Rivera v. Commissioner of Social Security
Filing
27
OPINION AND ORDER. Because I find that the ALJ rejected four lay witness statements for improper reasons, the final decision of the Commissioner is REVERSED and REMANDED for further proceedings. On remand, the ALJ shall reconsider the weight given to the lay statements, and, if necessary, revise the RFC and present an appropriate hypothetical to a vocational expert. Signed on 11/12/13 by Judge Michael W. Mosman. (dls)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
DENISE RIVERA,
No. 6:12-cv-02132-MO
Plaintiff,
OPINION AND ORDER
v.
CAROLYN W. COLVIN, acting
Commissioner of the Social
Security Administration,
Defendant.
MOSMAN, J.,
Plaintiff Denise Rivera filed a complaint [1] seeking review of the Commissioner’s
decision to deny her application for disability insurance benefits and supplemental security
income. Because I find that the ALJ gave improper reasons for discounting the statements of
four lay witnesses, I reverse the ALJ’s decision and remand the cause for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Denise Rivera applied for disability insurance benefits and supplemental security
income on May 13, 2009, alleging an onset date of November 24, 2008. (Tr. [14-6] at 139, 141.)
Her applications and requests for reconsideration were denied. (Tr. [14-5] at 89, 94, 100, 104.)
A hearing was held before Administrative Law Judge (“ALJ”) Riley Atkins on August 22, 2011.
(Tr. [14-3] at 60.)
1 – OPINION AND ORDER
At the hearing, Ms. Rivera testified that she suffers from pain that limits her activities.
Id. at 67. She described shooting pain that travels from her lower back into both legs. Id. She
takes ibuprofen to alleviate it. Id. at 72. Because of her pain, Ms. Rivera is able to sit only for
twenty to thirty minutes at a time, and for three hours in total in a typical day. Id.at 73–74. She
is able to stand or walk for fifteen minutes at a time, and for two to three hours total. Id. She can
lift no more than ten pounds, and cannot squat without experiencing pain in her ankles. Id. at 75.
She also testified that she uses an inhaler for breathing difficulties and takes medication for
varicose veins. Id. at 68–70.
Ms. Rivera keeps a part-time job doing “[l]ight housekeeping” for an elderly, disabled
client. Id. at 64–65. She makes the bed, sweeps, mops, does laundry, performs “[m]ail prep,”
manages medications, showers the client, and helps the client dress. Id. To accommodate her
pain-related limitations, Ms. Rivera’s client allows her to raise her legs when necessary, which
normally works out to a total of thirty to forty-five minutes in a four-hour period. Id. at 71. Her
client also allows her to use a walker to carry laundry. Id. at 75. In the past, Ms. Rivera once
worked at the state fair two or three hours per day for eight or nine days. Id. at 66.
In addition to her own testimony, Ms. Rivera submitted written statements from four lay
witnesses. These statements corroborated many of the pain-related limitations that Ms. Rivera
described.
The ALJ issued a decision concluding that Ms. Rivera is not disabled on August 31,
2011. Id. at 30. Based on her daily activities, lack of objective medical support, failure to seek
treatment, and drug-seeking behavior, the ALJ concluded that Ms. Rivera’s testimony had
“limited credibility.” Id. at 26–27. He rejected all four lay statements for lack of objective
2 – OPINION AND ORDER
support. Id.at 28. When the Appeals Council denied Ms. Rivera’s request for review, the ALJ’s
decision became the final decision of the Commissioner. Id. at 1.
Ms. Rivera filed a complaint [1] in this Court seeking review of the Commissioner’s
decision on November 21, 2012. On October 24, 2013, I heard oral argument [26] and took the
matter under advisement.
DISCUSSION
Ms. Rivera argues that the ALJ erred in two ways: in finding her testimony not credible,
and in discounting statements provided by four lay witnesses. As explained on the record at oral
argument, I hold that the ALJ did not err in assigning little weight to Ms. Rivera’s testimony, and
do not further discuss the matter here.
At oral argument, I set forth a tentative conclusion that the ALJ erred in rejecting the lay
witnesses’ statements merely because they lacked objective medical support. For the first time
in this action, the Commissioner argued that lack of objective support is no longer an improper
reason for discounting lay statements concerning claimants’ subjective symptoms. I took the
matter under advisement, and now hold that the ALJ erred in rejecting the lay statements for
mere lack of support in the medical record.
I.
Mere Lack of Objective Medical Support Is Not a Proper Reason for Discounting
Lay Witness Statements.
An ALJ may “properly discount[] lay testimony that conflicted with the available medical
evidence.” Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984). The Ninth Circuit has
repeatedly reiterated that inconsistency with the objective medical record is a proper reason for
discounting lay testimony regarding a claimant’s subjective symptoms. Bayliss v. Barnhart, 427
F.3d 1211, 1218 (9th Cir. 2005); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001).
3 – OPINION AND ORDER
Twelve years after Vincent, in Smolen v. Chater, 80 F.3d 1273 (9th Cir. 1996), the Ninth
Circuit concluded that an ALJ may not reject lay testimony regarding pain and other symptoms
merely because objective medical evidence failed to support them. Id. at 1288–89. It relied
upon SSR 88-13, 1988 WL 236011 (1988), which provides that
[w]hen the claimant indicates that pain is a significant factor of his/her alleged
inability to work, and the allegation is not supported by objective medical
evidence in the file, the adjudicator shall obtain detailed descriptions of daily
activities by directing specific inquiries about the pain and its effects to the
claimant, his/her physicians from whom medical evidence is being requested, and
other third parties who would be likely to have such knowledge.
Id. at *1. The Ninth Circuit interpreted this ruling to require the ALJ to consider lay statements
when the medical records do not support the reported severity of the claimant’s symptoms.
Smolen, 80 F.3d at 1289. The ALJ therefore could not reject lay testimony merely because it
was not supported by objective medical evidence. Id. The court recently reiterated this holding.
See Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009) (holding that an ALJ may not discount
“lay testimony as not supported by medical evidence in the record”).
Some courts have read the Vincent and Smolen lines to provide that an ALJ may reject
subjective reports that she finds are affirmatively inconsistent with medical evidence, and not
those that merely lack objective support. Atwood v. Astrue, 742 F. Supp. 2d 1146, 1151–52 (D.
Or. 2010); Matthews v. Astrue, No. 10-5496, 2011 WL 2940450 at *19 n.6 (W.D. Wash. June
17, 2011); Staley v. Astrue, No. 09-1424, 2010 WL 3230818 at *18–*19 (W.D. Wash. July 27,
2010).
4 – OPINION AND ORDER
Other courts have found that Vincent and Smolen are in conflict, apparently conflating the
absence of supporting medical evidence with the presence of contradictory medical evidence.
See Glover v. Astrue, 835 F. Supp. 2d 1003, 1009 (D. Or. 2011) (remarking on the apparent
conflict); Bolar v. Astrue, No. 10-1748, 2011 WL 5036826 at *4 (C.D. Cal. Oct. 24, 2011)
(reasoning that Vincent and Smolen leave it “unclear . . . whether an ALJ may summarily reject
lay testimony based on the fact that it is ‘not supported by the objective medical findings’”);
Bond v. Astrue, No. 10-106, 2010 WL 4272870 at *1 (C.D. Cal. Oct. 25, 2010) (reasoning that
Smolen contradicts Vincent); Seaman v. Astrue, No. 09-5353, 2010 WL 1980331 at *7 (W.D.
Wash. Apr. 19, 2010) (same); Cook v. Astrue, No. 08-636, 2010 WL 729414 at *12 (D. Ariz.
Mar. 1, 2010) (conflating “lack of medical evidence supporting a lay statement” with
“inconsistency with medical records”). Two of these courts resolved the apparent conflict by
favoring the Vincent line and concluding that mere lack of objective support is a proper reason
for discounting lay statements. Glover, 835 F. Supp. 2d at 1012; Bond, 2010 WL 4272870 at *2.
In reaching this conclusion, the district courts in Glover and Bond noted that the
Commissioner long ago rescinded the agency ruling supporting the Ninth Circuit’s decision in
Smolen. 835 F. Supp. 2d at 1011; 2010 WL 4272870 at *2. The ruling, SSR 88-13, was
superseded by SSR 95-5p, 1995 WL 670415 (1995). Glover and Bond observe that SSR 95-5p
contains no directives concerning the weighing of lay testimony. Glover, 835 F. Supp. 2d at
1011–12; Bond, 2010 WL 4272870 at *2. They note also that the agency regulations concerning
reports of pain and other subjective symptoms, 20 C.F.R. §§ 404.1529(c)(3), (c)(4),
416.929(c)(3), (c)(4), draw no distinction between lack of objective support and affirmative
inconsistency with objective evidence. Id. Accordingly, these courts concluded that the agency
law that formed the basis of the Smolen decision is no longer in effect.
5 – OPINION AND ORDER
At oral argument on Ms. Rivera’s complaint, the Commissioner relied on these cases to
argue that mere lack of objective support is no longer categorically an improper reason to
discount lay testimony in the Ninth Circuit. I disagree for two reasons. First, the notion that
agency rulings no longer support the Smolen line of decisions is not correct. Second, the nature
of subjective symptoms requires that courts recognize a distinction between affirmative
contradiction with the medical record and mere lack of support within it.
Each of the district courts who found the Vincent and Smolen lines in conflict overlooked
SSR 96-7p, 1996 WL 374186 (1996). 1 SSR 96-7p superseded SSR 95-5p a year after the earlier
ruling’s issuance. Id. It provides that “allegations concerning the intensity and persistence of
pain or other symptoms may not be disregarded solely because they are not substantiated by
objective medical evidence.” Id. at *1. This is precisely the holding of the Smolen line.
More importantly, given the nature of subjective symptoms, courts should not conflate
lack of objective medical support and affirmative inconsistency with the medical record.
Subjective symptoms “sometimes suggest a greater severity of impairment than can be shown by
objective medical evidence alone.” Id. As long as those symptoms could reasonably be
expected to result from an impairment supported by objective medical evidence, Tommasetti v.
Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008), the ALJ should reject reports of their severity based
only on affirmative contradictory evidence in the medical record, not absence of supporting
evidence. In other words, where subjective symptoms are concerned, absence of evidence is not
evidence of absence. I hold that lack of objective medical support is not a proper reason for
discounting lay witness reports of a claimant’s pain and other subjective symptoms.
1
The court noted in Glover that SSR 96-7p superseded SSR 95-5p, but did not discuss any of its provisions. 835 F.
Supp. 2d at 1008 n.2.
6 – OPINION AND ORDER
II.
The ALJ Improperly Discounted the Lay Witnesses’ Statements for Lack of
Objective Support.
The ALJ must consider all evidence of the severity of a claimant’s impairments,
including the observations of other persons. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). “Lay
testimony as to a claimant's symptoms or how an impairment affects the claimant's ability to
work is competent evidence that the ALJ must take into account.” Molina v. Astrue, 674 F.3d
1104, 1114 (9th Cir. 2012). When an ALJ discounts lay witnesses’ testimony, he must “give
reasons that are germane to each witness.” Valentine v. Comm’r, 574 F.3d 685, 694 (9th Cir.
2009). The ALJ must not reject a lay witness’s subjective report merely because it is not
corroborated by objective medical evidence. Bruce, 557 F.3d at 1116. Affirmative
inconsistencies between subjective reports and objective evidence, on the other hand, are a
permissible basis for doing so. 20 C.F.R. §§ 404.1529(c)(4), 416.929(c)(4); Bayliss, 427 F.3d at
1218.
An ALJ need not “clearly link” her rejection of lay testimony to specific reasons, as long
as the reasons are “arguably germane” and she noted them elsewhere in her decision. See Lewis,
236 F.3d at 511–12. In Lewis, the ALJ rejected testimony by the claimant’s family members as
contrary to “documented medical history and findings and prior record statements” without
further explanation. Id. at 511. The Ninth Circuit held that this was not error, because the ALJ
had explained the contradictory medical evidence and statements elsewhere in the decision. Id.
at 512.
Ms. Rivera submitted four lay witness statements: one from her in-home care client,
Starla Campbell, and one each from three friends, Carol Bennett, Narissa Wickersham, and
Lorrie Hancock. (Tr. [14-7] at 193, 228, 230, 232.) Ms. Campbell confirmed that she allows
Ms. Rivera to adjust her tasks in order to accommodate her limitations, such as by using a walker
7 – OPINION AND ORDER
to carry laundry. Id. at 228. Ms. Bennett recited that Ms. Rivera’s back problems prevent her
from lifting more than ten pounds. Id. at 230. Ms. Wickersham also affirmed Ms. Rivera’s
inability to lift heavy objects without assistance. Id. at 232. Ms. Hancock completed a Third
Party Function Report, noting that Ms. Rivera is no longer able to dance, to squat or kneel, or to
lift more than five pounds. Id. at 197–98.
The ALJ found the statements of each of these witnesses “credible to the extent reports of
what has been said and heard are accurate.” (Tr. [14-3] at 28.) However, he rejected each of
their accounts of the extent of Ms. Rivera’s symptoms for a single, common reason: “the medical
evidence does not support the alleged degree of limitation.” Id.
Ms. Rivera asserts that the ALJ erred in rejecting the lay witnesses’ statements solely
because they lacked support in the objective medical evidence. (Pl.’s Brief [15] at 20–21.) The
Commissioner rejoins that the ALJ’s decision should be read to conclude that the medical
evidence contradicted the lay witnesses’ observations. (Def.’s Brief [17] at 15.) She argues that,
as in Lewis, the ALJ’s statement that the medical evidence does not support the lay witnesses’
reports is explained by his earlier discussion of the medical record. Id.
I conclude that the ALJ erred in rejecting the lay witnesses’ statements. Unlike in Lewis,
where the ALJ said that the medical record contradicted lay witness observations but failed to
recapitulate those contradictions, the ALJ here gave lack of support as his reason for rejecting the
statements. The decision cannot reasonably be read otherwise.
This error is not harmless. The ALJ’s only other reason for failing to credit Ms. Rivera’s
full range of reported limitations is his adverse credibility finding. The lay witnesses’ statements
are based on their own observations, not Ms. Rivera’s subjective reports. These statements may
establish that Ms. Rivera is disabled even if Ms. Rivera’s testimony is rejected entirely.
8 – OPINION AND ORDER
III.
Remand for Further Proceedings Is Appropriate.
A court should remand for award of benefits “where the record has been fully developed
and where further administrative proceedings would serve no useful purpose.” Smolen, 80 F.3d
at 1292. Where the ALJ has erroneously rejected evidence, a court should credit that evidence
and direct the Commissioner to award benefits where “(1) the ALJ has failed to provide legally
sufficient reasons for 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.
Otherwise, the court should remand for further proceedings.
The first element is met here. The ALJ gave legally insufficient reasons for rejecting the
four lay statements that Ms. Rivera submitted, and the error is not harmless. The second and
third elements are not met, however. Though lack of objective support was an improper reason
for rejecting the lay statements, other, proper reasons may exist. Whether the lay statements are
credible is therefore an issue that remains to be resolved. Further, were the lay statements
credited, the only necessary change to the ALJ’s analysis would be to revise the RFC such that
Ms. Rivera would never be required to lift more than ten pounds. Further vocational expert
testimony is needed to determine whether a person with such a limitation could compete in the
labor market. The record therefore would not conclusively establish that Ms. Rivera is entitled
to benefits even if the lay statements were credited.
9 – OPINION AND ORDER
CONCLUSION
Because I find that the ALJ rejected four lay witness statements for improper reasons, the
final decision of the Commissioner is REVERSED and REMANDED for further proceedings.
On remand, the ALJ shall reconsider the weight given to the lay statements, and, if necessary,
revise the RFC and present an appropriate hypothetical to a vocational expert.
IT IS SO ORDERED.
DATED this
12th
day of November, 2013.
/s/ Michael W. Mosman
MICHAEL W. MOSMAN
United States District Judge
10 – OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?