Pickett v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: October 8, 2020
• Docket: 2:19-cv-05336
• Status: Unknown

Opinion

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

9 Kimberly Pickett, No. CV-19-05336-PHX-DMF

10 Plaintiff,

11 v. ORDER

12 Commissioner of Social Security Administration, 13 Defendant. 14

15 16 At issue is the denial of Plaintiff Kimberly Pickett’s Application for Social Security 17 Disability Insurance benefits by the Social Security Administration (SSA) under the Social 18 Security Act. Plaintiff filed a Complaint (Doc. 1) with this Court seeking judicial review 19 of that denial, and the Court now addresses Plaintiff’s Opening Brief (Doc. 14, Pl. Br.), 20 Defendant Social Security Administration Commissioner’s Response Brief (Doc. 15, Def. 21 Br.), and Plaintiff’s Reply Brief (Doc. 18, Reply). The Court has reviewed the briefs and 22 Administrative Record (Doc. 13, R.) and now remands this matter for further consideration 23 consistent with this Order. 24 I. BACKGROUND 25 Plaintiff filed her Application for Disability Insurance benefits on June 17, 2014, 26 alleging disability beginning May 21, 2013. (R. at 41, 61.) Her claim was denied initially 27 on June 2, 2015, and upon reconsideration on December 1, 2015. (R. at 41, 142-54.) On 28 October 25, 2017 Plaintiff appeared at a hearing before the ALJ. (R. at 41, 61-101.) On 1 March 21, 2018, the ALJ denied Plaintiff’s Application, and on March 15, 2019, the 2 Appeals Council denied Plaintiff’s Request for Review and adopted the ALJ’s decision as 3 the agency’s final decision. (R. at 8-10, 41-52.) 4 The Court has reviewed the medical evidence in its entirety and will discuss the 5 pertinent medical evidence in addressing the issues raised by the parties. Upon considering 6 the medical records and opinions, the ALJ evaluated Plaintiff’s disability based on the 7 following severe impairments: degenerative disc disease of the cervical spine; status post 8 discectomy, fusion, and foraminotonomy at C7 and T1; chronic C8 and T1 radiculopathy; 9 and headaches. (R. at 44.) 10 Ultimately, the ALJ evaluated the medical evidence and testimony and concluded 11 that Plaintiff was not disabled from the alleged disability onset-date through the date of the 12 decision. (R. at 42.) The ALJ found that Plaintiff “does not have an impairment or 13 combination of impairments that meets or medically equals the severity of one of the listed 14 impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (R. at 46.) Next, the ALJ 15 calculated Plaintiff’s residual functional capacity (“RFC”): 16 [Plaintiff] has the [RFC] to occasionally lift and carry 10 pounds, frequently lift and carry less than 10 pounds, stand 17 and/or walk for six hours in an eight-hour day, and sit for six hours in an eight-hour day. [Plaintiff] can occasionally push 18 and pull with the left upper extremity. She can frequently balance; can never climb ladders, ropes, or scaffolds; and can 19 never crawl. [Plaintiff] can never reach overhead with the left upper extremity; can occasionally reach overhead with the 20 right upper extremity; and can frequently handle, finger, and feel with the left upper extremity. She can occasionally reach 21 in front of the body and/or laterally with the left upper extremity. [Plaintiff] can have occasional exposure to loud 22 excessive noise and excessive vibration but can have no exposure to dangerous machinery and unprotected heights. 23 24 (R. at 46.) Accordingly, the ALJ found that Plaintiff can perform jobs that exist in 25 significant numbers in the national economy. (R. at 51.) 26 II. LEGAL STANDARD 27 In determining whether to reverse an ALJ’s decision, the district court reviews only 28 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 1 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability 2 determination only if it is not supported by substantial evidence or is based on legal error. 3 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is relevant evidence 4 that a reasonable person might accept as adequate to support a conclusion considering the 5 record as a whole. Id. To determine whether substantial evidence supports a decision, the 6 Court must consider the record as a whole and may not affirm simply by isolating a 7 “specific quantum of supporting evidence.” Id. Generally, “[w]here the evidence is 8 susceptible to more than one rational interpretation, one of which supports the ALJ’s 9 decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 10 (9th Cir. 2002) (citations omitted). 11 To determine whether a claimant is disabled for purposes of the Act, the ALJ 12 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 13 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 14 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 15 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 16 § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 17 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At 18 step three, the ALJ considers whether the claimant’s impairment or combination of 19 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 20 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically 21 found to be disabled. Id. At step four, the ALJ assesses the claimant’s RFC and determines 22 whether the claimant is still capable of performing past relevant work. 20 C.F.R. 23 § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and final step, where she 24 determines whether the claimant can perform any other work in the national economy 25 based on the claimant’s RFC, age, education, and work experience. 20 C.F.R. § 26 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 27 . . . 28 . . . 1 III. ANALYSIS 2 Plaintiff raises two primary arguments for the Court’s consideration. First, Plaintiff 3 argues the ALJ incorrectly rejected her symptom testimony. (Pl. Br. at 11-17.) Second, 4 Plaintiff argues the ALJ improperly weighed the evidence of Dr. Terry McLean, the 5 industrial insurance carrier examiner. (Pl. Br. at 17-22.) 6 The Court agrees with Plaintiff’s arguments and remands for the ALJ to reconsider 7 Plaintiff’s symptom testimony and the testimony of Dr. McLean. The ALJ improperly 8 rejected Plaintiff’s symptom testimony because she did not provide specific, clear, and 9 convincing reasons for rejecting the testimony. Further, the ALJ incorrectly rejected Dr. 10 McLean’s opinion that Plaintiff would need to change positions from sitting to standing 11 frequently because she did not provide evidence to support its rejection. 12 A. The ALJ erred by improperly weighing Plaintiff’s testimony. 13 Plaintiff contends the ALJ erred in rejecting her symptom testimony. (Pl. Br. at 11- 14 17.) An ALJ performs a two-step analysis to evaluate a claimant’s testimony regarding 15 pain and symptoms. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). First, the 16 ALJ evaluates whether the claimant has presented objective medical evidence of an 17 impairment “which could reasonably be expected to produce the pain or symptoms 18 alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (quoting Bunnell 19 v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal quotation marks 20 omitted)). Second, absent evidence of malingering, an ALJ may only discount a claimant’s 21 allegations for reasons that are “specific, clear and convincing” and supported by 22 substantial evidence. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). This is the 23 most demanding standard in Social Security cases. Garrison, 759 F.3d at 1014-15. 24 “[T]he ALJ must specifically identify the testimony she or he finds not to be credible 25 and must explain what evidence undermines the testimony.” Holohan v. Massanari, 246 26 F.3d 1195, 1208 (9th Cir. 2001). General findings are insufficient. Id. “Although the 27 ALJ’s analysis need not be extensive, the ALJ must provide some reasoning in order for 28 [the Court] to meaningfully determine whether the ALJ’s conclusions were supported by 1 substantial evidence.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th 2 Cir. 2014). “[T]he ALJ may consider inconsistencies either in the claimant’s testimony or 3 between the testimony and the claimant’s conduct.” Molina, 674 F.3d at 1112. For 4 instance, the ALJ may consider “‘whether the claimant engages in daily activities 5 inconsistent with the alleged symptoms.’” Id. (quoting Lingenfelter, 504 F.3d at 1040). 6 “Even where those activities suggest some difficulty functioning, they may be grounds for 7 discrediting the claimant’s testimony to the extent that they contradict claims of a totally 8 debilitating impairment,” id. at 1113, or where they suggest that “later claims about the 9 severity of [the] limitations were exaggerated,” Valentine v. Astrue, 574 F.3d 685, 694 (9th 10 Cir. 2009). Additionally, the ALJ may consider “whether the claimant takes medication or 11 undergoes other treatment for the symptoms.” Lingenfelter, 504 F.3d at 1040; see 20 12 C.F.R. § 404.1529(c)(3). “Impairments that can be controlled effectively with medication 13 are not disabling.” Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 14 2006). The ALJ may properly consider that the medical record lacks evidence to support 15 certain symptom testimony, but that cannot form the sole basis for discounting the 16 testimony. Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 17 The ALJ rejected Plaintiff’s symptom testimony for two reasons, both of which 18 were flawed. First, the ALJ rejected Plaintiff’s symptom testimony based on Plaintiff’s 19 medical history. (R. at 47.) Second, the ALJ rejected Plaintiff’s symptom testimony based 20 on Plaintiff’s activities of daily living (ADLs). (R. at 49.) The ALJ did not provide 21 “specific, clear and convincing” reasons for rejecting Plaintiff’s testimony. Garrison, 759 22 F.3d at 1014. 23 The ALJ’s finding that Plaintiff’s statements were inconsistent with the medical 24 records showed little consideration of relevant medical records. (R. at 40.) For example, 25 the ALJ found that Plaintiff “does not rely on narcotic medications for pain, which is not 26 consistent with her allegations of needing frequent rest breaks.” (R. at 49.) The ALJ failed 27 to mention that Plaintiff is allergic to narcotics, as Plaintiff explained at the hearing, which 28 is why she uses other treatment options to manage her pain. (R. at 70.) Additionally, 1 Plaintiff correctly notes the ALJ provided no support to show that if Plaintiff were taking 2 narcotics she would need to take breaks less frequently. (Pl. Br. at 14.) This reasoning is 3 flawed because it assumes Plaintiff would not need frequent rest breaks if she were taking 4 narcotics, and it does not account for the fact that Plaintiff is allergic to narcotics. 5 The ALJ also found that Plaintiff’s headaches are managed with medication and that 6 an MRI could not confirm lesions were present; this reasoning does not logically follow 7 from the cited MRI, however. (R. at 49.) The MRI showed “several punctate T2 and 8 FLAIR hyperintensities in the periventricular and subcortical white matter, greater than 9 expected for the patients age. Findings are nonspecific but may be seen in the setting of 10 chronic migraines, vasculitis, early stigmata or small vessel disease, demyelinating process 11 or prior trauma.” (R. at 1544.) The ALJ’s opinion ignores the MRI finding of chronic 12 migraines, but the ALJ still cites to the MRI in finding Plaintiff does not have headaches 13 or migraines. 14 The ALJ’s analysis of Plaintiff’s ADLs was similarly flawed. The ALJ stated that 15 Plaintiff’s ADLs were not consistent with her allegations. (R. at 49.) The ALJ opined that 16 Plaintiff’s ADLs were not consistent with her allegations because she can walk for 20 to 17 30 minutes, drive short distances, and fly to California for treatment. (R. at 49.) The ALJ’s 18 analysis ends there, however, and does not explain how Plaintiff’s ADLs are inconsistent 19 with her allegations. The ALJ has not met the standard of “specific, clear and convincing” 20 by simply indicating the Plaintiff’s ADLs are not consistent with her symptom testimony 21 but providing no further detail. See Garrison, 759 F.3d at 1014. 22 Since the ALJ provided inadequate reasoning for rejecting Plaintiff’s symptom 23 testimony, the Court finds error. 24 B. The ALJ erred in weighing the opinion of Plaintiff’s examining physician, Dr. McLean. 25 An ALJ “may only reject a treating or examining physician’s uncontradicted 26 medical opinion based on ‘clear and convincing reasons.’” Carmickle v. Comm’r of Soc. 27 Sec., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester v. Chater, 81 F. 3d 821, 830-31 28 (9th Cir. 1996)). “Where such an opinion is contradicted, however, it may be rejected for 1 specific and legitimate reasons that are supported by substantial evidence in the record.” 2 Id. An ALJ meets this standard by “setting out a detailed and thorough summary of the 3 facts and conflicting medical evidence, stating his interpretation thereof, and making 4 findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 5 The ALJ assigned substantial weight to Dr. McLean’s opinions with one 6 exception—the ALJ assigned little weight to his opinion that Plaintiff would need to 7 change positions every 30-60 minutes throughout the workday. (Pl. Br. at 17-18; R. at 49- 8 50, 710, 1287.) The ALJ stated that she rejected the opinion because Dr. McLean did not 9 refer to any specific medical findings to support the opinion, and that Dr. McLean’s 10 examination reflected “normal findings related to [Plaintiff’s] lumb[a]r spine and lower 11 extremities, including no difficulty getting from a sitting to standing position.” (R. at 50, 12 707, 1284.) 13 Here, the ALJ’s reasoning for giving little weight to Dr. McLean’s opinion is not 14 supported by specific and legitimate reasons. The ALJ’s reliance on a finding that Plaintiff 15 does not have difficulty switching from sitting to standing is not obviously relevant to Dr. 16 McLean’s opinion that Plaintiff needs to change positions every 30-60 minutes. Dr. 17 McLean opined both that Plaintiff had no difficulty switching from one position to the 18 other and that Plaintiff would need to change positions every 30-60 minutes—these two 19 opinions are not mutually exclusive. (R. at 50, 707, 710, 1284, 1287.) Dr. McLean’s 20 opinion is not saying that Plaintiff cannot get from one position to another, his opinion is 21 that Plaintiff needs to get from one position to another. The ALJ’s finding that Plaintiff 22 can move from one position to another proves nothing because Dr. McLean never opined 23 that Plaintiff could not move from one position to another. 24 Further, the ALJ noted that Plaintiff had difficulty sitting still at the hearing. (R. at 25 79.) Specifically, the ALJ stated Plaintiff was “extremely fidgety and moving around the 26 chair,” noting that she could only sit still for a moment. (R. at 79.) The ALJ asked Plaintiff 27 why she was not sitting still, and she explained that “[s]mall adjustments help with a little 28 bit of relief. It’s constant on the nerves, so sometimes just small adjustments help to just 1 take that bite.” (R. at 80.) She said it was hard to find a position. (R. at 80.) The ALJ 2 gave little weight to Dr. McLean’s opinion even after she observed that Plaintiff was not 3 able to sit without fidgeting out of discomfort. The ALJ observed Dr. McLean’s opinions 4 in action. Plaintiff had no issues switching positions but needed to repeatedly do so. Thus, 5 because the ALJ failed to provide a specific and legitimate reason for assigning little weight 6 to Dr. McLean’s opinion, the Court remands this matter so the ALJ can reanalyze Dr. 7 McLean’s opinion. 8 C. The Credit-as-True Rule Does Not Apply. 9 Plaintiff asks the Court to apply the “credit-as-true” rule, which would result in a 10 remand of Plaintiff’s case for payment of benefits rather than for further proceedings. (Pl. 11 Br. at 22–23.) The credit-as-true rule only applies in cases where three elements are 12 present. Treichler, 775 F.3d at 1099-1102. First, the ALJ must have failed to provide 13 legally sufficient reasons for rejecting medical evidence. Id. at 1100. Second, the record 14 must be fully developed, there must be no outstanding issues that must be resolved before 15 a determination of disability can be made, and the Court must find that further 16 administrative proceedings would not be useful. Id. at 1101. Further proceedings are 17 considered useful when there are conflicts and ambiguities that must be resolved. Id. 18 Third, if the above elements are met, the Court may “find[] the relevant testimony credible 19 as a matter of law . . . and then determine whether the record, taken as a whole, leaves ‘not 20 the slightest uncertainty as to the outcome of [the] proceeding.’” Id. (citations omitted). 21 In this case, the ordinary remand rule, not the credit-as-true rule applies. Because 22 the ALJ did not correctly evaluate the opinion of Dr. McLean, this case still presents 23 evidentiary ambiguities that must be resolved. Specifically, the ALJ did not properly 24 address whether Plaintiff needs to change positions frequently and what effect that 25 limitation would have on her job prospects. 26 Accordingly, the Court will remand this matter to the ALJ for further development 27 of the record and a new disability determination. 28 1 IT IS THEREFORE ORDERED remanding this matter to the Social Security 2|| Administration for further proceedings consistent with the Order. Specifically, the ALJ 3 || must consider Plaintiff's symptom testimony and reanalyze Dr. McLean’s opinion. 4 IT IS FURTHER ORDERED directing the Clerk to enter judgment accordingly □□ and close this case. 6 Dated this 8th day of October, 2020. 7 f

9 Honorable Deborah M. Fine United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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