Jason David Hutton v. MICHAEL J. ASTRUE, Commissioner of Social Security

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Jane A. Restani, Judge for the U.S. Court of
International Trade, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASON DAVID HUTTON,
Plaintiff - Appellant,
v.
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant - Appellee.
No. 11-15726
D.C. No. 3:09-cv-05388-CRB
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted October 18, 2012
San Francisco, California
Before: WALLACE and BEA, Circuit Judges, and RESTANI, Judge.**
Hutton appeals the decision of the district court affirming the determination
of the administrative law judge (“ALJ”) denying Hutton’s application for a period
FILED
DEC 05 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

2
of disability and disability insurance benefits. The ALJ committed legal error by
failing to consider appropriately relevant lay testimony and in failing to include
Hutton’s post-traumatic stress disorder (“PTSD”) in his assessment of Hutton’s
residual functional capacity (“RFC”) analysis at Step Four and in his hypotheticals
to the vocational expert at Step Five.
The ALJ first considered Hutton’s PTSD at Step Two of the disability
analysis. There, he evaluated the limitations that Hutton’s PTSD generated via the
four functional areas outlined in 20 C.F.R. § 404.1520a(c)(3) (i.e. activities of
daily living; social functioning; concentration, persistence, or pace; and episodes of
decompensation). Based on Dr. Gregg’s opinion, the ALJ found Hutton suffered
no limitation with respect to daily activities or social functioning, “mild”
limitations in the area of concentration, persistence, or pace, and no episodes of
decompensation. Thus, he determined that Hutton’s PTSD existed but was
“nonsevere.”
Regardless of its severity, however, the ALJ was still required to consider
Hutton’s PTSD when he determined Hutton’s RFC. See 20 C.F.R.
§ 404.1545(a)(2) (“We will consider all of your medically determinable
impairments of which we are aware, including your medically determinable
impairments that are not ‘severe[.]’”). The ALJ, however, failed to do so. Instead,

-- 2 of 4 --

3
the ALJ discredited Hutton, his treating physicians’ opinions, and the VA’s
disability rating. We do not base our action, however, on any of these
determinations by the ALJ. Importantly, the ALJ then mischaracterized Mrs.
Hutton’s testimony at least five times. Finally, the ALJ concluded that, based on
Hutton’s lack of credibility, his PTSD claims were in “great doubt.” On that basis,
the ALJ excluded Hutton’s PTSD from consideration. This exclusion was legal
error. To determine Hutton’s RFC properly, the ALJ was required to consider
Hutton’s physical impairments and the “mild” limitations his PTSD caused with
concentration, persistence, or pace, regardless of whether the ALJ doubted that
they were caused by Hutton’s ever-shifting military history. See 20 C.F.R. §
404.1545(a)(2). Further, while the ALJ was free to reject Hutton’s testimony as
not credible, there was no reason for the ALJ to disregard his own finding that
Hutton’s nonsevere PTSD caused some “mild” limitations in the areas of
concentration, persistence, or pace.
The ALJ further erred by failing to address appropriately the lay testimony
presented by Hutton’s wife and his counselor. “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.” Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001).

-- 3 of 4 --

4
In this case, however, the ALJ purported to credit the testimony of Hutton’s
wife while repeatedly mischaracterizing her testimony. In describing the statement
from Hutton’s wife, the ALJ noted that it “says nothing about any problems with
PTSD – no hypervigilance, sleep problems, or nightmares – not a word about any
of these . . . .” By contrast, Mrs. Hutton stated that “[d]ue to PTSD from military
experience he has night terrors, doesn’t sleep well.”
Additionally, the ALJ’s decision failed to refer to the testimony of Hutton's
college counselor, Mr. Frank. Mr. Frank detailed an incident in which Mr. Hutton
had difficulty in class due to an emotional reaction brought on by memories of his
military service, forcing his withdrawal from people and class. He also indicated
that due to “both [Hutton’s] physical and emotional pain,” Hutton’s completion of
his education has been a “monumental task.” Again, while an ALJ may discredit
testimony where it is inconsistent with the record, he must do so by providing
specific reasons germane to each witness.
Accordingly, the decision of the district court is REVERSED, the
determination of the ALJ is VACATED, and the case is REMANDED for the
ALJ to reconsider his determination in accordance with this decision.
Each party shall bear its own costs.

-- 4 of 4 --