Margaret Wurzinger v. Michael J Astrue, No. 5:2009cv02232 - Document 21 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi. IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision. (bem)
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Margaret Wurzinger 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 MARGARET WURZINGER, on behalf of RICHARD FARLEY, deceased, 13 Plaintiff, 14 15 v. 16 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 17 Defendant. 18 ) Case No. ED CV 09-2232 JCG ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) ) 19 20 I. 21 INTRODUCTION AND SUMMARY 22 On December 11, 2009, plaintiff Margaret Wurzinger, on behalf of her 23 deceased brother Richard Farley, ( Plaintiff ) filed a complaint against defendant 24 Michael J. Astrue ( Defendant ), the Commissioner of the Social Security 25 Administration, seeking review of a denial of disability insurance benefits ( DIB ) 26 and supplemental security income benefits ( SSI ). [Docket No. 3.] 27 On June 14, 2010, Defendant filed his answer, along with a certified copy of 28 the administrative record. [Docket Nos. 17, 18, 19.] Dockets.Justia.com 1 In sum, having studied, inter alia, the parties joint stipulation and the 2 administrative record, the Court concludes that the Administrative Law Judge 3 ( ALJ ) erred in failing to discuss the statements of a lay witness. The ALJ s lack of 4 analysis cannot be reconciled with Ninth Circuit precedent explaining that lay 5 witness testimony is competent evidence and cannot be disregarded without 6 comment. Accordingly, the Court remands this matter to the Commissioner in 7 accordance with the principles and instructions enunciated in this Memorandum 8 Opinion and Order. 9 II. 10 PERTINENT FACTUAL AND PROCEDURAL BACKGROUND 11 Plaintiff, who was 57 years old on the date of his alleged onset date, has a 12 high school equivalent education. (See Administrative Record ( AR ) at 12, 18, 65, 13 75.) 14 On January 18, 2007, Plaintiff filed for DIB. (AR at 12, 22, 65.) On March 2, 15 2007, Plaintiff filed for SSI. (Id. at 12.) In both applications, Plaintiff alleged that 16 he has been disabled since June 1, 2006 due to back problems, a right shoulder 17 injury, post-traumatic stress disorder, heart problems, shortness of breath, and an 18 unspecified mood disorder. (See id. at 12, 33, 69; Joint Stip. at 2.) 19 On November 19, 2008, Plaintiff was admitted to Loma Linda University 20 Medical Center where he died on November 23, 2008 from [c]ardiac arrest 21 secondary to septic shock with pneumonia and lung cancer. (AR at 249.) On or 22 about December 23, 2008, a Notice Regarding Substitution of Party Upon Death of 23 Claimant was filed by Plaintiff s sister Margaret Wurzinger. (Id. at 50-51.) 24 On March 3, 2009, Margaret Wurzinger, represented by counsel, appeared on 25 Plaintiff s behalf and testified at a hearing before an ALJ. (See AR at 290-300.) 26 The ALJ also heard testimony from Corinne Porter, a vocational expert ( VE ), and 27 Samuel Landau, M.D., a medical expert ( ME ). (Id.; see also id. at 12, 53-54, 5628 57.) 2 1 On July 20, 2009, the ALJ denied Plaintiff s request for benefits. (AR at 12- 2 20.) Applying the well-known five-step sequential evaluation process, the ALJ 3 found, at step one, that Plaintiff has not engaged in substantial gainful activity since 4 his alleged onset date. (Id. at 14.) 5 At step two, the ALJ found that Plaintiff suffers from severe impairments 6 consisting of ischemic heart disease, degenerative joint disease in back and in the 7 left shoulder. (AR at 14 (emphasis omitted).) 8 At step three, the ALJ determined that the evidence does not demonstrate that 9 Plaintiff s impairments, either individually or in combination, meet or medically 10 equal the severity of any listing set forth in the Social Security regulations.1/ (AR at 11 15.) The ALJ then assessed Plaintiff s residual functional capacity2/ ( RFC ) and 12 13 determined that he can perform medium work. (AR at 15.) Specifically, the ALJ 14 found that Plaintiff could: 15 lift and carry twenty-five pounds frequently and fifty pounds 16 occasionally, stand and walk six hours of an eight-hour workday 17 and sit six hours of an eight-hour workday. [Plaintiff] could 18 climb stairs, but he could not climb ladders, work at heights, or 19 balance. [Plaintiff] could stoop and bend occasionally. 20 [Plaintiff] could occasionally work above shoulder level on the 21 right. [Plaintiff] could not operate motorized equipment or work 22 23 24 1/ See 20 C.F.R. pt. 404, subpt. P, app. 1. 2/ Residual functional capacity is what a claimant can still do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 26 n. 5 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant s 27 residual functional capacity. Massachi v. Astrue, 486 F.3d 1149, 1151 n. 2 (9th 28 Cir. 2007). 3 1 around unprotected machinery[.] 2 (Id. at 15-16 (emphasis omitted).) 3 The ALJ found, at step four, that Plaintiff lacks the ability to perform his past 4 relevant work as a plumber. (AR at 18.) 5 At step five, based on Plaintiff s RFC and the VE s testimony, the ALJ found 6 that there are jobs that exist in significant numbers in the national economy that 7 [Plaintiff] can perform, including hand packer, sandwich maker, and cook s helper. 8 (AR at 18-19 (emphasis omitted).) Thus, the ALJ concluded that Plaintiff was not 9 suffering from a disability as defined by the Act. (Id. at 12, 19.) 10 Margaret Wurzinger filed a timely request for review of the ALJ s decision, 11 which was denied by the Appeals Council. (AR at 4-6, 7.) The ALJ s decision 12 stands as the final decision of the Commissioner. 13 III. 14 STANDARD OF REVIEW 15 This Court is empowered to review decisions by the Commissioner to deny 16 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 17 Administration must be upheld if they are free of legal error and supported by 18 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001, as 19 amended Dec. 21, 2001). If the court, however, determines that the ALJ s findings 20 are based on legal error or are not supported by substantial evidence in the record, 21 the court may reject the findings and set aside the decision to deny benefits. 22 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 23 242 F.3d 1144, 1147 (9th Cir. 2001). 24 Substantial evidence is more than a mere scintilla, but less than a 25 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such relevant 26 evidence which a reasonable person might accept as adequate to support a 27 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d 28 at 459. To determine whether substantial evidence supports the ALJ s finding, the 4 1 reviewing court must review the administrative record as a whole, weighing both 2 the evidence that supports and the evidence that detracts from the ALJ s 3 conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be affirmed 4 simply by isolating a specific quantum of supporting evidence. Aukland, 257 F.3d 5 at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the 6 evidence can reasonably support either affirming or reversing the ALJ s decision, 7 the reviewing court may not substitute its judgment for that of the ALJ. Id. 8 (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 9 IV. 10 ISSUES PRESENTED 11 Three disputed issues are presented for decision here: 12 1. whether the ALJ properly considered whether Plaintiff s impairments 13 met or equaled listing 4.04, (see Joint Stip. at 3-8, 9-10); 14 2. whether the ALJ properly held that Plaintiff could perform the jobs of 15 hand packer, sandwich maker and cook s helper, (id. at 10-15, 16-17); and 16 3. whether the ALJ properly considered the lay witness testimony of 17 Plaintiff s friend. (Id. at 17-20, 22.) 18 Under the circumstances here, the Court finds the issue of the ALJ s 19 assessment of Plaintiff s lay witness s statements to be dispositive of this matter, and 20 declines to substantively address the remaining issues. 21 V. 22 DISCUSSION AND ANALYSIS 23 A. Lay Witness Testimony 24 Plaintiff contends that [i]n his decision, the ALJ completely ignored [the 25 Third Party Function Report of Maria Paulina Soares ( Ms. Soares ) and] . . . did not 26 indicate if he accepted or rejected plaintiff s friend s testimony nor did he give 27 germane reasons for rejecting this testimony. (Joint Stip. at 19.) Plaintiff argues 28 that plaintiff s friend lived in a house right next to him and saw him on a daily 5 1 basis. Thus, she would clearly have the ability to discuss his limitations and 2 symptoms[.] (Id.) 3 1. Comment 4 5 Lay Witness Testimony Cannot Be Disregarded Without [L]ay testimony as to a claimant s symptoms or how an impairment affects 6 ability to work is competent evidence and therefore cannot be disregarded without 7 comment. Stout v. Commissioner, 454 F.3d 1050, 1053 (9th Cir. 2006) (internal 8 quotation marks, ellipses and citation omitted) (italics in original); see Smolen v. 9 Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); see also 20 C.F.R. §§ 404.1513(d)(4) 10 (explaining that Commissioner will consider evidence from non-medical 11 sources[,] including spouses, parents and other caregivers, siblings, other relatives, 12 friends, neighbors, and clergy[,] in determining how a claimant s impairments 13 affect his or her ability to work) & 416.913(d)(4) (same). 14 The ALJ may only discount the testimony of lay witnesses if he provides 15 specific reasons that are germane to each witness. Dodrill v. Shalala, 12 F.3d 915, 16 919 (9th Cir. 1993); accord Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) ( Lay 17 testimony as to a claimant s symptoms is competent evidence that an ALJ must take 18 into account, unless he or she expressly determines to disregard such testimony and 19 gives reasons germane to each witness for doing so. ). 20 Finally, where the ALJ s error lies in a failure to properly discuss competent 21 lay testimony favorable to the claimant, a reviewing court cannot consider the error 22 harmless unless it can confidently conclude that no reasonable ALJ, when fully 23 crediting the testimony, could have reached a different disability determination. 24 Stout, 454 F.3d at 1056. 25 26 2. The ALJ Failed to Discuss the Lay Witness Testimony The ALJ failed to discuss or otherwise reject the lay witness statements of Ms. 27 Soares. The Court cannot find the error harmless. Three reasons guide this 28 determination. 6 1 First, the record is clear that the ALJ did not discuss the third-party statements 2 of Ms. Soares. (See AR at 17 (ALJ citing to Exhibit 4E, which was Ms. Soares 3 Third Party Report, in discounting Plaintiff s credibility), 86-93; see generally id. at 4 12-20.) Accordingly, the ALJ erred. See Stout, 454 F.3d at 1054 ( [T]he ALJ s 5 decision wholly fails to mention [the testimony of two lay witnesses] about how 6 Stout s impairments affect his ability to work. Therefore, the ALJ erred. ); Robbins 7 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006) ( It is uncontested that the 8 ALJ erred by failing to account for the August 1998 testimony of Robbins s son 9 Rodney in which Rodney offered eyewitness evidence supporting his father s claims 10 as to the functional limitations and severity of pain. As the Commissioner concedes, 11 the ALJ is required to account for all lay witness testimony in the discussion of his 12 or her findings. ). 13 Second, Defendant contends that [b]ased, in part, on Ms. Soares report of 14 Plaintiff s daily activities, the ALJ determined that Plaintiff s allegations were not 15 totally credible. (Joint Stip. at 21.) Defendant implies that the ALJ accepted Ms. 16 Soares lay witness testimony. Defendant s point is not well-taken. 17 The Court fails to see how the ALJ s negative credibility determination of 18 Plaintiff relieves him of his duty to account for Ms. Soares testimony regarding how 19 Plaintiff s impairments affect his ability to work. Stout, 454 F.3d at 1054. 20 In any event, assuming arguendo that the ALJ accepted Ms. Soares lay 21 witness testimony as demonstrated by his rejection of Plaintiff s credibility based 22 partly on her statements, the ALJ s conclusion is not supported by substantial 23 evidence. Contrary to Defendant s assertion, Ms. Soares statements support 24 Plaintiff s credibility. In her Third Party Report, completed on April 28, 2007, Ms. 25 Soares indicated that Plaintiff was living in a guest room on the first floor of her 26 home. (AR at 86-93.) Ms. Soares stated that she had to ask him to bathe more 27 often since he used to smell very bad and Plaintiff cut his hair only on her 28 insistence. (Id. at 87.) In fact, Ms. Soares reported that she had to remind Plaintiff 7 1 to shower, change his clothes, and shave. (Id. at 88.) 2 While Ms. Soares reported that Plaintiff does small to medium house repairs 3 for her, she also admitted, it takes him weeks to finish if not having to [make the] 4 repair again. (AR at 88.) Ms. Soares indicated that Plaintiff has difficulty 5 kneeling, lifting, bending, walking, hearing, climbing stairs, following instructions, 6 concentrating, understanding, and completing tasks. (Id. at 91.) 7 Further, in a letter submitted to the Social Security Administration dated 8 December 31, 2007, Ms. Soares wrote that she met Plaintiff when she realized 9 [Plaintiff] was living in his truck parked on [her] property. . . [and] offered him a 10 small room down stairs to live in because of his homeless condition and [the] 11 heavy winter[.] (AR at 111.) Ms. Soares reported that Plaintiff has severe 12 memory impairment in addition to physical illnesses and had suffered from two 13 major heart attacks. (Id.) She stated that he also has severe pain on his knee and 14 back[.] (Id.) 15 Given Ms. Soares statements regarding Plaintiff s ability to complete tasks, 16 among other impairments, the Court cannot confidently conclude that no reasonable 17 ALJ could have reached a different disability determination if the lay witness 18 statements had been fully credited. Stout, 454 F.3d at 1056. 19 Third, Defendant argues that Plaintiff s complaints are not supported by the 20 objective medical evidence. (See Joint Stip. at 21.) However, the Court s review is 21 limited to the reasons actually provided by the ALJ in his decision and he did not 22 rely on this reason in discounting Ms. Soares testimony. In the end, the ALJ did not 23 provide any reasons, let alone a legitimate reason germane to Ms. Soares, for 24 discounting her lay witness testimony. See Orn v. Astrue, 495 F.3d 625, 630 (9th 25 Cir. 2007) ( We review only the reasons provided by the ALJ in the disability 26 determination and may not affirm the ALJ on a ground upon which he did not 27 rely. ); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) ( We are constrained 28 to review the reasons the ALJ asserts[ and i]t was error for the district court to affirm 8 1 the ALJ s . . . decision based on evidence that the ALJ did not discuss. ) (citing SEC 2 v. Chenery Corp., 332 U.S. 194, 196 (1947)). 3 VI. 4 REMAND IS APPROPRIATE This Court has discretion to remand or reverse and award benefits. McAllister 5 6 v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989, as amended Oct. 19, 1989). Where no 7 useful purpose would be served by further proceedings, or where the record has been 8 fully developed, it is appropriate to exercise this discretion to direct an immediate 9 award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); 10 Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000, as amended May 4, 2000), 11 cert. denied, 531 U.S. 1038 (2000). Where there are outstanding issues that must be 12 resolved before a determination can be made, and it is not clear from the record that 13 the ALJ would be required to find plaintiff disabled if all the evidence were properly 14 evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; Harman, 211 15 F.3d at 1179-80. Here, remand is required because the ALJ erred in failing to properly address 16 17 the lay witness statements offered by Plaintiff s friend.3/ On remand, the ALJ shall 18 consider Ms. Soares lay witness statements and, if he decides to reject any or all of 19 her statements, he must provide reason(s) that are germane to Ms. Soares. Further, 20 the ALJ shall then proceed through steps three through four and, with the assistance 21 of a VE, reassess his step five determination.4/ 22 23 3/ In light of the Court s remand instructions, it is unnecessary for the Court to 24 address Plaintiff s remaining contentions. (See Joint Stip. at 3-8, 9-10, 10-15, 1625 17.) 4/ Although the Court declines to address Plaintiff s claim regarding the ALJ s step five determination, the Court notes that the VE s testimony appears to be 27 inconsistent with the Dictionary of Occupational Titles ( DOT ) and does not 28 comport with the ALJ s RFC assessment restricting Plaintiff from work around 26 9 1 Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 2 REVERSING the decision of the Commissioner denying benefits and 3 REMANDING the matter for further administrative action consistent with this 4 decision. 5 6 7 Dated: March 30, 2011 8 ___________________________ Hon. Jay C. Gandhi United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 unprotected machinery. (Compare AR at 18-19, 299 with DOT 920.587-0018, 24 1991 WL 687916 (description of hand packager occupation); DOT 317.664-010, 1991 WL 672749 (description of sandwich maker occupation); DOT 316.687-010, 25 1991 WL 672752 (description of cook s helper occupation).) Accordingly, to the 26 extent there are any inconsistencies at step five between the VE s testimony and the DOT, on remand, the ALJ shall obtain a reasonable explanation for any apparent 27 conflict. See Massachi, 486 F.3d at 1152-53. 28 10
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