Opinion
6:20-cv-00677-MK
01-20-2022
GARY M., [1] Plaintiff, v. COMMISSIONER, Social Security Administration, Defendant.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI, (HE / HIM)UNITED STATES MAGISTRATE JUDGE
Plaintiff Gary M. seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying his application for disability insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”). The Court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, the Commissioner's decision should be REVERSED and this case should be REMANDED for further proceedings.
PROCEDURAL BACKGROUND
Plaintiff filed his DIB application in May 2016 with an alleged onset date of June 30, 2013. Tr. 172‒73. His application was denied initially and upon reconsideration. Tr. 98, 104. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), and a hearing was held in September 2017. Tr. 34‒59, 107. On April 24, 2019, the ALJ issued a decision finding Plaintiff not disabled within the meaning of the Act. Tr. 13‒28. The Appeals Council denied Plaintiffs request for review, making the ALJ's decision the final decision of the Commissioner. Tr. 1-3. This appeal followed.
“Tr.” citations are to the Administrative Record. ECF No. 14.
FACTUAL BACKGROUND
Plaintiff was 57 years old on his alleged onset date. Tr. 60. He is a college graduate and has past work experience as a cataloger in a library and a general librarian Tr. 40, 53. Plaintiff alleged disability based on a neurocognitive disorder, osteoarthritis of knees, subclinical hypothyroidism, hearing impairment, diabetes mellitus, insomnia, Meniere's disease, adjustment disorder, and autism spectrum disorder. Tr. 61.
LEGAL STANDARD
The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted). The court must weigh “both the evidence that supports and detracts from the [Commissioner's] conclusion.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). “Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's.” Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007); see also Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (holding that the court “must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation”). “[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quotation omitted).
The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
The Commissioner has established a five-step process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. First, the Commissioner determines whether a claimant is engaged in “substantial gainful activity”; if so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the Commissioner determines whether the claimant has a “medically severe impairment or combination of impairments.” Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). A severe impairment is one “which significantly limits [the claimant's] physical or mental ability to do basic work activities[.]” 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled. Yuckert, 482 U.S. at 141. At step three, the Commissioner determines whether the impairments meet or equal “one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Id; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the analysis proceeds. Yuckert, 482 U.S. at 141.
At this point, the Commissioner must evaluate medical and other relevant evidence to determine the claimant's “residual functional capacity” (“RFC”), an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations his impairments impose. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 416.945(b)-(c). At the fourth step, the Commissioner determines whether the claimant can perform “past relevant work.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can work, he is not disabled; if he cannot perform past relevant work, the burden shifts to the Commissioner. Yuckert, 482 U.S. at 146 n.5. At step five, the Commissioner must establish that the claimant can perform other work that exists in significant numbers in the national economy. Id. at 142; 20 C.F.R. §§ 404.1520(e)-(f), 416.920(e)-(f). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ'S DECISION
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity from his alleged onset date through his date last insured. Tr. 15. At step two, the ALJ found that Plaintiff had the following severe impairments: bilateral knee disorder; hearing loss; Meniere's disease; autism spectrum disorder; and neurocognitive disorder. Id.
At step three, the ALJ found that Plaintiff did not have an impairment or combination thereof that met or equaled a listed impairment. Tr. 16. The ALJ found that Plaintiff had the RFC to perform medium work, with the following limitations:
He could occasionally climb ladders/ropes/scaffolds. He could frequently climb ramps/stairs, kneel, crouch, and crawl. He could be
exposed to no more than moderate noise. He could have occasional exposure to hazards, such as moving mechanical parts and unprotected heights. He was limited to work with a reasoning level of 2. He was limited to performing simple, routine, and repetitive tasks. He could make simple work[-]related decisions. He could have occasional public interaction, and occasional supervisor and coworker interaction. He could tolerate occasional changes in a routine work setting.Tr. 19.
At step four, the ALJ determined that Plaintiff was unable to perform past relevant work as a cataloger in a library. Tr. 26. At step five, the ALJ found, in light of Plaintiff s age, education, work experience, and RFC, there were jobs that existed in significant numbers such that Plaintiff could sustain employment despite his impairments. Id. The ALJ thus found Plaintiff was not disabled within the meaning of the Act. Tr. 27.
DISCUSSION
Plaintiff asserts that remand is warranted for three reasons: (1) the ALJ erred by improperly rejecting his subjective symptom testimony; and (2) the ALJ erred in his weighing of the medical opinion evidence; and (3) failed to identify legally sufficient reasons to reject lay witness statements. The Court addresses each argument in turn.
I. Subjective Symptom Testimony
Plaintiff asserts that the ALJ erred by improperly rejecting his subjective symptom testimony. Pl.'s Br. 5-8, ECF No. 17. When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms complained of, and the record contains no affirmative evidence of malingering, “the ALJ can reject the claimant's testimony about the severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (internal citation omitted). A general assertion [that] the claimant is not credible is insufficient; instead, the ALJ must “state which . . . testimony is not credible and what evidence suggests the complaints are not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be “sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted). If the ALJ's finding regarding the claimant's subjective symptom testimony is “supported by substantial evidence in the record, [the court] may not engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (internal citation omitted).
Social Security Ruling (“SSR”) 16-3p provides that “subjective symptom evaluation is not an examination of an individual's character, ” and requires that the ALJ consider all the evidence in an individual's record when evaluating the intensity and persistence of symptoms.SSR 16-3p, available at 2016 WL 1119029, at *1-2. The ALJ must examine “the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Id. at *4.
Effective March 28, 2016, SSR 16-3p superseded and replaced SSR 96-7p, which governed the assessment of claimant's “credibility.” See SSR 16-3p.
Plaintiff testified that his neurocognitive disorder slowed his ability to process information. Tr. 42. That caused him to frequently miss deadlines, which ultimately led to his termination from his prior employment. Id. Plaintiff's hearing impairment interfered with his ability to hear what others say to him. Tr. 50. His anxiety caused memory lapses. Tr. 49.
The ALJ rejected Plaintiff's subjective symptom testimony on the grounds that while Plaintiff's impairments could reasonably be expected to cause the alleged symptoms, Plaintiff's “statements concerning the intensity, persistence and limiting effect of these symptoms [were] not entirely consistent with the medical evidence and other evidence for the reasons explained in [the] decision.” Tr. 20.
The Commissioner asserts that the ALJ properly rejected Plaintiffs subjective symptom testimony because: (A) his testimony was inconsistent with his activities of daily living; and (B) his testimony was inconsistent with the medical record. Def.'s Br. 8-12, ECF No. 18.
A. Activities of Daily Living
As noted, the Commissioner asserts that the ALJ properly rejected Plaintiffs testimony based upon his activities of daily living. Def.'s Br. 9-10. In some circumstances, activities of daily living may form the basis for an ALJ to discount a claimant's testimony in two ways: (1) as evidence a claimant can work if the activities “meet the threshold for transferable work skills”; or (2) where the activities “contradict [a claimant's] testimony.” Orn, 495 F.3d at 639. A disability claimant, however, need not be utterly incapacitated to receive disability benefits, and sporadic completion of minimal activities is insufficient to support a negative credibility finding. Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001); see also Reddick, 157 F.3d at 722 (9th Cir. 1998) (requiring the level of activity to actually be inconsistent with the claimant's alleged limitations to be relevant to his or her credibility).
Plaintiffs daily activities in this case fail to justify the ALJ's rejection of his testimony. For example, although Plaintiff was able to perform light housework chores, prepare meals, drive, study for class, and grocery shop, the Ninth Circuit has consistently held that such a modest level of activity is not sufficient to reject subjective complaints. See Vertigan, 260 F.3d at 1050 (“This court has repeatedly asserted that the mere fact that a Plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from [her] credibility as to her overall disability. One does not need to be ‘utterly incapacitated' in order to be disabled.”) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
Further, the ALJ's limited discussion of Plaintiff s daily activities failed to explain “what symptom testimony [was] not credible and what facts in the record lead to that conclusion.” Smolen, 80 F.3d at 1284 (citing Dodrill, 12 F.3d at 918). As this Court has repeatedly explained, “an ALJ's mere recitation of a claimant's activities is insufficient to support rejection of the claimant's testimony as a matter of law.” Shirley C v. Comm 'r, Soc. Sec. Admin., No. 1:20-cv-01212-MK, 2021 WL 3008265, at *6 (D. Or. July 15, 2021). In other words, other than generally summarizing Plaintiffs activities, the ALJ failed to explain how any of the listed activities undermined her subjective symptom testimony. Therefore, this was not a clear and convincing reason to reject Plaintiffs testimony. See David H. v. Comm 'r, Soc. Sec. Admin., No. 3:19-cv-00571-MK, 2020 WL 1970811, at *4 (D. Or. Apr. 24, 2020) (rejecting ALJ's reliance on claimant's activities where “the ALJ did not explain how these minimal activities undermined [the claimant's] symptom testimony”) (citation omitted).
B. Medical Record
The Commissioner next asserts that the ALJ properly rejected Plaintiffs subjective symptom testimony because his symptoms were inconsistent with the medical record. Def's Br. 10-12. In some circumstances, an ALJ may reject subjective complaints where the claimant's “statements at [their] hearing do not comport with objective medical evidence in [their] medical record.” Bray v. Comm 'r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009).
1. Physical Impairments
Regarding Plaintiffs physical impairments, the Commissioner directs the court to Plaintiffs primary care records and the records of Dr. Steven Paulissen. See Def.'s Br. 11 (citing Tr. 15-16, 1109). The Commissioner asserts that (1) despite Plaintiffs claims of disability in part due to his osteoarthritis of knees, on examinations, he had normal reciprocal gait pattern, and he could perform a squat and rise with ease (citing Tr. 20, 21, 1049, 1050); and (2) that treatment records show that Plaintiff only received “conservative treatment.” Def.'s Br. 10-12.
Treatment records as well as the “type, dosage, effectiveness, and side effects of any medication” are appropriate factors for an ALJ to consider in assessing a claimant's subjective symptom testimony. 20 C.F.R. §§ 404.1529(c), 416.929(c); see also Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007). Evidence of a favorable response to conservative treatment-including the effective “use of anti-inflammatory medication”-can undermine a claimant's report of disabling pain. See Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008).
Here, the ALJ cited Plaintiffs medical record including an x-ray showing moderate degenerative changes of the medial and lateral compartments. Tr. 20 (citing Tr. 1035). The ALJ also cited Plaintiffs use of Ibuprofen to manage his pain. Id. (citing Tr. 1045). These were clear and convincing reasons to discount Plaintiffs subjective symptom testimony regarding his physical complaints. See Parra, 481 F.3d at 750-51 (finding use of “over-the-counter pain medication” sufficient evidence of conservative treatment to discount a claimant's testimony); see also Shermer v. Colvin, No. 3:12-cv-01932-SI, 2014 WL 2013403, at *7 (D. Or. Apr. 29, 2014) (finding the use of over-the-counter Ibuprofen evinced conservative treatment and supported ALJ's negative credibility determination).
2. Hearing Impairments
Regarding Plaintiff's hearing impairments, medical records from September 2017 indicated that (1) Plaintiff had “excellent word understanding in his right ear and fair word understanding in his left ear”; and (2) Plaintiff has severe to profound sensorineural hearing loss in his left ear and has mild to moderate mid-frequency sensorineural hearing loss in his right ear. See Def.'s Br. 12 (citing Tr. 680). After discussing the September 2017 records and Plaintiff's testimony, the ALJ explained that she accounted for Plaintiff's reports of difficulty understanding others “by restricting him to work environments with no more than a moderate noise.” Tr. 20. Although Plaintiff offers his preferred interpretation of the record, see Pl.'s Br. 8- 10, the ALJ's reading was rational and therefore must be upheld. See Batson v. Comm'r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) (explaining that variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a rational reading of the record).
3. Cognitive Impairments
As noted regarding Plaintiff's cognitive impairments, he testified that his neurocognitive disorder slowed his ability to process information. Tr. 42. The ALJ rejected Plaintiff's testimony on the basis that “treatment notes contain only intermittent complaints of mental symptoms; there [were] few objective findings indicative of significant functional restrictions.” Tr. 22. The ALJ also cited Plaintiff's medical record in rejecting his cognitive complaints, including an examination by Dr. Thomas Potter during which Plaintiff was well-groomed, casually dressed, made good eye contact, and was cooperative throughout the examination. Tr. 22 (citing Tr. 1038-42).
As noted, an ALJ may reject subjective complaints that do not comport with medical evidence. See Bray, 554 F.3d at 1227. However, an ALJ may not cherry-pick isolated instances of improvement when the record as a whole reflects longstanding disability. See Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014); see also Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). Moreover, a lack of objective evidence may not be the sole basis for rejecting a claimant's subjective complaints. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (explaining that “[o]nce a claimant produces objective medical evidence of an underlying impairment, an ALJ may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence”) (internal quotation marks and brackets omitted).
Here, the ALJ's rejection of Plaintiff's testimony regarding his cognitive impairments was improper for at least three reasons. First, a lack of objective evidence could not have formed the sole basis for the ALJ's rejection of Plaintiff's testimony. See Rollins, 261 F.3d at 857. Second, although Plaintiff's mental status exam findings were largely normal, courts regularly reverse credibility determinations based on substantially similar records. See Ghanim, 763 F.3d at 1164 (rejecting ALJ's reliance on the claimant's “good eye contact, organized and logical thought content, and focused attention” because “[t]hese observations of cognitive functioning during therapy sessions [did] not contradict [the claimant's] reported symptoms of depression and social anxiety”); see also Claire G. v. Berryhill, No. 3:18-cv-00492-HZ, 2019 WL 2287733, at *10 (D. Or. May 28, 2019) (“Simply pointing to the instances of noted normal or bright mood do not, without a more thorough discussion, show a contradiction between Plaintiff's testimony and the medical record.”). Third, Plaintiff's self-reports find ample support in the record, which reveals that his neurocognitive disorder interfered with his ability to process information. See, e.g., Tr. 773 (noting unusually long response times to problem solving on tests); Tr. 782 (recommending “some level of accommodation” in academic and employment contexts).
The ALJ's rejection of Plaintiff's cognitive impairments based on his activities of daily living, fails for the reasons explained in Section I.A. Tr. 21-22.
In sum, although the ALJ supplied clear and convincing reasons for rejecting Plaintiff's subjective symptom testimony relating to his physical and hearing impairments, the ALJ failed to supply legally sufficient reasons relating to his cognitive impairments. The ALJ's evaluation of Plaintiff's subjective symptom testimony should therefore be reversed.
II. Medical Opinions
Plaintiff asserts that the ALJ erred in weighing the medical opinions evidence. Pl.'s Br. 8-10. The ALJ is responsible for resolving conflicts in the medical record, including conflicting doctors' opinions. Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). The law distinguishes between the opinions of three types of physicians: treating physicians, examining physicians, and non-examining physicians. See 20 C.F.R. §§ 404.1527, 416.927. A treating doctor's opinion that is not contradicted by the opinion of another doctor can be rejected only for “clear and convincing” reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). Where a doctor's opinion is contradicted, however, the ALJ must provide “specific, legitimate reasons” for discrediting the opinion. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). An ALJ can meet this burden by “setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Garrison, 759 F.3d at 1012 (quotation omitted).
The Commissioner has issued revised regulations changing this standard for claims filed after March 27, 2017. See 20 C.F.R. § 404.1520c. Plaintiff's claim was filed before March 27, 2017, and therefore is controlled by 20 C.F.R. §§ 404.1527, 416.927.
A. Emil Slatick, Ph.D.
Emil Slatick, Ph.D., conducted a psychiatric evaluation of Plaintiff in December 2015, which included a clinical interview, mental status examination, as well as a review of available medical records. Tr. 773-82. During Plaintiff's interview, he presented as “casually dressed, adequately groomed, pleasant and cooperative.” Tr. 773.
The doctor found that Plaintiff's response time on a Math Problem Solving subtest was unusually long, that his thinking was generally clear, that his expressive communication skills were adequate, and that his hearing issues affected receptive communication. Tr. 773. Dr. Slatick diagnosed Plaintiff with unspecified neurocognitive disorder and a hearing impairment. Tr. 781.
Dr. Slatick had the following diagnostic impression:
While Gary [ ] possesses the academic skills necessary to achieve his educational goals, the impact of the identified cognitive difficulties are likely to be sufficient to necessitate some level of accommodation in some academic training, and employment environments.Tr. 782.
Dr. Slatick opined that Plaintiff's primary issues were related to “cognitive functioning which [were] of a nature and severity sufficient to exert a negative impact across domains of functioning. Hearing issues [were] also a factor in his current functioning.” Tr. 781. The doctor recommended that Plaintiff “should plan to allow extra time for task completion, ” “might benefit from written rather than verbal instruction, ” and “should position himself near the source of training and/or instruction.” Id.
The ALJ assigned Dr. Slatick's opinion little weight. Tr. 23. The ALJ found that Dr. Slatick's opinion was “equivocal” and “framed as recommendations largely rather than identifying functional limits.” Id. The ALJ cited Dr. Slatick's use of “could be helpful” and “might benefit” as examples of the equivocal nature or Dr. Slatick's opinion. Id. This was a clear-and-convincing reason to discount Dr. Slatick's opinion. See, e.g., Khal v. Colvin, No. 3:14-cv-01361-AA, 2015 WL 5092586, at *7 (D. Or. Aug. 27, 2015) (“An ALJ is not required to incorporate limitations phrased equivocally into the RFC.”), aff'd sub nom., 690 Fed.Appx. 499 (9th Cir. 2017); Glosenger v. Comm'r of Soc. Sec. Admin., No. 3:12-cv-01774, 2014 WL 1513995, *6 (D. Or. Apr. 16, 2014) (affirming the ALJ's rejection of functional restrictions assessed by a doctor who used “equivocal language (‘might do better' and ‘would also likely require')”); Fern v. Colvin, 6:12-cv-00176-KI, 2013 WL 1326605, at *7 (D. Or. Mar. 28, 2013) (“Plaintiff would have the ALJ read Dr. Northway's opinion to mean Fern ‘would have' difficulty maintaining sustained attention, but Dr. Northway's opinion was more equivocal than that, using the word ‘might.'”).
B. Paul Stolzfus, Psy.D
Paul Stolzfus, Psy.D., began treating Plaintiff in October 2010. Tr. 751. In July 2013, he conducted a psychiatric evaluation of Plaintiff, which included a clinical interview and mental status examination. Tr. 751-752. During Plaintiff's interview, he presented with “average visual/spatial skills and struggle[d] with social communication skills.” Tr. 751.
Dr. Stolzfus diagnosed Plaintiff with “Asperger's Disorder, which, under the DSM-V Diagnostic System, is part of the Autism Spectrum Disorder.” Tr. 751. The doctor had the following diagnostic impression:
Due to the characteristics of Asperger's Disorder, [Plaintiff] is also expected to experience considerable difficulty in social understanding and communication. He is expected to be frustrated when he does not understand what is expected of him, or when his social environment exceeds his ability to make sense of it.Tr. 752. In terms of functional limitations, Dr. Stolzfus opined that “with appropriate accommodations, ” Plaintiff was expected to perform very well at entry level and higher complexity jobs. Id. “[G]iven [Plaintiffs] history and expertise, ” the doctor recommended a job coach “several hours, several times a week for up to 6 months.” Tr. 755.
The ALJ assigned partial weight Dr. Stolzfus's opinion that Plaintiff needed routine and structure in the workplace and his issues relating to social interactions. Tr. 23. However, the ALJ rejected the remainder of the opinions on the basis that they “conflicted] with the residual functional capacity because they [were] not supported by the medical record of evidence.” Tr. 23.
The Ninth Circuit has rejected similar boilerplate language that discounted testimony simply because it conflicted with an RFC formulation:
Not only does the ALJ err by discrediting symptom testimony to the extent it is inconsistent with an RFC, but the ALJ's analysis is also illogical. Because the claimant's symptom testimony must be taken into account when the ALJ assesses the claimant's RFC, it cannot be discredited because it is inconsistent with that RFC. By discrediting a claimant's “statements concerning the intensity, persistence and limiting effects of [the claimant's] symptoms . . .to the extent they are inconsistent with the” RFC, the ALJ puts the cart before the horse.Laborin v. Berryhill, 867 F.3d 1151, 1154 (9th Cir. 2017) (bracketing in original). That same reasoning applies with equal force to the evaluation of medical opinion evidence, which the regulations similarly require an ALJ to assess. See 20 C.F.R §§ 404.1527(c), 416.927(c) (“Regardless of its source, we will evaluate every medical opinion we receive.”).
To the extent the ALJ discounted the opinion because it conflicted with the medical evidence generally, that rationale fails for a lack of specificity. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884 n.2 (9th Cir. 2006) (noting that without a “reference to the record” a reviewing court is left to speculate as to the ALJ's reasoning). Critically, the ALJ's decision failed to cite to any portion of the medical record in rejecting the doctor's opinion other than the doctor's own report. See Tr. 23. As the Ninth Circuit has explained, to meet the specific and legitimate standard required to reject a medical opinion, an ALJ “must do more than offer [their] conclusions. [They] must set forth [their] own interpretations and explain why they, rather than the doctors', are correct.” Reddick, 157 F.3d at 725 (citation omitted); see also Beckett v. Comm'r, Soc. Sec. Admin., No. 3:09-cv-01052-JO, 2011 WL 4006644, at *2-3 (D. Or. Sept. 6, 2011) (“The Ninth Circuit repeatedly has explained that conclusory reasons will not justify an ALJ's rejection of a medical opinion[.]”) (citation and quotation marks omitted). The ALJ failed to do so here.
Finally, the Commissioner's attempt to supply reasoning on behalf of the ALJ is an impermissible post hoc rationalization upon which this Court may not affirm. See Bray v., 554 F.3d at 1225 (“Long-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and factual findings offered by the ALJ-not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.”).
In sum, the ALJ supplied specific and legitimate reasons for rejecting the opinion of Dr. Slatick. However, the ALJ failed to supply legally sufficient reasons for rejecting the opinion of Dr. Stolzfus. The ALJ's weighing of the medical opinion evidence should therefore be reversed.
III. Lay Witness Testimony
Plaintiff assigns error to the ALJ's evaluation of the lay witness statements. Pl.'s Br. 10-13. Lay witness testimony regarding the severity of a claimant's symptoms or how an impairment affects a claimant's ability to work is competent evidence that an ALJ must take into account. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). To reject such testimony, an ALJ must provide “reasons that are germane to each witness.” Rounds v. Comm'r, 807 F.3d 996, 1007 (9th Cir. 2015) (quoting Molina, 674 F.3d at 1114 (remaining citation omitted)). Further, the reasons provided must also be “specific.” Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1234 (9th Cir. 2011) (citing Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009)). However, where the ALJ has provided clear and convincing reasons for rejecting the claimant's symptom testimony, and the lay witness has not described limitations beyond those alleged by the claimant, an ALJ's failure to provide germane reasons for rejecting lay testimony can be harmless. Molina, 674 F.3d at 1121-22.
A. Cheryl Y.
Cheryl Y. completed a “Work Activity Questionnaire” on behalf of Plaintiff in her role as Human Resources Director of Marion-Polk Food Share. See Tr. 695-98. In the report she explained that Plaintiff did not complete all the usual duties of his position; he needed special assistance; he did not report to work as scheduled; he did not complete his work duties on time; he needed several workplace accommodations; he was only 20% as productive as other employees; and he was frequently absent from work. Id.
The ALJ assigned little weight to the opinion of Cheryl Y. and supplied at least one legally sufficient for its rejection: the limitations described were inconsistent with the positive grade Plaintiff received in his occupational skills training. Tr. 25. Specifically, Plaintiff received 439 points out of a possible 500 for attendance; 227 points out of a possible 250 for work habits and attitudes; and 229 points out of a possible 250 for learning objectives, totaling 894 points out of a possible 1, 000 and receiving a “B” letter grade. Tr. 454. This was a specific and germane reason to discount the report.
B. Mark N.
Mark N. served as Plaintiff's occupational skills training coordinator in the position at Marion-Polk Food Share and completed Plaintiff's end of term evaluation form. Tr. 454. The evaluation form identified the following issues in Plaintiff's performance:
Health and stress issues have resulted in some missed time. Also, Gary is very slow to acquire new skills and develop confidence in his own abilities and seeks constant reassurance, to the point that Mattie is hesitant to leave him working alone while she takes lunch out of concern that he will encounter a problem and become frustrated and reactive. It appears that, although he did gain skills and experience, he has not become independently functional in this workplace.Id. The form also noted that “[s]ite trainers Cheryl Y[.] and Mattie J[.] gave Gary good scores for technical aspects of the job but have doubts about his overall employability.” Id.
The ALJ assigned some weight to the opinion of Mark N. because “the opinions and statements [were] generally consistent with the record as a whole.”
Plaintiff asserts that the opinion “expressly establishes unemployability” and that the ALJ “gave no reason for rejecting [Mark N.'s] observation that Plaintiff missed time from work, was ‘very slow to acquire new skills', that Plaintiff seeks ‘constant reassurance', that his colleague [was] not comfortable ‘to leave [Plaintiff] working alone' and that Plaintiff ‘[was] not functional in this workplace.'” Pl.'s Br. 13.
The Court disagrees. “The ALJ is responsible for. . . for resolving ambiguities, ” Garrison, 759 F.3d at 1009, and for translating opinions contained in the record into concrete functional limitations, see Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). Although Plaintiff offers his preferred reading of Mark N.'s opinion, it was the ALJ's responsibility to translate the opinion into functional limitations that could be incorporated into the RFC, which the ALJ did by limiting Plaintiff to performing simple, routine, and repetitive tasks; simple work-related decisions; occasional public interaction, and occasional supervisor and coworker interaction; and only occasional changes in a routine work setting. Tr. 19; see also Stubbs-Danielson, 539 F.3d at 1174 (“The ALJ translated [the claimant's] condition, including the pace and mental limitations, into the only concrete restrictions available to him-[the doctor's] recommended restriction to ‘simple tasks.'”).
Further, to the extent the ALJ rejected specific portions of the opinion by not including them into the RFC, the ALJ also supplied a specific and germane reason for rejecting the more extreme aspects of the opinion: they were inconsistent with the “B” grade Mark N. assigned to Plaintiff in the occupational skills training. Tr. 25. Finally, regarding the opinion's purported comment on the ultimate issue of employability, that issue is reserved to the Commissioner. 20 C.F.R. §§ 404.1527(d), 416.927(d). As such, the ALJ's weighing of Mark N.'s opinion is supported by substantial evidence. Burch, 400 F.3d at 679.
C. Alisa M.
Plaintiff's partner, Alisa M., submitted a third-party function report in support of Plaintiff's claim. Tr. 239-48. In the report, Alisa M. explained how Plaintiff's impairments limited his ability to work:
[Plaintiff's impairments] overtake his ability to focus & concentrate. He can't hear well, & gets drowsy to the point he can't fight of[f] sleep. Though determined, he has to work long & hard at anything he tries to learn and/or do. He has trouble with perceiving what he can't see [for example] easy open “Ziplock” bags are not a problem but he cannot figure out the ones that have the clear, even top that one has to find the opening & separate it.Tr. 240.
The ALJ assigned the opinion little weight and offered four reasons in support of rejecting the opinion: (1) Plaintiff's activities were inconsistent with the severity of her opinion; (2) her opinion was vague and did not contain specific vocational limitations; (3) the opinion was based on Plaintiffs subjective complaints rather than on objective medical evidence; and (4) the medical record as a whole did not support the severity of her opinion. Tr. 25-26.
The ALJ's rationales based on Plaintiffs activities, vagueness, and the medical record as whole fail on specificity grounds as the ALJ did identify any basis in the record for the assertions. See Taylor, 659 F.3d at 1234; see also Robbins, 466 F.3d at 884 n.2. The lack of functional limitations rationale fails because it contravenes the Commissioner's own regulations and established Ninth Circuit caselaw, which make clear that lay individuals may supply competent evidence that an ALJ must consider. See 20 C.F.R. §§ 404.1513(d), 416.913(d) (providing that lay witness testimony may be introduced “to show the severity of [the claimant's] impairment(s) and how it affects [their] ability to work”) (effective September 3, 2013 to March 26, 2017, see supra n.5); Dodrill, 12 F.3d at 918-19 (“[F]riends and family members in a position to observe a claimant's symptoms and daily activities are competent to testify as to her condition.”). Finally, given the Court's conclusion that the ALJ failed to supply clear and convincing reasons for rejecting Plaintiffs subjective symptom testimony, the fact that Alisa M. relied on Plaintiffs subjective reports was not a germane reason to reject the opinion. As such, the ALJ failed to supply a legally sufficient reason for discounting Alisa M.'s lay witness statement.
In sum, the ALJ properly weighed the lay witness statement from Cheryl Y. and Mark N. However, the ALJ failed to supply a germane reason for rejecting the opinion of Plaintiff s partner, Alisa M. The ALJ's assessment of the lay witness testimony should therefore be reversed.
IV. Remand
A reviewing court has discretion to remand an action for further proceedings or for a finding of disability and an award of benefits. See, e.g., Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985). Whether an action is remanded for an award of benefits or for further proceedings depends on the likely utility of additional proceedings. Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000). In determining whether an award of benefits is warranted, the court conducts the “three-part credit-as-true” analysis. Garrison, 759 F.3d at 1020. Under this analysis the court considers whether: (1) the ALJ has failed to provide legally sufficient reasons for rejecting evidence; (2) the record has been fully developed and further proceedings would serve no useful purpose; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. See Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015). Even if all of the requisites are met, however, the court may still remand for further proceedings “when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled[.]” Id. at 1021. “Serious doubt” can arise when there are “inconsistencies between the claimant's testimony and the medical evidence, ” or if the Commissioner “has pointed to evidence in the record the ALJ overlooked and explained how that evidence casts serious doubt” on whether the claimant is disabled under the Act. Dominguez, 808 F.3d at 407 (citing Burrell, 775 F.3d at 1141 (internal quotation marks omitted)).
Here, other than Plaintiffs conclusory assertion that the “improperly rejected evidence should be credited as true and on that basis remand for an award of benefits is” appropriate, Plaintiff does not persuasively argue why the Court should credit the erroneously rejected evidence as true. As such, the Court should find that remanding for further proceedings is the appropriate remedy.
This case should be remanded for further administrative proceedings to: (1) reevaluate Plaintiff's subjective symptom and the lay testimony of Alicia M.; (2) conduct a de novo review of the medical opinion evidence; and (3) conduct any further necessary proceedings.
RECOMMENDATION
For the reasons discussed above, the ALJ's decision is not supported by substantial evidence. Accordingly, the Commissioner's decision should be REVERSED and this case should be REMANDED pursuant to sentence four of 42 U.S.C. §405(g) for further proceedings consistent with this Findings and Recommendation.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).