Campbell v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: January 2, 2024
• Docket: 2:22-cv-01865
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Torry Campbell, No. CV-22-01865-PHX-DJH

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Mr. Torry Campbell (“Plaintiff”) seeks this Court’s review of the Social Security 16 Administration (“SSA”) Commissioner’s (the “Commissioner”) denial of his application 17 for Social Security Disability Insurance (“SSDI”). (Doc. 13 at 1). The Commissioner has 18 filed an Answer Brief and Countermotion Motion to Remand (“Motion to Remand”). 19 (Doc. 19). For the reasons that follow, the Court reverses the decision of the Administrative 20 Law Judge (“ALJ”) and remands this case for further proceedings. 21 I. Background 22 Plaintiff filed for SSDI benefits on February 19, 2020, alleging he became disabled 23 on November 18, 2018. (Doc. 11 (“AR”) at 15). On August 2, 2021, the ALJ held a 24 hearing to determine whether Plaintiff was disabled under the Social Security Act (the 25 “Act”).1 (Id.) Plaintiff testified at this hearing. (Id.) After the hearing, the ALJ found that 26 1 Disability is defined as the inability to engage in any substantial gainful activity by reason 27 of any medically determinable physical or mental impairment or combination of impairments that can be expected to result in death or that has lasted or can be expected to 28 last for a continuous period of not less than 12 months. (AR at 15). 1 Plaintiff was not disabled under the Act and denied his claim for SSDI benefits. (Id. at 30). 2 II. Discussion 3 In his Opening Brief, Plaintiff argues that the ALJ’s decision is not supported by 4 substantial evidence because: (1) the ALJ rejected health care provider assessments without 5 providing sufficient explanations; and (2) the ALJ erred by failing to provide clear and 6 convincing reasons for discrediting Plaintiff’s symptom testimony. (Doc. 13 at 1–2). 7 Plaintiff asks this Court to remand for an award of benefits, or in the alternative, to remand 8 for further proceedings. (Id. at 24). 9 In its Response and subsequent Motion to Remand, the Commissioner concedes that 10 remand is warranted here, but argues that the Court should remand for further proceedings 11 rather than with an instruction to award benefits. (Doc. 19 at 2). The Commissioner claims 12 the appropriate remedy is to remand for further proceedings due to conflicting medical 13 opinion evidence, ambiguities in the objective evidence and Plaintiff’s course of treatment, 14 as well as Plaintiff’s active substance abuse during the relevant period. (Id.) 15 A. Legal Standards for Remand 16 A reviewing court has the discretion to remand a case either for further 17 administrative proceedings or for a finding of disability and award of benefits. Rodriguez 18 v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989); see also 42 U.S.C. §405(g) (stating that courts 19 are empowered to “affirm, modify, or reverse” a decision by the Commissioner “with or 20 without remanding the cause for a rehearing.”). Although a court should generally remand 21 to the agency for additional investigation or explanation (sometimes referred to as the 22 “ordinary remand rule”), a court has discretion to remand for an award of benefits when no 23 useful purpose would be served by further administrative proceedings or when the record 24 has been fully developed and the evidence is insufficient to support the Commissioner’s 25 decision. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014); 26 Garrison v. Colvin, 759 F.3d 995, 1017, 1020 (9th Cir. 2014). 27 The Ninth Circuit has set out a three-part test, sometimes referred to as the “credit- 28 as-true rule,” to determine whether the Court should depart from the “ordinary remand 1 rule.” Treichler, 775 F.3d at 1100-02; Varney v. Sec’y of Health & Hum. Servs., 859 F.2d 2 1396, 1401 (9th Cir. 1988) (“Varney II”). That rule states that a district court may credit 3 evidence that was rejected during the administrative process and remand for an immediate 4 award of benefits if: (1) the ALJ failed to provide legally sufficient reasons for rejecting 5 evidence; (2) there are no outstanding issues that must be resolved before a determination 6 of disability can be made; and (3) it is clear from the record that the ALJ would be required 7 to find the claimant disabled were such evidence credited. Treichler, 775 F.3d at 1100; 8 Garrison, 759 F.3d at 1020. As well, it is “an abuse of discretion for a district court not to 9 remand for an award of benefits when all of these conditions are met.” Garrison, 759 F.3d 10 at 1021 (internal citations omitted). 11 B. The Credit-As-True Rule Does Not Apply 12 The credit as true rule cannot apply here because it is not clear from the record that 13 the ALJ would be required to find the claimant disabled if the discredited evidence were 14 credited. Treichler, 775 F.3d at 1100; Garrison, 759 F.3d at 1020. The Court will first 15 address Plaintiff’s symptom testimony, then the medical opinion testimony. 16 1. Plaintiff’s Symptom Testimony 17 At the hearing below, the ALJ found, as to Plaintiff’s symptom testimony, that he 18 has the residual functional capacity to “perform medium work as defined in 20 CFR 19 404.1567(c) except he can frequently climb ramps and stairs. He can never climb ladders, 20 ropes or scaffolds. He can frequently balance, stoop, kneel, crouch and crawl” and that 21 Plaintiff can have “occasional interaction with supervisors, co-workers and the public.” 22 (AR at 21). To reach this finding, the ALJ “considered all symptoms and the extent to 23 which these symptoms can reasonably be accepted as consistent with the objective medical 24 evidence and other evidence” and also “considered the medical opinion(s) and prior 25 administrative medical finding(s).” (Id.) Plaintiff testified on his own behalf. (AR at 17). 26 An ALJ must perform a two-step analysis when determining whether a claimant’s 27 testimony regarding subjective pain or symptoms is credible. Lingenfelter v. Astrue, 504 28 F.3d 1028, 1035–1036 (9th Cir. 2007). First, the ALJ evaluates whether the claimant has 1 presented objective medical evidence of an impairment “which could reasonably be 2 expected to produce the pain or symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 3 1035–36 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) 4 (en banc) (internal quotation marks omitted)). Second, absent evidence of malingering, an 5 ALJ may only discount a claimant’s allegations for reasons that are “specific, clear and 6 convincing” and supported by substantial evidence. Molina v. Astrue, 674 F.3d 1104, 1112 7 (9th Cir. 2012). 8 Here, the Commissioner concedes that “the ALJ erred by discounting Plaintiff’s 9 symptom testimony solely because ‘the objective medical records fail to support the 10 severity of [the] impairments and symptoms alleged.’” (Doc. 19 (citing AR 21)). This 11 concession is, in essence, a concession that the ALJ failed to provide legally sufficient 12 reasons for rejecting evidence. See Treichler, 775 F.3d at 1100; Garrison, 759 F.3d 13 at 1020. However, the Commissioner also argues that it is not clear from the record that 14 the ALJ would be required to find the claimant disabled were such evidence credited under 15 the credit-as-true rule because “the conflict between Plaintiff’s symptom testimony and the 16 overall examination findings requires further administrative proceedings to resolve.” (Doc. 17 18 at 9). The Court agrees. 18 Below, the ALJ found that Plaintiff’s “medically determinable impairments could 19 reasonably be expected to cause the alleged symptoms; however, the claimant’s statements 20 concerning the intensity, persistence and limiting effects of these symptoms are not entirely 21 consistent with the medical evidence and other evidence in the record.” (AR at 28). After 22 discounting Plaintiff’s testimony, the ALJ discussed other evidence in the record as to each 23 of Plaintiff’s impairments. For instance, the ALJ noted that Plaintiff’s statements about the 24 intensity, persistence, and limiting effects of his symptoms were inconsistent with the other 25 evidence in the record, specifically his physical examinations. (Id. at 23). One such 26 examination was the examination by the state agency medical consultant, G. Spellman, 27 M.D., who opined that Plaintiff “was capable of performing medium work, with postural 28 limitations consistent with the residual functional capacity.” (Id. at 24). The ALJ also 1 noted that Dr. Spellman’s opinion was supported by the treatment notes. (Id.) 2 Conversely, Plaintiff testified that he suffered from “chronic cramps, pain and 3 muscle spasms that occur mainly in the lower extremities [that] also affect his upper 4 extremities. [Plaintiff also] reported experiencing facial twitching and difficulty 5 swallowing.” (AR 23). Plaintiff also “reported taking daily naps, lasting one to four hours. 6 He indicated that he relies on audible books due to his difficulty with understanding 7 information. He reported he relies on his wife to pay bills, help him with organizing and 8 that he no longer feels safe in driving.” (Id.) 9 Thus, this evidence is in such conflict that the Court cannot determine on appeal 10 whether or not it is clear that the ALJ would be required to find the claimant disabled were 11 such evidence credited. Treichler, 775 F.3d at 1100; Garrison, 759 F.3d at 1020. A finding 12 either way would require the Court to re-weigh the evidence, which it will not do. See 13 Trejo v. Colvin, 2016 WL 769106, at *3 (C.D. Cal. Jan. 28, 2016) (“This Court does not 14 reweigh the evidence or act as a next-level fact-finder on appeal; its appellate review is 15 limited to determining whether the agency committed reversible legal error.”). Thus, 16 because there are outstanding issues that must be resolved before a determination of 17 disability can be made, the Court must reverse and remand for further proceedings, rather 18 than award Plaintiff benefits upon remand. See Connett v. Barnhart, 340 F.3d 871, 874– 19 76 (9th Cir. 2003) (concluding that a reviewing court retains discretion to remand for 20 further proceedings even when the ALJ fails “to assert specific facts or reasons to reject 21 [the claimant]’s testimony”); see also Garrison, 759 F.3d at 1021 (noting that a district 22 court retains the flexibility to “remand for further proceedings when the record as a whole 23 creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of 24 the Social Security Act.”). 25 2. The Medical Opinions 26 The Commissioner also concedes that the ALJ committed legal error when he failed 27 to sufficiently support his decision to reject the opinions of treating neurologist, Suraj 28 Muley, M.D., treating primary care physician, Zachary Ortiz, M.D., state agency 1 consultative examiner Natalie Hurd, Psy.D., and non-examining psychologist Marc Walter, 2 Ph.D. (Doc. 19 at 1; 10). While the Commissioner concedes this point, it also argues that 3 remand is necessary so that the Agency may properly evaluate the medical opinion 4 testimony. (Id. at 10). 5 An ALJ “cannot reject an examining or treating doctor’s opinion as unsupported or 6 inconsistent without providing an explanation supported by substantial evidence. The 7 agency must ‘articulate . . . how persuasive’ it finds ‘all of the medical opinions’ from each 8 doctor or other source” and “explain how [it] considered the supportability and consistency 9 factors’ in reaching these findings.” Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) 10 (citing 20 C.F.R. § 404.1520c(b)). The SSA regulations provide that the most important 11 factors to consider when evaluating the persuasiveness of medical opinions are 12 “supportability” and “consistency.” 20 C.F.R. § 404.1520c(a). Supportability refers to 13 “the extent to which a medical source supports the medical opinion by explaining the 14 ‘relevant . . . objective medical evidence.” Woods, 32 F.4th at 791–92 (quoting 20 C.F.R. 15 § 404.1520c(c)(1)). Consistency refers to “the extent to which a medical opinion is 16 ‘consistent . . . with the evidence from other medical sources and nonmedical sources in 17 the claim.” Id. at 792 (quoting 20 C.F.R. § 404.1520c(c)(2)). Woods makes clear that to 18 properly reject a medical opinion under the substantial evidence standard, the ALJ “must 19 articulate how persuasive it finds all the medical opinions from each doctor or other source 20 and explain how it considered the supportability and consistency factors in reaching these 21 findings.” Id. (quoting 20 C.F.R. § 404.1520c(b)). 22 The Commissioner concedes that the ALJ failed to provide legally sufficient reasons 23 for rejecting the opinions of Doctors Muley, Ortiz, Hurd, and Walter, but argues that 24 remand is necessary to properly evaluate these opinions. (Doc. 19 at 10). Plaintiff argues 25 that the Commissioner wants two bites at the apple by having a rehearing. (Doc. 20 at 2). 26 Here, the ALJ considered and reviewed the medical opinions of Dr. Muley, Dr. 27 Ortiz, Dr. Hurd, and Dr. Walter, as well as other opinions. (AR at 24–28). As to each of 28 these opinions, the ALJ found that these opinions were not consistent with the “evidence 1 as a whole.” (Id.) For example, the ALJ noted that Dr. Muley opined Plaintiff was capable 2 of completing his job but would need modifications. (Id. at 25). The ALJ found that Dr. 3 Muley’s treatment notes supported the RFC, but that “increased physical limitations” were 4 not supported “given that [Plaintiff] was also often observed with normal coordination, no 5 muscle hypertrophy, no involuntary movements, normal muscle tone, full to near full 6 strength in the bilateral upper extremities, full range of motion in the bilateral upper 7 extremities, negative straight leg raise” as well as “full to near full strength in the bilateral 8 lower extremities, full range of motion in the bilateral lower extremities, and a normal 9 gait.” (Id. at 25) (citation omitted). From this, the ALJ found that Dr. Muley’s opinion 10 was not persuasive because it was not supported by the relevant objective medical 11 evidence—including his own treatment notes. (Id. (“[t]he treatment notes support 12 limitations consistent with the residual functional capacity.”)). The ALJ made similar 13 findings as to Dr. Ortiz, Dr. Hurd, and Dr. Walter’s opinions as well. (AR at 24–28). 14 On the other hand, the ALJ found that the opinion of Dr. Spellman, a state agency 15 medical consultant, was consistent with the evidence as a whole and was “very persuasive.” 16 (Id. at 24). Dr. Spellman opined that Plaintiff could perform medium work, with postural 17 limitations “consistent with the residual functional capacity” the ALJ assigned to Plaintiff. 18 (Id.) The ALJ noted that this opinion, as well as his finding, were supported by Dr. 19 Spellman’s treatment notes. (Id.) 20 Under the third factor of the credit-as-true rule, it is not clear from the record that 21 the ALJ would be required to find the claimant disabled were such evidence credited here. 22 Treichler, 775 F.3d at 1100; Garrison, 759 F.3d at 1020. As demonstrated above, there 23 are many medical opinions the ALJ was required to take into account and many of them 24 conflicted with one another. (AR at 24–28). Thus, the Court cannot apply the credit-as- 25 true rule here because some of Dr. Muley’s opinions conflicted with his own treatment 26 notes as well as Dr. Spellman’s opinion, therefore, reversing and remanding for further 27 proceedings is more appropriate. See Dominguez v. Colvin, 808 F.3d 403, 408-09 (9th Cir. 28 2015) (declining to apply credit-as-true rule where a treating physician’s opinion conflicted both with his own treatment notes as well as with the opinion of a separate 2 || examining physician). V. Conclusion 4 The Court, in its discretion, will remand Plaintiff's case for further proceedings || rather than for an award of benefits. On remand, the ALJ must update the record as || necessary; reconsidering the medical opinion evidence, Plaintiffs subjective complaints, 7\| and Plaintiff's RFC; offer Plaintiff a new hearing; and issue a new decision. 8 Accordingly, 9 IT IS ORDERED that the Commissioner’s Motion to Remand (Doc. 19) is granted. The Administrative Law Judge’s decision must be reversed and remanded for 11 || additional administrative proceedings consistent with the directives of this Order. 12 IT IS FURTHER ORDERED that the Clerk of Court is kindly directed to enter 13} judgment accordingly and terminate this action. 14 Dated this 2nd day of January, 2024. 15 16 fe SZ V7 norable' Diang/4. Hurfetewa 18 United States District Judge 19 20 21 22 23 24 25 26 27 28

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