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Eduardo Fonseca v. Michael J. Astrue

June 10, 2011

EDUARDO FONSECA,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff filed a Complaint on April 8, 2010, seeking review of the denial by the Social Security Commissioner (the "Commissioner") of plaintiff's application for a period of disability, disability insurance benefits ("DIB"), and social security income ("SSI"). On April 23, 2010, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. The parties filed a Joint Stipulation on December 8, 2010, in which: plaintiff seeks an order reversing the Commissioner's decision and remanding this case for the payment of benefits or, alternatively, for further administrative proceedings; and defendant requests that the Commissioner's decision be affirmed. The Court has taken the parties' Joint Stipulation under submission without oral argument.

SUMMARY OF ADMINISTRATIVE PROCEEDINGS

Plaintiff filed an application for a period of disability, DIB, and SSI. (Administrative Record ("A.R.") 8.) Plaintiff claims to have been disabled since September 1, 2007, due to heart surgery, Marfan's syndrome, headaches, depression, and persistent chest/upper abdominal pain. (A.R. 19, 89, 114.) Plaintiff has past relevant work experience as a hardware supervisor and security guard.*fn1 (A.R. 13.)

After the Commissioner denied plaintiff's claim initially and upon reconsideration (A.R. 8, 42-46, 50-55), plaintiff requested a hearing (A.R. 56-59, 63-64). On October 14, 2009, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge F. Keith Varni (the "ALJ"). (A.R. 15-37.) Lay witness Maria Munoz also testified. (A.R. 32-36.) On December 7, 2009, the ALJ denied plaintiff's claim (A.R. 8-14), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 1-3). That decision is now at issue in this action.

SUMMARY OF ADMINISTRATIVE DECISION

The ALJ found that plaintiff has not engaged in substantial gainful activity since September 1, 2007, the alleged onset date of plaintiff's claimed disability. (A.R. 10.) The ALJ further found that plaintiff meets the insured status requirements of the Social Security Act through December 31, 2012. (Id.) The ALJ determined that plaintiff has the "severe impairments [sic]" of "Marfan's Syndrome which resulted in an aneurysm of the aortic root that was repaired surgically without complication." (Id.) The ALJ also determined that plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926). (A.R. 11.)

After reviewing the record, the ALJ determined that plaintiff has the residual functional capacity ("RFC") to perform the full range of light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that plaintiff "should avoid exposure to hazardous machinery and heights." (A.R. 11.)

The ALJ concluded that plaintiff's past relevant work, as a hardware supervisor and security guard, does not require the performance of work-related activities precluded by plaintiff's RFC. (A.R. 13.) Accordingly, the ALJ concluded that plaintiff has not been under a disability within the meaning of the Social Security Act from September 1, 2007, the alleged onset date, through the date of his decision. (A.R. 13.)

STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (citation omitted). The "evidence must be more than a mere scintilla but not necessarily a preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). "While inferences from the record can constitute substantial evidence, only those 'reasonably drawn from the record' will suffice." Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted).

Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec'y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was 'inconsequential to the ultimate non-disability determination.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. Comm'r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d at 679.

DISCUSSION

Plaintiff makes the following claims: (1) the ALJ failed to consider the lay witness testimony of Maria Munoz; (2) the ALJ improperly rejected the opinions of plaintiff's treating physicians, who diagnosed plaintiff with neuropathic pain; (3) the ALJ failed to secure a consultative examination; (4) the ALJ failed to find plaintiff's neuropathic pain to be a "severe" impairment; and (5) the ALJ improperly evaluated plaintiff's credibility.*fn2 (Joint Stipulation ("Joint Stip.") at 2-3.)

I. The ALJ Erred By Failing To Address The Testimony Of Lay Witness Maria Munoz.

In evaluating the credibility of a claimant's assertions of functional limitations, the ALJ must consider lay witnesses' reported observations of the claimant. Stout, 454 F.3d at 1053. "[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), 416.913(d)(4) ("[W]e may also use evidence from other sources to show the severity of your impairment(s). . . . Other sources include, but are not limited to . . . spouses, parents and other care-givers, siblings, other relatives, friends, neighbors, and clergy."). "If an ALJ disregards the testimony of a lay witness, the ALJ must provide reasons 'that are germane to each witness.'" Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009)(citation omitted). Further, the reasons "germane to each witness" must be specific. Stout, 454 F.3d at 1054 (explaining that "the ALJ, not the district court, is required to provide specific reasons for rejecting lay testimony"). Lastly, "where 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." Id. at 1056.

At the October 14, 2009 administrative hearing, plaintiff's friend, Maria Munoz, provided testimony regarding plaintiff's daily activities and symptoms. (A.R. 32.) Ms. Munoz testified that she: takes plaintiff to doctor's appointments and the grocery store; assists plaintiff with his grocery shopping; and helps "pick up heavy things for him." (Id.) She also testified that, when she has the opportunity, she cooks and performs household chores for plaintiff. (A.R. 33.) Ms. Munoz further testified that plaintiff has mood swings, and sometimes she must "remind him to take [his] medication or . . . go to the doctor." (A.R. 34.) She also testified that plaintiff "spends a lot of time laying in bed because of his pain." (A.R. 34.) According to Ms. Munoz: plaintiff can "sit for a little bit . . . for small periods[,] and then, he has to go lay down" (id.); when she drives with plaintiff, he complains of pain, primarily in his chest, and must lie down because "he can't really sit straight up" (A.R. 35-36); and plaintiff has tried everything the doctors "told him to do . . . [but the] pain [in his chest] is still there" (A.R. 36). In his decision, the ALJ failed to address Ms. Munoz's lay witness testimony.

When an ALJ disregards a lay witness's testimony without comment, the Court applies a harmless error analysis. Stout, 454 F.3d at 1054-56. Applying the harmless error analysis and crediting the testimony of Ms. Munoz fully, the Court cannot confidently conclude, as required, that "no reasonable ALJ . . . could have reached a different disability determination." Id. at 1056. Ms. Munoz's testimony both corroborates and expands upon plaintiff's testimony,*fn3 and thus, contrary ...

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