Opinion
CV-22-00028-TUC-JAS (JR)
02-02-2023
Michael Pickering, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable Jacqueline M. Rateau, United States Magistrate Judge.
Pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), Plaintiff Michael Pickering (“Pickering”) seeks judicial review of a final decision by the Commissioner of Social Security (“Commissioner”). The matter was referred to the undersigned for Report and Recommendation and is ripe for review. (Doc. 13, 22, 24-25.) Based on the pleadings and the administrative record (“AR”), the Magistrate Judge recommends the District Court reverse the decision of the ALJ and remand this matter for the immediate calculation and payment of benefits.
BACKGROUND
Procedural History
On December 11, 2018, Pickering filed an application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (Act), 42 U.S.C. §§ 416(i), 423(d), alleging a disability onset date of July 14, 2017. (AR 25.) His application was denied initially and on reconsideration. (AR 87-103, 123-142.) On September 25, 2020, a hearing was held before an Administrative Law Judge (“ALJ”). (AR 48-86.) In a decision dated December 14, 2020, the ALJ determined Pickering was not disabled. (AR 25-42.) Pickering's request for review by the Appeals Council was denied thus making the ALJ's decision final for judicial review. (AR 1-4.) See 42 U.S.C. §§ 405(g), 1383(c)(3).
The ALJ's Decision
At step one, the ALJ determined Pickering had not engaged in substantial gainful activity since July 14, 2017, the alleged onset date. (AR 27.) At step two, the ALJ determined Pickering suffered from the severe impairments of lumbar degenerative disc disease, lumbar spinal stenosis, bilateral shoulder rotator cuff tears, generalized anxiety disorder, schizoaffective disorder, bipolar type and post-traumatic stress disorder. (AR 28.) At step three, the ALJ determined Pickering did not suffer from an impairment or combination of impairments that met or equaled a listed impairment. (AR 29-31.) After step three but before step four, the ALJ determined Pickering's residual functional capacity (“RFC”) as follows:
[T]he claimant ha[s] the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except: the claimant can only occasionally reach overhead with his non-dominant right upper extremity. The claimant can only frequently reach overhead with his dominant left upper extremity. The claimant must avoid concentrated exposure to extreme cold, to vibration, and to hazards such as operational control of moving machinery, and unprotected heights. The claimant is limited to only occasional interaction with the general public. He is also limited to only occasional work-related, non-personal, non-social interaction with co-workers and supervisors.(AR 31.) At step four, the ALJ determined that Pickering is unable to perform any past relevant work. (AR 39.) At step five, the ALJ found Pickering able to perform other work such as a table worker, lens block gauger and document preparer. (AR 40-41.)
Relevant Factual History
Pickering, born in 1971, was a younger person in the eyes of the administration as of the alleged onset date. (AR 40.) He has some college education, HVAC training, and a driver's license. (AR 54-55.) He is 6' 3” tall and weighs 285 pounds. (AR 55.)
His past relevant work includes a heavy job as a garage door installer, medium jobs as a molding cutter, an air conditioner assembler and a laborer, and a light job as a band saw operator. (AR 39.) Pickering had surgery on his right shoulder in either 2005 or 2006. (AR 60.) He stopped working in 2017 due to an on the job right shoulder injury and left shoulder pain. (AR 59.) He had surgery on his left shoulder in August 2019. (AR 60.) Pickering's back pain began in June 2019 and has progressively worsened. (AR 63.)
Pickering can perform personal care and shop for himself, but his sister helps him unload his groceries and bottles of water. (AR 67.) Pickering's sister also helps him do household chores and his laundry. (AR 69.) He plays video games during the day during which he has to take breaks and lie down after an hour, or an hour and a half. He lies down for 20 to 45 minutes at a time for a total of about three hours throughout a typical day. (AR 68-71.) His back pain increases after about five minutes of standing. (AR 68.)
On July 7, 2019, Pickering saw spinal surgeon Shawn Hermenau, M.D., in consultation for low back pain. (AR 746.) At that time, Pickering had undergone six weeks of physical therapy for his low back but continued to suffer persistent back pain and leg pain with most activities of daily living.” (AR 746.) Pickering was recorded as having “severe disc degeneration at the L4-5 level with retrolisthesis of L4 on L5 secondary to facet arthropathy with axial back pain and radicular symptoms.” (AR 749.)
At an August 2019 follow up visit, Dr. Hermenau observed that Pickering had mild tenderness to palpation of the paraspinal muscles and reduced lumbar range of motion. (AR 752.) Dr. Hermenau reviewed an August 2019 lumbar MRI that showed L4-5 moderate central canal stenosis secondary to facet arthropathy, L3-4 retrolisthesis with severe facet arthropathy and signs of dynamic instability. Id. Dr. Hermenau recorded that Pickering had severe disc degeneration at ¶ 4-5, had failed to improve with nonoperative care, and recommended that he undergo posterior lumbar fusion at ¶ 3-4 and L4-5. (AR 754.)
In a September 9, 2020 progress note, Dr. Hermenau recorded that based on an MRI that was “over one year old,” Pickering “has lumbar instability at the L3-4 level, moderate disc degeneration at this level, and lumbar stenosis at the L3-4 level.” (AR 1925.) Dr. Hermenau noted, “At the L4-5 level, he has retrolisthesis of L4 on L5 with severe disc degeneration and again at least moderate stenosis.” Id. Based on this “old MRI,” Dr. Hermenau recommended a posterior lumbar fusion of L3 to L5 with lumbar laminectomy,” if indicated in an updated MRI. Id. Dr. Hermenau noted Pickering “is still taking chronic narcotic medications” and that he “is still obese and he is unable to lose weight.” (AR 1926.)
On September 28, 2020, Pickering underwent another MRI. (AR 1932-1933.) A September 29, 2020, progress note records the MRI images as showing “severe facet arthropathy at the L3-4 level.” (AR 1929.) The progress note also records apparent “patulent facet and likely incompetent facet joints” and “some mild to moderate stenosis” at the L3-4 level. Id. Dr. Hermenau recommended a “lumbar laminectomy of L3, L4, and L5.” (AR 1930.)
At the administrative hearing, Pickering advised the ALJ that he was scheduled to undergo spinal surgery about a month after the hearing and presumably he underwent his lumbar laminectomy of L3, L4, and L5 on October 6, 2020. (AR 62.)
On September 23, 2020, Dr. Hermenau completed an Assessment of Physical Impairments and Limitations form for Pickering. (AR 1913-1914.) Dr. Hermenau opined that due to Pickering's lumbar instability, lumbar disc degeneration, lumbar stenosis and his back and leg pain, he could sit for about two (2) hours total in an 8-hour workday (with normal breaks). (AR 1913.) Dr. Hermenau opined Pickering could stand or walk less than two (2) hours total in an 8-hour workday (with normal breaks). Id. He opined that it is medically necessary for Pickering to alternate between standing, walking and sitting every 21-45 minutes. Id. According to Dr. Hermenau Pickering also needs to take unscheduled breaks for 10 minutes, every two (2) hours in an 8-hour workday. Id. Pickering is limited to lifting less than 20 pounds. Id. Dr. Hermenau opined that Pickering can only twist occasionally (21% to 33%) of the time but that he can balance frequently (34% to 66%) of the time. Id. Dr. Hermenau indicated that Pickering would be absent from work due to his spinal condition approximately 2-3 day per month. (AR 1914.) In rendering his opinion, Dr. Hermenau considered and reviewed his own treatment notes as well as records from other providers, lab reports and imaging. Id.
According to the vocational expert (“VE”) who testified at the hearing, if a person had the limitations assessed by Dr. Hermenau that person would be unable to perform any work. (AR 83.) Also according to the VE, if a person were required to take unscheduled breaks throughout the workday that totaled up to three hours of an eight-hour day, the person could not sustain work. (AR 83-84.)
STANDARD OF REVIEW
The Commissioner employs a five-step sequential process to evaluate DIB claims. 20 C.F.R. pt. 404.1520a; see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To establish disability the claimant bears the burden of showing she (1) is not working; (2) has a severe physical or mental impairment; (3) the impairment meets or equals the requirements of a listed impairment; and (4) claimant's RFC precludes her from performing her past work. 20 C.F.R. § 404.1520(a)(4). At step five, the burden shifts to the Commissioner to show that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant “disabled” or “not disabled” at any point in the five-step process, she does not proceed to the next step. 20 C.F.R. pt. 404.1520(a)(4).
“The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to deny benefits only “when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is so because the ALJ “and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019 (quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner's decision, however, “cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)).
A claimant is disabled for the purpose of receiving benefits if she is unable to engage in any substantial gainful activity due to an impairment which has lasted, or is expected to last, for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. pt. 404.1505(a). "The claimant bears the burden of establishing a prima facie case of disability." Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996).
ISSUES ON REVIEW
Pickering's appeal is based on his physical impairments and he raises two issues for review. (Doc. 22 at 3.) First, Pickering claims the ALJ erred in rejecting Dr. Hermenau's opined limitations. (Doc. 22 at 1.) Second, Pickering claims the ALJ failed to support his reduced credibility determination with specific, clear and convincing reasons. Id. at 2. The Commissioner argues against Pickering's claims of error. (Doc. 24.)
As more fully explained below, this Court agrees with Pickering. Accordingly, this Court recommends that the decision of the ALJ be reversed and this case be remanded for immediate calculation and payment of benefits.
DISCUSSION
Dr. Hermenau's Opinion
The ALJ found Dr. Hermenau's opinion partially persuasive, reasoning:
Shawn Hermenau, M.D., treating source (23F), opined on the claimant's functioning in September 2020. Dr. Hermenau opined, e.g., that the claimant will miss work two-to-three days per month. He also said that the claimant can only occasionally ‘twist.' Dr. Hermenau said further that the claimant cannot even stand and walk for two hours in an eight-hour workday. Dr. Hermenau also opined, though, that the claimant will have no significant limitations in reaching, handling, and fingering. (23F). Dr. Hermenau's statements are partially persuasive. The undersigned specifically finds persuasive Dr. Hermenau's assertion that the claimant will be able to lift and carry more than ten pounds. The Administrative Law Judge also finds persuasive Dr. Hermanau's conclusion that the claimant will have no significant limitations in reaching, handling, and fingering. Those conclusions are broadly consistent with the objective documentation of record, including observations of the claimant revealing normal general musculoskeletal range of motion (4F/11, 23; 5F/11, 207; 17F/11, 39; 18F/5, 13, 18, 71, 79, 163, 194). The undersigned, though, finds the remainder of Dr. Hermenau's statements not persuasive. Dr. Hermenau's opinions are first not well supported. These statements are not well explained. At least some of these assessments are additionally undefined, including his articulation regarding ‘twisting.' These conclusions moreover do not evidence consideration of the claimant's whole documentation of record. Finally, the remainder of Dr. Hermenau's articulations are not consistent with the medical evidence of record, including observations of the claimant ambulating normally (1F/13; 9F/12, 18; 25F/6, 10). The remainder of Dr. Hermenau's articulations are also not consistent with, e.g., the claimant's normal back examinations (4F/6).(AR 38.)
Pickering urges that the ALJ erred failing to explain how he considered the supportability and consistency factors when he considered Dr. Hermanau's assessment of Pickering's limitations. (Doc. 22 at 12-14.) He also urges that the ALJ improperly relied upon “normal ambulation” and “normal back examination” findings documented in Pickering's medical records related to his shoulder and other conditions despite more limited findings documented in medical records related to his back condition. Id. at 14-16. The Commissioner defends the ALJ's consideration of Dr. Hermenau's opinion. (Doc. 24 at 4-8.)
Pickering filed his claim after March 27, 2017 and the revised regulations apply to his case. (AR 25.) See 20 C.F.R. pts. 404 & 416. “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). “The agency must ‘articulate . . . how persuasive' it finds ‘all of the medical opinions' from each doctor or other source, 20 C.F.R. pt. 404.1520c(b), and ‘explain how [it] considered the supportability and consistency factors' in reaching these findings, id. § 404.1520c(b)(3).” Id.
Supportability refers to the amount of relevant objective medical evidence and supporting explanations provided by the medical source. 20 C.F.R. pts. 404.1520c(c)(1), 416.920c(c)(1). “Consistency means the extent to which a medical opinion is ‘consistent . . . with the evidence from other medical sources and nonmedical sources in the claim.' [20 C.F.R. pt.] 404.1520c(c)(2).” Woods, 32 F.4th at 792. The “more consistent a medical opinion(s) or prior administrative medical finding(s) is with” the record, “the more persuasive” the opinion or finding will be. 20 C.F.R. pts. 404.1520c(c)(2), 416.920c(c)(2).
As explained below, this Court agrees with Pickering that the ALJ's determination that Dr. Hermenau's opinion is only partially persuasive is not supported by substantial evidence.
As mentioned, Dr. Hermenau opined that Pickering is unable to sustain standing or walking for more than two hours in an eight-hour workday due to his lumbar instability, lumbar disc degeneration, lumbar stenosis and leg and back pain. (AR 1913.) Dr. Hermenau's opinion is based upon his treatment records as well as his review of Pickering's medical records and imaging. (AR 1914.) The ALJ, however, found Dr. Hermenau's opined limitations only partially persuasive concluding that Dr. Hermenau's opined limitations “not consistent with . . . observations of the claimant ambulating normally” and “not consistent with . . . the claimant's normal back examinations.” (AR 38.)
This Court agrees with Pickering that the ALJ's finding that Dr. Hermenau's assessment is inconsistent with records of Pickering's normal ambulation is not supported by substantial evidence. That Pickering was observed to ambulate normally is not inconsistent with Dr. Hermenau's opinion that he is unable to sustain standing or walking for more than two hours in an eight-hour workday. Indeed, the ALJ failed to offer any explanation in support of his finding that Pickering's ability to ambulate is inconsistent with Dr. Hermenau's opinion that he is unable to walk or stand for more than two hours in an eight-hour workday. See, e.g., Maske v. Comm'r. of Soc. Sec. Admin., No. CV-18-04891-PHX-DWL, 2020 WL 813768, at *5 (D. Ariz. Feb. 16, 2020) (finding ALJ improperly “failed to build a logical bridge between the evidence and her conclusions”).
The ALJ also relied on a medical record regarding Pickering's shoulder condition to determine that Dr. Hermenau's opinion regarding Pickering's inability to stand or walk more than two hours in an eight-hour workday is less persuasive. (AR 394 (August 29, 2017 medical record regarding shoulder). The Commissioner urges that the ALJ did not err in doing so reasoning that medical records noting normal back findings are valid findings even if Pickering was receiving care for a different condition when the normal back findings were documented. (Doc. 24 at 7, n.3.) This Court disagrees with the Commissioner.
Under the revised regulations, an ALJ is required to explain how supportable and persuasive a physician's opinion is. Here, the ALJ relied upon medical records relating to Pickering's shoulder conditions to find that Pickering's spinal surgeon's opinion is less persuasive and he did so without any explanation as to why the shoulder medical record was more persuasive. Similarly, the ALJ offered no rationale for his finding that records of Pickering's normal ambulation were more persuasive and consistent with the medical evidence of record than Dr. Hermenau's opinion on Pickering's inability to stand or walk more than two hours in an eight-hour workday. The ALJ's failure to offer any rationale for his less persuasive determination is erroneous. See Curtis v. Comm 'r. of Soc. Sec. Admin., No. CV-18-00649-PHX-DGC, 2018 WL 6418486, at *7 (D. Ariz. Dec. 6, 2018) (finding ALJ erred by rejecting claimant's symptom testimony based on observations of “normal range of motion of all four extremities,” because “the ALJ fails to explain why the abnormal findings do not support Plaintiff's general pain testimony or why the normal findings should be given more weight than the abnormal findings); Oropilla v. Comm'r of Soc. Sec. Admin., No. CV-20-01528-PHX-MTL, 2022 WL 885009, at *3 (D. Ariz. Mar. 25, 2022) (ALJ erred by failing to “articulate with any particularity” how medical records were inconsistent with the treating doctor's opinion); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884 (9th Cir. 2006) (finding that even when “facially legitimate reasons” support an adverse determination, “complete lack of meaningful explanation gives this court nothing with which to assess its legitimacy”).
Likewise, this Court finds that the ALJ's determination that Dr. Hermenau's articulations are also inconsistent with Pickering's “normal back examinations” is not supported by substantial evidence. (AR 38.) In support of this determination, the ALJ relied upon a single medical record dated January 7, 2019, when Pickering sought treatment for a thumb infection. (AR 38, citing AR 428.) The physician that treated Pickering for his thumb infection was an internal medicine physician. Id.
(not multiple, even though the ALJ stated “examinations”)
This Court finds that this single record of a “normal back examination” recorded by an internal medicine physician at visit at which Pickering received intravenous medical treatment for a thumb infection is not more persuasive than the medical records authored by Dr. Hermenau documenting severe facet arthropathy at the L3-L4 level, likely incompetent facet joints, and mild to moderate stenosis at the L3-L4 level. See e.g., AR 1930, 1932-1933. Dr. Hermenau's opined limitations are based on his review of two MRIs, Pickering's medical records, and his physical examinations of Pickering. The ALJ offers no explanation for his determination that a notation by an internal medicine physician recording a normal back examination is more persuasive that Dr. Hermenau's thorough and well-supported opinion.
In sum, this Court determines that the ALJ's finding that Dr. Hermenau's opinion is only partially persuasive is not supported by substantial evidence.
Credibility Analysis
The ALJ discounted Pickering's symptom testimony for four reasons. First, the ALJ found that Pickering's conditions have not resulted in “acute functional limitations.” (AR 34.) Second, the ALJ found that Pickering's activities of daily living were inconsistent with a finding of disability. (AR 36.) Third, the ALJ found that Pickering's self-reported functionality was inconsistent with a finding of disability. Id. Fourth, the ALJ relied upon “[observations by Social Security representative during [Pickering's] initial interviews” that were purportedly inconsistent with Pickering's allegations. Id. Pickering urges that the ALJ's reasons are not specific, clear and convincing. (Doc. 22 at 16-23.) The Commissioner defends the ALJ's credibility determination. (Doc. 24 at 8-14.) As explained below, this Court agrees with Pickering.
Disability benefits cannot be granted based solely on a claimant's subjective complaints. See 42 U.S.C. § 423(d)(5)(A) (“[a]n individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability”); 20 C.F.R. pt. 404.1529(a) (statements about pain or other symptoms will not alone establish disability). Where a claimant has provided objective medical evidence of an impairment that could reasonably produce the alleged symptoms, the ALJ evaluates the intensity and persistence of the symptoms. See SSR 16-3P, 2016 WL 1119029. The ALJ is required to evaluate whether a claimant's statements about her symptoms are consistent with the objective medical evidence and the other evidence in the record. See 20 C.F.R. pt. 404.1529(c)(2), (3); SSR 16-3P, 2016 WL 1119029.
The ALJ must make specific findings about a claimant's allegations, properly supported by the record and sufficiently specific to ensure a reviewing court that the claimant's subjective testimony was not arbitrarily discredited. See Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (citing Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en banc)). Unless there is affirmative evidence that a claimant is malingering, an ALJ's reasons for discounting the claimant's testimony regarding the severity of his symptoms must be “clear and convincing.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). “If the ALJ's . . . finding is supported by substantial evidence, [a court] may not engage in second-guessing.” Kelly L. K. v. Saul, No. 5:20-cv-1773-MAR, 2021 WL 3269981, at *6 (C.D. Cal. July 30, 2021) (quoting Thomas, 278 F.3d at 959).
The Court takes the ALJ's stated reasons out of order.
The ALJ determined that Pickering's functionality is inconsistent with a finding of disability reasoning:
The claimant relates, e.g., that he remains able to drive a motor vehicle . . . The claimant says too that he remains able to shop in stores twice a month . . . The [ALJ] also notes inconsistences in the claimant's Function Report: the claimant says that he can ‘barely move my arms'; but also, though, reports that he remains able to drive a motor vehicle, an activity that requires significant use of the upper extremities.(AR 36.) Pickering argues the ALJ's reason is not specific, clear and convincing because the ALJ failed to find that that a substantial part of Pickering's day is spent engaged in the stated activities of daily living-driving and shopping in stores. (Doc. 22 at 20; Doc. 25 at 9.) The Commissioner does not seriously defend the ALJ's reliance on Pickering's activities of daily living pointing out that “[t]he ALJ did not find that Plaintiff could work solely because of these activities . . . They were one piece of evidence, among many, that show that Plaintiff was not as limited as he claimed.” (Doc. 24 at 11.)
In the Ninth Circuit, “[w]ith respect to daily activities . . . if a claimant ‘is able to spend a substantial part of [her] day engaged in pursuits involving the performance of physical functions that are transferable to a work setting, a specific finding as to this fact may be sufficient to discredit a claimant's allegations.'” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (quoting Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)). Here, the ALJ failed to cite to any evidence in the record that Pickering spends a substantial part of his day engaged in driving or shopping in stores. Indeed, as specifically recognized by the ALJ, Pickering stated that he shops in stores only twice a month. On its face, this statement cannot support a finding that Pickering spends a substantial part of his day shopping in stores.
As to driving, the ALJ failed to reference any evidence in the record that establishes that Pickering spends a substantial part of his day engaged in driving. And even if the ALJ had established with record evidence that Pickering spends a substantial part of his day engaged in driving (and he did not do so), the ALJ failed to explain how Pickering's ability to drive is connected to any of the work-preclusive specific symptoms that he alleges. This Court is persuaded by the numerous courts in this district have determined that an ALJ's failure to establish that a claimant spends a substantial part of his or her day engaged in pursuits that involve the performance of physical functions that are transferable to a work setting is not a specific, clear and convincing reason to discount symptom testimony. See, e.g., Dagley v. Comm'r of Soc. Sec. Admin., No. CV-20-01370-PHX-JJT, 2022 WL 343382, at *6 (D. Ariz. Feb. 4, 2022) (finding where the ALJ concluded, without citing to any of the record, that the claimant's daily activities supported the ALJ's conclusion that claimant could work, the [c]ourt could not meaningfully review the reasons “as the ALJ does not tie any of these activities . . . to any of the work-preclusive specific symptoms alleged”); Heltzel v. Comm 'r of Soc. Sec. Admin., No. CV-19-1287-PHX-DMF, 2020 WL 914523, at *3 (D. Ariz. Feb. 26, 2020) (finding the ALJ failed to provide a clear and convincing reason to discount claimant's testimony when the ALJ “did not explain how Plaintiff's ADLs contradicted his alleged symptoms and thereby undermined his credibility”); Franz v. Comm'r of Soc. Sec. Admin., No. CV 18-04114-PHX-DLR, 2020 WL 582466, at *3 (D. Ariz. Feb. 6, 2020) (finding the claimant's activities, including her attempts to work, attend church, perform household chores, or shop were “not inconsistent with her statements regarding her pain and limitations stemming from her physical impairments,” when the ALJ failed to specify how claimant's church attendance, shopping, or chores, undermined her credibility and the ALJ “did not determine the extent to which Plaintiff takes breaks or how long these activities take her”).
In light of the foregoing, this Court finds that the ALJ's reliance on Pickering's representations that he shops in stores twice a month and is able to drive a car are not specific, clear and convincing reasons to discount his symptom testimony. ...
Adult Function Report Statements
An April 2019 MRI of Pickering's right shoulder showed complete tendon tears, atrophy of the muscles, and moderate osteoarthritis of the joint and a left shoulder MRI also showed several complete tendon tears, atrophy, and a large joint effusion. (AR 721, 723.) The ALJ relied upon Pickering's statement in his April 2019 adult function report that he could barely move his arms, but remained able to drive to support a reduced credibility determination. (AR 36, citing AR 327-334.) Pickering urges that statements in his adult function report concerning the use of his arms are not inconsistent. (Doc. 22 at 21-22; Doc. 25 at 9-10.) The Commissioner does not address Pickering's assertion that he did not provide inconsistent statements and instead urges that the “ALJ was entitled to consider inconsistencies[]” (Doc. 24 at 12.)
Pickering's April 2019 adult function report reads in relevant part: “How do your illnesses, injuries, or conditions limit your ability to work?” (AR 327.) Pickering answered: “I can barely move my arms.” Id. Pickering went on to explain that he could “cook meals, work with computer” during a typical day. (AR 328.) Pickering reported that “sometimes [he] g[o]t prepared meals, mainly use microwave.” (AR 329.) He needed help to put a shirt on, and could not lift his arms to wash his upper body or head. (AR 328.) Pickering also stated that he could do activities that did not involve raising his arms very much: he could perform “cleaning low surfaces, laundry except folding big items,” and he needed help “getting the high things and moving stuff.” (AR 329.) He could shop in stores for food twice a month. (AR 330.) He could no longer go bowling and he spent less time on his computer because of pain. (AR 331.) At the end of his adult function report Pickering wrote, “I can barely raise my arms without pain. The right one was the initial injury but I hurt the left one by overcompensating for the right. I just want to get fixed so I can go back to work.” (AR 334.)
This Court finds that the ALJ failed to consider all of Pickering's statements in his adult function report and, as a result, erroneously determined that Pickering gave inconsistent statements. The ALJ relied solely on Pickering's statement that he could “barely move my arms.” (AR 36.) While an accurate quote, the ALJ failed to consider Pickering's statement in light of the entirely of the adult function report. Significantly, Pickering stated elsewhere in his adult function report that he can “barely raise [his] arms without pain.” (AR 334.) Pickering's report of barely being able to raise his arms without pain places in context Pickering's statement that he can “barely move” his arms. Viewing Pickering's adult function report as a whole, this Court determines that there is no inconsistency. Thus, Court agrees with Pickering that the statement highlighted by the ALJ on his adult function report is not a specific, clear and convincing reason to support a reduced credibility determination.
Social Security Interviewer's Observations
The ALJ determined, “[observations by Social Security representatives during initial interviews are further inconsistent with the claimant's allegations.” (AR 36.) The ALJ reasoned:
In a face-to-face interview, these field office agents noted that the claimants experienced no difficulty sitting, standing, walking, using his hands, or writing (1E). These observations represent a unique insight into the claimant's functionality, capturing an impression of the claimant's capacities outside the context of a formal medical examination. These
agents' observations are not consistent with the claimant's allegations of acute functional deficits.Id. Pickering urges that observations by an individual in such a limited scope setting and almost three years before the hearing is not a specific, clear and convincing reason to discount a claimant's symptom testimony. (Do. 22 at 22.) The Commissioner urges that this factor was only one consideration that demonstrated that Pickering's claims are not consistent with the evidence. (Doc. 24 at 12.)
This Court agrees with Pickering that the ALJ's reliance on such limited observations three years before the hearing does not constitute a specific, clear and convincing reason for rejecting symptom testimony. See, e.g., Gallant v. Heckler, 753 F.2d 1450, 1455 (9th Cir. 1984) (holding that “[t]he fact that a claimant does not exhibit physical manifestations of prolonged pain at the hearing provides little, if any, support for the ALJ's ultimate conclusion that the claimant[‘s]. . . allegations of constant pain are not credible”); Cline v. Sullivan, 939 F.2d 560, 568 (8th Cir. 1991) (“Any system of administrative adjudication which would attach determinative weight to appearances would be fraught with the potential for manipulation because outward manifestations of pain can easily be contrived by a calculating claimant, or suppressed by a hardy claimant.”).
Lack of Objective Medical Support
The ALJ supported his reduced credibility determination with a finding that “[t]he claimant's conditions, in combination, have not resulted acute functional limitations.” (AR 34.) As pointed out by Pickering, the ALJ relies upon a smattering of normal examination findings from the record for this conclusion. (AR 36.) After a general reiteration of medical records that demonstrate a variety of normal examination findings, the ALJ determined:
In sum, considering all the medical evidence, the severity of the claimant's conditions reflected in those records is inconsistent with the claimant's allegations of debilitating impairments. Especially convincing are observations of the claimant ambulating normally.(AR 36.) This Court determines that a lack of objective medical support is not a specific, clear and convincing reason to reduce Pickering's credibility for two reasons.
First, this Court agrees with Pickering that the ALJ failed to link his recitation of the medical record to Pickering's specific medical impairments. Instead, the ALJ generally summarizes a variety of medical findings without any connection to Pickering's impairments in issue. Social Security Ruling 16-3p, requires the agency to “explain which of an individual's symptoms we found consistent or inconsistent with the evidence in his or her record and how our evaluation of the individual's symptoms led to our conclusions.” 2016 WL 1119029, at *8. This Court determines that a general reference to “all the medical evidence” does not satisfy the agency's obligation and numerous courts have found error in such circumstances. See Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (the ALJ's “decision then drifts into a discussion of the medical evidence; it provides no reasons for the credibility determination” and finding the ALJ committed legal error where there was no effort to connect the discussion of the medical evidence to a finding that any specific part of the symptom testimony lacked credibility); Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015) (finding the ALJ must “specify which testimony she finds not credible, and then provide clear and convincing reasons, supported by evidence in the record, to support that credibility determination”); Nelson v. Comm 'r of Soc. Sec. Admin., No. CV- 19-08027-PCT-JZB, 2020 WL 1510332, at *3 (D. Ariz. Mar. 30, 2020) (“Indeed, this Court has repeatedly rejected ALJ rationale that discussed medical evidence but provided no connection between that discussion and rejection of claimants' symptom testimony.” (collecting cases)).
Pickering's spinal imaging showed severe degeneration and Pickering was set to undergo a lumbar fusion surgery the month after the hearing. (AR 82, 1929.) This Court agrees with Pickering that the ALJ failed to explain why only the normal findings in Pickering's medical records were relied upon, and abnormal findings were not. It is well established that a use of normal findings fails to impugn a claimant's symptom testimony is improper cherry-picking. See Thomas v. Comm 'r of Soc. Sec. Admin., No. CV-18-04230-PHX-JZB, 2020 WL 1000023, at *7 (D. Ariz. Mar. 2, 2020) (“[T]he ALJ states that a number of medical records ‘showed mostly normal gait, strength, tone, and range of motion without tenderness swelling or deformity.' But these findings are not mutually exclusive with debilitating pain...” (record citation omitted)); Johnson v. Comm'r of Soc. Sec. Admin., No. CV-18-00012-PHX-JJT, 2019 WL 1375688, at *2 (D. Ariz. Mar. 27, 2019) (“The ALJ cites evidence that Plaintiff demonstrated normal range of motion, muscle strength, and gait, but these evaluations are not the same as the treating physicians' assessments of severe chronic pain, which is supported by substantial evidence in the record by way of extensive treatment notes.”); Rawa v. Colvin, 672 Fed. App'x 664, 667 (9th Cir. 2016) (noting it is beyond the scope of an ALJ's authority to conclude that the lack of muscle atrophy in a claimant means the claimant does not suffer from chronic pain as noted by the treating physician).
Second, a lack of objective medical findings alone is not a sufficient basis to support an adverse credibility determination. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (lack of objective medical evidence to support subjective symptom allegations cannot form the sole basis for discounting pain testimony); Dschaak v. Astrue, No. CV-10-1010-PK, 2011 WL 4498835, at *1 (D. Or. Sept. 27, 2011) (holding that “once the[ ] other bases for the ALJ's decision were discarded as erroneous, the ALJ's [adverse subjective testimony] determination could not rely solely on conflicts with the medical evidence”). As explained above, the Court finds that the other reasons relied upon by the ALJ for discounting Pickering's symptom testimony-discrepancy in reported activity, activities of daily living, and observations by Social Security representatives-are not specific, clear and convincing reasons. Accordingly, a lack of objective medical support, now standing alone, is not a specific, clear and convincing reason for rejecting Pickering's symptom testimony.
In sum, this Court determines that the ALJ's reduced credibility determination is not supported by specific, clear and convincing reasons.
The ALJ's Errors are Not Harmless
An ALJ's decision will not be reversed for an error that is harmless. Stout v. Comm 'r of Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citing Burch, 400 F.3d at 679). An error is harmless if the reviewing court can confidently conclude that no reasonable ALJ could have reached a different disability determination. Stout, 454 F.3d at 1056. Stated another way, an error is harmless if it is inconsequential to the non-disability determination. Id. at 1055.
Here, the ALJ's non-disability determination relied on his decision to find Dr. Hermenau's opinion less persuasive and his discrediting of Pickering's symptom testimony. Thus, this Court cannot conclude that the ALJ's errors are harmless. See, e.g., Brown-Hunter, 806 F.3d at 492-93 (holding that an ALJ's failure to adequately support reason for discounting claimant testimony “will usually not be harmless”).
Remand For Immediate Calculation and Payment of Benefits is Recommended
With error established, the district court has the discretion to remand or reverse and award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). A case may be remanded under the credit-as-true rule for an award of benefits where:
(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 v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Even where all the conditions for the credit-as-true rule are met, the court retains “flexibility to remand for further proceedings when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act.” Id. at 1021.
This Court finds the requirements for the application of the credit-as-true rule are met. First, the record is fully developed. The record contains medical opinions, sufficient medical evidence, Pickering's testimony, and VE testimony. As discussed above, it was error for the ALJ to determine that the opinion of Dr. Hermenau was only partially persuasive and to reduce Pickering's credibility. Crediting as true the foregoing would result in a determination that Pickering is disabled because, according to the VE, if a person had limitations as assessed by Dr. Hermenau that person would be unable to perform any work. (AR 83.) Also according to the VE, if a person were required to take unscheduled breaks throughout the workday that totaled up to three hours of an eight-hour day, he could not sustain work. (AR 83-84.) See Revels v. Berryhill, 874 F.3d 648, 669 (9th Cir. 2017) (“If credited as true, Dr. Nolan's opinion establishes that Revels is disabled, because the VE testified that someone with the limitations established by Dr. Nolan could not work.”) There is no serious doubt that Pickering is disabled and a failure to reverse the decision of the ALJ and remand with the instruction to calculate and award benefits would be an abuse of discretion. See Garrison, 750 F.3d at 1018 (reversing, for abuse of discretion, the district court's decision to remand the case to the ALJ for further proceedings instead of remanding to the ALJ for the calculation and award of appropriate benefits).
Considering the foregoing, remand with instructions to immediately calculate and award benefits is recommended.
RECOMMENDATION
It is recommended that the District Court, after its independent review, reverse the decision of the ALJ and remand to the Commissioner for immediate calculation and payment of benefits. Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the District Court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: 4:22-cv-28-JAS.