Jager v. Barnhart
Jager v. Barnhart
Opinion of the Court
MEMORANDUM
Joan Jager appeals the district court’s order affirming the Commissioner of the Social Security Administration’s decision to deny her application for social security disability benefits. Because the parties are familiar with the facts, we recite here only those facts necessary to explain our decision. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand to the district court with instructions to remand to the Commissioner for further proceedings.
We review de novo the district court’s order upholding the Commissioner’s denial of benefits. Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003). We must affirm the Commissioner’s decision if it is supported by substantial evidence and correctly applies the law. Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001).
I. Rejection of Evidence
The ALJ improperly rejected the opinion of Dr. Ehly, Jager’s treating physician for ten years. Dr. Ehly opined that since the onset of her illness, Jager has “never been able to return to full time work” and “her ability to perform in a competitive work situation is impaired.” Disregarding Dr. Ehly’s opinion, the ALJ relied on the opinions of Dr. Goldberg and Dr. Harris, the non-examining psychologists. “The opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of ... a treating physician.” Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995).
Although the ALJ gave various reasons for rejecting Dr. Ehly’s opinion, they are not “specific and legitimate reasons supported by substantial evidence in the record.” Id. at 830 (internal quotations and citation omitted). For example, contrary to the ALJ’s finding that Dr. Ehly’s opinion was “not supported by contemporaneous notes or observations,” the hospital discharge summary describes Jager’s “6 months period of increased energy, sleep[less]-ness, acceleration of her thought processes, confusion, poor concentration ... [and] loss of control” caused by
The ALJ also erred in giving no weight to the observations of Emily Schoenfelder, a mental health therapist who treated Jager for several years. Because therapists are “other sources” under 20 C.F.R. § 404.1513(d), the ALJ was entitled to accord Schoenfelder’s opinion “less weight than opinions from acceptable medical sources.” Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996) (emphasis added). The ALJ’s sole reason for giving no weight to Schoenfelder’s observations was the fact that her treatment began after Jager’s date last insured. But given the ongoing nature of Jager’s disability, Schoenfelder’s observations, like lay witness observations, would still be relevant to the issue of how Jager’s “impairment affects [her] ability to work.” Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993) (quoting 20 C.F.R. § 404.1513(e)(2)). The ALJ did not err, however, in rejecting Nurse Bobbi Fletcher’s observations for being “grossly exaggerated in light of [Jager’s] own testimony of her current and past functioning.”
The ALJ also failed to provide clear and convincing reasons for discrediting Jager’s subjective complaints, notably, fatigue. Because Jager produced “medical evidence of an underlying impairment, the Commissioner may not discredit [her] testimony as to subjective symptoms merely because they are unsupported by objective evidence.” Lester, 81 F.3d at 834. Absent “affirmative evidence showing that the claimant is malingering, the Commissioner’s reasons for rejecting the claimant’s testimony must be clear and convincing.” Id. (internal quotations and citation omitted). In discrediting her testimony, the ALJ relied largely on Jager’s ability to perform daily activities, including babysitting her nephews during the summer. However, these daily activities do not conflict with her claims of disability because she testified that fatigue and stress severely limited those activities, and she received babysitting assistance from her husband. See Fair, 885 F.2d at 603 (“[H]ome activities are not easily transferable to what may be the more grueling environment of the workplace”); Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (explaining that claimant’s activities are “quite limited and carried out with difficulty”).
The ALJ also improperly discredited the lay witness statements of Jager’s husband, Leonard, and her sister, Adrienne Barbón. “[T]estimony from lay witnesses who see the claimant every day is of particular value.” Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996). The ALJ must take lay testimony into account unless he provides reasons that are “germane to each witness whose testimony he re
II. Five-Step Sequential Analysis
The ALJ’s step two determination that Jager did not have a severe impairment for a twelve-month period is not supported by substantial evidence. Step two is “a de minimis screening device [used] to dispose of groundless claims,” and an impairment may be found “not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual’s ability to work.” Webb v. Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005) (quoting Smolen, 80 F.3d at 1290). Jager’s impairment satisfies step two’s de minimis threshold.
The ALJ’s alternate step three and step five findings, as well as the residual functional capacity (“RFC”) assessment,
REVERSED and REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
. A claimant may be found "disabled” only at steps three and five. See 20 C.F.R. § 404.1520(a)(4). The RFC assessment is made before going from step three to step four. Id. The ALJ uses the RFC assessment at the fourth step to determine if claimant can do her past relevant work, and at the fifth step to determine if claimant can adjust to other work. Id. Here, the ALJ determined at step four that Jager could not perform her past relevant work, a finding that is not disputed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.