Shain Michael Kerr v. Michael J Astrue, No. 5:2012cv00782 - Document 17 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman: For the reasons stated below, the Commissioner's decision is remanded for further proceedings. (See document for details.) As a general rule, remand is warranted where additional administrative proceedings could remedy defects in the Commissioner's decision. See Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000). In this case, remand for a new hearing is appropriate to properly consider the Plaintiffs testimony. Accordingly, the decision of the Commissioner is reversed, and this action is remanded for further proceedings consistent with this opinion and order. (rla)
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 EASTERN DIVISION 8 9 SHAIN MICHAEL KERR, Plaintiff, 10 v. 11 12 13 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 12-00782-MLG MEMORANDUM OPINION AND ORDER 16 17 Plaintiff Shain Michael Kerr ( Plaintiff ) seeks judicial review of 18 the 19 Disability Insurance Benefits ( DIB ) and Supplemental Security Income 20 ( SSI ) pursuant to Titles II and XVI of the Social Security Act. For 21 the reasons stated below, the Commissioner s decision is remanded for 22 further proceedings. Commissioner s final decision denying his applications for 23 24 I. Factual and Procedural Background 25 Plaintiff was born on October 2, 1980. (Administrative Record 26 ( AR ) at 58.) He has work experience as a truck driver, tire changer, 27 and lubrication technician. (AR at 52.) On April 24, 2008, Plaintiff 28 filed applications for DIB and SSI, alleging that he has been disabled 1 1 since February 1, 2007, due to asthma and back pain. (AR at 11.) The 2 Social Security Administration denied Plaintiff s applications initially 3 and on reconsideration. (AR at 11, 57-58, 62-63.) An administrative 4 hearing was held before Administrative Law Judge ( the ALJ ) Maxine R. 5 Benmour 6 represented by counsel, testified at the hearing, as did a vocational 7 expert ( VE ). (AR at 11.) on September 22, 2010. (AR at 11.) Plaintiff, who was 8 The ALJ issued a decision on October 21, 2010, denying Plaintiff s 9 application. (AR at 11-18.) The ALJ found that Plaintiff suffers from 10 the severe impairments of asthma and chronic obstructive pulmonary 11 disease 12 degenerative 13 determined that while Plaintiff is unable to perform his past relevant 14 work, he has the residual functional capacity ( RFC ) to perform a 15 limited range of light work. (AR at 14.) The Appeals Council denied 16 review on March 16, 2012. (AR at 1-3.) (COPD), disc as well disease as and the non-severe osteoporosis. impairments (AR at of 13-14.) mild She 17 Plaintiff commenced this action for judicial review, and the 18 parties filed a Joint Stipulation of disputed factual and legal issues 19 on October 12, 2012. Plaintiff contends that the ALJ erred in assessing 20 Plaintiff s credibility and rejecting his subjective complaints. (Joint 21 Stip. at 3.) Plaintiff also argues that the ALJ erred in rejecting the 22 opinion of Plaintiff s treating physician, Allen Gorenberg, M.D. (Joint 23 Stip. at 9.) Plaintiff seeks remand for further proceedings, while the 24 Commissioner requests that the ALJ s decision be affirmed. (Joint Stip. 25 at 16.) 26 // 27 // 28 // 2 1 II. Standard of Review 2 Under 42 U.S.C. ยง 405(g), a district court may review the 3 Commissioner s decision to deny benefits. The Commissioner or ALJ s 4 decision must be upheld unless the ALJ s findings are based on legal 5 error or are not supported by substantial evidence in the record as a 6 whole. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Parra v. 7 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means 8 such evidence as a reasonable person might accept as adequate to support 9 a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark 10 v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a 11 scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 12 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial 13 evidence supports a finding, the reviewing court must review the 14 administrative record as a whole, weighing both the evidence that 15 supports 16 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If 17 the evidence can support either affirming or reversing the ALJ s 18 conclusion, the reviewing court may not substitute its judgment for 19 that of the ALJ. Robbins, 466 F.3d at 882 and the evidence that detracts from the Commissioner s 20 21 III. Discussion 22 A. The ALJ Improperly Evaluated Plaintiff s Credibility 23 Plaintiff argues that the ALJ failed to properly evaluate his 24 credibility regarding his subjective complaints in determining his RFC. 25 At 26 conditions have been gradually getting worse over the years and finally 27 reached a point that prevented him from working in 2007. (AR at 31.) He 28 stated that due to problems including wheezing, shortness of breath, and the hearing, Plaintiff testified 3 that his asthma and related 1 coughing, he uses albuterol every three or four hours. (AR at 32.) The 2 albuterol helps sometimes. (AR at 32-33.) Frequently, he also suffers 3 from severe attacks which necessitate the use of a breathing machine or 4 require him to go to the hospital. (AR at 33-34.) About two days per 5 week he spends most of the day in bed due to pain and shortness of 6 breath. (AR at 47.) He tries to limit his visits to the hospital and his 7 doctor because he cannot afford them and does not have insurance. (AR at 8 36, 40.) Regarding daily activities, Plaintiff testified he usually 9 watches television and uses his computer for a few hours. (AR at 43.) He 10 lives with his parents and cleans his room and occasionally does the 11 dishes, but he cannot vacuum or dust. (AR at 40.) Sometimes, he works in 12 the garage on his motorcycles, and every couple of months, he goes for 13 a local ride with friends. (AR at 44-45.) He also goes to the store and 14 drives his siblings to work or school several times a week, but not if 15 he is not having a bad day. (AR at 45, 48.) 16 To determine whether a claimant's testimony about subjective pain 17 or symptoms is credible, the ALJ must first determine whether the 18 claimant has presented objective medical evidence of an underlying 19 impairment which could reasonably be expected to produce the alleged 20 pain or other symptoms. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 21 (9th 22 adjudicator may not reject a claimant's subjective complaints based 23 solely on a lack of objective medical evidence to fully corroborate the 24 alleged severity of pain. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th 25 Cir. 1991) (en banc). Rather, the ALJ must provide specific, clear and 26 convincing reasons for discrediting a claimant's complaints, unless 27 there is affirmative evidence showing that the claimant is malingering. 28 Robbins, 466 F.3d at 883. Cir. 2007). Once the claimant 4 produces such evidence, an 1 Here, the ALJ concluded that Plaintiff's medically determinable 2 impairments could reasonably be expected to cause some of the alleged 3 symptoms. (AR at 16.) However, the ALJ rejected as not credible 4 Plaintiff's 5 limiting effects of these symptoms to the extent they are inconsistent 6 with the ALJ's RFC determination. (AR at 16.) As there was no evidence 7 of malingering, the ALJ was required to provide clear and convincing 8 reasons for rejecting this testimony. The 9 statements ALJ listed concerning multiple the intensity, reasons for persistence rejecting and Plaintiff s 10 testimony, none of which are supported by substantial evidence. First, 11 the ALJ stated that Plaintiff testified that his asthma is basically 12 under control with the use of albuterol, and that he is able to function 13 for two to three hours at a time when he gives himself a breathing 14 treatment. (AR at 16.) This mischaracterizes Plaintiff s testimony. 15 Plaintiff testified that albuterol helps sometimes but not when he is 16 having a severe attack. (AR at 32-33.) During severe attacks, which 17 occur frequently, he must go to the hospital or use a breathing machine 18 that he keeps at home.1 19 the 20 physicians, explicitly opines on whether albuterol keeps Plaintiff s 21 asthma under control or the extent of his functioning after breathing 22 treatment. (AR at 214-18, 226-30, 247-48.) record, including Furthermore, none of the physician opinions in those of the two state agency reviewing 23 Next, the ALJ discredited Plaintiff s symptom testimony based on 24 his daily activities, which the ALJ found to be inconsistent with 25 26 27 28 1 It appears from the record that this breathing machine can only be used while hooked up, unlike an inhaler. (AR at 33-34.) To the extent the machine could be brought to work and used there, the ALJ did not include the requirement of breaks to use it in the hypothetical given to the VE. (AR at 52.) 5 1 disabling impairment. (AR at 16.) A disability claimant's daily 2 activities may be grounds for an adverse credibility finding if a 3 claimant is able to spend a substantial part of his day engaged in 4 pursuits involving the performance of physical functions that are 5 transferable to a work setting. Orn v. Astrue, 495 F.3d 625, 639 (9th 6 Cir. 2007) (internal quotation marks omitted). Here, however, the 7 limited activities Plaintiff engages in are not inconsistent with his 8 testimony regarding his symptoms. None of the activities lasts longer 9 than a couple of hours, and their performance is therefore consistent 10 with Plaintiff s testimony that sometimes using albuterol stops him from 11 having an asthma attack for three or four hours. Additionally, Plaintiff 12 testified that he only engages in the more exertional activities, such 13 as giving his siblings a ride, when he is not having a bad day, and 14 therefore these activities are not inconsistent with his testimony that 15 he generally spends two days per week in bed. In short, these limited 16 activities are not the sort that are easily transferable to a work 17 setting where it might be impossible to periodically rest or take 18 medication. Blau v. Astrue, 263 Fed.Appx. 635, 637 (9th Cir. 2008) 19 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). The fact 20 that Plaintiff is not utterly incapacitated does not prevent a finding 21 of disability nor render his symptom testimony not credible. 22 Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (citing Fair, 23 885 F.2d at 603). See 24 The ALJ also rejected Plaintiff s symptom testimony as not credible 25 based on the fact that Plaintiff had only been hospitalized once, for 26 twelve hours, in the year prior to the hearing. (AR at 16.) [A]n 27 unexplained, or inadequately explained, failure to seek treatment may be 28 the basis for an adverse credibility finding unless one of a number of 6 1 good reasons for not doing so applies. Orn, 495 F.3d at 638 (9th Cir. 2 2007) (internal citations and quotation marks omitted). One such good 3 reason for failing to seek treatment is the inability to afford it. Id. 4 Here, Plaintiff did not have insurance and could not afford more 5 extensive treatment. (AR at 36, 40, 285, 288, 289). He testified that 6 when he has gone to the hospital, they usually don t keep me long, 7 because of his lack of insurance. Furthermore, despite his lack of 8 resources, Plaintiff did see his treating physician, Dr. Gorenberg, on 9 a near monthly basis in the years prior to the hearing. (AR at 49.) 10 Under these circumstances, the lack of additional hospitalizations is 11 not a clear and convincing reason for finding Plaintiff not credible. 12 Finally, the ALJ found that Plaintiff has been able to work at 13 demanding 14 conditions, and that there was no evidence that his impairments have 15 become worse over time. (AR at 16.) The ALJ did not state on what 16 evidence she based her conclusion that Plaintiff s symptoms have not 17 deteriorated over time. While not entirely clear, the treatment records 18 from Dr. Gorenberg do seem to show that his impairments have worsened. 19 (See AR at 250-314.) For example, a note from a visit in 1999 states 20 that Plaintiff was there for a checkup but feels fine, (AR at 270), 21 while a progress note from late 2007 note that Plaintiff s asthma is 22 wildly uncontrolled. (AR at 282.) There is no evidence in the record 23 demonstrating that Plaintiff s impairments were as severe during the 24 years that he was employed as he now claims them to be. occupations while suffering from asthma and related 25 In sum, the reasons given by the ALJ for rejecting Plaintiff s 26 testimony were not supported by substantial evidence in the record and 27 were therefore insufficient to reject his testimony regarding his 28 symptoms and related limitations. 7 1 IV. 2 As Conclusion a general rule, remand is warranted where additional 3 administrative proceedings could remedy defects in the Commissioner's 4 decision. See Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000). In 5 this case, remand for a new hearing is appropriate to properly consider 6 the Plaintiff s testimony. 7 Accordingly, the decision of the Commissioner is reversed, and this 8 action is remanded for further proceedings consistent with this opinion 9 and order.2 10 11 DATED: October 31, 2012 12 13 ______________________________ Marc L. Goldman United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Because the matter is being remanded for a new hearing, the Court will not address the claim relating tot he testimony of the treating physician. 8
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