George Chavez II v. Michael J Astrue

Filing 17

MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh: For the reasons set forth above, the Agency's decision is reversed and the case is remanded for further proceedings consistent with this opinion. IT IS SO ORDERED. (ca)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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GEORGE CHAVEZ, II,
Plaintiff,

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v.
MICHAEL J. ASTRUE,
COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,
Defendant.

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Case No. ED CV 11-312-PJW
MEMORANDUM OPINION AND ORDER

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I.

INTRODUCTION

Plaintiff appeals a decision by Defendant Social Security

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Administration (“the Agency”), denying his application for

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Supplemental Security Income (“SSI”).

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Administrative Law Judge (“ALJ”) erred when he: (1) failed to obtain

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the testimony of a vocational expert; (2) found that Plaintiff was not

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credible; and (3) failed to properly consider Plaintiff’s mother’s

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testimony.

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reversed and the case is remanded for further proceedings consistent

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with this opinion.

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He claims that the

For the reasons discussed below, the Agency’s decision is

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II.

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SUMMARY OF PROCEEDINGS

In December 2007, Plaintiff applied for SSI, alleging that he was

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disabled due to depression, anxiety, mood disorder, anger issues, and

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paranoia.

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denied the application initially and on reconsideration.

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Plaintiff then requested and was granted a hearing before an ALJ.

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Plaintiff appeared with counsel and testified at the hearing on July

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22, 2009.

(AR 17-34.)

The ALJ subsequently issued a decision denying

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benefits.

(AR 10-16.)

Plaintiff appealed to the Appeals Council,

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(Administrative Record (“AR”) 81-83, 90.)

which denied review.

(AR 4-6.)

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III.
A.

The Agency
(AR 37-46.)

He then commenced this action.
ANALYSIS

The ALJ’s Failure to Employ a Vocational Expert
The ALJ concluded that Plaintiff suffered from an affective mood

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disorder but was capable of performing a full range of work at all

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levels, provided it did not involve the public and did not require

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“intense interpersonal interactions with supervisors or co-workers.”

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(AR 12.)

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“Grids” and concluded that Plaintiff was not disabled.

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Plaintiff argues that his limitations precluded the use of the Grids.

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For the following reasons, the Court finds that it is not clear

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whether the ALJ should have used the Grids and, therefore, remand is

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warranted on this issue.

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The ALJ then consulted the Medical-Vocational Guidelines or
(AR 16.)

The Grids are a set of rules that direct whether a claimant is or

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is not disabled.

20 C.F.R. Chapter III, Part 404, Subpart P, Appendix

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2, § 200.00.

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jobs that exist throughout the national economy for the various

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functional levels of exertion, i.e., sedentary, light, medium, and

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heavy.

Incorporated within the Grids is the number of unskilled

Id. at § 200.00(b).

An ALJ may only rely on the Grids if they
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“completely and accurately represent a claimant’s limitations,” i.e.,

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the claimant is able to perform the “full range of jobs in a given

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category”.

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(emphasis in original).

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has a severe, non-exertional limitation that would significantly limit

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the range of work he could perform.

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278 F.3d 947, 960 (9th Cir. 2002) (holding vocational expert must be

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consulted when the Grids do not “adequately take into account

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claimant’s abilities and limitations”).

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Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999)
An ALJ may not use the Grids if a claimant

See, e.g., Thomas v. Barnhart,

The question presented here is whether Plaintiff’s limitation to

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jobs involving “non-public work with no intense interpersonal

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interactions with supervisors or co-workers” precludes the use of the

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Grids.

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therefore, remand is required.

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ALJ’s prohibition on jobs involving “intense interpersonal

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interactions with supervisors or co-workers” means.

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explain it and the Court does not find that this phrase has a common

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or generally understood meaning.

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gauge what impact if any such a restriction would have on the Grids

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because it cannot discern the number of jobs that would be affected by

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such a limitation.

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included in the Grids that qualify as non-public jobs because there is

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no breakdown between public and non-public jobs in the Grids.

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clarity on these issues, the Court cannot determine whether the ALJ

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erred or not.

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further explain these limitations and the impact they do or do not

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have on the Grids.

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the ALJ will need to call a vocational expert.

The Court cannot say with certainty whether it does and,
To begin with, it is unclear what the

The ALJ did not

As such, the Court is unable to

Nor can the Court quantify the number of jobs

Absent

For that reason, remand is required to allow the ALJ to

If they have a substantial impact on the Grids,

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See Hoopai v. Astrue,

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499 F.3d 1071, 1076 (9th Cir. 2007) (explaining vocational expert

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required when there are significant and sufficiently severe non-

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exertional limitations not taken into account by the Grids).

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The Agency disagrees.

It argues that Plaintiff’s affective mood

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disorder is akin to the claimant’s depression in Hoopai, where the

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Ninth Circuit upheld the use of the Grids.

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Court would agree to a certain extent that there are similarities.

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The ALJ in the case at bar found that Plaintiff had no restrictions in

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activities of daily living, no difficulties in concentration,

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persistence, or pace, and only slight difficulties in social

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functioning.

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had moderate difficulties maintaining concentration, performing

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activities within a schedule, and attending work.

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1076-77.

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restriction to non-public work and work not involving intense

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interpersonal relationships, both of which the Court is unable to

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quantify in terms of their impact on the Grids.

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that the impact is non-quantifiable, can the Court conclude that the

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error was harmless.

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consideration.1

(AR 14.)

(Joint Stip. at 7-8.)

The

In Hoopai, the ALJ concluded that the claimant

Hoopai, 499 F.3d

But overlayed on the ALJ’s findings in the case at bar is a

Nor, due to the fact

As such, the issue is remanded for further

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The Court has not overlooked the fact that Plaintiff’s
counsel, a lawyer from the same law firm that represents Plaintiff in
this appeal, never objected to the ALJ not calling a vocational expert
and never suggested at the administrative hearing that a vocational
expert was necessary. (AR 33-34.) Nor did counsel raise the issue
when he appealed the ALJ’s decision to the Appeals Council. (AR 6.)
These failures approach invited error. See Williams v. Astrue, 2011
WL 1059124, at *3 (D. Or. Mar. 21, 2011) (applying invited error
doctrine to social security case where claimant’s counsel failed to
provide ALJ with medical records and argued on appeal that ALJ erred
in failing to fully develop the record because he did not obtain the
(continued...)
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B.

The ALJ’s Credibility Finding as to Plaintiff
The ALJ found that Plaintiff was not credible.

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that the ALJ erred in doing so.

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Plaintiff argues

For the following reasons, this

argument is rejected.

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Where, as here, a claimant produces objective medical evidence of

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an impairment that reasonably could be expected to produce the alleged

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symptoms, an ALJ must provide “specific, clear and convincing reasons”

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to discount the claimant’s testimony.

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1281 (9th Cir. 1996).

Smolen v. Chater, 80 F.3d 1273,

A fair reading of the ALJ’s decision

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establishes that he rejected Plaintiff’s testimony because it was

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contradicted by statements he had made to his treating doctors and

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because it was inconsistent with the medical record.

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ALJ also found that Plaintiff had at times exaggerated his symptoms

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when discussing his condition with doctors.

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legitimate reasons for questioning a claimant’s credibility.

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Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (holding lack of

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objective medical evidence to support claims is a factor ALJ can

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consider in evaluating claimant’s testimony); Batson v. Comm’r, 359

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F.3d 1190, 1196-97 (9th Cir. 2004) (holding “contradictions from [the

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claimant’s] own testimony and the lack of objective medical evidence

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supporting [his] claims,” among other things, justified the ALJ’s

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adverse credibility determination).

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record.

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suicidal and afraid he might hurt someone.

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when asked these same questions by treating doctors over the years, he

(AR 13.)

(AR 13.)

These are all

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See

And they are supported by the

Plaintiff testified at the administrative hearing that he was
(AR 20-21, 23, 26.)

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The

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(...continued)
records). Counsel is admonished to voice his concerns at the
administrative level so that needless appeals can be avoided.
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Yet,

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consistently denied that this was the case.2

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addition, generally speaking, the doctors who treated him described

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his impairments as mild.

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severe ailments Plaintiff described during the hearing.

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Further, though Plaintiff testified that his medications caused

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dizziness, drowsiness, and confusion, he consistently reported to his

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doctors that he did not suffer side effects from his medications.

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Plaintiff was not credible and that he had rehearsed his interview

(AR 213.)

(AR 211-16, 228-48.)

This is inconsistent with the
(AR 20-29.)

(AR

Finally, the examining psychologist found that

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with her in an effort to persuade her that he was impaired.

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94.)

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credibility finding.

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C.

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In

(AR 187-

These reasons in combination are adequate to support the ALJ’s
For that reason, it will not be disturbed.

Plaintiff’s Mother’s Testimony
Prior to the administrative hearing, Plaintiff’s mother submitted

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questionnaires in which she set forth that Plaintiff suffered from

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severe emotional/psychological problems that interfered with his

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ability to function.

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the administrative hearing.

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of Plaintiff’s problems were the result of his medications.

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32.)

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records did not support her belief that Plaintiff’s problems were

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caused by his medications.

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testimony because, as Plaintiff’s mother, she presumably wanted to

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help him and, in doing so, would be helping herself since she was

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supporting him.

(AR 114-21, 169-76.)
(AR 29-32.)

She testified similarly at

In the mother’s view, most
(AR 29-

The ALJ rejected this testimony on the ground that the medical

(AR 14.)

(AR 14.)

He further questioned her

Plaintiff contends that the ALJ erred in

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Plaintiff reported suicide ideation to his treating doctor on
two occasions between August 2007 and April 2009. (AR 235, 237.)
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rejecting the mother’s testimony for these reasons.

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below, this issue does not warrant remand.

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As explained

In order to reject the mother’s testimony, the ALJ was only

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required to set forth reasons that were germane to her testimony.

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Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001).

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between the mother’s testimony and the medical record is a germane

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reason for discounting her testimony, see Bayliss v. Barnhart, 427

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F.3d 1211, 1218 (9th Cir. 2005) (citing Lewis), and is supported by

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substantial evidence in the record.

See

The inconsistency

Plaintiff’s doctors did not

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attribute his condition or the manifestations of his condition to his

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medications.

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suffer any side effects from his medications, as did Plaintiff.

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210-16, 227-48.)

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mother’s testimony.

In fact, they consistently reported that he did not
(AR

Thus, this was a valid reason for rejecting the

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The ALJ’s second reason for questioning the mother’s testimony--

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that, as his mother, she was likely motivated to help him (AR 14)--is

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a little trickier.

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See, e.g., Romero v. Tansy, 46 F.3d 1024, 1030 (10th Cir. 1995)

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(concluding alibi testimony by defendant’s family members is of

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significantly less value than that of an objective witness); and see

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Ninth Circuit Model Civil Jury Instruction No. 1.11, Credibility of

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Witnesses (“In considering the testimony of any witness, you may take

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into account: . . . (4) . . . any bias or prejudice . . . .”).

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generally speaking, ALJs are entitled to employ ordinary credibility

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evaluation techniques in evaluating a witness’s testimony.

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F.3d at 1284.

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consider the fact that the witness is the claimant’s mother in

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assessing her credibility.

Arguably, this is germane to her credibility.

And,

Smolen, 80

But, at least in this circuit, ALJs are not allowed to

See Regennitter v. Comm’r of Social Sec.,
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166 F.3d 1294, 1298 (9th Cir. 1999); and Smolen, 80 F.3d at 1289 (“The

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fact that a lay witness is a family member cannot be a ground for

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rejecting his or her testimony.”); but cf. Greger v. Barnhart, 464

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F.3d 968, 972 (9th Cir. 2006) (upholding ALJ’s rejection of claimant’s

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former girlfriend’s testimony based, in part, on fact she had a close

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relationship with claimant and was possibly influenced by her desire

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to help him).

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or perceived bias stemming from the relationship between mother and

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son in analyzing the mother’s testimony.

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Thus, the ALJ erred when he took into account any real

The ALJ also, however, considered the fact that Plaintiff’s

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mother would benefit financially if Plaintiff received benefits

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because Plaintiff lived with her and she supported him.

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This may be a proper reason for questioning a witness’s credibility.

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See, e.g., Valentine v. Comm’r Soc. Sec., 574 F.3d 685, 694 (9th Cir.

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2009) (“[E]vidence that a specific spouse exaggerated a claimant’s

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symptoms in order to get access to his disability benefits, as opposed

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to being an ‘interested party’ in the abstract, might suffice to

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reject that spouse’s testimony.”).

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issue here, however, since the ALJ’s first reason–-that the mother’s

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testimony was inconsistent with the medical record–-is enough to

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support his finding that she was not credible.

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v. Comm’r, Soc. Sec., 533 F.3d 1155, 1162-63 (9th Cir. 2008) (holding

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reviewing court must determine whether remaining valid reason(s) for

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ALJ’s questioning claimant’s credibility amounts to substantial

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evidence).

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in rejecting the mother’s testimony.

(AR 14.)

The Court need not resolve the

See, e.g., Carmickle

For this reason, the Court finds that the ALJ did not err

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IV.

CONCLUSION

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For the reasons set forth above, the Agency’s decision is

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reversed and the case is remanded for further proceedings consistent

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with this opinion.3

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IT IS SO ORDERED.

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DATED: February 6, 2012.

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PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE

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S:\PJW\Cases-Soc Sec\CHAVEZ, 312\MEMO OPINION AND ORDER.wpd

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The Court has considered Plaintiff’s request that the case be
remanded for an award of benefits. That request is denied. It is not
clear that Plaintiff is entitled to benefits and further proceedings
are necessary to resolve that issue.
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