Launie J. Dempster v. Michael J. Astrue, No. 5:2007cv00503 - Document 17 (C.D. Cal. 2008)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. The Court hereby REVERSES the Agencys decision and REMANDS the case for further proceedings consistent with this Memorandum Opinion and Order. IT IS SO ORDERED.(see attached order for further details) (es)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 LAUNIE J. DEMPSTER, Plaintiff, 11 12 13 v. 14 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 07-503-PJW MEMORANDUM OPINION AND ORDER 16 17 Plaintiff brings this action, challenging a decision by Defendant 18 Social Security Administration (the Agency ), denying her application 19 for Supplemental Security Income and Disability Insurance Benefits. 20 She asks the Court to reverse the Agency s decision and award 21 benefits, or, in the alternative, to remand the case for further 22 proceedings. 23 is REVERSED and the case is REMANDED for further proceedings. 24 For the reasons discussed below, the Agency s decision Plaintiff claims that the Administrative Law Judge ( ALJ ) erred 25 when he failed to consider the testimony of lay witness Cynthia 26 Johnson, Plaintiff s roommate. 27 filled out and submitted a form in which she described various 28 problems Plaintiff had coping with everyday life. (Joint Stip. at 17-19.) Ms. Johnson (Administrative 1 Record ( AR ) 81-90.) 2 irresponsible, forgetful, and could not keep commitments because she 3 could not remember or was easily distracted. 4 further described Plaintiff as someone who failed to maintain her own 5 hygiene. 6 two or more personalities. 7 Plaintiff s mental impairments precluded her from understanding and 8 following instructions, completing tasks, and getting along with 9 others. 10 (AR 82-83.) According to Ms. Johnson, Plaintiff was (AR 81.) Ms. Johnson Ms. Johnson believed that Plaintiff exhibited (AR 85.) She also thought that (AR 87.) The Agency concedes that the ALJ failed to address this 11 testimony, but argues that the testimony was incompetent and of 12 dubious evidentiary value. 13 view, because this evidence was questionable, at best, the ALJ was not 14 required to even discuss it. 15 (Joint Stip. at 20.) In Defendant s (Joint Stip. at 17-20.) Defendant s argument is not supported by the law or the facts. 16 First, from a legal perspective, testimony from someone in a position 17 to observe a claimant s symptoms and daily activities is competent 18 evidence. 19 (quoting Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)); see 20 also Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) ( Lay testimony 21 as to a claimant's symptoms is competent evidence that an ALJ must 22 take into account, unless he or she expressly determines to disregard 23 such testimony and gives reasons germane to each witness for doing 24 so. (citations omitted )). 25 determining whether a claimant can work. 26 Social Security Administration, 454 F.3d 1050, 1053 (9th Cir. 2006); 27 Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); 20 C.F.R. 28 § 416.913(d)(4). See Smith v. Bowen, 849 F.2d 1222, 1226 (9th Cir. 1988) An ALJ must consider this testimony in 2 Stout v. Commissioner, 1 Second, as to the facts, the government s contention that Ms. 2 Johnson s testimony did not relate to Plaintiff s ability to work is 3 simply wrong. 4 Plaintiff s ability to work, i.e., Plaintiff s ability to remember, 5 concentrate, complete tasks, follow instructions, etc. 6 Ms. Johnson s testimony went to the heart of Defendant argues in the alternative that, even if this testimony 7 was relevant and the ALJ should have considered it, any error was 8 harmless because the testimony was inconsequential to the ultimate 9 determination of disability. 10 (Joint Stip. at 22.) Again, the Court disagrees. 11 An error is harmless if it is inconsequential to the ultimate 12 nondisability determination. 13 it to be inconsequential, the Court must be able to confidently 14 conclude that no reasonable ALJ, when fully crediting the testimony, 15 could have reached a different disability determination. 16 1056. 17 Stout, 454 F.3d at 1055. The Court cannot so conclude here. In order for Id. at Had the ALJ credited Ms. 18 Johnson s testimony, he would have likely concluded that Plaintiff was 19 disabled. 20 is not harmless error. 21 For that reason, the ALJ s failure to discuss the testimony On remand the ALJ should address it. Next, Plaintiff claims that the ALJ erred when he failed to 22 address the Global Assessment of Functioning, or GAF, scores in the 23 medical record. 24 Plaintiff s third claim, that the ALJ erred when he failed to conclude 25 that Plaintiff s mental impairment was severe. 26 13.) 27 remand. (Joint Stip. at 4.) Somewhat tied to this claim is (Joint Stip. at 12- As explained below, these issues, too, should be addressed on 28 3 1 GAF scores are a tool used by mental health professionals to 2 quantify in a single measure a patient s overall level of functioning. 3 Diagnostic and Statistical Manual of Mental Disorders, Fourth Ed., 4 Text Revision ( DSM-IV-TR ) at 32. 5 providers assessed Plaintiff s GAF during the course of her treatment 6 and consistently reported it in the 50-60 range. 7 216, 224, 226, 228.) 8 [m]oderate symptoms ... or moderate difficulty in social, 9 occupational, or school functioning .... 10 Plaintiff s mental health (AR 120, 208-09, This range corresponds with someone who exhibits DSM-IV-TR at 34. As a general rule, an ALJ is not required to rely on GAF scores 11 in formulating his decision. 12 276 F.3d 235, 241 (6th Cir. 2002). 13 probative of a claimant s mental health on a given day and should at 14 least be acknowledged by the ALJ. 15 WL 4224952, *5 (W.D. Olka. 2008) ( [I]t was error for the 16 administrative law judge to not at least address the GAF scores and 17 explain why they were not relevant. ) 18 this case because some of the GAF scores were from Plaintiff s 19 treating psychiatrist William Lawrence. 20 ALJ failed to mention this doctor and did not discuss the significance 21 of his findings, including the GAF scores. 22 was compounded by the fact that the consulting examining psychiatrist, 23 who concluded that Plaintiff did not have a severe mental impairment, 24 and who the ALJ relied on in reaching his decision that Plaintiff was 25 not disabled, did not have Dr. Lawrence s records and, therefore, did 26 not consider them in formulating his opinion. See Howard v. Comm r of Social Security, But, arguably, GAF scores can be See, e.g., Hacker v. Astrue, 2008 This seems particularly true in (AR 216, 224, 226, 228.) (AR 13.) The This oversight (AR 165.) 27 Were Plaintiff s sole complaint that the ALJ failed to discuss 28 the GAF scores, the Court would not send the matter back to the ALJ 4 1 for reconsideration of this issue. But, because the ALJ also failed 2 to consider the treating psychiatrist s records, which included GAF 3 scores, and, further, because the ALJ will be called upon to address 4 the lay testimony, the Court will remand on this issue as well. 5 remand, the ALJ should address the relevance, if any, of the GAF 6 scores, specifically, and Dr. Lawrence s records, generally, in 7 determining whether Plaintiff has a severe mental impairment. 8 need not (but may) address any GAF scores assessed by social workers, 9 (AR 208), as they are not acceptable medical sources under the 10 regulations and, thus, are not entitled to deference. 11 On The ALJ § 416.913(a). 12 See 20 C.F.R. Finally, Plaintiff, who is 5'-6" tall and weighs about 200 13 pounds, argues that the ALJ erred when he failed to consider the 14 impact of her obesity on her ability to work. 15 On this issue, the Court sides with Defendant. 16 the issue of obesity in her application, the reports she filled out 17 and submitted to the Agency in support of her application, or in her 18 testimony before the ALJ. 19 Further, a fair reading of the record suggests that Plaintiff s weight 20 had no impact on her ability to work. 21 the Agency in November 2004 that she walked five hours a day. 22 77.) 23 appropriate box any physical or mental limitations caused by her 24 impairments, Plaintiff did not check any physical limitations, except 25 talking. 26 completed a similar form. 27 consulting doctor revealed that Plaintiff had no physical impairments. 28 (AR 153-57.) (Joint Stip. at 7-10.) Plaintiff never raised (AR 73-80, 93-99, 107-14, 234-59.) Plaintiff, for example, told (AR When asked on the same form to indicate by checking the (AR 78.) Nor did her roommate, Ms. Johnson, when she (AR 87.) 5 A physical examination by a 1 If Plaintiff believed that her weight interfered with her ability 2 to work, she should have said so. She should not expect the ALJ to 3 take it upon himself to tell her at the administrative hearing that he 4 thinks that she is obese and ask her how her obesity impacts her 5 ability to work. 6 in the record that her weight interfered with her ability to work; 7 where she never raised the issue; and where she was represented by 8 counsel at the hearing, who also did not raise the issue during the 9 hearing. This is particularly true where there is no evidence See, e.g., Sanchez v. Secretary of Health and Human 10 Services, 812 F.2d 509, 511-12 (9th Cir. 1987) (denying request for 11 remand to address impairment overlooked by ALJ even though some 12 evidence of it existed in the record where claimant, represented by 13 counsel, failed to raise impairment in administrative hearing, where 14 impairment was not significantly at issue at the hearing, and where 15 claimant offered no explanation for his failure to press the claim at 16 or before the hearing). 17 her obesity was a contributing factor to her inability to work, she 18 should say so and give the Agency a chance to address the issue. 19 On remand, if Plaintiff wants to claim that For the foregoing reasons, the Court hereby REVERSES the Agency s 20 decision and REMANDS the case for further proceedings consistent with 21 this Memorandum Opinion and Order. 22 IT IS SO ORDERED. 23 DATED: September 23, 2008. 24 25 26 27 28 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE S:\PJW\Cases-Soc Sec\DEMPSTER, L 503\Memo and Opinion.wpd 6
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