Opinion
3:20-cv-01020-CL
06-08-2022
DEANNA M.,[1] Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant,
FINDINGS AND RECOMMENDATION
HON. MARK D. CLARKE UNITED STATES MAGISTRATE JUDGE
Deanna M. ("Plaintiff) brings this appeal challenging the Acting Commissioner of the Social Security Administration's ("Commissioner") denial of her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"). This Court has jurisdiction to hear Plaintiff s appeal pursuant to 42 U.S.C. § 405(g) and 1383(c). For the reasons explained below, the Commissioner's decision should be reversed and this case should be remanded for further proceedings.
STANDARD OF REVIEW
The district court may set aside a denial of benefits only if the Commissioner's findings are "'not supported by substantial evidence or based on legal error.'" Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). Substantial evidence is defined as "'more than a mere scintilla [of evidence] but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)).
The district court "cannot affirm the Commissioner's decision 'simply by isolating a specific quantum of supporting evidence.'" Holoham v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). Instead, the district court must consider the entire record, weighing the evidence that both supports and detracts from the, Commissioner's conclusions. Id. Where the record as a whole can support either the grant or denial of Social Security benefits, the district court "'may not substitute [its] judgment for the [Commissioner's].'" Bray, 554 F.3d at 1222 (quoting Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)).
BACKGROUND
I. PLAINTIFF'S APPLICATION
Plaintiff filed her application for DIB on September 26, 2017, alleging disability as of September 22, 2017, due to ankylosing spondylitis, bilateral carpal tunnel syndrome, bilateral de Quervain's syndrome, medial epicondylitis, and trigger finger. (Tr. 196-97, 283.) The Commissioner denied Plaintiffs application initially and upon reconsideration. (Tr. 196-203, 205-14.) Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ"), which was held on April 2, 2019. (Tr. 146-93.) Following the administrative hearing, ALJ Richard Geib issued a written decision dated April 25, 2019, denying Plaintiffs application. (Tr. 128-39.) The Appeals Council denied Plaintiffs request for review, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-4.) Plaintiff now seeks judicial review of that decision.
II. THE SEQUENTIAL PROCESS
A claimant is considered disabled if he or she is unable 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). "Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act." Keyser v. Comm'r Soc, Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Those five steps are: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or equals a listed impairment; (4) whether the claimant can return to any past relevant work; and (5) whether the claimant can perform other work that exists in significant numbers in the national economy. Id. at 724-25.
The claimant bears the burden of proof for the first four steps. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the burden at any of those steps, the claimant is not disabled. Id. at 954. The Commissioner bears the burden of proof at step five of the analysis, where the Commissioner must show the claimant can perform other work that exists in significant numbers in the national economy, "taking into consideration the claimant's residual functional capacity, age, education, and work experience." Tackett, 180 F.3d at 1100. If the Commissioner fails to meet this burden, the claimant is disabled. Bustamante, 262 F.3d at 954.
III. THE ALJ'S DECISION
The ALJ applied the five-step sequential evaluation process to determine if Plaintiff is disabled. (Tr. 130-39.) At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since September 22, 2017. (Tr. 130.) At step two, the ALJ determined that Plaintiff suffered from the following severe impairments: "ankylosing spondylosis [sic]; a history of bilateral carpal tunnel release; trigger finger release; and lumbar degenerative disc disease/degenerative joint disease." (Tr. 130.) At step three, the ALJ concluded that Plaintiff did not have an impairment that meets or equals a listed impairment. (Tr. 131.) The ALJ then concluded that Plaintiff had the residual functional capacity ("RFC") to perform "light work as defined in 20 CFR 404.1567(b)" subject to these limitations: "she can frequently climb ramps and stairs and can never climb ladders, ropes, or scaffolds. She can frequently stoop, kneel, crouch and crawl. She can frequently push and pull as much as she can lift and carry. She can frequently handle and finger bilaterally." (Tr. 131.) At step four, the ALJ concluded that Plaintiff was able to perform her past relevant work as a retail sales clerk, cashier, demonstrator, mixer, and sander. (Tr. 137.) At step five, the ALJ alternatively found that considering Plaintiffs age, education, work experience, and RFC, she could perform jobs that existed in significant numbers in the national economy including: janitorial housekeeping worker and office helper. (Tr. 139.) Accordingly, the ALJ found that Plaintiff was not disabled under the Social Security Act and denied her application for disability benefits. (Tr. 139.)
DISCUSSION
In this appeal, Plaintiff argues that the ALJ erred by: (1) improperly rejecting the medical opinions; (2) improperly rejecting Plaintiffs testimony; (3) improperly rejecting the lay witness statements; and (4) improperly posing the hypothetical question to the vocational expert ("VE"). (Pl.'s Opening Br., ECF No. 16, at 5-13.) As explained below, the court should conclude the Commissioner's decision is not supported by substantial evidence in the record. Accordingly, the court should reverse the Commissioner's decision and remand this case for further proceedings.
I. MEDICAL OPINION EVIDENCE
A. Applicable Law
Plaintiff filed her application in September 2017. (Tr. 283.) "For claims filed on or after March 27, 2017, Federal Regulation 20 C.F.R. 416.920c governs how an ALJ must evaluate medical opinion evidence." Tyrone W. v. Saul, No. 3:19-cv-01719-IM, 2020 WL 6363839, at *6 (D. Or. Oct. 28, 2020) (citation omitted); ".see also Linda F. v. Saul, No. 20-cv-05076-MAT, 2020 WL 6544628, at *2 (W.D. Wash. Nov. 6, 2020) ("Because [the] plaintiff filed her applications after March 27, 2017, new regulations apply to the ALJ's evaluation of medical opinion evidence.").
Under the new regulations, the Commissioner will "no longer give any specific evidentiary weight," let alone controlling weight, "to any medical opinion." See Allen O. v. Comm'r of Soc, Sec, No. 3:19-cv-02080-BR, 2020 WL 6505308, at *5 (D. Or. Nov. 5, 2020) (simplified), aff'd, 2021 WL 5906142 (9th Cir. 2021). Instead, as this court recently explained, "the ALJ considers all medical opinions and evaluates their persuasiveness based on supportability, consistency, relationship with the claimant, specialization, and 'other factors.'" Roberts v. Saul, No. 3:19-cv-01773-SB, 2021 WL 1214518, at *3 (D. Or. Mar. 3, 2021) (simplified).
"The new regulations require ALJs to articulate how persuasive they find all of the medical opinions and explain how they considered the supportability and consistency factors." Id. (simplified). At a minimum, "this appears to necessitate that an ALJ specifically account for the legitimate factors of supportability and consistency in addressing the persuasiveness of a medical opinion." Id. (quoting Linda F, 2020 WL 6544628, at *2). Accordingly, "the more relevant the objective medical evidence and supporting explanations presented and the more consistent with evidence from other sources, the more persuasive a medical opinion or prior finding." Id. (quoting Linda F„ 2020 WL 6544628, at *2).
"The ALJ may but is not required to explain how other factors were considered," including (1) the "relationship with the claimant (length, purpose, and extent of treatment relationship; frequency of examination)," (2) "whether there is an examining relationship," (3) specialization, and (4) "other factors, such as familiarity with other evidence in the claim file or understanding of the Social Security disability program's policies and evidentiary requirements." Id. (quoting Linda F, 2020 WL 6544628, at *2). The ALJ is, however, "required to explain 'how they considered other secondary medical factors [if] they find that two or more medical opinions about the same issue are equally supported and consistent with the record but not identical,'" and courts "must 'continue to consider whether the ALJ's analysis has the support of substantial evidence.'" Id. (citations omitted).
B. Analysis
Plaintiff argues that the ALJ failed to provide legally sufficient reasons for discounting the opinions of Plaintiffs treating hand specialist, Dr. Charles Layman, MD, and treating physician Dr. Brian Greenberg, MD. (Pl.'s Opening Br. at 5-8.)
1. Dr. Layman
Dr. Layman, a treating hand specialist, completed a treating source statement on November 17, 2014. (Tr. 949-52.) Dr. Layman stated Plaintiff had symptoms of bilateral carpal tunnel syndrome, bilateral de Quervain's syndrome, medial epicondylitis, and right middle trigger digit during an appointment on May 13, 2014. (Tr. 949.) Plaintiff had an injection in her wrist on March 25, 2014, by Dr. Combs, and found the experience unpleasant and did not request further injections from Dr. Layman. (Tr. 949.) Dr. Layman notes that Plaintiff had clinical and electrodiagnostic evidence of bilateral carpal tunnel syndrome and clinical evidence of bilateral de Quervain's syndrome, clinical evidence of right middle trigger digit and clinical evidence of right medial epicondylitis. (Tr. 949-50.) On May 28, 2014, Dr. Layman performed release of the first dorsal compartment of her right wrist, a right carpal tunnel release, and a right middle trigger digit release. (Tr. 950.) On July 23, 2014, Dr. Layman performed a left carpal tunnel release and release of the first dorsal compartment of the left wrist. (Tr. 950.) Dr. Layman notes Plaintiff was given a work release to return to work on a limited basis starting September 29, 2014. (Tr. 950.) Dr. Layman notes, on October 1, 2014, Plaintiff contacted his office indicating that her hands had swelled and were painful after working, rolling dough two to three hours per day, and indicated there was no light-duty work available, so she was taken off work at that time. (Tr. 950.) At an October 9, 2014, appointment, Dr. Layman states Plaintiff reported an increase in pain in her hands, including particular pain where she had her trigger finger release in her right hand. (Tr. 950.) Dr. Layman states that if the hand therapist felt that Plaintiff could not perform her light-duty work, he would support that, but otherwise felt "she should try to continue working at the light-duty position." (Tr. 950-51.) Dr. Layman saw Plaintiff on November 17, 2014, where Plaintiff indicated she desired a closing examination. (Tr. 951.) Dr. Layman suggested Plaintiff be seen by the disability prevention group with CareMark Comp, but Dr.
Layman states:
[S]he felt that she did not want to do that and had no interest in pursuing further treatment but only closing her claim and getting on with her life so that she can find work that she can do. She requested that she be limited to four hours per day of the sample work because after four hours she had significant pain in her hands, and indeed she stated she had to go home on November 10, 2014, and November 12,
2014, and November 14, 2014, and November 15, 2014, and November 16, 2014, because she had too much pain in her hands,(Tr. 951.) Regarding Plaintiffs level of impairment at that time, Dr, Layman opined that Plaintiff:
[H]as impairment due to her inability to do sustained repetitive activities with both wrists and hands. She would also have impairment due to her decreased range of motion in both wrists and her decreased range of motion at the PIP and DIP joints of her right middle finger and decreased range of motion in both thumbs.(Tr. 952.) Dr. Layman also opined that Plaintiffs "prognosis is guarded" and is "medically stationary at this time and in need of vocation rehabilitation." (Tr. 952.)
The ALJ addresses Dr. Layman's opinion in two sentences. (Tr. 136.) Specifically, the ALJ found Dr. Layman's opinion "not persuasive" because "it was written approximately three years before the start of the relevant period. Therefore, it does not discuss the claimant's conditions and functioning as of the alleged onset date." (Tr, 136.) "The new regulations require ALJs to articulate how persuasive they find all of the medical opinions and explain how they considered the supportability and consistency factors." Roberts, v. Saul, No. 3:19-cv-01773-SB, 2021 WL 1214518, at *3 (D. Or. Mar, 3, 2021) (simplified). The ALJ does not discuss the supportability and consistency factors and, therefore, the court should find that the ALJ commits legal error.
2. Dr, Green berg
Dr. Greenberg provided a treating source statement discussing Plaintiffs ankylosing spondylitis diagnosis from January 2018. (Tr. 946.) Dr. Greenberg opined:
This condition entails chronic back, hip and pelvis pain along with often debilitating stiffness [in the] morning and after periods of inactivity. While treatments are available, they are associated with measurable risks and [Plaintiff has] chosen to forgo treatment at this point. Without treatment [Plaintiff] can expect ongoing chronic pain that can have intermittent severity day to day. On bad days it may be impossible to work even at a sedentary job. The day to day [sic] severity is often
unpredictable. It may be possible to institute some work accommodation such as a sit stand desk, frequent breaks throughout the day and to avoid any lifting.(Tr. 946.)
The ALJ found Dr. Greenberg's opinion "not persuasive because objective findings do not support complete inability to lift. Even the claimant testified she can lift three or four pounds." (Tr. 135.) Additionally, the ALJ found:
Dr. Greenberg did not provide a clear basis for this limitation. Instead, he stated the claimant has ankylosing spondylitis and has chosen to forego treatment. Because ankylosing spondylitis can affect different people in different ways, it is not obvious that everyone with ankylosing spondylitis is unable to do any lifting. Dr. Greenberg's letter would be more useful in assessing residual functional capacity if it contained specific objective findings that support, for example, inability to perform sedentary work on bad day [sic], a sit/stand option, a need for frequent breaks, or inability to lift an object.(Tr. 135-36.) The ALJ found Dr. Greenberg "offered no objective findings," so the ALJ "sought objective findings from the relevant period that might support his letter." (Tr. 136.) The ALJ stated "[i]maging supports a diagnosis of ankylosing spondylitis." (Tr. 136.) The ALJ further stated that:
Although the MRI confirmed it a month later, ankylosing spondylitis was currently mild enough after the alleged onset date that it was not apparent on x-rays yet. The MRI stating "would appear" suggests that ankylosing spondylitis signs were just beginning to appear on MRI and were not yet visible on x-rays.(Tr. 136 (citing Tr. 481, 754, 773, 928, 945).)
The ALJ further cites to several treatment notes from 2017 and 2018. First, the ALJ cites to a November 13, 2017, treatment note. (Tr. 136.) The ALJ stated the "[examination on November 13, 2017[,] was unremarkable. The back had full range of motion, with no tenderness, palpable spasm, or pain on motion. There was no joint tenderness, deformity, or swelling." (Tr. 136 (citing Tr. 909).) The ALJ then cites a November 20, 2017, treatment note stating the "[examination on November 20, 2017[,] was positive only for tenderness along the cervical and thoracic spine. There was full range of motion of the back." (Tr. 136 (citing Tr. 915).) Next, the ALJ cites a December 6, 2017, treatment note stating,
[e]xamination on December 6, 2017[,] revealed very limit [sic] hip range of motion and inability to rotate. There was no pain with extension, and mild pain with flexion. Right straight leg raise induced pain radiating down entire leg, less so on the left. There is some tenderness to palpation over the SI joints and surrounding soft tissue. Pelvic compression tests was [sic] negative. Gait and strength were normal.(Tr. 136 (citing Tr. 922).) The ALJ then cites a December 20, 2017, treatment note from Dr. Goharbin, MD, where the ALJ notes, Dr. Goharbin "reviewed her latest urine drug screen, which was positive for THC, and diluted. She claimant [sic] admitted to marijuana use. Dr. Goharbin informed her that she cannot use marijuana or alcohol while on OTP. He informed her that another unexpected urine drug screen would terminate her OTP. She verbalized understanding." (Tr. 136 (citing Tr. 925).) Next, the ALJ cites to three 2018 treatment notes stating, on "January 8, 2018[,] physical examination was unremarkable. [] He did not even examine the claimant on January 24, 2018. [] Examination on February 12, 2018[,] was unremarkable." (Tr. 136 (citing Tr. 928, 931, 935) (internal citations omitted).)
After reviewing the objective evidence, the ALJ found:
These1 objective findings do not support the information in Dr. Greenberg's letter. Therefore, there is no basis on which to find his opinion fully persuasive. Parts of his latter [sic] are vague, while other parts are specific. It is not a statement that he [sic] cannot work. The avoidance of heavy lifting is not supported by these objective findings. The claimant does not want to take medications because there is a five percent chance they will cause cancer. This is an acceptable reason for not wanting to take medications.(Tr. 136.)
With respect to Plaintiffs imaging studies assessing her ankylosing spondylitis, the ALJ properly noted Plaintiffs spine x-ray from a December 5, 2017, treatment note found "[n]o evidence of ankylosing spondylitis in the cervical, thoracic, or lumbar spine." (Tr. 477.)
However, the ALJ conflates Plaintiffs spinal imaging with her hip imaging to discount the severity and presence of her ankylosing spondylitis by stating her ankylosing spondylitis was "mild enough" to not appear on her x-rays. However, Plaintiffs pelvis MRI on December 12, 2017, found "[t]he synovial portions of both right and left sacroiliac joints show abnormal contours, serpentine margination, slight interval definition of the subchondral bony cortices, sclerosis, and cortical chronic cystic changes, and would appear to be subtle areas of bony ankylosis." (Tr. 481.) The treatment note also states "[c]hronic bilaterally and symmetric arthropathic appearance of the right left sacroiliac joints, compatible with patient's history of ankylosing spondylitis." (Tr. 481.) The ALJ fails to explain how Plaintiffs spine x-ray relates to the severity of ankylosing spondylitis in Plaintiffs hip MRI. Additionally, the ALJ fails to explain how Plaintiffs objective imaging confirming her ankylosing spondylitis diagnosis is inconsistent with, or unsupported by, Dr. Greenberg's opinion.
The ALJ cites to a number of treatment notes from 2017that predate Plaintiffs December 12, 2017, pelvic MRI to discount Dr. Greenberg's opinion. The ALJ fails to explain how treatment notes predating objective imaging confirming Plaintiffs ankylosing spondylitis is inconsistent with, or unsupported by, Dr. Greenberg's opinion.
Regarding a January 8, 2018, follow-up appointment with Dr. Greenberg, the ALJ states Plaintiffs "physical examination was unremarkable." (Tr. 136 (citing Tr. 928).) The portion of the record the ALJ cites, states Plaintiffs "[c]hronic bilaterally and symmetric arthropathic appearance of the right left sacroiliac joints, compatible with patient's history of ankylosing spondylitis." (Tr. 928.) Furthermore, the same treatment note states "[l]abs and MRI imagine confirm a diagnosis of ankylosing spondylitis." (Tr. 926.) The ALJ fails to explain how the January 8,2018, treatment note is inconsistent with, or unsupported by, Dr. Greenberg's opinion.
At a January 24, 2018, follow-up appointment with Dr. Greenberg, as the ALJ notes, a physical examination was not performed. (Tr. 931.) The ALJ relies on the assertion that there was no physical exam to support finding Dr. Greenberg's opinion unsupported by objective evidence; however, the appointment was for follow-up care to discuss the ankylosing spondylitis treatment "Enbrel (or similar)." (Tr. 930.) Additionally, Dr. Greenberg noted "[h]er symptoms remain unchanged from prior visits." (Tr. 930.) The ALJ fails to explain how the January 24, 2018, treatment note is inconsistent with, or unsupported by, Dr. Greenberg's opinion.
Regarding a February 12, 2018, treatment note from Dr. Goharbin, MD, the ALJ stated the "[examination on February 12, 2018[,] was unremarkable." (Tr. 136 (citing Tr. 935).) However, the February 12, 2018, appointment was a medication review with Dr. Goharbin, where Plaintiffs chronic opioid therapy was switched from hydrocodone to oxycodone. (Tr. 936.) There was no examination at this appointment; however, Dr. Goharbin noted Plaintiff has a "history of ankylosing spondylitis" and a "history of chronic nonmalignantpain." (Tr. 935.) Again, the ALJ fails to explain how the January 24, 2018, treatment note is inconsistent with, or unsupported by, Dr. Greenberg's opinion, The ALJ does not properly discuss the supportability and consistency factors and, therefore, the court should find the ALJ commits legal error.
3. Conclusion
For these reasons, the court should conclude that the ALJ failed to provide clear and convincing reasons, supported by substantial evidence, for discounting the medical opinions of Plaintiffs treating providers, Dr. Layman and Dr. Greenberg.
II. PLAINTIFF'S SYMPTOM TESTIMONY
A. Applicable Law
The Ninth Circuit has "established a two-step analysis for determining the extent to which a claimant's symptom testimony must be credited[,]" Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). "First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment 'which could reasonably be expected to produce the pain or other symptoms alleged.'" Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). Second, '"[i]f the claimant meets the first test and there is no evidence of malingering, the ALJ can only reject the claimant's testimony about the severity of the symptoms if she gives specific, clear and convincing reasons for the rejection,'" Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)).
Clear and convincing reasons for rejecting a claimant's testimony "include conflicting medical evidence, effective medical treatment, medical noncompliance, inconsistencies in the claimant's testimony or between her testimony and her conduct, daily activities inconsistent with the alleged symptoms, and testimony from physicians and third parties about the nature, severity and effect of the symptoms complained of." Bowers v. Astrue, No. 1 l-cv-583-SI, 2012 WL 2401642, at *9 (D. Or. June 25, 2012) (citing Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008), Lingenfelter,. 504 F.3d at 1040, and Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997)).
B. Analysis
There is no evidence of malingering here and the ALJ determined that Plaintiff provided objective medical evidence of underlying impairments which might reasonably produce the symptoms alleged. (See Tr. 132-33, the ALJ determined that Plaintiff s "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record"). The ALJ was therefore required to provide specific, clear, and convincing reasons for discrediting Plaintiffs testimony. See Ghanim, 763 F.3d at 1163. The court should find that the ALJ did not satisfy that standard here.
1. Daily Activities
The ALJ discounted Plaintiffs symptom testimony based on her daily activities. (See Tr. 134-35.) An ALJ may discount a plaintiffs testimony based on activities that are incompatible with the plaintiffs testimony regarding the severity of her symptoms. See Burrell v. Colvin, 775 F.3d 1133, 1137-38 (9th Cir. 2014) ("Inconsistencies between a claimant's testimony and the claimant's reported activities provide a valid reason for an adverse credibility determination."); Garrison, 759 F.3d at 1016 (explaining that a claimant's activities have "bearing on [his or her] credibility" if the reported "level of activity" is "inconsistent with [the claimant's] claimed limitations"); Ghanim, 763 F.3d at 1165 ("Engaging in daily activities that are incompatible with the severity of symptoms alleged can support an adverse credibility determination.").
An ALJ may reject symptom allegations that are inconsistent with a claimant's ability to perform normal activities of daily living. See 20 C.F.R. §§ 404.1529(c)(3)(i), 416.929(c)(3)(i). There are two ways activities of daily living may support such rejection: (1) the activities of daily living contravene the claimant's allegations of functional limitations; or (2) the activities of daily living "meet the threshold for transferrable work skills[.]" Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). "Even where those activities suggest some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent that they contradict claims of a totally disabling impairment." Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012).
However, "disability claimants should not be penalized for attempting to lead normal lives in the face of their limitations," Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998), and "the mere fact that a plaintiff has carried on with certain daily activities, such as grocery shopping .. . does not in any way detract from [her] credibility," Webb v. Barnhart, 433 F.3d 683, 688 (9th Cir. 2005) (citing Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)). In . order to impact a claimant's credibility, the activity has to be "inconsistent with claimant's claimed limitations." Reddick, 157 F.3d at 722. The ALJ cannot mischaracterize statements and documents in the record or take these out of context to reach his conclusion on the claimant's credibility. Id. at 722-23.
Plaintiff argues the ALJ erred in discounting her testimony based on her reported activities. (See PL's Opening Br. at 10, arguing that "[i]t was improper for the ALJ to single out 'a few periods of temporary well-being from a sustained period of impairment' in an attempt to discredit Plaintiff. See [sic] Garrison v. Colvin, 759 F.3d 995 (9th Cir. 2014). Similarly, the activities of daily living cited by the ALJ are not inconsistent with Plaintiffs testimony that she is unable to sit, stand, or walk for long enough, use her hands well enough, or lift enough weight to make it through a typical work day [sic].")
The ALJ cites records from Plaintiffs worker's compensation claim that show Plaintiff had "serious hand injuries in 2014." (Tr. 134.) The ALJ stated:
Despite these injuries, she is not complaining of hand issues in the period from 2017 to 2019. These old records show she had hand injuries at work and went to a doctor. She had surgeries. She settled a worker's compensation claim. She has not complained about her hands much during the relevant period. Use of her hands is sufficient to smoke cigarettes and marijuana, drive a car, perform personal care, prepare meals, shop in stores, and clean her home. Nevertheless, the residual functional capacity includes frequent limits to protect against future injury or reinjury.(Tr. 134.) It is unclear whether the ALJ found Plaintiff did not complain "of hand issues in the period from 2017 to 2019" or, whether Plaintiff "has not complained about her hands much during the relevant period." (See Tr. 134.) In November 2014, Dr. Layman opined that Plaintiffs bilateral carpal tunnel syndrome, bilateral de Quervain's syndrome, right middle trigger digit, and right medial epicondylitis were medically stationary. (Tr. 810-13.) Additionally, Dr. Layman opined that Plaintiff,
has impairment [sic] due to her inability to do sustained repetitive activities with both wrists and hands. She would also have impairment [sic] due to her decreased range of motion in both wrists and her decreased range of motion at the PIP and DIP joints of her right middle finger and decreased range of motion in both thumbs.(Tr. 813.) At the hearing, Plaintiff testified her limitations in lifting were due to both ankylosing spondylitis and hand issues. (Tr. 152-61.)
With respect to Plaintiffs hand use for smoking tobacco and marijuana, although Plaintiff admitted to marijuana use, the record contains no evidence that Plaintiffs THC use derives from smoking marijuana. The record indicates Plaintiff smokes half a pack of cigarettes per day. (See Tr. 40, 45,51, 56, 60, 65, 69, 74, 79, 102, 123, 619.) The ALJ fails to explain how these activities of daily living are inconsistent with Plaintiffs testimony or meet the threshold for transferrable work skills.
The ALJ also notes an October 2014 statement from Plaintiff where she reported an ability to lift her granddaughter. (Tr. 134.) The ALJ also notes that Plaintiff reported an inability to work because her job required lifting 50 pounds frequently and 100 pounds occasionally. (Tr. 134 (citing Tr. 796) (internal citations omitted).) The statement cited by the ALJ comes from a treatment note from Jean Takaesu, OTR/CHT, evaluating Plaintiffs hand and wrist issues. (Tr. 796.) The progress note from Plaintiffs hand therapy states, in relevant part: Plaintiff is "[a]ble to lift grand daughter [sic], but unable to carry her for long due to pain at wrist to hand.
Improved ability to write with limited use of MF. Intermittent pain with writing. Cutting, opening jar, gripping and pinching is difficult due to pain. ... Current Status: Unable to work. Work Tasks: [Plaintiff] needs to be able to lift 50[pounds] frequently and 100[pounds] occasionally." (Tr. 796.)
The disability determination must be based on the record as a whole. Garrison, 759 F.3d at 1009. The ALJ cannot mischaracterize statements and documents in the record or take these out of context to reach his conclusion on the claimant's credibility. Reddick, 157 F,3d at 722-23, The ALJ errs by merely isolating a specific quantum of evidence in support of a non-disability determination. See Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014), See Adeena W. v.. Saul, No. 6:19-CV-00051-SB, 2020 WL 2992191, at *5 (D. Or, June 4, 2020) (noting that ALJs cannot "cherry-pick" from the record to support their findings and "ignore evidence that contradicts [their] findings"). Here, the ALJ mischaracterizes the record where Plaintiff reported being able to lift her granddaughter.to support finding her hand and wrist issues were less severe than alleged, The ALJ also notes that in May 2017, Plaintiff "was taking Norco with no side effects. She was able to do her activities of daily living." (Tr. 134 (citing Tr. 404).) The ALJ cites to Plaintiffs function report, noting Plaintiff reported that,
she can perform personal care, but has her husband help her put on pants and tie shoes during a back flare. She prepares meals daily. [] She spends an hour performing household chores, such as cleaning, without help or encouragement, She tries to go outside every day. She commutes by walking and driving. She can go out alone. She spends two to four hours every week shopping in stores for food. [] Her hobby is "being out in nature," She does this activity twice a month. She spends time with others every day.(Tr. 134-35 (citing Tr. 338-40) (internal citations omitted).) The ALJ found "[f]his evidence shows she continues to do activities of daily living and some recreational activities. Her ability to continue to perform activities of daily living does not indicate a dramatic decline in functioning from May 2017, before the alleged onset date," (Tr. 135.)
As previously noted, "disability claimants should not be penalized for attempting to lead normal lives in the face of their limitations," Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998), and "the mere fact that a plaintiff has carried on with certain daily activities, such as grocery shopping .., does not in any way detract from [her] credibility," Webb v. Barnhart, 433 F.3d 683, 688 (9th Cir. 2005) (citing Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)). In order to impact a claimant's credibility, the activity has to be "inconsistent with claimant's claimed limitations." Reddick, 157 F.3d at 722. The ALJ fails to explain how Plaintiffs activities of daily living are inconsistent with her subjective symptom testimony. The ALJ's statement that Plaintiffs "ability to continue to perform activities of daily living does not indicate a dramatic decline in functioning from May 2017," is not a legally sufficient reason to discount Plaintiffs subjective symptom testimony.
Additionally, the ALJ cannot mischaracterize statements and documents in the record or take these out of context to reach his conclusion on the claimant's credibility. Reddick, 157 F.3d at 722-23. The ALJ also cites a statement Plaintiff made to Dr. Dela Cruz that "her brother has ankylosing spondylitis, much more severe than hers." (Tr. 135 (citing Tr. 401).) The ALJ uses this statement as evidence that Plaintiffs condition is less severe than her subjective symptom testimony. (Tr. 135.) Thus, the court should find The ALJ fails to provide legally sufficient reasons to discount Plaintiffs subjective symptom testimony.
2. Objective Medical Evidence
The ALJ also discounted Plaintiffs symptom testimony based on contradictory medical evidence. The ALJ cites a comment Plaintiff made to her provider in March 2017, which
indicates she was lifting heavy boxes. In March 2017, the claimant presented to Jessica Lieu, PA complaining of an ongoing flare of ankylosing spondylitis. The claimant told Ms. Lieu the flare might have been caused by lifting heavy boxes at work. Pain in the lower back was usually 4/10. At worst, it would rise to 8/10. She had run out of Norco and was request [sic] larger quantity pain medications.(Tr. 134 (citing Tr. 405).)
The ALJ also notes Plaintiffs testimony that "she can now lift no more than three or four pounds." (Tr. 134.) The ALJ noted,
[he] searched the medical record for evidence to explain this dramatic decrease in functioning over a two-year period. This search proved unfruitful. The evidence does not support an ability to lift no more than three or four pounds. In this respect, the claimant's testimony is not consistent with the evidence of record.(Tr. 134.)
The Ninth Circuit has held that it is appropriate to discount a claimant's testimony based on inconsistencies with, among other things, "the objective medical evidencef.]" Eblen v. Saul, 811 Fed.Appx. 417, 420 (9th Cir. 2020) (citing Tommasetti, 533 F.3d at 1039). However, an ALJ may not reject a claimant's pain testimony merely because the testimony appears disproportionate to the objective medical evidence. See Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) ("[A]n ALJ may not reject a claimant's subjective complaints based solely on a lack of medical evidence to fully corroborate the alleged severity of pain."). Even if the objective medical evidence is inconsistent with Plaintiffs proffered symptoms, the ALJ may not rely on a lack of objective medical evidence as the sole reason to discredit her testimony. See Taylor v. Berryhill, 720 Fed.Appx. 907, 907 (9th Cir, 2018) (explaining that a "lack of objective medical evidence cannot be the sole reason to discredit claimant's testimony," and therefore holding that the ALJ failed to provide clear and convincing reasons for discounting the claimant's testimony) (citation omitted).
Here, the ALJ's other reason for rejecting Plaintiffs testimony-activities of daily living-was legally insufficient; therefore, a mere lack of objective support, without more, is insufficient to reject Plaintiffs testimony. Accordingly, the court should find that the ALJ erred in discounting Plaintiffs testimony. Cf. Heltzel v. Comm 'r of Soc. Sec. Admin., No. 19-1287, 2020 WL 914523, at *4 (D. Ariz. Feb. 26, 2020) ("Because the ALJ's other reasons for rejecting Plaintiffs testimony were legally insufficient, a mere lack of objective support, without more, is insufficient to reject Plaintiffs testimony.").
3. Conclusion
For these reasons, the court should conclude that the ALJ failed to provide clear and convincing reasons, supported by substantial evidence, for discounting Plaintiffs symptom testimony.
III. LAY WITNESS TESTIMONY
A. Applicable Law
An ALJ '"must consider lay witness testimony concerning a claimant's ability to work.'" Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (quoting Stout v. Comm V Soc. Sec. Admin., 454 F,3d 1050, 1053 (9th Cir. 2006)). "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." Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017) (simplified). The ALJ cannot disregard such testimony without providing reasons that are '"germane to each witness.'" Stout, 454 F.3d at 1056 (citations omitted). "Inconsistency with medical evidence is one such reason." Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). "Germane reasons for rejecting a lay witness' testimony [also] include inconsistencies between that testimony and the claimant's presentation to treating physicians or the claimant's activities, and the claimant's failure to participate in prescribed treatment." Barber v. As true, No. 1:10-cv-1432-AWI-SKO, 2012 WL 458076, at *21 (E.D. Cal. Feb. 10, 2012), Furthermore, "when an ALJ provides clear and convincing reasons for rejecting the credibility of a claimant's own subjective complaints, and the lay-witness testimony is similar to the claimant's complaints, it follows that the ALJ gives 'germane reasons for rejecting' the lay testimony." Williams v, Astrue, 493 Fed.Appx. 866, 869 (9th Cir. 2012) (quoting Valentine v. Comm V Soc. Sec, Admin., 574 F.3d 685, 694 (9th Cir. 2009)).
B. Analysis
Plaintiff argues that the ALJ failed to provide germane reasons for discounting the lay witness testimony provided by Plaintiffs husband, Shannon M., Plaintiffs sibling, Sureese F., and Plaintiffs daughters, Kayla M., Tosha M., and Ashley M. (Pl.'s Opening Br. at 11-12.)
The ALJ addressed the testimony of Plaintiff s sibling and Plaintiffs daughters stating:
The claimant's sister stated the claimant is in serious pain every day. She has trouble with chores. She is limited in what she can do, [] One of the claimant's daughters noted the claimant has symptoms of ankylosing spondylitis that affect her ability to work. [] Another daughter stated the claimant experiences pain. Symptoms affect her daily. Sometimes she is incapable of moving and must stay on the couch or in bed for days. Any physical activity leaves her physically disabled for days, [] Another daughter noted difficulty walking because of pain. After so long of standing or walking, she ends up in extreme pain to where she is unable to move. She has to worry about carrying in groceries or moving things around the house. Bending over to tie her shoes is a struggle.(Tr, 136-37 (citing Tr. 390-93) (internal citations omitted).) The ALJ found the lay witness statements "not fully persuasive because there is no indication anywhere in the medical records that the claimant's symptoms result in inability to move. There are not treatment notes documenting her being physically disabled for days." (Tr. 137.) The ALJ fails to give germane reasons supported by substantial evidence to discount the lay opinions of Plaintiff s sibling and daughters. (See Tr. 481, 946.)
The ALJ then addressed the testimony of Plaintiff s husband stating "the claimant's husband stated she can barely walk or stand some days. She cannot carry a laundry basket or a bag of groceries. Pain disrupts sleep. She has diminished hand strength. Symptoms persist despite various forms of treatment." (Tr. i 37 (citing Tr. 386-87).) The ALJ found:
This statement is not fully persuasive because there are no medical findings to support inability to carry a bag of food. Treatment notes do not indicate there are day [sic] on which she can barely walk or stand. The husband's statement might be accurate. However, without corroboration in the record, his words alone are not entirely persuasive.(Tr. 137.) The ALJ fails to give germane reasons supported by substantial evidence to discount the lay opinion of Plaintiff s husband. (See Tr. 481, 946.)
Therefore, the court should find the ALJ improperly discounted the lay witness testimony.
IV. HYPOTHETICAL QUESTION TO THE VE
The ALJ determined Plaintiff has the RFC to perform less than the full range of light work as defined in 20 CFR 404.1567(b). (Tr. 131.) Plaintiff argues "in posing his hypothetical questions to the vocational expert, the ALJ omitted Plaintiffs credible allegations and those of the five lay witnesses. The ALJ also omitted the limitations assessed by Plaintiffs treating providers." (Pl.'s Opening Br. at 13.) The Commissioner responds that the ALJ's hypothetical question to the VE was supported by substantial evidence. (Def.'s Br., ECF No. 17, at 11.)
A. Applicable Law
The VE may be called to testify at the ALJ hearing in order to identify occupations listed in the Dictionary of Occupational Titles ("DOT") that the claimant retains the capacity to perform given their RFC and vocational factors. Valentine, 574 F.3d at 689. Such testimony may cover the claimant's ability to do past relevant work or to perform other work in the national economy, or both.
In order to have sufficient evidentiary value, the dispositive hypothetical question posed to the VE must include all of the limitations, which are supported by substantial evidence in the record, and which the ALJ has explicitly "accepted," usually as set forth in the RFC. Cooper v. Sullivan, 880 F.2d 1152, 1158 n, 13 (9th Cir. 1989); Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008); see also Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988) (citing Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984).
The RFC is the most a person can do, despite her physical or mental impairments. 20 C.F.R. § 404.1545. In formulating an RFC, the ALJ must consider all medically determinable impairments, including those that are not "severe," and evaluate "all of the relevant medical and other evidence," including the claimant's testimony. Id.; SSR 96-8p, available at 1996 WL 374184. In determining a claimant's RFC, the ALJ is responsible for resolving conflicts in the medical testimony and translating the claimant's impairments into concrete functional limitations. See Stubbs-Danielson, 539 F.3d at 1174-75 (affirming the ALJ's translation of moderate functional limitations into the claimant's RFC).
"Only limitations supported by substantial evidence must be incorporated into the RFC and, by extension, the dispositive hypothetical question posed to the VE." Leroy M. v. Comm 'r, Soc. Sec. Admin., No. 6:18-cv-0632-HZ, 2019 WL 4276996, at *6 (D. Or. Sept. 10, 2019) (quoting Rhinehart v. Colvin, No. 2:15-cv-01704-AC, 2016 WL 7235680, at *12 (D. Or. Dec. 12, 2016) and citing Osenbrock v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001)).
B. Analysis
Plaintiff argues, the ALJ, "in posing his hypothetical questions to the vocational expert.., omitted Plaintiffs credible allegations and those of the five lay witnesses. The ALJ also omitted the limitations assessed by Plaintiffs treating providers." (Pl.'s Opening Br. at 13.)
Only limitations supported by substantial evidence must be incorporated into the RFC and, by extension, the dispositive hypothetical question posed to the VE. As discussed above, the ALJ improperly discounted Plaintiffs medical opinion evidence, subjective testimony, and lay witness testimony. Therefore, the court should find the ALJ erred in the dispositive hypothetical question posed to the VE.
V. REMEDY
A reviewing court has discretion to remand an action for further proceedings or for a finding of disability and an immediate award of benefits. See, e.g., Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985). Whether an action is remanded for an award of benefits or for further proceedings depends on the likely utility of additional proceedings. Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000). In determining whether an award of benefits is warranted, the court conducts the "three-part credit-as-true" analysis. Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Under this analysis the court considers whether: (1) the ALJ has failed to provide legally sufficient reasons for rejecting evidence; (2) the record has been fully developed and further proceedings would serve no useful purpose; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015). Even where all the requisites are met, however, a court may still remand for further proceedings "when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled[.]" Garrison, 759 F.3d at 1021. "Serious doubt" can arise when there are "inconsistencies between the claimant's testimony and the medical evidence," or if the Commissioner "has pointed to evidence in the record the ALJ overlooked and explained how that evidence casts serious doubt" on whether the claimant is disabled under the Act. Dominguez, 808 F.3d at 407 (citing Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014) (internal quotation marks omitted)). Additionally, the Ninth Circuit has refused to remand for a finding of disability where the record contained conflicting medical opinions about a claimant's limitations. Id. at 409. Therefore, "[u]nless the district court concludes that further administrative proceedings would serve no useful purpose, it may not remand with a direction to provide benefits," Id. at 407.
As discussed above, the court should find the ALJ failed to provide legally sufficient reasons for rejecting evidence; therefore, the first element of the "three-part credit-as-true" analysis is satisfied. With respect to the second element, the Commissioner argues "there are factual issues that only the agency can resolve on remand." (Def.'s Br. at 12.)
In support of this assertion, the Commissioner argues "Dr. Greenberg's opinion is vague, at best, and does not clearly support a finding of disability. Dr. Layman's opinion assessed limitations in 2014, after which [Plaintiff] worked at many jobs. At most, [Plaintiff] has established the need for clarification or further medical evaluation." (Def.'s Br. at 12.)
With respect to Dr. Greenberg's opinion regarding Plaintiffs ankylosing spondylitis, the statement provides an overview of the condition, and the symptoms Plaintiff can expect, including "chronic back, hip and pelvis pain along with often debilitating stiffness in the morning and after periods of inactivity." (Tr. 946.) Dr. Greenberg also specifically notes the intermittent, unpredictable severity of ankylosing spondylitis and "[o]n bad days it may be impossible to work even at a sedentary job." (Tr. 946.) The record is unclear about Plaintiffs current impairments from ankylosing spondylitis, for example, how often she has "bad days" and her specific impairments on "bad days." Additionally, there are inconsistencies in the record regarding Plaintiffs ability to walk. Specifically, in her function report, Plaintiff noted she walks and drives a car when going out, performs personal care, prepare meals, shop in stores, and cleans her home. (Tr. 337-43.) However, at the hearing, Plaintiff testified "lately, it's just been I just circle around the couch. I'm just exhausted and I'm in pain and I don't really go anywhere." (Tr. 151.) Plaintiff also testified:
A usual day looks like I get up in the morning and I eat breakfast. I sit on the couch while I'm eating breakfast, go into the kitchen, maybe try and do, you know, a couple dishes. I don't get through a full sink of dishes. I've got to wash a couple and then go sit back down, and so I usually just stay at home because I don't want to go too far from the couch because I have to lay on the couch. I get exhausted, so my day is pretty much surrounded in the house and around the couch.(Tr. 163.) Additionally, an August 8, 2014, progress note from Dr. Greenberg states "[p]ainful to walk." (Tr. 649.) Plaintiffs husband stated, "there are days when she can barely walk or stand." (Tr. 386.) Plaintiffs daughter Tosha M. stated "[t]his disease is so bad that I have seen my mom on the couch or in bed for days because she can't physically move. I have noticed with the older she is getting the more physically it has taken a tole [sic] on her." (Tr. 392.) Plaintiffs daughter Ashley M. stated "[a]fter so long of standing or walking she ends up in extreme pain to where she is unable to move." (Tr. 393.) However, the record also contains instances where Plaintiff was able to ambulate normally. (See Tr. 600, 625, 701.)
In assessing whether Plaintiff met the listing for ankylosing spondylitis the ALJ stated:
The severity of the claimant's ankylosing spondylitis does not meet or medically equal listing 1.02 (Major dysfunction of a joint(s) (due to any cause)). To meet this listing, the claimant's impairment must be characterized by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s). In addition, the impairment must involve either one major peripheral weight bearing joint (i.e., hip, knee, or ankle) and result in inability to ambulate effectively, or one major peripheral joint in each upper extremity (i.e., shoulder, elbow, or wrist-hand) and result in inability to perform fine and gross movements effectively.(Tr. 131.) As discussed above, Plaintiffs medical record is consistent with a gross anatomical deformity-bony ankylosis-in Plaintiffs hip and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint, and findings on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint. (See Tr. 465-66, 470, 477, 479-80, 481, 748; see also Tr. 404, 494, 512, 521, 559, 610, 644, 650, 717, 718.) However, there is ambiguity in the record if her ankylosing spondylitis "result[s] in inability to ambulate effectively." This ambiguity should be addressed in further proceedings.
With respect to Plaintiffs carpal tunnel, the ALJ highlights during the hearing that Plaintiff does not appear to seek treatment for her hand and wrist issues during the relevant period. (Tr. 188-90.) Plaintiff responds that her carpal tunnel treatment entails taking pain medication daily and that she has not sought additional treatment for her hands because her doctors will prescribe pain medication or surgery, and she does not want any additional surgeries. (Tr. 189-90.) There is ambiguity in the record regarding Plaintiffs current hand and wrist limitations.
After Plaintiffs July 23, 2014, left carpal tunnel release and release of the first dorsal compartment of the left wrist, Plaintiff was then seen by Dr. Layman on August 7, 2014, where:
Her splint and sutures were removed, and she was started on post carpal tunnel strengthening and desensitization. She felt that she was getting close to the point that she could go back to her work, and she indicated the desire to try some hand therapy to see if they could desensitize her. She next was seen on September ] 1, 2014. She had started working with a hand therapist, and she was improving, but her hand therapist felt that she would not really be ready to work until another month. The patient indicated the desire to go back to work sooner than that and desired to go back on a limited basis starting on September 29, 2014, and try to do two to three hours a day of rolling dough and the balance of the day doing non-line activity. She was given a work release to that effect.(Tr. 811.) Dr. Layman further stated:
The patient then returned to the office on November 17, 2014, indicating that she desired to have a closing examination. At that time we talked about the potential for her getting some improvement in her hands, and I felt that it might be worthwhile having her be seen by the disability prevention group with CareMark Comp, but she felt that she did not want to do that and had no interest in pursuing further treatment but only closing her claim and getting on with her life so that she
can find work that she can do. She requested that she be limited to four hours per day of the sample work because after four hours she had significant pain in her hands, and indeed she stated she had to go home on November 10, 2014, and November 12, 2014, and November 14, 2014, and November 15, 2014, and November 16, 2014, because she had too much pain in her hands.(Tr. 812.)
It is unclear whether Plaintiffs hand and wrist issues are "medically stationary" because she declined additional vocational rehabilitation, or whether she returned to work prematurely, or whether her condition cannot improve with additional rehabilitation, or surgery. This issue should be addressed in further proceedings.
It is also unclear why the ALJ included a statement that "[t]he claimant has taken Percocet for pain. However, due to repetitive infractions in her pain contract, she had to be weaned off Percocet. [] There were repetitive infractions in urine drug screen showing marijuana." (Tr. 134 (citing Tr. 908-09) (internal citations omitted).) The progress note cited by the ALJ from a November 13, 2017, appointment with Dr. Dela Cruz states "[t]he patient was previously on Percocet to help control her pain, but due to repetitive infractions in her pain contract, had to be weaned off the medication," (Tr. 908.) However, a treatment note from a medication review on February 12, 2018, with Dr. Goharbin, indicates Plaintiff was prescribed Percocet. (Tr. 936.) This ambiguity should be resolved in further proceedings.
Therefore, the court should find the second element in the "three-part credit-as-true" analysis is not satisfied. The Ninth Circuit has held that remanding for proceedings rather than for an immediate payment of benefits serves a useful purpose where "the record has [not] been fully developed [and] there is a need to resolve conflicts and ambiguities." Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) (internal quotations and citations omitted). Here, the court should find the record sufficiently ambiguous, making remanding for an immediate payment of benefits inappropriate. Accordingly, this case should be remanded for further administrative proceedings to: (1) grant the claimant a new hearing, (2) reconsider all medical and testimonial evidence, (3) provide further reasoning regarding the persuasiveness and supportability of all medical opinions, (4) reconsider the lay witness testimony, and (5) take any further action necessary to complete the administrative record, and issue a new decision. See Burrell v, Colvin, 75 F,3d 1133, 1141 (9th Cir, 2014).
RECOMMENDATION
For the reasons above, the Commissioner's decision should be reversed and this case should be remanded for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
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 or appealable order.
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 shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute waiver of a party's right to appellate review of the findings of fact in an order or Judgment entered pursuant to this recommendation.