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Luckett v. Astrue

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 27, 2010

JONATHAN LUCKETT, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's application for Disability Insurance Benefits ("DIB") and Child Insurance Benefits under Title II of the Social Security Act ("Act"), and Supplemental Security Income ("SSI") under Title XVI of the Act.*fn1 (Pl.'s Mot. for Summ. J., Dkt. No. 23.) Plaintiff contends that the Administrative Law Judge's ("ALJ") and Appeals Council's decisions are not supported by substantial evidence or are based on legal error, and that the ALJ and/or the Appeals Council specifically erred by: (1) failing to accurately characterize, or omitting discussion of, evidence in the record and opinions offered by physicians and psychologists in this case, including Deborah Von Bolschwing, Ph. D. ("Dr. Von Bolschwing"), Madelaine Aquino, M.D. ("Dr. Aquino"), Robert L. Morgan, Ph. D. ("Dr. Morgan"), William Egelston, M.D. ("Dr. Egelston"), and Norman A. Davis, P.S.C. ("Dr. Davis"); (2) erroneously concluding that plaintiff's mental impairment did not meet or equal a medical listing at step three of the sequential analysis; (3) improperly rejecting plaintiff's testimony as less than credible; (4) improperly rejecting lay witness testimony regarding plaintiff's functional limitations; (5) failing to evaluate the impact of plaintiff's obesity under Social Security Ruling ("SSR") 02-1p, 67 Fed. Reg. 57859-02 (Sept. 12, 2002); and (6) failing to properly assess plaintiff's residual functional capacity, which resulted in the ALJ posing legally inadequate hypothetical questions to the vocational expert ("VE"). The Commissioner filed a written opposition to plaintiff's motion.*fn2 (Dkt. No. 27.) For the reasons stated below, the court will grant plaintiff's motion for summary judgment in part and remand this matter for further proceedings.

I. BACKGROUND*fn3

Plaintiff was born on June 26, 1983, completed high school and some community college courses, although he had been placed in special education classes since childhood. (See Administrative Transcript ("AT") 39, 44, 70.) Plaintiff claims to be afflicted with Asperger's Syndrome,*fn4 a social phobia, obsessive tendencies, and other mental and behavioral problems.

(AT 45, 52.) He also allegedly suffers from an alleged congenital defect involving the bones in his left foot, for which he has undergone multiple surgeries. (AT 45-46, 322.)

A. Procedural Background

On May 19, 2004, plaintiff filed applications for DIB, child insurance benefits,*fn5 and SSI benefits, alleging an onset date of June 26, 1983, plaintiff's date of birth. (See AT 128-31, 342-43.) The Social Security Administration denied plaintiff's application initially and upon reconsideration. (AT 81-84, 96-100, 102-07.) Plaintiff requested a hearing before an ALJ, and the ALJ conducted an initial hearing regarding plaintiff's applications on January 20, 2006. (AT 34-62, 108.) In a decision dated March 24, 2006, the ALJ found that plaintiff was not disabled within the meaning of the Act. (See AT 88-95.)

Plaintiff requested that the Appeals Council review the ALJ's decision on the basis of new evidence, and the Appeals Council granted plaintiff's request and accepted that additional evidence. (AT 118, 122-23.) On November 29, 2006, the Appeals Council remanded the matter to the ALJ for a supplemental hearing and expansion of the record. (AT 125-26.) Of particular relevance to plaintiff's claims of error before this court, the Appeals Council's order specifically noted that although the record indicated that plaintiff was obese, the ALJ's decision did not include an "evaluation of obesity consistent with SSR 02-1p." (AT 125.)

The ALJ conducted a supplemental hearing at which plaintiff and the VE testified. (AT 63-80.) In a decision dated November 27, 2007, the ALJ concluded that plaintiff was not disabled within the meaning of the Act because, based on the VE's testimony, plaintiff could perform jobs that existed in significant numbers in the national economy.*fn6 (See AT 15-24.)

The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AT 7-9.) Plaintiff had requested review of the ALJ's November 2007 decision on the grounds that the ALJ failed to comply with the Appeals Council's remand order and committed several other errors, and on the basis of new medical evidence in the form of a medical opinion issued by Dr. Davis, a licensed psychologist. (See AT 10, 11, 344-51.) The Appeals Council's denial of review stated, in relevant part: "We found no reason under our rules to review the [ALJ's] decision. Therefore, we have denied your request for review." (AT 7.) It did not address in detail any of the claimed errors and did not specifically reject any portion of Dr. Davis's opinion. The decision did state that the Appeals Council considered the additional evidence submitted by plaintiff, but that it did "not provide a basis for changing the [ALJ's] decision." (AT 7-8.)

Plaintiff subsequently filed this action.

B. Summary of the ALJ's Findings

The ALJ conducted the five-step, sequential evaluation and concluded that plaintiff was not disabled within the meaning of the Act. At step one, found that plaintiff had not engaged in substantial gainful employment activity since June 26, 1983, the alleged date of onset. (AT 17.) At step two, the ALJ concluded that suffered from the following "severe" impairments: "pervasive developmental delay, status post left ankle surgery and obesity." (AT 17.)

At step three, the ALJ determined that plaintiff's impairments, whether alone or in combination, did not meet or medically equal any impairment listed in the applicable regulations, 20 C.F.R. Part 404, Subpart P, Appendix 1, Parts A & B. (AT 19.) Relevant here, the ALJ concluded that plaintiff's mental impairment did not meet or medically equal Listing 12.10, which addresses "Autistic disorder and other pervasive developmental disorders."*fn7 In doing so, he rejected Dr. Morgan's treating opinion that plaintiff met the criteria of Listing 12.10. (AT 22, 311.)

The ALJ further determined that plaintiff had the residual functional capacity ("RFC") to "perform sedentary work except he should not be required to operate foot controls with the left lower extremity. The claimant retains the ability to understand, remember and carry out simple job instructions." (AT 20.)

The ALJ found at step four that plaintiff had no past relevant work. (AT 22.) At step five, the ALJ concluded, in reliance on plaintiff's RFC and the VE's testimony, that plaintiff was not "disabled" within the meaning of the Act because plaintiff was able to perform the following jobs in significant numbers in the national economy: office helper, agricultural sorter, and small parts assembler. (AT 22-23.)

II. STANDARDS OF REVIEW

The court reviews the Commissioner's decision to determine whether it is (1) free of legal error, and (2) supported substantial evidence in the record as a whole. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). This standard of review has been described as "highly deferential." Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). "'Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews, 53 F.3d at 1039; see also Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ("[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence."). Findings of fact that are supported by substantial evidence are conclusive. 42 U.S.C. § 405(g); see also McCarthy v. Apfel, 221 F.3d 1119, 1125 (9th Cir. 2000). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Bray, 554 F.3d at 1222 (citing Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)); see also Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("'Where evidence is susceptible to more than one rational interpretation,' the ALJ's decision should be upheld.") (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). However, the court "must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Ryan, 528 F.3d at 1198 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)).

III. ANALYSIS

A. Whether the ALJ Impermissibly Failed To Characterize Evidence in the Record

Plaintiff claims that the ALJ erred by omitting from his "summary of the medical evidence" several pieces of evidence and/or functional limitations assessed by plaintiff's treating, examining, or non-examining physicians. (See Pl.'s Mot. for Summ. J. at 21-25.) Each piece of evidence and opinion will be addressed in turn below.

1. The 2004 Report and 2006 Letter from United Cerebral Palsy Plaintiff contends that the ALJ erred by omitting certain materials from United Cerebral Palsy ("UCP") in his summary of medical evidence. UCP had performed a nine-day assessment of plaintiff's work abilities in July 2004, and plaintiff later attempted to find suitable work through UCP. Specifically, plaintiff argues that the ALJ failed to discuss: (1) portions of a "Performance and Observations" report completed by a job coach with UCP in 2004; and (2) a letter from UCP, dated January 10, 2006. (Pl.'s Mot. for Summ. J. at 21-22; AT 284-85, 293.)

Although an ALJ is required to develop the record and interpret medical evidence, and cannot selectively analyze the evidence, he or she "does not need to discuss every piece of evidence" in order to demonstrate that such evidence was considered and credited. See Howard ex. rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). "However, if the ALJ rejects significant probative evidence, he [or she] must explain why." Lusardi v. Astrue, 350 Fed. App'x 169, 173 (9th Cir. 2009) (citing Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984)).

The ALJ discussed portions of the 2004 report from UCP in his decision. (AT 18.) The ALJ stated:

A performance and observation report from United Cerebral Palsy, where the claimant was sent to work, stated that he had the ability to learn. The evaluator saw no reason why the claimant could not work without the proper training and coaching although he may need some accommodation, particularly for his bad feet. The claimant was disciplined enough to get to work on time and perform his assigned tasks.

(AT 18.)

Plaintiff contends, however, that the ALJ provided an incomplete summary of UCP's report and, essentially, that the ALJ painted a selective, rosy picture of the report. He alleges that the ALJ erred by not addressing the following portion of the report:

[Jonathan] had a great deal of trouble with his feet. It was very difficult for him to stand or move around a lot. Although, he did perform the tasks assigned to him; it was difficult for him. Stamina: His stamina was affected because of, 1, his bad feet and 2, his total lack of any work experience. He tired easily; and after four (4) hours he seemed to be extremely tired. After five (5) hours, he was even more tiered [sic]; by his own admission, at the end of the assessment he was exhausted.

(AT 284 (emphasis in original).) Plaintiff also notes the evaluator's assessment that plaintiff "performed most of these tasks [sic] some show of skill; however, he did need a great deal of instruction and coaching." (AT 284.)

Curiously, the Commissioner cursorily opposes plaintiff's argument only on the grounds that the positive portions of the 2004 report cited by the ALJ, and quoted above, are consistent with the opinions of the following mental health providers: (1) Dr. Von Bolschwing, an examining psychologist who evaluated plaintiff (AT 314-18); Philip M. Cushman, Ph. D., who performed psychological testing on plaintiff (AT 286-92); and Daniel Bruce, L.C.S.W., a licensed social worker whose work Dr. Cushman reviewed. (Def.'s Opp'n at 3-4.) The Commissioner does not address the portion of the UCP report cited by plaintiff and does not argue that the ALJ was not required to address this portion of the report because it was not significant or probative. The Commissioner appears to have ignored plaintiff's argument.

The undersigned concludes that the evidence cited by plaintiff is significant and appears to be probative of plaintiff's physical abilities and ability to perform in a work setting. At a minimum, it offers information regarding plaintiff's stamina over the course of a workday. However, the ALJ did not address these portions of the report and implicitly rejected the limitations stated therein but without any explanation. Accordingly, the ALJ erred, and the undersigned will remand this matter for further proceedings including re-consideration of the 2004 UCP report.

Plaintiff also claims that the ALJ erred by not referencing or discussing a letter from UCP, dated January 10, 2006, which concluded that despite plaintiff's attempts to find work through UCP's Employment Preparation Program, he "was unable to obtain suitable employment that would accommodate his limitations."*fn8 (AT 293.) The Commissioner does not address this argument in his opposition. Nevertheless, the undersigned concludes that the ALJ did not err by omitting any reference to this 2006 letter. This conclusory letter is not probative of plaintiff's functional limitations or ability to do work. It states that plaintiff was unable to find suitable work, but does not explain the possible reasons for this inability, or which limitations were the likely cause. Accordingly, the ALJ did not err in omitting the 2006 letter from his summary of evidence.

2. The Opinions of Drs. Von Bolschwing, Aquino, and Morgan

Plaintiff further contends that the ALJ erroneously disregarded without explanation certain functional limitations found by: Dr. Von Bolschwing, an examining psychologist (AT 314-21); Dr. Aquino, an examining physician (AT 322-37); and Dr. Morgan, an examining psychologist (AT 301-12). The ALJ summarized, at least in part, all of these examining providers' assessments (see AT 18-19), and relied on the opinions of Drs. Von Bolschwing and Aquino in assessing plaintiff's RFC, stating:

I give substantial weight to the assessments of the State Agency medical consultants to the effect that plaintiff can perform simple, repetitive tasks at the sedentary exertional level (16F, 17F, 18F). These assessments are wholly consistent with the weight of the evidence of record and rendered by physicians, who are experts in the evaluation of the medical issues in disability claims under the Social Security Act.

(AT 22.)

Plaintiff contends, however, that the ALJ selectively ignored limitations found by Drs. Von Bolschwing, Aquino, and Morgan without providing reasons for rejecting those limitations. He argues, in essence, that as a result of the omissions of these limitations, the ALJ's RFC was incomplete and the ALJ's determination that plaintiff did not meet or equal Listing 12.10 was erroneous. Specifically, plaintiff contends that the ALJ rejected a portion of Dr. Von Bolschwing's opinion that plaintiff had "marked" restrictions with respect to his ability to "[r]espond appropriately to usual work situations and to changes in a routine work setting." (AT 320.) Plaintiff further claims that the ALJ rejected portions of Dr. Aquino's medical opinion, which opined that as a result of his ankle impairment, plaintiff: (1) was limited in his ability to stand/walk for 15 minutes at a time for a total of less than two hours during an eight-hour workday, and (2) would need to elevate his leg periodically. (AT 325, 327.) Plaintiff also argues that the ALJ "completely disregarded" Dr. Morgan's opinion that plaintiff had a "marked" impairment insofar as his ability to maintain social functioning was concerned, and the Global Assessment of Functioning ("GAF") score of 50 assigned by Dr. Morgan.*fn9 (AT 311, 312.)

The medical opinions of three types of medical sources are recognized in social security cases: "(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians)." Lester, 81 F.3d at 830. Generally, a treating physician's opinion should be accorded more weight than opinions of doctors who did not treat the claimant, and an examining physician's opinion is entitled to greater weight than a non-examining physician's opinion. Id. Where a treating or examining physician's opinion is uncontradicted by another doctor, the Commissioner must provide "clear and convincing" reasons for rejecting the treating physician's ultimate conclusions. Id. If the treating or examining doctor's medical opinion is contradicted by another doctor, the Commissioner must provide "specific and legitimate" reasons for rejecting that medical opinion, and those reasons must be supported by substantial evidence in the record. Id. at 830-31; accord Valentine, 574 F.3d at 692. "'The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating [her] interpretation thereof, and making findings.'" Tommasetti, 533 F.3d at 1041 (modification in original, citation and quotation marks omitted).

Here, the ALJ adopted portions of Dr. Von Bolschwing's and Dr. Aquino's opinions, but tacitly rejected the portions cited by plaintiff without explanation. The assigned RFC did not incorporate Dr. Aquino's assessed limitations related to plaintiff's ability to stand/walk and his need to elevate his leg. Additionally, the RFC does not incorporate Dr. Von Bolschwing's observation of plaintiff's marked difficulty with responding appropriately to usual work situations and to changes in a routine work setting. The ALJ did not otherwise address the implicit rejection of these limitations in his decision. Although an ALJ need not adopt or discuss every portion of a doctor's opinion, the undersigned cannot deduce what treatment the ALJ gave to these limitations. On the particular facts of this case, the undersigned is left with the feeling that the ALJ selectively adopted portions of the opinions that would favor a finding of "not disabled," while selectively ignoring portions that might favor plaintiff. This may well not be the case, but the undersigned cannot so conclude on this record. Accordingly, the undersigned will remand this matter for further evaluation and discussion of the limitations raised by plaintiff.

Conversely, the ALJ did not err with respect to consideration of Dr. Morgan's opinion. Dr. Morgan had concluded that plaintiff met the criteria in Listing 12.10, which would render plaintiff presumptively disabled. (AT 311.) The ALJ rejected Dr. Morgan's conclusion in this regard, stating: "I give little weight to the assessment of Robert L. Morgan, Ph.D., to the effect that the claimant meets the criteria of listing 12.10.... Dr. Morgan's own evaluation of the severity of the claimant's limitations does not support that finding as the claimant is found with only one marked area of impairment." (AT 22.) This statement indicates that the ALJ considered and did not reject Dr. Morgan's assessment that plaintiff had marked difficulty with respect to his ability maintain social functioning. The ALJ noted "one marked area of impairment." Thus, the ALJ did not ignore or reject Dr. Morgan's assessment as alleged by plaintiff and, as a result, did not err.

3. Dr. Egelston's Opinion

Plaintiff also alleges that the ALJ erred by rejecting the opinion of an orthopedic surgeon, William Egelston, M.D., without addressing or expressly rejecting that opinion in his decision. (Pl. Mot. for Summ. J. at 24.) Dr. Egelston completed a "Functional Capacities Evaluation" form, dated December 19, 2006, based on an examination of plaintiff. (AT 313.) He noted that plaintiff had left foot congenital coalition of the subtalar joint and that although plaintiff had undergone surgery for that condition, some bone spurs remained at the site that possibly continued to cause symptoms at the site. He opined that plaintiff could work only four hours in an eight-hour workday and could stand or walk for only five to ten minutes at a time during the workday. He also concluded that plaintiff could not use his left foot for "repeated movements." The ALJ did not address Dr. Egelston's opinion and, thus, offered no specific and legitimate reasons for rejecting it. This was error.

The Commissioner concedes that the ALJ "did not address" Dr. Egelston's opinion. (Def.'s Opp'n at 6.) Nevertheless, he attempts to save the ALJ's decision in two ways. First, the Commissioner offers several post-hoc justifications in support of the rejection of Dr. Egelston's opinion. (See id.) However, this court declines the invitation to review the Commissioner's after-the-fact reasons for rejecting Dr. Egelston's opinion because the court is constrained to review the reasons relied on by the ALJ. See Tommasetti, 533 F.3d at 1039 n.2 (refusing to consider a reason for discounting the plaintiff's credibility that was offered by the district court, but was not relied on by the ALJ); Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (stating that a reviewing court may only review the reasons provided by the ALJ in the disability determination and "may not affirm the ALJ on a ground upon which he did not rely"); Stout v. Comm'r, 454 F.3d 1050, 1054 (9th Cir. 2006) ("[W]e cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision" (citation and quotation marks omitted).); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (stating that the Court of Appeals could not rely on the independent findings of the district court, and stating that "[w]e are constrained to review the reasons the ALJ asserts"); Barbato v. Comm'r of Soc. Sec. Admin., 923 F. Supp. 1273, 1276 n.2 (C.D. Cal. 1996) (refusing to consider reasons for rejecting a medical opinion offered by the Commissioner in his motion for summary judgment that were not relied on by the ALJ); see also Ceguerra v. Sec'y of Health & Human Servs., 933 F.2d 735, 738 (9th Cir. 1991) ("A reviewing court can evaluate an agency's decision only on the grounds articulated by the agency."); Vista Hill Found., Inc. v. Heckler, 767 F.2d 556, 559 (9th Cir. 1985) (stating that "an agency's decision can be upheld only on a ground upon which it relied in reaching that decision").

Second, the Commissioner contends that any error resulting from the ALJ's silent rejection of Dr. Egelston's opinion was harmless "because it consisted of checked boxes on a form, did not involve detailed analysis, and was and [sic] inconsistent with the record as a whole, and, moreover, the ALJ and Dr. Aquino took into account Plaintiff's surgeries and limitations." (Def.'s Opp'n at 6-7.) The undersigned disagrees. Harmless error exists where it is "clear from the record that an ALJ's error was 'inconsequential to the ultimate non-disability determination.'" Robbins, 466 F.3d at 885 (citing Stout, 454 F.3d at 1055-56). The undersigned cannot conclude from the ALJ's decision and the remaining record that the ALJ's error was harmless. As an initial matter, case law in this Circuit supports the proposition that the silent rejection of a doctor's opinion is not harmless error. See Pham v. Astrue, 695 F. Supp. 2d 1027, 1031-32 (C.D. Cal. 2010) (concluding that the ALJ's failure to address medical opinions was legal error that was not harmless); cf. Stout, 454 F.3d at 1053 (holding that the ALJ's silent rejection of competent lay witness testimony was not harmless error). In any event, the undersigned cannot conclude that the ALJ's silent rejection of Dr. Egelston's opinion was inconsequential to the ultimate disability determination because Dr. Egelston clearly assessed limitations that would potentially alter the ALJ's RFC. Moreover, the Commissioner's harmless error argument requires that the court consider the Commissioner's post-hoc reasons for discounting Dr. Egelston's opinion, which the court declines to do.

B. Whether the Appeals Council Erred In Rejecting Dr. Davis's Opinion

Plaintiff further contends that the Appeals Council erred by not providing specific and legitimate reasons for rejecting the opinion of Dr. Davis (AT 348-51), which plaintiff submitted after the ALJ issued his second decision finding that plaintiff was not disabled. Dr. Davis is a licensed clinical psychologist specializing in disability assessments, anxiety disorders, and depressive conditions. (AT 346.) In summarizing his examination results, Dr. Davis opined:

Mr. John Luckett (with information corroborated by Kathleen Luckett), a clinical interview, a Mental Status Examination, Behavioral Observations and the Asperger's Check-off Symptom list all converged upon the diagnosis of Asperger's Syndrome. This is a subtle yet severely incapacitating condition which renders Mr. Luckett incapable of gainful employment in my professional opinion as a Clinical Psychologist with over 4 years in the field of Developmental Disabilities and a total of 20 years in Clinical Practice.

(AT 347.)

The Appeals Council indicated in its "Notice of Appeals Council Action" that it had considered plaintiff's claims of error and Dr. Davis's newly offered opinion, but concluded that "this information does not provide a basis for changing the Administrative Law Judge's decision." (AT 7-8.) Thus, the Appeals Council denied plaintiff's request for review.*fn10

Decisions in this Circuit support the proposition that where the Appeals Council considers a treating doctor's opinion submitted after issuance of the ALJ's decision and rejects that opinion or denies review after consideration of that opinion, it must provide reasons for doing so consistent with the standards applicable to the rejection of medical opinions generally. See Ramirez v. Shalala, 8 F.3d 1449, 1453-54 (9th Cir. 1993) (holding that the ALJ and Appeals Council erred by failing to provide any reasons, let alone specific and legitimate reasons, for rejecting a treating physician's opinion); Brent v. Astrue, No. EDCV 09-519-MAN, 2010 WL 3521788, at *5-6 (C.D. Cal. Sept. 7, 2010) (unpublished) (concluding that the Appeals Council erred by summarily rejecting the later-submitted opinion of an examining physician without providing specific reasons supporting such rejection); Jenkins v. Astrue, No. EDCV 09-0158-JEM, 2010 WL 368877, at *4 (C.D. Cal. Jan. 27, 2010) (unpublished) ("The bald conclusion that Dr. Peterson's statement did not provide a basis for changing the ALJ's decision is legally insufficient. The Appeals Council should have set forth specific and legitimate reasons supported by substantial evidence for rejecting Dr. Peterson's statement or remanded the case back to the ALJ to consider it."); Castillo v. Astrue, No. CV 07-4744-RC, 2008 WL 4330253, at *4 (C.D. Cal. Sept. 18, 2008) (unpublished) (same); Siska v. Barnhart, No. C 00-4788 MMC, 2002 WL 31750220, at *5 (N.D. Cal. Dec. 4, 2002) (unpublished) ("[T]he Appeals Council considered the opinions of Dr. Chua and Cook, but found those opinions did not provide a basis for changing the ALJ's decision.... In so ruling, the Appeals Council did not provide any specific and legitimate reasons for its conclusion, and thus erred."); compare Jesus v. Astrue, No. EDCV 07-1247-MAN, 2009 WL 2900290, at *5-6 (C.D. Cal. Sept. 3, 2009) (unpublished) (concluding that the Appeals Council properly rejected a medical opinion submitted after entry of the ALJ's decision by offering specific and legitimate reasons for doing so).

Here, the Appeals Council provided a non-specific reason for disregarding Dr. Davis's opinion, which plaintiff reasonably characterizes as "boilerplate." The Appeals Council did not state, even in cursory terms, a specific reason for rejecting Dr. Davis's opinion. Accordingly, the Appeals Council erred and this matter will be remanded for further consideration of Dr. Davis's opinion.*fn11

C. Whether the ALJ Improperly Discounted Plaintiff's Testimony

Plaintiff also claims that the ALJ improperly found plaintiff to be less than entirely credible. In Lingenfelter v. Astrue, the Ninth Circuit Court of Appeals summarized the ALJ's task with respect to assessing a claimant's credibility:

To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis. 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. The claimant, however, need not show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom. Thus, the ALJ may not reject subjective symptom testimony... simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged.

Second, if the claimant meets this first test, and there is no evidence of malingering, the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so....

504 F.3d at 1035-36 (citations and quotation marks omitted). In weighing a claimant's credibility, an ALJ may consider, among other things, the "'[claimant's] reputation for truthfulness, inconsistencies either in [claimant's] testimony or between [her] testimony and [her] conduct, [claimant's] daily activities, [her] work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which [claimant] complains." Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (modification in original) (quoting Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997)). If the ALJ's credibility finding is supported by substantial evidence in the record, the court "may not engage in second-guessing." Id. at 959.

The ALJ found that plaintiff's medically determinable impairments could reasonably be expected to produce some of the symptoms alleged by plaintiff, but that plaintiff's statements concerning the intensity, persistence, and limiting effects of those symptoms were not entirely credible. (AT 21.) Given the absence of evidence of malingering, the ALJ was required to provide clear and convincing reasons in support of his adverse credibility finding. He offered several reasons in this regard.

For example, the ALJ relied on the fact that the "record reflects no actual treatment for the claimant's alleged mental impairments." (AT 21.) Relatedly, the ALJ stated that "there are no treatment records whatsoever prior to October 3, 2003, shortly before this application was filed." (AT 21.) The ALJ's statement appears to be technically true insofar as mental health records are concerned, but it does not paint a complete picture. Plaintiff's mother testified that plaintiff had been prescribed a medication for a social phobia in the third grade.

(AT 54.) Additionally, plaintiff's parents attempted to accommodate his mental impairments by placing him in special education classes and controlled classroom environments. (AT 54.) These actions appear to be consistent with behavioral treatments for autism spectrum disorders.*fn12

The ALJ also reasoned that "[n]o initial allegation was made regarding his allegedly disabling foot impairment." (AT 21.) It appears, based on this statement, that the ALJ did not believe that plaintiff had a foot impairment. However, the record supports that plaintiff had three surgeries to repair bones in his left foot. Moreover, Dr. Aquino, whose opinion the ALJ relied on to some extent, found that plaintiff had "significant findings of the left ankle corresponding to his complaints." (AT 325.) Dr. Aquino also assessed a standing/walking limitation of 15 minutes at one time, which was related to plaintiff's ankle problems. These facts would at least appear to substantiate that plaintiff had some ankle impairment that caused symptoms. The ALJ did not explain why the absence of an "initial" allegation of a disabling foot impairment was not overcome by the medical records.

Furthermore, the ALJ stated: "The claimant has never worked, which raises some questions as to whether the current unemployment is truly the result of medical problems." (AT 21.) It is unclear why plaintiff's unemployment suggests that he is not credible. The record supports that plaintiff had attempted to find suitable employment, but had failed, at least in part, because of his potentially disabling impairment. The ALJ's attempt to discount plaintiff's credibility on this basis is neither clear nor convincing based as set forth in the ALJ's present decision.

The ALJ also reasoned that plaintiff's completion of high school and community college classes, and his ability to drive and supervise a younger cousin undermined his credibility. These reasons, especially plaintiff's ability to supervise a younger child, support the ALJ's credibility finding. However, on the whole, the undersigned cannot conclude that the reasons provided in support of the ALJ's credibility finding are "clear and convincing." Accordingly, the ALJ should reassess the credibility finding on remand.

D. Whether the ALJ Improperly Rejected Third Party Lay Witness Testimony

Plaintiff also claims that the ALJ improperly rejected the lay witness testimony and/or statements of Kathleen A. Luckett, plaintiff's mother. (Pl.'s Mot. for Summ. J. at 31-34.) Ms. Luckett testified regarding plaintiff's functional limitations, including, among other things, plaintiff's ability to complete tasks without supervision or instruction and the impact of his congenital bone defect; she also provided written reports regarding plaintiff's limitations. (See AT 49-57, 155-63, 198-206.)

The Ninth Circuit Court of Appeals has long-held that "'[i]n determining whether a claimant is disabled, an ALJ must consider lay witness testimony concerning a claimant's ability to work.'" Bruce, 557 F.3d at 1115 (quoting Stout, 454 F.3d at 1053); see also 20 C.F.R. §§ 404.1513(d), 416.913(d). Such testimony "cannot be disregarded without comment." Id. (citation omitted). "When an ALJ discounts the testimony of lay witnesses, 'he [or she] must give reasons that are germane to each witness.'" Valentine, 574 F.3d at 694 (modification in original) (quoting Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993)). "[T]he reasons 'germane to each witness' must be specific." Bruce, 557 F.3d at 1115 (citing Stout, 454 F.3d at 1054).

Here, the ALJ considered Ms. Luckett's testimony and written submission. (See AT 21, 22.) However, he assigned "little weight" to Ms. Luckett's statements because she "has a vested interest in the outcome of this matter." (AT 22.)

In defending the ALJ, the Commissioner correctly notes that in Greger v. Barnhart, the Ninth Circuit Court of Appeals affirmed an ALJ's rejection of a lay witness's affidavit attesting to the plaintiff's limitations "in part" on the grounds that the lay witness had a "close relationship" with the plaintiff and was possibly influenced by a desire to help the plaintiff. 464 F.3d 968, 972 (9th Cir. 2006); see Def.'s Opp'n at 8. However, the Court of Appeals also affirmed on the basis of the additional reasons provided by the ALJ; namely, that the lay witness's affidavit was inconsistent with the plaintiff's treatment records during the period at issue and inconsistent with the plaintiff's failure to participate in cardiac rehabilitation. Greger, 464 F.3d at 972. Thus, Greger does not stand for the proposition that an ALJ may reject lay witness testimony or statements solely on the ground that the witness has a close relationship with the plaintiff or a vested interest in assisting the plaintiff. The Court of Appeals did not say as much, and it is unclear what weight it gave to the close relationship between the plaintiff and the lay witness.

The rule proposed by the Commissioner would effectively nullify the Commissioner's own regulations, which provide that the agency may consider "other non-medical sources" of information in assessing the severity of a claimant's impairments and resulting impacts on a claimant's ability to work, and that such other sources may be "spouses, parents or caregivers, siblings, other relatives, friends, neighbors, and clergy." 20 C.F.R. § 404.1513(d); accord 20 C.F.R. § 416.913(d). If a close relationship between the lay witness and the claimant could alone justify the rejection of that witness's testimony, an ALJ would never be required to consider lay witness testimony offered by a family member. Circuit law does not support such the Commissioner's proposed rule. See Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996) ("The fact that a lay witness is a family member cannot be a ground for rejecting his or her testimony. To the contrary, testimony from lay witnesses who see the claimant every day is of particular value...."); accord Regennitter v. Comm'r of Soc. Sec. Admin., 166 F.3d 1294, 1298 (9th Cir. 1999).

The ALJ's reason for rejecting Ms. Luckett's testimony is not sufficient, by itself, to support that rejection. Accordingly, the undersigned will remand this matter for the additional reason that the ALJ did not adequately support rejection of Ms. Luckett's testimony and statements.

E. Whether the ALJ Erred By Not Evaluating the Impact of Plaintiff's Obesity

Plaintiff also argues that the ALJ ignored the Commissioner's policy statements and the Appeals Council's remand order by not evaluating the impact of plaintiff's obesity on his functional abilities, consistent with obligations to do so imposed by SSR 02-1p. (Pl.'s Mot. for Summ. J. at 37-38.) SSR 02-1p states that "[o]besity is a complex, chronic disease characterized by excessive accumulation of body fat." It further states that obesity "commonly leads to, and often complicates, chronic diseases of the cardiovascular, respiratory, and musculoskeletal body systems," and "may also cause or contribute to mental impairments such as depression." SSR 02-1p also requires an ALJ to consider an individual's obesity at steps two through five of the sequential evaluation, and requires that obesity be considered in combination with the individual's other impairments.*fn13 It also states that "[an adjudicator] will not make assumptions about the severity or functional effects of obesity combined with other impairments. Obesity in combination with another impairment may or may not increase the severity or functional limitations of the other impairment. [The adjudicator] will evaluate each case based on the information in the case record." Ninth Circuit case law also requires an ALJ to determine the effect of a claimant's obesity on his or her other impairments. See Celaya v. Halter, 332 F.3d 1177 (9th Cir. 2003).

Consistent with SSR 02-1p, the Appeals Council's order remanding the ALJ's initial decision in this case specifically noted the following:

Evidence of record also shows that the claimant is obese with a weight between 270 and 300 pounds (Exhibit 8F). This was confirmed by the psychologist's report of June 21, 2006. However, the hearing decision contains no evaluation of obesity consistent with SSR 02-1p. (AT 125.) Although this remand order did not specifically order the ALJ to address SSR 02-1p on remand, the clear implication from that order is that the ALJ had erred in his initial decision by not evaluating plaintiff's obesity consistent with SSR 02-1p.

In his second hearing decision, the ALJ found that plaintiff's obesity was a severe impairment at step two of the sequential analysis. (AT 17.) Thus, the ALJ must have believed that plaintiff's obesity had some material impact on plaintiff's ability to do basic work activities. See Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) ("An impairment or combination of impairments may be found not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work" (citations and quotation marks omitted).). However, the ALJ did not indicate in his decision whether he considered SSR 02-1p at all and, more importantly, did not assess the impact that obesity had on plaintiff's functional abilities or his other impairments. For example, the ALJ did not discuss whether or to what extent plaintiff's obesity exacerbated his foot/ankle problem. In short, it is unclear from the ALJ's decision whether he disregarded the Appeals Council's remand order and SSR 02-1p, or whether he considered, but failed to expressly address, obesity in assessing plaintiff's disability claim at steps three through five of the sequential analysis. In either case, remand is warranted so that a complete analysis of plaintiff's obesity can be properly factored into all steps of the sequential analysis in accordance with SSR 02-1p.

Because the undersigned will remand this matter to the agency for further proceedings on several issues, the court will not specifically address plaintiff's arguments that the ALJ: (1) erred by finding that he did not meet or equal Listing 12.10, and (2) assessed an inaccurate RFC and thus posed legally inadequate hypothetical questions to the VE. The undersigned need not address those remaining claims of error because they derive, at least in part, from the errors addressed above.

IV. CONCLUSION

For the reasons stated above, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for summary judgment is granted in part.

2. This matter is remanded for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).

3. The Clerk of Court enter judgment in favor of plaintiff.

IT IS SO ORDERED.


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