Opinion
CV-21-00117-TUC-DCB (EJM)
07-15-2022
Jaemi Rimando, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Eric J. Mankovich United States Magistrate Judge
Plaintiff Jaemi Rimando brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security (“Commissioner”). Plaintiff raises two issues on appeal: 1) the Administrative Law Judge (“ALJ”) failed to give clear and convincing reasons to discount Plaintiff's subjective symptom testimony; and 2) the ALJ failed to fully and fairly develop the record by failing to adduce evidence at hearing material to the determination of disability. (Doc. 22).
Before the Court are Plaintiff's Opening Brief, Defendant's Response, and Plaintiff's Reply. (Docs. 22, 25, & 26). Based on the pleadings and the administrative record submitted to the Court, the Magistrate Judge recommends that the District Court, after its independent review, affirm the Commissioner's decision.
I. Procedural History
Plaintiff filed applications for Disability Insurance Benefits and Supplemental Security Income on December 28, 2018. (Administrative Record (“AR”) 182, 189). Plaintiff alleged disability beginning on July 31, 2017 based on mental health, back pain, high cholesterol, thyroid problems, anxiety, and manic bipolar. (AR 39-40). Plaintiff's applications were denied upon initial review (AR 35, 37) and on reconsideration (AR 67, 69). A hearing was held on June 23, 2020 (AR 3940), after which ALJ Yasmin Elias found, at Step Four, that Plaintiff was not disabled because she was capable of performing her past relevant work as a fast-food worker or telemarketer/solicitor. (AR 29-30). On February 3, 2021 the Appeals Council denied Plaintiff's request to review the ALJ's decision. (AR 1).
Plaintiff's date last insured (“DLI”) for DIB purposes is September 30, 2021. (AR 13). Thus, to be eligible for benefits, Plaintiff must prove that she was disabled during the time period of the AOD of July 31, 2017 and the DLI of September 30, 2021.
The disability determination explanations at the initial and reconsideration levels state that Plaintiff's DLI is June 30, 2021; however, the ALJ stated that Plaintiff's DLI is September 30, 2021. (AR 13, 39, 71).
While the undersigned has reviewed the entirety of the record in this matter, the following summary includes only the information most pertinent to the Court's decision on Plaintiff's claims on appeal.
Plaintiff was born on May 12, 1980, making her 37 years old at the alleged onset date of her disability. (AR 39). Plaintiff completed three years of college and has past work in fast food, telemarketing, hotel front desk/cashier, stocking, and exotic dancing. (AR 217, 231, 3957).
A. Medical Evidence
i. La Frontera Center
The record documents Plaintiff's treatment at La Frontera from 2016 to 2019. (AR 1685-1760, 2483-2796). On May 22, 2013 Plaintiff received notice that her Serious Mental Illness (“SMI”) application was approved and her provider was La Frontera. (AR 2797).
On July 16, 2018 Plaintiff reported she was seven days sober and wanted to go to a residential treatment center. (AR 1719). At a clinical assessment that same date, she reported daily auditory hallucinations and anxiety. (AR 1744). As to her ability to interact with others, Plaintiff said she could be around people and be social and had worked many places and never had issues with coworkers. (AR 1745). Her strengths were that she was a good listener, loyal, and friendly. (AR 1747). Plaintiff said she would never harm herself because of her kids. On exam attention and concentration were poor, fund of knowledge limited, behavior appropriate, thought process disorganized and flight of ideas, speech pressured and rambling, mood anxious, affect appropriate to thought content, insight and judgment poor, and memory selective. (AR 1748). Diagnosis was bipolar disorder, panic disorder with agoraphobia and moderate panic attacks, methamphetamine use disorder, and heroin abuse. (AR 1748-89).
On July 24, 2018 Plaintiff said she had not been honest with her recovery coach since they started working together and that she had been using substances while reporting she was sober. (AR 1720). She stated that if she was able to get into SMI housing, she wouldn't have to go to rehab.
On October 1, 2018 Plaintiff was interested in the methadone treatment program and reported she had been clean for five days. (AR 1724). An intake appointment was scheduled for October 9, 2018.
On October 4, 2018 Plaintiff felt really anxious, nervous, and like she was still withdrawing from heroin. (AR 1688). Clonidine was added for anxiety.
On October 9, 2018 Plaintiff reported last using heroin 24 hours ago; there were no observed psychiatric problems other than opiate drug use. (AR 1690). She said that she was living at a residential treatment facility and had been on Suboxone but had serotonin syndrome and was allergic to Suboxone. (AR 1750). The plan was to start Plaintiff on methadone with a recommendation that she stay at the facility and continue services with La Frontera; she declined employment services and group therapy. On exam attention and concentration were fair, fund of knowledge adequate, behavior appropriate, thought process concrete and relevant, speech pressured and rambling, mood relaxed, affect appropriate to thought content, insight and judgment good, and memory intact. (AR 1754).
On November 9, 2018 Plaintiff reported she was doing well on methadone; clonidine made her dizzy and throw up and was discontinued. (AR 1694). She agreed to participate in therapy to heal from her past and move forward. (AR 1731).
At a November 26, 2018 individual therapy assessment Plaintiff said she wanted to address past physical and emotional abuse and grief over losing custody of her children. (AR 1732). She reported difficulty managing negative thoughts, low self-esteem and body image issues, anxiety in social situations and urges to isolate, and no issues with activities of daily living (“ADL”).
On November 30, 2018 Plaintiff said she was not sleeping well because of night terrors and increased anxiety, and thought therapy was bringing up a lot of issues and giving her nightmares. (AR 1697). She also reported memory issues for the past few weeks, probably because of her drug use, and heard voices telling her people were after her and listened to music to drown them out. Plaintiff was observed to be sleepy with a repetitive eyelid droop and slurred speech. (AR 1698).
At a December 14, 2018 therapy appointment Plaintiff reported feeling hopeful to find housing; she was observed to be friendly with clear and coherent speech and fully participated in the session. (AR 1738).
On December 17, 2018 Plaintiff was observed as casual, friendly, good eye contact, normal speech and tone, relaxed mood, and organized thought process. (AR 1739). She said it looked like her housing referral to Primavera was going to go through and she was excited to move forward and discharge from Chalet house; she felt like she had made great progress and was ready to move on. Plaintiff wanted to taper off methadone with a goal of being off it completely.
On January 2, 2019 Plaintiff reported her methadone was decreased and her plan was to be off it completely at some point. (AR 1713).
On January 22, 2019 Plaintiff had just gotten a housing voucher through Primavera Foundation and was living with her son, was able to complete all ADL, and planned to go to beauty school. (AR 2503). She was going to get a medical marijuana card for knee and back pain and had been sober from all other substances for over four months. (AR 2504). Attention and concentration were fair, behavior appropriate, thought process concrete and rambling, speech pressured and rambling, mood relaxed, affect appropriate to thought content, insight and judgment good, and memory intact. (AR 2506).
On February 5, 2019 Plaintiff said she had really bad anxiety and hadn't felt that way in years and had increased paranoia. (AR 1757). She had successfully been off methadone for a month. An additional dose of Olanzapine was added to be taken as needed for anxiety and paranoia. (AR 1758).
On June 19, 2019 Plaintiff was struggling to engage in treatment services and needed to find employment to keep her housing; she wanted to work at Cafe 54 but needed a referral. (AR 2824). The provider noted that Plaintiff reported being sober but continued to fail all drug screens, and that she needed residential drug rehab or was going to become homeless.
On August 7, 2019 Plaintiff was closed from services because she was being transferred to Community Partners Integrated Healthcare (“CPIH”). (AR 2587).
ii. Community Bridges, Inc.
The record documents Plaintiff's treatment at Community Bridges from 2017 to 2018. (AR 299-1684).
On October 17, 2017 Plaintiff wanted to detox from methamphetamine and said she was feeling suicidal because she had been off of her psych meds for four months and had jumped into traffic. (AR 1649). Plaintiff later admitted she may have reported suicidal ideation due to being homeless with no support; she felt safe and was not suicidal but wanted inpatient treatment to stabilize her meds. (AR 1629, 1649). She was referred for inpatient treatment and reported using meth since age 26 and being abstinent for 2.5 years until she relapsed two weeks ago. (AR 1562).
On May 21, 2018 Plaintiff checked in for methamphetamine detox and medication stabilization. (AR 1521). After she was found to have marijuana contraband, Plaintiff claimed to be a California resident but was unable to produce a medical marijuana card and then declined further services.
On May 24, 2018 Plaintiff presented for methamphetamine detox; she was homeless and using meth daily. (AR 1439, 1457). She reported situational anxiety and depression, racing thoughts, and difficulty sleeping. (AR 1457).
On July 3, 2018 Plaintiff wanted to detox from methamphetamine and reported previous inpatient treatment in 2007 and 2017. (AR 1376). She had been clean for 8 months until she relapsed in May, got clean again, then relapsed again over the weekend. Plaintiff reported auditory and visual hallucinations as a result of her drug use, bipolar disorder, and PTSD with anxiety from losing custody of her children.
On July 9, 2018 Plaintiff had relapsed on meth and was seeking a refill of the psych meds she had been on in California, where she said she had been living for the past month. (AR 1281). Plaintiff endorsed auditory hallucinations that she described as background noise and felt her psych meds addressed her symptoms.
Plaintiff was admitted for inpatient opioid detox and psychiatric stabilization from July 11-18, 2018 and reported a 10-year history of meth and heroin use. (AR 928, 1235). On July 12 she said she was motivated to seek treatment because the paramedics found her passed out on the side of the road and that scared her, and she wanted to get well so she could be there for her family. (AR 929). She sometimes heard voices that people were after her and acknowledged her drug use intensified the voices. On July 14 she denied depression or psychosis but was still having issues with mood changes. On July 15 she reported anxiety, irritability, and hearing voices, and improvement in seeing shadows. On July 16 she reported being more anxious than normal due to difficulty coping with change and was feeling overwhelmed. She also reported racing thoughts, mood swings, paranoia, nightmares, and poor sleep. On July 17 she was still experiencing withdrawal symptoms and felt medication was not working as it should. (AR 928). Plaintiff reported to her therapist that she was having overwhelming thoughts and emotions regarding her recent substance abuse and non-compliance with meds that led to her inpatient treatment. (AR 994). She was observed to be anxious, fearful, and frustrated with herself, and the therapist recommended Plaintiff be assigned a trauma therapist to assist in recovery and learn appropriate coping skills. On July 18 she reported feeling better and sleeping better after Trazadone was increased, and nightmares were infrequent. (AR 928). She denied hallucinations but still felt paranoid. Plaintiff was to continue her medications and was cleared to discharge.
On September 19, 2018 Plaintiff sought treatment to detox from heroin and methamphetamine and reported a history of bipolar disorder and PTSD. (AR 743). She stated she could not take Suboxone due to serotonin syndrome and asked for methadone, and the provider strongly suspected Plaintiff was craving drugs. Plaintiff said she had been out of her psych meds for three weeks but refused to stay overnight to get them restarted. She claimed to have an appointment with a new provider in California, did not meet criteria for involuntary treatment, and was discharged against medical advice.
On September 21, 2018 Plaintiff returned and said that she thought she could do it on her own but that was a mistake and she was interested in medical detox. (AR 676, 684). She was admitted for inpatient detox and treatment of auditory and visual hallucinations from September 21-27, 2018. (AR 344). On September 23 she was feeling better and denied depression, but was also anxious, tearful, and felt overwhelmed. (AR 345). On September 24 she complained of anxiety and chronic mild auditory and visual hallucinations, and minimized her role in her substance abuse. (AR 345). On September 25 she reported sleeping well and presented as calmer. (AR 344-45). On September 26 she reported increased anxiety and auditory hallucinations and was observed to be very dramatic. (AR 344). On September 27 Plaintiff said she continued to hear voices but denied problems with sleep or side effects of medications. Diagnosis at discharge was amphetamine type substance use disorder, severe; opioid use disorder, severe; cannabis use disorder, severe; amphetamine (or other stimulant)-induced bipolar and related disorder with moderate or severe use; and borderline personality disorder. (AR 355).
iii. Banner UMC
On July 29, 2018 Plaintiff was brought to the emergency department after being found on the ground and complained of swelling in her upper and lower extremities and difficulty speaking and remembering words. (AR 284-85). Initial exam showed she was anxious but appeared healthy and in no acute distress, and further testing showed there was no emergent cause of her symptoms. (AR 285). The differential diagnosis was opioid withdrawal, anxiety, and marijuana use, and Plaintiff was discharged in good condition.
iv. Community Partners Integrated Healthcare
The record documents Plaintiff's treatment with CPIH and the Assertive Community Treatment (“ACT”) program from 2018 to 2020. (AR 1767-2291, 28283939).
On July 19, 2018 Plaintiff stated she was looking forward to getting into treatment and living a sober life. (AR 2254).
On February 8, 2019 Plaintiff stated she had just gotten off Suboxone and felt like she needed more help and didn't want to mess up; she felt it would be good to have more people watching her and holding her accountable. (AR 2168). She reported that she was diagnosed with depression and anxiety in 2010 and hearing voices all that time, got so anxious she didn't leave the house, and was paranoid that people were trying to kill her. Plaintiff reported three past suicide attempts and three overdoses, and past criminal charges for assault, criminal damage, felony possession, and DUI. (AR 2178, 2180). She had a medical assistant certificate and wanted to go back to school for her nursing degree; she had worked throughout her life but couldn't keep a job because of extreme anxiety and paranoia. (AR 2172, 2181).
On February 14, 2019 Plaintiff's stressor was being in temporary housing with no income, she had increased anxiety when thinking about leaving, panic attacks when out in public, and daily auditory hallucinations. (AR 2142). She had a friend that she saw occasionally and had been babysitting for her sister for the past two weeks. Thought process and content was goal-oriented, logical, clear, and organized, insight and judgment good, and Plaintiff was forthcoming with information. (AR 2143).
On February 15, 2019 Plaintiff said she was afraid to leave her house because she would relapse. (AR 2138).
On February 21, 2019 Plaintiff said she identified with schizoaffective disorder because she continued to experience auditory and visual hallucinations even when not in a manic or depressive episode. (AR 2122). She described using substances in the past as a band-aid to mask her feelings and help her feel normal, but now using just increased her symptoms. (AR 2122-23). Thought process and content was goal-oriented, logical, clear, and organized, and insight and judgment fair. (AR 2123).
At a March 1, 2019 psychiatric evaluation Plaintiff said sleep and mood were okay, anxiety bad, and depression stable with no mania/hypomania. (AR 2095). Plaintiff was cooperative with anxious mood, full affect, logical thought process, depressive thought content, partial insight into substance abuse and psychiatric problems, and judgment within normal limits. (AR 2100). Fluoxetine was added to augment Olanzapine and decrease depressive symptoms and anxiety, and the provider stated that Plaintiff had “minimal understanding into her mental health and is at high risk of relapse without structure therapy and groups which she has been evasive so far.”
On March 15, 2019 the provider noted that Plaintiff had not been attending groups and was only home to receive her meds, which was not how ACT was designed to work. (AR 2067). Plaintiff replied she had been babysitting for her sister so her schedule was off.
On March 22, 2019 Plaintiff reported no side effects from meds and was encouraged that her anxiety would lessen the more she attended groups. (AR 2057).
On March 28, 2019 Plaintiff was not going to be home for a scheduled therapy visit because she had stayed overnight at a friend's house and said she was doing ok and had been helping her mother with illness. (AR 2053).
On March 29, 2019 Plaintiff said her vocational goal was to be a hairdresser but she couldn't stand long to do the job. (AR 2049). She reported having over 15 jobs and being fired from all of them due to tardiness, absenteeism, mood instability, and the inability to manage social situations. She had increased anxiety due to uncertainty about her housing situation.
On April 4, 2019 the counselor discussed Plaintiff's lack of engagement with ACT services and Plaintiff said she had been busy with appointments but was unable to remember what other than a social security assessment two weeks prior, and also said she had been babysitting for her sister. (AR 2044). Plaintiff said she was feeling overwhelmed and having difficulty engaging in services, and the counselor reiterated how they could be helpful.
On April 11, 2019 Plaintiff said she had been away from home the past few weeks either visiting her grandparents or babysitting for her sister and so hadn't been to ACT groups. (AR 2021). She didn't want to talk much in front of her son but didn't want to go outside to talk, stating she rarely left the house unless forced to.
On April 16, 2019 Plaintiff said she went to group but was overwhelmed by all the people in a small space and she was having nightmares again from being kidnapped and held in a drug house. (AR 1983). Plaintiff stated multiple times that she'd be good if it wasn't for her anxiety. Prozac was helping her depression but wasn't strong enough, and she had no episodes of mania/hypomania. The provider documented mood anxious with flat affect, thought content obsessional depressive, attention and concentration impaired, and minimal insight into substance abuse and psychiatric problems. (AR 1986).
On April 18, 2019 Plaintiff had no issues with her meds and said everything was good and denied feeling stressed; she was working with a lawyer after her disability application had been denied the second time. (AR 1971). She admitted to smoking marijuana to help her anxiety but claimed she didn't know how she tested positive for benzodiazepine. Plaintiff said coloring and beading were helpful coping strategies in the past, but she had difficulty focusing and no desire to engage in them.
On April 26, 2019 Plaintiff was asked what she does with her days and said she sometimes babysits for her sister; she was encouraged to have meaningful activities but said it was hard for her to leave the house. (AR 1937).
On April 29, 2019 Plaintiff continued to babysit for her sister and had nothing new to report. (AR 1915). Insight was poor, judgment normal, and mood and affect appropriate. (AR 1930).
On April 30, 2019 Plaintiff had decreased observed restlessness since starting Abilify and reported sleep was better with no nightmares, mood better and not as anxious, depression a little better, and decreased auditory hallucinations. (AR 1906). On exam mood was anxious, affect full, thought process logical, partial insight as to acknowledging presence of substance abuse and psychiatric problems, and mildly impaired ability to make reasonable decisions. (AR 1910).
On May 2, 2019 Plaintiff said doing nothing allowed her not to worry so she had no desire to engage in anything and home was her safe spot. (AR 1904). The counselor noted Plaintiff wasn't providing congruent answers-stating she would go on walks yet had too much anxiety to leave the house-and tried to help Plaintiff hone in on what overrides her anxiety since she was able to leave on some occasions. Plaintiff said she was looking into part-time work to pay for her apartment, and the counselor suggested she start building up stamina of leaving the house to be successful.
At a May 7, 2019 team meeting Plaintiff was going to continue with La Frontera as her home health agency and ACT as an additional provider. (AR 1886). Plaintiff was to investigate feasible employment opportunities and she was interested in becoming a hairdresser or medical assistant. Thought process and content was mostly goal oriented, logical, clear, and organized, and insight and judgment fair.
On May 14, 2019 Plaintiff hadn't shown up for group or medication review and said she was ill but that the provider couldn't come to her house because she wasn't home. (AR 1873). Plaintiff verbalized understanding that she needed to attend her appointments per her medication contract.
On May 17, 2019 Plaintiff stated she was getting into a program for housing and work. (AR 1852).
On May 30, 2019 Plaintiff said she was ill and hadn't been able to contact ACT about missed appointments because her phone wasn't working. (AR 1826). Her son was present and said she could use his phone.
On June 6, 2019 Plaintiff felt she wasn't connecting with her therapist and requested a new one. (AR 1795). Staff noted Plaintiff had not been consistent with the ACT team at all and that she needed to show more dedication to her treatment if she wanted to get better. Plaintiff shared her fears of being homeless and said she had applied for several jobs but not heard back from any of them. Plaintiff was crying with anxious mood and insight fair to poor, but receptive to treatment goals. (AR 1796).
On June 13, 2019 Plaintiff stated she felt very stressed and like her brain wasn't firing right due to a change in medications. (AR 3893). Staff thought she was using and asked about her drug usage, and Plaintiff stated she only smokes marijuana.
On June 20, 2019 staff addressed that Plaintiff's urinalysis was positive for morphine and she repeatedly denied using, stating she only uses THC. (AR 3869). Plaintiff's attitude toward the examiner was anxious, manipulative, and ingratiating, and she had flat affect, depressive thought content, partial insight, and mildly impaired ability to make reasonable decisions. (AR 3866). Her mood was stable but she was not truthful about her drug use and positive urinalysis and continued to blame others for her poor life choices. (AR 2878).
On June 21, 2019 Plaintiff said she had been watching her niece for the past week and they were getting ready to go swimming. (AR 3854). When asked how she was doing, Plaintiff said she was going to start doing things right and get back on track; she wanted to look for a job and secure housing. The counselor noted CPIH had vocational programs and employment specialists who could help Plaintiff with applications.
On July 7, 2019 Plaintiff appeared to be coming down from a high as evidenced by drooping eyelids and slurred speech but denied any drug use. (AR 3829).
On July 18, 2019 Plaintiff said she was starting to feel better and was in a manic state-only sleeping two hours and had a lot of energy-and denied making impulsive choices. (AR 3792).
On July 25, 2019 Plaintiff said she struggled to sleep at night and had nightmares about being chased; she slept a lot during the day and loved it and didn't have bad dreams during the day. (AR 3766). Plaintiff denied having any depression and the counselor noted all her symptoms equaled deep depression: over sleeping, isolating, and not participating in her life. Her homework was to make a list of what she wants in her life.
On July 26, 2019 Plaintiff said she was feeling “pretty good” and trying to get a job and having some anxiety about this because she had to start paying full rent in a few months. (AR 3758). She was observed to be clear and coherent with symptoms at baseline and progress was stable. (AR 3759).
On August 8, 2019 Plaintiff reported depression and agoraphobia with inability to leave the house some days. (AR 3662). She also reported daily auditory hallucinations, paranoia, and increased anxiety due to unemployment and the possibility of losing her housing. Her family relationships were getting better and she had several friends she could tell things to. (AR 3663). The mental status examination was largely normal with flat affect and depressed mood. (AR 3672).
On August 16, 2019 Plaintiff said she couldn't start training with Cafe 54 because she was receiving wound care for an infected spider bite and couldn't lift more than 10 pounds. (AR 3630). She was worried about paying rent, her upcoming disability hearing, and not knowing if she would even be able to keep a job. Staff stated she needed to have a Plan B, and Plaintiff said she had done many jobs but wouldn't last because of her anxiety, not wanting to leave the house, and feeling overwhelmed.
On August 23, 2019 Plaintiff was upset because she only had rent covered through September and didn't know what she was going to do if disability wasn't approved, but she couldn't work or disability would be denied. (AR 3608). Staff suggested she reconsider employment since her living situation was in jeopardy and if she waited too long, she could be homeless.
On August 30, 2019 staff asked what Plaintiff had been doing with her days and she stated she hadn't really been doing anything; staff noted having meaningful activity to engage in could improve the quality of her life. (AR 3604). Plaintiff said she had good days and bad days and didn't want to leave the house on bad days, and she was encouraged to get out of her comfort zone one day at a time.
On September 10, 2019 staff noted Plaintiff had been missing her therapy appointments and she started talking about doctor appointments interfering; staff stated Plaintiff could easily schedule doctors around her therapy and that therapy was important for her treatment, especially with the disability hearing coming up. (AR 3577). Plaintiff said she would do individual therapy but not groups because it was hard enough for her to leave her house and she couldn't be in a small room with a bunch of people.
A note from September 16, 2019 states Plaintiff's goal was changed from part-time employment to obtaining disability benefits and Cafe 54's services were no longer needed. (AR 2825).
On September 24, 2019 staff noted Plaintiff struggled with motivation and willingness to change her circumstances and was relying on her son for financial support and for disability to go through. (AR 3555).
On October 4, 2019 Plaintiff was not home for a visit and her son stated she was at the hospital helping a friend recover. (AR 3537).
On October 10, 2019 Plaintiff said she was extremely stressed out because of her ex not allowing her to see their children; she hadn't been coming to sessions because her phone wasn't working so she didn't know when transportation was coming for her. (AR 3525). Plaintiff was crying and depressed about her children with poor insight and judgment and high cognitive distortions. (AR 3526).
On October 11, 2019 staff called for a visit and Plaintiff said she was fine and was busy helping a friend recover from surgery. (AR 3523).
On October 18, 2019 Plaintiff said she had been “alright” and was having a harder time leaving the house due to anxiety. (AR 3505). When asked about looking for work, Plaintiff stated she was waiting for her disability hearing and she had no Plan B. Staff suggested some jobs that might be less stressful for her, but Plaintiff was not interested in exploring employment options and wanted to wait and see what happened with social security.
On October 25, 2019 Plaintiff was compliant with meds and reported sleeping 4-5 hours and said her mood was “ok, a little better.” (AR 3484).
On November 15, 2019 Plaintiff reported she was doing “pretty good” and had been dog-sitting for a friend. (AR 3433). She stated her chronic pain was part of the reason for her depression and lack of motivation to get up and moving in the mornings, and staff noted chronic pain could be treated. (AR 3433-34).
On November 20, 2019 Plaintiff reported sleep was good, mood irritable, and stressors were two recent deaths in the family and her ex-husband's refusal to let her see their children. (AR 3415). She had not been going to group therapy because of agoraphobia and didn't think it was helpful, and said the decrease in clonazepam had been difficult for her due to ongoing anxiety.
On December 10, 2019 Plaintiff reported Depakote was helpful for mood and she was more social and not as negative, but she wanted to discontinue fluoxetine due to side effect of sexual dysfunction. (AR 3327). She said agoraphobia made it hard to leave the house and it was difficult coming to group.
On December 13, 2019 Plaintiff said she was tired and had been napping after a late night out with her family at the casino. (AR 3321). When staff cautioned her about being at the casino, Plaintiff said “oh, I just watch and talk with my family and take advantage of the free sodas and I only gamble like 5 bucks.” Plaintiff presented with symptoms of anxiety and fatigue with moderately depressed mood and blunted affect. (AR 3322).
On December 31, 2019 Plaintiff admitted she had been avoiding the ACT team and neglecting her therapy, stating she was afraid she would be judged. (AR 3275). Plaintiff was open to taking a stronger initiative in engaging in her recovery, and she was observed to be clear and coherent with progress stable. (AR 3275-76).
On January 23, 2020 Plaintiff said she was compliant with her meds but then said she was not taking Depakote consistently. (AR 3246). Sleep was good with no nightmares, mood was “alright” with no depression, and she thought she was doing “really good” overall.
On January 28, 2020 Plaintiff said she was doing well and had no issues to discuss and was attending therapy again. (AR 3236).
On February 18, 2020 staff noted Plaintiff was no longer scheduled to have counseling sessions because she continually failed to show, and Plaintiff made several excuses that it was a problem with her ride. (AR 3193). Plaintiff then said she had been missing appointments because of an issue with a certain staff member, and the counselor noted Plaintiff had only been scheduled with that staff person once in six weeks. Plaintiff was informed that she needed to start fully participating in treatment or would be discharged.
At a February 27, 2020 med check Plaintiff said her mood was irritable and sleep poor due to stressors. (AR 3166). Later that day Plaintiff called and said she did not want to be discharged from ACT services and her counselor stated that her excuses for missing appointments were not believable and that she had not shown any engagement in several months and seemed to only want medication delivery. (AR 3163). Plaintiff stated she did want services and was placed on a behavioral contract. The counselor documented mood anxious, insight and judgment poor, and malingering. (AR 3164).
On March 3, 2020 Plaintiff asked about her ibuprofen and staff noted it was no longer an active medication. (AR 3155). Plaintiff said she hadn't gotten x-rays of her back because she knows she will need surgery, and staff stated that without proof of things, she can't expect any treatment. Plaintiff discussed that she broke up with her boyfriend and that he and her friend had been living with her for four months; staff stated this was unfair and stressful for Plaintiff's son, who was paying all the bills, and Plaintiff replied that she bought the food. When asked about goals, Plaintiff stated she didn't have any and was waiting for disability and that she enjoyed staying home and sleeping all day. Staff noted this was a sign of depression, and Plaintiff disagreed and said she was happy.
On March 5, 2020 Plaintiff said she was ok and nothing new was going on, and she was going to get her nails done with her sister. (AR 3151).
On March 12, 2020 Plaintiff appeared sad and said she wanted to be normal and it was difficult to have agoraphobia. (AR 3120). She went out to eat but only at certain restaurants that were quiet, and went to the casino with her headphones in but had issues with the lights and a fear of being hurt. The provider noted that Plaintiff does not have agoraphobia and that her biggest issue is trauma; Plaintiff appeared to be having some sensory overload when in public, but the real issue was related to a perceived fear. Plaintiff's mood was somber and she cried throughout the session, and insight and judgment were poor. (AR 3121).
On March 13, 2020 Plaintiff stated her son was supporting them while she waited for disability. (AR 3109). She presented as depressed but denied feeling so, spent most of her days sleeping, and said her house was safe so she enjoyed being there. Plaintiff said she was agoraphobic but goes out frequently, though has fears when she does go out that someone will hurt her and is upset by loud noises and overhead lights. Plaintiff also reported frequent headaches and severe back pain but had been reluctant to get x-rays for a better diagnosis, claiming she got busy and forgot. (AR 3110). The provider noted Plaintiff was stagnant and did not truly participate in her life and did not want to go to school or start working for fear that it would hinder her social security case; she would benefit from intense individual therapy to assist with trauma and being able to function better in society. (AR 3111, 3113).
On March 17, 2020 Plaintiff reported she was feeling better and had finished moving into her 2-bedroom house. (AR 3100). The counselor discussed Plaintiff continuing to go to the casino on a regular basis to make money for things the family needs. Thought content was normal, insight and judgment fair, and mood euthymic with Plaintiff smiling and animated. (AR 3101).
On March 19, 2020 Plaintiff said she had been stressed due to lack of food and worrying that her mother would develop Covid. (AR 2879). She described her mood as stable with no irritability and wanted to continue her medications. She denied sustained episodes of mania/hypomania and thoughts were logical, goal-directed, and focused without signs or symptoms of psychosis. (AR 3093).
On March 24, 2020 Plaintiff was doing ok but feeling more paranoid about things due to Covid. (AR 3085). Thought content was normal with insight and judgment fair, and Plaintiff was engaged and forthcoming. (AR 3086).
On April 7, 2020 Plaintiff was doing ok but tired due to nightmares and waking up with anxiety and felt the therapy sessions were triggering her. (AR 3061). She was loquacious with good insight and judgment, receptive to feedback, and making progress, but cried at times and was dealing with grief and loss issues. (AR 3062).
On April 16, 2020 Plaintiff said her mood was ok with no depression and she was managing the stress of pandemic isolation and worry. (AR 2879). She denied sustained episodes of mania/hypomania and thoughts were logical, goal-directed, and focused without signs or symptoms of psychosis. (AR 3035).
On April 27, 2020 Plaintiff continued to report she was stable with no depression and was doing well overall. (AR 2879). She denied sustained episodes of mania/hypomania and thoughts were logical, goal-directed, and focused without signs or symptoms of psychosis. (AR 2998).
On May 6, 2020 Plaintiff reported multiple psychiatric symptoms in review of her diagnoses, including paranoia and auditory hallucinations, and had not been compliant with her medications for the past week. (AR 2879).
On May 7, 2020 Plaintiff was noted to be a questionable historian, answering with vague statements and giving positive responses to most questions on review of systems. (AR 2963). Plaintiff requested an update on her diagnoses because she was applying to receive disability and questioned the absence of a schizoaffective disorder diagnosis, saying she had been diagnosed with it in the past. (AR 2963-64). She reported periods of decreased sleep for five days, depression, two prior suicide attempts, mumbling auditory hallucinations since age 7, feeling afraid to go outside because something bad was going to happen, difficulty concentrating, irritability, and paranoid thoughts that people are after her to hurt her. The assessment was bipolar disorder NOS with psychotic features, PTSD, agoraphobia, and R/O factitious disorder. (AR 2964).
Not otherwise specified (“NOS”): when there is insufficient opportunity for complete data collection but there is enough information to place the disorder within a particular diagnostic class.
Rule out
On May 13, 2020 Plaintiff first said she was doing well, then said she had a difficult week, and discussed her feelings regarding her children and Mother's Day. (AR 2954). She was observed to be lethargic and disoriented at first, then became more engaged and active and was attentive and receptive to interventions. (AR 2955).
On May 21, 2020 Plaintiff said she had a good week and celebrated her birthday; she was observed to be less symptomatic and receptive to feedback with fair insight and fair to poor judgment. (AR 2940-41).
On June 2, 2020 Plaintiff asked if her counselor would testify at her disability hearing and the counselor agreed but stated Plaintiff's case would be difficult. (AR 2907). The counselor stated she felt strongly that Plaintiff was capable of working and that while Plaintiff did have a mental health diagnosis and trauma that inhibited her functioning at times, she felt Plaintiff could work and would inform the ALJ that Plaintiff could enter the workforce after more therapy. Plaintiff was defensive and irritable with insight fair to poor, judgment poor, and normal thought content. (AR 2908).
On June 4, 2020 Plaintiff described her mood as “alright, more irritable,” had decreased auditory hallucinations, and requested restarting clonazepam to manage panic episodes. (AR 2880). The provider noted background sounds indicated Plaintiff was at a casino.
As of June 10, 2020 Plaintiff's diagnoses were other personal history of psychological trauma; PTSD; bipolar I disorder, current or most recent episode depressed, moderate; and amphetamine type use disorder, severe. (AR 2855).
B. Consultative Examination
On March 31, 2019 Plaintiff saw Dr. Jill Plevell for a psychological consultative examination. (AR 1761). Plaintiff was appropriately dressed and groomed, affect was broad, speech within normal limits, and thought processes logical. She reported she disliked crowds and people because they made her anxious and she had difficulty screening out stimuli like background noise, which caused her to become overwhelmed. Plaintiff last worked as a telemarketer for three weeks and was fired for missing work; she prepared to leave the house but could not make herself leave. (AR 1762). She got along ok with her family and denied difficulty relating appropriately to customers, coworkers, and supervisors in the workplace. Plaintiff said she was able to groom herself and does dishes but the house was a mess; she hates shopping because of the stimuli. Her mother manages her money because she has episodes where she spends it all at the casino.
Plaintiff stated that she has numerous mental health diagnoses but schizoaffective disorder seems most aligned with how she feels. (AR 1762). The ACT team comes to her home to deliver medication and do therapy because of her difficulty leaving the home. Plaintiff reported mood swings starting at age 22; she had stayed up for five days and was irritable, agitated, and talkative with lots of energy and racing thoughts and spent all her money at the casino, then wondered how she would pay rent. Her longest depression was 2 1/2 weeks and she slept all day, had a reduced appetite, low motivation, poor concentration, and isolated herself. Plaintiff reported chronic constant anxiety, panic attacks triggered by people, sounds, lights, and change, hearing voices saying they were going to hurt her, and paranoia. She avoids people and life due to the trauma and is afraid to go out of the house by herself. (AR 1763).
Dr. Plevell concluded that Plaintiff “has a long history of substance use issues and associated sequelae[,]” and that “[m]ood swings are common in early sobriety[; t]hus, the symptom pattern is still unclear.” (AR 1764). Dr. Plevell opined that Plaintiff's condition appeared to most consistent with the diagnoses of opioid use disorder; stimulant use disorder, amphetamine-like substance, in early remission; unspecified mood (affective) disorder (provisional); R/O unspecified psychosis; R/O alcohol use disorder (status unknown); and R/O unspecified neurocognitive disorder. She further stated that “[t]est results appeared likely to be invalid due to incongruity with [Plaintiff's] clinical presentation.”
Provisional: when there is a strong presumption that the full criteria will ultimately be met for a disorder, but not enough information is available to make a firm diagnosis.
Dr. Plevell also completed a Psychological/Psychiatric Medical Source Statement. (AR 1765). She opined that Plaintiff was able to understand, remember, and respond to queries; measures of attention/concentration were consistent with her other measures; she demonstrated a broad affect and logical thought; and she appeared likely to be able to adapt to new procedures, maintain a routine, and detect and respond to hazards.
C. Plaintiff's Testimony
On a Function Report dated January 24, 2019 Plaintiff stated she could not work because anxiety limited her ability to be around people or even leave the house, audio hallucinations caused her to lose focus and she was unable to concentrate, medications made her drowsy and she couldn't stay awake to perform tasks, she needed to take naps because night terrors interrupted her sleep, she was forgetful, and back pain prevented her from standing, walking, lifting, or bending. (AR 237). She described a typical day as eating meals, taking medication, going to appointments, watching tv and movies, and taking naps, and her hobbies were watching tv and coloring. (AR 238, 241). She reported forgetfulness with personal care and needed an alarm and pill box for medications, but could prepare her own meals and do laundry. (AR 239-40). She could not pay bills, have a savings account, or use a checkbook because she couldn't concentrate, could pay attention for less than five minutes, and needed both written and spoken instructions to be repeated. (AR 241-42).
Plaintiff went out three times a week for appointments using public transportation or provided transport and shopped in stores weekly. (AR 240). She reported not spending time with others but also said she spent some time with family and interacted with others on the phone. (AR 241). She had problems getting along with others because she could be irritable and moody but also reported she got along “alright” with authority figures and was respectful. (AR 242-43). She had been fired in the past for missing work due to getting arrested. (AR 243). Plaintiff said she was unable to handle any changes in routine and had panic attacks when stressed.
On January 22, 2019 Plaintiff's mother completed a third-party Function Report and described similar limitations and daily activities. (AR 223-30).
At the hearing before the ALJ Plaintiff testified that the main issue preventing her from working is that she can't leave the house a lot of the time because of anxiety and PTSD. (AR 3946-47). She feels like she can't breathe and the thought of going outside in the noise and being around people scares her. (AR 3947). When asked if she behaves badly toward people, Plaintiff stated she probably isn't the best person to be around because she sometimes puts in earphones to leave the house and kind of secludes herself, and gets irritable when there is a lot of noise, like in Walmart. She tries to avoid things where there are a lot of people and tries to avoid going to Walmart until she absolutely has to. (AR 3947-48). Plaintiff lives with her son, who is the sole provider, and he helps her around the house and will walk with her to take out the trash so she isn't isolated. (AR 3948).
When she doesn't want to isolate, Plaintiff talks on the phone with her family and has two close friends that come over, and on good days she visits them. (AR 3948). Some days are better than others and she has a handful of good days a month, but it's a struggle every day. (AR 3949). When asked if she goes to casinos, Plaintiff said she used to and explained that she realized later that she was on a manic high and not herself. (AR 394950). Plaintiff said that she went at 2 or 3 a.m. when there was hardly anyone there and had her earphones in to block out the sound of the machines; she had it in her head that she wanted to go and didn't stay very long at all, but was able to make it out of her house and at least tried. (AR 3950). Her son had given her money for rent and bills due the next day and she spent it all, thinking she was going to win big. Plaintiff stated she had manic episodes at least monthly, each lasting for a few days, and had depressive episodes where she couldn't get out of bed, didn't shower, and just slept for days. (AR 3950-51).
Plaintiff stated that the only drug she was using was marijuana; she didn't have a medical card but her doctor knew she smoked for her anxiety and seemed to be supportive of it. (AR 3951). It had been almost two years since she used meth or heroin. Plaintiff explained that before she had a correct mental illness diagnosis, medications weren't helping and she was using drugs to self-medicate and help her feel normal. (AR 3952). Now that she was correctly diagnosed and on medication regularly, she had a balance in her life.
Plaintiff last worked in 2017 doing telemarketing and was fired for missing work or being late; she had to pump herself up to do anything and leave the house. (AR 3952-53). She didn't have any problems talking to people on the phone at the call center; the only issue was the light and the noise and having to sit for long periods because of her back. (AR 3953). She didn't think she'd have any problems performing the actual job duties of a telemarketer now, but when it came to being able to leave the house to go to work, she didn't think she was quite ready yet because she had a hard time focusing on what people were telling her and couldn't do simple things like answer a question. (AR 3953-54). When Plaintiff's attorney noted she was doing a good job answering questions, Plaintiff explained that after they had met, she had been preparing herself for a week and had made notes for herself so she wouldn't forget anything. (AR 3954-55).
D. Vocational Testimony
At the hearing before the ALJ, Kathryn Atha testified as a vocational expert. (AR 3958). She classified Plaintiff's work as: telemarketer solicitor, sedentary; fast food worker, light; and dancer, heavy. (AR 3959).
The ALJ asked Atha to assume a hypothetical individual with the following non-exertional limitations: can understand, remember, and apply simple and detailed but not complex instructions; can interact with coworkers, supervisors, and the public but interactions with the public should be occasional and superficial; can maintain concentration, persistence, and pace to complete simple and detailed instructions in 2-hr intervals with customary breaks throughout the workday; and can adapt to changes in a routine work setting. (AR 3960). Atha testified that such an individual could perform the jobs of fast food worker and telemarketer solicitor if a script was provided. Atha further testified that an employer would tolerate an individual being off-task up to 9% or about 45 minutes per workday. (AR 3961).
On questioning by Plaintiff's attorney, Atha testified that in general, employers tolerate absenteeism one day per month, up to ten days per year. (AR 3962).
E. ALJ's Findings
The ALJ found that Plaintiff had the severe impairments of depressive disorder and anxiety disorder. (AR 16). The ALJ considered the Paragraph B criteria set out in the social security disability regulations for evaluating mental disorders and found that Plaintiff had moderate limitations in understanding, remembering, and applying information, and in concentrating, persisting, or maintaining pace. (AR 19-20). The ALJ also found that Plaintiff had mild limitations in interacting with others and the ability to adapt and manage oneself. Because the ALJ did not find “extreme” limitation of one, or “marked” limitation of two, of the four areas of mental functioning, the Paragraph B criteria were not satisfied and the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments. The ALJ also considered the Paragraph C criteria and found that although Plaintiff's mental impairments had persisted for more than two years and Plaintiff received treatment, the evidence failed to show that Plaintiff had achieved only marginal adjustment and therefore concluded that the Paragraph C criteria were not satisfied. (AR 20-21).
The ALJ found that Plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in the decision. (AR 22). The ALJ stated that a review of the objective evidence failed to support the severity of the symptoms alleged, provided a detailed summary of the medical evidence of record, and concluded that Plaintiff was doing well after treatment with improvement of her symptoms. (AR 22-28). The ALJ also cited Plaintiff's activities of caring for her sister's children, caring for friends and family when they were ill, shopping, visiting her grandparents, getting her nails done, eating in restaurants, and regularly going to the casino. (AR 22, 2527).
The ALJ found that the CE opinion and state agency reviewing physician opinions were not persuasive or consistent with the objective medical evidence because the evidence supported severe mental impairments with limitations in Plaintiff's ability to understand, remember, or apply information, and ability to concentrate, persist, or maintain pace. (AR 28).
The ALJ found that Plaintiff had the RFC to perform a full range of work at all exertional levels with the following limitations: can understand, remember, and apply simple and detailed but not complex instructions; can interact with coworkers, supervisors, and the public, but interactions with the public should be occasional and superficial; can maintain concentration, persistence, and pace to complete simple and detailed instructions/tasks in 2-hour intervals with customary breaks throughout the workday; and can adapt to changes in a routine work setting. (AR 21).
Based on the testimony by the VE, the ALJ found that Plaintiff was able to perform her past relevant work as a fast-food worker and telemarketer solicitor. (AR 29). The ALJ therefore concluded that Plaintiff was not disabled. (AR 30).
III. Standard of Review
The Commissioner employs a five-step sequential process to evaluate SSI and DIB claims. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To establish disability the claimant bears the burden of showing he (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) the claimant's RFC precludes him from performing his past work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(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, he does not proceed to the next step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
The findings of the Commissioner are meant to be conclusive. 42 U.S.C. §§ 405(g), 1383(c)(3). 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). As set forth in 42 U.S.C. § 405(g), “[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive.” Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” and is “more than a mere scintilla, but less than a preponderance.” Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (internal quotations and citation omitted). 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). “Rather, a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the Secretary's conclusion.” Aukland, 257 F.3d at 1035 (internal quotations and citations omitted).
The ALJ is responsible for resolving conflicts in testimony, determining credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “When the evidence before the ALJ is subject to more than one rational interpretation, [the court] must defer to the ALJ's conclusion.” Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). This is so because “[t]he [ALJ] and not the reviewing court must resolve conflicts in evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992).
Additionally, “[a] decision of the ALJ will not be reversed for errors that are harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). The claimant bears the burden to prove any error is harmful. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011), superseded on other grounds by 20 C.F.R § 404.1504. An error is harmless where it is “inconsequential to the ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. § 404.1502(a); see also Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). “[I]n each case [the court] look[s] at the record as a whole to determine whether the error alters the outcome of the case.” Molina, 674 F.3d at 1115. In other words, “an error is harmless so long as there remains substantial evidence supporting the ALJ's decision and the error does not negate the validity of the ALJ's ultimate conclusion.” Id. (internal quotations and citation omitted). Finally, “[a] claimant is not entitled to benefits under the statute unless the claimant is, in fact, disabled, no matter how egregious the ALJ's errors may be.” Strauss v. Comm'r Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
IV. Discussion
Plaintiff argues that the ALJ failed to articulate clear and convincing reasons supported by substantial evidence to find that her subjective symptom testimony was not persuasive. Plaintiff further argues that the ALJ failed to question her at the hearing about perceived inconsistencies in the record, and that this constitutes a failure by the ALJ to fully and fairly develop the record because of a failure to decide the case based on evidence adduced at the hearing. Plaintiff alleges these errors are harmful and require remand for reconsideration of the evidence.
The Commissioner contends that the ALJ properly evaluated Plaintiff's subjective symptom allegations and found them not entirely consistent with the evidence because Plaintiff's symptoms improved with treatment and Plaintiff's reported ADL showed that she retained functional capacity. The Commissioner also argues that there was no duty for the ALJ to further develop the record because there is no indication that the evidence was ambiguous or that the record was inadequate to allow for a proper disability determination.
The undersigned has considered the parties' arguments and thoroughly reviewed the record in this matter. For the reasons explained below, the undersigned finds that the ALJ did not fail to conduct a full and fair hearing on Plaintiff's disability claim. The undersigned further finds no harmful error in the ALJ's assessment of Plaintiff's subjective symptom testimony. Accordingly, because the ALJ's decision is supported by substantial evidence of record, the undersigned recommends that the Commissioner's decision be affirmed.
A. Subjective Symptom Testimony
“An ALJ's assessment of symptom severity and claimant credibility is entitled to great weight.” Honaker v. Colvin, 2015 WL 262972, *3 (C.D. Cal. Jan. 21, 2015) (internal quotations and citations omitted). This is because “an ALJ cannot be required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Treicherler v. Comm'r. Soc. Sec. Admin., 775 F.3d 1090, 1106 (9th Cir. 2014). “If the ALJ's credibility finding is supported by substantial evidence in the record, the reviewing court may not engage in second-guessing.” Honaker, 2015 WL 262972 at * 3 (internal quotations and citation omitted).
SSR 16-3p went into effect on March 16, 2016 and supersedes SSR 96-7p, the previous policy governing the evaluation of symptoms. SSR 16-3p, 2016 WL 1119029, *1. The ruling indicates that “we are eliminating the use of the term ‘credibility' from our sub-regulatory policy, as our regulations do not use this term.” Id. Moreover, “[i]n doing so, we clarify that subjective symptom evaluation is not an examination of an individual's character[;] [i]nstead, we will more closely follow our regulatory language regarding symptom evaluation.” Id. This ruling is consistent with the previous policy and clarifies rather than changes existing law. Under either ruling, the ALJ is required to consider the claimant's report of her symptoms against the record-in SSR 96-7p, this resulted in a “credibility” analysis; in SSR 16-3, this allows the adjudicator to evaluate “consistency.” Compare SSR 16-3p with SSR 96-7p (both rely on two step process followed by an evaluation of claimant's testimony and contain the same factors for consideration). “The change in wording is meant to clarify that administrative law judges aren't in the business of impeaching claimants' character,” but “obviously administrative law judges will continue to assess the credibility of pain assertions by applicants, especially as such assertions often cannot be either credited or rejected on the basis of medical evidence.” Cole v. Colvin, 831 F.3d 411, 412 (7th Cir. 2016).
While questions of credibility are functions solely for the ALJ, this Court “cannot affirm such a determination unless it is supported by specific findings and reasoning.” Robbins v. Comm'r Soc. Sec. Admin. 466 F.3d 880, 885 (9th Cir. 2006). “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). “First, 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 v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). “Second, if the claimant meets this first test and there is no evidence of malingering, ‘the ALJ can reject the claimant's testimony about the severity of the symptoms only by offering specific, clear and convincing reasons for doing so.'” Id. (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). “This is not an easy requirement to meet: The clear and convincing standard is the most demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014). Further, “[t]he 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).
While it is permissible for an ALJ to look to the objective medical evidence as one factor in determining credibility, the ALJ's adverse credibility finding must be supported by other permissible evidence in the record. See Bunnell, 947 F.2d at 346-47 (“adjudicator may not discredit a claimant's testimony of pain and deny disability benefits solely because the degree of pain alleged by the claimant is not supported by objective medical evidence”). However, “an ALJ may reject a claimant's statements about the severity of his symptoms and how they affect him if those statements are inconsistent with or contradicted by the objective medical evidence.” Robbins, 466 F.3d at 887. “Factors that an ALJ may consider in weighing a claimant's credibility include reputation for truthfulness, inconsistencies in testimony or between testimony and conduct, daily activities, and unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment.” Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007) (internal quotations and citation omitted).
Here, the ALJ did not make a finding that Plaintiff was malingering; therefore, to support her discounting of Plaintiff's assertions regarding the severity of her mental health conditions, the ALJ had to provide clear and convincing, specific reasons. In her decision, the ALJ found that Plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with the medical evidence and other evidence of record. (AR 22). The ALJ found that the objective evidence did not support the severity of symptoms alleged by Plaintiff and cited to evidence in the behavioral health records showing that while at times Plaintiff was observed to be anxious and depressed with reports of hallucinations and agoraphobia, Plaintiff's symptoms improved with treatment and she reported she was doing well and able to engage in activities such as caring for friends and family during medical crises, babysit, go shopping, and get her nails done. The ALJ provided a detailed summary of Plaintiff's treatment from 2017 to 2020 and noted that Plaintiff had a history of depression and anxiety as well as a significant history of poly-substance abuse, with Plaintiff completing detox treatment and making great strides in her recovery to remain sober. (AR 23-27). The ALJ found, however, that the objective evidence also showed Plaintiff was doing well after her treatment with improvement to her symptoms and was observed to have a normal mood and affect on multiple occasions. (AR 27). The undersigned finds that this is a legally sufficient reason to discount Plaintiff's testimony. See Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with the medical record is a sufficient basis for rejecting the claimant's subjective testimony.”); see also Warre v. Comm'r Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled effectively with medication are not disabling.”).
To the extent that Plaintiff argues the ALJ erred by improperly discounting her testimony based on noncompliance with treatment or medication, the undersigned declines to address this argument further. The ALJ did not state that she found Plaintiff's testimony less persuasive due to any alleged treatment noncompliance, and the Court will not read into the ALJ's decision something that the ALJ did not actually say.
The ALJ further noted that although Plaintiff reported she had agoraphobia/social anxiety and only left home when necessary, the records showed she was able to care for her sister's children, go shopping, get her nails done, and go to the casino on multiple occasions. (AR 27). “There are two grounds for using daily activities to form the basis of an adverse credibility rating. The first is when the activities contradict prior testimony. The second is when the activities meet a threshold for transferable work skills.” Strutz v. Colvin, 2015 WL 4727459, at *5 (D. Or. Aug. 10, 2015). Thus, activities of daily living “may be grounds for discrediting the claimant's testimony to the extent that they contradict the claims of a totally debilitating impairment.” Molina, 674 F.3d at 1112-13. However, “ALJs must be especially cautious in concluding that daily activities are inconsistent with testimony about [disabling symptoms], because impairments that would unquestionably preclude work and all the pressures of a workplace environment will often be consistent with doing more than merely resting in bed all day.” Garrison, 759 F.3d at 1016. “Recognizing that ‘disability claimants should not be penalized for attempting to lead normal lives in the face of their limitations,' we have held that ‘[o]nly if [her] level of activity were inconsistent with [a claimant's] claimed limitations would these activities have any bearing on [her] credibility.'” Garrison, 759 F.3d at 1016 (alterations in original) (quoting Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)).
Here, to the extent that Plaintiff alleges a totally debilitating mental impairment, Plaintiff's own statements regarding her activities and ability to care for herself belie that contention. While Plaintiff testified that she could not work because she is unable to leave her home due to anxiety and paranoia and is scared to go outside and be around others, the record documents that Plaintiff was able to babysit her sister's children, care for ill friends and family, visit her grandparents, get her nails done, eat in restaurants, and go to the casino. Plaintiff's treatment providers noted on multiple occasions that Plaintiff's allegations of disabling anxiety and agoraphobia were inconsistent with her stated activities. Further, while Plaintiff testified that the thought of being around people scared her, the record also documents her statements that she got along well with others and never had a problem with coworkers. Thus, while Plaintiff's self-reported activities do not necessitate a finding that she has no difficulties in functioning, the record also does not compel the conclusion that Plaintiff urges that she is completely unable to function in a work setting. Accordingly, the undersigned finds that the ALJ could properly consider that Plaintiff's activities were inconsistent with her allegations of completely disabling symptoms. See Molina, 674 F.3d at 1112-13; Valentine, 574 F.3d at 693 (ALJ properly discounted claimant's testimony where ADL suggested claimant's claims about severity of limitations were exaggerated); Missell v. Colvin, 2014 WL 2048082, *5 (D. Ariz. May 19, 2014) (ALJ found claimant's symptom testimony was inconsistent with his daily activity testimony; court noted finding claimant not credible for this reason was different than finding claimant not disabled for this reason and substantial evidence supported ALJ's reasoning); see also Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (“a federal court's review of Social Security determinations is quite limited . . . [and courts] leave it to the ALJ to determine credibility, resolve conflicts in the testimony, and resolve ambiguities in the record” (internal quotations and citation omitted)).
As noted above in the factual summary, Plaintiff testified at hearing that she used to go to the casino during manic episodes when she wasn't quite herself and was doing a lot of risk-taking. The undersigned notes that the record also documents Plaintiff's statements that she went to the casino during a night out with her family, and that she went to the casino regularly to make money for things her family needed. See AR 3100, 3321.
Finally, while Plaintiff contends that the ALJ erred in discounting her testimony, Plaintiff fails to argue any specific limitations that the ALJ should have assessed and included in the RFC or hypothetical to the VE based on her statements. The undersigned notes that while Plaintiff's counsel had the opportunity at hearing to question the VE, counsel failed to propose an alternate hypothetical with additional non-exertional limitations. Counsel thus failed to argue how Plaintiff's self-reported symptoms would translate to specific functional limitations that might preclude her from performing her past work, or any other work. Nor is there any medical testimony opining to more restrictive mental health limitations than those assessed by the ALJ. Cf. Caceres v. Colvin, 2015 WL 4040727, at *3 (W.D. Wash. July 1, 2015) (finding claimant met burden to show bipolar disorder was a severe impairment where providers opined that she “experienced severe limitations specifically and exclusively as a result of her bipolar disorder”). As discussed above, the ALJ was sensitive to Plaintiff's complaints, finding that Plaintiff's depressive disorder and anxiety disorder were severe impairments, and that she had mild and moderate functional limitations under the Paragraph B criteria. (AR 18-20). The ALJ's decision contains a thorough overview of Plaintiff's mental health treatment. (AR 22-27). After summarizing these records, the ALJ stated that Plaintiff's symptoms were granted every reasonable benefit of the doubt in finding that Plaintiff could perform work at all exertional levels with mental limitations, but that any allegation of greater limitations was simply not supported by the overall evidence. (AR 27). While the evidence may be subject to more than one rational interpretation, and perhaps one more favorable to Plaintiff, it is not this Court's role to second-guess it. See Batson, 359 F.3d at 1198; Matney, 981 F.2d at 1019; Missell, 2014 WL 2048082 at *6 (“This Court cannot substitute its judgment for the ALJ simply because the evidence could be given more than one possible meaning.”).
The Court recognizes that “a person who suffers from a mental illness will have better days and worse days, so a snapshot of any single moment says little about her overall condition[,]” Punzio v. Astrue, 630 F.3d 704, 710 (9th Cir. 2011), and that “it is error to reject a claimant's testimony merely because symptoms wax and wane,” Garrison, 759 F.3d at 1017. Here, the undersigned's review of the record shows that at times Plaintiff's symptoms improved and at times they worsened, but the longitudinal record documents that Plaintiff did have improvement over time with treatment compliance, both as reported by Plaintiff and as noted by her providers. The undersigned further finds that the ALJ took Plaintiff's mental health complaints into consideration, as reflected in the RFC assessment limiting Plaintiff to a work setting with only occasional and superficial contact with the public and no complex instructions. Plaintiff essentially asks the Court to reweigh the evidence more favorably to her, but Plaintiff's alternate interpretation is not enough to assign error to the ALJ's findings. See Shaibi v. Berryhill, 883 F.3d 1102, 1108 (9th Cir. 2017) (claimant argued ALJ could have come to a different conclusion, but where court could not “say that the ALJ's interpretation of the available evidence was not rational, the ALJ's conclusions were supported by substantial evidence”). While the Court examines the record as a whole, it may neither reweigh the evidence nor substitute its judgment for that of the ALJ. Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001); Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). “When the evidence is susceptible to more than one rational interpretation, and the [ALJ's] conclusion is one such rational interpretation, that interpretation must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
The Court wholly rejects Plaintiff's argument that while the objective evidence might not be dispositive, it can support a finding of disability, and that it is therefore irrelevant that some of the evidence could support a finding of non-disability. This is plainly not the law.
In sum, the undersigned finds that the ALJ provided legally sufficient reasons to find that Plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with the record because she had improvement in her behavioral health symptoms with medication and treatment, and because to the extent that Plaintiff alleges a totally debilitating impairment, her ADL contradict that. “[T]he ALJ's interpretation of [the claimant's] testimony might not be the only reasonable one. But it is still a reasonable interpretation and is supported by substantial evidence; thus, it is not [this Court's] role to second-guess it.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); see also Magallanes, 881 F.2d at 750 (“We must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation.”); Batson, 359 F.3d at 1196. Further, even if the ALJ did err in relying on any of the above reasons to find that Plaintiff's subjective symptom testimony was not entirely consistent, any error was harmless because the ALJ's ultimate disability determination was adequately supported by substantial evidence in the record. See Batson, 359 F.3d at 1197 (so long as there remains “substantial evidence supporting the ALJ's decision” and the error “does not negate the validity of the ALJ's ultimate conclusion,” such error is deemed harmless and does not warrant reversal).
B. Duty to Fully and Fairly Develop the Record
While it is the claimant's burden to prove that he is disabled, Valentine, 574 F.3d at 689, “the ALJ has a special duty to develop the record fully and fairly and to ensure that the claimant's interests are considered, even when the claimant is represented by counsel.” Mayes, 276 F.3d at 459. “The ALJ is not a mere umpire at such a proceeding, but has an independent duty to fully develop the record, . . . [and] it is incumbent upon the ALJ to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts.” Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003) (citation omitted). However, an ALJ's duty to conduct an appropriate inquiry is only triggered when there is ambiguous evidence, or the ALJ makes a “finding that the record is inadequate to allow for proper evaluation of the evidence.” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001); 20 C.F.R. § 404.1520b.
Here, Plaintiff contends that the ALJ failed to develop the record fully and fairly at hearing because the ALJ failed to ask Plaintiff about perceived inconsistencies between her ADL and her statements regarding the limiting effects of her conditions. Because the ALJ discounted Plaintiff's subjective symptom testimony, in part, on this basis, and ultimately denied benefits, Plaintiff contends that the ALJ's failure to question her on this issue was harmful error. This argument is a red herring. Plaintiff was represented by the same counsel at hearing as she is in this appeal, and Plaintiff's counsel has extensive experience in social security disability work and has appeared in a multitude of cases before this Court. It is specious for counsel to contend that the ALJ failed a duty to question Plaintiff about a few specific activities that the ALJ later cited as reason, in part, to find Plaintiff's testimony less than persuasive, when counsel is certainly well aware that daily activities are frequently cited in ALJ decisions as inconsistent with testimony alleging totally disabling impairments.
This argument is even more dubious in light of the testimony at hearing. After the VE testified, the ALJ asked Plaintiff if there was anything else she wanted to add about jobs or anything else. (AR 3962). Plaintiff stated that she didn't really get to explain exactly how her mental illness impacts her on a daily basis. The ALJ directed counsel to question Plaintiff but counsel declined, stating Plaintiff had gone into great detail and nothing more needed to be said. (AR 3962-63). Counsel now appears to be attempting to cover her own mistake in failing to question Plaintiff further when the ALJ specifically gave her the opportunity to do so. Plaintiff is ultimately responsible for providing the evidence to prove disability, and the ALJ's duty to develop the record does not allow a claimant to shift the claimant's own burden of proving disability to the ALJ. Valentine, 574 F.3d at 689; Mayes, 276 F.3d at 459; 20 C.F.R. § 404.1512(a).
Further, it does not appear that the record in this case was ambiguous or inadequate for the ALJ to make a decision. The record reflects Plaintiff's own reasons and explanations as to why or how she was able to participate in certain activities, which are the same explanations she asserts in this appeal and alleges the ALJ failed to ask her about. For example, Plaintiff reported to her treatment provider that she was able to eat in certain restaurants that were quiet and while wearing her headphones, and Plaintiff testified at hearing that she had gone to the casino while in a manic state and that she chose to go around 2 a.m. when there weren't as many people and wore her headphones to block out the noise. That Plaintiff's counsel now urges the Court to interpret Plaintiff's testimony and ADL differently than the ALJ does not mean that the ALJ's decision is wrong, let alone that the ALJ failed a duty. Nor has Plaintiff shown that additional oral testimony was needed for the ALJ to properly evaluate the evidence and make a disability determination.The ALJ had medical records from the applicable time period and written statements from Plaintiff and her mother, and specifically stated that the disability determination would be made after considering all the evidence of record, not just the hearing testimony. (AR 3963). Thus, in this case, “[t]here is no evidence of missing but relevant pieces of the puzzle, such as missing reports or ambiguous conclusions.” De Botello, 2011 WL 3292401 at *8.
As discussed above, the ALJ took Plaintiff's mental health conditions into consideration by finding that Plaintiff had severe mental impairments with moderate limitations in her ability to understand, remember, or apply information, and concentrate, persist, or maintain pace, and mild limitations in interacting with others and adapting or managing oneself. (AR 18-20). This is also reflected in the RFC assessment limiting Plaintiff to simple and detailed but not complex instructions in the workplace and only occasional and superficial interactions with the public. (AR 21).
The undersigned likewise rejects Plaintiff's argument that the record was inadequate due to its breadth and that Plaintiff was therefore unable to anticipate and address at hearing each page that the ALJ might find dispositive. While the record is indeed extensive, there is also significant overlap and repetition, as well as some information that is simply irrelevant. Further, Plaintiff's argument confuses the issues-neither the Court nor the ALJ would expect counsel to cover each page of a record at hearing, but whether a record is 400 pages or 4000 pages, it is ultimately Plaintiff's burden to prove that she is disabled. See De Botello v. Astrue, 2011 WL 3292401, at *8 (D. Ariz. Aug. 1, 2011) (“To put an additional burden on the ALJ to discover the root of every subjective complaint, even if it is not supported by the unambiguous evidence before him or her, would be to improperly shift the Plaintiff's burden in proving disability.”).
In sum, the record demonstrates that the ALJ provided Plaintiff with a full and fair hearing and that there was sufficient and adequate evidence for the ALJ to rely on in adjudicating Plaintiff's application for benefits. As the Ninth Circuit has stated: “The words are clear and unambiguous: an ‘ALJ's duty to develop the record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence.'” McLeod, 640 F.3d at 885 (quotingMayes, 276 F.3d at 45960). That is simply not the case here, and the undersigned finds no error on this point
V. Remedy
A federal court may affirm, modify, reverse, or remand a social security case. 42 U.S.C. § 405(g). Absent legal error or a lack of substantial evidence supporting the ALJ's findings, this Court is required to affirm the ALJ's decision. After considering the record as a whole, this Court simply determines whether there is substantial evidence for a reasonable trier of fact to accept as adequate to support the ALJ's decision. Valentine, 574 F.3d at 690. “[T]he key question is not whether there is substantial evidence that could support a finding of disability, but whether there is substantial evidence to support the Commissioner's actual finding that claimant is not disabled.” Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997). Here, the undersigned finds that the ALJ's decision is supported by substantial evidence and is free from legal error. See Batson, 359 F.3d at 1196 (“When evidence reasonably supports either confirming or reversing the ALJ's decision, we may not substitute our judgment for that of the ALJ.”); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (where “the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ”).
VI. Recommendation
For the foregoing reasons, the Magistrate Judge recommends that the District Court, after its independent review, affirm the decision of the Commissioner of Social Security.
Pursuant to 28 U.S.C. §636(b), any party may serve and file written objections within fourteen days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen days after being served with a copy thereof. Fed.R.Civ.P. 72(b). No reply to any response shall be filed. See id. If objections are not timely filed, then the parties' rights to de novo review by the District Court may be deemed waived. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).