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holding that, given medical evidence of moderate limitations in concentration, persistence, and pace, "the ALJ's RFC determination should have included not only the limitation to unskilled work, but also a moderate limitation in maintaining concentration, persistence, and pace"
Summary of this case from Brown v. ColvinOpinion
Case No. CV 13-2506 RNB
03-20-2014
JAMI JUAREZ, Plaintiff, v. CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.
ORDER REVERSING DECISION OF
COMMISSIONER AND REMANDING
FOR FURTHER ADMINISTRATIVE
PROCEEDINGS
Plaintiff filed a Complaint herein on April 9, 2013, seeking review of the Commissioner's denial of her applications for Disability Insurance Benefits and Supplemental Security Income. In accordance with the Court's Case Management Order, the parties filed a Joint Stipulation on March 3, 2014. Thus, this matter now is ready for decision.
As the Court advised the parties in its Case Management Order, the decision in this case is being made on the basis of the pleadings, the administrative record ("AR"), and the Joint Stipulation ("Jt Stip") filed by the parties. In accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g).
DISPUTED ISSUES
As reflected in the Joint Stipulation, the disputed issues that plaintiff is raising as the grounds for reversal and remand are as follows:
1. Whether the Administrative Law Judge ("ALJ") made a proper step two finding, properly determined plaintiff's residual functional capacity ("RFC"), and posed complete hypothetical questions to the vocational expert.
2. Whether the ALJ properly considered the opinion of plaintiff's treating physician.
3. Whether the ALJ made a proper adverse credibility determination with respect to the lay witness statement.
4. Whether the ALJ made a proper adverse credibility determination with respect to plaintiff's subjective symptom testimony.
DISCUSSION
For the reasons discussed hereafter, the Court concurs with the Commissioner that reversal is not warranted based on the ALJ's alleged failure to make a proper adverse credibility determination with respect to plaintiff's subjective symptom testimony, or based on the ALJ's alleged failure to properly consider the treating physician's opinion, or based on the ALJ's alleged failure to make a proper step two finding. However, the Court is unable to affirm the ALJ's RFC determination because the Court concurs with plaintiff that the ALJ failed to properly consider evidence of plaintiff's physical limitations, failed to properly consider evidence of plaintiff's mental limitations, and failed to make a proper adverse credibility determination with respect to the lay witness statement of plaintiff's daughter. Moreover, it follows from the Court's inability to affirm the ALJ's RFC determination that the Court also is unable to affirm the ALJ's vocational determination. A. Reversal is not warranted based on the ALJ's alleged failure to make a proper adverse credibility determination with respect to plaintiff's subjective symptom testimony.
Disputed Issue 4 is directed to the ALJ's adverse credibility determination with respect to plaintiff's subjective symptom testimony. (See Jt Stip at 48-56.)
An ALJ's assessment of pain severity and claimant credibility is entitled to "great weight." Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). Under the "Cotton test," where as here the claimant has produced objective medical evidence of an impairment which could reasonably be expected to produce some degree of pain and/or other symptoms, and the record is devoid of any affirmative evidence of malingering, the ALJ may reject the claimant's testimony regarding the severity of the claimant's pain and/or other symptoms only if the ALJ makes specific findings stating clear and convincing reasons for doing so. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see also Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc).
Here, plaintiff testified that she could not work because of an inability to sit for long periods of time without pain in her shoulders, back, knees, and hips; an inability to concentrate; and an inability to drive, walk for long distances, or use her hands very well. (See AR 50-51.) The ALJ found that, although plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, plaintiff's statements concerning the intensity, persistence, and limiting effects of these symptoms were not credible to the extent they were inconsistent with the ALJ's RFC determination. (See AR 28.)
The ALJ's RFC determination was for "light work as defined by 20 C.F.R. 404.1567(b) and 416.967(b) except: occasionally stoop, overhead reach; no concentrated exposure to extreme heat/cold; no concentrated exposure to dust, fumes, respiratory irritants; and only unskilled work." (See AR 27.)
In support of this adverse credibility determination, the ALJ proffered three reasons. The Court finds that, although one of the stated reasons was legally insufficient, the error was harmless because the other two reasons were legally sufficient.
One of the reasons cited by the ALJ was that plaintiff's daily activities "are not limited to the extent one would expect, given the complaints of disabling symptoms and limitations." (See AR 28.) Specifically, the ALJ noted plaintiff's ability to attend her doctor's appointments on her own, as well as plaintiff's ability to drive, go shopping, go to church, and visit with family. (See AR 28; see also AR 177, 178.) The Court finds that this was not a legally sufficient reason on which the ALJ could properly rely in support of her adverse credibility determination because the first cited activity, plaintiff's attendance of doctor's appointments on her own, is not supported by the record. Rather, the record of plaintiff's doctor's appointments is silent about whether plaintiff attended on her own or arrived with the assistance of other people. Moreover, the record reflects that plaintiff sometimes received rides when she had to go places. (See AR 177, 197.)
Another reason cited by the ALJ was that plaintiff had "credibility issues, in that the record reflects that [plaintiff] has told a treating physician that she has never used drugs, when the record and [plaintiff]'s own testimony demonstrate a history of methamphetamine abuse." (See AR 28; see also AR 367.) The Court finds that this was a legally sufficient reason on which the ALJ could properly rely in support of her adverse credibility determination. See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (claimant's presentation of conflicting information about her drug and alcohol usage was a clear and convincing reason to discount her testimony); see also Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (relying on inconsistent statements about alcohol use to reject claimant's testimony). Plaintiff disputes the legal sufficiency of this reason by pointing out that she proffered an explanation, after the ALJ issued her decision, that plaintiff had misunderstood her treating physician's inquiry about drug usage to cover only her experience with pain killing drugs, not illicit drugs such as methamphetamine. (See Jt Stip at 50; see also AR 8.) The Court is unpersuaded by plaintiff's after-the-fact explanation because the record clearly reflects that the treating physician reported plaintiff's denial of using "any" drugs, not just pain killing drugs. (See AR 367.) Moreover, even if plaintiff's explanation did constitute a rational interpretation of her response to her treating physician's query, the fact remains that the ALJ's different interpretation of the evidence also was rational. It is not the Court's role to second-guess an ALJ's rational interpretation of the evidence merely because plaintiff is able to proffer an alternative rational interpretation. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) ("Where evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.").
Another reason cited by the ALJ was that plaintiff's treatment notes "reflect routine care and rarely are complaints of back or hip pain or depression mentioned." (See AR 28; see also AR 351-73.) With respect to plaintiff's hip pain in particular, the ALJ further noted that plaintiff was to undergo hip replacement surgery, "but with a reasonable recovery time, the record does not establish that she would be unable to resume light work." (See AR 28.) The Court finds that this constituted a legally sufficient reason on which the ALJ could properly rely in support of her adverse credibility determination. See Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (evidence of conservative treatment is sufficient to discount a claimant's testimony regarding severity of an impairment); Odle v. Heckler, 707 F.2d 439, 440 (9th Cir. 1983) (ALJ may consider whether treatment produces fair response or control of pain that is satisfactory).
In sum, the Court finds that even if the ALJ did err in relying on one of her three stated reasons in support of her adverse credibility determination, the error was harmless because the ALJ's other two reasons and ultimate adverse credibility determination were supported by substantial evidence. See Carmickle v. Comm'r Social Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008) (holding that ALJ's reliance on two invalid reasons in support of adverse credibility determination was harmless where remaining reasons were adequately supported by substantial evidence). B. Reversal is not warranted based on the ALJ's alleged failure to properly consider the opinion of plaintiff's treating physician.
Disputed Issue 2 is directed to the ALJ's rejection of the opinion of Dr. Gjerdrum, plaintiff's treating physician. (See Jt Stip at 37-43.)
The law is well established in this Circuit that a treating physician's opinions are entitled to special weight because a treating physician is employed to cure and has a greater opportunity to know and observe the patient as an individual. See McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). "The treating physician's opinion is not, however, necessarily conclusive as to either a physical condition or the ultimate issue of disability." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The weight given a treating physician's opinion depends on whether it is supported by sufficient medical data and is consistent with other evidence in the record. See 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). If the treating physician's opinion is uncontroverted by another doctor, it may be rejected only for "clear and convincing" reasons. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996); Baxter v. Sullivan, 923 F.3d 1391, 1396 (9th Cir. 1991). Where, as here, the treating physician's opinion is controverted, it may be rejected only if the ALJ makes findings setting forth specific and legitimate reasons that are based on the substantial evidence of record. See, e.g., Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) ("A treating physician's opinion on disability, even if controverted, can be rejected only with specific and legitimate reasons supported by substantial evidence in the record."); Magallanes, 881 F.2d at 751; Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987).
Here, Dr. Gjerdrum completed a questionnaire on August 8, 2011 entitled "Medical Source Statement (Physical)" about plaintiff's current limitations. (See AR 398-99.) Dr. Gjerdrum's responses reflected that, on account of plaintiff's osteoarthritis, plaintiff would be limited inter alia to less than 10 pounds of lifting, less than 2 hours of standing or walking in an 8-hour workday, and less than 6 hours of sitting continuously in an 8-hour workday. (See AR 398.) Dr. Gjerdrum also stated that these limitations had existed for "several years." (See id.)
The ALJ accorded "little weight" to Dr. Gjerdrum's opinion for two similar reasons. (See AR 28.) First, the ALJ found that Dr. Gjerdrum's statement that plaintiff's limitations had existed for "several years" was inconsistent with Dr. Gjerdrum's noting elsewhere that he "only recently saw [plaintiff] in July 2011 to evaluate hip pain which was reported as increasing over the prior six months." (See AR 28; see also AR 398, 405.) The Court finds that this was a legally sufficient reason on which the ALJ could properly rely to accord little weight to Dr. Gjerdrum's opinion. See Morgan v. Comm'r of Social Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999) (ALJ properly rejected treating medical opinion that had internal inconsistencies). Although plaintiff disputes the legal sufficiency of this reason by arguing that she has a long history of hip pain (see Jt Stip at 38-40), the evidence proffered by plaintiff in fact corroborates the ALJ's finding that her hip pain became substantially worse in the six months prior to Dr. Gjerdrum's opinion (see AR 405).
Second, the ALJ similarly found that Dr. Gjerdrum's opinion was inconsistent with Dr. Gjerdrum's treatment notes, which reflected that "[plaintiff] had only a slight limp and she was not using a cane." (See AR 28; see also AR 405.) The Court finds that this also was a legally sufficient reason on which the ALJ could properly rely to accord little weight to Dr. Gjerdrum's opinion. See Valentine v. Comm'r of Social Sec. Admin., 574 F.3d 685, 692-93 (9th Cir. 2009) (contradiction between a treating physician's opinion and his treatment notes constitutes a specific and legitimate reason for rejecting the treating physician's opinion); Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (contradiction between treating physician's assessment and clinical notes justifies rejection of assessment); Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995) (contradiction between treatment notes and finding of disability was valid reason to reject treating physician's opinion); 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4) (ALJ may consider consistency between treating medical opinion and record as a whole). C. Reversal is not warranted based on the ALJ's alleged failure to make a proper step two finding.
Part of Disputed Issue 1 is directed to the ALJ's step two finding. (See Jt Stip at 5, 9-10, 22-24.)
Step two of the Commissioner's sequential evaluation process requires the ALJ to determine whether an impairment is severe or not severe. See 20 C.F.R. §§ 404.1520(a), 416.920(a). The Social Security Regulations and Rulings, as well as case law applying them, discuss the step two severity determination in terms of what is "not severe." According to the Commissioner's regulations, an impairment is not severe if it does not significantly limit the claimant's physical or mental ability to do basic work activities." See 20 C.F.R. §§ 404.1520(c), 404.1521(a), 416.920(c), 416.921(a). Basic work activities are "abilities and aptitudes necessary to do most jobs," including "[p]hysical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling." Basic work activities also include mental activities such as understanding, carrying out, and remembering simple instructions; use of judgment; responding appropriately to supervision, co-workers, and usual work situations; and dealing with changes in a routine work setting. See 20 C.F.R. §§ 404.1521(b), 416.921(b); Social Security Ruling ("SSR") 85-28. The Ninth Circuit has described step two as "a de minimis screening device to dispose of groundless claims." See Smolen, 80 F.3d at 1290; see also Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005).
Here, the ALJ found at step two of the Commissioner's sequential evaluation process that plaintiff had the following severe impairments: "left hip protrusion and pincer-type hip with degenerative changes pending hip replacement; major depression, recurrent, moderate; amphetamine dependence, in remission." (See AR 24.) Plaintiff contends that the ALJ erred by failing to include in her step two finding the impairments of fibromyalgia, asthma, and arthritis. (See Jt Stip at 9-10.)
However, the Court notes that the record includes no evidence of a diagnosis of fibromyalgia or asthma; indeed, plaintiff conceded at the administrative hearing that she had not been diagnosed with fibromyalgia because she had been unable to see a rheumatologist. (See AR 51.) In the absence of such diagnoses, the ALJ did not err in excluding fibromyalgia and asthma from her step two finding. See Ukolov v. Barnhart, 420 F.3d 1002, 1006 (9th Cir. 2005) (ALJ committed no legal error in finding lack of impairment at step two where none of the medical opinions included a finding of impairment, a diagnosis, or objective test results).
The record does include evidence that plaintiff was diagnosed with osteoarthritis. (See AR 398.) But assuming arguendo that the ALJ erred in failing to list arthritis in her step two finding, the only limitations associated with that diagnosis were the limitations posited by Dr. Gjerdrum, to which the ALJ accorded little weight for legally sufficient reasons, as discussed above. Moreover, plaintiff has not specified or proffered evidence of any additional limitations from the arthritis that the ALJ failed to consider. See Valentine, 574 F.3d at 692 n.2 ("We reject any invitation to find that the ALJ failed to account for Valentine's injuries in some unspecified way."). Accordingly, the Court finds that any error by the ALJ in failing to list arthritis in her step two finding was harmless. D. The ALJ failed to properly consider evidence of plaintiff's physical limitations for purposes of her RFC determination.
Another part of Disputed Issue 1 is directed to the portion of the ALJ's RFC determination setting out plaintiff's physical limitations. (See Jt Stip at 6-13, 24-30.) As noted above, the ALJ's RFC determination reflected a limitation to "light work as defined by 20 C.F.R. 404.1567(b) and 416.967(b) except: occasionally stoop, overhead reach; no concentrated exposure to extreme heat/cold; [and] no concentrated exposure to dust, fumes, respiratory irritants." (See AR 27.)
It appears that plaintiff is challenging the physical limitations contained in the ALJ's RFC determination in two separate respects. First, plaintiff contends that the ALJ improperly credited the opinion of a state agency review physician, Dr. Frye, over the opinions of the treating physician, Dr. Gjerdrum, and the examining physician, Dr. Siekerkotte. (See Jt Stip at 6-8, 9.) Second, plaintiff contends that the ALJ's RFC determination should have accounted for plaintiff's need for a cane or back brace, her limitations in fine and gross manipulation, and her limitations due to visual deficits and obesity. (See Jt Stip at 12-13.) As discussed below, the Court concurs with plaintiff only with respect to Dr. Siekerkotte.
First, the Court disagrees with plaintiff's contention that the ALJ's RFC determination should have accounted for plaintiff's need for a cane or back brace, her limitations in fine and gross manipulation, and her limitations due to visual deficits and obesity. To the extent that any of these limitations were recommended by Dr. Gjerdrum, such as the use of a cane and limitations in fine and gross manipulation (see AR 399, 405), it follows from the Court's finding that the ALJ provided legally sufficient reasons to accord little weight to Dr. Gjerdrum's opinion that the ALJ did not err in failing to include these limitations in the RFC determination. Moreover, there was no evidence that plaintiff needed a back brace, only evidence that plaintiff purchased a back brace at a store. (See AR 376.) Similarly, plaintiff has proffered no evidence of limitations owing to visual deficits that the ALJ was required to consider for purposes of her RFC determination. Finally, with respect to plaintiff's alleged obesity, the ALJ did not err in failing to properly consider this condition because the most recent medical records established that plaintiff was not obese based on her measurements (6 feet tall and 195 pounds). (See AR 405.)
Under the Commissioner's regulations, a person with a body mass index ("BMI") of 30 or above is considered obese. See SSR 02-1p, at *2 ("For adults, both men and women, the Clinical Guidelines describe a BMI of . . . 30.0 or above as 'obesity.'"). Based on her height and weight, plaintiff's BMI was only 26.4. See http://www.cdc.gov/healthyweight/assessing/bmi/adult_bmi/english_bmi_calculat or/bmi_calculator.html.
However, the Court does find that the ALJ failed to properly consider the physical limitations reflected in the opinion of the examining physician, Dr. Siekerkotte. Upon examining plaintiff, Dr. Siekerkotte completed a functional assessment in which she stated that plaintiff should be limited to standing for 2-4 hours in an 8-hour workday; sitting for 6 hours in an 8-hour workday; and lifting and carrying 10 pounds frequently and 20 pounds occasionally; and that plaintiff should also have various postural and manipulative limitations. (See AR 377-78.) The Commissioner argues that the ALJ properly gave "little weight" to Dr. Siekerkotte's opinion because Dr. Siekerkotte appeared to have relied quite heavily on the subjective report of symptoms and limitations provided by plaintiff, and seemed to uncritically accept as true most, if not all, of what plaintiff reported; and because contemporaneous treatment notes showed that plaintiff was generally doing well. (See Jt Stip at 26-27; see also AR 29.) The Court finds that neither reason was legally sufficient. Although there is authority for the proposition that a physician's opinion premised to a large extent upon the claimant's own account of her symptoms and limitations may be disregarded where those complaints have been properly discounted, see Morgan, 169 F.3d at 602, that authority is inapplicable here. The record reflects that Dr. Siekerkotte's opinion was not premised to a large extent upon plaintiff's own account of her symptoms, but upon Dr. Siekerkotte's own objective findings, which included a review of plaintiff's medical records, an interview, and her own physical examination. (See AR 374-78.) Dr. Siekerkotte also specifically explained the objective clinical basis for the functional limitations she posited. (See AR 377-78.) Accordingly, this was not a legally sufficient reason to accord little weight to Dr. Siekerkotte's opinion for purposes of the ALJ's RFC determination. See Regennitter v. Commissioner of Social Sec. Admin., 166 F.3d 1294, 1300 (9th Cir. 1999) (examining physician did not simply take claimant's statements "at face value" where he interviewed the claimant twice, confirmed his complaints, conducted extensive objective testing, and explained in detail how the results of each test supported his diagnoses). Moreover, the ALJ's rationale that contemporaneous treatment notes showed that plaintiff was generally doing well, without more, is not sufficiently specific to constitute a legally sufficient reason to accord little weight to Dr. Siekerkotte's opinion for purposes of the ALJ's RFC determination. See Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988) ("To say that medical opinions are not supported by sufficient objective findings or are contrary to the preponderant conclusions mandated by the objective findings does not achieve the level of specificity our prior cases have required."); Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (same); see also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) ("The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct.") (citing Embrey, 849 F.2d at 421-22); Regenitter, 166 F.3d at 1299 ("[C]onclusory reasons will not justify an ALJ's rejection of a medical opinion."). E. The ALJ failed to properly consider evidence of plaintiff's mental limitations for purposes of her RFC determination.
Another part of Disputed Issue 1 is directed to the portion of the ALJ's RFC determination setting out plaintiff's mental limitations. (See Jt Stip at 8-9, 13-21, 30-34.) As noted above, the ALJ's RFC determination included a limitation to unskilled work. (See AR 27.)
It appears that plaintiff is challenging the ALJ's limitation of plaintiff to unskilled work in two respects. First, plaintiff contends that the ALJ improperly credited the opinion of a state agency review physician, Dr. Biala, over the opinion of Dr. Izzi, an examining psychologist. (See Jt Stip at 8-9.) Second, plaintiff contends that a limitation to unskilled work did not adequately capture the opinion of a state agency review physician and the ALJ's own finding that plaintiff had a moderate difficulty in maintaining concentration, persistence, and pace. (See Jt Stip at 14-15, 17; see also AR 26, 335-36.) As discussed below, the Court concurs with both of plaintiff's contentions.
First, the Court concurs with plaintiff that the ALJ failed to properly consider the opinion of the examining psychologist, Dr. Izzi. Upon examining plaintiff, Dr. Izzi completed a functional assessment in which he stated that plaintiff appeared "capable of performing a simple and repetitive type task on a consistent basis over an eight-hour period" with a moderate limitation in her "ability to get along with peers or be supervised." (See AR 382.) The Commissioner argues, as she did with respect to Dr. Siekerkotte, that the ALJ properly gave "little weight" to Dr. Izzi's opinion because Dr. Izzi appeared to have relied quite heavily on the subjective report of symptoms and limitations provided by plaintiff, and seemed to uncritically accept as true most, if not all, of what plaintiff reported; and because contemporaneous treatment notes showed that plaintiff was generally doing well. (See Jt Stip at 31; see also AR 29.) As discussed above, the second reason is not legally sufficient. The first reason also is not legally sufficient because the record reflects that Dr. Izzi's opinion was not premised to a large extent upon plaintiff's own account of her symptoms, but upon Dr. Izzi's own objective findings, which included a review of plaintiff's medical records, a mental status examination, and objective psychological testing that yielded valid results because plaintiff appeared to have put forth an adequate effort. (See AR 379-82.) The Court therefore finds that the ALJ failed to provide legally sufficient reasons to accord little weight to Dr. Izzi's opinion for purposes of her RFC determination.
Second, the Court concurs with plaintiff that the ALJ's limitation to unskilled work did not adequately capture her moderate limitation in maintaining concentration, persistence, and pace. The Commissioner's reliance on Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008) for the proposition that the ALJ's RFC determination adequately captured plaintiff's limitation in concentration, persistence, and pace is misplaced. (See Jt Stip at 33-34.) In Stubbs-Danielson, the Ninth Circuit held that "an ALJ's assessment of a claimant adequately captures restrictions related to concentration, persistence, and pace where the assessment is consistent with restrictions identified in the medical testimony." See id. at 1174. There, the only concrete restrictions identified in the medical testimony was a restriction to simple tasks, despite some evidence that the claimant had deficiencies in pace and other areas. See id. However, in Brink v. Comm'r of Soc. Sec. Admin., 343 Fed. Appx. 211, 212 (9th Cir. 2009), the Ninth Circuit noted that Stubbs-Danielson - wherein the medical testimony "did not establish any limitations in concentration, persistence, or pace" - would be inapposite to cases where the medical testimony did establish such limitations and where the ALJ accepted such testimony. Here, the ALJ expressly found, consistent with the opinion of a state agency review physician, that plaintiff had a moderate limitation in maintaining concentration, persistence, and pace. (See AR 26, 335-36.) Accordingly, under Brink, whose reasoning the Court finds persuasive, the ALJ's RFC determination should have included not only the limitation to unskilled work, but also a moderate limitation in maintaining concentration, persistence, and pace. See also Lubin v. Comm'r of Soc. Sec. Admin., 507 Fed. Appx. 709, 712 (9th Cir. 2013) ("Although the ALJ found that Lubin suffered moderate difficulties in maintaining concentration, persistence, or pace, the ALJ erred by not including this limitation in the residual functional capacity determination or in the hypothetical question to the vocational expert."); Gray v. Astrue, 2012 WL 4097762, at *9 (D. Idaho Sept. 17, 2012) (RFC determination and hypothetical question were incomplete where they failed to incorporate limitation in concentration, persistence, and pace that ALJ had accepted); Van Duong v. Astrue, 2012 WL 3648006, at *5 (E.D. Cal. Aug. 22, 2012) (same); Moza v. Astrue, 2012 WL 1869364, at *5 (D. Ariz. May 22, 2012) (same); Smith v. Astrue, 2011 WL 3962107, at *9 (C.D. Cal. Sept. 8, 2011) (same). F. The ALJ failed to make a proper adverse credibility determination with respect to the lay witness statement of plaintiff's daughter.
Disputed Issue 3 is directed to the ALJ's alleged failure to properly consider the testimony of plaintiff's daughter, Ashlee Ujano. (See Jt Stip at 44-48.)
The law is well-established in this Circuit that lay witness testimony as to how a claimant's symptoms affect the claimant's ability to work is competent evidence and cannot be disregarded without providing specific reasons germane to the testimony rejected. See, e.g., Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996); Smolen, 80 F.3d at 1288-89; Dodrill, 12 F.3d at 919.
Here, Ms. Ujano completed a Function Report by a Third Party describing plaintiff's activities and limitations. (See AR 174-81.) Ms. Ujano specified, in pertinent part, that plaintiff "can't lift stuff," "can't do a lot of physical stuff," and is affected in almost all areas of physical functioning by her illnesses, injuries, or conditions. (See AR 179.)
The ALJ accorded "little weight" to Ms. Ujano's statements for the reason that "the opinions and statements of the State agency medical consultants are more objective and less likely to be influenced by sympathy for [plaintiff] or other emotional factors." (See AR 29.) The Court finds that this proffered reason for discrediting Ms. Ujano's testimony was not legally sufficient under Ninth Circuit jurisprudence. See Regennitter, 166 F.3d at 1298 (bias was not a legitimate reason for discounting the corroborative testimony of the claimant's mother, who had testified inter alia that she was the claimant's sole source of support); Smolen, 80 F.3d at 1289 ("The fact that a lay witness is a family member cannot be a ground for rejecting his or her testimony."); see also Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009) ("A lay person . . . though not a vocational or medical expert, was not disqualified from rendering an opinion as to how [a claimant]'s condition affects his ability to perform basic work activities."); 20 C.F.R. §§ 404.1513(d)(4), 416.913(d)(4) (evidence provided by lay witnesses may be used to show "the severity of [a claimant]'s impairment(s) and how it affects [the claimant]'s ability to work"). Moreover, the ALJ did not proffer any concrete evidence of Ms. Ujano's lack of objectivity. See Valentine, 574 F.3d at 694 (evidence that a spouse exaggerated might suffice to reject her testimony, but the fact that she was an interested party "in the abstract" would not).
Moreover, the Commissioner's reliance on Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012), for the proposition that any failure by the ALJ to properly evaluate Ms. Ujano's statement amounted to harmless error, is misplaced. (See Jt Stip at 47.) In Molina, 674 F.3d at 1122, the Ninth Circuit held that an ALJ's failure to properly discuss lay witness testimony was harmless error when that testimony "described the same limitations as [claimant]'s own testimony, and the ALJ's reasons for rejecting [claimant]'s testimony apply with equal force to the lay testimony." Here, by way of contrast, Ms. Ujano - by stating that plaintiff "can't lift stuff," "can't do a lot of physical stuff," and is affected in almost all areas of physical functioning - described limitations that were not the same as those in plaintiff's testimony, but rather went beyond those described by plaintiff. Accordingly, the ALJ's adverse credibility determination with respect to plaintiff's subjective symptom testimony could not render harmless the ALJ's failure to provide legally sufficient reasons to accord little weight to Ms. Ujano's statement. G. The ALJ failed to make a proper vocational determination.
As part of Disputed Issue 1, plaintiff also contends that the ALJ failed to make a proper vocational determination. (See Jt Stip at 21-22, 34-35.) "The hypothetical question an ALJ poses to a vocational expert, which derives from the RFC, must set out all the limitations and restrictions of the particular claimant." See Valentine, 574 F.3d at 690 (citation and internal quotation marks omitted). Here, it follows from the Court's inability to affirm the ALJ's RFC determination with respect to plaintiff's physical and mental limitations that the Court also is unable to affirm the ALJ's vocational determination.
CONCLUSION AND ORDER
The law is well established that the decision whether to remand for further proceedings or simply to award benefits is within the discretion of the Court. See, e.g., Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). Remand is warranted where additional administrative proceedings could remedy defects in the decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984); Lewin, 654 F.2d at 635. Remand for the payment of benefits is appropriate where no useful purpose would be served by further administrative proceedings, Kornock v. Harris, 648 F.2d 525, 527 (9th Cir. 1980); where the record has been fully developed, Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where remand would unnecessarily delay the receipt of benefits, Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985).
Weighing in favor of a remand for further administrative proceedings here is the fact that this is not an instance where no useful purpose would be served by further administrative proceedings. Rather, additional administrative proceedings conceivably could remedy the defects in the ALJ's decision.
The Court is mindful of Ninth Circuit case authority holding that "the district court should credit evidence that was rejected during the administrative process and remand for an immediate award of benefits if (1) the ALJ failed to provide legally sufficient reasons for rejecting the evidence; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited." See Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); see also, e.g., Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.), cert. denied, 531 U.S. 1038 (2000); Smolen, 80 F.3d at 1292; Varney v. Secretary of Health & Human Servs., 859 F.2d 1396, 1399-1401 (9th Cir. 1988). Under the foregoing case authority, when this test is met, the Court will take the improperly discredited testimony as true and not remand solely to allow the ALJ another opportunity to make specific findings regarding that testimony. This rule applies not only to medical opinion evidence, but also to improperly discredited lay witness testimony. However, in Connett, 340 F.3d at 876, the panel held that the "crediting as true" doctrine was not mandatory in the Ninth Circuit. There, the Ninth Circuit remanded for reconsideration of the claimant's credibility where the record contained insufficient findings as to whether the claimant's testimony should be credited as true. See id.
In Harman, the Ninth Circuit noted that this three-part test "really constitutes a two part inquiry, wherein the third prong is a subcategory of the second." Harman, 211 F.3d at 1178 n.7.
Based on its review and consideration of the entire record, the Court has concluded on balance that a remand for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g) is warranted here. Accordingly, IT IS HEREBY ORDERED that Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedings.
It is not the Court's intent to limit the scope of the remand.
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ROBERT N. BLOCK
UNITED STATES MAGISTRATE JUDGE