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Ford v. Astrue


February 22, 2010


The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge


Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS HEREBY ORDERED that the decision of the Commissioner of the Social Security Administration is reversed and the matter is remanded for immediate payment of benefits.


Plaintiff filed a Complaint on August 7, 2009, seeking review of the Commissioner's denial of benefits. The parties filed a consent to proceed before a United States Magistrate Judge on September 1, 2009.

Plaintiff filed a "Motion for Summary Judgment on January 14, 2010. Defendant filed a "Memorandum of Points and Authorities in Support of Defendant's Cross-Motion for Summary Judgment and in Opposition to Plaintiff's Motion for Summary Judgment" on February 16, 2010. The Court has taken both motions under submission without oral argument. See L.R. 7-15; "Order," filed August 11, 2009.


In 2000, Plaintiff suffered from non-Hodgkin's lymphoma in the area of his left eye (Administrative Record ("A.R.") 9, 20). "In August 2000, [Plaintiff] underwent left frontotemporal craniotomy, left orbital osteotomy, subtotal resection of intraorbital and cavernous sinus tumor, decompression of the left optic nerve and internal carotid artery, decompression of the left third nerve, correction of exophthalmos, and Hemovac drain" (A.R. 20). At the time of this operation, Plaintiff was in prison. Id. Plaintiff then underwent chemotherapy, radiation, and, eventually, another surgery during which his left eye was removed (A.R. 9, 186).

After release from prison, Plaintiff applied for disability benefits beginning May 15, 2003 (A.R. 62-64). In 2003, Plaintiff signed a written statement reporting headache pain and other limiting symptoms of allegedly disabling frequency and severity (A.R. 86-91). Plaintiff similarly testified in 2005 to pain and other symptomatology of allegedly disabling severity (A.R. 186-97). In 2003, Plaintiff's wife signed a written "Function Report" containing statements potentially corroborative of Plaintiff's complaints (A.R. 92-99).

Plaintiff suffered a recurrence of lymphoma no later than June, 2005 (A.R. 9). The Administration found Plaintiff disabled beginning June 1, 2005, but also found Plaintiff not disabled between May 15, 2003 and May 31, 2005 (A.R. 8-10, 201-04, 210-16). In the process of denying benefits for the period prior to June 1, 2005, the Administrative Law Judge ("ALJ") found Plaintiff's testimony and his wife's written statements not to be credible (A.R. 21, 213-15).


Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006).


The Administration committed multiple errors in evaluating the credibility of Plaintiff and Plaintiff's wife. Under the particular circumstances of this case, reversal and remand with a directive for the immediate payment of benefits is appropriate.

The ALJ found that Plaintiff's "medically determinable impairments could reasonably be expected to produce the alleged symptoms, but that [Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible" (A.R. 214). To support such a credibility determination, an ALJ must make "specific, cogent" findings, supported in the record. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996); see Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990); Varney v. Secretary, 846 F.2d 581, 584 (9th Cir. 1988).*fn1 The ALJ failed to do so in the present case.

The ALJ recited the general factors appropriate for consideration in evaluating a claimant's credibility (A.R. 213-14). However, the ALJ made no specific findings in support of the rejection of Plaintiff's credibility other than, arguably, a finding that the medical evidence failed fully to support Plaintiff's alleged symptoms and, arguably, a finding that Plaintiff's daily activities were inconsistent with Plaintiff's alleged disability (A.R. 21-22, 213-15). Neither arguable finding is legally or factually sufficient.

With regard to the first arguable finding, the failure of the medical record to corroborate fully a claimant's subjective symptom testimony is not, by itself, a legally sufficient basis for rejecting such testimony. Rollins v. Massanari, 268 F.3d 853, 856 (9th Cir. 2001); Varney v. Secretary, 846 F.2d 581, 584 (9th Cir. 1988). Moreover, the ALJ materially mischaracterized the medical evidence. For example, the ALJ stated that "records submitted by Kaiser Permanente document that claimant is status post left eye enucleation but has experienced no return of his pain (Exhibits 15F through 18F)" (A.R. 215). In fact, Exhibit 16F documents Plaintiff's continuing pain throughout 2000-2007, as well as his continuing use of Vicodin for pain. See, e.g., A.R. 304 (headaches almost daily since Plaintiff's 2000 surgery; headaches start with "sharp lightening-like pains").

With respect to the second arguable finding, the ALJ again mischaracterized the record. According to the ALJ, Plaintiff reported in 2003 "that he prepared his own meals," and testified in 2005 that he "performed light housework" (A.R. 214). In actuality, Plaintiff reported in 2003 that his wife and family prepared and cooked his meals (although Plaintiff conceded he could microwave leftovers) (A.R. 87). Plaintiff did not testify in 2005 that he "performed light housework." Plaintiff couched his testimony regarding his domestic work in terms of vague attempts rather than actual accomplishments. "I take my son to school, to preschool and I come back home, try to straighten up, take a nap. Pick him back up and try to go over his homework with him and do a few house chores and my oldest son helps me out, he really helps me out, my oldest son. He cuts the grass and everything. I sit out there with him. I go to church, that's about it" (A.R. 190). In any event, the few and limited daily activities

Plaintiff reported are not inconsistent with the conclusion that he suffered from disabling symptomatology 2003-2005. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (the "mere fact that a plaintiff has carried on certain daily activities . . . does not in any way detract from [his or] her credibility as to [his or] her overall disability") (citations and quotations omitted); Vertigan v. Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001) ("the mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from her credibility as to her overall disability."); Gallant v. Heckler, 753 F.2d 1450, 1453-55 (9th Cir. 1984) (even where the claimant could cook for himself and his family and wash dishes, such daily activities were not inconsistent with disabling pain).

The Administration similarly erred in evaluating the credibility of Plaintiff's wife. As the Court advised in a previous order remanding this same case:

In evaluating the credibility of a claimant's assertions of functional limitations, the ALJ must consider lay witnesses' reported observations of the claimant. See Regennitter v. Commissioner, 166 F.3d 1294, 1298 (9th Cir. 1999). "[F]riends and family members in a position to observe a claimant's symptoms and daily activities are competent to testify as to [the claimant's] condition." Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993); 20 C.F.R. § 404.1513(d)(4) (evidence from "other non-medical sources" such as "spouses, parents and other caregivers" may be used "to show the severity of your impairment(s) and how it affects your ability to work").

"[T]he ALJ can reject the testimony of lay witnesses only if he [or she] gives reasons germane to each witness whose testimony he [or she] rejects." Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). A conflict with the medical evidence, for example, can be a "germane reason" to reject the testimony of a lay witness. See Lewis v. Apfel, 236 F.3d 503 (9th Cir. 2001). The mere fact that a witness is a family member, however, is not a sufficient reason to reject the witness' testimony. See Smolen, 80 F.3d at 1289; Regennitter, 166 F.3d at 1298.

Most of the above-cited authorities speak in terms of the "testimony" of lay witnesses. The standards discussed in these authorities, however, would appear equally applicable to the written statements submitted in this case. Cf. Schneider v. Commissioner, 223 F.3d 968, 974-75 (9th Cir. 2000) (ALJ should have considered letters submitted by claimant's friends and ex-employers in evaluating severity of claimant's functional limitations) (A.R. 266-67).

The ALJ stated legally invalid reasons for rejecting the credibility of Plaintiff's wife. The ALJ stated, "It is reasonable to infer that the claimant's wife has an economic interest in the claimant's disability" (A.R. 215). The almost universal circumstance of a wife having a common economic interest with a husband is a legally insufficient basis for rejecting a wife's credibility. See Valentine v. Commissioner Social Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (rejecting lay witness observations because the witness is an "interested party" runs afoul of Ninth Circuit precedent: "Such a broad rationale for rejection contradicts our insistence that, regardless of whether they are interested parties, 'friends and family members in a position to observe a claimant's symptoms and daily activities are competent to testify as to [his or] her condition.'") (quoting Dodrill, 12 F.3d at 918-19); see also Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996); Regennitter v. Commissioner, 166 F.3d 1294, 1298 (9th Cir. 1999); compare Valentine v. Commissioner, 574 F.3d at 694 ("evidence that a specific spouse exaggerated a claimant's symptoms in order to get access to his disability benefits, as opposed to being an 'interested party' in the abstract, might suffice to reject that spouse's testimony") (dicta). The ALJ in the present case cited no specific evidence of exaggeration or mercenary motivation by Plaintiff's wife.

The ALJ also suggested that the statements of Plaintiff's wife were not credible because the statements assertedly were inconsistent with Plaintiff's 2003 statements and 2005 testimony (A.R. 214). In fact, a comparison of Plaintiff's 2003 statements and 2005 testimony with his wife's 2003 statements reveals no significant inconsistencies (A.R. 86-99, 187-98). The Court also observes that the ALJ mischaracterized the wife's statements. According to the ALJ, the wife "said that her husband was able to perform household chores . . ." (A.R. 214). In fact, the wife stated "He tries to do chores . . . try to do cleaning . . . never complete chores . . ." (A.R. 92, 94) (emphasis added).

When there exists error in an administrative determination, "the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." INS v. Ventura, 537 U.S. 12, 16 (2002) (citations and quotations omitted). Yet, "[i]n cases where there are no outstanding issues that must be resolved before a proper disability determination can be made, and where it is clear from the administrative record that the ALJ would be required to award benefits if the claimant's excess pain testimony were credited, we will not remand solely to allow the ALJ to make specific findings regarding that testimony." Varney v. Secretary, 859 F.2d 1396, 1401 (9th Cir. 1988); accord Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004); see Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir. 2004) (remand for award of benefits is appropriate where "it is clear from the record that the ALJ would be required to find [the claimant] disabled if [the claimant's] testimony were credited"); Ghokassian v. Shalala, 41 F.3d 1300, 1304 (9th Cir. 1994) ("[G]enerally, we direct the award of benefits in cases where no useful purpose would be served by further administrative proceedings, or where the record has been thoroughly developed") (citations and quotations omitted).

Under the rare and unusual circumstances of this protracted case, reversal with a directive for the award of benefits is appropriate. The record has been thoroughly developed. It is clear from that record that the Administration would be required to find Plaintiff disabled during 2003-2005 if Plaintiff's testimony and statements were credited. The ALJ failed to make adequate findings to reject Plaintiff's credibility, committing legal and factual errors in the process. The ALJ similarly committed legal and factual errors in rejecting the credibility of Plaintiff's wife. Finally, the Court previously remanded this same case for further administrative proceedings on the issue of the credibility of Plaintiff's wife. The Court should not be required to provide the Administration with a third opportunity to address the same issue. See Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) ("Allowing the Commissioner to decide the issue again would create an unfair 'heads we win; tails, let's play again' system of disability benefits adjudication. . . . Remanding a disability claim for further proceedings can delay much needed income for claimants who are unable to work and are entitled to benefits, often subjecting them to tremendous financial difficulties while awaiting the outcome of their appeals and proceedings on remand") (citations and quotations omitted); see also Brown v. Bowen, 682 F. Supp. 858, 862 (W.D. Va. 1988) (rejecting argument that the court should give the Administration a third opportunity correctly to resolve a particular issue in the disability analysis); Thornton v. Heckler, 609 F. Supp. 1185, 1190 n.9 (E.D.N.Y. 1985) ("a remand would only cause delay and give the Secretary a 'last chance' to meet the burden of proof which she has twice failed to meet").


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