Henry v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: March 31, 2022
• Docket: 4:20-cv-00320
• Status: Unknown

Opinion

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

9 Diane Maureen Henry, No. CV-20-00320-TUC-JGZ

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 16 Pending before the Court is a Report and Recommendation (R&R) issued by United 17 States Magistrate Judge D. Thomas Ferraro. (Doc. 35.) Judge Ferraro recommends 18 affirming the Social Security Commissioner’s final decision denying Plaintiff benefits. 19 Plaintiff filed an Objection, and the Commissioner filed a response. (Docs. 36, 37.) 20 After an independent review of parties’ briefing and the administrative record, the 21 Court will sustain Plaintiff’s Objection in part, adopt Judge Ferraro’s recommendation in 22 part, reverse the Commissioner’s final decision, and remand for further proceedings 23 consistent with this Order. 24 STANDARD OF REVIEW 25 When reviewing a magistrate judge’s R&R, this Court “may accept, reject, or 26 modify, in whole or in part, the findings or recommendations made by the magistrate 27 judge.” 28 U.S.C. § 636(b)(1). “[T]he district judge must review the magistrate judge’s 28 findings and recommendations de novo if objection is made, but not otherwise.” United 1 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in 2 original). District courts are not required to conduct “any review at all . . . of any issue that 3 is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also 28 4 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Further, a party is not entitled as of right to de novo 5 review of evidence or arguments which are raised for the first time in an objection to the 6 report and recommendation, and the Court’s decision to consider newly-raised arguments 7 is discretionary. Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002); United States v. Howell, 8 231 F.3d 615, 621-22 (9th Cir. 2000). 9 BACKGROUND 10 The parties do not object to the Magistrate Judge’s summary of the factual and 11 procedural background. (Doc. 35 at 1-35.) Therefore, the Court does not restate the facts 12 here and instead includes the relevant facts in its discussion of the issues presented. 13 DISCUSSION 14 Plaintiff asserts the two arguments she raised before the Magistrate Judge. The 15 Court will address the arguments in turn.1 16 I. ALJ’s Rejection of Opinions of Plaintiff’s Treating Physician 17 Plaintiff asserts that the ALJ committed materially harmful error by rejecting 18 Plaintiff’s treating physician’s opinions without providing specific and legitimate reasons 19 based on substantial evidence in the record as a whole, because the vocational expert 20 testified without contestation that the limitations the physician assessed would make it 21 impossible to perform any sustained work. (Doc. 36 at 2.) 22 The Magistrate Judge concluded, as did the ALJ, that two opinions of Plaintiff’s 23 treating physician, Dr. Cubillo, were too conclusory and brief to be accepted. 2 (Doc. 35 at

24 1 The Court acknowledges the appropriate standard of review of the Commissioner’s final decision is that set forth in the R&R. (Doc. 35 at 7-8.) 25 2The ALJ rejected these opinions on the additional grounds that Dr. Cubillo did not include an assessment of the onset date for when the claimant would have first had the 26 indicated limitations, or any specific 12-month period to satisfy the durational requirement of the Act. (Doc. 35 at 10.) Magistrate Judge Ferraro found the ALJ erred in rejecting Dr. 27 Cubillo’s opinions on these grounds. (Doc. 35 at 12.) No party has objected to this conclusion and, therefore, the Court will not conduct further review of it. See Thomas, 474 28 U.S. at 149 (noting district court not required to conduct any review of an issue not subject to an objection). 1 11; Doc. 22-3 at 22-23.) Dr. Cubillo’s assessment of the effects that pain would have on 2 Plaintiff’s ability to function in the workplace was provided in the form of a check-off box 3 questionnaire. (Doc. 22-12 at 152.) One question asked, “How often is your patient’s 4 experience of pain sufficiently severe to interfere with attention and concentration?” (Id.) 5 Plaintiff’s physician checked the box, “Often.” (Id.) Another question asked, “To what 6 degree does your patient experience deficiencies of concentration, persistence or pace 7 resulting in failure to complete tasks in a timely manner (in work settings or elsewhere)?” 8 (Id.) Plaintiff’s physician checked the box, “Often.” (Id.) The Magistrate Judge concluded 9 that the ALJ properly rejected these opinions. (Doc. 35 at 10-11.)3 10 The Court finds no error in the rejection of these opinions. As thoroughly explained 11 by the Magistrate Judge, the opinions were conclusory, brief, and unsupported by objective 12 medical findings. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 13 2004) (“[A]n ALJ may discredit treating physicians’ opinions that are conclusory, brief, 14 and unsupported by the record as a whole or by objective medical findings.”) The ALJ 15 cited the applicable law, stating that check-box opinions may be rendered not persuasive if 16 they are not supported by “objective evidence.” (Doc. 22-3 at 22-23.) After review of the 17 record, the ALJ properly concluded, as the Magistrate Judge found, that the “record 18 includes such an unsupported fill-in form.” (Doc. 22-3 at 23.) 19 Plaintiff argues that the R&R rationale is error because the degree of a claimant’s 20 limitations need not be supported by the claimant’s medical records. (Doc. 36 at 3.) 21 According to Plaintiff: 22 [T]he primary purpose of medical records is not to document disability, and a physician, unlike an ALJ, is not required to provide specific citation for 23 each opinion, particularly those supported by the record as a whole.” 24 Sahlberg v. Comm’r. of Soc. Sec., No. CV-15-01815-PHX-JJT, 2017 WL 1130365, at *3 (D. Ariz. Mar. 27, 2017) (citing Orn v. Astrue, 495 F.3d 625, 25 3 The Magistrate Judge concluded that the first four opinions offered by Dr. Cubillo 26 were supported by the record and that the ALJ erred in rejecting these opinions. (Doc. 35 at 10-11; Doc. 22-12 at 152.) The Court will adopt Magistrate Judge’s determination as no 27 objection has been made to this conclusion. See Thomas, 474 U.S. at 149 (noting district court not required to conduct any review of an issue not subject to an objection). On 28 remand, the ALJ must accept these four opinions. 1 634 (9th Cir. 2007)). Cf. Trevizo v. Berryhill, 871 F.3d 664, 682 n.10 (9th Cir. 2017) (holding “the absence of medical records regarding alleged 2 symptoms is not itself enough to discredit a claimant’s testimony. See 3 Robbins, 466 F.3d at 883.”). 4 (Id. at 4.) Plaintiff contends the ALJ already recognized, “the claimant’s medically 5 determinable impairments could reasonably be expected to cause the alleged symptoms.” 6 (Id.) And, after finding the ALJ properly rejected Dr. Cubillo’s assessment because “the 7 medical records do not indicate the level to which the pain would interfere with Henry’s 8 attention and concentration,” the R&R acknowledges, “treatment records are not there to 9 provide evidence for disability,” ‘‘time-limited examinations do not correlate with 10 functioning in a work environment,” and “even that the ALJ misrepresented the record 11 because the record does not show that Henry[‘s] [examinations were] ‘grossly within 12 normal limits” as the ALJ asserts.” (Id. at 4-5; citing R&R, Doc. 35 at 11.) 13 The Court agrees with Plaintiff that “the primary purpose of medical records is to 14 promote communication and recordkeeping.” Orn, 495 F.3d at 634. However, a treating 15 physician’s conclusory opinions must be supported “by the record” or “objective medical 16 findings.” Batson, 359 F.3d at 1195; see also Orn, 495 F.3d at 634 (noting that a condition 17 does not need to be “mentioned in every report” but a “physician’s opinions [must be] 18 supported by the record”). Here, as stated above, the ALJ found that Dr. Cubillo’s opinions 19 regarding the degree of Plaintiff’s symptoms were not supported by objective medical 20 findings. Plaintiff fails to point to any objective medical findings that support Dr. Cubillo’s 21 check-box opinions. (Doc. 35 at 10.) 22 II. ALJ’s Rejection of Plaintiff’s Testimony 23 Plaintiff argues that the ALJ committed materially harmful error by rejecting 24 Plaintiff’s testimony in the absence of specific, clear, and convincing reasons supported by 25 substantial evidence in the record as a whole, because the limitations in Plaintiff’s symptom 26 testimony would make it impossible to perform any sustained work. (Doc 36 at 2.) 27 The Magistrate Judge agreed that the ALJ erred in rejecting Plaintiff’s testimony on 28 the grounds that it was not “entirely consistent with the medical evidence,” and because 1 of Plaintiff’s improvement in her condition and her daily activities. (Doc. 35 at 15-18.)4 2 The Magistrate Judge concluded, however, that the errors were harmless, because the ALJ 3 “properly relied on inconsistencies within [Plaintiff’s] statements for her adverse 4 credibility finding, such that the ultimate determination is supported by substantial 5 evidence.” (Doc. 35 at 18.) 6 The Court agrees with the Magistrate Judge that the ALJ erred in discounting 7 Plaintiff’s testimony as not “entirely consistent with the medical evidence.” A claimant is 8 not required to produce “objective medical evidence of [their symptoms], or the severity 9 thereof.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). Nor is an ALJ allowed to 10 discredit testimony “as not supported by medical evidence in the record.” Bruce v. Astrue, 11 557 F.3d 1113, 1116 (9th Cir. 2009). By requiring Plaintiff’s testimony to be “entirely 12 consistent” with the medical evidence and other evidence, and rejecting it as unsupported 13 by the record, the ALJ erred by holding Plaintiff to a much higher standard than what is 14 required by the foregoing principles. See Lacy v. Comm’r of Soc. Sec. Admin., 2020 WL 15 1285948, *1-2 (D. Ariz. Mar. 18, 2020) (“Plaintiff’s medical records did not need to fully 16 support the severity of her reported symptoms.” (emphasis in original)). 17 The Court, however, does not find support for the Magistrate Judge’s conclusion 18 that the ALJ also discounted Plaintiff’s testimony on the basis of Plaintiff’s own 19 inconsistent statements. The ALJ cited solely to Plaintiff’s medical records in making her 20 credibility determination and the R&R summarizes the ALJ’s rejection of Plaintiff’s 21 testimony based on the lack of support in the record. (See Doc. 35 at 16; Doc. 22-3 at 23- 22 24 (“the record does not document any durational work-related limitations”) (“no such 23 recommendation is documented in the record”) (“record documents no mental health 24 treatment . . .[or] any clinical assessments of any significant mental limitations”) (“the 25 undersigned finds no medical foundation”)). In fact, the ALJ ultimately cited the lack of 26 medical documentation as the basis for her credibility determination, concluding that

27 4 The Court will adopt the Magistrate Judge’s conclusions that the ALJ erred in discounting Plaintiff’s statements on these two bases as neither party objected to the 28 conclusions. See Thomas, 474 U.S. at 149 (noting district court not required to conduct any review of an issue not subject to an objection). 1 “claimant’s statements concerning the intensity, persistent and limiting effects of these 2 symptoms are not entirely consistent with the medical evidence and other evidence in the 3 record for the reasons explained in this decision.” (Doc. 22-3 at 25.) While an ALJ may 4 properly consider “inconsistencies in testimony or between testimony” when weighing 5 credibility, Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008), here, inconsistent 6 statements were not one of the basis on which the ALJ discounted Plaintiff’s testimony.5 7 The Court will “not affirm the ALJ on a ground upon which [she] did not rely.” Orn, 495 8 F.3d at 630; see Burrell v. Colvin, 775 F.3d 1133, 1139 (9th Cir. 2014) (declining to rely 9 on Commissioner’s purported reason for rejecting testimony because the ALJ “never stated 10 that he rested his credibility determination on those findings”). 11 Having rejected the Magistrate Judge’s conclusion that the ALJ found Plaintiff not 12 credible based on her alleged inconsistent statements, the Court will reverse the final 13 decision of the Commissioner. The ALJ’s stated reasons for discounting Plaintiff’s 14 testimony were legally erroneous and, if the ALJ were to fully credit Plaintiff’s testimony 15 as to the severity of her symptoms, the final decision could be different. See Ford v. Saul, 16 950 F.3d 1141, 1154 (9th Cir. 2020) (noting that the legal error must not be harmless to 17 warrant reversal). The Court declines to direct the Commissioner to issue benefits to 18 Plaintiff. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1100-02 (9th Cir. 19 2014) (describing the three elements necessary to satisfy the “rare circumstances” that 20 allow the court to depart from the ordinary remand rule). On remand, the Commissioner 21 must take actions consistent with this order. 22 III. Conclusion 23 For the foregoing reasons, IT IS ORDERED: 24 1. The Report and Recommendation (Doc. 35) is ADOPTED IN PART AND 25 REJECTED IN PART as set forth in this Order. 26 2. Plaintiff’s Objection to the Report and Recommendation (Doc. 36) is SUSTAINED

27 5 The Court also agrees with Plaintiff that the alleged inconsistencies in her testimony, as identified by the Magistrate Judge, would not provide a legitimate basis for discounting 28 Plaintiff’s testimony. (Doc. 36 at 7-8.) It is arguable whether the statements are inconsistent, and, even if they are, if they material to Plaintiff’s truthfulness. 1 IN PART AND OVERRULED IN PART. 2 3. The ALJ’s Decision, which became the Commissioner’s Final Decision, is 3 REVERSED. 4 4. This case is REMANDED to the Social Security Commissioner. On remand, the 5 Appeals Council shall remand this matter to the ALJ. The ALJ shall take any action 6 necessary for resolution of this matter, including conducting any necessary hearings 7 and take any new evidence. After any necessary proceedings, the ALJ shall issue a 8 new decision consistent with this Order. 9 5. The Clerk of the Court shall enter judgment accordingly, and close its file in this 10 action. 11 Dated this 31st day of March, 2022. 12 13 □ 14 pod Soya 15 ; Honorable Jennify Me Zfpps United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28

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