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Debra Phillips v. Michael J. Astrue


March 31, 2011


The opinion of the court was delivered by: Marc L. Goldman United States Magistrate Judge


Plaintiff Debra Phillips seeks judicial review of the Commissioner's final decision denying her application for Social Security Disability Insurance ("SSDI") benefits. For the reasons set forth below, the final decision of the Commissioner is affirmed.

I. Background

Plaintiff was born on January 8, 1954 and was 55 years old at the time of the administrative hearing. (AR 15, 118.) She has completed one year of college and has work experience as a school secretary. (AR 133, 135.) Plaintiff filed her application for SSDI benefits on November 13, 2007, alleging disability as of January 30, 2001 due to carpal tunnel syndrome, essential hypertension, back pain, discogenic and degenerative disorders of the back, arthritis, migraines and depression. (Administrative Record ("AR") 118, 124.)

The current application was denied initially on May 19, 2008 and upon reconsideration on July 18, 2008. (AR 59-62, 69-73). An administrative hearing was held on August 3, 2009 before Administrative Law Judge ("ALJ") Michael D. Radensky. Plaintiff, who was represented by an attorney, testified, as did a vocational expert. (AR 20-43.)

On October 13, 2009, ALJ Radensky denied Plaintiff's application for benefits. (AR 10-17.) The ALJ found that Plaintiff had not engaged in substantial gainful activity during the period from April 18, 2007*fn1 though the date last insured of December 31, 2007.*fn2 (AR 12.) The ALJ found that Plaintiff had the following severe impairments: back pain, status post bilateral carpal tunnel releases, and obesity. (Id.) However, the ALJ determined that Plaintiff's impairments did not meet or were not medically equal to, one of the listed impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1. (AR 13.)

The ALJ adopted the previous ALJ decision in finding that, between April 18, 2007 and December 31, 2007, Plaintiff retained the residual functional capacity ("RFC") to "lift 20 pounds occasionally and 10 pounds frequently, stand and/or walk six hours in an eight-hour workday, and sit six hours in an eight hour workday. The claimant must avoid work at unprotected heights or work on dangerous machinery. She can occasionally stoop, kneel, crouch, and crawl. She can never climb or balance. She is precluded from power gripping. She is limited to a maximum of two hours of keyboarding per day, 15 minutes at a time." (AR 13.) The ALJ determined that Plaintiff was unable to perform any past relevant work. (AR 15.) However, the ALJ concluded, based upon the testimony of the VE, that Plaintiff was capable of performing various other jobs that exist in significant numbers in the national economy. (AR 16.) Therefore, the ALJ concluded that Plaintiff was not disabled within the meaning of the Social Security Act. 20 C.F.R. § 416.920(f). (Id.)

On July 28, 2010, the Appeals Council denied review (AR 1-4), and Plaintiff timely commenced this action for judicial review. On March 22, 2011, the parties filed a Joint Stipulation ("Joint Stip.") of disputed facts and issues, in which Plaintiff claims that (1) the ALJ failed to properly consider lay witness testimony and (2) the ALJ failed to properly consider a treating physician's opinion. (Joint Stip. 3.) Plaintiff asks the Court to order an award of benefits, or in the alternative, remand for further proceedings. (Joint Stip. 18.) The Commissioner requests that the ALJ's decision be affirmed. (Id.)

II. Standard of Review

Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The Commissioner's or ALJ's decision must be upheld unless "the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). "If the evidence can support either affirming or reversing the ALJ's conclusion," the reviewing court "may not substitute its judgment for that of the ALJ." Robbins, 466 F.3d at 882.

III. Discussion

A. The ALJ Did Not Err In Failing to Discuss the Lay Witness Report Provided by Plaintiff's Sister

Plaintiff contends that the ALJ failed to properly consider the written statements submitted by Plaintiff's sister, Sharon Davis. (Joint Stip. 3.) On March 18, 2008, Ms. Davis completed a "Function Report --Adult -- Third Party" form describing Plaintiff's daily activities and other functions. (AR 156-163.) Plaintiff argues that the ALJ erred by failing to discuss this report and by failing to provide germane reasons for doing so. The Commissioner argues that any error was harmless. The Court agrees.

The testimony of lay witnesses regarding their own observations of the claimant's impairments constitutes competent evidence that must be taken into account and evaluated by the Commissioner in the disability evaluation. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006). Such testimony cannot be discounted unless the ALJ gives reasons that are germane to that witness. Carmickle v. Commissioner, Social Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008); Stout v. Commissioner, 454 F.3d 1050, 1053 (9th Cir. 2006) (citing Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993)); Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). "[W]here the ALJ's error lies in a failure to properly discuss competent lay testimony favorable to the claimant, a reviewing court cannot consider the error harmless unless it can confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different disability determination." Stout, 454 F.3d at 1056.

The ALJ's failure to address Ms. Davis's written statement was harmless error under Stout. Ms. Davis's statements about Plaintiff's symptoms were substantially similar to Plaintiff's own statements. For example, Ms. Davis noted that Plaintiff had trouble sleeping, needed assistance in bathing and dressing, and needed to be reminded to complete various tasks. (AR 157-158.) Plaintiff similarly reported that she had difficulty sleeping, had trouble dressing herself and had difficulty in following directions. (AR 145-50.) Ms. Davis reported that Plaintiff had stiffness and joint pain, as well as pain in her hands and wrists, which affected her ability to lift, walk, climb stairs and use her hands. (TR 161.) Similarly, Plaintiff reported that her impairment negatively affected her ability to lift, walk, climb stairs, and use her hands. (TR 150-151.) Plaintiff's testimony at the administrative hearing was largely the same as her sister's written statements. (AR 21-38.)

The ALJ fully addressed Plaintiff's subjective testimony and discounted it as not fully credible, a finding which Plaintiff does not challenge here. (AR 14-15.) Thus, because Ms. Davis's report mirrored Plaintiff's subjective testimony, this evidence did not add substantial weight to Plaintiff's claim. Under these circumstances, the failure to address this evidence was inconsequential to the ultimate determination of non-disability. Stout, 454 F.3d at 1055. See, e.g., Genovez v. Astrue, 2011 WL 92995, at *2 (C.D.Cal. 2011) (the failure to address lay witness testimony was harmless because the testimony was substantially similar to the statements made by the claimant); Lonian v. Astrue, 2010 WL 4916605, at *4 (C.D. Cal. 2010) (the ALJ did not err by failing to discuss a letter submitted by two lay witnesses where the statements were similar to the claimant's own testimony).

In addition, unlike lay testimony, there is no controlling precedent requiring an ALJ to explicitly address written statements, such as the "Function Report -- Adult -- Third Party" form in this case. Indeed, it is clear that an ALJ is not required to discuss all evidence in the record in detail. Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). Accordingly, Plaintiff's claim is without merit.

B. The ALJ Properly Considered the Opinion of Plaintiff's Treating Physician

Plaintiff contends that the ALJ erred by rejecting a "Multiple Impairment Questionnaire" dated May 11, 2007, which was completed by Plaintiff's treating physician, Dr. John R. Sharpe, M.D. (Joint Stip.9.) The report provides various observations regarding Plaintiff's impairments and symptoms as well as her ability to complete work-related tasks. (AR 201-208.) In discussing Dr. Sharpe's report, the ALJ stated as follows:

The undersigned has reviewed the multiple impairment questionnaire signed on May 11, 2007 by Dr. John Sharpe, M.D., a family practitioner. Dr. Sharpe stated in that questionnaire that his responses were based on an examination done on October 3, 2006 and that he had not seen the claimant since that time. This is the only medical evidence submitted in connection with the current claim which is dated between April 18, 2007 and December 31, 2007 but it relates to an examination that predated the Administrative Law Judge decision. (AR 13.)

It was proper for the ALJ not to accord significant weight to Dr. Sharpe's report because he had not treated Plaintiff since October 3, 2006, more than seven months prior to the date of the report and prior to the relevant time period of April 18, 2007 through December 31, 2007. Moreover, because Dr. Sharpe had not examined Plaintiff since October 3, 2006, a time covered by the previous unfavorable ALJ decision, the ALJ properly determined that Dr. Sharpe's report was not relevant to determining disability within the relevant period of April 18, 2007 through December 31, 2007.

Plaintiff contends that, if the ALJ was unsure whether this was a valid and current opinion as of May 11, 2007, the date of the report, the ALJ had a duty to re-contact Dr. Sharpe. (Joint Stip. 13.) A disability applicant bears the burden of proving disability and must provide medical evidence demonstrating the existence and severity of an alleged impairment. See Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001); 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912©. Nonetheless, an ALJ has a "duty to develop the record fully and fairly and to ensure that the claimant's interests are considered, even when the claimant is represented by counsel." Mayes, 276 F.3d at 459. An ALJ's duty to augment an existing record is triggered "only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence." Id. (citing Tonapetyen v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001)).

Contrary to Plaintiff's contention, the ALJ had no duty to re-contact Dr. Sharpe because there were no ambiguous or inadequate medical records which would trigger the ALJ's duty to further develop the record. Rather, Dr. Sharpe's form unequivocally stated that he had not examined Plaintiff since October 3, 2006 (TR 201), a date outside of the relevant disability period. If medical records existed that were relevant to the period of disability, either Plaintiff herself or her attorney could have procured these records, rather than expecting the ALJ to do so. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987)("It is not unreasonable to require the claimant, who is in a better position to provide information about his own medical condition, to do so."); Duenas v. Shalala, 34 F.3d 719, 722 (9th Cir. 1994).

Moreover, Dr. Sharpe's assessments of Plaintiff's impairments and ability to complete work-related tasks was contradicted by the opinions of the examining consultative physicians. The ALJ properly relied upon the opinions of the examining consultative physicians, Drs. Keith J. Wahl, M.D., S. Khan, M.D., and F. Kalmar, M.D., each of whom "opined that the evidence submitted with the current application did not document any additional impairment or worsening of impairments since the claimant's date last insured" of December 31, 2007. (AR 14, 264-266, 267-278, 279-280.) The opinion of an examining physician can constitute substantial evidence when the opinion is consistent with independent clinical findings or other evidence in the record. See Thomas v. Barnhart, 278 F.3d 948, 957 (9th Cir. 2002).

In sum, the ALJ accorded proper weight to Dr. Sharpe's opinion, and therefore Plaintiff is not entitled to relief on this issue.

IV. Conclusion

For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED.

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