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Antonio Ibarra-Barajas v. Commissioner of Social Security

January 27, 2011

ANTONIO IBARRA-BARAJAS,
PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER REMANDING CASE FOR FURTHER DEVELOPMENT OF THE RECORD

Plaintiff Antonio Ibarra-Barajas, proceeding in forma pauperis, by his attorney, Christenson Law Firm, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits under Title II, and for supplemental security income ("SSI") under Title XVI, of the Social Security Act (42 U.S.C. § 301 et seq.) (the "Act"). The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge.*fn1

Having reviewed the complete record and applicable law, this Court finds that the Administrative Law Judge ("ALJ") erred both in completely rejecting the opinion of Plaintiff's treating physician and in failing to order supplementation of the record through examination and testing by a consultant physician. As a result, the ALJ's opinion of Plaintiff's residual functional capacity ("RFC"), which was based solely on the conclusory opinions of non-examining agency physicians, was not supported by substantial evidence. Accordingly, the Court reverses the agency's determination and remands Plaintiff's application for disability benefits to the agency for development of a record adequate to support a grant or denial of benefits to Plaintiff.

I. Administrative Record

A. Procedural History

On October 31, 2006, Plaintiff filed protectively for a period of disability and disability insurance benefits. AR 13. His claims were initially denied on March 14, 2007, and upon reconsideration, on September 12, 2007. AR 13. On October 15, 2007, Plaintiff filed a timely request for a hearing. AR 13. Plaintiff appeared and testified at a hearing on January 28, 2009. AR 26-33. On April 16, 2009, Administrative Law Judge Christopher Larsen ("ALJ") denied Plaintiff's application. AR 13-19. The Appeals Council denied review on July 31, 2009. AR 1-3. On September 23, 2009, Plaintiff filed a complaint seeking this Court's review (Doc. 1).

B. Agency Record

Plaintiff's testimony. Plaintiff (born December 9, 1955), a former farm worker, cannot read or write English. AR 27. His only education consisted of attending the first grade while living in Mexico. AR 26-27. He worked picking fruit until he became ill, could not breathe, and was hospitalized. AR 27-28.

Plaintiff rents a room from relatives. AR 30. He cooks and cleans for himself. AR 30. He can drive for about an hour before needing to stop and rest. AR 30.

Plaintiff now has continual problems breathing. AR 28. When he walks "a little bit," he experiences pain and cannot breathe. AR 28. Plaintiff also becomes breathless when he tries to clean his room or encounters such things as smog, sprays, perfume, or cooking odors. AR 28.

His condition was treated with several inhalers, which helped Plaintiff. AR 28. Nonetheless, he had attacks of breathing difficulty every two or three days, in which he felt as though he was choking for fifteen or sixteen minutes. AR 28-29. His inhalers helped relieve his breathlessness but caused headaches. AR 29, 32. He visited the doctor every three months to renew the medications. AR 29.

Although he could lift and carry fifty pounds, he could not sustain that work for more than twenty or thirty minutes. AR 30-31. He could lift and carry fifteen to twenty pounds for two to three hours a day. AR 31. He could stand for about an hour at a time; sit, for an hour and a half to two hours. AR 31. He needed hourly rest breaks of twenty to thirty-five minutes. AR 31.

Plaintiff experienced some days that were far worse than others. AR 31. Both hot and cold weather exacerbated his breathing difficulties. AR 32. Going outside in winter caused pain in his lungs. AR 31-32. In the summer, he needed to stay in the shade. AR 32.

Daily activities questionnaire. In a daily activities questionnaire dated November 20, 2006, Plaintiff reported that, because of the shortness of breath caused by his chronic asthma, he "felt bad all the time." AR 125. Walking a block left him breathless. AR 125. He was unable to lift or carry anything. AR 126. He could drive his manual car for about 15 minutes. AR 126. Tasks that used to be easy made him feel bad. AR 127. Cold and dirt made him cough; even the bed covers hurt. AR 127. He slept about five hours daily, but his asthma disturbed his sleep. AR 127. His medications included an albuterol inhaler, prednisone tablets, and an Advair inhaler. AR 127.

Adult disability report. Plaintiff reported that he could not speak, read, write, or understand English. AR 128. His preferred language was Spanish. AR 128.

Plaintiff was first bothered by breathing problems on April 1, 2001. AR 129. He became unable to work on October 30, 2005. Walking and even speaking caused shortness of breath. AR 129. Symptoms worsened in cold weather. AR 129.

Plaintiff had previously worked ten hours a day picking fruits and vegetables. AR 130. He lifted as many as eighty pounds at a time. AR 130.

Hospital admission (AR 176-238). On April 17, 2006, Plaintiff, who was in respiratory failure, was admitted to Sierra View District Hospital, where he remained until April 25, 2006, initially maintained on a ventilator. Upon admission, Christopher Kolker, M.D., diagnosed pulmonary insufficiency, acute respiratory failure, obstructive chronic bronchitis, acidosis, pneumonia, hypotassemia, and renal and urethral infections. X-rays revealed marked Chronic Obstructive Pulmonary Disease ("COPD").*fn2 Upon discharge, the respiratory failure was resolved, the COPD had improved, the pneumonia remained, and the hypokalemia was resolved.

Emergency room treatment (AR 168-175). On June 4, 2006, Plaintiff was treated in the emergency room of Sierra View District Hospital for breathing pain. The admitting doctor's impression was asthma and COPD. The treating physician prescribed prednisone, an atrovent inhaler, and an albuterol inhaler.

Porterville Health Center (AR 242-246). Multiple doctors and physicians' assistants at Porterville Health Center followed Plaintiff after his April 2006 hospitalization and June 2006 emergency room treatment. The doctors consistently diagnosed COPD. Several noted that Plaintiff had stopped smoking following his hospital admission.

Porterville Family Health Care (AR 250-276, 290-318, 323-341, 343-352, 354-356, 358-361). Reynaldo Garcia, M.D., of Porterville Family Health Care, appears to have been Plaintiff's primary physician. On April 17, 2006, Garcia treated Plaintiff with an albuterol nebulizer and supplementary oxygen after identifying an exacerbation of Plaintiff's asthma during an office examination at which Plaintiff was anxious and gasping for breath. When Plaintiff's breathing did not improve, Garcia sent Plaintiff to Sierra View District Hospital by ambulance.

At a follow-up appointment on April 28, 2006, Garcia noted that Plaintiff was clinically improved from the respiratory failure that had resulted in his hospitalization. His coughing was reduced, although he had a "fine expiratory wheeze." Plaintiff was then tapering from his prednisone (steroid) treatment begun in the hospital and using Advair Discus 250/50 and Atrovent/albuterol inhalation. Garcia recommended that Plaintiff not return to work for two months to allow time for recovery from his hospital admission for COPD. He contemplated that Plaintiff might be able to return to work part time after recovery.

When Plaintiff saw Garcia on September 5, 2006, he was using only albuterol inhalation and was experiencing breathing problems, particularly at night. Garcia noted reduced air entry in both lung fields. Garcia gave Plaintiff a sample Advair/Diskus 100/50 to use once or twice a day.

Plaintiff's breathing was better at his appointment on November 28, 2006. Plaintiff's COPD was stable at his appointments with Garcia on January 17, and March 12, 2007.

Following Plaintiff's April 13, 2007 appointment, Garcia noted that Plaintiff's condition had recently worsened, and he had run out of medication. Plaintiff was experiencing shortness of breath, a fever, and nasal congestion. His chest and lungs were tight with fine wheezing. Although Plaintiff was able to purchase sudafed and albuterol, Garcia provided him with sufficient samples of Advair Diskus 250/50 to last until his next appointment.

On June 15, 2007, Garcia assessed Plaintiff as "doing well." Garcia noted that, because Plaintiff could not afford his prescriptions, he was giving Plaintiff sample medications. Because the clinic did not then have any samples of Advair, Garcia substituted QVAR and Proventil.

On August 14, 2007, Garcia noted that Plaintiff's asthma was "moderately persistent." Because Plaintiff's breathing and coughing dramatically improved with medication, Garcia continued to give Plaintiff sample medications.

In a letter written "To Whom It May Concern," dated October 2, 2007, Garcia wrote: Antonio Ibarra, DOB:12/09/1955, is my patient in Family Healthcare Network in Porterville, California. He has uncontrolled asthma/chronic obstructive pulmonary disease. He is dependent on sample medications to control his symptoms, due to financial constraints. ...


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