Chad Cleon Green v. Carolyn W. Colvin

Filing 26

MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi: IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision. (kh)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

CENTRAL DISTRICT OF CALIFORNIA

9
10
11

CHAD C. GREEN,
Plaintiff,

12

v.

13
14
15

NANCY A. BERRYHILL1, Acting
Commissioner of Social Security,
Defendant.

16
17

)
)
)
)
)
)
)
)
)
)
)
)

Case No. LA CV 16-3645 JCG
MEMORANDUM OPINION AND
ORDER

18

Chad C. Green (“Plaintiff”) challenges the Social Security Commissioner’s

19

decision denying his application for disability benefits. Plaintiff contends that the

20

Administrative Law Judge (“ALJ”) failed to discuss his mother’s administrative

21

hearing testimony, and inadequately assessed her third-party function report. (See

22

Joint Stip. at 34-36, 38-40.) The Court agrees with Plaintiff for the reasons discussed

23

below.

24
25
26
27
1

28

The Court DIRECTS the Clerk of Court to update the case caption to reflect Nancy A.
Berryhill as the proper Defendant. See Fed. R. Civ. P. 25(d).

1

A.

1

The ALJ Improperly Ignored Plaintiff’s Mother’s Testimony, and
Inadequately Assessed Her Third-Party Function Report

2

As a general matter, the ALJ may discount the testimony of lay witnesses only if

3
4

he or she provides specific “reasons that are germane to each witness.” Dodrill v.

5

Shalala, 12 F.3d 915, 919 (9th Cir. 1993); accord Lewis v. Apfel, 236 F.3d 503, 511

6

(9th Cir. 2001) (“Lay testimony as to a claimant’s symptoms is competent evidence

7

that an ALJ must take into account, unless he or she expressly determines to disregard

8

such testimony and gives reasons germane to each witness for doing so.”).
Here, first, the ALJ failed to acknowledge Plaintiff’s administrative hearing

9
10

testimony at all, let alone provide reasons for disregarding it.2 (AR at 17, 42-47, 75-

11

86); see Tobeler v. Colvin, 749 F.3d 830, 833-34 (9th Cir. 2014) (“[L]ay witness

12

testimony as to a claimant’s symptoms or how an impairment affects ability to work is

13

competent evidence and therefore cannot be disregarded without comment”); White v.

14

Colvin, 585 F. App’x 425, 426 (9th Cir. 2014) (“ALJ . . . erred by failing to explain her

15

reasons for disregarding the lay witness testimony of [claimant’s] wife, . . . and by

16

failing to discuss it altogether.”).

17

Second, the ALJ’s one-line mention of Plaintiff’s mother’s third-party function

18

report is simply insufficient for appellate review. (AR at 17, 212-19); Brown-Hunter

19

v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (federal courts “demand that the agency

20

set forth the reasoning behind its decisions in a way that allows for meaningful

21

review”); Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015) (reviewing court may

22

only affirm agency action on grounds invoked by agency).

23
24
25
26
27
28

2

The Commissioner does not directly respond to Plaintiff’s argument that the ALJ failed to
address his mother’s administrative hearing testimony, and instead merely states that this omission
“does not take away from the ALJ’s consideration of Plaintiff’s mother’s function report.” (See Joint
Stip. at 37 n.8); see Kinley v. Astrue, 2013 WL 494122, at *3 (S.D. Ind. Feb. 8, 2013) (“The
Commissioner does not respond to this [aspect of claimant’s] argument, and it is unclear whether this
is a tacit admission by the Commissioner that the ALJ erred or whether it was an oversight. Either
way, the Commissioner has waived any response.”).

2

Thus, the ALJ improperly failed to discuss Plaintiff’s mother’s testimony, and

1
2

inadequately assessed her third party function report.

3

B.

Remand is Warranted

4

With error established, this Court has discretion to remand or reverse and award

5

benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Where no useful

6

purpose would be served by further proceedings, or where the record has been fully

7

developed, it is appropriate to direct an immediate award of benefits. Benecke v.

8

Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004). But where outstanding issues must be

9

resolved before a determination can be made, or where the record does not make clear

10

that proper evaluation of the evidence would require a disability finding, remand is

11

appropriate. Id. at 594.

12

Here, in light of Plaintiff’s severe impairments related to his head injury, and

13

high relevance of his mother’s testimony and third-party function report3, the Court

14

cannot confidently conclude that the error in ignoring the evidence was harmless. See

15

Marsh, 792 F.3d at 1173. On remand, the ALJ shall assess the testimony and third-

16

party function report, and either credit them, or provide germane reasons for any

17

rejected portion. Dodrill, 12 F.3d at 919; Lewis, 236 F.3d at 511.
Finally, the Court is mindful that “the touchstone for an award of benefits is the

18
19

existence of a disability, not the agency’s legal error.” Brown-Hunter, 806 F.3d at 495.

20

Because it is unclear, on this record, whether Plaintiff is in fact disabled, remand here

21

is on an “open record.” Id.; Burrell v. Colvin, 775 F.3d 1133, 1141-42 (9th Cir. 2014).

22

The parties may freely take up any issue raised in the Joint Stipulation, and any other

23

issues relevant to resolving Plaintiff’s claim of disability, before the ALJ. Either party

24

may address those points in the remanded, open proceeding.

25
26
27
28

3

Plaintiff suffered traumatic brain injury from a car accident. (AR at 15, 64-65.) He was in a
coma for two weeks, received significant treatment, and had to move back in with his mother after
the accident. (Id. at 33-35, 42, 56, 64-65, 73-74, 212; Joint. Stip. at 35 (Commissioner concedes that
“Plaintiff experienced head trauma and had significant treatment related to the accident . . . .”).) His
mother provided detailed testimony about his abilities at two administrative hearings. (AR at 42-47,
75-86.)

3