Andrews v. Commissioner of Social Security Administration ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 David Robert Andrews, No. CV-20-00954-PHX-DJH 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff seeks judicial review of Defendant Social Security Administration (“SSA”) 16 Commissioner’s decision denying his application for SSA disability benefits. Plaintiff 17 filed his Opening Brief (Doc. 16) on February 26, 2021. Defendant filed a Response Brief 18 (Doc. 20) on May 13, 2021, and Plaintiff filed his Reply Brief (Doc. 24) on June 2, 2021. 19 For the following reasons, the Court remands this matter to the Commissioner for further 20 proceedings. 21 I. Background 22 Plaintiff began these proceedings, on October 17, 2014, by filing a protective filing 23 for supplemental security income, which was denied on May 12, 2015. (R. at 20).1 24 Plaintiff then filed a claim for benefits on March 2, 2017, alleging a disability onset date 25 of January 1, 2015. (Id.) The claim was denied on August 8, 2017, and again upon 26 reconsideration on December 7, 2017. (Id.) On December 6, 2019, the ALJ issued an 27 unfavorable decision. (R. at 17). On March 19, 2020, the SSA Appeals Council denied 28 1 A certified copy of the Administrative Record (“R.”) was filed by Defendant on October 29, 2020. (Doc. 13). 1 Plaintiff’s request for review. (R. at 1). This appeal followed. 2 The ALJ found that, since October 17, 2014 Plaintiff was not disabled as defined 3 by the Social Security Act. (R. at 22). Plaintiff had not engaged in substantial gainful 4 activity since he submitted his protective filing and, although he had several severe mental 5 impairments, the ALJ found he still had the residual functional capacity to perform “a full 6 range of work at all exertional levels” provided that he only be required to “follow simple 7 instructions for unskilled work with occasional contact with coworkers and the public.” 8 (R. at 24, 27). The ALJ came to this conclusion after reviewing several expert medical 9 evaluations, among other medical evidence. (R. at 27). Although the ALJ heard Plaintiff’s 10 testimony, in which Plaintiff claimed a much more limited functional capacity, the ALJ 11 found the testimony to be inconsistent with the other evidence and so rejected it. (R. at 12 31). 13 Plaintiff challenges the ALJ’s decision to reject his own symptom testimony and the 14 ALJ’s weighting of the medical opinions. (Doc. 16 at 14, 20). Defendant concedes the 15 ALJ failed to adequately resolve contradictions in the evidence when assessing Plaintiff’s 16 functional capacity. (Doc. 20 at 4). The parties, then, agree this matter should be remanded 17 to the ALJ. Plaintiff seeks remand for calculation of benefits, (Doc. 16 at 25), while 18 Defendant seeks remand for further administrative proceedings (Doc. 20 at 5). 19 II. Standard of Review 20 In determining whether to reverse an ALJ’s decision, the district court reviews only 21 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 22 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability 23 determination only if it is not supported by substantial evidence or is based on legal error. 24 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The evidence the ALJ bases the decision 25 on must exemplify the broader record. Attmore v. Colvin, 827 F.3d 872, 877 (9th Cir. 26 2016). “Although the ALJ’s analysis need not be extensive, the ALJ must provide some 27 reasoning in order for us to meaningfully determine whether the ALJ’s conclusions were 28 supported by substantial evidence.” Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 1 2015) (quoting Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2 2014)). 3 Normally, the “ordinary remand rule” applies to social security matters, under which 4 a court may remand a case for further development. Treichler, 775 F.3d at 1099. However, 5 in “rare circumstances,” a court may remand a matter to calculate and award benefits. Id. 6 (quoting Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir. 2004)). To remand a matter to 7 calculate and award benefits, a court must find: 8 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide 9 legally sufficient reasons for rejecting evidence, whether claimant testimony 10 or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on 11 remand. 12 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Even if all these elements are met, 13 courts may still remand for further proceedings if “the record as a whole creates serious 14 doubt as to whether the claimant is, in fact, disabled within the meaning of the Social 15 Security Act.” Id. at 1021. 16 III. Analysis 17 The parties raise two primary issues. The first is the ALJ’s determination that 18 Plaintiff was not disabled since October 2014, when the alleged disability onset date was 19 in January 2015. The second issue relates to ambiguities in the record regarding Plaintiff’s 20 residual functional capacity. 21 a. Period Under Review 22 Plaintiff argues that because the ALJ considered the time before the alleged 23 disability onset of January 1, 2015, he “effectively reopened the determination of the prior 24 October 2014 application [for protective filing],” which had been denied. (Doc. 16 at 2 25 (quoting)). Defendant makes no counter argument in its Response. Plaintiff argues 26 because the earlier application was reopened, it would be inequitable if the ALJ were to 27 reconsider his application with a January 2015 onset date. (Id.) 28 It is not clear to the Court why the ALJ determined that Plaintiff was not disabled 1 since October 2014, when the application before him alleged an onset date of January 1, 2 2015. (R. at 20, 22). But it is clear that this ambiguity exists and that the ALJ considered 3 whether Plaintiff was disabled during the three months prior to the alleged disability onset. 4 On remand, the Commissioner is instructed to clarify this issue and acknowledge that the 5 earlier October protective filing application has, in fact, been reopened. See Lester v. 6 Chater, 81 F.3d 821, 827 n.3 (9th Cir. 1995) (noting there may be a “de facto” reopening 7 of earlier applications). 8 b. Ambiguities in the Medical Record 9 Plaintiff argues this matter should be remanded to calculate and award benefits. 10 Defendant argues further administrative proceedings would help resolve, first, a general 11 conflict in the evidence and, second, a smaller ambiguity. (Doc. 20 at 10–11). 12 The general conflict, Defendant argues, stems from the ALJ’s finding that Plaintiff 13 maintained the residual functional capacity to “follow simple instructions for unskilled 14 work with occasional contact with coworkers and the public.” (R. at 27). How the ALJ 15 arrived at this particular conclusion is, as Defendant argues, unclear. (Doc. 20 at 9). 16 At times, the ALJ stated the record shows Plaintiff was “uncooperative, poorly 17 groomed and odorous, with slowed thought content and motor behavior, anxious, 18 withdrawn, depressed and labile moods, . . . below average intelligence.” (R. at 34–35). 19 And yet the ALJ also stated, within the same paragraph, the evidence shows Plaintiff “has 20 frequently exhibited appropriate grooming and hygiene, good eye contact, cooperative, 21 friendly and fully oriented behavior and normal mood, affect, speech, thought process and 22 thought content . . . . He has demonstrated good judgment and insight, intact recent and 23 remote memory, good attention and concentration and average intelligence.” (R. at 35). 24 Defendant concedes the ALJ did not articulate how he resolved this apparent conflict in 25 the evidence. (Doc. 20 at 9). Upon review, it is not clear to the Court how the ALJ resolved 26 this conflict. 27 Because the ALJ did not state how he resolved this conflict, Defendant argues it is 28 unclear exactly how the ALJ decided to weigh medical opinion evidence. For example, 1 the ALJ noted Dr. Krabbenhoft’s opinion that Plaintiff “was able to follow simple 2 instructions.” (R. at 33 (citing R. at 724)). And he noted Dr. Gross’ opinion that Plaintiff 3 could follow “simple instructions.” (Id. (citing R. at 123)). Both of these opinions were 4 given great weight, in part because they accorded with evidence showing Plaintiff could 5 follow instructions. (Id.) But while the ALJ did cite some evidence to support this 6 decision, the ALJ left open the question of how other evidence factored into the decision, 7 such as the evidence that showed Plaintiff was “uncooperative, . . . anxious, . . . [and] below 8 average intelligence . . . .” (R. at 34). 9 Plaintiff argues this case does not warrant a remand for further proceedings simply 10 because the medical opinions conflict. He argues “[i]f that is a reason for remand for 11 further proceedings, then no federal court would ever remand ‘without remanding the cause 12 for rehearing.’” (Doc. 24 at 6 (citing 42 U.S.C. § 405(g))). But Plaintiff misses the point. 13 While Defendant cites conflicts in the medical opinions, the thrust of its argument is that 14 the ALJ did not acknowledge a greater conflict in the record when assigning weight to 15 those opinions. In fact, Plaintiff himself previously criticized the ALJ for “cherry-picking” 16 findings that showed Plaintiff’s mental function was essentially normal, which indicates 17 there were unaddressed findings to the contrary. (Doc. 16 at 17). Therefore, at some level, 18 both parties recognized the ALJ failed to resolve contradictions in the evidence. See 19 Brown-Hunter, 806 F.3d at 495. Further proceedings would help resolve this general 20 conflict. See Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (“The ALJ is 21 responsible for determining credibility, resolving conflicts in medical testimony, and 22 resolving ambiguities.”). 23 The second, smaller ambiguity is whether Plaintiff ever earned a CNA certificate. 24 The ALJ’s decision assumed, based on Plaintiff’s testimony, that Plaintiff was a CNA. (R. 25 at 33) (“[T]he undersigned notes . . . the claimant’s reported ability to earn certification 26 and work as a nursing assistant . . . .”). And the ALJ found the ability to earn such a 27 certification would be inconsistent with evidence of Plaintiff’s lower intelligence. (Id.) 28 However, Plaintiff argues that there is “no evidence or hint of evidence” that Plaintiff ever earned a CNA certificate. (Doc. 24 at 7). 2 Upon review, the Court finds more than a hint of evidence. (Doc. 20 at 11). For || example, Plaintiff testified to attending vocational school for CNA training. (R. at 77). He 4|| also testified that had worked as a personal caregiver. (R. at 78). Dr. Kaz’s report indicates || that Plaintiff earned a CNA certificate in 2000 and began work as a CNA from 2000 to 6|| 2004. (R. at 141). Dr. Geary’s evaluation also notes that Plaintiff said, “I had a job as a 7\|| CNA.” (R. at 48). However, if it is true, as Plaintiff heavily implies, that he did not earn 8 || acertificate, then further proceedings before the ALJ would be the appropriate to resolve || this factual question. See Treichler, 775 F.3d at 1098 (“[W]e leave it to the ALJ to... 10 || resolve ambiguities in the record.”). On remand the ALJ should explain why the fact that 11 |} Plaintiff obtained or did not obtain a CNA in 2000 is or is not relevant to a determination of Plaintiffs disabilities, which are alleged to have begun fourteen or fifteen years later. 13 Accordingly, 14 IT IS HEREBY ORDERED reversing the December 9, 2019 decision of the 15 || Administrative Law Judge. (R. at 17-37). 16 IT IS FURTHER ORDERED remanding this matter for further administrative || proceedings pursuant to 42 U.S.C. § 405(g). The Appeals Council will remand the case to 18 || an ALJ. On remand, an ALJ will reevaluate the medical evidence and opinions; further || consider Plaintiff's residual functional capacity; take additional action, as warranted, to 20 || complete the administrative record; and issue a new decision. 21 IT IS FINALLY ORDERED directing the Clerk to enter final judgment consistent || with this Order and close this case. 23 Dated this 21st day of July, 2021. 24 25 oC. . fo □ 26 norable'Diang4. Huretewa United States District Judge 28 -6-