Opinion
CV-21-00278-TUC-JGZ (DTF)
07-27-2022
Wasan Ali, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable D. Thomas Ferraro United States Magistrate Judge.
Plaintiff Wasan Ali (Ali) brought this action pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3) seeking judicial review of the final decision by the Commissioner of Social Security (Commissioner) finding she was not disabled. (Doc. 1.) The parties have fully briefed the issues. (Docs. 21, 24, 25.) This matter was referred to the undersigned United States Magistrate Judge for a Report and Recommendation. (Doc. 14.) As more fully set forth below, based on the pleadings and the submitted administrative record (AR), the Court recommends the District Court, after its independent review, vacate the decision of the Commissioner and remand for further proceedings.
I. BACKGROUND
Ali was born in 1973. (AR 32.) She has completed high school and two years of college in Iraq. Id. In 2009, she immigrated to the United States. (AR 33.) In 2015, she returned to Iraq for a family emergency. (AR 173.) Her brother then "locked [her] in a room for more than a year and took [her] U.S. passport." Id. He assaulted and threatened to kill her. Id. She was able to escape with the help of a friend, and the United States embassy 1 helped her return to Tucson, Arizona, in May 2018. Id.
On December 26, 2018, Ali filed for Supplemental Security Income under Title XVI due to depression, cervical and lumbar spine 4th and 5th, and migraines. (AR 46-47, 147.) Through her attorney, Ali amended the onset date to December 26, 2018. (AR 31.) Her claim was initially denied on May 16, 2019, and again on reconsideration on July 18, 2019. (AR 61, 82.)
Ali then requested a hearing. (AR 99.) On September 3, 2020, Administrative Law Judge (ALJ) Laura Speck Havens held an administrative hearing. (AR 27.) At the hearing, Ali and Vocational Expert (VE) Laurence Hughes testified. (AR 28, 31, 37.)
On October 22, 2020, the ALJ issued her unfavorable decision. (AR 10.) At step one, the ALJ determined Ali had not engaged in substantial gainful activity since the application date. (AR 15.) At step two, the ALJ found that Ali had the following severe impairments: degenerative disc disease, migraine headaches, left shoulder impingement and rotator cuff tendonitis, depressive disorder, anxiety disorder, and PTSD. (AR 15-16.)
At step three, the ALJ concluded Ali did not have an impairment or combinations of impairments that meets or is equal in severity to one listed in 20 C.F.R. Part 404, Subpart P, App. 1. (AR 16.) The ALJ considered paragraph B criteria for Ali's mental impairments. Id. The ALJ concluded that the criteria were not satisfied. (AR 17.)
Between steps three and four, the ALJ decided Ali had a residual function capacity to perform medium work with some exceptions. Id. The ALJ explained that Ali could only occasionally push and pull with left upper extremity and only occasionally reach vertically and horizontally with left upper extremity. Id. Further, the ALJ pronounced that Ali could only occasionally be exposed to heights, moving machinery, loud noise, dust, fumes, smoke, and temperature extremes. Id. The ALJ also stated that Ali should never climb ladders. Id. The ALJ continued that Ali could "understand, remember, and carry out simple job instructions only with occasional interaction with coworkers and supervisors and no interaction with the public." Id.
At step four, the ALJ concluded that Ali could not perform her past relevant work 2 because the record did not establish if her past work was performed for sufficient time and at a substantial gainful activity. (AR 20-21.) At step five, the ALJ determined that there were jobs in significant number in the national economy that Ali could perform. (AR 21.) Thus, the ALJ concluded that Ali was not disabled. (AR 22.)
On June 9, 2021, the Appeals Council denied Ali's request for review. (AR 1-3.) On July 14, 2021, Ali filed a complaint challenging the ALJ's unfavorable decision. (Doc. 1.) This Court has jurisdiction pursuant to §§ 405(g), 1383(c)(3).
II. STANDARD OF REVIEW
Courts review only those issues raised by the party challenging the ALJ's decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). A person is disabled if their "physical or mental impairment or impairments are of such severity" that they are unable to do both their previous work and, considering their "age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists" in their immediate area, whether a specific job vacancy exists for them, or whether they would be hired if they applied for work. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
Courts 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 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 ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); see Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004). Substantial evidence "must be more than a mere scintilla but may be less than a preponderance." Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (quoting Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012)). Courts must consider the record as a whole and "may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014) (quoting Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012)). 3
Even if the ALJ made an error, courts may affirm if the error was harmless; in other words, it was "inconsequential to the ultimate nondisability determination." Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)). "A reviewing court may only consider 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.'" Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018) (quoting Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014)); see Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (stating courts cannot "affirm the denial of benefits on a ground not invoked by the Commissioner in denying the benefits originally" (quoting Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001))).
III. ISSUES ON REVIEW
Ali presents two issues. (Doc. 21 at 2.) First, she argues the ALJ did not articulate clear and convincing reasons for discounting her symptom testimony. Id. at 2, 6-9. Ali particularly points to her migraines and mental impairment symptoms. Id. at 7-8. Second, Ali challenges the ALJ's consideration of supportive opinion evidence. Id. at 2, 10-15. Specifically, Ali asserts that the ALJ discounted the opinion and findings of her primary care provider Dr. Nicolette Barbour, MD, her mental health provider Nurse Practitioner Kathleen Oldfather, and the consultative examiner Dr. Noelle Rohen, Ph.D. Id. at 12-14. Ali requests these issues be remanded for reconsideration of the evidence. Id. at 15.
IV. DISCUSSION
A. Ali's Symptom Testimony
To discredit a claimant's testimony, ALJs must complete the following two-step analysis. Smith v. Kijakazi, 14 F.4th 1108, 1111 (9th Cir. 2021). "First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment 'which could reasonably be expected to produce the pain or other symptoms alleged.'" Garrison, 759 F.3d at 1014 (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). The claimant need not present objective evidence of the symptom itself (e.g., pain), or of its severity. Id. (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). 4
Second, absent 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." Id. at 1014-15 (quoting Smolen, 80 F.3d at 1281). "General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995), as amended (Apr. 9, 1996)); see also Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) ("[T]he ALJ never identified which testimony she found not credible, and never explained which evidence contradicted that testimony." (quoting Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015))). Thus, "[t]o support a lack of credibility finding, the ALJ [is] required to point to specific facts in the record." Burrell, 775 F.3d at 1138 (quoting Vasquez v. Astrue, 572 F.3d 586, 592 (9th Cir. 2009)). The ALJ must also link the testimony to the record supporting the non-credibility determination. Brown-Hunter, 806 F.3d at 494. "An ALJ . . . may not discredit the claimant's subjective complaints solely because the objective evidence fails to fully corroborate the degree of pain alleged." Coleman v. Saul, 979 F.3d 751, 756 (9th Cir. 2020).
Here, on February 10, 2019, Ali filled out an Adult Function Report with the help of a friend. (AR 166, 173.) Ali described that her depression and anxiety prevented her from interacting with people and caused impatience, forgetfulness, and lack of concentration. (AR 166.) She stated she had nightmares unless she took her medication, which caused her to be "lazy all day." (AR 167.) She reported that she would go outside for doctor appointments and grocery shopping. (AR 169.) She conveyed that she could go out alone. Id.
At the hearing, Ali testified that she had migraines "almost three times a week." (AR 35.) She described being in therapy before the pandemic and that after the pandemic started she took medication that made her "sleepy and tired." (AR 34.) Ali noted being afraid of people and not wanting to bother anyone. (AR 36.) 5
In the decision at step three, the ALJ analyzed the "paragraph B" criteria for Ali's mental impairments. (AR 16-17.) The ALJ explained that these limitations were not residual functional capacity assessments. (AR 17.)
Before step four, the ALJ determined Ali's RFC. Id. During this evaluation, the ALJ noted Ali alleged disability due to depression, cervical and lumber spine problems, and migraines. (AR 18.) The ALJ explained Ali alleged that "depression causes her to be impatient, lazy, forgetful, and scared of others" and that "she cannot concentrate or focus." Id. The ALJ then found that Ali's "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [Ali]'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." Id.
Then the ALJ discussed Ali's migraines. (AR 19.) The ALJ described that Nicolette Barbour, MD, reported Ali experienced one to two migraines per week, each lasting up to seventy-two hours, and that the migraines were severe. Id. Then the ALJ noted Ali had sought treatment for a headache in February 2019. Id. This treatment was from an emergency department. (AR 371.) The ALJ described that this headache had lasted two days and was associated with photophobia, nausea, and vomiting. (AR 19.)
The ALJ noted Ali had been diagnosed with PTSD, anxiety disorder, and depressive disorder. Id. The ALJ described two medical appointments, one in October 2018 and one in November 2018. Id. In October 2018, Ali's depression was described as well controlled, and she presented with appropriate mood and memory, had good insight and judgment, and fair concentration. Id. The ALJ then discussed a consultative examination from May 2019, in which Ali reported reliving abuse from her brother. Id. She was cooperative and made good eye contact. Id. Additionally, she scored a seventeen out of twenty-nine on a mini-mental status exam. Id. The ALJ acknowledged, "The examiner opined that the claimant would have significant limitations in concentration and interacting with others in a workplace." Id. The ALJ described that Ali was sometimes irritable during counselling 6 sessions but that her "judgment and insight were good, her speech was normal, her affect appropriate, her concentration fair, and her memory good." Id. Finally, the ALJ stated that "the record does not show the level of limitation [Ali] alleged [for her mental limitations] because she interacted normally with examiners, made good eye contact, had good insight and judgment, and fair to good concentration." Id.
Ali argues the ALJ failed to articulate clear and convincing reasons for discounting her symptom statements regarding her migraines and her mental health impairments. (Doc. 21 at 6-9.) The Commissioner disagrees and contends the ALJ provided sufficient explanation. (Doc. 24 at 11-13.)
The ALJ did not find there was evidence of malingering. (AR 18-19.) Thus, the ALJ was required to provide specific, clear, and convincing reasons for finding the statements to be not credible. See Garrison, 759 F.3d at 1014-15. The ALJ attempted to specify her reasons for finding Ali's statements "not entirely consistent" with evidence in the record for the mental limitations but failed do so for the migraines. (AR 18-19.) Merely summarizing Ali's medical records is insufficient. See Brown-Hunter, 806 F.3d at 494. The ALJ did not sufficiently linked specific facts in the record with the non-credibility determination. It is unclear what symptoms the ALJ is discounting and how much.
The ALJ notes that Ali's treating physician reported the migraines are severe and interfered with Ali's daily life and that Ali was observed to be uncomfortable and in mild distress. (AR 19.) The Commissioner would have the Court consider arguments not invoked by the ALJ. (Doc. 24 at 12-15.) The Court will not do so. See Luther, 891 F.3d at 875. The Commissioner also argued that the ALJ considered Plaintiff's treatment. (Doc. 24 at 13.) True, but this was done when considering the medical statements and was not connected to Ali's statements. (AR 19-20.) The ALJ did not explain her reasoning for discounting Ali's migraine testimony or reports.
As to Ali's mental health impairments, the ALJ noted that while Ali was sometimes irritable, her judgment and insight were good and her affect was appropriate. (AR 19.) The Commissioner argues this shows the ALJ found there was a course of improvement with 7 treatment. (Doc. 24 at 15.) This is inaccurate. The ALJ cited to a questionnaire from 2018, a report from May 6, 2019, and appointments from June and July 2020. (AR 19.) At the July 2020 appointment, Ali's affect was "apprehensive"-not appropriate. (AR 631.) Even at the June 2020 appointment, Ali complained of "increased depressed mood." (AR 628.) The cited record does not support the Commissioner's assertion that the ALJ found a course of improvement.
Additionally, the Commissioner argues the ALJ considered Ali's daily activities. (Doc. 24 at 15-16.) True, but this was done in step three and was not connected to Ali's statements. (AR 17-19.) Again, courts cannot rely on reasons outside the ALJ's decision. See Luther, 891 F.3d at 875. The ALJ seemed to discount all of Ali's reported mental limitations based on concentration, insight, ability to interact. (AR 19.) This is overbroad and lacks specificity. This does not explain how the ALJ considered Ali's reported impatience, laziness, or forgetfulness. The Court would recommend finding the ALJ failed to provide clear and convincing reasons for discounting the entirety of Ali's reported mental health limitations-even if she did explain why she discounted some of the mental health impairments.
Because the ALJ did err, the Court must consider whether the error was harmless or not. See Ford, 950 F.3d at 1154. "If the ALJ fails to specify his or her reasons for finding claimant testimony not credible, a reviewing court will be unable to review those reasons meaningfully without improperly 'substituting] our conclusions for the ALJ's, or speculating] as to the grounds for the ALJ's conclusions.'" Brown-Hunter, 806 F.3d at 492 (alterations in Brown-Hunter) (quoting Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014)). The ALJ explicitly considered and even included some of the limitations into Ali's RFC. (AR 17.) Specifically, the ALJ limited loud noise and limited interaction with coworkers, supervisors, and the public. Id. However, the ALJ did not explain if there needed to be limitations from lights or other migraine triggers. Id. Moreover, at the hearing, the VE explained that constant and repeated tardiness totaling more than eight hours a month would likely lead to termination. (AR 42-43.) Additionally, 8 the ALJ did not then consider Ali's alleged time off task or pace issues, which the VE stated only ten percent of time off task would be acceptable. (AR 42.) Hence, the Court concludes this error was not inconsequential to the ultimate nondisability determination because it could have altered the decision. Therefore, the Court recommends vacating and remanding the decision, as Ali requests.
B. Consideration of Opinions
In the past, the United States Court of Appeals for the Ninth Circuit mandated ALJs give treating practitioner's opinions "controlling weight," and there was a hierarchy of medical opinions. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). ALJs were required to provide "specific and legitimate reasons" to reject a treating or examining practitioner's opinion when another medical source's opinion contradicted it. Smith, 14 F.4th at 1114. In 2017, the regulations changed for claims filed on or after March 27, 2017. 20 C.F.R. §§ 404.1520c(a) ("We 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 your medical sources."), 416.920c(a) (same).
The Ninth Circuit recently stated "the 'specific and legitimate' standard is clearly irreconcilable with the 2017 regulations, the extent of the claimant's relationship with the medical provider-what we will refer to as 'relationship factors'-remains relevant under the new regulations." Woods v. Kijakazi, 32 F.4th 785, 790 (9th Cir. 2022). The ALJ must consider five factors when evaluating medical opinions or prior administrative medical findings. §§ 404.1520c(c) (listing supportability, consistency, relationship with the claimant, specialization, and other factors), 416.920c(c) (same). The ALJ must "articulate . . . how persuasive [they] find all of the medical opinions" and "explain how [they] considered the supportability and consistency factors." §§ 404.1520c(b), 416.920c(b). Supportability refers to the amount of relevant objective medical evidence and supporting explanations provided by the medical source. §§ 404.1520c(c)(1), 416.920c(c)(1).
Consistency mandates that the "more consistent a medical opinion(s) or prior administrative medical finding(s) is with" the record, "the more persuasive" the opinion or 9 finding will be. §§ 404.1520c(c)(2), 416.920c(c)(2).
Ali contends the ALJ failed to properly analyze NP Oldfather, Dr. Barbour, and Dr. Rohen's statements and opinions, including failing to provide specific and legitimate reasons for rejecting portions of them. (Doc. 21 at 10-15.) The Commissioner correctly argues the ALJ did not need to provide specific and legitimate reasons because Ali applied for disability after March 27, 2017. (Doc. 24 at 16-18.) Instead, the Commissioner asserts that the ALJ met the standard under the new regulations. Id. The Court disagrees that the ALJ met the new standard.
i. Dr. Barbour
Nicolette Barbour, M.D., M.P.H., was Ali's primary care provider. (AR 259, 376, 493, 554.) On January 9, 2019, Dr. Barbour filed out a Headache Residual Functional Capacity Questionnaire for Ali. (AR 349.) Dr. Barbour reported that Ali had been diagnosed with migraines. Id. She expanded that the migraines lasted three to five days and would distract and interfere with Ali's daily life. Id. She stated that the headaches occurred one to two times a week. Id.
In her decision, the ALJ evaluated Dr. Barbour's opinion. (AR 20.) The ALJ concluded that the record did not show that Ali experienced "migraines once or twice per week lasting three days." Id. The ALJ noted that Ali "occasionally sought treatment for migraines that had lasted more than one day, but she did not report, and the record does not show, that this was a normal, weekly occurrence." Id. Further, the ALJ stated that Dr. Barbour did not specify any limitations stemming from the migraines. Id.
The Commissioner argues Dr. Barbour's statement is not an opinion. (Doc 24 at 18.) The ALJ considered this a medical opinion and analyzed it accordingly. (AR 19-20.) Moreover, Dr. Barbour's statement does opine that Ali will have an inability to concentrate and have a potential for hospitalization. (AR 349.) Thus, this Court recommends considering and analyzing this as a medical opinion as did the ALJ. See 20 C.F.R. § 416.913(a)(2)(i).
The ALJ decided that Dr. Barbour's opinion was inconsistent with the treatment 10 record because Ali "did not report" that migraines lasting more than a day was a weekly occurrence. (AR 20.) However, on September 19, 2018, Ali stated the migraines were three to four times a month and lasted up to five days. (AR 379.) On November 7, 2018, Ali reported two migraines in the past week, each lasting two to three days. (AR 376.) And on February 19, 2019, Ali stated that she had one to two migraines a week that lasted two to three days. (AR 388.) The first two dates are prior to the alleged onset. (AR 31.) However, they still show a history and reports of migraines, and the ALJ stated that she "considered the complete medical history," which would include these records. (AR 14.) Thus, the ALJ's statement is not supported by substantial evidence because Ali did report migraines lasting more than a day as more than a weekly occurrence.
The Commissioner argues Dr. Barbour's opinion came before a medication adjustment, which resulted in Ali not seeking treatment for migraines until October 2019. (Doc. 24 at 18-19.) However, this reasoning was not in the ALJ's decision. (AR 20.) Hence, the Court will not consider it. See Luther, 891 F.3d at 875. Thus, the Court recommends finding the ALJ erred.
Because the ALJ erred, the Court must consider whether the error was harmless or not. See Ford, 950 F.3d at 1154. The Commissioner argues the limitations provided by Dr. Barbour are no greater than the RFC the ALJ provided; thus, the decision to disregard the opinion would be harmless. (Doc. 24 at 19-20.) Ali counters that the limitation to simple tasks is insufficient to account for an inability to function because of pain. (Doc. 25 at 6.) As explained above, the RFC includes limitations for loud noise and task complexity but did not fully account for Ali's alleged impairment from her migraines, such as light triggers. (AR 17.) Additionally, the VE has presented that there are limitations on absences from work, which the migraine limitation would surpass, and the ability to continue working. (AR 42-43, 349.) Therefore, the Court recommends finding the error is not harmless and remanding per Ali's request. 11
ii. NP Oldfather
On September 30, 2019, Kathleen Oldfather, N.P., began to treat Ali. (AR 610.) On the same day she filled out a Mental Residual Functional Capacity Assessment "RFC" form. (AR 443-45.) NP Oldfather noted many limitations, particularly related to hypervigilance, fear, and anxiety affecting Ali. Id. NP Oldfather specifically stated Ali would have extreme impairment in her "ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerance" because of "isolating and fear." (AR 444.) NP Oldfather only noted a marked impairment for ability to maintain attention and concentration for extended periods. Id. Moreover, NP Oldfather stated, "As noted for all previous sections, despite medication which has helped to a mild degree, [Ali] continues to experience PTSD." (AR 445.)
In the decision, the ALJ examined the prior administrative findings of NP Oldfather. (AR 20.) The ALJ concluded that Oldfather's findings related to concentration, persistence, interacting with others, understanding, remembering, or applying formation were not supported by the record. Id. The ALJ noted that the "majority of examinations showed [Ali]'s memory was normal and her concentration was fair to good" and "she interacted appropriately in examinations." Id. The ALJ concluded that Ali had a marked limitation when balancing Ali's reported fear of others and the objective observations of Ali's interactions. Id.
Ali asserts that the ALJ failed to discuss the factor of supportability regarding NP Oldfather's findings. (Doc. 21 at 13-14.) Ali also argues the ALJ failed to consider Ali's pace and persistence-focusing instead on concentration. Id. at 13.
NP Oldfather did not refer to other medical evidence, but she did provide explanations for her findings. (AR 443-45.) Most of the explanations involve Ali's isolation and fear. Id. The ALJ partially rejects this because she balanced Ali's reported fear with her interactions with others, such that the ALJ finds a marked limitation in interacting with others. (AR 20.) The Court reads this as undercutting the explanation and stating that the opinion was not highly supported. Thus, the Court rejects Ali's first argument. However, 12 the Court finds merit in the second argument.
Ali argues "It is unclear why NP Oldfather's statements about the effects of Ms. Ali's fear should be at least partially persuasive with respect to the domain of interacting with others but not with respect to the domain of persisting or maintaining pace . . . ." (Doc. 25 at 7.) The ALJ failed to provide any analysis as to a potential impairment in pace or persistence. (AR 20.) The ALJ was required to provide sufficient reasoning such the Court could review the decision. See Lambert, 980 F.3d at 1277 ("But the ALJ must provide sufficient reasoning that allows us to perform our own review, because 'the "grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based...... (quoting Treichler, 775 F.3d at 1102)). Because the Court cannot determine the ALJ's reasoning for pace and persistence, it finds the ALJ erred.
Because the ALJ erred, the Court must consider whether the error was harmless or not. See Ford, 950 F.3d at 1154. Frequent absences from work or significant time off task would not be tolerated. (AR 42-43.) Thus, if Ali has an extreme limitation in ability to maintain regular attendance, being punctual, or maintain a schedule (as NP Oldfather opined), then there may not be jobs in the national economy in sufficient numbers for her. Therefore, the Court recommends finding the error is not harmless and remanding per Ali's request.
iii. Dr. Rohen
On May 6, 2019, Noelle Rohen, PhD, examined Ali based on a request from the agency evaluating Ali's disability claim. (AR 410.) Ali reported nightmares and fear of going outside. Id. She reported that her friend helped her twice a week because she would not venture out alone. Id. Ali was concerned about the reason for the exam, but she was cooperative. (AR 411.) Dr. Rohen administrated a mini mental examination, in which Ali scored a seventeen out of twenty-nine. (AR 412.) This score was lower than anticipated for an educated person. Id. Ali was also irritable and snippy. Id. Dr. Rohen stated that Ali's anxiety did not appear to be will managed. Id. Dr. Rohen concluded that Ali had trouble in conversing, potentially because of an attention issue. (AR 413.) Dr. Rohen also stated that 13 Ali's persistence may be limited by pain and anxiety. Id. The evaluator stated that Ali could learn simple new tasks and that Ali might better tolerate a static supportive environment. Id.
In the decision, the ALJ analyzed statements from Dr. Rohen. (AR 20.) The ALJ resolved that the statements were not persuasive because they were vague and did not offer specific limitations or functional capacities. Id.
Ali tentatively concedes that some of Dr. Rohen's statements were vague. (Doc. 25 at 7.) Additionally, the Commissioner admits that some of Dr. Rohen's report was not vague or lacking in concrete limitations, as the ALJ stated. (Doc. 24 at 21.) The Commissioner limits this admission to Ali "can learn new tasks and avoid hazards." Id. However, this statement is substantially similar to other limitations, such as Ali "has trouble keeping on point and relevant," Ali "can understand basic instructions," Ali "has trouble keeping on point and relevant," and noting an issue with Ali's "confrontational style of demanding to know the point of the exam before writer had a chance to explain." (AR 413.) Thus, the Court finds that these statements are not vague and do present concrete limitations. Therefore, the ALJ erred.
The Commissioner contends any error would be harmless because Dr. Rohen's conclusions were adopted by Dr Chahal and the RFC was greater than the limitation found by Dr. Chahal. (Doc. 24 at 22-23.) This is unavailing. The Court will consider if Dr. Rohen proposed limitations greater than the RFC. The ALJ limited Ali's time with supervisors and public, which considers her "confrontational style." (AR 17.) However, the ALJ does not seem to account for time off task or Ali's limitation in "keeping on point." Id. The VE testified that ten percent of time off task would be problematic. (AR 42.) Thus, the Court cannot say that the error is harmless. Accordingly, the Court recommends remanding per Ali's request. 14
V. RECOMMENDATION
Based on the foregoing, the Magistrate Judge RECOMMENDS that the District Court, after its independent review, enter an order vacating the Commissioner's final decision and remanding this matter for proceedings consistent with its opinion.
This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Fed. R. App. P., should not be filed until entry of the District Court's judgment.
However, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a, d), 72(b). Thereafter, the parties have fourteen (14) days within which to file a response to the objections. No reply briefs shall be filed unless the District Court grants leave to do so. The Clerk of Court is directed to terminate the referral of this matter. Filed objections should bear the following case number: CV 21-00278-TUC-JGZ. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). 15