Opinion
No. CV 99-2195-AJW
December 18, 2000
MEMORANDUM OF DECISION
Plaintiff filed this action seeking reversal of the decision the defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for disability insurance benefits. Both parties have moved for summary judgment.
Administrative Proceedings
Plaintiff applied for disability insurance benefits on March 6, 1995. [A.R. 87-91]. Plaintiff alleged disability due to neurologic syndrome and silicone breast implant related disorders. [A.R. 106] Plaintiff's application was denied initially and coon reconsideration. [A.R. 92-95, 98-101]. Plaintiff requested an administrative hearing, which was conducted on February 4, 1997, before Administrative Law Judge James D. Hughes (the "ALJ"). [A.R. 49]. Plaintiff was represented by attorney William Kuntz during the hearing and testified on her own behalf. [A.R. 51-52]On March 27, 1997, the ALJ issued a written decision denying plaintiff's application for benefits. [A.R. 19-33]. The ALJ found that plaintiff was status post bilateral knee surgery, but that plaintiff did not have an impairment or combination of impairments that met or equaled a listed impairment. [A.R. 32]. See 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ further found that plaintiff had the residual functional capacity ("RFC") to perform less than the full range of light work, and that there exists a significant number of jobs in the national economy that plaintiff could perform. [A.R. 32]. The ALJ therefore concluded that plaintiff was not disabled through the date of his decision. [A.R. 33]. The Appeals Council denied plaintiff's request for review. [A.R. 3-4]
Background
Plaintiff was born on February 28, 1943. [A.R. 87]. She obtained a high-school diploma through the GED program, and she has twenty-four years of past relevant work as a truck driver. [A.R. 20, 110]. Plaintiff has not engaged in substantial gainful activity since August 17, 1993. [A.R. 20, 87]
Plaintiff has been diagnosed with the following medical conditions: degenerative arthritis in both knees and in her cervical spine, severe peroneal neuropathy, nervous system disorders, degenerative disc disease, spondylosis of the cervical spine, irritable bowel syndrome, gastritis and myofascial pain. [A.R. 128, 137, 145, 146, 172, 179, 200, 236-237, 265-273]. Plaintiff underwent a bilateral mastectomy and reconstruction with breast implants in 1982, and reconstructive surgery to address upward displacement of her breast implants caused by breast scar contracture in 1987. [A.R. 243-290]. Plaintiff had arthroscopic surgery on both knees in 1990. [A.R. 20, 255-285]. Due to continued pain in her knees, antalgic gait, and use of a cane for ambulation [A.R. 261], plaintiff underwent arthroscopic surgery with valgus osteotomy on both knees in 1992. [A.R. 135-136, 255-261]
Plaintiff testified that she stopped working as a truck driver in approximately 1986 because she was worn out and suffering from sleep problems and fatigue. [A.R. 62]. Plaintiff also stated that she was having "a lot of trouble" walking due to pain, weakness, and swelling in her legs, and that she had undergone four surgeries on each knee. [A.R. 67-68]. Beginning in the late 1980s, prior to removal of her silicone breast implants, plaintiff had pain in the chest and breasts, a burning sensation in the arms and hands, and stomach pain. [A.R. 71]. She explained that she was "in a lot of pain. . . . I thought I was losing my mind. . . . I just didn't know what was going on. I just knew something was horribly wrong." [A.R. 71]. Following her physician's advice, plaintiff had the silicone implants removed, at which time it was discovered that the right implant had ruptured. [A.R. 72] Plaintiff also testified that in the early 1990s, she experienced arthritis pain in her hands, wrists, and elbows. [A.R. 77-78]. In addition to medication to lower her cholesterol and blood pressure, plaintiff was prescribed pain medication (Darvocet, Vicodin), a sleeping aid (Desyrel), arthritis medication, and medication for depression and anxiety (Prozac, Xanax). [A.R. 62-63, 340-342]
Plaintiff's Contentions
Plaintiff contends that the ALJ erred by ignoring medical evidence and by discrediting her testimony regarding her subjective complaints. [Plaintiff's Memorandum, p. 1]. Plaintiff also argues that the ALJ erred in finding that she had no medical impairments related to silicone poisoning. [Plaintiff's Memorandum, p. 2]
Standard of Review
The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or if it is based on the application of incorrect legal standards. Tackett v. Apfel, 180 F.3d 1094, 1397-1098 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720-721 (9th Cir. 1998). Substantial evidence is more than a mere scintilla but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Tackett, 180 F.3d at 1098. Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. at 401 (quoting Consolidated Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938)). The Court is required to review the record as a whole, and to consider evidence detracting from the decision as well as evidence supporting the decision. Verduzco v. Apfel 188 F.3d 1087, 1089 (9th Cir. 1999); Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)
Discussion
Plaintiff's subjective complaints
Pain or other symptoms of sufficient severity caused by "medically diagnosed `anatomical, physiological, or psychological abnormality' may provide the basis for determining that a claimant is disabled." Light v. Social Security Administration, 119 F.3d 789, 792 (9th Cir. 1997) (quoting 42 U.S.C. § 423(d)(5)(A), and citing Bunnell v. Sullivan, 947 F.2d 341, 344-45 (9th Cir. 1991) (en banc)). Once a claimant produces objective evidence of an underlying impairment that could reasonably be expected to produce the pain or other symptoms alleged, the ALJ may not reject a claimant's subjective complaints without making specific findings that are supported by the record. Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996); Bunnell, 947 F.2d at 345; see also 20 C.F.R. §§ 404.1529(a), 416.929(a) (explaining how pain and other symptoms are evaluated).
In Bunnell, the court addressed confusion regarding the standard for evaluating the credibility of subjective complaints and endorsed the standard set forth in Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986), Varney v. Secretary of Health and Human Services, 846 F.2d 581 583-584 (9th Cir. 1988) and Gamer v. Secretary of Health and Human Services, 815 F.2d 1275, 1279 (9th Cir. 1987). Bunnell, 949 P.2d at 345. The so-called "Cotton standard" requires the claimant to produce objective medical evidence of an underlying impairment that is reasonably likely to be the cause of the alleged pain. Once that evidence is produced, the adjudicator may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence fully corroborating the alleged severity of the pain. Bunnell, 949 F.2d at 343, 345 (citing Cotton, 799 F.2d at 1407) Rather, the adjudicator must "specifically make findings which support this conclusion. These findings, properly supported by the record, must be sufficiently specific to allow a reviewing court to conclude the adjudicator rejected the testimony on permissible grounds and did not arbitrarily discredit a claimant's testimony regarding pain." Bunnell, 949 F.2d at 345-46 (internal citation and quotation omitted) Some subsequent decisions have stated that, unless there is affirmative evidence that a claimant is malingering, the ALJ must articulate "clear and convincing" reasons for rejecting subjective complaints. See e.g., Morgan v. Commissioner of the Social Security Administration, 169 F.3d 595, 599 (9th Cir. 1999); Regennitter v. Commissioner of the Social Security Administration, 166 F.3d 1294, 1296 (9th Cir. 1999); Reddick, 157 F.3d at 722; Light, 119 F.3d at 792; Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) Smolen, 80 F.3d at 1284; Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995) Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Other decision state that the ALJ must make specific findings based on the record, but do not use the "clear and convincing" formula. See e.g., Meanel v. Apfel, 172 F.3d 1111, 1113-14 (9th Cir. 1999); Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998); Chavez v. Department of Health and Human Services, 103 F.3d 849, 853 (9th Cir. 1996); Byrnes v. Shalala 60 F.3d 639, 641-42 (9th Cir. 1995); Moncada, 60 F.3d at 524; Orteza v. Shalala, 50 F.3d 748, 749-50 (9th Cir. 1995) (per curiam) Flaten v. Secretary of Health and Human Services, 44 F.3d 1453, 1464 (9th Cir. 1995) The "clear and convincing" language appears to have been derived from Swenson v. Sullivan, 876 F.2d 683 (9th Cir. 1989), which states that "[t]he Secretary's reasons for rejecting excess symptom testimony must be clear and convincing if medical evidence establishes an objective basis for some degree of the symptom and no evidence affirmatively suggests that the claimant was malingering." Swenson, 876 F.2d at 687 (citing Gallant v, Heckler, 753 F.2d 1450, 1455 (9th Cir. 1984)). In Gallant however, the court did not hold, or even affirmatively state, that an ALJ is required to provide "clear and convincing" reasons for rejecting excess pain testimony whenever there is no evidence of malingering. Instead, the court merely observed that no witness had testified that the claimant was malingering, that "[n]o clear and convincing reasons were provided by the ALJ" for his rejection of the claimant's testimony, and that the evidence relied on by the ALJ for his credibility evaluation was "insubstantial." Gallant, 753 F.2d at 1455, 1456. Bunnell did not cite either Gallant or Swenson, and neither Bunnell nor the cases it did cite with approval (that is, Cotton, Varnev, and Gamer) use the "clear and convincing" formula. It thus appears that the "clear and convincing" standard is an unwarranted elaboration of the substantial evidence standard of review, and that it was not part of the Cotton test adopted in Bunnell, where the en banc court attempted to clarify the law. Any difference between the standards may be more apparent than real. There does not appear to be any principled distinction between the two standards as they have been applied. To the extent that there is or may be a conflict, however, Bunnell must control since it was an en banc decision. Accordingly, this Court will adhere to Bunnell's requirement that the ALJ make "specific findings" supported by the record to explain his credibility evaluation, rather than imposing the arguably more exacting "clear and convincing" requirement suggested by Morgan and its predecessors.
In evaluating subjective testimony, the ALJ must consider "all of the evidence presented," including the following factors: (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of pain and other symptoms; (3) precipitating and aggravating factors, such as movement, activity, and environmental conditions; (4) the type, dosage, effectiveness and adverse side effects of any pain medication; (5) treatment, other than medication, for relief of pain or other symptoms; (6) any other measures used by the claimant to relieve pain or other symptoms; and (7) other factors concerning the claimant's functional restrictions due to such symptoms. See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); see also Social Security Ruling ("SSR") 96-7p, 1996 WL 374186, at *3 (clarifying the Commissioner's policy regarding the evaluation of pain and other symptoms). The ALJ also may employ "ordinary techniques of credibility evaluation," considering such factors as (8) the claimant's reputation for truthfulness; (9) inconsistencies within the claimant's testimony, or between the claimant's testimony and the claimant's conduct; (10) a lack of candor by the claimant regarding matters other than the claimant's symptoms; (11) the claimant's work record; and (12) information from physicians, relatives, friends, or others concerning the nature, severity, and effect of the claimant's symptoms. See Light, 119 F.3d at 792; Fair v. Bowen, 885 F.2d 597, 604 n. 5 (9th Cir. 1989)
The ALJ stated that he found plaintiff credible, but that her subjective complaints were "not supported by a diagnosed impairment related to her silicone implants" on or before her date last insured, and therefore that "there was no objective medical evidence of the existence of a medically determinable impairment that could reasonably produce the claimant's pain." [A.R. 29, 30]. The ALJ, however, erred by focusing solely on whether plaintiff's subjective complaints were substantiated by objective evidence of "silicone poisoning." [A.R. 29]. The record includes objective findings and diagnoses indicating that plaintiff suffered from degenerative disease of the spine and joints, severe neuropathy in the lower left extremity, and problems with her breast implants prior to the expiration of her insured status. The ALJ failed to address the relationship between these conditions and plaintiff's allegations of pain. The diagnoses and findings in the record provide an objective medical basis for plaintiff's allegations regarding pain and other symptoms that satisfies the Cotton threshold. As a result, the ALJ was required to make specific findings, supported by the record, for his rejection of plaintiff's subjective complaints. Unfortunately, he did not do so.
Based on examination and x-ray findings, plaintiff was diagnosed with degenerative arthritis in both knees that required extensive surgical intervention, as well significant degenerative arthritis of the cervical spine and moderate degenerative disc disease. [See e.g., A.R. 135-136, 146, 167-170, 255-272, 281-282, 285]. Treatment notes indicate that plaintiff's neck symptoms were consistent with x-ray evidence of cervical spine disease. [A.R. 146] Degenerative arthritis is a chronic disorder characterized by degeneration of cartilage and adjacent bone that can cause joint pain and stiffness and that frequently affects the spine. In the neck or lower back this disorder can cause numbness, odd sensations, and pain and weakness in an arm or leg if the overgrowth of bone presses on nerves. Rarely, the blood vessels supplying the back of the brain are compressed, causing vision problems, a whirling vertigo sensation, nausea and vomiting. Sometimes, bony growths compress the esophagus, making swallowing difficult. The Merck Manual of Medical Information 244-246 (Home Ed. 1997)
Based on abnormal EMG and nerve conduction studies, plaintiff was diagnosed with severe peroneal neuropathy of the lower left extremity. [A.R. 137-143, 258]. Those tests and the diagnosis of peroneal neuropathy provide objective evidence of a condition that reasonably could produce symptoms such as leg pain and weakness. See, e.g., Michaels v. Apfel, 46 F. Supp.2d 126, 130 (D. Conn. 1999) (noting that a physician testified that peroneal neuropathy was one factor which explained an individual's allegations of pain) "Peroneal" refers to the fibula or to the outer side of the leg. Michaels, 46 F. Supp.2d at 130 n. 8 (citing Dorland's Illustrated Medical Dictionary, 1169 (25th ed. 1974)). "Neuropathy" refers to nerve damage or functional disturbances and/or pathological changes in the peripheral nervous system, which may result in pain, numbness, tingling, swelling, or flushing. Michaels, 46 F. Supp.2d at 130 n. 8 (citing The Merck Manual of Medical Information 336-37 (Home Ed. 1997)).
Plaintiff had a documented history of complications with her silicone breast implants. [See, e.g., A.R. 273-289, 322]. It is not disputed that those problems led plaintiff to accept her physician's advice to remove the silicone implants, and that one of the silicone implants was found to have ruptured and leaked. [A.R. 238, 322-331].
Medical expert's testimony
The medical expert testified that there are no objective tests that can prove or disprove the existence "silicone poisoning," and that the research to date has "failed to show a relationship" between silicone leakage and particular impairments. [A.R. 58]. The medical expert, however, admitted that she did not see any evidence in the file that would lead her to question the credibility of plaintiff's reported symptoms, or to conclude that plaintiff was malingering or exaggerating. [A.R. 58-59]. The medical expert explained that symptoms are subjective and people can have — you know they can have all these complaints and yet there, there may not be anything objectively to back it up. That's the problem." [A.R. 58-59]. The medical expert's testimony bolsters the conclusion that the absence of a definitive objective test for "silicone poisoning" does not necessarily mean that plaintiff's subjective complaints were not credible, or that she did not have the impairments she alleged. See Smolen, 80 F.3d at 1283-1284 (explaining that "once a claimant meets the Cotton test and there is no affirmative evidence suggesting she is malingering," the ALJ may not reject the claimant's testimony regarding the severity of her symptoms without making specific findings supported by the record)
Remand or award benefits
The choice whether to reverse and remand for further administrative proceedings, or to reverse and simply award benefits, is within the discretion of the Court. See Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000) (holding that the district court's decision whether to remand for further proceedings or payment of benefits is discretionary and is subject to review for abuse of discretion), cert. denied — U.S.--, 2000 WL 1205076 (December 4, 2000). Remand is appropriate where additional proceedings would remedy defects in the ALJ's decision, Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989), and where the Commissioner is in a better position to evaluate the evidence. Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). An award of benefits is appropriate where no useful purpose would be served by further administrative proceedings, see Gamble v. Chater, 68 F.3d 319, 322-323 (9th Cir. 1995), where the record has been fully developed, see Schneider v. Commissioner of the Social Security Administration, 223 F.3d 968, 976 (9th Cir. 2000); Ramirez v. Heckler, 8 F.3d 1449, 1455 (9th Cir. 1993), or where remand would unnecessarily; delay the receipt of benefits. See Smolen, 80 F.3d at 1292.
There is objective evidence of impairments that reasonably could produce the pain and other symptoms that plaintiff alleged. Accordingly, remand is appropriate to enable the Commissioner properly to evaluate plaintiff's subjective complaints, and to make appropriate findings.
Conclusion
For the reasons stated above, plaintiff's motion for summary judgment is granted, defendant's motion for summary judgment is denied, and the case is remanded to defendant for further proceedings consistent with this opinion.
IT IS SO ORDERED.
JUDGMENT
IT IS HEREBY ADJUDGED that plaintiff's motion for summary judgment is granted, defendant's motion for summary judgment is denied, and the case is remanded to defendant for further proceedings consistent with the Memorandum of Decision filed concurrently herewith.