Opinion
CV-20-00506-TUC-JAS (LCK)
06-07-2022
Ransom S. Hemingway, Plaintiff, v. Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable Lynnette C. Kimmins, United States Magistrate Judge.
Plaintiff Ransom Hemingway brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision by the Commissioner of Social Security (Commissioner). Plaintiff filed an opening brief, Defendant responded, and Plaintiff replied. (Docs. 32, 34, 35.) Pursuant to the Rules of Practice of the Court, this matter was referred to Magistrate Judge Kimmins for Report and Recommendation. Based on the pleadings and administrative record, the Magistrate Judge recommends the District Court, after its independent review, remand for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
Hemingway filed an application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) in November 2017. (Administrative Record (AR) 214, 224.) He was born in May 1990 and was 25 years of age at the March 1, 2016 alleged onset date of disability. (AR 214.) He previously held short-term jobs, earning from $2000 to $14,000 per year. (AR 254-58, 274.) Hemingway's application was denied upon initial review (AR 54-83) and on reconsideration (AR 84-123). A hearing was held on December 18, 2019. (AR 32-52.)
After the hearing, the ALJ found Hemingway had severe impairments of Major Depressive Disorder, Panic Disorder, Social Phobia, and ADHD. (AR 20.) The ALJ determined Hemingway had the Residual Functional Capacity (RFC) to perform work at all exertional levels, but he was limited to simple, routine tasks, reasoning level 2, and simple work-related decisions. (AR 21.) And he was limited to no more than occasional interaction with supervisors, coworkers, and the public. (Id.) The ALJ concluded Hemingway's time off task would be accommodated by standard breaks. (Id.) The ALJ found at Step Five, based on the testimony of a vocational expert, that Hemingway was not disabled because he could perform the jobs of grounds keeper (parks), auto detailer, and industrial cleaner. (AR 25.) The Appeals Council denied Hemingway's request for review of that decision. (AR 1.)
STANDARD OF REVIEW
The Commissioner employs a five-step sequential process to evaluate SSI and DIB claims. 20 C.F.R. §§ 404.1520; 416.920; see also Heckler v. Campbell, 461 U.S. 458, 460462 (1983). To establish disability the claimant bears the burden of showing he (1) is not working; (2) has a severe physical or mental impairment; (3) the impairment meets or equals the requirements of a listed impairment; and (4) claimant's RFC precludes him from performing his past work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At Step Five, the burden shifts to the Commissioner to show that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant “disabled” or “not disabled” at any point in the five-step process, she does not proceed to the next step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
“The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to deny benefits only “when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is so because the ALJ “and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019 (quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner's decision, however, “cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence that supports as well as detracts from the Commissioner's conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).
DISCUSSION
Hemingway argues the ALJ committed three errors: (1) he failed to provide clear and convincing reasons for rejecting Hemingway's symptom testimony; (2) he failed to properly evaluate opinion evidence; and (3) he relied on a flawed hypothetical to the vocational expert.
Symptom Testimony
Hemingway argues the ALJ failed to provide clear and convincing reasons to reject his symptom testimony. In general, “questions of credibility and resolution of conflicts in the testimony are functions solely” for the ALJ. Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)). However, “[w]hile an ALJ may certainly find testimony not credible and disregard it . . . [the court] cannot affirm such a determination unless it is supported by specific findings and reasoning.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884-85 (9th Cir. 2006); Bunnell v. Sullivan, 947 F.2d 341, 345-346 (9th Cir. 1995) (requiring specificity to ensure a reviewing court the ALJ did not arbitrarily reject a claimant's subjective testimony); SSR 16-3p. “To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007).
Initially, “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.'” Id. at 1036 (quoting Bunnell, 947 F.2d at 344). Despite reciting this portion of the test, the ALJ did not make a finding at this stage. (AR 21.) Because the ALJ moved on to the second step of the analysis, the Court presumes he concluded that Plaintiff met the initial criteria. Next, “unless an ALJ makes a finding of malingering based on affirmative evidence thereof, he or she may only find an applicant not credible by making specific findings as to credibility and stating clear and convincing reasons for each.” Robbins, 466 F.3d at 883; Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003) (holding an ALJ can reject claimant testimony if he finds evidence of malingering). The ALJ did not make a finding of malingering. Therefore, to support his discounting of Hemingway's assertions regarding the severity of his symptoms, the ALJ had to provide clear and convincing, specific reasons. See Robbins, 466 F.3d at 883.
Hemingway completed a Function Report on January 16, 2018. He reported erratic sleep. (AR 281.) He stated that he did not care for his hair, rarely shaved, and his ability to dress and bathe was impacted under some circumstances. (AR 282.) He needed reminders for personal care and taking medication. (Id.) Hemingway prepared his own simple foods or bought fast food. (Id.) With encouragement from his father, he would clean his room monthly and do his laundry. (AR 283.) He could drive and got outside most days. (Id.) He was able to shop for food and other items in person or online. (Id.) Hemingway stated that he could no longer keep track of bank accounts or timely pay bills. (AR 284.) He spent most of his time watching television, reading, discussing current events, or playing video games, but he was less focused on these activities than in the past. (Id.) His regular outings were for food or doctor's appointments. (Id.) Hemingway spent time with family but avoided most social situations because they caused him substantial anxiety. (AR 281, 285.) He identified limitations in completing tasks, concentration, following instructions, and getting along with others. (AR 285.) He stated that he could follow non-complicated spoken instructions, but he was not good with written instructions. (Id.) He handled changes in routine poorly. (AR 286.)
At the December 2019 hearing, Hemingway testified that he lost his last job because he was unable to comply with their rigid policy regarding tardiness and absenteeism. (AR 38.) He stated that because of his inconsistent moods he would be late or miss days; he sometimes experienced a "crushed depressed mood" that led him to remain in bed. (Id.) He reported some improvement living at home because it was less stressful (but not permanent). (Id.) Hemingway acknowledged taking himself off medication at times in the past out of frustration that he was not making progress. (AR 39.) He did not think that had been a good decision. (Id.) Hemingway testified that his results from medication were inconsistent; he felt good at times, bad at other times, and sometimes neutral. (Id.) Hemingway felt he would be able to obtain employment, but he would struggle to maintain a consistent mood that would allow him to work over a period of time. (AR 40.) He had tried taking classes and could do the work but had not made it to class regularly. (AR 42.) On a good day, he would shower, eat, and try to walk in an effort to be more physically active. (Id.) He tried to fill his time with reading or to focus on finding work. (AR 43.) He reported having a decent memory but terrible concentration that lasted about one to two hours. (Id.) On bad days, which occurred a few times per month, he did not leave his room. (Id.) Hemingway was able to drive but did so infrequently to get food or go to an appointment. (AR 44.) He indicated he had missed quite a few appointments because he was having a bad day and couldn't leave the house. (Id.)
The ALJ discounted Hemingway's symptom testimony as not entirely consistent with the record. (AR 23.) The ALJ cited records in which Hemingway was documented to have mostly normal functioning for mental status exams, including cooperative and engaged behavior, good eye contact, good judgment, intact memory and thought processes, and normal concentration. (Id.) The ALJ also discounted Hemingway's symptom testimony because he had not consistently followed recommended treatment. (Id.) Further, the ALJ relied upon inconsistency between Hemingway's testimony and his activity level. The ALJ cited Hemingway's ability to drive, read, and play video games, all of which the ALJ determined required concentration and attention. (Id.) Finally, Hemingway had spent time with friends and travelled to a gaming competition. (Id.)
First, Hemingway did stop taking his medication for a period of months. Failure to follow recommended treatment can be a reason to discount a claimant's symptom testimony. However, the Ninth Circuit has noted, “[i]t is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation.” Garrison v. Colvin, 759 F.3d 995, 1018 n.24 (9th Cir. 2014) (quoting Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996)). Therefore, “we do not punish the mentally ill for occasionally going off their medication when the record affords compelling reason to view such departures from prescribed treatment as part of claimants' underlying mental afflictions.” Id. Hemingway testified that it had not been a good decision to stop taking medication, but he always returned to treatment even though the results had been inconsistent. (AR 39.) Dr. West noted, more than once, that Hemingway may want to improve his mental health or other circumstances but at times "is unable to take action to make things happen," including taking medication. (AR 776, 789.) Dr. West also explained that when Hemingway's new medication provider made changes, Hemingway became confused or frustrated, which caused him to disengage from the process. (AR 789.) Under the circumstances of this case, Hemingway's failure to consistently follow recommended treatment is not a sign that his impairments were less severe than he testified they were; rather, it was emblematic of the limitations caused by his mental health problems. Thus, Hemingway's failure to consistently maintain treatment was not a clear and convincing reason to reject his symptom testimony.
Defendant argues that the ALJ did not discount Hemingway's symptom testimony because his medication non-compliance indicated he exaggerated his symptom testimony. (Doc. 34 at 10.) Rather, Defendant contends that the ALJ determined his symptoms improved with treatment, therefore, he was not disabled because most of the time he complied with the recommended medication. (Id.) This explanation does not reflect the ALJ's decision. The ALJ's brief discussion of Hemingway's non-compliance includes no mention of the efficacy of medication in treating Hemingway's impairments:
Second, while the claimant has received treatment for his impairments, he has not followed recommended treatment. The record notes that the claimant has decided to quit his medication for months at a time and this was corroborated by the claimant during the hearing, even while noting that he "should" be taking them.(AR 23.)
Second, if a claimant's activities contradict his testimony, those circumstances can form the basis for an adverse credibility determination. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). The ALJ found that Hemingway's driving, reading, and playing of video games showed a level of concentration that contradicted his testimony. Hemingway quantified his poor concentration as allowing him to focus for one to two hours at a time. (AR 43.) That is not inconsistent with his ability to drive (for an appointment or to pick up food), read, or play video games for an unspecified amount of time with breaks of his choosing. The ALJ also noted that Hemingway socialized with friends, including going on a road trip with them. The cited record is from August 2014, more than 18 months prior to Hemingway's alleged onset date. (AR 386.) After the onset date, there are no records that document Hemingway spending time with friends in-person. During mental health appointments, he expressed a strong dislike for most people and disclosed experiencing homicidal ideation. (AR 778, 975.) Hemingway's activities of daily living were not a clear and convincing reason to reject his symptom testimony.
“The ALJ must specifically identify what testimony is credible and what testimony undermines the claimant's complaints.” Morgan v. Comm 'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). Even if the Court agreed that Hemingway's activities provided a clear and convincing reason to discount his testimony regarding concentration impairment, the ALJ did not provide a rationale to discount his other testimony, including that several days per month he was unable to leave his bedroom. For that reason, he would be late or absent an unacceptable amount of time to maintain employment. His testimony on this point is corroborated by records documenting 11 missed mental health appointments. (AR 451, 453, 455, 467, 484, 680, 773, 782, 783, 787, 987.)
The remaining reason the ALJ articulated for discounting Hemingway's symptom testimony was that it was inconsistent with the objective medical evidence, in the form of mental status exams. Many of the mental status exams had normal results in most categories. However, the ALJ did not acknowledge that all but one mental status exam by a mental health professional documented Hemingway presenting with a depressed and/or anxious mood. This was true over the course of more than two years, whether or not Hemingway was taking medication. Also, NP Ashurst administered Hemingway several evaluative instruments that supported those findings: mood disorder questionnaire (positive for bipolar II), PHQ-9 (positive for severe depression), and GAD (positive for severe anxiety). (AR 406.) The ALJ did not explain why mental status exams in which Hemingway presented as cooperative, with fair to good judgment, normal concentration, and intact memory and thought processes necessarily undermine the entirety of his symptom testimony. Further, after discounting Hemingway's symptom testimony, the ALJ relied upon that same testimony to find more limitations than those identified by the state agency reviewing psychologists, specifically in the categories of concentration and interactions with supervisors, coworkers, and the public. (AR 24.) The ALJ did not reconcile this inconsistency or explain if he found particular symptom testimony reliable while rejecting other portions as unreliable.
Regardless, if the objective medical evidence (which consisted of mental status exams in this case) fully explained a claimant's symptoms, then his testimony would be irrelevant. Symptom testimony factors into the ALJ's decision only when the claimant's stated symptoms are not substantiated fully by the objective medical evidence. SSR 16-3p. Thus, it is error for an ALJ to discount symptom testimony solely because it is not substantiated by the medical evidence. Id.; Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). In sum, the ALJ erred by failing to identify clear and convincing reasons, supported by substantial evidence, to reject Hemingway's symptom testimony.
Opinion Evidence
Treating Psychologist Darwin West
On July 2, 2018, Dr. West diagnosed Hemingway with ADHD and bipolar disorder. (AR 723.) He noted that Hemingway had extreme difficulty interacting with, and tolerating, others, that he was unable to work, and struggled with self-care and daily living skills. (AR 723.) He stated that Hemingway exhibited depressed mood, persistent or generalized anxiety, irritability and hostility, feelings of guilt or worthlessness, manic syndrome, grandiose thoughts, difficulty thinking or concentrating, easy distractibility, pervasive loss of interest, appetite disturbances or weight change, decreased energy, maladaptive patterns of behavior, intense and unstable interpersonal relationships, social withdrawal or isolation, and sleep disturbances. (AR 724.) He identified the most severe symptoms as lethargy, social isolation, irritability, and depression. (AR 725.)
Dr. West found that Hemingway had marked limitations in sustaining an ordinary routine without supervision, working near others without being distracted by them, completing a workday without psychological interruption, interacting appropriately with the public, and adhering to basic standards of neatness; and moderate to marked limitations in remembering locations and work-like procedures, understanding and remembering detailed instructions, maintaining attention and concentration for extended periods, performing within a schedule and being punctual, performing at a consistent pace without rest periods of unreasonable length/frequency, responding appropriately to supervisors or workplace changes, getting along with coworkers without distracting them, maintaining socially appropriate behavior, traveling to unfamiliar places, setting realistic goals, and making plans independently. (AR 726.) Dr. West determined Hemingway had moderate limitations in understanding and remembering one or two step instructions, carrying out simple or detailed instructions, making simple work decisions, asking simple questions, and being aware of hazards. (Id.) Dr. West concluded that Hemingway would be absent more than three times per month due to his impairments. (AR 727.) In an October 4, 2019 questionnaire, Dr. West identified similar symptoms and limitations and stated that Hemingway had chronic depression that precluded him from performing any tasks at an acceptable level. (AR 796-98.)
The ALJ found Dr. West's opinion not persuasive because the opinion offered little support for the identified limitations, and the severe restrictions were inconsistent with Hemingway's mostly normal mental status examinations. (AR 24.) First, the Court evaluates the ALJ's conclusion that Dr. West's opinion failed to offer support for the listed limitations. On the forms themselves, Dr. West stated that Hemingway had extreme difficulty interacting with others, struggled with self-care and daily living skills, was unable to constructively interact, and lacked motivation. (AR 723, 795.) He also identified numerous symptoms experienced by Hemingway, including difficulty thinking and concentrating, depression, anxiety, irritability, social isolation, and maladaptive patterns of behavior. (AR 724, 796.) Further, Dr. West's findings are well-supported by his treating records over the course of three years. (AR 434 (attention difficulties), 435 (depression and social withdrawal), 447 (down and hopeless), 450 (struggling to concentrate and stay on task), 454 (improved mood but struggling to be on time), 485 (failed to enroll in school, not functioning well-enough for work), 491 (depends upon his father to track appointments and remind him to attend), 677 (depressed, struggle to maintain productive thoughts), 680 (forgot annual review appointment), 582-83 (thought content depressive, impairment of attention and concentration), 772 (depressive mindset, no motivation), 774 (not progressing, languishing), 776 (struggling with anxiety and depression, unable to take action; "the ability to be successful in meeting the demands of a normal job is very limited if not absent at this time."), 780 (could not handle stress of applying for a job), 781 (struggling to interact with others), 782 (missed appointment), 786 (does not want to interact, depressed), 789 (no motivation, struggling to take meds or attend appointments). An ALJ should not reject a medical opinion as unsupported, even if the form provides limited or no explanation, if the opinion is supported by treating records. See Garrison, 759 F.3d at 1013 (giving weight to a medical opinion because it was based on a significant treating relationship and supported by extensive records); Esparza v. Colvin, 631 Fed.Appx. 460, 462 (9th Cir. 2015). Here, the explanations within the forms and Dr. West's treating records supported his opinion.
As support that Dr. West provided for his assessment, Defendant identifies only the psychologist's reference to "psychiatric notes" in his second opinion. (Doc. 34 at 21; AR 797.) Defendant construes the referenced notes to include records from all Hemingway's mental health providers. (Id.) However, Defendant did not evaluate the mental health records wholistically but looked only at whether mental status exams supported Dr. West's opinion. (Id.) In contrast, the ALJ did not evaluate mental status exams as to the supportability factor; rather, he relied upon them only in evaluating the consistency factor. (Ar 25.) The Court relies upon all of the support provided by Dr. West in both of his opinions. Also, as Dr. West did not indicate that he reviewed records from other providers, the Court interprets the citation to "psychiatric notes" as referring solely to his own treating notes.
Second, the ALJ concluded that Hemingway's mostly normal mental status examinations were inconsistent with Dr. West's finding of severe limitations. This finding by the ALJ suffers from the same problems as discussed with respect to Hemingway's symptom testimony. The ALJ did not explain why mental status exams revealing that a claimant presented as cooperative, with fair to good judgment, normal concentration, and intact memory and thought processes necessarily undermine the entirety of Dr. West's opinion regarding Hemingway's limitations. It is not obvious, particularly as Dr. West's opinion was premised, in great part, on his finding that Hemingway's most severe symptoms were chronic depression and social isolation. (AR 724-25, 796-97.) Dr. West repeatedly documented Hemingway as isolating from others, lacking motivation, and presenting with a depressed mood, as did his other mental health providers. Also, Hemingway scored as severely depressed on the PHQ-9 administered by NP Ashurst. The ALJ's finding of inconsistency was not supported by substantial evidence and is not a basis to discount the entirety of Dr. West's opinion.
Treating Psychiatric Nurse Practitioner Marsha Ashurst
Nurse Practitioner Marsha Ashurst diagnosed Hemingway with bipolar II and panic disorder. (AR 404.) She noted that he had been unable to maintain consecutive employment and he isolated. (Id.) She identified the following symptoms: depressed mood, persistent or generalized anxiety, constricted, flat and irritable affect, feelings of guilt or worthlessness, hostility or irritability, suicidal ideation, difficulty thinking or concentrating, easy distractibility, persistent irrational fears, recurrent panic attacks, pervasive loss of interests, appetite disturbances or weight change, change in personality, decreased energy, maladaptive patterns of behavior, psychomotor agitation, and social withdrawal or isolation. (AR 405.) The most severe symptoms she identified were mood cycling with depression, suicidal ideation, anger, irritability, and anxiety. (AR 406.) She cited several evaluative instruments she used with Hemingway, mood disorder questionnaire (positive for bipolar II), PHQ-9 (positive for severe depression), and GAD (positive for severe anxiety). (Id.) She determined Hemingway had marked limitations in maintaining attention and concentration for extended periods, performing within a schedule and being punctual, making simple work decisions, interacting appropriately with the public, responding appropriately to supervisors and workplace changes, getting along with coworkers without distraction, maintaining socially appropriate behavior, travelling to unfamiliar places, and making independent plans; and marked to moderate limitations in working near others without distraction, completing a workday without psychological interruption, performing at a consistent pace without rests of unreasonable length or frequency, adhering to basic standards of neatness, and setting realistic goals. (AR 407.) NP Ashurst found he had no limitation in asking simple questions, but she determined Hemingway had moderate limitations in all other areas, remembering locations and work procedures, understanding, remembering, and carrying out simple or detailed instructions, and sustaining an ordinary routine without supervision. (Id.) She concluded Hemingway would miss more than three days per month due to his impairments. (AR 408.)
First, the ALJ found NP Ashurst's opinion was inconsistent with Hemingway's denial of mood cycling, particularly when he took his medication consistently. (AR 23-24.) In early 2017, Hemingway reported to NP Ashurst that he was experiencing mood cycling. (AR 441, 443.) She wrote her opinion on April 20, 2017. (AR 408.) In August 2017, after consistently taking medication for a period of months, Hemingway reported that he was not experiencing mood cycling. (AR 929, 931, 939.) By early 2018, Hemingway's mental health practitioners documented his obvious depression. (AR 495, 506.) He also began to experience more anger, and in August 2018 Hemingway reported that his anger would flair up rapidly. (AR 677, 777.) At the time NP Ashurst wrote her opinion, Hemingway had been complaining of mood cycling as reflected in her opinion. And, in 2018, he was again experiencing angry outbursts along with significant depression. The fact that Hemingway denied mood cycling during a one-month period, after NP Ashurst provided her opinion, does not establish that the entirety of her opinion was inconsistent with "the evidence from other medical sources and nonmedical sources." 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2). In fact, NP Ashurst's opinion is consistent with that of Dr. West, her own treating records, the treating notes of Drs. West and Tilyou, and the testimony of Hemingway. Further, to the extent the ALJ identified an inconsistency, it went only to the symptom of mood cycling. NP Ashurst's opinion of Hemingway's limitations was based on many other symptoms including severe depression and anxiety, social isolation, and maladaptive patterns of behavior. The ALJ's finding of inconsistency is not supported by substantial evidence and is not a basis to discount the entirety of NP Ashurst's opinion.
Second, the ALJ found NP Ashurst's opinion not persuasive because it was not supported by her treating notes, including findings that Hemingway had no gross cognitive dysfunction and repeatedly showed normal concentration. (AR 23.) This finding by the ALJ suffers from the same problems as discussed with respect to Hemingway's symptom testimony. NP Ashurst's opinion was premised in great part on her findings that Hemingway suffered from severe anxiety and depression. An anxious or depressed mood was documented in all but one of her treating notes; and all of the treating notes of his other mental health providers, Drs. West and Tilyou. These findings were further supported by Hemingway's results on two screening instruments administered by NP Ashurst: the PHQ-9 (positive for severe depression), and GAD (positive for severe anxiety). NP Ashurst's repeated findings of good concentration in her treating notes may demonstrate that her opinion of Hemingway having impaired concentration and attention is not well supported. However, the ALJ did not explain why treatment notes reflecting normal concentration and no gross cognitive dysfunction necessarily undermined the entirety of NP Ashurst's opinion testimony, particularly when she cited his most serious symptoms to be depression, anger, irritability, and anxiety. The ALJ's finding that NP Ashurst's opinion was not supported by her notes is itself not supported by substantial evidence and is not a basis to discount the entirety of NP Ashurst's opinion.
Concentration Persistence, and Pace
Hemingway argues that the ALJ's RFC failed to account for the moderate limitations in concentration, persistence, and pace as found by the ALJ. He contends that the mental limitations in the RFC - only simple, routine tasks, no more than reasoning level 2, and judgment limited to simple work-related decisions - failed to accommodate his limitations in concentrating over a period of time, persisting at tasks, or maintaining a certain pace.
At the initial level, agency reviewing psychologist, Dr. Titus, determined that Hemingway was moderately limited in his ability to maintain attention and concentration for extended periods, and to perform at a consistent pace without an unreasonable number and length of rest periods. (AR 67.) With those limitations, she concluded he still could perform work in a semi-skilled work environment. (Id.) At the reconsideration level, agency reviewing psychologist, Dr. Waldman, determined that Hemingway had sustained concentration and persistence limitations, but the available evidence was insufficient to evaluate that ability. (AR 101.) Also, he found that Hemingway was moderately limited in his ability to perform activities within a schedule, maintain regular attendance, be punctual within customary tolerance, and to perform at a consistent pace without an unreasonable number and length of rest periods. (Id.) Despite those limitations, Dr. Waldman concluded Hemingway could work if limited to simple, unskilled work. (AR 102.)
In the case of Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008), two doctors identified that the claimant had limitations in pace. Id. at 1173. One of the doctors concluded that, despite that limitation, the claimant retained the ability to do simple tasks. Id. The Ninth Circuit found it was proper for the ALJ to restrict the claimant to simple, routine work because that was the only concrete restriction offered by a doctor. Id. at 1174, 1175 (finding that the ALJ explained his decision to omit the claimant's pace deficiencies by referencing the doctor's opinion). Based on Stubbs-Danielson, the critical factor in resolving this claim is whether the ALJ's RFC finding was consistent with one or more medical opinions. The Court does not reach a decision on this claim, however, because the ALJ erred in evaluating the medical opinions of Dr. West and NP Ashurst. Upon remand, the ALJ must reevaluate all of the medical opinions in determining Hemingway's RFC.
CONCLUSION AND RECOMMENDATION
A federal court may affirm, modify, reverse, or remand a social security case. 42 U.S.C. § 405(g). When a court finds that an administrative decision is flawed, the remedy should generally be remand for “additional investigation or explanation.” INS v. Ventura, 537 U.S. 12, 16 (2006) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)); see also Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004). However, a district court should credit as true medical opinions and a claimant's testimony that was improperly rejected by the ALJ and remand for benefits if:
(1) the ALJ failed to provide legally sufficient reasons for rejecting the testimony; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004); Garrison, 759 F.3d at 1021 (precluding remand for further proceedings if the purpose is solely to allow ALJ to revisit the medical opinion he rejected). The Ninth Circuit holds that application of the credit as true rule is mandatory unless the record creates serious doubt that the claimant is disabled. Garrison, 759 F.3d at 1021.
The Court concluded that the first requirement has been satisfied, because the ALJ rejected the symptom testimony of Hemingway and the opinions of Dr. West and NP Ashurst without legally valid reasons. However, the Court finds there are outstanding issues that must be resolved prior to a disability determination. Credit as true would not be appropriate as to the entirety of the symptom testimony and medical opinions because the ALJ identified some grounds that might be sufficient to discount portions of that evidence. For example, the ALJ relied upon the fact that Hemingway's mental status exams often were normal in numerous categories, such as concentration. As explained above, that fact could be relied upon in finding certain symptom testimony or portions of the medical opinions inconsistent with the evidence or not well supported. But the mental status exams were insufficient for the ALJ to conclude that Hemingway's symptom testimony and the medical opinions were not persuasive in entirety and could be almost wholesale disregarded. The Court is not the proper entity to reconsider the entirety of the evidence and parse it more finely as the ALJ was required to do. For that reason, the ALJ should conduct a new hearing, evaluate the entirety of the evidence, and articulate which portions of the symptom testimony and the medical opinions he finds persuasive, which portions he discounts, and his rationale for reaching those decisions.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV-20-506-TUC-JAS.