Widle v. Commissioner of Social Security
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 5/2/18 RECOMMENDING that Plaintiff's motion for summary judgment 15 be granted; Cross-Motion for Summary Judgment 20 be denied and this matter be remanded for further proceedings. F&R referred to District Judge John A. Mendez. (Kaminski, H)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JEFFREY WILDE,
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Plaintiff,
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No. 2:16-CV-0952-JAM-CMK
vs.
FINDINGS AND RECOMMENDATIONS
COMMISSIONER OF SOCIAL
SECURITY,
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Defendant.
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Plaintiff, who is proceeding with retained counsel, brings this action under
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42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social Security.
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Pending before the court are plaintiff’s motion for summary judgment (Doc. 15) and defendant’s
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cross-motion for summary judgment (Doc. 20).
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I. PROCEDURAL HISTORY
Plaintiff applied for social security benefits on February 29, 2012. In the
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application, plaintiff claims that disability began on December 28, 2010. Plaintiff’s claim was
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initially denied. Following denial of reconsideration, plaintiff requested an administrative
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hearing, which was held on February 27, 2014, before Administrative Law Judge (“ALJ”) Carol
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A. Eckersen. In an August 4, 2014, decision, the ALJ concluded that plaintiff is not disabled
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based on the following relevant findings:
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1.
The claimant has the following severe impairment(s): ischemic heart
disease, chronic obstructive pulmonary disease, mild hip osteoarthritis,
lumbar degenerative disc disease, diabetes mellitus, and obesity;
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The claimant does not have an impairment or combination of impairments
that meets or medically equals an impairment listed in the regulations;
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The claimant has the following residual functional capacity: the claimant
can perform sedentary work; he can occasionally climb ramps or stairs,
stoop, kneel, crouch, and crawl; he can frequently balance; he should never
climb ladders and he should avoid concentrated exposure to cold, heat,
wetness and humidity, noise, vibration, fumes, odors, and hazards; the
claimant should have a sit/stand option to change position at the
workstation twice per hour and take normal breaks; and
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Considering the claimant’s age, education, work experience, residual
functional capacity, and vocational expert testimony, the claimant can
perform his past relevant work as a data entry clerk and a telephone
technician.
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After the Appeals Council declined review on March 17, 2016, this appeal followed.
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II. STANDARD OF REVIEW
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The court reviews the Commissioner’s final decision to determine whether it is:
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(1) based on proper legal standards; and (2) supported by substantial evidence in the record as a
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whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is
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more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521
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(9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to
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support a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole,
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including both the evidence that supports and detracts from the Commissioner’s conclusion, must
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be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones
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v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner’s
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decision simply by isolating a specific quantum of supporting evidence. See Hammock v.
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Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative
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findings, or if there is conflicting evidence supporting a particular finding, the finding of the
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Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).
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Therefore, where the evidence is susceptible to more than one rational interpretation, one of
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which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v.
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Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal
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standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th
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Cir. 1988).
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III. DISCUSSION
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In his motion for summary judgment, plaintiff argues: (1) the ALJ erred in
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rejecting his testimony and statements as not credible; and (2) the ALJ failed to correctly identify
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plaintiff’s past relevant work.
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A.
Credibility Finding
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The Commissioner determines whether a disability applicant is credible, and the
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court defers to the Commissioner’s discretion if the Commissioner used the proper process and
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provided proper reasons. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). An explicit
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credibility finding must be supported by specific, cogent reasons. See Rashad v. Sullivan, 903
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F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient. See Lester v. Chater, 81 F.3d
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821, 834 (9th Cir. 1995). Rather, the Commissioner must identify what testimony is not credible
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and what evidence undermines the testimony. See id. Moreover, unless there is affirmative
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evidence in the record of malingering, the Commissioner’s reasons for rejecting testimony as not
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credible must be “clear and convincing.” See id.; see also Carmickle v. Commissioner, 533 F.3d
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1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue, 504 F.3d 1028, 1936 (9th Cir. 2007),
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and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)).
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If there is objective medical evidence of an underlying impairment, the
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Commissioner may not discredit a claimant’s testimony as to the severity of symptoms merely
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because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d
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341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater:
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The claimant need not produce objective medical evidence of the
[symptom] itself, or the severity thereof. Nor must the claimant produce
objective medical evidence of the causal relationship between the
medically determinable impairment and the symptom. By requiring that
the medical impairment “could reasonably be expected to produce” pain or
another symptom, the Cotton test requires only that the causal relationship
be a reasonable inference, not a medically proven phenomenon.
80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in
Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)).
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The Commissioner may, however, consider the nature of the symptoms alleged,
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including aggravating factors, medication, treatment, and functional restrictions. See Bunnell,
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947 F.2d at 345-47. In weighing credibility, the Commissioner may also consider: (1) the
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claimant’s reputation for truthfulness, prior inconsistent statements, or other inconsistent
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testimony; (2) unexplained or inadequately explained failure to seek treatment or to follow a
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prescribed course of treatment; (3) the claimant’s daily activities; (4) work records; and (5)
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physician and third-party testimony about the nature, severity, and effect of symptoms. See
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Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the
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claimant cooperated during physical examinations or provided conflicting statements concerning
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drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the
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claimant testifies as to symptoms greater than would normally be produced by a given
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impairment, the ALJ may disbelieve that testimony provided specific findings are made. See
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Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)).
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Regarding reliance on a claimant’s daily activities to find testimony of disabling
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pain not credible, the Social Security Act does not require that disability claimants be utterly
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incapacitated. See Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989). The Ninth Circuit has
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repeatedly held that the
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does not . . .[necessarily] detract from her credibility as to her overall disability.” See Orn v.
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Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (quoting Vertigan v. Heller, 260 F.3d 1044, 1050 (9th
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Cir. 2001)); see also Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986) (observing that a
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claim of pain-induced disability is not necessarily gainsaid by a capacity to engage in periodic
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restricted travel); Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (concluding that the
“. . . mere fact that a plaintiff has carried out certain daily activities . . .
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claimant was entitled to benefits based on constant leg and back pain despite the claimant’s
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ability to cook meals and wash dishes); Fair, 885 F.2d at 603 (observing that “many home
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activities are not easily transferable to what may be the more grueling environment of the
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workplace, where it might be impossible to periodically rest or take medication”). Daily
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activities must be such that they show that the claimant is “. . .able to spend a substantial part of
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his day engaged in pursuits involving the performance of physical functions that are transferable
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to a work setting.” Fair, 885 F.2d at 603. The ALJ must make specific findings in this regard
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before relying on daily activities to find a claimant’s pain testimony not credible. See Burch v.
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Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).
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As to plaintiff’s credibility, the ALJ stated:
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The credibility of the claimant’s allegations regarding the severity of his
symptoms and limitations is diminished because those allegations are
greater than expected in light of the objective evidence of record. The
positive objective clinical and diagnostic findings since the alleged onset
date detailed above do not support more restrictive functional limitations
than those assessed herein. Specifically, the claimant continues to have
chest pain for which he takes Nitroglycerin weekly. He gets shortness of
breach and coughing, which is related to his COPD. Despite these
symptoms, he is able to take care of his own personal hygiene and keep
track of his own medications. He takes a long time to fall asleep but
sleeps for 10-12 hours a night and feels rested when he wakes up. He can
heat food in the microwave but only cleans a pan when he needs to use it
again. He cleans the bathroom but not much else because it is not
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comfortable to squat or reach due to back pain. He could grocery shop,
attends church twice a week for one hour each time, and does not have
difficulty getting along with others. He takes his dog to the park to let him
play every 2 weeks. He can sit for one hour, stand or walk for 30 minutes
with breaks, and can lift 6 pounds.
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Finally, as mentioned earlier, the record reflects work activity after the
alleged onset date. Although that work activity did not constitute
disqualifying substantial gainful activity, it does indicate that the
claimant’s daily activities have, at least at times, been somewhat greater
than the claimant has generally reported.
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Plaintiff argues that the ALJ’s analysis is legally insufficient because the ALJ
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does not state which specific portions of plaintiff’s testimony are undermined by the referenced
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portions of the medical record. The court agrees. As stated above, general findings are
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insufficient and the ALJ must identify what testimony is not credible and what evidence
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undermines the testimony. See Lester, 81 F.3d at 834; see also Garrison v. Colvin, 759 F.3d 995
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(9th Cir. 2014); Treichler v. Commissioner, 775 F.3d 1090 (9th Cir. 2014); Brown-Hunter v.
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Colvin, 806 F.3d 487 (9th Cir. 2015). In this case, the court has carefully reviewed the ALJ’s
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hearing decision and cannot find any references to plaintiff’s specific allegations or symptoms.
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Because the ALJ failed to identify plaintiff’s specific allegations, the court cannot say that the
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ALJ’s discussion of plaintiff’s credibility linked to any finding that any particular statement is
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not credible. The court is left to guess which of plaintiff’s symptoms allegations are undermined
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by the evidence discussed by the ALJ.
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The matter should be remanded for a new credibility finding.
B.
Vocational Finding
Defendant concedes that the ALJ erred in concluding that plaintiff could perform
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his past relevant work as a data entry clerk and a telephone technician because the vocational
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expert testified that a person with the residual functional capacity found by the ALJ could not do
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such work. Defendant, however, argues that the error is harmless because “there was substantial
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evidence in the record of other work Plaintiff could perform. . . .” In particular, defendant
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contends that the vocational expert testified that a hypothetical person with plaintiff’s residual
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functional capacity could perform the job of procurement clerk.
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The Ninth Circuit has applied harmless error analysis in social security cases in a
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number of contexts. For example, in Stout v. Commissioner of Social Security, 454 F.3d 1050
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(9th Cir. 2006), the court stated that the ALJ’s failure to consider uncontradicted lay witness
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testimony could only be considered harmless “. . . if no reasonable ALJ, when fully crediting the
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testimony, could have reached a different disability determination.” Id. at 1056; see also Robbins
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v. Social Security Administration, 466 F.3d 880, 885 (9th Cir. 2006) (citing Stout, 454 F.3d at
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1056). Similarly, in Batson v. Commissioner of Social Security, 359 F.3d 1190 (9th Cir. 2004),
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the court applied harmless error analysis to the ALJ’s failure to properly credit the claimant’s
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testimony. Specifically, the court held:
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However, in light of all the other reasons given by the ALJ for
Batson’s lack of credibility and his residual functional capacity, and in
light of the objective medical evidence on which the ALJ relied there was
substantial evidence supporting the ALJ’s decision. Any error the ALJ
may have committed in assuming that Batson was sitting while watching
television, to the extent that this bore on an assessment of ability to work,
was in our view harmless and does not negate the validity of the ALJ’s
ultimate conclusion that Batson’s testimony was not credible.
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Id. at 1197 (citing Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990)).
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In Curry, the Ninth Circuit applied the harmless error rule to the ALJ’s error with respect to the
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claimant’s age and education. The Ninth Circuit also considered harmless error in the context of
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the ALJ’s failure to provide legally sufficient reasons supported by the record for rejecting a
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medical opinion. See Widmark v. Barnhart, 454 F.3d 1063, 1069 n.4 (9th Cir. 2006).
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The harmless error standard was applied in Carmickle v. Commissioner, 533 F.3d
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1155 (9th Cir. 2008), to the ALJ’s analysis of a claimant’s credibility. Citing Batson, the court
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stated: “Because we conclude that . . . the ALJ’s reasons supporting his adverse credibility
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finding are invalid, we must determine whether the ALJ’s reliance on such reasons was harmless
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error.” See id. at 1162. The court articulated the difference between harmless error standards set
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forth in Stout and Batson as follows:
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. . . [T]he relevant inquiry [under the Batson standard] is not
whether the ALJ would have made a different decision absent any error. . .
it is whether the ALJ’s decision remains legally valid, despite such error.
In Batson, we concluded that the ALJ erred in relying on one of several
reasons in support of an adverse credibility determination, but that such
error did not affect the ALJ’s decision, and therefore was harmless,
because the ALJ’s remaining reasons and ultimate credibility
determination were adequately supported by substantial evidence in the
record. We never considered what the ALJ would do if directed to
reassess credibility on remand – we focused on whether the error impacted
the validity of the ALJ’s decision. Likewise, in Stout, after surveying our
precedent applying harmless error on social security cases, we concluded
that “in each case, the ALJ’s error . . . was inconsequential to the ultimate
nondisability determination.”
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Our specific holding in Stout does require the court to consider
whether the ALJ would have made a different decision, but significantly,
in that case the ALJ failed to provide any reasons for rejecting the
evidence at issue. There was simply nothing in the record for the court to
review to determine whether the ALJ’s decision was adequately supported.
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Carmickle, 533 F.3d at 1162-63 (emphasis in original; citations omitted).
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Thus, where the ALJ errs in not providing any reasons supporting a particular determination (i.e.,
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by failing to consider lay witness testimony), the Stout standard applies and the error is harmless
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if no reasonable ALJ could have reached a different conclusion had the error not occurred.
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Otherwise, where the ALJ provides analysis but some part of that analysis is flawed (i.e., some
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but not all of the reasons given for rejecting a claimant’s credibility are either legally insufficient
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or unsupported by the record), the Batson standard applies and any error is harmless if it is
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inconsequential to the ultimate decision because the ALJ’s disability determination nonetheless
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remains valid.
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The court cannot say that the ALJ’s vocational error was harmless. As discussed
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above, the ALJ’s credibility finding was not based on proper legal analysis. Absent this error, it
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is possible that the ALJ would have made a different residual functional capacity assessment
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which, in turn, would affect the vocational expert’s testimony that plaintiff could perform the job
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of procurement clerk. Applying the Stout standard, it is impossible to determine whether no
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reasonable ALJ could have reached a different conclusion had the vocational error not occurred
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because the credibility error infected the vocational expert’s testimony. Similarly, applying the
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Batson standard, the credibility error makes it impossible to determine whether the vocational
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error is inconsequential to the ultimate determination, again because the vocational expert’s
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testimony may have been undermined by a proper credibility analysis.
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IV. CONCLUSION
For the foregoing reasons, this matter should be remanded under sentence four of
42 U.S.C. § 405(g) for further development of the record and/or further findings addressing the
deficiencies noted above. Accordingly, the undersigned recommends that:
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Plaintiff’s motion for summary judgment (Doc. 15) be granted;
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Defendant’s cross motion for summary judgment (Doc. 20) be denied; and
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This matter be remanded for further proceedings.
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DATED: May 2, 2018
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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