Hotchkiss v. Commissioner Social Security Administration

Filing 21

Opinion and Order. The Court REVERSES the decision of the Commissioner and REMANDS this matter pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings. Signed on 7/21/21 by Judge Anna J. Brown. See attached 27 page Opinion and Order for full text. (bb)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CARRIE M. H.,1
Plaintiff,

6:20-cv-00999-BR
OPINION AND ORDER

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
KATHERINE L. EITENMILLER
MARK A. MANNING
Harder, Wells, Baron & Manning, P.C.
474 Willamette St.
Eugene, OR 97401
[phone]
Attorneys for Plaintiff
SCOTT ERIK ASPHAUG
Acting United States Attorney
RENATA GOWIE
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
In the interest of privacy this Court uses only the first
name and the initial of the last name of the nongovernmental
party in this case. Where applicable, this Court uses the same
designation for the nongovernmental party's immediate family
member.
1

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MICHAEL W. PILE
Acting Regional Chief Counsel
ERIN F. HIGHLAND
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff Carrie M. H. seeks judicial review of the final
decision of the Commissioner of the Social Security
Administration (SSA) in which the Commissioner denied
Plaintiff's application for Supplemental Security Income (SSI)
under Title XVI of the Social Security Act.

This Court has

jurisdiction to review the Commissioner's final decision
pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the Court REVERSES the
decision of the Commissioner and REMANDS this matter pursuant to
sentence four of 42 U.S.C. § 405(g) for further administrative
proceedings.

ADMINISTRATIVE HISTORY
On September 21, 2016, Plaintiff protectively filed her
applications for SSI benefits under Title XVI and for Disability
Insurance Benefits (DIB) under Title II of the SSA Act.
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Tr. 29,

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163, 170.2
1, 2016.

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Plaintiff alleges a disability onset date of January
Tr. 29, 163, 170.

Plaintiff=s applications were denied

initially and on reconsideration.

An Administrative Law Judge

(ALJ) held a hearing on October 22, 2018.

Tr. 45-71.

At the

hearing Plaintiff withdrew her application for DIB benefits.
Tr. 29, 50-51.

Plaintiff and a vocational expert (VE) testified

at the hearing.

Plaintiff was represented by an attorney at the

hearing.
On January 16, 2019, the ALJ issued an opinion in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 29-40.

Appeals Council.

Plaintiff requested review by the

On April 24, 2020, the Appeals Council denied

Plaintiff's request to review the ALJ's decision, and the ALJ's
decision became the final decision of the Commissioner.
Tr. 1-4.
On June 22, 2020, Plaintiff filed a Complaint in this Court
seeking review of the Commissioner's decision.

Citations to the official Transcript of Record (#13)
filed by the Commissioner on January 12, 2021, are referred to
as "Tr."
2

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BACKGROUND
Plaintiff was born on June 12, 1984.

Tr. 38, 163, 170.

Plaintiff was 31 years old on her alleged disability onset date.
Tr. 38.

Plaintiff has at least a high-school education.

Tr. 38.

Plaintiff has past relevant work experience as a

cashier and dog-groomer.

Tr. 38.

Plaintiff alleges disability due to Post-Traumatic Stress
Disorder (PTSD), depression, and a knee injury.

Tr. 75.

Except as noted, Plaintiff does not challenge the ALJ's
summary of the medical evidence.

After carefully reviewing the

medical records, this Court adopts the ALJ's summary of the
medical evidence.

See Tr. 32-38.

STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
(9th Cir. 2012).

Molina v. Astrue, 674 F.3d 1104, 1110

To meet this burden a claimant must

demonstrate her inability "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."
U.S.C. § 423(d)(1)(A).

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42

The ALJ must develop the record when

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there is ambiguous evidence or when the record is inadequate to
allow for proper evaluation of the evidence.

McLeod v. Astrue,

640 F.3d 881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari,
276 F.3d 453, 459B60 (9th Cir. 2001)).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
U.S.C. § 405(g).

42

See also Brewes v. Comm'r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012).

Substantial evidence is

"relevant evidence that a reasonable mind might accept as
adequate to support a conclusion."

Molina, 674 F.3d. at 1110-11

(quoting Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)).

"It is more than a mere scintilla [of

evidence] but less than a preponderance."

Id. (citing

Valentine, 574 F.3d at 690).
The ALJ is responsible for evaluating a claimant's
testimony, resolving conflicts in the medical evidence, and
resolving ambiguities.
(9th Cir. 2009).

Vasquez v. Astrue, 572 F.3d 586, 591

The court must weigh all of the evidence

whether it supports or detracts from the Commissioner's
decision.
Cir. 2008).

Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th
Even when the evidence is susceptible to more than

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one rational interpretation, the court must uphold the
Commissioner=s findings if they are supported by inferences
reasonably drawn from the record.
1047, 1051 (9th Cir. 2012).

Ludwig v. Astrue, 681 F.3d

The court may not substitute its

judgment for that of the Commissioner.

Widmark v. Barnhart, 454

F.3d 1063, 1070 (9th Cir. 2006).

DISABILITY ANALYSIS
I.

The Regulatory Sequential Evaluation
At Step One the claimant is not disabled if the

Commissioner determines the claimant is engaged in substantial
gainful activity (SGA).

20 C.F.R. § 416.920(a)(4)(i).

See also

Keyser v. Comm'r of Soc. Sec., 648 F.3d 721, 724 (9th Cir.
2011).
At Step Two the claimant is not disabled if the
Commissioner determines the claimant does not have any medically
severe impairment or combination of impairments.
§ 416.920(a)(4)(ii).

20 C.F.R.

See also Keyser, 648 F.3d at 724.

At Step Three the claimant is disabled if the Commissioner
determines the claimant's impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.

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20 C.F.R.

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§ 416.920(a)(4)(iii).

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See also Keyser, 648 F.3d at 724.

The

criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments).
If the Commissioner proceeds beyond Step Three, he must
assess the claimant's residual functional capacity (RFC).

The

claimant's RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite her limitations.
§ 416.920(e).

20 C.F.R.

See also Social Security Ruling (SSR) 96-8p.

"A

'regular and continuing basis' means 8 hours a day, for 5 days a
week, or an equivalent schedule."

SSR 96-8p, at *1.

In other

words, the Social Security Act does not require complete
incapacity to be disabled.

Taylor v. Comm'r of Soc. Sec.

Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v.
Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.

20 C.F.R. § 416.920(a)(4)(iv).

See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, he must determine
whether the claimant is able to do any other work that exists in

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the national economy.

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20 C.F.R. § 416.920(a)(4)(v).

Keyser, 648 F.3d at 724-25.

See also

Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform.

Lockwood v.

Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
The Commissioner may satisfy this burden through the testimony
of a VE or by reference to the Medical-Vocational Guidelines (or
the grids) set forth in the regulations at 20 C.F.R. part 404,
subpart P, appendix 2.

If the Commissioner meets this burden,

the claimant is not disabled.

20 C.F.R. § 416.920(g)(1).

ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since January 1, 2016, Plaintiff's
alleged disability onset date.

Tr. 31.

At Step Two the ALJ found Plaintiff has the severe
impairments of major depressive disorder, PTSD, and a
generalized anxiety disorder.

Tr. 31.

At Step Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1.

Tr. 32.

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The ALJ found Plaintiff has the RFC to

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perform a full range of work at all exertional levels with the
following nonexertional limitations:

can only perform simple

tasks with a reasoning level of two or less; can only make
simple work-related decisions; can only occasionally interact
with supervisors and coworkers; and cannot interact with the
general public.

Tr. 34.

At Step Four the ALJ concluded Plaintiff is unable to
perform her past relevant work.

Tr. 38.

At Step Five the ALJ found Plaintiff can perform other jobs
that exist in the national economy such as housekeeping-cleaner,
packing-line worker, and production-assembler.

Tr. 39.

Accordingly, the ALJ found Plaintiff is not disabled.

Tr. 39-

40.

DISCUSSION
Plaintiff contends the ALJ erred when he (1) failed to
provide legally sufficient reasons for discounting the medical
opinions of Manuel Gomes, Ph.D., an examining psychologist, and
Ruth Wood, Plaintiff's treating Qualified Mental Health
Practitioner (QMHP); (2) failed to provide legally sufficient
reasons for discounting Plaintiff's symptom testimony; and
(3) failed to provide legally sufficient reasons for discounting

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the lay-witness testimony of Jill Graves, Plaintiff's friend.
I.

The ALJ erred in his assessment of the medical opinions of
Dr. Gomes and QMHP Wood.
Plaintiff contends the ALJ erred when he failed to provide

legally sufficient reasons for discounting the medical opinions
of Dr. Gomes and QMHP Wood regarding Plaintiff's limitations.
A.

Standards
"In disability benefits cases . . . physicians may

render medical, clinical opinions, or they may render opinions
on the ultimate issue of disability - the claimant's ability to
perform work."
2014).

Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir.

"In conjunction with the relevant regulations, [courts]

have . . . developed standards that guide [the] analysis of an
ALJ's weighing of medical evidence."

Ryan v. Comm'r of Soc.

Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
"If a treating or examining doctor's opinion is
contradicted by another doctor's opinion, an ALJ may only reject
it by providing specific and legitimate reasons that are
supported by substantial evidence."

Id.

When contradicted, a

treating or examining physician's opinion is still owed
deference and will often be "entitled to the greatest
weight . . . even if it does not meet the test for controlling
weight."

Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007).

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ALJ can satisfy the "substantial evidence" requirement by
"setting out a detailed and thorough summary of the facts and
conflicting clinical evidence, stating his interpretation
thereof, and making findings."

Reddick, 157 F.3d at 725.

ALJ must do more than state conclusions.

"The

He must set forth his

own interpretations and explain why they, rather than the
doctors', are correct."

Id. (citation omitted).

Medical sources are divided into two categories:
"acceptable medical sources" and "other sources."
§ 416.913.

20 C.F.R.

Acceptable medical sources include licensed

physicians and psychologists.

20 C.F.R. § 416.913(a).

Medical

sources classified as "other sources" include, but are not
limited to, nurse practitioners, therapists, licensed clinical
social workers, and chiropractors.

20 C.F.R. § 416.913(d).

With respect to "other sources," the Social Security
Administration Regulations provide:
With the growth of managed health care in recent
years and the emphasis on containing medical
costs, medical sources who are not acceptable
medical sources, such as nurse practitioners,
physician assistants, and licensed clinical
social workers, have increasingly assumed a
greater percentage of the treatment and
evaluation functions previously handled primarily
by physicians and psychologists. Opinions from
these medical sources, who are not technically
deemed acceptable medical sources under our
rules, are important and should be evaluated on
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key issues such as impairment severity and
functional effects, along with the other relevant
evidence in the file.
SSR 06-03p, at *3.

Factors the ALJ should consider when

determining the weight to give an opinion from those "important"
sources include the length of time the source has known the
claimant, the number of times and frequency that the source has
seen the claimant, the consistency of the source's opinion with
other evidence in the record, the relevance of the source's
opinion, the quality of the source's explanation of his opinion,
and the source's training and expertise.

SSR 06-03p, at *4.

On

the basis of the particular facts and the above factors the ALJ
may assign an "other source" either greater or lesser weight
than that of an acceptable medical source.

SSR 06-03p, at *5-6.

The ALJ, however, must explain the weight assigned to such
sources so that a claimant or subsequent reviewer may follow the
ALJ's reasoning.

SSR 06-03p, at *6.

"The ALJ may discount

testimony from . . . 'other sources' if the ALJ 'gives reasons
germane to each witness for doing so.'"

Molina, 674 F.3d at

1111 (quoting Turner v. Comm'r Soc. Sec. Admin., 613 F.3d 1217,
1224 (9th Cir. 2010)).

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B.

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Analysis
1.

Dr. Gomes

On March 9, 2017, Dr. Gomes performed a consultative
psychological examination of Plaintiff.

Tr. 346-53.

Dr. Gomes

diagnosed Plaintiff with PTSD, general anxiety, and "major
depression, recurrent, moderate."

Tr. 351.

He opined Plaintiff

is impaired in her ability to perform detailed and complex tasks
and "would have difficulty despite her capabilities."

Tr. 352.

He also noted Plaintiff is able to accept instructions from
supervisors, but her ability to interact with coworkers and the
public is impaired and she would have difficulty with such
interaction because she is "easily triggered" with anxiety and
PTSD.

Tr. 352.

Dr. Gomes also opined Plaintiff's ability to

perform work activities on a consistent basis, to maintain
regular attendance, to complete a normal workday/workweek, and
to deal with usual stress in the workplace is impaired.
Tr. 352-53.
The ALJ gave "partial weight" to Dr. Gomes's opinion
that Plaintiff is unable to interact with coworkers or the
public, to perform a normal workweek, to handle workplace
stress, or to perform work without supervision.

Tr. 37.

The

ALJ, however, concluded Plaintiff is able to perform simple

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tasks, and the ALJ noted Dr. Gomes did not specify the severity
of Plaintiff's limitations in other aspects of her functioning.
Tr. 37.

The ALJ stated:
[F]inding [Plaintiff] incapable of interacting
with coworkers would be inconsistent with
[Plaintiff's] pleasant behavior, ability to
function with her family and close friends, as
well as the absence of evidence showing that
[Plaintiff] behaved inappropriately toward her
healthcare providers. Furthermore, although
[Plaintiff] has experienced high levels of
stress, particularly when going out in public,
the record contains no evidence that she has been
incapable of caring for herself, caring for her
family, or attending appointments as needed.

Tr. 37.
The evidence that Plaintiff is able to function in her
home with family and friends or appropriately interact with
healthcare providers, however, does not contradict Dr. Gomes's
opinion that Plaintiff cannot interact with coworkers, perform
work activities on a consistent basis, complete a normal workday
or workweek, or deal with stress in the workplace.

Without a

showing that Plaintiff's abilities to function at home are
"transferable to what may be the more grueling environment of
the workplace," such abilities do not constitute specific and
legitimate evidence that she would function as well in the
workplace.

Trevizio v. Berryhill, 871 F.3d 664, 682 (9th Cir.

2017).
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The Court notes Dr. Gomes's opinion is consistent with
and supported by his own observations that Plaintiff did not
respond to the use of humor, maintained only moderate eye
contact, and presented with a depressed mood and congruent
affect.

Tr. 350.

Dr. Gomes's opinion is also consistent with

the other objective findings by QMHP Wood that Plaintiff
demonstrated an anxious and fearful demeanor, she avoided eye
contact, she had difficulty with life decisions, and her thought
content was notable for worry/rumination.

Tr. 319.

On this record the Court concludes the ALJ erred when
he discounted Dr. Gomes's opinion because the ALJ did not
provide legally sufficient reasons supported by substantial
evidence in the record for doing so.
2.

QMHP Wood

On August 28, 2018, QMHP Wood completed a Treating
Source Statement for Plaintiff.

Tr. 499-505.

QMHP Wood began

treating Plaintiff in April 2016 for "interventions in coping
skills for trauma, behavior activation problem solving,
emotional processing, cognitive restructuring, and assertiveness
to manage anxiety and depression."

Tr. 499.

QMHP Wood noted

Plaintiff feels safe at home, but she is hyper-anxious and
vigilant in public.

QMHP Wood opined if Plaintiff worked with

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the public, it would trigger extreme anxiety and fear that she
could run into her former abuser (later described by her as her
ex-husband).

QMHP Wood, however, stated Plaintiff could get

along with coworkers and supervisors.
Tr. 500.
QMHP Wood also opined Plaintiff would have difficulty
working an eight-hour workday because she can be "easily
triggered" and overwhelmed with anxiety and she would have
difficulty concentrating in such circumstances.

Tr. 500.

QMHP Wood also concluded Plaintiff's difficulty with
concentration would interfere with her performance of complex
tasks.

Tr. 500-01.

QMHP Wood also opined Plaintiff's sleep

disturbances would "compromise" her ability to be consistent at
work, and Plaintiff's anxiety would force her to leave the
workplace.

Tr. 500-01.

QMHP Wood found Plaintiff has moderate

impairment in her ability to understand, to remember, and to
carry out complex instructions; to make judgments on complex
work-related decisions; and to interact appropriately with the
public.

Tr. 504.

QMHP Wood also found Plaintiff has mild

impairment in her ability to understand, to remember, and to
carry out simple instructions; to respond appropriately to
unusual work situations; and to handle changes in routine work

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settings.

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Tr. 504.
The ALJ gave "partial weight" to QMHP Wood's

assessment that Plaintiff would have difficulty working a full
workday on the ground that it is inconsistent with Plaintiff's
ability to spend hours on daily chores, meal preparation, and
caring for her children.

Tr. 37.

The ALJ, however, pointed out

that the record does not reflect any emergency treatment for an
acute exacerbation of Plaintiff's symptoms that would support
Plaintiff's inability to complete a normal workday.

Tr. 37.

As noted, the ALJ acknowledged Plaintiff "has
experienced high levels of stress, particularly when going out
in public," and that she isolates at home.

Tr. 36-37.

Again,

the ALJ focused on Plaintiff's ability to function in her home,
but he disregarded the limitations Plaintiff experiences in a
public setting as noted by both QMHP Wood and Dr. Gomes.
On this record the Court concludes the ALJ erred when
he discounted QMHP Wood's opinion because the ALJ did not
provide legally sufficient reasons supported by substantial
evidence in the record for doing so.
II.

The ALJ erred when he failed to provide legally sufficient
reasons for discounting Plaintiff's subjective symptom
testimony.
Plaintiff contends the ALJ erred when he failed to provide

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legally sufficient reasons for discounting Plaintiff's
subjective symptom testimony.
A.

Standards
The ALJ engages in a two-step analysis to determine

whether a claimant's testimony regarding subjective pain or
symptoms is credible.

"First, the ALJ must determine whether

the claimant has presented objective medical evidence of an
underlying impairment 'which could reasonably be expected to
produce the pain or other symptoms alleged.'"

Garrison v.

Colvin, 759 F.3d 995, 1014 (9th Cir. 2014)(quoting Lingenfelter
v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)).

The

claimant need not show his "impairment could reasonably be
expected to cause the severity of the symptom [he] has alleged;
[he] need only show that it could reasonably have caused some
degree of the symptom."

Garrison, 759 F.3d at 1014 (quoting

Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)).

A

claimant is not required to produce "objective medical evidence
of the pain or fatigue itself, or the severity thereof."
Garrison, 759 F.3d at 1014.
If the claimant satisfies the first step of this
analysis and there is not any affirmative evidence of
malingering, "the ALJ can reject the claimant's testimony about

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the severity of [his] symptoms only by offering specific, clear
and convincing reasons for doing so."
1014-15.

Garrison, 759 F.3d at

See also Robbins v. Soc. Sec. Admin., 466 F.3d 880,

883 (9th Cir. 2006)(same).

General assertions that the

claimant's testimony is not credible are insufficient.
Astrue, 481 F.3d 742, 750 (9th Cir. 2007).

Parra v.

The ALJ must

identify "what testimony is not credible and what evidence
undermines the claimant's complaints."

Id. (quoting Lester v.

Chater, 81 F.3d 821, 834 (9th Cir. 1995)).
B.

Analysis
On December 28, 2016, Plaintiff indicated in her Adult

Function Report that she has difficulties with concentration,
sleep, and being in public places.

Tr. 222.

She noted her high

anxiety makes it difficult for her to go to the store or to be
away from home.

Tr. 222.

She also stated her depression and

PTSD prevent her from functioning normally outside of her home.
Tr. 222.

Plaintiff, however, is able to care for herself and

her children, to attend therapy sessions, and to do household
chores.
home."

Tr. 223.
Tr. 223.

She generally tries to "stay near [her]
Plaintiff indicated she goes outside once a

week, but she tries "to avoid it."

Tr. 225.

She prefers not to

go out alone, gets "very stressed" when she goes out alone, and

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often has a friend go out with her.

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Tr. 225.

Page 20 of 27

Plaintiff

indicates her impairments make it difficult to focus, to
remember, to understand, and to concentrate.

Tr. 227.

At the hearing on October 22, 2018, Plaintiff
testified she had not worked since 2011 due to "the anxiety and
stress of having a regular job" and because she does not feel
safe in public.

Tr. 54.

Plaintiff stated her depression,

anxiety, and PTSD developed from a previous unhealthy
relationship with her ex-husband.

Tr. 55.

She feels "anxious

and stressed" when she goes out in public because she is afraid
she will encounter her ex-husband, and she is hypervigilant and
tries not to be by herself.

Tr. 57-58.

Plaintiff attends

therapy sessions every other week and participates in parentteacher conferences for her children, but she generally spends
her days at home cleaning and taking care of her children.
Tr. 57, 60-61.
The ALJ concluded Plaintiff's testimony is "only
partially consistent" with other evidence in the record and does
not support a finding of disability.

Tr. 35.

For example, the

ALJ noted Plaintiff does not need reminders for self-care or to
take medication, and she manages her finances on her own.
Tr. 36.

The ALJ noted Plaintiff spends one-to-three hours

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preparing complete meals for her family, 30 minutes-to-two hours
performing housework, cares for her children, and goes on weekly
shopping trips lasting one or two hours.

Tr. 36.

In addition,

Linda Graves, Plaintiff's friend, described Plaintiff as highly
involved with her family.

The ALJ noted Dr. Gomes described

Plaintiff as cooperative, and the record does not reflect
Plaintiff ever behaved "inappropriately" towards her healthcare
providers.

Tr. 36, 350.

The ALJ also relied on Plaintiff's own

statement that she can pay attention for one or two hours, and
Linda Graves also described Plaintiff's attention as good.
Tr. 36.
As previously pointed out, evidence that Plaintiff is
able to function in her home with family and friends or
appropriately interact with healthcare providers does not
contradict her testimony regarding the stress she experiences in
public.

The Court again notes without a showing that

Plaintiff's activities at home are "transferable to what may be
the more grueling environment of the workplace," such activities
do not constitute legally sufficient evidence for discounting
Plaintiff's testimony.

Trevizio v. Berryhill, 871 F.3d at 682.

On this record the Court finds the ALJ erred when he
discounted Plaintiff's subjective symptom testimony because the

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ALJ did not provide legally sufficient reasons supported by
substantial evidence in the record for doing so.
III. The ALJ failed to provide germane reasons for discounting
the lay-witness testimony of Linda Graves.
Plaintiff contends the ALJ failed to provide legally
sufficient reasons for discounting the lay-witness testimony of
Linda Graves, Plaintiff's friend.

The Commissioner, in

response, concedes the ALJ failed to provide a germane reason
for discounting the lay-witness testimony, but the Commissioner
contends such error was harmless.
A.

Standards
Lay-witness testimony regarding a claimant's symptoms

is competent evidence that the ALJ must consider unless he
"expressly determines to disregard such testimony and gives
reasons germane to each witness for doing so."
236 F.3d 503, 511 (9th Cir. 2001).

Lewis v. Apfel,

The ALJ's reasons for

rejecting lay-witness testimony must also be "specific."

Stout

v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir.
2006).

Germane reasons for discrediting a lay-witness's

testimony include inconsistency with the medical evidence and
the fact that the testimony "generally repeat[s]" the properly
discredited testimony of a claimant.
F.3d 1211, 1218 (9th Cir. 2005).
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Bayliss v. Barnhart, 427

See also Williams v. Astrue,

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493 F. App'x 866 (9th Cir. 2012).
B.

Analysis
On December 28, 2016, Graves completed a Third-party

Function report.

Tr. 233-40.

She indicated Plaintiff has good

attention unless she is distracted by being in a group of
people.

Tr. 238.

She also stated Plaintiff's ability to

perform her personal care is not limited and Plaintiff spends
her time maintaining her household and caring for her children.
Tr. 233, 234-36.
The ALJ gave "partial weight" to Graves's statements
on the ground that she "has not provided a function-by-function
assessment" of Plaintiff's limitations.

Tr. 38.

As noted, the

Commissioner concedes this does not constitute a germane reason
for discounting Graves's statement.
contends this error is harmless.

The Commissioner, however,

The Commissioner asserts

Graves's statements are relatively consistent with Plaintiff's
testimony regarding her symptoms, and the Court should conclude
Graves's statements are unsupported to the extent that the Court
concludes the ALJ properly discounted Plaintiff's testimony.
See Molina, 674 F.3d at 1122 (discounting lay-witness testimony
without reason "is harmless where the same evidence that the ALJ
referred to in discrediting [the claimant's] claims also

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discredits [the lay-witness's] claims.").
As noted, the Court has concluded the ALJ erred when
he discounted Plaintiff's testimony and failed to provide
legally sufficient reasons for doing so.

The Commissioner

concedes the ALJ discounted Graves's testimony for reasons that
were not legally sufficient.

Accordingly, the Court concludes

the ALJ failed to provide any legally sufficient reasons for
discounting Graves's testimony and finds such error is not
harmless.

REMAND
The decision whether to remand for further proceedings or
for payment of benefits generally turns on the likely utility of
further proceedings.

Carmickle, 533 F.3d at 1179.

The court

may "direct an 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.

The Ninth Circuit has established a three-part test "for
determining when evidence should be credited and an immediate
award of benefits directed."
1178 (9th Cir. 2000).
of benefits when

24 - OPINION AND ORDER

Harman v. Apfel, 211 F.3d 1172,

The court should grant an immediate award

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(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.

The second and third prongs of the test often merge into a

single question:

Whether the ALJ would have to award benefits

if the case were remanded for further proceedings.

Id. at 1178

n.2.
The decision whether to remand for further proceedings or
for payment of benefits generally turns on the likely utility of
further proceedings.

Carmickle, 533 F.3d at 1179.

The court

may "direct an 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.

The Ninth Circuit has established a three-part test "for
determining when evidence should be credited and an immediate
award of benefits directed."
1178 (9th Cir. 2000).

Harman v. Apfel, 211 F.3d 1172,

The court should grant an immediate award

of benefits when
(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
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credited.
Id.

The second and third prongs of the test often merge into a

single question:

Whether the ALJ would have to award benefits

if the case were remanded for further proceedings.

Id. at 1178

n.2.
Here the Court has concluded the ALJ failed to provide
legally sufficient reasons for discounting the medical opinions
of Dr. Gomes and QMHP Wood, for discounting Plaintiff's symptom
testimony, and for discounting the lay-witness testimony of
Graves.

The Court, therefore, cannot conclude at this stage

whether the ALJ would be required to find Plaintiff is disabled
in light of these errors.
Accordingly, the Court remands this matter for further
administrative proceedings consistent with this Opinion and
Order.

CONCLUSION
For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter pursuant to sentence four

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of 42 U.S.C. § 405(g) for further administrative proceedings.
IT IS SO ORDERED.
DATED this 21st day of July, 2021.

/s/ Anna J. Brown
______________________________________
ANNA J. BROWN
United States Senior District Judge

27 - OPINION AND ORDER