Hughes v. Commissioner Social Security Administration
Filing
19
Opinion and Order - The Commissioner's decision that Mr. Hughes was not disabled between November 10, 2006 and June 25, 2008 is REVERSED and this case is REMANDED for further proceedings. Signed on 7/16/2014 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DOUGLAS HUGHES, JR.,
Plaintiff,
Case No. 3:13-cv-00480-SI
OPINION AND ORDER
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
James S. Coon, SWANSON, THOMAS, COON & NEWTON, 820 S.W. 2nd Avenue, Suite 200,
Portland, OR 97204. Of Attorneys for Plaintiff.
S. Amanda Marshall, United States Attorney, District of Oregon, Ronald K. Silver, Assistant
United States Attorney, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97201; Leisa A.
Wolf, Special Assistant United States Attorney, Office of the General Counsel, Social Security
Administration, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA 98104. Of Attorneys for
Defendant.
Michael H. Simon, District Judge.
Mr. Douglas Hughes, Jr. seeks judicial review of the final decision of the Commissioner
of the Social Security Administration (“Commissioner”) denying his application for disability
insurance benefits under Title II of the Social Security Act. For the following reasons, the
Commissioner’s decision is reversed and this case is remanded for further proceedings.
PAGE 1 – OPINION AND ORDER
BACKGROUND
A. The Application
Mr. Hughes was 52 years old when he originally applied for disability insurance benefits
in December of 2005, alleging an onset date of November 10, 2005. AR 22, 108, 125. He alleged
disability due to open heart surgery that resulted from an aortic aneurism. AR 125. The
Commissioner denied the claim initially and upon reconsiderations; thereafter, Mr. Hughes
requested a hearing before an Administrative Law Judge (“ALJ”). AR 16. In August 2009, the
ALJ issued a partially favorable decision, finding Mr. Hughes disabled beginning on June 26,
2008 (Mr. Hughes’ 55th birthday) under Medical Vocational Rule 202.06. The ALJ found that
Mr. Hughes failed to meet his burden of proving disability before June 26, 2008. AR 14-24. Mr.
Hughes appealed the ALJ’s decision to the district court, where the Commissioner conceded that
the ALJ had improperly rejected the testimony of lay witness Lorrayne Ellis. On May 2, 2012,
Judge Papak remanded the case for further proceedings so that the ALJ could reconsider the
written statement by Ms. Ellis. AR 722-38.
The ALJ held a remand hearing on December 12, 2012. AR 642-68. On January 11,
2013, the ALJ again issued a partially favorable decision finding Mr. Hughes disabled starting
June 26, 2008, but also finding that Mr. Hughes had failed to prove disability for the time
between November 10, 2005 and June 25, 2008. The Appeal’s Counsel denied Mr. Hughes’
request for review on February 23, 2011, making the ALJ’s decision the final decision of the
Commissioner. AR 3-5. Mr. Hughes now seeks judicial review of that decision.
B. The Sequential Analysis
A claimant is disabled if he or she is unable to “engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which . . . has lasted or
can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C.
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§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act.”
Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R.
§§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is
potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential
process asks the following series of questions:
1.
Is the claimant performing “substantial gainful activity?” 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing
such work, she is not disabled within the meaning of the Act. 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.
2.
Is the claimant’s impairment “severe” under the Commissioner’s
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment or combination of impairments is “severe” if it significantly
limits the claimant’s physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death,
this impairment must have lasted or be expected to last for a continuous
period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the
claimant does not have a severe impairment, the analysis ends. 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe
impairment, the analysis proceeds to step three.
3.
Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis continues. At that point, the ALJ must
evaluate medical and other relevant evidence to assess and determine the
claimant’s “residual functional capacity” (“RFC”). This is an assessment
of work-related activities that the claimant may still perform on a regular
and continuing basis, despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),
416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis
proceeds to step four.
PAGE 3 – OPINION AND ORDER
4.
Can the claimant perform his or her “past relevant work” with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform
his or her past relevant work, the analysis proceeds to step five.
5.
Considering the claimant’s RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is
not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),
404.1560(c), 416.960(c). If the claimant cannot perform such work, he or
she is disabled. Id.
See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953; see also
Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The
Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966
(describing “work which exists in the national economy”). If the Commissioner fails to meet this
burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however,
the Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54;
Tackett, 180 F.3d at 1099.
C. The ALJ’s Decision
The ALJ applied the sequential process is his decision issued on January 11, 2013. AR
675-83. At step one, the ALJ found that Mr. Hughes had not engaged in substantial gainful
activity since the date of his application. AR 675. At step two, the ALJ found that Mr. Hughes
suffered from the following severe impairments: “hypertension and status post ruptured thoracic
PAGE 4 – OPINION AND ORDER
aneurysm.” Id. At step three, the ALJ found that Mr. Hughes did not have an impairment or
combination of impairments that met or equaled the requirements of a listed impairment.
AR 676-77.
The ALJ then determined that Mr. Hughes has the residual functioning capacity (“RFC”)
to perform light work “except he cannot do any climbing other than the occasional climbing of
stairs.” AR 677. In reaching this conclusion, the ALJ considered Mr. Hughes’ symptom
testimony and the testimony of Mr. Hughes’ girlfriend Ms. Ellis, but found this testimony only
partially persuasive because both described activities of daily living that were partially
inconsistent with the symptom testimony.
Additionally, the ALJ considered the reports of Mr. Hughes’ primary care provider, a
treating physician who has treated Mr. Hughes since 2005 and who currently sees Mr. Hughes
once a month, the state agency physical consultants, and the state agency mental consultants. The
ALJ gave limited weight to the opinions of Mr. Hughes’ primary care provider, Dr. Michael
Booker, because his opinions were “quite conclusory, providing very little explanation of the
evidence relied on in forming [his] opinion.” AR 680. The ALJ gave the state physical
consultants some weight because their opinions were somewhat inconsistent with the medical
record as a whole. And finally, the ALJ gave the state mental consultants great weight because
their opinions were “consistent with the record.” AR 681.
At step four, the ALJ heard testimony from a vocation expert (“VE”), who testified that
an individual with like characteristics and impairments of the claimant (before reaching
advanced age on June 26, 2008) could perform work existing in significant numbers in the
national economy, specifically as a product sorter or as a packing line worker. Accordingly, the
ALJ concluded Plaintiff failed to establish disability before June 26, 2008. AR 682.
PAGE 5 – OPINION AND ORDER
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see
also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means
“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r Soc. Sec. Admin.,
554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th
Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).
Where the evidence is susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s
interpretation is a rational reading of the record, and this Court may not substitute its judgment
for that of the Commissioner. See Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190,
1193 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may
not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495
F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir.
2006) (quotation marks omitted)). A reviewing court, however, may not affirm the
Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554
F.3d at 1226.
DISCUSSION
A. Lay Witness Testimony
Mr. Hughes argues that the ALJ improperly discounted Ms. Ellis’ testimony, which
demonstrates the extent of Mr. Hughes’ disability between November 10, 2005 and June 26,
2008. Specifically, Mr. Hughes contends that the ALJ failed to give “germane reasons” for
PAGE 6 – OPINION AND ORDER
dismissing Ms. Ellis’ testimony. The Commissioner responds that the ALJ gave sufficiently
germane reasons to discount the testimony of Ms. Ellis and that the ALJ’s residual functional
capacity finding was supported by substantial evidence.
The ALJ has a duty to consider lay witness testimony. 20 C.F.R.§404.1513(d); Molina v.
Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012). Family members and friends in a position to
observe the claimant’s symptoms and daily activities are competent to testify regarding the
claimant’s condition. Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993). The ALJ may not
reject lay witness testimony “unless he or she expressly determines to disregard such testimony
and gives reasons germane to each witness for doing so.” Lewis v. Apfel, 236 F.3d 503, 511 (9th
Cir. 2001). The ALJ is not, however, required to address each witness on an “individualized
witness-by-witness basis” and may reject lay witness testimony that is predicated on reports of
the claimant when the claimant is properly found not credible. Molina, 674 F.3d at 1114; see
also Williamson v. Comm’r, 438 F. App’x 609, 611 (9th Cir. 2001). If, conversely, the ALJ finds
testimony credible, the ALJ errs by failing to incorporate the limitations found in that testimony
into the claimant’s RFC and any subsequent hypotheticals to the Vocational Expert (“VE”).
Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009) (reversing an ALJ determination that failed
to incorporate functional limitations described by the “generally credible” lay witness).
The record before the ALJ contains two written statements from Ms. Ellis. The first one,
submitted in 2006, provided several observations relevant to the severity of Mr. Hughes’
impairments and his daily activities. Ms. Ellis stated that “shortness of breath wakes [Mr.
Hughes] up” and that his “meds cause disorientation,” that “it takes [Mr. Hughes] a while to get
the energy to do anything and every task wears him out,” and that “he suffers from shortness of
breath when he walks, sits, or climbs stairs.” AR 151-55. Ms. Ellis further stated that Mr. Hughes
PAGE 7 – OPINION AND ORDER
could only walk three or four blocks before needing to stop and rest, and that he could only walk
this much once a day. AR 155.
Ms. Ellis’ second written statement was written and submitted in 2009 when the case was
on remand. In that statement, she provided details about Mr. Hughes’ condition in the months
after his aortic aneurism. She stated that the various blood pressure medications that the doctors
tried caused significant side effects. Mr. Hughes “was prescribed a medication that made his feet
swell so much that he could not wear shoes or walk and it knocked him out within an hour or so
of taking it.” AR 222. At this time, he could not walk very far away from the house and walking
even short distances “was very challenging” for Mr. Hughes. Id.
In Ms. Ellis’ 2009 statement, she also provided a description of how Mr. Hughes had
been “improving steadily” between 2005 and 2009. In 2009, Mr. Hughes had recovered and
improved to the extent that he could ride the bus alone, walk up to one mile twice a day, and
volunteer two hours per week at a local good co-op. Ms. Ellis, however, noted that even the
small effort that it takes to volunteer for two hours a week “exhausts him.” AR 223. Ms. Ellis
stated that Mr. Hughes applied for a vocational rehabilitation program after his original
application for social security disability benefits was denied. In 2006, the vocational
rehabilitation staff believed that there was nothing they could do to help Mr. Hughes find work,
and in 2009, when he contacted vocational rehabilitation again, they stated that they believed Mr.
Hughes’ disability had not improved enough for him to be employable. AR 223. She further
noted that the side effects of Mr. Hughes’ medicine still cause dizziness and zoning out. Id.
In the 2013 opinion, the ALJ summarized Ms. Ellis’ testimony as follows:
In October 2006, she felt he could lift only 15 pounds, yet in June
2009, she reported he has a lifting limit up to 40 pounds. In March
2006, she reported he walked every day and lifted weights. Then in
June 2009, she reported he takes two walks per day for one mile
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each as recommended by his doctor. She also reported he had been
improving and he could now leave home alone and can ride the bus
without her. She also noted he was named working member of the
year last year at his volunteer workplace because he was so
reliable. She stated he had applied for work and tried to follow
through with vocational rehabilitation, but he has not been able to
obtain work. Ms. Ellis also reported that claimant is able to cook,
watch television, read, grocery shop and do light household chores
such as loading and unloading the dishwasher and cleaning the
stove. She also noted he has no difficulties with his personal care
needs, he can ride a bike, and he plays the drums.
AR 679. The ALJ then evaluated Ms. Ellis’ testimony as follows:
Ms. Ellis is credible to the extent it is probable that she has reliably
reported her observations and what she has been told. However, as
discussed previously there are several reasons to question the
credibility of the claimant’s allegations. For the same reasons,
Ms. Ellis’ statements are of only partial value for arriving at a
determination of the claimant’s overall residual functional
capacity. Specifically, as already discussed, the claimant has been
able to remain significantly functional, especially in regard to his
activities of daily living. In fact, Ms. Ellis’ statements are fairly
consistent with the claimant’s reported activities of daily living and
confirm he is on the whole very active and independent. Overall,
her statements do not appear to support a conclusion the claimant
has limitations greater than those determined in this decision.
AR 680.
Although not explicitly stated, it appears that the ALJ discounted Ms. Ellis’ testimony on
two grounds. First, to the extent that her testimony was based on reports made by Mr. Hughes,
the ALJ discounted Ms. Ellis’ testimony because Mr. Hughes’ credibility was discounted for
various reasons1; and second, to the extent that Ms. Ellis’ testimony was based on her
observations of Mr. Hughes, the ALJ discounted Ms. Ellis’ testimony because her description of
1
The ALJ found Mr. Hughes’ report of his symptoms less than fully credible because his
reported activities of daily living suggested he was less impaired than he claimed and because he
had a history of noncompliance with medical treatment. AR 679.
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Mr. Hughes’ daily activities were inconsistent with the alleged severity of Mr. Hughes’
impairments and consistent with the ALJ’s RFC for Mr. Hughes.
The ALJ’s first reason for discounting Ms. Ellis’ testimony is a germane and legally valid
justification. The ALJ may properly reject lay witness testimony that is predicated on reports of
the claimant when the claimant is properly found not credible. Molina, 674 F.3d at 1114;
Williamson, 438 F. App’x at 611. On appeal, Mr. Hughes did not challenge the ALJ’s credibility
finding regarding Mr. Hughes. Therefore, to the extent that Ms. Ellis’ testimony was based on
reports by Mr. Hughes, the ALJ properly discounted this testimony.
Because Ms. Ellis lives with Mr. Hughes, and has lived with him for more than twenty
years, she is in a position to observe his symptoms and daily activities and is competent to testify
regarding these observations. See Dodrill, 12 F.3d at 918-19. Therefore, the ALJ cannot discount
the testimony of Ms. Ellis based purely on Mr. Hughes’ credibility. See id. The ALJ’s second
reason for discounting Ms. Ellis’ testimony is that her description of Mr. Hughes’ daily activities
is inconsistent with the alleged severity of Mr. Hughes’ impairments.
The ALJ cites the difference in Ms. Hughes’ testimony between 2006 and 2009, but fails
to take into consideration any improvement that might have occurred between those two dates. In
fact, each activity that the ALJ cites as evidence that Mr. Hughes was less disabled than he
claims comes from descriptions of his daily activities in 2009, a time after the contested period
of disability between 2005 and 2008. First, the ALJ points to the fact that Mr. Hughes can work
as a volunteer for two hours per week without breaks, a job that Mr. Hughes was not able to start
before 2008. Second, the ALJ points to the fact that Mr. Hughes can ride his bike for two and a
half miles, something that Mr. Hughes was not able to do in 2006. And finally, the ALJ points to
the fact that Mr. Hughes can lift 45 pounds, when in 2006 he was only able to lift 15 pounds.
PAGE 10 – OPINION AND ORDER
Because the period at issue in this appeal is November 10, 2005 through June 25, 2008, it
is important that the ALJ consider Mr. Hughes’ daily activities from the relevant time period to
determine Mr. Hughes’ RFC. Several sources in the record have testified that Mr. Hughes’
condition has slowly improved since his aortic aneurism in November 2005. AR 223, 577. The
ALJ himself references the differences between Ms. Ellis’ testimony describing Mr. Hughes in
2006 and 2009, but does not take this into consideration in the RFC or hypotheticals to the VE.
To discount Ms. Ellis’ testimony because her descriptions of Mr. Hughes’ daily activities in 2009
are inconsistent with the alleged severity of his impairment between 2005 and 2008 is not a
germane reason supported by evidence in the record. Because the ALJ found Ms. Ellis otherwise
credible, he must consider how her report of Mr. Hughes’ symptoms and daily activities in the
earlier time frame, before Mr. Hughes’ gradual improvement, affects the disability determination
for the period before June 26, 2008.
B. Credit as True Doctrine
The decision whether to remand for further proceedings or for immediate payment of
benefits is within the discretion of the court. Harman v. Apfel, 211 F.3d 1172, 1178 (9th
Cir. 2000), cert. denied, 531 U.S. 1038 (2000). The issue turns on the utility of further
proceedings. A remand for an award of benefits is appropriate when no useful purpose would be
served by further administrative proceedings or when the record has been fully developed and
the evidence is insufficient to support the Commissioner’s decision. Strauss v. Comm’r of Soc.
Sec. Admin., 635 F.3d 1135, 1137-38 (9th Cir. 2011) (quoting Benecke v. Barnhart, 379
F.3d 587, 593 (9th Cir. 2004)). The court may not award benefits punitively and must conduct a
“credit-as-true” analysis to determine if a claimant is disabled under the Act. Id. at 1138.
Under the “credit-as-true” doctrine, evidence should be credited and an immediate award
of benefits directed where: “(1) the ALJ has failed to provide legally sufficient reasons for
PAGE 11 – OPINION AND ORDER
rejecting such evidence; (2) there are no outstanding issues that must 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 were such evidence credited.” Id. (quotation marks and
citation omitted). The “credit-as-true” doctrine is not a mandatory rule in the Ninth Circuit, but
leaves the court flexibility in determining whether to enter an award of benefits upon reversing
the Commissioner’s decision. Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003). The
reviewing court should decline to credit testimony when “outstanding issues” remain. Luna v.
Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010).
In this case it is unclear whether incorporating Ms. Ellis’ testimony regarding her
observations of Mr. Hughes’ symptoms and daily activities in the period between November 10,
2005 and June 26, 2008 would require a finding of disability. Therefore, the Court remands the
case to the ALJ to determine, incorporating Ms. Ellis’ testimony regarding Mr. Hughes’
symptoms and daily activities during the relevant time frame into the RFC and hypotheticals to
the VE, whether Mr. Hughes’ condition between November 10, 2005 and June 25, 2008 was
disabling.
CONCLUSION
The Commissioner’s decision that Mr. Hughes was not disabled between November 10,
2006 and June 25, 2008 is REVERSED and this case is REMANDED for further proceedings.
IT IS SO ORDERED.
DATED this 16th day of July, 2014.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
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