Opinion
No. 6:18-cv-00444-HZ
11-01-2019
WILLIAM JAMES P. Plaintiff, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
Merrill Schneider SCHNEIDER KERR & ROBICHAUX P.O. Box. 14490 Portland, Oregon 97293 Attorney for Plaintiff Billy J. Williams UNITED STATES ATTORNEY District of Oregon Renata Gowie ASSISTANT UNITED STATES ATTORNEY 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204-2902 Thomas M. Elsberry SPECIAL ASSISTANT UNITED STATES ATTORNEY Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, Washington 98104-7075 Attorneys for Defendant
OPINION & ORDER Merrill Schneider
SCHNEIDER KERR & ROBICHAUX
P.O. Box. 14490
Portland, Oregon 97293
Attorney for Plaintiff Billy J. Williams
UNITED STATES ATTORNEY
District of Oregon Renata Gowie
ASSISTANT UNITED STATES ATTORNEY
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204-2902 Thomas M. Elsberry
SPECIAL ASSISTANT UNITED STATES ATTORNEY
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, Washington 98104-7075
Attorneys for Defendant HERNANDEZ, District Judge:
Plaintiff William P. brings this action seeking judicial review of the Commissioner's final decision to deny disability insurance benefits (DIB) and supplemental security income (SSI). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)). I reverse the Commissioner's decision and remand for additional proceedings.
PROCEDURAL BACKGROUND
Plaintiff applied for SSI and DIB on November 21, 2013, alleging an onset date of December 31, 2003. Tr. 188-96 (SSI); Tr. 197-03 (DIB). His applications were denied initially and on reconsideration. Tr. 76-86, 99, 126-30 (DIB Initial); Tr. 87-98, 131-34 (SSI Initial); Tr. 10-10, 123, 136-38 (DIB Recon.); Tr. 111-22, 139-41 (SSI Recon.). On June 6, 2016, Plaintiff appeared, with counsel, for a hearing before an Administrative Law Judge (ALJ). Tr. 41-75. On October 21, 2016, the ALJ found Plaintiff not disabled. Tr. 23-39. The Appeals Council denied review. Tr. 1-6.
FACTUAL BACKGROUND
Plaintiff alleges disability based on having severe anxiety, post-traumatic stress disorder (PTSD), panic attacks, possible schizophrenia, pre-diabetes, seizure-like episodes, high blood pressure, and high cholesterol. Tr. 214. At the time of the hearing, he was forty-five years old. Tr. 45 (testimony confirming date of birth). He is a high school graduate and has past relevant work experience as an auto body technician. Tr. 33, 215.
SEQUENTIAL DISABILITY EVALUATION
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), 1382c(a)(3)(A).
Disability claims are evaluated according to a five-step procedure. See Valentine v. Comm'r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step procedure to determine disability). The claimant bears the ultimate burden of proving disability. Id.
In the first step, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled.
In step three, the Commissioner determines whether plaintiff's impairments, singly or in combination, meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity (RFC) to perform "past relevant work." 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can perform past relevant work, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his burden and proves that the claimant is able to perform other work which exists in the national economy, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ'S DECISION
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since his alleged onset date. Tr. 28. Next, at step two, the ALJ first determined that Plaintiff had no severe impairments between the alleged onset date and September 30, 2007, his last insured date, and thus, he failed to establish a severe impairment to support his DIB claim. Id. Plaintiff does not challenge that finding. Pl.'s Brief 2 n.1, ECF 14. But, continuing at step two, the ALJ determined that after the last insured date, Plaintiff had the following severe impairments: PTSD, panic disorder with agoraphobia, schizophrenic disorder, and other psychotic disorder. Tr. 29. At step three, the ALJ found that Plaintiff's impairments did not meet or equal, either singly or in combination, a listed impairment. Tr. 29-30.
At step four, the ALJ concluded that Plaintiff has the RFC to perform a full range of work at all exertional levels but with several non-exertional limitations. Tr. 31. The ALJ found that Plaintiff "can understand, remember, and carry out no more than simple, routine, repetitive tasks that do not require interaction with co-workers or the general public." Tr. 31. With this RFC, the ALJ determined that Plaintiff is unable to perform any of his past relevant work. Tr. 33. However, at step five, the ALJ determined that Plaintiff is able to perform jobs that exist in significant numbers in the economy such as garment sorter, assembler, and janitor. Tr. 34. Thus, the ALJ determined that Plaintiff is not disabled. Tr. 35.
STANDARD OF REVIEW
A court may set aside the Commissioner's denial of benefits only when the Commissioner's findings "are based on legal error or are not supported by substantial evidence in the record as a whole." Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (internal quotation marks omitted). The court considers the record as a whole, including both the evidence that supports and detracts from the Commissioner's decision. Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). "Where the evidence is susceptible to more than one rational interpretation, the ALJ's decision must be affirmed." Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) ("Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's") (internal quotation marks omitted). / / /
DISCUSSION
Plaintiff alleges that the ALJ erred by (1) improperly rejecting a part of the opinion of examining psychologist Frank Lahman, Ph.D; (2) improperly rejecting lay witness testimony; and (3) failing to provide any reason for finding Plaintiff's subjective testimony not credible. I. Dr. Lahman
At the ALJ's request, Dr. Lahman conducted a psychological examination of Plaintiff on July 21, 2016. Tr. 58, 74, 366-75. Dr. Lahman conducted an interview and a mental status examination. Tr. 366. He also reviewed medical records from Benton County Health and Oregon Health & Sciences University (OHSU). Id. He concluded that Plaintiff suffered from PTSD, panic disorder with agoraphobia, schizophrenia spectrum disorder, and "other psychotic disorder." Tr. 370. He noted that Plaintiff's cognitive skills were "quite weak." Id. He also noted that Plaintiff had poor recall. Id. He found the evidence consistent regarding the occurrence of nightmares, panic attacks, avoidance of social encounters, and the recurrent presence of auditory and visual hallucinations. Id.
In a separate mental ability assessment, Dr. Lahman opined that Plaintiff had mild difficulty understanding, remembering, and carrying out simple instructions. Tr. 372. But, in contrast, he found that Plaintiff had a marked impairment in the abilities to understand and remember complex instructions, carry out complex instructions, and make judgments on complex work-related decisions. Tr. 372. He also found Plaintiff to have a marked impairment in the abilities to interact appropriately with the public, interact appropriately with supervisors, and interact appropriately with co-workers. Tr. 373. Dr. Lahman explained that Plaintiff's auditory and visual hallucinations leave him unable to reasonably and appropriately interact with others with adequate effectiveness on a sustained basis. Id. Furthermore, Dr. Lahman noted that Plaintiff is easily confused and overwhelmed in public settings, leading to panic attacks. Id.
The ALJ gave "significant weight" to Dr. Lahman's assessment regarding Plaintiff's "aptitude for simple tasks that require no social interaction with co-workers or the general public." Tr. 33. However, the ALJ gave "little weight" to Dr. Lahman's opinion that Plaintiff cannot tolerate contact with supervisors. Id. According to the ALJ, the opinion regarding supervisors conflicts with Plaintiff's own statement that he gets along "fine" with authority figures. Id. Additionally, the ALJ noted that neither Plaintiff nor Dr. Lahman cited to any instance of workplace social conflict in Plaintiff's past. Id. "To the contrary," the ALJ wrote, "prior treatment notes from OHSU indicate the claimant was reserved, but otherwise 'pleasant' and 'cooperative' within a relatively isolated setting." Id.
"'To reject [the] uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing reasons that are supported by substantial evidence.'" Ryan v. Comm'r, 528 F.3d 1194, 1198 (9th Cir. 2008) (quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)) (brackets in Ryan). "'If a treating or examining doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence.'" Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting Ryan, 528 F.3d at 1198).
Plaintiff argues that the ALJ erred in rejecting the portion of Dr. Lahman's assessment pertaining to Plaintiff's having a marked impairment in his ability to appropriately interact with supervisors. Plaintiff argues that regardless of whether the "clear and convincing" or "specific or legitimate" standard applies, the ALJ's reasoning is flawed. In particular, Plaintiff contends that the fact that Plaintiff has not actually had an incident of social conflict in the workplace does not undermine Dr. Lahman's opinion because Plaintiff has not worked in many years and the evidence in the record indicates that his conditions have progressively worsened since he left the workforce. Plaintiff also argues that his ability to interact with medical personnel in the controlled setting of brief appointments on an infrequent basis sheds no light on his ongoing abilities. As Plaintiff notes, Dr. Lahman specifically opined on Plaintiff's ability to interact with others, including the public, supervisors, and co-workers, on a sustained basis. Finally, Plaintiff acknowledges that his prior statement that he interacts fine with authority figures could "very well be true," Pl.'s Brief 6, but, he still reported to Dr. Lahman, and Dr. Lahman endorsed, that Plaintiff avoided the public and interactions with strangers because he has difficulty knowing if the people he encounters are real or not. Id.
In response, Defendant sets forth the ALJ's arguments, notes that the law supports rejecting medical opinions which are inconsistent with a claimant's own admission or the record as a whole, and argues that "substantial evidence supports the ALJ's departure from Dr. Lahman's opinion regarding interaction with supervisors." Def.'s Resp. 4-5, ECF 17. Defendant adds that Plaintiff's argument is simply a different interpretation of the evidence and because the evidence supports the ALJ's conclusion, it must be affirmed. Id. at 5.
I agree with Plaintiff. First, Dr. Lahman's limitation on interacting with supervisors is not undermined by the ALJ's citation to a single medical treatment note in which it was observed that Plaintiff, who was with his partner, was pleasant and cooperated with the interview. Tr. 337. While Defendant cites to one additional record with similar information from a medical appointment when Plaintiff was again accompanied by his partner and was noted to be reserved but pleasant and cooperative, the two records are not reasonably interpreted as relevant to Plaintiff's ability to interact with supervisors. There is no logical relationship between an appointment with a medical practitioner from whom Plaintiff is voluntarily seeking medical or mental health treatment, and a supervisor who sets or enforces workplace rules and monitors workplace conduct and performance. There is also no logical connection between isolated visits to a medical provider, accompanied by a partner, and the sustained ability to be appropriate in an ongoing relationship with a supervisor.
Second, the absence of any history of problems with supervisors is not inconsistent with Dr. Lahman's opinion, issued in 2016, when Plaintiff has not worked since 2003 and the ALJ's decision itself recognizes that Plaintiff's condition has worsened over time. See Tr. 28-29 (finding impairments non-severe before September 2007, but severe after that date).
Third, while Plaintiff did state that he got along "fine" with authority figures, this statement alone does not provide substantial evidence for contradicting Dr. Lahman's opinion. Dr. Lahman issued his opinion after conducting an interview and testing, and reviewing health records. Notably, the basis for his opinion is that Plaintiff's auditory and visual hallucinations impede Plaintiff's ability to function appropriately in sustained interactions with others. This rationale supported all three of his marked social limitations, meaning Plaintiff's impairments in his ability to interact appropriately with the public, with co-workers, and with supervisors.
Although the ALJ accepted the rationale as to two of the three limitations, she nonetheless determined that the rationale did not support the limitation on supervisors. The only legitimate basis she cited was Plaintiff's prior statement that he got along fine with authority figures.. "[B]osses," along with police, landlords, and teachers, was one of several types of authority figures noted in the question as examples of authority figures. However, the question was asked, and the answer given, with no context. There is no level of supervision expressed in the question and there is no indication of what Plaintiff meant by "fine." It could well be that Plaintiff would have answered "fine" to a question of how well he got along with co-workers but nonetheless, still be unable to work beside them on a sustained basis given his symptoms.
Dr. Lahman's rationale does not allow for parsing between the limitations related to interacting with the public, co-workers, or supervisors. Because she adopted the limitations as to the public and co-workers, the ALJ needed something more than a single ambiguous statement by Plaintiff to reject Dr. Lahman's opinion as to supervisors. In light of the psychologist's comprehensive opinion and the rational provided, the single statement by Plaintiff does not amount to substantial evidence. II. Lay Witness Opinion
Plaintiff's partner Ann Gollakner testified at the hearing and provided a written third-party function report. Tr. 63-75, 236-43. The ALJ discussed some of Gollakner's written and oral hearing testimony. Tr. 33. The ALJ gave only partial weight to Gollakner's observations. Id. The ALJ accepted her testimony to the "extent that the claimant's mental symptoms reasonably restrict him to simple tasks involving little social interaction." Id. But, she explained, Plaintiff told Dr. Lahman "that he could perform a list of daily chores prepared by Ms. Gollakner without any special supervision. Such evidence suggests the claimant retains significant work-related functioning." Id.
"Lay testimony as to a claimant's symptoms or how an impairment affects the claimant's ability to work is competent evidence that the ALJ must take into account." Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012). The ALJ must give reasons "germane to the witness" when discounting the testimony of lay witnesses. Valentine v. Comm'r, 574 F.3d 685, 694 (9th Cir. 2009).
Plaintiff argues that the ALJ's analysis is insufficient for two reasons. First, Plaintiff argues that the ability to perform assigned chores of minimal household work, alone, in the comfort and security of one's home is not analogous to the ability to consistently attend work, forty hours per week, and respond to the demands of a competitive workforce. Second, Plaintiff argues that by accepting Gollakner's testimony to the extent that it restricted Plaintiff to performing simple tasks with little social interaction, the ALJ simply gave weight to Gollakner's testimony only to the extent it supported the RFC that the ALJ had already determined. This, Plaintiff observes, is circular reasoning the Ninth Circuit has rejected as inadequate.
In response, Defendant repeats the ALJ's analysis and argues that the ALJ's conclusion that Plaintiff's ability to perform a list of daily chores suggested that he retained significant work-related functioning, was reasonable. I disagree.
Dr. Lahman's report indicates that at the time of his evaluation, Plaintiff lived with Gollakner. Tr. 369. Generally, as he explained based on his interview, Gollakner prepared a list of tasks for Plaintiff to perform each day. Id. Plaintiff works on some of the tasks throughout the day. Id. Based on Plaintiff's hearing testimony regarding how he spends his time during the day, it appears that the tasks include yard work, garden work, fixing "little things," working on the house, and "stuff like that." Tr. 54. Gollakner typically makes the meals, does laundry, and "those types of things[.]" Id. I agree with Plaintiff that there is no reasonable relationship between Plaintiff's ability to work his way through a household chore list, prepared by his partner, and which he completes at his own pace, alone, and in the comfort of his home, and his ability to participate in the workforce. The performance of such tasks in that context does not in any way suggest that Plaintiff retains "significant" work-related functioning. Thus, regardless of whether the ALJ's analysis was circular and flawed, she failed to give a reason germane to the witness's testimony and thus, the ALJ committed error. III. Plaintiff's Credibility
The ALJ summarized Plaintiff's subjective symptom testimony. Tr. 31-32. She then found, after carefully considering the evidence, that Plaintiff'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. 32.
The ALJ is responsible for determining credibility. See Vasquez, 572 F.3d at 591. Once a claimant shows an underlying impairment and a causal relationship between the impairment and some level of symptoms, clear and convincing reasons are needed to reject a claimant's testimony if there is no evidence of malingering. Carmickle v. Comm'r, 533 F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative evidence that the plaintiff is malingering, "where the record includes objective medical evidence establishing that the claimant suffers from an impairment that could reasonably produce the symptoms of which he complains, an adverse credibility finding must be based on 'clear and convincing reasons'"); see also Molina, 674 F.3d at 1112 (ALJ engages in two-step analysis to determine credibility: First, the ALJ determines whether there is "objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged"; and second, if the claimant has presented such evidence, and there is no evidence of malingering, then the ALJ must give "specific, clear and convincing reasons in order to reject the claimant's testimony about the severity of the symptoms.") (internal quotation marks omitted). Here, the ALJ articulated the first step of the two-step inquiry by finding that Plaintiff's impairments could reasonably cause his alleged symptoms. The issue in this case, where there is no evidence of malingering, is whether the ALJ provided clear and convincing reasons, supported by substantial evidence in the record, for failing to credit Plaintiff's symptom testimony.
Following the ALJ's statement that the reasons for rejecting Plaintiff's subjective testimony are "explained in this decision," the ALJ then reviewed the medical evidence in the record. Tr. 32-33. The ALJ summarized records from OHSU and Benton County Health. Tr. 32. She noted that at one visit, the examining psychologist noted no evidence that Plaintiff was responding to internal stimuli. Tr. 32 (citing Tr. 341). The ALJ also noted that Plaintiff was assigned a Global Assessment of Functioning (GAF) score of 50, which she described suggested moderate difficulty with social and occupational functioning. Id. (citing Tr. 342). She observed that other treatment records documented his ongoing anxiety and hallucination symptoms. Id. (citing Tr. 350 (Mar. 19, 2014 office visit)). But, the ALJ noted, those records showed that during that visit, he had only a mildly anxious affect, he presented as fully oriented and in no apparent distress, and his behavior, judgment, and thought content were normal. Id. (citing Tr. 351).
The ALJ also discussed the state agency psychological consultants' assessments. Id. (citing Tr. 87-97, 111-21). She only partially credited these opinions because those practitioners did not have the benefit of Dr. Lahman's opinion. Id. She fully credited their opinions as to Plaintiff's physical impairments, however. Tr. 33. Finally, the ALJ discussed Dr. Lahman's opinion. Tr. 32-33.
Plaintiff argues that the ALJ provided no reasoning other than the template language appearing routinely in unfavorable social security disability decisions. Plaintiff notes that the ALJ engaged in a one and one-half page summary of the medical and medical opinion evidence but never provided any further explanation of any basis for finding Plaintiff's subjective complaints to be unreliable. She failed, for example, to discuss daily activities, medications, treatment received, measures used to relieve symptoms, and aggravating factors, all factors typically discussed in assessing the reliability of a Plaintiff's testimony. See, e.g., Soc. Sec. Ruling 16-3p, available at 2017 WL 5180304 (noting that in evaluating the intensity, persistence, and limiting effects of an individual's symptoms, the agency, in addition to other evidence, will use the factors set forth in 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) which include daily activities; the location, duration, frequency, and intensity of pain or other symptoms; factors that precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of medication; treatment, other than medication; measures other than treatment used to relieve pain or other symptoms; and any other factors). In response, Defendant recites the law, notes Plaintiff's written and oral symptom testimony, restates the ALJ's summary of the medical and medical opinion evidence, and argues that the ALJ's decision was valid.
The ALJ's decision is insufficient. First, although the ALJ summarized Plaintiff's testimony and cited to medical evidence, the ALJ never specifically explained which part of Plaintiff's testimony was actually contradicted by which medical opinion. This violates established law. E.g., Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) ("General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints") (internal quotation marks omitted); Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) ("The ALJ must state specifically which symptom testimony is not credible and what facts in the record lead to that conclusion"); see also Treichler v. Comm'r, 775 F.3d 1090, 1102 (9th Cir. 2014) (to reject claimant's subjective testimony, ALJ must "specifically identify the testimony from a claimant she or he finds not to be credible and explain what evidence undermines the testimony") (internal quotation marks omitted).
Second, some of the medical evidence cited by the ALJ does not actually contradict Plaintiff's testimony. As explained by the Ninth Circuit in Garrison, assessment of mental health conditions requires an understanding that its symptoms are not static. 759 F.3d at 1017 (observing that mental health symptoms wax and wane in the course of treatment along with cycles of improvement and debilitating symptoms). Gollakner testified that Plaintiff's "situation is, it's unpredictable." Tr. 64. Sometimes "he's fine in a sense," but then he'll "just go blank and just stare at me[.]" Id. In such situations, irregular medical chart references to a normal mood or affect are not suggestive of less debilitating symptoms at other times, at least not without more extensive discussion. See Claire G. v. Berryhill, No. 3:18-cv-00492-HZ, 2019 WL 2287733, at *10 (D. Or. May 28, 2019) ("Simply pointing to the instances of noted normal or bright mood do not, without a more thorough discussion, show a contradiction between Plaintiff's testimony and the medical record").
Third, while an ALJ may consider objective medical evidence in determining a claimant's credibility regarding subjective symptom testimony, the ALJ may not reject such testimony solely because it is unsubstantiated by the objective medical evidence. 20 C.F.R. § 416.929(c); Rollins v. Massanari, 261 F.3d 853, 856(9th Cir. 2001) ("Once a claimant produces objective medical evidence of an underlying impairment, an ALJ may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain.") (internal quotation marks and brackets omitted).
The ALJ's credibility determination is insufficient because it lacks the required specificity, fails to consider the mental health context of Plaintiff's symptoms, fails to cite to contradictory medical evidence, fails to discuss factors relevant to the credibility analysis, and fails to rely on anything but the objective medical evidence. Thus, the ALJ erred. IV. Remand for Additional Proceedings
In social security cases, remands may be for additional proceedings or for an award of benefits. E.g., Garrison, 759 F.3d at 1019 (explaining that if "additional proceedings can remedy defects in the original administrative proceeding, a social security case should be remanded[,]" but "in appropriate circumstances courts are free to reverse and remand a determination by the Commissioner with instructions to calculate and award benefits") (internal quotation marks omitted).
To determine which type of remand is appropriate, the Ninth Circuit uses a three-part test. Id. at 1020; see also Treichler, 775 F.3d at 1100 ("credit-as-true" rule has three steps). First, the ALJ must fail to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion. Garrison, 759 F.3d at 1020. Second, the record must be fully developed and further administrative proceedings would serve no useful purpose. Id. Third, if the case is remanded and the improperly discredited evidence is credited as true, the ALJ would be required to find the claimant disabled. Id. To remand for an award of benefits, each part must be satisfied. Id.; see also Treichler, 775 F.3d at 1101 (when all three elements are met, "a case raises the 'rare circumstances' that allow us to exercise our discretion to depart from the ordinary remand rule" of remanding to the agency).
The first part of the three-part test is met here because the ALJ failed to provide legally sufficient reasons for rejecting Dr. Lahman's limitation regarding interactions with supervisors, the lay witness testimony, and Plaintiff's subjective symptom testimony. Next, Plaintiff concedes that the record is not fully developed regarding Dr. Lahman's testimony because no testimony regarding limited supervisor interaction was solicited from the vocational expert (VE). Pl.'s Brief 6 (citing Tr. 265-67). Nonetheless, Plaintiff argues that a remand for benefits is warranted because once Plaintiff's subjective symptom testimony is credited, the ALJ would be required to find Plaintiff disabled.
Defendant argues that the record needs further development and that further administrative proceedings would be useful to first assess what Defendant considers to be the contradiction between Plaintiff's stating he got along "fine" with authority figures and Dr. Lahman's supervisor contact restriction. Defendant also contends that remand for additional proceedings would allow for further development of the contradictions between the medical opinions of Dr. Lahman and the non-examining state consulting medical practitioners.
I agree with Defendant that this is not one of the "rare exceptions" to the ordinary remand rule. First, Plaintiff himself acknowledges that issues remain regarding Dr. Lahman's opinion. Second, Plaintiff improperly reverses the second and third steps of the three-part remand analysis by contending that when his testimony is credited as true, no issues remain and the ALJ would have to find him disabled. The proper inquiry first asks if there are issues needing further development and whether further administrative proceedings would be useful. Only after that inquiry is resolved does the court address whether disability is warranted when crediting the improperly rejected evidence as true. Here, further proceedings would be useful to more carefully consider Plaintiff's statement that he gets along "fine" with authority figures. As indicated above, the question is presented with no context and the response needs further clarification. Additionally, while Plaintiff asserts that an individual with Plaintiff's symptoms would be unable to maintain competitive employment, the record in this case lacks evidence supporting that assertion. Because the VE testimony was obtained via interrogatories posed by the ALJ, the only hypothetical presented conformed to what became the ALJ's RFC. Tr. 266. Thus, there is no VE testimony establishing that someone with Plaintiff's symptoms could not perform competitive work. While that may be a matter of common sense, the lack of evidence in the record on this point requires a remand for additional proceedings.
CONCLUSION
The Commissioner's decision is reversed and this case is remanded for additional proceedings.
IT IS SO ORDERED.
Dated this 1 day of November, 2019
/s/_________
Marco A. Hernandez
United States District Judge