Opinion
Case No. 2:18-cv-01825-MAA
11-28-2018
IRINA Z., Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER REVERSING DECISION OF THE COMMISSIONER AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS
Plaintiff has filed a Complaint seeking review of the Commissioner's final decision denying her application for disability benefits pursuant to Title II of the Social Security Act. This matter is fully briefed and ready for decision. For the reasons discussed below, the Commissioner's final decision is reversed, and this matter is remanded for further administrative proceedings.
ADMINISTRATIVE BACKGROUND
On November 10, 2014, Plaintiff filed an application for a period of disability and Disability Insurance Benefits, alleging disability beginning on September 17, 2007. (Administrative Record [AR] 26, 151-54.) Plaintiff alleged disability due to major depression, inability to concentrate, severe headaches, insomnia, panic attacks, loss of memory, withdrawal from social life, lack of any interests, mood swings, and numbness in her fingers. (AR 85.) After her application was denied initially, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 26, 99-100.) At a hearing held October 4, 2016, Plaintiff appeared with counsel, and the ALJ heard testimony from Plaintiff and a vocational expert. (AR 38-84.)
In a decision issued on November 29, 2016, the ALJ denied Plaintiff's claim after making the following findings pursuant to the Commissioner's five-step evaluation. (AR 26-34.) Plaintiff had not engaged in substantial gainful activity during the period from her alleged disability onset date of September 17, 2007 to her date last insured of December 31, 2012. (AR 28.) She had severe impairments consisting of depression and anxiety. (Id.) She did not have an impairment or combination of impairments that met or medically equaled the requirements of one of the impairments from the Commissioner's Listing of Impairments. (AR 30.) She had a residual functional capacity to perform a full range of work at all exertional levels but with various non-exertional limitations, including a limitation to simple, routine, and repetitive tasks. (Id.) Although Plaintiff was unable to perform her past relevant work (AR 32), she was able to perform other work existing in significant numbers in the national economy, specifically, the occupations of general laborer, laundry laborer, and industrial cleaner (AR 33). Accordingly, the ALJ concluded that Plaintiff was not disabled as defined by the Social Security Act. (AR 34.) ///
On January 8, 2018, the Appeals Council denied Plaintiff's request for review. (AR 1-6.) Thus, the ALJ's decision became the final decision of the Commissioner.
DISPUTED ISSUES
The parties raise the following disputed issues:
1. Whether the ALJ properly determined that Plaintiff's plantar and fasciitis and Hashimoto's Thyroiditis did not qualify as severe impairments;
2. Whether the ALJ properly considered the opinion of Plaintiff's treating psychiatrist; and
3. Whether the ALJ properly considered Plaintiff's subjective symptom allegations.
STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), the Court reviews the Commissioner's final decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. See Treichler v. Commissioner of Social Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial evidence means "more than a mere scintilla" but less than a preponderance. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The Court must review the record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is susceptible of more than one rational interpretation, the Commissioner's interpretation must be upheld. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
DISCUSSION
For the reasons discussed below, reversal and remand for further administrative proceedings are warranted for Issue Three, based on the ALJ's evaluation of Plaintiff's subjective symptom allegations. It is therefore unnecessary to address Issues One and Two. See Marcia v. Sullivan, 900 F.2d 172, 177 n.6 (9th Cir. 1990) (declining to decide alternate issues where reversal otherwise is warranted); Light v. Soc. Sec. Admin., 119 F.3d 789, 793 n.1 (9th Cir. 1997) (same).
A. Plaintiff's Subjective Symptom Allegations (Issue Three).
1. Legal Standard.
An ALJ must make two findings in assessing a claimant's pain or symptom allegations. Social Security Ruling ("SSR") 16-3P, 2017 WL 5180304, at *3; Treichler, 775 F.3d at 1102. "First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged." Treichler, 775 F.3d at 1102 (citation omitted). "Second, if the claimant has produced that evidence, and the ALJ has not determined that the claimant is malingering, the ALJ must provide specific, clear and convincing reasons for rejecting the claimant's testimony regarding the severity of the claimant's symptoms" and those reasons must be supported by substantial evidence in the record. Id.; see also Marsh v. Colvin, 792 F.3d 1170, 1174 n.2 (9th Cir. 2015).
"A finding that a claimant's testimony is not credible 'must be sufficiently specific to allow a reviewing court to conclude the adjudicator rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit a claimant's testimony regarding pain.'" Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (quoting Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en banc)). ///
Effective March 28, 2016, SSR 16-3P rescinded and superseded the Commissioner's prior rulings as to how the Commissioner will evaluate a claimant's statements regarding the intensity, persistence, and limiting effects of symptoms in disability claims. See SSR 16-3P, 2017 WL 5180304, at *1. Because the ALJ's decision in this case was issued on November 29, 2016, it is governed by SSR 16-3P. See id. at *13 and n.27. In pertinent part, SSR 16-3P eliminated the use of the term "credibility" and clarified that the Commissioner's subjective symptom evaluation "is not an examination of an individual's character." SSR 16-3P, 2017 WL 5180304, at *2; see also Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017). These changes are largely stylistic and are consistent in substance with Ninth Circuit precedent that existed before the effective date of SSR16-3P. See Trevizo, 871 F.3d at 678 n.5.
2. Background.
Plaintiff last worked in 2007, when she quit her job in medical billing and collections. (AR 43.) For purposes of her disability claim pursuant to Title II, the relevant period of alleged disability was from Plaintiff's alleged onset date of September 17, 2007 to her date last insured of December 31, 2012. (AR 28.) At the hearing, she testified as follows about her symptoms during that period.
Plaintiff's alleged symptoms are primarily mental. (AR 55, 75, 85.) She quit her last job in medical billing and collections because of her inability to concentrate and forgetfulness. (AR 43-44.) She has panic attacks, especially when she goes outdoors or is around other people. (AR 45, 69-70.) Although her psychiatrist advised her to try doing artwork or walking, she struggles to do it. (AR 46-47.) She has headaches and dizziness, feels exhausted, and on most days feels like she cannot get out of bed. (AR 48-49.) She gets anxious and starts to cry for no reason. (AR 51.) She cannot do any kind of job, even a simple job, because she could not concentrate long enough. (AR 59-60.) Her medications include Ambien, Xanax, Lunesta, Imipramine, Celexa, and Tramadol. (AR 62.) She can never be alone because of her anxiety. (AR 67.)
Plaintiff also alleged physical symptoms. She has foot pain that makes it hard to walk and for which she wears special shoes. (AR 52, 53, 64.) She has numbness in her fingers. (AR 53-54.) She has pain in her neck and lower back. (AR 57.) She experiences vertigo and dizziness. (AR 68-69.)
The ALJ asked Plaintiff why, if her condition was so bad, she waited until 2014 to apply for benefits. (AR 55.) Plaintiff responded that she did not realize she could apply for benefits earlier. (Id.)
3. Analysis.
In assessing Plaintiff's subjective symptom allegations, the ALJ first found that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms. (AR 31.) The ALJ next found, however, that Plaintiff's statements concerning the intensity, persistence, and limiting effects of these symptoms were not entirely consistent with the medical evidence and other evidence in the record. (Id.) In support of this determination, the ALJ articulated two reasons. (Id.) As discussed below, the two reasons did not amount to clear and convincing reasons supported by substantial evidence in the record.
a. timing of Plaintiff's application for disability.
The ALJ's first reason for rejecting Plaintiff's subjective symptom allegations was based on the belatedness of her application for disability benefits: Plaintiff "did not file the instant application until November 2014, i.e., approximately seven years after she stopped working [in 2007] and nearly two years after the date last insured [in December 2012]. Consequently, the record reflects no allegations that are contemporaneous with the period at issue in this case." (AR 31.)
This reason is legally insufficient because it does not account for Plaintiff's explanation for the timing of her application. She testified at the hearing that she filed the application in 2014 because she did not know she could have filed it sooner: "I didn't realize that I can file. It did not even occur to me that I can do anything at the — I just didn't even know about that." (AR 55.)
An ALJ's stated reason to reject a claimant's subjective symptom allegations must account for all the competent evidence that is relevant to that reason. See Diedrich v. Berryhill, 874 F.3d 634, 642-43 (9th Cir. 2017) (holding that an ALJ's citation to evidence of daily activities as undermining a claimant's testimony was erroneous when it "ignored other evidence" relevant to that issue) (citing Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (ALJ may not justify a credibility finding by "ignoring competent evidence in the record that suggests an opposite result")). If believed, Plaintiff's explanation about her ignorance of the availability of disability benefits would have justified the timing of her application, which in turn would have had little bearing on the evaluation of her subjective symptom allegations. Although the ALJ certainly could have rejected Plaintiff's explanation, it was incumbent upon the ALJ to make an explicit finding if it were the case. A reviewing court cannot make such a finding independently. See Connett v. Barnhart, 340 F.3d 870, 874 (9th Cir. 2003) ("[W]e cannot rely on independent findings of the district court. We are constrained to review the reasons the ALJ asserts.").
In sum, this is not a clear and convincing reason based on substantial evidence in the record to reject Plaintiff's subjective symptom allegations.
b. lack of support by medical evidence.
The ALJ's second and final reason to reject Plaintiff's subjective symptom allegations was a lack of evidentiary substantiation or support: ///
Although [Plaintiff] now alleges she had disabling symptoms prior to December 2012, the contemporaneous evidence fails to substantiate or otherwise support her current allegations. As already discussed, the medical records through the date last insured do not show evidence of any "severe" physical impairment(s). Nor does the longitudinal record show evidence of any mental impairment(s) more limiting than found herein during the period at issue.(AR 31.)
"Although lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in his credibility analysis." See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Here, however, even assuming that the ALJ's conclusion of lack of evidentiary substantiation or support had some basis in the record, it was legally insufficient to reject Plaintiff's subjective symptom allegations for two reasons.
First, this reason forms the sole basis for the ALJ's discounting of Plaintiff's testimony because as discussed above, the first reason, premised on the timing of Plaintiff's application, is legally insufficient. And by itself, a reason based on lack of objective medical support cannot constitute substantial evidence to support an ALJ's rejection of a claimant's subjective symptom allegations. See Robbins v. Social Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006) (holding that where an ALJ's other reason to reject the claimant's testimony was legally insufficient, the sole remaining reason premised on the absence of objective medical support could not justify the credibility determination); see also Bunnell, 947 F.2d at 345 ("[A]n adjudicator 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").
Second, even assuming for purposes of argument that this type of reason by itself could constitute substantial evidence, it still would be legally insufficient in this case because of its lack of specificity. The ALJ reached a conclusion that the contemporaneous evidence fails to substantiate or otherwise support Plaintiff's current allegations, but he does not support that conclusion, other than stating a general finding about Plaintiff's physical impairments, with any specific evidence that is tied to Plaintiff's subjective symptom allegations. See Robbins, 466 F.3d at 884 (finding that even if the ALJ's conclusion of lack of medical support of the claimant's testimony was facially legitimate, "the complete lack of meaningful explanation gives this court nothing with which to assess its legitimacy"); see also Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993) ("If the ALJ wished to reject Dodrill's pain testimony, he was required to point to specific facts in the record which demonstrate that Dodrill is in less pain than she claims."). Particularly as to Plaintiff's allegations of mental symptoms, no specific evidence is cited for the conclusion that the evidence failed to substantiate or otherwise support those allegations, even though they are the primary and most critical aspects of Plaintiff's claim of disability. (AR 55, 75, 85.)
In sum, this final reason also is not a clear and convincing reason based on substantial evidence in the record to reject Plaintiff's subjective symptom allegations.
B. Remand for further administrative proceedings.
Ninth Circuit case law "precludes a district court from remanding a case for an award of benefits unless certain prerequisites are met." Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (citations omitted). "The district court must first determine that the ALJ made a legal error, such as failing to provide legally sufficient reasons for rejecting evidence." Id. "If the court finds such an error, it must next review the record as a whole and determine whether it is fully developed, is free from conflicts and ambiguities, and all essential factual issues have been resolved." Id. (citation and internal quotation marks omitted). ///
Although the Court has found legal error as discussed above, the record on the whole is not fully developed, and essential factual issues remain outstanding. The discredited evidence raises factual conflicts about Plaintiff's level of functioning that "should be resolved through further proceedings on an open record before a proper disability determination can be made by the ALJ in the first instance." See Brown-Hunter, 806 F.3d at 496; see also Treichler, 775 F.3d at 1101 (stating that remand for an award of benefits is inappropriate where "there is conflicting evidence, and not all essential factual issues have been resolved") (citation omitted); Strauss v. Commissioner of the Social Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011) (same where the existing record does not clearly demonstrate that the claimant is disabled within the meaning of the Social Security Act).
Therefore, based on its review and consideration of the entire record, the Court has concluded on balance that a remand for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g) is warranted here. It is not the Court's intent to limit the scope of the remand.
ORDER
It is ordered that Judgment be entered reversing the decision of the Commissioner of Social Security and remanding this matter for further administrative proceedings. DATED: November 28, 2018
/s/_________
MARIA A. AUDERO
UNITED STATES MAGISTRATE JUDGE