Terri L Runkle v. Michael J Astrue, No. 5:2007cv00571 - Document 17 (C.D. Cal. 2008)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. The Agency's decision is reversed and the case is remanded for further proceedings consistent with this Memorandum Opinion and Order. (READ ATTACHED ORDER FOR DETAILS) (esa)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 TERRI L. RUNKLE, Plaintiff, 11 12 13 14 15 v. MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 07-571-PJW MEMORANDUM OPINION AND ORDER 16 17 Plaintiff appeals a decision by Defendant Commissioner of the 18 Social Security Administration (hereinafter the Agency ), denying her 19 claim for disability insurance benefits. 20 administrative law judge ( ALJ ) erred when he found that she was not 21 credible and when he failed to include all of her limitations in his 22 hypothetical question to the vocational expert. 23 that the Appeals Council erred when it disregarded a letter from her 24 treating physician. 25 concludes that the ALJ erred in assessing Plaintiff s credibility. 26 Accordingly, the Agency s decision is REVERSED and the case is 27 REMANDED for further proceedings consistent with this opinion. 28 She claims that the She also contends For the reasons set forth below, the Court 1 Plaintiff contends that the ALJ selectively parsed the evidence 2 to support a finding that she was not credible, contrary to the 3 dictates of the law and the regulations governing social security 4 cases. 5 to follow doctors orders cut into her credibility. 6 reasons, the Court concludes that the ALJ erred. 7 She also takes exception to the ALJ s finding that her failure For the following An ALJ is tasked with judging the credibility of the claimant. 8 Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). 9 he is entitled to consider a host of factors, including ordinary In doing so, 10 credibility evaluation techniques, Bunnell v. Sullivan, 947 F.2d 341, 11 346 (9th Cir. 1991) (en banc), a claimant s daily activities, Burch v. 12 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005), and a claimant s failure 13 to follow a doctor s orders. 14 ALJ provides specific and legitimate reasons for discounting a 15 claimant s credibility that are backed by substantial evidence, the 16 ALJ s determination will be affirmed. Bunnell, 947 F.2d at 345-46. Where an Id. 17 The ALJ questioned Plaintiff s credibility because: 18 1. Plaintiff claimed that her impairments prevented her from 19 working as of November 19, 2003, but records showed that she 20 continued to work after that date; 21 2. 22 23 24 25 26 Plaintiff s daily activities were inconsistent with her claimed limitations; 3. Plaintiff did not comply with prescribed treatment for her medical conditions. (Administrative Record ( AR ) 18-19.) As to the ALJ s first reason, the Agency has conceded in this 27 appeal that Plaintiff did not work after her alleged onset date 28 (November 19, 2003). (Joint Stip. at 13 n.4.) 2 The income reported on 1 her earnings statements after that date is attributable to sick leave 2 and disability insurance. 3 support the ALJ s credibility finding. 4 (AR 65.) Thus, this reason does not The next justification supplied by the ALJ for discounting 5 Plaintiff s credibility was that her daily activities were 6 inconsistent with her claims of disabling limitations. 7 ALJ noted that Plaintiff engaged in a fairly active lifestyle, 8 driving, running errands, socializing, and performing all manner of 9 household chores. (AR 18.) (AR 18.) The The ALJ emphasized that Plaintiff 10 reported on one form that there was no physical chore she could not 11 do. 12 various questionnaires and reports regarding restrictions in her daily 13 activities conflicted with other responses, which suggested that she 14 was not so limited. (AR 18.) The ALJ also found that Plaintiff s statements in (AR 18.) 15 Plaintiff acknowledges that there are contradictions between some 16 of her statements regarding her ability to perform physical activities 17 and her claimed limitations. 18 statements were taken out of context and others, which indicated more 19 limited abilities, were ignored. 20 points out, for example, that the ALJ noted that she could perform all 21 kinds of chores but left out the fact that she also explained that, 22 after performing those chores, she was forced to sleep from 24 to 48 23 hours. 24 reliance on her statement that she liked to read, ignoring the fact 25 that in the same report she noted that she could only read one book a 26 month now, instead of two as she previously could. 27 8.) (Joint Stip. at 8.) But, she argues, some of these (Joint Stip. at 7-8.) Plaintiff Plaintiff also highlights the ALJ s 28 3 (Joint Stip. at 1 The ALJ is not allowed to selectively parse the evidence and rely 2 only on the evidence that supports his finding to arrive at a result. 3 See Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) ( Although 4 it is within the power of the Secretary to make findings concerning 5 the credibility of a witness and to weigh conflicting evidence, Rhodes 6 v. Schweiker, 660 F.2d 722, 724 (9th Cir. 1981), he cannot reach a 7 conclusion first, and then attempt to justify it by ignoring competent 8 evidence in the record that suggests an opposite result. (citing 9 Whitney v. Schweiker, 695 F.2d 784, 788 (7th Cir. 1982))). It appears 10 to the Court that that is what was done here. 11 on Plaintiff s claim that she could perform any chore, he never 12 mentioned Plaintiff s further claim that she had to rest for 24 to 48 13 hours after completing such chores. 14 that, although Plaintiff can concentrate on a book, her ability to 15 concentrate has fallen in half over the last several years. 16 remand, he should address not only Plaintiff s statements that support 17 his finding, but also those that undermine it and explain why he has 18 rejected those statements. 19 Though the ALJ relied Nor did he talk about the fact On The final reason provided by the ALJ for discounting Plaintiff s 20 credibility was that Plaintiff failed to comply with her doctor s 21 orders regarding her treatment. 22 according to the ALJ, by Plaintiff s failure to go on a low-fat, low- 23 sodium diet and to quit smoking. 24 this is not a valid reason for rejecting Plaintiff s credibility in 25 this case. 26 (AR 18.) (AR 18.) This was manifested, The Court concludes that Clearly, the ALJ can rely on a claimant s failure to follow a 27 prescribed course of treatment in evaluating her credibility, see 28 Bunnell, 947 F.2d at 345-46, but the ALJ s reliance on Plaintiff s 4 1 failure to follow the prescribed treatment in this case seems to raise 2 more questions than it answers. 3 the Court does not agree that it is a sign of her refusal to follow 4 doctor s orders. 5 smoking. 6 knows that it is an unhealthy habit that will likely kill them some 7 day, assuming that they do not die from some other cause first. 8 fact, for the last 50 years, cigarette companies have been required to 9 post a warning on every pack of cigarettes they sell in this country, As to Plaintiff s continued smoking, People do not need to be told by a doctor to quit It is fair to say that everyone in this country who smokes In 10 informing the consumer that cigarettes will kill them. 11 still smoke. 12 very difficult habit to break. 13 311 F.3d 966, 973 (9th Cir. 2002) (noting the hearing testimony of FDA 14 Commissioner David Kessler about the addictive properties of nicotine 15 and his observation that more than 15 million Americans try to quit 16 each year and fail ). 17 Plaintiff s failure to quit is an indication of her lack of 18 credibility. 19 2000) (finding claimant s failure to quit smoking is an unreliable 20 basis on which to rest a credibility determination ). 21 Yet, people The reason many do is because cigarette smoking is a See Soliman v. Philip Morris, Inc., The Court cannot conclude, therefore, that See Shramek v. Apfel, 226 F.3d 809, 812-13 (7th Cir. The Court looks at Plaintiff s failure to follow her doctor s 22 diet recommendation and to lose weight in a similar vein. 23 turn on a television or read a newspaper without being bombarded with 24 the dire warnings by medical professionals relating to the epidemic of 25 obesity in this country and the widespread, long-term health 26 consequences that are predicted as a result. 27 people do not need to be told by a doctor that being overweight is 28 unhealthy. Like smoking, most Yet, millions of Americans are overweight. 5 You cannot Plaintiff s 1 failure to comply with her doctor s orders to follow a healthy diet 2 and not gain weight is not enough for the Court to conclude that she 3 is not credible. 4 that the vast majority of overweight Americans are equally incredible, 5 at least those who have been told by their doctors to control their 6 weight by dieting and have failed to do so. 7 pointed out, Plaintiff not only failed to follow a prescribed diet and 8 lose weight she persisted in eating 75% of her meals in fast food 9 restaurants and gained 28 pounds in the process, the Court is still Were this enough, the Court would have to conclude Though, as the ALJ 10 not convinced that that is a sufficient reason to reject her 11 credibility. 12 Given that none of the reasons supplied by the ALJ justify 13 rejecting Plaintiff s credibility, the credibility finding is reversed 14 and the case is remanded for further consideration of this issue. 15 As a corollary to the credibility issue, Plaintiff complains that 16 the ALJ failed to include in the hypothetical question to the 17 vocational expert the fact that Plaintiff needs to sleep 24 to 48 18 hours after exerting herself. 19 limitation was based on Plaintiff s statements, which the ALJ 20 apparently did not believe. 21 take another look at this issue, too. 22 statement that she has to sleep for 24 to 48 hours after activity is 23 credible, he should include that limitation in the hypothetical. 24 he finds that this claim is not true, he need not include it. 25 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 26 (Joint Stip. at 14-15.) This On remand, the ALJ will be required to If he finds that Plaintiff s If See Finally, Plaintiff alleges that the Appeals Council erred when it 27 failed to consider a letter she submitted from her treating doctor. 28 (Joint Stip. at 3-5.) The Agency disagrees. 6 It argues that because 1 the evidence was neither new or material the Appeals Council was not 2 required to consider it. 3 reasons, the Court finds that the Appeals Council should have 4 considered the letter but that it would not have altered the outcome 5 of this case. 6 (Joint Stip. at 5-7.) For the following Thus, any error was harmless. In her application for benefits, Plaintiff alleged that she was 7 disabled due to chronic fatigue syndrome. 8 impairment, the ALJ found that it had been self-reported by 9 Plaintiff and noted that there were questions relating to the initial (AR 70.) In assessing this 10 diagnosis of the disease. 11 from the administrative hearing and the ALJ s decision suggests that 12 the ALJ questioned whether a doctor had initially diagnosed Plaintiff 13 with chronic fatigue syndrome and, if so, when. 14 Despite his concerns, the ALJ ultimately determined that Plaintiff 15 suffered from chronic fatigue syndrome, but concluded that it did not 16 preclude her from working. 17 (AR 19.) A fair reading of the transcript (AR 19, 291-93.) (AR 16-20.) Plaintiff appealed the ALJ s decision and included with her 18 appeal a 1998 letter from a treating doctor, Dr. Abatecola, stating 19 that Plaintiff had been his patient since 1994 and had reported to him 20 that, prior to 1994, she had been diagnosed with chronic fatigue 21 syndrome. 22 symptoms and how they impacted her ability to work. 23 Appeals Council disregarded the letter, which it referred to as a 24 report, stating: (AR 266.) Dr. Abatecola also set out some of Plaintiff s (AR 266.) The 25 We also looked at the medical report from Robert Abatecola, 26 M.D., dated July 14, 1998. 27 decided your case from your alleged onset date of disability 28 beginning November 19, 2003. The Administrative Law Judge This new information is about 7 1 an earlier time. 2 about whether you were disabled at the time of your alleged 3 onset date. 4 Therefore, it does not affect the decision (AR 5.) 5 Plaintiff argues that this evidence was relevant to the questions 6 raised by the ALJ regarding the initial diagnosis of chronic fatigue 7 syndrome and, therefore, should have been considered by the Appeals 8 Council. 9 Council was only required to consider evidence that was both new and (Joint Stip at 4-5.) The Agency contends that the Appeals 10 material and that it did not have to consider this evidence because it 11 was not new (i.e., it existed at the time the administrative hearing) 12 and was not material (i.e., it was in the form of a To Whom It May 13 Concern letter and merely conveyed that Plaintiff had reported to Dr. 14 Abatecola that she had been diagnosed with chronic fatigue syndrome 15 before coming to see him in 1994). 16 (Joint Stip. at 5-6.) The Court finds two flaws in the Agency s argument. First, the 17 Appeals Council found that the information was new. 18 information is about an earlier time ).) 19 that the information was not new. 20 F.3d 871, 874 (9th Cir. 2003) (holding it is error for the district 21 court to affirm an ALJ s decision for a reason not discussed by the 22 ALJ). 23 some light on Plaintiff s history of chronic fatigue syndrome. 24 spoke to the diagnosis and the longevity of the disease, something the 25 ALJ had questioned. 26 account. (AR 5 ( this new The Agency cannot argue now See, e.g., Connett v. Barnhart, 340 Second, Dr. Abatecola s letter was material in that it shed It The Appeals Council should have taken it into 27 Assuming it had, however, the Court is confident that Dr. 28 Abatecola s letter would not have altered the outcome of this case. 8 1 Thus, the error was harmless. See Stout v. Comm r. Soc. Security, 454 2 F.3d 1050, 1053 (9th Cir. 2006) (holding error is harmless if 3 inconsequential to disability finding). 4 questions about the onset date and the initial diagnosis of 5 Plaintiff s condition, he concluded that Plaintiff suffered from 6 chronic fatigue syndrome. 7 not have changed this finding. 8 Council to overrule the ALJ s finding that Plaintiff s chronic fatigue 9 syndrome did not preclude her from working. (AR 16-20.) Though the ALJ had some Dr. Abatecola s letter would Nor would it have caused the Appeals The letter reported that 10 Plaintiff s condition was first diagnosed before 1994. 11 had had the condition for about ten years when she alleges she became 12 disabled in 2003. 13 precluded Plaintiff from working was obviously contradicted by the 14 fact that Plaintiff had worked continuously, as much as 12 hours a 15 day, as an emergency medical technician from November 1985 to May 16 2003. 17 Plaintiff could not work was not persuasive in the least. 18 result, the Appeals Council s failure to consider it does not require 19 reversal. (AR 86.) Therefore, she Dr. Abatecola s 1998 opinion that this condition For this reason, Dr. Abatecola s opinion that 20 21 22 23 24 25 26 27 28 9 As a 1 For the reasons set forth above, the Agency s decision is 2 reversed and the case is remanded for further proceedings consistent 3 with this Memorandum Opinion and Order.1 4 IT IS SO ORDERED. 5 DATED: September 30 , 2008. 6 7 8 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 S:\PJW\Cases-Soc Sec\RUNKLE, 571\Memo_Opinion.wpd 26 27 28 1 The Court is aware that it has the authority to reverse and remand for an award of benefits but finds that this case does not warrant such relief. 10
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