Opinion
CV-20-0526-TUC-SHR (LCK)
03-28-2022
Lisa Scatto, Plaintiff, v. Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable Lynnette C. Kimmins United States Magistrate Judge
Plaintiff Lisa Scatto brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision by the Commissioner of Social Security (Commissioner). Plaintiff filed an opening brief, Defendant responded, and Plaintiff replied. (Docs. 24, 28, 29.) Pursuant to the Rules of Practice of the Court, this matter was referred to Magistrate Judge Kimmins for Report and Recommendation. Based on the pleadings and administrative record, the Magistrate Judge recommends the District Court, after its independent review, remand for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
Scatto was born in December 1968 and was 49 years of age at the alleged onset date of her disability. (Administrative Record (AR) 169.) Scatto has a limited work history, earning over $5000 in only one calendar year; her last relevant work, ending in 2007, was as a case manager for the Salvation Army. (AR 180-81, 183, 208, 70-73.) Scatto filed an application for Supplemental Security Income (SSI) in June 2018, alleging disability from the first of that month. (AR 169-78.) Scatto's application was denied upon initial review (AR 96-111) and on reconsideration (AR 114-26). A telephonic hearing was held on April 20, 2020. (AR 61-95.) The AL J then found Scatto was not disabled. (AR 30-41.) The Appeals Council denied Scatto's request for review of that decision. (AR 1.)
The ALJ found Scatto had severe impairments of depressive disorder, anxiety disorder, polysubstance abuse and dependence, hypertension, and lumbar degenerative disc disease. (AR 32.) The ALJ determined Scatto had the Residual Functional Capacity (RFC) to perform medium work with several limitations: only occasional changes in duties and social interaction with coworkers and supervisors, limited to a straightforward exchange of information without negotiation, persuasion, conflict resolution, teamwork, or tandem work; only frequently use ramps and stairs, stoop, kneel, crouch, and crawl; never climb ladders, ropes, or scaffolds, work at unprotected heights, engage in occupational driving, or interact with the general public; and only simple, routine tasks at an average pace without strict time or production demands. (AR 35.) The ALJ concluded at Step Five, based on the testimony of a vocational expert, that Scatto could perform the jobs of kitchen helper, floor waxer, and dayworker, all of which existed in significant numbers in the national economy. (AR 40.)
STANDARD OF REVIEW
The Commissioner employs a five-step sequential process to evaluate SSI claims. 20 C.F.R. § 416.920; 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. § 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, she does not proceed to the next step. 20 C.F.R. § 416.920(a)(4).
“The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to deny benefits only “when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is so because the ALJ “and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019 (quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner's decision, however, “cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence that supports as well as detracts from the Commissioner's conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).
DISCUSSION
Scatto argues the ALJ erred in failing to provide clear and convincing reasons for rejecting her symptom testimony. In general, “questions of credibility and resolution of conflicts in the testimony are functions solely” for the ALJ. Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)). However, “[w]hile an ALJ may certainly find testimony not credible and disregard it . . . [the court] cannot affirm such a determination unless it is supported by specific findings and reasoning.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884-85 (9th Cir. 2006); Bunnell v. Sullivan, 947 F.2d 341, 345-346 (9th Cir. 1995) (requiring specificity to ensure a reviewing court the ALJ did not arbitrarily reject a claimant's subjective testimony); SSR 16-3p. “To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007).
Initially, “the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment ‘which could reasonably be expected to produce the pain or other symptoms alleged.'” Id. at 1036 (quoting Bunnell, 947 F.2d at 344). The ALJ found Scatto had satisfied part one of the test by proving impairments that could produce the symptoms alleged. (AR 35.) Next, “unless an ALJ makes a finding of malingering based on affirmative evidence thereof, he or she may only find an applicant not credible by making specific findings as to credibility and stating clear and convincing reasons for each.” Robbins, 466 F.3d at 883; Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003) (holding an ALJ can reject claimant testimony if he finds evidence of malingering). The ALJ did not make a finding of malingering. Therefore, to support her discounting of Scatto's assertions regarding the severity of her symptoms, the ALJ had to provide clear and convincing, specific reasons. See Robbins, 466 F.3d at 883.
In her initial disability report, Scatto stated that she was limited in her ability to work by borderline personality, extreme anxiety and panic attacks, depression, uncontrollable high blood pressure, mood swings, and nerve damage; she reported that the conditions caused pain and other symptoms. (AR 206.) In disability reports submitted for purposes of appeal, Scatto stated that her mental condition had declined due to her phobias and depression, she was spending more time indoors and engaging in more isolation, and she had less interest and energy for performing activities. (AR 217, 220, 224, 227.)
At the April 2020 hearing, Scatto testified that she did not think she could work because of her mental health issues - depression and panic attacks that made it difficult for her to leave her house, along with a personality disorder - and two lumbar discs that were "bone-on-bone" and made it difficult to stand, sit, or lay down. (AR 74.) She said a friend helped with housework because she could not stand long enough to do it alone. (AR 78.) Her daughter's father would drive her to their daughter's volleyball games, but she could stay only long enough to see their daughter hit a few times. (AR 79.) Scatto stated that she hadn't left the house in months and, "I can't even express to you how hard it is for me to go out." (AR 79-80.) Because of COPD, Scatto stated that she was unable to go upstairs in her apartment. (AR 81.) Scatto reported that she could sit only for 5 to 10 minutes before needing to walk around, and standing in one place caused pain to go up to her neck. (AR 82.) After sleeping flat on her back, she needed help to get up. (Id.) Scatto summarized that, due to her back, she could not sit or stand for an extended period and, due to her mental health issues, she was scared to leave her apartment. (AR 83.)
The ALJ found that Scatto's testimony about her limitations was not fully consistent with the objective medical evidence and other evidence of record. (AR 36.) The ALJ specified that she discounted her mental health symptom testimony because she was "most often observed with good cognitive functioning." (AR 37.) The ALJ noted that Scatto's mental state was most notably altered when she tested positive for illicit drugs or experienced a drug overdose, but otherwise her limitations were only moderate. (AR 37, 39.) The ALJ relied upon Scatto's mental status exams, which frequently revealed that she exhibited good concentration, insight, judgment, and thought process. (Id.) The ALJ discounted Scatto's back symptoms because the objective evidence reflected only mild degenerative changes and exam results were inconsistent. (AR 37-38, 39.)
Defendant contends that the ALJ articulated four rationales for discounting Scatto's symptom testimony: evidence of improvement; her limitations resulted from situational stressors not medical impairments; drug-seeking behavior; and inconsistency with treatment records. The Court concludes, however, that it cannot affirm the ALJ's decision based on the first three reasons cited by Defendant, because the ALJ did not rely upon them in reaching her decision. See Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).
Scatto noted that, in discussing the Paragraph B criteria at Step Three, the ALJ mentioned two of Scatto's actions that might be construed as activities of daily living: attending her daughter's volleyball games and buying street drugs. (Doc. 24 at 12 (citing AR 34).) However, the ALJ did not mention Scatto's activities of daily living as a reason to discount her symptom testimony. In her responsive brief, the Commissioner did not contend otherwise. Instead, she cited several other reasons she believed the ALJ discounted Scatto's symptom testimony. Therefore, the Court does not evaluate whether Scatto's activities of daily living provided a clear and convincing reason to discount Scatto's symptom testimony. Further, the passing reference to attending volleyball games and buying street drugs did not offer a comprehensive overview of Scatto's activities of daily living and, without more, did not provide a basis to discount her symptom testimony.
First, Defendant argues that Scatto's testimony was not consistent with the record evidence of improvement in her symptoms. Defendant contends that Scatto's mental health symptoms responded to medication, and she reported doing much better and feeling great. In summarizing Scatto's mental health records, the ALJ noted that, in May 2018, Scatto's treatment records revealed she was anxious and depressed. (AR 36.) In June and July, Scatto reported a significant improvement in her anxiety and depression since a medication adjustment. (Id.) However, the ALJ also documented that, by early August 2018, Scatto had increased anxiety and was not leaving her home. (Id.) The ALJ stated that, at various points in 2018, Scatto reported "increased anxiety or hopelessness, and at times became tearful in counseling sessions." (Id.) The ALJ did not follow this record summary with a finding that discounted Scatto's testimony due to improvement in response to treatment. Further, the ALJ's record summary identified that Scatto's anxiety and depression went up and down over time, not that she experienced sustained improvement from June 2018 onward. See Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) (finding ALJ erred in rejecting claimant's mental health symptom testimony "merely because symptoms wax and wane in the course of treatment. Cycles of improvement and debilitating symptoms are a common occurrence, and in such circumstances it is error for an ALJ to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working.").
Second, Defendant contends the ALJ discounted Scatto's symptom testimony because her limitations stemmed from situational stressors and not a medical impairment. The ALJ noted that Scatto was tearful during therapy sessions when discussing particular life experiences, such as an overdose, using street drugs, breaking up with her boyfriend, and drug-seeking behaviors. (AR 36.) However, the ALJ did not discount Scatto's symptom testimony on this basis. Instead, she was noting various events that exacerbated Scatto's mental health conditions (or could be interpreted as evidence of her impairments). (Id.) Although an ALJ might properly rely upon situational stressors to undermine a claimant's symptom testimony under certain circumstances, the ALJ did not identify relevant circumstances in this case. The case cited by Defendant is inapposite to the facts before this Court. In Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998), the ALJ found that the claimant may have been seeking disability benefits due to a stressful living situation rather than physical pain she reported as resulting from a medical impairment. Thus, the court in Tidwell did not hold that if a situational stressor causes a limitation, rather than a medical impairment, an ALJ may discount a claimant's testimony on that basis. Tidwell, instead, indicates that an ALJ may discount a claimant's symptom testimony if there is evidence that a claimant is seeking benefits for a reason unrelated to her medical impairments. The ALJ did not cite any evidence to suggest that Scatto engaged in such behavior.
Third, Defendant contends the ALJ properly discounted Scatto's symptom testimony based on her drug-seeking behavior, which evidenced a lack of candor that undermined the reliability of her symptom testimony. In summarizing Scatto's mental health treatment, the ALJ noted that, in 2018, Scatto told her counselor about "engaging in medication seeking behaviors." (AR 36.) The ALJ did not connect this testimony to any impairment or symptom and did not identify it as a reason to discount Scatto's symptom testimony. Further, according to SSR 16-3p, it is not proper for an ALJ to discount a claimant's testimony based on a general assessment of her honesty:
Adjudicators must limit their evaluation to the individual's statements about his or her symptoms and the evidence in the record that is relevant to the individual's impairments. In evaluating an individual's symptoms, our adjudicators will not assess an individual's overall character or truthfulness in the manner typically used during an adversarial court litigation. The focus of the evaluation of an individual's symptoms should not be to determine whether he or she is a truthful person.
“The ALJ must specifically identify what testimony is credible and what testimony undermines the claimant's complaints.” Morgan v. Comm 'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). Pursuant to SSR 16-3p, the ALJ's decision “must contain specific reasons for the weight given to the individual's symptoms . . . and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms.” The ALJ only clearly articulated one reason for discounting Scatto's symptom testimony - that it was inconsistent with the objective medical evidence. With respect to Scatto's mental health impairments, the ALJ discounted her symptom testimony solely based upon her treatment providers' observations regarding her mental status (cognitive functioning, concentration, insight, judgment, and thought process). (AR 36, 37, 39.) Similarly, with respect to Scatto's back impairment, the ALJ rejected her symptom testimony solely based on objective imaging and medical examinations. (AR 3738, 39.)
If the objective medical evidence fully explained a claimant's symptoms, then her testimony would be irrelevant. Symptom testimony factors into the ALJ's decision only when the claimant's stated symptoms are not substantiated fully by the objective medical evidence. SSR 16-3p. Thus, it is error for an ALJ to discount credibility solely because a claimant's symptoms are not substantiated by the medical evidence. Id.; Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). As the objective evidence was the only basis for the ALJ's rejection of Scatto's symptom testimony, it is insufficient to sustain it. Thus, the ALJ erred by failing to identify clear and convincing reasons, supported by substantial evidence, to reject Scatto's symptom testimony with respect to her mental health and back impairments.
CONCLUSION AND RECOMMENDATION
A federal court may affirm, modify, reverse, or remand a social security case. 42 U.S.C. § 405(g). When a court finds that an administrative decision is flawed, the remedy should generally be remand for “additional investigation or explanation.” INS v. Ventura, 537 U.S. 12, 16 (2006) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)); see also Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004). Here, Scatto seeks solely a remand for further consideration. The Court finds that is the proper remedy.
Notably absent from the record are any medical opinions of Scatto's functional limitations by a provider that examined Scatto. Her symptom testimony reflected a significant impairment in leaving her apartment due to anxiety. However, no one that had met Scatto evaluated her ability to attend work on a regular basis (or other relevant limitations). Additionally, in summarizing Scatto's mental health records for purposes of evaluating her symptom testimony and RFC, the ALJ barely touched upon medical appointments occurring after August 2018. The record contains medical documents with dates through February 2020. (AR 673-800.) The majority of those records reveal Scatto experiencing significant anxiety and depression, including crying and restlessness at appointments, isolating at home, inability to sleep, and one report of hearing voices. (AR 673, 683, 685, 696, 750, 754, 757, 761, 762, 765, 778, 782, 796.) Finally, as noted by Scatto, the ALJ did not discuss the most recent MRI of her spine from March 2019. (AR 817-24.) Upon remand, the ALJ should consider the entirety of the record and determine whether a consultative exam is warranted.
The Magistrate Judge recommends that the District Court remand this matter to the ALJ for a new hearing and further proceedings, pursuant to sentence four of 42 U.S.C. § 405(g). 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: CV-20-0526-TUC-SHR.