Opinion
CV-23-00343-TUC-JGZ (JR)
04-25-2024
Kasi M Evans, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
JACQUELINE M. RATEAU, UNITED STATES MAGISTRATE JUDGE
Plaintiff Kasi M. Evans (“Evans”), pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeks judicial review of a final decision by the Commissioner of the Social Security Administration (the “Commissioner”). (Doc. 1.) This matter, on referral to the undersigned United States Magistrate Judge for Report and Recommendation, is ripe for decision. (Doc. 11, 15, 23, 24.) The Commissioner admits that the ALJ erred and seeks remand for further proceedings. (Doc. 23 at 2.) Evans seeks remand for the immediate calculation and award of benefits. (Doc. 24 at 3.) As more fully set forth below, the undersigned recommends that the district court remand the matter to the agency for the immediate calculation and award of benefits.
BACKGROUND
Procedural Background
On July 26, 2019, Evans filed an application for Supplemental Security Income (“SSI”) benefits alleging on disability beginning July 16, 2019. (AR 56.) Evans's application was denied initially and on reconsideration. (AR 104-111 (initial denial); AR 113-126 (reconsideration denial).) On February 25, 2022, Administrative Law Judge (“ALJ”) Yasmin Elias issued an unfavorable decision. (AR 56-68.) On May 25, 2023, the Social Security Administration Appeals Council denied Evans's request for review and adopted the ALJ's unfavorable decision as the agency's final decision. (AR 1-6.) See 42 U.S.C. §§ 405(g), 1383(c)(3).
Relevant Factual Background
Evans was 27 years old at the time her application was filed. (AR 67.) She has a tenth grade education. (AR 82.) She took the exam to obtain her GED three times and failed each time. (AR 83.) She has no past relevant work. (AR 67.) She is a victim of domestic violence and suffers from frequent flashbacks. (AR 81.) She has the severe impairments of fibromyalgia and systemic lupus erythematosus (“SLE”). (AR 58.)
The medical records summary is primarily taken from Plaintiff's opening brief to which no objection has been made.
During the relevant period, primary care physician Douglas Campbell, M.D., managed Evans's treatment. In February 2019, Evans was started on a trial of Plaquenil for her SLE symptoms which included pain, fatigue, headache, rash, short-term memory deficit, and concentration deficiencies. (AR 318-20.) CellCept was added for ongoing joint pain. (AR 322, 325.) In March 2019, Evans's joint pain continued, she had morning stiffness and a mild rash on her forearms. (AR 331-32.) Examination showed active inflammation at her hand joints, swelling at her hands, and tenderness at 18 of 18 fibromyalgia tender points. (AR 332.) Medications did not provide relief. At this visit CellCept was discontinued due to side effects, Plaquenil was continued, and Prednisone and Methotrexate were added. (AR 333.)
In September 2019, Evans is recorded as having pain at her hands and fatigue. (AR 434.) At a November 14, 2019 rheumatology follow-up, Evans's joint pain is recorded as continuing, along with her morning stiffness. (AR 361, 364.) On examination, she had a mild rash on her forearms, active synovitis at her hand joints, swelling of her hand joints, and tenderness to palpation at 18 of 18 fibromyalgia tender points. (AR 365.) Methotrexate was discontinued because Evans was pregnant, but Plaquenil and Prednisone were refilled. (AR 365.)
At a pain management consultation on February 17, 2020, Evans reported neck, low back and hip pain, and confirmed frequent SLE pain flare-ups. (AR 530.) She had tried morphine, Oxycodone, Vicodin, Percocet, Dilaudid, gabapentin, Soma, and Methotrexate. Id. On examination, she had tenderness to palpation at her cervical and lumbar spine and sacroiliac joints, muscle spasms, mildly restricted lumbar motion, and positive straight leg raise testing. (AR 531.) She was prescribed Oxycodone. Id. Similar positive physical findings were observed on February 25, 2020, and Oxycodone was refilled. (AR 534.)
At a March 16, 2020 pain management follow-up, Evans's pain persisted. (AR 537.) On examination, she had tenderness to palpation at her cervical and lumbar spine and sacroiliac joints, muscle spasms, mildly restricted lumbar motion, and positive straight leg raise testing. Id. Her Oxycodone was increased. (AR 537.)
On April 14, 2020, Evans's pain is recorded as continuing, and her pain is recorded as “throbbing, shooting, sharp, tender, burning, tiring, and miserable.” (AR 540.) Hot showers and laying down helped the pain. Id. On examination, she had tenderness to palpation at her cervical and lumbar spine and sacroiliac joints, muscle spasms, mildly restricted lumbar motion, and positive straight leg raise testing. Id. Her Oxycodone was refilled again. (AR 541.)
At a May 12, 2020 pain management follow-up, Evans is recorded as having been unable to get her SLE medication, and having continuing pain that increases with cold and flare-ups. (AR 543.) On examination, she had tenderness to palpation at her cervical and lumbar spine and sacroiliac joints, muscle spasms, mildly restricted lumbar motion, and positive straight leg raise testing. Id. Her Oxycodone was increased again. (AR 544.)
At her June, July, and August 2020 pain management follow-ups, Evans's pain is recorded as continuing, and she had tenderness to palpation at her cervical and lumbar spine and sacroiliac joints, muscle spasms, mildly restricted lumbar motion, and positive straight leg raise testing. (AR 546, 549, 552.) Her Oxycodone was again refilled. (AR 547, 550, 553.)
Evans saw a neurologist on July 8, 2020 for head pressure and headaches with visual symptoms. (AR 569, 571.) Brain imaging and electroencephalogram testing were normal. (AR 571, 623-26.) When Evans saw rheumatology on July 23, 2020, she had resumed Plaquenil. (AR 681.) She is recorded as suffering fatigue, dry eyes, abdominal pain, numbness/tingling in her extremities, insomnia, joint pain, morning stiffness, and neck and back pain. (AR 683-84.)
When Evans saw Dr. Campbell on August 13, 2020, she is recorded as having more inflammation in her sacroiliac joints. (AR 747.) At her August 20, 2020 follow-up with Dr. Campbell, Evans reported an SLE flare-up that caused “hurting all over.” (AR 489.) Omeprazole was prescribed for gastrointestinal issues. (AR 490.) Dr. Campbell continued Prozac and lorazepam for anxiety and depression. (AR 493.)
At a September 10, 2020 rheumatology follow-up, Evans is recorded as “not doing good,” that “she hurts everywhere,” and has having pain at her hands, hips, feet, back, and neck. (AR 670.) X-rays showed subchondral sclerosis in the bilateral sacroiliac joints concerning for inflammatory sacroiliitis, and a pelvis MRI showed degenerative changes with sclerosis and mild edema secondary to acute inflammation from arthropathy. (AR 679, 688-89, 694-95.)
At a September 11, 2020 pain management follow-up, Evans's pain is recorded as persisting and she was observed with tenderness to palpation at her cervical and lumbar spine and sacroiliac joints, muscle spasms, mildly restricted lumbar motion, and positive straight leg raise testing. Her Oxycodone was refilled. (AR 555-56.)
By October 8, 2020, Evans had discontinued Humira reporting that she felt worse on it. (AR 517.) She had increased pain and some dizziness. Id. Evans reported brain fog, head pressure, some nausea, and dyspnea. Id. On examination, Evans was crying, and had swollen joints at her hands. (AR 519-20.)
At an October 9, 2020 pain management follow up, Evans is recorded as still having chronic pain and her recent spinal MRIs showed ankylosing spondylitis, which her provider noted “would be an explanation for her significant and increasing back pain.” (AR 561.) On examination, she had tenderness to palpation at her cervical and lumbar spine and sacroiliac joints, muscle spasms, mildly restricted lumbar motion, and positive straight leg raise testing. Id.
At a November 17, 2020 pain management follow-up, Evans's pain persisted, and her physical examination was unchanged. (AR 731.) When she saw Dr. Campbell on November 20, 2020, Evans reported that she had some improvement in her joint pain, but felt more fatigued since being back on methotrexate. (AR759-60.) Dr. Campbell recorded that he believed Evans's fatigue is related to methotrexate. (AR 761.)
At a December 15, 2020 pain management follow-up, Evans received a warning as her medications did not show up on her last urine drug screen. (AR 734.) Her physical examination was unchanged, she had tenderness to palpation at her cervical and lumbar spine and sacroiliac joints, muscle spasms, mildly restricted lumbar motion, and positive straight leg raise testing. Id.
When she saw Dr. Campbell on December 17, 2020, Evans needed referrals for new pain management and rheumatology providers, and she mentioned that Oxycodone was not adequately managing her pain. (AR 764.) Dr. Campbell provided new referrals. Id.
At a March 11, 2021 follow-up with Dr. Campbell, Evans was no longer on her SLE medications as she had episodic symptoms of numbness at her face and arms and pain at her side when taking them. (AR 767.) She was uncomfortable with her new rheumatologist and requested a new referral, which Dr. Campbell provided. (AR 767-68.)
At a neurology appointment in May 2021, Evans is recorded as reporting nearly daily headaches, with severe headaches about three to four times a week that could last from minutes to hours. (AR 834.) On examination, Evans lost points in recall and registration and appeared “to have psychomotor retardation with possible underlying depression and pseudodementia related to underlying dysthymia and anxiety.” Id. Testing was reordered. (AR 835.)
At an August 6, 2021 follow-up with Dr. Campbell, Evans confirmed she had been off narcotic pain medication since December 2020, but was taking gabapentin which helped some with pain and her restless leg syndrome. (AR 770.) She was having bad nightmares and panic attacks where her heart raced, and she had difficulties completing certain self-care activities. Id. Dr. Campbell recorded that Evans's anxiety was clearly “out of control,” and prescribed Celexa, Buspar, and gabapentin. (AR 772.)
Evans saw rheumatologist Michael J. Fairfax, D.O., on August 17, 2021, and is recorded as reporting neck and low back pain with morning stiffness and fatigue. (AR 821.) She was also bothered by alopecia, rashes, and photosensitivity. Id. Dr. Fairfax ordered updated lab work and spinal imaging. (AR 822.) An October 2021 lumbar x-ray showed sclerosis at the sacroiliac joints with partial sacralization of the right and left lateral process of L5 with pseudoarthrosis formation. (AR 824.)
Hearing Testimony
Evans testified that she is unable to work because of a combination of mental and physical symptoms, including anxiety where she feels people are watching her and chronic pain. (AR 83.) She is unreliable because her pain flares, and when it does she has to call in to work. Id. Her lupus causes skin rashes, brain fog, headaches, fatigue, and chronic pain in her body. (AR 84.) Her symptoms from fibromyalgia are similar and include chronic fatigue and brain fog. Id. She has pain at her low back, pelvis, hands, and neck, and her pain increased with activity and improves with rest. (AR 85.) After standing or sitting for about 30 minutes, pain is shooting up her back and in her hips, requiring her to lay down. (AR 85-86.) She has difficulty sleeping at night and has to take two naps during the day for about an hour each nap. (AR 86-87.) She also has headaches that require her to lay down for about 20 minutes. (AR 87.)
Evans also suffers from flashbacks that are triggered by crowds, being around men, loud noises, or people moving too fast around her. (AR 88.) Her flashbacks trigger panic attacks where her heart races, and she becomes sweaty and shaky. Id. She has difficulty focusing during a panic attack. Id. She experiences panic attacks about three times every other day, with each attack lasting about 30 minutes. With medication the attack lasts about 15 minutes. (AR 88, 96.) She is forgetful and feels like she is a burden to others. (AR 89.) She receives mental health treatment through her primary care provider. (AR 91.) She has young children. Her children's father and her grandmother help her care for the children. (AR 90.) Her grandmother lives with her and is generally always there. Id.
Vocational expert Lynda Berkley testified that a hypothetical individual that can perform work at the light exertional level, and can understand, remember, and apply simple and detailed but uninvolved instructions, maintain concentration, persistence, and pace to apply such instructions throughout a workday where there are breaks in between, and interact occasionally and superficially with the public, supervisors, and coworkers and who can adapt to minor changes in a routine work setting, can perform work as a marker, mail sorter, and router. (AR 98-99.) The vocational expert further testified that in order for an individual to learn a new job, the individual is required to have more than superficial contact with coworkers and supervisors, such that if the individual's contact is limited to just superficial contact, the three jobs that she identified would be precluded. (AR 99-100.)
The vocational expert testified that an individual that is off task more than 10% of an eight-hour workday is precluded from all work. (AR 99.) Lastly, the vocational expert testified that if an individual's ability to maintain attention and concentration is diminished such that they were off task for 45 minutes every other day the individual would be precluded from work. (AR 100-101.)
The ALJ's Decision
At step one, the ALJ determined that Evans has not engaged in substantial gainful activity since July 26, 2019, the application date. (AR 58.) At step two, the ALJ determined that Evans suffers from the severe impairments of fibromyalgia and SLE. Id. At step three, the ALJ determined Evans does not suffer from an impairment or combination of impairments that met or equaled a listed impairment. (AR 61-62.) After step three but before step four, the ALJ determined Evans's residual functional capacity (“RFC”) as follows:
[T]he claimant has the [RFC] to perform light work as defined in 20 CFR 416.967(b) except [the claimant] can lift and carry 10 pounds frequently and 20 pounds occasionally; stand or walk 6 out of 8 hours; sit 6 out of 8 hours; occasionally climb ramps/stairs, balance, kneel, crouch, and crawl; never climb ladders, ropes, or scaffolds; frequently stoop; and frequently handle
and finger. She can work in an environment without frequent exposure to extreme temperatures and no exposure to work hazards. She can understand, remember, and apply simple and detailed but uninvolved instructions; maintain concentration, persistence, and pace to apply such instructions through a workday with regular breaks in between; interact with the public, supervisors and co-workers as long as those interaction are occasionally (sic) and superficial; and adapt to minor changes in a routine work setting.(AR 62.) At step four, the ALJ determined that Evans has no past relevant work. (AR 67.) At step five, the ALJ found that Evans is able to perform other work that exists in significant numbers in the national economy such as marker, mail sorter and router. (AR 68.)
ISSUES ON REVIEW
Evans raises three (3) issues for review. (Doc. 15 at 1-2.) First, she claims that the ALJ failed to explain how she considered both the supportability and consistency factors in rejecting Dr. Campbell's opinion. Id. at 1. Second, she claims the ALJ failed to provide clear and convincing reasons for rejecting her symptom testimony. Id. at 2. Third, she urges the ALJ erred in relying on vocational expert testimony in finding that she can perform work that exists in the national economy. Id. The Commissioner concedes that the ALJ erred in failing to consider both the supportability and consistency factors in evaluating Dr. Campbell's opinion. (Doc. 23 at 6.) The Commissioner also concedes that the ALJ erred in failing to resolve a conflict between the vocational expert's testimony and the RFC. Id. at 8. The Commissioner otherwise defends the ALJ's decision. (Doc. 23.)
ANALYSIS
The ALJ's Two Admitted Errors
The Commissioner admits that the ALJ erred stating:
Defendant concedes that the ALJ erred when evaluating Dr. Campbell's opinion and by not resolving a conflict between the vocational expert's testimony and the RFC. ...
[T]he ALJ erred when evaluating Dr. Campbell's opinion. Dr. Campbell opined that Plaintiff was unable to work an eight-hour day and had a variety of other limitations that were work preclusive (AR 726-27). The ALJ found this opinion was not persuasive because it was inconsistent with normal examination findings from other sources both before and after Dr. Campbell wrote his opinion (AR 65). The ALJ supported this analysis with substantial evidence, pointing to specific examinations throughout 2020 and 2021 that documented normal musculoskeletal, extremity, and neurological findings, non-tender and non-swollen joints, and normal x-ray findings (AR 65; see AR 520, 672-73, 684, 695). However, the ALJ did not evaluate whether Dr. Campbell's opinion was supported, despite the requirements of 20 C.F.R. § 416.920c(c)(2). Although either lack of support or inconsistency with the record can support a finding that an opinion is not persuasive, the ALJ should have evaluated both of these factors, consistent with 20 C.F.R. § 416.920c. See 82 Fed.Reg. at 5854 (“[a] medical opinion without supporting evidence, or one that is inconsistent with evidence from other sources, will not be persuasive regardless of who made the medical opinion” (emphasis added)).
...
At step five, the ALJ relied on vocational expert testimony to find that Plaintiff could do work existing in substantial numbers in the national economy, in occupations such as marker, mail sorter, and router (AR 67-68; see AR 97-100). However, the vocational expert's testimony conflicted with the RFC. Plaintiff was limited to superficial interaction with the public, supervisors, and coworkers (AR 62). The vocational expert testified that the occupations he identified required training during which interaction with supervisors and coworkers would be more than superficial (Tr. 100). More than superficial interaction “would preclude work” (AR 100). Because of this conflict, the ALJ's step five finding was not supported by substantial evidence.(Doc. 23 at 6-8.) Although the Commissioner admits that the ALJ erred, he insists that neither of the two admitted errors permit the district court to remand the matter for the immediate calculation and award of benefits. Id. at 7-8. The Commissioner instead asks the district court to remand the matter to allow the ALJ reevaluate Dr. Campbell's medical opinion and to resolve the inconsistencies between the vocational expert's testimony and the RFC. Id. at 13-14.
This Court does not reach the issue of whether remand for the immediate calculation and payment of benefits is warranted based on the two admitted errors by the ALJ. Instead, as more fully set forth below, this Court finds that the ALJ also erred in evaluating Evans's symptom testimony. It is on this ground that this Court finds that remand for the immediate calculation and payment of benefits is the appropriate remedy.
Credibility Analysis
The ALJ gave three reasons for discounting Evans's symptom testimony. The ALJ discounted Evans's symptom testimony finding her claims are inconsistent with “some rather normal physical examinations and imaging studies and some noncompliance issues[,]” and determined that Evans's written statements “also indicate various activities of daily living.” (AR 63.) Evans urges that the ALJ's reasons are not specific, clear and convincing. (Doc. 15 at 17-22.) The Commissioner defends the ALJ's credibility determination. (Doc. 23 at 8-13.) As explained below, this Court finds that the ALJ's reasons for discounting Evans's symptom testimony are not specific, clear and convincing reasons supported by substantive evidence.
Legal Standard
Disability benefits cannot be granted based solely on a claimant's subjective complaints. See 42 U.S.C. § 423(d)(5)(A) (“[a]n individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability”); 20 C.F.R. pt. 404.1529(a) (statements about pain or other symptoms will not alone establish disability). Where a claimant has provided objective medical evidence of an impairment that could reasonably produce the alleged symptoms, the ALJ evaluates the intensity and persistence of the symptoms. See SSR 16-3p, 2016 WL 1119029. The ALJ is required to evaluate whether a claimant's statements about her symptoms are consistent with the objective medical evidence and the other evidence in the record. See 20 C.F.R. pt. 404.1529(c)(2), (3); SSR 16-3p, 2016 WL 1119029. The ALJ must make specific findings about a claimant's allegations, properly supported by the record and sufficiently specific to ensure a reviewing court that the claimant's subjective testimony was not arbitrarily discredited. See Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (citing Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en banc)). Unless there is affirmative evidence that a claimant is malingering, an ALJ's reasons for discounting the claimant's testimony regarding the severity of his symptoms must be “clear and convincing.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). “If the ALJ's . . . finding is supported by substantial evidence, [a court] may not engage in second-guessing.” Kelly L. K. v. Saul, No. 5:20-cv-1773-MAR, 2021 WL 3269981, at *6 (C.D. Cal. July 30, 2021) (citation omitted).
The Court takes the ALJ's stated reasons out of order.
Analysis
Activities of Daily Living
The ALJ determined that Evans's functionality is inconsistent with a finding of disability reasoning:
Additionally, the claimant's written statements also indicate various activities of daily living. She cares for her two young children, e.g., “I wake up, feed my kids, get them dressed” and I completely care for my children's need” with her fiance/family's help (Ed. 5E/3). She acknowledged that she
has no difficulty with self-care (Id.). She prepares simple meals, and does laundry, sweeps, and washes dishes with breaks (Ex. 5E/4). She has no driver's license but indicated that she drives (Ex. 5E/5). She shops for groceries and household need 1-2 times a month and takes 3-4 hours at a time (Id.).(AR 63.) Evans argues the ALJ's reliance on her activities of daily living is not specific, clear and convincing reason because the ALJ failed to find that a substantial part of Evans's day is spent engaged in pursuits involving the performance of physical functions that are transferrable to a work setting. (Doc. 15 at 21-22; Doc. 24 at 10-11.) The Commissioner defends the ALJ's reliance on Evans's activities of daily living insisting that “[t]he ALJ reasonably found that her ability to care for her two young children, take care of herself, prepare simple meals, do laundry and other chores, drive, and shop, contradict claims of a totally debilitating impairment.” (Doc. 23 at 13.)
Evans's Adult Function Report does not state the number of children that she has nor did Evans testify as to the number of children that she has. (AR 90, 257-64.)
In the Ninth Circuit, “[w]ith respect to daily activities . . . if a claimant ‘is able to spend a substantial part of [her] day engaged in pursuits involving the performance of physical functions that are transferable to a work setting, a specific finding as to this fact may be sufficient to discredit a claimant's allegations.'” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (quoting Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)).
As explained below, this Court finds that the ALJ failed to reference record evidence that supports a finding that Evans spends a substantial part of her day engaged in pursuits involving the performance of physical functions that are transferable to a work setting. The ALJ relied on Evans's Adult Function Report. (AR 63, citing AR 257-64.) In her Adult Function Report, Evans explained that she “completely cares for [her] children's needs with [her] fiance's and family[‘s] help.” (AR 258.) She also stated, “My brother and fiance help change diapers and watch my kids, also feed and bathe kids.” Id. Regarding her performance of household chores, Evans explained that it takes her “2 hrs or more” to do “laundry, sweeping, [and] dishes . . . [be]cause [she] take[s] break[s] in between.” (AR 259.) She reported only doing these limited household chores “2-3 times” per week. Id. Evans reported that she shops in stores for groceries and household needs once or twice a month for three to four hours at a time. (AR 260.) This Court finds that these statements from Evans's Adult Function Report do not support a finding that Evans spends a substantial part of her day engaged in the pursuit of physical functions that are transferrable to a work setting.
This Court also finds that the Commissioner improperly relied solely upon Evans's statements in her Adult Function Report regarding the care she provides for her children to the exclusion of her hearing testimony. As mentioned above, in her Adult Function Report Evans reports caring for her children with her family's help. In her testimony, Evans explained just how much help she receives. For instance, Evans testified that her children's father picks up the children “for a couple [of] days at a time and the rest of the time [her] grandm[other] helps.” (AR 90.) She also testified that her grandmother lives with her and is “generally home” with Evans and the children. Id. The ALJ did not mention this testimony in determining that Evans is not as limited as she claims.
This Court also finds that the Commissioner wrongly concluded that Evans drives. See AR 63 (ALJ finding that, “She has no driver's license but indicated that she drives.”). In her Adult Function Report Evans answered the question, “When going out, how do you travel?” by checking the “Walk” and “Drive a car” boxes. (AR 260.) Evans also answered the question, “Do you drive?” by checking the “No” box and writing, “no license.” Id. There is no evidence of malingering and, based on this record, this Court determines that the ALJ's conclusion that Evans drives-without a license-is not based on substantial evidence. The ALJ relied on Evans's check-the-box answer that she drove a car-an answer that could have simply been a mistake-to find that she was not as limited by her symptoms as she claims. This Court finds that this was error.
On the Adult Function Report, the “Drive a car” box is right next to the “Ride in a car” box. (AR 260, 268.) In Evans's fiance's Third Party Adult Function Report, Evans's fiance answered the question, “When going out, how does he/she travel” by checking the “Walk” and “Ride in a car” boxes. (AR 268.) Thus, Evans's fiance's Third Party Adult Function Report supports a finding that Evans does not drive.
The ALJ also failed to explain how Evans's ability to (1) care for her children with substantial help from her family members; (2) sweep, mop and do dishes over a two to three hour time period with breaks; and (3) shop in stores once or twice a month for groceries and household items is connected to the work-preclusive specific symptoms that she alleges. This Court is persuaded by other courts in this district that have determined that an ALJ's failure to establish that a claimant spends a substantial part of his or her day engaged in pursuits that involve the performance of physical functions that are transferable to a work setting is not a specific, clear and convincing reason to discount symptom testimony. See, e.g., Dagley v. Comm'r of Soc. Sec. Admin., No. CV-20-01370-PHX-JJT, 2022 WL 343382, at *6 (D. Ariz. Feb. 4, 2022) (finding where the ALJ concluded, without citing to any of the record, that the claimant's daily activities supported the ALJ's conclusion that claimant could work, the [c]ourt could not meaningfully review the reasons “as the ALJ does not tie any of these activities ... to any of the work-preclusive specific symptoms alleged”); Heltzel v. Comm 'r of Soc. Sec. Admin., No. CV-19-1287-PHX-DMF, 2020 WL 914523, at *3 (D. Ariz. Feb. 26, 2020) (finding the ALJ failed to provide a clear and convincing reason to discount claimant's testimony when the ALJ “did not explain how Plaintiff's [activities of daily living] contradicted his alleged symptoms and thereby undermined his credibility”); Franz v. Comm'r of Soc. Sec. Admin., No. CV 18-04114-PHX-DLR, 2020 WL 582466, at *3 (D. Ariz. Feb. 6, 2020) (finding the claimant's activities, including her attempts to work, attend church, perform household chores, or shop were “not inconsistent with her statements regarding her pain and limitations stemming from her physical impairments,” when the ALJ failed to specify how claimant's church attendance, shopping, or chores, undermined her credibility and the ALJ “did not determine the extent to which Plaintiff takes breaks or how long these activities take her”); Merceri v. Comm'r of Soc. Sec. Admin., No. CV 19-05328-PHX-CDB, 2021 WL 9098240, at *14 (D. Ariz. Mar. 21, 2021) (holding that “[t]he ALJ did not sufficiently explain how the reported daily activities of daily living were at odds with the severity of the reported symptoms, nor establish that a substantial part of Merceri's typical day was spent engaged in activities inconsistent with disabling limitations.”) (emphasis in original.)
The Commissioner relies on Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012), urging that “[e]ven if [the claimant] had some difficulty with [her daily] activities, ‘they may be grounds for discrediting the claimant's testimony to the extent that the contradict claims of a totally debilitating impairment.'” (Doc. 23 at 13.) The claimant in Molina alleged a complete inability to tolerate minimal human contact without suffering debilitating panic attacks but the evidence established that she engaged in activities such as walking her grandchildren to school, attending church, and shopping. Molina, 674 F.3d at 1113. Here, unlike in Molina, the ALJ has not pointed to evidence that establishes that Evans engages in physical activities-such as walking her children to school-that are contradictory to her complaints of pain. This Court is not persuaded by Molina.
The Commissioner also relies on Ahearn v. Saul, 988 F.3d 1111, 1117 (9th Cir. 2021). (Doc. 23 at 13.) In Ahearn, the ALJ relied on the claimant's work history, medical records and daily activities to reduce the claimant's credibility. The Ninth Circuit highlighted the ALJ's reliance on the claimant's work history recognizing, “Ahearn testified that for much of his life he had issues with cognition, endurance, speed, depression, breathing, and sleeping. Yet the record shows that Ahearn was gainfully employed during his twenties.” 938 F.3d at 1117. The Ninth Circuit also pointed out that the record demonstrated that the claimant worked as a janitor, then as a home care attendant, and that his employment ended due to funding issues, rather than due to poor performance. Id. The court of appeals also noted that Ahearn was able to play video games and watch television “for sustained periods,” use a public library computer, socialize with friends, use public transportation, in addition to his ability to perform personal care, household chores and shop in stores. Id.
This Court is not persuaded by Ahearn. In contrast to the claimant in Ahearn, Evans has no relevant work history. There is no evidence that Evans is able to play video games “for sustained periods.” Nor is there evidence that Evans takes public transportation or socializes with friends. Evans's Adult Function Report establishes that she ‘hardly listen[s] to music anymore [be]cause [she] ha[s] no interest, [she is] too depressed, [and she] do[es not] read books [be]cause [her] vision[] [is] really blurry now . . .[.]” (AR 261.) She also reports that she does not socialize with people “very much at all anymore.” (AR 262.)
In light of the foregoing, this Court finds that the ALJ's reliance on Evans's activities of daily living is not a specific, clear and convincing reason to discount her symptom testimony.
Normal Examination Findings/Consullalive Examination Observations
The ALJ supported her reduced credibility determination with a finding that:
. . . Although the claimant testified that she has difficulty standing more than 30 minutes and difficulty sitting more than 30 minutes, these alleged limitations are not consistent with the findings on physical examinations, see below. Even at her consultative examination in February 2020, Dr. Montijo-Tai found her to have no pain behaviors while sitting or standing (8F/4). There is also no evidence of muscle weakness or atrophy. There is no evidence of complications from management of her symptoms from SLR or fibromyalgia with medications.(AR 63.)
Evans urges that the ALJ's notation of some normal observations from time-limited findings do not “cancel out” observations and testing results that are consistent with her symptom testimony, including positive fibromyalgia tender points, tenderness at the cervical and lumbar spine, swelling at her hands, muscle spasms, and positive straight leg raise testing. (Doc. 15 at 19.) She relies on Thomas v. Comm'r of Soc. Sec. Admin., No. CV-18-04230-PHX-JZB, 2020 WL 1000023, at *7 (D. Ariz. Mar. 2, 2020), and Johnson v. Comm'r of Soc. Sec. Admin., No. CV-18-00012-PHX-JJT, 2019 WL 1375688, at *2 (D. Ariz. Mar. 27, 2019). (Doc. 15 at 19.)
In Thomas v. Comm'r of Soc. Sec. Admin., 2020 WL 1000023, at *7, the district court found that while “the ALJ states that a number of medical records ‘showed mostly normal gait, strength, tone, and range of motion without tenderness swelling or deformity[]' . . . these findings are not mutually exclusive with debilitating pain[.]. ” The claimant in Thomas suffered, like Evans does, from fibromyalgia and Thomas specifically recognized that, “in fact, fibromyalgia, which the ALJ cites as one of [the plaintiff's severe impairments, is a disease that causes severe pain without symptoms such as muscle weakness, unusual sensory functions, or abnormal reflexes.” Id. (citing Revels v. Berryhill, 874 F.3d 648, 656 (9th Cir. 2017); Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004) (finding that fibromyalgia is diagnosed “entirely on the basis of the patients' reports of pain and other symptoms”) (underlining added).
In Johnson v. Comm'r of Soc. Sec. Admin., 2019 WL 1375688, at *2, the district court found that “[t]he ALJ cites evidence that [the p]laintiff demonstrated normal range of motion, muscle strength, and gait, but these evaluations are not the same as the treating physicians' assessments of severe chronic pain, which is supported by substantial evidence in the record by way of extensive treatment notes. Johnson relied upon Rawa v. Colvin, 672 Fed. App'x 664, 667 (9th Cir. 2016), in which the United States Court of Appeals for the Ninth Circuit recognized that, “it is beyond the scope of an ALJ's authority to conclude that the lack of muscle atrophy in a claimant means the claimant does not suffer from chronic pain as noted by the treating physician.”
This Court is persuaded by Thomas, Johnson and Rawa. Like the claimant in Thomas, Evans suffers from, inter alia, fibromyalgia. The court in Thomas specifically recognized that fibromyalgia is medical condition that causes severe pain without symptoms such as muscle weakness. Thomas, supra. In Rawa, the Ninth Circuit held that “[i]t is beyond the scope of the ALJ's authority to offer such a medical opinion based solely on his own personal speculation.” 672 Fed.Appx. at 667. This Court finds that that the ALJ erred when she reduced Evans's credibility based upon her finding that there “is also no evidence of muscle weakness or atrophy.” (AR 63.)
The Commissioner urges that the ALJ reasonably relied on normal objective findings to discount Evans's symptom testimony contending that the Ninth Circuit has held that when “objective medicine in the record is inconsistent with the claimant's subjective testimony, the ALJ may indeed weigh it as undercutting such testimony.” (Doc. 23 at 12.) The Commissioner relies on Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022).
This Court is not persuaded by Smartt. In Smartt, the ALJ identified a direct contradiction in Smartt's testimony that she did not drive, and Smartt's questionnaire where she reported that she routinely drove, to discount her symptom testimony. Id. at 497. There were also inconsistencies regarding Smartt's use of mobility aids. Id. Here, in contrast, the ALJ did not identify any such specific inconsistencies.
The ALJ also determined that since “no pain behaviors were observed when standing up or sitting down” at a consultative examination, Evans's complaints of pain are not credible. (AR 63.) Evans urges that her failure to exhibit pain behaviors while sitting or standing at appointments is not a specific, clear and convincing reason supported by substantial evidence to reject her symptom testimony. (Doc. 15 at 19.) She relies on Gerstner v. Berryhill, 879 F.3d 257, 262 (7th Cir. 2018), where the United States Court of Appeals for the Seventh Circuit determined that “the ... notes that the ALJ emphasized simply described how Gerstner presented on the days of her appointments. They were not general assessments.”
Evans also urges the ALJ's determination that she was not observed to have pain behaviors at her consultative examination is similar to an ALJ's observation that a claimant did not appear to be in pain during a hearing. (Doc. 15 at 20.) Relying on Ekola v. Colvin, No. 2:13-CV-1812-HRH, 2013 WL 4425783, at *6 (D. Ariz. Sept. 9, 2014), Evans contends that such a determination is an insufficient justification for reducing a claimant's credibility. (Doc. 15 at 20.) The Commissioner argues that the ALJ “reasonably relied on objective evidence showing that [Evans's] pain improved over time and did not interfere with her functional abilities . . .” (Doc. 23 at 11-12.)
This Court agrees with Evans that the ALJ's finding that she was not observed to have pain behaviors at her consultative examination is similar to a conclusion that is drawn in other one-time observation settings, such as at an administrative hearing. For instance, in Gallant v. Heckler, 753 F.2d 1450, 1455 (9th Cir. 1984), the Ninth Circuit found error where the ALJ based his rejection of the claimant's subjective complaints of pain in part on the claimant's demeanor at the administrative hearing noting that he sat for over an hour without any apparent distress. The Ninth Circuit held, “[t]he fact that a claimant does not exhibit physical manifestations of prolonged pain at the hearing provides little, if any, support for the ALJ's ultimate conclusion that the claimant is not disabled or that his allegations of constant pain are not credible.” Id. (citing Day v. Weinberger, 522 F.2d 1154, 1156-57 (9th Cir. 1975)).
This Court is not persuaded by the Commissioner's assertion that the ALJ reasonably relied on objective evidence showing that Evans's pain did not interfere with her functional abilities. A lack of objective medical findings alone is not a sufficient basis to support an adverse credibility determination. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (lack of objective medical evidence to support subjective symptom allegations cannot form the sole basis for discounting pain testimony); Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (recognizing that “[t]he fact that a claimant's testimony is not fully corroborated by the objective medical findings, in and of itself, is not a clear and convincing reason for rejecting it.”); Dschaak v. Astrue, No. CV-10-1010-PK, 2011 WL 4498835, at *1 (D. Or. Sept. 27, 2011) (holding that “once the[ ] other bases for the ALJ's decision were discarded as erroneous, the ALJ's [adverse subjective testimony] determination could not rely solely on conflicts with the medical evidence”). As explained herein, this Court finds that the other reasons relied upon by the ALJ for discounting Evans's symptom testimony-activities of daily living, normal examination findings, consultative examination observations, and noncompliance-are not specific, clear and convincing reasons. Accordingly, this Court finds that a lack of objective medical support, standing alone, is not a specific, clear and convincing reason for rejecting Evans's symptom testimony.
Noncompliance
Lastly, the ALJ found that Evans “stopped seeing a rheumatologist for a period, and per her testimony, she recently found a new rheumatologist but then he retired and now [she] must find a new one.” (AR 63.) Evans points out that the record establishes that she told Dr. Campbell that she was not comfortable with one of her rheumatologists. (AR 76768.) Evans testified to this at the hearing and also explained that one of her rheumatologists had retired. (AR 90.)
The ALJ also mentioned that Evans received a final warning for the absence of her pain medication on urine testing, and that she had not returned to pain management treatment. (AR 65.) But, Evans urges that the ALJ failed to consider that she (Evans) told Dr. Campbell that she felt Oxycodone was not effectively treating her pain and that she was taking gabapentin to help with some pain. Evans insists that the ALJ ignored the reasons for her noncompliance with recommended treatment and that this was error. (Doc. 15 at 20-21.) The Commissioner defends the ALJ's decision pointing out the general rule that a “[f]ailure to follow a treatment plan, or not pursuing ‘an aggressive treatment program' permits the inference that the claimant's symptoms were not as ‘all-disabling as [she] reported.' Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008).” (Doc. 23 at 10.)
This Court finds that the ALJ erred in failing to consider Evans's explanations for stopping some of her pain medication and the disruption to her rheumatology visits in reaching her reduced credibility determination. See White v. Comm'r of Soc. Sec. Admin., No. CV-22-08113-PCT-JAT, 2023 WL 4862684, at *10 (D. Ariz. July 31, 2023) (finding an ALJ's use of noncompliance with treatment unsupported by substantial evidence when the ALJ failed to consider the claimant's reasons for not completing treatment, citing Social Security Ruling 16-3p that “provides an ALJ may not ‘find an individual's symptoms inconsistent with the evidence of record' because of ‘fail[ure] to follow prescribed treatment' without ‘considering possible reasons' for the failure, including inability to afford treatment.”) (citation omitted).
As mentioned, relying on Tommasetti, 533 F.3d at 1039, the Commissioner urges that it is proper for an ALJ to consider Evans's noncompliance with treatment. (Doc. 23 at 20, 12.) While it is true that as a general rule an ALJ is permitted to consider a claimant's noncompliance with a treatment plan as undermining a claimant's complaints of rehabilitating pain, an ALJ is also required to consider a claimant's stated reasons for her noncompliance with treatment. See White, supra. This Court finds that the ALJ failed to do so here and the ALJ's failure is not seriously contested by the Commissioner. (Doc. 23.)
In sum, this Court determines that the ALJ's failed to provide specific, clear and convincing reasons supported by substantial evidence for her reduced credibility determination.
The ALJ's Error is Not Harmless
An ALJ's decision will not be reversed for an error that is harmless. Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citing Burch, 400 F.3d at 679). An error is harmless if the reviewing court can confidently conclude that no reasonable ALJ could have reached a different disability determination. Stout, 454 F.3d at 1056. Stated another way, an error is harmless if it is inconsequential to the non-disability determination. Id. at 1055. Here, the ALJ's non-disability determination relied on her decision to discredit Evans's symptom testimony. Thus, this Court cannot conclude that the ALJ's errors are harmless. See Brown-Hunter, 806 F.3d at 492-93 (holding that an ALJ's failure to adequately support reason for discounting claimant testimony “will usually not be harmless”); Kelly L. K., 2021 WL 3269981, at *6 (recognizing that “ALJ's failure to give specific, clear, and convincing reasons to reject the claimant's testimony regarding the severity of the symptoms is not harmless, because it precludes the [c]ourt from conducting a meaningful review of the ALJ's reasoning.”).
Remand For Immediate Calculation and Payment of Benefits
With error established, the district court has the discretion to remand or reverse and award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Evans requests that the district court exercise its discretion and order remand without a rehearing. A case may be remanded under the credit-as-true rule for an award of benefits where:
(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Even where all the conditions for the credit-as-true rule are met, the court retains “flexibility to 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.” Id. at 1021.
This Court finds the requirements for the application of the credit-as-true rule are met. First, the record is fully developed. The record contains medical opinions, sufficient medical evidence, claimant testimony, and vocational expert testimony. The Commissioner concedes the ALJ erred in evaluating Dr. Campbell's medical opinion and erred in failing to resolve a conflict between the vocational expert's testimony and the RFC. As discussed above, this Court finds that the ALJ erred in rejecting Evans's symptom testimony. The vocational expert testified that the limitations Evans endorses precludes her from engaging in competitive employment. (AR 98-101.) Considering the vocational expert's testimony, crediting as true Evans's symptom testimony would result in a determination that she is disabled. See Lingenfelter v. Astrue, 504 F.3d 1028, 1041 n. 12 (9th Cir. 2007) (remanding for benefits determination without further administrative proceedings, the vocational expert testified that claimant's reported symptoms would preclude work finding that “[f]urther proceedings are unnecessary because the ALJ did not provide a legally sufficient basis for rejecting Lingenfelter's testimony, which alone establishes that he is entitled to benefits.”). This Court also finds that there is no serious doubt that Evans is disabled.
Considering the foregoing, this Court recommends that the district court remand this matter for the immediate calculation and award benefits.
RECOMMENDATION
For the foregoing reasons, it is RECOMMENDED that the district court REVERSE the decision of the Administrative Law Judge and REMAND the matter to the Commissioner for the immediate calculation and award of benefits. Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: 4:23-cv-343-JGZ.