Opinion
CV-22-1819-PHX-DWL (JFM)
09-28-2023
Curtis Bruns, Plaintiff v. Commissioner of Social Security Administration, et al., Defendants.
REPORT & RECOMMENDATION
JAMES F. METCALF, UNITED STATES MAGISTRATE JUDGE
This matter is before the undersigned magistrate judge on referral for preparation of a report and recommendation for final disposition, pursuant to 28 U.S.C. § 636(b)(1).
A. BACKGROUND
Plaintiff was born in 1977, graduated from college, and had past work as a buyer and a procurement services manager. Plaintiff filed an application for disability and disability insurance benefits, alleging disability as of May, 2018.
On September 1, 2020, Plaintiff was granted a continued 70% disability by the Veterans Administration based on an “unspecified depressive disorder”. (AR 20 (citing Exh. 16F/1).) That ruling is deemed “inherently neither valuable nor persuasive,” 20 C.F.R. § 404.1520(b(c)(1), and thus need not be analyzed by the ALJ. See Kitchen v. Kijakazi, No. __ F.4th__, 2023 WL 5965704, at *4 (9th Cir. Sept. 14, 2023).
Plaintiff's Application was filed on August 17, 2018, triggering the application of the “new” regulations governing evaluation of medical opinions applicable to post March 27, 2017 applications.
The ALJ found Plaintiff generally qualified for benefits. Although finding no disability under the “Listings,” the ALJ found “severe” impairments of knee dysfunction, depression, post-traumatic stress disorder, and anxiety, and “non-severe” impairments of ankle dysfunction. The ALJ rejected portions of Plaintiff' symptoms testimony, finding it inconsistent with the medical record, and evaluated various medical opinions, and concluded Plaintiff had the following residual functional capacity:
The Appeals Council denied review (AR 1), making the ALJ's decision the decision under review.
In light of the claimant's impairments, the undersigned finds the claimant could perform less than medium work except the claimant can perform simple routine tasks. The claimant can occasionally interact with supervisors, coworkers, and the public. The claimant can tolerate occasional changes in a routine work setting.(AR 23.) Although Plaintiff was unable to perform past work, there were sufficient jobs available, including such things as industrial cleaner, hand packager, and laundry worker II. Consequently, the ALJ concluded Plaintiff was not disabled.
Plaintiff argues the ALJ erred in addressing his mental impairments by:
- Purporting to rely on the findings of an agency examining psychologist, Dr. Lovett, as a basis for finding Bruns was not disabled when Dr. Lovett assessed limitations that would limit Bruns's ability to sustain work activity.
- Rejecting the treating assessments from Drs. Ahmad and Huggins without providing sufficient explanation supported by substantial evidence, including failing to explain the consideration of the supportability and consistency factors under the regulations for evaluation of medical source opinions.
- Rejecting Bruns's symptom testimony in the absence of specific, clear, and convincing reasons supported by substantial evidence in the record as a whole.
Plaintiff contends that if credited as true, the wrongly rejected evidence would establish his disability, and therefore argues for remand for an award of benefits. (Open. Brf., Doc. 19.)
The Commissioner concedes the ALJ committed harmful error in evaluating Plaintiff's symptoms testimony and the medical opinions of Salk, Huggins and Ahmad. However, the Commissioner argues that significant factual conflicts and ambiguities in the record make further proceedings useful, and prevent a conclusion that the discredited evidence would establish disability. Accordingly, the Commissioner asserts remand for further proceedings is the appropriate remedy. (Amend. Ans. Brf., Doc. 30.)
The Court found the Commissioner had improperly filed a Motion to Remand, and Plaintiff had improperly filed a cross-motion to remand, and struck them. The parties were granted leave to amend their briefs. (Order 6/21/23, Doc. 27.) The Commissioner filed his Amended Answering Brief (Doc. 30), and Petitioner adopted (Doc. 32) his original Reply Brief (Doc. 26).
Plaintiff replies that the Commissioner simply wants another bite at the apple on remand, has ignored Plaintiff's argument that Lovettt's opinion was wrongly rejected, and fails to show no disability if the wrongly rejected evidence is credited as true. (Reply Brf., Doc. 26.)
B. APPLICATION OF LAW
There is no question that the decision of the Commissioner must be reversed. The only real question is whether the remand should be for rehearing or an award of benefits. That requires a determination whether the credit-as-true doctrine should apply.
In Garrison, the Ninth Circuit reviewed the three criteria that, if met, warrant application of the credit-as-true doctrine:
(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014).
With regard to the “error” and “disabled” criteria, the Court assumes arguendo harmful error by the ALJ not only on the conceded issues (symptoms testimony, opinions of Salk, Huggins and Ahmad), but on the unaddressed issue of Dr. Lovett's opinions. The Court further assumes arguendo that, if credited as true, the wrongly rejected evidence would require a finding of disability. This leaves the “usefulness” criteria to be considered.
The parties refer to the criteria of the credit-as-true doctrine by the ordinal numbers used in Treichler which identified the second criteria of the Garrison formulation as the “first” question to be resolved, i.e. “ALJ has failed to provide legally sufficient reasons.” 775 F.3d at 1100-1101. The undersigned refers to the three criteria (in Garrison order) by the more descriptive summary names of: (1) “usefulness”; (2) “error”; and (3) “disabled.”
The “usefulness” criteria is not evaluated by crediting the erroneously rejected evidence. The court must “assess whether there are outstanding issues requiring resolution before considering whether to hold that the [wrongly rejected evidence] is credible as a matter of law.” Treichler, 775 F.3d at 1105. See also Dominguez v. Colvin, 808 F.3d 403, 409 (9th Cir. 2015), as amended (Feb. 5, 2016) (treating evidence as true in evaluating usefulness criteria “reverses the required order of analysis”).
Here, the Commissioner argues that there is substantial evidence of non-disability that must be weighed after a proper evaluation of the persuasiveness of the wrongly rejected evidence. In particular, the Commissioner points to:
- Salk's opinion that Huggins' opinions regarding Plaintiff's Personality Assessment Inventory were confusing, and the scores suggested invalidity, and the ALJ had not addressed those issues.
- The record reflects conflicts with Plaintiff' symptoms testimony regarding experiencing flashbacks, and at least partially effective treatment.
- Dalton opined Plaintiff could perform simple and routine work with limitations on interactions.(Amend. Ans. Brf., Doc. 30 at 6-8.)
Plaintiff argues these considerations are not relevant because the ALJ did not rely upon or evaluate them. (Reply Brf. Doc. 26 at 6-7.) But in applying the usefulness criteria Treichler instructs the court to “consider whether the record as a whole is free from conflicts, ambiguities, or gaps, whether all factual issues have been resolved, and whether the claimant's entitlement to benefits is clear under the applicable legal rules.” 775 F.3d at 1103-04. Thus, this evaluation is not a review of the ALJ's decision, nor constrained by issues addressed by the ALJ, nor those raised by the parties. Indeed, limiting the Commissioner or the Court to conflicts already addressed by the ALJ would arguably turn every potential remand into a “mulligan” and thus effectively make remand for an award of benefits the rule rather than the exception.
Plaintiff argues that Salk's opinion should be ignored because Huggins was a treating provider and Salk was not. (Reply Brf., Doc. 26 at 6, n.3.) To support this assertion, Plaintiff relies on Lester v. Chater, 81 F.3d 821 (9th Cir. 1995). The Lester court opined: “The opinion of a nonexamining physician cannot by itself [constitute] substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician.” Id. at 831. But Lester applies the old hierarchical system of evaluating medical opinions. This case was decided under the new standards, which do away with the hierarchy. Under the new system, the Commissioner (and thus this Court) consider all providers' opinions on equal footing, looking primarily at the internal supportability and external consistency of the opinions. See Woods v. Kijakazi, 32 F.4th 785 (9th Cir. 2022) (considering applications filed after March 27, 2017). (AR 44 (Plaintiff's application filed September 19, 2019).) The nature of the professional relationship becomes relevant only after a determination is made that differing opinions are equally credible under the supportability and consistency considerations. See 20 C.F.R. § 404.1520c(b)(1) and (2).
Plaintiff correctly notes that a “useful purpose” is not established by simply giving the ALJ a “mulligan” to evaluate anew the evidence he wrongly rejected. Garrison, 759 F.3d at 1021. (Reply Brf., Doc. 26 at 7.) Rather the court must look to “the record as a whole” and consider such things as whether other evidence conflicts with the wrongly rejected evidence. For example, in Treichler, the Court found the ALJ had wrongly rejected the claimant's symptoms testimony. However, in discussing the “usefulness” criteria, the Court considered the “significant factual conflicts in the record between Treichler's testimony and objective medical evidence.” 775 F.3d at 1104. “Rather, the record raises crucial questions as to the extent of Treichler's impairment given inconsistencies between his testimony and the medical evidence in the record. These are exactly the sort of issues that should be remanded to the agency for further proceedings.” Id. at 1090.
Plaintiff argues that any conflicts based on disparity between reported symptoms and Plaintiff's testimony should be deemed simply a normal waxing and waning of symptoms, and thus any reliance on them would effectively be improper cherry-picking of the record. (Reply Brf., Doc. 26 at 7.) While the disparities may simply be normal waxing and waning, the Court cannot just assume such is the case, nor in this context determine the matter in the first instance, rather than leaving it to the agency to address on remand. “[A] judicial judgment cannot be made to do service for an administrative judgment.” Treichler, 775 F.3d at 1099 (quoting SEC v. Chenery Corp., 318 U.S. 80, 88 (1943)).
Plaintiff argues that simply looking for conflicts in other opinions, which are almost universally present, would effectively preclude the Court from ever making a remand for an award of benefits. (Reply Brf, Doc. 26 at 8.) This is the flipside of Plaintiff's argument that the “usefulness” inquiry should be limited to issues resolved by the ALJ. Contrary to Plaintiff's contention, remands for benefits are granted with some frequency. But it is in those cases where the ALJ has already addressed all of the issues. For example, in this case, if the ALJ had already analyzed the issues raised by the Commissioner, remand for rehearing would amount to nothing more than a mulligan for the ALJ. The fact that the ALJ did not consider these additional matters explains why rehearing is appropriate. See Dominguez v. Colvin, 808 F.3d 403, 409 (9th Cir. 2015), as amended (Feb. 5, 2016) (remand for rehearing appropriate where treating provider's opinion erroneously rejected, where there were unaddressed conflicts between the provider's opinions and treatment records, and conflicting opinions by other providers). To be sure, it is seldom that an ALJ will have already addressed all of the other potential issues in a case. But that is why Treichler described it as “'rare circumstances' that allow us to exercise our discretion to depart from the ordinary remand rule.” 775 F.3d at 1101.
Plaintiff argues there is strong evidence in the record tending to show he has significant impairments that limit his ability to engage in work. (Reply Brf., Doc. 26 at 9.) That is not seriously in dispute. Rather, the issue is, as always, what is the most that Plaintiff can do with the impairments he has. 20 C.F.R. § 404.1545. In that regard, the Court is faced with differing opinions and conflicting facts which have not yet been addressed by the agency.
In sum, considering the record as a whole, there remain factual issues to be resolved before it becomes clear that Plaintiff is entitled to benefits. “Where there is conflicting evidence, and not all essential factual issues have been resolved, a remand for an award of benefits is inappropriate.” Treichler, 775 F.3d at 1101.
C. EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”
D. RECOMMENDATIONS
IT IS THEREFORE RECOMMENDED:
(A) The reference of this matter to the undersigned be WITHDRAWN.
(B) The decision of the Commissioner be REVERSED.
(C) This case be REMANDED for further administrative proceedings as follows:
1. The ALJ must update the record as necessary.
2. The ALJ must offer Plaintiff the opportunity for a new hearing.
3. The ALJ must consider all pertinent issues, including, but not limited to, reconsidering the medical opinion evidence, Plaintiff's symptoms testimony, and Plaintiff's residual functional capacity, and issue a new decision.
(D) The Clerk be directed to enter JUDGMENT accordingly and to close this case.