Opinion
CV-22-00486-TUC-JCH (AMM)
01-26-2024
Mark Whitehead, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable Angela M. Martinez, United States Magistrate Judge.
Plaintiff Mark Whitehead (“Plaintiff”) brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision by the Commissioner of Social Security (“Commissioner”). Plaintiff filed an opening brief, Defendant responded, and Plaintiff replied. (Docs. 16, 18, 19.) Pursuant to the Rules of Practice of the Court, this matter was referred to Magistrate Judge Angela M. Martinez for a Report and Recommendation. (Doc. 11.) Based on the pleadings and administrative record, the Magistrate Judge recommends the District Court, after its independent review, remand for further proceedings.
I. Factual and Procedural History
Plaintiff is a 37-year-old man who suffers from multiple mental health conditions, including schizoaffective disorder, bipolar disorder, personality disorder, anxiety and depression. (Doc. 16 at 1-2, AR 97, 101.) Plaintiff also has a history of opioid and methamphetamine abuse. (AR 45-46, 69-72.)
Plaintiff was also diagnosed with PTSD. However, the Administrative Law Judge found the PTSD diagnosis unsupported by the treatment records. (AR 25, 948.)
Plaintiff has previous work experience in the security industry and information technology (IT), as well as restaurant work and cable installation. (AR 18, 85-86.) He held at least one of these jobs for at least one year. (AR 18, 277-79.) He testified to receiving some income from self-employment. (AR 18.) He filed applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) on October 7, 2019. (AR 15.) The applications alleged a disability onset date of July 4, 2014. (AR 15, 95.) The applications were denied initially on April 17, 2020, and on reconsideration on June 26, 2020. (AR 15, 95-109, 113-131.) A telephonic hearing was held on March 8, 2021 before Administrative Law Judge (ALJ) Larry E. Johnson. (AR 15, 61-92.) A second hearing was held on August 17, 2021 at which psychological expert Kent B. Layton, Ph.D., testified. (AR 15, 35-58.) The ALJ found Plaintiff not disabled. (AR 30.) The Appeals Council denied Plaintiff's request for review of the ALJ's decision, which then became the Commissioner's final decision. (AR 1-3.)
In finding Plaintiff not disabled, the ALJ concluded that Plaintiff had the severe impairments of personality disorder and substance addiction disorder. (AR 18.) The ALJ found that Plaintiff engaged in substantial gainful activity (SGA) in 2014 and 2015 when he worked in the security industry, but that there were also continuous 12-month periods during the relevant period when Plaintiff did not engage in SGA. (AR 18.) The ALJ determined that Plaintiff had the residual functional capacity (RFC) to perform work at any exertional level but with the following non-exertional limitations: social contact only incidental to the work performed, not required to frequently consult with coworkers or the public, public contact that is only incidental, brief, infrequent, and superficial, performing unskilled tasks with only one-step to three-step instructions, and nonproduction-type work, typically with objects or specific tasks rather than people. (AR 21.) Based on the vocational expert testimony, the ALJ concluded at Step Five that Plaintiff could perform past relevant work as a kitchen helper and as a bus person as well as other jobs that exist in significant numbers in the national economy such as laundry laborer and industrial cleaner. (AR 28-29.)
II. Standard of Review
The Commissioner employs a five-step sequential process to evaluate SSI and DIB claims. 20 C.F.R. §§ 404.1520; 416.920; see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To establish disability, the claimant bears the burden of showing he: (1) is not working; (2) has a severe physical or mental impairment; (3) the impairment meets or equals the requirements of a listed impairment; and (4) claimant's RFC precludes him from performing his past work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At Step Five, the burden shifts to the Commissioner to show that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant “disabled” or “not disabled” at any point in the five-step process, he does not proceed to the next step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
“The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The threshold for substantial evidence is “not high” 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) (quoting Consol. Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938)).
The court may overturn the decision to deny benefits only “when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is so because the ALJ “and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019 (quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). “Where evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Commissioner's decision “cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence that supports as well as detracts from the Commissioner's conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).
III. Discussion
Plaintiff argues the ALJ committed two errors: (1) his analysis of Dr. Layton's and Dr. Rohen's medical opinion evidence failed to properly account for limitations on the quality of Plaintiff's social interactions and (2) he failed to articulate clear and convincing reasons to disregard Plaintiff's symptom testimony. (Doc. 16 at 7-16.) The Court will remand on both issues.
a. Qualitative Limitations
Disability under the Social Security Act is defined as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which [] can be expected to last for a continuous period of not less than twelve months.” Gatliff v. Comm'r of Soc. Sec. Admin., 172 F.3d 690, 692 (9th Cir. 1999) (citing 42 U.S.C. § 1382c(a)(3)(A)). Generally, work lasting for three months or less due to a claimant's impairments is not considered substantial gainful activity and is presumed to be an “unsuccessful work attempt.” Id. (citing SSR 84-25). Thus, finding that a claimant can perform substantial gainful activity “requires more than a simple determination that [he] can find employment and [] can physically perform certain jobs; it also requires a determination that the claimant can hold whatever job he finds for a significant period of time.” Id. at 693 (quoting Singletary v. Bowen, 798 F.2d 818 (5th Cir. 1986)). “Where it is established that the claimant can hold a job for only a short period of time, the claimant is not capable of substantial gainful activity.” Id. at 694.
The regulations governing cases filed after March 27, 2017 provide that an ALJ will consider all medical opinions and, at a minimum, articulate how the ALJ evaluated the opinions' supportability and consistency. 20 C.F.R. §§ 404.1520c(a)-(b), 416.920c(a)-(b). The ALJ must “‘articulate . . . how persuasive' [he] finds ‘all of the medical opinions' from each doctor or other source . . . and ‘explain how [he] considered the supportability and consistency factors' in reaching these findings.” Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (citing 20 C.F.R. § 404.1520c(b)).
Here, at Step Three, the ALJ determined that Plaintiff had marked limitations in interacting with others. (AR 20.) The RFC addresses this limitation by restricting Plaintiff to work where social contact is only incidental to the work performed, where Plaintiff is not required to frequently interact with co-workers or the public, where public contact is only incidental, brief, infrequent, and superficial, and where Plaintiff works with objects or tasks rather than people. (AR 21.) Plaintiff contends that these limitations do not adequately account for the medical opinion evidence relating to Plaintiff's shortcomings in quality-rather than the frequency or subject-of interpersonal interaction. (Doc. 16 at 6.) Additionally, Plaintiff contends that this error is harmful because the vocational expert testified that a person with Plaintiff's personality traits of being self-centered, manipulative, and anti-social would likely not be able to maintain employment. (AR 5456.)
Dr. Layton testified that Plaintiff “would tend to throw people under the bus. He would cause conflicts in the workplace if he had worked with a group, so he would work with things instead of people.” (AR 44.) Dr. Layton further testified that Plaintiff “would be self-centered” and “anti-social, which is-he would try to get away with things. And he'd probably be manipulative . . . he would try to manipulate his way [] out of things.” (Id.) Dr. Layton further explained that Plaintiff “gets attention by his manipulations” and has “a personality disorder, which is severe.” (AR 45.) The ALJ found Dr. Layton's opinion “generally persuasive” and noted the testimony regarding Plaintiff's manipulativeness and disordered personality. (AR 26-27.)
Similarly, consultative examiner Dr. Noelle Rohen, Ph.D., stated in April 2020 that Plaintiff is “timid and anxious, prone to manipulation, and is at risk of responding with inappropriate displays of anger.” (AR 20, 949.) The ALJ found Dr. Rohen's opinion only partially persuasive due to Plaintiff's inconsistent reporting about his drug use and Dr. Rohen's unsupported PTSD diagnosis. (AR 25.) The ALJ found that Dr. Rohen's opinions regarding Plaintiff's functional limitations were consistent with medical evidence of Plaintiff's mood disorder and his self-reported relational difficulties. (Id.)
When evaluating medical opinion evidence, the ALJ must consider the consistency of the opinion with other medical evidence. 20 C.F.R. § 404.1520c(c)(2). Here, the ALJ found that the PTSD diagnosis was not consistent with treatment records from Plaintiff's mental health care providers at Community Bridges, Inc., and La Frontera. (AR 25.)
At the March 8, 2021 administrative hearing, the vocational expert testified that a person who was subject to the hypothetical RFC restrictions later adopted by the ALJ would be able to perform the jobs of kitchen helper, bus person, laundry laborer, industrial cleaner, and folding machine operator. (AR 87-88.) These jobs were only “examples” and the vocational expert stated that other jobs requiring varying levels of physical exertion would be available. (AR 88.)
However, at the the August 17, 2021 hearing, the following exchange between Plaintiff's attorney (Q) and the vocational expert (A) occurred:
Q: Occasional and superficial direct public contact.
And it was also said that he is self-centered, anti-social, will try to get away with things, is manipulative, and will try to get out of things, which I'm going to translate into he needs at least occasional look-in from a supervisor, and simple, unskilled work.
Even after the initial training period. Otherwise he will try to get away with things and not be on task. If that is the case, would that person be employable?
A: ...The first piece of what you said? How much interaction with co-workers? He needs to be actually alone, like isolated?
Q: .,.[F]or sake of the hypothetical, let's say occasional and superficial.
A: Okay. Well there are jobs, you know, like a machine feeder or a night janitor, things like that where you're doing it pretty much on your own.
However, if we look at the big picture, I think what I'm hearing you say, you used the word anti-social.
Q: Yes.
A: And manipulative. That strikes me as untrustworthy and perhaps-I don't want to go too far with that. But the big picture doesn't sound like a person like this would be able to keep a job very long, no.(AR 55-56.)
Here, although the ALJ adequately addressed the supportability and consistency of the medical source opinions, he did not adequately account for or address the effect of Plaintiff's qualitative limitations on his ability to maintain gainful employment. Although the ALJ considered the above vocational expert testimony and Dr. Layton's testimony in reaching his decision, he did not explain his reasoning with respect to this information. AR 27. This is error because the vocational expert testimony and Dr. Layton's testimony, in addition to the record, indicate that Plaintiff may be unable to sustain or maintain employment for a significant period of time due to his mental health and personality disorder(s). An inability to maintain employment would preclude him from substantial gainful activity. Gatliff, 172 F.3d at 692-94. Specifically, Dr. Layton testified that
Plaintiff would “try to get away with things” or “manipulate his way out of things,” which are not traits consistent with the requirements of keeping a job. And the vocational expert explicitly stated that Plaintiff would not “be able to keep a job very long.” As discussed above, the ALJ found that Plaintiff had a severe personality disorder and a marked limitation in ability to interact with others. Based on all of these factors, the Court recommends remand to resolve the question of whether Plaintiff's qualitative limitations, in the form of his mental health or personality disorder symptoms, preclude him from maintaining or sustaining substantial gainful employment. In addressing whether Plaintiff's qualitative limitations preclude him from substantial gainful employment, the ALJ shall consider (1) whether these limitations prevent Plaintiff from maintaining or sustaining work within the meaning of substantial gainful activity and (2) whether a single incident of manipulation, anger, conflict, or dishonesty arising from Plaintiff's qualitative limitations would preclude him from substantial gainful activity.
The Court recommends remand for further proceedings, rather than an award of benefits, because the record indicates that Plaintiff has held a job for at least one year in the past. Compare Gatliff, 172 F.3d 690 (remanding for award of benefits where plaintiff held 20-30 jobs over 15 years, was terminated from half, and longest job lasted six to eight months due to anger issues and interpersonal conflicts).
Additionally, the ALJ did not resolve the conflict in the vocational expert testimony stating both that Plaintiff would not be able to keep a job very long and that he would be able to perform jobs available in the national economy. See Wallace v. Barnhart, 256 F.Supp.2d 1360, 1374 (S.D. Fla. 2003) (remand for clarification of vocational expert's ambiguous and conflicting testimony). In light of the evidence and testimony pertaining to the severity of Plaintiff's symptoms and their effect on his ability to maintain a job, resolution of the vocational expert testimony conflict would likely assist in the ultimate disability determination. See id. Accordingly, the Court recommends remand on this basis as well.
b. Symptom Testimony
In general, “questions of credibility and resolution of conflicts in the testimony are functions solely” for the ALJ. Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)). However, “[w]hile an ALJ may certainly find testimony not credible and disregard it . . . [the court] cannot affirm such a determination unless it is supported by specific findings and reasoning.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884-85 (9th Cir. 2006); Bunnell v. Sullivan, 947 F.2d 341, 345-346 (9th Cir. 1995) (requiring specificity to ensure a reviewing court that the ALJ did not arbitrarily reject a claimant's subjective testimony); SSR 96-7p.
“SSRs do not carry the force of law, but they are binding on ALJs nonetheless.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009) (internal quotation omitted).
“To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007); see also 20 C.F.R. § 404.1529. 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.'” Id. at 1036 (quoting Bunnell, 947 F.2d at 344). Next, if “there is no affirmative 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.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen v. Chater, 80 F.3d 1273, 1281, 1283-84 (9th Cir. 1996)); see also Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014); Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2008) (quoting Lingenfelter, 504 F.3d at 1036).
The Commissioner disputes that the “clear and convincing” standard requires more than the substantial evidence standard of review. (Doc. 18 at 13, n. 4.) The Commissioner submits that to the extent courts have applied the “clear and convincing” standard in a way that requires more than the substantial evidence standard of review, such application is inconsistent with 42 U.S.C. § 405(g), but avers that the ALJ's opinion here is sufficient under either standard.
“Ultimately, the ‘clear and convincing' standard requires an ALJ to show his work.” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022). This Court's standard of review is not whether it is convinced by the claimant's testimony but rather “whether the ALJ's rationale is clear enough that it has the power to convince.” Id. “Contradiction with the medical record is a sufficient basis for rejecting the claimant's subjective testimony.” Id. “It is not the court's role to ‘second-guess' an ALJ's reasonable interpretation of a claimant's testimony.” Id. at 500; Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002)). Where the ALJ's interpretation of any inconsistency between a claimant's testimony and his reported impairments is “not unreasonable,” the ALJ's determination is affirmed. Id.
Here, in discounting Plaintiff's symptom testimony, the ALJ found that Plaintiff made inconsistent statements not fully supported by objective or opinion evidence regarding his substance abuse. (AR 22.) In support of this finding, the ALJ noted evidence that Plaintiff reported his substance abuse in remission while contemporaneous treatment notes documented positive drug screens and self-reported drug use. (Id.; AR 947, 956, 960-61.) The ALJ also cited January 2020 treatment notes in which Plaintiff reported being unemployed but getting money from going to casinos. In both instances, the medical provider noted that the veracity of Plaintiff's statements was “unknown” due to “contradictory statements [Plaintiff] has made to staff in the past.” (AR 22, 991.) Additional treatment notes further document Plaintiff's “red flags” and “contradictory remarks” and state that “without collateral information, it is difficult to know how truthful patient is with his histories and statements.” (AR 999, 1004.)
Plaintiff contends that his inconsistent or untruthful statements to medical providers are not a basis for discounting his symptom testimony because this manipulative behavior is a symptom of his illness that supports, rather than detracts, from his allegations. (Doc. 16 at 13.) Plaintiff further contends that the ALJ erred by relying on the medical provider's statements regarding the possibility of reducing Plaintiff's medications to find Plaintiff's testimony unreliable. (AR 22, 999.)
The Court agrees with Plaintiff that the ALJ did not provide clear and convincing reasons for rejecting Plaintiff's symptom testimony. First, the ALJ did not point to medical evidence in the record that contradicted Plaintiff's testimony. Nor did the ALJ explicitly identify medical evidence regarding impairments that contradicted Plaintiff's testimony regarding his impairments. Rather, in finding Plaintiff's testimony unreliable, the ALJ relied on instances when Plaintiff was untruthful or inconsistent in previous statements to medical providers. Prior inconsistent or unsupported statements are not the same as a “contradiction with the medical record” that would establish a basis for rejecting testimony. See Smartt, 53 F.4th at 499. To reject or discount Plaintiff's symptom testimony, the ALJ would have had to point to specific portions of the medical record evidence that contradicted that testimony. See id. Instead, the ALJ pointed to specific portions of the record showing that Plaintiff made inconsistent, questionable, or unsupported statements to medical providers. Absent an explanation of how or why this evidence undermines Plaintiff's symptom testimony, the Court cannot recommend affirming the ALJ's finding. Mere evidence of prior inconsistent statements to medical providers is not enough to find symptom testimony unreliable, and likely conflicts with SSR 16-3, which provides that an ALJ “will not assess an individual's overall character or truthfulness.” Indeed, the Court is inclined to agree with Plaintiff that his inconsistent or unsupported statements to medical providers support, rather than detract from, his allegations of mental health symptoms.
The ALJ further found Plaintiff's symptom testimony inconsistent with the evidence because “in January 2020, providers were considering tapering the claimant off medication, as he was not reporting severe symptoms.” (AR 22.) The Court agrees with Plaintiff that this is not a reasonable basis for discounting symptom testimony. A review of the medical note to which the ALJ refers reveals that the ALJ's characterization omits critical context: the discussion regarding the possible tapering of medication occurred in the context of a “polypharmacy” concern due to the number of medications Plaintiff was taking. (AR 999.) Furthermore, the note regarding the potential taper is followed by a note that the provider discussed “residential treatment options to address [Plaintiff's] ongoing substance abuse.” (AR 999.) Even if Plaintiff did report less severe symptoms in the context of using illicit substances while taking a concerning number of different medications, this is not a reasonable basis upon which to conclude that Plaintiff's mental health symptoms were not as severe as alleged. Indeed, in this Court's view, this evidence is consistent with evidence that Plaintiff's mental health symptoms were often quite severe and that he requested additional medications and higher doses several times. (AR 309-16, 322-23, 400, 422, 459-67, 491, 502-5, 513-15, 524, 551, 558-59, 591, 645, 655, 775, 918, 967, 978, 985, 1021, 1065, 1071, 1083.) Within this context, the statement regarding the possibility of tapering medications is not a reasonable basis for discounting Plaintiff's symptom testimony. See Garrison, 759 F.3d at 1017 (error to reject a claimant's testimony regarding mental health symptoms “merely because symptoms wax and wane in the course of treatment.”) Accordingly, the Court recommends remand to the ALJ to re-evaluate the credibility and reliability of Plaintiff's symptom testimony.
Plaintiff also argues that the ALJ improperly relied on Plaintiff's statements regarding his motivation for applying for disability benefits. However, it is unclear to what extent the ALJ relied on this information to discount Plaintiff's symptom testimony. It does not appear to be a primary reason for discounting the testimony.
IV. Conclusion and Recommendation
A federal court may affirm, modify, reverse, or remand a social security case. 42 U.S.C. § 405(g). When a court finds that an administrative decision is flawed, the remedy should generally be remand for "additional investigation or explanation." INS v. Ventura, 537 U.S. 12, 16 (2006) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)); see also Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004).
Here, Plaintiff seeks remand for further consideration. The Court finds that is the proper remedy. On remand, the ALJ shall consider (1) whether Plaintiff's qualitative limitations prevent Plaintiff from maintaining or sustaining work within the meaning of substantial gainful activity and (2) whether a single incident of manipulation, anger, conflict, or dishonesty arising from Plaintiff's qualitative limitations would preclude him from substantial gainful activity. The ALJ shall also consider and resolve, if possible, conflicts and ambiguities in the vocational expert testimony. Lastly, the ALJ shall reevaluate the credibility and reliability of Plaintiff's symptom testimony.
For the foregoing reasons, the Magistrate Judge recommends that the District Court remand this matter to the ALJ for further proceedings, pursuant to sentence four of 42 U.S.C. § 405(g). Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV-22-486-TUC-JCH.