Opinion
No. 2:18-cv-1706-EFB
05-27-2020
ZAK FRANKLIN HAY, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
ORDER
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for a period of disability and Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. The parties have filed cross-motions for summary judgment. ECF Nos. 13 & 19. For the reasons discussed below, plaintiff's motion for summary judgment is granted, the Commissioner's cross-motion for summary judgment is denied, and the matter is remanded for further proceedings consistent with this order.
I. Background
In 2012, plaintiff filed an application for a period of disability and DIB, alleging that he has been disabled since November 7, 2007. Administrative Record ("AR") 266-272. His application was denied initially and upon reconsideration. Id. at 171-174, 178-183. After holding a hearing, administrative law judge Peter F. Belli ("ALJ Belli") issued a decision finding that ///// plaintiff was not disabled under section 216(i) and 223(d) of the Act. Id. at 151-160. The Appeals Council subsequently granted plaintiff's request for review, vacated the ALJ's decision, and remanded the matter to the ALJ for further consideration of plaintiff's claim. Id. at 166-169.
Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. §§ 401 et seq. Supplemental Security Income ("SSI") is paid to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both provisions, disability is defined, in part, as an "inability to engage in any substantial gainful activity" due to "a medically determinable physical or mental impairment." 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R. §§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The following summarizes the sequential evaluation:
Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.
Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.
Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.
Another hearing was held before ALJ Belli, at which plaintiff and a vocational expert testified. Id. at 29-49. ALJ Belli issued a new decision on January 7, 2015, again finding that plaintiff was not disabled under the Act. Id. at 10-22. The Appeals Council subsequently denied plaintiff's request for review, leaving ALJ Belli's January 7, 2015 decision as the final decision of the Commissioner. Id. at 1-4. /////
Plaintiff sought judicial review in this court, and on March 30, 2017, the court remanded the case for further administrative proceedings. Id. at 1509-16. On remand, another administrative hearing was held, this time before administrative law judge Christopher Knowdell (the "ALJ"). Id. at 1421-64. On April 5, 2018, the ALJ issued a decision finding that plaintiff was not disabled under section 216(i) and 223(d) of the Act. Id. at 1387-1412. The ALJ made the following specific findings:
In the first action, plaintiff's motion for summary judgment requested that the case be remanded for immediate payment of benefits. The Commissioner conceded that ALJ Belli committed reversal error in his January 7, 2015 decision, but argued that the case should be remanded for further administrative proceedings, not payment of benefits. See AR 1509-16.
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2016.
2. The claimant engaged in substantial gainful activity during the period from his alleged onset date of November 7, 2007 through May 28, 2010. While there was self-employment income as medical skills teacher from October 2010 through December 2011, the undersigned finds this activity was not substantial nor gainful. Thereafter, through his date last insured of December 31, 2016 the claimant has not engaged in substantial gainful activity (20 CFR 404.1571 et seq.).
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3. Through the date last insured, the claimant had the following severe impairments: residuals status post traumatic brain injury (11/2007); migraines; left arm/hand neuropathy; residuals, including acute osteomyelitis left ankle and foot, post multiple surgeries; chronic pain due to trauma; degenerative disk disease of the lumbar spine status post compression and transverse process fractures; hearing loss; PTSD; major depressive disorder; anxiety disorder (20 CFR 404.1520(c)).
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4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
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5. After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform light/sedentary work as defined in 20 CFR 404.1567(b) in that he can lift and carry twenty pounds occasionally and ten pounds frequently, sit for six hours of an eight hour day, stand and walk for two hours of an eight hour day, except he can only occasionally perform left foot controls, and can do so frequently on the right; cannot climb ladders,
ropes and scaffolds, kneel crouch or crawl; can occasionally climb stairs/ramps, balance and stoop; and cannot work about [sic] hazards (dangerous machinery, unprotected heights etc.). He can sustain no concentrated exposure to noise above a moderate (office) level. He is capable of simply routine tasks and occasionally detailed tasks. He can occasionally interact with the public; can frequently interact with coworkers and supervisors; and can occasionally adjust to workplace changes.
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6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
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7. The claimant was born [in] 1974 and was 42 years old, which is defined as a younger individual age 18-49, on the date last insured (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that exist in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569(a)).
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Id. at 1389-1412. ///// ///// ///// ///// ///// /////
11. The claimant was not under a disability, as defined in the Social Security Act, at any time from November 7, 2007, the alleged onset date, through December 31, 2016, the date last insured (20 CFR 404.1520(g)).
Plaintiff did not file written exceptions to the ALJ's decision, and the Appeals Council did not exercise its discretion to assume jurisdiction. Accordingly, the ALJ's April 10, 2018 decision is the final decision of the Commissioner. 20 C.F.R. § 404.984(a).
Once an ALJ issues a decision after remand from the district court, the plaintiff has 30 days to file exceptions with the Appeals Council, requesting the Appeals Council review the ALJ's decision. 20 C.F.R. § 404.984(b). Even where the plaintiff declines to file exceptions, the Appeals Council may, within 60 days of the decision, sua sponte, assume jurisdiction of the case. 20 C.F.R. § 416.1484(b). "If no exceptions are filed and the Appeals Council does not assume jurisdiction of [the] case, the decision of the administrative law judge becomes the final decision of the Commissioner after remand." 20 C.F.R. § 416.1484(d).
II. Legal Standards
The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).
The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). "'It means such evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).
"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "Where 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). ///// ///// /////
III. Analysis
Plaintiff argues that the ALJ committed five principal errors. First, he argues that the ALJ erred in finding plaintiff performed substantial gainful activity from November 7, 2007 through May 28, 2010. Second, plaintiff argues that the ALJ erred by failing to find that his attention deficit disorder and knee pain were severe impairments at step-two. Third, plaintiff claims the ALJ improperly weighed the medical opinion evidence. Fourth, he contends the ALJ failed to provide a legally sufficient reason for disregarding the disability rating from the Veterans Affairs. Fifth, plaintiff contends the ALJ improperly rejected his subjective complaints absent clear and convincing reasons. ECF No. 13 at 21-38. For the reasons explained below, the court finds plaintiff's first and fifth arguments persuasive.
A. Step-One
Plaintiff argues that the ALJ erred at step-one of the sequential evaluation by finding that he engaged in substantial gainful activity from November 7, 2007 through May 28, 2010. More specifically, he contends that the ALJ failed to properly evaluate his work activity during this period under the requirements of Social Security Ruling ("SSR") 84-24. Id. at 21-23.
As the threshold matter, the parties dispute whether any error in evaluating plaintiff's military work activity—which occurred prior to plaintiff's medical retirement in May 2010—was, at most, harmless. The Commissioner notes that even if plaintiff was disabled, he could only receive benefits for the 12 months prior to the date he filed his application. ECF No. 19 at 7; see 20 C.F.R. § 404.621(a) (a disabled individual "may receive benefits for up to 12 months immediately before the month in which [the DIB] application is filed."). The Commissioner contends that since plaintiff did not file his application until April 2012, any error in evaluating plaintiff's work prior to May 2010 was, at most, harmless. ECF No. 19 at 7. Plaintiff counters that the error was not harmless because the ALJ's decision reflects a de facto reopening of a prior DIB application he filed in February 2008. ECF No. 13 at 10 n.2; ECF No. 22 at 5. He further notes that each of the three pre-hearing briefs he submitted requested his prior application be reopened. ECF No. 13 at 10 n.2; see AR 390 (requesting prior application be reopened), 401 (same), 1712 (same).
In Lewis v. Apfel, the U.S. Court of Appeals for the Ninth Circuit held that when an ALJ is aware of the denial of a prior application, accepts without comment an alleged onset date falling within the previously adjudicated period, and then considers evidence of disability related to that period, the ALJ's actions are to be treated as a de facto reopening of the prior application. 236 F.3d 503, 510 (9th Cir. 2001); see also Lester v. Charter, 81 F.3d 821, 824 n.3 (9th Cir. 1996) ("There is an exception to the general rule that courts may not review the Commissioner's decision not to reopen, where the Commissioner considers 'on the merits' the issue of the claimant's disability during the already adjudicated period.").
Here, the ALJ's decision acknowledged plaintiff's prior application was denied at the initial level in May 2008 due to insufficient evidence. AR 1390. His decision, however, did not squarely address plaintiff's requests to reopen that application. The ALJ did find that "based on the present application filing date, April 23, 2012, [plaintiff] cannot be awarded any disability for this period (November 2007 through May 28, 2010) anyway." Id. Although this statement seems to imply a denial of plaintiff's request, the ALJ did not specifically state that he was denying the request.
Regardless, the ALJ specifically evaluated evidence from the previously adjudicated period. For instance, the ALJ considered plaintiff's earning records from 2007 through 2011, and specifically found that plaintiff had engaged in substantial gainful activity from November 2007 through May 2010, but not thereafter. AR 1389-90. More significantly, the ALJ ultimately concluded that plaintiff was not disabled "at any time from November 7, 2007, the alleged onset date, through" the date last insured. Id. at 1412. Thus, the ALJ did in fact considered the merits of plaintiff's claim that he was disabled as of November 7, 2007, which included a period already adjudicated by the denial of the February 2008 application. Accordingly, the ALJ de facto reopened plaintiff's 2008 application. Based on that application, a favorable decision would entitle plaintiff to benefits as of November 7, 2007, the alleged disability onset date.
The court also agrees with plaintiff that the ALJ failed to apply the properly legal standards in finding that plaintiff's military work activity constituted substantial gainful activity. ///// Substantial gainful activity is "work activity that involves doing significant physical or mental activities" on a full or part-time basis, and that is the "kind of work usually done for pay or profit, whether or not a profit is realized." 20 C.F.R. §§ 404.1572 (a), (b). Generally, the earnings received for work activity are the primary consideration in assessing whether work activity was substantial and gainful. 20 C.F.R. § 404.1574; see also Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir. 2001) ("Earnings can be presumptive, but not conclusive, sign of whether a job is substantial gainful activity.").
However, earnings from military service do not carry the same weight where the claimant is being treated for a severe impairment. Social Security Ruling ("SSR") 84-24. This is because severely impaired service members "may be on limited duty status and working in a therapy program while receiving full pay." Id. Accordingly, in these type of cases an ALJ is required to compare the claimant's "military work activities with those in civilian occupations and assess the reasonable worth of the work." Id. This requires the ALJ to objectively evaluate the claimant's work activity "and not the service person's duty status, or whether or not a formal therapy program is involved." Id. Nevertheless, evidence that the claimant is on limited duty or participating in a therapy program "necessarily suggests that special conditions may exist." Id.
Here, the ALJ's decision demonstrates a failure to properly evaluate plaintiff's military work activity under the requirements of SSR 84-24, which undoubtably applies to plaintiff's case. Plaintiff enlisted in the United States Army in January 1997. AR 1012. Here, the onset of alleged disability was a traumatic injury. On the date in question plaintiff was serving in Afghanistan and in a Humvee that drove over an IED that exploded. The resulting explosion threw plaintiff forty feet from the vehicle. Plaintiff sustained a traumatic brain injury ("TBI"), multiple fractures in his lumbar spine, and a fractured left navicular bone, among other injuries. Id. at 1367-68. In June 2009, after more than a year of treatment and rehabilitation, plaintiff was placed in a position as a Senior Medical Sergeant—a position he retained until his medical discharge in May 2010. Id. at 340, 1012.
As noted above, the ALJ concluded that plaintiff engaged in substantial gainful activity from the date of his injury from the IED through May 28, 2010. In reaching this finding, the ALJ indicated that plaintiff's Work Activity Report shows he worked light duty from June 2009 until his discharge from the Army. Id. at 1390. In rejecting plaintiff's description of this activity, the ALJ commented that the record did not include "military documentation of any light accommodated duty or wounded warrior type assignment to substantiate" plaintiff's claim. Id.
Curiously, the ALJ also noted that the record did not include treatment records for the period from date of the injury through plaintiff's military discharge. AR 1390. It is not clear why the administrative record does not include medical records from that period. Indeed, more recent treatment records include general descriptions of the significant medical treatment plaintiff underwent after sustaining his combat related injuries. See, e.g., AR 421, 1367-68. In any event, it is not clear how plaintiff's medical records (or absence of records) were weighed by the ALJ in assessing plaintiff's work activity.
The ALJ's reasoning disregards the special considerations required by SSR 84-24 for evaluating work activity of severely impaired military service members. See Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007) (Social Security Rulings are binding on the ALJ, and remand is warranted for failure to comport with a Social Security Ruling). The ALJ provides no explanation for his conclusion that plaintiff engaged in substantial gainful activity from November 2007 through June 2009, the date plaintiff was placed in the position as Senior Medical Sergeant. The ALJ did not find that plaintiff engaged in any work activity prior to commencing that position, and there is nothing in the record indicating that plaintiff worked in any capacity during this period. Instead, plaintiff's medical records reflect he was not engaged in any work activity prior to June 2009. AR 1944 (noting Army gave plaintiff "8 months off because he broke his back and went to rehab for 2 years until Medical board out.").
The ALJ also failed to properly evaluate plaintiff's work activity during the period he was classified as a Senior Medical Sergeant (June 2009 through May 2010). The ALJ was required to determine whether work activity during that period constituted substantial gainful activity under the rubric described in SSR 84-24. The ALJ made no attempt to ascertain the work activities plaintiff performed as a Senior Medical Sergeant. Instead, the ALJ rejected plaintiff's representation that it was a light duty assignment because that description was not substantiated by other evidence. AR 1390. SSR 84-24 specifically states that the "service person is the primary source of information about the activities involved in his or her particular work therapy program." It further provides that if "the service person's description of duties is equivocal or apparently inaccurate, or if it shows activities not readily correlated to jobs in the civilian community, corroborative information is necessary. Military personnel having supervisory and administrative knowledge of the details and status of the limited work should be contacted." SSR 84-24 (emphasis added). Thus, the ALJ was not free to summarily reject plaintiff's description of his work activities due to a lack of corroborating evidence. And to the extent plaintiff's description was inadequate to allow proper evaluation of the work activities, the ALJ was required to further develop the record. SSR 84-24; see also Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (the ALJ's duty to develop the record is triggered "when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence.").
Accordingly, the ALJ erred in finding that plaintiff engaged in substantial gainful activity from November 7, 2007 through May 28, 2010.
In his reply brief, plaintiff argues that under the doctrine of res judicata, the ALJ was precluded from finding he engaged in substantial gainful activity during the relevant period based on ALJ Belli's 2013 or 2015 decisions. ECF No. 22 at 5. In those decisions, ALJ Belli concluded, without explanation, that plaintiff had not engaged in substantial gainful activity at any time since the alleged onset date. AR 13, 153. But neither decision has any preclusive effect since both were vacated. See Haseltine v. Astrue, 2010 WL 2573959, at *3 (N.D. Cal. June 24, 2010) (rejecting argument that an ALJ's prior, vacated decision was barred by res judicata).
B. Plaintiff's Subjective Complaints
Plaintiff also contends that the ALJ erred by failing to provide clear and convincing reasons for rejecting his testimony concerning his migraine headaches. ECF No. 13 at 29-36.
1. Relevant Legal Standards
In evaluating whether subjective complaints are credible, the ALJ should first consider objective medical evidence and then consider other factors. Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc). If there is objective medical evidence of impairment, the ALJ may then consider the nature of the symptoms alleged, including aggravating factors, medication, treatment, and functional restrictions. See id. at 345-347. The ALJ also may consider: (1) the applicant's reputation for truthfulness, prior inconsistent statements or other inconsistent testimony, (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment, and (3) the applicant's daily activities. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). Work records, physician and third-party testimony about nature, severity and effect of symptoms, and inconsistencies between testimony and conduct also may be relevant. Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). "Without affirmative evidence showing that the claimant is malingering, the Commissioner's reasons for rejecting the claimant's testimony must be clear and convincing." Morgan v. Comm'r of Soc. Sec., 169 F.3d 595, 599 (9th Cir. 1999). Finally, while the ALJ should begin by considering the objective medical evidence, he "may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain." Bunnell, 947 F.2d at 345.
2. Discussion
Plaintiff testified that the impairment primarily responsible for his inability to work is his migraine headaches. He reported experiencing frequent migraines, which he treats with Imitrex injections. AR 82-83, 1431. He explained that Imitrex helps shorten the duration and severity of his migraines, but only if administered before any significant onset occurs. Id. at 83. He further testified that approximately one to two times a week, he has a headache that is not relieved by Imitrex. He explained that when this occurs, he takes a hot shower in a dark room and then goes to bed. AR 83, 1437. He further stated that the headaches that are not alleviated by Imitrex last most of the day and preclude him from performing almost all activities. Id. at 83, 321, 1437.
The ALJ provided multiple reasons for rejecting plaintiff's testimony regarding the severity of his migraine headaches, none of which were legally sufficient. First, the ALJ concluded that plaintiff's allegations were inconsistent with the frequency and form of treatment he received. AR 1395. In that regard, the ALJ observed that "[t]here are no emergency room visits for this condition while treatment records from family practitioner Dr. Randall Meredith, providing pain management and medications from March 2012 through October 2017 include only one mention of having migraines." Id. The ALJ also observed that a December 2016 mental health record indicated plaintiff experienced only one severe migraine every month. Id.; see AR 1930.
Although true that plaintiff did not seek treatment for his migraines at an emergency room, Dr. Meredith's treatment records include at least a few references to plaintiff's migraines. See AR 648, 988, 1758.
The ALJ's observations are selective and paint a misleading picture of the record—which spans more than 2100 pages—and invites the inference that plaintiff's complaints of debilitating headaches find little support from the voluminous medical records. The record, however, is replete with treatment notes substantiating plaintiff's complaints of experiencing one to two severe migraine headaches each week. See, e.g., AR 519-20, 1368 (8/6/2010, "He has almost daily headaches some of which are migrainous. Sumatriptan (Imitrex) is effective if he catches the migraine early however 1 to 3 times weekly he wakes with a migraine and sumatriptan is not effective."); AR 494 (8/26/2010, 1-2 migraine a week); 491 (9/8/2010, headaches less frequent); 421, 487 (9/30/2010, tried various medication for migraines); 466 (8/15/11, wakes up with migraine 1-4 times a month, so sumatriptan is ineffective); 461 (1/24/2012, migraines once a week); 456 (2/2/2012, prescribed Topamax for migraine headaches); 648 (4/12/2012, migraine headaches since November 2007); 739 (10/17/2012, reflecting migraine once a week and that "Sumatriptan is effective if he catches the headache early."); 766 (10/31/2012, "Having migraines about three times weekly with nausea and vomiting."); 826 (11/02/2012, "difficulties with headaches."); 943-44 (12/20/2012, severe migraine headaches two times a week, which last all day); 1143 (1/17/2012, headaches "frequently present and disrupt activities."); 1133 (2/7/2013, "headaches at least 1-3 times a week that often involve photophobia and . . . can last all day. When the headaches are particularly bad, [plaintiff] has vomiting and will turn out the lights and sit in a hot shower in order to relieve some pain."); 1123 (6/26/13, requesting Botox for headaches); 933 (6/27/2013, recent prescription of nortriptyline discontinued because it increased headaches); 1116 (3/13/2014, impairments include migraine headaches); 1758 (6/2/16, "He has migraine headaches and occasionally uses sumatriptan); 1929 (12/13/2016, physician disability questionnaire reflecting plaintiff has had migraines headaches since 2007, and his symptoms include pulsating and throbbing head pain, nausea, vomiting, etc.); 1943 (12/13/2016, frequency of headaches reduced to twice a week since September 2015); 1915 (1/19/2017, migraines two times a week).
Contrary to the ALJ's finding, plaintiff's testimony regarding the severity and frequency of his headaches is strongly corroborated by his medical records. Furthermore, the mere fact that plaintiff did not seek treatment at an emergency room does not undermine his allegations. Baker v. Colvin, 2016 WL 5746356, at *12 (D. Idaho Sept. 29, 2016) (holding that lack of emergency room treatment does not reflect a failure to seek treatment for an impairment).
The ALJ also concluded that plaintiff was not credible because his migraine symptoms were improved or relieved by medication. AR 1395; see Warre v. Comm'r Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) ("Impairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for [disability] benefits."). To support that finding, the ALJ cited to only one treatment record from July 2012. AR 1395. The record states that Imitrex was effective if taken at the first sign of a migraine and that plaintiff's migraines were "less frequent, about once a week now." Id. at 461, 1395. This single treatment note does not establish that plaintiff's migraines are well controlled with medication. As noted above, plaintiff specifically stated that his medication was effective only if he is able to administer it at the first sign of a migraine. But he further explained that he still has one to two headaches a week that are not responsive to medication, including headaches that are already present when he awakes. See, e.g., AR 321. The July 2012 treatment note cited by the ALJ fully supports this testimony. Although not acknowledged by the ALJ, the July 2012 treatment note also states that plaintiff sometimes wakes up with a migraine, rendering Imitrex ineffective. Id. at 461.
But more problematic is the ALJ's failure to discuss the numerous treatment notes that fully support plaintiff's testimony regarding the debilitating effects of these headaches. A single treatment note reflecting some level in improvement does not justify the ALJ's failure to acknowledge the numerous medical records showing ongoing issues with severe migraine headaches. See, e.g., AR 461, 466, 494, 766, 1133. See Scott v. Astrue, 647 F.3d 734, 739-40 ///// (7th Cir. 2011) (holding that an ALJ is not permitted to "'cherry-pick' from . . . mixed results to support a denial of benefits").
Lastly, the ALJ concluded that plaintiff's testimony was inconsistent with his daily activities, which included going to the shooting range, hunting, completing a Bachelor's degree, commencing work on a Master's degree, and studying to become a physician's assistant. Plaintiff's testimony reflects that he went hunting and would go to the shooting range with his brother-in-law. But he specifically stated that he had not been hunting since 2014, and that he only went to the shooting range "once in a while." AR 1433, 1455. Furthermore, there is nothing suggesting that plaintiff engaged in these activities on days he was experiencing a migraine headache. Nor does the ALJ identify any evidence in the record establishing that plaintiff's migraines are triggered by loud noises. Accordingly, plaintiff's ability to occasionally perform these activities does not demonstrate an ability to work on a full-time basis. See Trevizo v. Berryhill, 871 F.3d 664, 682 (9th Cir. 2017) ("[M]any home activities are not easily transferable to what may be the more grueling environment of the workplace, where it might be impossible to periodically rest or take medication."); cf. Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014) ("We have repeatedly warned that ALJs must be especially cautious in concluding that daily activities are inconsistent with testimony about pain, because impairments that would unquestionably preclude work and all the pressures of a workplace environment will often be consistent with doing more than merely resting in bed all day.").
Plaintiff's ability to complete his Bachelor's degree is also not a clear and convincing reasons for rejecting his testimony. Plaintiff started taking college courses prior to 1995. AR 349. At the 2013 hearing, he testified that he already completed the equivalent of three years of college course work. Id. at 57. He further testified that he was enrolled in an online university, and that he only took one course at a time. Id. at 57-58. In October 2014, plaintiff informed his treating physician that he completed his Bachelor's degree. Id. at 1108. Thus, plaintiff's quest to obtain his college degree spanned nearly two decades. Moreover, treatment records reflect that completing his school work on a part-time basis was not an easy feat. See, e.g., id. at 1143 (1/17/2013 treatment record noting plaintiff was "unable to keep up grades in online college class" due to medical impairments, including migraine headaches). The circumstances under which plaintiff completed his degree are not inconsistent with his claims of frequent debilitating headaches. Nor does his ability to complete his degree on a part-time basis over many years suggest an ability to engage in full-time work on a sustained basis. Rather, the record indicates the contrary.
Finally, the ALJ erred in rejecting plaintiff's testimony based on a few treatment notes documenting plaintiff's ambition to pursue further education. AR 1395; see AR 441 (7/3/2013, plaintiff reported he was considering becoming a physician assistant); 1774 (5/28/2015, plaintiff was taking courses and "on his way to getting a career and counseling."); 1771 (7/30/15, plaintiff "is in a masters program."). Although the record shows that plaintiff was enrolled in an academic program sometime before May 2015, the record is devoid of any details reflecting plaintiff's course work. There is nothing suggesting that plaintiff is enrolled in a full-time master's program. Furthermore, plaintiff testified at the February 2018 that he was not currently enrolled in an education program. Id. at 1427. Thus, it appears plaintiff was unsuccessful in his effort to obtain a master's degree.
The ALJ's decision also observed that a September 2016 MRI of plaintiff's brain showed normal findings. To the extent the ALJ relied on the MRI to discount plaintiff's subjective complaints, he erred. As one court has observed:
The cause [of a migraine] is unknown and the pathophysiology is not fully understood.... The mechanism for migraines is not well defined, but several triggers are recognized [, including] insomnia, barometric pressure change, and hunger.... Symptoms usually follow a pattern in each patient.... The patient may have attacks daily or only once every several months. Diagnosis is based on the symptom patterns when there is no evidence of intracranial pathologic changes.... No diagnostic tests are useful, except to exclude other causes. Treatment depends on the frequency of attacks and the presence of comorbid illness. In general, treatment can be classified as prophylactic, abortive, or analgesic.
Accordingly, the ALJ erred by failing to provide clear and convincing reasons for rejecting plaintiff's testimony.
C. Remand for Further Proceedings
Plaintiff argues that the appropriate remedy is remanding the case for immediate payment of benefits. ECF No. 13 at 39-42. He claims that the administrative record is well-developed and that the ALJ should not be afforded another opportunity to correct deficiencies. Id.
"A district court may reverse the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing, but the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation." Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (internal quotes and citations omitted). Where the ALJ improperly rejects evidence establishing disability, the district court may remand the matter for immediate payment of benefits under the credit-as-true- rule. Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). 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). However, even where all three requirements are satisfied, the court retains "flexibility" in determining the appropriate remedy. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014). "Unless the district court concludes that further administrative proceedings would serve no useful purpose, it may not remand with a direction to provide benefits." Dominguez, 808 F.3d at 407.
The court is cognizant that plaintiff's application was filed more than eight years ago. Since that time, two ALJs have issued a total of three adverse decisions, each deficient in some respect. Furthermore, plaintiff's testimony demonstrates that he is disabled under the Act, at least as of May 29, 2010. At the 2018 hearing, the vocational expert testified that "on average missing one day per month is acceptable in the majority of the employers in our workforce." AR 1460. The ALJ subsequently asked the vocational expert if a person missing two days a month would be able to perform any work. Id. at 1462. In response, the vocational expert stated missing two days a month "would be beyond what is tolerated in the majority of employers in the workforce." Id. Considering this evidence in conjunction with plaintiff's testimony, which the court credits as true, the evidence of record establishes plaintiff is disabled. The problem is how to determine the precise date that his eligibility for benefits begins.
The date of plaintiff's traumatic brain injury is clear. However, if plaintiff did in fact engage in substantial gainful activity from November 7, 2007 through May 28, 2010—a doubtful scenario in light of the medical evidence—he would not be entitled to benefits for that period. Unfortunately, the current record does not contain sufficient information regarding plaintiff's prior work activity to permit a proper evaluation under SSR 84-24. Accordingly, the matter must be remanded for further proceedings to allow for proper consideration of whether plaintiff engaged in substantial gainful activity from the alleged onset date through May 28, 2010.
IV. Conclusion
Accordingly, it is hereby ORDERED that:
1. Plaintiff's motion for summary judgment is granted;
2. The Commissioner's cross-motion for summary judgment is denied;
3. The matter is remanded for further proceedings consistent with this order; and
4. The Clerk is directed to enter judgment in plaintiff's favor and close the case. DATED: May 27, 2020.
/s/_________
EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE
Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).
The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.
Groff v. Comm'r Soc. Sec., 2008 WL 4104689, at *8 (N.D.N.Y. Sept. 3, 2008) (quoting The Merck Manual 1376 (17th ed. 1999)). Accordingly, a normal MRI does not suggest plaintiff is exaggerating the severity of his symptoms.