Tyler Clark v. Michael J. Astrue, No. 5:2009cv01883 - Document 17 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrative action consistent with this Opinion. See order for details. (hr)
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Tyler Clark v. Michael J. Astrue Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TYLER CLARK, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. EDCV 09-1883 JC ) ) ) MEMORANDUM OPINION AND ) ORDER OF REMAND ) ) ) ) ) ) ) 18 19 I. On October 15, 2009, plaintiff Tyler Clark (“plaintiff”) filed a Complaint 20 21 22 23 seeking review of the Commissioner of Social Security’s denial of plaintiff’s application for benefits. The parties have consented to proceed before a United States Magistrate Judge. This matter is before the Court on the parties’ cross motions for summary 24 25 26 27 28 SUMMARY judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; October 16, 2009 Case Management Order ¶ 5. /// 1 Dockets.Justia.com 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is REVERSED AND REMANDED for further proceedings 3 consistent with this Memorandum Opinion and Order of Remand because the 4 Administrative Law Judge (“ALJ”) erroneously failed to address lay witness 5 testimony supplied by plaintiff’s mother and the Court cannot find such error to be 6 harmless. 7 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 8 DECISION 9 On February 28, 2007, plaintiff filed an application for Supplemental 10 Security Income benefits. (Administrative Record (“AR”) 8, 62). Plaintiff 11 asserted that he became disabled on December 15, 2006, due to: “Post pardom 12 [sic] stress due to violent act.” (AR 136). The ALJ examined the medical record 13 and heard testimony from plaintiff (who was represented by counsel), a medical 14 expert, a vocational expert and plaintiff’s mother on January 27, 2009. (AR 2215 61). 16 On May 29, 2009, the ALJ determined that plaintiff was not disabled 17 through the date of the decision. (AR 5-21). Specifically, the ALJ found: 18 (1) plaintiff suffered from the following severe impairments, even apart from 19 symptoms related to plaintiff’s substance abuse: Organic affective disorder, 20 secondary to mixed substance abuse including amphetamines; personality 21 disorder, not otherwise specified; and polysubstance abuse disorder (AR 10, 14); 22 (2) plaintiff’s impairments, including the substance abuse disorders, met the listed 23 impairments in sections 12.02, 12.08 and 12.09, but if plaintiff stopped his 24 substance abuse, plaintiff had no impairments that, considered singly or in 25 combination, met or medically equaled any of the listed impairments (AR 12, 1426 15); (3) if plaintiff stopped his substance abuse, he retained the residual functional 27 capacity to perform a wide range of work at all exertional levels with certain 28 /// 2 1 nonexertional limitations1 (AR 15-16); (4) plaintiff had no past relevant work (AR 2 20); (5) if the plaintiff stopped his substance abuse, there are jobs that exist in 3 significant numbers in the national economy that plaintiff could perform (AR 204 21); and (6) plaintiff’s allegations regarding his limitations were not totally 5 credible (AR 16-17). 6 The Appeals Council denied plaintiff’s application for review. (AR 1). 7 III. APPLICABLE LEGAL STANDARDS 8 A. 9 To qualify for disability benefits, a claimant must show that he is unable to Sequential Evaluation Process 10 engage in any substantial gainful activity by reason of a medically determinable 11 physical or mental impairment which can be expected to result in death or which 12 has lasted or can be expected to last for a continuous period of at least twelve 13 months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. 14 § 423(d)(1)(A)). The impairment must render the claimant incapable of 15 performing the work he previously performed and incapable of performing any 16 other substantial gainful employment that exists in the national economy. Tackett 17 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 18 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 19 sequential evaluation process: 20 (1) 21 22 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. (2) Is the claimant’s alleged impairment sufficiently severe to limit 23 his ability to work? If not, the claimant is not disabled. If so, 24 proceed to step three. 25 26 27 28 1 More specifically, the ALJ determined that plaintiff: (i) was restricted to object oriented work in an environment with a small number of people; (ii) could not work with the public; and (iii) could only perform simple repetitive tasks, but not in a fast paced environment (e.g., rapid assembly line). (AR 15-16). 3 1 (3) Does the claimant’s impairment, or combination of 2 impairments, meet or equal an impairment listed in 20 C.F.R. 3 Part 404, Subpart P, Appendix 1? If so, the claimant is 4 disabled. If not, proceed to step four. 5 (4) Does the claimant possess the residual functional capacity to 6 perform his past relevant work? If so, the claimant is not 7 disabled. If not, proceed to step five. 8 (5) 9 Does the claimant’s residual functional capacity, when considered with the claimant’s age, education, and work 10 experience, allow him to adjust to other work that exists in 11 significant numbers in the national economy? If so, the 12 claimant is not disabled. If not, the claimant is disabled. 13 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 14 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 15 The claimant has the burden of proof at steps one through four, and the 16 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 17 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 18 (claimant carries initial burden of proving disability). 19 B. 20 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 21 benefits only if it is not supported by substantial evidence or if it is based on legal 22 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 23 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 24 (9th Cir. 1995)). Substantial evidence is “such relevant evidence as a reasonable 25 mind might accept as adequate to support a conclusion.” Richardson v. Perales, 26 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 27 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 28 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 4 1 To determine whether substantial evidence supports a finding, a court must 2 “‘consider the record as a whole, weighing both evidence that supports and 3 evidence that detracts from the [Commissioner’s] conclusion.’” Aukland v. 4 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 5 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 6 or reversing the ALJ’s conclusion, a court may not substitute its judgment for that 7 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 8 IV. DISCUSSION 9 A. A Remand is Appropriate Because the ALJ Erroneously Failed to 10 Address the Lay Testimony Supplied by Plaintiff’s Mother and 11 the Court Cannot Find That Such Error Was Harmless 12 Plaintiff contends that a reversal or remand is appropriate because the ALJ 13 failed adequately to address the testimony supplied by plaintiff’s mother and to 14 provide adequate reasons for rejecting such evidence. The Court agrees. As this 15 Court cannot find that the ALJ’s error was harmless, a remand is warranted. 16 17 1. Pertinent Facts On January 27, 2009, at the administrative hearing, plaintiff testified 18 regarding his symptoms and limitations. (AR 25-32, 37-47). He stated, inter alia, 19 that he: (i) had been beaten and tortured by unnamed individuals for 20 approximately two to three hours and then dropped off at a park where he went to 21 a neighbor and called his mother for help (AR 38-40); (ii) was told by the 22 attackers, who were never caught, that they would kill him if he “ever told 23 anybody” (AR 38); (iii) suffered serious injuries from the attack (i.e. broken nose, 24 saw cut to the wrist, and burns on his leg from a torch) (AR 39); (iv) used to be 25 very social but after the attack, became very paranoid, and felt “just in a hole, 26 sitting there,” and was constantly “watching [his] back” in public out of fear that 27 someone might still want to harm him (AR 38, 41); (v) had difficulty with 28 concentration and memory, and was easily distracted as a result of the attack (AR 5 1 27, 37, 41, 43); (vi) was more polite, tolerant and nice to people due to the attack 2 (AR 40); (vii) felt tired and had “a lot of mood swings” from his medication (AR 3 42-44); (viii) last used “street drugs” in July of 2008 including marijuana and 4 “speed,” but did not have a drinking problem that would keep him from working 5 (AR 28, 32). 6 At the January 27, 2009 administrative hearing, plaintiff’s mother testified, 7 inter alia, as follows: (i) after he was attacked, plaintiff had actually been found at 8 4:30 a.m. bleeding and unconscious on the side of the road (AR 47-48); (ii) when 9 he awoke, plaintiff had told the man who found him to not call the police because 10 his attackers had threatened to kill plaintiff’s family (AR 48); (iii) plaintiff had 11 also suffered “multiple facial fractures,” round blister marks on his legs (from 12 being placed by his attackers in a freezer for an undetermined period of time), “a 13 frontal lobe brain injury,” a “huge laceration” over his eye, multiple head 14 contusions from being hit “repeatedly with the back of a gun,” and swastika marks 15 carved with a knife on the back of each of his thighs (AR 48-49); (iv) two days 16 after the attack, plaintiff and his family moved away from the area out of fear for 17 plaintiff’s safety (AR 50); (v) Dr. Cameron Johnson at Loma Linda Behavioral 18 Medical Center “discovered that [plaintiff] had a frontal lobe brain injury that 19 coincided with [plaintiff’s] behavior that could be misinterpreted for doing drugs” 20 (AR 50); (vi) based on an assessment in July 2008, plaintiff had been told he was 21 “not ready for any gainful employment” (AR 51); (vii) in the two years and three 22 months preceding the administrative hearing, plaintiff had been hospitalized 23 overnight “over a dozen times” for mental health reasons (AR 51); (viii) only 24 “some” of the hospitalizations were due to “drug-related incidences” (AR 51-52); 25 (ix) plaintiff had not experienced mental health problems prior to being attacked 26 (AR 52); (x) plaintiff had not improved in the prior two years, but was “more 27 agitated” than previously, was short-tempered, paranoid, and suicidal, became 28 angry/frustrated “very easily,” and had auditory hallucinations, difficulty 6 1 concentrating, and difficulty completing what he started (AR 52-54); and (xi) 2 plaintiff had nightmares and erratic sleeping patterns due to his medication (AR 3 57). 4 At the administrative hearing, Dr. Joseph Malancharuvil testified, in short, 5 that when plaintiff was using drugs he remained “totally nonfunctional,” but when 6 not using drugs, plaintiff suffered only mild limitations that would not prevent him 7 from working. (AR 19, 32-35). Dr. Malancharuvil also testified that trauma to 8 plaintiff’s brain was not the cause of “any significant behavioral or affective 9 disorder.” (AR 36). 10 The ALJ gave the testifying medical expert’s opinions “considerable weight 11 in reaching a conclusion as to [plaintiff’s] residual functional capacity.” (AR 19). 12 As for the lay testimony, the ALJ stated only that “[plaintiff’s] mother’s testimony 13 confirmed much of [plaintiff’s] testimony.” (AR 16). 14 15 2. Pertinent Law Lay testimony as to a claimant’s symptoms is competent evidence that an 16 ALJ must take into account, unless he expressly determines to disregard such 17 testimony and gives reasons germane to each witness for doing so. Stout, 454 18 F.3d at 1056 (citations omitted); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 19 2001); see also Robbins, 466 F.3d at 885 (ALJ required to account for all lay 20 witness testimony in discussion of findings) (citation omitted); Regennitter v. 21 Commissioner of Social Security Administration, 166 F.3d 1294, 1298 (9th Cir. 22 1999) (testimony by lay witness who has observed claimant is important source of 23 information about claimant’s impairments); Nguyen v. Chater, 100 F.3d 1462, 24 1467 (9th Cir. 1996) (lay witness testimony as to claimant’s symptoms or how 25 impairment affects ability to work is competent evidence and therefore cannot be 26 disregarded without comment) (citations omitted); Sprague v. Bowen, 812 F.2d 27 1226, 1232 (9th Cir. 1987) (ALJ must consider observations of non-medical 28 sources, e.g., lay witnesses, as to how impairment affects claimant’s ability to 7 1 work). The standards discussed in these authorities appear equally applicable to 2 written statements. Cf. Schneider v. Commissioner of Social Security 3 Administration, 223 F.3d 968, 974-75 (9th Cir. 2000) (ALJ erred in failing to 4 consider letters submitted by claimant’s friends and ex-employers in evaluating 5 severity of claimant’s functional limitations). 6 In cases in which “the ALJ’s error lies in a failure to properly discuss 7 competent lay testimony favorable to the claimant, a reviewing court cannot 8 consider the error harmless unless it can confidently conclude that no reasonable 9 ALJ, when fully crediting the testimony, could have reached a different disability 10 determination.” Robbins, 466 F.3d at 885 (quoting Stout, 454 F.3d at 1055-56). 11 12 3. Analysis As the above-stated facts reflect, the testimony of plaintiff’s mother is, on 13 the whole, consistent with, and corroborates plaintiff’s testimony regarding his 14 symptoms and limitations. Plaintiff’s mother’s testimony was competent lay 15 evidence that the ALJ was required to take into account unless he expressly 16 determined to disregard it and gave reasons therefor. As plaintiff notes, the ALJ’s 17 residual functional capacity assessment implicitly rejects significant portions of 18 testimony from both plaintiff and his mother. The ALJ erred in not providing any 19 reasons for rejecting such portions of the mother’s testimony. 20 The Court cannot conclude that this error was harmless because it cannot 21 “confidently conclude that no reasonable ALJ, when fully crediting the testimony, 22 could have reached a different disability determination.” Stout, 454 F.3d at 105523 56. If fully credited, plaintiff’s mother’s testimony substantially supports 24 plaintiff’s description of his symptoms and limitations, and thus could have caused 25 a reasonable ALJ to reach a different disability determination. Accordingly, this 26 Court cannot deem the ALJ’s failure to address the lay witness testimony supplied 27 by plaintiff’s mother harmless.2 28 2 Defendant suggests that because plaintiff’s mother’s testimony was largely consistent with plaintiff’s testimony, it should be discounted for the same reasons that the ALJ discounted (continued...) 8 1 V. CONCLUSION3 2 For the foregoing reasons, the decision of the Commissioner of Social 3 Security is reversed in part, and this matter is remanded for further administrative 4 action consistent with this Opinion.4 5 LET JUDGMENT BE ENTERED ACCORDINGLY. 6 DATED: October 5, 2010 7 _______________/s/__________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 (...continued) plaintiff’s testimony. (Defendant’s Motion at 9-10). Defendant also suggests that the ALJ “implicitly rejected the portion of plaintiff’s mother’s testimony that was inconsistent with the medical evidence.” (Defendant’s Motion at 9). While the ALJ may well have discounted plaintiff’s mother’s statements for such reasons, he did not so state in his decision, and the Court cannot so conclude on this record. This Court may not affirm the decision of an agency on a ground that the agency did not invoke in making its decision. See Stout, 454 F.3d at 1054 (“[T]he ALJ, not the district court is required to provide [rationale] for rejecting lay testimony.”) (citations omitted). 3 The Court need not, and has not adjudicated plaintiff’s other challenges to the ALJ’s decision – that the ALJ failed properly to consider a February 26, 2009 narrative report from an unidentified medical source and an October 5, 2007 conservatorship declaration from Dr. Cameron Johnson, one of plaintiff’s treating physicians – except insofar as to determine that a reversal and remand for immediate payment of benefits would not be appropriate. Nonetheless, on remand the ALJ may want to reassess such evidence (which appears to have been submitted after the administrative hearing, and thus was not reviewed by the testifying medical expert) and determine what, if any, impact it has on the disability determination. 4 When a court reverses an administrative determination, “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted). Remand is proper where, as here, additional administrative proceedings could remedy the defects in the decision. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). 9
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