Schwartz v. Colvin (previously Astrue), No. 2:2013cv00045 - Document 21 (E.D. Wash. 2013)
Court Description: ORDER granting 15 Plaintiff's Motion for Summary Judgment. 19 Defendant's Motion for Summary Judgment is denied. Signed by Magistrate Judge John T. Rodgers. (KW, Case Administrator)
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1 2 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 4 5 JORDAN PATRICK SCHWARTZ, Plaintiff, 6 v. 7 CAROLYN W. COLVIN, 8 Commissioner of Social Security, 9 Defendant. 10 No. CV-13-45-JTR ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 11 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 12 No. 15, 19. Attorney David L. Lybbert represents Jordan P. Schwartz (Plaintiff); 13 Special Assistant United States Attorney Gerald J. Hill represents the 14 Commissioner of Social Security (Defendant). The parties have consented to 15 proceed before a magistrate judge. ECF No. 6. After reviewing the administrative 16 record and briefs filed by the parties, the court GRANTS Plaintiff’s Motion for 17 Summary Judgment and DENIES Defendant’s Motion for Summary Judgment. JURISDICTION 18 19 On August 27, 2009, Plaintiff filed an application for Social Security 20 Supplemental Income, alleging disability beginning May 1, 2008. Tr. 20; 128. 21 Plaintiff’s claim was denied initially and on reconsideration, and he requested a 22 hearing before an administrative law judge (ALJ). Tr. 20; 80-111. A hearing was 23 held on October 18, 2011. Tr. 41. At the hearing, medical expert Ellen Rozenfeld, 24 Ed.M., Psy.D., vocational expert Diane Kramer, and Plaintiff, who was represented 25 by counsel, appeared and testified. Tr.41-79. ALJ Marie Palachuk presided. Tr. 26 41. The ALJ denied benefits on November 23, 2011. Tr. 20-31. The Appeals 27 Council denied review. Tr. 1-3. The instant matter is before this court pursuant to 28 42 U.S.C. § 405(g). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 1 1 STATEMENT OF THE CASE 2 The facts of the case are set forth in detail in the transcript of proceedings 3 and are briefly summarized here. At the time of the hearing, Plaintiff was 24 years 4 old, and living in his parents’ home. Tr. 52; 67. He had attended four years of 5 high school, but had not earned enough credits to graduate. 6 Subsequently, Plaintiff unsuccessfully attempted to earn a GED. Tr. 53. Tr. 52-53. 7 Plaintiff has worked brief, part-time jobs at restaurants, a tire store, a cherry 8 picking company, and at a Target store. Tr. 54-63. Recently, Plaintiff volunteered 9 at the Humane Society and was ultimately offered a full-time position, but he 10 declined because he was convinced his anxiety would prevent him from being able 11 to sustain full-time work. Tr. 61-62. Plaintiff explained that when he worked as a 12 volunteer, he was not anxious because he knew he could decline to do a task, and 13 he knew he did not have to return the next day to work a full day. Tr. 62-63. He 14 testified that while volunteering at the Humane Society, at times his anxiety 15 symptoms required him to abruptly leave: 16 17 18 19 20 21 22 23 A lot of times it was when they needed help with doing bigger stuff, not just – because I would go there and maybe wash a dog, you know, feed them, clean out kennels and stuff like that – other stuff. And then they’d ask me to do other stuff, and I would come up with – at this point, now I can look back – dumb excuses to why I had to leave. And I would tell them, and they’d be, like, all right, well come back when you can. And I’d leave and maybe come back a couple days later. Tr. 63. 24 Plaintiff said that when he works at a full-time job, he experiences anxiety 25 every day. Tr. 54. He said during his last attempt at full-time work, every 26 morning anxiety would “take over,” he was unable to “think right,” and he could 27 not leave the house due to several fears. Tr. 55. 28 worried about making mistakes, so much that he was unable to remember the ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 2 Once at work, he constantly 1 procedures he was supposed to follow. Tr. 55-57. Plaintiff explained that when 2 confronted with a new situation, such as meeting a new person, he typically 3 experiences a panic attack. Tr. 66. He said his depression symptoms kept him 4 from leaving his house, made him avoid interaction with people and neglect 5 personal hygiene. Tr. 66-67. 6 7 8 9 10 11 12 13 14 15 16 17 18 STANDARD OF REVIEW In Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), the court set out the standard of review: A district court’s order upholding the Commissioner’s denial of benefits is reviewed de novo. Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000). The decision of the Commissioner may be reversed only if it is not supported by substantial evidence or if it is based on legal error. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put another way, substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational interpretation, the court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 19 20 The ALJ is responsible for determining credibility, resolving conflicts in 21 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 22 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, 23 although deference is owed to a reasonable construction of the applicable statutes. 24 McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). 25 It is the role of the trier of fact, not this court, to resolve conflicts in 26 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one 27 rational interpretation, the court may not substitute its judgment for that of the 28 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 3 1 (9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will 2 still be set aside if the proper legal standards were not applied in weighing the 3 evidence and making the decision. Brawner v. Secretary of Health and Human 4 Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence exists to 5 support the administrative findings, or if conflicting evidence exists that will 6 support a finding of either disability or non-disability, the Commissioner’s 7 determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th 8 Cir. 1987). 9 10 SEQUENTIAL PROCESS The Commissioner has established a five-step sequential evaluation process 11 for determining whether a person is disabled. 12 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one 13 through four, the burden of proof rests upon the claimant to establish a prima facie 14 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This 15 burden is met once a claimant establishes that a physical or mental impairment 16 prevents him from engaging in his previous occupation. 17 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the 18 ALJ proceeds to step five, and the burden shifts to the Commissioner to show that 19 (1) the claimant can make an adjustment to other work; and (2) specific jobs exist 20 in the national economy which claimant can perform. Batson v. Commissioner of 21 Social Sec. Admin., 359 F.3d 1190, 1193-94 (2004). If a claimant cannot make an 22 adjustment to other work in the national economy, a finding of “disabled” is made. 23 20 C.F.R. §§ 404.1520(a)(4)(I-v), 416.920(a)(4)(I-v). 24 20 C.F.R. §§ 404.1520(a), 20 C.F.R. §§ ADMINISTRATIVE DECISION 25 At step one, ALJ Palachuk found that Plaintiff had not engaged in 26 substantial gainful activity since August 27, 2009. Tr. 22. At step two, she found 27 Plaintiff had the severe impairments of attention deficit hyperactivity disorder, 28 math learning disorder, adjustment disorder, and general anxiety disorder. Tr. 22. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 4 1 At step three, the ALJ determined that Plaintiff does not have an impairment or 2 combination of impairments that meets or medically equals one of the listed 3 impairments in 20 C.F.R., Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 4 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). 5 determined that Plaintiff has the residual functional capacity (“RFC”) to perform a 6 full range of work at all exertional levels. Tr. 25. However, the ALJ noted 7 Plaintiff has additional mental limitations: 8 9 10 11 12 13 14 15 16 Tr. 23. The ALJ [C]laimant has the ability to perform simple, routine, and repetitive tasks involving up to three step commands. However, the claimant would be limited from none to minimal contact with the general public. The claimant would also be limited to only superficial contact with coworkers, and would essentially be isolated with only occasional supervision and should not be in close physical proximity to coworkers. The claimant would further require additional time to adapt to changes in the work setting or work routine, and would work best in a predictable/routine environment with little change. The claimant is also able to sustain attention and concentration for the 2 hour intervals generally required between regularly scheduled breaks. 17 Tr. 25. At step four, the ALJ found that Plaintiff could perform past relevant work 18 as animal attendant, cherry packer, and dishwasher/kitchen helper. 19 Additionally, the ALJ concluded that, based upon the vocational expert’s 20 testimony, and notwithstanding Plaintiff’s limitations, and considering his age, 21 education, work experience, and residual functional capacity, he is able to perform 22 the representative occupations such as laundry worker II, industrial cleaner, and 23 production assembler. Tr. 31. The ALJ concluded that Plaintiff was not disabled 24 as defined by the Social Security Act. Tr. 31. 25 ISSUES Tr. 29. 26 The question presented is whether substantial evidence exists to support the 27 ALJ's decision denying benefits and, if so, whether that decision is based on proper 28 legal standards. Plaintiff contends that the ALJ erred by (1) improperly rejecting ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 5 1 medical opinions; (2) determining Plaintiff had little credibility; (3) improperly 2 rejecting lay witness testimony; (4) failing to conduct an adequate step four 3 analysis; and (5) failing to identify specific jobs that Plaintiff could perform. 4 ECF No. 15 at 12. 5 6 DISCUSSION A. Medical Opinions 7 Plaintiff contends that the ALJ improperly weighed the opinions from both 8 Dr. Rowe and Dr. Weick. ECF No. 15 at 14-19. The court agrees. In weighing 9 medical source opinions in Social Security cases, the Ninth Circuit distinguishes 10 among three types of physicians: (1) treating physicians, who actually treat the 11 claimant; (2) examining physicians, who examine but do not treat the claimant; and 12 (3) non-examining physicians, who neither treat nor examine the claimant. Lester 13 v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally, more weight should be 14 given to the opinion of a treating physician than to the opinions of non-treating 15 physicians. Id. 16 given greater weight than that of a non-examining physician. Lester, 81 F.3d at 17 830. Similarly, an examining physician's opinion generally must be 18 An ALJ must provide clear and convincing reasons for rejecting the 19 uncontradicted opinion of an examining physician, and “specific and legitimate” 20 reasons supported by substantial evidence in the record, for rejecting a contradicted 21 opinion of an examining physician. Lester, 81 F.3d at 830-31. In other words, an 22 ALJ may reject the opinion of an examining physician, if contradicted by a non- 23 examining physician, by providing "specific and legitimate reasons that are 24 supported by substantial evidence in the record." Moore v. Comm'r of the Soc. Sec. 25 Admin, 278 F.3d 920, 924 (9th Cir. 2002), citing Lester, 81 F.3d at 830-31. 26 1. Thomas Rowe, Ph.D. 27 Dr. Rowe examined Plaintiff in September 2007, and again four years later 28 in October 2011. Tr. 193-99; 346-58. During the 2011 testing, Plaintiff’s MMPI-2 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 6 1 test results were of “questionable validity.” Tr. 352. Dr. Rowe stated that a 2 significant probability existed that Plaintiff “endorsed items inaccurately by 3 overreporting psychopathology.” Tr. 352. He explained that people with similar 4 validity scores are possibly experiencing severe distress but lack either the 5 interpersonal skills or the ability to alter their situation. Tr. 352. 6 Dr. Rowe also completed a 2011 Mental Medical Source Statement form, 7 and he assessed Plaintiff with three marked limitations in the ability to: (1) 8 maintain attention and concentration for extended periods; (2) complete a normal 9 workday and work week without interruptions from psychologically based 10 symptoms and to perform at a consistent pace without an unreasonable number and 11 length of rest periods; and (3) interact appropriately with the general public. Tr. 12 356. Dr. Rowe also assessed Plaintiff with nine moderate limitations, including his 13 ability to make simple work-related decisions, ask simple questions or request 14 assistance, and accept instructions and respond appropriately to criticism from 15 supervisors. Tr. 356-57. 16 The ALJ’s analysis related to the weight given to Dr. Rowe’s 2011 17 assessment consisted of a single sentence: “However, the undersigned gives little 18 weight to Dr. Rowe’s opinion with regard to the second evaluation because his 19 opinion is inconsistent with the objective evidence, Dr. Rozenfeld’s opinion, and 20 the claimant’s self-reported activities, which indicate that the claimant does not 21 have more than moderate limitations.” Tr. 28. 22 The ALJ’s reasons for rejecting Dr. Rowe’s opinion are neither “specific and 23 legitimate,” nor supported by the record, and thus rejection of Dr. Rowe’s 2011 24 evaluation was improper. See Lester, 81 F.3d at 830-31. 25 First, it is insufficient for an ALJ to reject the opinion of an examining 26 physician by merely stating, without more, that the opinion is inconsistent with 27 other evidence in the record. See Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 28 1988). Inconsistency between doctors' opinions does not allow the ALJ to simply ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 7 1 select one opinion based solely on the fact that an inconsistency exists, but instead 2 the ALJ must address, explain and resolve the conflicting evidence by assigning 3 weight to differing opinions based on cogent, specific, and legitimate reasons. 4 Morgan, 169 F.3d at 603; Reddick v. Chater, 157 F.3d 715, 722, 725 (9th Cir. 5 1998). 6 objective evidence. The ALJ failed to provide any analysis related to the “inconsistent” 7 Next, the ALJ improperly rejected Dr. Rowe’s opinion based upon 8 contradictory opinions from a non-examining physician who testified at the 9 hearing. “The contrary opinion of a non-examining medical expert does not alone 10 constitute a specific, legitimate reason for rejecting a treating or examining 11 physician's opinion." Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001), 12 citing Magallanes v. Bowen, 881 F.2d 747, 752 (9th Cir. 1989); see also Pitzer v. 13 Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 199) ("The nonexamining physicians' 14 conclusion, with nothing more, does not constitute substantial evidence, 15 particularly in view of the conflicting observations, opinions, and conclusions of an 16 examining physician."). 17 contradicted by the testimony from Dr. Rozenfeld, a non-examining physician, 18 does not constitute a specific and legitimate reason to reject Dr. Rowe’s opinion. 19 In the absence of other valid reasons for rejecting Dr. Rowe’s opinion, the ALJ 20 improperly rejected Dr. Rowe’s opinion based upon the opinions from Dr. 21 Rozenfeld. In this case, the fact that Dr. Rowe’s opinion was 22 Finally, the ALJ rejected Dr. Rowe’s opinion of Plaintiff’s limitations 23 because the limitations were contradicted by claimant’s self-reported activities. 24 Daily activities inconsistent with a doctor's opinions of limitations are a valid 25 reason to discount a physician's opinion. Stubbs-Danielson v. Astrue, 539 F.3d 26 1169, 1175 (9th Cir. 2008). 27 opinion evidence, the ALJ should provide “a detailed and thorough summary of the 28 facts and conflicting clinical evidence, stating his interpretation thereof, and However, when providing reasons for rejecting ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 8 1 making findings.” Reddick, 157 F.3d at 725. The ALJ failed to identify Plaintiff’s 2 activities that contradict Dr. Rowe’s assessment and, thus, the court is unable to 3 find that Plaintiff’s daily activities constitute a specific and legitimate reason to 4 reject Dr. Rowe’s opinion. 5 The ALJ failed to provide specific and legitimate reasons, supported by 6 substantial evidence, for rejecting the opinion of Dr. Rowe. In the absence of valid 7 reasons, the ALJ’s rejection of this opinion was error. 8 2. Mark Weick, M.Ed. 9 The record reveals Mark Weick, M.Ed., treated Plaintiff regularly beginning 10 in September 2009. Tr. 259-343. Mr. Weick wrote a letter dated August 8, 2011, 11 indicating that Plaintiff had “made significant progress,” but he continues to be, at 12 times, “severely impaired by anxiety and depression (including suicidal ideation 13 and despair), and [he] has difficulties in social relationships and communication.” 14 Tr. 344. Mr. Weick recommended Plaintiff “be approved for disability at this time, 15 pending hoped for outcomes of employability, amelioration of paralyzing anxiety 16 and depression, and effective social skills.” Tr. 344. 17 The ALJ gave little weight to Dr. Weick’s opinion for three reasons: (1) 18 because he “did not provide any actual limitations or basis for his opinion, which 19 was only a conclusion of disability”; (2) his conclusion was inconsistent with his 20 own chart notes that indicated instances of Plaintiff reporting he was “doing well” 21 and his “functioning improved”; and (3) because “determinations of disability are 22 reserved to the Commissioner, and not treating sources.” Tr. 28. 23 The ALJ’s first reason for rejecting Mr. Weick’s opinion is contradicted by 24 the August 8, 2011, letter. Tr. 344. Contrary to the ALJ’s assertion, the basis for 25 Mr. Weick’s opinion is provided within the letter and the accompanying treatment 26 notes. The letter identifies Plaintiff’s diagnoses (i.e., “paralyzing anxiety and 27 depression”), describes how his impairments manifest in symptoms (“difficulties in 28 social relationships and communication”; “suicidal ideation and despair”) and ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 9 1 indicates Mr. Weick’s opinion that Plaintiff cannot sustain employment. Tr. 344. 2 The ALJ’s assertion that the letter was merely a conclusion ignores the content of 3 the letter, as well as the accompanying treatment notes and, thus, does not 4 constitute a “specific and legitimate” reason to reject the opinion. 5 Next, the ALJ reasons that Mr. Weick’s opinion is entitled to little weight 6 because his chart notes indicate instances where Plaintiff is “doing well,” and his 7 functioning improved. Tr. 28. When analyzing mental impairments, an ALJ must 8 read individual chart notes “in context of the overall diagnostic picture.” Holohan 9 v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001). "[The fact that] a person who 10 suffers from . . . anxiety[] and depression makes some improvement does not mean 11 that the person's impairments no longer seriously affect her ability to function in a 12 workplace." 13 properly describe an individual's sustained ability to function. It should be viewed 14 as one point in time in the longitudinal picture of an individual impairment.” 15 DeLorme v. Sullivan, 924 F.2d 841, 851 (9th Cir. 1991), quoting SSR 83-15. Id. Moreover, “[a] single current examination may not always 16 Also, in evaluating whether the claimant satisfies the disability criteria, the 17 ALJ must evaluate the claimant's "ability to work on a sustained basis." 20 C.F.R. § 18 404.1512(a) . "Occasional symptom-free periods – and even the sporadic ability to 19 work – are not inconsistent with disability." Lester, 81 F.3d at 833. That a person 20 who suffers from severe panic attacks, anxiety, and depression “makes some 21 improvement does not mean that the person's impairments no longer seriously 22 affect her ability to function in a workplace.” Holohan, 246 F.3d at 1205, citing 23 Kellough v. Heckler, 785 F.2d 1147, 1153 (4th Cir. 1986) ("'Feels well' and 'normal 24 activity' must be read in context). The ALJ’s reliance upon isolated instances when 25 the Plaintiff indicated some improvement in functioning is misplaced. Considered 26 as a whole, the medical records indicate Plaintiff’s anxiety and depression 27 symptoms wax and wane, and the record does not support the ALJ’s conclusion 28 that Dr. Weick’s opinion is contradicted by his treatment records. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 10 1 Finally, the ALJ rejected Mr. Weick’s opinion because the “determinations 2 of disability are reserved to the Commissioner, and not treating sources.” Tr. 28. 3 In disability benefits cases, medical providers may render medical, clinical 4 opinions, or they may render opinions on the ultimate issue of disability - the 5 claimant's ability to perform work. Reddick, 157 F.3d at 725. While an ALJ is not 6 bound by the uncontroverted opinions of the claimant's medical providers on the 7 ultimate issue of disability, the ALJ cannot reject the opinions without providing 8 clear and convincing reasons. Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 9 1993). As a result, the ALJ may not reject Mr. Weick’s opinion simply because the 10 determination of disability belongs to the ALJ. In sum, none of the ALJ’s reasons 11 for rejecting Mr. Weick’s opinion is “specific and legitimate,” and supported by 12 substantial evidence, and thus the ALJ’s dismissal of this opinion was error. 13 B. Credibility 14 The ALJ found Plaintiff was not credible. Tr. 26. Plaintiff contends that the 15 ALJ erred by failing to identify the testimony that was not credible, and by failing 16 to identify the evidence that undermined the testimony. ECF No. 15 at 19. 17 The ALJ is responsible for determining credibility. Andrews, 53 F.3d at 18 1039. Unless affirmative evidence exists indicating that the claimant is 19 malingering, the ALJ's reasons for rejecting the claimant's testimony must be "clear 20 and convincing.” Lester, 81 F.3d at 834. The ALJ's findings must be supported 21 by specific, cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 22 1990). "General findings are insufficient; rather, the ALJ must identify what 23 testimony is not credible and what evidence undermines the claimant's 24 complaints." Reddick, 157 F.3d at 722, quoting Lester, 81 F.3d at 834. If objective 25 medical evidence exists of an underlying impairment, the ALJ may not discredit a 26 claimant's testimony as to the severity of symptoms merely because they are 27 unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d 341, 28 347-48 (9th Cir. 1991). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 11 1 To determine whether the claimant's testimony regarding the severity of the 2 symptoms is credible, the ALJ may consider ordinary techniques of credibility 3 evaluation, such as (1) the claimant's reputation for lying, prior inconsistent 4 statements concerning the symptoms, and other testimony by the claimant that 5 appears less than candid; (2) unexplained or inadequately explained failure to seek 6 treatment or to follow a prescribed course of treatment; and (3) the claimant's daily 7 activities. See, e.g., Fair v. Bowen, 885 F.2d 597, 602-04 (9th Cir. 1989); Bunnell, 8 947 F.2d at 346-47. 9 The reasons cited by the ALJ included Mr. Weick’s chart notes indicating an 10 instance of improved functioning, a particular day he reported he was “doing 11 well,” and one day he stated that his job “was going well.” Tr. 26. Also, the ALJ 12 cited one record where Plaintiff apparently told Mr. Weick that he believed he did 13 not apply himself. Tr. 26; 263. 14 As stated above, in analyzing mental impairments, the ALJ must read chart 15 notes in context. Holohan 246 F.3d at 1205. For the reasons stated above, the 16 ALJ’s reliance upon isolated improvements in functioning is misplaced. Plaintiff’s 17 experience of episodic improvement in his depression symptoms does not diminish 18 his credibility, but instead reflects the nature of mental impairments. See, e.g., 19 Taylor v. Comm'r of Soc. Sec., 659 F.3d 1228, 1234 (9th Cir. 2011) (ALJ erred in 20 holding instances where bi-polar claimant was able to function, when his alleged 21 disability involves attacks that wax and wane). 22 The ALJ also found significance in the fact that Plaintiff has volunteered for 23 the Humane Society for approximately one year, and was offered a job. Tr. 26. 24 The ALJ heavily relied upon the fact that Plaintiff has been offered and even 25 accepted other jobs as “evidence” that establishes Plaintiff’s “anxiety symptoms 26 are not as severe as alleged and that the claimant can retain and maintain 27 employment, especially when considering that the claimant worked for 28 approximately one year at the Humane Society ….” Tr. 26-27. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 12 1 The ALJ reasoned that because Plaintiff can perform sporadic volunteer 2 work for a few hours at a time, therefore Plaintiff can sustain full time work. This 3 reasoning is flawed. Social Security regulations define residual functional capacity 4 as the "maximum degree to which the individual retains the capacity for sustained 5 performance of the physical-mental requirements of jobs." 20 C.F.R. 404, Subpt. 6 P, App. 2 § 200.00(c). In evaluating whether a claimant satisfies the disability 7 criteria, the Commissioner must evaluate the claimant's "ability to work on a 8 sustained basis." 9 regulations further specify: "When we assess your physical abilities, we first assess 10 the nature and extent of your physical limitations and then determine your residual 11 functional capacity for work activity on a regular and continuing basis." Id. at § 12 404.1545(b). The Ninth circuit has noted that "occasional symptom-free periods - 13 and even the sporadic ability to work-are not inconsistent with disability." Lester, 14 81 F.3d at 833. 20 C.F.R. § 404.1512(a); Reddick, 157 F.3d at 724. The 15 The ALJ’s flawed assumption that permeates the decision is: Because 16 Plaintiff can sustain sporadic volunteer work – work that allows him to choose the 17 date and hours and allows him to change his mind about whether he can stay at 18 work or perform particular tasks – Plaintiff therefore can sustain the demands of 19 regular, full-time employment. The ALJ’s assumption, and its inherent flaw, is 20 illustrated in the ALJ’s questioning of Plaintiff: 21 22 23 24 25 26 27 28 ALJ: Mr. Schwartz, I also noted that you had been offered a job at the Humane Society and you turned it down. Yet you continued to volunteer there for a number of months. Why did you turn it down? CLMT: Oh. Once again, my anxiety would kick in. And basically, my mind is telling me that – it’s telling me all the bad things you’re going to do there. You’re going to get fired. You’re going to do this. And I told them that I couldn’t take the job because of those things. You know, I just – just my anxiety kicked in so much that I turned down the job. But I – ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 13 1 ALJ: Yet, you were volunteering there for months. It’s the same thing. You just weren’t getting paid. 2 CLMT: Yeah, see, that’s the thing is I never felt the anxiety kick in when I was just a volunteer. Maybe it’s because, maybe, I knew I could leave whenever I wanted, and I could show up whatever [sic] I wanted. But, you know, we [sic] me working there, I had to be there at a certain time. And I had to work all day, and then leave at a certain time and then be back the next day. Volunteering wasn’t like that, and that’s what I liked about it. 3 4 5 6 7 8 9 Tr. 61-62 (emphasis added). 10 The record contradicts the ALJ’s assumption that sporadic volunteering 11 requires the same capabilities as full-time, regular, paid work. Plaintiff’s volunteer 12 workday and workweek is dramatically different from a regular job that requires 13 all-day attendance despite panic attacks or “paralyzing anxiety.” While 14 volunteering allows Plaintiff to simply leave when he has an attack, full-time 15 regular employment would eliminate that flexible schedule. Under these 16 circumstances, the ALJ’s reliance upon Plaintiff’s ability to volunteer part-time is 17 not a persuasive reason for finding Plaintiff lacked credibility. 18 Both reasons supporting the ALJ’s credibility analysis failed to meet the 19 “clear and convincing” test, and thus the ALJ erred by concluding Plaintiff lacked 20 credibility. 21 C. Lay Witness 22 Plaintiff contends that the ALJ erred by rejecting the testimony from his 23 father about his inability to sustain employment. ECF No. 15 at 21-22. The ALJ 24 must consider statements of "non-medical sources" including spouses, parents, and 25 other relatives in determining the severity of a claimant's symptoms. 20 C.F.R. § 26 404.1513(d)(4); see also Stout v. Comm'r, 454 F.3d 1050, 1053 (9th Cir. 2006) ("In 27 determining whether a claimant is disabled, an ALJ must consider lay witness 28 testimony concerning a claimant's ability to do work."). As a general rule, "lay ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 14 1 witness testimony as to a claimant's symptoms or how an impairment affects ability 2 to work is competent evidence, and therefore cannot be disregarded without 3 comment." Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (emphasis and 4 internal citations omitted). To discount the testimony of a lay witness, the ALJ 5 must give specific, germane reasons for rejecting the opinion of the witness. 6 Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1999). 7 Plaintiff’s father, Robert Schwartz, testified that Plaintiff has worked with 8 the Department of Social and Health Services for people with disabilities in order 9 to get help in trying to find work. Tr. 69. Mr. Schwartz described how Plaintiff 10 struggled with the process to learn job interview skills, and how the program 11 director was concerned that Plaintiff would not be able to find employment due to 12 his anxiety and panic. Tr. 69. Mr. Schwartz also described Plaintiff’s debilitating 13 panic attacks and related how Plaintiff’s panicked behavior when he is employed. 14 Tr. 70-71. 15 16 17 18 19 20 21 22 In this case, the ALJ rejected testimony from Plaintiff’s father based upon the flawed assumption that Plaintiff simply refused to work full time: The undersigned gives little weight to Mr. Schwartz’s testimony because the evidence shows that the claimant has been able to retain employment, but has declined said employment. The evidence also shows that the claimant does have the mental ability and capacity to maintain employment, evidenced by the fact that the claimant worked as a volunteer at the Humane Society for approximately one year. Tr. 29. 23 For the reasons explained above, the ALJ’s sole reason for rejecting Mr. 24 Schwartz’s testimony is not a valid, germane reason. As such, the ALJ improperly 25 rejected the lay testimony.1 26 27 28 1 Plaintiff raised two remaining issues, but in light of this disposition, the court need not address those issues. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 15 1 CONCLUSION 2 Having reviewed the record and the ALJ's findings, the court concludes the 3 ALJ's decision is based on legal error, and requires remand. On remand, the ALJ 4 is directed to reevaluate the opinions from Dr. Rowe and Mr. Weick, and, if 5 necessary, provide legally sufficient reasons for rejecting these opinions and 6 identify with particularity the evidence supporting the reasons, as well as supply 7 legally sufficient reasons supporting the weight accorded to the other medical 8 source opinions. 9 credibility, and provide valid reasons supported by substantial evidence in Additionally, on remand the ALJ will reconsider Plaintiff’s 10 determining credibility. 11 testimony and provide valid reasons for the weight accorded to that evidence. The 12 decision is, therefore, REVERSED and the case is REMANDED for further 13 proceedings consistent with this opinion. Accordingly, 14 IT IS ORDERED: 15 1. Finally, on remand the ALJ will reconsider the lay 16 17 18 19 Plaintiff’s Motion for Summary Judgment, ECF No. 15, is GRANTED. 2. Defendant’s Motion for Summary Judgment, ECF No. 19, is DENIED. 3. An application for attorney fees may be filed by separate motion. The 20 District Court Executive is directed to file this Order and provide a copy to counsel 21 for Plaintiff and Defendant. Judgment shall be entered for Plaintiff, and the file 22 shall be CLOSED. 23 DATED December 31, 2013. 24 25 26 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT - 16
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