Pierce v. Commissioner of Social Security Administration ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Carol Ann Pierce, No. CV-19-03416-PHX-DJH 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 14 Defendant. 15 16 At issue is the denial of Plaintiff Carol Pierce’s Application for Disability Insurance 17 Benefits by the Social Security Administration under the Social Security Act (the Act). 18 Plaintiff filed a Complaint (Doc. 1) with this Court seeking judicial review of that denial, 19 and the Court now addresses Plaintiff’s Opening Brief (Doc. 9, Pl. Br.), Defendant Social 20 Security Administration Commissioner’s Response Brief (Doc. 13, Def. Br.), and 21 Plaintiff’s Reply (Doc. 14, Reply). The Court has reviewed the briefs and Administrative 22 Record (Doc. 8, R.) and now reverses the Administrative Law Judge’s (ALJ) decision (R. 23 at 17–35) as upheld by the Appeals Council (R. at 1–7). 24 I. BACKGROUND 25 Plaintiff filed an application for Disability Insurance Benefits on November 12, 26 2014 for a period of disability beginning on October 24, 2013. (R. at 20.) Her claim was 27 denied initially on December 16, 2014, and upon reconsideration on January 4, 2016. (R. 28 at 20.) Plaintiff appeared before the ALJ on November 20, 2017 for a hearing regarding 1 her claim. (R. at 20.) On April 30, 2018, the ALJ denied Plaintiff’s claim, and on April 3, 2 2019 the Appeals Council denied Plaintiff’s Request for Review of the ALJ’s decision. (R. 3 at 1, 30.) 4 The Court has reviewed the medical evidence in its entirety and finds it unnecessary 5 to provide a complete summary here. The pertinent medical evidence will be discussed in 6 addressing the issues raised by the parties. Upon considering the medical records and 7 opinions, the ALJ evaluated Plaintiff’s disability based on the following severe 8 impairments: vertigo, traumatic brain injury, myofascial pain syndrome, thoracic 9 intercostal neuritis, post-herpetic neuralgia, bilateral tricompartment osteoarthritis of the 10 knees, and degenerative disc disease of the cervical spine. (R. at 22.) 11 Ultimately, the ALJ evaluated the medical evidence and testimony and concluded 12 that Plaintiff is not disabled. (R. at 30.) The ALJ determined that Plaintiff “does not have 13 an impairment or combination of impairments that meets or medically equals the severity 14 of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.” (R. at 23.) 15 Additionally, the ALJ determined that Plaintiff has the residual functional capacity (RFC) 16 to perform light work with the following limitations: (1) she is capable of lifting/carrying 17 20 pounds occasionally and up to 10 pounds frequently, (2) she is limited to 18 standing/walking for 6 hours per workday, (3) she is limited to sitting for 6 hours per 19 workday, (4) she can occasionally climb ramps and stairs, (5) she can never climb ladders, 20 ropes, or scaffolds, (6) she can occasionally balance and frequently stoop, kneel, crouch, 21 or crawl, and (7) she must avoid hazards, such as moving machinery and unprotected 22 heights. Accordingly, the ALJ found that Plaintiff could perform her past work as a medical 23 assistant. (R. at 29.) 24 II. LEGAL STANDARD 25 In determining whether to reverse an ALJ’s decision, the district court reviews only 26 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 27 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability 28 determination only if the determination is not supported by substantial evidence or is based 1 on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is 2 relevant evidence that a reasonable person might accept as adequate to support a conclusion 3 considering the record as a whole. Id. To determine whether substantial evidence supports 4 a decision, the Court must consider the record as a whole. Id. Generally, “[w]here the 5 evidence is susceptible to more than one rational interpretation, one of which supports the 6 ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 7 954 (9th Cir. 2002) (citations omitted). 8 To determine whether a claimant is disabled for purposes of the Act, the ALJ 9 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 10 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 11 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 12 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 13 § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 14 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At 15 step three, the ALJ considers whether the claimant’s impairment or combination of 16 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 17 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically 18 found to be disabled. Id. At step four, the ALJ assesses the claimant’s RFC and determines 19 whether the claimant is still capable of performing past relevant work. 20 C.F.R. 20 § 404.1520(a)(4)(iv). If so, the claimant is not disabled, and the inquiry ends. Id. At the 21 fifth and final step, the ALJ determines whether the claimant can perform any other work 22 in the national economy based on the claimant’s RFC, age, education, and work experience. 23 20 C.F.R. § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 24 III. ANALYSIS 25 Plaintiff raises three arguments for the Court’s consideration. (Pl. Br. at 2.) First, 26 Plaintiff argues that the ALJ erroneously rejected her testimony regarding the severity of 27 her symptoms. Second, Plaintiff argues that the ALJ erroneously rejected the third-party 28 statements of Plaintiff’s husband, daughter, and sister. Third, Plaintiff argues that the ALJ 1 did not properly evaluate and explain Plaintiff’s RFC determination. The Court agrees with 2 each of Plaintiff’s arguments. 3 A. The ALJ erred because she rejected Plaintiff’s testimony for an insufficient reason—a lack of supporting objective medical evidence. 4 5 At her hearing, Plaintiff testified regarding the functional limitations caused by her 6 medical impairments. (R. at 51–69.) Plaintiff’s testimony focused primarily on her 7 limitations due to vertigo, which she claims prevent her from working. (R. at 57–61.) Her 8 vertigo began after a head injury in October 2013, and it causes issues with concentration, 9 balance, nausea, and light-headedness. (R. at 57–60.) Plaintiff also testified that she 10 experiences vertigo nearly every day, that she cannot predict when symptoms will occur, 11 and that surgical intervention is not an option. (R. at 58, 61, 64.) 12 The ALJ rejected Plaintiff’s testimony because it was “not entirely consistent with 13 the medical evidence.” (R. at 26.) The ALJ noted that Plaintiff’s vertigo causes her some 14 limitations but found that they are not as severe as alleged based on the objective medical 15 evidence. (R. at 26.) To support her opinion the ALJ summarized the medical evidence 16 regarding Plaintiff’s impairments, including her vertigo, and listed evidence that 17 purportedly contradicts Plaintiff’s claims. (R. at 26–27.) The ALJ also listed evidence 18 regarding Plaintiff’s treatment history and medications, including her use of Meclizine for 19 dizziness, and her failure to undergo mental health counseling and other possible 20 treatments. (R. at 27.) 21 ALJs perform a two-step analysis to evaluate a claimant’s testimony regarding pain 22 and symptoms. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). First, the ALJ 23 evaluates whether the claimant has presented objective medical evidence of an impairment 24 “which could reasonably be expected to produce the pain or symptoms alleged.” 25 Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007) (quoting Bunnell v. 26 Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal quotation marks omitted)). 27 If the claimant presents such evidence then “the ALJ can reject the claimant’s testimony 28 about the severity of her symptoms only by offering specific, clear and convincing reasons 1 for doing so.” Garrison, 759 F.3d at 1014–15 (citing Smolen v. Chater, 80 F.3d 1273, 1281 2 (9th Cir. 1996)). This is the most demanding standard in Social Security cases. Id. at 1015. 3 ALJs “may not reject a claimant’s subjective complaints based solely on a lack of medical 4 evidence to fully corroborate the alleged severity of pain.” Burch v. Barnhart, 400 F.3d 5 676, 680 (9th Cir. 2005). 6 The ALJ erred because the only reason she offered for rejecting Plaintiff’s 7 testimony—its inconsistency with the objective medical evidence—cannot be the sole 8 reason for rejecting a claimant’s testimony. Id. The ALJ mechanically listed the medical 9 evidence in the record without explanation of which evidence supports or contradicts 10 Plaintiff’s testimony. (R. at 26–28.) Even if a claimant’s testimony could be rejected solely 11 because of its inconsistency with the medical evidence, the ALJ did not offer a specific, 12 clear, and convincing basis for doing so here. See Reddick v. Chater, 157 F.3d 715, 722 13 (9th Cir. 1998) (“The ALJ must specify what testimony is not credible and identify the 14 evidence that undermines the claimant's complaints.”). 15 Defendant argues that the ALJ provided two additional reasons for rejecting 16 Plaintiff’s testimony that were specific, clear, convincing, and supported by substantial 17 evidence. (Def. Br. at 7–8.) Specifically, Defendant argues that the ALJ rejected Plaintiff’s 18 testimony because (1) Plaintiff’s activities of daily living (ADLs) were inconsistent with 19 her testimony, and (2) Plaintiff’s vertigo improved. (Def. Br. at 7–8.) 20 The Court disagrees. The ALJ did not provide these reasons as justification for 21 rejecting Plaintiff’s testimony. Instead, Defendant synthesized these reasons from the 22 ALJ’s summary of the medical records and the ALJ’s analysis of Dr. Rachel Sy’s opinion.1 23 See Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018) (“A reviewing court may only 24 consider the reasons provided by the ALJ in the disability determination and may not affirm 25 the ALJ on a ground upon which he did not rely.”) (citations and quotations omitted). 26 1 One of the reasons the ALJ offered for rejecting Dr. Sy’s opinion was because 27 Plaintiff’s ADLs were allegedly inconsistent with Dr. Sy’s opinion. (R. at 29.) However, the ALJ did not point to Plaintiff’s ADLs as specifically contradicting Plaintiff’s testimony. 28 See Garrison, 759 F.3d at 1014–16 (finding error where the ALJ failed to specify which testimony was contradicted by the claimant’s ADLs). 1 Similarly, the ALJ never expressed that Plaintiff’s alleged improvement with treatment, or 2 allegedly conservative medical treatment contradicted her testimony.2 Thus the Court 3 declines to affirm the ALJ on bases she did not rely on. 4 Therefore, the ALJ erred because she did not give a sufficient reason for rejecting 5 Plaintiff’s testimony. 6 B. The ALJ erred by rejecting the third-party statements of Plaintiff’s husband, daughter, and sister. 7 8 Plaintiff’s family members submitted third-party function reports on her behalf. (R. 9 at 249–56, 263–70, 297–304.) These reports detailed lay observations regarding Plaintiff’s 10 daily activities, functional abilities, and impairments. Plaintiff’s husband, daughter, and 11 sister all described Plaintiff’s observed limitations related to balance while standing and 12 walking. (R. at 250, 263, 297.) The ALJ gave the statements “little weight as [they] are lay 13 opinions based upon casual observation, rather than objective medical and (sic) testing.” 14 (R. at 29.) 15 An ALJ need only give “germane” reasons for discrediting lay witness testimony. 16 Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012). Nevertheless, an ALJ must consider 17 lay witness observations “because subjective descriptions may indicate more severe 18 limitations or restrictions than can be shown by objective medical evidence alone.” See 19 SSR 96-8p. Furthermore, similar to a claimant’s testimony, an ALJ cannot reject lay 20 witness testimony simply because it is not supported by objective medical evidence. Bruce 21 v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009). This is because “some individuals may 22 experience symptoms differently and may be limited by symptoms to a greater or lesser 23 24 2 Even if the ALJ had rejected Plaintiff’s testimony because of her ADLs and 25 improvement with treatment, those reasons would not have been supported by substantial evidence. The ADLs the ALJ cited do not appear to be inconsistent with Plaintiff’s 26 testimony regarding chronic vertigo, and the ALJ did not explain why they might be. Additionally, the record demonstrates that Plaintiff’s vertigo was ongoing and largely 27 unresponsive to treatment. (R. at 339, 445, 451, 501, 511, 562, 574, 588, 590.) See Holohan v. Massanari, 246 F.3d 1195, 1207 (9th Cir. 2001) (stating that ALJs may not rely on 28 isolated instances in the record to support their conclusions rather than the record as a whole). 1 extent than other individuals with the same medical impairments, the same objective 2 medical evidence, and the same non-medical evidence.” SSR 16-3. 3 The ALJ did not give germane reasons for rejecting any of Plaintiff’s lay witness 4 statements. Simply put, the ALJ rejected the opinions because they were not backed by 5 medical evidence. However, the lay witness opinions are valuable because they might 6 reveal information about a claimant’s impairments and limitations that might not be 7 captured by the available medical evidence. The ALJ rejecting the opinions for the exact 8 reason they could crystalize Plaintiff’s case. This was error. 9 C. The ALJ erred by rejecting the opinion of Plaintiff’s treating physician, Dr. Rachel Sy. 10 11 Plaintiff claims that the ALJ provided an inadequate explanation for the Plaintiff’s 12 RFC based on the medical evidence. (Pl. Br. at 13.) The ALJ’s assessment of Plaintiff’s 13 RFC was partly based on her evaluation of the medical evidence and opinions. The ALJ 14 gave partial weight to the opinion of non-examining physician Dr. Ernest Griffith because 15 it was purportedly consistent with the medical evidence. (R. at 28.) She gave little weight 16 to non-examining physician Dr. John Kurtin because he opined that Plaintiff could perform 17 medium exertion rather than light exertion. Finally, the ALJ gave little weight to the 18 opinion of Dr. Rachel Sy, Plaintiff’s treating physician, because “her opinion is completely 19 inconsistent with the record, including to (sic) her own treating notes.” (R. at 29.) 20 An ALJ must include in a claimant’s RFC only those limitations that are supported 21 by substantial evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006). 22 However, an ALJ must consider the medical evidence, and if she rejects a treating 23 physician’s opinion, she must “set forth h[er] own interpretations and explain why they, 24 rather than the doctor[‘s], are correct.” Garrison, 759 F.3d at 1012. If a treating doctor’s 25 opinion is contradicted by another doctor’s opinion, the ALJ may not reject the treating 26 doctor’s opinion without setting forth “specific and legitimate reasons” for doing so that 27 are based on substantial evidence in the record. Bayliss v. Barnhart, 427 F.3d 1211, 1216 28 (9th Cir. 2005). 1 Whether the ALJ correctly calculated Plaintiff’s RFC depends on whether the ALJ 2 correctly evaluated Dr. Sy’s opinion. The Court concludes that the ALJ did not. 3 Based on her treatment of Plaintiff since October 2013, Dr. Sy opined that Plaintiff 4 has various functional limitations related to chronic vertigo that originated from a subdural 5 hematoma. (R. at 586–87.) The limitations include sitting, standing, and walking 6 limitations that prevent Plaintiff from working more than four hours per workday. (R. at 7 586.) According to Dr. Sy, Plaintiff is unable to perform various postural activities. (R. at 8 587.) Because of her symptoms and side effects from her medications, Plaintiff would 9 experience various non-exertional limitations that would distract her from job activities 10 more than 20% of the workday. (R. at 587.) Finally, she would likely miss more than four 11 days of work per month because of impairments or treatment. (R. at 587.) 12 The ALJ’s rejection of Dr. Sy’s opinion is not supported by substantial evidence. 13 The ALJ pointed to Plaintiff’s ADLs and Dr. Sy’s treatment records to support her 14 conclusion that Dr. Sy’s opinion is contradicted by the record. As noted above, Plaintiff’s 15 ADLs, which include “getting along with family, friends, neighbors or others and [having] 16 a membership with the American legion” are not inconsistent with Plaintiff’s limitations 17 due to chronic and episodic vertigo. (R. at 29.) 18 Furthermore, the ALJ’s discussion of the medical evidence does not specifically or 19 legitimately refute Dr. Sy’s opinion regarding Plaintiff’s limitations. See Garrison, 759 20 F.3d at 1012. The ALJ pointed to medical records that indicate findings of normal gait, 21 strength, coordination, alertness, orientation, memory, and communication as evidence that 22 contradicts Dr. Sy’s findings. (R. at 29.) These findings are undisputed, but they do not 23 address the limitations that Dr. Sy opined to, which stem from chronic, episodic, and 24 unpredictable vertigo.3 Moreover, the ALJs finding that “Dr Sy’s own treatment notes 25 indicated that the claimant had some balance and vertigo problems, but was doing much 26 3 It is not clear that all of the records cited by the ALJ actually support her 27 conclusions. For example, the ALJ cited Exhibits 1F/12 and 1F/14 for the proposition that Plaintiff had normal gait, strength, and coordination. (R. at 29.) However, those records do 28 not contain any findings related to Plaintiff’s gait, strength or coordination. (R. at 327, 329.) 1 better,” is not supported by substantial evidence. (R. at 29.) The ALJ supported that finding 2 with a single treatment record from January 2014, wherein Dr. Sy noted that Plaintiff’s 3 vertigo was doing much better at that time. (R. at 329.) However, over three years later, 4 Dr. Sy noted that Plaintiff’s vertigo was still an issue. (R. at 562.) See Ghanim v. Colvin, 5 763 F.3d 1154, 1164 (9th Cir. 2014) (stating that occasional signs of improvement do not 6 undermine consistent impairments in the overall record). 7 Dr. Sy’s opinion regarding Plaintiff’s vertigo and her attendant limitations was well 8 supported by the record. (R. at 339, 445, 451, 501, 511, 562, 587, 588, 590.) Consequently, 9 the ALJ erred by rejecting her opinion. 10 D. Remand for calculation of benefits is the appropriate remedy. 11 The credit-as-true rule, if applied here, would result in a remand of Plaintiff’s case 12 for calculation and payment of benefits. Garrison, 759 F.3d at 1020. It applies if each part 13 of a three-part test is satisfied. Id. First, the record must have been fully developed such 14 that further administrative proceedings would serve no useful purpose. Id. Next, the ALJ 15 must have failed to provide sufficient reasons for rejecting claimant’s testimony or medical 16 opinions. Id. Finally, if the improperly discredited evidence were credited as true, then the 17 ALJ would be required to find the claimant disabled. Id. The credit-as-true rule allows for 18 some flexibility and balances efficiency and fairness in conjunction with the requirement 19 that a claimant actually be disabled in order to receive benefits. Id. at 1021. Thus, even if 20 all the rule’s requirements are met, the Court may still decline to apply the rule if there is 21 “serious doubt” that the claimant is, in fact, disabled. Id. 22 All of the elements of the credit-as-true rule are met. First, the record is fully 23 developed and additional proceedings would serve no useful purpose. Next, the ALJ 24 provided insufficient reasons for rejecting Plaintiff’s symptom testimony, the lay witness 25 opinions, and Dr. Sy’s opinion. Finally, the vocational expert testified if claimant was off- 26 task for more than 11% per workday, then she would be precluded from work. (R. at 68.) 27 And as noted above, Dr. Sy found that Plaintiff would be off-task for more than 20% per 28 workday, and Plaintiff testified to experiencing vertigo nearly every day. (R. at 64, 587.) || If this evidence is credited as true, then the ALJ would be required to find that Plaintiff is 2|| disabled. 3 Finally, there is not serious doubt as to whether Plaintiff is, in fact, disabled. Her 4|| vertigo is extensively document throughout the record. (R. at 339, 445, 451, 501, 511, 562, || 587, 588, 590). Medication did not alleviate her symptoms and, as one doctor stated, “[I]t || is quite possible this is permanent.” (R. at 511.) Furthermore, this result squares with the fairness considerations of the credit-as-true rule and avoids allowing an inefficient do-over. 8 || See Benecke v. Barnhart, 379 F.3d 587 595 (9th Cir. 2004). 9 Accordingly, the Court will remand for calculation and entry of benefits. 10 IT IS THEREFORE ORDERED reversing the April 25, 2018 decision of the 11 || Administrative Law Judge (R. at 17-35), as upheld by the Appeals Council on April 3, 12}} 2013 (R. at 1-7). 13 IT IS FURTHER ORDERED remanding this case to the Social Security Administration for a calculation of benefits. 15 IT IS FURTHER ORDERED directing the Clerk to enter final judgment consistent with this Order and close this case. 17 Dated this 7th day of February, 2020. 18 19 oC. . joe □ 20 norable’ Diang4. Hurmetewa 1 United States District Fudge 22 23 24 25 26 27 28 -10-