed narcotic pain medication. (See, e.g., A.R. 518, 924, 931-32, 935, 939, 1056). The ALJ's finding that Plaintiff has received routine, conservative treatment is not supported by substantial evidence in the record. See Lapeirre-Gutt v. Astrue, 382 F. App'x 662, 664 (9th Cir. 2010) (reversing ALJ's adverse credibility finding as unsupported by substantial evidence based on plaintiff's history of cervical fusion surgery in an attempt to relieve her pain symptoms followed by narcotic pain medications, occipital nerve blocks, and trigger point injections); Tunstell v. Astrue, No. CV 11-9462-SP, 2012 WL 3765139, at *4 (C.D. Cal. Aug. 30, 2012) (rejecting the ALJ's finding that plaintiff received only conservative treatment where the plaintiff was using narcotic pain medication as prescribed and was found to be a candidate for neurosurgical intervention); Oldham v. Astrue, No. CV 09-1431-JEM, 2010 WL 2850770, at *9 (C.D. Cal. July 19, 2010) (noting that epidural steroid injections are “performed in operation like settings” and not a form of conservative treatment). Further, a claimant's own testimony of disabling pain cannot be discredited “merely because [it is] unsupported by objective evidence.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996).

         In explaining why he found Plaintiff's testimony not credible, the ALJ cited evidence regarding Plaintiff's daily activities. The ALJ found that Plaintiff “has engaged in a somewhat normal level of daily activity and interaction, ” stating that “claimant admitted activities of daily living including he lives with family, and goes shopping with his daughter.” (A.R. 17). The ALJ stated that “[i]n function reports [Plaintiff] acknowledged he maintains his area, does light cleaning chores, feeds and walks pets, goes out daily, goes out alone, uses public transportation, walks, shops in stores biweekly, can handle his finances, watches television, socializes . . . .” (Id.). However, Plaintiff's function reports state that (i) Plaintiff's sister assists Plaintiff in caring for his dog; (ii) pain makes it difficult for Plaintiff to complete daily activities; and (iii) Plaintiff is “heavily medicated thru out [sic] the day.” (A.R. 216-23, 251-59). Moreover, a claimant “need not be completely bedridden or unable to perform any household chores to be considered disabled.” Easter v. Bowen, 867 F.2d 1128, 1130 (8th Cir. 1988) (citing Yawitz v. Weinberger, 498 ...


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