Corrissa Aurora Perez v. Nancy A. Berryhill, No. 2:2018cv00330 - Document 24 (C.D. Cal. 2018)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further proceedings consistent with this decision. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. (See document for further details). (mr)
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Corrissa Aurora Perez v. Nancy A. Berryhill Doc. 24 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CORRISSA AURORA PEREZ, Plaintiff, 12 13 14 15 CASE NO. CV 18-0330 SS v. MEMORANDUM DECISION AND ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 17 18 I. 19 INTRODUCTION 20 Corrissa 21 Aurora Perez (“Plaintiff”) brings this action 22 seeking to overturn the decision of the Acting Commissioner of 23 Social 24 application for Supplemental Security Income (“SSI”). 25 consented pursuant to 28 U.S.C. § 636(c) to the jurisdiction of 26 the undersigned United States Magistrate Judge. 27 13). For the reasons stated below, the decision of the Commissioner Security (the “Commissioner” or “Agency”) denying her The parties (Dkt. Nos. 11- 28 Dockets.Justia.com 1 is REVERSED, and this case is REMANDED for further administrative 2 proceedings consistent with this decision. 3 4 II. 5 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 6 7 To qualify for disability benefits, a claimant must 8 demonstrate a medically determinable physical or mental impairment 9 that prevents the claimant from engaging in substantial gainful 10 activity and that is expected to result in death or to last for a 11 continuous period of at least twelve months. 12 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). 13 The impairment must render the claimant incapable of performing 14 work 15 employment that exists in the national economy. 16 180 17 § 423(d)(2)(A)). previously F.3d performed 1094, 1098 or (9th any Cir. other 1999) Reddick v. Chater, substantial gainful Tackett v. Apfel, (citing 42 U.S.C. 18 benefits, an 20 Administrative Law Judge (“ALJ”) conducts a five-step inquiry. 20 21 C.F.R. §§ 404.1520, 416.920. 19 To decide if a claimant is entitled to The steps are: 22 23 (1) Is the claimant presently engaged in substantial gainful 24 activity? 25 not, proceed to step two. 26 (2) Is the If so, the claimant is found not disabled. claimant’s impairment 27 claimant is found not disabled. 28 three. 2 severe? If not, If the If so, proceed to step 1 (3) Does the claimant’s impairment meet or equal one of the 2 specific impairments described in 20 C.F.R. Part 404, 3 Subpart P, Appendix 1? 4 disabled. 5 (4) If so, the claimant is found If not, proceed to step four. Is the claimant capable of performing his past work? If 6 so, the claimant is found not disabled. 7 to step five. 8 (5) 9 Is the claimant able to do any other work? claimant is found disabled. 10 If not, proceed If not, the If so, the claimant is found not disabled. 11 12 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 13 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)- 14 (g)(1), 416.920(b)-(g)(1). 15 The claimant has the burden of proof at steps one through four 16 17 and the 18 Bustamante, 262 F.3d at 953-54. 19 affirmative duty to assist the claimant in developing the record 20 at every step of the inquiry. 21 claimant meets his or her burden of establishing an inability to 22 perform past work, the Commissioner must show that the claimant 23 can perform some other work that exists in “significant numbers” 24 in 25 residual functional capacity (“RFC”), age, education, and work 26 experience. 27 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 28 may do so by the testimony of a vocational expert (“VE”) or by the Commissioner national has economy, the burden of at step five. Additionally, the ALJ has an Id. at 954. taking proof into If, at step four, the account the claimant’s Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 3 The Commissioner 1 reference to the Medical-Vocational Guidelines appearing in 20 2 C.F.R. Part 404, Subpart P, Appendix 2 (commonly known as “the 3 grids”). 4 When a claimant has both exertional (strength-related) and non- 5 exertional limitations, the Grids are inapplicable and the ALJ must 6 take the testimony of a VE. 7 Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 8 1988)). Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). Moore v. Apfel, 216 F.3d 864, 869 (9th 9 10 III. 11 THE ALJ’S DECISION 12 Plaintiff was awarded SSI benefits as a child starting March 13 14 25, 2008. (AR 76). Under § 1614(a)(3)(H) of the Social Security 15 Act, Plaintiff’s disability status was reconsidered under adult 16 standards upon turning eighteen.1 17 sequential 18 disability at age eighteen. 19 the ALJ found that Plaintiff’s learning disorder and borderline 20 intellectual functioning are severe impairments. 21 three, 22 impairment or combination of impairments that meet or medically 23 equal the severity of any of the listings 24 regulations. evaluation the ALJ process determined is Step one of the five-step not used for 20 C.F.R. § 416.987(b). that Plaintiff redetermining At step two, (AR 22). does not At step have enumerated in the (AR 22-23). 25 26 27 1 28 Plaintiff turned eighteen on July 21, 2013. 4 an (AR 22). 1 The ALJ then assessed Plaintiff’s RFC and concluded that she 2 can perform a full range of work at all exertional levels but with 3 the following nonexertional limitations: Plaintiff cannot perform 4 “work involving more than simple tasks; any work involving more 5 than occasional contact with coworkers; and any work involving 6 public contact.” 7 Plaintiff has no past relevant work. (AR 26). Based on Plaintiff’s 8 RFC, age, education, work experience, and the VE’s testimony, the 9 ALJ determined at step five that there are jobs that exist in 10 significant numbers in the national economy that Plaintiff can 11 perform, including 12 feeder. (AR 26-27). 13 disability ended on November 1, 2013, and she has not been disabled 14 since that date. (AR 23). factory At step four, the ALJ found that helper, wall cleaner, and machine Accordingly, the ALJ found that Plaintiff’s (AR 27). 15 16 IV. 17 STANDARD OF REVIEW 18 19 Under 42 U.S.C. § 405(g), a district court may review the “[The] court may set 20 Commissioner’s decision to deny benefits. 21 aside the Commissioner’s denial of benefits when the ALJ’s findings 22 are based on legal error or are not supported by substantial 23 evidence in the record as a whole.” 24 1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); see 25 also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing 26 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). 27 28 5 Aukland v. Massanari, 257 F.3d “Substantial evidence is more than a scintilla, but less than 1 2 a preponderance.” Reddick, 157 F.3d at 720 (citing Jamerson v. 3 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 4 evidence which a reasonable person might accept as adequate to 5 support a conclusion.” 6 evidence supports a finding, the court must “‘consider the record 7 as a whole, weighing both evidence that supports and evidence that 8 detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d 9 at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. (Id.). It is “relevant To determine whether substantial 10 1993)). If the evidence can reasonably support either affirming 11 or reversing that conclusion, the court may not substitute its 12 judgment for that of the Commissioner. 13 21 (citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 14 1457 (9th Cir. 1995)). Reddick, 157 F.3d at 720- 15 16 V. 17 DISCUSSION 18 19 A. The ALJ’s Reasons for Discrediting Plaintiff’s Subjective Symptom Testimony Were Not Supported By Substantial Evidence 20 21 Plaintiff testified that she does not drive and cannot use 22 23 public transportation by herself because she gets lost. 24 46). 25 Plaintiff 26 frequently needs to go the office to direct or guide her around 27 campus. 28 through a note taker in class, who also helps Plaintiff open the She always goes outside with a family member. takes graphic (AR 46, 49). arts classes at Pierce (AR 45(AR 47). College but The College provides Plaintiff assistance 6 1 graphics software, guidance by counselors, and extra time to take 2 tests. 3 open the emails sent by the College. (AR 46-47, 49, 51). Her parents need to help Plaintiff (AR 50). 4 5 Plaintiff testified that she has trouble handling money. 6 48). 7 but it does not “sink in.” 8 simple chores at home without assistance. (AR She has tried to learn how to order food and pay for things, (AR 48). She has problems even doing (AR 47, 49). 9 10 When assessing a claimant’s credibility regarding subjective 11 pain or intensity of symptoms, the ALJ must engage in a two-step 12 analysis. 13 First, the ALJ must determine if there is medical evidence of an 14 impairment that could reasonably produce the symptoms alleged. 15 Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). 16 analysis, the claimant is not required to show that her impairment 17 could reasonably be expected to cause the severity of the symptom 18 she has alleged; she need only show that it could reasonably have 19 caused some degree of the symptom.” 20 (citation omitted). 21 evidence of the pain or fatigue itself, or the severity thereof.” 22 Id. (citation omitted). Trevizo v. Berryhill, 874 F.3d 664, 678 (9th Cir. 2017). “In this Id. (emphasis in original) “Nor must a claimant produce objective medical 23 24 If the claimant satisfies this first step, and there is no 25 evidence of malingering, the ALJ must provide specific, clear and 26 convincing reasons for rejecting the claimant’s testimony about 27 the symptom severity. 28 see also Smolen, 80 F.3d at 1284 (“[T]he ALJ may reject the Trevizo, 874 F.3d at 678 (citation omitted); 7 1 claimant’s testimony regarding the severity of her symptoms only 2 if he makes specific findings stating clear and convincing reasons 3 for doing so.”); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 4 (9th Cir. 2006) (“[U]nless an ALJ makes a finding of malingering 5 based on affirmative evidence thereof, he or she may only find an 6 applicant 7 credibility and stating clear and convincing reasons for each.”). 8 “This is not an easy requirement to meet: The clear and convincing 9 standard is the most demanding required in Social Security cases.” 10 not credible by making specific findings as to Garrison, 759 F.3d at 1015 (citation omitted). 11 12 13 In discrediting the claimant’s subjective symptom testimony, the ALJ may consider the following: 14 15 (1) ordinary techniques of credibility evaluation, such 16 as 17 inconsistent 18 other testimony by the claimant that appears less than 19 candid; 20 failure to seek treatment or to follow a prescribed 21 course 22 activities. the claimant’s (2) of reputation statements concerning unexplained treatment; for or and (3) the lying, symptoms, inadequately the prior and explained claimant’s daily 23 24 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation 25 omitted). 26 conduct, or internal contradictions in the claimant’s testimony, 27 also may be relevant. 28 Cir. 2014); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. Inconsistencies between a claimant’s testimony and Burrell v. Colvin, 775 F.3d 1133, 1137 (9th 8 1 1997). In addition, the ALJ may consider the observations of 2 treating and examining physicians regarding, among other matters, 3 the functional restrictions caused by the claimant’s symptoms. 4 Smolen, 80 F.3d at 1284; accord Burrell, 775 F.3d at 1137. However, 5 it is improper for an ALJ to reject subjective testimony based 6 “solely” on its inconsistencies with the objective medical evidence 7 presented. 8 (9th Cir. 2009) (citation omitted). Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 9 10 Further, the ALJ must make a credibility determination with 11 findings that are “sufficiently specific to permit the court to 12 conclude that the ALJ did not arbitrarily discredit claimant’s 13 testimony.” 14 2008) (citation omitted); see Brown-Hunter v. Colvin, 806 F.3d 487, 15 493 (9th Cir. 2015) (“A finding that a claimant’s testimony is not 16 credible must be sufficiently specific to allow a reviewing court 17 to conclude the adjudicator rejected the claimant’s testimony on 18 permissible grounds and did not arbitrarily discredit a claimant’s 19 testimony regarding pain.”) (citation omitted). 20 interpretation of a claimant’s testimony may not be the only 21 reasonable one, if it is supported by substantial evidence, “it is 22 not [the court’s] role to second-guess it.” 23 261 F.3d 853, 857 (9th Cir. 2001). Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. Although an ALJ’s Rollins v. Massanari, 24 The 25 ALJ found that Plaintiff’s “medically determinable 26 impairments could reasonably be expected to cause the alleged 27 symptoms,” and the ALJ did not make a finding of malingering. 28 26). (AR Nevertheless, the ALJ concluded that Plaintiff’s statements 9 1 were “not entirely credible.” 2 Plaintiff’s “ability to take at least two classes per semester in 3 a 4 repetitive tasks in a work setting.” 5 especially 6 inconsistent 7 impairments that would unquestionably preclude work and all the 8 pressures of a workplace environment will often be consistent with 9 doing more than merely resting in bed all day.” college setting cautious with (AR 26). demonstrates in an concluding [subjective The ALJ found that ability to (AR 25). that daily symptom perform simple “ALJs must be activities testimony], are because Garrison, 759 F.3d If a claimant’s level of activity is inconsistent with 10 at 1016. 11 the 12 credibility. 13 provide a justification for rejecting symptom testimony, the mere 14 fact that a plaintiff has carried on certain daily activities does 15 not in any way detract from her credibility as to her overall 16 disability.” 17 omitted); see Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) 18 (“This court has repeatedly asserted that the mere fact that a 19 plaintiff has carried on certain daily activities does not in any 20 way detract from her credibility as to her overall disability.”) 21 (citation and alterations omitted). 22 need to be utterly incapacitated in order to be disabled.” 23 v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (citation omitted). claimant’s asserted Id. limitations, “Though it inconsistent has daily a bearing on activities may Revels, 874 F.3d at 667 (citation and alterations Indeed, a claimant “does not Benecke 24 25 Here, the ALJ fails to account for the assistance Plaintiff 26 requires in order to attend college. Plaintiff is unable to drive 27 and, without someone accompanying her, often has problems taking 28 public transportation to school. (AR 45-46). 10 She frequently gets 1 lost on campus and her parents need to help her open the emails 2 sent by the College. (AR 46, 49, 50). 3 4 The ALJ also relied improperly on Plaintiff’s admission “that 5 she is doing very well in school, with mostly A’s and B’s, and only 6 sometimes C’s in her graphic design classes.” (AR 25). The College 7 provides Plaintiff with a dedicated note-taker, who also assists 8 Plaintiff 9 learning, and Plaintiff is provided extra time to take tests.2 open the graphics software required for in-class (AR “That [Plaintiff] could participate in some daily 10 46-47, 49, 51). 11 activities does not contradict the evidence of otherwise severe 12 problems that [she] encountered in [her] daily life during the 13 relevant period.” 14 Cir. 2017). 15 college 16 assistance, are transferable to a work setting. 17 specific 18 transferability to conclude that a claimant’s daily activities 19 warrant an adverse credibility determination.” 20 639 (citation and alteration omitted). 21 specific findings nor pointed to any record evidence to support 22 her 23 “transferable” to a work setting. Diedrich v. Berryhill, 874 F.3d 634, 643 (9th Further, the ALJ did not explain how Plaintiff’s daily activities, findings conclusion with relating that considerable to the Plaintiff’s daily accommodations and The ALJ “must make activities and their Orn, 495 F.3d at Here, the ALJ neither made college activities are See id. 24 25 26 27 28 2 The VE testified that someone who is not able to sustain work activity independent of others would not be able to perform the requirements of the factory helper, wall cleaner, or machine feeder occupations. (AR 61-62). 11 1 The ALJ concluded that Plaintiff “indicated a higher level of 2 functioning than portrayed in her testimony on a consultative 3 examination, . . . [which] indicated that according to [Plaintiff] 4 was 5 occasionally go to the movies, use the computer, and go to the 6 gym.” 7 unable to perform household chores. 8 needs assistance to perform chores because she does not always 9 retain her parents’ instructions. able to complete (AR 25). household chores, cook, run errands, However, Plaintiff did not testify that she was Instead, she stated that she (AR 49). 10 11 Finally, the ALJ emphasized erroneously that Plaintiff “denied 12 any current depressive and anxiety symptoms, and stated she was 13 not receiving any mental health services.” 14 alleged 15 borderline intellectual functioning, not depression and anxiety. 16 Indeed, the ALJ acknowledged that the severity of Plaintiff’s 17 learning disability and borderline intellectual functioning “is 18 established by the objective medical evidence.” disability is caused by her (AR 25). learning Plaintiff’s disability and (AR 22). 19 20 In sum, the ALJ supported by failed to provide and convincing evidence, for rejecting 21 reasons, 22 Plaintiff’s 23 further 24 Plaintiff's symptoms in accordance with the current version of the 25 agency’s regulations and guidelines, taking account the full range 26 of medical evidence. subjective proceedings. substantial clear symptoms. On remand, 27 28 12 The the matter ALJ is remanded shall for reevaluate 1 B. The ALJ Did Not Provide Germane Reasons For Rejecting Lay Testimony 2 3 4 Multiple lay witnesses provided statements that were 5 supportive of and consistent with Plaintiff’s testimony and her 6 allegations of significant limitations caused by her borderline 7 intellectual functioning and learning disability. 8 Asmus-Kim, 9 teacher, Ed.D., opined Plaintiff’s abilities, abstract concepts, and conflict resolution. (AR 213). 11 Dr. 12 assistance from others to live and manage daily tasks.” 13 “Simple tasks such as cooking for herself, paying bills, keeping 14 employment, understanding right from wrong and several other daily 15 tasks 16 maintain a good quality of life.” require that assistance difficulty education 10 concluded has special self-help will Plaintiff school with Asmus-Kim that high Karolanne K. Plaintiff from “will others for need to have (AR 213). [Plaintiff] to (AR 213. 17 18 Mirriam H. Gottlieb, a disabilities specialist at Pierce 19 College, reported that Plaintiff has been provided with a dedicated 20 note-taker because she “has difficulty keeping up with lectures 21 due to her problems with processing speed and comprehension.” 22 212). 23 more than two courses each semester because Plaintiff needs more 24 time to process information due to her lack of comprehension 25 skills. (AR Ms. Gottlieb further opined that Plaintiff is unable to take (AR 216). 26 27 28 Plaintiff’s father, Manuel Perez, provided testimony at the hearing. (AR 52-59). Perez testified that his daughter has been 13 1 unable to master basic safety skills, like not crossing the street 2 on a red light, because she has difficulty paying attention and 3 focusing. 4 perform household chores without supervision and instruction. 5 56-59). (AR 54). He testified that Plaintiff is unable to (AR 6 7 Plaintiff 8 mother. 9 complete also provided (AR 214-15). simple statements from her brother and They stated that Plaintiff is unable to tasks without 10 assistance. (AR 214-15). 11 emotions and gets easily stressed. reminders, supervision, and Plaintiff has trouble controlling her (AR 214-15). 12 “Lay 13 testimony as to a claimant’s symptoms is competent 14 evidence that an ALJ must take into account, unless he or she 15 expressly determines to disregard such testimony and gives reasons 16 germane to each witness for doing so.” 17 503, 511 (9th Cir. 2001). 18 party function reports may offer a different perspective than 19 medical records alone is precisely why such evidence is valuable 20 at a hearing.” Lewis v. Apfel, 236 F.3d “The fact that lay testimony and third- Diedrich, 874 F.3d at 640. 21 22 Here, the ALJ briefly summarized Dr. Asmus-Kim’s and Ms. 23 Gottlieb’s statements (AR 25), but failed to discuss the weight to 24 be afforded to them. 25 qualify as a “germane reason” for rejecting them.3 26 Merely summarizing their letters does not Defendant does not address the ALJ’s failure to provide germane reasons for rejecting Dr. Asmus-Kim’s and Ms. Gottlieb’s statements. (Dkt. No. 22 at 6-8). 3 27 28 Further, the 14 1 ALJ failed to acknowledge, discuss, or provide any reasoning for 2 apparently rejecting the testimony and statements by Plaintiff’s 3 family members. 4 required to provide reasons that are “germane to each witness.” 5 Lewis, 236 F.3d at 511. To properly reject lay testimony, the ALJ is 6 Defendant 7 argues that Plaintiff’s father’s testimony 8 “conflicts with what Plaintiff told Dr. Shirokhi regarding her 9 ability to cook, do chores, and go out with friends and to the 10 gym.” (Dkt. No. 22 at 7). However, the court is “constrained to 11 review the reasons the ALJ asserts.” 12 871, 874 (9th Cir. 2003) (citing Sec. & Exch. Comm’n v. Chenery 13 Corp., 332 U.S. 194, 196 (1947)). 14 reasons provided by the ALJ in the disability determination and 15 may not affirm the ALJ on a ground upon which he did not rely.” 16 Garrison, 759 F.3d at 1010. Here, the ALJ did not provide any 17 reason for apparently rejecting Mr. Perez’s testimony. Connett v. Barnhart, 340 F.3d The court “review[s] only the 18 19 Defendant contends that the ALJ is not required “to discuss 20 every piece of evidence.” 21 accurate, the ALJ is not permitted to reject all lay testimony 22 without expressly providing reasons “germane to each witness.” 23 Lewis, 236 F.3d at 511. 24 failure to “explain how the third-party testimony influenced the 25 outcome 26 “inconsequential to the ultimate non-disability determination.” 27 (Dkt. No. 22 at 9). 28 rejecting Plaintiff’s subjective statements, as discussed above, of the (Dkt. No. 22 at 7). Even if this is Finally, Defendant contends that the ALJ’s decision” is harmless error because it was To the contrary, because the ALJ erred in 15 1 the ALJ’s apparent rejection of the lay testimony, which supported 2 Plaintiff’s testimony, was not harmless error. 3 4 In sum, the ALJ failed to provide germane reasons, supported 5 by substantial evidence, for apparently rejecting lay testimony. 6 The matter is remanded for further proceedings.4 7 ALJ 8 disregard the lay statements only by providing reasons that are 9 germane to each witness. shall fully evaluate the lay witness On remand, the testimony and may 10 11 12 13 14 15 16 17 18 19 20 21 22 23 4 24 25 26 27 28 Plaintiff also argues that in assessing her RFC, the ALJ failed to fully account for the limitations included in her testimony and the lay witnesses’ statements. (Dkt. No. 21 at 2325). However, it is unnecessary to reach Plaintiff’s arguments on this ground, as the matter is remanded for the alternative reasons discussed at length in this Order. However, after reconsideration of the Plaintiff’s testimony and the lay witness statements, it will likely be necessary for the ALJ to reconsider Plaintiff’s RFC. 16 1 VI. 2 CONCLUSION 3 4 Accordingly, IT IS ORDERED that Judgment be entered REVERSING 5 the decision of the Commissioner and REMANDING this matter for 6 further proceedings consistent with this decision. 7 ORDERED that the Clerk of the Court serve copies of this Order and 8 the Judgment on counsel for both parties. IT IS FURTHER 9 10 DATED: October 5, 2018 11 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 12 13 14 15 THIS DECISION IS NOT INTENDED FOR PUBLICATION LEXIS/NEXIS OR ANY OTHER LEGAL DATABASE. 16 17 18 19 20 21 22 23 24 25 26 27 28 17 IN WESTLAW,
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