Opinion
CV-20-02441-DLR-ESW
02-09-2022
Bobby Tracy, Plaintiff, v. Commissioner of the Social Security Administration, Defendant.
TO THE HONORABLE DOUGLAS L. RAYES, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
HONORABLE EILEEN S. WILLETT UNITED STATES MAGISTRATE JUDGE
Pending before the Court is Bobby Tracy's (“Plaintiff”) appeal of the Social Security Administration's (“Social Security”) denial of his application for disability insurance benefits. The Court has jurisdiction to decide Plaintiff's appeal pursuant to 42 U.S.C. § 405(g). Under 42 U.S.C. § 405(g), the Court has the power to enter, based upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the case for a rehearing.
After reviewing the Administrative Record (“A.R.”) and the parties' briefing (Docs. 24, 26, 27), the Court finds that the Administrative Law Judge's (“ALJ”) decision contains harmful legal error. For the reasons explained in Section II below, it is recommended that the decision be reversed and the case remanded to the Commissioner of Social Security for further proceedings.
I. LEGAL STANDARDS
A. Disability Analysis: Five-Step Evaluation
The Social Security Act (the “Act”) provides for disability insurance benefits to those who have contributed to the Social Security program and who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1). To be eligible for benefits based on an alleged disability, the claimant must show that he or she suffers from a medically determinable physical or mental impairment that prohibits him or her from engaging in any substantial gainful activity. 42 U.S.C. § 423(d)(1)(A). The claimant must also show that the impairment is expected to cause death or last for a continuous period of at least 12 months. Id.
To decide if a claimant is entitled to Social Security benefits, an ALJ conducts an analysis consisting of five questions, which are considered in sequential steps. 20 C.F.R. § 404.1520(a). The claimant has the burden of proof regarding the first four steps:
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).
Step One : Is the claimant engaged in “substantial gainful activity”? If so, the analysis ends and disability benefits are denied. Otherwise, the ALJ proceeds to Step Two.
Step Two: Does the claimant have a medically severe impairment or combination of impairments? A severe impairment is one which significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520(c). If the claimant does not have a severe impairment or combination of impairments, disability benefits are denied at this step. Otherwise, the ALJ proceeds to Step Three.
Step Three: Is the impairment equivalent to one of a number of listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity?
20 C.F.R. § 404.1520(d). If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one that is presumed to be disabling, the ALJ proceeds to the fourth step of the analysis.
Step Four: Does the impairment prevent the claimant from performing work which the claimant performed in the past? If not, the claimant is “not disabled” and disability benefits are denied without continuing the analysis. 20 C.F.R. § 404.1520(f). Otherwise, the ALJ proceeds to the last step.
If the analysis proceeds to the final question, the burden of proof shifts to the Commissioner:
Parra, 481 F.3d at 746.
Step Five: Can the claimant perform other work in the national economy in light of his or her age, education, and work experience? The claimant is entitled to disability benefits only if he or she is unable to perform other work. 20 C.F.R. § 404.1520(g). Social Security is responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy that the claimant can do, given the claimant's residual functional capacity, age, education, and work experience. Id.
B. Standard of Review Applicable to ALJ's Determination
The Court must affirm an ALJ's decision if it is supported by substantial evidence and is based on correct legal standards. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). Although “substantial evidence” is less than a preponderance, it is more than a “mere scintilla.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938)). It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.
In determining whether substantial evidence supports the ALJ's decision, the Court considers the record as a whole, weighing both the evidence that supports and detracts from the ALJ's conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). If there is sufficient evidence to support the ALJ's determination, the Court cannot substitute its own determination. See Morgan v. Comm'r of the Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) (“Where the evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.”); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). This is because the ALJ, not the Court, is responsible for resolving conflicts and ambiguities in the evidence and determining credibility. Magallanes, 881 F.2d at 750; see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
The Court also considers the harmless error doctrine when reviewing an ALJ's decision. This doctrine provides that an ALJ's decision need not be remanded or reversed if it is clear from the record that the error is “inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citations omitted); Molina, 674 F.3d at 1115 (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”) (citations omitted).
II. PLAINTIFF'S APPEAL
A. Procedural Background
Plaintiff, who was born in 1978, has worked as a salesperson, customer service representative, bowling alley/desk clerk, pin setter mechanic-automatic, tool and equipment rental clerk, retail store manager, and yard laborer supervisor. (A.R. 24). In 2017, Plaintiff applied for disability insurance benefits. (A.R. 185-193). Plaintiff's application alleged that on January 1, 2017, Plaintiff became limited in his ability to work due to chronic obstructive pulmonary disease, common variable immunodeficiency disorder, sensory neuropathy, idiopathic progressive neuropathy, microscopic colitis, and enlarged liver and spleen. (A.R. 59). Social Security denied the applications on October 26, 2017. (A.R. 91-94). On November 1, 2017, upon Plaintiff's request for reconsideration, Social Security affirmed the denial of benefits. (A.R. 95-99). Plaintiff sought further review by an ALJ, who conducted a hearing on November 7, 2019. (A.R. 31-56).
In her January 28, 2020 decision, the ALJ found that Plaintiff is not disabled within the meaning of the Social Security Act. (A.R. 16-30). The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Social Security Commissioner. (A.R. 1-6). On December 21, 2020, Plaintiff filed a Complaint (Doc. 1) requesting judicial review and reversal of the ALJ's decision.
B. The ALJ's Application of the Five-Step Disability Analysis
1. Step One: Engagement in “Substantial Gainful Activity”
The ALJ determined that Plaintiff has not engaged in substantial gainful activity from January 1, 2017 (the alleged onset date) through September 30, 2018 (the date last insured). (A.R. 18). Neither party disputes this determination.
2. Step Two: Presence of Medically Severe Impairment/Combination of Impairments
The ALJ found that Plaintiff has the following severe impairments: (i) chronic obstructive pulmonary disease; (ii) obstructive sleep apnea; (iii) common variable immunodeficiency disorder; (iv) gastroesophageal reflux disease; and (v) idiopathic progressive neuropathy. (A.R. 18). This determination is undisputed.
3. Step Three: Presence of Listed Impairment(s)
The ALJ determined that Plaintiff does not have an impairment or combination of impairments that meets or medically equals an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the Social Security regulations. (A.R. 19). Neither party disputes the ALJ's determination at this step.
4. Step Four: Capacity to Perform Past Relevant Work
The ALJ found that Plaintiff has retained the residual functional capacity (“RFC”) to perform
sedentary work as defined in 20 CFR 404.1567(a) except he could occasionally climb ramps and stairs, but never climb ladders, ropes, and scaffolds. He could occasionally balance. He should have avoided concentrated exposure to extreme
cold and extreme heat, vibration, fumes, odors, dusts, gases, poor ventilation and hazards such as moving machinery and unprotected heights.(A.R. 19). Based on the assessed RFC and testimony of the Vocational Expert (“VE”) at the administrative hearing, the ALJ concluded that Plaintiff is not capable of performing his past relevant work. (A.R. 27-28). Neither party disputes that Plaintiff is unable to perform his past relevant work. However, at the hearing, Plaintiff testified that he uses a motorized scooter and manual wheelchair that were prescribed to him. (A.R. 46). Plaintiff argues that the ALJ's RFC assessment erroneously fails to account for his need to use a wheelchair. (Doc. 24 at 8-10).
5. Step Five: Capacity to Perform Other Work
The VE testified that based on Plaintiff's RFC, Plaintiff would be able to perform the requirements of representative occupations such as cashier, telephone solicitor, and document preparer. (A.R. 25). The ALJ found that the VE's testimony was consistent with the information in the Dictionary of Occupational Titles and that the jobs identified by the VE existed in significant numbers in the national economy. After considering the VE's testimony, Plaintiff's age, education, work experience, and RFC, the ALJ determined that Plaintiff can make a successful adjustment to other work and is therefore not disabled. (Id.). In challenging the ALJ's Step Five determination, Plaintiff emphasizes that the VE testified that if Plaintiff required the use of a wheelchair, “[i]t would eliminate all work[.]” (A.R. 54).
C. Plaintiff's Challenge to the ALJ's RFC Assessment
An RFC assessment is an “administrative finding” that is reserved to the Commissioner. See 20 C.F.R. § 404.1527(d)(2). The RFC is “the most [a claimant] can still do despite [his or her] limitations.” 20 C.F.R. § 404.1545(a)(1). In formulating an RFC, the ALJ weighs medical and other source opinions, including lay opinions, as well as the claimant's credibility. See Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1226 (9th Cir. 2009). The RFC assessment must be supported by substantial evidence, and “must consider limitations and restrictions imposed by all of an individual's impairments, even those that are not ‘severe.'” Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (quoting SSR 96-8p).
Here, the ALJ's decision concludes: “The claimant indicated that a wheel chair was necessary, but the record does not establish use of a wheelchair as medically necessary.” (A.R. 22). The ALJ's decision recounts that a doctor referred Plaintiff to physical therapy for evaluation of Plaintiff's ambulation. (A.R. 21). However, as shown below, the ALJ's decision incorrectly states that “[t]here is nothing in the record to indicate that Dr. Pandey at Brain and Spine ordered a wheelchair for the claimant.” (Id.).
The record reflects that Dr. MacDonald was Plaintiff's treating physician at Brain and Spine Center, not Dr. Pandey. (A.R. 786-805).
Plaintiff's treating physician Paul MacDonald, MD diagnosed Plaintiff with idiopathic progressive neuropathy and myoclonus. (A.R. 552). In a May 5, 2017 treatment note, Dr. MacDonald states: “Pain and subjective weakness in all extremities appears to be due to small fiber neuropathy. . . . Although he may have weakness due to pain, I am not sure that he requires a wheelchair. We will refer him to physical therapy to assess his need for ambulation.” (Id.). Plaintiff presented at San Tan Physical Therapy for an appointment on May 24, 2017. (A.R. 854-55). The treating physical therapist wrote in a progress note that “Due to [Plaintiff's] progressive weakness, inc pain with walking, and fall risk I recommend a w/c” and indicated that the plan was for Plaintiff “to obtain a wheelchair for use at home and in the community.” (A.R. 855). A July 17, 2017 record reflects that Dr. MacDonald prescribed a wheelchair for Plaintiff. (A.R. 934-35).
On September 18, 2018, Plaintiff was seen by Nurse Practitioner David Rope. (A.R. 1278-81). The progress note indicates that Plaintiff had “[r]apidly progressive weakness.” (A.R. 1279). NP Rope indicated that a motorized scooter would improve Plaintiff's ability to “travel from room to room in his house.” (A.R. 1278). The record reflects that NP Rope prescribed Plaintiff a motorized scooter. (A.R. 901). The motorized scooter was delivered to Plaintiff on February 11, 2019. (A.R. 896).
The undersigned finds that the ALJ's RFC assessment fails to properly consider Plaintiff's wheelchair prescription. As mentioned, the VE testified that if Plaintiff required the use of a wheelchair, “[i]t would eliminate all work[.]” (A.R. 54). The ALJ's error thus is not harmless because it is not “inconsequential to the ultimate disability determination.” Molina, 674 F.3d at 1115. This error alone requires remand.
Next, Plaintiff asserts that the ALJ improperly discounted Plaintiff's symptom testimony based on the finding that Plaintiff's use of a wheelchair and motorized scooter are not medically necessary. (Doc. 24 at 10). Because the ALJ's decision does not reflect that the ALJ properly considered Plaintiff's prescriptions for a wheelchair and motorized scooter, the undersigned finds that the ALJ erred by discounting Plaintiff's testimony on the ground that it was not medically necessary for him to use a wheelchair. Finally, Plaintiff asserts that the ALJ erred in weighing Plaintiff's testimony because the “ALJ made no inquiry to Plaintiff or his Counsel at the hearing regarding medical records from Arizona Pain and Spine.” (Id. at 11). As the Commissioner observes (Doc. 26 at 6), the ALJ asked Plaintiff's counsel at the hearing “Do you have anything additional to submit?” (A.R. 33). Plaintiff's counsel indicated that there were records ordered from Arizona Allergy Associates, but stated that he did not think “there's any need to keep the record open unless [the ALJ] would like to review those as well.” (A.R. 33-34). The undersigned does not find that the ALJ committed harmful error by not inquiring regarding the records from Arizona Pain and Spine. See Dobstaff v. Astrue, No. CV09-2128-PHX-NVW, 2010 WL 5088228, at *2 (D. Ariz. Dec. 8, 2010) (“[I]f a claimant's attorney goes through the ALJ hearing process without objecting to the ALJ's failure to follow an evidence-gathering rule like SSR 83-20, it creates the potential for sandbagging.”); Pearson v. Fair, 808 F.2d 163, 166 (1st Cir. 1986) (“[A] party cannot sit silently by, await the entry of judgment, and only then (having seen the result and having been disappointed thereby) bemoan the court's failure to take evidence.”). In asserting that the matter should be remanded to the Commissioner, Plaintiff also challenges certain reasons the ALJ provided for discounting Plaintiff's symptom testimony. Plaintiff first asserts that the ALJ incorrectly stated that Plaintiff claimed diarrhea to be a disabling symptom. (Doc. 24 at 10). The Commissioner does not dispute that Plaintiff never alleged diarrhea to be a disabling symptom. (Doc. 26 at 6). The undersigned finds that the ALJ improperly discounted Plaintiff's testimony on that basis.
D. Remand for Further Proceedings
Ninth Circuit jurisprudence “requires remand for further proceedings in all but the rarest cases.” Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1101 n.5 (9th Cir. 2014). The Ninth Circuit, however, has adopted a test to determine when a case should be remanded for payment of benefits in cases where an ALJ has improperly rejected claimant testimony or medical opinion evidence. Id. at 1100-01; Garrison, 759 F.3d at 1020. This test is commonly referred to as the “credit-as-true” rule, which consists of the following three factors:
1. Has the ALJ failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion? Treichler, 775 F.3d at 1100-01.
2. Has the record been fully developed, are there outstanding issues that must be resolved before a disability determination can be made, or would further administrative proceedings be useful? Id. at 1101. To clarify this factor, the Ninth Circuit has stated that “[w]here there is conflicting evidence, and not all essential factual issues have been resolved, a remand for an award of benefits is inappropriate.” Id.
3. If the improperly discredited evidence were credited as true, would the ALJ be required to find the claimant disabled on remand? Id.; Garrison, 759 F.3d at 1020.
Where a court has found that a claimant has failed to satisfy one of the factors of the credit-as-true rule, the court does not need to address the remaining factors. Treichler, 775 F.3d at 1107 (declining to address final step of the rule after determining that the claimant has failed to satisfy the second step). Moreover, even if all three factors are met, a court retains the discretion to remand a case for additional evidence or to award benefits. Id. at 1101-02. A court may remand for further proceedings “when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act.” Garrison, 759 F.3d at 1021. In Treichler, the Ninth Circuit noted that “[w]here an ALJ makes a legal error, but the record is uncertain and ambiguous, the proper approach is to remand the case to the agency.” 775 F.3d at 1105.
After examining the record, the undersigned finds outstanding issues of fact to be resolved through further proceedings. For instance, a July 27, 2018 treatment note from Inbalance Physical Therapy reflects a recommendation that Plaintiff utilize a front wheel walker for “short household distances.” (A.R. 993). The treatment note states: “[s]tandard WC mobility not assessed at this time, secondary to not having his manual WC present.” (Id.). An August 10, 2018 treatment note reiterates that Plaintiff should use a front wheel walker “at all times” and that Plaintiff “agreed to FWW use.” (A.R. 1009). A December 27, 2017 record states that a wheelchair was needed for “long distance due to weakness, endurance.” (A.R. 968). A February 28, 2018 record states that “Pt is able to ambulate short distances.” (A.R. 987). The undersigned finds that the record is ambiguous as to the extent, if any, that it is medically necessary for Plaintiff to utilize a wheelchair or motorized scooter. Moreover, although the VE testified that all work would be eliminated if Plaintiff required the use of a wheelchair, it is not clear whether the VE's testimony would change if a wheelchair was not medically necessary in all situations. The undersigned recommends that the Court remand the case for further proceedings.
III. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Court reverse the decision of the Commissioner of Social Security and remand this case to the Commissioner for further proceedings.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.