Opinion
CV-20-00405-TUC-RCC (DTF)
07-15-2022
Ashley Cornelius, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable D Thomas Ferraro United States Magistrate Judge
Plaintiff Ashley Cornelius (Cornelius) brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the final decision by the Commissioner of Social Security (Commissioner) finding she was not disabled. (Doc. 1.) The parties have fully briefed the issues. (Docs. 25, 31, 32.) 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 for further proceedings.
BACKGROUND
Cornelius was born in 1990. (AR 273.) Cornelius has a history of back pain and diss, obesity, asthma, muscle spasms, sleep apnea and chronic pain. (AR 502, 504, 567, 589, 611.) She received treatment for post-traumatic stress disorder (PTSD), generalized anxiety disorder, insomnia, bipolar disorder, and obsessive-compulsive disorder (OCD). (AR 830.) Cornelius reported waxing and waning mental health symptoms throughout her therapy, such as her depressive and obsessive symptoms. (AR 837-71, 1335.)
In August 2017, Cornelius applied for Social Security Disability Insurance under Title II and Supplemental Security Income under Title XVI alleging disability beginning January 27, 2016. (AR 273-301.) She alleged disability based on the following conditions: radiculopathy, lower back pain, other intervertebral disc degeneration, chronic pain syndrome, sciatica, head trauma, slipped disc, OCD, PTSD, and bipolar I disorder. (AR 59.)
Cornelius's claims were initially denied on November 2, 2017, and again on reconsideration on April 2, 2018. (AR 55, 57, 91, 92.) She requested a hearing. (AR 177.) On December 11, 2019, Administrative Law Judge (ALJ) Charles Davis held an administrative hearing. (AR 33.) At the hearing, Cornelius and Vocational Expert (VE) Erin Welsh testified. (AR 32.)
On January 15, 2020, the ALJ issued his unfavorable decision. (AR 10.) At step one, the ALJ determined Cornelius had not engaged in substantial gainful activity since the alleged onset date. (AR 16.) The ALJ examined Cornelius's two work attempts and concluded they qualified as unsuccessful work attempts. Id. At step two, the ALJ established Cornelius had the following severe impairments: OCD, depressive order, PTSD, and degenerative disc disease. Id. The ALJ recognized and considered Cornelius's asthma, sleep apnea, and obesity; however, the ALJ decided they were not severe. (AR 16-17.)
At step three for Cornelius's mental impairments, the ALJ considered together and alone the listings in 12.04, 12.06, and 12.15. (AR 17.) The ALJ then considered the "paragraph B" criteria, which requires one extreme limitation or two marked limitations in broad areas of functioning. Id. The ALJ concluded the "paragraph B" criteria were not satisfied. (AR 18.)
After step three but before step four, the ALJ determined Cornelius had a residual functional capacity to perform light work as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), except she could occasionally climb ramps, stairs, ladders, ropes, and scaffolds, frequently balance, occasionally stoop, kneel, crouch, and crawl, be exposed to cold or pulmonary irritants, no exposure to unprotected heights or moving mechanical machinery. Id. Further, the ALJ stated Cornelius was "limited to simply, routine tasks involving only occasional contact with coworkers and the general public." Id.
At step four, the ALJ established Cornelius was unable to perform her past relevant work as actually or generally performed. (AR 22.) At step five, the ALJ determined there were jobs in sufficient number in the national economy that Cornelius could perform. Id. Specifically, the ALJ determined Cornelius could perform the requirements of small parts assembler, merchandise maker, and mail clerk. (AR 23.) Thus, the ALJ concluded Cornelius was not disabled. Id.
On July 30, 2020, the Appeals Council denied Cornelius's request for review. (AR 1-3.) On September 23, 2020, Cornelius 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. §§ 423(d)(2)(A), 1382c(a)(3)(B).
Courts may overturn the decision to deny benefits only "when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is because the ALJ "and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ." Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); see Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004). Substantial evidence "must be more than a mere scintilla but may be less than a preponderance." Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (quoting Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012)). Courts must consider the record as a whole and "may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014) (quoting Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012)).
Even if the ALJ made an error, courts may affirm if the error was harmless; in other words, it was "inconsequential to the ultimate nondisability determination." Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)). "A reviewing court may only consider the reasons provided by the ALJ in the disability determination and 'may not affirm the ALJ on a ground upon which he did not rely.'" Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018) (quoting Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014)); see Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (stating courts cannot "affirm the denial of benefits on a ground not invoked by the Commissioner in denying the benefits originally" (quoting Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001))).
ISSUES ON REVIEW
Cornelius raises two issues. (Doc. 25 at 2.) She argues the ALJ improperly analyzed the opinion of Physician's Assistant Barry McMillon. Id. at 2, 8-13. Additionally, she contends the ALJ did not articulate clear and convincing reasons supported by substantial evidence to discount her symptom testimony. Id. at 2, 13-17. She requests this matter be remanded for reconsideration of the evidence. Id. at 17.
DISCUSSION
PA McMillon's Opinion
In the past, the United States Court of Appeals for the Ninth Circuit mandated ALJs give treating practitioner's opinions "controlling weight," and there was a hierarchy of medical opinions. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). Under this framework, ALJs were required to provide "specific and legitimate reasons" to reject a treating or examining practitioner's opinion when another medical source's opinion contradicted it. Smith v. Kijakazi, 14 F.4th 1108, 1114 (9th Cir. 2021). However, in 2017, the regulations changed for claims filed on or after March 27, 2017. 20 C.F.R. §§ 404.1520c(a) ("We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources."), 416.920c(a) (same). Because Cornelius filed her application after March 27, 2017, the medical opinions are subject to the new regulations.
The Ninth Circuit recently stated "the 'specific and legitimate' standard is clearly irreconcilable with the 2017 regulations, the extent of the claimant's relationship with the medical provider-what we will refer to as 'relationship factors'-remains relevant under the new regulations." Woods v. Kijakazi, 32 F.4th 785, 790 (9th Cir. 2022). The medical source's relationship with the claimant is still relevant to assess the persuasiveness of the opinion. Id. at 792 (citing § 404.1520c(c)(3)). The ALJ must "articulate . . . how persuasive [they] find all of the medical opinions" and "explain how [they] considered the supportability and consistency factors." §§ 404.1520c(b), 416.920c(b). Supportability refers to the amount of relevant objective medical evidence and supporting explanations provided by the medical source. §§ 404.1520c(c)(1), 416.920c(c)(1). Consistency mandates that the "more consistent a medical opinion(s) or prior administrative medical finding(s) is with" the record, "the more persuasive" the opinion or finding will be. §§ 404.1520c(c)(2), 416.920c(c)(2).
Here, PA McMillon treated Cornelius in 2017 and 2018. (AR 827-35, 876-84, 891-99.) On March 26, 2018, PA McMillon completed a Mental Disorder Questionnaire Form. (AR 921-25.) PA McMillon wrote Cornelius's mother accompanied her to the appointments "for support due to her anxiety." (AR 921.) He also started five answers with "Client reports" or simply "Reports." (AR 921-24.) According to PA McMillon, Cornelius was "able to complete [present daily activities] but need[ed] to be reminded and/or redirected." Id. Furthermore, PA McMillon stated that Cornelius's anxiety hindered social function but she could do it, Cornelius could perform simple tasks and carry out simple instructions, and Cornelius had "problems with authority and OCD interferes with [her] work performance." (AR 923-24.) PA McMillon concluded Cornelius's prognosis was "poor to fair contingent upon adherence to medical treatment plan." (AR 925.) The ALJ determined PA McMillon's statement was not persuasive because it was based on Cornelius's subjective reports-not objective observations and evidence-and failed to cite to any evidence for support. (AR 21.)
Cornelius contends the ALJ failed to provide specific and legitimate reasons for rejecting PA McMillon's statement. (Doc. 25 at 8-13.) The Commissioner argues the ALJ did not need to provide specific and legitimate reasons because Cornelius applied for disability after March 27, 2017. (Doc. 31 at 4-10.) The Court agrees with the Commissioner that the ALJ did not need to provide specific and legitimate reasons but the ALJ needed to explain the persuasiveness, supportability, and consistency of the statement.
The ALJ articulated the persuasiveness of PA McMillon's statements and the supportability, as required by the new regulations. See Woods, 32 F.4th at 790; AR 21. Those reasons were supported by the record because PA McMillon based his statement on Cornelius's subjective reports instead of objective observations and did not cite to any evidence for his conclusions. (See AR 921-25.) However, the ALJ did not explain if PA McMillon's statement was consistent with the record. See AR 21. Thus, the Court recommends finding the ALJ erred because the ALJ was required to explain his consideration of the consistency factor.
The Court must consider whether the error was harmless or not. See Ford, 950 F.3d at 1154. Courts may not "substitute [their] judgment for that of the ALJ." Matney ex rel. Matney, 981 F.2d at 1019; see Batson, 359 F.3d at 1196. PA McMillon's statement considered Cornelius's mental impairments, which the ALJ did consider. (AR 18, 921-25.) For example, PA McMillon stated that Cornelius could "perform simple tasks and carry out simple instructions" and the ALJ limited Cornelius to "simple, routine tasks involving only occasional contact with coworkers and the general public." (AR 18, 924.) Additionally, PA McMillon opined that Cornelius's issues with authority and OCD would interfere with her work performance in adapting to work and the ALJ found that Cornelius experienced a moderate limitation in adapting. Id. PA McMillon did not state limitations greater than the RFC decided by the ALJ. Thus, the Court recommends finding this error is harmless.
Discounting Cornelius's Symptom Testimony
For an ALJ to discredit a claimant's testimony they must complete the following two-step analysis. Smith, 14 F.4th at 1111. "First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment 'which could reasonably be expected to produce the pain or other symptoms alleged.'" Garrison, 759 F.3d at 1014 (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). The claimant need not present objective evidence of the symptom itself (e.g., pain), or of its severity. Id. (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)).
Second, absent evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so." Id. at 1014-15 (quoting Smolen, 80 F.3d at 1281). "General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995), as amended (Apr. 9, 1996)); see also Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) ("[T]he ALJ never identified which testimony she found not credible, and never explained which evidence contradicted that testimony." (quoting Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015))). Thus, "[t]o support a lack of credibility finding, the ALJ [is] required to point to specific facts in the record." Burrell, 775 F.3d at 1138 (quoting Vasquez v. Astrue, 572 F.3d 586, 592 (9th Cir. 2009)). The ALJ must also link the testimony to the record supporting the non-credibility determination. Brown-Hunter, 806 F.3d at 494. "An ALJ . . . may not discredit the claimant's subjective complaints solely because the objective evidence fails to fully corroborate the degree of pain alleged." Coleman v. Saul, 979 F.3d 751, 756 (9th Cir. 2020).
Here, Cornelius reported in her first adult function report that her mental health impairments caused fear of socialization with strangers, emotional outbursts, and tardiness. (AR 406.) She claimed that at times she would "just lay in the dark crying, under [her] blankets." (AR 400.) At the hearing, she testified she was unable to work because of her mental health. (AR 37.) She said her OCD caused her to be late constantly. (AR 37, 44-45.) She discussed her daily activities such as cooking, walking her dogs, and swim aerobics. (AR 39, 41.) She also described issues with authoritative figures, such as "telling them exactly what's on [her] mind" and not following directions. (AR 40, 46-47.) Cornelius also asserted she had lost her position as a greeter at Walmart because of absenteeism. (AR 35-36.) The VE stated there would be other positions available for the person in the ALJ's hypothetical, which later became the RFC. (AR 18, 50.) Specifically, the VE opined that a person with the RFC could work as a small parts assembler, a merchandise marker, and a mail clerk. (AR 50.) In response to questioning by Cornelius's attorney, the VE stated "three absences on a repetitive monthly basis would be seen as excessive and could reach a termination." (AR 51.) The VE also stated that constant and repeated tardiness totaling more than eight hours a month would likely lead to termination. (AR 52.)
At step three of the ALJ's decision, the ALJ discussed Cornelius's mental health and evaluated the "paragraph B" criteria. (AR 17-18.) But the ALJ concluded that the paragraph B criteria were not satisfied. (AR 18.)
Then after step three and before step four, the ALJ found Cornelius's "medically determinable impairments could reasonably be expected to cause the alleged symptoms." (AR 19.) The ALJ continued that Cornelius'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 Cornelius reported the following symptoms stemming from her bipolar disorder and depressive disorder: disorganized thoughts, difficulty concentrating, sleep disturbance, agitation, decreased need for sleep, fatigue, hopelessness, and depressed mood. (AR 20.)
The ALJ then described an examination in January 2017 where Cornelius was well groomed, made good eye contact, spoke appropriately, had no abnormal movements, but needed to be redirected and had difficulty focusing, and that Cornelius's global assessment of functioning was 50 out of 100. Id. The ALJ contrasted this with reports from other mental health providers that Cornelius "showed neutral mood, good insight, judgment, concentration and normal speech and thoughts." Id. The ALJ mentioned improved and worsened symptoms, such as crying, difficulties with other people, good insight, judgment, concentration, and memory. Id. The ALJ concluded Cornelius's mental impairments limited her to "simple, routine tasks involving only occasional contact with coworkers and the general public." Id.
Cornelius argues the ALJ failed to articulate clear and convincing reasons for discounting her symptom statements. (Doc. 25 at 13-17.) The Court agrees.
The ALJ did not find there was evidence of malingering. (AR 19-21.) Thus, the ALJ was required to provide specific, clear, and convincing reasons for finding the statements to be not credible. The ALJ fails to specify his reasons for finding Cornelius's statements "not entirely consistent" with evidence in the record. (AR 19-21.) Merely summarizing Cornelius's medical records is insufficient. See Brown-Hunter, 806 F.3d at 494. The ALJ never linked specific facts in the record with the non-credibility determination. To the extent the ALJ attempted to rely on the waxing and waning symptoms, the Court is unswayed. See Garrison, 759 F.3d at 1017 ("[I]t is error to reject a claimant's testimony merely because symptoms wax and wane in the course of treatment."). Additionally, the Commissioner argues the ALJ considered Cornelius's daily activities. (Doc. 31 at 11-12.) True, but this was done in step three and was not connected to Cornelius's statements; additionally, the Commissioner attempts to rely on reasons outside the ALJ's decision by expanding on the daily activities to activities not in the decision. (Doc. 31 at 11-12, AR 17-20.) Courts cannot rely on reasons outside the ALJ's decision. See Luther, 891 F.3d at 875. Therefore, the Court recommends finding the ALJ erred because the ALJ failed to link specific facts with the non-credibility determination.
The Commissioner mentions Cornelius was seeking mental health to support her claim and points to malingering. (Doc. 31 at 2, 9.) “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, 891 F.3d at 875 (quoting Garrison, 759 F.3d at 1010). Here, the ALJ did not indicate Cornelius was malingering; thus, this Court will not credit the Commissioner's assertions.
The Court must consider whether the error was harmless or not. See Ford, 950 F.3d at 1154. "If the ALJ fails to specify his or her reasons for finding claimant testimony not credible, a reviewing court will be unable to review those reasons meaningfully without improperly 'substituting] our conclusions for the ALJ's, or speculating] as to the grounds for the ALJ's conclusions.'" Brown-Hunter, 806 F.3d at 492 (alterations in Brown-Hunter) (quoting Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014)). The ALJ explicitly considered and even accepted some of Cornelius's mental health symptoms. (AR 20.) However, the ALJ did not make an explicit finding regarding Cornelius's alleged tardiness. The VE explained that constant and repeated tardiness totaling more than eight hours a month would likely lead to termination. (AR 52.) Hence, the Court concludes this error was not inconsequential to the ultimate nondisability determination because it could have altered the decision. Therefore, the Court recommends vacating and remanding the decision, as Cornelius requests.
RECOMMENDATION
Based on the foregoing, the Magistrate Judge RECOMMENDS that the District Court, after its independent review, enter an order vacating the Commissioner's final decision and remanding this matter for proceedings consistent with its opinion.
This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Fed. R. App. P., should not be filed until entry of the District Court's judgment.
However, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a, d), 72(b). Thereafter, the parties have fourteen (14) days within which to file a response to the objections. No reply briefs shall be filed unless the District Court grants leave to do so. The Clerk of Court is directed to terminate the referral of this matter. Filed objections should bear the following case number: CV 20-00405-TUC-RCC. 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).