Opinion
No. CV-18-0024-TUC-DCB (BGM)
08-20-2019
Daniel Longale, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security, Defendant.
ORDER
Currently pending before the Court is Plaintiff Daniel Longale's Opening Brief (Doc. 13). Defendant filed his Brief ("Response") (Doc. 14), and Plaintiff filed his Reply Brief ("Reply") (Doc. 15). Plaintiff brings this cause of action for review of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. § 405(g).
Pursuant to Rules 72.1 and 72.2 of the Local Rules of Civil Procedure, this matter was referred to Magistrate Judge Macdonald for Report and Recommendation. Based upon the pleadings of the parties and the administrative record submitted to the Court, the Magistrate Judge recommends that the District Court grant Plaintiff's Opening Brief (Doc. 13) and remand this matter to the Administrative Law Judge ("ALJ") for further proceedings.
Rules of Practice of the United States District Court for the District of Arizona.
I. BACKGROUND
A. Procedural History
On January 9, 2014, Plaintiff filed a Title XVI application for Supplemental Security Income ("SSI") alleging disability as of October 15, 2012 due to depression, anxiety, antisocial disorder, Attention-Deficit/Hyperactivity Disorder ("ADHD"), learning disability in reading and writing, fractured lower arm, fractured shoulder, fractured hand-surgically repaired, alcohol use, and Methicillin-resistant Staphylococcus aureus ("MRSA"). See Administrative Record ("AR") at 53, 121-22, 135-38, 248-53, 261, 304, 329. The Social Security Administration ("SSA") denied this application on June 9, 2014. Id. at 53, 121-35, 151-54. On August 13, 2014, Plaintiff filed a request for reconsideration, and on December 17, 2014, SSA denied Plaintiff's application upon reconsideration. Id. at 53, 136-50, 160-63. On March 4, 2015, Plaintiff filed his request for hearing. Id. at 53, 164. On December 1, 2016, a hearing was held before Administrative Law Judge ("ALJ") George W. Reyes. Id. at 53, 70-120. On May 24, 2017, the ALJ issued an unfavorable decision. AR at 50-65. On May 30, 2017, Plaintiff requested review of the ALJ's decision by the Appeals Council, and on December 21, 2017, review was denied. Id. at 2-7, 37-49, 247, 363-73. On January 17, 2018, Plaintiff filed this cause of action. Compl. (Doc. 1).
The Disability Determination documents are dated June 5, 2014, but the Notice was sent on June 9, 2014.
B. Factual History
Plaintiff was thirty-two (32) years old at the time of the administrative hearing, and twenty-eight (28) at the time of the alleged onset of his disability. AR at 53, 63, 70, 75, 121-22, 135-38, 248, 261, 304, 329. Plaintiff finished his freshman year, and part of his sophomore year, of high school but did not obtain a degree. Id. at 75, 135-36, 266. Prior to his alleged disability, Plaintiff worked in plumbing; heating and air conditioning; and fast food. Id. at 76-77, 257-59, 267. Plaintiff also worked as a delivery driver and dishwasher. Id. at 257-59, 267.
1. Plaintiff's Testimony
a. Administrative Hearing
At the administrative hearing, Plaintiff testified that he completed the ninth grade, but was kicked out for fighting during 10th grade. AR at 75. Plaintiff further testified that he had previously worked in heating and cooling and plumbing, but neither job lasted for more than three (3) months. Id. at 76-77. Plaintiff confirmed that he claims disability as of October 15, 2012, and has not worked since that date. Id. at 78-79.
Plaintiff testified that he walks his dog approximately ten (10) minutes, a couple of times per week. Id. at 79. Plaintiff further testified that he used to walk his dog for hours approximately two (2) years prior; however, he does not enjoy doing it any more. Id. at 79-80. Plaintiff also testified that he does woodworking, making items such as jewelry boxes or little pots for plants, approximately once per week. AR at 81. Plaintiff noted that he uses the woodworking supplies and equipment that his grandfather had and does not make any money from it, but does it for a hobby. Id. at 95-96. Plaintiff also indicated that he occasionally rides a skateboard, just for something to do. Id. at 98-99.
Plaintiff testified that he was in Las Vegas, approximately eight (8) months prior to the administrative hearing, working for his uncle, moving kitchen equipment. Id. at 82-83. Plaintiff further testified that he left the job, because he got angry with some of his coworkers. Id. at 82. Plaintiff's subsequent testimony indicated that perhaps he had a falling out with his uncle during the job and won't be able to work for him in the future. AR at 90, 95.
Plaintiff testified that the longest he was able to take the medications prescribed for his mental health issues was approximately five (5) days. Id. at 83-84. Plaintiff also reported that his providers would then change his medication the following visit. Id. at 84-85. When asked about his latest diagnosis, Plaintiff was dismissive, and he complained that prescriptions have yet to be effective for him. Id. at 86, 102-03. Plaintiff testified that he smokes cigarettes and estimated that he smokes a little more than one (1) pack per day. Id. at 77. Plaintiff further testified that he smokes marijuana approximately twice per week, when he cannot sleep. AR at 77-78. Plaintiff also testified that he drinks alcohol; however, this is not on a consistent basis. Id. at 85-86. Plaintiff testified that he had been a binge drinker from high school until approximately five (5) years previously. Id. at 87. Plaintiff also noted that when he was younger, he had received a citation for driving under the influence ("DUI"). Id. Plaintiff testified that as a result, he has not driven a car since then. Id. Plaintiff also testified that he has previously used cocaine and methamphetamines; however, he had not used either substance in over a year. AR at 90-92. Plaintiff testified that he does not have a regular social life, but occasionally sees friends. Id. at 98.
Plaintiff indicated that he was hostile to the idea of group therapy. Id. at 86-87. Plaintiff testified that he has racing thoughts, but does not share them with anyone. Id. at 97. Plaintiff further testified that he had been paranoid during the previous six (6) months and that his energy swings between excessive to depressed. Id. at 97-98.
Plaintiff also testified that although he is open to the possibility of job training, he does not know when he is going to have a good day or bad day with his mental health. AR at 88-89. Plaintiff testified that in an ideal world he would be able to live alone, outside the city limits, and not have to interact with people. Id. at 88. When the ALJ asked Plaintiff about the difference between the times he could function and his current situation, Plaintiff responded that he had "more stuff," including money and a car, but was now stuck, pointing to his paranoia as the main issue health-wise. Id. at 99-100.
b. Administrative Forms
On April 24, 2014 and October 27, 2014, Plaintiff completed a Function Report—Adult in this matter. AR 279-87, 306-14. Plaintiff reported that he lived in a house with family. Id. at 279, 306. Plaintiff described his medical conditions as follows:
I can't be around more than one or two people at a time without anxiety and if I don't know people I get very frustrated and need to move around. I don't read well and can follow something if it is shown to me but I can't handle people talking to me when I am doing something. I like to do physical labor but my head and shoulder injuries limit my ability to lift or hold things for long or with regularity.Id. at 279. Plaintiff also indicated that his anxiety and aggression keep him from sustaining employment. Id. at 306. Plaintiff reported that his typical day involves interacting with his dog, showering, eating something, looking on Facebook, walking in the neighborhood, and listening to music. Id. at 280, 307. Plaintiff indicated that he is also able to go to the store to buy food for himself and his dog, visit with his friend and their children, and occasionally have a beer at a local bar. AR at 280.
Plaintiff reported that he cares for his dog including feeding, walking, playing, and occasionally bathing him. Id. at 280, 307. Plaintiff also reported that his grandmother helps him care for his dog by feeding the dog and letting him out into the yard. Id. Plaintiff indicated that prior to his illness he was able to work, drive, see friends, go to family gatherings, date, and cook. Id. Plaintiff reported that his illness cause him to have trouble falling and staying asleep. Id. Plaintiff does not report any problems with performing personal care tasks; however, he indicates that he has to shave his head because hair bothers him and that he has no interest in personal hygiene when he is depressed or anxious. AR at 281, 308. Plaintiff reported that his grandmother reminds him to keep a schedule for his medication, but he finds it difficult and later reported that he was no longer taking medication. Id. Plaintiff makes simple meals approximately twice per week. Id. Plaintiff further reports that he does not have an interest in food since his conditions began. Id.
Plaintiff reported that because he cannot do things correctly around the house, according to his grandmother, he has stopped doing them. Id. at 282, 309. Plaintiff further reported that his shoulder and arm hurt "for days" because he is too aggressive with housework. AR at 282. Plaintiff noted that he goes outside daily unless he is depressed, in which case he will stay in his room for several days at a time without coming out. Id. at 282, 309. Plaintiff reported that when he goes out he either walks or rides in a car, although the later makes him anxious. Id. Plaintiff further reported that he cannot ride the bus, because there are too many people and he gets into fights, although he later indicated that he uses public transportation. Id. Plaintiff does not drive, because he does not have a license or a car. Id.
Plaintiff reported that he shops for food and snacks, but he cannot stay in the store long and lines at the checkout cause anxiety. AR at 282, 309. Plaintiff further reported that although he can count change, he is unable to pay bills, handle a savings account, or use a checkbook/money orders. Id. at 283, 310. Plaintiff noted that he finds money management frustrating because he cannot concentrate sufficiently, and as a result Plaintiff uses cash until it is gone. Id. Plaintiff described his hobbies and interests as including watching movies on television or video and making wooden boxes out of salvaged wood. Id. Plaintiff further noted that he is anxious and has to move around a lot. Id. at 283. Plaintiff reported that he posts on Facebook, but does not have many friends. AR at 283. Plaintiff further reported that he does not like to visit or talk in person for long periods of time. Id. Plaintiff also stated that goes out regularly with his dog or to the store, and sometimes to visit a friend. Id. Plaintiff noted that he has difficulty getting along with people because he is anxious and uncomfortable around everyone. Id. at 284. Plaintiff reported that he cannot socialize with more than one or two people at a time. Id.
Plaintiff indicated that his condition affects his ability to lift, squat, bend, reach, kneel, talk, climb stairs, remember, complete tasks, concentrate, understand, follow instructions, use hands, and get along with others. AR at 284, 311. Plaintiff reported that physical activity for more than a short time causes him to hurt for days. Id. Plaintiff further reported that he can walk a long way before requiring a rest, but his ability to pay attention varies from minutes to approximately one (1) hour. Id. Plaintiff also reported that he does not follow written instructions well, needs to be shown how to do things, and can only remember uncomplicated instructions. Id. Plaintiff indicated that he does not do well with authority figures, and he cannot get a job because he is too intense and cannot deal with people, noting that they always pick fights with him. Id. at 285, 312. Plaintiff further reported that he does not handle stress or changes in routine well. AR at 285, 312.
Plaintiff reported that he no longer takes any medications, because after two years of trying to find the right medication he just gave up. Id. at 286, 313. Plaintiff reiterated his anger issues and inability to be around people. Id. at 286.
Plaintiff completed a Disability Report—Appeal indicating that his depression had gotten worse and increased his isolation. Id. at 324. Plaintiff reported vacillating between aimlessness and volatility. Id. Plaintiff also noted that he was no longer able to ride the bus due to intense anxiety. Id. at 326. Plaintiff indicated that he was hoping to be evaluated by a psychiatrist and is vehemently opposed to medication. Id. at 327.
2. Plaintiff's Medical Records
a. Treatment records
On January 6, 2012, Plaintiff established care COPE Community Services ("COPE"). AR at 374-79. Plaintiff reported his medical history as including a persistent cough due to smoking, back pain, headaches, hand surgery approximately one (1) year prior, and problems with sleeping. Id. at 374-78. Plaintiff further reported smoking approximately one (1) pack of cigarettes per day. Id. at 378. Plaintiff also indicated that he had a psychiatric evaluation when he was approximately nine (9) years of age and that the prescribed ADHD medication was not helpful. Id.
Plaintiff sought help From COPE for his anxiety and insomnia, and noted that he had trouble falling and staying asleep. Id. at 381. Plaintiff indicated that he lacks motivation and is uncomfortable without a routine. AR at 381. Plaintiff's mother reported that when Plaintiff's anxiety is high, he becomes short-tempered and aggressive. Id. Plaintiff reported that he drinks beer to help him socialize with others. Id. Plaintiff responded that he will know if things are improving if he can go out and try to get a job. Id. Plaintiff's mother indicated that she thought Plaintiff would benefit from skills building, self-esteem improvement, and possibly anxiety medication. Id. at 382. Plaintiff reported that he had been involved with the legal system as a juvenile and was cited for driving under the influence ("DUI") when he was twenty-one (21). AR at 382. Plaintiff reported that her he drinks to excess a few times per week, uses marijuana, and his medication history suggested abusing prescription drugs. Id. at 382-83, 387.
Regarding Plaintiff's drinking and marijuana use, COPE staff assessed that Plaintiff needed encouragement not to use, but had fair self-management and relapse coping skills. Id. at 385. The assessment also noted that Plaintiff's environment contained triggers that exposed him to continued use. Id. Plaintiff's risk assessment noted that he had thoughts of hurting others and was known to fight when angry. Id. at 387-89. COPE notes indicated that Plaintiff suffered some isolation. AR at 388. Plaintiff exhibited a calm and appropriate demeanor, was polite, and answered questions openly. Id. at 390. COPE notes further indicated Plaintiff had poor judgment and impulse control and fair insight. Id. at 392. Plaintiff Axis I diagnosis included anxiety disorder not otherwise specified and alcohol abuse. Id. at 393. Plaintiff's Axis II diagnosis included antisocial personality disorder. Id. Plaintiff's Global Assessment of Functioning ("GAF") score was 62, indicating moderate symptoms. AR at 395.
Plaintiff reported to COPE that he lived with his grandmother, but did not have friends and felt disconnected from his family. Id. at 399-400. Plaintiff also indicated that he felt working would take away his negative feelings. Id. at 400. Plaintiff further reported his negative school experience and dropping out of high school in the tenth grade. Id. at 401. Plaintiff noted he had not work for six (6) years and his previous employment included electronics, carpentry, and plumbing. Id. at 402. Plaintiff also indicated a history of arrests, primarily do to fighting, plus a DUI. AR at 405-06.
On January 13, 2012, Plaintiff was seen by Dale Hawkins, N.P. at COPE. Id. at 426-28. Plaintiff complained of difficulty sleeping. Id. at 426. Treatment records indicate that Plaintiff's appearance, affect, and mood were appropriate; concentration, insight, and judgment were fair; speech was normal; and he denied hallucinations, homicidal ideation/target/plan, and suicidal ideation/intent/plan. Id. NP Hawkins prescribed Trazadone. Id.
On February 6, 2012, Plaintiff was seen by Dale Hawkins, N.P. at COPE. Id. at 425-26. Plaintiff reported that he was taking medication as prescribed. Id. at 425. NP Hawkins had prescribed trazadone and added Zoloft. Treatment records indicated that Plaintiff's appearance, affect, and mood were appropriate. Id. Treatment records further indicated that Plaintiff's concentration, insight, and judgment were fair; his speech normal; and Plaintiff denied hallucinations, homicidal ideation/target/plan, and suicidal ideation/intent/plan. Id. Plaintiff's continuing diagnoses included anxiety disorder not otherwise specified, alcohol abuse, and antisocial personality disorder. AR at 425.
On April 13, 2012, Plaintiff was seen by Dale Hawkins, N.P. at COPE. Id. at 423-24. NP Hawkins noted that Plaintiff reported Zoloft made him feel like a "zombie" and was not effective. Id. at 423. As a result NP Hawkins discontinued Zoloft and prescribed Wellbutrin. Id. Treatment records indicated that Plaintiff's appearance, affect, and mood were appropriate; concentration, insight, and judgment were fair; speech was normal; and Plaintiff denied delusions, hallucinations, homicidal ideation/target/plan, and suicidal ideation/intent/plan. Id.
On January 17, 2013, Plaintiff returned to COPE for further services. Id. at 414-18. Treatment notes indicated that Plaintiff had tried several medications and reported that they were only helpful for a short period of time. Id. at 414. Plaintiff was prescribed Depakote for mood instability. Id. 414, 428. Plaintiff further reported anxiety with large crowds of people and increased anxiety riding the bus. Id. at 414. Plaintiff indicated that he had recently stopped working as a plumber due to conflicts with his boss. AR at 414. Plaintiff indicated that he is a social drinker and has a few close friends. Id. at 415. Treatment notes indicated Plaintiff's current Axis I diagnoses as Anxiety and Alcohol Abuse and Axis II diagnosis as antisocial personality disorder. Id. at 415, 427. Treatment notes further indicated Plaintiff as having social and occupational stressors and a GAF score of 59. Id. at 416.
On October 28, 2013, Plaintiff was seen by Marcel P. Garr, PA-C and Raquel L. Gibly, M.D. at the Carondelet Health Network Emergency Department. AR at 475-84. Plaintiff reported he fell while skateboarding and landed on his right hand and wrist, as well as his left elbow. Id. at 475. Plaintiff complained of soreness and swelling in his left elbow and rated his pain a nine (9) out of ten (10). Id. Treatment records indicate an unremarkable physical examination with a full range of motion in all extremities and without difficulty, except for the left elbow. Id. at 475-76. An x-ray showed a nondisplaced fracture of the left radial head. Id. at 476, 483. Plaintiff was placed in a splint and sling, directed to ice the elbow, prescribed Motrin and Percocet, and discharged to home. Id. at 476, 480. On October 31, 2013, Plaintiff was seen by Timothy G. Berney, M.D. at Arizona Orthopedics regarding left elbow pain after falling off his skateboard. AR at 430-34. X-ray of the elbow indicated minimal displacement of a comminuted small radial head fracture but no step-off within the radial-capitellar joint. Id. at 433. Dr. Berney prescribed Percocet for the pain and instructed Plaintiff to immobilize the elbow for four (4) weeks and take NSAIDs as needed. Id. at 430, 433.
On November 10, 2013, Plaintiff saw James D. Behra, M.D. in the Emergency Department of Carondelet Health Network because he reinjured his elbow. AR at 467-74. Plaintiff reported that he hit a door with the posterior left elbow and since then has had increased pain. Id. at 467. Dr. Behra's examination was unremarkable and an x-ray showed his fracture was healing and devoid of new injury. Id. at 468, 473. Dr. Behra prescribed ten (10) additional Percocet and discharged Plaintiff home. Id. at 468. On November 22, 2013, Plaintiff returned to Dr. Berney at Arizona Orthopedics for a follow-up regarding his left elbow. Id. at 435-36. Plaintiff complained of decreased mobility, stiffness, swelling, tenderness, and weakness. Id. at 435. Dr. Berney noted that Plaintiff's elbow's range of motion was acceptable for the point at which they were in treatment. AR at 436. On November 29, 2013, Plaintiff was seen by Lisa A. Briggs, N. P. in the Carondelet Emergency Department for low back pain. Id. at 461-66. Plaintiff claimed that he had not had any follow-up regarding his left elbow. Id. at 461. Plaintiff reported that he has been doubling up on his Percocet which does nothing for him and also indicated that he had attempted to get additional pain medications from his primary care provider, who would not prescribe him any. Id. NP Briggs reported that his examination was "essentially negative" and reviewed the ongoing Percocet prescriptions Plaintiff had already received. Id. at 462. NP Briggs advised Plaintiff to take Motrin and follow up with his primary care physician. Id.
On December 23, 2013, Plaintiff saw Dr. Berney at Arizona Orthopedics for a follow-up regarding his left elbow. Id. at 437-38. Plaintiff complained of continued pain of eight (8) out of ten (10) and indicated that he was taking Percocet accordingly. Id. at 437. Treatment records indicated acceptable range of motion; normal pulses; no swelling; motor and sensory examination grossly intact without deficits; no tenderness; x-ray showing good alignment; and motor strength of four (4) out of five (5). Id. at 438. Plaintiff further complained of "clicking" in the elbow. Id.
On February 6, 2014, Plaintiff returned to Dr. Berney for a follow-up. AR at 440-44. Plaintiff reported that his left elbow remained a little sore and clicked occasionally. Id. at 440. Dr. Berney's examination was unremarkable and indicated normal range of motion and movement of the elbow. Id. at 441-42. X-rays showed complete healing of the radial head fracture. Id. at 443. On February 9, 2014, Plaintiff was seen by Adrienne A. Yarnish, M.D. in the Carondelet Health Network Emergency Department ("ED"). Id. at 447-60. Plaintiff reported having been in a fight downtown resulting in bilateral anterior rib pain and pain in the fifth metacarpal/finger of his right hand. AR at 447. Physical examination was unremarkable except for abrasions over the right temple, an area of ecchymosis in the left medial orbital region, and mild tenderness of the fifth metacarpal and pinky and diffusely over the ribs. Id. at 448. A computerized tomography ("CT") scan showed a nondisplaced fracture of the nasal bone and a possible fracture in the fifth metacarpal—the radiologist could not determine if this latter was a current or old fracture. Id. at 449, 456, 460. Plaintiff was prescribed ibuprofen and tramadol and discharged home. Id. at 449, 453.
On September 3, 2015, Plaintiff saw Philip Randall, BHP LPC at Behavioral Health Counseling and Wellness Center. AR at 510-16. Plaintiff's current problems were listed as generalized anxiety disorder, syncope, astigmatism, marijuana abuse, concussion with loss of consciousness of unspecified duration, and anxiety depression. Id. at 515. On November 16, 2015, Plaintiff saw Catherine Etori, BHMP PMHNP at Behavioral Health Wilmot Family Health Center. Id. at 517-20. Plaintiff reported having been seen at COPE previously and that he only took the medication they prescribed for four (4) days because it made him more depressed. Id. at 518. Plaintiff further reported daily depression and anxiety, as well as an anger issue. Id. Plaintiff denied auditory or verbal hallucinations, but reported that he had special powers including being able to tell what people will say before they do and feeling the presence of ghosts. AR at 518. Plaintiff also reported feeling paranoid. Id. Plaintiff reported using marijuana approximately twice per week to help him sleep. Id. NP Etori reported that Plaintiff's thought content and disturbances of perception included delusions and his impulse control was poor; however, the remainder of his mental status exam was unremarkable. Id. at 519. NP Etori diagnosed Schizoaffective disorder and prescribed Tegretol and Risperdal. Id.
On April 11, 2016, Plaintiff saw Lindsey Emel, BHT at Behavioral Health Wilmot Family Health Center. AR at 521-22. Plaintiff reported that he did not want to take any medication because "nothing works." Id. at 521. Plaintiff further reported an interest in individual therapy, but that he was not interested in group therapy. Id. Plaintiff also reported not wanting to look for work and his mother expressed concern about his isolating for days at a time. Id. Plaintiff indicated that he had been getting into fights and was awaiting a court date. Id. On April 25, 2016, Plaintiff saw Paul Tweekrem BHT at Behavioral Health Wilmot Family Health Center. AR at 523-24. Plaintiff reported ongoing anger several times per day and that he had been arrested on assault charges. Id. at 523. Plaintiff further reported poor sleep hygiene. Id. BHT Tweekrem provided Plaintiff with psychoeducational information, including a handout, regarding good sleep hygiene and the link between anxiety, anger, and sleep, as well as the book The Four Agreements. Id.
On May 16, 2016, Plaintiff saw Lindsey Emel BHT at Behavioral Health Wilmot Family Health Center. Id. at 525-26. Plaintiff reported that he was disinterested in individual therapy and discussed his anger outbursts. AR at 525. Plaintiff further reported that the assault charges had been dropped. Id. Plaintiff expressed an interest in mediation management. Id. On July 19, 2016, Plaintiff saw NP Etori at Behavioral Health Wilmot Family Health Center. Id. at 527-29. NP Etori noted that Plaintiff was to have followed up in December 2015, but failed to do so. Id. at 528. Plaintiff reported that he had taken the prescribed medications for approximately five (5) days, but stopped because they slowed him too much. AR at 528. Plaintiff further reported that he continued having anger issues, as well as manic episodes, and was experiencing depression characterized by isolating, poor appetite, and sleep fluctuations. Id. Plaintiff declined therapy. Id. NP Etori directed Plaintiff to restart Tegretol. Id. Alexander Puca, BA/BHT at Behavioral Health Wilmot Family Health Center wrote a letter on behalf of Plaintiff. Id. at 533. Mr. Puca noted that Plaintiff's social skills "are greatly hindered by his inability to control his mood." Id. Mr. Puca further reported that Plaintiff had requested a determination of Serious Mental Illness ("SMI"). AR at 533. Mr. Puca opined that Plaintiff was "too unstable for employment in any condition or capacity at this time." Id.
On March 15, 2017, Crisis Response Network Eligibility & Care Services found Plaintiff eligible to receive severe mental illness services. Id. at 535.
b. Examining physicians
i. Jeri B. Hassman , M.D.
On May 8, 2014, Jeri B. Hassman, M.D. examined Plaintiff at the request of the Arizona Department of Economic Security ("AZDES"). AR at 489-96. Dr. Hassman indicated that Plaintiff reported drinking heavily until approximately two (2) years prior, but currently drinks approximately two (2) to four (4) alcoholic drinks per week; his last job was as a plumber's helper, which was "not a good fit"; he was in a fight while riding the bus and fractured his right hand requiring surgery; he fractured his right shoulder; he subsequently fractured his left elbow while skateboarding; and that although doctors thought that he might have MRSA, they ultimately decided that he did not. Id. at 489. Dr. Hassman reviewed his medical records regarding the left elbow fracture and his emergency department visit after he was in a fight in downtown Tucson. Id. at 490. Dr. Hassman noted that Plaintiff's past medical history was "[n]egative except for allegations of anxiety, bipolar, depression, antisocial disorder, and learning disability." Id. Dr. Hassman reviewed Plaintiff's systems indicating frequent depression and anxiety; occasional neck pain, low back pain, abdominal pain, nausea, ringing in his ears, shortness of breath, and tingling of his fingers; and no headaches, vomiting, diarrhea, constipation, visual problems, hearing loss, chest pain, numbness or tingling of his legs, feet, or toes, or bowel or bladder symptoms. Id. Dr. Hassman's physical examination of Plaintiff was unremarkable except for very mild tenderness over the right fifth metacarpal; reduced grip strength on the left with some elbow pain; and very mild right hand pain during grip test. AR at 490-91. Dr. Hassman opined that the conditions she noted would not impose any limitation for twelve (12) continuous months. Id. at 492.
ii. Bruce McHale , Ph.D.
On May 30, 2014, Bruce McHale, Ph.D. examined Plaintiff at the request of AZDES. AR at 497-502. Dr. McHale noted Plaintiff's allegations of anxiety, bipolar, depression, antisocial disorder, ADHD, learning disability, fractured arm, fractured shoulder, fractured hand, alcohol use, and MRSA. Id. at 497. Dr. McHale reviewed Plaintiff's February 19, 2014 Emergency Department records. Id. Plaintiff reported living with his grandmother and denied any history of serious medical problems. Id. Plaintiff further reported that he was not currently taking any medication, although he did receive pills for anxiety and sleep issues from a social service agency. Id. Plaintiff also reported that he was not working and denied having anger problems at work or being resistant to taking direction from supervisors. AR at 498. Plaintiff indicated that he is a smoker, drinks alcohol, and uses marijuana, but denied dependence. Id. Plaintiff reported that he liked to walk or hike with his dog, skateboard, and do wood-working projects, and associated with his "drinking buddies." Id. Plaintiff further reported that he is eligible for reinstatement of his driver's license, but has not paid the outstanding fines to obtain it, and he avoids public transportation because he gets in fights. Id. at 498-99.
Dr. McHale's observations regarding Plaintiff's appearance were unremarkable. Id. at 499. Dr. McHale reported Plaintiff's MMSE-2 Standard Version (Blue Form) score was twenty-four (24) out of thirty (30) points, equaling a T score of thirty-seven (37). AR at 499. Dr. McHale further noted that Plaintiff's general knowledge and judgment appeared to fall within normal limits Id. Dr. McHale also noted that Plaintiff exhibited a logical and organized thought process and denied symptoms of delusional thinking or auditory or visual hallucinations. Id. Dr. McHale reported that Plaintiff denied current homicidal or suicidal ideations, described his mood as up and down, and that his anxiety had been increasing over the previous five (5) years. Id. Dr. McHale also noted Plaintiff reported a long history of problems with his temper leading to physical altercations. Id. at 500.
Dr. McHale diagnosed Attention-Deficit/Hyperactivity Disorder, Combined Type, Generalized Anxiety Disorder, Insomnia Related to Anxiety, and a GAF score of 55. AR at 500. Dr. McHale opined that Plaintiff's conditions would limit him for twelve (12) consecutive months. Id. at 501. Dr. McHale further opined that Plaintiff's ability to understand and recall information was within normal limits. Id. Dr. McHale noted that Plaintiff's long history of ADHD symptoms suggested that he would struggle with tasks requiring a high level of working memory and concentration. Id. Dr. McHale also opined that Plaintiff would have initial difficulty establishing relationships at work due to his anxiety and would do best in occupations that have minimal direct contact with the public. Id. Dr. McHale opined that Plaintiff would have difficulty adjusting to new tasks or situations. AR at 501. Dr. McHale further opined that Plaintiff would not be capable of managing benefit payments in his own interest. Id.
iii. Noelle Rohen , Ph.D.
On December 11, 2014, Noelle Rohen, Ph.D. examined Plaintiff at the request of AZDES. AR at 503-08. Plaintiff reported that he was seeking disability because of the various hand, elbow, and arm fractures that he had suffered. Id. at 503. Plaintiff denied treatment for medical conditions. Id. Plaintiff reported that he was diagnosed with ADHD as a small child and treated with stimulant meds. Id. Plaintiff further reported that as an older child he became impulsive with fighting, and as an adult he feels the hyperactivity is limited to his cognitive processes and he is poorly motivated regarding tasks that do not interest him. Id. Plaintiff also stated that he feels minimally impulsive currently, but avoids people to keep from having impulsive anger. AR at 503. Plaintiff reported that his mood is most often irritable and mildly depressed, although he does have positive periods as well as more severe depression. Id. at 504. Plaintiff further reported that his sleep was erratic; daytime energy level was "slow"; appetite was fair; motivation for hygiene was chronically poor, but accomplished after procrastination; and did not have suicidal ideation or hallucinations. Id. Dr. Rohen opined that Plaintiff's description of sudden bouts of agitation sounded more like anxiety than mania. Id. Plaintiff reported anxiety regarding doing new tasks. Id. Plaintiff reported seasonal work and denied ever having been fired, but indicated that he quit many times over arguments regarding pay. AR at 504. Plaintiff denied having problems getting along or having problems with performance. Id.
Plaintiff reported occasional use of alcohol, but denied any problems with alcohol either past or present, and denied regular use of recreational drugs. Id. at 505. Plaintiff did acknowledge smoking marijuana twice per month to sleep. Id. Plaintiff also reported being a smoker. Id. Plaintiff indicated that he had a DUI in his early twenties, as well as an assault charge as a juvenile, regarding which he claimed he had not touched the victim. AR at 505. Plaintiff reported living with his grandmother, and that he does not drive and dislikes public transportation due to conflicts. Id. Plaintiff also indicated that he socializes with a few friends weekly. Id.
Dr. Rohen administered a Folstein Mini Mental Status Examination and reported that Plaintiff scored twenty-four (24) out of thirty (30). Id. Dr. Rohen's observations of Plaintiff during their interactions were unremarkable. Id. Dr. Rohen reported Plaintiff to have adequate abstracting ability, but had difficulty with a serial subtraction task. AR at 505-06. Dr. Rohen diagnosed Attention-Deficit/Hyperactivity Disorder, Combined Type, Anxiety Disorder Not Otherwise Specified, and Mood Disorder Not Otherwise Specified. Id. at 506. Dr. Rohen opined that if Plaintiff were awarded benefits, he would be grossly capable of managing benefits on his own behalf. Id. Dr. Rohen further opined that Plaintiff's conditions would be expected to impose limitations for more than twelve (12) months. Id. at 507. Dr. Rohen also opined that Plaintiff's understanding and memory appeared grossly intact; he had mild attentional lapses suggesting that he would do better on repetitive tasks; and that his reported frequent aggressive conflict with strangers suggested that he might do better in settings in which the social demand on him was low. Id.
c. Records produced to the Appeals Council
On October 16, 2017, Plaintiff was charged with disorderly conduct and disturbing the peace. AR at 13-17, 30-34. On November 7, 2017, Plaintiff saw Alexander Puca, BHT at Behavioral Health Wilmot Family Health Center. Id. at 10-12, 21-23. Plaintiff's Care Plan indicated that MHC and Beacon Group were willing to work with Plaintiff for work adjustment training and noted that "[m]ember is in need of obtaining a full-time or part-time job." Id. at 10, 21. Services were noted to facilitate the stated goals of decreasing Plaintiff's anger and aggression, as well as depression and anxiety. Id. at 11, 22.
3. Vocational Expert Scott K. Nielson , Jr.'s Testimony
Mr. Scott Nielson testified as a vocational expert at the administrative hearing. AR at 53, 107-16. Mr. Nielson described Plaintiff's past relevant work as an air conditioning installer, Dictionary of Occupational Titles ("DOT") number 637.687-010, semi-skilled work, and exertional level of heavy. Id. at 110-11. Mr. Nielson further described the job of inventory clerk, DOT number 222.387-026, as semi-skilled, with a Specific Vocational Preparation ("SVP") of 4, and an exertional level of medium. Id. at 111. Mr. Nielson also described the job of shipping and receiving clerk, DOT number 222.387-050, as skilled, with an SVP of 5 and exertional level of medium. Id. The last job Mr. Nielson described was delivery driver, DOT number 292.353-010, a semi-skilled job, with an SVP of 3, and medium exertional level. Id.
The ALJ asked Mr. Nielson to consider a hypothetical individual without any exertional limitations, but limited to performing only simple, routine tasks and unable to perform such tasks in a fast-paced production environment. AR at 111-12. The ALJ placed a further limitation on the hypothetical individual, limiting him to only occasional interaction with his supervisors and coworkers and even more limited to only brief intermittent and superficial public contact, but able to attend and concentrate in two-hour blocks of time throughout an eight (8) hour workday with the two (2) customary ten (10) to fifteen (15) minute breaks and the customary thirty (30) to sixty (60) minute lunch period. Id. at 112. Mr. Nielson that such an individual would not be able to perform Plaintiff's past work, because simple and routine is the definition for unskilled work. Id.
The ALJ added to his hypothetical individual that such individual was thirty-two (32) years old and had not graduated from high school. Id. at 112-13. The ALJ enquired as to the availability of jobs for such and individual in either the national or regional economies. Id. at 113. Mr. Nielson testified that a hospital cleaner, DOT number 323.687-010, is unskilled, with an SVP 2, exertional level of medium has approximately 42,100 full-time jobs in the national economy. AR at 113. Mr. Nielson further testified that another possible job would be laborer of stores, meaning warehouse workers, DOT number 922.687-058, unskilled, an SVP of 2, exertional level of medium, and with approximately 20,460 full-time jobs in the national economy. Id. at 114. Mr. Nielson also testified that a cleaner or housekeeping, DOT number 323.687-014, is unskilled, with an SVP of 2, light exertional level, and with approximately 136,590 jobs available in the national economy. Id. Mr. Nielson testified that another possible light exertional job would be as an advertising materials distributor, DOT number 230.687-010, with an SVP of 2, and approximately 47,890 full-time jobs in the national economy. Id. Finally, Mr. Nielson testified regarding the availability of addresser, DOT number 209.587-010, which is unskilled, with an SVP of 2, and a sedentary exertional level, which has approximately 6,200 jobs available in the national economy. Id. Mr. Nielson also testified that his testimony was consistent with the Dictionary of Occupational Titles. AR at 114.
The ALJ then asked about how often a person could be absent from work and still sustain employment in the jobs presented. Id. at 115. Mr. Nielson testified that, in his opinion, there could be no unexcused absences during the probationary period, which is usually sixty (60) to ninety (90) days, after which one unexcused absence per month would make it difficult to sustain employment. Id. Mr. Nielson further opined that two or more unexcused absence per month would preclude work. Id. The ALJ then asked about how frequently an individual could be off task. Id. Mr. Nielson opined that if someone is off task ten (10) percent or more during the workday, they would not be able to maintain employment. AR at 115. Mr. Nielson testified that his opinions were based upon his experience and training, as well as research and consultation with other vocational experts. Id. at 115-16.
4. Lay Witness Testimony
a. William R. Longale
On April 23, 2014, Plaintiff's father completed a Function Report—Adult—Third Party. AR at 288-95. Mr. Longale reported that Plaintiff lives in a house with family, and he sees Plaintiff approximately three (3) times per month. Id. at 288. Mr. Longale further reported that Plaintiff "spends time with his dog, walks around the neighborhood, shops for snacks, uses his phone, watches movies, argues with his grandmother, plays music/CDs, eats walks, and showers occasionally." Id. Mr. Longale also indicated that Plaintiff walks and feeds his dog, but that his grandmother takes over when necessary. Id. at 289. Mr. Longale observed that prior to the onset of Plaintiff's disability, he was able to socialize with family and "participate in life," including earning income. Id. Mr. Longale described Plaintiff as often sleep deprived and very testy, sometimes showing a lack of attention to personal care when he is depressed. AR at 289-90.
Mr. Longale reported that Plaintiff is able to prepare snacks and warming food, but shows limited patience for more involved cooking. Id. at 290. Mr. Longale further reported that Plaintiff does not do any household chores without help and requires help unless it is a fast and intense activity. Id. Mr. Longale also reported that Plaintiff shopped for snacks and dog food in stores and did so daily. Id. at 291. Mr. Longale indicated that Plaintiff could count change, but was unable to pay bills, handle a savings account, or use a checkbook or money orders. Id. Mr. Longale noted that Plaintiff does not plan or save and spends his money until it is gone. AR at 292.
Mr. Longale reported that Plaintiff likes movie and used to do wood-working but currently does not show interest in activities, but does walk daily. Id. Mr. Longale further reported that Plaintiff sends text messages daily but rarely interacts with people directly. Id. at 292, 295. Mr. Longale also reported that Plaintiff has conflicts with everyone and often gets into physical altercations with people that he does not know. Id. at 293. Mr. Longale also indicated that psychiatric medications made this behavior worse. Id. at 293, 295.
Mr. Longale noted that Plaintiff has issues with lifting, completing tasks, concentration, understanding, and getting along with others. AR at 293. Mr. Longale also noted that Plaintiff's shoulder and hand injuries have made it unsafe for him to do physical labor. Id. at 293, 295. Mr. Longale reported that Plaintiff has difficulty paying attention because he is easily frustrated and distracted and follows spoken instructions better than written. Id. at 293. Mr. Longale further reported that Plaintiff does not react well to authority and does not like change or handle stress well. Id. at 294. Mr. Longale described Plaintiff as confrontational, negative, aggressive, and verbally abusive. Id. Mr. Longale noted that Plaintiff wears glasses. AR at 294.
b. Kelly Cassidy Longale
On October 27, 2014, Mrs. Longale completed a Function Report—Adult. AR at 315-323. Mrs. Longale reported that Plaintiff lives in a house with his elderly grandmother. Id. at 315. Mrs. Longale further reported that Plaintiff lacks confidence, but acts as though others do not appreciate him. Id. Mrs. Longale further opined that his anxiety, anti-social behavior, and feelings of persecution have prevented Plaintiff from maintaining employment. Id. Mrs. Longale also indicated that his elbow, hand, and shoulder injuries preclude physical labor. Id. Mrs. Longale described Plaintiff's day as tending to personal hygiene, unless he does not have anywhere to be, listening to music, looking at Facebook, eating, and walking in the neighborhood. AR at 316. Mrs. Longale commented that Plaintiff does not have a social life because his relationships are unhealthy. Id. Mrs. Longale further reported that Plaintiff cares for his dog, but Plaintiff's grandmother makes sure that the dog has food and water. Id. Mrs. Longale noted that Plaintiff has difficulty sleeping and isolates from others. Id. Mrs. Longale further noted that Plaintiff does not attend to his personal hygiene regularly when he is depressed. Id. at 317.
Although this form is normally used by the person seeking disability, Mrs. Longale noted that it was "for" claimant and answered questions as a third party observer.
Mrs. Longale reported that Plaintiff is able to prepare easy meals or reheat food but does not cook. AR at 317. Mrs. Longale further reported that Plaintiff tries to do laundry but "gets in trouble because [he] doesn't follow directions." Id. at 318. Mrs. Longale described Plaintiff as depressed and unmotivated to do chores. Id. Mrs. Longale indicated that Plaintiff goes outside daily and walks or uses public transportation. Id. Mrs. Longale noted that Plaintiff does not have a license. Id. Mrs. Longale reported that Plaintiff shops for food in stores, but does not like to be in the store long. AR at 318. Mrs. Longale further reported that Plaintiff can count change but cannot pay bills, handle a savings account, or use a checkbook or money orders. Id. at 319. Mrs. Longale also noted that Plaintiff spends money until it is gone. Id. Mrs. Longale indicated that Plaintiff watches television daily and uses broken furniture to make wood boxes. Id. Mrs. Longale further indicated that Plaintiff's social interactions involved daily posting of comments on social media, and seeing friends in person once or twice per month. Id.
Mrs. Longale noted that Plaintiff's conditions affect his ability to lift, bend, complete tasks, concentrate, understand, follow instructions, use his hands, and get along with others. AR at 320. Mrs. Longale reported that Plaintiff walks everywhere in the neighborhood and has a very short attention span. Id. Mrs. Longale further reported that Plaintiff follows spoken instructions better than written. Id. Mrs. Longale noted that Plaintiff does not get along with authority figures, and stress or change cause him to become angry. Id. at 321. Mrs. Longale further noted that Plaintiff wears glasses. Id. Mrs. Longale reported that Plaintiff's anxiety and outbursts have increased and has a history of ADHD, but does not currently take any medications because of negative side effects. Id. at 322.
II. STANDARD OF REVIEW
The factual findings of the Commissioner shall be conclusive so long as they are based upon substantial evidence and there is no legal error. 42 U.S.C. §§ 405(g), 1383(c)(3); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). This Court may "set aside the Commissioner's denial of disability insurance benefits when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted); see also Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014).
Substantial evidence is "'more than a mere scintilla[,] but not necessarily a preponderance.'" Tommasetti, 533 F.3d at 1038 (quoting Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003)); see also Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). Further, substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Where "the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ." Tackett, 180 F.3d at 1098 (citing Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007). Moreover, the court may not focus on an isolated piece of supporting evidence, rather it must consider the entirety of the record weighing both evidence that supports as well as that which detracts from the Secretary's conclusion. Tackett, 180 F.3d at 1098 (citations omitted).
III. ANALYSIS
A. The Five-Step Evaluation
The Commissioner follows a five-step sequential evaluation process to assess whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4). This process is defined as follows: Step one asks is the claimant "doing substantial gainful activity[?]" If yes, the claimant is not disabled; step two considers if the claimant has a "severe medically determinable physical or mental impairment[.]" If not, the claimant is not disabled; step three determines whether the claimant's impairments or combination thereof meet or equal an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App.1. If not, the claimant is not disabled; step four considers the claimant's residual functional capacity and past relevant work. If claimant can still do past relevant work, then he or she is not disabled; step five assesses the claimant's residual functional capacity, age, education, and work experience. If it is determined that the claimant can make an adjust6ment to other work, then he or she is not disabled. 20 C.F.R. § 404.1520(a)(4)(i)-(v).
In the instant case, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his application date of January 9, 2014. AR at 55. At step two of the sequential evaluation, the ALJ found that "the claimant has the following medically determinable impairments: anxiety disorder, attention deficit-hyperactivity disorder (ADHD), and alcohol and substance abuse disorder (20 CFR 416.920(c))." Id. At step three, the ALJ further found that "[t]he claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926)." Id. at 56. Prior to step four and "[a]fter careful consideration of the entire record," the ALJ determined that "the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following non-exertional limitations: he is limited to performing only simple, routine tasks; cannot perform such tasks in a fast-paced production environment; is limited to only occasional interaction with supervisors and coworkers, and further limited to brief, intermittent, and superficial public contact; and can attend and concentrate in 2-hour blocks of time throughout an 8-hour workday with the customary 10 to 15 minute break and 30 to 60 minute lunch break period." Id. at 58. At step four, the ALJ found that "[t]he claimant is unable to perform any past relevant work (20 CFR 416.965)." Id. at 62. At step five, the ALJ found that after "[c]onsidering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969(a))." AR at 63. Accordingly, the ALJ determined that Plaintiff was not disabled. Id. at 64.
Plaintiff asserts that the ALJ erred by failing to mention his diagnosis of schizoaffective disorder and failing to adequately articulate reasons for discounting Plaintiff's symptom testimony. See Opening Br. (Doc. 13).
B. Step Two Analysis
The Social Security Act defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A). The claimant bears the burden to show medical evidence consisting of signs, symptoms, and laboratory findings to establish a medically determinable physical or mental impairment. Ukolov v. Barnhart, 420 F.3d 1002, 1004-05 (9th Cir. 2005); 20 C.F.R. §§ 404.1512, 404.1520; see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
"[T]he step-two inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing Bowen v. Yuckert, 482 U.S. 137, 153-54, 107 S.Ct. 2287, 2297-98, 96 L.Ed.2d 119 (1987)). "It is not meant to identify the impairments that should be taken into account when determining the RFC." Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017). Moreover, "[i]n assessing RFC, the adjudicator must consider limitations and restrictions imposed by all of an individual's impairments, even those that are not 'severe.'" Id. at 1049 (quoting Titles II & XVI: Assessing Functional Capacity in Initial Claims, Social Security Ruling ("SSR") 96-8p, 1996 WL 374184, at *5 (S.S.A. July 2, 1996)) (alterations in original). As such, "[t]he RFC . . . should be exactly the same regardless of whether certain impairments are considered 'severe' or not." Buck, 869 F.3d at 1049 (emphasis in original).
"An impairment or combination of impairments may be found 'not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work.'" Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting Smolen, 80 F.3d at 1290 (emphasis added)). "[O]nce a claimant produces objective medical evidence of an underlying impairment, an [ALJ] may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain." Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (quoting Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc)) (alterations in original). Moreover, "[t]he ALJ may not reject the opinion of a treating physician, even if it is contradicted by the opinions of other doctors, without providing 'specific and legitimate reasons' supported by substantial evidence in the record." Id. (citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)).
Here, the Commissioner argues that "[b]ecause the ALJ decided step two in Plaintiff's favor, finding that he passed the threshold by establishing the existence of one or more severe impairments, there can be no harmful error at step two." Response (Doc. 14) at 5. Plaintiff points out, however, that "the ALJ did not address the impairment at all, [and] the Step Two error propagates through all subsequent steps of analysis and constitutes harmful error requiring remand. Reply (Doc. 15) at 2.
Plaintiff's medical records document a diagnosis of schizoaffective disorder. AR at 519. Review of the ALJ's opinion confirms that he did not address this diagnosis beyond passing reference to its existence in Plaintiff's medical records. See id. at 50-65. If the ALJ had properly considered the schizoaffective disorder diagnosis in developing Plaintiff's RFC any potential error in its omission at Step Two would have been harmless. See Buck, 869 F.3d 1040. Because the ALJ omitted the diagnosis from his analysis, the Court cannot find such error harmless. See Mercado v. Berryhill, 2017 WL 4029222, *6 (N.D. Cal. Sept. 13, 2017).
C. Plaintiff's Symptoms
1. Legal standard
An ALJ must engage in a two-step analysis to evaluate a claimant's subjective symptom testimony. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, "a claimant who alleges disability based on subjective symptoms 'must produce objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged[.]'" Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal quotations omitted)); see also Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014). Further, "the claimant need not show that h[is] impairment could reasonably be expected to cause the severity of the symptom []he has alleged; []he need only show that it could reasonably have caused some degree of the symptom." Smolen, 80 F.3d at 1282 (citations omitted); see also Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). "Nor must a claimant produce 'objective medical evidence of the pain or fatigue itself, or the severity thereof.'" Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (quoting Smolen, 80 F.3d at 1282). "[I]f the claimant meets this first test, and there is no evidence of malingering, '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.'" Lingenfelter, 504 F.3d at 1036 (quoting Smolen, 80 F.3d at 1281); see also Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014) (rejecting the contention that the "clear and convincing" requirement had been excised by prior Ninth Circuit case law). "This is not an easy requirement to meet: 'The clear and convincing standard is the most demanding required in Social Security cases.'" Garrison, 759 F.3d at 1015 (quoting Moore v. Comm'r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).
2. ALJ findings
Here, the ALJ acknowledged the two-step process for assessing Plaintiff's symptom testimony. AR at 58. The ALJ then found "[a]fter careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to produce the above alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision." Id. at 59. The ALJ then found that the Plaintiff's "statements have been found to affect the claimant's ability to work only to the extent they can reasonably be accepted as consistent with the objective medical and other evidence." Id. The ALJ went on to review the medical record and rejected Plaintiff's symptom testimony because 1) Plaintiff "admitted non-compliance with his prescribed medication because it "slowed him too much"; 2) Plaintiff "was discharged from services as he no longer exhibited symptoms of depression or anxiety, and no longer required support otherwise"; and 3) substance use. Id. at 58-60. The ALJ concluded that "[a]lthough the medical records as a whole support the existence of the claimant's alleged medical impairments of anxiety disorder, attention deficit-hyperactivity disorder (ADHD), and alcohol and substance abuse disorder, the medical evidence does not support the claimant's allegations as to the severity, persistence, and intensity of his impairments and, as such does not support more restrictive limitations than the residual functional capacity determined herein." Id. at 60.
a. Treatment noncompliance
The ALJ reviewed Plaintiff's non-compliance with his medication and found that "[n]on-compliance is certainly a factor an ALJ may take into account in evaluating disability." AR at 59 n.1. The ALJ pointed to specific records to demonstrate Plaintiff's noncompliance without further analysis. See id. at 59-60. SSR 16-3p states, in relevant part:
Social Security Rulings are "binding on all components of the Social Security Administration." 20 C.F.R. §§ 402.35(b)(1) and (2); Heckler v. Edwards, 465 U.S. 873 n. 3, 104 S.Ct. 1532, 79 L.Ed.2d 878 (1984).
We will not find an individual's symptoms inconsistent with the evidence in the record on [the basis of failing to follow prescribed treatment that might improve symptoms] without considering possible reasons he or she may not comply with treatment or seek treatment consistent with the degree of his or her complaints. We may need to contact the individual regarding the lack of treatment or, at an administrative proceeding, ask why he or she has not complied with or sought treatment in a manner consistent with his or her complaints[,] . . . [and] [w]e will explain how we considered the individual's reason in our evaluation of the individual's symptoms.SSR 16-3p, available at 2016 WL 1119029 at *8-9 (March 16, 2016). The ALJ did inquire about why Plaintiff was noncompliant, yet did not explain how he considered the reasons in his evaluation. See AR at 59-60. Rather, the ALJ simply stated that non-compliance is a reason to discount the testimony. But see Fair v. Bowen, 885 F.2d 597 (9th Cir. 1989) ("an unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment" is evidence which may discredit Plaintiff's symptom testimony, but the ALJ must make a finding that "the proffered reason is not believable."). The ALJ did not make any findings regarding the believability of Plaintiff's proffered reason for not taking his prescribed medications. As such, Plaintiff's treatment noncompliance was not a legally sufficient reason for discounting his symptom testimony. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996); SSR 16-3p, 2016 WL 1119029 at *8-9.
b. Discharge from psychiatric care
The ALJ found that "[i]ndicative[] [of Plaintiff's failure to follow treatment recommendations], the treatment notes further indicate that the claimant was discharged from services as he no longer exhibited symptoms of depression or anxiety, and no longer required support otherwise." AR at 60 (citations omitted). Plaintiff urges that "[t]here is no indication in the record that Mr. Longale had stopped treatment . . . or that his symptoms had abated to the point where he no longer required treatment." Opening Brief (Doc. 13) at 9. The Commissioner notes that "[t]his appears to be a misreading of the treatment note." Response (Doc. 14) at 10 n.5. This Court is "constrained to review the reasons the ALJ asserts." Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (citations omitted). The ALJ appears to use this misreading of the treatment record as support for discounting Plaintiff's symptom testimony. This is legally insufficient.
c. Substance abuse
Plaintiff contends that "[t]he ALJ impermissibly allowed his negative perception of polysubstance use to color an analysis that otherwise has nothing to do with drug use." Opening Brief (Doc. 13) at 12. Plaintiff further urges, that if the ALJ considered Plaintiff's polysubstance use material to his claim, the ALJ erred in refusing to perform the two-step materiality analysis pursuant to SSR 13-2p. Id. As the Commissioner notes, the Ninth Circuit Court of Appeals has instructed that "it is only when a claimant with drug and alcohol abuse is found disabled through the five step sequential evaluation that the Commissioner must then make a determination about materiality." Response (Doc. 14) at 9 (citing Bustamante v. Massanari, 262 F.3d 949, 955 (9th Cir. 2001)). The Commissioner is correct regarding the materiality analysis; however, to the extent that the ALJ is relying on inconsistencies regarding Plaintiff's substance abuse statements to discredit his symptom testimony, the ALJ did not make specific findings. See Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (requiring the ALJ to connect the record to symptom testimony and make specific findings—stating a non-credibility conclusion and then summarizing the medical evidence is insufficient).
d. Incongruity with objective examinations
Plaintiff asserts that the ALJ's statement that the "medical evidence before the relevant period did not entirely support the level of severity alleged by the claimant" is not a clear and convincing reason to discount Plaintiff's symptom testimony. Opening Br. at 15 (citing AR at 59). As noted previously, simply stating a non-credibility conclusion and then summarizing the medical evidence is not sufficient. Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015). As the Ninth Circuit Court of Appeals has noted, "[t]his is not the sort of explanation or the kind of 'specific reasons' we must have in order to review the ALJ's decision meaningfully, so that we may ensure that the claimant's testimony was not arbitrarily discredited." Id. The Commissioner urges that despite any alleged insufficiencies raised by the Plaintiff, "the ALJ provided multiple valid reasons to find Plaintiff's reports not full reliable." Response (Doc. 14) at 10. Review of the ALJ's decision, however, shows a consistent reliance on a conclusory finding followed by a summary of the medical record. While the ALJ's conclusions may ultimately be the same, for sufficient review by this Court additional explanation is required.
IV. CONCLUSION
"'[T]he decision whether to remand the case for additional evidence or simply to award benefits is within the discretion of the court.'" Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989) (quoting Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985)). "Remand for further administrative proceedings is appropriate if enhancement of the record would be useful." Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) (citing Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000)). Conversely, remand for an award of benefits is appropriate where:
(1) the ALJ failed to provide legally sufficient reasons for rejecting the evidence; (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, 379 F.3d at 593 (citations omitted). Where the test is met, "we will not remand solely to allow the ALJ to make specific findings. . . . Rather, we take the relevant testimony to be established as true and remand for an award of benefits." Id. (citations omitted); see also Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). "Even if those requirements are met, though, we retain 'flexibility' in determining the appropriate remedy." Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014).
Here, the ALJ committed legal error in rejecting Plaintiff's symptom testimony and failing to address his schizoaffective disorder diagnosis. It is not clear from the record that the ALJ would be required to find the claimant disabled. As such, the Court finds that remand on an open record is appropriate in this case. The ALJ is instructed to reassess Plaintiff's symptom testimony and account for all medical diagnoses in his analysis. In light of the foregoing, the Court recommends that the ALJ's decision be reversed and the case remanded for further proceedings consistent with this decision.
VI. RECOMMENDATION
For the reasons delineated above, the Magistrate Judge recommends that the District Judge enter an order GRANTING Plaintiff's Opening Brief (Doc. 13) and REVERSING and REMANDING the Commissioner's decision.
Any written objections to this Report and Recommendation shall be filed and served on or before August 30, 2019. Any response to another party's objections shall be filed and served on or before August 9, 2019. No replies shall be filed unless leave is granted from the District Court. If objections are filed, the parties should use the following case number: CV-18-024-TUC-DCB.
Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.
Dated this 20th day of August, 2019.
/s/_________
Honorable Bruce G. Macdonald
United States Magistrate Judge