Opinion
CV-20-00508-TUC-RCC (MSA)
06-30-2022
Eva Federico, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable Maria S. Aguilera United States Magistrate Judge.
Eva Federico seeks judicial review of an unfavorable decision issued by the Commissioner of Social Security Administration (Commissioner). The matter has been fully briefed. (Docs. 23, 29, 30.) For the following reasons, the Court will recommend that the Commissioner's decision be reversed, and that this matter be remanded back to the agency for the calculation and award of benefits.
Background
I. Procedural History.
In 2017, Federico filed applications for disability benefits and supplemental security income, alleging a disability onset date of June 2017. (AR 229, 231.) The applications were denied initially and on reconsideration. (AR 104, 106, 144, 146.) Federico requested a hearing before an administrative law judge (ALJ), and a hearing was held in December 2019. (AR 34-52, 170.) During the hearing, Federico amended her alleged onset date to November 2017. (AR 38.) After the hearing, the ALJ issued a written decision denying Federico's applications. (AR 14-25.) The Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. (AR 1-3.) Federico initiated this lawsuit in November 2020, seeking judicial review of the ALJ's decision. (Doc. 1.) II. The ALJ's Decision.
The ALJ followed the five-step sequential evaluation process for determining whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ found that Federico had not engaged in substantial gainful activity since her alleged onset date. (AR 16.) At step two, the ALJ found that Federico had three severe impairments: epilepsy, migraine headaches, and neurocognitive disorder. (AR 16.) At step three, the ALJ found that Federico did not have an impairment or combination of impairments that met or medically equaled the severity of a listed impairment. (AR 17.)
Between steps three and four, the ALJ found that Federico had the residual functional capacity to perform a full range of work at all exertional levels but with certain non-exertional limitations. (AR 19.) At step four, the ALJ found that Federico could perform her past relevant work as a housekeeper. (AR 23.) The ALJ alternatively found, at step five, that Federico could adjust to other work in the national economy. (AR 24-25.) The ALJ therefore concluded that Federico was not disabled. (AR 25.)
Legal Standard
The ALJ's decision must be affirmed if it is supported by substantial evidence and free of legal error. Lambert v. Saul, 980 F.3d 1266, 1270 (9th Cir. 2020) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)). “Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Coleman v. Saul, 979 F.3d 751, 755 (9th Cir. 2020) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). The ALJ's decision may not be overturned on account of an error that was “inconsequential to the ultimate nondisability determination.” Fordv. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (quoting Tommasetti, 533 F.3d at 1038).
Discussion
I. Evaluation of Symptom Testimony.
Federico contends that the ALJ provided legally insufficient reasons for rejecting her symptom testimony. As the ALJ found that Federico's impairments could reasonably be expected to cause her alleged symptoms, and there was no evidence of malingering, the ALJ could reject Federico's testimony only by providing clear and convincing reasons. Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014) (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)). The Court agrees that the ALJ failed to meet this standard.
Federico testified that she stopped working because of her seizures. (AR 36.) She explained that she had two or three seizures per week, that each seizure lasted approximately three minutes in length, and that seizures were often followed by neck and back pain. (AR 43-45.) She explained that she also suffered from arthritis and headaches on a near daily basis. (AR 43, 45.) Federico acknowledged that it had been about one year since she had seen her neurologist, Dr. Horace Noland. (AR 43.) She explained that this was because Dr. Noland wanted her to complete an “extended in-hospital” observation period before returning, and her insurance refused to cover the expense. (AR 43-44.)
Federico testified that, due to her conditions, she could sweep and wash dishes only about once per week, and that her daughters completed all other household chores. (AR 40.) She denied being able to drive, exercise, cook, do laundry, shop for groceries, or do yardwork, and she stated that she needed help bathing and dressing about “50% of the time.” (AR 39-41.) She estimated that she could stand or sit for only 15 minutes at a time and “comfortably” lift a maximum of two pounds. (AR 43.) She also stated that her medications frequently made her drowsy. (AR 42.)
The ALJ offered several reasons for discounting Federico's testimony. First, the ALJ determined that Federico's testimony was inconsistent with the objective medical evidence. (AR 20.) Objective medical evidence is a “useful” factor in analyzing the severity of a claimant's symptoms. 20 C.F.R. § 404.1529(c)(2). Here, the ALJ observed that all imaging of Federico's head and brain was unremarkable. (AR 476, 534, 536, 549, 568, 892-93.) The ALJ also observed that Federico's neurological examinations were consistently normal. (AR 412, 417, 467, 616.) The ALJ could rationally conclude that this evidence undermined Federico's testimony about the severity of her symptoms. However, although substantial evidence supports the ALJ's finding, it is well-established that symptom testimony “cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Thus, the ALJ was required to provide further justification.
The ALJ next determined that Federico had received only “routine and conservative treatment” since the disability onset date. (AR 20.) Generally, “evidence of ‘conservative treatment' is sufficient to discount a claimant's testimony regarding severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (quoting Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)). However, “[a]ny evaluation of the aggressiveness of a treatment regimen must take into account the condition being treated.” Revels v. Berryhill, 874 F.3d 648, 667 (9th Cir. 2017). The claimant's testimony cannot be discounted when “the record does not reflect that more aggressive treatment options are appropriate or available.” Lapeirre-Gutt v. Astrue, 382 Fed.Appx. 662, 664 (9th Cir. 2010).
In this case, Federico's treatment does not qualify as “conservative.” She was prescribed at least three antiseizure medications (Tegretol, Keppra, and Depakote), she frequently sought treatment in the emergency room, she was transported to the hospital via ambulance on multiple occasions, and she has undergone numerous imaging studies and had many appointments relating to her seizure disorder. (See AR 367, 384, 401, 407, 415, 434, 437, 512, 524-25, 528, 611, 615, 638, 781, 874, 883.) Moreover, “there is no indication in the record that other, more aggressive medical treatments were available for her seizure disorder.” Dixon v. Berryhill, No. EDCV 17-1837, 2018 WL 6421691, at *6 (C.D. Cal. May 14, 2018). Thus, the ALJ's reliance on the aggressiveness of Federico's treatment is not supported by substantial evidence. See id. (reaching the same conclusion in similar circumstances).
Next, the ALJ rejected Federico's testimony because she stated that she had not seen Dr. Noland since December 2018. (AR 22.) An ALJ can reject symptom testimony “if the frequency or extent of the treatment sought by [the] individual is not comparable with the degree of the individual's subjective complaints.” SSR 16-3p, 2017 WL 5180304, at *9 (Oct. 25, 2017). However, the ALJ cannot invoke this reasoning without first “considering possible reasons [for why the individual] may not comply with treatment or seek treatment consistent with the degree of his or her complaints.” Id. The ALJ must “explain how [he] considered the individual's reasons in [his] evaluation of the individual's symptoms.” Id. at *10; see 20 C.F.R. § 402.35(b)(1) (stating that social security rulings are precedential and “binding on all components of the Social Security Administration”).
Here, in response to the ALJ's inquiry about the delay, Federico testified that Dr. Noland wanted her to undergo a sleep study and “an extended in-hospital stay” before returning, and that she had completed the study but was waiting for her insurance carrier to authorize the hospital stay. (AR 43-44.) The ALJ's decision does not mention this justification, which is supported by the record. (See AR 523.) Furthermore, the record is unclear whether the delay was really as long as Federico recalled (and the ALJ found). Dr. Noland indicated in August 2019 that his last appointment with Federico was in December 2018, but there are other records indicating that Federico had appointments in January and March 2019 as well. (AR 727, 874, 883.) As there are no treatment notes from any of these dates (including the date Dr. Noland claims to have last seen Federico), it is not clear whether the delay was one year in length. In addition, the record indicates that, in April 2019, Federico sought a referral to a neurologist who, unlike Dr. Noland, was affiliated with Banner Health, because she wanted a neurologist within the system that provided much of her other medical care. (AR 895.)
The ALJ may have had good reason for rejecting Federico's proffered excuse, but the failure to articulate an explanation renders it impossible to make that determination. See Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1224-26, 1229 (9th Cir. 2009) (reversing because the ALJ failed to make findings “required” by a social security ruling); SSR 16-3p, 2017 WL 5180304, at *10 (“We will explain how we considered the individual's reasons [for not seeking more treatment] in our evaluation of the individual's symptoms.” (emphasis added)). Considering the foregoing, the ALJ's reasoning is not supported by substantial evidence.
Finally, the ALJ found that Federico's testimony about her daily activities was contradicted by a third-party function report submitted by her daughter. (AR 22.) An ALJ can reject a claimant's symptom testimony on the ground that it conflicts with her daily activities. Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014). Here, in January 2018, the daughter reported that when Federico was “well,” she did light housework (with breaks), prepared meals, shopped, crocheted, read, and watched television. (AR 303-07.) The ALJ found that this level of activity was inconsistent with statements made by Federico at her hearing in December 2019, including that she was almost incapable of completing household chores, cooking, and shopping. (AR 39-41.)
The ALJ's finding ignores relevant context and thus is not supported by substantial evidence. The ALJ ignored that Federico also completed a function report in January 2018. (AR 293-301.) Federico's report is strikingly consistent with her daughter's report: Federico reported that, when she was feeling well, she did light housework, prepared meals, and occasionally shopped, read, and crocheted. (AR 294-97.) Thus, as of January 2018, there was no conflict between Federico's self-reports and her daughter's observations.
The ALJ also ignored that Federico's hearing testimony was given nearly two years after her daughter submitted the third-party report, and that Federico's condition worsened during that period. (AR 32, 310.) Federico was diagnosed with colon cancer in April 2018, underwent a colectomy shortly thereafter, and had a “prolonged postoperative recovery.” (AR 17.) Later that year, Federico reported that her seizures had increased in frequency since her colectomy, notwithstanding her being compliant with her medications. (AR 874.) Federico was unable to function for up to 24 hours after a seizure, so the increased frequency of seizures aligns with Federico's testimony that her condition was worse in December 2019 than it was in January 2018. The ALJ considered none of this context. As such, the ALJ's findings are not supported by substantial evidence. See Reddick v. Chater, 157 F.3d 715, 723 (9th Cir. 1998) (criticizing the ALJ for “not fully accounting for the context of materials or all parts of the testimony and reports”).
While the ALJ properly relied on the absence of corroborating medical evidence, she failed to provide any other legally sufficient reasons for discounting Federico's testimony. This error was harmful. Federico testified, among other things, that she cannot lift more than two pounds comfortably, sit or stand for more than 15 minutes at a time, or walk for more than one block without pain or discomfort. The vocational expert testified that there is no work available for a person with these limitations. (AR 50-51.) Thus, the ALJ's error was not “inconsequential to the ultimate nondisability determination.” Ford, 950 F.3d at 1154 (quoting Tommasetti, 533 F.3d at 1038).
As a final matter, the parties dispute whether the ALJ rejected Federico's testimony based on medication noncompliance and unprescribed use of marijuana and methadone. (AR 21-22, 885, 895.) The Court disagrees that the ALJ offered this as a reason for discounting Federico's testimony. The ALJ did not attribute any special significance to the treatment notes mentioning Federico's supposed noncompliance; the ALJ merely described the notes while summarizing the evidence. Summarizing the medical record “is not the same as providing clear and convincing reasons for finding the claimant's symptom testimony not credible.” Brown-Hunter v Colvin, 806 F.3d 487, 494 (9th Cir. 2015).
Moreover, even if the ALJ intended to include medication noncompliance as a reason for discounting Federico's testimony, that reason would not be supported by substantial evidence. An ALJ can reject symptom testimony “if the individual fails to follow prescribed treatment that might improve symptoms.” SSR 16-3p, 2017 WL 5180304, at *9. Here, no doctor determined that Federico was noncompliant with her medications; the reference cited by the ALJ was included in a “differential diagnosis.” (AR 885.) A differential diagnosis is simply a list of what could be causing a patient's symptoms; thus, the inclusion of a condition in a differential diagnosis does not mean that the condition is the cause of the patient's symptoms. Furthermore, Federico consistently reported compliance, and a blood test confirmed that she was compliant. (See AR 398, 415, 513, 523, 874, 883.)
The ALJ's reference to Federico's unprescribed use of marijuana and methadone likewise is of no significance. Federico's providers did not draw any connection between Federico's symptoms and substance use; they merely noted that Federico was using substances. As such, substantial evidence does not support the implication that Federico's substance use contributed to the severity of her symptoms. See Trevizo v. Berryhill, 871 F.3d 664, 681 (9th Cir. 2017) (holding that the ALJ erred in connecting the claimant's dizziness to her medication noncompliance because “no doctor made th[at] connection”). II. Evaluation of Social Security Listings.
Federico contends that she should have been found disabled at step three, and that the ALJ erred in concluding otherwise. The Court disagrees.
At step three, the ALJ must determine whether the claimant has an impairment or a combination of impairments that meets or equals the severity of a listed impairment; if so, the ALJ must find the claimant disabled. Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001) (citing 20 C.F.R. § 404.1520(d)). The listing for epilepsy is satisfied when (a) the claimant's epilepsy is “documented by a detailed description of a typical seizure” and (b) characterized by “[generalized tonic-clonic seizures . . . occurring at least once a month for at least 3 consecutive months . . . despite adherence to prescribed treatment.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.02. “Generalized tonic-clonic seizures are characterized by loss of consciousness accompanied by a tonic phase (sudden muscle tensing causing the person to lose postural control) followed by a clonic phase (rapid cycles of muscle contraction and relaxation, also called convulsions).” Id. § 11.00H.1.a.
Here, under the heading for step three, the ALJ concluded without analysis that Federico did not satisfy any of the section 11.00 listings. (AR 17.) Thus, it appears that the ALJ relied on later findings regarding Federico's symptom testimony and Dr. Noland's medical opinion. (See AR 22.) To the extent that the ALJ relied on the former, her conclusion is not supported by substantial evidence because the rejection of Federico's testimony was error.
Nevertheless, any error at step three was harmless. Although providers observed Federico having tonic-clonic seizures in May 2018 and February 2019, those two incidents do not establish that tonic-clonic seizures were “typical” for Federico. (AR 638, 883.) On multiple occasions, Federico either reported that her seizures varied in type or described seizures that do not fit the definition of tonic-clonic seizures. (See AR 374, 405, 525, 611, 874.) For instance, in mid-2018, she reported that she is conscious for “many” of her seizure events. (AR 797.) As noted above, loss of consciousness is a defining characteristic of tonic-clonic seizures. Given the unclear nature of Federico's seizures, she fails to demonstrate that she satisfies all criteria of the epilepsy listing. See Kallenbach v. Berryhill, 766 Fed.Appx. 518, 520 (9th Cir. 2019) (holding that the ALJ's error with respect to one listing criterion was harmless because the claimant failed to demonstrate that he satisfied the other criteria).
Federico passingly argues that the ALJ erred in finding that her impairments do not medically equal the epilepsy listing. As an initial matter, “[a]n ALJ is not required to discuss the combined effects of a claimant's impairments or compare them to any listing in an equivalency determination, unless the claimant presents evidence in an effort to establish equivalence.” Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005). Here, the record does not indicate that Federico presented any theory of equivalency to the ALJ. Furthermore, “[n]othing in the regulations . . . says a claimant may circumvent the compliance requirement of the epilepsy listings by ‘equaling' rather than ‘meeting' the listing.” Lewis, 236 F.3d at 514. As such, the Court disagrees that the ALJ erred in this respect.
III. Remedy.
Generally, when a federal court finds that an administrative agency erred, the court should “remand to the agency for additional investigation or explanation.” Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)). However, under the “credit-as-true” rule, applicable in social security cases, a court may remand for an award of benefits if:
(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.Garrison, 759 F.3d at 1020. The credit-as-true rule is “flexib[le]” in that it allows “courts to remand for further proceedings when, even though all conditions of the . . . rule are satisfied, an evaluation of the record as a whole creates serious doubt that a claimant is, in fact, disabled.” Id. at 1021.
Here, the second requirement is satisfied because the ALJ provided legally insufficient reasons for rejecting Federico's testimony. The first requirement is also satisfied. The record is fully developed, as it includes Federico's testimony, Federico's adult-function report, a third-party report from Federico's daughter, testimony from a vocational expert, and a residual functional capacity assessment from Federico's neurologist. It also includes hundreds of pages documenting numerous appointments and visits to the emergency room. As to whether further proceedings would be useful, this circuit's “precedent and the objectives of the credit-as-true rule foreclose the argument that a remand for the purpose of allowing the ALJ to [reconsider erroneously rejected testimony] qualifies as a remand for a ‘useful purpose.'” Garrison, 759 F.3d at 1021.
The third requirement is also satisfied. As explained above, the vocational expert testified that there is no work available for a person who has Federico's limitations. Finally, the record shows that Federico's seizures, migraines, and other impairments result in significant, work-preclusive limitations. Significantly, Federico's daughter corroborated Federico's testimony about extreme, incapacitating symptoms following the occurrence of a seizure. There is no serious doubt that Federico is disabled. Therefore,
The Commissioner argues that remand for further proceedings is necessary because questions remain about the type and frequency of Federico's seizures. However, the Commissioner identifies no evidence calling into question the frequency of Federico's seizures. And while the type of seizure matters forpurposes of the epilepsy listing, it does not matter for purposes of the credit-as-true rule. What matters is that Federico has seizures and that her seizures contribute to her inability to work.
IT IS RECOMMENDED that the Commissioner's decision be reversed, and that this matter be remanded back to the agency for the calculation and award of benefits.
This recommendation is not immediately appealable to the United States Court of Appeals for the Ninth Circuit. The parties shall have fourteen days to file specific written objections with the district court. The parties shall have fourteen days to file responses to any objections. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2). No replies may be filed absent prior authorization by the district court. Failure to file timely objections may result in the acceptance of this recommendation by the district court without de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
The Clerk of Court is directed to terminate the referral of this matter. Filed objections should bear the following case number: CV-20-00508-TUC-RCC.