(SS) Westfall v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GLENN A. WESTFALL, No. 2:19-cv-0957 DB 12 Plaintiff, 13 v. ORDER 14 ANDREW SAUL, Commissioner of Social Security,1 15 16 Defendant. 17 18 This social security action was submitted to the court without oral argument for ruling on 19 plaintiff’s motion for summary judgment and defendant’s cross-motion for summary judgment.2 20 Plaintiff’s motion argues that the Administrative Law Judge’s treatment of the medical opinion 21 evidence and the subjective testimony was erroneous. 22 //// 23 //// 24 1 Andrew Saul became the Commissioner of the Social Security Administration on June 17, 2019. 25 See https://www.ssa.gov/agency/commissioner.html (last visited by the court on July 30, 2019). Accordingly, Andrew Saul is substituted in as the defendant in this action. See 42 U.S.C. § 26 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office of the Commissioner shall, in his official capacity, be the proper defendant”). 27 2 Both parties have previously consented to Magistrate Judge jurisdiction over this action 28 1 For the reasons explained below, plaintiff’s motion is granted, the decision of the 2 Commissioner of Social Security (“Commissioner”) is reversed, and the matter is remanded for 3 the payment of benefits. 4 PROCEDURAL BACKGROUND 5 In June of 2016, plaintiff filed an application for Disability Insurance Benefits (“DIB”) 6 under Title II of the Social Security Act (“the Act”), alleging disability beginning on December 2, 7 2015. (Transcript (“Tr.”) at 16, 252-58.) Plaintiff’s alleged impairments included back pain, leg 8 cramps, major depressive disorder, migraines, and sleep disorder. (Id. at 288.) Plaintiff’s 9 application was denied initially, (id. at 177-81), and upon reconsideration. (Id. at 184-88.) 10 Plaintiff requested an administrative hearing and a hearing was held before an 11 Administrative Law Judge (“ALJ”) on November 30, 2017. (Id. at 91-111.) Plaintiff was 12 represented by an attorney and testified at the administrative hearing. (Id. at 91-95.) In a 13 decision issued on June 15, 2018, the ALJ found that plaintiff was not disabled. (Id. at 29.) The 14 ALJ entered the following findings: 15 1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2019. 16 2. The claimant has not engaged in substantial gainful activity 17 since December 2, 2015, the alleged onset date (20 CFR 404.1571 et seq.). 18 3. The claimant has the following severe impairments: exogenous 19 obesity, headaches, peripheral neuropathy, cervical spine radiculopathy and myofascial strain, gastroesophageal reflux 20 disease, status post failed spinal surgical syndrome (July 2008 initial surgery and October 2009 corrective surgery), degenerative disc 21 disease of the lumbar spine with radiculopathy, sciatica due to displacement of the lumbar spine disc, bilateral shoulder 22 sprain/strain, depressive disorder and post-traumatic stress disorder (20 CFR 404.1520(c)). 23 4. The claimant does not have an impairment or combination of 24 impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 25 (20 CFR 404.1520(d), 404.1525, and 404.1526). 26 5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform 27 light work as defined in 20 CFR 404.1567(b) except that he can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, 28 and crawl; can never climb ladders or scaffolds; can never work at 1 unprotected heights; must avoid concentrated exposure to moving mechanical parts, humidity and wetness, extreme temperatures, 2 vibrations and noise; and is limited to understanding, remembering, and carrying out simple, routine, and repetitive tasks; using judgment 3 limited to simple work-related decisions; and socially interacting appropriately to the public frequently. 4 6. The claimant is unable to perform any past relevant work (20 5 CFR 404.1565). 6 7. The claimant was born [in] 1972 and was 43 years old, which is defined as a younger individual age 18-49, on the alleged disability 7 onset date (20 CFR 404.1563). 8 8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564). 9 9. Transferability of job skills is not material to the determination of 10 disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled,” 11 whether or not the claimant has transferable job skills (See SSR 82- 41 and 20 CFR Part 404, Subpart P, Appendix 2). 12 10. Considering the claimant’s age, education, work experience, and 13 residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 14 CFR 404.1569 and 404.1569(a)). 15 11. The claimant has not been under a disability, as defined in the Social Security Act, from December 2, 2015, through the date of this 16 decision (20 CFR 404.1520(g)). 17 (Id. at 18-28.) 18 On May 2, 2019, the Appeals Council denied plaintiff’s request for review of the ALJ’s 19 June 15, 2018 decision. (Id. at 1-5.) Plaintiff sought judicial review pursuant to 42 U.S.C. § 20 405(g) by filing the complaint in this action on May 26, 2019. (ECF. No. 1.) 21 LEGAL STANDARD 22 “The district court reviews the Commissioner’s final decision for substantial evidence, 23 and the Commissioner’s decision will be disturbed only if it is not supported by substantial 24 evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158-59 (9th Cir. 2012). 25 Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to 26 support a conclusion. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001); Sandgathe v. 27 Chater, 108 F.3d 978, 980 (9th Cir. 1997). 28 //// 1 “[A] reviewing court must consider the entire record as a whole and may not affirm 2 simply by isolating a ‘specific quantum of supporting evidence.’” Robbins v. Soc. Sec. Admin., 3 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 4 1989)). If, however, “the record considered as a whole can reasonably support either affirming or 5 reversing the Commissioner’s decision, we must affirm.” McCartey v. Massanari, 298 F.3d 1072, 6 1075 (9th Cir. 2002). 7 A five-step evaluation process is used to determine whether a claimant is disabled. 20 8 C.F.R. § 404.1520; see also Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). The five-step 9 process has been summarized as follows: 10 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. 11 Step two: Does the claimant have a “severe” impairment? If so, 12 proceed to step three. If not, then a finding of not disabled is appropriate. 13 Step three: Does the claimant’s impairment or combination of 14 impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is automatically determined 15 disabled. If not, proceed to step four. 16 Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. 17 Step five: Does the claimant have the residual functional capacity to 18 perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 19 20 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 21 The claimant bears the burden of proof in the first four steps of the sequential evaluation 22 process. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5 (1987). The Commissioner bears the burden 23 if the sequential evaluation process proceeds to step five. Id.; Tackett v. Apfel, 180 F.3d 1094, 24 1098 (9th Cir. 1999). 25 //// 26 //// 27 //// 28 //// 1 APPLICATION 2 Plaintiff’s pending motion asserts the following two principal claims: (1) the ALJ’s 3 treatment of the medical opinion evidence was erroneous; and (2) the ALJ’s treatment of the lay 4 witness testimony constituted error.3 (Pl.’s MSJ (ECF No. 12) at 7-194) 5 I. Medical Opinion Evidence 6 The weight to be given to medical opinions in Social Security disability cases depends in 7 part on whether the opinions are proffered by treating, examining, or nonexamining health 8 professionals. Lester, 81 F.3d at 830; Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). “As a 9 general rule, more weight should be given to the opinion of a treating source than to the opinion 10 of doctors who do not treat the claimant . . . .” Lester, 81 F.3d at 830. This is so because a 11 treating doctor is employed to cure and has a greater opportunity to know and observe the patient 12 as an individual. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Bates v. Sullivan, 894 13 F.2d 1059, 1063 (9th Cir. 1990). 14 The uncontradicted opinion of a treating or examining physician may be rejected only for 15 clear and convincing reasons, while the opinion of a treating or examining physician that is 16 controverted by another doctor may be rejected only for specific and legitimate reasons supported 17 by substantial evidence in the record. Lester, 81 F.3d at 830-31. “The opinion of a nonexamining 18 physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion 19 of either an examining physician or a treating physician.” (Id. at 831.) Finally, although a 20 treating physician’s opinion is generally entitled to significant weight, “‘[t]he ALJ need not 21 accept the opinion of any physician, including a treating physician, if that opinion is brief, 22 conclusory, and inadequately supported by clinical findings.’” Chaudhry v. Astrue, 688 F.3d 661, 23 671 (9th Cir. 2012) (quoting Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 24 2009)). 25 //// 26 3 The court has reordered and reorganized plaintiff’s claims for purposes of clarity and efficiency. 27 4 Page number citations such as this one are to the page number reflected on the court’s CM/ECF 28 1 Here, plaintiff challenges the ALJ’s treatment of the opinion offered by Dr. Navin 2 Mallavaram, a treating physician and board-certified pain management specialist.5 (Pl.’s MSJ 3 (ECF No. 12) at 12-16.) On August 23, 2016, Dr. Mallavaram completed a Chronic Pain 4 Residual Functional Capacity Questionnaire form, opining that plaintiff was limited in various 5 respects. (Tr. at 593-96.) 6 The ALJ discussed Dr. Mallavaram’s opinion as follows: 7 The undersigned accords limited partial weight to the opinions of the claimant’s treating pain management specialist, Dr. Navin 8 Mallavaram, to the extent consistent with the residual functional capacity above. For example, the opinions that the claimant has no 9 significant limitations with reaching, handling, or fingering and can occasionally climb ramps and stairs but never climb ladders, ropes, 10 or scaffolds are supported by the record. However, the opinion that the claimant is “unable for physical work” is a determination 11 reserved for the Commissioner. Further the doctor’s other opinions that the claimant is limited to sitting, standing, and walking two hours 12 in an eight-hour day and that the claimant required a cane in June 2015 are not supported by the record including imaging studies as 13 detailed above. 14 (Id. at 26) (citations omitted). 15 That is the extent of the ALJ’s vague and conclusory discussion of the treating opinion 16 offered by Dr. Mallavaram. Although the ALJ purported to afford Dr. Mallaram’s opinion 17 “partial weight,” and found that some aspects of the opinion were “supported by the record,” 18 several aspects of Dr. Mallavaram’s opinion were not addressed by the ALJ or accounted for by 19 the ALJ’s residual functional capacity determination. For example, Dr. Mallavaram opined that 20 plaintiff’s symptoms were frequently severe enough to interfere with attention and concentration 21 necessary for simple tasks. (Id. 594.) That plaintiff required a job that permitted shifting at will. 22 (Id. at 595.) That plaintiff would be absent from work more than four days per month as a result 23 of plaintiff’s impairments. (Id. at 596.) 24 //// 25 26 5 The opinions of a medical specialist regarding the specialist’s area of expertise “are given more weight than the opinions of a nonspecialist.” Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 27 1996); see also Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (“Each rheumatologist’s opinion is given greater weight than those of the other physicians because it is an opinion of a 28 1 A claimant’s residual function capacity (“RFC”) is “the most [the claimant] can still do 2 despite [his or her] limitations.” 20 C.F.R. § 404.1545(a); 20 C.F.R. § 416.945(1); see also 3 Cooper v. Sullivan, 880 F.2d 1152, n.5 (9th Cir. 1989) (“A claimant’s residual functional capacity 4 is what he can still do despite his physical, mental, nonexertional, and other limitations.”). In 5 conducting an RFC assessment, the ALJ must consider the combined effects of an applicant’s 6 medically determinable impairments on the applicant’s ability to perform sustainable work. 42 7 U.S.C. § 423(d)(2)(B); Macri v. Chater, 93 F.3d 540, 545 (9th Cir. 1996). The ALJ must 8 consider all of the relevant medical opinions as well as the combined effects of all of the 9 plaintiff’s impairments, even those that are not “severe.” 20 C.F.R. §§ 404.1545(a); 416.945(a); 10 Celaya v. Halter, 332 F.3d 1177, 1182 (9th Cir. 2003). “[A]n RFC that fails to take into account a 11 claimant’s limitations is defective.” Valentine v. Commissioner Social Sec. Admin., 574 F.3d 12 685, 690 (9th Cir. 2009). The ALJ must determine a claimant’s limitations on the basis of “all 13 relevant evidence in the record.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 14 2006). 15 Moreover, to the extent the ALJ rejected Dr. Mallavaram’s opinion that plaintiff was 16 “unable for physical work,” because that “is a determination reserved for the Commissioner,” the 17 ALJ erred. (Tr. at 26.) “‘In disability benefits cases . . . physicians may render medical, clinical 18 opinions, or they may render opinions on the ultimate issue of disability—the claimant’s ability to 19 perform work.’” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting Reddick v. 20 Chater, 157 F.3d 715, 725 (9th Cir. 1998)). Therefore, “an ALJ may not simply reject a treating 21 physician’s opinions on the ultimate issue of disability.” Ghanim v. Colvin, 763 F.3d 1154, 1161 22 (9th Cir. 2014). 23 Nor could the ALJ rely on the vague assertion that Dr. Mallavarm’s “other opinions” were 24 “not supported by the evidence of record including imaging studies[.]” (Tr. at 26.) 25 To say that medical opinions are not supported by sufficient objective findings or are contrary to the preponderant conclusions 26 mandated by the objective findings does not achieve the level of specificity our prior cases have required, even when the objective 27 factors are listed seriatim. The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain 28 why they, rather than the doctors’, are correct. 1 Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988); see also Tackett v. Apfel, 180 F.3d 2 1094, 1102 (9th Cir. 1999) (“The ALJ must set out in the record his reasoning and the evidentiary 3 support for his interpretation of the medical evidence.”); McAllister v. Sullivan, 888 F.2d 599, 4 602 (9th Cir. 1989) (“Broad and vague” reasons for rejecting the treating physician’s opinion do 5 not suffice). 6 Accordingly, the court finds that the ALJ failed to offer a specific and legitimate, let alone 7 clear and convincing, reason for rejecting Dr. Mallavaram’s opinion. Plaintiff, therefore, is 8 entitled to summary judgment on the claim that the ALJ’s treatment of the medical opinion 9 evidence constituted error. 10 II. Lay Witness Testimony 11 Plaintiff argues that the ALJ’s treatment of plaintiff’s testimony and the third-party 12 testimony constituted error. (Pl.’s MSJ (ECF No. 12) at 8-11, 16-19.) 13 A. Plaintiff’s Testimony 14 The Ninth Circuit has summarized the ALJ’s task with respect to assessing a claimant’s 15 credibility as follows: 16 To determine whether a claimant’s testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step 17 analysis. First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment 18 which could reasonably be expected to produce the pain or other symptoms alleged. The claimant, however, need not show that her 19 impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could 20 reasonably have caused some degree of the symptom. Thus, the ALJ may not reject subjective symptom testimony . . . simply because 21 there is no showing that the impairment can reasonably produce the degree of symptom alleged. 22 Second, if the claimant meets this first test, and there is no evidence 23 of malingering, the ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering specific, clear and 24 convincing reasons for doing so[.] 25 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (citations and quotation marks 26 omitted). “The clear and convincing standard is the most demanding required in Social Security 27 cases.” Moore v. Commissioner of Social Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002). “At 28 the same time, the ALJ is not required to believe every allegation of disabling pain, or else 1 disability benefits would be available for the asking[.]” Molina v. Astrue, 674 F.3d 1104, 1112 2 (9th Cir. 2012). 3 “The ALJ must specifically identify what testimony is credible and what testimony 4 undermines the claimant’s complaints.”6 Valentine v. Commissioner Social Sec. Admin., 574 5 F.3d 685, 693 (9th Cir. 2009) (quoting Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 6 599 (9th Cir. 1999)). In weighing a claimant’s credibility, an ALJ may consider, among other 7 things, the “[claimant’s] reputation for truthfulness, inconsistencies either in [claimant’s] 8 testimony or between [her] testimony and [her] conduct, [claimant’s] daily activities, [her] work 9 record, and testimony from physicians and third parties concerning the nature, severity, and effect 10 of the symptoms of which [claimant] complains.” Thomas v. Barnhart, 278 F.3d 947, 958-59 11 (9th Cir. 2002) (modification in original) (quoting Light v. Soc. Sec. Admin., 119 F.3d 789, 792 12 (9th Cir. 1997)). If the ALJ’s credibility finding is supported by substantial evidence in the 13 record, the court “may not engage in second-guessing.” Id. 14 Here, the ALJ recounted plaintiff’s testimony, in relevant part, as follows: 15 The claimant described his symptoms in written submissions in connection with this determination to medical professionals and at 16 the hearing. He alleged an onset date corresponding to the day after the last unfavorable determination, December 2, 2015. Prior to the 17 hearing he alleged that he was unable to work due to chronic severe back pain, leg cramps/radiculopathy, major depressive disorder, 18 migraine headaches, and sleep disorder. At this hearing, he described his impairments as causing low back pain and leg cramps. He 19 reported being able to sit and stand 30 minutes at a time, walk only 10 minutes at a time and lift up to 10 pounds. He stated that he is 20 “constantly tired,” wakes up 2-3 times a night due to leg cramps, and has problems concentrating. 21 *** 22 Turning back to his more recent hearing testimony, he reported 23 having a one-time injection trial which did not help, so the procedure 24 6 In March 2016, Social Security Ruling (“SSR”) 16-3p went into effect. “This ruling makes 25 clear what our precedent already required: that assessments of an individual’s testimony by an ALJ are designed to ‘evaluate the intensity and persistence of symptoms after the ALJ finds that 26 the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms,’ and not to delve into wide-ranging scrutiny of the claimant’s character 27 and apparent truthfulness.” Trevizo v. Berryhill, 871 F.3d 664, 679 (9th Cir. 2017) (quoting SSR 16-3p) (alterations omitted). The ALJ’s decision here, however, was issued on November 25, 28 1 was not repeated. He conveyed that it was ultimately determined that only pain medications worked well enough to continue. He stated 2 having last had physical therapy in 2014, but had just returned to physical therapy and was using a TENS unit. He reported that the 3 VA prescribed use of a cane four months ago, but prior to that, it was not prescribed. He reported that he uses cane in his home to climb 4 stairs, and that in a typical day he performs no household chores lies on couch, sits on the couch, reads, watches television, and does “not 5 a lot” in a typical day. He states that he does nothing for exercise, sports, or leisure, but also stated that he uses the internet to reads (sic) 6 about current events daily. 7 He testified that the “highlight of his day” is checking the mail. 8 *** 9 Turning to the claimant’s alleged mental impairments, he reported attending mental health counseling through the VA monthly and 10 attending group sessions occasionally for PTSD that is triggered by “certain noises.” He conveyed that he had been taking psychiatric 11 medications for approximately two years, but that they do not help. He reported that PTSD affects him “constantly,” that he cannot be 12 around other people, and that it is hard to explain. 13 (Tr. at 21-22.) 14 The ALJ then simply concluded that the “evidence of record” did “not support the 15 claimant’s assertions of pain and dysfunction.”7 (Id. at 22.) After discussing various items of 16 evidence, the ALJ found that “while the medical evidence supports a finding that the claimant has 17 ‘severe’ impairments, the objective findings on imaging studies and the course of medical 18 treatment do not support the claimant’s allegations of an inability to perform all work.” (Id. at 19 24) (emphasis in original). 20 However, “after a claimant produces objective medical evidence of an underlying 21 impairment, an ALJ may not reject a claimant’s subjective complaints based solely on a lack of 22 medical evidence to fully corroborate the alleged severity” of the symptoms. Burch v. Barnhart, 23 400 F.3d 676, 680 (9th Cir. 2005); see also Putz v. Astrue, 371 Fed. Appx. 801, 802-03 (9th Cir. 24 2010) (“Putz need not present objective medical evidence to demonstrate the severity of her 25 fatigue.”); Bunnell v. Sullivan, 947 F.2d 341, 347 (9th Cir. 1991) (“If an adjudicator could reject 26 27 7 Strangely, the ALJ also appears to have rejected plaintiff’s testimony based on a finding that plaintiff “has been able to father a child[.]” (Tr. at 22.) It is entirely unclear how the ability to 28 1 a claim for disability simply because a claimant fails to produce medical evidence supporting the 2 severity of the pain, there would be no reason for an adjudicator to consider anything other than 3 medical findings.”). 4 The ALJ then concluded the analysis of plaintiff’s testimony with the boilerplate 5 statement that plaintiff’s medically determinable impairments could reasonably be expected to 6 cause the symptoms alleged, but that plaintiff’s statements concerning the intensity, persistence, 7 and limiting effects of those symptoms were “not entirely consistent with the medical evidence 8 and other evidence in the record for the reason explained in [the] decision.” (Id. at 25.) 9 “ALJs routinely include this statement in their written findings as an introduction to the 10 ALJ’s credibility determination” before “identify[ing] what parts of the claimant’s testimony 11 were not credible and why.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th 12 Cir. 2014). “The use of this generic language is not itself reversible error . . . but it inverts the 13 responsibility of an ALJ, which is first to determine the medical impairments of a claimant based 14 on the record and the claimant’s credible symptom testimony and only then to determine the 15 claimant’s RFC. By rejecting a claimant’s subjective symptoms ‘to the extent they are 16 inconsistent with the above residual functional capacity assessment,’ the agency indicates that it 17 is failing properly to incorporate a claimant’s testimony regarding subjective symptoms and pain 18 into the RFC finding, as it is required to do.” Trevizo, 871 F.3d at 679 n.6. 19 For the reasons stated above, the court finds that the ALJ failed to offer a clear and 20 convincing reason for rejecting plaintiff’s testimony. 21 B. Third Party Testimony 22 After rejecting plaintiff’s testimony, the ALJ addressed testimony offered by third parties. 23 The ALJ did not specifically identify the identity or specific testimony of any third party. 24 Instead, the ALJ said simply, “Although the undersigned did carefully consider the third-party 25 witness statements, because they are the statements of the claimant’s family members and based 26 upon the claimant’s subjective complaints, the undersigned considers them in that light and 27 accords them less probative weight.” (Tr. at 26.) 28 //// 1 However, the testimony of lay witnesses, including family members and friends, 2 reflecting their own observations of how the claimant’s impairments affect her activities must be 3 considered and discussed by the ALJ. Robbins, 466 F.3d at 885; Smolen, 80 F.3d at 1288; 4 Sprague, 812 F.2d at 1232. Persons who see the claimant on a daily basis are competent to testify 5 as to their observations. Regennitter, 166 F.3d at 1298; Dodrill v. Shalala, 12 F.3d 915, 918-19 6 (9th Cir. 1993). If the ALJ chooses to reject or discount the testimony of a lay witness, he or she 7 must give reasons germane to each particular witness in doing so. Regennitter, 166 F.3d at 1298; 8 Dodrill, 12 F.3d at 919. 9 In this regard, the mere fact that a lay witness is a relative of the claimant cannot be a 10 ground for rejecting the witness’s testimony. Regennitter,166 F.3d at 1298; see also Smolen, 80 11 F.3d at 1289 (“the same could be said of any family member who testified in any case”). 12 “Clearly, family members who see the claimant on a daily basis are competent to testify as to 13 their observations.” O’Bosky v. Astrue, 651 F.Supp.2d 1147, 1163 (E.D. Cal. 2009). 14 For the reasons stated above, the court finds that the ALJ failed to offer any germane 15 reason for rejecting the lay witness testimony. Accordingly, the court finds that plaintiff is also 16 entitled to summarize judgment on the claim that the ALJ’s treatment of the subjective testimony 17 constituted error. 18 CONCLUSION 19 After having found error, “‘[t]he decision whether to remand a case for additional 20 evidence, or simply to award benefits[,] is within the discretion of the court.’” Trevizo, 871 F.3d 21 at 682 (quoting Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)). A case may be 22 remanded under the “credit-as-true” rule for an award of benefits where: 23 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 24 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly 25 discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. 26 27 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). 28 //// 1 Even where all the conditions for the “credit-as-true” rule are met, the court retains 2 “flexibility to remand for further proceedings when the record as a whole creates serious doubt as 3 to whether the claimant is, in fact, disabled within the meaning of the Social Security Act.” Id. at 4 1021; see also Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (“Unless the district court 5 concludes that further administrative proceedings would serve no useful purpose, it may not 6 remand with a direction to provide benefits.”); Treichler v. Commissioner of Social Sec. Admin., 7 775 F.3d 1090, 1105 (9th Cir. 2014) (“Where . . . an ALJ makes a legal error, but the record is 8 uncertain and ambiguous, the proper approach is to remand the case to the agency.”). 9 Here, the court finds that the record has been fully developed and further administrative 10 proceedings would serve no useful purpose. The ALJ failed to provide legally sufficient reasons 11 for rejecting the opinion of a treating physician, plaintiff’s testimony, and the testimony of 12 multiple third-party witnesses. If that evidence were credited as true, the ALJ would be required 13 to find plaintiff disabled on remand. In this regard, at the November 30, 2017 hearing, a 14 Vocational Expert testified that a person with the limitations opined by Dr. Mallavarm would be 15 unable to obtain a job. (Tr. at 108-09.) And the record as a whole does not create serious doubt 16 as to whether plaintiff is, in fact, disabled within the meaning of the Social Security Act.8 17 Accordingly, IT IS HEREBY ORDERED that: 18 1. Plaintiff’s motion for summary judgment (ECF No. 12) is granted; 19 2. Defendant’s cross-motion for summary judgment (ECF No. 15) is denied; 20 3. The Commissioner’s decision is reversed; 21 4. This matter is remanded for the payment of benefits; and 22 //// 23 //// 24 //// 25 //// 26 8 In addition to the improperly rejected evidence, the record includes a finding from the 27 Department of Veterans Affairs that plaintiff had a “90% final degree of disability.” (Tr. at 440.) “[A]n ALJ must ordinarily give great weight to a VA determination of disability.” McCartey v. 28 WAS 2. SY POMP MVVUPTPOTI ti FIR PAY AT tt 2 5. The Clerk of the Court shall enter judgment for plaintiff and close this case. 3 | Dated: September 16, 2020 4 5 6 DBlonlers\orders.soc sec\westfall0957.ord SEAT anes UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14