Opinion
23cv1464-LL (MSB)
07-29-2024
SHAWN W.,[1] Plaintiff, v. MARTIN O'MALLEY, Acting Commissioner of Social Security,[2] Defendant.
REPORT AND RECOMMENDATION
AONORABLE MICHAEL S. BERG, UNITED STATES MAGISTRATE JUDGE.
Now pending before the Court is Plaintiff's appeal of the Social Security Administration's denial of Plaintiff's application for disability benefits (“Motion”), claiming error by the Administrative Law Judge (“ALJ”) who conducted the administrative hearing and issued the decision. (ECF No. 11.) The Court has carefully reviewed the Complaint [ECF No. 1], the Administrative Record (“AR”) [ECF No. 8], Plaintiff's Motion [ECF No. 11], the Commissioner's Opposition [ECF No. 13], and Plaintiff's Reply [ECF No. 14]. For the reasons set forth below, the Court RECOMMENDS that that judgment be entered REVERSING the Commissioner's decision and REMANDING this matter for further administrative proceedings consistent with this Order.
I. PROCEDURAL BACKGROUND
On March 20, 2020, Plaintiff filed an application for supplemental security income (“SSI”) under Title XVI of the Social Security Act, alleging disability beginning on March 1, 2020. (AR 240-46.) The Commissioner denied Plaintiff's application initially on February 19, 2021, and again upon reconsideration on August 2, 2021. (AR 71-102.) Plaintiff requested an administrative hearing on October 1, 2021. (AR 122.) ALJ Michael B. Richardson held a telephonic hearing on August 18, 2022.(AR 34-64.) Plaintiff appeared at the hearing with counsel, and the ALJ heard testimony from Plaintiff, a medical expert, and an impartial vocational expert. (Id.)
Due to a medical emergency, Plaintiff was unable to attend the initial telephonic hearing on March 10, 2022. (AR 65-70.) Plaintiff's counsel appeared on his behalf, and the ALJ granted a postponement without hearing any testimony. (See AR 67.)
As detailed in the ALJ's decision dated October 21, 2022, the ALJ found that Plaintiff had not been disabled under the Social Security Act at any time from the alleged onset date through the date of the ALJ's decision. (AR 12-33.)
Plaintiff requested review of the ALJ's decision on November 4, 2022. (AR 23739.) The Appeals Council denied Plaintiff's request for review on June 13, 2023, rendering the ALJ's decision the final decision of the Commissioner. (AR 1-6.) See also 42 U.S.C. § 405(h). Plaintiff filed the instant civil action on August 10, 2023, seeking judicial review of the Commissioner's decision under 42 U.S.C. § 405(g). (See ECF No. 1.) II. SUMMARY OF THE ALJ'S FINDINGS
The ALJ found that claimant is under a disability, but a substance use disorder is a contributing factor material to the determination of disability, and therefore, Plaintiff is not disabled under the Social Security Act. (AR 16.) In rendering his decision, the ALJ followed the five-step sequential evaluation process set forth in 20 C.F.R. § 404.1520. (Id.) Because of Plaintiff's substance use disorder, the ALJ also needed to determine whether the substance use disorder is a contributing factor material to the determination of disability. (Id.) If that is the case, the claimant is not under a disability. (Id.) The ALJ assessed this issue by evaluating the extent to which the claimant's mental and physical limitations would remain if the claimant stopped the substance use. (AR 17 (citing 20 CFR § 416.935).)
At step one, the ALJ found that Plaintiff has “not engaged in substantial gainful activity since March 1, 2020, the alleged onset date.” (Id.) At step two, the ALJ found that Plaintiff has the following severe impairments: “polysubstance abuse disorder (methamphetamines and alcohol); an unspecified anxiety disorder; a depressive disorder secondary to or aggravated by polysubstance abuse; an unspecified psychotic disorder; antisocial personality disorder; posttraumatic stress disorder (hereinafter “PTSD”); and chronic back pain/sprain/strain.” (AR 17-18.)
At step three, the ALJ found that, including Plaintiff's substance use, Plaintiff's combination of impairments is of a severity to meet the criteria of an impairment identified in the Commissioner's Listing of Impairments. (AR 18.) However, the ALJ also found that, “[i]f the claimant stopped the substance use, the claimant would not have an impairment or combination of impairments that meets or medically equals the severity of one of the impairments” in the Commissioner's Listing of Impairments. (AR 20.)
Before considering step four of the sequential evaluation process, the ALJ determined that, if Plaintiff stopped substance use, Plaintiff would have the residual functional capacity (“RFC”) to:
[P]erform light work . . . except: He is unable to climb ladders, ropes, or scaffolds, but is able to occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; He needs to avoid
concentrated exposure to extreme cold, vibrations, and hazards such as dangerous moving machinery and unprotected heights; and lastly, he is able to understand, remember, and carry out simple, routine, repetitive tasks with no work-related interaction with the general public but occasional interaction with co-workers and supervisors.(AR 23.)
At step four, the ALJ concluded that Plaintiff has no past relevant work, and so the transferability of job skills is not an issue in this case. (AR 26.) At step five, the ALJ found that, if Plaintiff stopped substance use, “considering the [Plaintiff]'s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the [Plaintiff] can perform.” (AR 2627.) Ultimately, the ALJ found that Plaintiff would not be disabled if he stopped substance use, and “[b]ecause the substance use disorder is a contributing factor material to the determination of disability, the [Plaintiff] has not been disabled within the meaning of the Social Security Act ....” (AR 27 (citing 20 CFR §§ 416.920(g) and 416.935).)
III. DISPUTED ISSUES
Plaintiff raises two issues as the basis for reversal and remand: (1) that the ALJ failed to provide clear and convincing reasons for discounting Plaintiff's allegations of “mental dysfunction,” and (2) that the ALJ failed to explain his departure from the mental work restrictions assessed by the consultive psychiatric examiner, Ernest Bagner, M.D. (Mot. at 2, 5.)
IV. STANDARD OF REVIEW
Section 405(g) of the Social Security Act allows unsuccessful claimants to seek judicial review of the Commissioner's final decision. See 42 U.S.C. § 405(g). The scope of judicial review is limited, and the denial of benefits will only be disturbed if it is not supported by substantial evidence in the record or is based upon legal error. Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018) (citations omitted). The United States Supreme Court interprets “substantial evidence” to mean “more than a mere scintilla,” but only “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). The Ninth Circuit further explains that substantial evidence is “less than a preponderance.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (quoting Desrosiers v. Sec'y of Health & Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988)).
When the evidence is susceptible to more than one rational interpretation, the ALJ's decision must be upheld. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citing Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). While the ALJ is “responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities[,]” those findings must be supported by “specific, cogent reasons.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citing Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir.1990)). The reviewing court may enter a “judgment affirming, modifying, or reversing” the Commissioner's decision. 42 U.S.C. § 405(g). The reviewing court may also remand the case to the Social Security Administration (“SSA”) for further proceedings. Id.
V. DISCUSSION
A. Whether the ALJ Failed to Provide Specific, Clear, and Convincing Reasons for Discounting Plaintiff's Subjective Symptom Testimony
1. Summary of the parties' arguments
Plaintiff reported symptoms of paranoia, auditory hallucinations, nightmares, a depressed mood, impairments in attention and concentration, and problems with sleep and anxiety. (Mot. at 2.) Plaintiff argues that the ALJ can only reject allegations of psychiatric impairments by offering clear and convincing reasons for doing so. (Id.) Plaintiff contends that the ALJ improperly discounted the evidence of Plaintiff's psychiatric impairments because Plaintiff did not comply with prescribed psychiatric treatment. (Id. at 3.) Plaintiff argues that individuals with psychiatric impairments have difficulty taking medication as prescribed, and the courts are sympathetic to this claim where there is evidence in the record to suggest that the claimant was non-compliant with psychiatric treatment due to the claimant's underlying psychiatric impairments. (Id. at 3-4.) Here, the fact that Plaintiff could not manage his psychiatric treatment, supposedly due to his underlying psychiatric impairments, demonstrated his inability to maintain gainful employment. (Id. at 4.)
In response, the Commissioner contends that the ALJ properly evaluated Plaintiff's subjective complaints. (Opp'n at 2.) Here, the ALJ found that Plaintiff's impairments could produce the alleged symptoms, but Plaintiff's statements concerning the intensity and persistence of those symptoms were not consistent with evidence in the record. (Id. at 3-4.) First, the record reveals that Plaintiff refused to take prescribed medication and that there were significant gaps in Plaintiff's history of psychiatric treatment. (Id. at 5-6.) The Commissioner argues that an ALJ may properly rely on a failure to seek or follow treatment when evaluating subjective complaints, absent compelling reasons for such a failure. (Id. at 7.) Second, the record indicates that Plaintiff's psychiatric symptoms were not severe. (See id. at 4-5.) Specifically, the Commissioner notes the ALJ's reliance upon treatment notes from Dr. Bagner, who examined Plaintiff in December 2020 and concluded that Plaintiff was alert and oriented and had normal speech and normal thought content. (See id. at 4.) The ALJ also relied upon treatment records from the Spine Institute of San Diego, where Plaintiff was examined in July 2020 and October 2020, noting that Plaintiff was alert and oriented, with normal mood and affect. (Id. at 5.) Thus, the Commissioner contends that the ALJ's findings are supported by substantial evidence. (Id.)
2. Applicable law
Although Plaintiff describes his first issue as “discounting [his] allegations of mental dysfunction,” both parties cite cases that refer to the standard for assessing subjective symptom testimony. (See Mot. at 2-4.) Accordingly, the Court will analyze whether the ALJ properly evaluated Plaintiff's subjective symptom testimony regarding his “severe psychiatric impairments.” (Id.) An ALJ cannot demand objective medical evidence to “fully corroborate” every allegation within a claimant's subjective testimony. Smartt v. Kijakazi, 53 F.4th 489, 498 (9th Cir. 2022) (quoting Burch, 400 F.3d at 680). Instead, an ALJ is required to provide clear and convincing reasons for rejecting a claimant's subjective symptom testimony. See Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (rejecting or discounting a claimant's symptom testimony requires “specific findings stating clear and convincing reasons”).
3. Plaintiff's testimony
Plaintiff alleges disability due to “severe psychiatric impairments,” such as a “psychotic disorder (diagnosed as schizophrenia by history), and PTSD.” (Mot. at 3.) Plaintiff reported symptoms of paranoia, auditory hallucinations, nightmares, a depressed mood, impairments in attention and concentration, and problems with sleep and anxiety. (AR 1189, 1191.) He also reported to have auditory hallucinations, a dysthymic mood, and impaired judgment and insight. (AR 1190, 1191.)
During the administrative hearing, Plaintiff admitted to not having taken the prescribed treatment because it affected his bowel movements, made him feel like he could not breathe, made him feel apprehensive, and made him sleep for long periods of time, causing him to feel “lethargic and weird.” (AR 47.) Plaintiff also admitted to “selfmedicating” to cope with his psychiatric symptoms. (Id.)
Plaintiff stated that he hears “voices” whether he is “medicating” or sober, and he admitted that when he is “sober and functioning” he can deal with the hallucinations. (AR 55.) Plaintiff also discussed his inability to return to work full-time because of his psychiatric impairments. He explained that “under optimal conditions” he may have been able to work for an hour or two a day, which was “conditional on how people had to treat” him. (AR 56.) He noted that all his prior supervisors are “plotting” against him with “an agenda and it's hidden.” (AR 57.)
4. The ALJ's findings
The ALJ found that “the claimant's medically determinable impairments could reasonably be expected to produce the alleged symptoms, and that the claimant's statements concerning the intensity, persistence, and limiting effects of these symptoms are generally consistent with the evidence when the substance use is included in the analysis.” (AR 19.) However, “the claimant's statements concerning the intensity, persistence, and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision[,]” and “if the claimant stopped substance use, the claimant's mental impairments are not so severe as to be disabling.” (AR 23.) The ALJ considered that Plaintiff reported being sober from July 2020 and October 2020 and did not disclose his substance abuse history to Dr. Bagner in December 2020, so he may have been “relative[ly] sober.” (AR 23.) The ALJ was also cognizant of Plaintiff's history of substance use and cited multiple times that Plaintiff was still using substances, which affected his abilities. (AR 18-19.)
The ALJ considered claimant's allegations that “he has difficulty remembering generally, following instructions, and completing tasks.” (AR 21.) However, the ALJ noted inconsistencies:
[T]he claimant also stated that he could prepare meals, pay bills, go to doctor's appointments, take public transportation, and shop. In addition, the record shows that the claimant was able to provide information about his health, describe his prior work history, respond to questions from medical providers, and there is [sic] any mention of any issues with the claimant's short- or long-term memory (Exhibit 7E). Psychiatric consultative examiner, Dr. Ernest Bagner, examined the claimant in December 2020. Dr. Bagner note[sic] that the claimant was a poor historian, recalled three out of three objects immediately and zero out of three objects in five minutes. He recalled what he had for breakfast and his date of birth. Dr. Bagner found that the claimant has mildly limited ability to follow simple, oral and written instructions. He has moderately limited ability to follow detailed instructions (Exhibit 5F). The claimant did not disclose to Dr. Bagner his substance abuse history, so this evaluation may have been done during a period of relative sobriety (Exh.5F4-5), and at the very least did not consider the potential effects of polysubstance abuse. Notably, when seeking an evaluation to help him with his upcoming SSI claim, the claimant also denied illicit drug use (Ex. 12F2).
(AR 21.) The ALJ also acknowledged claimant's allegations that “he has limitations in concentrating generally, focusing generally, following instructions, completing tasks, and maintaining a regular work schedule.” However, the ALJ rebutted Plaintiff's allegations in observing:
On the other hand, the claimant said that he is also able to drive, prepare meals, watch TV, manage funds, and handle his own medical care. Additionally, the record fails to show any mention of distractibility and an inability to complete testing that assesses concentration and attention. The record reveals that the claimant complained of auditory hallucinations but otherwise had logical, goal directed, and coherent thought process. He was alert and oriented. He had intact attention and concentration (Exhibits 7E, 12F). Dr. Bagner note[sic] that the claimant had normal thought processes and normal thought content. He admitted to auditory hallucinations. He was alert and oriented. He was able to perform serial 7s and serial 3s. He spelled the word ‘music' forward and backwards. Dr. Bagner diagnosed the claimant with PTSD and rule[sic] out antisocial personality disorder. The claimant did not disclose to Dr. Bagner his substance abuse history, so this evaluation may have been done during a period of relative sobriety (Exh. 5F4-5), and at the very least did not consider the potential effects of polysubstance abuse. Dr. Bagner found that the claimant has mildly limited ability to follow simple, oral and written instructions. He has moderately limited ability to follow detailed instructions. He has mildly limited ability [to] comply with job rules such as safety and attendance. He has mildly limited ability to respond to changes in a routine work setting. He has moderately limited ability to respond to work pressure in a usual work setting (Exhibit 5F).
(AR 22.) The ALJ further considered claimant's allegations that “he has difficulties handling change and managing his mood.” (Id.) However, the ALJ found that
[T]he claimant also stated that he is able to handle self-care and personal hygiene. Meanwhile, the objective evidence in the record showed the claimant to have appropriate grooming and hygiene, no problem getting along well with providers and staff, and no problems with temper control. The claimant did not disclose to Dr. Bagner his substance abuse history, so this evaluation may have been done during a period of relative sobriety (Exh. 5F4-5), and at the very least did not consider the potential effects of polysubstance abuse. Dr. Bagner found that the claimant has moderately limited daily activities (Exhibits 7E, 5F).
(Id.) Additionally, the ALJ acknowledged Plaintiff's allegations “that he experiences panic attacks and nightmares due to history of incarceration[;] . . . difficulty with personal care . . . [because] he needs reminders to take care of personal needs and grooming[;] . . . difficulty with . . . completing tasks, concentration, understanding, and getting along with others.” (AR 23.) For these, the ALJ cited the above contradictions in the medical record, as well as “significant gaps in his history of treatment, with no evidence of any mental health treatment between March 2020, the alleged onset date, until April 2022 when he sought an evaluation to help him with his SSI claim.” (AR 24.) The ALJ accepted that the treatment notes in April 2022 and June 2022 reveal Plaintiff complained of symptoms of his mental impairments, but he noted, “when seeking this evaluation to help him with his upcoming SSI claim, the claimant also denied illicit drug use.” (Id.) The ALJ explained that
[Plaintiff's] mental status examinations reveal relatively stable findings. The claimant was noted to have dysthymic mood. He also endorsed auditory hallucinations. However, he was otherwise appropriately groomed with fair eye contact. He had no psychomotor agitation or depression. He had normal speech. He had normal thought content. He had logical, goal directed, and coherent thought process. He was alert and oriented. He had intact attention and concentration. While he had impaired judgment, he did have intact insight. The record also reveals that the claimant was not taking any psychotropic medication and did not wish to take medication to treat his symptoms (Exhibit 12F).
(AR 24.) This was also supported by treatment notes from Sharp Grossmont Hospital in August 2022, which “reveal[ed] that the claimant was alert and oriented [and that] he had no signs of depression, anxiety, or agitation.” (Id.)
5. Analysis
The ALJ seems to have rejected Plaintiff's subjective symptom testimony for three reasons: (1) Plaintiff's refusal to seek or follow mental health treatment; (2) the medical record does not support Plaintiff's allegations of severe psychiatric impairment; and (3) his daily activities contradict his allegations. Plaintiff only criticizes the ALJ's assessment of his refusal to take medication or seek mental health treatment. If the Court finds the ALJ erred in that assessment, the Court will then review the other two reasons to determine whether other clear and convincing evidence supports the ALJ's decision to discredit Plaintiff's testimony.
a. The ALJ erred by disregarding Plaintiff's reasons for his refusal to seek or follow mental health treatment
The ALJ discounts the severity of Plaintiff's symptoms in part because of “significant gaps in his history of treatment, with no evidence of any mental health treatment between March 2020, the alleged onset date, until April 2022 . . . [and] claimant was not taking any psychotropic medication and did not wish to take medication to treat his symptoms.” (AR 24 (citations omitted).) While an ALJ may rely on “unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment” when weighing a claimant's credibility, it is error to reject a claimant's testimony when there are justifiable reasons for failing to comply. Compare Tommasetti, 533 F.3d at 1039 with Pate-Fires v. Astrue, 564 F.3d 935, 945 (8th Cir. 2009).This is because a mentally ill claimant's non-compliance with psychiatric medications “can be, and usually is, the ‘result of [the] mental impairment [itself] and, therefore, neither willful nor without a justifiable excuse.'” Id. (quoting Mendez v. Chater, 943 F.Supp. 503, 508 (E.D. Pa. 1996)).
Generally, if a claimant's alleged impairments can be remedied by treatment, the claimant must follow the treatment prescribed by medical sources if this treatment is expected to restore the claimant's ability to work. 20 C.F.R. § 416.930(a). A claimant who fails to obtain or cooperate with prescribed treatment is disqualified from receiving supplemental security income. 20 C.F.R. § 416.930(b). However, under some circumstances, a claimant's failure to obtain or cooperate with treatment may be justified. See generally 20 C.F.R. § 416.930(c). Although it does not appear the ALJ independently disqualified Plaintiff on this basis, the ALJ would have also been required to assess the reasons Plaintiff neglected prescribed treatment. See 20 C.F.R. § 416.930(c) (“We will consider your . . . mental . . . limitations . . . when determining if you have an acceptable reason for failure to follow prescribed treatment.”).
Ultimately, the ALJ must make a critical distinction between the claimant's “awareness of the need to take [] medication and the question whether [the claimant's] noncompliance with [] medication was a medically-determinable symptom of [the claimant's] mental illness.” Id. The Ninth Circuit aims not to “punish the mentally ill for occasionally going off their medication when the record affords compelling reason to view such departures from prescribed treatment as part of claimants' underlying mental afflictions.” Garrison v. Colvin, 759 F.3d 995, 1018 n. 24 (9th Cir. 2014).
Plaintiff insists that his non-compliance with taking his prescribed medication or regularly pursuing psychiatric treatment “was the product of his mental condition.” (Mot. at 4.) Plaintiff also testified before the ALJ that his prescribed medication impacts his “bowel movements,” makes him feel like he “can't breathe,” causes him to “sleep [his] whole life away,” and makes him “feel lethargic and weird.” (AR 47.) The ALJ's implication that Plaintiff did not wish to take medication to treat his symptoms due to an unjustifiable personal preference is not supported by the evidence in the record. (AR 24.) The ALJ neglected to generally explore justifications for Plaintiff's noncompliance with treatment and implicitly rejected Plaintiff's testimony about the side effects of his prescribed medication because he neither acknowledged Plaintiff's testimony about the side effects of his medication during the hearing nor referenced this testimony in his written decision. Accordingly, the ALJ's conclusion that Plaintiff's lack of treatment discredited Plaintiff's testimony was not clear and convincing. However, this alone does not necessarily warrant reversal and remand because the ALJ set forth other reasons to undermine Plaintiff's subjective symptom testimony.
b. The ALJ failed to give other specific, clear, and convincing evidence to reject Plaintiff's testimony
Although the Court finds that the ALJ did not adequately assess the reasons behind Plaintiff's lack of mental health treatment, the ALJ described two other reasons for discrediting Plaintiff's testimony on the severity of his symptoms: (1) inconsistencies with the medical record and (2) inconsistencies with his daily activities. Although Plaintiff did not submit arguments over the ALJ's analysis of the medical record or daily activities, the Court will assess whether these remaining justifications offer specific, clear, and convincing support that would render the ALJ's error harmless. See e.g., Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (finding that, even if an ALJ's analysis on one factor was erroneous, it was harmless because there were four other independent bases for discounting the claimant's testimony).
i. Plaintiff's medical record was not inconsistent with his testimony
In rejecting Plaintiff's subjective symptom allegations, the ALJ compared Plaintiff's testimony to Plaintiff's medical record. First, nothing in Dr. Bagner's psychiatric evaluation contradicts Plaintiff's allegations. In assessing Plaintiff's claims that he has “difficulty remembering generally, following instructions, and completing tasks[,]” Dr. Bagner's report found that he had some memory issues, limited ability to follow simple and detailed instructions. (AR 21.) For Plaintiff's claims that he has difficulty “engaging in social activities, getting along with others, and spending time in crowds.” (Id.) The ALJ believes Dr. Bagner's opinion that Plaintiff was “tense but cooperative . . . [,] had good eye contact . . . [,] had normal speech . . . [and] had no psychomotor retardation” contradicts Plaintiff's allegations, but it is not apparent how that negates or relates to them. (Id.) Plaintiff also alleged he has difficulty “concentrating generally, focusing generally, following instructions, completing tasks, and maintaining a regular work schedule.” (AR 22.) Dr. Bagner concluded that Plaintiff has limited ability to follow simple and detailed instructions, comply with job rules, respond to changes in routine work setting, and respond to work pressure in a usual work setting. (Id.)
Second, adjudicators must consider a claimant's co-occurring mental impairments when they evaluate the credibility of the claimant's allegations. SSR 13-2p, 78 Fed.Reg. 11945 (Feb. 20, 2013). In addition to polysubstance abuse disorder, Plaintiff suffers from co-occurring mental impairments including an anxiety disorder, a depressive disorder, a psychotic disorder, an antisocial personality disorder, and PTSD. (AR 17-18.) However, the ALJ did not analyze how, if at all, he considered the interplay between Plaintiff's polysubstance abuse disorder and his co-occurring mental impairments. Instead, the ALJ's decision directly contravenes the rulings of the Social Security Administration.
Instead, the ALJ relied upon treatment notes from April 2022 and June 2022 to conclude that Plaintiff's mental status examinations revealed “relatively stable findings.” (AR 24.) Treatment notes from August 2022 revealed that Plaintiff was alert and oriented with no signs of depression, anxiety, or agitation. (Id.) The Commissioner argues that this objective medical evidence is inconsistent with Plaintiff's subjective symptom testimony. (Opp'n at 4-5.) The ALJ's reliance on isolated instances of Plaintiff's cooperation is not sufficient to undermine Plaintiff's credibility, as these behaviors can be consistent with disability, especially in structured environments. See Crump v. Saul, 932 F.3d 567, 571 (7th Cir. 2019) (the ability to “pay attention in the doctor's office and thus in the context of a structured, relatively short mental health examination, [is] an altogether different environment than a full day at a competitive workplace with sustained demands”). Occasional symptom-free periods are not inconsistent with a determination of disability. Jajo v. Astrue, 273 Fed.Appx. 658, 661 (9th Cir. 2008) (citation omitted). It is improper for an ALJ to “single out moments of good health to discredit a claimant, especially in cases involving mental impairments, which often present episodically.” Delegans v. Colvin, 584 Fed.Appx. 328, 331 (9th Cir. 2014). As Plaintiff testified, he can work and interact with people for short periods of time as needed, but that does not necessarily translate to an ability to work a full day with sustained demands. Accordingly, the medical record does not appear to contradict Plaintiff's subjective testimony.
As an added layer of ambiguity, the ALJ concludes that Plaintiff's impairments would meet the severity criteria at step three when including substance abuse, but he does not specify how his conclusion changes when Plaintiff is not using substances. For example, the ALJ uses treatment notes from 2022 to support his conclusion that Plaintiff met the criteria for disability and uses the same ones to support that the Plaintiff's “mental status examinations reveal relatively stable findings.” (Compare AR 19 with AR 24.) These cherry-picked notes undercut the ALJ's credibility analysis. See Overton v. Berryhill, No. 17cv25-BEN, 2017 WL 5159550, at *1, *18 (S.D. Cal. Nov. 16, 2017) (finding the ALJ erred when evaluating a plaintiff's credibility by cherry-picking segments of recreational therapy notes and ignoring other segments of the same notes), report and recommendation adopted, 2018 WL 1561315 (S.D. Cal. Mar. 27, 2018).
ii. Plaintiff's daily activities were not inconsistent with his testimony
The ALJ also compares Plaintiff's subjective allegations to his daily activities. The ALJ pointed out that, although Plaintiff claimed to have “difficulty engaging in social activities, getting along with others, and spending time in crowds[,]” Plaintiff is “able to shop, spend time with friends and family, and take public transportation.” (AR 21.) Similarly, Plaintiff's ability to “drive, prepare meals, watch TV, manage funds, and handle his own medical care” rebutted his claim that he has trouble “concentrating generally, focusing generally, following instructions, completing tasks, and maintaining a regular work schedule.” (AR 22.)
Daily activities may be used to discredit an individual's testimony about the severity of Plaintiff's symptoms if: (1) the activities contradict the individual's other testimony, or (2) the activities meet the threshold for transferable work skills. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). The Ninth Circuit has advised that “ALJs must be especially cautious in concluding that daily activities are inconsistent with testimony about pain, because 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; Albertson v. Colvin, 659 Fed. App'x 372, 374 (9th Cir. 2016) (holding the claimant's ability to perform basic household chores and occasionally run errands was consistent with his claims of pain). The Ninth Circuit has also “repeatedly asserted that the mere fact that a plaintiff has carried on certain daily activities . . . does not in any way detract from her credibility as to her overall disability. One does not need to be ‘utterly incapacitated' in order to be disabled.” Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (quoting Fair, 885 F.2d at 603.) Further, “disability claimants should not be penalized for attempting to lead normal lives in the face of their limitations.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (citations omitted). In Vertigan, the court determined an ALJ erred by discrediting a claimant's pain allegations because she could “go grocery shopping with assistance, walk approximately an hour in the malls, get together with her friends,” among other activities. Vertigan, 260 F.3d at 1050. The Court concluded that, because these activities did not consume a substantial part of the claimant's day, it only amounted to a “scintilla of evidence in the record[.]” Id.
Here, Plaintiff's daily activities are not contradictory to his subjective testimony nor are they necessarily transferable to the work setting. Plaintiff's ability to temporarily interact with others and go out in public does not contradict his testimony that he has difficulty with social activities, getting along with others, and spending time in crowds-especially for extended periods of time. His ability to drive, prepare meals, watch TV, manage funds, and handle his own medical care also does not negate his claim that he has trouble concentrating, focusing, following instructions, completing tasks, and maintaining a regular work schedule. Plaintiff admits he can do tasks for a couple hours at a time, but these daily activities do not automatically transfer to his ability to work a regular 8-hour day, seven days a week. Indeed, these daily activities tend to be consistent with chronic mental disability. See Pates-Fires, 564 F.3d at 947 (citing Hutsell v. Massanari, 259 F.3d 707, 713 (8th Cir. 2009)).
The Commissioner also pointed out that Plaintiff has a general credibility problem because he failed to disclose his substance usage to some doctors. (Opp'n at 6.) The Social Security Administration cautions that “[a]djudicators must not presume that all claimants with [drug abuse and alcoholism] are inherently less credible than other claimants.” SSR 13-2p, 78 Fed.Reg. 11945 (Feb. 20, 2013). The ALJ must make a credibility determination with findings that are “sufficiently specific.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). Although the ALJ generally mentioned that Plaintiff failed to report his substance use to his doctor, the ALJ did not articulate that as a reason for discrediting Plaintiff's subjective symptom testimony. Accordingly, this issue is not properly before the Court. Garrison, 759 F.3d at 1010 (holding that the court can only assess the reasoning provided by the ALJ in his decision).
6. Conclusion
Although a failure to obtain or cooperate with prescribed treatment can undermine a claimant's credibility when considering his subjective symptom testimony, an ALJ must explore the claimant's reasons for the failure before drawing a negative inference. The ALJ erred by improperly relying on Plaintiff's failure to comply with prescribed psychiatric treatment because he did not seriously consider whether justifiable cause existed. This error was not harmless. Although the Court will defer to the ALJ's interpretation of the record, the ALJ's interpretations were not clear when comparing Plaintiff's medical record and daily activities with his subjective symptom testimony. The Court is unable to conduct a meaningful review here without the ALJ providing specific, clear, and convincing reasons for rejecting Plaintiff's subjective symptom testimony. On remand, the ALJ should reevaluate Plaintiff's symptom testimony and specifically identify the testimony that is not credible and how it fails to comport with the rest of the record.
B. Whether the ALJ Failed to Include All Work Restrictions Assessed by Ernest Bagner, M.D. in Formulating Plaintiff's RFC
1. Summary of the parties' arguments
Plaintiff argues that the ALJ failed to include all of his impairments in determining his residual functional capacity, and thus, the ALJ asked an incomplete hypothetical question to the vocational expert. On December 8, 2020, Plaintiff attended a psychiatric evaluation with Ernest Bagner, M.D. (Mot. at 5.) Dr. Bagner opined that Plaintiff had mild limitations in his ability to perform simple instructions; he was moderately limited in his ability to perform detailed instructions; he was moderately limited in his ability to interact with the public, co-workers, and supervisors; and he was moderately limited in his ability to respond to work pressure in a usual work setting. (Id.)
Plaintiff contends that the ALJ found that Dr. Bagner's opinion was persuasive, but he failed to fully incorporate Dr. Bagner's opinion into Plaintiff's residual functional capacity assessment. (Id.) The ALJ found that Plaintiff was limited to simple, routine, and repetitive tasks, with no public interaction and occasional interaction with coworkers and supervisors. (Id. at 7.) However, Plaintiff argues that the RFC did not address Plaintiff's moderate limitations in responding to work pressure in a usual work setting. (Id.) Similarly, the hypothetical posed to the vocational expert did not include work restrictions accounting for the same. (Id.) According to Plaintiff, there is no vocational evidence that Plaintiff could work as a laundry worker, cleaner polisher, and marker. (Id.) Plaintiff's need for a work environment with limited social interaction was distinct from his need for limited work pressure. (Id.) Thus, Plaintiff requests that this case be remanded for reevaluation of the medical opinion evidence. (Id. at 9.)
In response, the Commissioner argues that the ALJ properly assessed and accounted for the opinion of Dr. Bagner in accordance with the applicable regulations. (Opp'n at 8, 10.) According to the regulations, when evaluating claims filed on or after March 27, 2017, the agency no longer “weighs” any opinion evidence, and all opinions start on equal footing, regardless of the claimant's relationship with the source. (Id. at 8.) The ALJ found Dr. Bagner's opinion to be “generally persuasive.” (Id. at 9.) According to the Commissioner, Plaintiff offers no support for his claim that the ALJ's RFC did not sufficiently address Dr. Bagner's finding of moderate limitations in responding to work pressure in a usual work setting. (Id.) Regardless, an ALJ's analysis need not be extensive, provided substantial evidence supports an ALJ's conclusions. (Id.) Because Plaintiff's disagreement with the ALJ's conclusions regarding medical opinions does not constitute reversible error, the Commissioner requests that this Court affirm. (Id.)
2. Applicable law
The residual functional capacity assessment is first used during step four of the sequential evaluation process to determine whether a claimant can perform relevant past work. See 20 C.F.R. § 416.920(e); see also Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017). If the claimant cannot perform relevant past work, the RFC assessment is used again during step five-along with the claimant's age, education, and work experience-to determine whether the claimant “can make an adjustment to other work.” Laborin, 867 F.3d at 1153. The ALJ is responsible for assessing the claimant's residual functional capacity. See 20 C.F.R. §§ 404.1546(c), 416.946(c). If there are conflicting medical opinions as to the claimant's residual functional capacity, the ALJ may choose which opinion to credit and which to reject. Id. The parties agree that, for claims filed on or after March 27, 2017, “'[t]he most important factors' that the agency considers when evaluating the persuasiveness of medical opinions are ‘supportability' and ‘consistency.'” Woods, 32 F.4th at 791 (quoting 20 C.F.R. § 404.1520c(a)).
The supportability and consistency factors need not be addressed by this Court since there is no dispute that the ALJ found Dr. Bagner's opinion that Plaintiff is moderately limited in his ability to respond to work pressure in a usual work setting to be “generally persuasive.” (AR 25.)
The Ninth Circuit holds that when a claimant suffers from nonexertional impairments, such as psychiatric impairments, an ALJ is required to use a vocational expert to establish whether the claimant is disabled. See, e.g., Tackett v. Apfel, 180 F.3d 1094, 1102 (9th Cir. 1999.) A hypothetical question posed to a vocational expert “must set out all the limitations and restrictions of the particular claimant.” Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir.1988). “Substantial evidence does not support a finding of disability where the [vocational expert]'s testimony either is contradictory or responds to an inaccurate hypothetical.” Hamilton v. Comm'r of Soc. Sec. Admin., 464 Fed.Appx. 681, 682 (9th Cir. 2012).
3. Analysis
Plaintiff asserts that the ALJ did not account for Dr. Bagner's findings regarding his work pressure limitations in the RFC assessment, and the ALJ's error rendered the hypothetical posed to the vocational expert legally deficient.
a. The ALJ failed to include all of Plaintiff's credible limitations
Dr. Bagner opined that Plaintiff was moderately limited in his ability to respond to work pressure in a usual work setting. (Mot. at 5.) Notably, a “moderate” limitation “is not the same as no impairment at all” and thus cannot be ignored in the ALJ's RFC assessment. Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007).
The Ninth Circuit's opinion in Bagby v. Comm'r of Soc. Sec., is persuasive. In Bagby, despite fully crediting the doctor's opinion, the ALJ failed to incorporate the doctor's finding that the claimant was moderately limited in her ability to “[r]espond appropriately to usual work situations and to changes in a routine work setting” in the ALJ's RFC assessment. 606 Fed.Appx. 888, 890 (9th Cir. 2015). The ALJ's RFC limited the claimant to “‘simple, repetitive tasks,' no contact with the public, and ‘occasional interaction with coworkers.'” Id. The ALJ's RFC did not reflect the doctor's finding that the claimant was limited in her ability to “[r]espond appropriately to usual work situations and to changes in a routine work setting.” Id. The ALJ's RFC need not quote every finding, so long as it generally captures the limitations in the medical opinion. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). However, the Ninth Circuit emphasized that the ability to respond to work pressure is distinct from the ability to interact with others, to understand, remember, and follow “complex instructions,” and to “make judgments on complex work-related decisions.” Bagby, 606 Fed.Appx. at 890 (quoting 20 C.F.R. § 416.921(b)). Because the ALJ's RFC failed to include all of the claimant's limitations, the ALJ posed an incomplete hypothetical to the vocational expert. Id. On remand, the ALJ was ordered to incorporate all of the claimant's credible limitations into the RFC assessment. Id.
Here, as in Bagby, the ALJ's RFC limited Plaintiff to “simple, routine, repetitive tasks with no work-related interaction with the general public but occasional interaction with co-workers and supervisors.” (AR 23.) The ALJ's RFC did not reflect Dr. Bagner's finding that Plaintiff was moderately limited in his ability to respond to work pressure in a usual work setting. (See AR 20.) The limitations identified in the RFC assessment in the instant case are nearly identical to those in Bagby, and similarly, because both ALJs failed to adequately assess all such limitations, the ALJ's RFC assessment was deficient here. See Bagby, 606 Fed.Appx. at 890.
Instead of distinguishing Bagby, the Commissioner generally argues that Dr. Bagner's assessment was appropriately accounted for in the ALJ's RFC and hypothetical question to the vocational expert. (Opp'n at 9.) Although the reviewing court will uphold the ALJ's conclusions if substantial evidence supports them, an ALJ's findings are not supported by substantial evidence if they fail to incorporate an uncontradicted medical opinion into the determination of a claimant's residual functional capacity. See Mellow v. Saul, 830 Fed.Appx. 882, 883 (9th Cir. 2020). Here, no evidence in the record contradicts Dr. Bagner's opinion that Plaintiff was moderately limited in his ability to respond to work pressure in a usual work setting (see AR 22), and thus, the ALI could not simply ignore or reject the opinion. The question remains whether the ALJ's error tainted the testimony of the vocational expert.
b. The ALJ's error rendered the vocational expert's testimony deficient
If the hypothetical posed to a vocational expert does not reflect all of the claimant's limitations, then the vocational expert's testimony “has no evidentiary value to support a finding that the claimant can perform jobs in the national economy.” Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012). However, the fact that an ALJ erred in not including all of the claimant's limitations in a hypothetical is irrelevant where there is the other reliable evidence. Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (claimant's own testimony and other medical evidence discredited his limitations). Here, as mentioned above, the ALI's error was not harmless because Dr. Bagner's finding that Plaintiff was moderately limited in his ability to respond to work pressure in a usual work setting is a distinguishable limitation, and no reliable evidence in the record discredits it.
Ultimately, the ALI asked the vocational expert, Thomas Linville, a hypothetical at step five that was based on an incomplete set of assumptions. (See AR 60-62.) At the hearing on August 18, 2022, the ALI posed the following hypothetical to the vocational expert:
So, I'm going to ask that you assume a hypothetical individual to claimant's same age, education, and work experience. And for Hypothetical 1, assume that he's capable of doing only light work. He cannot climb ladders, ropes, or scaffolds. And can only occasionally perform all other postural activities. He must avoid concentrated exposure to extreme cold and vibrations, and hazards such as dangerous moving machinery and unprotected heights. And further, he can only understand, remember, and carry out simple routine and repetitive tasks with no work-related interaction with the general public, but he can have occasional interaction with coworkers and supervisors . . . Would there be light jobs that would fit there?(AR 61.) The vocational expert responded to the ALJ's hypothetical, “Yes, Your Honor. There would.” (Id.) Dr. Bagner's opinion that Plaintiff was moderately limited in his ability to respond to work pressure in a usual work setting was entirely omitted from the ALJ's hypothetical. (See AR 60-62.) This omission rendered the question posed, and the vocational expert's response, legally deficient. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006). If the omitted opinion of Dr. Bagner had been incorporated into the ALJ's RFC assessment, a proper hypothetical would have included all of Plaintiff's limitations which, in turn, could have altered the vocational expert's recommendation to the ALJ.
4. Conclusion
The ALJ failed to include all of Plaintiff's impairments in determining Plaintiff's residual functional capacity, and therefore, the ALJ asked an incomplete hypothetical question to the vocational expert. Because the hypothetical did not “properly set forth all of [Plaintiff's] impairments, the vocational expert's testimony cannot constitute substantial evidence to support the ALJ's findings.” Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984).
VI. CONCLUSION
For the foregoing reasons, the Court RECOMMENDS that judgment be entered REVERSING the decision of the Commissioner and REMANDING this matter for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
IT IS ORDERED that no later than August 8, 2024, any party to this action may file written objections with the Court and serve a copy on all parties.The document should be captioned, “Objections to Report and Recommendation.”
Although Federal Rule of Civil Procedure 72 allows the parties 14 days to file written objections to the Magistrate Judge's proposed findings and recommendations, “[t]he court may require a response within a shorter period if exigencies of the calendar require.” United States v. Barney, 568 F.2d 134, 136 (9th Cir. 1978). The Court thereby shortens the timeframe to allow the District Judge sufficient time to evaluate any objections that may be filed. See Sabal Trail Transmission, LLC. v. 7.72 Acres in Lee Cnty., Alabama, No. 3:16-CV-173-WKW, 2016 WL 10789585, at *1 (M.D. Ala. June 6, 2016) (listing cases).
IT IS FURTHER ORDRED that any response to the objections shall be filed with the Court and served on all parties no later than August 15, 2024 . The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. See Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).
IT IS SO ORDERED.