Opinion
CV-23-00253-TUC-SHR (JR)
03-11-2024
Juan Carlos Garcia, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable Jacqueline M. Rateau, United States Magistrate Judge.
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), Plaintiff Juan Carlos Garcia (“Garcia”) seeks judicial review of a final decision by the Commissioner of Social Security (“Commissioner”). The matter was referred to the undersigned for Report and Recommendation and is ripe for review. (Doc. 13, 18, 22, 23.) Based on the pleadings and the administrative record (“AR”), the undersigned recommends that the district court reverse the decision of the ALJ and remand this matter for the immediate calculation and payment of benefits.
BACKGROUND
Procedural History
Almost ten (10) years ago, on July 13, 2014, Garcia filed an application for Supplemental Security Income (“SSI”) benefits alleging disability later amended to that same date. (Administrative Record (“AR”) 926, 1094.) Garcia's application was denied initially and upon reconsideration. (AR 67-79 (initial denial); AR 81-95 (reconsideration denial).) On February 6, 2017, an administrative hearing was held. (AR 11-43 (February 2017 hearing transcript).) On July 3, 2017, Administrative Law Judge (“ALJ”) Charles Davis (“Davis”) issued an unfavorable decision. (AR 96-107.) On May 22, 2018, the Social Security Administration Appeals Council denied Garcia's request for review and adopted ALJ Davis's decision as the agency's final decision. (AR 114-20.)
Garcia appealed to the United States District Court for the District of Arizona and, on June 7, 2019, United States Magistrate Judge Leslie A. Bowman issued an Order vacating the ALJ's decision and remanding the matter to the agency for further proceedings. (AR 988-97.) Judge Bowman found that the ALJ failed to provide specific, clear and convincing reasons supported by substantial evidence to reject Garcia's symptom testimony. (AR 995-96.)
On remand from the Appeals Council, and after a second administrative hearing, on March 26, 2020, ALJ Davis issued a second unfavorable decision. (AR 923-43 (2020 unfavorable decision); AR 944-66 (March 2020 hearing transcript).) On January 24, 2023, ALJ Davis's 2020 unfavorable decision became the final agency decision when the Appeals Council denied Garcia's request for review. (AR 894-900.) See 42 U.S.C. §§ 405(g), 1383(c)(3).
The ALJ's 2020 Unfavorable Decision
At step one, the ALJ determined Garcia had not engaged in substantial gainful activity since his application date. (AR 928.) At step two, the ALJ determined Garcia suffered from the severe impairments of diabetes mellitus, degenerative disc disease, bipolar I disorder, post-traumatic stress disorder, and panic disorder. (AR 928.) At step three, the ALJ determined Garcia did not suffer from an impairment or combination of impairments that met or equaled a listed impairment. (AR 929-30.) After step three but before step four, the ALJ determined Garcia's residual functional capacity (“RFC”) as follows:
[T]he claimant ha[s] the residual functional capacity to perform a wide range of light work. The claimant can lift and/or carry and push and/or pull up to 10 pounds frequently and 20 pounds occasionally. Further, he can sit for up to six hours in an eight-hour workday and stand and/or walk for up to six hours in an eight-hour workday. The claimant can perform work involving simple routine tasks and occasional complex tasks. Finally, he is limited to frequent interaction with the public and coworkers.(AR 930-31.) At step four, the ALJ determined that Garcia is unable to perform any past relevant work. (AR 934.) At step five, the ALJ found Garcia able to perform other work that exists in the national economy such as routing clerk, price marker, and cafeteria worker. (AR 936.)
The background is primarily taken from Plaintiff's opening brief to which no objection has been made.
Garcia, born in 1975, was a younger person in the eyes of the administration as of the date the application was filed. (AR 935.) He has a high school education. Id. He has no past relevant work. Id.
In 2009, Garcia was in a serious motor vehicle crash resulting in him suffering, inter alia, severe back pain. AR 305-349 (emergency room records; Drexel Heights Fire District accident report.) An August 2009 thoracic spine MRI showed a compression fracture at the T12 level and a disc osteophyte complex (bone spurs) at the T10-11 level with mild canal stenosis. (AR 535.) An October 2009 lumbar/thoracic spine MRI showed facet degeneration at the L5-S1 level and confirmed disc protrusions at the T9-10 and T10-11 levels that caused moderate stenosis. (AR 536-37.)
On August 15, 2014, orthopedic surgeon Andrew P. Schannen, M.D., evaluated Garcia. (AR 1096.) Garcia reported increased back and left leg pain after a recent fall a month earlier. Id. On examination, Garcia had tenderness to palpation at his lumbar and thoracic spine. (AR 1098.) Thoracic and lumbar spinal x-rays showed moderate degenerative disc disease at the thoracic spine with a compression deformity at the T12 level, and degenerative disc disease at the L1-2 level. (AR 1099-1100.)
In May 2015, Garcia was examined by Sudha Kalva, M.D., and reported suffering from sharp back pain that radiated to his left leg since his 2009 motor vehicle accident; he rated the pain an 8 out of 10. (AR 666.) The pain increased with changing positions. Id. On examination, Garcia had mild pain with thoracic and lumbar motion, and positive straight leg raise testing on the left side at 45-60 degrees. (AR 670.) He was prescribed Naproxen. (AR 671.)
On November 1, 2015, Garcia saw Paul Swenson, M.D., reporting mid and low back pain with radiation down his left leg. (AR 650.) He is recorded as reporting:
Onset years ago after traumatic vertebral facture. Pain is mid and low back with radiation down left leg. Had appointment with pain medicine, but did not have authorization number so was turned away. Previously has participated in PT. Has tried gabapentin (stopped because there were too many listed side effects), tramadol (stopped because he didn't like having to
come every month for narcotic Rx) and naproxen (which he feels barely works).Id. Dr. Swenson noted Garcia's chronic back pain was “post traumatic with symptoms of sciatica.” (AR 655.)
On January 26, 2016, Jose M. Chavez, D.O., evaluated Garcia for pain management. (AR 557.) Garcia reported mid and lower back pain with left knee pain and left leg numbness since his 2009 car crash. (AR 558.) His pain increased with prolonged walking and standing. Id. Garcia is recorded as having tried naproxen with minimal relief and Tramadol with some relief. Physical therapy increased his pain. Id. Recent weight loss did not result in any pain relief. (AR 560.) On examination Garcia had tenderness to palpation at the thoracic spine with mild spasms, painful and limited lumbar motion, weakness at the left lower extremity, and positive straight leg raise testing at the left lower extremity (4560 degrees). (AR 559-60.) Dr. Chavez diagnosed chronic pain syndrome and chronic pain associated with significant psychosocial dysfunction. (AR 560.) Percocet was prescribed. (AR 561.)
At a February 23, 2016 pain management follow-up, Garcia's left leg numbness had improved, and he rated his pain a 7 out of 10. (AR 569-70.) On examination, Garcia had tenderness to palpation at the thoracic spine with mild spasms, painful and limited lumbar range of motion, weakness at the left lower extremity, and positive straight leg raise testing at the left lower extremity. (AR 571-72.) Percocet was refilled. (AR 572.)
At an April 22, 2016 pain management follow-up, Garcia reported good and bad days, and that he took pain medication on bad days. (AR 574-75.) On examination, he had tenderness to palpation at the thoracic spine with mild spasms, painful and limited lumbar range of motion, weakness at the left lower extremity, and positive straight leg raise testing at the left lower extremity (45-60 degrees). Percocet was continued. (AR 576-77.) At a June 17, 2016 follow-up, similar pain and positive objective findings were recorded. (AR 582-85.)
A July 21, 2016 thoracic spine MRI showed disc protrusions at the T8-9 and T9-10 levels with mild facet degeneration, a disc extrusion at the T10-11 level with mild to moderate spinal cord flattening with central stenosis, and a disc bulge at the T11-12 level with mild facet degeneration. (AR 530-31.)
At an August 9, 2016 pain management follow-up, Garcia still reported having good and bad days, and that his pain level was a 7-8 out of 10. (AR 587-88.) On examination, Garcia had tenderness to palpation at the thoracic spine with mild spasms, painful and limited lumbar motion, weakness at the left lower extremity, and positive straight leg raise testing at the left lower extremity (45-60 degrees). (AR 590-91.) Percocet was continued and Flexeril was added. (AR 591.)
On September 8, 2016, Garcia reported Flexeril caused side effects such as headaches and feeling “hung over.” (AR 597-98.) On examination, he had tenderness to palpation at the thoracic spine with mild spasms, painful and limited lumbar motion, weakness at the left lower extremity, and positive straight leg raise testing at the left lower extremity. (AR 600-601.) Percocet was refilled, Flexeril was discontinued, and naproxen was added for pain and inflammation. (AR 601.)
At an October 6, 2016 pain management follow-up, Garcia had started physical therapy, which was helpful, but painful. (AR 609-10; AR 775-801 (physical therapy records).) He rated his pain at 7-8 out of 10. (AR 610.) On examination, Garcia had tenderness to palpation at the thoracic spine with mild spasms, painful and limited lumbar motion, and positive straight leg raise testing at the left lower extremity. (AR 611.) Garcia was noted to have “suboptimal relief” with current medications, and his Percocet prescription was increased. (AR 612.)
Garcia's back and knee pain persisted in November 2016 and February 2017, and examination findings remained positive at the spine and lower extremities. (AR 614-17 (November record), 871-75 (February record).) Additional physical therapy was ordered, nd Percocet and naproxen were refilled. (AR 617, 875, 738-74 (physical therapy records).)
At a March 30, 2017 pain management follow-up, Garcia's knee pain is recorded as “ha[ving] been a little worse” since his physical therapy ended. (AR 1343-44.) On examination, he had tenderness to palpation at the thoracic spine with mild spasms, painful and limited lumbar motion, mild pain with knee motion, weakness at left lower extremity, and positive straight leg raise testing at the left lower extremity. (AR 1346.) Percocet and naproxen were refilled. (AR 1347.)
At a May 25, 2017 pain management follow-up, Garcia is again recorded as reporting that his pain has increased since he finished physical therapy. (AR 1362-63.) On examination, he had tenderness to palpation at the thoracic spine with mild spasms, painful and limited lumbar motion, mild pain with knee motion, weakness at left lower extremity, and positive straight leg raise testing at the left lower extremity. (AR 1365.) Percocet and naproxen were continued, and additional physical therapy was ordered for when Garcia was eligible under his insurance. (AR 1366.)
On June 1, 2017, Garcia was seen for left knee pain and was observed with tenderness to palpation at the left knee, positive patellar grinding, and atrophy at the left knee vastus medialis obliquus muscle. (AR 1104.)
At July, September, November, and December 2017, and January through March 2018 pain management follow-ups Garcia's pain is recorded as continuing. (AR 1376 (July 2017), AR 1392 (September 2017), AR 1402 (November 2017), AR 1418 (December 2017), AR 1435 (January 2018), AR 1446 (February 2018), AR 1468 (March 2018).) On examination, he is recorded as having tenderness to palpation at the thoracic spine with mild spasms, painful and limited lumbar motion, mild pain with knee motion, weakness at left lower extremity, and positive straight leg raise testing at the left lower extremity. (AR 1377-78, 1393-94, 1403-1404, 1419-20, 1436-37, 1447-48, 1468-69.) His Percocet and naproxen were again refilled. (AR 1379, 1395, 1405, 1421, 1438, 1449, 1470.)
At a pain management visit on April 9, 2018, Garcia's pain was a 7 out of 10. (AR 1478-79.) He had tenderness to palpation at the thoracic spine with mild spasms, painful and limited lumbar motion, mild pain with knee motion, weakness at left lower extremity, and positive straight leg raise testing at the left lower extremity. (AR 1481.) Percocet and naproxen were again refilled. (AR 1482.) Garcia was scheduled to receive knee injections on April 9, 2018 and July 17, 2018, but the injections were cancelled due to his high glucose levels. (AR 1478-79, 1552-53.)
Garcia's back and knee pain continued and ongoing positive objective findings were observed at subsequent pain management visits where Percocet and naproxen were again refilled. (AR 1501-04 (May 2018); AR 1516-19 (June 2018); AR 1552-56 (July 2018); AR 1567-71 (August 2018); AR 1584-87 (September 2018); AR 1595-98 (October 2018); AR 1612-15 (November 2018); AR 1627-30 (December 2018); AR 1645-48 (January 2019); AR 1658-61 (February 2019); AR 1673-76 (March 2019); AR 1683-85 (April 2019); AR 1696-98 (May 2019); AR 1707-11 (June 2019); AR 1719-22 (July 2019); AR 1738-42 (August 2019); AR 1753-57 (September 2019).) Garcia underwent additional physical therapy in 2019 through 2020 for his low back and left knee pain. (AR 2094-2122.)
Hearing Testimony
2017 Hearing
Garcia testified he is unable to work due to back and knee pain, depression, and difficulty with memory. (AR 15, 17.) Garcia's back pain travels down his legs. (AR 26.) He has good days where the pain is not as bad, and he has days where he suffers severe pain. (AR 21.) He can walk for about 15 minutes before needing to sit down. (AR 24.) Sometimes Garcia thinks he can do more with his medication, but he pays for it the next day. (AR 27.) He has difficulty sleeping and suffers from depression. (AR 31.) Garcia's lack of sleep also affects his mood. (AR 32.) He also suffers from PTSD symptoms related to his 2009 car accident. Id.
2020 Hearing
Garcia testified that he is unable to work due to pain that limits his ability to stand and sit for extended amounts of time and affects his concentration. (AR 947-48, 955.) He has pain at his back and knee. (AR 955.) He has difficulty standing for more than 15 minutes without increased pain. (AR 953.) His pain can vary, and he has bad days where he can only stand for 15 minutes at a time, and other days where he can stand for up to an hour. (AR 954.) He can sit in a regular business chair for about 15 minutes. Id. Garcia's pain increases with activity. (AR 956.) He has to lay down for at least a couple of hours a day. (AR 956-57.) He has difficulty with short term memory. (AR 957.) He testified that he is unable to work a full-time job because of pain and, “I just can't think straight, man.” (AR 960.)
The vocational expert (“VE”) testified that a hypothetical individual who can perform work at the light exertional level, and is limited to simple, routine tasks with occasional complex tasks and frequent interaction with coworkers and the general public on a superficial work basis, could perform work as a routing clerk, price marker, and cafeteria worker. (AR 962-63.) The VE also testified that an individual with limitations consistent with Garcia's testimony would be precluded from all work. (AR 965-66.)
ISSUES ON REVIEW
Garcia raises two issues for review. (Doc. 18 at 1.) First, he claims the ALJ failed to support his reduced credibility determination with specific, clear and convincing reasons. Id. at 14-20. Second, he urges that the ALJ failed to provide a reason germane to each provider in discounting the opinions of Mary Vincenz, NP, Jeneane Keller, DNP, and Lori Danker, RNP. Id. at 20-24. He seeks remand for the immediate calculation and payment of benefits. Id. at 25. The Commissioner argues against Garcia's claims of error. (Doc. 22.)
As more fully explained below, this Court agrees with Garcia on his first claim of error. This Court finds that the requirements for the credit-as-true rule are met and recommends that the ALJ's 2020 unfavorable decision be reversed and this case be remanded for the immediate calculation and payment of benefits.
Because this Court agrees with Garcia on his first claim of error and also finds that this matter should be remanded for the immediate calculation and payment of benefits this Court does not reach Garcia's second claim of error.
STANDARDS OF REVIEW
A claimant is disabled for the purpose of receiving benefits if she is unable to engage in any substantial gainful activity due to an impairment which has lasted, or is expected to last, for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. pt. 404.1505(a). "The claimant bears the burden of establishing a prima facie case of disability." Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996).
“The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court 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 so 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, 981 F.2d at 1019 (quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner's decision, however, “cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)).
DISCUSSION
Credibility Analysis
The ALJ gave five reasons for discounting Garcia's symptom testimony. First, the ALJ found that Garcia's symptom testimony was inconsistent with certain normal findings from examinations or mild to moderate degenerative changes shown on imaging. (AR 93132.) Second, the ALJ found that Garcia's symptoms improved with treatment. (AR 933.) Third, the ALJ found that Garcia underwent only conservative treatment. Id. Fourth, the ALJ relied upon Garcia's limited work history to discount his symptom testimony. Id. Fifth, the ALJ relied on Garcia's activities of daily living to discount his symptom testimony. (AR 932.)
Garcia urges that the ALJ's reasons are not specific, clear and convincing. (Doc. 18 at 14-20.) The Commissioner defends the ALJ's credibility determination. (Doc. 22 at 412.) As explained below, this Court agrees with Garcia.
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.” Reddickv. 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.
The ALJ determined that Garcia's functionality is inconsistent with a finding of disability reasoning:
. . . the claimant has described daily activities which are not limited to the extent one would expect, given the complaint of disabling symptoms. Notably, despite alleging that severe pain and other symptoms prevent him from working, the claimant reported that he is able to do some shopping, dress himself, bathe, care for his hair, and perform other daily activities without issue (Exhibit 5E). Moreover, although the claimant alleged that he has severe difficulty concentrating, he is able to manage his finances without difficulty (Exhibit 5E). For these reasons, the ability to engage in such activities is indicative of a higher level of functioning than has been alleged and is inconsistent with total disability.(AR 932.) Garcia argues the ALJ's reason is not specific, clear and convincing because the ALJ failed to find that a substantial part of Garcia's day is spent engaged in the stated activities of daily living-shopping, dressing, bathing, and caring for his hair. (Doc. 22 at 20; Doc. 25 at 9.) The Commissioner does not seriously defend the ALJ's reliance on Garcia's activities of daily living pointing out that “[t]he ALJ did not find that Plaintiff could work solely because of these activities . . . [t]hey were one piece of evidence, among many, that show that Plaintiff was not as limited as he claimed.” (Doc. 24 at 11.)
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)).
This Court finds that the ALJ failed to reference record evidence that supports a finding that Garcia spends a substantial part of his day engaged in shopping, dressing, bathing, or caring for his hair. The ALJ relied on Garcia's Adult Function Report. (AR 932, citing AR 234-41.) The Adult Function Report asks a claimant, that “if” the claimant goes shopping, does the claimant shop “in stores,” “by phone,” “by mail,” or “by computer.” (underlining added). (AR 237.) Garcia checked the box indicating that he shopped in stores. Id. Garcia explained that he shops for “whatever my family goes to get.” Id. Thus, it appears that if Garcia goes shopping, he shops in stores with his family. See AR 237 (explaining that he shops for “whatever my family goes to get”). The Adult Function Report also asks a claimant, “How often do you shop and how long does it take?” Id. Garcia responded, “I don't know.” Id. Garcia's Adult Function Report statements do not support a finding that Garcia spends a substantial part of his day shopping in stores.
Furthermore, the ALJ failed to explain how Garcia's ability to shop, dress, bathe, and care for his hair is connected to the work-preclusive specific symptoms that he alleges. This Court is persuaded by the numerous 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 where those activities suggest some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent that they contradict claims of a totally debilitating impairment.” (Doc. 22 at 8-9.) However, 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 the claimant in Molina, Garcia has not alleged such debilitating impairments and the ALJ has not identified any activities that are contradictory to Garcia's complaints of pain. This Court is not persuaded by Molina.
In light of the foregoing, this Court finds that the ALJ's reliance on Garcia's representations that he shops in stores and that he dresses, bathes and cares for his hair is not a specific, clear and convincing reason to discount his symptom testimony.
Limited Work History
The ALJ determined:
. . . the claimant has an inconsistent work history with substantial gainful activity level earnings posted in only a single reporting year since first working in 1995 and less than $53,000 in total earnings during his lifetime (Exhibit 12D). The fact that he has not engaged in substantial gainful activity on a regular basis at any time detracts from his current allegations of total disability. Significantly, the only year the claimant engaged in substantial gainful activity was 2011, two years after his 2009 alleged onset date, which establishes that the claimant has been more capable than he has purported (Exhibit 12D). It follows that the alleged impairments are not necessarily as restricting as has been alleged.(AR 933.) Garcia urges that the ALJ's rationale concerning his work history effectively implies that he is lazy rather than disabled. (Doc. 18 at 19.) Garcia points out that SSR 163p prohibits “delv[ing] into wide-ranging scrutiny of the [a] claimant's character and apparent truthfulness.” (Doc. 18 at 19-20.) The Commissioner does not address Garcia's claim but urges that “the Court does not need to uphold every reason the ALJ provides to affirm the ALJ decision to discount the claimant's allegation.” (Doc. 22 at 11.)
This Court agrees with Garcia that the ALJ's reliance on substantial gainful activity from 2011-three (3) years before Garcia's amended alleged onset date-is from so long ago that it is not a clear and convincing reason to discount his symptom testimony. Indeed, the Commissioner fails to make any effort to defend this reason cited by the ALJ. Instead, the Commissioner acknowledges that the Court need not uphold every reason provided by the ALJ for discrediting a claimant's symptom testimony. Thus, the Commissioner appears to concede that this reason provided by the ALJ is not specific, clear and convincing.
This Court finds that the Commissioner's reliance on almost a decade old substantial gainful activity is not a clear and convincing reason to support a reduced credibility determination.
Conservative Treatment
The ALJ determined, “although the claimant has received treatment for the allegedly disabling impairment, that treatment has been essentially routine and/or conservative in nature, which demonstrates that the impairments are not as limiting as has been alleged.” (AR 933.) Garcia urges that his course of treatment includes years-long usage of narcotic pain medication is not conservative. (Doc. 18 at 19; Doc. 23 at 6.) The Commissioner contends that, “the ALJ reasonably determined that [Garcia's] treatment, conservative or not, provided adequate symptom relief.” (Doc. 22 at 11.)
As laid out above, Garcia's providers prescribed narcotic pain medication over a years-long period of treatment. Caselaw Garcia relies on demonstrates that such a course of treatment signifies that Garcia's providers considered that his symptoms and complaints of pain were genuine. See Scrogham v. Colvin, 765 F.3d 685, 701 (7th Cir. 2014) (finding “a claimant's election to undergo serious treatment, such as having surgery and ‘taking heavy doses of strong drugs,' indicates that the claimant's complaints of pain are likely credible . . . the fact that physicians willingly prescribed drugs and offered other invasive treatment indicated that they believed the claimant's symptoms were real.”). (citations omitted.)
Additionally, as also pointed out by Garcia, the ALJ failed to specify what level of treatment Garcia would need to undergo in order for his symptom testimony to be considered valid. See Merceri, 2021 WL 9098240, at *13 (holding that “[t]he ALJ also stated Merceri ‘has not generally received the level of medical treatment one would expect' ‘for a totally disabled individual,' and characterized Merceri's treatment as ‘essentially routine and conservative in nature.' ... However, the ALJ failed to specify exactly what level of medical treatment one would expect for Merceri's symptom testimony to be considered valid, and this statement overlooks the fact that Merceri was treated with both opiates and other prescription painkillers for her physical pain, and numerous antidepressant and anti-psychotic medications for depression and PTSD.”).
The Commissioner fails to address either of Garcia's positions. (Doc. 22 at 11.) This Court determines that the ALJ's finding that Garcia's treatment was conservative is not a clear and convincing reason to discount his symptom testimony.
The Commissioner asserts that Garcia declined “back injections” and urges that this contradicts his claims of extreme pain and demonstrates effective conservative treatment. (Doc. 22 at 11.) However, Garcia's rejection of purportedly prescribed back injections is not a reason relied upon by the ALJ for discounting Garcia s symptom testimony. See AR 933. This Court is precluded from affirming based on a rationale upon which the agency did not rely. See Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1225-26 (9th Cir. 2017). Stated differently, this Court is “constrained to review the reasons the ALJ asserts.” BrownHunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (quoting Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)).
Normal Examinations/Perceived Improvement/Lack of Objective Evidence
The ALJ supported his reduced credibility determination with a finding that:
. . . the longitudinal record does not document notable objective findings or other evidence throughout the claimant's treatment history that would support the degree of limitation the claimant has alleged . . . Concerning the alleged physical impairments, the claimant's diagnoses include diabetes mellitus and degenerative disc disease. Record shows that the claimant complained of pain and numbness and some physical examinations note findings that would offer some support to the claimants allegations. They include a slight broad based gait, limited lumbar flexion, diffuse tenderness in the thoracic and lumbosacral regions of the spine, minimal sacral tenderness, mild spasm affecting the thoracic and lumbosacral area, four of five strength of the left lower extremity, positive straight leg raise testing on left, and other mild findings (Exhibits 5F, 19F, 26F, 28F, and 31F). However, these findings fail to support limitations consistent with total disability. Moreover, the same evidence often documents rather normal findings including, other than those specifically noted above, normal range of motion, full strength, normal muscle tone, intact sensation, normal reflexes, an ability to ambulate without assistance, upright posture, normal special testing, and normal diabetic foot screen (Exhibits 5F, 19F, 23F, 26F, 28F, and 31F) . . . In addition, imaging studies generally describe mild or at most mild to moderate degenerative changes affecting the spine in the context of a remote August 2009 compression fracture of T12, inconsistent with total disability (Exhibits 12F; 13F; 15F; 16F; 23F, pages 64-66; and 28F, pages 4-6). Notably, considering these imaging studies in chronological order, it is apparent that the claimant's back impairment has improved to a degree over time . . .(AR 931-32.)
Normal Examination Findings: In discounting Garcia's symptom testimony, the ALJ relies on normal examination findings that are contained in medical records that also document abnormal examination findings. See AR 931 (noting that “[m]oreover, the same evidence often documents rather normal findings including, other than those specifically noted above, normal range of motion, full strength, normal muscle tone, intact sensation, normal reflexes, an ability to ambulate without assistance, upright posture, normal special testing, and normal diabetic foot screen (Exhibits 5F, 19F, 23F, 26F, 28F, and 31F)”).
Significantly, the ALJ failed to grapple with and explain why he determined that the normal findings in Garcia's medical records were more significant and worthy of being relied upon than the abnormal findings. See Curtis v. Comm'r of Soc. Sec. Admin., No. CV-18-00649-PHX-DGC, 2018 WL 6418486, at *7 (D. Ariz. Dec. 6, 2018) (finding ALJ erred by rejecting claimant's symptom testimony based on observations of “normal range of motion of all four extremities,” because “the ALJ fails to explain why the abnormal findings do not support [p]laintiff's general pain testimony or why the normal findings should be given more weight than the abnormal findings . . .”). (citation omitted.)
Additionally, it is well established that a use of normal findings to impugn a claimant's symptom testimony is improper cherry-picking. See Thomas v. Comm 'r of Soc. Sec. Admin., No. CV-18-04230-PHX-JZB, 2020 WL 1000023, at *7 (D. Ariz. Mar. 2, 2020) (holding that “the ALJ states that a number of medical records ‘showed mostly normal gait, strength, tone, and range of motion without tenderness swelling or deformity.' But these findings are not mutually exclusive with debilitating pain . . . ” (record citation omitted)); Johnson v. Comm 'r of Soc. Sec. Admin., No. CV-18-00012-PHX-JJT, 2019 WL 1375688, at *2 (D. Ariz. Mar. 27, 2019) (holding that “[t]he ALJ cites evidence that Plaintiff 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.”); Rawa v. Colvin, 672 Fed. App'x 664, 667 (9th Cir. 2016) (noting 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).
The Commissioner contends that the ALJ reasonably relied on normal objective findings to discount Garcia'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. 22 at 5.) The Commissioner relies on Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022). In Smartt however, 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. The ALJ in this case did not identify any such specific inconsistencies.
Perceived Improvement:
The ALJ determined that “it is apparent that the claimant's back impairment has improved to a degree over time[.]” (AR 932.) A response to treatment is insufficient to reject a claimant's symptoms in the absence of a showing the symptoms were no longer debilitating. See Lopez v. Colvin, 194 F.Supp.3d 903, 911 (D. Ariz. 2016). “The fact that a claimant experiences a brief period of reprieve following treatment does not support a finding that her pain was controlled . . . the ALJ must show that the treatment was capable of providing lasting relief.” Lopez, 194 F.Supp.3d at 911 (citing Flaten v. Sec. of Health & Human Servs., 44 F.3d 1453, 1462 (9th Cir. 1995)).
While the record demonstrates that Garcia, at times, reported degrees of improvement while on different medications, the record overwhelmingly demonstrates that Garcia was consistent in his reports of the level of his ongoing pain. See, e.g., AR 581 (June 2016 pain level of 7/10); AR 587 (August 2016 pain level of 7/10); AR 597 (September 2016 pain level of 7/10); AR 609 (October 2016 pain level of 7/10); AR 1645 (January 2019 pain level of 8/10); AR 1658 (February 2019 pain level is 8/10); AR 1673 (March 2019 pain level is 6/10); AR 1695 (May 2019 pain level is 8/10); AR 1707 (June 2019 pain level is 9/10). Notably, on May 24, 2019, Garcia's pain level is recorded reporting that his pain level is an 8/10 on a 0 to 10 pain scale. (AR 1695.) On June 25, 2019, Garcia is recorded as reporting that his pain level is a 9/10 on a 0 to 10 pain scale. (AR 1707.) Surely this is not evidence that Garcia's treatment “was capable of providing [him with] lasting relief.” Lopez, 197 F.Supp.3d at 911.
The Commissioner relies on Warre v. Comm's of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006), urging that “impairments that can be controlled with treatment are not disabling under the Act.” (Doc. 22 at 7.) (internal citations omitted.) However, in Warre, a childhood disability cessation case, the child claimant was originally found disabled due to a listed medical condition, but at the time of the continuing disability review it was undisputed that the child's condition no longer met the listed criteria for disability. 439 F.3d at 1006. Warre is factually inapposite and unpersuasive.
Objective Medical Evidence:
The ALJ found that “imaging studies generally describe mild or at most mild to moderate degenerative changes affecting the spine in the context of a remote August 2009 compression fracture of T12, inconsistent with total disability (Exhibits 12F; 13F; 15F; 16F; 23F, pages 64-66; and 28F, pages 4-6).” (AR 932.)
Exhibit 15F is an August 2009 MRI of Garcia's thoracic spine. (AR 535.) This report concludes, inter alia, “[t]here is a T12 compression fracture . . .” Id. The referenced portion of Exhibit 23F is an August 2009 spinal imaging record noting a “[compression fracture of T12.” (AR 693-95.) Exhibit 16F is an October 5, 2009, thoracic spine MRI report that also documents Garcia's T12 compression fracture. (AR 536-37.) The referenced portion of Exhibit 28F is an August 2014 imagining report that records an impression of, inter alia, “[a]ge indeterminate anterior wedge compression deformity of the T12 vertebral body with loss of approximately 40% of vertebral body height anteriorly.” (AR 1099-1100.) Exhibit 12F and Exhibit 13F are the same report of Garcia's July 21, 2016 thoracic spine MRI. (AR 530-33.) This report finds, inter alia, “[c]hronic anterior wedging is 20% at ¶ 11 and 30% at ¶ 12.” (AR 530, 532.)
The above identified imaging reports consistently record Garcia's compression fracture at ¶ 12. It is true that the August 2014 imaging report notes a “wedge compression deformity of the T12 vertebral body with loss of approximately 40% of vertebral body height anteriorly[]” and that the July 2016 MRI report notes “chronic anterior wedging is 20% at ¶ 11 and 30% at ¶ 12.” (AR 530, 1100.) However, as explained below, this Court finds that the ALJ's conclusion that “considering these imagining studies in chronological order, it is apparent that the claimant's back impairment has improved to a degree over time” is an 522 F.2d 1154improper interpretation of raw medical data.
It is not clear if this report is of an x-ray or an MRI but it appears to be of an x-ray.
An ALJ cannot make medical judgments, only legal judgments. See Howell v. Kijakazi, No. 20-CV-2517-BLM, 2022 WL 2759090, at *7 (S.D. Cal. July 14, 2022) (citing Day v. Weinberger, 1156 (9th Cir. 1975)). In formulating a claimant's RFC, an ALJ cannot interpret raw medical data. Howell, 2022 WL 2759090, at *7 (citing Day, 522 F.2d at 1156 (the ALJ was not qualified as a medical expert and therefore could not permissibly go outside the record to consult medical textbooks for the purpose of making his own assessment of the claimant's physical condition)); Nguyen v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (“As a lay person . . . the ALJ was simply not qualified to interpret raw medical data in functional terms and no medical opinion supported the determination.”); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) (“ALJs must not succumb to the temptation to play doctor and make their own independent medical findings.”).
MRIs, radiological studies, and x-rays are raw medical data. See Mack v. Saul, No. 1:18-CV-01287-DAD-BAM, 2020 WL 2731032, at *2 (E.D. Cal. May 26, 2020) (ALJ improperly determined RFC after considering MRIs and radiological studies absent a doctor's opinion regarding the effect on plaintiff's ability to work on a function-by-function basis); Escudero v. Comm'r of Soc. Sec., No. 1:18-CV-01136-EPG, 2019 WL 4917634, at *2 (E.D. Cal. Oct. 4, 2019) (RFC not based on substantial evidence where the ALJ considered x-rays and records indicating Plaintiff's diabetes diagnoses post-dated the accepted physician's opinion on which the ALJ based the RFC). Courts have recognized that such imagining study records generally reflect only the findings, impressions, and medical diagnoses, which are difficult for a lay person to interpret. See Escudero, 2019 WL 4917634, at *2 (finding “descriptions of medical documents post-dating the physician's opinions appear to be very medical in nature and not susceptible to a lay understanding.”).
This Court finds that the ALJ erred in determining that “considering these imagining studies in chronological order, it is apparent that the claimant's back impairment has improved to a degree over time.” This Court also finds the ALJ erred in concluding that Garcia's “impairments are more than accounted for by a limitation to the range of light work outlined above.” The ALJ erroneously interpreted raw MRI and other imaging data in reaching these determinations.
It is true, as the Commissioner contends, that the ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence. (Doc. 22 at 10-11.) See Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir. 2008). However, that is not what the ALJ did here. The ALJ did not resolve an ambiguity in the medical evidence when he declared, based on MRIs and x-rays, that “it is apparent that the claimant's back impairment has improved to a degree over time.” As demonstrated above, the ALJ interpreted MRIs and x-rays-raw medical data-and based upon his lay interpretation of this raw medical data concluded that Garcia's impairments improved to a degree over time. This was erroneous.
Finally, 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); Dschaak v. Astrue, No. CV-10-1010-PK, 2011 WL 4498835, at *1 (D. Ariz. 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 above, this Court finds that the other reasons relied upon by the ALJ for discounting Garcia's symptom testimony-activities of daily living, purported conservative treatment, limited work history, some normal examination findings, and purported improvement-are not specific, clear and convincing reasons that support a reduced credibility determination. Accordingly, a lack of objective medical evidence, now standing alone, is not a specific, clear and convincing reason for rejecting Garcia's symptom testimony.
In sum, this Court determines that the ALJ's reduced credibility determination is not supported by specific, clear and convincing reasons.
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 his decisions to discredit Garcia'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”).
Remand For Immediate Calculation and Payment of Benefits is Recommended
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). Garcia requests that the district court exercise its discretion and order remand without a rehearing. (Doc. 18 at 20.) 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 and extensive. The record contains medical opinions, sufficient medical evidence, Garcia's testimony, and VE testimony. As discussed above, this Court finds that it was error for the ALJ to have rejected Garcia's symptom testimony. The VE testified:
Q. If I use the claimant's testimony of being only able to stand for 15 minutes at a time, sit for 15 minutes at a time, lift no more than ten pounds, just based on that, would there be jobs for such an individual?
A. I'm not aware of any that would allow a person to sit for 15 minutes and then stand for 15 minutes. Getting up and down that often would not only impact their productivity but would cause distractions to people working close by.(AR 966.) Considering the VE's testimony, crediting as true Garcia's symptom testimony would result in a determination that he is disabled. See, e.g., Revels v. Berryhill, 874 F.3d 648, 669 (9th Cir. 2017) (holding that “[i]f credited as true, DAR Nolan's opinion establishes that Revels is disabled, because the VE testified that someone with the limitations established by DAR Nolan could not work.”) This Court also finds that there is no serious doubt that Garcia is disabled.
In 2019, ALJ Davis was found to have erred in rejecting Garcia's symptom testimony. As explained above, this Court finds that ALJ Davis again committed error in rejecting Garcia's symptom testimony a second time. This Court finds that under these circumstances, the failure to reverse the decision of the ALJ and remand with the instruction to calculate and award benefits would be an abuse of discretion. See Garrison, 750 F.3d at 1018 (reversing for abuse of discretion the district court's decision to remand the case to the ALJ for further proceedings instead of remanding to the ALJ for the calculation and award of appropriate benefits).
Considering the foregoing, remand with instructions to immediately calculate and award benefits is recommended.
RECOMMENDATION
It is recommended that the District Court, after its independent review, reverse the decision of the ALJ and remand to the Commissioner for immediate calculation and payment 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-253-SHR.