Opinion
CV-20-00343-TUC-CKJ (MSA)
10-18-2021
Brenda Kay Carnett, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
MARIA S. AGUILERA UNITED STATES MAGISTRATE JUDGE
Brenda Kay Carnett seeks judicial review of a determination by the Commissioner of Social Security Administration (Commissioner) that Carnett is not disabled within the meaning of the Social Security Act. 42 U.S.C. § 405(g). Carnett's appeal has been fully briefed. (Docs. 29, 35, 36.) For the following reasons, the Court will recommend that the Commissioner's decision be reversed and that this matter be remanded to the agency for reevaluation of Carnett's application.
Background
I. Procedural History
In 2017, Carnett filed an application for supplemental security income, claiming a disability onset date of July 18, 2017. (AR 36-37, 181-89.) Her application was denied initially in September 2017 and again on reconsideration in March 2018. (AR 67, 77.) In April 2018, Carnett requested a hearing before an administrative law judge (ALJ). (AR 117.) The hearing was held on July 18, 2019. (AR 32-65.) On July 31, 2019, the ALJ issued a written decision finding that Carnett is not disabled and denying her application. (AR 17-26.) On June 10, 2020, the Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. (AR 1-3.) Carnett initiated this action on August 13, 2020. (Doc. 1.)
“AR” refers to the certified administrative record.
II. Medical Impairments
Carnett is 55 years old. (AR 68.) She is obese. (AR 101.) She alleges that she is disabled because of osteoarthritis, rheumatoid arthritis, lupus, and chronic obstructive pulmonary disease (COPD). (AR 69, 182.) According to Carnett, her arthritis causes chronic pain in her back, legs, arms, and neck, which limits her ability to sit, stand, walk, and lift. (AR 236, 241.) She also asserts that, because of her COPD, she cannot walk more than five feet without losing her breath. (AR 236.) X-rays taken in February 2018 showed “[m]inimal” arthritic changes in Carnett's knees and hips and “[n]o significant abnormality” in her spine. (AR 642, 644, 646.) A pulmonary function test conducted in March 2018 showed that Carnett's lung functioning was essentially normal. (AR 648.)
III. Administrative Hearing
At the hearing, Carnett testified that she had not worked in 15 years because of her symptoms. (AR 56.) She explained that she stopped her education in seventh grade, and that she can read “[a] little” if “the words are small.” (AR 51-52.) Carnett testified that she lives with her daughter, who drives Carnett to appointments, reminds Carnett to take medications, and does all the housework and grocery shopping. (AR 43-44, 48.)
The ALJ observed that Carnett was using a rolling walker and inquired whether the walker had been prescribed. (AR 37.) Carnett responded that her primary care provider had suggested the walker, but that it was not prescribed or paid for by insurance. (AR 37-38.) Carnett explained that she used the walker to avoid falling due to intermittent loss of feeling in her legs. (AR 38.) She stated that this condition began with a tingling sensation and progressed to a loss of feeling, and that her doctors attributed it to arthritis, bone deterioration, and muscle weakness. (AR 40.) Carnett estimated that she had fallen approximately 45 times over the past few years. (AR 51.)
Carnett also discussed her COPD and lupus. (AR 41-42, 45-46.) As for her COPD, Carnett testified that she took medication using a nebulizer at least once per day (sometimes twice). (AR 41-42.) As for her lupus, Carnett explained that she broke out into painful welts when exposed to the sun. (AR 45-46.) She stated that each lupus flare lasted between two and four days and that flareups occurred two or three times per month. (AR 46.) She also stated that her medication did not work during flares, leaving her with no way to deal with the pain. (AR 46.)
The ALJ asked how often Carnett saw her rheumatologist, and Carnett responded that it had been more than one year since her last appointment. (AR 46-47.) Carnett attributed the delay to her daughter, stating that it was “hard” for her to set her own appointments and that it was “pretty much in [her] daughter's lap.” (AR 48.) Additionally, Carnett explained that she was awaiting a referral to a new rheumatologist, although she acknowledged that she had asked for the referral only recently. (AR 47-48.)
When asked about her physical limitations, Carnett testified that she could sit for 15 minutes at a time, stand for five minutes at a time without her walker, and stand for 20 minutes at a time with her walker. (AR 48-49.) She testified that she could lift a gallon of milk, but that even that level of exertion caused a pulling sensation in her back. (AR 49.) Carnett also stated that she had hand weakness, which caused her to drop things frequently. (AR 49.) According to Carnett, her symptoms led to mental health issues. (AR 56-57.) Carnett testified that she sought one-on-one counseling when a therapist came to her home for family therapy sessions. (AR 57.) (The family sessions concerned Carnett's autistic grandson. (AR 57.))
When asked to describe a typical day, Carnett testified that she got up from bed late, between 10:00 a.m. and 11:00 a.m., because she was usually up throughout the night due to pain. (AR 44-45.) She further testified that she needed help putting on pants, since she could not bend her legs without experiencing pain in her legs and back. (AR 43.) Carnett explained that, once she was up, she alternated between a chair and her bed as necessary to deal with headaches and pain in her legs, back, and bones. (AR 45.) She stated that she left her house only to attend medical appointments. (AR 45.)
The ALJ asked the vocational expert (VE) about a hypothetical claimant who had the same age, education, and work history as Carnett and who could perform light work with limitations, including no work on ladders, ropes, or scaffolds, occasional work on ramps and stairs, occasional kneeling, crouching, and crawling, and frequent balancing and stooping. (AR 57-58.) The VE testified that the hypothetical claimant could perform work as a marker, deli cutter, and housekeeping cleaner. (AR 58.) The VE confirmed that his testimony was consistent with the Dictionary of Occupational Titles. (AR 58.)
IV.ALJ Decision
The ALJ followed the five-step sequential evaluation process for determining whether a person is disabled. (AR 19-26.) At step one, the ALJ found that Carnett had not engaged in substantial gainful activity since the alleged onset date. (AR 19.) At step two, the ALJ found that Carnett had five severe impairments: COPD, arthritis, obesity, ischemic heart disease, and lupus. (AR 19-20.) At step three, the ALJ found that Carnett did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR 20-21.)
Between steps three and four, the ALJ determined that Carnett had the residual functional capacity to perform light work with the following limitations: she could not work on ladders, ropes, or scaffolds; she could occasionally work on ramps and stairs; she could occasionally kneel, crouch, and crawl; and she could frequently balance and stoop. (AR 21-24.) At step four, the ALJ found that Carnett had no past relevant work. (AR 24.) At step five, the ALJ found that Carnett could perform work as a marker, deli cutter, and housekeeping cleaner and therefore that Carnett was not disabled. (AR 25-26.)
Legal Standard
The ALJ's decision will be overturned only if “it is not supported by substantial evidence or is based on a legal error.” Wellington v. Berryhill, 878 F.3d 867, 871 (9th Cir. 2017) (citing Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010)). “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). “In reviewing the agency's determination, a reviewing court considers the evidence in its entirety, weighing both the evidence that supports and that detracts from the ALJ's conclusion.” Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018) (citing Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985)). “Where evidence is susceptible to more than one rational interpretation, the ALJ's decision should be upheld.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (quoting Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007)). The ALJ's decision may be affirmed “even if the ALJ made an error, so long as the error was harmless.” Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (citing Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)).
Discussion
I. Symptom Testimony
Carnett argues that the ALJ provided legally insufficient reasons for discounting her symptom testimony. When, as here, the claimant has a medically determinable impairment that could reasonably be expected to cause her alleged symptoms, and there is no evidence of malingering, the ALJ can reject the claimant's testimony “only by offering specific, clear and convincing reasons for doing so.” Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014) (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). “The clear and convincing standard is the most demanding required in Social Security cases.” Moore v. Comm'r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002). Here, the ALJ failed to meet this demanding standard.
A. Lupus Flares
Carnett testified that she experienced lupus flares two or three times per month, with each flare lasting between two and four days. (AR 46.) When asked to describe the flares, Carnett painted a dire picture: She testified that her skin “br[oke] out in welts, ” which made her feel like she was “sitting in a pit of fire.” (AR 45-46.) She also testified that her medications were ineffective during flares, leaving her to cope with the pain by “cr[ying], ” “rock[ing], ” and “pray[ing] to God a lot.” (AR 46.)
To reject this testimony, the ALJ was required to “specifically identify” it as not credible and “explain what evidence undermines” it. Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (citing Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)). Here, the ALJ did not specifically identify Carnett's testimony as not credible. In fact, aside from a single, generalized reference to “lupus flares a few times per month, ” Carnett's testimony is mentioned nowhere in the ALJ's decision. (AR 22.) And “[b]ecause the ALJ failed to identify the testimony [as] not credible, she did not link that testimony to the particular parts of the record supporting her non-credibility determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015). The ALJ's implicit rejection of Carnett's testimony is not supported by any reasons, let alone clear and convincing ones.
B. Shortness of Breath
Carnett testified that her COPD made her unable to “breathe when [she] walk[ed] more than five feet.” (AR 236.) In rejecting this testimony, the ALJ cited test results indicating only a “minimal obstructive defect” in Carnett's lungs, as well as examination results indicating “no increased work of breathing or signs of respiratory problems.” (AR 23, 648, 650-54, 800.) Although these results show normal lung functioning, it is well-established that “subjective [symptom] testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (citing 20 C.F.R. § 404.1529(c)(2)). As the ALJ did not connect this part of Carnett's testimony to any other evidence, the rejection of such testimony is not supported by substantial evidence.
C. Chronic Pain
Carnett testified that her arthritis caused chronic pain throughout her body, and that such pain severely limited her ability to stand, sit, walk, and lift. (AR 45, 236, 241.) The ALJ rejected this testimony by citing to various medical findings and by observing that Carnett “went more than a year without treatment and six months without medications.” (AR 22-23.) “[A]n unexplained, or inadequately explained, failure to seek treatment” can constitute a clear and convincing reason for rejecting symptom testimony. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). However, the ALJ may not reject the claimant's testimony “on this basis without considering possible reasons [the claimant] may not . . . seek treatment consistent with the degree of his or her complaints.” SSR 16-3p, 2017 WL 5180304, at *9 (Oct. 25, 2017). The ALJ must “explain how [she] considered the individual's reasons in [her] evaluation of the individual's symptoms.” Id. at *10.
Here, when asked about the delay in treatment, Carnett testified that she was waiting to be referred to another rheumatologist due to a disagreement with her current doctor. (AR 47-48.) Carnett also indicated that the delay was her daughter's fault, stating that it was “hard” to set her own appointments and that it was “pretty much in [her] daughter's lap.” (AR 48.) Although the ALJ elicited this explanation during Carnett's hearing, it is not mentioned in the ALJ's written decision. This makes it impossible to determine whether the explanation was properly considered, or whether the ALJ simply ignored it (as the ALJ did with Carnett's lupus testimony).
The Commissioner argues that Carnett's proffered explanation is implausible and inconsistent with the actions of someone who is in severe pain. While this may well be true, reasons not actually given by the ALJ cannot support the ALJ's conclusion. See Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (stating that judicial review is constrained to “the reasoning and factual findings offered by the ALJ”). The ALJ did not indicate “how [she] considered [Carnett's] reasons” for the delay in treatment, so the delay cannot support the rejection of Carnett's testimony. SSR 16-3p, 2017 WL 5180304, at *10.
D. Mental Impairments
Carnett testified that she could not comprehend anything she read, that she needed reminders to take medications, that she had social anxiety which made it difficult to get along with others, and that she could not handle stress or changes in routine. (AR 236, 238, 241-42.) The ALJ discounted Carnett's testimony about social anxiety because she reported spending time with family members when they visited her. (AR 20.) This constitutes a clear and convincing reason for discounting that part of Carnett's testimony. See Ahearn v. Saul, 988 F.3d 1111, 1116-17 (9th Cir. 2021) (upholding the rejection of the claimant's alleged mental impairments as inconsistent with his activities).
As for the remainder of Carnett's testimony, the ALJ found that Carnett's alleged symptoms were not supported by objective medical evidence. (AR 20.) The ALJ also found it significant that Carnett “receiv[ed] no mental health treatment or counselling by a mental health professional.” (AR 20.) In combination, these would constitute clear and convincing reasons for rejecting Carnett's testimony. See Fair, 885 F.2d at 603 (stating that a claimant's testimony may be rejected because of an unexplained failure to seek treatment). However, Carnett testified during her hearing that she sought one-on-one counseling when a therapist came to her house for family therapy sessions. (AR 57.) The ALJ's failure to discuss this testimony makes it impossible to determine whether the ALJ properly considered it or simply ignored it. SSR 16-3p, 2017 WL 5180304, at *10. Thus, the ALJ's reasoning is not supported by substantial evidence.
E. Conclusion
The ALJ committed multiple errors in evaluating Carnett's symptom testimony. When the ALJ erroneously rejects testimony, “a reviewing court cannot consider [the] error harmless unless it can confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different disability determination.” Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (quoting Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir. 2006)). Here, at least one of the ALJ's errors was not harmless.
The VE testified that an employee would be terminated if she missed more than one day of work per month or was off task more than 10% of the time. (AR 59-60.) Carnett testified that lupus flares occurred multiple times per month, with each flare lasting multiple days, that the flares caused her to feel like she was “sitting in a pit of fire, ” and that medication did nothing to alleviate her pain. (AR 45-46.) If this testimony were accepted as true, Carnett would miss work at least four times per month due to lupus flares or, assuming she could go to work, be off task for significant portions of the day due to untreatable pain. As Carnett would be found disabled if her symptom testimony were credited as true, the rejection of such testimony was not “inconsequential to the ultimate nondisability determination.” Ford v. Saul, 950 F.3d 1141, 1157 (9th Cir. 2020) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)). Remand is therefore required.
II. Medical-Opinion Evidence
Carnett argues that the ALJ erred in evaluating the medical-opinion evidence. When evaluating a medical opinion, the ALJ must consider the following factors: how well-supported the opinion is by objective medical evidence and explanation; how consistent the opinion is with other evidence in the record; the length and nature of the doctor's relationship with the claimant; the doctor's specializations; and other factors that may support or contradict the opinion. 20 C.F.R. § 416.920c(c). The ALJ must articulate how persuasive she finds each opinion, particularly as to the supportability and consistency factors. Id. § 416.920c(b). In this case, the ALJ's evaluation of the opinion evidence is supported by substantial evidence.
A. Dr. Scott Krasner
In February 2018, Dr. Scott Krasner examined Carnett in connection with her application. (AR 635-40.) Dr. Krasner observed that Carnett walked with a limp. (AR 636.) His examination revealed “tenderness in [Carnett's] back with some limitations to range of motion of her back and her shoulders and decreased grip on the right.” (AR 636.) Among other things, Dr. Krasner recommended that Carnett stand or walk for no more than 15 minutes at a time and for no more than two hours per eight-hour workday. (AR 636-39.) The ALJ found Dr. Krasner's opinion “not persuasive” because it was based on a single examination that did not include a review of the longitudinal record, and because Dr. Krasner's findings were inconsistent with the longitudinal record. (AR 24.)
Carnett contends that the ALJ erred by not deferring to Dr. Krasner as an examining physician. This argument is without merit. The ALJ may not defer to a medical opinion simply because it was offered by a treating or examining physician. 20 C.F.R. § 416.920c(a) (abrogating the treating source rule). The ALJ can consider an examining relationship, the length of that relationship, and the frequency of examinations to determine whether the doctor “has a longitudinal understanding of [the claimant's] impairment(s).” Id. § 416.920c(c)(3). Here, the ALJ observed that Dr. Krasner's opinions were based on a single examination and made without reviewing the longitudinal record. (AR 24.) The ALJ's consideration of these factors supports her findings, as they show that Dr. Krasner lacked a longitudinal understanding of Carnett's impairments.
Carnett also contends that the ALJ erred in finding Dr. Krasner's opinion inconsistent with the longitudinal record. She says that the ALJ ignored that her “condition flares and subsides, ” which would explain any purported inconsistency. However, this argument is not supported by the facts. The only condition that Carnett described as “flaring” was lupus, and she described her lupus flares as producing a unique and distinct type of pain (a severe burning sensation). (AR 45-46.) Carnett did not report this unique suffering in her adult function report or to any of her doctors (although she reported symptoms caused by arthritis and COPD). So far as the Court can tell, the first mention of lupus flares was during Carnett's administrative hearing in July 2019, after the medical record had been finalized. The ALJ was not required to consider whether Dr. Krasner's opinion was consistent with evidence that did not exist.
Dr. Krasner endorsed a severe walking and standing restriction, but, as the ALJ noted, recent imaging showed only minimal arthritic changes in Carnett's knees, hips, and back. (AR 22, 642, 644, 646.) The ALJ also pointed out that Carnett was frequently observed with a normal gait, which was inconsistent with the walking restriction and Dr. Krasner's observation of a limp. (AR 22, 24, 588, 793, 825, 829.) These inconsistencies constitute substantial evidence supporting the ALJ's findings.
B. Dr. J. Wright
Dr. Krasner's opinion was reviewed by Dr. J. Wright, an agency physician. (AR 101.) Dr. Wright questioned Carnett's effort during her appointment with Dr. Krasner because the limitations proposed by Dr. Krasner were not supported by the medical record. (AR 101.) Dr. Wright thus ordered x-rays of Carnett's knees, lumbar spine, and hips. (AR 101.) The x-rays showed only minimal arthritic changes. (AR 642, 644, 646.) Dr. Wright also questioned Carnett's claim of extreme shortness of breath because previous exams showed normal lung functioning. (AR 101.) Dr. Wright thus ordered a pulmonary function test. (AR 101.) The results showed only a slight reduction in Carnett's lung functioning. (AR 648.)
Dr. Wright concluded that Carnett's subjective complaints of pain, shortness of breath, and cane dependence were not supported by the medical evidence. (AR 101.) Regarding Carnett's claim of lupus, Dr. Wright noted that there was no medical evidence to support that diagnosis, but that even if Carnett had lupus, it was stable on medication. (AR 101.) Dr. Wright opined, among other things, that Carnett could stand or walk for about six hours in an eight-hour workday. (AR 98.) The ALJ found this opinion persuasive because it was supported by explanation and consistent with the record. (AR 24.)
Carnett contends that Dr. Wright “speculated without due cause that [she] did not give sufficient effort at Dr. Krasner's consultative examination.” She says that the ALJ's reliance on Dr. Wright's opinion is “tainted” by the fact that the ALJ did not comment on this purported conjecture. However, this contention is meritless. That Dr. Wright had concerns about Carnett's effort during the consultative examination does not change the fact that he based his opinion on objective medical findings showing that Carnett's condition was “essentially normal” for her age. (AR 101.) Relying on many of the same findings, the ALJ found that Dr. Wright's opinion was well-supported and consistent with the longitudinal medical record. These, of course, are appropriate reasons to adopt a medical opinion. 20 C.F.R. § 416.920c(a). The ALJ's findings were supported by substantial evidence.
III. Conclusion
The ALJ's evaluation of the medical-opinion evidence is supported by substantial evidence, but the ALJ committed harmful error by rejecting Carnett's symptom testimony without sufficient reason. Therefore, IT IS RECOMMENDED that the Commissioner's decision be reversed and that this matter be remanded back to the agency for a new hearing and decision.
This recommendation is not immediately appealable to the United States Court of Appeals for the Ninth Circuit. The parties shall have fourteen days from the date of service of this recommendation to file specific written objections with the district court. The parties shall have fourteen days to file responses to any objections. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2). No. replies may be filed absent prior authorization by the district court. Failure to file timely objections may result in the acceptance of this recommendation by the district court without de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
The Clerk of Court is directed to terminate the referral of this matter. Filed objections should bear the following case number: CV-20-00343-TUC-CKJ.