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finding that "although a relationship with the plaintiff can be one possible ground to question credibility, something more is required to show that a lay witness' testimony is so tainted by bias that it must be rejected"
Summary of this case from Marconi v. ColvinOpinion
No. EDCV 09-01082-SS.
April 13, 2010
MEMORANDUM DECISION AND ORDER
Plaintiff Jerina Traister ("Plaintiff") brings this action seeking to overturn the decision of the Commissioner of the Social Security Administration (hereinafter the "Commissioner" or the "Agency") denying her application for Supplemental Security Income ("SSI") benefits. Alternatively, she asks for a remand. The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. The parties filed a Joint Stipulation ("JS"), pursuant to this Court's Case Management Order, in support of their respective positions. For the reasons stated below, the decision of the Commissioner is REVERSED and REMANDED for further administrative proceedings.
THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS
To qualify for disability benefits, a claimant must demonstrate a medically determinable physical or mental impairment that prevents him from engaging in substantial gainful activity and that is expected to result in death or to last for a continuous period of at least twelve months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work he previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are:
(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.
(2) Is the claimant's impairment severe? If not, the claimant is found not disabled. If so, proceed to step three.
(3) Does the claimant's impairment meet or equal one of list of specific impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is found disabled. If not, proceed to step four.
(4) Is the claimant capable of performing his past work? If so, the claimant is found not disabled. If not, proceed to step five.
(5) Is the claimant able to do any other work? If not, the claimant is found disabled. If so, the claimant is found not disabled.Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098-99); 20 C.F.R. §§ 404.1520(b) — 404.1520(g)(1) 416.920(b) — 416.920(g)(1).
The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five.Bustamante, 262 F.3d at 953-54 (citing Tackett, 180 F.3d at 1098). Additionally, the ALJ has an affirmative duty to assist the claimant in developing the record at every step of the inquiry. Id. at 954. If, at step four, the claimant meets his burden of establishing an inability to perform past work, the Commissioner must show that the claimant can perform some other work that exists in "significant numbers" in the national economy, aking into account the claimant's residual functional capacity ("RFC"), age, education, and work experience. Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). The Commissioner may do so by the testimony of a vocational expert or by reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 (commonly known as "the Grids").Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001) (citingTackett, 180 F.3d at 1100-01). When a claimant has both exertional (strength-related) and nonexertional limitations, the Grids are inapplicable and the ALJ must take the testimony of a vocational expert. Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)).
Residual functional capacity is "what [one] can still do despite [his] limitations" and represents an "assessment based upon all of the relevant evidence." 20 C.F.R. §§ 404.1545(a), 416.945(a).
THE ALJ'S DECISION
The Administrative Law Judge ("ALJ") applied the five-step sequential evaluation process. At the first step of the evaluation process, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her alleged onset date. (Administrative Record ("AR") 10). At step two, the ALJ found that Plaintiff's degenerative changes in the musculoskeletal system were severe, but that her alleged high blood pressure, heart palpations, migraine headaches and mental disorder were either not medically determinable or not severe. (AR 11-13). At step three, the ALJ found that the impairment did not meet or equal any of the Listings. (AR 13). Concluding that Plaintiff's subjective symptoms were not credible, the ALJ found that Plaintiff was mentally and physically capable of performing medium work. (AR 15-16). At step four, the ALJ determined that Plaintiff was able to perform past relevant work. (AR 16). As such, the ALJ found that Plaintiff was not disabled within the meaning of the Social Security Act. (Id.).
STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The court may set aside the Commissioner's decision when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989))."Substantial evidence is more than a scintilla, but less than a preponderance." Reddick, 157 F.3d at 720 (citing Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). It is "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Id. (citing Jamerson, 112 F.3d at 1066;Smolen, 80 F.3d at 1279). To determine whether substantial evidence supports a finding, the court must "`consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland, 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing that conclusion, the court may not substitute its judgment for that of the Commissioner. Reddick, 157 F.3d at 720-21 (citing Flaten v. Sec'y, 44 F.3d 1453, 1457 (9th Cir. 1995)).
DISCUSSION
Plaintiff contends that: (1) the ALJ erred by failing to provide specific and legitimate reasons for rejecting the treating psychiatrist's opinion; (2) the ALJ erred by failing to provide germane reasons for rejecting lay witness testimony; and (3) the ALJ improperly assessed Plaintiff's ability to perform her past relevant work as a manager of a retail store. (Joint Stipulation ("JS") at 3). This Court agrees and remands this action on these grounds. As the Court determines that remand is required on these grounds alone, the Court need not address Plaintiff's alternative arguments.
A. The ALJ Failed To Provide Specific And Legitimate Reasons For Rejecting The Treating Physician's Opinion
Plaintiff contends that the ALJ failed to properly consider the opinion of Dr. Lyle Forehand, Jr. (JS at 3-4, 7-8). Specifically, Plaintiff argues that "[t]he ALJ erred in disregarding Dr. [Forehand's] opinion without providing specific and legitimate reasons, supported by substantial evidence." (Id. at 4).
Plaintiff refers to Dr. Forehand as both Dr. Forehand and Dr. Lyle in the Joint Stipulation.
The opinions of treating physicians are entitled to special weight because the treating physician is hired to cure and has a better opportunity to know and observe the claimant as an individual. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). Where a treating physician's opinion is not contradicted by another doctor, it may be rejected only for "clear and convincing" reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Even if the treating physician's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing specific and legitimate reasons, supported by substantial evidence in the record. Id.
Here, Plaintiff sought treatment at Bear Valley Family Counseling ("Bear Valley") from 2003-2005. (AR 227-97). Dr. Forehand, Plaintiff's treating psychiatrist at Bear Valley, diagnosed Plaintiff with, inter alia, depression, obsessive compulsive disorder and borderline personality disorder. (AR 244). As part of Plaintiff's treatment plan, Dr. Forehand prescribed medication, including Paxil and Lamictal. (See, e.g., AR 247). During this period, Plaintiff had routine visits with Dr. Forehand, as well as attended group therapy sessions at Bear Valley. (AR 227-97).
The ALJ impliedly rejected Dr. Forehand's diagnosis by relying, in whole, on the opinion of Dr. Linda Smith, the psychiatric consultative examiner. (AR 12). Although Dr. Smith's opinion contradicted Dr. Forehand's diagnosis, the ALJ failed to provide any reason for rejecting Dr. Forehand's opinion. (AR 244, 424-34). Indeed, the ALJ failed to even mention that Plaintiff sought treatment from Dr. Forehand and Bear Valley anywhere in the decision, much less provide specific and legitimate reasons to reject Dr. Forehand's opinion. (AR 8-16). Accordingly, the ALJ erred. Lingenfelter v. Astrue, 504 F.3d 1028, 1037-38 n. 10 (9th Cir. 2007) (stating that it was legal error for the ALJ to completely ignore the opinions of the treating physicians).
Remand for further proceedings is appropriate where additional proceedings could remedy defects in the Commissioner's decision.See Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000); Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). Because the ALJ failed to provide specific and legitimate reasons for rejecting the treating physician's opinion or, instead, to fully credit the opinion, the case must be remanded to remedy this defect. Upon remand, the ALJ must either provide specific and legitimate reasons to reject Dr. Forehand's opinion or incorporate the limitations provided by Dr. Forehand into the RFC determination.
B. The ALJ Failed To Provide Germane Reasons For Rejecting The Lay Witness' Testimony
Plaintiff contends that the ALJ failed to provide germane reasons for rejecting the testimony of a lay person. (JS 13). Plaintiff further contends that the ALJ's allegation of the lay witness' "financial motivation [was] unfounded." (Id.). Steve Beckman, Plaintiff's boyfriend, submitted a Third Party Function Report in support of Plaintiff's application. (AR 125-32, 152-59). Mr. Beckman reported that he had known Plaintiff for five to six years and lived with her. (AR 125, 152). Mr. Beckman reported that Plaintiff experienced pain and numbness. (AR 125-30, 152-57). Mr. Beckman explained that Plaintiff's ability to perform activities such as cooking and cleaning depended on her pain level. (Id.).
Mr. Beckman submitted two nearly identical Third Party Function Reports.
In determining whether a claimant is disabled, an ALJ must consider lay witness testimony concerning a claimant's ability to work. Stout v. Comm'r, 454 F.3d 1050, 1053 (9th Cir. 2006); Smolen, 80 F.3d at 1288; 20 C.F.R. §§ 404.1513(d)(4) (e), and 416.913(d)(4) (e). Lay witness testimony as to a claimant's symptoms cannot be disregarded without comment. Stout, 454 F.3d at 1053; see also Robbins v. Social Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006). The ALJ may discount the testimony of lay witnesses only if he gives "reasons that are germane to each witness." Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 2001) ("[L]ay testimony as to a claimant's symptoms is competent evidence that an ALJ must take into account, unless he or she expressly determines to disregard such testimony and gives reasons germane to each witness for doing so." (citations omitted)).
The ALJ summarily rejected Mr. Beckman's testimony. He found that Mr. Beckman's opinion "establishe[d] no different conclusions" from the medical evidence and that Mr. Beckman had both the emotional and financial motivation to help Plaintiff obtain disability benefits in order "to relieve himself of total support of [Plaintiff] and transfer it to the public." (AR 12-13, 15). This Court notes that the ALJ cannot dismiss the testimony of Mr. Beckman, who is in a position analogous to a family member, on the basis of bias simply by virtue of his relationship with Plaintiff. Smolen, 80 F.3d at 1289 (finding that the ALJ erred when he rejected the testimonies of family members on bias grounds). Such rejection is equivalent to a wholesale dismissal of any family member or domestic partner as a credible witness.Id. To the contrary, witnesses who observe a claimant's symptoms on a daily basis are particularly valuable. Id. (citing Dodrill, 12 F.3d at 918-19). Although a relationship with the plaintiff can be one possible ground to question credibility, something more is required to show that a lay witness's testimony is so tainted by bias that it must be rejected. As such, the ALJ erred by failing to provide sufficient reasons to reject lay witness testimony. Upon remand, if the ALJ wishes to reject Mr. Beckman's testimony, he must provide germane reasons supported by the evidence in the record.
C. Substantial Evidence Does Not Support The ALJ's Determination That Plaintiff Could Perform Her Past Relevant Work
After reviewing the medical evidence and Plaintiff's testimony, the ALJ concluded that Plaintiff was capable of performing medium work activity. (AR 16). The ALJ found that Plaintiff was therefore capable of returning to her past relevant work as a retail store manager. This was error.
At step four of the sequential evaluation, claimants have the burden of showing that they can no longer perform their past relevant work. 20 C.F.R. § 404.1520(f). Although the burden of proof lies with the claimant at step four, the ALJ "still has a duty to make the requisite factual findings to support his decision." Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001) (citing Social Security Ruling ("SSR") 82-62). The ALJ must look at the "residual functional capacity and the physical and mental demands" of the claimant's past. 20 C.F.R. § 404.1520(f); SSR 82-62. The claimant must be able to perform the job as he actually performed it, or as it is generally performed in the national economy. SSR 82-61; Pinto, 249 F.3d at 845.
The ALJ premised his RFC finding on his improper assessment of Plaintiff's impairments, both physical and mental. As discussedsupra, the ALJ's assessment was based on the improper rejection of Dr. Forehand's opinion. The ALJ failed to set forth specific and legitimate reasons for disregarding the opinion. As this Court has concluded that the ALJ's rejection of Dr. Forehand's opinion was improper, the ALJ's finding at step four is also improper and not supported by substantial evidence. Cf. Aukland, 257 F.3d at 1037 (finding that the ALJ's reliance on the Grids was improper when the ALJ improperly rejected the treating physician's opinion).
As the assessment of Plaintiff's impairments was improper, it was error to conclude she could return to her past relevant work as a retail store manager. Upon remand, the ALJ must reconsider the analysis at steps four and five of the evaluation. In addition, the Court finds that the services of a vocational expert are required unless the ALJ concludes that, based upon substantial evidence in the record, Plaintiff can return to her past relevant work.
CONCLUSION
Accordingly, IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED and REMANDED for further proceedings consistent with this decision.