Opinion
6:23-cv-00251-HZ
12-29-2023
Lilian R.,[1] Plaintiff, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
Mark A. Manning Katherine Eitenmiller Wells, Manning, Eitenmiller & Taylor, P.C. Attorneys for Plaintiff Kevin C. Danielson U.S. Attorney’s Office District of Oregon Joseph John Langkamer Social Security Administration Office of the General Counsel Attorneys for Defendant
Mark A. Manning
Katherine Eitenmiller
Wells, Manning, Eitenmiller & Taylor, P.C.
Attorneys for Plaintiff
Kevin C. Danielson
U.S. Attorney’s Office
District of Oregon
Joseph John Langkamer
Social Security Administration
Office of the General Counsel
Attorneys for Defendant
OPINION & ORDER
MARCO A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE
Plaintiff Lilian R. brings this action seeking judicial review of the Commissioner’s final decision to deny supplemental security income (“SSI”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)). The Court reverses the Commissioner’s decision and remands this case for further administrative proceedings.
PROCEDURAL BACKGROUND
Plaintiff applied for SSI on July 11, 2018, alleging an onset date of January 1, 2006. Tr. 13. Her application was denied initially and on reconsideration. Tr. 13. On January 18, 2022, Plaintiff appeared with counsel for a hearing before an Administrative Law Judge (“ALJ”). Tr. 13. On February 24, 2022, the ALJ found Plaintiff not disabled. Tr. 26. The Appeals Council denied review. Tr. 1.
Citations to “Tr.” refer to the page(s) indicated in the official transcript of the administrative record, filed herein as Docket No. 7.
FACTUAL BACKGROUND
Plaintiff alleges disability based on severe anxiety, depression, and migraines. Tr. 294. On the date her application was filed, the date the ALJ used for reference, she was 32 years old. Tr. 24. She has at least a high school education and no past relevant work. Tr. 24.
SEQUENTIAL DISABILITY EVALUATION
A claimant is disabled if they are unable 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), 1382c(a)(3)(A). Disability claims are evaluated according to a five-step procedure. See Valentine v. Comm’r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step procedure to determine disability). The claimant bears the ultimate burden of proving disability. Id.
In the first step, the Commissioner determines whether a claimant is engaged in “substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In 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). If not, the claimant is not disabled. Id.
In step three, the Commissioner determines whether the claimant’s impairments, singly or in combination, meet or equal “one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity (RFC) to perform their “past relevant work.” 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can perform past relevant work, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(e)-(f), 416.920(e)-(f). If the Commissioner meets their burden and proves that the claimant can perform other work that exists in the national economy, then the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ’S DECISION
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since she applied for SSI. Tr. 16. Next, at steps two and three, the ALJ determined that Plaintiff has the following severe impairments: “schizoaffective disorder; a depressive, bipolar, or related disorder (variably called depression, major depressive disorder, or bipolar II); (generalized anxiety disorder, social anxiety disorder, anxiety disorder, or anxiety); and borderline personality disorder.” Tr. 16. However, the ALJ determined that Plaintiff’s impairments did not meet or medically equal the severity of a listed impairment. Tr. 17. At step four, the ALJ concluded that Plaintiff has the residual functional capacity to perform a full range of work at all exertional levels with the following nonexertional limitations:
the claimant is limited to understanding, remembering, carrying out, and maintaining attention and concentration on no more than simple tasks and instructions, defined specifically as those job duties that can be learned in up to 30 days’ time. She can sustain only ordinary routines and make no more than simple, work-related decisions. She can tolerate no more than occasional interaction with coworkers and supervisors, and she can have no interaction with the general public.Tr. 19. Plaintiff had no past relevant work. Tr. 24. But at step five, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, such as “Dishwasher,” “Laundry worker,” and “Industrial cleaner.” Tr. 25. Thus, the ALJ concluded that Plaintiff is not disabled. Tr. 25.
STANDARD OF REVIEW
A court may set aside the Commissioner’s denial of benefits only when the Commissioner’s findings “are based on legal error or are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). “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.” Id. (internal quotation marks omitted). The court considers the record as a whole, including both the evidence that supports and detracts from the Commissioner’s decision. Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). “Where the evidence is susceptible to more than one rational interpretation, the ALJ’s decision must be affirmed.” Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (“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.”) (internal quotation marks omitted).
DISCUSSION
Plaintiff argues that the ALJ erred by (1) rejecting her subjective symptom testimony and (2) not fully crediting the medical opinion of Aroon Suansilppongse, MD. Pl. Op. Br. 4-5, ECF 10. The Court concludes that the ALJ erred in discounting Plaintiff’s symptom testimony and in not fully crediting Dr. Suansilppongse’s opinion. These errors require a remand for further administrative proceedings.
I. Subjective Symptom Testimony
The ALJ is responsible for evaluating symptom testimony. SSR 16-3p, 2017 WL 5180304, at *1 (Oct. 25, 2017). The ALJ engages in a two-step analysis for subjective symptom evaluation. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (superseded on other grounds). First, the ALJ determines whether there is “objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged.” Id. (internal quotations omitted). Second, “if the claimant has presented such evidence, and there is no evidence of malingering, then the ALJ must give specific, clear and convincing reasons in order to reject the claimant’s testimony about the severity of the symptoms.” Id. (internal quotations omitted).
When evaluating subjective symptom testimony, “[g]eneral findings are insufficient.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). “An ALJ does not provide specific, clear, and convincing reasons for rejecting a claimant’s testimony by simply reciting the medical evidence in support of his or her residual functional capacity determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015). Instead, “the ALJ must specifically identify the testimony she or he finds not to be credible and must explain what evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195 (9th Cir. 2001); see also Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (The reasons proffered must be “sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discount the claimant’s testimony.”).
Plaintiff’s earnings history through the year 2020 shows that the only years for which she reported income were 2004, 2005, 2007, and 2008. Tr. 266. In each year, she earned under $2,200. Tr. 266. In her function report, completed in October 2018, Plaintiff wrote that her anxiety was so severe that she could not “interact normally with people.” Tr. 326. She wrote that she could not look at people or focus her mind, and she had panic attacks and got confused and exhausted “even when nothing is happening to me.” Tr. 326. She wrote that her anxiety affected her sleep to the point that she could go a whole night without sleeping. Tr. 326. She wrote that she got migraines and tension headaches, which “leave me unable to move.” Tr. 326. She wrote that she got headaches “13-19 times a month.” Tr. 326.
Plaintiff wrote that on a typical day, she would make tea or coffee, clean, and avoid her mother by running away when she heard the car enter the garage. Tr. 327. She wrote that she avoided phone calls and visitors. Tr. 327. She wrote that she would read or write and go online to learn things, or go into the backyard to water plants. Tr. 327. She wrote, “I have hidden under bushes to avoid people, or stayed in my room for days at a time.” Tr. 327. She wrote that she only slept about 4 or 5 hours per night. Tr. 327.
Plaintiff reported that she could take care of a pet, but her mother helped her. Tr. 327. She did not need reminders to take care of her personal needs and grooming. Tr. 328. She did need reminders to take medicine. Tr. 328. She prepared meals, but they were generally TV dinners. Tr. 328. She described her eating habits as “erratic[].” Tr. 328. Plaintiff reported that she could also clean, wash dishes, vacuum, and water plants. Tr. 329. She spent about two hours a day on chores and needed encouragement, but sometimes she did not have the energy get out of bed. Tr. 329. She rarely went outside because she got panic attacks, and she did not go out alone. Tr. 329. She shopped in stores “when I can, for a few minutes.” Tr. 329.
Plaintiff’s hobbies were gardening, writing, horticulture, collages, and TV. Tr. 330. She described “mixed results” in how well she could do them. Tr. 330. She wrote, “I don’t go outside,” since her disability began. Tr. 330. She wrote that she did everything with her partner but did not do activities with other people. Tr. 330. Plaintiff wrote that she had problems getting along with “abusive family.” Tr. 331. She reported a “total shutdown of social skills.” Tr. 331. She wrote that she could pay attention for an hour but did not finish what she started. Tr. 331. She followed written instructions “fairly well,” but followed spoken instructions “poorly.” Tr. 331. She wrote that she did not get along well with authority figures. Tr. 331. She wrote that she did not handle stress or changes in routine well. Tr. 332. She wrote that she could not talk to people because of paranoia, and she avoided them. Tr. 332.
At her hearing, Plaintiff testified that she still got migraines. Tr. 42. She said that when she got a migraine, she got a headache and nausea, and it affected her thinking. Tr. 42. She also had sensitivity to noise and lights during a migraine. Tr. 42. Plaintiff testified that she was taking Sumatriptan and Baclofen for her migraines. Tr. 42. She said that with medication, she could go a week or two without getting a migraine, or she could have a migraine every day for two weeks. Tr. 43. She stated that she could “[n]ot really” do other activities when she had a migraine. Tr. 44. She would lie down in a quiet place at home. Tr. 44-45. Plaintiff testified that she was living at a domestic violence shelter and had been there for about nine or ten months. Tr. 45. She was at the shelter because she had been in an abusive relationship, and her ex-partner took her daughter and disappeared. Tr. 46.
Plaintiff testified that she was receiving mental health treatment but was not currently taking medication for her mental health. Tr. 46-47. She explained that she had taken psychiatric medications in the past and they “either did not work or did harm,” so she avoids them. Tr. 47. She testified that she was quiet and did not like confrontation, and stated, “I just try to avoid people in general as much as I possibly can.” Tr. 47. She had a roommate at the domestic violence shelter. Tr. 47. She testified that she could get along with people, but stated, “I get very nervous, and I can get worked up and panicky.” Tr. 48.
The ALJ concluded:
While I find the claimant’s medically determinable impairments could reasonably be expected to cause some of the claimant’s alleged symptoms, the claimant’s
statements concerning the intensity, persistence, and limiting effects of these symptoms are not entirely consistent with evidence in the record. The claimant’s statements are inconsistent because the claimant’s alleged limitations are unsupported by objective medical evidence. Instead, the evidence shows a lower level of limitation than alleged.Tr. 20. The ALJ also stated, “The claimant’s mental impairments are less limiting than alleged because, despite the claimant’s mental impairments, her mental status exams show less limitation than alleged, she can interact with others, and she engages in normal activities of daily living.” Tr. 21. The ALJ thus discounted Plaintiffs’ symptom testimony based on her activities and the objective medical record.
A. Activities of Daily Living
The ALJ found that Plaintiff’s testimony was inconsistent with some of her activities of daily living. Tr. 21. Contradiction with a claimant’s activities of daily living is a clear and convincing reason for rejecting a claimant’s testimony. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). There are two grounds for using daily activities to support an adverse credibility determination: (1) when activities meet the threshold for transferable work skills, and (2) when activities contradict a claimant’s other testimony. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). In order to impact a claimant’s credibility, the activity has to be “inconsistent with claimant’s claimed limitations.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). The ALJ cannot mischaracterize statements and documents in the record or take these out of context in order to reach his or her conclusion on the claimant’s credibility. Id. at 722-23. In addition, the claimant’s ability to perform limited basic daily activities is not a clear and convincing reason to reject a claimant’s testimony. Seeid. at 722 (“[D]isability claimants should not be penalized for attempting to lead normal lives in the face of their limitations.”); Webb v. Barnhart, 433 F.3d 683, 688 (9th Cir. 2005) (“The mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from [her] credibility as to [her] overall disability. One does not need to be utterly incapacitated in order to be disabled.”) (internal quotation omitted).
The ALJ discounted Plaintiff’s testimony about her mental and social limitations because “she can interact with others” and “she engages in normal activities of daily living.” Tr. 21. He stated, “despite the claimant’s alleged difficulty interacting with others, she lived with a significant other and she had multiple relationships throughout the relevant period[.]” Tr. 21. He also noted that Plaintiff “shops for groceries, she interacts with her providers, and she testified without difficulty, giving a detailed narrative and responding to questions about her employment history and medical record[.]” Tr. 21. Finally, he stated that Plaintiff “returned to school, she considered working as a caregiver or park ranger, and her provider found she was able to do activities of daily living without restriction[.]” Tr. 21.
Defendant argues that Plaintiff waived her argument challenging these activities as related to her symptom testimony. Def. Br. 9. Even if Plaintiff’s argument about her subjective symptom testimony were considered insufficient to raise the issue, Defendant has raised the issue by relying on the activities.
As to interacting with others, the ALJ relied on therapy notes from 2021 in which Plaintiff mentioned that she had a boyfriend. Tr. 707, 711. In those same notes, Plaintiff identified that she had trouble setting boundaries in her relationship and worried about saying “no” to her boyfriend’s request that she move to a different city. Tr. 707. Plaintiff also explained that the father of her child was abusive and that her daughter did not live with her. Tr. 711. Plaintiff’s therapy notes from 2021 reflect that she struggled with relationships. During intake for her therapy, Plaintiff reported having no healthy and stable relationships of any kind. Tr. 736. At a session in May 2021, she reported “feeling a pattern of exploitation, even by boyfriends, throughout her life.” Tr. 729. That same month, she told her therapist that she did not like being alone. Tr. 726. Plaintiff’s therapy records are consistent with her statements in her function report that she did not go out alone and that she did things with her partner but not with other people. They do not contradict her testimony that she avoided people other than her partner and became confused and overwhelmed in dealing with people other than her partner. Plaintiff’s relationships are not a valid basis to discount her symptom testimony.
The ALJ’s reliance on Plaintiff’s ability to shop for groceries is also misplaced. Plaintiff reported that she shopped in stores “when I can, for a few minutes.” Tr. 329. The ALJ failed to explain how that contradicts any of her testimony about her social limitations. Likewise, Plaintiff’s ability to interact with health care providers to seek treatment is not a valid basis to discount her symptom testimony. Plaintiff did not testify to any difficulty interacting with health care providers. Her ability to occasionally go to medical appointments in order to obtain needed treatment does not contradict her symptoms. Plaintiff’s ability to do basic activities of daily living such as buying groceries or going to a doctor’s appointment does not undermine her testimony.
Finally, the ALJ relied on Plaintiff’s return to school and consideration of working as a caregiver or park ranger. Tr. 21. The ALJ overstated this evidence and took it out of context. In June 2021, Plaintiff reported to her therapist that “she feels that the socially constructed world is exhausting to navigate and she prefers the freedom of nature.” Tr. 724. The therapist then reported that she “explored with [Plaintiff] options for outdoor jobs, such as park ranger, and also asked about her going back to school[.]” Tr. 724. Evidence that Plaintiff’s therapist suggested possible career or education options in an effort to motivate Plaintiff does not undermine Plaintiff’s testimony. Nothing in the record shows that Plaintiff pursued a career as a park ranger. Similarly, in October and November 2021, Plaintiff reported “a job opportunity as a caregiver to an elderly neighbor of her mom,” Tr. 694, 699. But she testified at the hearing that “nothing ever came of it.” Tr. 55. As for school, Plaintiff testified that when she was living in Utah, “I did try again to go back to school and again I got too stressed out to keep going. I dropped out a second time.” Tr. 57. Plaintiff’s failed attempt to go back to school does not undermine her testimony about her mental health symptoms or social limitations. In sum, the ALJ erred in relying on Plaintiff’s activities in discounting her symptom testimony.
B. Objective Medical Evidence
The ALJ found that the objective medical record undermined the degree of limitation Plaintiff alleged. Tr. 21. An ALJ may discount a claimant’s testimony based on a lack of support from objective medical evidence, but this may not be the sole reason. See Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (holding that “an ALJ may not reject a claimant’s subjective complaints based solely on a lack of medical evidence to fully corroborate the alleged severity of pain.”); Taylor v. Berryhill, 720 F. App’x 906, 907 (9th Cir. 2018) (explaining that a “lack of objective medical evidence cannot be the sole reason to discredit claimant’s testimony,” and therefore holding that the ALJ failed to provide clear and convincing reasons for discounting the claimant’s testimony) (citation omitted); Heltzel v. Comm’r of Soc. Sec. Admin., No. 19-1287, 2020 WL 914523, at *4 (D. Ariz. Feb. 26, 2020) (stating that “[b]ecause the ALJ’s other reasons for rejecting Plaintiff’s testimony were legally insufficient, a mere lack of objective support, without more, is insufficient to reject Plaintiff’s testimony.”). 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).
The ALJ stated that Plaintiff’s mental impairments were less limiting than she alleged because “her mental status exams show less limitation than alleged.” Tr. 21. The ALJ relied on mental status exams showing:
the claimant is generally alert and oriented; she is polite, appropriate, and pleasant; her thought process is logical; her perception is normal; her cognition is normal; her insight is excellent; her judgment is intact; her speech is fluent; her affect is normal; she is appropriately groomed; she engaged with her providers; and her memory is within normal limits.Tr. 21.
The ALJ also recognized that “the record shows a history of psychiatric illness and limitations.” Tr. 21. He wrote, “throughout her record, the claimant experienced anger, panic, anxiety, irritability, tearfulness, absentmindedness, insomnia, distractibility, low energy, poor appetite, anhedonia, feeling overwhelmed, and she struggled with self-advocacy.” Tr. 21. As Plaintiff points out, the ALJ recognized many of her symptoms. Pl. Op. Br. 12. The ALJ failed to explain why the findings related to Plaintiff’s demeanor and cognition undermine her symptoms such as panic and anxiety. The ALJ also recognized Plaintiff’s depression. Tr. 16. Courts have repeatedly held that displaying normal cognitive functioning or a calm appearance does not undermine a claimant’s testimony alleging symptoms such as “anxiety and fatigue, and [] frequent panic attacks.” Tammy S. v. Comm’r Soc. Sec. Admin., No. 6:17-CV-01562-HZ, 2018 WL 5924505, at *5 (D. Or. Nov. 10, 2018) (citing Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) (concluding that a therapist’s observations of the claimant’s cognitive functioning during sessions did not contradict claimant’s reported symptoms of depression and social anxiety)). Evidence that Plaintiff was polite and pleasant might undermine evidence of anger and irritability. But Plaintiff testified that because of her social anxiety, she tried to get along with people and avoid conflicts. And the mental status exams do not undermine Plaintiff’s testimony about her depression and anxiety.
The ALJ also wrote, “A portion of the claimant’s record also shows she experienced times without psychiatric symptoms. Namely, in October 2018 and March 2019, the claimant denied tearfulness, anxiety, irritability, or anger[.]” Tr. 21. Because mental health symptoms may wax and wane over time, the ALJ may not “pick out a few isolated instances of improvement . . . and [] treat them as a basis for concluding a claimant is capable of working.” Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). The ALJ did exactly that. The ALJ himself recognized that the longitudinal record showed a variety of mental health symptoms, and then focused on a few visit summaries to discount Plaintiff’s testimony. Tr. 21. Furthermore, the ALJ relied on brief mental status exams in medical appointments that focused on Plaintiff’s physical complaints. Tr. 511, 514, 533. The ALJ identified no sustained improvement in Plaintiff’s anxiety, depression, and social limitations during the relevant period. Reliance on the visit notes was error. In sum, the ALJ erred in relying on the objective medical record in discounting Plaintiff’s symptom testimony.
C. Other Possible Reasons
As Plaintiff acknowledges, the ALJ may have relied on other reasons in discounting Plaintiff’s symptom testimony. Pl. Op. Br. 12-13. The ALJ stated that Plaintiff “was willing to take benzodiazepine or self-medicate with marijuana and cough medicine, but she declined to take antidepressants recommended by her providers[.]” Tr. 21. The ALJ did not expressly rely on this basis in discounting Plaintiff’s symptoms, but it appears he implicitly relied on it. Plaintiff testified that she had taken psychiatric medications in the past and they “either did not work or did harm,” so she avoids them. Tr. 47. Plaintiff asserts that this was a valid reason to decline medication and should have been considered. Pl. Op. Br. 12-13 (citing SSR 16-3p, 2016 WL 1119029, at *10 (“An individual may not agree to take prescription medications because the side effects are less tolerable than the symptoms.”)). Plaintiff repeatedly told her providers that psychiatric medications either had not worked or had caused unpleasant side effects. Tr. 435 (listing specific medications and side effects including aggression, rage, depression, urinary incontinence, and passing out); 520 (reporting no significant benefit from antidepressants); 553 (reporting that medications for mental health conditions had never really been effective). The ALJ failed to address Plaintiff’s testimony or evidence in the record supporting it. Nor did the ALJ explain how Plaintiff’s self-medication undermined her testimony. To the extent the ALJ relied on Plaintiff’s refusal to take medication or choice to self-medicate, this was error.
The ALJ also stated that Plaintiff “never underwent therapy, except when it was provided by the shelter or after the birth of her daughter at the hospital.” Tr. 21. But Defendant relies on evidence that Plaintiff did participate in group therapy when she was hospitalized in September 2015. Def. Br. 6-7, ECF 12 (citing Tr. 431). The ALJ’s conclusion regarding therapy was erroneous. In sum, the ALJ erred in discounting Plaintiff’s testimony about her mental health and social limitations. The case must be remanded for the ALJ to reconsider Plaintiff’s degree of limitation and reevaluate the RFC.
D. Failure to Consider Testimony
The ALJ also erred in considering the effect of Plaintiff’s migraines on her ability to work. As Plaintiff points out, she testified that she suffered from severe migraines that could occur without warning. Pl. Op. Br. 10 (citing Tr. 42-43). Plaintiff testified that her judgment and decisionmaking were impaired when she had migraines. Tr. 42. Although she took medication for the migraines, it did not relieve all of her symptoms. Tr. 44. When she had a migraine, she needed to lie down in a quiet place. Tr. 44-45. The ALJ barely addressed this testimony in his decision. He wrote without elaboration that he considered the migraines. Tr. 16. He mentioned two doctor’s opinions addressing the migraines. Tr. 23, 24. But the ALJ did not state whether he found Plaintiff’s testimony about her migraines credible or address how the migraines would affect her ability to work. As to the migraines, Plaintiff correctly argues that the ALJ erred by failing to identify specific testimony he found not credible or evidence supporting that determination. See Pl. Op. Br. 12 (citing Brown-Hunter, 806 F.3d at 494). On remand, the ALJ must consider Plaintiff’s testimony about her migraines.
II. Medical Opinion Evidence
For claims filed on or after March 27, 2017, ALJs are no longer required to give deference to any medical opinion, including treating source opinions. Rules Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed.Reg. 5844-01 (Jan. 18, 2017); 20 C.F.R. §§ 404.1520c, 416.920c. Instead, the agency considers several factors. 20 C.F.R. §§ 404.1520c(a), 416.920c(a). These are: supportability, consistency, relationship to the claimant, specialization, and “other factors.” 20 C.F.R. §§ 404.1520c(c)(1)-(5), 416.920c(c)(1)-(5). The “most important” factors in the evaluation process are supportability and consistency. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2).
Under this framework, the ALJ must “articulate . . . how persuasive [they] find all of the medical opinions” from each doctor or other source. 20 C.F.R. §§ 404.1520c(b), 416.920c(b)(2). In doing so, the ALJ is required to explain how supportability and consistency were considered and may explain how the other factors were considered. 20 C.F.R §§ 404.1520c(b)(2), 416.920c(b)(2). When two or more medical opinions or prior administrative findings “about the same issue are both equally well-supported . . . and consistent with the record . . . but are not exactly the same,” the ALJ is required to explain how the other factors were considered. 20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3). “Even under the new regulations, an ALJ cannot reject an examining or treating doctor’s opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence.” Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022).
In December 2018, Dr. Suansilppongse reviewed Plaintiff’s case record as a state agency psychological consultant. Tr. 84. He found that Plaintiff had medically determinable depressive and anxiety disorders. Tr. 80. He found that Plaintiff had moderate limitations in the ability to understand, remember, or apply information; interact with others; concentrate, persist, or maintain pace; and adapt or manage herself. Tr. 80. He wrote:
The lay and medical evidence reveals this 32-year-old claimant has history of suicidal thoughts/attempts, transient cognitive dysfunction, mixed emotions (anxiety and depressive reaction, panic attacks, anger outbursts, irritability), social avoidance and impulsive behavior as well as alleged headaches and marijuana use. There is no evidence of significant thought disorder or cognitive deficit. Her ADLs are largely limited due to alleged mental and physical restrictions. Occasionally she needs reminder to take medications.Tr. 80.
Dr. Suansilppongse found that Plaintiff was not significantly limited in her ability to remember locations and work-like procedures or understand and remember very short and simple instructions. Tr. 82. He found that Plaintiff was moderately limited in her ability to understand and remember detailed instructions. Tr. 82. He wrote, “The claimant is able to understand and remember simple instructions.” Tr. 82. Similarly, Dr. Suansilppongse found that Plaintiff was not significantly limited in her ability to carry out very short and simple instructions, but was moderately limited in her ability to carry out detailed instructions and maintain attention and concentration for extended periods. Tr. 82. He wrote, “The claimant is able to carry out simple instructions. Her anxiety and depressive reaction as well as alleged headaches would occasionally interfere with her ability for sustained concentration and persistence for task completion. However, the claimant would be able to complete tasks at an acceptable pace.” Tr. 83.
In terms of social interaction, Dr. Suansilppongse wrote that Plaintiff’s “social avoidance and infrequent episodes of panic attacks, anger outbursts, irritability and impulsive behavior would occasionally interfere with her ability to interact appropriately with supervisors, coworkers or the public. However, she would be able to complete tasks with infrequent contact with others.” Tr. 83. Dr. Suansilppongse also opined that Plaintiff’s “transient cognitive dysfunction and marijuana use would occasionally interfere with her ability to set realistic goals or make plans independently of others.” Tr. 83. Finally, Dr. Suansilppongse wrote, “The claimant has mental capacity for simple work related activity (1-2 steps tasks) with infrequent interactions with coworkers and the public.” Tr. 84.
In evaluating Dr. Suansilppongse’s opinion, the ALJ wrote:
This opinion is based on a review of the claimant’s medical evidence and a thorough understanding of evidentiary requirements and policies that govern this decision. As such, this opinion is supported by the claimant’s history of neck [sic] emotions, including anxiety, depression, panic, anger, and irritability, as well as her history of drug use. This opinion is also supported by the claimant’s lack of evidence to support any significant thought disorder or cognitive deficit. Furthermore, this opinion is consistent with the claimant’s ability to live with others, shop for groceries, and have a relationship with her significant other. Therefore, this opinion is persuasive, with the exception of the claimant’s ability to perform only one-two step instructions.Tr. 22-23 (citation omitted).
Plaintiff argues that the ALJ erred in rejecting the limitation to one- and two-step tasks without any explanation. Pl. Op. Br. 6. Defendant counters that the limitation was unsupported because, as the ALJ pointed out, the record did not show any significant thought disorder or cognitive deficit. Def. Br. 11. This argument misses the mark. Dr. Suansilppongse found that Plaintiff had limitations in her ability to carry out tasks based on her anxiety, depression, and headaches. Tr. 83. He did not base the task limitation on a cognitive defect. In contrast, he found that Plaintiff’s “transient cognitive dysfunction . . . would occasionally interfere with her ability to set realistic goals or make plans independently of others.” Tr. 83. In short, Dr. Suansilppongse found that Plaintiff’s cognitive limitation affected her ability to plan, while her anxiety, depression, and headaches affected her ability to complete tasks.
Defendant also argues that Dr. Suansilppongse’s limitation to one- to two-step tasks was inconsistent with other medical records. Def. Br. 11. Defendant points to the opinion of Dr. Richard Grow, Ed.D. Id. at 12. But the ALJ’s assessment of Dr. Grow’s opinion shows that he did not find it persuasive. Tr. 23. There is no basis to conclude that the ALJ relied on it. Defendant also argues that Plaintiff’s medical records and activities undermine the limitation, pointing to Plaintiff’s mental status exams, brief periods without psychiatric symptoms, ability to live with a significant other, two failed attempts at returning to school, ability to ride the bus and go shopping, and consideration of work as a park ranger or caregiver. Def. Br. 12. Defendant argues that this evidence “includes activities involving multi-step activities, [and] is consistent with the ALJ’s RFC that Plaintiff was capable of understanding, remembering, carrying out, and maintaining attention and concentration for simple tasks and instructions[.]” Id. As discussed above, the ALJ erred in relying on Plaintiff’s activities and the medical record in discounting Plaintiff’s testimony about her mental and social limitations. Dr. Suansilppongse based Plaintiff’s task limitations on her mental health, so this evidence is equally unavailing in serving to undermine his assessment. And as Plaintiff points out, it is unclear that the ALJ relied on any of this evidence in discounting Dr. Suansilppongse’s opinion about the task limitation. Pl. Reply 4-5, ECF 13.
Next, Defendant relies on this Court’s recent decision in Rachel J. v. Commissioner,Social Security Administration, No. 6:22-CV-00158-HZ, 2023 WL 5770621, at *3-*4 (D. Or. Sept. 6, 2023). Def. Br. 13. In Rachel J., a state agency doctor limited the plaintiff to “simple, repetitive tasks” based on her anxiety and “two-step commands” based on her limited recall. 2023 WL 5770621, at *3. Finding the opinion contradictory, the ALJ accepted the former restriction and rejected the latter because the doctor had found that the plaintiff could understand, remember, and carry out more detailed instructions. id. The ALJ also found that the plaintiff had consistently shown normal memory during her examinations for the period during which she claimed to have memory loss. id. at *4. The Court therefore concluded that the ALJ did not err in finding the limitation to two-step commands unsupported by the record. id.
Plaintiff correctly asserts that Rachel J. is different from the present case. Pl. Reply 5. Here, the ALJ identified no contradiction in Dr. Suansilppongse’s opinion. And the ALJ identified no valid basis to discount the task limitation. It appears that the ALJ found persuasive the opinion that Plaintiff can carry out only simple instructions but then rejected the specific limitation to one- to two-step instructions. Tr. 22-23. Defendant suggests that the latter limitation was inconsistent with Plaintiff’s mental status examinations. Def. Br. 13. But the ALJ did not mention the mental status examinations in assessing Dr. Suansilppongse’s opinion. Tr. 22-23. The ALJ did mention Plaintiff’s history of “anxiety, depression, panic, anger, and irritability” in assessing the opinion. Tr. 22. It thus appears that the ALJ credited the conditions that served as the basis of the task limitation. The mental status examinations do not undermine Plaintiff’s anxiety and depression, as discussed above.
Defendant argues that the ALJ’s decision should be affirmed because his “‘path may reasonably be discerned.’” Def. Br. 13 (citing Molina, 674 F.3d at 1121). To the extent the ALJ’s path may reasonably be discerned, it was an erroneous path. Defendant first points to the ALJ’s reliance on a lack of a significant thought disorder or cognitive deficit. Def. Br. 13. As stated above, the task limitation was not based on cognitive deficits or thought disorders. Defendant then points to various activities such as shopping for groceries and argues that they “could necessarily involve more than one- and two-step tasks.” Id. As Plaintiff points out, the record does not support that conclusion. Pl. Reply 4-5. It is unclear that the ALJ relied on the listed activities in rejecting the limitation to one- and two-step tasks. Even if he did, the Court has already held that Plaintiff’s activities were not a valid basis to discount Plaintiff’s testimony about her mental health limitations. In sum, the ALJ erred in rejecting Dr. Suansilppongse’s limitation to one- and two-step tasks.
Plaintiff argues that the error is harmful because the jobs the ALJ identified require a reasoning level that conflicts with the limitation to one- and two-step tasks. Pl. Op. Br. 7. Based on the testimony of the vocational expert (“VE”), the ALJ found that Plaintiff could work as a dishwasher, Dictionary of Occupational Titles (“DOT”) job code 318.687-010; laundry worker, DOT job code 361.685-018; and industrial cleaner, DOT job code 381.687-018. Tr. 25. Plaintiff correctly states that all three jobs require Reasoning Level Two. Pl. Op. Br. 7-8. Reasoning Level Two requires a worker to “[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions. Deal with problems involving a few concrete variables in or from standardized situations.” Dictionary Of Occupational Titles, Appendix C: Components of the Definition Trailer, available at https://occupationalinfo.org/appendxc_1.html (defining DOT reasoning levels). Reasoning Level One requires a worker to “[a]pply commonsense understanding to carry out simple one- or two-step instructions. Deal with standardized situations with occasional or no variables in or from these situations encountered on the job.” Id. The Ninth Circuit has held that there is an apparent conflict between an RFC limiting a claimant “to performing one- and two-step tasks, and the demands of Level Two reasoning[.]” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1003 (9th Cir. 2015). Thus, Plaintiff correctly asserts that the ALJ’s rejection of the limitation resulted in harmful error at step five. Pl. Op. Br. 8. The case must therefore be remanded. The Court next considers whether the remand should be for further proceedings or an award of benefits.
III. Nature of Remand
Plaintiff asks the Court to fully credit her symptom testimony and Dr. Suansilppongse’s opinion as true and remand the case for an award of benefits. Pl. Op. Br. 13; Pl. Reply 6-8. Defendant argues that if the ALJ harmfully erred, the Court should remand for further proceedings. Def. Br. 14-16. The Court concludes that further proceedings are required.
To determine whether it is appropriate to remand for payment of benefits or for further proceedings, the Ninth Circuit uses a three-part test. Garrison, 759 F.3d at 1020; Treichler v. Comm'r Soc. Sec. Admin., 775 F.3d 1090, 1100 (9th Cir. 2014). First, the ALJ must fail to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion. Garrison, 759 F.3d at 1020. Second, the record must be fully developed, and further administrative proceedings would serve no useful purpose. id. Third, if the Court remands the case and credits the improperly discredited evidence as true, the ALJ would be required to find the claimant disabled. id. To remand for an award of benefits, each part must be satisfied. id. The “ordinary remand rule” is “the proper course,” except in rare circumstances. Treichler, 775 F.3d at 1099-100. In deciding whether to remand for further proceedings or payment of benefits, the district court should consider whether the claimant’s testimony was inconsistent with the medical evidence, or whether the government has pointed to evidence that the ALJ overlooked. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015).
The first requirement is met. The ALJ failed to give legally sufficient reasons to reject Plaintiff’s testimony and Dr. Suansilppongse’s opinion. These errors call into question the completeness of the RFC and Plaintiff’s ability to perform the jobs the ALJ concluded she could perform. The Court concludes that the second requirement is not met. As Plaintiff acknowledges, further proceedings are needed when there are specific “inconsistencies, conflicts, and gaps in the record.” Pl. Reply 8 (citing Dominguez, 808 F.3d at 410). There is a gap in the record as to Plaintiff’s migraines, because the ALJ did not articulate his assessment of them or, as far as the Court can discern, consider the effect of them in posing a hypothetical to the VE. It is unclear what limitations would need to be added to the RFC based on the migraines. It is also unclear what limitations would need to be added to the RFC if Plaintiff’s testimony about her social and mental health conditions were fully credited as true. The ALJ, not this Court, is responsible for formulating the RFC. Dominguez, 808 F.3d at 409.
Defendant correctly points out that VE testimony is necessary to establish whether Plaintiff can perform other work in the national economy given her nonexertional limitations. Def. Br. 16 n.3 (citing Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007)). At the hearing, the VE testified in response to the ALJ’s questions that the following potential additional limitations would eliminate competitive employment: (1) missing two or more days of work per month, (2) being off task 10% or more of the time, (3) being unable to consistently sustain even ordinary routines or make even simple work-related decisions, and (4) tolerating no more than rare interaction with supervisors. Tr. 61-62. It is unclear which of Plaintiff’s conditions were the basis of the ALJ’s consideration of these limitations. In response to a question from Plaintiff’s counsel, the VE testified that if a person had inappropriate interactions with others in the workplace that would take the person off task or result in the inability to complete the essential functions of the job, it would eliminate competitive work. Tr. 64. The record thus reflects that additional potentially relevant limitations would eliminate Plaintiff’s ability to work, but it is unclear which, if any, of these limitations should be included in the RFC. The limitation to one-and two-step tasks was not posed to the VE, so its effect on Plaintiff’s ability to work is unknown. The Court therefore remands this case for further administrative proceedings.
CONCLUSION
Based on the foregoing, the Commissioner’s decision is REVERSED and REMANDED for administrative proceedings.
IT IS SO ORDERED.