Case 5:13-cv-00282-JCG Document 13 Filed 11/12/13 Page 1 of 5 Page ID #:570
`
`
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`
`Case No. ED CV 13-0282 JCG
`
`MEMORANDUM OPINION AND
`ORDER
`
`)))))))))))))
`
`JANICE ELAINE MOSELEY,
`Plaintiff,
`
`v.
`CAROLYN W. COLVIN,
`ACTING COMMISSIONER OF
`SOCIAL SECURITY
`ADMINISTRATION,1/
`Defendant.
`___________________________
`
`Janice Elaine Moseley (“Plaintiff”) challenges the Social Security
`Commissioner’s (“Defendant”) decision denying her application for disability
`benefits. Specifically, Plaintiff contends that the Administrative Law Judge (“ALJ”)
`improperly rejected her credibility. (Joint Stip. at 12-16, 20-21.) The Court agrees
`with Plaintiff for the reasons discussed below.
`A.
`The ALJ Failed to Provide Clear and Convincing Reasons for Rejecting
`Plaintiff’s Credibility
`
` 1/ Carolyn W. Colvin is substituted as the proper defendant herein. See Fed. R.
`Civ. P. 25(d).
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`
`Case 5:13-cv-00282-JCG Document 13 Filed 11/12/13 Page 2 of 5 Page ID #:571
`
`An ALJ may reject a claimant’s credibility “only upon (1) finding evidence of
`malingering, or (2) expressing clear and convincing reasons for doing so.” Benton v.
`Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). “General findings are insufficient;
`rather, the ALJ must identify what testimony is not credible and what evidence
`undermines the claimant’s complaints.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir.
`1995).
`Here, the ALJ provided five reasons in support of her credibility
`determination. The Court discusses, and rejects, each in turn.
`First, the ALJ found that the severity of Plaintiff’s symptoms is “greater than
`expected in light of the medical evidence.” (Administrative Record (“AR”) at 16.)
`However, an ALJ “may not reject a claimant’s subjective complaints based solely on
`a lack of objective medical evidence to fully corroborate the alleged severity of
`pain.” Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991); Gamer v. Sec’y of
`Health & Human Servs., 815 F.2d 1275, 1279 (9th Cir. 1987); Summers v. Bowen,
`813 F.2d 241, 242 (9th Cir. 1987) (per curiam). Thus, as to this ground, the ALJ’s
`credibility determination is inadequate.
`Second the ALJ found that Plaintiff’s symptoms were “unusual [] and [] not
`typical for [her] impairments.” (AR at 62.) However, an “ALJ “must not succumb
`to the temptation to play doctor and make [her] own independent medical findings.”
`Banks v. Barnhart, 434 F.Supp.2d 800, 805 (C.D. Cal. 2006) (quoting Rohan v.
`Chater, 98 F.3d 966, 970 (7th Cir. 1996); see Penny v. Sullivan, 2 F.3d 953, 958 (9th
`Cir. 1993); Nelson v. Heckler, 712 F.2d 346, 348 (8th Cir. 1983) (per curiam) (“[T]o
`attempt to evaluate disability without personal examination of the individual and
`without evaluation of the disability as it relates to the particular person is medical
`sophistry at its best.”) (citation omitted)). As such, the ALJ’s unsupported medical
`conclusion is insufficient to reject Plaintiff’s credibility.
`Third, the ALJ found that Plaintiff made “contradictory statements.” (AR at
`63.) This reason is belied by the record. For instance, the ALJ noted that Plaintiff
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`2
`
`

`
`Case 5:13-cv-00282-JCG Document 13 Filed 11/12/13 Page 3 of 5 Page ID #:572
`
`testified that “her headaches lasted all day,” while her July 9, 2009 Headache
`Questionnaire indicates that “they lasted only an hour or two.” (Id. at 63, 157.)
`However, the ALJ misquoted Plaintiff’s testimony and misconstrued her Headache
`Questionnaire. See Reddick v. Chater, 157 F.3d 715, 723 (9th Cir. 1998) (finding
`error where ALJ’s “paraphrasing of record material [was] not entirely accurate
`regarding the content or tone of the record.”) Plaintiff did not testify that her
`headaches lasted all day, but rather, that she gets headaches “three times a day, three
`days a week.” (AR at 30.) Neither did Plaintiff state in her Headache Questionnaire
`that her headaches lasted only an hour or two. (See id. at 157.) Indeed, when asked
`“How long do your headaches last?” Plaintiff answered “almost all day sometime
`then sometime a couple of hours.” (Id.) Plaintiff was later asked “How long after
`your headache are you able to resume normal activities?” There, she replied “about
`1 to 2 hours.” (Id.) It appears as though the ALJ conflated the two questions. The
`Court, for its part, finds no inconsistency between Plaintiff’s answers and her
`testimony at the hearing.
`Next, the ALJ noted that Plaintiff “claimed she had carpal tunnel syndrome,
`however, the records reveal no finding of carpal tunnel. (Id. at 63.) While
`testifying, Plaintiff stated the she had been diagnosed with carpal tunnel “A while
`back, a while back, a while back.” Here, Plaintiff’s medical records date back only
`as far as two and a half years. (See AR at 188.) If Plaintiff was diagnosed with
`carpal tunnel syndrome prior thereto, her statements were not necessarily
`inconsistent. Further, that Plaintiff would not have included the older record seems
`reasonable under the circumstances, as it would have been redundant. Plaintiff
`submitted evidence of another impairment, medical epicondylitis, that causes the
`same symptoms as carpal tunnel. (See AR at 263, 271, 273, 280, 287.) Thus, as to
`this ground, the ALJ’s credibility determination was erroneous.
`Fourth, the ALJ found that Plaintiff’s daily activities “could not be objectively
`verified.” (AR at 63.) However, the ALJ’s “standard imposes an extremely heavy,
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`3
`
`

`
`Case 5:13-cv-00282-JCG Document 13 Filed 11/12/13 Page 4 of 5 Page ID #:573
`
`and unwarranted burden on Plaintiff.” Bernal v. Astrue, 2011 WL 1790052, at *6
`(C.D. Cal. May 9, 2011) (citations omitted); see also Haller v. Astrue, 2008 WL
`4291448, at *5 (E.D. Cal. Sept. 18, 2008) (rejecting ALJ’s credibility determination
`based on his finding that claimant’s “limited daily activities . . . could not be
`objectively verified with any reasonable degree of certainty.”) (citations omitted).
`Social Security regulations make clear that a claimant’s statements about daily
`activities will be evaluated in relation to the objective medical record. See 20 C.F.R.
`§ 404.1529(c)(4) (amended in other sections). “The ALJ cites no authority
`suggesting that a claimant is required to offer objective verification, to a reasonable
`degree of certainty, regarding his activities of daily living.” Haller, 2008 WL
`4291448, at *5; see also Lester, 81 F.3d at 834 (“General findings are insufficient;
`rather, the ALJ must identify what testimony is not credible and what evidence
`undermines the claimant’s complaints.”). As to this ground, the ALJ improperly
`rejected Plaintiff’s credibility by imposing a heightened standard.
`Fifth, the ALJ found that “Plaintiff provided very brief responses to direct
`questions.” The Court disagrees. After reviewing the hearing transcript, the Court
`finds that Plaintiff’s answers were responsive, respectful, and of reasonable length.
`(See AR at 42.) Therefore, the ALJ’s credibility finding is insufficient.
`Remand is Warranted
`B.
`With error established, this Court has discretion to remand or reverse and
`award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). 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. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004).
`But where there are outstanding issues that must be resolved before a determination
`can be made, or it is not clear from the record that the ALJ would be required to find
`plaintiff disabled if all the evidence were properly evaluated, remand is appropriate.
`See id. at 594.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`4
`
`

`
`Case 5:13-cv-00282-JCG Document 13 Filed 11/12/13 Page 5 of 5 Page ID #:574
`
`Here, there are outstanding issues which must be resolved before a final
`determination can be made. On remand, the ALJ shall reconsider Plaintiff’s
`subjective complaints and the resulting functional limitations, and either credit
`Plaintiff’s testimony or provide clear and convincing reasons supported by
`substantial evidence for rejecting them. He shall also resolve all ambiguity in the
`record.
`Based on the foregoing, IT IS ORDERED THAT judgment shall be entered
`REVERSING the decision of the Commissioner denying benefits and
`REMANDING the matter for further administrative action consistent with this
`decision.1/
`
`Dated: November 12, 2013
`
`____________________________________
` Hon. Jay C. Gandhi
` United States Magistrate Judge
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`5