1 U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Jul 16, 2019
3 SEAN F. MCAVOY, CLERK
5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6
7 FELICIA C., NO: 1:18-CV-03051-FVS 8 Plaintiff, ORDER GRANTING PLAINTIFF’S 9 v. MOTION FOR SUMMARY JUDGMENT AND DENYING 10 COMMISSIONER OF SOCIAL DEFENDANT’S MOTION FOR SECURITY, SUMMARY JUDGMENT 11 Defendant. 12
13 BEFORE THE COURT are the parties’ cross-motions for summary judgment. 14 ECF Nos. 14, 19. This matter was submitted for consideration without oral 15 argument. Plaintiff is represented by attorney D. James Tree. Defendant is 16 represented by Special Assistant United States Attorney Leisa A. Wolf. The Court, 17 having reviewed the administrative record and the parties’ briefing, is fully 18 informed. For the reasons discussed below, Plaintiff’s Motion, ECF No. 14, is 19 granted and Defendant’s Motion, ECF No. 19, is denied. 20
21 1 JURISDICTION 2 Plaintiff Felicia C.1 (Plaintiff), filed for disability insurance benefits (DIB) 3 and supplemental security income (SSI) on December 16, 2013, alleging an onset 4 date of November 16, 2013. Tr. 49, 217-26. Benefits were denied initially, Tr.
5 149-51, and upon reconsideration, Tr. 157-67. Plaintiff appeared at a hearing 6 before an administrative law judge (ALJ) on March 1, 2016. Tr. 68-104. On 7 March 25, 2016, the ALJ issued an unfavorable decision, Tr. 49-60, and on
8 January 24, 2012, the Appeals Council denied review. Tr. 1-5. The matter is now 9 before this Court pursuant to 42 U.S.C. §§ 405(g); 1383(c)(3). 10 BACKGROUND 11 The facts of the case are set forth in the administrative hearing and transcripts,
12 the ALJ’s decision, and the briefs of Plaintiff and the Commissioner, and are 13 therefore only summarized here. 14 Plaintiff was 35 years old at the time of the hearing. Tr. 70. She has a GED.
15 Tr. 70. She has work experience as a para-educator, in a shipping office, as a cashier 16 and counter at a casino, and in accounting for a fruit warehouse. Tr. 72-77. Plaintiff 17 testified she is not able to work because of symptoms from anxiety and bipolar 18 disorder. Tr. 77. She left jobs because she would get mad at her supervisor or a
19 coworker and walk out. Tr. 84. She does not go anywhere by herself due to her 20
1In the interest of protecting Plaintiff’s privacy, the Court uses only Plaintiff’s first 21 1 symptoms. Tr. 82. She sleeps a lot and misses work when she is depressed. Tr. 82, 2 258. Plaintiff reports she is unable to handle stressful situations, is impulsive, and 3 cannot handle confrontation. Tr. 268. She has tried medication but has had 4 difficulty finding something that works without side effects. Tr. 85. She sometimes
5 drinks alcohol or smokes marijuana to reduce her anxiety. Tr. 88-89. 6 STANDARD OF REVIEW 7 A district court’s review of a final decision of the Commissioner of Social
8 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 9 limited; the Commissioner’s decision will be disturbed “only if it is not supported by 10 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 11 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a reasonable
12 mind might accept as adequate to support a conclusion.” Id. at 1159 (quotation and 13 citation omitted). Stated differently, substantial evidence equates to “more than a 14 mere scintilla[,] but less than a preponderance.” Id. (quotation and citation omitted).
15 In determining whether the standard has been satisfied, a reviewing court must 16 consider the entire record as a whole rather than searching for supporting evidence in 17 isolation. Id. 18 In reviewing a denial of benefits, a district court may not substitute its
19 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 1156 20 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 21 rational interpretation, [the court] must uphold the ALJ’s findings if they are 1 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an ALJ’s 2 decision on account of an error that is harmless.” Id. An error is harmless “where it 3 is inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 1115 4 (quotation and citation omitted). The party appealing the ALJ’s decision generally
5 bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 6 396, 409-10 (2009). 7 FIVE-STEP EVALUATION PROCESS
8 A claimant must satisfy two conditions to be considered “disabled” within the 9 meaning of the Social Security Act. First, the claimant must be “unable to engage in 10 any substantial gainful activity by reason of any medically determinable physical or 11 mental impairment which can be expected to result in death or which has lasted or
12 can be expected to last for a continuous period of not less than twelve months.” 42 13 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s impairment must 14 be “of such severity that he is not only unable to do his previous work[,] but cannot,
15 considering his age, education, and work experience, engage in any other kind of 16 substantial gainful work which exists in the national economy.” 42 U.S.C. §§ 17 423(d)(2)(A), 1382c(a)(3)(B). 18 The Commissioner has established a five-step sequential analysis to determine
19 whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 404.1520(a)(4)(i)- 20 (v), 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 21 work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is 1 engaged in “substantial gainful activity,” the Commissioner must find that the 2 claimant is not disabled. 20 C.F.R. §§ 404.1520(b), 416.920(b). 3 If the claimant is not engaged in substantial gainful activity, the analysis 4 proceeds to step two. At this step, the Commissioner considers the severity of the
5 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 6 claimant suffers from “any impairment or combination of impairments which 7 significantly limits [his or her] physical or mental ability to do basic work
8 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 9 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 10 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 11 §§ 404.1520(c), 416.920(c).
12 At step three, the Commissioner compares the claimant’s impairment to 13 severe impairments recognized by the Commissioner to be so severe as to preclude a 14 person from engaging in substantial gainful activity. 20 C.F.R. §§
15 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more severe 16 than one of the enumerated impairments, the Commissioner must find the claimant 17 disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 18 If the severity of the claimant’s impairment does not meet or exceed the
19 severity of the enumerated impairments, the Commissioner must pause to assess the 20 claimant’s “residual functional capacity.” Residual functional capacity (RFC), 21 defined generally as the claimant’s ability to perform physical and mental work 1 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the 2 analysis. 3 At step four, the Commissioner considers whether, in view of the claimant’s 4 RFC, the claimant is capable of performing work that he or she has performed in the
5 past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the 6 claimant is capable of performing past relevant work, the Commissioner must find 7 that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the
8 claimant is incapable of performing such work, the analysis proceeds to step five. 9 At step five, the Commissioner should conclude whether, in view of the 10 claimant’s RFC, the claimant is capable of performing other work in the national 11 economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this
12 determination, the Commissioner must also consider vocational factors such as the 13 claimant’s age, education and past work experience. 20 C.F.R. §§ 14 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant is capable of adjusting to other
15 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 16 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 17 work, analysis concludes with a finding that the claimant is disabled and is therefore 18 entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).
19 The claimant bears the burden of proof at steps one through four above. 20 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 21 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 1 in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v. 2 Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 3 ALJ’S FINDINGS 4 At step one, the ALJ found Plaintiff did not engage in substantial gainful
5 activity since November 16, 2013, the alleged onset date. Tr. 51. At step two, the 6 ALJ found that Plaintiff has the following severe impairments: depression/bipolar 7 disorder, anxiety, and personality disorder. Tr. 51. At step three, the ALJ found that
8 Plaintiff does not have an impairment or combination of impairments that meets or 9 medically equals the severity of a listed impairment. Tr. 51. 10 The ALJ then found that Plaintiff has the residual functional capacity to 11 perform a full range of work at all exertional levels but with the following
12 nonexertional limitations: 13 Can perform simple, routine tasks and follow short, simple instructions. She can do work that needs little or no judgment and can 14 perform simple duties that can be learned on the job in a short period of less than thirty days. She can respond appropriately to supervision, 15 but should not be required to work in close coordination with coworkers where teamwork is required. She can deal with occasional 16 changes in the work environment and can do work that requires no contact with the general public to performer the work tasks. 17 Tr. 53. 18 At step four, the ALJ found that Plaintiff is unable to perform any past 19 relevant work. Tr. 71. After considering the testimony of a vocational expert and 20 Plaintiff’s age, education, work experience, and residual functional capacity, the 21 1 that Plaintiff can perform such as production assembler, electronics worker, or 2 garment sorter. Tr. 59. Therefore, at step five, the ALJ concluded that Plaintiff has 3 not been under a disability, as defined in the Social Security Act, from May 1, 2008, 4 through the date of the decision. Tr. 60.
5 ISSUES 6 Plaintiff seeks judicial review of the Commissioner’s final decision denying 7 disability income benefits under Title II and supplemental security income under
8 Title XVI of the Social Security Act. ECF No. 14. Plaintiff raises the following 9 issues for review: 10 1. Whether the ALJ properly evaluated Plaintiff’s symptom complaints; 11 and
12 2. Whether the ALJ properly considered lay witness testimony. 13 ECF No. 14 at 2. 14 DISCUSSION
15 A. Symptom Testimony 16 Plaintiff contends the ALJ improperly considered her symptom testimony. 17 ECF No. 14 at 5-19. An ALJ engages in a two-step analysis to determine whether 18 a claimant’s testimony regarding subjective pain or symptoms is credible. “First,
19 the ALJ must determine whether there is objective medical evidence of an 20 underlying impairment which could reasonably be expected to produce the pain or 21 other symptoms alleged.” Molina, 674 F.3d at 1112 (internal quotation marks 1 reasonably be expected to cause the severity of the symptom she has alleged; she 2 need only show that it could reasonably have caused some degree of the 3 symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal 4 quotation marks omitted).
5 Second, “[i]f the claimant meets the first test and there is no evidence of 6 malingering, the ALJ can only reject the claimant’s testimony about the severity of 7 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the
8 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 9 citations and quotations omitted). “General findings are insufficient; rather, the 10 ALJ must identify what testimony is not credible and what evidence undermines 11 the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th
12 Cir. 1995); see also Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he 13 ALJ must make a credibility determination with findings sufficiently specific to 14 permit the court to conclude that the ALJ did not arbitrarily discredit claimant’s
15 testimony.”). “The clear and convincing [evidence] standard is the most 16 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 17 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 18 924 (9th Cir. 2002)).
19 In assessing a claimant’s symptom complaints, the ALJ may consider, inter 20 alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the 21 claimant’s testimony or between her testimony and her conduct; (3) the claimant’s 1 physicians or third parties concerning the nature, severity, and effect of the 2 claimant’s condition. Thomas, 278 F.3d at 958-59. 3 This Court finds that the ALJ did not provide specific, clear, and convincing 4 reasons supported by substantial evidence for finding Plaintiff’s statements
5 concerning the intensity, persistence, and limiting effects of her symptoms not 6 credible. Tr. 54-57. 7 First, the ALJ found the medical records are “minimal” and do not document
8 the degree of impairment alleged. Tr. 54. The medical evidence is a relevant 9 factor in determining the severity of a claimant’s pain and its disabling effects. 10 Rollins v. Massanari, 261 F.3d 853,857 (9th Cir. 2001); 20 C.F.R. §§ 11 404.1529(c)(2), 416.929(c)(2) (2011). Minimal objective evidence is a factor
12 which may be relied upon in discrediting a claimant’s testimony, although it may 13 not be the only factor. See Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). 14 The Court disagrees that the records in this case are “minimal.” In nearly every
15 month since the alleged onset date, Plaintiff attended at least one mental health 16 treatment appointment and during most months, Plaintiff attended multiple 17 treatment sessions. See Tr. 433, 444, 475 (three appointments in February 2014); 18 Tr. 466, 469, 471 (three appointments in March 2014); Tr. 459, 462, 464 (three
19 appointments in April 2014); Tr. 451, 453, 457 (three appointments in May 2014); 20 Tr. 488, 490 (two appointments in June 2014); Tr. 496-97 (two appointments in 21 August 2014); Tr. 501-02 (two appointments in October 2014); Tr. 507, 516 (two 1 558, 559, 562, 564, 566, 570-71, 575-76, 577, 581, 585, 586, 590-92, 596-97, 601- 2 03, 607 (multiple appointments monthly in January, March, June, July, August, 3 September, October, and November 2015); see additionally Tr. 437, 447, 493, 4 516, 525, 538-39, 608 (appointments in December 2013, January, July 2014, and
5 December 2014, and February, April, May and December 2015). This is not 6 “minimal” treatment or a “minimal” record. Indeed, the ALJ acknowledged 7 Plaintiff “consistently sought treatment for longstanding psychiatric impairment”
8 (Tr. 54) and “attended therapy appointments on a regular basis,” (Tr. 57), but 9 contradictorily asserted she “has a longstanding history of mental health 10 impairments for which she has sought somewhat sporadic treatment” (Tr. 57). The 11 ALJ’s characterization of the treatment record is not accurate.
12 Furthermore, the ALJ’s characterization of the record as “minimal” reflects a 13 tendency to minimize the record. The ALJ stated that treatment notes indicate 14 Plaintiff’s suicide attempt in November 2013 (just prior to the alleged onset date)
15 was “mild in nature.” Tr. 55 (citing Tr. 413). While the record states she has a 16 “mild overdose,” it further states “she also cut her wrists.” Tr. 413. The 17 implication that Plaintiff’s suicide attempt was “mild” based on the ALJ’s selective 18 discussion of the record is misleading.
19 Additionally, the ALJ found that records after May 2015 “show little 20 significant change in the claimant’s condition” and cited largely positive findings 21 from September, November, and December 2015. Tr. 56 (citing 581-82, 604, 1 indicating Plaintiff was in distress. During a July medication management 2 appointment, Plaintiff reported mood swings and constant irritable mood and her 3 mental status exam noted a sad mood and congruent affect, impaired memory, 4 concentration and attention, and only fair insight and judgment. Tr. 553-54.
5 During a counseling session a week later, Plaintiff had an anxious mood and affect 6 and she became quite anxious, tearful, withdrawn, and sullen when discussing 7 entering group therapy. Tr. 558. Several days later, Plaintiff made another suicide
8 attempt by overdose. Tr. 688. In August, Plaintiff endorsed depression, anxiety, 9 anger/irritability, difficulty sleeping, and difficulty concentrating. Tr. 566. Later 10 in the month, she reported an improved mood but feelings of guilt, poor 11 concentration, and low energy. Tr. 571. She was medication compliant but had
12 severe side effects, so her medication was changed. Tr. 571. Even if the ALJ 13 accurately characterized the record to this point (and the Court does not so find), 14 the failure to acknowledge the records leading up to and after the July 2015 suicide
15 attempt and characterization of that period of time as one of “no significant 16 change” is a significant oversight. 17 The ALJ found that while the record reflects “some waxing and waning of 18 symptoms,” her mental status exam results are “largely unremarkable” and show
19 “little impairment.” Tr. 54, 57. The ALJ cited a number of mental status exam 20 results to demonstrate they were “unremarkable” or “unchanged,” but minimized 21 or failed to acknowledge negative findings. Tr. 55-56. For example, the ALJ cited 1 with logical and linear thought form, and good insight and judgment. Tr. 56 (citing 2 Tr. 539). However, the record indicates several abnormal mental status exam 3 findings: Plaintiff’s mood was sad, her affect was congruent and constricted, and 4 her memory, concentration, and attention were impaired. Tr. 539-40. The ALJ
5 failed to note a mental status exam in July 2015with the same findings. Tr. 553. 6 Further, many mental status exams indicate Plaintiff’s mood was anxious or 7 depressed with typically congruent affect or other negative findings. See Tr. 459
8 (tearful, abnormal motor activity secondary to anxiety, passively cooperative, 9 insight and judgment poor, mood not doing well and affect congruent), 466 10 (abnormal motor activity, mood anxious and depressed, insight and judgment 11 poor), 471 (abnormal motor activity secondary to anxiety), 493 (mood is increased
12 depression, thought content is worried, insight fair), 508 (downcast, expresses 13 depression and anxiety, sleeping 20 hours a day, slow speech, decreased energy 14 and motivation), 520 (improving but mood remains depressed with a congruent
15 affect), 561(affect subdued, eye contact fair, insight and judgment fair), 582 (mood 16 not very good, affect congruent, eye contact fair, insight and judgment fair), 587 17 (cooperative but tearful, mood not very good, affect congruent, eye contact fair, 18 insight and judgment poor). Tr. 587. Thus, the ALJ’s characterization of
19 Plaintiff’s mental status exam generally as “unremarkable” and part of a minimal 20 record is not supported by substantial evidence. This is not a clear and convincing 21 reason for rejecting Plaintiff’s symptom testimony. 1 2 Second, the ALJ found that while Plaintiff attends therapy regularly, “she 3 has irregularly taken her medication.” Tr. 54. Unexplained or inadequately 4 explained non-compliance with treatment may reflect on a claimant’s credibility.
5 See Molina, 674 F.3d at 1113-14; Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th 6 Cir. 2008); see also Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (an ALJ 7 may consider a claimant’s unexplained or inadequately explained failure to follow
8 a prescribed course of treatment when assessing a claimant’s credibility). The ALJ 9 observed that in May 2015, Plaintiff reported “really bad” irritable mood and 10 anxiety, but she had stopped all medications a couple of weeks after starting them. 11 Tr. 56, 539. This is the only record cited by the ALJ in support of the conclusion
12 that Plaintiff “irregularly” took her medication. 13 Although Plaintiff reported stopping her medication, the ALJ did not 14 consider her explanation for doing so. An ALJ “will not find an individual’s
15 symptoms inconsistent with the evidence in the record on this basis without 16 considering possible reasons he or she may not comply with treatment or seek 17 treatment.” Social Security Ruling (SSR) 16-3p at *8 (March 24, 2016), available 18 at 2016 WL 123794. Symptom claims are undermined “by unexplained, or
19 inadequately explained, failure to seek treatment or follow a prescribed course of 20 treatment. While there are any number of good reasons for not doing so, a 21 claimant’s failure to assert one, or a finding by the ALJ that the proffered reason is 1 not believable, can cast doubt on the sincerity of the claimant’s pain testimony.” 2 Fair v. Bowen 885 F.2d 597, 603 (9th Cir. 1989) (internal citations omitted). 3 The ALJ failed to note that Plaintiff explained she discontinued her 4 medications due to side effects. Tr. 559. In March 2015, she had been medication
5 adherent but was experiencing side of dizziness, vaginal bleeding, and bruising. 6 Tr. 535. In May 2015, she reported that she had stopped all medications the 7 previous month. Tr. 539. Her headaches and bleeding had resolved since being
8 off the medications although her mood was irritable and anxiety increased. Tr. 9 539. In July 2015, she said she continued to take Lorazepam although she did not 10 find it to be helpful and reported that she “self discontinued all medications except 11 the lorazepam a few months ago due to being frustrated with the side effects.” Tr.
12 559. The ALJ failed to address the side effects Plaintiff experienced as 13 justification for discontinuing her medication. 14 Indeed, the record indicates side effects from medication have been an
15 ongoing barrier to Plaintiff’s treatment. Tr. 453 (“Many of her symptomatic 16 concerns have not improved in the past mainly due to side effect issues with most 17 medications.”), 457 (not stable on medication), 459 (medication making her feel 18 ill), 464 (second antidepressant made her feel sick), 490 (“has not been on a
19 successful medication” and “struggles with side effects”), 493 (many side effects 20 from new medication), 530 (list of medications attempted and side effects), 535 21 (medication adherent with side effects of dizziness and bleeding), 571 (medication 1 medications give her side effects and appears to be very sensitive.”), 577 2 (medication compliant, medication adjusted due to side effects), 584 (“every mood 3 stabilizer documented to have caused some form of an adverse effect”). 4 Plaintiff also observes that her difficulty in maintaining treatment may be
5 attributable to her mental health impairments. ECF No. 14 at 16. One provider 6 noted that Plaintiff’s borderline personality disorder “is a problem for her 7 treatment. She seems to be attributing unrelated symptoms as side effects of
8 medications.” Tr. 588. Similarly, “Courts in this circuit have noted on multiple 9 occasions that noncompliance with treatment is consistent with a diagnosis of 10 bipolar disorder.” O’Neill v. Berryhill, No. C17-1700 BHS, 2018 WL 2316223, at 11 *4 (W.D. Wash. May 22, 2018) (citing Winter v. Berryhill, 711 Fed.Appx. 847,
12 851 (9th Cir. 2017) (finding bipolar claimant’s noncompliance with treatment did 13 not undermine her claimed level of disability, “as noncompliance with treatment 14 by individuals with bipolar disorder is consistent with their diagnosis”); Brewes v.
15 Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1164 (9th Cir. 2012) (stating that 16 claimant’s difficulty following through with treatment was “entirely consistent” 17 with her impairments from bipolar disorder, depression, anxiety, and 18 agoraphobia)).
19 Based on the foregoing, the ALJ’s conclusion that Plaintiff’s symptom 20 claims are undermined by her noncompliance with medication was not reasonable. 21 Plaintiff was engaged in regular treatment, tried numerous medications, and 1 disorder and bipolar disorder may also be contributing factors to any 2 noncompliance with medication, which was not considered by the ALJ. In this 3 case, the ALJ’s finding that Plaintiff “irregularly” took her medication is not 4 supported by substantial evidence, and this is not a clear and convincing reason to
5 reject her symptom claims. 6 Third, the ALJ found Plaintiff’s activities are inconsistent with her 7 allegations of impairment. Tr. 54, 57. It is reasonable for an ALJ to consider a
8 claimant’s activities which undermine claims of totally disabling pain in assessing 9 a claimant’s symptom complaints. See Rollins, 261 F.3d at 857. However, it is 10 well-established that a claimant need not “vegetate in a dark room” in order to be 11 deemed eligible for benefits. Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987).
12 Notwithstanding, if a claimant is able to spend a substantial part of her day 13 engaged in pursuits involving the performance of physical functions that are 14 transferable to a work setting, a specific finding as to this fact may be sufficient to
15 discredit an allegation of disabling excess pain. Fair v. Bowen, 885 F.2d 597, 603 16 (9th Cir. 1989). Furthermore, “[e]ven where [Plaintiff’s daily] activities suggest 17 some difficulty functioning, they may be grounds for discrediting the claimant’s 18 testimony to the extent that they contradict claims of a totally debilitating
19 impairment.” Molina, 674 F.3d at 1113. 20 The ALJ observed that although Plaintiff complained of a disabling 21 impairment which makes it difficult for her to leave her home, the record is 1 hiking. Tr. 57 (citing Tr. 530, 539, 592, 660). The ALJ “gave particular weight” 2 to the fact that Plaintiff homeschools her son who is in the seventh grade and is 3 disabled. Tr. 54, 57. The ALJ said, “[w]hile she attempted to minimize this fact at 4 her hearing, it suggests a much higher degree of functioning than she now claims
5 and is also a situational factor unrelated to her impairments that would make it 6 difficult for her to pursue employment.” Tr. 57. 7 The ALJ’s characterization of Plaintiff’s activities overstates their frequency
8 and reflection of Plaintiff’s abilities. While Plaintiff on one occasion mentioned 9 “she has been drinking more lately going out with her friends,” Tr. 530, when 10 questioned about it at the hearing she stated she went out “occasionally” and the 11 only way she could manage it was to drink alcohol at home beforehand. Tr. 87-88.
12 With regard to camping, hiking, and fishing, Plaintiff stated she spent time 13 camping and fishing “and staying away from people” and did so in order to stay 14 busy. Tr. 545, 553. She went out with a hiking group on one occasion because she
15 “loves hiking but felt she didn’t want to be there. ‘I like getting away from 16 everyone and not having to deal with things and other people.’” Tr. 530. These 17 qualifications regarding her activities are consistent with Plaintiff’s allegations but 18 were not considered by the ALJ.
19 Similarly, the ALJ’s finding regarding homeschooling overstates the record. 20 Plaintiff’s son is autistic, Tr. 581, and Plaintiff receives support from her mother in 21 caring for him, Tr. 507. The record indicates that she “is engaged in her son’s 1 but she was sleeping 20 hours a day and experiencing decreased energy and 2 motivation. Tr. 508. Plaintiff testified that she helps her son as much as she can, 3 “but it’s hard because . . . the last few months I’ve been going through my 4 depression, it’s been like I sleep a lot.” Tr. 82. She testified that her daughter
5 usually helps her son after she gets home from school at 11:30. Tr. 82. Without 6 any basis, the ALJ asserted that Plaintiff “attempted to minimize” her 7 homeschooling efforts at the hearing, but the ALJ did not acknowledge that
8 Plaintiff’s testimony is supported by her statements in the record. 9 Even if the ALJ’s findings regarding Plaintiff’s daily activities could be 10 considered reasonable, the ALJ’s other errors in interpreting the record make the 11 ALJ’s characterization of Plaintiff’s daily activities suspect, as well. Based on the
12 foregoing, this is not a clear and convincing reason to reject Plaintiff’s symptom 13 claims. 14 B. Lay Witness Testimony
15 Plaintiff contends the ALJ improperly rejected the testimony of Plaintiff’s 16 brother. ECF No. 14 at 19-21. Plaintiff’s brother testified that he lives a few 17 blocks away. Tr. 91. He testified that he witnessed Plaintiff have a blackout or 18 “seizure-like” event a year or more before the hearing. Tr. 93. It lasted about six
19 hours and he witnessed convulsions and shaking. Tr. 93. She was halfway 20 coherent but it was hard to get her attention. Tr. 93. He testified that when she has 21 a depressive episode, she stays in her room or the bathroom and will not come out, 1 treatment” to others. Tr. 93-94. She might not come out for days. Tr. 94. He 2 testified that he has observed her having “impulse control” problems and breaking 3 every dish in her house. Tr. 93. He had to fix her computer because she broke it 4 during an episode. Tr. 93. She cannot be calmed down and throws and breaks
5 things, slams doors, and ends relationships when she is in that state. Tr. 94. Her 6 brother testified he has witnessed such behavior because Plaintiff’s children call 7 him when they need help. Tr. 94.
8 An ALJ must consider the testimony of lay witnesses in determining 9 whether a claimant is disabled. Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 10 1050, 1053 (9th Cir. 2006). Lay witness testimony regarding a claimant’s 11 symptoms or how an impairment affects ability to work is competent evidence and
12 must be considered by the ALJ. If lay testimony is rejected, the ALJ “‘must give 13 reasons that are germane to each witness.’” Nguyen v. Chater, 100 F.3d 1462, 14 1467 (9th Cir, 1996) (citing Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993)).
15 The fact that a lay witness is a family member is not proper grounds for rejecting 16 his or her testimony. Smolen, 80 F.3d at 1289; see Dodrill, 12 F.3d at 918-19; see 17 also Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009). 18 The ALJ gave little weight to the testimony of Plaintiff’s brother. Tr. 58.
19 First, the ALJ found the symptoms of Plaintiff “often being unable to leave her 20 room and convulsing due to her impairments . . . are not reflected in the treatment 21 notes.” Tr. 58. The ALJ noted Plaintiff “reports she leaves the house regularly” 1 did not testify that Plaintiff is “often” unable to leave her room, only that she will 2 sometimes not leave her room for days at a time during a depressive episode. Tr. 3 93-94. Furthermore, the ALJ overlooked at least one corroborating record from 4 December 2013 indicating Plaintiff reported that during depressive episodes she
5 hides in her room and sleeps much of the time. ECF No. 14 at 21; Tr. 439. 6 Plaintiff also points out she has no memory of the events surrounding her two 7 suicide attempts, similar to the “blackouts” mentioned by her brother. ECF No.14
8 at 21; Tr. 437, 453, 564. While the ALJ is correct that there is no medical record 9 of convulsive symptoms, in light of the ALJ’s other oversights and overstatements 10 regarding the record and the testimony of Plaintiff’s brother, this is insufficient to 11 constitute substantial evidence undermining his statements.
12 Second, the ALJ found the testimony of Plaintiff’s brother appears to be 13 based on Plaintiff’s subjective complaints which the ALJ found to be not credible. 14 Tr. 58. The basis for the ALJ’s finding is unclear, as Plaintiff’s brother testified
15 that he witnessed the symptoms he testified about. Tr. 91-95. Even if the ALJ is 16 correct that Plaintiff’s brother’s testimony is based on Plaintiff’s subjective 17 complaints, this is not a legitimate basis for rejecting that testimony because as 18 discussed supra, the ALJ’s reasons for rejecting Plaintiff’s subjective complaints
19 were not legally sufficient. 20 CONCLUSION 21 Having reviewed the record and the ALJ’s findings, this Court concludes the 1 The ALJ must reconsider Plaintiff’s symptom complaints and the testimony of 2 Plaintiff’s brother. Because the ALJ’s overlooked or selectively considered portions 3 of the treatment record favorable to Plaintiff, and because there is no examining or 4 treating psychological opinion regarding Plaintiff’s limitations in the record, on
5 remand the ALJ shall obtain testimony from a medical expert who has the opportunity 6 to review the entire record and render an opinion regarding Plaintiff’s functional 7 limitations. Accordingly,
8 1. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is GRANTED. 9 2. Defendant’s Motion for Summary Judgment, ECF No. 19, is DENIED. 10 3. This case is REVERSED and REMANDED for further administrative 11 proceedings consistent with this Order pursuant to sentence four of 42 U.S.C. §
12 405(g). 13 IT IS SO ORDERED. The District Court Clerk is directed to enter this 14 Order and provide copies to counsel. Judgment shall be entered for Plaintiff and the
15 file shall be CLOSED. 16 DATED July 16, 2019.
17 s/ Fred Van Sickle 18 FRED VAN SICKLE Senior United States District Judge 19 20 21