Opinion
CV-23-8053-JJT
03-15-2024
Cheryl Brown, Plaintiff, v. Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable Eileen S. Willett, United States Magistrate Judge
TO THE HONORABLE JOHN J. TUCHI, UNITED STATES DISTRICT JUDGE:
Pending before the Court is Cheryl Brown's (“Plaintiff” or “Ms. Brown”) appeal of the Social Security Administration's (“Social Security”) denial of her deceased husband's application for disability insurance benefits. The Court has jurisdiction to decide this appeal pursuant to 42 U.S.C. § 405(g). Under 42 U.S.C. § 405(g), the Court has the power to enter, based upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the case for a rehearing.
After reviewing the Administrative Record (“A.R.”) and the parties' briefing (Docs. 17, 19, 20), the Court finds that the Administrative Law Judge's (“ALJ”) decision contains harmful legal error. For the reasons explained in Section II below, it is recommended that the decision be reversed and the case remanded to the Commissioner of Social Security for further proceedings.
I. LEGAL STANDARDS
A. Disability Analysis: Five-Step Evaluation
The Social Security Act (the “Act”) provides for disability insurance benefits to those who have contributed to the Social Security program and who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1). To be eligible for benefits based on an alleged disability, the claimant must show that he or she suffers from a medically determinable physical or mental impairment that prohibits him or her from engaging in any substantial gainful activity. 42 U.S.C. § 423(d)(1)(A). The claimant must also show that the impairment is expected to cause death or last for a continuous period of at least 12 months. Id.
To decide if a claimant is entitled to Social Security benefits, an ALJ conducts an analysis consisting of five questions, which are considered in sequential steps. 20 C.F.R. § 404.1520(a). The claimant has the burden of proof regarding the first four steps:
Parra v. Astrue, 481 F.3d 742,746 (9th Cir. 2007).
Step One : Is the claimant engaged in “substantial gainful activity”? If so, the analysis ends and disability benefits are denied. Otherwise, the ALJ proceeds to Step Two.
Step Two: Does the claimant have a medically severe impairment or combination of impairments? A severe impairment is one which significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520(c). If the claimant does not have a severe impairment or combination of impairments, disability benefits are denied at this step. Otherwise, the ALJ proceeds to Step Three.
Step Three: Is the impairment equivalent to one of a number of listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity? 20 C.F.R.
§ 404.1520(d). If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one that is presumed to be disabling, the ALJ proceeds to the fourth step of the analysis.
Step Four: Does the impairment prevent the claimant from performing work which the claimant performed in the past? If not, the claimant is “not disabled” and disability benefits are denied without continuing the analysis. 20 C.F.R. § 404.1520(f). Otherwise, the ALJ proceeds to the last step.
If the analysis proceeds to the final question, the burden of proof shifts to the Commissioner:
Parra, 481 F.3d at 746.
Step Five: Can the claimant perform other work in the national economy in light of his or her age, education, and work experience? The claimant is entitled to disability benefits only if he or she is unable to perform other work. 20 C.F.R. § 404.1520(g). Social Security is responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy that the claimant can do, given the claimant's residual functional capacity, age, education, and work experience. Id.
B. Standard of Review Applicable to ALJ's Determination
The Court must affirm an ALJ's decision if it is supported by substantial evidence and is based on correct legal standards. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990). Although “substantial evidence” is less than a preponderance, it is more than a “mere scintilla.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison v. NLRB, 305 U.S. 197, 229 (1938)). It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.
In determining whether substantial evidence supports the ALJ's decision, the Court considers the record as a whole, weighing both the evidence that supports and detracts from the ALJ's conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). If there is sufficient evidence to support the ALJ's determination, the Court cannot substitute its own determination. See Morgan v. Comm'r of the Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999) (“Where the evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.”); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). This is because the ALJ, not the Court, is responsible for resolving conflicts and ambiguities in the evidence and determining credibility. Magallanes, 881 F.2d at 750; see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
The Court also considers the harmless error doctrine when reviewing an ALJ's decision. This doctrine provides that an ALJ's decision need not be remanded or reversed if it is clear from the record that the error is “inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citations omitted); Molina, 674 F.3d at 1115 (an error is harmless so long as there remains substantial evidence supporting the ALJ's decision and the error “does not negate the validity of the ALJ's ultimate conclusion”) (citations omitted).
II. DISCUSSION
A. Procedural Background
In 2018, Plaintiff's husband, Corey Brown (“Mr. Brown), applied for disability insurance benefits. (A.R. 253-259). Mr. Brown had worked as a customer service manager. (A.R. 29). Mr. Brown's benefits application alleged that on April 19, 2018, Mr. Brown became limited in his ability to work due to neuropathy, diabetes, spinal stenosis, ruptured discs in his upper back and neck, ruptured vertebrae in his neck, chronic neck and back pain, depression, and seizures. (A.R. 82). Social Security denied the application on September 27, 2018. (A.R. 123-126). On February 11, 2019, upon Mr. Brown's request for reconsideration, Social Security affirmed the denial of benefits. (A.R. 128-132). On February 28, 2019, Mr. Brown requested a hearing before an ALJ. (A.R. 134-135). On October 8, 2020, Mr. Brown died of a pulmonary embolism. (A.R. 7219). Mr. Brown's widow, Plaintiff, became the substitute party. (A.R. 186).
An ALJ conducted a hearing on November 30, 2021. (A.R. 40-80). In a January 3, 2022 decision, the ALJ found that Mr. Brown was not disabled within the meaning of the Social Security Act. (A.R. 15-39). The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Social Security Commissioner. (A.R. 1-6). On March 17, 2023, Plaintiff filed a Complaint (Doc. 1) requesting judicial review and reversal of the ALJ's decision.
B. The ALJ's Application of the Five-Step Disability Analysis
1. Step One: Engagement in “Substantial Gainful Activity”
The ALJ determined that Mr. Brown had not engaged in substantial gainful activity from January 3, 2016 (the alleged onset date) through October 7, 2020, (the date of his death). (A.R. 17). Neither party disputes this determination.
2. Step Two: Presence of Medically Severe Impairment/Combination of Impairments
The ALJ found that Mr. Brown has the following severe impairments: (i) thoracic and cervical degenerative disc disease; (ii) epilepsy; (iii) migraine; (iv) brachial plexitis; (v) bilateral carpal tunnel syndrome, status-post bilateral release; and (vi) obesity. (A.R. 18). This determination is undisputed.
3. Step Three: Presence of Listed Impairment(s)
The ALJ determined that Mr. Brown does not have an impairment or combination of impairments that meets or medically equals an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the Social Security regulations. (A.R. 21). Neither party disputes the ALJ's determination at this step.
4. Steps Four and Five: Capacity to Perform Work
The ALJ found that Mr. Brown had retained the residual functional capacity (“RFC”) to perform
light work as defined in 20 CFR 404.1567(b). However, the claimant could only occasionally climb ramps and stairs, never
climb ladders, ropes or scaffolds, occasionally balance, stoop, kneel, crouch, and crawl, occasionally reach overhead and frequently reach in all other directions, frequently handle and finger bilaterally, and occasionally feel bilaterally. The claimant must have avoided concentrated exposure to extreme cold, vibration, and hazards such as dangerous moving machinery an unprotected heights. The claimant could have had only occasional exposure to loud noise.(A.R. 23). Based on the assessed RFC and testimony of the Vocational Expert (“VE”) at the administrative hearing, the ALJ concluded that Mr. Brown was not capable of performing his past relevant work. (A.R. 29). At the hearing, the VE testified that based on Mr. Brown's RFC, Mr. Brown would be able to perform the requirements of representative occupations such as mail clerk, marker, and routing clerk. (A.R. 30). The ALJ found that the VE's testimony was consistent with the information in the Dictionary of Occupational Titles and that the jobs identified by the VE existed in significant numbers in the national economy. After considering the VE's testimony, Mr. Brown's age, education, work experience, and RFC, the ALJ determined that Mr. Brown was capable of making a successful adjustment to other work and was therefore not disabled. (Id.). Plaintiff asserts that in reaching this conclusion, the ALJ did not provide sufficient reasons for discounting the opinions of Mr. Brown's treating physician and the statements by Mr. and Ms. Brown concerning Mr. Brown's symptoms.
C. The ALJ's Evaluation of the Opinions of Mr. Brown's Treating Physician
1. Legal Standards
For disability claims filed after March 27, 2017, revised Social Security Administration regulations apply to the ALJ's consideration of the medical evidence. See Revisions to Rules Regarding the Evaluation of Medical Evidence (Revisions), 82 Fed.Reg. 5844-01, 2017 WL 168819, at *5844 (Jan. 18, 2017); 20 C.F.R. § 404.1520c. The revised regulations provide that Social Security “will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from [the claimant's own] medical sources.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Thus, the new regulations require an ALJ to apply the same factors to all medical sources when considering medical opinions. As the Ninth Circuit has explained, the revised Social Security regulations abrogate prior precedents requiring an ALJ to provide “specific and legitimate reasons supported by substantial evidence in the record” for rejecting the opinion of a treating physician. Woods v. Kijakazi, 32 F.4th 785, 788-92 (9th Cir. 2022).
Instead, “[w]hen a medical source provides one or more medical opinions or prior administrative medical findings, [Social Security] will consider those medical opinions or prior administrative medical findings from that medical source together using” the following factors: (i) supportability; (ii) consistency; (iii) relationship with the claimant; (iv) specialization; [and] (v) other factors that “tend to support or contradict a medical opinion or prior administrative medical finding.” 20 C.F.R. §§ 404.1520c(a), (c)(1)-(5). As set forth in Section 404.1520c(a), the “most important factors” Social Security considers when evaluating “the persuasiveness of medical opinions and prior administrative medical findings are supportability . . . and consistency[.]”
Regarding the supportability factor, the regulations provide that the “more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s), the more persuasive the medical opinions . . . will be.” 20 C.F.R. § 404.1520c(c)(1). As to the consistency factor, the “more consistent a medical opinion(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be.” 20 C.F.R. § 404.1520c(c)(2).
Section 404.1520c(b)(2) provides that Social Security “will explain how we considered the supportability and consistency factors for a medical source's medical opinions or prior administrative medical findings in your determination or decision.” Social Security “may, but [is] not required to, explain how [it] considered the [other remaining factors],” except when deciding among differing yet equally persuasive opinions or findings on the same issue. 20 C.F.R. § 404.1520c(b)(2)-(3).
2. Opinions of Dr. Kaveh Karandish
In a Medical Source Statement dated January 3, 2019, Mr. Brown's treating physician Dr. Kaveh Karandish opined that Mr. Brown had low back pain, cervicalgia, neuropathy, migraines, hyperlipidemia, depression, GERD, and bilateral carpal tunnel. (A.R. 1107). Dr. Karandish stated that Mr. Brown had severe pain and numbness in his right and lower extremities. (A.R. 1108). Dr. Karandish opined that the pain is severe enough to “constantly” interfere with attention and concentration. (Id.). Dr. Karandish opined that Mr. Brown would be unable to work as a result of his impairments. (A.R. 1109-10).
Dr. Karandish completed additional Medical Source Statements on May 26, 2020. (A.R. 7213-18). Dr. Karandish again opined that as a result of Mr. Brown's diagnoses, Mr. Brown's experience of pain was severe enough to “constantly” interfere with attention and concentration. (A.R. 7214). Dr. Karandish indicated that Mr. Brown used a cane and opined that Mr. Brown had the ability to stand, walk, and sit less than one hour in an eighthour day. (A.R. 7214, 7215, 7218). Dr. Karandish stated that Mr. Brown would need to take unscheduled breaks during an eight-hour workday and that Mr. Brown's legs should be elevated when sitting. (A.R. 7215). Dr. Karandish further opined that Mr. Brown had significant limitations in doing repetitive reaching, handling or fingering. (Id.). In addition, Dr. Karandish opined that Mr. Brown would be absent from work more than four times a month. (A.R. 7216, 7217).
The ALJ found Dr. Karandish's opinions to be unpersuasive. (A.R. 27-28). Regarding Dr. Karandish's opinion that Mr. Brown's pain was severe enough to constantly interfere with his attention and concentration, the ALJ stated that the opinion “lacks support and consistency as his own examinations of the claimant fail to support such a restrictive finding. Although abnormal exams are reflected, there were many occasions in which the claimant exhibited normal exams with consistent full strength throughout the record[.]” (A.R. 27) (emphasis added). The ALJ supported this finding by broadly citing to “Exhibits 1F/4, 7; 4F/5, 8, 11, 14, 25; 10F/2, 8, 11, 14, 17; 22F/1, 9, 12, 15, 18; 27F/14, 20, 23, 27, 30, 33, 36, 41; 43F/3, 7, 11, 15, 19, 23, 32, 36-37; 50F/3, 7; 51F/2.” (Id.). Plaintiff accurately observes that none of these cited records reflect strength testing. (Doc. 17 at 10).
The ALJ also broadly cited to Exhibits “5F/75; 36F/22, 62, 70, 78; 37F/189; 38F/74; 39F/112; 41F/272” when stating that there “is little to no evidence to support the claimant's attention and concentration are more than mildly affected as evidenced by the claimant's intact memory, cognition, and concentration[.]” (A.R. 27).
In explaining why he found Dr. Karandish's 2020 opinions unpersuasive, the ALJ stated that “the record lacks support for [Dr. Karandish's] restrictive assessment as his own treatment notes fail to corroborate his functional findings” and the “totality of the record further fails to support the doctor's extreme limitations in sitting, standing, and walking given the records that show frequently normal physical exams, full strength, and no abnormalities related to the claimant's lower extremities[.]” (A.R. 27, see also A.R. 28) (emphasis added). In support of these conclusions, the ALJ again broadly cited to Exhibits “1F/4, 7; 4F/5, 8, 11, 14, 25; 10F/2, 8, 11, 14, 17; 22F/1, 9, 12, 15, 18; 27F/14, 20, 23, 27, 30, 33, 36, 41; 43F/3, 7, 11, 15, 19, 23, 32, 36-37; 50F/3, 7; 51F/2.” (A.R. 27). To reiterate, none of those cited medical records reflect strength testing.
The ALJ's decision further states that “the doctor's assessment of significantly decreased ability to perform manipulation activities was not supported or consistent with the record which continued to show full strength in the claimant's upper extremities suggesting continued and frequent use of upper extremities[.]” (Id.). The ALJ again cited to the same Exhibits above that did not reflect strength testing. The ALJ stated that “[c]ane use was occasionally documented in 2019 and on one occasion in 2020 but lacked consistency or regular use/need[.]” (Id.).
Plaintiff asserts that the ALJ's explanation for rejecting Dr. Karandish's opinions is legally erroneous and not supported by substantial evidence. (Doc. 17 at 16). The Commissioner's Answering Brief asserts that the “only requirement under the applicable regulations is that the ALJ must discuss the factors of ‘supportability' and ‘consistency' in her evaluation.” (Doc. 19 at 13). The Commissioner argues that “Plaintiff misapprehends the applicable regulations in arguing that an ALJ is ‘obligated' to consider factors in addition to supportability and consistency in evaluating functional assessments.” (Id. at 13-14). The Commissioner asserts that “because the ALJ did not find Dr. Karandish's opinions and the prior administrative findings equally well supported and consistent with the record, there was no requirement that the ALJ consider any of the ‘other factors' listed in the regulations.” (Id. at 13). Yet, as Plaintiff accurately recounts (Doc. 20 at 8), 20 C.F.R. § 404.1520c(a) states: “When a medical source provides one or more medical opinions or prior administrative medical findings, we will consider those medical opinions or prior administrative medical findings from that medical source together using the factors listed in paragraphs (c)(1) through (c)(5) of this section, as appropriate.” (emphasis added). It is only when there are “[e]qually persuasive medical opinions or prior administrative medical findings about the same issue” that the requirement to “articulate how [Social Security] considered the other most persuasive factors in paragraphs (c)(3) through (c)(5)” is triggered. 20 C.F.R. § 404.1520c(b)(3) (emphasis added).
The ALJ did not find that this case presents equally persuasive medical opinions or prior administrative medical findings. Thus, while the ALJ was not required to articulate the factors set forth in § 404.1520c(c)(3)-(c)(5), Plaintiff is correct that the ALJ was still required to consider the factors.
“Even under the new regulations, an ALJ cannot reject an examining or treating doctor's opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence.” Woods, 32 F.4th at 792. An ALJ must “articulate . . . how persuasive” he or she finds “all of the medical opinions,” 20 C.F.R. § 416.920c(b), and “explain how [he or she] considered the supportability and consistency factor” in making those findings, 20 C.F.R. § 416.920c(b)(2). In addition, the Court must be able to “review the ALJ's decision based on the reasoning and factual findings offered by the ALJ-not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009).
The undersigned agrees with Plaintiff that the ALJ's decision does not sufficiently articulate the supportability and consistency factors when explaining why Dr. Karandish's opinions were found unpersuasive. The undersigned finds that this error is harmful and requires remand. See, e.g., Petrick v. Comm'r of Soc. Sec. Admin., No. CV-22-08175-PCT-JJT, 2023 WL 7383709, at *2 (D. Ariz. Nov. 8, 2023) (explaining that although the Ninth Circuit has held that its requirement that ALJs provide “specific and legitimate reasons” for rejecting a treating or examining doctor's opinion is incompatible with the revised regulations, “[n]onetheless, in rejecting an examining or treating doctor's opinion as unsupported or inconsistent, an ALJ must provide an explanation-that is, reasons- supported by substantial evidence”); Cervi v. Comm'r of Soc. Sec. Admin., No. CV-20-02056-PHX-SPL, 2022 WL 621765, at *3 (D. Ariz. Mar. 3, 2022) (“The ALJ fails to meaningfully explain how these findings [from Dr. Rakkar's own treatment notes] were ‘not substantially consistent' with Dr. Rakkar's opinions This failure is particularly notable because the examinations and treatment notes to which the ALJ refers could plausibly be read to support the limitations Dr. Rakkar found-after all, each of these allegedly inconsistent examinations nonetheless noted back pain and decreased ranges of motion. Without a more substantive explanation from the ALJ . . . this Court cannot find that the ALJ's discrediting of Dr. Rakkar's opinions is supported by substantial evidence.”) (citations omitted); Mercado v. Comm'r of Soc. Sec., No. 6:22-CV-287-DCI, 2023 WL 145154, at *5 (M.D. Fla. Jan. 10, 2023) (finding that “the mere reference to the ‘overall medical record' does not sufficiently articulate how the consistency factor was considered” and concluding that remand is appropriate).
D. The ALJ's Evaluation of Mr. and Ms. Brown's Statements Concerning Mr. Brown's Symptoms
1. The ALJ's Decision Fails to Sufficiently Evaluate Mr. Brown's Statements Concerning his Symptoms
When evaluating a claimant's testimony regarding subjective pain or symptoms, the ALJ must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). In the first step, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment “which could reasonably be expected to produce the pain or other symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The claimant does not have to show that the impairment could reasonably be expected to cause the severity of the symptoms. Rather, a claimant must only show that it could have caused some degree of the symptoms. Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).
If a claimant meets the first step, and there is no evidence of malingering, the ALJ can only reject a claimant's testimony about the severity of his or her symptoms by offering clear and convincing reasons that are supported by substantial evidence in the record. Lingenfelter, 504 F.3d at 1036. In evaluating a claimant's symptom testimony, the ALJ can consider many factors including: a claimant's reputation for truthfulness, prior inconsistent statements concerning the symptoms, unexplained or inadequately explained failure to seek treatment, and the claimant's daily activities. Smolen, 80 F.3d at 1284; see also 20 C.F.R. § 416.929(c)(4) (Social Security must consider whether there are conflicts between a claimant's statements and the rest of the evidence). In addition, although the lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in evaluating the testimony. Burch v. Barnhart, 400 F.3d 676 (9th Cir. 2005); see also 20 C.F.R. § 416.929(c); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).
Here, Mr. Brown stated in a Function Report that he was limited in his ability to walk, stand, and sit due to the pain and discomfort he experienced. (A.R. 318-326). Mr. Brown stated:
If I stand up stand up to[o] long I have to sit I can't sit in a regular chair. I need to constantly change position of my neck and back to releive [sic] the pressure. When I walk I just go blank and fall to the right mostly sometimes to the left....My feet and legs are asleep or in pain constantly.(A.R. 318). Mr. Brown stated that he was prescribed a cane on April 2, 2018 and that he needs to use the cane “all [the] time when walking[.]” (A.R. 324).
The ALJ's decision recounts the two-step process in evaluating a claimant's symptom testimony. (A.R. 23-24). The ALJ found that Mr. Brown's “medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” (A.R. 24).
In explaining why she discounted Mr. Brown's statements, the ALJ first stated that the “medical evidence of record does not support the claimant's allegations to the degree stated.” (A.R. 24). The ALJ then recounted Mr. Brown's history of degenerative disc disease and various MRI findings showing conditions such as disc protrusion and foraminal stenosis. (Id.). The ALJ noted that “there were many occasions in which [Mr. Brown's] physical exams were within normal limits during the relevant period in review.” (A.R. 25).
Regarding Mr. Brown's carpal tunnel syndrome and brachial plexitis, the ALJ recounted that although the medical records indicated a history of decreased sensory loss and abnormal reflexes in the bilateral upper extremity, there were also instances of intact sensation and reflexes. (A.R. 25). The ALJ also noted that while Mr. Brown has a documented history of epilepsy and migraines, Mr. Brown reported that his last seizure occurred in 2016 and the record “showed [Mr. Brown] received Botox for his migraine headaches in 2020[.]” (A.R. 24-25).
After summarizing portions of the medical record, the ALJ's decision states that the “totality of the record failed to support a greater degree of limitation including the need for a cane.” (A.R. 26). The decision states that the “record showed occasions in which [Mr. Brown] presented with a cane; however, there are no such documented occasions in 2018 or in the majority of 2020 and the record lacked a showing of regular use and often cited [that Mr. Brown] exhibited a normal/steady gait.” (Id.) (citing Exhibits 5F/14, 18, 33, 44, 57, 75; 8F/8; 9F/12, 21, 28, 41; 18F/5; 32F/88).
Although an ALJ may consider a lack of objective evidence in evaluating a claimant's testimony, a claimant's testimony of disabling symptoms cannot be discredited “merely because [it is] unsupported by objective evidence.” See Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). A claimant is not required to show “that [his] impairment could reasonably be expected to cause the severity of the symptom [he] has alleged; [he] need only show that it could reasonably have caused some degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). Nor must a claimant produce “objective medical evidence of the pain or fatigue itself, or the severity thereof.” Id.; Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (“[O]nce the claimant produces objective medical evidence of an underlying impairment, [the ALJ] may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain.”).
The undersigned agrees with Plaintiff that the ALJ failed to sufficiently explain how the medical evidence is inconsistent with Mr. Brown's statements. See Burrell v. Colvin, 775 F.3d 1133, 1137-38 (9th Cir. 2014) (criticizing ALJ rationale where the “decision then drifts into a discussion of the medical evidence; it provides no reasons for the credibility determination” and holding “we may not take a general finding . . . and comb the administrative record to find specific conflicts”) (emphasis original). The Court cannot affirm an ALJ's decision on a ground not asserted by the ALJ. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (“A reviewing court may not make independent findings based on the evidence before the ALJ to conclude that the error was harmless.”).
The undersigned further concurs with Plaintiff that the ALJ did not provide sufficient reasons for discounting Mr. Brown's statements that his purported use of a cane was medically necessary. Plaintiff correctly observes that the majority of the records that the ALJ cited in support of the conclusion that the “totality of the record failed to support a greater degree of limitation including the need for a cane” predate Mr. Brown's April 2, 2018 purported cane prescription. (Doc. 17 at 18).
“The clear and convincing standard is the most demanding required in Social Security cases.” Moore v. Comm'r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002). “Sheer disbelief” of the severity of a claimant's symptoms “is no substitute for substantial evidence.” Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004). The undersigned finds that the ALJ failed to provide specific, clear, and convincing reasons supported by substantial evidence for discounting Mr. Brown's statements regarding his impairments. This error is harmful and requires remand.
2. The ALJ's Discussion of Ms. Brown's Statements Concerning Mr. Brown's Symptoms
Ms. Brown completed a Third-Party Function Report. (A.R. 308-15). Ms. Brown stated that Mr. Brown “walks with a limp and a cane.” (A.R. 313). Ms. Brown stated that Mr. Brown was prescribed a cane and disabled placard in April 2018.(A.R. 314). Ms. Brown also testified at the administrative hearing. (A.R. 44-59). Ms. Brown stated that Mr. Brown's impairments greatly limited his activities of daily living and that the neuropathy in Mr. Brown's extremities affected his ability to walk and stand. (A.R. 5152). Ms. Brown stated that Dr. Karandish prescribed Mr. Brown a cane, which Mr. Brown “always” used for the last “four or five years of his life.” (A.R. 53)
Ms. Brown's Function Report is dated July 12, 2018; Ms. Brown noted on the form that the cane and placard were prescribed “3 months ago.” (A.R. 314, 315).
As to Ms. Brown's statements, the ALJ's decision provides: “Ms. Brown is a noted third party, her statements were considered but persuasiveness has not been assessed.” (A.R. 28). Yet the decision also provides: “Ms. Brown's third-party statements haves [sic] been considered; however, her statements do not overcome the objective evidence.” (Id.).
The undersigned agrees with the Commissioner that Ms. Brown is considered a lay witness. (Doc. 19 at 15). “The ‘clear and convincing' standard applies to the testimony of a claimant whose condition is capable of producing some symptom and for whom there is no evidence of malingering.” Matthews v. Astrue, No. CIV 09-184-JE, 2010 WL 2803941, at *6-7 (D. Or. June 15, 2010) (emphasis added) (citing Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1993)). Although Ms. Brown is the substitute party, Mr. Brown was the claimant. See id. (rejecting argument that the ALJ was required to provide clear and convincing reasons for discounting the statements by a substituted party following the death of the claimant as the substituted party testified as a lay witness). The undersigned finds that the clear and convincing standard does not apply to Ms. Brown's statements and testimony.
Prior to the new Social Security regulations that became effective March 27, 2017, Ninth Circuit case law held that lay testimony was “competent evidence that an ALJ must take into account, unless he or she expressly determines to disregard such testimony and gives reasons germane to each witness for doing so.” Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017) (quoting Lewis, 236 F.3d at 511). The Commissioner argues that under the applicable revised regulations, the ALJ was not required to discuss lay witness evidence. (Doc. 19 at 15). For cases that, like Mr. Brown's, were filed on or after March 27, 2017, the regulations no longer require the ALJ to articulate how he or she considered evidence from nonmedical sources. 20 C.F.R. § 404.1520c(d) (“We are not required to articulate how we consider evidence from nonmedical sources using the requirements in paragraphs (a)-(c) in this section.”).
The Ninth Circuit has not yet addressed the meaning of this provision or whether the “germane reasons” rule survives its enactment. Stephens v. Kijakazi, No. 22-35998, 2023 WL 6937296, at *2 (9th Cir. Oct. 20, 2023) (noting that “[w]e have not yet addressed whether under the new regulations an ALJ is still required to provide germane reasons for discounting lay witnesses” and declining to decide the issue because any error in the case in the ALJ's failure to address lay witness testimony was harmless). District courts have reached conflicting decisions on that issue. Compare Stricker v. Acting Comm'r of Soc. Sec. Admin., No. CV-21-0317, 2022 WL 3588215, at *6 (D. Ariz. July 29, 2022) (“Pursuant to Ninth Circuit caselaw from 1993, ‘[i]f the ALJ wishes to discount the testimony of the lay witnesses, he must give reasons that are germane to each witness' ....Defendant argues that caselaw no longer applies because the regulations have changed . . . [but] [t]his regulatory change does not provide that an ALJ need not articulate any reason for discounting evidence from lay witnesses, it only states that the ALJ's consideration need not follow the requirements for evaluating medical opinions. This regulatory change is not inconsistent with the Ninth Circuit's germane-reasons standard.”) with Wendy J. C. v. Saul, No. 3:19-CV-01434-AC, 2020 WL 6161402, at *12 n.9 (D. Or. Oct. 21, 2020) (“The new regulations provide the ALJ is ‘not required to articulate how [they] considered evidence from nonmedical sources....' As such, the ALJ is no longer required to provide reasons germane to lay witnesses to reject their testimony.”).
Yet “[w]hether the ALJ should provide written analysis about [nonmedical source] evidence depends on the circumstances of each case.” Kava v. Kijakazi, No. CV 20-00385 ACK-WRP, 2021 WL 4267505, at *7 (D. Haw. Sept. 20, 2021) (citing Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5,844, 5,850 (Jan. 18, 2017)). Social Security has noted that “individual, family members, and other nonmedical sources of evidence can provide helpful longitudinal evidence about how an impairment affects a person's functional abilities and limitations on a daily basis.” Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5,844, 5,850 (Jan. 18, 2017). Social Security has recognized that “[d]epending on the unique evidence in each claim, it may be appropriate for an adjudicator to provide written analysis about how he or she considered evidence from nonmedical sources, particularly in claims for child disability.” Id.
Here, due to Mr. Brown's death, only Ms. Brown was able to testify at the administrative hearing. The undersigned finds that in this matter it is appropriate for the ALJ to provide a written analysis about how Ms. Brown's testimony was considered regardless of whether the “germane reasons” standard has survived the enactment of the 2017 regulations. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5,844, 5,850 (Jan. 18, 2017). The undersigned further finds that the ALJ's decision does not contain an analysis that is sufficient for the Court to meaningfully review how the ALJ considered Ms. Brown's statements.
It is noted that Ms. Brown's testimony concerning Mr. Brown's symptoms largely duplicates Mr. Brown's statements. Therefore, legally sufficient reasons for discounting Mr. Brown's statements would render harmless any error in discounting Ms. Brown's statements even if the Ninth Circuit's “germane reasons” standard still applies to lay witnesses in cases subject to the 2017 revised regulations. See Valentine v. Comm'r Soc. Sec. Armin., 574 F.3d 685, 694 (9th Cir. 2009) (holding that when “the ALJ provided clear and convincing reasons for rejecting [the claimant's] own subjective complaints,” “it follows that the ALJ also gave germane reasons for rejecting [lay witness] testimony” that “was similar to such complaints”). It is thus unnecessary for the Court to decide whether the “germane reasons” standard applies in this case.
D. Remand for Further Proceedings
Ninth Circuit jurisprudence “requires remand for further proceedings in all but the rarest cases.” Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1101 n.5 (9th Cir. 2014). The Ninth Circuit, however, has adopted a test to determine when a case should be remanded for payment of benefits in cases where an ALJ has improperly rejected claimant testimony or medical opinion evidence. Id. at 1100-01; Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). This test is commonly referred to as the “credit-as-true” rule, which consists of the following three factors:
1. Has the ALJ failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion? Treichler, 775 F.3d at 1100-01.
2. Has the record been fully developed, are there outstanding issues that must be resolved before a disability determination can be made, or would further administrative proceedings be useful? Id. at 1101. To clarify this factor, the Ninth Circuit has stated that “[w]here there is conflicting evidence, and not all essential factual issues have been resolved, a remand for an award of benefits is inappropriate.” Id.
3. If the improperly discredited evidence were credited as true, would the ALJ be required to find the claimant disabled on remand? Id.; Garrison, 759 F.3d at 1020.
Where a court has found that a claimant has failed to satisfy one of the factors of the credit-as-true rule, the court does not need to address the remaining factors. Treichler, 775 F.3d at 1107 (declining to address final step of the rule after determining that the claimant has failed to satisfy the second step). Moreover, even if all three factors are met, a court retains the discretion to remand a case for additional evidence or to award benefits. Id. at 1101-02. A court may remand for further proceedings “when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act.” Garrison, 759 F.3d at 1021. In Treichler, the Ninth Circuit noted that “[w]here an ALJ makes a legal error, but the record is uncertain and ambiguous, the proper approach is to remand the case to the agency.” 775 F.3d at 1105.
After examining the record, the undersigned finds outstanding issues of fact to be resolved through further proceedings. The record contains material ambiguities and inconsistences that should be resolved by the ALJ. For instance, the VE testified that all work would be eliminated if Mr. Brown required the use of a cane (A.R. 69-70). Mr. and Ms. Brown indicated that Mr. Brown needed a cane that was prescribed in April 2018. Yet an April 2, 2018 medical record states: “No difficulty with ambulation or balance” and “Gait: Good strides with no bradykinesia or shuffling.” (A.R. 875-876). However, the record also contains a copy of a May 2018 “Patient Amendment Request” signed by Mr. Brown that disputes the notation in the April 2, 2018 record that Mr. Brown had “[n]o difficulty with ambulation or balance.” (A.R. 872-873). Mr. Brown states: “[The April 2, 2018 notation] is incorrect. I was a mess when I came to the office. I was unable to walk on my own, my wife was assisting me to walk. I was having tremors.” (A.R. 873). Dr. Karandish's May 2020 Medical Source Statement notes that Mr. Brown used a cane. (A.R. 7214). The undersigned recommends that the Court remand the case for further proceedings.
III. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Court reverse the decision of the Commissioner of Social Security and remand this case to the Commissioner for further proceedings.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this Report and Recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.