Donald Gardner v. Michael J Astrue, No. 2:2008cv02809 - Document 20 (C.D. Cal. 2009)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Stephen J. Hillman For the foregoing reasons, the decision of the Commissioner is reversed, and thematter is remanded for further proceedings in accordance with the decision, pursuant toSentence 4 of 42 U.S.C. § 405(g). by Magistrate Judge Stephen J. Hillman (sbu)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION 10 11 12 13 14 DONALD GARDNER, Plaintiff, v. MICHAEL J. ASTRUE, 15 Commissioner of Social Security, 16 17 18 19 20 21 22 23 24 Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No. CV 08-2809 (SH) MEMORANDUM DECISION AND ORDER This matter is before the Court for review of the Decision by the Commissioner of Social Security denying plaintiff s application for Disability Insurance Benefits under Title II of the Social Security Act. Pursuant to 28 U.S.C. § 636(c), the parties have consented that the case may be handled by the undersigned. The action arises under 42 U.S.C. § 405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The plaintiff and the defendant have 25 filed their pleadings, the defendant has filed the certified transcript of record, and the 26 parties have filed a joint stipulation. After reviewing the matter, the Court concludes that 27 the decision of the Commissioner should be reversed and remanded. 28 1 1 On June 8, 2005, plaintiff Donald Gardner filed an application for a period of 2 disability or Disability Insurance Benefits, alleging an inability to work since March 30, 3 2002, due to asthma and pain in his feet caused by Ainhum disease.1 (See Administrative 4 Record [ AR ] 60-62, 83-90). On June 15, 2007, subsequent to a hearing, an 5 Administrative Law Judge ( ALJ ), who found that plaintiff had severe impairments 6 (asthma, Ainhum disease), determined that plaintiff was not disabled within the meaning 7 of the Social Security Act. (AR 16-25). 8 Following the Appeals Council s denial of plaintiff s request for a review of the 9 10 hearing decision (AR 5-7), plaintiff filed an action in this Court. Plaintiff makes four challenges to the ALJ s 2007 Decision denying benefits. 11 12 Plaintiff alleges that the ALJ erred in (1) failing to properly consider the medical 13 evidence; (2) failing to properly evaluate plaintiff s credibility; (3) failing to properly 14 consider lay witness testimony; and (4) failing to pose a complete hypothetical question 15 to the vocational expert. 16 17 18 For the reasons discussed below, the Court finds that plaintiff s second claim of error does have merit. Since the matter is remanded based on plaintiff s second claim of error, the Court will not address plaintiff s first, third and fourth claims of error. 19 20 21 22 23 ISSUE NO. 2: Plaintiff asserts that the ALJ improperly found that plaintiff s statements concerning the intensity, persistence and limiting effects of these symptoms are not 24 entirely credible (AR 23). Plaintiff alleges that the ALJ failed to state which of 25 plaintiff s statements were not credible and why such statements were not credible. 26 Plaintiff further alleges that it appeared the ALJ failed to consider all of the evidence in 27 1 Ainhum is a condition occurring chiefly in dark28 skinned races in the tropics, in whichof unknown origin, of a toe, especially the fifth one, linear constriction leads to gradual spontaneous amputation. Dorland s Pocket Medical Dictionary, p. 22 (23rd ed. 1982); see also Administrative Record 116-44. 2 1 his determination about plaintiff s credibility. In response, defendant argues that the ALJ 2 provided specific, clear and convincing reasons for his credibility finding. 3 4 5 6 7 8 The Commissioner's assessment of plaintiff's credibility should be given great weight. Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). If the ALJ s decision is based on a credibility assessment, there must be an explicit finding as to whether the plaintiff's testimony was believed or disbelieved and the testimony must not be entirely discounted simply because there was a lack of objective findings. Cotton v. Bowen, 799 9 F.2d 1403, 1407 (9th Cir. 1986). Furthermore, if the Commissioner chooses to disregard 10 plaintiff's testimony, the Commissioner must set forth specific cogent reasons for 11 disbelieving it. Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981); Holohan v. 12 Massanari, 246 F.3d 1195 (9th Cir. 2001). Once the plaintiff produces objective medical 13 evidence of an underlying impairment, the ALJ may still reject the plaintiff's excess pain 14 testimony, but only by setting forth clear and convincing reasons for doing so. Light v. 15 Social Sec. Admin., 119 F.3d 780, 792 (9th Cir. 1997); Smolen v. Chater, 80 F.3d 1273, 16 1281 (9th Cir. 1996); see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). In 17 evaluating a claimant's credibility, the ALJ may consider the claimant's reputation for 18 truthfulness, inconsistencies within the claimant's testimony or as between his testimony 19 and conduct, the claimant's daily activities, work history, as well as testimony from 20 physicians or third parties concerning the nature, severity, and effect on the symptoms of 21 which the claimant complains. Light, supra; see also Reddick, supra (although disability 22 23 claimants should not be penalized for trying to lead normal lives despite their limitations, 24 when the level of their activities are inconsistent with their claimed limitations, those 25 activities have a bearing on the claimants' credibility). 26 At the administrative hearing, plaintiff testified that he has problems with his 27 asthma when he is exposed to dust or fumes. (See AR 416). Plaintiff further testified 28 that in 2003 or 2004 he had to have his left baby toe amputated after a couple of years of 3 1 severe pain,2 that he was developing bunions under that toe, that he was experiencing 2 pain with the next two left toes and the right three smallest toes, that he could stand or 3 4 5 6 7 8 walk for only about 30 minutes (and then he needed to get off his feet for a couple of hours), and that pain medication (Naprosyn and Vicodin) only provided temporary relief. (See AR 416-20). In his Decision, the ALJ found that plaintiff s asthma and Ainhum disease could reasonably be expected to produce the alleged symptoms[.] (AR 23). Nonetheless, the 9 ALJ found that the statements concerning the intensity, persistence and limiting effects 10 of these symptoms are not entirely credible. (Id.). 11 As plaintiff points out, it is not entirely clear on what bases the ALJ made the 12 determination about plaintiff s credibility as to his foot condition.3 13 The ALJ s credibility finding as to plaintiff s foot condition appeared to rely on the 14 following: (1) plaintiff s testimony at the hearing that [h]is pain sometimes improves 15 enough to the point that he only needs non-prescription pain relief (AR 23); (2) the 16 notation during the application interview that plaintiff had no difficulties moving about 17 (Id.); (3) the State Agency consultant s opinion that plaintiff did not have a need for a 18 cane (Id.); (4) the fact that plaintiff has shoe inserts to address his amputated toe, foot 19 pain and abnormal gait (Id.); (5) plaintiff s treating podiatrist s statements that plaintiff 20 has successfully healed from toe amputation and that his pain is controlled (Id.); and (6) 21 plaintiff s statements that he can lift 50 pounds, do his own grocery shopping, clean the 22 house, change the battery, wash his car and do yard work (Id.). 23 Contrary to the ALJ s statement, plaintiff did not testify that he sometimes takes 24 25 non-prescription pain medication. Rather, plaintiff testified that he takes Naprosyn for 26 2 27 The surgery was actually performed on May 6, 2004. (See AR 278, 294). 3 Since the Court ALJ s failure 28 clear and convincing reasonsis remanding the matter based onwith respect toto provide for finding plaintiff not credible his foot condition, the Court will not address the ALJ s credibility determination with respect to plaintiff s asthma condition. 4 1 mild pain and Vicodin for more severe pain. (AR 420). It was not clear that plaintiff was 2 taking Naprosyn as a non-prescription pain medication. There was no indication as to the 3 extent to which plaintiff suffered mild pain as opposed to severe pain. The fact that 4 plaintiff may have suffered only mild pain for an unknown time period simply does not 5 support the ALJ s credibility determination. 6 Although the ALJ correctly noted that the application interviewer did not observe 7 plaintiff having any difficulties with activities such as sitting, standing and walking (see 8 9 AR 23, citing AR 78), the ALJ failed to note that the interviewer observed that plaintiff 10 had a very slight limp. (See AR 78-79). That interview took place on June 8, 2005 11 (see AR 79), more than three years after plaintiff s alleged onset date. Moreover, there is 12 no indication that the interviewer observed plaintiff after plaintiff had been on his feet for 13 about 30 minutes (according to plaintiff, he can stand or walk for about 30 minutes before 14 he is limited by his foot problems, see AR 419). Thus, the interviewer s observations of 15 plaintiff did not provide a clear and convincing reason for the ALJ s rejection of 16 plaintiff s testimony. 17 The ALJ relied on a statement by a consultative examiner (who happened to be an 18 allergist and immunologist) in a July 13, 2005 evaluative report that plaintiff can walk 19 without any assistive devices. (AR 23, citing AR 145-47). However, the ALJ failed to 20 state why the absence of a cane (or any other assistive device) made plaintiff less 21 credible. Again, there is no indication that the consultative examiner observed plaintiff 22 after plaintiff had been on his feet for about 30 minutes. 23 With regard to the ALJ s reliance on the fact that plaintiff has shoe inserts to 24 25 address his amputated toe, foot pain and abnormal gait (AR 23, citing AR 234, 315, 31726 18), none of the medical records cited by the ALJ state that the shoe inserts successfully 27 reduced or eliminated plaintiff s pain. Indeed, plaintiff testified that he was not able to 28 wear a pair of shoes which were fitted to conform to his feet because of pain at the bottom of his feet. (AR 417). In addition, according to a January 24, 2007 progress note, 5 1 plaintiff was not able to wear shoes even after he had been given superfeet orthotics, 2 and plaintiff apparently required additional orthotics. (See AR 325-26). Thus, plaintiff s 3 4 5 6 7 8 testimony and the medical evidence contradict the ALJ s credibility finding. The ALJ improperly relied on plaintiff s treating podiatrist s December 7, 2005 report that states that plaintiff has healed successfully from the amputation of the fifth digit of the left foot and that plaintiff s pain is controlled with Lidoderm patches which numb the area and increases [sic] the circulation. (See AR 23, citing AR 295). The ALJ 9 failed to note that the same report contains statements -- namely, the 5th digits on both 10 feet were severely painful due to lack of circulation to the toes, and The toes will 11 eventually auto-amputate with time but due to the severity of the pain the patient opted 12 for amputation of the 5th digit of the left foot (AR 295) -- which support plaintiff s pain 13 testimony. Moreover, it is not clear what the podiatrist meant when he stated that 14 plaintiff s pain is controlled. The podiatrist s statements are somewhat suspect because 15 there is no indication that podiatrist treated plaintiff after late 2004 (at the time of the last 16 visit, it was noted that plaintiff had nerve pain in his left foot and continued to have pain 17 in his right fifth toe, and plaintiff apparently was given Liboderm patches, see AR 277). 18 Indeed, it appears that plaintiff sought treatment with another podiatrist beginning in July 19 2005. (See AR 227). Later treatment records, not addressed by the ALJ, indicate that 20 plaintiff experienced problems with pain in the toes of his left and right feet. (See AR 21 318, 343). 22 Finally, the ALJ improperly found that plaintiff s statements that he can lift 50 23 24 pounds, do his own grocery shopping, clean the house, change the battery, wash his car 25 and do yard work are inconsistent with complaints of disabling pain (AR 23, citing AR 26 92). In a questionnaire dated June 17, 2005, plaintiff stated that he was able to lift 50 27 pounds, clean the house, change the battery, wash his car, and do yard work. (AR 92). 28 However, plaintiff did not indicate (and there is no indication in the record about) how often he can lift 50 pounds. Moreover, the ALJ failed to consider several of plaintiff s 6 1 responses. When asked what kind of things he can carry, plaintiff stated Not much. 2 (Id.). Plaintiff stated that his ability to drive a car depends on pain from feet. (Id.) 3 4 5 6 7 8 Plaintiff stated that he could work on the car Not long and that he could do yard work for one hour. (Id.). Plaintiff stated that he had difficulty finishing his housework and other chores because of pain in feet. (AR 93). Plaintiff stated that he was required to take rest periods or naps during the day. (Id.; see also AR 420-21). The ALJ s reliance on selective statements about plaintiff s daily activities was an insufficient basis for 9 discrediting plaintiff. See Fair v. Bowen, 885 F.2d 597, 561 (9th Cir. 1989)( The Social 10 Security Act does not require that claimants be utter incapacitated to be eligible for 11 benefits . . . and many home activities are not easily transferable to what may be the more 12 grueling environment of the workplace, where it might be impossible to periodically rest 13 or take medication. ). 14 Accordingly, the ALJ did not provide clear and convincing reasons for the 15 determination about plaintiff s credibility determination with respect to his foot 16 condition. 17 18 19 20 21 22 23 24 ORDER For the foregoing reasons, the decision of the Commissioner is reversed, and the matter is remanded for further proceedings in accordance with the decision, pursuant to Sentence 4 of 42 U.S.C. § 405(g). DATED: July 31, 2009 /s/ STEPHEN J. HILLMAN UNITED STATES MAGISTRATE JUDGE 25 26 27 28 7
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