Pickett v. Commissioner of Social Security

• Court: District Court, E.D. Washington
• Decided: August 17, 2020
• Docket: 1:19-cv-03143
• Status: Unknown

Opinion

1 2 3 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 4 Aug 17, 2020 5 SEAN F. MCAVOY, CLERK 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF WASHINGTON

11 TERESA P., No. 1:19-CV-03143-JTR

12 Plaintiff, ORDER GRANTING PLAINTIFF’S 13 MOTION FOR SUMMARY v. JUDGMENT AND REMANDING FOR 14 ADDITIONAL PROCEEDINGS 15 ANDREW M. SAUL, 16 COMMISSIONER OF SOCIAL SECURITY 17

18 Defendant.

19 BEFORE THE COURT are cross-motions for summary judgment. ECF 20 No. 15, 16. Attorney Victoria Chhagan represents Teresa P. (Plaintiff); Special 21 Assistant United States Attorney Benjamin Groebner represents the Commissioner 22 of Social Security (Defendant). The parties have consented to proceed before a 23 magistrate judge. ECF No. 6. After reviewing the administrative record and the 24 briefs filed by the parties, the Court GRANTS Plaintiff’s Motion for Summary 25 Judgment; DENIES Defendant’s Motion for Summary Judgment; and 26 REMANDS the matter to the Commissioner for additional proceedings pursuant to 27 42 U.S.C. § 405(g). 28 1 JURISDICTION 2 Plaintiff filed applications for Disability Insurance Benefits and 3 Supplemental Security Income on November 12, 2015 and April 22, 2016, 4 respectively, alleging disability since February 1, 2010, due to fibromyalgia, 5 arthritis in her back, PTSD, anxiety, and depression. Tr. 79. The applications were 6 denied initially and upon reconsideration. Tr. 142-48, 150-69. Administrative Law 7 Judge (ALJ) Tom Morris held a hearing on December 8, 2017, Tr. 38-77, and 8 issued an unfavorable decision on June 19, 2018, Tr. 15-32. Plaintiff requested 9 review by the Appeals Council. Tr. 220-21. The Appeals Council denied Plaintiff’s 10 request for review on April 16, 2019. Tr. 1-6. The ALJ’s June 2018 decision thus 11 became the final decision of the Commissioner, which is appealable to the district 12 court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review 13 on June 20, 2019. ECF No. 1. 14 STATEMENT OF FACTS 15 Plaintiff was born in 1974 and was 36 years old as of her alleged onset date. 16 Tr. 29. She completed high school and some college coursework. Tr. 40, 561, 783. 17 Her work history consists of housekeeping and waitressing. Tr. 47. She has alleged 18 depression since childhood, due to abuse and sexual assault. Tr. 361, 560, 782. She 19 has experienced wide-spread body pain, diagnosed as fibromyalgia, stemming 20 from various injuries and car accidents. Tr. 336, 806. 21 STANDARD OF REVIEW 22 The ALJ is responsible for determining credibility, resolving conflicts in 23 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 24 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 25 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 26 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 27 only if it is not supported by substantial evidence or if it is based on legal error. 28 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 1 defined as being more than a mere scintilla, but less than a preponderance. Id. at 2 1098. Put another way, substantial evidence is such relevant evidence as a 3 reasonable mind might accept as adequate to support a conclusion. Richardson v. 4 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 5 rational interpretation, the Court may not substitute its judgment for that of the 6 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 7 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 8 administrative findings, or if conflicting evidence supports a finding of either 9 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 10 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 11 supported by substantial evidence will be set aside if the proper legal standards 12 were not applied in weighing the evidence and making the decision. Brawner v. 13 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 14 SEQUENTIAL EVALUATION PROCESS 15 The Commissioner has established a five-step sequential evaluation process 16 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 17 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 18 four, the burden of proof rests upon the claimant to establish a prima facie case of 19 entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is 20 met once a claimant establishes that a physical or mental impairment prevents the 21 claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 22 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds 23 to step five, and the burden shifts to the Commissioner to show (1) the claimant 24 can make an adjustment to other work; and (2) the claimant can perform specific 25 jobs that exist in the national economy. Batson v. Commissioner of Social Sec. 26 Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make an 27 adjustment to other work in the national economy, the claimant will be found 28 disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 1 ADMINISTRATIVE DECISION 2 On June 19, 2018, the ALJ issued a decision finding Plaintiff was not 3 disabled as defined in the Social Security Act. 4 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 5 activity since the alleged onset date. Tr. 18. 6 At step two, the ALJ determined Plaintiff had the following severe 7 impairments: chronic obstructive pulmonary disease, fibromyalgia, sprains and 8 strains, spine disorders, affective disorders, and anxiety disorders. Tr. 18. 9 At step three, the ALJ found Plaintiff did not have an impairment or 10 combination of impairments that met or medically equaled the severity of one of 11 the listed impairments. Tr. 18-20. 12 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 13 she could perform light exertion level work with the following limitations:

14 lifting or carrying no more than twenty pounds occasionally with 15 frequent lifting or carrying of objects weighing up to ten pounds. The 16 claimant is able to sit for six hours in an eight-hour workday with normal breaks and stand or walk for four hours in an eight-hour 17 workday or have work tasks that permit working with a sit/stand 18 option. She can frequently kneel and climb ramps and stairs, but never climb ladders, ropes, or scaffolds. The claimant is limited to only 19 occasional stooping and crawling. She should avoid concentrated 20 exposure to cold, vibration, fumes, odors, dusts, gases, poor ventilation, and other pulmonary irritants. She should avoid even 21 moderate exposure to hazards, such as dangerous machinery and 22 unprotected heights. The claimant is capable of understanding and 23 recalling short, simple instructions consistent with unskilled work tasks. She can maintain adequate attendance and concentration, pace 24 and persistence for simple routine tasks. There can be frequent contact 25 with coworkers if it involves a group of five or less people, but there should be no contact with the general public for work tasks. There can 26 be occasional changes to the work environment with a day’s notice. 27 The claimant is not able to perform at a production rate pace (e.g., assembly line work as where the pace is mechanically controlled) but 28 can perform goal oriented work or where the worker has more control 1 over the pace. She may be off-task up to ten percent of the workday. 2 Tr. 20-21. 3 At step four, the ALJ found Plaintiff was unable to perform her past relevant 4 work as a cleaner/housekeeper or waitress. Tr. 29. 5 At step five the ALJ found, considering Plaintiff’s age, education, work 6 experience, and residual functional capacity, there were jobs that existed in 7 significant numbers in the national economy that Plaintiff could perform, 8 specifically identifying the representative occupations of outside deliverer, coin 9 machine collector, and document preparer. Tr. 29, 31. 10 The ALJ thus concluded Plaintiff was not under a disability within the 11 meaning of the Social Security Act at any time from the alleged onset date through 12 the date of the decision. Tr. 31. 13 ISSUES 14 The question presented is whether substantial evidence supports the ALJ’s 15 decision denying benefits and, if so, whether that decision is based on proper legal 16 standards. 17 Plaintiff contends the ALJ erred by (1) improperly rejecting medical opinion 18 evidence; (2) improperly rejecting Plaintiff’s subjective testimony; and (3) 19 improperly rejecting the lay witness testimony. 20 DISCUSSION 21 1. Plaintiff’s subjective statements 22 Plaintiff contends the ALJ erred by improperly rejecting her subjective 23 statements. ECF No. 15 at 14-18. 24 It is the province of the ALJ to make credibility determinations. Andrews v. 25 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). However, the ALJ’s findings must be 26 supported by specific, cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 27 (9th Cir. 1990). Once the claimant produces medical evidence of an underlying 28 1 medical impairment, the ALJ may not discredit testimony as to the severity of an 2 impairment merely because it is unsupported by medical evidence. Reddick v. 3 Chater, 157 F.3d 715, 722 (9th Cir. 1998). Absent affirmative evidence of 4 malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be 5 “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 6 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). “General findings are 7 insufficient: rather the ALJ must identify what testimony is not credible and what 8 evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. 9 Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 10 The ALJ concluded Plaintiff’s medically determinable impairments could 11 reasonably be expected to cause the alleged symptoms; however, Plaintiff’s 12 statements concerning the intensity, persistence and limiting effects of those 13 symptoms were not entirely consistent with the medical evidence and other 14 evidence in the record. Tr. 22. The ALJ explained that he found the objective 15 findings in the case failed to provide strong support for Plaintiff’s allegations. Tr. 16 22-24. 17 An ALJ may cite inconsistencies between a claimant’s testimony and the 18 objective medical evidence in discounting the claimant’s symptom statements. 19 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). But this 20 cannot be the only reason provided by the ALJ. See Lester, 81 F.3d at 834 (the ALJ 21 may not discredit the claimant’s testimony as to subjective symptoms merely 22 because they are unsupported by objective evidence). “[A]n ALJ does not provide 23 specific, clear, and convincing reasons for rejecting a claimant’s testimony by 24 simply reciting the medical evidence in support of his or her residual functional 25 capacity determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 26 2015). The ALJ’s summary of Plaintiff’s treatment over the years does not on its 27 own constitute a clear and convincing basis to discount her allegations of disabling 28 pain and other symptoms. 1 Furthermore, the Court takes note that fibromyalgia is not a condition that 2 generally lends itself to extensive objective findings. See generally, Social Security 3 Ruling 12-2p; Revels v. Berryhill, 874 F.3d 648, 656-57 (9th Cir. 2017). It is not 4 clear that the normal or unremarkable exam findings identified by the ALJ, such as 5 normal gait, intact sensation, or only mildly reduced strength, have any bearing on 6 the existence or severity of Plaintiff’s fibromyalgia, and the ALJ cited to no 7 medical source that indicated as much. As Plaintiff points out in her briefing, no 8 treating medical source indicated that the findings on exam were inconsistent with 9 Plaintiff’s allegations. ECF No. 15 at 17. 10 Defendant argues the ALJ also discounted Plaintiff’s allegations based on 11 her limited ongoing mental health treatment. ECF No. 16 at 5. The Court finds the 12 ALJ did not clearly link Plaintiff’s lack of mental health treatment to his 13 assessment of her reliability. He merely mentioned in the midst of his summary of 14 the treatment evidence and various opinions that “the claimant received limited 15 ongoing mental health treatment” and then summarized the findings showing 16 unremarkable mental status. Tr. 26. Additionally, even if the ALJ did intend to find 17 Plaintiff’s allegations to be undermined by her lack of mental health treatment, an 18 ALJ may not find a claimant’s statements to be unsupported on this basis without 19 first considering the reasons why she has not sought more treatment. Social 20 Security Ruling 16-3p. The Ruling notes such possibilities as lack of access due to 21 finances, the individual may have found ways to cope by minimizing their 22 activities, having intolerable side effects from treatments, or being advised there is 23 no effective treatment to pursue. Id. The record indicates Plaintiff did not have 24 medical coverage at times, or had difficulty getting treatment authorized. Tr. 665, 25 694-95, 893. While it is not clear from the record that lack of access was the reason 26 she did not seek more mental health treatment, it is at minimum a possibility the 27 ALJ needed to consider prior to discrediting her for lack of treatment. The Ninth 28 Circuit has also recognized that “it is a questionable practice to chastise one with a 1 mental impairment for the exercise of poor judgment in seeking rehabilitation.” 2 Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996). Plaintiff indicated that her 3 depression and anxiety often kept her housebound and interfered with her ability to 4 interact with others. Tr. 338, 571, 772. 5 As the ALJ did not clearly link Plaintiff’s lack of mental health treatment to 6 his evaluation of her allegations, and failed to consider any possible explanations 7 for her lack of treatment, this is not a clear and convincing basis to discount her 8 subjective statements. A lack of support from the objective evidence alone is an 9 insufficient basis upon which to discount a claimant’s subjective allegations. Upon 10 remand, the ALJ will reevaluate Plaintiff’s testimony. 11 2. Medical Opinion Evidence 12 Plaintiff asserts the ALJ improperly evaluated the medical opinion evidence 13 by offering insufficient reasons for rejecting the opinions from Drs. Reinmuth, 14 Crank, Barnard, and Cline, and Ms. Starr and Ms. Schwarzkopf. ECF No. 15 at 3- 15 14. 16 When a treating or examining physician’s opinion is contradicted by another 17 physician, the ALJ is required to provide “specific and legitimate reasons” to reject 18 the opinion. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995); Lester v. 19 Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). The specific and legitimate standard 20 can be met by the ALJ setting out a detailed and thorough summary of the facts 21 and conflicting clinical evidence, stating his interpretation thereof, and making 22 findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ is 23 required to do more than offer his conclusions, he “must set forth his 24 interpretations and explain why they, rather than the doctors’, are correct.” Embrey 25 v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 26 An ALJ may discount the opinion of an “other source,” such as a nurse 27 practitioner, if he provides “reasons germane to each witness for doing so.” Molina 28 v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 1 a. Dr. Reinmuth 2 Plaintiff’s treating doctor, Scott Reinmuth, completed medical source 3 statements about Plaintiff’s functional abilities in 2013 and 2017. Tr. 829-30, 899- 4 900.1 In 2013 he opined Plaintiff was markedly impaired in lifting and carrying 5 based on her fibromyalgia, and was severely impaired in standing, walking, lifting, 6 carrying, and crouching based on her right foot fracture and left ankle pain/possible 7 sprain. Tr. 829. He concluded she was limited to no more than sedentary work for 8 two months. Tr. 800. In 2017 Dr. Reinmuth opined Plaintiff needed to lay down 9 for an hour or more every day for pain relief, and predicted full time work would 10 cause her condition to deteriorate, as she was unable to tolerate even mild activity 11 without worsening symptoms. Tr. 899. He predicted she would miss four or more 12 days of work from a full-time job, due to her reports of being bedridden many 13 days, and being in bed for many hours even on good days. Id. He further stated she 14 was severely limited in her exertional capabilities and was unable to meet the 15 demands of even sedentary work on a sustained daily basis. Tr. 900. 16 The ALJ found these opinions to be “excessive in light of the longitudinal 17 treatment history and relying too heavily on the claimant subjective reports.” Tr. 18 25. Though he acknowledged fibromyalgia is a condition that generally carries 19 limited objective findings, he found the level of care and clinical findings there 20 were failed to support the extent of the limitations. Id. 21 22

23 1 The ALJ mistakenly thought the 2017 opinion was completed in 2012, a 24 position Defendant defends. Tr. 25; ECF No. 16 at 9-10. The Court acknowledges 25 Dr. Reinmuth’s handwriting is not perfect, but the date is clearly 2017. Id. 26 Furthermore, the form was sent to Dr. Reinmuth by Plaintiff’s representative, 27 Merit Disability. Id. Plaintiff did not retain Merit Disability until 2015. Tr. 141. 28 She also did not begin seeing Dr. Reinmuth until 2013. Tr. 347. 1 Plaintiff argues the ALJ improperly relied on a limited portion of the record 2 and cited no medical authority for his conclusion that the objective findings were 3 insufficient to support the extent of the limits. ECF No. 15 at 3-8. Plaintiff further 4 argues that the ALJ’s conclusion regarding the limitations being inconsistent with 5 Plaintiff’s own allegations about her daily abilities was flawed, as Dr. Reinmuth 6 was referencing Plaintiff’s ability to perform activities on an on-going full-time 7 basis. Id. Defendant argues that consistency with the record is a legitimate factor 8 for the ALJ to consider in evaluating the weight due to a medical opinion, and the 9 ALJ reasonably pointed to evidence that does not support the extent of the limits 10 and rationally concluded the doctor relied too heavily on Plaintiff’s subjective 11 reports. ECF No. 16 at 7-11. 12 The Court finds the ALJ’s analysis to be insufficient. In finding the opinion 13 unsupported, the ALJ failed to explain what kind of treatment or findings were 14 missing. Dr. Reinmuth listed objective findings that supported his opinion, 15 including tenderness and reduced range of motion. Tr. 899. The ALJ did not 16 explain why these findings were insufficient to support the doctor’s opinion. 17 An ALJ may consider the nature and duration of the treatment relationship 18 in evaluating the weight to be assigned to an opinion. 20 C.F.R. §§ 404.1527(c), 19 416.927(c). While Dr. Reinmuth had only treated Plaintiff a single time upon 20 completion of the 2013 opinion, Plaintiff had reengaged in services and Dr. 21 Reinmuth had been treating her for a year and a half at the time he completed the 22 2017 opinion. Tr. 871-97. The ALJ did not mention this fact, possibly due to the 23 confusion regarding the date the opinion was completed. 24 If a treating provider’s opinions are based “to a large extent” on an 25 applicant’s self-reports and not on clinical evidence, and the ALJ finds the 26 applicant not credible, the ALJ may discount the treating provider’s opinion. 27 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir.2008); see also Bayliss v. 28 Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). However, when an opinion is not 1 more heavily based on a patient’s self-reports than on clinical observations, there is 2 no evidentiary basis for rejecting the opinion. See Ryan v. Comm’r of Soc. Sec, 528 3 F.3d 1194, 1199-1200 (9th Cir. 2008). While Dr. Reinmuth explained that his 4 opinion regarding missed days was based on Plaintiff’s report of being bed ridden 5 much of the time, the ALJ did not offer legally sufficient reasons for discounting 6 Plaintiff’s subjective reports. See supra. The ALJ did not extend this rationale to 7 the remainder of the opinion. There is no evidence that the rest of Dr. Reinmuth’s 8 opinion is more heavily based on Plaintiff’s self-reports than on their year-and-a- 9 half treatment relationship. 10 On remand the ALJ will reconsider the evidence provided by Dr. Reinmuth. 11 b. Dr. Crank 12 In March 2016, Dr. Jeremiah Crank completed a form for the state 13 Department of Social and Health Services, opining that Plaintiff was severely 14 limited by back pain and fibromyalgia, and was unable to meet the demands of 15 sedentary work. Tr. 792-94. 16 The ALJ gave this opinion little weight, finding it was inconsistent with 17 Plaintiff’s longitudinal treatment records and was unsupported by the physical 18 exam that day, which was the first time Dr. Crank had treated Plaintiff, thus 19 demonstrating that he did not have a longitudinal basis for his opinion. Tr. 25-26. 20 Plaintiff argues the ALJ did not have a medical basis for finding the exam 21 results to be unsupportive of the opinion and did not show that the opinion was 22 inconsistent with the remainder of the record, similar to the errors with Dr. 23 Reinmuth. ECF No. 15 at 8-10. Plaintiff further argues that, as a treating source, 24 Dr. Crank would have had access to Plaintiff’s past medical records to review. Id. 25 Defendant argues the ALJ reasonably considered the lack of treatment relationship 26 or objective findings at the single exam in finding the opinion unreliable. ECF No. 27 16 at 11-13. Defendant further reiterates that the ALJ reasonably interpreted the 28 record as a whole as being inconsistent with Dr. Crank’s opinion. 1 An ALJ may reasonably consider the duration and extent of a source’s 2 treatment relationship with a claimant in evaluating the reliability of an opinion. 20 3 C.F.R. §§ 404.1527(c), 416.927(c). However, the ALJ was incorrect that the 2016 4 visit was Dr. Crank’s first time evaluating Plaintiff. The records from Yakima 5 Neighborhood Health Services show Dr. Crank examining Plaintiff as far back as 6 May 2013. Tr. 694-97. While she met with a variety of providers at this clinic, Dr. 7 Crank had seen her at least four times prior to completing the function report, over 8 the span of three years. Tr. 660-64, 665-68, 680-84, 694-97. 9 The Court finds the same rationale as noted above with respect to Dr. 10 Reinmuth applies to the ALJ’s analysis of Dr. Crank. The discussion is not specific 11 enough in terms of how the findings undermine the doctor’s conclusions, 12 particularly in the context of fibromyalgia. On remand, the ALJ will reconsider the 13 evidence provided by Dr. Crank. 14 c. Drs. Barnard and Cline 15 Plaintiff attended a number of psychological evaluations in connection with 16 her receipt of state benefits. Dr. Barnard examined Plaintiff in 2013 and found she 17 had mild to moderate impairment in work-related functioning. Tr. 566. Dr. Cline 18 evaluated Plaintiff in 2016 and found similar mild and moderate limits, and 19 suggested Plaintiff could be referred to vocational rehabilitation for reentry into the 20 workforce following mental health treatment. Tr. 562-63. 21 The ALJ gave these opinions little weight, noting they were accompanied by 22 mostly unremarkable mental status examinations2, were cursory one-time 23 evaluations used for the benefit of the claimant, and were checkbox opinions that 24 did not provide function-by-function assessments of Plaintiff’s limitations. Tr. 27. 25

26 2 The ALJ found Dr. Cline’s report was cut off and lacking the full mental 27 status examination. Tr. 27. The records from DSHS are out of order, but the rest of 28 the exam is contained in this record at Tr. 569. 1 As this claim is being remanded for further consideration of other evidence 2 and Plaintiff’s subjective reports, the ALJ shall also reconsider the psychological 3 evaluations. 4 d. Ms. Starr and Ms. Schwarzkopf 5 The record contains a number of functional assessments completed by non- 6 acceptable sources, including Ms. Starr and Ms. Schwarzkopf, limiting Plaintiff to 7 sedentary or less than sedentary work. Tr. 806-08, 817-18, 821-22. The ALJ found 8 each of these opinions lacking in sufficient clinical findings and based primarily on 9 Plaintiff’s subjective complaints. Tr. 26. 10 As this claim is being remanded for further evaluation of other evidence and 11 Plaintiff’s subjective reports, the ALJ will also reconsider the opinions from the 12 non-acceptable sources. 13 3. Lay witness evidence 14 Plaintiff’s friend James Hale completed a third-party function report in 2016, 15 noting Plaintiff’s difficulty with extended periods of activity, her tendency to stay 16 in bed much of the day, and her difficulties with handling stress and paying 17 attention. Tr. 269-75. 18 The ALJ gave this opinion “some weight” noting Mr. Hale did not have any 19 medical training and was not a disinterested third-party, and that his statements 20 were “primarily observations of the claimant’s ability to function, rather than 21 opinions as to the claimant’s maximum functional capabilities.” Tr. 22. 22 Plaintiff argues the fact that Mr. Hale does not have medical training is 23 precisely what makes him a third party, and his relationship with Plaintiff is what 24 gives him knowledge of how she functions, noting that the rules concerning third- 25 parties anticipate precisely this kind of situation, and self-interest is only a relevant 26 factor if there is some evidence that the witness exaggerated in order to benefit 27 from the claimant’s award. ECF 15 at 18-19. Defendant argues that any error in the 28 ALJ’s analysis is harmless as the ALJ gave adequate reasons for rejecting similar 1 evidence from Plaintiff and the third party was contradicted by more reliable 2 medical evidence that the ALJ credited. ECF No. 16 at 6-7. 3 Lay witness testimony is “competent evidence” as to “how an impairment 4 affects [a claimant’s] ability to work.” Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 5 1050, 1053 (9th Cir. 2006); see also Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th 6 Cir. 1993) (“[F]riends and family members in a position to observe a claimant’s 7 symptoms and daily activities are competent to testify as to her condition.”). An 8 ALJ must give “germane” reasons to discount evidence from these “other sources.” 9 Dodrill, 12 F.3d at 919. 10 The Court finds the ALJ failed to point to any germane reasons for 11 discounting Mr. Hale’s testimony. His lack of medical training and his friendship 12 with Plaintiff are precisely what make him a third-party qualified to provide 13 supportive testimony regarding her functioning. There is no evidence that he 14 exaggerated his statements in order to benefit from them. Valentine v. Comm’r of 15 Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009). The error is not harmless, as 16 the ALJ failed to offer legally sufficient reasons for discounting Plaintiff’s similar 17 assertions and erred in the evaluation of the medical evidence. Molina v. Astrue, 18 674 F.3d 1104, 1122 (9th Cir. 2012). 19 On remand the ALJ will reconsider the third-party evidence along with the 20 rest of the record. 21 CONCLUSION 22 The ALJ’s RFC determination is not supported by substantial evidence and 23 must be reevaluated. On remand, the ALJ shall reevaluate the medical evidence, 24 Plaintiff’s subjective complaints, and the third-party evidence, and make new 25 findings on each of the five steps in the sequential process, taking into 26 consideration any other evidence or testimony relevant to Plaintiff’s disability 27 claim. 28 Accordingly, IT IS ORDERED: 1 1. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is 2|| GRANTED. 3 2. Defendant’s Motion for Summary Judgment, ECF No. 16, is 4|| DENIED. 5 3. The matter is REMANDED to the Commissioner for additional 6|| proceedings consistent with this Order. 7 4. An application for attorney fees may be filed by separate motion. 8 The District Court Executive is directed to file this Order and provide a copy 9|| to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and 10]| the file shall be CLOSED. 11 IT IS SO ORDERED. 12 DATED August 17, 2020.

JOHNT. RODGERS 15 [a UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28