Monroe v. Commissioner of Social Security Administration ( 2019 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Dennis M Monroe, No. CV-18-02571-PHX-JAT 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is Dennis M. Monroe’s (“Plaintiff”) appeal from the Social 16 Security Commissioner’s (“Commissioner”) denial of his application for a period of 17 disability, disability insurance benefits, and Supplemental Security Income (“SSI”) under 18 Title II of the Social Security Act, 42 U.S.C. §§ 401–434. (Doc. 1). The Court now rules 19 on the appeal. 20 I. BACKGROUND 21 Plaintiff filed an application for disability insurance benefits on January 29, 2015. 22 (Doc. 12-6 at 2). Plaintiff’s application was denied at the initial stage, upon reconsideration, 23 and by the ALJ after a hearing. (Id.). 24 a. The Disability Determination 25 To qualify for social security benefits, a claimant must show he “is under a 26 disability.” 42 U.S.C. § 423(a)(1)(E). If he shows he suffers from a medically determinable 27 physical or mental impairment that prohibits him from engaging in any “substantial gainful 28 activity,” the claimant is disabled. Id. § 423(d)(1)–(2). The Social Security Administration 1 (“SSA”) has created a five-step process for an Administrative Law Judge (“ALJ”) to 2 determine whether the claimant is disabled. 20 C.F.R. § 404.1520(a)(1). If an ALJ 3 determines that the individual is not disabled at any step, the inquiry ends. Id. 4 § 404.1520(a)(4). “The burden of proof is on the claimant at steps one through four,” and 5 the burden shifts to the Commissioner at step five. See Bray v. Comm’r of Soc. Sec. Admin., 6 554 F.3d 1219, 1222 (9th Cir. 2009). 7 At step one, the ALJ must determine whether the claimant is “doing substantial 8 gainful activity.” § 404.1520(a)(4)(i). If he is not, the ALJ must proceed to step two and 9 consider whether the claimant has a physical or mental impairment or a combination of 10 impairments that are “severe.” Id. § 404.1520(a)(4)(ii). If there is severe impairment, the 11 ALJ proceeds to step three to determine whether the claimant’s impairment or combination 12 of impairments meets or medically equals an impairment listed in Appendix 1 to Subpart 13 P of 20 C.F.R. Part 404. Id. § 404.1520(a)(4)(iii). If so, the claimant is disabled. Id. If not, 14 the ALJ must assess the claimant’s “residual functional capacity” (“RFC”) before 15 proceeding to step four. Id. § 404.1520(a)(4). The RFC represents the most a claimant “can 16 still do despite [his] limitations.” Id. § 404.1545(a)(1). At step four, the ALJ determines 17 whether the claimant can still do “past relevant work” in light of the claimant’s RFC. Id. 18 § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the final step to determine whether the 19 claimant “can make an adjustment to other work” considering the claimant’s RFC, age, 20 education, and work experience. Id. § 404.1520(a)(4)(v). 21 b. The ALJ’s Decision 22 The ALJ denied Plaintiff social security benefits because she determined he could 23 do the full range of medium exertional work. (Doc. 12-3 at 31–32). After finding that 24 Plaintiff was not engaged in substantial gainful activity at step one, at step two, the ALJ 25 determined that Plaintiff’s “medically determinable mental impairments of major 26 depressive disorder and mild cognitive disorder, considered singly and in combination, do 27 not cause more than minimal limitation in the claimant’s ability to perform basic mental 28 work activities and are therefore nonsevere.” (Id. at 24–26). However, the ALJ found that 1 the Plaintiff’s hemochromatosis and obstructive sleep apnea were severe impairments, so 2 she proceeded to step three. (Id. at 24). 3 At step three, the ALJ concluded that Plaintiff’s severe impairments “do[] not meet 4 or medically equal the criteria of any impairment listed in 20 CFR Part 404, Subpart P, 5 Appendix 1.” (Id. at 27). Therefore, the ALJ underwent the RFC analysis. (Id. at 27–29). 6 In doing so, she discounted Plaintiff’s subjective symptom testimony and the opinions of 7 his treating providers which indicated moderate, moderately severe, and severe limitations 8 in various activities performed “on a sustained basis in a routine work setting,” (Doc. 12- 9 11 at 82–83 (Ex. 8F) (NP Nemati); Doc. 12-13 at 47–48 (Ex. 15F) (Dr. Saunders)). (Doc. 10 12-3 at 27–29). The ALJ instead credited the Disability Determination Service’s reviewing 11 medical consultant and psychological consultant. (Id. at 29). The medical consultant 12 determined Plaintiff could do the full range of work at the medium exertional level, and 13 the psychological consultant determined Plaintiff’s mental impairments were nonsevere. 14 (Id.). The ALJ’s ultimate conclusion was that Plaintiff’s impairments restrict him “to the 15 full range of the medium exertional level.” (Id. at 31). At step four, the ALJ determined 16 Plaintiff’s past work was at the medium exertional level, and thus, the ALJ concluded 17 Plaintiff was not entitled to disability benefits. (Id. at 31–32). 18 II. LEGAL STANDARD 19 An ALJ’s decision to deny a claim for disability benefits may be reversed “only 20 when the ALJ’s findings are based on legal error or not supported by substantial evidence 21 in the record.” Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003). 22 “‘Substantial evidence’ means more than a mere scintilla, but less than a preponderance, 23 i.e., such relevant evidence as a reasonable mind might accept as adequate to support a 24 conclusion.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citing Young 25 v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 26 “The inquiry here is whether the record, read as a whole, yields such evidence as 27 would allow a reasonable mind to accept the conclusions reached by the ALJ.” Gallant v. 28 Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation omitted). The ALJ, as the trier of 1 fact, “must resolve conflicts in the evidence, and if the evidence can support either 2 outcome, the [C]ourt may not substitute its judgment for that of the ALJ.” Matney v. 3 Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). The ALJ is also “entitled to draw inferences 4 logically flowing from the evidence.” Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 5 2008). And, it is the ALJ’s responsibility to resolve conflicts in medical testimony, 6 determine credibility, and resolve ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 7 (9th Cir. 1995). Accordingly, the ALJ has the “duty to fully and fairly develop the record 8 and to assure that the claimant’s interests are considered.” Tonapetyan v. Halter, 242 F.3d 9 1144, 1150 (9th Cir. 2001) (quoting Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)). 10 The Court “may not affirm simply by isolating a ‘specific quantum of supporting 11 evidence.’” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (citation omitted). Moreover, 12 “[a]lthough the ALJ’s analysis need not be extensive, the ALJ must provide some 13 reasoning in order for [the Court] to meaningfully determine whether the ALJ’s 14 conclusions were supported by substantial evidence.” Brown-Hunter v. Colvin, 806 F.3d 15 487, 495 (9th Cir. 2015). In other words, if the ALJ’s “path” cannot “reasonably be 16 discerned,” the ALJ’s decision must be reversed. Id. (quoting Alaska Dep’t of Envtl. 17 Conservation v. E.P.A., 540 U.S. 461, 497 (2004)). As such, the Court’s inquiry is 18 constrained to the reasons asserted by the ALJ and the evidence relied upon in support of 19 those reasons. See Orn, 495 F.3d at 630. 20 III. ANALYSIS 21 Plaintiff contends that the ALJ erred in the weight she gave the opinions of his 22 treating providers and the opinions of the agency consultants, in discounting Plaintiff’s 23 subjective symptom testimony, and in concluding that Plaintiff’s mental conditions do not 24 constitute severe impairments. (Doc. 15). 25 a. Opinion Evidence 26 Plaintiff argues that the ALJ did not properly weigh the opinions of Plaintiff’s 27 treating providers. (Doc. 15 at 3–8). Plaintiff also contends that the ALJ erred in rejecting 28 1 Plaintiff’s request to subpoena the agency consultants who evaluated his conditions. (Id. at 2 9–10). 3 1. Weight 4 Plaintiff first argues that the ALJ erred in giving little weight to the opinions of Dr. 5 Richard W. Saunders, Plaintiff’s treating psychologist, and Plaintiff’s treating nurse 6 practitioner Sakinah A. Nemati. (Doc. 15 at 3–4). Dr. Saunders and NP Nemati filled out 7 a check-list form that indicated moderate, moderately severe, and severe limitations in 8 various activities performed “on a sustained basis in a routine work setting.” (Doc. 12-11 9 at 82–83 (Ex. 8F) (NP Nemati); Doc. 12-13 at 47–48 (Ex. 15F) (Dr. Saunders)). The 10 vocational expert testified that these limitations would prevent Plaintiff from performing 11 past work or other work. (Doc. 12-3 at 63–64 (Trans. at 23–24)). 12 The ALJ gave the opinions of Dr. Saunders and NP Nemati little weight because 13 she determined that “the medical evidence of record indicates only mild 14 limitations . . . [and] mental status examinations were essentially normal and the claimant’s 15 provider noted that the claimant benefited from his psychiatric medications, with no side 16 effects.” (Doc. 12-3 at 29). The Commissioner asserts that this rationale is sufficient. (Doc. 17 17 at 8–12). 18 Preliminarily, the Court notes that it must review the ALJ’s decision to discount the 19 opinions of Dr. Saunders and NP Nemati differently. 20 C.F.R. § 416.913 (2017)1 20 distinguishes between the opinions of “acceptable medical sources” and “other sources.” 21 See Revels v. Berryhill, 874 F.3d 648, 655, 665 (9th Cir. 2017). NP Nemati does not qualify 22 as an “acceptable medical source.” See § 416.913(d)(1); Revels, 874 F.3d at 655, 665. Dr. 23 Saunders is a licensed psychologist who does, however. § 416.913(a)(2). 24 The opinion of a treating provider who qualifies as an acceptable medical source, 25 such as a treating psychologist like Dr. Saunders, is given “‘controlling weight’ so long as 26 it ‘is well-supported by medically acceptable clinical and laboratory diagnostic techniques 27 1 Section 416.913 was amended on January 18, 2017, and the amended version became effective on March 27, 2017. See 82 Fed. Reg. 5844, 5875–76 (Jan. 18, 2017). Plaintiff’s 28 claim was filed on January 29, 2015, (Doc. 12-6 at 2), and thus the version effective from September 3, 2013 to March 26, 2017 applies here. 1 and is not inconsistent with the other substantial evidence in [the claimant’s] case record.’” 2 Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (alteration in original) (quoting 3 20 C.F.R. § 404.1527(c)(2)); see § 404.1527(c)(2); Davis v. Astrue, 444 F. App’x 151, 152 4 (9th Cir. 2011). A treating psychologist’s medical opinion is generally given more weight 5 because these individuals “are likely to be the medical professionals most able to provide 6 a detailed, longitudinal picture of [the claimant’s] medical impairment(s) and may bring a 7 unique perspective to the medical evidence that cannot be obtained from the objective 8 medical findings alone or from reports of individual examinations. . . .” § 404.1527(c)(2); 9 see also id. § 416.927(c)(2). However, if evidence in the record contradicts the treating 10 psychologist’s opinion, the ALJ may reject it for specific, legitimate reasons that are based 11 on substantial evidence.2 Bray, 554 F.3d at 1228; Embrey v. Bowen, 849 F.2d 418, 421 (9th 12 Cir. 1988) (citation omitted). In doing so, the ALJ must make findings that set out a 13 “detailed and thorough summary of the facts and conflicting clinical evidence.” See 14 Trevizo, 871 F.3d at 676 (emphasis added) (citation omitted) (reversing ALJ for failing to 15 specifically “point[] to” inconsistencies between the clinical record and the treating 16 physician’s opinions). 17 An ALJ’s conclusory statement that there is contradictory evidence in the record is 18 not a specific and legitimate reason to discount the opinion of a treating physician3 or 19 psychologist. See Embrey, 849 F.2d at 421–22. For example, in Embrey, the ALJ found 20 that the treating physicians’ opinions were “unsupported by sufficient objective findings 21 and contrary to the preponderant conclusions mandated by those objective findings.” Id. at 22 421. The ALJ in Embrey also listed some of the findings he found relevant to his 23 2 If the treating psychologist’s opinion is not contradicted, the ALJ may only reject it if there are “clear and convincing reasons for doing so.” Magallanes v. Bowen, 881 F.2d 747, 24 751 (9th Cir. 1989). It is unclear here, based on the ALJ’s analysis, what medical evidence in the record contradicted what opinion of Dr. Saunders. But, it is clear that the ALJ 25 determined some of the medical evidence in the record contradicted at least one of Dr. Saunders’ opinions. Because the Court concludes that the ALJ’s decision to discount Dr. 26 Saunders’ opinion was in error under the lower specific-and-legitimate-reasons standard, it is not necessary to speculate whether the evidence in the record was truly contradictory 27 such that the clear-and-convincing standard applies on review. 28 3 Physicians, like psychologists, are also listed as an acceptable medical source under § 416.913(a). See § 416.913(a)(1). 1 determination that he should not credit the treating physician’s opinion with controlling 2 weight. See id. The Ninth Circuit reversed. Id. at 422. The court reasoned that “[t]he 3 subjective judgments of treating physicians are important, and properly play a part in their 4 medical evaluations”; thus, “the ultimate conclusion of those physicians must be given 5 substantial weight.” Id.; see §§ 404.1527(c)(2), 416.927(c)(2). If the ALJ discounts a 6 treating physician’s opinion, the ALJ must make an “effort to relate . . . the[] objective 7 factors to any of the specific medical opinions and findings [the ALJ] rejects.” Embrey, 8 849 F.2d at 422. The ALJ must also explain why her opinions and interpretation of the 9 objective medical evidence is correct, and thus, why the treating physician’s opinion is 10 incorrect. Id. at 421–22. 11 Additionally, if an ALJ does not give the opinion of a treating psychologist or 12 physician controlling weight, the ALJ must determine the credibility of the medical opinion 13 under the factors outlined in § 404.1527(c), including “the length of the treating 14 relationship, the frequency of examination, the nature and extent of the treatment 15 relationship, or the supportability of the opinion.” Trevizo, 871 F.3d at 676 (citing 16 § 404.1527(c)). Failure to do so constitutes reversible error. Id. (concluding that ALJ’s 17 rejection of treating physician’s opinion in light of the objective evidence in the record was 18 reversible error because ALJ failed to consider factors outlined under § 404.1527(c)); see 19 Kelly v. Berryhill, 732 F. App’x 558, 563 (9th Cir. 2018); Elgrably v. Comm’r of Soc. Sec. 20 Admin., No. CV-17-04760-PHX-JAT, 2018 WL 5264074, at *8 (D. Ariz. Oct. 23, 2018) 21 (finding reversible error because, “[a]lthough the ALJ stated that the opinions of 22 [claimant’s treating physicians] are ‘inconsistent with the medical evidence and 23 unsupported by clinical findings on examination,’ . . . , the ALJ did not consider factors 24 such as the length of the treating relationship, the frequency of examination, the nature and 25 extent of the treatment relationship, or the supportability of the opinion”). 26 The ALJ did not provide a specific, legitimate reason that is supported by substantial 27 evidence for discounting Dr. Saunders’ opinion. Although the ALJ cited to what she 28 deemed contradictory objective medical evidence, the ALJ failed to connect any of the 1 objective medical evidence from the record to any of Dr. Saunders’ opinions, as Embrey 2 instructs. See Elgrably, 2018 WL 5264074, at *7 (“[I]t is unclear from the ALJ’s opinion 3 how [the treating physicians’] opinions even conflict with the medical evidence in this 4 case.”). The ALJ did not adequately explain why her interpretation of the objective medical 5 evidence was correct, and thus, why Dr. Saunders was incorrect. Indeed, the ALJ’s citation 6 to certain objective evidence did not necessarily show any inconsistency with Dr. 7 Saunders’ opinions. For example, as noted above, the ALJ found that Dr. Saunders’ 8 opinions were contradicted by Plaintiff’s “mental status examinations,” which she broadly 9 categorized as “essentially normal,” in part, based on an evaluation from June 2016. (Doc. 10 12-3 at 29). But, earlier in the decision, the ALJ stated that the June 2016 evaluation 11 indicated Plaintiff’s “results ranged from the high end of average to the severely impaired 12 range.” (Id. at 25). As such, it is unclear how the objective medical evidence contradicts 13 Dr. Saunders’ opinions. 14 In short, the ALJ’s vague, conclusory analysis of how the objective medical 15 evidence contradicts Dr. Saunders’ opinions does not show “how the evidence conflicts 16 with [his] opinion[s],” and thus, the ALJ’s determination that objective medical evidence 17 in the record contradicts Dr. Saunders’ opinions is not a specific and legitimate reason, 18 supported by substantial evidence, for discounting Dr. Saunders’ opinion. See Elgrably, 19 2018 WL 5264074, at *8. Additionally, the ALJ’s decision must be reversed under Trevizo 20 because she did not examine the factors listed under § 404.1527(c).4 Therefore, the ALJ 21 erred. 22 The ALJ also erred in her analysis of the weight she accorded NP Nemati for similar 23 reasons. As noted above, NP Nemati does not qualify as an “acceptable medical source” 24 4 Trevizo was issued on July 10, 2017, ten days after the ALJ issued her decision on June 25 30, 2017. See Trevizo v. Berryhill, 862 F.3d 987 (9th Cir. 2017), amended, 871 F.3d 664. Although the ALJ cannot be faulted for not forecasting that her decision would be violative 26 of Trevizo, her failure to examine the § 404.1527(c) factors still constitutes reversible error. Indeed, the Trevizo court itself remanded after finding this exact error. 871 F.3d at 684. 27 Moreover, § 404.1527 was promulgated and in effect before the ALJ made her decision. Therefore, the fact that Trevizo was not issued until after the ALJ’s decision is irrelevant 28 for purposes of deciding this appeal. 1 under § 416.913(d)(1).5 See Revels, 874 F.3d at 655, 665. Therefore, NP Nemati’s opinion 2 was not entitled to the same weight as Dr. Saunders’ opinion because it was an “other 3 source.” See id. The ALJ was only required to give germane reasons for rejecting NP 4 Nemati’s opinion. Id. Nevertheless, an ALJ must provide specific reasons for discounting 5 the opinion of an other source and may not simply offer a conclusory statement. See Popa 6 v. Berryhill, 872 F.3d 901, 907 (9th Cir. 2017); Seaman v. Berryhill, No. 4:16-CV-00027- 7 SLG, 2017 WL 3879084, at *7 (D. Alaska Sept. 5, 2017). And, an ALJ must evaluate the 8 opinion of an other source who treats the patient under the same factors used to evaluate 9 the opinion of a treating physician or psychologist (or any other acceptable medical source) 10 as outlined by § 404.1527(c). See Revels, 874 F.3d at 655, 665. 11 The ALJ concluded that NP Nemati’s opinion was inconsistent with the objective 12 medical evidence in the record, which generally is a germane reason for discounting the 13 opinion of an other source like NP Nemati. See, e.g., Bayliss v. Barnhart, 427 F.3d 1211, 14 1218 (9th Cir. 2005). However, the ALJ here offered only a conclusory statement that NP 15 Nemati’s opinion was inconsistent with the objective medical evidence in the record. The 16 ALJ did not explain how certain evidence contradicted any particular opinion. In fact, as 17 noted above, based on the ALJ’s own recounting of the objective medical evidence as 18 indicating that Plaintiff’s June 2016 “neuropsychological evaluation . . . results ranged 19 from the high end of average to the severely impaired range,” (Doc. 12-3 at 25), it is unclear 20 how the objective medical evidence contradicted NP Nemati’s opinion. Moreover, the 21 Ninth Circuit Court of Appeals has made clear that an ALJ must apply the § 404.1527(c) 22 factors in evaluating opinions by other sources. See Revels, 874 F.3d at 655, 665. Because 23 the ALJ did not analyze NP Nemati’s opinion under the § 404.1527(c) factors, the ALJ 24 erred. Accordingly, the ALJ committed reversible error in failing to properly discount NP 25 Nemati’s opinion. 26 27 5 The Court reiterates, § 416.913 was amended on January 18, 2017, and the amended version became effective on March 27, 2017. See 82 Fed. Reg. at 5875–76. Plaintiff’s claim 28 was filed on January 29, 2015, (Doc. 12-6 at 2), and thus the version effective from September 3, 2013 to March 26, 2017 applies here. 1 2. ALJ’s Denial of Cross-examination of Agency Consultants 2 Plaintiff also asserts that the ALJ erred in refusing to issue a subpoena requiring the 3 agency consultants to appear at the hearing so that Plaintiff could cross-examine them. 4 (Doc. 15 at 9). A claimant “is not entitled to unlimited cross-examination,” but cross- 5 examination “may be required for a full and true disclosure of the facts.” Solis v. Schweiker, 6 719 F.2d 301, 302 (9th Cir. 1983) (quoting 5 U.S.C. § 556(d)). The ALJ has discretion to 7 determine whether cross-examination is required. Id. Typically, when a claimant has 8 “availed himself of the right to request cross-examination, and [when] the report [is] so 9 crucial to the ALJ’s decision, . . . denial of [the claimant’s] request [is] an abuse of 10 discretion,” especially where “the physician is a crucial witness whose findings 11 substantially contradict the other medical testimony.” Id. at 301–02; cf. Bello v. Astrue, 241 12 F. App’x 426, 427–28 (9th Cir. 2007) (holding that ALJ abused her discretion by denying 13 a motion to subpoena consultative examiner where consultative examiner’s opinion was 14 the primary basis for ALJ’s denial of benefits and it “substantially contradicted” the 15 opinion of treating physicians). 16 Here, as the ALJ noted, the medical agency consultant determined that Plaintiff is 17 “limited to the full range of the medium exertional level.” (Doc. 12-3 at 29 (citing (Doc. 18 12-4 at 3–12 (Ex. 2A); Doc. 12-4 at 14–24 (Ex. 4A)))). The psychological agency 19 consultant concluded that Plaintiff’s mental impairments were nonsevere. (Id. (citing (Doc. 20 12-4 at 3–12 (Ex. 2A); Doc. 12-4 at 14–24 (Ex. 4A)))). These findings conflict with the 21 opinions of Plaintiff’s treating providers, which found Plaintiff has moderate, moderately 22 severe, and severe limitations in various activities performed “on a sustained basis in a 23 routine work setting.” (Doc. 12-11 at 82–83 (Ex. 8F) (NP Nemati); Doc. 12-13 at 47–48 24 (Ex. 15F) (Dr. Saunders)). Moreover, the ALJ gave these findings great weight, indicating 25 they were important in the ALJ’s decisionmaking process. See Powers v. Comm’r of Soc. 26 Sec. Admin., No. CV-16-03427-PHX-GMS, 2018 WL 1182554, at *4 (D. Ariz. Mar. 7, 27 2018). Accordingly, the ALJ erred in denying Plaintiff’s request to subpoena the agency 28 consultants. On remand, the ALJ must allow cross-examination of the agency consultants. 1 b. Weight of Plaintiff’s Testimony 2 Plaintiff argues that the ALJ erred in discounting Plaintiff’s subjective symptom 3 testimony. (Doc. 15 at 10–15). The ALJ discounted Plaintiff’s subjective symptom 4 testimony relating to fatigue because she found Plaintiff engages in household and other 5 daily activities, a medication was helping control Plaintiff’s fatigue, and Plaintiff sold his 6 business due to dropping revenues and health, not just for health reasons. (Doc. 12-3 at 28– 7 29). 8 In determining whether a claimant’s testimony should be discounted, an ALJ must 9 perform a two-step process. The ALJ must first determine whether the claimant has 10 presented “objective medical evidence of an underlying impairment which might 11 reasonably produce the pain or symptoms alleged.” Brown-Hunter, 806 F.3d at 492–93. If 12 so, the ALJ must provide “specific, clear and convincing reasons for” discounting the 13 testimony regarding the severity of the symptoms, unless the claimant is malingering. Id. 14 (citation omitted) The ALJ’s reasoning must be based on substantial evidence. See id. at 15 495. 16 Here, the ALJ found that Plaintiff’s “medically determinable impairments could 17 reasonably be expected to produce the above alleged symptoms.” (Doc. 12-3 at 28). 18 However, the ALJ discounted Plaintiff’s statements relating to “the intensity, persistence 19 and limiting effects of these symptoms.” (Id.). The ALJ made no finding as to malingering. 20 As such, the ALJ must have had specific, clear and convincing reasons for discounting 21 Plaintiff’s testimony. 22 An ALJ’s credibility determination “must rely either on reasons unrelated to the 23 subjective testimony (e.g., reputation for dishonesty), on conflicts between his testimony 24 and his own conduct, or on internal contradictions in that testimony.” Light v. Soc. Sec. 25 Admin., 119 F.3d 789, 792 (9th Cir. 1997). In analyzing whether to discount a claimant’s 26 testimony, “[t]he ALJ must identify the testimony that was not credible, and specify ‘what 27 evidence undermines the claimant’s complaints.’” Treichler, 775 F.3d at 1103 (quoting 28 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)). The ALJ’s findings “must contain 1 specific reasons for the weight given to the individual’s symptoms, be consistent with and 2 supported by the evidence, and be clearly articulated so the individual and any subsequent 3 reviewer can assess how the adjudicator evaluated the individual’s symptoms.” SSR 16- 4 3p, 82 Fed. Reg. 49462, 49467 (Oct. 25, 2017). As noted above, if the ALJ’s “path” cannot 5 “reasonably be discerned,” the ALJ’s decision must be reversed. Treichler, 775 F.3d at 6 1103 (quoting Alaska Dep’t of Envtl. Conservation, 540 U.S. at 497). 7 1. Plaintiff’s Activities 8 Part of the ALJ’s rationale for discounting Plaintiff’s subjective symptom testimony 9 was that she found Plaintiff engaged in activities that were inconsistent with his claims of 10 fatigue and declining cognitive function. (Doc. 12-3 at 28). An ALJ can discount a 11 claimant’s subjective symptom testimony based on the claimant’s daily activities under 12 two theories. Orn, 495 F.3d at 639. First, the ALJ can discount the claimant’s subjective 13 symptom testimony if the claimant’s daily activities contradict the claimant’s subjective 14 symptom testimony. Id. Second, “the ALJ may discredit a claimant’s testimony when the 15 claimant reports participation in everyday activities indicating capacities that are 16 transferable to a work setting.” Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012). 17 However, “the mere fact that a plaintiff has carried on certain daily activities . . . does not 18 in any way detract from her credibility as to her overall disability.” Orn, 495 F.3d at 639 19 (alteration in original); see also Audra H. v. Berryhill, No. CV18-8129-PCT-DGC, 2019 20 WL 1643748, at *8 (D. Ariz. Apr. 16, 2019) (stating “[p]laintiff’s reported daily activities 21 of watching television, talking on the phone, preparing easy meals, struggling to complete 22 housework, and attending doctor appointments” did not establish a clear and convincing 23 reason for discounting the plaintiff’s testimony). 24 Here, the ALJ discounted Plaintiff’s subjective symptom testimony relating to 25 fatigue and declining cognitive functioning because she found that Plaintiff “clean[s] 26 around the house, help[s] care for his grandson, drive[s], and do[es] yard work.”6 27 6 Although the ALJ noted that Plaintiff installed a porch, (Doc. 12-3 at 28), the ALJ neglected to mention reports that Plaintiff appears to have been injured while doing so. 28 (Doc. 12-12 at 64 (Ex. 10F at 34)). Therefore, this activity is a dubious ground to base a finding of inconsistency on. 1 (Doc. 12-3 at 28). The ALJ did not adequately establish either ground for finding 2 inconsistency between the daily activities and Plaintiff’s subjective symptom testimony. 3 Thus, the ALJ erred. 4 First, the ALJ’s analysis did not explain how any of the cited activities are 5 inconsistent with Plaintiff’s subjective symptom testimony. Indeed, it is unclear from the 6 evidence that the ALJ cited if Plaintiff even performed the cited tasks daily, the extent to 7 which he performed them, or the amount of time it took him to complete them. (Cf. Doc. 8 12-3 at 49–50 (detailing Plaintiff’s inability to consistently complete household chores)). 9 Given the lack of information regarding Plaintiff’s ability to perform daily activities, there 10 is not substantial evidence to support a finding of inconsistency between the cited daily 11 activities and Plaintiff’s subjective symptom testimony regarding fatigue and declining 12 cognitive function. 13 Second, the ALJ did not connect any of the cited activities to any transferable work 14 skill. Pontzious v. Berryhill, No. 3:16-CV-8274-HRH, 2017 WL 6276371, at *8 (D. Ariz. 15 Dec. 11, 2017) (stating the ALJ must “explain how the activities to which she cited would 16 be transferable to a work setting”). The ALJ’s analysis does not demonstrate that Plaintiff 17 “is able to spend a substantial part of [his] day engaged in pursuits involving the 18 performance of physical functions that are transferable to a work setting.” See Audra H., 19 2019 WL 1643748, at *8 (quoting Orn, 495 F.3d at 639). Simply put, the evidence the ALJ 20 cited does not support a finding, based on substantial evidence, that Plaintiff performs any 21 daily activity that shows a transferable work skill. 22 In sum, the ALJ did not show any inconsistency between the cited activities and 23 Plaintiff’s subjective symptom testimony nor did she show that any cited activity illustrates 24 a transferable work skill. It is the ALJ’s duty to adequately develop the record, and the ALJ 25 must explain the path she took to reach the finding she did. Treichler, 775 F.3d at 1103. 26 Because the ALJ failed to adequately explain how Plaintiff’s daily activities were 27 inconsistent with any specific portion of his subjective symptom testimony, she erred. 28 1 2. Plaintiff’s Medication 2 The ALJ also appears to have based her decision to discount Plaintiff’s testimony 3 regarding his symptoms of fatigue on the fact that Plaintiff “reported that [a medication] 4 was helping control his fatigue.” (Doc. 12-3 at 28–29). The fact that a claimant’s 5 medication is helping adequately control a condition is relevant to an ALJ’s credibility 6 determination because the effectiveness of medication can create a factual conflict with the 7 claimant’s testimony. See Brown-Hunter, 806 F.3d at 496. The ALJ here cited evidence 8 that Plaintiff’s medication “helped [Plaintiff] feel ‘not quite as sleepy’” in that Plaintiff 9 “can just rest at times without always falling asleep.” (Doc. 12-11 at 18 (Ex. 7F at 6); see 10 also Doc. 12-12 at 41 (Ex. 10F at 12) (“Less hypersomnia with tx with [medication.]”)). 11 This evidence does not show that Plaintiff’s medication helps effectively control his 12 fatigue; it merely illustrates that it somewhat improves his condition—to what extent is 13 unknown. In fact, the ALJ failed to show how this evidence conflicted with any specific 14 testimony. Accordingly, the ALJ erred in citing the effect of Plaintiff’s medication as a 15 clear and convincing reason for discounting his testimony because it is unclear what path 16 she took to this conclusion. Treichler, 775 F.3d at 1103. 17 3. Selling Business 18 The ALJ also seemed to rely on the fact that Plaintiff “sold his business due to 19 dropping revenues and health, so health was not the sole reason he stopped working.” (12- 20 3 at 29). It is unclear why the ALJ cited this evidence, but it seems as though she was 21 indicating that there was a conflict in testimony. Inconsistency of the testimony can be a 22 ground for discounting a claimant’s testimony, but a “vague allegation” of inconsistency 23 is not enough. See Treichler, 775 F.3d at 1103 (citation omitted). Instead, the ALJ must 24 “specifically identify the testimony [from a claimant] she or he finds not to be credible 25 and . . . explain what evidence undermines the testimony.” See id. at 1102 (alterations in 26 original) (citation omitted). 27 It is not apparent how any evidence relating to why Plaintiff sold his business was 28 in conflict with Plaintiff’s testimony. The ALJ merely provided a “vague allegation” of 1 inconsistency without elaboration. Without a specific citation to inconsistent testimony, 2 the exact reason behind why Plaintiff sold his business is not a clear and convincing reason, 3 supported by substantial evidence, for discounting Plaintiff’s testimony. 4 c. ALJ’s Determination that Plaintiff’s Mental Impairments Are Not Severe 5 6 Finally, Plaintiff argues that the ALJ erred in her determination that his mental 7 impairments are not severe. (Doc. 15 at 15–17). “An impairment or combination of 8 impairments may be found ‘not severe only if the evidence establishes a slight abnormality 9 that has no more than a minimal effect on an individual’s ability to work.” Miller v. Colvin, 10 174 F. Supp. 3d 1210, 1219 (D. Ariz. 2016) (quoting Webb v. Barnhart, 433 F.3d 683, 686 11 (9th Cir. 2005)). “[A]n ALJ may find that a claimant lacks a medically severe impairment 12 or combination of impairments only when his conclusion is ‘clearly established by medical 13 evidence.’” Young v. Colvin, No. CV-16-02264-PHX-DGC, 2017 WL 677167, at *2 (D. 14 Ariz. Feb. 21, 2017) (citing Webb, 433 F.3d at 687). An ALJ must also consider a 15 claimant’s subjective symptoms in determining the severity of a claimant’s impairment. 16 Lyons v. Colvin, No. CV-14-08048-PCT-JZB, 2015 WL 5693544, at *3 (D. Ariz. Sept. 29, 17 2015). Because the Court has determined that the ALJ erred in the amount of weight she 18 gave to the opinions of the treating providers and Plaintiff’s subjective symptom testimony, 19 the ALJ must review the severity of Plaintiff’s mental impairments anew on remand. 20 IV. HARMLESS ERROR REVIEW 21 Since the Court has found that the ALJ erred, it must also determine if any error was 22 not harmless. Bowers-Crawford v. Acting Comm’r of Soc. Sec. Admin., 291 F. Supp. 3d 23 912, 916 (D. Ariz. 2017). If any error was not harmless such that it was not 24 “inconsequential to the ultimate nondisability determination,” the Court must reverse. See 25 Tommasetti, 533 F.3d at 1038 (citations omitted). 26 The ALJ’s erroneous discounting of the opinions of Plaintiff’s treating providers 27 was not harmless error. The vocational expert indicated that if Plaintiff’s impairments were 28 as the treating providers said, Plaintiff would not have been able to perform his “past work or other work.” (Doc. 12-3 at 63-64). Therefore, if the ALJ credited the treating providers’ || opinions, Plaintiff would have qualified for disability benefits. As such, the ALJ’s error || was not harmless because the error was not “inconsequential to the ultimate nondisability 4|| determination.” Tommasetti, 533 F.3d at 1038 (citations omitted). V. CREDIT-AS-TRUE 6 Finally, Plaintiff argues that the Court should apply the credit-as-true rule. (Doc. 15 7\| at 17). However, the ALJ’s legal errors dealt with a failure to adequately develop the 8 || record. As such, invocation of the credit-as-true rule is inappropriate as the record is not 9|| “free from conflicts, ambiguities, or gaps,” there are factual issues to resolve, and Plaintiff's entitlement to benefits is not necessarily clear under the applicable law. || Treichler, 775 F.3d at 1103-04. Instead, “further administrative proceedings would be useful.” See id. at 1103. The inadequate reasoning behind discounting the testimony of Plaintiffs’ treating providers leaves open the question of whether Plaintiff is disabled. Indeed, developing the record by appropriately addressing the weight of □□□□□□□□□□□ 15 || subjective symptom testimony and the weight of the opinions of Plaintiffs treating providers will help determine if Plaintiff is in fact disabled. It is the ALJ’s duty to 17 || adequately develop the record. Tonapetyan, 242 F.3d at 1150. Therefore, application of the 18 || credit-as-true rule is not appropriate here, and the Court will remand for a new hearing. 19} VI. CONCLUSION 20 Based on the foregoing, 21 IT IS ORDERED that the decision of the Commissioner is REVERSED AND 22 || REMANDED for further proceedings consistent with this Order. The Clerk of Court shall 23 || enter judgment accordingly.’ 24 Dated this 10th day of December, 2019. 25 7 Le 26 / James A. Teilborg Senior United States District Judge 7 To the extent mandate is required, the judgment shall serve as the mandate. -16-