1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Rodger Norris, No. CV-19-08047-PCT-DWL
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff Rodger Norris seeks judicial review of the Administrative Law Judge’s 16 (“ALJ”) decision to deny his claim for disability benefits under the Social Security Act (the 17 “Act”). (Doc. 1.) For the following reasons, the Court will reverse the ALJ’s decision and 18 remand for further proceedings consistent with this opinion. 19 BACKGROUND 20 On January 6, 2015, Norris filed an application for disability and disability 21 insurance benefits under the Act for a period of disability beginning August 25, 2013. 22 (Administrative Record at 21 [hereinafter “R.”].) Norris’s claim was initially denied on 23 May 14, 2015, and upon reconsideration on October 29, 2015. (Id.) The ALJ held an oral 24 hearing, at Norris’s request, on August 16, 2017. (Id.) On February 7, 2018, the ALJ 25 issued a written decision denying Norris’s application, which became the final 26 administrative decision when the Appeals Council denied his request for review. (Id. at 1.) 27 The ALJ concluded that Norris had severe impairments in the form of coronary 28 artery disease and chronic pain syndrome and that he was unable to perform past relevant 1 work. (R. at 23, 29.) However, the ALJ determined that Norris’s residual functional 2 capacity (“RFC”) included the ability to do a full range of sedentary work. (Id. at 25-29.) 3 The ALJ discussed and considered other alleged impairments—including hyperlipidemia, 4 gastroesophageal reflux disease, anxiety disorder, Asperger’s disorder, and posttraumatic 5 stress disorder, as well as other mental and physical limitations—when reaching this 6 determination. (Id. at 23-29.) The ALJ concluded there were a significant number of jobs 7 in the national economy that Norris could perform. (Id. at 30.) 8 ANALYSIS 9 I. Legal Standard 10 In determining whether to reverse an ALJ’s decision, the district court reviews only 11 those issues raised by the party challenging the decision. Lewis v. Apfel, 236 F.3d 503, 517 12 n.13 (9th Cir. 2001). The Court may set aside an ALJ’s disability determination only if the 13 determination is not supported by substantial evidence or is based on legal error. Orn v. 14 Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, 15 but less than a preponderance; it is relevant evidence that a reasonable person might accept 16 as adequate to support a conclusion considering the record as a whole. Id. To determine 17 whether substantial evidence supports a decision, the Court must consider the record as a 18 whole and may not affirm simply by isolating a “specific quantum of supporting evidence.” 19 Id. Generally, “[w]here the evidence is susceptible to more than one rational interpretation, 20 one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas 21 v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). However, “[l]ong- 22 standing principles of administrative law require us to review the ALJ’s decision based on 23 the reasoning and factual findings offered by the ALJ—not post hoc rationalizations that 24 attempt to intuit what the adjudicator may have been thinking.” Bray v. Comm’r of Soc. 25 Sec., 554 F.3d 1219, 1226 (9th Cir. 2009). 26 To determine whether a claimant is disabled for purposes of the Act, the ALJ 27 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 28 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 1 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 2 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. § 3 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. Id. At step two, 4 the ALJ determines whether the claimant has a “severe” medically determinable physical 5 or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If not, the claimant is not disabled, 6 and the inquiry ends. Id. At step three, the ALJ considers whether the claimant’s 7 impairment or combination of impairments meets or medically equals an impairment listed 8 in Appendix 1 to Subpart P of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, 9 the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step 10 four. Id. At step four, the ALJ assesses the claimant’s RFC and determines whether the 11 claimant is still capable of performing past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). 12 If so, the claimant is not disabled and the inquiry ends. Id. If not, the ALJ proceeds to the 13 fifth and final step, which is whether the claimant can perform any other work in the 14 national economy based on the claimant’s RFC, age, education, and work experience. 20 15 C.F.R. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is 16 disabled. Id. 17 II. Issues Raised By Norris On Appeal 18 Norris argues: (1) the ALJ erred by concluding that he lacks mental and non- 19 exertional limitations; (2) the ALJ erred by rejecting his symptom testimony and the 20 testimony of his mother; (3) additional evidence must be considered; and (4) the ALJ 21 ignored Norris’s degenerated lumbar and cervical spine. (Doc. 12.) 22 A. Mental and Non-Exertional Limitations 23 Norris contends the ALJ erred in concluding he is not mentally limited and does not 24 have non-exertional limitations. (Id. at 7.) Both arguments are based on the ALJ’s 25 assignment of less-than-controlling weight to certain medical opinions. 26 When evaluating a medical opinion, the ALJ considers: (1) whether the physician 27 examined the claimant; (2) the length, frequency, nature, and extent of any treatment 28 relationship; (3) the degree of support the opinion has, particularly from objective medical 1 evidence; (4) the consistency of the opinion with the record as a whole; (5) the physician’s 2 specialization; and (6) “other factors.” 20 C.F.R. § 416.927(c). Generally, opinions of 3 treating physicians are entitled to the greatest weight; opinions of examining, non-treating 4 physicians are entitled to lesser weight; and opinions of non-examining, non-treating 5 physicians are entitled to the least weight. Garrison v. Colvin, 759 F.3d 995, 1012 (9th 6 Cir. 2014). If the ALJ discredits a controverted opinion of a treating or examining 7 physician, the ALJ must provide “specific and legitimate” reasons supported by substantial 8 evidence. Id. An ALJ satisfies the “substantial evidence” requirement by providing a 9 “detailed and thorough summary of the facts and conflicting clinical evidence, stating his 10 [or her] interpretation thereof, and making findings.” Id. However, “[t]he ALJ need not 11 accept the opinion of any physician, including a treating physician, if that opinion is brief, 12 conclusory, and inadequately supported by clinical findings.” Thomas v. Barnhart, 278 13 F.3d 947, 957 (9th Cir. 2002). 14 1. Mental limitations 15 The ALJ concluded that although Norris had medically determinable mental 16 impairments of anxiety disorder, Asperger’s syndrome, and posttraumatic stress disorder, 17 those conditions “do not cause more than minimal limitation in the claimant’s ability to 18 perform basic mental work activities and are therefore nonsevere.” (R. at 24.) In reaching 19 this conclusion, the ALJ considered the so-called “paragraph B” criteria set out at 20 C.F.R. 20 § Pt. 404, Subpt. P, App. 1. (Id.) The paragraph B criteria assess functional limitations in 21 a claimant’s ability to (a) understand, remember, or apply information, (b) interact with 22 others, (c) concentrate, persist, or maintain pace, and (d) adapt or manage oneself. 20 23 C.F.R. § Pt. 404, Subpt. P, App. 1. The ALJ concluded that Norris had “mild” limitations 24 in all four categories. (R. at 24.) 25 a. Dr. Krabbenhoft 26 Dr. Jonna Krabbenhoft examined Norris on April 8, 2015 and concluded that Norris 27 had psychological limitations that were expected to last for at least 12 months. (R. at 802.) 28 In support of this opinion, Dr. Krabbenhoft analyzed the Paragraph B criteria. She 1 concluded that two of those criteria did not support a finding of impairment—specifically, 2 the “understanding and memory” criterion did not support a finding of impairment because 3 Norris had scored 28 out of 30 on the mini-mental status examination (“MMSE”) and the 4 “adapting to change” criterion also did not support a finding of impairment. (Id.) As for 5 the “sustained concentration and persistence” criterion, she concluded that Norris was only 6 “able to follow simple instructions” in light of his “history of termination (10-15 jobs) 7 related to performance and conflict.” (Id.) Finally, as for the “social interaction” criterion, 8 she opined: “Abrasive, irritable mood with avoidant eye contact. [Norris] indicated a 9 history of significant conflict with others in personal and professional relationships. 10 [Norris] often swore in his responses to questions or in response to examiner questions . . 11 . . Limited social reciprocity was established, due to abrasive demeanor.” (Id. 12 The ALJ assigned “little weight” to the opinion of Dr. Krabbenhoft. (R. at 27.) The 13 ALJ identified three reasons for this conclusion. First, the ALJ was “unable to assign any 14 weight” to the opinion that Norris had limited social reciprocity because the opinion “is 15 expressed in terms of possible limitations rather than a clear opinion regarding the 16 claimant’s limitations due to psychological impairments.” (Id.) Second, the ALJ stated 17 that the “limitation to simple instructions” was “incongruent with the available evidence, 18 which shows that [Norris] able to provide information about his health, describe his prior 19 work history, respond to questions from medical providers, and there is no mention of any 20 issues with [Norris’s] short- or long-term memory.” (Id.) Third, the ALJ noted that Norris 21 scored 28 out of 30 on the MMSE, “which indicates normal cognition” and “is also 22 inconsistent with the limitation to simple work.” (Id.) 23 Because Dr. Krabbenhoft was an examining physician, the ALJ was required to 24 provide “specific and legitimate” reasons, supported by substantial evidence, before 25 rejecting her opinion. Garrison, 759 F.3d at 1012. The ALJ failed to do so. The ALJ’s 26 first proffered reason was not legitimate and not supported by substantial evidence. Dr. 27 Krabbenhoft’s opinion concerning the “social interaction” criterion was not equivocal or 28 unclear. She provided the opinion underneath the portion of the form that required her to 1 “give us a statement of your medical opinion based on your own substantiated medical 2 findings about what the individual can still do despite his impairment(s).” (R. at 802.) She 3 identified an array of reasons why Norris’s ability to get along with co-workers and respond 4 to supervision might be impaired and then concluded: “Limited social reciprocity was 5 established.” (Id.) Thus, the ALJ’s conclusion that Dr. Krabbenhoft failed to provide a 6 “clear opinion regarding the claimant’s limitations due to psychological impairments” (R. 7 at 27) is belied by the record. 8 Nor is there substantial evidence supporting the ALJ’s second proffered rationale— 9 that Dr. Krabbenhoft’s opinion that Norris was only “able to follow simple instructions” 10 was “incongruent with the available evidence.” In support of this conclusion, the ALJ 11 merely offered an undifferentiated citation to hundreds of pages of the record. 12 Additionally, even assuming that the cited medical records show that Norris was able to 13 describe his prior work history and respond to questions from medical providers, the ALJ 14 did not attempt to explain why such conduct is inconsistent with the conclusion that Norris 15 is limited to simple work. Cf. Larrison v. Comm’r of Soc. Sec. Admin., 2020 WL 1150051, 16 *2 (D. Ariz. 2020) (“It is not sufficient for an ALJ to identify a . . . physician’s opinion, 17 summarize the clinical evidence, and then offer the ipse dixit that the two are in conflict— 18 reasoning and explanation are required.”). Similarly, a lack of memory loss is not 19 necessarily inconsistent with an ability to perform only simple work—mental limitations 20 apart from memory could conceivably undermine work capacity. 21 The ALJ’s final reason for rejecting Dr. Krabbenhoft’s opinion—that Norris’s 22 MMSE score indicated “normal cognition”—is not legitimate. Indeed, Dr. Krabbenhoft 23 specifically acknowledged that Norris’s MMSE score precluded a finding of impairment 24 as to one of the Paragraph B criteria—the criterion that addresses “understanding and 25 memory.” But the ALJ did not attempt to explain, let alone persuasively explain, why the 26 MMSE score also undermined Dr. Krabbenhoft’s opinions as to the other Paragraph B 27 criteria, which don’t address the claimant’s cognitive ability and instead touch upon other 28 aspects of psychological functioning, such as persistence and the possession of the social 1 skills necessary to hold down a job. 2 Because the ALJ failed to provide legally sufficient reasons for rejecting Dr. 3 Krabbenhoft’s opinions about Norris’s mental limitations, the Court must next consider 4 whether the error was harmless. An error is harmless if it is clear from the record that the 5 error is “inconsequential to the ultimate nondisability determination.” Tommasetti v. 6 Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). The relevant inquiry is not whether the ALJ 7 would have made a different decision absent the error, but whether the ALJ’s decision is 8 legally valid despite the error. Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 9 1162 (9th Cir. 2008). 10 Here, the ALJ’s error in assigning little weight to Dr. Krabbenhoft’s opinion was 11 not harmless because the ALJ did not consider Norris’s limited social reciprocity and 12 limitation to simple instructions when calculating his RFC. This was not inconsequential 13 to the final determination and is a reversible error. 14 b. State psychological consultants 15 The state psychologist consultants, Dr. Stacy Koutrakos and Dr. Andres Kerns, 16 reviewed Norris’s records as a result of his application for disability benefits and completed 17 mental RFC assessments. (R. at 119-21, 140-42.) Both doctors concluded that Norris had 18 limitations in the areas of understanding and memory, sustained concentration and 19 persistence, social interaction, and adaptation. (Id.) Both doctors also concluded that 20 Norris was able to “carry out at least simple instructions” and “adapt to at least simple work 21 changes.” (Id.) Dr. Kerns additionally noted that Norris “would do best in work settings 22 requiring minimal social interaction.” (Id. at 142.) 23 The ALJ assigned “little weight” to these doctors’ opinions for two of the same 24 reasons that she provided when rejecting Dr. Krabbenhoft’s opinion: (1) they were 25 “inconsistent with the available evidence, which shows that [Norris] was able to provide 26 information about his health, describe his prior work history, respond to questions from 27 medical providers, and there is [not] any mention of any issues with [Norris’s] short- or - 28 long-term memory,” and (2) Norris’s MMSE score, which “indicates normal cognition” 1 and is “inconsistent with the limitation to simple work.” (Id. at 28-29.) 2 It’s not clear that the state psychologists’ opinions were as inconsistent with the 3 ALJ’s opinion as the ALJ assumed. As the Commissioner points out, both doctors 4 concluded that Norris was capable of managing “at least” simple instructions and work 5 changes (Doc. 13 at 10), which is difficult to reconcile with the ALJ’s description of these 6 opinions as a “limitation to simple work” (R. at 29). Nevertheless, as with Dr. Krabbenhoft, 7 the ALJ’s proffered reasons for rejecting the state psychologist consultants’ opinions were 8 erroneous and this error was not harmless. 9 2. Non-exertional limitations 10 The ALJ concluded that Norris could perform a full range of sedentary activity as 11 defined by 20 C.F.R. § 404.1567(a).1 (R. at 27.) The ALJ thus relied on the Medical 12 Vocational Guidelines (“the grids”) set out at 20 C.F.R. § Pt. 404, Subpt. P, App. 2. (Id. at 13 30.) 14 Norris argues the ALJ failed to accord proper weight to opinions of treating and 15 examining physicians when concluding he could perform a full range of sedentary work. 16 (Doc. 12 at 11-15.) Norris identifies two physicians, Dr. Mathew Khumalo and Dr. Heather 17 Fields, whose opinions were given improper weight and argues that because he is incapable 18 of a full range of sedentary work, the ALJ’s reliance on the grids was reversible error. (Id.)2 19 a. Dr. Khumalo 20 On April 27, 2015, Dr. Khumalo performed a disability physical evaluation of 21 Norris. (R. at 804.) Dr. Khumalo concluded that Norris had non-exertional limitations in 22 1 Sedentary work “involves lifting no more than 10 pounds at a time and occasionally 23 lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is 24 often necessary in carrying out job duties.” 20 C.F.R. § 404.1567(a). 25 2 Use of the grids is “inappropriate where the predicate for using the grids—the ability to perform a full range of either medium, light or sedentary activities—is not present.” 26 Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988). “When a claimant’s non- exertional limitations are ‘sufficiently severe’ so as to significantly limit the range of work 27 permitted by the claimant’s exertional limitations, the grids are inapplicable” and the ALJ must consult a vocational expert. Id. Non-exertional limitations are those which do not 28 directly affect a claimant’s strength, and include mental limitations, sensory limitations, postural limitations, and environmental limitations. 20 C.F.R. § 416.969a(c). 1 that (a) he can never climb ladders, rope, or scaffolds, and (b) he cannot work in 2 environments involving heights, moving machinery, extremes in temperatures, chemicals, 3 and dust/fumes or gases. (Id. at 808.) 4 The ALJ began by noting that “the undersigned has assigned the claimant to 5 sedentary work, which would be more limited than [the work] assigned by Dr. Khumalo.” 6 (R. at 28.) Next, the ALJ stated that Norris’s “ejection fraction of 45 to 50 percent and 7 long history of abdominal pain suggest a slightly lower exertional level.” (Id.) For these 8 reasons, the ALJ assigned “partial weight” to Dr. Khumalo’s opinion. (Id.) 9 These were not specific and legitimate reasons, supported by substantial evidence, 10 for assigning only partial weight to Dr. Khumalo’s opinion. First, it is unclear whether the 11 ALJ’s observation that her conclusion as to Norris’s RFC (i.e., he can perform a full range 12 of sedentary work) differed from Dr. Khumalo’s opinion was intended to serve as a 13 rationale for rejecting Dr. Khumalo’s opinion. If so, this reason was circular and 14 illegitimate. Cf. Laborin v. Berryhill, 867 F.3d 1151, 1154 (9th Cir. 2017) (“Because the 15 claimant’s symptom testimony must be taken into account when the ALJ assesses the 16 claimant’s RFC, it cannot be discredited because it is inconsistent with that RFC. [This 17 practice] puts the cart before the horse.”). Second, the ALJ’s only other proffered reason 18 for rejecting Dr. Khumalo’s opinion—Norris’s “ejection fraction of 45 to 50 percent and 19 long history of recurrent abdominal pain suggest a slightly lower exertional level”—is 20 insufficient. “An ‘ejection fraction’ is the percentage of blood pumped with each heart 21 beat.” Bolt v. Honeywell Int’l Inc., 814 F. Supp. 2d 913, 916 n.1 (D. Ariz. 2011). The 22 Court cannot discern from the ALJ’s opinion why this particular ejection fraction range is 23 significant. Moreover, Dr. Khumalo’s opinion pertained to non-exertional limitations, not 24 exertional limitations. 25 These errors were not harmless. The ALJ’s reliance on the grids in concluding that 26 Norris was not disabled, which would have been impermissible in the presence of 27 significant non-exertional limitations, was not inconsequential to the final determination. 28 … 1 b. Dr. Fields 2 Dr. Fields is Norris’s treating physician. On July 27, 2017, Dr. Fields concluded 3 that Norris had non-exertional limitations in that he (a) requires a cane to walk, (b) is unable 4 to climb or balance, and (c) cannot work around moving machinery. (R. at 1160-62.) 5 The ALJ assigned “minimal weight” to Dr. Fields’s opinion because (1) she is not 6 a specialist in the area in which she submitted an opinion and (2) her opinion was “quite 7 conclusory and provides little explanation as to the conclusions reached.” (Id. at 28.) 8 These were not specific and legitimate reasons, supported by substantial evidence, 9 for rejecting Dr. Fields’s opinion. First, as for specialization, neither the ALJ nor the 10 Commissioner explain why a specialization in internal medicine means Dr. Fields’s 11 opinion concerning Norris’s non-exertional limitations should be discounted. 12 Additionally, although 20 C.F.R. § 404.1527(c)(5) provides than an ALJ shall “give more 13 weight” to the opinion of a specialist, it doesn’t say that an ALJ may categorically reject 14 the opinion of a doctor who isn’t a specialist. Second, although it’s true that the form in 15 which Dr. Fields ultimately provided her opinion was a check-box form that contains little 16 explanation, the record also contains a large volume of notes from Dr. Fields concerning 17 her interactions with Norris. Thus, it was error for an ALJ to reject Dr. Fields’s opinion 18 solely because the check-box form itself was conclusory. Garrison v. Colvin, 759 F.3d 19 995, 1014 n.17 (9th Cir. 2014). Compare Turner v. Comm’r of Soc. Sec. Admin., 2020 WL 20 1026484, *11 (D. Ariz. 2020) (“Here, Dr. Bitza’s opinion consists of brief comments on a 21 check-box form, and he provided no clinical or laboratory findings to support his opinion 22 . . . . Thus, this is not a case like Garrison, where the court found that the ALJ erred in 23 rejecting a check-box form where the doctor’s opinion was ‘based on significant 24 experience with Garrison and supported by numerous records, and [was] therefore entitled 25 to weight that an otherwise unsupported and unexplained check-box form would not 26 merit’”) (citation omitted).3
27 3 The Commissioner argues that Dr. Fields’s notes and clinical and diagnostic findings do not support the opinion set forth in the check-box form. (Doc. 13 at 13-15.) 28 Whether or not this is true, it isn’t the reason the ALJ provided for rejecting Dr. Fields’s opinion. As noted, the Court must limit its review to the “reasoning and factual findings 1 The error in assigning minimal weight to Dr. Fields’s testimony and ignoring the 2 non-exertional limitations she found was not inconsequential to the outcome because it 3 meant the ALJ used the grids to reach a nondisability finding, which would have been 4 inappropriate given a finding of significant non-exertional limitations. 5 B. Testimony Of Norris And Norris’s Mother 6 The ALJ discounted Norris’s testimony because she found that “numerous exams 7 noted signs and symptoms of malingering” and that Norris’s complaints about his pain 8 were “out of proportion with the record.” (R. at 26, 27.) The ALJ also assigned little 9 weight to the opinions of Norris’s mother regarding Norris’s limitations because they were 10 “lay opinions based on casual observation” and “lack[ed] substantial support from 11 objective findings in the record.” (Id.) Norris argues that both credibility assessments 12 require reversal. (Doc. 12 at 15.) 13 1. Norris 14 The ALJ found that Norris was malingering. (R. at 27.) Norris argues that the 15 exhibits the ALJ cited in support of this conclusion contain no explicit evidence of 16 malingering. (Doc. 12 at 16; Doc. 14 at 5.) The Commissioner argues that although there 17 are “no explicit notes of malingering, there are indications that Plaintiff likely exaggerated 18 the extent of his pain symptoms to receive additional medication” and thus the ALJ’s 19 finding was correct. (Doc. 13 at 19.) 20 A claimant’s subjective complaints concerning his or her limitations are an 21 important part of a disability claim. Absent affirmative evidence of malingering, the ALJ 22 may only discount a claimant’s statements and testimony for “specific, clear and 23 convincing” reasons that are supported by substantial evidence. Molina v. Astrue, 674 F.3d 24 1104, 1112 (9th Cir. 2012); Thomas, 278 F.3d at 959. Put another way, “[t]he only time 25 this standard does not apply is when there is affirmative evidence that the claimant is 26 malingering.” Carmickle, 533 F.3d at 1160. “Malingering is defined as the intentional
27 offered by the ALJ—not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.” Bray, 554 F.3d at 1226. 28 1 production of false or grossly exaggerated physical or psychological symptoms, motivated 2 by external incentives such as avoiding military duty, avoiding work, obtaining financial 3 compensation, evading criminal prosecution, or obtaining drugs.” Hadley v. Colvin, 2013 4 WL 4206834, *2 n.2 (C.D. Cal. 2013). 5 Here, although the ALJ’s non-specific citation to two exhibits that total over 200 6 pages didn’t do the parties and the Court any favors, the record does contain affirmative 7 evidence of malingering. One hospital record notes, “Psychiatry and GI consult . . . made 8 mention of drug-seeking behavior. The patient indeed did frequently request narcotics 9 during his stay, the 2 times that I saw him he appeared comfortable when I first opened the 10 door and found him in his room, but during our visits, he writhed in pain and wailed and 11 cried throughout the visit.” (R. at 354.) The doctor in that record noted that “[Norris] was 12 rather upset about not being given narcotics and signed out against medical advice.” (Id.) 13 During another emergency room visit, the doctor noted that “[Norris] appeared in a great 14 deal of discomfort. However, after I spoke to him about the fact that I was going to 15 discharge him on some narcotics, his symptoms appeared to abate.” (Id. at 456.) Similarly, 16 during another emergency room visit, a different doctor wrote that Norris was “moaning 17 in pain very loudly throughout his emergency department course . . . [but] instantly became 18 very calm and conversational whatever [sic] we are discussing pain medication treatments 19 . . . I would recommend that his care plan the changed [sic] to say ‘no narcotics for 20 subjective complaints.’” (Id. at 546.) 21 Norris argues that “affirmative (i.e. explicit) evidence of malingering is required in 22 order for an ALJ to be relieved of her burden to provide legally sufficient reasons for 23 rejecting a claimant’s medical testimony.” (Doc. 14 at 5.) Although it’s true that the term 24 “malingering” is absent from the evidence the Commissioner and the Court were able to 25 identify within the ALJ’s cited sources,4 the ALJ pointed to evidence showing that Norris 26 repeatedly produced false or exaggerated symptoms motivated by external incentives. The 27 4 Explicit evidence of malingering is not absent from the record as a whole. One set 28 of notes states that Norris had “[n]umerous exams [with signs and symptoms] of malingering, drug seeking behaviors.” (R. at 137.) 1 caselaw calls for affirmative evidence, which is present in the record, and Norris has not 2 identified a case suggesting that “malingering” itself is a magic word that must appear in 3 the record to support an ALJ finding of malingering. The ALJ’s explanation of Norris’s 4 malingering is far from a model of clarity, but where, as here, the evidence is “susceptible 5 to more than one rational interpretation, one of which supports the ALJ’s decision,” the 6 Court must affirm the ALJ’s finding. Thomas, 278 F.3d at 954. Because the ALJ made a 7 finding of malingering, it was not a legal error to discount the credibility of Norris’s 8 testimony. 9 2. Norris’s mother 10 Norris’s mother testified that Norris had “significant difficulty remembering, 11 walking, and standing” and that he “had been fired or laid off twice due to constant 12 absenteeism.” (R. at 26.) The ALJ provided two reasons for rejecting this testimony: (1) 13 her reports were “lay opinions based on casual observation, rather than objective medical 14 testing,” and (2) like Norris’s allegations, “they lack substantial support from objective 15 findings in the record.” (Id.) Norris argues that discounting his mother’s testimony 16 because she is a lay witness is legally insufficient. (Doc. 12 at 20.) The Commissioner 17 responds that inconsistency with medical evidence is a germane reason for discounting lay 18 witness testimony. (Doc. 13 at 19.) 19 “Lay testimony as to a claimant’s symptoms or how an impairment affects the 20 claimant’s ability to work is competent evidence that the ALJ must take into account.” 21 Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012). “[R]egardless of whether they are 22 interested parties, friends and family members in a position to observe a claimant’s 23 symptoms and daily activities are competent to testify as to [his or] her condition.” 24 Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009). The ALJ must 25 provide reasons “that are germane to each witness” to reject a lay witness’ testimony. 26 Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). “An ALJ need only give germane 27 reasons for discrediting the testimony of lay witnesses. Inconsistency with medical 28 evidence is one such reason.” Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) 1 (citation omitted). However, an ALJ may not “discredit . . . lay testimony as not supported 2 by medical evidence in the record.” Bruce, 557 F.3d at 1116. 3 Here, Norris is correct that his mother’s status as a lay witness was an improper 4 reason for the ALJ to discredit her testimony. However, Norris did not properly challenge, 5 in his opening brief, the ALJ’s other reason for rejecting his mother’s testimony. The Court 6 “ordinarily will not consider matters on appeal that are not specifically and distinctly 7 argued in an appellant’s opening brief.” Carmickle, 533 F.3d at 1161 n.2. See also Lewis, 8 236 F.3d at 517 n.13. Thus, the Court will affirm the ALJ’s decision to discredit Norris’s 9 mother’s testimony. 10 C. Consideration Of Additional Evidence 11 Norris argues that the evidence he submitted to the Appeals Council must be 12 considered by this Court on appeal. (Doc. 12 at 21.) Norris explains that this evidence 13 helps support Dr. Fields’s opinion about his limitations. (Id. at 21-22.) The Commissioner 14 argues that the evidence Norris submitted to the Appeals Council does not change the fact 15 that substantial evidence supports the ALJ’s decision. (Doc. 13 at 22.) Here, because the 16 Court has already found that the ALJ erred in assigning minimal weight to Dr. Fields’s 17 opinion, the issue of whether the additional evidence would warrant remand is moot. 18 D. Norris’s Degenerated Lumbar And Cervical Spine 19 Finally, Norris argues that the ALJ erred in failing to acknowledge evidence of his 20 degenerated lumbar and cervical spine. (Doc. 12 at 23.) The Commissioner responds that 21 Norris has failed to identify evidence showing that these degenerative changes constituted 22 a severe impairment, making further analysis by the ALJ unnecessary. (Doc. 13 at 5.) 23 Under 20 C.F.R. § 404.1521, a medically determinable impairment “must be 24 established by objective medical evidence from an acceptable medical source” and “must 25 result from anatomical, physiological, or psychological abnormalities.” If there’s a 26 medically determinable impairment, the ALJ must determine whether the impairment is 27 severe. Id. “An impairment . . . may be found ‘not severe only if the evidence establishes 28 a slight abnormality that has no more than a minimal effect on an individual’s ability to 1 work.’” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting Smolen v. Chater, 2 80 F.3d 1273, 1290 (9th Cir. 1996)). “[A]n ALJ may find that a claimant lacks a medically 3 severe impairment or combination of impairments only when his conclusion is clearly 4 established by medical evidence.” Id. at 687 (internal quotation omitted). 5 Here, the Commissioner appears to concede that Norris had an impairment. (Doc. 6 13 at 4.) Because Norris had a medically determinable impairment, it was necessary for 7 the ALJ to assess whether this impairment was severe or identify medical evidence clearly 8 establishing that it was not severe. It was an error to neglect all discussion of Norris’s 9 spine. 10 This error was not harmless. Some courts have concluded that an error with respect 11 to the severity of an impairment is “harmless when the ALJ reached the proper conclusion 12 that [the claimant] could not be denied benefits conclusively at step two and proceeded to 13 the next step of the evaluation sequence.” Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th 14 Cir. 2008). The Ninth Circuit’s guidance is less conclusive but appears to require 15 consideration of the impairment at least at step four in the event the impairment is found 16 not to be severe. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (“The decision reflects 17 that the ALJ considered any limitations posed by the bursitis at Step 4. As such, any error 18 that the ALJ made in failing to include the bursitis at Step 2 was harmless.”). Here, there 19 was no discussion at all of Norris’s degenerated lumbar and cervical spine. The ALJ’s 20 failure to consider Norris’s degenerated lumbar and cervical spine is another error requiring 21 reversal. 22 III. Remand Is Appropriate 23 Norris requests either a finding that he is entitled to disability benefits or a remand 24 for further consideration. (Doc. 12 at 25.) 25 In general, when a court reverses an administrative agency determination, the proper 26 course is to remand to the agency for additional investigation or explanation. Moisa v. 27 Barnhart, 367 F.3d 882, 886 (9th Cir. 2004) (citing INS v. Ventura, 537 U.S. 12, 16 (2002)). 28 The alternative, a remand for benefits, is appropriate only in “rare circumstances.” Treichler v. Comm’r of Soc. Sec., 775 F.3d 1090, 1099-1102 (9th Cir. 2014). These rare circumstances arise when three elements are present. First, the ALJ must have failed to 3 || provide legally sufficient reasons for rejecting medical evidence or claimant testimony. □□□ at 1100-01. Second, the record must be fully developed, there must be no outstanding || issues that must be resolved before a determination of disability can be made, and the Court || must find that further administrative proceedings would not be useful. 7d. at 1101. Further || proceedings are considered useful when there are conflicts and ambiguities that must be || resolved. Jd. Third, if the above elements are met, the Court may “find[] the relevant testimony credible as a matter of law . . . and then determine whether the record, taken as || a whole, leaves ‘not the slightest uncertainty as to the outcome of [the] proceeding.’” □□□ 11 || (citations omitted). Additionally, “even when those rare circumstances are present, [t]he 12 || decision whether to remand a case for additional evidence or simply to award benefits is in 13 || our discretion.” Jd. at 1101-02 (quotations omitted). 14 Here, the record is incompletely developed, most notably with respect to the records 15 || pertaining to Dr. Fields that were unavailable to the ALJ during the first hearing. || Additionally, the Court harbors doubt as to whether Norris is, in fact, disabled in light of || the evidence of malingering. Accordingly, the case will be remanded for further 18 || proceedings. 19 Norris also seeks an award of attorneys’ fees under the Equal Access to Justice Act, 20}} 28 U.S.C. § 2412(d)(1)(A). The Court instructs Norris to file a motion in conformance || with 28 U.S.C. § 2412(d)(1)(B) if he intends to pursue such an award. 22 IT IS THEREFORE ORDERED reversing the decision of the ALJ and remanding 23 || for further administrative proceedings consistent with this Order. The Clerk of Court shall 24 || enter judgment accordingly and terminate this case. 25 Dated this Ist day of April, 2020. 26 27 f _ 28 fi United States District Judge -16-