Debra Ross v. Nancy Berryhill
711 F. App'x 384
| 9th Cir. | 2017Background
- Debra Ross applied for disability insurance benefits and SSI; ALJ denied benefits and the district court affirmed. Ross appealed to the Ninth Circuit.
- Ross submitted medical records and an opinion from her treating physician, Dr. Michael D. Geurin, attributing her physical symptoms to a medical condition. The ALJ did not mention Dr. Geurin or discuss his records/opinion.
- Ross testified about severe fatigue, pain, and an inability to sustain a full workday; a co-worker (Sherman) submitted a lay witness statement corroborating Ross’s limitations.
- The ALJ discounted Ross’s symptom testimony citing conservative treatment/OTC medication, inconsistency with activities, and continued smoking; the ALJ characterized Sherman’s testimony as consistent with Ross but discounted Ross’s credibility.
- The ALJ posed a hypothetical to the vocational expert that the Ninth Circuit found potentially incomplete because it may have omitted limitations from Dr. Geurin and Ross’s (and Sherman’s) testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ALJ erred by failing to consider/treat as required the opinion and treatment notes of treating physician Dr. Geurin | Ross: ALJ failed to mention or evaluate Dr. Geurin’s opinion/treatment notes, violating the requirement to evaluate every medical opinion | Commissioner: (implicit) ALJ need not adopt treating opinion if not persuasive; ALJ’s omission was harmless or permitted | Held: Reversible error — ALJ must evaluate every medical opinion; failure to mention treating physician’s records is legal error (Smolen) |
| Whether ALJ properly discounted Ross’s symptom testimony about pain and fatigue | Ross: ALJ did not give specific, clear, and convincing reasons supported by substantial evidence to reject her testimony | Commissioner: ALJ relied on conservative treatment, OTC medication, activity inconsistency, and noncompliance (smoking) to discount credibility | Held: Reversible error — ALJ did not provide specific, clear, convincing reasons; reasons cited were undermined or insufficient without addressing treating records |
| Whether ALJ properly rejected lay witness (co-worker Sherman) testimony | Ross: Sherman’s testimony corroborates Ross’s limitations and ALJ failed to give germane reasons to discount it | Commissioner: (implicit) ALJ reasonably discounted lay statement as cumulative or inconsistent | Held: Error — ALJ failed to give germane reasons for discounting Sherman’s competent lay testimony |
| Whether ALJ’s hypothetical to the vocational expert was complete | Ross: Hypothetical omitted limitations from Dr. Geurin and credible symptom testimony, so VE testimony is not evidentiary | Commissioner: (implicit) VE testimony based on ALJ’s RFC was sufficient | Held: Remand — Hypothetical may be flawed because it likely omitted limitations; VE testimony thus may lack evidentiary value |
Key Cases Cited
- Smolen v. Chater, 80 F.3d 1273 (9th Cir. 1996) (ALJ must provide legally sufficient discussion of treating physician opinions)
- Garrison v. Colvin, 759 F.3d 995 (9th Cir. 2014) (standard for rejecting claimant symptom testimony: specific, clear, and convincing reasons)
- Tommasetti v. Astrue, 533 F.3d 1035 (9th Cir. 2008) (conservative treatment and OTC medication may support discounting symptom testimony)
- Holohan v. Massanari, 246 F.3d 1195 (9th Cir. 2001) (ALJ must identify specific testimony found not credible and explain evidentiary conflict)
- Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012) (ALJ must give germane reasons to discount lay witness testimony)
- Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219 (9th Cir. 2009) (VE testimony is unreliable if hypothetical omits claimant’s limitations)
- Burrell v. Colvin, 775 F.3d 1133 (9th Cir. 2014) (remand on an open record appropriate where ALJ’s errors create serious doubt about disability determination)