Johnson v. Commissioner Social Security Administration

Filing 20

OPINION AND ORDER: The Commissioner's final decision denying benefits to plaintiff is REVERSED and REMANDED for further proceedings. Signed on 7/28/2010 by Judge Malcolm F. Marsh. (mr)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION GARY J. JOHNSON, v. Plaintiff, CV. 09-6097-MA OPINION AND ORDER

MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. D. JAMES TREE Tree Law Offices 3711 Englewood Avenue Yakima, WA 98902 Attorney for Plaintiff DWIGHT C. HOLTON United States Attorney District of Oregon ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, OR 97204-2902 TERRYE E. SHEA Special Assistant United States Attorney Assistant Regional Counsel Social Security Administration 701 5th Avenue, Suite 2900 M/S 901 Seattle, WA 98104-7075 Attorneys for Defendant

1 - OPINION AND ORDER

MARSH, Judge Plaintiff Gary J. Johnson seeks judicial review of the final decision of the Commissioner of Social Security denying his

application for supplemental security income (SSI) under Title XVI of the Social Security Act, 42 U.S.C §§ 1381-83f. jurisdiction pursuant to 42 U.S.C. § 405(g). This Court has

For the reasons that

follow, I REMAND the final decision of the Commissioner for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff was 37 years old at the time of the hearing, and has completed a general education diploma. janitorial building maintenance Plaintiff received some in 1997, and has

education

previously worked as a farm laborer, dishwasher, pizza delivery driver, fast food counter worker, and as a sander in a lumber mill. Plaintiff has a history of poly-substance abuse and was

incarcerated from approximately 1989 to 1998. Plaintiff filed his current application on January 6, 2005, alleging disability beginning on June 21, 2004, due to an affective mood disorder and an anxiety disorder.1
1

His claim was denied

Plaintiff filed an application for SSI benefits on January 31, 2001, alleging that he had been disabled since July 18, 2000, due to post traumatic stress disorder (PTSD) and an affective or mood disorder. The 2001 claim was denied initially, and plaintiff did not appeal. Plaintiff protectively filed for SSI benefits again on June 22, 2004, alleging disability beginning March 1, 2004, due to testicular cancer and nephrolithiasis (kidney stones). This claim also was denied 2 - OPINION AND ORDER

initially, and on reconsideration.

Plaintiff requested a hearing

before an administrative law judge (ALJ), which was held on May 15, 2008. Plaintiff, who was represented by an attorney, testified at A vocational expert (VE) also testified. At the

the hearing.

hearing, plaintiff requested that his 2004 claim be reopened, which the ALJ denied based on the unfavorable decision. The ALJ issued an adverse ruling on May 29, 2008. Plaintiff

filed a request for review, and submitted additional evidence from William Wright, a vocational expert. The Appeals Council

considered the additional information, and concluded that it did not provide a basis for changing the ALJ's decision. Therefore,

the Appeals Council denied the request for review, and the ALJ's decision became the final decision of the Commissioner. THE ALJ'S DISABILITY ANALYSIS The Commissioner has established a five-step sequential Bowen v. Each step

process for determining whether a person is disabled. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 416.920.

is potentially dispositive. The claimant bears the burden of proof at steps one through four. See Valentine v. Comm'r Soc. Sec.

Admin., 574 F.3d 685, 689 (9th Cir. 2009); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At step five, the burden shifts

to the Commissioner to show that the claimant can do other work initially and plaintiff did not seek an appeal.

3 - OPINION AND ORDER

which exists in the national economy. 1035, 1043 (9th Cir. 1995).

Andrews v. Shalala, 53 F.3d

At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since his alleged onset of disability. See 20 C.F.R. §§ 416.920(b), 416.971 et seq. At step two, the ALJ found that plaintiff had the following severe combination of impairments: poly-substance abuse,

depressive disorder, PTSD, history of testicular cancer, back pain, and irritable bowel syndrome. See 20 C.F.R. § 416.920(c).

At step three, the ALJ found that plaintiff's impairments, or combination of impairments did not meet or medically equal a listed impairment. See 20 C.F.R. §§ 416.920(d), 416.925, 416.926.

The ALJ assessed plaintiff with a residual functional capacity (RFC) to perform light work as defined in 20 C.F.R. § 416.967(b), and further limited to unskilled work with little public contact, brief social interactions with co-workers and supervisors are acceptable, but that plaintiff would work best alone. C.F.R. §§ 416.927, 416.929. At step four, the ALJ found plaintiff unable to perform any past relevant work. See 20 C.F.R. § 416.965. See 20

At step five, the ALJ concluded that considering plaintiff's age, education, work experience, and residual functional capacity, jobs exist in significant numbers in the national economy that the claimant can perform. 4 - OPINION AND ORDER See 20 C.F.R. §§ 416.960(c), 416.966.

ISSUES ON REVIEW On appeal to this court, plaintiff contends the ALJ committed several errors: (1) improperly assessed plaintiff's credibility; (2) improperly assessed the physician's opinions; (3) failed to assess the lay witness testimony; and (4) posed an inadequate hypothetical to the vocational expert. STANDARD OF REVIEW The district court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. 405(g); Andrews, 53 F.3d at 1039. standard of review. evidence means more 42 U.S.C. §

It is a highly deferential "Substantial less than a

Valentine, 574 F.3d at 689. than a mere scintilla but

preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Andrews, 53

F.3d at 1039; Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). The court must weigh all the evidence, whether it supports

or detracts from the Commissioner's decision. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision

must be upheld, if supported by inferences reasonably drawn from the record, and even if the evidence is susceptible to more than one rational interpretation. Tommasetti, 533 F.3d at 1038; Batson

v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). The court will not reverse an ALJ's decision for harmless error 5 - OPINION AND ORDER

where it is clear from the record that the ALJ's error was inconsequential to the ultimate nondisability determination. Tommasetti, 533 F.3d at 1038; Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir. 2006). DISCUSSION I. Plaintiff's Credibility. To determine whether a claimant's testimony regarding

subjective pain or symptoms is credible, an ALJ must perform two stages of analysis. 20 C.F.R. §§ 404.1529. The first stage is a

threshold test in which the claimant must produce objective medical evidence of an underlying impairment that could reasonably be expected to produce the symptoms alleged. Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991); Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). At the second stage of the credibility analysis,

absent affirmative evidence of malingering, the ALJ must provide clear and convincing reasons for discrediting the claimant's

testimony regarding the severity of the symptoms.

Carmickle v.

Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The

ALJ must make findings that are sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Thomas v. Barnhart, 278 F.3d

947, 958 (9th Cir. 2002); Tommasetti, 533 F.3d at 1039; Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). 6 - OPINION AND ORDER Factors the ALJ may

consider when making such credibility determinations include the objective medical evidence, the claimant's treatment history, the claimant's daily activities, inconsistencies in testimony,

effectiveness or adverse side effects of any pain medication, and relevant character evidence. Tommasetti, 533 F.3d at 1039;

Bunnell, 947 F.2d at 345-46. At the hearing, plaintiff testified that his testicular cancer diagnosis in 2004 was a turning point in his health. Plaintiff

stated that he was informed that his cancer may have spread to other organs, and that in December 2007 he learned that he had cancer in his remaining testicle. Plaintiff testified that

following his cancer surgery, he developed irritable bowel syndrome and lactose intolerance. Plaintiff also testified that a disc

problem in his back causes pain, but that his lack of health insurance prevents him from proceeding with surgery or physical therapy. At the hearing, plaintiff also described feelings of guilt, anxiety and depression, resulting in conflicts and anger toward others. Plaintiff testified that he has not consumed alcohol or

drugs since 1999. Plaintiff described his physical restrictions as limited to sitting for 15 to 30 minutes and standing for 30 minutes, that he is unable to walk on a decline, suffers chronic fatigue requiring him to lie down once per day, and increasing pain in his low back as the day continues. 7 - OPINION AND ORDER (Tr. 20.)

The ALJ concluded that plaintiff has medically determinable impairments that could reasonably be expected to produce some symptoms, but that plaintiff's statements concerning the intensity, persistence, and limiting effects were not entirely credible. Contrary to plaintiff's assertion, the ALJ pointed to specific record evidence undermining his subjective complaints. The ALJ

rejected plaintiff's allegation that his testicular cancer surgery forms the basis of his alleged health problems. For example, the

ALJ detailed evidence from Eugene Fuchs, M.D., plaintiff's treating physician for his testicular cancer, who opined on February 8, 2005, that plaintiff should have "no physical disability from the relatively minor surgical procedure" performed to remove the tumor on his right testicle in June 2004. (Tr. 277.) The ALJ discussed

that fortunately, plaintiff did not require chemotherapy following the procedure, and that all of plaintiff's laboratory work

indicates that he remains cancer free. (Tr. 269-73, 424-36.) As the ALJ noted, plaintiff's physicians informed plaintiff that his risk of recurrence was low. (Tr. 248.) record undercuts his When the claimant's own medical the ALJ may rely on that

assertions,

contradiction to discredit the claimant.

Morgan v. Comm'r Soc.

Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999); Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007), cert. denied, 522 U.S. 1141 (2008). Furthermore, despite plaintiff's positive prognosis, plaintiff sent a letter to the social security hearings office, dated 8 - OPINION AND ORDER

December 5, 2007, claiming that a tumor had been discovered in his remaining testicle the previous day, and that he was homeless and without money. (Tr. 215.) When the ALJ inquired about the letter

at the hearing, plaintiff claimed to be confused about what his doctors had informed him, yet admitted that the letter he sent was not true. (Tr. 539.) "Where, as here, the ALJ has made specific

findings justifying a decision to disbelieve an allegation . . . and those findings are supported by substantial evidence in the record, our role is not to second-guess that decision." Bowen, 885 F.2d 597, 604 (9th Cir. 1989). Fair v.

Accordingly, the ALJ

could properly discredit plaintiff's testimony concerning his alleged fear of returning testicular cancer. The ALJ also concluded that plaintiff's minimization about his drug and alcohol abuse relapses undermined his credibility. the hearing, plaintiff contended that he had not At used

methamphetamine or alcohol for eight years.

However, the ALJ

detailed an emergency room report on October 6, 2007, in which plaintiff sought care for "methamphetmine abuse." The ALJ

discussed that a urinalysis performed confirmed the presence of amphetamines and marijuana metabolites (THC). When asked about the 2007 emergency room visit, plaintiff explained that he permits drug users stay at his home, and that one individual had left behind a soda pop containing methamphetamine which plaintiff unwittingly consumed. (Tr. 553.) The ALJ found plaintiff's explanation to be

9 - OPINION AND ORDER

less than forthcoming, noting that plaintiff had not offered that explanation to the emergency room physicians at the time, and therefore discredited plaintiff on that basis. The ALJ also found plaintiff's use of medical marijuana also undermined his credibility. At the hearing, plaintiff testified

that he uses medical marijuana about once a week to stimulate his appetite and relieve nausea. decision, neither of However, as the ALJ discussed in his treating physicians have

plaintiff's

recommended medical marijuana.

Indeed, the ALJ noted that Samuel

G. Taylor, M.D., plaintiff's oncologist, stated that plaintiff "continues to take medical marijuana for reasons which are not quite clear to me." (Tr. 21, 416.) While plaintiff asserts that

the ALJ should not discredit plaintiff for admitting to medical marijuana use, I conclude that discrediting plaintiff for using medical marijuana where it has not prescribed by a health care provider is not erroneous. See Morgan, 169 F.3d at 600 (questions

of credibility are solely functions of the Commissioner). Likewise, the ALJ also discredited plaintiff for his

inconsistent explanations of his alcohol use.

At the hearing,

plaintiff asserted that he had not consumed alcohol since 1999. However, as the ALJ noted, plaintiff informed his treating

physician Dr. Taylor on August 22, 2006, that he drinks two beers every night to stimulate urination. (Tr. 21, 418.) When asked

about his report to Dr. Taylor at the hearing, plaintiff informed 10 - OPINION AND ORDER

the ALJ that he cannot afford alcohol, and that he only consumed "near beers." (Tr. 549.) The ALJ found plaintiff's statement

inconsistent because he had not offered that clarification to Dr. Talyor at the time. I agree with the ALJ that plaintiff's various

statements are not entirely consistent and that the ALJ could discredit plaintiff on that point. See Verduzzco v. Apfel, 188

F.3d 1087, 1090 (9th Cir. 1999)(inconsistent statements about alcohol use may be used to discredit testimony). Plaintiff argues that even if his testimony concerning his alcohol consumption is inconsistent, the ALJ should not use that information to discredit him because "there is no indication that [plaintiff's] impairments are caused or exacerbated by alcohol abuse." (Plaintiff's Memorandum of Support (#16), p. 17.) The inconsistencies between

Plaintiff's argument misses the mark.

plaintiff's hearing testimony and reports to his physicians pertain to plaintiff's veracity, not his functional capacities. It is well established that an ALJ may rely on ordinary techniques of

credibility evaluation, including the testimony of a claimant that appears less than candid. The ALJ also Smolen, 80 F.3d at 1281-82. that plaintiff's complaints of

discussed

disabling back pain were not supported by the medical evidence, noting that plaintiff's medical treatment has not focused on his alleged back pain, and that he has primarily followed conservative treatment through the use of muscle relaxers. (Tr. 21.) 11 - OPINION AND ORDER The ALJ's

assessment of plaintiff's back pain is supported by substantial evidence in the record. conservative testimony). I conclude that the untruthful letter in light of plaintiff's contrary medical record, multiple inconsistent statements about his drug and alcohol relapses, questionable medical marijuana use, and complaints of disabling back pain despite conservative treatment, when taken together, provide clear and convincing support, backed by substantial evidence, for the ALJ's adverse credibility finding. Tomasetti, 533 F.3d at 1039; Orteza, 50 F.3d at 750. II. Medical Evidence. To reject the uncontroverted opinion of a treating or treatment See Parra, may be used 481 F.3d at 751 (evidence of to discount a claimant's

examining physician, the ALJ must present clear and convincing reasons for doing so. Bayliss v. Barnhart, 427 F.3d 1211, 1216

(9th Cir. 2005); Rodriguez v. Bowen, 876 F.2d 759, 761-62 (9th Cir. 1989). If a treating or examining doctor's opinion is contradicted by another doctor's opinion, it may be rejected by specific and legitimate reasons. Bayliss, 427 F.3d at 1216. An ALJ can meet

this burden by providing a detailed summary of the facts and conflicting medical evidence, stating his own interpretation of that evidence, and making findings. Tommasetti, 533 F.3d at 1041; When

Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).

evaluating conflicting opinions, an ALJ is not required to accept 12 - OPINION AND ORDER

an opinion that is not supported by clinical findings, or is brief or conclusory. Id. An ALJ also may discount a physician's opinion

that is based on a claimant's discredited subjective complaints. Tommasetti, 533 F.3d at 1040. A. Dr. Alaimo.

Plaintiff alleges that the ALJ did not properly evaluate the opinion of Robert J. Alaimo, D.O., his treating physician since 2006. In a two-page report dated May 9, 2008, Dr. Alaimo stated

that he believed plaintiff would miss four days or more of work because of chronic Flexeril, pain, a and noted that plaintiff Although a had been

prescribed

muscle

relaxer.

treating

physician's opinion is generally afforded the greatest weight, it is not binding on the ALJ. Morgan, 169 F.3d at 600.

In the decision, the ALJ rejected the opinion of Dr. Alaimo because Dr. Alaimo had based his diagnosis of "lumbrosacral strain" on a positive straight leg test. The ALJ noted that a strain

typically resolves within months, and would not be a basis for disability, yet Dr. Alaimo asserted that plaintiff's condition has worsened since December 2006. A thorough review of the record reveals that the information provided by Dr. Alaimo is lacking. Although plaintiff asserts that he was seen by Dr. Alaimo seven times from December 2006 through April 2008, records from Dr. Alaimo consist solely of a two-page, fill-in-the-blank, check-the-box, report presented at the hearing. 13 - OPINION AND ORDER

(Tr. 526-27, 535.)

There are no underlying treatment records from Indeed, an ALJ may discredit that is brief, conclusory,

Dr. Alaimo contained in the record. a treating physician's opinion

unsupported by medical findings, or unsupported by the record as a whole. Batson, 359 F.3d at 1195; Thomas, 278 F.3d at 957; Given

Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001).

the brevity of the report and the lack of supporting evidence provided by plaintiff, I find that the ALJ has articulated specific and legitimate reasons for rejecting Dr. Alaimo's opinion. With respect to plaintiff's alleged back pain, plaintiff notes that Dr. Alaimo also offered a diagnosis of a herniated nucleus pulposus, which plaintiff asserts may take surgery to resolve. And, plaintiff complains that the ALJ rejected a notation from Jennifer Pflug, M.D., one of plaintiff's treating physicians, that plaintiff "may want to be seen by neurosurgery" because of a disc herniation based on a 2005 MRI. (Tr. 412.)

The ALJ dismissed Dr. Pflug's request for a consult because the ALJ did not see the 2005 MRI in the record. Nevertheless, the

ALJ assumed the veracity of the MRI and noted that plaintiff has not sought treatment for his alleged back impairment, maintaining a conservative course of treatment. (Tr. 21, 392.) Although the ALJ erroneously attributed Dr. Pflug's notation to Dr. Taylor, the results of the 2005 MRI do not lend any credence to Dr. Alaimo's opinion and clearly do not establish disability. 14 - OPINION AND ORDER

To be sure, the 2005 MRI results show a moderate disc protrusion at T9-10, in plaintiff's thoracic spine, and provides that "[i]t is difficult to determine whether there is cord compression present." (Tr. 392.) Plaintiff's current complaint, and that contained in

Dr. Alaimo's report, is that plaintiff suffers from chronic low back pain, normally referring to the lumbar region. Furthermore, as the ALJ correctly noted, there is no

indication that plaintiff obtained a neurosurgical consult.

And,

aside from Dr. Alaimo's two-page report and Dr. Pflug's comment about the MRI, plaintiff cites no other record evidence concerning plaintiff's alleged chronic low back pain. As the ALJ correctly

found, the medical record demonstrates that plaintiff's treatment since 2005 has focused on his cancer monitoring and his

gastrointestinal difficulties. Accordingly, I find no error in the ALJ's assessment of Dr. Alaimo's opinion. 1041; Thomas, 278 F.3d at 957. B. Dr. Lyon. Tommasetti, 533 F.3d at

Plaintiff also complains that the ALJ errroneously rejected the opinion of Lawrence J. Lyon, Ph.D., an examining psychologist. Dr. Lyon performed psychological evaluations in 2001 and 2005. In

May 2001, Dr. Lyon diagnosed PTSD, Major Depressive Disorder, Amphetamine Dependence in Sustained Full Remission, and Nicotine Dependence, and assigned a Gobal Assessment of Functioning (GAF) score of 40. (Tr. 228.) In a March 2005, Dr. Lyon again diagnosed

15 - OPINION AND ORDER

PTSD,

Major

Depressive

Disorder,

Amphetamine

Dependence

in

sustained full remission, Nicotine dependence, and a history of poly-substance abuse. Dr. Lyon again assigned a GAF of 40.

Plaintiff apparently relies upon the low GAF score as an indication of disability. Plaintiff claims that the ALJ's proffered reasons I agree.

for rejecting Dr. Lyon's opinion are insufficient.

In the instant proceeding, the ALJ noted that plaintiff was evaluated by Dr. Lyon shortly after his cancer treatment in 2004. While plaintiff's recent history of testicular cancer could account for a lower GAF score, this reason alone cannot suffice to discount Dr. Lyon's evaluation. The ALJ also rejected Dr. Lyon's opinion because it was based upon the mistaken belief that plaintiff's poly-substance abuse was in sustained full remission. However, as plaintiff correctly

highlights, the record supports plaintiff's assertion that he was in sustained full remission at the time of Dr. Lyon's March 2005 evaluation. As detailed above, the evidence concerning plaintiff's drug and alcohol use indicates relapses occurring in December and August 2006, and again in October 2007. Therefore, the ALJ should

not have discounted Dr. Lyon's opinion on this basis. The ALJ also rejected Dr. Lyon's opinion because he arrived at a GAF of 40, which may indicate a severe impairment, without

16 - OPINION AND ORDER

performing objective tests.2

Indeed, an ALJ need not accept an

examining physician's opinion if it is not supported by clinical findings. Thomas, 278 F.3d at 957. While the ALJ could discount

Dr. Lyon's evaluation for its lack of objective support, I conclude that the ALJ has failed to provide specific and legitimate reasons for rejecting it. Moreover, the ALJ has failed to provide an analysis of the conflicting evidence concerning plaintiff's alleged mental

impairments, and failed to make adequate findings. Magallanes, 881 F.2d at 751. The ALJ failed to discuss a separate evaluation

conducted by Jim Greenough, Ph.D., an examining psychologist, who conducted an evaluation in February 18, 2000. Dr. Greenough

performed numerous objective tests and diagnosed plaintiff with alcohol dependence in remission 47 days, and polysubstance abuse in remission for 47 days, and assigned a GAF score of 50. Additionally, information the in ALJ a failed to discuss Review conflicting Form

contained

Psychiatric

Technique

conducted by non-examining psychologist Frank Lahman, Ph.D., on June 20, 2001. Dr. Lahman diagnosed Major Depressive Disorder, Dr.

PTSD, and Amphetamine Dependence in sustained full remission.
2

Although an ALJ may reject an examining physician's opinion if it is based on a claimant's self-reports that have been properly discounted, here, the ALJ did not articulate that as a basis for rejecting Dr. Lyon's report. Indeed, a reviewing court may not rely upon reasoning the ALJ did not assert. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). 17 - OPINION AND ORDER

Lahman concluded that plaintiff suffered mild restrictions of daily living, and moderate difficulties in maintaining social functioning and maintaining concentration, persistence and pace, and

experienced no episodes of decompensation. (Tr. 240.) Despite this somewhat conflicting information from Dr.

Greenough and Dr. Lahman, the ALJ failed to offer an interpretation of that evidence. Therefore, the ALJ's rejection of Dr. Lyon's

opinion, and the ALJ's conclusion that plaintiff's alleged mental impairments are not disabling, are not supported by substantial evidence. 751. Nevertheless, even if Dr. Lyon's opinion is credited as true, the record is at best unclear as to whether plaintiff is disabled. Dr. Lyon's GAF score of 40 is only an estimate of plaintiff's overall level of functioning Diagnostic at & that time. See American of Mental It Tommasetti, 533 F.3d at 1041; Magallanes, 881 F.2d at

Psychiatric

Ass'n,

Statistical

Manual

Disorders 34 (4th ed. 1994, Text Revision 2000)(DSM IV-TR).

cannot serve as a substitute for the required objective medical evidence and work-related functional assessments needed to

establish disability under the Social Security Act. before me, there is no specific opinion from a

On the record treating or

examining physician as to any functional limitations resulting from plaintiff's alleged mental impairments which would preclude him from some form of substantial gainful activity. 18 - OPINION AND ORDER Yet, a GAF score

of 40 is indicative of some impairment in reality testing or communication, or a major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood. TR at 34; Bayliss, 427 F.3d at 1217. as to whether plaintiff is disabled. III. Lay Witness Testimony. Plaintiff contends that the ALJ erred in failing to account for the lay witness testimony from his wife, Angela Johnson. Lay DSM IV-

Thus, the record is unclear

witness testimony as to a claimant's symptoms or how an impairment affects his ability to work is competent evidence, which the ALJ must take into account. See Nguyen v. Chater, 100 F.3d 1462, 1467

(9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). The ALJ is required to account for competent lay witness

testimony, and if he rejects it, to provide germane reasons for doing so. Stout, 454 F.3d at 1055; Lewis v. Apfel, 236 F.3d 503,

511 (9th Cir. 2001). In this case, Mrs. Johnson submitted two third-party reports. The first report, dated March 7, 2001, was submitted in connection with an earlier filed SSI application, which was denied. March 2001 report, Mrs. Johnson describes plaintiff In the as very

sensitive, responding poorly to criticism, and easily losing his temper. (Tr. 92-103.) Mrs. Johnson also stated that plaintiff

takes no medication, needs no assistance with laundry, grooming, or

19 - OPINION AND ORDER

cooking, is involved with Narcotics Anonymous, and at that time, had been clean and sober for 14 months. (Tr. 111-12.)

Mrs. Johnson submitted a second report dated February 2005. In the 2005 report, Mrs. Johnson describes plaintiff as needing reminders to shave, eat, brush his teeth and take his medication. (Tr. 157.) Mrs. Johnson states that plaintiff cooks for himself,

assists with dishes, takes care of his pets, does laundry and yard work, but needs to rest after two hours of yard work. Mrs. Johnson

describes plaintiff as being unable lift more than 15 pounds, has difficulty kneeling, bending and squatting, and tires after walking two blocks. Similar to her 2001 report, Mrs. Johnson states that

plaintiff is difficult to be around, responds poorly to criticism, has difficulty working with the public and co-workers, and is unable to handle stress. suffers each morning Mrs. Johnson also reports that plaintiff vomiting or diarrhea caused by a

from

bacterial ulcer.

(Tr. 156-64.)

The ALJ wholly failed to discuss the either the March 2001 or February 2005 report from Mrs. Johnson. Therefore, the ALJ erred. Stout, 454 F.3d at 1055; Nguyen, 100 F.3d at 1467. Acknowledging this error, the Commissioner contends that any mistake in failing to address Mrs. Johnson's lay testimony amounted to harmless error, citing Stout, 454 F.3d at 1055. In Stout, the

Ninth Circuit concluded that an ALJ's failure to discuss competent lay testimony favorable to the claimant may constitute harmless 20 - OPINION AND ORDER

error if "it can confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different disability determination." Id. at 1056.

On the record before me, I cannot conclude that the failure to consider Mrs. Johnson's testimony was harmless. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006). ALJ's incomplete discussion of plaintiff's Robbins v. Soc. In light of the alleged mental

impairments, it is unclear whether Mrs. Johnson's description of plaintiff's difficulties working with co-workers, handling stress and working under supervision would have resulted in the same RFC or disability determination. Furthermore, it is unclear whether

Mrs. Johnson's testimony about plaintiff's vomiting and diarrhea would have supported any additional functional limitations. V. Vocational Expert Hypothetical. Plaintiff also challenges the ALJ's step five determination, alleging that the hypothetical posed to the vocational expert was inadequate. above. This argument is based upon the errors discussed

I conclude that because the ALJ erred in assessing the

medical evidence and the lay testimony, the hypothetical posed to the ALJ was legally inadequate. Robbins, 466 F.3d at 886;

Osenbrook v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001). Accordingly, the ALJ's step five determination is not supported by substantial evidence. Harman v. Apfel, 211 F.3d 1172, 1178 (9th

Cir.), cert. denied, 531 U.S. 1038 (2000). 21 - OPINION AND ORDER

Having concluded that the Commissioner's decision should be reversed, the next issue is whether to remand for an immediate award of benefits or for further proceedings. within the court's discretion. Id. This decision is

Whether the action should be remanded for an award of benefits or for further proceedings depends upon the utility of additional proceedings. Id. at 1179. A reviewing court should credit the

evidence and remand for a finding of disability and an award of benefits if: 1) the ALJ failed to provide legally sufficient reasons for rejecting the evidence; 2) there are no outstanding issues to be resolved before a determination of disability can be made; and 3) it is clear from the record that the ALJ would be required to find the claimant disabled if the evidence in question were credited. Id. at 1178; Smolen, 80 F.3d at 1292. If it is not

clear that the ALJ would be required to award benefits were the improperly rejected evidence credited, then the court has

discretion whether to credit the evidence. 876.

Connett, 340 F.3d at

Here, although the ALJ failed to provide legally adequate reasons for rejecting the opinion of Dr. Lyon concerning

plaintiff's alleged mental impairments, there is insufficient evidence in the record establishing disability on that basis. Even if Dr. Lyon's opinion is fully credited, he did not opine that plaintiff's mental impairments prohibit substantial gainful

22 - OPINION AND ORDER

activity. mental

Dr. Lyon assigned a GAF score indicating significant however, that evidence conflicts with other

problems,

evidence in the record. Therefore, this is an outstanding issue to be resolved on remand. See Bunnell v.Barnhart, 336 F.3d 1112, 1116 (9th Cir. 2003)(remanding case for further proceedings for

resolution of outstanding issues). Moreover, plaintiff complains that the RFC fails to account for his irritable bowel syndrome, but there is scant evidence of functional limitations arising from this condition. And, as

discussed above, it is not clear that the ALJ would be required to find plaintiff disabled if the testimony of Mrs. Johnson were credited. Id.

Accordingly, a remand for further proceedings is appropriate in this instance. Specifically, the Commissioner is instructed to

evaluate plaintiff's alleged mental impairments and assess whether plaintiff's irritable bowel syndrome or other digestive issues create any functional limitations. The Commissioner shall obtain

independent medical and psychological evaluations, or a functional capacity assessment, if necessary. The Commissioner shall consider lay testimony and reassess plaintiff's RFC in light of all the evidence. The Commissioner may take into account any other

appropriate factors that are already matters of record in making the disability determination. //// 23 - OPINION AND ORDER

CONCLUSION For the reasons stated above, the Commissioner's final

decision denying benefits to plaintiff is REVERSED and REMANDED for further proceedings. Section 406(b) of the Social Security Act "controls fees for representation [of Social Security Claimants] in court." Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002)(citing 20 C.F.R. §

404.1728(a)).

Under 42 U.S.C. § 406(b), "a court may allow 'a not in excess of 25 percent of Id. at 795

reasonable [attorneys'] fee . . .

the . . . past-due benefits awarded to the claimant." (quoting 42 U.S.C. § 406(b)(1)(A)).

Because § 406(b) does not

provide a time limit for filing applications for attorneys' fees and Federal Rule 54(d)(2)(B) is not practical in the context of Social Security sentence-four remands, Federal Rule of Civil

Procedure 60(b)(6) governs. J.)(issued June 30, 2008). 493, 505 (10th Cir. 2006). //// //// //// //// //// ////

Massett v. Astrue, 04-CV-1006 (Brown, See also McGraw v. Barnhart, 450 F.3d

24 - OPINION AND ORDER

To ensure that any future application for attorneys' fees under § 406(b) is filed "within a reasonable time" as required under Rule 60(b)(6), the Court orders as follows: If the

Commissioner finds plaintiff is disabled on remand and awards plaintiff past-due benefits and if, as a result, plaintiff intends to submit such application for attorneys' fees under § 406(b), plaintiff shall submit any such application within 60 days from the issuance of the Notice of Award by the Commissioner. IT IS SO ORDERED. DATED this _28_ day of JULY, 2010.

_/s/ Malcolm F. Marsh_______ Malcolm F. Marsh United States District Judge

25 - OPINION AND ORDER