Reed v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: May 14, 2020
• Docket: 2:19-cv-04666
• Status: Unknown

Opinion

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

9 Zulema Reed, No. CV-19-04666-PHX-SPL

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14

15 16 At issue is the denial of Plaintiff Zulema Reed’s Applications for Disability 17 Insurance Benefits and Supplemental Security Income by the Social Security 18 Administration (SSA) under the Social Security Act. Plaintiff filed a Complaint (Doc. 1) 19 with this Court seeking judicial review of that denial, and the Court now addresses 20 Plaintiff’s Opening Brief (Doc. 15, Pl. Br.), Defendant SSA Commissioner’s Response 21 Brief (Doc. 18, Def. Br.), and Plaintiff’s Reply (Doc. 21, Reply). The Court has reviewed 22 the briefs and Administrative Record (Doc. 11, R.) and now reverses the Administrative 23 Law Judge’s (ALJ) decision (R. at 10–36) as upheld by the Appeals Council (R. at 1–6). 24 I. BACKGROUND 25 Plaintiff filed applications for Disability Insurance Benefits and Supplemental 26 Security Income on February 5, 2016. (R. at 13.) For each application Plaintiff alleged an 27 amended disability onset date beginning on June 1, 2015. (R. at 40.) Her claims were 28 denied initially on September 2, 2016, and upon reconsideration on December 22, 2016. 1 (R. at 13.) On February 15, 2018, Plaintiff appeared before the ALJ for a hearing regarding 2 her claims. (R. at 13.) On August 3, 2018, the ALJ denied Plaintiff’s claims, and on May 3 7, 2019, the Appeals Council denied Plaintiff’s Request for Review of the ALJ’s decision. 4 (R. at 1, 29.) 5 The Court has reviewed the medical evidence in its entirety and finds it unnecessary 6 to provide a complete summary here. The Court will discuss the pertinent medical evidence 7 in addressing the issues raised by the parties. Upon considering the medical records and 8 opinions, the ALJ evaluated Plaintiff’s disability based on the following severe 9 impairments: dysfunction of major joint, affective anxiety disorder, and borderline 10 personality disorder. (R. at 15.) 11 Ultimately, the ALJ evaluated the medical evidence and testimony and concluded 12 that Plaintiff is not disabled. (R. at 29.) The ALJ determined that Plaintiff “does not have 13 an impairment or combination of impairments that meets or medically equals the severity 14 of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.” (R. at 16.) 15 The ALJ also calculated Plaintiff’s residual functional capacity (RFC) and found that 16 Plaintiff has the RFC to perform light work, except she “can lift and/or carry twenty-five 17 pounds frequently, twenty pounds occasionally; she can stand and/or walk for six hours 18 out of an eight-hour workday; she can sit for six hours out of an eight-hour workday; she 19 can frequently climb ramps and stairs, balance, and stoop; she can occasionally climb 20 ladders, ropes and scaffolds, kneel, crouch and crawl; she is to avoid moderate exposure to 21 hazards; she is limited to simple, repetitive tasks; and she is to have no more than 22 occasional social interaction.” (R. at 18.) Accordingly, the ALJ found that Plaintiff can 23 perform jobs that exist in significant numbers in the national economy and is not disabled. 24 (R. at 28.) 25 II. LEGAL STANDARDS 26 In determining whether to reverse an ALJ’s decision, the district court reviews only 27 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 28 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability 1 determination only if it is not supported by substantial evidence or is based on legal error. 2 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is relevant evidence 3 that a reasonable person might accept as adequate to support a conclusion considering the 4 record as a whole. Id. To determine whether substantial evidence supports a decision, the 5 Court must consider the record as a whole and may not affirm simply by isolating a 6 “specific quantum of supporting evidence.” Id. Generally, “[w]here the evidence is 7 susceptible to more than one rational interpretation, one of which supports the ALJ’s 8 decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 9 (9th Cir. 2002) (citations omitted). 10 To determine whether a claimant is disabled for purposes of the Act, the ALJ 11 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 12 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 13 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 14 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 15 § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 16 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At 17 step three, the ALJ considers whether the claimant’s impairment or combination of 18 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 19 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically 20 found to be disabled. Id. At step four, the ALJ assesses the claimant’s residual functional 21 capacity (RFC) and determines whether the claimant is still capable of performing past 22 relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and 23 final step, where she determines whether the claimant can perform any other work in the 24 national economy based on the claimant’s RFC, age, education, and work experience. 20 25 C.F.R. § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 26 III. ANALYSIS 27 Plaintiff raises several arguments for the Court’s consideration. Plaintiff’s 28 arguments primarily challenge the ALJ’s evaluation of Plaintiff’s symptom testimony and 1 the available medical opinions. (Pl. Br. at 13, 20.) The Court agrees with Plaintiff’s 2 arguments that the ALJ misevaluated Plaintiff’s symptom testimony and the opinion of 3 Plaintiff’s examining doctor, Maryann Latus, Ph.D. Accordingly, the Court reverses the 4 ALJ’s decision.1 5 A. Substantial evidence does not support the ALJ’s rejection of Plaintiff’s symptom testimony. 6 7 Plaintiff testified that her functional limitations stem from disabling physical and 8 mental impairments. She testified that her physical impairments cause pain in her neck, 9 back, and extremities. (R. at 43–44.) Further, she testified that her symptoms cause her to 10 lie down several times per day and limit her ability to walk, sit, and stand without 11 limitations. (R. at 43–48.) She requires a cane to ambulate without falling. (R. at 46.) 12 Plaintiff also testified that her mental impairments cause her to stay in bed and cry several 13 times per week. (R. at 51.) She testified that she has issues with her memory and 14 concentration. (R. at 52.) Finally, she testified that she has been hospitalized three times 15 because of issues with self-harm. (R. at 52.) 16 The ALJ rejected Plaintiff’s testimony for three reasons. First, the ALJ found that 17 Plaintiff “has engaged in a somewhat normal level of daily activity and interaction.” (R. at 18 19.) Specifically, the ALJ found that her daily activities “replicate those necessary for 19 obtaining and maintaining employment.” (R. at 19.) Second, the ALJ found that Plaintiff’s 20 treatment of her impairments has been “routine, [and] conservative.” (R. at 20.) Finally, 21 the ALJ found that the medical evidence does not substantiate the magnitude of Plaintiff’s 22 allegations. (R. at 20.) 23 An ALJ performs a two–step analysis to evaluate a claimant’s testimony regarding 24

25 1 Plaintiff also argues that the ALJ erred by failing to recognize Plaintiff’s amended 26 disability onset date. (Pl. Br. at 20.) Plaintiff is correct that the ALJ erred in failing to evaluate Plaintiff’s claims using the correct onset date. (R. at 13.) Nevertheless, this error 27 was harmless because the ALJ necessarily evaluated Plaintiff’s alleged disability during the period Plaintiff alleges she was disabled since the ALJ evaluated Plaintiff’s disability 28 claims over a period of time that completely included the time period Plaintiff alleges she was disabled. (R. at 14.) See Molina v. Astrue, 674 F.3d 1104, 1122 (9th Cir. 2012) 1 pain and symptoms. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). First, the ALJ 2 evaluates whether the claimant has presented objective medical evidence of an impairment 3 “which could reasonably be expected to produce the pain or symptoms alleged.” 4 Lingenfelter, 504 F.3d 1028, 1035–36 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 5 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal quotation marks omitted)). If the claimant 6 presents such evidence then “the ALJ can reject the claimant’s testimony about the severity 7 of her symptoms only by offering specific, clear and convincing reasons for doing so.” 8 Garrison, 759 F.3d at 1014–15 (citing Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 9 1996)). This is the most demanding standard in Social Security cases. Id. at 1015. “In 10 evaluating the credibility of pain testimony after a claimant produces objective medical 11 evidence of an underlying impairment, an ALJ may not reject a claimant’s subjective 12 complaints based solely on a lack of medical evidence to fully corroborate the alleged 13 severity of pain.” Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). 14 Though the ALJ offered valid reasons for rejecting Plaintiff’s testimony, none are 15 supported by substantial evidence. Contrary to the ALJ’s conclusion, the medical evidence 16 largely substantiates Plaintiff’s allegations regarding her mental limitations. The ALJ’s 17 finding that “[m]ental status evaluations were generally within normal limits between April 18 6, 2016 and December 13, 2017,” belies the evidence contained in the medical records that 19 the ALJ used to support that finding. (R. at 25.) While the mental status evaluations 20 contained in the records cited by the ALJ were generally normal, those same records also 21 evidence serious functional limitations due to Plaintiff’s mental impairments that the ALJ 22 did not identify or discuss. (R. at 25.) 23 For example, the ALJ cites a September 9, 2016, hospital Discharge Summary to 24 support his conclusion that “[m]ental status evaluations were generally within normal 25 limits.” (R. at 25, 972.) However, the ALJ does mention that the same medical record 26 indicates that Plaintiff was admitted to the hospital because of her suicidal intentions, self- 27 harm, and auditory hallucinations. (R. at 970.) Furthermore, Plaintiff was still having 28 auditory hallucinations and paranoia at the time of her discharge from the hospital. (R. at 1 972.) Similarly, despite the normal mental status evaluations between April 6, 2016 and 2 December 13, 2017, Plaintiff was hospitalized three times during that period because of 3 suicidal intentions. (R. at 970, 1139, 1320, 1549, 1585–99.) These incidents plainly 4 contradict the ALJ’s conclusion that Plaintiff’s mental status was normal during the 5 relevant period of time. Instead, Plaintiff’s medical records reflect pervasive and consistent 6 issues due to her mental impairments, including issues with hallucinations and self-harm. 7 (R. at 1004, 1007, 1011, 1150, 1210, 1216, 1445, 1449, 1476.) Thus, substantial evidence 8 does not support the ALJ’s conclusion that the medical evidence contradicts Plaintiff’s 9 allegations. See Holohan v. Massanari, 246 F.3d 1195, 1207 (9th Cir. 2001). 10 Similarly, substantial evidence does not support the ALJ’s conclusion that 11 Plaintiff’s treatment has been conservative. The record indicates that Plaintiff’s treatment 12 of both her physical and mental impairments has been extensive rather than conservative. 13 Plaintiff has repeatedly received narcotic pain medications, neuropathic-pain medication, 14 nerve block and ablation procedures, and epidural steroid injections. (R. at 751–52, 1079– 15 84, 1086–89, 1090–93, 1098–1100, 1102–04, 1110–12, 1114–16, 1124–25, 1128–29.) 16 These treatments are not properly considered conservative. See Garrison, 759 F.3d at 1015 17 n. 20. 18 Finally, substantial evidence does not support the ALJ’s conclusion that Plaintiff’s 19 activities of daily living were inconsistent with her alleged disability. The ALJ failed to 20 make the required specific findings that demonstrate that Plaintiff’s actual daily activities 21 are inconsistent with disability. Instead, the ALJ made only a general finding that Plaintiff’s 22 daily activities “replicate those necessary for obtaining and maintaining employment.” (R. 23 at 19.) See Zavalin v. Colvin, 778 F.3d 842, 848 (9th Cir. 2014) (finding ALJ improperly 24 relied on a claimant’s activities where there was no evidence as to the extent, manner or 25 complexity of the activities). The daily activities the ALJ cited, without greater specificity, 26 do not indicate that Plaintiff can perform work on a sustained basis. (R. at 19.) These 27 findings were necessary because Plaintiff testified that she could perform limited daily 28 activities only with significant restrictions due to her impairments. (R. at 45–54.) Thus, the 1 ALJ’s failure to make specific findings regarding Plaintiff’s daily activities was error. 2 Consequently, the ALJ did not offer a sufficient basis for rejecting Plaintiff’s symptom 3 testimony. 4 B. Substantial evidence does not support the ALJ’s evaluation of the opinion of Plaintiff’s examining doctor, Maryann Latus, Ph.D.2 5 6 On August 16, 2016, Maryann Latus, Ph. D., performed a psychiatric examination 7 of Plaintiff. (R. at 957.) She reviewed only Plaintiff’s function report and Dr. Alexander 8 Piatka’s previous psychiatric examination findings. (R. at 957.) Dr. Latus found that 9 Plaintiff met the diagnostic criteria for posttraumatic stress disorder and persistent 10 depressive disorder with mood congruent psychotic features. (R. at 961.) During the 11 examination, Plaintiff reported experiencing visual hallucinations of her deceased uncle. 12 (R. at 959.) Plaintiff was very tearful during the exam and Dr. Latus found that her “mental 13 health symptoms may impact her functioning in that she may have difficulty leaving her 14 home at times, initiating contact with others, trusting other people, maintaining ongoing 15 relationships with others and focusing on tasks.” (R. at 961.) Dr. Latus found that Plaintiff 16 would have limitations in (1) sustained concentration and persistence, (2) social interaction, 17 and (3) adapting to change, but could function in a work environment “if she has ample 18 time to complete the task . . . [and] if she feels that she is in a supportive work 19 environment.” (R. at 962.) 20 While “[t]he ALJ must consider all medical opinion evidence,” there is a hierarchy 21 among the sources of medical opinions. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 22 2008). Those who have treated a claimant are treating physicians, those who examined but 23 did not treat the claimant are examining physicians, and those who neither examined nor 24 treated the claimant are nonexamining physicians. Lester v. Chater, 81 F.3d 821, 830 (9th 25 Cir. 1995). Similarly, “[t]he opinion of an examining physician is . . . [generally] entitled to 26 27 2 The Court has considered Plaintiff’s arguments regarding the ALJ’s consideration of the remaining medical opinions contained in the record. (Pl. Br. at 20, 24–25.) The Court 28 rejects the arguments and finds that the ALJ correctly evaluated the remaining medical opinions contained in the record. 1 greater weight than the opinion of a nonexamining physician.” Lester, 81 F.3d at 830. “[T]he 2 opinion of an examining doctor, even if contradicted by another doctor, can only be rejected 3 for specific and legitimate reasons that are supported by substantial evidence in the record.” 4 Id. at 830–31. 5 The ALJ found that Dr. Latus opined that Plaintiff has mild to moderate functional 6 limitations and gave Dr. Latus’s opinion great weight.3 (R. at 27.) This finding is not 7 supported by substantial evidence. Even if Dr. Latus’s opined to limitations could be 8 considered mild to moderate, such an opinion would not be supported by substantial 9 evidence because of the severe limitations Plaintiff demonstrated during Dr. Latus’s 10 examination. (R. at 957–62.) Instead, Plaintiff’s tearful presentation and visual hallucinations 11 during the exam are inconsistent with a conclusion that Dr. Latus opined to only mild or 12 moderate limitations. Neither are the several limitations that Dr. Latus opined “may impact 13 her functioning.” (R. at 961.) Furthermore, Dr. Latus opined equivocally regarding 14 Plaintiff’s limitations, noting that Plaintiff could function in a workplace only “if she has 15 ample time to complete the task . . . [and] if she feels that she is in a supportive work 16 environment.” (R. at 962.) The ALJ did not address these limitations or present them to the 17 vocational expert. (R. at 57–67.) Accordingly, it is inconclusive whether Dr. Latus’s 18 opinion is consistent with Plaintiff sustaining work, and thus, substantial evidence does not 19 support the ALJ’s consideration of the opinion. 20 C. The proper remedy is to remand this case for further proceedings. 21 The credit-as-true rule, if applied here, would result in a remand of Plaintiff’s case 22 for a calculation and payment of benefits. See Garrison, 759 F.3d at 1020. It applies if each 23 part of a three–part test is satisfied. Id. First, the record must have been fully developed 24 and further administrative proceedings would serve no useful purpose. Id. Next, the ALJ 25 26 3 The ALJ also gave great weight to the opinion of Dr. Piatka and found that Dr. Piatka opined to mild to moderate limitations. (R. at 27.) Dr. Piatka performed a 27 consultative examination in January 2014, but reviewed minimal medical records in preparation for the exam. (R. at 592.) Furthermore, Dr. Piatka found that Plaintiff has 28 significant work-related restrictions, including a poor ability to sustain work attendance. (R. at 598–99.) 1 must have failed to provide sufficient reasons for rejecting the claimant’s testimony or 2 medical opinions. Id. Finally, if the improperly discredited evidence were credited as true, 3 then the ALJ would be required to find the claimant disabled. Id. Even if all elements of 4 the credit-as-true rule are met, the Court maintains “flexibility to remand for further 5 proceedings when the record as a whole creates serious doubt as to whether the claimant 6 is, in fact, disabled within the meaning of the Social Security Act.” Id. 7 Although the ALJ errantly rejected Plaintiff’s symptom testimony and Dr. Latus’s 8 opinion, the Court finds that further administrative proceedings would serve a useful 9 purpose. Accordingly, the Court remands this case for further development of the record. 10 Significantly, no treating physician has opined to disabling limitations. Furthermore, the 11 medical opinions and evidence regarding Plaintiff’s physical limitations support the ALJ’s 12 conclusions. For example, the ALJ noted that the medical records reflect Plaintiff’s 13 inconsistent use of assistive devices for walking, and Dr. John Peachy had concerns 14 regarding the veracity of Plaintiff’s statements. (R. at 22, 23.) Conversely, the ALJ 15 understated the limitations opined to by Dr. Piatka and Dr. Latus, and additionally, these 16 opinions may be of limited significance because the doctors relied on minimal medical 17 records in conducting their exams. (R. 592–93, 957.) Accordingly, further proceedings are 18 required to clarify Plaintiff’s functional limitations and capabilities 19 IT IS THEREFORE ORDERED reversing the August 3, 2018 decision of the 20 Administrative Law Judge (R. at 10–29), as upheld by the Appeals Council on May 7, 2019 21 (R. at 1–6.) 22 IT IS FURTHER ORDERED remanding this case to the Social Security 23 Administration for further proceedings consistent with this Order. 24 /// 25 /// 26 /// 27 /// 28 /// 1 IT IS FURTHER ORDERED directing the Clerk to enter final judgment || consistent with this Order and close this case. 3 Dated this 13th day of May, 2020. 4

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