Opinion
CV-21-00550-TUC-JGZ (LCK)
01-17-2023
John M. Keith, Plaintiff, v. Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
HONORABLE LYNNETTE C. KIMMINS UNITED STATES MAGISTRATE JUDGE
Plaintiff John Keith brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision by the Commissioner of Social Security (Commissioner). Plaintiff filed an opening brief, Defendant responded, and Plaintiff replied. (Docs. 18, 19, 20.) Pursuant to the Rules of Practice of the Court, this matter was referred to Magistrate Judge Kimmins for Report and Recommendation. Based on the pleadings and administrative record, the Magistrate Judge recommends the District Court, after its independent review, remand for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
Keith was born in September 1989 and was 28 years of age at the alleged onset date of his disability. (Administrative Record (AR) 306.) He has past relevant experience as an administrative assistant and prep cook/dishwasher. (AR 338.) Keith was in an accident in 2016 and sustained a traumatic brain injury. (AR 54.) He filed an application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) in March 2019. (AR 306, 312.) He alleged disability from June 17, 2018. (Id.) Keith's application was denied upon initial review (AR 110-45) and on reconsideration (AR 150201). A telephonic hearing was held on October 21, 2020. (AR 44-69.) The ALJ then found Keith was not disabled. (AR 23-34.) The Appeals Council granted Keith's request for review of that decision and adopted the ALJ's finding that Keith was not disabled. (AR 4-10, 296-99.)
The ALJ found Keith had severe impairments of traumatic brain injury; left shoulder clavicle malunion and fraying of labrum; seizure disorder; anxiety; and depressive disorder. (AR 26.) The ALJ determined Keith had the Residual Functional Capacity (RFC) to perform light work, but he was limited to frequently climbing ramps and stairs, balancing, stooping, kneeling, and crouching, reaching in all directions but overhead with his left upper extremity, and handling, fingering, and feeling with his left upper extremity; occasionally reaching overhead with his left upper extremity; occasional exposure to extreme environmental heat and cold, loud noise, workplace vibration, workplace hazards, coworkers, and the public; never climbing ladders; and performing simple, routine tasks. (AR 28.) The ALJ concluded at Step Five, based on the testimony of a vocational expert, that Keith could perform the jobs of small products assembler II, electronics worker, and marker. (AR 33.) The Appeals Council adopted most of the ALJ's findings but, at Step Five, concluded Keith could perform only the job of marker. (AR 410.)
STANDARD OF REVIEW
The Commissioner employs a five-step sequential process to evaluate SSI and DIB claims. 20 C.F.R. §§ 404.1520; 416.920; see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To establish disability the claimant bears the burden of showing he (1) is not working; (2) has a severe physical or mental impairment; (3) the impairment meets or equals the requirements of a listed impairment; and (4) claimant's RFC precludes him from performing his past work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At Step Five, the burden shifts to the Commissioner to show that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant “disabled” or “not disabled” at any point in the five-step process, she does not proceed to the next step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
“The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to deny benefits only “when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is so because the ALJ “and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019 (quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner's decision, however, “cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence that supports as well as detracts from the Commissioner's conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).
DISCUSSION
Keith argues the ALJ committed three errors, he: (1) improperly rejected opinion evidence limiting Keith to occasional use of his left arm; (2) improperly rejected opinion evidence regarding Keith's mental limitations; and (3) failed to provide clear and convincing reasons for rejecting Keith's symptom testimony.
OPINION EVIDENCE
The regulations governing cases filed after March 27, 2017, such as this one, provide that an ALJ will consider all medical opinions and, at a minimum, articulate how the ALJ evaluated the opinions' supportability and consistency. 20 C.F.R. §§ 404.1520c(a) & (b), 416.920c(a) & (b). "Even 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." Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022).
Left Arm Limitations
Dr. Matthew
In August 2019, Dr. Matthew opined Keith “can't reach with left arm” and is limited to using his left arm only 60% of the day for fingering and 10% of the day for grasping/turning/twisting. (AR 604.) The ALJ did not find her opinion persuasive, citing inconsistencies but not mentioning supportability. (AR 31.) Defendant asserts that a prior discussion of the medical evidence by the ALJ, relative to Plaintiff's shoulder injury, was sufficient to discern his reasoning on the supportability of Dr. Matthew's opinion. (AR 19 at 8.) The Court disagrees. The ALJ neither mentioned supportability nor referenced his discussion of the objective medical evidence. (AR 31.) This is in contrast to the ALJ's discussion of the state agency findings in the prior paragraph, in which the ALJ did cite to his discussion of the objective medical evidence. (Id.) The Court finds the ALJ erred in failing to explain how he evaluated the supportability of Dr. Matthew's opinion. See Loucks v. Kijakazi, No. 21-1749, 2022 WL 2189293, at *2 (2d Cir. June 17, 2022) ("the ALJ committed procedural error by failing to explain how it considered the supportability and consistency of medical opinions in the record.").
The specific inconsistencies identified by the ALJ had nothing to do with Keith's left arm impairment; they related only to Dr. Matthew's opinion on Keith's ability to walk. (AR 31.) However, the ALJ also relied upon a general finding regarding Dr. Matthew's opinion, that the “degree of restriction overall is [ ] in conflict with [Keith's] reported work or work-like activity.” (Id.) In support of that determination, the ALJ cited numerous records, Exhibits 11D; 1F/1-12; and 18F/21-33, 41-44, 46-49, 68-69, 72-73, 76-77. The cited records contain the following information about Keith's work or worklike activity: he earned money from SEABHS in 2016 and 2017 and earned $2400 from working at Safeway for two months in 2019 (AR 334-35); he quit Safeway because he was treated badly and told to work faster (AR 854); in April 2018, Keith reported doing odd jobs for a family friend to make money and assisting on his family's ranch (AR 509); although he wanted to find employment within the month, he didn't think he could work a "regular" job due to his brain injury (AR 511); in October 2018, he stated that he was looking for work and kept busy by helping friends and at the ranch (AR 503, 507); in June 2019, he was helping a friend fix things (AR 854); in July 2019, he reported liking work, and that he was doing landscape and patio work with a friend (AR 859); in March, May, and July 2020, he reported that he helped people out on their farm without pay to have something to do during the day (AR 881, 885, 889); and, in July 2020, he stated that he would do what he could in the ranch fields before the sun came up (AR 834). With respect to helping on the ranch, Keith testified that he would go about once a month and could separate cattle, but he was not able to do anything physical and his father would not let him be there alone. (AR 60-62.) Although there are many references to Keith performing some form of "work," some of which was paid, the details are limited. The manner in which Keith used his left arm to perform these jobs is unknown, as is the amount of time he spent performing the work. Additionally, the paid work attempts were unsuccessful: Keith ultimately was fired from SEABHS (AR 511, 981, 986); his employment at Safeway was brief (AR 53, 55); his landscaping work ended when trees fell on the left side of his body and caused injury (AR 537, 706); and he reinjured his left arm while doing patio work (AR 683, 686). His other work was erratic and/or voluntary, which indicates he could choose to perform only when he was able to do so. Without further information, there is not substantial evidence to support Keith's work activities as a reason to discount Dr. Matthew's opinions on Keith's left upper extremity limitations.
State Agency Reviewing Physicians
In 2018, a state agency reviewing physician found, in part, that Keith was limited to frequent reaching, handling, and fingering with his left arm. (AR 84.) In 2019, state agency reviewing physicians determined, in part, that Keith was limited to only occasional handling, fingering, and feeling, and reaching (in all directions) with his left upper extremity. (AR 139, 166.) The ALJ found the prior administrative medical findings “generally persuasive” and adopted them, with the exception of the 2019 limitation to occasional use of the left upper extremity. (AR 31.) In making this exception, the ALJ cited recent medical records with relatively normal findings and record references to Keith engaging in work or work-like activity. (Id.) The ALJ also noted that the state agency consultants did not have a significant portion of the medical evidence. (Id.)
The ALJ cited two medical records from April and May 2020, which documented full range of motion and full strength in Keith's left upper extremity. (AR 777, 780.) Those two records are the only ones, since Keith's alleged onset date, that did not document decreased strength in the left upper extremity (shoulder, elbow wrist, and/or hand), and reduced and/or painful range of motion. (AR 534, 542, 701, 704, 707, 737, 745, 754-55, 764, 773, 787, 960, 1047, 1049.) Because there is a period of more than a year when repeated medical records document deficiencies as to Keith's left upper extremity, the later medical records cited by the ALJ are not substantial evidence to reject the prior medical findings of the state agency reviewing doctors. The fact that the reviewing physicians did not have a large portion of the records does not undermine their findings, because the ALJ cited the only two records in which Keith was found to have full strength with good range of motion in his left upper extremity. As discussed above, Keith's attempts at work appear to have been unsuccessful, injury-causing, and/or flexible. There is not substantial evidence to support the ALJ's finding that the 2019 prior administrative medical findings, as to Keith's left arm limitations, were inconsistent and not supported.
The ALJ erred in rejecting the medical opinions regarding Keith's left upper extremity limitations, those of Dr. Matthew's and the state agency reviewing physicians, without substantial evidence to support his decision.
Psychiatric Limitations
In 2018, a state agency consultant found Keith had moderate limitations in understanding, remembering, and carrying out detailed instructions; maintaining attention and concentration for extended periods, working in close proximity to others without being distracted; completing a normal work week without interruptions from psychologically-based symptoms; performing at a consistent pace; and interacting appropriately with the general public. (AR 86-87.) He explained that Keith could understand, remember, and carry out simple one-to-two-step instructions/tasks with no multi-day planning or independent prioritization of tasks and might need occasional redirection until familiar with tasks. (Id.) Further, he would perform best in a non-public setting, with only superficial coworker contact, limited social demands, and no expectation to resolve conflicts or persuade others. (AR 87.) In 2019, the state agency consultants found Keith had the same moderate limitations found in 2018, plus moderate limitations in getting along with coworkers or peers without distracting them or exhibiting behavior extremes, and responding appropriately to changes in the work setting. (AR 169-71.) They went on to conclude that Keith was limited to understanding, carrying out, and remembering simple instructions, low interpersonal contact, and a "slow/self-paced work setting.” (AR 171-72.) The reviewing psychologists further explained that "simple instructions" included, among other things, that Keith could understand, remember, and carry out 1-to-2-step instructions. (Id.)
The ALJ found the state agency mental RFC to be “somewhat persuasive." (AR 32.) The ALJ did not identify which limitations he rejected. A comparison of the RFC and the prior administrative medical findings, however, reveals that the ALJ rejected the 2018 findings that Keith was limited to one-to-two step tasks, no public contact, and only superficial coworker contact. He also rejected the 2019 finding that Keith needed low interpersonal contact and a slow/self-paced work setting. The ALJ stated that he discounted these findings because Keith did not have a significant record of mental health treatment and Keith self-reported typically mild to moderate symptoms. Additionally, the ALJ cited Keith's ability to return to semiskilled work at SEABHS after his accident. The ALJ concluded that Keith's impairments were accommodated by limiting him to simple, routine tasks with occasional contact with the public and coworkers. (AR 32.)
The Ninth Circuit has indicated that a restriction to one-to-two-step tasks is narrower than a limitation to simple or repetitive tasks. Rounds v. Comm'r Soc. Sec. Admin., 807 F.3d 996, 1003-04 (9th Cir. 2015). When a doctor opines that a claimant can perform simple repetitive tasks and one-to-two-step tasks (as the 2019 state agency consulting physicians did as to Keith), an ALJ acts reasonably in adopting the broader finding of the doctor, because it is supported by a reasonable inference drawn from the record. George v. Saul, 837 Fed.Appx. 516, 517 (9th Cir. 2021) (relying on 20 C.F.R. § 416.945(a) to explain that "an RFC represents the most a claimant can do, not the least.") (citing Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)). When the ALJ limited Keith to simple, routine tasks, he rejected the 2018 prior administrative medical findings regarding one-to-two step tasks, but not the 2019 findings that determined Keith was capable of performing simple instructions. Id. (finding an ALJ need not explain his adoption of the broader of two limitations identified by a doctor because resolving a conflict in testimony is not a rejection of opinion testimony).
Keith argues the ALJ erred in not adopting the prior administrative medical findings that Keith was limited to 1-to-2-step instructions (2018) and a slow/self-paced work setting (2019). Although the ALJ offered some rationale for not finding the prior administrative medical findings wholly persuasive, he did not clarify how his reasoning applied specifically to the portions of the findings that he rejected. For example, he did not explain why he rejected the 2018 state agency consultant's limitation to one-to-two step tasks and accepted the 2019 limitation to simple tasks. Further, from April 2018 to July 2020, Keith maintained an ongoing relationship with a mental health provider, although his appointments were spaced one to six months apart. Some of his mental limitations were related to his TBI, which his primary care doctor and neurologist tracked regularly as well. Although the ALJ accurately noted that Keith more often rated his depression as mild to moderate, that was only one impairment that affected his ability to perform certain types of tasks and at a specific pace. To the extent the ALJ relied upon Keith's work at SEABHS, Keith was fired from that job prior to his alleged onset date because he was mentally unable to perform the work. (AR 511, 848, 981.) The ALJ's reasoning, to reject the prior administrative medical findings that Keith could perform only one-to-two-step tasks and needed a slow/self-paced work setting, was not supported by substantial evidence.
CONCLUSION AND RECOMMENDATION
A federal court may affirm, modify, reverse, or remand a social security case. 42 U.S.C. § 405(g). When a court finds that an administrative decision is flawed, the remedy should generally be remand for “additional investigation or explanation.” INS v. Ventura, 537 U.S. 12, 16 (2006) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)); see also Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004). However, a district court should credit as true medical opinions and a claimant's testimony that was improperly rejected by the ALJ and remand for benefits if:
(1) the ALJ failed to provide legally sufficient reasons for rejecting the testimony; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004); Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) (precluding remand for further proceedings if the purpose is solely to allow ALJ to revisit the medical opinion he rejected).
Plaintiff has requested a remand for benefits. The Court concluded that the first requirement of credit as true was satisfied, because the ALJ rejected the opinion of Dr. Matthews and the prior administrative medical findings of the state agency consultants without legally valid reasons. However, the Court finds this case would benefit from further proceedings. Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1101-01 (9th Cir. 2014). "Administrative proceedings are generally useful where the record 'has [not] been fully developed,' there is a need to resolve conflicts and ambiguities, or the 'presentation of further evidence . . . may well prove enlightening' in light of the passage of time." Id. at 1101 (internal citations omitted).
The Court did not reach Keith's argument that the ALJ erred in evaluating his symptom testimony. Because this case will be remanded for further proceedings based on the ALJ's errors regarding the opinion testimony, Keith's symptom testimony will necessary be reconsidered during that process.
First, review of the entire medical record reveals that Keith's shoulder limitations varied significantly over time. After his initial recovery from the 2016 ATV accident, as of May 30, 2017, Keith had no shoulder pain, full strength, and only a mild limitation in range of motion. (AR 1051.) In the following period, leading up to (and past) his alleged onset date, there are no medical records related to his shoulder injury. Subsequent records document that he suffered a significant re-injury to his shoulder in January 2019. (AR 537, 542, 706-07.) He sustained further injuries that aggravated his shoulder impairment in May and July 2019, and he continued to have reduced strength and range of motion throughout that time. (AR 683, 686, 957, 960.) It was not until March 2020 that a provider documented only moderate pain with motion and only mild weakness in Keith's left upper extremity. (AR 787.) Subsequently, in April and May 2020, Keith was determined to have full strength and good range of motion. (AR 777, 780.) The medical records document more than a 12-month period in which Keith experienced a significant limitation from his shoulder impairment; it is during this period that Dr. Matthew and the state agency consultants provided their opinions on Keith's left arm limitations. However, Keith's limitations from that impairment were not static throughout the entire relevant period. Further, although the medical records indicated Keith's shoulder had improved for two months, subsequent records will reveal if that improvement was sustained. Additionally, his attorney asked for a physical consulting examination, but the ALJ denied the request. (AR 23, 460.) On remand, the ALJ must evaluate the opinion evidence, and other relevant evidence, to determine what limitations Keith experienced during what time periods due to his left shoulder impairment. SSR 18-01 (requiring ALJ to employ a medical expert if a disability onset date needs to be inferred).
Second, further proceedings would be beneficial with respect to Keith's mental limitations. Keith's mental issues are complex due to the combination of psychological diagnoses and a TBI. In addition to symptoms of depression and anxiety, Keith has been documented as having seizures, blackouts, concentration and memory impairments, irritability, and poor judgment. (AR 505, 511, 529, 534, 542, 698, 703, 737, 746, 755, 764, 773, 848, 850, 864, 867, 871, 960, 981.) However, those symptoms have not all been found consistently across his providers (primary care, neurology, and mental health) and/or varied over time. And the only examining physician that offered an opinion on Keith's limitations was his primary care doctor. Further, the 2018 and 2019 state agency psychological consultants reached slightly different conclusions from one another, and both are different than the findings of his primary care doctor, who found substantial limitations that would preclude employment. (Compare AR 86-87 with AR 169-72 with AR 601, 602, 604.) His attorney asked for a psychological consulting examination (with testing), both before and at the hearing, but the ALJ denied the request. (AR 23, 49, 46263.) Finally, the 2019 state agency psychological consultants found that Keith was limited to working in a slow/self-paced work setting. (AR 172.) The ALJ rejected this finding without discussing it. The Court does not have enough information about this limitation to credit it as true and evaluate its significance to whether Keith is disabled.These various factual discrepancies and the absence of certain information are the sort of issues that should be addressed on a remand to the agency. See Burt v. Colvin, 611 Fed.Appx. 912, 915 (9th Cir. 2015).
Plaintiff discussed how this finding related to the requirements of the marker position identified by the vocational expert. (Doc. 18 at 22.) However, he did not provide a page citation to the cited reference material, Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles (1993), and the Court did not locate the quoted information. Further, even if the marker position requires work to be done "according to set procedures, sequence, or pace” and “the precise attainment of set limits, tolerances, or standards” those disjunctive requirements do not clearly preclude self paced work.
The Magistrate Judge, therefore, recommends that the District Court remand this matter for further proceedings. Upon remand, the ALJ should evaluate the entirety of the record, obtain further evidence as necessary (including a physical consultation, psychological consultation, and/or cognitive testing), and evaluate the onset date if the ALJ finds Keith disabled.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV-21-550-TUC-JGZ.