Opinion
23-cv-01596-BEN-JLB
07-31-2024
DANIEL O., Plaintiff, v. MARTIN O'MALLEY, Acting Commissioner of Social Security,[1] Defendant.
REPORT AND RECOMMENDATION REGARDING PLAINTIFF'S MERITS BRIEF
[ECF Nos. 10; 12]
Hon. Jill L. Burkhardt United States Magistrate Judge
This Report and Recommendation is submitted to the Honorable Roger T. Benitez, United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and General Order 707 of the United States District Court for the Southern District of California.
On August 30, 2023, plaintiff Daniel O. (“Plaintiff”) filed a complaint pursuant to 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social Security (the “Commissioner”) denying his application for disability insurance benefits. (ECF No. 1.)
Now pending before the Court and ready for decision is Plaintiff's merits brief.(ECF No. 10.) The Commissioner filed an opposition (ECF No. 12), and Plaintiff filed a reply (ECF No. 13). For the reasons set forth herein, the Court RECOMMENDS that Plaintiff's merits brief be GRANTED, and that judgment be entered reversing the decision of the Commissioner and remanding this matter for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
Despite requirements set forth in the Court's briefing schedule, Plaintiff filed a motion for summary judgment instead of a merits brief. (Compare EFC No. 8 at 2 (“Plaintiff shall file a merits brief ....”) with ECF No. 10.) The Court construes Plaintiff's motion for summary judgment as Plaintiff's merits brief. See Civ LR 7.1.e.6.e.1; Fed.R.Civ.P. Suppl. R. Soc. Sec. 5 advisory committee's note to 2022 amendment.
Similar to Plaintiff's error, the Commissioner filed a cross-motion for summary judgment instead of an opposition. (See ECF No. 8 at 2 (“The Commissioner shall file an opposition (not a cross-motion for summary judgment) ....”).) The Court construes the Commissioner's filing as his opposition to Plaintiff's merits brief.
I. PROCEDURAL BACKGROUND
On or around October 20, 2021, Plaintiff filed an application for disability insurance benefits under Title II of the Social Security Act, alleging disability beginning January 1, 2018. (Certified Administrative Record (“AR”), at 202-08.) After his application was denied initially and upon reconsideration (AR 113-17, 119-24), Plaintiff requested an administrative hearing before an administrative law judge (“ALJ”) (AR 12526). An administrative hearing was held on August 17, 2022. (AR 32-81.) Plaintiff appeared at the hearing with counsel, and testimony was taken from him, as well as from a vocational expert (“VE”). (AR 32-81.)
As reflected in his September 22, 2022, hearing decision, the ALJ found that Plaintiff had not been under a disability, as defined in the Social Security Act, from January 1, 2018, through March 31, 2020, the date last insured. (AR 15-31.) The ALJ's decision became the final decision of the Commissioner on July 5, 2023, when the Appeals Council denied Plaintiff's request for review. (AR 1-5.) This timely civil action followed.
II. SUMMARY OF THE ALJ'S FINDINGS
In rendering his decision, the ALJ followed the Commissioner's five-step sequential evaluation process. See 20 C.F.R. § 404.1520(a). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since January 1, 2018, the alleged onset date. (AR 18.)
At step two, the ALJ found that Plaintiff had the following severe impairments: depression, anxiety, and post-traumatic stress disorder (“PTSD”). (AR 18.) The ALJ addressed the following impairments that he found to be non-severe: psoriasis and psoriatic joint pain, hives, asthma and allergic rhinitis, tinnitus, migraine headaches, gastroesophageal reflux disease, tonsil stones, left shoulder pain, finger swelling and pain, knee pain, flat feet, a bunion, and a calcification in the left foot, and low back pain. (AR 18-20.) Additionally, the ALJ found that fibromyalgia and rheumatoid arthritis were not medically determinable impairments because neither was definitively diagnosed. (AR 20.)
At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments listed in the Commissioner's Listing of Impairments. (AR 20.) The ALJ did find that Plaintiff suffers from a moderate limitation in concentration, persistence, and pace, a mild limitation in understanding, remembering and applying information, a mild limitation in adapting and managing himself, and a moderate limitation in his ability to interact with others. (AR 2122.)
Next, the ALJ determined that Plaintiff had the residual functional capacity (“RFC”) “to perform a full range of work at all exertional levels” with the following “nonexertional” limitations: “He was limited to performing simple, repetitive tasks. He could interact with coworkers, the general public, and supervisors on a not-more-than-frequent basis.” (AR 22.)
For purposes of his step four determination, the ALJ determined that Plaintiff was unable to perform past relevant work as a cook. (AR 26.)
Based on the VE's testimony that a hypothetical person with Plaintiff's vocational profile and RFC could perform the requirements of occupations that existed in significant numbers in the national economy (i.e., prep cook, janitor, machine operator, bench assembler, subassembler, collator), the ALJ found that Plaintiff was not disabled under the law from January 1, 2018, through March 31, 2020, the date last insured. (AR 26-28.) III. PLAINTIFF'S CLAIMS OF ERROR
As reflected in Plaintiff's merits brief, the disputed issues that Plaintiff is raising as the grounds for reversal and remand are as follows:
1. Whether the ALJ did not properly consider or give weight to the disability rating assigned to Plaintiff by the Department of Veteran Affairs (the “VA”). (ECF No. 10-1 at 6-10.)
2. Whether the ALJ failed to properly analyze Plaintiff's subjective symptom testimony. (Id. at 10-20.)
3. Whether the ALJ “cherry-picked” evidence and failed to discuss contrary evidence in order to support his finding. (Id. at 20-21.) IV. STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401. This Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 52930 (9th Cir. 1986). “Where evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
V. DISCUSSION
A. The ALJ's Discounting of Plaintiff's VA Disability Rating
First, the Court turns to the issue of the ALJ's handling of the disability rating assigned to Plaintiff by the VA. In his decision, the ALJ noted the one hundred percent service-connected disability rating assigned to Plaintiff by the VA but then explained that:
The undersigned finds that in this case, the record establishes an adequate reason for giving the VA's determination lesser weight and finding it unpersuasive. Specifically, the evidence establishes that the claimant's joint pain has been mild since the alleged onset date. During the relevant period, it did not compromise his strength or range of motion, and it did not prevent him from working out at the gym multiple times a week or from becoming a martial arts instructor (Ex. 2F/473, 545, 1850). X-rays of the claimant's spine, hands, and feet taken during the relevant period all were negative for significant degenerative changes (Ex. 2F/117-120, 200). The claimant's migraines were not intractable and were managed with a triptan on an as-needed basis (Ex. 2F/280, 426, 485). There is no evidence of functional limitations associated with the claimant's mildly flat feet and bunion. There is no evidence of functional limitations associated with his tinnitus; he did not wear hearing aids, and he did not exhibit communicative deficits (Ex. 2F/749, 1553, 1758). Finally, as discussed above, the claimant's depressive disorder did not prevent him from living independently, accomplishing his activities of daily living and hobbies, thinking rationally, or interacting appropriately (Ex. 2F/176, 442, 451, 456, 482, 496, 500, 512-513, 518, 531, 561).
Further, the VA's rating is not a “medical opinion” as that term is defined by our regulations because the rating does not describe specific functional limitations in vocational terms (20 CFR 404.1513(a)(2)). The VA rating determines the compensation a Veteran will receive based on service-connected impairments, but it does not amount to a declaration that the claimant is incapable of performing all work. In contrast to Social Security disability benefits, veterans who receive VA disability compensation are free to work and are not limited in the amount of earnings they can receive. The VA's rating therefore gives little insight into the claimant's ability to engage in substantial gainful activity.(AR 25-26.)
Plaintiff argues that the ALJ erred in not either affording the VA's disability determination “great weight” or, in discounting the VA's determination, not providing “persuasive, specific, valid reasons for doing so.” (ECF No. 10-1 at 6-10 (relying on McCartey v. Massanari, 298 F.3d 1072 (9th Cir. 2001)).) In so doing, Plaintiff attempts to distinguish McCartey from the Ninth Circuit's recent decision Kitchen v. Kijakazi, 82 F.4th 732 (9th Cir. 2023), addressing the same issue. Specifically, Plaintiff characterizes McCartey as having three separate and independent holdings, only one of which was disturbed by Kitchen. (ECF No. 10-1 at 8.) In opposition, the Commissioner argues McCartey was overruled by Kitchen for cases filed after the Social Security Administration (“SSA”) enacted revised regulations in March 2017. (ECF No. 12 at 7-8.)
The ALJ decision in McCartey failed to address the plaintiff's 80% total disability rating assessed by the VA. McCartey, 298 F.3d at 1075. Citing the regulations in effect at the time and the consensus amongst nine other circuit courts, the Ninth Circuit held that not only must an ALJ consider the VA's findings in reaching his decision, but the ALJ “must [also] ordinarily give great weight to a VA determination of disability” due to the “marked similarity between these two federal disability programs.” McCartey, 298 F.3d at 1076. However, “[b]ecause the VA and SSA criteria for determining disability are not identical, . . . the ALJ may give less weight to a VA disability rating if he gives persuasive, specific, valid reasons for doing so that are supported by the record.” Id.
“A decision by any nongovernmental agency or any other governmental agency about whether you are disabled or blind is based on its rules and is not our decision about whether you are disabled or blind. We must make a disability or blindness determination based on social security law. Therefore, a determination made by another agency that you are disabled or blind is not binding on us.” 20 C.F.R. § 404.1504 (2002).
In Kitchen, just as in McCartey, the ALJ's decision failed to address the plaintiff's 80% total disability rating assessed by the VA. Kitchen, 82 F.4th at 738. However, the plaintiff had filed his application for disability benefits after the March 27, 2017, effective date for the SSA's revised regulations regarding evaluation of medical evidence. Id. Those regulations provide, in relevant part, that “‘[d]ecisions by other governmental agencies,' including the VA, are ‘inherently neither valuable [n]or persuasive,' and thus, an ALJ is not required to include any analysis about ‘a decision made by any other governmental agency.'” Id. (quoting 20 C.F.R. §§ 404.1504, 404.1520b(c)(1)). Analyzing each of the reasons McCartey relied upon, the Ninth Circuit held that “McCartey's theory and reasoning is clearly irreconcilable with the revised regulations.” Id. Specifically, the Ninth Circuit explained that (1) the new regulations are no longer silent as to whether the SSA must address a VA disability determination, (2) the SSA “cited research which undermines McCartey's logic about the ‘similarities' between the two disability programs” as a basis for the 2017 revision, and (3) the other circuit court to have considered the revised regulations “concluded they supersede that circuit's precedent requiring deference to VA determinations.” Id. at 739. “Put simply, the 2017 regulations removed any requirement for an ALJ to discuss another agency's rating.” Id.
Plaintiff asserts that the Ninth Circuit in Kitchen only overruled the “great weight” requirement set forth in McCartey but did not overrule the requirement to consider the VA's disability determination nor the requirement to provide “persuasive, specific, valid reasons” if deviating from the VA's determination. (ECF Nos. 10-1 at 8; 13 at 4-5.) To make this distinction, Plaintiff asserts that McCartey was decided “on the weight of logic and sister circuit decisions,” not “on any SSA rule or rule text.” (ECF No. 13 at 4.) As a result, Plaintiff declares the other “holdings” of McCartey “could not be changed merely by SSA rule change.” (Id. at 4-5.)
However, both from this Court's reading of McCartey and the Ninth Circuit's own analysis of McCartey set forth in Kitchen, Plaintiff is incorrect. As the Ninth Circuit explained,
McCartey gave several reasons for requiring that the ALJ give ‘great weight' to a VA disability determination: (1) nine other circuit courts to consider the issue had required that the VA rating be given at least some weight; (2) the regulations said only that another agency's determination was not binding on Social Security; and (3) there was a ‘marked similarity' between the VA's disability program and Social Security's disability program.Kitchen, 82 F.4th at 738 (citing McCartey, 298 F.3d at 1075-76). If Plaintiff's argument is that McCartey did not rely upon any affirmative text, then he is technically correct, only in that the rule at issue had previously been notably silent. It is no longer silent, which is part of the reason that McCartey is “clearly irreconcilable with the revised regulations.” Kitchen, 82 F.4th at 738-39 (“[A]s discussed, the regulations now explicitly state that Social Security ‘will not provide any analysis in [its] determination or decision about a decision made by any other governmental agency,' § 404.1504, and that such decisions are ‘inherently neither valuable nor persuasive.' § 404.1520b(c)(1).”).
Additionally, in both his merits brief and reply, Plaintiff asserts that the Ninth Circuit “chose not to declare McCartey overruled.” (ECF Nos. 10-1 at 8; 13 at 5.) In fact, Plaintiff goes on to assert that “the only time that word is used in the decision is the phrase ‘McCartey has not been overruled.'” (ECF No. 13 at 4.) However, Plaintiff's selective quoting of the Ninth Circuit is misleading. Read in context, Plaintiff is quoting the plaintiff's position in Kitchen-one that the Ninth Circuit rejected:
Kitchen relies on McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002), to support his contention that the ALJ was required to address the VA disability rating. But Kitchen fails to explain why we should not give effect to the new regulations, beyond saying (1) we have the power to “determine the law” under Article III and (2) McCartey has not been overruled. Kitchen does not argue that the new regulations are inconsistent with the Social Security Act. The Commissioner counters that McCartey is no longer good law for claims filed after March 27, 2017. We agree.Kitchen, 82 F.4th at 738. Further, Plaintiff's point here is unpersuasive for another reason. McCartey has certainly not been overruled in its entirety-it is still good law for claims filed prior to March 27, 2017. Instead of using the word “overruled,” the Court in Kitchen “agree[d]” that “McCartey is no longer good law for claims filed after March 27, 2017.”
Plaintiff also argues in his reply that the Ninth Circuit in Kitchen could not overrule McCartey because “only the en banc court or the Supreme Court” could “devalue a decades-long line of authority from multiple panels of the same Circuit Court.” (ECF 13 at 6.) Plaintiff is incorrect. The Ninth Circuit has set out the standard for when a three- judge panel “should consider itself bound by the later and controlling authority, and should reject the prior circuit opinion as having been effectively overruled.” Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003). Addressing that standard, the Ninth Circuit in Kitchen noted that “McCartey is binding unless its ‘reasoning or theory is clearly irreconcilable with the reasoning or theory of intervening higher authority, which in this case is the agency's updated regulations.'” Kitchen, 82 F.4th at 738 (quoting Woods v. Kijakazi, 32 F.4th 785, 790 (9th Cir. 2022)) (internal quotation marks omitted). Based on the legal standard and analysis, the Ninth Circuit in Kitchen rejected McCartey as effectively overruled by the 2017 revised regulations.
Finally, all other cases Plaintiff relies upon are similarly inapplicable because they all pre-date the 2017 revised regulations. See McLeod v. Astrue, 640 F.3d 881 (9th Cir. 2011) (application for benefits filed 2004); Hiler v. Astrue, 687 F.3d 1208 (9th Cir. 2012) (application for benefits filed 2004); Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685 (9th Cir. 2009) (application for benefits filed 2005); Luther v. Berryhill, 891 F.3d 872 (9th Cir. 2018) (application for benefits filed 2013).
Under the current regulations and Ninth Circuit case law, the ALJ need “not provide any analysis in [his] determination or decision about a decision made by any other governmental agency or a nongovernmental entity about whether [claimants] are disabled, blind, employable, or entitled to any benefits.” 20 C.F.R. § 404.1504. Rather, the ALJ need only “consider all of the supporting evidence underlying the [VA's] decision that [the ALJ] receive[s] as evidence in [the] claim in accordance with § 404.1513(a)(1) through (4).” 20 C.F.R. § 404.1504.
Here, the ALJ's decision reflects careful consideration of not only the medical records from VA sources but also the VA determination. Accordingly, IT IS RECOMMENDED that District Judge Benitez find that the ALJ did not err by discounting the VA's disability determination.
B. The ALJ's Analysis of Plaintiff's Subjective Symptom Testimony
1. Background of Plaintiff's Impairments
a. Plaintiff's Function Report Symptom Testimony
Plaintiff submitted a Function Report, dated February 4, 2022. (AR 226-33.) In the Function Report, Plaintiff stated that his conditions limit his mobility, cause joint swelling and pain, and result in joint, knee, foot, and back pain. (AR 226, 231.) Specifically, Plaintiff reports that his conditions affect his ability to lift, squat, bend, stand, reach, grip, type, walk, run, sit, kneel, and stair-climb. (AR 226, 231.) “All physical labor is painful,” and Plaintiff “[m]ust change posture every 30 minutes.” (AR 231.) Plaintiff can walk 15 minutes before needing a 15-minute break. (AR 231.)
Plaintiff states he does “nothing” from when he wakes up to when he goes to bed. (AR 227.) Despite that, Plaintiff also provides detailed information regarding his daily activities. For example, Plaintiff takes care of a pet cat by himself, which includes feeding and cleaning the litter box. (AR 227.) Twice a day, Plaintiff cooks for himself using a microwave or stove, which takes him about ten minutes. (AR 228.) His hobbies include reading, watching television, and practicing Muay Thai. (AR 230.) Although Plaintiff is capable of reading and watching television daily with regular posture changes, he has not been able to practice Muay Thai since his conditions began. (AR 230.) Once a day, Plaintiff goes outside, mostly to spend time in the yard. (AR 229.)
Regarding personal care, Plaintiff sometimes cannot dress himself, bending over to bathe or use the toilet is painful, and he sometimes needs a reminder to feed himself. (AR 227.) Plaintiff cites his PTSD as impeding his ability to take care of his personal needs and grooming. (AR 227, 228.) He relies on automated reminders to take medicine. (AR 228.)
Regarding home care, Plaintiff does the dishes every other day, which takes him about five minutes. (AR 228.) Once every two weeks, he goes shopping in a store for about twenty minutes. (AR 229.) Once a month, he vacuums his apartment for about ten minutes. (AR 228.) However, when his PTSD is “bad,” Plaintiff needs encouragement to do these things and “cannot do any[,] no bending over ever.” (AR 228.)
Regarding socialization, Plaintiff's PTSD, anxiety, and depression result in problems getting along with others, including authority figures. (AR 230, 231.) Typically, Plaintiff's daily socialization occurs by phone or email. (AR 230.) He also interacts with others while out at the supermarket, the doctor's office, and the VA every other week. (AR 230.) Plaintiff can go out by himself but tries to avoid it due to fear of a PTSD or anxiety attack. (AR 229.)
Finally, Plaintiff reports his conditions affect his memory, ability to complete tasks, concentration, understanding, and ability to follow directions. (AR 231.) For example, Plaintiff states he can pay attention for ten minutes at a time and does not follow written or spoken instructions well. (AR 231.) Plaintiff feels that he is “not at all” able to handle stress or changes in routine. (AR 232.) Plaintiff is able to pay his bills, handle a savings account, and use a checkbook or money order, though he has noticed an increase in stress and anxiety around handling money since his conditions began. (AR 229.)
b. Plaintiff's Administrative Hearing Symptom Testimony
At the administrative hearing held on August 17, 2022, Plaintiff testified as follows:
From 2007 to 2013, Plaintiff served as third class petty officer in the United States Navy. (AR 42-43; see also AR 218.) While in the military, Plaintiff worked as a “culinary specialist,” which required him to regularly lift items weighing 50 or more pounds. (AR 43.) He has not worked since 2014. (AR 42.)
Plaintiff was diagnosed with psoriasis and rheumatoid arthritis for which he takes a dose of Humira every two weeks. (AR 44, 64-65.) Although Plaintiff testified that he did not remember that Humira was deemed 90% effective at treating his psoriasis in spring 2019, he considers both the psoriasis and rheumatoid arthritis to be controlled on Humira, with no regular flare ups. (AR 46, 65.) Plaintiff's rheumatoid arthritis results in regular pain rated at 4/10. (AR 65.) Plaintiff also suffers migraines that occur, on average, once a week and last anywhere from a couple hours to sometimes until the next day. (AR 49, 70-71.) During a migraine, Plaintiff cannot hold a basic conversation or remain sitting or standing in a work environment. (AR 71.)
Plaintiff lives in a second-floor apartment, which he accesses by use of a staircase with a safety rail. (AR 52.) He is able to do household chores, though he describes this ability as “very limited” and “not something that . . . [he] do[es] every day.” (AR 53.) Plaintiff can take out the garbage, sweep and mop the floors “maybe once a week,” and do his laundry “[a]t times . . . if the load is . . . not that much.” (AR 53-54.) Plaintiff's friends and girlfriend “sometimes” help with tasks around his apartment. (AR 53-54.) Plaintiff is capable of making his own “very simple meals.” (AR 54.) One to two times a week he orders take-out from restaurants and picks it up himself. (AR 56-58.) Once a month he eats at a restaurant by himself. (AR 56-58.) Plaintiff is responsible for ensuring his vehicle registration and insurance are current. (AR 55.)
Twice a week Plaintiff works out at the gym for 20-30 minutes or so. (AR 61 (“at least 30 minutes”), 68 (“20 minutes on average”).) While working out, Plaintiff walks on a “curve machine,” completes basic rotator cuff exercises, such as those with bands, and curls dumbbells. (AR 62.) Plaintiff can curl 20-25 pounds and complete one to two sets of ten curls each with ten-pound dumbbells. (AR 62, 67-68.)
At “regular daily pain” levels, Plaintiff needs a ten-minute break after standing or sitting for 30 minutes. (AR 63-64, 69.) Given his rheumatoid arthritis and fibromyalgia pain, Plaintiff does not think he can lift more than small items consistently for half of an eight-hour workday. (AR 69.) However, Plaintiff is able to lift and carry groceries, including one gallon of milk, from the shelf into the cart, from the cart into his car, and up the stairs to his second-floor apartment. (AR 55, 64.)
Plaintiff has traveled by airplane, train, and car to visit friends and his girlfriend in Fresno, California. (AR 59.) When he drives to Fresno, the trip takes Plaintiff six hours and Plaintiff makes stops about every 30 minutes to get out and stretch. (AR 59, 66.)
Plaintiff receives both counseling and medication to assist with his psychological conditions. (AR 49.) Specifically, Plaintiff attends counseling for PTSD once a week, and Plaintiff sees a psychiatrist who prescribes medication. (AR 50.) Despite being treated, Plaintiff's anxiety and depression “make it difficult” to work. (AR 51.)
2. The Parties' Arguments
Plaintiff argues that the ALJ did not provide specific, clear, and convincing reasons for discounting his symptom testimony regarding his impairments. (ECF Nos. 10-1 at 1020; 13 at 6-10.) Specifically, he argues that the ALJ used “conclusory boilerplate” language rather than the requisite detailed discussion, to find that Plaintiff's statements regarding the “intensity, persistence[,] and limiting effects of [his] symptoms” are inconsistent with the medical evidence and other evidence in the record. (ECF No. 10-1 at 14.) Further, Plaintiff claims that, despite including a detailed summary of the medical record, the ALJ failed “to link specific medical evidence to the relevant testimony about [Plaintiff's] symptoms and explain why the former rendered the latter not credible.” (ECF Nos. 10-1 at 14; 13 at 8.) Additionally, Plaintiff claims that the ALJ's reasons for discounting his symptom testimony, particularly Plaintiff's activities of daily living, are not clear, convincing, or well-supported by evidence in the record. (ECF Nos. 10-1 at 1521; 13 at 9-11.)
In opposition, the Commissioner argues that the ALJ provided sufficient reasons for discounting Plaintiff's testimony and that the credibility determination is supported by substantial evidence. (ECF No. 12 at 8.) Specifically, the Commissioner asserts the ALJ demonstrated that (1) Plaintiff sought treatment which was “effective,” (2) “the medical evidence did not support debilitating limitations,” and (3) “Plaintiff's symptoms did not prevent him from engaging [in] a range of activities.” (Id. at 8-11.)
3. Legal Standard
The ALJ must engage “in a two-step analysis to determine whether a claimant's testimony regarding subjective pain or symptoms is credible.” Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). At 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.” Id. (internal quotation marks and citation omitted).
If the claimant satisfies the first step, and there is no determination of malingering by the ALJ, “the ALJ must provide ‘specific, clear[,] and convincing reasons for' rejecting the claimant's testimony regarding the severity of the claimant's symptoms.” Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)); see also Garrison, 759 F.3d at 1014-15; Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007). The Ninth Circuit “require[s] the ALJ to ‘specifically identify the testimony [from a claimant] [the ALJ] finds not to be credible and . . . explain what evidence undermines the testimony.'” Treichler, 775 F.3d at 1102 (quoting Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001)); see also Lambert v. Saul, 980 F.3d 1266, 1268 (9th Cir. 2020) (“[T]he ALJ must identify the specific testimony that he discredited and explain the evidence undermining.”); Smolen, 80 F.3d at 1284 (“The ALJ must state specifically which symptom testimony is not credible and what facts in the record lead to that conclusion.”). “If the ALJ fails to provide specific, clear, and convincing reasons for discounting the claimant's subjective symptom testimony, then the ALJ's determination is not supported by substantial evidence.” Ferguson v. O'Malley, 95 F.4th 1194, 1199 (9th Cir. 2024).
4. Analysis of ALJ's Reasons for Rejecting Symptom Testimony Regarding Plaintiff's Mental Limitations
a. Medication and Therapy
First, the Commissioner argues that the ALJ supported his credibility assessment by pointing out that Plaintiff sought treatment and such “treatment was effective.” (ECF No. 12 at 9.)
In assessing the credibility of a claimant's subjective symptom testimony, an ALJ may consider how the claimant's symptoms respond to medication or treatment. 20 C.F.R. § 404.1529(c)(3)(v). Evidence that a claimant's condition has been consistently managed or corrected by medication may undermine subjective complaints of disabling limitations. See Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for SSI benefits.”); Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017) (suggesting that evidence of medical treatment successfully relieving symptoms such that the individual can return to a level of function close to the level of function they had before they developed the symptoms or signs of mental disorders can undermine a claim of disability). However, “[r]eports of ‘improvement' in the context of mental health issues must be interpreted with an understanding of the patient's overall well-being and the nature of her symptoms.” Garrison, 759 F.3d at 1017. “They must also be interpreted with an awareness that improved functioning while being treated and while limiting environmental stressors does not always mean that a claimant can function effectively in a workplace.” Id.
Here, the Commissioner's opposition overstates the ALJ's decision by asserting the ALJ pointed to effective treatment as a reason for discounting Plaintiff's symptom testimony. Rather, the ALJ opined:
The evidence establishes that the claimant sought treatment for mental symptoms during the relevant period. He reported that his symptoms started during his military service. He described multiple past traumatic events, including a history of being bullied, being mugged by civilians in 2009, and being involved in ship-to-ship combat with pirates (Ex. 2F/308). He described symptoms such as sadness, anxiety, irritability, occasional crying spells and panic attacks, and suicidal thoughts with no plan. He told his mental-health providers that he tended to isolate himself because he felt safe in his home and more anxious when he left his home. He stated that his energy level was variable, that his motivation and interest in activities had diminished, and that he struggled to get out of his comfort zone (Ex. 2F/175, 177, 308, 441 -442, 456, 488, 512, 530-531, 618-619, 703).
The claimant was prescribed medication-Xanax for anxiety and zolpidem for sleep-to manage his mental symptoms (Ex. 2F/1300, 1336, 1340-1342, 1415). He also engaged in individual and group therapy. He reported that his therapy did not help him to the extent hoped (Ex. 2F/499); however, he learned coping skills, and he found them helpful (Ex. 2F/419, 481, 496, 530).(AR 23.)
It is not entirely clear from the language of his decision that the ALJ relied on effective treatment as a basis for discounting Plaintiff's symptom testimony. Assuming that he did, the basis is inadequately stated and supported. Seeking treatment, being prescribed medication, and attending therapy alone do not demonstrate that treatment was sufficiently effective to undermine Plaintiff's symptom testimony. The ALJ pointed to medication lists in the record-not any evidence that the prescribed medication was effective at reducing Plaintiff's mental health symptoms. (See AR 23 (citing AR 1570 (medication list), 1607 (same), 1610-12 (same), 1686 (same)).)
The closest the ALJ came to stating that treatment was effective was noting that Plaintiff learned “helpful” coping skills. In support, the ALJ cited to encounters where Plaintiff expressed appreciation for therapy (AR 690 (“Pt. verbalized enjoyment of [art therapy] and therapeutic benefit. Able to complete tasks without incident or difficulty.”), 752 (“Session ended with Veteran expressing sincere gratitude for our work and sessions.”)) and discussed strategies he has been “trying to use” from therapy (AR 752 (“Veteran spoke about some strategies he has been trying to counter feelings of sadness and loneliness (getting out of the house).”), 801 (“He says he is trying to use the tools he is learning in therapy. Still isolating quite a bit. Trying to get out of his comfort zone. Involved in peer support which is helping him.”)). Plaintiff's appreciation for and attempts to implement strategies from therapy do not demonstrate that treatment sufficiently minimized his symptoms to allow Plaintiff to function effectively in a workplace. See Garrison, 759 F.3d at 1017.
Additionally, the ALJ referenced a “brief check-in” Plaintiff had with his psychologist Dr. Victoria A. Farrow, regarding the termination of their treatment plan. (AR 767.) Although not expressly identified, the Court assumes that the ALJ relied upon Dr. Farrow's note that Plaintiff “expressed appreciation for our work to date, states that CPT skills do help him, and has learned a lot from writer.” (AR 767.) However, regarding that same encounter, Dr. Farrow also noted that they would no longer be proceeding with CPT because of Plaintiff's “lack of progress,” recent research supporting that Plaintiff has a “low likelihood of benefitting with continuing” that treatment approach, and Plaintiff's reports of increased depression and unchanging PTSD and anxiety since starting CPT treatment. (AR 766.) In fact, in the September 23, 2019 discharge note, Dr. Farrow opined that the “limited benefit from therapy to date (including attempts at several EBP PTSD t[reatment]s) is due in part to [Plaintiff's] skills deficits in a number of areas, including emotion regulation, distress tolerance, interpersonal effectiveness.” (AR 691.) Even assuming the CPT skills helped Plaintiff, the ALJ failed to explain whether or how the coping skills learned from therapy undermined Plaintiff's symptom testimony. See Schnapp v. Comm'r of Soc. Sec. Admin., No. CV-22-00664-PHX-SPL, 2023 WL 3627454, at *4 (D. Ariz. May 24, 2023) (“In sum, the ALJ did not elaborate on how Plaintiff's purported improvement related to her symptom testimony, nor did he establish that Plaintiff's symptoms as a whole are controlled such that Plaintiff is not disabled.”).
Without additional support from the record or further analysis, the ALJ's references to Plaintiff seeking and receiving treatment such as medication and therapy do not constitute “specific, clear[,] and convincing reasons” for discounting Plaintiff's subjective symptom testimony. Smolen, 80 F.3d at 1281.
b. Activities of Daily Living
As noted above, the ALJ credited Plaintiff's symptom testimony regarding his mental limitations to a substantial extent, finding that Plaintiff suffers from a moderate limitation in concentration, persistence, and pace, a mild limitation in understanding, remembering and applying information, a mild limitation in adapting and managing himself, and a moderate limitation in his ability to interact with others. Based on credible symptom testimony and the medical records, the ALJ determined that Plaintiff is limited to simple, repetitive tasks and not more than frequent contact with others. The ALJ discounted Plaintiff's subjective symptom testimony of greater limitation than is reflected in the RFC determination in part because Plaintiff's lifestyle and activities-such as Plaintiff's “ability to drive for extended durations, [including] the six[-]hour trip from his residence to Fresno to meet his friends and significant other, the ability to work out at a gym, and the ability to teach martial arts classes”-“demonstrate the ability to initiate and complete tasks consistent with a level of performing work.” (AR 24.) Specifically, the ALJ noted:
As stated in the discussion of the B criteria, the claimant lived independently and managed his home and finances. He drove. He prepared his own meals. His hobbies included watching television, listening to music, dining out, going to the beach and parks, going to the casino, playing video games, going to the gym twice a week, spending time on the computer, and reading newspapers, books, and magazines (Ex. 2F/527, 642; 3E). He also became a martial arts instructor at his gym. He obtained that job in March or April of 2019, and he reportedly enjoyed teaching people (Ex. 2F/518, 545, 618-619, 627, 642).
The evidence does not suggest that the claimant experienced worsening mental symptoms shortly after the date last insured that resulted in disabling mental dysfunction. He still lives independently and manages his activities of daily living. He regularly travels to Fresno to spend time with his girlfriend and friends. He regularly goes out to eat, and he goes to the gym two or three times a week (Hearing Record). Such evidence will not support a determination that the claimant is mentally disabled.(AR 24.)
“Engaging in daily activities that are incompatible with the severity of symptoms alleged can support an adverse credibility determination.” Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014); see also Revels v. Berryhill, 874 F.3d 648, 667 (9th Cir. 2017) (“[I]nconsistent daily activities may provide a justification for rejecting symptom testimony[.]”); Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (stating that a contradiction between a claimant's daily activities and his or her testimony is a ground for forming the basis of an adverse credibility determination). In other words, a court may consider inconsistencies between a claimant's words and her actions. See Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989), superseded on other grounds by 20 C.F.R. § 404.1502(a); see also Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“Only if the level of activity were inconsistent with Claimant's claimed limitations would these activities have any bearing on Claimant's credibility.”); cf. Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (“[T]he mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from her credibility as to her overall disability.”).
Here, the ALJ first summarized Plaintiff's testimony regarding his mental limitations as follows:
He struggles with understanding and remembering information, concentrating, and socializing. His mood ranges from sad, to lethargic, to very nervous and anxious. He has very poor tolerances for stress and changes in routine. His symptoms restrict many activities. He does not finish what he starts. He sometimes needs reminders to eat a meal or take his medications.
He tends to isolate himself because he gets nervous and depressed in public places or when he spends time with people. He does not get along well with authority figures. His attention span is short. He is able to follow only some oral instructions, and he has a poor ability to follow written instructions.(AR 23.)
Then, the ALJ listed a number of activities he found to be inconsistent with Plaintiff's symptom testimony regarding the extent of his mental limitations, including Plaintiff's ability to live independently, manage finances, manage his home, prepare meals, watch television, listen to music, dine out, and go to the beach, park, or casino. (AR 24.) Referencing additional analysis conducted in the Paragraph B criteria section, the ALJ specifically connected these daily activities to Plaintiff's testimony regarding Plaintiff's ability to understand, remember or apply information, interact with others, concentrate, persist or maintain pace, and adapt or manage himself. (See AR 21-22, 24.) By providing a detailed explanation of Plaintiff's relevant symptom testimony, activities that undermine that testimony, and the functional mental limitations that are reasonably supported, the ALJ provided a specific, clear, and convincing reason for rejecting Plaintiff's testimony to the extent it exceeds the limitations the ALJ found applicable. See, e.g., Flax v. Kijakazi, No. 2:22-CV-01113 AC, 2023 WL 6049922, at *5 (E.D. Cal. Sept. 15, 2023) (affirming the ALJ's finding that the plaintiff's allegations of disabling mental limitations were inconsistent with her ability to “travel internationally to Mexico; navigate public transportation independently; pay bills, count change, use a checkbook and/or money orders; shop in stores; maintain her personal care; prepare meals; clean; do laundry; and interact with medical personnel in person, by telephone, and in writing”); Michelle M.G. v. Kijakazi, No. 5:20-CV-01947-JC, 2022 WL 2189449, at *6 (C.D. Cal. Mar. 4, 2022) (“Here, the ALJ reasonably found that alleged difficulties with anxiety, concentration, and other mental limitations were undermined, to some degree, by her ability to engage independently in a variety of activities, such as household chores, grocery shopping, and reading books.”) The fact that the ALJ provided analysis both in the two-step symptom testimony section and in the prior Paragraph B criteria section, which he incorporated by reference, does not constitute error. See Lewis v. Apfel, 236 F.3d 503, 513 (9th Cir. 2001) (holding an ALJ must “discuss and evaluate the evidence that supports his or her conclusion,” but the law “does not specify that the ALJ must do so under the heading ‘Findings'”); Kaufmann v. Kijakazi, 32 F.4th 843, 851 (9th Cir. 2022) (“We agree with the Commissioner and the court that, in its original decision, the court clearly erred by overlooking the ALJ's full explanation. Looking to the entire record, substantial evidence supports the ALJ's conclusion that Claimant's testimony about the extent of her limitations conflicted with the evidence of her daily activities, such as sewing, crocheting, and vacationing, and supports the ALJ's finding that Claimant's testimony was not fully credible.”); see also Rodriguez v. O'Malley, No. 23-15606, 2024 WL 1714267, at *1 (9th Cir. Apr. 22, 2024) (holding the ALJ adequately rejected the plaintiff's testimony about the severity of her symptoms when, “[t]hroughout his Paragraph B analysis, the ALJ listed each disability factor, identified Rodriguez's relevant symptom testimony, and then described record evidence supporting and undermining her testimony before determining her functional limitations”).
Further, Plaintiff argues that Orn “requires that the activities of daily living meet the threshold for transferable work skills.” (ECF No. 10-1 at 20.) However, Orn provides two distinct ways a claimant's activities discredit his symptom testimony: (1) when the claimant's activities contradict his symptom testimony, and (2) when his activities demonstrate the claimant “is able to spend a substantial part of his day engaged in pursuits involving the performance of physical functions that are transferable to a work setting.” Orn, 495 F.3d at 639 (“Neither of the two grounds for using daily activities to form the basis of an adverse credibility determination are present in Orn's case. First, as he described them, Orn's activities do not contradict his other testimony. Second, Orn's activities do not meet the threshold for transferable work skills, the second ground for using daily activities in credibility determinations.”) (citing Fair, 885 F.2d at 603) (emphasis added). In the instant case, the ALJ set forth Plaintiff's specific testimony regarding mental symptoms, as well as activities that contradict the severity of the symptoms alleged by Plaintiff, and then provided specific, related functional limitations consistent with the record evidence and the credible symptom testimony. For example, in determining Plaintiff had a moderate limitation in interacting with others, the ALJ explained:
[Plaintiff] alleges that he rarely socialized and that he became more anxious, depressed, or stressed when he was in public places or around other people (Ex. 3E; Hearing Record). Nevertheless, he spent time with friends, and he engaged in activities that entailed contact with others, such as shopping, regularly dining at restaurants, going to the casino, going to the gym twice a week, running with people from his gym, and teaching a martial arts class (Ex. 2F/177, 518, 545, 561, 572). In office visits, he exhibited an anxious or depressed mood at times, but he was alert, oriented, friendly, engaged, and cooperative, with fluent speech and appropriate behavior (Ex. 2F/419, 423, 456, 465, 482, 496, 512-513, 518).(AR 21.) Although a number of activities Plaintiff engages in are largely independent, allow Plaintiff to leave at will, or require only superficial interaction with others, Plaintiff's ability to attend a public gym twice weekly (see AR 62, 67-68) and especially teach martial arts classes three times a week at the gym (see AR 842, 1823 (duplicate), 868, 1429 (duplicate), 1849 (duplicate), 898, 1879 (duplicate)) undermine allegations that Plaintiff's ability to interact with others needs to be more limited than a no more than frequent basis. See Sarah E. v. Comm'r of Soc. Sec., No. C22-5121-MAT, 2022 WL 4315684, at *7 (W.D. Wash. Sept. 19, 2022), aff'd sub nom. Eichenberger v. Kijakazi, No. 22-35937, 2023 WL 5928483 (9th Cir. Sept. 12, 2023) (affirming the ALJ's finding that the ability to shop in stores, talk with others online, go to church weekly, and perform volunteer work for friends were inconsistent with the plaintiff's allegations about severe limitations in interacting with others); Stringer v. Comm'r of Soc. Sec. Admin., No. CV-22-00387-TUC-JCH, 2024 WL 1340717, at *5 (D. Ariz. Mar. 28, 2024) (affirming the ALJ's finding that engaging in work and volunteering activities, interacting with friends and neighbors, going to church, and going shopping discredited the plaintiff's allegations that she was “unable to tolerate being around people”).
In addition, the ALJ noted that “the claimant's ability to drive for extended durations, such as the six[-]hour trip from his residence to Fresno to meet his friends and significant other, the ability to work out at a gym, and the ability to teach martial arts classes all demonstrate the ability to initiate and complete tasks consistent with a level of performing work.” (AR 24.) Here again, the ALJ expressly addressed the activities Plaintiff engages in that are inconsistent with the testimony provided and concluded Plaintiff's symptom testimony is not credible to the extent it exceeds a moderate limitation in concentration, persistence, or pace.
It is a rational interpretation of the evidence of Plaintiff's activities of daily living that he would be able to follow simple, repetitive instructions in the workplace and be able to work in an environment where he was limited to no more than frequent contact with others, and that Plaintiff's assertions of greater mental limitations than that lack credibility. “Where evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.” Burch, 400 F.3d at 679.
Accordingly, Plaintiff's alleged activities are a specific, clear, and convincing reason supported by substantial evidence sufficient to discount Plaintiff's subjective symptom testimony regarding his mental limitations.
c. Medical Record
Finally, the ALJ supported his credibility determination by noting that medical evidence does not establish that Plaintiff's mental impairments “kept him from thinking rationally or interacting appropriately.” (AR 23.) For example, Plaintiff did not “lack[] all tolerance for social interactions or public places.” (AR 23.) Further, Plaintiff presented at mental-health encounters as “alert, fully oriented, friendly, and cooperative, with normal speech and behavior,” “good eye contact,” “normal intelligence and fair to good insight and judgment,” and thought processes that “were logical and goal-directed.” (AR 24.) “No healthcare provider documented observations of distractibility or deficient memory.” (AR 24.) Finally, Plaintiff did not require in-patient treatment and has no history of psychiatric hospitalization. (AR 24.)
An ALJ may consider inconsistencies between a claimant's subjective symptom testimony and the medical evidence when making a credibility determination. See Smartt v. Kijakazi, 53 F.4th 489, 498 (9th Cir. 2022) (“When objective medical evidence in the record is inconsistent with the claimant's subjective testimony, the ALJ may indeed weigh it as undercutting such testimony.”); Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with the medical record is a sufficient basis for rejecting the claimant's subjective testimony.”); 20 C.F.R. § 404.1529(c)(4) (in assessing symptom testimony, ALJs will consider “inconsistencies in the evidence and the extent to which there are any conflicts between [the claimant's] statements and the rest of the evidence”). However, “[o]nce the claimant produces medical evidence of an underlying impairment, the [ALJ] may not discredit the claimant's testimony as to the severity of symptoms merely because they are unsupported by objective medical evidence.” Reddick, 157 F.3d at 722.
Here, after a review of the record in this case, the Court finds that inconsistency with the medical records is a clear and convincing reason supported by substantial evidence for discounting the severity of Plaintiff's mental symptom testimony.
Considering Plaintiff's allegations regarding socializing and his tendency to isolate, the ALJ noted that Plaintiff does not “lack[] all tolerance for social interactions or public places.” (AR 24.) The ALJ supported this finding by citing Plaintiff's appropriate presentation at health care encounters, including that Plaintiff was “alert, oriented, friendly, engaged, and cooperative, with fluent speech and appropriate behavior.” (AR 21, 24.) The record demonstrates that, despite expressing feelings of depression and anxiety and sometimes displaying an incongruous affect, Plaintiff consistently was observed to be alert, cooperative, friendly, engaged, calm, adequately dressed and groomed, displaying good eye contact, and demonstrating coherent, logical thought processes. (See, e.g., 553-54, 577, 581, 593, 600, 615, 623, 670, 672, 676, 679, 685, 687, 693-94, 697, 710, 713, 72122, 723, 727, 736, 744, 747, 752-53, 757, 763, 764, 773, 785, 794, 818, 825, 833, 839, 860, 864-65, 877, 886, 899, 905, 914, 924, 933, 953, 967, 987, 993, 997, 1015, 1032, 1036, 1040, 1042, 1055, 1069, 1072, 1075, 1076, 1091-92, 1093, 1097, 1100, 1105, 1111, 1127, 1144, 1146, 1147, 1158, 1170, 1209, 1534-35, 1558, 1574, 1581, 1596, 1651, 1653, 1657, 1660, 1666, 1668, 1691, 1704, 1725, 1728, 1738, 1745, 1754, 1766, 1775, 1799, 1806, 1814, 1820, 1841, 1846-47, 1858, 1867, 1880, 1886, 1895, 1905, 1914, 1934, 1948, 1968, 1974, 1978, 1996, 2013, 2017, 2021, 2023, 2036, 2050, 2054, 2056, 2057, 2072-73, 2074, 2078, 2081, 2086, 2092, 2108, 2125, 2127, 2128, 2139, 2151, 2190.) As such, substantial evidence supports the ALJ's finding that Plaintiff's allegations regarding social limitations are inconsistent with the record to the extent Plaintiff alleges his tolerance for social interactions is more limited than a no more than frequent basis. See Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (holding that a health care provider's report that the plaintiff “was alert and oriented, maintained good eye contact, did not appear excessively anxious, spoke coherently and fluently, smiled appropriately, and was congenial” was a specific, clear, and convincing reason sufficient to discredit the plaintiff's symptom testimony); Gopher v. Comm'r of Soc. Sec., 281 F.Supp.3d 1102, 1120 (E.D. Wash. 2017); Francine F. v. Kijakazi, No. 5:20-CV-00608-PD, 2021 WL 8442062, at *8 (C.D. Cal. Sept. 2, 2021) (“The ALJ also properly discounted Plaintiff's subjective symptom testimony regarding her mental impairments, including the effects of her depression, based upon examinations which revealed intact memory, appropriate eye contact, no delusions, no hallucinations, adequate attention, adequate memory insight and judgment, with adequate concentration except one mention of moderate impairment.”).
The ALJ's assertion that “[n]o healthcare provider documented observations of distractibility or deficient memory” is incorrect. (AR 24.) As identified by Plaintiff (see ECF No. 10-1 at 21), Dr. Farrow notes in multiple encounters that Plaintiff failed to remember prior discussions, strategies, and rationales. (See AR 875 (“Veteran states he did not remember the rationale for this decision we made previously.”), 1856 (duplicate), 898 (“We then reviewed level of responsibility handout (Veteran did not remember this discussion).”), 1879 (duplicate), 1013 (“Veteran was unable to summarize rationale for treatment, stating that he did not remember what he had read/listened to.”), 1994 (duplicate).) However, as noted by the ALJ, in many health care encounters the provider did not suspect deficits based on informal observation. (See AR 713, 723, 727, 753, 767, 771, 783-84, 789.) Further, the ALJ correctly noted that “[t]he medical evidence does not indicate that any doctor noted obvious or persistent problems with distractibility” (AR 22.) As such, Plaintiff's symptom testimony alleging more than a moderate limitation in concentration, persistence, and pace is inconsistent with the record. Moreover, the ALJ reasonably translated this limitation into the functional restriction of simple, repetitive tasks and any assertion that Plaintiff is unable to follow simple, repetitive instructions is inconsistent with the medical record. See Bennett v. Colvin, 202 F.Supp.3d 1119, 1127 (N.D. Cal. 2016) (“In short, there is significant medical evidence to support a finding limiting Plaintiff to ‘light work' and ‘unskilled' labor and the ALJ did not err in translating his finding of a mild to moderate limitation in concentration, persistence, and pace into a restriction to light work and simple, repetitive tasks.”); see also Turner v. Berryhill, 705 Fed. App'x 495, 498 (9th Cir. 2017) (“An RFC determination limiting a claimant to ‘simple, repetitive tasks' adequately captures limitations in concentration, persistence, or pace where the determination is consistent with the restrictions identified in the medical evidence.”).
Because the ALJ reasonably determined that the objective evidence, including mental status examinations by various health care providers, did not support the level of symptoms and mental limitations alleged by Plaintiff, and because this is not the sole basis for the ALJ's credibility assessment, inconsistency with the medical record is a specific, clear, and convincing reason supported by substantial evidence for discounting Plaintiff's symptom testimony to the extent it exceeds the limitations assessed by the ALJ. See Burch, 400 F.3d at 681 (“Although lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider.”).
d. Plaintiff's Argument Regarding Boilerplate Language
Plaintiff likens the ALJ's decision in this case to that reviewed by the Ninth Circuit in Lambert. (ECF No. 10-1 at 11-15.) Specifically, Plaintiff points to the ALJ's language that “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,” describing it as “almost the exact same conclusory boilerplate as the one used in Lambert.” (Id. at 14.) However, in Lambert, the Ninth Circuit noted that the ALJ provided that “‘boilerplate statement' by way of ‘introductory remark,'” then only included “four high-level reasons” that the Ninth Circuit described as “non-specific conclusions that Lambert's testimony was inconsistent with her medical treatment.” Lambert, 980 F.3d at 1277. In the instant case, the ALJ included the common introductory sentence for discrediting symptom testimony, as noted by Plaintiff, but the ALJ also provided specific activities and objective medical evidence that discredit specific portions of Plaintiff's testimony regarding specific mental limitations, as discussed in detail supra Section V.B.4. As such, the ALJ's analysis is clearly distinguishable from the insufficient reasoning analyzed in Lambert.
e. Recommendation
Overall, the Court finds that two of the bases for the ALJ's credibility determinations are supported by substantial evidence in the record. Any error with respect to the remaining basis articulated by the ALJ is therefore harmless. See Carmickle, 533 F.3d at 1162 (“So long as there remains substantial evidence supporting the ALJ's conclusions on credibility and the error does not negate the validity of the ALJ's ultimate credibility conclusion, such is deemed harmless and does not warrant reversal.”) (cleaned up); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (finding that although the ALJ erred in relying on one of several reasons in support of an adverse credibility determination, such error did not affect the ALJ's decision, and therefore was harmless, because the ALJ's remaining reasoning and ultimate credibility determination were adequately supported by substantial evidence in the record).
Plaintiff testified that he cannot work due to struggles with socializing, concentration, understanding, and remembering, all of which derive from Plaintiff's depression, anxiety, and PTSD. However, as pointed out by the ALJ, certain of Plaintiff's daily activities and a review of the objective medical record indicate he can complete simple, repetitive tasks with no more than frequent interaction with coworkers, the general public, and supervisors, and belie the alleged severity of Plaintiff's symptom testimony. As such, the ALJ provided specific, clear, and convincing reasons for discounting Plaintiff's subjective symptom testimony as it relates to his mental limitations.
Accordingly, IT IS RECOMMENDED that District Judge Benitez find that the ALJ did not err in evaluating the credibility of Plaintiff's symptom testimony regarding his mental limitations.
5. Analysis of ALJ's Reasons for Rejecting Symptom Testimony Regarding Plaintiff's Physical Limitations
At step two, the ALJ summarized objective medical evidence regarding Plaintiff's psoriatic joint pain (AR 18), shoulder pain (AR 19), finger swelling and pain (19-20), knee pain (AR 20), and low back pain (AR 20), all of which the ALJ found non-severe (AR 18). The ALJ additionally found that rheumatoid arthritis and fibromyalgia were not definitively diagnosed and therefore were not medically determinable. (AR 20.) At step four, the ALJ commenced the two-step analysis of Plaintiff's symptom testimony by stating that “[t]he claimant alleges disability due to PTSD, depression, anxiety, fibromyalgia, and inflammatory arthritis.” (AR 23.) Later in the decision, the ALJ addressed Plaintiff's physical impairments in the context of the persuasiveness of the VA's one hundred percent service-connected disability rating for arthritis, migraines, depressive disorder, flat foot and foot pain, asthma, and tinnitus:
At step two of the sequential evaluation, the ALJ determines which of the claimant's alleged impairments are “severe” within the meaning of 20 C.F.R. § 404.1520(c) and meet the 12-month durational requirement of 20 C.F.R. § 404.1509. See 20 C.F.R. § 404.1520(a)(4)(ii). A severe impairment, or combination of impairments, is one that “significantly limits” the claimant's “physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c); see also 20 C.F.R. § 404.1522(b)(1) (explaining that basic work activities are “the abilities and aptitudes necessary to do most jobs,” including “[p]hysical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling”). In determining severity, the ALJ “must consider the combined effect of all of the claimant's impairments on her ability to function,” and “is required to consider the claimant's subjective symptoms, such as pain or fatigue.” Smolen, 80 F.3d at 1290.
The ALJ noted correctly that Plaintiff has not been diagnosed with rheumatoid arthritis. (AR 20.) On the other hand, psoriatic arthritis, which the ALJ refers to as “psoriatic joint pain” in his step two analysis, appears as an active problem throughout Plaintiff's medical records. (See, e.g., AR 472, 481, 490, 509, 520 (before insured period); AR 702, 717, 756, 806, 837, 894, 901, 919, 935, 963, 1002, 1024 (during insured period); AR 558, 584, 627, 633 (after insured period).) Plaintiff has been followed and treated by a rheumatology clinic for psoriatic arthritis before, during, and after the insured period. (See, e.g., AR 526 (before); AR 741, 857-62 (during); AR 557, 633 (after).) As a part of his treatment plan, Plaintiff was prescribed adalimumab and received steroid injections for psoriatic arthritis. (See, e.g., AR 737, 1718 (duplicate), 1254, 1259, 1271, 1274-75.)
Specifically, the evidence establishes that the claimant's joint pain has been mild since the alleged onset date. During the relevant period, it did not compromise his strength or range of motion, and it did not prevent him from working out at the gym multiple times a week or from becoming a martial arts instructor (Ex. 2F/473, 545, 1850). X-rays of the claimant's spine, hands, and feet taken during the relevant period all were negative for significant degenerative changes (Ex. 2F/117-120, 200). The claimant's migraines were not intractable and were managed with a triptan on an as-needed basis (Ex. 2F/280, 426, 485). There is no evidence of functional limitations associated with the claimant's mildly flat feet and bunion. There is no evidence of functional limitations associated with his tinnitus; he did not wear hearing aids, and he did not exhibit communicative deficits (Ex. 2F/749, 1553, 1758).(AR 25.) However, this abbreviated analysis alone does not adequately address Plaintiff's physical symptom testimony. (See, e.g., 23-25.)
To discount a plaintiff's symptom testimony, “the ALJ must engage in [the] two-step analysis.” Ferguson, 95 F.4th at 1199; see also 20 C.F.R. § 404.1529 (“In determining whether you are disabled, we consider all your symptoms, including pain, and the extent to which your symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence. We will consider all of your statements about your symptoms, such as pain, and any description your medical sources or nonmedical sources may provide about how the symptoms affect your activities of daily living and your ability to work.”); Soc. Sec. Rul. 16-3p Titles II and XVI: Evaluation of Symptoms in Disability Claims, SSR 16-3P, 2017 WL 5180304, at *2 (Oct. 25, 2017) (“[I]f an individual alleges impairment-related symptoms, we must evaluate those symptoms using a two-step process set forth in our regulations.”).
“Social Security Rulings [] do not carry the ‘force of law,' but they are binding on ALJs nonetheless. They reflect the official interpretation of the [Agency] and are entitled to some deference as long as they are consistent with the Social Security Act and regulations.” Diedrich v. Berryhill, 874 F.3d 634, 638 (9th Cir. 2017).
At the first step of the credibility determination, the non-severe physical impairments identified by the ALJ could reasonably be expected to produce the pain and other physical symptoms alleged by Plaintiff. See Garrison, 759 F.3d at 1014. For example, at the administrative hearing, Plaintiff alleged that due to his arthritis-related pain, he is unable to lift more than small items consistently for half of an eight-hour workday and he requires a ten-minute break after standing or sitting for 30 minutes. (AR 63-64, 69.) In the function report, Plaintiff stated that “[a]ll physical labor is painful,” he requires a 15-minute break after walking 15 minutes, and his conditions affect his ability to lift, squat, bend, stand, reach, grip, type, walk, run, sit, kneel, and stair-climb. (AR 226, 231.) Further, at the administrative hearing, Plaintiff alleged that he suffers from weekly migraines, lasting a couple hours to a day, during which he cannot hold a basic conversation or remain sitting or standing in a work environment. (AR 70-71.)
In spite of this, the ALJ barely addressed these physical limitations. About the psoriasis and psoriatic joint pain, the ALJ said only:
It has been stable on medication since at least May 2017, at which time the claimant told his doctor that his psoriasis “remain[ed] about 90% clear and he only [had] mild joint pains at times.” He reported that he was “happy with treatment” (Ex. 2F/1912-1913). A similar report was given in October 2019 (Ex. 2F/418). There is no evidence that the claimant's symptoms significantly worsened before the date last insured in March 2020. As of November 2021, long after the date last insured, this impairment remained well controlled (Ex. 2F/336).(AR 18), and:
Specifically, the evidence establishes that the claimant's joint pain has been mild since the alleged onset date. During the relevant period, it did not compromise his strength or range of motion, and it did not prevent him from working out at the gym multiple times a week or from becoming a martial arts instructor (Ex. 2F/473, 545, 1850). X-rays of the claimant's spine, hands, and feet taken during the relevant period all were negative for significant degenerative changes (Ex. 2F/117-120, 200). The claimant's migraines were not intractable and were managed with a triptan on an as-needed basis (Ex. 2F/280, 426, 485).(AR 25.) With respect to migraines, the ALJ stated:
They are not intractable. They are treated with zolmitriptan on an as-needed basis (Ex. 2F/280, 485). The claimant typically denied having headaches in medical visits during the relevant period (Ex. 2F/426, 630, 838, 1333).(AR 19; see also AR 25.)
Unlike with the ALJ's treatment of Plaintiff's mental limitations, with respect to the physical limitations, the ALJ neither adequately identified the testimony he found not credible, nor linked that testimony to the particular parts of the record supporting his noncredibility determination. See Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015). Further, the ALJ's references to the record (although arguably supporting the discounting of some of Plaintiff's symptom testimony), do not provide insight into why the ALJ determined that there were no physical limitations on Plaintiff's ability to work, such that he found Plaintiff had the ability to perform work at all exertional levels with no exertional limitations.
Further, the VE's testimony calls into question whether physical symptoms such as Plaintiff describes related to his migraines and arthritis would preclude work. When asked if someone within the ALJ's hypothetical would be able to stop work once a week for up to two hours to deal with a migraine, the VE stated, “[T]hat would preclude competitive employment.” (AR 78.) Regarding Plaintiff's alleged need to change positions every 30 minutes to alleviate pain, the VE testified that the “frequency of sit[ting]/stand[ing] . . . really begins to impact . . . the time off task,” and that “once [Plaintiff] hit[s] that 10% level [of off task behavior], I think [he is] going to be precluded from competitive employment.” (AR 79.)
By failing to adequately address Plaintiff's physical symptom testimony, the ALJ “falls short of meeting [his] responsibly to provide . . . ‘the reason or reasons upon which' [his] adverse determination is based,” such that the Court cannot “meaningfully determine whether the ALJ's conclusions were supported by substantial evidence.” See BrownHunter, 806 F.3d at 495 (quoting Treichler, 775 F.3d at 1103); see also Modesta L. v. Kijakazi, No. 23-CV-420-KSC, 2023 WL 6939219, at *2 (S.D. Cal. Oct. 20, 2023) (“The Court concludes the ALJ erred by failing to account for each item of [the] plaintiff's subjective symptom testimony.”).
The ALJ's handling of Plaintiff's psoriatic arthritis additionally raises concerns about selective reliance on evidence supportive of the ALJ's conclusion, while ignoring other probative evidence, a point raised by Plaintiff. (ECF No. 10-1 at 20-21 (arguing that the ALJ cherry-picked evidence by ignoring evidence that supports Plaintiff's claim for disability, such as, inter alia, Plaintiff's “issues with significant joint pain even when medication cleared up 90% of psoriasis”).) As the Court finds the ALJ failed to adequately assess the credibility of Plaintiff's pain and physical symptom testimony, on remand, the ALJ is encouraged to more fully address the record as it relates to psoriatic arthritis.
Accordingly, IT IS RECOMMENDED that District Judge Benitez find that the ALJ erred by inadequately addressing Plaintiff's testimony regarding physical symptoms.
C. Plaintiff's Allegations of “Cherry Picking”
Plaintiff alleges that the ALJ “consistently ignores evidence supporting [Plaintiff's] claim for disability,” including notes indicating suicidal ideation, supporting anxiety and Plaintiff's “compulsion to isolate himself in his home,” failure to complete homework tasks from therapy, and significant joint pain. (ECF No. 10-1 at 20-21.) Regarding Plaintiff's suicidal ideation, Plaintiff points to a March 14, 2019 psychiatric note that identifies Plaintiff as having chronic suicidal ideation, being deemed a “moderate/ambivalent risk” based on a November 30, 2018 comprehensive suicide risk assessment (“CSRA”), but having no current, explicit suicidal ideation. (Id. at 21.)
The Court addresses these allegations as they pertain to Plaintiff's failure to complete therapy homework supra Section V.B.4.c, and as they pertain to Plaintiff's joint pain supra note 8.
Although an ALJ “need not discuss all evidence presented,” he “must explain why significant probative evidence has been rejected.” Kilpatrick v. Kijakazi, 35 F.4th 1187, 1193 (9th Cir. 2022) (quoting Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)) (emphasis in original); see also Holohan, 246 F.3d at 1207 (holding the ALJ's decision was not supported by substantial evidence where the ALJ “selectively relied on some entries in [the plaintiff's] records . . . and ignored the many others that indicated continued, severe impairment”).
Here, regarding Plaintiff's suicidal ideation, Plaintiff was assessed once throughout the record as a moderate/ambivalent suicide risk due to active thoughts of suicide around Thanksgiving 2018 that Plaintiff reported had decreased soon thereafter. (AR 978-80, 984, 1959-61 (duplicate).) However, according to all other CSRAs included in the record, Plaintiff was assessed as low risk, including in May 2017 (AR 1204-05, 2185-86 (duplicate)), April 2018 (AR 1079-80, 2060-61 (duplicate)), and July 2018 (AR 1056-58, 2037-39 (duplicate)). Plaintiff repeatedly denied suicidal ideation, plan, means, or intent. (See AR 1150, 1176, 1208, 1212, 1219, 1234, 2131 (duplicate), 2157 (duplicate), 2189 (duplicate), 2200 (duplicate), 2215 (duplicate) (before insured period); AR 697, 802, 888, 890, 1049, 1083, 1118, 1678, 1783, 1870-71 (duplicate), 2031 (duplicate), 2064 (duplicate), 2099 (duplicate) (during insured period); AR 581, 1562 (after insured period). But see AR 959 (denying plan, means, or intent, despite “transient thoughts” of suicide), 1022 (denying plan, means, or intent, despite “chronic suicidal ideation”), 1064 (same).) Further, the entire record reflects no history of suicide attempts, self-harm, or hospitalizations. (AR 579, 621, 695, 799, 800, 888, 957, 1020, 1047-48, 1080-82, 111617, 1148-49, 1174, 1205, 1206, 1560, 1602, 1676, 1780-81, 1869 (duplicate), 1938 (duplicate), 2039 (duplicate), 2061-62 (duplicate), 2186-87 (duplicate).) The ALJ similarly noted that Plaintiff described “suicidal thoughts with no plan” (AR 23) but “did not require inpatient treatment during the relevant period . . . [and] has no history of psychiatric hospitalization” (AR 24.) Based on a review of the entire record, it is not clear that the ALJ selectively ignored probative evidence as asserted by Plaintiff, as opposed to setting forth a different, and supportable, interpretation of the evidence. See Burch, 400 F.3d at 679.
Regarding Plaintiff's anxiety and tendency to socially isolate, Plaintiff cites a single psychiatric note which references that Plaintiff downloaded and later deleted a dating app, “stating that he does not know how to interact with women through this medium,” and in which it is noted that Dr. Farrow suggested engaging in activities that “include discomfort and may not have a purpose be[yond] exposure itself (e.g., walking around a mall as exposure to crowds, not because of need to shop),” which Plaintiff expressed would “make him frustrated.” (AR 1966.) Plaintiff does not explain, nor can the Court determine, how this record constitutes significant probative evidence ignored by the ALJ. Further, as discussed supra Section V.B.4, the ALJ detailed Plaintiff's allegations regarding anxiety and socialization and adequately discredited the testimony to the extent that it exceeds a moderate limitation in interacting with others by analyzing the inconsistency of Plaintiff's allegations with his reported activities and objective medical evidence. As such, the ALJ did not selectively rely on records that support his conclusion of nondisability while ignoring probative records to the contrary.
Accordingly, IT IS RECOMMENDED that District Judge Benitez find that the ALJ did not impermissibly “cherry pick” evidence with regard to Plaintiff suicidal ideation, anxiety, or difficulty socializing.
D. Remand Is Appropriate.
Plaintiff requests that this case be remanded to the Commissioner for further proceedings. (ECF Nos. 10-1 at 22; 13 at 11-12.) The Commissioner asks that the Court affirm the ALJ's decision and does not argue any alleged errors committed by the ALJ are harmless. (See generally ECF No. 12.) The law is well established that the decision of whether to remand for further proceedings or simply to award benefits is within the discretion of the Court. See, e.g., Salvador v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990); McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981). Remand is warranted where additional administrative proceedings could remedy defects in the decision. See, e.g., Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984); Lewin, 654 F.2d at 635. Remand for the payment of benefits is appropriate where no useful purpose would be served by further administrative proceedings, Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); where the record has been fully developed, Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); or where remand would unnecessarily delay the receipt of benefits, Bilby v. Schweiker, 762 F.2d 716, 719 (9th Cir. 1985). Here, the Court finds that this is not an instance where no useful purpose would be served by further administrative proceedings; rather, additional administrative proceedings could remedy the defects in the ALJ's decision. As such, IT IS RECOMMENDED that District Judge Benitez remand the matter for further proceedings.
VI. CONCLUSION AND RECOMMENDATION
For the reasons set forth above, the Court RECOMMENDS that Plaintiff's merits brief be GRANTED, and that judgment be entered reversing the decision of the Commissioner and remanding this matter for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
Any party having objections to the Court's proposed findings and recommendations shall file specific written objections within 14 days after being served with a copy of this Report and Recommendation. See Fed.R.Civ.P. 72(b)(2). The objections should be captioned “Objections to Report and Recommendation.” A party may respond to the other party's objections within 14 days after being served with a copy of the objections. See id.
IT IS SO ORDERED.