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Robert Bolar v. Michael J. Astrue

October 24, 2011

ROBERT BOLAR, 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

Plaintiff appeals the decision of Defendant Social Security Administration ("the Agency"), denying his applications for Disability Insurance benefits ("DIB") and Supplemental Security Income ("SSI"). He claims that the Administrative Law Judge ("ALJ") erred in: (1) rejecting a social worker's opinion, (2) ignoring the opinions of an Agency employee, (3) rejecting the opinions of an examining psychiatrist, and (4) rejecting his mother's testimony. For the reasons discussed below, the Agency's decision is reversed and remanded for further consideration in accordance with this opinion.

II. SUMMARY OF PROCEEDINGS

Plaintiff applied for DIB and SSI on February 28, 2007, alleging that he was disabled as of October 1, 2006, due to bipolar disorder, severe depression, anxiety, and an inability to concentrate. (Administrative Record ("AR") 145-52, 202-09.) The Agency denied his application initially and on reconsideration. (AR 48-56, 58-61, 64-68.) He then requested and was granted a hearing before an ALJ. (AR 70, 92-96.) Plaintiff appeared with counsel and testified at the hearing on March 11, 2009. (AR 18-43.) The ALJ subsequently issued a decision denying benefits. (AR 5-17.) Plaintiff appealed to the Appeals Council, which denied review. (AR 1-4.) He then commenced the instant action.

III. ANALYSIS

A. The Social Worker's Opinion

Plaintiff contends that the ALJ erred in rejecting the opinion of a social worker/therapist who found that he suffered from bipolar disorder and was severely restricted as a result. For the following reasons, the Court does not agree.

Social workers are defined in the regulations as "other sources" of medical evidence and their opinions are not entitled to the same weight as doctors' opinions. 20 C.F.R. § 416.913(d) (2011); Social Security Ruling 06-03p; see also Thomas v. Astrue, 2009 WL 151488, at *3 (C.D. Cal. Jan. 21, 2009) ("[T]he reports of licensed clinical social workers are considered 'other sources' of evidence, not evidence from an 'acceptable medical source.'"). As such, in order to discount the opinion of a social worker, an ALJ need only provide reasons that are germane to the witness. Turner v. Comm'r, Soc. Sec. Admin., 613 F.3d 1217, 1224 (9th Cir. 2010) (quoting Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)).

The ALJ rejected the social worker's opinion in this case because it consisted of a reiteration of Plaintiff's subjective complaints---complaints that the ALJ had rejected--along with an opinion of impairment that assumed that Plaintiff was compliant with his medications, which he was not. (AR 15.) These reasons are germane to the witness and are supported by the record. As such, the ALJ did not err here.

B. The Agency Employee's Observations

Plaintiff argues that the ALJ erred in failing to consider the observations of a Social Security Administration employee who interviewed Plaintiff in connection with his applications and noted that Plaintiff was childlike and unable to complete forms on his own. (Joint Stip. at 25-26.) For the following reasons, the Court finds that this claim does not warrant reversal of the ALJ's decision.

At the outset, it is unclear whether the ALJ was required to consider the employee's observations at all. As best the Court can tell, this employee's only exposure to Plaintiff was during an interview at the Social Security offices in which the employee was attempting to obtain information from Plaintiff to process Plaintiff's application. There is no evidence as to the length of the interview, but it appears from the form the interviewer filled out--which consists of 12 questions--that it would have been completed in a relatively brief period, certainly less than 30 minutes. (AR 198-201.) It is also unclear what type of training and experience the interviewer had, if any, as there is no indication on the form of his or her background or even his or her title. (AR 201.) Further, though the interviewer did note that Plaintiff was bipolar and childlike, with a "limited understanding of his condition," immediately thereafter, he or she also noted in response to a question seeking observations about the claimant's "behavior, appearance, grooming, degree of limitations, etc." that they were "not remarkable." (AR 200.) Finally, Plaintiff's counsel never alerted the ALJ to the employee's observations or raised the issue at the administrative hearing. Thus, it is hard to say that the interviewer was a competent lay witness and that the ALJ erred when he failed to consider the interviewer's notations. See Crane v. Shalala, 76 F.3d 251, 254 (9th Cir. 1996) (questioning whether therapist's two-week exposure to claimant rendered her competent to testify as lay witness); Smith v. Barnhart, 2002 WL 485050, at *4 (N.D. Cal. Mar. 27, 2002) (finding one visit by Agency interviewer did not qualify him as a competent lay witness). And, assuming that the Court were prepared to conclude that the interviewer's notations amounted to competent evidence, it is harder still to determine what if any weight should be given to the interviewer's notes. But, as Plaintiff points out and the Court has witnessed, the Agency sometimes relies on these employees' observations that, for example, the claimant was able to complete the interview without difficulty, in support of its argument that the claimant was not impaired. Thus, it only seems fair that, when, as here, the employee's observations are helpful to the claimant, they should be considered by the ALJ as well. In the future, however, the Court advises counsel that if she wants the ALJ to consider brief notations by an interviewer in a 415-page record, she needs to alert the ALJ to that fact at the administrative hearing.

Lay testimony is competent evidence, which an ALJ is required to consider in determining if a claimant is disabled. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) (citing Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993)). In order to reject it, however, the ALJ need only provide reasons that are germane to the witness. Dodrill, 12 F.3d at 919. Failure to address lay testimony constitutes error. See Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006). The error is harmless, however, if the Court can ...


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