Opinion
CV-20-0323-TUC-JCH (LCK)
12-08-2021
Tammy Meixner, Plaintiff, v. Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable Lynnette C. Kimmins United States Magistrate Judge
Plaintiff Tammy Meixner brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision by the Commissioner of Social Security (Commissioner). Plaintiff filed an opening brief, Defendant responded, and Plaintiff replied. (Docs. 24, 27, 28.) Pursuant to the Rules of Practice of the Court, this matter was referred to Magistrate Judge Kimmins for Report and Recommendation. Based on the pleadings and administrative record, the Magistrate Judge recommends the District Court, after its independent review, remand for the payment of benefits.
FACTUAL AND PROCEDURAL HISTORY
Meixner was born in December 1968 and was 47 years of age at the alleged onset date of her disability. (Administrative Record (AR) 201.) She had worked as an assistant finance director for the state since 1998. (AR 214.) Meixner filed an application for Disability Insurance Benefits (DIB) in September 2016. (AR 201.) She alleged disability from August 8, 2016. (Id.) Meixner's application was denied upon initial review (AR 95) and on reconsideration (AR 115). A hearing was held on May 8, 2019. (AR 39-79.) The ALJ then found Meixner was not disabled. (AR 16-30.) The Appeals Council denied Meixner's request for review of that decision. (AR 1.)
The ALJ found that Meixner had severe impairments of anorexia nervosa, depression, anxiety, OCD, PTSD, history of hypothyroidism, and degenerative disc disease. (AR 19.) The ALJ determined Meixner had the Residual Functional Capacity (RFC) to perform light work limited to simple routine work requiring only simple work-related decisions or simple instructions, with few changes in the work setting, and no public contact. (AR 21.) The ALJ concluded at Step Five, based on the testimony of a vocational expert, that Meixner could perform the jobs of housekeeper, fast food worker, and janitor, which existed in significant numbers in the national economy. (AR 29.)
STANDARD OF REVIEW
The Commissioner employs a five-step sequential process to evaluate DIB claims. 20 C.F.R. § 404.1520; see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To establish disability the claimant bears the burden of showing she (1) is not working; (2) has a severe physical or mental impairment; (3) the impairment meets or equals the requirements of a listed impairment; and (4) claimant's RFC precludes her from performing her past work. 20 C.F.R. § 404.1520(a)(4). At Step Five, the burden shifts to the Commissioner to show that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant “disabled” or “not disabled” at any point in the five-step process, she does not proceed to the next step. 20 C.F.R. § 404.1520(a)(4).
“The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v.Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to deny benefits only “when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is so because the ALJ “and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019 (quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner's decision, however, “cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence that supports as well as detracts from the Commissioner's conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).
DISCUSSION
Meixner argues the ALJ committed two errors: (1) she failed to provide clear and convincing reasons for rejecting her symptom testimony; and (2) she rejected the opinion of treating physicians without specific and legitimate reasons.
Symptom Testimony
Meixner argues the ALJ failed to provide clear and convincing reasons to reject her symptom testimony. In general, “questions of credibility and resolution of conflicts in the testimony are functions solely” for the ALJ. Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)). However, “[w]hile an ALJ may certainly find testimony not credible and disregard it . . . [the court] cannot affirm such a determination unless it is supported by specific findings and reasoning.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884-85 (9th Cir. 2006); Bunnell v. Sullivan, 947 F.2d 341, 345-346 (9th Cir. 1995) (requiring specificity to ensure a reviewing court the ALJ did not arbitrarily reject a claimant's subjective testimony); SSR 16-3p. “To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007).
Initially, “the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment ‘which could reasonably be expected to produce the pain or other symptoms alleged.'” Id. at 1036 (quoting Bunnell, 947 F.2d at 344). The ALJ found Meixner had satisfied part one of the test by proving impairments that could produce the symptoms alleged. (AR 22.) Next, “unless an ALJ makes a finding of malingering based on affirmative evidence thereof, he or she may only find an applicant not credible by making specific findings as to credibility and stating clear and convincing reasons for each.” Robbins, 466 F.3d at 883; Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003) (holding an ALJ can reject claimant testimony if he finds evidence of malingering). The ALJ did not make a finding of malingering. Therefore, to support her discounting of Meixner's assertions regarding the severity of her symptoms, the ALJ had to provide clear and convincing, specific reasons. See Robbins, 466 F.3d at 883.
Meixner completed Function Reports in September 2016 and June 2017, which were highly consistent with one another. She reported that she typically could do one or two things per day with a 3-4-hour nap in the afternoon; if she had not slept well the night before, she would rest and sleep the whole next day. (AR 225, 254.) Along with her husband, she took care of their dogs and a horse (that was boarded); she walked the dog daily, visited the horse two to three times per week, and would ride the horse every other month. (AR 225, 227, 254, 257.) Meixner performed her own personal care and took care of her own simple food that did not require preparation, such as crackers, granola, protein bars, and Ensure. (AR 226, 255.) She did laundry weekly, would occasionally do an outside task, and pick up the house. (AR 227, 256.) She could drive and go out alone if the location was familiar and not too crowded, but not late in the day due to fatigue and stress. (AR 227, 228, 256.) Her husband completed most errands, but she would join him. (AR 227, 256.) She spent time reading, watching TV, walking, and visiting her horse. (AR 228, 257.) The only person she spent time with in-person was her husband; she would talk to family and friends on the phone. (AR 228, 257.) She indicated limitations in lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, talking, stair climbing, memory, completing tasks, concentration, understanding, and following instructions. (AR 229, 258.) She could walk about 1 mile before resting. (AR 229, 258.) She could follow written instructions but had to write down spoken instructions; she typically could pay attention for 30 minutes but had no ability to concentrate on some conversations. (AR 229, 258.) She was unable to handle stress and changes in daily routine due to anxiety. (AR 230, 259.) At the hearing, in May 2019, Meixner testified that she stopped working because she had difficulty concentrating and problems retaining the information to do the job she had been doing for several years. (AR 49.) She was falling asleep at work, experiencing anxiety and depression, and her irritable bowel syndrome (IBS) was causing her to spend a lot of time in the bathroom. (AR 60-61.) She reduced to working three days per week, but her symptoms worsened. (AR 62.) She believed the cognitive and memory problems stemmed from emotional issues. (AR 51.) She made written notes because she would forget daily tasks and could not focus for an entire movie or may lose the thread of a conversation. (AR 63-64.) She continued to experience depression, including several suicidal thoughts per week, anxiety, and paranoia. (AR 65-66.) She was taking magnesium, B-2, Imitrex, clonazepam, estradiol, ibuprofen, and trazodone. (AR 53-54.) In a good month, she would have no headache approximately 10 days, a severe migraine 6 or 7 days, and a dull headache the other days. (AR 54, 59.) The migraines lasted two to three days without medication; Imitrex could resolve it within a day but caused stomach pain. (AR 59.) Her medication caused substantial fatigue. (AR 55.) She testified that she could sit or stand for one or two hours, and could walk for one hour. (AR 56.) Meixner stated that she was unable to focus for an eight-hour workday; would be off task “a lot” of the time; would be unable to work at least three days a week due to depression; and would be unable to complete a full workday because of her need to nap. (AR 65-66, 68-69.) She reported cleaning and working in the garden, but not preparing meals. (AR 57.) On a typical day, she tried to accomplish at least one thing but slept for approximately four hours in the afternoon. (AR 57.) She denied grocery shopping but stated she would go to Target. (AR 58.) Other than doctor appointments or a family visit for special occasions, she stayed close to home. (AR 58-59.) She reported her daily fatigue as consistently an 8 or 9 out of 10, and no medical intervention had helped. (AR 68-69.) The medications she tried for IBS had an adverse effect, and she experienced daily diarrhea, constipation, abdominal pain, cramping, and nausea. (AR 69-70.)
The ALJ found that Meixner's testimony about her limitations was not fully consistent with the medical evidence or other record evidence. (AR 22.) First, the ALJ noted that Meixner's treatment was not what would be expected for chronic fatigue. (AR 23.) The ALJ did not identify what she considered to be “the expected treatment, ” and “the CDC has made it clear that no definitive treatment for CFS exists.” Reddick v. Chater, 157 F.3d 715, 727-28 (9th Cir. 1998). Neither the ALJ nor Defendant cited any record evidence that Meixner failed to seek or follow any treatment advice of her doctors related to CFS. Therefore, this is not a clear and convincing reason to discount Meixner's symptom testimony. Cf. Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (noting that it is illogical to discount symptom testimony for failure to seek treatment where treatment is not likely to be successful).
Although chronic fatigue syndrome was consistently diagnosed by Meixner's treating physicians, the ALJ did not find it to be a severe impairment at Step 2. In fact, she did not even mention it in that portion of her decision.
Second, the ALJ found that “while the claimant's history of mental health treatment supports the conclusion that she has work related restrictions, the record does not establish limitations greater than found in this decision.” (AR 26.) The RFC limited Meixner to simple work, with few changes in setting, and no public contact. (AR 21.) Meixner testified to limitations related to her mental health that went beyond the limitations included by the ALJ. Specifically, she testified that she stopped working because she was unable to concentrate and had cognitive problems likely due to emotional problems. Additionally, to the extent Meixner's fatigue arose, in some part, due to her mental health impairments (or related medications), it led to a daily multi-hour nap. And there were days when she did nothing but rest and sleep due to fatigue and depression. The ALJ's discussion of Meixner's mental health did not offer clear and convincing reasons to discount this testimony. Rather, she offered a partial summary of the record related to Meixner's mental health treatment followed by a conclusory finding that she was only as limited as the RFC.
The ALJ initially stated that there was little evidence of mental health treatment in the record. (AR 24.) However, she went on to list the various treatment sought by Meixner over the course of several years. (Id.) That included seeing numerous different providers and consistently taking psychotropic drugs. (Id.) The ALJ also cited objective testing that did not fully substantiate Meixner's assertion of deficiencies in the specific categories of memory and concentration. While true, the same testing still evidenced poor cognition by Meixner. (AR 926-28.)
For the most part, the Court's discussion of the intersection between the objective medical evidence and Meixner's symptom testimony is at the end of this section. However, the Court mentions this one finding, here, because it is the only example when the ALJ directly linked an objective finding to specific symptom testimony.
Defendant argues that the ALJ discounted Meixner's mental health symptom testimony because the symptoms were well controlled with medication and responded to other treatment. Although Defendant cites numerous treatment records to support her argument (Doc. 27 at 18-19), the ALJ neither cited those records nor determined that Meixner's symptoms were controlled with medication or treatment. Defendant hangs her argument on the ALJ's mention that Meixner “continued treatment with Klonopin and Trazadone.” (AR 24.) That statement was a passing reference within the ALJ's partial summary of the mental health treatment in which Meixner had engaged over the years. The ALJ reached no conclusions based on that evidence and did not find it was a basis to discount Meixner's symptom testimony. In sum, the ALJ failed to provide clear and convincing reasons supported by substantial record evidence to discount Meixner's mental health symptom testimony.
Third, the ALJ determined that the treatment and records regarding Meixner's neck and back pain demonstrate that she is not precluded from performing light work. (AR 25.) In April 2016, Meixner reported taking over-the-counter pain medication. She also was treated with physical therapy and osteopathic manipulations. January 2019 x-rays revealed only mild degenerative disc space loss in the lower thoracic region; she was diagnosed with degenerative disc disease including lumbago without sciatica. The ALJ did not connect these findings with any of Meixner's testimony. In fact, Meixner offered no symptom testimony that she was unable to perform light exertion work for a period of time. Rather, her symptom testimony is focused on her inability to sustain any task for a full workday, due to fatigue and impaired cognition. Although Meixner may be able to perform at the exertional level of light work for some length of time, that is not a basis to reject any of her symptom testimony.
Fourth, the ALJ noted that Meixner's chronic fatigue diagnosis was inconsistent with her active lifestyle, which included grooming her horse, practicing yoga, and going for walks. (AR 23.) In a related finding, the ALJ determined that Meixner's activities of daily living were inconsistent with her complaints of disabling symptoms. (AR 25.) In particular, the ALJ cited Meixner's testimony that she prepared simple meals, executed light chores, washed laundry, attended weekly therapy, drove, shopped, read, talked on the phone, spent time with her husband, participated in yoga, managed her own finances, fed and walked their dogs and horse, and groomed and rode the horse. (Id.)
If a claimant's activities contradict her testimony, or the claimant spends a substantial portion of her day at activities that involve skills transferable to a work setting, those circumstances can form the basis for an adverse credibility determination. See Orn, 495 F.3d at 639. Here, the ALJ found that Meixner's activities of daily living were not consistent with her assertion of complete disability. The ALJ provided no further explanation as to how the particular activities she cited were inconsistent with Meixner's testimony that her symptoms prevented her from working. For example, being able to read, talk on the phone, spend time with her husband (with whom she lived), and manage her finances are not self-evidently incompatible with disabling symptoms.
The ALJ's summary of Meixner's activities lacks the nuance found in her actual testimony. Although Meixner testified to caring for her animals, the horse was boarded and did not require daily care, and her husband helped her in caring for the dogs. She usually visited the horse several times a week and rode the horse approximately six times per year. In late 2016, Meixner stated that she was practicing yoga but there is no evidence as to how frequently or for what period of time she did so. (AR 589.) Further, she used it as a coping mechanism for anxiety (along with walking and grooming her horse) and presumably she performed it at home on her chosen schedule. (Id.) Meixner was able to drive but only went to familiar, uncrowded locations, and she only left the house on a regular basis for medical or therapy appointments. She did not testify that she “shopped” as found by the ALJ. She stated that her husband grocery shopped and ran errands, and she sometimes accompanied him, and that she would go to Target (at unknown intervals). In her function report, Meixner stated that she got her own meals, but no preparation was required as she ate things like granola bars, crackers, and Ensure. (AR 226.) At the hearing, she confirmed that she did not “prepare” meals. (AR 57.) Meixner testified to doing some household chores, including laundry, but those are activities she could do on her own schedule as she was able. See Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014) (“The critical differences between activities of daily living and activities in a full-time job are that a person has more flexibility in scheduling the former than the latter, can get help from other persons . . ., and is not held to a minimum standard of performance, as she would be by an employer.”) (quoting Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012)). Critically, Meixner testified that she tried to do one activity each day but would then nap for approximately four hours. See Blau v. Astrue, 263 Fed.Appx. 635, 637 (9th Cir. 2008) (distinguishing claimant's activities of daily living because they did not require significant concentration or a substantial part of the day) (citing Vertigan v. Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001)). And some days, Meixner would rest for the entire day. See Id. (highlighting the sporadic nature of chronic fatigue) (citing Benecke v. Barnhart, 379 F.3d 587, 593-94 (9th Cir. 2004); Reddick, 157 F.3d at 722).
Overall, Meixner's activities of daily living were not inconsistent with her testimony of disabling symptoms. “One does not need to be ‘utterly incapacitated' in order to be disabled.” Vertigan, 260 F.3d at 1050 (finding driving, walking for exercise, and grocery shopping not incompatible with disability) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). There is not substantial evidence to support the ALJ's partial summary of Meixner's day to day activities. Overall, Meixner's symptom testimony is consistent in revealing that she rarely went beyond walking distance of her home, and when she did so it was primarily for medical appointments. To the extent she was able to perform activities in the house, such as self-care, pet care, or cleaning, those activities could be performed on her own schedule or not at all on days she was unable to complete them. See Fair, 885 F.2d at 603 (finding chores and shopping not comparable to a work environment, “where it might be impossible to periodically rest”). For these reasons, Meixner's activities of daily living, when viewed holistically, are not incompatible with her testimony of debilitating symptoms. This finding is not altered by the ALJ's note that treatment providers reported Meixner to be engaging, pleasant, healthy-appearing, cooperative, and oriented. (AR 25.) The ALJ did not explain why a pleasant demeanor and orientation to place are incompatible with Meixner's symptom testimony or disability, and the Court does not believe they alter its evaluation.
The ALJ's opinion also discusses some of the objective medical evidence of record; however, she failed to link the evidence directly to Meixner's symptom testimony. (AR 22-25.) Further, if the objective medical evidence fully explained a claimant's symptoms, then credibility would be irrelevant. Credibility factors into the ALJ's decision only when the claimant's stated symptoms are not substantiated by the objective medical evidence. SSR 16-3p. Thus, it is error for an ALJ to discount credibility solely because a claimant's symptoms are not substantiated by the medical evidence. Id.; Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). As this is the only remaining basis for the ALJ's rejection of Meixner's symptom testimony, it is insufficient to sustain it.
“The ALJ must specifically identify what testimony is credible and what testimony undermines the claimant's complaints.” Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999).The ALJ repeatedly failed to comply with this directive. In sum, the ALJ erred by failing to identify clear and convincing reasons, supported by substantial evidence, to reject Meixner's symptom testimony.
Medical Opinions of Drs. Mark Bessette and Bruce Coull
Meixner argues the ALJ erred in giving very little weight to treating physicians Drs. Bessette and Coull. In June 2016, Dr. Bessette diagnosed Meixner with chronic fatigue syndrome and an anxiety disorder, with symptoms of severe fatigue, abdominal pain and diarrhea, headaches, anxiety, cognitive dysfunction, and poor concentration. (AR 670, 672-73.) He determined she could not work. (AR 670, 672.) In June and August 2016, he found she could sit and stand for two hours in a workday and walk for one hour. (AR 673, 675.) In December 2016, Dr. Bessette noted that Meixner's symptoms were exacerbated by any job stress/pressure, her condition was permanent, and she could sit, stand, and walk up to one hour each. (AR 622-24.) In September 2017, and February and April 2019, he opined that her impairments prevented her from working an 8-hour day; she was limited by moderately-severe or severe pain, fatigue, headaches, and abdominal pain, which would cause her to be off-task at least 16% of a workday; and she would miss five or more days of work per month. (AR 917-18, 1074-75, 1086-87.) In April 2019, Dr. Bessette reported that Meixner experienced headaches, irritable bowel syndrome, and severe fatigue and pain 7 times per day/week/month, lasting two or more hours. (AR 1086.)
In June 2016, Dr. Coull diagnosed Meixner with memory difficulties, loss of concentration, inflammatory bowel disease, and mild cognitive impairment. (AR 640, 642.) He opined that Meixner was permanently unable to work, and she could sit and stand for two hours per day and walk for one hour per day. (AR 642-43.) In December 2016, Dr. Coull stated that Meixner “should not do tasks that require concentration, memory, or repetitive physical activity.” (AR 628.) At that time, he determined she could sit, stand, and walk intermittently for one hour each per day. (AR 629.) In November 2017 and April 2019, Dr. Coull opined that Meixner's impairments prevented her from working an 8-hour day; she was limited by moderately-severe headaches, fatigue, and cognitive impairments, which would cause her to be off-task 16-20% of a workday; and she would miss five or more days of work per month. (AR 924-25, 1088-89.) He noted that she experienced daily headaches and fatigue, and irritable bowel syndrome lasting two or more hours per occurrence. (AR 924, 1088.) In November 2017 and April 2019, Dr. Coull opined that Meixner could not work an 8-hour day, and could sit and stand/walk less than two hours each per day; her impairments were moderate to moderately-severe, causing her to be off-task from 11-20% of the time; and she would miss four or more workdays per month. (AR 624-25, 992-93, 1088-91.)
The opinion of a treating physician is generally afforded more weight than a non-examining or reviewing physician's opinion. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), as amended (Apr. 9, 1996). The opinions of Drs. Bessette and Coull were contradicted by other medical opinions in the record. Therefore, as agreed by the parties, to reject these treating physicians' opinions, the ALJ must provide “specific and legitimate reasons that are supported by substantial evidence.” Lester, 81 F.3d at 830-31; Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
The ALJ stated that he gave little weight to these treating physician opinions because of inconsistencies and the course of treatment was not as expected for disabling conditions. The Court does not evaluate these statements, standing alone, as they are too general for a substantive review. Instead, the Court interprets them as introductory statements to the ALJ's subsequent findings.
Although the ALJ stated that she relied upon “inconsistencies in the opinions, ” she did not identify any internal inconsistencies or inconsistencies between the two doctors' opinions. The ALJ noted that Dr. Coull documented daily headaches, while Dr. Bessette reported seven headaches per day/week/month lasting two or more hours. (AR 26.) These statements are not necessarily substantially inconsistent. More importantly, the ALJ did not identify them to be inconsistent or contrast them. And Defendant does not argue that the ALJ relied upon this as an inconsistency sufficient to discount either doctor's opinion. See supra note 3.
Defendant contends that the inconsistency upon which the ALJ relied were internal inconsistencies in each doctor's opinion. First, as to Dr. Coull, the ALJ summarized a portion of his opinion: “although the claimant has ‘no major restrictions,' she should not do tasks that require concentration, memory, or repetitive physical activity”; also, she would miss five or more days of work per month due to her impairments. (AR 26.)
Next, the ALJ found the doctors' reports as to the frequency of Meixner's headaches and the severity of her pain were not supported by her use of over-the-counter medication to manage these conditions. The ALJ is correct that, throughout most of the record, Meixner reported only using non-prescription medication for her headaches. However, when asked about dosing, Meixner reported that she used a substantial volume of these medications - two to three 800 milligram ibuprofen or 1000-1500 milligrams of Tylenol for headaches. (AR 1067.) As noted by the ALJ, Meixner also participated in physical therapy and osteopathic manipulations to treat her neck and back pain. (AR 24.) Further, Dr. Coull noted that Meixner's headaches were “under fair control at best, ” but Meixner was not inclined to take a lot of medicine and he would prefer she use only non-prescription pain relievers. (AR 928.)He had determined that Meixner could not handle the side effects of topiramate. (Id.) Because at least one of her doctors offered his rationale for not wanting Meixner to use prescription medication for her headaches, her failure to do so is not a specific, legitimate reason to discount the doctors' opinions. Cf. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (finding ALJ improperly discounted pain testimony based on claimant's conservative treatment because claimant explained lack of
Defendant argues that the doctor's finding of no major restriction is inconsistent with his subsequent two findings. If the ALJ believed those opinions were inconsistent, it was her responsibility to say so, and she did not. Instead, the ALJ offered “example[s]” of the inconsistencies she had identified, none of which are based on Dr. Coull making contradictory findings. (AR 26.) The Court cannot affirm the ALJ on a ground she did not rely upon in making her decision. Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (quoting Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001).
Second, the ALJ noted that Dr. Bessette reported seven headaches per day/week/month. (AR 26.) Defendant argues that, because the doctor did not specify the frequency, it was not possible to assess whether it was consistent with Plaintiff's testimony or Dr. Coull's report. (Doc. 27 at 12-13.) Inability to evaluate consistency is not the same as finding an inconsistency. Further, the ALJ did not discount Dr. Bessette's opinion for that reason or conclude it was inconsistent with other record evidence. pain medication was due to adverse side effects). Finally, at the time of the 2019 hearing, Meixner testified that she was taking prescription medication Imitrex for her headaches. (AR 54, 1073.) For these reasons, the ALJ's reliance on Meixner's use of non-prescription medication is not a specific, legitimate reason to discount the opinions of Drs. Coull and Bessette with respect to the limitations imposed by her pain and headaches. And that rationale is not supported by substantial record evidence.
Defendant argues that the ALJ properly relied on the fact that Meixner was able to successfully manage her pain with over-the-counter medication. (Doc. 27 at 14.) That is not an accurate representation of the ALJ's finding. She relied on Meixner using conservative treatment (without examining its effectiveness); that is different than finding that her conditions were not limiting because treatment was effective. As found by Dr. Coull, Meixner's headaches were not well-controlled. (AR 928.)
Even if the ALJ had offered a sufficient reason to discount the doctors' opinions regarding Meixner's pain, it would not undermine the entirety of their opinions. Their functional assessments were based in large part on Meixner's fatigue and cognitive impairment. (AR 622-23, 627-28, 640, 642-43, 670, 672-73, 917, 924, 1074, 1086, 1088-89.) This conclusion is supported by record notations documenting Dr. Bessette's belief that Meixner was unable to work due to chronic fatigue and cognitive limitations. (AR 529, 532, 544, 837.) Because pain was not the primary factor underlying these doctors' opinions as to Meixner's limitations, conservative treatment is not a specific, legitimate reason to discount her treating physicians' opinions in entirety.
Finally, the ALJ concluded that the doctors' findings of disabling limitations were inconsistent with Meixner's reported activities of daily living. (AR 26.) The ALJ noted that Meixner reported renovating a house with her husband, riding her horse, and performing light household chores. (Id.) The ALJ failed to articulate how Meixner's activities of daily living contradicted either doctor's opinion. Further, as discussed above, the ALJ's evaluation of Meixner's activities of daily living was incomplete and highlighted activities performed by Meixner at her most functional without including the significant limitations in her daily functioning such as daily naps.
CONCLUSION AND RECOMMENDATION
A federal court may affirm, modify, reverse, or remand a social security case. 42 U.S.C. § 405(g). When a court finds that an administrative decision is flawed, the remedy should generally be remand for “additional investigation or explanation.” INS v. Ventura, 537 U.S. 12, 16 (2006) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)); see also Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004). However, a district court should credit as true medical opinions and a claimant's testimony that was improperly rejected by the ALJ and remand for benefits if:
(1) the ALJ failed to provide legally sufficient reasons for rejecting the testimony; (2) there are no outstanding issues that must be resolved before a determination of disability can be made; and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.Benecke, 379 F.3d at 594; Garrison, 759 F.3d at 1021 (precluding remand for further proceedings if the purpose is solely to allow ALJ to revisit the medical opinion he rejected). The Ninth Circuit holds that application of the credit as true rule is mandatory unless the record creates serious doubt that the claimant is disabled. Garrison, 759 F.3d at 1021.
The Court concluded that the first requirement has been satisfied, because the ALJ rejected Meixner's symptom testimony and the opinions of Drs. Coull and Bessette without legally valid reasons. Second, there are no outstanding issues to be resolved. Defendant disagrees, citing conflicts in the record between the opinions of various physicians as well as between Plaintiff's testimony and physician opinions. The ALJ reviewed these opinion variances and had an opportunity to resolve them. However, her resolution was not well-reasoned. The record needs no further development and Defendant does not argue otherwise. If the Court were to remand for further proceedings, it would be solely for the ALJ to reconsider evidence he has already reviewed and rejected on a legally insufficient basis. A mulligan to re-evaluate the same evidence does not qualify as a useful purpose for a remand under the credit-as-true analysis. Id. at 1021-22.
Although there are conflicting medical opinions, the ALJ did not give substantial weight to any doctor's opinion. (AR 25-27.) It is of significant note that all of the treating and examining doctors that offered an opinion concluded that Meixner's limitations were of a severity precluding work. (AR 745, 753.)
Next, the Court evaluates the outcome of the disability analysis if the opinions of Drs. Coull and Bessette and Meixner's symptom testimony are credited. Both doctors opined that Meixner would be off task at least 11% of the day and would miss four or more workdays per month. (AR 917-18, 924-25, 992-93, 1074-75, 1086-91.) Meixner stated that she was unable to focus for an eight-hour workday; would be unable to complete a full workday because of her need to nap; would be off task “a lot” of the time; and would miss work at least three days a week. (AR 57, 65-66, 68-69, 225.) The Vocational Expert testified that no work was available for a person that would regularly miss one or more days of work per month. (AR 75-77.) Similarly, no work was available for a person that would be off-task 10% or more per workday. (AR 75-77.) Crediting the testimony of the treating physicians and Meixner, the ALJ would be required to find Meixner disabled based on the vocational expert's testimony.
After a thorough review of the entire record, the Court does not have serious doubts as to whether Meixner is disabled. Therefore, the Magistrate Judge recommends that the District Court remand this matter for the award of benefits.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No. reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived.