Opinion
CV-21-00366-TUC-DCB (DTF)
08-15-2022
Sandra Lopez, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable D. Thomas Ferraro United States Magistrate Judge
Plaintiff Sandra Lopez (Lopez) brought this action pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3) seeking judicial review of the final decision by the Commissioner of Social Security (Commissioner) finding she was not disabled. (Doc. 1.) The parties have fully briefed the issues. (Docs. 19, 24, 25.) This matter was referred to the undersigned United States Magistrate Judge for a Report and Recommendation. (Doc. 14.) As more fully set forth below, based on the pleadings and the submitted administrative record (AR), the Court recommends the District Court, after its independent review, vacate the decision of the Commissioner and remand for further proceedings.
BACKGROUND
Lopez was born in 1972. (AR 32.) She has a high school diploma and no past relevant work history. (AR 33.) In 2017, Lopez had a growth removed from her brain. (AR 1191.) After the surgery, she experienced headaches and an unresponsive episode. (AR 354-55.) Lopez also received treatment for migraines and seizures. (AR 314-28.) She also has a history of knee and back pain. (AR 369, 1047.) During the application process, she was diagnosed with thyroid cancer. (AR 33.)
In August 2019, Lopez applied for Social Security Disability Insurance under Title II and Supplemental Security Income under Title XVI alleging disability beginning in 2017. (AR 157-66.) She alleged disability based on brain surgery, seizures, migraines, and thyroid glands. (AR 46, 187.)
Lopez's claims were initially denied on November 26, 2019, and again on reconsideration on October 1, 2020. (AR 44, 76.) She requested a hearing. (AR 99.) On April 22, 2021, Administrative Law Judge (ALJ) Laura Speck Havens held an administrative hearing. (AR 28.) At the hearing, Lopez and Vocational Expert (VE) Bonnie SinClair testified. (AR 29, 32, 41.)
On May 5, 2021, the ALJ issued her unfavorable decision. (AR 10.) At step one, the ALJ determined Lopez had not engaged in substantial gainful activity since the application date. (AR 15.) At step two, the ALJ established Lopez had the following severe impairments: degenerative disc disease, seizure disorder, migraine headaches, thyroid disorder, neurocognitive disorder, and anxiety disorder. Id. The ALJ considered Lopez's knee pain and swelling, sleep apnea, and obesity, in addition to the severe impairments. (AR 15-16.)
At step three, the ALJ determined there were no impairments or combination of impairments that were equal to the impairments listed in 20 C.F.R. Par 404, Subpart P, Appendix 1. (AR 16.) For Lopez's mental impairments, the ALJ contemplated the "paragraph B" criteria, which requires one extreme limitation or two marked limitations in broad areas of functioning. (AR 16-17.) The ALJ found a moderate limitation in understanding, remembering, or applying information and interacting with others and concentrating, persisting, or maintaining pace and a mild limitation in adapting or managing oneself. Id. The ALJ concluded the "paragraph B" criteria were not satisfied. (AR 17.)
After step three but before step four, the ALJ determined Lopez had a residual functional capacity (RFC) to perform light work as defined in 20 C.F.R. § 416.967(b), with some exceptions. Id. For example, the ALJ specified Lopez could occasionally lift and carry twenty-five pounds and frequently lift and carry ten pounds. Id. The ALJ also stated Lopez could occasionally climb stairs but should never climb ladders. Id. The ALJ determined Lopez should only have occasional exposure to heights or moving machinery. Id. The ALJ also concluded Lopez could understand, remember, and carry out simple job instructions only with occasional interaction with public. Id. The RFC also limited Lopez's ability to work in a fast-paced environment. Id.
There appears to be a scrivener's error. Both parties agree the ALJ meant to say occasionally. (Doc. 19 at 5 n.1; Doc. 24 at 4 n.3.)
At step four, the ALJ established Lopez had no past relevant work, and thus could not perform such work. (AR 20.) At step five, the ALJ decided there were jobs in sufficient number in the national economy that Lopez could perform. Id. Specifically, the ALJ determined Lopez could perform the position of room cleaner, laundry worker, and marker. (AR 21.) Thus, the ALJ concluded that Lopez was not disabled. Id.
On August 9, 2021, the Appeals Council denied Lopez's request for review. (AR 1-3.) On September 13, 2021, Lopez filed a complaint challenging the ALJ's unfavorable decision. (Doc. 1.) This Court has jurisdiction pursuant to § 405(g).
STANDARD OF REVIEW
Courts review 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). A person is disabled if their "physical or mental impairment or impairments are of such severity" that they are unable to do both their previous work and, considering their "age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists" in their immediate area, whether a specific job vacancy exists for them, or whether they would be hired if they applied for work. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
Courts may overturn the decision to deny benefits only "when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is because the ALJ "and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ." Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); see Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004). Substantial evidence "must be more than a mere scintilla but may be less than a preponderance." Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (quoting Molina v. Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012)). Courts must consider the record as a whole and "may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014) (quoting Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012)).
Even if the ALJ made an error, courts may affirm if the error was harmless; in other words, if it was "inconsequential to the ultimate nondisability determination." Fordv. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)). "A reviewing court may only consider 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.'" Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018) (quoting Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014)); see Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (stating courts cannot "affirm the denial of benefits on a ground not invoked by the Commissioner in denying the benefits originally" (quoting Pinto v. Massanari, 249 F.3d 840, 847-48 (9th Cir. 2001))).
ISSUES ON REVIEW
Lopez raises two issues. (Doc. 19 at 2.) She argues the ALJ failed to discuss aspects of Dr. Rohen's opinion that are more limiting that the RFC. Id. at 8-10. She further contends the ALJ did not articulate a clear and convincing reason for discounting Lopez's symptom testimony. Id. at 10-14. Lopez highlights her cognitive deficits. Id. at 10.
DISCUSSION
Dr. Rohen's Opinion
In the past, the United States Court of Appeals for the Ninth Circuit mandated ALJs give treating practitioner's opinions "controlling weight," and there was a hierarchy of medical opinions. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). Under this framework, ALJs were required to provide "specific and legitimate reasons" to reject a treating or examining practitioner's opinion when another medical source's opinion contradicted it. Smith v. Kijakazi, 14 F.4th 1108, 1114 (9th Cir. 2021). However, in 2017, the regulations changed for claims filed on or after March 27, 2017. 20 C.F.R. §§ 404.1520c(a) ("We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources."), 416.920c(a) (same). Because Lopez filed her application for disability after March 27, 2017, the medical opinions are subject to the new regulations.
The Ninth Circuit recently stated "the 'specific and legitimate' standard is clearly irreconcilable with the 2017 regulations, the extent of the claimant's relationship with the medical provider-what we will refer to as 'relationship factors'-remains relevant under the new regulations." Woods v. Kijakazi, 32 F.4th 785, 790 (9th Cir. 2022). The medical source's relationship with the claimant is still relevant to assess the persuasiveness of the opinion. Id. at 792 (citing § 404.1520c(c)(3)). The ALJ must "articulate . . . how persuasive [they] find all of the medical opinions" and "explain how [they] considered the supportability and consistency factors." § 416.920c(b). Supportability refers to the amount of relevant objective medical evidence and supporting explanations provided by the medical source. § 416.920c(c)(1). Consistency mandates that the "more consistent a medical opinion(s) or prior administrative medical finding(s) is with" the record, "the more persuasive" the opinion or finding will be. § 416.920c(c)(2).
Here, on September 14, 2020, Noelle Rohen, PhD, performed a psychological evaluation on Lopez. (AR 885.) Dr. Rohen reported Lopez was pleasant and cooperative with good eye contact. (887.) She also stated Lopez's affect was limited in range. Id. Lopez's retrograde memory and insight were limited; She had trouble expressing herself. Id. On the Folstein Mini Mental Status Examination, Lopez scored a sixteen out of thirty, which indicates considerable impairment. Id. Dr. Rohen stated that Lopez "had trouble today even with basic instructions, though does appear to be basically literate." (AR 888.) Dr. Rohen believed Lopez's "processing speed and general efficiency may be problematic on the job." Id. However, Dr. Rohen noted Lopez "should be able to learn simple tasks with patience and repetition." Id. Moreover, Dr. Rohen stated Lopez would benefit from assistance in managing any benefits she may receive. Id. Dr. Rohen noted Lopez's understanding and memory were fair with "receptive misses in conversation." (AR 889.) She concluded Lopez's "concentration is likely to be a challenge." Id. Finally, Dr. Rohen stated Lopez "can learn new tasks and avoid hazards with patience and effort, though it will be tougher for her than for peers, and she may be slower and less efficient." Id. Dr. Rohen finally concluded Lopez would "do better in a setting in which she can master a task or two and complete those repeatedly." Id.
In the decision, the ALJ found a moderate limitation in understanding, remembering, or applying information and interacting with others and concentrating, persisting, or maintaining pace and a mild limitation in adapting or managing oneself. (AR 16-17.) For reference, moderate limitation means the claimant's ability to function "independently, appropriately, effectively, and on a sustained basis is slightly limited." 20 C.F.R. P. 404, Subpt. P, App. 1, § 12.00(F)(2)(c). "Marked limitation" refers to "functioning in [an] area independently, appropriately, effectively, and on a sustained basis [that] is seriously limited." Id. § 12.00(F)(2)(d). The ALJ concluded the "paragraph B" criteria were not satisfied. (AR 17.) When considering the prior administrative findings and the opinion of medical sources, the ALJ concluded that Dr. Rohen's opinion was persuasive. (AR 20.) The ALJ stated, "The opinion that the claimant has significant limitations in understanding and remembering, concentration and persistence, and interacting with others is well supported by her examination of the claimant. (11F p. 5).
The opinions are also consistent with the claimant's mental status exam showing memory and persistence limitations." Id.
Lopez argues the ALJ inconsistently analyzed Dr. Rohen's opinion. (Doc. 19 at 2, 5, 8.) While the ALJ found Dr. Rohen's opinion to be persuasive, the ALJ seemed to ignore Dr. Rohen's conclusions that Lopez had a marked limitation in adaptation, concentration, persisting, or maintaining pace, and a need for a sheltered environment. Id. at 5-10. The Court agrees.
The language of Dr. Rohen's opinion does not perfectly align with the regulatory language. (Compare AR 889 with 20 C.F.R. P. 404, Subpt. P, App. 1, § 12.00(F)(2).) However, Dr. Rohen acknowledged more than fair or moderate limitations in concentration and adaption, which indicates Dr. Rohen opined marked limitations in those areas. (AR 889.) Further, Dr. Rohen concluded that Lopez would need patience and repetition to learn simple tasks. (AR 888.) The Court agrees that these limitations indicate a sheltered environment or at least an environment with more supervision or assistance that others in similar work, such that the work may not qualify as substantial gainful activity. See 20 C.F.R. § 416.973(b).
The Commissioner argues that the ALJ properly address supportability, consistency, and persuasiveness, and that the ALJ is not required to adopt every limitation in a persuasive opinion. (Doc. 24 at 7.) The ALJ explained supportability, consistency, and persuasiveness of the opinion, but then the ALJ clearly downgraded the marked limitations to moderate limitations without explanation and failed to address the requirement for a patient and repetitive work environment. (AR 16-20.) Merely labeling an opinion as persuasive does not free the ALJ of the obligation to provide sufficient reasoning such that courts could review the decision. See Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020) (requiring sufficient explanation for meaningful review). This would undermine the requirement that ALJs explain the persuasiveness of an opinion. Because the Court cannot determine from the ALJ's decision why she disagreed with portions of the persuasive opinion, the Court finds she erred.
Because the ALJ erred, the Court must consider whether the error was harmless or not. See Ford, 950 F.3d at 1154. The Commissioner contends that the assessed limitations are in the RFC. (Doc. 24 at 8.) Specifically, the Commissioner states that the RFC limits Lopez to simple job instructions in work environment that is not fast paced. Id. The Commissioner argues this accounts for Dr. Rohen's opinions that Lopez's processing speed and efficiency may be problematic, that Lopez would do better in a setting where she could master a task or two and repeat those. Id. However, this does not address that Dr. Rohen stated that Lopez could "learn simple tasks with patience and repetition." (AR 888 (emphasis added).) Limiting Lopez to simple instructions does not capture the additional need for patience and repetition within the instructions. A slow-paced environment may not be repetitive. The regulations note that if a claimant can only do simple tasks with additional supervision or assistance then they may not be performing substantial gainful activity. 20 C.F.R. § 416.973(b). Hence, the Court concludes this error was not inconsequential to the ultimate nondisability determination because it could have altered the decision. Therefore, the Court recommends vacating and remanding the decision, as Lopez requests.
Discounting Lopez's Symptom Testimony
For an ALJ to discredit a claimant's testimony they must complete the following two-step analysis. Smith, 14 F.4th at 1111. "First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment 'which could reasonably be expected to produce the pain or other symptoms alleged.'" Garrison, 759 F.3d at 1014 (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). The claimant need not present objective evidence of the symptom itself (e.g., pain), or of its severity. Id. (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)).
Second, absent evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so." Id. at 1014-15 (quoting Smolen, 80 F.3d at 1281). "General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995), as amended (Apr. 9, 1996)); see also Lambert, 980 F.3d at 1277 ("[T]he ALJ never identified which testimony she found not credible, and never explained which evidence contradicted that testimony." (quoting Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015))). Thus, "[t]o support a lack of credibility finding, the ALJ [is] required to point to specific facts in the record." Burrell, 775 F.3d at 1138 (quoting Vasquez v. Astrue, 572 F.3d 586, 592 (9th Cir. 2009)). The ALJ must also link the testimony to the record supporting the non-credibility determination. Brown-Hunter, 806 F.3d at 494. "An ALJ . . . may not discredit the claimant's subjective complaints solely because the objective evidence fails to fully corroborate the degree of pain alleged." Coleman v. Saul, 979 F.3d 751, 756 (9th Cir. 2020).
Here, on November 12, 2019, Lopez submitted an adult function report. (AR 206, 213.) She stated that she prepared "several courses" each day but that she would get tired fast. (AR 208.) Lopez recounted that she was unable to count change and that she had difficulty in handling money. (AR 209-10.) She stated that she needed reminders to go places and that she needed someone to accompany her. (AR 210.) She reported "no trouble in" paying attention or following written instructions. (AR 211.) Lopez claimed she could not handle stress well but that she could handle changes in routine. (AR 212.)
On February 19, 2020, Lopez submitted another adult function report. (AR 224, 231.) She denied needing reminders for medication or personal needs. (AR 226.) She amended her cooking to only making sandwiches. Id. Lopez claimed she could count change. (AR 227.) She reported issues with seeing, memory, walking, lifting, and others. (AR 229.) She also stated, "I don't think paying attention is a problem for me." Id. However, some of her responses did not make sense in context. (AR 226, 229.) For example, the form asked, "How well do you follow written instructions? (For example a recipe)." (AR 229.) To which, Lopez responded, "I've never wrote a recipe before." Id.
At the hearing, Lopez testified that she was able to read. (AR 32.) Lopez also reported being able to do simple adding and subtracting. Id. She also stated that is she took her medication her migraines were "not too bad." (AR 38.)
At step three of the ALJ's decision, the ALJ discussed the paragraph B criteria for Lopez's mental impairments. (AR 16-17.) For understanding, remembering, or applying information, the ALJ noted that Lopez "reported she needs no reminders to take her medication and can follow written and spoken instructions." (AR 16.) The ALJ found a moderate limitation in this area based on the consultative examination. (AR 16-17.) For interacting with others, the ALJ found a moderate limitation despite Lopez reporting that she had no such difficulty. (AR 17.) For concentrating, persisting, or maintaining pace, the ALJ concluded Lopez had a moderate limitation. Id. The ALJ included that Lopez "alleged she has problems concentrating but that she has no problems paying attention." Id. In adapting or managing oneself, the ALJ decided Lopez had a mild limitation. Id. The ALJ noted Lopez reported shopping and doing chores. Id.
After step three but before step four, the ALJ determined Lopez's RFC. (AR 17.) Further, the ALJ stated:
After careful consideration of the evidence, the undersigned finds 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 for the reasons explained in this decision.(AR 18.) The ALJ noted that Lopez had a seizure disorder but had been relatively free of seizures since February 2019 with only one reported seizure. Id. The ALJ discussed Lopez's migraines, mentioning that Lopez had reported improvement in September 2019. (AR 19.) The ALJ also discussed Lopez's hypothyroidism and back pain. Id.
The ALJ then discussed Lopez's neurocognitive disorder and adjustment disorder with anxiety. Id. The ALJ noted that Lopez was alert and oriented during examinations. Id. The ALJ noted Lopez's results with Dr. Rohen, which indicated "considerable impairment." Id. Then the ALJ described that Lopez failed to read and follow a three-step instruction. Id. The ALJ concluded that Lopez's "performance at the consultative examination, taken together with her treatment examinations, show [she] is limited to simple work with the additional mental limitations given above." Id.
Dr. Rohen actually stated that Lopez had a neurodevelopmental disorder. (AR 888.)
The ALJ then determined Lopez's "statements about the intensity, persistence, and limiting effects of . . . her symptoms . . . are inconsistent because the record shows the claimant's headaches and seizures do not occur at the frequency or severity she reported." Id. The ALJ then noted that the record did not show Lopez's reported weakness, fatigue, gait abnormality, or limited range of motion. Id.
Lopez claims the ALJ "failed to identify any reason supported by substantial evidence for disregarding Ms. Lopez' symptom allegations." (Doc. 19 at 14.) Lopez highlights her cognitive problems as the real issue, even if she disagrees with her other symptoms being discounted. Id. at 13. She contends that her need for special supervision and longer periods to learn even simple tasks affects the availability of competitive employment. Id. at 10. The Court disagrees because the ALJ did not disregard Lopez's reported cognitive symptoms.
The ALJ disregarded Lopez's reported headaches, seizures, weakness, fatigue, gait abnormality, and limitation of motion, but the ALJ stated that Lopez is limited to simple work with additional mental limitations provided. (AR 19.) Lopez did not provide testimony or statements for cognitive limitations greater than those provided in the RFC. Lopez would have the Court determine that her reports were "aspirational rather than actual." (Doc. 19 at 12.) For example, Lopez reported no issues in paying attention or in needing reminders. (AR 211, 226, 229.) Thus, the Court finds no error. Therefore, if the District Court finds no error in the evaluation of Dr. Rohen's opinion, then the District Court should affirm the Commissioner's final decision.
RECOMMENDATION
Based on the foregoing, the Magistrate Judge RECOMMENDS that the District Court, after its independent review, enter an order vacating the Commissioner's final decision and remanding this matter for proceedings consistent with its opinion.
This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Fed. R. App. P., should not be filed until entry of the District Court's judgment.
However, the parties shall have fourteen (14) days from the date of service of a copy of this Recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a, d), 72(b). Thereafter, the parties have fourteen (14) days within which to file a response to the objections. No reply briefs shall be filed unless the District Court grants leave to do so. The Clerk of Court is directed to terminate the referral of this matter. Filed objections should bear the following case number: CV 21-00366-TUC-DCB. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).