Chavez v. Social Security Administration

Filing 26

ORDER: The final decision of the Commissioner of Social Security is remanded for further proceedings consistent with this opinion. The Clerk shall enter judgment accordingly and terminate this case. Signed by Judge David G Campbell on 3/21/2016. (REK)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 J Chavez, No. CV-14-02654-PHX-DGC Plaintiff, 10 11 v. 12 Social Security Administration, 13 ORDER Defendant. 14 15 Plaintiff Juan Francisco Chavez, in a pro se action, seeks review under 42 U.S.C. 16 § 405(g) of the final decision of the Commissioner of Social Security which denied him 17 disability insurance benefits and supplemental security income under sections 216(i), 18 223(d), and 1614(a)(3)(A) of the Social Security Act. The matter will be remanded for 19 further proceedings. 20 I. Background. 21 Plaintiff is a 37 year old male who previously worked in food service and as a 22 janitorial supervisor. A.R. 33. On August 17, 2011, Plaintiff applied for disability 23 insurance benefits and supplemental security income, alleging disability beginning 24 April 15, 2009. 25 representative and testified at a hearing before an ALJ. Id. at 44-104. A vocational 26 expert also testified. Id. On August 6, 2013, the ALJ issued a decision that Plaintiff was 27 not disabled within the meaning of the Social Security Act. Id. at 23. The Appeals 28 Id. at 23. On May 13, 2013, he appeared with a non-attorney 1 Council denied Plaintiff’s request for review of the hearing decision, making the ALJ’s 2 decision the Commissioner’s final decision. Id. at 1. 3 II. Legal Standard. 4 The district court reviews only those issues raised by the party challenging the 5 ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court 6 may set aside the Commissioner’s disability determination only if the determination is 7 not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 8 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a 9 preponderance, and relevant evidence that a reasonable person might accept as adequate 10 to support a conclusion considering the record as a whole. Id. In determining whether 11 substantial evidence supports a decision, the court must consider the record as a whole 12 and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. 13 As a general rule, “[w]here the evidence is susceptible to more than one rational 14 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 15 upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). 16 Harmless error principles apply in the Social Security Act context. Molina v. 17 Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless if there remains 18 substantial evidence supporting the ALJ’s decision and the error does not affect the 19 ultimate nondisability determination. Id. The claimant usually bears the burden of 20 showing that an error is harmful. Id. at 1111. 21 III. The ALJ’s Five-Step Evaluation Process. 22 To determine whether a claimant is disabled for purposes of the Social Security 23 Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears 24 the burden of proof on the first four steps, and the burden shifts to the Commissioner at 25 step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 26 At the first step, the ALJ determines whether the claimant is engaging in 27 substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not 28 disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant -2- 1 has 2 § 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step 3 three, the ALJ considers whether the claimant’s impairment or combination of 4 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 5 of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to 6 be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the 7 claimant’s residual functional capacity and determines whether the claimant is still 8 capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not 9 disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, 10 where he determines whether the claimant can perform any other work based on the 11 claimant’s residual functional capacity, age, education, and work experience. 12 § 404.1520(a)(4)(v). If the claimant cannot perform such work, he is disabled. Id. a “severe” medically determinable physical or mental impairment. 13 At step one, the ALJ found that Plaintiff met the insured status requirements of the 14 Social Security Act through December 31, 2014, and that he had not engaged in 15 substantial gainful activity at any time between the alleged onset date and the date of the 16 decision. A.R. 25. At step two, the ALJ found that Plaintiff had the following severe 17 impairments: episodic diverticulitis,1 status post colon resection, lumbosacral 18 spondylosis,2 obesity, and alcohol abuse. Id. at 26. At step three, the ALJ determined 19 that Plaintiff did not have an impairment or combination of impairments that met or 20 medically equaled an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. 21 Id. at 28. At step four, the ALJ found that Plaintiff had the residual functional capacity to 22 perform: 23 24 25 26 27 28 1 Diverticulitis is the inflammation of diverticula, which are “small, bulging pouches that can form in the lining of [a person’s] digestive system.” See The condition “can cause severe abdominal pain, fever, nausea and a marked change in [a person’s] bowel habits.” Id. 2 Lumbosacral spondylosis may be defined as a “degenerative conditions affecting the disks, vertebral bodies, and/or associated joints of the lumbar spine.” Kimberley Middleton & David E. Fish, Lumbar spondylosis: clinical presentation and treatment approaches, 2:2 Curr. Rev. Musculoskelet. Med. 94 (Jun. 2009). -3- [L]ight work as defined in 20 C.F.R. § 404.1567(b) except that he can never climb ladders, ropes, and scaffolds, but can occasionally climb ramps and stairs. He can frequently balance, stoop, and kneel, as well as occasionally crouch or crawl. He should not work around extremely hot environments or in very humid environments. Further, he should not work around unprotected heights or moving machinery. 1 2 3 4 5 Id. The ALJ further found Plaintiff unable to perform any past relevant work. Id. At 6 step five, the ALJ found that jobs existed in significant numbers in the national economy 7 that the claimant could perform, including housekeeping, cashier, and merchandise 8 marker work. Id. at 34. 9 IV. Analysis. 10 Plaintiff argues the ALJ’s disability determination was defective for five reasons: 11 the ALJ (1) exhibited bias; (2) discounted the medical opinions of Plaintiff’s medical 12 sources; (3) improperly rejected the vocational expert’s testimony; (4) improperly 13 discounted the testimony of Plaintiff’s family, friends, and former coworkers; and 14 (5) improperly concluded that Plaintiff had a history of alcohol abuse and drug-seeking 15 behavior. Docs. 23, 25. The Court will address each argument below. 16 A. Bias. 17 “ALJs and other similar quasi-judicial administrative officers are presumed to be 18 unbiased. This presumption can be rebutted by a showing of conflict of interest or some 19 other specific reason for disqualification.” Rollins v. Massanari, 261 F.3d 853, 857-58 20 (9th Cir. 2001) (quoting Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999)). “But 21 expressions of impatience, dissatisfaction, annoyance, and even anger, that are within the 22 bounds of what imperfect men and women sometimes display, do not establish bias.” 23 Valentine v. Comm’r, 574 F.3d 685, 690 (9th Cir. 2009) (brackets omitted). In order to 24 demonstrate bias, a claimant must “show that the ALJ’s behavior, in the context of the 25 whole case, was so extreme as to display clear inability to render fair judgment.” Bayliss 26 v. Barnhart, 427 F.3d 1211, 1214-15 (9th Cir. 2005). 27 Plaintiff contends that the ALJ’s questions during the May 13, 2013 hearing 28 demonstrate that she was biased against Plaintiff based on his marital and relationship -4- 1 status. Doc. 23 at 3. Specifically, he contends that the ALJ seemed “more concerned 2 with [Plaintiff’s] background and history than his medical conditions.” Id. The Court 3 has reviewed the transcript of the hearing (A.R. 44-104) and finds no evidence of bias. 4 The ALJ did ask Plaintiff a number of questions about his background, history, and living 5 situation. See A.R. 61-64. But questions of this type serve a legitimate function in a 6 disability hearing by helping the ALJ understand whether Plaintiff’s daily activities are 7 consistent with his claim of disability. The ALJ’s questions were not improper and do 8 not demonstrate bias. 9 B. Weighing of Medical Source Evidence. 10 Plaintiff argues that the ALJ improperly discounted the medical opinions of 11 Ahmad Qasimyar, M.D. In addition, he asks this Court to consider medical opinions and 12 records from Jugroop Brar, M.D., which he did not present to the ALJ. 13 1. Legal Standard. 14 The Commissioner is responsible for determining whether a claimant meets the 15 statutory definition of disability, and need not credit a physician’s conclusion that the 16 claimant is “disabled” or “unable to work.” 17 Commissioner generally must defer to a physician’s medical opinion, such as statements 18 concerning the nature or severity of the claimant’s impairments, what the claimant can do 19 despite the impairments, and the claimant’s physical or mental restrictions. 20 § 416.927(a)(2). 20 C.F.R. § 416.927(d). But the 21 In determining how much deference to give a physician’s medical opinion, the 22 Ninth Circuit distinguishes between the opinions of treating physicians, examining 23 physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821, 830 (9th 24 Cir. 1995). Generally, an ALJ should give the greatest weight to a treating physician’s 25 opinion and more weight to the opinion of an examining physician than to one of a non- 26 examining physician. See Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th Cir. 1995); 27 see also 20 C.F.R. § 404.1527(c)(2)-(6) (listing factors to be considered when evaluating 28 -5- 1 opinion evidence, including length of examining or treating relationship, frequency of 2 examination, consistency with the record, and support from objective evidence). 3 If a treating or examining physician’s medical opinion is not contradicted by 4 another doctor, the opinion can be rejected only for “clear and convincing” reasons. 5 Lester, 81 F.3d at 830. Under this standard, the ALJ may reject a treating or examining 6 physician’s opinion if it is “conclusory, brief, and unsupported by the record as a whole[] 7 or by objective medical findings,” Batson v. Comm’r, 359 F.3d 1190, 1195 (9th Cir. 8 2004), or if there are significant discrepancies between the physician’s opinion and her 9 clinical records. See Bayliss, 427 F.3d at 1216. 10 When a treating or examining physician’s opinion is contradicted by another 11 doctor, it can be rejected “for specific and legitimate reasons that are supported by 12 substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citation omitted). This 13 standard requires the ALJ to provide “a detailed and thorough summary of the facts and 14 conflicting clinical evidence, stating his interpretation thereof, and making findings.” 15 Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986). Under either standard, “[t]he ALJ 16 must do more than offer his conclusions. He must set forth his own interpretations and 17 explain why they, rather than the doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418, 18 421-22 (9th Cir. 1988). 19 2. Dr. Qasimyar. 20 Plaintiff has been a patient of Dr. Qasimyar since January 5, 2012. A.R. 1660. On 21 October 4, 2012, Dr. Qasimyar wrote a letter indicating that Plaintiff was suffering from 22 chronic abdominal pain and severe irritable bowel syndrome, and taking pain medication 23 daily to deal with his symptoms. Id. On April 8, 2013, Dr. Qasimyar provided a second 24 letter stating that Plaintiff’s symptoms “may affect and limit his daily activities, including 25 work.” Id. at 1714. The letter indicated that Plaintiff suffered from irritable bowel 26 syndrome, diverticulosis, hypogonadism, hypertension, chronic pain syndrome, and 27 depression, and that Plaintiff had been prescribed medication that “may cause 28 psychomotor impairment and affect his ability to drive and function at work.” Id. The -6- 1 letter recommended that Plaintiff “remain off work until his medical condition 2 improves.” Id. 3 Dr. Qasimyar’s opinion is contradicted by another doctor – the reconsideration 4 level State agency medical consultant. A.R 123-43. Therefore, the Court must determine 5 whether the ALJ offered specific and legitimate reasons for rejecting Dr. Qasimyar’s 6 opinion – that is, whether the ALJ offered “a detailed and thorough summary of the facts 7 and conflicting clinical evidence.” Cotton, 799 F.2d at 1408. The ALJ did not satisfy 8 this standard. Her discussion of Dr. Qasimyar’s opinion spans a total of four sentences 9 and includes no citations to the record other than citations to the opinion itself. A.R. 32. 10 It certainly does not include a detailed and thorough summary of the facts and conflicting 11 clinical evidence. 12 The ALJ purported to find Dr. Qasimyar’s opinion inconsistent with his own 13 treatment records and the record as a whole, but she did not provide a single specific 14 example of inconsistency. Id. The Court’s own review of the record reveals that Dr. 15 Qasimyar’s opinion letters are consistent with his treatment records. His first letter 16 reported that Plaintiff was suffering from chronic abdominal pain and severe irritable 17 bowel syndrome, and taking pain medication daily to treat his symptoms. A.R. 1660. 18 His treatment records show that he diagnosed and treated Plaintiff for these conditions on 19 nineteen occasions between January 5, 2012 and February 8, 2013.3 His records also 20 3 21 22 23 24 25 26 27 28 See A.R. 1806 (notes for Jan. 5, 2012, reporting abdominal pain and abdominal bloating), 1804 (notes for Jan. 20, 2012, reporting abdominal pain), 1798 (notes for Feb. 9, 2012, reporting abdominal pain), 1796 (notes for Feb. 24, 2012, reporting abdominal tenderness), 1789 (notes for Apr. 12, 2012, reporting nausea and vomiting several times daily, diffuse abdominal pain, bloating, constipation, and diarrhea), 1786 (notes for Apr. 19, 2012, reporting abdominal pain, diarrhea, nausea, and vomiting), 1783 (notes for Apr. 27, 2012, reporting abdominal pain and nausea), 1780 (notes from May 15, 2013, reporting irritable bowel syndrome, acid reflux symptoms, abdominal bloating and nausea), 1771 (notes for July 20, 2012, reporting abdominal pain), 1767 (notes from Aug. 2, 2012, reporting chronic abdominal pain and irritable bowel syndrome and discussing related symptoms), 1764 (notes from Aug. 16, 2012, reporting abdominal pain), 1761 (notes for Aug. 23, 2012, reporting abdominal pain, acid reflux symptoms, constipation, diarrhea, nausea, and vomiting), 1754 (notes for Aug. 31, 2012, reporting abdominal pain, nausea, acid reflux symptoms, and vomiting), 1751 (notes for Sep. 20, 2012, reporting abdominal pain and nausea), 1748 (notes from Oct. 2, 2012, reporting abdominal pain, constipation, and diarrhea), 1745 (notes from Oct. 5, 2012, reporting abdominal pain), 1741 (notes from Oct. 16, 2012, reporting abdominal pain and nausea), -7- 1 indicate that Plaintiff was taking daily pain medication for his abdominal pain.4 Dr. 2 Qasimyar’s second letter indicated that Plaintiff suffered from irritable bowel syndrome, 3 diverticulosis, hypogonadism, hypertension, chronic pain syndrome, and depression, and 4 that Plaintiff was on prescriptions that “may cause psychomotor impairment and affect 5 his ability to drive and function at work.” Id. at 1714. Again, this opinion is consistent 6 with the underlying treatment records.5 7 The ALJ also stated that Dr. Qasimyar’s opinion was entitled to little weight 8 because it did not include a “function-by-function analysis of the claimant’s work related 9 limitations.” A.R. 32. This is not a specific and legitimate reason for discounting Dr. 10 Qasimyar’s opinion. 11 analysis, the ALJ must consider the doctor’s clinical evidence and any work related 12 limitations suggested by that evidence. Although Dr. Qasimyar’s clinical records plainly 13 suggest work-related limitations,6 the ALJ failed to address them. Whether or not a doctor has provided a function-by-function 14 Finally, the ALJ discounted Dr. Qasimyar’s opinion because it was not supported 15 by “objective testing.” A.R. 32. This is not a specific and legitimate reason. It is not 16 specific because the ALJ did not identify what testing should have been performed. It is 17 not legitimate because Dr. Qasimyar’s opinion is supported by objective evidence. See 18 19 20 21 22 1739 (notes from Nov. 15, 2012, reporting mild diffuse gastrointestinal tenderness and hypoactive bowel sounds), 1733 (notes for Dec. 13, 2012, reporting abdominal pain and acid reflux symptoms), 1726 (notes from Feb. 8, 2013, reporting abdominal pain). 4 See, e.g., A.R. 1798 (noting that Plaintiff takes Norco (Acetaminophen / Hydrocodone) for chronic abdominal pain). 5 23 24 25 26 27 28 See A.R. 1727 (notes from Feb. 8, 2013, listing Plaintiff’s current problems as including irritable bowel syndrome, diverticulosis, hypogonadism, hypertension, and chronic pain), 1783 (notes from Apr. 27, 2012, reporting anxiety and depression), 172728 (notes from Feb. 8, 2013, listing Plaintiff’s medications, including Norco); see also (Norco’s possible side effects include “[e]xtreme dizziness, drowsiness, or weakness”). 6 See A.R. 1726 (Plaintiff experiencing “constant” fatigue), 1733 (fatigue during “the majority of the day”), 1741, 1748 (moderate abdominal pain “several times daily,” with episodes of variable duration), 1754 (moderate abdominal pain “several times a week”), 1767 (severe abdominal pain that comes on with no apparent trigger, episodes of variable duration), 1771 (“constant” fatigue), 1780, 1786 (diarrhea three-to-four times a day), 1789 (nausea and vomiting several times a day). -8- 1 supra note 3. 2 The ALJ relied on several factors in concluding that Plaintiff was not disabled. 3 The Commissioner argues that four of these factors support the ALJ’s decision to 4 discount Dr. Qasimyar’s opinion. Doc. 24 at 7. The Court does not agree. 5 First, the ALJ noted that Plaintiff stated in March 2010 that he had not had a 6 gastrointestinal flare-up in six years. A.R. 30 (citing A.R. 833). This statement is not 7 inconsistent with Dr. Qasimyar’s opinion that Plaintiff suffered from gastrointestinal 8 issues between January 2012 and February 2013. 9 Second, the ALJ pointed to a treatment note from one of Plaintiff’s emergency 10 room visits, which states that Plaintiff was “walking all over the [emergency room] 11 without apparent discomfort.” A.R. 30 (citing A.R. 1000). But this treatment note has 12 nothing to do with Dr. Qasimyar or his findings, nor does it support the Commissioner’s 13 insinuation that Plaintiff is a malingerer. According to the treatment note, Plaintiff 14 presented to the emergency room with severe abdominal pain and hypoactive bowel 15 sounds, and was given morphine and Zofran. A.R. 1000. Sometime thereafter he was 16 able to walk around the emergency room without discomfort, and reported “some 17 intestinal cramping but not the pain he had when he arrived.” Id. The Court finds it 18 unremarkable that Plaintiff’s pain improved after receiving morphine, and sees nothing in 19 the treatment note to suggest malingering. 20 Third, the ALJ pointed to treatment notes from Dr. Sanjay Verma indicating that 21 Plaintiff’s symptoms improved with use of the drug Amitiza, and noted that Plaintiff did 22 not use it consistently. A.R. 30. As the ALJ mentioned and the medical records suggest, 23 however, Amitiza was not covered by Plaintiff’s insurance. See A.R. 29, 1685, 1687, 24 1699. The ALJ does not address the possibility that Plaintiff failed to use the drug 25 consistently because he could not afford it. 26 Fourth, the ALJ cited a treatment note from Jena Jones, PAC, which concluded 27 that Plaintiff presents “[n]o signs of Inflammatory Bowel disease” and that his symptoms 28 are likely due to “chronic narcotic-induced constipation or adhesions after surgery.” -9- 1 A.R. 31 (citing id. at 1708).7 2 Qasimyar concerns etiology, not symptomatology, it provides no basis for rejecting Dr. 3 Qasimyar’s finding that Plaintiff’s symptoms “may affect and limit his daily activities, 4 including work.” A.R. 1714. Since the disagreement between PAC Jones and Dr. 5 Because the ALJ did not provide specific and legitimate reasons for rejecting Dr. 6 Qasimyar’s opinion, the Commissioner’s decision must be vacated and the Court must 7 determine the appropriate remedy. Where an ALJ fails to provide adequate reasons for 8 rejecting evidence of a claimant’s disability, the Court must credit that evidence as true. 9 Lester, 81 F.3d at 834. An action should be remanded for an immediate award of 10 benefits when the following factors are satisfied: (1) the record has been fully developed 11 and further administrative proceedings would serve no useful purpose; (2) the ALJ has 12 failed to provide legally sufficient reasons for rejecting evidence, whether claimant 13 testimony or medical opinion; and (3) the ALJ would be required to find the claimant 14 disabled if the improperly discredited evidence were credited as true. Garrison v. Colvin, 15 759 F.3d 995, 1020 (9th Cir. 2014) (internal citations omitted). There is “flexibility” 16 which allows “courts to remand for further proceedings when, even though all conditions 17 of the credit-as-true rule are satisfied, an evaluation of the record as a whole creates 18 serious doubt that a claimant is, in fact, disabled.” Id. at 1020. 19 Even if Dr. Qasimyar’s opinion is credited as true, it is unclear from the 20 administrative record whether the ALJ would be required to find Plaintiff disabled. 21 Although Plaintiff’s representative did ask about the limiting effect of Plaintiff’s 22 gastrointestinal problems during cross-examination of the vocational expert, these 23 questions were not specifically tied to Dr. Qasimyar’s opinions and treating records. See 24 A.R. 97-104. Thus, the Court is unable to determine from the record whether there is 25 26 27 28 7 Although Dr. Qasimyar’s diagnosis of severe irritable bowel syndrome is contradicted by PAC Jones, it is supported by the findings of Plaintiff’s gastroenterologist, Dr. James D. Panetta, A.R. 1647-53, and the opinion of reconsideration level State agency medical consultants, id. at 134. To the extent the issue is relevant on remand, the ALJ should consider the findings and opinions of each of these doctors. - 10 - 1 some work Plaintiff could perform despite his chronic abdominal pain and 2 gastrointestinal problems. The Court therefore will remand for further proceedings. 3 3. Dr. Brar. 4 Dr. Brar is a pulmonologist who has provided Plaintiff treatment for sleep apnea. 5 Plaintiff asks the Court to consider opinions and other materials from Dr. Brar, which 6 were presented to the Commissioner for the first time on appeal of the ALJ’s decision. 7 See Doc. 23 at 18, 25. In addition, Plaintiff asks the Court to consider evidence from Dr. 8 Brar that has never been presented to the Commissioner. See id. at 19-23. 9 The Court does not have jurisdiction to consider this evidence. See 42 U.S.C. 10 § 405(g) (“The court shall have power to enter, upon the pleadings and transcript of the 11 record, a judgment affirming, modifying, or reversing the decision of the 12 Commissioner”). The Court may, however, “order additional evidence to be taken before 13 the Commissioner . . . upon a showing that there is new evidence which is material and 14 that there is good cause for the failure to incorporate such evidence into the record in a 15 prior proceeding.” Id. The Court finds that Plaintiff’s evidence may be material. The 16 Court also finds that there is good cause for Plaintiff’s failure to incorporate this evidence 17 into the record because it was produced after the close of the record. Therefore, the Court 18 will order the Commissioner to consider this evidence on remand. 19 C. 20 Plaintiff contends that the vocational expert found Plaintiff unable to work, and 21 that the ALJ improperly rejected this testimony. Doc. 23 at 4. Plaintiff misapprehends 22 the testimony. The vocational expert did not purport to assess Plaintiff’s limitations. 23 Instead, he answered hypothetical questions posed by the ALJ and Plaintiff’s attorney 24 about whether a person with specified limitations would be able to find work that exists 25 in significant numbers in the national economy. 26 hypothetical posed by the ALJ, the vocational expert testified that a person with the 27 specified limitations would be able to find such work. Id. at 98. In response to several of 28 the hypotheticals posed by Plaintiff’s representative, the vocational expert testified that a Testimony of Vocational Expert. - 11 - A.R. 97-100. In response to the 1 person with the specified limitations would not be able to find work. Id. at 100-03. The 2 ALJ concluded that Plaintiff’s limitations matched those specified in her hypothetical, not 3 those specified in the hypotheticals posed by Plaintiff’s representative. Compare id. at 97 4 (ALJ’s hypothetical) with id. at 28 (ALJ’s determination of Plaintiff’s residual functional 5 capacity). Therefore, the ALJ properly considered the testimony of the vocational expert. 6 D. 7 “Spouses, parents and other caregivers, siblings, other relatives, friends, 8 neighbors, clergy, and employers” are competent to testify regarding “the severity of [the 9 claimant’s] impairment(s) and how it affects the [claimant’s] ability to function.” Social 10 Security Ruling 06-03, 71 Fed. Reg. 45,593, 45,594 (Aug. 9, 2006). If the ALJ wishes to 11 discount this testimony, she must give reasons that are germane to each witness. Dodrill 12 v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). Family, Friend, and Coworker Letter. 13 Five individuals provided testimony on Plaintiff’s behalf, including his oldest 14 sister (A.R. 297-98), two former coworkers (A.R. 299, 307-09), his ex-wife (A.R. 300- 15 04), and his parents (A.R. 305-06, 310). The ALJ assigned “little weight” to these 16 opinions “because of their conclusory nature and inconsistency with the objective 17 medical evidence of record.” A.R. 32. The ALJ also concluded that the letters were 18 likely biased “given [the authors’] close relationships with the claimant.” Id. Finally, the 19 ALJ stated that, even if she were to accept these opinions as fully credible, she would not 20 be persuaded that Plaintiff is disabled. Id. 21 Upon independent review of the letters, the Court agrees that some of these letters 22 are conclusory in nature, and therefore entitled to little weight. However, two letters 23 provide testimony that is not conclusory and that is consistent with the medical evidence. 24 Plaintiff’s father reported that Plaintiff “is always running to the restroom, throwing up, 25 bleeding, in the hospital, or sick in bed” and that “[h]is stomach has kept him from being 26 able to do anything.” A.R. 305-06. This statement is generally consistent with Dr. 27 Qasimyar’s findings and provides insight into how Plaintiff’s conditions affect his ability 28 to function on a day-to-day basis. Plaintiff’s former coworker Dana Stanfield testifies - 12 - 1 that there were “[m]any times” when Plaintiff became ill at work and had to go to the 2 restroom, and that he often had to leave work early. Id. at 307-08. Like the testimony of 3 Plaintiff’s father, this testimony is consistent with Dr. Qasimyar’s findings and provides 4 insight into how Plaintiff’s condition affects his day-to-day functioning. 5 The fact that these individuals have a close relationship to Plaintiff is not a 6 germane reason for discounting their statements. 7 claimant’s spouse, parents, siblings, other relatives, friends, neighbors, clergy, and 8 employers will have a close relationship to the claimant. Nonetheless, the Social Security 9 Administration has determined that testimony from these individuals should be 10 considered where it provides insight into “the severity of [the claimant’s] impairment(s) 11 and how it affects the [claimant’s] ability to function.” 71 Fed. Reg. at 45,594. The ALJ 12 is not free to second-guess this determination based on a generalized assumption that 13 familiarity breeds bias. See generally Nat’l Ass’n of Home Builders v. Norton, 340 F.3d 14 835, 852 (9th Cir. 2003) (agency must comply with its own rules). On remand, the ALJ 15 should address the testimony of Plaintiff’s father and Ms. Stanfield. It will always be the case that a 16 E. 17 Plaintiff contends that the ALJ erred in finding that he had a history of alcohol 18 abuse and drug-seeking behavior. Doc. 25 at 1-3. The Court does not agree. There is 19 evidence in the record to support these conclusions. See A.R. 514 (reporting that Plaintiff 20 drinks 20 beers per week), 1723 (reporting that Plaintiff tested positive for non- 21 prescribed Oxycodone). The Court will not disturb the ALJ’s findings on these matters. Alcohol Abuse and Drug-Seeking Behavior. 22 IT IS ORDERED that the final decision of the Commissioner of Social Security 23 is remanded for further proceedings consistent with this opinion. The Clerk shall enter 24 judgment accordingly and terminate this case. 25 Dated this 21st day of March, 2016. 26 27 28 - 13 -

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