Opinion
2:23-cv-00429-YY
04-23-2024
DANIELLE B.,[1] Plaintiff, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You, United States Magistrate Judge
FINDINGS
Plaintiff Danielle B. seeks judicial review of the Social Security Commissioner (“Commissioner”)'s final decision denying her application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act (“SSA”). 42 U.S.C. §§ 401-33. This court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3). For the reasons set forth below, the Commissioner's decision should be REVERSED and REMANDED for further proceedings.
PROCEDURAL HISTORY
Plaintiff filed an application for SSI on February 25, 2020, alleging a disability onset date of May 1, 2018. Tr. 14, 16, 199-214. The Commissioner denied plaintiff's claim initially and on reconsideration. Tr. 110-13, 117-19. Plaintiff filed a written request for a hearing, and a hearing was held before Administrative Law Judge Steward Stallings on December 9, 2021. Tr. 35-72. The ALJ issued a decision finding Plaintiff not disabled within the meaning of the Act. Tr. 1132. The Appeals Council denied Plaintiff's request for review on January 23, 2023. Tr. 1-6. Thus, the ALJ's decision is the Commissioner's final decision and subject to review by this court. 42 U.S.C. § 405(g); 20 C.F.R. § 422.210.
STANDARD OF REVIEW
The reviewing court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Substantial evidence is “more than a mere scintilla,” and means only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Biestek v. Berryhill, 139 S.Ct. 1148, 1150 (2019) (internal quotation marks omitted). This court must weigh the evidence that supports and detracts from the ALJ's conclusion and “ ‘may not affirm simply by isolating a specific quantum of supporting evidence.' ” Garrison v. Colvin, 759 F.3d 995, 1009-10 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). This court may not substitute its judgment for that of the Commissioner when the evidence can reasonably support either affirming or reversing the decision. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Instead, where the evidence is susceptible to more than one rational interpretation, the Commissioner's decision must be upheld if it is “supported by inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citation omitted); see also Lingenfelter, 504 F.3d at 1035.
SEQUENTIAL ANALYSIS AND ALJ FINDINGS
Disability is the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The ALJ engages in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. 20 C.F.R. § 404.1520; Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (discussing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)).
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the application date. Tr. 16. At step two, the ALJ found Plaintiff had the following severe, medically determinable impairments: obesity, cannabis abuse, anxiety, depressive disorder, diabetic neuropathy, a breathing disorder, a headache disorder, right wrist pain status post right carpal tunnel/cubital tunnel/first dorsal compartment surgery, bilateral knee swelling, and blurry vision status post eye surgery. Tr. 16. At step three, the ALJ found no impairment met or equaled the severity of any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 17. The ALJ assessed Plaintiff's residual functional capacity (“RFC”) and found she was able to “perform a limited range of light work as defined in 20 CFR 416.967(b)”:
Specifically, she can lift up to 20 pounds occasionally and lift or carry up to 10 pounds frequently, stand or walk for about six hours per eight-hour workday, and sit for about six hours per eight-hour workday. However, she would need a sitstand option, defined as changing from a standing position to a sitting position or vice versa approximately every 30 minutes for five minutes while remaining at the work station. Alternatively, she would need to sit and stand at-will. The claimant can never climb ladders, ropes, or scaffolds and can only occasionally climb ramps and stairs, stoop, crouch, kneel, and crawl. She is limited to frequent handling and fingering with the dominant right upper extremity. She should avoid exposure to irritants such as fumes, odors, dusts, gases, and poorly ventilated areas, as well as chemicals found in industrial type settings, and she needs a job that would not require driving of a motor vehicle at night. The claimant is limited
to low-stress work, meaning no production pace or conveyor belt type work that is non-worker controlled, and she needs a predictable work environment. She can engage in only occasional routine judgment, defined as being able to make only simple work-related decisions. She can have only occasional and simple workplace changes. In addition, she can only engage in work that requires no more than brief and superficial interaction with the public, coworkers, and supervisors, although interaction with supervisors could be up to occasional when necessary for training.Tr. 19.
At step four, the ALJ determined that Plaintiff has no past relevant work. Tr. 25. At step five, the ALJ determined that transferability of job skills was not material to the determination of disability because Plaintiff had no past relevant work. Tr. 25. The ALJ further found that considering Plaintiff's age, education, work experience, and residual functional capacity, jobs exist in significant numbers in the national economy that Plaintiff can perform, such as office helper, routing clerk, and mail clerk. Tr. 26. The ALJ therefore found Plaintiff was not disabled. Tr. 27.
DISCUSSION
Plaintiff argues that the ALJ erred by (1) failing to adequately address whether her impairments met or equaled Listings 11.02B and 11.02D and Listings 12.04 and 12.06, (2) improperly discounting her symptom testimony, (3) failing to properly evaluate the medical opinion evidence, and (4) relying on vocational expert (“VE”) testimony at step five that was the product of incomplete hypotheticals. Pl. Br. 8, ECF 12.
I. Step Three
Plaintiff contends the ALJ erred by failing to properly assess whether her impairments met certain Listings at step three. Pl. Br. 16-17, ECF 12. Plaintiff bears the burden of proof at step three. Bowen v. Yuckert, 482 U.S. 137, 146, n.5 (1987). A mere diagnosis does not suffice to establish disability. Key v. Heckler, 754 F.2d 1545, 1549-50 (9th Cir. 1985). “‘[An impairment] must also have the findings shown in the Listing of that impairment.'” Id. at 1549-50 (quoting 20 CFR § 404.1525(d); emphasis in Key). To meet a Listing, an impairment “must meet all of the specified medical criteria.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in original). “To equal a listed impairment, a claimant must establish symptoms, signs and laboratory findings ‘at least equal in severity and duration' to the characteristics of a relevant listed impairment[.]” Tackett, 180 F.3d at 1099; see also Sullivan, 493 U.S. at 531(to establish equivalency, claimant “must present medical findings equal in severity to all the criteria” for the listing).
A. Listing 11.02
Primary headache disorder is not specifically addressed in the Listings, but epilepsy (Listing 11.02) is the most closely analogous listed impairment. Social Security Ruling (SSR) 19-4p, available at 2019 WL 416935, at *7. Paragraph B of Listing 11.02 requires documentation of a detailed description of a dyscognitive seizure occurring at least once a week for at least three consecutive months despite adherence to prescribed treatment. Id.; 20 C.F.R. Part 404, Subpart P, Appx 1 § 11.02B. Listing 11.02D requires dyscognitive seizures occurring at least once every two weeks for at least three consecutive months despite adherence to prescribed treatment. To evaluate whether a primary headache disorder is equal in severity and duration to listing 11.02B or D, an ALJ considers the following factors:
A detailed description from an acceptable medical source of a typical headache event, including all associated phenomena (for example, premonitory symptoms, aura, duration, intensity, and accompanying symptoms); the frequency of headache events; adherence to prescribed treatment; side effects of treatment; and limitations in functioning that may be associated the primary headache disorder or effects of its treatment.SSR 19-4p at *7.
An ALJ must evaluate the relevant evidence before concluding that a claimant's impairments do not meet or equal a listed impairment. Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). Here, the ALJ sufficiently considered the frequency and severity of Plaintiff's headaches, and found no medical record established the required frequency of headaches-at least once a week for at least three consecutive months, or at least once every two weeks for at least three consecutive months. Tr. 17 (citing Tr. 422, 522, 788, 809, 857); Listing 11.02B & D. Plaintiff emphasizes the severity of her headaches, but cannot point to medical records that establish this three-consecutive-month requirement. See, e.g., Pl. Reply (noting evidence of migraines in May 2020, July 2020, February 2021, September 2021, and October 2021, but failing to identify a three-month period). Because such evidence is required to meet Listing 11.02B or D, and the ALJ reasonably found there was a lack of such evidence, the ALJ did not err in finding that Plaintiff's impairments did not meet or equal Listing 11.02B or D.
B. Listings 12.04 and 12.06
Plaintiff also argues the ALJ erred in finding her mental impairments did not meet or equal Listings 12.04 for depressive, bipolar, and related disorders or 12.06 for anxiety and obsessive-compulsive disorders. Pl. Br. 17, ECF 12. This step three argument merely rehashes plaintiff's other, unsuccessful arguments about the persuasiveness of the opinion of Elizabeth Coleman, QMHP, discussed below. See, infra, p. 18; Pl.'s Br. 17. The ALJ adequately laid out this reasoning at step three, and substantial evidence supports the decision to find Plaintiff's mental impairments did not meet or equal Listings 12.04 or 12.06. Therefore, there is no reason to disturb the ALJ's step three finding about those listings either.
II. Subjective Symptom Testimony
When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms alleged and the record contains no affirmative evidence of malingering, “the ALJ can reject the claimant's testimony about the severity of ... symptoms only by offering specific, clear and convincing reasons for doing so.” Smolen v.Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (citation omitted). A general assertion that the claimant is not credible is insufficient; the ALJ must “state which ... testimony is not credible and what evidence suggests the complaints are not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be “sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony.” Orteza v.Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted). The ALJ need not “perform a line-by-line exegesis of the claimant's testimony” or “draft dissertations when denying benefits.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). But Ninth Circuit law “plainly requires” that an ALJ do more than “offer[ ] non-specific conclusions that [the claimant's] testimony [is] inconsistent with [certain evidence].” Id. (citations omitted). If the “ALJ's credibility finding is supported by substantial evidence in the record, [the court] may not engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted).
In evaluating a claimant's subjective symptom testimony, an ALJ may consider whether it is consistent with objective medical evidence. 20 C.F.R. §§ 404.1529(c)(1)-(3), 416.929(c)(1)-(3); SSR 16-3p, available at 2017 WL 5180304, at *7-8. The lack of objective medical evidence may not form the sole basis for discounting a claimant's testimony. Tammy S. v. Comm'r Soc. Sec. Admin., No. 6:17-cv-01562-HZ, 2018 WL 5924505, at *4 (D. Or. Nov. 10, 2018) (citing Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“[T]he Commissioner may not discredit [a] claimant's testimony as to the severity of symptoms merely because they are unsupported by objective medical evidence.”)). However, “[w]hen objective medical evidence in the record is inconsistent with the claimant's subjective testimony, the ALJ may indeed weigh it as undercutting such testimony.” Smartt v. Kijakazi, 53 F.4th 489, 498 (9th Cir. 2022) (emphasis in original).
Effective March 28, 2016, the Commissioner superseded Social Security Ruling (“SSR”) 96-7p, governing the assessment of a claimant's “credibility,” and replaced it with SSR 16-3p. See SSR 16-3p, available at 2016 WL 1119029. SSR 16-3p eliminates the reference to “credibility,” clarifies that “subjective symptom evaluation is not an examination of an individual's character,” and requires the ALJ to consider all the evidence in an individual's record when evaluating the intensity and persistence of symptoms. Id. at *1-2. The ALJ must examine “the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Id. at *4
At the hearing, Plaintiff testified about how her bipolar disorder is the primary symptom that keeps her from being able to work. Tr. 47. As a result, Plaintiff shared that she suffers two to three panic attacks per day, causing her to get angry, scared, cry, yell, hit her legs, and “lose focus on what's the situation.” Tr. 48. To manage her symptoms, Plaintiff does “breathing techniques to try to calm myself down or most cases I have to just stay at home end not be around a lot-of people.” Tr. 48. Plaintiff shared that it takes one to two hours to do her breathing exercises and “get back to her day.” Tr. 49. Plaintiff also testified that, three to four times a month, she suffers migraines and vomiting when her anxiety “gets so bad.” Tr. 50. Plaintiff described the migraines as lasting for one to two hours, and she has to stay in a completely dark room to recover. Tr. 51. To cope, Plaintiff testified that she takes CBD and other medications every morning and night, but she is “still working on finding the right medications and balance.” Tr. 52.
Physically, Plaintiff testified that her wrists “were not cooperating” during the jobs she held between 2019 and 2020. Tr. 54. Plaintiff elaborated that she had undergone multiple procedures on her hands/wrists since 2018, with the need to rest her hands for an hour or two after just five to ten minutes of writing or typing. Tr. 54-55. She felt numbness and tingling in her hands when at rest. Tr. 55. After surgery, Plaintiff stopped repetitive activities so as not to aggravate the injuries in her hands/wrists. Tr. 55-56. She further shared she had worse symptoms in her hands/wrists when it was cold outside, Tr. 56, and ongoing swelling in both knees following surgery, with the need to rest and elevate her legs for a about an hour to two hours during the day. Tr. 56-57. She also testified to diabetic neuropathy, with numbness and persistent sores on her feet, further contributing to the need to elevate her legs during the day, Tr. 56-57, cataracts associated with diabetes, giving her blurry vision that was worsening, sensitivity to light, watery eyes, aches/pains, and the inability to drive at night. Tr. 58-59. Additionally, Plaintiff shared she has difficulty focusing at times during the day due to eye pain, resulting in the need to close her eyes, up to an hour and a half per day once or twice a week, Tr. 59, and has had surgery on her eyes, with ongoing recovery. Tr. 60-62. Finally, Plaintiff testified that she suffers deficits in concentration/focus due to her combination of mental and physical impairments, resulting in difficulty following and paying attention to TV shows and conversations. Tr. 63-64.
The ALJ found Plaintiff's medically determinable impairments could reasonably be expected to cause some of the alleged symptoms and did not identify evidence of malingering. Tr. 20. However, the ALJ concluded that Plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with the medical evidence and other evidence in the record. Tr. 20. Specifically, the ALJ found Plaintiff's symptom allegations conflicted with objective medical evidence and Plaintiff's daily activities conflicted with her testimony. Tr. 20-22.
A. Objective Medical Evidence
The ALJ is instructed to evaluate objective evidence in considering a claimant's symptom allegations. 20 C.F.R. § 416.929(c)(2) (“Objective medical evidence ... is a useful indicator to assist us in making reasonable conclusions about the intensity and persistence of your symptoms[.]”). “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.” Smartt v. Kijakazi, 53 F.4th 489, 498 (9th Cir. 2022) (emphasis in original); see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (affirming the ALJ's credibility finding when the plaintiff's testimony of weight fluctuation was inconsistent with the medical record). A claimant's failure to report symptoms to providers is another valid basis to find a claimant's symptom allegations unreliable. Greger v. Barnhart, 464 F.3d 968, 972-73 (9th Cir. 2006). A lack of objective medical evidence is insufficient, by itself, to justify discounting a claimant's testimony. See, e.g., Tammy S. v. Comm'r Soc. Sec. Admin., No. 6:17-cv-01562-HZ, 2018 WL 5924505, at *4 (D. Or. Nov. 10, 2018) (citing Reddick v. Chafer, 157 F.3d 715, 722 (9th Cir. 1998) (“the Commissioner may not discredit [a] claimant's testimony as to the severity of symptoms merely because they are unsupported by objective medical evidence.”). However, when coupled with other permissible reasons, lack of objective medical evidence to support a claimant's allegations may be used to discount a claimant's testimony. Batson, 359 F.3d at 1197-98.
The ALJ reasonably discounted Plaintiff's allegations about physical impairments--swelling in her knees, vision, and wrist pain--as inconsistent with the record. See Smartt, 53 F.4th at 498 (holding conflict with objective medical evidence is a sufficient basis for discounting a claimant's testimony); 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2). At the hearing, Plaintiff testified that she needed to elevate her legs above her heart for about an hour or two at a time, due to swelling in her knees, meaning she would keep her legs elevated about half the day. Tr. 56-57. The ALJ compared Plaintiff's testimony to exam notes showing only a “mild” edema of Plaintiff's left knee, likely treatable with a hinged knee brace, and several other notes showing normal range of motion, and normal/even gait, with no atrophy or abnormal movements. Tr. 20 (citing, inter alia, Tr. 443, 449, 518, 665, 680, 788, 800, 810, 841, 84).
Plaintiff further testified that she had worsening vision that, until a recent eye surgery, affected her ability to drive at night and to focus. Tr. 58-63. The ALJ juxtaposed this testimony with Plaintiff's medical records showing she maintained “good” vision of 20/25 on the left eye and 20/30 on the right. Tr. 22 (citing Tr. 960, 986). The ALJ further reasonably discounted Plaintiff's testimony that she had pain in both wrists and numbness and tingling in both hands that affected her ability to cook, bake, write, and type. Tr. 55-56. To discount this testimony, the ALJ pointed to medical records reflecting Plaintiff's left wrist and hand had normal strength, sensation, and range of motion and her right hand had only decreased strength with tenderness in her right wrist, but normal range of motion. Tr. 20, 405, 824. Thus, ALJ provided a clear and convincing reason, supported by substantial evidence, to reject Plaintiff's subjective symptom testimony in this regard.
When evaluating Plaintiff's testimony about debilitating migraines, however, the ALJ failed to support his decision with substantial evidence. The ALJ noted only that medical records showed Plaintiff's headaches were “not intractable” and that Plaintiff treated migraines with Propranolol. Tr. 20 (citing Tr. 422, 522, 573, 788, 809, 857, 877). The parties disagree about what “not intractable” means, but neither definition suffices to show a conflict between objective medical evidence and Plaintiff's allegations. Even using the Commissioner's proposed definition--that Plaintiff's migraines are not “resistant to usual therapies for migraine,” Def. Br. 4, n.1--the records do not meaningfully undermine Plaintiff's allegations. See, e.g., Tr. 50-51 (testimony about migraines three to four times a month that lasted for one to two hours). The same goes for the medical records reflecting that Plaintiff was prescribed Propranolol. These records only reflect that the medication was prescribed, not that it was effective, and Plaintiff's medical history continues to show she suffered migraines after she began taking Propranolol. See, e.g., Tr. 573. In sum, the records the ALJ cited do not actually conflict with Plaintiff's testimony, and the ALJ therefore failed to support the decision to discount Plaintiff's migraine testimony with substantial evidence.
Plaintiff argues the ALJ did not sufficiently support the decision to discount hand/wrist pain, and eye pain testimony because she believes the medical record more strongly supports her allegations. Pl. Br. at 18-20. The ALJ took note of the records Plaintiff cited, however, and incorporated several relevant limitations into the RFC. See Tr. 19 (providing limitations related to Plaintiff's right wrist, and vision). Ultimately, Plaintiff is asking the court to re-weigh the evidence, and place more emphasis on medical records that support her testimony, which is beyond the scope of review. Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (“We may not reweigh the evidence or substitute our judgment for that of the ALJ.”). Even when there are two reasonable interpretations-the plaintiff's and the ALJ's-the ALJ's interpretation must prevail. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where evidence is susceptible to more than one rational interpretation, it is the [Commissioner's] conclusion that must be upheld.”). Against that backdrop, the ALJ reasonably relied on conflicting medical evidence, and did not err in discounting Plaintiff's testimony about hand/wrist and eye pain.
The ALJ also reasonably discounted Plaintiff's allegations about the frequency and severity of her mental impairments because they conflicted with objective medical evidence. Tr. 21-22. At the hearing, Plaintiff testified that she would suffer two to three panic attacks per day, causing her to get angry, scared, cry, yell, hit her legs, and “lose focus on what's the situation.” Tr. 48. Plaintiff further testified that it took her one to two hours, or sometimes all day, to recover from these attacks. Id. The ALJ contrasted the testimony about the severity of Plaintiff's symptoms with mental health records from the relevant period showing that, although Plaintiff occasionally appeared depressed or anxious, her providers generally observed that she appeared alert, oriented, cooperative, in no acute distress, with normal affect, thought process, mood, behavior, and concentration, as well as memory, insight, and judgment within normal limits. Tr. 21-22 (citing Tr. 468, 519-20, 523, 698, 659).
The ALJ discounted Plaintiff's testimony about the frequency of her attacks with evidence that her anxiety seemed to spike around particular times, such as when she filed for bankruptcy and learned of her husband's upcoming military deployment. Tr. 22-25 (citing Tr. 368, 525, 527, 638, 640). Plaintiff argues the ALJ improperly focused on periods of improvement and ignored the overall picture of her mental health symptoms. Pl. Reply 12-13 (citing Garrison, 759 F.3d at 1017-18). But it was not error for the ALJ to note that the medical record showed Plaintiff might have fewer symptoms than she alleged, and to consider that evidence when deciding how much of Plaintiff's testimony to credit. The ALJ accounted for much of what Plaintiff alleged in a restrictive RFC, limiting Plaintiff to low-stress work with a predictable work environment that required only occasional routine judgment, occasional and simple workplace changes, and brief and superficial interaction with the public, coworkers, and supervisors. Tr. 19. Ultimately, the ALJ reasonably found the record was inconsistent with Plaintiff's allegations of severe mental symptoms and limitations, and substantial evidence supports the ALJ's conclusion.
B. Daily Activities
The ALJ also discounted Plaintiff's subjective symptom testimony because it was inconsistent with her daily activities. Tr. 23. Activities of daily living can form the basis for an ALJ to discount a claimant's testimony in two ways: (1) as evidence a claimant can work if the activities “meet the threshold for transferable work skills,” or (2) where the activities “contradict [a claimant's] testimony.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). The relevant regulations require an ALJ to consider a claimant's daily activities when evaluating subjective symptom statements. 20 C.F.R. §§ 404.1529(c)(3)(i), 416.929(c)(3)(i).
The ALJ reasonably concluded that several of Plaintiff's daily activities conflicted with her testimony. The ALJ contrasted Plaintiff's testimony about her swelling of the lower extremities, numbness and pain in the upper extremities, poor vision, and difficulty with concentration (Tr. 55-56, 58-63) with evidence that Plaintiff went to the gun range with her spouse, cooked and baked, walked and played with dogs, played games and “a lot of cards,” worked on art projects, including a project that appeared to handle glass, and worked as a food service delivery driver and in security at a festival. Tr. 20-21 (citing Tr. 444, 454, 518, 531, 550, 610, 649, 665, 800, 817, 824, 849, 854, 963, 972). These activities suggest a higher level of functioning than Plaintiff alleged. For example, at the hearing Plaintiff testified that her concentration issues made it difficult to follow and pay attention to TV shows and conversations (Tr. 63-64), but the ability to do art projects and play “a lot of cards” reasonably undermines that testimony. Tr. 21. Likewise, regarding Plaintiff's testimony about physical limitations; several of the activities the ALJ cited would seem to be incompatible with disabling hand, wrist, and knee issues. Tr. 21-22. Plaintiff disagrees, again asking the court to put a different weight on the evidence than the ALJ did. Pl. Br. 19. But, as noted above, that is beyond the scope of review. Ahearn, 988 F.3d at 1115. This was another clear and convincing reason for the ALJ to rely upon to discount Plaintiff's testimony about the extent of her physical symptoms.
III. Medical Opinion Evidence
When evaluating medical opinion evidence for claims filed on or after March 27, 2017, ALJs must apply 20 C.F.R. § 404.1520c for Title II claims and 20 C.F.R. § 416.920c for Title XVI claims. Under these regulations, ALJs no longer “weigh” medical opinions, but rather determine which are most “persuasive.” 20 C.F.R. §§ 404.1520c(a)-(b), 416.920c(a)-(b). To that end, controlling weight is no longer given to any medical opinion. Revisions to Rules, 82 Fed.Reg. at 5867-68; see also 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, the Commissioner evaluates the persuasiveness of medical opinions based on (1) supportability, (2) consistency, (3) relationship with the claimant, (4) specialization, and (5) other factors, such as “evidence showing a medical source has familiarity with the other evidence in the claim or an understanding of our disability program's policies and evidentiary requirements.” 20 C.F.R. §§ 404.1520c(a), (c)(1)-(5), 416.920c(a), (c)(1)-(5).
The factors of “supportability” and “consistency” are considered to be “the most important factors” in the evaluation process. 20 C.F.R. §§ 404.1520c(c), 416.920c(c). Supportability means the extent to which a medical source supports the medical opinion by explaining the “relevant . . . objective medical evidence.” Woods v. Kijakazi, 32 F.4th 785, 79192 (9th Cir. 2022) (citing 20 C.F.R. § 404.1520c(c)(1)). Consistency means the extent to which a medical opinion is “consistent . . . with the evidence from other medical sources and nonmedical sources in the claim.” Id. (citing 20 C.F.R § 404.1520c(c)(2)).
An ALJ must articulate how persuasive the ALJ finds the medical opinions and explain how the ALJ considered the supportability and consistency factors. 20 C.F.R. §§ 404.1520c(a), (b), 416.920c(a), (b); see Tyrone W. v. Saul, No. 3:19-CV-01719-IM, 2020 WL 6363839, at *7 (D. Or. Oct. 28, 2020). “The ALJ may but is not required to explain how other factors were considered, as appropriate, including relationship with the claimant (length, purpose, and extent of treatment relationship; frequency of examination); whether there is an examining relationship; specialization; and other factors, such as familiarity with other evidence in the claim file or understanding of the Social Security disability program's policies and evidentiary requirements.” Linda F. v. Comm'r Soc. Sec. Admin., No. C20-5076-MAT, 2020 WL 6544628, at *2 (W.D. Wash. Nov. 6, 2020). However, ALJs are required to explain “how they considered other secondary medical factors [if] they find that two or more medical opinions about the same issue are equally supported and consistent with the record but not identical.” Tyrone W., 2020 WL 6363839, at *6 (citing 20 C.F.R. §§ 404.1520c(b)(2) and 404.1520c(b)(3)).
Furthermore, the court must continue to consider whether the ALJ's decision is supported by substantial evidence. See Revisions to Rules, 82 Fed.Reg. at 5852 (“Courts reviewing claims under our current rules have focused more on whether we sufficiently articulated the weight we gave treating source opinions, rather than on whether substantial evidence supports our final decision.”); see also 42 U.S.C. § 405(g).
A. Dr. Stacy Brueckner, D.O.
On May 29, 2020, Dr. Brueckner completed a treating physician's migraine headache form, noting the following: (1) Plaintiff's migraine headaches begin at her left temple and then spread throughout her whole head; (2) her migraines occur three times per week; (3) she suffers headaches lasting 24-48 hours, with aura, nausea/vomiting, photophobia, phonophobia, and throbbing/pulsating pain; (4) her response to medications has been poor; (5) her migraine headaches would interfere with her ability to work; and (6) on average, Plaintiff would miss more than one day of work per week due to her headaches. (Tr. 470-471). The ALJ found Dr. Brueckner's opinion unpersuasive because it was not supported by Dr. Brueckner's own findings and inconsistent with other medical evidence in the record. Tr. 26.
The ALJ considered the supportability and consistency of Dr. Brueckner's opinion, but failed to support his decision that the doctor's opinion was “not persuasive” with substantial evidence. “[A]n ALJ's decision, including the decision to discredit any medical opinion, must simply be supported by substantial evidence.” Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022). The ALJ rejected Dr. Brueckner's opinion as inconsistent with the overall medical record, as well as Dr. Brueckner's own treatment notes, indicating that Plaintiff's migraines were “responsive” to treatment with Propranolol and had been assessed as “not intractable” and Tr. 22-23 (citing Tr. 421, 522). As described above, however, “not intractable” headaches can still cause significant symptoms (especially where, as here, the Plaintiff is allergic to most typical migraine relief medication). Tr. 521. Dr. Brueckner stated that Plaintiff's headaches last 24-48 hours, which supports Dr. Brueckner's opinion as to Plaintiff's absenteeism. Likewise, there is no evidence in the record that Plaintiff's treatment with Propranolol was a success; if anything, the record shows Plaintiff continued to suffer headaches even after the prescription. See, e.g., Tr. 573. These are the only two bases the ALJ relied upon to discount Dr. Brueckner's opinion. Neither undermines the supportability or consistency of Dr. Brueckner's opinion, and the ALJ erred by rejecting Dr. Brueckner's medical opinion without citing substantial evidence in support of doing so.
B. Elizabeth Coleman, QMHP
On October 21, 2021, treating mental health provider Elizabeth Coleman, QMHP, provided a medical source statement opining the following: (1) Plaintiff is markedly to severely limited in 12 basic work activities; (2) she suffers marked limitations in the paragraph “B” criteria of interact with others, concentrate, persist, or maintain pace, and adapt or manage oneself; (3) she would be off task and unproductive over 30% of a 40-hour workweek; and (4) she would be expected to miss four or more days of work per month. Tr. 949-952.
The ALJ reasonably found that Coleman's opinion about Plaintiff's marked to severe limitations was unpersuasive. The supportability and consistency factors require an ALJ to inquire into “the objective medical evidence and supporting explanations presented by a medical source . . . to support his or her medical opinion,” and whether the opinion aligns with “evidence from other medical sources and nonmedical sources in the claim.” 20 C.F.R. § 416.920c(c)(1-2). As to supportability, the ALJ noted that Coleman's opinion lacked any supporting explanation. Tr. 23. The ALJ further found Coleman's “very limited treatment notes” did not include “contemporaneous objective findings.” Tr. 23 (citing Tr. 638-42). As to consistency, the ALJ found Coleman's opinion conflicted with the record, which showed, at most, moderate mental limitations with interacting with others and concentrating persisting, or maintaining pace. Tr. 23. In fact, many notes in the medical record show Plaintiff having normal mood and affect, and being cooperative, attentive, with good concentration, appropriately dressed or with good grooming and hygiene, and often with age-appropriate or good/intact insight. Tr. 23 (citing Tr. 443, 447, 449, 468, 519-20, 523, 527-28, 531, 548, 643, 652, 659, 665, 680, 734, 737, 863). The ALJ sufficiently addressed the consistency and supportability factors, and supported the decision to discount Coleman's opinion with substantial evidence.
Plaintiff also argues, as she did about symptom testimony, that the ALJ did not consider the waxing and waning nature of her mental health symptoms. Id. Although mental illnesses and symptoms may be variable, courts “will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation,” even if the record shows some waxing and waning of symptoms. Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020). Here, the record mainly shows that Plaintiff had improved symptoms with treatment and demonstrated good mental function throughout the relevant period. Tr. 21 (citing, e.g., Tr. 542 (treatment note describing Plaintiff's mental state as “doing pretty well”), 680 (reporting improved mood with use of medication), 698 (“much better” mood with full affect)); see also Tr. 23 (citing Tr. 443, 447, 449, 468, 519-20, 523, 527-28, 531, 548, 643, 652, 659, 665, 680, 734, 737, 863). As with the ALJ's interpretation of Plaintiff's mental health testimony, there is more than one reasonable way to read the record; accordingly, the court must affirm the ALJ's decision in this regard. Ford, 950 F.3d at 1156.
C. Maria Faaeteete, FNP
On October 20, 2021, treating provider Maria Faaeteete, FNP, signed a form offering the following opinions: (1) Plaintiff suffered from, inter alia, depression, obesity, anxiety, and migraines, with chronic pain and numbness in her joints, feet, finger, and back; (2) she must lie down if her feet/legs are swollen; (3) her physical and mental conditions were reasonably likely to cause pain; (4) her mental conditions prevented her from working, and she would miss multiple days of fulltime work per week; and (5) she would be off task and unproductive 21-30% of the time. (Tr. 1006-1008). Faaeteete's opinion is unusual because Plaintiff filled out the form, and Faaeteete reviewed the form and signed it after it was completed. Pl. Br. 15 (citing Tr. 46-47).
The ALJ sufficiently considered the supportability and consistency of Faaeteete's opinion, and supported the decision to find it unpersuasive with substantial evidence. With respect to supportability, the ALJ found Faaeteete's opinion lacked support because, although Faaeteete signed it, Plaintiff filled out the form herself. Tr. 23. Therefore, the opinion was supported by Plaintiff's subjective commentary rather than objective medical findings or supporting explanation as to Plaintiff's mental functioning. Tr. 23. The ALJ also noted that Faaeteete's treatment notes regarding Plaintiff's mental health was “minimal” as she had mostly treated Plaintiff for physical symptoms. Tr. 23. With respect to consistency, the ALJ found that Faaeteete's opinion was inconsistent with her own treatment notes indicating that Plaintiff's anxiety was well-controlled with medication (Tr. 23 (citing Tr. 863)), and with the longitudinal record demonstrating that Plaintiff's mental functioning required at most moderate limitations. Tr. 23. As discussed above in the sections concerning Coleman and Plaintiff's symptom testimony, the ALJ reasonably relied on conflicts between the record that undermine the limitations suggested in Faaeteete's opinion, and those conflicts amount to substantial evidence in the record.
IV. Step Five
Plaintiff also argues the ALJ erred by failing to include limitations reflected in her testimony and certain medical opinions in the RFC, and by extension, erred by failing to include those limitations into the hypotheticals posed to the VE at step five. Pl. Br. 20-21. As discussed above, the ALJ reasonably discounted several aspects of Plaintiff's testimony, and supported the decision to find Coleman and Faaeteete's opinions unpersuasive. To the extent Plaintiff's step five argument simply retreads that ground, the ALJ did not err in that regard.
Because the ALJ erred in discounting Plaintiff's testimony about her migraines and Dr. Brueckner's opinion, however, and the ALJ should reconsider the RFC and solicit further VE testimony, if necessary, on remand.
V. Remand
Within the court's discretion under 42 U.S.C. § 405(g) is the “decision whether to remand for further proceedings or for an award of benefits.” Holohan, 246 F.3d at 1210. Although a court should generally remand to the agency for additional investigation or explanation, a court has discretion to remand for immediate payment of benefits. Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099-100 (9th Cir. 2014). The issue turns on the utility of further proceedings. A court may not award benefits punitively and must conduct a “credit-as-true” analysis on evidence that has been improperly rejected by the ALJ to determine if a claimant is disabled under the Social Security Act. Strauss v. Comm'r of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
In the Ninth Circuit, the “credit-as-true” doctrine is “settled” and binding on this Court. Garrison v. Colvin, 759 F.3d 995, 999 (9th Cir. 2014). The court first determines whether the ALJ made a legal error and then reviews the record as a whole to determine whether the record is fully developed, the record is free from conflicts and ambiguities, and there is any useful purpose in further proceedings. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015). Only if the record has been fully developed and there are no outstanding issues left to be resolved does the court consider whether the ALJ would be required to find the claimant disabled on remand if the improperly discredited evidence were credited as true. Id. If so, the court can exercise its discretion to remand for an award of benefits. Id. The court retains flexibility, however, and is not required to credit statements as true merely because the ALJ made a legal error. Id. at 408.
Here, the ALJ committed harmful error by failing to provide specific, clear, and convincing reasons to reject Plaintiff's subjective symptom testimony about her migraines and by failing to support the decision to find Dr. Brueckner's opinion unpersuasive with substantial evidence. After reviewing the record, however, conflicts and ambiguities remain between the medical record and Plaintiff's headache testimony and the medical opinions regarding the severity and limiting effects of Plaintiff's migraines. Therefore, remand for further proceedings is appropriate so that the ALJ can adequately evaluate Plaintiff's testimony and Dr. Brueckner's opinion, reformulate the RFC if necessary, and seek further VE testimony at step five, if necessary.
RECOMMENDATIONS
The Commissioner's decision should be REVERSED and REMANDED for further proceedings.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due May 7, 2024. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.