Opinion
CV-22-01784-PHX-DWL (ASB)
10-24-2023
Lena Shayeb, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable Alison S. Bachus, United States Magistrate Judge
TO THE HONORABLE DOMINIC W. LANZA, UNITED STATES DISTRICT JUDGE:
Plaintiff Lena Shayeb seeks judicial review and reversal of the final decision of the Commissioner of the Social Security Administration denying Plaintiff's application for Social Security Disability Insurance.
I. BACKGROUND
On May 3, 2019, Plaintiff filed an application for Social Security Disability Insurance (“SSDI”) benefits under Title II of the Social Security Act. (AR 101.) Plaintiff alleged that she became disabled on August 5, 2018, and that she remains disabled. (Id.) Plaintiff's application was denied by the Social Security Administration (“SSA”) on September 18, 2019. (Id.) Following Plaintiff's request for reconsideration (AR 128), the SSA affirmed the denial of the application on January 6, 2020 (AR 101). Pursuant to Plaintiff's request (AR 138-39), a hearing was held on June 3, 2021, before Administrative Law Judge (“ALJ”) Frederick Andreas (AR 26-68). In a decision dated July 12, 2021, the ALJ ruled that Plaintiff was not entitled to SSDI because she was not disabled within the meaning of the Social Security Act from August 5, 2018, through the date of the decision. (AR 113.) That decision became final on August 19, 2022, when the Appeals Council denied Plaintiff's request for review. (AR 1-4.)
Administrative Record.
Having exhausted the administrative review process, Plaintiff sought judicial review of the Commissioner's decision by filing a Complaint (Doc. 1) in this Court pursuant to 42 U.S.C. § 405(g). The Court has subject matter jurisdiction pursuant to that statute. On April 17, 2023, Plaintiff filed an Opening Brief (Doc. 21), seeking remand for calculation of benefits. On July 10, 2023, Defendant filed an Answering Brief (Doc. 26), and on July 24, 2023, Plaintiff filed a Reply Brief (Doc. 27).
II. STANDARD OF REVIEW
This Court reviews only those issues raised by the party challenging the ALJ's decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). In reviewing the decision of the ALJ, the Court will not overturn the ALJ's decision “unless it is either not supported by substantial evidence or is based upon legal error.” Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018). “Substantial” evidence means “more than a mere scintilla, ” but it is “less than a preponderance.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (internal citation omitted). That is, “substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (internal citation omitted). In determining whether substantial evidence supports the ALJ's decision, the Court considers “the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the” ALJ's conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). “If the evidence can reasonably support either affirming or reversing the Secretary's conclusion, the court may not substitute its judgment for that of the Secretary.” Id. at 720-21. The “court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Orn, 495 F.3d at 630 (internal quotations and citations omitted). The Court reviews “only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.” Id.
III. ANALYSIS
To be eligible for Social Security disability benefits, a claimant must show an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(a); see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). A five-step procedure is used to determine whether a claimant is “disabled” and thus eligible for SSA benefits:
In step one, the Secretary determines whether a claimant is currently engaged in substantial gainful activity. If so, the claimant is not disabled. In step two, the Secretary determines whether the claimant has a “medically severe impairment or combination of impairments, ” as defined in 20 C.F.R. § 404.1520(c). If the answer is no, the claimant is not disabled. If the answer is yes, the Secretary proceeds to step three and determines whether the impairment meets or equals a “listed” impairment that the Secretary has acknowledged to be so severe as to preclude substantial gainful activity. If this requirement is met, the claimant is conclusively presumed disabled; if not, the Secretary proceeds to step four. At step four, the Secretary determines whether the claimant can perform “past relevant work.” If the claimant can perform such work, she is not disabled. If the claimant meets the burden of establishing an inability to perform prior work, the Secretary must show, at step five, that the claimant can perform other substantial gainful work that exists in the national economy.Reddick, 157 F.3d at 721 (citing 20 C.F.R. § 404.1520). “The recent changes to the Social Security regulations did not affect the familiar ‘five-step sequential evaluation process.'” Woods v. Kijakazi, 32 F.4th 785, 787 n.1 (9th Cir. 2022) (citing 20 C.F.R. § 404.1520(a)(1)).
Different regulations apply, depending on whether a claim was filed before, on, or after March 27, 2017. 20 C.F.R. § 404.1520. In the case at bar, Plaintiff's claim was filed in 2019. Thus, the newer regulations apply.
On July 12, 2021, the ALJ ruled that Plaintiff was not under a disability as defined in the Social Security Act, and therefore not entitled to SSDI. (AR 101-13.) In his decision, the ALJ first found that Plaintiff had not engaged in substantial gainful activity since August 5, 2018, the date of her application. (AR 104.) The ALJ next determined that Plaintiff had the following “severe” impairments within the meaning of the regulations: anxiety, depression, post-traumatic stress disorder (“PTSD”), diabetes mellitus type II, chronic kidney disease stage 2, left knee osteoarthritis, polyneuropathy, and sciatica. (Id.) The ALJ further found Plaintiff had been treated for other, “non-severe” impairments: prolapsed bladder status post hysterectomy, hyperlipidemia, hypertension, obesity, pulmonary embolism, restless leg syndrome, and gastroesophageal reflux disease. (Id.) The ALJ concluded that the “severe” impairments, whether considered singly or in combination, did not meet or medically equal a listed impairment under 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526). (AR 104.)
Next, the ALJ considered Plaintiff's residual functional capacity (“RFC”). (AR 106.) The ALJ determined that Plaintiff had the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b), except that she may occasionally climb ramps and stairs; but may never climb ladders, ropes, and scaffolds; may frequently handle, finger, or feel; may occasionally stoop, kneel, crouch, or crawl; but may not operate dangerous machinery or work at unprotected heights, and may not perform commercial driving. (AR 106.) The ALJ found that Plaintiff's RFC precluded her from performing her past relevant work as an interpreter and housekeeper. (AR 112.) The ALJ concluded that Plaintiff was 47 years old with a high school education, and that transferability of job skills was not material to the disability determination because Plaintiff was not “disabled” when the Medical-Vocational Rules were employed as a framework. (Id.) Finally, the ALJ determined that “there are jobs that exist in significant numbers in the national economy” that Plaintiff could perform, after Plaintiff's age, education, work experience, and RFC were considered. (Id.) The vocational expert testified that the jobs included a “bottling line attendant, ” a “bagger, garment, ” or a “vacuum bottle assembler.” (AR 61-62.) The ALJ therefore concluded that Plaintiff had not been under a disability from August 5, 2018, through the date of the decision, under 20 C.F.R. § 404.1520(g). (AR 113.)
A claimant's residual functional capacity assessment is a determination of what the claimant can still do despite his or her limitations. See 20 C.F.R. § 404.1545(a). In determining a claimant's residual functional capacity, an ALJ must assess all the evidence to determine what capacity the claimant has for work despite his or her impairments, including medical records, and the claimant's and others' descriptions of limitation. See Id . The ALJ considers a claimant's ability to meet physical and mental demands, sensory requirements, and other functions. See 20 C.F.R. § 404.1545(b-d). In evaluating whether a claimant satisfies the disability criteria, the Commissioner must evaluate the claimant's “ability to work on a sustained basis.” 20 C.F.R. § 404.1512(a).
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities.” 20 C.F.R. § 404.1567(b).
Plaintiff argues that the ALJ erred as a matter of law and that the decision should be reversed and remanded for calculation of benefits. Plaintiff asserts three errors by the ALJ:
1. The ALJ committed materially harmful error by rejecting the assessments from examining psychologist, Rosalia Pereyra, Psy.D., and treating nurse practitioner, Carolynn Eastin, F.N.P. B.C., without providing sufficient explanation that included a rational interpretation of the record supported by substantial evidence, including failing to explain the consideration of the supportability and consistency factors under the agency's regulations for evaluation of medical source opinions.
2. The ALJ committed materially harmful error by rejecting Plaintiff's symptom testimony in the absence of specific, clear, and convincing reasons supported by substantial evidence in the record as a whole.
3. The ALJ committed materially harmful error by concluding Plaintiff's cervical and lumbar spine impairments were not medically determinable or severe impairments, when Plaintiff's related symptoms would cause more than a minimal effect on her ability to work.(Doc. 21.) In response, Defendant disputes each of Plaintiff's arguments and contends that Plaintiff failed to show how the ALJ made harmful legal error. (Doc. 26.)
A. Medical Source Opinion Evidence
Plaintiff first argues that the ALJ erred as a matter of law when rejecting the opinions of examining psychologist, Rosalia Pereyra, Psy.D., and treating nurse practitioner, Carolynn Eastin, F.N.P. B.C. (“NP Eastin”), in their assessments of Plaintiff's residual functioning capacity. (Doc. 21 at 10.)
As a psychologist and nurse practitioner, respectively, Dr. Pereyra and NP Eastin are each considered an “acceptable medical source” under the pertinent federal regulations. 20 C.F.R. § 404.1502. The following factors are considered by an ALJ when reviewing such a medical opinion, with the first and second factors being the most important: (1) supportability, (2) consistency, (3) relationship with the claimant (including length, purpose, and extent of the treatment relationship, as well as frequency of examinations), (4) specialization of the medical source, and (5) other factors such as the medical source's familiarity with other evidence in the claim. 20 C.F.R. § 404.1520c.
“Supportability means the extent to which a medical source supports the medical opinion by explaining the ‘relevant ... objective medical evidence.'” Woods, 32 F.4th at 791-92 (quoting 20 C.F.R. § 404.1520c(c)(1)). “Consistency means the extent to which a medical opinion is ‘consistent ... with the evidence from other medical sources and nonmedical sources in the claim.'” Id. at 792 (quoting 20 C.F.R. § 404.1520c(c)(2)). Further, as the Ninth Circuit has recently acknowledged, the relationship between the medical source and the claimant “is still relevant when assessing the persuasiveness of the source's opinion” under the new regulatory paradigm. Woods, 32 F.4th at 792. Although the ALJ is not required to make specific findings regarding the relationship factors under 20 C.F.R. § 404.1520c(c)(3)(i)-(v), a discussion “may be appropriate when ‘two or more medical opinions . about the same issue . are equally well-supported . and consistent with the record ... but are not exactly the same.'” Id. (quoting 20 C.F.R. § 404.1520c(b)(3)).
“[U]nder the new regulations, an ALJ cannot reject an examining or treating doctor's opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence.” Woods, 32 F.4th at 792. The ALJ is further required to “articulate . how persuasive” he or she finds “all of the medical opinions” from each medical source, but the ALJ need not address each individual opinion of a source. 20 C.F.R. § 404.1520c(b). The ALJ must explain how he or she “considered the supportability and consistency factors for a medical source's medical opinions or prior administrative medical findings.” 20 C.F.R. § 404.1520c(b)(2).
Here, the ALJ found Dr. Pereyra's opinion was “not persuasive.” (AR 110.) Specifically, the ALJ concluded Dr. Pereyra's opinion was “not consistent with the medical evidence” because “Dr. Pereyra indicated no medical records were received, so she had not reviewed any medical records” and she saw “the claimant twice for testing and does not have a long-term treating relationship with the claimant.” (AR 110-11.) Further, the ALJ found the opinion of NP Eastin was also “not persuasive.” (AR 111.) The ALJ stated the opinion was not persuasive because, “[a]lthough the [assessment] form asks [for] a description of the data relied upon, no description is given” and “[n]one of the findings from the imaging or exam findings is cited to support the extreme limits.” (Id.)
The Court first considers Dr. Pereyra's treatment records of Plaintiff; the Court could locate within the record two occasions on which Dr. Pereyra treated Plaintiff. (AR 571-87.) On June 26, 2019, and July 25, 2019, Dr. Pereyra conducted a neuropsychological evaluation and functional assessment of Plaintiff; one report was generated from both visits on August 6, 2019. (AR 576-87.) Upon examination, Dr. Pereyra found the following from Plaintiff's neuropsychological evaluation: (1) Plaintiff's score on the Standardized MiniMental Status Exam (“MMSE”) indicated Plaintiff's orientation, immediate recall, language skills, and ability to follow simple verbal and written commands were significantly impaired; (2) Plaintiff showed signs of having some visuospatial problems and deficiencies in her cognition; (3) Plaintiff's auditory attention was moderately impaired; (4) the Beck Anxiety Scale results indicated Plaintiff has severe anxiety; (5) the Beck Depression Inventory - II indicated Plaintiff has severe depression; (6) Plaintiff's raw score on the DSM-5 Level 2-Somatic Symptom-Adult scale indicated Plaintiff has moderate levels of somatic symptom severity; (7) the Harvard Trauma Questionnaire (“HTQ”) indicated Plaintiff was symptomatic for PTSD; (8) the Hopkins Symptoms Checklist (“HSCL”) indicated Plaintiff was symptomatic for anxiety and depression; and (9) based on the DSM-5 diagnosis, Plaintiff met the criteria for Post Traumatic Stress Disorder, Major Depressive Disorder, and Mild Cognitive Impairment. (AR 581-86.)
Next, Dr. Pereyra found the following based on Plaintiff's functional assessment: (1) Plaintiff is moderately to severely impaired in her ability to remember basic workplace locations and procedures; (2) Plaintiff is mildly impaired in her ability to remember and understand simple (one- to two-step) instructions; (3) Plaintiff is able to carry out very simple (one- to two-step) instructions but is unable to follow simple work-like procedures and make simple work-related decisions, and requires help from others; (4) Plaintiff has moderate to severe attention and concentration difficulties and would not be able to complete a regular workday or workweek; (5) Plaintiff is not capable of sustaining an ordinary routine without special supervision; (6) Plaintiff has moderate limitations with social interaction and cannot leave the house without the help of others; (7) Plaintiff does not have sufficient energy to socialize with others; and (8) Plaintiff has moderate ability to respond to basic work setting changes and has moderate difficulties organizing herself and setting goals independently. (AR 586-87.) Based on the evaluation and assessment, Dr. Pereyra concluded Plaintiff “is unable to perform any kind of substantial work activity due to her mental impairments” and the impairments are expected to last more than twelve months. (AR 587.)
In November 2019, Dr. Pereyra completed a medical assessment of Plaintiff's ability to perform work related activities (mental) form. (AR 574-75.) Dr. Pereyra's assessment indicated Plaintiff's impairments preclude an eight-hour workday, however, Dr. Pereyra stated she did not receive any other medical records for Plaintiff. (AR 574-75.)
Next, the Court considers NP Eastin's treatment records of Plaintiff. The Court located fourteen instances of treatment by NP Eastin between March 17, 2020, and March 29, 2021. (AR 813-36.) On April 12, 2021, NP Eastin completed a “Medical Assessment of Ability to do Work-Related Physical Activities” form for Plaintiff. (AR 851-52.) NP Eastin opined that Plaintiff has impairments that preclude an eight-hour workday due to Plaintiff's cervical and lumbar spondylosis injury from being hit by a car and Plaintiff's polyneuropathy. (AR 851.) The form further indicated NP Eastin had provided supervised treatment to Plaintiff and noted that Plaintiff is a chronic pain patient who suffers from a spine disorder and cannot stand for fifteen minutes, or bend and sit for long. (AR 852.) NP Eastin opined, based on her review of the record and treatment of Plaintiff, the restrictions were in existence as of August 5, 2018. (Id.) NP Eastin stated she had reviewed diagnostic x-rays, an MRI, and Plaintiff's physical exam. (Id.)
In the April 2021 Physical Assessment form, NP Eastin opined that Plaintiff's symptoms associated with her impairments were severe enough to interfere with her ability to work. (AR 851.) She found Plaintiff would need to alternate between sitting, standing, and walking every 21-45 minutes and would need to rest for 10-15 minutes with position changes. (Id.) NP Eastin further opined that Plaintiff could lift less than fifteen pounds, carry less than ten pounds, could “less than occasionally” bend and stoop, and could occasionally reach. (Id.) NP Eastin reported Plaintiff's limitations would inhibit her from completing more than one- and two-step job duties over an eight-hour workday and that Plaintiff would likely miss two to three days of work a month due to her medical condition. (AR 852.)
The Court will address the ALJ's assessment of each medical provider in turn.
a. Dr. Pereyra
Plaintiff first argues that the ALJ improperly rejected Dr. Pereyra's assessments by failing to provide a rational explanation supported by substantial evidence as to why the assessments were unpersuasive. (Doc. 21 at 11-12.) Plaintiff takes issue with two main statements the ALJ provided as reasoning for his determination that Dr. Pereyra's assessment was not persuasive. First, the ALJ rejected Dr. Pereyra's evaluation completed in August 2019 as it was “not persuasive because it is not consistent with the medical evidence of record or the consultative psychological examination.” (AR 110.) Plaintiff argues this finding “gives a reviewing court no path to discern the ALJ's reasoning as the ALJ did not specify what in the record or in the state agency consultative psychological examination the ALJ thought was inconsistent.” (Doc. 21 at 12.) Further, Plaintiff argues without more, the ALJ's reason to reject Dr. Pereyra's assessment is unreviewable. (Id.) The Court agrees.
The ALJ offered no explanation as to why he found Dr. Pereyra's opinions inconsistent with or unsupported by the rest of the medical record. First, the ALJ failed to address the supportability of Dr. Pereyra's opinion by failing to explain, cite to the record, or provide any other substantial evidence when discounting the opinion. See 20 C.F.R. § 404.1520c(b)(2). Second, the ALJ failed to specify with which consultative psychological examination, or what part of a consultative psychological examination, Dr. Pereyra's assessment was not consistent. Without any such citations, and without any meaningful explanation of the ALJ's reasoning, “there is simply no way for the Court to assess the legitimacy of the ALJ's conclusions.” Oropilla v. Comm'r of Soc. Sec. Admin., No. CV-20-01528-PHX-MTL, 2022 WL 885009, at *3 (D. Ariz. Mar. 25, 2022).
The Court recognizes that earlier in his decision, the ALJ discussed Dr. Pereyra's neuropsychological evaluation and functional assessment of Plaintiff on June 26, 2019, and July 25, 2019. (AR 108.) The ALJ stated Dr. Pereyra's report indicated that Plaintiff's thought processes were linear, logical, and goal oriented, but Plaintiff was unable to recall dates and remember her medications. (Id.) The ALJ further stated Dr. Pereyra reported Plaintiff had the capacity to stay focused and complete each task but obtained a 19/30 on the mini mental status examination, which indicated her orientation, immediate recall, language skills, and ability to follow simple commands were significantly impaired. (AR 108-09.) The ALJ found, after comparing Plaintiff's MMSE scores obtained by Dr. Webster, who evaluated Plaintiff at the request of the state agency, Plaintiff scored a 29/30 in December 2019 with Dr. Webster and a 19/30 in the summer of 2019 with Dr. Pereyra. (Id.) The ALJ noted Plaintiff's scores “varied widely.” (Id.)
To the extent the ALJ was citing this finding when stating Dr. Pereyra's opinion was not persuasive because it was not consistent with the “consultative psychological examination, ” it fails to satisfy the standard under the 2017 regulations. See 20 C.F.R. § 404.1520c(b). It is the ALJ's responsibility to identify the records upon which he relies for his findings. See Bray v. Comm r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (“Long-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and factual findings offered by the ALJ-not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.”); Sec. & Exch. Comm'n v. Chenery Corp., 332 U.S. 194, 196 (1947) (“[I]n dealing with a determination or judgment which an administrative agency alone is authorized to make, [courts] must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be more adequate or proper basis.”).
Here, although the ALJ summarized Plaintiff's medical records, the ALJ failed to analyze, through citation to the record or sufficient explanation, the supportability and consistency factors of Dr. Pereyra's August 2019 report. As such, the ALJ did not provide substantial evidence to reject Dr. Pereyra's opinion.
Next, the ALJ rejected Dr. Pereyra's November 2019 separate assessment “checklist form.” (AR 110.) The ALJ stated it was “not persuasive because it is not consistent with the medical evidence, ” and “Dr. Pereyra indicated no medical records were received, so she had not reviewed any medical records. She saws (sic) the claimant twice for testing and does not have a long-term treating relationship with the claimant.” (AR 110-11.) First, Plaintiff argues the ALJ erred as he again provided no reference for or citation to evidence within the treatment records that the ALJ found to be inconsistent with Dr. Pereyra's assessment. (Doc. 21 at 13.) Second, Plaintiff argues that the ALJ's charge that Dr. Pereyra did not review medical evidence before completing the form “does not contemplate that Dr. Pereyra had just performed an extensive record review and evaluation of Shayeb less than three months prior to the completion of the assessment: in the August 2019 evaluation, Dr. Pereyra stated she spent two hours reviewing Shayeb's background medical records.” (Id.) Third, Plaintiff contends the ALJ's use of a lack of treating relationship to reject Plaintiff's examining psychologist's assessments is inapposite to the recent holding in Woods. 32 F.4th at 785.
The Court must determine whether in rejecting Dr. Pereyra's opinion, the ALJ provided an explanation supported by substantial evidence. See Woods, 32 F.4th at 792. In providing this explanation, the ALJ must articulate how he considered the supportability of that medical opinion and its consistency with other evidence in the record. Id. at 792 (citing 20 C.F.R. § 404.1520c(b)(2)). Although the ALJ did not make clear whether he found Dr. Pereyra's report to be supported by her own treatment notes, the ALJ addressed supportability when stating Dr. Pereyra's November 2019 form was “not persuasive” because Dr. Pereyra did not review any medical records. (AR 110-11.) The ALJ found Dr. Pereyra stated on the assessment form “no medical records were received, ” which the ALJ appeared to use in concluding Dr. Pereyra's opinions were not sufficiently supported by medical evidence. (Id.) However, the ALJ failed to consider that Dr. Pereyra indicated on the August 2019 form that she spent two hours reviewing Plaintiff's medical records. (See AR 576 (stating “2.5-hour testing; 1.5-hours interview, 2-hour document review and preparation”).) Even assuming the ALJ adequately considered the supportability of Dr. Pereyra's opinion, he failed to adequately articulate how he considered the consistency of her opinion with the other evidence in the record. Stating the “opinion is not persuasive because it is not consistent with the medical evidence” fails to provide an explanation supported by substantial evidence for this Court, or Plaintiff, to review.
Further, the ALJ's seeming reliance on Dr. Pereyra's lack of a “long-term treating relationship” in discrediting her opinion is concerning. See Woods, 32 F.4th at 787. One of the factors an ALJ may consider when reviewing a medical opinion is the provider's relationship with the claimant (including length, purpose, and extent of the treatment relationship, as well as frequency of examinations). See 20 C.F.R. § 404.1520c(c)(3)(i)-(v). However, in Woods, the Ninth Circuit clarified that the practice of assigning presumptive weight based on the extent of the doctor's relationship with the claimant no longer applied. 32 F.4th at 787. The ALJ's decision fails to make clear to what extent the lack of a long-term treating relationship carried any weight. At best, it is a nod to the framework under 20 C.F.R. § 404.1520c(c)(3)(i)-(v). At worst, it is an improper application of an outdated hierarchical scheme recognized by Woods. The lack of analysis notwithstanding, the Court does not find the ALJ's reasoning for discrediting Dr. Pereyra at all supported by the record.
Specifically, Dr. Pereyra saw Plaintiff twice, once in June 2019 and once in July 2019, and reviewed Plaintiff's medical records for “two hours” prior to generating her report. (AR 576.) Dr. Pereyra used such knowledge to complete the November 2019 assessment form, which the ALJ also found unpersuasive. In discrediting Dr. Pereyra's opinion, the ALJ stated the opinion was inconsistent with the findings of Dr. Webster, the consultative psychological examiner. (AR 110.) However, Dr. Webster only saw Plaintiff one time, on December 20, 2019, before diagnosing Plaintiff and generating his report. (AR 588-94.) The ALJ fails to explain how Dr. Pereyra's opinion, which was formed by seeing Plaintiff twice, was unpersuasive due to her lack of a “long-term treating relationship” with Plaintiff, yet Dr. Webster's opinion was persuasive despite only examining Plaintiff on one occasion.
The Court concludes the ALJ did not provide a satisfactory explanation supported by substantial evidence to reject Dr. Pereyra's opinion on the November 2019 report.
b. Nurse Practitioner Eastin
Next, Plaintiff argues the ALJ improperly rejected NP Eastin's assessments by failing to provide sufficient reasoning. (Doc. 21 at 15.) Specifically, Plaintiff argues the ALJ “did not provide a rational and reasonable explanation, or articulate and explain with a basis in substantial evidence, the ALJ's evaluation of the supportability and consistency factors for NP Eastin's assessments.” (Id. at 16.) In rejecting NP Eastin's opinions, the ALJ stated “[t]hese opinions are not persuasive. Although the form asks to [give] a description of the data relied upon, no description is given. None of the findings from the imaging or exam findings is cited to support the extreme limits.” (AR 111.) However, an ALJ typically cannot reject a treating physician's opinion on the basis that it does not contain explanations. Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). Here, there is no indication that NP Eastin's opinions were largely based on Plaintiff's self-reports. To the contrary, NP Eastin saw Plaintiff on a monthly basis for one year, stated on both assessment forms that she provided supervised treatment to Plaintiff, considered Plaintiff's treatment notes and records from other providers, and reviewed diagnostic x-rays, MRIs, and Plaintiff's physical exam. (AR 597, 852.) Further, even though the assessment forms contained “check-the-box” answers, NP Eastin's responses were accompanied by comments and explanations where appropriate. (See id.); see also Smolen, 80 F.3d at 1288.
As discussed, supra, the Court must determine whether in rejecting NP Eastin's opinions, the ALJ provided an explanation supported by substantial evidence. See Woods, 32 F.4th at 792. In providing this explanation, the ALJ must articulate how he considered the supportability of that medical opinion and its consistency with other evidence in the record. See id. (citing 20 C.F.R. § 404.1520c(b)(2)). The record shows NP Eastin first saw Plaintiff in March of 2020 and continued to see her monthly until March of2021. (AR 81336.) In summarizing NP Eastin's assessments of Plaintiff, the ALJ stated, “Nurse Eastin said diagnostic x-rays, MRI and physical exam supported the limitations (Exhibit 9F).” (AR 111.) NP Eastin completed a Medical Assessment of Ability to do Physical AbilityWork Related Activities Form on April 28, 2020 (AR 596-97), and a second assessment form on April 12, 2021 (AR 851-52). The ALJ stated both forms had the same limitations notated for Plaintiff. (AR 111.) The ALJ appeared to address supportability when stating that although NP Eastin said she relied upon x-rays, an MRI, and a physical examination, she did not cite to them specifically to support her findings, which made them unpersuasive. Further, the ALJ's finding that both assessments listed the same limitations tends to lend to a positive finding of supportability. However, even assuming this explanation is sufficient for evaluating supportability, the ALJ did not address the consistency of NP Eastin's assessments with the rest of the medical record. Thus, the ALJ improperly rejected NP Eastin's opinions, and in doing so, erred.
B. Plaintiff's Symptom Testimony
Plaintiff next argues that the ALJ committed materially harmful error when rejecting Plaintiff's symptom testimony by failing to provide specific, clear, and convincing reasons supported by substantial evidence in the record. (Doc. 21 at 18.)
a. Legal Standard
“When objective medical evidence is inconsistent with a claimant's subjective testimony, an ALJ can ‘reject the claimant's testimony about the severity of her symptoms only by offering specific, clear, and convincing reasons for doing so.'” Smartt v. Kijakazi, 53 F.4th 489, 494 (9th Cir. 2022) (quoting Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014)). “[A]n ALJ may not ‘reject a claimant's subjective complaints based solely on a lack of medical evidence to fully corroborate the alleged severity of pain.' This means that an ALJ cannot effectively render a claimant's subjective symptom testimony superfluous by demanding positive objective medical evidence ‘fully corroborating]' every allegation within the subjective testimony.” Id. at 495 (quoting Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)). “When a claimant presents objective medical evidence establishing an impairment ‘that could reasonably produce the symptoms of which she complains, an adverse credibility finding must be made on clear and convincing reasons.'” Id. at 497 (quoting Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008)). Clear and convincing reasons may be found by an ALJ by identifying inconsistencies in the objective medical evidence and in Plaintiff's conduct. See id. at 496-98.
b. Plaintiff's Testimony
At the ALJ hearing on June 3, 2021, Plaintiff testified to the following facts. (AR 35-59.) Plaintiff became disabled and unable to work in August of 2018. (AR 37.) At that time, Plaintiff was working as a housekeeper for two to three years and before that was an interpreter. (AR 38.) Plaintiff had to quit her housekeeping job in August of 2018 because she was getting “to get tired fast, ” started “taking a lot of breaks because of [her] pain, ” and “couldn't do it [anymore].” (AR 39.) Plaintiff's employer was not satisfied with her work because of the time it was taking her to complete the jobs, so she stopped working. (AR 40.) Plaintiff has not performed any other gainful work since August 2018 and has not done any volunteer work. (AR 40.) Plaintiff suffers from back, neck, and knee pain. (AR 41.) Plaintiff described the pain in her back as “sharp, ” the pain in her neck as “pinching, ” and the pain in her knee as “stabbing.” (AR 41.) Plaintiff's knee pain is constant, even when laying down, and described the pain in her back and neck as being present all the time, just not as severe. (AR 41-42.)
Plaintiff testified that lifting, walking, bending, and doing things around the house makes the pain worse, while sitting down for too long also causes pain. (AR 42.) To try and get relief, Plaintiff takes medication, lays down, and uses “a lot of ice bags.” (Id.) Plaintiff must lay down every day for at least two hours to relieve her pain. (AR 43.) Plaintiff has done injections, physical therapy, and medication for the pain, but reports none of them have provided long-lasting relief. (AR 43.) Plaintiff stated her doctor encouraged her to do immediate knee surgery as the doctor was worried the knee would break on its own if not treated “soon.” (AR 44.) Plaintiff has a walker and a cane but uses the cane any time she is walking because she “need[s] to count on something.” (Id.) Between her first bladder surgery in 2018 and the second surgery in March of2021, Plaintiff was doing better “for maybe a month.” (AR 45-46.) However, shortly after, her bladder relapsed and she was having difficulty going to the bathroom, causing her to have accidents as frequently as every day. (Id.)
Addressing her mental health, Plaintiff testified that in 2019 she went to Dr. Pereyra for a neuro-psychological evaluation due to problems with her memory. (AR 46.) Plaintiff became very forgetful, often forgetting to take her medications and missing doctor's appointments. (AR 47.) Plaintiff became reliant on her family to remind her of most important things. (Id.) Plaintiff testified she is depressed “all the time.” (Id.) Plaintiff's depression causes her to not want to leave the house, which has caused her to miss doctor's appointments. (AR 47-48.) Plaintiff has anxiety and reports having panic attacks every day. (AR 49.) Plaintiff stated her depression and panic attacks would preclude her from being able to work or would cause her to miss a lot of work. (AR 48, 50.) Plaintiff testified that if she had a panic attack at work, she would need an hour-long break and a place to lay down to try and recover. (AR 50.) Plaintiff lives in a home with her children and grandchildren, while one of her daughters primarily takes care of her. (AR 50-51.)
c. ALJ's Findings
In his decision, the ALJ discounted Plaintiff's symptom testimony, finding that “the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; 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[.]” (AR 107.) In doing so, the ALJ addressed the objective medical findings and Plaintiff's treatment history. Although Plaintiff had chronic pain, the ALJ found Plaintiff's medications were beneficial and helped keep her active. (AR 107.) The ALJ found Plaintiff suffered from cervical, lumbar, and right knee pain; complained of vein pain but had not yet followed up with a vascular specialist; and had crepitus of the right knee. (Id.) However, the ALJ also found Plaintiff showed a full range of motion on a musculoskeletal exam; her strength was normal in the bilateral upper and lower extremities; a neurological exam showed motor strength was normal and sensory exam was intact; and deep tendon reflexes were intact and symmetrical. (Id.)
The ALJ recognized that Plaintiff continued to be prescribed medication for pain and generally showed normal range of motion and normal strength in the bilateral upper and lower extremities. (AR 107.) The ALJ stated Plaintiff showed positive cervical/lumbar fact loading maneuvers with radiculopathy down her left lower extremity and bilateral knee tenderness, but that Sun Pain Management reports lack mention of gait difficulty or use of assistive devices. (Id.) The ALJ found at an appointment on January 16, 2020, Plaintiff's pain was stable since her last office visit and it was noted that Plaintiff continued to miss her appointments, being either a no call or no show on 8 or more appointments. (Id.) The ALJ found Plaintiff was put on Cymbalta in January 2020, and a musculoskeletal exam was positive for cervical and lumbar paraspinal tenderness with facet loading and right knee tenderness. (Id.) The ALJ additionally found that AZ Pain Medicine records note Plaintiff's medications help her to be functional and complete her activities of daily living while abnormal gait was first noted in November of 2020. (AR 108.) The ALJ stated, in one medical report from AZ Pain Medicine, it reported Plaintiff was “able to work full/part time with current dose.” (Id.)
Examining an MRI of the right knee from November 17, 2016, the ALJ found it showed an interval partial lateral meniscectomy, worsening degenerative change at the knee with increased lateral joint space narrowing, and valgus deformity. (AR 108.) Similarly, the ALJ found an MRI from June 16, 2021, showed moderate lateral knee compartment osteoarthritis with a small effusion and no loose bodies. (Id.) The ALJ reported x-rays of the cervical spine on June 16, 2021, showed C6-7 disc degeneration, while a CT scan of the cervical spine on January 13, 2021, also showed degenerative changes at ¶ 6-7 with anterior and posterior osteophyte formation. (Id.) However, x-rays of the lumbar spine on June 16, 2021, were normal. (Id.)
Based on these findings, the ALJ stated Plaintiff's “impairments limit her to less than the full range of light exertion, consistent with the assessed residual functional capacity. The record does not show claimant's needs (sic) to use a cane or assistive device. She alleges disability since August 5, 2018. Abnormal gait is noted nearly two years later in November 2020.” (AR 108) (internal citation omitted).
d. Discussion
Plaintiff argues the ALJ failed to connect anything specific in the medical record to a specific inconsistency with any particular portion of Plaintiff's testimony. (Doc. 21 at 19.) The Court agrees in part. To properly discredit Plaintiff's symptom testimony, the ALJ was required to specifically identify the testimony from Plaintiff he finds not to be credible and explain what evidence undermines that testimony. See Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (requiring an ALJ to “specifically identify the testimony [from a claimant] she or he finds not to be credible and ... explain what evidence undermines the testimony”) (quoting Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001)).
Here, the ALJ generally found that Plaintiff's “statements concerning the intensity, persistence and limiting effects of [her] symptoms [were] not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” (AR 107.) However, the ALJ merely summarized Plaintiff's symptom testimony and the medical evidence of record without making any express connection to which of Plaintiff's symptoms he found unsupported. After summarizing the medical record, the ALJ stated “[t]he record does not show claimant's needs (sic) to use a cane or assistive device. She alleges disability since August 5, 2018. Abnormal gait is noted nearly two years later in November 2020.” (AR 108) (internal citation omitted). To the extent that this is the reasoning for the ALJ's credibility determination, it does not satisfy the standard. See Smolen, 80 F.3d at 1284 (“The ALJ must state specifically which symptom testimony is not credible and what facts in the record lead to the conclusion.”).
“To determine whether the claimant's testimony regarding the severity of her symptoms is credible, the ALJ may consider, for example: (1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities.” Smolen, 80 F.3d at 1284.
When summarizing Plaintiff's records from Sun Pain Management, the ALJ found Plaintiff reported “her medication[s] were beneficial and helped keep her active.” (AR 107.) The ALJ did not cite to the record directly to support that finding, but in the same paragraph cited to the Sun Pain Management records as “Exhibit 1F, 4F, 12F.” (Id.) The record shows Plaintiff's Sun Pain Management records do often note “Patient states her medications are beneficial and help keep her active.” (See e.g., AR 422, 450, 540, 543, 547, 551.) Plaintiff did not testify as to what her daily activities consist of but did testify that her depression and panic attacks make it hard to leave the house and that her chronic pain requires her to lay down for at least two hours a day to ease the pain. (AR 43, 47-48.) The ALJ was required to “specifically identify the testimony [from a claimant] she or he finds not to be credible and ... explain what evidence undermines the testimony.” Treichler, 775 F.3d at 1102. Here, the ALJ has satisfied that requirement. The ALJ summarized Plaintiff's testimony in relevant part as “[t]he claimant testified she has problems leaving the house for doctor's appointments. She said she is depressed, and depression would cause her to miss work. She said she has panic attacks every day.” (AR 107.) To discredit this testimony, the ALJ pointed to various Sun Pain Management records that report Plaintiff states her medication help to keep her active. (Id.) The medical records undermine Plaintiff's testimony and the ALJ did not commit legal error in this conclusion.
Next, the ALJ appears to discredit Plaintiff's testimony because she missed medical appointments. (AR 107.) The ALJ may properly rely on “unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment, ” to discredit a Plaintiff's testimony. Smolen, 80 F.3d at 1284. Here, the ALJ improperly discredited Plaintiff's testimony based on missed doctor's appointments. The record indicates Plaintiff was seen by Sun Pain Management from October 2018 to January 2020. (AR 350-75, 540-51, 739-45.) In that time frame, Plaintiff was seen by a provider at Sun Pain Management almost every month. (See id.) Similarly, from March 2020 to March 2021, Plaintiff was seen every month by AZ Pain Medicine. (AR 813-35.) Regarding Plaintiff's missed appointments, Plaintiff explained in her testimony, and repeatedly to medical providers, that her memory problems and depression caused her to not want to leave the house and thus, she would miss doctor's appointments. (See AR 47-48, 401, 578, 582-83, 586, 589, 591, 626, 642, 840, 853.) Plaintiff has adequately and consistently explained the reason for the missed doctor's appointments, and to the extent the ALJ discredited her testimony based on this account, he erred.
Further, the ALJ erred in concluding that the Plaintiff did not need a cane or assistive device based on the record. On October 26, 2018, Nurse Practitioner Mandy Neblett noted Plaintiff “ambulates with assist of a cane.” (AR 375.) Further, in Dr. Pereyra's August 2019 report, she noted Plaintiff “is able to do some dishes but she uses a walker and her daughter puts it by the sink.” (AR 579.) While the record does not indicate a medical provider diagnosed Plaintiff with the need to use an assistive device, it is noted in October 2018, and again in August 2019, that Plaintiff used a cane or walker to get around. (AR 375, 579.) Plaintiff's testimony that she uses a cane any time she is walking because she “need[s] to count on something, ” is therefore consistent with the record. (AR 44.)
Regarding the ALJ's finding that abnormal gait is not noted until November of 2020, the medical evidence of record supports this finding. (AR 823.) However, Plaintiff did not testify as to her gait, but rather testified she has sharp pain in her back, tension pain in her neck, and sharp, stabbing pain in her knee. (AR 41.) She testified her knee hurts all the time, and lifting, walking, and bending worsen the pain. (AR 42.) The ALJ summarized the Sun Pain Management records and appears to discredit Plaintiff's testimony due to medical reports that stated Plaintiff showed normal range of motion and normal strength in the bilateral upper and lower extremities. (AR 107.) However, the ALJ noted the same Sun Pain Management records also mention Plaintiff had crepitus of the right knee, showed positive cervical/lumbar facet loading maneuvers with radiculopathy down the left lower extremity, bilateral knee tenderness, and her musculoskeletal exam was positive for cervical and lumber paraspinal tenderness with facet loading. (Id.)
While broadly citing to Sun Pain Management records, it is unclear whether the ALJ used the findings to discredit Plaintiff's testimony about her pain. To that extent, the ALJ erred by not specifying the portions of Plaintiff's testimony that were inconsistent with the medical evidence. See Smolen, 80 F.3d at 1284; Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015) (holding the ALJ must “specify which testimony she finds not credible, and then provide clear and convincing reasons, supported by evidence in the record, to support that credibility determination.”); Smartt, 53 F.4th at 499 (holding the clear and convincing standard “requires an ALJ to show his work, ” and clarifying that the “standard isn't whether [the] court is convinced, but instead whether the ALJ's rationale is clear enough that it has the power to convince.”); see also Curtis v. Comm'r of Soc. Sec. Admin., No. CV-18-00649-PHX-DGC, 2018 WL 6418486 (D. Ariz. Dec. 6, 2018) (finding the ALJ erred in discounting the plaintiff's symptom testimony by failing to explain why the abnormal findings did not support the plaintiff's general pain testimony or why the normal findings should be given more weight than the abnormal findings).
Taken together, the ALJ has failed to provide specific, clear, and convincing reasons supported by substantial evidence for discounting Plaintiff's symptom testimony, and such failure was error.
C. Plaintiff's Cervical and Lumbar Spine Impairments
Plaintiff lastly argues that the ALJ committed materially harmful error by concluding Plaintiff's cervical and lumbar spine impairments were not medically determinable or severe impairments at step two of the five-step sequential process. (Doc. 21 at 22.) The ALJ based this conclusion on the fact that “the record lacks imaging to support these diagnoses.” (AR 104.) Plaintiff argues the ALJ did not consider the 2019 lumbar and cervical spine CT scans that “showed mild to moderate facet arthropathy throughout the lower lumbar spine, L4-5 moderate disc space narrowing and early vacuum phenomenon, disc bulge/chronic protrusion with moderate deformity of the left lateral recess and left neural foramen, and a diagnosis of ‘lumbar spondylosis most marked at the L4-5 level.'” (Doc. 21 at 23.)
Plaintiff discusses the vital differences between an x-ray and a CT scan, because an x-ray of the lumbar and cervical spine performed in June 2021 “showed only C6-7 degeneration, (AR 876), and normal lumbar spine, (AR 877).” (Doc. 21 at 23). Plaintiff argues “x-rays are an inferior imaging technique for evaluating soft tissue impairments.” (Id.) Accordingly, Plaintiff contends that the ALJ erred when finding Plaintiff's spinal impairments were not medically determinable or severe, as the record provides ample support for a finding that Plaintiff's spinal impairments would cause more than a minimal effect on her ability to sustain work. (Id. at 24.) Plaintiff maintains the ALJ discounted the evidence with insufficient rationale. (Id.)
a. Legal Standard
The Ninth Circuit interprets the severity requirement as a “de minimis screening device to dispose of groundless claims.” Smolen, 80 F.3d at 1290. An impairment is not considered severe if it does not significantly limit the claimant's ability to do basic work activities. 20 C.F.R. § 404.1520(c). “Basic work activities are abilities and aptitudes necessary to do most jobs, including, for example, walking, standing, sitting, lifting, pushing, reaching, carrying or handling.” Smolen, 80 F.3d at 1290 (internal quotations and citations omitted). An impairment or combination of impairments will be found “not severe” when the medical evidence establishes only a slight abnormality that has no more than a minimal effect on an individual's ability to work. Id.; see also Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988). An ALJ “may find that a claimant lacks a medically severe impairment or combination of impairments only when his conclusion is clearly established by medical evidence.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (internal quotations and citation omitted).
b. Discussion
In evaluating the severity of Plaintiff's impairments, specifically Plaintiff's cervical and lumbar spine impairments, the ALJ found, “Spondylosis without myelopathy or radiculopathy, of the cervical and lumbar are not medical determinable impairments. The record lacks imaging to support these diagnoses.” (AR 104.) No further discussion followed.
In a report from August 11, 2019, Abrazo Arizona Heart Hospital reported the following based on Plaintiff's CT scan:
Vertebral body height and alignment are maintained. Mild discogenic changes, particularly at ¶ 4-5 however no fractures or malalignment. Mild to moderate facet arthropathy throughout the lower lumbar spine from L3 to S1. Sacrum and sacroiliac joints appear intact. Moderate disc space narrowing and early vacuum phenomenon noted at ¶ 4-5, broad-based posterior disc bulge/chronic protrusion are noted without evidence of canal stenosis although there is moderate deformity of the left lateral recess and left neural foramen.(AR 504.) The same report noted the impression based on the CT scan results as “[l]umbar spondylosis most marked at the L4-5 level. Chronic changes are present with broad-based posterior disc bulge/protrusion without canal stenosis however narrowing of the left neural foramen noted. Multilevel facet arthropathy from L3 to S1.” (Id.)
As discussed, supra, the ALJ found Plaintiff's severe impairments to be anxiety, depression, post-traumatic stress disorder, diabetes mellitus type II, chronic kidney disease stage 2, left knee osteoarthritis, polyneuropathy, and sciatica. (AR 104.) Based on the record, the ALJ found Plaintiff's impairments limit her to less than the full range of light exertion and found that Plaintiff has the residual capacity to perform light work with some additional restrictions. (AR 106.) In his decision, the ALJ reported that in August of 2019, imaging of Plaintiff's brain, cervical spine, and lumbar spine did not show fractures (AR 503-04), and in January of 2021, CT scans of Plaintiff's head and spine were unremarkable (AR 770-72). (AR 108.) The ALJ further discussed a CT scan of the cervical spine on January 13, 2021, that showed degenerative changes at ¶ 6-7 with anterior and posterior osteophyte formation (AR 795) and x-ray findings of the cervical spine from June 16, 2021, that showed C6-7 disc degeneration (AR 876). (AR 108.) The ALJ concluded by noting x-rays of the lumbar spine on June 16, 2021, were normal (AR 877). (AR 108.)
In addition, the ALJ found the record did not show Plaintiff's need to use an assistive device, while abnormal gait was noted nearly two years after the alleged disability date. (AR 108.) The record establishes the ALJ considered the record, including Plaintiff's multiple x-rays, MRIs, and CT scans. Thus, substantial evidence supports the ALJ's finding that Plaintiff's cervical and lumbar spine impairments were non-severe. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (finding an ALJ's determination of a claimant's RFC should be affirmed where the ALJ applied the proper legal standards, and his decision was supported by substantial evidence).
In considering a claimant's symptoms, an ALJ follows a two-step process. See Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, the ALJ must determine whether there is an underlying medically determinable physical or mental impairment that could reasonably be expected to produce the claimant's pain or other symptoms. Id. at 1036. At step two, the ALJ must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's work-related activities. See 20 C.F.R. § 404.1529(c)(1). Step two is not meant to identify the impairments that should be taken into account when an ALJ is determining a claimant's residual functional capacity. See Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017). “In assessing RFC, the adjudicator must consider limitations and restrictions imposed by all of an individual's impairments, even those that are not severe.” Id. at 1049 (internal quotations and citations omitted). Thus, the RFC should be the same regardless of whether a claimant's impairments are considered severe or not. See id. In the case at bar, the ALJ considered all of Plaintiff's impairments, both severe and non-severe, and found that Plaintiff is limited to less than the full range of light exertion and has the residual capacity to perform light work with additional restrictions.
Accordingly, step two was decided in Plaintiff's favor and any alleged error in the ALJ's determination that Plaintiff's cervical and lumbar spine impairments were non-severe are therefore harmless. See Buck, 869 F.3d at 1049 (holding that absent evidence indicating that the ALJ misunderstood the plaintiff's impairments, any alleged error in the ALJ's determination of the plaintiff's RFC is harmless).
IV. REMAND
Based on the foregoing, the Court finds that the ALJ erred in discounting Dr. Pereyra and NP Eastin's opinions as well as Plaintiff's symptom testimony. As such, the Court must determine whether to remand for further proceedings or calculation of benefits. Plaintiff argues that the ALJ's errors require this Court to apply the credit-as-true rule and remand her case for computation of benefits. (Doc. 21 at 24-25.) “The decision whether to remand a case for additional evidence, or simply to award benefits is within the discretion of the court.” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). Although the ordinary remedy for reversible error is to remand the case for further administrative proceedings, the credit-as-true rule may apply in rare circumstances. See Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014).
Under the credit-as-true rule, the Court may remand for the award of benefits if the following three criteria are met: (1) the record was fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting claimant testimony or medical opinion evidence; and (3) crediting the evidence as true, the ALJ would be required to find the claimant disabled upon remand. Garrison, 759 F.3d at 1020. However, even if the credit-as-true criteria are met, the Court may remand for further proceedings when “the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act.” Id. at 1021.
Here, although the ALJ failed to properly evaluate Plaintiff's medical provider's opinions and Plaintiff's symptom testimony, further administrative proceedings would be useful to resolve ambiguities in the record. For example, while Plaintiff testified she is unable to sit for long periods and needs to lie down for at least two hours a day to help with the pain (AR 43), it was noted in NP Eastin's November 2, 2020, report that Plaintiff is able to “work full/part time with current dose” (AR 824). The same report, though, recorded abnormal gait for the first time and stated Plaintiff had difficulty rising from a seated position. (Id.) Also, in three of NP Eastin's reports, it was noted that Plaintiff was able to work “full/part time” (AR 814, 816, 824), but the other eleven reports lacked such a finding (AR 817, 819, 821, 825-35). Thus, it is unclear whether the finding was intentionally included or omitted in the reports. The Court cannot conclude after carefully considering the entire record that the credit-as-true rule applies. Further proceedings are necessary to resolve discrepancies in the record.
V. CONCLUSION
The ALJ failed to support his rejection of the opinions of Dr. Pereyra and NP Eastin with substantial evidence and failed to provide specific, clear, and convincing reasons supported by substantial evidence to reject Plaintiff's symptom testimony.
Accordingly, IT IS THEREFORE RECOMMENDED that the final decision of the Commissioner of Social Security is REVERSED and this case is REMANDED for FURTHER PROCEEDINGS.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rules of Appellate Procedure, Fed. R. App. P. 4(a)(1), should not be filed until entry of the District Court's judgment. Pursuant to 28 U.S.C. § 636(b), any party may file and serve written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. Pursuant to Rule 7.2(e)(3), Local Rules of Civil Procedure, objections to the Report and Recommendation may not exceed ten (10) pages. If objections are not timely filed, the party's right to de novo review by the District Judge is waived. See U.S. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).