Georgia Abraham v. Carolyn W Colvin

Filing 23

MEMORANDUM AND OPINION AND ORDER, by Magistrate Judge Patrick J. Walsh. the ALJs decision is reversed and the case is remanded to the Agency for further proceedings consistent with this Memorandum Opinion and Order. (See document for further details). (sbou)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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GEORGIA ABRAHAM,
Plaintiff,

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v.

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CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,

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Defendant.

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Case No. ED CV 13-0878-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 her application for

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Supplemental Security Income (“SSI”).

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Administrative Law Judge (“ALJ”) erred when he failed to consider the

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opinion of an examining psychiatrist and when he discounted

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Plaintiff’s testimony and the testimony of her husband and daughter.

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For the reasons explained below, the Court concludes that the ALJ

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erred and remands the case to the Agency for further proceedings.

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II.

She claims that the

SUMMARY OF PROCEEDINGS

In November 2008, Plaintiff applied for SSI, alleging that she
had been disabled since August 2006, due to bipolar disorder,

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depression, anxiety, and obsessive-compulsive disorder.

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tive Record (“AR”) 124, 125, 579-82.)

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initially and on reconsideration and she requested and was granted a

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hearing before an ALJ.

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testified at the hearing.

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a decision denying benefits.

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the Appeals Counsel, but her request was denied.

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commenced an action in this court.

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(Administra-

Her application was denied

In June 2010, she appeared with counsel and
(AR 24-57.)

In August 2010, the ALJ issued

(AR 7-20.)

She then sought review by
Thereafter, she

In 2012, the Court remanded the case to the Agency to allow it to

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reconsider the opinion of examining psychiatrist Ernest Bagner.

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remand, a different ALJ held a hearing in January 2013 and issued a

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decision, also concluding that Plaintiff was not disabled.

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415, 470-85.)

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denied review.

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parties subsequently stipulated to a remand because the Agency was

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unable to find the transcript from the January 2013 administrative

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hearing.

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75.)

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313-26.)

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review.

Plaintiff appealed to the Appeals Council, which again
She then filed a second action in this court.

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(AR 333-

On March 27, 2014, he issued a decision denying benefits.

(AR

Plaintiff appealed to the Appeals Council, which denied
Thereafter, she filed the instant action.
III.

A.

The

(AR 468.)

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(AR 376-

On February 12, 2014, a third ALJ held a third hearing.

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On

ANALYSIS

The ALJ’s Finding that Plaintiff was not Credible
In December 2008, Plaintiff filled out a form in which she

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explained that she suffered from crippling anxiety and fearfulness

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around people, would often forget what she was doing, and did not like

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to go far from home.

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was able to get her kids up, make breakfast for them, take them to

(AR 140, 144, 146.)

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She also reported that she

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school, do chores around the house (including laundry, washing floors,

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and cleaning the tub), walk outside, drive, handle money, and go to

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therapy once a week.

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physical limitations on the form.

(AR 139, 141-43, 145.)

She did not report any

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At the February 2014 administrative hearing, Plaintiff testified

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that she could not work because her medication made her sleepy, being

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around people made her anxious, and she suffered from bipolar

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episodes.

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lot of lifting because of her back and that she was no longer able to

(AR 348-49.)

She also testified that she could not do a

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help as much with her children or in cleaning the house as she had

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three or four years before.

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days she would be so depressed she did not go out or do anything.

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352-53.)

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(AR 350-51.)

She explained that on “bad”
(AR

The ALJ discounted this testimony because he believed it was

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inconsistent with the objective medical evidence and because

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Plaintiff’s daily activities suggested that she could work.

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For the following reasons, the Court concludes that the ALJ erred.

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(AR 321.)

ALJs are tasked with judging a claimant’s credibility.

Andrews

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v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

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rely on ordinary credibility techniques.

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1273, 1284 (9th Cir. 1996).

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malingering, however, ALJs can only reject a claimant’s testimony for

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specific, clear, and convincing reasons that are supported by

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substantial evidence in the record.

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1014-15 (9th Cir. 2014).

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In doing so, they can

Smolen v. Chater, 80 F.3d

Where there is no evidence of

Garrison v. Colvin, 759 F.3d 995,

The ALJ found that Plaintiff’s testimony was “inconsistent with

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the objective medical evidence.”

(AR 321.)

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reason for questioning a claimant’s testimony, see Rollins v. Massa3

Although this is a valid

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nari, 261 F.3d 853, 857 (9th Cir. 2001), the ALJ failed to explain

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what testimony he was referring to and how it was undermined by the

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objective medical evidence.

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evidence that followed suffice.

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See Brown-Hunter v. Colvin, __ F.3d ___, 2015 WL 4620123 (9th Cir.,

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Aug. 4, 2015) (reversing ALJ’s credibility finding because ALJ failed

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to explain what testimony was undermined by what evidence and ALJ’s

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discussion of the medical evidence that followed was not a substitute

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for that analysis).

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Nor did his analysis of the medical
As such, this reason is rejected.

The ALJ’s second reason for questioning Plaintiff’s claims of

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disabling impairment was that she could perform a number of daily

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activities despite her professed limitations such as cooking, doing

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laundry, driving, walking her children to school, and attending

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church.

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requirements needed to perform these activities “replicated those

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necessary for obtaining and maintaining employment.”

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(AR 321.)

The ALJ found that the physical and mental

The Court disagrees.

(AR 321.)

The activities as described by Plaintiff do

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not support the ALJ’s finding that they are transferable to a work

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setting, nor do they establish that she spends a “substantial” part of

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her day engaged in transferable skills.

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625, 639 (9th Cir. 2007).

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that she could not work at a job for eight hours a day because her

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medication made her too tired.

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did little more than oversee her children when they got ready for

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school and that they cleaned up after themselves.

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further testified that she did not go shopping on “bad” days and that

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she would typically go to get groceries at “4:00 in the morning,” when

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no one else was around.

See Orn v. Astrue, 495 F.3d

At the 2014 hearing, Plaintiff testified

(AR 350.)

(AR 352-53.)
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She also testified that she

(AR 351.)

She

The ALJ did not account for

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these comments in finding that Plaintiff’s daily activities would

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permit her to maintain regular employment.

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Because the ALJ’s credibility finding is not backed by specific

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and legitimate reasons that are supported by substantial evidence in

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the record, it is reversed.

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look at the credibility issue.1

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B.

On remand, the ALJ should take another

The Lay Witness Testimony

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1.

The Husband’s Testimony

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Plaintiff contends that the ALJ also erred in failing to properly

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consider her husband’s testimony.

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in June 2010, he testified that Plaintiff could not work because she

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was depressed, could not stay focused, was afraid to drive, did not

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sleep well at night, and was unable to leave the house due to her

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anxiety.

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testimony.

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Admin., 454 F.3d 1050, 1053-54 (9th Cir. 2006) (holding ALJ’s failure

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to address lay witness testimony is error).

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whether a reasonable ALJ would have found Plaintiff disabled after

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fully crediting the husband’s testimony.

(AR 47-48, 50-51, 52.)
This was error.

At the first administrative hearing

The ALJ failed to address this

See Stout v. Commissioner, Soc. Sec.

Moreover, it is not clear

Thus, the Court concludes

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Plaintiff asks the Court to credit her testimony as true and
order the Agency to award benefits. (Joint Stip. at 32.) The Court
recognizes that it has the power to do so and is aware that the case
has already been remanded twice--once by the Court and once by
stipulation of the parties. Nevertheless, it is not clear from the
record whether Plaintiff is disabled and, therefore, entitled to
benefits. See Garrison, 759 F.3d at 1020 (noting district court can
only remand for benefits when record has been fully developed, further
proceedings would serve no purpose, and ALJ would be required to find
claimant disabled on remand). Though the Court has overruled the
ALJ’s credibility finding, it has not concluded that Plaintiff is
credible. Rather, it has concluded that the ALJ did not cite
sufficient reasons for rejecting Plaintiff’s testimony and must take
another look at the issue on remand.
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that the error is not harmless.

See, e.g., Stout, 454 F.3d at 1053-54

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(holding failure to consider lay testimony not harmless unless it is

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clear that testimony would not impact disability decision).

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remand, the ALJ should consider the husband’s testimony.

On

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2.

The Daughter’s Testimony

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Plaintiff’s daughter completed a questionnaire in December 2008

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in which she reported that Plaintiff was able to look after the

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children, cook, and clean, but was not able to work or go to school.

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(AR 131-32.)

She also reported that Plaintiff would sometimes yell at

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people around her and was afraid to travel long distances.

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The ALJ rejected this testimony based on the fact that the daughter

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was not a medical professional, she was biased due to her relationship

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with Plaintiff, and her statements were not supported by the medical

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evidence.

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was a valid one, see Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th

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Cir. 2005), and is supported by some of the medical evidence.

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such, the ALJ did not err here.

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erred in discounting the daughter’s testimony, any error was harmless

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in that, even if the daughter’s statements were fully credited, no

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reasonable ALJ would have found Plaintiff disabled based on the

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daughter’s general observations about Plaintiff’s condition and her

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lay opinion that Plaintiff could not work as a result of her

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impairments.2

(AR 321.)

(AR 137.)

This last reason for discounting the testimony

As

Further, assuming that the ALJ had

Stout, 454 F.3d at 1053-54.

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The ALJ should not have presumed bias based on the fact that
Plaintiff and her daughter were related. Regennitter v. Comm'r Soc.
Sec., 166 F.3d 1294, 1298 (9th Cir. 1999). Nor should he have
dismissed the daughter’s testimony in toto because she was not a
medical professional. See Smith v. Bowen, 849 F.2d 1222, 1226 (9th
Cir. 1988).
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C.

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The Examining Opinion
Plaintiff contends that the ALJ erred by failing to properly

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consider the 2010 opinion of examining psychiatrist Ernest Bagner.

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Dr. Bagner opined that Plaintiff would have moderate-to-marked

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limitations in completing a normal work week.

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AR 275.)

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to the Agency on this issue and maintains that Dr. Bagner’s opinion

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has yet to be properly considered by the Agency.

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For the reasons set forth below, this issue is remanded for further

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consideration contingent on the ALJ’s finding regarding Plaintiff’s

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credibility.

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(Joint Stip. at 6-19;

Plaintiff notes that the Court previously remanded the case

(Joint Stip. at 7.)

The ALJ discounted Dr. Bagner’s opinion because: (1) he had not

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reviewed all the records; (2) his opinion was based on a single

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examination, and (3) his opinion was based in large measure on

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Plaintiff’s subjective complaints, which the ALJ discounted.

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the credibility issue to the ALJ for further consideration.

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the ALJ determine that Plaintiff is credible, he will need to reassess

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the medical evidence and determine whether the remaining reasons are

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enough to warrant discounting Dr. Bagner’s opinion.

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not do so.3

(AR 323-

For the reasons explained above, however, the Court is remanding
Should

If not, he need

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ALJs may reject a treating doctor’s opinion that is based on
the incredible claims of the claimant. Batson v. Comm’r Soc.
Security, 359 F.3d 1190, 1195 (9th Cir. 2004). A doctor’s opinion is
also subject to attack where the doctor failed to review objective
medical data and reports from other doctors. Bayliss, 427 F.2d at
1217. The fact that a doctor only saw a claimant once, however, is
generally not a sufficient reason to question the doctor’s opinion-particularly where, as here, the ALJ relied on a doctor who never
examined the claimant--though it can play a role in the ALJ’s
analysis. See Kezeli v. Astrue, 2012 WL 5929929, at *3 (C.D. Cal.
Nov. 26, 2012).
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IV.

CONCLUSION

For these reasons, the ALJ’s decision is reversed and the case is

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remanded to the Agency for further proceedings consistent with this

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Memorandum Opinion and Order.

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IT IS SO ORDERED.

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DATED: August 11, 2015.

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_______________________________
PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE

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