1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Lauren N Ainsworth, No. CV-23-08625-PCT-DWL
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 This is a Social Security appeal. On December 21, 2023, the Court referred the 16 matter to Magistrate Judge Fine for the preparation of a report and recommendation 17 (“R&R”) as to the final disposition. (Doc. 12.) On June 5, 2024, Judge Fine issued an 18 R&R concluding that the ALJ’s decision should be reversed and that the matter should be 19 remanded for further proceedings. (Doc. 22.) Afterward, Plaintiff filed timely objections 20 to the R&R, arguing that the proper remedy is a remand for calculation of benefits. (Doc. 21 23.) The Commissioner, in turn, filed a reply arguing that the R&R should be affirmed. 22 (Doc. 24.) 23 For the following reasons, Plaintiff’s objections are overruled, the R&R is adopted, 24 and this matter is remanded for further proceedings. 25 DISCUSSION 26 I. Legal Standard 27 Under 28 U.S.C. § 636(b)(1)(B), a district judge may “designate a magistrate judge 28 to . . . submit to a judge of the court proposed findings of fact and recommendations for 1 the disposition” of a dispositive matter. Id. 2 “Within fourteen days after being served with a copy [of the R&R], any party may 3 serve and file written objections . . . as provided by rules of court. A judge of the court 4 shall make a de novo determination of those portions of the report or specified proposed 5 findings or recommendations to which objection is made. A judge of the court may accept, 6 reject, or modify, in whole or in part, the findings or recommendations made by the 7 magistrate judge. The judge may also receive further evidence or recommit the matter to 8 the magistrate judge with instructions.” Id. § 636(b)(1). See also Fed. R. Civ. P. 72(b)(2)- 9 (3) (same). 10 “In providing for a de novo determination . . . Congress intended to permit whatever 11 reliance a district judge, in the exercise of sound judicial discretion, chose to place on a 12 magistrate’s proposed findings and recommendations. . . . [D]istrict courts conduct proper 13 de novo review where they state they have done so, even if the order fails to specifically 14 address a party’s objections.” United States v. Ramos, 65 F.4th 427, 433 (9th Cir. 2023) 15 (citations and internal quotation marks omitted). See also id. at 434 (“[T]he district court 16 ha[s] no obligation to provide individualized analysis of each objection.”). 17 Additionally, district courts are not required to review any portion of an R&R to 18 which no specific objection has been made. See, e.g., Thomas v. Arn, 474 U.S. 140, 149- 19 50 (1985) (“It does not appear that Congress intended to require district court review of a 20 magistrate’s factual or legal conclusions, under a de novo or any other standard, when 21 neither party objects to those findings.”); United States v. Reyna-Tapia, 328 F.3d 1114, 22 1121 (9th Cir. 2003) (“[T]he district judge must review the magistrate judge’s findings and 23 recommendations de novo if objection is made, but not otherwise.”). Thus, district judges 24 need not review an objection to an R&R that is general and non-specific. See, e.g., Warling 25 v. Ryan, 2013 WL 5276367, *2 (D. Ariz. 2013); Haley v. Stewart, 2006 WL 1980649, *2 26 (D. Ariz. 2006). 27 … 28 … 1 II. Relevant Background 2 A. The ALJ’s Decision 3 In the underlying decision, the ALJ acknowledged that Plaintiff had the severe 4 impairments of “multiple sclerosis (MS); headaches; obesity; neuropathy; Lyme Disease.” 5 (AR at 27.) 6 When formulating Plaintiff’s RFC, the ALJ declined to fully credit Plaintiff’s 7 symptom testimony. (Id. at 30-33.) The ALJ also evaluated the opinions of an array of 8 medical sources. (Id. at 33-37.) Many of those sources offered opinions that were 9 inconsistent with Plaintiff’s claim of disability. For example, one consultative examiner 10 (Dr. Gordon) opined that Plaintiff’s physical “conditions do not result in any functional 11 restrictions”; another consultative examiner (Ana Symond, PA) opined that Plaintiff 12 “would not have any related physical restrictions lasting 12 continuous months”; a state 13 agency mental health consultant (Dr. Franco) “found no evidence of any medically 14 determinable mental impairments”; another state agency mental health consultant (Dr. 15 Friedland) “reviewed the medical evidence on redetermination and found [Plaintiff’s] 16 mental impairments nonsevere”; and yet another consultative examiner (Dr. Gill) “opined 17 [Plaintiff] did not have any mental limitations lasting 12 continuous months.” (Id. at 34- 18 35.) Although the ALJ concluded that some of those opinions were only “partially 19 persuasive,” the ALJ deemed the opinions of both Dr. Friedland and Dr. Gill “persuasive.” 20 (Id.) The ALJ also evaluated the more-restrictive opinions of two of Plaintiff’s treating 21 providers, Dr. Grout and Dr. Malczak, but deemed their opinions “not persuasive” for 22 various reasons. (Id. at 35-36.) 23 B. Plaintiff’s Appeal 24 In her opening brief, Plaintiff raised two assignments of error: (1) the ALJ provided 25 insufficient reasons for discrediting the opinions of Dr. Malczak; and (2) the ALJ provided 26 insufficient reasons for discrediting her symptom testimony. (Doc. 18 at 1.) The 27 Commissioner, in turn, “concede[d] the ALJ erred in analyzing whether the opinion of Paul 28 Malczak, D.O., was persuasive” but argued that the proper remedy was a remand for 1 calculation of benefits because “further proceedings are needed for the ALJ to re-evaluate 2 the persuasiveness of this and other assessed limitations in Dr. Malczak’s opinion in 3 comparison with the record and determine if any changes are warranted to the RFC.” (Doc. 4 20 at 5-6.) 5 C. The R&R 6 Judge Fine accepted the Commissioner’s concession of error concerning Dr. 7 Malczak (Doc. 22 at 5-9) and also concluded that “the ALJ did not provide sufficient clear 8 and convincing reasons supported by substantial evidence to discount Plaintiff’s 9 testimony” (id. at 9-21). 10 As for the scope of remand, Judge Fine concluded that the credit-as-true rule was 11 inapplicable, and that the remand should be for further proceedings, because “[a]lthough 12 the ALJ failed to give legally sufficient reasons to reject Dr. Malczak’s opinion, further 13 administrative proceedings would be useful to resolve ambiguities and conflicts. Notably, 14 Dr. Malczak opined greater limitations than the state agency consultants and consultative 15 examiners whose opinions the ALJ found partially or fully persuasive, and whose opinions 16 were incorporated into Plaintiff’s RFC. Given the conflicts amidst these opinions, as well 17 as the ALJ’s departure from Dr. Malczak’s opined limitations in formulating Plaintiff’s 18 RFC, remand for further proceedings is appropriate.” (Id. at 22-23.) Judge Fine continued: 19 Remand for further proceedings is also appropriate regarding Plaintiff’s 20 symptom testimony. Although the ALJ failed to provide legally sufficient reasons to discount Plaintiff’s symptom testimony, further administrative 21 proceedings would also be useful to resolve conflicts between Plaintiff’s 22 symptom testimony and the evidence of record.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Lauren N Ainsworth, No. CV-23-08625-PCT-DWL
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 This is a Social Security appeal. On December 21, 2023, the Court referred the 16 matter to Magistrate Judge Fine for the preparation of a report and recommendation 17 (“R&R”) as to the final disposition. (Doc. 12.) On June 5, 2024, Judge Fine issued an 18 R&R concluding that the ALJ’s decision should be reversed and that the matter should be 19 remanded for further proceedings. (Doc. 22.) Afterward, Plaintiff filed timely objections 20 to the R&R, arguing that the proper remedy is a remand for calculation of benefits. (Doc. 21 23.) The Commissioner, in turn, filed a reply arguing that the R&R should be affirmed. 22 (Doc. 24.) 23 For the following reasons, Plaintiff’s objections are overruled, the R&R is adopted, 24 and this matter is remanded for further proceedings. 25 DISCUSSION 26 I. Legal Standard 27 Under 28 U.S.C. § 636(b)(1)(B), a district judge may “designate a magistrate judge 28 to . . . submit to a judge of the court proposed findings of fact and recommendations for 1 the disposition” of a dispositive matter. Id. 2 “Within fourteen days after being served with a copy [of the R&R], any party may 3 serve and file written objections . . . as provided by rules of court. A judge of the court 4 shall make a de novo determination of those portions of the report or specified proposed 5 findings or recommendations to which objection is made. A judge of the court may accept, 6 reject, or modify, in whole or in part, the findings or recommendations made by the 7 magistrate judge. The judge may also receive further evidence or recommit the matter to 8 the magistrate judge with instructions.” Id. § 636(b)(1). See also Fed. R. Civ. P. 72(b)(2)- 9 (3) (same). 10 “In providing for a de novo determination . . . Congress intended to permit whatever 11 reliance a district judge, in the exercise of sound judicial discretion, chose to place on a 12 magistrate’s proposed findings and recommendations. . . . [D]istrict courts conduct proper 13 de novo review where they state they have done so, even if the order fails to specifically 14 address a party’s objections.” United States v. Ramos, 65 F.4th 427, 433 (9th Cir. 2023) 15 (citations and internal quotation marks omitted). See also id. at 434 (“[T]he district court 16 ha[s] no obligation to provide individualized analysis of each objection.”). 17 Additionally, district courts are not required to review any portion of an R&R to 18 which no specific objection has been made. See, e.g., Thomas v. Arn, 474 U.S. 140, 149- 19 50 (1985) (“It does not appear that Congress intended to require district court review of a 20 magistrate’s factual or legal conclusions, under a de novo or any other standard, when 21 neither party objects to those findings.”); United States v. Reyna-Tapia, 328 F.3d 1114, 22 1121 (9th Cir. 2003) (“[T]he district judge must review the magistrate judge’s findings and 23 recommendations de novo if objection is made, but not otherwise.”). Thus, district judges 24 need not review an objection to an R&R that is general and non-specific. See, e.g., Warling 25 v. Ryan, 2013 WL 5276367, *2 (D. Ariz. 2013); Haley v. Stewart, 2006 WL 1980649, *2 26 (D. Ariz. 2006). 27 … 28 … 1 II. Relevant Background 2 A. The ALJ’s Decision 3 In the underlying decision, the ALJ acknowledged that Plaintiff had the severe 4 impairments of “multiple sclerosis (MS); headaches; obesity; neuropathy; Lyme Disease.” 5 (AR at 27.) 6 When formulating Plaintiff’s RFC, the ALJ declined to fully credit Plaintiff’s 7 symptom testimony. (Id. at 30-33.) The ALJ also evaluated the opinions of an array of 8 medical sources. (Id. at 33-37.) Many of those sources offered opinions that were 9 inconsistent with Plaintiff’s claim of disability. For example, one consultative examiner 10 (Dr. Gordon) opined that Plaintiff’s physical “conditions do not result in any functional 11 restrictions”; another consultative examiner (Ana Symond, PA) opined that Plaintiff 12 “would not have any related physical restrictions lasting 12 continuous months”; a state 13 agency mental health consultant (Dr. Franco) “found no evidence of any medically 14 determinable mental impairments”; another state agency mental health consultant (Dr. 15 Friedland) “reviewed the medical evidence on redetermination and found [Plaintiff’s] 16 mental impairments nonsevere”; and yet another consultative examiner (Dr. Gill) “opined 17 [Plaintiff] did not have any mental limitations lasting 12 continuous months.” (Id. at 34- 18 35.) Although the ALJ concluded that some of those opinions were only “partially 19 persuasive,” the ALJ deemed the opinions of both Dr. Friedland and Dr. Gill “persuasive.” 20 (Id.) The ALJ also evaluated the more-restrictive opinions of two of Plaintiff’s treating 21 providers, Dr. Grout and Dr. Malczak, but deemed their opinions “not persuasive” for 22 various reasons. (Id. at 35-36.) 23 B. Plaintiff’s Appeal 24 In her opening brief, Plaintiff raised two assignments of error: (1) the ALJ provided 25 insufficient reasons for discrediting the opinions of Dr. Malczak; and (2) the ALJ provided 26 insufficient reasons for discrediting her symptom testimony. (Doc. 18 at 1.) The 27 Commissioner, in turn, “concede[d] the ALJ erred in analyzing whether the opinion of Paul 28 Malczak, D.O., was persuasive” but argued that the proper remedy was a remand for 1 calculation of benefits because “further proceedings are needed for the ALJ to re-evaluate 2 the persuasiveness of this and other assessed limitations in Dr. Malczak’s opinion in 3 comparison with the record and determine if any changes are warranted to the RFC.” (Doc. 4 20 at 5-6.) 5 C. The R&R 6 Judge Fine accepted the Commissioner’s concession of error concerning Dr. 7 Malczak (Doc. 22 at 5-9) and also concluded that “the ALJ did not provide sufficient clear 8 and convincing reasons supported by substantial evidence to discount Plaintiff’s 9 testimony” (id. at 9-21). 10 As for the scope of remand, Judge Fine concluded that the credit-as-true rule was 11 inapplicable, and that the remand should be for further proceedings, because “[a]lthough 12 the ALJ failed to give legally sufficient reasons to reject Dr. Malczak’s opinion, further 13 administrative proceedings would be useful to resolve ambiguities and conflicts. Notably, 14 Dr. Malczak opined greater limitations than the state agency consultants and consultative 15 examiners whose opinions the ALJ found partially or fully persuasive, and whose opinions 16 were incorporated into Plaintiff’s RFC. Given the conflicts amidst these opinions, as well 17 as the ALJ’s departure from Dr. Malczak’s opined limitations in formulating Plaintiff’s 18 RFC, remand for further proceedings is appropriate.” (Id. at 22-23.) Judge Fine continued: 19 Remand for further proceedings is also appropriate regarding Plaintiff’s 20 symptom testimony. Although the ALJ failed to provide legally sufficient reasons to discount Plaintiff’s symptom testimony, further administrative 21 proceedings would also be useful to resolve conflicts between Plaintiff’s 22 symptom testimony and the evidence of record. For instance, at Plaintiff’s 2019 consultative exam, Plaintiff denied significant impacts on her activities 23 of daily living; could stand, walk to, and get onto the exam table without assistance or difficulty; demonstrated appropriate balance and normal gait; 24 had normal strength and tone in her arms, legs, and grip; and had no apparent 25 difficulty with fine motor skills. At Plaintiff’s 2020 consultative exam, Plaintiff again denied significant impacts on her daily activities; had no 26 difficulty transferring to the exam table; had appropriate balance; had normal 27 strength, tone, and grip, aside from 4/5 strength in the left leg; and only had some difficulty screwing a nut onto a bolt with her left hand. The 28 consultative exam findings are contrary to Plaintiff’s function report and 1 hearing testimony regarding vertigo, difficulty walking straight, poor balance, limited use of her hands, and decreased motor skills. Various 2 treating providers also observed normal motor strength and sensation, aside 3 from occasional decreased strength in the hands and the upper arms and some decreased sensation in the feet and left face. Given these conflicts, doubt 4 remains as to whether Plaintiff is disabled, and the Court retains discretion 5 to remand for further proceedings. 6 (Id. at 23.) 7 D. Plaintiff’s Objections 8 Plaintiff objects to the R&R’s recommended remedy of a remand for further 9 proceedings, arguing that the Court should instead remand for calculation of benefits. 10 (Doc. 23.) According to Plaintiff, “[t]he R&R’s purported conflicts do not amount to 11 significant factual conflicts to support remanding for further proceedings over remand for 12 calculation of benefits.” (Id. at 5.) More specifically, Plaintiff first argues that “conflicting 13 medical opinions exist in every Social Security case and if the mere existence of conflicting 14 medical opinions amounted to a significant factual conflict there would be no cases where 15 the Court remanded for an immediate calculation of benefits, which is simply not the state 16 of case outcomes in the Ninth Circuit.” (Id. at 6.) As for her symptom testimony, Plaintiff 17 offers various explanations for the purported discrepancies identified in the R&R. (Id. at 18 6-7.) 19 In response, the Commissioner argues that the proper remedy, as noted in the R&R, 20 is a remand for further proceedings. (Doc. 24.) More specifically, the Commissioner 21 argues that “[c]ontrary to Plaintiff’s arguments, the R&R identified significant factual 22 conflicts between Plaintiff’s testimony and the record” and that “Plaintiff’s contention that 23 conflicts between medical opinions exist in ‘every’ Social Security case fails to 24 acknowledge the Magistrate Judge’s specific finding that not only did a conflict exist 25 between the opinion of Paul Malczak, D.O., and the State agency medical consultants and 26 consultative examiners, the ALJ’s RFC departed from Dr. Malczak’s opined limitations, 27 which made further proceedings appropriate.” (Id. at 4-5.) The Commissioner also argues 28 that Plaintiff’s attempts to discount the opinions of non-treating medical sources are 1 contrary to the new SSA regulations promulgated in 2017. (Id. at 5.) 2 III. Analysis 3 Having conducted the required de novo review, the Court agrees with Judge Fine 4 that the proper remedy here is a remand for further proceedings. “The credit-as-true 5 analysis has evolved in our circuit over time, thus providing a challenge for application by 6 the district court.” Leon v. Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2017). As the Ninth 7 Circuit has clarified in recent opinions, “[a]n automatic award of benefits in a disability 8 benefits case is a rare and prophylactic exception to the well-established ordinary remand 9 rule.” Id. See also Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 n.5 (9th 10 Cir. 2014) (“[O]ur jurisprudence . . . requires remand for further proceedings in all but the 11 rarest cases.”). 12 On the merits, “[t]he credit-as-true rule has three steps. First, we ask whether the 13 ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether 14 claimant testimony or medical opinion. Second, we determine whether the record has been 15 fully developed, whether there are outstanding issues that must be resolved before a 16 determination of disability can be made, and whether further administrative proceedings 17 would be useful. And third, if no outstanding issues remain and further proceedings would 18 not be useful, only then do we have discretion to find the relevant testimony credible as a 19 matter of law. Even if all three steps are met, the decision whether to remand a case for 20 additional evidence or simply to award benefits is in our discretion.” Washington v. 21 Kijakazi, 72 F.4th 1029, 1041 (9th Cir. 2023) (cleaned up). A district court properly 22 exercises its discretion to remand for further proceedings where “there is serious doubt as 23 to whether [the claimant] is disabled.” Leon, 880 F.3d at 1048. See also Brown-Hunter v. 24 Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (“[E]ven if all three requirements are met, we 25 retain flexibility in determining the appropriate remedy. We may remand on an open 26 record for further proceedings when the record as a whole creates serious doubt as to 27 whether the claimant is, in fact, disabled within the meaning of the Social Security Act.”) 28 (cleaned up). 1 The credit-as-true rule is inapplicable here. Although step one is satisfied in light 2|| of the R&R’s determinations (which the Commissioner has not challenged) that the ALJ □□ failed to provide legally sufficient reasons for discrediting the opinions of Dr. Malczak and 4|| for discrediting Plaintiff's symptom testimony, step two is not satisfied. As noted in the 5 || R&R, the ALJ must still resolve significant conflicts between Dr. Malczak’s opinions and 6|| the less-restrictive opinions of several other medical sources (some of which the ALJ 7|| deemed fully persuasive), and there are also significant seeming conflicts between 8 || Plaintiff's symptom testimony and other evidence in the record that the ALJ should address 9|| in the first instance. The Court agrees with the R&R that further proceedings would be 10 || useful to address these unresolved issues. 11 Alternatively, even if step two were satisfied, the Court would decline to remand for an award of benefits because it harbors serious doubt as to whether Plaintiff is disabled. 13 || As noted, several medical sources whom the ALJ deemed “persuasive” opined that Plaintiff did not have disabling limitations. 15 Accordingly, 16 IT IS ORDERED that: 17 (1) Plaintiff's objections to the R&R (Doc. 23) are overruled. 18 (2) The R&R (Doc. 22) is adopted. 19 (3) The decision of the ALJ is reversed and this matter is remanded for further 20 || proceedings. 21 (4) The Clerk shall enter judgment accordingly and terminate this action. 22 Dated this 2nd day of July, 2024. 23 24 Lm ee” 25 f _o——— Dominic W. Lanza 26 United States District Judge 27 28
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