Opinion
CV-21-00552-TUC-JCH (DTF)
01-10-2023
Kodi Lawan Edge, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable D. Thomas Ferraro United States Magistrate Judge.
Plaintiff Kodi Lawan Edge (Edge) 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. 16, 17, 18.) This matter was referred to the undersigned United States Magistrate Judge for a Report and Recommendation. (Doc. 9.) 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
Edge was born in 1986. (AR 638.) She did not complete high school. (AR 93.) There is evidence in the record indicating otherwise, but this seems inaccurate. (AR 695, 1119.) She has worked as a retail salesperson and a customer service representative. (AR 92, 98, 705.) Edge's medical record will be discussed as necessary.
On September 22, 2015, Edge filed for Disability Insurance Benefits (DIB) under Title II and Supplemental Security Income under Title XVI. (AR 298, 313.) She claimed disability starting February 19, 2015, based on the following impairments: fibromyalgia, vertigo, post-traumatic stress disorder (PTSD), anxiety, depression, bipolar disorder, and migraines. (AR 298-99, 313-14.)
Edge's claims were denied initially on February 12, 2016, and again on reconsideration on September 8, 2016. (AR 296-97, 328-29, 400, 404, 411.) She requested a hearing, which was held on March 12, 2018, before Administrative Law Judge (ALJ) Larry E. Johnson. (AR 273.) Edge and Vocational Expert (VE) Kathleen McAlpine appeared at the hearing, but only Edge testified. (AR 273-74, 279.)
On August 6, 2018, the ALJ issued his unfavorable decision. (AR 374.) On January 30, 2020, the Appeals Council granted Edge's request for review and remanded the matter back to the ALJ. (AR 369.) On November 17, 2020, the ALJ held another administrative hearing. (AR 137.) At this hearing, Edge and Medical Expert (ME) Mihn Vu testified. (AR 138, 142, 161.)
On April 22, 2021, the ALJ held a supplemental hearing. (AR 107.) ME David Peterson testified because the ALJ was uncomfortable with ME Vu. (AR 108-10.) On July 1, 2021, the ALJ held a second supplemental hearing, in which ME Steven Goldstein, Edge, and VE Linvill Thomas testified. (AR 63-64, 69, 86, 91.)
On August 2, 2021, the ALJ issued his second and current unfavorable decision. (AR 26.) Before commencing the five-step process, the ALJ determined Edge had insured status until June 30, 2020. (AR 30.) At step one, the ALJ concluded Edge had not engaged in substantial activity since the alleged onset date. (AR 32.) At step two, the ALJ decided Edge had the following severe impairments: anxiety disorder, depressive disorder, bipolar disorder, personality disorder/traits, post-traumatic stress disorder (PTSD), migraine headaches, sleep apnea, restless leg syndrome, lumbar radiculopathy, degenerative disc disease and obesity. (AR 32-33.) In addition, the ALJ acknowledged reports Edge had trichotillomania, kidney stones, and fibromyalgia. (AR 33.) The ALJ determined these were either not severe or not medially determinable. Id. At step three, the ALJ concluded none of Edge's impairments, alone or in combination, were equal in severity those listed in 20 C.F.R. part 404, Subpart P, Appendix 1. (AR 33-34.)
Between steps three and four, the ALJ found Edge had the residual functional capacity (RFC) to perform light work with some exceptions. (AR 35-36.) The ALJ resolved Edge could lift or carry twenty pounds occasionally and ten pounds frequently, could sit and stand or walk for six hours, and could never climb ladders, ropes, or scaffolds. (AR 35.) Further, the ALJ stated Edge could occasionally climb ramps or stairs, stop, kneel, crouch, or crawl. Id. The ALJ noted Edge should avoid concentrated exposure to moving machinery or unprotected heights. Id. The ALJ concluded Edge could perform work in which interpersonal contact is only incidental to the work and she is not required to frequently consult with or involve co-workers or the general public. (AR 35-36.) The ALJ continued that the contact must be limited to brief, infrequent, and superficial interactions. (AR 36.) Additionally, the ALJ limited the RFC to tasks that are no more complex than those considered as unskilled with instructions, one to three step instructions typical of unskilled positions, requiring judgment commensurate with unskilled work and involving infrequent changes. Id. In determining Edge's RFC, the ALJ included a detailed summary of Edge's medical history. (AR 40-45.) Then the ALJ considered the medial opinions, lay person statements or other evidence. (AR 45-48.)
At step four, the ALJ concluded Edge could not perform her past relevant work. (AR 49.) At step five, the ALJ found there were jobs in significant numbers in the national economy that someone with Edge's age, education, work experience, and RFC could perform. Id. Specifically, the ALJ settled Edge could work as a small products assembler, laundry worker, or marker/pricer. (AR 50.) Thus, the ALJ resolved Edge was not disabled. (AR 51.)
On December 1, 2021, the Appeals Council denied Edge's request for review. (AR 1-4.) On December 28, 2021, Edge 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(A)(2), 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))).
DISCUSSION
Edge argues the ALJ failed to provide a legally sufficient reason to reject her treating psychiatrist's opinions. (Doc. 16 at 1, 12-18.) Edge continues that the Court should remand for benefits. Id. at 20.
"To reject [the] uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing reasons that are supported by substantial evidence." Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (alteration in Ryan) (quoting Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). "If a treating or examining doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence." Id. (quoting Ryan, 528 F.3d at 1198). "The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Id. (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).
The Court notes that the regulations have 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). However, Edge filed her claim prior to those changes; thus, the Court shall refer to them no further, as they are inapplicable here. (AR 638-39, 642-45.)
Here, both parties identify Psychiatrist Jennifer Treusch, M.D., as a treating psychiatrist. (Doc. 16 at 1; Doc. 17 at 3.) Edge indicates the ALJ could only discount Dr. Treusch's opinion based on clear and convincing reasons, implying the opinion is uncontroverted. (Doc. 16 at 14 ("The Court should hold that the ALJ did not give clear and convincing or legally sufficient reasons generally for rejecting Dr. Treusch's more-restrictive March 2021 opinions.").) The Commissioner argues Dr. Treusch's opinion is contradicted and the appropriate standard is, thus, specific and legitimate reasons. (Doc. 17 at 14.) The Court agrees with the Commissioner. Testifying medical experts Drs. Peterson and Goldstein, state agency consultants Drs. Gross and Caruso-Radin, and consultative examiner Dr. Rohen contradicted Dr. Treusch's opinions. (AR 70-75, 112-14, 123-28, 309-10, 345-46, 1121.) As such, the ALJ was required to provide specific and legitimate reasons when rejecting Dr. Treusch's opinion. See Revels, 874 F.3d at 654.
The Commissioner argues the ALJ properly discounted Dr. Treusch's opinions because they lacked internal support, the treating relationship did not span a significant portion of the relevant period, and the opinions were inconsistent with objective medical evidence. (Doc. 17 at 9-13.)
Here, Dr. Treusch began treating Edge on September 22, 2020. (AR 3114.) At first, Dr. Treusch diagnosed Edge with an anxiety disorder unspecified and major depressive disorder, recurrent episode, severe without psychotic symptoms. (AR 3122.) Throughout the treatment, Dr. Treusch diagnosed Edge with attention deficient hyperactive disorder (ADHD), inattentive type, and bipolar disorder, unspecified. (AR 3154, 3242.) Dr. Treusch changed Edge's medication multiple times. (AR 3129, 3137, 3153, 3241, 3249, 3257, 3372, 3380, 3388.) Dr. Treusch noted concentration levels ranging from poor to good throughout treatment. (AR 3123 (poor), 3131 (poor), 3139 (fair), 3147 (poor), 3241 (poor), 3243 (fair), 3251 (good), 3372 (good), 3374 (fair), 3486 (fair).) Additionally, Dr. Treusch reported "easily distracted" as a cognitive sign twice. (AR 3240, 3387.)
On March 31, 2021, Dr. Treusch filled out a medial source assessment form. (AR 3210-11.) The form breaks the evaluation into four sections: understanding and memory, sustained concentration and persistence, social interaction, and adaption. Id. Dr. Treusch found limitations in each category. Id. The only explanation for the limitations on the form is that Edge's "anxiety affects her concentration and causes panic attacks." (AR 3211.) The limitation options were no observable limit, difficulty for less than ten percent of the work period, difficulty between eleven and twenty percent of the work period, difficulty more than twenty percent of the work period, and unable to perform the task or function. (AR 3210.)
In understanding and memory, Dr. Treusch stated Edge would have difficulty for more than twenty percent of the workday or week in remembering locations and work-like procedures. Id. Dr. Treusch found Edge would have difficulty for less than ten percent of the day in understanding and remembering very short, simple instructions, and understanding and remembering detailed instructions. Id.
In sustained concentration and persistence, Dr. Treusch concluded Edge would be unable to perform activities within a schedule, maintain regular attendance, or be punctual within customary tolerances, or complete a normal workday and work week without interruptions from psychological-based symptoms and to perform at a consistent pace without rest periods that are unreasonable in number or length. Id. Further, she determined Edge would have difficulty for more than twenty percent of the time in making simple work-related decisions. Id. She found Edge would have difficulty between eleven and twenty percent of the time in carrying out detailed instructions, maintaining attention and concentration for extended periods of time, sustaining ordinary routine without special supervision, and working in coordination with or proximity to others without being distracted by them. Id. Finally, Dr. Treusch resolved that Edge would be limited in carrying out very short and simple instructions for less than ten percent of the work period. Id.
In social interaction, Dr. Treusch opined Edge would have difficulty for more than twenty percent of the day in interacting appropriately with the general public and in getting along with coworkers or peers without distracting them or exhibiting behavioral extremes. (AR 3211.) Dr. Treusch found lesser difficulty in asking simple questions or requesting assistance and in accepting instructions and responding appropriately to criticism form supervisors. Id. According to Dr. Treusch, Edge would be limited for less than ten percent of the work period in maintaining socially appropriate behavior and adhering to basic standards of neatness and cleanliness. Id.
In adaption, Dr. Treusch concluded Edge would be unable to travel in unfamiliar places or use public transportation, or to set realistic goals or make plans independently of others. Id. She decided Edge's ability to respond appropriately to changes in the work setting would be limited for eleven to twenty percent of her work time. Id. Finally, Dr. Treusch opined Edge would experience difficult for up to ten percent of her work period in being aware of normal hazards and taking appropriate precautions. Id.
In his decision, the ALJ gave Dr. Treusch's opinion little weight. (AR 47.) The Court will consider the reasons the ALJ provided in turn. First, the ALJ mentioned that Dr. Treusch began treating Edge in September 2020, over five years after the alleged onset date. Id. This is supported by the record. (AR 3114.) As such, it is reasonable to limit Dr. Treusch's opinion to the period of treatment but does not discredit the opinion after September 2020.
Second, the ALJ discounted Dr. Treusch's opinions because they were not consistent with the treating record from Dr. Treusch. (AR 47.) While, the ALJ did not fully describe the entire treatment record, the ALJ specially mention the initial evaluation and the appointments on October 6, 2020, October 20, 2020, November 3, 2020, and January 19, 2021. Id. The ALJ stated that, during the initial evaluation, Dr. Treusch observed Edge "was fully oriented, had good rapport, appropriate appearance, appropriate affect, excessive/rapid/coherent speech, tangential/loose associations of thought, no hallucinations, stable insight, stable judgment, no cognitive deficits, no suicidal or homicidal ideations, normal psychomotor behavior and normal gait/station." (AR 47.) The ALJ noted Edge experienced some increased anxiety and flashbacks after her friend was murdered and some "freezing" events in October 2020. Id. The ALJ remarked Edge engaged in therapy and reported she was "doing well" in November 2020. Id. The ALJ acknowledged an increase in symptoms "situationally due to not being able to workout." Id.
The ALJ's summary was accurate but incomplete. It falls short of a thorough summary of the facts and conflicting clinical evidence with interpretations as to why the ALJ-not the treating physician-is correct, that would be required from a summary and then interpretations. See Garrison, 759 F.3d. at 1012. For example, the ALJ did not mention that Dr. Treusch stated Edge's concentration was poor at the initial evaluation and the October 6, 2020 and October 20, 2020 appointments. (AR 47, 3114, 3123, 3131.) Additionally, the ALJ did not note that, in the appointment after Edge was "doing well," she stated she had "not left the house in days." (AR 3235.) At this appointment, Edge reported passive suicidal ideations. (AR 3236.) Additionally, Edge had a disheveled appearance, and Dr. Treusch did not find "no gross cognitive deficits." (AR 3239-40.) Thus, the ALJ has not provided inconsistency with the treatment notes as a specific and legitimate reason supported by substantial record.
The ALJ did not discount the opinion because Dr. Treusch "provided limited support for her opinion in the form of internal explanation," as the Commissioner asserts. (Compare AR 47 with Doc. 17 at 9.) The ALJ mentioned this for the opinion before Dr. Treusch's and for the opinion of Dale Hawkins, NP, but not for Dr. Treusch's. (AR 47.) This rational is missing from the ALJ's evaluation of Dr. Treusch's opinion. Id. Because courts may not affirm on a ground that the ALJ did not rely, the Court will consider this argument no further. See Luther, 891 F.3d at 875.
Thus, the ALJ erred in giving Dr. Treusch's opinion light weight. The Court must consider whether the error was harmless or not. See Ford, 950 F.3d at 1154. If the ALJ had credited Dr. Treusch's limitations or included them in Edge's RFC, then the ALJ would have found Edge disabled at step five. The VE testified that all positions would be eliminated if a person was off task for less than fifteen percent of the time consistently and absolutely no positions for a person off task for more than fifteen percent of the time. (AR 100, 102.) 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.
Edge requests an award of benefits or a finding of disability without further rehearing. (Doc. 16 at 20.) The Commissioner argues that, if there is reversible error, the appropriate course is to remand for further investigation or explanation under the "ordinary remand rule." (Doc. 17 at 19.)
A federal court may affirm, modify, reverse, or remand a social security case. § 405(g). The proper course is generally to remand to the agency for additional investigation or explanation. Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). Under a "rare exception" to this rule, the Court may remand for an immediate award of benefits after conducting a three-part inquiry, often labeled the "credit as true" rule:
First, [the Court] ask[s] whether the ALJ failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion. Next, [the Court] determine[s] whether there are outstanding issues that must be resolved before a disability determination can be made, and whether further administrative proceedings would be useful. When these first two conditions are satisfied, [the Court will] then credit the discredited testimony as true for the purpose of determining whether, on the record taken as a whole, there is no doubt as to disability.Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017) (cleaned up). The Court has discretion to remand for further proceeding even if it reaches the third step. Id. "Where an ALJ makes a legal error, but the record is uncertain and ambiguous, the proper approach is to remand the case to the agency." Id. (quotation marks and alteration omitted).
Here, the Court finds that the first step is satisfied. The ALJ failed to provide sufficient reasons for discounting Edge's treating physician's opinion. At step two, the Court finds that while the administrative record is extensive, additional proceedings would be useful because it could be enlightening given the passage of time. See Treichler, 775 F.3d at 1101 (citing I.N.S. v. Orlando Ventura, 537 U.S. 12, 18 (2002)).
However, if the District Court continues to step three, the undersigned recommends finding that if Dr. Treusch's opinion was credited, then there would be no doubt as to disability. Then it would be a matter of discretion whether to remand for benefits or further proceedings. The undersigned would still recommend remanding for further proceedings. Accordingly, this matter should be remanded for further proceedings.
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 21-00552-TUC-JCH. 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).