Robert Bolar v. Michael J Astrue, No. 5:2010cv01748 - Document 19 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For these reasons, the Agency's decision is reversed and the case is remanded for further proceedings consistent with this Opinion. IT IS SO ORDERED. (ca)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ROBERT BOLAR, 11 12 13 Plaintiff, v. 14 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 10-1748 PJW MEMORANDUM OPINION AND ORDER 16 17 18 I. INTRODUCTION Plaintiff appeals the decision of Defendant Social Security 19 Administration ( the Agency ), denying his applications for 20 Disability Insurance benefits ( DIB ) and Supplemental Security 21 Income ( SSI ). 22 erred in: (1) rejecting a social worker s opinion, (2) ignoring the 23 opinions of an Agency employee, (3) rejecting the opinions of an 24 examining psychiatrist, and (4) rejecting his mother s testimony. 25 For the reasons discussed below, the Agency s decision is reversed 26 and remanded for further consideration in accordance with this 27 opinion. 28 He claims that the Administrative Law Judge ( ALJ ) 1 II. 2 SUMMARY OF PROCEEDINGS Plaintiff applied for DIB and SSI on February 28, 2007, alleging 3 that he was disabled as of October 1, 2006, due to bipolar disorder, 4 severe depression, anxiety, and an inability to concentrate. 5 (Administrative Record ( AR ) 145-52, 202-09.) 6 application initially and on reconsideration. 7 64-68.) 8 (AR 70, 92-96.) 9 hearing on March 11, 2009. The Agency denied his (AR 48-56, 58-61, He then requested and was granted a hearing before an ALJ. Plaintiff appeared with counsel and testified at the (AR 18-43.) 10 a decision denying benefits. 11 Appeals Council, which denied review. 12 The ALJ subsequently issued the instant action. 13 14 15 (AR 5-17.) III. A. Plaintiff appealed to the (AR 1-4.) He then commenced ANALYSIS The Social Worker s Opinion Plaintiff contends that the ALJ erred in rejecting the opinion 16 of a social worker/therapist who found that he suffered from bipolar 17 disorder and was severely restricted as a result. 18 reasons, the Court does not agree. 19 For the following Social workers are defined in the regulations as other sources 20 of medical evidence and their opinions are not entitled to the same 21 weight as doctors opinions. 22 Security Ruling 06-03p; see also Thomas v. Astrue, 2009 WL 151488, at 23 *3 (C.D. Cal. Jan. 21, 2009) ( [T]he reports of licensed clinical 24 social workers are considered other sources of evidence, not 25 evidence from an acceptable medical source. ). 26 to discount the opinion of a social worker, an ALJ need only provide 27 reasons that are germane to the witness. 20 C.F.R. § 416.913(d) (2011); Social 28 2 As such, in order Turner v. Comm r, Soc. Sec. 1 Admin., 613 F.3d 1217, 1224 (9th Cir. 2010) (quoting Lewis v. Apfel, 2 236 F.3d 503, 511 (9th Cir. 2001)). 3 The ALJ rejected the social worker s opinion in this case 4 because it consisted of a reiteration of Plaintiff s subjective 5 complaints -complaints that the ALJ had rejected--along with an 6 opinion of impairment that assumed that Plaintiff was compliant with 7 his medications, which he was not. 8 germane to the witness and are supported by the record. 9 ALJ did not err here. 10 11 B. (AR 15.) These reasons are As such, the The Agency Employee s Observations Plaintiff argues that the ALJ erred in failing to consider the 12 observations of a Social Security Administration employee who 13 interviewed Plaintiff in connection with his applications and noted 14 that Plaintiff was childlike and unable to complete forms on his own. 15 (Joint Stip. at 25-26.) 16 that this claim does not warrant reversal of the ALJ s decision. 17 For the following reasons, the Court finds At the outset, it is unclear whether the ALJ was required to 18 consider the employee s observations at all. 19 tell, this employee s only exposure to Plaintiff was during an 20 interview at the Social Security offices in which the employee was 21 attempting to obtain information from Plaintiff to process 22 Plaintiff s application. 23 the interview, but it appears from the form the interviewer filled 24 out--which consists of 12 questions--that it would have been 25 completed in a relatively brief period, certainly less than 30 26 minutes. 27 experience the interviewer had, if any, as there is no indication on 28 the form of his or her background or even his or her title. (AR 198-201.) As best the Court can There is no evidence as to the length of It is also unclear what type of training and 3 (AR 1 201.) Further, though the interviewer did note that Plaintiff was 2 bipolar and childlike, with a limited understanding of his 3 condition, immediately thereafter, he or she also noted in response 4 to a question seeking observations about the claimant s behavior, 5 appearance, grooming, degree of limitations, etc. that they were 6 not remarkable. 7 alerted the ALJ to the employee s observations or raised the issue at 8 the administrative hearing. 9 interviewer was a competent lay witness and that the ALJ erred when (AR 200.) Finally, Plaintiff s counsel never Thus, it is hard to say that the 10 he failed to consider the interviewer s notations. See Crane v. 11 Shalala, 76 F.3d 251, 254 (9th Cir. 1996) (questioning whether 12 therapist s two-week exposure to claimant rendered her competent to 13 testify as lay witness); Smith v. Barnhart, 2002 WL 485050, at *4 14 (N.D. Cal. Mar. 27, 2002) (finding one visit by Agency interviewer 15 did not qualify him as a competent lay witness). 16 the Court were prepared to conclude that the interviewer s notations 17 amounted to competent evidence, it is harder still to determine what 18 if any weight should be given to the interviewer s notes. 19 Plaintiff points out and the Court has witnessed, the Agency 20 sometimes relies on these employees observations that, for example, 21 the claimant was able to complete the interview without difficulty, 22 in support of its argument that the claimant was not impaired. 23 it only seems fair that, when, as here, the employee s observations 24 are helpful to the claimant, they should be considered by the ALJ as 25 well. 26 wants the ALJ to consider brief notations by an interviewer in a 415- 27 page record, she needs to alert the ALJ to that fact at the 28 administrative hearing. And, assuming that But, as Thus, In the future, however, the Court advises counsel that if she 4 1 Lay testimony is competent evidence, which an ALJ is required to 2 consider in determining if a claimant is disabled. 3 100 F.3d 1462, 1467 (9th Cir. 1996) (citing Dodrill v. Shalala, 12 4 F.3d 915, 919 (9th Cir. 1993)). 5 ALJ need only provide reasons that are germane to the witness. 6 Dodrill, 12 F.3d at 919. 7 constitutes error. 8 1050, 1056 (9th Cir. 2006). 9 Court can confidently conclude that no reasonable ALJ, when fully 10 crediting the testimony, could have reached a different disability 11 determination. 12 Nguyen v. Chater, In order to reject it, however, the Failure to address lay testimony See Stout v. Comm r, Soc. Sec. Admin., 454 F.3d The error is harmless, however, if the Id. The employee in question met with Plaintiff one time for a short 13 period of time and made notations in a record, which, at best, are 14 confusing and contradictory. 15 accept his or her observation that Plaintiff was childlike and did 16 not understand his condition, it must also accept his or her 17 observation that there was nothing remarkable about Plaintiff s 18 behavior. 19 conclude that no reasonable ALJ fully crediting both observations 20 would have reached a different disability determination based on this 21 evidence alone. 22 concludes that, assuming that the ALJ was required to address the 23 employee s observations, his failure to do so was harmless. 24 C. 25 (AR 200.) (AR 198-201.) While the Court will In this context, the Court can confidently Stout, 454 F.3d at 1056. As such, the Court The Examining Psychiatrist s Opinion Plaintiff complains that the ALJ erred in failing to include 26 limitations found by examining psychiatrist Reynaldo Abejuela that 27 Plaintiff was slightly impaired in his ability to function in the 28 workplace. For the following reasons, the Court agrees. 5 1 Dr. Abejuela examined Plaintiff in May 2007 and found, among 2 other things, that he suffered from slight impairments in his ability 3 to respond to coworkers and supervisors, to respond appropriately to 4 work settings, and to respond to changes in a routine work setting. 5 (AR 14, 319.) 6 testified at the administrative hearing, did not include these 7 limitations in his testimony, though he noted that his opinion was 8 consistent with Dr. Abejuela s opinion. 9 include these findings in his residual functional capacity finding, 10 11 Nonexamining psychologist Joseph Malancharuvil, who (AR 36.) The ALJ did not either. Plaintiff alleges that this was error. The Agency disagrees. 12 It argues that the ALJ s restriction to jobs requiring only simple, 13 repetitive work in a non-public environment with no hazardous 14 materials and no responsibility for the safety of others encompassed 15 all of Dr. Abejuela s limitations. 16 argument is rejected. 17 Abejuela s findings of slight limitations for working with others, 18 including supervisors, responding to a work setting, and responding 19 to changes in a work setting. 20 accept these findings, he was required to provide specific and 21 legitimate reasons that were supported by substantial evidence in the 22 record for rejecting them. 23 (9th Cir. 1995). 24 (Joint Stip. at 31.) This These restrictions do not account for Dr. Although the ALJ was not bound to Lester v. Chater, 81 F.3d 821, 830-31 His failure to do so amounts to error. The question that remains is whether the error was harmless. An 25 error is harmless if it is inconsequential to the ultimate 26 determination of nondisability. 27 Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th 28 Cir. 2008) (explaining, under Stout, where ALJ provides no reason for Stout, 454 F.3d at 1056; see also 6 1 rejecting evidence, reviewing court must consider whether ALJ would 2 have made different decision if he relied on the rejected evidence). 3 It is hard to tell from this vantage point whether slight impairments 4 in the ability to work with supervisors and co-workers and to adjust 5 to a work environment have any impact on a claimant s ability to 6 work. 7 regulations direct that the ALJ should have considered these non- 8 severe impairments when assessing Plaintiff s residual functional 9 capacity. Case law is not instructive on the issue. 20 C.F.R. § 404.1545(a)(2). The applicable This suggests that these 10 limitations may have played a role in the ultimate disability 11 determination. 12 issue is required. 13 D. 14 As such, the Court concludes that remand on this Plaintiff s Mother s Testimony Plaintiff contends that the ALJ improperly rejected his mother s 15 testimony. 16 for further consideration as well. For the following reasons, the Court remands this issue 17 As discussed above in the Court s analysis of the Social 18 Security Administration employee s observations, lay testimony is 19 competent evidence and an ALJ is required to consider it in 20 determining if a claimant is disabled. 21 (citing Dodrill, 12 F.3d at 919). 22 for reasons that are germane to the witness. 23 919. 24 Nguyen, 100 F.3d at 1467 The ALJ may reject lay testimony Dodrill, 12 F.3d at In a March 2007 Third Party Function Report, Plaintiff s mother 25 observed, among other things, that Plaintiff can pay attention for no 26 more than five to ten minutes and has problems with comprehension 27 and concentration, difficulty following instructions [and] completing 28 tasks, [and] the resulting frustration affects his ability to get 7 1 along with others. 2 remember spoken instructions and needs to have them repeated 3 frequently. 4 out that Plaintiff cannot follow through without constant 5 supervision[,] which he resents. 6 workplace. 7 was not supported by the objective findings in the medical evidence 8 of record as reasoned above. 9 what objective findings he was talking about. 10 (AR 219.) (AR 219.) (AR 221.) She noted also that Plaintiff cannot Finally, in a closing narrative, she pointed This causes problems in the The ALJ rejected this testimony because it (AR 16.) He did not, however, explain It is unclear under Ninth Circuit case law whether an ALJ may 11 summarily reject lay testimony based on the fact that it is not 12 supported by the objective medical findings. 13 suggests that this is improper. 14 1116 (9th Cir. 2009) ( Nor under our law could the ALJ discredit her 15 lay testimony as not supported by medical evidence in the record. ) 16 (citing Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996)); see 17 also Massey v. Comm r, Soc. Sec. Admin., 400 Fed. Appx. 192, 194 (9th 18 Cir. 2010) ( [T]he ALJ may not reject lay testimony solely because it 19 is not supported by objective medical evidence. ). 20 cases suggests that it is not. 21 reason for which an ALJ may discount lay testimony is that it 22 conflicts with medical evidence. ); see also Bayliss v. Barnhart, 427 23 F.3d 1211, 1218 (9th Cir. 2005) ( An ALJ need only give germane 24 reasons for discrediting the testimony of lay witnesses. 25 Inconsistency with medical evidence is one such reason. ) (citations 26 omitted); Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) 27 ( The ALJ properly discounted lay testimony that conflicted with the 28 available medical evidence. ). One line of cases See Bruce v. Astrue, 557 F.3d 1113, Another line of See Lewis, 236 F.3d at 511 ( One Absent clear direction from the Ninth 8 1 Circuit, the Court would normally analyze each case separately, 2 focusing on the strength of the lay testimony and the reasons in the 3 record for accepting or rejecting the ALJ s analysis. 4 not perform this analysis here because it has already determined that 5 remand is warranted and recognizes that it is a simple matter for the 6 ALJ to address this issue on remand as well. 7 Court remands the issue to the ALJ to specify why he believes 8 Plaintiff s mother s testimony should be discounted. 9 10 IV. The Court need For this reason, the CONCLUSION For these reasons, the Agency s decision is reversed and the 11 case is remanded for further proceedings consistent with this 12 Opinion. 13 IT IS SO ORDERED. 14 DATED: October 24, 2011. 15 16 17 PATRICK J. WALSH United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Soc Sec\BOLAR, R 1748\Memo_Opinion.wpd 9

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