Opinion
2:21-cv-00337-HL
05-23-2022
MARLA C.,[1]Plaintiff, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION Defendant.
FINDINGS AND RECOMMENDATION
ANDREW HALLMAN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Maria C. brings this action under the Social Security Act (the "Act"), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security (the "Commissioner"). The Commissioner denied Plaintiffs application for Disability Insurance Benefits ("DIB") and Social Security Income ("SSI") under Title II of the Act. 42 U.S.C. § 401 et seq. For the following reasons, this case should be REVERSED and REMANDED for calculation and payment of benefits.
STANDARD OF REVIEW
42 U.S.C. § 405(g) provides for judicial review of the Social Security Administration's disability determinations: "The court shall have power to enter . . . a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted). The court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusion." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted); see also Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (holding that the court "must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation"). "[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quotation omitted).
BACKGROUND
I. Plaintiffs Application
Plaintiff alleges disability based on greater trochanteric bursitis; bursitis inflammation; labral tear; groin pain; chronic hip pain; high blood pressure; ascending aortic aneurysm and high cholesterol. Tr. 166. At the time of her amended alleged onset date, she was 52 years old. Tr. 20. She has a high school diploma and no past relevant work experience. Tr. 21.
Citations to "Tr." are to the Administrative Record. See ECF 9-1.
Plaintiff protectively applied for DIB on October 29, 2018, alleging an initial onset date of November 20, 2017. Tr. 14, 17. Her application was denied initially on February 19, 2019, and on reconsideration on August 19, 2019. Tr. 14. Plaintiff subsequently requested a hearing, which was held on August 13, 2020, before Administrative Law Judge ("ALJ") Katherine Weatherly. Tr. 22. Plaintiff appeared and testified at the hearing, represented by counsel; a vocational expert ("VE"), Ari Halpern, also testified. Tr. 13, 14. On August 26, 2020, the ALJ issued a decision denying Plaintiffs claim. Tr. 23. Plaintiff requested Appeals Council review, which was denied on January 5, 2021. Tr. 1. Plaintiff then sought review before this Court.
II. Sequential Disability Process
The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected ... to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).
The Commissioner has established a five-step process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. At step one, the Commissioner determines whether a claimant is engaged in "substantial gainful activity"; if so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b).
At step two, the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). A severe impairment is one "which significantly limits [the claimant's] physical or mental ability to do basic work activities[.]" 20 C.F.R. §§ 404.1520(c) & 416.920(c). If not, the claimant is not disabled. Yuckert, 482 U.S. at 141.
At step three, the Commissioner determines whether the impairments meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Id; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the analysis proceeds. Yuckert, 482 U.S. at 141. At this point, the Commissioner must evaluate medical and other relevant evidence to determine the claimant's "residual functional capacity" ("RFC"), an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations his impairments impose. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 416.945(b)-(c).
At step four, the Commissioner determines whether the claimant can perform "past relevant work." Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can work, he is not disabled; if he cannot perform past relevant work, the burden shifts to the Commissioner. Yuckert, 482 U.S. at 146 n. 5.
Finally, at step five, the Commissioner must establish that the claimant can perform other work that exists in significant numbers in the national economy. Id. at 142; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§404.1566,416.966.
III. The ALJ's Decision
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity after her alleged onset date of November 20, 2017, through her date last insured. Tr. 15.
At step two, the ALJ determined that Plaintiff has the following severe impairments: "ascending aortic aneurysm; ascending aorta dilation; right knee meniscus tear, status post surgery; right hip osteoarthritis; right hip femoroacetabular impingement; right trochanteric bursitis; hypertension; and lumbar spine degenerative disc disease." Tr. 17.
At step three, the ALJ determined that Plaintiffs impairments did not meet or medically equal the severity of a listed impairment. Tr. 17-18. The ALJ then assessed Plaintiff s residual functional capacity ("RFC"), finding that Plaintiff "had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except the claimant must avoid concentrated exposure to workplace hazards such as unprotected heights and heavy machinery due to the side effects of her medication." Tr. 17-18.
At step four, the ALJ found that Plaintiff did not have any past relevant work. Tr. 20.
But at step five-considering Plaintiffs age, education, work experience, and RFC-the ALJ found that a significant number of jobs existed in the national economy that Plaintiff could perform, including work as a Cashier 2, Counter attendant 3, and Assembler. Tr. 21. Thus, the ALJ concluded that Plaintiff is not disabled. Tr. 22.
DISCUSSION
Plaintiff contends that the ALJ committed four errors: (1) relying on the opinions of the state agency physicians in finding that Plaintiff has a light exertional RFC; (2) failing to provide specific, clear and convincing reasons for rejecting Plaintiffs subjective symptom testimony; (3) failing to provide specific, germane reasons to reject the testimony of the lay witness, R. Gillen; and (4) failing to include all supported functional limitations when considering Plaintiffs RFC. PL's Opening Br. 13-27, ECF 16. According to Plaintiff, if this Court credits as true both her testimony and the lay witness testimony of R. Gillen, then she "is limited to no greater than sedentary exertion, and she is disabled. . . ." Id. at 16. Accordingly, Plaintiff asks this Court to remand for an award of benefits. Id. at 23-24.
Plaintiff does not argue that the ALJ's reliance on state agency physicians or failure to include all supported limitations would justify a remand for payment of benefits. See PL's Opening Br. 23-24. As such, this Court limits the discussion of the credit-as-true standard to the ALJ's errors concerning Plaintiffs testimony and R. Gillen's lay witness statement.
In response, the Commissioner has filed a motion for remand and agrees that the ALJ's decision was not supported by substantial evidence but argues that a remand is the appropriate remedy. Def Mot. Remand 2, ECF 20. The Commissioner concedes that the ALJ erred in each of the respects that Plaintiff identified. Id. at 6. The Commissioner argues, however, that the case should be remanded for further proceedings because evidentiary conflicts exist in the record and "further proceedings would be useful" to resolve ambiguities in the record. Id. at 2. For the following reasons, this Court agrees with Plaintiff and recommends that this case be remanded for calculation and payment of benefits.
I. Applicable Law
Within the Court's discretion under 42 U.S.C. § 405(g) is the "decision whether to remand for further proceedings or for an award of benefits." Holohan v. Massanri, 246 F.3d 1195, 1210 (9th Cir. 2001) (citation omitted). Although a court should generally remand to the agency for additional investigation or explanation, a court has discretion to remand for immediate payment of benefits. Treichler v. Comm 'r o/Soc. Sec. Admin., 775 F.3d 1090, 1099-1100 (9th Cir. 2014). The issue turns on the utility of further proceedings. A court may not award benefits punitively and must conduct a "credit-as-true" analysis on evidence that has been improperly rejected by the ALJ to determine if a claimant is disabled under the Social Security Act. Strauss v. Comm 'r of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
"In the Ninth Circuit, the 'credit-as-true' doctrine is 'settled' and binding on this Court." Treasure L. v. Saul, No. 6:19-CV-583-SI, 2020 WL 3033669, at *3 (D. Or. June 5, 2020) (quoting Garrison v. Colvin, 759 F.3d 995, 999 (9th Cir. 2014)). Generally, where "(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand," the district court should remand for payment of benefits. Garrison, 759 F.3d at 1020.
Both parties advance a different formulation of this three-part test. Plaintiff asserts that this Court should apply the "Smolen Test." PL's Opening Br. 24-25 (citing Harmon v. Apfel, 211 F.3d 1172, 1178-79 (9th Cir. 2000)). In contrast, the Commissioner relies on the "Triechler Test," Def Mot. Remand 4-5 (citing Treicher, 775 F.3d at 1090), which Plaintiff in reply asserts is not binding. PL's Reply Br. 4-6, ECF 21. This Court need not parse through the differences in, or authority for, the respective tests advanced by the parties. Subsequent decisions from the Ninth Circuit confirm that three-part credit-as-true test set forth in Garrison is the settled law in this Circuit. See, e.g. Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 2017); Trevizo v. Berryhill, 871 F.3d 664, 682 (9th Cir. 2017); Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017); see also Leza v. Kijakazi, No. 21-16079, 2022 WL 819782, at *3 (9th Cir. Mar. 17, 2022) (memorandum); Cruz v. Kijakazi, No. 20-16651, 2021 WL 5357231, at *1 (9th Cir. Nov. 17, 2021) (memorandum).
In conducting this analysis, the district court first determines whether the ALJ made a legal error and then reviews the record as a whole to determine whether the record is fully developed, whether the record is free from conflicts and ambiguities, and if there is any useful purpose in further proceedings. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015). Only if the record has been fully developed and there are no outstanding issues left to be resolved does the district court consider whether the ALJ would be required to find the claimant disabled on remand if the improperly discredited evidence were credited as true. Id. If so, the district court can exercise its discretion to remand for an award of benefits. Id.
Even where all the requisites are met, however, a court may still remand for further proceedings "when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled[.]" Garrison, 759 F.3d at 1021. Serious doubt can arise when there are "inconsistencies between the claimant's testimony and the medical evidence," or if the Commissioner "has pointed to evidence in the record the ALJ overlooked and explained how that evidence casts serious doubt" on whether the claimant is disabled under the Act. Dominguez, 808 F.3d at 407 (citing Burrell v. Colvin, 775 F.3d 1133,1141 (9th Cir. 2014) (internal quotation marks omitted)).
II. Analysis
The parties generally agree that if Plaintiff s impairments limit her to sedentary exertion, then she is disabled according to the Medical Vocational Guidelines. See 20 C.F.R. Part 404, Subpt P, App 2, Rules 201.12, 201.14 (providing that if an individual is closely approaching advanced age [50-54], is a high school graduate or more, and either has unskilled work experience or cannot transfer skills, that individual is disabled if they are limited to sedentary work); PL's Opening Br. 5-6; Def Mot. Remand 7-8. Accordingly, this Court's analysis of the credit-as-true standard focuses on the ALJ's finding that Plaintiff was able to perform more than sedentary work.
A. The record was fully developed, and further proceedings are unnecessary.
This Court finds that the record concerning Plaintiffs ability to perform anything more than sedentary work is fully developed. At the hearing, Plaintiff testified that her primary physical issue is hip pain, which prevents her from standing for long periods of time and requires her to recline throughout the day. Tr. 33-37; 252. This was confirmed by the third-party function report submitted by her partner, R. Gillen. Tr. 245-52. Plaintiff also submitted three years' worth of medical records concerning her various conditions. Tr. 256-426. Moreover, the VE testified that an individual with Plaintiffs alleged limitations-specifically, her need to sit and recline, and her inability to lift more than 8 to 10 pounds-could not perform anything more than sedentary work. Tr. 48-50. Thus, the record was fully developed concerning Plaintiffs ability to perform only sedentary work.
In arguing that the case should be remanded, the Commissioner does not identify any specific areas where the record was not fully developed or ambiguities in the record that must be resolved. The Commissioner argues that the ALJ's treatment of the state agency physician's recommendations "indicates] that ambiguity exists that must be reexamined on remand." Def Mot. Remand 7. The Commissioner also argues that additional severe impairments of hypertension and degenerative disc disease, which "cast doubt on the previous findings of the state agency physicians," must be re-evaluated on remand. Id. at 7. Finally, the Commissioner argues that the "highly fact specific evaluation of the evidence and determination of residual functional capacity should be left to the ALJ." Id. at 8.
The Commissioner's position on the ALJ's error concerning the state agency physicians' opinions is unclear. The Commissioner concedes that the ALJ erred with respect to her "review of the medical evidence," which is presumably responsive to Plaintiffs arguments concerning the state agency physicians' opinions. Def. Mot. Remand 6. However, the Commissioner disputes Plaintiffs characterization of the ALJ's reliance on those opinions. Id. at 7. The Commissioner also fails to address Plaintiffs specific argument concerning the state agency physician's errant reliance on the prior ALJ decision, which was not yet final. PL's Opening Br. 17. It is therefore unclear what the Commissioner asserts that the ALJ should reexamine on remand.
The Court does not find the Commissioner's arguments persuasive. Binding precedent and the principles animating the credit-as-true standard make remand inappropriate:
Although the Commissioner argues that further proceedings would serve the 'useful purpose' of allowing the ALJ to revisit the medical opinions and testimony that she rejected for legally insufficient reasons, our precedent and the objectives of the credit-as-true rule foreclose the argument that a remand for the purpose of allowing the ALJ to have a mulligan qualifies as a remand for a 'useful purpose' under the first part of credit-as-true analysis.Garrison, 759 F.3d at 1021; see also Benecke, 379 F.3d at 595 ("Allowing the Commissioner to decide the issue again would create an unfair 'heads we win; tails, let's play again' system of disability benefits adjudication."). The Commissioner is not entitled to a remand solely for the purposes of re-evaluating medical opinions and testimonial evidence that were improperly considered in the first instance. The Court therefore finds that the record is fully developed, and further proceedings would be unnecessary.
B. The ALJ has provided legally insufficient reasons for rejecting the evidence.
The Commissioner agrees with Plaintiff that the ALJ erred in her "review of the medical evidence [and] the subjective testimony (both of herself and lay testimony) . . . ." Def Mot. Remand 6. Accordingly, Plaintiff has demonstrated that the ALJ provided legally insufficient reasons for rejecting the evidence in this case.
C. Plaintiff's testimony, if credited, would require a finding that she is disabled.
The Commissioner does not challenge Plaintiffs assertion that her testimony, if credited, would require a finding that she is disabled. Def. Mot. Remand 5 (asserting that this Court should not reach the issue given the purported ambiguities in the record). Nor could he. Evidence from Plaintiff and R. Gillen demonstrated that Plaintiff was limited in her ability to stand for prolonged periods and was unable to life more than 8 to 10 pounds. Tr. 33-37; 252; 245-52. The VE testified that these limitations would not be conductive to anything more than sedentary work, Tr. 47-48, and the parties agree that if Plaintiff is limited sedentary work, then she is disabled based on an application of the Medical Vocational Guidelines. As such, Plaintiffs testimony, when credited as true, requires a finding that she is disabled.
D. This Court has no serious doubts as to whether Plaintiff is disabled.
Finally, the Commissioner argues that serious doubts remain as to whether Plaintiff is disabled. Def Mot. Remand 5. The Court disagrees. The Commissioner has not pointed to any evidence "that the ALJ overlooked and explained how that evidence casts into serious doubt the claimant's claim to be disabled." See Dominguez, 808 F.3d at 407. Instead, the Commissioner argues that the existing record should be reconsidered and new evidence could be developed. Def. Mot. Remand 6-7. Given the straightforward determination whether Plaintiff can perform more than sedentary work-and after crediting her testimony as true-this Court has no serious doubts as to whether she is disabled.
RECOMMENDATION
This case should be REVERSED and REMANDED for calculation and payment of benefits.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
A party's failure to timely file objections to any of these findings will be considered a waiver of that party's right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment.