Opinion
No. CV-10-269-JPH.
July 18, 2011
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR FURTHER PROCEEDINGS (ECF No. 13)
BEFORE THE COURT are cross-motions for summary judgment noted for hearing without oral argument on August 26, 2011 (ECF No. 13, 17). Attorney Donald C. Bell represents plaintiff; Special Assistant United States Attorney David R. Johnson represents the Commissioner of Social Security (Commissioner). The parties have consented to proceed before a magistrate judge (ECF No. 7). On June 9, 2011, plaintiff filed a reply (ECF No. 21). After reviewing the administrative record and the briefs filed by the parties, the court GRANTS plaintiff's motion for summary judgment ( Ct. Rec. 13) and REVERSES AND REMANDS pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings. The court DENIES defendant's motion for summary judgment ( ECF No. 17).
JURISDICTION
Plaintiff applied for disability insurance benefits (DIB) on December 17, 2007, alleging disability since February 1, 2000, due to memory loss, carpal tunnel syndrome, diabetes, bladder dysfunction, eye problems and a thyroid condition (Tr. 89-91, 103). Her applications were denied initially and on reconsideration (Tr. 49-51, 53-54).
Administrative Law Judge (ALJ) Benita A. Lobo held a hearing November 5, 2009 (Tr. 23-46). Plaintiff, represented by counsel, and a vocational expert testified. On December 15, 2009, the ALJ issued an unfavorable decision (Tr. 9-15). The Appeals Council denied review on July 28, 2010 (Tr. 1-3).
The ALJ's decision became the final decision of the Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review pursuant to 42 U.S.C. § 405(g) on August 19, 2010 (ECF No. 1, 4).
STATEMENT OF FACTS
The facts have been presented in the administrative hearing transcripts, the ALJ's decision, the briefs of both parties, and are briefly summarized here.
Ms. Snook was 48 years old on her last insured date and 53 at the hearing (Tr. 25, 89). She has a bachelor's degree in nursing and worked as a school nurse. She has also worked as a maid, landscaper, bakery worker, and at the Census Department (Tr. 26-27, 35). Plaintiff lives with her spouse. She testified she cannot work due to memory problems (Tr. 28).
SEQUENTIAL EVALUATION PROCESS
The Social Security Act (the Act) defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a Plaintiff shall be determined to be under a disability only if any impairments are of such severity that a plaintiff is not only unable to do previous work but cannot, considering plaintiff's age, education and work experiences, engage in any other substantial gainful work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
The Commissioner has established a five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step one determines if the person is engaged in substantial gainful activities. If so, benefits are denied. 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I). If not, the decision maker proceeds to step two, which determines whether plaintiff has a medically severe impairment or combination of impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
If plaintiff does not have a severe impairment or combination of impairments, the disability claim is denied. If the impairment is severe, the evaluation proceeds to the third step, which compares plaintiff's impairment with a number of listed impairments acknowledged by the Commissioner to be so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or equals one of the listed impairments, plaintiff is conclusively presumed to be disabled. If the impairment is not one conclusively presumed to be disabling, the evaluation proceeds to the fourth step, which determines whether the impairment prevents plaintiff from performing work which was performed in the past. If a plaintiff is able to perform previous work, that Plaintiff is deemed not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, plaintiff's residual functional capacity (RFC) assessment is considered. If plaintiff cannot perform this work, the fifth and final step in the process determines whether plaintiff is able to perform other work in the national economy in view of plaintiff's residual functional capacity, age, education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987).
The initial burden of proof rests upon plaintiff to establish a prima facie case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden is met once plaintiff establishes that a physical or mental impairment prevents the performance of previous work. The burden then shifts, at step five, to the Commissioner to show that (1) plaintiff can perform other substantial gainful activity and (2) a "significant number of jobs exist in the national economy" which plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984).
STANDARD OF REVIEW
Congress has provided a limited scope of judicial review of a Commissioner's decision. 42 U.S.C. § 405(g). A Court must uphold the Commissioner's decision, made through an ALJ, when the determination is not based on legal error and is supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). "The [Commissioner's] determination that a plaintiff is not disabled will be upheld if the findings of fact are supported by substantial evidence." Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 1983) ( citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-602 (9th Cir. 1989); Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 1988). Substantial evidence "means such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations omitted). "[S]uch inferences and conclusions as the [Commissioner] may reasonably draw from the evidence" will also be upheld. Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). On review, the Court considers the record as a whole, not just the evidence supporting the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) ( quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)).
It is the role of the trier of fact, not this Court, to resolve conflicts in evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational interpretation, the Court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be set aside if the proper legal standards were not applied in weighing the evidence and making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the administrative findings, or if there is conflicting evidence that will support a finding of either disability or nondisability, the finding of the Commissioner is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987).
ALJ'S FINDINGS
At step one the ALJ found plaintiff did not engage in substantial gainful activity between onset on February 1, 2000, and the date her insurance expired, December 31, 2004 (Tr. 11). At steps two and three, ALJ Lobo found plaintiff suffers from type I insulin dependent diabetes mellitus, a severe impairment that does not meet or medically equal a Listed impairment (Tr. 11-12). She found plaintiff less than completely credible (Tr. 14). At step four the ALJ found plaintiff is able to perform her past work as a school nurse and as a maid (Tr. 15). Because the ALJ found plaintiff could perform her past work, she is not disabled as defined by the Social Security Act (Tr. 15).
ISSUES
Plaintiff alleges the ALJ erred when she weighed the opinions of treating and examining professionals, assessed Ms. Snook's credibility, failed to discuss written lay witness and a VE's statements, and failed to "conduct a proper step four assessment" (ECF No. 14 at 11, 15-16, 18). The Commissioner answers the Court should affirm the decision because it is supported by the evidence and free of harmful error (Ct. Rec. 18 at 17, 20).
The third issue is determinative. The ALJ erred by rejecting lay witness evidence without comment. The error is harmful and therefore dispositive.
DISCUSSION
A. Lay witness evidence
Plaintiff alleges the ALJ failed to properly weigh statements given by a lay witness, her spouse (Ct. Rec. 14 at 16-18). Ms. Snook's spouse, William, submitted a report dated January 11, 2008 (Tr. 1117-124). The Commissioner admits the ALJ failed to discuss this evidence.
In determining disability an ALJ must consider lay witness testimony concerning a claimant's ability to work. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009), citing Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006); see also 20 C.F.R. §§ 404.1513(d)(4), (e). Such testimony is competent evidence and " cannot be disregarded without comment." Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). If an ALJ disregards lay witness testimony he must provide reasons "that are germane to each witness." (Id.). The ALJ's reasons "germane to each witness" must be specific. Stout v. Comm'r, 454 F.3d at 1054 (explaining the ALJ, not the district court, is required to provide specific reasons for rejecting lay testimony).
When Mr. Snook made his statement he lived with plaintiff and had known her for 12-13 years (Tr. 117). He states plaintiff does not remember to finish jobs; she is no longer able to timely pay bills; sometimes needs help dressing; needs reminders to care for her feet; needs grooming, insulin, and diuretic pill reminders (Tr. 118-119). Low blood sugars can cause her to forget where her car is parked, leave her purse somewhere, and/or become disoriented. She misplaces or forgets to pay bills (Tr. 120). He has seen her "get panicky when a[n] insignificant problem arose" (Tr. 123). Sometimes smoke fills the kitchen and food burns (Tr. 119). He notes plaintiff wears a pump so she can have insulin throughout the night. Mr. Snook states plaintiff has suffered with diabetes most of her life, not simply at the present time (Tr. 124). He describes her as a person who has gone from being a highly paid nurse to a person who, at age 51, helps in the garden, perhaps 15 minutes to an hour a day (Tr. 119, 124). He notes a general decline in activities such as memory, concentration, completing tasks, understanding, and following directions (Tr. 122). A lot social activities "have dropped off" ( Id.). Mr. Snook is retired and spends most of his days with plaintiff (Tr. 117).
The Commissioner asserts because Mr. Snook's opinion "was not significant or probative" the ALJ did not need to address it (ECF No. 18 at 17). He argues the limitations Mr. Snook describes would be relevant to plaintiff's past work as a nurse, but not to her work as maid; and, because the statements do not describe her condition in 2004 (her last insured date), any error by the ALJ in failing to address Mr. Snook's opinion is harmless because it would not change the result. The argument is flawed in at least three respects.
First, the ALJ's error is not harmless because if the lay witness's description of plaintiff's functioning is accepted as true, it may support finding plaintiff disabled. Mr. Snook describes limitations, which, if credited, are evidence of mental limitations that may preclude all work. Forgetfulness may be as limiting to a maid as to a nurse.
Second, the Commissioner errs by characterizing the lay witness's observations as current. The witness clearly describes mental decline over a period of time.
Last, the Commissioner errs because the ALJ in this case disregarded the lay testimony without comment. The court is left to guess why she may have rejected the opinion. In determining whether a claimant is disabled, an ALJ must consider lay witness testimony concerning a claimant's ability to work. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009); Stout v. Comm'r, 454 F.3d 1050, 1053 (9th Cir. 2006). Such testimony is competent evidence and " cannot be disregarded without comment." If an ALJ disregards the testimony of a lay witness, he must provide specific and germane reasons. Bruce, 557 F.3d at 1115, citing Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996); Stout, 454 F. 3d at 1054 (emphasized in Bruce).
The ALJ erred by disregarding the lay witness's statements without comment. Regardless of whether they are interested parties, "friends and family members in a position to observe a claimant's symptoms and daily activities are competent to testify as to [his or] her condition." Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009), citing Dodrill v. Shalala, 12 F.3d 915, 918-919 (9th Cir. 2009).
The ALJ, not the district court, is required to provide specific reasons for rejecting lay testimony. Bruce, 557 F.3d at 1115, citing Stout, 454 F.3d at 1054.
Plaintiff is correct. The ALJ erred by disregarding Mr. Snook's statements without comment. And the error is harmful. Because this issue is dispositive the court grants plaintiff's motion and orders the matter remanded for further administrative proceedings.
On remand the ALJ may wish to utilize the services of a testifying psychologist to clarify whether plaintiff suffers from a severe mental impairment as defined by the Act.
In addition, on remand the ALJ should clarify the step four finding. At page 15, the ALJ found plaintiff was capable of performing her past relevant work as a school nurse and as a maid. At page 14, the ALJ states "While the claimant was unable to perform her past duties as a nurse during the period mentioned, there is no evidence that she was precluded from all work activities." The inconsistency should be clarified on remand.
It is the role of the trier of fact, not this Court, to resolve conflicts in evidence. Richardson v. Perales, 402 U.S. 389, 400 (1971). A decision supported by substantial evidence will be set aside if the proper legal standards were not applied in weighing the evidence and making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1987).
The court wishes to make clear it expresses no opinion as to what the ultimate outcome on remand will or should be. The Commissioner is free to give whatever weight to the lay evidence she deems appropriate. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir 1982) ("[Q]uestions of credibility and resolution of conflicts in the testimony are functions solely of the Secretary.")
CONCLUSION
Having reviewed the record and the ALJ's conclusions, this Court finds the ALJ's decision contains harmful legal error requiring remand for additional proceedings.
IT IS ORDERED:
1. Plaintiff's Motion for Summary Judgment (ECF No. 13) is GRANTED. The decision is REVERSED and REMANDED pursuant to sentence four for further administrative proceedings.
2. Defendant's Motion for Summary Judgment (ECF No. 17) is DENIED.
3. An application for fees may be filed by separate motion.
The District Court Executive is directed to file this Order, provide copies to counsel for Plaintiff and Defendant, enter judgment in favor of Plaintiff, and CLOSE this file.