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Steeves v. Commissioner of Social Security


September 25, 2009


The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge


Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 13) and defendant's cross-motion for summary judgment (Doc. 14).


Plaintiff applied for social security benefits on July 1, 2005. In the application, plaintiff claims that disability began on September 6, 2003. In his motion for summary judgment, plaintiff claims that disability is caused by a combination of chronic obstructive pulmonary disease ("COPD"), lack of one kidney, high blood pressure, and scoliosis. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on October 30, 2006, before Administrative Law Judge ("ALJ") Daniel G. Heely. In a December 21, 2006, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. Plaintiff has the following severe impairments: COPD and scoliosis;

2. Neither impairment meets or medically equals an impairment listed in the Listing of Impairments;

3. The plaintiff has the residual functional capacity to perform sedentary work with no exposure to smoke or other environmental irritants;

4. Plaintiff cannot perform his past relevant work;

5. Plaintiff's subjective statements regarding pain and other symptoms are not credible; and

6. Based on application of the Grids, there are jobs which exist in significant numbers which plaintiff can perform.

After the Appeals Council declined review on February 15, 2008, this appeal followed.


The certified administrative record ("CAR") contains the following evidence, summarized chronologically below:

August 18, 2003 -- Richard Buys, M.D., reported following plaintiff's admission to the emergency room at San Joaquin General Hospital. (CAR 188). The doctor stated that plaintiff came in complaining of shortness of breath. He was provided medication and released.

September 6, 2003 -- Adriana Arreola, D.O., reported following plaintiff's admission to the emergency room at San Joaquin General Hospital. (CAR 203-06). He presented complaining of shortness of breath once a week. The doctor reported that plaintiff was smoking up to 1-1/2 packs of cigarettes per day. She also noted that plaintiff had a history of alcohol abuse, drinking 1/2 pint of vodka per day. Plaintiff was provided medication and released.

November 27 2004 -- Karen Philippi, M.D., reported following plaintiff's admission to the emergency room at San Joaquin General Hospital. (CAR 182-83). Dr. Philippi noted that plaintiff had arrived by ambulance complaining of shortness of breath. Plaintiff was provided medication and was later able to walk around the emergency room without shortness of breath.

March 1, 2005 -- Kanwar Grewal, M.D., submitted a "Physician's Supplemental Certificate" to EDD. (CAR 67). In this statement, Dr. Grewal indicated that plaintiff was disabled due to COPD and that he continues to use a nebulizer. The doctor also stated that plaintiff would be able to return to his regular work on May 11, 2005.

June 22, 2005 -- Madhuri Pellakuru, M.D., reported following plaintiff's admission to the emergency room at San Joaquin General Hospital. (CAR 104, 108-09, 111). Plaintiff was brought in by ambulance with complaints of worsening shortness of breath for one day. He also complained of chest pain while walking. On physical examination, the doctor noted that breath sounds were heard and that there was a wheeze bilaterally with minimal basilar crackles. The doctor also noted that plaintiff's urine toxicology was positive for cocaine and that plaintiff admitted that he smokes marijuana. Dr. Pellakuru provided the following assessment:

Chronic obstructive pulmonary disease exacerbation, secondary to bronchitis. Chest x-ray is within normal limits. No infiltrates. White blood cell count is normal. The patient is currently on Albuterol and Azmacort. . . . [¶] Polysubstance abuse, alcohol, marijuana, we will get a substance abuse consult. [¶] Smoking counseling done. The patient does not want to quit at this time.

Plaintiff was given medication and discharged.

September 19, 2005 -- Agency examining doctor Satish Sharma, M.D., reported on a comprehensive internal medical evaluation. (CAR 71-75). Dr. Sharma reported the following history:

The claimant is a 39-year-old Caucasian male who complains of cough and shortness of breath. He gives a history of cough with whitish-yellowish sputum. No history of hemoptysis. He is a smoker and used to smoke 2-1/2 packs a day but is now down to one pack per day. He has been smoking for the past twenty-five years. He has had several hospitalizations in the past five to six years for the exacerbation of shortness of breath, on average about two to three times per year. The last time was in June of this year. He also has had several Emergency Room visits, on average about four or five per year. He denies ever being intubated or being put on a ventilator. He says that mild exertion such as walking distances of less than one-half block makes him short of breath. Also doing small things such as putting shoes on can make him short of breath. He denied any exertional chest pain. There is no documentation of myocardial infarction in the past.

Dr. Sharma stated that there is no history of hypertension. On physical examination, the doctor noted that plaintiff's lungs showed scattered rales and decreased air entry bilaterally. He added that the expiratory phase is prolonged. He also observed scoliosis in the thoracic and lumbar spine with no tenderness to palpation and no spasm. Plaintiff's back range of motion was full and straight-leg raising was negative bilaterally. Lasegue sign was negative. Dr. Sharma provided the following functional assessment:

Because of his history of chronic obstructive pulmonary disease with shortness of breach on mild exertion, the claimant is limited to light work. The claimant should be limited in lifting to 10 pounds frequently, 20 pounds occasionally. Standing and walking should be limited to 6 hours per day with normal breaks. There are no limitations in holding, fingering, or feeling objects. There are no limitations in speech, hearing, or vision.

October 5, 2005 -- Agency consultative doctor Shepard Fountaine, M.D., submitted a physical residual functional capacity assessment. (CAR 84-91). The doctor's functional assessment was the same as that provided by Dr. Sharma. Dr. Fountaine added that plaintiff was unlimited in ability to push/pull and should avoid fumes, odors, dusts, gases, and poor ventilation. Dr. Fountaine noted that plaintiff's subjective complaints were only partially credible because "symptoms appear disproportionate to substantial evidence."

March 16, 2006 -- Agency consultative doctor Marshall Gollub, M.D., submitted a physical residual functional capacity assessment. (CAR151-58). Dr. Gollub opined that plaintiff could lift/carry 10 pounds both occasionally and frequently, could stand/walk for at least 2 hours but not as many as six hours in a workday, could sit for up to six hours, and push/pull without restriction. He also opined that plaintiff could only occasionally climb, balance, stoop, kneel, crouch, or crawl. No manipulative, visual, or communicative limitations were noted. The doctor stated that plaintiff should avoid fumes, odors, dusts, gases, and poor ventilation and added that plaintiff needs a "rather clean environment."

July 1, 2006 -- Sangita Barish, D.O., reported following plaintiff's admission to the emergency room at San Joaquin General Hospital. (CAR 195-97). Plaintiff was brought in for shortness of breath and non-productive cough, and reported that he had run out of his medication a few days earlier. Chest x-rays showed pulmonary fibrosis, an endotracheal tube in place at the right main stem bronchus, and decreased lung volume. Plaintiff's urine toxicology was positive for cocain and cannabis, and the doctor noted alcohol abuse. Plaintiff was provided medication and discharged.

October 30, 2006 -- Melvin L. McCory, Sr., submitted a third-party statement as to plaintiff's capabilities. (CAR 64). He stated:

My name is Melvin L. McCory, Sr. I have known James Steeves for more than 15 years. I am the Pastor and C.E.O. of the Church of Christ Within, d.b.a. Christ's Missionaries. James has been with the church for 15 years. I have watched his health deteriorate for the past 6 years or more. James did store-front soliciting and door-to-door fundraising for the last year so James has not been able to fundraise for our church because he cannot walk very far, he cannot do door-to-door fundraising nor is he able to sit at a store holding a bucket all day to earn his keep. I see him everyday fighting to breath as he heads for the bath room. James Steeves is more than welcome to stay with the Christ's Missionaries. He does not have an income and he cannot support himself.

On this same day, Paul Ridgeway, the executive director of the church, submitted a third-party statement. (CAR 65). He stated as follows:

I have known James Steeves for more than 6 years and have known him to be in poor health. His breathing is shallow and he is unable to walk virtually short distances without his oxygen bottles. His efforts to breathe are hard and taxing. James is unable to help fundraise funds to keep the church's homeless shelter doors open. Now that he is without income and is in need of help to support himself.


The court reviews the Commissioner's final decision to determine whether it is:

(1) based on proper legal standards; and (2) supported by substantial evidence in the record as a whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). "Substantial evidence" is more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). It is ". . . such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, including both the evidence that supports and detracts from the Commissioner's conclusion, must be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner's decision simply by isolating a specific quantum of supporting evidence. See Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a particular finding, the finding of the Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Therefore, where the evidence is susceptible to more than one rational interpretation, one of which supports the Commissioner's decision, the decision must be affirmed, see Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).


Plaintiff argues: (1) the ALJ erred in concluding that his COPD did not meet the Listing of Impairments; (2) the ALJ erred by discrediting his testimony based on inability to afford prescribed medication; (3) the ALJ failed to consider lay witness testimony; and (4) the ALJ erred in relying on the Grids in lieu of obtaining testimony from a vocational expert. The court notes that plaintiff does not challenge the ALJ's severity finding or analysis of the medical opinions. Nor does plaintiff challenge the ALJ's credibility finding except as it relates to plaintiff's ability to afford medication.

A. Application of the Listing of Impairments

The Social Security Regulations "Listing of Impairments" is comprised of impairments to fifteen categories of body systems that are severe enough to preclude a person from performing gainful activity. Young v. Sullivan, 911 F.2d 180, 183-84 (9th Cir. 1990); 20 C.F.R. § 404.1520(d). Conditions described in the listings are considered so severe that they are irrebuttably presumed disabling. 20 C.F.R. § 404.1520(d). In meeting or equaling a listing, all the requirements of that listing must be met. Key v. Heckler, 754 F.2d 1545, 1550 (9th Cir. 1985).

As to application of the Listing of Impairments, the ALJ stated: The next step in the sequential evaluation process, Step 3, asks whether the claimant suffers from any impairment that is either listed in, or medically equivalent to one listed in, the Listing of Impairments found at 20 C.F.R., Part 404, Subpart P, Appendix 1. The claimant's medical records do not describe the findings of nerve root compression with neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness), sensory or reflex loss, and positive straight-leg raising testing required under Section 1.04 for a Listing level disorder of the spine.

Moreover, the results of pulmonary function testing performed do not reveal the . . . findings necessary to satisfy the criteria of Section 3.02 for Listing level chronic pulmonary insufficiency. Finally, the medical findings contained in the record are not equal in severity and duration to any Listed findings. (citations omitted).

Plaintiff contends that the ALJ erred in concluding that his COPD was not an impairment meeting the requirements of Listing 3.02.*fn1 Specifically, plaintiff contends that, to the extent the ALJ's conclusion is based on plaintiff's failure to stop smoking, the ALJ did not discuss this reason in the hearing decision and, in any event, no doctor formally prescribed smoking cessation. Plaintiff adds that he did quit smoking in July 2006 but nonetheless continues to suffer from COPD symptoms.

Plaintiff's argument is unpersuasive. Notwithstanding the ALJ's failure to discuss smoking cessation, the ALJ did discuss other reasons plaintiff's COPD does not satisfy Listing 3.02. Specifically, the ALJ noted that plaintiff's pulmonary functioning data did not meet the requirements -- a fact plaintiff ignores.

B. Plaintiff's Credibility

The Commissioner determines whether a disability applicant is credible, and the court defers to the Commissioner's discretion if the Commissioner used the proper process and provided proper reasons. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). An explicit credibility finding must be supported by specific, cogent reasons. See Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient. See Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). Rather, the Commissioner must identify what testimony is not credible and what evidence undermines the testimony. See id. Moreover, unless there is affirmative evidence in the record of malingering, the Commissioner's reasons for rejecting testimony as not credible must be "clear and convincing." See id.; see also Carmickle v. Commissioner, 533 F.3d 1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue, 504 F.3d 1028, 1936 (9th Cir. 2007), and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)).

If there is objective medical evidence of an underlying impairment, the Commissioner may not discredit a claimant's testimony as to the severity of symptoms merely because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d 341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater:

The claimant need not produce objective medical evidence of the [symptom] itself, or the severity thereof. Nor must the claimant produce objective medical evidence of the causal relationship between the medically determinable impairment and the symptom. By requiring that the medical impairment "could reasonably be expected to produce" pain or another symptom, the Cotton test requires only that the causal relationship be a reasonable inference, not a medically proven phenomenon. 80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)).

The Commissioner may, however, consider the nature of the symptoms alleged, including aggravating factors, medication, treatment, and functional restrictions. See Bunnell, 947 F.2d at 345-47. In weighing credibility, the Commissioner may also consider: (1) the claimant's reputation for truthfulness, prior inconsistent statements, or other inconsistent testimony; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; (3) the claimant's daily activities; (4) work records; and (5) physician and third-party testimony about the nature, severity, and effect of symptoms. See Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the claimant cooperated during physical examinations or provided conflicting statements concerning drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the claimant testifies as to symptoms greater than would normally be produced by a given impairment, the ALJ may disbelieve that testimony provided specific findings are made. See Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)).

As to plaintiff's credibility, the ALJ stated:

The claimant has . . . alleged an inability to perform even sedentary work due to his shortness of breath and other symptoms. His allegations must be considered in light of the objective medical findings as well as in light of other evidence such as the claimant's daily activities, the location, duration, frequency, and intensity of the claimant's symptoms, precipitating and aggravating factors, use of medications, treatment other than medications, other measures used to relieve his symptoms, and other factors concerning this functional limitations and restrictions due to his symptoms. (citations omitted). In this case, I find specific and legitimate reasons to reject the claimant's statements regarding his symptoms. First, I note that although the claimant has been hospitalized and has had to seek emergency room treatment on many occasions for shortness of breath and other respiratory problems, he has more than a 60-pack [per] year history of smoking cigarettes and smoked against medical advice, repeatedly stating that he did not want to quit, until his July 2006 admission (Exhibits 5F, esp. 5F/19 & 5F/44 & 9F). In addition, he also has a history of smoking marijuana and cocaine until July 2006 (Exhibits 5F/19, 9F/21 & 9F/26). Finally, although the claimant testified that he is so incapacitated that he cannot go anywhere without his oxygen mask, when he was admitted to the hospital in August 2004 he reported that he had run our of his home oxygen and all of the other drugs that he was on for his breathing problems (Exhibit 9F/26), when he was discharged from the hospital in June 2005 he was told that he did not qualify for home oxygen therapy (Exhibit 9f/25) and when he was admitted to the hospital in July 2006 he reported that he had run out of his medications a few days earlier (Exhibit 9F/21).

Plaintiff argues that the ALJ improperly focused on plaintiff's inability to afford medications. Plaintiff's argument, in its entirety, is as follows:

The inability to afford prescribed treatment is among the circumstances that justify the failure to obtain it. Gamble v. Chater, 68 F.3d 319, 322 (9th Cir. 1995). Here, the ALJ apparently discredited Plaintiff for not refilling his prescriptions, including Plaintiff's prescription for home oxygen therapy. CT 17. Since Plaintiff established that he was impoverished and therefore unable to afford these prescriptions, the ALJ used this basis improperly. CT 64-65.

Plaintiff does not challenge any of the other reasons the ALJ provided for determining that plaintiff's testimony was not credible.

As the ALJ noted, plaintiff's credibility regarding debilitating shortness of breath is belied by his daily activity through July 2006 of smoking cigarettes, marijuana, and cocaine. This, in and of itself, constitutes a sufficient reason to reject plaintiff's testimony. To the extent plaintiff contends that he was still disabled due to COPD symptoms even after he quit smoking and using drugs in July 2006, plaintiff has presented no objective medical evidence to this effect. Therefore, his claim of debilitating symptoms after July 2006 are unsupported by the record.

Turning to the ALJ's comments regarding plaintiff's medications, plaintiff misreads the ALJ's decision. According to plaintiff, the ALJ was commenting on a failure to follow a prescribed course of treatment as inconsistent with plaintiff's testimony of debilitating COPD symptoms. This is not how the court reads the decision. In particular, the ALJ first noted that plaintiff testified that he could not go anywhere without his oxygen mask and then contrasted this testimony with plaintiff's ability to function for several days on various occasions between running out of oxygen and eventually seeking treatment. Thus, the ALJ was not commenting on plaintiff's failure to take medication, but was commenting on the inconsistency between plaintiff's statement that he could not go anywhere without his oxygen and his actual ability to function without oxygen.

For these reasons, the court finds no error in the ALJ's credibility analysis.

C. Lay Witness Testimony

In determining whether a claimant is disabled, an ALJ generally must consider lay witness testimony concerning a claimant's ability to work. See Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993); 20 C.F.R. §§ 404.1513(d)(4) & (e), 416.913(d)(4) & (e). Indeed, "lay testimony as to a claimant's symptoms or how an impairment affects ability to work is competent evidence . . . and therefore cannot be disregarded without comment." See Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). Consequently, "[i]f the ALJ wishes to discount the testimony of lay witnesses, he must give reasons that are germane to each witness." Dodrill, 12 F.3d at 919.

The ALJ, however, need not discuss all evidence presented. See Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). Rather, he must explain why "significant probative evidence has been rejected." Id. (citing Cotter v. Harris, 642 F.2d 700, 706 (3d Cir.1981). Applying this standard, the court held that the ALJ properly ignored evidence which was neither significant nor probative. See id. at 1395. As to a letter from a treating psychiatrist, the court reasoned that, because the ALJ must explain why he rejected uncontroverted medical evidence, the ALJ did not err in ignoring the doctor's letter which was controverted by other medical evidence considered in the decision. See id. As to lay witness testimony concerning the plaintiff's mental functioning as a result of a second stroke, the court concluded that the evidence was properly ignored because it "conflicted with the available medical evidence" assessing the plaintiff's mental capacity. Id.

In Stout v. Commissioner, the Ninth Circuit recently considered an ALJ's silent disregard of lay witness testimony. See 454 F.3d 1050, 1053-54 (9th Cir. 2006). The lay witness had testified about the plaintiff's "inability to deal with the demands of work" due to alleged back pain and mental impairments. Id. The witnesses, who were former co-workers testified about the plaintiff's frustration with simple tasks and uncommon need for supervision. See id. Noting that the lay witness testimony in question was "consistent with medical evidence," the court in Stout concluded that the "ALJ was required to consider and comment upon the uncontradicted lay testimony, as it concerned how Stout's impairments impact his ability to work." Id. at 1053. The Commissioner conceded that the ALJ's silent disregard of the lay testimony contravened Ninth Circuit case law and the controlling regulations, and the Ninth Circuit rejected the Commissioner's request that the error be disregarded as harmless. See id. at 1054-55. The court concluded:

Because the ALJ failed to provide any reasons for rejecting competent lay testimony, and because we conclude that error was not harmless, substantial evidence does not support the Commissioner's decision . . .

Id. at 1056-67.

From this case law, the court concludes that the rule for lay witness testimony depends on whether the testimony in question is controverted or consistent with the medical evidence. If it is controverted, then the ALJ does not err by ignoring it. See Vincent, 739 F.2d at 1395. If lay witness testimony is consistent with the medical evidence, then the ALJ must consider and comment upon it. See Stout, 454 F.3d at 1053. However, the Commissioner's regulations require the ALJ consider lay witness testimony in certain types of cases. See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); SSR 88-13. That ruling requires the ALJ to consider third-party lay witness evidence where the plaintiff alleges pain or other symptoms that are not shown by the medical evidence. See id. Thus, in cases where the plaintiff alleges impairments, such as chronic fatigue or pain (which by their very nature do not always produce clinical medical evidence), it is impossible for the court to conclude that lay witness evidence concerning the plaintiff's abilities is necessarily controverted such that it may be properly ignored. Therefore, in these types of cases, the ALJ is required by the regulations and case law to consider lay witness evidence.

Plaintiff argues:

Here, Pastor Melvin L. McCoy and Executive Director Paul Ridgeway from Plaintiff's church submitted letters attesting to Plaintiff's shortness of breath, need for an oxygen tank, and difficulty moving about. Pastor McCoy even testified that Plaintiff has difficulty simply sitting and holding the fund-raising bucket. This is proper, non-medical, lay evidence and should have been evaluated in the ALJ's decision. Thus, the ALJ violated the requirement of Dodrill and Plaintiff should be entitled to a new hearing. CT 64-65.

The court finds that plaintiff's argument is conclusory and unpersuasive. In particular, plaintiff does not explain why the ALJ was required to consider the lay testimony at issue and the court concludes that there was no such requirement in this case. As indicated above, the ALJ need not discuss all the evidence presented. Where lay evidence is controverted by the medical evidence, it is considered neither significant nor probative. Here, for example, Mr. McCoy and Mr. Ridgeway stated in October 2006 that plaintiff could not walk even short distances. However, in March 2006, Dr. Gollub opined that plaintiff could stand and/or walk for at least two hours. In September 2005, Dr. Sharma concluded that plaintiff could walk for up to six hours a day, and Dr. Fountaine reached the same conclusion in October 2005.

Even if the ALJ erred by not commenting on the lay witness statements, any error was harmless. The Ninth Circuit has applied harmless error analysis in social security cases in a number of contexts. For example, in Stout, 454 F.3d at 1056, the court stated that the ALJ's failure to consider uncontradicted lay witness testimony could only be considered harmless ". . . if no reasonable ALJ, when fully crediting the testimony, could have reached a different disability determination." See also Robbins v. Social Security Administration, 466 F.3d 880, 885 (9th Cir. 2006) (citing Stout, 454 F.3d at 1056). Similarly, in Batson v. Commissioner of Social Security, 359 F.3d 1190 (9th Cir. 2004), the court applied harmless error analysis to the ALJ's failure to properly credit the claimant's testimony. Specifically, the court held:

However, in light of all the other reasons given by the ALJ for Batson's lack of credibility and his residual functional capacity, and in light of the objective medical evidence on which the ALJ relied there was substantial evidence supporting the ALJ's decision. Any error the ALJ may have committed in assuming that Batson was sitting while watching television, to the extent that this bore on an assessment of ability to work, was in our view harmless and does not negate the validity of the ALJ's ultimate conclusion that Batson's testimony was not credible.

Id. at 1197 (citing Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990)).

In Curry, the Ninth Circuit applied the harmless error rule to the ALJ's error with respect to the claimant's age and education.

The harmless error standard was recently applied in Carmickle v. Commissioner, 533 F.3d 1155 (9th Cir. 2008), to the ALJ's analysis of a claimant's credibility. Citing Batson, the court stated: "Because we conclude that . . . the ALJ's reasons supporting his adverse credibility finding are invalid, we must determine whether the ALJ's reliance on such reasons was harmless error." See id. at 1162. The court articulated the difference between harmless error standards set forth in Stout and Batson as follows:

. . . [T]he relevant inquiry [under the Batson standard] is not whether the ALJ would have made a different decision absent any error. . . it is whether the ALJ's decision remains legally valid, despite such error. In Batson, we concluded that the ALJ erred in relying on one of several reasons in support of an adverse credibility determination, but that such error did not affect the ALJ's decision, and therefore was harmless, because the ALJ's remaining reasons and ultimate credibility determination were adequately supported by substantial evidence in the record. We never considered what the ALJ would do if directed to reassess credibility on remand -- we focused on whether the error impacted the validity of the ALJ's decision. Likewise, in Stout, after surveying our precedent applying harmless error on social security cases, we concluded that "in each case, the ALJ's error . . . was inconsequential to the ultimate non-disability determination."

Our specific holding in Stout does require the court to consider whether the ALJ would have made a different decision, but significantly, in that case the ALJ failed to provide any reasons for rejecting the evidence at issue. There was simply nothing in the record for the court to review to determine whether the ALJ's decision was adequately supported. Carmickle, 533 F.3d at 1162-63 (emphasis in original; citations omitted).

Thus, where the ALJ's errs in not providing any reasons supporting a particular determination, the error is only harmless if the ultimate disability conclusion is invalid because a reasonable ALJ would have reached a different conclusion had the error not occurred. Otherwise, an ALJ's error is harmless if it is inconsequential to the ultimate conclusion regarding disability.

In this case, any possible error would stem from the ALJ's silent disregard of the third-party statements from Mr. McCoy and Mr. Ridgeway. Because there is no analysis to review, the Stout standard applies and the error is harmless if a reasonable ALJ would have reached a different conclusion had the error not occurred. Applying this standard, the court finds that no reasonable ALJ would have reached a different disability conclusion even had the lay witness statements been considered. As discussed above, the lay witness statements were contradicted by all the medical opinions as to plaintiff's functional capacity.

For all these reasons, the court does not agree that a remand is necessary to allow the agency to consider the lay witness statements.

D. Application of the Grids

The Medical-Vocational Guidelines ("Grids") provide a uniform conclusion about disability for various combinations of age, education, previous work experience, and residual functional capacity. The Grids allow the Commissioner to streamline the administrative process and encourage uniform treatment of claims based on the number of jobs in the national economy for any given category of residual functioning capacity. See Heckler v. Campbell, 461 U.S. 458, 460-62 (1983) (discussing creation and purpose of the Grids).

The Commissioner may apply the Grids in lieu of taking the testimony of a vocational expert only when the Grids accurately and completely describe the claimant's abilities and limitations. See Jones v. Heckler, 760 F.2d 993, 998 (9th Cir. 1985); see also Heckler v. Campbell, 461 U.S. 458, 462 n.5 (1983). Thus, the Commissioner generally may not rely on the Grids if a claimant suffers from non-exertional limitations because the Grids are based on exertional strength factors only.*fn2 See 20 C.F.R., Part 404, Subpart P, Appendix 2, § 200.00(b). "If a claimant has an impairment that limits his or her ability to work without directly affecting his or her strength, the claimant is said to have non-exertional . . . limitations that are not covered by the Grids." Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993) (citing 20 C.F.R., Part 404, Subpart P, Appendix 2, § 200.00(d), (e)). The Commissioner may, however, rely on the Grids even when a claimant has combined exertional and non-exertional limitations, if non-exertional limitations do not impact the claimant's exertional capabilities. See Bates v. Sullivan, 894 F.2d 1059, 1063 (9th Cir. 1990); Polny v. Bowen, 864 F.2d 661, 663-64 (9th Cir. 1988).

In cases where the Grids are not fully applicable, the ALJ may meet his burden under step five of the sequential analysis by propounding to a vocational expert hypothetical questions based on medical assumptions, supported by substantial evidence, that reflect all the plaintiff's limitations. See Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995). Specifically, where the Grids are inapplicable because plaintiff has sufficient non-exertional limitations, the ALJ is required to obtain vocational expert testimony. See Burkhart v. Bowen, 587 F.2d 1335, 1341 (9th Cir. 1988).

Upon determining that plaintiff is capable of sedentary work and that he cannot perform his more strenuous past relevant work, the ALJ applied the Grids as follows:

The burden shifts to the Commissioner at Step 5 of the sequential evaluation process to show that there are other jobs existing in significant numbers in the national economy which the claimant can perform consistent with his medically determinable impairments, functional limitations, age, education, and work experience. (citations omitted). The claimant is 40 years old and has been a "younger individual" at all relevant times. (citation omitted). He has a high school education. (citation omitted). With such a profile and past unskilled work, and with a residual functional capacity for sedentary work, Rule 201.27 of the Medical-Vocational Guidelines . . . directs a findings of "not disabled" here, and I so find.

Plaintiff argues that vocational expert testimony was required because his required oxygen tank use constituted a non-exertional limitation precluding application of the Grids. This argument is unpersuasive because there is no objective medical evidence establishing that plaintiff required the use of an oxygen tank.


Based on the foregoing, the court concludes that the Commissioner's final decision is based on substantial evidence and proper legal analysis. Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for summary judgment (Doc. 13) is denied;

2. Defendant's cross-motion for summary judgment (Doc. 14) is granted; and

3. The Clerk of the Court is directed to enter judgment and close this file.

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