Kenneth Chhim v. Jo Anne B Barnhart

Case 2:04-cv-07872-PLA Document 19 Filed 01/09/06 Page 1 of 13 Page ID #:46 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CAL...

0 Downloads 12 Views
Case 2:04-cv-07872-PLA Document 19 Filed 01/09/06 Page 1 of 13 Page ID #:46

1 2 3 4 5 6 7 8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10

WESTERN DIVISION

11 12

KENNETH CHHIM,

13

Plaintiff,

14 15

) ) ) ) ) ) ) ) ) ) ) )

v.

16

JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,

17

Defendant.

18

No. CV 04-7872-PLA MEMORANDUM OPINION AND ORDER

19

I.

20

PROCEEDINGS

21

Plaintiff filed this action on September 27, 2004, seeking review of the Commissioner’s

22

termination of his Supplemental Security Income payments. The parties filed a Consent to

23

proceed before the undersigned Magistrate Judge on November 4, 2004. Pursuant to the Court’s

24

Order, the parties filed an Amended Final Joint Stipulation on July 14, 2005, that addresses their

25

positions concerning the disputed issues in the case. The Court has taken the Joint Stipulation

26

under submission without oral argument.

27

/

28

/

Case 2:04-cv-07872-PLA Document 19 Filed 01/09/06 Page 2 of 13 Page ID #:47

1

II.

2

BACKGROUND

3

In a decision dated November 23, 1994, plaintiff was found to be under a “disability” as

4

defined in the Social Security Act commencing November 12, 1992, on the basis of a severe

5

dysthymic disorder. [AR at 113-16.] On July 7, 1999, plaintiff was advised that his disability was

6

found to have ceased as of July, 1999, and that benefits would be terminated. [AR at 124-27.]

7

Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), and a hearing was held

8

on September 11, 2002. [AR at 339-73.]

9 10

After taking testimony and reviewing the record, the ALJ issued a decision dated November 15, 2002, finding that plaintiff’s disability ceased effective July 1, 1999. [AR at 16-22.]

11

Plaintiff timely filed a request with the Appeals Council for review of the ALJ’s decision. [AR

12

at 11.] On July 28, 2004, the Appeals Council advised that the ALJ’s decision would stand as the

13

final decision of the Commissioner in plaintiff’s case. [AR at 4-7.] Plaintiff then filed his Complaint

14

herein on September 27, 2004.

15 16

III.

17

STANDARD OF REVIEW

18

Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner’s

19

decision to deny benefits. The decision will be disturbed only if it is not supported by substantial

20

evidence or if it is based upon the application of improper legal standards. Moncada v. Chater,

21

60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

22

In this context, the term “substantial evidence” means “more than a mere scintilla but less

23

than a preponderance -- it is such relevant evidence that a reasonable mind might accept as

24

adequate to support the conclusion.” Moncada, 60 F.3d at 523; see also Drouin, 966 F.2d at

25

1257. When determining whether substantial evidence exists to support the Commissioner’s

26

decision, the Court examines the administrative record as a whole, considering adverse as well

27

as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th

28

Cir. 1989). Where the evidence is susceptible to more than one rational interpretation, the Court 2

Case 2:04-cv-07872-PLA Document 19 Filed 01/09/06 Page 3 of 13 Page ID #:48

1

must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Andrews v. Shalala,

2

53 F.3d 1035, 1040 (9th Cir. 1995); Drouin, 966 F.2d at 1258.

3 4

IV.

5

EVALUATION OF DISABILITY

6

Persons are “disabled” for purposes of receiving disability insurance benefits if they are

7

unable to engage in any substantial gainful activity owing to a physical or mental impairment which

8

is expected to result in death or which has lasted or is expected to last for a continuous period of

9

at least twelve months. 42 U.S.C. § 423(d)(1)(A); Drouin, 966 F.2d at 1257.

10

A.

STEPS IN EVALUATING WHETHER DISABILITY CONTINUES

11

20 C.F.R. §§ 404.1594(f) and 416.994(b)(5) outline the steps in evaluating whether

12

disability continues for a person who has previously been determined to be disabled. First, in

13

disability insurance benefits cases, the Commissioner determines whether the individual is

14

engaging in substantial gainful activity. If so, and the applicable trial work period has been

15

completed, the Commissioner determines that disability has ended.

16

Second, if not so engaged, the Commissioner determines whether the individual has an

17

impairment or combination of impairments that meets or equals the severity of an impairment

18

listed in Appendix 1 of Subpart P, Part 404. If so, the Commissioner determines that disability

19

continues.

20

Third, if the impairment or combination of impairments does not meet or equal the severity

21

of a listed impairment, the Commissioner determines whether there has been medical

22

improvement “as shown by a decrease in medical severity. . . . If there has been no decrease in

23

medical severity, there has been no medical improvement.”

24

Fourth, if there has been medical improvement, the Commissioner determines whether this

25

improvement is related to the individual’s ability to do work -- “i.e., whether or not there has been

26

an increase in the residual functional capacity based on the impairment(s) that was present at the

27

time of the most recent favorable medical determination.”

28 3

Case 2:04-cv-07872-PLA Document 19 Filed 01/09/06 Page 4 of 13 Page ID #:49

1

Fifth, if there has been no medical improvement or if the medical improvement was not

2

related to an individual’s ability to work, the Commissioner determines that disability continues

3

absent evidence that certain exceptions apply. These exceptions fall into two categories. The first

4

category concerns benefits to the individual from advances in medical technology in treating or

5

diagnosing an impairment, the individual’s participation in vocational therapy, an error in the prior

6

determination, or, in the case of disability insurance benefits, the individual’s engaging in

7

substantial gainful activity. 20 C.F.R. §§ 404.1594(d), 416.994(b)(3). The second group of

8

exceptions concerns situations where the prior determination was fraudulently obtained, where

9

the individual fails to cooperate with the Commissioner, where the individual cannot be located,

10

and where the individual fails to follow prescribed treatment. 20 C.F.R. §§ 404.1594(e),

11

416.994(b)(4). If the second group of exceptions applies, disability ends.

12

Sixth, if medical improvement is related to the individual’s ability to do work or if one of the

13

first group of exceptions applies, the Commissioner determines whether the individual’s current

14

impairments in combination are “severe” as defined in 20 C.F.R. § 404.1521 and 20 C.F.R. §

15

416.921. If the residual functional capacity assessment in step four shows significant limitation in

16

the individual’s ability to do basic work activities, then the evaluation continues. When the

17

evidence shows that the current impairments in combination do not significantly limit an

18

individual’s physical or mental abilities to do basic work activities, disability ends. Seventh, if the

19

impairment is “severe,” the Commissioner determines the individual’s residual functional capacity

20

and whether the individual is able to perform work he had done in the past. If the individual can

21

perform work done in the past, disability ends.

22

Eighth, if the individual is not able to do work he had done in the past, the Commissioner

23

determines whether the individual can do other work considering the individual’s residual

24

functional capacity, age, education and past work experience. If the individual can do other work,

25

disability will be found to have ended; if not, disability will be found to continue.

26

B.

THE ALJ’S APPLICATION OF THE EIGHT-STEP PROCESS

27

At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since

28

the original determination of disability. [AR at 18.] The ALJ also found that plaintiff no longer has 4

Case 2:04-cv-07872-PLA Document 19 Filed 01/09/06 Page 5 of 13 Page ID #:50

1

an impairment or combination of impairments that meets or equals the severity of any impairment

2

listed in Appendix 1, Subpart P, Regulations No. 4. (Step two.) [AR at 21.] The ALJ next found

3

that on November 23, 1994, the date of the most recent favorable decision, plaintiff was disabled

4

with a dysthymic disorder. However, the ALJ concluded that there has been medical improvement

5

since July 1, 1999, and that this improvement is related to plaintiff’s ability to work. (Steps three

6

and four.) [AR at 21.] Accordingly, no decision of disability could be made at step five. At step

7

six, the ALJ determined that plaintiff’s present impairments are not severe, and that plaintiff’s

8

allegations of disabling pain and mental limitations are not credible. [AR at 22.] Accordingly, the

9

ALJ found that plaintiff was no longer disabled and that his disability ceased as of July 1, 1999.

10

[AR at 22.]

11 12

V.

13

THE ALJ’S DECISION

14

Plaintiff contends that the ALJ did not properly evaluate the medical and non-medical

15

evidence in concluding that plaintiff’s disability ceased on July 1, 1999.1 For the reasons

16

discussed below, the Court respectfully disagrees with plaintiff, and affirms the Commissioner’s

17

decision.

18

A.

THE MEDICAL EVIDENCE

19

In November, 1994, when it was determined that plaintiff had been disabled as of

20

November 12, 1992, ALJ Erwin Stuller concluded that plaintiff suffered from a severe dysthymic

21

disorder, and was “unable to understand, remember, or carry out simple instructions, respond

22

appropriately to supervision, coworkers, and customary work pressures, deal with changes in a

23

routine work setting, and use his judgment properly.” [AR at 114-15.] Plaintiff was precluded from

24

doing his past work, and there were no other jobs that he was capable of performing that existed

25

in significant numbers in the national economy. [AR at 115.] In reaching this conclusion, the ALJ

26 27 28

1

In the Joint Stipulation, plaintiff does not contend that the ALJ did not properly evaluate the evidence relating to plaintiff’s physical impairments. Accordingly, the Court will not address that evidence herein. 5

Case 2:04-cv-07872-PLA Document 19 Filed 01/09/06 Page 6 of 13 Page ID #:51

1

relied in part on the evaluation of Dr. Michael Tjoa, a psychiatrist, who noted in March, 1993, that

2

plaintiff complained of, among other things, depression, poor appetite, irritability, difficulty sleeping,

3

and impaired memory and concentration. [AR at 74, 114.]

4

Starting in November, 1996, plaintiff was treated approximately every month by Dr.

5

Elizabeth Rowell, a psychiatrist. Notes of plaintiff’s visits with her extend into 2002. [AR at 321-

6

33.] Although plaintiff regularly complained that he did not sleep well, at times he indicated that

7

he was sleeping “ok” or a “little better,” and he was consistently alert and oriented. At times he

8

complained he had no energy. [AR at 321-33.] Dr. Rowell prescribed medications for plaintiff, and

9

some of his visits appeared to be specifically for medication refills, which he described as being

10

“good” for him. [AR at 327.]2

11

In February, 1999, a psychiatric evaluation of plaintiff was conducted by Dr. Khang Nguyen.

12

Dr. Nguyen concluded that plaintiff’s “cooperation and reliability are questionable.” Plaintiff

13

complained that he was once hit on the head by the communists in Cambodia and has had

14

headaches ever since. He also complained of poor sleep at night and that he wakes up quite

15

often. He did not report any symptoms of post-traumatic stress disorder or complain of major

16

depressive symptoms. [AR at 189.] Plaintiff did not have a past psychiatric history or history of

17

any psychiatric hospitalizations. He was alert and animated, his affect was not flat, blunted or

18

constricted, and his psychomotor activity was within normal limits. He had no looseness of

19

association, had intact reality testing and was oriented. Based on his examination of plaintiff, Dr.

20

Nguyen found no evidence of a psychiatric diagnosis. He concluded that plaintiff was “able to

21

focus and maintain attention. He also can understand, remember and follow instructions.” Dr.

22

Nguyen opined that plaintiff’s poor performance on the intellectual function examination suggested

23

poor cooperation with the assessment. [AR at 189-92.]

24 25 26 27 28

2

Plaintiff complains that the disability hearing officer did not consider Dr. Rowell’s records when he determined that plaintiff was no longer disabled. [AR at 135-42.] While this appears to be true, this Court’s review is limited to the final decision of the Commissioner (see 42 U.S.C. §§ 405(g), 1383(c)(3)); the ALJ reviewed and considered Dr. Rowell’s records. [AR at 18-19.] 6

Case 2:04-cv-07872-PLA Document 19 Filed 01/09/06 Page 7 of 13 Page ID #:52

1

In March, 1999, Dr. Michael Skopec, a board certified psychiatrist, completed a psychiatric

2

review technique form in which he found that plaintiff had no medically determinable impairment.

3

[AR at 193.]

4

At the hearing on September 11, 2002, plaintiff testified through an interpreter that he was

5

59 years old, came to the United States from Cambodia in 1981, but does not speak and

6

understand much English. [AR 351-52.] Plaintiff testified that he cannot work because his brain

7

“hurts all the time.” He also experiences chest pain and “heart throbs.” [AR at 355.] Plaintiff

8

suffers from dizziness and headaches, but he does not remember if he has diabetes. His back

9

also hurts and he is depressed. [AR at 356.] The pain occurs “very often.” [AR at 357.] He has

10

been seeing a doctor for depression. [AR at 357.] The medication he takes for depressions helps.

11

[AR at 360.] He cannot hold things without them falling and he cannot lift with his right arm above

12

the horizontal level. [AR at 358-59.] The most he can lift is 10 pounds. He cannot wash his face

13

with his right hand. [AR at 359.] His condition has not gotten better since he originally started

14

receiving Supplemental Security Income. [AR at 360-61.]

15

In determining whether plaintiff continues to be disabled, the ALJ concluded that plaintiff

16

“has not received any significant psychiatric treatment since his original allowance,” and that there

17

has been “significant improvement in his condition” since the time benefits were allowed based

18

on his dysthymic disorder. [AR at 21.] Plaintiff argues that a comparison between plaintiff’s

19

symptoms and condition at the time he was first found disabled in 1992, and his condition as found

20

by Dr. Elizabeth Rowell and physicians at the 3-M Family Mental Health Center in 1999,3 shows

21

that his condition has not medically improved to permit him to perform work. Joint Stipulation at

22

4. He further argues that since the consultative examiners relied on by the current ALJ did not

23

have plaintiff’s prior records that formed the basis for the initial disability finding, an appropriate

24

comparison cannot be done to determine if any improvement has occurred. Joint Stipulation at

25 26 27 28

3

From March 29, 2001, through August 19, 2002, plaintiff had regular appointments at the 3-M Family Health Medical Center at which he complained of headaches, dizziness, leg pain, waist pain, neck pain and fatigue. He apparently received various medications. [AR at 285-299.] Records from that facility prior to May 24, 1999 [AR at 250-84] do not support plaintiff’s contention that he remained disabled after July 1, 1999. 7

Case 2:04-cv-07872-PLA Document 19 Filed 01/09/06 Page 8 of 13 Page ID #:53

1

5. Plaintiff is correct that it is necessary to compare the “current medical severity” of the

2

impairment with the medical severity at the time plaintiff was found to be disabled (the point of

3

comparison). 20 C.F.R. § 416.994(b)(1)(vii). Here, the ALJ reviewed the various medical opinions

4

and determined that improvement had taken place, and that plaintiff has not had a severe

5

impairment since July 1, 1999. [AR at 21.] As set forth below, to the extent this conclusion was a

6

rejection of plaintiff’s treating psychiatrist, Dr. Rowell, the ALJ amply supported that rejection.

7

Ninth Circuit cases distinguish among the opinions of three types of physicians: (1) those

8

who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant

9

(examining physicians); and (3) those who neither examine nor treat the claimant (non-examining

10

physicians). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The opinion of a treating

11

physician is given deference because “he is employed to cure and has a greater opportunity to

12

know and observe the patient as an individual.” Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir.

13

1987) (citations omitted). “The opinion of the treating physician, however, is not necessarily

14

conclusive as to either the physical condition or the ultimate issue of disability.” Magallanes v.

15

Bowen, 881 F.2d 747, 751 (9th Cir. 1989); Rodriguez v. Bowen, 876 F.2d 759, 761-62 & n.7 (9th

16

Cir. 1989).

17

“‘The administrative law judge is not bound by the uncontroverted opinions of the claimant’s

18

physicians on the ultimate issue of disability, but he cannot reject them without presenting clear

19

and convincing reasons for doing so.’” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)

20

(quoting Matthews v. Shalala, 10 F.3d at 678, 680 (9th Cir. 1993) (quoting Montijo v. Secretary

21

of Health & Human Servs., 729 F.2d 599, 601 (9th Cir. 1984)); see also Lester, 81 F.3d at 830.

22

Even if a treating physician’s opinion on disability is controverted, it can be rejected only with

23

specific and legitimate reasons supported by substantial evidence in the record. Lester, 81 F.3d

24

at 830. The opinion of an examining physician is, in turn, entitled to greater weight than the

25

opinion of a non-examining physician. Lester, 81 F.3d at 830. As is the case with the opinion of

26

a treating physician, the ALJ must provide “clear and convincing” reasons for rejecting the

27

uncontradicted opinion of an examining physician, and specific and legitimate reasons supported

28 8

Case 2:04-cv-07872-PLA Document 19 Filed 01/09/06 Page 9 of 13 Page ID #:54

1

by substantial evidence in the record to reject the contradicted opinion of an examining physician.

2

Id. at 830-31.

3

“The opinion of a non-examining physician cannot by itself constitute substantial evidence

4

that justifies the rejection of the opinion of either an examining physician or a treating physician.”

5

Lester, 81 F.3d at 831. Opinions of a non-examining, testifying medical advisor may serve as

6

substantial evidence only when they are supported by other evidence in the record and are

7

consistent with it. Andrews, 53 F.3d at 1041. “The ALJ can meet this burden by setting out a

8

detailed and thorough summary of the facts and conflicting clinical evidence, stating his

9

interpretation thereof, and making findings.” Magallanes, 881 F.2d at 750 (quoting Cotton v.

10

Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)). “‘A report of a non-examining, non-treating

11

physician should be discounted and is not substantial evidence when contradicted by all other

12

evidence in the record.’” Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984), quoting Millner

13

v. Schweiker, 725 F.2d 243, 245 (4th Cir. 1984).

14

Here, the ALJ properly relied on the opinions of Dr. Nguyen and the state agency physician

15

to determine that plaintiff has shown medical improvement, and there is substantial evidence

16

supporting the ALJ’s decision. Dr. Nguyen clearly concluded, following an evaluation, that plaintiff

17

had no mental disability. As plaintiff once was diagnosed with dysthymic disorder, and now has

18

no mental disability, improvement is apparent. It was not necessary for the consultative examiner

19

to review plaintiff’s past records for a conclusion concerning improvement to be reached, as it is

20

not his task to evaluate improvement. Rather, the determination of improvement is reserved for

21

the Commissioner. 20 C.F.R. § 416.927(e) (“[w]e are responsible for making the determination

22

or decision about whether you meet the statutory definition of disability . . . A statement by a

23

medical source that you are ‘disabled’ or ‘unable to work’ does not mean that we will determine

24

that you are disabled . . . Although we consider opinions from medical sources on issues such as

25

your residual functional capacity . . ., the final responsibility for deciding these issues is reserved

26

to the Commissioner”). The ALJ further concluded that “[t]here is nothing to show that [plaintiff]

27

has any functional limitations with his psychotropic medications.” [AR at 19.] Dr. Rowell’s records

28 9

Case 2:04-cv-07872-PLA Document 19 Filed 01/09/06 Page 10 of 13 Page ID #:55

1

do not establish any functional limitations, and plaintiff points to nothing in those records showing

2

otherwise.

3

As noted above, Dr. Rowell refilled plaintiff’s medications, and plaintiff notes that his

4

medications are “good” for him. The ALJ rejected Dr. Rowell’s records, finding them “particularly

5

unimpressive,” and noting that there was “no initial evaluation, no diagnosis stated, no evidence

6

of psychological testing and no evaluation of the severity of [plaintiff’s] condition.” [AR at 18.] As

7

the ALJ need not accept a treating physician’s opinion which is “brief and conclusionary in form

8

with little in the way of clinical findings to support [its] conclusions,” plaintiff has not shown that

9

the ALJ erred in rejecting Dr. Rowell’s assessment to the extent that it concerns plaintiff being

10

permanently disabled. Magallanes, 881 F.2d at 751 (quoting Young v. Heckler, 803 F.2d 963, 968

11

(9th Cir.1986)); Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995) (the ALJ need not accept

12

a treating physician’s opinion which is “conclusory and unsubstantiated by relevant medical

13

documentation”); Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (ALJ may reject the

14

conclusory opinion of an examining or treating physician if the opinion is unsupported by clinical

15

findings). The ALJ provided specific and legitimate grounds to reject this evidence.

16

Plaintiff also argues that the ALJ “could have requested a functional assessment from Dr.

17

Rowell.” Joint Stipulation at 11. While the ALJ has a duty to fully develop the record, there were

18

no ambiguities here to resolve. See, e.g., DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991)

19

(ALJ has duty to develop the record further when there is ambiguous evidence or when the record

20

is inadequate to allow for proper evaluation of the evidence); 20 C.F.R. § 416.919a(b)(4) (where

21

the medical evidence contains “[a] conflict, inconsistency, ambiguity, or insufficiency,” the ALJ

22

should either order a consultative examination or attempt to resolve the inconsistency by

23

recontacting the treating physician). Neither does plaintiff having the same self-reported symptoms

24

now as he did in 1992 establish disability, especially where the ALJ questioned plaintiff’s credibility

25

[AR at 20-22], a finding that plaintiff does not contest in the Joint Stipulation.

26

on the opinion of an examining physician even over the contradictory opinion of a treating

27

physician when it is based on independent clinical findings, as Dr. Nguyen’s opinion was here. Dr.

28

Nguyen’s report supports the ALJ’s decision that plaintiff’s condition has improved to the point 10

The ALJ can rely

Case 2:04-cv-07872-PLA Document 19 Filed 01/09/06 Page 11 of 13 Page ID #:56

1

where he has no severe impairment. This is a change in the “signs” associated with the

2

impairment on which the ALJ can rely. 20 C.F.R. § 416.994(b)(1)(i). Remand is not warranted.

3 4

B.

LAY WITNESS TESTIMONY

5

Plaintiff also asserts that the ALJ did not properly consider the lay evidence provided by

6

plaintiff’s daughter, Samcheth Chhim. She testified that for the last two years she has seen her

7

father about once a week. She indicates that plaintiff does not cooperate with his family, does not

8

finish jobs he is given around the house, and does not do much except sit and talk to himself and

9

get depressed. Plaintiff gets angry with everybody. [AR at 362-63.] He cannot handle noise.

10

Plaintiff has no activities outside the house. [AR at 364.] He has been more depressed during the

11

last two years and has gotten worse. [AR at 366.] He does not understand how to make change.

12

[AR at 365.]

13

Lay witness testimony is “qualified evidence” that the ALJ must consider. See Sprague v.

14

Bowen, 812 F.2d 1226, 1231-32 (9th Cir. 1987); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir.

15

1996) (testimony from lay witnesses, who see the plaintiff on a daily basis and are often family

16

members, is of noted value); Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993) (“[a]n eyewitness

17

can often tell whether someone is suffering or merely malingering . . . this is particularly true of

18

witnesses who view the claimant on a daily basis. . .”). An ALJ may reject lay testimony only for

19

specific reasons germane to each witness. See Regennitter v. Commissioner of the Soc. Sec.

20

Admin., 166 F.3d 1294, 1298 (9th Cir. 1999); Smolen, 80 F.3d at 1289.

21

As stated in 20 C.F.R. §§ 404.1513(d) and 416.913(d), judges may, “in addition to evidence

22

from the acceptable medical sources . . . also use evidence from other sources to show the

23

severity of [plaintiff’s] impairment(s) and how it affects [his] ability to work.” 20 C.F.R. §§

24

404.1513(d), 416.913(d) (2005). Such other sources include spouses, parents and other care

25

givers, siblings, other relatives, friends, neighbors, and clergy. 20 C.F.R. §§ 404.1513(d)(4),

26

416.913(d)(4). Thus, lay witness testimony by friends and family members who have the

27

opportunity to observe a claimant on a daily basis “constitutes qualified evidence” that the ALJ

28

must consider. Sprague, 812 F.2d at 1231-32; see Dodrill, 12 F.3d at 919 (“[a]n eyewitness can 11

Case 2:04-cv-07872-PLA Document 19 Filed 01/09/06 Page 12 of 13 Page ID #:57

1

often tell whether someone is suffering or merely malingering.... [T]his is particularly true of

2

witnesses who view the claimant on a daily basis...”). An ALJ’s consideration of lay testimony

3

becomes especially important when a plaintiff alleges “that pain is a significant factor of his alleged

4

inability to work and the allegation is not supported by objective medical evidence in the file.” SSR4

5

88-13; see Smolen, 80 F.3d at 1288. To reject lay testimony, an ALJ must give reasons “germane

6

to each witness” for doing so. Dodrill, 12 F.3d at 919.

7

Here, the ALJ considered the testimony of plaintiff’s daughter5 and concluded that it reflects

8

either “cultural adjustment problems” or exaggeration by the daughter of “an older person’s

9

foibles.” [AR at 19.] He refused to find plaintiff disabled absent “some psychiatric support for

10

functional limitations.” Id. Plaintiff has not indicated what testimony from his daughter the ALJ

11

rejected, and how that would have impacted on the evaluation of disability.

12

testimony in 2002 may be consistent with that when her father was found disabled years earlier

13

does not indicate that plaintiff has not experienced improvement in his condition to the extent that

14

Dr. Nguyen’s findings -- or the ALJ’s reliance on them -- have been undermined. The ALJ’s

15

consideration of this evidence does not warrant remand.

16

/

17

/

18

/

19

/

20

/

21

The fact that her

/

22

/

23

/

24 4

25 26

Social Security Rulings (“SSR”) do not have the force of law. Nevertheless, they “constitute Social Security Administration interpretations of the statute it administers and of its own regulations,” and are given deference “unless they are plainly erroneous or inconsistent with the Act or regulations.” Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989).

27 5

28

The ALJ erroneously refers to Samcheth Chhim as plaintiff’s son. [AR at 19.] Plaintiff’s daughter testified at the hearing. [AR at 362.] 12

Case 2:04-cv-07872-PLA Document 19 Filed 01/09/06 Page 13 of 13 Page ID #:58

1

VI.

2

CONCLUSION

3 4 5 6

Accordingly, IT IS HEREBY ORDERED that: 1. plaintiff’s request for reversal, or in the alternative, remand, is denied; and 2. the decision of the Commissioner is affirmed. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel.

7 8

DATED: January 9, 2006

/S/ PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

English