Opinion
CV-21-00460-TUC-JGZ (DTF)
12-21-2022
Melissa Buchanan, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable D. Thomas Ferraro, United States Magistrate Judge
Plaintiff Melissa Buchanan (Buchanan) brought this action pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3) seeking judicial review of the Commissioner of Social Security's final decision finding she was not disabled. (Doc. 1.) The parties have fully briefed the issues. (Docs. 19, 20, 21.) This matter was referred to the undersigned United States Magistrate Judge for a Report and Recommendation. (Doc. 16.) 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 this matter for further proceedings.
BACKGROUND
Buchanan was born in 1984. (AR 63, 178.) She graduated from high school and has worked as a dish washer, tanning salon manager, collection clerk, retail store assistant manager. (AR 55-57, 211, 398.)
Buchanan has suffered from mental health issues, including anxiety, bipolar disorder, hallucinations, paranoia, and schizoaffective disorder. (AR 340, 412, 422, 446, 486.) She also has a history of substance abuse for alcohol, methamphetamine, and cocaine. (AR 340.) She has reported multiple hospitalizations since 2008 because of her mental health. (AR 352.) In 2018, She was hospitalized with suicidal ideations. (AR 321.) In 2019, Buchanan again was hospitalized or held as a danger to herself. (AR 352.)
In October 2019 Buchanan began therapy with CODAC in Arizona. (AR 409.) On October 31, 2020, Buchanan's estranged husband brought her to the hospital because she had intentionally overdosed. (AR 484.) She had been noncompliant with her medication. Id. During the hospitalization, Buchanan agreed to a long-acting injectable to aid in medication compliance. (AR 702.) After the hospitalization, Buchanan received injection for her bipolar medication. (AR 452.) In February 2021, Buchanan reported drastic improvement. (AR 465.)
PROCEDURAL HISTORY
On September 26, 2019, Buchanan filed an application for Supplemental Security Income under Title XVI based on mental health issues. (AR 63.) Buchanan later amended the onset to the filing date, September 26, 2019. (AR 45.)
Buchanan's claim was denied initially on January 7, 2020, and again on reconsideration on May 15, 2020. (AR 73-74.) On March 30, 2021, Administrative Law Judge (ALJ) Yasmin Elias held an administrative hearing. (AR 40.) At the hearing, Buchanan and Vocational Expert (VE) Scott Nielson testified. (AR 41, 46, 54-55.)
On June 9, 2021, the ALJ issued her unfavorable decision. (AR 11.) At step one, the ALJ concluded Buchanan had not engaged in substantial gainful activity since September 26, 2019. (AR 16.) At step two, the ALJ determined Buchanan had the following severe impairments: bipolar II disorder, trauma and stressor disorder, and anxiety disorder. (AR 17.) The ALJ acknowledged the following nonsevere impairments: obesity and substance abuse disorders. Id. The ALJ also considered schizoaffective disorder and concluded it was not medically determinable. Id. At step three, the ALJ decided that none of Buchanan's impairments, alone or in combination, equal in severity those listed in 20 C.F.R. part 404, Subpart P, Appendix 1. Id. The ALJ considered whether Buchanan's mental impairments met the "paragraph B" and "paragraph C" criteria. (AR 17-19.)
Before step four, the ALJ found Buchanan had the residual functional capacity (RFC) to perform work at all exertional levels with some nonexertional limitations. (AR 19.) The ALJ stated Buchanan could follow simple and detailed, but uninvolved instructions, up to a reasoning level of two. Id. The ALJ noted Buchanan could apply those instructions throughout a workday. Id. The ALJ also said Buchanan could interact with public, coworkers, and supervisors if the interactions are occasional and superficial. Id. Finally, the ALJ concluded Buchanan could adapt to changes in a routine work setting. Id.
At step four, the ALJ resolved that Buchanan could not perform her previous relevant work. (AR 22-23.) At step five, the ALJ determined that someone with Buchanan's age, education, work experience, and RFC could perform positions existing in significant numbers in the national economy. (AR 23-24.) Specifically, the ALJ settled Buchanan could work as an industrial cleaner (night cleaner), an advertising materials distributer, or a cleaner, housekeeping. (AR 24.) Thus, the ALJ resolved Buchanan was not disabled. Id.
On October 28, 2021, the Appeals Council denied Buchanan's request for review. (AR 1-3.) On November 11, 2021, Buchanan filed a complaint challenging the ALJ's unfavorable decision. (Doc. 1.) This Court has jurisdiction pursuant to § 405(g).
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. § 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)).
Even if the ALJ made an error, courts may affirm if the error was harmless; in other words, if it was "inconsequential to the ultimate nondisability determination." Fordv. 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))).
ISSUES ON REVIEW
Buchanan argues the ALJ's decision was not supported by substantial evidence or free from legal error. (Doc. 19 at 2.) Specifically, Buchanan asserts the ALJ failed to provide a clear and convincing reason supported by substantial evidence to discount her symptom and limitation testimony. Id.
DISCUSSION
For an ALJ to discredit a claimant's testimony they 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." Id. (quoting Garrison, 759 F.3d at 1014). The claimant need not present objective evidence of the symptom itself (e.g., pain), or of its severity. Garrison, 759 F.3d at 1014 (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)).
Second, absent evidence of malingering, an ALJ can only reject the claimant's testimony as to the severity of their symptoms by offering specific, clear and convincing reasons. Id. at 1014-15. "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, to support a finding discrediting the claimant's credibility, an ALJ must point to specific facts in the record. Burrell, 775 F.3d at 1138. An ALJ must also link the testimony to the record supporting the non-credibility determination. Brown-Hunter, 806 F.3d at 494. An ALJ cannot reject a claimant's symptom testimony "solely because the available objective medical evidence does not substantiate [their] statements." 20 C.F.R. § 416.929(c)(2).
Here, in November 2019, Buchanan filled out an adult function report. (AR 247.) She reported having extreme social anxiety and paranoia that prevented her from focusing and completing tasks in a timely manner. Id. She described her normal day as getting up, drinking coffee, reading an affirmation, and repetitively cleaning. (AR 248.) She stated that she had trouble with directions but that she was able to cook. (AR 249.) Buchanan went out to shop once a week and would do other things if she was accompanied. (AR 250-51.)
At the hearing, Buchanan described her paranoia with technology and her hallucinations. (AR 46.) She reported having memory loss, issues with organization, and rapid speech. Id. She also mentioned that two of her children had been placed with family members because of her mental health and substance issues. (AR 49.) She noted that, after her hospitalization in November 2020, she had changed her medication and increased her therapy, participating in both individual and group sessions. (AR 51-52.)
In determining Buchanan's RFC, the ALJ concluded Buchanan's "medically determinable impairments could reasonably be expected to cause the alleged symptoms." (AR 20.) The ALJ then determined Buchanan'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. The ALJ noted Buchanan was "fully oriented, with intermittent eye contact, normal speech and mannerisms," "calm, with logical thought process," and had "good insight, judgment, concentration and fund of knowledge" at a medical exam. Id. The ALJ remarked that Buchanan's memory was assessed as poor and that she reported depressed mood and mixed delusions. Id. The ALJ described the consultative examiner's evaluation of Buchanan. Id.
The ALJ also summarized examinations from February to August 2020. Id. The ALJ noted Buchanan's noncompliant with her psychiatric medication had led to an intentional overdose on heroin and heavy alcohol use. Id. After inpatient treatment, Buchanan received injections, which had been effective against her auditory hallucinations. (AR 20-21.) The ALJ found that Buchanan's "failure to seek treatment that might improve symptoms is inconsistent with [her] statements regarding the alleged intensity, persistence, and limiting effects of symptoms." (AR 21.) The ALJ noted a lack of "persistent attempts to obtain relief"' for Buchanan's reported auditory hallucinations, paranoia, and anxiety. Id. The ALJ also pointed to "significant improvement" when Buchanan was treated with injectables instead of daily pills, indicating Buchanan had not been compliant with the daily pills. Id.
Buchanan argues the ALJ failed to provide a clear and convincing reason for discounting her symptom testimony. (Doc. 19 at 6-10.) Specifically, Buchanan contends the ALJ's reasons are not supported by substantial evidence and are contrary to both case law and Social Security Administration policy. Id. at 6.
First, the ALJ relied on Buchanan's failure to seek and comply with treatment consistent with her reported symptoms. (AR 21.) ALJs may consider an "unexplained, or inadequately explained, failure to seek treatment." Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007). Buchanan claims her mental disorders caused her to not seek the aggressive treatment she clearly needed. (Doc. 19 at 7-10.) Basically, Buchanan asserts she did not have support, understanding, or insight to access the necessary treatment until her suicide attempt. Id. This appears supported by the record, but the ALJ did not consider or rule on it. Additionally, Buchanan did not expressly raise this issue to the ALJ.
Related, Buchanan relies on SSR 16-3p: Titles II and XVI: Evaluation of Symptoms in Disability Claims to assert the ALJ was required to inquire why she did not seek treatment. (Doc. 19 at 10.) The Commissioner argues Buchanan was represented at the hearing and her attorney could have asked follow-up or clarifying questions. (Doc. 20 at 11.) The Commissioner also responds that the overall burden is on claimants, such that the ALJ did not have a duty to develop the record. Id.
SSR 16-3p indicates ALJs will consider and may actively ask for explanations regarding any inconsistency between treatment and alleged symptoms. SSR 16-3p Titles II and XVI: Evaluation of Symptoms in Disability Claims, https://www.ssa.gov/OP_Home/rulings/di/01/SSR2016-03-di-01.html ("We may need to contact the individual regarding the lack of treatment or, at an administrative proceeding, ask why he or she has not complied with or sought treatment in a manner consistent with his or her complaints."). It also states the Commissioner "will consider and address reasons for not pursuing treatment that are pertinent to an individual's case [and] will review the case record to determine whether there are explanations for inconsistencies in the individual's statements about symptoms and their effects, and whether the evidence of record supports any of the individual's statements at the time he or she made them." Id. Further, the Commissioner "will explain how [they] considered the individual's reasons in [their] evaluation of the individual's symptoms." Id. Recently, in an unpublished memorandum, the Ninth Circuit reversed the district court's judgment affirming the denial of benefits after an ALJ asked claimant about receiving specific treatment, when "the inquiry ended there." Eitner v. Saul, 835 Fed.Appx. 932, 933 (9th Cir. 2021). The Ninth Circuit has also explained that "it is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation." Garrison, 759 F.3d at 1018 n.24 (quoting Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996)). As such, the ALJ should have inquired as to whether Buchanan's mental health impairments hindered her treatment in either seeking it or complying with it. Hence, the ALJ erred, and this was not a clear and convincing reason to discount Buchanan's testimony.
Second, the ALJ noted Buchanan improved when treated with injectables. (AR 21.) Buchanan attacks this reason because she had already demonstrated difficulty with complying with treatment, including failing to understand how to maintain the treatment. (Doc. 19 at 11.) Further, Buchanan argues the injectable treatment was for a short period of time without indication of whether the improvement was long lasting or temporary. Id. ALJs must be careful when considering mental health issues because symptoms often wax and wane in the course of treatment. Garrison, 759 F.3d at 1017. The ALJ mentioned improvement in August 2020 and improvement after Buchanan intentionally overdosed in October. (AR 20-21.) These cover less than a year and are interrupted by a five-day inpatient hospitalization. (AR 20.) Further, ALJs must be aware that "improved functioning while being treated and while limiting environmental stressors does not always mean that a claimant can function effectively in a workplace." Garrison, 759 F.3d at 1017. Overall, this does not provide a clear and convincing reason for rejecting Buchanan's testimony.
Third, the ALJ considers Buchanan's daily activity in considering her symptoms when considering her "paragraph b" criteria at step three. (AR 18.) The ALJ mentioned that Buchanan could perform simple maintenance, prepare meals, shop, drive, handle her medical care, and interact appropriately with medical providers. (AR 18.) ALJs may discount claimants' testimony based on daily activities that contradict their testimony or that meet the threshold for transferable work skills. Orn, 495 F.3d at 639. These daily activities did not meet the threshold for transferable work skills, nor did they directly contradict Buchanan's testimony. As such, Buchanan's daily activity would not have been a clear and convincing reason to discount her symptom testimony. Accordingly, the ALJ failed to provide a clear and convincing reason for discounting Buchanan's symptom testimony.
The ALJ erred in discounting Buchanan's symptom testimony without providing clear and convincing reasons supported by the record. Therefore, 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)). If the ALJ had credited Buchanan's testimony, it is likely the outcome would have been different because she would require more absences than is permissible according to the VE. (AR 59-60.) Hence, the Court concludes this error was not inconsequential to the ultimate nondisability determination because changes in attendance could have altered the ALJ's conclusion. Thus, this matter should be remanded per Buchanan's request.
RECOMMENDATION
Based on the foregoing, the Magistrate Judge RECOMMENDS 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 21-00460-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).