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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 GEORGE CHAVEZ, II, Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 11-312-PJW MEMORANDUM OPINION AND ORDER 16 17 18 I. INTRODUCTION Plaintiff appeals a decision by Defendant Social Security 19 Administration (“the Agency”), denying his application for 20 Supplemental Security Income (“SSI”). 21 Administrative Law Judge (“ALJ”) erred when he: (1) failed to obtain 22 the testimony of a vocational expert; (2) found that Plaintiff was not 23 credible; and (3) failed to properly consider Plaintiff’s mother’s 24 testimony. 25 reversed and the case is remanded for further proceedings consistent 26 with this opinion. 27 28 He claims that the For the reasons discussed below, the Agency’s decision is 1 II. 2 SUMMARY OF PROCEEDINGS In December 2007, Plaintiff applied for SSI, alleging that he was 3 disabled due to depression, anxiety, mood disorder, anger issues, and 4 paranoia. 5 denied the application initially and on reconsideration. 6 Plaintiff then requested and was granted a hearing before an ALJ. 7 Plaintiff appeared with counsel and testified at the hearing on July 8 22, 2009. (AR 17-34.) The ALJ subsequently issued a decision denying 9 benefits. (AR 10-16.) Plaintiff appealed to the Appeals Council, 10 (Administrative Record (“AR”) 81-83, 90.) which denied review. (AR 4-6.) 11 12 13 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 14 disorder but was capable of performing a full range of work at all 15 levels, provided it did not involve the public and did not require 16 “intense interpersonal interactions with supervisors or co-workers.” 17 (AR 12.) 18 “Grids” and concluded that Plaintiff was not disabled. 19 Plaintiff argues that his limitations precluded the use of the Grids. 20 For the following reasons, the Court finds that it is not clear 21 whether the ALJ should have used the Grids and, therefore, remand is 22 warranted on this issue. 23 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 24 is not disabled. 20 C.F.R. Chapter III, Part 404, Subpart P, Appendix 25 2, § 200.00. 26 jobs that exist throughout the national economy for the various 27 functional levels of exertion, i.e., sedentary, light, medium, and 28 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 2 1 “completely and accurately represent a claimant’s limitations,” i.e., 2 the claimant is able to perform the “full range of jobs in a given 3 category”. 4 (emphasis in original). 5 has a severe, non-exertional limitation that would significantly limit 6 the range of work he could perform. 7 278 F.3d 947, 960 (9th Cir. 2002) (holding vocational expert must be 8 consulted when the Grids do not “adequately take into account 9 claimant’s abilities and limitations”). 10 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 11 jobs involving “non-public work with no intense interpersonal 12 interactions with supervisors or co-workers” precludes the use of the 13 Grids. 14 therefore, remand is required. 15 ALJ’s prohibition on jobs involving “intense interpersonal 16 interactions with supervisors or co-workers” means. 17 explain it and the Court does not find that this phrase has a common 18 or generally understood meaning. 19 gauge what impact if any such a restriction would have on the Grids 20 because it cannot discern the number of jobs that would be affected by 21 such a limitation. 22 included in the Grids that qualify as non-public jobs because there is 23 no breakdown between public and non-public jobs in the Grids. 24 clarity on these issues, the Court cannot determine whether the ALJ 25 erred or not. 26 further explain these limitations and the impact they do or do not 27 have on the Grids. 28 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, 3 See Hoopai v. Astrue, 1 499 F.3d 1071, 1076 (9th Cir. 2007) (explaining vocational expert 2 required when there are significant and sufficiently severe non- 3 exertional limitations not taken into account by the Grids). 4 The Agency disagrees. It argues that Plaintiff’s affective mood 5 disorder is akin to the claimant’s depression in Hoopai, where the 6 Ninth Circuit upheld the use of the Grids. 7 Court would agree to a certain extent that there are similarities. 8 The ALJ in the case at bar found that Plaintiff had no restrictions in 9 activities of daily living, no difficulties in concentration, 10 persistence, or pace, and only slight difficulties in social 11 functioning. 12 had moderate difficulties maintaining concentration, performing 13 activities within a schedule, and attending work. 14 1076-77. 15 restriction to non-public work and work not involving intense 16 interpersonal relationships, both of which the Court is unable to 17 quantify in terms of their impact on the Grids. 18 that the impact is non-quantifiable, can the Court conclude that the 19 error was harmless. 20 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 21 1 22 23 24 25 26 27 28 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...) 4 1 2 B. The ALJ’s Credibility Finding as to Plaintiff The ALJ found that Plaintiff was not credible. 3 that the ALJ erred in doing so. 4 Plaintiff argues For the following reasons, this argument is rejected. 5 Where, as here, a claimant produces objective medical evidence of 6 an impairment that reasonably could be expected to produce the alleged 7 symptoms, an ALJ must provide “specific, clear and convincing reasons” 8 to discount the claimant’s testimony. 9 1281 (9th Cir. 1996). Smolen v. Chater, 80 F.3d 1273, A fair reading of the ALJ’s decision 10 establishes that he rejected Plaintiff’s testimony because it was 11 contradicted by statements he had made to his treating doctors and 12 because it was inconsistent with the medical record. 13 ALJ also found that Plaintiff had at times exaggerated his symptoms 14 when discussing his condition with doctors. 15 legitimate reasons for questioning a claimant’s credibility. 16 Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (holding lack of 17 objective medical evidence to support claims is a factor ALJ can 18 consider in evaluating claimant’s testimony); Batson v. Comm’r, 359 19 F.3d 1190, 1196-97 (9th Cir. 2004) (holding “contradictions from [the 20 claimant’s] own testimony and the lack of objective medical evidence 21 supporting [his] claims,” among other things, justified the ALJ’s 22 adverse credibility determination). 23 record. 24 suicidal and afraid he might hurt someone. 25 when asked these same questions by treating doctors over the years, he (AR 13.) (AR 13.) These are all 28 See And they are supported by the Plaintiff testified at the administrative hearing that he was (AR 20-21, 23, 26.) 26 27 The 1 (...continued) records). Counsel is admonished to voice his concerns at the administrative level so that needless appeals can be avoided. 5 Yet, 1 consistently denied that this was the case.2 2 addition, generally speaking, the doctors who treated him described 3 his impairments as mild. 4 severe ailments Plaintiff described during the hearing. 5 Further, though Plaintiff testified that his medications caused 6 dizziness, drowsiness, and confusion, he consistently reported to his 7 doctors that he did not suffer side effects from his medications. 8 27, 214-16, 234-48.) 9 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 10 with her in an effort to persuade her that he was impaired. 11 94.) 12 credibility finding. 13 C. 14 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 15 questionnaires in which she set forth that Plaintiff suffered from 16 severe emotional/psychological problems that interfered with his 17 ability to function. 18 the administrative hearing. 19 of Plaintiff’s problems were the result of his medications. 20 32.) 21 records did not support her belief that Plaintiff’s problems were 22 caused by his medications. 23 testimony because, as Plaintiff’s mother, she presumably wanted to 24 help him and, in doing so, would be helping herself since she was 25 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 26 27 2 28 Plaintiff reported suicide ideation to his treating doctor on two occasions between August 2007 and April 2009. (AR 235, 237.) 6 1 rejecting the mother’s testimony for these reasons. 2 below, this issue does not warrant remand. 3 As explained In order to reject the mother’s testimony, the ALJ was only 4 required to set forth reasons that were germane to her testimony. 5 Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). 6 between the mother’s testimony and the medical record is a germane 7 reason for discounting her testimony, see Bayliss v. Barnhart, 427 8 F.3d 1211, 1218 (9th Cir. 2005) (citing Lewis), and is supported by 9 substantial evidence in the record. See The inconsistency Plaintiff’s doctors did not 10 attribute his condition or the manifestations of his condition to his 11 medications. 12 suffer any side effects from his medications, as did Plaintiff. 13 210-16, 227-48.) 14 mother’s testimony. In fact, they consistently reported that he did not (AR Thus, this was a valid reason for rejecting the 15 The ALJ’s second reason for questioning the mother’s testimony-- 16 that, as his mother, she was likely motivated to help him (AR 14)--is 17 a little trickier. 18 See, e.g., Romero v. Tansy, 46 F.3d 1024, 1030 (10th Cir. 1995) 19 (concluding alibi testimony by defendant’s family members is of 20 significantly less value than that of an objective witness); and see 21 Ninth Circuit Model Civil Jury Instruction No. 1.11, Credibility of 22 Witnesses (“In considering the testimony of any witness, you may take 23 into account: . . . (4) . . . any bias or prejudice . . . .”). 24 generally speaking, ALJs are entitled to employ ordinary credibility 25 evaluation techniques in evaluating a witness’s testimony. 26 F.3d at 1284. 27 consider the fact that the witness is the claimant’s mother in 28 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., 7 1 166 F.3d 1294, 1298 (9th Cir. 1999); and Smolen, 80 F.3d at 1289 (“The 2 fact that a lay witness is a family member cannot be a ground for 3 rejecting his or her testimony.”); but cf. Greger v. Barnhart, 464 4 F.3d 968, 972 (9th Cir. 2006) (upholding ALJ’s rejection of claimant’s 5 former girlfriend’s testimony based, in part, on fact she had a close 6 relationship with claimant and was possibly influenced by her desire 7 to help him). 8 or perceived bias stemming from the relationship between mother and 9 son in analyzing the mother’s testimony. 10 Thus, the ALJ erred when he took into account any real The ALJ also, however, considered the fact that Plaintiff’s 11 mother would benefit financially if Plaintiff received benefits 12 because Plaintiff lived with her and she supported him. 13 This may be a proper reason for questioning a witness’s credibility. 14 See, e.g., Valentine v. Comm’r Soc. Sec., 574 F.3d 685, 694 (9th Cir. 15 2009) (“[E]vidence that a specific spouse exaggerated a claimant’s 16 symptoms in order to get access to his disability benefits, as opposed 17 to being an ‘interested party’ in the abstract, might suffice to 18 reject that spouse’s testimony.”). 19 issue here, however, since the ALJ’s first reason–-that the mother’s 20 testimony was inconsistent with the medical record–-is enough to 21 support his finding that she was not credible. 22 v. Comm’r, Soc. Sec., 533 F.3d 1155, 1162-63 (9th Cir. 2008) (holding 23 reviewing court must determine whether remaining valid reason(s) for 24 ALJ’s questioning claimant’s credibility amounts to substantial 25 evidence). 26 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 27 28 8 1 IV. CONCLUSION 2 For the reasons set forth above, the Agency’s decision is 3 reversed and the case is remanded for further proceedings consistent 4 with this opinion.3 5 IT IS SO ORDERED. 6 DATED: February 6, 2012. 7 8 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 S:\PJW\Cases-Soc Sec\CHAVEZ, 312\MEMO OPINION AND ORDER.wpd 25 26 27 28 3 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. 9

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