Opinion
No. 3:20-cv-00021-HZ
05-08-2021
NICHOLAS H., Plaintiff, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
Caitlin Laumaker George Wall Law Offices of George J. Wall 825 NE 20th Avenue, Suite 330 Portland, OR 97232 Attorneys for Plaintiff Renata Gowie Assistant United States Attorney District of Oregon 1000 SW Third Avenue, Suite 600 Portland, OR 97204 Frederick Fipps Social Security Administration Office of the General Counsel 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104 Attorneys for Defendant
OPINION & ORDER Caitlin Laumaker
George Wall
Law Offices of George J. Wall
825 NE 20th Avenue, Suite 330
Portland, OR 97232
Attorneys for Plaintiff Renata Gowie
Assistant United States Attorney
District of Oregon
1000 SW Third Avenue, Suite 600
Portland, OR 97204 Frederick Fipps
Social Security Administration
Office of the General Counsel
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, WA 98104
Attorneys for Defendant HERNÁNDEZ, District Judge:
Plaintiff Nicholas H. brings this action seeking judicial review of the Commissioner's final decision to deny disability insurance benefits ("DIB"). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). The Court remands the Commissioner's decision.
PROCEDURAL BACKGROUND
Plaintiff applied for DIB on July 24, 2018, alleging an onset date of January 1, 2012. Tr. 94. Plaintiff's date last insured ("DLI") is December 31, 2016. Tr. 94. His application was denied initially and on reconsideration. Tr. 99-107.
Citations to "Tr." refer to the page(s) indicated in the official transcript of the administrative record, filed herein as Docket No. 10.
On June 11, 2019, Plaintiff appeared with counsel for a hearing before an Administrative Law Judge ("ALJ"). Tr. 33. On July 31, 2019, the ALJ found Plaintiff not disabled. Tr. 28. The Appeals Council denied review. Tr. 1.
FACTUAL BACKGROUND
Plaintiff alleges disability based on anxiety, PTSD, and depression. Tr. 197. At the time of his alleged onset date, he was twenty-four years old. Tr. 77. He has a high school education and past relevant work experience as a radio mechanic. Tr. 27. /// ///
SEQUENTIAL DISABILITY EVALUATION
A claimant is disabled if they are unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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), 1382c(a)(3)(A). Disability claims are evaluated according to a five-step procedure. See Valentine v. Comm'r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step procedure to determine disability). The claimant bears the ultimate burden of proving disability. Id.
In the first step, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled. Id.
In step three, the Commissioner determines whether the claimant's impairments, singly or in combination, meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity (RFC) to perform their "past relevant work." 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can perform past relevant work, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(e)-(f), 416.920(e)-(f). If the Commissioner meets their burden and proves that the claimant can perform other work that exists in the national economy, then the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ'S DECISION
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity after his alleged onset date through his date last insured. Tr. 19. Next, at steps two and three, the ALJ determined that Plaintiff has the following severe impairments: "obstructive sleep apnea; posttraumatic stress disorder; anxiety disorder; affective disorder; chronic lumbar strain; and, left ankle condition post-surgery." Tr. 19. However, the ALJ determined that Plaintiff's impairments did not meet or medically equal the severity of a listed impairment. Tr. 20. At step four, the ALJ concluded that Plaintiff has the residual functional capacity to perform light work as defined in 20 C.F.R. §§ 404.1567(b) with the following limitations:
He could frequently climb ramps and stairs, but never climb ladders, ropes or scaffolds; he could occasionally balance, stoop, kneel, crouch, and crawl; he could perform simple routine tasks; he could have no contact with the general public; he could have . . . occasional contact with coworkers and supervisors, but no over-the-shoulder supervision; he could perform low stress work, defined as having no production pace and with only occasional changes in the work routine setting.Tr. 24. Because of these limitations, the ALJ concluded that Plaintiff could not perform his past relevant work. Tr. 27. But at step five, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, such as "Mail Clerk" and "Hand Packager." Tr. 28. Thus, the ALJ concluded that Plaintiff is not disabled. Tr. 28. /// ///
STANDARD OF REVIEW
A court may set aside the Commissioner's denial of benefits only when the Commissioner's findings "are based on legal error or are not supported by substantial evidence in the record as a whole." Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (internal quotation marks omitted). The court considers the record as a whole, including both the evidence that supports and detracts from the Commissioner's decision. Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). "Where the evidence is susceptible to more than one rational interpretation, the ALJ's decision must be affirmed." Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) ("Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's") (internal quotation marks omitted).
DISCUSSION
Plaintiff argues the ALJ erred by: (1) rejecting Plaintiff's subjective symptom testimony regarding Plaintiff's psychological impairments and (2) failing to fully develop the record. Because the ALJ erred in failing to fully develop the record, the Court reverses the Commissioner's decision and remands this case for further administrative proceedings.
I. Subjective Symptom Testimony
The ALJ is responsible for evaluating symptom testimony. SSR 16-3p, 2017 WL 5180304, at *1 (Oct. 25, 2017). Once a claimant shows an underlying impairment and a causal relationship between the impairment and some level of symptoms, clear and convincing reasons are needed to reject a claimant's testimony if there is no evidence of malingering. Carmickle v. Comm'r, 533 F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative evidence that the plaintiff is malingering, "where the record includes objective medical evidence establishing that the claimant suffers from an impairment that could reasonably produce the symptoms of which he complains, an adverse credibility finding must be based on clear and convincing reasons") (quotation marks and citation omitted); see also Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (the ALJ engages in a two-step analysis for subjective symptom evaluation: First, the ALJ determines whether there is "objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged"; and second, "if the claimant has presented such evidence, and there is no evidence of malingering, then the ALJ must give specific, clear and convincing reasons in order to reject the claimant's testimony about the severity of the symptoms.") (quotation marks and citations omitted).
When evaluating subjective symptom testimony, "[g]eneral findings are insufficient." Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). "An ALJ does not provide specific, clear, and convincing reasons for rejecting a claimant's testimony by simply reciting the medical evidence in support of his or her residual functional capacity determination." Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015). Instead, "the ALJ must specifically identify the testimony she or he finds not to be credible and must explain what evidence undermines the testimony." Holohan v. Massanari, 246 F.3d 1195 (9th Cir. 2001); see also Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (The reasons proffered must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discount the claimant's testimony.").
Plaintiff served in the United States Marine Corps Reserve from 2005 to 2010. Tr. 44, 218. He worked as a field wireman and switchboard operator. Tr. 68. Then, he last worked in a call center doing Xbox repair from 2010 to 2011 for a company called Stream Global Services and earned a little money on the side in 2012 by working for an individual who was "loading ammunition" in his basement. Tr. 45-46. He left his job at Stream Global Services because he was having respiratory issues and "was getting tired of being yelled at by customers and [his] bosses." Tr. 46. He left his position loading ammunition because he found out his employer had "questionable political standings." Tr. 46. Plaintiff has not since applied for a job because he does not want to deal with the stress of the workplace. Tr. 57. He testified that he would have difficultly working full-time because of his trouble sleeping, irritability, and lower back pain. Tr. 59-60.
Plaintiff started seeking mental health treatment after a suicide attempt in 2009. Tr. 47. Since then, he's engaged in treatment "off and on." Tr. 47. He suffers from PTSD and has trouble sleeping without medication, getting four to eight hours of sleep with medication depending on the conditions outside. Tr. 47-48. He has problems with nightmares three or four times a week. Tr. 49. His insomnia makes it difficult to keep a schedule. Tr. 232. Plaintiff does not like to go out or spend time in crowds. Tr. 47. If he needs to go to the store, he has "blinders on" to get what he needs and leaves. Tr. 47. He fears that everyone "can cause a problem" and gets overwhelmed by the noise of the crowd. Tr. 49. Plaintiff is hypervigilant and will look outside if he hears something and locks his doors at all times of the day. Tr. 47. Plaintiff does not like loud noises unless he can see where it is coming from. Tr. 47. He "get[s] short with people at times" and is "nervous a lot of the time if [he's] out and about." Tr. 48. But he tries to go out and spend time with other people because he does not want to be lonely. Tr 50. Plaintiff testified that he "loses time," forgetting what day it is and sometimes sleeping for days at a time when he was not medicated. Tr. 51. He can have trouble remembering details. Tr. 237. He still experiences "ups and downs" but his medication is helping. Tr. 53. Plaintiff does not like taking medication, but he is "dealing with it" because it is necessary. Tr. 52.
Plaintiff begins a typical day by checking email, phone messages, and social media. Tr. 233. He then watches television and has breakfast. Tr. 233. He spends his days working on art projects, 3D modeling projects, or other hobbies. Tr. 233. Plaintiff will eat lunch if he remembers and is not distracted by projects. Tr. 233. Plaintiff also talks on his amateur radio, plays video games, and goes to the gym. Tr. 233. He then eats dinner, takes medication, and reads or watches television until he falls asleep. Tr. 233. Before his impairments, Plaintiff could go out without anxiety, sleep normally without medication, run, and lift weights without pain. Tr. 233.
Plaintiff testified that he spends most of his time at home on his computer or reading a book. Tr. 64. Plaintiff goes to the gym regularly to try to lose weight and control his diabetes. Tr. 55. He spends his time at the gym using free weights and machines. Tr. 55-56. He can prepare his own meals, cook frozen foods, make sandwiches, and bake. Tr. 234. Plaintiff can clean his house, do laundry, maintain his computer, mow the lawn, and wash dishes. Tr. 235. These activities take him a few hours. Tr. 235. He goes out two or three days a week. Tr. 235. Plaintiff can shop for food in stores every week for thirty minutes to an hour. Tr. 235. He enjoys his hobbies—which include reading, gaming, ham radio, board games, and customizing gaming consoles—"very often" and does them "quite well." Tr. 236. Plaintiff spends time with others playing games online and in-person, talking on the phone, and at occasional get togethers. Tr. 236. He goes to friend's houses, the game store, and VA clinic regularly. Tr. 236. But he engages in fewer in-person social activities than before his impairments began. Tr. 237. He has less tolerance for messes and "stupid" actions. Tr. 237. He does not handle stress well, is "reclusive," and has "explosions with no clear source." Tr. 238.
The ALJ gave two reasons for rejecting Plaintiff's subjective symptom testimony. First, the ALJ found that Plaintiff's alleged mental health symptoms and limitations were inconsistent with Plaintiff's activities of daily living. Second, the ALJ concluded that Plaintiff's degree of mental impairment was not supported by the treatment record, including his intermittent complaints, few objective findings, success with medication and counseling, and limited treatment. The Court addresses each in turn.
Plaintiff does not appear to challenge the ALJ's findings as to his physical impairments. Accordingly, the Court limits its analysis to the ALJ's discussion of Plaintiff's mental impairments.
A. Activities of Daily Living
Contradiction with a claimant's activities of daily living is a clear and convincing reason for rejecting a claimant's testimony. Tommasetti, 533 F.3d at 1039. There are two grounds for using daily activities to form the basis of an adverse credibility determination: (1) when activities meet the threshold for transferable work skills and (2) when activities contradict a claimant's other testimony. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). However, "disability claimants should not be penalized for attempting to lead normal lives in the face of their limitations," Reddick, 157 F.3d at 722, and "the mere fact that a plaintiff has carried on with certain daily activities, such as grocery shopping . . . does not in any way detract from his credibility," Webb v. Barnhart, 433 F.3d 683, 688 (9th Cir. 2005) (citing Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir.2001)). In order to impact a claimant's credibility, the activity has to be "inconsistent with claimant's claimed limitations." Reddick, 157 F.3d at 722. The ALJ cannot mischaracterize statements and documents in the record or take these out of context in order to reach his conclusion on the claimant's credibility. Id. at 722-23.
The ALJ found that Plaintiff's testimony as to his difficulty with sleep, depression, anxiety, panic attacks, and PTSD were inconsistent with his daily activities. Tr. 25-26. In discussing Plaintiff's insomnia, the ALJ noted that Plaintiff was working with this impairment in March 2016 and that Plaintiff could exercise, play video games, and make 3-D models. Tr. 35. As to Plaintiff's remaining mental health symptoms, the ALJ emphasized Plaintiff's testimony that he was able to perform "a wide variety of daily activities with his mental impairments," including driving a car, grocery shopping, preparing meals, and cleaning his home. Tr. 26. The ALJ also noted that Plaintiff reported going to Comic-Con in September 2016. Tr. 26.
The ALJ did not err in discounting Plaintiff's testimony due to his activities of daily living. In his testimony and function report, Plaintiff described spending his days working on artprojects, 3D modeling projects, talking on his amateur radio, playing video games, going to the gym, and reading. Tr. 55, 64, 233. He wrote that he does his hobbies "very often" and "quite well," and he described being so distracted with his projects that he sometimes forgets to eat lunch. Tr. 233, 236. He goes out two or three days a week and shops weekly. Tr. 235. Plaintiff also spends time with others playing video games online and in-person, talking on the phone, and going to occasional get togethers. Tr. 236. Throughout the medical record, Plaintiff also reports significant activities to his providers. For example, Plaintiff attended Comic-Con and spent hours in line to get Stan Lee's autograph. Tr. 592. He told providers he was "very involved in a number of activities aimed at bringing together returning vets" and enjoyed attending a veteran's breakfast. Tr. 668. He described reading, helping friends with computers, enjoying video games, and socializing with others. Tr. 600, 638, 657, 668. Plaintiff's ability to engage in these activities undermines Plaintiff's testimony as to the degree of his fatigue, limited mental functioning, irritability, and difficulty with crowds. Accordingly, the ALJ did not err in discounting Plaintiff's subjective symptom testimony as inconsistent with Plaintiff's activities of daily living.
The Court notes, however, that contrary to the ALJ's assertion that Plaintiff was working in 2016, tr. 603 (notes concern regarding early morning appointments due to "work schedule" among other things), it does not appear that Plaintiff was working during this time, see tr. 169 (no recorded earnings after 2011). Rather, this appears to be a mistake in the medical record.
B. Treatment Record
An unexplained or inadequately explained, failure to seek treatment or follow a prescribed course of treatment can be a basis to discount a claimant's symptom testimony. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Conservative treatment and failure to seek out treatment can be "powerful evidence regarding the extent to which [a claimant] is in pain." Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). However, no adverse finding is warranted where a claimant has a good reason for failing to obtain treatment. See Orn, 495 F.3d at 638. Gaps in medical treatment can also support a decision to discount a claimant's subjective symptom testimony as long as failure to obtain treatment is not due to claimant's lack of funds or another "good reason[.]" Id. at 638; see also SSR 16-3p, 2016 WL 1119029, at *8-9 (Commissioner will not find an individual's symptoms inconsistent with a lack of treatment without considering possible reasons, including inability to pay for treatment). And a lack of psychiatric hospitalization does not mean that a claimant's treatment was conservative or that their psychiatric symptoms were not debilitating. Gia M. P. v. Comm'r, Soc. Sec. Admin., No. 6:17-cv-01825-MA, 2018 WL 4031606, at *6 (D. Or. Aug. 23, 2018) ("As other courts have recognized, a claimant does not have to undergo inpatient hospitalization to be disabled." (quotation marks and brackets omitted)).
The ALJ rejected Plaintiff's testimony as unsupported by the treatment record. Tr. 26. Specifically, The ALJ found that the "treatment notes contain only intermittent complaints of mental symptoms" and there are "few objective findings indicative of significant functional restrictions prior to his date last insured." Tr. 26. The ALJ asserted that counseling and medication controlled his mental symptoms. Tr. 26. The ALJ also noted that Plaintiff denied feeling suicidal on several occasions and found that treatment notes "recite that he did not follow up with mental health counseling consistently." Tr. 26.
While it was improper for the ALJ to reject Plaintiff's testimony because he was not suicidal on several occasions, the ALJ's remaining conclusions about the treatment record are supported by substantial evidence. There is no evidence that Plaintiff sought any mental health treatment between 2012 and 2015. While Plaintiff provided some justification for a few missed appointments—namely, that his sleep issues made it difficult to attend early morning appointments—there is no reason in the record for Plaintiff's lack of mental health treatment for two years during the relevant period. Compare tr. 603-04 (reports inability to make morning appointments due to sleep issues) with tr. 720-59 (no mental health appointments between December 2012 and January 2015). Plaintiff also reported that his sleep and other symptoms were improved with medications. Tr. 601 (med "kicks ass . . . getting a solid night sleep") 609 (incredible sleep, less depressed and irritable), 614 (mood great on bupropion). And Plaintiff's treatment notes contain only intermittent complaints of symptoms with few functional limitations prior to Plaintiff's date last insured. See, e.g., tr. 597 (satisfied with sleep and mood stability) 657-59 (notes anhedonia but improved sleep, socializing, and enjoying video games), 668 (sleep poor and fatigued but involved in a number of activities, getting along well with all but one roommate, and enjoying video games and reading). Because these reasons are clear, convincing, and supported by substantial evidence, the ALJ did not err in rejecting Plaintiff's subjective symptom testimony as to his mental impairments.
II. Failure to Develop the Record
Plaintiff contends that the ALJ erred by failing to fulfill his independent duty to develop the record. In Social Security cases, "the ALJ has 'a special duty to fully and fairly develop the record and assure that the claimant's interests are considered.'" Widmark v. Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2006) (citing Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). This duty extends to both the represented and the unrepresented claimant. Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). However, the duty to develop the record is only triggered where "there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of evidence." Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). An ALJ that substantially relies on medical expert opinions yet dismisses those expert's equivocations and concerns over the lack of a complete record may fail his independent duty to develop the record. Tonapetyan v. Halter, 242 F.3d 1144, 1150-51 (9th Cir. 2001).
The ALJ failed to fully develop the record. As the ALJ notes in his opinion, there are "no opinions to review under the agency's regulations from the state agency doctors regarding the claimant's functional capacity." Tr. 26. Indeed, the state agency physicians were unable to evaluate Plaintiff's functional capacity prior to his date last insured because there was "insufficient evidence" at the time of their evaluations. Tr. 26, 83, 91. And there appear to be no other medical opinions considered by the ALJ. See tr. 26-27. Without this evidence, the ALJ's RFC assessment was made in error: "[T]he ALJ [cannot] rely solely on his interpretation of the medical records in assessing Plaintiff's . . . RFC." Patricia C. v. Saul, No. 19-CV-00636-JM-JLB, 2020 WL 4596757, at *22 (S.D. Cal. Aug. 11, 2020), report and recommendation adopted sub nom. Craig v. Saul, No. 19CV636 JM (JLB), 2020 WL 5423887 (S.D. Cal. Sept. 10, 2020); see also Duarte v. Saul, No. 2:19-CV-01019 AC, 2020 WL 5257597, at *5 (E.D. Cal. Sept. 3, 2020) (finding that where "there was no opinion evidence from any treating or examining physician[,] the record was incomplete."); Cortez v. Colvin, No. 1:15-CV-00102-EPG, 2016 WL 3541450, at *6 (E.D. Cal. June 24, 2016) (remanding where the ALJ "improperly interpreted the treating records that were available and made a RFC determination based on that raw medical data"). As the record was inadequate for the ALJ to properly evaluate the evidence, the ALJ failed to fully develop the record.
Even if it were proper for the ALJ to ascertain Plaintiff's functional limitations from the medical record without the aid of a medical opinion, it is unclear from the ALJ's decision what medical evidence supports the RFC. As the Commissioner points out, there are VA examinations in the record concluding that Plaintiff has moderate social, occupational, and emotional limitations. Def. Br. 7-8. The Commissioner then goes on to assert that these limitations were included in the ALJ's findings. Id. But the ALJ makes no reference to the VA evaluations in support of his decision. Instead, the ALJ's step three and RFC determinations are followed solely by discussion of Plaintiff's subjective symptom testimony, which the ALJ then largely discounts as described in Part I above. See tr. 22-27. Thus, the ALJ's decision was not supported by substantial evidence. On remand, the ALJ must develop the record by obtaining additional information from Plaintiff's physicians or calling a medical expert. See Tonapetyan, 242 F.3d at 1150 (finding the ALJ may "discharge this duty [to develop the record] in several ways, including: subpoenaing the claimant's physicians, submitting questions to the claimant's physicians, continuing the hearing, or keeping the record open after the hearing to allow supplementation of the record").
Plaintiff does not ask this Court to remand this case for payment of benefits, and the Court finds that a remand for additional proceedings is appropriate in this case.
CONCLUSION
Based on the foregoing, the Commissioner's decision is REVERSED and REMANDED for administrative proceedings.
IT IS SO ORDERED.
DATED: May 8, 2021.
/s/_________
MARCO A. HERNÁNDEZ
United States District Judge