1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Debbie Lee Lee, No. CV-21-0283-PHX-SMB
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 At issue is the denial of Plaintiff Debbie Lee Lee’s Application for Social Security 16 Disability Insurance (“SSDI”) benefits by the Social Security Administration (“SSA”) 17 under the Social Security Act (the “Act”). Plaintiff filed a Complaint, (Doc. 1), and an 18 Opening Brief, (Doc. 17), seeking judicial review of that denial. Defendant SSA filed an 19 Answering Brief, (Doc. 19), to which Plaintiff did not file a Reply. The Court has reviewed 20 the parties’ briefs, the Administrative Record, (Doc. 12), and the Administrative Law 21 Judge’s (“ALJ’s”) decision, (Doc. 12-3 at 11–32) and will vacate and remand the ALJ’s 22 decision for the reasons addressed herein. 23 I. BACKGROUND 24 Plaintiff filed an Application for SSDI benefits in November of 2017, alleging a 25 disability beginning in June of 2017. (Doc. 12-3 at 14.) Plaintiff’s claim was initially 26 denied in April of 2018. (Id.) A hearing was held before ALJ Patricia A. Bucci on May 27 21, 2020. (Id.) After considering the medical evidence and opinions, the ALJ determined 28 that Plaintiff suffered from the severe impairment of multilevel degenerative disc disease 1 status post lumbar fusion. (Doc. 12-3 at 18.) However, the ALJ concluded that, despite 2 this impairment, Plaintiff had the residual functional capacity (“RFC”) to perform light 3 work. (Id.) Consequently, Plaintiff’s Application was again denied by the ALJ on July 22, 4 2020. (Id. at 14.) Thereafter, the Appeals Council denied Plaintiff’s Request for Review 5 of the ALJ’s decision—making it the final decision of the SSA Commissioner (the 6 “Commissioner”)—and this appeal followed. (Doc. 17 at 2.) 7 II. LEGAL STANDARDS 8 An ALJ’s factual findings “shall be conclusive if supported by substantial 9 evidence.” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). The Court may set aside 10 the Commissioner’s disability determination only if it is not supported by substantial 11 evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 12 Substantial evidence is relevant evidence that a reasonable person might accept as adequate 13 to support a conclusion considering the record as a whole. Id. Generally, “[w]here the 14 evidence is susceptible to more than one rational interpretation, one of which supports the 15 ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 16 954 (9th Cir. 2002). In determining whether to reverse an ALJ’s decision, the district court 17 reviews only those issues raised by the party challenging the decision. See Lewis v. Apfel, 18 236 F.3d 503, 517 n.13 (9th Cir. 2001). 19 III. DISCUSSION 20 Plaintiff argues that the ALJ failed to properly evaluate Plaintiff’s symptom 21 testimony and in weighing the medical opinion evidence. (Doc. 17 at 1.) The 22 Commissioner argues that the ALJ’s opinion is supported by substantial evidence and is 23 free of legal error. (Doc. 19 at 7, 21.) The Court has reviewed the medical and 24 administrative records and remands for further proceedings. 25 A. Plaintiff’s Symptom Testimony 26 An ALJ performs a two-step analysis to evaluate a claimant’s testimony regarding 27 pain and symptoms. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). First, the 28 ALJ evaluates whether the claimant has presented objective medical evidence of an 1 impairment that “could reasonably be expected to produce the pain or symptoms alleged.” 2 Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007) (cleaned up). Second, 3 absent evidence of malingering, an ALJ may only discount a claimant’s allegations for 4 reasons that are “specific, clear and convincing” and supported by substantial evidence. 5 Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) superseded on other grounds by 20 6 C.F.R. § 404.1502(a). 7 “[T]he ALJ must specifically identify the testimony she or he finds not to be credible 8 and must explain what evidence undermines the testimony.” Holohan v. Massanari, 246 9 F.3d 1195, 1208 (9th Cir. 2001). General findings are insufficient. Id. “Although the 10 ALJ’s analysis need not be extensive, the ALJ must provide some reasoning in order for 11 [the Court] to meaningfully determine whether the ALJ’s conclusions were supported by 12 substantial evidence.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th 13 Cir. 2014). “[T]he ALJ may consider inconsistencies either in the claimant’s testimony or 14 between the testimony and the claimant’s conduct.” Molina, 674 F.3d at 1112. For 15 instance, the ALJ may consider “whether the claimant engages in daily activities 16 inconsistent with the alleged symptoms.” Id. (quoting Lingenfelter, 504 F.3d at 1040). 17 Plaintiff argues the ALJ’s findings were not substantially supported by the evidence 18 and the ALJ did not properly consider her symptom testimony. (Doc. 17 at 21.) The 19 Commissioner argues substantial evidence supports the ALJ’s finding that Plaintiff’s 20 statements concerning her symptom intensity, persistence, and limiting effects were 21 partially inconsistent with the medical evidence and record. (Doc. 29 at 22.) 22 Here, the ALJ found that Plaintiff’s medically determinable impairments could 23 reasonably be expected to cause the alleged symptoms. However, the ALJ found Plaintiff’s 24 statements concerning the intensity, persistence, and limiting effects of these symptoms 25 were not entirely consistent with medical and other evidence. The ALJ found the objective 26 evidence conflicted with Plaintiff’s testimony that her pain was so severe that she was 27 unable to work in any capacity, unable to drive, needed encouragement to do household 28 chores, did not socialize, had difficulty sleeping, had an inability to cook, became 1 overwhelmed from written or spoken instructions, and required assistance to put on socks, 2 shoes, and use the toilet. (Doc. 12-3 at 21.) 3 The ALJ describes the objective medical findings in the following ways: (1) they 4 sometimes conflicted, but generally showed limited motion in Plaintiff’s spine; (2) some 5 providers noted an antalgic gait while others noted a normal gait; (3) Plaintiffs at times had 6 4/5 strength in her hips, knees, and ankles and full 5/5 strength above her elbows, wrists, 7 and bilateral legs; (4) Plaintiff had reflexes of 2/4 upon diagnosis; and (5) Plaintiff had 8 occasional decreased pinprick and vibration in her bilateral lower extremities. (Id.) 9 Therefore, the ALJ determined the objective medical evidence was consistent with a light 10 work RFC that limited standing and walking to four hours in an eight-hour workday. (Id.) 11 The ALJ next considered Plaintiff’s course of treatment. The ALJ notes that 12 Plaintiff’s treatment consisted of lumbar epidural injections, a TENS unit, physical therapy, 13 massages, acupuncture, and daily oxycodone use. (Id.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Debbie Lee Lee, No. CV-21-0283-PHX-SMB
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 At issue is the denial of Plaintiff Debbie Lee Lee’s Application for Social Security 16 Disability Insurance (“SSDI”) benefits by the Social Security Administration (“SSA”) 17 under the Social Security Act (the “Act”). Plaintiff filed a Complaint, (Doc. 1), and an 18 Opening Brief, (Doc. 17), seeking judicial review of that denial. Defendant SSA filed an 19 Answering Brief, (Doc. 19), to which Plaintiff did not file a Reply. The Court has reviewed 20 the parties’ briefs, the Administrative Record, (Doc. 12), and the Administrative Law 21 Judge’s (“ALJ’s”) decision, (Doc. 12-3 at 11–32) and will vacate and remand the ALJ’s 22 decision for the reasons addressed herein. 23 I. BACKGROUND 24 Plaintiff filed an Application for SSDI benefits in November of 2017, alleging a 25 disability beginning in June of 2017. (Doc. 12-3 at 14.) Plaintiff’s claim was initially 26 denied in April of 2018. (Id.) A hearing was held before ALJ Patricia A. Bucci on May 27 21, 2020. (Id.) After considering the medical evidence and opinions, the ALJ determined 28 that Plaintiff suffered from the severe impairment of multilevel degenerative disc disease 1 status post lumbar fusion. (Doc. 12-3 at 18.) However, the ALJ concluded that, despite 2 this impairment, Plaintiff had the residual functional capacity (“RFC”) to perform light 3 work. (Id.) Consequently, Plaintiff’s Application was again denied by the ALJ on July 22, 4 2020. (Id. at 14.) Thereafter, the Appeals Council denied Plaintiff’s Request for Review 5 of the ALJ’s decision—making it the final decision of the SSA Commissioner (the 6 “Commissioner”)—and this appeal followed. (Doc. 17 at 2.) 7 II. LEGAL STANDARDS 8 An ALJ’s factual findings “shall be conclusive if supported by substantial 9 evidence.” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). The Court may set aside 10 the Commissioner’s disability determination only if it is not supported by substantial 11 evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 12 Substantial evidence is relevant evidence that a reasonable person might accept as adequate 13 to support a conclusion considering the record as a whole. Id. Generally, “[w]here the 14 evidence is susceptible to more than one rational interpretation, one of which supports the 15 ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 16 954 (9th Cir. 2002). In determining whether to reverse an ALJ’s decision, the district court 17 reviews only those issues raised by the party challenging the decision. See Lewis v. Apfel, 18 236 F.3d 503, 517 n.13 (9th Cir. 2001). 19 III. DISCUSSION 20 Plaintiff argues that the ALJ failed to properly evaluate Plaintiff’s symptom 21 testimony and in weighing the medical opinion evidence. (Doc. 17 at 1.) The 22 Commissioner argues that the ALJ’s opinion is supported by substantial evidence and is 23 free of legal error. (Doc. 19 at 7, 21.) The Court has reviewed the medical and 24 administrative records and remands for further proceedings. 25 A. Plaintiff’s Symptom Testimony 26 An ALJ performs a two-step analysis to evaluate a claimant’s testimony regarding 27 pain and symptoms. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). First, the 28 ALJ evaluates whether the claimant has presented objective medical evidence of an 1 impairment that “could reasonably be expected to produce the pain or symptoms alleged.” 2 Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007) (cleaned up). Second, 3 absent evidence of malingering, an ALJ may only discount a claimant’s allegations for 4 reasons that are “specific, clear and convincing” and supported by substantial evidence. 5 Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) superseded on other grounds by 20 6 C.F.R. § 404.1502(a). 7 “[T]he ALJ must specifically identify the testimony she or he finds not to be credible 8 and must explain what evidence undermines the testimony.” Holohan v. Massanari, 246 9 F.3d 1195, 1208 (9th Cir. 2001). General findings are insufficient. Id. “Although the 10 ALJ’s analysis need not be extensive, the ALJ must provide some reasoning in order for 11 [the Court] to meaningfully determine whether the ALJ’s conclusions were supported by 12 substantial evidence.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th 13 Cir. 2014). “[T]he ALJ may consider inconsistencies either in the claimant’s testimony or 14 between the testimony and the claimant’s conduct.” Molina, 674 F.3d at 1112. For 15 instance, the ALJ may consider “whether the claimant engages in daily activities 16 inconsistent with the alleged symptoms.” Id. (quoting Lingenfelter, 504 F.3d at 1040). 17 Plaintiff argues the ALJ’s findings were not substantially supported by the evidence 18 and the ALJ did not properly consider her symptom testimony. (Doc. 17 at 21.) The 19 Commissioner argues substantial evidence supports the ALJ’s finding that Plaintiff’s 20 statements concerning her symptom intensity, persistence, and limiting effects were 21 partially inconsistent with the medical evidence and record. (Doc. 29 at 22.) 22 Here, the ALJ found that Plaintiff’s medically determinable impairments could 23 reasonably be expected to cause the alleged symptoms. However, the ALJ found Plaintiff’s 24 statements concerning the intensity, persistence, and limiting effects of these symptoms 25 were not entirely consistent with medical and other evidence. The ALJ found the objective 26 evidence conflicted with Plaintiff’s testimony that her pain was so severe that she was 27 unable to work in any capacity, unable to drive, needed encouragement to do household 28 chores, did not socialize, had difficulty sleeping, had an inability to cook, became 1 overwhelmed from written or spoken instructions, and required assistance to put on socks, 2 shoes, and use the toilet. (Doc. 12-3 at 21.) 3 The ALJ describes the objective medical findings in the following ways: (1) they 4 sometimes conflicted, but generally showed limited motion in Plaintiff’s spine; (2) some 5 providers noted an antalgic gait while others noted a normal gait; (3) Plaintiffs at times had 6 4/5 strength in her hips, knees, and ankles and full 5/5 strength above her elbows, wrists, 7 and bilateral legs; (4) Plaintiff had reflexes of 2/4 upon diagnosis; and (5) Plaintiff had 8 occasional decreased pinprick and vibration in her bilateral lower extremities. (Id.) 9 Therefore, the ALJ determined the objective medical evidence was consistent with a light 10 work RFC that limited standing and walking to four hours in an eight-hour workday. (Id.) 11 The ALJ next considered Plaintiff’s course of treatment. The ALJ notes that 12 Plaintiff’s treatment consisted of lumbar epidural injections, a TENS unit, physical therapy, 13 massages, acupuncture, and daily oxycodone use. (Id. at 23.) Additionally, the ALJ noted 14 that Plaintiff did not report a change in pain level over the course of treatment and that 15 Plaintiff declined the option to undergo a lumbar spinal cord stimulator trial. 16 Lastly, the ALJ found that Plaintiff’s daily activities did not align with the alleged 17 severity. The ALJ points to Plaintiff’s admissions that she is able to care for her pets with 18 some help, make her bed, shop in stores, and occasionally handle finances. (Id. at 19.) The 19 ALJ also cites to Plaintiff’s demonstrated attention, concentration, and memory, as well as 20 Plaintiff’s living with her husband and two children—despite claiming she does not 21 socialize. (Id.) Finally, the ALJ cites to Plaintiff engaging in occasional stretching, 22 walking, and swimming during the summer months, as well as occasional driving and 23 walking one block without stopping to rest. (Id. at 22–23.) 24 For these reasons, the Court finds the ALJ relied on substantial evidence when 25 making its findings on Plaintiff’s symptom testimony. 26 B. Evaluation of Medical Testimony 27 New regulations apply to this case because Plaintiff filed for SSDI benefits after 28 March 27, 2017. See Woods v. Kijakazi, 32 F.4th 785, 789 (9th Cir. 2022). There is no 1 longer a hierarchy among the sources of medical opinions and no special deference is given 2 to the opinions of treating physicians merely because of their relationship with the 3 claimant. Id. at 792. The previous standard of specific and legitimate reasons to reject a 4 treating physician’s opinion no longer applies. Id. Nevertheless, “an ALJ cannot reject an 5 examining or treating doctor’s opinion as unsupported or inconsistent without providing 6 an explanation supported by substantial evidence.” Id. 7 Plaintiff argues the ALJ’s evaluation of the medical opinions, findings, and RFC are 8 unsupported by substantial evidence. (Doc. 17 at 11–20.) Plaintiff specifically argues that 9 the ALJ improperly interpreted Drs. Erbstoesser and Peachy’s medical opinions in relation 10 to their support and consistency with the record and evidence as a whole. (Id. at 14–18.) 11 Likewise, Plaintiff argues Dr. Schwartz’s assessment was improperly relied upon 12 considering the other conflicting medical opinions. (Id. at 19–20.) The Commissioner 13 responds that the ALJs findings are supported by substantial evidence. (Doc. 19 at 9–10.) 14 An ALJ is not permitted to “cherry-pick” from mixed results to support a denial of 15 benefits. Garrison, 759 F.3d at 1017 n.23; see also Holohan, 246 F.3d at 1205 (“[The 16 treating physician’s] statements must be read in context of the overall diagnostic picture he 17 draws. That a person who suffers from severe panic attacks, anxiety, and depression makes 18 some improvement does not mean that the person’s impairments no longer seriously affect 19 her ability to function in a workplace.”). An ALJ also cannot rely on claimant’s daily 20 activities to suggest a lack of disability unless the daily activities establish the claimant is 21 able to spend a substantial part of her day engaged in pursuits involving the performance 22 of physical functions that are transferable to the workplace. See Orn, 495 F.3d at 639; see 23 also Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (“This court has repeatedly 24 asserted that the mere fact that a plaintiff has carried on certain daily activities . . . does not 25 in any way detract from her credibility as to her overall disability.”). Here, the Court agrees 26 that “[t]here is simply no evidence that Plaintiff engages in regular and sustained activities 27 of daily living that contradict the opinions from the treating specialist.” (Doc. 17 at 16.) 28 Therefore, the Court finds the ALJ does not support its findings on medical testimony with substantial evidence. 2 ITV. REMAND 3 If the ALJ’s decision is not supported by substantial evidence, the district court has 4|| discretion to reverse and remand either for an award of benefits or for further administrative 5|| proceedings. Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996); Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). “Remand for further administrative proceedings is 7\| appropriate if enhancement of the record would be useful.” Benecke v. Barnhart, 379 F.3d 8 || 587,593 (Oth Cir. 2004). The ALJ has a special duty to fully and fairly develop the record 9|| and to assure that the claimant’s interests are considered, even when the claimant is 10 || represented by counsel. Smolen, 80 F.3d at 1288. Here, the record is not fully developed || regarding the providers’ medical testimony and opinions on Plaintiffs regular and || sustained activities of daily living. Therefore, the Court will remand for further || proceedings. 14 V. CONCLUSION 15 The Court finds that the ALJ’s medical testimony and opinion findings regarding Plaintiff's activities of daily living are unsupported by substantial evidence, therefore, 17 IT IS ORDERED remanding this case for further proceedings consistent with this 18 || opinion. 19 IT IS FURTHER ORDERED vacating the July 22, 2020 decision of the ALJ, as 20 || upheld by the Appeals Council. 21 IT IS FURTHER ORDERED directing the Clerk of Court to enter judgment || consistent with this Order and close this case. 23 Dated this 30th day of September, 2022. 24 25 “See > SO fonorable Susan M. Brnovich = 7 United States District Judge 28
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