Darryl A. Carter v. Mr. J. L. Norwood

Filing 36

MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. 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. (ca)

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UNITED STATES D I S T R I C T COURT CENTRAL D I S T R I C T OF CALIFORNIA S U S I E ACOSTA, Plaintiff, v. MICHAEL J . ASTRUE, Commissioner of the Social Security Administration, Defendant.
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C a s e N o . ED CV 0 9 - 2 0 3 7 - P J W MEMORANDUM OPINION AND ORDER

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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

t h a t t h e A d m i n i s t r a t i v e Law J u d g e ( " A L J " ) e r r e d i n : 1 ) f a i l i n g t o p r o p e r l y c o n s i d e r h e r h u s b a n d ' s t e s t i m o n y ; 2) n o t p r o p e r l y t a k i n g i n t o account her mental impairment; and 3) rejecting the opinion of her treating psychiatrist. For the reasons explained below, the Court

concludes t h a t the ALJ erred when he f a i l e d t o address the husband's testimony and remand i s warranted for further consideration of this issue.

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I I . SUMMARY OF PROCEEDINGS On A p r i l 18, 2006, P l a i n t i f f a p p l i e d f o r SSI and D i s a b i l i t y Insurance benefits ("DIB"), claiming that she was unable to work because of depression, diabetes, shoulder pain, and problems with her eyes, lungs, and kidneys.l 19.) (Administrative Record ("AR") 17, 92, 117-

The Agency denied the applications i n i t i a l l y and on (AR 8 6 - 9 7 , 1 0 1 - 1 1 . ) Plaintiff then requested and

reconsideration.

was granted a hearing before an ALJ.

(AR 2 6 , 1 1 6 . )

On A p r i l 2 , 2 0 0 8 , (AR 4 2 -

Plaintiff appeared at the hearing with counsel and testified. 60.) At t h e hearing, she withdrew her a p p l i c a t i o n f o r DIB and
(AR 3 6 - 3 7 . )

proceeded only on her SSI claim.

On S e p t e m b e r 2 5 , 2 0 0 8 , (AR 1 7 -

the ALJ issued a decision denying her application for SSI. 25.)

Plaintiff appealed to the Appeals Council, which denied her (AR 1 - 4 . ) She then f i l e d the instant action.

request for review.

I I I . DISCUSSION Lay Witness Testimony

P l a i n t i f f ' s husband testified at the administrative hearing that P l a i n t i f f cannot go outside by h e r s e l f 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. 66.) (AR 6 3 , 6 4 ,

He t o l d t h e A L J t h a t P l a i n t i f f d o e s n o t g e t o u t o f b e d t h r e e

days a week and, on other days, she only goes to the kitchen to get some food. (AR 6 7 . ) The ALJ f a i l e d t o mention the husband's

1 P l a i n t i f f ' s SSI application i s not part of the administrative record; however, the p a r t i e s agree t h a t i t was f i l e d on April 18, 2006. (Joint Stip. at 2 n.2.) The Court takes the description of her complaints from the Agency's i n i t i a l denial of the SSI application. (AR 9 2 . )

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testimony in his decision.

(AR 1 7 - 2 5 . )

Plaintiff contends that this The Court agrees.

oversight constitutes reversible error.

L a y t e s t i m o n y i s c o m p e t e n t e v i d e n c e a n d a n ALJ i s r e q u i r e d t o consider i t in determining i f a claimant is disabled.

See Nguyen v.

Chater, 100 F.3d 1462, 1467 (9th Cir. 1996)

("Lay testimony as to a

claimant's symptoms i s competent evidence which the Secretary must take into account."). error. Failure to consider lay testimony constitutes

See Stout v. Comrn'r, Soc. Sec. Admin., 454 F.3d 1050, 1056
Further, the error mandates reversal unless the

(9th Cir. 2006).

d i s t r i c t court can conclude t h a t no reasonable ALJ, when f u l l y crediting the testimony, could have found that the claimant was disabled.

Id.

("[W]e hold that where the ALJ's error l i e s in a

failure to properly discuss competent lay testimony favorable to the claimant, a reviewing court cannot consider the error harmless unless i t can c o n f i d e n t l y conclude t h a t no reasonable ALJ, when f u l l y crediting the testimony, could have reached a different disability determination."). Accepting the husband's testimony that P l a i n t i f f 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 t h r e e days a week, a reasonable ALJ would l i k e l y have concluded t h a t P l a i n t i f f was disabled. Thus, the ALJ's error here was not

harmless and remand i s warranted. Defendant disagrees. It argues that the husband's testimony

would not have a l t e r e d the outcome since, i n many respects, i t merely echoed P l a i n t i f f ' s testimony and P l a i n t i f f ' s testimony was properly r e j e c t e d by the ALJ. (Joint Stip. at 7-8.) It points out further

that, where the husband's testimony did not echo P l a i n t i f f ' s
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testimony, i t contradicted i t , further calling into question Plaintiff's claims. This argument i s rejected out of hand. This is not the time or

p l a c e t o a r g u e how t h e ALJ c o u l d h a v e r e j e c t e d t h e h u s b a n d / s t e s t i m o n y had he addressed i t . This i s the time and place to set forth what the

husband said and then determine i f , assuming those statements were f u l l y c r e d i t e d by the ALJ, he could have concluded t h a t P l a i n t i f f was disabled. H e r e , i t s e e m s c l e a r t h a t a r e a s o n a b l e ALJ c o u l d h a v e s o

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concluded and, therefore, remand i s required. 2. The ALJ's Credibility Evaluation

Though s e t f o r t h u n d e r t h e h e a d i n g , " w h e t h e r t h e ALJ p r o p e r l y evaluated Susie Acosta/s mental impairments," (Joint Stip. at 3), P l a i n t i f f ' s second argument r e l a t e s t o the ALJ's finding that she was not credible. Plaintiff complains throughout this section that this For the following reasons, the Court concludes

finding was erroneous.

t h a t the ALJ's finding t h a t P l a i n t i f f was not c r e d i b l e was based on specific and legitimate reasons and that those reasons were supported by substantial evidence in the record. affirmed. ALJs are tasked with judging the c r e d i b i l i t y of witnesses. making these c r e d i b i l i t y determinations, ALJs employ ordinary credibility evaluation techniques. 1284 (9th Cir. 1996).
Smolen v. Chater, 80 F.3d 1273,

As a r e s u l t , i t w i l l b e

In

Where a claimant has produced objective medical

evidence of an impairment which could reasonably be expected to produce the symptoms alleged and there i s no evidence of malingering, the ALJ can only r e j e c t the claimant's testimony for s p e c i f i c , c l e a r , and convincing reasons.
Id. at 1283-84.

These reasons must be

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supported by substantial evidence in the record. 278 F.3d 947, 959 (9th eire 2002}.2

Thomas v. Barnhart,

When P l a i n t i f f a p p l i e d f o r b e n e f i t s i n A p r i l 2 0 0 6 , s h e r e p o r t e d t h a t she was SUffering from, among o t h e r things, depression.
~53.)

(AR

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Her a p p l i c a t i o n was denied i n i t i a l l y i n August 2006 and on In June 2007, P l a i n t i f f went to

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reconsideration in January 2007.

Arcadia Mental Health Center for treatment for the f i r s t time, complaining for the f i r s t time t h a t she was suffering from hallucinations and phobic and persecutory ideation. 36.) at 31,
(AR 3 1 9 - 2 4 ,

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333-

As a r e s u l t , her Global Assessment of Functioning was assessed (AR 3 2 4 ) , m e a n i n g t h a t s h e w a s s e v e r e l y i m p a i r e d .

S e e Am.

Psychiatric Ass'n, Diagnostic and S t a t i s t i c a l Manual o f Mental

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Disorders 34 (4th ed. t e x t rev. 2000).

The ALJ discounted P l a i n t i f f ' s

claims, finding t h a t she was a t a minimum exaggerating and, l i k e l y , simply feigning sYmptoms.
(AR 2 1 - 2 3 . )

P l a i n t i f f argues t h a t the ALJ There i s no merit to

erred i n concluding t h a t she was not credible. this argument.

The ALJ found t h a t P l a i n t i f f never reported t h a t 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 2 1 - 2 2 . ) The fact that

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P l a i n t i f f did not report psychotic symptoms u n t i l a f t e r her claim was 2 Though t h e ALJ arguably concluded t h a t P l a i n t i f f was malingering, a t l e a s t as t o her claim t h a t she was experiencing p s y c h o t i c e p i s o d e s , (AR 2 2 ( \ \ [ T l h e c l a i m a n t ' s c o n d u c t s t r o n g l y suggests t h a t she g r e a t l y exaggerated, i f not fabricated symptoms a t Arcadia Mental Health. H ), the ALJ did not s t a t e t h a t he was finding t h a t P l a i n t i f f was malingering so the Court will use the more stringent standard in evaluating the credibility determination.
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denied by the Agency i s supported by substantial evidence in the record and i s a legitimate reason to question a claimant's credibility. Cir. 2009)

S e e D e Guzman v . A s t r u e , 3 4 3 F e d . A p p x . 2 0 1 , 2 0 4 ( 9 t h

(affirming adverse credibility finding where the evidence

supported the ALJ's finding t h a t there was no explanation for claimant's symptoms "suddenly [taking] a turn for the worseu except t h a t her d i s a b i l i t y b e n e f i t s were denied); Bicknell v . Astrue, 343 Fed. Appx. 275, 277 (9th Cir. 2009) (holding t h a t ALJ p r o p e r l y

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discredited claimant's testimony based on "'dramatic s h i f t ' in the reporting of [claimant's] back-pain-related symptoms between being cleared for work by [his doctor] on September 26, 2001 and his f i r s t interview with [different doctor] on October 1, 2001. U
).

The ALJ a l s o r e l i e d on the f a c t t h a t , a t the same time t h a t P l a i n t i f f was reporting t o her p s y c h i a t r i s t that she was experiencing severe p s y c h i a t r i c symptoms, she was not t e l l i n g her t r e a t i n g doctor about them. 3 (AR 2 2 . ) This fact also is supported by substantial (AR 2 7 6 - 7 8 ( t r e a t i n g p h y s i c i a n n o t e d t h a t

evidence in the record.

P l a i n t i f f was depressed i n v i s i t s in June and August 2006 and April 2007, but d i d not note any marked change i n sYmptoms during t h a t time, did not note any complaints of paranoia or hallucinations, and did not note any s i g n i f i c a n t mental impairments in v i s i t s in August 2007 and January 2008).) veracity. It, too, is a valid reason to question a claimant's

See Wallace v. Astrue, 276 Fed. Appx. 628, 628-29 (9th Cir.

3 The ALJ noted, and the Court agrees, " [ i ] f the claimant was t r u l y experiencing the level of symptoms she claims including paranoia and h a l l u c i n a t i o n s , [one] would expect her primary medical source, who p r e v i o u s l y t r e a t e d her for depression, [to] note a t l e a s t some abnormalities or concerns with her presentation and mental status. U (AR 2 2 . )

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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 p s y c h i a t r i c treatment"); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (concluding inconsistencies in claimant's statements

support discrediting the testimony of claimant) . 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 P s y c h i a t r i s t ' s Opinion

Treating p s y c h i a t r i s t Edgar Drew from Arcadia Mental Health Center determined t h a t P l a i n t i f f was severely impaired. discounted this opinion. The ALJ

P l a i n t i f f complains t h a t t h e ALJ f a i l e d t o For the following

provide clear and convincing reasons for doing so. reasons, this claim, too, is rejected.

I t is well-established that, "[b]y rule, the Social Security Administration favors the opinion of a treating physician over nontreating physicians." 2007).

Orn v . A s t r u e , 4 9 5 F . 3 d 6 2 5 , 6 3 1 ( 9 t h C i r .

Where the t r e a t i n g physician's opinion i s contradicted by a

n o n - t r e a t i n g p h y s i c i a n ' s o p i n i o n , t h e ALJ m u s t p r o v i d e s p e c i f i c a n d legitimate reasons, supported by substantial evidence in the record, for rejecting it.
Id. a t 632 ( c i t i n g Lester v. Chater, 81 F.3d 821,

830 (9th Cir. 1995)).

Though, in general, a treating doctor's opinion

i s e n t i t l e d to deference, see, e.g., id. a t 631, a treating doctor's opinion regarding the ultimate issue of disability is not entitled to any special weight.

S e e B a t s o n v . C o m m ' r o f S o c . S e c . A d m i n . , 359
(reaffirming that treating physician's

F.3d 1190, 1195 (9th Cir. 2004)

opinion i s "not binding on an ALJ with respect t o the . . . u l t i m a t e
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determination of d i s a b i l i t y " ) ; 20 C.F.R. § 404.1527(e) (3); see also Social Security RUling 96-5p (stating that opinion that claimant is d i s a b l e d , "even when o f f e r e d by a t r e a t i n g source, . . . can never be

entitled to controlling weight or given special significance"). P l a i n t i f f t o l d her t r e a t i n g p s y c h i a t r i s t t h a t she was suffering from delusions and hallucinations. Based on these claims, the

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t r e a t i n g p s y c h i a t r i s t determined t h a t P l a i n t i f f was severely impaired. But P l a i n t i f f was not credible and, therefore, an opinion based on her r e p o r t s of what she was experiencing was worthless. properly discounted i t . As such, t h e ALJ

See Tonapetyan, 242 F.3d a t 1149 (holding

t h a t , when the record supports the ALJ's discounting of the claimant's c r e d i b i l i t y , t h e ALJ i s f r e e t o disregard a d o c t o r ' s opinion premised o n t h e c l a i m a n t ' s s u b j e c t i v e c o m p l a i n t s ) ; F a i r v . Bowen, 8 8 5 F . 2 d 5 9 7 , 605 (9th Cir. 1989) physician's opinion (concluding ALJ properly disregarded t r e a t i n g
~because

i t was premised on [claimant/s] own

s u b j e c t i v e complaints, which t h e ALJ had already p r o p e r l y discounted"). For t h i s reason, the Court concludes that there i s no

merit to this claim. I V . CONCLUSION For these reasons, the Agency's decision i s reversed and the case i s remanded f o r f u r t h e r proceedings c o n s i s t e n t with t h i s memorandum opinion and order. I T I S SO ORDERED. DATED:

APril~,

2010.

JUDGE
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