Meek v. Astrue

Filing 22

ORDER AND OPINION the Commissioner's final decision to deny disability benefits beginning April 1, 2006 is VACATED and this case is REMANDED for further proceedings consistent with this opinion. The Clerk shall enter judgment accordingly and shall terminate this case. Signed by Judge John W Sedwick on 11/8/10. (LSP)

Meek v. Astrue

Doc. 22

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Richard Lee Meek has appealed the Commissioner of Social Security's final decision to deny him disability benefits as of April 1, 2006. The Court will vacate in part and remand for further proceedings. I. Standard of Review ) ) ) Plaintiff, ) ) vs. ) ) Michael J. Astrue, Commissioner of the) ) Social Security Administration, ) ) Defendant. ) ) Richard Lee Meek, No. CV 10-0348-PHX-NVW ORDER AND OPINION IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

The Court will uphold the Commissioner's final decision if it is supported by substantial evidence and not based on legal error. See 42 U.S.C. § 405(g); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir.1996). The substantial evidence standard requires the evidence, as a whole, to be "more than a mere scintilla but not necessarily a preponderance" and otherwise sufficient such that "a reasonable mind might accept [the evidence] as adequate to support a conclusion." Tomassetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir.2008) (internal quotation marks omitted).

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The Court will review only the issues raised by the party challenging the ALJ's decision. See Lewis v. Apfel, 235 F.3d 503, 517 n.13 (9th Cir.2001). The ALJ's decision will be upheld where the "evidence is susceptible to more than one rational interpretation" and the ALJ's decision is supported by one such rational interpretation. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The court will not reverse for harmless error, which exists "when it is clear from the record that the ALJ's error was inconsequential to the ultimate nondisability determination." Tomassetti, 533 F.3d at 1038 (internal quotation marks omitted). II. Facts A. Meek's Hearing

Meek suffers from a number of medical conditions. Three are relevant to this appeal: (1) HIV, (2) hepatitis C, and (3) neuropathy in his legs and feet. Meek claims that the HIV and hepatitis C combine to make him very tired, and the neuropathy limits his mobility. Meek therefore filed an application for supplemental security income in March 2005. When the state disability agency decided that he was not disabled, Meek asked for and received a hearing with an administrative law judge (ALJ) in November 2007. Meek and Meek's attorney attended the hearing in person. A medical expert called by the ALJ, Dr. Joselyn Bailey, attended by telephone. At the beginning of the hearing, Meek informed the ALJ that he had previously worked in various types of jobs, including telemarketing, but he did not currently have a job. The ALJ then asked Meek, "What do you feel is our work [sic] medical problem?" Meek answered, "My worst medical problem is the fatigue associated with the HIV and hepatitis C." (Tr. 468.) A little later in the hearing, the ALJ followed up, "Now, you said your major problem is what, fatigue?" Meek responded, "Fatigue and the neuropathy is." (Id. at 471.) Meek described the neuropathy as sometimes creating "burning, tingling, numbness" sensations. "Sometimes it feels as if I'm walking on broken bones in my feet." (Id.) The ALJ then inquired: Q. Now, the fatigue, how does this affect you? -2-

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A. It breaks up the biggest part of my day. I can't go very long without having to lay down and rest. Q. How long does that -- A. In -- how long in? Q. In an average day. A. In an average day, an average eight-hour day? Q. Yes. A. About three to four hours. Q. You have to rest, lay down and rest? A. Yes, sir. (Id. at 471­72.) After a brief discussion of other topics not relevant here, the ALJ gave Meek's attorney a chance to question his client, to which the attorney responded, "Actually, Judge, I think the claimant's talked about the main fatigue -- the main symptoms of fatigue and the neuropathy, and that's really what this case is about." (Id. at 472­73.) The attorney nonetheless asked Meek a few questions about rashes resulting from a weakened immune system, but clarified, "And to be fair about it, just so that we narrow the issues here, although you've got the ongoing fatigue and neuropathy, the skin rashes themselves have cleared up, correct?" To this, Meek replied, "Yes, sir, they have." (Id. at 473.) The ALJ then questioned Dr. Bailey about whether Meek's conditions met or equaled a listed disability. Dr. Bailey stated nearly every condition and symptom Meek had ever reported, recounted Meek's positive response to HIV drugs, and eventually concluded that she "just [did]n't see anything" that added up to a listed disability. (See id. at 474­78.) The ALJ then focused on Meek's specific complaint: "If we consider them together, if we combined the effects of the HIV and hepatitis C, do they in combination meet or equal a listing?" "There is no listing for it," Dr. Bailey replied, "but he certainly would be restricted in his activities because any liver disease [such as hepatitis C] tends to be accompanied by -3-

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fatigue. And I had asked the experts why that is and nobody has any real answer, but anybody with liver disease, that's their main complaint of fatigue and his was today, in addition to the neuropathy . . . ." (Id. at 478.) When asked by the ALJ about physical restrictions for someone like Meek, Dr. Bailey offered, "Well, due to the fatigue, that would preclude sitting more than six hours a day, preclude more than -- and plus the neuropathy would be precluding standing for any more than one hour at a time up to three or four hours in a day . . . ." (Id.) After discussing various other occupational restrictions, the ALJ returned to the question of Meek's fatigue, asking Dr. Bailey for her "opinion as to what type of nature, length and frequency of the breaks someone [like Meek] would have to take?" Dr. Bailey answered: Well, of course, taking a three-hour rest, I think that's what I heard him say, wouldn't go along with any job, but the fatigue may not be totally due to the liver, hepatitis problem. It was also mentioned [in Meek's medical records] that he had this anxiety and depression [in August 2006]. And when people are depressed or anxious, they often get tired. So you have a multifactorial reason for the tiredness. I can't say that people who complain about fatigue do that much resting during the day. But in his case, if that were true, that would certainly interfere with any kind of work that he might want to do. (Id. at 480­81.) The ALJ excused Dr. Bailey after this exchange and gave Meek's attorney a chance for closing statement. In that closing statement, Meek's attorney emphasized, "The doctor did several things. She acknowledged that fatigue, which is obviously the symptoms [sic] we're dealing with here, can be associated with the medically determinable impairments that she testified about. That's the positive hepatitis C virus and more importantly, the positive HIV virus . . . ." (Id. at 482.) The final clause of this sentence, regarding HIV, appears to have been an overstatement. The Court can find no testimony from Dr. Bailey linking fatigue to HIV, as opposed to hepatitis C.

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B.

The ALJ's Decision

Three months after the hearing, the ALJ issued his decision. The ALJ concluded that Meek's HIV, hepatitis C, and neuropathy combined to disable him from September 1, 2004 to April 1, 2006. That part of the ALJ's decision is not at issue here. The ALJ went on to find that, beginning April 1, 2006, "the functional limitations resulting from the claimant's impairments are less serious than he has alleged." (Id. at 22.) In support of this statement, the ALJ discussed Meek's HIV, noting that it responded well to drugs and that secondary infections had been treated. The ALJ also discussed Meek's "foot, leg and back pain" -- perhaps a reference to his neuropathy -- but focused only on the back pain and a "lumbar spine disorder," neither of which came up at the hearing. The ALJ also covered conditions that the hearing addressed only in passing, such as pulmonary nodules and anxiety/depression. (Id.) And the ALJ addressed side effects from Meek's medications, an issue that was not part of the hearing. (Id.) Concerning Meek's hepatitis C and resulting fatigue -- the repeatedly emphasized main symptom of which Meek complained -- the ALJ's review of the evidence contains only the following: (1) "Joyce L. Richards, D.O., a gastroenterologist, examined the claimant on June 25, 2007, and diagnosed hepatitis C and HIV infection. The claimant's only complaint on that date was lack of energy"; and (2) "[Dr. Bailey] indicated that given [Meek's] fatigue and peripheral neuropathy, the claimant would have some functional limitations." (Id.) The ALJ nowhere mentioned Meek's testimony about the need for long naps each day, presumably finding it not credible, or Dr. Bailey's testimony that liver diseases such as hepatitis C commonly manifest themselves through fatigue. The ALJ ultimately concluded, "After reviewing the overall record, the undersigned finds the allegations of the claimant are not wholly credible with regard to the severity and extent of his limitations beginning April 1, 2006." (Id. at 24.) The ALJ then found that Meek could continue to do certain kinds of work, such as the telemarketing he had done before. (Id. at 26.) The ALJ therefore denied disability benefits as of April 1, 2006, and the

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Social Security Appeals Council chose not to review that decision. Meek has timely appealed to this Court. III. Analysis A. The ALJ's No-Credibility Finding

Whether the ALJ decided Meek's case correctly depends on whether the ALJ properly discredited Meek's testimony about the severity of his symptoms. Meek testified about two particular symptoms: fatigue supposedly resulting from his HIV and hepatitis C, and pain resulting from his neuropathy. Meek's arguments to this Court focus on the fatigue symptom, and so the Court will likewise address only that issue. "[A] claimant who alleges disability based on subjective symptoms" such as fatigue "need not produce objective medical evidence of the pain or fatigue itself, or the severity thereof." Smolen v. Chater, 80 F.3d 1273, 1281­82 (9th Cir. 1996). Instead, he must (a) "produce objective medical evidence of an impairment or impairments" and (b) "show that the impairment or combination of impairments could reasonably be expected to (not that it did in fact) produce some degree of [the subjective] symptom." Smolen v. Chater, 80 F.3d 1273, 1281­82 (9th Cir. 1996). Thus, in this case, Meek need not have presented medical evidence of the severity of his fatigue, but only evidence of a medical condition likely to cause fatigue. Meek satisfied these requirements. Dr. Bailey testified, "[A]ny liver disease [such as hepatitis C] tends to be accompanied by fatigue. . . . [N]obody has any real answer [why that is], but anybody with liver disease, that's their main complaint of fatigue." Thus, Meek established that he had at least one "impairment" -- hepatitis C -- that causes fatigue. Meek also testified that such fatigue forces him to take naps of up to four hours daily. Given this, the ALJ could not reject Meek's testimony about the need for naps without "mak[ing] specific findings stating clear and convincing reasons for doing so. The ALJ [was required to] state specifically which symptom testimony is not credible and what facts in the record lead to that conclusion." Smolen, 80 F.3d at 1284 (citation omitted); see also Morgan v. Comm'r of SSA, 169 F.3d 595, 599 (9th Cir. 1999) ("The ALJ must specifically identify -6-

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what testimony is credible and what testimony undermines the claimant's complaints."). The ALJ could derive such credibility conclusions from, for example, (1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities. Smolen, 80 F.3d at 1284. The ALJ did not state clear and convincing reasons for rejecting Meek's testimony. At the hearing, every participant (including the ALJ) repeatedly acknowledged that Meek's fatigue was the primary reason he could not perform substantial gainful activity. The ALJ's order, by contrast, never mentions this testimony. Rather, the ALJ focused entirely on other conditions and symptoms. This does not meet the standard of "specific findings stating clear and convincing reasons" or "stat[ing] specifically which symptom testimony is not credible and what facts in the record lead to that conclusion." Smolen, 80 F.3d at 1284. The Commissioner nonetheless argues that other portions of the ALJ's opinion demonstrate why the ALJ rejected Meek's symptom testimony. For example, the

Government sees a no-credibility finding implicit in "the ALJ's . . . detailed and extensive analysis of the medical improvement of Plaintiff's impairments." (Doc. 15 at 17.) See also Morgan, 169 F.3d at 599­600 (objective medical improvement can undermine credibility of subjective symptom testimony). But implicit findings are, by nature, not "specific." Indeed, "even if the ALJ had given facially legitimate reasons for his partial adverse credibility finding, the complete lack of meaningful explanation gives this court nothing with which to assess its legitimacy. . . . [W]e cannot affirm [a credibility] determination unless it is supported by specific findings and reasoning." Robbins v. SSA, 466 F.3d 880, 884­85 (9th Cir. 2006).

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In any event, for medical improvement to undermine Meek's credibility, the ALJ must find "medical improvement [that] relate[s] to [Meek's] ability to work." 20 C.F.R.

§ 416.994(b). In Meek's case, then, such medical improvement must relate to his alleged fatigue. But the ALJ's medical improvement analysis said nothing about improvement in fatigue or in the condition that apparently causes it, hepatitis C. The ALJ's decision does point out that Meek had yet to begin treatment for hepatitis C (Tr. 21, 23), and the Commissioner argues that this permissibly evinces lack of credibility. The ALJ may consider infrequency or lack of treatment when evaluating credibility of subjective symptom testimony, see Tommasetti, 533 F.3d at 1039­40, but on this record, there is no evidence that Meek avoided treatment for his hepatitis C. The only relevant evidence brought to the Court's attention is (1) a letter from one of Meek's treating doctors to another, stating that the doctor wanted to monitor Meek's HIV condition further before starting hepatitis C interferon treatment (Tr. 189), and (2) a treatment record from another doctor stating that the plan was to "review all labs[,] then likely start [hepatitis C treatment]" (id. at 457). Such evidence does not support a finding that Meek avoided hepatitis C treatment, and regardless, the ALJ did not state or even suggest that Meek's lack of hepatitis C treatment undermined his credibility. The Commissioner also argues that supposed inconsistencies between Meek's testimony and medical documents support the ALJ's credibility finding. The ALJ never discussed inconsistencies, but the Commissioner believes an inconsistency lies dormant in the assertion that Meek never told any of his physicians that he needed a three- or four-hour daily nap. The Court sees no inconsistency here. The record contains at least fourteen instances between January 2006 and October 2007 in which a doctor's records list "fatigue" as one of Meek's symptoms. (Tr. 166, 168, 170, 174, 367, 383, 399, 420, 421, 423, 444, 446, 447, 450.) The Commissioner infers that the lack of a specific reference to the length of Meek's naps is evidence that Meek never talked to a doctor about it. But given the number of times that "fatigue" appears on Meek's medical records, the Commissioner's inference is not permissible in this case, nor is it an inference that the ALJ actually made. -8-

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"[A] reviewing court should not be forced to speculate as to the grounds for an adjudicator's rejection of a claimant's allegations of disabling [symptoms]." Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (en banc). Nonetheless, in the Court's review of the record, the only statement that cast doubt on Meek's truthfulness -- a statement the ALJ's decision never mentions -- was Dr. Bailey's opinion, "I can't say that people who complain about fatigue do that much resting during the day." In theory, a doctor's disbelief can support a no-credibility finding. Batson v. Comm'r of SSA, 359 F.3d 1190, 1196­97 (9th Cir. 2004) (two doctors' disbelief, combined with contradictions in claimant's testimony and lack of objective medical evidence was enough to discredit claimant's pain testimony). But in this case, Dr. Bailey's statement could not carry the ALJ that far, especially not on its own. It is too vague, perhaps expressing surprise or lack of experience as much as doubt. In sum, the ALJ faced expert medical testimony that hepatitis C causes fatigue, and testimony from Meek that he suffered substantial fatigue. In such circumstances, case law required the ALJ to decide whether he believed Meek's testimony. If he did not believe Meek's testimony, he needed to explain himself with clear, convincing, and specific reasons. In this case, the ALJ addressed only his reasons for believing that Meek's other conditions do not disable him. Accordingly, the ALJ's decision is not supported by substantial evidence, and this Court will vacate it. B. Meek's "Credit-as-True" Request

Meek argues that this Court should apply the credit-as-true rule, or in other words, order the ALJ to credit Meek's fatigue testimony and remand for calculation of benefits. But credit-as-true applies only "where there are no outstanding issues that must be resolved before a proper disability determination can be made, and where it is clear from the administrative record that the ALJ would be required to award benefits if the claimant's [subjective symptom] testimony were credited." Varney v. Sec'y of HHS, 859 F.2d 1396, 1401 (9th Cir. 1988). That is not this case. Even if the Court ordered the ALJ to credit Meek's fatigue testimony, the ALJ would still need to go through the ensuing steps in the disability determination process. The ALJ would need to determine, for instance, if Meek's -9-

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symptoms, including the excessive fatigue, equal or exceed a listed impairment; and if not, whether Meek retains residual functional capacity despite his fatigue. Meek argues that Dr. Bailey's statement, "taking a three-hour rest . . . wouldn't go along with any job" (Tr. 480), conclusively establishes no residual functional capacity. But Dr. Bailey testified as a medical expert, not a vocational expert. The Court notes that fourhour daily nap may still be compatible with part-time work, and part-time work may qualify as "substantial gainful activity." 20 C.F.R. § 404.1572(a) ("work may be substantial even if it is done on a part-time basis"). IV. Order

For the reasons set out above, the Commissioner's final decision to deny disability benefits beginning April 1, 2006 is VACATED and this case is REMANDED for further proceedings consistent with this opinion. The Clerk shall enter judgment accordingly and shall terminate this case. DATED this 8th day of November 2010.

/s/ JOHN W. SEDWICK UNITED STATES DISTRICT JUDGE

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