Romero v. Commissioner Social Security Administration

Filing 20

Opinion and Order signed on 9/25/2014 by Judge Ancer L. Haggerty. The decision of the Acting Commissioner denying Gabriela Romero's applications for DIB and SSI must be REVERSED AND REMANDED FOR FURTHER PROCEEDINGS. (sp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION

GABRIELA ROMERO,
Plaintiff,

Case No. 6:13-cv-00631-HA
OPINION AND ORDER

v.
COMMISSIONER SOCIAL
SECURITY ADMINISTRATION,
Defendant.

HAGGERTY, District Judge:
Plaintiff Gabriela Romero seeks judicial review of a final decision by the Acting
Commissioner of the Social Security Administration denying her applications for Supplemental
Security Income (SS!) and Disability Insurance Benefits (DIB). This court has jurisdiction to
review the Acting Commissioner's decision under 42 U.S.C. § 405(g). After reviewing the
record, this court concludes that the Acting Commissioner's decision must be REVERSED and .
REMANDED for further proceedings.
OPINION AL'ID ORDER - 1

STANDARDS
A claimant is considered "disabled" under the Social Security Act if: (1) he or she is
unable to engage in any substantial gainful activity (SGA) "by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve months," and
(2) the impairment is "of such severity that [she] is not only unable to do [her] previous work but
cannot, considering [her] age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy." Hill v. Astrue, 688 F.3d 1144,
1149-50 (9th Cir. 2012) (citing 42 U.S.C. § 1382c(a)(3); Tackett v. Apfel, 180 F.3d 1094, 1098
(9th Cir. 1999)); 42 U.S.C. § 423(d)(l)(A).
The Commissioner has established a five-step sequential evaluation process for
determining ifa person is eligible for benefits. 20 C.F.R. §§ 404.1520(a), 416.920(a). In steps
one through four, the Commissioner must determine whether the claimant (1) has not engaged in
SGA since his or her alleged disability onset date; (2) suffers from severe physical or mental
impairments; (3) has severe impahments that meet or medically equal any of the listed
impairments that automatically qualify as disabilities under the Social Security Act; and (4) has a
residual functional capacity (RFC) that prevents the claimant from performing his or her past
relevant work. Id. An RFC is the most an individual can do in a work setting despite the total
limiting effects of all his or her impahments. 20 C.F.R. §§ 404.1545(a)(l), 416.945(a)(l), and
Social Security Ruling (SSR) 96-Sp. The claimant bears the burden of proof in the first four
steps to establish his or her disability.
At the fifth step, however, the burden shifts to the Commissioner to show that jobs exist
OPINION AND ORDER - 2

in a significant number in the national economy that the claimant can perform given his or her
RFC, age, education, and work experience. Gomez v. Chafer, 74 F.3d 967, 970 (9th Cir. 1996).

If the Commissioner cannot meet this burden, the claimant is considered disabled for purposes of
awarding benefits. 20 C.F.R. §§ 404.1520(£)(1), 416.920(a). On the other hand, ifthe
Commissioner can meet its burden, the claimant is deemed to be not disabled for purposes of
determining benefits eligibility. Id.
The Commissioner's decision must be affirmed if it is based on the proper legal standards
and its findings are suppo1ied by substantial evidence in the record as a whole. 42 U.S.C. §
405(g); Tackett, 180 F.3d at 1097; Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
Substantial evidence is more than a scintilla but less than a preponderance; it is "such relevant
evidence as a reasonable mind might accept as adequate to supp01i a conclusion." Sandgathe v.

Chater, 108 F.3d 978, 980 (9th Cir. 1997) (citation omitted).
When reviewing the decision, the court must weigh all of the evidence, whether it
supports or detracts from the Commissioner's decision. Tacket/, 180 F.3d at 1098. The
Commissioner, not the reviewing comi, must resolve conflicts in the evidence, and the
Commissioner's decision must be upheld in instances where the evidence supports either
outcome. Reddickv. Chafer, 157 F.3d 715, 720-21 (9th Cir. 1998). If, however, the
Commissioner did not apply the proper legal standards in weighing the evidence and making the
decision, the decision must be set aside. Id. at 720.

BACKGROUND
Plaintiff was born in 1988 and was twenty-one years old at the time of her alleged
disability onset date. She protectively filed her applications for Title II and Title XVI disability
benefits on March 15, 2010, alleging an onset date ofNovember 30, 2009. Plaintiffs alleged
OPINION AND ORDER - 3

disability was based on a number of mental impairments, including: Bipolar Type I, anxiety,
agoraphobia, depression and insomnia. Plaintiff met the insured status requirements of the
Social Security Act through June 30, 2011. Plaintiff's applications were denied initially and upon
reconsideration. An Administrative Law Judge (ALJ) conducted a hearing on Janumy 10, 2012.
The ALJ heard testimony from plaintiff, plaintiff's mother, and an impmiial vocational expert
(VE). On Janumy 13, 2012, the ALJ issued a decision finding that plaintiff was not disabled as
defined under the Social Security Act.
At step one, the ALJ found that plaintiff had not engaged in SGA since November 30,
2009. Tr. 26, Finding 2. 1 At step two, the ALJ found that plaintiff suffered from the severe
impainnent of bipolar disorder. Tr. 26, Finding 3. At step three, the ALJ determined that
plaintiff's severe impaitments did not meet or equal a listed impairment in 20 C.F.R. Paii 404,
Subpart P, Appendix 1. Tr. 28, Finding 4. At step four, the ALJ determined that plaintiff has the
RFC to perfo1m a range of work at all exe1iional levels but with the following limitations: she
should not work around hazards such as working at unprotected heights or around machinery
with exposed moving pmis; she should not be given complex tasks; and she should have less
than occasional interaction with her coworkers and should have no contact with the general
public in her work tasks. Tr. 29, Finding 5.
Based on plaintiff's RFC and testimony from the VE, the ALJ determined that plaintiff
was unable to perform any of her past relevant work. Tr. 32, Finding 6. At step five, however,
the ALJ found that plaintiff could perform other work existing in significant numbers in the
national economy including work as a industrial cleaner, hotel cleaner, or small products

1

Tr. refers to the Transcript of the Administrative Record.

OPINION AND ORDER - 4

assembler. Tr. 32-33, Finding 10. Therefore, the ALJ found that plaintiff was not disabled as
defined in the Social Security Act. The Appeals Council denied plaintiffs request for
administrative review, making the ALJ's decision the final decision of the Acting Commissioner.
Plaintiff subsequently initiated this action seeking judicial review.
DISCUSSION
Plaintiff first contends that the ALJ rejected part of her testimony regarding the intensity
of her symptoms and the side-effects of her medications, as well as their effect on her ability to
work, for less than clear and convincing reasons. Second, plaintiff argues that the ALJ
improperly rejected the lay witness testimony of plaintiffs mother. Third, plaintiff asse1is that,
because of these failures, the ALJ improperly relied on the VE testimony in dete1mining that
plaintiff could perfmm other work existing in significant numbers in the national economy. This
court finds plaintiffs first and third arguments persuasive.

1.

Plaintiff's Testimony

Plaintiff asserts that the ALJ erred by failing to provide clear and convincing reasons for
finding that plaintiffs testimony is less than fully credible. An ALJ need not believe every
allegation of disabling pain or functional limitation advanced by a claimant. See Orteza v.

Shala/a, 50 F.3d 748, 750 (9th Cir. 1995). However, once a claimant shows an underlying
impairment which may "reasonably be expected to produce pain or other symptoms alleged,"
absent a finding of malingering, the ALJ must provide "clear and convincing" reasons for finding
a claimant not credible. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (citing

Smolen v. Chafer, 80 F.3d 1273, 1281 (9th Cir. 1996)). The ALJ may consider many factors in
weighing a claimant's credibility, including ordinary techniques of credibility evaluation, such as
the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, other

OPINION AL'ID ORDER - 5

testimony by the claimant that appears less than candid, and inadequately explained failures to
seek treatment or to follow a prescribed course of treatment. Smolen, 80 F.3d at 1284. A
claimant's statements cannot be rejected solely because the testimony is viewed as
unsubstantiated by the available objective medical evidence. 20 C.F.R. §§ 404.1529(c)(2);
416.929( c)(2).
Regarding non-compliance with treatment, under SSR 96-7, an ALJ is not pennitted to
draw any inferences about an individual's symptoms and their functional effects that are based
upon a perceived "failure to seek or pursue regular medical treatment" without first considering
any explanations that the individual may provide, or other information in the case record that
may explain such apparent failures. See lviansfield v. Astrue, CIV. 07-1427-HA, 2011 WL
285213, at *6 (D. Or. Jan. 25, 2011 ). An ALJ must also give clear and convincing reasons for
rejecting a claimant's testimony regarding the side-effects he or she experiences from his or her
medications. See Batson v. Comm'r Soc. Security Admin., 359 F.3d 1190, 1196 (9th Cir. 1988);

Salazar v. Astrue, 859 F. Supp. 2d 1202, 1228 (D. Or. 2012). Like other symptoms such as pain,
the side-effects of medications can have a significant impact on an individual's ability to work
and should factor into the disability assessment process. Salazar, 859 F. Supp. 2d at
1228(quoting Varney v. Sec'y ofHealth & Human Serv., 846 F.2d 581, 585 (9th Cir. 1988)).
Moreover, side-effects can be a "highly idiosyncratic phenomenon" and a "claimant's testimony
as to their limiting effects should not be trivialized." Id.
The ALJ believed plaintiff to be sincere and not malingering, and yet nevertheless found
that plaintiffs "statements concerning the intensity, persistence and limiting effects of her
symptoms are not credible to the extent they are not consistent with or supported by the medical
evidence of the record." Tr. 30, Finding 5. Specifically, although the ALJ found that when she
OPINION AND ORDER - 6

did not take her medications plaintiffs mental health symptoms worsened and she was
hospitalized, the ALJ found that as long as plaintiff took her medications, she could function
"fairly well." Id. The ALJ rejected plaintiffs assertion that her mental health condition
prevented her from attending and seeking treatment and from taking her medications as "not
persuasive" and "contradicted by the medical record." Id. Finally, the ALJ relied on the
assessment of Sandra Lundblad, Ph.D., who found plaintiff to be not fully credible regarding her
symptoms. Id. For these reasons, the ALJ concluded that plaintiff had alleged no medical
problem that would physically prevent her from working as long as she followed her course of
treatment. Id.
Plaintiff, in her testimony during the hearing, offered a number of bases for missing her
appointments and not taking her medications. Plaintiff had trouble making her appointments at
Lifeworks Northwest because her driver's license had been suspended. Tr. 46. Her mother
worked two jobs and had difficulty giving plaintiff rides around her schedule. Tr. 50. Plaintiff
further asserts that her mental health issues prevented her from taking the bus to Lifeworks
No1ihwest by herself. Id. With regard to her non-compliance with her medication, although
plaintiff admitted that she believed that the medications helped, side-effects such as extreme
drowsiness that prevented her from working or from caring for her children and dyskinesia led to
frequent and abrupt changes in the types of medications she took as well as their dosages. Id.
This court disagrees with the ALJ's conclusions regarding plaintiffs testimony. Although
the ALJ's found that plaintiffs missed appointments were not due to her impairments, the ALJ
barely discusses plaintiffs explanations for her difficulties with compliance nor does she provide
specific reasons for discrediting plaintiffs statements regarding her symptoms or the side-effects
of her medications. The ALJ writes that while she was hospitalized at Lifeworks Northwest in
OPINION AND ORDER - 7

August 2010 after not taking her medication, plaintiff denied that her medications caused her
side-effects. Tr. 27-28, Finding 3. The ALJ adds that plaintiff was "noted as notorious for not
taking her medications." Id Upon examining the pages of the transcript cited by the ALJ,
however, this court finds plaintiff in fact attributed the reasons for her hospitalization to her
difficulties with her medication and exhibited signs of dyskinesia as a side-effect of her
medications. Tr. 365. Only after she ceased taking Abilify, one of the medications she had been
prescribed, did plaintiffs dyskinesia cease. Tr. 446. Nowhere in the pages of the report that the
ALJ cited was the plaintiff regarded as "notorious" for not taking her medications. Moreover,
although the ALJ said that Dr. Lundblad found plaintiff to not be completely credible, the ALJ
never directly tied this credibility assessment to plaintiffs non-compliance with treatment. The
ALJ erred in drawing inferences about the effects of plaintiffs symptoms based on noncompliance without expressly considering plaintiffs explanations for her non-compliance with
her treatment. iV!ansfield, 2011 WL 285213, at* 6. As a result, the ALJ failed to state clear and
convincing reasons for discrediting plaintiffs testimony. Tommasetti v. Astrue, 533 F.3d 1035,
1039 (9th Cir. 2008).

2.

Lay Testimony

Plaintiff further contends that the ALJ improperly rejected the lay witness testimony of
plaintiffs mother. Lay testimony regarding a claimant's symptoms "is competent evidence that
an ALJ must take into account, unless [the ALJ] expressly detennines to disregard such
testimony and gives reasons ge1mane to each witness for doing so." Lewis v. Apfel, 236 F.3d
503, 511 (9th Cir. 200 I). An ALJ must offer "arguably germane reasons for dismissing" lay
testimony, but need not "clearly link [her] determination to those reasons." Id. at 512. However,
the germane reasons given by the ALJ must also be specific. Bruce v. Astrue, 557 F.3d 1113,
OPINION AND ORDER - 8

1115 (9th Cir. 2009). A legitimate reason to discount lay testimony is that it conflicts with
medical evidence. Lewis, 236 F.3d at 511. But the ALJ cannot discredit lay testimony because it
is not supported by, or conoborated by, medical evidence in the record. Bruce, 557 F.3d at 1116.
Here, the ALJ found that the plaintiffs mother's written third-party statements and her
testimony concerning the intensity, persistence, and limiting effects of plaintiff's alleged
symptoms were inconsistent with the supported medical evidence. Tr. 30, Finding 5. The ALJ
gave great weight to the overall capacity assessment rendered by Daniel Scharf, Ph.D., who gave
the opinion that plaintiff did not report symptoms consistent with bipolar disorder. 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. 236 F.3d at 511.
The Ninth Circuit held that this was not enor, because the ALJ had explained the contradictory
medical evidence and statements elsewhere in the decision. Id. at 512. Here, the ALJ notes
throughout her decision the medical evidence she has credited for finding that plaintiff is not
disabled. Based upon these standards, the court finds that ALJ gave specific and germane
reasons for discounting the lay witness's testimony in this case regarding the intensity of
plaintiff's symptoms.

3.

Vocational Expert Testimony

Plaintiff argues that because the ALJ relied on the answers from the VE that were not
based upon all of plaintiff's limitations, the VE's testimony has no evidentiaiy value. In making
that dete1mination at step five, the ALJ may elicit testimony from a VE, but the "[h]ypothetical
questions posed to the vocational expert must set out all the limitations and restrictions of the
particular claimant." Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988) (citations omitted).
However, if a VE's hypothetical does not reflect all the claimant's limitations, then the "expert's
OPINION AND ORDER - 9

testimony has no evidentiary value to support a finding that the claimant can perform jobs in the
national economy." Delorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991).
The ALJ rejected the hypothetical raised with the VE regarding the ability of a person who
was off task twenty percent of the time to sustain competitive employment because the record
reflected that plaintiff functions well when she is compliant with treatment and medications. Tr.
30, Finding 5. The ALJ did not include the side-effects of plaintiffs medications in her
hypothetical question to the VE. Rather, the ALJ seemed to brush off any of plaintiffs concerns
about the side-effects of her medication when discussing how taking her medication was
conducive toward plaintiffs pursuit of gainful employment. Tr. 30, Finding 5. Side-effects can
have a significant impact on an individual's ability to work and a "claimant's testimony as to their
limiting effects should not be trivialized." Salazar, 859 F. Supp. 2d at 1228 (D. Or. 2012). The
ALJ did not consider how plaintiffs difficulty with making appointments and her difficulties with
how the side-effects from the many different types and dosages of medications might restrict her
ability to perform substantial gainful activity. The ALJ's failure to include appropriate findings
regarding the side-effects of plaintiffs medications in her hypotheticals to the VE constitutes error
and requires remand.

4.

Remand

A court may remand a Social Security disability case for either fmiher proceedings or for
the immediate payment of benefits. Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004). A
remand for further proceedings is unnecessmy if the record is fully developed, and it is
clear from the record that the ALJ would be required to award benefits. Holohan v. };fassanari,
246 F.3d 1195, 1210 (9th Cir. 2001). The decision whether to remand for further proceedings
turns upon the likely utility of such proceedings. Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir.
OPINION Ai"ID ORDER-10

2000). It is appropriate to remand for further proceedings in a case in which the ALJ has failed to
articulate the reason for discrediting claimant's testimony, and adequate findings remain necessmy
for dete1mining eligibility for disability benefits. Light v. Social Sec. Admin., 119 F.3d 669, 793
(9th Cir. 2000).
This comi concludes that outstanding issues remain that must be resolved before a
determination of disability can be made. Fmiher proceedings will be useful. Upon remand, the
ALJ shall address all evidence presented in accordance with the standards outlined above.
CONCLUSION
For the reasons provided, this comi concludes that pursuant to sentence four of 42 U.S.C.
§ 405(g), the decision of the Acting Commissioner denying Gabriela Romero's applications for

DIB and SSI must be REVERSED and REMANDED FOR FURTHER PROCEEDINGS
consistent with this ruling and the pal'ameters provided herein.
IT IS SO ORDERED.
DATED this,;?;;-- day of September, 2014.

Ancer L. Hagge
United States District Judge

OPINION AND ORDER - 11