Opinion
CV-20-00532-TUC-SHR (MSA)
01-11-2022
Luz M Rogers, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable Maria S. Aguilera, United States Magistrate Judge.
Luz Rogers seeks judicial review of an unfavorable decision made by the Commissioner of Social Security Administration (Commissioner). The matter has been fully briefed. (Docs. 21, 22, 25.) For the following reasons, the Court will recommend that the Commissioner's decision be reversed, and that this matter be remanded to the agency for the calculation and award of benefits.
Background
I. Procedural History
In July 2018, Rogers filed an application for disability insurance benefits, alleging a disability onset date of June 16, 2018. (AR 162.) The application was denied initially in November 2018 and on reconsideration in March 2019. (AR 65, 80.) Rogers requested a hearing before an administrative law judge (ALJ), and a hearing was held in February 2020. (AR 36-64, 104.) At the hearing, Rogers amended her alleged disability onset date to February 23, 2019. (AR 40.) After the hearing, the ALJ issued a written decision denying Rogers's application. (AR 13-26.) The Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. (AR 1-3.) Plaintiff initiated this lawsuit in December 2020, seeking judicial review of the ALJ's decision. (Doc. 1.)
II. The ALJ's Decision
The ALJ followed the five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. § 404.1520. At step one, the ALJ found that Rogers had not engaged in substantial gainful activity since her amended disability onset date. (AR 16.) At step two, the ALJ found that Rogers had the following severe impairments: obesity, major depressive disorder, anxiety, posttraumatic stress disorder, insomnia with restless leg syndrome, obstructive sleep apnea, sleep disorder versus seizure disorder, asthma, and headaches. (AR 16.) At step three, the ALJ found that Rogers did not have an impairment or a combination of impairments that met or medically equaled the severity of a listed impairment. (AR 17.)
Between steps three and four, the ALJ found that Rogers had the residual functional capacity to perform medium work with the following limitations: She could lift and carry 50 pounds occasionally and 25 pounds frequently; she could, in an eight-hour workday, stand or walk for about six hours and sit for about six hours; she could not climb ladders, ropes, or scaffolds; she could occasionally climb stairs and ramps; she could frequently stoop, kneel, crouch, and crawl; she could perform only low-stress work; and she could understand, remember, and carry out simple, routine, and repetitive instructions and tasks. (AR 19.) At step four, the ALJ found that Rogers could not perform any of her past relevant work. (AR 24.) At step five, the ALJ found that Rogers could perform other work that existed in significant numbers in the national economy. (AR 25.) The ALJ therefore concluded that Rogers was not disabled. (AR 26.)
Legal Standard
The ALJ's decision must be affirmed if it is supported by substantial evidence and free of legal error. Lambert v. Saul, 980 F.3d 1266, 1270 (9th Cir. 2020) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)). “Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Coleman v. Saul, 979 F.3d 751, 755 (9th Cir. 2020) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). The ALJ's decision may not be overturned on account of an error that was “inconsequential to the ultimate nondisability determination.” Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (quoting Tommasetti, 533 F.3d at 1038).
Discussion
Rogers raises three challenges to the ALJ's decision. First, she argues that the ALJ erred in rejecting the medical opinion of an examining psychologist, Dr. George Goldman. Second, she argues that the ALJ erred in discounting her symptom testimony. Third, she argues that the ALJ erred in rejecting the lay-witness statements of her family members and friend. The Court finds that the first challenge is without merit but that the ALJ indeed erred in evaluating Rogers's symptom testimony and the lay-witness statements.
I. The ALJ did not err in rejecting Dr. Goldman's opinion.
In early 2020, Dr. Goldman examined Rogers twice to determine “whether [she] has a mental condition which has been in existence since at least June 16, 2018, and which has had an effect on her ability to perform [certain] work activities.” (AR 763.) Dr. Goldman performed a mental status examination, observing the following:
Ms. Rogers was dressed casually and appropriately for this examination. She was cooperative throughout our time together. Her speech was somewhat pressured and halting, and normal in tone and volume. Her affect was tearful and labile. Her mood was anxious and depressed. Her thought process was goal directed and logical. There was no indication of suicidal or homicidal ideation, and no indication of delusions or hallucinations. She was oriented to time, place, person and self. Her short-term and long-term memory was intact. She was attentive but disorganized in her presentation. Her judgement/insight was poor to fair. Her intelligence is judged to be in the average range.(AR 763.) After summarizing some of Rogers's medical records, Dr. Goldman recounted Rogers's statements about being sexually abused as a child and about losing her adult son in 2009. (AR 764.) Based on this information, Dr. Goldman opined that Rogers has posttraumatic stress disorder and “is incapable of even part time work.” (AR 764.)
As part of his opinion, Dr. Goldman filled out a form estimating the percentage of time that Rogers would be unable to perform certain activities during a normal, eight-hour workday. (AR 765-66.) Dr. Goldman opined that Rogers was totally or almost totally incapable of maintaining attention for two-hour segments (100%); maintaining regular attendance and punctuality (90%); following an ordinary routine without special supervision (80%); working with or near others without being distracted (90%); accepting instructions and responding appropriately to criticism (95%); getting along with others without being a distraction or exhibiting extreme behaviors (80%); dealing with normal work stress (95%); setting realistic goals or making plans (95%); and dealing with the stress of semiskilled or skilled work (100%). (AR 765-66.) Dr. Goldman further opined that Rogers would have considerable difficulty remembering work procedures (75%); understanding, remembering, and carrying out simple instructions (75%); making simple work-related decisions (70%); and performing at a consistent pace without an unreasonable number of breaks (75%). (AR 765.) In the space provided for Dr. Goldman to “[e]xplain the basis for [his] assessment[s], ” he stated that “Rogers has posttraumatic stress disorder which directly interferes with almost all aspects of her functioning.” (AR 765-66.)
Under the Social Security Administration's revised regulations, ALJs must analyze each medical opinion using several factors. 20 C.F.R. § 404.1520c(a)-(c). The most important factors are supportability and consistency. Id. § 404.1520c(b)(2). An opinion that is well supported by objective medical evidence and explanation is more persuasive, as is an opinion that is consistent with evidence from other medical and nonmedical sources. Id. § 404.1520c(c)(1)-(2). Additional factors include the medical source's specialization and relationship with the claimant. Id. § 404.1520c(c)(3)-(4). The opinion of a specialist as to issues within her area of specialty is more persuasive than the opinion of a non-specialist. Id. § 404.1520c(c)(4). In addition, the length, purpose, and extent of the treatment relationship may show that the medical source has a longitudinal understanding of the claimant's impairments, which may render that source's opinion more persuasive. Id. § 404.1520c(c)(3).
Here, the ALJ found that Dr. Goldman's conclusions were not supported by the “mostly benign” results of his mental status examination. (AR 22.) Substantial evidence supports this finding. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (stating that an ALJ may reject a medical opinion as inadequately supported by clinical findings); 20 C.F.R. § 404.1520c(c)(1) (stating that an opinion is more persuasive if it is supported by objective medical evidence). As the ALJ observed, Rogers was cooperative, attentive, and fully oriented; her “thought process was goal directed and logical”; her memory was intact; there was no indication of delusions, hallucinations, or suicidal or homicidal ideation; and she was judged to be of average intelligence. (AR 21, 763.) The ALJ could rationally conclude that these observations, which suggest normal mental functioning, provided no support for the extreme restrictions endorsed by Dr. Goldman.
Rogers disputes that the results of the mental status examination were “mostly benign, ” pointing out that she presented to Dr. Goldman with a “tearful and labile” affect, an “anxious and depressed mood, ” and “poor to fair” judgment and insight. (AR 763.) While favorable to Rogers, these negative factors do not overwhelm the evidence of normal functioning described above. The ALJ expressly considered all of Dr. Goldman's observations and reasonably found that, on balance, the results were “mostly benign.” (AR 21-22.) Rogers has not shown error merely by offering an alternative, more favorable interpretation of the evidence. See Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (stating that the ALJ's interpretation of the evidence, if rational, must be upheld).
Rogers also says that the ALJ improperly discounted Dr. Goldman's clinical observations as mere “subjective complaints.” See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (stating that observations made during a mental status examination “are objective measures [that] cannot be discounted as a ‘self-report”). However, the ALJ made no such error. The ALJ determined that the “mostly benign” examination results did not align with Dr. Goldman's opinion. The ALJ therefore concluded that, in formulating his opinion, Dr. Goldman “apparently ignor[ed]” the examination results and instead “put[] full reliance on [Rogers's] subjective complaints.” (AR 22.) This explanation shows that the ALJ properly distinguished between Dr. Goldman's clinical observations and Rogers's subjective complaints. The ALJ did not conflate them, as Rogers claims.
The ALJ also discounted Dr. Goldman's opinion based on an apparent inconsistency in his report. Substantial evidence supports this reasoning. See Bayliss, 427 F.3d at 1216 (stating that an ALJ may reject a medical opinion as internally inconsistent); 20 C.F.R. § 404.1520c(c)(5) (stating that an ALJ may “consider other factors that tend to support or contradict a medical opinion”). Dr. Goldman stated that he was addressing whether Rogers had “a mental condition which has been in existence since at least June 16, 2018, ” yet Rogers was employed at that time and continued to be employed until February 2019. (AR 39, 763.) To the extent that Dr. Goldman implied that Rogers's mental impairment and associated limitations (e.g., an inability to follow simple instructions) existed in June 2018, his opinion is arguably contradicted by Rogers's employment. The ALJ could reasonably rely on this apparent conflict to discount Dr. Goldman's opinion.
The ALJ also faulted Dr. Goldman for “vaguely support[ing] his extreme limitations by saying they are related to ‘PTSD' with no further explanation.” (AR 22-23.) Substantial evidence supports this reasoning. See Bayliss, 427 F.3d at 1216 (stating that an ALJ may reject an opinion as brief or conclusory); 20 C.F.R. § 404.1520c(c)(1) (stating that a medical opinion is more persuasive if supported by explanation). Dr. Goldman indeed endorsed extreme restrictions for Rogers (e.g., she cannot work with or near others, accept instructions or criticism, or set realistic goals). (AR 765-66.) Rather than supporting these restrictions with a mental-functioning analysis or with citation to objective findings or clinical observations, Dr. Goldman stated generically that posttraumatic stress disorder “directly interferes with almost all aspects of [Rogers's] functioning.” (AR 765.) The ALJ could rationally conclude that Dr. Goldman's brief, generalized statement provided little or no support for the numerous, specific restrictions set forth in his report. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (upholding the ALJ's rejection of a medical opinion that was “unsupported by rationale or treatment notes”).
The ALJ also found that Dr. Goldman's opinion was “inconsistent with the record as a whole.” (AR 23.) Rogers denies that the ALJ specifically identified any inconsistency, but the ALJ highlighted at least one that is supported by substantial evidence. See Thomas, 278 F.3d at 957 (stating that an opinion is more persuasive if it is consistent with other evidence in the record); 20 C.F.R. § 404.1520c(c)(2) (same). The ALJ explained that Dr. Goldman's observations (of mostly normal mental functioning) were consistent with the observations made by other medical sources. (AR 21.) Those observations, made on about 15 occasions between September 2018 and February 2020, were “consistently unremarkable.” (AR 21.) As the ALJ expressly found that Dr. Goldman's opinion was inconsistent with his own “mostly benign” findings, it follows that the ALJ implicitly found that the opinion was also inconsistent with the other sources' findings. See Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (stating that a reviewing court is “not deprived of [its] faculties for drawing specific and legitimate inferences from the ALJ's opinion”). This was a rational view of the evidence.
Finally, the ALJ relied on the fact that Dr. Goldman formed his opinion after meeting with Rogers only twice. (AR 23.) An ALJ may appropriately consider the length of a treatment relationship, as a longer relationship may indicate that the medical source has a better understanding of the claimant's impairments. 20 C.F.R. § 404.1520c(c)(3). Here, the ALJ properly considered, as part of her broader analysis, the fact that Dr. Goldman had minimal contact with Rogers.
Rogers argues that Dr. Goldman's opinion was entitled to greater weight simply because he is an examining physician. However, many courts in this district have interpreted the revised regulations as eliminating the treating-source rule, which required that deference be given to treating and examining medical sources. See, e.g., Garcia v. Comm'r of Soc. Sec. Admin., No. CV-20-08258-PCT, 2021 WL 5822642, at *2 (D. Ariz. Dec. 8, 2021). Regardless, the ALJ provided legally sufficient reasons for rejecting Dr. Goldman's opinion even if it was entitled to deference under the treating-source rule. See Bayliss, 427 F.3d at 1216 (stating that an ALJ may reject a medical opinion as brief, conclusory, inadequately supported by clinical findings, or internally inconsistent). Rogers also argues that the ALJ erred in discounting Dr. Goldman's opinion because he was retained “solely for [the] purpose of establishing disability.” (AR 23.) It is not clear that this was error, since the regulations provide that an ALJ may consider the “[p]urpose of the treatment relationship” as a factor in the analysis. 20 C.F.R. § 404.1520c(c)(3)(iii). In any event, such error would be harmless because the ALJ provided other reasons for rejecting the opinion.
In finding Dr. Goldman's opinion unpersuasive, the ALJ appropriately balanced multiple factors and offered persuasive reasons supporting her conclusion. The Court will recommend that Rogers's claim of error be rejected as without merit.
II. The ALJ erred in rejecting Rogers's symptom testimony.
During the administrative hearing, Rogers testified that she is persistently fatigued due to medication, depression, insomnia, and seizures that occur while she sleeps. (AR 46, 52, 54, 56-57.) She also testified that she has problems remembering and understanding instructions (such as recipes), that she has panic attacks, and that she has back pain when she sits for too long. (AR 50, 52, 54.) In an adult function report, Rogers further stated that she gets headaches, especially when people yell at her. (AR 241.)
When evaluating a claimant's testimony about her symptoms, the ALJ must first “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.” Smith v. Kijakazi, 14 F.4th 1108, 1111 (9th Cir. 2021) (quoting Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014)). “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.'” Ahearn v. Saul, 988 F.3d 1111, 1116 (9th Cir. 2021) (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). To satisfy this standard, “the ALJ must specifically identify the testimony she or he finds not to be credible and must explain what evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (citing Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)).
Here, as an initial matter, the ALJ badly understated Rogers's testimony about her fatigue, which is perhaps her most significant symptom. Rogers testified quite clearly that her fatigue is so severe that she naps in the morning before leaving her house, again during the day when the child she watches falls asleep, and again when she gets home in the evening. (AR 46, 56-57.) She also testified that while she can do household chores, her fatigue requires her to take breaks afterwards. (AR 50-51, 238.) In summarizing Rogers's testimony, however, the ALJ stated merely that Rogers “always feels tired and fatigued” and “take[s] naps in the evening” to manage this symptom. (AR 19-20.) This discrepancy amounts to a failure by the ALJ to “specifically identify” Rogers's fatigue testimony as not credible. This error precluded the ALJ from providing clear and convincing reasons for rejecting the testimony.
The ALJ found that Rogers's activity level was “inconsistent with debilitating symptoms.” (AR 21.) In particular, the ALJ observed that Rogers could care for a newborn baby four times per week, cook, clean, wash dishes, do laundry, care for pets, and attend church on Sundays. (AR 20.) Although “[e]ngaging in daily activities that are incompatible with the severity of symptoms alleged can support an adverse credibility determination, ” Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014), none of these activities are incompatible with Rogers's alleged symptoms. People who have depression, panic attacks, memory lapses, and headaches can do household chores, own pets, and attend church once per week. As for Rogers's fatigue, none of her activities require her to be awake for prolonged periods of time without having the ability to take breaks or naps. This includes providing childcare four times per week for six-hour periods, as she is able to take naps while the child sleeps. (AR 46.)
In listing Rogers's activities, the ALJ also stated that Rogers “car[ed] for her husband.” (AR 21-22.) The hearing testimony makes clear, though, that Rogers was referring to her cooking and cleaning, not to any caregiver responsibilities. (AR 47, 52.)
The ALJ identified Rogers's activities but did not explain how they conflict with Rogers's testimony. More importantly, there is no conflict. As such, the ALJ's reasoning is not supported by substantial evidence. See Diedrich v. Berryhill, 874 F.3d 634, 642-43 (9th Cir. 2017) (finding that the claimant's ability to bathe, cook, take care of a cat, complete household chores, shop, pay bills, and use a checkbook “d[id] not contradict the evidence of otherwise severe problems that she encountered in her daily life”); Trevizo v. Berryhill, 871 F.3d 664, 682 (9th Cir. 2017) (finding that the claimant's childcare activities did not contradict her symptom testimony because they “permit[ted] her to rest, take naps, and shower repeatedly throughout the day, all of which would be impossible at a traditional full-time job”).
An ALJ may also reject symptom testimony if the claimant's activities involve skills that could be transferred to a work environment. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). The ALJ did not invoke this justification, but it is worth noting that none of Rogers's activities clearly involve transferable work skills. “House chores, cooking simple meals, self-grooming, paying bills, writing checks, and caring for a cat in one's own home, as well as occasional shopping outside the home, are not similar to typical work responsibilities.” Diedrich, 874 F.3d at 643. As for Rogers's childcare activities, while the ALJ found that Rogers is “primarily responsible” for the child's care, there are no details about what her childcare activities entail. (AR 22.) Therefore, it cannot be inferred that the activities involve transferable work skills.
As a final matter on the issue of Rogers's daily activities, the ALJ observed that Rogers “continued to work, despite her alleged onset of seizures in 2018, until February 2019.” (AR 22.) Obviously, working despite one's symptoms could conflict with testimony that the symptoms are disabling. Here, though, the ALJ did not rely on this supposed conflict, as the ALJ made clear that Rogers's “level of activity even after she quit working . . . [was] inconsistent with debilitating symptoms.” (AR 21.)
Regardless, substantial evidence would not support rejecting Rogers's testimony on the basis that she continued to work. The evidence indicates that her symptoms, particularly her fatigue, became progressively worse until she left her job. In August 2018, for example, she reported “a lot of insomnia” and excessive fatigue, and, in January 2019, she reported having to miss work to sleep. (AR 401, 659.) The evidence also indicates that Rogers left work because of her fatigue, and that her fatigue worsened after she quit. (AR 512.) In May 2019, her provider noted that she had “increasingly disabling excessive daytime somnolence” (drowsiness), and that she was taking one or two naps every day. (AR 511- 12.) Treatment notes indicate that Rogers continued to nap regularly during the months that followed. (AR 590, 619, 746, 748.) This evidence suggests that Rogers's fatigue was worse in February 2020, at the time of her hearing, than it was in 2018, when she was working. Absent something more, then, the ALJ could not validly discount Rogers's hearing testimony based on her former employment. Cf. Smith, 14 F.4th at 1113 (holding that the ALJ erred by “disregarding all of [the claimant's] testimony, including the portion about his early-period incapacity, on the basis of inconsistencies only clearly applicable to the late-period testimony”).
The ALJ also found that parts of Rogers's testimony were not fully supported by the objective medical evidence. (AR 20.) As to those specific parts, substantial evidence supports the ALJ's finding. Regarding Rogers's complaints of physical pain, the ALJ observed that Rogers's examination results were “consistently unremarkable.” (AR 20.) The ALJ supported this observation with citation to medical reports stating that, between July 2018 and January 2020, Rogers was often seen with normal strength, range of motion, and gait and without acute distress or tenderness. (AR 20, 406-07, 434, 487, 514-15, 666, 684-85, 721.) With respect to Rogers's allegations that she suffers from seizures, the ALJ observed that the most recent imaging of Rogers's brain was unremarkable, and that two of her providers stated that she likely suffers from a sleep disorder rather than from a seizure disorder. (AR 20, 486, 511, 722, 739.)
As for Rogers's mental health, the ALJ observed that, in late 2019, Rogers consistently scored a 0 on the PHQ-2 questionnaire (which screens for depression) and GAD-7 questionnaire (which screens for anxiety), indicating that Rogers was not depressed or anxious during that period. (AR 21, 684, 687, 690.) The ALJ also observed that, even in mid-2018, Rogers's scores on the PHQ-2 questionnaire indicated only mild depression. (AR 21, 400, 405.) In addition, the ALJ found that Rogers's mental status examinations were “consistently unremarkable” between September 2018 and January 2020. (AR 21.)
As the ALJ noted, Rogers's providers consistently observed her as being fully oriented and as having an appropriate mood and affect, an intact memory, normal language function, and normal concentration. (AR 21, 434, 440, 445, 487, 514, 721, 740.)
Next, the ALJ appeared to discount Rogers's testimony about her depression and anxiety because she received only minimal mental-health treatment. (AR 21.) An ALJ may, in some circumstances, discount a claimant's testimony because of an “unexplained, or inadequately explained, failure to seek treatment.” Orn, 495 F.3d at 638 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). However, “it is a questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation.” Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (quoting Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir. 1989) (per curiam)). And the ALJ may not invoke this reasoning without first “considering possible reasons” for why the claimant did not “seek treatment consistent with the degree of his or her complaints.” SSR 16-3p, 2017 WL 5180304, at *9 (Oct. 25, 2017); see Orn, 495 F.3d at 638 (stating that a claimant's testimony may not be rejected based on a failure to seek treatment if she has “good reasons for not doing so” (quoting Fair, 885 F.2d at 603)). Here, the ALJ did not ask Rogers why she had not sought more mental-health treatment, and the ALJ's decision does not reflect that the ALJ considered any reasons that might have been mentioned elsewhere in the record. Therefore, substantial evidence does not support the ALJ's reasoning.
While the ALJ rationally concluded that the medical evidence did not fully corroborate parts of Rogers's symptom testimony, it is well-established that an ALJ may not reject symptom testimony solely on that ground. Coleman, 979 F.3d at 756 (citing Reddick, 157 F.3d at 722). Here, the ALJ provided no other valid reasons for discounting Rogers's testimony, so the ALJ's reasoning is not supported by substantial evidence. This error was harmful. The ALJ concluded that Rogers's daytime fatigue could be accommodated by limiting her to simple, routine, and repetitive tasks, and that her evening nap would not interfere with most work schedules. (AR 21.) However, the ALJ did not account for Rogers's alleged need to take naps in the morning, afternoon, and evening, which is incompatible with a traditional work schedule. See Trevizo, 871 F.3d at 682 (stating that the ability to rest and take naps throughout the day is “impossible at a traditional full-time job”). As such, taking Rogers's testimony as true, Rogers is incapable of performing the jobs identified by the ALJ at step five. The ALJ's error, therefore, was not “inconsequential to the ultimate nondisability determination.” Lambert, 980 F.3d at 1278 (quoting Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015)).
III. The ALJ erred in rejecting the lay-witness statements.
Rogers's application for benefits is supported by the affidavits of two family members and a friend. Rogers's husband attested to Rogers's depression, anxiety, insomnia, fatigue, body aches, and memory issues. (AR 297-99.) The second family member attested to Rogers's headaches. (AR 295.) Rogers's friend attested to Rogers's depression, fatigue, body aches, memory issues, and concentration issues. (AR 301-02.) The ALJ stated that she “reviewed and considered” these affidavits but did not state whether she found them persuasive (and if not, why not). (AR 24.)
Under the previous regulatory scheme, the law was clear that an ALJ could “reject a lay witness's testimony only ‘upon giving a reason germane to that witness.'” Ghanim, 763 F.3d at 1165 (quoting Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007)). If this standard applies, then the ALJ erred: The ALJ's statement establishes that the ALJ “reviewed the lay witness testimony in the record, but it does not provide a reason for discounting the testimony.” Molina v. Astrue, 674 F.3d 1104, 1114-15 (9th Cir. 2012), superseded by regulation on other grounds. Furthermore, that error would be harmful. “[W]here the ALJ's error lies in a failure to properly discuss competent lay testimony favorable to the claimant, a reviewing court cannot consider the error harmless unless it can confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different disability determination.” Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006). Rogers's husband largely corroborated her testimony (e.g., she has insomnia, persistent fatigue, and memory issues). As described above, if that testimony were credited as true, then Rogers would be incapable of performing the jobs identified by the ALJ at step five.
The Commissioner, however, disputes that the ALJ was required to provide germane reasons. Under the revised regulations, ALJs are not required “to articulate how [they] considered evidence from nonmedical sources . . . using the rules for considering and articulating [their] consideration of medical opinions . . . .” Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844, 5844 (Jan. 18, 2017); see 20 C.F.R. § 404.1520c(d). The Commissioner seizes on the language in the new regulations to argue that the ALJ need not always provide germane reasons for rejecting lay-witness testimony. According to the Commissioner, “[w]hether an ALJ should provide written analysis about such evidence depends on the circumstances of each case.” The Commissioner does not specify what circumstances would require a written explanation but nevertheless argues that they are not present here.
The Court disagrees with the Commissioner's argument, particularly to the extent that it is based on 20 C.F.R. § 404.1520c(d). Put simply, this provision says that ALJs need not treat lay-witness testimony like medical opinions. In no way does this proposition undermine the caselaw requiring “germane reasons” for rejecting lay-witness testimony. As one district court in this circuit has explained, the germane-reasons standard “has always been a different (and lower) standard than that required for evaluating medical opinions.” Alice B. v. Kijakazi, No. 20-cv-05897, 2021 WL 6113000, at *8 (N.D. Cal. Dec. 27, 2021). As such, “[t]he new regulations providing that lay opinions do not need to be evaluated under the same standards as medical opinions [are] . . . consistent with the Ninth Circuit's germane reasons standard . . . .” Id. Accordingly, the Court finds that the ALJ committed harmful error.
The Commissioner also argues that “an ALJ's failure to address [lay-witness testimony] should never be the reason for overturning an ALJ's decision.” This argument is unavailing. Errors concerning the rejection of lay-witness testimony are subject to harmless-error analysis, Molina, 674 F.3d at 1122, necessarily implying that such error can in fact be harmful and thus reversible. See Stout, 454 F.3d at 1056-57 (reversing the ALJ's decision based solely on the erroneous rejection of lay-witness testimony). Ukolov v. Barnhart, 420 F.3d 1002 (9th Cir. 2005), which the Commissioner cites for support, does not stand for the contrary. In that case, the court explained that an application for benefits must be supported by both a diagnosis and a description of symptoms, and it held that the claimant failed to establish disability because his application was supported only by the latter (which included lay-witness testimony). Id. at 1006 & n.6. Rogers's application is supported both by diagnoses and descriptions of her symptoms, making Ukolov inapposite.
IV. The credit-as-true rule is satisfied.
Generally, when a federal court finds that an administrative agency erred, the court should “remand to the agency for additional investigation or explanation.” Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)). However, under the “credit-as-true” rule, applicable in social security cases, a court may remand for an immediate award of benefits if:
(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony 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 remand.Garrison, 759 F.3d at 1020. The credit-as-true rule is “flexib[le], ” allowing “courts to remand for further proceedings when, even though all conditions of the . . . rule are satisfied, an evaluation of the record as a whole creates serious doubt that a claimant is, in fact, disabled.” Id. at 1021.
The Court concludes that the credit-as-true rule is satisfied. The record has been fully developed. Rogers's medical record is extensive, totaling hundreds of pages. It includes Rogers's testimony, Rogers's adult function report, third-party statements from her family and friend, testimony from a vocational expert, and treatment notes documenting numerous appointments concerning Rogers's impairments. Importantly, the record is strikingly consistent. For instance, over a nearly two-year period before her hearing, Rogers consistently reported insomnia, daytime fatigue, and the resulting need for naps. (AR 332, 400-01, 406, 434, 436, 443, 445, 487, 511, 590, 720, 739, 746-55.)
Next, the ALJ erred in rejecting Rogers's symptom testimony. This testimony, if credited as true, establishes that Rogers is disabled, because she would miss at least two days of work per month due to excessive fatigue, and the vocational expert testified that a hypothetical claimant could not maintain employment while missing two days per month. (AR 46, 57, 60.) Finally, given Rogers's severe impairments of insomnia, obstructive sleep apnea, and sleep disorder versus seizure disorder, the combination of her other severe impairments, and her consistent reports of extreme fatigue, which were corroborated by her husband, there is no serious doubt, based on the record as a whole, that Rogers is disabled. Therefore, IT IS RECOMMENDED that the Commissioner's decision be reversed, and that this matter be remanded back to the agency for the calculation and award of benefits.
This recommendation is not immediately appealable to the United States Court of Appeals for the Ninth Circuit. The parties shall have fourteen days from the date of service of this recommendation to file specific written objections with the district court. The parties shall have fourteen days to file responses to any objections. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2). No. replies may be filed absent prior authorization by the district court. Failure to file timely objections may result in the acceptance of this recommendation by the district court without de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
The Clerk of Court is directed to terminate the referral of this matter. Filed objections should bear the following case number: CV-20-00532-TUC-SHR.