Virginia Stackhouse v. Michael J. Astrue, No. 2:2009cv06096 - Document 18 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi. IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision. (bem)
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Virginia Stackhouse v. Michael J. Astrue Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 VIRGINIA STACKHOUSE, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 16 17 Defendant. ) Case No. CV 09-6096 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 19 I. 20 INTRODUCTION AND SUMMARY 21 On August 20, 2009, plaintiff Virginia Stackhouse (“Plaintiff”) filed a 22 complaint against defendant Michael J. Astrue, the Commissioner of the Social 23 Security Administration (“Defendant” or “Commissioner”), seeking review of the 24 denial of disability insurance benefits. [Docket No. 1.] On March 12, 2010, Defendant filed his answer, along with a certified copy of 25 26 the administrative record. [Docket Nos. 8, 9.] On April 14, 2010, this matter was transferred to the calendar of the 27 28 undersigned Magistrate Judge. [Docket No. 10.] Both Plaintiff and Defendant Dockets.Justia.com 1 subsequently consented to proceed for all purposes before the Magistrate Judge 2 pursuant to 28 U.S.C. § 636(c). [Docket Nos. 11, 15.] 3 On May 24, 2010, the parties submitted a detailed, 53-page joint stipulation 4 for the resolution of issues presented in this case. [Docket No. 17.] The Court 5 deems the matter suitable for adjudication without oral argument. 6 In sum, having studied, inter alia, the parties’ joint stipulation and the 7 administrative record, the Court concludes that the Administrative Law Judge 8 (“ALJ”) conspicuously erred in failing to provide a meaningful explanation in 9 discounting the statements of a lay witness. The ALJ’s parsimonious conclusion 10 that “greater weight” was simply afforded to the “documented medical evidence” 11 cannot be reconciled with Ninth Circuit precedent demanding that the ALJ supply 12 “germane reasons.” Accordingly, the Court remands this matter to the 13 Commissioner in accordance with the principles and instructions enunciated in this 14 Memorandum Opinion and Order. 15 II. 16 FACTUAL AND PROCEDURAL BACKGROUND 17 Plaintiff, who was 50 years of age on the date of her administrative hearing, 18 has an eighth grade education. (Administrative Record (“AR”) at 37, 56, 123.) Her 19 past relevant work includes employment as a rehabilitation supervisor, assembly 20 worker, babysitter, housekeeper, and merchandise deliverer. (Id. at 26.) 21 On March 16, 2006, over four years ago, Plaintiff filed for disability insurance 22 benefits (“DIB”), alleging that she has been disabled since January 22, 2005 due to 23 depression and anxiety. (See AR at 123-25, 143.) Plaintiff’s application was denied 24 initially and on reconsideration. (Id. at 67-71, 75-79.) 25 On February 25, 2009, Plaintiff, represented by counsel, appeared and 26 testified at a hearing before an ALJ. (AR at 37, 39-57.) The ALJ also heard 27 testimony from Sharon Spabenta, a vocational expert (“VE”). (Id. at 57-63.) 28 On March 11, 2009, the ALJ denied Plaintiff’s request for benefits. (AR at 2 1 21-28.) Applying the five-step sequential evaluation process – which is discussed 2 below – the ALJ found, at step one, that Plaintiff has not engaged in substantial 3 gainful activity since her alleged onset date of disability. (Id. at 23.) At step two, 4 the ALJ found that Plaintiff suffers from severe impairments consisting of major 5 depressive disorder, not otherwise specified, and anxiety. (Id.) 6 At step three, the ALJ determined that the evidence does not demonstrate that 7 Plaintiff’s impairment, either individually or in combination, meet or medically 8 equal the severity of any listing set forth in the Social Security regulations.1/ (AR at 9 23.) The ALJ then assessed Plaintiff’s residual functional capacity2/ (“RFC”) and 10 11 determined that she can perform “a full range of work at all exertional levels but 12 with the following nonexertional limitations: limited to simple repetitive tasks not 13 requiring more than occasional interaction with the general public; and, no stress/fast 14 paced production standard.” (AR at 24 (emphasis omitted).) Based on Plaintiff’s RFC, the ALJ found, at step four, that Plaintiff lacks the 15 16 ability to perform her past relevant work. (AR at 26.) At step five, based on Plaintiff’s vocational factors and the VE’s testimony, 17 18 the ALJ found that “there are jobs that exist in significant numbers in the national 19 economy that [Plaintiff] can perform,” including “grader/sorter” and “laundry 20 worker.” (AR at 27 (emphasis omitted).) Thus, the ALJ concluded that Plaintiff 21 was not suffering from a disability as defined by the Act. (Id. at 21, 27.) 22 23 24 1/ See 20 C.F.R. pt. 404, subpt. P, app. 1. 2/ Residual functional capacity is what a claimant can still do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 26 n. 5 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant’s 27 residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 n. 2 (9th 28 Cir. 2007). 3 1 Plaintiff filed a timely request for review of the ALJ’s decision, which was 2 denied by the Appeals Council. (AR at 1-3, 7.) The ALJ’s decision stands as the 3 final decision of the Commissioner. 4 III. 5 APPLICABLE LEGAL STANDARDS 6 A. Five-Step Inquiry to Ascertain a Cognizable Disability 7 A claimant must satisfy three fundamental elements to be eligible for 8 disability benefits: (1) a medically-determinable impairment; (2) the impairment 9 prevents the claimant from engaging in substantial gainful activity; and (3) the 10 impairment is expected to result in death or to last for a continuous period of at least 11 12 months. 42 U.S.C. § 423(d)(1)(A); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th 12 Cir. 1999). A well-established five-step sequential inquiry is utilized to assess 13 whether a particular claimant satisfies these three elements. The inquiry proceeds as 14 follows: 15 First, is the claimant engaging in substantial gainful activity? If so, the 16 claimant cannot be considered disabled. 17 Second, does the claimant suffer from a “severe” impairment, to wit, one 18 continuously lasting at least 12 months? If not, the claimant is not disabled. 19 Third, does the claimant’s impairment or combination of impairments meet or 20 equal an impairment specifically identified as a disability by the Commissioner 21 under 20 C.F.R. part 404, subpart P, appendix 1? If so, the claimant is automatically 22 determined to be disabled. 23 Fourth, is the claimant capable of performing his past work? If so, the 24 claimant is not disabled. 25 Fifth, does the claimant have the so-called “residual functional capacity” to 26 perform some other type of work? The critical question posed here is whether the 27 claimant can, in light of the impairment and his or her age, education and work 28 experience, adjust to another form of gainful employment? 4 1 If a claimant is found “disabled” or “not disabled” along any of these steps, 2 there is no need to complete the remaining inquiry. 20 C.F.R. §§ 404.1520(a)(4) & 3 416.920(a)(4); Tackett, 180 F.3d at 1098-99. 4 B. Standard of Review on Appeal 5 This Court is empowered to review decisions by the Commissioner to deny 6 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 7 Administration must be upheld if they are free of legal error and supported by 8 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001, as 9 amended Dec. 21, 2001). If the court, however, determines that the ALJ’s findings 10 are based on legal error or are not supported by substantial evidence in the record, 11 the court may reject the findings and set aside the decision to deny benefits. 12 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 13 242 F.3d 1144, 1147 (9th Cir. 2001). 14 “Substantial evidence is more than a mere scintilla, but less than a 15 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such “relevant 16 evidence which a reasonable person might accept as adequate to support a 17 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d 18 at 459. To determine whether substantial evidence supports the ALJ’s finding, the 19 reviewing court must review the administrative record as a whole, “weighing both 20 the evidence that supports and the evidence that detracts from the ALJ’s 21 conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be affirmed 22 simply by isolating a specific quantum of supporting evidence.’” Aukland, 257 F.3d 23 at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the 24 evidence can reasonably support either affirming or reversing the ALJ’s decision, 25 the reviewing court “‘may not substitute its judgment for that of the ALJ.’” Id. 26 (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 27 28 5 1 IV. 2 ISSUES PRESENTED 3 Five disputed issues are presented for decision here: 4 1. whether the ALJ’s finding on Plaintiff’s RFC is supported by 5 substantial evidence and whether the hypothetical question presented to the VE was 6 incomplete, (see Joint Stip. at 4-15, 20-22); 7 2. whether the ALJ erred in her step three analysis, (id. at 22-24, 26-27); 8 3. whether the ALJ failed to fully and properly develop the record, (id. at 9 27-29, 32-34); 10 4. whether the ALJ improperly rejected the opinions of Plaintiff’s treating 11 physicians, (id. at 34-37, 40-41); and 12 5. whether the ALJ improperly discredited Plaintiff’s credibility and 13 improperly discounted the lay witness’s statements. (Id. at 42-46, 50-52.) 14 Under the circumstances here, the Court finds the issue of the ALJ’s 15 assessment of Plaintiff’s lay witness’s statements to be dispositive of this matter, and 16 declines to substantively address the remaining issues. 17 V. 18 DISCUSSION AND ANALYSIS 19 Plaintiff contends that the ALJ failed to properly assess the lay witness 20 statements of Plaintiff’s friend Michelle Clisby (“Ms. Clisby”). (Joint Stip. at 4521 46.) Plaintiff argues that the ALJ failed “to provide a sufficient credibility analysis 22 of Ms. Clisby’s written statement” and “did not have proper germane bases for 23 rejecting this evidence[.]” (Id. at 46.) Plaintiff also maintains that the ALJ 24 inappropriately rejected Ms. Clisby’s statements on the basis that “her testimony is 25 not supported by the medical evidence in the record.” (Id. at 52.) 26 On the other hand, Defendant argues that the ALJ “did not give great weight 27 to Ms. Clisby’s statements because they were inconsistent with the medical 28 evidence[.]” (Joint Stip. at 50.) 6 1 A. Testimony 2 3 ALJ Must Provide Reasons Germane to Lay Witness to Discount Such “[L]ay testimony as to a claimant’s symptoms or how an impairment affects 4 ability to work is competent evidence and therefore cannot be disregarded without 5 comment.” Stout v. Commissioner, 454 F.3d 1050, 1053 (9th Cir. 2006) (internal 6 quotation marks, ellipses and citation omitted) (italics in original); see Smolen v. 7 Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); see also 20 C.F.R. §§ 404.1513(d)(4) 8 (explaining that Commissioner will consider evidence from “non-medical 9 sources[,]” including “spouses, parents and other caregivers, siblings, other relatives, 10 friends, neighbors, and clergy[,]” in determining how a claimant’s impairments 11 affect his or her ability to work) & 416.913(d)(4) (same). 12 The ALJ may only discount the testimony of lay witnesses if he provides 13 specific “reasons that are germane to each witness.” Dodrill v. Shalala, 12 F.3d 915, 14 919 (9th Cir. 1993); accord Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) (“Lay 15 testimony as to a claimant’s symptoms is competent evidence that an ALJ must take 16 into account, unless he or she expressly determines to disregard such testimony and 17 gives reasons germane to each witness for doing so.”). 18 Finally, “where the ALJ’s error lies in a failure to properly discuss competent 19 lay testimony favorable to the claimant, a reviewing court cannot consider the error 20 harmless unless it can confidently conclude that no reasonable ALJ, when fully 21 crediting the testimony, could have reached a different disability determination.” 22 Stout, 454 F.3d at 1056. 23 B. Third Party Report 24 Here, on May 25, 2006, Ms. Clisby completed a Third Party Function Report 25 on behalf of Plaintiff. (AR at 152-59.) Ms. Clisby reported that Plaintiff cannot “get 26 to sleep until 4 or 5 a.m.” (Id. at 152.) She also stated that Plaintiff cries or “is 27 tearful with a flat affect 70% of her waking hours” and “takes 3 times the amou[n]t 28 of time to do her normal chores.” (Id.) 7 1 Ms. Clisby further explained that, in the past, Plaintiff “could multi task” and 2 “was always well groomed.” (AR at 153.) However, she reported that currently 3 Plaintiff “has to be reminded to change clothing” and is “not as well groomed.” (Id.) 4 5 Ms. Clisby described that Plaintiff is able to perform and complete tasks “if 6 someone stays with her, distrac[t]s her and keeps encouraging her.” (See AR at 7 154.) However, Ms. Clisby explained that “[a]t times the chore is too much for her 8 to hand[le.]” (Id. at 155.) Ms. Clisby also stated that completing some tasks takes 9 “at least 2 to 3 times longer than usual.” (Id. at 154.) 10 Ms. Clisby indicated that Plaintiff “needs prompting” when following written 11 instructions and follows spoken instructions “not well at all.” (AR at 157.) 12 Moreover, Ms. Clisby reported that Plaintiff is “fearful” of changes in routine. (Id. 13 at 158.) 14 C. The ALJ’s Analysis of the Third Party Report 15 With respect to Ms. Clisby’s Third Party Report and the statements therein, 16 the ALJ furnished a six-sentence summary and, then, a one-sentence conclusion, as 17 as follows: 18 In May 2006, Michelle Clisby, [Plaintiff’s] friend, reported that 19 [Plaintiff] is crying or is tearful with a flat affect about 70% of 20 her waking hours. She used to keep her home spotless and cook 21 the family meals, but is no longer able to do so. She goes outside 22 short periods of time each day. [Plaintiff] is able to drive and 23 ride in a car. She used to have many hobbies, but she no longer 24 shows interest. [Plaintiff] is limited in ability to remember, 25 complete tasks, concentrate, understand, follow instructions, and 26 get along with others. The undersigned gives greater weight to 27 the documented medical evidence of record. 28 (AR at 24-25 (citation omitted).) 8 1 2 3 D. The ALJ Failed to Provide Reasons Germane to Lay Witness for Discounting Her Statements While the ALJ summarized Ms. Clisby’s lay witness statements, she failed to 4 give specific, germane reasons for discounting Ms. Clisby’s Third Party Report. 5 This is insufficient. Two reasons govern this dispositive determination. 6 First, the ALJ’s discounting of Ms. Clisby’s statements based on the ALJ’s 7 assignment of “greater weight to the documented evidence of record[]” fails to 8 provide the Court any insight as to the ALJ’s reasons for rejecting her lay witness 9 statements. The Court declines to guess as to the ALJ’s reasoning. See also Robbins 10 v. Soc. Sec. Admin., 466 F.3d 880, 884 n. 2 (9th Cir. 2000) (“[W]ith no reference to 11 the record in this part of the decision, we are left to guess what testimony the ALJ 12 was considering and why he thought it undermined [plaintiff]’s credibility.”). 13 Second, apart from giving “greater weight to the documented medical 14 evidence of record[,]” the ALJ gave no other valid reason for discounting Ms. 15 Clisby’s credibility. See, e.g., Acevedo ex rel. A.A. v. Astrue, 2010 WL 1994661, at 16 *5 (C.D. Cal. 2010) (remand appropriate where ALJ fails to provide a legitimate 17 reason germane to lay witness for discounting her credibility). 18 Given Ms. Clisby’s statements regarding Plaintiff’s ability to complete tasks, 19 among other impairments, the Court cannot confidently conclude that no reasonable 20 ALJ could have reached a different disability determination if the lay witness 21 statements had been fully credited. Stout, 454 F.3d at 1056. 22 Now, Defendant contends that the “ALJ did not give great weight to Ms. 23 Clisby’s statements because they were inconsistent with the medical evidence, 24 including [the examining opinion of psychologist Paul R. Martin, Ph.D. (“Dr. 25 Martin”)].” (See Joint Stip. at 50 (emphasis added); see also AR at 310-14.) While 26 this may have been a germane reason (assuming there was substantial evidence to 27 support the reason) for the ALJ to disregard Ms. Clisby’s statements, the ALJ did 28 not rely on this reason and Defendant’s explanation, generated in hindsight, cannot 9 1 cure this infirmity. (See generally AR at 21-28.) 2 The ALJ simply and only said she afforded “greater weight to the documented 3 medical evidence of record.” (AR at 25.) The Court does not find the ALJ’s 4 assignment of greater weight to the medical evidence as necessarily equivalent to 5 rejecting Ms. Clisby’s statements because of “inconsistency” with the medical 6 evidence. 7 This conclusion is underscored by the fact that, contrary to Defendant’s 8 blanket assertion, portions of Ms. Clisby’s statements, in fact, comport with Dr. 9 Martin’s opinion. (Compare AR at 152-59 with id. at 310-14.) For example, Dr. 10 Martin found Plaintiff to be a “reliable historian” and indicated her reports that “she 11 cries all the time” and “has loss of function in basic activities of daily living.” (Id. at 12 310-11.) Dr. Martin also noted that Plaintiff “is experiencing disruption in both 13 social and occupation functioning due to her psychiatric symptoms.” (Id. at 313.) 14 In any event, the Court’s review is limited to the reasons actually provided by 15 the ALJ in her decision and, in the end, the ALJ did not provide germane reasons. 16 See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“We review only the reasons 17 provided by the ALJ in the disability determination and may not affirm the ALJ on a 18 ground upon which he did not rely.”); Connett v. Barnhart, 340 F.3d 871, 874 (9th 19 Cir. 2003) (“We are constrained to review the reasons the ALJ asserts[ and i]t was 20 error for the district court to affirm the ALJ’s . . . decision based on evidence that the 21 ALJ did not discuss.”) (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)). 22 VI. 23 REMAND IS APPROPRIATE 24 This Court has discretion to remand or reverse and award benefits. McAllister 25 v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989, as amended Oct. 19, 1989). Where no 26 useful purpose would be served by further proceedings, or where the record has been 27 fully developed, it is appropriate to exercise this discretion to direct an immediate 28 award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); 10 1 Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000, as amended May 4, 2000), 2 cert. denied, 531 U.S. 1038 (2000). Where there are outstanding issues that must be 3 resolved before a determination can be made, and it is not clear from the record that 4 the ALJ would be required to find plaintiff disabled if all the evidence were properly 5 evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; Harman, 211 6 F.3d at 1179-80. 7 Here, remand is required because the ALJ erred in failing to properly address 8 the lay witness statements offered by Plaintiff’s friend.3/ On remand, the ALJ shall 9 consider Ms. Clisby’s Third Party Report and, if she decides to reject any or all of 10 her statements, she must provide reason(s) that are germane to Ms. Clisby. In 11 addition, the ALJ shall reassess the medical opinions in the record, such as the 12 opinions of Plaintiff’s treating psychiatrists, and provide sufficient reasons under the 13 applicable legal standard for rejecting any portion of the medical opinions. The ALJ 14 shall then proceed through steps four and five to determine what work, if any, 15 Plaintiff is capable of performing. Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 16 17 REVERSING the decision of the Commissioner denying benefits and 18 REMANDING the matter for further administrative action consistent with this 19 decision. 20 21 Dated: October 5, 2010 22 ____________________________________ Hon. Jay C. Gandhi United States Magistrate Judge 23 24 25 26 3/ In light of the Court’s remand instructions, it is unnecessary for the Court to address Plaintiff’s remaining contentions. (See Joint Stip. at 4-15, 20-22, 22-24, 2628 27, 27-29, 32-34, 34-37, 40-41, 43-45, 50-51.) 27 11
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