Opinion
CV-23-08524-PCT-SPL (DMF)
05-02-2024
Nannette Lynn Blessing, Plaintiff, v. Martin O'Malley, Commissioner of Social Security Administration, Defendant.
HONORABLE DEBORAH M. FINE, UNITED STATES MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE:
This matter is on referral to the undersigned pursuant to 28 U.S.C. § 636(b)(1) and Rules 72.1 and 72.2 of the Local Rules of Civil Procedure. (Doc. 12)
At issue is the denial of Plaintiff Nannette Lynn Blessing's (“Plaintiff”) application for disability insurance benefits under the Social Security Act (“Act”). On August 7, 2023, Plaintiff filed a Complaint with this Court, seeking review of the denial of benefits. (Doc. 1) After careful review of this Court's record, including Plaintiff's Opening Brief (Doc. 17), Defendant Commissioner's Answering Brief (Doc. 21), Plaintiff's Reply Brief (Doc. 22), and the administrative record (Docs. 13, 14, “R.”), it is recommended that the final decision of the Commissioner of Social Security (“Commissioner”) be reversed and the matter be remanded for further administrative proceedings.
I. BACKGROUND
On January 16, 2015, Plaintiff filed applications for Title II disability insurance benefits and for Title XVI supplemental security income, alleging disability beginning on January 17, 2013. (R. at 15) Plaintiff's applications were denied initially on March 3, 2015 (R. at 140-43, Title II), and May 7, 2015 (R. at 144-47, Title XVI), and upon reconsideration (R. at 148-55). Plaintiff subsequently requested a hearing, which was held on December 18, 2017. (R. at 33-69) On June 14, 2018, Administrative Law Judge (“ALJ”) Kelly Walls issued a decision denying Plaintiff's applications. (R. at 15-26) The Appeals Council denied Plaintiff's request for review, at which point the ALJ's June 14, 2018, decision became final. (R. at 2-6) Following the unfavorable decision, Plaintiff filed a Complaint in this Court in case number 3:19-CV-08148-PCT-MTL. (R. at 1166-79) District Judge Michael T. Liburdi determined that the ALJ erred in discounting Plaintiff's symptom testimony and remanded this matter to the Social Security Administration (“SSA”) for further administrative proceedings. (Id. at 1178-79)
Upon remand to the SSA, the Appeals Council vacated the ALJ's June 14, 2018, decision and offered Plaintiff the opportunity for a new hearing and decision. (R. at 1182) Following a second hearing, held May 27, 2022 (R. at 1138-65), ALJ Kelly Walls issued a new, partially favorable decision on August 8, 2022, and found that Plaintiff was disabled as of January 1, 2017, but was not disabled prior to that date. (R. at 1109-29) The Appeals Council determined that the ALJ did not err in the ALJ's decision, at which point the ALJ's decision became final. (R. at 1098-1101) Following this unfavorable decision, Plaintiff filed the present appeal.
The ALJ determined that Plaintiff met the insured requirements of the Act through December 31, 2015. (R. at 1111) After considering the medical evidence and opinions, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since the alleged onset date, January 17, 2013. (R. at 1112) Since the alleged onset date, the ALJ found that Plaintiff had the following severe impairments: lumbar degenerative disc disease; internal derangement of the right knee, post-arthroscopy with partial medial and lateral meniscectomies, tricompartmental chondroplasty, resection of loose body, and minor synovectomy; a Baker's cyst of the right knee; and brittle diabetes with diabetic neuropathy. (Id.) Since January 1, 2017, the ALJ found that Plaintiff had the additional severe impairments: adhesive capsulitis and bursitis of the right shoulder postmanipulation under anesthetic and post-arthroscopy with bursectomy; diabetic neuropathy; and bilateral carpal and cubital tunnel syndromes. (Id.) Since January 17, 2013, Plaintiff did not have an impairment of combination of impairments that met or equaled an impairment listed in 20 C.F.R. § 404, Subpart P, Appendix 1. (R. at 1113-15)
The ALJ made two findings for Plaintiff's residual functional capacity (“RFC”): prior to January 1, 2017, and on or after January 1, 2017. In assessing Plaintiff's RFC prior to January 1, 2017, the ALJ found that Plaintiff's symptom testimony was not fully supported by the evidence of record. (R. at 1116-20) The ALJ gave great weight to the opinion of agency medical consultant Yosef Schwartz, M.D.; gave some weight to the opinion of consultative examiner Justin Garrison, D.O.; gave partial weight or little weight to the November 2015 opinions of Plaintiff's treating provider Theron C. Tilgner, D.O.; gave less weight to the opinion of agency medical consultant Krishna Mallik, M.D.; and gave limited or little weight to the January and February 2013 opinions of Plaintiff's treating provider Eung-Jun Cha, M.D. (R. at 1120-21) Ultimately, the ALJ determined that prior to January 1, 2017, Plaintiff had the RFC to perform sedentary work, except plaintiff could occasionally push, pull, operate foot controls with the right lower extremity, climb stairs and ramps, balance, stoop, or crouch; required a single crutch or cane to ambulate and for balance; could never kneel, crawl, or climb ladders, ropes, or scaffolds; and must avoid concentrated exposure to extreme cold, wetness, vibration, and hazards, including uneven terrain, moving machinery, and unprotected heights. (R. at 1115)
The ALJ found that on or after January 1, 2017, Plaintiff's symptom testimony was consistent with the evidence of record. (R. at 1122-25) The ALJ gave some weight to the opinion of independent medical examiner Anthony C. Theiler, M.D.; gave little weight to the February and October 2017 opinions of Plaintiff's treating provider Dr. Tilgner; and gave no weight to the December 2017 opinion of Dr. Tilgner. (R. at 1125-26) Ultimately, the ALJ determined that beginning on January 1, 2017, Plaintiff had the RFC to perform sedentary work except Plaintiff could occasionally push, pull, operate foot controls with the right lower extremity, climb ramps or stairs, and reach with the dominant right upper extremity; requires a single crutch or cane to ambulate and for balance; could never climb ladders, ropes, or scaffolds, kneel, or crawl; and must avoid concentrated exposure to extreme cold, wetness, vibration, and hazards, including uneven terrain, moving machinery, and unprotected heights. (R. at 1122)
Relying on the testimony of a vocational expert, the ALJ determined that prior to January 1, 2017, Plaintiff could perform past relevant work as a data entry clerk. (R. at 1126-27) However, beginning on January 1, 2017, the ALJ determined that Plaintiff's RFC prevented Plaintiff from performing past relevant work, that Plaintiff did not have transferable skills, and that no jobs existed in significant numbers that Plaintiff could perform. (R. at 1127-28) Consequently, the ALJ found that beginning on January 1, 2017, Plaintiff became disabled and continued to be disabled through the date of the ALJ's decision. (R. at 1128) Because Plaintiff did not become disabled until January 1, 2017, after the date last insured of December 31, 2015, the ALJ found that Plaintiff was disabled for the purposes of Title XVI Supplemental Security Income (“SSI”) but was not disabled for Title II Social Security Disability Insurance benefits (“SSDI”). (Id. at 1128-29)
II. LEGAL FRAMEWORK
A district court only reviews the issues raised by the party challenging an ALJ's decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). If the court finds that the ALJ's decision was not based on substantial evidence or was based on legal error, the court may set aside the decision. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence requires “more than a mere scintilla but less than a preponderance” and should be enough evidence “as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). An ALJ's decision should be upheld if “evidence is susceptible to more than one rational interpretation,” but a district court should “consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Id. (quotations and citations omitted).
In determining whether a claimant is disabled under the Act, the ALJ must follow a five-step analysis. 20 C.F.R. § 404.1520(a). First, the ALJ must determine whether a claimant is participating in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled. Id. Second, the ALJ determines if a claimant has a “severe medically determinable physical or mental impairment.” 20 C.F.R. § 404.1520(a)(4)(ii). If not, the claimant is not disabled. Id. Third, the ALJ determines whether the claimant's impairment meets or equals a listing in Appendix 1 of Subpart P of 20 C.F.R. § 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the ALJ will find the claimant disabled, and the inquiry ends. Id. If the ALJ must proceed to step four, the ALJ determines whether the claimant's RFC allows the claimant to perform past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If so, the claimant is not disabled. Id. If the ALJ must proceed to step five, the ALJ determines whether the claimant's RFC allows the claimant to perform other work. 20 C.F.R. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled. Id.
III. ANALYSIS
Because the ALJ found that Plaintiff became disabled on January 1, 2017, Plaintiff challenges only the ALJ's determination that she was not disabled during the period from January 17, 2013, through December 31, 2016. (Doc. 17 at 2) Plaintiff raises two issues for the Court's consideration: (1) that the ALJ erred in rejecting the 2015 opinion of her treating provider Dr. Tilgner, and (2) that the ALJ erred in rejecting Plaintiff's symptom testimony. (Id. at 1) Plaintiff requests that the Court remand her case for payment of benefits or, in the alternative, remand for further proceedings. (Id. at 24-25) The Commissioner asks the Court to affirm or, if the Court finds error, to remand for further proceedings. (Doc. 21 at 13)
A. Theron C. Tilgner, D.O.'s, Opinion
Plaintiff first argues that the ALJ failed to provide specific and legitimate reasons supported by substantial evidence to reject the November 2015 opinion of her treating provider Theron C. Tilgner, D.O., and in doing so erred in rejecting Dr. Tilgner's opinion. (Doc. 17 at 14-19)
1. Legal Standard
Plaintiff filed her applications on January 16, 2015. (R. at 15) For disability benefit applications filed prior to March 27, 2017, SSA regulations classify acceptable medical sources into three types: (1) treating physicians (who treat a claimant), (2) examining physicians (who examine but do not treat a claimant), and (3) non-examining physicians (who do not examine or treat a claimant). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally, opinions from treating physicians are entitled to greater weight than those from examining physicians, while non-examining physician opinions receive the least weight. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). If certain evidence contradicts a treating or examining physician's opinion, the ALJ must provide “specific and legitimate reasons supported by substantial evidence” for rejecting that physician's opinion. Lester, 81 F.3d at 830-31.
2. November 2015 Opinion of Theron C. Tilgner, D.O.
In November 2015, Dr. Tilgner completed a “Medical Assessment of Ability to Do Work Related Activities.” (R. at 790-92) Dr. Tilgner opined that Plaintiff could sit for four hours continuously and for eight hours total in an eight-hour work day and that Plaintiff could stand or walk for one hour at a time or for four hours total in an eight-hour work day. (R. at 790) Dr. Tilgner stated that Plaintiff required the assistance of a crutch. (Id.) Dr. Tilgner opined that Plaintiff could occasionally lift or carry up to 10 pounds; could rarely lift or carry more than 10 pounds; could rarely stoop, squat, crawl, or climb; could continuously reach; could continuously grasp, push, pull, or use fine manipulation of both hands; and could use her left foot for repetitive movements, but not her right foot. (R. at 790-91) Plaintiff had a total restriction on unprotected heights, being around moving machinery, occupational driving, exposure to dust, fumes, and gases, and exposure to marked changes in temperature or humidity. (R. at 791) Plaintiff would also be severely limited in her activities by pain and fatigue, which was equivalent to being off-task for more than 15% of the work day. (R. at 792) Dr. Tilgner asserted that his opinion was based on information in Plaintiff's medical records from both Dr. Tilgner and outside sources; clinical observations; labs and other diagnostics; and Dr. Tilgner's knowledge of Plaintiff's diseases and disorders. (Id.)
3. ALJ's Findings
The ALJ gave partial weight to Dr. Tilgner's November 2015 opinion, finding that Dr. Tilgner's opinion was “generally consistent with the medical evidence of record with regard to essentially a sedentary” RFC. (R. at 1120-21) However, the ALJ gave no weight to Dr. Tilgner's opinion as to how often Plaintiff would be off-task during a work day, because “there are no reports of cognitive difficulties with concentration, memory, etc.” (R. at 1121)
4. Discussion
The ALJ did not provide specific and legitimate reasons to discount Dr. Tilgner's November 2015 opinion. Plaintiff does not challenge the ALJ's determination that Dr. Tilgner's opinion was “generally consistent” with evidence that supported a sedentary RFC. However, the ALJ provided no substantial evidence to support giving no weight to Dr. Tilgner's opinion insofar as Dr. Tilgner estimated Plaintiff's time off-task. Although the ALJ stated that the record contained no evidence of difficulty with concentration or memory, Dr. Tilgner asserted that Plaintiff's off-task time would result from Plaintiff's pain and fatigue. Dr. Tilgner's own treatment notes reflect Plaintiff's pain that Dr. Tilgner asserted underlies his assessment of time off-task. (See, e.g, R. at 699-701, 868-69, 87677, 887, 901) See also Shaylene B. v. Comm'r of Soc. Sec., 2019 WL 5580100, at *3-4 (W.D. Wash. Sept. 27, 2019). The Commissioner asserts that treatment records between 2013 and 2022 show that Plaintiff had intact memory, denied fatigue, difficulty concentrating, remembering, or making decisions, was in no acute distress, and had intact thought process. (Doc. 21 at 11) However, the ALJ cited no evidence in the record to support a finding that Plaintiff had no cognitive difficulties that caused her to be off-task. This Court cannot uphold the ALJ's decision based on post-hoc rationale cited only by the Commissioner, not by the ALJ. 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.”).
In failing to provide specific and legitimate reasons supported by substantial evidence to discount Dr. Tilgner's November 2015 opinion, the ALJ erred.
B. Plaintiff's Symptom Testimony
Plaintiff next argues that the ALJ failed to provide specific, clear and convincing reasons to reject her symptom testimony. (Doc. 17 at 19-24)
1. Legal Standard
When evaluating subjective symptom testimony, an ALJ must first find objective medical evidence demonstrating an impairment that could reasonably cause a claimant's symptoms. Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996); 20 C.F.R. § 505.1529(a)-(b). A claimant's subjective testimony alone will not establish a disability, and an ALJ will determine whether the claimant's alleged limitations are consistent with medical sources. 20 C.F.R. § 404.1529(a). Once the claimant has shown such an impairment, if there is no evidence of malingering, the ALJ may reject a claimant's symptom testimony only if the ALJ offers “specific findings stating clear and convincing reasons for doing so.” Smolen, 80 F.3d at 1283-84. The specific, clear, and convincing reasons must be supported by evidence in the record. Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015). Although an ALJ may consider the objective medical evidence, the ALJ may not use a lack of such evidence as the sole basis to discount a claimant's testimony. Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009); 20 C.F.R. § 404.1529(c)(2). An ALJ may also consider a “claimant's daily activities, inconsistencies in testimony, effectiveness or adverse side effects of any pain medication, and relevant character evidence.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995); 20 C.F.R. § 404.1529(c)(3). If “the evidence is susceptible to more than one rational interpretation[,]” the Court will uphold the ALJ's conclusion. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (superseded by statute on other grounds).
2. Plaintiff's Symptom Testimony
In May 2015, Plaintiff completed an Exertional Daily Activities Questionnaire. (R. at 274-77) Plaintiff reported that on an average day, she could make food to eat, read, watch TV, and communicate with family or visitors, but she could not drive, was confined to her home, had to elevate and ice her legs a few times daily to prevent swelling, and could not do much without pain or risk of falling. (R. at 274) Plaintiff stated that she had difficulty walking and balancing, had numbness in her feet, right calf, and knee, that her knee and ankle would “lock” and collapse, had pain when standing and walking, even when wearing a knee brace or using a crutch, and had difficulty sitting or standing without assistance. (Id.) Plaintiff did not walk much and walked slowly due to her knee brace, her crutch, and her pain. (Id.) Plaintiff also had difficulty lifting and carrying, although she could carry light grocery bags in one hand if utilizing a brace or crutch, and she had to be careful because her leg could give out at any time and her balance was very poor. (R. at 275) Plaintiff did not do her own grocery shopping, but she tried to do some laundry every couple of days, cooked her meals, and had someone else help with household chores. (Id.) Plaintiff tried to do chores for an hour until she became sore and her knee or ankle gave out, but if she was on her feet too long, Plaintiff had a lot of swelling. (Id.) Plaintiff also tried to water a few potted plants on her patio every day. (Id.) Because she did not have an automatic car and driving a manual car was too difficult, Plaintiff did not drive. (Id.) Prior to her impairments, Plaintiff could perform her chores, but due to pain and discomfort, she no longer could perform them without assistance. (Id.) At night, Plaintiff slept for a couple of hours, so she sometimes fell asleep during the day. (Id.) Plaintiff took several medications, including baclofen, hydrocodone, Flexeril, Humalog, Prilosec, and meloxicam. (Id.) In order to support her knee while sitting, standing, and walking, Plaintiff reported wearing a knee brace daily, except for when sleeping or applying ice and elevating her leg, and Plaintiff used a crutch while walking to take weight off her knee, keep her balance, and prevent falls. (R. at 276) As her condition continued, Plaintiff found it harder to control her diabetes, as she had gained weight, could not exercise, and could not participate in her former activities. (Id.) Plaintiff also reported that her medications make her tired, that pain in her leg and foot made sleeping difficult, and that if she sat too long, her swelling worsened, requiring her to lie down and use ice several times a day. (R. at 277) Plaintiff stated that she repeatedly fell, which caused additional pain, and experienced muscle spasms and severe leg cramps, especially at night. (Id.) If Plaintiff stood or sat too long, her leg and feet became swollen, stiff, and sore. (Id.) Plaintiff could not bend her knee or ankle much and therefore could not squat or kneel, and because she had no muscle control in most of her right leg and foot, her left leg bore most of her weight and became sore and tired, along with her back. (Id.) Plaintiff had not been able to bear weight on her right leg or place her right foot flat on the ground since an accident in January 2013. (Id.) Further, Plaintiff had numbness in her fingertips, causing difficulty grabbing, feeling small items, holding items, and tying shoes. (Id.)
At the first ALJ hearing in December 2017, Plaintiff testified that she lived in a house with stairs and could not “step up them off the ground” because her leg would hurt and give out. (R. at 40) Plaintiff had a drivers' license but stopped driving in 2013, so her boyfriend or mother drove her around. (R. at 41) Plaintiff testified that she stopped working in 2013 due to an injury. (R. at 46-47) Plaintiff's right knee would swell, collapse, and lock up, and she experienced neuropathy in her feet, pain and limited movement in her shoulders, and difficulty maintaining her diabetes. (Id.) Plaintiff used her crutch at the first ALJ hearing and had been using her crutch since 2013. (R. at 47) Plaintiff's doctors had recommended additional knee surgery, such as a full knee replacement, but Plaintiff did not know how successful another surgery would be. (Id.) Plaintiff had neuropathy in both feet up to her knees, and her neuropathy caused foot and calf numbness, tingling, and shooting pain. (R. at 47-48) As for Plaintiff's right shoulder, she testified that she had a frozen shoulder and had some improvement with physical therapy, but then Plaintiff had another fall in the shower and hurt her shoulder again. (R. at 48, 60) Plaintiff underwent shoulder manipulation under anesthetic, as well as an orthoscopic surgery. (R. at 48) After the orthoscopic surgery, Plaintiff testified that her shoulder movement was decreasing and becoming painful. (R. at 49) Because she could only lift her right arm a little without pain, Plaintiff had help doing her hair and put on her shirt by sliding it up over her feet. (Id.) Plaintiff was also starting to have pain and limited movement in her left shoulder, but she had no treatment or imaging on the left shoulder yet. (R. at 50) On a typical day, Plaintiff testified that her pain was a 7-8 out of 10. (Id.) Due to diabetes, Plaintiff had low blood sugar, causing confusion, shakiness, and weakness at least four times a week, and she experienced high blood sugar almost every day, causing sleepiness, extreme thirst, and nausea. (R. at 50-51) Plaintiff took oxycodone, morphine, and Humalog insulin, and she experienced tiredness and nausea as side effects. (R. at 51) Aside from her crutch, Plaintiff used a walker a couple times a week if she had to walk a distance or carry something. (R. at 51-52) Plaintiff always used her crutch, could not walk well without it, and had difficulty holding an item in her right hand while using the crutch under her left arm. (R. at 52) Physical therapy helped Plaintiff to gain some more strength in her shoulder and knee, but Plaintiff still had pain. (Id.) On a typical day, Plaintiff ate something, elevated and iced her leg every couple of hours, and had assistance dressing and showering, although Plaintiff also used a shower chair. (R. at 52-53) Plaintiff tried to dust at home and could make simple soup, but her boyfriend or mother would usually cook. (R. at 53) Plaintiff went to the grocery store with her mother or boyfriend twice a month, but she got tired quickly and sometimes had to sit or use an electric scooter. (Id.) Plaintiff could not reach to high shelves, could reach straight in front of her with difficulty, could place light items in a basket, and could pick up at most a pound or two, such as a tray of chicken breasts. (R. at 54) Plaintiff had no outside activities or hobbies, spent most of her day laying down and sitting while watching TV or listening to the radio, and let her boyfriend take care of her dog. (R. at 55)
Plaintiff also testified at the first ALJ hearing that she could only stand for 10-15 minutes with her crutch and could walk less than a football field's length without stopping. (R. at 56) Plaintiff could sit for 15-30 minutes before her back and legs went numb, and she stated that Dr. Tilgner recommended elevating her legs for neuropathy and knee problems. (R. at 57) Most of the day, Plaintiff kept her legs elevated, and she lay down every few hours for a half hour up to two or three hours at a time, depending on the day and her pain. (R. at 57-58) Plaintiff testified that she had been on an insulin pump since 1995, and her blood sugars had not varied as much in the past. (R. at 58) After Plaintiff's knee injury, she had more difficulty controlling her blood sugar due to lack of activity and steroid injections. (R. at 58-59) Plaintiff did not feel as though she could sustain full-time work because of her difficulty of movement, her collapsing knee, her diabetes and low blood sugars, and her leg swelling which required constant elevation. (R. at 61)
At the second ALJ hearing in May 2022, Plaintiff testified that she lived with her fiance and was unable to drive because she could not feel the pedals with either foot. (R. at 1144-45) Plaintiff stated that she had not worked since 2013 because of pain in her knee, legs, and feet, numbness, and an inability to stand and walk for very long. (R. at 1148-49) Plaintiff testified that she took oxycodone, baclofen, promethazine, gabapentin, meloxicam, and insulin from a pump, but these medications caused nausea, extreme tiredness, and difficulty focusing and functioning. (R. at 1149) Plaintiff testified that she used a cane and a walker because she could not stand for long without falling when she used a crutch, and Plaintiff wore a knee brace, as well. (R. at 1150) On a typical day, Plaintiff testified that she did not do much, but she took her medications, ate something, and watched TV. (R. at 1150-51) Because she had difficulty dressing and showering, someone else had to assist Plaintiff with both activities. (Id.) Plaintiff's mother did Plaintiff's hair because Plaintiff had difficulty lifting her arms, and Plaintiff did no household chores aside from cleaning her dishes. (R. at 1151) When Plaintiff occasionally shopped for groceries, her mother or fiance accompanied her, and she could push a cart with few items in it because it helped Plaintiff balance and stand up. (Id.) Plaintiff could sometimes take items off the shelf, but the heaviest item she would pick up was a bag of cheese. (R. at 1151-52) Plaintiff was not involved in outside activities, but she did crossword puzzles or crafted cards. (R. at 1152) Since the first ALJ hearing in 2017, Plaintiff began to have no feeling in her feet and legs due to neuropathy, which affected her upper extremities, as well. (Id.) Plaintiff's pain had continued, and she would have to lay down multiple times a day and elevate her legs due to swelling. (R. at 1153) Plaintiff stated that she fell almost daily, any time she did not use a walker or cane, and she had bruises and cuts from her falls. (R. at 1153-54) After falling, Plaintiff went to the hospital once or twice for a knee X-ray to ensure her knee had not gotten worse. (R. at 1154) Plaintiff testified that she could only stand for three to five minutes, could walk less than 100 yards before needing to stop, and could sit for half an hour if she had her legs elevated. (Id.) Plaintiff could reach with a lot of difficulty but could not reach for four to five hours a day, and Plaintiff's neuropathy caused difficulty gripping and grasping, such that Plaintiff dropped items of any size. (R. at 1155-56) Because of her neuropathy and pain down her arms, Plaintiff also had difficulty with fine manipulation tasks, such as buttoning clothes, tying shoes, and typing. (R. at 1156) Since the first ALJ hearing, Plaintiff had developed additional difficulties that she testified prevented her from working, including reaching, handling, fingering, and feeling things. (R. at 1156-57)
3. ALJ's Findings
The ALJ found that although Plaintiff's medically determinable impairments could reasonably cause Plaintiff's alleged symptoms, Plaintiff's statements regarding the intensity, persistence, and limiting effects of her symptoms were not fully supported prior to January 1, 2017. (R. at 1116) In doing so, the ALJ considered the objective medical evidence and made the following findings for the period prior to January 1, 2017.
Regarding Plaintiff's right lower extremity, the ALJ found that Plaintiff's impairments were not debilitating as alleged. (Id.) In January 2013, Plaintiff had a tender patella with soft tissue bruising and swelling, moderate hemarthrosis, an inability to do a straight leg raise with her right leg, and an inability to flex her knee. (Id.) One X-ray of the right knee in January 2013 showed an almost undisplaced transverse fracture at the inferior third of the patella; another X-ray later that month showed a distal fracture at the inferior third of the patella and a slight step deformity. (Id.) In treatment notes, Plaintiff was reported to have improved hemarthrosis, intact sensation, no sign of nerve injury, and improved soft tissue swelling, but Plaintiff continued to report numbness and had a step deformity in the fracture site. (Id. at 1116-17) In April 2013, Plaintiff had no bony tenderness or defect in her patella, but Plaintiff had limited range of motion due to the length of her immobilization. (Id. at 1117) Plaintiff was using crutches to walk, was weight bearing as tolerated, had poor muscle tone in her right quadricep, had no localized tenderness, and had decreased range of motion, so Plaintiff was advised to do exercises to build up her quadriceps, to walk on her own as much as possible, and to elevate her leg at night. (Id.) A right knee X-ray in April 2013 showed that a transverse inferior patella fracture had almost healed. (Id.) Later in April 2013, Plaintiff had medial joint margin tenderness, some stiffness, pain with twisting, a positive McMurray's test, a positive Tinel's test in the common peroneal area at the fibular neck, and peroneal weakness on resisted ankle eversion. (Id.) Plaintiff had no significant sign of ligamentous instability or injury, and Plaintiff was advised to continue physical therapy and be partially weightbearing on her crutches. (Id.)
In May 2013, a right knee MRI showed significant and increased abnormal bone marrow signal of the distal left femur, consistent with a bone bruise; a possible nondisplaced fracture; a possible partial tear or grade 2 tendinitis of the proximal portion of the medial collateral ligament, without significant distraction or separation; a grade 3 medial meniscal tear in the posterior horn; localized irregularity of the lower pole of the right patella suggestive of subacute healing; a nondisplaced fracture with localized edema and mild thickening of the infrapatellar tendon without complete tear or retraction; and moderate joint effusion with possible hemarthrosis. (Id.) Treatment notes from June 2013 reflected providers' concern for Plaintiff developing disuse syndrome of her right leg, which needed exercise rehabilitation. (Id.) In January 2014, treatment notes reflected improvement and adequate functional range of ankle movement, but Plaintiff's ankle gave out, she experienced increased pain, and she was still weak, with 3-4/5 strength. (Id.) Plaintiff had some lower leg edema, no knee instability, and no effusion. (Id.) Plaintiff used one crutch, and her provider believed that Plaintiff had reflex sympathetic dystrophy (“RSD”). (Id.) In February 2014, Plaintiff had improved mobility and nearly full range of motion, but she also had mild pitting edema in the lower leg and hypersensitivity consistent with RSD, so Plaintiff was referred to a neurologist. (Id.)
In March 2015, Plaintiff was using a crutch and a right knee brace. (Id.) In April 2015, Plaintiff fell while in the shower, had diffuse tenderness to palpation in the knees and right upper ribs, and was unable to fully bend her knees, but she had no crepitus. (Id.) Later in April 2015, Plaintiff had tenderness to palpation in the knees and resisted range of motion. (Id.) Plaintiff had not seen her surgeon for a year and a half and had been using a single crutch without improvement in her leg, although she did not always use her crutch at home. (Id.) The ALJ stated that Plaintiff “had no treatment in the interim.” (Id.) Plaintiff also had chronic atrophy of her leg, especially her calf and thigh, could extend her knee to neutral but had pain when flexing beyond neutral, had some hyperextension when weightbearing, had chronic lower leg edema, and had hypersensitivity, but Plaintiff had no instability. (Id. at 1118) Plaintiff was again referred to see a neurologist for RSD. (Id.) However, a neurologist subsequently stated that Plaintiff did not have RSD. (Id.) In May 2015, Plaintiff was using crutches, but between May 2015 and September 2015, Plaintiff's “gait showed that she did not seem to really need crutches.” (Id.) Plaintiff continued to have right knee tenderness and decreased range of motion and strength, but no edema. (Id.)
In July 2015, Plaintiff had built up some strength and had less pain and better function, but Plaintiff had some chronic atrophy, some knee hyperextension, and crepitus when she maximally flexed her knee. (Id.) In August 2015, Plaintiff had an abnormal gait, had hyperextension in the right knee and external rotation in her right ankle, was not ambulatory without a crutch, had difficulty standing from sitting and getting on and off the examination table, and had 3/5 strength in her right lower leg, as well as decreased right knee range of motion. (Id.) In October 2015, Plaintiff had increased edema from the knee down, some diffuse leg and knee pain, and calf tenderness. (Id.) A November 2015 MRI showed a tear of the body and anterior horn of the medial meniscus; edema in the anterior tibial plateau; mild chondromalacia of the articular cartilage; a tear of the anterior horn of the lateral meniscus; mild patellar chondromalacia; moderate to large suprapatellar effusion; and edema and complex fluid collection, possibly with internal debris or soft tissue foreign bodies, which may have been a Baker's cyst. (Id.) In December 2015, Plaintiff was using crutches, although her gait did not require a crutch, and Plaintiff had right knee tenderness and decreased range of motion and strength, but no edema. (Id.)
In February 2016, Plaintiff underwent a right knee arthroscopy with partial medial and lateral meniscectomies, tricompartmental chondroplasty, resection of loose body, and minor synovectomy. (Id.) Two weeks later, in March 2016, Plaintiff was reported as much improved, including her flexion, but she still had hyperextension and was referred to physical therapy. (Id.) In July 2016, Plaintiff had a right knee injection. (Id.) Treatment notes reflected that Plaintiff was slowly improving, had less pain and better strength, was using a single-point cane, and had pain limited to the medial joint line. (Id.) Plaintiff was reported to have some increased muscle mass above the knee and mid-thigh, increased strength of 4/5, some knee hyperextension, and no instability or effusion, and Plaintiff was using a single crutch and weightbearing as tolerated. (Id.) In September 2016, Plaintiff had another right knee injection. (Id.) Plaintiff had a “very subtle” increase in muscle tone and strength, had hyperextension, and was wearing a brace. (Id.) Plaintiff stated that her pain was unchanged and had returned since her last knee injections. (Id.) In the same month, treatment notes reflected that Plaintiff used a crutch on her left side and walked in a slow, deliberate manner. (R. at 1119) Plaintiff had more hyperextension in the right knee than the left, had moderate generalized atrophy of the right leg, including her quadriceps and hamstrings, and had full right knee extension with crepitation, but Plaintiff's right knee joint was stable. (Id.) Plaintiff was able to bear weight and had a steady gait. (Id.) In October 2016, Plaintiff walked with a single crutch and wore a hinged knee brace but had no new pain or problems, nor were there new examination findings. (Id.) In November 2016, Plaintiff had some popliteal-area fullness, used a single cane and a knee sleeve, but had no new instability and no new muscular or neurovascular changes. (Id.)
As for Plaintiff's back impairments, the ALJ found that Plaintiff's limitations were not debilitating. (Id.) From May to September 2015, as well as in December 2015, Plaintiff had tenderness from L3-L5, sacroiliac joint tenderness, and trigger point pain. (Id.) From May to October 2015, as well as in December 2015, Plaintiff also had pain with palpation to the lumbar facets and bilateral sacroiliac joints. (Id.) However, in July 2016, a lumbar MRI was unremarkable. (Id.)
As for Plaintiff's neuropathy, the ALJ found that Plaintiff's limitations were not debilitating. (Id.) In June 2013, Plaintiff underwent an electromyogram (“EMG”) and nerve conduction velocity (“NCV”) test for both legs, which showed mild bilateral chronic radiculopathy at ¶ 1, moderate to severe bilateral sensory-motor peripheral neuropathy consistent with diabetic neuropathy, and mild right peroneal nerve injury/slowing without evidence of denervation. (Id.) In March 2014, an EMG/NCV test showed moderate to severe sensory-motor and autonomic small fiber peripheral neuropathy consistent with diabetic polyneuropathy, as well as mild L5 and or S1 radiculopathy on the right. (Id.) In June 2016, an EMG/NCV test showed moderate to marked mixed poly neuropathy, predominant in the left leg. (Id.) However, treatment notes reflected that Plaintiff was “non-compliant with medical care and caring for herself and her diabetes.” (R. at 1120)
The ALJ further found that the evidence of record did not support Plaintiff's testimony regarding difficulty sitting. (Id.) No significant objective evidence showed that Plaintiff complained to her doctors of difficulty with prolonged sitting, and Plaintiff's doctor stated that Plaintiff can sit up to eight hours. (Id.) The ALJ had “some concern” for Plaintiff's “overstatement of symptoms given her consistent use of a crutch/cane despite her doctors noting she does not actually use it to aid with her gait.” (Id.) Further, little objective evidence supported Plaintiff's need to elevate her legs. (Id.)
4. Discussion
In considering Plaintiff's treatment, the ALJ found that Plaintiff was “non-compliant with medical care and caring for herself and her diabetes.” (R. at 1120) However, the ALJ's cited treatment record is dated 2021, over four years after the ALJ found that Plaintiff became disabled in January 2017. (R. at 1712) The ALJ also found that Plaintiff underwent surgery and received injections in her right knee in 2016. (R. at 1118) However, the record does not reflect that Plaintiff improved after these injections. Although Plaintiff had some improvement after her February 2016 right knee surgery and her right knee injection in July 2016, Plaintiff continued reporting pain after an injection in September 2016. (R. at 869) The ALJ found that Plaintiff had reported that her pain was “unchanged and had returned since her previous injections.” (R. at 1119) To discount symptom testimony based on improvement with treatment, an ALJ “must show that the treatment was capable of providing lasting relief.” Lopez v. Colvin, 194 F.Supp.3d 903, 911 (D. Ariz. 2016). Given Plaintiff's continued reports of pain, swelling, and other symptoms following her injections, many of which the ALJ expressly acknowledged in summarizing the evidence of record, the ALJ did not show that Plaintiff's treatment provided lasting relief. The ALJ did not expressly address any other treatments or show that such treatments provided Plaintiff lasting relief. As such, the ALJ did not provide clear and convincing reasons to discount Plaintiff's testimony based on Plaintiff's treatment.
In the ALJ's assessment of the objective medical evidence, several of the ALJ's stated reasons for discounting Plaintiff's testimony are not sufficiently clear and convincing. For instance, the ALJ stated that Plaintiff's “gait showed that she did not seem to really need crutches,” and the ALJ had “some concern for [Plaintiff's] overstatement of symptoms given her consistent use of a crutch/cane despite her doctors noting she does not actually use it to aid with her gait.” (R. at 1118) If an ALJ provides substantial evidence to support a finding that a plaintiff does not require an assistive device, an ALJ will not have erred, but the ALJ did not do so here. See Terriquez v. Comm 'r of Soc. Sec. Admin., No. CV-19-00764-PHX-GMS, 2020 WL 13582506, at *4 (D. Ariz. Apr. 9, 2020). Instead, in summarizing the objective medical evidence, the ALJ expressly recognized that Plaintiff regularly used a cane, crutch, and/or knee brace from 2013-2016 and was noted to have an abnormal gait. (R. at 1117-19) The ALJ found that in July 2015, Plaintiff had not been using a crutch in her house, but the July 2015 treatment note reflects that Plaintiff told her provider that she supported herself on furniture and appliances when not using a crutch at home. (R. at 699-701) Moreover, the ALJ recognized that Plaintiff was not ambulatory without a crutch at an examination in August 2015, but the ALJ did not mention that Plaintiff nearly fell when not using a crutch at the same examination. (R. at 1118; see also R. at 705) In September 2016, the ALJ also found that Plaintiff could bear weight and had a steady gait, yet the ALJ did not recognize that Plaintiff was utilizing a cane and brace at the time. (R. at 1119; see also R. at 877) As such, the evidence of record does not support the ALJ's finding that Plaintiff did not require an assistive device such as a crutch or cane. This was not a clear and convincing reason to discount Plaintiff's testimony.
Next, the ALJ found that “there is very little in the objective evidence to support a need to elevate [Plaintiff's] legs.” (R. at 1120) Following Plaintiff's injury to her knee, in January 2013 Plaintiff's doctor Eung-Jun Cha, M.D., instructed Plaintiff to elevate her leg to reduce swelling and tightness and to prevent deep vein thrombosis. (R. at 314-15) In April 2013, Dr. Cha instructed Plaintiff to elevate her leg at night but to continue doing leg exercises, walking, cold-water treatment, and physical therapy. (R. at 330) Dr. Tilgner wrote in a letter to an unspecified recipient that Plaintiff had been under his care since January 2016 and that [i]n that time it has been communicated to [Plaintiff] to keep her right knee elevated and to apply ice as needed for her chronic knee swelling.” (R. at 1033) Dr. Tilgner's instructions for Plaintiff to elevate her knee do not appear in Dr. Tilgner's pre-2017 treatment records. However, the ALJ did not cite any of these records, nor did the ALJ explain what evidence might support-or fail to support-Plaintiff's need to elevate her legs. An ALJ must support a lack of credibility finding by “‘identifying] what testimony is not credible and what evidence undermines the claimant's complaints.'” Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (citing Lester, 81 F.3d at 834). The Court need not “comb the administrative record to find specific conflicts.” Id. As such, this was not a clear and convincing reason to discount Plaintiff's testimony.
As the ALJ correctly determined, the evidence of record does not reflect that Plaintiff had difficulty sitting prior to 2017. (R. at 1120) Notably, as the ALJ recognized, Dr. Tilgner stated in his November 2015 “Medical Assessment of Ability to Do Work Related Activities” that Plaintiff could sit for eight hours in an eight-hour work day. (R. at 790) However, this reason alone is not substantial evidence such that the ALJ could discount Plaintiff's testimony. The ALJ's remaining discussion of the objective medical evidence does not address specific instances of Plaintiff's testimony which the ALJ found to be inconsistent with the evidence of record. See Burrell, 775 F.3d at 1138. Even if the ALJ had provided sufficient, clear and convincing reasons based on the objective medical evidence, the ALJ could not properly reject Plaintiff's testimony solely due to a lack of support from the objective medical evidence. Burch, 400 F.3d at 681; see also De Nunez v. Comm'r of Soc. Sec. Admin., No. CV-19-02593-PHX-SPL, 2020 WL 1672765, at *3-5 (D. Ariz. Apr. 6, 2020) (no substantial evidence to reject plaintiff's testimony based on objective evidence alone); Brekke v. Comm'r of Soc. Sec. Admin., No. CV-19-05689-PHX-DJH, 2020 WL 4043514, at *3 (D. Ariz. July 16, 2020) (same). As discussed supra, the ALJ's reasoning regarding Plaintiff's treatment was insufficient. The ALJ did not address other factors in discounting Plaintiff's testimony. See Orteza, 50 F.3d at 750 (ALJ may consider daily activities, inconsistencies in testimony, effectiveness or adverse side effects of pain medication, relevant character evidence).
Because the ALJ did not provide clear and convincing reasons supported by substantial evidence to discount Plaintiff's testimony, the ALJ erred.
IV. CREDIT-AS-TRUE RULE
Plaintiff argues that the ALJ's errors require this Court to apply the credit-as-true rule and remand her case for computation of benefits. (Doc. 17 at 24-25) Although the ordinary remedy for reversible error is to remand the case for further administrative proceedings, the credit-as-true rule may apply in in rare circumstances where three conditions are present. Garrison, 759 F.3d at 1020. First, the record must be fully developed, and further administrative proceedings would not be useful to resolve ambiguities or conflicts. Id.; Treichlerv. Comm'rof Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014). Second, the ALJ must have failed to give “legally sufficient reasons for rejecting evidence,” including subjective testimony and medical opinions. Id. Third, if the discounted or rejected evidence was credited as true, the ALJ would be required to find that the claimant is disabled. Id. If all three conditions are met, the Court must “determine whether the record, taken as a whole, leaves ‘not the slightest uncertainty as to the outcome of [the] proceeding[.]” Treichler, 775 F.3d at 1101 (internal citations omitted). Even if all three conditions of the credit-as-true rule are met, the 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.
Although the ALJ failed to properly evaluate Dr. Tilgner's November 2015 opinion and Plaintiff's symptom testimony, further administrative proceedings would be useful to resolve ambiguities or conflicts, including Plaintiff's time off-task and ability to sit, and to further evaluate Dr. Tilgner's opinion and Plaintiff's testimony. As such, the credit-as-true rule does not apply.
V. CONCLUSION
The ALJ failed to provide specific and legitimate reasons supported by substantial evidence to discount the November 2015 opinion of Theron C. Tilgner, D.O. The ALJ also failed to provide clear and convincing reasons supported by substantial evidence to discount Plaintiff's symptom testimony. It is therefore recommended that the August 8, 2022, final decision of the Commissioner (R. at 1109-29) be vacated and that this case be remanded for further administrative proceedings.
IT IS THEREFORE RECOMMENDED that the August 8, 2022, decision of the ALJ (R. at 1109-29) be reversed.
IT IS FURTHER RECOMMENDED that this case be remanded to the Social Security Administration for further administrative proceedings.
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) of the Federal Rules of Appellate Procedure 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 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. The parties shall have fourteen days within which to file responses to any 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).