Cynthia J. Baker v. Michael J. Astrue, No. 5:2008cv00485 - Document 16 (C.D. Cal. 2009)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that: (1) plaintiff's request for remand is GRANTED; (2) the decision of the Commissioner is REVERSED; and (3) this action is REMANDED to defendant for furthe r proceedings consistent with this Memorandum Opinion. THIS MEMORANDUM OPINION AND ORDER IS NOT INTENDED FOR PUBLICATION, NOR IS IT INTENDED TO BE INCLUDED OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW OR LEXIS. **See Order for details.** (ch)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 CYNTHIA J. BAKER, 13 Plaintiff, 14 15 v. 16 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 17 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 08-485-PLA MEMORANDUM OPINION AND ORDER 18 19 I. 20 PROCEEDINGS 21 Plaintiff filed this action on April 17, 2008, seeking review of the Commissioner s denial of 22 her application for Disability Insurance Benefits. The parties filed Consents to proceed before the 23 undersigned Magistrate Judge on April 30, 2008, and August 18, 2008. The parties filed a Joint 24 Stipulation on December 22, 2008, that addresses their positions concerning the disputed issues 25 in the case. The Court has taken the Joint Stipulation under submission without oral argument. 26 / 27 / 28 / 1 II. 2 BACKGROUND 3 Plaintiff was born on July 31, 1957. [Administrative Record ( AR ) at 67.] She has a high 4 school education plus one year of college [AR at 118], and past relevant work experience as a 5 hostess, a waitress, an office manager, and an animal control officer. [AR at 32, 113, 120.] 6 On April 20, 2005, plaintiff protectively filed her application for Disability Insurance Benefits, 7 alleging that she has been unable to work since August 3, 2004, due to rheumatoid arthritis and 8 fibromyalgia. [AR at 66-71, 112.] After her application was denied initially and on reconsideration, 9 plaintiff requested a hearing before an Administrative Law Judge ( ALJ ). [AR at 53-57, 59-64, 10 65.] A hearing was held on March 28, 2007, at which plaintiff appeared with counsel and testified 11 on her own behalf. Testimony was also received from a vocational expert. [AR at 267-85.] On 12 April 19, 2007, the ALJ determined that plaintiff was not disabled. [AR at 26-33.] Plaintiff 13 requested review of the hearing decision. [AR at 20.] The Appeals Council denied plaintiff s 14 request for review on March 7, 2008. [AR at 5-8.] This action followed. 15 16 III. 17 STANDARD OF REVIEW 18 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner s 19 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 20 evidence or if it is based upon the application of improper legal standards. Moncada v. Chater, 21 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 22 In this context, the term substantial evidence means more than a mere scintilla but less 23 than a preponderance -- it is such relevant evidence that a reasonable mind might accept as 24 adequate to support the conclusion. Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at 25 1257. When determining whether substantial evidence exists to support the Commissioner s 26 decision, the Court examines the administrative record as a whole, considering adverse as well 27 as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th 28 Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court 2 1 must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala, 2 53 F.3d 1035, 1039-40 (9th Cir. 1995); Drouin, 966 F.2d at 1258. 3 4 IV. 5 THE EVALUATION OF DISABILITY 6 Persons are disabled for purposes of receiving Social Security benefits if they are unable 7 to engage in any substantial gainful activity owing to a physical or mental impairment that is 8 expected to result in death or which has lasted or is expected to last for a continuous period of at 9 least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257. 10 11 A. THE FIVE-STEP EVALUATION PROCESS 12 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 13 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lester v. Chater, 81 F.3d 821, 14 828 n.5 (9th Cir. 1995, as amended April 9, 1996). In the first step, the Commissioner must 15 determine whether the claimant is currently engaged in substantial gainful activity; if so, the 16 claimant is not disabled and the claim is denied. Id. If the claimant is not currently engaged in 17 substantial gainful activity, the second step requires the Commissioner to determine whether the 18 claimant has a severe impairment or combination of impairments significantly limiting her ability 19 to do basic work activities; if not, a finding of nondisability is made and the claim is denied. Id. 20 If the claimant has a severe impairment or combination of impairments, the third step requires 21 the Commissioner to determine whether the impairment or combination of impairments meets or 22 equals an impairment in the Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 404, 23 Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. 24 If the claimant s impairment or combination of impairments does not meet or equal an impairment 25 in the Listing, the fourth step requires the Commissioner to determine whether the claimant has 26 sufficient residual functional capacity to perform her past work; if so, the claimant is not disabled 27 and the claim is denied. Id. The claimant has the burden of proving that she is unable to 28 perform past relevant work. Drouin, 966 F.2d at 1257. If the claimant meets this burden, a 3 1 prima facie case of disability is established. The Commissioner then bears the burden of 2 establishing that the claimant is not disabled, because she can perform other substantial gainful 3 work available in the national economy. The determination of this issue comprises the fifth and 4 final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; Lester, 81 F.3d at 828 5 n.5; Drouin, 966 F.2d at 1257. 6 7 B. THE ALJ S APPLICATION OF THE FIVE-STEP PROCESS 8 In this case, at step one, the ALJ found that plaintiff had not engaged in any substantial 9 gainful activity since the alleged onset date of the disability.1 [AR at 28.] At step two, the ALJ 10 concluded that plaintiff has the severe impairments of rheumatoid arthritis, osteoarthritis, and 11 fibromyalgia. [Id.] At step three, the ALJ determined that plaintiff s impairments do not meet or 12 equal any of the impairments in the Listing. [AR at 29.] The ALJ further found that plaintiff retained 13 the residual functional capacity ( RFC )2 to perform light exertional activity,3 with occasional 14 climbing, balancing, stooping, kneeling, crouching, and crawling; frequent reaching, handling, and 15 fingering using bilateral hands; and a limitation to avoid concentrated exposure to extreme cold and 16 vibration. [Id.] At step four, the ALJ concluded that plaintiff was capable of performing her past 17 relevant work as a hostess, a waitress, and an office manager as they are generally performed. 18 [AR at 32.] Accordingly, the ALJ determined that plaintiff is not disabled. [AR at 32-33.] 19 / 20 / 21 / 22 23 24 1 The ALJ also determined that plaintiff met the insured status requirements of the Social Security Act through December 31, 2009. [AR at 28.] 2 25 26 27 28 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 3 Light work is defined as work involving lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds and requiring a good deal of walking or standing or sitting most of the time with some pushing and pulling of arm or leg controls. 20 C.F.R. §§ 404.1567(b), 416.967(b). 4 1 V. 2 THE ALJ S DECISION 3 Plaintiff contends that the ALJ failed to: (1) properly consider the treating physician s 4 opinion regarding Sjögren s syndrome; (2) properly consider plaintiff s credibility; (3) properly 5 consider the impact of plaintiff s obesity on her other impairments; (4) properly consider the State 6 agency physician s opinion; (5) properly consider whether plaintiff met or equaled a Listing; (6) 7 properly consider the actual physical and mental demands of plaintiff s past relevant work; (7) 8 properly consider plaintiff s RFC; (8) properly develop the record regarding the treating physician s 9 opinion with respect to Sjögren s syndrome; (9) pose a complete hypothetical question to the 10 vocational expert; and (10) properly consider lay witness testimony. Joint Stipulation ( Joint Stip. ) 11 at 2-3. As set forth below, the Court agrees with plaintiff, in part, and remands the matter for 12 further proceedings. 13 14 A. TREATING PHYSICIAN S OPINION/FAILURE TO DEVELOP RECORD 15 Plaintiff contends that the ALJ failed to properly consider the treating physician s opinion. 16 Specifically, plaintiff asserts that the ALJ failed to provide specific and legitimate reasons for 17 rejecting the opinion of plaintiff s treating physician, Dr. Gilbert Putnoky, concerning plaintiff s 18 diagnosis of possible Sjögren s syndrome. Joint Stip. at 3-7. 19 In evaluating medical opinions, the case law and regulations distinguish among the opinions 20 of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who 21 examine but do not treat the claimant (examining physicians); and (3) those who neither examine 22 nor treat the claimant (non-examining physicians). See 20 C.F.R. §§ 404.1502, 416.927; see also 23 Lester, 81 F.3d at 830. As a general rule, the opinions of treating physicians are given greater 24 weight than those of other physicians, because treating physicians are employed to cure and 25 therefore have a greater opportunity to know and observe the claimant. See Smolen v. Chater, 80 26 F.3d 1273, 1285 (9th Cir. 1996); see also Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) 27 (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). Although the treating physician s 28 5 1 opinion is entitled to great deference, it is not necessarily conclusive as to the question of disability. 2 See Magallanes, 881 F.2d at 751 (citing Rodriguez v. Bowen, 876 F.2d 759, 761-62 (9th Cir. 1989)). 3 The administrative law judge is not bound by the uncontroverted opinions of the claimant s 4 physicians on the ultimate issue of disability, but he cannot reject them without presenting clear 5 and convincing reasons for doing so. Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) 6 (quoting Montijo v. Secretary of Health & Human Servs., 729 F.2d 599, 601 (9th Cir. 1984)); see 7 also Lester, 81 F.3d at 830. Where the treating physician s opinion on disability is controverted, 8 it can be rejected only with specific and legitimate reasons supported by substantial evidence in 9 the record. See Lester, 81 F.3d at 830; see also 20 C.F.R. §§ 404.1527(d), 416.927(d) (requiring 10 that Social Security Administration always give good reasons in [the] notice of determination or 11 decision for the weight [given to t..he] treating source s opinion ); Social Security Ruling4 96-2p 12 ( the notice of the determination or decision must contain specific reasons for the weight given to 13 the treating source s medical opinion, supported by the evidence in the case record, and must be 14 sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to 15 the treating source s medical opinion and the reasons for that weight. ). 16 Although the ALJ noted Dr. Putnoky s diagnosis of possible Sjögren s syndrome [AR at 31],5 17 he failed to provide specific and legitimate reasons for rejecting that diagnosis as set forth in Dr. 18 Putnoky s progress notes of June 9, 2005, and July 15, 2005.6 [AR at 202, 234.] Because the 19 diagnosis of possible Sjögren s syndrome lends some support to plaintiff s testimony concerning 20 21 22 4 Social Security Rulings ( SSR ) do not have the force of law. Nevertheless, they constitute Social Security Administration interpretations of the statute it administers and of its own regulations, and are given deference unless they are plainly erroneous or inconsistent with the Act or regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 23 5 24 25 26 Sjögren s syndrome is a disorder in which the immune system attacks the body s moisture-producing glands, such as the tear glands and the saliva glands. http://arthritis.webmd.com/tc/sjogrens-syndrome-topic-overview. These glands may become scarred and damaged, and extreme dryness in the eyes and mouth (sicca syndrome) may develop. Sjögren s syndrome may also cause fatigue, pain in the joints, and, in rare cases, problems with the function of vital organs, such as the lungs, kidneys, and nerves. Id. 27 6 28 The only severe impairments that the ALJ found are rheumatoid arthritis, osteoarthritis, and fibromyalgia. [AR at 28.] 6 1 her inability to work based on disabling pain,7 and thus may have impacted the ALJ s severity 2 determination and RFC assessment, the ALJ s failure to specifically reject Dr. Putnoky s diagnosis 3 warrants remand. Indeed, any inadequacies or ambiguities concerning Dr. Putnoky s diagnosis 4 of possible Sjögren s syndrome should have triggered the ALJ s duty to seek further development 5 of the record. See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) ( Ambiguous 6 evidence, or the ALJ s own finding that the record is inadequate to allow for proper evaluation of 7 the evidence, triggers the ALJ s duty to conduct an appropriate inquiry. ) (quoting Smolen, 80 8 F.3d at 1288). If evidence from the medical source is inadequate to determine if the claimant is 9 disabled, an ALJ is required to recontact the medical source, including a treating physician, to 10 determine if additional needed information is readily available. See 20 C.F.R. §§ 404.1512(e)(1), 11 416.912(e)(1) ( We will seek additional evidence or clarification from your medical source when 12 the report from your medical source contains a conflict or ambiguity that must be resolved, the 13 report does not contain all the necessary information, or does not appear to be based on medically 14 acceptable clinical and laboratory diagnostic techniques. ). As a general rule, the record will be 15 considered inadequate or ambiguous when a treating source has provided a medical opinion 16 that is not supported by the evidence. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 17 2005) ( An ALJ is required to recontact a doctor only if the doctor s report is ambiguous or 18 insufficient for the ALJ to make a disability determination. ) (citation omitted); see also Thomas 19 v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). The responsibility to see that this duty is fulfilled 20 belongs entirely to the ALJ; it is not part of the claimant s burden. See White v. Barnhart, 287 F.3d 21 903, 908 (10th Cir. 2001). Here, the record was not sufficiently developed to permit the ALJ to 22 properly consider and discount the opinion of plaintiff s treating physician concerning the existence 23 of Sjögren s syndrome. It would have required little effort on his part to recontact the treating 24 physician to determine the basis of the diagnosis. The ALJ should do so on remand in order to 25 resolve any inadequacies and fully develop the record. See 20 C.F.R. §§ 404.1519a(b)(4), 26 27 28 7 Plaintiff testified that she has pain in her shoulders, hips, knees, hands, and feet. [AR at 276-77.] She also testified that she experiences flare-ups of pain, as well as swelling in her shoulders, knees, hips, and hands, that can last for a week. [AR at 276, 278-79.] 7 1 416.919a(b)(4) (where the medical evidence contains [a] conflict, inconsistency, ambiguity, or 2 insufficiency, the ALJ should resolve the inconsistency by recontacting the medical source). 3 4 B. PLAINTIFF S CREDIBILITY 5 Plaintiff contends that the ALJ failed to properly consider plaintiff s testimony and failed to 6 make proper credibility findings. Joint Stip. at 7-9. Specifically, plaintiff argues that the ALJ did 7 not provide clear and convincing reasons for discounting plaintiff s testimony. Joint Stip. at 8-9. 8 Whenever an ALJ discredits a claimant s testimony, the ALJ must make explicit credibility 9 findings. See Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990); see also Dodrill v. Shalala, 10 12 F.3d 915, 918 (9th Cir. 1993) (if the ALJ does not accept a claimant s testimony, he must make 11 specific findings rejecting it). The ALJ can reject a claimant s allegations only upon (1) finding 12 evidence of malingering, or (2) expressing clear and convincing reasons for doing so. Benton v. 13 Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003); see Lester, 81 F.3d at 834 (the ALJ must provide 14 clear and convincing reasons for discrediting a claimant s testimony as to severity of symptoms 15 when there is medical evidence of an underlying impairment). The factors to be considered in 16 weighing a claimant s credibility include: (1) the claimant s reputation for truthfulness; (2) 17 inconsistencies either in the claimant s testimony or between the claimant s testimony and her 18 conduct; (3) the claimant s daily activities; (4) the claimant s work record; and (5) testimony from 19 physicians and third parties concerning the nature, severity, and effect of the symptoms of which 20 the claimant complains. See Thomas, 278 F.3d at 958-59; see also 20 C.F.R. §§ 404.1529(c), 21 416.929(c). It is not sufficient for the ALJ to make only general findings. Dodrill, 12 F.3d at 918. 22 Absent evidence showing that the plaintiff is malingering, the ALJ must state which testimony is 23 not credible and identify the evidence that undermines the claimant s complaints. See id.; see also 24 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) ( General findings are insufficient; rather, the 25 ALJ must identify what testimony is not credible and what evidence undermines the claimant s 26 complaints. ) (quoting Lester, 81 F.3d at 834). If properly supported, the ALJ s credibility 27 determination is entitled to great deference. See Green v. Heckler, 803 F.2d 528, 532 (9th Cir. 28 1986). 8 1 As the record contains no evidence of malingering by plaintiff,8 the ALJ was required to 2 justify his credibility determination with clear and convincing reasons. See Benton, 331 F.3d at 3 1040. In the decision, despite finding some of plaintiff s subjective allegations partially credible, 4 the ALJ determined that plaintiff s statements concerning the intensity, persistence and limiting 5 effects of her symptoms were not entirely credible. [AR at 31.] The ALJ discounted plaintiff s 6 subjective complaints of pain because: (1) plaintiff s daily activities where not limited to the extent 7 one would expect given plaintiff s complaints of disabling symptoms and limitations; (2) plaintiff s 8 x-rays were essentially normal; (3) plaintiff received essentially routine and/or conservative 9 treatment; and (4) plaintiff s treating physicians did not place any restrictions on plaintiff. [AR at 10 31-32.] As discussed below, the Court has considered the ALJ s reasons for discounting plaintiff s 11 subjective testimony, and finds that they are neither clear nor convincing. 12 First, the ALJ determined that plaintiff s daily activities negated her allegations regarding 13 her limitations. Generally speaking, if a claimant has the ability to perform activities that involve 14 many of the same physical tasks as a particular type of job, it would not be farfetched for an ALJ 15 to conclude that the claimant s pain does not prevent [him] from working. See Fair v. Bowen, 885 16 F.2d 597, 603 (9th Cir. 1989). Engaging in some household chores or activities, however, is not 17 necessarily inconsistent with a finding of disability. See Gallant v. Heckler, 753 F.2d 1450, 1453 18 (9th Cir. 1984) (benefits awarded on appeal to a claimant experiencing constant leg and back pain, 19 despite the claimant s ability to cook and wash dishes); see also Cooper v. Bowen, 815 F.2d 557, 20 561 (9th Cir. 1987) (stating that ability to assist with some household tasks was not determinative 21 of disability) (citing Smith v. Califano, 637 F.2d 968, 971 (3rd Cir. 1981) (disability claimant need 22 not vegetate in a dark room excluded from all forms of human and social activity )). Here, in 23 finding plaintiff s allegations regarding her limitations not totally credible, the ALJ cited plaintiff s 24 testimony that she drives occasionally, goes to the store with her husband, and goes for walks 25 for 10 minutes each day. [AR at 31.] The fact that plaintiff drives occasionally, goes to the 26 27 8 28 The ALJ made no finding that plaintiff was malingering, nor does the evidence suggest plaintiff was doing so. 9 1 grocery store with the assistance of her husband, and has tried to walk for 10 minutes a day [AR 2 at 275, 279-80], does not support the ALJ s decision that plaintiff could sustain gainful 3 employment, as the ability to do these limited activities does not necessarily translate into an 4 ability to do activities that are transferable to a work setting. See Fair, 885 F.2d at 603 (noting 5 that a claimant is not required to be utterly incapacitated in order to be disabled and that many 6 home activities are not easily transferable to what may be the more grueling environment of the 7 workplace, where it might be impossible to periodically rest or take medication ); see also Smolen, 8 80 F.3d at 1284 n.7. The Court is not persuaded that plaintiff s ability to do the stated actions 9 clearly undermines her subjective testimony. See Reddick, 157 F.3d at 722 ( . . . claimants 10 should not be penalized for attempting to lead normal lives in the face of their limitations. ). 11 Indeed, plaintiff testified that she sometimes does not feel comfortable driving and has trouble 12 driving, she often has her husband take her to the store so that he can help her, and she has tried 13 to walk for 10 minutes a day, but walking just really set [her] back. [AR at 275, 279-80.] The ALJ 14 made no findings that plaintiff is capable of performing these activities repeatedly or for substantial 15 periods of time without rest, and did not explain how these activities are transferable to the 16 workplace. See Fair, 885 F.2d at 603. Nor did the ALJ provide an explanation as to how plaintiff s 17 ability to perform certain activities is inconsistent with her claimed limitations. See Reddick, 157 18 F.3d at 722 (an ability to take part in some household tasks bears on a claimant s credibility only 19 to the extent that the level of activity is in fact inconsistent with the alleged limitations). 20 Next, the ALJ noted that plaintiff s x-rays have essentially been within normal limits, 21 showing only minimal findings. [AR at 32.] While the absence of objective medical evidence to 22 support plaintiff s subjective complaints is a factor that an ALJ can consider in discrediting 23 symptom testimony, it cannot be the sole factor. See Bunnell v. Sullivan, 947 F.2d 341, 346-47 24 (9th Cir. 1991) (an adjudicator may not discredit a claimant s testimony of pain and deny disability 25 benefits solely because the degree of pain alleged by the claimant is not supported by objective 26 medical evidence. ) (emphasis added); see also Light v. Social Security Administration, 119 F.3d 27 789, 792 (9th Cir. 1997) ( because a claimant need not present clinical or diagnostic evidence to 28 support the severity of his pain . . . a finding that the claimant lacks credibility cannot be premised 10 1 wholly on a lack of medical support for the severity of his pain ). Symptoms can sometimes 2 suggest a greater severity of impairment than is demonstrated by objective and medical findings 3 alone . . . [D]irect medical evidence of the cause and effect relationship between the impairment 4 and the degree of claimant s subjective complaints need not be produced . . . The absence of an 5 objective medical basis which supports the degree of severity of subjective complaints alleged is 6 just one factor to be considered in evaluating the credibility of the testimony and complaints. 7 Luna v. Bowen, 834 F.2d 161, 165 (10th Cir. 1987) (quoting Polaski v. Heckler, 751 F.2d 943, 948 8 (8th Cir. 1984), vacated and remanded on other grounds, 476 U.S. 1167, 106 S. Ct. 2885, 90 L. 9 Ed. 2d 974 (1986)). Here, although plaintiff s x-rays showed essentially minimal findings [AR at 10 191-94, 219], which lends some support to the ALJ s determination, the lack of objective medical 11 evidence to support plaintiff s subjective testimony cannot alone constitute a valid reason to 12 discredit her allegations. See 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2) ( [S]tatements about 13 the intensity and persistence of [a claimant s] pain or other symptoms or about the effect [a 14 claimant s] symptoms have on [his or her] ability to work will not be disregarded solely because 15 the available objective medical evidence does not substantiate [a claimant s] statements. ); see 16 also SSR 96-7p. The ALJ has not provided any reasons that, coupled with the absence of 17 objective medical evidence, are clear and convincing.9 18 Furthermore, the ALJ found that although [plaintiff] has received treatment for the allegedly 19 disabling impairment(s), that treatment has been essentially routine and/or conservative in nature. 20 [AR at 32.] The ALJ s characterization of plaintiff s treatment is somewhat inaccurate. Although 21 an ALJ may rely on a claimant s conservative treatment regimen to reject a claimant s testimony 22 of disabling limitations or disabling pain (see Fair, 885 F.2d at 604), here, plaintiff s treatment was 23 more than conservative. From 2003 through 2007, plaintiff was treated for, among other things, 24 rheumatoid arthritis, joint swelling and pain, abdominal pain, left shoulder tendinitis, possible 25 Sjögren s syndrome, fibromyalgia, osteoarthritis, bilateral hip bursitis, depression, and insomnia. 26 27 9 28 As discussed herein, the other reasons that the ALJ provides in his decision for discounting plaintiff s subjective complaints are insufficient. 11 1 [AR at 154-77, 200-02, 204-07, 221-34, 246-48, 251-53, 261, 263.] Over the course of her 2 treatment, plaintiff was prescribed, among other things, Lexapro, Darvocet, Protonix, Prednisone, 3 Flexeril, Methotrexate, Arava, and Enbrel. [See id.] Plaintiff was also treated with injection 4 therapy, which consisted of corticosteroid, Depo-Medrol and Kenalog injections, and was advised 5 to use a heating pad at home. [AR at 202, 204-05, 221-22, 224-25, 228-29, 232.] At the request 6 of Dr. William Spahn, x-rays of plaintiff s spine were taken, which revealed mild findings of 7 osteoarthritis of the thoracic spine, mild to moderate findings of the lower cervical spine, and 8 minimal degenerative disk disease at C5-6 with anterior osteophytes. [AR at 192, 219.] A left 9 shoulder arthrogram showed irregularity of the shoulder joint capsule, suggesting synovial 10 hypertrophy. [AR at 194.] On several occasions, Dr. Spahn noted that plaintiff s rheumatoid 11 arthritis and fibromyalgia were severe, quite bad, or very bad. [AR at 248, 251, 253.] On 12 March 2, 2006, Dr. Putnoky noted that plaintiff is increasingly disabled because of hand 13 problems, and gave her a corticosteroid injection.10 [AR at 230.] Dr. Putnoky also noted that [i]t 14 might be reasonable to discuss adding a different second-line agent . . . if [plaintiff] is not 15 significantly improved at her next follow up appointment. [AR at 230.] On November 13, 2006, 16 Dr. Putnoky noted that plaintiff has had a gradual return of more pain and slight swelling, 17 particularly in her hands. [AR at 263.] Dr. Putnoky found that [t]here certainly has to be some 18 activity of [plaintiff s] rheumatoid arthritis for her to flare so badly off of prednisone and do so well 19 back on it, and predicted that the Depo-Medrol injection is starting to wear off and [plaintiff] will 20 get worse again. [Id.] The record shows that plaintiff continuously sought treatment for her 21 conditions, underwent injection therapy, and took a variety of prescription medications. There is 22 no indication in the record that plaintiff failed to follow any prescribed course of treatment. Nor 23 does the ALJ in the decision indicate any alternative course of treatment plaintiff should have 24 received given her impairments, or offer any authority as to a more aggressive treatment regimen 25 26 27 28 10 Although in earlier progress notes Dr. Putnoky indicated that he did not see anything that was permanently disabling [AR at 207, 233], in this later progress note, he indicated that plaintiff was increasingly disabled. [AR at 230.] 12 1 for an individual with plaintiff s impairments. As such, the ALJ s rejection of plaintiff s treatment 2 as conservative was improper. 3 Lastly, the ALJ concluded that a review of the record in this case reveals no restrictions 4 recommended by the treating doctor to support plaintiff s allegations of disabling symptoms. [AR 5 at 32.] This conclusion is not supported by the record. To the extent that the ALJ relied on the 6 fact that Dr. Putnoky did not provide a functional assessment concerning plaintiff s restrictions, 7 such reliance is misplaced. See Reddick, 157 F.3d at 722-23 (it is impermissible for the ALJ to 8 develop an evidentiary basis by not fully accounting for the context of materials or all parts of the 9 testimony and reports ). On several occasions, Dr. Putnoky indicated that he does not perform 10 disability evaluations or examinations. [AR at 206-07, 221-22.] Given Dr. Putnoky s disclaimer, 11 it is not surprising that he did not place any restrictions on plaintiff. Moreover, insofar as the ALJ 12 rejected plaintiff s subjective complaints of disabling symptoms based on the inadequacy of Dr. 13 Spahn s findings, such a rejection should have triggered the ALJ s duty to seek further 14 development of the record to determine whether Dr. Spahn found that plaintiff suffered from any 15 functional limitations. See Tonapetyan, 242 F.3d at 1150; see also 20 C.F.R. §§ 404.1519a(b)(4), 16 416.919a(b)(4). 17 While an ALJ may certainly find testimony not credible and disregard it . . ., [courts] cannot 18 affirm such a determination unless it is supported by specific findings and reasoning. Robbins 19 v. Social Security Administration, 466 F.3d 880, 884-85 (9th Cir. 2006). The ALJ erred by failing 20 to provide clear and convincing reasons for discounting plaintiff s subjective testimony. Remand 21 is warranted on this issue. 22 23 C. LAY WITNESS STATEMENTS 24 Plaintiff argues that the ALJ failed to consider the lay witness statements of plaintiff s 25 mother-in-law, Suzanna K. Baker. Joint Stip. at 38-39. Defendant argues that the ALJ s failure 26 to address Ms. Baker s statements was harmless error because her statements are merely 27 cumulative of [p]laintiff s subjective complaints and are consistent with the ALJ s characterization 28 13 1 of [p]laintiff s testimony. Joint Stip. at 39-40. For the following reasons, the Court disagrees and 2 remands the case for further proceedings on this issue. 3 On May 13, 2005, Ms. Baker completed a Function Report Adult Third Party form 4 describing plaintiff s daily activities and abilities. [AR at 128-36.] Ms. Baker reported that she has 5 known plaintiff for 10 years and spends 10 to 12 hours each day with plaintiff. [AR at 128.] Ms. 6 Baker noted that plaintiff gets up with pain, is tired from being up a lot in [sic] night with pain, 7 and can t do much. [AR at 128.] She stated that [s]ometimes [plaintiff] don t [sic] get dress[ed] 8 as she has a lot of pain. [AR at 129.] She reported that plaintiff s impairments affect her ability 9 to lift, squat, bend, stand, reach, walk, kneel, climb stairs, use her hands, and complete tasks. [AR 10 at 133.] In particular, Ms. Baker noted that plaintiff could not lift over 10 pounds and could walk 11 only 10 minutes before needing to rest. [AR at 133.] 12 Judges may, in addition to evidence from the acceptable medical sources . . . , also use 13 evidence from other sources to show the severity of [plaintiff s] impairment(s) and how it affects 14 [his] ability to work. 20 C.F.R. §§ 404.1513(d), 416.1913(d). Such other sources include 15 spouses, parents and other care givers, siblings, other relatives, friends, neighbors, and clergy. 16 See 20 C.F.R. §§ 404.1513(d)(4), 416.1913(d)(4). Thus, lay witness testimony by family members 17 who have the opportunity to observe plaintiff on a daily basis constitutes qualified evidence that 18 the ALJ must consider. Sprague v. Bowen, 812 F.2d 1226, 1231-32 (9th Cir. 1987); see Dodrill, 19 12 F.3d at 919 ( An eyewitness can often tell whether someone is suffering or merely malingering. 20 While this is particularly true of witnesses who view the claimant on a daily basis, the testimony 21 of those who see the claimant less often still carries some weight. ). To reject lay testimony, an 22 ALJ must give reasons germane to each witness for doing so. Dodrill, 12 F.3d at 919. Failure 23 to consider lay testimony will be considered harmless error only if the reviewing court can 24 confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have 25 reached a different disability determination. Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 26 1053 (9th Cir. 2006). 27 Here, the ALJ failed to consider the lay witness statements of Ms. Baker. In his decision, 28 the ALJ did not even mention the Function Report Adult Third Party form completed by Ms. Baker. 14 1 The ALJ s failure to consider the statements of Ms. Baker, who spent 10 to 12 hours with plaintiff 2 on a daily basis and has known plaintiff for an extended time period, was error. See Dodrill, 12 3 F.3d at 919 ( Disregard of [lay witness statements] violates the Secretary s regulation that he will 4 consider observations by non-medical sources as to how an impairment affects a claimant s ability 5 to work. 20 C.F.R. § 404.1513(e) (2). ) (quoting Sprague, 812 F.2d at 1232); see also Regennitter 6 v. Commissioner of Social Sec. Admin., 166 F.3d 1294, 1298 (9th Cir. 1999) (lay testimony 7 provides an important source of information about a claimant s impairments, and an ALJ can 8 reject it only by giving specific reasons germane to each witness ) (citing Smolen, 80 F.3d at 9 1298); Smith v. Heckler, 735 F.2d 312, 313 (8th Cir. 1984) (if an ALJ rejects the subjective 10 testimony of lay witnesses, he must specifically discuss the testimony and expressly make 11 credibility determinations); Smith v. Bowen, 849 F.2d 1222, 1226 (9th Cir. 1988) (testimony from 12 someone in a position to observe a claimant s symptoms and daily activities is competent 13 evidence. ) (citation omitted). 14 Regardless of whether Ms. Baker s statements mirrored the testimony of plaintiff, in order 15 for the ALJ to reject Ms. Baker s testimony, the ALJ must first acknowledge that Ms. Baker 16 completed the Function Report Adult Third Party and then state reasons discounting the 17 statements that are germane to Ms. Baker. See Stout, 454 F.3d at 1053; see also Schow v. 18 Astrue, 272 Fed.Appx. 647, 653 (9th Cir. 2008) (ALJ failed to provide reasons for rejecting the lay 19 witnesses observations that were germane to each witness by relying heavily on the adverse 20 credibility finding as to the claimant s testimony) (citation omitted); Michaels v. Massanari, 16 21 Fed.Appx. 751, 754-55 (9th Cir. 2001) (ALJ cannot properly discredit lay witness testimony solely 22 because the claimant lacks credibility); see, e.g., Turner v. Apfel, 1998 WL 289288, at *12 (N.D. 23 Cal. May 7, 1998) ( [t]he ALJ improperly rejected the lay witnesses testimony because the ALJ 24 judged the lay witnesses credibility by her determination of [the claimant s] credibility. ). The 25 Court finds that the ALJ s error was not harmless as it cannot conclude that no reasonable ALJ 26 would have found that plaintiff was disabled if it credited Ms. Baker s statements. See Ellison v. 27 Astrue, 2008 WL 4425764, *5 (C.D. Cal. Sept. 29, 2008) ( where the ALJ s error lies in a failure 28 to properly discuss competent lay testimony favorable to the [plaintiff], a reviewing court cannot 15 1 consider the error harmless unless it can confidently conclude that no reasonable ALJ, when fully 2 crediting the testimony, could have reached a different disability determination. ) (citing Stout, 454 3 F.3d at 1056). Accordingly, remand is warranted on this issue. 4 5 VI. 6 REMAND FOR FURTHER PROCEEDINGS 7 As a general rule, remand is warranted where additional administrative proceedings could 8 remedy defects in the Commissioner s decision. See Harman v. Apfel, 211 F.3d 1172, 1179 (9th 9 Cir.), cert. denied, 531 U.S. 1038 (2000); Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). In 10 this case, remand is appropriate to consider Dr. Putnoky s opinion, plaintiff s credibility, and Ms. 11 Baker s statement.11 The ALJ is instructed to take whatever further action is deemed appropriate 12 and consistent with this decision. 13 Accordingly, IT IS HEREBY ORDERED that: (1) plaintiff s request for remand is granted; 14 (2) the decision of the Commissioner is reversed; and (3) this action is remanded to defendant 15 for further proceedings consistent with this Memorandum Opinion. 16 17 This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included or submitted to any online service such as Westlaw or Lexis. 18 19 DATED: July 22, 2009 20 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 11 As the ALJ s consideration on remand of the treating physician s opinion, plaintiff s credibility, and the lay witness statements may impact the remaining issues raised by plaintiff in the Joint Stipulation, the Court will exercise its discretion not to address those issues at this time. 16

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