Carlisle v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: February 5, 2025
• Docket: 2:23-cv-02678
• Status: Unknown

Opinion

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

9 Gabriel J Carlisle, No. CV-23-02678-PHX-KML

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff Gabriel J. Carlisle seeks review of the Social Security Commissioner’s 16 final decision denying him disability benefits. The Administrative Law Judge (“ALJ”) 17 committed materially-harmful legal error in evaluating certain medical opinions and 18 Carlisle’s symptom testimony, so the Commissioner’s decision is vacated and remanded 19 for further administrative proceedings. 20 I. Background 21 Carlisle filed an application for disability benefits on June 21, 2021, alleging a 22 disability beginning November 16, 2020. (Administrative Record (“AR”) 15.) Carlisle 23 alleged he was unable to work because of medical conditions including borderline 24 personality disorder, major depressive disorder, generalized anxiety disorder, narcolepsy, 25 and obesity. (AR 19.) 26 Carlisle’s claim was denied initially and on reconsideration. (AR 15.) Carlisle then 27 presented his case to an ALJ who found he was not disabled. (AR 27.) The Appeals Council 28 denied Carlisle’s request for review. (AR 1.) Carlisle then appealed to this court. 1 II. Legal Standard 2 The court may set aside the Commissioner’s disability determination only if it is not 3 supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 4 630 (9th Cir. 2007). “Substantial evidence is more than a mere scintilla but less than a 5 preponderance” of evidence and is such that “a reasonable mind might accept as adequate 6 to support a conclusion.” Id. (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 7 2005)). The court reviews only those issues raised by the party challenging the decision. 8 See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). 9 III. Discussion 10 Carlisle argues the ALJ committed two materially-harmful legal errors in analyzing 11 his claim: (1) the ALJ rejected the assessment of two of Carlisle’s treating mental health 12 providers without providing sufficient explanation; and (2) the ALJ rejected Carlisle’s 13 symptom testimony without adequate justification. Carlisle seeks a remand for a 14 calculation of benefits or, in the alternative, for further administrative proceedings. 15 A. The ALJ’s Five-Step Disability Evaluation Process 16 Under the Social Security Act, a claimant for disability insurance benefits must 17 establish disability prior to the date last insured. 42 U.S.C. § 423(c); 20 C.F.R. § 404.131. 18 A claimant is disabled under the Act if he cannot engage in substantial gainful activity 19 because of a medically-determinable physical or mental impairment that has lasted, or can 20 be expected to last, for a continuous period of twelve months or more. 42 U.S.C. 21 §§ 423(d)(1)(A); 1382c(a)(3)(A). 22 Whether a claimant is disabled is determined by a five-step sequential process. See 23 Woods v. Kijakazi, 32 F.4th 785, 787 n.1 (9th Cir. 2022) (summarizing 20 C.F.R. § 24 404.1520(a)(4)). The claimant bears the burden of proof on the first four steps, but the 25 burden shifts to the Commissioner at step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th 26 Cir. 1999). At step three, the claimant must show that his impairment or combination of 27 impairments meets or equals the severity of an impairment listed in Appendix 1 to Subpart 28 P of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). At step four, the claimant must 1 show his residual functional capacity (“RFC”)—the most he can do with his impairments— 2 precludes him from performing his past work. Id. If the claimant meets his burden at step 3 three, he is presumed disabled and the analysis ends. If the inquiry proceeds and the 4 claimant meets his burden at step four, then at step five the Commissioner must determine 5 if the claimant is able to perform other work that “exists in significant numbers in the 6 national economy” given the claimant’s RFC, age, education, and work experience. Id. at 7 § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. 8 The ALJ found Carlisle met his burden at steps one and two. (AR 18–19.) At step 9 three, the ALJ determined Carlisle’s impairments or combination of impairments did not 10 meet or medically equal the severity of a listed impairment and that Carlisle had the RFC 11 “to perform a full range of work at all exertional levels but with [some] nonexertional 12 limitations.” (AR 19, 21.) The ALJ used this RFC to conclude at step four that Carlisle 13 could not perform his past relevant work in customer service or as an HVAC helper as 14 those occupations are defined in the Dictionary of Occupational Titles (“DOT”). (AR 25– 15 26.) Continuing to step five, the ALJ determined Carlisle could perform “jobs that existed 16 in significant numbers in the national economy,” meaning Carlisle was not disabled. (AR 17 26.) Specifically, the ALJ found Carlisle could work as a housekeeper, dishwasher, and 18 cleanup worker as those jobs are defined in the DOT. (AR 26–27.) 19 In evaluating Carlisle’s RFC, the ALJ considered his entire medical record, but 20 discounted the assessments of two of Carlisle’s treating providers—nurse practitioner Sean 21 Elrod and counselor David D.W. Shumway—because he found them unsupported by the 22 treatment records and inconsistent with Carlisle’s medical record as a whole. (AR 25.) The 23 ALJ also discounted Carlisle’s symptom testimony because it was not consistent with the 24 evidence in the record. (AR 22–24.) Carlisle argues these were harmful legal errors. 25 B. The ALJ’s Evaluation of Medical Opinions 26 For claims filed after 2017 like Carlisle’s, the most important factors an ALJ 27 considers in evaluating medical opinions are “supportability” and “consistency.” Woods, 28 32 F.4th at 791 (citing 20 C.F.R. § 404.1520c(a)). “Supportability” refers to the extent to 1 which a medical source grounds the opinion in an explanation of the relevant objective 2 medical evidence. Id. “Consistency” refers to the extent to which the opinion accords with 3 evidence from other medical and nonmedical sources. Id. at 792. An ALJ must describe 4 how he considered the supportability and consistency factors when explaining how 5 persuasive he finds a medical opinion. Id. But under the 2017 regulations, an ALJ need no 6 longer give special deference to treating physicians, nor provide “specific and legitimate 7 reasons” for rejecting a treating doctor’s opinion. Id. Instead, “an ALJ’s decision, including 8 the decision to discredit any medical opinion, must simply be supported by substantial 9 evidence.” Id. at 787. 10 Elrod and Shumway “opined [Carlisle had] moderately severe to severe limitations 11 in multiple areas of mental functioning.” (AR 25.) The ALJ analyzed their opinions 12 together in one paragraph and found both unpersuasive, stating they were “not supported 13 by the treatment notes” or consistent “with the evidence as a whole.”1 (AR 25.) The ALJ 14 relied on Carlisle’s reports of brief and improving symptoms with treatment, the 15 effectiveness of his medications, and his “largely normal” mental status examinations to 16 discount the medical opinions. (AR 25.) Because the records the ALJ cited do not 17 accurately reflect the record as a whole, he erred in rejecting the providers’ opinions on 18 that ground. 19 Carlisle contends the ALJ’s “characterization” of his record as being comprised of 20 “‘mild complaints of anxiety or depression’ that were ‘usually brief’ and followed with 21 improvement was not an accurate reflection of th[e] record when viewed as a whole.” (Doc. 22 10 at 14 (quoting AR 25).) Indeed, an ALJ is “required . . . to examine th[e] evidence in 23 the broader context of [a claimant’s] impairment.” Attmore v. Colvin, 827 F.3d 872, 877 24 (9th Cir. 2016). For example, the Ninth Circuit found an ALJ improperly rejected a 25 claimant’s testimony where the ALJ “pointed to several portions of the treatment notes that 26 describe[d]” a claimant as generally happy despite alleging depression and anxiety because

27 1 The ALJ found some aspects of Elrod and Shumway’s treatment notes supported the RFC he assigned Carlisle and additional limitations to jobs with “simple instructions, simple 28 work-like procedures, simple work-related decisions, simple tasks, occasional contact with coworkers and the public, and simple changes.” (AR 25.) 1 “the treatment records must be viewed in the light of the overall diagnostic record.” 2 Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014). The ALJ committed the same type 3 of error here. 4 The ALJ cited some improvements reflected in Carlisle’s medical records, but those 5 improvements do not accurately capture the medical records as a whole. Among the most 6 relevant medical records—none of which the ALJ cited—are accounts of Carlisle’s 7 psychiatric hospitalization following a suicide attempt by hanging (AR 306, 355) with 8 continued suicidal thoughts afterward within the alleged disability period (AR 566, 695); 9 self-harm through cutting including as recently as three weeks before the hearing (AR 51); 10 rating his depression as a nine out of ten (AR 414); decreased motivation, accompanied by 11 a belief that he did not “have nor deserve people” (AR 548); reporting minimal 12 improvement with medication (AR 500, 505, 510); symptoms of depression with severe 13 low mood (AR 505); strong feelings of self-harm and wishing he were dead (AR 497, 502, 14 507, 522, 568, 628); and problems with concentration and distractibility (AR 651, 690). 15 These complaints were consistent during the disability period—the same period during 16 which the ALJ concluded Carlisle had improved. 17 The ALJ erred by relying on some records to support finding Elrod and Shumway’s 18 opinions unpersuasive while ignoring the significant records supporting them. See Attmore, 19 827 F.3d at 877 (holding an ALJ must examine evidence “in the broader context [of a 20 claimant’s] impairment” and “cannot simply ‘pick out a few isolated instances of 21 improvement’”) (simplified); see also Lewis v. Comm’r of Soc. Sec. Admin., 625 F. Supp. 22 3d 942, 949–50 (D. Ariz. 2022) (holding an ALJ erred by failing to consider “a significant 23 piece of medical evidence”).) This error is not harmless because it is not clearly 24 “inconsequential to the ultimate nondisability determination.” Marsh v. Colvin, 792 F.3d 25 1170, 1173 (9th Cir. 2015) (simplified). 26 It is true that when the record evidence “is susceptible to more than one rational 27 interpretation it is the ALJ’s conclusion that must be upheld,” but that is not the case here. 28 Burch, 400 F.3d at 679. The reason the ALJ gave for disregarding Elrod and Shumway’s 1 medical opinions was not rational because it was based on legal error. See Masters v. Saul, 2 No. 217-CV-00905-JAD-BNW, 2019 WL 5549229, at *2 (D. Nev. Oct. 28, 2019) (holding 3 it was not rational for the ALJ to disregard symptom testimony and certain medical 4 records). 5 Had the ALJ not improperly discounted Elrod’s opinion, he may have found Carlisle 6 disabled because Elrod opined Carlisle would be “off task greater than 21 percent of an 8- 7 hour workday.”2 (AR 484–85.) The vocational expert at the hearing testified someone with 8 Carlisle’s limitations who was off-task greater than 21 percent of an eight-hour workday 9 would be unable to perform any work in the national economy. (See AR 54–55.) The court 10 therefore cannot “confidently conclude” this error was “inconsequential to the ultimate 11 nondisability determination” and declines to find it harmless. Id. 12 C. The ALJ’s Evaluation of Carlisle’s Symptom Testimony 13 Carlisle testified at length about his psychiatric symptoms’ effects on his ability to 14 sustain full time employment. (See AR 42–53.) He described how in the months leading 15 up to his disability onset date in November 2020, his mental health took “a massive 16 downturn” to the point he could barely work and he became “horribly suicidal [and] 17 massively self-harming to the point where [he] had to check [him]self into a psychiatric 18 facility to prevent [him]self from committing suicide.” (AR 42–43.) Carlisle “did not 19 improve even after” his stay at the psychiatric facility and left his job after realizing he was 20 “not able to work anymore.” (AR 43.) Carlisle described how in a typical day he basically 21 “sit[s] around and pretty much do[es] nothing and then go[es] back to bed at the end of the 22 day.” (AR 47.) He does not make himself food, struggles with personal care, and does not 23 do chores, shop for groceries, or go for walks. (AR 47–49.) Carlisle testified to continuing 24 to have “very bad problems with cutting [him]self” and “wish[ing] [he] was dead.” (AR 25 52, 53.) 26 The ALJ recognized that Carlisle—in his symptom testimony and in the medical 27 2 The ALJ’s findings may also have been different if he had not improperly discounted 28 Shumway’s opinion. Shumway opined Carlisle would be off task 16–20 percent of an eight-hour workday. (AR 541.) 1 records—“report[ed] numerous symptoms including, but not limited to difficulty 2 completing tasks, difficulty focusing, lack of energy, crying spells, difficulty sleeping, 3 nightmares and self-isolation.” (AR 25.) But the ALJ ultimately found Carlisle’s “reported 4 symptoms” were “not as limiting as [he] alleged.” (AR 24.) The ALJ based his reasoning 5 on three key factors: (1) Carlisle’s reports that his medications were effective, (2) the 6 inconsistency between his daily activities and his alleged symptoms, and (3) the 7 discrepancy between his alleged symptoms and his “largely normal mental status 8 examinations.” (AR 23–24.) 9 When a claimant has presented objective medical evidence of an underlying 10 impairment which could reasonably be expected to cause the severity of the symptoms 11 alleged and there is no evidence of malingering, an ALJ may only reject subjective 12 symptom-severity testimony by offering “specific, clear and convincing reasons for doing 13 so.” Revels v. Berryhill, 874 F.3d 648, 655 (9th Cir. 2017) (quoting Garrison v. Colvin, 14 759 F.3d 995, 1014–15 (9th Cir. 2014)). Such findings are sufficiently specific when they 15 permit a reviewing court to conclude the ALJ “did not arbitrarily discredit [a] claimant’s 16 testimony.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (simplified), 17 superseded on other grounds by 20 C.F.R § 404.1502(a). The ALJ did not find that Carlisle 18 was malingering. So, the ALJ could only discredit his symptom testimony by providing 19 “specific, clear and convincing” reasons for doing so. Revels, 874 F.3d at 655 20 Contradictions between a claimant’s symptom testimony and his daily activities 21 provide a valid ground for discounting his symptom testimony. See Molina v. Astrue, 674 22 F.3d 1104, 1113 (9th Cir. 2012) (“Even where [daily] activities suggest some difficulty 23 functioning, they may be grounds for discrediting the claimant’s testimony to the extent 24 that they contradict claims of a totally debilitating impairment”), superseded on other 25 grounds by 20 C.F.R. § 404.1502(a). But in considering daily activities to discount a 26 claimant’s symptom testimony, the ALJ must conduct a “transferability” and 27 “substantiality” analysis. That analysis requires an ALJ to consider whether a claimant can 28 spend a “substantial part” of his day “engaged in pursuits involving the performance of 1 physical functions that are transferable to a work setting.” Id. (citation omitted) (emphases 2 added). 3 Here, the ALJ did not indicate why the daily activities he cited contradicted 4 Carlisle’s testimony (see AR 23) and did not conduct a transferability or substantiality 5 analysis (see AR 23–24). The ALJ listed daily activities Carlisle reported such as watching 6 television, using a computer, and reading as examples of how his “allegations are 7 inconsistent with his own reports of daily functioning.” (AR 23.) Likewise, the ALJ 8 mentioned activities Carlisle reported doing occasionally like making sure his grandpa took 9 Alzheimer’s medication and driving only to the pharmacy and therapy appointments (AR 10 48–49)—but failed to link those activities to Carlisle’s alleged symptoms. See Dagley v. 11 Comm’r of Soc. Sec. Admin., No. CV-20-01370-PHX-JJT, 2022 WL 343382, at *6 (D. 12 Ariz. Feb. 4, 2022) (noting the court could not meaningfully review the ALJ’s daily 13 activities analysis because the ALJ did not tie them to any of the claimant’s symptoms). In 14 doing so, the ALJ did not mention what alleged symptom testimony these activities 15 contradict, nor whether any of them took up a “substantial part” of Carlisle’s day. (See AR 16 23–24.) The failure to make those findings here was error. See Molina, 674 F.3d at 1113. 17 The Commissioner argues ALJs may rely on daily activities that do not meet the 18 threshold for transferable work skills when they “contradict a claimant’s statements about 19 her symptoms,” but the single case he relies on is inapposite. (Doc. 14 at 15 (citing Smartt 20 v. Kijakazi, 53 F.4th 489, 497 (9th Cir. 2022).) In Smartt, the claimant “repeatedly testified 21 that she had not driven since her neck surgery in 2015” but admitted on a daily activities 22 questionnaire in 2016 “that she routinely drove a car.” Id. The ALJ pointed to no such 23 contradiction between Carlisle’s daily activities and his testimony and the Commissioner 24 does not identify one on appeal. It was therefore legal error for the ALJ to rely on Carlisle’s 25 daily activities to discount his symptom testimony. The Commissioner does not argue such 26 an error was harmless and the court is not confident the error was inconsequential to the 27 ALJ’s nondisability determination. See Marsh, 792 F.3d at 1173. 28 The ALJ also committed errors in the way he considered the effectiveness of 1 Carlisle’s treatment and purportedly normal cognitive findings in the record as reasons to 2 discount Carlisle’s symptom testimony. Crucially, the Ninth Circuit “ha[s] emphasized 3 while discussing mental health issues [that] it is error to reject a claimant’s testimony 4 merely because symptoms wax and wane in the course of treatment.” Garrison, 759 F.3d 5 at 1017. That is precisely the sort of analysis the ALJ engaged in here. (See AR 23–24.) 6 Carlisle’s treatment records showed that any improvements he experienced were short- 7 lived. (See AR 414, 421, 505, 495, 564.) And the ALJ’s reliance on normal cognitive 8 findings are inapposite as they do not relate to Carlisle’s psychiatric symptoms and 9 diagnoses. See Bogner v. Comm’r of Soc. Sec. Admin., No. CV-22-01908-PHX-DMF, 2023 10 WL 4734120, at *5 (D. Ariz. July 25, 2023) (“As the Ninth Circuit has stated . . . cognitive 11 functioning is not necessarily inconsistent with allegations of depression and anxiety.”) 12 (citing Ghanim, 763 F.3d at 1164). The ALJ committed materially-harmful error in his 13 rejection of Carlisle’s symptom testimony. 14 D. Remand for Reconsideration 15 The court has discretion to remand a case for additional evidence or for an award of 16 benefits if an ALJ’s decision contains harmful error. McCabe v. Comm’r of Soc. Sec. 17 Admin., No. CV-22-00192 PHX DLR (CDB), 2023 WL 3080951, at *31 (D. Ariz. Apr. 4, 18 2023), report and recommendation adopted, No. CV2200192-PHX-DLR-CDB, 2023 WL 19 3078661 (D. Ariz. Apr. 25, 2023). Carlisle argues his case should be remanded for an award 20 of disability benefits. (Doc. 10 at 24.) The Ninth Circuit has devised a “credit-as-true” 21 standard for an award of benefits where (1) the court asks whether the ALJ “has failed to 22 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or 23 medical opinion”; (2) if so, whether the record has been “fully developed” and “further 24 administrative proceedings would serve no useful purpose”; and (3) if “no outstanding 25 issues remain and further proceedings would not be useful,” the court may credit the 26 improperly discredited evidence as true and find the claimant disabled on remand. 27 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1100–01 (9th Cir. 2014) (citing 28 Garrison, 759 F.3d at 1020) (internal quotations omitted). 1 The ALJ failed to provide legally sufficient reasons for rejecting Carlisle’s || testimony and rejecting the treating providers’ medical opinions. The ALJ based his nondisability determination on a step five finding that Carlisle could perform jobs that 4|| existed in significant numbers in the national economy. (AR 27.) After reconsidering Elrod 5 || and Shumway’s medical opinions and Carlisle’s symptom testimony, this finding may 6|| change. There are thus outstanding issues which would make further proceedings useful and the case is remanded for further administrative proceedings. 8 Accordingly, 9 IT IS ORDERED vacating the decision of the ALJ and remanding for further 10 || administrative proceedings. 11 IT IS FURTHER ORDERED directing the Clerk to enter final judgment consistent with this Order and close this case. 13 Dated this 4th day of February, 2025. 14

16 □□ LA We Cet Honorable Krissa M. Lanham 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28

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