Opinion
CV-22-00521-TUC-RCC (LCK)
02-02-2024
Greg Ray Tennison Plaintiff, v. Martin O'Malley,[1] Defendant.
REPORT AND RECOMMENDATION
Honorable Lynnette C. Kimmins United States Magistrate Judge
Plaintiff Greg Tennison filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security. (Doc. 1.) Before the Court are Plaintiff's Opening Brief, Defendant's Responsive Brief, and Plaintiff's Reply. (Docs. 24, 28, 29.) 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 award of benefits.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff filed an application for Disability Insurance Benefits (DIB) in February 2020, alleging disability from July 1, 2019. (Administrative Record (AR) 227.) Later, Plaintiff amended his alleged onset date to February 28, 2020, his last day of work. (AR 14, 41-42.) Between July 2019 and February 2020, Plaintiff continued his work as a manager at a health club, to the extent he was able to do so. (AR 274, 312-13.) He had worked in two similar positions in the past. (AR 312.) He also had worked in the California Conservation Corp for three years and had experience in vehicle sales. (AR 235, 274, 286, 312.) He was born in July 1958, making him almost 61 years of age at the alleged onset date of his disability. (AR 227.) Plaintiff's application was denied upon initial review (AR 65-89) and on reconsideration (AR 90-114).
A hearing was held on September 16, 2021 (AR 34-64), after which the ALJ found that Plaintiff was not disabled (AR 14-28). The ALJ determined Plaintiff had severe impairments of obesity, lumbosacral degenerative disc disease status post 2015 fusion and laminectomy, cervical spine degenerative disc disease, and right foot Morton's neuroma status post excision September 2020. (AR 16-17.) The ALJ concluded Plaintiff had the Residual Functional Capacity (RFC) to perform light work subject to the following limitations: only occasional climbing of ramps/stairs/ladders/ropes/scaffolds, stooping, kneeling, crouching, crawling; and only frequent balancing. (AR 20.) The ALJ concluded at Step Four, based on the testimony of a vocational expert (VE), that Plaintiff could perform his past work as a club manager, automobile salesperson, and vocational trainer. (AR 26-27.) The Appeals Council denied review of the ALJ's decision. (AR 1.)
STANDARD OF REVIEW
The Commissioner employs a five-step sequential process to evaluate DIB claims. 20 C.F.R. § 404.1520; see also Heckler v. Campbell, 461 U.S. 458, 460-462 (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). 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, he does not proceed to the next step. 20 C.F.R. § 404.1520(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
Plaintiff alleges the ALJ committed three errors: (1) improperly analyzed opinion evidence from NP Kate West; (2) failed to provide clear and convincing reasons for rejecting Plaintiff's symptom testimony; and (3) failed to find Plaintiff's mental impairments severe at Step Two.
Opinion Evidence by NP Kate West
The regulations governing cases filed after March 27, 2017, such as this one, state that an ALJ will consider all medical opinions and, at a minimum, articulate how she evaluated the opinions' supportability and consistency. 20 C.F.R. § 404.1520c(a) & (b). The governing regulations provide the following additional guidance regarding the factors of supportability and consistency:
(1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.
(2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.20 C.F.R. § 404.1520c(c). "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 v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022).
Plaintiff contends the ALJ erred in her evaluation of the opinion of NP Kate West, by failing to explain the supportability and consistency of the opinion and because there is not substantial evidence to support the ALJ's treatment of NP West's opinion. NP West completed a December 2020 medical source statement, in which she noted that she had been treating Plaintiff since September 2019. (AR 825.) NP West opined that Plaintiff could lift less than 10 pounds. (AR 824.) She stated that Plaintiff could stand and/or walk less than 2 hours in a workday, and sit less than 6 hours in a workday, because staying in one position greater than 15 minutes increased Plaintiff's back pain. (AR 824-25.) In conjunction with the above finding, NP West stated that Plaintiff would need to alternate sitting and standing. (AR 825.) She limited Plaintiff to occasional climbing and balancing; no stooping, kneeling, crouching, or crawling; two-thirds of a day handling, fingering, and feeling; and limitations with respect to heights and moving machinery. (Id.) She stated that his condition was not going to improve. (Id.)
In a second medical source statement, dated January 2021, NP West offered similar opinions. (AR 831-32.) Here, the Court sets forth her opinions that varied from her first statement. She stated that Plaintiff could not sit or stand for more than 30 minutes without the need to change positions. (Id.) She cited an increase in Plaintiff's pain and numbness down his legs when he remained in one position. (AR 832.) She opined that Plaintiff could never climb or balance and could only occasionally reach. (Id.) She stated that climbing, balancing, and stooping would be unsafe due to pain and numbness. (Id.) She found that heights and moving equipment were problematic due to pain and neuropathy, and that temperature changes increased pain. (Id.) She noted that he was not a candidate for surgery. (Id.)
The ALJ found the limitations identified by NP West were not persuasive because they were not well supported or well explained, as they were set forth in a check-box form. (AR 24.) The ALJ stated that NP West's opinion was supported by her treating relationship with Plaintiff. (Id.) However, the ALJ found the opinion did not consider the entirety of the medical record. Further, the ALJ found the opinion was inconsistent with observations of the claimant ambulating normally, having grossly normal vibratory sensation at both large toes, and intact range of motion. (AR 24-25.)
The Court first examines the ALJ's discussion of supportability. The ALJ discounted NP West's opinion because it was a check-box form. (AR 24.) Contrary to the ALJ's characterization of NP West's opinion, there were numerous spaces on the form for explanation, most of which the nurse practitioner completed. (AR 824-25, 831-32.) She explained that Plaintiff could not lift more than 10 pounds due to neck and back pain. (AR 824.) She also explained that staying in one position for more than 15-30 minutes (such as driving to an appointment) increased his back and sciatic pain, which was the basis for her opinion regarding his limitations in standing, walking, and sitting. (AR 824-25, 831-832.) Additionally, leg numbness limited his ability to sit. (AR 832.) She stated that the postural limitations were based on Plaintiff's difficulty going from sitting to standing, and that he would be slow and off-balance changing positions; pain and numbness made climbing, balancing, and stooping unsafe; and kneeling, crouching, and crawling would be painful. (AR 825, 832.) Additionally, NP West stated that her environmental restrictions were based on pain, neuropathy, and leg weakness, which were contraindicative for climbing ladders or moving equipment. (Id.) To support her assessments she cited her own observations of Plaintiff limping and changing positions, as well as MRIs, x-rays, and an evaluation by surgeon Dr. Walker. (AR 825.) And, in concluding that he was not going to improve, she noted that he was not a surgical candidate. (AR 825, 832.) Based on review of NP West's medical source statements, the Court finds there is not substantial evidence to support the ALJ's finding that her opinion was not supported because it lacked explanation on her form.
Additionally, as this Court recently explained, "the supportability of a physician's opinion necessarily still includes a review of that doctor's treatment notes, not just the narrative explanation on the form." Curtin v. Comm'r of Soc. Sec. Admin., No. CV-21-00790-PHX-GMS, 2023 WL 387202, at *6 (D. Ariz. Jan. 25, 2023); Moreno v. Comm'r of Soc. Sec. Admin., No. CV-22-00319-PHX-DLR, 2023 WL 4926258, at *3-4 (D. Ariz. Aug. 2, 2023). It is error to reject a doctor's opinion as lacking explanation without examining whether the opinion reflects that practitioner's treatment notes. See Garrison v. Colvin, 759 F.3d 995, 1013, 1014 n.17 (9th Cir. 2014); cf. Trevizo v. Berryhill, 871 F.3d 664, 677 n.4 (9th Cir. 2017) (finding that "check-the-box" forms are not inherently unreliable). Thus, the Court looks to NP West's treatment notes and those of Dr. Walker, a surgeon to whom she referred Plaintiff for a second opinion, both of which she cited in support of her opinion.
In September 2019, NP West observed that Plaintiff was stressed and uncomfortable. (AR 767.) After an October 2019 examination, Dr. Walker documented that Plaintiff had mostly normal strength; decreased sensation over right lateral calf and foot; normal vibratory sensation in big toes; positive Hoffmans sign; clonus with left ankle jerk; a gait that was wide-based and unsteady, with a short stride; severe difficulty with tandem gait and did not perform heel or toe walk due to fall risk; and diffuse lumbar tenderness. (AR 499.) Dr. Walker diagnosed Plaintiff with moderate degenerative disc disease, chronic bilateral low back pain with sciatica, right leg numbness, weakness of right foot, gait instability, and generalized hyperreflexia. (AR 500.) In conducting his evaluations, he considered relevant MRIs and x-rays. (AR 499, 503-04.) When NP West completed her own physical, she found Plaintiff was experiencing mild distress due to pain and stress; tenderness in the bilateral paraspinal and lumbosacral regions; pain on motion; decreased response to stimulation of legs and feet; positive numbness to lower extremities; and gait, stance, and reflexes normal. (AR 778.) In subsequent appointments, NP West documented Plaintiff walking with a limp (AR 782, 836), changing positions due to pain (AR 782), and having trouble standing straight due to pain and spasms (AR 836). Based on review of NP West's opinion and her supporting treatment notes, the ALJ erred in finding that her opinion lacked supportability and there is not substantial evidence to support the ALJ's finding on that factor.
Second, the Court examines the ALJ's finding that NP West's opinion was not consistent with other evidence of record based on examinations during which Plaintiff exhibited a normal gait. One record was from a July 2018 visit to a prior primary care provider. (AR 440.) Because Plaintiff was still working full-time in July 2018, and his alleged onset date was February 2020, the July 2018 record is of little evidentiary value. The remaining two citations do not reflect separate findings because they both document Plaintiffs gait at one June 19, 2020, appointment with NP West, see infra note 2. (AR 24 (citing 11F/7 (AR 718), 12F/8 (AR 778).) In contrast to the records cited by the ALJ, Plaintiff was found to have an altered gait at physical therapy in April 2019 (AR 582); an April 2019 appointment with his surgeon Dr. Sullivan (AR 474); an October 2019 appointment for a consult with surgeon Dr. Walker (AR 499); and September 2020 and December 2020 appointments with NP West (AR 782, 835-36). Because the ALJ cited only one record from the relevant time frame, which was from NP West herself, and several records from other providers documented Plaintiff with an abnormal gait, there is not substantial evidence to support the ALJ's finding that NP West's opinion was inconsistent with other record evidence that documented Plaintiff with a normal gait.
Next, the ALJ relied upon a finding that Plaintiff had grossly normal vibratory sensation at both great toes. (AR 24 (citing 6F/7 (AR 499), 11F/37 (AR 748).) Although the ALJ relied upon two different citations, they are duplicate records from the same October 2019 appointment with Dr. Walker. The ALJ did not explain the significance of that one normal finding, or with what portion of NP West's opinion it was inconsistent. It is unclear the relevance of Plaintiff's intact vibratory sensation, when Dr. Walker documented numerous abnormal findings: Plaintiff was a poor historian; very anxious; decreased sensation over right lateral calf and foot; positive Hoffmann signs; clonus with left ankle jerk; gait that was wide-based and unsteady, with a short stride; severe difficulty with a tandem gait; no heel or toe walk due to fall risk; and diffuse lumbar tenderness. (AR 497, 499-500.) There is one record from a podiatrist who found Plaintiff's neurologic sensation was grossly intact, but he noted Plaintiff's report of numbness, tingling, and burning in his foot. (AR 810.) In addition to the abnormal sensory finding by Dr. Walker, as noted above, Dr. Sullivan found, in April 2019, that Plaintiff had patchy sensory changes to his right foot (AR 474); a physical therapist found, in April 2019, that Plaintiff had bilateral L5/S1numbness (AR 583); and, in June 2020, NP West documented Plaintiff had decreased response to stimulation in leg and foot, as well as numbness to lower extremities (AR 778). Given the absence of explanation by the ALJ, there is not substantial evidence to support her finding that NP West's opinion was inconsistent based on one record documenting normal vibratory sensation.
With respect to range of motion, the ALJ cited one record from NP West herself. (AR 25 (citing 12F/8 (AR 778)).) An ALJ's consistency analysis is intended to examine whether a medical opinion is consistent with evidence from other sources, which is distinct from its supportability by the source's own records. 20 C.F.R. § 404.1520c(c). More importantly, the cited June 19, 2020, record offered only one statement about range of motion, which was "pain elicited by motion," not normal and intact range of motion as stated by the ALJ. (AR 778.) Numerous other records found lumbar range of motion limitations. An April 2019 physical therapy record documented restricted lumbar range of motion (AR 582); Dr. Walker's April 2019 examination revealed mild lumbar motion restriction (AR 474); a November 2019 physical therapy record documented impaired lumbar and hip range of motion (AR 518-19); and, at a December 2020 appointment with NP West, Plaintiff was unable to stand straight due to pain and spasms (AR 836). There is not substantial evidence to support the ALJ's finding that NP West's opinion was inconsistent with findings of normal range of motion. In sum, the ALJ's discussion of consistency was in error because it was not supported by substantial evidence.
There is a different record from NP West that indicates it also is from June 19, 2020, and it includes a physical finding that full range of motion is present. (AR 718 (11F/7).) The Court does not rely upon this version of the record because it is inconsistent with the other records from NP West. It is only two pages and does not appear to be complete. Also, the review of systems portion indicates Plaintiff had no complaints, which is not consistent with any other records from NP West. Finally, the ALJ did not cite this document when evaluating NP West's findings for consistency. (AR 25.)
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, 345346 (9th Cir. 1995) (requiring specificity to ensure a reviewing court the ALJ did not arbitrarily reject a claimant's subjective testimony); SSR 96-7p. "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). The ALJ found Plaintiff had satisfied part one of the test by proving impairments that could produce the symptoms alleged. (AR 25.) Next, if "there is no affirmative evidence of malingering, the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so." Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen v. Chater, 80 F.3d 1273, 1281, 1283-84 (9th Cir. 1996)). Here, the ALJ did not make a finding of malingering. Therefore, to support her discounting of Plaintiff's assertions regarding the severity of his symptoms, the ALJ had to provide clear and convincing, specific reasons. See Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014); Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2008) (quoting Lingenfelter, 504 F.3d at 1036).
In an adult function report from February 2020, Plaintiff reported that he could not sit or stand for any period, could not focus, and found it hard to make decisions. (AR 260.) On days he was able to stand or sit without pain, he would work; on other days, he would lay in a recliner and watch TV or read. (AR 261.) His sleep was impacted because it was hard to lay down. (Id.) He struggled to put on socks and shoes, and to clean himself after using the toilet. (Id.) Plaintiff stated that he did not need reminders for personal care or taking medication. (AR 262.) He did not prepare his own food because standing and reaching shelves was too hard, he did not do house or yard work, and he did no shopping. (AR 262-63.) He reported doing light laundry once a week for ten minutes; but if the laundry was heavy, his wife would lift it. (AR 262.) He was outside daily and could drive a car and go out alone. (AR 263.) He rarely went anywhere, but he spent time with his wife. (AR 264.) Plaintiff reported he was very limited or unable to lift, squat, bend, stand, reach, walk, sit, kneel, stair-climb, and concentrate. (AR 265.) He had become "short" with people. (Id.) He stated that he could walk 20-30 feet before needing a short pause. (Id.) He could concentrate for only 20 minutes if he was in a lot of pain. (Id.) He could follow spoken but not written instructions, and usually finished what he started. (Id.) He did not handle stress or change very well but got along with authority figures. (AR 266.)
Plaintiff completed a second adult function report in September 2020, which was very similar in content. In addition to his prior report, he stated that his imbalanced walking gait had caused knee and foot problems, leading to foot surgery. (AR 362.) He was no longer working and reported that his daily activities included showering, watching TV, sitting on the deck, and turning on water for the garden. (AR 363, 365.) He also stated that his wife generally drove him places, but he would drive if necessary. (Id.) In a July 2021 affidavit, Plaintiff averred that he could not sit or stand in one position for an extended period, including driving; experienced depression, insomnia, constant pain leading to mental fatigue, and numbness in legs and feet; required a hand-held shower to clean after using the toilet; experienced urge incontinence; frequently tripped and fell; experienced knee pain from his impaired gait; required railings or a cane for walking steps; had lost muscle mass; and lacked grip strength, stamina, and fitness. (AR 396-97.)
At the September 2021 hearing, Plaintiff testified that he continued to work after back surgery but was in frequent pain. (AR 50.) He lost his part-time job in February 2020 when the company was purchased by a colleague, who knew he had been missing work one to three days a week due to his impairments. (AR 45-46, 57.) Plaintiff testified that he could not work a more sedentary job, because he needed to change position often, his legs would go numb, he couldn't focus, and constant back pain caused him to be angry. (AR 5051.) He did not stand still for more than a short period and could sit in an office chair only for about 20 minutes at a time. (AR 49.) He reported an ability to walk for 15 to 20 minutes, with a break every 200 yards. (AR 48.) Plaintiff reported driving short distances about twice a month, but he did not like to drive because the high level of pain he experienced was distracting. (AR 39-40, 57-58.)
He testified that his back pain was constantly at the level of a 6-7. (AR 51.) He had taken Norco in the past, but it caused stomach and functional problems, and Gabapentin caused "crazy" side effects. (Id.) At the time of the hearing, he was taking aspirin and using THC. (Id.) He did not experience side effects from his current medications and was not in mental health counseling. (AR 48.) He had tried physical therapy, nerve blocks, ablation, acupuncture, and employed a TENS Unit. (AR 52.) Plaintiff stated that he tried not to lift anything, but maybe could lift 10 pounds. (AR 48.) He would unload the dishwasher, although it sometimes caused him to tweak his back, but he did no cooking. (AR 53.) Plaintiff stated that he used a cane once or twice a week. (AR 49-50.) He indicated that his wife had to help him with socks and shoes if they required tying. (AR 52-53.) He had to shower after bowel movements, because he could not clean himself. (AR 53.) He often needed to recline due to pain, including for regular naps due to poor sleep at night. (AR 54-55.)
The ALJ stated that she could not wholly accept Plaintiff's symptom testimony because it was inconsistent with the objective medical evidence. (AR 21.) In particular, the ALJ cited evidence that Plaintiff had retained substantial functionality, including a normal gait, good strength, good range of motion (or less restricted than his testimony), and good sensory functioning. (AR 21-24.) If the objective medical evidence fully explained a claimant's symptoms, then credibility would be irrelevant. Credibility factors into the ALJ's decision only when the claimant's stated symptoms are not substantiated by the objective medical evidence. SSR 16-3p. Thus, it is error for an ALJ to discount symptom testimony solely because a claimant's symptoms are not substantiated by the medical evidence. Id.; Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). The ALJ did not identify any other basis to discount Plaintiff's symptom testimony. This was error.
Defendant contends that the ALJ also discounted Plaintiff's symptom testimony based on Plaintiff's ongoing ability to drive a car and Plaintiff's performance of work after his alleged onset date. The ALJ did not rely on either of those factors in discounting Plaintiffs symptom testimony; therefore, the Court may not affirm on those rationales. See Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) ("We review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.") (citing Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014); SEC v. Chenery Corp., 318 U.S. 80, 87 (1943)); Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009). With respect to driving, the ALJ mentioned that Plaintiff could operate a motor vehicle in her discussion of the paragraph B criteria regarding his ability to adapt or manage himself. (AR 19.) And, again, in her Step Three analysis of listing 11.14 (peripheral neuropathy), because driving demonstrated good use of his upper extremities. (AR 20.) Neither of those discussions were linked to the ALJ's discussion of Plaintiff's symptom testimony. Additionally, Plaintiff's ability to drive was not inconsistent with his symptom testimony that he drove short distances as necessary.
Defendant contends the ALJ discounted Plaintiff's symptom testimony because he worked after his original alleged onset date. In his DIB application, Plaintiff alleged he became disabled as of July 1, 2019. (AR 227.) He continued to work at a level of substantial gainful employment until February 28, 2020, although he may have worked reduced hours in that 7-month period. Based on that work, Petitioner amended his onset date to February 28, 2020. (AR 41-42.) The ALJ discussed Plaintiff working from July 2019 to February 2020 in her decision only to clarify that the amended alleged onset date coincided with the date he ceased working. (AR 14, 16.) The ALJ did not connect this discussion to her findings regarding Plaintiff's symptom testimony. Further, because Plaintiff did not perform any work after his amended alleged onset date, ongoing work would provide no basis to discount his symptom testimony. As an additional matter, there is no conflicting evidence to undermine Plaintiff's testimony that he stopped working solely because he was unable to perform the work due to his impairments. (AR 45-46, 57, 392.) The ALJ's failure to provide clear and convincing reasons for discounting Plaintiff's symptom testimony was error.
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." INSv. 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 did not provide sufficient legal 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) if the evidence is credited, it is evident that the ALJ would be required to find the claimant disabled. Benecke, 379 F.3d at 594; 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 had been satisfied, because the ALJ rejected Plaintiff's symptom testimony and the opinion of NP West without legally valid reasons. As to the second factor, the Court is not aware of, and Defendant has not identified, any outstanding issues that must be resolved prior to a disability determination being completed. Although Defendant suggests there are "conflicts" in the evidence, he did not identify any matter to be addressed if the case were remanded for further proceedings. If the Court were to remand for further investigation or explanation, it would be solely for the ALJ to reconsider evidence she already has reviewed and rejected on a legally insufficient basis. A mulligan to re-evaluate the same evidence does not qualify as a useful purpose for a remand under the credit-as-true analysis. Id. at 1021-22.
Next, the Court evaluates the outcome of the disability analysis if the opinion of NP West and Plaintiff's symptom testimony are credited. Both NP West and Plaintiff stated that he could lift no more than 10 pounds occasionally, which means he would be unable to perform light work as found by the ALJ. 20 C.F.R. § 404.1567(b) (providing that light work requires an ability to lift 20 pounds, with frequent lifting of 10 pounds). To perform a full range of sedentary work, a claimant must be able to sit for approximately 6 hours of a workday and walk and stand for up to 2 hours in a workday. 20 C.F.R. § 404.1567(a); SSR 83-10. NP West opined that Plaintiff could stand/walk for less than 2 hours in an 8-hour workday; and his ability to sit was limited to 30-45 minutes, even with breaks. (AR 824-25, 831-32.) Plaintiff testified similarly that he could walk or sit for about 20 minutes before needing to change position, and he needed breaks when walking for even limited distances.
Because the evidence establishes that Plaintiff is unable to sit, stand, and walk in combination for an 8-hour workday, at any exertional level, he is unable to sustain employment. See Benecke, 379 F.3d at 596 (crediting as true and finding disability, even in the absence of vocational testimony directly on point, because was no basis on which an ALJ could find the person employable); Kenneth L. v. Comm'r, Soc. Sec. Admin., No. 1:21-CV-01651-HL, 2022 WL 6980825, at *8 (D. Or. Oct. 12, 2022) (finding disability necessitated by crediting as true a medical opinion that the claimant could sit, stand, and walk for a total of only 7 hours in a workday); Janet F. v. Comm'r of Soc. Sec., No. 2:17-CV-00419-MKD, 2019 WL 1338404, at *17 (E.D. Wash. Mar. 25, 2019) (finding the claimant disabled based on medical opinions that the claimant could not sit, stand, and walk for a total of 8 hours); Brownlee v. Colvin, No. 2:14-CV-1724 AC, 2016 WL 1090572, at *11 (E.D. Cal. Mar. 21, 2016) (finding a claimant disabled under the regulations themselves because she could not sit, stand, and walk for a combination of more than 4 hours in a workday, precluding even sedentary work). Additionally, the evidence establishes that Plaintiff could not perform the basic requirements of work for even 50% of an 8-hour workday, and the vocational expert testified that a person who was off task more than 15% of the time would be unemployable. (AR 62.) Therefore, crediting the testimony of the treating nurse practitioner and Plaintiff, the ALJ would be required to find Plaintiff disabled based on his inability to sit, stand, and walk for a full 8-hour workday.
Defendant argues that there is serious doubt as to whether Plaintiff is disabled. In support, Defendant cites to the ALJ's reliance on Plaintiffs ability to perform daily activities, and to his performance of work after the alleged onset date. The ALJ did not rely upon either of those things in concluding that Plaintiff was not disabled. Further, Plaintiff amended his onset date and performed no work after his alleged onset date, as found by the ALJ. (AR 14, 16.) Additionally, Plaintiff's activities of daily living were very restricted. He rarely went out, did limited laundry and dishes as his only household chores, and spent much of his time in a recliner. After a thorough review of the entire record, the Court does not have serious doubts as to whether Plaintiff is disabled. Therefore, the Magistrate Judge recommends that the District Court remand this matter for the award of benefits.
Because the Court has determined that Plaintiff is entitled to an award of benefits based on the resolution of two of the three claims he raised in the Complaint, the Court does not reach his third claim.
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-22-0521-TUC-RCC.