Jerina Traister v. Michael J Astrue, No. 5:2009cv01082 - Document 18 (C.D. Cal. 2010)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal: IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED and REMANDED for further proceedings consistent with this decision. (dhl)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JERINA TRAISTER, 12 ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff, 13 v. 14 MICHAEL J. ASTRUE, Commissioner of the Social 15 Security Administration, 16 Defendant. No. EDCV 09-01082-SS MEMORANDUM DECISION AND ORDER 17 18 19 Plaintiff Jerina Traister ( Plaintiff ) brings this action seeking 20 to overturn the decision of the Commissioner of the Social Security 21 Administration (hereinafter the Commissioner or the Agency ) denying 22 her application for Supplemental Security Income ( SSI ) benefits. 23 Alternatively, she asks for a remand. The parties consented, pursuant 24 to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United 25 States Magistrate Judge. The parties filed a Joint Stipulation ( JS ), 26 pursuant to this Court s Case Management Order, in support of their 27 respective positions. For the reasons stated below, the decision of the 28 Commissioner proceedings. is REVERSED and REMANDED for further administrative THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 1 2 3 To qualify for disability benefits, a claimant must demonstrate a 4 medically determinable physical or mental impairment that prevents him 5 from engaging in substantial gainful activity1 and that is expected to 6 result in death or to last for a continuous period of at least twelve 7 months. 8 U.S.C. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 § 423(d)(1)(A)). The impairment must render the claimant 9 incapable of performing the work he previously performed and incapable 10 of performing any other substantial gainful employment that exists in 11 the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 12 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 13 14 To decide if a claimant is entitled to benefits, an ALJ conducts a 15 five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are: 16 17 (1) Is the claimant presently engaged in substantial gainful 18 activity? If so, the claimant is found not disabled. If 19 not, proceed to step two. 20 (2) Is the claimant s impairment 21 claimant is found not disabled. 22 severe? If not, the three. 23 (3) If so, proceed to step Does the claimant s impairment meet or equal one of list 24 of specific impairments described in 20 C.F.R. Part 404, 25 Subpart P, Appendix 1? If so, the claimant is found 26 1 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay 28 or profit. 20 C.F.R. §§ 404.1510, 416.910. 27 2 1 2 disabled. (4) If not, proceed to step four. Is the claimant capable of performing his past work? 3 so, the claimant is found not disabled. 4 If to step five. 5 (5) If not, proceed Is the claimant able to do any other work? If not, the 6 claimant is found disabled. If so, the claimant is found 7 not disabled. 8 9 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 10 949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098-99); 20 11 C.F.R. §§ 404.1520(b) - 404.1520(g)(1) & 416.920(b) - 416.920(g)(1). 12 13 The claimant has the burden of proof at steps one through four, and 14 the Commissioner has the burden of proof at step five. 15 F.3d at 953-54 (citing Tackett, 180 F.3d at 1098). Bustamante, 262 Additionally, the 16 ALJ has an affirmative duty to assist the claimant in developing the 17 record at every step of the inquiry. Id. at 954. If, at step four, the 18 claimant meets his burden of establishing an inability to perform past 19 work, the Commissioner must show that the claimant can perform some 20 other work that exists in significant numbers in the national economy, 21 taking into account the claimant s residual functional capacity ( RFC ),2 22 age, education, and work experience. Tackett, 180 F.3d at 1098, 1100; 23 Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 24 The Commissioner may do so by the testimony of a vocational expert or by 25 reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. 26 2 Residual functional capacity is what [one] can still do despite [his] limitations and represents an assessment based upon all 28 of the relevant evidence. 20 C.F.R. §§ 404.1545(a), 416.945(a). 27 3 1 Part 404, Subpart P, Appendix 2 (commonly known as the Grids ). 2 Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001) (citing Tackett, 3 180 F.3d at 1100-01). When a claimant has both exertional (strength- 4 related) and nonexertional limitations, the Grids are inapplicable and 5 the ALJ must take the testimony of a vocational expert. Moore v. Apfel, 6 216 F.3d 864, 869 (9th Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 7 1335, 1340 (9th Cir. 1988)). 8 THE ALJ S DECISION 9 10 11 The Administrative Law 12 sequential evaluation process. Judge ( ALJ ) applied the five-step At the first step of the evaluation 13 process, the ALJ found that Plaintiff had not engaged in substantial 14 gainful activity since her alleged onset date. 15 ( AR ) 10). (Administrative Record At step two, the ALJ found that Plaintiff s degenerative 16 changes in the musculoskeletal system were severe, but that her alleged 17 high blood pressure, heart palpations, migraine headaches and mental 18 disorder were either not medically determinable or not severe. 19 13). (AR 11- At step three, the ALJ found that the impairment did not meet or 20 equal any of the Listings. (AR 13). Concluding that Plaintiff s 21 subjective symptoms were not credible, the ALJ found that Plaintiff was 22 mentally and physically capable of performing medium work. (AR 15-16). 23 At step four, the ALJ determined that Plaintiff was able to perform past 24 relevant work. (AR 16). As such, the ALJ found that Plaintiff was not 25 disabled within the meaning of the Social Security Act. 26 27 28 4 (Id.). STANDARD OF REVIEW 1 2 3 Under 42 U.S.C. § 405(g), a district 4 Commissioner s decision to deny benefits. court may review the The court may set aside the 5 Commissioner s decision when the ALJ s findings are based on legal error 6 or are not supported by substantial evidence in the record as a whole. 7 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citing 8 Tackett, 180 F.3d at 1097); Smolen v. Chater, 80 F.3d 1273, 1279 (9th 9 Cir. 1996) (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). 10 11 Substantial evidence is more than a scintilla, but less than a 12 preponderance. Reddick, 157 F.3d at 720 (citing Jamerson v. Chater, 13 112 F.3d 1064, 1066 (9th Cir. 1997)). It is relevant evidence which a 14 reasonable person might accept as adequate to support a conclusion. 15 Id. (citing Jamerson, 112 F.3d at 1066; Smolen, 80 F.3d at 1279). To 16 determine whether substantial evidence supports a finding, the court 17 must consider the record as a whole, weighing both evidence that 18 supports and 19 conclusion. evidence that detracts from the [Commissioner s] Aukland, 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 20 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support 21 either that affirming or reversing conclusion, the court may not 22 substitute its judgment for that of the Commissioner. Reddick, 157 F.3d 23 at 720-21 (citing Flaten v. Sec y, 44 F.3d 1453, 1457 (9th Cir. 1995)). 24 DISCUSSION 25 26 27 Plaintiff contends that: (1) the ALJ erred by failing to provide 28 specific and legitimate reasons 5 for rejecting the treating 1 psychiatrist s opinion; (2) the ALJ erred by failing to provide germane 2 reasons for rejecting lay witness testimony; and (3) the ALJ improperly 3 assessed Plaintiff s ability to perform her past relevant work as a 4 manager of a retail store. (Joint Stipulation ( JS ) at 3). This Court 5 agrees action the and remands this on these grounds. As Court 6 determines that remand is required on these grounds alone, the Court 7 need not address Plaintiff s alternative arguments. 8 9 A. The ALJ Failed To Provide Specific And Legitimate Reasons For Rejecting The Treating Physician s Opinion 10 11 12 Plaintiff contends that the ALJ failed to properly consider the 13 opinion of Dr. Lyle Forehand, Jr. (JS at 3-4, 7-8). Specifically, 14 Plaintiff argues that [t]he ALJ erred in disregarding Dr. [Forehand s] 15 opinion without providing specific and legitimate reasons, supported by 16 substantial evidence. 3 (Id. at 4). 17 18 The opinions of treating physicians are entitled to special weight 19 because the treating physician is hired to cure and has a better 20 opportunity to know and observe the claimant as an individual. 21 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). Where a 22 treating physician s opinion is not contradicted by another doctor, it 23 may be rejected only for clear and convincing reasons. 24 Chater, 81 F.3d 821, 830 (9th Cir. 1995). Lester v. Even if the treating 25 physician s opinion is contradicted by another doctor, the ALJ may not 26 27 3 Plaintiff refers to Dr. Forehand as both Dr. Forehand and Dr. 28 Lyle in the Joint Stipulation. 6 1 reject this opinion without providing specific and legitimate reasons, 2 supported by substantial evidence in the record. Id. 3 4 Here, Plaintiff sought treatment at Bear Valley Family Counseling 5 ( Bear Valley ) from 2003-2005. (AR 227-97). Dr. Forehand, Plaintiff s 6 treating psychiatrist at Bear Valley, diagnosed Plaintiff with, inter 7 alia, depression, obsessive compulsive disorder and borderline 8 personality disorder. (AR 244). As part of Plaintiff s treatment plan, 9 Dr. Forehand prescribed medication, including Paxil and Lamictal. (See, 10 e.g., AR 247). During this period, Plaintiff had routine visits with 11 Dr. Forehand, as well as attended group therapy sessions at Bear Valley. 12 (AR 227-97). 13 14 The ALJ impliedly rejected Dr. Forehand s diagnosis by relying, in 15 whole, on the opinion of Dr. Linda Smith, the psychiatric consultative 16 examiner. (AR 12). Although Dr. Smith s opinion contradicted Dr. 17 Forehand s diagnosis, the ALJ failed to provide any reason for rejecting 18 Dr. Forehand s opinion. (AR 244, 424-34). Indeed, the ALJ failed to 19 even mention that Plaintiff sought treatment from Dr. Forehand and Bear 20 Valley anywhere in the decision, much less provide 21 legitimate reasons to reject Dr. Forehand s opinion. 22 Accordingly, the ALJ erred. specific and (AR 8-16). Lingenfelter v. Astrue, 504 F.3d 1028, 23 1037-38 n.10 (9th Cir. 2007) (stating that it was legal error for the 24 ALJ to completely ignore the opinions of the treating physicians). 25 26 Remand for further proceedings is appropriate where additional 27 proceedings could remedy defects in the Commissioner s decision. See 28 Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000); Kail v. Heckler, 7 1 722 F.2d 1496, 1497 (9th Cir. 1984). Because the ALJ failed to provide 2 specific and legitimate reasons for rejecting the treating physician s 3 opinion or, instead, to fully credit the opinion, the case must be 4 remanded to remedy this defect. Upon remand, the ALJ must either 5 provide specific and legitimate reasons to reject Dr. Forehand s opinion 6 or incorporate the limitations provided by Dr. Forehand into the RFC 7 determination. 8 9 B. The ALJ Failed To Provide Germane Reasons For Rejecting The Lay Witness Testimony 10 11 12 Plaintiff contends that the ALJ failed to provide germane reasons 13 for rejecting the testimony of a lay person. 14 further contends 15 financial that motivation the [was] ALJ s allegation unfounded. (JS 13). of the (Id.). Plaintiff lay witness Steve Beckman, 16 Plaintiff s boyfriend, submitted a Third Party Function Report in 17 support of Plaintiff s application.4 (AR 125-32, 152-59). Mr. Beckman 18 reported that he had known Plaintiff for five to six years and lived 19 with her. (AR 125, 152). 20 experienced pain and numbness. Mr. Beckman reported that (AR 125-30, 152-57). Plaintiff Mr. Beckman 21 explained that Plaintiff s ability to perform activities such as cooking 22 and cleaning depended on her pain level. (Id.). 23 24 In determining whether a claimant is disabled, an ALJ must consider 25 lay witness testimony concerning a claimant s ability to work. Stout v. 26 27 4 Mr. Beckman submitted two nearly identical Third Party Function 28 Reports. 8 1 Comm r, 454 F.3d 1050, 1053 (9th Cir. 2006); Smolen, 80 F.3d at 1288; 20 2 C.F.R. §§ 404.1513(d)(4) & (e), and 416.913(d)(4) & (e). Lay witness 3 testimony as to a claimant s symptoms cannot be disregarded without 4 comment. Stout, 454 F.3d at 1053; see also Robbins v. Social Sec. 5 Admin., 466 F.3d 880, 885 (9th Cir. 2006). The ALJ may discount the 6 testimony of lay witnesses only if he gives reasons that are germane to 7 each witness. Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 2001) 8 ( [L]ay testimony as to a claimant s symptoms is competent evidence that 9 an ALJ must take into account, unless he or she expressly determines to 10 disregard such testimony and gives reasons germane to each witness for 11 doing so. (citations omitted)). 12 13 The ALJ summarily rejected Mr. Beckman's testimony. He found that 14 Mr. Beckman's opinion "establishe[d] no different conclusions" from the 15 medical evidence and that Mr. Beckman had both the emotional and 16 financial motivation to help Plaintiff obtain disability benefits in 17 order "to relieve himself of total support of [Plaintiff] and transfer 18 it to the public." (AR 12-13, 15). This Court notes that the ALJ 19 cannot dismiss the testimony of Mr. Beckman, who is in a position 20 analogous to a family member, on the basis of bias simply by virtue of 21 his relationship with Plaintiff. Smolen, 80 F.3d at 1289 (finding that 22 the ALJ erred when he rejected the testimonies of family members on bias 23 grounds). Such rejection is equivalent to a wholesale dismissal of any 24 family member or domestic partner as a credible witness. Id. To the 25 contrary, witnesses who observe a claimant's symptoms on a daily basis 26 are particularly valuable. Id. (citing Dodrill, 12 F.3d at 918-19). 27 Although a relationship with the plaintiff can be one possible ground to 28 question credibility, something more is required to show that a lay 9 1 witness s testimony is so tainted by bias that it must be rejected. As 2 such, the ALJ erred by failing to provide sufficient reasons to reject 3 lay witness testimony. Upon remand, if the ALJ wishes to reject Mr. 4 Beckman's testimony, he must provide germane reasons supported by the 5 evidence in the record. 6 7 C. Substantial Evidence Does Not Support The ALJ s Determination That Plaintiff Could Perform Her Past Relevant Work 8 9 10 After reviewing the medical evidence and Plaintiff s testimony, the 11 ALJ concluded that Plaintiff was capable of performing medium work 12 activity. (AR 16). The ALJ found that Plaintiff was therefore capable 13 of returning to her past relevant work as a retail store manager. This 14 was error. 15 16 At step four of the sequential evaluation, claimants have the 17 burden of showing that they can no longer perform their past relevant 18 work. 20 C.F.R. § 404.1520(f). Although the burden of proof lies with 19 the claimant at step four, the ALJ still has a duty to make the 20 requisite factual findings to support his decision. Pinto v. 21 Massanari, 249 F.3d 840, 844 (9th Cir. 2001) (citing Social Security 22 Ruling ( SSR ) 82-62). The ALJ must look at the residual functional 23 capacity and the physical and mental demands of the claimant s past. 24 20 C.F.R. § 404.1520(f); SSR 82-62. The claimant must be able to 25 perform the job as he actually performed it, or as it is generally 26 performed in the national economy. SSR 82-61; Pinto, 249 F.3d at 845. 27 28 10 1 The ALJ premised his RFC finding on his improper assessment of 2 Plaintiff s impairments, both physical and mental. 3 the ALJ s assessment was based on the As discussed supra, improper rejection of Dr. 4 Forehand s opinion. The ALJ failed to set forth specific and legitimate 5 reasons for disregarding the opinion. As this Court has concluded that 6 the ALJ s rejection of Dr. Forehand s opinion was improper, the ALJ s 7 finding at step four is also improper and not supported by substantial 8 evidence. Cf. Aukland, 257 F.3d at 1037 (finding that the ALJ s 9 reliance on the Grids was improper when the ALJ improperly rejected the 10 treating physician s opinion). 11 12 As the assessment of Plaintiff s impairments was improper, it was 13 error to conclude she could return to her past relevant work as a retail 14 store manager. Upon remand, the ALJ must reconsider the analysis at 15 steps four and five of the evaluation. In addition, the Court finds 16 that the services of a vocational expert are required unless the ALJ 17 concludes that, based upon substantial evidence in the record, Plaintiff 18 can return to her past relevant work. 19 CONCLUSION 20 21 22 Accordingly, IT IS HEREBY ORDERED that the decision of the 23 Commissioner is REVERSED and REMANDED for further proceedings consistent 24 with this decision. 25 26 DATED: April 13, 2010. 27 /S/ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 28 11

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