Opinion
6:20-cv-01981-MK
01-21-2022
JASON R., [1] Plaintiff, v. COMMISSIONER, Social Security Administration, Defendant.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI, UNITED STATES MAGISTRATE JUDGE
Plaintiff Jason A. R. seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying his applications for disability insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”). This Court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, the Commissioner's decision should be REVERSED and this case should be REMANDED for an immediate calculation and payment of benefits.
PROCEDURAL BACKGROUND
Plaintiff filed an application for DIB in June 2017 with an alleged onset date of May 29, 2017. Tr. 100. Plaintiff's application was denied initially in December 2017, Tr. 112, and again upon reconsideration in April 2018, Tr. 132. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), Tr. 151, and a hearing was held in March 2020, Tr. 54. On April 8, 2020, the ALJ issued a decision finding Plaintiff not disabled within the meaning of the Act. Tr. 47. The Appeals Council denied Plaintiff's request for review, Tr. 1, and the ALJ's decision operates as the final decision of the Commissioner subject to this Court's review. Plaintiff's timely appeal followed.
FACTUAL BACKGROUND
Plaintiff was 42 years old on his alleged onset date of May 29, 2017. Tr. 271. He has a high school education and past relevant work as a garbage collector and garbage collection driver. Tr. 45, 289. Plaintiff alleges disability based on traumatic brain injury, neurological disorder, depression, bipolar disorder, anxiety, back injury, multiple concussions, blackouts, loss of consciousness with memory loss, loss of motor skills, disorganized and slurred speech, neuropathy, and pain numbness and tingling in feet and hands. Tr. 288.
LEGAL STANDARD
A 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. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted). The court must weigh “both the evidence that supports and detracts from the [Commissioner's] conclusion.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). “Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's.” Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted); see also Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (holding that the court “must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation” (citation omitted)). “[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (citation and internal quotations omitted).
The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . 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 Commissioner has established a five-step process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. First, the Commissioner determines whether a claimant is engaged in “substantial gainful activity”; if so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the Commissioner determines whether the claimant has a “medically severe impairment or combination of impairments.” Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). A severe impairment is one “which significantly limits [the claimant's] physical or mental ability to do basic work activities[.]” 20 C.F.R. §§ 404.1520(c), 416.920(c). If the impairment does not, the claimant is not disabled. Yuckert, 482 U.S. at 141. At step three, the Commissioner determines whether the impairments meet or equal “one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Id.; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the analysis proceeds. Yuckert, 482 U.S. at 141.
At this point, the Commissioner must evaluate medical and other relevant evidence to determine the claimant's “residual functional capacity” (“RFC”), an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations the claimant's impairments impose. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 416.945(b)-(c). At the fourth step, the Commissioner determines whether the claimant can perform “past relevant work.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can work, the claimant is not disabled; if the claimant cannot perform past relevant work, the burden shifts to the Commissioner. Yuckert, 482 U.S. at 146 n.5. At step five, the Commissioner must establish that the claimant can perform other work that exists in significant numbers in the national economy. Id. at 142; 20 C.F.R. §§ 404.1520(e)-(f), 416.920(e)-(f). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ'S DECISION
At step one, the ALJ found that Plaintiff met the insured requirements of the Act and had not engaged in substantial gainful activity since his alleged onset date. Tr. 39. At step two, the ALJ found that Plaintiff had the following severe impairments: degenerative disc disease, traumatic brain injury with post-concussive syndrome, seizure disorder, and alcohol use disorder in early remission. Id. At step three, the ALJ found that Plaintiff did not have an impairment or combination thereof that met or medically equaled the severity of a listed impairment. Tr. 40. The ALJ found that Plaintiff had the RFC to perform light work with the following limitations:
[Plaintiff] can occasionally climb ramps and stairs, but he can never climb ladders, ropes, or scaffolds. He can occasionally stoop and crawl. [Plaintiff] must avoid all exposure to unprotected heights, moving mechanical parts, and operating a motor vehicle. [Plaintiff] is limited to simple, routine, and repetitive tasks and simple work-related decisions.Tr. 41.
At step four, the ALJ determined that Plaintiff was unable to perform any past relevant work. Tr. 45. At step five, the ALJ found, in light of Plaintiff's age, education, work experience, and RFC, a significant number of jobs existed in the national economy such that Plaintiff could sustain employment despite his impairments. Tr. 46. The ALJ thus found Plaintiff was not disabled within the meaning of the Act. Tr. 47.
DISCUSSION
Plaintiff asserts that remand is warranted based on four errors made by the ALJ: (1) improperly rejecting medical opinion evidence; (2) improperly rejecting Plaintiff's subjective symptom testimony; (3) improperly rejecting the lay witness statements; and (4) failing to include all of Plaintiff's limitations in the hypothetical questions the ALJ posed to the vocational expert. The Court addresses each argument in turn.
I. Subjective Symptom Testimony
Plaintiff assigns error to the ALJ's evaluation of his subjective symptom testimony. Pl.'s Br. 13-14, ECF No. 13. When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms complained of, and the record contains no affirmative evidence of malingering, “the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). A general assertion that the claimant is not credible is insufficient; instead, 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) (citation omitted). If the ALJ's finding regarding the claimant's subjective symptom testimony 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).
Social Security Ruling (“SSR”) 16-3p provides that “subjective symptom evaluation is not an examination of an individual's character, ” and requires that the ALJ consider all the evidence in an individual's record when evaluating the intensity and persistence of symptoms.SSR 16-3p, 2017 WL 5180304, at *2 (S.S.A. Oct. 25, 2017). 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.
Effective March 28, 2016, SSR 16-3p superseded and replaced SSR 96-7p, which governed the assessment of claimant's “credibility.” See SSR 16-3p, 2017 WL 5180304, at *1-2 (S.S.A. Oct. 25, 2017).
At his hearing, Plaintiff testified that he formerly worked as a garbage truck driver, but no longer had the ability to drive. Tr. 59. He testified that he experiences episodes of vertigo and has issues with depth perception. Tr. 61-62. Plaintiff reported that he had to stop working when it became unsafe for him to drive. Tr. 71. He spends most of the day reclining with his legs elevated and must change positions often. Tr. 63, 68. Plaintiff often falls and estimated that he could stand for approximately ten minutes. Tr. 69. He testified that he experiences seizure-like spasms and has dropped and broken objects during these spasms. Tr. 65. Plaintiff reported that he bumps into things when walking and sometimes uses a wheelchair at medical appointments. Tr. 67.
Plaintiff further testified that he regularly loses focus while completing household tasks and accidentally cut himself on one such occasion. Tr. 62. He also explained that he gets distracted while cooking and once accidentally set his parents' barbecue grill on fire. Tr. 78. He testified that he has constant headaches. Tr. 70. Plaintiff also testified that he is easily startled, sometimes paranoid, and has panic attacks. Tr. 73-74. He was abused as a child and has nightmares and flashbacks about the experience. Tr. 72. Plaintiff reported symptoms of depression and suicidal ideation. Tr. 78. He testified that he loses track of his medications and what day it is. Tr. 75. Plaintiff also testified that he does not follow directions well and does not leave the house on most days. Tr. 76-77. He testified that he was not always able to get proper medical care when he was uninsured and relied on his former wife to get him to his appointments. Tr. 81.
The ALJ found that Plaintiff'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[.]” Tr. 47. The Commissioner asserts that the ALJ supplied two valid rationales that undermined Plaintiff's subjective complaints: (A) an inconsistency with the medical record; and (B) symptom improvement with treatment.
A. Medical Record
In some circumstances, an ALJ may reject subjective complaints where the claimant's “statements at her hearing do not comport with objective medical evidence in her medical record.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). However, especially in the mental health context, an ALJ may not cherry-pick isolated instances of favorable psychological symptoms when the record as a whole reflects long-standing psychological disability. See Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014); see also Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). Moreover, a lack of objective evidence may not be the sole basis for rejecting a claimant's subjective complaints. See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001).
An independent review of the record establishes that Plaintiff's subjective reports find ample support in the record. For example, in June 2017, Plaintiff reported experiencing a syncopal episode at a park and falling down an embankment. Tr. 408. A month later, Plaintiff reported back pain, loss of balance, dizziness, tingling, tremors, sensory change, loss of consciousness, and headaches daily. Tr. 459. In August 2017, Plaintiff reported confusion, convulsions, suicidal ideation, dizziness, fainting, muscle weakness, sleep disturbances, limb weakness, difficulty walking, and headaches. Tr. 409. In September 2017, Plaintiff reported tingling, seizures, loss of consciousness, headaches, and depression. Tr. 455. In October 2017, Plaintiff presented with symptoms consistent with depression in the moderate range and reported experiencing suicidal ideation throughout his life. Tr. 413, 418. In November 2017, Plaintiff reported having two seizures. Tr. 422. In April 2018, Plaintiff presented with chronic headaches and seizures. Tr. 428. In October 2018, Plaintiff reported seizures, depression, and suicidal ideation. Tr. 487. In July 2019, Plaintiff again reported seizures, muscle spasms, chronic headaches, dizziness, and issues with depth perception. Tr. 503. In January 2020, Plaintiff reported continued anxiety, stress, poor concentration, and pain despite medication. Tr. 559, 572. As such, the medical record in this case was not a clear and convincing reason to reject Plaintiff's subjective symptom testimony.
The Commissioner also argues that “the physical examinations were mostly unremarkable” and cites results from diagnostic imaging such as MRI, EEG, and CT scans. Def.'s Br. 9, ECF No. 14. A lack of supportive medical evidence is a valid consideration in evaluating a claimant's testimony. Burch, 400 F.3d at 681. However, Social Security Ruling 19-4p explains that physicians may conduct diagnostic imaging scans such as MRI to “rule out other possible causes of headaches - such as a tumor - meaning that an unremarkable MRI is consistent with a primary headache disorder diagnosis.” SSR 19-4p, 2019 WL 4169635, at *4 (S.S.A. Aug. 26, 2019); see also Barbara P. v. Kijakazi, 2021 WL 4295745, at *9 (E.D. Wash. Sept. 21, 2021) (“Such imaging is used to rule out other medical conditions, not measure the severity of headaches, and using lack of MRI findings as objective evidence to discredit Plaintiff's symptom complaints was an error by the ALJ.”).
Here, in discounting Plaintiff's subjective complaints, the ALJ cited to negative MRI and CT scans as well as a normal EEG study. Tr. 43. The ALJ did not explain how these diagnostic test results contradicted Plaintiff's subjective complaints of headaches. Accordingly, Plaintiff's diagnostic test results were not a clear and convincing reason to reject his subjective symptom testimony.
B. Treatment History
The Commissioner asserts that the ALJ properly rejected Plaintiff's testimony because Plaintiff's “condition improved and was reasonably controlled with treatment.” Def.'s Br. 8, ECF No. 14. The effectiveness of treatment is a relevant factor an ALJ may consider when evaluating subjective symptom testimony. See 20 C.F.R. §§ 404.1529(c)(3)(iv-v), 416.929(c)(3)(iv-v). However, “it is error to reject a claimant's testimony merely because symptoms wax and wane in the course of treatment.” Garrison, 759 F.3d at 1017. Rather, reports of improvement in the mental health context “must be interpreted with an understanding of the patient's overall well-being and the nature of her symptoms.” Id. Moreover, the Ninth Circuit has cautioned against drawing inferences based upon reports of improvements during mental health treatment. See id. at 1017-18; see also Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (“[S]tatements must be read in context of the overall diagnostic picture he draws. That a person who suffers from severe panic attacks, anxiety, and depression makes some improvement does not mean that the person's impairments no longer seriously affect her ability to function in a workplace.”).
An independent review of those treatment notes fails to support the Commissioner's contention that Plaintiff's condition improved. The ALJ cited a single treatment note from July 2019 that indicated Plaintiff “had been on medication prior to moving with good control of his seizures.” Tr. 43. The ALJ then concluded that “[s]ince being off medication, [Plaintiff] endorsed an increase in frequency of seizures.” Id. However, in January 2020, Plaintiff reported his seizures had continued despite taking Keppra. Tr. 526. In addition, Plaintiff regularly reported anxiety, stress, poor concentration, and pain. See, e.g., Tr. 559, 572; see also Tr. 409, 428, 459, 503 (reporting chronic headaches); Tr. 409, 413, 418, 487 (reporting depression, anxiety, and suicidal ideation); Tr. 409, 455, 459, 503 (reporting dizziness, fainting, weakness, and muscle spasms). When viewed in context, Plaintiff's impairments continued to affect his ability to function despite medication.
Accordingly, Plaintiff's response to treatment based on a single treatment note was not a clear and convincing reason to reject his subjective symptom testimony. See Garrison, 759 F.3d at 1017 (“Cycles of improvement and debilitating symptoms are a common occurrence, and in such circumstances it is error for an ALJ to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working.”); see also Ghanim, 763 F.3d at 1162 (noting that the “fact that a person suffering from depression makes some improvement does not mean that person's impairment no longer seriously affects his ability to function in the workplace” (citation, internal quotations, and bracketing omitted)).
II. Medical Evidence
Plaintiff challenges the ALJ's assessment of the medical opinion evidence. Pl.'s Br. 5, ECF No. 13. For disability claims filed on or after March 27, 2017, new regulations for evaluating medical opinion evidence apply. Revisions to Rules Regarding the Evaluation of Medical Evidence (“Revisions to Rules”), 2017 WL 168818, 82 Fed.Reg. 5844, at *5867-68 (Jan. 18, 2017); see also Tyrone W. v. Saul, No. 3: 19-cv-01719-IM, 2020 WL 6363839, at *6 (D. Or. Oct. 28, 2020) (“For claims filed on or after March 27, 2017, Federal Regulation 20 C.F.R. § 416.920c governs how an ALJ must evaluate medical opinion evidence.”).
Under the new regulations, the Commissioner is no longer required to supply “specific evidentiary weight to medical opinions; this includes giving controlling weight to any medical opinion.” Allen O. v. Comm'r of Soc. Sec., 3:19-cv-02080-BR, 2020 WL 6505308, at *5 (D. Or. Nov. 5, 2020) (citing Revisions to Rules, 2017 WL 168819, at *5867-68). Instead, ALJs must consider every medical opinion in the record and evaluate each opinion's persuasiveness. 20 C.F.R. §§ 404.1520c(a), 416.920c(a). The two most important factors in doing so are the opinion's “supportability” and “consistency.” Id. ALJs must articulate “how [they] considered the supportability and consistency factors for a medical source's medical opinions . . . in [their] decision.” 20 C.F.R. §§ 404.1520c(b)(2), 416.1520c(b)(2). With regard to supportability, the “more relevant the objective medical evidence and supporting explanations presented by a medical source are to support [their] medical opinion[ ], the more persuasive the medical opinions . . . will be.” 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). As to consistency, the “more consistent a medical opinion[ ] is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) . . . will be.” 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2). ALJs may consider other factors relating to the provider's relationship with the claimant; however, they are not required to do so except in a limited number of circumstances. 20 C.F.R. §§ 404.1520c(b)(3), 416.1520c(b)(3).
The parties do not dispute that the new regulations apply. They do, however, dispute the relevance of existing Ninth Circuit case law and reviewing standards in light of the new regulations. See, e.g., Robert S. v. Saul, No. 3: 19-cv-01773-SB, 2021 WL 1214518, at *4 (D. Or. Mar. 3, 2021) (noting that “the Commissioner revised agency regulations to eliminate the hierarchy of medical opinions”); Thomas S. v. Comm'r of Soc. Sec., 2020 WL 5494904, at *2 (W.D. Wash. Sept. 11, 2020) (noting that the “hierarchy [for treatment of medical opinion evidence] underpinned the requirement in the Ninth Circuit that an ALJ must provide clear and convincing reasons to reject an uncontradicted doctor's opinion and specific and legitimate reason where the record contains contradictory opinion”). The Ninth Circuit has not yet addressed whether or how the new regulations alter the standards set forth in prior cases for rejecting medical opinion evidence. See Robert S., 2021 WL 1214518, at *4 (D. Or. Mar. 3, 2021) (collecting cases).
Plaintiff asserts that “the new rules do not negate the need for an ALJ to provide at least ‘specific and legitimate reasons' supported by substantial evidence to reject opinions from a treating or examining physician which are contradicted by other opinions.” Pl.'s Br. 8, ECF No. 13. The Commissioner argues that “[b]ecause the hierarchy of medical opinions and the deference given to some medical opinions has been eliminated, the old standards no longer apply.” Def.'s Br. 4, ECF No. 14.
Given the Act's broad grant of authority to the agency to adopt rules regarding “proofs and evidence, ” prior caselaw must yield to the Commissioner's new, permissible regulations to the extent older cases expressly relied on the former regulations. Yuckert, 482 U.S. at 145 (“The Act authorizes the Secretary to ‘adopt reasonable and proper rules and regulations to regulate and provide for the nature and extent of the proofs and evidence and the method of taking and furnishing the same' in disability cases.” (citing 42 U.S.C. § 405(a)); Nat'l Cable & Telecomm. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 982-83 (2005) (holding that courts should grant Chevron deference to regulatory changes that conflict with prior judicial precedent, unless a court's prior construction followed from the unambiguous terms of the statute and thus left no room for agency discretion); Emilie K. v. Saul, 2021 WL 864869, at *4 (E.D. Wash. Mar. 8, 2021) (collecting cases and observing “[m]ost District Courts to have addressed this issue have concluded that the regulations displace Ninth Circuit precedent”).
The new regulations do not, however, upend the Ninth Circuit's entire body of caselaw relating to medical evidence, which remain binding on this Court. For example, it remains true that ALJs may not cherry-pick evidence in discounting a medical opinion. Ghanim, 763 F.3d at 1162; see also Holohan, 246 F.3d at 1207 (reversing ALJ's selective reliance “on some entries in [the claimant's records while ignoring] the many others that indicated continued, severe impairment”). Nor may ALJs dismiss a medical opinion without providing a thorough, detailed explanation for doing so:
To say that medical opinions are not supported by sufficient objective findings or are contrary to the preponderant conclusions mandated by the objective findings does not achieve the level of specificity our prior cases have required, even when the objective factors are listed seriatim. The ALJ must do more than offer his own conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct.Regennitter v. Comm'r of Soc. Sec. Admin., 166 F.3d 1294, 1299 (9th Cir. 1999) (citation omitted). In other words, while the new regulations eliminate the previous hierarchy of medical opinion testimony that gave special status to treating physicians, ALJs must still provide sufficient reasoning for federal courts to engage in meaningful appellate review. See Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (explaining that “a reviewing court should not be forced to speculate as to the grounds for an adjudicator's rejection” of certain evidence); see also Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014) (“Although the ALJ's analysis need not be extensive, the ALJ must provide some reasoning in order for us to meaningfully determine whether the ALJ's conclusions were supported by substantial evidence.”). With these principles in mind, the Court turns to the ALJ's assessment of the medical evidence.
Gary McGuffin, Psy.D., conducted a psychological evaluation of Plaintiff in February 2020. Tr. 616. Dr. McGuffin diagnosed Plaintiff with a major neurocognitive disorder as a result of traumatic brain injury, depressive disorder, and a trauma- and stress-related disorder. Tr. 632.
Dr. McGuffin summarized his findings as follows:
Based on the ADLs, information collected from other providers, and working with [Plaintiff], as well as, spending up to nine hours interviewing, it is determined that uncontrolled psychologically based symptoms create major obstacles significantly limiting [Plaintiff's] adaptive functioning.
There are significant deficits in his coping skills as he experiences uncontrollable symptoms of multiple disorders. [Plaintiff] becomes self-critical, frustrated and angry when faced with the reality of his functional limitations. He is easily overwhelmed with self-critical feelings as he is constantly exposed to his increasingly limited ability for adaptive functioning. Intrusive thoughts compete with his ability to sustain attention. . . .
Presently [Plaintiff] exhibits an exacerbation of uncontrolled symptoms due to multiple mental disorders and complicated by
chronic body pain. Therefore, it is determined [Plaintiff] is no longer capable of consistently performing work tasks or having the adaptive functioning necessary to complete a normal workday without interruptions from psychological symptoms.Tr. 635. During the evaluation, Plaintiff needed questions repeated, his concentration appeared scattered, he reacted emotionally with inaccurate conclusions, and he was verbose and distractible. Tr. 623. Plaintiff also presented as anxious and tense. Tr. 623. Dr. McGuffin noted that Plaintiff shifted in his seat to reduce pain and appeared to become dizzy when standing up too quickly. Tr. 623.
Dr. McGuffin opined that Plaintiff would be markedly limited, or unable to perform the designated task for 30% of an eight-hour work day, in his ability to: understand and remember detailed instructions; maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; complete a normal work day or work week without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; and be aware of normal hazards and take appropriate precautions. Tr. 636. In addition, Dr. McGuffin opined that Plaintiff would be moderately limited, or unable to perform the designated task for 20% of an eight-hour work day, in his ability to: carry out short and simple instructions; sustain an ordinary routine without special supervision; work in coordination with or proximity to others without being unduly distracted by them; make simple work-related decisions; respond appropriately to changes in the work setting; travel in unfamiliar places and use public transportation; and set realistic goals or make plans independently of others. Tr. 637-38. Because of Plaintiff's deficits in learning, short-term memory, focus and concentration, seizures, poor communication, and chronic pain, Dr. McGuffin opined that Plaintiff would likely be absent from work five days or more each month. Tr. 639.
The ALJ determined that Dr. McGuffin's medical opinion was not persuasive because it “appear[ed] to rely significantly on the subjective complaints of the claimant” and “the longitudinal record [did] not support those subjective complaints.” Tr. 44. The Commissioner argues that the ALJ's determination was proper because Dr. McGuffin's opinion: (1) relied on Plaintiff's subjective complaints; and (2) conflicted with the longitudinal record. Def.'s Br. 5-6, ECF No. 14.
First, although an ALJ may in some circumstances discount an opinion that relies on subjective reports, the ALJ's rejection of Dr. McGuffin's opinion here was improper. As explained above, the ALJ failed to supply legally sufficient reasons for rejecting Plaintiff's subjective symptom testimony. In addition, the Ninth Circuit has explained that self-reports in the psychiatry context differ from other treatment settings. See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (“Psychiatric evaluations may appear subjective, especially compared to evaluation in other medical fields. Diagnoses will always depend in part on the patient's self-report, as well as on the clinician's observations of the patient. But such is the nature of psychiatry. . . . Thus, the rule allowing an ALJ to reject opinions based on self-reports does not apply in the same manner to opinions regarding mental illness.”).
Second, an independent review of the record reflects that Dr. McGuffin's opinion is supported by the medical record. See, e.g., 410, 415, 460, 489, 505, 528, 571, 586 (noting Plaintiff's difficulty focusing and answering questions); 413, 455, 459, 575, 577, 581, 587 (noting Plaintiff's depression); 415, 456, 460, 471, 586 (noting Plaintiff's memory issues); 456, 460, 489, 565, 571, 580 (appearing anxious). In addition, Dr. McGuffin's opinion is consistent with Plaintiff's reports to other medical providers throughout the record. See, e.g., Tr. 409, 428, 459, 503 (reporting chronic headaches); Tr. 409, 413, 418, 487, 559, 572 (reporting depression, anxiety, and suicidal ideation); Tr. 409, 455, 459, 503, 559, 572 (reporting dizziness, fainting, weakness, and muscle spasms). As explained, an ALJ may not cherry-pick isolated instances of favorable psychological symptoms when the record as a whole reflects long-standing psychological disability. See Ghanim, 763 F.3d at 1164; see also Garrison, 759 F.3d at 1017. As such, the ALJ improperly rejected Dr. McGuffin's opinion.
III. Lay Witness Testimony
Plaintiff assigns error to the ALJ's evaluation of the lay witness statements. Pl.'s Br. 15, ECF No. 13. Lay witness testimony regarding the severity of a claimant's symptoms or how an impairment affects a claimant's ability to work is competent evidence that an ALJ must take into account. Nguyen, 100 F.3d at 1467. To reject such testimony, an ALJ must provide “reasons that are germane to each witness.” Rounds v. Comm'r of Soc. Sec. Admin., 807 F.3d 996, 1007 (9th Cir. 2015) (quoting Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012)). Further, the reasons provided must also be “specific.” Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1234 (9th Cir. 2011) (citing Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009)). However, where the ALJ has provided clear and convincing reasons for rejecting the claimant's symptom testimony, and the lay witness has not described limitations beyond those alleged by the claimant, the ALJ's failure to provide germane reasons for rejecting lay testimony can be harmless. Molina, 674 F.3d at 1121-22.
Although the ALJ must consider evidence from nonmedical sources pursuant to the new regulations, 20 C.F.R. §§ 404.1520c(d), 416.920c(d), the ALJ is “not required to articulate how he considers evidence from nonmedical sources and he does not have to use the same criteria as required for medical sources. The regulations, however, do not eliminate the need for the ALJ to articulate analysis of lay-witness statements.” Ryan L. F. v. Comm'r of Soc. Sec., No. 6:18-cv-01958-BR, 2019 WL 6468560, at *8 (D. Or. Dec. 2, 2019) (internal quotations and bracketing omitted). The ALJ errs when the ALJ fails to provide specific, germane reasons for rejecting the lay witness statement. Joseph M. R. v. Comm'r of Soc. Sec., No. 3:18-cv-01779-BR, 2019 WL 4279027, at *12 (D. Or. Sep. 10, 2019).
The record contains lay witness statements submitted by Plaintiff's wife, Christina R., and Plaintiff's stepfather, Robert K. Tr. 322, 390. The ALJ did not mention the lay witness testimony. The Commissioner asserts that the ALJ had valid reasons for discounting both Plaintiff's subjective complaints and the lay witness statements which were duplicative of Plaintiff's subjective symptom testimony. Def.'s Br. 10-11, ECF No. 14. However, as discussed above, the ALJ failed to supply legally sufficient reasons for rejecting Plaintiff's subjective complaints. Accordingly, the ALJ's failure to explicitly reject the lay witness statements was harmful error.
IV. Step Five Analysis
An ALJ may rely on the testimony of a vocational expert (“VE”) at step five. 20 C.F.R. §§ 404.1566, 416.966. However, an ALJ may rely on a VE's testimony only where such testimony is based on a hypothetical that “contain[s] all of the limitations that the ALJ found credible and supported by substantial evidence in the record.” Bayliss, 427 F.3d at 1217. Where an ALJ's hypothetical is based on a residual functional capacity assessment that does not include some of the claimant's limitations, the VE's testimony “has no evidentiary value.” Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th Cir. 2008).
Given the ALJ's errors in assessing the medical evidence, Plaintiff's subjective symptom testimony, and the lay witness statements, the VE's opinion in the case lacks evidentiary value. Carmickle, 533 F.3d at 1166; see also Ghanim, 763 F.3d at 1166 (explaining that an ALJ's RFC determination is flawed where the ALJ improperly discounted medical evidence and therefore the reliance on the corresponding VE opinion was error). Accordingly, the ALJ's step five finding is not supported by substantial evidence and must be reversed.
V. Remand
A reviewing court has discretion to remand an action for further proceedings or for a finding of disability and an award of benefits. See, e.g., Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985). Whether an action is remanded for an award of benefits or for further proceedings depends on the likely utility of additional proceedings. Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000). In determining whether an award of benefits is warranted, the court conducts the “three-part credit-as-true” analysis. Garrison, 759 F.3d at 1020. Under this analysis the court considers whether: (1) the ALJ has failed to provide legally sufficient reasons for rejecting evidence; (2) the record has been fully developed and further proceedings would serve no useful purpose; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. See Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015).
Here, the first requisite is met based on the ALJ's harmful legal errors. As discussed above, the ALJ failed to provide legally sufficient reasons for discrediting Plaintiff's subjective symptom testimony, the medical opinion evidence, and the lay witness statements. As to the second requisite, the record has been fully developed and further proceedings would not be useful. Dr. McGuffin opined that Plaintiff would miss five or more days per month due to his deficits in learning, short-term memory, focus and concentration, seizures, poor communication, and chronic pain. Tr. 639. However, the VE testified that employees in unskilled jobs could miss no more than one day per month. Tr. 87. In addition, Dr. McGuffin opined that Plaintiff would be unable to perform the designated task for 30% of an eight-hour work day in his ability to: understand and remember detailed instructions; maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; complete a normal work day or work week without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; and be aware of normal hazards and take appropriate precautions. Tr. 636. Dr. McGuffin also opined that Plaintiff would be unable to perform the designated task for 20% of an eight-hour work day in his ability to: carry out short and simple instructions; sustain an ordinary routine without special supervision; work in coordination with or proximity to others without being unduly distracted by them; make simple work-related decisions; respond appropriately to changes in the work setting; travel in unfamiliar places and use public transportation; and set realistic goals or make plans independently of others. Tr. 637-38. The VE testified that employees with these rates of being off task during a work day would not sustain employment. Tr. 87.
Thus, in fully crediting Dr. McGuffin's opinion as true, the ALJ would be required to find Plaintiff disabled on remand. See Clester v. Comm'r of Soc. Sec., No. 09-cv-765-ST, 2010 WL 3463090, at *8 (D. Or. Aug. 3, 2010) (crediting doctor's opinion that the claimant “had marked limitations in her ability to . . . maintain regular attendance, and be punctual within customary tolerances” combined with VE testimony that “individuals who miss two or more days on a chronic basis are not competitively employable” warranted remanding for an immediate calculation and award of benefits) (emphasis added), adopted, 2010 WL 3463078 (D. Or. Aug. 31, 2010); see also Hazen v. Colvin, 2015 WL 1186776, at *7 (E.D. Wash. Mar. 16, 2015) (crediting doctors' opinions that the claimant had “marked limitations and an inability to sustain basic work activities” and remanding for an immediate calculation and award of benefits).
Lastly, considering the record as a whole, the Court has no basis to doubt that Plaintiff is disabled under the Act. As such, the Court concludes the proper remedy in this case is to remand for a calculation of benefits. See Garrison, 759 F.3d at 1022-23.
CONCLUSION
For the reasons discussed above, the Commissioner's decision was not based on substantial evidence. Accordingly, the Commissioner's decision should be REVERSED and this case should be REMANDED pursuant to sentence four of 42 U.S.C. §405(g) for an immediate calculation and payment of benefits.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order.
The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).
IT IS SO ORDERED. 23