York Spann v. Commissioner of Social Security Administration

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Lisa Ann York Spann, No. CV-20-00534-PHX-SMB 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, [13] Defendant. [14] 15 At issue is the denial of Plaintiff Lisa Ann York Spann’s Application for Social 16 Security Disability Insurance (“SSDI”) benefits by the Social Security Administration 17 (“SSA”) under the Social Security Act (the “Act”). Plaintiff filed a Complaint, (Doc. 1), 18 and an Opening Brief, (Doc. 18), seeking judicial review of that denial. Defendant SSA 19 filed an Answering Brief, (Doc. 19), to which Plaintiff replied, (Doc. 22). The Court has 20 reviewed the parties’ briefs, the Administrative Record (“AR”), (Docs. 13, 13-1–13-15), 21 and the Administrative Law Judge’s (“ALJ’s”) decision, (AR at 14–31), and will vacate 22 the ALJ’s decision remand for further proceedings for the reasons addressed herein. 23 I. BACKGROUND 24 Plaintiff filed an Application for SSDI benefits in March of 2015, alleging a 25 disability beginning in September of 2014. (AR at 17.) Plaintiff’s claim was initially 26 denied in June of 2016, (Id.), and again on reconsideration in October 2016, (Id.). A 27 hearing was held before ALJ Bucci on July 2, 2018. (Id.) After considering the medical 28 evidence and opinions, the ALJ determined that Plaintiff suffered from severe impairments, 1 including morbid obesity, lumbar degenerative disc disease status post fusion, knee 2 disorder, cervical degenerative disc disease, fibromyalgia, and hand arthritis. (AR at 21.) 3 However, the ALJ concluded that, despite these impairments, Plaintiff had the residual 4 functional capacity (“RFC”) to perform light work as defined in 20 CFR § 404.1567 (b). 5 (AR at 24.) Consequently, Plaintiff’s Application was again denied by the ALJ on October 6 31, 2018. (AR at 31.) Thereafter, on January 18, 2020, the Appeals Council denied 7 Plaintiff’s Request for Review of the ALJ’s decision—making it the final decision of the 8 SSA Commissioner (the “Commissioner”)—and this appeal followed. (Doc. 18.) 9 II. LEGAL STANDARDS 10 An ALJ’s factual findings “shall be conclusive if supported by substantial 11 evidence.” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). The Court may set aside 12 the Commissioner’s disability determination only if it is not supported by substantial 13 evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 14 Substantial evidence is relevant evidence that a reasonable person might accept as adequate 15 to support a conclusion considering the record as a whole. Id. Generally, “[w]here the 16 evidence is susceptible to more than one rational interpretation, one of which supports the 17 ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947 , 18 954 (9th Cir. 2002). In determining whether to reverse an ALJ’s decision, the district court 19 reviews only those issues raised by the party challenging the decision. See Lewis v. Apfel, [20] 236 F.3d 503 , 517 n.13 (9th Cir. 2001). 21 III. DISCUSSION 22 Plaintiff argues that the ALJ committed harmful error by failing to properly weigh 23 Plaintiff’s symptom testimony and by improperly weighing the treating medical source 24 opinion evidence. (Doc. 18 at 6–20.) The Commissioner argues that the ALJ’s opinion is 25 supported by substantial evidence and is free of legal error. (Doc. 19.) The Court has 26 reviewed the medical and administrative records and agrees with the Plaintiff for the 27 following reasons. 28 A. Plaintiff’s Symptom Testimony 1 An ALJ performs a two-step analysis to evaluate a claimant’s testimony regarding 2 pain and symptoms. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). First, the 3 ALJ evaluates whether the claimant has presented objective medical evidence of an 4 impairment that “could reasonably be expected to produce the pain or symptoms alleged.” 5 Lingenfelter v. Astrue, 504 F.3d 1028 , 1035–36 (9th Cir. 2007) (quoting Bunnell v. 6 Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)) (internal quotation marks omitted). Second, 7 absent evidence of malingering, an ALJ may only discount a claimant’s allegations for 8 reasons that are “specific, clear and convincing” and supported by substantial evidence. 9 Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). 10 “[T]he ALJ must specifically identify the testimony she or he finds not to be credible 11 and must explain what evidence undermines the testimony.” Holohan v. Massanari, 246 12 F.3d 1195, 1208 (9th Cir. 2001). General findings are insufficient. Id. “Although the 13 ALJ’s analysis need not be extensive, the ALJ must provide some reasoning in order for 14 [the Court] to meaningfully determine whether the ALJ’s conclusions were supported by 15 substantial evidence.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th 16 Cir. 2014). “[T]he ALJ may consider inconsistencies either in the claimant’s testimony or 17 between the testimony and the claimant’s conduct.” Molina, 674 F.3d at 1112 . For 18 instance, the ALJ may consider “whether the claimant engages in daily activities 19 inconsistent with the alleged symptoms.” Id. (quoting Lingenfelter, 504 F.3d at 1040 ). 20 Plaintiff argues that although the ALJ sets out some rationales for discounting her 21 testimony, “[t]hese rationales are not clear and convincing, specific and legitimate, and are 22 not based on citation to substantial evidence.” (Doc. 18 at 6–7.) Plaintiff alleges that the 23 ALJ decision is patterned upon citations that emphasize normal findings to discount 24 Plaintiff’s testimony but ignore the portions of the very treatment notes cited that are 25 consistent with her testimony. (Id. at 9.) Plaintiff contends that although the ALJ 26 summarizes the medical evidence of record, she does not actually explain how the evidence 27 is inconsistent with Plaintiff’s testimony. (Id. at 10.) Plaintiff also contends that it was 28 error for the ALJ to cite Plaintiff’s three separate attempts to work to suggest that her 1 impairments may not be as limiting as alleged. (Id. at 14.) 2 The Commissioner argues that the medical record failed to corroborate Plaintiff’s 3 allegations of disability during the relevant period, (Doc. 19 at 5), and that “[i]nconsistency 4 with ‘the medical record is a sufficient basis for rejecting the claimant’s subjective 5 testimony.’” (Id. at 5–6 (quoting Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155 , 6 1161 (9th Cir. 2008)). The Commissioner contends that Plaintiff’s ability to work at near 7 substantial gainful activity levels during the relevant period “plainly suggests that her 8 impairments may not have been as limiting as alleged.” (Id. at 8.) The Commissioner also 9 argues that the ALJ properly weighed medical evidence when citing to portions of the 10 record that did not support Plaintiff’s symptom testimony. (Id. at 9.) 11 Here, the ALJ failed to provide clear and convincing, specific, and legitimate 12 reasons for discounting Plaintiff’s testimony. Specifically, the ALJ appears to have cherry13 picked snippets in the record to discredit Plaintiff’s testimony without considering 14 evidence, in the same notes, that supports her testimony. The ALJ also failed to adequately 15 explain how the evidence is inconsistent with Plaintiff’s testimony. The ALJ stated that 16 “[w]hile the claimant’s surgical history gives a plausible explanation for her pain and 17 limitations, the clinical evidence and treatment record suggest her complaints of 18 debilitating pain were not supported fully prior to the date last insured.” (AR at 26.) 19 However, the ALJ produced little evidence to discredit her testimony. For example, in the 20 ALJ’s order she cites to medical records for the proposition that—while the Plaintiff 21 periodically reported pain after surgery—Plaintiff also stated that she was feeling better. 22 (See id.) However, the physical therapy notes cited by the ALJ show that just ten days 23 later Plaintiff reported pain in her back that was six out of ten in intensity after taking pain 24 medication. (AR at 447.) The ALJ’s opinion noted that “claimant was noted as ambulating 25 independently and appeared to have no significant difficulty transitioning from sitting to 26 standing or walking from the waiting room to the evaluation room.” (AR at 26.) However, 27 simply because Plaintiff did not appear to have trouble walking from a waiting room to an 28 evaluation room does not mean that she did not experience chronic pain or that the pain 1 did not affect her daily living and ability to work. See Corless v. Comm’r of Soc. Sec. 2 Admin., 260 F. Supp. 3d 1172, 1179 (D. Ariz. 2017) (“A person may be disabled without 3 constantly appearing unhealthy or in acute distress.”). Finally, the ALJ noted in the opinion 4 that “while some physical examinations revealed tenderness to palpation of the lumbar 5 spine, a more recent examination in November 2017 revealed only tenderness at the site of 6 a rash on her back.” (Id.) However, the same note explained that her back pain was 7 actually getting worse. (AR at 1050.) These are all examples of how the ALJ failed to 8 provide clear and convincing, specific, and legitimate reasons for discounting Plaintiff’s 9 testimony regarding her chronic back pain. 10 Furthermore, the ALJ concluded that Plaintiff’s work attempts suggested that her 11 impairments may not have been as limiting as alleged. (AR at 28.) Plaintiff had three 12 separate work attempts in call centers during the relevant period of alleged disability. (AR 13 at 43.) In one case, she was unable to maintain employment for even a week due to the 14 severity of her symptoms and absenteeism. (Id.) In another case, she quit in lieu of being 15 fired within three months of starting work due to absenteeism. (Id.) Her other work attempt 16 ended with her termination before the end of her probationary period due to absenteeism. 17 (Id.) The Ninth Circuit has determined that the fact that a plaintiff has worked for a brief 18 period of time, alone, is not a clear and convincing reason for rejecting subjective pain and 19 symptom testimony. Lingenfelter v. Astrue, 504 F.3d 1028, 1038 (9th Cir. 2007) (“Indeed, 20 we have suggested that similar evidence that a claimant tried to work and failed actually 21 supported his allegation of disabling pain.” (emphasis original)). Here, too, the fact that 22 Plaintiff tried, but failed, to work actually supports—rather than discredits—her pain and 23 symptom testimony. Thus, it was not a clear and convincing, specific and legitimate reason 24 for rejecting her testimony. 25 Therefore, the Court finds that the ALJ erred by failing to provide clear and 26 convincing, specific, and legitimate reasons for discounting Plaintiff’s subject pain and 27 symptom testimony. 28 B. Evaluation of Medical Testimony 1 1. Nurse Practitioner Young 2 While “[t]he ALJ must consider all medical opinion evidence,” there is a hierarchy 3 among the sources of medical opinions. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th 4 Cir. 2008). Those who have treated a claimant are treating physicians; those who examined 5 but did not treat the claimant are examining physicians; and those who neither examined, 6 nor treated the claimant are non-examining physicians. Lester v. Chater, 81 F.3d 821 , 830 7 (9th Cir. 1995). “As a general rule, more weight should be given to the opinion of a treating 8 source than to the opinion of doctors who did not treat the claimant.” Id. This is so because 9 treating physicians have the advantage of in-person interaction and typically a longer 10 history of treatment than a claimant’s other doctors, and their “subjective 11 judgments . . . . are important, and properly play a part in their medical evaluations.” 12 Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). 13 An ALJ “may only reject a treating or examining physician’s uncontradicted 14 medical opinion based on ‘clear and convincing reasons.’” Carmickle, 533 F.3d at 1164 15 (quoting Lester, 81 F.3d at 830–31). “Where such an opinion is contradicted, however, it 16 may be rejected for specific and legitimate reasons that are supported by substantial 17 evidence in the record.” Id. An ALJ meets this standard by “setting out a detailed and 18 thorough summary of the facts and conflicting medical evidence, stating his interpretation 19 thereof, and making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 20 Plaintiff argues the ALJ erred by improperly weighing the opinion of Nurse 21 Practitioner (“NP”) Jennifer Young. (Doc. 18 at 16.) Plaintiff also argues that the only 22 other rationale that the ALJ gave for giving little weight to NP Young’s statement, that her 23 assertion is an opinion reserved for the Commissioner, was improper because NP Young’s 24 statement included comments on Plaintiff’s medical condition and diagnoses in addition to 25 the opinion. The Commissioner argues that NP Young’s statement was one reserved to the 26 Commissioner because it was an opinion about whether she could work. (Doc. 19 at 11.) 27 Here, the ALJ gave “little weight” to the opinion of NP Young. (AR at 28.) The 28 ALJ wrote: 1 Because this opinion is not from an acceptable medical source, I give it less weight than other qualifying medical source opinions (20 CFR [2] 404.1513(a)(e)). Additionally, to the extent that Ms. Young’s opinion relates 3 to the claimant’s ability to work, As [sic] an opinion on an issue reserved to the Commissioner, this statement is not entitled to controlling weight and is [4] not given special significance pursuant to 20 CFR 404.1527(d). [5] 6 (Id.) The Court has reviewed the letter authored by NP Young that Plaintiff claims the ALJ 7 improperly rejected. That letter contains very little substance. (See AR at 609.) It simply 8 states that Plaintiff’s chronic pain is preventing her from engaging in activities of daily 9 living and from working. (Id.) The letter then lists her medical conditions. (Id.) 10 The ALJ properly rejected NP Young’s letter. Her letter constitutes nothing more 11 than an opinion about whether Plaintiff could work. It contains little substance besides 12 listing her conditions. NP Young gave no reasons for her conclusion. Accordingly, the 13 ALJ properly rejected the letter on the grounds that it was a statement regarding NP 14 Young’s opinion about whether Plaintiff could work. Moreover, even if this was not the 15 case, Social Security regulations in force at the time of the ALJ decision undisputedly set 16 forth a lower standard for rejecting the opinion of “other” medical sources, including nurse 17 practitioners. However, because the Court finds that the letter contains an opinion reserved 18 for the Commissioner, the Court need not determine whether the ALJ improperly rejected 19 her opinion. 20 2. State Agency and Non-Examining Physician 21 Lastly, Plaintiff argues that the ALJ erred by preventing Plaintiff from cross22 examining the state agency examining and non-examining physicians whose opinions the 23 ALJ gave substantial weight. (Doc. 18 at 18.) Plaintiff also argues that the ALJ erred by 24 giving the opinions themselves substantial weight, as the rationales given for doing so were 25 not based upon substantial evidence in the record. (Id.) 26 Plaintiff has failed to fully explain why the ALJ erred when it failed to allow 27 Plaintiff to cross-examine the state agency physicians. The authority cited by Plaintiff does 28 not support her argument that it was an error for the ALJ to fail to give Plaintiff an 1 opportunity to cross-examine these physicians. 2 As to Plaintiff’s argument that the ALJ erred in giving the opinions themselves 3 substantial weight, Plaintiff gives scant reasoning to support this argument. As evidence 4 that the ALJ’s decision to give substantial weight to these decisions was an error, Plaintiff 5 simply points out that examining physician Dr. Cunningham’s decision was based, in part, 6 on the ALJ’s conclusion that Plaintiff’s treatment had been “conservative”, labeling this 7 characterization as an obvious error. (Doc. 18 at 18–19.) The Court finds that the 8 Plaintiff’s scant rationales are not enough to warrant a finding that the ALJ erred by giving 9 substantial weight to the opinions of the state agency physicians. 10 IV. SUPPLEMENTAL BRIEFING 11 Plaintiff filed an additional pleading informing the Court that on April 13, 2021, the 12 agency issued a decision finding Ms. Spann disabled as of November 1, 2018—just one 13 day after the ALJ’s denial opinion which is now subject to this Court’s review. (Doc. 23 14 at 1.) Plaintiff asks the court for a scheduling order if additional briefing is needed. The 15 Court finds that this fact is irrelevant to the current order and that additional briefing is not 16 necessary. 17 V. HARMFUL ERROR 18 The Court “will not reverse the decision of the ALJ for harmless error, which exists 19 when it is clear from the record that the ALJ’s error was inconsequential to the ultimate 20 nondisability determination.” Tommasetti, 533 F.3d at 1038 . 21 Here, the ALJ’s error in improperly rejecting Plaintiff’s symptom testimony was 22 harmful. The rejection of her symptom testimony may have had an effect on the ALJ’s 23 ultimate disability determination. Specifically, the ALJ found that Plaintiff suffered from 24 severe impairments including morbid obesity, lumbar degenerative disc disease status post 25 fusion, knee disorder, cervical degenerative disc disease, fibromyalgia, and hand arthritis. 26 (AR at 21.) The ALJ determined that “[w]hile the claimant’s surgical history gives a 27 plausible explanation for her pain and limitations, the clinical evidence and treatment 28 records suggest her complaints of debilitating pain were not supported fully prior to the 1 date last insured.” (AR at 26.) However, the ALJ failed to give clear and convincing, 2 specific, and legitimate reasons for discounting her testimony. Without such evidence, the 3 ALJ’s decision is not supported by substantial evidence. Therefore, the Court will vacate 4 the ALJ’s October 31, 2018 opinion and remand this case to the ALJ. 5 VI. REMAND 6 If the ALJ’s decision is not supported by substantial evidence or suffers from 7 harmful legal error, the district court has discretion to reverse and remand either for an 8 award of benefits or for further administrative proceedings. Smolen v. Chater, 80 F.3d 9 1273, 1292 (9th Cir. 1996); Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). 10 “Remand for further proceedings is appropriate if enhancement of the record would be 11 useful.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). “Conversely, where the 12 record has been developed fully and further administrative proceedings would serve no 13 useful purpose, the district court should remand for an immediate award of benefits.” Id. 14 (citing Smolen, 80 F.3d at 1292). Here, Plaintiff contends that the ALJ’s errors require this 15 Court to remand her case for computation of benefits. (Doc. 18 at 19.) The Court 16 disagrees. 17 Although the ordinary remedy for reversible error is to remand the case for further 18 administrative proceedings, the credit-as-true rule may apply in rare circumstances where 19 three conditions are present. Garrison, 759 F.3d at 1020 . First, the record must be fully 20 developed, and further administrative proceedings would not be useful to resolve 21 ambiguities or conflicts. Id.; see Treichler, 775 F.3d 1090, 1101 (9th Cir. 2014). Second, 22 the ALJ must have failed to give “legally sufficient reasons for rejecting evidence,” 23 including subjective testimony and medical opinions. Garrison, 759 F.3d at 1020 . Third, 24 if the discounted or rejected evidence was credited as true, the ALJ would be required to 25 find that the claimant is disabled. Id. Even if all three conditions of the credit-as-true rule 26 are met, the Court may remand for further proceedings “when the record as a whole creates [28] 1 || serious doubt as to whether the claimant is, in fact, disabled within the meaning of the 2|| Social Security Act.” Id. at 1021 .! 3 Here, further proceedings are appropriate. First, neither party is arguing that the record is not fully developed. Second, the ALJ, indeed, failed to give legally sufficient || reasons for rejecting Plaintiff's symptom testimony regarding her chronic back pain. 6|| Third, if Plaintiff's discounted testimony were to be credited as true, it is not entirely clear whether the ALJ would be required to find that Plaintiff is disabled. The record contains 8 || some conflicting evidence concerning whether Plaintiff could perform light work. This is a situation where the record as a whole creates doubt as to where Plaintiff is, in fact, || disabled within the meaning of the Social Security Act. Thus, this is not the rare 11 || circumstance where the credit-as-true rule mandates a remand for the computation of benefits. 13 Therefore, after an analysis of the credit-as-true rule, the Court will remand this case tothe ALJ for further proceedings to determine whether Plaintiff is disabled. 15 VII. CONCLUSION 16 Therefore, 17 IT IS ORDERED vacating the October 31, 2018 decision of the ALJ, as upheld by 18 || the Appeals Council. 19 IT IS FURTHER ORDERED remanding this case for further proceedings 20 || consistent with this opinion. 21 IT IS FURTHER ORDERED instructing the Clerk to enter judgment consistent with this order and terminate this case. 23 Dated this 17th day of August, 2022. 24 —_—_> *° Gnvted States District ude. [27] + Although Plaintiff's Opening Brief contains no analysis of the credit-as-true rule, the Court will nonetheless examine the rule. -10-