Opinion
CV-22-00051-TUC-JCH (MSA)
06-01-2023
Elizabeth Lovelace, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable Maria S. Aguilera United States Magistrate Judge
Plaintiff Elizabeth Lovelace seeks judicial review of an unfavorable decision issued by the Commissioner of Social Security Administration. For the following reasons, the Court will recommend that the Commissioner's decision be reversed and that this matter be remanded for a new hearing and decision.
Background
Plaintiff is 30 years old. (AR 123.) She is a recovering drug addict and victim of trauma and abuse. (AR 3648-51.) She has a ninth-grade education and experience working as a cashier, cook, and janitor. (AR 140.) She alleges that she is disabled because of bipolar disorder, posttraumatic stress disorder, personality disorder, depression, and anxiety. (AR 139.) According to Plaintiff, her mental disorders affect her memory and ability to concentrate, get along with others, handle stress, and handle changes in her routine. (AR 161-62.) She testified that she experiences flashbacks and nightmares multiple times per week. (AR 3651.) She also reported that her depression causes her to skip eating for days at a time. (AR 158.)
In 2019, Plaintiff filed an application for supplemental security income. (AR 123.) The application was denied initially and on reconsideration. (AR 30, 42.) Plaintiff requested a hearing before an administrative law judge (ALJ), and a hearing was held in September 2020. (AR 73, 3643-62.)
After the hearing, the ALJ issued a written decision following the five-step process for determining whether a person is disabled. 20 C.F.R. § 416.920. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her application date. (AR 17.) At step two, the ALJ found that Plaintiff had three severe impairments: bipolar disorder, anxiety disorder, and posttraumatic stress disorder. (AR 17.) At step three, the ALJ found that Plaintiff did not have an impairment or a combination of impairments that met or medically equaled the severity of a listed impairment. (AR 18.) Between steps three and four, the ALJ found that Plaintiff had the residual functional capacity to perform a full range of work at all exertional levels but with certain non-exertional limitations. (AR 20.) At step four, the ALJ found that Plaintiff had no past relevant work. (AR 23.) At step five, the ALJ found that there were at least three jobs available in the national economy that Plaintiff could perform. (AR 24.) The ALJ therefore concluded that Plaintiff was not disabled. (AR 24-25.)
The Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. (AR 1-3.) This lawsuit followed.
Legal Standard
The Commissioner's decision will be affirmed if it is supported by substantial evidence and free of legal error. White v. Kijakazi, 44 F.4th 828, 833 (9th Cir. 2022) (quoting Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996)). “Substantial evidence . . . is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Smartt v. Kijakazi, 53 F.4th 489, 494 (9th Cir. 2022) (alteration in original) (quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)).
Discussion
I. Evaluation of the Social Security Listings
Plaintiff argues that the ALJ erred in evaluating whether her mental disorders meet or equal a listed impairment. The Court finds that any such error was harmless.
At step three, the ALJ must determine whether the claimant's impairments meet or medically equal a listed impairment; if so, then the ALJ must find the claimant disabled. 20 C.F.R. § 416.920(a)(4)(iii). Relevant here are the listings for depressive, bipolar, and related disorders (12.04), anxiety and obsessive-compulsive disorders (12.06), and trauma-and stressor-related disorders (12.15). Each listing has three paragraphs-labeled A, B, and C-which set forth the criteria to meet the listing. To establish disability, the claimant's “mental disorder must satisfy the requirements of both paragraphs A and B, or the requirements of both paragraphs A and C.” 20 C.F.R. Pt. 404, subpt. P, appx. 1 § 12.00A.2.
In this case, the ALJ explained in some detail why Plaintiff did not satisfy the B criteria. (AR 18-20.) The ALJ's discussion of the C criteria, however, consisted of two sentences: “The undersigned has also considered whether the ‘paragraph C' criteria are satisfied. In this case, the evidence fails to establish the presence of the ‘paragraph C' criteria.” (AR 20.) Plaintiff argues that this boilerplate finding shows the ALJ did not adequately consider the C criteria, and that that omission constitutes reversible error. The Court disagrees.
In general, “[a] boilerplate finding is insufficient to support a conclusion that a claimant's impairment does not [meet or equal a listing].” Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). However, a boilerplate finding at step three is not error if the ALJ's findings at other steps show that the claimant does not meet the listing. Id. at 513-14; see Fischer-Ross v. Barnhart, 431 F.3d 729, 734 (10th Cir. 2005) (holding that “remand for a more thorough discussion of the listings” is not required “when confirmed or unchallenged findings made elsewhere in the ALJ's decision confirm the step three determination under review”). If the ALJ's decision does not otherwise justify a boilerplate step-three finding, then the ALJ has erred. Such an error is subject to harmless-error review, Ford v. Saul, 950 F.3d 1141, 1157 (9th Cir. 2020), and the claimant bears the burden of establishing that the ALJ's error was harmful, Shinseki v. Sanders, 556 U.S. 396, 409 (2009). To show harmful error, the claimant must identify evidence showing that he could satisfy all the listing's criteria. See Burch v. Barnhart, 400 F.3d 676, 682-83 (9th Cir. 2005) (faulting the claimant for “not set[ting] forth any evidence which would support the diagnosis and findings of a listed impairment”).
The harmful-error burden arises from the fact that the claimant has the burden of proof at step three, Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009), and the claimant satisfies that burden only if his impairment “meet[s] all of the specified medical criteria,” Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
In this case, Plaintiff fails to establish harmful error. A claimant's mental disorder satisfies the C criteria if (1) the claimant relies, “on an ongoing basis, upon medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s), to diminish” her symptoms, and (2) despite her diminished symptoms, the claimant has “achieved only marginal adjustment,” meaning she has “minimal capacity to adapt to changes in [her] environment or to demands that are not already part of [her] daily life.” 20 C.F.R. Pt. 404, subpt. P, appx. 1 § 12.00G.2. Plaintiff argues that she relies on psychosocial supports to diminish her symptoms, because she lived in a rehabilitation facility from May 2020 to October 2020 and had diminished symptoms during that time. However, as the Commissioner points out, the record does not support Plaintiff's claim that she received inpatient treatment during that entire period. (See AR 3576 (on June 18, Plaintiff was living in an apartment); AR 3570 (on July 2, Plaintiff was living at the Viscount Suites); AR 728 (on July 17, Plaintiff was discharged to the hotel where her mother lived); AR 3560 (on August 14, Plaintiff was living in a hotel).)
In her reply brief, Plaintiff argues that even if she was not living in a structured treatment facility, her outpatient methadone treatment at Community Medical Services “roughly parallels” the types of psychosocial supports that could satisfy the first criterion. The Court disagrees. The regulations list examples of psychosocial supports, and they all differ in kind from Plaintiff's medical appointments. 20 C.F.R. Pt. 404, subpt. P, app. 1 § 12.00D.1. (“[F]amily members administer your medications, remind you to eat, shop for you and pay your bills, or change their work hours so you are never home alone.”; “You receive comprehensive ‘24/7 wrap-around' mental health services . . . .”; “You receive assistance from a crisis response team, social workers, or community mental health workers who help you meet your physical needs.”). Thus, Plaintiff has not shown that she could satisfy the first C criterion.
Nor has Plaintiff shown that she could satisfy the second criterion, i.e., that despite her diminished symptoms, she has achieved only marginal adjustment. Plaintiff ignores this requirement, and that omission precludes a finding of harmful error. See Mannion v. Comm'r Soc. Sec. Admin., No. 17-cv-00008, 2017 WL 5598810, at *4 (D. Or. Nov. 21, 2017) (“Absent identification of some medical evidence by Plaintiff that he satisfies all the listing criteria-including the durational requirement-the ALJ's failure to discuss it is harmless error at best.” (citations omitted)).
In any event, the record contains evidence indicating that Plaintiff does not satisfy the requirement. First, Plaintiff apparently has more than minimal capacity to adjust to changes in her environment. She traveled from Tennessee to Tucson for the gem show and decided to remain after the show was over. (AR 3442.) She has adjusted to various living arrangements within Tucson, including an inpatient drug-treatment facility, her mother's house, her brother's house, and a friend's apartment. (AR 314, 447, 478, 669.) The record indicates that it was Plaintiff's decision to leave the treatment facility's structured environment to live with her brother, and that she adjusted to the change despite being stressed that all her friends used drugs. (AR 657, 683.) Second, Plaintiff apparently can adjust to demands that are not already part of her daily life. Notably, one of her providers remarked that she is capable of taking care of herself when she is not on drugs. (AR 2981.) In addition, Plaintiff voluntarily enrolled herself in drug treatment after moving to Arizona. (AR 387, 447.) Also, in late 2020, she indicated that she was excited she was having another child. (AR 3547.)
Given the foregoing, the Court finds that the ALJ's boilerplate finding was, at most, harmless error.
II. Evaluation of Plaintiff's Symptom Testimony
Plaintiff contends that the ALJ erred in discounting her symptom testimony. The Court agrees.
Plaintiff reported that she experiences panic attacks, anxiety, and anger when she is around others. (AR 156.) She reported that she uses sticky notes to remind herself to take care of personal needs and to take her medications, and that she has difficulty with her concentration and ability to handle stress and changes in her routine. (AR 158, 161-62.) At her hearing, she testified that she experiences flashbacks and nightmares multiple times per week, that she has delusions caused by poor sleep, and that she needs to nap during the day two or three times per week. (AR 3651-53.) The parties agree that the ALJ could discount these reports only for “specific, clear and convincing reasons.” Smith v. Kijakazi, 14 F.4th 1108, 1112 (9th Cir. 2021) (quoting Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014)). This standard is satisfied so long as “the ALJ's rationale is clear enough that it has the power to convince.” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022).
In this case, the ALJ claimed that Plaintiff's testimony was “inconsistent” with her “treatment-seeking history, diagnostic test results, clinical signs, reported symptoms, medications and other prescribed treatment.” (AR 21.) Each of these can be an appropriate reason for rejecting a claimant's symptom testimony. See Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (failure to seek treatment); Smartt, 53 F.4th at 497-500 (inconsistent medical findings; conservative treatment); Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017) (inconsistent self-reports). Here, though, after claiming that Plaintiff's testimony was inconsistent, the ALJ merely summarized some of Plaintiff's treatment records without linking the records to specific testimony, and without explaining how the records showed conservative treatment, inconsistent clinical findings, etc. As a result, it is not clear what testimony was unpersuasive, or why it was unpersuasive. Thus, the ALJ erred. See Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (“[P]roviding a summary of medical evidence in support of a residual functional capacity finding is not the same as providing clear and convincing reasons for finding the claimant's symptom testimony not credible.”); Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (“[T]he ALJ must specifically identify the testimony she or he finds not to be credible and must explain what evidence undermines the testimony.” (citation omitted)).
As noted, the ALJ found that Plaintiff's “treatment-seeking history” was inconsistent with her testimony. An ALJ may not discount testimony on this ground without “considering possible reasons [for why the claimant] may not . . . seek treatment consistent with the degree of his or her complaints,” and the ALJ must provide a written explanation of “how” those reasons were considered. SSR 16-3p, 2017 WL 5180304, at *9-10 (Oct. 25, 2017). Here, the decision does not reflect that the ALJ considered possible reasons for why Plaintiff did not seek more treatment. This error is glaring, considering that “it is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation.” Garrison, 759 F.3d at 1018 n.24 (quoting Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996)).
Similarly, the ALJ does not explain how Plaintiff's “medications and other prescribed treatment” conflict with Plaintiff's testimony. Did the ALJ mean that Plaintiff's psychiatric symptoms were controlled through treatment? See Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (noting that impairments are not disabling if they are “controlled effectively with medication”). Or did the ALJ mean that Plaintiff's psychiatric treatment was so minimal and non-intrusive that Plaintiff's symptoms could not have been as severe as alleged? See Tommasetti v. Astrue, 533 F.3d 1035, 1039-40 (9th Cir. 2008) (discounting the claimant's testimony about severe pain because he “responded favorably to conservative treatment”). The ALJ did not explain. Nor is an explanation implicit in the ALJ's summary of the evidence.
As for the objective medical evidence, it is unclear what “diagnostic test results” undermined Plaintiff's testimony, as the ALJ cited none. As for Plaintiff's “clinical signs,” the evidence cited by the ALJ reflects a mixed bag. The ALJ correctly observed that, on numerous occasions, Plaintiff's mental status was largely unremarkable. (See AR 291-92 (on May 2, 2019, Plaintiff's mental status was normal except for a depressed mood); AR 3322 (on August 30, 2019, Plaintiff's mental status was normal except for a sad mood).) However, the ALJ also cited examinations that support Plaintiff's testimony. (See AR 3368 (on February 22, 2020, Plaintiff had an angry mood, depressive thought content, fair insight, and poor judgment); AR 3406 (on February 23, 2020, Plaintiff presented as confused, disoriented, and anxious with poor insight and judgment); AR 732 (on July 11, 2020, Plaintiff had a depressed mood, poor concentration and attention, impaired immediate memory, and poor judgment).) These differing presentations are consistent with the nature of mental disorders, which can wax and wane in severity. See Garrison, 759 F.3d at 1017. To be sure, when there is diverging evidence, the ALJ's rational interpretation of it must be upheld. Burch, 400 F.3d at 679. As far as the Court can see, though, the ALJ here offered only a summary, not an interpretation.
The Commissioner contends that the ALJ discounted Plaintiff's testimony based in part on her daily activities. The Court disagrees. While the ALJ summarized activities that could be inconsistent with aspects of Plaintiff's testimony, the ALJ never indicated that there was an inconsistency, or that such inconsistency undermined Plaintiff's testimony. Again, providing a summary is not the same as providing reasons. Brown-Hunter, 806 F.3d at 494. The Commissioner also contends that the ALJ relied on the state-agency physicians' opinions regarding Plaintiff's mental limitations. The ALJ gave the opinions only “partial weight” because they were an “underestimate” of Plaintiff's true limitations. (AR 23.) Even if substantial evidence supports the ALJ's reliance on these opinions, the Court disagrees that the opinions are a clear and convincing reason for discounting Plaintiff's testimony. The opinions do not undermine all aspects of Plaintiff's testimony, and, as just noted, they were only partially persuasive. See Trevizo v. Berryhill, 871 F.3d 664, 682 (9th Cir. 2017) (holding that while substantial evidence supported some of the ALJ's reasoning, that reasoning still was not clear and convincing).
As indicated above, the ALJ listed several categories of evidence that were supposedly inconsistent with Plaintiff's testimony. (AR 21.) Plaintiff's daily activities were not included in that list.
The ALJ failed to provide clear and convincing reasons for discounting Plaintiff's symptom testimony. This error was harmful because Plaintiff's alleged panic attacks, anxiety, anger, and need for daytime naps would make her either off-task too often or absent from work more than once per month, and the vocational expert testified that those circumstances would result in termination. (AR 3659-61.)
Conclusion
The Court finds that (1) the ALJ's boilerplate step-three finding was, at most, harmless error, but that (2) the ALJ erred in discounting Plaintiff's symptom testimony. Therefore, It is recommended that the Commissioner's decision be reversed, and that this matter be remanded back to the agency for a new hearing and decision.
This recommendation is not immediately appealable to the Ninth Circuit Court of Appeals. The parties have 14 days from the date of service of this recommendation to file specific written objections with the district court. Fed.R.Civ.P. 72(b)(2). The parties have 14 days to file responses to objections. Id. The parties may not file replies absent the district court's permission. The failure to file timely objections may result in the waiver of de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
The Clerk of Court is directed to terminate the referral of this matter. Filed objections should bear the following case number: CV-22-00051-TUC-JCH.