1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TURAYL P. A., Case No.: 3:23-cv-1589-WQH-DTF
12 Plaintiff, REPORT AND 13 v. RECOMMENDATION REGARDING JOINT MOTION FOR JUDICIAL 14 MARTIN O’MALLEY, Commissioner of REVIEW Social Security, 15 Defendant. [ECF No. 13] 16 17 18 19 On August 23, 2023, Plaintiff Turayl P.A.1 commenced this action against 20 Defendant Kilolo Kijakazi2, Acting Commissioner of Social Security, for judicial review 21 under 42 U.S.C. 42 U.S.C. § 405(g) of the finding that Plaintiff was not disabled under 22 the Social Security Act for Social Security Disability Insurance (“SSDI”). (ECF No. 1.) 23 Defendant filed the Administrative Record on October 27, 2023. (ECF No. 7.) On 24 25 26 1 The Court refers to Plaintiff using only his first name and last initial pursuant to the 27 Court’s Civil Local Rules. See S.D. Cal. Civ. R. 7.1(e)(6)(b). 2 Martin O’Malley is now the Commissioner of Social Security and is automatically 28 1 February 23, 2023, the parties filed a Joint Motion for Judicial Review of Final Decision 2 of the Commissioner of Social Security. (ECF No. 13.) 3 This Report and Recommendation is submitted to United States District Judge 4 William Q. Hayes under 28 U.S.C. § 636(b)(1) and Local Civil Rule 72.1(c). For the 5 following reasons, the Court recommends that the final decision of the Commissioner be 6 REVERSED, and this matter be REMANDED for further administrative proceedings 7 consistent with this Report and Recommendation. 8 I. BACKGROUND 9 A. Factual and Procedural History 10 Plaintiff, born in 1984, has a high school education and previously held 11 employment as an administrative clerk and a flight operations specialist. (AR 28-29). 3 12 Plaintiff also served in the United States Navy from August 2003 to March 2011. (AR 13 195.) He was awarded benefits by the Department of Veteran Affairs (VA) at a “100% 14 rate effective February 25, 2019” finding Plaintiff was unable to work due to his service- 15 connected disabilities. (AR 189.) 16 On November 10, 2020, Plaintiff filed an application for disability insurance 17 benefits under the Social Security Act. (AR 19.) In that application, he alleged that he 18 had been disabled since August 28, 2019, due to post traumatic stress disorder (“PTSD”), 19 depression, anxiety, insomnia, and arthritis causing lower back and knee pain. (AR 249.) 20 The claims were denied in January of 2021, and again in August of 2021 after 21 reconsideration. (AR 19.) An administrative hearing was conducted on February 16, 22 2022 before Administrative Law Judge (“ALJ”) Kevin W. Messer. (Id.) On September 23
24 25 3 “AR” refers to the Administrative Record filed on October 27, 2023. (ECF No. 7.) The Court’s citations to the AR use the page references in the original document rather than 26 the page numbers designated by the Court’s case management/electronic case filing 27 system (“CM/ECF”). For all other documents, the Court’s citations are to the page numbers affixed by CM/ECF, 28 1 19, 2022, the ALJ issued a decision and concluded that Plaintiff was not disabled from 2 August 28, 2019 through December 31, 2020, the last date insured. (AR 19-30.) Plaintiff 3 requested a review of the ALJ’s decision; the Appeals Council denied the request on June 4 30, 2023 adopting the ALJ’s decision as final. He then commenced this action pursuant to 5 42 U.S.C. § 405(g). 6 B. ALJ’s Decision 7 In rendering his decision, the ALJ followed the Commissioner’s five-step 8 sequential evaluation process. See 20 C.F.R. § 404.1520; see also Tackett v. Apfel, 180 9 F.3d 1094, 1098-99 (9th Cir. 1999) (describing five steps). The ALJ determined at step 10 one that Plaintiff had not engaged in substantial gainful activity during the period from 11 his alleged onset date of August 28, 2019 through his last date insured of December 31, 12 2020. (AR 21.) 13 At step two, the ALJ found that Plaintiff’s severe impairments included 14 lumbosacral strain, post-traumatic patellofemoral pain syndrome, and mild bilateral lower 15 extremity radiculopathy. (AR 22.) He concluded that Plaintiff’s other claimed 16 impairments, including tinnitus, insomnia, anxiety, and PTSD, were not severe. (Id.) The 17 ALJ determined at step three that Plaintiff did not have an impairment or combination of 18 impairments that met or medically equaled the severity of one of the listed impairments. 19 (AR 23.) 20 The ALJ found that Plaintiff had the following residual functional capacity (RFC): 21 [L]ight work as defined in [20 C.F.R. § 404.1567(b)] except the claimant can occasionally climb ramps and stairs but never climb ladders, ropes or scaffolds. 22 The claimant can occasionally balance, stoop, kneel, crouch and crawl. The 23 claimant must avoid concentrated exposure to hazards such as operational control of moving machinery and unprotected heights. The claimant is limited to the 24 occasional operation of a motor vehicle. 25 (AR 24.) 26
27 At step four, the ALJ determined that Plaintiff was unable to perform any past 28 relevant work. (AR 28.) Nevertheless, the ALJ found, based on testimony from a 1 vocational expert, that Plaintiff was capable of performing the requirements of the 2 representative light and semiskilled occupations of office helper, price marker, and 3 burrito maker (step five). (AR 29.) Accordingly, the ALJ concluded that Plaintiff had not 4 been under a disability from August 28, 2019 through December 31, 2020. (AR 30.) 5 C. Disputed Issues 6 The parties have briefed five issues in their joint motion which Plaintiff asserts are 7 grounds for reversal: (1) the ALJ opinion failed to properly consider the VA disability 8 rating or give proper reasons to disagree; (2) the ALJ failed to properly analyze Plaintiff’s 9 subjective symptom testimony; (3) the ALJ improperly used activities of daily living to 10 attack Plaintiff’s credibility in the subjective symptom analysis; (4) the ALJ misstated 11 facts and erred in finding Plaintiff’s tinnitus non-severe; and (5) the ALJ opinion is 12 unsupportable due to misstatement of facts regarding the mental impairment evidence 13 from SSA, as well as the cherry-picking and omission of contrary evidence. (Jot. Mot. at 14 9.) 15 I. LEGAL STANDARDS 16 Section 405(g) of the Social Security Act allows unsuccessful applicants to seek 17 judicial review of a final agency decision of the Commissioner. 42 U.S.C. § 405(g). The 18 scope of judicial review is limited, however, and the denial of benefits “‘will be disturbed 19 only if it is not supported by substantial evidence or is based on legal error.’” Brawner v. 20 Sec’y of Health & Human Servs., 839 F.2d 432, 433 (9th Cir. 1988) (quoting Green v. 21 Heckler, 803 F.2d 528, 529 (9th Cir. 1986)); see also Garrison v. Colvin, 759 F.3d 995, 22 1009 (9th Cir. 2014). Substantial evidence means “‘more than a mere scintilla but less 23 than a preponderance; it is such relevant evidence as a reasonable mind might accept as 24 adequate to support a conclusion.’” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 25 1997) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)); see also Biestek 26 v. Berryhill, 587 U.S. ----, ----, 139 S. Ct. 1148, 1154, 203 L. Ed. 2d 504 (2019) 27 (“[W]hatever the meaning of ‘substantial’ in other contexts, the threshold for . . . 28 evidentiary sufficiency [under the substantial evidence standard] is not high.”). The court 1 must consider the entire record, including the evidence that supports and detracts from 2 the Commissioner’s conclusions. Desrosiers v. Sec’y of Health & Human Servs., 846 3 F.2d 573, 576 (9th Cir. 1988). If the evidence supports more than one rational 4 interpretation, the court must uphold the ALJ’s decision. Burch v. Barnhart, 400 F.3d 5 676, 679 (9th Cir. 2005); Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020). The district 6 court may affirm, modify, or reverse the Commissioner’s decision. 42 U.S.C. § 405(g). 7 The matter may also be remanded to the Social Security Administration for further 8 proceedings. Id. 9 III. DISCUSSION 10 A. Consideration of VA Disability Rating 11 Plaintiff’s first argument is that the ALJ erred by declining to consider Plaintiff’s 12 VA disability rating. (Joint Mot., ECF No 13 at 10-18.) Specifically, Plaintiff contends 13 that the ALJ erred by failing to provide any explanation of the “persuasive, specific, valid 14 reasons” required if the “SSA wishes to differ with the VA rating.” (Id. at 11.) In his 15 opinion, the ALJ wrote: 16 “[Plaintiff] has a 100% disability rating from the Department of Veterans Affairs. Here, regarding claims filed on or after March 27, 2017, the undersigned did not 17 provide any written analysis about how we consider statements on issues reserved 18 to the Commissioner, because they are neither inherently valuable nor persuasive.” (AR 28.) 19
20 Plaintiff argues that while regulations that took effect in 2017 may have changed 21 the amount of weight a VA rating should be accorded, they did not change that the “VA 22 rating must be accorded respect because of the marked similarities of the two disability 23 determination processes” and if the “SSA wanted to disagree with the VA, it must 24 provide “persuasive, specific, valid reasons for doing so.” (ECF No. 13 at 11 citing 25 McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002).) Defendant argues, 26 however, that Plaintiff’s argument relies on outdated caselaw that has been superseded by 27 revised regulations. The Court agrees with Defendant. 28 1 First, the revised regulations at issue in this matter are applicable to disability 2 claims that arise on or after March 27, 2017 and direct that ALJ’s “will not provide any 3 analysis in [their] determination or decision about a decision made by” other 4 governmental agencies, “such as the [VA].” 20 C.F.R. § 404.1504. The regulations 5 clarify that agencies, such as the VA, make “disability … and other benefits decisions for 6 [its] own programs using [its] own rules,” and they are therefore not “binding” on the 7 SSA. Id. Plaintiff’s claims arise after March 27, 2017 and therefore, these new 8 regulations apply. 9 Second, the Ninth Circuit recently held that McCartey “is no longer good law for 10 claims filed after March 27, 2017” and is “clearly irreconcilable with the revised 11 regulations.” Kitchen v. Kijakazi, 82 F.4th 732, 738 (9th Cir. 2023); see also Gerald C. v. 12 O’Malley, No. 3:23-cv-00018-JLB, 2024 WL 1298009, at *3 (S.D. Cal. Mar. 26, 2024) 13 (Relying on Kitchen’s holding finding that the ALJ did not err by discounting Plaintiff’s 14 VA disability rating based on the new regulations). “Put simply, the 2017 regulations 15 removed any requirement for an ALJ to discuss another agency’s rating.” Kitchen, 82 16 F.4th at 739. 17 Accordingly, under the new regulations and Kitchen, it was not error for the ALJ to 18 exclude Plaintiff’s VA disability rating from their analysis. 19 B. Evaluation of Subjective Symptom Testimony 20 Plaintiff’s second contention is that the ALJ failed to offer specific, clear, and 21 convincing reasons for rejecting Plaintiff’s testimony. (Joint Mot., ECF No. 13 at 18-24, 22 27-31.) He contends that the ALJ only summarized the medical evidence in the record 23 and failed to specify the evidence that undermine Plaintiff’s testimony. (See id.) The 24 Court agrees. 25 1. Plaintiff’s symptom testimony 26 At the administrative hearing, Plaintiff testified that he is unable to work due to 27 “how bad my … back issue is” and he is “always” in pain which results in difficulty 28 sleeping, sitting, and standing. (AR 45.) He explained that he takes prescription 1 medication through the VA because the pain is “constant” and is at a level “eight or 2 nine.” (AR 46.) While Plaintiff was prescribed physical therapy for his back pain, he 3 received therapy through the VA through a program called the Choice Program which 4 was discontinued in 2016. (Id.) Plaintiff testified he is unable to walk his dog for long 5 walks because he is unable to stand for long periods of time. (AR 57.) Plaintiff also 6 testified that he has tinnitus, as well as arthritis in his knees. (AR 48-49.) 7 Plaintiff further testified that he was diagnosed with depression, anxiety, insomnia, 8 and adjustment disorder by the VA and told that they were all symptoms of PTSD. (AR 9 50.) Plaintiff stated that he is unable to work because he “get[s] really scared out in 10 public,” and speaking to people causes him to break out in a sweat. (AR 50.) At his 11 hearing he told the ALJ that he was having “an issue trying to form my words and speak 12 clearly.” (Id.) When he is “forced” to speak with people, he starts to sweat and his 13 “voice starts to tremble.” (AR 51.) Plaintiff also testified that when he is given 14 instructions at a job he has trouble focusing and loses his “train of thought really, really 15 quick.” (Id.) Plaintiff was prescribed medication but they “weren’t strong enough” and 16 his current physician, Dr. Chen, is “upping his dosage” for gabapentin and “all these 17 other new medications.” (Id.) Plaintiff informed the ALJ that he was seeing a mental 18 health care provider regularly for mental health treatment. (Id.) 19 Plaintiff testified that he informed Dr. Chen that the medication was not helping 20 with his mood, anxiety, or panic attacks so she changed his medication and increased the 21 dosages. (AR 52.) Plaintiff also testified that he takes the Mirtazapine and Effexor for 22 depression, and Hydroxyzine for sleep. (AR 53.) He also testified that due being in the 23 military “in the war zones and fire alarms and collision alarms going off,” loud noises 24 “freaks [him] out.” (AR 61.) 25 2. Applicable standards 26 It is up to the ALJ “to determine credibility, resolve conflicts in the testimony, and 27 resolve ambiguities in the record.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) 28 (quoting Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014)). An 1 ALJ engages in a two-step analysis to determine the extent to which a claimant’s report 2 of symptoms must be credited. First, the ALJ must decide whether the claimant has 3 presented objective medical evidence of an underlying impairment which could 4 reasonably be expected to produce the pain or other symptoms alleged. Garrison, 759 5 F.3d at 1014; see also SSR 16-3p, 2017 WL 5180304, at *3 (Oct. 25, 2017); 20 C.F.R. 6 § Smar404.1529(b). Second, the ALJ evaluates the intensity and persistence of the 7 claimant’s symptoms to determine the extent to which they limit the ability to perform 8 work-related activities. SSR 16-3p, 2017 WL 5180304, at *3; 20 C.F.R. § 404.1529(c). 9 When the ALJ finds that a claimant is not malingering, “the ALJ can reject the claimant’s 10 testimony about the severity of her symptoms only by offering specific, clear and 11 convincing reasons for doing so.” Garrison, 759 F.3d at 1014-15; see also Lambert, 980 12 F.3d at 1277; Smartt v. Kijakazi, 53 F.4th 489, 497 (9th Cir. 2022). This requires the ALJ 13 to “specifically identify the testimony [from a claimant] she or he finds not to be credible 14 and . . . explain what evidence undermines that testimony.” Lambert, 980 F.3d at 1277 15 (citing Treichler, 775 F.3d at 1102). 16 3. ALJ failed to specifically identify the testimony he found not to be credible and explain his rationale 17
18 The ALJ determined that Plaintiff satisfied step one of the two-step analysis. (AR 19 25.) At the second step, the ALJ stated that the “[Plaintiff’s] medically determinable 20 impairments could reasonably be expected to cause the alleged symptoms; however, the 21 claimant’s statements concerning the intensity, persistence and limiting effects of these 22 symptoms are not entirely consistent with the medical and other evidence in the record 23 for the reasons explained in this decision.” (Id.) This language, which is routinely 24 included in ALJ decisions denying benefits, is insufficient in and of itself to meet the 25 requirements set forth in Ninth Circuit authority to reject a plaintiff’s pain testimony 26 because it does not “identify what parts of the claimant’s testimony were not credible and 27 why.” See Lambert, 980 F.3d at 1277; Treichler, 775 F.3d at 1103. After making this 28 boilerplate statement, ALJs typically identify the parts of the claimant’s testimony that 1 were not credible and explain the reasons for their finding. Treichler, 775 F.3d at 1103. 2 Here, the ALJ offered the following paragraphs summarizing the medical and treatment 3 evidence in the record: 4 As for the claimant’s statements about the intensity, persistence, and limiting 5 effects of his symptoms, they are not entirely consistent with the record. 6 Regarding the impairments, the record shows that on November 24, 2018, the claimant presented with complaints of worsening low back pain. A 7 CP&P examination showed a decreased lumbar motion and lumbar 8 tenderness. However, he had a full muscle strength, normal reflexes, intact sensation and negative straight leg raise test. In addition, he was not using an 9 assistive device to ambulate. [Exhibits 2F/18-19, 21-23 (AR 414-415, 417- 10 419)].
11 On April 9, 2019, during follow-up, he reported improvement of his back 12 pain with medication adjustments. He was advised to keep up with his home exercise programs to maintain flexibility. In addition, a physical examination 13 showed a normal lumbar motion, no stiffness or tenderness, full muscle 14 strength and neurological deficits. [Exhibits 2F/99 (AR 295), 1F/20 (AR 300)]. 15
16 On June 25, 2019, he complained of right knee pain. During this visit, a CP&P examination showed a normal knee motion and no pain with 17 weightbearing, full muscle strength and no ankylosis or subluxation, normal 18 sensation and intact reflexes. Additionally, a bilateral knee x-ray was normal and unremarkable. [Exhibits 2F/85, 111 (AR 481, 507), 2F/10-14, 22 (AR 19 406-410, 418)]. 20 On July 20, 2021, the claimant went for an orthopedic evaluation with Julian 21 Tran, M.D., where he complained of chronic back pain. Dr. Tran reported 22 that the claimant had a normal gait pattern and did not ambulate with an assistive device. In addition, the claimant was able to toe, heel and tandem 23 walk without any problems. He gave a good effort and did not display any 24 painful behaviors. He had pain with lumbar motion, lumbar right knee tenderness, hyperreflexia in the bilateral ankles and positive Lasegue test on 25 the right lower extremity. However, he had a negative Romberg, straight leg 26 raise, McMurray and Lachman tests, full joint motion, no joint deformity, swelling or enlargement, no clonus, intact reflexes and full muscle strength. 27 He reported that as part of his daily activities, he was able to engage in self- 28 care, prepare meals, wash dishes, do laundry, watch television, garden, 1 drive and shop for groceries. [Exhibits 4F/2-3, 5-6 (AR 463-64, 466-67),
2 Here, the record shows an occasional decreased lumbar motion, lumbar and 3 right knee tenderness, positive Lasegue test and ankle hyperreflexia. However, overall physical exams show a full muscle strength, negative 4 Romberg, straight leg raise, McMurray and Lachman tests, full joint and 5 lumbar motion, no joint deformity, swelling or enlargement, intact reflexes, normal sensation and full muscle strength. In addition, the 6 claimant has a normal gait and ambulates without an assistive device. His 7 back pain also improved with medication and contrary to disabling allegations, he receives advice to exercise. He is also able to engage in 8 robust activities of daily living. For instance, he is able to engage in self- 9 care, prepare meals, wash dishes, do laundry, watch television, care for his dog, garden, drive, use the computer, manage finances and shop for 10 groceries. Thus, based on the record, the undersigned finds the claimant can 11 perform light work with postural and environmental limitations to account for deficits from these impairments. [Exhibits 2F/10-14,19, 22-24, 99-100 12 (AR 406-410, 415, 418-420, 495-496), 4F/2, 4-6 (AR 562, 565-67), 1F/20 13 (AR 300); 5E/2-5 (AR 243-246)].
14 (AR 25-26.) 15 In other words, rather than specifically identifying the testimony from Plaintiff that 16 he found to not be credible and explaining his rationale, the ALJ simply summarized 17 Plaintiff’s testimony and the medical record exhibits he relied upon. This is insufficient. 18 “[P]roviding a summary of medical evidence . . . is not the same as providing clear and 19 convincing reasons for finding the claimant’s symptom testimony not credible.” Brown- 20 Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015). Put simply, the ALJ must identify 21 which specific testimony he found not to be credible or credible but he did not do so. 22 “Because the grounds upon which an administrative order must be judged are those upon 23 which the record discloses that its action was based, the agency must explain its 24 reasoning.” Treichler, 775 F.3d at 1102 (internal citation and quotations omitted). The 25 Court should not have to speculate as to the grounds for the ALJ’s determinations. See 26 Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991). The ALJ’s decision here does not 27 set forth any specific reasons or explanation as to why he rejected Plaintiff’s symptom 28 1 testimony. As in Lambert, the Court therefore “cannot review whether the ALJ provided 2 specific, clear, and convincing reasons for rejecting [Plaintiff’s] pain testimony [because] 3 . . . the ALJ never identified which testimony [he] found not credible, and never 4 explained which evidence contradicted that testimony.” See Lambert, 980 F.3d at 1277 5 (citing Brown-Hunter, 806 F.3d at 494 (9th Cir. 2015)). 6 Ninth Circuit precedent clearly required the ALJ to do more than was done here. 7 See Lambert, 980 F.3d at 1277. The ALJ thus committed legal error by failing to 8 specifically identify which part of Plaintiff’s testimony about the severity of his 9 symptoms he found not credible and link that testimony to evidence that contradicted the 10 testimony.4 11 C. Evaluation of Subjective Symptom Testimony regarding Activities of Daily 12 Living 13 Plaintiff’s third contention is that the ALJ erroneously relied on his activities of 14 daily living as a basis for discrediting his subjective symptom analysis. (Joint Mot.at 31- 15 34, 36-37.) Specifically, he maintains that the ALJ failed to follow Ninth Circuit law on 16 the use of activities of daily living in both the step two and step five analysis. (Id. at 33.) 17 The Court agrees. 18 1. ALJ’s summary of Plaintiff’s testimony and credibility finding 19 In step five, the ALJ finds that Plaintiff testified at his hearing that he is “able to 20 prepare simple meals, do laundry, clean his room and care for his dog.” (AR 25.) When 21 22 23 4 Defendant argues that Plaintiff did not challenge the ALJ’s findings that his mental impairments were not severe and therefore “he has forfeited the issue for judicial review.” (Jt. Mot. at 24, n. 2. citing Bray 24 v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226 n. 7 (9th Cir. 2009)). This argument is without 25 merit. The Court’s Scheduling Order explicitly directs the Plaintiff shall either “(a) specify the respects in which Plaintiff contends the ALJ’s decision misstates, mischaracterizes, or omits any of the material 26 medical evidence and/or testimony of record, or (b) state that the contentions of misstatement, mischaracterization, or omission are addressed in the argument in support of the Joint Motion for 27 Judicial Review.” (Scheduling Order, ECF No. 8 at 4.) Plaintiff clearly challenged the ALJ’s finding that his medical impairments were non-severe in a section in the Joint Motion entitled “Plaintiff’s 28 1 discussing the medical opinion of Dr. Tran, the ALJ adds additional summary of 2 Plaintiff’s testimony as also including his purported ability to perform self-care, wash 3 dishes, watch television, garden, drive, and shop for groceries. (AR 26.) In discussing 4 the medical opinions of Dr. Geraldine Kuo, Dr. H. Amado, Dr. Willibee, and Dr. 5 Michael, the ALJ repeatedly states that Plaintiff is “also able to engage in robust 6 activities of daily living.” (AR 26-27.) The ALJ found that Plaintiff “has the above 7 residual functional capacity assessment, which is supported by the medical record and the 8 claimant’s self-reported activities of daily living.” (AR 28.) 9 2. Applicable Standards 10 An “ALJ [is] permitted to consider daily living activities in his credibility 11 analysis.” Burch, 400 F.3d at 681. Daily activities may “form the basis for an adverse 12 credibility determination” when: (1) the daily activities contradict the claimant's other 13 testimony or (2) the daily activities meet the threshold for transferable work skills. Orn v. 14 Astrue, 495 F.3d 625, 639 (9th Cir. 2007)) Neither of these bases is supported by the 15 ALJ's decision. 16 3. ALJ failed to specifically identify how Plaintiff’s daily activities 17 contradicted his testimony 18 Defendant makes clear that the ALJ’s decision was based on the first factor found 19 in Orn. (Jot. Mot. at 35.) Specifically, Defendant argues that the “ALJ reasonably cited 20 Plaintiff’s contradictory daily activities to reject his symptom allegations.” (Id. at 35 21 citing AR 26). However, the Court disagrees and finds that the ALJ erred by failing to 22 specifically identify any part of Plaintiff's testimony that he determined was not credible 23 as it relates to his daily activities, which has prevented the Court from conducting a 24 meaningful judicial review. See Parra v. Astrue, 481 F.3d a742, 750 (9th Cir. 2007) 25 (“The ALJ must provide clear and convincing reasons to reject a claimant's subjective 26 testimony, by specifically identifying what testimony is not credible and what evidence 27 undermines the claimant's complaints.”); Reddick v. Chater, 157 F.3d 715, 722-22 (9th 28 Cir. 1998) (“General findings are insufficient; rather, the ALJ must identify what 1 testimony is not credible and what evidence undermines the claimant's complaints.”); 2 Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) ( [a]n ALJ “must state specifically 3 which symptom testimony is not credible and what facts in the record lead to that 4 conclusion.”). 5 “[E]ngaging in daily activities that are incompatible with the severity of symptoms 6 alleged can support an adverse credibility determination.” Ghanim v. Colvin, 763 F.3d 7 1154, 1165 (9th Cir. 2014) (citing Orn, 495 F.3d at 639; Batson, 359 F.3d at 1196). 8 Here, the ALJ does state repeatedly that Plaintiff is able to “engage in robust activities of 9 daily living” but the opinion lacks any mention of Plaintiff’s specific testimony regarding 10 his impairments that were contradicted by his daily activities. Moreover, the ALJ fails to 11 identify the specific subjective symptom testimony that these activities undermine or 12 explain how the ability to perform these activities contradict Plaintiff’s specific 13 testimony. See Roberts v. Saul, 829 Fed.Appx. 757, 760 (9th Cir. 2020). The ALJ 14 cannot expect the court to “comb through the administrative record to find specific 15 conflicts.” Brown-Hunter, 806 F.3d at 494. 16 In sum, for the foregoing reasons, the ALJ committed legal error by failing to 17 provide specific, clear, and convincing reasons to reject the Plaintiff’s testimony based on 18 his daily activities. 19 D. ALJ’s Opinion finding Plaintiff’s Tinnitus and Mental Impairment non- 20 severe 21 1. Applicable standards 22 At the second step, the ALJ must determine whether the claimant has “a severe 23 medically determinable physical or mental impairment that meets the duration 24 requirement in § 404.1509, or a combination of impairments that is severe and meets the 25 duration requirement.” 20 C.F.R. § 404.1520(a)(4)(ii). The inquiry at Step Two is a de 26 minimis screening “to dispose of groundless claims.” Smolen, 80 F.3d at 1290; see also 27 Webb v. Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005). A claimant is required to make 28 a “threshold showing” that (1) he has a medically determinable impairment or 1 combination of impairments and (2) the impairment or combination of impairments is 2 severe. See 20 C.F.R. § 404.1520(c), 416.920(c). An ALJ’s decision that a claimant does 3 not have a severe impairment can only be affirmed when the determination is “clearly 4 established by medical evidence.” Webb, 433 F.3d at 687. 5 2. The ALJ’s finding Plaintiff’s tinnitus is non-severe is not supported by 6 substantial evidence 7 The ALJ found that Plaintiff had the “non-severe impairment[] of tinnitus.” (AR 8 22.) Plaintiff contends that the ALJ’s finding that his tinnitus as non-severe was 9 supported only by a “badly misleading misstatement of the medical evidence.” (Jot. Mot. 10 at 38.) In response, Defendant maintains that Plaintiff failed to demonstrate his tinnitus 11 was a “severe” impairment as defined in the regulations. (Id.) 12 In finding Plaintiff’s tinnitus non-severe, the ALJ determined that Plaintiff’s 13 “tinnitus is stable with treatment.” (AR 22 citing to AR 495.) Here, the ALJ relied on 14 one medical record to support his determination that Plaintiff’s diagnosis of tinnitus was 15 non-severe. However, he misrepresented the contents of this medical record. The ALJ 16 found that the “record shows that the tinnitus is stable with treatment.” (AR 22.) 17 (emphasis added.) The ALJ’s erroneous finding rests on the content of Exhibit 2F/99, 18 (AR 495), which actually states that Plaintiff’s tinnitus is “stable at baseline.” (emphasis 19 added.) In a medical context, “stable” would indicate that the condition is “not changing 20 or fluctuating5” at a given point in time. There is no mention of Plaintiff being on any 21 treatment for his tinnitus. In other words, the record shows that Plaintiff did have 22 tinnitus, and while it was not any better or any worse at that one moment in time, the 23 record does not provide any evidence as to the severity of the condition itself. 24 Defendant attempts to counter this argument by stating “the ALJ pointed out, a 25 clinician reported that Plaintiff’s tinnitus was ‘stable.’” (Jot. Mot. at 38.) However, the 26 27 28 1 ALJ did not merely say the condition was “stable,” he added language, unsupported by 2 the record, that it was stable “with treatment.” See Reddick, 157 F.3d at 722-23 (stating 3 that it is error for an ALJ to paraphrase medical evidence in a manner that is “not entirely 4 accurate regarding the content or tone of the record.”) The record is also replete with 5 Plaintiff listing tinnitus as a problem in his medical examinations on multiple occasions. 6 (See e.g., AR 400, 402-3, 436, 444, 448, 453, 465, 468, 475, 491, 495, 497, 504, 524, 7 529-30, 533, 536, 540, 543, 572, 582, 586, 593, 599, 605, 611, 617, 619, 623, 629.) 8 Therefore, the ALJ’s erroneous reliance on a finding there was a treatment for Plaintiff’s 9 tinnitus that was not found in the record is clear error and does not constitute “such 10 relevant evidence as a reasonable mind might accept as adequate” to support the ALJ’s 11 conclusion that Plaintiff’s tinnitus was non-severe. Sandgathe, 108 F.3d at 980. 12 Moreover, the Court finds that the error was not harmless as the ALJ did not consider 13 how this impairment affected Plaintiff’s ability to perform basic work or incorporate that 14 consideration into the RFC determination. See Smolen, 80 F.3d at 1290-92. 15 3. The ALJ’s finding Plaintiff’s mental impairments are non-severe is not 16 supported by substantial evidence 17 The ALJ found that Plaintiff’s mental impairments of “anxiety and post-traumatic 18 stress disorder, considered singly and in combination, did not cause more than minimal 19 limitation in the [Plaintiff’s] ability to perform basic mental work activities and were 20 therefore non-severe.” (AR 22.) 21 Plaintiff argues, however, that the ALJ misstated the evidence, impermissibly 22 cherry-picked evidence, and omitted evidence that was contrary to the ultimate finding of 23 the ALJ opinion. (Jot. Mot. at 41.) Defendant responds that Plaintiff “offers no specific 24 argument, nor does he cite to any part of the transcript to support his assertion,” and 25 therefore, the Court “need not address this argument.” (Id. citing Carmickle v. 26 Commissioner of Social Sec. Admin, 533 F.3d 1155, 1161 n2 (9th Cir. 2008) (“We do not 27 address this finding because Carmickle failed to argue this issue with any specificity in 28 his briefing.”). As set forth above, the Court finds that that Defendants argument that the 1 Plaintiff did not challenge the ALJ’s finding that his mental impairments were non severe 2 is without merit as Plaintiff clearly did offer specific arguments with regard to this issue 3 in the Joint Motion. See Jt. Mot. at 3-8. 4 An ALJ's determination that a claimant's mental impairments are non-severe is 5 supported by substantial evidence only if the ALJ properly considered the claimant's 6 mental health records when assessing the claimant's mental functioning under the 7 “paragraph B” criteria. See Woods v. Kijakazi, 32 F.4th 785, 793 (9th Cir. 2022) (citing 8 20 C.F.R. pt. 404, subpt. P, app. 1 § 12.00.A.2.b.). In evaluating the severity of a mental 9 impairment, an ALJ must use the “paragraph B” criteria from Section 12.00E of the 10 Appendix 1 listing of impairments. 20 C.F.R. §§ 404.1520a(c)(2)-(3), 416.920a(c)(2)-(3). 11 Accordingly, an ALJ will use the paragraph B “four broad functional areas” and “rate the 12 degree of [the claimant's] functional limitation ... ” to “[1] [u]nderstand, remember, or 13 apply information; [2] interact with others; [3] concentrate, persist, or maintain pace; and 14 [4] adapt or manage oneself.” 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3). The ALJ 15 must rate the claimant’s limitations in each of these categories as none, mild, moderate, 16 marked or extreme, and if the claimant has mild or no impairments in all four categories, 17 the impairment is non-severe. Id. 18 The ALJ concluded in his decision that Plaintiff’s anxiety and PTSD were non- 19 severe impairments and made this finding after considering the “paragraph B” criteria. 20 (AR 22.) The ALJ found that Plaintiff “has no limitation in understanding, remembering 21 or applying information; interacting with others; concentrating, persisting or maintaining 22 pace; and adapting or managing oneself.” (Id.) However, the Court agrees with Plaintiff 23 that the ALJ selectively chose certain evidence, as well as omitting other evidence, to 24 support his decision to find that Plaintiff’s mental impairments were not severe. 25 First, the ALJ’s statement that Plaintiff “reported that his mental symptoms were 26 well-controlled with medication from his primary physician” is a misrepresentation of the 27 record. (AR 22 citing 2F/72 (AR 468); 6F11, 15 (AR 723, 727).) The first Exhibit 28 referenced is Plaintiff’s visit with his primary care physician, however the record shows 1 that Plaintiff self-reported on one occasion that he was “doing ‘ok’ managing mood and 2 anxiety” but does not indicate what medication he was currently using. (AR 468.) 3 Instead, he references only past medications that “failed” either due to negative side 4 effects or ineffectiveness. Id. There is nothing in this record to indicate that his mental 5 health symptoms were “well controlled” with medication. Moreover, the fact that 6 Plaintiff reported he was doing “okay” on one occasion alone does not support a finding 7 that his mental impairments were non-severe. See Garrison, 759 F.3d at 1017 (Mental 8 health issues “wax and wane in the course of treatment” and it is error for an ALJ to pick 9 a few isolated instances of improvement and conclude a claimant is capable of working.”) 10 The second Exhibit referenced by the ALJ is not a treatment record of an examination 11 with his “primary care physician” but instead it is an examination with the SSA 12 Consultative Examiner (CE), Robert E. Willibee III, Psy.D. (AR 723, 727.) There is no 13 statement in this Exhibit indicating that Plaintiff’s symptoms were “well controlled” with 14 medication but rather it is noted that Plaintiff “did not bring in [his] medication” and he 15 “had some difficulty remembering the medication and dosages that were prescribed.” 16 (AR 723.) The CE psychologist does state that Plaintiff’s depression, anxiety, and PTSD 17 are “well controlled” but this is not a finding by his primary care physician as described 18 by the ALJ in his opinion. (AR 727.) Moreover, this statement is conclusory and fails to 19 provide any discussion as to the basis that forms the opinion that Plaintiff’s symptoms are 20 “well-controlled.” 21 Second, the ALJ found that “during the relevant period, the record does not show 22 the claimant received mental health treatment.” (AR 22.) This opinion is also not 23 supported by the record. Although the ALJ need not discuss every piece of evidence in 24 the record, they cannot ignore or omit evidence that is significant or probative. Hiler v. 25 Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012). 26 Here, the Court finds that the ALJ’s discussion largely omits Plaintiff’s mental 27 health treatment which is evidenced by documentation of prescription medication for his 28 mental health disorders. In fact, the ALJ cited to the CE performed by Dr. Willibee, who 1 performed the exam in 2022, and claimed that “VA records were reviewed” and “[n]o 2 psychiatric medications were listed on the medical records reviewed.” (AR 723-24.) 3 Throughout his VA medical records he indicates that he was diagnosed with depression 4 and anxiety. The VA medical records also show multiple medications he was prescribed 5 for his mental health impairments over the years. He was initially prescribed elavil in 6 2019, a medication used to treat depression6 and this prescription was continued into 7 2020. (AR 343, 371, 468.) At the same time, there is evidence he had been given a 8 different prescription for depression in this same timeframe, setraline7, which was 9 discontinued due to “poor tolerance” of the side effects. (AR 343, 468.) In early 2019, 10 Plaintiff had been prescribed fluoxetine8 which is used to treat, among other disorders, 11 depression, and panic disorder. (AR 382.) The evidence in the record clearly contradicts 12 Dr. Willibee’s findings that Plaintiff was not prescribed any psychiatric medications. An 13 ALJ must consider all relevant evidence in the record and not rely solely on only those 14 portions that support his findings. In Plaintiff’s medical records with his treating 15 physicians during the relevant time period, there are multiple references to anxiety and 16 depression. This shows a selective consideration of evidence when the ALJ found no 17 evidence of mental health treatment which is engaging in impermissible cherry-picking 18 of the record. See Garrison,759 F.3d at 1018 n 23. 19 The ALJ also relied on the mental impairment analysis in the CE report of Dr. 20 Willibee which it finds to be persuasive. (AR 27.) Specifically, the ALJ finds that the 21 CE report shows “mental exams during medical visits are unremarkable.” (Id. citing to 22 23 24 6 See https://www.webmd.com/drugs/2/drug-1807/elavil-oral/details (website last visited June 14, 25 2024.) 7 See 26 https://www.ncbi.nlm.nih.gov/books/NBK547689/#:~:text=Sertraline%20is%20an%20antidepressant% 20medication,in%20an%20accumulation%20of%20serotonin. (website last visited June 14, 2024.) 27 8 See https://www.mayoclinic.org/drugs-supplements/fluoxetine-oral-route/description/drg- 20063952#:~:text=Descriptions,PMDD)%2C%20and%20panic%20disorder. (website last visited June 28 1 Exhibit 2F/100, 109 (AR 496, 505), 6F/15 (AR 727). The first exhibit is two pages of a 2 multipage record for an examination Plaintiff had on April 9, 2019. (AR 496, 505.) 3 These two pages reference a medical condition unrelated to the issues in this matter. 4 However, what is not included is the rest of the medical record for that visit which are the 5 notes that Plaintiff has issues with “[d]epression/[a]nxiety/[i]nsomnia.” (AR 495.) 6 Plaintiff is also reported as stating that he “admits depressive mood [with] anxiety” for 7 which he was prescribed elavil. (Id.) In that same visit, it was noted Plaintiff was 8 diagnosed with depression, insomnia, anxiety disorder, and “depressive” disorder. (AR 9 497.) The ALJ excluded portions of the record from that visit which is a 10 mischaracterization of the record. See Reddick, 157 F.3d at 722-23. 11 Plaintiff also argues that it was error for the ALJ to completely disregard and fail to 12 discuss the “serious mental impairment medications” he has been on, as well as the 13 treatment notes of his current treating physician, Dr. Chen. (Jot. Mot. at 7.) The ALJ 14 acknowledges that Plaintiff “started seeing Stephan[ie] Chen, M.D, his psychiatrist, from 15 October 2021,” but gives no weight to the medical file or treatment notes of Dr. Chen. 16 (AR 22.) In October of 2021, Plaintiff was seen by Dr. Chen who noted in his record that 17 he had a diagnosis of PTSD, depression, and anxiety. (AR. 626.) During this visit she 18 prescribed effexor9 for anxiety and depression. In February of 2022, Plaintiff was seen 19 by Dr. Chen who noted that he had a “long [history] of PTSD symptoms starting from 20 multiple instances of combat trauma in deployment.” (AR 588.) 21 The ALJ gives no weight to the mental health records or treatment received from 22 Dr. Chen but suggests instead that because he received this treatment outside the date last 23 insured of December 31, 2020 they are not relevant. (AR 22.) The documentation in Dr. 24 Chen’s records indicate that as to Plaintiff’s PTSD, this condition began well before 25 December 31, 2020, and she was treating it as an ongoing condition. (AR 583-633.) The 26
27 9 See https://www.webmd.com/drugs/2/drug-1836/effexor-oral/details. (website last visited June 14, 28 1 record before the ALJ is replete with references to Plaintiff’s depression and anxiety 2 during the time period he was insured. As Plaintiff notes, the ALJ relies “heavily on the 3 mental impairment analysis” of Dr. Willibee who examined Plaintiff on one occasion in 4 2022 (AR 22), but ignores the entirety of Dr. Chen’s treatment notes even though she 5 began seeing Plaintiff in 2021. The Ninth Circuit has held that “[i]f the medical evidence 6 is not definite concerning the onset date and medical inferences need to be made, SSR 7 83-20 requires the [ALJ] to call upon the services of a medical advisor and obtain all 8 evidence which is available to make the determination.” Armstrong v. Commissioner of 9 Soc. Sec. Admin, 160 F.3d 587, 590 (9th Cir. 1998) (citation omitted.) Here, the record 10 shows that Plaintiff has been diagnosed with anxiety, depression, as well as PTSD and 11 continues to be treated for the conditions but the ALJ does not provide any specific 12 reasoning for excluding those treatment records for Plaintiff’s mental health impairments. 13 See Grube v. Comm. of Soc. Sec. Admin, No. 17-cv-4263-PHX-JZB, 2019 WL 917222, at 14 *3 (D. Ariz. Feb. 25, 2019) (It was plain error for the ALJ to exclude all treatment 15 records for dates after the date last insured.) 16 In summary, the Court finds that the ALJ erred at step two by finding Plaintiff’s 17 mental impairments not severe without substantial evidence, and by failing to consider 18 Plaintiff’s treating physician’s records without clear and convincing reasons for doing so. 19 The Court cannot conclude that the ALJ’s error was harmless. Failing to consider the 20 totality of Plaintiff’s medical records, including his more recent records from a treating 21 psychiatrist was central to the ALJ’s finding that Plaintiff’s mental impairments were 22 non-severe. Moreover, Plaintiff’s RFC included no limitations relating to his mental 23 impairments. Therefore, because the Court cannot determine that the ALJ’s errors are 24 “inconsequential to the ultimate disability determination,” the errors cannot be deemed 25 harmless.” See Carmickle, 466 F.3d at 885. 26 / / / 27 / / / 28 1 F. Remedy 2 Plaintiff requests that the Court that the Court remand for additional proceedings. 3 (Jot. Mot. at 43.) The decision whether to remand for further proceedings or for 4 immediate payment of benefits is within the discretion of the court. 42 U.S.C. § 405(g); 5 Treichler, 775 F.3d at 1099. “If additional proceedings can remedy defects in the original 6 administrative proceedings, a social security case should be remanded.” Lewin v. 7 Schweiker, 654 F.2d 631, 635 (9th Cir. 1981); see also Garrison, 759 F.3d at 1019 8 (noting that a Social Security case should usually be remanded to remedy defects in the 9 administrative proceeding). 10 The evidence in this case does not conclusively establish that Plaintiff is disabled 11 under the Social Security disability regulations. Rather the evidence must still be weighed 12 and evaluated properly. Additional proceedings can remedy the defects in the ALJ’s 13 decision. Accordingly, remand for additional proceedings is appropriate. 14 CONCLUSION AND RECOMMENDATION 15 For the reasons stated above, the Court recommends that the final decision of the 16 Commissioner be REVERSED, and the case REMANDED for further proceedings. 17 This Report and Recommendation will be submitted to the Honorable William Q. 18 Hayes, United States District Judge assigned to this case, pursuant to the provisions of 28 19 U.S.C. § 636(b)(1). Any party may file written objections with the Court and serve a 20 copy on all parties on or before July 9, 2024. The document should be captioned 21 “Objections to Report and Recommendation.” Any reply to the objections shall be served 22 and filed on or before July 16, 2024. The parties are advised that failure to file objections 23 within the specified time may waive the right to appeal the district court’s order. See 24 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 25 IT IS SO ORDERED. 26 Dated: June 24, 2024 ______________________ Hon. D. Thomas Ferraro 27 United States Magistrate Judge 28