Stephanie M Perkins v. Carolyn W. Colvin

Filing 24

MEMORANDUM OPINION AND ORDER OF REMAND by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrative action consistent with this Opinion. See memorandum for details. (hr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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STEPHANIE M. PERKINS,
on behalf of Alfred Earl Perkins
(deceased),

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Plaintiff,

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Case No. CV 16-6089 JC
MEMORANDUM OPINION AND
ORDER OF REMAND

v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1

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Defendant.

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I.

SUMMARY
On August 15, 2016, Stephanie M. Perkins (“plaintiff”) filed a Complaint

on behalf of her late husband, Alfred Earl Perkins (“claimant”), seeking review of
the Commissioner of Social Security’s denial of claimant’s application for
benefits. The parties have consented to proceed before the undersigned United
States Magistrate Judge.
This matter is before the Court on the parties’ cross motions for summary
judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”). The
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Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is

28 hereby substituted for Carolyn W. Colvin as the defendant in this action.
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1 Court has taken both motions under submission without oral argument. See Fed.
2 R. Civ. P. 78; L.R. 7-15; August 16, 2016 Case Management Order ¶ 5.
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Based on the record as a whole and the applicable law, the decision of the

4 Commissioner is REVERSED AND REMANDED for further proceedings
5 consistent with this Memorandum Opinion and Order of Remand.
6 II.

BACKGROUND AND SUMMARY OF ADMINISTRATIVE

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DECISION

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On January 24, 2013, claimant filed an application for Disability Insurance

9 Benefits alleging disability beginning on July 28, 2010 (“alleged onset date”), due
10 to severe headaches, uncontrollable shaking, high blood pressure, stress, and
11 problems with memory and concentration. (Administrative Record (“AR”) 10,
12 166, 178). The claimant passed away on October 16, 2014. (AR 10, 175). The
13 Administrative Law Judge (“ALJ”) examined the medical record and heard
14 testimony from plaintiff (who was represented by counsel on behalf of the
15 claimant) and a vocational expert on January 27, 2015. (AR 26-49).
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On March 2, 2015, the ALJ determined that the claimant was not disabled

17 through the date of his death. (AR 10-20). Specifically, the ALJ found that prior
18 to the claimant’s death: (1) the claimant had engaged in substantial gainful
19 activity subsequent to the alleged onset date (AR 12-13); (2) the claimant suffered
20 from the following severe impairments: diabetes mellitus, seizure disorder,
21 history of kidney transplantation, obstructive airway disease, lumbago, and
22 depressive disorder not otherwise specified (AR 13); (2) the claimant’s
23 impairments, considered singly or in combination, did not meet or medically equal
24 a listed impairment (AR 13-14); (3) the claimant retained the residual functional
25 capacity to perform light work2 (20 C.F.R. § 404.1567(b)) with additional non26
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“Light work involves lifting no more than 20 pounds at a time with frequent lifting or

28 carrying of objects weighing up to 10 pounds.” 20 C.F.R. § 404.1567(b). “[T]he full range of
(continued...)

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1 exertional limitations3 (AR 14); (4) the claimant was unable to perform any past
2 relevant work (AR 18-19); (5) there were jobs in significant numbers in the
3 national economy that the claimant could have performed, specifically office
4 helper, mail clerk, and information clerk (AR 19); and (6) the claimant’s
5 statements regarding the intensity, persistence, and limiting effects of subjective
6 symptoms were not entirely credible (AR 15).
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On June 30, 2016, the Appeals Council denied plaintiff’s application for

8 review. (AR 1).
9 III.

APPLICABLE LEGAL STANDARDS

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A.

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To qualify for disability benefits, a claimant must show that the claimant is

Sequential Evaluation Process

12 unable “to engage in any substantial gainful activity by reason of any medically
13 determinable physical or mental impairment which can be expected to result in
14 death or which has lasted or can be expected to last for a continuous period of not
15 less than 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012)
16 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted). The
17 impairment must render the claimant incapable of performing the work the
18 claimant previously performed and incapable of performing any other substantial
19 gainful employment that exists in the national economy. Tackett v. Apfel, 180
20 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).
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(...continued)
light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8hour workday. Sitting may occur intermittently during the remaining time.” See SSR 83-10,
1983 WL 31251, at *6; see also 20 C.F.R. § 404.1567(b) (noting light work may “require[] a
good deal of walking or standing”).
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The ALJ determined that the claimant: (i) could not climb ladders, ropes, or scaffolds;
(ii) could not work at unprotected heights or around heavy machinery; (iii) could not work in
sunlight; (iv) needed to avoid even moderate exposure to dust, fumes, gas, odors, chemicals, and
mold; and (v) was limited to simple routine tasks with no more than occasional changes in the
workplace. (AR 14).

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In assessing whether a claimant is disabled, an ALJ is required to use the

2 following five-step sequential evaluation process:
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(1)

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Is the claimant presently engaged in substantial gainful activity? If
so, the claimant is not disabled. If not, proceed to step two.

(2)

Is the claimant’s alleged impairment sufficiently severe to limit

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the claimant’s ability to work? If not, the claimant is not

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disabled. If so, proceed to step three.

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(3)

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Does the claimant’s impairment, or combination of
impairments, meet or equal an impairment listed in 20 C.F.R.

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Part 404, Subpart P, Appendix 1? If so, the claimant is

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disabled. If not, proceed to step four.

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(4)

Does the claimant possess the residual functional capacity to

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perform claimant’s past relevant work? If so, the claimant is

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not disabled. If not, proceed to step five.

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(5)

Does the claimant’s residual functional capacity, when

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considered with the claimant’s age, education, and work

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experience, allow the claimant to adjust to other work that

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exists in significant numbers in the national economy? If so,

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the claimant is not disabled. If not, the claimant is disabled.

20 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th
21 Cir. 2006) (citations omitted); see also 20 C.F.R. § 404.1520(a)(4) (2012)
22 (explaining five-step sequential evaluation process).
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The claimant has the burden of proof at steps one through four, and the

24 Commissioner has the burden of proof at step five. Burch v. Barnhart, 400 F.3d
25 676, 679 (9th Cir. 2005) (citation omitted).
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B.

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Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of

Standard of Review

28 benefits only if it is not supported by substantial evidence or if it is based on legal
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1 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir.
2 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457
3 (9th Cir. 1995)).
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Substantial evidence is “such relevant evidence as a reasonable mind might

5 accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,
6 401 (1971) (citations and quotations omitted). It is more than a mere scintilla but
7 less than a preponderance. Robbins, 466 F.3d at 882 (citing Young v. Sullivan,
8 911 F.2d 180, 183 (9th Cir. 1990)). To determine whether substantial evidence
9 supports a finding, a court must “‘consider the record as a whole, weighing both
10 evidence that supports and evidence that detracts from the [Commissioner’s]
11 conclusion.’” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001)
12 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)).
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While an ALJ’s decision need not discuss every piece of evidence or be

14 drafted with “ideal clarity,” at a minimum it must explain the ALJ’s reasoning
15 with sufficient specificity and clarity to “allow[] for meaningful review.” Brown16 Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (citations and internal
17 quotation marks omitted); Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012)
18 (citation and quotation marks omitted).
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An ALJ’s decision to deny benefits must be upheld if the evidence could

20 reasonably support either affirming or reversing the decision. Robbins, 466 F.3d
21 at 882 (citing Flaten, 44 F.3d at 1457). Nonetheless, a court may not affirm
22 “simply by isolating a ‘specific quantum of supporting evidence.’” Id. at 882
23 (citation omitted). In addition, federal courts may review only the reasoning in the
24 administrative decision itself, and may affirm a denial of benefits only for the
25 reasons upon which the ALJ actually relied. Garrison v. Colvin, 759 F.3d 995,
26 1010 (9th Cir. 2014) (citation omitted).
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Even when an ALJ’s decision contains error, it must be affirmed if the error

28 was harmless. Treichler v. Commissioner of Social Security Administration, 775
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1 F.3d 1090, 1099 (9th Cir. 2014). An ALJ’s error is harmless if (1) it was
2 inconsequential to the ultimate nondisability determination; or (2) despite the
3 error, the ALJ’s path may reasonably be discerned, even if the ALJ’s decision was
4 drafted with less than ideal clarity. Id. (citation and quotation marks omitted).
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A reviewing court may not conclude that an error was harmless based on

6 independent findings gleaned from the administrative record. Brown-Hunter, 806
7 F.3d at 492 (citations omitted). When a reviewing court cannot confidently
8 conclude that an error was harmless, a remand for additional investigation or
9 explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173
10 (9th Cir. 2015) (citations omitted).
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DISCUSSION

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The parties basically agree that the ALJ erred by not addressing competent

13 lay statements about the claimant provided by the claimant’s sister, Sharon
14 Flanagan (“Ms. Flanagan”) in a “Function Report – Adult – Third Party”
15 (“Flanagan Third Party Report”). (Plaintiff’s Motion at 7; Defendant’s Motion at
16 10-12) (citing AR 195-203). As the Court cannot confidently conclude that such
17 error was harmless, a remand for additional investigation and/or explanation is
18 appropriate.
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A.

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Lay witness statements about a claimant’s symptoms or how an impairment

Pertinent Law

21 impacts the claimant’s ability to work is competent evidence that “cannot be
22 disregarded without comment.” Molina, 674 F.3d at 1114 (citation and quotation
23 marks omitted; emphasis in original); see also Tobeler v. Colvin, 749 F.3d 830,
24 833-34 (9th Cir. 2014) (same re: lay written statements) (citations omitted). An
25 ALJ “must give reasons that are germane to each witness” for rejecting competent
26 lay witness testimony. Molina, F.3d at 1114 (citing Dodrill v. Shalala, 12 F.3d
27 915, 919 (9th Cir. 1993)). An ALJ is not always required to discuss lay testimony
28 on an “individualized, witness-by-witness basis.” Id. For instance, “if the ALJ
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1 gives germane reasons for rejecting testimony by one witness, the ALJ need only
2 point to those reasons when rejecting similar testimony by a different witness.” Id.
3 (citing Valentine v. Commissioner Social Security Administration, 574 F.3d 685,
4 694 (9th Cir. 2009)).
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When an ALJ disregards or fails to provide germane reasons for rejecting

6 competent lay evidence, reversal is not warranted if the ALJ’s error was harmless.
7 Id. at 1122 (citations omitted). Such errors may be deemed harmless if a
8 reviewing court “can confidently conclude that no reasonable ALJ, when fully
9 crediting the [overlooked lay evidence], could have reached a different disability
10 determination.” Robbins, 466 F.3d at 885 (quoting Stout, 454 F.3d at 1055-56).
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B.

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Here, although the ALJ’s decision overall appears very thorough,

Analysis

13 thoughtful, and articulate, it nonetheless entirely overlooked competent lay
14 statements in the Flanagan Third Party Report. See, e.g., Molina, 674 F.3d at
15 1114-15 (noting “ALJ erred in failing to explain her reasons for disregarding
16 [competent] lay witness testimony, either individually or in the aggregate”). The
17 record may very well, as defendant contends, contain several germane reasons for
18 rejecting Ms. Flanagan’s lay statements. (Defendant’s Motion at 11-12).
19 Nonetheless, since the ALJ did not address such lay evidence at all, this Court may
20 not affirm the ALJ’s decision based on any such potential reasons.
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The Court cannot confidently conclude that the ALJ’s error was harmless.

22 For example, the vocational expert testified, in part, that if a hypothetical
23 individual with the same characteristics as the claimant were less productive (i.e.,
24 “would miss work two times a month continuously” or be “off-task 15 percent of
25 the time”), the individual would be unable to perform any prior or other work.
26 (AR 47-49). As discussed below, there are competent lay statements in the
27 Flanagan Third Party Report which, if fully credited, support inferences that the
28 claimant’s functioning was significantly more limited than the ALJ’s residual
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1 functional capacity assessment reflects, and that plaintiff’s resulting level of
2 productivity could have precluded all work. (AR 195-200). Hence this Court
3 cannot confidently conclude that a reasonable ALJ would not have reached a
4 different disability determination even if Ms. Flanagan’s lay statements had been
5 considered. Cf., e.g., Russell v. Colvin, 9 F. Supp. 3d 1168, 1187 (D. Or. 2014)
6 (Commissioner did not satisfy burden at step five to prove there was other work in
7 the national economy claimant could perform, in part, where vocational expert
8 testified that hypothetical claimant “would be unemployable” if the claimant were
9 “absent from work two days per month” or “unavailable ten percent or more of the
10 time, either not at work or if she had to lie down”).
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Defendant argues that the ALJ’s error was harmless, in part, because the

12 ALJ had “found plaintiff [sic] not fully credible, and Plaintiff does not contest the
13 ALJ’s finding.” (Defendant’s Motion at 12). An ALJ’s failure to give germane
14 reasons for rejecting competent lay evidence may be harmless to the extent (1) the
15 lay witness described the same, specific limitations as the claimant did in his or
16 her own testimony; (2) the ALJ provided well-supported and valid (i.e., clear and
17 convincing) reasons for rejecting the claimant’s own testimony regarding the
18 specific limitations; and (3) the reasons the ALJ articulated for rejecting the
19 claimant’s testimony regarding such limitations “apply with equal force to the lay
20 testimony” the ALJ failed to address. See Molina, 674 F.3d at 1121-22 (citations
21 omitted). In such cases, an ALJ’s decision must be affirmed even if the ALJ did
22 not “clearly link” rejection of the specific lay testimony to the reasons expressed
23 for rejecting the claimant’s similar testimony. Id. at 1121 (citation omitted). Here,
24 however, the record does not support finding the ALJ’s error harmless under such
25 a theory.
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First, the lay witness did not describe all of the same, specific limitations as

27 the claimant did in his own function report. For example, Ms. Flanagan’s
28 statements in several respects conflict with the claimant’s, as defendant recognized
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1 (Defendant’s Motion at 11), and even reflect more significant functional limitation
2 than the claimant’s statements. (Compare AR 195, 199, 200 [Flanagan statement
3 that the claimant’s impairments affected walking and standing, the claimant “can’t
4 stand or walk for a long length of time,” and the claimant purportedly could walk
5 only 20 minutes/three blocks before needing to rest for “maybe 10 [minutes]”]
6 with AR 223 [claimant noting no problem with walking or standing]; compare AR
7 196 [Flanagan noting claimant had difficulty buttoning shirt/zipping pants, and
8 “son shaves him”] with AR 219 [claimant noting no problem with personal care];
9 compare AR 198 [Flanagan noting claimant “can’t wash dishes because . . . he
10 breaks things”] with AR 220 [claimant stating he could wash dishes for 30
11 minutes in the morning]; compare AR 199 [Flanagan statements that claimant had
12 “not been able to [go fishing]” and “won’t go out alone”] with AR 221 [claimant’s
13 statements that he would “go fishing” with others and “go outside [alone] every
14 day”]); but compare AR 198 [Flanagan noting claimant shops in stores for “his
15 personal items or . . . a few household items”] with AR 221 [claimant’s statement
16 that he did “no shopping at all”]).
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Second, the reasons the ALJ articulated for rejecting the claimant’s

18 statements do not appear to “apply with equal force” to several of Ms. Flanagan’s
19 lay statements. For example, evidence that the claimant had a “primarily non20 medical explanation for [his] unemployment subsequent to the alleged onset date”
21 (AR 15, 17-18) arguably might undermine the credibility of the claimant’s
22 assertion that he suffered from a disabling condition. Nonetheless, evidence
23 which suggests that the claimant was dishonest about his true reason for seeking
24 disability benefits raises no questions about Ms. Flanagan’s overall veracity as a
25 witness, much less provide a germane reason for discrediting lay statements
26 regarding Ms. Flanagan’s personal observations of the specific impact the
27 claimant’s impairment-related symptoms had on the claimant’s day-to-day
28 functioning. (AR 195-200).
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Similarly, the ALJ wrote that “the claimant acknowledged activities and

2 abilities that suggest he [] remained capable of physical and mental activities
3 consistent with those in the [ALJ’s] residual functional capacity assessment [for
4 the claimant].” (AR 18). Nonetheless, if credited as true, several of Ms.
5 Flanagan’s statements regarding her observations of the claimant’s functional
6 limitations would actually undermine the ALJ’s reasons for discrediting the
7 claimant. (Compare AR 18 [ALJ finding the claimant less credible in light of “the
8 claimant’s reported activities and abilities,” specifically evidence that the
9 claimant, among other things, “remained able to . . . wash dishes, go outside every
10 day, and travel unaccompanied,” “enjoyed fishing,” and “had no problems with
11 standing”)] with AR 195, 198-200 [Flanagan observations that the claimant had
12 difficulty with walking and standing, “[could not] wash dishes[,]” “[would not] go
13 out alone,” and had “not been able to [go fishing]”).
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Finally, the ALJ discredited the claimant’s overall subjective statements, in

15 part, because “the longitudinal [medical] evidence in th[e] case [] fails to reveal
16 evidence of ongoing, disabling symptoms since the alleged onset date.” (AR 1517 17). Nonetheless, an ALJ may not discredit otherwise competent lay statements
18 solely because they are “not supported by medical evidence in the record.” Bruce
19 v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009) (emphasis added) (citing Smolen v.
20 Chater, 80 F.3d 1273, 1289 (9th Cir. 1996)); Massey v. Commissioner of Social
21 Security Administration, 400 Fed. Appx. 192, 194 (9th Cir. 2010) (“[An] ALJ may
22 not reject lay testimony solely because it is not supported by objective medical
23 evidence.”) (citing id.).
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1 V.

CONCLUSION4

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For the foregoing reasons, the decision of the Commissioner of Social

3 Security is reversed in part, and this matter is remanded for further administrative
4 action consistent with this Opinion.5
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LET JUDGMENT BE ENTERED ACCORDINGLY.

6 DATED: April 17, 2017
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_____________/s/____________________
Honorable Jacqueline Chooljian
UNITED STATES MAGISTRATE JUDGE

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The Court need not, and has not adjudicated plaintiff’s other challenges to the ALJ’s

23 decision, except insofar as to determine that a reversal and remand for immediate payment of
24 benefits would not be appropriate.
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When a court reverses an administrative determination, “the proper course, except in rare
circumstances, is to remand to the agency for additional investigation or explanation.”
Immigration & Naturalization Service v. Ventura, 537 U.S. 12, 16 (2002) (citations and
quotations omitted). Remand is proper where, as here, “additional proceedings can remedy
defects in the original administrative proceeding. . . .” Garrison, 759 F.3d at 1019 (citation and
internal quotation marks omitted).

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