Gallagher v. Commissioner of Social Security Administration

Opinion

1 WO 2 3 4 5

9 Ashley Morgan Gallagher, No. CV-19-05766-PHX-MTL

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 At issue is the denial of Plaintiff Ashley Morgan Gallagher’s Application for 16 Disability Insurance benefits by the Social Security Administration (“SSA”). Plaintiff filed 17 a Complaint (Doc. 1) seeking judicial review of that denial, and the Court now addresses 18 Plaintiff’s Opening Brief (Doc. 13, “Pl. Br.”), Defendant’s Motion for Remand and 19 Response (Doc. 18, “Def. Br.”), Plaintiff’s Reply (Doc. 19, “Reply”), and Defendant’s 20 Reply in support of its Motion (Doc. 20, “Def. Reply”). For the following reasons, the 21 Court reverses the Administrative Law Judge’s (“ALJ”) decision and remands for a new 22 disability determination. 23 I. BACKGROUND 24 Plaintiff filed an Application for Supplemental Security Income benefits on 25 November 24, 2017 for a period of disability beginning on January 1, 2014. (R. at 17.) Her 26 claim was denied initially on March 1, 2018, and upon reconsideration on July 24, 2018. 27 (Id.) On February 1, 2019, Plaintiff appeared at a hearing before the ALJ. (R. at 17, 37– 28 87.) On May 6, 2019, the ALJ denied Plaintiff’s Application, and on October 11, 2019, the 1 Appeals Council denied Plaintiff’s Request for Review and adopted the ALJ’s decision as 2 the agency’s final decision. (R. at 1–3, 17–30.) 3 Upon considering the medical records and opinions, the ALJ evaluated Plaintiff’s 4 disability based on the following severe impairments: seizure disorder; 5 lumbosacral/cervical strain with mild scoliosis; post-traumatic stress disorder; bilateral 6 carpal tunnel syndrome; major depressive order; attention-deficit hyperactive disorder; and 7 anxiety disorder. (R. at 20.) The ALJ found that Plaintiff “does not have an impairment or 8 combination of impairments that meets or medically equals the severity of one of the listed 9 impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (R. at 20.) Next, the ALJ 10 calculated Plaintiff’s residual functional capacity (“RFC”): 11 [Plaintiff] had the [RFC] to perform sedentary work as defined in 20 CFR 404.1567(a). She could never have climbed ladders, 12 ropes, or scaffolds, and had to avoid occupational driving and hazards, including moving machinery, unprotected heights, 13 sharp objects, bodies of water and other liquids, and hot surfaces, like grills or cooktops. She was able to perform 14 simple, routine tasks in an environment free from fast-paced production rates, like those found in assembly line work, and 15 could have performed tasks where changes were infrequent and introduced gradually. 16 17 (R. at 22.) The ALJ found that Plaintiff can perform jobs that exist in significant numbers 18 in the national economy. (R. at 28.) Ultimately, the ALJ concluded that Plaintiff was not 19 disabled from the alleged disability onset-date through the date of the decision. (R. at 17.) 21 In determining whether to reverse an ALJ’s decision, the district court reviews only 22 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 23 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability 24 determination only if it is not supported by substantial evidence or is based on legal error. 25 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is relevant evidence 26 that a reasonable person might accept as adequate to support a conclusion considering the 27 record as a whole. Id. To determine whether substantial evidence supports a decision, the 28 Court must consider the record as a whole and may not affirm simply by isolating a 1 “specific quantum of supporting evidence.” Id. (citation omitted). Generally, “[w]here the 2 evidence is susceptible to more than one rational interpretation, one of which supports the 3 ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 4 954 (9th Cir. 2002) (citations omitted). 5 To determine whether a claimant is disabled for purposes of the Act, the ALJ 6 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 7 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 8 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 9 the claimant is presently engaging in substantial gainful activity. 20 10 C.F.R. § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a 11 “severe” medically determinable physical or mental impairment. Id. § 404.1520(a)(4)(ii). 12 At step three, the ALJ considers whether the claimant’s impairment or combination of 13 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 14 of 20 C.F.R. Part 404. Id. § 404.1520(a)(4)(iii). If so, the claimant is automatically found 15 to be disabled. Id. At step four, the ALJ assesses the claimant’s RFC and determines 16 whether the claimant is still capable of performing past relevant work. 17 Id. § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and final step, where she 18 determines whether the claimant can perform any other work in the national economy 19 based on the claimant’s RFC, age, education, and work experience. 20 Id. § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 22 Plaintiff raises two issues for the Court’s consideration. First, Plaintiff argues that 23 the ALJ incorrectly discounted Plaintiff’s symptom testimony. (Pl. Br. at 1, 11–20.) 24 Second, Plaintiff argues that the ALJ erred when calculating Plaintiff’s RFC because the 25 ALJ did not correctly consider relevant medical opinions. (Id. at 1, 21–22.) Plaintiff 26 contends that in light of these errors, the Court should apply the “credit-as-true” rule and 27 remand for an award of benefits. (Id. at 22–23.) Defendant concedes that remand is 28 appropriate, but requests the Court remand so that the ALJ can make a new disability 1 determination. (Def. Br. at 1.) For the following reasons, the Court reverses and remands 2 for a new disability determination. 3 A. Plaintiff’s Symptom Testimony 4 Plaintiff first contends that the ALJ erred in rejecting her symptom testimony. (Pl. 5 Br. at 11–20.) An ALJ performs a two-step analysis to evaluate a claimant’s testimony 6 regarding pain and symptoms. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). 7 First, the ALJ evaluates whether the claimant has presented objective medical evidence of 8 an impairment “which could reasonably be expected to produce the pain or symptoms 9 alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007) (quoting Bunnell 10 v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal quotation marks 11 omitted)). Second, absent evidence of malingering, an ALJ may only discount a claimant’s 12 allegations for reasons that are “specific, clear and convincing” and supported by 13 substantial evidence. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citation 14 omitted). This is the most demanding standard in Social Security cases. Garrison, 759 F.3d 15 at 1014–15. 16 The ALJ “must specifically identify the testimony she or he finds not to be credible 17 and must explain what evidence undermines the testimony.” Holohan v. Massanari, 246 18 F.3d 1195, 1208 (9th Cir. 2001). General findings are insufficient. Id. “[T]he ALJ may 19 consider inconsistencies either in the claimant’s testimony or between the testimony and 20 the claimant’s conduct.” Molina, 674 F.3d at 1112. For instance, the ALJ may consider 21 “whether the claimant engages in daily activities inconsistent with the alleged symptoms.” 22 Id. (quoting Lingenfelter, 504 F.3d at 1040). “Even where those activities suggest some 23 difficulty functioning, they may be grounds for discrediting the claimant’s testimony to the 24 extent that they contradict claims of a totally debilitating impairment,” id. at 1113, or where 25 they suggest that “later claims about the severity of [the] limitations were exaggerated,” 26 Valentine v. Astrue, 574 F.3d 685, 694 (9th Cir. 2009). Additionally, the ALJ may consider 27 “whether the claimant takes medication or undergoes other treatment for the symptoms.” 28 Lingenfelter, 504 F.3d at 1040; see also 20 C.F.R. § 404.1529(c)(3). The ALJ may properly 1 consider that the medical record lacks evidence to support certain symptom testimony, but 2 that cannot form the sole basis for discounting the testimony. Burch v. Barnhart, 400 F.3d 3 676, 681 (9th Cir. 2005). 4 Here, the ALJ found that “[Plaintiff’s] medically determinable impairments could 5 reasonably be expected to cause the alleged symptoms; however, [Plaintiff’s] statements 6 concerning the intensity, persistence and limiting effects of these symptoms are not entirely 7 consistent with the medical evidence and other evidence in the record for the reasons 8 explained in this decision.” (R. at 23.) Plaintiff contends that the ALJ simply summarized 9 portions of her medical record in rejecting Plaintiff’s symptom testimony without tying in 10 any particular symptom testimony. (Pl. Br. at 14–15.) The Court agrees. The ALJ simply 11 stated that the medical evidence is not consistent with Plaintiff’s symptom testimony 12 because Plaintiff’s treatments primarily consisted of outpatient visits and medications. (R. 13 at 23.) The ALJ also noted that the medical evidence does not reveal an increase in 14 Plaintiff’s symptoms, but the analysis did not extend beyond these statements. (Id.) 15 Defendant argues that Plaintiff’s claims of a seizure disorder are not supported by medical 16 evidence because Plaintiff had no positive electroencephalogram (“EEG”) tests and 17 Plaintiff had a normal MRI. (R. at 906, 1459, 1733, 1743, 1759, 1777; Def. Br. at 10.) The 18 ALJ never made such an assertion, however, and Defendant uses this argument to further 19 reinforce its argument for remand, which the Court will discuss in more detail below. 20 The ALJ’s discussion of Plaintiff’s activities of daily living is also insufficient. The 21 ALJ specifically noted that Plaintiff was able to work part-time while attending school part- 22 time, which was asserted as evidence of her ability to take part in various physical 23 activities. (R. at 23, 49, 51, 69–70.) Plaintiff points out that the ALJ did not note that she 24 only completed one semester of school because of her seizures and memory issues. (R. at 25 49; Pl. Br. at 17.) At the hearing, Plaintiff described that in addition to the seizures and 26 memory issues, she had to stop attending classes and to quit her job because the seizures 27 made her very tired, she could not concentrate, had no energy, would easily get confused, 28 had headaches, and her body was sore. (R. at 52, 58.) The other two activities of daily 1 living on which the ALJ relied are that Plaintiff still drives and that she lived alone at 2 various times during the relevant period. (R. at 23.) That said, Plaintiff testified that she 3 can tell when she is about to have a seizure, in which case she can pull over her car. (R. at 4 47–48, 55, 60.) Plaintiff also explained, and the ALJ noted, that she frequently talks with 5 her mother and brother. (R. at 23, 790.) The Court agrees with Plaintiff that the ALJ did 6 not sufficiently explain how living on her own invalidates her symptom testimony. (Pl. Br. 7 at 18.) The Court finds the ALJ did not provide “specific, clear and convincing” reasons 8 supported by substantial evidence for rejecting Plaintiff’s symptom testimony. Molina, 674 9 F.3d at 1112. 10 B. Plaintiff’s RFC 11 Plaintiff’s opening brief also argues that the ALJ erred in calculating the RFC. She 12 states that the ALJ did not rely on any of the medical opinions in the record to determine 13 Plaintiff’s RFC (R. at 22.) Defendant responded this argument in one footnote stating that 14 it was “fundamentally flawed” because an RFC is not a medical finding, but rather an 15 “administrative finding assessed solely by the ALJ.” (Def. Br. at 2–3.) The Court does not 16 find Defendant’s footnote to be an adequate response to Plaintiff’s arguments, especially 17 given Plaintiff’s references to various medical opinions. (See LRCiv 16.1(b) (“Defendant’s 18 brief must . . . respond specifically to each issue raised by Plaintiff . . . .”) (emphasis 19 added)). Therefore, the Court need not address this issue. Because Defendant did not 20 adequately address whether the ALJ erred in calculating Plaintiff’s RFC, Defendant 21 indicates its concession to Plaintiff’s arguments. See Trejo v. Mukasey, 2009 WL 22 10707323, *5 (D. Ariz. 2009) (“Plaintiff’s failure to address the argument indicates her 23 acquiescence to the claims’ dismissal.”) (citing LRCiv 7.2(i)). 24 C. Scope of Remand 25 The remaining issue is the scope of the remand. Plaintiff seeks a remand for an 26 award of benefits. Defendant argues that remand for a new disability determination is 27 appropriate both because the issue of whether Plaintiff has a seizure disorder is unresolved 28 and there is doubt as to whether Plaintiff is disabled. (Def. Br. at 2.) The Court finds that 1 although there are no unresolved issues, there is doubt as to whether Plaintiff is disabled. 2 The Court does not agree with Defendant that there is an unresolved issue as to 3 whether Plaintiff has a seizure disorder. Defendant argues that although Plaintiff claims 4 that her most severe impairment is her alleged seizures, her doctors “are not in agreement 5 with what type of seizure Plaintiff is in fact experiencing, if any, and Plaintiff has refused 6 needed treatment that might shed light on her condition.” (Def. Br. at 13.) As Defendant 7 notes, doctors repeatedly recommended that Plaintiff take part in a prolonged EEG test to 8 properly assess her seizures. (R. 921–24, 1733, 1763, 1897, 2005, 2546.) Plaintiff never 9 completed the prolonged EEG test. (R. at 63, 1921.) Defendant also points out that 10 noncompliance with recommended treatment is frequent in Plaintiff’s medical records. (R. 11 at 1810, 1841, 1850, 1891, 1896, 1901, 1908, 1972, 1979, 1981, 2322.) Plaintiff also does 12 not take medication for her seizures, as she states because the medication made her angry, 13 tired, or depressed. Plaintiff currently uses CBD oil to treat the side effects of her seizures. 14 (R. at 56–57.) 15 Nonetheless, the ALJ determined that Plaintiff has a seizure disorder. (R. at 20.) 16 During the hearing, the ALJ asked Plaintiff where evidence of seizures came from, and 17 Plaintiff’s attorney responded that the evidence was based on Plaintiff’s testimony. (R. at 18 42.) The ALJ responded “Okay, so not supported in the record?” and Plaintiff’s attorney 19 responded, “Yeah.” (Id.) At the hearing, the ALJ asked Plaintiff how many partial seizures 20 she had. Plaintiff did not know and said she was still “learning exactly what those are.” (R. 21 at 72–73.) The ALJ asked Plaintiff if she knew when she was having a partial seizure or 22 simple seizure, and the Plaintiff said she did not and she “still need[s] to get more 23 information and training.” (R. at 74.) The ALJ concluded that this was sufficient 24 information to determine that Plaintiff has a seizure disorder. There are accordingly no 25 “unresolved” issues, notwithstanding Defendant’s disagreement with the conclusion. 26 Defendant also argues that remand for further proceedings is appropriate because 27 there is uncertainty as to whether Plaintiff is disabled. When a claimant moves to remand 28 for an award of benefits, as Plaintiff has done, the claimant must meet the “credit-as-true” 1 rule. The credit-as-true rule applies “only in rare circumstances.” Treichler v. Comm’r of 2 Soc. Sec. Admin., 775 F.3d 1090, 1100 (9th Cir. 2014). (internal citations omitted). It 3 applies when three elements are present. Id. at 1099–1102. First, the ALJ must have failed 4 to provide legally sufficient reasons for rejecting medical evidence. Id. at 1100. Second, 5 the record must be fully developed, there must be no outstanding issues that must be 6 resolved before a determination of disability can be made, and the Court must find that 7 further administrative proceedings would not be useful. Id. at 1101. Third, if the above 8 elements are met, the Court may “find[] the relevant testimony credible as a matter of 9 law . . . and then determine whether the record, taken as a whole, leaves ‘not the slightest 10 uncertainty as to the outcome of [the] proceeding.’” Id. (citations omitted). Even if the 11 credit-as-true elements are met, remand for further proceedings—as opposed to for an 12 award of benefits—is appropriate if the record reflects “serious doubt” that the claimant is 13 disabled. See Burrell v. Colvin, 775 F.3d 1133, 1141 (“[W]e need not determine whether 14 the three preliminary requirements are met because, even assuming that they are, we 15 conclude that the record as a whole creates serious doubt as to whether Claimant is, in fact, 16 disabled.”). 17 Here, the first step of the credit-as-true test is met. As described above, the ALJ 18 erred by rejecting Plaintiff’s symptom testimony (as well as in calculating her RFC). 19 Nonetheless, the second and third steps of the credit-as-true test are not met. Additional 20 proceedings would be useful to determine whether Plaintiff is disabled, and, even taking 21 the relevant testimony as credible, more than the “slightest uncertainty” exists as to the 22 outcome of this proceeding. Relatedly, the Court finds that there is “serious doubt” as to 23 whether Plaintiff is disabled. Garrison, 759 F.3d at 1021. Plaintiff does not manage her 24 pain with seizure medication. (R. at 1652.) She has also refused to complete a prolonged 25 EEG test, as recommended by her physicians. (R. at 1921.) Plaintiff also continues to drive, 26 despite being counseled not to. (R. at 47, 1733, 1980.) The issue of whether she is truly 27 unable to work is also unresolved. See Warre, 439 F.3d at 1006 (When a condition can be 28 controlled with medication it is not disabling for the purpose of determining eligibility for || Social Security Insurance benefits.); Lewis, 236 F.3d at 513 (“A claimant’s impairment 2|| does not meet the epilepsy listing unless it ‘persists despite the fact that the individual is || following prescribed anticonvulsive treatment.’”) (quoting 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.00A); see also Garrison, 759 F.3d at 1021 (“[C]ourts [must] remand for 5 || further proceedings when, even though all conditions of the credit-as-true rule are satisfied, 6|| an evaluation of the record as a whole creates serious doubt that a claimant is, in fact, disabled.”). Considering these circumstances, the Court applies the ordinary remand rule 8 || and will remand this matter to the ALJ for a new disability determination. IV. CONCLUSION 10 Accordingly, 11 IT IS ORDERED granting Defendant’s Motion to Remand (Doc. 18). 12 IT IS FURTHER ORDERED that the final decision of the Social Security 13 || Commissioner is vacated and this matter is remanded to the Social Security Administration 14|| for further proceedings consistent with the Order. 15 IT IS FINALLY ORDERED directing the Clerk to enter judgment accordingly and close this case. 17 Dated this 4th day of November, 2020. 18 i WMichak T. Shure 20 Michael T. Liburdi 7] United States District Judge 22 23 24 25 26 27 28

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