Fairbank v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: May 18, 2023
• Docket: 2:22-cv-00936
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8

Tony Ta lmage Fairbank, ) No. CV-22-00936-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) Commissioner of Social Security ) 12 Administration, ) 13 ) ) 14 Defendant. )

15 Plaintiff Tony Talmage Fairbank seeks judicial review of the denial of his 16 application for Social Security Disability Insurance and Supplemental Security Income 17 under the Social Security Act, 42 U.S.C. § 405(g). Before the Court are Plaintiff’s 18 Opening Brief (Doc. 14), Defendant Commissioner of Social Security Administration’s 19 Answering Brief (Doc. 15), Plaintiff’s Reply Brief (Doc. 18), and the Administrative 20 Record (Doc. 11). Upon review, the Court vacates the Administrative Law Judge’s 21 decision and remands for further proceedings consistent with this Order (AR 51–65).1 22 I. BACKGROUND 23 Plaintiff filed a Title II application for disability insurance benefits and a Title 24 XVI application for supplemental security income on November 16, 2018, for a period of 25 disability beginning on September 1, 2018. (AR 54). Plaintiff testified at an 26 administrative hearing on August 19, 2020 (AR 20–50), after which the Administrative 27

28 1 Administrative Record (see Doc. 11). 1 Law Judge (“ALJ”) found Plaintiff was not disabled (AR 51–65). On October 20, 2021, 2 the Appeals Council denied Plaintiff’s request for review and adopted the ALJ’s decision 3 as the agency’s final decision. (AR 9–11). 4 The Court has reviewed the medical evidence in its entirety and will discuss the 5 pertinent medical evidence in addressing the issues raised by the parties. Upon 6 considering the medical records and opinions, the ALJ evaluated Plaintiff’s disability 7 based on the following medically determinable impairments: multiple sclerosis, major 8 depressive disorder, and attention deficit hyperactivity disorder (“ADHD”). (AR 57). 9 Ultimately, the ALJ concluded that Plaintiff “has not been under a disability within the 10 meaning of the Social Security Act from September 1, 2018, through the date of this 11 decision.” (AR 55). 12 II. LEGAL STANDARD 13 A person is considered “disabled” for the purpose of receiving social security 14 benefits if he is unable to “engage in any substantial gainful activity by reason of any 15 medically determinable physical or mental impairment which can be expected to result in 16 death or which has lasted or can be expected to last for a continuous period of not less 17 than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Social Security Administration’s 18 decision to deny benefits should be upheld unless it is based on legal error or is not 19 supported by substantial evidence. Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 20 (9th Cir. 2008). “Substantial evidence is more than a mere scintilla but less than a 21 preponderance.” Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citation 22 omitted). “Where evidence is susceptible to more than one rational interpretation, the 23 ALJ’s decision should be upheld.” Trevizo v. Berryhill, 871 F.3d 664, 674–75 (9th Cir. 24 2017). The Court “must consider the entire record as a whole, weighing both the evidence 25 that supports and the evidence that detracts from the Commissioner’s conclusion, and 26 may not affirm simply by isolating a specific quantum of supporting evidence.” Id. at 27 675. The Court reviews “only the reasons provided by the ALJ in the disability 28 determination and may not affirm the ALJ on a ground upon which [she or] he did not 1 rely.” Id. The Court will not reverse for an error that is “inconsequential to the ultimate 2 nondisability determination” or where the ALJ’s “path may reasonably be discerned, 3 even if the [ALJ] explains [his] decision with less than ideal clarity.” Treichler v. 4 Comm’r of Soc. Sec., 775 F.3d 1090, 1099 (9th Cir. 2014) (citing Alaska Dep’t of Env’t 5 Conservation v. E.P.A., 540 U.S. 461, 497 (2004)). 6 To determine whether a claimant is disabled for purposes of the Act, the ALJ 7 follows a five-step process. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 8 20 C.F.R. § 404.1520(a)). The claimant bears the burden of proof on the first four steps, 9 and the burden shifts to the Commissioner at step five. Id. At the first step, the ALJ 10 determines whether the claimant is presently engaging in substantial gainful activity. 20 11 C.F.R. § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a 12 “severe” medically determinable physical or mental impairment. 20 C.F.R. 13 § 404.1520(a)(4)(ii). At step three, the ALJ considers whether the claimant’s impairment 14 or combination of impairments meets or medically equals an impairment listed in 15 Appendix 1 to Subpart P of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the 16 claimant is automatically found to be disabled. Id. At step four, the ALJ assesses the 17 claimant’s residual functional capacity (“RFC”) and determines whether the claimant is 18 still capable of performing past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If not, the 19 ALJ proceeds to the fifth and final step, where she determines whether the claimant can 20 perform any other work in the national economy based on the claimant’s RFC, age, 21 education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If not, the claimant is 22 disabled. Id. 23 III. DISCUSSION 24 Plaintiff argues that the ALJ erred by (1) rejecting Plaintiff’s symptom testimony; 25 (2) discrediting the opinion of Dr. Adriana Weyer; and (3) identifying jobs incongruent 26 with his residual functional capacity determination in the step five analysis. The Court 27 finds that the ALJ erred with respect to the first two issues and therefore does not address 28 the third issue, as Plaintiff concedes that it is moot as a result. (Doc. 14 at 19). a. Plaintiff’s Symptom Testimony 1 An ALJ must perform a two-step analysis to determine the credibility of a 2 claimant’s pain and symptom testimony. Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 3 (9th Cir. 2007). First, the ALJ must determine whether the claimant has presented 4 objective medical evidence of an underlying impairment “which could reasonably be 5 expected to produce the pain or other symptoms alleged.” Id. at 1036. If the claimant 6 meets this burden and there is no evidence of malingering, the ALJ must provide 7 “specific, clear and convincing” reasons for rejecting the testimony. Id. at 1036. “The 8 ALJ must state specifically which symptom testimony is not credible and what facts in 9 the record lead to that conclusion.” Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) 10 (“To determine whether the claimant’s testimony regarding the severity of her symptoms 11 is credible, the ALJ may consider, for example: (1) ordinary techniques of credibility 12 evaluation, such as the claimant’s reputation for lying, prior inconsistent statements 13 concerning the symptoms, and other testimony by the claimant that appears less than 14 candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a 15 prescribed course of treatment; and (3) the claimant’s daily activities.”). 16 Here, the ALJ noted that Plaintiff “reported difficulty lifting, squatting, bending, 17 standing, reaching, walking, sitting, kneeling, climbing stairs, seeing, remembering 18 information, completing tasks, concentrating, understanding information, following 19 instructions, and using his hands.” (AR 60 (citation omitted)). The ALJ found that 20 Plaintiff’s “medically determinable impairments could reasonably be expected to cause 21 some of the alleged symptoms” but that his “statements concerning the intensity, 22 persistence and limiting effects of these symptoms are not entirely consistent with the 23 medical evidence and other evidence in the record for the reasons explained throughout 24 the decision.” (AR 60). 25 Initially, it is difficult to determine what evidence the ALJ relied on to specifically 26 reject Plaintiff’s symptom testimony, as is required, because the decision immediately 27 “drifts into a discussion of the medical evidence,” leaving the Court to sift through the 28 1 discussion and attempt to assess which sections specifically relate to the subjective 2 testimony. See Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014); Nelson v. Comm’r 3 of Soc. Sec. Admin., No. CV-19-08027-PCT-JZB, 2020 WL 1510332, at *3 (D. Ariz. 4 Mar. 30, 2020) (“Indeed, this Court has repeatedly rejected ALJ rationale that discussed 5 medical evidence but provided no connection between that discussion and rejection of 6 claimant’s symptom testimony.”). Defendant posits that the ALJ relied on contradictions 7 between Plaintiff’s daily activities and subjective complaints, the fact that Plaintiff’s 8 impairments responded well to treatment, and inconsistencies with the medical record. 9 (Doc. 15 at 5). 10 First, it does not appear that the ALJ found any contradictions between Plaintiff’s 11 daily activities and his symptom testimony. The ALJ’s discussion of Plaintiff’s activities 12 comes in a different section, preceding the one in which the ALJ discusses Plaintiff’s 13 symptom testimony, and more importantly, does not identify any inconsistencies between 14 those activities and Plaintiff’s reported symptoms. For example, the ALJ wrote: 15 The claimant is able to care for his personal care. . . . The claimant is able to clean his room and make his own bed. He 16 stated there are times that he receives assistance from his mother. The claimant is able to do some light gardening. He 17 is able to drive and he is able to shop for himself. The clamant stated he rarely engages in any household chores. At 18 the consultative examination, he stated he does not prepare his own meals or do his laundry. However, in his function 19 report, the claimant [said] he could prepare his own simple meals and do the laundry. Accordingly, the undersigned finds 20 the claimant has experienced a moderate limitation in adapting or managing oneself. 21 (AR 59 (citations omitted)). The ALJ described Plaintiff’s activities and noted an 22 inconsistency between his reports about his activities—because Plaintiff reported less 23 limitations in the function report he completed and submitted to the Social Security 24 Administration than were noted in the examining physician’s report. But the ALJ did not 25 identify any inconsistencies to discredit Plaintiff’s symptom testimony. Defendant’s 26 briefing attempts to draw contradictions between Plaintiff’s activities and his symptom 27 testimony, but the Court must “review the ALJ’s decision based on the reasoning and 28 1 factual findings offered by the ALJ—not post hoc rationalizations that attempt to intuit 2 what the adjudicator may have been thinking.” Bray v. Comm’r of Soc. Sec. Admin., 554 3 F.3d 1219, 1225 (9th Cir. 2009). There is no indication that the ALJ discredited 4 Plaintiff’s symptom testimony based on inconsistencies with his daily activities. 5 Second, the fact that Plaintiff reported to medical providers that medications 6 stabilized or improved his symptoms is not necessarily inconsistent with his symptom 7 testimony, and the ALJ did not explain whether or how they are inconsistent. To be sure, 8 as the ALJ noted, Plaintiff stated that medications “improved the spasms in his legs and 9 feet”; helped his gait; stabilized his ADHD; improved his mood and ability to focus; and 10 improved his memory, although “he stated he still had a hard time.” (AR 61). “But to 11 reject a claimant’s testimony, it is not enough for the ALJ to show that the [symptoms 12 were] responsive to treatment; the ALJ must show that the [symptoms were] ‘controlled,’ 13 i.e., no longer debilitating.” Lopez v. Colvin, 194 F. Supp. 3d 903, 911 (D. Ariz. 2016) 14 (quoting Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006)). 15 Moreover, “[o]bservations of improvement must be ‘read in context of the overall 16 diagnostic picture’ of an individual, and improvement in some symptoms does not 17 indicate nondisability under the Social Security Act.” Lizeth A. v. Comm’r of Soc. Sec., 18 No. 1:17-cv-03074-MKD, 2018 WL 4179097, at *5 (E.D. Wash. Aug. 7, 2018) (quoting 19 Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014)). The ALJ did not elaborate on 20 how Plaintiff’s improvement or stabilization related to his symptom testimony—and in 21 fact, it is not even clear that he relied on this as a reason for rejecting the testimony—nor 22 did he establish that Plaintiff’s symptoms as a whole are controlled such that Plaintiff is 23 not disabled. Thus, to the extent this was even a reason for the ALJ’s rejection of 24 Plaintiff’s symptom testimony, it is not a clear and convincing reason for discrediting his 25 testimony. 26 The last remaining reason is that Plaintiff’s symptom testimony is inconsistent 27 with the medical record—which is the only reason on which the ALJ clearly relied. (See 28 AR 61 (“As for the claimant’s statements about the intensity, persistence, and limiting 1 effects of his symptoms, they are inconsistent because the medical evidence does not 2 support them.”)). But this reason alone cannot suffice for discrediting subjective 3 symptom testimony. The Ninth Circuit has held that “once the claimant produces 4 objective medical evidence of an underlying impairment, [the ALJ] may not reject a 5 claimant’s subjective complaints based solely on a lack of objective medical evidence to 6 fully corroborate the alleged severity of pain.” Bunnell v. Sullivan, 947 F.2d 341, 345 7 (9th Cir. 1991) (emphasis added). This rule recognizes that “pain is a subjective 8 phenomenon,” and it “cannot be objectively verified or measured.” Id. (citation omitted). 9 Even assuming that Plaintiff’s symptom testimony was unsupported by the medical 10 evidence, then, it is insufficient support on its own to discredit the testimony. The Court 11 therefore finds that the ALJ erred in rejecting Plaintiff’s subjective symptom testimony. 12 b. Dr. Weyer’s Opinion In 2017, the SSA revised its regulations regarding the evaluation of medical 13 evidence. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. 14 Reg. 5844, 5844 (Jan. 18, 2017). Because Plaintiff filed her case after 2017, it is 15 governed by the new regulations. (AR 17). The ALJ was therefore not required to adhere 16 to a hierarchy of medical opinions. 20 C.F.R. § 404.1520c(a)–(b); see Woods v. Kijakazi, 17 32 F.4th 785, 790 (9th Cir. 2022). Rather, the ALJ meets her burden with respect to 18 medical opinions by articulating the persuasiveness of each opinion using factors set forth 19 in the regulations. Id. Supportability and consistency are the most important of these 20 factors, but ALJs may also consider the nature of the treatment relationship, the medical 21 source’s specialization, and “other factors that tend to support or contradict a medical 22 opinion.” 20 C.F.R. § 404.1520c(a)–(c). 23 Dr. Weyer, a counseling psychologist, examined Plaintiff on March 15, 2019 and 24 diagnosed him with moderate recurrent major depressive disorder and ADHD. (AR 432, 25 436). Following her examination, Dr. Weyer opined that Plaintiff is capable of 26 understanding and remembering simple and detailed instructions and procedures, though 27 his ADHD may moderately impact his ability to recall instructions; that Plaintiff is 28 1 capable of carrying out simple instructions; and that Plaintiff is not capable of 2 maintaining attention and concentration. (AR 437). She further opined that Plaintiff had 3 no limitations in social interaction or adapting to change. (AR 437). The ALJ concluded 4 that “[t]he opinion that the claimant had difficulty maintaining attention and 5 concentration is not consistent with or supported by the medical evidence.” (AR 62). The 6 ALJ explained: 7 The evidence does not show the claimant’s depression or AD[H]D impacted the claimant’s ability to focus. At his 8 appointments, the claimant took medication for his depression and ADHD. His ADHD was stable. At the consultative 9 examination, the claimant reported his memory was not good. Although he stated Adderall improved his memory, he stated 10 he still had a hard time. At multiple appointments, the claimant denied depression, difficulty making decisions, 11 difficulty concentrating, or memory loss. The claimant was able to follow multiple commands without difficulty. The 12 claimant was alert and oriented. 13 (AR 62 (citations omitted)). 14 First, as explained above, the facts that Plaintiff took medication and that his 15 ADHD was stable do not necessarily mean that Plaintiff was not disabled, nor do they 16 necessarily conflict with Dr. Weyer’s opinion that Plaintiff could not maintain attention 17 or concentration. Because the ALJ failed to explain how they are inconsistent, those facts 18 do not support the ALJ’s discrediting of Dr. Weyer’s opinion. Next, the ALJ recites 19 Plaintiff’s self-reported memory difficulties, which have no clear relation to Dr. Weyer’s 20 opinion regarding Plaintiff’s attention capability. Likewise, the ALJ’s last sentence— 21 noting that Plaintiff was alert and oriented according to several medical records, 22 including at a neurology appointment, an emergency room visit for a foot injury, and an 23 appointment for hand pain—bear no relation to Plaintiff’s ability to maintain attention. 24 (AR 62; see AR 465, 542, 635). 25 That leaves only the ALJ’s citations to medical records from Plaintiff’s 26 neurologists treating his multiple sclerosis that noted that Plaintiff denied a laundry list of 27 symptoms, including difficulty concentrating, and that he could follow multiple 28 1 commands without difficulty.2 (AR 62; see AR 450, 465, 494, 500). Even if those cursory 2 notes from physicians focused on other ailments and symptoms are a sufficient 3 inconsistency with Dr. Weyer’s opinion, the ALJ failed to provide any discussion of the 4 supportability factor—which requires consideration of “the objective medical evidence 5 and supporting explanations presented by a medical source . . . to support his or her 6 medical opinion(s).” 20 C.F.R. § 404.1520c(c)(1). The ALJ did not discuss whether Dr. 7 Weyer’s own examination and explanations supported her opinions.3 Thus, the ALJ 8 failed to satisfy the regulation’s requirement that Defendant “will explain how we 9 considered the supportability and consistency factors for a medical source’s medical 10 opinions . . . in your determination or decision,” and the decision must be vacated. 20 11 C.F.R. § 404.1520c(b)(2). 12 IV. CONCLUSION 13 Finding error in the ALJ’s evaluation and discussion of the evidence, this case will 14 be remanded. “The proper course, except in rare circumstances, is to remand to the 15 agency for additional investigation or explanation.” Treichler, 775 F.3d at 1099 (internal 16 quotation marks omitted). Plaintiff argues instead that the Court should apply the credit- 17 as-true rule and remand for calculation of benefits. One of the requisite conditions for 18 applying the credit-as-true rule, however, is that “the record has been fully developed and 19 further administrative proceedings would serve no useful purpose.” Garrison v. Colvin, 20 759 F.3d 995, 1020 (9th Cir. 2014). The Court finds that this case would benefit from 21 further administrative proceedings to develop and clarify the record. 22 23 2 The ALJ also cites to a medical record that makes absolutely no mention of Plaintiff’s concentration, instead describing a surgical procedure. (AR 62; see AR 482). 24 3 Defendant’s briefing cites to a different section of the ALJ’s decision—as well as 25 portions of Dr. Weyer’s report not even mentioned by the ALJ—when arguing that the ALJ discussed the supportability factor. (Doc. 15 at 13–14). In that section, which does 26 not mention Dr. Weyer’s opinion regarding Plaintiff’s ability to maintain attention and concentration, it is clear that the ALJ is merely conducting a step three analysis, not 27 “determin[ing] how persuasive” the ALJ found Dr. Weyer’s opinions or “explaining how [the ALJ] considered the supportability and consistency factors” in doing so. 20 C.F.R. § 28 404.1520c(b)(2). Accordingly, that discussion fails to satisfy the regulations. 1 IT IS THEREFORE ORDERED that the final decision of the Commissioner of 2| Social Security is vacated and remanded to the Commissioner of the Social Security 3 | Administration for further proceedings consistent with this order. 4 IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment 5 | accordingly and terminate this action. 6 Dated this 18th day of May, 2023. 7

9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28