Opinion
1:19-cv-01303-CL
01-25-2023
VERONICA M. G.,[1] Plaintiff, v. COMMISSIONER, Social Security Administration, Defendant.
FINDINGS AND RECOMMENDATION
MARK D. CLARKE, UNITED STATES MAGISTRATE JUDGE
Plaintiff Veronica M. G. seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying her application for supplemental security income (“SSI”) under Title XVI of the Social Security Act (the “Act”). This Court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). For the reasons provided below, the Commissioner's decision should be REVERSED and this case should be REMANDED for further proceedings.
PROCEDURAL BACKGROUND
Plaintiff filed an application for SSI in April 2016 with an alleged onset date of January 1, 2012. Tr. 166. Plaintiff later amended her alleged onset date to April 26, 2016. Tr. 11. Plaintiff's application was denied initially in July 2016, and again upon reconsideration in March 2017. Tr. 64-100. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), Tr. 114, and a hearing was held on June 20, 2018, Tr. 11. On August 3,2018, the ALJ issued a decision finding Plaintiff not disabled within the meaning of the Act. Tr. 21. The Appeals Council denied Plaintiffs request for review, making the ALJ's decision the final decision of the Commissioner. Tr. 1. Plaintiff s timely appeal followed.
“Tr.” citations are to the Administrative Record. ECF No. 11.
FACTUAL BACKGROUND
Plaintiff was 41 years old on her alleged onset date. Tr. 20. She has a high school education and past relevant work as a fast-food worker. Tr. 19-20. Plaintiff alleges disability based on epilepsy and anxiety. Tr. 193.
DISABILITY ANALYSIS
A claimant is disabled if he or she is unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which... has lasted or . can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act.” Keyser v. Comm'r. Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks the following series of questions:
1. Is the claimant performing “substantial gainful activity”? 20 C.F.R.: §§ 404.1520(a)(4)(i); 416.920(a)(4)(i). This activity is work involving significant mental or physical duties done or intended to be done for pay or profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing such work, she is not disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is not performing substantial gainful activity, the analysis proceeds to step two.
2. Is the claimant's impairment “severe” under the Commissioner's regulations? 20 C.F.R. §§ 404.1520(a)(4)(H); 416.920(a)(4)(h). Unless expected to result in death, an impairment is “severe” if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1521(a); 416.921(a). This impairment must have lasted or must be expected to last for a continuous period of at least 12 months. 20 C.F.R. §§ 404.1509; 416.909. If the claimant does not have a severe impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis proceeds to step three.
3. Does the claimant's severe impairment “meet or equal” one or more of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the impairment does not meet or equal one or more of the listed impairments, the analysis proceeds to the “residual functional capacity” (“RFC”) assessment.
a. The ALJ must evaluate medical and other relevant evidence to assess and determine the claimant's RFC. This is an assessment of work-related activities that the claimant may still perform on a regular and, continuing basis, despite any limitations imposed by his or her impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c); 416.920(e); 416.945(b)-(c). After the ALJ determines the claimant's RFC, the analysis proceeds to step four.
4. Can the. claimant perform his or her “past relevant work” with this RFC assessment? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant cannot perform his or her past relevant work, the analysis proceeds to step five.
5. Considering the claimant's RFC and age, education, and work experience, is the claimant able to make an adjustment to other work that exists in significant numbers in the national economy? If so, then the claimant is
not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v); 404.1560(c); 416.960(c). If the claimant cannot perform such work, he or she is disabled.See also Bustamante v. Massanari, 262 F.3d 949, 954-55 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 954. The Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the Commissioner must show that the claimant can perform other work that exists in significant numbers in the national economy, “taking into consideration the claimant's residual functional capacity, age, education, and work experience.” Tackett v. Apfel, 180 F.3d 1094,1100 (9th Cir. 1999) (internal citations omitted); see also 20 C.F.R. §§ 404.1566; 416.966 (describing “work which exists in the national economy”). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v), If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 954-55; Tackett, 180 F.3d at 1099.
THE ALJ'S DECISION
At step one, the AL J found that Plaintiff met the insured requirements of the Act and had not engaged in substantial gainful activity since her application date. Tr. 13. At step two, the AL J found that Plaintiff had the following severe impairments: anxiety disorder, obesity, degenerative disc disease, depression, and seizure. Id. At step three, the ALJ found that Plaintiff did not have an impairment or combination thereof that met or medically equaled the severity of a listed impairment. Tr. 14. The ALJ found that Plaintiff had the following RFC:
[T]he claimant had the residual functional capacity to perform medium work as defined in 20 CFR 416.967(c) with the following additional limitations: the claimant should not work around people but can work with things. She should have no exposure to
dangerous machinery/heights. She is able to work independently on 1 to 3 step simple tasks.Tr. 16. At step four, the ALJ determined that Plaintiff was unable to perform any past relevant work. Tr. 19. At step five, the ALJ found, in light of Plaintiff s age, education, work experience, and RFC, a significant number of jobs existed in the national economy such that Plaintiff could sustain employment despite her impairments. Tr. 20. The ALJ thus found Plaintiff was not disabled within the meaning of the Act. Tr. 21.
STANDARD OF REVIEW
The reviewing court must affirm the Commissioner's decision if it is based on the proper legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “‘Substantial evidence' means ‘more than a mere scintilla but less than a preponderance,' or more clearly stated, ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). In reviewing the Commissioner's alleged errors, this Court must weigh “both the evidence that supports and detracts from the [Commissioner's] conclusions.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
If the decision of the Appeals Council is the final decision of the Commissioner, this Court must review the decision of the Appeals Council to determine whether that decision is supported by substantial evidence. Howard v. Heckler, 782 F.2d 1484 (9th Cir. 1986). Where the evidence before the ALJ or Appeals Council is subject to more than one rational interpretation, the Commissioner's conclusion must be upheld. Batson, 359 F.3d at 1198 (citing Andrews, 53 F.3d at 1041). “However, a reviewing court must consider the entire record as a whole and may not affirm simply by isolating a ‘specific quantum of supporting evidence.'” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock, 879 F.2d at 501). Additionally, a reviewing court “cannot affirm the [Commissioner's] decision on a ground that the [Administration] did not invoke in making its decision.” Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050,1054 (9th Cir. 2006) (citations omitted). Finally, a court may not reverse the Commissioner's decision on account of an error that is harmless. Id. at 1055-56. “[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.” Shinseki v. Sanders, 556 U.S. 396,409 (2009).
Even where findings are supported by substantial evidence, “the decision should be set aside if the proper legal standards were not applied in weighing the evidence and making the decision.” Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42 U.S.C. § 405(g), the reviewing court has the power to enter, upon the pleadings and transcript record, a judgment affirming, modifying, or reversing the decision of the Commissioner, with or without remanding the case for a rehearing.
DISCUSSION
Plaintiff asserts that remand is warranted for five reasons: (1) the ALJ erred by failing to evaluate whether Plaintiffs fibromyalgia was a severe impairment at step two and failing to consider the effects of Plaintiff s fibromyalgia in subsequent steps; (2) the ALJ erred by improperly rejecting Plaintiffs subjective syhiptom testimony; (3) the ALJ erred in rejecting medical opinion evidence; (4) the ALJ erred in relying on the vocational expert; and (5) Plaintiffs new evidence submitted after her hearing creates a reasonable possibility that it would change the outcome Of the ALJ's decision. Pl.'s Br. 6-7, ECF No. 26. The Court addresses each argument in turn.
I. Step Two Finding
As mentioned, Plaintiff argues that the ALJ erred by failing to evaluate whether Plaintiff's fibromyalgia was a severe impairment at step two and failing to consider the effects of Plaintiffs fibromyalgia in subsequent steps. Id. at 9-11. At step two, the Commissioner must determine whether the claimant has a “medically severe impairment or combination of impairments.” Stout v. Comm'r Soc. Sec Admin., 454 F.3d 1050, 1052 (9th Cir. 2006); see also Keyser v. Comm 'r of Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). A severe impairment “significantly limits” a claimant's “physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1522(a), 416.922(a). The step two threshold, however, is low:
[A]n impairment can be considered as not severe only if it is a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the' individual's ability to work.... [T]he severity regulation is to do no more than allow the Secretary to deny benefits summarily to those applicants with impairments of a minimal nature which could never prevent a person from working.Social Security Ruling (“SSR”) 85-28,1985 WL 56856, at *2 (Nov. 30,1984) (internal quotations omitted). Put differently, the step two inquiry is “a de minimis screening device to dispose of groundless claims.” Edlund v. Massanari, 253 F.3d 1152,1158 (9th Cir. 2001) (quoting Smolen v. Chater, 80F.3d 1273,1290 (9th Cir. 1996)).
The Ninth Circuit has held, however, that an error in failing to designate a specific impairment as severe can be harmless where it does not prejudice a claimant because the ALJ nonetheless considers the impact of the impairment in formulating the claimant's RFC. Burch, 400 F.3d at 682 (holding that any error in omitting an impairment at step two was harmless when step two was resolved in claimant's favor); Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (finding harmless error where the ALJ neglected to find “antisocial personality disorder” severe but nonetheless considered the claimant's “personality disorder” in crafting the RFC).
Here, the ALJ resolved step two partially in Plaintiffs favor by finding she had the following severe impairments: “anxiety disorder, obesity, degenerative disc disease, depression, and seizure.” Tr. 13. However, the ALJ also assessed Plaintiff s fibromyalgia as non-severe:
The claimant has also been diagnosed with fibromyalgia. While she was referred to a rheumatologist; there are no treatment records . from a rheumatologist in the record. She was noted to have tenderness at most of the tender point areas (Exhibit 15F/15). She reported some improvement of symptoms with water therapy (Exhibit. 14F). She did not attend a recommended chronic pain class, which suggests that her symptoms are not as limiting as she has alleged to this Agency (Exhibit 15F/8). As there is no evidence to suggest that the claimant's fibromyalgia would have any more than a minimal effect upon her ability to perform basic work activities, it is a non-severe impairment.Tr. 14.
An independent review of the record reveals that Plaintiffs fibromyalgia was severe. Plaintiff repeatedly presented with pain and fibromyalgia symptoms. See, e.g, Tr. 833 (April, 2017), 836 (July 2017), 838 (August 2017), 840 (September 2017), 842 (October 2017), 844 (November 2017), 846 (April 2018). Plaintiff took Gapapentin to manage her fibromyalgia pain. Tr. 839. Plaintiff also testified that she had her first appointment with a rheumatologist scheduled for July 25, 2018. Tr. 35. The Ninth Circuit has noted that the cause of fibromyalgia.is unknown, there is no cure, and its symptoms are entirely subjective. See Rollins v. Massanari, 261 F.3d 853, 855 (9th Cir. 2001). Fibromyalgia is diagnosed entirely based on a patient's reports of pain and other symptoms; there are no clinical laboratory tests to confirm the diagnosis. See Benecke, 379 F.3d at 589. Additionally, the ALJ failed to examine Plaintiffs fibromyalgia pursuant to SSR 12-2p. See SSR 12-2p, 2012 WL 3104869, at *2-4 (S.S.A. Jul. 25, 2012); see also Revels, 874 F.3d at 656-57. As such, the ALJ's determination that Plaintiff's fibromyalgia was non-severe is not supported by substantial evidence.
II. Subjective Symptom Testimony
The ALJ found that “the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” Tr. 16. Plaintiff assigns error to the ALJ's evaluation of her subjective symptom testimony, and in particular with respect to her anxiety. Pl.'s Br. 7, ECF No. 26.
When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms complained of, and the record contains no affirmative evidence of malingering, “the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.” Smolen v. Chater, 80 F.3d 1273,1281 (9th Cir. 1996). A general assertion that the claimant is not credible is insufficient; instead, the ALJ “must state which... testimony is not credible and what evidence suggests the complaints are hot credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be “sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citation omitted). If the ALJ's finding regarding the claimant's subjective symptom testimony is “supported by substantial evidence in the record, [the court] may not engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
Social Security Ruling (“SSR”) 16-3p provides that “subjective symptom evaluation is, . not an examination of an individual's character,” and requires that the ALJ consider all the evidence in an individual's record when evaluating the intensity and persistence of symptoms.SSR 16-3p, 2017 WL 5180304, at *2 (S.S.A. Oct. 25,2017). The ALJ must examine “the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Id. at *4.
Effective March 28, 2016, SSR 16-3p superseded and replaced SSR 96-7p, which governed the assessment of claimant's “credibility.” See SSR 16-3p, 2017 WL 5180304, at *1-2 (S.S.A. Oct. 25, 2017).
Plaintiff testified she was taking medication for her anxiety and depression. Tr. 42. Plaintiff testified that she is “always worrying,” scared, sometimes does not leave her house, and never leaves her home by herself. Tr. 48. Plaintiff cried during her testimony and testified that she frequently experiences crying spells due to her anxiety. Id. Plaintiff noted that her anxiety “went out of control” after she was harassed at work and expressed her fear of being harassed or yelled at again. Tr. 210, 215. Plaintiff testified that she cannot not sleep at night because she is anxious all day. Tr. 210. Plaintiff also struggles to clean and do her laundry due to her headaches, body aches, and anxiety. Tr. 212. Plaintiff testified that her pain worsens when she is anxious. Tr. 49. Plaintiff also testified she had not driven in months due to her pain. Tr. 41-42. Plaintiff testified that she often feels like spaces are closing in on her, that she is frequently in a “lot of pain” and “can't get out of bed half the time because it hurts so much,” and that she gets “sharp, shooting pain, zapping pain, and... cramps” in her legs. Tr. 45-47. Plaintiff testified . that her fibromyalgia causes her headaches. Tr. 54.
Here, the ALJ rejected Plaintiffs subjective symptom testimony. Tr. 16. The Commissioner asserts the ALJ supplied four valid rationales that undermined Plaintiffs subjective complaints: (A) limited work history; (B) an inconsistency with her activities of daily living; (C) failure to follow treatment; and (D) an inconsistency with the medical record. Def.'s Br. 6-10, ECF No. 29.
A. Work History
The Commissioner argues that Plaintiffs limited work history undermined her subjective complaints. Def.'s Br. 7, ECF No. 29. The ALJ determined:,
A review of the claimant's work history shows that the claimant worked only sporadically prior to the amended alleged disability onset date, which raises a question as to whether the claimant's continuing unemployment is actually due to medical impairments. The claimant told her counselor that she was not interested in employment opportunities (Exhibit 4F/1). This statement, along with the claimant's poor earnings record, raises concerns about the claimant's motivation to seek and maintain employment.Tr. 18. A claimant's “poor work history” may be a valid reason to discount testimony. See Thomas, TT& F.3d at 959. However, the treatment note the ALJ cited is from May 2016, which is' after Plaintiffs amended alleged onset date of April 26,2016. See Tr. 366. The assessment notes that “[Plaintiff] is reportedly unemployed and is not interested in unemployment opportunities and need not be a focus of treatment at this time.” Id. Because this assessment was recorded after Plaintiffs amended alleged onset date, it does not undermine Plaintiffs position that she was unable to work due to her disability. As such, Plaintiffs work history was not a clear and convincing reason to reject Plaintiffs testimony.
B. Activities of Daily Living
The Commissioner contends the ALJ properly rejected Plaintiffs testimony based upon her activities of daily living. Def.'s Br. 7-8, ECF No. 29. Activities of daily living can form the basis for an ALJ to discount a claimant's testimony in two ways: (1) where the activities “contradict [a claimant's] testimony”; or (2) as evidence a claimant can work if the activities “meet the threshold for transferable work skills.” Orn, 495 F.3d at 639. A claimant, however, need not be utterly incapacitated to receive disability benefits, and sporadic completion of minimal activities is insufficient to support a negative credibility finding. Vertigan v. Halter, 260 F.3d 1044,1050 (9th Cir. 2001); see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (requiring the level of activity to be inconsistent with the claimant's alleged limitations to be relevant to her credibility).
The ALJ cited Plaintiffs ability to bathe on a daily basis, take care of her personal hygiene and grooming, cook, do dishes, shop, drive, manage her finances, watch television, work on her computer, read, and photograph as being contrary to her testimony. Tr. 17. The Ninth Circuit, however, has consistently held that such a modest level of activity is not sufficient to reject subjective complaints. See Vertigan, 260 F.3d at 1050 (“This court has repeatedly asserted that the mere fact that a Plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from her credibility as to her overall disability. One does not need to be ‘utterly incapacitated' in order to be disabled.” (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989))).
Moreover, the ALJ's discussion of Plaintiff s daily activities failed to explain “what symptom testimony [was] not credible and what facts in the record lead to that conclusion.” Smolen, 80 F.3d at 1284; see also Dodrill, 12 F.3d at 918. The ALJ noted only that “[t]hese activities are not what one would expect from a disabled individual.” Tr. 17; but see Vertigan, 260 F.3d at 1050 (“One does not need to be ‘utterly incapacitated' in order to be disabled.” (citation omitted)). An “ALJ's mere recitation of a claimant's activities is insufficient to support rejection of the claimant's testimony as a matter of law.” David J. v. Comm'r, Soc. Sec. Admin., No. 3:20-cv-00647-MK, 2021 WL 3509716, at *4 (D. Or. Aug. 10,2021) (citation omitted). In other words, other than generally summarizing Plaintiffs activities, the ALJ failed to explain how any of the listed activities undermined her subjective symptom testimony. Therefore, this was not a clear and convincing reason to reject Plaintiffs testimony. See id.
C. Treatment History
The Commissioner next asserts that the ALJ properly rejected Plaintiffs testimony based on conservative treatment. Def.'s Br. 8, ECF No. 29.
In some circumstances, a claimant's treatment record can form the basis upon which to reject a claimant's testimony. See, e.g, Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (noting that “conservative treatment” was sufficient to discount the claimant's testimony -regarding allegedly disabling pain); Molina v. Astrue, 674 F.3d 1104, 1113-14 (9th Cir. 2012) (“[A] claimant's failure to assert a good reason for not seeking treatment... can cast doubt on the sincerity of the claimant's pain testimony.”) (citation omitted). However, adjudicators are required to consider “any explanations that the individual may provide, or other information in the case record, that may explain” the claimant's failure to follow a treatment plan. Orn, 495 F.3d at 638 (quotation omitted).
Here, Plaintiff's treatment history was not a clear and convincing reason to reject her testimony for,at least two reasons. First, the record reflects Plaintiffs difficulty in maintaining - insurance coverage. See id. For example, Plaintiff testified that she was looking for a new mental health counselor because of insurance issues. Tr. 44. “[A]lthough a conservative course of treatment can undermine allegations of debilitating pain, such fact is not a proper basis for rejecting the claimant's credibility where the claimant has a good reason for not seeking more aggressive treatment.” Carmickle, 533 F.3d at 1162; see, e.g, Trevizo, 871 F.3d at 680-81 (citing Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995)).
Second, the ALJ failed to consider the impact of Plaintiff s mental health impairments on her course of treatment. See 20 C.F.R. §§ 404.1529(c)(iv-v), 416.929(c)(iv-v) (explaining that the effectiveness of treatment is a relevant factor AL Js may consider when evaluating subjective symptom testimony). The Ninth Circuit has explained that failure to seek or follow a prescribed course of mental health treatment is a problematic reason to discredit mental health complaints. See Regennitter v. Comm'r of Soc. Sec. Admin., 166 F.3d 1294, 1299-300 (9th Cir. 1999) (“Indeed, we have particularly criticized the use of a lack of treatment to reject mental health complaints both because mental illness is notoriously underreported and because ‘it is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation.'” (quoting Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996))).
As such, the treatment record was not a clear and convincing reason to reject Plaintiffs testimony.
D. Medical Record
As noted, the Commissioner asserts that the ALJ properly discounted Plaintiffs allegations because they were inconsistent with the objective medical evidence. Def.'s Br. 9, ECF No. 29. In some circumstances, an ALJ may reject subjective complaints where the claimant's “statements at her hearing do not comport with objective medical evidence in her medical record.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). However, a lack of objective evidence may not be the sole basis for rejecting a claimant's subjective complaints. See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001). Moreover, especially in the mental health context, an ALJ may not cherry-pick isolated instances of favorable psychological symptoms when the record as a whole reflects long-standing psychological disability. See Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014); see also Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014).
An independent review of the record establishes that Plaintiff's subjective complaints are amply supported in the record. Multiple treatment notes reflect that Plaintiff suffered from pain throughout her body. See, e.g., Tr. 323, 450, 466, 528-29, 532-33, 551-52, 556, 725, 741, 763, 783, 801, 822, 833, 836-38 (legs and lower extremities); 323, 450, 452, 581, 676, 725, 741, 763, 783, 801, 822, 833, 846 (back); 323, 342, 408, 840-46 (joint); 323, 763, 783, 801, 822, 846 (neck); 676, 725, 763, 783, 801, 822 (arms); 342,408,457 (abdomen); 626, 654, 702, 706, 762 (entire body). Multiple treatment notes also reflect that Plaintiff suffered from anxiety and panic attacks, see, e.g., Tr. 342, 358, 361, 365, 366, 368, 377-78, 384, 389, 392, 406, 408, 424, 425, 427, 434, 452, 465, 466, 475-80, 482, 551, 833, 851, as well as depression, see, e.g., Tr. 450, 452, 465. Additionally, multiple treatment notes reflect that Plaintiff suffered from headaches and seizures. See, e.g., Tr. 342, 357, 366, 384, 408, 434, 833, 846. As such, the medical record was not a clear and convincing reason to reject Plaintiff's testimony.
III. Medical Evidence
Plaintiff assigns error to the ALJ's evaluation of the opinion of her examining physician, Claudia Lake, Psy.D. See Pl.'s Br. 13-14, ECF No. 26. The ALJ is responsible for resolving conflicts in the medical record, including conflicting doctors' opinions. Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). The law distinguishes between the opinions of three types of physicians: treating physicians, examining physicians, and non-examining physicians. See 20 C.F.R. §§ 404.1527,416'927. The opinions of treating physicians are generally accorded greater weight than the opinions of non-treating physicians. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).
The Commissioner has issued revised regulations changing this standard for claims filed after March 27, 2017. See . 20 C.F.R. § 404.1520c. Plaintiffs claim was filed before March 27, 2017, and therefore is controlled by 20 C.F.R. §§404.1527, 416.927.
A treating physician's opinion that is not contradicted by the opinion of another doctor can be rejected only for “clear and convincing” reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991) (citation omitted). Where a treating physician's opinion is contradicted, however, the ALJ must provide “specific, legitimate reasons” for discrediting the opinion. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). An ALJ can meet this burden by “setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (citation omitted). Similarly, “the opinion of an examining doctor, even if contradicted by another doctor, can only be rejected for specific and legitimate reasons that are supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31. Lastly, “[a]n ALJ ‘may reject the opinion of a non-examining physician by reference to specific evidence in the medical record.'” Jason W. v. Comm'r of Soc. Sec. Admin., No. 6:18-cv-00483-JR, 2018 WL 6701273, at *2 (D. Or. Dec. 20, 2018) (citing Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998)).
Dr. Lake served as Plaintiffs examining psychologist in June 2016. Tr. 375. Dr. Lake noted Plaintiffs self-reports that she had panic and anxiety since childhood. Id. Dr. Lake noted that Plaintiffs affect was “very anxious.” Tr. 377. Dr. Lake opined that Plaintiff would have difficulty accepting instructions from supervisors; interacting with coworkers and the public; maintaining regular attendance in the workplace; completing a normal workday/workweek " without interruptions from a psychiatric condition; and dealing with usual stress encountered in the workplace. Tr. 378-79.
The ALJ assigned “little weight” to the portion of Dr. Lake's opinion stating that Plaintiff would have difficulty maintaining regular attendance, completing a normal workday/workweek without interruptions from a psychiatric condition, and dealing with usual stress encountered in the workplace. Tr. 18. The ALJ gave this portion “little weight” because it was “heavily based on the claimant's reports of anxiety and [is] not internally consistent with mental status testing.” Tr. 18.
The Commissioner first argues that the ALJ properly rejected Dr. Lake's opinion because it relied on Plaintiffs subjective complaints. Def's Br. 10, ECF No. 29. Although an ALJ may in some circumstances discount an opinion that relies on subjective reports, the ALJ's rejection of Dr. Lake's opinion here was improper. The Ninth Circuit has explained that self-reports in the psychiatry context differ from other treatment settings. See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (“Psychiatric evaluations may appear subjective, especially compared to evaluation in other medical fields. Diagnoses will always depend in part on the patient's self-report, as well as on the clinician's observations of the patient. But such is the nature of psychiatry.... Thus, the rule allowing an ALJ to reject opinions based on self-reports does not apply in the same manner to opinions regarding mental illness.”). As such, this was not a specific and legitimate reason to reject the opinion.
The Commissioner also argues that the ALJ properly rejected Dr. Lake's opinion because it was inconsistent with her exam findings. Def.'s Br. 11-12, ECF No. 29. An inconsistency within a doctor's opinion can constitute a specific and legitimate reason to reject it. See Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995) (explaining that internal contradiction is a specific and legitimate reason for rejecting a treating physician's opinion). Further, the more consistent1 the opinion is with the evidence as a whole, the greater weight the opinion should be accorded. 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4). However, here, the ALJ failed to identify an actual, inconsistency.
Dr. Lake's opinion that Plaintiff would have difficulty maintaining regular attendance, completing a normal workday without interruptions, and dealing with usual stress encountered in the workplace is not inconsistent with Dr. Lake's mental status examination. For instance, Dr. Lake noted that Plaintiff's affect was “very anxious” during the examination. Tr. 377. In opining that Plaintiff would have difficulty in the workplace due to her anxiety, Dr. Lake noted that . Plaintiff “did display some of this anxiety with this examiner during the mental status examination task.” Tr. 379. Additionally, in opining that Plaintiff would have difficulty dealing with the usual stress encountered in the workplace, Dr. Lake noted that “[d]uring the evaluation [Plaintiff] became quite nervous, tremulous and had difficulty with concentration and persistence due to her anxiety issues.” Id. Dr. Lake specifically referenced Plaintiff s mental status examination in formulating Dr. Lake's opinion. As such, this was not a specific and legitimate reason to reject the opinion.
In sum, the ALJ failed to supply legally sufficient reasons for rejecting Dr. Lake's opinion. '
IV. Vocational Expert
An ALJ may rely on the testimony of a VE at step five. 20 C.F.R. §§ 404.1566, 416.966. However, an ALJ may rely on a VE's testimony only where such testimony is based on a hypothetical that “contain[s] all of the limitations that the ALJ found credible and supported by substantial evidence in the record.” Bayliss, 427 F.3d at 1217. Where an ALJ's hypothetical is based on a residual functional capacity assessment that does not include some of the claimant's limitations, the VE's testimony “has no evidentiary value.” Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th Cir. 2008).
Given the ALJ's errors discussed above, the VE's opinion in the case lacks evidentiary value. Carmickle, 533 F.3d at 1166; see also Ghanim, 763 F.3d 1154,1166 (9th Cir. 2014) (explaining that an ALJ's RFC determination is flawed where the ALJ improperly discounted medical evidence and therefore the reliance on the corresponding VE opinion was error). Accordingly, the ALJ's step five finding is not supported by substantial evidence.
V. Additional Evidence
Plaintiff asks the Court to review the new evidence Plaintiff submitted directly to the ALJ: the first batch submitted on August 10, 2018; and the second batch submitted on September 1,2018. Pl.'s Br. 6-7, ECF No. 26.
“Where the Appeals Council was required to consider additional evidence, but failed to do so, remand to the ALJ is appropriate so that the ALJ can reconsider its decision in light of the additional evidence.” Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228,1233 (9th Cir. 2011). Under the relevant regulations, the Appeals Council is required to review a case if the Appeals Council “receives additional evidence to review that is new, material, and relates to the period on or before the date of the hearing decision, and there is a reasonable probability that the additional evidence would change the outcome of the decision.” 20 C.F.R. §§ 404.970(a)(5), 416.1470(a)(5). Additionally, “in reviewing decisions based.on an application for benefits, the Appeals Council will only consider additional evidence under paragraph (a)(5) of this section if [the claimant] show[s] good cause for not infonning us about or submitting” written evidence no later than five, business days before the date of the scheduled hearing. 20 C.F.R. §§ 404.970(b), 416.1470(b); see also 20 C.F.R. §§ 404.935(a), 416.1435(a) (requiring parties to inform the Commissioner about or submit any written evidence no later than five business days before the date of the scheduled hearing). Good cause can be shown if an “unusual, unexpected, or unavoidable circumstance beyond [the claimant's] control prevented [the claimant] from informing us about or submitting the evidence earlier.” 20 C.F.R. §§ 404.970(b)(3), 416.1470(b)(3).
Here, it is undisputed that Plaintiff submitted additional evidence to the ALJ, but not to the Appeals Council. Plaintiff argues that “since the new evidence was exhibited and included in the transcript of the record, we can assume that when Plaintiff requested review by the Appeals Council, that the Appeals Council reviewed or considered it as part of the entire administrative record.” Pl.'s Br. 12, ECF No. 26. However, the Appeals Council was not required to consider additional evidence that Plaintiff failed to submit to the Appeals Council. There is no indication that Plaintiff even identified the additional evidence in her submissions to the Appeals Council. As such, the Appeals Council was not required to review Plaintiffs additional evidence. See Taylor, 659 F.3d at 1233.
VI. Remand
A reviewing court has discretion to remand an action for further proceedings or for a finding of disability and an award of benefits. See, e.g, Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985). Whether an action is remanded for an award of benefits or for further proceedings depends on the likely utility of additional proceedings. Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000). In determining whether an award of benefits is warranted, the court conducts the “three-part credit-as-true” analysis. Garrison, 759 F.3d at 1020. Under this analysis the court considers whether: (1) the ALJ has failed to provide legally sufficient reasons for rejecting evidence; (2) the record has been fully developed and further proceedings would serve no useful purpose; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. See Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015). Even if all the requisites are met, however, the court may still remand' for further proceedings “when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled[.]” Garrison, 759 F.3d at 1021. “Serious doubt” can arise when there are “inconsistencies between the claimant's testimony and the medical evidence,” or if the Commissioner “has pointed to evidence in the record the ALJ overlooked and explained how that evidence casts serious doubt” on whether the claimant is disabled under the Act. Dominguez, 808 F.3d at 407 (citing Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014)) (internal quotations omitted).
Here, the first requisite is met based on the ALJ's harmful legal errors. As discussed above, the ALJ failed to supply legally sufficient reasons for rejecting Plaintiffs subjective symptom testimony and the medical opinion evidence. Additionally, the ALJ's step-two and step-five determinations were not supported by substantial evidence. '
As to the second requisite, the Ninth Circuit has held that remanding for proceedings rather than for an immediate payment of benefits serves a useful purpose where “the record has [not] been fully developed [and] there is a need to resolve conflicts and ambiguities.” Treichler, 775 F.3d at 1101 (internal quotations and citations omitted). Here, the Court finds that the record would benefit from further development so that the ALJ can properly assess Plaintiffs subjective symptom testimony and the medical opinion evidence as well as reassess the ALJ's step-two and step-five findings. See id. at 1105 (noting that the evaluation of testimony and evidence are “exactly the sort of issues that should be remanded to the agency for further proceedings”).
Accordingly, this case should be remanded for further administrative proceedings to: (1) reevaluate Plaintiffs fibromyalgia at step two; (2) reevaluate Plaintiffs subjective symptom testimony; (3) reevaluate the medical opinion evidence of Dr. Lake; (4) obtain additional VE testimony based on a reformulated RFC; and (5) conduct any further necessary proceedings. See Burrell, 775 F.3d at 1141.
RECOMMENDATION
For the reasons set forth above, the decision of the Commissioner should be REVERSED and this case REMANDED pursuant to sentence four of 42 U.S.C. §405(g) for further proceedings consistent with these Findings and Recommendation.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order.
The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).