Opinion
CV-21-1955-PHX-DWL (JFM)
01-30-2023
Shamika Lang, Plaintiff v. Commissioner of Social Security Administration, Defendant.
REPORT & RECOMMENDATION
James F. Metcalf United States Magistrate Judge
Plaintiff seeks review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security which denied her disability insurance benefits and supplemental security income benefits under the Social Security Act.
This matter is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(10), Local Rules of Civil Procedure.
A. SUMMARY OF THE CASE
Following two prior unsuccessful disability applications (with hearings in August 2016 and August 2019) Plaintiff has asserted that she became disabled as of September 2019, when she was 41 years old, due to spinal pain, leg arthritis, headaches, anxiety, and mood disorders. She has past work as a cashier, a warehouse worker, a banker, a caregiver, and a customer service representative.
At her hearing, Plaintiff testified that her disability primarily arose from her mental health (depression, bipolar disorder) and chronic pain. (AR 51.) She testified to pain arising from various spinal/musculoskeletal impairments (left leg, spinal). (AR 52-53.) In addition, the ALJ questioned her about her migraines. (AR 53-55.)
In a decision issued July 13, 2021, the ALJ found Plaintiff generally eligible for benefits given her date last insured, and non-employment. The ALJ found Plaintiff had the following severe impairments: depressive disorder; personality disorder; cervical degenerative disc disease; lumbar degenerative disc disease; left knee osteoarthritis; and migraines. The ALJ also found the following a non-severe impairment of hip osteoarthritis, and a non-medically determinable impairment of limited memory or cognition. The ALJ found no combination of impairments that established disability under the listings, including none on the basis of spinal disorders, extremity impairment, migraines, mental impairments or obesity. The ALJ found Plaintiff had the residual functional capacity to perform light work, except she had the following additional limitations:
the claimant can lift and/or carry up to 20 pounds occasionally and 10 pounds frequently, and has no limitations in her ability to sit, stand or walk throughout an 8 hour workday. The claimant can occasionally climb ramps and stairs, and she can occasionally stoop, kneel, balance (as defined in the Selective Characteristics of Occupations of the Dictionary of Occupational Titles), crouch, and crawl, but she can never climb ladders, ropes or scaffolds. She is not capable of working where she would be exposed to excessive vibration, or to excessive noise or bright, flashing lights exceeding what is generally encountered in an office-type work environment. The claimant is limited to working in non-hazardous environments, i.e., no driving at work, operating moving machinery, working at unprotected heights, and she should avoid concentrated exposure to unguarded hazardous machinery. The claimant is further limited to simple, routine tasks, work involving no more than simple decision-making, no more than occasional and minor changes in the work setting, and work requiring the exercise of only simple judgment. She is not capable of multitasking, or work requiring considerable self-direction. She can work at an average production pace, but not at a significantly above average or highly variable pace. She is further precluded from work involving direct public service, in person or over the phone, although the claimant can tolerate brief and superficial interaction with the public which is incidental to her primary job duties. She is unable to work in crowded, hectic environments. The claimant can tolerate brief and superficial interaction with supervisors and co-workers, but is not to engage in tandem tasks.(AR 27-28 (emphasis added).)
The Administrative Record (Doc. 18) is referenced herein as “AR”, and the labelled exhibits included in the Administrative Record are referenced herein as “Ex. .”
Plaintiff argues that the ALJ erred by: (a) rejecting Plaintiff's symptoms testimony without adequate reasons; and (b) failing to support the residual functional capacity determination with substantial evidence. Thus, Plaintiff seeks a reversal and remand for award of benefits.
B. STANDARDS OF REVIEW
Reviewed Decision - In this instance, because the Appeals Council denied review (AR 2), the ALJ's decision is the final decision of the agency, and the decision now under review. 20 C.F.R. § 404.981.
Bases for Reversal - The court may set aside the agency's disability determination only if the determination is not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
The phrase “substantial evidence” is a “term of art” used throughout administrative law to describe how courts are to review agency factfinding. Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains sufficient evidence to support the agency's factual determinations. And whatever the meaning of “substantial” in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this Court has said, is more than a mere scintilla. It means-and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (quotations, alterations and citations omitted).
Limited to ALJ's Reasoning - In reviewing the ALJ's decision, neither the parties nor the Court can manufacture their own reasons to support the decision made by the ALJ. “We review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). But in identifying the ALJ's reasons, the Court is not constrained solely by the ALJ's organization of his opinion, and can make reasonable inferences reading the decision as a whole. Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989).
C. SYMPTOMS TESTIMONY
1. Arguments
Plaintiff argues the ALJ erred by rejecting her symptoms testimony because the ALJ: (a) failed to provide specific reasons, instead referring generically to “alleged symptoms” and summarizing portions of the medical records; (b) required entire consistency with or corroboration between her symptoms testimony and the medical and other evidence; (c) relied on the waxing and waning of physical (including back and leg pain, and migraines) and mental symptoms, which is not a clear and convincing reason to reject symptoms testimony; (d) dismissed recognized instances in the record that supported the symptoms testimony, while relying on other portions of the same records without reconciliation, or while relying on outdated records; (e) failed to explain (and was not qualified to explain) how the negative findings identified impugned the symptoms testimony; (f) relied on temporary relief from treatment; (g) failed to show activities of daily living translated into a work capable persistence and pace; (h) relied on Plaintiff's use of an unprescribed action (elevating her leg) to obtain pain relief. Plaintiff argues that had her symptoms testimony been accepted then, according to the vocational expert's testimony, she would have been unemployable.
The Commissioner argues: (a) the ALJ provided multiple specific, clear and convincing reasons to reject the symptoms testimony, including inconsistency with the objective medical evidence; (b) evidence suggesting the variability of symptoms was subject to more than one rational interpretation; (c) Plaintiff's mental health symptoms were properly rejected on the basis of inconsistency with Plaintiff's activities of daily living, and repeated reports to care providers and their findings; (d) the ALJ properly relied upon a correlation between Plaintiff's mental health symptoms and her returning to work, and the conclusion that they were reactions to the stress of working rather than medical impairment, failure to comply with treatment, and reports that her termination from work were layoffs rather than disability; (e) the ALJ properly relied upon normal MRI imaging and examinations to reject her spinal and leg pain; (f) the ALJ properly relied on the fact that Plaintiff's conditions had not worsened since she was previously denied disability benefits; (g) the ALJ properly relied upon Plaintiff's improvement in physical symptoms with treatment, including surgery, epidural injections; (h) the ALJ properly relied on the lack of medical prescription for elevating her legs on a prolonged basis; (i) the ALJ properly relied on Plaintiff's conservative or limited treatment, and limited medical findings to support reliance on the waxing and waning of complaints; (j) the ALJ properly relied on effective treatment to reject symptoms testimony on headaches; (k) the ALJ properly relied on activities of daily living; and (1) the ALJ properly considered both favorable and disfavorable findings in the medical record.
2. Applicable Standard
a. Two Step Analysis for Testimony
The law recognizes that pain is inherently subjective, is (in the current state of medical science) all but impossible to measure, and is difficult to verbalize. Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). The Ninth Circuit has established a two-step analysis for determining the extent to which a claimant's symptom testimony must be credited:
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. In this analysis, the claimant is not required to show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom. Nor must a claimant produce objective medical evidence of the pain or fatigue itself, or the severity thereof.
If the claimant satisfies the first step of this analysis, and there is no evidence of malingering, the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so. This is not an easy requirement to meet: The clear and convincing standard is the most demanding required in Social Security cases.Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014) (cleaned up).
The Commissioner argues in a footnote that the Ninth Circuit's standard requiring “clear and convincing reasons” is contrary to the regulations. (ABr. at 9, n. 2.) But the Commissioner also appears to acknowledge the Ninth Circuit's standard is binding in this Court and argues that the ALJ's reasons meet it. (Id. at 9.)
Although the regulations do not appear to differentiate between testimony and other “statements” by the claimant, see e.g. 20 C.F.R. § 404.1529(a) and (c)(2), (3) and (4), the Ninth Circuit's prescription for “specific, clear and convincing reasons” is consistentlylimited to “testimony.” This distinction is logical, given the heightened credibility of statements made under penalty of perjury and subject to cross-examination.
See Smartt v. Kijakazi, 53 F.4th 489, 494-495 (9th Cir. 2022); Smith v. Kijakazi, 14 F.4th 1108, 1112 (9th Cir. 2021); Ahearn v. Saul, 988 F.3d 1111, 1116 (9th Cir. 2021); Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020); Leon v. Berryhill, 880 F.3d 1041, 1046 (9th Cir. 2017); Revels v. Berryhill, 874 F.3d 648, 655 (9th Cir. 2017); Diedrich v. Berryhill, 874 F.3d 634, 641 (9th Cir. 2017); Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017); Laborin v. Berryhill, 867 F.3d 1151, 1155 (9th Cir. 2017); Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015); Marsh v. Colvin, 792 F.3d 1170, 1174, n. 2 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014)3; Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014); Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014); Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012); Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1234 (9th Cir. 2011); Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir.2007); Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002); Moore v. Comm'r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002); Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999); Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998), as amended (Jan. 26, 1999); Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997), as amended on reh'g (Sept. 17, 1997); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995), as amended (Apr. 9, 1996); Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993).
The Commissioner summarizes Plaintiff's testimony from her previous, failed applications. (Doc. 25 at 5.) The undersigned assumes arguendo that the two-step process and the clear and convincing standard apply to this testimony. However, the ALJ did not reference this testimony, and it pertained to Plaintiff's pre-onset symptoms. Plaintiff makes no reference to such testimony in support of her claims. Indeed, Plaintiff argues that the ALJ did not address this testimony, and reference to it is improper post hoc reasoning by the Commissioner. (Doc. 26 at 3-4.)
The source of the “clear and convincing” portion of the “specific, clear and convincing reasons” standard might provide insight on its rationale and whether it should apply to non-testimonial statements. But the source of this standard is unclear. The first recitation of it occurred in Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996), with a citation to Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir.1993). Dodrill in turn cited Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir.1989) for the “clear and convincing” requirement, and Varney v. Sec'y of Health & Hum. Servs., 846 F.2d 581, 584 (9th Cir.), rev'd on other grounds on reh'g, 859 F.2d 1396 (9th Cir. 1988) for the “specific findings” requirement. Swenson in turn cited Gallant v. Heckler, 753 F.2d 1450, 1455 (9th Cir.1984) for the “clear and convincing reasons” standard. But Gallant did not explicitly adopt such a standard, nor provide any authority or rationale for it. At most, Gallant concluded that the ALJ had not provided “clear and convincing reasons” for rejecting the claimant's symptoms testimony. However, the only rule requiring “clear and convincing reasons” cited in Gallant pertained to the rule for rejecting uncontradicted medical opinions. 753 F.2d at 1454. Arguably, Gallant simply applied the standard for evaluating the medical opinions (which supported the claimant's “disability due to pain,” id.) to conclude that the ALJ's reasons for rejecting the symptoms testimony were not supported by substantial evidence, which reasons included a lack of support in the medical record for the corroborating medical opinions, when the court found uniform support of his symptoms in the medical record. Id. at 1455. Whatever its pedigree, the “clear and convincing” reasons standard is applied by the Ninth Circuit, and uniformly only to symptoms testimony.
b. Application to Non-Testimonial Statements
Even so, where the allegations of symptoms are not made by testimony, but by way of allegations or other “statements,” the ALJ must still provide specific reasons supported by substantial evidence. See 20 C.F.R. § 404.1529(a) and (c)(4). Indeed, the requirement for specificity is a broadly applicable, well-established standard in administrative law. See Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991); and Burrell, 775 F.3d at 1137.
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. General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints.Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (citations and quotation omitted).
Thus, other than the clear and convincing requirement, the two-step analysis applies to all statements, testimonial or otherwise, by the claimant about their symptoms. However, it does not apply to her counsel's arguments. Nor does it apply to Plaintiff or counsel's assertions before this Court.
c. Interpretation of Testimony and Statements
In performing the two-step analysis, the ALJ's interpretations of a claimant's testimony or other statements is entitled to the usual deference, i.e. if it is “a reasonable interpretation and is supported by substantial evidence” then it is not the Court's “role to second-guess it.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). See also Smartt v. Kijakazi, 53 F.4th 489, 500 (9th Cir. 2022) (“It is not the court's role to ‘second-guess' an ALJ's reasonable interpretation of a claimant's testimony.”).
3. Application to Plaintiff's Testimony
a. Entire Consistency
Plaintiff argues the ALJ erred by requiring entire consistency with or corroboration between her symptoms testimony and the medical and other evidence. (Op. Br. at 12-13.) Plaintiff points to the following portion of the decision:
After careful consideration of the evidence, I find that the claimant'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.”(AR 30.)
Consistency is relevant. An ALJ may consider symptoms in light of “the extent to which [those] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence.” 20 C.F.R. § 404.1529. “Contradiction with the medical record is a sufficient basis for rejecting the claimant's subjective testimony.” Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (emphasis added). Indeed, the Ninth Circuit has recognized that in conducting the Step Two analysis, relevant considerations include such things as
(1) whether the claimant engages in daily activities inconsistent with the alleged symptoms; (2) whether the claimant takes medication or undergoes other treatment for the symptoms; (3) whether the claimant fails to follow, without adequate explanation, a prescribed course of treatment; and (4) whether the alleged symptoms are consistent with the medical evidence.Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007) (emphasis added).
What is limited is the ALJ's reliance on a lack of corroboration of the degree of symptoms by objective medical evidence. Because pain is subjective and largely immeasurable, an ALJ “may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the claimant's allegations.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (emphasis added). See also Smartt v. Kijakazi, 53 F.4th 489, 498 (9th Cir. 2022); 20 C.F.R. § 404.1529(c)(2) (ALJ may not reject the claimant's “statements about the intensity and persistence of your pain or other symptoms or about the effect your symptoms have on your ability to work solely because the available objective medical evidence does not substantiate your statements”).
Conversely, a lack of corroboration in the balance of the medical record (i.e. subjective complaints, treatment, etc.), where corroboration would be expected, is relevant. Indeed, in an appropriate case it can be the sole basis for rejecting symptoms testimony. See Smolen v. Chater, 80 F.3d 1273 (9th Cir. 1996) (differentiating between corroboration of degree of symptoms at the first stage (not required because evidence of actual level of symptoms not required, just possibility of level) and at the second stage (under facts of case (limited record) lack of corroboration not found to be clear and convincing reason)); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (consideration of records on lack of treatment).
Here, the ALJ outlined the two-step process and opined with regard to the second step:
For this purpose, whenever statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, I must consider other evidence in the record to determine if the claimant's symptoms limit the ability to do work-related activities.(AR 29.) It is apparent that the ALJ understood that an absence of objective medical evidence was not sufficient to reject symptoms testimony. Moreover, the ALJ's decision shows that the ALJ at least attempted to identify inconsistencies between the symptoms testimony and the medical evidence.
b. Specificity
Plaintiff argues the ALJ erred by failing failed to provide specific reasons, instead referring generically to “alleged symptoms” and summarizing portions of the medical records. (Op. Br. at 12.) The Commissioner does not address this contention.
While an ALJ need not perform a line-by-line exegesis of the claimant's testimony, nor to draft a dissertation, an ALJ cannot simply provide a summary of the evidence and a conclusion of inconsistency, and the court cannot take a general finding (for example, an unspecified conflict between a claimant's testimony and her reports to doctors), and comb the administrative record to find specific evidence to support the general finding. Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). “General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995), as amended (Apr. 9, 1996). Nor is it sufficient for the ALJ to undertake a summary of the evidence, and then state a conclusion without providing the reasoning bridging the two. Neither the Commissioner nor the Court can invent that bridge for the ALJ, Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015), nor is speculation on it sufficient, Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991). But the court is “not deprived of [its] faculties for drawing specific and legitimate inferences from the ALJ's opinion.” Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989). “Even when an agency explains its decision with less than ideal clarity, we must uphold it if the agency's path may reasonably be discerned.” Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) (citations and quotations omitted).
Here, Plaintiff offered very limited statements about her symptoms (whether in her testimony or other statements, e.g. her Function Report). Consequently, the ALJ made few references to specific testimony or statements and, as discussed hereinafter, rejected Plaintiff' symptoms statements in only a few instances. Rather, in most instances the ALJ was careful to delineate that what he was rejecting her “allegations” of disability. (See AR 30, 32, 35, 37.) Where the ALJ did reject Plaintiff' statements, the ALJ did so with sufficient specificity.
c. Waxing and Waning
Plaintiff argues that the ALJ improperly relied on the waxing and waning of physical symptoms (including back and leg pain, and migraines) and mental symptoms, which is not a clear and convincing reason to reject symptoms testimony. (Op.Br. at 14 (citing AR 30, 31, 32, 33, 34).) Plaintiff argues static symptoms are not only not required, but variability is indicative of credibility, and the ALJ failed to show the waxing and waning was inconsistent with her symptoms testimony. (Op. Br. at 14-17.)
The Commissioner argues that recognition of variability is not anathema to a conclusion that the objective evidence is inconsistent with the symptoms testimony, and the Court must defer to the ALJ's rational interpretations of the evidence. (Ans.Br. at 9.)
If the ALJ's opinion were read as relying on the simple waxing and waning of symptoms over time as a reason to reject Plaintiff's testimony, that reason would not be clear and convincing. “Occasional symptom-free periods . . . are not inconsistent with disability,” Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995).
As we have emphasized while discussing mental health issues, it is error to reject a claimant's testimony merely because symptoms wax and wane in the course of treatment. Cycles of improvement and debilitating symptoms are a common occurrence, and in such circumstances it is error for an ALJ to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working.Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014).
The undersigned does not find the ALJ's various references to that fact to have been one of the ALJ's reasons to reject the symptoms testimony, but rather an observation on the course of her condition.
Indeed, if the Commissioner argued it was a legitimate reason, the undersigned would have rejected it as a relied upon reason, because the ALJ did little more than observe the waxing and waning, and never suggested it was the basis for rejecting the symptoms testimony.
d. Improvement, Effective Treatment, and Cherry Picking
Plaintiff argues the ALJ erred by relying on temporary improvement and relief from treatment, while cherry picking the evidence upon which he relied.
An ALJ may properly rely on sustained medical improvement to reject a claimant's subjective symptoms testimony. However, improvement is not alone sufficient. “[T]he key question is ... whether the severity of the problem had decreased sufficiently to enable him to engage in gainful activity.” Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). Similarly, effective treatment is a proper consideration in evaluating symptoms. Garrison v. Colvin, 759 F.3d 995, 1017-18 (9th Cir. 2014); 20 C.F.R. § 404.1529(c)(3)(iv), (v) and (vi). However, as with other forms of improvement, temporary relief does not automatically establish non-disability. It is the degree and duration of improvement from the treatment that is relevant to establishing an RFC.
Even so, Plaintiff argues that the ALJ failed to identify sustained improvement, and instead erred by dismissing recognized instances in the record that supported the symptoms testimony, while relying on other portions of the same records without reconciliation, or while relying on outdated records. (Op. Br. at 17-18.) Indeed, an ALJ does not rely on substantial evidence where he cherry-picks supportive statements that belie the plain import of the medical record. See Garrison v. Colvin, 759 F.3d 995, 1018 n. 23 (9th Cir. 2014) (quoting Scott v. Astrue, 647 F.3d 734, 739-40 (7th Cir.2011); and Attmore v. Colvin, 827 F.3d 872, 877 (9th Cir. 2016). However, with the exception of Plaintiff's migraines (discussed hereinafter), the undersigned finds no place where the ALJ identifies improvement as the basis for rejecting Plaintiff's symptoms testimony. Otherwise, the ALJ made only limited references to improvement, and in each instance noted that it was not sustained.
For example, with regard to her spinal/musculoskeletal complaints, the ALJ noted: the ALJ reported “waxing and waning of.. .symptoms (as well as additional complaints of arthritic left knee pain) secondary to treatment modalities or otherwise,” but went on to note that epidural steroids had provided only “40% pain relief on a transient basis”; reports by Dr. Manganelli of stability from August 2020 to January 2021, but also noted a recent “flaring of her pain symptoms” (AR 34); Plaintiff's knee surgery in November, 2019, but went on to observe that she continued to suffer left leg pain (AR 33-34); with regard to her mental impairments, Plaintiff had been treated with medications, but that her reports of mood disruption, anxiety and remote memory disruption remained (AR 31).
Plaintiff argues the ALJ failed to explain, and was not qualified to explain, how the negative findings identified by the ALJ impugned the symptoms testimony. (Doc. 21 at 19.) Except as otherwise described herein, the undersigned finds that the ALJ's reasons are adequately explained and his conclusions are supported by substantial evidence when viewing the record as a whole.
Moreover, Plaintiff's argument that the ALJ was unqualified to interpret negative findings so as to rely on them to reject the symptoms testimony fails to recognize the proper role of the ALJ. It is true the ALJ cannot make his own independent medical findings, Banks v. Barnhart, 434 F.Supp.2d 800, 805 (C.D. Cal. 2006), or reject all the medical opinions and render wholesale a new medical opinion based on raw medical data, Tackett v. Apfel, 180 F.3d 1094, 1102 (9th Cir. 1999). However, “[i]t is clear that it is the responsibility of the ALJ, not the claimant's physician, to determine residual functional capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). And, that determination is made “based on all of the relevant medical and other evidence.” 20 C.F.R. § 404.1545(a)(3). Indeed, even where there are medical opinions, an ALJ is required to “evaluate the[ir] persuasiveness,” 20 C.F.R. § 404.1520c(a), including by comparison with “the objective medical evidence,” 20 C.F.R. § 404.1520c(c)(1) and (2).
Thus, an ALJ can properly look to the medical evidence, and make interpretations thereof, when determining a claimant's RFC. See Nichols v. Comm'r of Soc. Sec. Admin., CV-20-08307-PCT-DLR, 2022 WL 909435, at *4 (D. Ariz. Mar. 29, 2022) (“ALJ was not playing doctor,” because the ALJ “was not interpreting raw medical data but was guided by physician notes supporting the exertional limitations the ALJ assessed”). Similarly here, the ALJ was not interpreting raw medical data, but the notes of the providers, and other factors (e.g. activities of daily living, etc.) in coming to his RFC.
e. Migraines
With regard to her migraines, Plaintiff did not identify them as a primary cause of disability. When prompted by questioning from the ALJ, Plaintiff reported that she had completed a free, three-month trial of injections which reduced her migraines from 4 to 5 times per week and 1-2 hours, to 1 to 2 times per week of 30 minutes or less, and resolved with darkness. (AR 53-55.) She reported a current frequency of 2 times per week of 1 hour duration, requiring her to lay down with a cold wet towel over her face and shield from the light. (AR 54, 55.) She reported that the trial injections had ended three months previously and she had no upcoming appointment, asserting she was “trying to get in touch with them” but that she had not “got through to them yet.” (AR 53, 55.)
Plaintiff fails to show that the ALJ rejected this testimony.
In addition, Plaintiff alleged in her Function report that her inability to work stemmed in part from “chronic headache and the light or sun I be sensitive too and sometimes have blurred vision.” (AR 388.) Plaintiff fails to show that the ALJ rejected these allegations.
To be sure, the ALJ concluded that the migraines were not of a frequent and disabling nature. The ALJ reasoned:
The evidence also documents the claimant's intermittent complaints of migraine headaches. However, her descriptions of the frequency, intensity, and duration of his migraine episodes has varied over time. Additionally, there is evidence of adequate symptom control secondary to treatment modalities, and inconsistencies between the claimant's migraine allegations and her reported activities. For example, at a medical evaluation in late September of 2019, the claimant complained of an increase in intensity and frequency of her migraines. She was provided with Toradol and Decadron injections, and prescribed Imitrex as needed for acute relief (Ex. D7F/18- 21). In January of 2020, the claimant complained of migraines at a frequency of “about 4” episodes per week (Ex. D7F/9). However, in later May of 2020, the claimant reported “significant improvement in her headaches” from Emgality injections, such that they were “about 6070% better” (Ex. D13F/8). At a pulmonary evaluation in February of 2021, the claimant's examining physician noted that she “denies chronic headaches” (Ex. D16F/12). Moreover, the claimant has variously reported helping her son bathe, preparing simple meals (including for her son), helping her son with homework, shopping “by computer” as well as in stores, watching television “every day,” interacting with others (including on Facebook), and driving a vehicle (Ex. D5E). Those activities have required varying but significant degrees of sustained attention and concentration, and are inconsistent with any allegations of frequent and disabling migraines. The claimant's migraines further support the above-listed residual functional capacity, but they do not support a finding of disability.(AR 34.) But Plaintiff fails to show how those conclusions were inconsistent with the limited testimony and allegations by Plaintiff as to the nature of her migraines.
Plaintiff argues that the Vocational Expert testified that migraines at the Plaintiff's reported frequency at the time of the hearing still would create disability. (Doc. 21 at 20.) But the VE testified only that laying down during regular business hours is not allowed in the workplace, and that an employee requiring “an hour-long extra break two to four times in a workweek” would exceed the tolerances for employment. (AR 73.) However, the VE also testified that lesser absences were tolerable:
Q And, what do those jobs allow in terms of absences, off task tolerances and breaks?
A Off task, up to 15 percent of the workday, absences, 12 to 14 per year, no more than two per months. And, breaks, morning and afternoon break of approximately ten to 15 minutes, a 30-minute lunch break and a momentary bathroom break each hour.(AR 72.)
Moreover, the ALJ found “there is evidence of adequate symptom control secondary to treatment modalities.” (AR 34.) Specifically, the ALJ noted that Plaintiff improved with Emgality injections.
The ALJ also noted treatment of migraines with Toradol, Decadron and Imitrex. But the ALJ did not report any effectiveness from these medications. (AR 34.)
Plaintiff argues, she “could no longer access [Emgality] because of her medical insurance.” (Doc. 21 at 15.) But this is not reflected in Plaintiff's testimony, which only showed she was having to obtain insurance approvals, and had not followed up with her doctor in the three months since the last approval expired. Indeed, the record reflects that prior to September 30, 2019, Plaintiff's insurance had refused coverage for Emgality. (AR 944, 946.) But Dr. Muqtadar recorded in a July 11, 2019 note that Plaintiff had been provided a “saving card.” (AR 952.) Moreover, a note from Dr. Muqtadar on May 22, 2020 reflected “Her insurance denied new CRGP [sic] injections initially but approved 3 months injections,” and noted “We will apply for re-approval.” (AR 1139-40.) In a note from February 25, 2021, Dr. Muqtadar noted that a May 28, 2020 prescription for Emgality had been “Filled.” (AR 1173.) Plaintiff's Function Report from July 17, 2020 reported she was then currently taking “Emgality 120mg.” (AR 395.) And at the hearing on June 17, 2021, Plaintiff reported having just ended a “trial” of Emgality about three months before, and made no assertions that she would not again be approved, only that she had not been able to “get through” to her doctor's office. (AR 53, 55.) Thus, nothing in the record indicates that Plaintiff has not continued to have access to Emgality.
“Calcitonin gene-related peptide (CGRP) inhibitors block the effect of CGRP, which is a small protein that is highly prevalent in the sensory nerves that supply the head and the neck. CGRP is involved in pain transmission and levels increase during a migraine attack. It may also play a causative role in the induction of migraine attacks. CGRP inhibitors are used for the management of migraine.” Fookes, C., What are CGRP Inhibitors?, available at https://www.drugs.com/drug-class/cgrp-inhibitors.html, last accessed 1/9/22 (noting approval of “Emgality (galcanezumab-gnlm)” as a CGRP inhibitor).
Thus, although Plaintiff's reported untreated frequency at the time of the hearing might exceed the VE's limitations, Plaintiff proffers nothing to show that her reported, treated symptoms of 1 to 2 times per week of 30 minutes or less, and resolved with simply being in darkness (AR 54-55), would exceed them, or that she was unable to obtain such treatment.
f. Mental Health
(1). Testimony Not Rejected
The ALJ summarized Plaintiff's testimony with regard to her mental health:
The claimant testified that she experiences depression and mood swings, and added that she will “zone out” talking with people such that others must repeat things to her. Regardless, she reported that she watches television. When asked by her representative whether she has “any issues” following television shows, the claimant replied that she will watch a show but fall asleep after approximately 45 minutes secondary to being tired. She separately testified that she speaks with a couple of family members now and then. The claimant further testified that she her last social outing involved getting together with her grandmother and aunt on Mother's Day. When asked by her representative whether any illness interfered with her ability to enjoy that activity, the claimant replied, “I think I was ok” (Hearing Testimony).(AR 30.) The undersigned finds that this fairly represents Plaintiff's testimony, with the exception that Plaintiff also testified that her “zoning out” was a result of her anxiety, which she described as racing thoughts, and that her irritability makes her have to walk away from conversations, which transpires roughly two times per week. (AR 63, 62.)
At Step Four, the ALJ did not accept Plaintiff's “allegations of disabling symptoms and limitations due to her psychological impairments.” (AR 30 (emphasis added).) However, the ALJ did not explicitly reject any of Plaintiff's testimony. Nor, does the undersigned find that the ALJ implicitly rejected such testimony. Indeed, the ALJ appears to have amply accommodated the limited symptoms to which Plaintiff testified by including restrictions on Plaintiff's exposure to dangerous conditions or equipment, changes in the workplace, complex judgments, multi-tasking, self-direction, high or varied pace, direct public service, extended or significant interactions, and crowded or hectic environments, etc. (AR 27-28.)
(2). Other Statements Not Rejected
In her Function Report, Plaintiff made additional statements regarding her mental impairments.
In responding to an inquiry as to how well she follows written instructions, she annotated, “I do not know.” Regardless, the claimant reported that she follows spoken instructions “well.” She also indicated that she is able to pay bills and count change, and reported shopping “by computer” as well as in stores (Ex. D5E).” * * *
In her Function Report, the claimant indicated that she has no problems getting along with family, friends, neighbors, or others. She narratively added that she stays to herself a lot because she does not like to be judged by people. The claimant reported that she gets along “well” with authority figures, and denied any history of being fired or laid off due to problems getting along with others. She reported shopping in stores and spending time with others, including in talking with her family “or friend” on Facebook and sometimes on the phone (Ex. D5E) * * *
The claimant asserted in her Function Report that her abilities to concentrate and complete tasks are affected by her impairments. She also alleged that she is not too good at handling stress. In replying to an inquiry as to how long she can pay attention, the claimant annotated, “I do not know.” In short, she was minimally responsive. Regardless, the claimant indicated that she is able to pay bills and count change. She also reported shopping “by computer” as well as
in stores, preparing simple meals, spending time communicating with others on Facebook, and driving a vehicle (Ex. D5E).
* * *
In her Function Report, the claimant asserted that she is not good at handling routine changes. The claimant indicated that she has no problems with personal care activities. She asserted that she needs reminders to take medicine as she “sometimes” forgets to do so, but added that she does not need reminders to take care of personal needs and grooming. The claimant reported engaging in various activities involving preparing simple meals for herself and her son, shopping “by computer” as well as in stores, washing her son's clothes, driving a vehicle, and helping her son bathe, helping her son with his homework (Ex. D5E).
(AR 25-26.) The undersigned finds that this fairly represents Plaintiff's statements in her Function Report.
The ALJ rejected none of these statements. At Step Four of the analysis, the ALJ incorporated by reference earlier discussions of mental limitations. (AR 29-30 (“as previously detailed).) At Step Three (Listings) of the sequential disability evaluation process, the ALJ detailed Plaintiff's statements and did not reject them. To the contrary, the ALJ relied upon them (along with Plaintiff's comportment at the hearing and various records) and found “no more than moderate limitations” in “understanding, remembering, or applying information,” “interacting with others,” “concentrating, persisting, or maintaining pace,” and “ability to adapt or manage herself.” (AR 25-26.)
Moreover, those limitations were reflected in the RFC adopted at Step Four (RFC), where the ALJ further explained his mental RFC, and did so without rejecting any of Plaintiff's testimony, statements, or allegations. (AR 30-31.) It is true that the ALJ opened his discussion of mental impairments with the statement: “Mental status examination findings do not support the claimant's allegations of disabling symptoms and limitations due to her psychological impairments.” (AR 30.) But read in context, this was not a rejection of any specific statements or allegations by Plaintiff about her symptoms, but rather a rejection of her claim that she was disabled. But an ALJ has no obligation to accept testimony or statements of disability, only symptoms.
Thus, Plaintiff fails to show any rejection of her testimony, statements, or allegations regarding her mental health symptoms.
g. Spinal/Musculoskeletal Impairments
The ALJ summarized Plaintiff's testimony on her spinal/musculoskeletal symptoms as follows:
During the hearing, the claimant testified that she has experienced low back pain, radicular lower extremity pain, and left knee pain. She stated that she can stand for no more than 30 minutes before needing to sit due to lower back and leg pain. When asked whether she uses any assistive device, such as a cane or walker, the claimant replied that she is too embarrassed to do so. The claimant also testified that she walks with a limp, and added that she can walk for one-half block before needing to stop. She additionally testified that she was previously able to sit for approximately 30 minutes at a time, but added that lately, with “damaged nerves” in her left leg, she can sit for only 10 minutes before her knee “starts acting up real bad.” The claimant testified that she reclines herself and elevates her legs for a duration of approximately one hour, once per day. She added that after doing so, she lies down on her side and just relaxes.(AR 30.) The undersigned finds this fairly reflects Plaintiff's testimony on these symptoms.
The ALJ rejected this testimony, concluding that Plaintiff had “no limitations in her ability to sit, stand or walk through an 8 hour workday,” that she could “occasionally stoop, kneel, balance.. .crouch, and crawl, but can never climb ladders, ropes or scaffolds.” (AR 27.)
As reasons for this conclusion, the ALJ pointed to: (a) evidence in the record that showed minor physical abnormalities on imaging; (b) limited treatment; (c) inconsistent reports of symptoms on examination (AR 31-35); (d) activities of daily living; (e) limited treatment; (f) self-treatment; and (g) negative findings on examination.
With regard to imaging of Plaintiff's spinal issues, the ALJ pointed to: (a) a December 2016 CT study showing minimal cervical spondylosis; (b) a March 2017 MRI showing mild disc bulging; (c) a February 2017 MRI showing a mild lumbar disc protrusion; (d) an October 2018 MRI showing stable and mild spondylitic changes, mild to moderate sacroiliac joint arthritis, bilateral subarticular recess stenosis with no moderate or severe central canal or neuroforaminal stenosis, and secondary osteophyte formation, with only possible impingement. (AR 31-32.) With regard to Plaintiff's left leg, the ALJ pointed to: (a) March 2020 imaging showing only “mild” left hip arthritis; (b) March 2017 and April 2018 bilateral knee x-rays showing only mild space narrowing; (c) an October, 2019 left knee MRI showing only mild narrowing and impingement and no other changes (AR 32); (d) a comparable November 2019 MRI (AR 33); and (e) May, 2021 left knee x-rays again showing mild narrowing (AR 32).
(1). Reliance on Pre-Onset Records
Plaintiff argues the ALJ erred in rejecting her spinal/musculoskeletal complaints by relying on records predating her onset date of September 2019, including an October 2018 lumbar MRI, and May and September 2017 records regarding lower extremity radiculopathy. (Doc. 21 at 18 (citing AR 32).)
Plaintiff also referenced the ALJ's citing of November 2019 imaging. But that is after Plaintiff's alleged onset date of September 2019.
Indeed, the ALJ did cite to these and other earlier records and their earlier findings.
Regarding spinal imaging, the ALJ observed:
In terms of spinal conditions, a cervical CT study in December of 2016 indicated “minimal” cervical spondylosis at ¶ 4-5 and C5-6 (Ex. D7F/125). A cervical MRI study in February of 2017 depicted “mild” disc bulging at ¶ 2-3, C4-5 and C5-6 (Ex. D7F/70). A lumbar MRI in February of 2017 indicated a mild left paracentral disc protrusion, unchanged from a prior study in 2016 (Ex. D7F/70). A lumbar MRI in early October of 2018 indicated “stable” and “mild” spondylitic changes and mild to moderate sacroiliac joint arthritis, as well as bilateral subarticular recess stenosis at ¶ 4-5 and L5-S1 with no moderate or severe central canal or neuroforaminal stenosis. That study was further interpreted as depicting an osteophyte formation at ¶ 5-S1 “secondary to L5 sacralization “impinging on” the exiting left L5 nerve root” (see, e.g., Ex. D7F/111-112).(AR 31-32.) Nonetheless, the ALJ went on to discuss subsequent imaging within the disability period:
A lumbar MRI obtained in early November of 2019 (and compared to the above-described study in early October of 2018) depicted spondylotic changes primarily at ¶ 4-5, “similar to the prior study,” as well as L5 sacralization with osteophyte formation at ¶ 5-S1. The interpreting radiologist relatedly remarked (in provisional, i.e., rule-out fashion) that this osteophyte formation “possibly abuts or even slightly flattens or impinges upon the left exiting L5 nerve root” (emphasis added) (Ex. D7F/105-106). Electrodiagnostic lower extremity testing in February of 2020 depicted evidence of chronic axonal injury to the left L5-S1 nerve roots (see, e.g., Ex. D7F/6; Ex. D16F/19).(AR 32 (emphasis in original).) Moreover, the ALJ went on to explain why these more recent records did not alter his conclusions:
For example, Dr. Schnute and Dr. Dow variously cited electrodiagnostic testing indicating chronic axonal injury at ¶ 5-S1,
while also noting observations of normal motor tone, bulk, and strength (Id.). That evidence partially supports their administrative findings. Otherwise, while the claimant's spinal imaging studies depicted some degenerative abnormalities, primarily in the lumbar spine, no actual spinal cord or nerve root/cauda equina compression (or substantial central canal or neuroforaminal stenosis) was persuasively indicated in any study as previously detailed (see, e.g., Ex. D7F/70, 105-106, 111- 112, 125). Instead, in describing the most significant abnormal spinal condition, consistent of sacralization at ¶ 5 and osteophyte formation at ¶ 5-S1, an interpreting radiologist remarked in provisional (i.e., rule-out) fashion that this condition “possibly abuts or even slightly flattens or impinges upon the left exiting L5 nerve root” (emphasis added) (Ex. D7F/105-106).(AR 36.)
Regarding the left leg radiculopathy, the ALJ also addressed the pre-onset record. (AR 32-33.) Again, however, the ALJ went on to discuss post-onset records, in September 2019, noting the findings the ALJ found to be inconsistent with Plaintiff's statements of disabling impairment:
Thereafter during a neurology evaluation in late September of 2019 (shortly after the alleged onset date), the claimant exhibited a supple neck, normal neck range of motion, normal motor tone and bulk, and full motor strength of 5/5 “in all muscle groups.” Moreover, she had symmetric reflexes, intact coordination, and “normal casual gait” (Ex. D7F/19-21).(AR 33.) The ALJ continued to discuss the “evidence after January of 2020,” including records from March 2020, July 2020, January 2021, and May 2021, at each turn noting the inconsistent findings. (AR 33-34.)
Plaintiff fails to show that the ALJ improperly relied on pre-onset records to the exclusion of or without reconciling them with the more current records.
The Commissioner suggests that this discussion amounted to the ALJ making a finding of no changed circumstances from the prior determinations of non-disability. (Doc. 25 at 11-12 (citing AR 32).) However, the undersigned nowhere that the ALJ made that assertion, nor did the ALJ identify administrative res judicata as a basis for the decisions reached. See Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988) (discussing application of administrative res judicata in disability cases).
Moreover, as argued by the Commissioner (Ans.Br. at 11-12), the ALJ also properly cited the lack of changed circumstances between these records and relied on them to rely on the earlier non-disability determinations.
(2). Activities of Daily Living
With regard to spinal/musculoskeletal impairments, the ALJ referenced Plaintiff's activities of daily living at Step Four (RFC):
The ALJ also discussed ADLs with regard to Plaintiff's migraines or chronic headaches (AR 34) and mental impairments (AR 25-26, 35). However, as discussed hereinafter, Plaintiff has not shown the ALJ rejected Plaintiff's limited testimony and allegations on these conditions.
Moreover, in her Function Report, the claimant acknowledged engaging in various activities involving preparing simple meals for herself and her son, shopping “by computer” as well as in stores, washing her son's clothes, driving a vehicle, and helping her son bathe (Ex. D5E). During the hearing, the claimant testified that she still drives, while adding that she has no problem in doing so for up to 30 minutes. Regardless, driving requires significant sitting, reaching, handling, and use of foot controls, in addition to substantial and sustained attention and concentration. These overall descriptions of the claimant's activities and abilities are less consistent with her allegations of complete disability due to physical impairments, more consistent with the above-described administrative medical findings, and most consistent with the above-listed residual functional capacity.(AR 36-37).
Plaintiff argues the ALJ erred by failing to show activities of daily living (ADLs) translated into a work capable persistence and pace. “If a claimant is able to spend a substantial part of his day engaged in pursuits involving the performance of physical functions that are transferable to a work setting, a specific finding as to this fact may be sufficient to discredit a claimant's allegations.” Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (emphasis added). Transferability of ADLs is the keystone.
Recognizing that “disability claimants should not be penalized for attempting to lead normal lives in the face of their limitations,” we have held that “[o]nly if [her] level of activity were inconsistent with [a claimant's] claimed limitations would these activities have any bearing on [her] credibility.” Reddick v. Chater, 157 F.3d at 722 (citations omitted); see also Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir.2012) (“The critical differences between activities of daily living and activities in a full-time job are that a person has more flexibility in scheduling the former than the latter, can get help from other persons ..., and is not held to a minimum standard of performance, as she would be by an employer. The failure to recognize these differences is a recurrent, and deplorable, feature of
opinions by administrative law judges in social security disability cases.” (citations omitted)).Garrison, 759 F.3d at 1016. Ordinarily then, an ALJ is required to explain how the activities of daily living demonstrate the ability to perform in the work setting.
Where the claimant makes assertions that are inconsistent with any ability to engage in a particular function (even on a limited basis), then a showing of any level of capacity may be sufficient to reject the symptoms testimony.
Here, Plaintiff did not assert that she was wholly incapable of sitting, standing or walking, only that she was limited in her ability to engage in these activities for extended periods. The ALJ offered nothing to explain how the limited ADLs referenced were inconsistent with Plaintiff's statements of limited physical activity, must less how they translated into having “no limitations in her ability to sit, stand or walk throughout an 8 hour workday.” (AR 27.) For example, the ALJ noted that Plaintiff's driving was limited to 30 minutes, but did not explain how such a limitation translated into an employable level of activity. (AR 37.) The Commissioner does not address this failure, addressing instead only Plaintiff's claims of headaches and mental impairments. (Doc. 25 at 14.)
The ALJ erred in relying on Plaintiff's ADLs to reject her spinal/musculoskeletal symptoms testimony.
(3). Limited Treatment
The Commissioner argues that the ALJ properly relied on Plaintiff's limited approach to treatment of her spinal/musculoskeletal issues, referencing discussions of failure to pursue a functional capacity assessment while asserting disability and failure to complete a prescribed home exercise program. (Doc. 25 at 13 (citing AR 33).) Plaintiff does not reply.
The ALJ related Plaintiff's discussion with her pain management provider of her intent to pursue permanent disability, and that the physician “ordered up a functional capacity assessment,” but Plaintiff never got the assessment done. (AR 33.) The ALJ also related an orthopedic provider's notation that Plaintiff “has not been diligent in performing a home exercise program.” (AR 33-34.)
“[A]n unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment” can be a clear and convincing reason to reject symptoms testimony.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Plaintiff offers no explanation or reason for her failure to pursue the functional capacity assessment or follow the prescribed exercise program, nor why they were not clear and convincing reasons to reject her symptoms testimony.
(4). Self-Treatment
Plaintiff argues that the ALJ erred by relying on Plaintiff's use of an unprescribed action (elevating her leg) to obtain pain relief. (Doc. 21 at 21-22.) The ALJ opined:
In addition to the inconsistency between the totality of the medical evidence and the claimant's allegations of disabling symptoms and limitations secondary to her impairments, other factors do not support the claimant's allegations. During the hearing, the claimant testified that she elevates her legs (using a pillow under her legs and feet) once per day for a duration of approximately one hour while in a reclined position. She added that after engaging in that activity, she will lie down on her side and relax. However, while the claimant was counseled to elevate her left leg at a medical evaluation on November 25, 2019 (5 days after her left knee arthroscopy and partial medial meniscectomy), there is no other reference to leg elevation (either as a recommended treatment modality or as self-reporting of her own activity to alleviate symptoms) in any of her subsequent longitudinal medical records. These inconsistencies undermine the persuasiveness of the claimant's impairment allegations.(AR 35 (emphasis added).)
In response, the Commissioner argues:
A failure to report allegedly chronic issues to treatment providers can undermine those complaints. Greger v. Barnhart, 464 F.3d 968, 97273 (9th Cir. 2006). The ALJ reasonably found that Plaintiff's improvement around her alleged onset date contradicted her testimony that appeared to be specific to that brief period. Tr. 33, 35.(Doc. 25 at 13.)
Plaintiff does not reply.
The undersigned finds that the ALJ explicitly relied on both the performance of the self-help treatment, and the failure to report it.
The Commissioner fails to explain how the mere fact of self-help treatment is a clear and convincing reason to reject symptoms testimony. For example, the Commissioner does not suggest that Plaintiff had been advised against such activity, or that there was evidence it was ineffective. Such self-help is by itself indicative (rather than contraindicatory) of unresolved symptoms. Engaging in the unprescribed leg elevating activity was not a clear and convincing reason to reject Plaintiff's symptoms testimony.
On the other hand, failing to report such activity and its salutary effects is incongruent with Plaintiff's claims of disabling pain. A patient who finds a means for self-relief (particularly one that is illicit) would reasonably be expected to report that to a physician providing her care for such pain.
Consequently, the undersigned concludes that the ALJ erred as to the leg elevating only as to the engagement in the activity.
(5). Negative Findings on Examination
A significant part of the ALJ's discussion on Plaintiff's spinal/musculoskeletal conditions focused on pointing to various negative, or normal findings. For example, the ALJ pointed to:
a. May and September 2017 exams with negative straight leg raise test results (AR 32);
b. regular reports of “normal or adequate ranges of motion, full or largely full motor strength, intact or largely intact sensation, normal deep tendon reflexes, no focal neurologic deficits, normal or only mildly antalgic gait, and the ability to ambulate without difficulty” (AR 33);
c. in July 2019, despite demonstrations of power loss and pain, only an equivocal straight leg test, and “no focal motor or sensory deficits in her right lower extremity” (AR 33);
d. in September 2019, a supple neck, normal neck range of motion, motor tone,
bulk and strength, symmetric reflexes, intact coordination and normal casual gait (AR 33);
e. in October, 2019 no lateral joint line tenderness, and intact cruciate and collateral ligaments (AR 33);
f. on January 16, 2020, normal movement of all extremities, no tenderness upon musculoskeletal examination, and normal motor strength and tone (AR 33);
g. on January 24, 2020 a mildly antalgic gait, “some give way weakness in all muscle groups” (AR 33);
h. in March 2020 and August 2020, mildly antalgic gait and some mild strength loss (AR 33-34);
i. in September 2020 normal strength and extremity movements, intact sensation, no tenderness, and normal gait, and ambulating without difficulty (AR 34);
j. in January 2021 a mildly antalgic gait, very mild strength loss (AR 34);
k. in May 2021, mild medial joint line tenderness and patella facet tenderness, and full motor strength (AR 34).
However, the ALJ never explained why any of these purportedly negative or normal findings were inconsistent with the symptoms described by Plaintiff. It may be that there are sound reasons (medical or otherwise) known to the ALJ why that is the case. But without explanation by the ALJ, this court is left to inventing those reasons. See Lopez v. Colvin, 194 F.Supp.3d 903, 915 (D. Ariz. 2016) (finding no reason to discount medical opinion of knee and spinal issues, based on normal musculoskeletal exam without explanation why it was inconsistent).
Although, there are indications of some “normal” findings in these notes, there is no indication that these findings change Plaintiff's underlying abilities. Further, many of the records also indicate abnormal findings. While the ALJ has set out a summary of the facts and evidence, she failed to state her interpretation of the evidence and make findings.” Curtis v. Comm'r of Soc. Sec. Admin., No. CV-18-00649-PHX-DGC, 2018 WL 6418486, at *5 (D. Ariz. Dec. 6, 2018).
4. Harmlessness
The undersigned has concluded that in rejecting Plaintiff's symptoms testimony on her spinal/musculoskeletal impairments when the ALJ relied on reasons (i.e. Plaintiff's performing self-help treatment, her activities of daily living, and negative or normal exam findings) that fail to meet the standard of specific, clear and convincing reasons supported by substantial evidence to reject symptoms testimony.
However, harmless error principles apply in the Social Security context. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). “A decision of the ALJ will not be reversed for errors that are harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). An error is harmless if there remains substantial evidence supporting the ALJ's decision and the error does not affect the ultimate nondisability determination. Molina, 674 F.3d at 1115. Harmlessness does not require the court to determine what ultimate decisions the ALJ would have made if the error had not been committed, but only to ask whether the remaining bases for the decision are sufficient to support the decision. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008).
Here, the remaining reasons offered by the ALJ (e.g. imaging showing limited impairment, limited treatment, failure to report self-treatment, etc.) were clear and convincing reasons for rejecting her testimony on these impairments, and were supported by substantial evidence.
Accordingly, any error was harmless and does not justify a reversal.
D. SUPPORT FOR RFC
Plaintiff further argues that the ALJ failed to support the RFC determination with reasons based on substantial evidence. Plaintiff asserts the ALJ simply summarized the medical evidence, without providing reasons or building a logical bridge between the findings and the conclusions. (Doc. 21 at 23-25.) The Commissioner argues the ALJ's RFC was properly founded on the ALJ's partial acceptance of the medical and psychological opinions (which were moderated in Plaintiff's favor) and the medical evidence, and adequately linked the evidence to his RFC. (Doc. 25 at 17-22.) Plaintiff replies that the ALJ did not explain why he relied on the opinions, and simply moderating opinions does not avoid the requirement for explanations.
In determining an RFC, an ALJ must “set forth a logical explanation of the effects of the symptoms, including pain, on the individual's ability to work.” Titles II & XVI: Assessing Residual Functional Capacity in Initial Claims, SSR 96-8P (S.S.A. July 2, 1996). It is not sufficient for the ALJ to undertake a summary of the evidence, and then state a conclusion without providing the reasoning bridging the two. Neither the Commissioner nor the Court can invent that bridge for the ALJ, Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015), nor is speculation on it sufficient, Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991). However, the court is “not deprived of [its] faculties for drawing specific and legitimate inferences from the ALJ's opinion.” Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989). “Even when an agency explains its decision with less than ideal clarity, we must uphold it if the agency's path may reasonably be discerned.” Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) (citations and quotations omitted).
It is true that the ALJ did not undertake a restriction-by-restriction explanation for the RFC. However, with several notable exceptions, the ALJ left a reasonably discernible path from his review of the evidence to his conclusions on the RFC.
The ALJ first acknowledged that the RFC was not an adoption of a medical opinion, nor in the form of traditional terms, but the ALJ carefully explained the meaning and application of his RFC. (AR 27-29.) The ALJ then addressed the Two-Step process for evaluating symptoms testimony, summarized the symptoms testimony, found the symptoms could flow from her medically determinable ailments. (AR 29-30.) The ALJ then set about evaluating Plaintiff's symptoms testimony and statements in light of the record, and (albeit not without errors along the way) found them at least partially not credible.
The ALJ summarized the findings and opinions of the state agency psychologists, explained he found them generally persuasive, and adopted a mental RFC which essentially mirrored theirs. (AR 35.) (Compare AR 28 (ALJ's mental RFC) with AR 208 (D5A/13) (Atkins Mental RFC) and AR 232 (D7A/21) (Womontree Mental RFC).) The ALJ summarized Plaintiff's reported activities of daily living, and reasoned they were inconsistent with complete disability, but compatible with the adopted mental RFC. (AR 35.)
The ALJ summarized the opinions of the state agency physicians, but explained they were only partially persuasive, noting the positive and negative medical evidence, but nonetheless adopting a more restrictive physical RFC. (AR 36.) Here, however, the ALJ relied in part on an unexplained litany of findings, without offering any explanation of what or why they led to the musculoskeletal restrictions in the RFC.
But here, the Court is left to guessing at which findings were relied on to reject the physicians' opinions, and why they did so. For example, the ALJ references “normal or adequate ranges of motion, full or largely full motor strength, intact or largely intact sensation, normal deep tendon reflexes, no focal neurologic deficits, normal or only mildly antalgic gait, and the ability to ambulate without difficulty.” (AR 36.) But the ALJ fails to explain how these relate to Plaintiff's allegations of disabling pain. While observations of an antalgic gait appear related, the ALJ points to nothing to show that the observations were at a time that Plaintiff had exceeded her asserted threshold of walking capability, nor does it explain the more restrictive RFC. As another example, the ALJ references a provisional diagnosis of nerve impingement as the most significant finding with regard to the spinal condition (id.), but offers no explanation how that led the ALJ to offer a more restrictive analysis than that of the physicians.
However, as the Commissioner argues, any error in the evaluation of these opinions was harmless because the RFC adopted was more restrictive than that of these physicians. (See Ans. Br. at 22.) Plaintiff replies that the lack of reasoning prevents a harmlessness determination. (Doc. 26 at 9.) But the harm does not flow from the lack of reasoning (rather that is the source of the error), but from the reliance upon this unexplained shotgun of findings to “partially” reject these opinions. Because the rejected portion of the physicians' opinions was unfavorable to Plaintiff, no harm resulted to Plaintiff.
It is tempting to pivot and rely on this lack of reasoning to attack the ALJ's reliance at all on the physicians' opinions (focusing on the half empty, rather than the half full portion of the glass). But an ALJ is not required to offer reasons for giving weight to a physician's opinion (at least in the absence of conflicting medical opinions).
Medical opinions. The RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.SSR 96-8P, supra (emphasis added). Moreover, the ALJ did not rely solely upon the unexplained litany to partially adopt these opinions, but also relied upon these physicians having “reviewed a sizeable portion of the medical evidence, and each has a strong understanding of the Social Security Administration's disability programs and evidentiary requirements.”
Plaintiff argues, for the first time in her reply, that the ALJ erred by relying on the state agency physicians “who reviewed only part of the evidence and never treated nor examined Lang.” (Rep.Br. at 2.) Although Plaintiff cites pages 22-24 of her Opening Brief, nowhere in those pages does Plaintiff raise this claim. See Eberle v. City of Anaheim, 901 F.2d 814, 818 (9th Cir. 1990) (“It is well established in this circuit that the general rule is that appellants cannot raise a new issue for the first time in their reply briefs.”) (citation and internal quotation marks omitted); Figueroa v. Berryhill, 2018 WL 2176386, at *4 (C.D. Cal. May 10, 2018) (applying to social security appeal in district court). Moreover, Plaintiff offers nothing to show that unreviewed portions of the record were material, or any authority for the proposition that the opinions of reviewing providers cannot be afforded weight.
The ALJ further cited to Plaintiff's activities of daily living (AR 36-37) but, as with the symptoms testimony, did so without addressing the transferability of these actions. The ADLs related to musculoskeletal symptoms are addressed above in the discussion on symptoms testimony. (See supra Section C(3)(g)(2).) With regard to the migraines, the ALJ offered no explanation how the ability to engage in the various cited activities conflicted with the frequency of migraines asserted by Plaintiff. (AR 34) Plaintiff has not asserted that she continuously experienced migraines, nor even that they occurred on a daily basis. The Vocational Expert testified that work disruptions of only a small portion of the work week (one hour two to four times per week) would amount to unemployability. (AR 72.) Even at the level, at least 36 hours of a work week would be available for ADLs. Similarly, the ALJ referenced driving of evidence of “substantial and sustained attention and concentration”, but at the same time note her problem free driving was limited to “up to 30 minutes.” (AR 36.) The ALJ offered nothing to translate that capacity to a full work week.
Finally, the ALJ referenced a “ non-medical source ”, an agency interviewer who espoused various observations about Plaintiff's mental presentation, which the ALJ found “partially consistent,” “while acknowledging their inherent subjectivity and the lack of medically acceptable standards. (AR 37.)
Thus, in determining the RFC and thus ultimately finding no disability, the ALJ expressed reasons which were properly relied upon, including: (1) his rejection of portions of Plaintiff' symptoms testimony; (2) the opinions of the state agency psychologists; (3) the opinions of the state agency physicians; and (4) a nonmedical source. Thus Plaintiff fails to show an absence of reasons supported by substantial evidence.
To the extent some of the reasons were wholly or partially erroneous (e.g. the reliance on activities of daily living), the balance of the reasons renders such error harmless.
E. RECOMMENDATIONS
IT IS THEREFORE RECOMMENDED:
(A) The reference of this case to the undersigned be WITDHRAWN.
(B) The final decision of the Commissioner of Social Security be AFFIRMED.
(C) The Clerk be directed to enter judgment accordingly.
EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”