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Norma Ramirez v. Michael J. Astrue

March 29, 2011

NORMA RAMIREZ,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,
DEFENDANT.



The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

I.

INTRODUCTION Before the Court is Plaintiff's appeal of a decision by Defendant Social Security Administration ("the Agency"), denying her applications for Disability Insurance benefits ("DIB") and Supplemental Security Income ("SSI"). Plaintiff claims that the Administrative Law Judge ("ALJ") erred in failing to properly consider: 1) lay witness testimony; 2) a treating clinician's opinion; 3) the opinions of two treating psychiatrists; 4) a state reviewing psychiatrist's functional assessment; 5) a treating psychiatrist's functional assessment; and 6) the severity of Plaintiff's mental impairment. She claims further that he failed to pose a complete hypothetical question to the vocational expert and also erred when he determined that she could perform her past relevant work as an accounting clerk. For the following reasons, the Court concludes that the ALJ erred in his treatment of the mental health evidence and remands for further proceedings consistent with this opinion.

II.

SUMMARY OF PROCEEDINGS Plaintiff applied for DIB and SSI on April 9, 2007, alleging that she had been unable to work since March 31, 2001, because of major depression, a panic disorder, anxiety, and pain. (Administrative Record ("AR") 131-39.) The Agency denied the applications initially and on reconsideration. (AR 64-75.) Plaintiff then requested and was granted a hearing before an ALJ. (AR 78-82.) Plaintiff appeared with counsel and testified at the hearing on October 16, 2008. (AR 21-33.) On April 3, 2009, the ALJ issued a decision denying benefits. (AR 7-20.) Plaintiff appealed to the Appeals Council, which denied review. (AR 1-6.) She then commenced the instant action.

III.

DISCUSSION

A. Lay Witness Testimony

In her first claim of error, Plaintiff contends that the ALJ erred by failing to provide germane reasons for rejecting the written "testimony" of her daughter, Terry Ramirez. (Joint Stip. at 3-5.) The Court finds this claim to be without merit.

An ALJ must consider lay witness testimony. Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006); Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); 20 C.F.R. §§ 404.1513(d)(4),(e). Nevertheless, an ALJ need only give reasons that are "germane" to the testimony in order to reject it. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005).

In an August 13, 2007 Third Party Function Report, Plaintiff's daughter stated, among other things, that Plaintiff needed to be reminded to take her medicine; only rarely cooked hot meals because she forgot what she was doing and fell asleep with the food on the stove; got very nervous when driving a car; could not pay bills or write out checks; panicked when around a crowd of people; and was limited in her ability to lift, stand, walk, and climb stairs. (AR 241-44.) She also stated that Plaintiff did not handle stress well and lacked the patience to concentrate. (AR 246.) These statements closely mirrored Plaintiff's own statements on a form she submitted to the Agency the same day.*fn1 (AR 247-54.)

The ALJ rejected the daughter's statements because they mirrored Plaintiff's, which the ALJ found to be incredible. (AR 18-20.) Plaintiff has not challenged the ALJ's credibility finding, thus, the Court accepts it. Where, as here, the lay witness testimony mirrors the claimant's testimony and the claimant is found to be not credible, the ALJ may reject the lay witness testimony for that reason alone. See Valentine v. Comm'r, Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (holding that ALJ gave germane reason for rejecting claimant's wife's testimony where it was similar to claimant's own complaints that were properly rejected); see also Cleveland v. Astrue, 2010 WL 1678294, at *8 (C.D. Cal. Apr. 23, 2010) (ALJ's failure to expressly provide reason for rejecting lay witness statements was harmless error where statements mirrored claimant's testimony that was properly found not credible). As such, the ALJ's rejection of the daughter's testimony is affirmed.

B. The Mental Health Evidence

The ALJ concluded that Plaintiff did not suffer from a severe mental impairment. (AR 15-17.) In claims two through seven, Plaintiff takes issue with the ALJ's findings in this regard. She contends, among other things, that the ALJ did not provide legally sufficient reasons for rejecting various physicians' opinions and, as a consequence, erred in finding that Plaintiff's mental impairment was not severe. For the following reasons, the Court concludes that the ALJ erred.

In August 2000, Plaintiff was driving a car for work when she was involved in an accident. (AR 375.) Thereafter, she complained of depression and anxiety and obtained treatment, including therapy and medication, from psychiatrist Herbert Marshak and psychologist Roland Chabot between March 2001 and February 2002. (AR 378-80.) On January 14, 2002, Dr. Chabot diagnosed her with major depressive disorder, single episode, and assigned a Global Assessment of Functioning ("GAF") score of 50. (AR 378.)

In May 2002, a worker's compensation examiner, Dr. Donald Feldman, conducted a mental status evaluation of Plaintiff, which revealed that she was oriented, dressed appropriately, and that her speech and thought processes were normal. (AR 382.) Dr. Feldman determined that Plaintiff's psychiatric disability was "zero to slight." (AR 389.) He believed that she would have a "slight disability" in relating to people and influencing people, making generalizations, evaluations or decisions without supervision, and accepting and carrying out responsibility for directions, control ...


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