Gant v. Commissioner of Social Security Administration

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Cade Edward Gant, No. CV-20-08234-PCT-MTL 10 Plaintiff, AMENDED ORDER 11 v. 12 Commissioner of Social Security Administration, [13] Defendant. [14] 15 Plaintiff Cade Gant challenges the Social Security Administration’s (“SSA”) 16 determination that he does not qualify for Supplemental Security Income (“SSI”) under 17 Title XVI of the Social Security Act. (Doc. 14-3 at 25–44.) Gant filed a Complaint with 18 this Court seeking judicial review of that determination. (Doc. 1.) The Court has [19] reviewed the briefs (Docs. 16, 18, 19) and the Administrative Record (Doc. 14, “AR”). [20] The Court now finds that the administrative law judge’s (“ALJ”) decision (AR at 25–44) [21] contained error and remands this matter to the SSA for further proceedings consistent [22] with this order. [23] I. BACKGROUND [24] On January 17, 2017, Gant filed his application for SSI, alleging that he had been [25] disabled since December 19, 2016. (AR at 28.) The Commissioner denied Gant’s [26] application initially and on reconsideration. (Id.) Gant appeared at a hearing on August [27] 15, 2019 before an ALJ. (Id. at 28, 45–64.) At the hearing, Gant amended the alleged [28] onset date to January 17, 2017. (Id. at 28, 49.) On October 11, 2019, the ALJ issued a 1 written decision finding Gant not disabled. (Id. at 25–44.) Gant requested review of his 2 claim and on January 3, 2020, the Appeals Council denied review making the ALJ’s 3 decision final and ripe for this Court’s review. (Id. at 1–6.) Gant now seeks judicial 4 review of the Commissioner’s decision pursuant to 42 U.S.C. § 405 (g). 5 After reviewing and considering the medical opinions and records, the ALJ 6 evaluated Gant’s disability based on the following severe impairments: autism spectrum 7 disorder and borderline intellectual functioning. (Id. at 30.) The ALJ reviewed the entire 8 record, including medical records and opinions and statements from Gant and his mother. 9 (See id. at 30–44.) She extensively reviewed the record when making the mental health 10 determination by considering the paragraph B criteria, paragraph C criteria, and the other 11 criteria of listings 12.04, 12.05, and 12.06 before determining Gant “does not have an 12 impairment or combination of impairments that meets or medically equals the severity of 13 one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 14 416.920(d), 416.925 and 416.926).” (Id. at 31; see id. at 31–33.) 15 After that, the ALJ calculated Gant’s residual functional capacity (“RFC”). 16 (Id. at 33–38.) She determined that Gant “has the [RFC] to perform a full range of work 17 at all exertional levels,” but with some “nonexertional limitations: [Gant] is able to 18 perform simple routine work involving simple work related decisions and simple 19 instructions involving few changes in the work setting not involving public contact.” 20 (Id. at 33; see id. at 33–38.) This RFC determination involved reviewing and analyzing 21 different, and sometimes conflicting, pieces of medical and opinion evidence. (Id. at 33– 22 38.) Although Gant had no past relevant work, given his RFC and the testimony of a 23 Vocational Expert (“VE”), the ALJ determined that a significant number of jobs exist “in 24 the national economy that [Gant] can perform.” (Id. at 38.) And so, she found that Gant 25 was “not disabled” for the relevant period. (Id. at 39.) 26 II. LEGAL STANDARD 27 In determining whether to reverse an ALJ’s decision, the district court reviews 28 only those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 1 F.3d 503 , 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s 2 disability determination only if it is not supported by substantial evidence or is based on 3 legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is 4 more than a scintilla, but less than a preponderance; it is relevant evidence that a 5 reasonable person might accept as adequate to support a conclusion considering the 6 record as a whole. Id. To determine whether substantial evidence supports a decision, the 7 Court must consider the record as a whole and may not affirm simply by isolating a 8 “specific quantum of supporting evidence.” Id. Generally, “[w]here the evidence is 9 susceptible to more than one rational interpretation, one of which supports the ALJ’s 10 decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947 , 954 11 (9th Cir. 2002) (citation omitted). Finally, the Court may not reverse an ALJ’s decision 12 on account of an error that is harmless. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 13 1050 , 1055–56 (9th Cir. 2006). “The burden of showing that an error is harmful normally 14 falls upon the party attacking the agency’s determination.” Molina v. Astrue, 674 F.3d 15 1104 , 1119 n.11 (9th Cir. 2012) (quoting Shinseki v. Sanders, 556 U.S. 396, 409 (2009)). 16 “An error is harmless if it is inconsequential to the ultimate nondisability determination, 17 or if the agency’s path may reasonably be discerned, even if the agency explains its 18 decision with less than ideal clarity.” Treichler v. Comm’r of Soc. Sec., 775 F.3d 1090 , 19 1099 (9th Cir. 2014) (citations and internal quotation marks omitted). 20 To determine whether a claimant is disabled, the ALJ follows a five-step process. [21] 20 C.F.R. § 404.1520 (a). The claimant bears the burden of proof on the first four steps, 22 but the burden shifts to the Commissioner at step five. Tackett v. Apfel, 180 F.3d 1094 , 23 1098 (9th Cir. 1999). At the first step, the ALJ determines whether the claimant is 24 presently engaging in substantial gainful activity. 20 C.F.R. § 404.1520 (a)(4)(i). If so, the 25 claimant is not disabled, and the inquiry ends. Id. At step two, the ALJ determines 26 whether the claimant has a “severe” medically determinable physical or mental 27 impairment. Id. § 404.1520(a)(4)(ii). If not, the claimant is not disabled, and the inquiry 28 ends. Id. At step three, the ALJ considers whether the claimant’s impairment or 1 combination of impairments meets or medically equals an impairment listed in Appendix 2 1 to Subpart P of 20 C.F.R. Part 404. Id. § 404.1520(a)(4)(iii). If so, the claimant is 3 automatically found to be disabled. Id. If not, the ALJ proceeds to step four. Id. At step 4 four, the ALJ assesses the claimant’s RFC and determines whether the claimant is still 5 capable of performing past relevant work. Id. § 404.1520(a)(4)(iv). If so, the claimant is 6 not disabled, and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, 7 where the ALJ determines whether the claimant can perform any other work in the 8 national economy based on the claimant’s RFC, age, education, and work experience. Id. 9 § 404.1520(a)(4)(v). If so, the claimant is not disabled; if not, the claimant is disabled. Id. 10 III. DISCUSSION 11 Gant raises three arguments on appeal. First, the ALJ failed to properly analyze 12 Dr. Down’s and Dr. Higgins’ medical opinions which caused her to err when determining 13 his RFC. (Doc. 16 at 14–21; Doc. 19 at 1–9.) Second, the ALJ improperly rejected Gant’s 14 mother’s lay witness testimony. (Doc. 16 at 21–22; Doc. 19 at 9–11.) Third, the VE 15 testimony did not support the ALJ’s step five finding. (Doc. 16 at 23.) 16 A. Medical Opinion Evidence and RFC 17 Although an ALJ must consider all the medical evidence in the record, medical 18 opinion sources are separated into three types: (1) treating physicians (who treat a 19 claimant), (2) examining physicians (who examine but do not treat a claimant), and 20 (3) non-examining physicians (who do not examine or treat a claimant). Lester, 81 21 F.3d at 830 (superseded by statute on other grounds). For disability benefit applications 22 filed prior to March 27, 2017, treating medical sources are generally given more weight 23 than non-examining sources due to a treating physician’s heightened familiarity with a 24 claimant’s condition. 20 C.F.R. § 404.1527 (a)(2). If the ALJ declines to give controlling 25 weight to a treating source’s opinion, the ALJ must consider several factors—including 26 the examining relationship, treatment relationship, the length and nature of treatment, 27 supportability, consistency, and specialization, among other factors—in deciding how to 28 weigh the source’s opinion. 20 C.F.R. § 404.1527 (c). The ALJ must thereafter provide an 1 explanation for the weight given to each medical source. 20 C.F.R. § 404.1527 (f)(2). If 2 certain evidence contradicts a treating physician’s opinion, the ALJ must provide 3 “specific and legitimate reasons supported by substantial evidence” for rejecting that 4 physician’s opinion. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Lester, 5 81 F.3d at 830) (internal citation marks omitted). 6 Despite the deference generally afforded to treating physicians, the ALJ is not 7 required to rely on them. If a treating physician’s opinion is not “well-supported by 8 medically acceptable clinical and laboratory diagnostic techniques” or is “inconsistent 9 with the other substantial evidence in [the] case record,” the ALJ need not give it 10 controlling weight. Id. § 404.1527(c)(2); see also Tonapetyan v. Halter, 242 F.3d 1144 , 11 1149 (9th Cir. 2001) (an ALJ may discredit treating physicians’ opinions that are 12 conclusory, brief, and unsupported by the record as a whole or by objective medical 13 findings). If a treating physician’s opinion is not given controlling weight, the ALJ must 14 consider the factors listed in 20 C.F.R. § 404.1527 (c) in assigning its relative weight. 15 When rejecting a treating physician’s testimony, “the ALJ must do more than offer his 16 conclusions. He must set forth his own interpretations and explain why they, rather than 17 the doctors’, are correct.” Orn, 495 F.3d at 631 (citing Embrey v. Bowen, 849 F.2d 418 , 18 421–22 (9th Cir. 1988)). 19 In laymen’s terms, RFC is what the claimant can do in a work environment in 20 spite of their disabilities or limitations. See 20 C.F.R. §§ 404.1545 (a), 416.945(a). The 21 Social Security regulations define RFC as the “maximum degree to which the individual 22 retains the capacity for sustained performance of the physical-mental requirements of 23 jobs.” 20 C.F.R. Part 404, Subpt. P, App. 2, § 200.00(c). “The ALJ assesses a claimant’s 24 RFC based on all the relevant evidence in [the] case record,” to determine the claimant’s 25 capacity for work. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (quotation 26 marks and citation omitted); see 20 C.F.R. §§ 404.1545 (a), 416.945(a). The ALJ should 27 consider a claimant’s ability to meet physical and mental demands, sensory requirements, 28 and other functions. See 20 C.F.R. §§ 404.1545 (b)–(d), 416.945(b)–(d). “[I]n assessing 1 RFC, the adjudicator must consider limitations and restrictions imposed by all of an 2 individual’s impairments, even those that are not ‘severe.’ The RFC therefore should be 3 exactly the same regardless of whether certain impairments are considered ‘severe’ or 4 not.” Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (cleaned up). Additionally, [5] The RFC assessment must contain a thorough discussion and 6 analysis of the objective medical and other evidence, including the individual’s complaints of pain and other [7] symptoms and the adjudicator’s personal observations, if 8 appropriate. In other words, the ALJ must take the claimant’s subjective experiences of pain into account when determining [9] the RFC. [10] 11 Laborin, 867 F.3d at 1153 (cleaned up). 12 “At step four, a claimant has the burden to prove that he cannot perform his past 13 relevant work ‘either as actually performed or as generally performed in the national 14 economy.’” Stacy v. Colvin, 825 F.3d 563, 569 (9th Cir. 2016) (quoting Lewis v. 15 Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002)). “An individual shall be determined to be 16 under a disability only if his physical or mental impairment or impairments are of such 17 severity that he is not only unable to do his previous work but cannot, considering his 18 age, education, and work experience, engage in any other kind of substantial gainful work 19 which exists in the national economy . . . .” 42 U.S.C. § 423 (d)(2)(A). An ALJ is free to 20 consider any activities that “may be seen as inconsistent with the presence of a condition 21 which would preclude all work activity.” Curry v. Sullivan, 925 F.2d 1127 , 1130 (9th Cir. 22 1990). It is well established that an ALJ is also empowered to note a claimant’s daily 23 activities that “‘involv[e] the performance of physical functions that are transferable to a 24 work setting.’” Orn, 495 F.3d at 639 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 25 1989)). 26 The parties disagree over the meaning of the conclusion of Dr. Down’s medical 27 opinion. In this portion of her opinion, she explained Gant’s limitations in narrative form: [28] 1 UNDERSTANDING AND MEMORY Clmt able to understand and remember simple instructions, [2] simple work procedures, and simple work locations. Clmt 3 will do better in jobs in which training is provided through demonstrations and supervised practice. [4] 5 SUSTAINED CONCENTRATION AND PERSISTENCE Clmt able to carry out simple instructions, perform within a [6] schedule, make simple work related decisions. Clmt will do 7 better in jobs in which a coworker such as a leader or supervisor is present to provide occasional redirection. [8] 9 SOCIAL INTERACTION Clmt able to ask questions and request assistance. Clmt will 10 do better in jobs with limited social interaction[ ]superficial 11 and occasional. Clmt able to work alone. 12 ADAPTATION 13 Clmt able to recognize/avoid hazards. Clmt will do better in jobs with static tasks and where changes can be explained. 14 Clmt will do better in jobs without strict time deadlines and [15] Based on this assessment, clmt able to meet the basic mental 16 demands of competitive, remunerative, unskilled work with job suggestions (above) on a sustained basis. [18] (AR at 75 (emphasis added).) [19] Gant argues that the ALJ erred by giving Dr. Down’s opinion great weight and not [20] adopting these job restrictions in the RFC without explaining why she failed to include [21] them. (See Doc. 16 at 14–18.) Specifically, Gant asserts that the ALJ erred when she [22] failed to adopt Dr. Down’s conclusion that he required “occasional redirection by a leader [23] or supervisor; a limitation to superficial and occasional social interaction; jobs with static [24] tasks where changes could be explained; and jobs without strict timelines” in order to [25] work. (Id. at 16; see id. at 14–16.) Gant argues that this is because the parameters listed [26] by Dr. Down’s opinion are necessary restrictions on the work he can do, not suggestions [27] to optimize Gant’s working ability. (See id. at 16–17.) He posits that, “in Dr. Downs’ [28] opinion, Gant is able to meet the basic mental demands of competitive, remunerative, 1 unskilled work only if the suggestions she made are incorporated.” (Id. at 17.) Gant 2 asserts that if the ALJ did not adopt these restrictions from Dr. Down’s opinion, the ALJ 3 must at least explain why she made that decision. (Id.) Finally, Gant argues that Dr. 4 Down’s opinion, as he interprets it, is well supported by the record. (See id. at 17–18.) 5 The Commissioner argues that the ALJ properly afforded Dr. Down’s opinion 6 great weight and properly incorporated that opinion in the RFC. (See Doc. 18 at 8–12.) 7 The Commissioner asserts that the ALJ’s RFC determination was well supported by the 8 record. (Id. at 8–9.) The Commissioner also argues that Dr. Down’s “comments that 9 [Gant] would ‘do better’ under certain enumerated conditions . . . were recommendations 10 about the best work environment for [Gant], not functional limitations that the ALJ was 11 required to consider in assessing [Gant’s] RFC.” (Id. at 9–10.) Because Dr. Down’s 12 opinion “did not indicate that such conditions were necessary for [Gant] to work,” the 13 Commissioner concludes that the ALJ did not err when she failed to incorporate Dr. 14 Down’s recommendations about a work environment where Gant would “do better” in 15 the RFC. (Id. at 11; see id. at 10–12.) Specifically, the Commissioner argues, those 16 conditions were not necessary because there were mere suggestions, which “are not 17 opinions on specific functional limitations that the ALJ was required to evaluate.” 18 (Id. at 12.) The Commissioner also argues that this interpretation of Dr. Down’s opinion 19 is supported by a separate state agency psychologist’s opinion, Dr. Foster-Valdez’s. (Id.) 20 Thus, the RFC was consistent with Dr. Down’s opinion. (See id. at 10–12.) 21 Gant counters that the ALJ failed to address Dr. Down’s comments, which are 22 more than mere suggestions, and that this error is grounds for remand. (See Doc. 19 at 4– 23 9.) Specifically, Gant argues that (1) Dr. Down’s opinion is that Gant is only able to work 24 in an environment where those suggestions are implemented; (2) “Dr. Downs’ status as a 25 State Agency medical consultant shows her statements are mandates and not 26 recommendations;” and (3) Dr. Down’s use of the word “with” in her opinion coupled 27 with the fact that Dr. Foster-Valdez fully adopted Dr. Down’s opinion except for the 28 “with” language support his argument. (Id. at 6; see id. at 5–8.) 1 The Court agrees with Gant. The ALJ assigns great weight to Dr. Down’s opinion, 2 but fails to explain why it does not incorporate the restrictions that Dr. Down articulates. 3 (See AR at 33, 38, 75.) Dr. Down’s opinion unequivocally states that “[b]ased on [her] 4 assessment, [Gant is] able to meet the basic mental demands of competitive, 5 remunerative, unskilled work with job suggestions (above) on a sustained basis.” 6 (AR at 75 (emphasis added).) There is one clear reading of Dr. Down’s conclusion: if the 7 job suggestions she lists are provided, Gant is able to meet the basic demands of 8 competitive, remunerative, unskilled work on a sustained basis. An ALJ must support her 9 decision with substantial evidence. Here, the ALJ provides no explanation for why she 10 ignored Dr. Down’s penultimate phrase, “with job suggestions (above).” It is clear error 11 for the ALJ to afford Dr. Down’s opinion great weight, to not include those restrictions in 12 the RFC, and to not explain why those restrictions were excluded. 13 This error alone is grounds for remand. The ALJ would need to perform additional 14 administrative proceedings to determine the proper weight to assign Dr. Down’s medical 15 opinion. Such proceedings would substantially change the record. That would, in turn, 16 significantly affect her RFC determination, her analysis of Theresa Gant’s testimony, and 17 the VE testimony. For this reason, the Court forgoes ruling on the parties’ arguments 18 regarding these additional issues because, after the record is properly developed, such 19 conclusions would be irrelevant. 20 IV. CREDIT-AS-TRUE RULE 21 After determining that the ALJ made an error sufficiently serious to warrant a 22 remand, the Court decides whether it will apply the credit-as-true rule. The credit-as-true 23 rule allows a court to remand a Social Security case for an award of benefits rather than 24 remand the case for additional evidence. Treichler, 775 F.3d at 1101–02. Whether the 25 credit-as-true rule is mandatory or discretionary in the Ninth Circuit is unclear because 26 Ninth Circuit jurisprudence is split on the issue. Compare Vasquez, 572 F.3d at 593–94, 27 and Garrison v. Colvin, 759 F.3d 995 , 1019–23 (9th Cir. 2014), with Treichler, 775 F.3d 28 at 1099–02. The rule can only be applied when three elements are met: “(1) the record || has been fully developed and further administrative proceedings would serve no useful 2|| purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting || evidence, whether claimant testimony or medical opinion; and (3) if the improperly 4|| discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.” Garrison, 759 F.3d at 1020 . Even then, the rule is rarely 6|| applied because the decision to remand or apply the rule is discretionary and courts “frequently exercise[] [their] discretion to remand for further proceedings, rather than || benefits.” Treichler, 775 F.3d at 1102 . 9 The credit-as-true rule does not apply here. Because Dr. Down’s medical opinion || is only a fraction of the record the ALJ must consider, she would not be required to find 11 || Gant disabled on remand if Dr. Down’s medical opinion was credited as true. The record || in this case is not perfectly consistent. The opinions of Dr. Higgins, Chrisman, and 13 || others—along with other pieces of evidence in the record—would need to be weighed against Dr. Down’s opinion. Accepting Dr. Down’s opinion as true could affect the ALJ’s RFC determination, recolor her interpretation of Theresa Gant’s lay witness 16 || testimony, and necessitate new VE testimony. But it does not require the ALJ to find || Gant disabled. Further administrative proceedings will help the ALJ determine the 18 || benefits Gant deserves. Thus, the Court remands this case for further administrative 19 || proceedings to develop the record as necessary. V. CONCLUSION 21 Accordingly, 22 IT IS ORDERED remanding this matter to the Social Security Administration 23 || for further proceedings consistent with this order. 24 IT IS FURTHER ORDERED directing the Clerk of the Court to enter final 25 || judgment consistent with this Order and close this case. 26 Dated this 16th day of March, 2022. [27] Michal T. Shure Michael T, Liburdi - 19 United States District Judge