Opinion
CV-23-00562-DWL
01-25-2024
Cassandra Marie Martinez, Plaintiff, v. Acting Commissioner of the Social Security Administration, Defendant.
HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
EILEEN S. WILLETT UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Cassandra Marie Martinez's (“Plaintiff”) appeal of the Social Security Administration's (“Social Security”) denial of her application for Supplemental Security Income. The Court has jurisdiction to decide Plaintiff's appeal pursuant to 42 U.S.C. § 405(g). Under 42 U.S.C. § 405(g), the Court has the power to enter, based upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the case for a rehearing.
After reviewing the Administrative Record (“A.R.”) and the parties' briefing (Docs. 19, 21, 22), the undersigned finds that the Administrative Law Judge's (“ALJ”) decision contains harmful legal error. For the reasons explained in Section II below, it is recommended that the decision be reversed and the case remanded to the Commissioner of Social Security for an award of benefits.
I. LEGAL STANDARDS
A. Disability Analysis: Five-Step Evaluation
The Social Security Act (the “Act”) provides for disability insurance benefits to those who have contributed to the Social Security program and who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1). The Act also provides for supplemental security income to certain individuals who are aged 65 or older, blind, or disabled and have limited income. 42 U.S.C. § 1382. To be eligible for benefits based on an alleged disability, the claimant must show that he or she suffers from a medically determinable physical or mental impairment that prohibits him or her from engaging in any substantial gainful activity. 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 1382c(A)(3)(A). The claimant must also show that the impairment is expected to cause death or last for a continuous period of at least 12 months. Id.
To decide if a claimant is entitled to Social Security disability benefits, an ALJ conducts an analysis consisting of five questions, which are considered in sequential steps. 20 C.F.R. §§ 404.1520(a), 416.920(a). The claimant has the burden of proof regarding the first four steps:
Parra v. Astrue, 481 F.3d 742,746 (9th Cir. 2007).
Step One : Is the claimant engaged in “substantial gainful activity”? If so, the analysis ends and disability benefits are denied. Otherwise, the ALJ proceeds to step two.
Step Two: Does the claimant have a medically severe impairment or combination of impairments? A severe impairment is one which significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does not have a severe impairment or combination of impairments, disability benefits are denied at this step. Otherwise, the ALJ proceeds to step three.
Step Three: Is the impairment equivalent to one of a number of listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity? 20 C.F.R. §§ 404.1520(d), 416.920(d). If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one that is presumed to be disabling, the ALJ proceeds to the fourth step of the analysis.
Step Four: Does the impairment prevent the claimant from performing work which the claimant performed in the past? If not, the claimant is “not disabled” and disability benefits are denied without continuing the analysis. 20 C.F.R. §§ 404.1520(f), 416.920(f). Otherwise, the ALJ proceeds to the last step.
If the analysis proceeds to the final question, the burden of proof shifts to the Commissioner:
Parra, 481 F.3d at 746.
Step Five: Can the claimant perform other work in the national economy in light of his or her age, education, and work experience? The claimant is entitled to disability benefits only if he or she is unable to perform other work. 20 C.F.R. §§ 404.1520(g), 416.920(g). Social Security is responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy that the claimant can do, given the claimant's residual functional capacity, age, education, and work experience. Id.
B. Standard of Review Applicable to ALJ's Determination
The Court must affirm an ALJ's decision if it is supported by substantial evidence and is based on correct legal standards. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). Although “substantial evidence” is less than a preponderance, it is more than a “mere scintilla.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938)). It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.
In determining whether substantial evidence supports the ALJ's decision, the Court considers the record as a whole, weighing both the evidence that supports and detracts from the ALJ's conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). Ifthere is sufficient evidence to support the ALJ's determination, the Court cannot substitute its own determination. See Morgan v. Comm r of the Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) (“Where the evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.”); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). This is because the ALJ, not the Court, is responsible for resolving conflicts and ambiguities in the evidence and determining credibility. Magallanes, 881 F.2d at 750; see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
The Court also considers the harmless error doctrine when reviewing an ALJ's decision. This doctrine provides that an ALJ's decision need not be remanded or reversed if it is clear from the record that the error is “inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citations omitted); Molina, 674 F.3d at 1115 (an error is harmless so long as there remains substantial evidence supporting the ALJ's decision and the error “does not negate the validity of the ALJ's ultimate conclusion”) (citations omitted).
II. PLAINTIFF'S APPEAL
A. Procedural Background
In 2018, Plaintiff applied for Supplemental Security Income benefits. (A.R. 48896). Plaintiff has no past relevant work. (A.R. 62). Plaintiff's application alleged that on December 31, 2012, Plaintiff became limited in her ability to work due to fibromyalgia, carpal tunnel in both hands, post-traumatic stress disorder, chronic migraines, depression, anxiety, and normocytic normochromine anemia. (A.R. 220). Plaintiff subsequently amended the disability onset date to January 24, 2017. (A.R. 267). Social Security denied the application on November 13, 2018. (A.R. 297-300). On February 19, 2019, upon Plaintiff's request for reconsideration, Social Security affirmed the denial of benefits. (A.R. 304-08). Plaintiff sought further review by an ALJ, who conducted a hearing on May 4, 2020. (A.R. 97-181). After the ALJ denied Plaintiff's claim on June 24, 2020, the Appeals Council granted Plaintiff's request for review and remanded the claim to the ALJ for further proceedings. (A.R. 267-79, 290-91).
A different ALJ held a second hearing on August 3, 2022. (A.R. 75-96). In his September 23, 2022 decision, the ALJ found that Plaintiff is not disabled within the meaning of the Social Security Act. (A.R. 33-74). The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Social Security Commissioner. (A.R. 1-6). On April 4, 2023, Plaintiff filed a Complaint (Doc. 1) requesting judicial review and reversal of the ALJ's decision.
B. The ALJ's Application of the Five-Step Disability Analysis
1. Step One: Engagement in “Substantial Gainful Activity”
The ALJ determined that Plaintiff has not engaged in substantial gainful activity since July 17, 2018 (the application date). (A.R. 37). Neither party disputes this determination.
2. Step Two: Presence of Medically Severe Impairment/Combination of Impairments
The ALJ found that Plaintiff has the following severe impairments: (i) degenerative disc disease of the spine; (ii) right shoulder impingement; (iii) migraine headaches; (iv) bipolar disorder; and (v) social anxiety disorder. (A.R. 37). This determination is undisputed.
3. Step Three: Presence of Listed Impairment(s)
The ALJ determined that Plaintiff does not have an impairment or combination of impairments that meets or medically equals an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the Social Security regulations. (A.R. 38). Neither party disputes the ALJ's determination at this step.
4. Steps Four and Five: Capacity to Perform Work
The ALJ found that Plaintiff has retained the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 416.967(b) except: the claimant can stand and/or walk a maximum of six hours in an eight-hour workday. The claimant can frequently balance, occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl but never climb ladders, ropes, or scaffolds. She can frequently engage in overhead reaching with the right upper extremity. She cannot be exposed to dangerous machinery and unprotected heights. The claimant is limited to occupations, which require no more than occasional interaction with supervisors, co-workers and members of the public. She can tolerate occasional changes in a routine work setting.(A.R. 40). Plaintiff has no past relevant work. (A.R. 62). Based on the assessed RFC and testimony of the Vocational Expert (“VE”) at the August 2022 administrative hearing, the ALJ concluded that Plaintiff is capable of performing representative occupations such as Mail Clerk, Office Helper, and Cleaner Two. (A.R. 63).
After considering the VE's testimony, Plaintiff's age, education, work experience, and RFC, the ALJ determined that Plaintiff was capable of making a successful adjustment to other work that exists in significant numbers in the national economy and is therefore not disabled. (Id.).
C. The ALJ's Evaluation of the Opinions of Plaintiff's Treating Physicians
1. Legal Standards
For disability claims filed after March 27, 2017, revised Social Security Administration regulations apply to the ALJ's consideration of the medical evidence. See Revisions to Rules Regarding the Evaluation of Medical Evidence (Revisions), 82 Fed.Reg. 5844-01, 2017 WL 168819, at *5844 (Jan. 18, 2017). The revised regulations provide that Social Security “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [the claimant's own] medical sources.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Thus, the new regulations require an ALJ to apply the same factors to all medical sources when considering medical opinions. As the Ninth Circuit has explained, the revised Social Security regulations abrogate prior precedents requiring an ALJ to provide “specific and legitimate reasons supported by substantial evidence in the record” for rejecting the opinion of a treating physician. Woods v. Kijakazi, 32 F.4th 785, 788-92 (9th Cir. 2022).
Instead, “[w]hen a medical source provides one or more medical opinions or prior administrative medical findings, [Social Security] will consider those medical opinions or prior administrative medical findings from that medical source together using” the following factors: (i) supportability; (ii) consistency; (iii) relationship with the claimant; (iv) specialization; and (v) other factors that “tend to support or contradict a medical opinion or prior administrative medical finding.” 20 C.F.R. §§ 416.920c(a), (c)(1)-(5). As set forth in Section 416.920c(a), the “most important factors” Social Security considers when evaluating “the persuasiveness of medical opinions and prior administrative medical findings are supportability . . . and consistency[.]”
Regarding the supportability factor, the regulations provide that the “more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s), the more persuasive the medical opinions . . . will be.” 20 C.F.R. § 416.920c(c)(1). As to the consistency factor, the “more consistent a medical opinion(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be.” 20 C.F.R. § 416.920c(c)(2).
Section 416.920c(b)(2) provides that Social Security “will explain how we considered the supportability and consistency factors for a medical source's medical opinions or prior administrative medical findings in your determination or decision.” Social Security “may, but [is] not required to, explain how [it] considered the [other remaining factors],” except when deciding among differing yet equally persuasive opinions or findings on the same issue. 20 C.F.R. § 416.920c(b)(2)-(3). Further, Social Security is “not required to articulate how [it] considered evidence from nonmedical sources.” 20 C.F.R. § 416.920c(d).
2. Opinions of Rachel Sy, D.O.
Plaintiff's treating physician, Rachel Sy, D.O., completed four Medical Assessments that are dated August 15, 2018, February 13, 2019, April 14, 2020, and June 8, 2022. (A.R. 886-87; 1298-99; 2185-86; 3212-13). Dr. Sy opined that as a result of Plaintiff's impairments, Plaintiff had significant limitations in lifting, carrying, standing, walking, and sitting. (A.R. 886, 1298, 2185, 3212). Dr. Sy also opined that Plaintiff's medications cause cognitive or pace limitations, which would “inhibit the completion of more than 1 and 2 step job duties over an 8 hour work day” and cause Plaintiff to be off-task 16-20% of an eight-hour work day. (A.R. 887, 1299, 2186, 3213). Dr. Sy further opined that Plaintiff's impairments would “result in, cause, or contribute to headaches or mental fatigue” more than four times a month. (Id.).
The ALJ found Dr. Sy's opinions to be unpersuasive. The ALJ stated that he found Dr. Sy's opinions “inconsistent with the medical evidence of record and other nonexamining source opinions. The evidence suggests that the limitations caused by the impairments noted by Dr. Sy were partially o[r] fully resolved with medical intervention.” (A.R. 59). The ALJ supported this finding by broadly citing to “Exhibits B7F; B11F; B18F/18; B21F; B22F; B31F/3; B37F/3, 12; B40F; B41F/50, 58, 68, 94, 103, 125, 132, 142, 146, 201; B50F; B51F/52, 60, 81; B52F/3, 7, 10, 14, 20, 23; B55F; B58F; B61F; B67F; B68F; B69F; B76F; B78F.” (A.R. 59).
In explaining why he found Dr. Sy's opinions unpersuasive, the ALJ further stated that
the limitations opined by Dr. Sy are unsupported by her treatment record. Dr. Sy primarily treated the claimant for Vit. B12, Vit. D, and Vit. A deficiencies along with medication refills. The claimant reported to her PCP information regarding other treatments, which appear to have been relied on forming her opinion of the claimant's limitations, which are unsupported by her treatment records.
The treatment records from Dr. Sy do not show significant concerns consistent with her limitations noted above. (Exhibits 6F; 7F; 19F; 20F; 35F; 48F; 66F; 81F).(Id.).
“Even under the new regulations, an ALJ cannot reject an examining or treating doctor's opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence.” Woods, 32 F.4th at 792. An ALJ must “articulate . . . how persuasive” he or she finds “all of the medical opinions,” 20 C.F.R. § 416.920c(b), and “explain how [he or she] considered the supportability and consistency factor” in making those findings, 20 C.F.R. § 416.920c(b)(2).
As Plaintiff correctly observes (Doc. 19 at 18), the exhibits cited by the ALJ consist of hundreds of pages. In responding to Plaintiff's argument that the ALJ failed to explain how the evidence contradicted Dr. Sy's opinions, Defendant asserts that “examination findings that directly contradict opined limitations do not need additional explanation.” (Doc. 21 at 6). However, the undersigned is not persuaded that the records cited by the ALJ are self-evidently contradictory and thereby eliminate the need for additional explanation. Defendant concedes that a number of Dr. Sy's records note remarkable findings. (Id. at 5; citing A.R. 732, 746, 764, 1140, 1149, 1418). Plaintiff cites additional records in which Dr. Sy notes remarkable examination findings. (Doc. 19 at 5-6). For example, Dr. Sy's records from July 18, 2018 and August 14, 2018 report Plaintiff's chronic low back pain, numbness in her hands, reduced sensation, and referrals to physical therapy and pain management. (A.R. 730-32, 815-16).
The ALJ did not sufficiently identify any specific evidence that contradicted or undermined Dr. Sy's opinions, nor did he sufficiently explain how the record as a whole is inconsistent with Dr. Sy's opinions. The undersigned agrees with Plaintiff that the ALJ provided legally insufficient reasons for finding Dr. Sy's opinions unpersuasive. See, e.g., Cervi v. Comm'r of Soc. Sec. Admin., No. CV-20-02056-PHX-SPL, 2022 WL 621765, at *3 (D. Ariz. Mar. 3, 2022) (“The ALJ fails to meaningfully explain how these findings [from Dr. Rakkar's own treatment notes] were ‘not substantially consistent' with Dr. Rakkar's opinions. . . . This failure is particularly notable because the examinations and treatment notes to which the ALJ refers could plausibly be read to support the limitations Dr. Rakkar found-after all, each of these allegedly inconsistent examinations nonetheless noted back pain and decreased ranges of motion. Without a more substantive explanation from the ALJ . . . this Court cannot find that the ALJ's discrediting of Dr. Rakkar's opinions is supported by substantial evidence.”) (citations omitted).
3. Swaraj Singh, M.D.
Swaraj Singh, M.D. completed three Medical Assessments that are dated April 24, 2019, March 26, 2020, March 18, 2021, and July 6, 2022. (A.R. 1312-13, 2678-79, 3263 64, 3268-69). Dr. Singh opined that as a result of Plaintiff's chronic migraines, Plaintiff would be off task more than 21% of an 8-hour work day. (A.R. 1312, 2678, 3263, 3268). Dr. Singh also opined that Plaintiff is severely limited by pain or fatigue and would miss five or more days from work due to her condition. (A.R. 1313, 2679, 3264, 3269).
The ALJ found Dr. Singh's opinions unpersuasive, explaining that the opinions are “inconsistent with the medical evidence of record and other non-examining source opinions.” (A.R. 60). The ALJ stated that “The evidence suggests that the limitations caused by the impairments noted by Dr. Singh while not completely resolved with medical intervention, were significantly reduced.” The ALJ supported this finding by broadly citing to “Exhibits B7F; B11F/10; B20F; B22F/23; B34F; B38F; B41F; B45F; B51F; B57F; 60F; B65F/60-77, 133, 160, 248; B67F/7, 9; B68F; B73F; B75F/229-269; B77F; B81F; B83F.” (A.R. 60). The ALJ further stated that
the limitations opined by Dr. Singh are unsupported by his treatment record. Dr. Singh noted a significant reduction in the number of migraines the claimant was experiencing with regular Botox injections. Dr. Singh's examinations consistently noted increased muscle tone and TTP in the musculature of the head, neck, trunk, and shoulders. However, the remainder of the medical evidence of record was not as consistent. In fact, a significant number of treatment records revealed relatively normal PEs. The clinical findings contained in Dr. Singh's record do not support the
limitations opined. (Exhibits 3F; 16F; 34F; 45F; 67F; 73F; 77F).(Id.).
The exhibits cited by the ALJ above consist of hundreds of pages. The undersigned does not find that the records cited by the ALJ are self-evidently contradictory and thereby eliminate the need for additional explanation.
Plaintiff concedes that the Botox treatments have significantly reduced her migraine headaches. (Doc. 19 at 22). Plaintiff correctly recounts that Dr. Singh noted that following the Botox treatments, Plaintiff's went from having approximately twenty-one migraines a month to ten migraines over the course of the three-month periods between Botox treatments. (Id. at 21-22, citing 1382, 1860, 2588). Ninth Circuit precedent instructs that “[m]edical notes suggesting improvement should be viewed cautiously[.]” Black v. Saul, No. 20CV00772-NLS, 2022 WL 378425, at *9 (S.D. Cal. Feb. 8, 2022) (citing Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014)). Moreover, “while laboratory tests cannot prove the existence of migraine headaches, there are medical signs which should be viewed as ‘objective evidence,'” such as “nausea, photophobia, dizzy spells” and “impaired sleep[.]” Hua v. Astrue, No. 07-CV-02249-WYD, 2009 WL 524991, at *4 n.2 (D. Colo. Mar. 2, 2009). Plaintiff accurately observes that the record reflects that even with the Botox treatments, Plaintiff presented to the Emergency Room for treatment of headaches over twenty times since her 2018 benefits application. (Doc. 19 at 4, citing A.R. 1598, 1621, 1629, 1637, 1645, 1655, 1663, 1681, 1696, 1704, 1719, 1748, 1758, 1780, 1788, 1796, 1871, 2447, 2474, 2502, 2562, 2977, and 3130).
The ALJ did not sufficiently identify any specific evidence that contradicted or undermined Dr. Singh's opinions, nor did he sufficiently explain how the record as a whole is inconsistent with Dr. Singh's opinions. The undersigned agrees with Plaintiff that the ALJ provided legally insufficient reasons for finding Dr. Singh's opinions unpersuasive.
D. The ALJ's Decision Fails to Sufficiently Evaluate Plaintiff's Symptom Testimony
When evaluating a claimant's testimony regarding subjective pain or symptoms, the ALJ must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). In the first step, 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.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The claimant does not have to show that the impairment could reasonably be expected to cause the severity of the symptoms. Rather, a claimant must only show that it could have caused some degree of the symptoms. Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).
If a claimant meets the first step, and there is no evidence of malingering, the ALJ can only reject a claimant's testimony about the severity of his or her symptoms by offering clear and convincing reasons that are supported by substantial evidence in the record. Lingenfelter, 504 F.3d at 1036. In evaluating a claimant's symptom testimony, the ALJ can consider many factors including: a claimant's reputation for truthfulness, prior inconsistent statements concerning the symptoms, unexplained or inadequately explained failure to seek treatment, and the claimant's daily activities. Smolen, 80 F.3d at 1284; see also 20 C.F.R. § 416.929(c)(4) (Social Security must consider whether there are conflicts between a claimant's statements and the rest of the evidence). In addition, although the lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in evaluating the testimony. Burch v. Barnhart, 400 F.3d 676 (9th Cir. 2005); see also 20 C.F.R. § 416.929(c); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).
Here, Plaintiff testified that her chronic migraines keep her “from being able to be out anywhere.” (A.R. 109-10). Plaintiff testified that although the Botox treatments have reduced the number of migraines, Plaintiff gets migraines approximately three to four times a week. (A.R. 84). Plaintiff testified that approximately once a week, she gets a migraine that is “really disabling” and Plaintiff has to “be in a dark room.” (A.R. 110, see also A.R. 84-85). Plaintiff also testified that she suffers from daily lumbar pain, which she treats with a TENS unit and by reclining in a chair for approximately 20-30 minutes at a time throughout the day. (A.R. 82-83, 111-13). Plaintiff also testified that she has anemia and suffers from dizzy spells and fatigue. Plaintiff stated that she gets unusually fatigued most days of the week. (A.R. 123). Plaintiff explained that although she does have a driver's license, she has not driven for years because of the risk that she may pass out. (A.R. 108).
The ALJ's decision recounts the two-step process in evaluating a claimant's symptom testimony. (A.R. 40-41). The ALJ found 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 for the reasons explained in this decision.” (A.R. 61). The ALJ ‘s decision then summarizes portions of Plaintiff's medical records. (A.R. 61-62). The decision erroneously recounts that medical records indicate that following Botox treatments, Plaintiff “reported a decrease in the number of migraines and good relief for three months.” (A.R. 61) (emphasis added). The records actually state that Plaintiff reported that the “[f]irst 2 months are really good after botox.” (See, e.g., A.R. 1382) (emphasis added). Following the summary of portions of Plaintiff's medical records, the ALJ's decision states:
In summary, after careful consideration of the entire record, while giving reasonable consideration to the claimant's testimony and findings of the claimant's treating and examining physicians at Exhibits B1F-B84F, the undersigned concludes that neither the objective medical evidence of record or the claimant's own statements and activities supports a conclusion that she is unable to perform any substantial gainful activity at the light exertion level with additional postural and environmental, and non-exertional limitations as contained in the adopted residual functional capacity.(A.R. 62). The undersigned does not find that these are clear and convincing reasons for discounting Plaintiff's symptom testimony. First, although an ALJ may consider a lack of objective evidence in evaluating a claimant's testimony, a claimant's testimony of disabling symptoms cannot be discredited “merely because [it is] unsupported by objective evidence.” See Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (“[O]nce the claimant produces objective medical evidence of an underlying impairment, [the ALJ] may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain.”).
Second, although an ALJ is not required to perform a “line-by-line exegesis of the claimant's testimony,” a “summary of medical evidence . . . is not the same as providing clear and convincing reasons for finding the claimant's symptom testimony not credible.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (internal quotation marks and citation omitted) (ellipsis in original). As Plaintiff notes (Doc. 19 at 25), the ALJ did not explain which of Plaintiff's statements and activities of daily living support the ALJ's conclusion that Plaintiff is capable of performing substantial gainful activity. The ALJ's decision does not adequately detail how Plaintiff's daily activities translate to the ability to sustain competitive employment on a full-time basis. See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (explaining that “the mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping [and] driving a car, . . . does not in any way detract from her credibility as to her overall disability. One does not need to be ‘utterly incapacitated' in order to be disabled.”); Garrison, 759 F.3d at 1016 (stating that the Ninth Circuit has “repeatedly warned that ALJs must be especially cautious in concluding that daily activities are inconsistent with testimony about pain, 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”).
The Ninth Circuit has instructed that an “ALJ must state specifically which symptom testimony is not credible and what facts in the record lead to that conclusion.” Smolen, 80 F.3d at 1284. The Court cannot affirm an ALJ's decision on a ground not asserted by the ALJ. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (“A reviewing court may not make independent findings based on the evidence before the ALJ to conclude that the error was harmless.”). The ALJ's decision requires the Court to speculate as to the grounds for the ALJ's conclusion that Plaintiff's testimony conflicts with the medical evidence. See id. at 495 (court “cannot substitute [the court's] conclusions for the ALJ's, or speculate as to the grounds for the ALJ's conclusions. Although the ALJ's analysis need not be extensive, the ALJ must provide some reasoning in order for [the court] to meaningfully determine whether the ALJ's conclusions were supported by substantial evidence.”).
“The clear and convincing standard is the most demanding required in Social Security cases.” Moore v. Comm r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002). “Sheer disbelief” of the severity of a claimant's symptoms “is no substitute for substantial evidence.” Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004). The undersigned finds that the ALJ failed to provide specific, clear, and convincing reasons supported by substantial evidence for discounting Plaintiff's symptom testimony regarding her impairments. This error is harmful and alone requires remand.
E. Recommended Remand for Award of Benefits
Ninth Circuit jurisprudence “requires remand for further proceedings in all but the rarest cases.” Treichler v. Comm r of Soc. Sec. Admin., 775 F.3d 1090, 1101 n.5 (9th Cir. 2014). The Ninth Circuit, however, has adopted a test to determine when a case should be remanded for payment of benefits in cases where an ALJ has improperly rejected claimant testimony or medical opinion evidence. Id. at 1100-01; Garrison, 759 F.3d at 1020. This test is commonly referred to as the “credit-as-true” rule, which consists of the following three factors:
1. Has the ALJ failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion? Treichler, 775 F.3d at 1100-01.
2. Has the record been fully developed, are there outstanding issues that must be resolved before a disability determination can be made, or would further administrative proceedings be useful? Id. at 1101. To clarify this factor, the Ninth Circuit has stated that “[w]here there is conflicting evidence, and not all essential factual issues have been resolved, a remand for an award of benefits is inappropriate.” Id.
3. If the improperly discredited evidence were credited as true, would the ALJ be required to find the claimant disabled on remand? Id.; Garrison, 759 F.3d at 1020.
Where a court has found that a claimant has failed to satisfy one of the factors of the credit-as-true rule, the court does not need to address the remaining factors. Treichler, 775 F.3d at 1107 (declining to address final step of the rule after determining that the claimant has failed to satisfy the second step). Moreover, even if all three factors are met, a court retains the discretion to remand a case for additional evidence or to award benefits. Id. at 1101-02. A court may 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. In Treichler, the Ninth Circuit noted that “[w]here an ALJ makes a legal error, but the record is uncertain and ambiguous, the proper approach is to remand the case to the agency.” 775 F.3d at 1105.
After examining the record, the undersigned finds no outstanding issues of fact to be resolved through further proceedings. The VE testified that there would be no work for an individual who would be off-task more than ten percent of the work day or would miss two or more days per month. (A.R. 94). The VE's testimony establishes that if Plaintiff's symptom testimony and the opinions of Drs. Sy and Singh were credited as true, the ALJ would be required to find that Plaintiff is disabled. The undersigned does not find any material evidence in the record that creates serious doubt that Plaintiff is in fact disabled.Therefore, based on the record, the undersigned finds it inappropriate to remand the case for further proceedings. See Benecke, 379 F.3d at 595 (“Allowing the Commissioner to decide the issue again would create an unfair ‘heads we win; tails, let's play again' system of disability benefits adjudication.”); Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir. 2004) (“The Commissioner, having lost this appeal, should not have another opportunity to show that Moisa is not credible any more than Moisa, had he lost, should have an opportunity for remand and further proceedings to establish his credibility.”) (citation omitted). The undersigned recommends that the Court remand the case for an award of benefits.
In Defendant's Answering Brief, Defendant references a May 17, 2018 treatment record from Terros and asserts that it “directly contradict[s] allegations that Plaintiff had significant difficulty with her daily activities.” (Doc. 21 at 18, citing A.R. 633). The purpose of Plaintiff's visit at Terros was to assess her mental health. The assessment contains a check-the-box section for Activities of Daily Living. (A.R. 633). The “No” boxes were checked for whether Plaintiff needs assistance with bathing, grooming/hygiene, preparing food, mobility, housework, shopping, managing money, taking medications. However, Plaintiff testified that she uses the microwave, does her own laundry (but may require assistance if the basket is heavy), can perform light household chores like wiping the counters or watering the houseplants, and can take a shower. (A.R. 88, 108, 115, 116). Moreover, the Terros form states that Plaintiff's method of transportation is “one of [Plaintiff's] daughters or taxi” and that Plaintiff does not “go anywhere unless it's a doctor appointment.” This is consistent with Plaintiff's hearing testimony that she has not driven in years and that she will take a taxi to her doctor appointments, unless her mother or daughter are available to take her. (A.R. 88-89, 109). Further, the May 17, 2018 record states that Plaintiff meets the criteria for a diagnosis of bipolar disorder “as evidenced by [Plaintiff's] presenting symptoms of depressive episodes characterized by . . . fatigue; insomnia; poor concentration. (A.R. 636). The undersigned does not find that the May 17, 2018 record from Terros is materially inconsistent with Plaintiff's testimony or creates serious doubt that Plaintiff is disabled.
III. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Court reverse the Administrative Law Judge's September 23, 2022 decision (A.R. 33-74), as upheld by the Appeals Council (A.R. 1-6).
IT IS FURTHER RECOMMENDED that the Court remand this case to the Social Security Administration for an award of benefits.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.