Luz Vasquez v. Jo Anne B Barnhart

Case 5:04-cv-00537-PJW Document 13 Filed 08/01/05 Page 1 of 31 Page ID #:11 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CAL...

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Case 5:04-cv-00537-PJW Document 13 Filed 08/01/05 Page 1 of 31 Page ID #:11

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UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10 11 12 13 14 15

LUZ VASQUEZ,

) ) Plaintiff, ) ) v. ) ) JO ANNE B. BARNHART, Commissioner ) of the Social Security ) Administration, ) ) Defendant. ) )

No. ED CV 04-537-PJW MEMORANDUM OPINION AND ORDER

16 I. 17 INTRODUCTION 18 Plaintiff brings this action pursuant to 42 U.S.C. §§ 405(g) and 19 1383(c)(3), seeking reversal of the decision by Defendant Social 20 Security Administration (“Agency”) denying Supplemental Security 21 Income (“SSI”) benefits.

Alternatively, she asks the Court to remand

22 the case to the Agency for further proceedings.

For the reasons

23 discussed below, the Agency’s decision is REVERSED and the case is 24 REMANDED for further proceedings. 25 26 27 28

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1

II.

2

BACKGROUND

3

Plaintiff was born on June 27, 1964, and was 38 years-old at the

4

time of the relevant administrative hearing.

5

has an eighth-grade education and past relevant work as an assembler.

6

(AR 333, 338, 498.)

7

(AR 25, 319, 498.)

She

Plaintiff filed her first application for SSI on June 29, 1993;

8

upon determining that her asthma was disabling, the Agency paid her

9

SSI from July 1993 to April 1999.

(AR 24.)

After a continuing

10

disability review, however, the Agency concluded that Plaintiff was no

11

longer disabled and terminated her SSI effective April 30, 1999.

12

24.)

13

law judge (“ALJ”) Mason D. Harrell, Jr., affirmed the Agency’s finding

14

of non-disability.

15

She appealed that decision but, on June 15, 2000, administrative

(AR 266-73.)

Plaintiff filed the current application for SSI benefits on

16

November 1, 2000.

17

June 23, 1993, because of asthma and a lower back impairment.

18

332.)

19

reconsideration, she timely requested a hearing before an ALJ.

20

23.)

21

(AR 319-22.)

In it she alleged disability since (AR 24,

After Plaintiff’s claim was denied initially and on (AR

On March 18, 2003, ALJ Samuel A. Durso held an administrative

22

hearing.

23

534.)

24

vocational expert.

25

(AR

Plaintiff appeared with counsel and testified.

(AR 493-

The ALJ also heard testimony from Ms. Sandra Fioretti, a (AR 534.)

Plaintiff testified that she was raised in Puerto Rico, and that

26

she reads and writes only Spanish.

(AR 498.)

27

had been employed as an assembly worker and an order filler at various

28

sites from March 2000 until September 2001, with each job lasting from 2

She explained that she

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a few weeks to four months.

2

she could no longer perform this kind of work, however, because of her

3

asthma, which caused shortness of breath and insomnia.

4

Plaintiff testified that she used to smoke, but claimed that she had

5

kicked her half-pack-a-day cigarette habit in early 2003.

6

533-34.)

7

pain, it did not cause her insomnia and she did not take any

8

medication for this pain.

9

(See AR 499-509.)

Plaintiff stated that

(See AR 510.)

(See AR

She added that, although she also suffered from low back

(AR 525.)

Additionally, Plaintiff described her recent history of treatment

10

for symptoms of asthma, both during scheduled appointments and at

11

emergency rooms.

12

Prednizone, Singulair, Advair, Proventil, and Benadryl, all of which

13

helped alleviate her symptoms without causing side-effects.

14

18.)

15

she also had a nebulizer machine at home that she used to assist her

16

when she had more severe attacks; on average, she used the nebulizer

17

twice weekly.

18

approximately three hours every day resting quietly while recovering

19

from asthma attacks.

20

claimed to be unable to stand for more than an hour at a time, and

21

incapable of lifting more than five to ten pounds.

22

Although Plaintiff admitted that her asthma would not preclude her

23

from sedentary work, she claimed that her back pain prevented her from

24

sitting longer than an hour at a time and precluded her from bending

25

at the waist.

She added, however, that she had no difficulty kneeling

26

or squatting.

(AR 526-28.)

27 28

(AR 510-13.)

Doctors prescribed Plaintiff

(AR 513-

Plaintiff used her inhalers approximately four times per day;

(AR 518-22.)

She testified that she spent

(AR 523-25.)

Because of her asthma, Plaintiff

Plaintiff also described her daily activities.

(AR 526-27.)

(AR 528-34.)

On

a typical day, Plaintiff would get up in the morning, lay out clothing 3

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for her three children, cook them breakfast, drive them to school, and

2

return home to make the beds, wash dishes, launder a few loads of

3

clothes, watch television for two or three hours, help her children

4

with their homework when they came home from school, and begin

5

preparing dinner.

6

other day at the grocery store, although sometimes her daughter or a

7

neighbor would accompany her to load the groceries into the cart and

8

the car.

9

daily or every other day for up to an hour at a time.

10

(AR 528-32.)

(AR 532.)

She also would spend an hour every

Plaintiff stated that she visited a neighbor (AR 533.)

Vocational Expert Sandra Fioretti also testified.

(See AR 534-

11

52.)

12

assembler would be classified as “laborer storage” under the

13

Dictionary of Occupational Titles (“DOT”), an unskilled position

14

performed at the light- to medium-level of exertion.

15

The ALJ then asked her whether a woman of Plaintiff’s age, education,

16

and language capabilities would be capable of returning to that job if

17

she was limited to light work and “need[ed] to avoid concentrated

18

exposure to extreme cold or extreme heat, as well as fumes, odors,

19

dust, poor ventilation and gases.”

20

person with these limitations could not perform Plaintiff’s former

21

employment.

22

limitations could perform other jobs--including those of fast food

23

worker, assembler of hospital products, and cashier--all of which

24

existed in significant numbers in the local economy.1

She stated that Plaintiff’s four-month-long job as a cable box

(AR 536.)

(AR 535-36.)

(AR 534-35.)

She testified that a

She added, however, that a person with these

(AR 536.)

The

25 26 27 28

1

The vocational expert made clear that her estimate of the number of fast food jobs available assumed that Plaintiff’s need to avoid exposure to fumes and smoke would confine her to the front counter, and excluded cooking positions within the fast-food category. (AR 541-42.) 4

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vocational expert also added that, even if this hypothetical person

2

were limited to sedentary work, a significant number of sedentary

3

assembly jobs existed locally.

4

however, that if Plaintiff’s claimed sit/stand limitations were

5

credited, the number of sedentary assembly jobs available would be

6

eroded by 75%.

7

claimed nebulizer usage and her recent frequent absences from work to

8

obtain medical care were fully credited and extrapolated into the

9

future, these additional limitations would “eliminate 90 percent, if

(AR 543-44.)

She acknowledged,

She also stated that, if Plaintiff’s

10

not all, jobs.”

11

account of her limitations were found fully credible, then she could

12

not perform other work.

13

(AR 551-52.)

(AR 536-37.)

She also opined that if Plaintiff’s

(AR 537-38.)

On April 24, 2003, the ALJ issued a decision analyzing

14

Plaintiff’s claims under the Agency’s five-step sequential evaluation

15

process.

16

Plaintiff’s alleged onset date of June 23, 1993 already had been

17

adjudicated in ALJ Harrell’s decision denying benefits, that prior

18

decision was res judicata and would not be reopened.

19

Accordingly, the ALJ only assessed Plaintiff’s claim of disability as

20

of June 16, 2000--the day after the date of ALJ Harrell’s decision--

21

forward.2

22

(AR 23-23.)

At the outset, the ALJ noted that, insofar as

(AR 24-25.)

(See AR 25.)

At step one, the ALJ found that Plaintiff had “not engaged in

23

substantial gainful activity since June 16, 2000.”

(AR 31.)

At step

24

two, the ALJ found that Plaintiff’s impairments--including asthma and

25

a back impairment--were, taken in combination, “severe” within the

26 27 28

2

As the Agency points out, Plaintiff has not challenged the ALJ’s refusal to revisit the Agency’s determination that she was not disabled before June 16, 2000. (See Cross-Motion at 3 n.1.) 5

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meaning of the regulations.

(See AR 25.)

At step three, however, the

2

ALJ found that these impairments did not meet or equal a listing.

3

(See AR 28.)

4

residual functional capacity to perform “at least a sedentary level of

5

work activity.”3

6

for rejecting as “not credible” Plaintiff’s subjective complaints and

7

her claims relating to her limitations.

8

vocational expert’s testimony, the ALJ found Plaintiff unable to

9

resume any of her past relevant work.

The ALJ then determined that Plaintiff retained the

(See AR 28.)

The ALJ offered ten separate reasons

(AR 29.)

(AR 29.)

In light of the

At step five,

10

however, he determined that Plaintiff’s residual functional capacity

11

left her fit for other jobs--specifically, sedentary assembly work--

12

and noted that 12,000 such jobs existed in the local economy.

13

30.)

14

as defined in the Social Security Act (the “Act”) at any time through

15

the date of the decision.

16

(AR

Accordingly, the ALJ concluded that Plaintiff was not disabled

(AR 30.)

Plaintiff timely requested review of the ALJ’s decision.

(AR

17

19.)

18

and the decision of the ALJ became the final decision of the Agency.

19

(AR 8-10.)

On April 5, 2004, however, the Appeals Council denied review,

20

III.

21

STANDARD OF REVIEW

22

“Disability” under the applicable statute is defined as the

23

inability to perform any substantial gainful activity because of “any

24

medically determinable physical or mental impairment which can be

25

expected to result in death or which has lasted or can be expected to

26 27 28

3

Because Plaintiff raises a specific challenge to the ALJ’s determination of her residual functional capacity, (see Motion at 6), the particulars of that assessment are set below. 6

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last for a continuous period of not less than twelve months.”

42

2

U.S.C. § 1382c(a)(3)(A).

3

that a claimant is not disabled only if the decision is not supported

4

by substantial evidence or is based on legal error.

5

Bowen, 881 F.2d 747, 750 (9th Cir. 1989).

The Court may overturn the ALJ’s decision

See Magallanes v.

6

Substantial evidence “‘means such relevant evidence as a

7

reasonable mind might accept as adequate to support a conclusion.’”

8

Richardson v. Perales, 402 U.S. 389, 401 (1971)(quoting Consol. Edison

9

Co. v. NLRB, 305 U.S. 197, 229 (1938).)

It is “more than a mere

10

scintilla but less than a preponderance,” Tidwell v. Apfel, 161 F.3d

11

599, 601 (9th Cir. 1998), and “does not mean a large or considerable

12

amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988).

13

“The Court must uphold the ALJ’s conclusion even if the evidence

14

in the record is susceptible to more than one rational

15

interpretation.”

16

599 (9th Cir. 1999).

17

support either affirming or reversing the Agency’s decision, this

18

Court must not substitute its judgment for that of the ALJ.

19

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

20

committed error but the error was harmless, reversal is not required.

21

See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th

22

Cir. 2003)(applying the harmless error standard).

Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, Indeed, if the record evidence can reasonably

23

IV.

24

DISCUSSION

25

See

If the ALJ

Plaintiff claims that the ALJ erred by (1) finding that her

26

asthma was not sufficiently severe to meet or equal Listing 3.03B at

27

step three of the sequential process; by (2) failing to offer proper

28

reasons for finding Plaintiff’s subjective symptom complaints to be 7

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not credible; and by (3) determining that she retained the residual

2

functional capacity to perform sedentary assembly work at step five of

3

the sequential process.4

4

(See Motion at 4-10.)

Each of Plaintiff’s arguments will be addressed in the order

5

stated.

For the reasons set forth below, the Court determines that

6

the matter must be reversed and remanded for further proceedings.

7

A.

The ALJ’s Conclusion That Plaintiff’s Asthma Did Not Meet Or

8

Equal Listing 3.03B

9

Under listing 3.03B, asthmatics are deemed disabled if their

10

pulmonary impairment is sufficiently severe and persistent.

The

11

pertinent regulation provides that an applicant is disabled if she

12

suffers from asthma with:

13

Attacks [. . .] occurring in spite of treatment and

14

requiring physician intervention, occurring once every two

15

months or at least six times a year.

16

hospitalization for longer than 24 hours for control of

17

asthma counts as two attacks, and an evaluation period of at

18

least twelve consecutive months must be used to determine

19

the frequency of attacks.

20 21

Each in-patient

See 20 C.F.R. § 404, Subpart P, App. 1, Section 3.03B. For purposes of Listing 3.03B, “attacks” are defined as

22

“prolonged symptomatic episodes lasting one or more days and requiring

23

intensive treatment, such as intravenous bronchodilator or antibiotic

24 25 26 27 28

4

Although Plaintiff briefs these second and third arguments as though they were part of an overarching challenge to the ALJ’s assessment of her residual functional capacity, (see Motion at 6-10), the Court will address them separately in this Order because they are, in fact, analytically-distinct claims implicating steps three, four, and five of the sequential process. 8

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administration or prolonged inhalation bronchodilator therapy in a

2

hospital, emergency room, or equivalent setting.”

3

§ 404, Subpart P, App. 1, Section 3.00C.

4

satisfies all of the elements of Listing 3.03B, the analysis ends at

5

step three, and she is considered “disabled” for purposes of the Act.

6

See Bowen v. City of New York, 476 U.S. 467, 471 (1986).

7 8 9

See 20 C.F.R.

If a claimant’s condition

In Plaintiff’s case, the ALJ determined that she no longer met the requirements of Listing 3.03B, reasoning: In order for [Plaintiff] to be considered disabled under

10

this listing, she must show emergency room visits averaging

11

at least six times per year.

12

met.

13

in 2000, three emergency room visits in 2001, two visits to

14

the emergency room in 2002, and only two visits so far to

15

the emergency room in 2003.

16

medical office visits, one on January 16, 2003 and the other

17

on January 20, 2003.

18

visits, but rather office visits.

19

emergency room visits or inpatient visits, which count as

20

two.

21

was in 1994.

22

room visits two times per year.

23 24

This requirement is far from

[Plaintiff] had only one visit to the emergency room

[Plaintiff] also had two

However, these were not emergency room The listing requires

However, the last inpatient hospital stay for asthma So [Plaintiff] is only averaging emergency

(AR 28.) Plaintiff faults the ALJ for omitting to count her emergency room

25

visit of December 1, 2001.

26

reflects that Plaintiff visited the emergency room and was discharged

27

approximately four hours after receiving treatment for an asthma

28

attack, (see AR at 411), the regulations assess the severity of a

(See Motion at 5.)

9

Although the record

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1

claimant’s asthma by examining her course of treatment over 12

2

consecutive months.

3

the December 1, 2001 emergency-room visit because it fell outside the

4

period from February 11, 2002 to February 11, 2003: the 12-month span

5

in which Plaintiff logged the most hospital and emergency-room visits

6

for asthma attacks.

7

See Section 3.03B.

The ALJ properly disregarded

Plaintiff also argues that, during two of her hospital visits--on

8

January 16, 2003, and two weeks later, on January 30, 2003--she

9

required treatment for asthma “exacerbations.”

(See Motion at 5.)

10

Had the ALJ counted these two visits as “equivalent” to emergency room

11

visits or hospitalizations, Plaintiff argues that she would have

12

suffered exactly six “attacks” within a 12-month period, as Listing

13

3.03B requires.

14

medical records for these two dates do not document “attacks” within

15

the meaning of Listing 3.00C, but merely reflect Plaintiff’s return

16

for follow-up office visits.

17

(See Motion at 5.)

The Agency counters that the

(See Cross-Motion at 5.)

The Court concludes that the Agency has the better of the two

18

arguments on this issue.

19

treatment records for January 2003 show that these two visits were,

20

indeed, regularly-scheduled follow-up office visits.

21

465.)

22

Courts have declined to count routine office visits as “attacks” for

23

purposes of these Listings.

24

94-2920-VRW, 1996 WL 24764, at *3 (N.D. Cal. Jan. 16, 1996)(refusing

25

to count a claimant’s “routine” office visit as an asthma attack); see

26

also Bomeisl v. Apfel, No. 96 CIV 9718(MBM), 1998 WL 430547, at *5

27

(S.D.N.Y. July 30, 1998)(holding that, although the record showed that

28

the claimant visited the hospital several times in a 12-month period

As the Agency points out, Plaintiff’s

Plaintiff admitted as much at the hearing.

(See AR 463,

(See AR 512-13.)

See Lintz for Robinson v. Shalala, No. C-

10

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1

for treatment for his asthma, his condition did not meet or equal

2

Listing 3.03B where “these visits were brief and there is no evidence

3

that any was prompted by an ‘attack’ as that concept is defined by the

4

regulations” and where “most of [his] hospital visits were for the

5

purpose of renewing prescriptions for his asthma medication”).

6

Additionally, a review of the medical records for those dates

7

provides no support for Plaintiff’s contention that she required

8

“steroid and medical nebulizer treatments for asthma exacerbations”

9

during those visits.

(See Motion at 5.)

Instead, on both occasions

10

Plaintiff’s doctor told her to continue taking her regularly-

11

prescribed medications; during the January 30th visit, Plaintiff also

12

was advised to resume taking Prednisone, which her doctor previously

13

had discontinued.

14

erroneously believed that Listing 3.03B required proof of emergency

15

room visits to establish an “attack,” this error was harmless because

16

--however characterized--Plaintiff’s previously-scheduled visits of

17

January 16 and 30, 2003 did not meet the criteria of Section 3.00C.

18

See Batson, 359 F.3d at 1197.5

19

(See AR 464, 466.)

Thus, although the ALJ

Plaintiff suggests, however, that “the ALJ should not be allowed

20

to disregard [her] use of a breathing nebulizer machine at home.”

21

(See Motion at 9.)

On this score, Plaintiff maintains:

22

Most certainly, if the Plaintiff did not have the nebulizer

23

machine at home, she would be going to the emergency room on

24

a much more frequent basis than is reported in the

25 26 27 28

5

Although the ALJ’s mistaken belief that an asthma “attack” must be evidenced by an emergency-room visit was harmless error, other errors in the decision require remand for further proceedings, as will be explained below. Accordingly, the ALJ will have the opportunity to correct this error in a third decision. 11

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1

Administrative Record.

2

nebulizer machine on a regular and frequent basis, is the

3

Plaintiff capable of staying out of the emergency room.

4 5

Only by using this breathing

(See Motion at 9.) Certainly, a claimant’s home nebulizer usage may diminish her

6

need for emergency room visits or hospitalization.

7

cites no authority for the proposition, some courts have held that

8

asthmatic episodes treatable with a home nebulizer may be considered

9

the equivalent of “attacks” within the meaning of Listing 3.00C.

Although claimant

See

10

Riley v. Barnhart, No. Civ.A. 03-0288, 2004 WL 2423840, at *6-7 (E.D.

11

La. Oct. 28, 2004)(remanding to permit the ALJ to determine whether a

12

claimant’s use of a home nebulizer would satisfy Listings 3.00C and

13

3.03B); Pogozelski v. Barnhart, No. 03 CV 2914(JG), 2004 WL 1146059,

14

at *19 (E.D.N.Y. May 19, 2004)(remanding with orders to reassess an

15

asthmatic claimant’s residual functional capacity where the ALJ had

16

ignored her daily use of a nebulizer and failed to consider that such

17

usage “might have obviated any need for hospitalization”).

18

courts, however, have declined to count a claimant’s home nebulizer

19

usage as though it were the “attack” it forestalled.

20

v. Secretary of Health & Human Servs., 830 F.2d 594, 595 (6th Cir.

21

1987)(holding that the ALJ’s finding of non-disabling asthma condition

22

was supported by substantial evidence where the claimant used a

23

“nebulizer which alleviated his need to receive these treatments at a

24

hospital”); see also Goodenow-Boatsman v. Apfel, No. C-99-4776 VRW,

25

2001 WL 253200, at *3 (N.D. Cal. Feb. 27, 2001)(affirming the ALJ’s

26

finding of non-disability where the claimant “went to an emergency

27

room only several times over two years preceding the hearing when the

28

home nebulizer could not adequately suppress asthma attacks”); 12

Most

See, e.g., Auer

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1

Anderson on behalf of Anderson v. Shalala, No. CV-93-4753, 1994 WL

2

722810, at *2 (E.D.N.Y. June 20, 1994)(affirming the ALJ’s finding of

3

non-disability where the claimant’s use of a home nebulizer obviated

4

the need to visit a hospital or emergency room for acute attacks).

5

This Court agrees with the latter line of authorities, and declines

6

Plaintiff’s invitation to count her home nebulizer usage toward the

7

requisite six “attacks” within a 12-month span.

8

would contravene the spirit of the regulations, which focus on attacks

9

“occurring in spite of treatment and requiring physician

10

intervention.”

11

Any other result

See Listing 3.03B (emphasis added).

In sum, Plaintiff has not demonstrated that her asthma met or

12

equaled Listing 3.03B.

13

steps four and five of the sequential evaluation.

14

Zebley, 493 U.S. 521, 530 (1990)(“For a claimant to show that his

15

impairment matches a listing it must meet all of the specified medical

16

criteria.

17

no matter how severely, does not qualify.”)(emphasis in original).

18

B.

19

That being so, the ALJ properly proceeded to See Sullivan v.

An impairment that manifests only some of those criteria,

The ALJ’s Adverse Credibility Determination Plaintiff next argues that the ALJ erred in evaluating her

20

credibility and subjective symptom complaints.

(See Motion at 6-9.)

21

The Court concludes that the ALJ’s assessment of Plaintiff’s

22

credibility was defective in that it contained no specific finding

23

regarding the credibility of Plaintiff’s claimed need for bi-weekly

24

home nebulizer treatments.

25

offer for his adverse credibility finding were inadequate because they

26

were not linked to any of Plaintiff’s claimed limitations or symptoms.

27

These errors must be corrected on remand.

Additionally, the reasons that the ALJ did

28 13

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1

“Credibility determinations are the province of the ALJ.”

Fair

2

v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989).

3

claimant’s testimony as not credible by specifically identifying the

4

incredible testimony and by identifying the evidence that undermines

5

that testimony.

6

1996)(emphasis added).

7

supports the ALJ’s credibility finding, this Court may not

8

second-guess it.

9

reverse an ALJ’s credibility determination based on contradictory or

See Lester v. Chater, 81 F.3d 821, 834 (9th Cir. As long as substantial evidence in the record

See Morgan, 169 F.3d at 600.

10

ambiguous evidence.

11

1984).

12

An ALJ may reject a

Nor will the Court

See Allen v. Heckler, 749 F.2d 577, 579 (9th Cir.

The Ninth Circuit recognizes that pain testimony is difficult to

13

weigh because “pain is a highly idiosyncratic phenomenon, varying

14

according to the pain threshold and stamina of the individual victim.”

15

Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986).

16

expansively, the circuit has observed:

More

17

Unlike most medical conditions capable of supporting a

18

finding of disability, pain cannot be objectively verified

19

or measured . . . .

20

completely subjective phenomenon.

21

The amount of pain caused by a given physical impairment can

22

vary greatly from individual to individual.

23 24

[T]he very existence of pain is a So is the degree of pain:

Fair, 885 F.2d at 601. The inherent difficulty in evaluating another person’s experience

25

of subjective symptoms has prompted the Ninth Circuit to require the

26

ALJ to undertake a two-step analysis when considering a claimant’s

27

symptom testimony.

28

determine whether the claimant has met her burden of producing

First, the ALJ must examine the evidence to

14

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1

objective medical evidence of an impairment, and of showing that the

2

impairment reasonably could be expected to produce a symptom.

3

Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996).

4

See

In Plaintiff’s case, the ALJ did not acknowledge that Plaintiff’s

5

impairments could cause the symptoms she alleged.

6

explained that “the objective evidence of [Plaintiff’s] medical record

7

does not establish impairments likely to produce disabling pain or

8

other limitations as alleged [. . .].”

9

tempting to interpret this as a finding that Plaintiff’s subjective

(AR 29.)

Instead, the ALJ

Although it is

10

symptom complaints did not satisfy the first Smolen step, such a

11

construction cannot be reconciled with the fact that this particular

12

finding was offered as the tenth of ten substantive reasons why the

13

ALJ believed that Plaintiff’s testimony was not credible.

14

29.)

15

with Smolen is to conclude that he skipped the first Smolen step

16

entirely and jumped directly to the second step: which required the

17

ALJ to assess Plaintiff’s credibility as to the severity of her

18

subjective symptoms.

(See AR 28-

Thus, the only way to reconcile the ALJ’s credibility findings

See Smolen, 80 F.3d at 1282.

19

At the second Smolen step, the claimant must produce medical

20

evidence of an underlying impairment reasonably likely to be the cause

21

of her alleged symptoms, although she is not required to submit

22

medical findings to substantiate the severity of those symptoms.

23

Drouin v. Sullivan, 966 F.2d 1255, 1258 (9th Cir. 1992).

24

ALJ may not reject the claimant’s subjective complaints regarding the

25

extent and severity of her symptoms merely because they cannot be

26

supported by objective medical evidence.

27

F.2d 341, 343 (9th Cir. 1991)(en banc)(citation omitted).

28

claimant’s testimony concerning the severity of her symptoms can only 15

See

Thus, the

See Bunnell v. Sullivan, 947 Rather, a

Case 5:04-cv-00537-PJW Document 13 Filed 08/01/05 Page 16 of 31 Page ID #:26

1

be rejected for specific, clear, and convincing reasons.

2

966 F.2d at 1258; see also Lester, 81 F.3d at 834 (“For the ALJ to

3

reject the claimant’s complaints, [the ALJ] must provide specific,

4

cogent reasons for the disbelief.”)(internal quotation marks and

5

citation omitted).

6

See Drouin,

In Plaintiff’s case, the ALJ enumerated ten distinct reasons for

7

finding her subjective symptom complaints to be not credible to the

8

extent alleged.

9

credibility findings that the ALJ did make below, what is most

(See AR 28-29.)

Although the Court will address the

10

conspicuous is the credibility finding that the ALJ did not make:

11

specifically, nowhere among the ALJ’s ten reasons is there any finding

12

that Plaintiff’s claimed need for bi-weekly home nebulizer treatments

13

was anything other than fully credible.

14

omission alone requires remand.

15

(See AR 28-29.)

This

Courts have recognized that a claimant’s need for home nebulizer

16

treatments may limit her ability to perform other jobs in the national

17

economy.

18

1606459, at *12 (W.D. Va. July 8, 2005)(noting that the expert

19

testified the claimant’s home nebulizer usage would render her

20

unemployable); with Carroll v. Barnhart, 291 F.Supp.2d 783, 796 (N.D.

21

Ill. 2003)(noting vocational expert testimony to the effect that a

22

claimant’s home nebulizer usage would not affect her ability to

23

perform other work).

24

at all, her use of a home nebulizer machine would affect her ability

25

to perform other work.

26

to the ALJ’s very broad hypothetical question, that--if all of

27

Plaintiff’s subjective complaints were found credible--she would be

28

disabled.

Cf. Mullins v. Barnhart, No. Civ.A 2:04CV00082, 2005 WL

In Plaintiff’s case, it is unclear how much, if

The vocational expert did testify, in response

(See AR 537-38.)

To curtail what he viewed as redundant 16

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1

questioning by counsel, the ALJ voiced his assumption that this

2

sweeping hypothetical covered Plaintiff’s use of a nebulizer as well

3

as all of her other claimed limitations, and the vocational expert did

4

not contradict him.6

5

(See AR 544-46.)

Where, as here, there is evidence that an asthmatic claimant’s

6

nebulizer usage may impact her ability to perform other work, the ALJ

7

must offer specific reasons if he considers this particular limitation

8

not to be credible.

9

2005 WL 1036336, at *19 (S.D.N.Y. May 3, 2005)(finding ALJ’s

See Hogue v. Barnhart, No. 03-Civ.-4963(SHS),

10

credibility discussion inadequate where it failed to explain whether

11

the ALJ rejected an asthmatic claimant’s testimony “regarding the need

12

for daily nebulizer treatments”).

13

he finds a claimant’s nebulizer usage to be credible, reversal is

14

necessary.

15

v. Barnhart, No. 04-2197-GTV, 2005 WL 589758, at *9 (E.D. Pa. Mar. 11,

16

2005)(reversing where the ALJ “merely stated that she found [an

17

asthmatic plaintiff’s] claims partially credible, without discerning

18

what was credible, what was not, and why,” and holding that “on

19

remand, the ALJ should offer reasons why she finds that [p]laintiff

20

does not need to use a nebulizer breathing machine on a regular

21

basis”); Wilson v. Commissioner of Social Sec. Admin., No. 03 C 3662,

22

2004 WL 1687086, at *4 (N.D. Ill. July 23, 2004)(noting that, on

23

remand, the claimant’s professed need for multiple daily nebulizer

If an ALJ fails to explain whether

See Hogue, No. 03-Civ.-4963(SHS), at *19; see also Smith

24 6

25 26 27 28

The sloppiness of the hypothetical questions posed at the hearing and the chaotic nature of counsel’s questioning of the vocational expert hopelessly obscured the expert’s ultimate conclusion on the impact that Plaintiff’s nebulizer usage would have on her employability. (See AR 538-51.) As explained below, this defect must be rectified at another hearing with the testimony of a vocational expert. 17

Case 5:04-cv-00537-PJW Document 13 Filed 08/01/05 Page 18 of 31 Page ID #:28

1

treatments “must be either included in the hypothetical questions or

2

the ALJ must provide a more sufficient explanation for her finding

3

that they are incredible claims”).

4

As the above-cited authorities reflect, this omission alone is

5

serious enough to warrant remand to permit the ALJ to reassess

6

Plaintiff’s credibility.

7

offer reveals, however, that each is compromised by a common fatal

8

defect: all are general, and none is tied to any particular claimed

9

limitation or symptom.

A review of the ten reasons that the ALJ did

In regards to credibility, “[g]eneral findings

10

are insufficient; rather, the ALJ must identify what testimony is not

11

credible and what evidence undermines the claimant’s complaints.”

12

Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)(citations

13

omitted).

14

several of the ALJ’s reasons for discounting Plaintiff’s credibility.

15

In light of the teaching of Reddick, the Court addresses

First, the ALJ’s reliance on the fact that Plaintiff continued to

16

smoke in finding her testimony to be incredible is not adequately

17

explained.7

18

could provide a legitimate reason for discounting the credibility of

19

her subjective symptom testimony.

20

253200, at *4 (noting that “Plaintiff’s smoking habit in this case

21

serves as relevant evidence in discrediting [her] testimony by

22

illustrating inconsistencies between [her] own conduct and the

(See AR 29 (reason Two).)

A claimant’s smoking habit

See Goodenow-Boatsman, 2001 WL

23 24 25 26 27 28

7

Also in the context of Plaintiff’s cigarette smoking, the ALJ noted that her credibility was undermined by the fact that she told the examining physician that she kept a small pet at home. (See AR 29.) What Plaintiff actually said was that she had a dog at home, but that she kept it outside to avoid an asthmatic reaction to it. (AR 392.) The fact that Plaintiff’s family kept a pet outdoors has little bearing on her credibility, particularly in light of her testimony that she spends most of her time inside her house. (See AR 528-34.) 18

Case 5:04-cv-00537-PJW Document 13 Filed 08/01/05 Page 19 of 31 Page ID #:29

1

severity of asthma as claimed by [P]laintiff”).

Other federal courts

2

have concurred.

3

WL 2658077, at *5 (N.D. Ill. Oct. 14, 2004)(upholding an ALJ’s adverse

4

credibility determination where “[t]he claimant has asthma but medical

5

records and testimony show she continues to smoke”); Mooney v.

6

Shalala, 889 F.Supp. 27, 32 (D.N.H. 1994)(upholding the ALJ’s

7

reference to an asthmatic claimant’s cigarette smoking in finding that

8

subjective symptom testimony was not credible, stating: that “[t]his

9

type of relevant contradiction in [his] testimony, as to what he can

10

and cannot do, provided ample evidence for the ALJ to determine that

11

[his] subjective complaints, including pain, were not entirely

12

credible.”).

13

at 8), and the record confirms that she did.8

14

that the ALJ articulated no clear connection between Plaintiff’s

15

tobacco addiction and her credibility.

16

for discounting a smoker’s credibility lies in her non-compliance with

17

a prescribed course of treatment–-i.e., her unwillingness to quit

18

smoking as her doctor has ordered.

19

2374 MMC, 2004 WL 329332, at *5 (N.D. Cal. Feb. 18, 2004)(approving

20

the ALJ’s adverse credibility determination based in part on the

See, e.g., Clemons v. Barnhart, No. 03 C 4200, 2004

Plaintiff does not contest that she smoked, (see Motion Rather, the problem is

Usually, the analytical basis

See Saephan v. Barnhart, No. C-02-

21 22 23 24 25 26 27 28

8

The record confirms that Plaintiff was a smoker at least as early as August 2000. (See AR 442). On February 25, 2001, Plaintiff told Dr. Robert Yang, the examining physician, that she was an occasional smoker and that she kept a small dog outdoors at home. (See AR 392.) In October 2001, Plaintiff was prescribed Nicoderm for her tobacco addiction (see AR 443); during an emergency-room visit three weeks later, Plaintiff told Dr. Jonathan Lee that she had quit smoking. (AR 422.) By February 2003, however, the medical records reflect that Plaintiff had resumed smoking. (See AR 467.) At the hearing in March 2003, Plaintiff told the ALJ that she again quit smoking in January or February 2003. (AR 533-34.) 19

Case 5:04-cv-00537-PJW Document 13 Filed 08/01/05 Page 20 of 31 Page ID #:30

1

claimant’s “failure to stop smoking as directed by his treating

2

physician”)(emphasis added); see also Goodenow-Boatsman, 2001 WL

3

253200, at *3 (upholding an ALJ’s adverse credibility determination

4

against an asthmatic claimant who smoked where, “[d]espite repeated

5

recommendations by doctors, plaintiff never stopped smoking”); Leach

6

v. Apfel, No. C-96-4099-CAL,

7

1998)(refusing to disturb an ALJ’s finding that a claimant’s refusal

8

to quit smoking made his subjective symptom testimony less credible

9

where “the ALJ chose to believe the medical records indicating that

10

the doctors considered quitting smoking a way for [the claimant] to

11

treat his condition”); Higgins v. Callahan, 983 F. Supp. 865, 871

12

(E.D. Mo. 1997)(holding that a claimant’s “failure to stop smoking,

13

when some of his impairments are related to his smoking habit, as his

14

physicians recommended, militates against a finding of disability”)

15

(emphasis added).

16

evidence that any of Plaintiff’s doctors ever recommended that she

17

quit smoking.

18

to her credibility insofar as it casts doubt on her asserted

19

sensitivity to--and need to work in an environment free of--airborne

20

irritants.

21

Goodenow-Boatsman, 2001 WL 253200, at *3; Mooney, 889 F.Supp. at 32.

22

But the ALJ did not draw this connection, either.

23

Plaintiff’s credibility on remand, the ALJ must explain which of

24

Plaintiff’s testimony regarding her limitations, subjective

25

complaints, or compliance with treatment is undermined by the fact

26

that she is, or was, a smoker.

27 28

1998 WL 246704, at *3 (N.D. Cal. May 6,

Here, however, the ALJ has not pointed to any

Conceivably, Plaintiff’s smoking also could be relevant

See Mullins, 2005 WL 1606459, at *13; see also

When reassessing

Three of the other reasons the ALJ offered are tangentially grounded in his determination that Plaintiff received conservative 20

Case 5:04-cv-00537-PJW Document 13 Filed 08/01/05 Page 21 of 31 Page ID #:31

1

treatment for her symptoms and “responded well to bronchodilators.”

2

(see AR 29 (reasons Three, Seven, and Nine).)

3

only conservative treatment for her symptoms, without offering any

4

explanation for failing to seek more aggressive treatment, can be

5

considered when evaluating her credibility.

6

60 F.3d 1428, 1434 (9th Cir. 1995); see also Meanel v. Apfel, 172 F.3d

7

1111, 1114 (9th Cir. 1999).

8

question as to whether the treatment Plaintiff received for her

9

asthma--conservative or otherwise--was effective in controlling her

A claimant’s pursuit of

See Johnson v. Shalala,

Here, however, the record raises some

10

symptoms.

(See, e.g., AR 422 (noting that Plaintiff’s Albuterol “has

11

not helped”); AR 464, 466 (noting that Plaintiff’s asthma was “poorly

12

controlled” with medication).)

13

that Plaintiff’s asthma was controllable with bronchodilators with

14

this conflicting evidence.

15

claimant] has seen has suggested effective treatment [. . . ], the

16

amount of medical treatment [the claimant] has received is not

17

necessarily inconsistent with his complaints.”9

18

Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1296 (9th Cir. 1999)

The ALJ did not reconcile his belief

Where “none of the many physicians [a

See Regennitter v.

19 20 21 22 23 24 25 26 27 28

9

At any rate, and as Plaintiff points out, the ALJ appears to have bootstrapped his third and ninth reasons into his step-three finding that her asthma was not severe enough to meet or equal a Listing. (See Motion at 8-9.) The same can be said of the ALJ’s sixth reason, which implies that Plaintiff’s testimony is not credible because the results of a pulmonary function study did not meet or equal Listing 3.02A. (See AR 29.) But a finding that a claimant’s impairment falls short of a Listing is neither dispositive of, nor particularly relevant to, the question whether her limitations are, nevertheless, sufficiently serious--and her subjective symptom complaints, sufficiently credible--to support the conclusion that she is disabled at step five. For that reason, the ALJ should eliminate or explain these three justifications for finding Plaintiff’s subjective symptom testimony not credible, if he re-adopts them in his credibility findings on remand. 21

Case 5:04-cv-00537-PJW Document 13 Filed 08/01/05 Page 22 of 31 Page ID #:32

1

(emphasis added).

2

reason in his post-remand credibility finding, he must explain what

3

evidence he is relying upon in assuming that Plaintiff’s treatment has

4

been conservative; if the ALJ concludes that Plaintiff’s asthma is

5

controlled with conservative treatment, he must reconcile that

6

conclusion with the evidence that her asthma is poorly controlled.

7

If the ALJ wishes to reiterate this particular

The ALJ’s adverse credibility finding also rested, at least in

8

part, on the fact that Plaintiff did not display symptoms during some

9

of her examinations.

(See AR 29 (reasons Four and Five).)

Although

10

the record supports the ALJ’s conclusion that Plaintiff was

11

asymptomatic on February 25, 2001, the day she was examined by Dr.

12

Yang, (see AR 393), this evidence is of little value, especially

13

considering the highly sporadic nature of the symptoms that asthmatics

14

experience.

15

asthma are not representative of the record as a whole, which

16

documents numerous instances when Plaintiff sought medical attention

17

for serious symptoms and attacks.

18

the ALJ’s credibility finding rests upon selective, unrepresentative

19

citations to the record, the finding cannot stand.

20

Massanari, 246 F.3d 1195, 1203-05 (9th Cir. 2001)(reversing an adverse

21

credibility finding and remanding for an award of benefits where the

22

ALJ selectively quoted a doctor’s records out of context).

Moreover, Dr. Yang’s observations about Plaintiff’s

(See AR 458-86.)

Where, as here,

See Holohan v.

23

Finally, the ALJ discounted Plaintiff’s credibility because of

24

the fact that she continued to perform household chores, (see AR 29

25

(reason One)), a fact that Plaintiff admitted at the hearing.

26

528-34.)

27

was not improper.

28

1995)(noting that “[a]n ALJ is clearly allowed to consider the ability

(See

In the abstract, the ALJ’s consideration of this activity See Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir.

22

Case 5:04-cv-00537-PJW Document 13 Filed 08/01/05 Page 23 of 31 Page ID #:33

1

to perform household chores” when assessing a claimant’s degree of

2

limitation); see also Fair, 885 F.2d at 602 (explaining how a

3

claimant’s performance of household chores could impact her

4

credibility).

5

activities “would not be dispositive of her ability to work.”

6

Cross-Motion at 6.)

7

perform household activities only bears on her credibility to the

8

extent that her level of activity is in fact inconsistent with the

9

claimed limitations.

As the Agency concedes, however, Plaintiff’s daily

The Court agrees.

(See

A claimant’s ability to

See Reddick, 157 F.3d at 722.

Here, although

10

the record may or may not contain evidence that Plaintiff “is able to

11

spend a substantial part of [her] day performing household chores or

12

other activities that are transferable to a work setting” or that the

13

level of her activity is in fact inconsistent with her claimed

14

limitations, see Smolen, 80 F.3d at 1284 n.7, the ALJ did not so find,

15

let alone point to any evidence in the record that would support the

16

inference.

17

The ALJ also cited the fact that the objective medical evidence

18

showed only a “moderate obstructive lung defect.” (See AR 29 (reason

19

Seven).)

20

claimant’s subjective complaints incredible because of lack of medical

21

findings to substantiate the severity of her symptoms.

22

966 F.2d at 1258.

23

Plaintiff’s testimony incredible in part because her doctor’s

24

conclusion that she as unable to work was unsupported by clinical

25

findings.

26

findings was a reason to discount the opinion of Plaintiff’s doctor

27

(which the ALJ also did, see AR 27-28), it was not a legitimate reason

28

to determine that Plaintiff’s own testimony was not credible.

Again, at the second Smolen step, the ALJ may not find a

See Drouin,

Additionally, the ALJ stated that he was finding

(See AR 29 (reason Eight).)

23

Although the lack of objective

Case 5:04-cv-00537-PJW Document 13 Filed 08/01/05 Page 24 of 31 Page ID #:34

1

If the ALJ wishes to reiterate this reason for discounting

2

Plaintiff’s credibility in his post-remand decision, he must point to

3

substantial evidence in the record that Plaintiff is more active than

4

her claimed limitations would permit, or that the type and level of

5

her activity is transferrable to a work setting.

6

In sum, reversal and remand is necessary to permit the ALJ to

7

reassess Plaintiff’s credibility.

8

specifically explain whether he finds Plaintiff’s claimed need to use

9

a home nebulizer to be credible, a finding he failed to make in the

On remand, the ALJ must

10

last decision.

11

findings that he did make, specifically identifying any of Plaintiff’s

12

claimed limitations or symptoms that he finds to be incredible and

13

stating with particularity why he disbelieves them.

14

F.3d at 722.

15

C.

Additionally, the ALJ must revisit the credibility

See Reddick, 157

The ALJ’s Determination That Plaintiff Retained The Residual

16

Functional Capacity To Perform Other Jobs

17

Finally, Plaintiff contends that the ALJ erred in reaching the

18

step-five conclusion that she retained the residual functional

19

capacity to perform other jobs in the local economy.

20

In light of the foregoing discussion of the ALJ’s analysis of

21

Plaintiff’s credibility, the Court concludes that, on remand, the ALJ

22

must reassess Plaintiff’s residual functional capacity at step four,

23

and revisit his step-five finding that Plaintiff can perform other

24

work.

25

(See AR 6, 10.)

A claimant’s residual functional capacity reflects what she can

26

still do despite her physical, mental, nonexertional, and other

27

limitations.

28

claimant’s “residual functional capacity and the physical and mental

See 20 C.F.R. § 404.1545.

24

The Agency examines a

Case 5:04-cv-00537-PJW Document 13 Filed 08/01/05 Page 25 of 31 Page ID #:35

1

demands” of her past relevant work at step four of the sequential

2

process.

3

249 F.3d 840, 844-45 (9th Cir. 2001).

4

“function-by-function” analysis of a claimant’s capacity to work

5

according to exertional categories.

6

must include the individual’s functional limitations or restrictions

7

and assess her work-related abilities on a function-by-function basis,

8

including the functions in paragraphs (b), (c), and (d) of 20 C.F.R.

9

§§ 404.1545 and 416.945.

See 20 C.F.R. § 404.1520(e); see also Pinto v. Massanari, This assessment entails a

The residual functional capacity

In determining a claimant’s residual

10

functional capacity, the ALJ must consider the limiting effects of all

11

of her impairments, even those that were not severe.

12

§ 404.1545(e); see also SSR 96-8p at 5.

13

express the claimant’s residual functional capacity in terms of

14

exertional levels of work: sedentary, light, medium, heavy, and very

15

heavy.

16

capacity is assessed at step four, the ALJ must make the requisite

17

factual findings to support his assessment.

18

See SSR 96-8p.

20 C.F.R.

Only after that may the ALJ

Although a claimant’s residual functional

See SSR 82-62.

It bears emphasis that an ALJ’s “[h]ypothetical questions posed

19

to the vocational expert must set out all the limitations and

20

restrictions of the particular claimant . . . .”

21

F.2d 418, 422 (9th Cir. 1988)(emphasis in original); see also Thomas,

22

278 F.3d at 956 (cautioning that, “[i]n order for the testimony of a

23

vocational expert to be considered reliable, the hypothetical posed

24

must include all of the claimant’s functional limitations, both

25

physical and mental[,] supported by the record”)(citation and internal

26

quotation marks omitted).

27

poses to the vocational expert “does not reflect all the claimant’s

28

limitations, . . . [then] the expert’s testimony has no evidentiary

Embrey v. Bowen, 849

If the hypothetical question that the ALJ

25

Case 5:04-cv-00537-PJW Document 13 Filed 08/01/05 Page 26 of 31 Page ID #:36

1

value to support a finding that the claimant can perform jobs in the

2

national economy.”

3

1990).

4

DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir.

In his decision, the ALJ concluded that Plaintiff could do

5

sedentary assembly work.

6

of Plaintiff’s residual functional capacity was as follows:

(See AR 31.)

The ALJ’s specific assessment

7

[Plaintiff] can lift up to ten pounds at a time and she can

8

occasionally lift and carry articles like docket files,

9

ledgers, and small tools.

[Plaintiff] can stand/and or walk

10

approximately two hours in an eight-hour workday and sit

11

approximately six hours in an eight-hour workday.

12

[Plaintiff] would also need to avoid pulmonary irritants,

13

such as fumes, odors, dusts, gases, poor ventilation, etc.

14

(See AR 28.)

15

Plaintiff faults the ALJ for “fail[ing] to discuss any of [her]

16

testimony [. . .] regarding her use of a breathing nebulizer machine

17

at her home for minor exacerbations which occur on a frequent basis.”

18

(See Motion at 9.)

19

capacity assessment is there any mention of the uncontroverted

20

evidence that Plaintiff requires twice-weekly use of her home

21

nebulizer machine to forestall asthma attacks.

22

522.)

23

proceedings on remand.

24

need to use a nebulizer machine outside of a hospital setting is a

25

potentially-significant limitation that may reduce the number of jobs

26

available to her.

27

(recounting vocational expert testimony to the effect that an

28

asthmatic claimant “who had to use a nebulizer at work generally could

Indeed, nowhere in the ALJ’s residual functional

(Compare AR 28 with AR

The Court concludes that this omission will require further As noted previously, an asthmatic claimant’s

Compare Mullins, 2005 WL 1606459, at *12

26

Case 5:04-cv-00537-PJW Document 13 Filed 08/01/05 Page 27 of 31 Page ID #:37

1

not perform any jobs”) with Carroll, 291 F.Supp.2d at 796 (affirming

2

the ALJ’s finding of non-disability where the vocational expert

3

testified that the claimant’s limitations, including her need for

4

nebulizer treatments, would not preclude employment).

5

cited conflict in the district court authorities suggests, however,

6

the impact a claimant’s nebulizer usage will have on her employability

7

turns on factual circumstances best left to a vocational expert.

8 9

As the above-

Where the ALJ omits a claimant’s home nebulizer usage from his hypothetical question to the vocational expert, remand is appropriate.

10

See Eback v. Chater, 94 F.3d 410, 411-12 (8th Cir. 1996)(reversing an

11

ALJ’s step-five finding of non-disability where the ALJ assumed that

12

an asthmatic claimant could use her nebulizer during breaks without

13

including this assumption in his hypothetical question to the

14

vocational expert); see also Smith, 2005 WL 589758, at *9 (remanding

15

for further proceedings where the ALJ failed to include several of an

16

asthmatic claimant’s physical limitations in her hypothetical

17

questions to the vocational expert, including her need for a home

18

nebulizer); Wilson, 2004 WL 1687086, at *4 (remanding where the ALJ

19

did not include the claimant’s “stated need for multiple daily

20

nebulizer treatments” in his hypothetical question to the vocational

21

expert); Neely v. Apfel, No. 99 C 4132, 2000 WL 1285427, at *6 (N.D.

22

Ill. Sept. 11, 2000)(remanding for further proceedings where the ALJ’s

23

finding that an asthmatic claimant “would be able to administer the

24

[nebulizer] treatments in a manner that would not interfere with her

25

performance of work-related activities” was made without the benefit

26

of the testimony of a vocational expert and had “no support in the

27

record”).

28

cut.

In Plaintiff’s case, however, the situation is not clear-

As explained above, Plaintiff attested to the various 27

Case 5:04-cv-00537-PJW Document 13 Filed 08/01/05 Page 28 of 31 Page ID #:38

1

limitations her asthma causes, including her need to use a nebulizer

2

at home.

3

instructed the vocational expert to assume that all of Plaintiff’s

4

claimed limitations were found “fully believable,” (see AR 537-38),

5

and the ALJ later stated that this assumption included, among many

6

other things, Plaintiff’s claimed nebulizer use.

7

(See AR 522.)

One of the ALJ’s hypothetical questions

(AR 545.)

A more searching review of the record convinces the Court,

8

however, that the vocational expert was confused as to what a

9

“nebulizer” is.

Counsel appears to have described the apparatus as

10

“something that is plugged into the wall and that [Plaintiff] then has

11

to administer,” and added that a nebulizer “take[s] longer than [the]

12

seconds that it takes to use an inhaler.”

13

several interruptions by the ALJ, (see AR 542, 545-51), the vocational

14

expert opined that Plaintiff would require “[e]xtra breaks when using

15

the nebulizer and I’m not sure how long that takes, other than I know

16

it’s leaving the worksite.”

17

emphasized portion suggests, the vocational expert testified that she

18

was speculating regarding Plaintiff’s nebulizer usage.

19

ALJ’s cue to clarify the hypothetical question, elicit additional

20

testimony from Plaintiff, or both: yet he did neither.

21

circumstances, reversal for further proceedings is proper.

22

DeLorme, 924 F.2d at 850 (remanding “when the vocational expert

23

described confusion over” the content of a hypothetical question and

24

“the ALJ did not clarify the hypothetical”); see also Burnett v.

25

Barnhart, No. 02-C-8462, 2004 WL 1093271, at *10 (N.D. Ill. May 6,

26

2004)(remanding where the ALJ’s decision was based in part on “the

27

testimony of a confused medical expert”).

28

vocational expert assumed that using such a device necessarily would

(See AR 544-45.)

(AR 551-52 (emphasis added).)

28

After

As the

This was the

In these See

And to the extent that the

Case 5:04-cv-00537-PJW Document 13 Filed 08/01/05 Page 29 of 31 Page ID #:39

1

involve “leaving the worksite,” she injected an assumption into the

2

hypothetical question that was not supported by the evidence.

3

Magallanes, 881 F.2d at 756 (holding that a vocational expert’s

4

testimony on a claimant’s residual functional capacity “has no

5

evidentiary value if the assumptions in the hypothetical are not

6

supported by the record”).

7

See

On remand, the ALJ’s hypothetical questions to the vocational

8

expert must reflect all of Plaintiff’s claimed limitations for which

9

there is substantial evidence in the record.

As the record now

10

stands, there is--in addition to the other limitations the ALJ

11

included in his hypothetical questions to the vocational expert--

12

substantial evidence that Plaintiff required bi-weekly usage of a home

13

nebulizer machine.

14

limitation in a hypothetical question to the vocational expert;

15

changes in the frequency of Plaintiff’s nebulizer usage since the last

16

hearing, if any, should be reflected in separate hypothetical

17

questions.

18

clarification on the nature of a nebulizer--including how it works,

19

how long it takes to use one, and how portable it is–-additional

20

clarification from Plaintiff or even a medical expert may prove

21

helpful.

22

D.

23

(See AR 522.)

The ALJ must include this

To the extent that the vocational expert requires

Remand Is Appropriate The determination whether to remand for further proceedings or

24

for payment of benefits lies within the discretion of the Court.

25

McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989).

26

circumstances in Social Security disability cases, remand is

27

appropriate.

28

2004).

In most

See Moisa v. Barnhart, 367 F.3d 882, 886-87 (9th Cir.

Remand may be productive where additional proceedings can 29

Case 5:04-cv-00537-PJW Document 13 Filed 08/01/05 Page 30 of 31 Page ID #:40

1

remedy defects in the original administrative proceedings.

2

Celaya v. Halter, 332 F.3d 1177, 1184 (9th Cir. 2003).

3

See

In this case, as explained above, the vagueness of the

4

hypothetical questions that the ALJ posed to the vocational expert--

5

along with the confusion caused when the ALJ interrupted counsel

6

during his examination of this witness--make it unclear what impact,

7

if any, the use of a home nebulizer would have on her ability to

8

perform other work.

9

particular limitation in the course of his otherwise-detailed

10 11

Nor did the ALJ explain whether he rejected this

credibility findings. Remand is, therefore, necessary to enable the ALJ to retrace

12

these steps in the sequential process.

13

the ALJ must update the record, retain the services of another

14

vocational expert, and conduct another hearing for the purpose of

15

determining whether Plaintiff can perform other jobs existing in

16

significant numbers in the local economy.

17

must pose hypothetical questions that include all of Plaintiff’s

18

limitations for which there is substantial evidence; at a minimum,

19

such questions must include a characteristic that would account for

20

Plaintiff’s use of a home nebulizer machine.

21

vocational expert requires clarification of any of Plaintiff’s

22

limitations, including her use of a nebulizer, the ALJ must develop

23

the record to provide the expert with sufficient information.

As the foregoing indicates,

At that hearing, the ALJ

To whatever extent the

24

After the hearing, the ALJ must issue a new decision.

25

explained above, the ALJ should correct his erroneous step-three

26

characterization of the requirements of Listing 3.03B.

27

must reassess Plaintiff’s credibility, offering clear and convincing

28

reasons for rejecting her testimony about her subjective symptoms and 30

As

The ALJ also

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1

limitations--including her claimed use of a nebulizer at home--

2

specifically connecting such testimony with the particular evidence

3

that contradicts it.

4

ALJ must then reassess Plaintiff’s residual functional capacity at

5

step four of the sequential process, and redetermine whether she can

6

perform other jobs at step five.

In light of those new credibility findings, the

7

IV.

8

CONCLUSION

9

For the reasons set forth above, this Court finds that the

10

Agency’s findings were not supported by substantial evidence and were

11

not free from material legal error.

12

the decision of the Agency and REMANDS for further proceedings.

Accordingly, the Court REVERSES

13 14

IT IS SO ORDERED.

15

DATED:

August

1

, 2005.

16 /s/ 17 18

PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE

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