Harris v. Commissioner of Social Security Administration

1 WO — 2 — — 3 — — 4 — — 5 — 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA — 8 — 9 Anne Michelle Harris, No. CV-23-00052-PHX-DLR 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, — 13 — Defendant. — 14 — — 15 — 16 On February 16, 2024, Magistrate Judge Michael T. Morrissey issued a Report and 17 Recommendation (R&R) recommending that the Court reverse the decision of the 18 Commissioner of Social Security and remand the case for further administrative 19 proceedings. (Doc. 29.) Plaintiff filed Objections to the R&R (Doc. 30), and Defendant 20 filed a response (Doc. 31). After reviewing the R&R and considering the arguments raised 21 in Plaintiff’s Objections, the Court will overrule the Objections and adopt Judge 22 Morrissey’s Recommendation. 23 I. STANDARD OF REVIEW 24 The Court “may accept, reject, or modify, in whole or in part, the findings or 25 recommendations made by the magistrate judge.” 28 U.S.C. § 636 (b)(1). “[T]he district 26 judge must review the magistrate judge’s findings and recommendations de novo if 27 objection is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114 , 1121 28 (9th Cir. 2003); see also Fed. R. Civ. P. 72(b). The Court is not required to conduct “any 1 review at all . . . of any issue that is not the subject of an objection.” Thomas v. Arn, 474 2 U.S. 140, 149 (1985). 3 II. DISCUSSION 4 Plaintiff makes two objections: First, Plaintiff contends that Judge Morrissey erred 5 in recommending the Court affirm the ALJ’s decision to discredit Plaintiff’s symptom 6 testimony. Second, Plaintiff argues that the matter should not be remanded for further 7 proceedings, but instead for an immediate award of benefits. (Doc. 30.) The Court 8 addresses each objection in turn. 9 A. Plaintiff’s Symptom Testimony 10 Plaintiff objects to Judge Morrissey’s finding that the ALJ provided specific, clear, 11 and convincing reasons supported by substantial evidence to discredit Plaintiff’s symptom 12 testimony. The R&R explains that that ALJ rejected Plaintiff’s symptom testimony, in part, 13 because of Plaintiff’s reluctance to take narcotic pain medication despite claiming 14 debilitating headache pain. Judge Morrissey found this to be a specific, cogent reason 15 supported by substantial evidence to reject Plaintiff’s symptom testimony. (Doc. 29 at 11– 16 12.) 17 Plaintiff contends that Judge Morrissey “fails to make the distinction” between a 18 reluctance to take any medication and a reluctance to take narcotic pain medication. 19 Plaintiff asserts that she complied with all other treatment recommendations and that 20 without the ALJ knowing the reason behind Plaintiff’s non-compliance, failing to take a 21 narcotic medicine does not justify discrediting her symptom testimony. (Doc. 30 at 4–5). 22 The Court finds no error in Judge Morrissey’s analysis and recommendation. Judge 23 Morrissey correctly noted that the ALJ was not required to inquire why Plaintiff was non24 compliant with her medication, but rather it was the Plaintiff’s burden to provide an 25 explanation for such non-compliance, which Plaintiff failed to do. See Fair v. Bowen, 885 26 F.2d 597, 603 (9th Cir. 1989) (“Another such form of evidence is an unexplained, or 27 inadequately explained, failure to seek treatment or follow a prescribed course of treatment. 28 While there are any number of good reasons for not doing so, a claimant’s failure to assert 1 one, or a finding by the ALJ that the proffered reason is not believable, can cast doubt on 2 the sincerity of the claimant’s pain testimony.”). 3 Plaintiff also objects to Judge Morrissey’s finding that the ALJ reasonably 4 concluded that Plaintiff’s daily activities undermined her symptom testimony. (Doc. 30 at 5 6–7.) Plaintiff summarizes the daily activities that the ALJ cited to and then asserts, without 6 supporting authority or explanation, that such activities fail to undermine Plaintiff’s 7 symptom testimony. The Court disagrees. It was rational for the ALJ to conclude that 8 Plaintiff’s ability to engage in a wide-range of tasks—including household chores—and 9 leisure activities—such as doing puzzles, crocheting, and going on vacation—undermined 10 Plaintiff’s claim that she suffered from totally debilitating headaches and migraines. See 11 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) (holding that normal 12 activities of daily living, such as cooking and cleaning, may suggest that claimant “is 13 capable of performing the basic demands of competitive, remunerative, unskilled work on 14 a sustained basis”). This is a rational conclusion even if Plaintiff could not engage in such 15 activities for a substantial part of the day. See Rollins v. Massanari, 261 F.3d 853, 857 (9th 16 Cir. 2001) (holding that although plaintiff “was somewhat equivocal about how regularly 17 she was able to keep up with all of these activities,” the court would not second-guess 18 ALJ’s reasonable interpretation, supported by substantial evidence, that her daily activities 19 undermined symptom testimony).1 20 B. Remand for further proceedings 21 Plaintiff agrees with Judge Morrissey that the ALJ committed materially harmful 22 error in rejecting Dr. Jamison’s medical opinion, but objects to Judge Morrissey’s — 23 — — 24 — 1 Plaintiff asserts that the “R&R did not acknowledge the cases discussed in the 25 opening brief from this Court finding travel was not automatically inconsistent with a claimant’s symptom testimony.” (Doc. 30 at 7.) Judge Morrissey was under no obligation 26 to address each and every case Plaintiff cited in her opening brief. Moreover, the Court agrees with the Judge Morrissey’s finding that a claimant’s ability to travel and go on 27 vacation is a clear and convincing reason to discredit the claimant’s testimony to the extent such activities contradict claims of debilitating pain. See e.g., Wennet v. Saul, 777 Fed. 28 App’x 875, 877 (9th Cir. 2019) (holding that claimant’s vacations and frequent travel was a specific, clear, and convincing reason to discredit the claimant’s testimony). 1 recommendation that the case be remanded for further proceedings, rather than for payment 2 of benefits. (Doc. 30 at 8.) 3 The Ninth Circuit makes clear that an “automatic award of benefits in a disability 4 case is a rare and prophylactic exception to the well-established ordinary remand rule.” 5 Leon v. Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2017); see also Trechler v. Comm’r of 6 Soc. Sec. Admin., 775 F.3d 1090 , 1101 n.5 (9th Cir. 2014) (“[O]ur jurisprudence 7 . . . requires remand for further proceedings in all but the rarest cases.”). To remand for an 8 award of disability benefits, the Court must find: (1) the ALJ has failed to provide legally 9 sufficient reasons for rejecting evidence; (2) the record has been fully developed and 10 further administrative proceedings would not be useful; and (3) if the improperly 11 discredited evidence were credited as true, the ALJ would be required to find the claimant 12 disabled. See Washington v. Kijakazi, 72 F.4th 1029, 1041 (9th Cir. 2023). 13 The Court agrees with Judge Morrissey that it is not clear from the record that the 14 ALJ would be required to find Plaintiff disabled. As discussed above, the ALJ properly 15 discredited Plaintiff’s symptom testimony based on her non-compliance in taking 16 medication and her daily activities. Thus, even if the ALJ credited Dr. Jamison’s medical 17 opinion as true, it is not clear from the record that the ALJ would be required to find 18 Plaintiff disabled. 19 Plaintiff contends that Judge Morrissey failed to adequately explain the usefulness 20 of additional proceedings. (Doc. 30 at 9.) The Court disagrees, but even if Plaintiff’s 21 assertion is correct—that Judge Morrissey did not explain the usefulness of additional 22 proceedings—crafting a remedy is within the Court’s discretion. “[E]ven if all three 23 requirements [for remand with benefits] are met, we retain flexibility in determining the 24 appropriate remedy. We may remand on an open record for further proceedings when the 25 record as a whole creates serious doubt as to whether the claimant is, in fact, disabled 26 within the meaning of the Social Security Act.” Brown-Hunter v. Colvin, 806 F.3d 487 , 27 495 (9th Cir. 2015) (cleaned up). The Court agrees with Judge Morrissey that a remand for 28 further proceedings is appropriate here. Accordingly, 1 IT IS ORDERED that Plaintiffs Objections to the R&R (Doc. 30) are OVERRULED. 3 IT IS FURTHER ORDERED that Magistrate Judge Michael T. Morrissey’s 4|| Report and Recommendation (Doc. 29) is ACCEPTED and ADOPTED. 5 IT IS FURTHER ORDERED that the decision of the Commissioner is 6|| REVERSED, and the case is REMANDED for further proceedings consistent with this 7\| Order and the R&R. The Clerk of the Court shall enter judgment accordingly and terminate 8 || this case. 9 Dated this 29th day of March, 2024. — 10 — — 11 — 12 , {Z, 13 _- Ae 14 Used States Dictrid Judge — 15 — — 16 — — 17 — — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 — _5-