6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Sara Elise Ain, No. CV-24-00008-DLR (ESW) 9
10 Plaintiff, REPORT AND RECOMMENDATION 11 v. 12 Commissioner of the Social Security 13 Administration, 14 Defendant. 15
17 TO THE HONORABLE DOUGLAS L. RAYES, SENIOR UNITED STATES 18 DISTRICT JUDGE: 19 Pending before the Court is Sara Elise Ain’s (“Plaintiff”) appeal of the Social 20 Security Administration’s (“Social Security”) denial of her application for disability 21 insurance benefits. The Court has jurisdiction to decide Plaintiff’s appeal pursuant to 42 22 U.S.C. § 405(g). Under 42 U.S.C. § 405(g), the Court has the power to enter, based upon 23 the pleadings and transcript of the record, a judgment affirming, modifying, or reversing 24 the decision of the Commissioner of Social Security, with or without remanding the case 25 for a rehearing. 26 After reviewing the Administrative Record (“A.R.”) and the parties’ briefing (Docs. 27 19, 21, 22), the undersigned finds that the Administrative Law Judge’s (“ALJ”) decision 28 contains harmful legal error. For the reasons explained in Section II below, it is 1 recommended that the decision be reversed and the case remanded to the Commissioner of 2 Social Security for further proceedings. 3 I. LEGAL STANDARDS 4 A. Disability Analysis: Five-Step Evaluation 5 The Social Security Act (the “Act”) provides for disability insurance benefits to 6 those who have contributed to the Social Security program and who suffer from a physical 7 or mental disability. 42 U.S.C. § 423(a)(1). The Act also provides for supplemental security 8 income to certain individuals who are aged 65 or older, blind, or disabled and have limited 9 income. 42 U.S.C. § 1382. To be eligible for benefits based on an alleged disability, the 10 claimant must show that he or she suffers from a medically determinable physical or mental 11 impairment that prohibits him or her from engaging in any substantial gainful activity. 42 12 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 1382c(A)(3)(A). The claimant must also show that the 13 impairment is expected to cause death or last for a continuous period of at least 12 months. 14 Id. 15 To decide if a claimant is entitled to Social Security disability benefits, an ALJ 16 conducts an analysis consisting of five questions, which are considered in sequential steps. 17 20 C.F.R. §§ 404.1520(a), 416.920(a). The claimant has the burden of proof regarding the 18 first four steps:1 19 Step One: Is the claimant engaged in “substantial gainful 20 activity”? If so, the analysis ends and disability benefits are denied. Otherwise, the ALJ proceeds to step two. 21 Step Two: Does the claimant have a medically severe 22 impairment or combination of impairments? A severe 23 impairment is one which significantly limits the claimant’s 24 physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does not have a 25 severe impairment or combination of impairments, disability 26 27
28 1 Parra v. Astrue, 481 F.3d 742,746 (9th Cir. 2007). 1 benefits are denied at this step. Otherwise, the ALJ proceeds 2 to step three. 3 Step Three: Is the impairment equivalent to one of a number of listed impairments that the Commissioner acknowledges are 4 so severe as to preclude substantial gainful activity? 20 C.F.R. 5 §§ 404.1520(d), 416.920(d). If the impairment meets or equals 6 one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one that is 7 presumed to be disabling, the ALJ proceeds to the fourth step 8 of the analysis. 9 Step Four: Does the impairment prevent the claimant from 10 performing work which the claimant performed in the past? If 11 not, the claimant is “not disabled” and disability benefits are denied without continuing the analysis. 20 C.F.R. §§ 12 404.1520(f), 416.920(f). Otherwise, the ALJ proceeds to the 13 last step. 14 If the analysis proceeds to the final question, the burden of proof shifts to the 15 Commissioner:2 16 Step Five: Can the claimant perform other work in the national 17 economy in light of his or her age, education, and work experience? The claimant is entitled to disability benefits only 18 if he or she is unable to perform other work. 20 C.F.R. §§ 19 404.1520(g), 416.920(g). Social Security is responsible for providing evidence that demonstrates that other work exists in 20 significant numbers in the national economy that the claimant 21 can do, given the claimant’s residual functional capacity, age, education, and work experience. Id. 22 B. Standard of Review Applicable to ALJ’s Determination 23 The Court must affirm an ALJ’s decision if it is supported by substantial evidence 24 and is based on correct legal standards. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 25 2012); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). Although “substantial 26 evidence” is less than a preponderance, it is more than a “mere scintilla.” Richardson v. 27
28 2 Parra, 481 F.3d at 746. 1 Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 2 229 (1938)). It means such relevant evidence as a reasonable mind might accept as 3 adequate to support a conclusion. Id. 4 In determining whether substantial evidence supports the ALJ’s decision, the Court 5 considers the record as a whole, weighing both the evidence that supports and detracts from 6 the ALJ’s conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Tylitzki v. 7 Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). If there is sufficient evidence to support the 8 ALJ’s determination, the Court cannot substitute its own determination. See Morgan v. 9 Comm’r of the Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) (“Where the evidence 10 is susceptible to more than one rational interpretation, it is the ALJ’s conclusion that must 11 be upheld.”); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). This is because the 12 ALJ, not the Court, is responsible for resolving conflicts and ambiguities in the evidence 13 and determining credibility. Magallanes, 881 F.2d at 750; see also Andrews v. Shalala, 53 14 F.3d 1035, 1039 (9th Cir. 1995). 15 The Court also considers the harmless error doctrine when reviewing an ALJ’s 16 decision. This doctrine provides that an ALJ’s decision need not be remanded or reversed 17 if it is clear from the record that the error is “inconsequential to the ultimate nondisability 18 determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citations 19 omitted); Molina, 674 F.3d at 1115 (an error is harmless so long as there remains 20 substantial evidence supporting the ALJ’s decision and the error “does not negate the 21 validity of the ALJ’s ultimate conclusion”) (citations omitted). 22 II. PLAINTIFF’S APPEAL 23 A. Procedural Background 24 Plaintiff, who was born in 1984, has past relevant work as a systems analyst and end 25 user consultant. (A.R. 34, 35). In December 2020, Plaintiff protectively filed an application 26 for disability insurance benefits, alleging she became disabled on March 4, 2020 due to 27 reflex sympathetic dystrophy and traumatic brain injury. (A.R. 21, 1161, 1278). 28 1 Social Security denied Plaintiff’s application initially on August 3, 2021, and upon 2 reconsideration on March 18, 2022. (A.R. 1151, 1180). Plaintiff requested a hearing before 3 an ALJ. (A.R. 1202). An ALJ conducted a hearing on January 30, 2023. (A.R. 1127-50). 4 In his April 4, 2023 decision, the ALJ found that Plaintiff was not disabled within the 5 meaning of the Social Security Act. (A.R. 21-42). 6 Plaintiff requested review of the ALJ’s decision by the Appeals Council, which 7 denied her request on November 20, 2023, making the ALJ’s decision the final decision of 8 the Commissioner. (A.R. 1-7). On January 3, 2024, Plaintiff filed a Complaint (Doc. 1) 9 seeking judicial review and reversal of the ALJ’s decision. Plaintiff filed an Opening Brief 10 (Doc. 19) on May 20, 2024, and the Commissioner filed an Answering Brief (Doc. 21) on 11 June 13, 2024. Plaintiff filed a Reply Brief (Doc. 22) on June 21, 2024. 12 B. The ALJ’s Application of the Five-Step Disability Analysis 13 1. Step One: Engagement in “Substantial Gainful Activity” 14 The ALJ determined that Plaintiff has not engaged in substantial gainful activity 15 since March 4, 2020, the alleged onset date. (A.R. 23). Neither party disputes this 16 determination. 17 2. Step Two: Presence of Medically Severe Impairment/Combination of 18 Impairments 19 The ALJ found that Plaintiff has the following severe impairments: traumatic brain 20 injury/post-concussive syndrome; anxiety; depression; obesity; type-2 diabetes mellitus 21 with hyperglycemia; post-procedural hypothyroidism; and complex regional pain 22 syndrome (“CRPS”). (A.R. 23). This determination is undisputed. 23 3. Step Three: Presence of Listed Impairment(s) 24 The ALJ determined that Plaintiff does not have an impairment or combination of 25 impairments that meets or medically equals an impairment listed in 20 C.F.R. Part 404, 26 Subpart P, Appendix 1 of the Social Security regulations. (A.R. 24). Neither party disputes 27 the ALJ’s determination at this step. 28 1 4. Steps Four and Five: Capacity to Perform Work 2 The ALJ found that Plaintiff has the residual functional capacity (“RFC”) to perform 3 light work as defined in 20 C.F.R. § 404.1567(b) with the following limitations: 4 She is able to sit for a total of eight hours in an eight-hour workday. She is able to push and/or pull without limit other 5 than as shown for lift and/or carry. She can occasionally climb 6 ramps/stairs, balance, stoop, kneel, crouch, and crawl. This individual is able to occasionally climb ladders, ropes, or 7 scaffolds. She must avoid concentrated exposure to extreme 8 cold and extreme heat. This individual cannot work around hazards, such as dangerous moving machinery and unprotected 9 heights. She is limited to simple and repetitive tasks. She can 10 understand, remember, and follow one to two-step instructions. She can have frequent contact with coworkers, supervisors, 11 and the general public. 12 (A.R. 26). The ALJ found that Plaintiff is unable to perform her past relevant work as a 13 systems analyst or end user consultant. (A.R. 34). However, based on the assessed RFC, 14 Plaintiff’s age, education, work experience, and the VE’s testimony, the ALJ determined 15 that Plaintiff can perform other jobs existing in significant numbers in the national 16 economy, such as cleaner and advertising materials distributor. (A.R. 35). Therefore, the 17 ALJ concluded that Plaintiff is not disabled. (A.R. 36). Plaintiff argues that the ALJ 18 committed reversible error by rejecting her treating mental health provider’s opinions and 19 her symptom testimony without sufficient explanation. (Doc. 19 at 15-24). 20 C. The ALJ’s Evaluation of the Medical Source Opinions 21 1. Legal Standards 22 For disability claims filed after March 27, 2017, revised Social Security 23 Administration regulations apply to the ALJ’s consideration of the medical evidence. See 24 Revisions to Rules Regarding the Evaluation of Medical Evidence (Revisions), 82 Fed. 25 Reg. 5844-01, 2017 WL 168819, at *5844 (Jan. 18, 2017). The revised regulations provide 26 that Social Security “will not defer or give any specific evidentiary weight, including 27 controlling weight, to any medical opinion(s) or prior administrative medical finding(s), 28 including those from [the claimant’s own] medical sources.” 20 C.F.R. § 404.1520c(a). 1 Thus, the new regulations require an ALJ to apply the same factors to all medical sources 2 when considering medical opinions. As the Ninth Circuit has explained, the revised Social 3 Security regulations abrogate prior precedents requiring an ALJ to provide “specific and 4 legitimate reasons supported by substantial evidence in the record” for rejecting the opinion 5 of a treating physician. Woods v. Kijakazi, 32 F.4th 785, 788-92 (9th Cir. 2022). 6 Instead, “[w]hen a medical source provides one or more medical opinions or prior 7 administrative medical findings, [Social Security] will consider those medical opinions or 8 prior administrative medical findings from that medical source together using” the 9 following factors: (i) supportability; (ii) consistency; (iii) relationship with the claimant; 10 (iv) specialization; and (v) other factors that “tend to support or contradict a medical 11 opinion or prior administrative medical finding.” 20 C.F.R. § 404.1520c(a), (c)(1)-(5). As 12 set forth in Section 404.1520c(a), the “most important factors” Social Security considers 13 when evaluating “the persuasiveness of medical opinions and prior administrative medical 14 findings are supportability . . . and consistency[.]” 15 Regarding the supportability factor, the regulations provide that the “more relevant 16 the objective medical evidence and supporting explanations presented by a medical source 17 are to support his or her medical opinion(s), the more persuasive the medical opinions . . . 18 will be.” 20 C.F.R. § 404.1520c(c)(1). As to the consistency factor, the “more consistent 19 a medical opinion(s) is with the evidence from other medical sources and nonmedical 20 sources in the claim, the more persuasive the medical opinion(s) . . . will be.” 20 C.F.R. § 21 404.1520c(c)(2). 22 Section 404.1520c(b)(2) provides that Social Security “will explain how we 23 considered the supportability and consistency factors for a medical source’s medical 24 opinions or prior administrative medical findings in your determination or decision.” 25 Social Security “may, but [is] not required to, explain how [it] considered the [other 26 remaining factors],” except when deciding among differing yet equally persuasive opinions 27 or findings on the same issue. 20 C.F.R. § 404.1520c(b)(2)-(3). Further, Social Security is 28 “not required to articulate how [it] considered evidence from nonmedical sources.” 20 1 C.F.R. § 404.1520c(d). 2 2. Opinions of Wendy Aragaki, PMHNP-BC 3 Wendy Aragaki, PMHNP-BC (“NP Aragaki”) is Plaintiff’s treating mental health 4 provider. On January 23, 2023, NP Aragaki completed a Medical Opinion Re: Ability To 5 Do Work-Related Activities (Mental). (AR 2420-23). In this assessment, NP Aragaki 6 opined that Plaintiff has “poor or none” ability to (i) maintain attention for two-hour 7 segments; (ii) maintain regular attendance and punctuality; (iii) work in coordination with 8 others or proximity to others without being unduly distracted; (iv) complete a normal 9 workday and workweek without interruptions from psychologically based symptoms; (v) 10 perform at a consistent pace; and (vi) deal with normal work stressors. (AR 2420-22). NP 11 Aragaki noted that Plaintiff’s “[l]abile mood, chronic depression is often exacerbated by 12 [Plaintiff’s] chronic pain and fatigue,” which causes “difficulty” with concentration, 13 performance, and maintaining a “normal work pace.” (AR 2421). NP Aragaki also noted 14 that unfamiliar surroundings and unplanned events cause Plaintiff increased anxiety, 15 contributing to her continual isolation at home “and often just her room due to medical and 16 mental health deterioration.” (AR 2422). NP Aragaki estimated that Plaintiff could miss 17 more than three days of work per month as a result of her impairments and that eight-hour 18 workdays do not appear to be feasible as Plaintiff requires unscheduled breaks more than 19 three to four times per day. (AR 2423). 20 On January 23, 2023, NP Aragaki also completed a Mental Impairment 21 Questionnaire. (AR 2780-88). NP Aragaki noted Plaintiff’s diagnoses of major depressive 22 disorder, premenstrual dysphoric disorder (“PMDD”), and post-traumatic stress disorder 23 (“PTSD”) related to physical trauma, as well as diabetes mellitus, hypothyroidism, 24 insomnia, and complex regional pain syndrome. (AR 2780). She reported Plaintiff’s Global 25 Assessment of Functioning score for the past year as 55, and her current Global Assessment 26 of Functioning score as 58. (Id.). NP Aragaki noted that Plaintiff has experienced “marginal 27 improvement, slow progress with extended periods of therapy and continual medication 28 management for the past 1.5 years.” (Id.). NP Aragaki indicated Plaintiff experiences 1 numerous symptoms including depressed mood, “[d]iminished interest in almost all 2 activities,” appetite disturbance, sleep disturbance, decreased energy, feelings of guilt or 3 worthlessness, difficulty concentrating or thinking, thoughts of death or suicide, 4 restlessness, easy fatigability, irritability, muscle tension, and sleep disturbances. (AR 5 2782). She also assessed “marked” limitations in Plaintiff’s ability to concentrate, persist, 6 or maintain pace and in her ability to regulate emotions, control behavior, and maintain 7 well-being in a work setting. (AR 2783). NP Aragaki opined that Plaintiff’s psychiatric 8 conditions exacerbate her experience of pain and other physical symptoms. (AR 2784). She 9 estimated that Plaintiff would likely be absent from work approximately three days per 10 month due to her impairments and “possibly 4 or more.” (AR 2785). 11 The ALJ found NP Aragaki’s opinions unpersuasive, noting that they are in a 12 “checklist form” and stating they are “not consistent with record or supported by Nurse 13 Aragaki’s treatment history with the claimant.” (A.R. 33). The ALJ noted that throughout 14 the record, Plaintiff’s “memory appeared to be good,” she “appeared to function in the 15 average range of intelligence,” had good insight and judgment, and engaged in daily 16 activities like reading, doing chores, and playing video games. (Id.). The ALJ also stated 17 that NP Aragaki’s treatment notes showed that Plaintiff’s mental status examinations were 18 “largely unremarkable,” recounting observations that Plaintiff was dressed/groomed 19 appropriately, alert, and had normal speech quantity. (Id.). 20 It is the ALJ’s burden to explain how he or she “considered the medical opinion’s 21 supportability and consistency in a manner grounded in substantial evidence.” Mascarenas 22 v. Comm’r of Soc. Sec. Admin., No. CV-21-00641-PHX-SPL, 2022 WL 2448279, at *5 (D. 23 Ariz. July 6, 2022) (citing Woods, 32 F.4th at 792); see also 20 C.F.R. §§ 404.1520c(b), 24 (c). “Even under the new regulations, an ALJ cannot reject an examining or treating 25 doctor’s opinion as unsupported or inconsistent without providing an explanation 26 supported by substantial evidence.” Woods, 32 F.4th at 792. An ALJ must “articulate . . . 27 how persuasive” he or she finds “all of the medical opinions,” 20 C.F.R. § 404.1520c(b), 28 1 and “explain how [he or she] considered the supportability and consistency factor” in 2 making those findings, 20 C.F.R. § 404.1520c(b)(2). 3 The undersigned concurs with Plaintiff that the ALJ’s analysis fails to adequately 4 address the supportability of NP Aragaki’s opinions. (Doc. 19 at 18). The Commissioner 5 argues that the presentation of NP Aragaki’s opinions in a checkbox format renders the 6 opinions of “little evidentiary value.” (Doc. 21 at 4). The Ninth Circuit has clarified that 7 “[a]n ALJ is not required to take medical opinions at face value, but may take into account 8 the quality of the explanation when determining how much weight to give a medical 9 opinion.” Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020). Although an opinion cannot 10 be rejected merely for being expressed as answers to a checkbox questionnaire, “the ALJ 11 may permissibly reject check-off reports that do not contain any explanation of the bases 12 of their conclusions.” Id. (emphasis added; citations and internal quotation marks omitted). 13 Here, unlike the opinions at issue in Ford, NP Aragaki did not rely solely on a checkbox 14 format but also provided narrative explanations and clinical findings to support her 15 assessed limitations. (A.R. 2422, 2780-81, 2784, 2786-87). The undersigned does not find 16 the fact that many of NP Aragaki’s opinions were provided in a checkbox format alone 17 justifies discounting the opinions. The ALJ did not sufficiently explain how the cited 18 normal findings, such as good memory, intelligence, grooming, and speech, undermine the 19 specific limitations NP Aragaki assessed. By focusing on a few normal observations 20 without comprehensively addressing the objective medical evidence and NP Aragaki’s 21 own treatment notes that could corroborate or detract from her assessed limitations, the 22 ALJ’s decision lacks a sufficient analysis of the supportability factor.3 (Doc. 19 at 18). 23 For the above reasons, the undersigned agrees with Plaintiff that the ALJ provided 24 legally insufficient reasons for finding NP Aragaki’s opinions unpersuasive. This error is 25 harmful and requires remand. 26
27 28 3 Plaintiff does not assert that the ALJ failed to sufficiently address the consistency factor. 1 D. The ALJ’s Decision Fails to Sufficiently Evaluate Plaintiff’s Symptom Testimony 2 When evaluating a claimant’s testimony regarding subjective pain or symptoms, the 3 ALJ must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 4 2009). In the first step, the ALJ must determine whether the claimant has presented 5 objective medical evidence of an underlying impairment “which could reasonably be 6 expected to produce the pain or other symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 7 1028, 1036 (9th Cir. 2007). The claimant does not have to show that the impairment could 8 reasonably be expected to cause the severity of the symptoms. Rather, a claimant must 9 only show that it could have caused some degree of the symptoms. Smolen v. Chater, 80 10 F.3d 1273, 1282 (9th Cir. 1996). 11 If a claimant meets the first step, and there is no evidence of malingering, the ALJ 12 can only reject a claimant’s testimony about the severity of his or her symptoms by offering 13 clear and convincing reasons that are supported by substantial evidence in the record. 14 Lingenfelter, 504 F.3d at 1036. In evaluating a claimant’s symptom testimony, the ALJ 15 can consider many factors including: a claimant’s reputation for truthfulness, prior 16 inconsistent statements concerning the symptoms, unexplained or inadequately explained 17 failure to seek treatment, and the claimant’s daily activities. Smolen, 80 F.3d at 1284; see 18 also 20 C.F.R. § 416.929(c)(4) (Social Security must consider whether there are conflicts 19 between a claimant’s statements and the rest of the evidence). In addition, although the 20 lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a 21 factor that the ALJ can consider in evaluating the testimony. Burch v. Barnhart, 400 F.3d 22 676 (9th Cir. 2005); see also 20 C.F.R. § 416.929(c); Rollins v. Massanari, 261 F.3d 853, 23 857 (9th Cir. 2001). 24 Plaintiff testified that she has complex regional pain syndrome and plantar fasciitis 25 in both feet, which causes her to feel like there are “cinderblock bricks stacking and 26 pressing [her] feet together.” (A.R. 1135). She explained that this foot pain makes it 27 difficult for her “to get around and be ambulatory because the pain is both on the bottom 28 1 of [her] feet as well as the top, around the toes.” (Id.). She stated that she can only wear 2 flip-flops or other open-toed shoes due to chronic pain and sensitivity in her toes. (A.R. 3 1142). Plaintiff estimated that she must elevate her legs twenty minutes every hour. (A.R. 4 1143). Plaintiff also testified that she suffered a traumatic brain injury with post-concussive 5 syndrome “that has caused impulsive behaviors, unreliable memory, cognitive fatigue, as 6 well as unreliable sense of self.” (Id.). 7 The ALJ discounted Plaintiff’s symptom testimony as inconsistent with the overall 8 record, which the ALJ characterized as showing “conservative treatment, [ ] largely 9 unremarkable consultative examinations, and routinely intact examination findings.” (A.R. 10 28). However, as Plaintiff argues, this characterization does not fairly represent the record. 11 (Doc. 19 at 21-23). Plaintiff’s treating providers diagnosed her with complex regional pain 12 syndrome, diabetic neuropathy, peripheral vascular disease, and noted findings such as 13 fatigue, joint and muscle pain, cold intolerance, and tenderness and hypersensitivity in her 14 feet. (A.R. 1573, 2153, 2791, 2796-97). Consultative examiner Erica Neal, P.A. observed 15 reduced strength in Plaintiff’s upper and lower extremities and tenderness to palpation, and 16 assessed Plaintiff as having complex regional pain syndrome, depression, anxiety, and a 17 history of traumatic brain injury. (A.R. 2155-56). Psychological consultative examiner M. 18 David McGady, Psy.D. noted that Plaintiff displayed “typical pain behaviors, including 19 grimacing, groaning, and muscle stiffness.” (A.R. 2394). Dr. McGady noted that it “did 20 not appear as if [Plaintiff’s] symptoms were exaggerated or feigned.” (A.R. 2395). 21 Treating provider NP Valerie Ziske reported that Plaintiff has “constant burning” and 22 throbbing foot pain worsened by walking, driving, cold weather, and stress. (A.R. 2828). 23 The Court cannot affirm an ALJ’s decision on a ground not asserted by the ALJ. 24 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). Here, the ALJ’s summary 25 rejection of Plaintiff’s symptom testimony as inconsistent with “conservative treatment” 26 and “largely unremarkable” findings, without further explanation, requires the Court to 27 speculate as to how the cited evidence undermines Plaintiff’s allegations. See id. at 494; 28 Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (“The ALJ must state specifically 1 which symptom testimony is not credible and what facts in the record lead to that 2 conclusion.”). The Ninth Circuit has “repeatedly warned that ALJs must be especially 3 cautious in concluding that daily activities are inconsistent with testimony about pain, 4 because impairments that would unquestionably preclude work and all the pressures of a 5 workplace environment will often be consistent with doing more than merely resting in bed 6 all day.” Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014). 7 “The clear and convincing standard is the most demanding required 8 in Social Security cases.” Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th 9 Cir. 2002). “Sheer disbelief” of the severity of a claimant’s symptoms “is no substitute for 10 substantial evidence.” Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004). The 11 undersigned finds that the ALJ’s failure to provide specific, clear, and convincing reasons 12 for discounting Plaintiff’s symptom testimony constitutes harmful error and requires 13 remand. 14 E. Recommended Remand for Further Proceedings 15 Ninth Circuit jurisprudence “requires remand for further proceedings in all but the 16 rarest cases.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 n.5 (9th Cir. 17 2014). The Ninth Circuit, however, has adopted a test to determine when a case should be 18 remanded for payment of benefits in cases where an ALJ has improperly rejected claimant 19 testimony or medical opinion evidence. Id. at 1100-01; Garrison, 759 F.3d at 1020. This 20 test is commonly referred to as the “credit-as-true” rule, which consists of the following 21 three factors: 22 1. Has the ALJ failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical 23 opinion? Treichler, 775 F.3d at 1100-01. 24 2. Has the record been fully developed, are there outstanding 25 issues that must be resolved before a disability determination 26 can be made, or would further administrative proceedings be useful? Id. at 1101. To clarify this factor, the Ninth Circuit 27 has stated that “[w]here there is conflicting evidence, and not 28 all essential factual issues have been resolved, a remand for an award of benefits is inappropriate.” Id. 1 3. If the improperly discredited evidence were credited as true, 2 would the ALJ be required to find the claimant disabled on 3 remand? Id.; Garrison, 759 F.3d at 1020. 4 Where a court has found that a claimant has failed to satisfy one of the factors of the 5 credit-as-true rule, the court does not need to address the remaining factors. Treichler, 775 6 F.3d at 1107 (declining to address final step of the rule after determining that the claimant 7 has failed to satisfy the second step). Moreover, even if all three factors are met, a court 8 retains the discretion to remand a case for additional evidence or to award benefits. Id. at 9 1101-02. A court may remand for further proceedings “when the record as a whole creates 10 serious doubt as to whether the claimant is, in fact, disabled within the meaning of the 11 Social Security Act.” Garrison, 759 F.3d at 1021. In Treichler, the Ninth Circuit noted 12 that “[w]here an ALJ makes a legal error, but the record is uncertain and ambiguous, the 13 proper approach is to remand the case to the agency.” 775 F.3d at 1105. 14 Rather than seeking an immediate award of benefits, Plaintiff requests that the Court 15 remand this matter for further administrative proceedings. (Doc. 19 at 24; Doc. 22 at 7). 16 After reviewing the record, the undersigned finds that remand for further proceedings is 17 the appropriate remedy in this case. While the record contains evidence supporting 18 Plaintiff’s claim of disability, including her subjective complaints of severe foot pain and 19 complex regional pain syndrome (see e.g., AR 709, 712, 1134-1136, 2785, 2828), there is 20 conflicting evidence that casts serious doubt on whether Plaintiff is in fact disabled. For 21 example, examination findings frequently showed normal or only mildly limited range of 22 motion, tenderness, and hypersensitivity, with normal motor strength, and no swelling or 23 atrophy (see e.g., AR 2039, 2055-2057, 2156, 2797, 2170). The ALJ also noted that, 24 despite her allegations, there was no record of a treating source prescribing an assistive 25 device for ambulation or requiring continuous elevation of her legs. (AR 29). 26 Given the inconsistencies and ambiguities in the record, the undersigned 27 recommends that the Court remand this matter for further proceedings. See Treichler, 775 28 | F.3d at 1105 (noting that where “an ALJ makes a legal error, but the record is uncertain and ambiguous, the proper approach is to remand the case to the agency”). 3 III. CONCLUSION 4 Based on the foregoing, 5 IT IS RECOMMENDED that the Court reverse the Administrative Law Judge’s 6 April 4, 2023 decision (A.R. 21-42), as upheld by the Appeals Council (A.R. 1-7). 7 IT IS FURTHER RECOMMENDED that the Court remand this case to the Social 8 Security Administration for further proceedings. ? This Report and Recommendation is not an order that is immediately appealable to 10 the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. M 4(a)(1) should not be filed until entry of the District Court’s judgment. The parties shall 12 have fourteen days from the date of service of a copy of this Report and Recommendation 13 within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Thereafter, the parties have fourteen days within which to file a 1S response to the objections. Failure to file timely objections to the Magistrate Judge’s 16 Report and Recommendation may result in the acceptance of the Report and M Recommendation by the District Court without further review. See United States vy. Reyna- 18 Tapia, 328 F.3d 1114, 1121 (th Cir. 2003). Failure to file timely objections to any factual 19 determinations of the Magistrate Judge may be considered a waiver of a party’s right to 20 appellate review of the findings of fact in an order or judgment entered pursuant to the 71 Magistrate Judge’s recommendation. See Fed. R. Civ. P. 72. 22 Dated this 27th day of September, 2024. . 23 é 24 Ga )tewt— 25 United States Magistrate Judge 26 27 28
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