Lewis v. Astrue

Filing 29

ORDER accepting and adopting in full ECF No. 26 Report and Recommendation; granting Plaintiff's ECF No. 17 Motion to Remand; denying Defendant's ECF No. 19 Opposition and Cross-Motion to Affirm; remanding case to ALJ for further proceedings; directing Clerk to close case. Signed by Judge Miranda M. Du on 11/29/2016. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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BROCK KING LEWIS,

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v.

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CAROLYN W. COLVIN,
Commissioner of Social Security
Administration,
Defendant.

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Case No. 3:15-cv-00553-MMD-VPC
Plaintiff,

I.

BACKGROUND AND SUMMARY

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Before the Court is Magistrate Judge Valerie P. Cooke’s Report and

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Recommendation (“R&R”) (ECF No. 26) regarding Plaintiff Brock King Lewis’ Motion for

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Remand or Reversal of the Commissioner’s Decision (ECF No. 17) and Defendant

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Commissioner Carolyn W. Colvin’s (“the Commissioner”) Opposition and Cross-Motion to

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Affirm. (ECF Nos. 19.) The Court has reviewed the Commissioner’s objection (ECF No.

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27) and Lewis’ response (ECF No. 28). For the reasons discussed below, the Court adopts

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the R&R in full.

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The following relevant background facts are taken from the R&R. (ECF No. 26 at

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1-2.) Lewis protectively filed for Social Security Disability Insurance (“SSDI”) and

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Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act in

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November 2012 based on a disability he claims commenced in October 2009. After the

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Social

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reconsideration, Lewis appeared before an Administrative Law Judge (“ALJ”)

Security

Administration

denied

his

initial

application

and

request

for

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accompanied by his mother Marilyn King, who served as a non-attorney representative.

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The ALJ issued an opinion in August 2014 finding that Lewis was not disabled at any time

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between 2009 and that date. The Appeals Council denied Lewis review, and the ALJ’s

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decision became the final decision of the Commissioner.

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Lewis filed a complaint in this Court in November 2015. (ECF No. 1.) He filed a

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Motion for Remand or Reversal in May 2016. (ECF No. 17.) Shortly thereafter the

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Commissioner filed a Cross Motion to Affirm. (ECF No. 19.) On August 18, 2016,

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Magistrate Judge Cooke issued an R&R agreeing with Lewis in part, recommending that

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Lewis’ Motion be granted, the Commissioner’s Motion denied, and the case remanded to

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the ALJ for further proceedings. (ECF No. 26 at 20.)

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II.

LEGAL STANDARD

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Where a party

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timely objects to a magistrate judge’s report and recommendation, then the court is

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required to “make a de novo determination of those portions of the [report and

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recommendation] to which objection is made.” 28 U.S.C. § 636(b)(1). In light of the

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Commissioner’s objection, the Court engages in a de novo review of the two portions of

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the R&R relevant to the objection.

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Congress has provided a limited scope of judicial review of the Commissioner's

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decision to deny benefits under the Social Security Act. In reviewing findings of fact, the

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Court must determine whether the decision of the Commissioner is supported by

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substantial evidence. 42 U.S.C. § 405(g). “Substantial evidence is more than a mere

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scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind

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might accept as adequate to support a conclusion.” Gutierrez v. Comm’r Soc. Sec., 740

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F.3d 519, 522–23 (9th Cir. 2014) (quoting Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir.

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2012)). The Court must consider the entire record as a whole to determine whether

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substantial evidence exists, and must consider evidence that both supports and

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undermines the ALJ’s decision. Gutierrez, 740 F.3d at 523 (citation omitted). In weighing
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the evidence and making findings, the Commissioner must also apply the proper legal

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standards. Id. (citing Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir.

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2009); Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003)).

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III.

ANALYSIS

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The R&R finds that the ALJ erred by failing to base her conclusion at step three of

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the analysis — determining whether Lewis’ impairments corresponded to certain listed

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impairments — on substantial evidence, and further erred in explaining her adverse

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credibility determinations against King. According to the R&R, these errors require remand

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for further proceedings because the record does not clearly show whether Lewis is or is

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not entitled to benefits. (ECF No. 26 at 19.)

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The Commissioner argues that the ALJ did not err at step three of her analysis, and

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even if she did, any error was harmless and not a basis for remand. (ECF No. 27 at 2-3.)

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The Commissioner further argues that the ALJ’s credibility determinations were properly

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explained and supported. (Id. at 7.)

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A.

Step Three Conclusion

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To determine whether a claimant qualifies for SSDI and SSI, the Commissioner

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goes through a five step process. Relevant to this Order is step three, where the claimant’s

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impairment is compared to a list of impairments at 20 C.F.R. Pt. 404, Subpart P, Appendix

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1 (“List of Impairments”).

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Lewis argues that the ALJ erred in finding that his impairments do not meet the

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requirements of Listing 12.04. That listing provides that affective disorders,

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“[c]haracterized by a disturbance of mood, accompanied by a full or partial manic or

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depressive syndrome,” meet the required level of severity when the requirements in

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paragraphs A and B are satisfied, or when the requirements in paragraph C are satisfied.

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20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04.

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To meet the requirements of paragraph B, a claimant must show that his or her

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affective disorder results in at least two of the following: (1) marked restriction of activities

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of daily living; (2) marked difficulties in maintaining social functioning; (3) marked
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difficulties in maintaining concentration, persistence, or pace; or (4) repeated episodes of

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decompensation, each of extended duration. Id. at § 12.04(B). “Marked” means more than

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moderate but less than extreme. Id. at § 12.00(C)(3). “Episodes of decompensation” is

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defined as “exacerbations or temporary increases in symptoms or signs accompanied by

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a loss of adaptive functioning, as manifested by difficulties in performing activities of daily

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living, maintaining social relationships, or maintaining concentration, persistence, or

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pace.” Id. at § 12.00(C)(4).
To meet the requirements of paragraph C, a claimant must show a:

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Medically documented history of a chronic affective disorder of at least 2
years’ duration that has caused more than a minimal limitation of ability to
do basic work activities, with symptoms or signs currently attenuated by
medication or psychosocial support, and one of the following:

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1. Repeated episodes of decompensation, each of extended duration; or

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2. A residual disease process that has resulted in such marginal adjustment
that even a minimal increase in mental demands or change in the
environment would be predicted to cause the individual to
decompensate; or

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3. Current history of 1 or more years' inability to function outside a highly
supportive living arrangement, with an indication of continued need for
such an arrangement.
Id. at § 12.04(C).

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The ALJ decided that Lewis’ impairments do not equal the severity of the items in

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the List of Impairments. Among other things, the ALJ concluded that “the evidence does

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not show that the claimant has experienced any episodes of decompensation of extended

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duration,” nor any repeated episodes of decompensation. (AR at 23.) The R&R

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determined that it could not conclude the ALJ’s decision was supported by substantial

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evidence because the ALJ did not justify her decision with any reference to medical

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evidence or citations to the record. The R&R lists medical and non-medical evidence from

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the record that seems to support Lewis’ argument and concludes that it can neither

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determine that Lewis’ impairments are equivalent to the List of Impairments, nor that the

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ALJ based its decision on substantial evidence. The R&R therefore recommends remand

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for further proceedings to clarify and correct the decision as needed. (ECF No. 26 at 104

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12.) The Commissioner argues that the R&R is incorrect because the ALJ need not repeat

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a summary of evidence alongside every determination and, in any event, any error was

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harmless. (ECF No. 27 at 3.)

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The Court agrees with the R&R. The Commissioner is correct that the ALJ does

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not have to say magic words or endlessly repeat herself, but she is obligated to provide

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an explanation that a reviewing court, such as this one, can evaluate. In the absence of a

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sufficient explanation, a court may remand for clarification. See, e.g., Pinto v. Massanari,

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249 F.3d 840, 848 (9th Cir. 2001). For the reasons discussed in the R&R, the Court opts

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to remand.

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The Commissioner next argues that even if the ALJ did not explain her step three

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conclusion, her decision should still be affirmed because the error was harmless. The

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Commissioner argues that even if the ALJ were to reevaluate and change her opinion

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about whether Lewis’ impairments match the Listed Impairments, Lewis would still not be

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disabled because the ALJ found that he “had no marked restrictions, no residual disease

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process that had resulted in such marginal adjustment that even a minimal increase in

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mental demands or change in environment would be predicted to cause decompensation,

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and there was no current history of one or more years of inability to function outside a

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highly supportive living arrangement.” (ECF No. 27 at 6.) This argument is a misreading

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of §12.04(C), which requires only one of the three listed criteria in conjunction with a

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history of chronic affective disorder. The ALJ did not discuss whether the first portion of

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§12.04(c) was satisfied but concluded that none of the three additional criteria were. If,

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upon remand, the ALJ decides that Lewis did experience repeated episodes of

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decompensation, he may have satisfied the elements of paragraph C. Therefore, the error

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is not harmless and remand is not futile. Furthermore, as discussed below, the Court

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agrees with the R&R that the ALJ erred in rejecting portions of King’s testimony, and a

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reconsideration of that evidence may affect other portions of the step three analysis.

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B.

Credibility Determinations

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The ALJ is responsible for determining credibility. Meanel v. Apfel, 172 F.3d 1111,

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1113 (9th Cir. 1999). The ALJ may reject a third party's testimony upon giving a reason

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germane to that witness. Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007).

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Here, the ALJ discounted reports from King describing Lewis’ day-to-day

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functioning because “they were generally prefaced with ‘from our conversations . . .’

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indicating they were just subjective reports from the claimant.” (AR at 24.) The ALJ further

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discounted King’s testimony because King “rarely mentioned alcohol problems/treatment”

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which suggests “subjective advocacy rather than objective reliability.” (AR at 25-26.) The

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R&R found both of these reasons improper. (ECF No. 26 at 13-15.) The Commissioner

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argues that the ALJ’s interpretation was reasonable, and that the ALJ’s separate finding

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that Lewis’ testimony about his alcohol use was inconsistent and therefore affected his

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credibility, allows the ALJ to similarly discount King’s testimony without further explanation.

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(ECF No. 27 at 7-9.)

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The Court agrees with the R&R. The Ninth Circuit has recognized that lay testimony

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by family members, even when based on conversations with the claimant, may constitute

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probative evidence of disability. See Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993)

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(“Although eyewitnesses have to rely to some extent on communications with the claimant

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. . . friends and family members in a position to observe a claimant’s symptoms and daily

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activities are competent to testify as to her condition.”) Therefore, the ALJ’s first reason,

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which was based on the nature of the testimony rather than any reason germane to King

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herself, is improper.1 As for the second reason, while mischaracterizing or dismissing the

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importance of a claimant’s alcohol use is a legitimate reason for discounting testimony,

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the Court agrees with the R&R that it is not clear where and how King downplayed or

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ignored Lewis’ alcohol use in this case. The ALJ does not point to any specific examples

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Court also agrees with the R&R’s qualification that the ALJ acted properly in
disregarding any lay medical opinions offered by King.
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and, as the R&R correctly notes, King mentions Lewis’ history of alcohol use and

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Alcoholics Anonymous attendance repeatedly.

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Commissioner’s argument that the ALJ’s reasons for discounting Lewis’ testimony apply

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equally to King is unconvincing. The ALJ pointed to specific inconsistencies in the record

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that highlighted Lewis’ inconsistent statements about or descriptions of his alcohol use.

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(AR at 27). As the R&R points out, it is not clear that King made any similar misleading or

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inconsistent representations — in fact, she repeatedly discussed his alcoholism.

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Therefore, the Court agrees with the Magistrate Judge that the ALJ did not offer

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satisfactory reasons for discounting King’s testimony.

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IV.

(ECF No. 26 at 14-15.) The

CONCLUSION

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It is therefore ordered that the Report and Recommendation of Magistrate Judge

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Valerie P. Cooke (ECF No. 26) is accepted and adopted in full. Plaintiff’s Motion to

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Remand (ECF No. 17) is granted. Defendant Commissioner Carolyn W. Colvin’s

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Opposition and Cross-Motion to Affirm (ECF No. 19) is denied.

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This case is remanded to the ALJ for further proceedings. The Clerk is directed to
close this case.

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DATED THIS 29th day of November 2016.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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