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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

DELIA ALANIZ,

Plaintiff,

v.

JO ANNE B. BARNHART, Commissioner

of Social Security,

Defendant.

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CASE NO. C06-0558-RSL

REPORT AND RECOMMENDATION

RE: SOCIAL SECURITY

DISABILITY APPEAL

Plaintiff Delia Alaniz proceeds through counsel in her appeal of a final decision of the

Commissioner of the Social Security Administration (Commissioner). The Commissioner denied

plaintiff’s applications for Supplemental Security Income (SSI), Disability Insurance (DI) benefits,

and Childhood Disability Benefits (CDB) after a hearing before an Administrative Law Judge

(ALJ).

Having considered the ALJ’s decision, the administrative record (AR), and all memoranda

of record, it is recommended that this matter be REMANDED for further administrative

proceedings.

/ / /

/ / /

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1

 Plaintiff’s date of birth is redacted back to the year of birth in accordance with the

General Order of the Court regarding Public Access to Electronic Case Files, pursuant to the

official policy on privacy adopted by the Judicial Conference of the United States.

2

 To receive CDB benefits, a claimant over the age of eighteen must establish disability

began prior to the age of twenty two. 20 C.F.R. § 404.350(a)(5). Therefore, with respect to her

CDB application, plaintiff needed to establish disability beginning on or before her twenty second

birthday, in late 2001.

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FACTS AND PROCEDURAL HISTORY

Plaintiff was born on XXXX, 1979.1 She completed at least the tenth grade at an

alternative school, but did not graduate or obtain a GED. Plaintiff previously worked as a server,

seasonal toy assembler, aide at a facility for disabled persons, attendant at homeless shelters, and

delivery driver.

With a filing month of March 2003, plaintiff filed applications for SSI, DI benefits, and

CDB. (AR 61-63, 335-38, 349-50.) She alleged disability since August 1, 2002 on her SSI and

DI applications and since November 1, 2001 on her CDB application. 2

 Her applications were

denied at the initial level and on reconsideration, and she timely requested a hearing.

On August 8, 2005, ALJ Edward P. Nichols held a hearing, taking testimony from plaintiff,

her mother Delia Piya, and vocational expert (VE) Lynn Dankel. (AR 357-99.) On October 14,

2005, ALJ Nichols issued a decision finding plaintiff not disabled. (AR 16-26.)

Plaintiff timely appealed. The Appeals Council denied plaintiff’s request for review on

March 15, 2006, making the ALJ’s decision the final decision of the Commissioner. (AR 7-10.)

Plaintiff appealed this final decision of the Commissioner to this Court.

JURISDICTION

The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g).

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DISCUSSION

The Commissioner follows a five-step sequential evaluation process for determining

whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must

be determined whether the claimant is gainfully employed. The ALJ found plaintiff had not

engaged in substantial gainful activity since her alleged onset date of November 1, 2001. At step

two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found

plaintiff’s posttraumatic stress disorder (PTSD), depression, substance abuse, and anxiety disorder

severe. Step three asks whether a claimant’s impairments meet or equal a listed impairment. The

ALJ found that plaintiff’s impairments did not meet or equal the criteria for any listed impairment.

If a claimant’s impairments do not meet or equal a listing, the Commissioner must assess residual

functional capacity (RFC) and determine at step four whether the claimant has demonstrated an

inability to perform past relevant work. The ALJ assessed plaintiff’s RFC and found her able to

perform her past relevant work as a delivery driver and assembler. If a claimant demonstrates an

inability to perform past relevant work, the burden shifts to the Commissioner to demonstrate at

step five that the claimant retains the capacity to make an adjustment to work that exists in

significant levels in the national economy. Finding plaintiff not disabled at step four, the ALJ did

not proceed to step five.

This Court’s review of the ALJ’s decision is limited to whether the decision is in

accordance with the law and the findings supported by substantial evidence in the record as a

whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means more

than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750

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(9th Cir. 1989). If there is more than one rational interpretation, one of which supports the ALJ’s

decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.

2002).

Plaintiff argues generally that the vast weight of the evidence requires a finding of

disability. Specifically, she asserts that the ALJ erred in giving more weight to the opinions of

one-time consultative examiners than to her treating psychiatrist, in assessing her credibility, in

finding her capable of returning to her past relevant work, and in failing to fully develop the

record. Plaintiff also cursorily states in her conclusion that the ALJ failed to properly consider lay

witness testimony. She requests remand for an award of benefits or, alternatively, for further

administrative proceedings. The Commissioner argues that the ALJ’s decision is supported by

substantial evidence and should be affirmed.

The Court has discretion to remand for further proceedings or to award benefits. See

Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). The Court may direct an award of benefits

where “the record has been fully developed and further administrative proceedings would serve

no useful purpose.” McCartey v. Massanari 298 F.3d 1072, 1076 (9th Cir. 2002).

Such a circumstance arises when: (1) the ALJ has failed to provide legally sufficient

reasons for rejecting the claimant’s evidence; (2) there are no outstanding issues that

must be resolved before a determination of disability can be made; and (3) it is clear

from the record that the ALJ would be required to find the claimant disabled if he

considered the claimant’s evidence.

Id. at 1076-77.

Physicians’ Opinions

In general, more weight should be given to the opinion of a treating physician than to a

non-treating physician, and more weight to the opinion of an examining physician than to a nonCase 2:06-cv-00558-RSL Document 19 Filed 11/15/06 Page 4 of 18
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examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Where not contradicted

by another physician, a treating or examining physician’s opinion may be rejected only for “‘clear

and convincing’” reasons. Id. (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)).

Where contradicted, a treating or examining physician’s opinion may not be rejected without

“‘specific and legitimate reasons’ supported by substantial evidence in the record for so doing.”

Id. at 830-31 (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). Where the opinion

of the treating physician is contradicted, and the non-treating physician’s opinion is based on

independent clinical findings that differ from those of the treating physician, the opinion of the

non-treating physician may itself constitute substantial evidence. See Andrews v. Shalala, 53 F.3d

1035, 1041 (9th Cir. 1995). It is the sole province of the ALJ to resolve this conflict. Id.

Plaintiff challenges the ALJ’s decision to give “little weight” to the opinions of her treating

psychiatrist, Dr. Agnes Koesis. (AR 23-24 and 333.) Plaintiff states that Dr. Koesis had the

benefit of case notes and medical records covering a near eighteen-month period and clearly

opined that she is unable to work due to severe bipolar disorder and PTSD. Plaintiff notes that,

in contrast, the examining physicians upon whose opinions the ALJ relied, Drs. Mark Koenen and

Norman Gustavson, saw her only once each. (AR 228-33, 250-55.) She adds that Dr. Gustavson

assessed chronic and severe PTSD and a Global Assessment of Functioning (GAF) of 45-50,

indicating severe symptoms or serious impairment. (AR 250-55.) Plaintiff avers that the ALJ was

required to give more weight to the opinion of Dr. Koesis and that he failed to provide specific

and legitimate reasons for rejecting that physician’s opinions, other than to question plaintiff’s

veracity in reporting. (See AR 23-24.)

The Commissioner responds that even a treating source’s opinions are not entitled to

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controlling weight where not “well-supported by medically acceptable clinical and laboratory

diagnostic techniques,” Social Security Ruling (SSR) 96-2p, and that the determination of

whether someone is disabled is ultimately reserved to the Commissioner, SSR 96-5p. The

Commissioner argues the sufficiency of the ALJ’s reasoning, pointing to, among other things, the

ALJ’s notation that the record did not include any treatment notes from Dr. Koesis, and that

evidence of plaintiff’s activities suggested greater capability in social functioning than reflected in

Dr. Koesis’s opinion regarding plaintiff’s anxiety.

In reply, plaintiff reiterates that Dr. Koesis had access to her records from previous

treatment at the same facility. (See AR 273-300.) Those records include the notes of plaintiff’s

previous treating physician, Dr. Elizabeth Noll. (See, e.g., AR 293-300.) Plaintiff also points to

her testimony reflecting that her periodic attempts to socialize were for the most part unsuccessful.

(See, e.g., AR 370-71, 374, 382-83.)

The record contains a letter from Dr. Koesis dated August 8, 2005, stating in relevant part:

Delia Alaniz is diagnosed with Severe Bipolar Disorder and [PTSD]. Patient, at this

time, I feel, is unable to work. She suffers from mood lability with minimal

improvement on medications. In addition, patient experiences severe anxiety and

paranoia in social situations which would most likely manifest in the workplace

setting. Patient’s post traumatic [stet] is usually triggered by loud noises, pressure of

responsibility, pressure to perform the most simple tasks, and males who remind her

of her abuser.

(AR 333.) The ALJ assessed the opinions of Dr. Koesis, as well as Drs. Koenen and Gustavson,

as follows:

Dr. Koesis has opined that the claimant is disabled. She is apparently the claimant’s

current treating psychiatrist after Dr. Noll left, but there are no treatment notes from

her. The claimant apparently told Dr. Koesis that her traumatic memories were

triggered by males who reminded her of her abuser, but no records record this. She

said that the claimant experienced severe anxiety in social situations, but the claimant

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 Plaintiff points to Reddick v. Chater, 157 F.3d 715, 725-26 (9th Cir. 1998), in which the

Ninth Circuit criticized an ALJ’s rejection of physicians’ opinions because they were based on the

subjective complaints of a claimant found not very credible. However, in that case, the Court

found such a rejection “ill-suited” to the chronic-fatigue syndrome at issue, a condition with

symptoms necessarily self-reported. Id. Also, the Court noted, inter alia , that one of the

physicians had followed the claimant’s “progress for three and a half years, referred her to several

specialists and conducted extensive lab testing to rule out other possible illnesses.” Id. at 726.

These factors distinguish Reddick from the facts of this case. See also Bayliss v. Barnhart, 427

F.3d 1211, 1217 (9th Cir. 2005) (upholding ALJ’s decision to not rely on physicians’ opinions

based, in part, on their reliance on the claimant’s subjective complaints).

REPORT AND RECOMMENDATION

RE: SOCIAL SECURITY DISABILITY APPEAL

PAGE -7

attends barbecues[,] goes to the park with friends, goes shopping and visits her

mother and brothers regularly. This suggests that she is more capable of functioning

socially than she has reported to Dr. Koesis, and again it appears the Doctor is relying

on a source (the Claimant) of highly questionable veracity, hence her opinion is

entitled to little weight as its foundation is flawed.

Dr. Gustavson and Dr. Koenen have opined that the claimant is able to function with

limited supervisor, coworker contact and in only simple and repetitive tasks. This is

also consistent with the evaluations from the State Agency.

(AR 23-24.)

Plaintiff fails to demonstrate reversible error in the ALJ’s assessment of these physicians’

opinions. While plaintiff correctly points out Dr. Koesis’s access to prior treatment notes, the

ALJ’s comment is nonetheless accurate – there are no treatment notes from Dr. Koesis in the

record. Also, the ALJ does provide reasons for rejecting the opinions of Dr. Koesis, including the

fact that one of her statements is not supported by the record and that plaintiff’s reported activities

belie this physician’s statement regarding the extent of plaintiff’s anxiety. Although plaintiff

testified that her attempts to socialize were largely unsuccessful, the ALJ did not find plaintiff

particularly credible, as discussed below. (See AR 23.) Plaintiff does not demonstrate that the

ALJ erred in relying, in part, on a finding that Dr. Koesis’s opinions rested on a “flawed”

foundation. (AR 24.)3

 Finally, although the findings attributed to both Dr. Gustavson and Dr.

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4

 It is difficult to discern the opinions of Dr. Gustavson from his report. Rather than

assessing plaintiff’s limitations, he focuses primarily on the appropriate diagnoses of her

impairments. (See AR 250-55.)

REPORT AND RECOMMENDATION

RE: SOCIAL SECURITY DISABILITY APPEAL

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Koenen appear to come from the report of Dr. Koenen, Dr. Gustavson, while assessing a GAF

indicating severe symptoms or serious impairment, also found “no significant limitation in

[plaintiff’s] ability to handle daily living skills.” (AR 255.)4

In sum, the ALJ provided specific and legitimate reasons for according little weight to the

opinions of Dr. Koesis and rationally relied on the contrary opinions of at least one examining

physician and two non-examining physicians.

Credibility

Absent evidence of malingering, an ALJ must provide clear and convincing reasons to

reject a claimant’s testimony. See Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). See

also Thomas, 278 F.3d at 958-59. In finding a social security claimant’s testimony unreliable, an

ALJ must render a credibility determination with sufficiently specific findings, supported by

substantial evidence. “General findings are insufficient; rather, the ALJ must identify what

testimony is not credible and what evidence undermines the claimant’s complaints.” Lester, 81

F.3d at 834. “We require the ALJ to build an accurate and logical bridge from the evidence to her

conclusions so that we may afford the claimant meaningful review of the SSA’s ultimate findings.”

Blakes v. Barnhart, 331 F.3d 565, 569 (7th Cir. 2003). “In weighing a claimant’s credibility, the

ALJ may consider his reputation for truthfulness, inconsistencies either in his testimony or between

his testimony and his conduct, his daily activities, his work record, and testimony from physicians

and third parties concerning the nature, severity, and effect of the symptoms of which he

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complains.” Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).

The ALJ rendered the following credibility decision in this case:

I do not find the claimant particularly credible. The claimant has commented that she

does not want to go back to school. She has said that she does not want to work

because none of her friends work. Before she left her last job, she told her counselor

that she hated the job, suggesting that her failure to show up for work could have

been largely volitional. When the claimant feels that she has to do something, she

apparently does it well, as she was able to care for her mother when she was

recovering from surgery. She was also asked to care for her cousin’s baby,

suggesting that people trust her not to lose her temper. While she talks about

isolating herself, she has talked about going out with friends and mentioned going to

barbecues at the hearing. She has traveled to Mexico for six weeks. She does have

a history of impulsive behavior and inability to get along with people. Substance

abuse probably continues to play a role in her impairments. She was very vague at the

hearing concerning this issue. The claimant appears to be able to do what she wants

to, but like Mellville’s Bartelby the Scrivner, she prefers not to work.

(AR 23.) Also, in addition to questioning plaintiff’s veracity in assessing the opinions of Dr.

Koesis, the ALJ stated the following in giving no weight to the report of another physician: “The

claimant is not credible, and appears easily capable of telling a doctor what she feels will get her

what she wants.” (Id.)

Plaintiff argues that the ALJ ignored or misinterpreted evidence indicating her disability.

She again points to evidence suggesting her unsuccessful attempts to socialize and states that the

ALJ speculated as to, rather than developed the nature of the situations involving her care for her

mother and a request to care for a cousin’s child.

However, as argued by the Commissioner, plaintiff fails to demonstrate error in the ALJ’s

credibility assessment. The ALJ appropriately pointed to inconsistencies between plaintiff’s

testimony and evidence of her conduct, activities, and past work record. See Light, 119 F.3d at

792. The ALJ also legitimately pointed to plaintiff’s past comments regarding work. See, e.g.,

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Thomas, 278 F.3d at 959 (upholding credibility assessment in which “the ALJ found that Ms.

Thomas had an ‘extremely poor work history’ and ‘has shown little propensity to work in her

lifetime,’ which negatively affected her credibility regarding her inability to work.”); Bruton v.

Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (upholding rejection of plaintiff’s subjective pain

testimony based, in part, on the fact that the claimant “stated at the administrative hearing and to

at least one of his doctors that he left his job because he was laid off, rather than because he was

injured.”) Nor does plaintiff establish that it was in any way inappropriate for the ALJ to point

to plaintiff’s care for her mother and to the request that she care for a cousin’s child as evidence

inconsistent with her alleged level of impairment. For these reasons, the ALJ’s credibility

assessment is supported by substantial evidence and should be upheld.

Past Relevant Work

Plaintiff maintains that the ALJ erred in finding her able to return to her past relevant work.

She first points to SSR 82-62 as requiring a “careful appraisal” of:

(1) the individual’s statements as to which past work requirements can no longer be

met and the reason(s) for his or her inability to meet those requirements; (2) medical

evidence establishing how the impairment limits ability to meet the physical and

mental requirements of the work; and (3) in some cases, supplementary or

corroborative information from other sources such as employers, the Dictionary of

Occupational Titles, etc., on the requirements of the work as generally performed in

the economy.

SSR 82-62. This ruling further states: 

Adequate documentation of past work includes factual information about those work

demands which have a bearing on the medically established limitations. Detailed

information about strength, endurance, manipulative ability, mental demands and

other job requirements must be obtained as appropriate. This information will be

derived from a detailed description of the work obtained from the claimant, employer,

or other informed source.

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Id. Finally, plaintiff points to the requirement stated in this SSR that a decision finding a claimant

capable of returning to past relevant work must contain a “finding of fact” as to, inter alia, “the

physical and mental demands of the past job/occupation.” Id. She next points to SSR 82-61 as

stating that an individual will be found disabled upon a determination that he or she retains the

RFC to perform either “[t]he actual functional demands and job duties of a particular past relevant

job; or . . . [t]he functional demands and job duties of the occupation as generally required by

employers throughout the national economy.”

Plaintiff argues that the ALJ failed to provide a finding of fact as to the mental demands

of her past jobs or to compare her psychological limitations with the work demands of her past

relevant work. She states that neither testimony, nor documentary evidence offers any significant

indication as to the mental requirements of her past relevant work. Plaintiff adds that neither the

actual details of her past relevant work, nor the details as to that work as generally required by

employers in the national economy were established in the record.

The Commissioner first notes that plaintiff bears the burden of showing she can no longer

perform her past relevant work. Barnhart v. Thomas, 540 U.S. 20, 25 (2003). The Commissioner

further notes that plaintiff described her work as an assembler and that the VE discussed the

delivery job duties. ( See AR 364, 388-89.) The Commissioner asserts that the ALJ properly

discredited alleged limitations found not credible and accounted for any credible limitations

supported by the record. See, e.g., Bayliss v. Barnhart , 427 F.3d 1211, 1217 (9th Cir. 2005)

(“The hypothetical that the ALJ posed to the VE contained all of the limitations that the ALJ

found credible and supported by substantial evidence in the record. The ALJ's reliance on

testimony the VE gave in response to the hypothetical therefore was proper.”) The Commissioner

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avers that the ALJ’s finding that plaintiff could perform her past relevant work in light of her RFC

was based on substantial evidence and should be upheld.

Again, plaintiff does not demonstrate reversible error. The ALJ’s discussion of plaintiff’s

RFC and past relevant work was rather cursory:

Accordingly, I find the claimant retains the [RFC] to perform simple, repetitive,

structured work that is primarily performed alone with limited contact with the public,

coworkers or supervisors.

. . . 

The evidence in this case establishes that the claimant has past relevant work as a

delivery driver and assembler. I note that, according to the claimant’s testimony, she

left the job as a driver due to car problems and not due to any problems related to her

impairment.

The impartial [VE] testified that based upon the claimant’s [RFC], the claimant could

return to her past relevant work as assembler and movie delivery person. She said

that these jobs would only have minimal, superficial contact with the public.

(AR 24.) However, the ALJ previously discussed the medical record and plaintiff’s testimony in

detail, finding plaintiff’s testimony as to her limitations not particularly credible and assessing only

the above-described limitations. ( See AR 18-24.) This discussion suffices as the “careful

appraisal” called for in SSR 82-62. Also, although again rather cursory, the ALJ did make the

required finding of fact as to the demands of plaintiff’s past relevant work, noting those positions

required “only . . . minimal, superficial contact with the public[,]” assessing plaintiff’s RFC as

described above, and finding that plaintiff’s “past relevant work as assembler and movie delivery

person did not require the performance of work-related activities precluded by her [RFC].” (AR

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 It should be noted that the ALJ did not assess, nor does plaintiff contest the existence of

any severe physical impairments.

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24-25.)5

Also, as argued by the Commissioner, the record contains information sufficient to satisfy

SSR 82-61 and SSR 82-62 with regard to the particulars of plaintiff’s past relevant work as an

assembler and movie delivery person. Plaintiff testified regarding her work as an assembler:

I was at assembly, I was at, I wasn’t at the warehouse I was at a other area, I was in

Rainier where I was assembling stuff like the LEGOs and the toys like everything that

went on the internet. Like I would assemble the stuff and then the photographers

would come and take pictures of it and put on the internet so everything now was on

the internet, I would take, I’d put it together first. Like the swimming pools I’d blow

them up.

(AR 364.) The VE testified both as to the job duties of a movie delivery person generally and

more specifically the extent to which such a job required contact with the public:

Q So movie delivery, wouldn’t you be picking up movies for the employer and delivering

them to people?

A Yes.

Q And driving around and around and [INAUDIBLE]

A Yes.

Q The public?

A I would say that would be superficial contact with the public, it wouldn’t be extended

contact. I think there’d be a lot of time in between.

. . . 

A I’ve looked at the delivery, the movie delivery as being superficial contact and maybe, I

don’t know that that fits the minimum description but I would look at it as superficial and

really minimal and it falls into a classification like for example people that deliver and pick

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up lab supplies or lab samples and there’s very limited contact with the public.

ALJ: Deliver the product, sign the papers and leave?

VE: Right, right. So if a person could do I mean if they could minimal they could do that, I

would say that would be within that limitation.

(AR 388-89 (also further elaborating as to “superficial” contact.)) (See also AR 387 (VE testified

that movie delivery work was light, unskilled work.)) Moreover, as indicated by the ALJ, plaintiff

testified that she lost the movie delivery job based on car problems and that she was not having

any problems performing that job. (AR 367.)

Given all of the above, plaintiff fails to demonstrate any reversible error either in the

assessment of her RFC or the ALJ’s determination that plaintiff could perform her past relevant

work. While the ALJ’s step four assessment could have been more detailed, it is sufficient and

supported by substantial evidence.

Developing the Record

Plaintiff argues that the ALJ failed to fully develop the record in this case. In particular,

she points to the ALJ’s dismissal of Dr. Koesis’s opinion based on its allegedly flawed foundation

and absence of treatment notes. The Commissioner responds that “[a]n ALJ’s duty to develop the

record further is triggered only when there is ambiguous evidence or when the record is

inadequate to allow for proper evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453,

459-60 (9th Cir. 2001). In reply, plaintiff notes an ALJ’s obligation to recontact a treating

physician or psychologist when the evidence received is inadequate for a determination of

disability, 20 C.F.R. §§ 404.1512(e), 416.912(e), and maintains that the ALJ clearly found the

evidence from Dr. Koesis inadequate in pointing to the absence of treatment notes from this

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physician.

As stated above, the ALJ accurately noted the absence of treatment notes from Dr. Koesis.

(AR 23.) This notation does not necessarily establish that the ALJ found the evidence from Dr.

Koesis inadequate or ambiguous. In fact, the ALJ went on to provide several unrelated reasons

for assigning little weight to this physician’s opinions. The ALJ also adequately addressed the

treatment records from Dr. Koesis’s predecessor. (See, e.g., AR 20.) As such, plaintiff fails to

demonstrate error with respect to the development of the record.

Lay Witness Testimony

In the conclusion section of her brief, plaintiff states without elaboration that the ALJ failed

to properly consider the testimony of lay witnesses. ( See Dkt. 11 at 20.) In response, the

Commissioner notes “several references to the statements of Plaintiff’s mother involving Plaintiff’s

activities of daily living and ability to help her mother after surgery[,]” and states: “Clearly, the

ALJ considered the lay witness testimony since it was used in the discussion of Plaintiff’s abilities.”

(Dkt. 15 at 11 (citing AR 22-23.))

Lay witness testimony as to a claimant’s symptoms or how an impairment affects ability

to work is competent evidence. Van Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). The

ALJ can reject the testimony of lay witnesses only upon giving reasons germane to each witness.

See Smolen v. Chater, 80 F.3d 1273, 1288-89 (9th Cir. 1996) (finding rejection of testimony of

family members because, inter alia, they were “‘understandably advocates, and biased’” amounted

to “wholesale dismissal of the testimony of all the witnesses as a group and therefore [did] not

qualify as a reason germane to each individual who testified.”) (citing Dodrill v. Shalala, 12 F.3d

915, 918 (9th Cir. 1993)). Accord Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) (“[L]ay

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testimony as to a claimant’s symptoms is competent evidence that an ALJ must take into account,

unless he or she expressly determines to disregard such testimony and gives reasons germane to

each witness for doing so.”) Moreover, as recently found by the Ninth Circuit: “[W]here the

ALJ’s error lies in a failure to properly discuss competent lay testimony favorable to the claimant,

a reviewing court cannot consider the error harmless unless it can confidently conclude that no

reasonable ALJ, when fully crediting the testimony, could have reached a different disability

determination.” Stout v. Commissioner, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006).

Here, the ALJ described the testimony of plaintiff’s mother as follows:

The claimant’s mother testified that she sees the claimant almost every week. She

also talks to her on the telephone. She said that the claimant could get angry in a

second and start throwing things. She is different since she started medication, but

it still happens. Almost every time she sees the claimant, she has problems with

temper flares. She takes the claimant shopping. She said that the claimant helped her

out when she had surgery and she did well, but it was a big burden for her. She said

that [t]he claimant has talked about her joints and back hurting her. She said that the

claimant has had problems with concentration for years. She said that the claimant

lived in an abusive household as a child.

(AR 22.) (See also AR 381-86 (testimony of plaintiff’s mother.)) However, the ALJ does not

elsewhere address this testimony.

The ALJ erred in failing to provide germane reasons for rejecting the testimony of

plaintiff’s mother, particularly given that it largely corroborates plaintiff’s testimony regarding her

difficulty in interacting with others. Further, it cannot be said that no reasonable ALJ, upon fully

crediting the testimony of plaintiff’s mother, would have reached a different disability

determination.

In addition, the record contains a “Daily Activities Questionnaire” completed by a friend

of plaintiff. (See AR 110-14.) In that questionnaire, the friend addresses, inter alia, plaintiff’s

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depression, symptoms, memory problems, anger, frustration, and minimal daily activities. (Id.)

However, it does not appear that the ALJ ever considered this questionnaire, as the decision

contains no discussion of or citation to this document.

This matter should be remanded to allow for further consideration of the testimony of

plaintiff’s mother and the questionnaire submitted by her friend. However, the record does not

warrant crediting this testimony as true because, even doing so, the record does not support a

finding of disability. Compare, e.g., Schneider v. Commissioner of Social Sec. Admin., 223 F.3d

968, 976 (9th Cir. 2000) (“When the lay evidence that the ALJ rejected is given the effect required

by the federal regulations, it becomes clear that the severity of [plaintiff’s] functional limitations

is sufficient to meet or equal [a listing.]”); Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996)

(ALJ’s reasoning for rejecting subjective symptom testimony, physicians’ opinions, and lay

testimony legally insufficient; finding record fully developed and disability finding clearly required),

with Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) (remanding for further

determinations where there were insufficient findings as to whether plaintiff’s testimony should

be credited as true); Barbato v. Commissioner of Soc. Sec. Admin., 923 F. Supp. 1273, 1278

(C.D. Cal. 1996) (remanding for further proceedings where the ALJ made a good faith error, in

that some of his stated reasons for rejecting a physician’s opinion were legally insufficient).

/ / /

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CONCLUSION

For the reasons set forth above, this matter should be REMANDED for further

administrative proceedings.

DATED this 15th day of November, 2006.

A

Mary Alice Theiler

United States Magistrate Judge 

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