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rejecting characterization of treatment for back pain as conservative where it included narcotics and steroid lumbar injections, and collecting similar cases
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3:18-cv-00170-RCJ-CBC
03-12-2019
MATTHEW CHILDERS, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE
This Report and Recommendation is made to the Honorable Robert C. Jones, United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB 1-4.
This case involves the judicial review of an administrative action by the Commissioner of Social Security ("Commissioner") denying Childers' application for social security income benefits pursuant to titles XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383. Currently pending before the Court is Childers' motion for remand. (ECF No. 12.) In this motion, Childers seeks the reversal of the administrative decision and remand for an award of benefits. (Id.) The Commissioner filed a response to Childers' motion and a cross-motion to affirm. (ECF Nos. 19, 20.) Childers filed a reply (ECF Nos. 21, 22) reiterating the arguments in his motion for remand. For the reasons set forth herein, the Court recommends that Childers' motion for remand, (ECF No. 12), be granted, and the Commissioner's cross-motion to affirm, (ECF Nos. 19, 20), be denied.
I. STANDARDS OF REVIEW
A. Judicial Standard of Review
This Court's review of administrative decisions in social security disability benefits cases is governed by 42 U.S.C. § 405(g). See Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). Section 405(g) provides that "[a]ny individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action ... brought in the district court of the United States for the judicial district in which the plaintiff resides." The Court may enter, "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 cause for a rehearing." Id.
The Court must affirm an Administrative Law Judge's ("ALJ") determination if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006); see also 42 U.S.C. § 405(g) ("findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive"). "Substantial evidence is more than a mere scintilla but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (internal quotation marks and citation omitted). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); see also Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005).
To determine whether substantial evidence exists, the Court must look at the administrative record as a whole, weighing both the evidence that supports and undermines the ALJ's decision. Orteza v. Shalala, 50 F.3d 748, 749 (9th Cir. 1995) (citation omitted). Under the substantial evidence test, a court must uphold the Commissioner's findings if they are supported by inferences reasonably drawn from the record. Batson v. Comm'r, Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2003). "However, if evidence is susceptible of more than one rational interpretation, the decision of the ALJ must be upheld." Shalala, 50 F.3d at 749 (citation omitted). The ALJ alone is responsible for determining credibility and for resolving ambiguities. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999).
It is incumbent on the ALJ to make specific findings so that the court does not speculate as to the basis of the findings when determining if substantial evidence supports the Commissioner's decision. The ALJ's findings should be as comprehensive and analytical as feasible and, where appropriate, should include a statement of subordinate factual foundations on which the ultimate factual conclusions are based, so that a reviewing court may know the basis for the decision. See Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990).
B. Standards Applicable to Disability Evaluation Process
The individual seeking disability benefits bears the initial burden of proving disability. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995). To meet this burden, the individual must demonstrate the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected ... to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). More specifically, the individual must provide "specific medical evidence" in support of his claim for disability. See 20 C.F.R. § 404.1514. If the individual establishes an inability to perform his prior work, then the burden shifts to the Commissioner to show that the individual can perform other substantial gainful work that exists in the national economy. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998).
The first step requires the ALJ to determine whether the individual is currently engaging in substantial gainful activity ("SGA"). 20 C.F.R. §§ 404.1520(b), 416.920(b). SGA is defined as work activity that is both substantial and gainful; it involves doing significant physical or mental activities, usually for pay or profit. 20 C.F.R. §§ 404.1572(a)-(b), 416.972(a)-(b). If the individual is currently engaging in SGA, then a finding of not disabled is made. If the individual is not engaging in SGA, then the analysis proceeds to the second step.
The second step addresses whether the individual has a medically determinable impairment that is severe or a combination of impairments that significantly limits him from performing basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). An impairment or combination of impairments is not severe when medical and other evidence establish only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on the individual's ability to work. 20 C.F.R. §§ 404.1521, 416.921; Social Security Rulings ("SSRs") 85-28 and 96-3p.1 If the individual does not have a severe medically determinable impairment or combination of impairments, then a finding of not disabled is made. If the individual has a severe medically determinable impairment or combination of impairments, then the analysis proceeds to the third step.
The third step requires the ALJ to determine whether the individual's impairment or combination of impairments meets or medically equals the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926. If the individual's impairment or combination of impairments meets or equals the criteria of a listing and meets the duration requirement (20 C.F.R. §§ 404.1509, 416.909), then a finding of disabled is made. 20 C.F.R. §§ 404.1520(h), 416.920(h). If the individual's impairment or combination of impairments does not meet or equal the criteria of a listing or meet the duration requirement, then the analysis proceeds to the next step.
Prior to considering step four, the ALJ must first determine the individual's residual functional capacity ("RFC"). 20 C.F.R. §§ 404.1520(e), 416.920(e). The RFC is a function-by-function assessment of the individual's ability to do physical and mental work-related activities on a sustained basis despite limitations from impairments. SSR 96-8p. In making this finding, the ALJ must consider all of the symptoms, including pain, and the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence. 20 C.F.R. §§ 404.1529 and 416.929; SSRs 96-4p, 96-7p. To the extent that objective medical evidence does not substantiate statements about the intensity, persistence, or functionally-limiting effects of pain or other symptoms, the ALJ must make a finding on the credibility of the individual's statements based on a consideration of the entire case record. The ALJ must also consider opinion evidence in accordance with the requirements of 20 C.F.R. §§ 404.1527 and 416.927 and SSRs 96-2p, 96-5p, 96-6p, and 06-3p.
After making the RFC determination, the ALJ must then turn to step four in order to determine whether the individual has the RFC to perform her past relevant work ("PRW"). 20 C.F.R. §§ 404.1520(f), 416.920(f). PRW means work performed either as the individual actually performed it or as it is generally performed in the national economy within the last 15 years or 15 years prior to the date that disability must be established. In addition, the work must have lasted long enough for the individual to learn the job and performed at SGA. 20 C.F.R. §§ 404.1560(b), 404.1565, 416.960(b), 416.965. If the individual has the RFC to perform his past work, then a finding of not disabled is made. If the individual is unable to perform any PRW or does not have any PRW, then the analysis proceeds to the fifth and last step.
The fifth and final step requires the ALJ to determine whether the individual is able to do any other work considering his RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g), 416.920(g). If he is able to do other work, then a finding of not disabled is made. Although the individual generally continues to bear the burden of proving disability at this step, a limited evidentiary burden shifts to the Commissioner. The Commissioner is responsible for providing evidence that demonstrates that other work exists in significant numbers in the national economy that the individual can do. Lockwood v. Comm'r, Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
II. CASE BACKGROUND
A. Procedural History
On February 25, 2016, Childers protectively filed for Supplemental Security Income ("SSI") benefits under Title XVI of the Social Security Act, alleging a disability onset date of June 4, 1997. (Administrative Record ("AR") 173.) The Social Security Administration initially denied Childers' application on May 3, 2016, and upon reconsideration on July 26, 2016. (AR 60-74, 76-93.) Childers subsequently requested an administrative hearing. (AR 111.)
On May 31, 2017, Childers amended his onset date to February 25, 2016. (AR 278.)
On June 14, 2017, Childers and his attorney appeared at a hearing before an Administrative Law Judge. (AR 15.) Scott K. Nielson Jr., a vocational expert ("VE"), also appeared at the hearing. (Id.) The ALJ issued a written decision on November 7, 2017, finding that Childers was not disabled because he could perform work existing in significant numbers. (AR 15-26.) Childers appealed, and the Appeals Council denied review on March 1, 2018. (Id. at 1-6.) Accordingly, the ALJ's decision became the final decision of the Commissioner. Having exhausted all administrative remedies, Childers filed a complaint for judicial review on April 24, 2018. (ECF No. 1.)
B. ALJ's Decision
In the written decision, the ALJ followed the five-step sequential evaluation process set forth in 20 C.F.R. §§ 404.1520 and 416.920. (AR 15-36.) Ultimately, the ALJ disagreed that Childers has been disabled from February 25, 2016, through the present date. (Id. at 25.) The ALJ held that, based on Childers' RFC, his age, education and work experience, he was able to perform past work and there were jobs in the national economy that he could perform. (Id. at 24-25.)
In making this determination, the ALJ started at step one. Here, the ALJ found that Childers had not engaged in substantial gainful activity from the alleged onset date of February 25, 2016, through present. (Id. at 17.) At step two, the ALJ found that Childers had the following severe impairments: major depressive disorder, recurrent, moderate with anxious distress with obsessive-compulsive, posttraumatic and social phobic features with roots in attention deficit hyperactivity disorder ("ADHD") and lumbar degenerative disc disease per 20 C.F.R. § 416.920(c). (Id.) At step three, the ALJ found that Childers did not have an impairment or combination of impairments that either met or medically equaled the severity of those impairments listed in 20 C.F.R. Part 404, Subpart P, Appx. 1; 20 C.F.R. §§ 416.920(d), 416.925, and 416.926. (Id. at 17-19.) Next, the ALJ then determined Childers' RFC. The ALJ determined that Childers had an RFC to perform less than the full range of light work, as defined by 20 C.F.R. § 416.967(b), which required Childers avoid all contact with the general public and only occasional exposure to coworkers. (Id. at 19.) According to the ALJ's RFC determination, Childers was capable of "perform[ing] simple, repetitive tasks and make simple work related decision[s]." (Id.) However, he should "never climb stairs, ramps, ladders, or scaffolds; [or] [sic] balance," and he can only "occasionally stoop, kneel, crouch, and crawl." (Id.) Additionally, he "must avoid all unprotected heights." (Id.)
Based on this RFC determination, the ALJ determined Childers was capable of performing light work. (Id. at 25.) In addition, the ALJ found Childers not disabled and denied his application for a period of disability and supplemental security income benefits. (Id. at 25-26.)
III. DISCUSSION
There are three issues raised on appeal: (1) whether the ALJ properly determined the RFC; (2) whether the ALJ properly weighed the medical evidence; and, (3) whether the ALJ properly discounted Childers' subjective testimony. (ECF No. 12.) The Court will address each issue in turn.
A. Residual Functional Capacity
First, Childers' argues the ALJ's decision that he can do light work is not supported by substantial evidence because the record shows he needs a cane to ambulate, and light work requires the ability to stand or walk during most of the workday. (ECF No. 12 at 12-13.) In contrast, the Commissioner argues that the ALJ properly determined the RFC of light work. (ECF No. 19 at 2-4.) Furthermore, the Commissioner argues whether the use of a cane generally precludes light work activity is wholly immaterial, because the ALJ identified specific light jobs consistent with the RFC, and the VE specifically explained why the identified jobs were still performable notwithstanding the use of a cane. (Id.)
Childers' argument about his need to use a cane are unconvincing. First, Dr. Corson's report of August 24, 2017 is consistent with the ALJ's finding that Childers is capable of light work even though it mentions that Childers needs the assistance of a cane to ambulate. (AR 22-26, 584-588.) The report states that Childers can sit, stand, and walk for eight hours during an eight-hour workday as long as he alternates; lift and carry eleven (11) to twenty (20) pounds occasionally, and frequently lift ten (10) pounds; use his hands for repetitive actions, such as grasping, pushing, pulling, and fine manipulation; stoop, kneel, crouch, and crawl occasionally; and that he has no limitations to moving mechanical parts, operating a motor vehicle and humidity, chemicals, dust and fumes, pulmonary irritants, extremes of temperature, and vibrations or noises. (AR 584-588.)
Second, and most importantly, the ALJ did consider the fact that Childers' needed a cane to ambulate. (AR 22-26.) The ALJ presented interrogatories to the VE, specifically asking him to consider a hypothetical individual with Childers' age, education, and RFC, who required a cane for ambulation. (AR 296-299.) The VE responded and said, for example, that jobs as marker II, photocopy machine operator, or silver wrapper would be appropriate and these jobs were available in significant numbers nationally. (AR 302.) Therefore, substantial evidence supports the ALJ's decision that Childers is not disabled and is capable of light work even if he uses a cane.
B. Medical Evidence
Next, Childers argues the ALJ's finding that Childers had the RFC to perform light work is not supported by substantial evidence. (ECF No. 12 at 13-14.) Specifically, he repeats his argument that he is precluded from light work because he requires a cane for ambulation. (Id. at 13.) Additionally, he objects to the ALJ giving Dr. Robert Wildman's Mental Status Exam ("MSE") "considerable weight" while affording his Medical Source Statement ("MSS") "little weight." (Id. at 13-14.) Finally, Childers' argues that the RFC is not supported by "the substantial weight of the evidence." (Id. at 14.) In contrast, the Commissioner argues the ALJ did not err because he properly resolved ambiguities within the medical record evidence, and he properly considered the conflicting sources and translated Childers' social limitations into Childers' RFC. (ECF No. 19 at 4-5.)
The Court has already addressed this argument in Section A, and, therefore, will not address the argument herein. --------
1. Doctor Robert Wildman
The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195, 1201-1202 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally speaking, a treating physician's opinion carries more weight than an examining physician's opinion, and an examining physician's opinion carries more weight than a non-examining physician's opinion. Holohan, 246 F.3d at 1202.
To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its source, the Court considers whether (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical professional only for "clear and convincing" reasons. Lester, 81 F.3d at 830-831. In contrast, a contradicted opinion of a treating or examining professional may be rejected for "specific and legitimate" reasons. Id. at 830. The ALJ can "meet this burden by setting out a detailed and thorough summary of the facts and the conflicting clinical evidence, stating his interpretation thereof, and making findings." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1991) (citation omitted).
"The ALJ need not accept the opinion of any physician . . . if that opinion is brief, conclusory, and inadequately supported by clinical findings." Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Batson v. Commissioner of Social Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). The ALJ discounted Dr. Wildman's MSS opinion, which consisted primarily of a check-the-box form, because it was conclusory in nature and not well supported by the other medical evidence in the record, including Dr. Wildman's own detailed MSE opinion. (AR 24-25.) In making this determination, the ALJ found that Dr. Wildman's MSS opinion "differs considerably from the doctor's functional assessment statement . . . of moderate limitations and allegations of symptoms modification by the claimant." (AR 24.) Indeed, there existed in the record uncontested opinions from both Dr. Wildman and other physicians, that were based on clinical findings that contained less severe limitations than those contained in Dr. Wildman's MSS opinion, which the ALJ found more persuasive, as was his prerogative to determine. (See AR); Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). In short, the ALJ's reasoning provided specific and legitimate reasons supported by substantial evidence for disregarding Dr. Wildman's MSS opinion. Therefore, the ALJ did not err in assigning reduced weight the Dr. Wildman's MSS opinion.
2. Review of the Medical Record Evidence
In determining Childers' RFC, the ALJ explained that a review of the entire record led to the conclusion that Childers' physical capacity fell within the light range and Childers was limited to simple, repetitive tasks with limitations such as a cane for ambulation and the need to avoid all contact with the general public and only occasional exposure to coworkers. (AR 19-26.) The ALJ first discussed opinions on Childers' mental condition from doctors Araza, Gilson, Drymalski, Wildman, and Corson. (AR 23-26.) After reviewing the opinions of Childers' mental condition, the ALJ afforded considerable weight to Dr. Wildman's functional assessment and to Dr. Corson's physical evaluation, which both limited Childers to simple, repetitive tasks. (Id.)
Contrary to Childers' argument, there is substantial evidence in the record to support the ALJ's determination. An independent review of the record demonstrates reoccurring inconsistencies between reports. For example, the record indicates: Childers' goes to casinos (AR 41); that he did not attend special education classes (AR 202); he has no problems with personal care (AR 210), and can do laundry, go to the store, handle finances, and make his own food (AR 211-212, 228); that he can regularly lift ten (10) pounds and occasionally lift eleven (11) to twenty (20) pounds (AR 584-588); he regularly reports that his psychiatric medications are helping (AR 373, 397, 419, 422, 425, 457, 460, 463, 466, 469, 472, 493); he reports that the medications for his low back pain are providing between fifty (50) and sixty (60) percent relief (AR 538-542, 558-560), and that the pain is only moderate (AR 519-523, 528-531); that "with the current medication regimen, his pain symptoms are adequately managed" (AR 538-542); and he can understand, remember, and carry out simple and detailed instructions (AR 574-579). At the same time, the record indicates: Childers stays away from large crowds (AR 41); that he can only pay attention for about one minute and cannot follow instructions (214, 228-231); that he can only lift a gallon of milk (AR 47); that his cognitive impairment has worsened with his medications (AR 446); that he experiences severe agitation which has led him to self-harm at least once (AR 479-483, 496-498); that his low back pain ranges from a six (6) out of ten (10) to an eight (8) out of ten (10) with ten (10) being the worst pain and one (1) being no pain (AR 538, 544, 549, 558, 561).
Childers argues for another interpretation of the evidence but does not establish that the ALJ erred in fact or law in analyzing the evidence. The ALJ, not this Court, is responsible for reviewing the evidence and resolving conflicts or ambiguities. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008); Morgan v. Comm'r of Social Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). While another ALJ may have reached a different conclusion, this ALJ's conclusion is supported by substantial evidence. Where evidence is susceptible to more than one interpretation, the ALJ's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). In determining a claimant's RFC, the ALJ must consider all relevant evidence in the record. Robbins v. Social Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). An ALJ is not required to adopt any one medical opinion, but instead must translate Childers' limitations into work-related restrictions and functions, as the ALJ did here. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174-1176 (9th Cir. 2008) (ALJ may properly translate a plaintiff's exertional and non-exertional impairments into an RFC finding).
The ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence. Here, the ALJ properly translated Childers' limitations into the RFC by reviewing the entire record. For the reasons discussed above, the ALJ's determination that Childers could perform light work as part of developing Childers' RFC was supported by substantial evidence in the record.
C. Childers' Subjective Credibility
Finally, Childers contends that, the ALJ did not properly assess his subjective symptom testimony. (ECF No. 12 at 14-17.) In doing so, Childers argues that the ALJ's reasons for rejecting Childers' symptom testimony were improper. (Id.) First, Childers argues that the ALJ failed to state clear and convincing reasons for rejecting Childers' testimony. (Id.) Second, Childers argues that the ALJ improperly relied on the stability and lack of treatment of Childers' physical and mental health symptoms. (Id. at 15-16.)
By contrast, the Commissioner alleges that the ALJ provided valid bases for finding Childers not fully credible. (ECF No. 19 at 5-8.) Specifically, the Commissioner highlights the ALJ's discussion of Childers' medication treatment and objective medical evidence. (Id.)
"In assessing the credibility of a claimant's testimony regarding subjective pain or the intensity of symptoms, an ALJ engages in a two-step analysis." Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). First, the ALJ determines whether there is "objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged." Id. (quoting Vasquez v. Astrue, 572 F.3d 586, 691 (9th Cir. 2009)). If there is such evidence, then the ALJ "may not discredit [the] claimant's testimony of pain and deny disability solely because the degree of pain alleged by the claimant is not supported by objective medical evidence." Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991) (en banc). Instead, at the second step of the analysis, unless there is affirmative evidence that the claimant is malingering, the ALJ must give "specific, clear and convincing reasons" before discrediting the claimant's testimony. Molina, 674 F.3d at 1112 (quoting Vasquez, 572 F.3d at 591). To support a finding of less than fully credible, the ALJ is required to point to specific facts in the record that demonstrate that the individual's symptoms are less severe than they claim. See Vasquez, 572 F.3d at 592 (internal citation omitted).
"In evaluating the claimant's testimony, the ALJ may use 'ordinary techniques of credibility evidence.'" Id. (quoting Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1224 n.3 (9th Cir. 2010)). For example, the ALJ may consider the claimant's reputation for truthfulness, prior inconsistent statements, inconsistencies between the claimant's testimony and their conduct, an unexplained or inadequately explained failure to seek treatment, the claimant's daily activities, the claimant's work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the claimant's symptoms. See Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002).
At step one of the two-step process, the ALJ determined that Childers had a medically determinable impairment that could reasonably be expected to cause some degree of the alleged symptoms. At step two, the ALJ found that Childers' subjective testimony was not full credible. Because the record does not contain any affirmative evidence of malingering, the ALJ is required to provide clear and convincing reasons to discredit Childers' testimony. See Lingenfelter, 504 F.3d at 1036. "Factors that an ALJ may consider in weighing a claimant's credibility include reputation for truthfulness, inconsistencies in testimony or between testimony and conduct, daily activities, and unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment." Astrue, 495 F.3d at 636.
Despite Childers' allegations to the contrary, the ALJ provided clear and convincing reasons for finding him not fully credible. The ALJ cited three reasons for partially discrediting Childers' testimony, including: (1) Childers' treatment has been conservative; (2) Childers' symptoms are relatively stable and are being managed by the prescribed treatment; (3) inconsistency with the objective medical evidence. (AR 22-24.)
1. Conservative Treatment
The first reason mentioned by the ALJ in rejecting Childers' testimony is that Childers' treatment has been conservative which contrasts with allegations of disabling symptoms and limitations. (Id. at 22.) Conservative treatment can suggest a lower level of both pain and functional limitation, justifying an adverse credibility determination. See Tommasetti v. Astrue, 533 F.3d 1035, 1039-40 (9th Cir. 2008); Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995); see also Gutierrez v. Commissioner of Social Sec. Admin., 2014 U.S. Dist. LEXIS 38060, 2014 WL 1225118, at *5 (D. Or. Mar. 24, 2014), aff'd, 671 Fed. Appx. 526, 2016 U.S. App. LEXIS 22021, 2016 WL 7187397 (9th Cir. Dec. 12, 2016) (clear and convincing reasons to discount claimant's credibility included conservative treatment involving physical therapy, weight loss, and medications). The ALJ can also infer that a claimant's symptoms are, "not as all-disabling as . . . reported." Tommasetti, 533 F.3d at 1039-40 (finding a claimant's favorable response to conservative treatment undermined his "reports regarding the disabling nature of his pain."). However, "[a] claimant cannot be discredited for failing to pursue non-conservative treatment options where none exists." LaPeirre-Gutt v. Astrue, 382 Fed. Appx. 662, 664 (9th Cir. 2010). Conservative treatment "is not a proper basis for rejecting the claimant's credibility where the claimant has a good reason for not seeking more aggressive treatment." Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (citing Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007)).
Childers asserts symptoms resulting from both underlying physical and mental health impairments. The Court addresses them separately.
2. Conservative Mental Health Treatment
The ALJ found that Childers only received conservative treatment, noting that there was no inpatient treatment or psychiatric hospitalization. (AR 22.) The fact that Childers had not been hospitalized suggests conservative treatment, but that fact alone is insufficient. Matthews v. Astrue, Cas No. EDCV 11-01075-JEM, 2012 U.S. Dist. LEXIS 47903, 2012 WL 1144423, at *9 (C.D. Cal. Apr. 4, 2012) (finding that claimant's care was not conservative because although claimant was not hospitalized, he received outpatient care and took psychotropic medication). Additionally, the ALJ indicated that Childers' prescribed drug regimen was a "conservative" course of treatment. (AR 22.) The record reveals that Childers was prescribed Seroquel, Lithium, and Norco, among other medications. (See AR 203, 216, 232, 265-68, 581-588.) Childers' prescriptions were monitored and adjusted in conjunction with regular in-person appoints with Susan Drymalski, M.D. and Natalia Baldo, M.D.. (See, e.g., AR 350-354, 359-362, 373-377, 397-399, 404-407, 419-427, 457-474, 493-501, 514-535.) This was not a conservative course of treatment, and the ALJ erred in concluding otherwise. Seroquel is a "strong" psychiatric medication. Dallas v. Colvin, Cas No. CV-13-02044-PHX-JZB, 2015 U.S. Dist. LEXIS 27593, 2015 WL 1097309, at *6 (D. Ariz. Mar. 6, 2015). Numerous courts "specifically have recognized that the prescription of . . . Seroquel connotes mental health treatment which is not 'conservative,' within the meaning of social security jurisprudence." Johnson v. Colvin, Case No. ED CV 13-1476-PA €, 2014 U.S. Dist. LEXIS 80159, 2014 WL 2586886, at *5 (C.D. Cal. Mar. 18, 2014), adopted, 2014 U.S. Dist. LEXIS 80170, 2014 WL 2589777 (C.D. Cal. June 7, 2014); accord Quiroz v. Berryhill, 2018 U.S. Dist. LEXIS 25298, 2018 WL 922130, at *7 (C.D. Cal. Feb. 14, 2018) ("it is entirely unclear to the court how treatment with such medications [as Seroquel] could be characterized as conservative").
As with Seroquel, some of the other prescriptions of record connote aggressive treatment. For example, Lithium is a "powerful" medicine. Carden v. Colvin, Case No. 2:13-3856-E, 2014 U.S. Dist. LEXIS 27725, 2014 WL 839111, at *5 (C.D. Cal. Mar. 4, 2014). Ample case law exists within the Ninth Circuit concluding that an ALJ errs by describing as conservative the prescription of such drugs as Lithium. See, e.g., 2014 U.S. Dist. LEXIS 27725, [WL] at *3 (collecting cases and holding that prescriptions of, inter alia, Lithium and Seroquel was not "conservative" within the mean of social security jurisprudence); Sandberg v. Comm'r of the SSA, Case No. 3:14-cv-00810-ST, 2015 U.S. Dist. LEXIS 67103, 2015 WL 2449745, at *6 (D. Or. May 22, 2015) ("Prescription medicine such as Lithium is certainly not conservative"); Johnson, 2014 U.S. Dist. LEXIS 80159, 2014 WL 2586886, at *5 (prescription of Seroquel "connotes mental health treatment which is not 'conservative'").
Courts have concluded that it is error to describe as conservative a course of treatment including psychiatric drugs like those in the record here, in instances in which there is no history of hospitalization. See Scarborough v. Berryhill, 2017 U.S. Dist. LEXIS 32716, 2017 WL 896283, at *5 (E.D. Cal. Mar. 7, 2017). The ALJ's conclusion that Childers was subject only to conservative mental health treatment lacks substantial evidence. The error was not harmless. Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (harmless error doctrine applies in social security context when the reviewing court can "confidently conclude" that the error was "inconsequential to the ultimate nondisability determination").
3. Conservative Treatment for Back Pain
Childers' treatment for back pain was not conservative in nature. Childers was taking narcotics, as opposed to over-the-counter medication, was prescribed a cane and physical therapy, and he received steroid lumbar injections in 2016 and 2017 for his pain. (AR 265-268, 450-453, 538-42, 549-553, 563, 566-567, 584-588.) Childers testified that he still experiences constant pain, with the pain shooting down his left leg, and that he is prone to falling as a result. (AR 42-43.) The steroid injections, in and of themselves, may render the treatment not conservative as the Ninth Circuit has noted, "we doubt that [sic] steroid shots the neck and lower back qualify as 'conservative treatment.'" Garrison v. Colvin, 759 F.3d 995, 1015 n.20 (9th Cir. 2014). Many courts consider the use of narcotics and injections for pain management not conservative in nature. Lapierre-Gutt, 382 Fed. Appx. At 664 (treatment consisting of narcotics, occipital nerve blocks, and trigger point injections not conservative); Oldham v. Astrue, No. CV 09-1431-JEM, 2010 U.S. Dist. LEXIS 72353, 2010 WL 2850770, at *9 (C.D. Cal. July 19, 2010) (finding "several instances of lumbar epidural steroid injections, . . . the length of the record over time, the intensity of certain procedures, and the evidence of numerous medications that Plaintiff took to alleviate pain render any argument Plaintiff's treatment was 'conservative' unconvincing"); Soltero de Rodriguez v. Colvin, 2015 U.S. Dist. LEXIS 125158, 2015 WL 5545038, at *4 (C.D. Cal. Sept. 18, 2015) (claimant's pain management plan consisting of narcotics and narcotic-like medications in addition to epidural steroid injections was mot conservative). But see Torres v. Colvin, No 2:13-cv-0082-GMN-PAL, 2014 U.S. Dist. LEXIS 141792, 2014 WL 4977321, at *17 (D. Nev. Oct. 6, 2014) (rejecting argument that alleged receipt of steroid injection, alone, overcame ALJ's characterization of treatment as conservative). Regardless, Childers' combination of treatments does not support the ALJ's conclusion that Childers' treatment was conservative. Thus, the ALJ's articulated reason does not meet the "clear and convincing" standard.
The ALJ's conclusion that Childers was subject only to conservative physical health treatment lacks substantial evidence. The error was not harmless. Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (harmless error doctrine applies in social security context when the reviewing court can "confidently conclude" that the error was "inconsequential to the ultimate nondisability determination").
4. Improvement and Medical Evidence
The second and third reasons mentioned by the ALJ are that Childers' symptoms improved with medication and prescribed treatment and that the medical records do not support the degree of severity. (AR 22.) An impairment that can be effectively controlled with treatment is not disabling. Warre v. Comm'r, Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). Further, while subjective pain testimony may not be rejected solely because it is not corroborated by objective medical findings, the medical evidence is a relevant factor in determining the severity of a claimant's pain and its disabling effect. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); 20 C.F.R. § 416.929(c)(2). In finding four, the ALJ cited a number of medical records supporting the conclusion that Childers' mental and physical health improved with the prescribed treatment and Childers is not as disabled as alleged. (AR 22.) This constitutes substantial evidence supporting clear and convincing reasons for the negative credibility finding.
Childers argues the ALJ misinterpreted the records. (ECF No. 12 at 14-17.) This argument has already been addressed by the Court in section B. As noted above, the ALJ, not this Court, is responsible for reviewing the evidence and resolving conflicts or ambiguities. Tommasetti, 533 F.3d at 1041; Magallanes, 881 F.2d at 751. As a result, evidence of improvement with treatment and objective evidence reflecting a lesser degree of symptoms than alleged was properly considered by the ALJ and these are clear and convincing reasons supported by substantial evidence for rejecting Childers' credibility.
D. Conclusion
Although the ALJ provided specific, clear, and convincing reasons for rejecting Childers' testimony based on improvement with the prescribed treatment, and the objective medical evidence, the ALJ failed to do so when rejecting Childers' testimony based on his conservative treatment. Therefore, there is a lack of substantial evidence, overall, supporting the ALJ's rejection of Childers' testimony. See Trevizo v. Berryhill, 871 F.3d 664, 682 (9th Cir. 2017) (when "vast majority of ALJ's bases for rejecting [claimant's] testimony were legally and factually erroneous," remaining reason did "not constitute substantial evidence supporting finding that [claimant's] symptoms were not as severe as she testified").
The Court cannot find the above errors harmless because they make up a substantial portion of the ALJ's credibility assessment. Carmickle, 533 F.3d 1155 at 1162. When "the ALJ fails to articulate an acceptable reason for either disbelieving [the claimant's] testimony . . . [the] case must be remanded to the ALJ to make adequate findings." Light v. Social Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997).
IV. Remand
The Court recommends the matter be remanded to the agency for further administrative proceedings. "The rare circumstances that result in a direct award are not present in this case." Leon v. Berryhill, 874 F.3d 1130, 2017 WL 7051119, at *4 (9th Cir. 2017, amended Jan. 25, 2018). "When the ALJ denies benefits and the court finds error, the court ordinarily must remand to the agency for further proceedings before directing an award of benefits." Id. at *2 (citing Treichler v. Comm'r of Social Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014)). The credit-as-true analysis "permits, but does not require, a direct award of benefits on review but only where the [ALJ] has not provided sufficient reasoning for rejecting testimony and there are no outstanding issues on which further proceedings in the administrative court would be useful," Leon, 874 F.3d 1130, 2017 WL 7051119, at *1. Under the three part rule, the Court first considers whether the "ALJ failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion." Garrison,759 F.3d at 1019. This step is met for the reasons set forth above.
However, at the second step, the Court considers whether there are "outstanding issues that must be resolved before a disability determination can be made" and whether further administrative proceedings would be helpful. Treichler, 775 F.3d at 1101. "In evaluating this issue, [the Court] consider[s] whether the record as a whole is free from conflicts, ambiguities, or gaps, whether all factual issues have been resolved, and whether the claimant's entitlement to benefits is clear under the applicable legal rules." Id. at 1104-1105. "Where . . . an ALJ makes a legal error, but the record is uncertain and ambiguous, the proper approach is to remand the case to the agency." Id. at 1105. When, as here, the ALJ's findings regarding the claimant's subjective testimony are inadequate, remand for further findings on credibility is appropriate. See Brynes v. Shalala, 60 F.3d 639, 642 (9th Cir. 1995). Therefore, the Court finds further administrative proceedings are necessary and recommends the case be remanded.
V. CONCLUSION
Having reviewed the Administrative Record as a whole, and weighing the evidence that supports and detracts from the Commissioner's conclusion, the Court finds that the ALJ's decision is not wholly supported by substantial evidence and recommends the case be remanded. The Court therefore recommends that Childers' motion for remand (ECF No. 12) be granted, and that the Commissioner's cross-motion to affirm (ECF No. 19) be denied.
1. Pursuant to 28 U.S.C. § 636(b)(1)(c) and Local Rule IB 3-2, the parties may file specific written objections to this Report and Recommendation within fourteen days of receipt. These objections should be entitled "Objections to Magistrate Judge's Report and Recommendation" and should be accompanied by points and authorities for consideration by the District Court.
2. This Report and Recommendation is not an appealable order and 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.
V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED that Plaintiff's motion for remand (ECF No. 12) be GRANTED and Defendant's cross-motion to affirm (ECF No. 19) be DENIED, and that the case be REMANDED to the agency for further proceedings.
DATED: March 12, 2019.
/s/ _________
UNITED STATES MAGISTRATE JUDGE