1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Tammy Kathleen Kelly Meixner, No. CV-20-00323-TUC-JCH
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff Tammy Meixner (“Meixner”) brought this action pursuant to 16 42 U.S.C. §§ 405(g), 1383(c)(3), seeking judicial review of a final decision by the 17 Commissioner of Social Security. (Doc. 1.) This matter was referred to United States 18 Magistrate Judge Lynnette C. Kimmins for Report and Recommendation (“R&R”). (Doc. 19 13.) On December 8, 2021, Magistrate Judge Kimmins issued her R&R finding that the 20 ALJ committed legal error and recommending that this Court reverse the final decision of 21 the Commissioner and remand for the immediate calculation and payment of benefits. 22 (Doc. 29 at 15–16.) The Commissioner objects to Judge Kimmins’ recommendation. (Doc. 23 30 at 7–10.) As explained below, the Court overrules the Commissioner’s objection and 24 adopts in full the R&R. 25 I. FACTUAL AND PROCEDURAL BACKGROUND 26 Meixner alleges disability beginning August 8, 2016 due to “anorexia nervosa, 27 depression, anxiety, obsessive-compulsive disorder (OCD), post-traumatic stress disorder 28 (PTSD), a history of hypothyroidism, and degenerative disc disease.” (AR at 19.) She also 1 suffers from chronic headaches and inflammatory bowel disease. (AR 924–25, 1088.) 2 On August 19, 2019, the ALJ’s decision concluded that Meixner was not disabled 3 within the meaning of the Social Security Act. (“SSA”) (AR 16–30.) To be found disabled 4 and qualified for Disability Insurance Benefits or SSI, a claimant must be unable “to engage 5 in any substantial gainful activity by reason of any medically determinable physical or 6 mental impairment which can be expected to result in death or which has lasted or can be 7 expected to last for a continuous period of not less than 12 months.” 42 U.S.C. 8 §§ 423(d)(1)(a) & 1382(a)(3)(A). The same five-step sequential evaluation governs 9 eligibility for benefits under both programs. See 20 C.F.R. §§ 404.1520, 404.1571-76, 10 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140–142 (1987). The five-step 11 process requires the claimant to show (1) she has not worked since the alleged disability 12 onset date, (2) she has a severe physical or mental impairment, and (3) the impairment 13 meets or equals a listed impairment or (4) her residual functional capacity (“RFC”) 14 precludes her from doing her past work. If at any step the Commissioner determines that a 15 claimant is or is not disabled, the inquiry ends. If the claimant satisfies her burden though 16 step four, the burden shifts to the Commissioner to show at step five that the claimant has 17 the RFC to perform other work that exists in substantial numbers in the national economy. 18 Lester v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir. 1995); see also Bowen, 482 U.S. at 146 n. 19 5 (describing shifting burden at step five). 20 In this case, the ALJ found at step one that Meixner had not engaged in substantial 21 gainful activity during the relevant period. (AR at 19.) At step two, the ALJ found Meixner 22 had “severe”1 impairments of anorexia nervosa, depression, anxiety, OCD, PTSD, history 23 of hypothyroidism, and degenerative disc disease.2 (AR at 19.) At step three, the ALJ found 24 that Plaintiff’s impairments did not meet or medically equal the severity of one of the 25 impairments listed in 20 C.F.R., Pt 404, Subpt. P, App. 1. (AR at 23.) Between steps three 26
27 1 An “impairment or combination of impairments” is “severe” if it “significantly limits [the] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). 28 2 As the R&R notes, chronic fatigue syndrome was consistently diagnosed by Meixner’s treating physicians, although the ALJ did not find it to be a severe impairment at Step Two. 1 and four, the ALJ determined Meixner had the Residual Functional Capacity3 (“RFC”) to 2 perform light work as defined in 20 C.F.R. § 404.1567(b). (AR at 21.) At step five, and 3 based on the RFC and the testimony of the vocational expert (“VE”), the ALJ concluded 4 Meixner could work as a housekeeper, fast food worker, or janitor, and therefore was not 5 disabled. (AR at 29.) Accordingly, the ALJ concluded that Meixner was not disabled since 6 August 8, 2016, the date she filed her application. (AR at 31.) Meixner requested review 7 before the Appeals Council, which was denied on May 29, 2020, thereby making the ALJ’s 8 decision the final decision of the Commissioner. (AR at 1.) Thereafter, Meixner timely 9 filed the instant action. (Doc. 1.) 10 Judge Kimmins issued her R&R and found that the ALJ committed legal error on 11 two grounds. (Doc. 29.) First, the R&R found that the ALJ failed to articulate legally 12 sufficient reasons for discounting Meixner’s symptom testimony. (Doc. 29 at 4.) Second, 13 the R&R determined that the ALJ improperly discounted the opinions of both Meixner’s 14 treating physicians, Drs. Bessette and Coull. (Doc. 29 at 12.) After finding that the ALJ 15 committed harmful legal error, Judge Kimmins concluded that the requirements of the 16 Ninth Circuit’s credit-as-true rule were met and recommended remand for an award of 17 disability benefits. (Doc. 29 at 15–16.) 18 The Commissioner objects to the R&R and asserts that the ALJ provided legally 19 sufficient reasons to discount both the symptom testimony, (Doc. 30 at 3), and the treating 20 physicians’ opinions (Doc. 30 at 6). Moreover, the Commissioner argues that Judge 21 Kimmins misapplied the credit-as-true rule’s requirement, specifically by finding that no 22 serious doubt exists as to whether Meixner is disabled in the face of purported 23 inconsistencies in the record. (See Doc. 30 at 7.) As such, the Commissioner argues that if 24 this Courts finds the ALJ committed legal error, then the matter should be remanded for 25 further proceedings. (Id.) 26 3 “Between steps three and four of the five-step evaluation, the ALJ must proceed to an 27 intermediate step in which the ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007). A plaintiff’s residual 28 functional capacity is what he can do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155-56 n.5–7 (9th Cir. 1989). 1 II. STANDARD OF REVIEW 2 A. REVIEW OF THE REPORT AND RECOMMENDATION 3 In reviewing a Magistrate Judge's R&R, “[a] judge of the court shall make a de novo 4 determination of those portions of the report ... to which objection is made.” 28 U.S.C. § 5 636(b)(1); see also Fed. R. Civ. P. 72(b); United States v. Remsing, 874 F.2d 614, 617 (9th 6 Cir. 1989). 7 B. REVIEW OF THE ALJ’S DECISION 8 An ALJ's decision may be reversed only when it is not supported by substantial 9 evidence or constitutes harmful legal error. Aukland v. Massanari, 257 F.3d 1033, 1035 10 (9th Cir. 2001). “‘Substantial evidence’ means more than a mere scintilla, but less than a 11 preponderance, i.e., such relevant evidence as a reasonable mind might accept as adequate 12 to support a conclusion.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) 13 citing Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990). “An error is harmless if it is 14 ‘inconsequential to the ultimate nondisability determination[.]’” Treichler v. Comm'r of 15 Soc., Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2015) (internal citation and quotation 16 omitted). Put differently, “an error is harmless so long as there remains substantial evidence 17 supporting the ALJ's decision and the error does not negate the validity of the ALJ's 18 ultimate conclusion.” Molina v. Astrue, 674 F.3d 1004, 1115 (9th Cir. 2012) (internal 19 quotation marks and citations omitted), superseded by regulation on other grounds. 20 III. ANALYSIS 21 A. SYMPTOM TESTIMONY 22 In evaluating a claimant’s symptom testimony, the ALJ must engage in a two-step 23 analysis. First, the ALJ must determine whether the claimant presented objective medical 24 evidence of an impairment that could reasonably be expected to produce the symptoms 25 alleged. See 20 C.F.R. § 404.1529(b). If the claimant has presented such evidence, the ALJ 26 proceeds to consider “all of the available evidence, including [the claimant’s] history, the 27 signs and laboratory findings, and statements from [the claimant],” her doctors, and other 28 persons to determine the persistence and intensity of these symptoms. See 20 C.F.R § 1 404.1529(c)(1). If there is no evidence of malingering, as here, the ALJ may reject the 2 claimant’s symptom testimony only by giving specific, clear, and convincing reasons that 3 are supported by substantial evidence. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 4 2009). 5 Here, the ALJ determined that Meixner’s symptom testimony was inconsistent with 6 the medical evidence or other record evidence. (AR at 22.) Specifically, the ALJ found: (1) 7 Meixner’s treatment was not what would be expected for chronic fatigue; (2) although 8 Meixner’s history of mental health indicated some work-related restrictions, the record did 9 not establish limitations greater than those found in the decision; (3) the treatment records 10 regarding Meixner’s neck and back pain demonstrate that she is not precluded from 11 performing light work; and (4) Meixner’s chronic fatigue was inconsistent with her active 12 lifestyle. (AR at 22–25.) The R&R disagreed and found that the ALJ failed to articulate 13 legally sufficient reasons for discounting Meixner’s symptom testimony as to all four 14 reasons.4 (Doc. 29 at 4.) 15 Because the ALJ found no evidence of malingering, she could only discount 16 Plaintiff’s testimony by providing specific, clear, and convincing reasons. Vasquez, 572 17 F.3d at 591. Specifically, “[t]he ALJ must specify what testimony is not credible and 18 identify the evidence that undermines the claimant's complaints – general findings are 19 insufficient.” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (internal citation and 20 quotation omitted); see Lambert, 980 F.3d at 1277 (finding insufficient the ALJ's 21 “boilerplate statement” that the claimant's symptom testimony was “not entirely consistent 22 4 The Commissioner objects to three out of the four R&R findings as to symptom 23 testimony. (See Doc. 30 at 3–6.) She did not object to the finding involving Meixner’s neck and back pain, (See Doc. 30 at 3–6), where the R&R concluded 24 Meixner offered no symptom testimony that she was unable to 25 perform light exertion work for a period of time. Rather, her symptom testimony is focused on her ability to sustain any task 26 for a full workday, due to fatigue and impaired cognition. Although Meixner may be able to perform at the exertional 27 level of light work for some length of time, that is not a basis to reject any of her symptom testimony. 28 (Doc. 29 at 8) (emphasis included in original). 1 with the objective medical evidence”). The Commissioner raises three arguments in 2 support of her objection. 3 1. TREATMENT HISTORY: CHRONIC FATIGUE 4 The ALJ found that Meixner’s treatment was not what would be expected to treat 5 chronic fatigue. (AR at 23.) The Commissioner argues that the ALJ “reasonably inferred 6 that the lack of treatment showed her symptoms were not as disabling as she alleged” as 7 there “are several types of treatment including medication and therapy to relieve [chronic 8 fatigue syndrome] symptoms.” (Doc. 29 at 5.) However, as noted in the R&R, the ALJ 9 neither identified what she considered to be “the expected treatment,” nor did she cite any 10 record evidence that Meixner failed to seek or follow any treatment advice from her doctors 11 related to chronic fatigue. (Doc. 29 at 6.) Although a conservative course of treatment may 12 undermine allegations of debilitating pain, it is not a proper basis for rejecting the 13 claimant's credibility where the claimant has a good reason for not seeking more aggressive 14 treatment. See Orn v. Astrue, 495 F.3d 625, 638 (9th Cir.2007). The ALJ’s conclusion that 15 Meixner failed to obtain an unspecified and unprescribed treatment, absent a medical 16 finding or opinion in the record urging such treatment, is the type of speculative 17 explanation our circuit prohibits. See Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir. 18 2008). 19 2. OBJECTIVE MEDICAL EVIDENCE: MENTAL HEALTH TREATMENT 20 With regard to Meixner’s mental health limitations, the Commissioner argues that 21 the ALJ properly discounted her testimony by sufficiently referring to objective evidence 22 which discounted Meixner’s alleged difficulty with memory and concentration. (Doc. 30 23 at 3.) The R&R found that the “[ALJ] offered a partial summary of the record related to 24 Meixner’s mental health treatment followed by a conclusory finding that she was only as 25 limited as the RFC.” (Doc. 29 at 7.) Further, the R&R noted the single instance where the 26 ALJ directly linked an objective finding to specific symptom testimony, specifically, the 27 cognitive tests completed at the University of Arizona Center for Neurology in 2017 which 28 did not support Meixner’s reported difficult with concentration and memory. (Doc. 29 at 1 7; AR at 24; AR at 926-28.) In fact, the ALJ bolstered her decision by also citing to a 2015 2 cognitive test which showed only mild difficulties in attention and concentration (Doc. 30 3 at 4; AR 23; AR 380) and a 2016 treatment record which documented intact concentration 4 and memory (Doc. 30 at 4; AR at 24; AR at 1019).5 5 While the ALJ sufficiently linked objective evidence to Meixner’s testimony, as to 6 concentration and memory, she failed to provide specific, clear, and convincing reasons 7 for discounting Meixner’s other mental health testimony. As the R&R notes, the same 2017 8 testing still evidenced poor cognition by Meixner. (See AR at 28 (“The Patient is still not 9 performing well on cognitive testing”).) Moreover, the ALJ was clearly aware of Meixner’s 10 other mental health impairments, as evidenced by the decision’s recitation of the mental 11 health treatment sought by Meixner over the course of several years. This included an 12 observation of a “real psychopathology” coupled with a recommendation for medication 13 management and extensive psychotherapy in 2016, the presence of possible psychological 14 issues noted in 2017, and a medication regime including Klonopin and Trazedone 15 beginning in 2018. (AR at 24.) The objective medical evidence, as noted in the ALJ’s 16 decision, belies the ALJ’s ultimate assertion that there is “very little evidence of mental 17 health treatment in the record.” (Id.) As such, the ALJ failed to provide specific, clear, and 18 convincing reasons to discount Mexiner’s symptom testimony as to her other mental health 19 treatment. 20 3. REPORTED ACTIVITIES 21 Next, the Commissioner contends that the ALJ reasonably found that Meixner’s 22 activities were inconsistent with her allegations of disabling symptoms. (Doc. 30 at 5.) A 23 claimant's reported daily activities can form the basis for an adverse credibility 24 determination if they consist of activities that contradict the claimant's “other testimony” 25 or if those activities are transferable to a work setting. Orn, 495 F.3d at 639; see also Fair 26 5 Despite Plaintiff’s characterization, this observation does not constitute an 27 improper post hoc rationalization given that it is offered not “to invent a new ground of 28 decision[,]” but to provide “additional support for the Commissioner's and the ALJ's position.” Warre v. Comm'r Soc. Sec. Admin., 439 F.3d 1001, 1005 n. 3 (9th Cir. 2006). 1 v, Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (daily activities may be grounds for an adverse 2 credibility finding “if a claimant is able to spend a substantial part of his day engaged in 3 pursuits involving the performance of physical functions that are transferable to a work 4 setting.”). “While a claimant need not vegetate in a dark room in order to be eligible for 5 benefits, the ALJ may discredit a claimant's testimony when the claimant reports 6 participation in everyday activities indicating capacities that are transferable to a work 7 setting” or when activities “contradict claims of a totally debilitating impairment.” Molina, 8 674 F.3d at 1112-13 (internal quotation marks and citations omitted). 9 Here, Meixner’s activities included preparing simple meals, performing light 10 chores, washing laundry, attending weekly therapy, driving, shopping, reading, talking on 11 the phone, spending time with her husband, participating in yoga, managing her own 12 finances, feeding and walking her dogs and horse, and grooming and riding her horse. 13 (Doc. 30 at 5; AR at 25; AR at 618; AR at 735.) Meixner argues that the ALJ failed to 14 connect these activities to any reasons to disbelieve her reported symptoms. (Doc. 33 at 9.) 15 The R&R similarly found the ALJ, in discounting Meixner’s symptom testimony, failed to 16 explain how the particular activities cited were inconsistent with the symptom testimony 17 offered. Moreover, the R&R found the ALJ failed to consider nuances and qualifications 18 within Mexiner’s testimony as to the extent, frequency, and timing with which Meixner 19 engaged in such activities. (Doc. 29 at 8–10.) The R&R also found that the ALJ failed to 20 consider the nature of chronic fatigue syndrome which presented in different ways: in some 21 instances Meixner attempted to complete at least one activity each day, but as a result, she 22 would nap for approximately four hours in the afternoon; whereas in other instances she 23 would be bedridden for an entire day. (Doc. 29 at 9; AR at 57.) 24 In her objection, the Commissioner argues that Plaintiff’s wide range and nature of 25 activities were proper grounds for discrediting her testimony to the extent that they 26 contradict claims of a totally debilitating impairment. (Doc. 30 at 5–6.) The Commissioner 27 relies in-part on Molina v. Astrue, 674 F.3d at 1113. Molina involved a plaintiff who 28 testified that she was incapable of being around people without suffering debilitating panic 1 attacks. Id. The Ninth Circuit found the ALJ reasonably concluded that certain activities, 2 including, “walking her two grandchildren to and from school, attending church, shopping, 3 and taking walks” undermined her symptom testimony. Id. In particular, her activities 4 involved a degree of human interaction that was analogous to that required by her past 5 relevant work environment where she worked in a large room occupied by only four or five 6 other people, with whom she did not generally need to interact. Id. 7 Unlike Molina, here the ALJ did not indicate how such activities were transferable 8 to Meixner’s work conditions as to the asserted limitations. Moreover, the ALJ relied on 9 activities that did not consume a substantial part of Meixner’s day. Although the 10 Commissioner offers her interpretations, including that Meixner’s ability to drive and 11 manage her finances negate disabling cognitive limitations, (Doc. 30 at 6), this 12 rationalization stands in contrast to the conclusion offered by the ALJ: “[Mexier’s activity] 13 indicates to the undersigned that the claimant not only retains the ability to care for herself, 14 but she is also able to care for the needs of others as well.” (AR at 25.) The ALJ did not 15 link the specific activities to a work setting, and as such, she did not provide specific, clear, 16 or convincing reasons to reject Meixner’s symptom testimony. 17 4. OTHER VALID REASONS 18 The Commissioner does not dispute that the ALJ failed to make specific findings 19 about which parts of Meixner’s testimony was supported or unsupported by the record. 20 (Doc. 30 at 3.) Citing to the unpublished opinion in Garza v. Astrue, the Commissioner 21 argues, however, that even if some of the ALJ’s reasons are unsupported, the ALJ’s 22 findings should be upheld because it is supported by “other valid reasons.”6 380 Fed.Appx. 23 672, 674 (9th Cir. 2010) (unpublished). The Commissioner’s argument is unavailing. 24 The Commissioner cites to Garza for the proposition that a credibility finding may 25 be upheld where three of the five reasons the ALJ considered were invalid. 380 Fed.Appx. 26 6 In furtherance of this argument, the Commissioner also “reasserts the argument in her 27 Answering Brief…” (Doc. 30 at 3 n. 1.) This is improper as objections are not a second opportunity to present the argument already considered by the Magistrate Judge. Oslin v. 28 Comm'r of Soc. Sec., No. 15-14126, 2017 WL 875299, at *1 (E.D. Mich. Mar. 6, 2017) (internal quotation and citation omitted). 1 at 674. However, Garza involved many circumstances not found here, including a lack of 2 objective medical evidence, contradictions between Garza’s testimony and the medical 3 record, and contradictions between Garza’s purported symptoms and her own treating 4 physician’s opinion. Id. Because the ALJ’s conclusions in Garza were based on substantial 5 evidence in the record, any potential error was rendered harmless. Id. at 673. 6 In sum, the ALJ erred by failing to identify specific, clear, and convincing reasons, 7 supported by substantial evidence, to reject Meixner’s symptom testimony. The 8 Commissioner’s first objection is overruled. 9 B. TREATING PHYSICIANS’ TESTIMONY 10 The Commissioner is responsible for determining whether a claimant meets the 11 statutory definition of disability and need not credit a physician’s conclusion that the 12 claimant is “disabled” or “unable to work.” 20 C.F.R. § 404.1527(d)(1). But the 13 Commissioner generally must defer to a physician’s medical opinion, such as statements 14 concerning the nature or severity of the claimant’s impairments, what the claimant can do, 15 and the claimant’s physical or mental restrictions. 20 C.F.R. §§ 404.1527(a)(2), (c). 16 In determining how much deference to give a physician’s medical opinion, the Ninth 17 Circuit distinguishes between the opinions of treating physicians, examining physicians, 18 and non-examining physicians. See Lester, 81 F.3d at 830. Generally, an ALJ should give 19 the greatest weight to a treating physician’s opinion and more weight to the opinion of an 20 examining physician than to one of a non-examining physician. See Andrews v. Shalala, 21 53 F.3d 1035, 1040–41 (9th Cir. 1995). 22 If the ALJ gives a treating physician's opinion less than controlling weight, the ALJ 23 must comply with two requirements. First, the ALJ must consider all of the following 24 factors in deciding the weight to give any medical opinion: (1) length and frequency of the 25 examining relationship; (2) nature and extent of the treatment relationship; (3) 26 supportability and whether the medical opinion includes supporting explanations and 27 relevant evidence such as laboratory findings; (4) consistency with the record as a whole; 28 (5) physician specialization and; (6) other factors. See 20 C.F.R. § 404.1527(c)(2)-(6). The 1 failure to consider these factors constitutes reversible error. Trevizo v. Berryhill, 871 F.3d 2 664, 676 (9th Cir. 2017). Where, as here, there is conflicting medical evidence, the ALJ’s 3 decisions must be grounded in specific and legitimate reasons supported by substantial 4 evidence in the record. See Lester, 81 F.3d at 830 (internal quotation omitted). 5 Treating physicians, Mark Bessette, M.D., and Bruce Coull, M.D., submitted 6 medical source statements on Meixner’s behalf: Dr. Bessett submitted statements from 7 December 2016, September 2017, February 2019, and April 2019; and Dr. Coull submitted 8 statements from June 2016, December 2016, November 2017, and April 2019. (AR at 26.) 9 Both Dr. Bessette and Dr. Coull opined that as a result of her impairments, Meixner could 10 not work an 8-hour day and would be expected to miss work at least 5 days per month 11 based on her ability to perform work-related activities. (AR 917–18; 924–25; 1074–75; 12 1086–87; 1088–89.) Both physicians noted Meixner’s headaches, irritable bowel 13 syndrome, and severe fatigue, (AR 924; 1085; 1088), and ultimately opined that she was 14 permanently unable to work (AR 670; 672; 1086). The ALJ found the opinions of 15 Meixner’s two treating physicians “less persuasive” while giving “partial weight” to the 16 opinions of the non-examining state physicians. (See AR 26–27). 17 The ALJ specifically noted that the limitations set forth by Dr. Bessette would, if 18 accepted, result in a conclusion of disability. (AR at 26.) However, citing purported 19 inconsistencies, the ALJ ultimately afforded “little to the opinions of Dr. Bessette and Dr. 20 Coull.” (Id.) The R&R found the ALJ did not identify any specific internal inconsistencies 21 or inconsistencies between the treating physicians’ opinions. (Doc. 29 at 12.) The 22 Commissioner does not dispute the ALJ failed to identity any specific inconsistency, but 23 urges the Court to infer internal inconsistencies, inconsistencies with Meixner’s course of 24 treatment,7 and inconsistencies with Meixner’s reported activities, based on the ALJ’s 25 discussion. (Doc. 30 at 6.) 26 1. INTERNAL INCONSISTENCIES 27 Inconsistency between a treating physician's opinion and medical evidence in the
28 7 The Commissioner refers to “inconsistencies with Plaintiff’s course of treatment,” but fails to offer argument to support this conclusory objection. (See Doc. 30 at 6.) 1 record can be a specific, legitimate reason to discount the treating physician's opinion. See 2 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). But to discredit a treating 3 physician's opinion as a result of inconsistency with the medical record, the ALJ must 4 identify the specific notes establishing the inconsistency and set forth particularized 5 reasons why her interpretations are more correct than the treating doctor's. See Stewart v. 6 Colvin, 575 F. App'x 775, 777 (9th Cir. 2014). In doing so, the ALJ cannot selectively 7 isolate and cherry-pick notes but must consider the whole record. See Martinez v. Berryhill, 8 721 F.App'x 597, 599 (9th Cir. 2017) (finding that the ALJ improperly isolated two 9 treatment notes rather than considering the treatment records as a whole); see also Ghanim 10 v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) (finding that the ALJ cannot cherry-pick 11 portions of the record to support a conflict with the treating physician's opinion). 12 The Commissioner first urges consideration of the ALJ’s observations that Dr. Coull 13 noted Meixner had “no major restrictions” yet opined that she should not do tasks which 14 required concentration, memory, or repetitive physical activity and would miss more than 15 five days of work per month. (Doc. 30 at 6–7 (“Even if the ALJ did not specifically note 16 this was an inconsistency, it is reasonable to infer that the ALJ considered the doctor’s 17 opinion to be internally inconsistent because she mentioned it within the same paragraph 18 as other inconsistencies.”); AR at 26; AR at 628.) Meixner correctly argues that the 19 Commissioner does not attempt to provide a description of activities that would contrast 20 with the physicians’ assessment regarding her ability to perform in a work environment on 21 a regular and continuing basis. (Doc. 33 at 4–5.) To infer an inconsistency, based solely on 22 an isolated commented from Dr. Coull’s 2016 report, would impermissibly disregard the 23 treatment records as a whole and supplement a basis which the ALJ did not rely upon. 24 2. DAILY ACTIVITIES 25 Inconsistency between a treating physician's opinion and a plaintiff's daily activities 26 can serve as a legitimate and specific reason to discount a treating physician's opinion. 27 Ghanim, 763 F.3d at 1162. In order to prove the inconsistency, the ALJ must develop the 28 record with specific detail in demonstrating how the daily activities are inconsistent with 1 the physician's opinion. See Trevizo, 871 F.3d at 676. 2 To the extent that the ALJ intended to discount the treating physicians’ opinions on 3 Meixner’s reported activities, noting that Meixner could help renovate a house, ride a 4 horse, and perform light household chores, she did not provide a clear and convincing basis 5 for doing so. (AR at 26.) These activities, which include many of the same activities the 6 ALJ used to discount Meixner’s symptom testimony, have little bearing on work-related 7 limitations or the ability to perform work on a regular and continuing basis. Relevant here, 8 both treating physicians noted that Plaintiff could sit, stand, and walk intermittently 9 between one to two hours each per day. (AR at 629; AR at 624.) The ALJ failed to explain 10 how any of the activities were inconsistent with this physical assessment. Nor did the ALJ 11 establish that Meixner’s activities were performed at such frequency or in such a manner 12 that they conflicted with the physicians’ opinions. 13 The ALJ was not required to accept either opinion from the treating physicians, but 14 she was required to assign them appropriate weight or give specific and legitimate reasons 15 for rejecting them supported by substantial evidence in the record. See Lester, 81 F.3d at 16 830 (internal quotation omitted). The ALJ erred in discounting the treating physicians’ 17 opinions without citing specific and legitimate reasons. 18 C. CREDIT-AS-TRUE RULE 19 “The decision whether to remand a case for additional evidence, or simply award 20 benefits[,] is within the discretion of the court.” Revels v. Berryhill, 874 F.3d 648, 668 (9th 21 Cir. 2017 quoting Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (remanding for 22 determination of benefits where panel was “convinced that substantial evidence does not 23 support the Secretary’s decision, and because no legitimate reasons were advanced to 24 justify disregard of the treating physician’s opinion…”). 25 In determining whether to remand for further proceedings or immediate payment of 26 benefits, the Ninth Circuit applies the “credit-as-true” standard when the following 27 requirements are met: (1) the ALJ has failed to provide legally sufficient reasons for 28 rejecting evidence, (2) the record has been fully developed and further proceedings would 1 serve no useful purpose, and (3) if the improperly discredited evidence were credited as 2 true, the ALJ would be required to find the plaintiff disabled on remand. Garrison v. 3 Colvin. 759 F.3d 995, 1021 (9th Cir. 2014) If all requirements are met, the court may still 4 remand for further proceedings “when the record as a whole creates serious doubt as to 5 whether the claimant is, in fact, disabled.” Id. 6 Here, Judge Kimmins considered whether the Ninth Circuit’s credit-as-true rule was 7 met, explaining:
8 The Court concluded that the first requirement has been 9 satisfied, because the ALJ rejected Meixner’s symptom testimony and the opinions of Drs. Coull and Bessette without 10 legally valid reasons. Second, there are no outstanding issues 11 to be resolved. Defendant disagrees, citing conflicts in the record between the opinions of various physicians as well as 12 between Plaintiff’s testimony and physician opinions. The ALJ 13 reviewed these opinion variances and had an opportunity to resolve them. However, her resolution was not well-reasoned. 14 The record needs no further development and Defendant does 15 not argue otherwise. If the Court were to remand for further proceedings, it would be solely for the ALJ to reconsider 16 evidence [s]he has already reviewed and rejected on a legally 17 insufficient basis. A mulligan to re-evaluate the same evidence does not qualify as a useful purpose for a remand under the 18 credit-as-true analysis. Id. at 1021-22. Next, the Court evaluates the outcome of the disability 19 analysis if the opinions of Drs. Coull and Bessette and 20 Meixner’s symptom testimony are credited. Both doctors opined that Meixner would be off task at least 11% of the day 21 and would miss four or more workdays per month. (AR 917- 22 18, 924-25, 992-93, 1074-75, 1086-91.) Meixner stated that she was unable to focus for an eight-hour workday; would be 23 unable to complete a full workday because of her need to nap; 24 would be off task “a lot” of the time; and would miss work at least three days a week. (AR 57, 65-66, 68-69, 225.) The 25 Vocational Expert testified that no work was available for a 26 person that would regularly miss one or more days of work per month. (AR 75-77.) Similarly, no work was available for a 27 person that would be off-task 10% or more per workday. (AR 28 75-77.) Crediting the testimony of the treating physicians and Meixner, the ALJ would be required to find Meixner disabled 1 based on the vocational expert’s testimony. After a thorough review of the entire record, the Court 2 does not have serious doubts as to whether Meixner is disabled. 3 Therefore, the Magistrate Judge recommends that the District Court remand this matter for the award of benefits. 4 (Doc. 29 at 15-16.) 5 The Commissioner argues that Judge Kimmins misapplied the credit-as-true rule’s 6 requirement, specifically by finding that no serious doubt exists as to whether Meixner is 7 disabled in the face of purported inconsistencies in the record. (See Doc. 30 at 7.) First, the 8 Commissioner argues that this case must be remanded for further proceedings because this 9 case presents conflicting medical opinions, where treating physicians’ opined severe 10 limitations whereas non-treating physicians opined that Meixner could perform unskilled 11 work. (Doc. 30 at 9.) Second, the Commissioner argues that the ALJ must resolve 12 consistencies between Plaintiff’s subjective complaints and the record. (Doc. 30 at 10.) As 13 such, the Commissioner argues that if this Court finds the ALJ committed legal error, then 14 the matter should be remanded for further proceedings to resolve the inconsistencies. (Id.) 15 Meixner responds, inter alia, that while the Commissioner argues for remand for 16 further administrative proceedings, the Commissioner “gives no idea what this Court 17 should order as to outstanding issues that an ALJ should resolve on remand, other than 18 arguing that the ALJ decision was correct in the first place.” (Doc. 33 at 10.) She urges that 19 a remand in these circumstances—where remand would amount to a mulligan for the 20 Commissioner—is inappropriate under Garrison v. Colvin. 759 F.3d at 1021. Meixner 21 insists that here, as evidenced by Judge Kimmins’ explicit findings, “the requirements of 22 the Ninth Circuit’s credit-as-true rule were met, and, because there were no outstanding 23 issues that required resolution before a finding of disability and there was no basis for 24 serious doubt as to Meixner’s disability based on a holistic view of this record, this Court 25 should order remand for award of disability benefits.” (Doc. 33 at 3.) 26 The relevant factors here require the Court to remand for an award of benefits. 27 The record has been fully developed. The record contains medical opinions, 28 sufficient medical evidence, testimony from Meixner, and VE testimony totaling hundreds 1 of pages. The record also reflects Meixner completed Function Reports in September 2016 2 and September 2017. Moreover, the Commissioner does not argue that the record is 3 insufficient. 4 Further, the ALJ failed to provide legally sufficient reasons for rejecting evidence 5 and gave improper weight to the opinions of Meixner’s treating physicians. As Judge 6 Kimmins found, the VE testified that a person with the functional limitations identified by 7 Meixner’s treating physicians is unable to work. Thus, the Court finds that crediting as true 8 the opinions of Drs. Coull and Bessette results in a finding that Meixner is disabled. 9 Other cases in similar circumstances are consistent with such a finding. See e.g., 10 Rawa v. Colvin, 672 Fed. App’x. 664, 669 (9th Cir. 2016) (applying the credit-as-true rule 11 where “in light of the extensive medical record, the ALJ’s error of law, the VE’s testimony 12 at the hearing, and the lack of any reason to doubt Rawa’s credibility, we conclude that it 13 would be contrary to both controlling case law and the purposes of the Social Security Act 14 to conduct further proceedings and to cause further delay.”); Trevizo v. Berryhill, 871 F.3d 15 664, 683 (9th Cir. 2017) (applying credit-as-true rule where the treating physician’s 16 opinion was developed and substantiated by his long-term treatment relationship with the 17 claimant and the VE specifically opined regarding the inability of an individual with the 18 claimant’s physical and intellectual limitation as described by the treating physician to 19 sustain work.); Roberts v. Acting Commr. of the Soc. Sec. Admin., 298 F. Supp. 3d 1232, 20 1241(D. Ariz. 2017) (applying credit-as-true rule where “Dr. Papke opined that Plaintiff 21 would be off task greater than 21% of an 8-hour workday[…] [a]t the administrative 22 hearing, the VE testified that Plaintiff could be off task ‘[o]nly about 10 percent’ of a 23 workday in order to maintain employment.”); Revels, 874 F.3d at 669 (Applying credit-as- 24 true rule where “[t]he ALJ failed to provide legally sufficient reasons for rejecting the 25 medical opinions of Revels’ treating rheumatologist and for rejecting Revels’ testimony 26 about her symptoms…If credited as true, Dr. Nolan’s opinion establishes that Revels is 27 disabled because the VE testified that someone with the limitations established by Dr. 28 Nolan could not work.”); see also Valentine v. Commr. of Soc. Sec. Admin., 19-cv-05127- 1 PHX-JAT, 2020 WL 7022239, at *6 (D. Ariz. Nov. 30, 2020) (Applying credit-as-true rule 2 where, “Defendant acknowledges that the ALJ erred in disregarding evidence from the 3 treating physicians…” and finding that “[w]hen all evidence in the [r]ecord is properly 4 credited, the Court sees no significant conflicts or ambiguities that are left for the ALJ to 5 resolve and finds that there is no uncertainty that Plaintiff’s severe mental impairment 6 precludes her from all work.”). 7 Further, the Commissioner does not raise any of the circumstances where the credit- 8 as-true rule was found not to apply because the record required further development either 9 by way of additional VE testimony, consideration of evidence not discussed by the ALJ, 10 or the reconciliation of conflicting medical opinions of examining physicians. See e.g., 11 Hammock v. Bowen, 879 F.2d 498, 504 (9th Cir. 1989) (declining to apply credit-as-true 12 rule where there was no VE testimony regarding the claimant’s ability to perform other 13 work and finding such testimony necessary because the treating physician stated that the 14 claimant could undertake sedentary activities); Salazar v. Commr. of Soc. Sec. Admin., No. 15 CV-19-00075-TUC-MSA, 2020 WL 2467334, at *6 (D. Ariz. May 12, 2020) (declining to 16 apply credit-as-true rule where VE testimony was needed on the claimant’s ability to 17 perform work that existed in the national economy in light of the claimant’s “educational 18 characteristics”); Dominguez v. Colvin, 808 F.3d 403, 408-09 (9th Cir. 2015) (declining to 19 apply credit-as-true rule where treating physician’s opinion conflicted both with his 20 treatment notes as well as with the opinion of a separate examining physician); Burrell v. 21 Colvin, 775 F.3d 1133, 1142 (9th Cir. 2014) (declining to apply credit-as-true rule where 22 evidence not discussed by the ALJ suggested that claimant may not be credible). The 23 Commissioner urges that the ALJ’s decision was correct for the reasons expressed in the 24 ALJ’s non-disability determination. In sum, the Commissioner fails to identify any 25 evidence that the ALJ overlooked and should be considered on remand and instead argues 26 that the ALJ should reweigh evidence she has already considered. This is not a proper basis 27 for remand. 28 As discussed above, the ALJ committed harmful error in assigning reduced weight 1|| to the opinions of Meixner’s treating physicians. Crediting as true the opinions of 2|| Meixner’s treating physicians results in a determination that she is unable to maintain 3 || employment. The Court further finds the credit-as-true elements have been met and remand 4|| for an award of benefits is warranted. 5|| IV. ORDER 6 IT IS ORDERED OVERRULING the Commissioner’s Objection to the Report 7|| and Recommendation (Doc. 30). 8 IT IS FURTHER ORDERED ADOPTING IN FULL the Report and 9|| Recommendation (Doc. 29), REVERSING the decision of the Commissioner and REMANDING this matter to the Commissioner for the immediate calculation and award of benefits. 12 IT IS FURTHER ORDERED DIRECTING the Clerk of the Court to enter 13 | judgment accordingly and close this case. 14 Dated this 7th day of March, 2022. 15 16
17 WS Ht. onorable John C. Hinderaker 18 United States District Judge 19 20 21 22 23 24 25 26 27 28
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