Regennitter v. Commissioner of the Social Security Administration

166 F.3d 1294, 99 Cal. Daily Op. Serv. 1400, 99 Daily Journal DAR 1781, 1999 U.S. App. LEXIS 2775
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 24, 1999
DocketNo. 98-35004
StatusPublished
Cited by6 cases

This text of 166 F.3d 1294 (Regennitter v. Commissioner of the Social Security Administration) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Regennitter v. Commissioner of the Social Security Administration, 166 F.3d 1294, 99 Cal. Daily Op. Serv. 1400, 99 Daily Journal DAR 1781, 1999 U.S. App. LEXIS 2775 (9th Cir. 1999).

Opinion

DAVID R. THOMPSON, Circuit Judge:

Daniel Regennitter (“Regennitter”) appeals the district court’s order affirming the Commissioner of the Social Security Administration’s (the “Commissioner’s”) denial of his claims for Disability Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., and Supplemental Security Income under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. In denying Regennit-ter’s claims, the Administrative Law Judge (ALJ) rejected Regennitter’s testimony, his mother’s testimony, and an examining psychologist’s opinion. Although the ALJ provided what appear to be facially appropriate reasons for his disbelief of this evidence, we conclude that the ALJ’s reasons are not supported by substantial evidence in the record. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse.

Regennitter’s Testimony

Regennitter’s troubles began in 1988 when, while working at a construction site, an 8-by-12-by-20-foot beam fell on his head and rolled onto his shoulder. In 1990, just as he was beginning to recover from back, neck, and shoulder injuries, Regennitter suffered an accidental gunshot wound to his right leg. He testified about his resulting limitations at two hearings, the second of which occurred after his ease was remanded for the exploration of his mental condition. At both hearings, Regennitter complained of severe daily headaches; constant pain in his neck, shoulder, and back; occasional crying spells; and almost daily, half-hour-long panic attacks. He estimated that he can stand and walk for a total of two hours each day and sit for a total of three or four hours per day. The vocational expert called by the Commissioner at Regennitter’s second hearing testified that an individual who suffered from Regennit-ter’s alleged limitations would be unable to work.

Because Regennitter produced medical evidence of underlying impairments consistent with his complaints and there is no affirmative evidence that he is malingering, the ALJ’s reasons for rejecting Regennitter’s testimony must be clear and convincing. Lester v. Chater, 81 F.3d 821, 834 (9th Cir.1995). The ALJ posed multiple reasons for rejecting Regennitter’s testimony. These reasons, however, are not supported by substantial evidence in the record.

The ALJ asserted that Regennitter’s complaints are inconsistent with the lack of treatment he has received in recent years. Regennitter received regular treatment, however, until his insurance coverage ran out, and he still saw treating doctors five times and examining doctors four times in the next two years. In total, Regennitter received treatment on thirty-two occasions during the five years prior to his second ■hearing (1988-93). Particularly because none of the many physicians Regennitter has seen has suggested effective treatment for his pain, the amount of medical treatment Regennitter has received is not necessarily inconsistent with his complaints.

Further, the record corroborates Regen-nitter’s uncontested explanation for not seeking more treatment: he could not afford it. Regennitter had no income for many years [1297]*1297prior to his hearings, and he has incurred thousands of dollars of debt. Although we have held that “an unexplained, or inadequately explained, failure to seek treatment ... can cast doubt on the sincerity of [a] claimant’s pain testimony,” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989), we have proscribed the rejection of a claimant’s complaints for lack of treatment when the record establishes that the claimant could not afford it, Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir.1996).1 Cf. Gamble v. Chater, 68 F.3d 319, 322 (9th Cir.1995) (“ ‘It flies in the face of the patent purposes of the Social Security Act to deny benefits to someone because he is too poor to obtain medical treatment that may help him.’ ”) (quoting Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir.1984)).

Similarly, because Regennitter established that he can rarely afford prescription medication, the ALJ, in rejecting his testimony, improperly relied on the ground that he “has not required strong analgesic medication ... in recent years.” See Smolen, 80 F.3d at 1284 (holding that because a claimant testified that “she had no insurance and could not afford treatment,” her failure to take medication for her symptoms “is not a clear and convincing reason for discrediting her symptom testimony.”) Moreover, the record repeatedly documents that Regennitter compensates for his inability to take prescription medication by overdosing on large quantities of over-the-counter pain medication.

Two other reasons cited by the ALJ for discounting Regennitter’s testimony are, respectively, irrelevant and inaccurate. The ALJ noted that Regennitter’s treating physician had released him to return to light duty after his neck and back injury. This release, however, is not relevant to Regennitter’s ability to work after the gunshot wound to his leg and the manifestation of his mental illness. The ALJ also noted that Regennit-ter “admitted to significant walking activity with his daughter.” This is an inaccurate characterization of the evidence. When Re-gennitter was asked the maximum distance he could walk, he said that he could walk very slowly with his four-year-old daughter for one and one-half blocks if he rested in the middle. This testimony is consistent with both Regennitter’s other testimony and his alleged disability. See Fair, 885 F.2d at 603 (“The Social Security Act does not require that claimants be utterly incapacitated to be eligible for benefits, ... and many home activities are not easily transferable to what may be the more grueling environment of the workplace ...”) (citations omitted).

The ALJ also determined that Regennit-ter’s complaints are “inconsistent with clinical observations.” This determination could satisfy the requirement of a clear and convincing reason for discrediting a claimant’s testimony, except that the ALJ did not specify what complaints are contradicted by what clinical observations. See Lester, 81 F.3d at 834 (“General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant’s complaints.”). The ALJ noted that Dr. Steven Glusman, an orthopedic specialist who examined Regennitter for the Commissioner, found in Regennitter no “severe objective neurological or orthopedic deficit,” but Dr. Glusman did not opine that this was inconsistent with Regennitter’s complaints. In fact, Dr. Glusman found that Regennitter suffered from chronic headaches and chronic back, neck, shoulder, and leg pain. Moreover, Dr. R.J. Grondel, a neurol[1298]

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166 F.3d 1294, 99 Cal. Daily Op. Serv. 1400, 99 Daily Journal DAR 1781, 1999 U.S. App. LEXIS 2775, Counsel Stack Legal Research, https://law.counselstack.com/opinion/regennitter-v-commissioner-of-the-social-security-administration-ca9-1999.