Michael J Hrindak v. Michael J. Astrue, No. 5:2012cv01390 - Document 15 (C.D. Cal. 2013)
Court Description: MEMORANDUM DECISION by Magistrate Judge Stephen J. Hillman that the decision of the Commissioner is reversed and remanded for further proceedings, pursuant to Sentence 4 of 42 U.S.C. §405(g). (sbu)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION 10 11 MICHAEL J. HINDRAK, 12 Plaintiff, 13 vs. 14 MICAHEL J. ASTRUE, Commissioner of Social Security, 15 16 Defendant ) Case No. EDCV 12-1390SH ) ) MEMORANDUM DECISION AND ) ORDER ) ) ) ) ) 17 18 19 I. INTRODUCTION This matter is before the Court for review of the decision by the 20 Commissioner of Social Security denying plaintiff s applications for Disability 21 Insurance Benefits (DIB) and Supplemental Security Income under Titles II and 22 XVI, respectively, of the Social Security Act (Act). Pursuant to 28 U.S.C. § 636(c), 23 the parties have consented that the case may be handled by the undersigned. The 24 action arises under 42 U.S.C. § 405(g), which authorizes the Court to enter 25 judgment upon the pleadings and transcript of the record before the Commissioner. 26 Plaintiff and defendant have filed their pleadings (Defendant s Answer; Plaintiff s 27 Brief with Points and Authorities in Support of Plaintiff s Complaint; Defendant s 1 1 Brief in Opposition to Complaint), and defendant has filed the Certified 2 Administrative Record (AR). After review of the matter, the Court concludes that 3 the decision of the Commissioner should be reversed and remanded. 4 II. 5 BACKGROUND 6 On June 29, 2009, Plaintiff Michael J. Hrindak filed applications for DIB 7 and SSI, alleging disability beginning December 7, 2008. (AR 13, 112-16). On 8 October 13, 2009 plaintiff s applications were denied. (AR 55-59). On March 7, 9 2011 an Administrative Hearing was held before an Administrative Law Judge 10 (ALJ). Subsequently, the ALJ issued a decision denying both applications on May 11 6, 2011. Plaintiff s request for review by the Appeals Council was denied on June 12 23, 2011. On August 17, 2012, plaintiff filed this action for judicial review of the 13 Commissioner s decision. 14 Plaintiff makes three challenges to the ALJ s decisions denying him 15 disability benefits, alleging (1) the ALJ s finding that plaintiff could perform his 16 past relevant work was inconsistent with the definition of inside sales order clerk 17 as defined by the Dictionary of Occupational Titles (DOT); (2) the ALJ failed to 18 properly consider plaintiff s testimony and failed to make proper credibility 19 findings; and (3) the ALJ failed to properly consider the lay witness testimony of 20 plaintiff s sister, Petrea Agar. 21 Each of these contentions will be addressed in turn. 22 III. 23 24 25 DISCUSSION A. Standard of Review Under 42 U.S.C. § 405, this court reviews the Commissioner s decision to 26 determine if (1) the Commissioner s findings are supported by substantial 27 evidence; and (2) the Commissioner used proper legal standards. Delorme v. 2 1 Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means more 2 than a mere scintilla, Richardson v. Perales, 402 U.S. 389, 401; 91 S. Ct. 1420, 28 3 L. Ed. 2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 4 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)), but "less than a preponderance." 5 Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 6 1988). 7 8 9 B. ISSUE NO. 1: Whether the ALJ Properly Determined that Plaintiff Could Perform Past Relevant Work as an Inside Sales Order Clerk. 10 Plaintiff asserts that the ALJ improperly determined that he could perform 11 his past relevant work as an inside sales order clerk because he is precluded from 12 intense personal interactions, and the occupation of inside sales order clerk 13 requires intense personal interactions. In response, defendant asserts that the ALJ 14 properly determined that Plaintiff could perform past relevant work because the 15 occupation of inside sales clerk does not require intense personal interactions. 16 The ALJ determined that plaintiff had the following severe impairments: 17 lumbar strain, status post-surgery, depressive disorder-NOS, and psychological 18 reaction to physical condition. (AR 15). The ALJ also determined that plaintiff had 19 the Residual Functional Capacity (RFC) to perform light work as defined in 20 20 C.F.R. 404.1567(b) and 416.967(b) except for limitations as to lifting/carrying 10 21 pounds frequently and 20 pounds occasionally, standing/walking and sitting for 6 22 hours each in an 8 hour day, with normal breaks, occasional climbing stairs/ramps, 23 bending, stooping, kneeling, crouching and crawling, and preclusion from climbing 24 ladders/ropes/scaffolds, exposure to hazards, and from intense personal 25 interactions. (AR 16-17). The ALJ further determined that plaintiff was capable of 26 performing past relevant work as an inside sales clerk, and that the work does not 27 3 1 require performance of work-related activities which are precluded by plaintiff s 2 RFC. (AR 19). 3 In deciding whether a claimant can perform past relevant work, the ALJ 4 must determine whether the claimant can perform the functional demands of the 5 past relevant work as they were actually performed or generally performed 6 throughout the national economy. Lewis v. Barnhart, 281 F.3d 1081, 1093 (9th Cir. 7 2002); 20 C.F.R. § 404.1560(b). The ALJ must make a careful appraisal of: (1) the 8 individual s statements as to which past work requirements can no longer be met 9 and the reason(s) for his inability to meet those requirements; (2) medical evidence 10 establishing how the impairment limits the ability to meet the physical and mental 11 requirements of the work; and (3) in some cases, supplementary or corroborative 12 information from other sources such as employers and the DOT. S.S.R. No. 82-62. 13 The decision must be developed and fully explained. Id. 14 Here, the ALJ did not provide an explanation for finding that plaintiff could 15 perform past relevant work as actually or generally performed, and relied entirely 16 on the conclusion of the vocational expert, referencing only the testimony of the 17 vocational expert who stated that plaintiff could perform his past relevant work as 18 an order clerk. (AR 19). The ALJ did not provide a careful appraisal of plaintiff s 19 statements or treatment record, and did not elicit any testimony from plaintiff or 20 other witnesses with regard to the actual requirements of his past work. The ALJ 21 also did not make a specific finding as to why he could or could not perform those 22 requirements. The ALJ did not discuss any medical evidence that would indicate 23 whether plaintiff could or could not meet the mental and physical requirements of 24 an inside sales order clerk. Although the ALJ listed a few of the duties of an order 25 clerk, including answering phones, order entry, and checking inventory, as defined 26 in the DOT 249.362-026, the ALJ did not provide specific findings that indicated 27 4 1 whether those duties could be performed by plaintiff given his severe impairments, 2 limitations and RFC. (AR 19). 3 4 Since the ALJ s decision was not fully developed or explained, the ALJ s conclusion is not supported by substantial evidence. 5 6 7 8 C. ISSUE NO. 2: Whether the ALJ Properly Considered Plaintiff s Testimony and Made Proper Credibility Findings. Plaintiff contends that the ALJ failed to provide clear and convincing 9 reasons for rejecting Plaintiff s testimony. Defendant contends that where no 10 physician opined that Plaintiff suffered a disability, the ALJ reasonably found 11 Plaintiff s subjective complaints to be less than credible. 12 In determining that a claimant s testimony is not credible, the ALJ is 13 required to make a specific finding regarding the believability of the claimant and 14 whether the ALJ finds his description of his symptoms, such as pain, to be 15 credible. See Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990). An implicit 16 finding that claimant is not credible is insufficient. Id. Unless there is affirmative 17 evidence showing that the claimant is malingering, the ALJ s reasons for rejecting 18 the claimant s testimony must be clear and convincing. Valentine v. Comm r 19 SSA, 574 F.3d 685, 693 (9th Cir. 2009) (citing Morgan v. Comm'r of Soc. Sec. 20 Admin., 169 F.3d 595, 599 (9th Cir. 1999)). The ALJ must set forth specific 21 cogent reasons for disbelieving the claimant. Lewin v. Schweiker, 654 F.2d 631, 22 635 (9th Cir. 1981). An absence of such findings constitutes reversible error. 23 In determining whether a claimant is credible, the ALJ may consider the 24 nature of his or her daily activities, Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 25 1996). The claimant's daily activities, if rigorous enough to be a fair proxy for the 26 demands of work, can constitute a basis to find allegations of disability pain (or 27 other subjective symptoms) not credible. See Fair v. Bowen, 885 F. 2d 597, 603 5 1 (9th Cir. 1989); but see Vertigan v. Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001) 2 (holding that "the mere fact that a plaintiff has carried on certain daily activities 3 such as grocery shopping, driving a car, or limited walking for exercise, does not in 4 any way detract from her credibility as to her overall disability"). 5 Here, the ALJ made no determination that plaintiff was malingering but did 6 not provide clear and convincing reasons for finding plaintiff not credible. The 7 ALJ found that plaintiff s medically determinable impairments could reasonably 8 be expected to cause the alleged symptoms; however, [plaintiff s] statements 9 concerning the intensity, persistence and limiting effects of these symptoms are not 10 11 credible... (AR 18). Defendant asserts that the ALJ s determination of credibility properly relied 12 on statements from the medical expert, consultative orthopedic surgeon and 13 consultative psychiatrist who opined that plaintiff could work with some 14 limitations. (AR 37, 275-76, 281-82). However, the ALJ s decision did discuss the 15 consultative examiner, Dr. Moazzaz opinion that Plaintiff s thoracolumbar range of 16 motion was diminished. (AR 274-76). However, the ALJ also ignored the 17 treatment record which included a series of treatment notes from plaintiff s 18 chiropractor, Timothy R. Noble, D.C.; surgery and post-surgery treatment notes 19 from Kaiser Permanente; and medical records from St. Joseph Heritage Medical 20 Group, which chronicled plaintiff s treatment for lower back pain, depression and 21 general health. (AR 18, 329-48, 349-97, 398-427). 22 The ALJ considered plaintiff s daily activities of driving a Toyota Tundra 23 and cooking to be inconsistent with his allegation of disabling pain. However, the 24 ALJ failed to discuss how long plaintiff could engage in these activities and 25 whether they were transferable to a work setting. In the Functional Report, plaintiff 26 stated that he was unable to drive for long distances or sit for very long, his 27 cooking was limited to preparing frozen dinners, he spends only half an hour 6 1 shopping for groceries, and he cannot sit at the computer for very long. (AR 155- 2 58). Plaintiff s daily activities are not necessarily inconsistent with subjective 3 symptoms of pain that could prevent him from functioning in the workplace. 4 The ALJ also based her credibility finding on the determination that 5 plaintiff s treatment regimen was generally conservative, including the fact that his 6 medication was limited to over-the-counter Tylenol, and he did not receive 7 psychiatric treatment despite claiming to suffer mental breakdowns. However, the 8 ALJ did not discuss the treatment record which indicated that Plaintiff was 9 prescribed Paroxetine, an anti-depressant; Naproxen, an anti-inflammatory 10 medication to treat pain; and methocarbamol, a muscle relaxant. (AR 412). 11 Plaintiff also testified that in the past he was prescribed Vicodin and Norco (which 12 did not completely alleviate his pain), but discontinued using them for fear of 13 becoming addicted to pain killers. (AR 40). In addition, plaintiff testified that 14 doctors recommended that he use an inversion table, which he used at least every 15 day to manage his back pain. (AR 41). Also, plaintiff s treatment record from St. 16 Joseph Medical Group indicates he sought consistent and regular follow-up 17 treatment for depression. (AAR 398-427). 18 The ALJ did not provide clear and convincing reasons for ignoring the 19 treatment record or for finding that plaintiff s daily activities were inconsistent 20 with his disability allegations. The ALJ should have considered and discussed this 21 evidence in making her credibility determination. 22 23 24 25 D. ISSUE NO. 3: Whether the ALJ Properly Considered the Lay Witness Testimony Plaintiff contends that the ALJ did not properly consider the testimony of 26 Plaintiff s sister, Petrea Agar. In response, defendant asserts that any error in 27 failing to address Petrea Agar s testimony was harmless error. 7 1 The ALJ is required to consider the credibility of lay testimony provided by 2 family members who provide their own statement regarding a claimant s disabling 3 symptoms. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). If an ALJ rejects 4 lay witness testimony, the ALJ must provide specific reasons that are germane to 5 each witness whose testimony he rejects. Id. (citing Stout v. Comm r, Social Sec. 6 Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)). However, where an ALJ fails to 7 properly discuss lay witness testimony, the error may be considered harmless if the 8 court finds that, when fully crediting the testimony, no reasonable ALJ could have 9 reached a different conclusion. Stout, 454 F.3d at 1056. If the ALJ provided clear 10 and convincing reasons for rejecting the claimant s subjective complaints, and the 11 lay witness testimony was similar to such complaints, it follows that the ALJ gave 12 germane reasons for rejecting the lay witness testimony. Valentine v. Comm r, 574 13 F.3d 685, 695 (9th Cir. 2009). 14 The Ninth Circuit, however, has never concluded that an ALJ s complete 15 silence and disregard of lay testimony was harmless error. See Stout, 454 F.3d at 16 1056. The Ninth Circuit has consistently reversed the Commissioner s decision for 17 failure to comment on such competent testimony. Id. (citing Merrill ex rel. Merrill 18 v. Apfel, 224 F.3d 1083, 1085-86 (9th Cir. 2000); Schneider v. Comm r of Social 19 Sec. Admin., 223 F.3d 968, 974 (9th Cir. 2000); Dodrill v. Shalala, 12 F. 3d 915, 20 919 (9th Cir. 1993)). 21 Defendant asserts that because the ALJ reasonably found plaintiff s 22 subjective complaints to be less than credible, no reasonable ALJ would credit 23 similar statements made by the lay witness. Since this Court finds that the ALJ 24 improperly discredited plaintiff s testimony for lack of clear and convincing 25 reasons, the Court need not address whether a reasonable ALJ would fully credit 26 lay witness statements that are similar to plaintiff s statements. The ALJ s 27 8 1 complete disregard of Petrea Agar s testimony may not be considered harmless 2 error. 3 4 5 6 7 IV. CONCLUSION For the forgoing reasons, the decision of the Commissioner is reversed and remanded for further proceedings, pursuant to Sentence 4 of 42 U.S.C. §405(g). DATED: March 21, 2013 8 9 STEPHEN J. HILLMAN 10 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 9
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