(SS) German v. Commissioner of Social Security, No. 2:2009cv02976 - Document 25 (E.D. Cal. 2011)
Court Description: MEMORANDUM OPINION and ORDER signed by Magistrate Judge Craig M. Kellison on 3/11/11: Plaintiff's motion for summary judgment is granted 14 . The Commissioner's cross motion for summary judgment is denied 19 . This matter is remanded for further proceedings consistent with this order. The Clerk of the Court is directed to enter judgment and close this file. (Kaminski, H)
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(SS) German v. Commissioner of Social Security Doc. 25 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GLENDA A. GERMAN, 12 Plaintiff, 13 14 No. CIV S-09-2976-CMK vs. MEMORANDUM OPINION AND ORDER COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 / 17 Plaintiff, who is proceeding with retained counsel, brings this action for judicial 18 review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). 19 Pursuant to the written consent of all parties, this case is before the undersigned as the presiding 20 judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending 21 before the court are plaintiff s motion for summary judgment (Doc. 14) and defendant s cross- 22 motion for summary judgment (Doc. 19). For the reasons discussed below, the court will grant 23 plaintiff s motion for summary judgment and remand this matter for further proceedings. 24 /// 25 /// 26 /// 1 Dockets.Justia.com I. PROCEDURAL HISTORY1 1 2 Plaintiff applied for social security benefits on July 30, 2007, alleging an onset of 3 disability on November 15, 2006, due to physical impairments. (Certified administrative record 4 ( CAR ) 74-79, 84-92). Specifically, plaintiff claims disability based on impairments due to 5 migraine headaches, left leg swelling due to mitrovalve prolapse, irritable bowel syndrome, and 6 swollen colon. (CAR 85). Plaintiff s claim was denied initially and upon reconsideration. 7 Plaintiff requested an administrative hearing, which was held on May 1, 2009, before 8 Administrative Law Judge ( ALJ ) Mark Ramsey. In a June 5, 2009 decision, the ALJ 9 concluded that plaintiff is not disabled2 based on the following findings: 10 1 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Because the parties are familiar with the factual background of this case, including plaintiff s medical history, the undersigned does not exhaustively relate those facts here. The facts related to plaintiff s impairments and medical history will be addressed insofar as they are relevant to the issues presented by the parties respective motions. 2 Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. § 401 et seq. Supplemental Security Income ( SSI ) is paid to disabled persons with low income. 42 U.S.C. § 1382 et seq. Under both provisions, disability is defined, in part, as an inability to engage in any substantial gainful activity due to a medically determinable physical or mental impairment. 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R. §§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The following summarizes the sequential evaluation: Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a severe impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 2 1 1. The claimant met the insured status requirements of the Social Security Act through December 31, 2009. 2. The claimant has not engaged in substantial gainful activity since November 15, 2006, the alleged onset date (20 CFR 404.1571 et seq. and 416.971 et seq.). 3. The claimant has the following severe impairments: migraines, obesity, borderline to low average intellectual functioning, and history of controlled gastroesophageal reflux disease, irritable bowel syndrome, and ulcerative colitis (20 CFR 404.1520(c) and 416.920(c)). 4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1525, 404.1526, 416.925 and 416.926). 5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), except limited to simple, repetitive tasks consistent with unskilled work. 6. The claimant is capable of performing past relevant work as a assembler and pricer. This work does not require the performance of work-related activities precluded by the claimant s residual functional capacity (20 CFR 404.1565 and 416.965). 7. The claimant has not been under a disability, as defined in the Social Security Act, from November 15, 2006 through the date of this decision (20 CFR 404.1520(f) and 416.920(f)). 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 (CAR 8-17). After the Appeals Council declined review on September 3, 2009, this appeal 19 followed. 20 II. STANDARD OF REVIEW 21 The court reviews the Commissioner s final decision to determine whether it is: 22 (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a 23 whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 24 25 26 The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id. 3 1 more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 2 (9th Cir. 1996). It is such evidence as a reasonable mind might accept as adequate to support a 3 conclusion. Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, including 4 both the evidence that supports and detracts from the Commissioner s conclusion, must be 5 considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones v. 6 Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner s 7 decision simply by isolating a specific quantum of supporting evidence. See Hammock v. 8 Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative 9 findings, or if there is conflicting evidence supporting a particular finding, the finding of the 10 Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 11 Therefore, where the evidence is susceptible to more than one rational interpretation, one of 12 which supports the Commissioner s decision, the decision must be affirmed, see Thomas v. 13 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal 14 standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th 15 Cir. 1988). 16 17 III. DISCUSSION Plaintiff argues the ALJ erred in his assessment of her RFC by failing to address 18 the findings of a vocational consultant, assessing her credibility, and evaluating the medical 19 opinions. In addition, she argues the ALJ s evaluation of her past work was inadequate and that 20 this action should be remanded for immediate payment. 21 A. 22 Plaintiff contends the ALJ improperly evaluated the medical opinions, in adopting MEDICAL OPINIONS 23 Dr. Walk s opinion that plaintiff could work on a regular sustained basis. She claims this 24 opinion was not supported by the evidence, and the ALJ should have adopted Dr. Dalton s 25 assessment instead. 26 The weight given to medical opinions depends in part on whether they are 4 1 proffered by treating, examining, or non-examining professionals. See Lester v. Chater, 81 F.3d 2 821, 830-31 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating 3 professional, who has a greater opportunity to know and observe the patient as an individual, 4 than the opinion of a non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285 5 (9th Cir. 1996); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The least weight is given 6 to the opinion of a non-examining professional. See Pitzer v. Sullivan, 908 F.2d 502, 506 & n.4 7 (9th Cir. 1990). 8 In addition to considering its source, to evaluate whether the Commissioner 9 properly rejected a medical opinion the court considers whether: (1) contradictory opinions are 10 in the record; and (2) clinical findings support the opinions. The Commissioner may reject an 11 uncontradicted opinion of a treating or examining medical professional only for clear and 12 convincing reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 831. 13 While a treating professional s opinion generally is accorded superior weight, if it is contradicted 14 by an examining professional s opinion which is supported by different independent clinical 15 findings, the Commissioner may resolve the conflict. See Andrews v. Shalala, 53 F.3d 1035, 16 1041 (9th Cir. 1995). A contradicted opinion of a treating or examining professional may be 17 rejected only for specific and legitimate reasons supported by substantial evidence. See Lester, 18 81 F.3d at 830. This test is met if the Commissioner sets out a detailed and thorough summary of 19 the facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a 20 finding. See Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and 21 legitimate reasons, the Commissioner must defer to the opinion of a treating or examining 22 professional. See Lester, 81 F.3d at 830-31. The opinion of a non-examining professional, 23 without other evidence, is insufficient to reject the opinion of a treating or examining 24 professional. See id. at 831. In any event, the Commissioner need not give weight to any 25 conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel, 172 F.3d 1111, 26 1113 (9th Cir. 1999) (rejecting treating physician s conclusory, minimally supported opinion); 5 1 see also Magallanes, 881 F.2d at 751. 2 In his decision, the ALJ discussed both opinions at issue: 3 15 With respect to her mental limitations, a State agency psychologist, Dr. [Dalton3] initially opined that the claimant has a good ability to remember and understand simple instructions as well as work place procedures; is able to carry out simple instructions, follow simple work-like procedures, and make simple work-related decisions; appears to have a fair to poor ability to sustain attention throughout extended periods of time due to her learning disorder; appears to have a poor ability to perform at a consistent pace and maintain a regular 40 hour work schedule; has a fair to good ability to interact appropriately with the general public and co-workers; appears to have a fair ability to respond to supervisors; and has a fair ability to respond appropriately to basic work setting changes. However, the undersigned gives greater weight to a second State agency physician, Dr. Walk, who opined the claimant is independent in activities of daily living and has been able to work at unskilled jobs on a sustained basis and retains the mental residual functional capacity to continue to do so. This is consistent with her ability to perform chores, handle money, a savings account and a checking account. Accordingly, Dr. [Dalton] s opinion that she would have a fair to poor ability to perform at a consistent pace and maintain a regular 40 hour work schedule is not consistent with the evidence and is not credited. This is also consistent with the findings of Dr. Wilkin[field4] that would limit her to simple, repetitive tasks on a regular and continuing basis. (CAR at 15). 16 Plaintiff argues Dr. Walk s opinion is not supported by substantial evidence. 4 5 6 7 8 9 10 11 12 13 14 17 However, the challenged opinions are both non-examining professional assessments. There is no 18 treating or examining physician opinion5 to consider. Thus, one non-examining professional 19 3 20 21 The ALJ referred to Dr. Dalton as Dr. Daigle, which appears to be a typographical error. The state agency psychologist who reviewed plaintiff s records was Dr. Dalton, and no Dr. Daigle appears in the record. See CAR at 266-83. 4 22 23 The ALJ referred to Dr. Wilkenfield as Dr Wilkinson, which also appears to be a typographical error. The psychologist who examined plaintiff in August 2007, and who the ALJ s opinion refers to at exhibit 4F, is actually Dr. Wilkenfield. 5 24 25 26 Dr. Wilkenfield, a clinical psychologist the ALJ mentioned, did examine plaintiff for the Calworks program to determine whether she has any learning disorder. Dr. Wilkenfield found Plaintiff would likely benefit from individual counseling to improve her coping and stress management skills, and a literacy program due to her limited abilities. Dr. Wilkenfield also noted her limited employment background, and that she may benefit from a meeting with a vocational or occupational counsel. However, he did not find plaintiff to have any specific 6 1 opinion does not carry greater weight than the other, and the ALJ had a duty to resolve any 2 conflict between them. It is not for this court to substitute its opinion for that of the ALJ. Indeed, 3 as stated above, where the evidence is susceptible to more than one rational interpretation, one of 4 which supports the ALJ s decision, that decision must be affirmed. The ALJ s decision to rely 5 on Dr. Walk s opinion is not reversible error. The ALJ had the duty to resolve the conflict 6 between the two opinions, which he did based on a reasonable interpretation of the evidence. It 7 is not for this court to reevaluate the evidence, but to determine whether the ALJ s determination 8 was erroneous. There is no basis for the undersigned to find the ALJ erred in resolving the 9 conflict between these two opinions. 10 B. 11 Plaintiff contends the ALJ erred in his credibility determination, which was based 12 PLAINTIFF S CREDIBILITY on an insufficient credibility evaluation which ignored plaintiff s explanations. 13 The Commissioner determines whether a disability applicant is credible, and the 14 court defers to the Commissioner s discretion if the Commissioner used the proper process and 15 provided proper reasons. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). An explicit 16 credibility finding must be supported by specific, cogent reasons. See Rashad v. Sullivan, 903 17 F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient. See Lester v. Chater, 81 F.3d 18 821, 834 (9th Cir. 1995). Rather, the Commissioner must identify what testimony is not credible 19 and what evidence undermines the testimony. See id. Moreover, unless there is affirmative 20 evidence in the record of malingering, the Commissioner s reasons for rejecting testimony as not 21 credible must be clear and convincing. See id.; see also Carmickle v. Commissioner, 533 F.3d 22 1155, 1160 (9th Cir. 2008) (citing Lingenfelter v. Astrue, 504 F.3d 1028, 1936 (9th Cir. 2007), 23 and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)). 24 If there is objective medical evidence of an underlying impairment, the 25 26 limitations, such as a limitation in her ability to perform at a consistent pace or maintain a normal work week. There is also no specific assessment of plaintiff s abilities by Dr. Wilkenfield. 7 1 Commissioner may not discredit a claimant s testimony as to the severity of symptoms merely 2 because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d 3 341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater: 4 The claimant need not produce objective medical evidence of the [symptom] itself, or the severity thereof. Nor must the claimant produce objective medical evidence of the causal relationship between the medically determinable impairment and the symptom. By requiring that the medical impairment could reasonably be expected to produce pain or another symptom, the Cotton test requires only that the causal relationship be a reasonable inference, not a medically proven phenomenon. 5 6 7 8 80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in Cotton v. Bowen, 799 9 F.2d 1403 (9th Cir. 1986)). 10 The Commissioner may, however, consider the nature of the symptoms alleged, 11 including aggravating factors, medication, treatment, and functional restrictions. See Bunnell, 12 947 F.2d at 345-47. In weighing credibility, the Commissioner may also consider: (1) the 13 claimant s reputation for truthfulness, prior inconsistent statements, or other inconsistent 14 testimony; (2) unexplained or inadequately explained failure to seek treatment or to follow a 15 prescribed course of treatment; (3) the claimant s daily activities; (4) work records; and (5) 16 physician and third-party testimony about the nature, severity, and effect of symptoms. See 17 Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the 18 claimant cooperated during physical examinations or provided conflicting statements concerning 19 drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the 20 claimant testifies as to symptoms greater than would normally be produced by a given 21 impairment, the ALJ may disbelieve that testimony provided specific findings are made. See 22 Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 23 /// 24 /// 25 /// 26 /// 8 1 Here, the ALJ stated: 2 11 In making this assessment, the undersigned has also considered the claimant s testimony of pain and inability to engage in work activity and finds her testimony not fully credible. As noted, she does a wide range of activities and such activities do not indicate a disabling impairment of the claimant s residual functional capacity. The claimant has not participated in the treatment normally associated with a severe pain syndrome, i.e. has taken various medications for headaches but often selfdiscontinues them. Current records note she is on over-the-counter medication. In addition, her testimony of migraine headaches about four times per month is inconsistent with her infrequent visits for treatment and minimal emergency room treatment. No significant atrophy, neurological deficits, radicular pain, weakness, reflex absence, or decreased sensation were reported. The type, dosage, and side effects of medication employed to treat her impairment would not preclude her from performing work at a light unskilled level. On the basis of the foregoing, the undersigned concludes her allegations of limitations precluding all work are unsupported by the evidence. (CAR at 15-16). 12 Plaintiff argues the ALJ relied on insufficient reasons, and failed to take into 3 4 5 6 7 8 9 10 13 consideration the reasons for plaintiff s lack of medical treatment, daily activities in relation to 14 her migraine headaches, and her alternatives to the use of medications. Those reasons, as 15 explained in plaintiff s moving papers, include her limited ability to obtain medial treatment due 16 to her socio-economic status, her daily activities were directly affected by her migraine 17 headaches (she was only able to do the activities identified when she was not experiencing a 18 migraine, but was unable to do so during a migraine which occurred about once a week), and her 19 developing a method of coping with her headaches by remaining in bed with lights out. 20 Defendant responds that the ALJ used legally proper considerations for assessing plaintiff s 21 credibility. 22 The undersigned agrees that each of the reasons provided, on its own, may not be 23 sufficiently clear and convincing. However, taken together the undersigned cannot find the 24 ALJ erred. The undersigned also acknowledges defendant s argument that these reasons were 25 not provided to the ALJ during the underlying evaluation for the ALJ to weigh. While plaintiff 26 did testify that she was unable to participate in some of her daily routine activities during a 9 1 headache episode, her lack of medical treatment and use of prescribed medications was not 2 explained. While Plaintiff states that her headaches have gotten worse over the years, there is no 3 increased medical treatment sought as the ALJ identified. Plaintiff may have had limited access 4 to a neurologist, as discussed at the hearing, due to her lack of medical insurance, but she did not 5 have any emergency room visits which do not require insurance nor did she have an increase in 6 her visits to the clinics to deal with the increase headaches. As the ALJ discussed, this is 7 inconsistent, and supportive of the ALJ s determination. Similarly, the record supports the ALJ s 8 determination that plaintiff decided to stop certain medications on her own instead of with the 9 assistance and advise of medical professionals. If there were adverse side-effects or insufficient 10 results obtained from the medications prescribed, there was no follow up with the prescribing 11 physician to determine the best approach, including whether additional time was required to 12 allow the medication to work. Instead, plaintiff decided to stop the medication and treat herself 13 with her alternative coping mechanism of remaining in bed in a dark room. 14 The undersigned cannot find the ALJ s credibility determination to be 15 unsupported or based on improper considerations. Rather, the undersigned finds the ALJ s 16 credibility determination was supported by the record as a whole. The ALJ did not rely solely on 17 the lack of objective medical evidence to support his finding, nor can the court find that he 18 misconstrued or ignored supportive relative evidence. While the ALJ s interpretation of 19 plaintiff s testimony and other evidence may not be the only reasonable one, it is still a 20 reasonable interpretation and is supported by substantial evidence. Providing the ALJ s decision 21 with the proper deference, the court finds the ALJ provided clear and convincing reasons 22 supported by substantial evidence. 23 D. VOCATIONAL CONSULTATION 24 Finally, plaintiff argues the ALJ erred by failing to address a vocational evaluation 25 contained in the record. Plaintiff submitted to a five day vocational evaluation in December 26 2007, at the request of the California State Department of Rehabilitation. The evaluation was 10 1 ordered to assess plaintiff s academic achievement levels and her aptitudes and abilities. 2 Plaintiff argues the ALJ failed to consider the evaluator s determination as probative other 3 evidence. Defendant counters that the evaluator s report was based on plaintiff s subjective 4 complaints which the ALJ determined were not entirely credible, plaintiff told the evaluator she 5 believed she could perform full-time work, plaintiff fails to point to any specific limitation which 6 should have been included in the RFC, and the RFC determination is the duty of the ALJ not that 7 of a vocational evaluator. 8 9 In determining whether a claimant is disabled, an ALJ generally must consider lay witness testimony concerning a claimant s ability to work. See Dodrill v. Shalala, 12 F.3d 915, 10 919 (9th Cir. 1993); 20 C.F.R. §§ 404.1513(d)(4) & (e), 416.913(d)(4) & (e). Indeed, lay 11 testimony as to a claimant s symptoms or how an impairment affects ability to work is competent 12 evidence . . . and therefore cannot be disregarded without comment. See Nguyen v. Chater, 100 13 F.3d 1462, 1467 (9th Cir. 1996). Consequently, [i]f the ALJ wishes to discount the testimony 14 of lay witnesses, he must give reasons that are germane to each witness. Dodrill, 12 F.3d at 15 919. 16 The ALJ, however, need not discuss all evidence presented. See Vincent on 17 Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). Rather, he must explain 18 why significant probative evidence has been rejected. Id. (citing Cotter v. Harris, 642 F.2d 700, 19 706 (3d Cir.1981). Applying this standard, the court held that the ALJ properly ignored evidence 20 which was neither significant nor probative. See id. at 1395. As to a letter from a treating 21 psychiatrist, the court reasoned that, because the ALJ must explain why he rejected 22 uncontroverted medical evidence, the ALJ did not err in ignoring the doctor s letter which was 23 controverted by other medical evidence considered in the decision. See id. As to lay witness 24 testimony concerning the plaintiff s mental functioning as a result of a second stroke, the court 25 concluded that the evidence was properly ignored because it conflicted with the available 26 medical evidence assessing the plaintiff s mental capacity. Id. 11 1 In Stout v. Commissioner, the Ninth Circuit recently considered an ALJ s silent 2 disregard of lay witness testimony. See 454 F.3d 1050, 1053-54 (9th Cir. 2006). The lay witness 3 had testified about the plaintiff s inability to deal with the demands of work due to alleged 4 back pain and mental impairments. Id. The witnesses, who were former co-workers testified 5 about the plaintiff s frustration with simple tasks and uncommon need for supervision. See id. 6 Noting that the lay witness testimony in question was consistent with medical evidence, the 7 court in Stout concluded that the ALJ was required to consider and comment upon the 8 uncontradicted lay testimony, as it concerned how Stout s impairments impact his ability to 9 work. Id. at 1053. The Commissioner conceded that the ALJ's silent disregard of the lay 10 testimony contravened Ninth Circuit case law and the controlling regulations, and the Ninth 11 Circuit rejected the Commissioner s request that the error be disregarded as harmless. See id. at 12 1054-55. The court concluded: 13 Because the ALJ failed to provide any reasons for rejecting competent lay testimony, and because we conclude that error was not harmless, substantial evidence does not support the Commissioner s decision . . . . 14 15 16 Id. at 1056-67. From this case law, the court concludes that the rule for lay witness testimony 17 depends on whether the testimony in question is controverted or consistent with the medical 18 evidence. If it is controverted, then the ALJ does not err by ignoring it. See Vincent, 739 F.2d at 19 1395. If lay witness testimony is consistent with the medical evidence, then the ALJ must 20 consider and comment upon it. See Stout, 454 F.3d at 1053. However, the Commissioner s 21 regulations require the ALJ consider lay witness testimony in certain types of cases. See Smolen 22 v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); SSR 88-13. That ruling requires the ALJ to 23 consider third-party lay witness evidence where the plaintiff alleges pain or other symptoms that 24 are not shown by the medical evidence. See id. Thus, in cases where the plaintiff alleges 25 impairments, such as chronic fatigue or pain (which by their very nature do not always produce 26 clinical medical evidence), it is impossible for the court to conclude that lay witness evidence 12 1 concerning the plaintiff s abilities is necessarily controverted such that it may be properly 2 ignored. Therefore, in these types of cases, the ALJ is required by the regulations and case law to 3 consider lay witness evidence. 4 Here, the vocational evaluator discussed plaintiff s physical abilities, including 5 her abilities to sit, stand, walk, lift, bend, and reach. The evaluator relied predominately on 6 plaintiff s subjective statements, which the ALJ found to be largely not credible. In addition, 7 these same physical abilities were address by the consultative internal medicine evaluator, Dr. 8 Garfinkel. The results of the two evaluations conflicted, which renders the results of the 9 vocational evaluation controverted by the medical evidence. As such the ALJ did not err in 10 ignoring it and addressing the medical evaluations instead. 11 The issue raised by plaintiff is not related to her pain or other symptoms which are 12 not shown by medical evidence. Rather, plaintiff argues her inability to work a full 40-hour work 13 week. This inability is allegedly due to her headaches, which have been medically documented. 14 However, the ALJ determined that plaintiff did not suffer from the headaches to the extent she 15 alleged, and that her claims otherwise where not credible. 16 The undersigned finds no error in the ALJ s RFC determination. 17 E. 18 Plaintiff next argues the ALJ erred in determining she was capable of performing 19 her past work on the basis that the ALJ failed to make the required factual findings as to her past 20 relevant work. Specifically, plaintiff argues the ALJ failed to cite specific jobs descriptions 21 contained within the DOT or call a vocational expert to testify at the hearing. 22 PAST WORK As defendant argues, the plaintiff bears the burden at step four to prove she is 23 incapable of performing her past work. See Villa v. Heckler, 797 F.2d 794, 797 (9th Cir. 1986). 24 However, as plaintiff sets forth, while plaintiff carries the burden of proof, the ALJ is still 25 required to set forth specific factual findings as to what plaintiff s abilities are, what her prior 26 relevant work required, and that plaintiff retains the ability to perform her past work. See Pinto 13 1 v. Masssanari, 249 F.3d 840, 844-45 (9th Cir. 2001). Plaintiff goes further and argues that the 2 ALJ is required to make factual findings as to plaintiff s past relevant work both as it was 3 actually performed and as it is generally performed in the national economy. However, the Ninth 4 Circuit explicitly stated in Pinto [w]e have never required explicit findings at step four 5 regarding a claimant s past relevant work both as generally performed and as actually 6 performed. Id. at 845 (emphasis in original). Rather, the ALJ must make relevant findings as to 7 whether Plaintiff can perform her past relevant work either on the basis of how the work is 8 generally performed or as she actually performed it. 9 Here, the ALJ relied on plaintiff s information as to how she actually performed 10 her past relevant work. The ALJ stated she is capable of performing her past relevant work as an 11 assembler and pricer, as [t]hese jobs require no more than light work activity and do not require 12 the performance of more than simple, repetitive tasks. (CAR at 16). 13 Exertional work levels have been defined, providing a working definition of the 14 different levels of exertion required to perform certain work. Light work has been defined as 15 that involving lifting no more than 20 pounds at a time with frequent lifting or carrying of objects 16 weighing up to 10 pounds. See 20 C.F.R. §§ 404.1567(b) and 416.967(b). Thus, the ALJ s 17 rather conclusory finding that plaintiff s past relevant work requires no more than light work 18 activity can be defined as requiring lifting no more than 20 pounds. There is support in the 19 record for finding plaintiff s prior relevant work required lifting no more than 20 pounds, 20 including the work history report plaintiff provided. (CAR 96-86). Plaintiff stated that she was 21 only required to lift up to ten pounds in job number one, and up to 20 pounds in job number two. 22 The ALJ found plaintiff capable performing light work, specifically finding plaintiff capable of 23 lifting 20 pounds occasionally and ten pounds frequently. (CAR at 15). The factual finding 24 that plaintiff s past relevant work requires no more than light work may therefore be sufficient as 25 to that restriction. 26 /// 14 1 However, the RFC also includes a restriction that Plaintiff is only capable of 2 performing simple, repetitive tasks consistent with unskilled work. The work history report 3 plaintiff provided sets forth that job number one required the use of machines, tools or equipment 4 as well as writing and completing reports; however, it did not require the use of technical 5 knowledge or skills. Thus, job number one could perhaps be classified as unskilled work 6 performing simple, repetitive tasks. However, as for job number two, plaintiff indicates she was 7 required to use technical knowledge or skill in the performance of that job. The ALJ failed to 8 make any factual findings as to the skill requirements of plaintiff s prior relevant work. Because 9 the ALJ did not make those factual findings, there are no factual findings for the court to review. 10 The undersigned finds that the conclusory statement that plaintiff s past relevant work do not 11 require the performance of more than simple, repetitive tasks is insufficient to meet the ALJ s 12 duty to support his conclusion, especially in light of description of job number two provided by 13 plaintiff. Thus, while the conclusion may be correct, the ALJ made reversible error in failing to 14 support his conclusion with a sufficient factual finding for this court to review. 15 F. 16 Finally, plaintiff contends this case requires remand for payment rather than APPROPRIATE REMAND 17 remand for further proceedings. The undersigned does not agree. The ALJ s failure to set forth 18 the factual findings to support his conclusion that plaintiff is capable of performing her past 19 relevant work is an insufficient basis to remand for payment. Rather, a remand for further 20 proceedings is appropriate. 21 22 IV. CONCLUSION For the foregoing reasons, this matter will be remanded under sentence four of 42 23 U.S.C. § 405(g) for further development of the record and/or further findings addressing the 24 deficiencies noted above. 25 Accordingly, IT IS HEREBY ORDERED that: 26 1. Plaintiff s motion for summary judgment (Doc. 14) is granted; 15 1 2 2. 3. 5 This matter is remanded for further proceedings consistent with this order; 4. The Clerk of the Court is directed to enter judgment and close this file. denied; 3 4 The Commissioner s cross motion for summary judgment (Doc. 19) is and 6 7 8 9 DATED: March 11, 2011 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 16
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