Opinion
Case No. ED CV 09-2037-PJW.
April 6, 2010
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
Before the Court is Plaintiff's appeal of a decision by Defendant Social Security Administration ("the Agency"), denying her application for Supplemental Security Income benefits ("SSI"). Plaintiff claims that the Administrative Law Judge ("ALJ") erred in: 1) failing to properly consider her husband's testimony; 2) not properly taking into account her mental impairment; and 3) rejecting the opinion of her treating psychiatrist. For the reasons explained below, the Court concludes that the ALJ erred when he failed to address the husband's testimony and remand is warranted for further consideration of this issue.
II. SUMMARY OF PROCEEDINGS
On April 18, 2006, Plaintiff applied for SSI and Disability Insurance benefits ("DIB"), claiming that she was unable to work because of depression, diabetes, shoulder pain, and problems with her eyes, lungs, and kidneys. (Administrative Record ("AR") 17, 92, 117-19.) The Agency denied the applications initially and on reconsideration. (AR 86-97, 101-11.) Plaintiff then requested and was granted a hearing before an ALJ. (AR 26, 116.) On April 2, 2008, Plaintiff appeared at the hearing with counsel and testified. (AR 42-60.) At the hearing, she withdrew her application for DIB and proceeded only on her SSI claim. (AR 36-37.) On September 25, 2008, the ALJ issued a decision denying her application for SSI. (AR 17-25.) Plaintiff appealed to the Appeals Council, which denied her request for review. (AR 1-4.) She then filed the instant action.III. DISCUSSION
1. Lay Witness Testimony
Plaintiff's husband testified at the administrative hearing that Plaintiff cannot go outside by herself or be around people very much; consequently, she only leaves the house to accompany him to the grocery store or to be taken to a doctor's appointment. (AR 63, 64, 66.) He told the ALJ that Plaintiff does not get out of bed three days a week and, on other days, she only goes to the kitchen to get some food. (AR 67.) The ALJ failed to mention the husband's testimony in his decision. (AR 17-25.) Plaintiff contends that this oversight constitutes reversible error. The Court agrees.
Lay testimony is competent evidence and an ALJ is required to consider it in determining if a claimant is disabled. See Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) ("Lay testimony as to a claimant's symptoms is competent evidence which the Secretary must take into account."). Failure to consider lay testimony constitutes error. See Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006). Further, the error mandates reversal unless the district court can conclude that no reasonable ALJ, when fully crediting the testimony, could have found that the claimant was disabled. Id. ("[W]e hold that where the ALJ's error lies in a failure to properly discuss competent lay testimony favorable to the claimant, a reviewing court cannot consider the error harmless unless it can confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different disability determination.").
Accepting the husband's testimony that Plaintiff does not go out by herself, does not want to be around other people, leaves the house only for doctor's appointments and to shop, and does not get out of bed three days a week, a reasonable ALJ would likely have concluded that Plaintiff was disabled. Thus, the ALJ's error here was not harmless and remand is warranted.
Defendant disagrees. It argues that the husband's testimony would not have altered the outcome since, in many respects, it merely echoed Plaintiff's testimony and Plaintiff's testimony was properly rejected by the ALJ. (Joint Stip. at 7-8.) It points out further that, where the husband's testimony did not echo Plaintiff's testimony, it contradicted it, further calling into question Plaintiff's claims.
This argument is rejected out of hand. This is not the time or place to argue how the ALJ could have rejected the husband's testimony had he addressed it. This is the time and place to set forth what the husband said and then determine if, assuming those statements were fully credited by the ALJ, he could have concluded that Plaintiff was disabled. Here, it seems clear that a reasonable ALJ could have so concluded and, therefore, remand is required.
2. The ALJ's Credibility Evaluation
Though set forth under the heading, "whether the ALJ properly evaluated Susie Acosta's mental impairments," (Joint Stip. at 3), Plaintiff's second argument relates to the ALJ's finding that she was not credible. Plaintiff complains throughout this section that this finding was erroneous. For the following reasons, the Court concludes that the ALJ's finding that Plaintiff was not credible was based on specific and legitimate reasons and that those reasons were supported by substantial evidence in the record. As a result, it will be affirmed.
ALJs are tasked with judging the credibility of witnesses. In making these credibility determinations, ALJs employ ordinary credibility evaluation techniques. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). Where a claimant has produced objective medical evidence of an impairment which could reasonably be expected to produce the symptoms alleged and there is no evidence of malingering, the ALJ can only reject the claimant's testimony for specific, clear, and convincing reasons. Id. at 1283-84. These reasons must be supported by substantial evidence in the record. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
Though the ALJ arguably concluded that Plaintiff was malingering, at least as to her claim that she was experiencing psychotic episodes, (AR 22 ("[T]he claimant's conduct strongly suggests that she greatly exaggerated, if not fabricated symptoms at Arcadia Mental Health."), the ALJ did not state that he was finding that Plaintiff was malingering so the Court will use the more stringent standard in evaluating the credibility determination.
When Plaintiff applied for benefits in April 2006, she reported that she was suffering from, among other things, depression. (AR 153.) Her application was denied initially in August 2006 and on reconsideration in January 2007. In June 2007, Plaintiff went to Arcadia Mental Health Center for treatment for the first time, complaining for the first time that she was suffering from hallucinations and phobic and persecutory ideation. (AR 319-24, 333-36.) As a result, her Global Assessment of Functioning was assessed at 31, (AR 324), meaning that she was severely impaired. See Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. text rev. 2000). The ALJ discounted Plaintiff's claims, finding that she was at a minimum exaggerating and, likely, simply feigning symptoms. (AR 21-23.) Plaintiff argues that the ALJ erred in concluding that she was not credible. There is no merit to this argument.
The ALJ found that Plaintiff never reported that she was suffering from major depressive disorder with psychotic features-i.e., paranoia, hallucinations, and hearing voices — until after her applications for benefits were denied by the Agency in January 2007, and that this undermined her credibility. (AR 21-22.) The fact that Plaintiff did not report psychotic symptoms until after her claim was denied by the Agency is supported by substantial evidence in the record and is a legitimate reason to question a claimant's credibility. See De Guzman v. Astrue, 343 Fed. Appx. 201, 204 (9th Cir. 2009) (affirming adverse credibility finding where the evidence supported the ALJ's finding that there was no explanation for claimant's symptoms "suddenly [taking] a turn for the worse" except that her disability benefits were denied); Bicknell v. Astrue, 343 Fed. Appx. 275, 277 (9th Cir. 2009) (holding that ALJ properly discredited claimant's testimony based on "`dramatic shift' in the reporting of [claimant's] back-pain-related symptoms between being cleared for work by [his doctor] on September 26, 2001 and his first interview with [different doctor] on October 1, 2001.").
The ALJ also relied on the fact that, at the same time that Plaintiff was reporting to her psychiatrist that she was experiencing severe psychiatric symptoms, she was not telling her treating doctor about them. (AR 22.) This fact also is supported by substantial evidence in the record. (AR 276-78 (treating physician noted that Plaintiff was depressed in visits in June and August 2006 and April 2007, but did not note any marked change in symptoms during that time, did not note any complaints of paranoia or hallucinations, and did not note any significant mental impairments in visits in August 2007 and January 2008).) It, too, is a valid reason to question a claimant's veracity. See Wallace v. Astrue, 276 Fed. Appx. 628, 628-29 (9th Cir. 2008) (upholding adverse credibility finding where claimant provided "inconsistent information to the doctors concerning her condition and her past history of drug and alcohol use, as well as her history of psychiatric treatment"); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (concluding inconsistencies in claimant's statements support discrediting the testimony of claimant).
The ALJ noted, and the Court agrees, "[i]f the claimant was truly experiencing the level of symptoms she claims including paranoia and hallucinations, [one] would expect her primary medical source, who previously treated her for depression, [to] note at least some abnormalities or concerns with her presentation and mental status." (AR 22.)
Because the ALJ's reasons for discounting Plaintiff's testimony were supported by the record and were legitimate under the law, the credibility finding will not be overturned.
3. The Treating Psychiatrist's Opinion
Treating psychiatrist Edgar Drew from Arcadia Mental Health Center determined that Plaintiff was severely impaired. The ALJ discounted this opinion. Plaintiff complains that the ALJ failed to provide clear and convincing reasons for doing so. For the following reasons, this claim, too, is rejected.
It is well-established that, "[b]y rule, the Social Security Administration favors the opinion of a treating physician over non-treating physicians." Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Where the treating physician's opinion is contradicted by a non-treating physician's opinion, the ALJ must provide specific and legitimate reasons, supported by substantial evidence in the record, for rejecting it. Id. at 632 (citing Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). Though, in general, a treating doctor's opinion is entitled to deference, see, e.g., id. at 631, a treating doctor's opinion regarding the ultimate issue of disability is not entitled to any special weight. See Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (reaffirming that treating physician's opinion is "not binding on an ALJ with respect to the . . . ultimate determination of disability"); 20 C.F.R. § 404.1527(e)(3); see also Social Security Ruling 96-5p (stating that opinion that claimant is disabled, "even when offered by a treating source, . . . can never be entitled to controlling weight or given special significance").
Plaintiff told her treating psychiatrist that she was suffering from delusions and hallucinations. Based on these claims, the treating psychiatrist determined that Plaintiff was severely impaired. But Plaintiff was not credible and, therefore, an opinion based on her reports of what she was experiencing was worthless. As such, the ALJ properly discounted it. See Tonapetyan, 242 F.3d at 1149 (holding that, when the record supports the ALJ's discounting of the claimant's credibility, the ALJ is free to disregard a doctor's opinion premised on the claimant's subjective complaints); Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989) (concluding ALJ properly disregarded treating physician's opinion "because it was premised on [claimant's] own subjective complaints, which the ALJ had already properly discounted"). For this reason, the Court concludes that there is no merit to this claim.
IV. CONCLUSION
For these reasons, the Agency's decision is reversed and the case is remanded for further proceedings consistent with this memorandum opinion and order.
IT IS SO ORDERED.