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Gardner v. Astrue

July 31, 2009

DONALD GARDNER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Stephen J. Hillman United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

This matter is before the Court for review of the Decision by the Commissioner of Social Security denying plaintiff's application for Disability Insurance Benefits under Title II of the Social Security Act. Pursuant to 28 U.S.C. § 636(c), the parties have consented that the case may be handled by the undersigned. The action arises under 42 U.S.C. § 405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The plaintiff and the defendant have filed their pleadings, the defendant has filed the certified transcript of record, and the parties have filed a joint stipulation. After reviewing the matter, the Court concludes that the decision of the Commissioner should be reversed and remanded.

On June 8, 2005, plaintiff Donald Gardner filed an application for a period of disability or Disability Insurance Benefits, alleging an inability to work since March 30, 2002, due to asthma and pain in his feet caused by Ainhum disease.*fn1 (See Administrative Record ["AR"] 60-62, 83-90). On June 15, 2007, subsequent to a hearing, an Administrative Law Judge ("ALJ"), who found that plaintiff had severe impairments (asthma, Ainhum disease), determined that plaintiff was not disabled within the meaning of the Social Security Act. (AR 16-25).

Following the Appeals Council's denial of plaintiff's request for a review of the hearing decision (AR 5-7), plaintiff filed an action in this Court.

Plaintiff makes four challenges to the ALJ's 2007 Decision denying benefits. Plaintiff alleges that the ALJ erred in (1) failing to properly consider the medical evidence; (2) failing to properly evaluate plaintiff's credibility; (3) failing to properly consider lay witness testimony; and (4) failing to pose a complete hypothetical question to the vocational expert.

For the reasons discussed below, the Court finds that plaintiff's second claim of error does have merit. Since the matter is remanded based on plaintiff's second claim of error, the Court will not address plaintiff's first, third and fourth claims of error.

ISSUE NO. 2:

Plaintiff asserts that the ALJ improperly found that plaintiff's "statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible" (AR 23). Plaintiff alleges that the ALJ failed to state which of plaintiff's statements were not credible and why such statements were not credible. Plaintiff further alleges that it appeared the ALJ failed to consider all of the evidence in his determination about plaintiff's credibility. In response, defendant argues that the ALJ provided specific, clear and convincing reasons for his credibility finding.

The Commissioner's assessment of plaintiff's credibility should be given great weight. Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). "If the ALJ's decision is based on a credibility assessment, there must be an explicit finding as to whether the plaintiff's testimony was believed or disbelieved and the testimony must not be entirely discounted simply because there was a lack of objective findings." Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986). Furthermore, if the Commissioner chooses to disregard plaintiff's testimony, the Commissioner must set forth specific cogent reasons for disbelieving it. Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981); Holohan v. Massanari, 246 F.3d 1195 (9th Cir. 2001). Once the plaintiff produces objective medical evidence of an underlying impairment, the ALJ may still reject the plaintiff's excess pain testimony, but only by setting forth clear and convincing reasons for doing so. Light v. Social Sec. Admin., 119 F.3d 780, 792 (9th Cir. 1997); Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); seealsoReddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). In evaluating a claimant's credibility, the ALJ may consider the claimant's reputation for truthfulness, inconsistencies within the claimant's testimony or as between his testimony and conduct, the claimant's daily activities, work history, as well as testimony from physicians or third parties concerning the nature, severity, and effect on the symptoms of which the claimant complains.Light, supra; see also Reddick, supra (although disability claimants should not be penalized for trying to lead normal lives despite their limitations, when the level of their activities are inconsistent with their claimed limitations, those activities have a bearing on the claimants' credibility).

At the administrative hearing, plaintiff testified that he has problems with his asthma when he is exposed to dust or fumes. (See AR 416). Plaintiff further testified that in 2003 or 2004 he had to have his left baby toe amputated after a couple of years of severe pain,*fn2 that he was developing bunions under that toe, that he was experiencing pain with the next two left toes and the right three smallest toes, that he could stand or walk for only about 30 minutes (and then he needed to get off his feet for a couple of hours), and that pain medication (Naprosyn and Vicodin) only provided temporary relief. (See AR 416-20).

In his Decision, the ALJ found that plaintiff's asthma and Ainhum disease "could reasonably be expected to produce the alleged symptoms[.]" (AR 23). Nonetheless, the ALJ found that the "statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible." (Id.).

As plaintiff points out, it is not entirely clear on what bases the ALJ made the determination about plaintiff's credibility as to his foot condition.*fn3

The ALJ's credibility finding as to plaintiff's foot condition appeared to rely on the following: (1) plaintiff's testimony at the hearing that "[h]is pain sometimes improves enough to the point that he only needs non-prescription pain relief" (AR 23); (2) the notation during the application interview that plaintiff had no difficulties moving about (Id.); (3) the State Agency consultant's opinion that plaintiff did not have a need for a cane (Id.); (4) the fact that plaintiff "has shoe inserts to address his amputated toe, foot pain and abnormal gait" (Id.); (5) plaintiff's treating podiatrist's statements that plaintiff has successfully healed from toe amputation and that his pain is controlled (Id.); and (6) plaintiff's statements that he can lift 50 pounds, do his own grocery shopping, clean the house, change the battery, wash his car and do yard work (Id.).

Contrary to the ALJ's statement, plaintiff did not testify that he sometimes takes non-prescription pain medication. Rather, plaintiff testified that he takes Naprosyn for mild pain and Vicodin for more severe pain. (AR 420). It was not clear that plaintiff was taking Naprosyn as a non-prescription pain medication. There was no indication as to the extent to which plaintiff suffered mild pain as opposed to severe pain. The fact that plaintiff may ...


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