Youssef v. Commissioner of Social Security Administration

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Ashraf Youssef, No. CV-19-00396-PHX-JZB 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, [13] Defendant. [15] 16 At issue is the denial of Plaintiff Ashraf Youssef’s Application for Disability 17 Insurance Benefits by the Social Security Administration under the Social Security Act 18 (The Act). Plaintiff filed a Complaint (doc. 1) with this Court seeking judicial review of 19 that denial, and the Court now addresses Plaintiff’s Opening Brief (doc. 9), Defendant 20 Social Security Administration Commissioner’s Response Brief (doc. 10), and Plaintiff’s 21 Reply Brief (doc. 11). The Court has reviewed the briefs and Administrative Record (doc. 22 8) and now reverses the Administrative Law Judge’s (ALJ) decision (AR 26-44) as upheld 23 by the Appeals Council (AR 1-6). 24 I. Background. 25 On May 29, 2015, Plaintiff filed an application for Disability Insurance Benefits for 26 a period of disability beginning on May 5, 2014. (AR 29.) His claim was denied initially 27 on August 1, 2015, and upon reconsideration on January 22, 2016. (AR 29.) On March 5, 28 2018, Plaintiff appeared before the ALJ for a hearing regarding his claim. (AR 29.) On 1 June 11, 2018, the ALJ denied Plaintiff’s claim, and on December 20, 2018, the Appeals 2 Council denied Plaintiff’s Request for Review of the ALJ’s decision. (AR 1, 29.) 3 The Court has reviewed the medical evidence in its entirety and finds it unnecessary 4 to provide a complete summary here. The pertinent medical evidence will be discussed in 5 addressing the issues raised by the parties. Upon considering the medical records and 6 opinions, the ALJ evaluated Plaintiff’s disability based on the following severe 7 impairments: degenerative disc disease of the cervical and thoracic spine (DDD), 8 polyneuropathy diabetes, artherosclerotic heart disease of native coronary artery, status9 post left heart catheterization, malignant carcinoid tumor of the duodenum, sleep apnea, 10 obesity, cardiomyopathy, diabetes mellitus, chronic prostatitis, and premature ventricular 11 contractions. (AR 31.) 12 Ultimately, the ALJ evaluated the medical evidence and testimony and concluded 13 that Plaintiff is not disabled. (AR 38.) The ALJ determined that Plaintiff “does not have an 14 impairment or combination of impairments that meets or medically equals the severity of 15 one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.” (AR 32.) 16 Additionally, the ALJ determined that Plaintiff has the residual functional capacity (RFC) 17 to “perform light work . . . except he could never climb ladders, ropes or scaffolds but could 18 occasionally climb ramps and stairs. He could frequently balance, stoop, kneel, crouch and 19 crawl. He must not have exposure to hazards or extreme cold or heat.” (AR 33.) 20 Accordingly, the ALJ found Plaintiff can perform his past relevant work as a software 21 engineer. (AR 37.) 22 II. Legal Standard. 23 In determining whether to reverse an ALJ’s decision, the district court reviews only 24 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503 , 25 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability 26 determination only if the determination is not supported by substantial evidence or is based 27 on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is 28 more than a scintilla, but less than a preponderance; it is relevant evidence that a reasonable 1 person might accept as adequate to support a conclusion considering the record as a whole. [2] Id. To determine whether substantial evidence supports a decision, the Court must consider 3 the record as a whole and may not affirm simply by isolating a “specific quantum of 4 supporting evidence.” Id. Generally, “[w]here the evidence is susceptible to more than one 5 rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion 6 must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations 7 omitted). 8 To determine whether a claimant is disabled for purposes of the Act, the ALJ 9 follows a five-step process. 20 C.F.R. § 404.1520 (a). The claimant bears the burden of 10 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 11 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 12 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 13 § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 14 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520 (a)(4)(ii). At 15 step three, the ALJ considers whether the claimant’s impairment or combination of 16 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 17 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520 (a)(4)(iii). If so, the claimant is automatically 18 found to be disabled. Id. At step four, the ALJ assesses the claimant’s RFC and determines 19 whether the claimant is still capable of performing past relevant work. 20 C.F.R. 20 § 404.1520(a)(4)(iv). If so, the claimant is not disabled, and the inquiry ends. Id. At the 21 fifth and final step, the ALJ determines whether the claimant can perform any other work 22 in the national economy based on the claimant’s RFC, age, education, and work experience. [23] 20 C.F.R. § 404.1520 (a)(4)(v). If not, the claimant is disabled. Id. 24 III. Analysis. 25 Plaintiff raises two arguments for the Court’s consideration. (Doc. 9 at 1.) First, 26 Plaintiff argues that the ALJ erroneously rejected his testimony regarding the severity of 27 his symptoms. (Id. at 12.) Second, Plaintiff argues that the ALJ misevaluated the opinion [28] 1 of Dr. Rami Doss, Plaintiff’s treating cardiologist.1 The Court agrees with both arguments. 2 A. The ALJ erred because she rejected Plaintiff’s testimony for an 3 insufficient reason—a lack of supporting objective medical evidence. 4 At his hearing before the ALJ, Plaintiff testified to various functional limitations 5 stemming from his medical impairments. Specifically, he testified that he could not 6 perform sedentary work because of issues with focus, dizziness, balance, memory, 7 excessive sweating, and sleep. (AR 143-44.) He also testified regarding the surgeries on 8 his heart and abdomen, but claimed that his symptoms have persisted and progressed. (AR 9 142-44.) Finally, he testified regarding walking and standing limitations due to 10 musculoskeletal impairments and diabetic neuropathy. (AR 145-47.) According to the 11 vocational expert, these limitations, if they caused Plaintiff to be off task for more than ten 12 percent of a workday, would preclude employment. (AR 151.) 13 The ALJ rejected Plaintiff’s testimony regarding his symptoms because Plaintiff’s 14 “statements concerning the intensity, persistence and limiting effects of these symptoms 15 are not entirely consistent with the medical evidence and other evidence in the record.” 16 (AR 33-34.) The ALJ summarized the medical findings related to Plaintiff’s impairments. 17 (AR 34-35.) She noted that some of these findings undermine Plaintiff’s statements 18 regarding his symptoms. (AR 33-35.) However, many of the findings the ALJ summarized 19 appear to bolster Plaintiff’s testimony. (AR 34-35.) Finally, the ALJ stated that she 20 considered Plaintiff’s statements to medical providers (AR 35.) Notably, she cited a single 21 record in March 2016 that indicated that Plaintiff denied certain symptoms at that 22 appointment. (AR 35.) 23 An ALJ performs a two-step analysis to evaluate a claimant’s testimony regarding 24 pain and symptoms. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). First, the ALJ [25] 1 Plaintiff also argues that the ALJ failed to adopt the standing and walking 26 limitations opined to by Dr. Jerry Dodson, a non-examining physician who evaluated Plaintiff’s functional capacity. (Doc. 9 at 11.) The Court disagrees. The ALJ gave Dr. 27 Dodson’s opinion great weight and the ALJ accounted for the limitations in Plaintiff’s RFC. Additionally, the ALJ was not required to accept every limitation Dr. Dodson opined 28 to. See Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155, 1164 (9th Cir. 2008) (noting that ALJs are not required to accept medical opinions wholesale). 1 evaluates whether the claimant has presented objective medical evidence of an impairment 2 “which could reasonably be expected to produce the pain or symptoms alleged.” 3 Lingenfelter v. Astrue, 504 F.3d 1028 , 1035–36 (9th Cir. 2007) (quoting Bunnell v. 4 Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal quotation marks omitted)). 5 If the claimant presents such evidence then “the ALJ can reject the claimant’s testimony 6 about the severity of her symptoms only by offering specific, clear and convincing reasons 7 for doing so.” Garrison, 759 F.3d at 1014 -15 (citing Smolen v. Chater, 80 F.3d 1273 , 1281 8 (9th Cir. 1996)). This is the most demanding standard in Social Security cases. Id. at 1015. 9 “In evaluating the credibility of pain testimony after a claimant produces objective medical 10 evidence of an underlying impairment, an ALJ may not reject a claimant’s subjective 11 complaints based solely on a lack of medical evidence to fully corroborate the alleged 12 severity of pain.” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). 13 Here, the ALJ erred because the only reason she gave for rejecting Plaintiff’s 14 testimony was that it was purportedly unsupported by the medical evidence. (AR 33-35.) 15 An ALJ is permitted to reduce the weight given to a claimant’s testimony because it 16 unsupported by objective medical evidence, but it cannot be the sole reason the testimony 17 is rejected. Burch, 400 F.3d at 681 . Both Plaintiff and Defendant confuse the law on this 18 issue. (Doc. 9 at 13-14, Doc. 10 at 10.) None of the cases cited by either party support the 19 proposition that an ALJ may reject a claimant’s testimony solely because it is unsupported 20 by the objective medical evidence. Regardless of whether the lack of support is 21 characterized as an inconsistency or a contradiction, a mere lack of support, without more, 22 is insufficient to reject a claimant’s testimony. Burch, 400 F.3d at 680 . 23 Conversely, actual inconsistencies in a claimant’s testimony or statements, without 24 more, are a sufficient reason to reject a claimant’s testimony. Moisa v. Barnhart, 367 F.3d 25 882, 885 (9th Cir. 2004). These inconsistencies are not merely reports of the absence of 26 symptoms in isolated medical records. Instead, they are actual statements by the claimant 27 or others that undermine the credibility of the claimant’s testimony. [28] 1 In this case there were no inconsistencies in Plaintiff’s testimony or statements. The 2 medical record the ALJ cited where Plaintiff denied “bladder symptoms, bowel symptoms, 3 numbness, tingling, confusion, memory loss, speech disorder, weakness, muscle twitching, 4 cramping, headaches, vertigo, dizziness, imbalance or falling, blurred vision or difficulty 5 with gait walking” (AR 35), is not an inconsistency in Plaintiff’s testimony or statements. 6 The absence of symptoms described in the record are more appropriately considered an 7 absence of certain medical evidence, rather than inconsistent statements that reflect on 8 Plaintiff’s credibility.2 9 Because the only reason the ALJ provided for rejecting Plaintiff’s symptom 10 testimony was a purported lack of objective medical support, she erred 11 B. The ALJ also erred by rejecting the opinion of Dr. Ramy Doss, 12 Plaintiff’s treating cardiologist. 13 Dr. Doss opined to various impairments and limitations that interfered with 14 Plaintiff’s ability to perform his work as a software engineer. (AR 544-45.) Dr. Doss 15 described 11 different impairments and symptoms including: dizziness, fatigue, daytime 16 sleepiness, leg and back pain, and memory and concentration issues. (AR 545.) Finally, 17 Dr. Doss noted that these limitations would limit his ability to function in his previous 18 position as a software engineer. (AR 545.) 19 The ALJ gave this opinion little weight for three reasons. (AR 35.) First, the ALJ 20 found that Dr. Doss did not provide a function-by-function analysis of Plaintiff’s work 21 abilities. (AR 35.) Second, the ALJ noted that Dr. Doss did not diagnose or treat Plaintiff 22 for DDD, so Dr. Doss’s opinion regarding orthopedic issues was without basis. (AR 35– 23 36.) Third, the ALJ concluded that there were no sleep apnea studies to substantiate Dr. 24 Doss’s opinion regarding Plaintiff’s daytime sleepiness. (AR 36.) Consequently, the ALJ 25 concluded that the medical evidence does not support Dr. Doss’s opinion. (AR 36.) 26 While “[t]he ALJ must consider all medical opinion evidence,” there is a hierarchy [27] 28 2 Even if it had been proper for the ALJ to treat the record as evidence of inconsistent statements by Plaintiff, the single record would not constitute substantial evidence. 1 among the sources of medical opinions. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2 2008). Those who have treated a claimant are treating physicians, those who examined but 3 did not treat the claimant are examining physicians, and those who neither examined nor 4 treated the claimant are nonexamining physicians. Lester v. Chater, 81 F.3d 821, 830 (9th 5 Cir. 1995). “The medical opinion of a claimant’s treating physician is given ‘controlling 6 weight’ so long as ‘it is well-supported by medically acceptable clinical and laboratory 7 diagnostic techniques and is not inconsistent with other substantial evidence in [the record].” 8 Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 1995) (citing 20 C.F.R. § 404.1527 (c)(2)). 9 If a treating physician’s opinion is not given controlling weight, then the ALJ must consider 10 the relevant factors listed in 20 C.F.R. § 404.1527 (d)(2)-(6) and determine the appropriate 11 weight to give the opinion. Orn, 495 F.3d at 632 . 12 If a treating doctor’s opinion is contradicted by another doctor’s opinion, the ALJ 13 may not reject the treating doctor’s opinion without setting forth “specific and legitimate 14 reasons” for doing so that are based on substantial evidence in the record. Bayliss v. 15 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). A treating doctor’s opinion will often be 16 entitled to significant deference, even when contradicted. Orn, 495 F.3d at 632–33. 17 The ALJ’s first reason for rejecting Dr. Doss’s opinion—that Dr. Doss did not 18 provide a function-by-function analysis—is specific and legitimate, but it is not supported 19 by substantial evidence. See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595 , 601 20 (9th Cir. 1999). Dr. Doss’s opinion specifies the functional limitations—lack of 21 concentration, drowsiness, daytime sleepiness, fatigue, chronic pain, and excessive 22 sweatiness—that prevent Plaintiff from fully performing his past work. Dr. Doss connected 23 Plaintiff’s diagnoses to symptoms and connected those symptoms to functional limitations. 24 Therefore, the ALJ erred in rejecting his opinion on this basis. 25 The ALJ also erred by rejecting Dr. Doss’s opinion because Dr. Doss did not 26 personally diagnose or treat Plaintiff for DDD. Plaintiff’s spinal issues were extensively 27 documented through clinical findings and noted by the ALJ in his review of Plaintiff’s 28 medical records. (AR 34.) The ALJ specifically noted severe spinal degeneration that was 1 confirmed via MRI. (AR 34.) Even though Dr. Doss—Plaintiff’s cardiologist—did not 2 specifically diagnose or treat Plaintiff for this impairment, Plaintiff’s DDD is clearly 3 documented in the record. (AR 34.) In fact, the ALJ found that DDD was one of Plaintiff’s 4 severe impairments, which means it is a documented impairment that causes “more than a 5 minimal effect on an [Plaintiff]’s ability to work.” 3 (AR 31). See Webb v. Barnhart, 433 6 F.3d 683, 687 (9th Cir. 2005). 7 Finally, the ALJ erred by rejecting Dr. Doss’s opinion because his opinion regarding 8 daytime sleepiness was not verified by sleep apnea studies. (AR 35). This reason is 9 inconsistent with the ALJ classifying sleep apnea as one of Plaintiff’s severe impairments. 10 (AR 31.) In order to find that an impairment is severe, the ALJ must first determine that it 11 is a medically determinable impairment. To establish a medically determinable 12 impairment, a claimant must provide evidence from a medically acceptable source, such as 13 laboratory results or a licensed physician. 20 C.F.R. § 404.1513 (a); Ukolov v. Barnhart, [14] 420 F.3d 1002, 1005 (9th Cir. 2005). The ALJ’s rejection of Dr. Doss’s opinion because 15 Plaintiff’s sleep apnea was not verified is inconsistent with the ALJ’s finding that 16 Plaintiff’s sleep apnea was a severe impairment, i.e., it causes more than a minimal effect 17 on Plaintiff’s ability to work. (AR 31.) 18 Because the ALJ offered no specific and legitimate reasons supported by substantial 19 evidence, she erred by rejecting Dr. Doss’s opinion. 20 C. The proper remedy is to remand Plaintiff’s case for calculation of 21 benefits. 22 The credit-as-true rule, if applied here, would result in a remand of Plaintiff’s case 23 for a calculation and payment of benefits. Garrison, 759 F.3d at 1020 . It applies if each 24 part of a three-part test is satisfied. Id. First, the record must have been fully developed and [25] 26 3 Even if the ALJ’s rejection of Dr. Doss’s opinion had been backed by substantial evidence as to DDD, the ALJ would still have erred. The ALJ’s rejection of Dr. Doss’s 27 opinion regarding DDD because Dr. Doss did not treat Plaintiff for that impairment does not justify rejecting the entire opinion. Dr. Doss’s opinion also contains limitations from 28 impairments he did treat Plaintiff for, and the ALJ did not offer a specific and legitimate reason for rejecting those limitations. 1 further administrative proceedings would serve no useful purpose. Id. Next, the ALJ must 2 have failed to provide sufficient reasons for rejecting claimant’s testimony or medical 3 opinions. Id. Finally, if the improperly discredited evidence were credited as true, then the 4 ALJ would be required to find the claimant disabled. Id. The credit-as-true rule allows for 5 some flexibility and balances efficiency and fairness in conjunction with the requirement 6 that a claimant actually be disabled in order to receive benefits. Id. at 1021 . Finally, even 7 if all the rule’s requirements are met, the Court may still decline to apply the rule if there 8 is “serious doubt” that the claimant is, in fact, disabled. Id. 9 All of the elements of the credit-as-true rule are met. First, the record is fully 10 developed and remand for additional proceedings would serve no useful purpose. Next, the 11 ALJ provided insufficient reasons for rejecting Plaintiff’s symptom testimony and Dr. 12 Doss’s opinion. Finally, if Plaintiff’s symptom testimony and Dr. Doss’s opinion were 13 credited as true, the ALJ would be required to find Plaintiff disabled. The vocational expert 14 at Plaintiff’s hearing testified that Plaintiff would be unable to work if he was off task for 15 more than ten percent per day. (AR 151.) Plaintiff’s testimony and Dr. Doss’s opinion 16 establish that because of his various limitations, especially those stemming from his 17 cardiac, diabetic, and spinal impairments, he would be off task for more for than ten percent 18 per workday. (AR 143, 545.) 19 Finally, there is not serious doubt as to whether Plaintiff is, in fact, disabled. His 20 spinal issues are extensively documented throughout the clinical records, which the ALJ 21 noted. (AR 34.) Furthermore, although the record does not confirm beyond all doubt that 22 Plaintiff’s numerous impairments prevent him from working, the medical records do not 23 raise serious doubt that he is unable to work. This result squares with the purpose of the 24 credit-as-true rule, which aims to ensure a thorough examination of claimants’ cases in the 25 first instance and prevent an inefficient and “unfair ‘heads we win; tails, let’s play again’ 26 system of disability benefits adjudication.” Benecke v. Barnhart, 379 F.3d 587 595 (9th 27 Cir. 2004). 28 Accordingly, the Court will remand for calculation and entry of benefits. 1 IT IS ORDERED that the final decision of the Commissioner of Social Security is || vacated, and this case is remanded for calculation of benefits. The Clerk is directed to 3 || enter final judgment consistent with this Order and terminate this case. 4 Dated this 11th day of March, 2020. 5 Lo 6 elvan □ 7 United States Magistrate Judge [28] -10-