Opinion
CV-21-08147-PCT-DLR (JZB)
08-02-2023
Bobbie Joann Harris, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT & RECOMMENDATION
Honorable John Z. Boyle, United States Magistrate Judge
TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE:
Plaintiff Bobbie Joann Harris seeks review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security (“the Commissioner”), which denied her disability benefits and supplemental security income under sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. Because the decision of the Administrative Law Judge (“ALJ”) is not supported by substantial evidence and contains legal error as to Plaintiff's symptom testimony, the Court will recommend that the Commissioner's decision be reversed and the matter be remanded for award of benefits.
I. Background.
On April 10, 2017, Plaintiff applied for disability insurance benefits, alleging disability beginning on November 28, 2016. (AR 17.) On December 4, 2019, she appeared with her attorney and testified at a hearing before the ALJ. (AR 17.) A vocational expert also testified by audio feed at the hearing. On January 30, 2020, the ALJ issued a decision holding that Plaintiff was not disabled within the meaning of the Social Security Act. (AR 14.) On August 12, 2021, the Appeals Council denied Plaintiff's request for review of the hearing decision, making the ALJ's decision the Commissioner's final decision. (AR 1.)
II. Legal Standard.
The district court reviews only those issues raised by the party challenging the ALJ's decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court may set aside the Commissioner's disability determination only if the determination is not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a preponderance, and relevant evidence that a reasonable person might accept as adequate to support a conclusion considering the record as a whole. Id. In determining whether substantial evidence supports a decision, the court must consider the record as a whole and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. As a general rule, “[w]here the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted).
Harmless error principles apply in the Social Security Act context. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless if there remains substantial evidence supporting the ALJ's decision, and the error does not affect the ultimate nondisability determination. Id. The claimant usually bears the burden of showing that an error is harmful. Id. at 1111.
The ALJ is responsible for resolving conflicts in medical testimony, determining credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). In reviewing the ALJ's reasoning, the court is “not deprived of [its] faculties for drawing specific and legitimate inferences from the ALJ's opinion.” Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989).
III. The ALJ's Five-Step Evaluation Process.
To determine whether a claimant is disabled for purposes of the Social Security Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of proof on the first four steps, but at step five, the burden shifts to the Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
At the first step, the ALJ determines whether the claimant is engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant has a “severe” medically determinable physical or mental impairment. § 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step three, the ALJ considers whether the claimant's impairment or combination of impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the claimant's residual functional capacity (“RFC”) and determines whether the claimant is still capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, where he determines whether the claimant can perform any other work based on the claimant's RFC, age, education, and work experience. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled. Id.
At step one, the ALJ found that Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2021, and that she has not engaged in substantial gainful activity since the alleged onset date November 28, 2016. At step two, the ALJ found that Plaintiff has the following severe impairments: “right below knee amputation and pulmonary embolism.” At step three, the ALJ determined that claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Pt. 404. At step four, the ALJ found that Plaintiff has the RFC to perform:
A wide range of sedentary work, except she can occasionally balance, stoop, and crouch, but never kneel, crawl, or climb. She can have occasional exposure to extreme old, extreme eat, and wetness, but no exposure to moving mechanical parts or unprotected heights. Finally, the claimant can
never operate a motor vehicle.(AR 22.) The ALJ further found that Plaintiff is unable to perform any past relevant work. (AR 25.)
However, at step five, the ALJ concluded that “considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a))[,]” and “a finding of ‘not disabled' is therefore appropriate under the framework of the above cited rule.” (AR 26-27.)
IV. Analysis.
Here, Plaintiff argues the ALJ's decision is defective for two reasons: (1) the ALJ erred in rejecting Plaintiff's symptom testimony; and (2) the ALJ erred by determining Plaintiff's work capacities without support based on substantial evidence in the record. (Doc. 24.) The Court will address each argument.
A. Symptom Testimony.
First, Plaintiff contends that the ALJ erred in rejecting Plaintiff's symptom testimony in the absence of clear and convincing reasons supported by substantial evidence in the record. In response, the Commissioner asserts that ALJ's decision to discount Plaintiff's symptom testimony was based on inconsistencies within the testimony, and thus the Court should affirm the ALJ's decision.
In evaluating the credibility of a claimant's testimony regarding subjective pain or other symptoms, the ALJ is required to engage in a two-step analysis: (1) determine whether the claimant presented objective medical evidence of an impairment that could reasonably be expected to produce some degree of the pain or other symptoms alleged; and, if so with no evidence of malingering, (2) reject the claimant's testimony about the severity of the symptoms only by giving specific, clear, and convincing reasons for the rejection. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “This is not an easy requirement to meet: ‘The clear and convincing standard is the most demanding required in Social Security cases.'” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (citing Moore v. Comm r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).
At step one, the ALJ found that Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms.” (AR 23.) At step two, the ALJ found that Plaintiff's “statements concerning the intensity, persistence, and limiting effects of the symptoms” are inconsistent with the evidence in the record and the residual and functional capacity assessment. Id. In other words, the ALJ found Plaintiff's statements not credible to the extent she claims she is unable to perform in a competitive work environment.
1. Plaintiff's Symptom Testimony.
At the hearing, Plaintiff testified to the following facts. (AR 52-91.) On November 28, 2016, Plaintiff was involved in a head-on motor vehicle crash that resulted in numerous fractures (including to her right hip, right ankle, left clavicle, lumbar vertebra, metacarpal of the left hand), a pulmonary embolism, dissection of her thoracic aorta, adrenal hemorrhage, and septic arthritis at her right ankle/foot. (See AR 62, 396, 408.) Plaintiff was hospitalized for more than a month following her accident, through December 29, 2016, during which time she received multiple surgeries and treatments for her conditions. (See AR 396-398, 408-410.) Shortly after being released from the hospital, Plaintiff was hospitalized a second time for an infection at the surgical site in her right ankle. (AR 1830.) Attempts to treat the infection were unsuccessful and Plaintiff's right leg was amputated below the knee. (AR 1830.)
Plaintiff testified that two weeks before her accident, Plaintiff worked as a cleaner at an apartment complex. (AR 63.) Before that, Plaintiff had worked multiple jobs, including as a restaurant manager, a caregiver, and a medical assistant. (AR 62-65.) Plaintiff has neither held, nor applied, for any jobs since the date of her accident. (AR 62.) Since her accident, Plaintiff has been taking oxycodone and ibuprofen for the pain associated with her injuries. (See AR 72.) Additionally, Plaintiff's primary care physician prescribes medication for Plaintiff's depression. (AR 70.) This medication makes Plaintiff drowsy, but Plaintiff is only able to sleep, on average, three to four hours a night due to nightmares. (AR 71-72.) Plaintiff also sleeps during the day for approximately “an hour and a half” before lunch, and “after lunch to about dinner, maybe two hours.” (AR 72.)
Plaintiff utilizes a wheelchair daily and can walk with her prosthesis for “maybe about 15 minutes a day.” (AR 65-66.) Plaintiff has a prosthesis but has issues with pain from skin breakdown and pressure. (AR 67.) Plaintiff has experienced problems after her initial amputation. (AR 74.) Specifically, since amputation, Plaintiff has had three different prosthetic legs because of fitting issues and has required two revisions of the stump. (AR 74.) The prosthesis causes Plaintiff pain while sitting and standing. (AR 76.) Plaintiff further asserts she can only wear her prosthesis for 15 minutes and can put it back on four to six hours later. (AR 67-68). Plaintiff claims the pain impacts her ability to concentrate. (AR 77.) During the day, Plaintiff often lies down and elevates her leg to attain relief. (AR 79.)
Plaintiff lives with her adult daughter in a mobile home. (AR 60.) The mobile home is built to accommodate Plaintiff's wheelchair. (AR 65.) Plaintiff, with difficulty, can dress, shower, and use the bathroom, but a significant amount of housework is performed by her daughter. (AR 66.) Plaintiff's housework is limited to microwaving meals and washing dishes for five to ten minutes. (AR 66.) Plaintiff requires her daughter's assistance to grocery shop because Plaintiff does not drive and needs help to get out of a car. (AR 6667.) Plaintiff has her driver's license, but she is scared to drive and has not driven since her accident. (AR 67.)
Plaintiff asserts that she has not financially recovered from her accident, and her daughter has been her source of support since she stopped working. (AR 78.) Additionally, Plaintiff receives food stamps and Medicaid through AHCCCS. (AR 78.)
2. ALJ's Reasons for Discounting Plaintiff's Testimony.
In his decision, the ALJ discounted Plaintiff's symptom testimony, finding that Plaintiff's “statements concerning the intensity, persistence, and limiting effects of [her] symptoms are not entirely consistent with the medical evidence and other evidence in the record.” (AR 23.) Specifically, the ALJ provided two reasons for his decision to discount Plaintiff's symptom testimony: (1) “the longitudinal record does not document notable objective findings or other evidence throughout [Plaintiff's] treatment history that would support the degree of limitation [Plaintiff] has alleged;” and (2) Plaintiff described daily activities “are not limited to the extent one would expect, given the complaints of disabling symptoms and limitations.” (AR 23-24.)
The Court finds that neither reason provided by the ALJ is clear and convincing and supported by substantial evidence.
a. Longitudinal Record.
An ALJ must evaluate whether the claimant has presented objective medical evidence of an impairment that “could reasonably be expected to produce the pain or symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (citations omitted). In evaluating a claimant's pain testimony after a claimant produces objective medical evidence of an underlying impairment, “an 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.” Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). See also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“the Commissioner may not discredit the claimant's testimony as to the severity of symproms merely because they are unsupported by objective medical evidence.”). However, the ALJ may “reject the claimant's testimony about the severity of [the] symptoms” by “providing specific, clear, and convincing reasons for doing so.” Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015).
The ALJ's first reason for discounting Plaintiff's symptom testimony was that “the longitudinal record does not document notable objective findings or other evidence throughout Plaintiff's treatment history that would support the degree of limitation [Plaintiff] has alleged.” (AR 23.) In his decision, the ALJ noted that Plaintiff was injured in a severe motor vehicle accident in 2016. (AR 23.) Plaintiff received hospital care for six weeks and was discharged to a nursing facility for physical therapy. (AR 23.) The ALJ cited to some physician notes that reveal Plaintiff has suffered from ongoing pain and skin breakdown on her amputated stump, but that Plaintiff has become more active since receiving a stump revision in September 2018 and a new prosthesis in November 2019. (AR 23-24.) The ALJ also found that the record shows Plaintiff can walk with a gait without any type of assistive walking device, and opined that Plaintiff's wheelchair use does not appear medically necessary. (AR 23.)
Plaintiff argues that the ALJ has failed to explain how Plaintiff's treatment history does not support Plaintiff's reported symptoms. (Doc 24 at 16.) Specifically, Plaintiff contends that the ALJ recounted “the significant injuries and surgeries that Harris suffered as a result of the November 2016 motor vehicle crash, including the below the knee amputation of Harris's right leg, and the recurrent infections and skin breakdown at the stump that required additional surgery[,]” but then “failed to explain how Harris's significant treatment history . . . did not support Harris's reported symptoms.” (Id. at 1516.) The Court agrees.
Here, the record contains several notable objective findings and other evidence throughout Plaintiff's treatment history that supports the degree of limitation Plaintiff alleges. (See, e.g., AR 396-98, 408, 466-77 (documenting fractures of the right hip, right ankle, left clavicle, lumbar vertebra, left hand, a pulmonary embolism, dissection of thoracic aorta, adrenal hemorrhage, and septic arthritis of the right ankle); 400, 432-33, 445-48, 507-19 (documenting several surgeries resulting from Plaintiff's injuries including open reduction and internal fixation at her right ankle, right hip, and left clavicle); 424, 521-31, 725-28, 796-800, 816-20, 850-68, 884-89, 905-10, 930-35 (documenting treatment required following a postoperative wound infection in Plaintiff's right ankle, including debriding, draining, and placement of a wound vac).) While the ALJ summarized Plaintiff's medical records that extensively document the ongoing issues Plaintiff has endured, the ALJ provides no explanation for his conclusion that those records do not support Plaintiff's reported symptoms. (See AR 23-24.)
Instead, the ALJ discounts Plaintiff's symptom testimony because Plaintiff's ability “to walk without the use of an assistive device while wearing the prosthesis[,]” and “her activities of daily living noted below, show the claimant is capable of only sedentary work with the restrictive postural noted in the residual functional capacity.” (AR 23-24) And while the ALJ acknowledged that Plaintiff has experienced ongoing complications with her prosthetic leg, he discounts those records supporting Plaintiff's testimony because one record from November 2019 states that Plaintiff had become more active with a recent prosthesis. (AR 24 (citing AR 2106).) But the ALJ misrepresents that report, which states:
prior to her most recent prosthetic fitting she had difficulty doing everyday tasks due to alignment issues and skin breakdown/comfort issues. She is now more active than prior but still occasionally runs into difficulties as a result of the significant varicose veins and excessive skin that allows play in her prosthesis. She will potentially be consulting with a surgeon for additional revision to rectify her limb.(AR 2106 (emphasis added).) The ALJ provides a vague description of Plaintiff's improved prosthesis, but ignores the fact that Plaintiff still suffered from significant issues that would potentially require further corrective surgery. The medical record does not continue past November 2019, and the ALJ's decision issued less than two months later, in January 2020. Nothing in the medical record states that the improvement with the new prosthesis is permanent or indicative of Plaintiff's ability to work. Indeed, the record contains statements that lead to the opposite conclusion. (See AR 2104.)
What is more, the ALJ failed to recognize or discuss the numerous records supporting Plaintiff's claims that she suffers from chronic pain. (AR 23.) Plaintiff testified that she experiences pain in her stump daily, even while sitting down. (AR 75-76.) Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (“While subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the evidence is still a relevant factor in determining the severity of the claimant's pain and its disabling effects.”) (citing 20 C.F.R. § 404.1529(c)(2)). Before the new prosthesis order, it is noted that the amputation site “has several enlarged varocities that are purple, swollen, and tender.” (AR 2108, 2120.) Those varocites continue to be problematic following the new prosthesis. (See AR 2106.)
The medical assessments of Plaintiff reflect that she constantly had some form of chronic or acute pain due to trauma. (AR 2030-2154.) The chronic stump pain Plaintiff experiences worsens with the use of her prosthesis. (AR 76.) The ALJ cites that the prosthetist described continuous “difficulties with vascular and redundant skin complication.” (AR 24.) The medical record seems to confirm that Plaintiff has difficulties wearing her prosthesis, which aligns with Plaintiff's testimony that she can only use her prosthesis for short periods because of pain. The ALJ's failure to discuss or explain his reasons for discounting Plaintiff's symptom testimony regarding chronic pain is error.
The Court also finds that the ALJ erred in providing the opinion that a wheelchair does not appear to be medically necessary. (AR 24) The medical records note multiple times that Plaintiff used crutches or a wheelchair to ambulate. (AR 2092, 2023, 2062, 2064, 2067, 2069, 2071.) The ALJ states in his decision that Plaintiff, while wearing her prosthesis, is able to ambulate without an assistive device. (AR 24.) But this is consistent with Plaintiff's testimony that she walks with her prosthesis for short periods of time. (AR 67.) ALJs “must review the whole record; they cannot cherry-pick evidence to support their findings.” Bostwick v. Colvin, No. 13-cv-1936-LAB, 2015 WL 12532350, at *2 (S.D. Cal. Mar. 30, 2015); see also Holohan v. Massanari, 246 F.3d 1195, 1207 (9th Cir. 2001) (holding that an ALJ erred by selectively considering some entries in the medical record while ignoring others); see Garrison v. Colvin, 759 F.3d 995, 1017 n.23 (9th Cir. 2014) (“The ALJ was not permitted to ‘cherry-pick' from those mixed results to support a denial of benefits.”).
Here, the medical record supports that Plaintiff does not wear her prosthesis consistently because of pain. (AR 2042, 2033, 2083, 2097, 2107, 2108.) Additionally, the medical record notes Plaintiff “does use her prosthetic and a cane and a wheelchair as needed.” (AR 2024.) The fact that Plaintiff was able to ambulate without an assistive device for some of her medical assessments is consistent with Plaintiff's testimony. (See AR 67 (Plaintiff testifies she can wear her new prosthesis for 15 minutes).)
The record in this action seems to confirm that Plaintiff suffers from chronic pain and has ongoing issues with her prosthesis. (AR 2030-2154.) The ALJ's conclusion that Plaintiff has experienced some improvement with her new prosthesis and does not use a walking aid during doctor appointments does not establish that the longitudinal record fails to support Plaintiff's symptom testimony, and does not provide a clear and convincing reason for discounting that same testimony.
b. Daily Activities.
The ALJ's second reason for discounting Plaintiff's symptom testimony is that Plaintiff's described “daily activities are not limited to the extent one would expect, given the complaints of disabling symptoms and limitations.” (AR 24.) Specifically, the ALJ notes that Plaintiff performs light household chores, maintains her finances, goes outside, and socializes with others, which the ALJ finds the activities to be inconsistent with Plaintiff's claim of disability. Id.
An ALJ may reject a claimant's symptom testimony if it is inconsistent with the claimant's daily activities. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). But “ALJs must be especially cautious in concluding that daily activities are inconsistent with testimony” about subjective symptoms, like pain or fatigue, “because impairments that would unquestionably preclude work and all the pressures of a workplace environment will often be consistent with doing more than merely resting in bed all day.” Garrison, 759 F.3d at 1016. Thus, an ALJ may use a claimant's daily activities to discredit symptom testimony only if the claimant “spend[s] a substantial part of his day engaged in pursuits involving the performance of physical functions that are transferable to a work setting.” Orn, 495 F.3d at 639 (emphasis added); Reddick, 157 F.3d at 722 (“Only if the level of activity were inconsistent with Claimant's claimed limitations would these activities have any bearing on Claimant's credibility.”).
The ALJ found Plaintiff's symptom testimony inconsistent with her reported activities and daily living. An ALJ may consider a claimant's daily activities in weighing a claimant's credibility. Orn, 495 F.3d at 636. The ALJ heavily relied on a daily activity report to support his conclusion that Plaintiff's testimony was inconsistent. (AR 24.) The ALJ noted that Plaintiff was able to complete light chores like microwaving meals, dishes, and grocery shopping. (AR 24.) The ALJ noted that Plaintiff could perform personal care tasks, go outside daily, manage her own finances, and socialize with others daily. (AR 24.) The ALJ also noted that Plaintiff was able to make trips outside of the home, including to Mexico for medical treatment and Las Vegas for family purposes. (AR 24 (citing Plaintiff's hearing testimony).) Ultimately, the ALJ concluded Plaintiff engaged in activities that indicated a higher level of function alleged, and that function was inconsistent with total disability. (AR 24.)
Here, the ALJ fails to show how Plaintiff's daily activities are inconsistent with her subjective testimony or indicative of Plaintiff's ability to work. Specifically, the ALJ fails to how that a substantial part of a typical day was spent engaged in activities inconsistent with disabling limitations, which is a prerequisite for a negative credibility determination based on a claimant's activities. See Vertigan v. Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001). Moreover, the daily activity report upon which the ALJ relies actually supports Plaintiff's alleged limitations and is consistent with Plaintiff's symptom testimony. In the daily report, Plaintiff states she spends her day in bed and lacks sleep because she wakes up multiple times during the night. (AR 322.) Plaintiff's testimony about her ability to complete light chores like washing dishes for 10 minutes or microwaving meals is consistent with the daily activity report. (See AR 323 (Plaintiff cannot stand for long periods to cook and uses a wheelchair).) And the ability to perform personal care tasks, like dressing and bathing, with some difficulty or aid is consistent with her reported pain and limitations. (See AR 323 (Plaintiff needs her mother's help or devices to perform personal care).)
Importantly, there is no discussion regarding the demands, frequency, or duration of the activities listed in the report (See AR 24-25), and the ALJ fails to show any contradiction between those activities and Plaintiff's reported symptoms. See Trevizo, 871 F.3d at 682 (finding ALJ improperly relied upon claimant's childcare activities in the absence of any details as to what activities were involved); Zavalin v. Colvin, 778 F.3d 842, 848 (9th Cir. 2014) (rejecting ALJ reliance on the claimant's activities where there was no indication of the extent, manner, or complexity of those activities). See also Burrell, 775 F.3d at 1137 (criticizing ALJ rationale where “the ALJ did not elaborate on which daily activities conflicted with which part of Claimant's testimony.”). A claimant need not “vegetate in a dark room” to be eligible for benefits. Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987).
What is more, the ALJ overlooks mitigating facts in the record that provide context to Plaintiff's daily activities. For example, while the ALJ concludes that Plaintiff's ability to complete light household chores, prepare simple meals, and engage in personal care contradicts her testimony that chronic pain prevents her from working (AR 24), the ALJ ignores that Plaintiff testified that she frequently naps throughout the day because her medication treating that chronic pain makes her drowsy (AR 72).
Similarly, although the ALJ determined that Plaintiff's ability to go to the grocery store and outside is inconsistent with Plaintiff's symptom testimony (AR 24), the ALJ ignores that Plaintiff testified that she needs her daughter to drive her and help her get out of her vehicle (See AR 324 (Plaintiff cannot drive due to amputation)). Indeed, the record shows that Plaintiff significantly relies on the help of other people to complete her limited number of daily activities. (See AR 322 (Plaintiff lists members of her family that help her).)
The ALJ also notes that Plaintiff took a trip to Ohio for her youngest daughter's graduation, Mexico for medical treatment, and Las Vegas to visit a relative after his surgery. (AR 68-69.) But again, Plaintiff received significant assistance during her trips. Specifically, Plaintiff testified that she was accompanied by her eldest daughter, who cared for her during the trips. Id. Plaintiff's ability to go on trips while under the care of her daughter is consistent with Plaintiff's symptom testimony. See Jimenez v. Commission of Social Security Administration, 413 F.Supp.3d 993 (D. Ariz. 2019) (noting that plaintiff's ability to travel while under the care of family is not indicative of higher functioning). The record also shows that Plaintiff's ability to go outside daily and socialize is not performed without the help of another. (AR 325.)
The ALJ did not conclude how often Plaintiff engaged in the activities or if the daily activities are transferable to a work setting. Plaintiff does not live alone and requires help from her daughter to perform most household chores. The ALJ based his conclusion on the fact that Plaintiff testified she could perform light chores, prepare simple meals, and go on trips. But with all these activities, Plaintiff required help from others and lacked independence. “The Ninth Circuit has repeatedly stated that claimants should not be penalized for attempting to lead normal lives in the face of their limitations.” Bergfeld v. Barnhart, 361 F.Supp.2d 1102, 1115 (D. Ariz. 2005). When considered in context of the entire record, Plaintiff's reported daily activities are consistent with Plaintiff's symptom testimony.
Accordingly, the Court finds the ALJ's second reason for discounting Plaintiff's symptom testimony is not clear and convincing.
B. Work Capacities.
Plaintiff next argues that the Court should find the ALJ's determination that Plaintiff could perform a wide range of sedentary work with some limitations was made without support based on substantial evidence, and thus was error. (Doc. 24 at 22-24.) Specifically, Plaintiff argues that:
The ALJ's determination of Harris's work capacities was unsupported by any evidence in this record. (R. 22.) The ALJ did not cite to specific medical records in support of his finding that Harris could perform even sedentary work, and the ALJ found all the medical opinions concerning Harris's physical capacities unpersuasive. (R. 24-25.) The ALJ's opinion is not substantial evidence to support agency action.(Doc. 24 at 22.) The Court disagrees, and will recommend that Plaintiff's objections to ALJ's RFC determination be denied.
“In determining a claimant's RFC, an ALJ must consider all relevant evidence in the record, including, inter alia, medical records, lay evidence, and ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.' See SSR 96-8p, 1996 WL 374184, at *5; accord 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3).” Robbins, 466 F.3d at 883. The Ninth Circuit has found error where substantial evidence did not support an ALJ's RFC determination. See id. at 883-85. When calculating a claimant's RFC, the ALJ must account for all relevant medical evidence and descriptions of claimant's limitations. 20 C.F.R. § 416.945(a)(3 ); Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017). This Court will affirm an ALJ's RFC determination where the ALJ has applied the proper legal standard and supported her decision with substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005).
Plaintiff's argument that the ALJ presented no evidence beyond his own opinion in support of the RFC determination is belied by the record. Review of the ALJ's decision shows that, in determining Plaintiff's sedentary work capacity, the ALJ discussed Plaintiff's May 2017 function report, specific medical evidence, and each of the medical opinions presented in the record. (See AR 23-25.) While the Court has found that the ALJ improperly discounted Plaintiff's symptom testimony, the argument that the ALJ presented no evidence that Plaintiff is capable of sedentary work is meritless.
Plaintiff contends that the ALJ's RFC determination could not be supported by substantial evidence because the ALJ found each medical provider's opinion to be unpersuasive. (Doc. 24 at 17, 22.) But an ALJ need not defer to any medical opinion. 20 CFR § 404.1520c(a). Instead, the ALJ relied on medical records showing that Plaintiff was ambulatory without an assistive device at various medical appointments. (See AR 2225 (citing AR 2074-87).) The ALJ also relied on portions of the medical opinions, finding that Plaintiff was indeed subject to some postural limitations, and rejecting medical opinions that concluded Plaintiff was capable of engaging in light work - which is more involved than sedentary limitations. (See AR 25 (rejecting the opinions of Drs. Keer and Sapin, which found that Plaintiff was capable of light work).)
Plaintiff argues that “the ALJ articulated no basis for finding Harris was capable of performing activities required for any work other than his own opinion that the record supported the ALJ's residual functional capacity determination” and “[t]he ALJ's decision that Harris's use of a wheelchair was not ‘medically necessary' for the entire time period at issue also lacks support in this record.” (Doc. 24 at 23.) But these arguments are not persuasive. In his decision, the ALJ considered the several medical opinions in the record, including those of Dr. Krista Walker, and the State agency medical consultants Drs. Michael Keer and Neil Sapin, each of which opined Plaintiff to have greater work capabilities than the RFC ultimately assessed by the ALJ. (See AR 24-25.)
The ALJ first considered Dr. Krista Walker's December 2017 opinion and consultative examination findings. (AR 24 (citing AR 2022-29).) In that opinion, Dr. Walker noted that Plaintiff reported she was able to ambulate “with the assistance of her prosthetic,” and Plaintiff performed all examination maneuvers with the prosthetic. (AR 24, 2023.) Dr. Walker described Plaintiff as in only “mild” distress, and Dr. Walker observed that Plaintiff was able to stand/walk to the examination table and get onto/sit on the examination table “with the assistance of her prosthetic and with some difficulty” (AR 24, 2024.) The ALJ notes that Dr. Walker's examination showed an abnormal, antalgic, ataxic gait, but no neurological deficits (AR 24, 2024). Dr. Walker also noted that Plaintiff could sit in a chair without discomfort for the duration of the examination (AR 2024). These objective observations and examination findings support the sedentary RFC finding.
And although the ALJ found Dr. Walker's RFC opinion unpersuasive (AR 24), the ALJ's RFC assessment is consistent with Dr. Walker's opinion that Plaintiff had no sitting limitations as well as Dr. Walker's opinion regarding the following postural and environmental limitations: occasional stooping, crouching, and exposure to extreme cold or heat, but no kneeling, crawling, climbing, or exposure to unprotected heights or moving mechanical parts (AR 22, 2027). Additionally, while Dr. Walker did indicate that an “assistive device,” such as Plaintiff's prosthesis, was medically necessary (AR 2027), Dr. Walker did not indicate Plaintiff was limited to using only a “hand-held” assistive device, such as a walker or wheelchair. Instead, Dr. Walker opined that Plaintiff could also use her prosthesis or a cane, and she could stand/walk six to eight hours in a workday. (See AR 2026-27.)
The ALJ rejected Dr. Walker's recommended RFC - which restricted Plaintiff to light work, rather than the more restrictive sedentary work RFC ultimately assessed by the ALJ - because the ALJ found Dr. Walker's recommended RFC was not sufficiently limited given Plaintiff's conditions. (AR 24.)
What is more, even if Dr. Walker's opinion was credited as true, it would not be outcome determinative or require remand because, according to the vocational expert's hearing testimony, using a cane would not make a great deal of difference in the jobs of addresser, stuffer, and document preparer, which are performed in the seated position. (See AR 82-83, 2027).
The ALJ also considered the State agency medical consultants' findings (AR 25). See 20 C.F.R. § 404.1513a(b)(1) (The State agency medical consultants are highly qualified experts in the Social Security disability evaluation). State agency medical expert, Michael Keer, D.O., reviewed the evidence available through January 8, 2018 (AR 131-36, 141-44, 148-53, 158-61). Dr. Keer agreed with Neil Sapin, M.D., the State agency medical expert who reviewed the evidence in August 2017 and found that Plaintiff had a light RFC with postural and environmental limitations (AR 25, 104-07, 120-23, 141-43, 158-60). The ALJ again rejected the medical opinion evidence because it recommended an RFC the ALJ found to be insufficiently restrictive, e.g., recommending light work capabilities rather than sedentary. Specifically, the ALJ pointed out that the State agency experts' light RFC finding, particularly standing/walking six hours in an eight-hour workday, was inconsistent with “objective findings showing, for example, some prosthesis complications,” and the ALJ further limited Plaintiff to only a sedentary RFC to account for such evidence (AR 22, 25). The ALJ's RFC finding of a more restrictive work capability actually demonstrates the ALJ's proper consideration of the objective medical evidence.
And while the ALJ found the prior administrative medical findings of the State agency consultants' light RFC finding unpersuasive, Plaintiff overlooks that the regulations explain that if a person can perform light work, she can also perform sedentary work (doc. 24 at 17, 22). See 20 C.F.R. § 404.1567(b). Plaintiff also overlooks that the ALJ found their findings on postural restrictions and environmental limitations “persuasive” (doc. 24 at 17, 22); i.e., occasional stooping and crouching, but no climbing, crawling, or exposure to moving mechanical parts or unprotected heights. (AR 22, 25, 106).
Plaintiff also argues that the ALJ “was not qualified” to determine whether a walker or wheelchair was medically necessary. (Doc. 24 at 17-18.) But the regulation does not require the ALJ to obtain this finding directly from a medical opinion, thereby nullifying the ALJ's role as fact-finder. And Plaintiff's speculation that she would require the use of a walker and/or wheelchair “for the entirety of a workday” due to stump and/or prosthesis issues (doc. 24 at 18-19, 23) is insufficient to establish a medical necessity. See Schluter v. Berryhill, No. CV-18-0473-TUC-RM (JR), 2020 WL 1557773, at *5 (D. Ariz. Mar. 10, 2020) (A Plaintiff's testimony regarding necessity, or a physician's mere observation of the use of a cane is insufficient to establish a medical necessity). Plaintiff relies on evidence between August 2017 and January 2018, between July and December 2018, and in July 2019 (doc. 24 at 18-19, 23), but this same evidence shows Plaintiff was ambulatory with her prosthesis (AR 22-25, 2033-51, 2074-75, 2084, 2087, 2097, 2108). Plaintiff overlooks that the ALJ specifically stated that he was “cognizant of the complications” with the prosthesis, and accounted for these complications by limiting Plaintiff to only sedentary work with “restrictive posturals” (AR 22, 24-25). See 20 C.F.R. pt. 404, subpt. P, app. 2, § 201.00(h)(4) (“Sedentary work” represents a significantly restricted range of work, and individuals with a maximum sustained work capacity limited to sedentary work have very serious functional limitations).
Additionally, to the extent Plaintiff contends that the ALJ erred by finding that a walker or wheelchair was not medically necessary (doc. 24 at 17-19, 23-24), Plaintiff's argument is not persuasive because Plaintiff fails to identify evidence in the record showing that a walker or wheelchair was medically necessary for twelve consecutive months during the relevant period. See Barnhart v. Walton, 535 U.S. 212, 215-219 (2002) (The inability to work must coexist with the impairment for a period of twelve months before a decisionmaker can find a claimant disabled). In addition, Plaintiff has failed to establish that a walker or wheelchair was medically required under Social Security Ruling (SSR) 96-9p. See SSR 96-9p (Explaining that for an ALJ to “find that a hand-held assistive device is medically required, there must be medical documentation establishing the need for a hand- held assistive device to aid in walking or standing, and describing the circumstances for which it is needed”); see also Handy v. Comm'r of Soc. Sec., No. CV-19-04545-PHX-JZB, 2020 WL 5699001, at *4 n.2 (D. Ariz. Sept. 24, 2020) (Acknowledging that SSR 96-9p identifies when an ALJ may find that a hand-held assistive device is medically required). Plaintiff has failed to identify evidence in this record that complies with this regulation.
The Court finds that the ALJ's RFC determination was supported by substantial evidence. Accordingly, the Court will recommend that Plaintiff's second argument, that the ALJ erred by determining Plaintiff's work capacities without support based on substantial evidence in the record, be denied.
C. Remand.
The Court has found that the ALJ erred in discounting Plaintiff's symptom testimony, and now must evaluate whether to remand for further proceedings or calculation of benefits.
“The decision whether to remand a case for additional evidence, or simply to award benefits is within the discretion of the court.” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). Ordinarily, where the Court finds the ALJ erred, the appropriate remedy is “remand to the agency for further proceedings before directing an award of benefits.” Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017) as amended (January 25, 2018). Under the credit-as-true rule, however, the Court may remand for the award of benefits if the following criteria are met: (1) the record was fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting claimant testimony or medical opinion evidence; and (3) crediting the evidence as true, the ALJ would be required to find the claimant disabled upon remand. Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). The decision to remand for additional proceedings or award benefits is “within the discretion of the court.” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). Even if the credit-as-true elements are satisfied, the Court has “flexibility to remand for further proceedings when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act.” Garrison, 759 F.3d at 1021.
Here, the first factor is satisfied. The medical record is fully developed and further administrative proceedings would serve no purpose. The second factor is also satisfied, as the Court has concluded the ALJ failed to provide sufficient justification for rejecting Plaintiff's symptom testimony.
The third factor is a close call, but also appears to be satisfied. The vocational expert testified that an individual that uses a wheelchair or walker at work requires an agreement with the employer, thus it is not likely to be competitive in the workplace. (AR 83, 84.) The vocational expert testified that an individual who requires three and a half hour daily breaks to lie down would not be employable in a competitive work setting. (AR 84) Additionally, the vocational expert testified that an individual that is absent more than one day a month is not capable of working in competitive employment. (AR 85.) Ultimately, the vocational expert testimony establishes that if Plaintiff's testimony were credited-as-true, the ALJ would be required to find Plaintiff disabled. Thus, the Court finds that remand for award of benefits is appropriate in this action.
Accordingly, IT IS RECOMMENDED that the final decision of the Commissioner of Social Security is REVERSED and this case is REMANDED for AWARD OF BENEFITS.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rules of Appellate Procedure, Fed. R. App. P. 4(a)(1), should not be filed until entry of the District Court's judgment. Pursuant to 28 U.S.C. § 636(b), any party may file and serve written objections within 14 days after being served with a copy of this Report and Recommendation. Pursuant to Rule 7.2(e)(3), Local Rules of Civil Procedure, objections to the Report and Recommendation may not exceed ten (10) pages. If objections are not timely filed, the party's right to de novo review by the District Judge is waived. See U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).