Theodore Richard Berkey v. Michael J Astrue, No. 8:2012cv01762 - Document 13 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. (ca)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 THEODORE RICHARD BERKEY, Plaintiff, 11 12 13 14 15 v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. SA CV 12-1762-PJW MEMORANDUM OPINION AND ORDER 16 17 18 I. INTRODUCTION Plaintiff appeals a decision by Defendant Social Security 19 Administration ( the Agency ), denying his application for Disability 20 Insurance benefits ( DIB ). 21 Judge ( ALJ ) erred when she: (1) found that he did not have a severe 22 liver impairment; (2) discounted the opinions of the treating and 23 examining doctors; and (3) concluded that he was not credible. 24 the following reasons, the Court concludes that the ALJ erred and 25 remands the case to the Agency for further proceedings consistent with 26 this memorandum opinion and order. 27 28 He claims that the Administrative Law For 1 II. 2 SUMMARY OF PROCEEDINGS In April 2010, Plaintiff applied for DIB, claiming that he was 3 disabled due to Hepatitis B and C, high blood pressure, dizziness, 4 joint pain, mood swings, and depression. 5 ( AR ) 24, 222-23, 254.) 6 reconsideration, after which he requested and was granted a hearing 7 before an ALJ. 8 December 2011, the ALJ issued a decision, finding that Plaintiff was 9 not disabled and denying benefits. (Administrative Record His application was denied initially and on (AR 142-46, 148-60.) Following the hearing in (AR 24-33.) 10 the Appeals Council, which denied review. 11 Plaintiff appealed to followed. 12 13 14 (AR 1-5.) This action III. DISCUSSION A. The Step-Two Determination Plaintiff claimed that he suffered from Hepatitis B and C, the 15 manifestations of which precluded him from working. 16 that that there was no objective evidence to support this claim and, 17 concluded, therefore, that it was not a severe impairment. 18 Plaintiff contends that this was error. 19 the Court remands this issue to the Agency for further analysis. 20 The ALJ found (AR 27.) For the following reasons, Under 20 C.F.R. § 416.921, a non-severe impairment is one that 21 does not significantly limit a person s physical or mental capacity to 22 perform basic work-related functions. 23 impairment is non-severe is a de minimis screening device [used] 24 to dispose of groundless claims. 25 1152, 1158 (9th Cir. 2001) (quoting Smolen v. Chater, 80 F.3d 1273, 26 1290 (9th Cir. 1996)). 27 medical evidence establishes only a slight abnormality . . . which 28 would have no more than a minimal effect on an individual s ability to The determination that an Edlund v. Massanari, 253 F.3d Such a finding is only appropriate when the 2 1 work . . .. 2 Yuckert, 482 U.S. 137, 154 (1987). 3 Social Security Ruling 85-28; see also Bowen v. The evidence before the ALJ established that Plaintiff exhibited 4 elevated levels of liver enzymes (AST and ALT) in four blood tests 5 between December 2009 and February 2011. 6 addition, when Plaintiff s platelets were analyzed twice during this 7 same period, his platelet counts were low. 8 expert testified that, though this evidence could indicate that 9 Plaintiff suffered from Hepatitis, he could not confirm this diagnosis (AR 383, 522-24.) (AR 522-23.) In The medical 10 without test results showing the presence of Hepatitis antigens or 11 antibodies in the blood. 12 (AR 124.) Consistent with the medical expert s testimony, the ALJ 13 determined that there was insufficient evidence to find that Plaintiff 14 suffered from Hepatitis. 15 Plaintiff had his blood tested and it proved positive for Hepatitis C 16 antibodies. 17 Council, but the Appeals Council did not find that it supported a 18 change to the ALJ s finding that Plaintiff s Hepatitis was not a 19 severe impairment. 20 (AR 531.) (AR 27.) Less than three months later, This evidence was submitted to the Appeals (AR 1-7.) The Appeals Council erred in reaching this conclusion. It 21 appears to be undisputed that Plaintiff (who is now deceased) suffered 22 from Hepatitis C. 23 liver enzymes could be consistent with such a diagnosis but that that 24 diagnosis could not be confirmed without a blood test showing that 25 there were Hepatitis antibodies in the blood. 26 2012 blood test confirmed the existence of Hepatitis C antibodies, 27 thus, also confirming the existence of Hepatitis. The medical expert testified that the elevated 28 3 (AR 124.) The April (AR 531.) The 1 Appeals Council s decision that this new evidence did not require a 2 change to the ALJ s finding was wrong. 3 The Agency disagrees. It argues that there was no evidence of 4 Hepatitis B or C antibodies during the relevant period, presumably 5 the period ending with the ALJ s decision on January 30, 2012. 6 Stip. at 10.) 7 supposition that Plaintiff contracted Hepatitis between January 30, 8 2012 and April 4, 2012. 9 notion. (Joint It appears that this argument is premised on the There is no evidence to support such a In fact, the evidence supports the opposite conclusion. The 10 objective evidence that is in the record -i.e., the elevated liver 11 enzyme levels and the treatment notes from Plaintiff s doctors, which 12 were based on their examinations--supports Plaintiff s view that the 13 antibody evidence is nothing more than confirmation of what was 14 already apparent from the record. 15 test results should be confined to the post-January 30, 2012 period, 16 they are relevant. 17 1157, 1162 (9th Cir. 2012) (explaining administrative record includes 18 evidence submitted to and considered by the Appeals Council that 19 relates to period before ALJ s decision); see also 20 C.F.R. 20 § 404.970(b) ( If new and material evidence is submitted, the Appeals 21 Council shall consider the additional evidence only where it relates 22 to the period on or before the date of the administrative law judge 23 hearing decision. ). Absent evidence that the April 2012 See Brewes v. Comm'r, Soc. Sec. Admin., 682 F.3d 24 The ALJ also relied on the fact that Plaintiff had not sought 25 treatment for Hepatitis to conclude that Plaintiff s condition was not 26 severe. 27 In the first place, Plaintiff was being treated by a doctor who had 28 recognized as early as 2007 that he was suffering from Hepatitis and (AR 27.) The record does not support this finding, either. 4 1 was treating him for this and his other afflictions. 2 the second, Plaintiff s treating records reflect that he did not 3 receive additional treatment for Hepatitis because he could not afford 4 it. 5 the lack of treatment in analyzing this impairment. 6 Chater, 68 F.3d 319, 321 (9th Cir. 1995) ( [A] disabled claimant 7 cannot be denied benefits for failing to obtain medical treatment that 8 would ameliorate his condition if he cannot afford that treatment . . 9 .. ). (AR 385, 464, 490.) (AR 403.) In As such, the ALJ should not have relied on See Gamble v. 10 The Agency points to the fact that Plaintiff did not quit 11 drinking when advised to by his treating doctor to do so and argues 12 that this is evidence that his Hepatitis was not a severe impairment. 13 (Joint Stip. at 13.) 14 however, because the ALJ did not rely on it. 15 F.3d 1219, 1225 (9th Cir. 2009) ( Long-standing principles of 16 administrative law require us to review the ALJ s decision based on 17 the reasoning and factual findings offered by the ALJ--not post hoc 18 rationalizations that attempt to intuit what the adjudicator may have 19 been thinking. ). 20 The Court will not rely on this explanation, See Bray v. Astrue, 554 Having concluded that the Agency erred, the Court must also 21 address the issue of whether the error was harmless. The Court finds 22 on this record that it was not. 23 it is clear that the ALJ accounted for any resulting limitations 24 caused by the allegedly non-severe impairment in a later step. 25 v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007); see also Stout v. 26 Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006) (noting 27 that an error is harmless if it is inconsequential to the ultimate 28 non-disability determination. ). An error at step two is harmless when Lewis Here, it is not clear whether the 5 1 ALJ did. Although the medical expert testified that he had considered 2 Listing 5.05 for chronic liver disease in his analysis (AR 122), he 3 apparently did not incorporate -or even consider--any limitations, 4 such as memory loss, malaise, and chronic fatigue, that Plaintiff s 5 treating and examining doctors identified as resulting from liver 6 disease. 7 the error was not harmless and remand on this issue is warranted.1 8 See Stout, 454 F.3d at 1055. 9 B. (AR 462, 466, 490.) Nor did the ALJ. (AR 29-32.) As such, The Doctors Opinions Plaintiff contends that the ALJ erred when she rejected the 10 11 opinions of his treating doctor Harris and examining doctor Ovalle, 12 who opined that Plaintiff was severely limited in his ability to 13 function. 14 contrast[ed] with the medical evidence--and Dr. Ovalle s, in part, 15 because it was not consistent with the record as a whole. 16 In light of the fact that the Court has concluded that the medical 17 evidence established that Plaintiff suffered from Hepatitis, which was 18 consistent with these doctors findings, this issue, too, is remanded 19 for further consideration. 20 C. 21 The ALJ rejected Dr. Harris opinion--because it sharply (AR 31-32.) The Credibility Determination Plaintiff argues that the ALJ erred in concluding that he was not 22 credible. 23 failed to give adequate reasons for rejecting Plaintiff s testimony. 24 ALJs are tasked with judging the credibility of witnesses. 25 For the following reasons, the Court finds that the ALJ In making credibility determinations, they may employ ordinary 26 27 28 1 Plaintiff also underwent an ultrasound in April 2012, which confirmed that he suffered from cirrhosis of the liver. (AR 534.) This, too, should be considered by the Agency on remand. 6 1 credibility evaluation techniques. 2 claimant has produced objective medical evidence of an impairment 3 which could reasonably be expected to produce the symptoms alleged and 4 there is no evidence of malingering, the ALJ can only reject the 5 claimant s testimony for specific, clear, and convincing reasons that 6 are supported by substantial evidence in the record. 7 Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 8 9 Smolen, 80 F.3d at 1284. Where a Id. at 1283-84; Plaintiff testified that he suffered from constant pain in his lower back, hips, and legs. (AR 131.) As a result, he could only sit 10 for twenty minutes at a time and then had to get up and move around 11 for at least twenty minutes. 12 for at least two hours out of an eight-hour day and took two to three 13 naps a day because pain prevented him from sleeping well at night. 14 (AR 129-30.) 15 132.) 16 behalf, she reported that he could not sit or stand for long and 17 could only walk approximately one hundred yards before needing to stop 18 and rest for ten minutes. 19 He also reported that he had to lie down Plaintiff claimed that he also had memory problems. (AR In a statement filled out by his wife and submitted on his (AR 277.) The ALJ discounted these claims because: (1) Plaintiff s daily 20 activities were inconsistent with his alleged limitations; and 21 (2) although Plaintiff reported a history of depression and anxiety, 22 he denied ever seeing a psychiatrist, being hospitalized for 23 psychiatric treatment, [] receiving any psychiatric treatment[,] 24 including psychotherapy, and declined counseling when his treating 25 doctor strongly advised it. 26 (AR 31.) The ALJ s first reason is not clear and convincing. Plaintiff 27 reported that he prepared soup and sandwiches three times a week and 28 gave food and water to his pets. (AR 273-74.) 7 He also claimed that 1 he was able to take out the trash, sweep the porch for five minutes at 2 a time, dust for ten minutes at a time, and do one load of laundry a 3 week. 4 no longer garden, mow the lawn, or work on cars and motorcycles and 5 that he could drive and shop for groceries for 30 minutes at a time. 6 (AR 134, 275.) 7 (AR 274.) He reported that he went outside every day but could These activities are not inconsistent with Plaintiff s claims 8 that he was unable to sustain full-time work. As such, they do not 9 constitute a sufficient basis for questioning his testimony that he 10 was unable to work. 11 1049-50 (9th Cir. 2001) (overruling ALJ s finding that claimant s 12 testimony that she could not work was undermined by her reported daily 13 activities where extent of daily activities did not suggest she 14 performed them a substantial part of the day or that they would 15 transfer to work setting). 16 See, e.g., Vertigan v. Halter, 260 F.3d 1044, As to the ALJ s second reason for questioning Plaintiff s 17 testimony -that he did not seek psychiatric treatment despite his 18 allegations of disabling anxiety and depression -this is not supported 19 by the record, either. 20 treated him with medication for anxiety (among other things) for 21 almost two years (from April 2009 to March 2011), which, apparently, 22 controlled his symptoms. 23 Beginning in March 2011, and continuing to November 2011, Dr. Harris 24 noted increased anxiety and depression, panic attacks, and poor 25 improvement with medication and encouraged Plaintiff to seek 26 counseling. 27 rejected Dr. Harris advice to seek counseling. Plaintiff s treating doctor, Dr. Harris, (AR 384-389, 392-95, 436, 443-44.) (AR 443-44, 490-91, 498-99.) 28 8 In November 2011, Plaintiff (AR 499.) 1 Thus, though there was a brief period before the January 2012 2 decision in which Plaintiff elected not to treat his anxiety as 3 recommended, it appears from the record that, throughout the majority 4 of the relevant period, he was being treated for it. 5 of this case, where Plaintiff allegedly suffered from a mental/ 6 emotional impairment, the Court is hard pressed to agree with the ALJ 7 that Plaintiff s failure to follow his doctor s advice and seek 8 specialized care for his condition is sufficient cause to discredit 9 his entire testimony. In the context Regennitter v. Comm r of Social Sec. Admin., 10 166 F.3d 1294, 1299-1300 (9th Cir. 1999) ( [I]t is a questionable 11 practice to chastise one with a mental impairment for the exercise of 12 poor judgment in seeking rehabilitation. ) (quoting Nguyen v. Chater, 13 100 F.3d 1462, 1465 (9th Cir. 1996)). 14 remanded for further consideration.2 15 16 17 IV. As such, this issue, too, is CONCLUSION For the reasons set forth above, the ALJ s decision is reversed and the case is remanded to the Agency for further consideration. 18 IT IS SO ORDERED. 19 DATED: September 26, 2013. 20 21 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 22 23 S:\PJW\Cases-Social Security\BERKEY, 1762\Memo Opinion and Order.wpd 24 25 26 27 28 2 The parties informed the Court in the Joint Stipulation that Plaintiff died in January 2013 and have both discussed and relied on Plaintiff s death certificate, which was purportedly attached to the Joint Stipulation. The death certificate was not attached to the Joint Stipulation and the Court has not considered it in reaching its decision. 9
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