Opinion
Case No. ED CV 12-1798 JCG
12-18-2013
WILLIETTA FRENCH, Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
MEMORANDUM OPINION AND
ORDER
Willietta French ("Plaintiff") challenges the Social Security Commissioner's ("Defendant") decision denying her application for disability benefits. Specifically, Plaintiff contends, among other things, that the Administrative Law Judge ("ALJ") improperly rejected the lay evidence of her sister, Antoinette French, and her niece, Shadonna Nixon. (Joint Stip. at 24-36.) The Court agrees with Plaintiff for the reasons discussed below.
A. The ALJ Failed to Provide Germane Reasons for Rejecting Ms. French's and Ms. Nixon's Lay Evidence
"[L]ay testimony as to a claimant's symptoms or how an impairment affects [their] ability to work is competent evidence and therefore cannot be disregarded without comment." Stout v. Commissioner, 454 F.3d 1050, 1053 (9th Cir. 2006) (internal quotation marks, ellipses, and citation omitted) (emphasis in original). Appropriately, then, an ALJ may discount evidence provided by a lay witness only if he provides "reasons that are germane to each witness." Id. (citing Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993)). Further, the reasons "germane to each witness" must be specific. Stout, 454 F.3d at 1054.
Here, the ALJ provided four reasons for rejecting the Third Party Function Reports ("Reports") completed by Ms. French and Ms. Nixon. (Administrative Record ("AR") at 415.) The Court addresses, and rejects, each below.
First, the ALJ rejected Ms. French's and Ms. Nixon's Reports because "they are not medical professionals or otherwise qualified to diagnose severe impairments or to assess their effect on the claimant's ability to perform work related activities." (AR at 415.) But lay witness evidence serves a different purpose than medical evidence and is specifically authorized by the Code. See 20 C.F.R. § 404.1513 (discussing different uses for medical and non-medical sources). Unlike medical evidence, which is used to "establish whether [a claimant has] a medically determinable impairment," lay testimony "show[s] the severity of [that] impairment[] and how it affects [a claimant's] ability to work." Id. §§ 404.1513(a), (d)(4) (emphasis added). The Ninth Circuit has expressly held that lay witnesses are competent to provide opinions on how a claimant's impairments bear on her ability to work. See Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009) ("A lay person, [] though not a vocational or medical expert, [is] not disqualified from rendering an opinion as to how [a claimant's] condition affects his ability to perform basic work activities.") Finally, because this reason would apply to all lay witnesses, it is not germane to Ms. French or Ms. Nixon particularly.
Second, the ALJ rejected the lay evidence of Ms. French and Ms. Nixon because "neither of them mentions [Plaintiff's] drug use." (AR at 415.) However, the stated purpose of the Report, provided by the Social Security Administration itself, is to gather information regarding "[h]ow the disabled person's illnesses, injuries, or conditions limit her activities." (See id. at 106, 576.) The Report does not focus on the illnesses, injuries, or conditions themselves. (See id. at 106-21, 576-83.) Nor does it ask, either explicitly or implicitly, about a claimant's drug use. (Id.) Rather, the Report asks very specific questions relating to a claimant's daily routine. (Id.) For instance, the Report asks about a claimant's hygiene regimen, whether she is able to do housework or prepare meals, and if she leaves the house to go shopping or socialize. (Id.) As such, it appears unreasonable for the ALJ to expect Ms. Nixon or Ms. French to include information relating Plaintiff's drug use. Accordingly, this reason fails.
Third, the ALJ rejected Ms. French's and Ms. Nixon's lay evidence because "both the sister and niece are on SSI." (Id. at 415.) While it is true that both Ms. Nixon and Ms. French are disabled and receive benefits, the ALJ does not explain how this fact bears on their credibility as witnesses. In fact, the Ninth Circuit has previously held that rejection on such grounds is improper. See Bruce, 557 F.3d at 1116 (holding that the fact that claimant's wife had applied for SSI "should not disqualify her from rendering an opinion regarding her husband's ability to work. Nor did it have any apparent bearing on her credibility."). Thus, as to this ground, the ALJ's analysis falls short.
Fourth, and finally, the ALJ rejected Ms. Nixon's and Ms. French's Reports because they are related to Plaintiff and "live in the same household." (AR at 415.) This however, amounts to a wholesale dismissal of any family member who offers lay evidence. See Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996). As such, "[t]he fact that a lay witness is a family member cannot be a ground for rejecting his or her testimony." Id. at 1289; see Regenettir v. Comm'r of Social Sec. Admin, 166 F.3d 1294, 1298 (9th Cir. 1999). Indeed, an eyewitness who interacts with the claimant on a daily basis is in a unique position to know whether the claimant is truly in pain or merely malingering. Dodrill, 12 F.3d at 919. As such, this reason is not specific to either Ms. Nixon or Ms. French, and is likewise insufficient.
For the reasons state above, the ALJ erred in rejecting Ms. Nixon's and Ms. French's lay evidence. Accordingly, the Court finds that substantial evidence did not support the ALJ's decision. See Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001).
B. Remand is Warranted
With error established, this Court has discretion to remand or reverse and award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Where no useful purpose would be served by further proceedings, or where the record has been fully developed, it is appropriate to exercise this discretion to direct an immediate award of benefits. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004). But where there are outstanding issues that must be resolved before a determination can be made, or it is not clear from the record that the ALJ would be required to find plaintiff disabled if all the evidence were properly evaluated, remand is appropriate. See id. at 594.
Here, there are outstanding issues which must be resolved before a final determination can be made. On remand, the ALJ shall reconsider the Reports completed by Ms. Nixon and Ms. French, and either credit them or provide germane reasons for rejecting it.
Based on the foregoing, IT IS ORDERED THAT judgment shall be entered REVERSING the decision of the Commissioner denying benefits and REMANDING the matter for further administrative action consistent with this decision.
In light of the Court's remand instructions, it is unnecessary to address Plaintiff's remaining contentions. (See Joint Stip. at 5-24, 38-53.)
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______________________
Hon. Jay C. Gandhi
United States Magistrate Judge