UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
September 1, 2011
MARY LEE LYTLE, PLAINTIFF,
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.
The opinion of the court was delivered by: Honorable Jacqueline Chooljian United States Magistrate Judge
MEMORANDUM OPINION AND ORDER OF REMAND
On January 6, 2011, plaintiff Mary Lee Lytle ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's application for benefits. The parties have consented to proceed before a United States Magistrate Judge.
This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; January 12, 2011 Case Management Order ¶ 5.
Based on the record as a whole and the applicable law, the decision of the Commissioner is REVERSED AND REMANDED for further proceedings consistent with this Memorandum Opinion and Order of Remand because the Administrative Law Judge ("ALJ") failed properly to consider competent lay witness evidence and the Court cannot find such error harmless.
II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
On July 10, 2007, plaintiff filed an application for Disability Insurance Benefits. (Administrative Record ("AR") 8, 117). Plaintiff asserted that she became disabled on January 11, 2007, due to "cervical and lumbar injuries, fms [focal motor seizure], [and a] need [for] knee replacement." (AR 140). The ALJ examined the medical record and heard testimony on July 8, 2009 from plaintiff (who was represented by counsel), one of plaintiff's daughters (Mary Glacil), and a vocational expert. (AR 17-47).
On December 9, 2009, the ALJ determined that plaintiff was not disabled through the date of the decision. (AR 8-16). Specifically, the ALJ found:
(1) plaintiff suffered from the following severe impairments: degenerative disc disease of the cervical spine and lumbar spine, fibromyalgia, carpal tunnel syndrome, gastro esophageal reflux disease, and hypertension (AR 10-11);
(2) plaintiff's impairments, considered singly or in combination, did not meet or medically equal one of the listed impairments (AR 11-12); (3) plaintiff retained the residual functional capacity to perform sedentary work (20 C.F.R. § 404.1567(a)) with certain limitations (AR 12); (4) plaintiff could perform her *fn1 past relevant work as a real estate clerk and administrative assistant (AR 15); and (5) plaintiff's allegations regarding her limitations were not credible to the extent they were inconsistent with the ALJ's residual functional capacity assessment. (AR 14).
The Appeals Council denied plaintiff's application for review. (AR 1).
III. APPLICABLE LEGAL STANDARDS
A. Sequential Evaluation Process
To qualify for disability benefits, a claimant must show that the claimant is unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work claimant previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).
In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:
(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.
(2) Is the claimant's alleged impairment sufficiently severe to limit claimant's ability to work? If not, the claimant is not disabled. If so, proceed to step three.
(3) Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If not, proceed to step four.
(4) Does the claimant possess the residual functional capacity to perform claimant's past relevant work? If so, the claimant is not disabled. If not, proceed to step five.
(5) Does the claimant's residual functional capacity, when considered with the claimant's age, education, and work experience, allow claimant to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled.
Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920).
The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 (claimant carries initial burden of proving disability).
B. Standard of Review
Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legal error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006) (citing Flatten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 (9th Cir. 1995)). 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) (citations and quotations omitted). It is more than a mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)).
To determine whether substantial evidence supports a finding, a court must "'consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing the ALJ's conclusion, a court may not substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 882 (citing Flatten, 44 F.3d at 1457).
A. A Remand is Appropriate Because the ALJ Failed Properly to Consider Competent Lay Evidence and the Court Cannot Find Such Error Harmless
Plaintiff contends that a reversal or remand is warranted because the ALJ (1) failed adequately to address the written statement supplied by one of plaintiff's daughters, Anna Marie McFarland, and to provide adequate reasons for rejecting such evidence; and (2) completely failed to consider the hearing testimony provided by another one of plaintiff's daughters, Mary Glacil. (Plaintiff's Motion at 6-9). The Court agrees. As the Court cannot find that the ALJ's errors were harmless, a remand is warranted.
1. Pertinent Facts
In a Third Party Function Report dated November 11, 2007, plaintiff's daughter, Anna Marie McFarland, stated, inter alia, that plaintiff (i) is very depressed (AR 167); (ii) can sleep only two to three hours at a time due to her pain (AR 168); (iii) cannot button, zip or tie her clothing without help; (iv) has trouble getting in and out of the bath, lifting her arms, shaving, cutting things, getting up from the toilet (AR 168); (v) spends about one to four hours each week doing household chores such as wiping counters, laundry, and sweeping, but needs help carrying the laundry (AR 169); (vi) shops two to four times per month for no more than one hour at a time (AR 170); (vii) is very weak and shaky and very tired (AR 170); (viii) does not engage in any of her previous hobbies because they are too painful (AR 171); (ix) has trouble with, inter alia, lifting, squatting, bending, standing, reaching, walking, sitting, and using her hands (AR 172, 174); (x) cannot kneel at all or climb more than three to four steps, can lift only one to five pounds, cannot squat, gets tired standing after 5-10 minutes, and needs to rest 5-10 minutes after walking 50-100 yards (AR 172, 174); (xi) at times has pain that is so severe that she is unable to move her arms and is scared that she is paralyzed (AR 173); (xii) has swelling in her knee which prevents her from getting up (AR 174); and (xiii) loses sensation for long periods of time in her hands and her hands shake uncontrollably and are sore all the time (AR 174). Ms. McFarland also stated that she helps her mother with daily chores, washes her mother's hair, trims her nails, and drives her to appointments. (AR 174).
On July 8, 2009, plaintiff testified at the administrative hearing regarding her symptoms and limitations. (AR 19-40). She testified, inter alia, that she:
(i) was laid off from her job but could no longer do her prior work (AR 20-21); (ii) suffers from fibromyalgia as well as pain in her neck, back, hips, and legs from bone spurs (AR 22); (iii) suffers from depression for which she takes medication and for which she saw a psychiatrist until the death of her husband (AR 22, 24, 36-37); (iv) cannot sit for more than 40 minutes at a time due to severe pain, can stand for no more than 10 to 15 minutes at a time before having to sit down, and cannot walk for an hour without pain (AR 26-28, 35-36); (v) has to lie down four to five times per day for 15 minutes to an hour each time (AR 29); (vi) cannot open jar lids without help (AR 31-32); (vii) takes two-and-a-half hours to get ready every morning due to severe pain (AR 33); (viii) wears a wrist brace for carpal tunnel *fn2 syndrome (AR 35); and (ix) suffers from hypertension (AR 38).
Plaintiff's daughter, Mary Glacil, also testified at the July 8, 2009 administrative hearing, and stated that plaintiff (i) has a very hard time getting up in the morning, and is very stiff and lethargic (AR 41); (ii) is very weepy (AR 41); (iii) has difficulty leaving the house because of her pain (AR 41); (iv) has more bad days than good days (AR 41, 43); (v) needs to lie down more than she is up (AR 42); (vi) needs helping doing chores around the house (e.g., vacuuming) (AR 42); (vii) sometimes experiences swelling in her legs so much that "they look like stuffed sausages" (AR 43-44); and (viii) when plaintiff over exerted herself during her husband's funeral, her legs swelled up so much that "she was in bed for [a] week" thereafter (AR 43).
In the administrative opinion, the ALJ gave "little weight" to the lay statements of Anna Marie McFarland, essentially because (1) McFarland is plaintiff's daughter, and thus may have been biased (i.e., "[McFarland's] close relationship with [plaintiff] . . . may have influenced her desire to help [plaintiff]."); (2) McFarland's "observations [of plaintiff] may not be reflective of [plaintiff's] maximal capacities"; and (3) McFarland's lay statements conflicted with the record medical evidence. (AR 15).
2. Pertinent Law
Lay testimony as to a claimant's symptoms is competent evidence that an ALJ must take into account, unless he expressly determines to disregard such testimony and gives reasons germane to each witness for doing so. Stout, 454 F.3d at 1056 (citations omitted); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001); see also Robbins, 466 F.3d at 885 (ALJ required to account for all lay witness testimony in discussion of findings) (citation omitted); Regennitter v. Commissioner of Social Security Administration, 166 F.3d 1294, 1298 (9th Cir. 1999) (testimony by lay witness who has observed claimant is important source of information about claimant's impairments); Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (lay witness testimony as to claimant's symptoms or how impairment affects ability to work iscompetent evidence and therefore cannot be disregarded without comment) (citations omitted); Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (ALJ must consider observations of non-medical sources, e.g., lay witnesses, as to how impairment affects claimant's ability to work). The standards discussed in these authorities appear equally applicable to written statements. Cf. Schneider v. Commissioner of Social Security Administration, 223 F.3d 968, 974-75 (9th Cir. 2000) (ALJ erred in failing to consider letters submitted by claimant's friends and ex-employers in evaluating severity of claimant's functional limitations).
In cases in which "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." Robbins, 466 F.3d at 885 (quoting Stout, 454 F.3d at 1055-56).
As the above-stated facts reflect, the lay statements of Ms. McFarland are, on the whole, consistent with, and corroborate plaintiff's testimony regarding the extent of her symptoms and limitations. Such testimony was competent lay evidence that the ALJ was required to take into account unless he expressly determined to disregard it and gave reasons therefor. Nonetheless, the reasons the ALJ provided for rejecting the lay statements from Ms. McFarland were not adequate. First, "[t]he fact that a lay witness is a family member cannot be a ground for rejecting his or her testimony." Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996). Second, the ALJ's conclusory assertion that Ms. McFarland's observations "may not [reflect plaintiff's] maximal capacities" is not a specific, germane reason for discrediting lay statements. See id. ("[T]estimony from lay witnesses who see the claimant every day is of particular value. . . .") (citation omitted). Finally, the ALJ's conclusory finding that unspecified record medical evidence conflicts with Ms. McFarland's statements is not a germane reason for rejecting the competent lay evidence. See, e.g., Kimzey v. Commissioner of Social Security, 2011 WL 1230818, *25 (E.D. Cal. Mar. 30, 2011) (ALJ's conclusory finding that lay statement "was 'not consistent with the preponderance of the opinions and observations by medical doctors' is not a germane reason for rejecting the lay [evidence].").
In addition, the ALJ made no specific mention of the testimony given at the administrative hearing by plaintiff's other daughter Mary Glacil. Ms. Glacil's testimony was competent lay evidence that the ALJ was required to take into account unless he expressly determined to disregard it and gave germane reasons therefor. The ALJ erred in not providing any reasons for rejecting such lay testimony. The Court cannot conclude that these errors were harmless because it *fn3 cannot "confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different disability determination." Stout, 454 F.3d at 1055-56. If fully credited, Ms. McFarland's statements and Ms. Glacil's testimony substantially support plaintiff's description of her symptoms and limitations, and thus could have caused a reasonable ALJ to reach a different disability determination. Accordingly, this Court cannot deem the ALJ's failure to address the lay evidence supplied by plaintiff's daughters harmless.
For the foregoing reasons, the decision of the Commissioner of Social Security is reversed in part, and this matter is remanded for further administrative action consistent with this Opinion.*fn5
LET JUDGMENT BE ENTERED ACCORDINGLY.