Claudette Smith v. Jo Anne B. Barnhart

Case 5:06-cv-01067-E Document 17 Filed 05/08/07 Page 1 of 5 Page ID #:45 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFO...

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Case 5:06-cv-01067-E Document 17 Filed 05/08/07 Page 1 of 5 Page ID #:45

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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CLAUDETTE SMITH,

) ) Plaintiff, ) ) v. ) ) JO ANNE B. BARNHART, COMMISSIONER ) OF SOCIAL SECURITY ADMINISTRATION, ) ) ) Defendant. ) ___________________________________)

NO. ED CV 06-1067-E

MEMORANDUM OPINION AND ORDER OF REMAND

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Pursuant to sentence four of 42 U.S.C. section 405(g), IT IS

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HEREBY ORDERED that Plaintiff’s and Defendant’s motions for summary

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judgment are denied and this matter is remanded for further

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administrative action consistent with this Opinion.

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PROCEEDINGS

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Plaintiff filed a complaint on October 2, 2006, seeking review

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of the Commissioner’s denial of benefits.

The parties filed a consent

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to proceed before a United States Magistrate Judge on October 25,

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2006.

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Plaintiff filed a motion for summary judgment on March 14,

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2007.

Defendant filed a cross-motion for summary judgment on

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April 13, 2007.

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without oral argument.

The Court has taken the motions under submission See L.R. 7-15; “Order,” filed October 4, 2006.

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BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

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Plaintiff asserts disability based on, inter alia, alleged mental problems and alleged problems using her right hand

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(Administrative Record (“A.R.”) 576-90).

Plaintiff testified to

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mental and exertional limitations of allegedly disabling severity.

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Id.

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potentially corroborating written statements in which the daughter

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asserted Plaintiff cannot use her right hand and has profound

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memory/mental problems (A.R. 287-95).

Plaintiff’s daughter, who lives with Plaintiff, submitted

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The Administrative Law Judge (“ALJ”) found Plaintiff has severe

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impairments that prevent the performance of Plaintiff’s past relevant

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work (A.R. 431-40).

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retains the residual functional capacity to perform other work,

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including assembly and hand packaging work (A.R. 432-42).

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the conclusion Plaintiff is not disabled, the ALJ expressly found

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Plaintiff’s contrary testimony not credible, but failed to mention the

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daughter’s potentially corroborative statements (A.R. 426-42).

The ALJ also found, however, that Plaintiff

In reaching

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STANDARD OF REVIEW

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Under 42 U.S.C. section 405(g), this Court reviews the 2

Case 5:06-cv-01067-E Document 17 Filed 05/08/07 Page 3 of 5 Page ID #:47

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Commissioner’s decision to determine if: (1) the Commissioner’s

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findings are supported by substantial evidence; and (2) the

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Commissioner used proper legal standards.

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763 F.2d 1061, 1064 (9th Cir. 1985).

See Swanson v. Secretary,

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DISCUSSION

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In evaluating the credibility of a claimant’s assertions of functional limitations, the ALJ must consider lay witnesses’ reported

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observations of the claimant.

See Regennitter v. Commissioner, 166

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F.3d 1294, 1298 (9th Cir. 1999).

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observe a claimant’s symptoms and daily activities are competent to

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testify as to [the claimant’s] condition.”

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F.3d 915, 918-19 (9th Cir. 1993); 20 CFR § 404.1513(e)(2)

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(“[o]bservations by non-medical sources” “may also help us to

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understand how your impairment affects your ability to work”).

“[F]amily members in a position to

Dodrill v. Shalala, 12

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“[T]he ALJ can reject the testimony of lay witnesses only if he

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[or she] gives reasons germane to each witness whose testimony he [or

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she] rejects.”

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A conflict with the medical evidence, for example, can be a “germane

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reason” to reject the testimony of a lay witness.

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236 F.3d 503 (9th Cir. 2001).

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family member, however, is not a sufficient reason to reject the

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witness’ testimony.

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F.3d at 1298.

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Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996).

See Lewis v. Apfel,

The mere fact that a witness is a

See Smolen, 80 F.3d at 1289; Regennitter, 166

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In attempting to avoid the conclusion that the ALJ’s failure to

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mention the daughter’s statements constituted error, Defendant argues

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that the daughter did not make “any statement about Plaintiff’s

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functional limitations” (Defendant’s Motion at 7).

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frivolous.

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inability to use her right hand plainly are “statement[s] about

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Plaintiff’s functional limitations.”

This argument is

The daughter’s statements regarding Plaintiff’s alleged

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Defendant also argues there exist other reasons, unspecified by

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the ALJ, that could justify the rejection of the daughter’s statements

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(Defendant’s Motion at 7).

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arguments, however potentially persuasive, are not cognizable by the

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Court.

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(district court cannot affirm on the basis of evidence the ALJ failed

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to discuss); Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001)

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(court “cannot affirm the decision of an agency on a ground that the

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agency did not invoke in making its decision”).

The Ninth Circuit has ruled that such

See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)

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Thus, the ALJ erred by failing to mention the daughter’s

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statements.

Where, as here, an ALJ fails properly to consider

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competent lay evidence favorable to a claimant, the district court

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cannot deem the error harmless unless no reasonable ALJ, when fully

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crediting the lay evidence, could have reached a different disability

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determination.

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Cir. 2006).

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fully crediting the statements of Plaintiff’s daughter, could have

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reached a different disability determination regarding Plaintiff.

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See Stout v. Commissioner, 454 F.3d 1050, 1056 (9th

This Court is unable to conclude that no reasonable ALJ,

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When a court reverses an administrative determination, “the

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proper course, except in rare circumstances, is to remand to the

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agency for additional investigation or explanation.”

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537 U.S. 12, 16 (2002) (citations and quotations omitted).

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proper where, as here, additional administrative proceedings could

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remedy the defects in the decision.

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599, 603 (9th Cir. 1989); see generally Kail v. Heckler, 722 F.2d

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1496, 1497 (9th Cir. 1984).

INS v. Ventura, Remand is

McAllister v. Sullivan, 888 F.2d

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CONCLUSION

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motions for summary judgment are denied and this matter is remanded

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for further administrative action consistent with this Opinion.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED:

May 8, 2007.

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____________/S/________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE

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The Court has not reached any other issue raised by Plaintiff except insofar as to determine that Plaintiff’s suggestion of reversal rather than remand is unpersuasive. The Court is mindful of the prior remands and the protracted nature of these proceedings. However, in light of evidence that Plaintiff performed substantial gainful activity during part of her claimed period of disability, and given other apparent inconsistencies in Plaintiff’s statements, reversal with a directive for the payment of benefits would be inappropriate at this time. 5