Opinion
CV-22-00022-TUC-JAS (BGM)
03-22-2023
Steven Porrier, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable Bruce G. Macdonald United States Magistrate Judge.
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), Plaintiff Steven Porrier (“Porrier”) seeks judicial review of a final decision by the Commissioner of Social Security (“Commissioner”). The matter was referred to the undersigned for Report and Recommendation and is ripe for review. (Doc. 13, 22, 24-25.) Based on the pleadings and the administrative record (“AR”), the Magistrate Judge recommends the District Court reverse the decision of the ALJ and remand this matter for the immediate calculation and payment of benefits.
BACKGROUND
Procedural History
On April 17, 2018, Porrier filed an application for Supplemental Security Income under Title XVI of the Social Security Act (Act), 42 U.S.C. § 1382c, alleging a disability onset date of February 1, 2017. (Doc. 24 at 2; AR 16, 19.) His application was denied initially and on reconsideration. (AR 131-145 (initial), 150-171 (reconsideration).) On April 15, 2020, a hearing was held before an Administrative Law Judge (“ALJ”). (AR 6082.) In a decision dated April 29, 2020, the ALJ determined Porrier was not disabled. (AR 172-190.) Porrier's request for review by the Appeals Council was granted and the matter remanded on September 30, 2022. (AR 16.) A second hearing was held on March 4, 2021. (AR 41-59.) The ALJ issued a second unfavorable decision dated April 6, 2021. (AR 1635.) Porrier's request for review of the ALJ's April 6, 2021 decision by the Appeals Council was denied thus making the ALJ's decision final for judicial review. (AR 1-4.) See 42 U.S.C. §§ 405(g), 1383(c)(3).
The ALJ's Decision
At step one, the ALJ determined Porrier had not engaged in substantial gainful activity since April 17, 2018, the application date. (AR 19.) At step two, the ALJ determined Porrier suffered from the severe impairments of schizoaffective disorder, post-traumatic stress disorder, depression and anxiety. (AR 20.) At step three, the ALJ determined Porrier did not suffer from an impairment or combination of impairments that met or equaled a listed impairment. (AR 20-21.) After step three but before step four, the ALJ determined Porrier's residual functional capacity (“RFC”) as follows:
[T]he claimant ha[s] the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant can perform all unskilled work learned either through brief demonstration or in less than 30 days on the job, with no more than minimal changes in the work tasks as assigned. He can have occasional interaction with the public, coworkers, and supervisors.(AR 21.) At step four, the ALJ determined that Porrier has no past relevant work. (AR 34.) At step five, the ALJ found Porrier able to perform other work such as a kitchen helper, assembler and packer. (AR 35.)
Brief Relevant Factual History
Porrier was born in 1982 and is a younger individual. (AR 34.) He has a 10th grade education. (AR 45.) He endorses chronic audio and visual hallucinations, mood changes, and anxiety. (AR 788.) He has received mental health treatment from CODAC Behavioral Health. (AR 636-667, 674-687, 702-832.) In 2018 and 2019, Porrier maintained sheltered employment with The Beacon Group. (AR 65, 561-635.) As of the March 2021 hearing, he was working at Little Caesars for 20 hours a week doing preparation work. (AR 45-46, 49.) He does not deal with the public at Little Caesars. (AR 49.)
Hearing Testimony
At the April 2020 hearing, Porrier testified he wakes up at 6:20 a.m. and that he can perform certain around the house and grocery shop. (AR 67-68.) He writes poetry and plays video games. (AR 68.) He paces a lot. (AR 69.) He takes the bus to his medical appointments. (AR 70.)
He hears voices that sound like “screaming” in his head. He explained that he has multiple personalities that cause him to be in a situation or place without remembering how he got there, and being emotionally unbalanced. (AR 71.) He testified that it is very difficult for him to function in his Little Caesars job and that he would not be able to do the work full time because after a few hours of work he starts hallucinating and hearing voices that say “the most horrible and violent things.” (AR 71-72.) The voices bothered him during the hearing. (AR 72.) He frequently asks his boss for direction because he cannot remember the task he is supposed to be working on. (AR 73.)
At the hearing, Porrier began having difficulty answering questions because of hearing loud voices. (AR 73-74.) He explained that sometimes he can work through the voices and, at other times, the intensity is louder and he can no longer concentrate. (AR 75.) He described violent impulses towards himself and others stemming from auditory hallucinations. (AR 75-76.) He lost custody of a child because of his mental health issues. (AR 77-78.)
At the March 2021 hearing, Porrier believed was “probably” still working at Little Caesars. (AR 45.) His testimony about chores, shopping, and watching television was similar to his testimony in April 2020. (AR 46-47.) He stated that his ability to visit people was worse than before. (AR 48-49.) He explained that he had not been to mental health treatment during the Covid pandemic because he was not comfortable discussing past trauma with somebody over the phone, whereas a telephonic court hearing was less invasive. (AR 49-51.) He is currently not on medication. His medications never had a positive effect on him and he has not noticed a difference since being off his medications. (AR 51-52, 54.) His depression is so intense that he cannot listen to music or play video games several days per month. (AR 56.)
A Vocational Expert (“VE”) testified at the March 2021 hearing that being absent from work or off-task five to seven days per month would not be tolerated on an ongoing basis. (AR 58.) A VE testified at the April 2020 hearing that if an individual missed work 50% or more of the day for one day a week the individual would not be able to maintain competitive employment. (AR 81.)
Dr. Rohen's Opinion
On September 11, 2018, Porrier underwent a psychological evaluation by licensed psychologist Noelle Rohen, Ph. D. (AR 688-672.) On mental status exam Dr. Rohen observed in part:
Affect was bright, manner ebullient, but claimant also appeared frustrated, and even cheerfully torment for lack of a better description. He rocked continuously, grimaced and also smiled as he agonized over a point, appeared to struggle to hold on to his thoughts long enough to expresses (sic) them. He asked for writer's patience as he paused, and sometimes decided, “I can't, there's just too must noise in my head right now.” Other times he asked writer to remind him of the question. . . . Speech was rapid and with some press (sic), though he was easily interruptible and redirectable. Amplitude was on the higher side of average. Motor activity was remarkable only for constant hyperkinetics - rocking forward and back vigorously, twisting in his seat, checking the windows, rubbing his hands over his hair, squeezing his soda bottle.(AR 670-671.) Dr. Rohen opined in part:
Focus appeared impaired today, which he attributed to voices screaming in his head. Persistence was adequate today. Subjective allegation, which writer cannot verify, is that he has been unable to remain at work due to flashbacks or AH. This allegation is support today by his level of agitation. ...
Claimant can appropriately dress and basically groom. He relates in friendly and pleasant manner, but appears highly agitated today, hyperkinetic, possibly manic, and presents as unable to keep stream of thought at times. Subjectively he reports high anxiety around others, with associated avoidance.(AR 672.)
STANDARD OF REVIEW
The Commissioner employs a five-step sequential process to evaluate DIB claims. 20 C.F.R. pt. 404.1520a; 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. pt. 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)).
A claimant is disabled for the purpose of receiving benefits if she is unable to engage in any substantial gainful activity due to an impairment which has lasted, or is expected to last, for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. pt. 404.1505(a). "The claimant bears the burden of establishing a prima facie case of disability." Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996).
ISSUES ON REVIEW
Porrier raises three issues for review. (Doc. 21 at 2.) First, Porrier claims the ALJ erred by failing to include an opined manipulation limitation in formulating his RFC. Id. Second, he claims the ALJ failed to support his reduced credibility determination with specific, clear and convincing reasons. Id. Third, he claims the ALJ's decision to assign no persuasive weight to Dr. Rohen's opinion is not supported by substantial evidence. Id. The Commissioner argues against Porrier's claims of error. (Doc. 24.) As more fully explained below, this Court agrees with Porrier on his second and third claims of error and finds that the errors are not harmless. Accordingly, this Court recommends that the decision of the ALJ be reversed and this case be remanded.
DISCUSSION
Credibility Analysis
The parties agree that Porrier's mental health treatment and other records-as with many individuals who suffer from mental health issues-establish that sometimes Porrier suffers symptoms of impairment and sometimes he does not. See generally, Doc. 21 at 1120; Doc. 24 at 3-6. As such, it is worth acknowledging the Ninth Circuit Court of Appeals's admonition that that while discussing mental health issues, it is error to reject a claimant's testimony merely because symptoms wax and wane. Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). The Ninth Circuit has frequently reminded administrative law judges and the district court that “[c]ycles of improvement and debilitating symptoms are a common occurrence . . . and [r]eports of ‘improvement' in the context of mental health issues must be interpreted with an understanding of the patient's overall well-being and the nature of her symptoms.” Id. (citing Ryan v. Comm'r, 528 F.3d 1194, 1200-01 (9th Cir. 2008)). “[Reports of improvement] must also be interpreted with an awareness that improved functioning while being treated and while limiting environmental stressors does not always mean that a claimant can function effectively in a workplace.” Garrison, 759 F.3d at 1017 (citing Hutsell v. Massanari, 259 F.3d 707, 712 (8th Cir. 2001)). Bearing these principles in mind, as more fully set forth below, this Court finds that the ALJ failed to support her reduced credibility determination with specific, clear and convincing reasons.
This was not a ground relied upon by the ALJ in reaching her reduced credibility determination. (AR 32.) Nevertheless, this Court finds the Ninth Circuit's instructions worth mentioning as part of a larger framework for evaluating an ALJ's reduced credibility determination when the claimant carries mental health diagnoses (such as Porrier).
Disability benefits cannot be granted based solely on a claimant's subjective complaints. See 42 U.S.C. § 423(d)(5)(A) (“[a]n individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability”); 20 C.F.R. pt. 404.1529(a) (statements about pain or other symptoms will not alone establish disability). Where a claimant has provided objective medical evidence of an impairment that could reasonably produce the alleged symptoms, the ALJ evaluates the intensity and persistence of the symptoms. See SSR 16-3P, 2016 WL 1119029. The ALJ is required to evaluate whether a claimant's statements about her symptoms are consistent with the objective medical evidence and the other evidence in the record. See 20 C.F.R. pt. 404.1529(c)(2), (3); SSR 16-3P, 2016 WL 1119029.
The ALJ must make specific findings about a claimant's allegations, properly supported by the record and sufficiently specific to ensure a reviewing court that the claimant's subjective testimony was not arbitrarily discredited. See Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (citing Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en banc)). Unless there is affirmative evidence that a claimant is malingering, an ALJ's reasons for discounting the claimant's testimony regarding the severity of his symptoms must be “clear and convincing.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). “If the ALJ's . . . finding is supported by substantial evidence, [a court] may not engage in second-guessing.” Kelly L. K. v. Saul, No. 5:20-cv-1773-MAR, 2021 WL 3269981, at *6 (C.D. Cal. July 30, 2021) (quoting Thomas, 278 F.3d at 959).
In discounting Porrier's symptom testimony the ALJ determined:
As for the claimant's statements about the intensity, persistence, and limiting
effects of his or her symptoms, the medical evidence record show the claimant was able to complete rigorous testing (Exhibit B9F), engage in “prejob training and development” successfully with [The] Beacon Group (Exhibit B5 F). He testified that he had no mental health treatment or medications since April 2020, the start of the Covid pandemic, as he had a preference to in person psychiatric visits only. There is no evidentiary support to conclude the claimant is unable to perform full time work.(AR 32.) The Court discusses the ALJ's reasons in seriatim.
Rigorous Vocational Testing
The ALJ relied on a finding that Porrier's ability to complete one day of “rigorous vocational testing” supported a reduced credibility determination. (AR 32.) The ALJ did not explain why Porrier's ability to complete one day of vocational testing reflects that the intensity, persistence and limiting effects of his symptoms are not as severe as he indicates. Id. This Court finds this stated reason, without any explanation, is not a specific, clear and convincing reason to support her reduced credibility determination. See e.g., Maske v. Comm'r. of Soc. Sec. Admin., No. CV-18-04891-PHX-DWL, 2020 WL 813768, at *5 (D. Ariz. Feb. 16, 2020) (finding ALJ improperly “failed to build a logical bridge between the evidence and her conclusions”). See also, Garrison, 759 F.3d at 1017 (recognizing that “. . . mental health issues must be interpreted with an understanding of the patient's overall well-being and the nature of her symptoms.”).
Engagement in a Sheltered Work Environment
The ALJ found that Porrier's engagement in “pre-job training and development” with The Beacon Group supported a reduced credibility determination. (AR 32.) Porrier argues that the ALJ neglected to consider that his experience with The Beacon Group was a heavily supported or sheltered work environment. (Doc. 21 at 12.) Porrier insists that it is error to equate sheltered work with competitive employment. He also urges that it is not clear that he successfully “completed” this program. (Doc. 21 at 12.) He points to the last notation in the record which indicates that he would continue in the sheltered program in January 2018. (AR 561.) He continued in the program in September 2018 and he reported being connected with DES vocational rehab (referring to the same program) in January 2020. (AR 669, 784.) Thus, according to Porrier, it is not clear that he completed the program. And, even if he did complete the program, he insists that his continued participation in sheltered vocational rehabilitation is not a clear and convincing reason to disregard his symptom testimony.
In opposition, the Commissioner points to records that Porrier worked in five to six hour shifts (AR 48 (Porrier's testimony).) The Commissioner also points out that while Porrier was in job training and development with The Beacon Group he often worked from 8:00 a.m. to 2:30 p.m. See e.g., AR 574, 577, 579, 583, 585-87, 594. Records also document that sometimes Porrier finished his work early. See e.g., AR 569-71. The Commissioner urges that Porrier's ability to work part-time is an indicator that he has an ability to work full time in a competitive setting. The Commissioner also points out that in the past Porrier worked as a day laborer/warehouse worker.
This Court agrees with Porrier that The Beacon Group is akin to a sheltered work environment and not competitive employment. For example, Porrier points out that prior to beginning work, he would discuss the day's tasks with staff, and receive instruction and encouragement throughout the day. See AR 630 (“Staff provided ongoing encouragement to guarantee that member stayed on task without making any errors. Staff praised member for working diligently without making any mistakes.”); AR 627 (“Staff provided ongoing coaching to guarantee that member maintained productivity.”); AR 623 (“Member appeared to be nervous AEB member making rigid movements. Staff provided ongoing encouragement to help member maintain composure.”); AR 619 (ongoing coaching); AR 618 (noting ongoing encouragement); AR 617 (noting ongoing coaching); AR 594 (noting ongoing coaching in the face of agitation); AR 587 (oting ongoing encouragement). The Commissioner does not seriously dispute that The Beacon Group is a sheltered worked environment but maintains that Porrier's performance with The Beacon Group is evidence that he can work full time competitively. This Court disagrees as the record does not support a determination that Porrier consistently performed successfully in a full time work competitive environment.
This Court also rejects the Commissioner's argument that Porrier's past work as a day laborer/warehouse worker supports a reduced credibility determination. As found by the ALJ, during the relevant period Porrier never worked enough to rise to the level of disqualifying substantial gainful activity. (AR 19.) Further, Porrier's work history in the competitive market is limited and was performed so long ago (2005) that it is simply not persuasive evidence that Porrier can engage in competitive full time work. (AR 66-67.) This Court finds that Porrier's limited ability to maintain competitive employment and his performance in a part time sheltered work environment is not a specific, clear and convincing reason that supports a reduced credibility determination. See Fimbres v. Astrue, No. CV-11-0349-TUC-DTF, 2012 WL 5269216, at *3 (D. Ariz. Oct. 23, 2012) (finding a claimant's work in a sheltered environment and a sporadic competitive work history insufficient to reject opinion testimony).
Mental Health Treatment
The ALJ relied on Porrier's testimony that he had no mental health treatment since the start of the Covid pandemic to support a reduced credibility determination. (AR 32.) In this circuit, a “lack of treatment is a questionable basis on which to reject mental health claims because mental illness may impair judgment resulting in failure to seek assistance.” Fimbres, 2012 WL 5269216, at *5 (citing Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996)). “Unlike an assertion of pain, for which failure to seek treatment is incongruous with a disabling condition, not seeking mental health treatment is consistent with the impairment.” Fimbres, 2012 WL 5269216, at *5. Likewise, an ALJ may not draw inferences based on a failure to seek treatment without inquiring for an explanation by the claimant or considering other record evidence that may explain the lack of care. SSR 967p.
Here, Porrier explained his lack of treatment at the hearing stating that “therapy is more invasive. It asks about trauma and various things that I've been through.” (AR 50.) He explained that he is unable to go into his trauma in detail over the phone even though he has a desire to address his trauma. (AR 50-51.) Regarding stopping his medication, Porrier testified that his medications did not affect him in a positive way. (AR 52.) He also testified that he had “all these negative side effects.” Id.
While the ALJ noted Porrier's explanation, she did not analyze how she considered Porrier's explanation. Under the applicable regulations, the ALJ is required to inquire into the reasons that a person might not engage in treatment commensurate with the severity of the symptoms alleged and to “explain how we considered the individual's reasons in our evaluation of the individual's symptoms.” See SSR 16-3p, 2016 WL 1119029. The ALJ failed to do so here. This Court finds that Porrier's lack of mental health treatment is not a specific, clear and convincing reason to support a reduced credibility determination.
Lack of Objective Medical Support
Lastly, the ALJ supported her reduced credibility determination with a finding that “[t]here is no evidentiary support to conclude the claimant is unable to perform full time work.” (AR 32.) This Court construes this statement to be a finding by the ALJ that there is a lack of objective medical support for Porrier's claimed symptoms. So construed, this Court determines that a lack of objective medical support is not a specific, clear and convincing reason to reduce Porrier's credibility.
A lack of objective medical findings alone is not a sufficient basis to support an adverse credibility determination. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (lack of objective medical evidence to support subjective symptom allegations cannot form the sole basis for discounting pain testimony); Dschaak v. Astrue, No. CV-10-1010-PK, 2011 WL 4498835, at *1 (D. Or. Sept. 27, 2011) (holding that “once the[ ] other bases for the ALJ's decision were discarded as erroneous, the ALJ's [adverse subjective testimony] determination could not rely solely on conflicts with the medical evidence”). As explained above, this Court finds that the other reasons relied upon by the ALJ for discounting Porrier's symptom testimony-so-called rigorous vocational testing, participation in a sheltered work environment, and not engaging in virtual psychiatric treatment or taking psychiatric medications due to side effects-are not specific, clear and convincing reasons.
Accordingly, a lack of objective medical support, now standing alone, is not a specific, clear and convincing reason for rejecting Porrier's symptom testimony.
In sum, this Court determines that the ALJ's reduced credibility determination is not supported by specific, clear and convincing reasons.
Consideration of Opinion Evidence
As mentioned above, Dr. Rohen opined, inter alia, that Porrier had impaired focus and that Porrier's subjective allegation that he is unable to work due to flashbacks and audio hallucinations was supported by his level of agitation. (AR 672.) Dr. Rohen noted that Porreir was hyperkinetic (rocking back and forth vigorously, twisting in his seat, checking the windows, rubbing his hands over his hair, squeezing his soda bottle), and that he was unable to maintain a stream of thought during her evaluation. (AR 671-672.) She opined that Porrier can learn new tasks and avoid hazards, but he may overestimate the level of threat in his environment. (AR 672.)
Considering Dr. Rhen's opinion, the ALJ stated:
The September 11, 2018 opinion of Dr. Rohen (Exhibit B7F), is not persuasive and not supported by the claimant's activities of daily living; his current part time work; recent lack of mental health treatment and psychotropic medications; and the claimant's treatment records between 2017 and 2020 as discussed in detail above. Furthermore, she qualified her opinion on the claimant's presentation “today,” noting he appeared impaired “today,” and appeared highly agitated “today,” and she noted the claimant's subjective allegation that he was unable to remain at work due to flashbacks and auditory hallucinations were supported “today” by his level agitation (Exhibit B7F). However, the undersigned finds the opinion of Dr. Rohen is not consistent with the evidentiary record, which shows the claimant was successful in his pre-employment training, and that when engaged in work tasks over a six and a half hour shift, he complete (sic) work tasks, understood instructions, and got along with other including supervisors and co-workers (Exhibit B5F).(AR 33.)
Porrier argues that the ALJ did not discuss how well supported Dr. Rohen's opinion is in terms of the objective medical evidence. (Doc. 21 at 16.) He urges the ALJ's reference to Dr. Rohen's qualifier that she based her opinion on her observations of Porrier “today” is an improper consideration that Dr. Rohen is not a treating source. He urges that the ALJ's consideration of Dr. Rohen's one-time examination is erroneous because the new regulations have eliminated any form of hierarchy among classes of opinions. Id. (citing 20 C.F.R. 416.920c(a)).
Porrier also urges the ALJ's finding that Dr. Rohen's opinion is not consistent with the evidence is not based upon substantial evidence. (Doc. 21 at 17.) He insists the ALJ incorrectly found that his lack of treatment is inconsistent with Dr. Rohen's opinion reasoning that a lack of treatment is inconsistent with an opinion that Porrier has work-preclusive limitations if, from the lack of treatment, improvement was established. Id. at 18. Porrier points out, however, that this is not the case and urges that he has a good reason for not treating his psychiatric symptoms during the Covid pandemic. He urges that the ALJ erroneously failed to explain why his reasoning is unconvincing or inconsistent with his documented paranoia and agitation. Id. He also insists the ALJ's finding that his activities of daily living are inconsistent with Dr. Rohen's opinion is erroneous. Id. at 17.
The Commissioner argues that the ALJ properly considered the relationship between Dr. Rohen and Porrier urging that 20 C.F.R. pt. 416.920c(b)(2) allows for such. (Doc. 24 at 17.) The Commissioner urges there is evidence in the record that documents a lack of racing thoughts and that Porrier has presented with linear thought process which is contrary to Dr. Rohen's documented inability to “keep stream of thought at times.” (Doc. 24 at 18.) The Commissioner also urges that Porrier's part-time work history is inconsistent with Dr. Rohen's assessed limitations. Id.
Under 20 C.F.R. pt. 416.920c(a), the Commissioner “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [the claimant's] medical sources.” 20 C.F.R. pt. 416.920c(a). When evaluating the persuasiveness of a medical opinion, the most important factors are supportability and consistency. Id. at pt. 416.920c(b)(2). With respect to “supportability,” the regulations provide that “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical flnding(s) will be.” 20 C.F.R. pt. 416.920c(c)(1). With respect to “consistency,” the regulations provide that “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical fmding(s) will be.” Id. at pt. 416.920c(c)(2). The ALJ must articulate her consideration of the medical opinion evidence, including how persuasive she finds the medical opinions in the case record. Id. at pt. 416.920c(b). The ALJ must explain how she considered the “supportability” and “consistency” factors for a medical source's opinion. Id. at pt. 416.920c(b)(2).
This Court agrees with Porrier that the ALJ's discussion of Dr. Rohen's opinion as less persuasive because it was rendered based on a one-time examination is not an analysis of supportability but rather an observation of the treatment relationship. It is undisputed that Dr. Rohen is a consultative examiner. Thus, it is no surprise that her opinion was based on her experience with Porrier during her examination. Additionally, this Court notes that the length of treatment relationship and frequency of examinations, while factors that may be considered, are factors that are separate from the supportability and consistency factors. See 20 C.F.R. pt. 416.920c(c) (factors include: (1) supportability; (2) constancy; (3) relationship with the claimant, including the length of treatment relationship and the frequency of examinations). This Court finds the ALJ's reliance on Dr. Rohen's one-time examination of Porrier to find that her opinion unsupported by the record and assign no persuasive value to her opinion is erroneous.
This Court also agrees with Porrier that the ALJ's finding that Dr. Rohen's observation that Porrier was unable to keep a stream of thought was inconsistent with the record is erroneous. It is true that the record contains evidence that at times Porrier had no racing thoughts and that he presented with linear thought processes. See e.g., AR 528, 680. It is also true, however, that the record reflects that Porrier also at times presented with rambling, tangential or remarkable thought processes. See e.g., AR 516, 657. The record establishes that Porrier's mental health fluctuates and, as such, Dr. Rohen's observation is not inconsistent with the record. This Court finds the ALJ's reliance on record inconsistency in regard to Porrier's thought process to assign no persuasive value to Dr. Rohen's opinion is erroneous.
This Court also finds the ALJ's determination that Porrier's part-time work history is inconsistent with Dr. Rohen's assessed limitations is unsupported. To start, as pointed out by Porrier and not contested by the Commissioner, Porrier was engaged in a sheltered work environment at the time Dr. Rohen examined Porrier. (Doc. 21 at 17.) The record establishes that during this time Porrier struggled to tolerate 30 hour per week and he missed two to three days per week. See AR 669-670 (“He is supposed to take 30 hours a week but finds that hard to tolerate, misses 2-3 days a week because of appointments or because of an inability to go in or stay in. He uses headphones to block people out.”). Dr. Rohen's opinion is consistent with this evidence in the record. See AR 672 (“. . . he has been unable to remain at work due to flashbacks or AH . . . he reports high anxiety around others, associated with avoidance ... the claimant can learn new tasks, but may overestimate the level of threat in his environment.”).
Finally, the ALJ assigned no persuasive value to Dr. Rohen's opinion finding her opinion inconsistent with Porrier's activities of daily living. (AR 33.) The ALJ failed to explain precisely which of Porrier's activities of daily living are inconsistent with Dr. Rohen's opinion. Id. The ALJ's failure to offer any rationale for her finding that Dr. Rohen's opinion is not persuasive because it is inconsistent with Porrier's activities of daily living is erroneous. See e.g., Maske, 2020 WL 813768, at *5 (finding ALJ improperly “failed to build a logical bridge between the evidence and her conclusions”); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884 (9th Cir. 2006) (finding that even when “facially legitimate reasons” support an adverse determination, “complete lack of meaningful explanation gives this court nothing with which to assess its legitimacy”).
In sum, this Court finds the ALJ erred in assigning no persuasive value to Dr. Rohen's opinion.
The ALJ's Errors are Not Harmless
An ALJ's decision will not be reversed for an error that is harmless. Stout v. Comm 'r of Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006). An error is harmless if the reviewing court can confidently conclude that no reasonable ALJ could have reached a different disability determination. Stout, 454 F.3d at 1056. Stated another way, an error is harmless if it is inconsequential to the non-disability determination. Id. at 1055.
Here, the ALJ's non-disability determination relied on her decision to find Dr. Rohen's opinion not persuasive and her discrediting Porrier's symptom testimony. This Court cannot conclude that the ALJ's errors are harmless. See e.g., Brown-Hunter v. Colvin, 806 F.3d 487, 492-93 (9th Cir. 2015) (holding that an ALJ's failure to adequately support reason for discounting claimant testimony “will usually not be harmless”).
Remand For Immediate Calculation and Award of Benefits is Recommended
With error established, the district court has the discretion to remand or reverse and award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). A case may be remanded under the credit-as-true rule for an award of benefits 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.Garrison, 759 F.3d at 1020. Even where all the conditions for the credit-as-true rule are met, the court retains “flexibility to remand for further proceedings when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act.” Id. at 1021.
This Court finds the requirements for the application of the credit-as-true rule are met. First, the record is fully developed. The record contains medical opinions, sufficient medical evidence, Porrier's testimony, and VE testimony.
As discussed above, it was error for the ALJ to determine that the opinion of Dr. Rohen was not persuasive and to reduce Porrier's credibility. The overwhelming evidence establishes that Porrier can only perform in a sheltered work environment. As recorded by Dr. Rohen and as Porrier testified, he is unable to successfully perform in a competitive work environment. (AR 669-670 (Dr. Rohen recording that Porrier is unable to work 30 hours a week), 42-53 (testimony by Porrier why he cannot work full time).)
According to VE testimony, if a person were absent from work five to seven days a month he could not sustain work. (AR 58.) According to testimony of another VE, if an individual missed work 50% or more of the day one day a week it would be impossible for that individual to maintain competitive employment. (AR 81.) See Revels v. Berryhill, 874 F.3d 648, 669 (9th Cir. 2017) (“If credited as true, Dr. Nolan's opinion establishes that Revels is disabled, because the VE testified that someone with the limitations established by Dr. Nolan could not work.”) Finding Dr. Rohen's opinion persuasive and crediting as true Porrier's symptom testimony would, according to VE testimony, result in a finding that Porrier is disabled under the applicable regulations.
This Court finds that there is no serious doubt that Porrier is disabled and a failure to reverse the decision of the ALJ and remand with the instruction to calculate and award benefits would be an abuse of discretion. See Garrison, 750 F.3d at 1018 (reversing for abuse of discretion the district court's decision to remand the case to the ALJ for further proceedings instead of remanding to the ALJ for the calculation and award of benefits). Considering the foregoing, remand with instructions to immediately calculate and award benefits is recommended.
RECOMMENDATION
It is recommended that the District Court, after its independent review, reverse the decision of the ALJ and remand to the Commissioner for the immediate calculation and 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. If objections are filed, the parties should use the following case number: 4:22-cv-00022-JAS.