Stout v. Commissioner, Social Sec. Admin.

Decision Date25 July 2006
Docket NumberNo. 04-36006.,04-36006.
PartiesGordon STOUT, Plaintiff-Appellant, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Alan S. Graf and Kimberly K. Tucker, Alan Stuart Graf, P.C., Portland, OR, for the appellant.

Robert D. McCallum, Jr., Assistant Attorney General, United States Department of Justice, Washington D.C.; Karin J. Immergut, United States Attorney, and Craig J. Casey, Assistant United States Attorney, United States Attorney's Office, Portland, OR; and Vikash Chhagan, Acting Regional Chief Counsel, Region X, and L. Jamala Edwards, Assistant Regional Counsel, Social Security Administration, Office of the General Counsel, Seattle, Washington, for the appellee.

Appeal from the United States District Court for the District of Oregon; Malcolm F. Marsh, District Judge, Presiding. D.C. No. CV-03-06113-MFM.

Before: BROWNING, D.W. NELSON, and O'SCANNLAIN, Circuit Judges.

BROWNING, Circuit Judge:

Gordon Stout appeals the district court's judgment affirming the Social Security Commissioner's ("Commissioner") denial of his applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI, respectively, of the Social Security Act. Stout contends the Administrative Law Judge ("ALJ") improperly disregarded lay testimony regarding his inability to work.1 We have jurisdiction under 28 U.S.C. § 1291. Because the ALJ failed to discuss competent lay witness testimony favorable to Stout, we reverse the district court's judgment and remand.

I

Stout filed his current claims for DIB and SSI in February 2000, alleging disability primarily due to back and mental impairments with an onset date of April 18, 1997. The Social Security Administration denied these claims initially and upon reconsideration. Stout requested a hearing.

At his hearing in February 2002, Stout's sister, Udena Stout ("Udena"), testified that Stout's impairments negatively affect his ability to work. Additionally, the ALJ received into evidence a letter from Stout's brother-in-law, Jay Vasquez, with whom Stout worked for approximately fifteen years. Similar to Udena's testimony, Vasquez described Stout's inability to work without certain accommodations. During a supplemental hearing in March 2002, a vocational expert ("VE") testified. In response to the ALJ's hypothetical, the VE opined that Stout could perform one of his previous jobs and other jobs in the national economy.

In his decision, the ALJ found Stout able to perform his past relevant work as a vine pruner and, therefore, not disabled within the meaning of the Social Security Act. The Appeals Council denied Stout's request for review, making the ALJ's decision the Commissioner's final decision. See 20 C.F.R. § 404.981. Stout sought judicial review in the United States District Court for the District of Oregon, which affirmed the Commissioner's decision. Stout timely appeals.

II

We review de novo the district court's affirmance of the Commissioner's final decision. Webb v. Barnhart, 433 F.3d 683, 685-86 (9th Cir.2005). We will uphold the Commissioner's denial of benefits if the Commissioner applied the correct legal standards and substantial evidence supports the decision. Id. at 686.

III
A

To medically qualify for benefits under the Social Security Act, a claimant must establish "the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). In assessing whether a claimant is disabled, the ALJ follows a five-step, sequential evaluation process:

Step one: Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.

Step two: Is the claimant's alleged impairment sufficiently severe to limit his or her ability to work? If so, proceed to step three. If not, the claimant is not disabled.

Step three: Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R., pt. 404, subpt. P, app. 1? If so, the claimant is disabled. If not, proceed to step four.

Step four: Does the claimant possess the residual functional capacity ("RFC") to perform his or her past relevant work? If so, the claimant is not disabled. If not, proceed to step five.

Step five: Does the claimant's RFC, when considered with the claimant's age, education, and work experience, allow him or her to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled.

See 20 C.F.R. §§ 404.1520, 416.920.

B

On appeal, Stout challenges the ALJ's findings at steps four and five.2 At step four, the ALJ determined Stout's RFC— the most Stout could still do despite his limitations. See 20 C.F.R. §§ 404.1545, 416.945. Finding that Stout had various physical restrictions and a limited capacity for teamwork and required non-complex, "two to three step tasks which are fairly repetitive," the ALJ concluded Stout could "perform a wide range of light unskilled work, and the inclusive sedentary level work." See 20 C.F.R. §§ 404.1567(a) & (b), 416.967(a) & (b).

Based upon Stout's RFC and the VE's testimony, the ALJ found Stout able to perform his past relevant work as a vine pruner. Consequently, the ALJ concluded Stout was not disabled within the meaning of the Social Security Act. See 20 C.F.R. §§ 404.1560(b)(3) ("If we find that you have the [RFC] to do your past relevant work, we will determine that you can still do your past work and are not disabled."), 416.960(b)(3) (same).

Stout contends the ALJ erred in finding he could perform his past relevant work and other work in the national economy. Specifically, he argues the ALJ erred in rejecting without comment the lay witness testimony of his sister, Udena, and brother-in-law, Jay Vasquez. The Commissioner concedes error but argues it was harmless. We disagree.

C

In determining whether a claimant is disabled, an ALJ must consider lay witness testimony concerning a claimant's ability to work. See Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir.1993); 20 C.F.R. §§ 404.1513(d)(4) & (e), 416.913(d)(4) & (e). Indeed, "lay testimony as to a claimant's symptoms or how an impairment affects ability to work is competent evidence . . . and therefore cannot be disregarded without comment." Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir.1996) (citations omitted). Consequently, "[i]f the ALJ wishes to discount the testimony of lay witnesses, he must give reasons that are germane to each witness." Dodrill, 12 F.3d at 919; see also Lewis v. Apfel, 236 F.3d 503, 511 ("Lay 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." (citations omitted)).

Here, the ALJ was required to consider and comment upon the uncontradicted lay testimony, as it concerned how Stout's impairments impact his ability to work. Both Udena and Vasquez testified, consistent with medical evidence, about Stout's inability to deal with the demands of work. After explaining Stout has "problems" accomplishing even simple tasks, Vasquez, who worked with Stout for fifteen years as both his boss and co-worker, provided the following example: "I would have [Stout] clean out the tool trailer and ask him to label nails, nuts, bolts, and screws. Ten minutes later I would come back and he would be throwing things on the ground, becoming frustrated with the simplest of tasks." Similarly, Udena testified that simple, monotonous tasks "easily frustrate[ ]" Stout, so much so that, "when something doesn't go just right[,] . . . he goes into a rage, blindly throwing things and self-destruction [sic]."

Moreover, both witnesses explained Stout's uncommon need for supervision to perform uncomplicated tasks. For instance, Udena testified that for Stout to "keep focused on the job at hand," someone must "watch over him." While she stated Stout "could handle" simple jobs, such as "pick[ing] up stuff in the yard," she further clarified why he needs supervision to accomplish such jobs: "Mentally he would tend to stray [from] what he's supposed to be doing, find interest in other things, wander off, and probably explore the area." Likewise, Vasquez stated that, for Stout to accomplish even "menial labor," he requires "constant supervision."

Although the VE specifically testified that a need for literal, constant supervision would not be acceptable in competitive employment, save for one passing reference to Udena's testimony about Stout's general self-destructive behaviors, the ALJ's decision wholly fails to mention Udena's or Vasquez's testimony about how Stout's impairments affect his ability to work. Therefore, the ALJ erred. See Nguyen, 100 F.3d at 1467.

D

Conceding the ALJ's silent disregard of the lay testimony contravenes our case law and the controlling regulations, the Commissioner requests we disregard the error as harmless. The Commissioner's argument echoes, if not recites verbatim, the district court's harmless error analysis, which it began by reasoning that Udena's testimony "suggests [Stout] has always had intellectual deficits, depression, and episodes of self-destructive behavior. Yet, [Stout] has been able to engage in substantial work activity in the past." As to Vasquez's testimony, the court reasoned that he worked with Stout for fifteen years and, "[w]hile it took effort, [Stout] was able to engage in substantial gainful activity while suffering from his current impairments." Because the district court found "[t]he medical evidence establishes that nothing has changed," it concluded there was "no reason to...

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