Opinion
CV-23-00052-PHX-DLR (MTM)
02-16-2024
Anne Michelle Harris, Plaintiff, v. Commissioner of the Social Security Administration, Defendant.
HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
HONORABLE MICHAEL T. MORRISSEY UNITED STATES MAGISTRATE JUDGE
Plaintiff Anne Michelle Harris (“Plaintiff”) seeks review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security (“the Commissioner” or “Defendant”), denying her claims for Disability Insurance Benefits and Supplemental Security Income under sections 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. Because the decision of the Administrative Law Judge (“ALJ”) is not supported by substantial evidence and contains legal error, the Court will recommend that the Commissioner's decision be reversed and remanded for further administrative proceedings.
BACKGROUND
Plaintiff was born on September 21, 1974. She has a college education, and she has past relevant work as a chief programmer, receptionist, and dispatching clerk. (Administrative Record (“AR”) at 58-59, 41-42.)
Plaintiff filed applications for Disability Insurance Benefits and Supplemental Security Income under Titles II and XVI of the Social Security Act on July 25, 2018, alleging disability beginning on June 1, 2017. (AR at 27, 298, 324.) The Commissioner denied Plaintiff's claims at the initial and reconsideration phases of administrative review. (AR at 82-83, 122-123.) Plaintiff sought further review by an ALJ, who conducted a hearing on December 22, 2021. (AR at 51-81.) In a January 12, 2022 decision, the ALJ found Plaintiff not disabled within the meaning of the Social Security Act. (AR at 27-43.) The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (AR at 1-6.) Plaintiff then filed this action pursuant to 42 U.S.C. § 405(g).
DISCUSSION
I. Legal Standard
The district court reviews only those issues raised by the party challenging the ALJ's decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). Only issues that are argued specifically and distinctly in a party's opening brief are reviewed. Indep. Towers of Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003). Moreover, “when claimants are represented by counsel, they must raise all issues and evidence at their administrative hearings in order to preserve them on appeal.” Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). Failure to do so will only be excused when necessary to avoid a manifest injustice. Id.
A court may set aside the Commissioner's disability determination only if it is not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a preponderance. Id. In determining whether substantial evidence supports a decision, the court must consider the record as a whole and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. Generally, when the evidence is susceptible to more than one rational interpretation, courts must uphold the ALJ's findings if they are supported by inferences reasonably drawn from the record. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). “Overall, the standard of review is ‘highly deferential.'” Rounds v. Comm'r Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015).
Harmless error principles apply in the Social Security Act context. Molina, 674 F.3d at 1115. An error is harmless if there remains substantial evidence supporting the ALJ's decision, and the error does not affect the ultimate determination. Id. The claimant usually bears the burden of showing that an error is harmful. Id. at 1111.
II. Five-Step Sequential Evaluation
To determine whether a claimant is disabled for purposes of the Social Security Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
At the first step, the ALJ determines whether the claimant is engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled, and the inquiry ends. Id. At step two, the ALJ determines whether the claimant has a severe medically determinable physical or mental impairment. § 404.1520(a)(4)(ii). If not, the claimant is not disabled, and the inquiry ends. Id. At step three, the ALJ considers whether the claimant's impairment or combination of impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the claimant's residual functional capacity and determines whether the claimant is still capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant is not disabled, and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, where he determines whether the claimant can perform any other work based on the claimant's residual functional capacity, age, education, and work experience. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled. Id.
At step one, the ALJ found that Plaintiff met the insured status requirements of the Social Security Act through December 31, 2023. (AR at 29.) The ALJ determined that Plaintiff has not engaged in substantial gainful activity since June 1, 2017 - the alleged onset date. (AR at 29-30.) At step two, the ALJ found that Plaintiff had the following severe impairments: obesity, degenerative disc disease of the cervical and lumbar spine, and migraine headaches. (AR at 30-34.) At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR at 34.)
At step four, the ALJ found that Plaintiff retained the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she can lift and carry 20 pounds occasionally and 10 pounds frequently. She can sit for 6 hours, stand for 6 hours, and walk for 6 hours in an 8-hour workday. The ALJ found that Plaintiff can occasionally reach overhead bilaterally, and she can occasionally climb, balance, stoop, kneel, crouch, and crawl. She should avoid concentrated exposure to vibrations. (AR at 3541.) The ALJ further found that Plaintiff was able to perform her past relevant work. (AR at 41-43.) Specifically, the ALJ found Plaintiff could perform the jobs of chief programmer (DOT 030.167-010, sedentary but performed at the medium level, SVP 8), receptionist (DOT 237.367-038, sedentary but performed at the medium level, SVP 4), and dispatching clerk (DOT 247.387-014, sedentary, SVP 4). (AR at 41-43.)
Accordingly, the ALJ concluded that Plaintiff has not been under a disability, as defined in the Social Security Act, from June 1, 2017, through the date of his decision. (AR at 43.)
III. Analysis
Plaintiff presents three issues for the Court's consideration. First, Plaintiff contends that the ALJ erred in rejecting the opinion of her treating psychologist and nurse practitioner Karen Jamison, Ph.D., F.N.P.-B.C. Second, Plaintiff argues that the ALJ erred in rejecting her symptom testimony in the absence of clear and convincing reasons supported by substantial evidence in the record. Third, Plaintiff argues that the ALJ erred in concluding that her anxiety and post-traumatic stress disorder were not severe impairments, and her cognitive decline and post-concussive syndrome were not medically determinable impairments.
A. Medical Opinion Evidence
Plaintiff first argues that the ALJ erred by rejecting the assessment from Dr. Jamison without providing sufficient explanation supported by substantial evidence, including failing to explain his consideration of the supportability and consistency factors. Plaintiff contends that this error was not harmless as the vocational expert concluded that the assessed limitations from Dr. Jamison would preclude all work.
In 2017, the Commissioner revised the regulations for evaluating medical evidence for all claims filed on or after March 27, 2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844, 5844 (Jan. 18, 2017). Here, Plaintiff's claim was filed after the effective date; therefore, the revised rules apply. Unlike the old regulations, the revised rules do not require an ALJ to defer to the opinions of a treating physician nor assign every medical opinion a specific evidentiary weight. 20 C.F.R. §§ 404.1520c(a), 416.920c(a); see also Lester v. Charter, 81 F.3d 821, 830-31 (9th Cir. 1995) (requiring an ALJ provide “specific and legitimate reasons that are supported by substantial evidence in the record” when rejecting a treating physician's opinion).
The revised rules instead require the ALJ to consider all opinion evidence and determine the persuasiveness of each medical opinion's findings based on factors outlined in the regulations. 20 C.F.R. §§ 404.1520c(a)-(b), 416.920c(a)-(b). The most important factors considered by an ALJ are “consistency” and “supportability.” 20 C.F.R. § 404.1520c(b)(2). Supportability is defined as how “relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical findings.” 20 C.F.R. § 404.1520c(c)(1). Consistency means “the extent to which a medical opinion is ‘consistent . . . with the evidence from other medical sources and nonmedical sources in the claim.'” Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (citing 20 C.F.R. § 404.1520c(c)(2)). The ALJ should also treat opinions as more persuasive if they are more consistent with “other medical sources and nonmedical sources in the claim.” 20 C.F.R. § 404.1520c(c)(2). Lastly, the ALJ can also consider, to a lesser degree, other factors, such as the length and purpose of the treatment relationship, the kinds of examinations performed, and whether the medical source actually examined the claimant. Woods, 32 F.4th at 792.
Recently, the Ninth Circuit held that the revised rules clearly intended to abrogate its precedent requiring ALJs to provide “specific and legitimate reasons” for rejecting a treating physician's opinion. Id. Nevertheless, “[e]ven under the new regulations, an ALJ cannot reject an examining or treating doctor's opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence.” Id. Therefore, an ALJ, “must ‘articulate . . . how persuasive' it finds ‘all of the medical opinions' from each doctor or other source, and ‘explain how it considered the supportability and consistency factors' in reaching these findings.” Id. (citing 20 C.F.R. § 404.1520c(b), (b)(2)) (internal citation omitted).
Plaintiff began treatment with Dr. Jamison in September 2017, following a car accident occurring on June 2, 2017. (AR at 657, 464-471, 473-483.) In July 2018, Dr. Jamison wrote a letter detailing her assessment of Plaintiff's condition since the accident. She stated, in part, that Plaintiff had “incurred an inability to concentrate for a prolonged period and can only perform focused computer work for one (1) hour at a time with a maximum of two (2) hours in an eight (8) hour workday.” (AR at 657.) Plaintiff also had “significant difficulty with word finding, ... headaches [that] are unpredictable and functionally limiting,” and “cervical spine pain with left upper extremity weakness due to degenerative issues from C3-7 with radiculopathy affecting C5 on the left (See 7/6/17 MRI and 8/2/17 EMG).” (AR at 657.)
In August 2018, Dr. Jamison completed a “Medical Assessment of Ability to do Work Related Physical Activities,” a “Pain Functional Capacity (RFC) Questionnaire,” and a “Headache Residual Functional Capacity Questionnaire” as a result of Plaintiff's “Post concussion syndrome; [history] of peritoneal surgery [and] mesh[,] cervical disc disease; headaches.” (AR at 572-578.) Dr. Jamison assessed that Plaintiff could stand and/or walk for a total of less than two hours in an eight-hour workday, and she could sit for a total of four hours in an eight-hour workday. (AR at 572.) Dr. Jamison assessed that Plaintiff had “moderately severe” pain, defined as “Pain [that] seriously affects ability to function.” (AR at 575.) Dr. Jamison found that Plaintiff's pain was “frequently” sufficiently severe to interfere with attention and concentration, and she opined that Plaintiff could not work while she had migraine headaches. (AR at 575, 578.)
Having considered these assessments, the ALJ found Dr. Jamison's opinion not persuasive, stating that Plaintiff's limitations were “not proportional to the claimant's presentation on examination.” (AR at 39.) The ALJ stated that despite “chronic near daily headaches, her providers have not noticed neurological deficits, changes to her alertness or orientation, significant fatigue, or objective signs of pain consistent with the severity of the limitations in the opinion.” (AR at 39, citing 580, 583, 586, 592, 595, 607, 610, 614, 617, 627, 649, 661, 704, 864, 908.)
The Court finds that the ALJ failed to adhere to the requirements for evaluating medical opinions. Although it may have been the ALJ's intent to refute Dr. Jamison's assessment based on inconsistencies between the assessment, Dr. Jamison's own treating notes, and the larger evidentiary record, the ALJ failed to satisfy the regulation's requirement that the ALJ “explain how we considered the supportability and consistency factors for a medical source's medical opinions ... in your determination or decision.” 20 C.F.R. § 404.1520c(b)(2). The ALJ makes a conclusory reference to no noticeable neurological deficits, changes to Plaintiff's alertness or orientation, fatigue, or objective signs of pain, and leaves the Court to sift through a string cite of examination findings to assess which evidence specifically relates to the supportability and consistency factors as set forth in the Commissioner's regulations.
While the Ninth Circuit held that “an ALJ's decision, including the decision to discredit any medical opinion, must simply be supported by substantial evidence[,]” Woods, 32 F.4th at 787, the court clarified that “[t]he agency must articulate how persuasive it finds all of the medical opinions from each doctor or other source, and explain how it considered the supportability and consistency factors in reaching these findings[,]” id. at 792 (cleaned up). See Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (“[T]he ALJ must provide sufficient reasoning that allows us to perform our own review, because the grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.”) (internal citations and quotation marks omitted); see also Carrie D. v. Kijakazi, 2022 WL 2901010, at *6 (E.D. Wash. June 6, 2022) (holding the ALJ's general reference to normal clinical findings and the lack of support from the doctor's treatment notes is “an insufficient explanation under Woods ”); Bogner v. Comm'r of Soc. Sec. Admin., 2023 WL 4734120, at *4 (D. Ariz. July 25, 2023) (finding the ALJ did not provide substantial evidence to reject medical opinions when the ALJ failed to discuss how the underlying treatment notes supported or did not support the providers' opinions); Fairbank v. Comm'r of Soc. Sec. Admin., 2023 WL 3534660, at *4 (D. Ariz. May 18, 2023) (finding the ALJ's notations failed to support discrediting a medical opinion when the ALJ failed to explain how they were inconsistent with specific assessed limitations from the medical opinion).
Moreover, the examples cited by the ALJ do not show inconsistencies between Dr. Jamison's assessment, her own treating notes, or the larger evidentiary record. In discounting Dr. Jamison's opinion, the ALJ cited to exhibits showing unremarkable imaging scans, as well as, other examination findings indicating no neurological deficits or changes to her alertness or orientation. While physicians may utilize imaging scans and other objective evidence to “rule out other possible causes of headaches,” SSR 19-4p, 2019 WL 4169635, at *4, such techniques are not to be used to measure the severity of headaches. See, e.g., Barbara P. v. Kijakazi, 2021 WL 4295745, at *9 (E.D. Wash. Sept. 21, 2021) (“Such imaging is used to rule out other medical conditions, not measure the severity of headaches, and using lack of MRI findings as objective evidence to discredit Plaintiff's symptom complaints was an error by the ALJ.”); Ortega v. Chater, 933 F.Supp. 1071, 1075 (S.D. Fla. 1996) (present-day laboratory tests cannot prove the existence of migraine headaches); Wiltz v. Barnhart, 484 F.Supp.2d 524, 532 (W.D. La. 2006) (“Migraine headaches are particularly unsusceptible to diagnostic testing.”); Salomaa v. Honda Long Term Disability Plan, 642 F.3d 666, 670 (9th Cir. 2011) (comparing migraines with chronic fatigue syndrome, noting “there were no physical findings for chronic fatigue syndrome except that the patient looked fatigued, just as there were no physical symptoms for migraine headache except that the patient would appear to be in pain”).
Thus, “in cases involving complaints of disabling pain due to migraine headaches, courts look to other objective medical signs to determine whether the claimant's complaints are consistent with the existence of disabling migraine pain, including whether the claimant's migraines are accompanied by drowsiness, dizziness, nausea, vomiting and blurred vision ....” Wiltz, 484 F.Supp.2d at 532; see also Ortega, 933 F.Supp. at 1075 (same); Melton v. Commissioner of Social Security, 2023 WL 5917413, *2 (N.D. Miss. Sept. 11, 2023) (same); Newman v. Chater, 1997 WL 327091, *5 (D. Kan. 1997) (same). Courts additionally consider whether the claimant has been prescribed medication for migraines, whether the plaintiff is sensitive to light or sound, and whether the claimant has received continuing and regular treatment for migraines. Id.
Here, the record demonstrates that Dr. Jamison has been Plaintiff's primary care provider since September 2017, and she has consistently sought treatment for migraines. (AR at 657.) The record further shows that she was continually prescribed medication for this condition. (Doc. 21 at 3-6.) Additionally, the symptoms associated with Plaintiff's headaches include photophobia, nausea and vomiting, vertigo, mental confusion, inability to concentrate, visual disturbances, and malaise. (AR at 577.)
Accordingly, the Court finds that the ALJ erred in disregarding Dr. Jamison's opinion. The ALJ's decision to reject Dr. Jamison's opinion is not supported by substantial evidence.
B. Plaintiff's Symptom Testimony
Plaintiff argues that the ALJ committed materially harmful error by rejecting Plaintiff's symptom testimony without “specific, clear and convincing reasons supported by substantial evidence” in the record. Plaintiff contends that this error was not harmless as the vocational expert testified that limitations consistent with Plaintiff's reported symptoms would interfere with the ability to perform any sustained work.
In evaluating a claimant's symptom testimony, the ALJ employs a two-step process. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). First, the ALJ considers whether the claimant has presented objective medical evidence of an impairment “which could reasonably be expected to produce the pain or symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal quotation marks omitted)). Second, if the claimant presents such evidence, “the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.” Garrison, 759 F.3d at 1014-15 (citing Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). The Ninth Circuit has expressly held that a claimant “need not show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom.” Smolen, 80 F.3d at 1282 (internal citation omitted).
The clear and convincing standard is the most demanding in Social Security cases. Garrison, 759 F.3d at 1015. An ALJ's “vague allegation” that a claimant's symptom testimony is inconsistent with the medical record does not meet the clear and convincing standard. Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1102-03 (9th Cir. 2014). Similarly, an ALJ cannot satisfy the clear and convincing standard based solely upon “a lack of medical evidence to fully corroborate the alleged severity of pain.” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). Rather, in making credibility determinations, an ALJ may consider a variety of factors in evaluating symptom testimony including, “[the claimant's] reputation for truthfulness, inconsistencies either in [her] testimony or between [her] testimony and [her] conduct, [her] daily activities, [her] work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which [she] complains.” Light v. Soc. Sec. Admin., Comm'r, 119 F.3d 789, 792 (9th Cir. 1997).
Plaintiff testified she could not work because she has poor memory, poor focus, and an inability to multitask. (AR at 64.) She also has migraine headaches at least once a week, and when she has a migraine, she has to stay in bed. (AR at 64.) The headaches last several hours, and the headache medication makes her very tired. (AR at 65.) Plaintiff also testified to having neck pain. (AR at 65.) Plaintiff stated that in a typical day, she has to lie down for a total of two to three hours, “usually more,” to relieve pain. (AR at 73.) She stated that she could only stand/walk for 15 to 20 minutes before she has to sit down and rest. (AR at 68.)
In evaluating her testimony, the ALJ determined that step one was satisfied as “the claimant's medically determinable impairments could reasonably be expected to cause some of the symptoms of the nature alleged by the claimant.” (AR at 35-36.) However, the ALJ rejected Plaintiff's symptom testimony, offering three reasons. First, the ALJ found that Plaintiff “shows resistance to medication management of her pain.” (AR at 37.) Second, the ALJ reasoned that Plaintiff's “neurologist repeatedly notes that the claimant has not sustained neurological residual effects.” (AR at 37.) Third, the ALJ found that Plaintiff's daily activities were inconsistent with her symptom testimony. (AR at 38.)
As to Plaintiff's resistance or non-compliance with treatment recommendations, the Ninth Circuit has recognized that such non-compliance qualifies as a permissible basis for discounting a claimant's symptom testimony. See, e.g., Chaudry v. Astrue, 688 F.3d 661, 672 (9th Cir. 2012) (affirming ALJ's rejection of symptom testimony in part because “Chaudhry repeatedly failed to seek treatment ... or follow prescribed courses of treatment”); Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (“Our case law is clear that if a claimant complains about disabling pain but fails to seek treatment, or fails to follow prescribed treatment, for the pain, an ALJ may use such failure as a basis for finding the complaint unjustified or exaggerated.”).
Here, the ALJ found that while Plaintiff describes headache pain that prevents her from performing any activity during the headache, she demonstrates resistance to medication management of her pain. Specifically, the ALJ found that in August 2017, she rfused to start medications after her accident, (AR at 37, citing 594), and she continued to hold off starting any medications at her October follow-up examination (AR at 37, citing 591). The ALJ found that when Plaintiff did agree to medication management, she resisted taking the medications as prescribed, and in June 2018, her medications had to be restarted because she stopped taking them. (AR at 37, citing 712.) The ALJ stated that for over a year after her accident, she delayed or failed to take her medications for her migraine condition, supporting the argument that her pain was not debilitating enough to warrant consistent treatment. (AR at 37.)
Despite Plaintiff's contention that the ALJ did not point to evidence demonstrating that she was non-compliant with her doctors' recommendations, the record contains clear evidence of non-compliance. Further, to the extent Plaintiff argues that the ALJ failed to inquire as to an explanation for her resistance to medication, suggesting it was the ALJ's burden to determine why Plaintiff was non-compliant, it was Plaintiff's burden to provide an explanation for her non-compliance, which she failed to do. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (“Another such form of evidence is an unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment. While there are any number of good reasons for not doing so, a claimant's failure to assert one, or a finding by the ALJ that the proffered reason is not believable, can cast doubt on the sincerity of the claimant's pain testimony.”) (citations omitted).
Because the ALJ identified a specific, clear and convincing reason for discounting Plaintiff's symptom testimony and that reason is supported by substantial evidence, it is unnecessary to evaluate the sufficiency of the ALJ's other proffered reasons for discounting Plaintiff's testimony. Molina, 674 F.3d at 1115 (“[S]everal of our cases have held that an ALJ's error was harmless where the ALJ provided one or more invalid reasons for disbelieving a claimant's testimony, but also provided valid reasons that were supported by the record.”). Nevertheless, the Court will also address the ALJ's finding that Plaintiff's activities of daily living are not consistent with the severity of her allegations.
Where the “record reflects that the claimant has normal activities of daily living including cooking [and] house cleaning . . . [this] suggest[s] that the claimant may still be capable of performing the basic demands of competitive, remunerative, unskilled work on a sustained basis.” Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008). While a claimant is not required to be completely incapacitated to be found disabled, an ALJ may consider the Plaintiff's daily activities to determine whether they are inconsistent with the alleged symptoms. See 20 C.F.R. § 404.1529(c)(3)(i) (permitting consideration of a claimant's daily activities when weighing symptoms).
Here, the ALJ found that Plaintiff was capable of performing a wide range of tasks that are not consistent with the severity of her allegations. The ALJ stated that Plaintiff continues to perform household chores, like folding laundry, cooking meals, and going to the grocery store. (AR at 38, citing 386-387, 395-396, 416-417.) The ALJ found that Plaintiff participates in a variety of leisure activities that are sedentary in nature but require extended focus. For instance, the ALJ found that Plaintiff does puzzles, surfs social media, watches television, goes to the movies, and crochets. (AR at 38, citing 385, 388, 397, 415, 418, 579.) The ALJ also found that Plaintiff continues to perform increased leisure activities, including vacationing in Florida and going on a cruise. (AR at 38, citing 566, 660, 738.)
Plaintiff argues this is an insufficient reason to reject her symptom testimony as the ALJ did not show that a substantial part of a typical day was spent engaged in activities inconsistent with her testimony or consistent with the ability to work. However, even if the evidence is not clear on how long or often Plaintiff performed her daily activities, as long as the ALJ's determination is reasonable, it is not the Court's role to second-guess it. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (holding that, even when record was equivocal about how long and often plaintiff engaged in daily activities, because ALJ's interpretation was reasonable the court would not second-guess it).
Plaintiff additionally contends that the ALJ erred in “fault[ing] Harris for ‘vacationing in Florida and going on a cruise.'” However, the Ninth Circuit has found an ALJ can reasonably find that a claimant's traveling and vacations can be used to discount her testimony. See, e.g., Romanelli v. Astrue, 267 Fed.Appx. 722, 724 (9th Cir. 2008) (“ALJ reasonably concluded that Ms. Romanelli's claimed limitation of being unable to stand for more than fifteen minutes at a time was inconsistent with her testimony about her physical activities such as traveling around the United Kingdom for two weeks”); Wennet v. Saul, 777 Fed.Appx. 875, 877 (9th Cir. 2018) (discounting symptom testimony where claimant traveled to New York and Italy); Sadeeq v. Colvin, 607 Fed.Appx. 629, 631 (9th Cir. 2015) (“ALJ did not err by concluding that Sadeeq's trip to Mecca for a pilgrimage suggested that the alleged symptoms and limitations may have been overstated.”). And, “[w]here the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
Thus, the Court finds that the ALJ provided a reasonable determination setting forth specific reasons based on substantial evidence in finding that Plaintiff's daily activities were “not consistent with a person unable to perform tasks at the frequency alleged.” Accordingly, the Court finds the ALJ properly relied on “specific, clear and convincing reasons” supported by substantial evidence in rejecting Plaintiff's symptom testimony. See Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014) (“Engaging in daily activities that are incompatible with the severity of symptoms alleged can support an adverse credibility determination.”); Singh v. Commissioner of Social Security Administration, 2020 WL 5757620, at *3 (D. Ariz. Sept. 28, 2020) (finding ALJ did not err in discounting plaintiff's allegations of disabling symptoms and limitations because they were inconsistent with her reported activities).
IV. Remand
If the ALJ's decision is not supported by substantial evidence or suffers from legal error, the Court has discretion to reverse and remand either for an award of benefits or for further administrative proceedings. Smolen, 80 F.3d at 1292; Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). “Remand for further proceedings is appropriate if enhancement of the record would be useful.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). “Conversely, where the record has been developed fully and further administrative proceedings would serve no useful purpose, the district court should remand for an immediate award of benefits.” Id. (citing Smolen, 80 F.3d at 1292).
Generally, after a finding that the administrative record does not support the agency's action, the proper course of action is to remand to the ALJ to further develop the record. Treichler, 775 F.3d at 1099-1100. In rare circumstances, courts may remand for an award of benefits. Id. at 1099. To remand for immediate award of benefits, the Court must find:
(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, 759 F.3d at 1020. “Even if those requirements are met, though, we retain ‘flexibility' in determining the appropriate remedy.” Burrellv. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014) (quoting Garrison, 759 F.3d at 1021).
The Court finds that “[r]emand for further administrative proceedings is appropriate [because] enhancement of the record would be useful.” Benecke, 379 F.3d at 593. The ALJ erred by failing to properly address Dr. Jamison's medical opinion. Further, the Court has determined that the ALJ properly addressed Plaintiff's symptom testimony, specifically finding that Plaintiff's non-compliance with treatment and her daily activities were not consistent with the severity of her allegations. Thus, it is not clear from the record that the ALJ would be required to find Plaintiff disabled if all the evidence were properly evaluated using the correct standards. On remand, the ALJ shall give further consideration to the previously submitted medical evidence and continue the sequential evaluation process to determine whether Plaintiff is in fact disabled. Additionally, the ALJ is required to consider all of Plaintiff's alleged impairments, whether severe or not, in the assessment on remand. SSR 86-8p, 1996 WL 374184, at *5 (“In assessing RFC, the adjudicator must consider limitations imposed by all of an individual's impairments, even those that are not ‘severe.'”).
Because the Court recommends that this matter be remanded for further administrative proceedings, the Court declines to address Plaintiff's other issue on appeal related to the ALJ's step two determination.
Therefore, the Court, in its discretion, finds that a remand for further proceedings is appropriate, to hold a new hearing, reconsider the medical opinion evidence of record, and issue a new decision.
CONCLUSION
Accordingly, IT IS RECOMMENDED that the decision of the Commissioner be REVERSED and this case be REMANDED for further administrative proceedings consistent with this 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 Rules of Appellate Procedure, Fed. R. App. P. 4(a)(1), should not be filed until entry of the District Court's judgment. Pursuant to 28 U.S.C. § 636(b), any party may file and serve written objections within 14 days after being served with a copy of this Report and Recommendation. Pursuant to Rule 7.2(e)(3), Local Rules of Civil Procedure, objections to the Report and Recommendation may not exceed ten (10) pages. If objections are not timely filed, the party's right to de novo review by the District Judge is waived. See U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).