Carlos S Miranda v. Michael J Astrue, No. 5:2008cv00462 - Document 16 (C.D. Cal. 2009)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)

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1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 CARLOS S. MIRANDA, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 08-00462-MAN MEMORANDUM OPINION AND ORDER 17 Plaintiff filed a Complaint on April 11, 2008, seeking review of 18 the denial by the Social Security Commissioner ( Commissioner ) of 19 plaintiff s applications for a period of disability ( POD ), disability 20 insurance benefits ( DIB ), and supplemental security income ( SSI ). 21 On 22 undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 23 636(c). The parties filed a Joint Stipulation on December 19, 2008, in 24 which: plaintiff seeks an order reversing the Commissioner s decision 25 and awarding benefits or, in the alternative, remanding the matter for 26 further 27 affirming the Commissioner s decision. The Court has taken the parties 28 Joint Stipulation under submission without oral argument. June 12, 2008, the administrative parties consented proceedings; and to proceed defendant before seeks an the order SUMMARY OF ADMINISTRATIVE PROCEEDINGS 1 2 3 On February 8, 2002, plaintiff filed applications for a POD, DIB, 4 and SSI, alleging an inability to work since December 20, 2000, due to 5 blindness in his left eye and depression. 6 ( A.R. ) 7 experience as a machine operator. 55-57, 219-22, 285.) Plaintiff (Administrative Record has past relevant work (A.R. 15, 286, 505.) 8 9 Plaintiff s claims were denied initially, upon reconsideration, and 10 by Administrative Law Judge F. Keith Varni ( ALJ Varni ) in a written 11 decision dated December 2, 2003. 12 plaintiff filed a request for review of the hearing decision (A.R. 9), 13 and on August 5, 2004, the Appeals Council denied review of the decision 14 (A.R. 4-6). 15 Court in Case No. EDCV 04-1069, which resulted in a Stipulated Order and 16 Judgment of Remand on February 22, 2005. 17 2005, the Appeals Council remanded the case back to ALJ Varni for 18 further administrative proceedings. (A.R. 14-18.) On December 3, 2003, On September 2, 2004, plaintiff filed a Complaint in this (A.R. 341-45.) On April 7, (A.R. 346.) 19 On February 24, 2006, a remand hearing was held before ALJ Varni. 20 21 (A.R. 438-52.) On May 26, 2006, ALJ Varni issued an unfavorable 22 decision. 23 Complaint in this Court in Case No. EDCV 06-821, which resulted in a 24 Stipulated Judgment of Remand on April 4, 2007.1 (A.R. 483-87.) On June (A.R. 242-46.) On August 17, 2006, plaintiff filed another 25 26 27 28 1 Pursuant to the parties stipulation, this Court ordered that, on remand, the ALJ shall: (1) evaluate the opinion of Dr. Villar and provide reasons for the weight assigned to his opinion; (2) evaluate plaintiff s mental impairment pursuant to 20 C.F.R. §§ 404.1520a and 416.920a; (3) evaluate plaintiff s residual functional capacity; and (4) 2 1 9, 2007, the Appeals Council remanded the case to a different 2 Administrative Law Judge for compliance with this Court s Order. 3 480-82.) (A.R. 4 On 5 November 27, 2007, a remand hearing was held before 6 Administrative Law Judge Jay E. Levine ( ALJ ). (A.R. 500-30.) On 7 January 11, 2008, the ALJ denied plaintiff s claims; that decision is 8 now at issue. (A.R. 456-63.) 9 SUMMARY OF ADMINISTRATIVE DECISION 10 11 12 In his written decision, the ALJ found that plaintiff meets the 13 insured status requirements of the Social Security Act through December 14 31, 2007, and has not engaged in substantial gainful activity since 15 December 20, 2000, plaintiff s alleged disability onset date. 16 458.) 17 severe impairments: (A.R. The ALJ further found that plaintiff suffers from the following blindness in the left eye and depression. (Id.) 18 19 The ALJ determined that plaintiff has the residual functional 20 capacity to perform heavy work except no work at unprotected heights or 21 around dangerous unguarded moving machinery or work requiring binocular 22 vision. 23 determined that, although plaintiff was a generally credible witness, 24 plaintiff s 25 limiting effects of [his] symptoms are not entirely credible. There are no mental limitations. statements concerning the (A.R. 460.) intensity, The ALJ also persistence and (A.R. 26 27 28 if necessary, obtain supplemental vocational expert testimony to clarify the effects of the assessed limitations on plaintiff s occupational base. (A.R. 484.) 3 1 461.) In reliance on the opinion of the medical expert, the ALJ gave 2 little weight to the opinion of Romeo D. Villar, M.D., plaintiff s 3 treating physician. (A.R. 461-62.) 4 5 The ALJ determined that plaintiff is unable to perform his past 6 relevant work, but having considered plaintiff s age, education, work 7 experience, 8 testimony from a vocational expert, the ALJ found that jobs exist in 9 significant numbers in the national economy that plaintiff can perform, and residual functional capacity, and in reliance on 10 such as a hand packager, cleaner, and kitchen helper. 11 Accordingly, the ALJ concluded that plaintiff has not been under a 12 disability, as defined in the Social Security Act, since December 30, 13 2000, through the date of his decision. (A.R. 462-63.) (A.R. 463.) 14 15 STANDARD OF REVIEW 16 17 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 18 decision to determine whether it is free from legal error and supported 19 by substantial evidence in the record as a whole. 20 F.3d 625, 630 (9th Cir. 2007). 21 evidence as a reasonable mind might accept as adequate to support a 22 conclusion. 23 a mere scintilla but not necessarily a preponderance. 24 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). 25 record can constitute substantial evidence, only those reasonably 26 drawn from the record will suffice. 27 1063, 1066 (9th Cir. 2006)(citation omitted). Orn v. Astrue, 495 Substantial evidence is such relevant Id. (citation omitted). 28 4 The evidence must be more than Connett v. While inferences from the Widmark v. Barnhart, 454 F.3d 1 Although this Court cannot substitute its discretion for that of 2 the Commissioner, the Court nonetheless must review the record as a 3 whole, weighing both the evidence that supports and the evidence that 4 detracts from the [Commissioner s] conclusion. 5 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 6 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 7 responsible for determining credibility, resolving conflicts in medical 8 testimony, and for resolving ambiguities. 9 1035, 1039-40 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 10 11 The Court will uphold the Commissioner s decision when the evidence 12 is susceptible to more than one rational interpretation. Burch v. 13 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 14 review only the reasons stated by the ALJ in his decision and may not 15 affirm the ALJ on a ground upon which he did not rely. 16 at 630; see also Connett, 340 F.3d at 874. 17 the Commissioner s decision if it is based on harmless error, which 18 exists only when it is clear from the record that an ALJ's error was 19 inconsequential to the ultimate nondisability determination. Robbins 20 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 21 Comm r, 454 F.3d 1050, 1055-56 (9th Cir. 2006)); see also Burch, 400 22 F.3d at 679. However, the Court may Orn, 495 F.3d The Court will not reverse 23 24 DISCUSSION 25 26 Plaintiff alleges the following five issues: (1) whether the ALJ 27 complied with the remand orders requiring him to properly consider Dr. 28 Villar s opinion; (2) whether the ALJ properly considered plaintiff s 5 1 testimony; (3) whether the ALJ considered the lay witness statements; 2 (4) 3 psychiatrist; and (5) whether the ALJ posed a complete hypothetical 4 question to the vocational expert. 5 at 3.) whether the ALJ considered the findings of the State agency (Joint Stipulation ( Joint Stip. ) 6 7 I. The ALJ Failed To Comply With The Remand Orders Directing Proper 8 Consideration Of The Opinion Of Plaintiff s Treating Physician, 9 Romeo D. Villar, M.D. 10 A treating physician s conclusions must be given substantial 11 12 weight. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). Even when 13 the treating physician s opinions are contradicted, if the ALJ wishes 14 to disregard the opinion[s] of the treating physician he . . . must make 15 findings setting forth specific, legitimate reasons for doing so that 16 are based on substantial evidence in the record. 17 F.2d 643, 647 (9th Cir. 1987); see also McAllister v. Sullivan, 888 F.2d 18 599, 602 (9th Cir. 1989)( broad and vague reasons for rejecting the 19 treating physician s opinion do not suffice). 20 burden by setting out a detailed and thorough summary of the facts and 21 conflicting clinical evidence, stating his interpretation thereof, and 22 making findings. 23 1989). Winans v. Bowen, 853 The ALJ can meet this Magallanes v. Brown, 881 F.2d 747, 751 (9th Cir. 24 25 Pursuant to 20 C.F.R. § 416.912(e)(1), the Commissioner will seek 26 additional evidence or clarification from your medical source when the 27 report from your medical source contains a conflict or ambiguity that 28 must be resolved, the report does 6 not contain all the necessary 1 information, or does not appear to be based on medically acceptable 2 clinical and laboratory diagnostic techniques. 3 has a duty to develop the record in appropriate circumstances. 4 Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)( If the ALJ thought 5 he needed to know the basis of the treating physician s opinions in 6 order to evaluate them, he had a duty to conduct an appropriate inquiry, 7 for 8 questions to them. )(citations omitted). 9 that, pursuant to the Commissioner s Regulations, an ALJ is bound to 10 follow the Appeals Council s order and may take any additional action 11 that is not inconsistent with the Appeals Council s remand order. 12 C.F.R. § 416.1477(b). 13 procedures in 20 C.F.R. § 416.1477 should be followed if the Appeals 14 Council returns a court-remanded case to an ALJ). example, by subpoenaing the physicians Thus, the Commissioner or submitting See further Moreover, it is well-settled 20 (See 20 C.F.R. § 416.1483 providing that the 15 16 The Court remanded this case on April 4, 2007, pursuant to a 17 stipulation of the parties, and ordered the ALJ to evaluate the opinion 18 of plaintiff s treating physician, Dr. Villar, and provide reasons for 19 the weight assigned to his opinion. 20 Court s Order, the Appeals Council explicitly stated in its June 9, 2007 21 Order: (A.R. 484.) In effectuating the 22 23 This matter was previously remanded by the U.S. District Court 24 for reevaluation and weighing of the opinion of [plaintiff s] 25 treating physician, Dr. Romeo D. Villar (Exhibits 10F, 11F, 26 14F and 22F). 27 not contain an adequate evaluation of Dr. Villar s opinion. 28 The Administrative Law Judge concluded that [plaintiff] has The [May 26, 2006] hearing decision again does 7 1 the residual functional capacity to perform work with the 2 limitation of monocular vision and the limitation to the 3 performance of only simple, routine, repetitive and non- 4 public tasks (Tr. 245). 5 diagnosed major depression and assessed the claimant with a 6 Global Assessment of Functioning Scale score of 58, which is 7 indicative of moderate symptoms or moderate limitations in 8 functioning (Diagnostic and Statistical Manual of Mental 9 Disorders, Fourth Edition, 1994), and prescribed Zoloft and On July 14, 2003, Dr. Villar 10 Wellbutrin (Tr. 216-217). 11 reported that [plaintiff] was expected to be incapacitated 12 from work until March 31, 2004 (Tr. 218). 13 stated that [plaintiff] had poor concentration and memory (Tr. 14 376, 378), would have difficulty completing tasks (Tr. 378), 15 and that [plaintiff s] depression would interfere with his 16 ability to work (Tr. 378). 17 summarized some portions of Dr. Villar s assessments, but did 18 not address the foregoing aspects of his opinion and did not 19 evaluate or state the weight accorded to Villar s opinion as 20 required 21 Therefore, further evaluation of Dr. Villar s opinion and the 22 claimant s mental impairment is warranted. by 20 CFR On August 12, 2003, Dr. Villar Also, Dr. Villar The Administrative Law Judge 404.1527(d) and 416.927(d). . . . 23 24 (A.R. 480-81.) 25 26 27 The Appeals Council stated further Administrative Law Judge shall: 28 8 that, upon remand, the 1 Give further consideration to the treating source s opinion 2 pursuant to the provisions of 20 CFR 404.1527 and 416.927 and 3 Social Security Rulings 96-2p and 96-5p, and explain the 4 weight given to such opinion evidence. 5 Administrative Law Judge may request the treating source to 6 provide additional evidence and/or further clarification of 7 the 8 [plaintiff] can still do despite the impairments (20 CFR 9 404.1512 and 416.912). opinions and medical source As appropriate, the statements about what The Administrative Law Judge may also 10 enlist the aid and cooperation of [plaintiff s] representative 11 in developing evidence from [plaintiff s] treating source. 12 13 In his subsequent decision, however, the ALJ failed to address with 14 particularity Dr. Villa s assessments in accordance with this Court s 15 April 4, 2007 Order and the Appeals Council s June 9, 2007 Order. 16 entirety of the ALJ s compliance with these remand orders is as 17 follows: 18 19 Addressing the court remand directly, I give little weight to 20 the opinions of [plaintiff s] treating doctors. 21 treated with medications only. 22 that [plaintiff] had only the following limitations: mild 23 limitations in activities of daily living, mild to moderate 24 limitations in social functioning, mild limitations and [sic] 25 concentration, episode of 26 deterioration and the time of his eye injury in 2000. I 27 concur.... The medical expert also testified that [plaintiff] 28 has a reactive persistence depression The medical expert testified and that 9 He has been pace and could be one alleviated by The 1 counseling and therapy. Although [plaintiff] has been 2 somewhat depressed by the loss of his eye seven years ago, he 3 has been treated only with medication and without therapy.... 4 The medical expert testified and I agree that the treating 5 physician s opinion of [plaintiff s] ability to work should be 6 given little credit. 7 and did not perform the mental status examinations, counseling 8 or hospitalization. 9 Capacity Evaluation (Mental) two-page form signed by Ochuko G. All they did was prescribe medication Exhibit 25 [a September 19, 2007 Work 10 Diamreyan, M.D.] is given no weight. As the medical expert 11 testified, there is no evidence that [plaintiff] is extremely 12 limited in every category checked on the form. 13 expert testified that a person who is so limited would not be 14 sitting in the hearing but would be hospitalized because of 15 severe mental problems. The medical I agree.2 16 17 (A.R. 461-62.) 18 19 Although the ALJ stated that he address[ed] the court remand 20 directly, and gave little weight to the opinions of [plaintiff s] 21 treating doctors, the ALJ did not address the various aspects of Dr. 22 Villar s opinion, as required by this Court s Order and explicitly 23 directed by the Appeals Council. 24 Villar s opinion that: (1) as of July 14, 2003, plaintiff suffered from Indeed, the ALJ failed to discuss Dr. 25 2 26 27 28 In rejecting plaintiff s treating physicians opinions, the ALJ did not specifically reject or address with any particularity Dr. Villar s opinion. Instead, the ALJ lumped together the opinions of several of plaintiff s treating physicians. While the ALJ specifically addressed Exhibit 25, and provided reasons for the rejection of it, the author of Exhibit 25 was Dr. Diamreyan, not Dr. Villar. (A.R. 497-98.) 10 1 major depression and was 2 Functioning Scale 3 limitations in 4 incapacitated from work for approximately six months from August 12, 5 2003, through March 31, 2004; (3) and plaintiff had poor concentration 6 and memory, would have difficulty completing tasks, and his depression 7 would interfere with his ability to work. 8 address these particular aspects of Dr. Villar s opinion on remand. score assessed of functioning; 58, with which (2) a is plaintiff Global Assessment indicative was of expected (A.R. 480.) of moderate to be The ALJ must 9 10 Accordingly, remand is required to allow the ALJ the opportunity to 11 provide legally sufficient reasons, if such reasons exist, for rejecting 12 the opinion of Dr. Villar. 13 14 15 II. The ALJ Failed To Provide The Requisite Clear And Convincing Reasons For Rejecting Plaintiff s Subjective Pain Testimony. 16 17 Plaintiff alleges that the ALJ erred in his consideration of 18 plaintiff s subjective symptom testimony. 19 the reasons set forth below, the Court agrees. (Joint Stip. at 8-10.) For 20 21 Once a disability claimant produces objective evidence of an 22 underlying physical impairment that is reasonably likely to be the 23 source of his subjective symptom(s), all subjective testimony as to the 24 severity of the symptoms must be considered. 25 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 26 (9th Cir. 2001)(en banc); see also 20 C.F.R. § 416.929(a)(explaining how 27 pain and other symptoms are evaluated). 28 finding of malingering based on affirmative evidence thereof, he or she 11 Moisa v. Barnhart, 367 [U]nless an ALJ makes a 1 may only find an applicant not credible by making specific findings as 2 to credibility and stating clear and convincing reasons for each." 3 Robbins, 466 F.3d at 883. 4 absence of objective medical evidence supporting the degree of pain 5 alleged as a basis for finding that a plaintiff's testimony regarding 6 subjective symptoms is not credible. 7 601-02 (9th Cir. 1989); Stewart v. Sullivan, 881 F.2d 740, 743-44 (9th 8 Cir. 1989). Further, an ALJ may not rely solely on the Fair v. Bowen, 885 F.2d 597, 9 10 Both in his filings with the Commissioner and in his testimony, 11 plaintiff described various subjective symptoms from which he claims to 12 suffer. 13 for depression and anxiety and is taking medication, including Lomictal, 14 Wellbutrin, 15 testified that sometimes he hears voices and feels suicidal. (A.R. 447- 16 49.) Plaintiff stated that, because of his depression, it is very hard 17 for [him] to concentrate, he has no desire to take care of [his] 18 needs, he do[esn t] want to do activities, and all [he] want[s] to 19 do is be alone. (A.R. 326, 330.) 20 not have trouble sleeping, as a matter of fact, all [he] want[s] to do 21 is sleep because of all the medications. Plaintiff testified that he was undergoing regular treatment and Clopremazine. (A.R. 508-09.) Plaintiff further Plaintiff further stated that he does (A.R. 307.) 22 23 In his written decision, the ALJ found that plaintiff suffers from 24 severe depression and blindness in the left eye, both of which are 25 medically determinable impairments that reasonably could cause the 26 subjective limitations about which plaintiff complains. 27 However, 28 intensity, persistence and limiting effects of his limitations. (A.R. the ALJ rejected plaintiff s 12 statements (A.R. 458.) concerning the 1 461.) The ALJ stated that: 2 [Plaintiff] 3 was a generally credible witness. He 4 testified that he helps his wife care for his children and 5 grandchildren with whom he resides. 6 depressed because of the loss of his eye. 7 to go back to work at his old job but they would not hire him 8 back. 9 will hire him because he is blind in one eye. He testified that he was He said he wanted He said that he has looked for other work but no one He has been 10 treated with medication for depression for several years but 11 no 12 counseling. 13 physical problems. doctor has given him psychotherapy or sent him for Other than his eyesight, he said he has no other 14 15 After considering the evidence of record, the undersigned 16 finds that [plaintiff s] medically determinable impairments 17 could reasonably be expected to produce the alleged symptoms, 18 but that [plaintiff ]s statements concerning the intensity, 19 persistence and limiting effects of these symptoms are not 20 entirely credible. 21 22 .... 23 24 ... [Plaintiff] testified that he assists his wife in caring 25 for their four grandchildren and they are compensated by their 26 children 27 [plaintiff] has been somewhat depressed by the loss of his eye 28 seven years ago, he has been treated only with medication and for performing those 13 services.... Although 1 without therapy. . . . 2 only to do his previous work and that he did not think anyone 3 will 4 [plaintiff] may believe that no one will hire him because of 5 his lack of slight [sic] in one eye, it belies common sense 6 that he could [not] find a manual labor job in the local or 7 national economy. 8 for work. hire him for [Plaintiff] testified that he wanted any other type of work. Although Simply stated, he has elected not to look 9 10 (A.R. 461-62.) 11 these reasons do not withstand scrutiny. When examined in the light of the record as a whole, 12 13 The ALJ s reliance on plaintiff s ability to engage in limited 14 daily 15 grandchildren, as being inconsistent with his claims of debilitating 16 symptoms (A.R. 461) is not a convincing basis upon which to reject 17 plaintiff s testimony. 18 regarding how little or how much plaintiff actually does to assist his 19 wife in caring for their grandchildren. 20 plaintiff s daily activities to support his adverse credibility finding 21 fails, therefore, to demonstrate how whatever plaintiff may do to care 22 for his grandchildren, with whom he resides, translates into the ability 23 to engage in full-time work. 24 (9th Cir. 1998)(only if the level of activity were inconsistent with 25 claimant s claimed limitations would these activities have any bearing 26 on claimant s credibility); Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 27 1987)(disability claimant need not vegetate in dark room to be deemed 28 eligible for benefits); Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th activities, such as assisting his wife in caring for his There is, however, no evidence of record The ALJ s casual reference to See Reddick v. Chater, 157 F.3d 715, 722 14 1 Cir. 1990)(daily activities may not be relied upon to support an adverse 2 credibility decision where those activities do not affect the claimant s 3 ability to perform appropriate work activities on an ongoing and daily 4 basis); Fair, 885 F.2d at 602 ( The Social Security Act does not require 5 that an individual be utterly incapacitated to be eligible for benefits, 6 and many home activities may not be easily transferable to a work 7 environment where it might be impossible to rest periodically or take 8 medication. ). 9 10 Further, the ALJ s rejection of plaintiff s subjective complaints 11 based, in part, on the fact that plaintiff s symptoms are managed 12 conservatively, primarily with medications, is not a convincing reason 13 to reject plaintiff s credibility. 14 the record to support the ALJ s belief that more aggressive treatment 15 would alleviate plaintiff s symptoms to a degree rendering him able to 16 work.3 17 of a claimant s subjective limitations based, in part, on plaintiff s 18 record of receiving minimal and conservative treatment, he must make 19 detailed findings of fact so that a reviewing court may determine 20 whether substantial evidence supports the ALJ s conclusion. 21 failed to meet his burden here. 22 Schwieker, 654 F.2d 631, 634-635 (9th Cir. 1981). There is no substantial evidence in While it is permissible for an ALJ to evaluate the credibility See The ALJ Fair, 885 F.2d at 601-02; Lewin v. 23 24 25 26 27 28 3 While the medical expert opined that plaintiff needed to receive cognitive restructuring therapy in addition to medication, the expert conceded that none of plaintiff s treating doctors had found any such treatment warranted. In addition, the record showed that plaintiff lacked medical insurance and, as the medical expert conceded, plaintiff s ability to receive such therapy, even had his doctors prescribed it, was a resource issue. (A.R. 511, 515, 517-18.) 15 Defendant 1 contends that the ALJ s rejection of plaintiff s 2 subjective complaints was permissible, because there was a lack of 3 objective 4 complaints. 5 ALJ may not discredit a claimant s subjective claims of disabling 6 limitations of his 7 limitation is not fully supported by objective medical evidence. See 8 Fair, 885 F.2d at 601-02; Stewart, 881 F.2d at 743-44. 9 erred by requiring plaintiff to adduce medical evidence sufficient to 10 corroborate the severity of his alleged depression limitations and other 11 symptoms. medical evidence to support (Joint Stip. at 10.) for the sole [p]laintiff s subjective However, it is well-settled that an reason that the alleged degree Thus, the ALJ See Bunnell, 947 F.2d at 346. 12 13 Accordingly, the ALJ s rejection of plaintiff s credibility without 14 setting forth clear and convincing reasons for the rejection constitutes 15 reversible error.4 16 exist 17 discrediting plaintiff s pain testimony. and in On remand, the ALJ must provide reasons, if they accordance with the requisite legal standards, for 18 19 III. The ALJ Should Consider The Lay Witness Statements On Remand. 20 21 In evaluating the credibility of a claimant s assertions of 22 functional limitations, the ALJ must consider lay witnesses reported 23 observations of the claimant. 24 family members in a position to observe a claimant s symptoms and daily Stout, 454 F.3d at 1053. [F]riends and 25 26 27 28 4 Another reason stated by the ALJ for rejecting plaintiff s credibility was that, in the ALJ s view, plaintiff has elected not to look for work. (A.R. 462.) While the ALJ s opinion regarding plaintiff s motivation to find work is entitled to some deference, this reason alone is not sufficient to reject plaintiff s credibility. 16 1 activities are competent to testify as to [the claimant s] condition. 2 Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993); 20 C.F.R. § 3 416.913(d)(4) ( we may also use evidence from other sources to show the 4 severity of your impairment(s).... 5 limited to ... spouses, parents and other care-givers, siblings, other 6 relatives, friends, neighbors, and clergy ). 7 testimony of a lay witness, the ALJ must provide reasons that are 8 germane to each witness. 9 Cir. 2009)(citation omitted). Other sources include, but are not If an ALJ disregards the Bruce v. Astrue, 557 F.3d 1113, 1114 (9th Further, the reasons germane to each 10 witness must be specific. Stout, 454 F.3d at 1054 (explaining that 11 the ALJ, not the district court, is required to provide specific 12 reasons for rejecting lay testimony ). 13 14 An ALJ may properly discount lay testimony that conflict[s] with 15 the available medical evidence (Vincent v. Heckler, 739 F.2d 1393, 1395 16 (9th Cir. 1984)), particularly, when, as in Vincent, lay witnesses 17 [are] making medical diagnoses, because [s]uch medical diagnoses are 18 beyond the competence of lay witnesses and therefore do not constitute 19 competent evidence. 20 1996) (original emphasis). 21 testifies about a claimant s symptoms, such testimony is competent 22 evidence and cannot be disregarded without comment. 23 454 F.3d at 1055, where the ALJ s error lies in a failure to properly 24 discuss competent lay testimony favorable to the claimant, a reviewing 25 court cannot consider the error harmless unless it can confidently 26 conclude that no reasonable ALJ, when fully crediting the testimony, 27 could have reached a different disability determination. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. When, as here, however, a lay witness 28 17 Id. Under Stout, 1 Plaintiff contends that the ALJ improperly ignored the lay witness 2 statements of his daughter, Nancy Miranda. (Joint Stip at 13-15.) 3 a Function Report-Adult Third Party Questionnaire dated February 3, 2004 4 (the Questionnaire ), Ms. Miranda provided observations regarding 5 plaintiff s alleged impairments and their impact on plaintiff s daily 6 activities and ability to work. 7 that she spend[s] quite a lot of time with [her] father since [he] 8 lives with [her]. 9 plaintiff is limited in his ability to: (A.R. 298-306.) (A.R. 298.) In Ms. Miranda stated Ms. Miranda further stated that remember ; concentrate ; 10 complete tasks ; understand ; follow instructions ; and get along 11 with others. 12 plaintiff is a stressful [sic] man since the accident happen[ed], and 13 he gets upset [with] any routine changes. 14 Miranda stated that she feel[s] that [her] father is in a state of 15 depression that he could take his life at any time. (A.R. 303.) In addition, Ms. Miranda explained that (A.R. 304.) Finally, Ms. (Id.) 16 17 Nowhere in the ALJ s decision does he mention Ms. Miranda s 18 observations, which both corroborate and expand upon plaintiff s symptom 19 testimony. The ALJ s failure to do so constitutes error. Specifically, 20 the ALJ should have addressed Ms. Miranda s observations regarding 21 plaintiff s 22 following instructions, because such observations are neither medical 23 diagnoses, as in Vincent, nor are they entirely consistent with the 24 ALJ s residual functional capacity assessment, as defendant contends. 25 (Joint 26 plaintiff s 27 following instructions are fully credited in conducting a harmless error 28 analysis, as required by Stout, then the Court cannot confidently Stip. memory at lapses, 15.) memory difficulty Further, lapses, if Ms. difficulty 18 concentrating, Miranda s and trouble observations concentrating, and of trouble 1 conclude that no reasonable ALJ ... could have reached a different 2 disability determination. 3 ALJ s failure to address the observations of Ms. Miranda, which if not 4 rejected for proper reasons may require the inclusion of additional 5 limitations in the hypothetical posed to the vocational expert, cannot 6 simply be dismissed as harmless error. Stout, 454 F.3d at 1056. Therefore, the 7 8 On remand, the ALJ must provide proper reasons, if they exist, for 9 rejecting Ms. Miranda s statements regarding her observations of the 10 nature and extent of plaintiff s alleged impairments and attendant 11 limitations as discussed above, so that a reviewing court may know the 12 basis for the ALJ s decision and have the ability to assess the 13 propriety of that decision. 14 15 16 IV. The ALJ Should Consider The Opinion Of The State Agency Physician On Remand. 17 18 Pursuant to the Commissioner s regulations: 19 20 (I) Administrative law judges are not bound by any findings 21 made by State agency medical or psychological consultants, or 22 other program physicians or psychologists. 23 agency medical psychological consultants and other program 24 physicians and psychologists are highly qualified physicians 25 and psychologists who are also experts in Social Security 26 disability evaluation. 27 must 28 psychological consultants or other program physicians or consider However, State Therefore, administrative law judges findings of 19 State agency medical and 1 psychologists as opinion evidence.... 2 3 (ii) 4 controlling weight, the administrative law judge must explain 5 in the decision the weight given to the opinions of a State 6 agency medical or psychological consultant or other program 7 physician or psychologist, as the administrative law judge 8 must do for any opinions from treating sources, nontreating 9 sources, and other nonexamining sources who do not work for 10 ... Unless the treating source s opinion is given us. 11 12 20 C.F.R. § 416.927(f)(2)(I) and (ii). 13 14 Social Security Ruling ( SSR ) 96-6p makes plain that, although 15 administrative law judges and the Appeals Council are not bound by 16 findings 17 psychologists, both administrative law judges and the Appeals Council 18 may not ignore these opinions and must explain the weight given to the 19 opinions in their decisions. made by State agency or other program physicians and Id. (emphasis added). 20 21 Here, plaintiff contends that the ALJ erred in failing to discuss 22 the findings of the State agency psychiatrist, M. Becraft, M.D. 23 Stip. at 17.) 24 residual functional capacity assessment of plaintiff, in which he 25 indicated that plaintiff is moderately limited in his ability to: 26 understand 27 instructions; interact appropriately with the general public; and get 28 along with coworkers or peers without distracting them or exhibiting and (Joint On April 23, 2004, Dr. Becraft completed a mental remember detailed instructions; 20 carry out detailed 1 behavioral extremes. (A.R. 393-94.) 2 The 3 ALJ s decision is devoid of any mention, much less any 4 discussion or meaningful evaluation, of Dr. Becraft s findings. As the 5 ALJ provided no reason(s) for omitting Dr. Becraft s conclusions, it is 6 unclear whether the ALJ properly considered Dr. Becraft s opinion in 7 accordance with 20 C.F.R. § 416.927(f)(2)(I) and (ii). 8 9 Defendant contends that the ALJ s silence with respect to Dr. 10 Becraft s findings was justified, as the omission was harmless error 11 because Dr. Becraft s opinion was still consistent with the ALJ s 12 residual 13 Contrary to defendant s contention, it is unclear to the Court whether 14 the ALJ s omission was indeed harmless. 15 § 416.927(f)(2)(I) and (ii), as well as SSR 96-6p, to explain how he 16 reached his conclusions. functional capacity assessment. (Joint Stip. at 18.) The ALJ is bound by 20 C.F.R. 17 18 19 Accordingly, remand is required for the ALJ to set forth legally sufficient reasons, if any, for rejecting Dr. Becraft s opinion. 20 21 V. Until The ALJ Has Considered Properly The Opinions Of Dr. Villar 22 And Dr. Becraft, Plaintiff s Subjective Complaints, And The Lay 23 Witness Statements, The Court Cannot Assess The Propriety Of The 24 Hypothetical Posed To The Vocational Expert. 25 26 If a vocational expert s hypothetical does not reflect all the 27 claimant s limitations, then the expert s testimony has no evidentiary 28 value to support a finding that the claimant can perform jobs in the 21 1 national economy. 2 1993)(citation omitted). 3 expert, 4 limitations. 5 testimony to constitute substantial evidence, the hypothetical question 6 must consider all of the claimant s limitations. 7 1044 (holding that hypothetical questions that do not include all of 8 plaintiff s limitations are insufficient and warrant remand). the ALJ Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. must In posing a hypothetical to a vocational accurately reflect Embrey, 849 F.2d at 422-24. all of the claimant s For the vocational expert s Andrews, 53 F.3d at 9 10 Here, the hypothetical may be incomplete to the extent that it does 11 not reflect appropriately, in whole or in part, the opinions of Drs. 12 Villar 13 observations of plaintiff s daughter regarding plaintiff s limitations. and Becraft, plaintiff s subjective complaints, and the 14 15 On remand, the ALJ should either properly reject the opinions of 16 Drs. Villar and Becraft, plaintiff s subjective complaints, and the 17 observations of Ms. Martinez, in accordance with the appropriate legal 18 standards, or the ALJ must incorporate additional limitations into the 19 hypothetical posed to the vocational expert. 20 21 VI. Remand Is Required. 22 23 The decision whether to remand for further proceedings or order an 24 immediate award of benefits is within the district court s discretion. 25 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 26 useful purpose would be served by further administrative proceedings, or 27 where the record has been fully developed, it is appropriate to exercise 28 this discretion to direct an immediate award of benefits. 22 Where no Id. at 1179 1 ( the decision of whether to remand for further proceedings turns upon 2 the likely utility of such proceedings ). 3 outstanding issues that must be resolved before a determination of 4 disability can be made, and it is not clear from the record that the ALJ 5 would be required to find the claimant disabled if all the evidence were 6 properly evaluated, remand is appropriate. However, where there are Id. 7 8 Here, the Court concludes, with some hesitation, that remand is the 9 appropriate remedy to allow the ALJ one final opportunity to remedy the 10 above-mentioned 11 Barnhart, 12 proceedings is appropriate if enhancement of the record would be 13 useful); McAllister, 888 F.2d at 603 (remand appropriate to remedy 14 defects in the record). 15 that this case has twice been remanded for further consideration and 16 most recently with very detailed direction from the Appeals Council, 17 which the ALJ made scant effort to follow. 379 deficiencies F.3d 587, and 593 errors. (9th Cir. See, e.g., 2004)(remand Benecke for v. further It is, however, deeply troubling to the Court 18 19 CONCLUSION 20 21 Accordingly, for the reasons stated above, IT IS ORDERED that the 22 decision of the Commissioner is REVERSED, and this case is REMANDED for 23 further proceedings consistent with this Memorandum Opinion and Order. 24 25 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 26 copies of this Memorandum Opinion and Order and the Judgment on counsel 27 for plaintiff and for defendant. 28 23 1 LET JUDGMENT BE ENTERED ACCORDINGLY. 2 3 DATED: September 4, 2009 4 5 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24

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