1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Harry Lewis Benton, Jr., No. CV-20-01846-PHX-GMS
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 At issue is the denial of Plaintiff Harry Lewis Benton, Jr.’s Application for Social 16 Security Disability Insurance (“SSDI”) benefits by the Social Security Administration 17 (“SSA”) under the Social Security Act (“the Act”). Plaintiff filed a Complaint (Doc. 1) 18 seeking judicial review of that denial and an Opening Brief (Doc. 32). Defendant SSA 19 filed an Answering Brief (Doc. 37), and Plaintiff filed a Reply (Doc. 40). The Court has 20 reviewed the briefs and Administrative Record (“AR”) (Doc. 26) and reverses the 21 Administrative Law Judge’s (“ALJ”) decision (AR 48-60) and remands this matter for 22 calculation of benefits for the reasons addressed herein. 23 I. Background 24 Plaintiff filed an Application for SSDI benefits on December 1, 2016, alleging a 25 disability onset date that was later amended to October 1, 2017. (Doc. 32 at 2). After state 26 agency denials, ALJ Earl C. Cates issued a decision denying Plaintiff’s Application on 27 March 5, 2018. (AR 181-99). Thereafter, the Appeals Council granted Plaintiff’s Request 28 for Review of the ALJ’s decision and remanded the case to the ALJ for further proceedings. 1 (Id. at 200-05). A new hearing was held and a new unfavorable opinion issued on April 5, 2 2019. (Id. at 48-60). After state agency denials, this appeal followed. (Doc. 1). 3 Plaintiff argues that he has a number of physical and mental impairments, some 4 stemming from his years of military service including deployments to Kuwait and Iraq. 5 (Doc. 32 at 5, 10). Plaintiff experienced multiple improvised explosive device (“IED”) 6 exposures during his military service. (AR 126). He received a medical discharge from 7 the military in 2016 and received a 100% disability rating from the Department of Veterans 8 Affairs. (Id. at 75-76, 85, 568). Plaintiff testified that his primary medical condition was 9 PTSD and that he experienced “flashbacks” to his time in combat about three to four times 10 per week. (AR 91, 125-26). Following a flashback, Plaintiff stated that he had to go to his 11 room, close the blinds, and rest for around 30 minutes. (Id. at 127). Plaintiff testified that 12 he also experienced bilateral knee pain, bilateral shoulder pain, back pain, headaches, and 13 hypertension. (Id. at 125). 14 After considering the medical evidence and opinions, the ALJ evaluated Plaintiff’s 15 disability claim based on the severe impairments of chronic cervical spine pain with 16 radiculopathy, chronic low back pain syndrome, post-traumatic stress disorder (“PTSD”), 17 unspecified depressive disorder, alcohol use disorder, and cannabis use disorder. (AR 52). 18 While the ALJ noted that Plaintiff’s severe impairments limited his ability to perform basic 19 work activities and determined that Plaintiff could not perform his past work as a police 20 officer, the ALJ found Plaintiff had the residual functional capacity (“RFC”) to perform 21 medium work, but with a number of limitations. (Id. at 52). 22 Plaintiff argues that the ALJ erred in rejecting the opinions of treating provider, Dr. 23 Sergey Sheleg, M.D., without giving specific and legitimate reasons for doing so, and in 24 purporting to give great weight to consultative examiner, Dr. Rabara, but failing to account 25 for his assessment of Plaintiff’s limitations. (Doc. 32). Plaintiff also argues the ALJ erred 26 in rejecting his symptom testimony in the absence of clear and convincing reasons for 27 doing so. (Id.) The Commissioner argues that the ALJ’s opinion is free of harmful error 28 and must be affirmed. (Doc. 37). The Court has reviewed the medical record and will 1 discuss the pertinent evidence in addressing the issues raised by the parties. 2 II. Legal Standards 3 An ALJ’s factual findings “shall be conclusive if supported by substantial 4 evidence.” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). The Court may set aside 5 the Commissioner’s disability determination only if it is not supported by substantial 6 evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 7 Substantial evidence is relevant evidence that a reasonable person might accept as adequate 8 to support a conclusion considering the record as a whole. Id. Generally, “[w]here the 9 evidence is susceptible to more than one rational interpretation, one of which supports the 10 ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 11 954 (9th Cir. 2002) (citations omitted). In determining whether to reverse an ALJ’s 12 decision, the district court reviews only those issues raised by the party challenging the 13 decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). 14 To determine whether a claimant is disabled for purposes of the Act, the ALJ 15 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 16 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 17 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 18 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 19 §404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 20 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At 21 step three, the ALJ considers whether the claimant’s impairment or combination of 22 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 23 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically 24 found to be disabled. Id. At step four, the ALJ assesses the claimant’s RFC and determines 25 whether the claimant is still capable of performing past relevant work. 20 C.F.R. 26 § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and final step, where she 27 determines whether the claimant can perform any other work in the national economy 28 based on the claimant’s RFC, age, education, and work experience. 20 C.F.R. 1 § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 2 III. Analysis 3 Plaintiff argues that the ALJ erred in rejecting the opinions of treating provider, Dr. 4 Sergey Sheleg, M.D., without giving specific and legitimate reasons for doing so, and in 5 purporting to give great weight to consultative examiner, Dr. Rabara, but failing to account 6 for his assessment of Plaintiff’s limitations. (Doc. 32). Plaintiff also argues the ALJ erred 7 in rejecting his symptom testimony in the absence of clear and convincing reasons for 8 doing so. (Id.) The Commissioner argues that the ALJ’s opinion is free of harmful error 9 and must be affirmed. (Doc. 37). The Court will address these issues in turn. 10 A. Medical Opinions 11 When evaluating medical opinion evidence in cases filed prior to March 27, 2017, 12 “[t]he ALJ must consider all medical opinion evidence,” and there is a hierarchy among the 13 sources of medical opinions. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). 14 Those who have treated a claimant are treating physicians, those who examined but did not 15 treat the claimant are examining physicians, and those who neither examined nor treated the 16 claimant are non-examining physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), 17 as amended (Apr. 9, 1996). 18 Generally, opinions of treating physicians are entitled to the greatest weight; 19 opinions of examining, non-treating physicians are entitled to lesser weight; and opinions 20 of non-examining physicians are entitled to the least weight. See Garrison v. Colvin, 759 21 F.3d 995, 1012 (9th Cir. 2014).1 While greater weight is generally afforded to treating 22 physicians, a “treating physician’s opinion is not, however, necessarily conclusive as to 23 either a physical condition or the ultimate issue of disability.” Rodriguez v. Bowen, 876 24 F.2d 759, 761–62 & n. 7 (9th Cir. 1989). 25 When examining doctors “provide independent clinical findings that differ from the
26 1 The regulations provide that the amount of weight given to any medical opinion depends on a variety of factors, namely: whether the physician examined the claimant; the length, 27 nature, and extent of the treatment relationship (if any); the degree of support the opinion has, particularly from medical signs and laboratory findings; the consistency of the opinion 28 with the record as a whole; the physician’s specialization; and “other factors.” 20 C.F.R. §§ 404.1527(c)(1)–404.1527(c)(6). 1 findings of the treating physician, such findings are themselves ‘substantial evidence.’” 2 Lingenfelter v. Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007) (quoting Orn, 495 F.3d 625, 3 632) (other citations omitted). “As is the case with the opinion of a treating physician, the 4 Commissioner must provide clear and convincing reasons for rejecting the uncontradicted 5 opinion of an examining physician.” Lester, 81 F.3d at 830–31. “And like the opinion of 6 a treating doctor, the opinion of an examining doctor, even if contradicted by another 7 doctor, can only be rejected for specific and legitimate reasons that are supported by 8 substantial evidence in the record.” Id. (citing Andrews v. Shalala, 53 F.3d 1035, 1043 9 (9th Cir. 1995)). 10 An ALJ meets the “substantial evidence” requirement by “setting out a detailed and 11 thorough summary of the facts and conflicting clinical evidence, stating his interpretation 12 thereof, and making findings.” Garrison, 759 F.3d at 1012 (quoting Reddick, 157 F.3d at 13 725). This means that an ALJ must “do more than state conclusions.” Id. Rather, the ALJ 14 “must set forth his own interpretations and explain why they, rather than the doctors’, are 15 correct.” Id. The Ninth Circuit requires this exacting standard “because, even when 16 contradicted, a treating or examining physician’s opinion is still owed deference and will 17 often be ‘entitled to the greatest weight . . . even if it does not meet the test for controlling 18 weight.’” Id. (quoting Orn, 495 F.3d at 633). The Court will not reverse for an error that 19 is “inconsequential to the ultimate nondisability determination” or where the ALJ’s “path 20 may reasonably be discerned, even if the [ALJ] explains [her] decision with less than ideal 21 clarity.” Treichler v. Comm’r of Soc. Sec., 775 F.3d 1090, 1099 (9th Cir. 2014) (citing 22 Alaska Dept. of Envtl. Conservation v. E.P.A., 540 U.S. 461, 497 (2004)). 23 1. Dr. Sergey Sheleg, M.D. 24 The ALJ considered the medical opinions and treatment notes of Dr. Sergey Sheleg, 25 M.D., Plaintiff’s treating physician. In December 2017, Dr. Sheleg completed an 26 assessment of Plaintiff’s impairments, finding that due to “chronic headache, chronic 27 bilateral knee pain, chronic neck pain, chronic back pain, chronic bilateral ankle pain, 28 history of bilateral rotator cuff surgeries, ulnar nerve pain, obstructive sleep apnea, PTSD, 1 and traumatic brain injury,” Plaintiff could sit, stand, or walk less than two hours in an 2 eight-hour workday and would need to rest every 21 to 45 minutes. (AR 1068). Dr. Sheleg 3 opined that Plaintiff’s impairments would cause him to be off task greater than 21% of an 4 eight-hour day and that he would be absent from work six or more days per month. (Id. at 5 1069). In January 2019, Dr. Sheleg completed an updated assessment with similar 6 findings. (Id. at 1091-92). The Vocational Expert (“VE”) testified that an individual could 7 only miss one day of work per month to maintain competitive employment. (AR 81-82). 8 Therefore, Dr. Sheleg’s opinion that Plaintiff’s impairments would cause him to miss six 9 or more days per month would preclude all employment based on the VE’s testimony. (Id. 10 at 1069). 11 The ALJ gave Dr. Sheleg’s opinions “less weight,” finding that they were 12 inconsistent with the greater record but citing to no portion of the record when making this 13 determination. (AR 56). The ALJ then discussed a single treatment note from October 14 2017, stating that Plaintiff “denied gross musculoskeletal or neurological deficits at that 15 time, and exam findings were mostly limited to lumbar paraspinal tenderness and mildly 16 limited range of motion, as well as some knee crepitus but with full and pain free knee 17 range of motion.” (Id.; citing 907, 909). 18 What the ALJ does not discuss is how the single exam finding he cites discounts all 19 of Dr. Sheleg’s opinions. Nor does the ALJ find that the exam findings he cited are 20 somehow inconsistent with the opinions of Dr. Sheleg. The ALJ does not attempt to 21 explain how the treatment note citing lumbar paraspinal tenderness which caused a limited 22 range of motion and knee crepitus could be inconsistent with Dr. Sheleg’s opinions, which 23 included findings of lumbar spine pain and knee impairments that would limit his ability 24 to work. Neither the Commissioner nor the Court can attempt to interpret what the ALJ 25 was thinking here. See Bray v. Comm’r of Soc. Sec., 554 F.3d 1219, 1226 (9th Cir. 2009) 26 (the Court reviews only the “reasoning and factual findings offered by the ALJ–not post 27 hoc rationalizations that attempt to intuit what the adjudicator may have been thinking”). 28 The Court finds that the ALJ did not base his decision on substantial evidence. If 1 the ALJ was implying that Plaintiff had some improvement in symptoms at this specific 2 appointment, he needed to explain how those improvements were at odds with the opinions 3 of Dr. Sheleg and the other medical evidence of record. As the Ninth Circuit has previously 4 discussed, the presence of waxing and waning of symptoms during the treatment period do 5 not necessarily indicate an ability to maintain employment, nor do some symptoms 6 improving negate a treating provider’s opinions. However, the key requirement in this 7 scenario is for the ALJ to explain why evidence of improvement in certain areas negates 8 the opinions of a provider. See Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) 9 (stating that a “[provider’s] statements must be read in context of the overall diagnostic 10 picture he draws. That a person who suffers from severe panic attacks, anxiety, and 11 depression makes some improvement does not mean that the person’s impairments no 12 longer seriously affect her ability to function in a workplace”); Ghanim v. Colvin, 763 F.3d 13 1154, 1164 (9th Cir. 2014) (occasional signs of improvement do not undermine consistent 14 impairments in the overall record). The ALJ did not so explain here. 15 The only other reason the ALJ purportedly used to give little weight to this opinion 16 had to do with Dr. Sheleg’s statement that Plaintiff was “significantly disabled” as a result 17 of his military service. (AR 56, citing 1028-1029). The ALJ took issue with this opinion, 18 stating that the disability determination is one that resides solely with the Commissioner. 19 (Id.) While the ALJ is correct in theory, Dr. Sheleg provided far more than an isolated 20 opinion as to Plaintiff’s disability status. Dr. Sheleg completed two questionnaires related 21 to the functional assessment of Plaintiff’s work-related limitations, based on a longstanding 22 treatment relationship. The Court recognizes that a physician’s statement regarding issues 23 reserved for the Commissioner, such as whether a claimant is disabled, is not entitled to 24 special deference. See 20 C.F.R. § 404.1527(d) (special significance is not given to the 25 source of an opinion on issues reserved to the Commissioner). However, Dr. Sheleg did 26 far more than simply state that Plaintiff was disabled, and those opinions were entitled to 27 the weight due an opinion of a treating physician. See Garrison, 759 F.3d at 1012. This 28 was not a proper reason to discount the opinion of a treating physician. 1 To reject the opinion of Dr. Sheleg, the ALJ needed to “set[] out a detailed and 2 thorough summary of the facts and conflicting clinical evidence, stat[e] his interpretation 3 thereof, and making findings.” Garrison, 759 F.3d at 1012 (quoting Reddick, 157 F.3d at 4 725). The ALJ must “do more than state conclusions.” Id. The Court finds that the 5 relatively brief discussion of Dr. Sheleg’s work-preclusive opinions, with correspondingly 6 sparse citations to the record and no analysis of those selective records, is not an adequate 7 basis to discount the opinion of a treating physician. The ALJ did not support his decision 8 with substantial evidence, and therefore, the Court finds error here. See Garrison, 759 F.3d 9 at 1012 (quoting Reddick, 157 F.3d at 725) (the “substantial evidence” requirement by 10 “setting out a detailed and thorough summary of the facts and conflicting clinical evidence, 11 stating his interpretation thereof, and making findings”). Moreover, this was not mere 12 harmless error, as the VE testified that the limitations opined by Dr. Sheleg would preclude 13 all employment. 14 2. Dr. Michael Rabara, Psy.D. 15 Dr. Rabara, a consultative physician, opined that Plaintiff would have marked 16 difficulty in interacting with the public, with his supervisors, and in responding 17 appropriately to usual workplace situations and changes in routine. (AR 1088). The VE 18 testified that Plaintiff would not be able to sustain employment if he had only an occasional 19 ability to interact appropriately with supervisors. (Id. at 105). The ALJ concluded that Dr. 20 Rabara’s opinion “was given more weight based on the objective nature of Dr. Rabara’s 21 evaluation and his consistency with the greater record, to the extent it supports the residual 22 functional capacity.” (Id. at 58). But, had the ALJ actually given this opinion the weight 23 stated, he would have found Plaintiff disabled based on the VE testimony. 24 As Dr. Rabara’s opinion formed the basis for the VE testimony that Plaintiff’s 25 impairments would preclude all work, there is clear asymmetry between the ALJ’s finding 26 that Dr. Rabara’s opinions are objective and consistent with the greater record, and his 27 determination that Plaintiff can perform a wide range of medium work. Rather than give 28 great weight to this opinion as stated, the ALJ essentially discounted it. See Vasquez v. 1 Astrue, 2013 WL 491977, at *5 (D. Ariz. Feb. 8, 2013) (citing Scott v. Astrue, 647 F.3d 2 734, 740 (7th Cir. 2011) (remanding for an award of benefits where “the primary piece of 3 evidence that [the ALJ] relied on does not support the propositions for which it is cited” 4 and concluding “that the ALJ failed to build the requisite logical bridge between the 5 evidence and her conclusion”)). 6 The ALJ ultimately gave the opinion of Dr. Gordon, a consultative examiner, the 7 “most weight.” (AR 57). Dr. Gordon, whose opinion stated that he did not review any 8 portion of the medical record, opined that Plaintiff did not have work-preclusive 9 impairments. (Id. at 1071). In giving greatest weight to this opinion, the ALJ did not 10 provide citations to the record or any other support for his conclusions. This was not 11 proper. And while the Commissioner provides citations to the record to bolster her 12 arguments, the ALJ did not cite to these records in weighing the medical opinion testimony 13 and the Court cannot consider them as a basis to affirm the ALJ. See Garrison v. Colvin, 14 759 F.3d 995, 1010 (9th Cir. 2014) (“We review only the reasons provided by the ALJ in 15 the disability determination and may not affirm the ALJ on a ground upon which he did 16 not rely.”); see also Bray v. Comm’r of Soc. Sec., 554 F.3d 1219, 1226 (9th Cir. 2009) (the 17 Court reviews only the “reasoning and factual findings offered by the ALJ–not post hoc 18 rationalizations that attempt to intuit what the adjudicator may have been thinking”). 19 The ALJ did not support his decision with substantial evidence, and therefore, the Court 20 finds error here. See Garrison, 759 F.3d at 1012 (quoting Reddick, 157 F.3d at 725) 21 (“substantial evidence [requires] setting out a detailed and thorough summary of the facts 22 and conflicting clinical evidence, stating his interpretation thereof, and making findings”). 23 Moreover, this was not mere harmless error, as the VE testified that Plaintiff would not be 24 able to sustain employment if he had only an occasional ability to interact appropriately 25 with supervisors, as opined by Dr. Rabara. (Id. at 105). 26 27 B. Plaintiff’s Symptom Testimony 28 Plaintiff also argues that the ALJ erred in discounting his subjective symptom 1 testimony without providing clear and convincing reasons supported by substantial 2 evidence for doing so. (Doc. 32 at 21-26). The Commissioner argues that the ALJ did not 3 err in discounting Plaintiff’s symptom testimony. (Doc. 37). 4 An ALJ must evaluate whether the claimant has presented objective medical 5 evidence of an impairment “which could reasonably be expected to produce the pain or 6 symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007) 7 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal citations 8 omitted)). In evaluating a claimant’s pain testimony after a claimant produces objective 9 medical evidence of an underlying impairment, “an ALJ may not reject a claimant’s 10 subjective complaints based solely on a lack of medical evidence to fully corroborate the 11 alleged severity of pain.” Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). However, 12 the ALJ may “reject the claimant’s testimony about the severity of [the] symptoms” 13 provided that the ALJ also explains his decision “by providing specific, clear, and 14 convincing reasons for doing so.” Brown-Hunter v. Colvin, 806 F.3d 487, 488–89 (9th Cir. 15 2015). The ALJ may also consider “‘whether the claimant engages in daily activities 16 inconsistent with the alleged symptoms.’” Id. (quoting Lingenfelter v. Astrue, 504 F.3d 17 1028, 1040 (9th Cir. 2007)). “Even where those activities suggest some difficulty 18 functioning, they may be grounds for discrediting the claimant’s testimony to the extent 19 that they contradict claims of a totally debilitating impairment,” Id. at 1113, or where they 20 suggest that “later claims about the severity of [the] limitations were exaggerated,” 21 Valentine v. Astrue, 574 F.3d 685, 694 (9th Cir. 2009). 22 Recognizing that “disability claimants should not be penalized for attempting to lead 23 normal lives in the face of their limitations,” the Ninth Circuit has held that “[o]nly if [a 24 plaintiff’s] level of activity were inconsistent with [a plainitff’s] claimed limitations would 25 these activities have any bearing on [her] credibility.” Reddick v. Chater, 157 F.3d at 722 26 (citations omitted); see also Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir.2012) (“The 27 critical differences between activities of daily living and activities in a full-time job are that 28 a person has more flexibility in scheduling the former than the latter, can get help from 1 other persons . . . and is not held to a minimum standard of performance, as she would be 2 by an employer. The failure to recognize these differences is a recurrent, and deplorable, 3 feature of opinions by administrative law judges in social security disability cases.”). 4 Plaintiff testified that he was unable to work due to symptoms from his various 5 mental health and physical impairments. He complained of constant knee pain and 6 difficulty managing stairs. He testified to anxiety, depression, social withdrawal, PTSD, 7 and irritability. (AR 55). The ALJ found that Plaintiff’s medically determinable 8 impairments could reasonably be expected to produce the symptoms alleged, but that his 9 statements concerning the intensity, persistence, and limiting effects of those symptoms 10 were not consistent with the medical evidence, including his own statements and testimony 11 regarding activities of daily living. (Id.) 12 The ALJ found Plaintiff’s symptom testimony to be not credible because the ALJ 13 believed Plaintiff didn’t want to work, because his daily activity levels were inconsistent 14 with his complaints, and apparently because he used marijuana and alcohol. (Id.) The 15 Court will review these portions of the decision in turn. 16 The ALJ’s personal opinions about Plaintiff’s desire to work are present in the 17 hearing transcript and the decision itself. At the hearing, the ALJ asked Plaintiff why he 18 had not been retrained for a different job after his military service, stating to him that “it 19 seems like you just kind of shut down. You just want to be retired.” (Id. at 135). In the 20 decision, after acknowledging that Plaintiff was discharged from the Military with a 100% 21 disability rating by the Department of Veterans Affairs2, the ALJ stated that “He is not 22 retired and it would appear he does not want to work any longer, which does not equate to 23 disability.” (Id. at 55). This was an improper basis to reject Plaintiff’s symptom testimony. 24 As an initial matter, the ALJ does not cite to anything in the record that would reflect 25 that Plaintiff did not want to work or that he just wanted to “be retired.” This was pure 26 speculation on behalf of the ALJ, which is not proper. Benecke v. Barnhart, 379 F.3d 587,
27 2 “The ALJ must consider the VA’s finding in reaching his decision and the ALJ must ordinarily give great weight to a VA determination of disability.” Luther v. Berryhill, 891 28 F.3d 872, 876 (9th Cir. 2018). “However, a VA rating is not conclusive and does not necessarily compel the SSA to reach an identical result.” Id. 1 594 (9th Cir. 2004) (“Sheer disbelief is no substitute for substantial evidence.”). This was 2 not a valid reason to discount Plaintiff’s testimony. 3 As to the discussion of Plaintiff’s daily activities, the ALJ found his activity levels 4 to be inconsistent with his subjective complaints. In support of this finding, the ALJ stated 5 Plaintiff was able to complete self-care activities “such as meals, hygiene and light 6 housework.” (AR 55). However, the ALJ also acknowledged that Plaintiff’s “wife does 7 almost all of the shopping, financial management, and cooking.” (Id.) The ALJ also stated 8 that Plaintiff “is not confined to bed,” and that “he has a medical marijuana card and 9 smokes marijuana twice a week. He also drinks vodka weekly.” (Id.) The single citation 10 to the record in this section of the opinion follows a statement that Plaintiff has managed 11 to limit his drinking since he left the military. (Id. at 1002). 12 The Court cannot meaningfully review the ALJ’s finding that Plaintiff’s daily 13 activities are inconsistent with his symptom testimony as the ALJ does not tie any of these 14 activities—meals, hygiene, and light housework—to any of the work-preclusive specific 15 symptoms alleged. See Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (ALJ 16 must “set forth the reasoning behind its decisions in a way that allows for meaningful 17 review”). Moreover, the Court is not aware of a requirement that a plaintiff be “confined 18 to bed” in order to be found disabled. Nor does the ALJ explain how Plaintiff’s medical 19 marijuana and alcohol use discredits his symptom testimony, especially considering that 20 the ALJ found alcohol use disorder and cannabis use disorder to be severe impairments. 21 (AR 52). The ALJ’s failure to cite to the record when making the findings with respect to 22 Plaintiff’s symptom testimony make it impossible for the Court to meaningfully review 23 this determination. 24 Following the discussion of Plaintiff’s daily activities, the ALJ discusses some 25 medical records in a single paragraph, but without any analysis or application to Plaintiff’s 26 symptoms. (Id. at 55). Nor does this section conclude with any relation back to Plaintiff’s 27 symptom testimony. The Court cannot meaningfully review this discussion of medical 28 evidence, as there is no link whatsoever to Plaintiff’s subjective symptom testimony. 1 Courts have repeatedly reversed an ALJ’s decision where there is discussion of medical 2 evidence but no connection to the rejection of symptom testimony. Nelson v. Comm’r of 3 Soc. Sec. Admin., 2020 WL 1510332, at *3 (D. Ariz. Mar. 30, 2020); see also Guerrero v. 4 Berryhill, 2018 WL 5276415, at *4 (D. Ariz. Oct. 24, 2018) (rejecting agency rationale 5 where “the ALJ did not link this medical evidence to her credibility findings . . . [but] 6 simply recited the medical evidence, which is not sufficient”); Bridges v. Commr. of Soc. 7 Sec., 2018 WL 4282826, at *3 (D. Ariz. Sept. 7, 2018) (“Nor did [the ALJ] explain how 8 Plaintiff’s treatment records undermine her symptom testimony.”). Therefore, the Court 9 finds that the ALJ committed error by failing to provide clear and convincing reasons for 10 discounting Plaintiff’s credibility. 11 IV. Remand 12 Once a court has determined an ALJ’s decision contains harmful error, the decision 13 whether to remand a case for additional evidence or for an award of benefits is within the 14 discretion of the court. Reddick, 157 F.3d at 728; Swenson v. Sullivan, 876 F.2d 683, 689 15 (9th Cir. 1989). “If additional proceedings can remedy defects in the original 16 administrative proceedings, a social security case should be remanded. Where, however, 17 a rehearing would simply delay receipt of benefits, reversal is appropriate.” Lewin v. 18 Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). 19 “Where the Commissioner fails to provide adequate reasons for rejecting the 20 opinion of a treating or examining physician, we credit that opinion ‘as a matter of law.’” 21 Lester, 81 F.3d at 834 (quoting Hammock v. Bowen, 879 F.2d 498, 502 (9th Cir. 1989)). 22 Courts apply the credit-as-true rule and remand for benefits when: “(1) the record has been 23 fully developed and further administrative proceedings would serve no useful purpose; (2) 24 the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether 25 claimant testimony or medical opinion; and (3) if the improperly discredited evidence were 26 credited as true, the ALJ would be required to find the claimant disabled on remand.” 27 Garrison, 759 F.3d at 1020; see also Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000); 28 Smolen, 80 F.3d at 1292. “We have, in a number of cases, stated or implied that it would 1 be an abuse of discretion for a district court not to remand for an award of benefits when 2 all of these conditions are met.” Garrison, 759 F.3d at 1020. 3 Regarding the first element of the test, the Court is aware of no outstanding issues 4 that must be further developed before a determination of disability can be made. The Court 5 finds that the record here is fully developed, and further administrative proceedings are 6 unnecessary. 7 The second element of the test is also satisfied. As discussed at length above, the 8 ALJ failed to provide legally sufficient reasons for giving little weight to treating physician 9 Dr. Sheleg’s medical opinions and for his seemingly mistaken weight given to Dr. Rabara’s 10 opinion. Moreover, the ALJ committed harmful error by failing to provide adequate 11 reasons for discounting Plaintiff’s subjective symptom testimony, which the Court finds to 12 be consistent with the limitations opined by Drs. Sheleg and Rabara. 13 With respect to the third part of the test, the Court finds the ALJ would be required 14 to find Plaintiff disabled if the rejected opinions were credited as true. Importantly here, 15 the VE testified that, based on the improperly rejected opinions of Dr. Sheleg, Plaintiff 16 would not be able to perform any work. (AR 81-82, 1069). Crediting Dr. Sheleg’s 17 opinions as true, the Court finds that the ALJ would be required to find Plaintiff disabled 18 based on the testimony of the VE.3 Therefore, the three-part test is satisfied here and, 19 consequently, a remand for an award of benefits is appropriate. 20 V. Conclusion 21 For the foregoing reasons, the Court finds the ALJ committed harmful error by 22 failing to provide legally sufficient reasons for assigning little weight to Dr. Sheleg’s 23 opinions, for purporting to give “greater weight” to the opinion of Dr. Rabara when the VE 24 found that one of the opined limitations would preclude all work (AR 105), and in finding 25 Plaintiff’s symptom testimony not credible without providing substantial evidence. The 26 Court further finds that based on these errors, and in finding that the credit-as-true elements
27 3 Case law is not clear on whether a consultative examining physician’s opinion can be credited-as-true. However, it is immaterial here whether the Court credits Dr. Rabara’s 28 opinions as true, as the Court can clearly credit the opinions of treating physician, Dr. Sheleg. See Lester, 81 F.3d at 834. || have been met, remand for an award of benefits is warranted. 2 Accordingly, 3 IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED, and this case is REMANDED to the Social Security Administration for an || award of benefits. The Clerk of Court is directed to enter judgment accordingly. 6 Dated this 9th day of June, 2022. Wars ) A Whacrsay Sooo) 9 Chief United states District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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