Opinion
CV-21-00328-TUC-DCB (JR)
11-17-2022
Tina Pasqual, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable Jacqueline M. Rateau United States Magistrate Judge
Plaintiff Tina Marshelle Pasqual (“Pasqual”) brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision by the Commissioner of the Social Security Administration (“Commissioner”). The matter is ripe for review and was referred to the undersigned for report and recommendation. (Doc. 16, 22-24.) Based on the pleadings and the administrative record (“AR”), the Magistrate Judge recommends that the District Court, after its independent review, reverse the decision of the administrative law judge (“ALJ”) and remand the matter for a determination at steps three through five of the sequential evaluation process.
BACKGROUND
Procedural History
On November 6, 2019, Pasqual filed an application for disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 416(i), 423(d), alleging a disability onset date of January 1, 2017. (AR 160-161.) Pasqual's application was denied initially and on reconsideration. (AR 83-86, 90-93.) On Pasqual's request, a hearing was held before an ALJ. (AR 32-49.) The ALJ determined that Pasqual was not disabled in a decision dated December 16, 2020. (AR 15-26.) Pasqual's request for review by the Appeals Council was declined thus making the ALJ's decision final for judicial review. (AR 1-4.) See 42 U.S.C. §§ 405(g), 1383(c)(3).
The ALJ's Decision
At step one, the ALJ determined Pasqual had engaged in substantial gainful activity from her January 1, 2017 alleged onset date to October 2019. (AR 19-20.) Finding also that there had been a continuous 12-month period during which Pasqual did not engage in substantial gainful activity, the ALJ continued to step two of the five step sequential evaluation process. (AR 20.)
At step two, the ALJ found Pasqual has the medically determinable impairments of anxiety, depression, obsessive compulsive disorder (“OCD”), attention deficit/hyperactivity disorder (“ADHD”), degenerative disc disease, osteoarthritis, grave's disease/hypothyroidism, mild hearing loss, and epilepsy. (AR 20.) The ALJ determined that Pasqual does not have an impairment or combination of impairments that have significantly limited or are expected to limit her ability to perform basic work related activities for 12 consecutive months. Id. As a result, the ALJ concluded Pasqual has not been under a disability from the date of her adjusted alleged onset date through the date of decision. (AR 20-25.)
As discussed herein, the ALJ adjusted Pasqual's alleged onset date after finding that she had engaged in substantial gainful activity since her original alleged onset date.
Factual Background
Pasqual, born in 1963, was 56 years old on her initial alleged disability onset date and is a person of advanced age in the eyes of the administration. (AR 68.) She has past relevant work as a receptionist (sedentary, semiskilled), a medical assistant (light, skilled), and a home attendant (medium, semiskilled). (AR 47.) As mentioned above, Pasqual claimed a disability onset date of January 1, 2017. (AR 160-161.) However, because Pasqual worked as a home health care worker until October 1, 2019, the ALJ adjusted the alleged disability onset date accordingly. (AR 19-20, 36-37, 190-191, 199, 212, 287.)
As a result of the ALJ's adjustment of Pasqual's alleged disability onset date, this Court focuses on the relevant evidence of record dated after October 1, 2019.
Physical Conditions
On October 19, 2019, Pasqual sought treatment at urgent care for low back pain after lifting a heavy object. (AR 369.) A physical examination revealed she had tenderness and muscle spasm in her lumbosacral spine and that her range of motion was limited by pain in all planes. (AR 371.) Physician assistant Jonathan Stehn diagnosed Pasqual with low back pain radiating to her right leg and prescribed a Medrol dose pack for her sciatica and inflammation. (AR 372.)
An emergency room visit on June 8, 2020 recorded Pasqual as “presenting for chest pain that has been intermittent since yesterday lasting approximately an hour.” (AR 498, 501.) Pasqual reported that she was “cleaning up the chicken cage when the chest pain started again.” (AR 504.) Her blood pressure was elevated, she appeared uncomfortable and she described the pressure as an 8/10. (AR 501, 504.) She was discharged in stable condition with medications and educational materials on peptic ulcer disease. (AR 503.)
A July 1, 2020 MRI scan of Pasqual's lumbar spine revealed mild degenerative changes in the lumbar spine without significant central canal compromise, and bilateral foraminal narrowing at ¶ 11-12 likely due to facet degeneration. (AR 571-572.) At an August 4, 2020 office visit, rheumatologist Sabina Mian, M.D., found Pasqual to have a full range of motion in her neck, shoulders, elbows, hips, knees, ankle, and spine, a non-antalgic gait and that she did not require an assistive device. (AR 540.) Dr. Mian diagnosed Pasqual with inflammatory arthritis and prescribed Prednisone. (AR 540-541.)
At a September 2, 2020 examination with Kendra Drake, M.D., for a follow up regarding Pasqual's epilepsy and sciatica, a physical examination showed Pasqual had a normal gait, and normal muscle strength in all four extremities, but was limited by pain in her right extremity. (AR 532.) Dr. Drake diagnosed Pasqual with obesity and recommended, inter alia, that she exercise for 30 minutes five times per week. (AR 533.)
Mental Conditions
At a November 15, 2019 visit with Derek Paul, M.D., for anxiety, depression, OCD and ADHD, Pasqual is recorded as reporting that “things have to be done perfect.” (AR 440.) Pasqual reported having a rigid process of “locking doors and checking” and that she could wash her hands “at least 30-40 times.” Id. She reported difficulty concentrating, and that her depression “hasn't been really bad lately.” (AR 441.) She reported “a lot of anxiety” related to her daughter and brother. Id.
At a December 6, 2019 follow up visit with Dr. Paul, Pasqual denied any current depression, anhedonia, and hopelessness. (AR 436.) She stated she was “not as anxious” lately and that her ADHD was “alright” but that she had some difficulty focusing. Id. She reported taking 30 minutes to clean the toilet because she is a perfectionist. Id.
At a January 10, 2020 behavioral health visit with Lauryn Shannon, MA, LPC, NCC (“MA Shannon”), Pasqual is recorded as reporting being very worried about her daughter who is a heroin addict that she (Pasqual) has been trying to “get into rehab.” (AR 496.) Pasqual is terrified that her daughter will overdose. Id. The record notes that Pasqual is “still concerned about her stalker” who “has been coming more often” so she increased security measures around her house. Id. The record notes, “Her old coping skills have not been effective and she has been feeling more worthless. She believes this is the result of not working and not being able to get her daughter into rehab.” Id.
At a January 24, 2020 behavioral health visit with MA Shannon, Pasqual is recorded as reporting that she has had a “busy and stressful couple of weeks.” (AR 494.) Pasqual is recorded as being “such a nurturing spirit” and “she notice[s] she feels less depressed when she has something or someone to take care of.” Id. She is recorded as having a “huge emotional release” at the visit. Id.
At a February 7, 2020 behavioral health visit with MA Shannon, Pasqual is recorded as reporting that she has been feeling little motivation over the last week. (AR 492.) She reported not doing her meditation or yoga causing her back to be tight. Id. She is recorded as “still taking care of her animals, taking her pills, and bathing, but she feels overwhelmed by anything else.” Id. She reported being concerned about her daughter and her brother. Id.
At a February 21, 2020 behavioral health visit with MA Shannon, Pasqual is recorded as reporting that she was “very tired” and that “not feeling well and sleeping too much [are] the main causes o[f] her tiredness.” (AR 490.)
At a March 20, 2020 visit with MA Shannon, Pasqual is recorded as reporting that she has been in a lot of pain. (AR 488.) She is recorded as reporting that her back is very sore and the pain has been impacting her sleep. Id. She reported an increase in OCD and ADHD symptoms such as “taking an hour to clean the toilet” and “need[ing] to finish her oatmeal perfectly.” Id.
At an April 17, 2020 visit with MA Shannon, Pasqual is recorded as “feeling really bad.” (AR 486.) She reported that she has been in intense pain, unable to sleep and unable to “get around more than her basic daily tasks.” Id. She also reported that she is unable to perform yoga that usually helps with her pain “because she is so nauseas from the pain and its (sic) so just so bad.” Id. The session terminated early as a result of Pasqual's inability to continue. Id.
Hearing Testimony
Pasqual testified that she lives alone and her daughter-in-law helps her bathe and dress about three days per week. (AR 38-39.) She tries to do yoga to maintain her ability to move. (AR 39.) She endorsed difficulty sleeping. (AR 40.) She claims she can walk or stand for about five minutes at a time, sit for about 15 minutes, and lift approximately 10 pounds. (AR 41.) She is more comfortable sitting or lying down. (AR 41.) She testified to being in “all the pain and agony” and that is all that she can concentrate on. (AR 42.) When asked how her mental health issues such as her depression and anxiety prevent her from working, Pasqual testified, “I just have no desire to do anything . . . It's just pain all the time, and so it's a mental draw on my brain.” (AR 42-43.)
STANDARD OF REVIEW
A claimant is "disabled" for the purpose of receiving benefits if she is unable to engage in any substantial gainful activity due to an impairment which has lasted, or is expected to last, for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a). The Commissioner employs a five-step sequential process to evaluate DIB claims. 20 C.F.R. § 404.1520; see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To establish disability the claimant bears the burden of showing (1) she is not working; (2) she has a severe physical or mental impairment; (3) the impairment meets or equals the requirements of a listed impairment; and (4) her residual functional capacity (”RFC”) precludes her from performing her past work. 20 C.F.R. § 404.1520(a)(4). At step five, the burden shifts to the Commissioner to show that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant “disabled” or “not disabled” at any point in the five-step process, the ALJ does not proceed to the next step. 20 C.F.R. § 404.1520(a)(4).
“The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to deny benefits only “when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is so 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, 981 F.2d at 1019 (quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner's decision, however, “cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence that supports as well as detracts from the Commissioner's conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).
ISSUES ON REVIEW
Pasqual raises two issues. (Doc. 22 at 2.) First, Pasqual argues that the ALJ's nonseverity determination at step two is not supported by substantial evidence. Id. Second, Pasqual claims that the ALJ failed to articular clear and convincing reasons supported by substantial evidence for discounting her symptom testimony. Id.
As more fully explained below, this Court finds that the ALJ's step two non-severity determination is not supported by substantial evidence but that the ALJ articulated clear and convincing reasons supported by substantial evidence in discounting Pasqual's symptom testimony. This Court also finds that the ALJ's error at step two is harmful error. Accordingly, it is recommended that the District Court reverse the ALJ's decision and remand the matter for a determination at steps three through five of the sequential evaluation process.
DISCUSSION
Step Two Determination
“An impairment or combination of impairments may be found ‘not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work.'” Webb v. Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005) (quoting Smolen, 80 F.3d at 1290). “If an adjudicator is unable to determine clearly the effect of an impairment or combination of impairments on the individual's ability to do basic work activities, the sequential evaluation should not end with the not severe evaluation step.” Webb, 433 F.3d at 687 (quoting S.S.R. No. 85-28 (1985)). “Step two, then, is a ‘de minimus screening device [used] to dispose of groundless claims,' Smolen, 80 F.3d at 1290, and 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, 433 F.3d at 687 (quoting S.S.R. 85-28).
Pasqual argues the ALJ erred in finding that her impairments are not severe. (Doc. 22 at 6; Doc. 24 at 2.) She points out that she testified “that a combination of her impairments, particularly musculoskeletal impairments as well as inflammatory process, cause significant pain that substantially interfere (sic) with her daily activities and render her virtually immobile unless she performs yoga exercises.” (Doc. 22 at 6.) She also points out that she testified that “her physical pain informs her mental conditions, interfering with her concentration and motivation.” Id. She argues that while some objective evidence in the record “points to only mild limitations, [other] evidence otherwise suggests more than a minimal limitation to perform work-related functions such as distraction from OCD symptoms and difficulty focusing or staying on topic.” (Doc. 24 at 3-4.)
Pasqual urgers that the ALJ erred in failing to consider the directive of 20 C.F.R. § 404.1520a(d)(1) that provides, “[i]f we rate the degree of your limitation as ‘none' or ‘mild,' we will generally conclude that your impairment(s) is not severe, unless the evidence otherwise indicates that there is more than a minimal limitation in your ability to do basic work activities.” (Doc. 24 at 3, quoting 20 C.F.R. § 404.1520a(d)(1) (emphasis in brief)). Pasqual insists that there is evidence that otherwise indicates that she has a more than minimal limitation in her ability to do basic work activities. (Doc. 24 at 3.) She also argues that the ALJ's analysis is erroneous contending that 20 C.F.R. § 404.1520a(c)(1) requires the ALJ to “look beyond mere objective signs to consider the effects of subjective symptoms and how they may be affected by chronic illness and/or various treatment modalities” which, according to Pasqual, the ALJ did not do. Id.
The Commissioner does not squarely address Pasqual's argument. Instead the Commissioner reiterates some findings contained in medical records generated before the adjusted disability onset date of October 1, 2019 and reiterates the ALJ's mental status findings. (Doc. 23 at 5-10.)
Because the crux of Pasqual's argument is that the ALJ failed to consider how her alleged physical pain “informs her mental conditions,” this Court focuses on the ALJ's determination that Pasqual was not more than mildly limited in the four broad areas of mental functioning. As explained below, because the severity determination at step two is a de minimus screening device and because this Court finds that the ALJ failed to support her determination that Pasqual was no more than mildly limited in the four broad areas of mental functioning with substantial evidence, this Court determines that the ALJ's step two non-severity determination is erroneous.
(Doc. 22 at 6.)
Understanding, Remembering and Applying Information
The ALJ determined Pasqual is mildly limited in her ability to understand, remember and apply information. (AR 24.) In reaching this determination, the ALJ relied on a January 10, 2020 behavior health visit wherein Pasqual is recorded as “trying to get her daughter into rehab.” (AR 496.) The ALJ also relied on Pasqual's September 2, 2020 follow up visit record that indicated, inter alia, “Memory and language functions were normal.” (AR 532.)
The ALJ misconstrues the January 10, 2020 behavior health visit note. In her decision, the ALJ stated, “She reported she was taking on the role of researching and assisting in finding rehabilitation services for her daughter.” (AR 24.) However, the medical record reads, “She has been trying to her ger daughter into rehab but there is a 4 week waiting period for the Haven.” The record does not reference “researching” rehabilitation services.
Since the January 10, 2020 behavioral health record does not support the ALJ's finding that Plaintiff is mildly limited in her ability to understand, remember and apply information, that leaves the September 2, 2020 follow up visit record as support for this finding. A review of that record fails to establish that Pasqual was administered a diagnostic exam to rate her memory function. From the record, it is unclear on what basis the physician concluded that “[m]emory and language functions were normal.”
In light of the foregoing, this Court finds that the two cited medical records are insufficient to support the ALJ's determination that Pasqual is mildly limited in her ability to understand, remember and apply information.
Social Interaction
The ALJ's determination that Pasqual is mildly limited in her ability to interact socially with others is supported by reference to: (1) a January 25, 2019 primary care visit record (AR 379); (2) a January 30, 2019 primary care visit record (AR 383); an October 22, 2019 primary care visit record (AR 389); a December 6, 2019 behavioral health visit record (AR 438); an August 27, 2019 behavioral health visit record (AR 445); and a June 14, 2019 behavioral health visit record (AR 461). (AR 24.) As mentioned above, Plaintiff's adjusted alleged disability onset date is October 1, 2019. Two of the six medical records relied upon by the ALJ predate October 1, 2019. (AR 379, 383.)
This Court determines that the ALJ's reliance on medical records generated before the relevant time period is insufficient to support a finding that Pasqual is mildly limited in her ability to interact with others.
Concentration, Persistence and Pace
The ALJ supported her finding that Plaintiff is mildly limited in her ability to concentrate, persist and keep pace by finding that Pasqual reported that her OCD symptoms had improved since she stopped working. (AR 24.) The ALJ relies upon Exhibit 9F in support of this statement. Id. Exhibit 9F is a 47 page exhibit and this Court has been unable to locate the precise record that supports the ALJ's finding.
This Court notes that behavioral health visits in November and December 2019 record Pasqual as struggling with OCD symptoms and difficulty concentrating. (AR 440441, 436.) At her February 7, 2020 behavioral health visit, Pasqual is recorded as reporting that she has had little motivation over the last week and was not performing yoga or meditation due to feeling overwhelmed. (AR 492.) In mid-February 2020, Pasqual is recorded as reporting that she was “very tired” and that “not feeling well and sleeping too much [are] the main causes o[f] her tiredness.” (AR 490.) At her March 2020 visit, Pasqual is recorded as being in a lot of pain and having an increase in her OCD and ADHD symptoms. (AR 488.) In April 2020, Pasqual is recorded as “feeling really bad[,]” and having intense pain and nausea as a result of her pain. (AR 486.) This session was terminated early as a result of Pasqual's inability to continue. Id.
As demonstrated by the medical records summarized above, Plaintiff's behavior health records indicate that her ability to concentrate deteriorated from December 2019 to April 2020 thereby suggesting that she is more than mildly limited in her ability to concentrate. In light of the foregoing, this Court finds that the ALJ's determination that Plaintiff is mildly limited in her ability to concentrate, persist or maintain pace is not supported by substantial evidence.
Adapt and Manage Oneself
In determining that Pasqual is only mildly limited in her ability to adapt and manage herself, the ALJ relied upon the medical record from Pasqual's September 2, 2020 follow up examination and determined that her “physical examinations were fairly benign.” (AR 24.) The ALJ stated, “For example, in September 2020, Western Neurosurgery examiner found normal strength in all extremities, normal gait and no evidence of ataxia despite claimant's reports of significant pain.” Id. However, the ALJ omitted from her summary of this September 2, 2020 medical record a reference to a noted limitation as a result of pain. The cited medical record also reads, “Muscle strength was normal in all four extremities proximally and distally but limited by pain in the right lower extremity.” (AR 532.)
In light of the ALJ's omission of a noted limitation in the medical record that the ALJ relied upon, this Court determines the ALJ's determination that Pasqual is mildly limited in her ability to adapt and manage herself is not supported by substantial evidence.
Harmful Error
Having found error, this Court must determine whether the error is harmful. Harmless error has been described as whether “the ALJ's error did not materially impact [her] decision.” Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054-55 (9th Cir. 2006). See also Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006) (holding that an error is harmless if it was “inconsequential to the ultimate non[-]disability determination” (internal quotation marks omitted)).
(20 C.F.R. Pt. 404, Subpt. P, App. 2.)
This Court determines that the ALJ's erroneous non-severity determination at step two is not harmless. If the ALJ had rendered a severity finding at step two she would have been required to complete steps three through five of the five step sequential evaluation process. In completing steps three through five, the ALJ would have been required to formulate Pasqual's RFC. In formulating an RFC, an ALJ is required to consider all of a claimant's medically determinable impairments, even those that are not severe. See 20 C.F.R. 404.1545(a)(2) (“We will consider all of your medically determinable impairments of which we are aware, including your medically determinable impairments that are not “severe,” as explained in §§ 404.1520(c), 404.1521, and 404.1523, when we assess your residual functional capacity.”). As pointed out by Pasqual and not disputed by the Commissioner, if Pasqual's RFC is light and her non-exertional limitations eliminate her past relevant work, Medical-Vocation Rule 202.064 requires a finding of disability. (Doc. 24 at 3.)
In light of the foregoing, this Court determines that the ALJ's non-severity determination at step two is harmful error.
Credibility Determination
“An individual's statement as to pain or other symptoms shall not alone be conclusive evidence of disability.” 42 U.S.C. § 423(d)(5)(A). A claimant's allegations “will not alone establish that [she is] disabled” and supporting medical evidence is required to demonstrate disability. 20 C.F.R. § 416.929(a). When evaluating the credibility of a claimant's subjective pain complaints and symptoms, an ALJ engages in a two-step process. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009).
At step one, an ALJ is required to determine whether the claimant has “presented objective medical evidence which could reasonably be expected to produce the pain or other symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). If the claimant has satisfied step one and there is no evidence of malingering, then the ALJ is permitted to reject a claimant's testimony about her severity of symptoms only if the ALJ gives “specific, clear and convincing reasons.” Id. “The ALJ must consider a claimant's work record, observations of medical providers and third parties with knowledge of claimant limitations, aggravating factors, functional restrictions caused by symptoms, effects of medication, and the claimant's daily activities.” Knorr v. Berryhill, 254 F.Supp.3d 1196 1214 (C.D. Cal. 2017) (citing Smolen, 80 F.3d at 1283-84 & n.8).
The ALJ may also consider inconsistencies in a claimant's statements or between her statements and her conduct. Knorr, 254 F.Supp.3d at 1124 (citing Smolen, 80 F.3d at 1284; Thomas, 278 F.3d at 958-59). This Court need not uphold all of an ALJ's reasons for discrediting a claimant, so long as substantial evidence supports the ALJ's decision. Batson, 359 F.3d at 1197.
Here, the ALJ stated:
The claimant noted in her disability report: My back pain is excruciating and my hyperthyroidism makes for embarrassing accidents, IBS keeps me in the restroom a lot, fear of having seizures at work. [H]eels hurt to (sic) bad. Can't remember things. Severe panic attacks very anxious blood pressure gets to (sic) high when at work can't focus or concentrate is concerning cause (sic)
I don't want to make mistakes caring for patients. (EX 2E). The claimant testified that she has assistance in self[-]care three times per week. She also does not perform household chores. She stated that she watches television for several hours a day and uses the computer about an hour a day. Claimant stated she does yoga three time per week, about 10 minutes at a time. She stated she was scared to drive due to her epilepsy and fecal incontinence and has not driven for about 8 months. The undersigned finds that her testimony concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent for the reasons explained in this decision.(AR 21.) As more fully set forth below, this Court finds that while Pasqual disagrees with the ALJ's rejection of her symptom testimony the ALJ provided adequately specific, clear and convincing reasons for rejecting her symptom testimony.
Regarding Pasqual's musculoskeletal complaints, the ALJ noted that on October 19, 2019, Pasqual was treated for acute symptoms of right side back pain after lifting a heavy object. (AR 22.) Pasqual's examination confirmed tenderness, muscle spasms and reduced range of motion. Id. She was diagnosed with sciatica and inflammation and was given a Medrol dose pack. Id. A July 2020 MRI confirmed mild degenerative changes in the lumbar spine without significant central canal compromise and showed dorsal cord contouring and bilateral foraminal narrowing likely due to facet degeneration with advanced ligamentum flavum hypertrophy at ¶ 11-12. (AR 22, citing AR 571-572.) In an August 2020 examination conducted by rheumatologist Dr. Mian, Dr. Mian opined that Pasqual was suffering from inflammatory arthritis although two radiology studies were interpreted as showing no signs of inflammatory arthritis. (AR 22, citing 540, 544, 546.) During a September 2020 follow up examination with Dr. Drake, Dr. Drake recorded, inter alia, “[m]uscle strength was normal in all four extremities proximally and distally but limited by pain in the right lower extremity.” (AR 22, citing AR 532.)
In her brief, Pasqual reiterates the medical records relied upon by the ALJ and offers that her mental health records corroborate her “frequent reports of debilitating pain.” (Doc. 22 at 8-9, citing AR 437, 443, 486, 492, 486.) Regarding her inflammatory arthritis, Pasqual urges that the ALJ overlooked blood test results showing “positive anti-DNA AB . . . which is a common diagnostic indicator of SLE or other rheumatological diseases.” (Doc. 22 at 9.)
However, as pointed out by the Commissioner, it was reasonable for the ALJ to find Pasqual's relatively normal physical examination findings inconsistent with disabling limitations. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (holding that lack of supportive medical evidence is a factor that an ALJ can consider in a credibility analysis). Thus, while Pasqual criticizes the ALJ for rejecting her statements concerning the intensity, persistence, and limiting effects of her pain, the ALJ is entitled to consider a lack of supportive medical evidence as one factor in her credibility analysis. Additionally, as explained below, this is not the only factor that the ALJ relied upon in reducing Pasqual's credibility.
The ALJ also noted Pasqual's ability to work after her initial alleged onset date. For instance, Pasqual alleged disability beginning January 1, 2017 but she continued to work for two years after this initial alleged onset date. (AR 19, 25.) “Evidence of work after the onset date is relevant to a claimant's credibility.” Deiman v. Colvin, No. CV-15-00161-PHX-DLR, 2016 WL 1658603, at *3 (D. Ariz. Apr. 27, 2016) (quoting Defrees v. Colvin, No. CV-15-00339-PHX-DGC, 2015 WL 5675282, at *5 (D. Ariz. Sept. 28, 2015)); see also Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (evidence that claimant performed work “under the table” after the date of last insured is a clear and convincing reason for discrediting claimant testimony). The ALJ's reliance on Pasqual's ability to work after her alleged onset date is a clear and convincing reason for discrediting her symptom testimony.
The ALJ also noted that Pasqual received unemployment compensation benefits in the third quarter of2020 and stated “the claimant's receipt of unemployment compensation during the alleged disability period . . . is but one [fact] to consider in the totality of the circumstances.” (AR 20.) It is true, that the receipt of unemployment benefits may undermine a claimant's alleged inability to work full time. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (citing Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir. 1988)). This is because unemployment benefit applications sometimes require that a claimant hold himself out as available for full-time work. Copeland, 861 F.2d at 542.
Here, however, Pasqual's unemployment benefits application is not in the record. Therefore, the record does not establish whether Pasqual held herself out as available for full-time or part-time work. Because this Court cannot determine whether Pasqual made an assertion regarding her availability for full-time work, this Court finds that her receipt of unemployment benefits does not constitute a legally sufficient reason for discrediting her credibility. See Carmickle, 533 F.3d at 1162 (recognizing that receipt of unemployment benefits is only inconsistent with a claimant's disability allegations when a claimant holds himself out as available for full-time work (as opposed to part-time work) in the unemployment benefits application).
In sum, this Court finds that the ALJ provided two separate clear and convincing reasons for discounting Pasqual's credibility. Accordingly, this Court finds no error in the ALJ's credibility determination.
Remand is Recommended
As mentioned above, this Court finds the ALJ committed harmful error at step two. Upon finding the ALJ committed reversible error, the District Court has the discretion to remand or reverse and award benefits. Mack v. Saul, No. 1:18-cv-01287-DAD-BAM, 2020 WL 2731032, at *3 (E.D. Cal. May 25, 2020) (citing McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989)). The Ninth Circuit Court of Appeals has held that, “[g]enerally, we direct the award of benefits in cases where no useful purpose would be served by further administrative proceedings, or where the record has been thoroughly developed.” Mack, 2020 WL 2731032, at *3 (quoting Ghokassian v. Shalala, 41 F.3d 1300, 1304 (9th Cir. 1994)). “Where . . . an ALJ makes a legal error, but the record is uncertain and ambiguous, the proper approach is to remand the case to the agency.” Treichler v. Comm 'r of Social Sec. Admin., 775 F.3d 1090, 1105 (9th Cir. 2014); see also Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014).
This Court finds that the record is not fully developed because the ALJ failed to decide steps three through five of the sequential evaluation process. Accordingly, remand for further development of the record is recommended.
RECOMMENDATION
It is recommended that the District Court, after its independent review, reverse the decision of the ALJ and remand to the Commissioner for further development of the record. Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the District Court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: 4:21-cv-328-DCB.