Opinion
CV-21-00267-TUC-RM (EJM)
06-29-2022
REPORT AND RECOMMENDATION
Eric J. Markovich United States Magistrate Judge
Plaintiff Jennifer Redgrave brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security (“Commissioner”). Plaintiff raises two issues on appeal: 1) the Administrative Law Judge (“ALJ”) failed to discuss the weight given to Dr. Noelle Rohen's consultative examiner opinion; and 2) the ALJ failed to give clear and convincing reasons to discount Plaintiff's subjective symptom testimony. (Doc. 17).
As Plaintiff is a person of non-binary gender, the Court refers to Plaintiff in this decision using the pronouns “they,” “their,” and "“‘them.”
Before the Court are Plaintiff's Opening Brief, Defendant's Response, and Plaintiff's Reply. (Docs. 17, 20, & 21). Based on the pleadings and the administrative record submitted to the Court, the Magistrate Judge recommends that the District Court, after its independent review, remand this matter for further administrative proceedings.
I. Procedural History
Plaintiff filed applications for Disability Insurance Benefits and Supplemental Security Income on March 3, 2016. (Administrative Record (“AR”) 202, 204). Plaintiff alleged disability beginning on February 18, 2016 based on seriously mentally ill-bipolar and mood swings, fibromyalgia, psychotic tendencies, severe anxiety, schizophrenia, borderline personality disorder, insomnia, auditory hallucinations, visual hallucinations, mild genetic hearing loss, and sinus infections. (AR 44-45). Plaintiff's applications were denied upon initial review (AR 74-75, 132) and on reconsideration (AR 104-05, 140). A hearing was held on May 29, 2018 (AR 18), after which ALJ Larry E. Johnson found, at Step Five, that Plaintiff was not disabled because Plaintiff was capable of performing other work existing in significant numbers in the national economy (AR 118-19). On June 12, 2019 the Appeals Council denied Plaintiff's request to review the ALJ's decision. (AR 124).
Plaintiff's date last insured (“DLI”) for DIB purposes is June 30, 2020. (AR 110).Thus, to be eligible for benefits, Plaintiff must prove that they were disabled during the time period of the AOD of February 18, 2016 and the DLI of June 30, 2020.
The disability determination explanations at the initial and reconsideration levels state that Plaintiff's DLI is December 31, 2019; however, the ALJ stated that Plaintiff's DLI is June 30, 2020. (AR 44, 76, 110).
While the undersigned has reviewed the entirety of the record in this matter, the following summary includes only the information most pertinent to the Court's decision on Plaintiff's claims on appeal.
Plaintiff was born on May 9, 1983, making them 33 years old at the alleged onset date of their disability. (AR 44). Plaintiff completed one year of college and has past relevant work in customer service and call centers. (AR 223, 239).
A. Medical Evidence
i. El Rio Community Health Center
The record documents Plaintiff's treatment at El Rio Community Health Center from 2014 to 2016. (AR 489-599).
On August 28, 2014 Plaintiff was seen to establish care and reported abdominal pain, bipolar disorder, and fibromyalgia. (AR 578). Functioning was somewhat difficult and Plaintiff presented with anxious/fearful thoughts, depressed mood, difficulty falling asleep, diminished interest or pleasure, fatigue, increased energy, loss of appetite, and racing thoughts, but denied hallucinations and thoughts of death or suicide. Plaintiff also reported pain in almost all joints and muscles and morning stiffness of hands, but no swelling. On exam Plaintiff had 16/18 tender points and the patient health questionnaire indicated moderate depression. (AR 580, 587).
On October 10, 2014 Plaintiff reported meds were working well and mood was stable with no suicidal ideation or hallucinations. (AR 574).
On December 4, 2014 Plaintiff reported onset of musculoskeletal pain one year ago, associated with decreased mobility. (AR 570).
On March 25, 2015 Plaintiff reported bipolar was well controlled and they had no manic episodes since their last visit. (AR 566). Plaintiff denied hallucinations or suicidal ideation and wanted to continue the same meds because they were stable.
On June 27, 2015 Plaintiff reported functioning was very difficult and had worsening symptoms of anxiety and depression, associated with chronic pain, and aggravated by conflict or stress. (AR 555).
On July 13, 2015 Plaintiff reported they were recently seen at the crisis response center for auditory and visual hallucinations and their medication was changed to Seroquel. (AR 550). Plaintiff requested a note excusing them from work for the prior and current weeks because they felt unstable to go to work; Plaintiff reported hallucinations and anxiety had decreased but not to a level to be functional.
On July 16, 2015 Plaintiff reported improvement in anxiety and panic attacks and decreased auditory hallucinations. (AR 546).
On February 3, 2016 Plaintiff reported difficulty sleeping due to back pain that was different than their fibromyalgia pain. (AR 518). Plaintiff stated they were waiting for an evaluation by the ENT for hearing loss and requested a letter for their employer stating they needed amplification technology to do their job effectively at the call center.
On March 31, 2016 Plaintiff reported worsening migraines associated with stress, worsening insomnia, and fluctuating and persistent back pain. (AR 502).
On April 18, 2016 Plaintiff reported Ambien worked well for insomnia but they had a worsening right-hand tremor that made them drop things. (AR 498).
On June 2, 2016 Plaintiff was seen for back pain that was different than their fibromyalgia pain, which was well controlled with Lyrica. (AR 494). Plaintiff also reported worsening insomnia and that they couldn't fall asleep because their legs were uncomfortable and jittery.
ii. COPE Community Services
The record documents Plaintiff's treatment at COPE from 2015 to 2016. (AR 290421). On April 17, 2015 Plaintiff's Seriously Mentally Ill. (“SMI”) application was approved and they were assigned to COPE for case management services. (AR 860, 867).
On June 27, 2015 Plaintiff reported increased depression and anxiety over fear of possibly losing their job, and felt medications were no longer effective. (AR 315).
On July 6, 2015 Plaintiff reported increased mood swings and depressive thoughts that had progressively gotten worse until they had a bipolar attack at work and yelled at their boss. (AR 297). They also reported chronic auditory hallucinations and visual hallucinations of people running in front of a car.
At an August 6, 2015 psych eval Plaintiff reported having bipolar disorder their entire life and experiencing depressive episodes of feeling hopeless, useless, and like they were in a dark place and that is where they deserve to be. (AR 328). Plaintiff described manic episodes as feeling like they “gunshotted” three energy drinks and running around cleaning the house at 3 a.m. They also reported anxiety that made it hard to leave the house but no panic attacks, and their current mood was terrified and nervous. Plaintiff endorsed symptoms of borderline personality: excessive fear of abandonment, history of black and white thinking, history of identity diffusion, and history of self-destructive behavior. On exam Plaintiff's affect was euthymic though they self-reported anxious, speech pressured, thought process circumstantial, insight partial, and judgment and impulse control appeared mildly impaired. (AR 329). The diagnostic impression was mood disorder not otherwise specified and borderline personality disorder.
On October 9, 2015 Plaintiff reported they were doing ok and felt medications were helping, but also described psychosocial stressors with work and living situations and were experiencing mini panic attacks. (AR 299). Plaintiff presented as loud and pressured.
On December 9, 2015 Plaintiff reported racing thoughts, irritability, difficulty sleeping, and images of hurting people but denied any plan to do so. (AR 301).
On January 8, 2016 Plaintiff reported feeling angry and jittery when they got annoyed and felt it was a medication side effect, and continued to complain of racing thoughts and insomnia. (AR 303).
On February 4, 2016 Plaintiff reported intense daily highs and lows and feeling like they were crawling out of their skin, and some improvement on Depakote. (AR 305). Provider discussed the need to prioritize therapy to develop skills for increased distress tolerance.
On March 10, 2016 Plaintiff reported high stress, difficulty interacting with others, and oscillating highs and lows. (AR 307).
On March 22, 2016 two COPE staff members discussed how Plaintiff had left a note requesting that an application for disability be filled out. (AR 309). Dr. Sandra Combs noted Plaintiff had not followed up with dialectical behavioral therapy (“DBT”), the primary treatment for their borderline personality disorder. (AR 309). Dr. Combs stated that Plaintiff needed to complete DBT to be compliant with treatment and for Dr. Combs to support temporary disability. Dr. Combs also stated that she was “not in support of long term disability as I feel withdrawing from the workforce indefinitely will only contribute to continued decline of function as well as perpetuate symptoms of mood instability and depression.”
On April 13, 2016 Plaintiff described daily highs and lows of not wanting to get out of bed one moment then bouncing off the walls the next. (AR 311). Plaintiff reported they were pursuing DBT and that they were starting a call center job later that month.
A client summary updated April 24, 2016 lists Plaintiff's diagnoses as borderline personality disorder and unspecified mood disorder. (AR 293). ...
iii. Banner UMC
The record documents Plaintiff's treatment at Banner UMC from 2015 to 2016. (AR 422-82). Plaintiff was seen for treatment of various physical health complaints including sore throat, sinus pain, shortness of breath, migraines, fibromyalgia pain, and gallbladder surgery.
iv. Valley ENT
On March 1, 2016 Plaintiff was seen for a new patient consultation and reported significant problems with their sinuses, recurrent problems with their tonsils, and a significant degree of problems with tinnitus and decreased hearing. (AR 488). Physical exam showed deviated septum and CT of the sinuses was recommended; audiogram showed mild bilateral sensorineural hearing loss and a headset for Plaintiff's job as a telephone operator was recommended.
v. CODAC Health Recovery and Wellness
The record documents Plaintiff's treatment at CODAC from 2016 to 2018. (AR 690-859). Plaintiff participated in individual therapy with Ambrose Fulk from June 13, 2016 to September 14, 2016 (AR 815-48), and with Marnie Arnett from April 21, 2017 to May 18, 2018 (AR 755-813). The following summaries are from office visits documenting Plaintiff's mental health conditions and medication changes.
On June 1, 2016 Plaintiff reported increasing road rage which caused fibromyalgia to flare. (AR 752). They rated depression 2-3/10 and said Paxil was helpful, and Paxil helped decrease anxiety. (AR 753).
On June 29, 2016 Plaintiff reported things were going fairly well; they were not as anxious about small things and were not binging as much. (AR 749-50).
On July 26, 2016 Plaintiff reported groups were helpful, anxiety was increased due to financial stress, depression and anxiety were 10 ++, and movement was more difficult; their PCP sent them to physical therapy and they were very offended. (AR 746-47).
On October 6, 2016 Plaintiff reported they had been more violent, had not been able to sleep, and had been awake up to 3-4 days. (AR 741). Sleeping meds were not working but Vyvanse was working very well and controlled their thoughts in a good way. (AR 74142). Plaintiff felt irritable and anxiety was heightened. (AR 742).
On November 4, 2016 Plaintiff reported trouble keeping things straight and distinguishing reality from not reality. (AR 738). Vyvanse was working well for focus and concentration until around 6-7 p.m., and depression was also worse after 7 p.m. (AR 73839).
On March 22, 2017 Plaintiff reported that things had been hectic; pain and nerve issues were preventing them from driving, which made them feel depressed, and voices recurred. (AR 733). Plaintiff also reported Lunesta stopped working and they were only sleeping 2-3 hours a night; stress and anxiety were higher and they were having emotional urges to eat. (AR 734).
On April 24, 2017 Plaintiff reported they were not doing well and had high amounts of depression; they did not want to be around others and were isolating and had low motivation. (AR 730-31).
On June 9, 2017 Plaintiff reported Paxil was doing much better but they had some issues with ADHD in the evening and had trouble with finding words and concepts. (AR 727). Plaintiff also reported not sleeping well and getting sudden anxiety where their energy and nerves would get intense and they became hyper focused. (AR 728).
On July 18, 2017 Plaintiff reported having a lot of depressive symptoms; they were facing eviction and felt useless and like they could barely get out of bed. (AR 723). Plaintiff also reported worsening tremors and that they could barely make it up the stairs to their apartment. (AR 723-24).
On August 15, 2017 Plaintiff reported Belsomra wasn't working anymore and they were waking up in the middle of the night unable to fall back asleep. (AR 718). Plaintiff also reported getting anxious and claustrophobic in regard to anxiety. (AR 719).
On September 21, 2017 Plaintiff reported a trip to see their mom went well but that they didn't take meds while they were there, which showed them the meds are doing something to help. (AR 715). Plaintiff also reported therapy was helpful and Belsomra was working well to get them into a regular sleeping pattern. (AR 716).
On October 25, 2017 Plaintiff reported they had no social life and were limited to texting and chance encounters at CODAC. (AR 695). They were struggling emotionally and deteriorating physically, and emotionally triggered by a bad living situation. Plaintiff was fighting for disability and their lawyer would not allow them to work while the case was in process.
On December 15, 2017 Plaintiff reported that they only took Belsomra once or twice a week because otherwise it caused them to sleep all day and have nightmares; they were doing very well with the rest of their meds. (AR 712-13). Review of systems and mental status were both unremarkable. (AR 713).
On December 28, 2017 Plaintiff was seeking a referral for housing and looking for the right mix of meds to stabilize mood from extreme highs and lows. (AR 690). Plaintiff reported fibromyalgia caused them to be highly sensitive to cold; they were in constant pain despite taking Lyrica and unable to perform basic tasks like preparing a meal. (AR 691).
On February 6, 2018 Plaintiff reported Vyvanse was not working as well as it should and they still had problems with focus and concentration. (AR 710). They also had some anxiety and wondered what they could do to help it.
On April 18, 2018 Plaintiff reported Adderall had not made much difference, Belsomra was not working well anymore for sleep, and B vitamin was helping with energy and focus. (AR 701). They were observed to be walking slowly with a cane and stated they had a wheelchair but did not use it because it was too big. Plaintiff's diagnosis was major depressive disorder, recurrent, moderate; ADHD, combined type; unspecified feeding or eating disorder; and borderline personality disorder. (AR 699).
vi. Chiricahua Community Health Centers
The record documents Plaintiff's treatment at Chiricahua Community Health Centers in 2017. (AR 606-89).
On February 6, 2017 Plaintiff was seen to establish care and reported a long history of fibromyalgia and depression. (AR 677). Plaintiff reported increasing right leg numbness and weakness, now spreading to the left leg. Provider noted neurology was consulted and brain MRI was normal and EMG was unremarkable, and neurologist recommended MRI of the L-spine. Plaintiff was to use a cane at all times to help with ambulation and avoid falls. (AR 681).
A February 28, 2017 MRI of the lumbar spine showed some disc degeneration and mild endplate degenerative changes at ¶ 5-S1, and minimal facet arthropathy at ¶ 5-S1. (AR 689).
On March 20, 2017 Plaintiff reported increased life stress and increase in worries resulting in increased muscle tension, which was negatively impacting their gait and overall quality of life. (AR 663). Plaintiff also reported increased leg weakness and said they could not even stand to shower. (AR 666). The patient health questionnaire showed severe depression. (AR 667).
On July 17, 2017 Plaintiff reported worsening restless leg syndrome and requested an increase in meds, and worsening hearing and requested referral to another ENT for evaluation and treatment. (AR 644).
On September 25, 2017 Plaintiff was worried about their uncontrolled weight and acknowledged using food as a coping mechanism for gender dysphoria. (AR 631). Plaintiff also reported increased anhedonia due to life stressors as impacting their ability to manage their fibromyalgia. Plaintiff requested a rheumatology consult for fibromyalgia because they read online that this would be the only way they would be approved for disability; Plaintiff asked provider to make sure she was documenting this well so that their disability claim would be taken seriously. (AR 634). Plaintiff stated they were declining and even the maximum dose of Lyrica was not working for their pain; Voltaren was not working for pain in their hands and knees; and right hand tremor was getting worse to where they could not hold anything. The provider observed that when Plaintiff held out their right hand to have it evaluated for tremor, it shook violently, but at all other times it was calm with a normal appearance of strength. (AR 637). The assessment noted that Plaintiff's right hand tremor appeared factitious/conversion related and had already been determined as such by one neurologist, and might need to be addressed with psychiatry; and Plaintiff's fibromyalgia pain probably had a large psychiatric component. (AR 638).
On October 18, 2017 Plaintiff reported restless leg syndrome impacting their ability to function due to not feeling rested in the mornings and requested an increase in medication. (AR 621, 624). Plaintiff asked about the status of their authorization for a shower chair and showerhead with hose and was angry the paperwork hadn't already been done. (AR 624).
On November 28, 2017 Plaintiff was seen for polyneuropathy, anal prolapse, GERD, and depression. (AR 608-10, 613). They were overwhelmed by their life circumstances, dealing with housing issues, a roommate's job loss, and dysphoria related to their gender expression. (AR 610). Plaintiff complained of severe polyneuropathy with numbness, tingling, and pain in all four extremities and said Lyrica wasn't helping and requested a neurology consult. (AR 613).
vii. Banner Neurosciences Clinic
On May 8, 2018 Plaintiff was seen at the Banner Neurosciences Clinic for fibromyalgia, migraines, and memory issues. (AR 886). Plaintiff reported increased migraines and memory problems in the last 6-8 months; they had trouble remembering names and birthdays, had interrupted thoughts, couldn't cook due to memory problems, and relied on their partner to maintain their bank account and pay bills. (AR 887-88). Review of systems and physical exam were largely normal: Plaintiff had normal bulk and tone, no abnormal movements, was able to move all extremities, could not participate in the strength test, sensation and coordinate were intact, and gait was normal. (AR 888-89). On the mental status exam, Plaintiff was able to answer questions and follow commands appropriately; Plaintiff scored 20/30 on MoCA but the doctor noted Plaintiff did not participate well and the validity of the score was questionable due to Plaintiff's limited participation. (AR 888). The assessment was probable sleep apnea and morbid obesity and Plaintiff was referred for a sleep study. (AR 886).
MoCA is a cognitive screening test designed to assist Health Professionals in the detection of mild cognitive impairment and Alzheimer's disease. https://www.mocatest.org
B. Consultative Examination
On August 9, 2016 Plaintiff saw Dr. Noelle Rohen for a psychological consultative examination. (AR 600). Plaintiff stated they were seeking disability because: “I can no longer take any crap. I have no customer service filter, have no patience for anyone who thinks they are entitled to anything more than I can give.” Plaintiff explained that they used to love doing customer service, but that they became increasingly irritable in their last three jobs. Their last job was at a call center earlier that year and the job ended after a few weeks because they had constant panic attacks and couldn't sleep when they had to work the next day. (AR 601). The two jobs previous to that one ended similarly after a few months when Plaintiff resigned because of stress. This was a pattern where they did not usually get fired and tried hard to avoid it and would resign before that happened.
Plaintiff described two extremes of mood, euphoria and deep depression, nothing in the middle. (AR 600). They reported a history of abuse in childhood and past romantic relationships and had trauma-specific nightmares. Intrusive thoughts were a constant problem and it took extreme mental effort to block these out; Plaintiff was bothered by the quiet in the office and asked Dr. Rohen to turn on the fan because the background noise helped them to manage their thoughts. Plaintiff stated they did not trust anyone because everyone has an ulterior motive; they were irritable and had no patience; they were easily startled and jumpy at movements by the cats or other people; and they were agitated all the time, prone to panic attacks, and avoidant of social interactions. Depression was their baseline with some mania, and sleep and daytime energy were poor. (AR 600-01). Plaintiff stated they did not bother with hygiene and had not taken a shower all year, but when pressed by Dr. Rohen, Plaintiff admitted using baby wipes nightly to clean themself. (AR 601). They reported obsessive compulsive eating disorder, three past suicide attempts, and hearing voices. Plaintiff stated they had mental health treatment on and off since childhood; they currently attended individual and group therapy and took medications, but felt life was too chaotic for the meds to help.
Plaintiff lived with their fiance and a roommate who was the only one employed. (AR 602). Plaintiff stated they visited CODAC daily and were terrified of being alone; they did not drive because they could not fit comfortably in the car and were bothered by the vibration of the steering wheel. They were divorced and in the process of trying to divorce again, and had three biological children that were placed in an open adoption. Plaintiff had regular contact with family, housemates, and a few good friends.
Dr. Rohen observed that Plaintiff had basic but adequate hygiene and grooming, was cooperative with good eye contact, and affect was full range with some tears when discussing their children. (AR 602). Mood was consistently irritable and Plaintiff openly discussed their discontent at having to attend the appointment. Thoughts were linear and coherent, memory adequate to provide history, and rate and flow of speech within normal limits. Plaintiff scored 29/30 on the Mini Mental Status Examination and demonstrated concrete abstracting ability, but declined to attempt any calculations, stating math was a problem for them. Dr. Rohen did not discovery any inconsistencies and stated Plaintiff appeared cognitively to be an adequate historian. (AR 603).
Dr. Rohen's diagnostic impression was PTSD, unspecified personality disorder, and unspecified depressive disorder. (AR 603). She stated that it was unclear whether Plaintiff's “mood lability is due to a cycling mood disorder or a borderline personality, but it is reported as highly problematic and not terribly responsive to [their] mood stabilizer.” Dr. Rohen further stated that “[i]rritability may be attributed to PTSD, but may also cycle” and that “[t]here are oblique comments suggesting features of an obsessive-compulsive disorder or personality structure.” Finally, Dr. Rohen opined that “[i]mpairment is anticipated to occur in social interactions and persistence.”
Dr. Rohen also completed a Psychological/Psychiatric Medical Source Statement. (AR 604). She opined that Plaintiff's understanding and memory appeared intact. As to sustained concentration and persistence, Dr. Rohen stated that Plaintiff's focus appeared intact, but she “anticipate[d] this may fail under stress, as claimant appears vulnerable to decompensation.” Dr. Rohen further noted that “[persistence historically is said to have been subpar, with claimant leaving jobs because of anxiety flares.” As to social interaction, Dr. Rohen opined that Plaintiff could appropriately dress and groom, and “[t]oday, [Plaintiff's] irritability is evident in [their] style of relating and could certainly ruffle some personalities.” Finally, as to adaptation, Dr. Rohen opined that Plaintiff could “learn new tasks and avoid hazards, but may find that [their] anxiety is higher in more demanding or dynamic situations.”
C. Plaintiff's Testimony
On a Function Report dated July 10, 2016 Plaintiff stated they could not work because fibromyalgia caused pain in every joint and since most offices and call centers were heavily air conditioned, they could not do even the simplest jobs. (AR 251). This inability aggravated their borderline personality disorder and anxiety, making them hostile, unpredictably moody, and neurotic. Plaintiff stated that while they tried to get along with everyone, they had problems getting along with others because if a situation became hostile, they met it with greater hostility, and if someone was unwilling to compromise, they got hostile and defensive. (AR 256-57). As a customer service representative, they no longer had the ability to get along with callers to solve their problems and got irrationally angry and frustrated. (AR 264). Plaintiff also had a lessened ability to get along with supervisors and could not stay rational when asked to do something they physically, mentally, or emotionally could not do.
Plaintiff could usually get through a movie but did not finish what they started, and could follow written and spoken instructions as long as the steps were small, clear, and concise. (AR 256). Their memory and ability to focus and concentrate were affected by ADD, even with medication. (AR 263). They did not handle stress well and had increasing paranoia, irritability, or a total shut down. (AR 257). Plaintiff described limited daily activities of taking medication to alleviate their pain and relying on others for help with all personal care and rides to appointments due to their pain and functional limitations. (AR 260-61). Plaintiff's hobbies included crafting, games, drawing, reading, and singing, but they could only do things requiring use of their hands and arms for brief periods of time. (AR 261).
On June 1, 2016 Plaintiff's roommate completed a third-party Function Report and described similar limitations and daily activities. (AR 230-38).
At the hearing before the ALJ, Plaintiff testified that they live with their fiance and couldn't really live alone because they couldn't do a lot, such as properly shower. (AR 25). Plaintiff stated that they had been in a wheelchair for about a year because their right leg stopped working so they had to use a cane or wheelchair. (AR 23-24). They couldn't really do stairs and could only walk short distances. (AR 24). Plaintiff testified that they had a lot of difficulty with their hands because they shake and Plaintiff can't write or type or do anything really hand-intensive. (AR 31). They could sit for 30-45 minutes before needing to stand and stretch and walk around, then needed to resume sitting. (AR 32). They are only somewhat comfortable when lying in bed with multiple pillows.
Plaintiff stated that unfortunately, they spent their time watching TV or playing on their phone because those were things they could do laying down or with minimal hand movement. (AR 27). Plaintiff described fibromyalgia as dominating everything they do and taking away their independence due to pain, shaking, and inability to control their movements. (AR 28-29). Plaintiff also explained that “the fibro fog makes it really, really difficult for me to remember dates.” (AR 23). Plaintiff forgot little things like what they were doing in the middle of cooking, where they were going in the car, or their children's birthdays. (AR 26).
For their mental health treatment, Plaintiff was attending an LGBT group at CODAC and saw their therapist every other week. (AR 25, 30). Plaintiff had been seeing the psychiatrist every six weeks but was in the process of getting a new one because Plaintiff felt the old one was changing their meds from everything that did work to things that didn't work. (AR 30). Plaintiff was not taking anti-anxiety medication because when they took it in the past, it gave them massive panic attacks. (AR 35). Testing showed that their body processes most medications 2-3 times faster than other people, but processes anti-anxieties twice as slow, so they are only supposed to take anti-anxiety meds on very rare occasions.
When Plaintiff's attorney asked if there was anything else Plaintiff wanted to add, Plaintiff responded: “Well, I don't know. I'm just-I'm just so jittery, I don't remember it really well.” (AR 35).
D. Vocational Testimony
At the hearing before the ALJ, Valerie Williams testified as a vocational expert. (AR 36). She described Plaintiff's past work as a user support analyst and customer service representative as sedentary and compatible with working in a wheelchair. (AR 37).
The ALJ asked Williams to assume an individual who could do sedentary work in a wheelchair and had the mental capacity to do work where interpersonal contact was only incidental to the work performed and the individual was not required to frequently consult with or involve coworkers or the public, and if public contact occurred, it would be limited to that which is merely incidental to the job and generally brief, infrequent, and superficial, and not a primary component of the job. (AR 38). Further, the individual could perform tasks that were no more complex than those considered unskilled with instructions limited to 1-3 step instructions typical of unskilled work, requiring judgment commensurate with unskilled work, and involving infrequent changes. Finally, the individual would not require special supervision. Williams testified such an individual could not perform Plaintiff's past work, but could perform other work such as sticker, document preparer, or jewelry preparer. (AR 38-39).
Williams testified that an individual could be off-task a maximum of up to 10% of the workday for unskilled jobs. (AR 39). Over 10% would preclude a person from doing the jobs. On questioning by Plaintiff's attorney, Williams testified that if a limitation to occasional handling and fingering were added to the hypothetical, there would be no jobs at the sedentary level that the individual could perform. (AR 40).
E. ALJ's Findings
The ALJ found that Plaintiff had the severe impairments of bipolar disorder, obesity, degenerative disc disease, and fibromyalgia. (AR 112). The ALJ also considered the Paragraph B criteria set out in the social security disability regulations for evaluating mental disorders and found that Plaintiff had mild limitations in understanding, remembering, and applying information and in the ability to adapt and manage oneself, and moderate limitations in interacting with others and concentrating, persisting, or maintaining pace. (AR 113). Because the ALJ did not find “extreme” limitation of one, or “marked” limitation of two, of the four areas of mental functioning, the Paragraph B criteria were not satisfied and the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments.
The ALJ found that Plaintiff's statements concerning the intensity, persistence, and limiting effects of their symptoms were not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in the decision. (AR 115).
The ALJ gave substantial weight to the state agency physician opinions because they are “highly qualified physicians who are also experts in Social Security disability evaluation and their opinion that the claimant can perform unskilled work activity with reduced social interaction is consistent with the medical records . . . .” (AR 117).
The ALJ gave some weight to the lay witness statement of Plaintiff's roommate, Katherine Foster, because Foster observed Plaintiff daily and could attest to Plaintiff's functioning; however, Foster was “not a medical professional thus her observations are of limited value.” (AR 117).
The ALJ found that Plaintiff had the RFC to perform sedentary work with the following limitations: Plaintiff requires the use of a wheelchair; can perform work where interpersonal contact is only incidental to the work performed, i.e., the claimant is not required to frequently consult with or involve coworkers and the general public with such public contact that occurs being limited to that which is merely incidental to the job and generally brief, infrequent, and superficial, and not a primary component of the job; performed tasks can be no more complex than those considered as unskilled with instructions limited to one to three step instructions typical of unskilled work, requiring judgment commensurate with unskilled work and involving infrequent changes; and no special supervision is required for routine work-related tasks. (AR 114).
Based on the testimony by the VE, the ALJ found that Plaintiff was unable to perform their past relevant work as a user support analyst or customer service representative, but was capable of performing other jobs existing in significant numbers in the national economy. (AR 117-19). The ALJ therefore concluded that Plaintiff was not disabled. (AR 119).
III. Standard of Review
The Commissioner employs a five-step sequential process to evaluate SSI and DIB claims. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To establish disability the claimant bears the burden of showing he (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) the claimant's RFC precludes him from performing his past work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(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, he does not proceed to the next step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
The findings of the Commissioner are meant to be conclusive. 42 U.S.C. §§ 405(g), 1383(c)(3). 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). As set forth in 42 U.S.C. § 405(g), “[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive.” Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (internal quotations and citation omitted), and is “more than a mere scintilla, but less than a preponderance.” Aukland, 257 F.3d at 1035. 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). “Rather, a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the Secretary's conclusion.” Aukland, 257 F.3d at 1035 (internal quotations and citations omitted).
The ALJ is responsible for resolving conflicts in testimony, determining credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “When the evidence before the ALJ is subject to more than one rational interpretation, [the court] must defer to the ALJ's conclusion.” Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). This is so because “[t]he [ALJ] and not the reviewing court must resolve conflicts in evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992).
Additionally, “[a] decision of the ALJ will not be reversed for errors that are harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). The claimant bears the burden to prove any error is harmful. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011) (citing Shinseki v. Sanders, 556 U.S. 396 (2009)). An error is harmless where it is “inconsequential to the ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. § 404.1502(a); see also Stout v. Comm r Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). “[I]n each case [the court] look[s] at the record as a whole to determine whether the error alters the outcome of the case.” Molina, 674 F.3d at 1115. In other words, “an error is harmless so long as there remains substantial evidence supporting the ALJ's decision and the error does not negate the validity of the ALJ's ultimate conclusion.” Id. (internal quotations and citations omitted). Finally, “[a] claimant is not entitled to benefits under the statute unless the claimant is, in fact, disabled, no matter how egregious the ALJ's errors may be.” Strauss v. Comm'r Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
IV. Discussion
Plaintiff argues that the ALJ erred by failing to discuss the weight given to Dr. Rohen's consultative examiner opinion and that it is therefore unclear whether the RFC incorporates Dr. Rohen's opinion. Plaintiff further argues that the ALJ failed to provide clear and convincing reasons to reject their subjective symptom testimony. Both Plaintiff's claims of error relate to the non-somatic symptoms of their mental health issues. Plaintiff specifically contends that, based on the CE opinion and Plaintiff's testimony, the ALJ should have included additional limitations in the RFC relating to persistence and interacting with others. Plaintiff requests that the Court remand this matter for reconsideration of the evidence.
The Commissioner contends that any error in the ALJ's failure to assign a weight to Dr. Rohen's opinion was harmless because Dr. Rohen did not opine to any specific, concrete limitations that were not already included in the RFC. The Commissioner further argues that the ALJ properly evaluated Plaintiff's subjective statements and reasonably found that they were not consistent with the evidence of record. The Commissioner requests that the Court affirm the ALJ's decision because it is supported by substantial evidence and free from legal error.
The undersigned has considered the parties' arguments and thoroughly reviewed the record in this matter. For the reasons explained below, the undersigned finds that the ALJ failed to provide legally sufficient reasons to discount Plaintiff's subjective symptom testimony. This error impacted the ALJ's RFC assessment and the hypotheticals posed to the VE. Consequently, the error was not harmless because it ultimately impacted the ALJ's Step Five nondisability finding. Because questions remain regarding whether in fact Plaintiff was disabled within the meaning of the SSA during the relevant time period, and because Plaintiff's subjective symptom testimony is best reassessed in light of the record as a whole, the Court finds that remand for further administrative proceedings is appropriate.
Because the undersigned recommends that this matter be remanded for further administrative proceedings on an open record, the undersigned declines to address the other issues raised by Plaintiff in their appeal.
“An ALJ's assessment of symptom severity and claimant credibility is entitled to great weight.” Honaker v. Colvin, 2015 WL 262972, *3 (C.D. Cal. Jan. 21, 2015) (internal quotations and citations omitted). This is because “an ALJ cannot be required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Treicherler v. Comm 'r. Soc. Sec. Admin., 775 F.3d 1090, 1106 (9th Cir. 2014). “If the ALJ's credibility finding is supported by substantial evidence in the record, the reviewing court may not engage in second-guessing.” Honaker, 2015 WL 262972 at * 3 (internal quotations and citation omitted).
SSR 16-3p went into effect on March 16, 2016 and supersedes SSR 96-7p, the previous policy governing the evaluation of symptoms. SSR 16-3p, 2016 WL 1119029, *1. The ruling indicates that “we are eliminating the use of the term ‘credibility' from our sub-regulatory policy, as our regulations do not use this term.” Id. Moreover, “[i]n doing so, we clarify that subjective symptom evaluation is not an examination of an individual's character[] [i]nstead, we will more closely follow our regulatory language regarding symptom evaluation.” Id. This ruling is consistent with the previous policy and clarifies rather than changes existing law. Under either ruling, the ALJ is required to consider the claimant's report of her symptoms against the record-in SSR 96-7p, this resulted in a “credibility” analysis; in SSR 16-3, this allows the adjudicator to evaluate “consistency.” Compare SSR 16-3p with SSR 96-7p (both rely on two step process followed by an evaluation of claimant's testimony and contain the same factors for consideration). “The change in wording is meant to clarify that administrative law judges aren't in the business of impeaching claimants' character,” but “obviously administrative law judges will continue to assess the credibility of pain assertions by applicants, especially as such assertions often cannot be either credited or rejected on the basis of medical evidence.” Cole v. Colvin, 831 F.3d 411, 412 (7th Cir. 2016).
While questions of credibility are functions solely for the ALJ, this Court “cannot affirm such a determination unless it is supported by specific findings and reasoning.” Robbins v. Comm'r Soc. Sec. Admin. 466 F.3d 880, 885 (9th Cir. 2006). “To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). “First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment ‘which could reasonably be expected to produce the pain or other symptoms alleged.'” Id. at 1036 (quoting Bunnellv. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)). “Second, if the claimant meets this first test and there is no evidence of malingering, ‘the ALJ can reject the claimant's testimony about the severity of the symptoms only by offering specific, clear and convincing reasons for doing so.'” Lingenfelter, 504 F.3d at 1036 (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). “This is not an easy requirement to meet: The clear and convincing standard is the most demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014). Further, “[t]he ALJ must specifically identify what testimony is credible and what testimony undermines the claimant's complaints.” Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999).
While it is permissible for an ALJ to look to the objective medical evidence as one factor in determining credibility, the ALJ's adverse credibility finding must be supported by other permissible evidence in the record. Bunnell, 947 F.2d at 346-47 (“adjudicator may not discredit a claimant's testimony of pain and deny disability benefits solely because the degree of pain alleged by the claimant is not supported by objective medical evidence”). However, “an ALJ may reject a claimant's statements about the severity of his symptoms and how they affect him if those statements are inconsistent with or contradicted by the objective medical evidence.” Robbins, 466 F.3d at 887. “Factors that an ALJ may consider in weighing a claimant's credibility include reputation for truthfulness, inconsistencies in testimony or between testimony and conduct, daily activities, and unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment.” Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007) (internal quotations and citations omitted).
Here, the ALJ did not make a finding that Plaintiff was malingering; therefore, to support his discounting of Plaintiff's assertions regarding the severity of their mental health symptoms, the ALJ had to provide clear and convincing, specific reasons. The undersigned finds that the ALJ's decision fails to meet this standard. The ALJ merely summarized Plaintiff's testimony as to their physical complaints, then concluded that Plaintiff's statements concerning the intensity, persistence, and limiting effects of their symptoms were not entirely consistent with the medical and other evidence of record. (AR 114-15). While the ALJ also summarized Plaintiff's mental health treatment, the ALJ primarily highlighted some normal examination findings and a few statements Plaintiff made that their symptoms were well controlled with medication, that they got along well with others, that they were able to perform some activities such as driving and cooking independently, and that they took several trips on a plane. (AR 115-16). What the ALJ did not do is point to any particular statements Plaintiff made regarding their mental health symptoms that the ALJ found not credible, nor did the ALJ identify any alleged inconsistencies between Plaintiff's testimony and the medical record. See Morgan, 169 F.3d at 599; Smolen, 80 F.3d at 1284 (“The ALJ must state specifically what symptom testimony is not credible and what facts in the record lead to that conclusion”); A.B. v. Saul, 2019 WL 6139163, at *7 (C.D. Cal. July 23, 2019) (ALJ “committed error by failing to discuss which of Plaintiff's symptom statements were contradicted by the objective medical evidence in the record” and failed to “link specific parts of Plaintiff's testimony ‘to the particular parts of the record' to support his rejection of Plaintiff's testimony.” (citation omitted)).
The ALJ also summarized Plaintiff's treatment for complaints of chronic pain, noting some findings were mild or unremarkable and that one provider opined that Plaintiff's pain had a large psychiatric component. (AR 115). The ALJ stated that although Plaintiff testified that they must use a wheelchair essentially all the time when outside the home, notes in the medical record indicated that Plaintiff's use of a wheelchair or cane appeared to be intermittent. The ALJ then stated that despite this, he found Plaintiff was limited to sedentary work that allows for use of a wheelchair due to documentation of reduced strength in Plaintiff's lower extremities. Even assuming that this analysis by the ALJ serves as a clear and convincing reason to discount Plaintiff's subjective complaints of physical pain, it is insufficient to discount Plaintiff's mental impairment testimony.
After summarizing the CE exam, the ALJ concluded:
Based on the foregoing, the undersigned finds the claimant has the above residual functional capacity assessment, which is Sorted by the totality of the medical evidence, objective ngs, and the opinions of the individuals who have had the opportunity to assess the claimant and her abilities, as well as the subjective allegations of the claimant. Furthermore, her symptoms are not so severe as to prohibit her from performing all basic work activities. The residual functional capacity set forth above addresses the claimant's symptoms to the degree supported by the evidence as a whole.(AR 117). Yet despite the ALJ declaring that the RFC was based on all the evidence of record-including Plaintiff's subjective allegations-nowhere in his decision does the ALJ explain what portions of Plaintiff's testimony regarding their mental impairments he found credible, or how he incorporated the statements that he did find credible into the RFC assessment. Similarly, while the ALJ stated that Plaintiff had mild and moderate limitations under the Paragraph B criteria “as discussed more fully below,” the ALJ never explained why he found that Plaintiff was so limited, nor did he offer any examples as to how Plaintiff's functioning in these areas was impaired. (AR 113). Specific to the issue raised by Plaintiff here-that the ALJ should have included additional limitations in the RFC relating to persistence and interacting with others-the ALJ never discussed whether he found Plaintiff's statements regarding their limitations in these areas to be credible or inconsistent with the record.
To the extent that the ALJ's decision can be read as assigning reduced weight to Plaintiff's testimony because Plaintiff made some statements that their mental health conditions improved with medication and the record documents some normal psychiatric exam findings, the undersigned finds that this is not a clear and convincing reason to discount Plaintiff's testimony. The record contains approximately 300 pages of notes documenting Plaintiff's mental health treatment at COPE and CODAC from 2015 to 2018, including detailed summaries of Plaintiff's individual therapy sessions. In addition, there are nearly 200 pages of notes from El Rio Community Health Center and Chiricahua Community Health Centers, where Plaintiff was treated for physical and mental health conditions from 2014 to 2017. The record reflects that while at times Plaintiff reported improved symptoms and functioning, Plaintiff also continued to struggle with their mental health issues and life stressors. “[I]t is error to reject a claimant's testimony merely because symptoms wax and wane in the course of treatment . . . [and r]eports of ‘improvement' in the context of mental health issues must be interpreted with an understanding of the patient's overall well-being and the nature of her symptoms.” Garrison, 759 F.3d at 1017. “They must also be interpreted with an awareness that improved functioning while being treated and while limiting environmental stressors does not always mean that a claimant can function effectively in a workplace.” Id.; see also Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001). Nor may the ALJ cherry-pick the evidence to support a finding of non-disability. See Garrison, 759 F.3d at 1014 n.23. Taken as a whole, the medical record illustrates Plaintiff's long-term struggle with mental health issues and documents that Plaintiff continued to struggle with the symptoms of their conditions despite receiving medication and therapy.
For the same reasons, the ALJ's citation to a single provider's note that she did not support Plaintiff's application for disability cannot serve as a blanket reason to discount Plaintiff's testimony. (AR 115-16). The note the ALJ refers to is from March 22, 2016, where Dr. Combs stated that Plaintiff needed to be compliant with treatment by participating in DBT in order for Dr. Combs to support temporary disability, and that Dr. Combs was not in support of long-term disability because in her opinion, “withdrawing from the workforce indefinitely will only contribute to continued decline of function as well as perpetuate symptoms of mood instability and depression.” (AR 309). While Dr. Combs' opinion is no doubt relevant, it must also be considered in the context of the record as a whole documenting Plaintiff's continued treatment and struggles with the symptoms of their mental impairments. See Garrison, 759 F.3d at 1014 n.23.
Finally, to the extent that the ALJ's decision can be read as discounting Plaintiff's subjective symptom testimony as inconsistent with Plaintiff's daily activities, the undersigned finds that this is not a clear and convincing reason to discount Plaintiff's testimony. While daily activities may be grounds for an adverse credibility finding “to the extent that they contradict the claims of a totally debilitating impairment,” Molina, 674 F.3d at 1112-13, or “if a claimant is able to spend a substantial part of his day engaged in pursuits involving the performance of physical functions that are transferrable to a work setting[,]” Orn, 495 F.3d at 639 (citation omitted), neither of these grounds applies here. Nor did the ALJ make any specific findings as to Plaintiff's activities and their transferability or how Plaintiff's activities contradicted their testimony. See Orn, 495 F.3d at 639. In summarizing Plaintiff's mental health treatment, the ALJ noted that Plaintiff reported getting along well with others, making new friends at work, liked to crochet and sew, and was able to shop, cook, and drive to work independently. (AR 115). These statements were reported on a COPE form that appears to be from December 10, 2015, several months prior to Plaintiff's alleged disability onset date. Further, the record reflects that over time, Plaintiff reported increasingly limited daily activities and difficulty functioning. See, e.g., AR 23-31 (Plaintiff's hearing testimony describing inability to do much on their own due to physical impairments and spending most of their time watching TV or playing on their phone). Regardless, “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[,]” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001), and “impairments that would unquestionably preclude work and all the pressures of a workplace environment will often be consistent with doing more than merely resting in bed all day.” Garrison, 759 F.3d at 1016. For the same reasons, the fact that Plaintiff took two or three trips by plane during the relevant time period cannot serve as a legitimate reason to wholesale reject Plaintiff's statements regarding their mental impairments. See Garrison, 759 F.3d at 1016 (“disability claimants should not be penalized for attempting to lead normal lives in the face of their limitations” (citation omitted)).
The Court cannot meaningfully review the ALJ's decision when the ALJ fails to set forth his reasoning. While the Commissioner is not required to “discuss all evidence” the Commissioner is required to “make fairly detailed findings in support of administrative decisions to permit courts to review those decisions intelligently” and “must explain why significant probative evidence has been rejected.” Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394 (9th Cir. 1984) (internal quotations and citation omitted). Here, the undersigned finds that the ALJ failed to articulate clear and convincing reasons for rejecting Plaintiff's subjective symptom testimony-indeed, the ALJ failed to provide any reasons at all, save for the standard boilerplate language that Plaintiff's statements were “not entirely consistent” with the record. The Court further finds that this error was not harmless. See Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (“Because the ALJ failed to identify the testimony she found not credible, she did not link that testimony to the particular parts of the record supporting her non-credibility determination. This was legal error.”). The adverse credibility finding affected the ALJ's assessment of the medical opinions, the RFC assessment, and the hypothetical posed to the VE. See Embrey v. Bowen, 849 F.2d 418, 423 (9th Cir. 1988) (finding VE opinion could not be relied on where ALJ failed to provide clear and convincing reasons to reject claimant's testimony and did not include claimant's subjective limitations in the RFC). Thus, this error was harmful because it affected the ultimate nondisability determination. See Molina, 674 F.3d at 1115; Brown-Hunter, 806 F.3d at 494 (“[H]ere, we cannot discern the agency's path because the ALJ made only a general credibility finding without providing any reviewable reasons why she found [plaintiff's] testimony to be not credible.”).
V. Remedy
A federal court may affirm, modify, reverse, or remand a social security case. 42 U.S.C. § 405(g). Absent legal error or a lack of substantial evidence supporting the ALJ's findings, this Court is required to affirm the ALJ's decision. After considering the record as a whole, this Court simply determines whether there is substantial evidence for a reasonable trier of fact to accept as adequate to support the ALJ's decision. Valentine, 574 F.3d at 690.
“[T]he decision whether to remand the case for additional evidence or simply to award benefits is within the discretion of the court.” Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989) (quoting Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985)). “Remand for further administrative proceedings is appropriate if enhancement of the record would be useful.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). Conversely, remand for an award of benefits is appropriate 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, 759 F.3d 995 at 1020. “Even if those requirements are met, though, we retain ‘flexibility' in determining the appropriate remedy.” Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014) (quoting Garrison, 759 F.3d at 1021).
“[T]he required analysis centers on what the record evidence shows about the existence or non-existence of a disability.” Strauss v. Comm'r Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011). “Administrative proceedings are generally useful where the record has not been fully developed, there is a need to resolve conflicts and ambiguities, or the presentation of further evidence may well prove enlightening in light of the passage of time.” Treichler, 775 F.3d at 1101 (internal quotations and citations omitted). “Where there is conflicting evidence, and not all essential factual issues have been resolved, a remand for an award of benefits is inappropriate.” Id. “In evaluating [whether further administrative proceedings would be useful, the Court considers] whether the record as a whole is free from conflicts, ambiguities, or gaps, whether all factual issues have been resolved, and whether the claimant's entitlement to benefits is clear under the applicable legal rules.” Id. at 1103-04. “This requirement will not be satisfied if ‘the record raises crucial questions as to the extent of [a claimant's] impairment given inconsistencies between his testimony and the medical evidence in the record,' because ‘[t]hese are exactly the sort of issues that should be remanded to the agency for further proceedings. '” Brown Hunter, 806 F.3d at 495 (quoting Treichler, 775 F.3d at 1105).
Here, the undersigned finds that remand for further administrative proceedings is appropriate. See Burrell, 775 F.3d at 1141 (court retains flexibility in determining the appropriate remedy). The ALJ erred by failing to set forth legally sufficient reasons to discount Plaintiff's subjective symptom testimony. Consequently, issues remain regarding Plaintiff's RFC and their ability to perform work existing in significant numbers in the national economy during the relevant time period. See Hill v. Astrue, 698 F.3d 1153, 116263 (9th Cir. 2012) (remand for further proceedings appropriate where ALJ's RFC determination was flawed and hypothetical to VE was incomplete and included incorrect assumptions); Embrey, 849 F.2d at 423. However, although Plaintiff's conditions may be considered severe, the undersigned offers no opinion as to whether Plaintiff is disabled within the meaning of the Act. “The touchstone for an award of benefits is the existence of a disability, not the agency's legal error.” Brown-Hunter, 806 F.3d at 495. Plaintiff's RFC and subjective symptom testimony are best reassessed in consideration of the entire record, and on remand the undersigned recommends that the ALJ give further consideration to all of the previously submitted medical testimony and lay testimony and continue the sequential evaluation process to determine whether Plaintiff is in fact disabled.
“Viewing the record as a whole [the undersigned] conclude[s] that Claimant may be disabled. But, because the record also contains cause for serious doubt, [the undersigned recommends] . . . that the district court remand to the ALJ for further proceedings on an open record.” Burrell, 775 F.3d at 1141-42. The undersigned expresses no view as to the appropriate result on remand.
VI. Recommendation
For the foregoing reasons, the Magistrate Judge recommends that the District Court, after its independent review, remand this matter for further administrative proceedings.
Pursuant to 28 U.S.C. §636(b), any party may serve and file written objections within fourteen days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen days after being served with a copy thereof. Fed.R.Civ.P. 72(b). No reply to any response shall be filed. See id. If objections are not timely filed, then the parties' rights to de novo review by the District Court may be deemed waived. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).