Rhonda Nixon v. Michael J Astrue, No. 5:2009cv00391 - Document 21 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
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Rhonda Nixon v. Michael J Astrue Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 RHONDA NIXON, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 09-00391-MAN MEMORANDUM OPINION AND ORDER Plaintiff filed a Complaint on March 5, 2009, seeking review of the 18 denial by the Social 19 plaintiff’s application for a period of disability, disability insurance 20 benefits (“DIB”), and supplemental security income (“SSI”). On April 8, 21 2009, the parties consented to proceed before the undersigned United 22 States Magistrate Judge pursuant to 28 U.S.C. § 636(c). 23 filed a Joint Stipulation on November 23, 2009 (“Joint Stip.), in which: 24 plaintiff seeks an order reversing the Commissioner’s decision and 25 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. administrative Security Commissioner proceedings; and (“Commissioner”) defendant of The parties seeks an order Dockets.Justia.com SUMMARY OF ADMINISTRATIVE PROCEEDINGS 1 2 3 On November 17, 2004, plaintiff filed a protective application for 4 a period of disability and DIB, alleging a disability onset date of 5 January 17, 2003, due to difficulties with concentration and memory, a 6 brain aneurysm, mood swings, advanced osteoporosis, and headaches. 7 (Administrative Record (“A.R.”) 19, 28, 45, 48.) 8 relevant work as a bookkeeper. Plaintiff has past (A.R. 49.) 9 10 The Commissioner denied plaintiff’s application initially and upon 11 reconsideration. (A.R. 19-25, 28-32.) On June 16, 2006, plaintiff, who 12 was represented by counsel, testified at a hearing before Administrative 13 Law Judge F. Keith Varni (“ALJ”). (A.R. 112-26.) On July 24, 2006, the 14 ALJ denied plaintiff’s claim. (A.R. 10-13.) The Appeals Council 15 subsequently 16 decision. denied plaintiff’s request for review of the ALJ’s (A.R. 3-5.) 17 18 On January 11, 2007, Plaintiff filed a civil action in this 19 district, in Case No. EDCV 06-1425-MAN. 20 this Court reversed the Commissioner on the basis that the ALJ failed to 21 develop the record adequately regarding plaintiff’s medical records from 22 Kaiser and to consider lay witness testimony. 23 Court remanded the matter for further proceedings consistent with its 24 decision. (A.R. 165.) On March 31, 2008, (A.R. 165-73.) This (AR 173). 25 26 While the foregoing civil action was pending in this Court, on 27 January 17, 2007, plaintiff filed a subsequent application for a period 28 of disability, DIB, and SSI, alleging a disability onset date of March 2 1 7, 2003, due to memory problems, severe headaches, and focus problems. 2 (A.R. 161, 283-84, 329.) The Commissioner denied the second application 3 initially and upon reconsideration. 4 17, 2008, the Appeals Council noted this Court’s remand order and 5 directed the ALJ to associate the two Title II (period of disability and 6 DIB) claims and issue a new decision on the associated claims, and 7 further, to consider whether to consolidate the SSI claim filed on 8 January 17, 2007, with the DIB claims. (A.R. 283-84, 298-308.) On June (A.R. 161.) 9 10 On November 13, 2008, plaintiff, who was represented by counsel, 11 testified before the ALJ. 12 vocational expert at the hearing. 13 the ALJ issued a written decision that: 14 claims; and denied plaintiff’s consolidated claims. (A.R. 134-41.) The 15 Appeals Council subsequently denied plaintiff’s request for review of 16 the ALJ’s decision. (A.R. 261-77.) Joseph Mooney testified as a (A.R. 277-79.) On February 4, 2009, consolidated the DIB and SSI (Joint Stip. at 2.) 17 18 SUMMARY OF ADMINISTRATIVE DECISION 19 20 The ALJ found that plaintiff did not engage in substantial gainful 21 activity from March 7, 2003, the alleged onset date, through the date of 22 the decision. 23 following severe impairments: 24 mixed migraine and muscle tension headaches; cognitive disorder, not 25 otherwise specified; and depressive disorder, not otherwise specified. 26 (A.R. 136-37.) 27 equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, 28 Appendix 1. (A.R. 136.) The ALJ determined that plaintiff had the brain aneurysm, status post clipping; He concluded that these impairments did not meet or (A.R. 137.) 3 1 2 The ALJ determined that plaintiff had the residual functional capacity (“RFC”) to: 3 4 perform light and medium work as defined in 20 CFR 404.1567 5 and 416.967 except lifting or carrying more than forth [sic] 6 pounds occasionally, or twenty pounds frequently and routine, 7 repetitive entry level, minimally stressful work, requiring no 8 contact with the general public and superficial interpersonal 9 contact with coworkers and supervisors. 10 11 (A.R. 138.) 12 relevant work. The ALJ found that plaintiff was unable to perform her past (A.R. 140.) 13 14 Having considered plaintiff’s age, education, work experience, and 15 RFC, as well as in reliance on testimony from the vocational expert, the 16 ALJ found that jobs exist in the national economy that plaintiff can 17 perform, including those of housekeeper, cleaner, packer, and unskilled 18 office aide. 19 plaintiff was not disabled, as defined in the Social Security Act, from 20 March 7, 2003, the alleged onset date, through the date of his decision. 21 (A.R. 141.) (A.R. 140-41.) Accordingly, the ALJ concluded that 22 23 STANDARD OF REVIEW 24 25 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s 26 decision to determine whether it is free from legal error and supported 27 by substantial evidence in the record as a whole. 28 F.3d 625, 630 (9th Cir. 2007). Orn v. Astrue, 495 Substantial evidence is “‘such relevant 4 1 evidence as a reasonable mind might accept as adequate to support a 2 conclusion.’” 3 a mere scintilla but not necessarily a preponderance.” 4 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). “While inferences from the 5 record can constitute substantial evidence, only those ‘reasonably drawn 6 from the record’ will suffice.” 7 1066 (9th Cir. 2006)(citation omitted). Id. (citation omitted). The “evidence must be more than Connett v. Widmark v. Barnhart, 454 F.3d 1063, 8 9 Although this Court cannot substitute its discretion for that of 10 the Commissioner, the Court nonetheless must review the record as a 11 whole, “weighing both the evidence that supports and the evidence that 12 detracts from the [Commissioner’s] conclusion.” 13 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 14 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 15 responsible for determining credibility, resolving conflicts in medical 16 testimony, and for resolving ambiguities.” 17 1035, 1039-40 (9th Cir. 1995). 18 support either a grant or a denial, [a federal court] may not substitute 19 [its] judgment for the ALJ’s.” 20 F.3d 1219, 1222 (9th Cir. 2009)(citation and internal punctuation 21 omitted). Desrosiers v. Sec’y of “The ALJ is Andrews v. Shalala, 53 F.3d “Where the evidence as a whole can Bray v. Comm’r of Soc. Sec. Admin., 554 22 23 The Court will uphold the Commissioner’s decision when the evidence 24 is susceptible to more than one rational interpretation. 25 Astrue, 553 F.3d 1035, 1038 (9th Cir. 2008); Burch v. Barnhart, 400 F.3d 26 676, 679 (9th Cir. 2005); see also Batson v. Comm’r of Soc. Sec. Admin., 27 359 F.3d 1190, 1193 (9th Cir. 2004)(“if evidence exists to support more 28 than one rational interpretation, we must defer to the Commissioner’s 5 Tommasetti v. 1 decision”). 2 the ALJ in his decision “and may not affirm the ALJ on a ground upon 3 which he did not rely.” 4 F.3d at 874. 5 it is based on harmless error, which exists only when it is “clear from 6 the record that an ALJ’s error was ‘inconsequential to the ultimate 7 nondisability determination.’” 8 880, 885 (9th Cir. 2006)(quoting Stout v. Comm’r, 454 F.3d 1050, 1055-56 9 (9th Cir. 2006)); see also Tommasetti, 533 F.3d at 1038; Burch, 400 F.3d 10 However, the Court may review only the reasons stated by Orn, 495 F.3d at 630; see also Connett, 340 The Court will not reverse the Commissioner’s decision if Robbins v. Soc. Sec. Admin., 466 F.3d at 679. 11 DISCUSSION 12 13 Plaintiff alleges the following five issues: 14 considered 15 properly 16 Plaintiff’s limitations; (2) whether the ALJ properly considered the 17 treating clinician’s opinion; (3) whether the ALJ properly considered 18 the side effects of plaintiff’s medications; (4) whether the ALJ 19 properly 20 considered lay witness testimony. developed Dr. the Douglas record; W. and Larson’s (1) whether the ALJ (5) whether findings the ALJ regarding properly (Joint Stip. at 3.) 21 22 I. The ALJ Properly Considered Dr. Larson’s Opinion. 23 24 In the hierarchy of physician opinions considered in assessing a 25 social security claim, “[g]enerally, a treating physician’s opinion 26 carries more weight than an examining physician’s, and an examining 27 physician’s opinion carries more weight than a reviewing physician’s.” 28 Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. §§ 6 1 404.1527(d)(1)-(2), 416.927(d)(1)-(2). 2 physician’s opinion is not contradicted by another physician, it may be 3 rejected only for “clear and convincing” reasons. 4 F.3d 821, 830 (9th Cir. 1995). 5 the ALJ may not reject the opinion of a treating or examining physician 6 without 7 substantial evidence in the record. providing “specific Where a treating or examining Lester v. Chater, 81 Where contradicted by another doctor, and legitimate” reasons supported by Id. at 830-31. 8 On August 14, 2008, Dr. Douglas W. Larson1 performed a comprehensive 9 10 psychiatric evaluation of plaintiff.2 11 reviewed plaintiff’s medical records from Arrowhead Regional Medical 12 Center, interviewed plaintiff, and performed several tests. 13 Subsequently, 14 comprehensive psychiatric evaluation, dated August 14, 2008 (the “Larson 15 Opinion”) (A.R. 232-39); and a Medical Source Statement of Ability to Do 16 Work-Related Activities (Mental) (the “Medical Source Statement”) (A.R. 17 241-43). Dr. Larson issued two (A.R. 232-39.) opinions: a Dr. Larson summary (Id.) of the 18 19 In the Larson Opinion, Dr. Larson diagnosed plaintiff with a 20 cognitive disorder, not otherwise specified, and depressive disorder, 21 not otherwise specified, and assigned plaintiff a Global Assessment of 22 23 24 1 26 Dr. Larson is a licensed psychologist. (A.R. 239.) Because licensed psychologists are acceptable medical sources whose opinions are considered medical opinions, the Court will refer to Dr. Larson as a physician. 20 C.F.R. §§ 404.1513(a)(2) and 404.1527(a)(2) 27 2 25 28 Plaintiff mischaracterizes Dr. Larson as a State Agency review psychologist. (Joint Stip. at 3-5.) The record clearly demonstrates that Dr. Larson was an examining physician. (See A.R. 232-39.) 7 1 Functioning (“GAF”) score of 57.3 2 plaintiff had an aneurysm and possible myocardial infarction. 3 232.) 4 headaches 5 communication. 6 combative as a result of her difficulties communicating with others 7 (A.R. 233), and Dr. Larson noted that plaintiff “kind of proved her 8 point” 9 “argumentative may have been a better term” (A.R. 236). (A.R. 237.) Dr. Larson noted that (A.R. Dr. Larson further noted plaintiff’s complaints of severe and that difficulties (A.R. she is with 232-33.) not a memory, Plaintiff good concentration, reported communicator, that she observing and was that Dr. Larson 10 further noted that, with respect to daily living, plaintiff does 11 household chores, does yard work, drives a car, and sews. 12 35.) Dr. Larson acknowledged that plaintiff presented a difficult case, 13 because 14 “present[ed] as a fairly bright individual who can perform many routine 15 mental calculations with no interference at all.” 16 Larson commented that plaintiff’s alcohol use may contribute to her 17 difficulties in functioning but indicated that “it is somewhat difficult 18 to determine.” although she reported difficulties functioning, (A.R. 234- she (A.R. 237-38.) also Dr. (A.R. 238.) 19 20 Consequently, Dr. Larson opined that plaintiff had some moderate 21 functional limitations and restated his functional assessment from the 22 Medical Source Statement. (A.R. 238-39, 241-43.) Dr. Larson found that 23 plaintiff has “no impairment in terms of understanding, remembering, 24 3 25 26 27 28 A Global Assessment of Functioning score is the clinician’s judgment of the individual’s overall level of functioning. It is rated with respect only to psychological, social, and occupational functioning, without regard to impairments in functioning due to physical or environmental limitations. DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, at 32 (4th Ed. 2000). A GAF score between 51-60 indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning. Id. at 34. 8 1 carrying out simple instructions and the ability to make judgments on 2 simple work-related decisions.” 3 presented with complex instructions or work-related decisions, however, 4 Dr. Larson opined that she would have moderate difficulty understanding, 5 remembering, carrying out, and making judgments. 6 cited examples that supported his conclusion that plaintiff would 7 experience moderate difficulty with respect to complex instructions and 8 decisions. 9 moderately impaired in her ability to interact with others and respond 10 appropriately to work situations and changes to routines in work 11 settings. (Id.) Dr. (A.R. 238, 241.) Larson further opined If plaintiff is (Id.) that Dr. Larson plaintiff is (A.R. 238-39, 242.) 12 13 Plaintiff contends that the ALJ “failed to discuss or even mention” 14 the Medical Source Statement. 15 plaintiff argues that the ALJ failed to consider plaintiff’s limitations 16 as to which Dr. Larson opined in the Medical Source Statement. 17 5.) (Joint Stip. at 3-5.) Specifically, (Id. at Plaintiff’s claim is without merit. 18 19 Contrary to plaintiff’s contention, the ALJ discussed and credited 20 the Larson Opinion and Medical Source Statement. 21 not expressly mention either by name, he discussed the findings from the 22 August 2008 consultative psychological examination. (A.R. 137-38.) Dr. 23 Larson was the only physician to perform a consultative psychological 24 examination on plaintiff in August 2008. 25 to the findings in the 2005 consultative psychological evaluation, Dr. 26 Larson 27 impairment. 28 GAF score of 57, which indicated that plaintiff exhibited moderate concluded that (A.R. 137.) there were Although the ALJ did The ALJ noted that, contrary positive findings of a mental The ALJ also noted that Dr. Larson assessed a 9 1 limitations. (Id.) In setting forth plaintiff’s RFC, the ALJ 2 specifically stated that he had “credit[ed] the finding of [Dr. Larson] 3 and f[ou]nd mild to moderate limitation mentally.” (A.R. 139.) Indeed, 4 plaintiff’s RFC reflects the ALJ’s inclusion of Dr. Larson’s limitations 5 with respect to complex work and interaction with others, as the ALJ 6 limited plaintiff to 7 stressful work, requiring no contact with the general public and 8 superficial interpersonal contact with coworkers and supervisors.” 9 (A.R. 138.) “routine, repetitive entry level, minimally 10 11 12 Accordingly, the ALJ properly considered the opinion of Dr. Larson and did not err. 13 14 15 II. The ALJ Was Not Required To Discuss The Opinion Of A Treating Clinician. 16 17 An ALJ is not required to discuss every piece of evidence in the 18 record. 19 (“in interpreting the evidence and developing the record, the ALJ does 20 not need ‘to discuss every piece of evidence’”)(citation omitted). 21 Social Security Administration’s regulations state that, “[i]n addition 22 to evidence from the acceptable medical sources . . . we may also use 23 evidence from other sources to show the severity of your impairment(s) 24 and how it affects your ability to work.” 25 416.913(d). 26 legal error by failing to discuss the opinion of a non-physician who has 27 only examined plaintiff on one occasion. See Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) The 20 C.F.R. §§ 404.1513(d), Contrary to plaintiff’s argument, an ALJ does not commit 28 10 On March 7, 2008, plaintiff made a follow-up visit to the Family 1 2 Health Center at 3 headaches. 4 plaintiff. (A.R. 207.) In an Out Patient Note, the clinician indicated 5 a diagnosis of migraine headaches and bipolar disorder. 6 The clinician referred plaintiff to the Phoenix Clinic for psychiatric 7 treatment. (A.R. Arrowhead Regional 207-08.) An Medical Center unidentified regarding clinician4 her examined (A.R. 207-08.) (A.R. 207.) 8 9 Plaintiff contends that the ALJ erred, because he failed to discuss 10 or even mention this Out Patient Note. (Joint Stip. at 7-8.) Plaintiff 11 further argues that the ALJ needed to provide “legally sufficient 12 reasons” for rejecting the note. (Joint Stip. at 8.) 13 14 Plaintiff acknowledges that the examining clinician is not an 15 acceptable medical source. 16 in plaintiff’s favor, the Court assumes that the examining clinician is 17 either a physician’s assistant, nurse practitioner, or nurse, none of 18 whom is an acceptable medical source. 19 that the clinician worked closely with any of plaintiff’s doctors such 20 that he or she was acting as a doctor’s agent and could be considered an 21 acceptable medical source. 22 (9th 23 conjunction with, and under the supervision of, a physician could be 24 considered an acceptable medical source). Cir. 1996)(finding (Joint Stip. at 8.) Construing the record Further, there is no evidence See Gomez v. Chater, 74 F.3d 967, 970-71 that a nurse practitioner who worked in Thus, the Out Patient Note 25 26 27 28 4 Neither plaintiff nor defendant identify the person who signed the Out Patient Note, although both assert that the person was a clinician and was not a physician. (Joint Stip. at 7-9.) Although the signature is mostly legible, the Court also cannot decipher the name of the examining clinician. (A.R. 207.) 11 1 did not constitute a medical opinion that the ALJ was required to 2 discuss. 3 opinions are statements from physicians or psychologists or other 4 acceptable medical sources . . .”). 5 constitutes an “other source,” whose opinion the ALJ may, but is not 6 required to, consider. 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2) (“[m]edical Instead, a treating clinician 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1). 7 8 9 Here, the Out Patient Note does not mention any functional limitations; it simply includes plaintiff’s reported complaints and a 10 diagnosis. 11 plaintiff’s reported symptoms, these symptoms are also discussed in 12 other treatment notes and the medical opinions. 13 209, 237.) 14 acceptable medical source and provides no information as to plaintiff’s 15 limitations and daily functioning, the ALJ was not required to discuss 16 it.5 (A.R. 207-08.) Although the Out Patient Note references (Compare A.R. 208 and Because the Out Patient Note is not an opinion from an 17 18 Accordingly, the ALJ’s omission of a discussion of the Out Patient 19 Note from the decision was not reversible error. 20 /// 21 /// 22 /// 23 5 24 25 26 27 28 Although the ALJ did not discuss the Out Patient Note, two consultative examining physicians reviewed plaintiff’s medical records, including this note and referenced it in their opinions. Dr. Robert A. Moore and Dr. Larson both expressly stated that they reviewed plaintiff’s medical records from 2006 through 2008. (A.R. 227, 232.) Further, Dr. Larson noted that the treating clinician indicated that plaintiff possibly had bipolar disease and referred her to the Phoenix Clinic, with which plaintiff did not follow up. (A.R. 232.) The ALJ discussed both Dr. Moore’s and Dr. Larson’s opinions in his decision. (A.R. 137-39.) 12 1 III. There 2 Is No Reversible Error With Respect To The ALJ’s Consideration Of The Side Effects Of Plaintiff's Medications. 3 4 Pursuant to Social Security Ruling (“SSR”) 96-7p, an ALJ must 5 consider the “type, dosage, effectiveness, and side effects of any 6 medication the individual takes or has taken to alleviate pain or other 7 symptoms.” 8 effects that have a “significant impact on an individual’s ability to 9 work.” However, an ALJ need only consider those medication side Erickson v. Shalala, 9 F.3d 813, 817-18 (9th Cir. 1993) 10 (citation and internal punctuation omitted). Side effects of 11 medications not severe enough to interfere with a claimant’s ability to 12 work are properly excluded from consideration. 13 240 F.3d 1157, 1164 (9th Cir. 2001)(“There were passing mentions of the 14 side effects of [the claimant’s] medication in some of the medical 15 records, but there was no evidence of side effects severe enough to 16 interfere with [the claimant’s] ability to work.”). See Osenbrock v. Apfel, 17 18 Plaintiff submitted a Medication Record Update, which lists the 11 19 medications she was prescribed between January 15, 2008, and October 15, 20 2008.6 21 prescribed these medications for plaintiff’s headaches, inflammation, 22 cough, tooth infection, and congestion. (Id.) 23 references to side effects in the record. On March 7, 2008, plaintiff 24 reported to a treating clinician that she experienced the side effects 25 of a “hook feeling” and “compression feeling” from Maxalt and sleepiness (A.R. 177.) According to the Medication Record Update, a doctor There are only two 26 27 28 6 The Medication Record Update contains 14 entries, but there are duplicate medications (A.R. 177.) They reflect changes in dosage amounts. It is unclear who completed this list. 13 1 from Norco. (A.R. 208.) In a May 7, 2008 treatment note, the doctor 2 indicated that plaintiff experienced side effects from Maxalt.7 3 211.) (A.R. 4 5 Plaintiff contends that “the ALJ failed to discuss or even mention 6 the side effects of [p]laintiff’s prescribed medications.” (Joint Stip. 7 at 10.) 8 properly represented the medical record; and (2) whether he substituted 9 his opinion for medical expert testimony. Plaintiff also raises two sub-issues: (1) whether the ALJ (Joint Stip. at 9-12.) The 10 sub-issues are red-herrings that serve to distract from the actual issue 11 and the fact that plaintiff has not met her burden to show that the use 12 of medications, and any side effects therefrom, had a negative effect on 13 her ability to work. 14 1985)(stating that a claimant bears the burden of proving that her 15 medication impairs her ability to work). See Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 16 17 As an initial matter, the Court notes that the Medication Record 18 Update appears to be a list of all medications plaintiff was prescribed 19 from 20 comprehensive list of all of the medications she was taking the day she 21 submitted the list.8 22 taking at the time of the decision, however, plaintiff failed to January 15, 2008, through October 15, 2008, and is not a Regardless of which medications plaintiff was 23 24 7 25 The note specifically stated that “Triptans cause side effects.” (A.R. 211.) The record reflects that the only triptan prescribed to plaintiff was Maxalt. 26 8 27 28 For example, it is highly unlikely that, in October 2008 when this list was created, plaintiff was still taking Promethazine, which was first prescribed for a cough April 2008, and Amoxicillin, which was first prescribed for a tooth infection in May 2008. (A.R. 177.) 14 1 establish how the use of any of the medications had a negative effect on 2 her ability to work. The only side effects plaintiff reported were from 3 Maxalt and Norco (A.R. 208), but a one-time complaint does not prove 4 that such side effects affected or affect her ability to work. 5 passing references to side effects from plaintiff’s medications are 6 inadequate to establish a disabling condition, because there is no 7 objective medical evidence to show that plaintiff's purported side 8 effects resulted in functional limitations that were severe enough to 9 interfere with her ability to work. The See Osenbrock, 240 F.3d at 1164 10 (finding that side effects not severe enough to impair ability to work 11 are not relevant). 12 Maxalt would negatively affect plaintiff’s ability to work, she stopped 13 taking Maxalt in March 2008. Further, even assuming that the side effects from (A.R. 208.) 14 15 As noted above, the plaintiff record -- further by stating contends that the that the medications ALJ 16 misrepresented on 17 plaintiff’s list are not reflected in her treatment records -- and 18 substituted his opinion for medical expert opinion -- by asserting that 19 such medications “would indicate that she is seriously overmedicated.” 20 (Joint Stip. at 10.) 21 raised by plaintiff, i.e., whether the ALJ properly developed the 22 record, and serve no purpose other than to distract from her actual 23 argument concerning the ALJ’s failure to address the alleged side 24 effects of her medications. 25 detail infra, the medications are reflected in the record. Although the 26 ALJ’s comment regarding overmedication is highly inappropriate, and his 27 comment that plaintiff’s medications are not reflected in her treatment 28 records suggests that the ALJ needs to exercise more diligence in These contentions are repetitive of another issue (Joint Stip. at 10-11.) 15 As discussed in 1 reviewing the record, these comments do not concern side effects. 2 Nor do the comments constitute reversible error, as discussed infra. 3 Plaintiff did not meet her burden of demonstrating that her use of 4 5 medications impaired her ability to work. Accordingly, the ALJ did not 6 err in his consideration of the side effects of plaintiff’s medication. 7 8 IV. The ALJ Properly Developed The Record. 9 10 In social security cases, the law is well-settled that the ALJ has 11 an affirmative “‘duty to fully and fairly develop the record and to 12 assure that the claimant’s interests are considered.’” 13 Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)(citations omitted). 14 duty 15 claimant.” 16 “must be especially diligent in exploring for all the relevant facts.” 17 Id. 18 that social security hearings are not adversarial in nature. 19 v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991); see also Sims v. Apfel, 20 530 U.S. 103, 111 (2000)(“It is the ALJ's duty to investigate the facts 21 and develop the arguments both for and against granting benefits.”). 22 “The ALJ’s duty to supplement a claimant’s record is triggered by 23 ambiguous evidence, the ALJ’s own finding that the record is inadequate 24 or the ALJ’s reliance on an expert’s conclusion that the evidence is 25 ambiguous.” 26 Tonapetyan, 242 F.3d at 1150). extends to Id. the represented as well as to the Tonapetyan v. “This unrepresented When a claimant is not represented by counsel, an ALJ The ALJ’s duty to develop the record extends from the basic premise De Lorme Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005)(citing 27 28 Plaintiff contends that the ALJ failed to properly develop the 16 1 record. (Joint Stip. at 13-15.) Specifically, plaintiff argues that 2 the ALJ had a duty to verify the medications reflected on plaintiff’s 3 Medication Record Update (A.R. 177), by requesting additional treatment 4 records, subpoenaing physicians, continuing the hearing, or allowing for 5 supplementation of the record. (Joint Stip. at 14.) 6 7 The duty to further develop the record was not triggered here. The 8 evidence was not ambiguous, and the record was not inadequate. Contrary 9 to the ALJ’s findings, the list of medications at issue can be verified 10 by reviewing the record.9 11 248-49, 251-52, 257.) 12 treatment records or subpoena the treating physicians. (Compare A.R. 177 and 207-08, 211-12, 215, Thus, there was no need to request additional 13 14 Although the ALJ erred by stating that the list of medications are 15 not verified by the record and seemingly made little effort to verify 16 the medications, his lack of diligence is harmless. 17 at 679. 18 despite this error. 19 purpose 20 headaches. 21 could not be verified, he still concluded that plaintiff suffered from 22 the severe impairment of mixed migraine and muscle tension headaches. 23 (A.R. 136.) 24 from headaches and was taking various medications to ease the pain. 25 (See, e.g., A.R. 217, 248.) Plaintiff discussed her headaches with each 26 of the examining physicians, and the ALJ included their opinions and See Burch, 400 F.3d The ALJ would have reached the same disability determination of the The medication list reflects that the primary majority (A.R. 177.) of the medications was for plaintiff’s Although the ALJ claimed that the medications The treatment records clearly show that plaintiff suffered 27 9 28 This verification required knowledge of the brand and generic names of drugs. 17 1 limitations in his determination. See Thomas v. Barnhart, 278 F.3d 947, 2 958 (9th Cir. 2002)(finding that the duty to develop the record was not 3 triggered when the ALJ did not make a finding that the medical report 4 was inadequate to make a disability determination). 5 6 7 Accordingly, the ALJ did not commit reversible error when he failed to verify the medication list. 8 9 10 V. The ALJ Failed To Provide Germane Reasons For Discounting Lay Witness Testimony. 11 12 In evaluating the credibility of a claimant’s assertions of 13 functional limitations, the ALJ must consider lay witnesses’ reported 14 observations of the claimant. 15 family members in a position to observe a claimant’s symptoms and daily 16 activities are competent to testify as to [the claimant’s] condition.” 17 Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993); 20 C.F.R. §§ 18 404.1513(d)(4), 416.913(d)(4) (“[W]e may also use evidence from other 19 sources to show the severity of your impairment(s). . . . 20 include, but are not limited to . . . spouses, parents and other care- 21 givers, siblings, other relatives, friends, neighbors, and clergy.”). 22 “If an ALJ disregards the testimony of a lay witness, the ALJ must 23 provide reasons ‘that are germane to each witness.’” 24 557 F.3d 1113, 1115 (9th Cir. 2009)(citation omitted). 25 reasons “germane to each witness” must be specific. 26 1054 (explaining that “the ALJ, not the district court, is required to 27 provide specific reasons for rejecting lay testimony”). Stout, 454 F.3d at 1053. 28 18 “[F]riends and Other sources Bruce v. Astrue, Further, the Stout, 454 F.3d at 1 An ALJ may “properly discount[] lay testimony that conflict[s] with 2 the available medical evidence,” Vincent v. Heckler, 739 F.2d 1393, 1395 3 (9th Cir. 1984), particularly, when, as in Vincent, “lay witnesses [are] 4 making medical diagnoses,” because “[s]uch medical diagnoses are beyond 5 the 6 competent evidence.” 7 1996)(emphasis in original). 8 testifies about a claimant’s symptoms, such testimony is competent 9 evidence and cannot be disregarded without comment. competence error of lies lay witnesses and therefore do not constitute Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. in a When, as here, however, a lay witness failure to properly Id. discuss “[W]here the 10 ALJ’s competent lay 11 testimony favorable to the claimant, a reviewing court cannot consider 12 the error harmless unless it can confidently conclude that no reasonable 13 ALJ, when fully crediting the testimony, could have reached a different 14 disability determination.” Stout, 454 F.3d at 1056. 15 16 Plaintiff contends that the ALJ failed to properly consider the 17 testimony of Frieda Jones, plaintiff’s mother. 18 Specifically, plaintiff argues that the reasons provided by the ALJ for 19 rejecting Ms. Jones’ testimony are not germane reasons to this witness. 20 (Joint 21 Questionnaire dated December 20, 2004 (the “Questionnaire”), Ms. Jones 22 provided observations regarding plaintiff’s alleged impairments and 23 their impact on plaintiff’s daily activities and ability to work. (A.R. 24 55-62.) 25 plaintiff. 26 plaintiff’s alleged disability, plaintiff worked full-time and was able 27 to 28 financial obligations.” (A.R. 56.) Ms. Jones stated that plaintiff now Stip. at 17.) In a Function (Joint Stip. at 17-18.) Report Adult Third Party Ms. Jones stated that she spends two to six hours each day with (A.R. 55.) “communicate, Ms. Jones further stated that, prior to socialize, rationalize, 19 problem solve, [and] pay 1 has problems with memory, concentration, comprehension, 2 instructions, and getting along with people. 3 asserted that plaintiff is unable to handle her finances and needs 4 reminders to take her medication and perform housework. 5 In addition, plaintiff suffers from headaches and has uncontrolled 6 anger. (A.R. 60.) following Ms. Jones (A.R. 57-58.) (A.R. 56, 59.) 7 8 9 The Questionnaire corroborates the symptoms alleged by plaintiff and which are mentioned in her medical history. Although the ALJ cited 10 multiple reasons for discounting the Questionnaire, none are germane. 11 First, the ALJ stated that plaintiff did not allege problems with 12 interpersonal interactions due to anger in 2004, 2007, or 2008. 13 138.) 14 exact words, plaintiff indicated a problem interacting with others 15 throughout this application process. 16 December 20, 2004, plaintiff indicated that she had problems getting 17 along with others and explained that, due to her now poor communication 18 skills, she became frustrated talking to others. 19 Function Report dated March 9, 2007, plaintiff again indicated that she 20 had problems getting along with others. 21 she could “get along with someone for a very short period of time until 22 it turns into a verbally abusive argument defending myself for one 23 reason” or another. 24 evaluation, plaintiff told Dr. Clifford Taylor that she had “unexplained 25 fits of anger.” 26 psychiatric evaluation with Dr. Larson, plaintiff told Dr. Larson that 27 she is “unable to communicate with people and that as a result of it she 28 finds herself as being combative.” This is inaccurate. (A.R. Although plaintiff may not have used those (Id.) (A.R. 377.) In a Function Report dated (A.R. 68.) (A.R. 339.) In a She stated that On May 2, 2007, at a psychological At the August 14, 2008 comprehensive 20 (A.R. 233.) The facts clearly 1 demonstrate that plaintiff raised her problems 2 with interpersonal interactions and anger in 2004, 2007, and 2008. 3 4 Second, the ALJ stated that there was a dearth of medical records 5 and minimal-to-negative clinical findings to support the finding of 6 impaired social functioning. 7 for rejecting lay witness testimony. One of the purposes of lay witness 8 testimony is to provide insight into a claimant’s daily activities that 9 medical evidence cannot. (A.R. 138.) This is not a germane reason See Smolen v. Chater, 80 F.3d 1273, 1288-89 10 (9th Cir. 1996)(stating that under SSR 88-13, when medical evidence is 11 sparse, 12 claimant’s symptoms). “The rejection of the testimony of [a claimant’s] 13 family members because [her] medical records [do] not corroborate her 14 fatigue and pain violates SSR 88-13, which directs the ALJ to consider 15 the testimony of lay witnesses where the claimant’s alleged symptoms are 16 unsupported 17 statements do not contradict any medical records and they merely serve 18 to supplement where medical evidence does not exist. 19 of 20 Questionnaire. the medical ALJ by must her records consider medical is not lay witness records.” a germane Id. testimony at reason 1289. for regarding Ms. a Jones’ As such, the lack discounting the 21 22 Third, the ALJ stated that plaintiff’s self-described 23 activities are “contrary to” the Questionnaire. 24 stated that plaintiff testified she can perform housework, including 25 cooking and laundry, and drive without any restrictions. 26 unclear how these statements are contrary to the Questionnaire. 27 Jones reported that plaintiff is able to do “laundry and general 28 cleaning” and that she drives. (A.R. 57-58.) 21 (A.R. 139.) daily The ALJ (Id.) It is Ms. Both plaintiff and Ms. 1 Jones also report that plaintiff sews and does crafts, but is unable to 2 complete the projects. 3 plaintiff’s statements are contrary to those of Ms. Jones. (A.R. 59, 67.) The ALJ has not specified how 4 5 Finally, the ALJ discounted the Questionnaire on the basis that it 6 was inconsistent with the statements made by plaintiff’s friend, Gary 7 Engelkes, in a Function Report Adult Third Party Questionnaire he 8 completed, which is dated March 13, 2007. 9 stated that he gave greater weight to the statements by Mr. Engelkes 10 than by Ms. Jones and that the statements by Mr. Engelkes were more 11 consistent with his findings. 12 although Mr. Engelkes indicated that plaintiff had concentration and 13 interpersonal troubles, he also indicated that plaintiff had no problems 14 with routine activities of daily life and adequately performing simple 15 tasks that do not involve interaction with others. 16 ALJ is wrong. (A.R. 139, 342-49.) (A.R. 138-39.) The ALJ The ALJ stated that, (Id.) Again, the 17 18 Mr. Engelkes stated that plaintiff worked two weekends a month at 19 his snack bar, but that she cannot concentrate at her tasks and doesn’t 20 follow instructions, and he has had to send her home on several 21 occasions. 22 Engelkes states that plaintiff can cook, do housework, take care of her 23 own finances, and garden, he also acknowledges that he does not see her 24 cook, she has no money to manage, and he does not know how often or how 25 well she gardens. 26 not inconsistent with the Questionnaire and they are not a germane 27 reason for discounting the Questionnaire. (A.R. 346-48.) As for her daily activities, while Mr. (A.R. 344-46.) Thus, Mr. Engelkes’ statements are 28 22 1 On remand, the ALJ must provide germane reasons, if they exist, for 2 rejecting Ms. Jones’ statements regarding her observations of the nature 3 and extent of plaintiff’s alleged impairments and limitations, so that 4 a reviewing court may know the basis for the ALJ’s decision and have the 5 ability to assess the propriety of that decision. 6 at 1115; Stout, 454 F.3d at 1054. See Bruce, 557 F.3d 7 8 VI. Remand Is Required. 9 10 The decision whether to remand for further proceedings or order an 11 immediate award of benefits is within the district court’s discretion. 12 Harman v. Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000). 13 useful purpose would be served by further administrative proceedings, or 14 where the record has been fully developed, it is appropriate to exercise 15 this discretion to direct an immediate award of benefits. 16 (“[T]he decision of whether to remand for further proceedings turns upon 17 the likely utility of such proceedings.”). 18 outstanding issues that must be resolved before a determination of 19 disability can be made, and it is not clear from the record that the ALJ 20 would be required to find the claimant disabled if all the evidence were 21 properly evaluated, remand is appropriate. Where no Id. at 1179 However, where there are Id. at 1179-81. 22 23 Here, remand is the appropriate remedy to allow the ALJ the 24 opportunity to remedy the above-mentioned deficiencies and errors. See, 25 e.g., Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)(remand for 26 further proceedings is appropriate if enhancement of the record would be 27 useful); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989) 28 (remand appropriate to remedy defects in the record). 23 1 CONCLUSION 2 3 Accordingly, for the reasons stated above, IT IS ORDERED that the 4 decision of the Commissioner is REVERSED, and this case is REMANDED for 5 further proceedings consistent with this Memorandum Opinion and Order. 6 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of 7 this Memorandum Opinion and Order and the Judgment on counsel for 8 plaintiff and for defendant. 9 10 LET JUDGMENT BE ENTERED ACCORDINGLY. 11 12 DATED: September 14, 2010 13 14 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24
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