Shirlene A Gonzales v. Commissioner of Social Security, No. 8:2010cv00266 - Document 18 (C.D. Cal. 2010)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Stephen J. Hillman, The Commissioners decision is reversed and the matter remanded for further proceedings in accordance with this decision, pursuant to Sentence 4 of 42 U.S.C. §405(g). (SEE ORDER FOR FURTHER DETAILS) (lmh)
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Shirlene A Gonzales v. Commissioner of Social Security Doc. 18 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION 11 12 19 ) ) ) ) ) ) ) ) ) ) ) ) ) 20 This matter is before the Court for review of the decision by the 13 SHIRLENE GONZALES, 14 Plaintiff, 15 16 17 18 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. Case No.: CV 10-00266 (SH) MEMORANDUM DECISION AND ORDER 21 Commissioner of Social Security denying plaintiff’s application for Disability 22 Insurance Benefits under Title II of the Social Security Act. Pursuant to 27 23 U.S.C. § 636(c), the parties have consented that the case may be handled by the 24 undersigned. The action arises under 42 U.S.C. § 405(g), which authorizes the 25 Court to enter judgment upon the pleadings and transcript of the record before 26 the Commissioner. The plaintiff and the defendant have filed their pleadings 27 (Plaintiff’s Memorandum of Points and Authorities in Support of Plaintiff’s 28 Complaint; Defendant’s Memorandum of Points and Authorities in Opposition to 1 Dockets.Justia.com 1 Plaintiff’s Complaint; and the Plaintiff’s Reply to Defendant’s Opposition), and 2 the defendant has filed the certified transcript of record. After reviewing the 3 matter, the Court concludes that the Commissioner’s decision should be reversed 4 and remanded. On December 19, 2004, Shirlene Gonzales (“plaintiff”) applied for a 5 6 period of disability and disability insurance benefits, alleging inability to work 7 since February 14, 2001. (AR 33-4). Hearings were held on July 10, 2007 and 8 March 18, 2008. (AR 317, 228). On August 13, 2008, an Administrative Law 9 Judge (“ALJ”) determined that plaintiff was not disabled under the Social 10 Security Act. (AR 30-40). Following the Appeals Council’s denial of plaintiff’s 11 request for a review of the hearing decision, plaintiff filed an action in this Court. 12 (AR 7-10). Plaintiff makes six challenges to the ALJ’s Decision denying benefits. 13 14 Plaintiff alleges that the ALJ erred in (1) failing to consider plaintiff’s testimony 15 regarding pain and limitations; (2) failing to consider lay testimony; (3) rejecting 16 the medical opinion of treating physician, Dr. Ronald Zishka; (4) rejecting the 17 medical opinion of treating physician, Dr. Julie Brown; (5) failing to properly 18 develop the record; and (6) assessing plaintiff’s residual functional capacity. 19 For the reasons set forth below, the Court finds that plaintiff’s first claim 20 of error has merit. Since the matter is remanded based on plaintiff’s first claim 21 of error, the Court will not address plaintiff’s second through sixth claims of 22 error. 23 ISSUE NO. 1: 24 Plaintiff asserts that the ALJ failed to properly consider plaintiff’s testimony 25 regarding pain and limitations. Defendant asserts that the ALJ properly discredited 26 the plaintiff’s subjective allegations based upon substantial evidence of the record. 27 28 In this case, plaintiff testified during two separate hearings on July 10, 2007 and March 18, 2008. With respect to her physical impairments, plaintiff 2 1 testified that she has a compromised immune system due to her systemic lupus 2 condition, and therefore, wears a mask to avoid getting sick. (AR 321-22). She 3 also testified that her lupus condition causes severe joint pain of her hands, 4 knees, ankles, shoulders, and hips. (AR 324). In addition to lupus, the plaintiff 5 also testified that she had pleurisy, anemia, diabetes, asthma, sleep apnea (AR 6 324), and fibromyalgia (AR 325). Due to her combined impairments, the plaintiff testified that she is in 7 8 constant pain that affects her throughout the day. (AR 325). She also testified 9 that due to her physical limitations, she is unable to sit, stand, walk for two hours 10 without interruption, or climb stairs. (AR 354). As a result of her physical 11 impairments, the plaintiff testified that she is fatigued and depressed. (AR 324, 12 327). 13 With respect to medication, the plaintiff testified that she takes 14 painkillers, steroids, immunosuppressants, three different types of inhalers for 15 her lungs, and additional medication to treat her anxiety, diabetes, high blood 16 pressure, and seizures. (AR 332). However, she testified that she unable to take 17 all her prescribed medications since she cannot afford them. (AR 350). The 18 plaintiff’s husband, who testified at the first hearing, also stated that plaintiff 19 does not take all her medications since they do not have health insurance, and as 20 a result, cannot afford them. (AR 343, 348). In addition, the plaintiff’s husband 21 testified that they would try their best to get the medications, whether through the 22 internet or by purchasing generic medications. (AR 343). 23 Under the Social Security Act, once a plaintiff meets her burden of 24 showing that she has been diagnosed with a medical impairment that could cause 25 her symptoms, the ALJ must set forth clear and convincing reasons for rejecting 26 pain testimony unless there is affirmative evidence showing that the claimant is 27 malingering. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). In addition, “an 28 [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.” 3 1 Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). Instead, the ALJ must 2 find the plaintiff’s testimony not credible by “rely[ing] either on reasons 3 unrelated to the subjective testimony (e.g., reputation for dishonesty), on 4 conflicts between [plaintiff’s] testimony and [plaintiff’s] own conduct, or on 5 internal contradictions in that testimony.” Light v. Soc. Sec. Admin., 119 F.3d 6 789, 792 (9th Cir. 1997). 7 In this case, the ALJ discredited the plaintiff’s testimony concerning 8 severe pain and physical complaints because of (1) a lack of objective medical 9 evidence supporting plaintiff’s testimony; (2) plaintiff’s failure to comply with 10 prescribed medication; and (3) plaintiff’s inconsistent testimony concerning why 11 she was not compliant with her prescribed medication. (AR 37-8). However, the 12 Court finds that since there is no evidence that the plaintiff was malingering, 13 neither of these reasons are “clear and convincing” for discrediting the plaintiff’s 14 testimony. 15 As to the first reason, the plaintiff asserts that she suffers from a series of 16 medically-determinable impairments, including fibromyalgia, which is a disease 17 that eludes objective measurement. See Benecke v. Barnhart, 379 F.3d 587, 590, 18 594 (9th Cir. 1983). According to Benecke, “Fibromyalgia's cause is unknown, 19 there is no cure, and it is poorly-understood within much of the medical 20 community. The disease is diagnosed entirely on the basis of patients' reports of 21 pain and other symptoms.” Id. at 590. Common symptoms of fibromylagia 22 include chronic pain throughout the body, multiple tender points, fatigue, 23 stiffness, and a pattern of sleep disturbance. Id. at 589-90. 24 Here, it is undisputed that the plaintiff has “an underlying impairment 25 [fibromylagia] which is reasonably likely to be the cause of alleged pain.” See 26 Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991). In fact, not only was the 27 plaintiff’s testimony consistent with the symptoms of fibromylagia (constant 28 pain throughout her body, fatigue, sleep disturbance), but the ALJ acknowledged that plaintiff was diagnosed with the disease. (AR 34). Moreover, the opinions 4 1 of Dr. Concepcion Enriquez, an examining physician, and Dr. Joselyn Bailey, a 2 nontreating, nonexamining medical expert who testified at the hearing in which 3 the defendant relies on in justifying discrediting the plaintiff’s testimony, also 4 acknowledged that plaintiff was diagnosed with fibromylagia. (AR 149-53, 245- 5 49, 281-90, 362, 366-7). Since the plaintiff demonstrated an underlying 6 impairment (fibromylagia) that is reasonably likely to be the cause of her alleged 7 symptoms and pain, the ALJ erred in requiring objective, medical evidence to 8 support the degree of disability alleged by the plaintiff, and therefore, erred in 9 discrediting the plaintiff’s testimony.1 With respect to the ALJ’s second and third reasons, the ALJ opined that 10 11 the claimant’s testimony regarding her usage of prescription medications was 12 “equivocal.” (AR 37). Specifically, the ALJ noted that “[t]he claimant . . . 13 testified that she could not afford medications, that she obtained samples from 14 her doctors, and that she bought generics. Each statement was used at various 15 times. These statements are not only inconsistent with each other, but 16 demonstrate a patten of incessant embellishment characterizing her testimony.” 17 (AR 37-8). Since the ALJ found the plaintiff’s testimony inconsistent, he 18 ultimately concluded that the plaintiff had not been consistently taking 19 prescribed medications. (AR 37). He specifically noted “low valproic acid 20 levels,” which was consistent with a finding that the plaintiff was not compliant 21 with taking her anti-convulsant medication, Depakote. (AR 35, 38). 22 However, “[w]here a claimant provides evidence of a good reason for not 23 taking medication for her symptoms, her symptom testimony cannot be rejected 24 for not doing so.” Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1998); see 25 1 The Court notes that even if the ALJ’s first reason had merit, such a finding 26 would not be dispositive in determining whether the ALJ erred in discrediting the plaintiff’s testimony since an ALJ cannot discredit a plaintiff’s pain testimony 27 solely on the lack of objective medical evidence. See Cotton v. Bowen, 799 F.2d 28 1403, 1407 (9th Cir. 1986) ("it is improper as a matter of law to discredit excess pain testimony solely on the ground that it is not fully corroborated by objective medical findings"). 5 1 also Reginnitter v. Commissioner of Soc. Sec., 166 F.3d, 1294, 1297 (9th Cir. 2 1998) (explaining that it is impermissible to reject “a claimant’s complaints for 3 lack of treatment when the record establishes the claimant could not afford it.”) 4 With these principles in mind, as plaintiff correctly asserts, her testimony 5 concerning taking medication was not inconsistent. The plaintiff and her 6 husband both testified that they could not afford all of the medications, and 7 therefore, resorted to other means, such as purchasing generic medications and 8 obtaining samples from doctors. Contrary to the ALJ’s findings, nothing in these 9 statements establish inconsistent testimony that would justify discrediting 10 plaintiff’s testimony. The plaintiff’s inability to afford medication was a valid 11 explanation for inconsistently taking medication. 12 Accordingly, having found neither of the ALJ’s reasons for discrediting 13 plaintiff’s testimony convincing, the Court concludes the ALJ erred in 14 discrediting the plaintiff’s testimony regarding pain and limitations. ORDER 15 16 For the foregoing reasons, the Commissioner’s decision is reversed and 17 the matter remanded for further proceedings in accordance with this decision, 18 pursuant to Sentence 4 of 42 U.S.C. §405(g). 19 DATED: October 7, 2010 20 21 ___________________________________ 22 STEPHEN J. HILLMAN 23 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 6
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