The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff appeals a decision by Defendant Social Security Administration ("the Agency"), denying his application for Supplemental Security Income ("SSI"). He claims that the Administrative Law Judge ("ALJ") erred when he failed to consider all of his impairments as well as his girlfriend's testimony. (Joint Stip. at 2-43.) He also complains that the Appeals Council failed to consider new and material evidence. (Joint Stip. at 43-45.) For the reasons discussed below, the Agency's decision is reversed and the case is remanded for further proceedings consistent with this opinion.
In April 2007, Plaintiff applied for SSI, alleging disability beginning March 2007, due to fatigue, memory loss, depression, an inability to concentrate, headaches, seizures, and neuropathy. (Administrative Record ("AR") 106-12, 118, 134.) The Agency denied the application initially and on reconsideration. Plaintiff then requested and was granted a hearing before an ALJ. (AR 88-90.) Plaintiff appeared with counsel and testified at the hearing on August 7, 2008. (AR 17-60.) The ALJ subsequently issued a decision denying benefits. (AR 10-15.) Plaintiff appealed to the Appeals Council, which denied review. (AR 1-4.) He then commenced this action.
A. The ALJ's Failure to Address Plaintiff's Girlfriend's Testimony Prior to the administrative hearing, Plaintiff's girlfriend, Margaret Salazar, submitted an eight-page questionnaire, detailing her observations of Plaintiff's difficulties. (AR 125-32.) She also testified at the administrative hearing about his condition. (AR 45-52.) Though the ALJ noted in passing that Salazar had testified, he never addressed why he was rejecting her testimony, which, clearly, he must have because he did not include any of her observations in the residual functional capacity assessment. (AR 14.)
Lay testimony is competent evidence and, therefore, an ALJ is required to consider it in determining if a claimant is disabled. See Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) ("Lay testimony as to a claimant's symptoms is competent evidence which the Secretary must take into account."). Failure to consider lay testimony constitutes error. See Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006). Further, the error mandates reversal unless the Court can confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have found that the claimant was disabled. Id. at 1056 ("[W]e hold that 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.").
The Agency concedes that the ALJ erred in failing to address Salazar's testimony but argues that the error was harmless because her testimony was similar to Plaintiff's and the ALJ rejected his testimony. (Joint Stip. at 5-6.) This argument is rejected for two reasons. First, the test applied in evaluating the ALJ's failure to address lay testimony is to credit the testimony and then determine if any reasonable ALJ might have found Plaintiff disabled. Stout, 454 F.3d at 1056. Applying this test, it is clear that the error was not harmless. If Salazar's testimony that Plaintiff suffered seizures, had trouble concentrating, and had to regularly lie down due to pain and discomfort was accepted as true, any reasonable ALJ would have concluded that Plaintiff was unable to work, at least not at the jobs identified by the ALJ. (AR 49-50, 57-58.)
The second reason the Agency's argument is rejected is because it was not relied on by the ALJ in reaching his decision. Neither the Court nor the Agency can comb through the record on appeal, looking for reasons the ALJ could have relied on to reject the witness's testimony but did not and superimpose them on the ALJ's decision.
See, e.g., Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) ("It is error for the district court to affirm the ALJ's credibility decision based on evidence that the ALJ did not discuss."). For these same reasons, the Agency's argument that the Court should overlook Salazar's testimony because it lacked foundation because, at the time of the administrative hearing, she was not spending a lot of time with Plaintiff (Joint Stip. at 5-6) is also rejected. So, too, is its argument that her testimony was not material because it was cumulative of Plaintiff's testimony. (Joint Stip. at 6.) Though the ALJ could have rejected Salazar's testimony for these reasons, he did not. And ...