Reichsfeld v. Commissioner of Social Security Administration

Filing 22

ORDER - IT IS ORDERED that the ALJ decision is VACATED and the case is REMANDED for further proceedings consistent with this Order. IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment accordingly. See document for complete details. Signed by Senior Judge James A Teilborg on 04/26/2021. (MHW)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Shelby Reichsfeld,

No. CV-20-01067-PHX-JAT

Plaintiff,

10
11

v.

12

Commissioner
Administration,

ORDER

13

of

Social

Security

Defendant.

14
15

Pending before the Court is Plaintiff Shelby Reichsfeld’s appeal from the

16

Commissioner’s denial of her application for Social Security Disability Insurance (“SSDI”)

17

and Supplemental Security Income (“SSI”) benefits under 42 U.S.C. §§ 401–434, 1381–

18

1383f. (Doc. 1). The appeal is fully briefed. (Docs. 17, 20, 21). The Court now rules.

19

I.

BACKGROUND

20

Plaintiff is 29 years old, completed high school, and has past relevant work

21

experience as an office assistant. (Doc. 17 at 2). Plaintiff argued that the following

22

conditions rendered her disabled: “degenerative disc disease, tremors, asthma, headaches,

23

common variable hypogammaglobinemia, and obesity.” (Doc. 14-3 at 24). Plaintiff has not

24

engaged in substantial gainful activity since March 2, 2010, the alleged onset date. (Id.).

25

Plaintiff filed applications for SSDI and SSI benefits in February and September of

26

2016, respectively. (Docs. 17 at 2; 14-3 at 21). Those applications were denied at the initial

27

stage, (Doc. 14-3 at 21), upon reconsideration, (Id.), and by the Administrative Law Judge

28

(“ALJ”) after a hearing, (Docs. 17 at 2; 14-3 at 21–32). The Appeals Council denied

1

review. (Doc. 14-3 at 2–4). Plaintiff then sought review in this Court. (Doc. 1).

2

a.

The Disability Determination

3

A claimant must show she “is under a disability” to qualify for disability insurance

4

benefits. 42 U.S.C. § 423(a)(1)(E). The claimant is disabled if she suffers from a medically

5

determinable physical or mental impairment that prevents her from engaging in any

6

“substantial gainful activity.” Id. § 423(d)(1)–(2). The Social Security Administration has

7

created a five-step process for an ALJ to determine whether the claimant is disabled. 20

8

C.F.R. § 404.1420(a)(1). Each step can be dispositive. See id. § 404.1420(a)(4). “The

9

burden of proof is on the claimant at steps one through four,” and the burden shifts to the

10

Commissioner at step five. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222

11

(9th Cir. 2009).

12

At step one, the ALJ examines whether the claimant is “doing substantial gainful

13

activity.” 20 C.F.R. § 404.1520(a)(4)(i). If not, then the ALJ proceeds to step two. At step

14

two, the ALJ considers whether the claimant has a physical or mental impairment or a

15

combination of impairments that are “severe.” Id. § 404.1520(a)(4)(ii). If the ALJ finds

16

that there is severe impairment, then the ALJ proceeds to step three to determine whether

17

the claimant’s impairment or combination of impairments meets or medically equals an

18

impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. Id.

19

§ 404.1520(a)(4)(iii). If so, the claimant is disabled. Id. If not, the ALJ must assess the

20

claimant’s “residual functional capacity” (“RFC”) before proceeding to step four. Id.

21

§ 404.1520(a)(4). The RFC is the most a claimant “can still do despite [her] limitations.”

22

Id. § 404.1545(a)(1). At step four, the ALJ determines whether the claimant can still do

23

“past relevant work” in light of the claimant’s RFC. Id. § 404.1520(a)(4)(iv). If not, the

24

ALJ proceeds to the final step and examines whether the claimant “can make an adjustment

25

to other work” considering the claimant’s RFC, age, education, and work experience. Id.

26

§ 404.1520(a)(4)(v). If an adjustment can be made, the claimant is not disabled. Id.

27

b.

28

The ALJ denied Plaintiff social security benefits because she determined that

The ALJ’s Decision

-2-

1

Plaintiff was “not disabled” and was “capable of making a successful adjustment to other

2

work that exists in significant numbers in the national economy.” (Doc. 14-3 at 32). After

3

finding that Plaintiff was not engaged in substantial gainful activity since March 2, 2010

4

at step one, the ALJ determined, at step two, that Plaintiff “has the following severe

5

impairments: degenerative disc disease, tremors, asthma, headaches, common variable

6

hypogammaglobinemia, and obesity.” (Id. at 24–26).

7

At step three, the ALJ concluded that Plaintiff’s impairments, singularly or in

8

combination, did not “meet[] or medically equal[] the severity of one of the listed

9

impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525

10

and 404.1526).” (Id. at 26). Accordingly, the ALJ conducted an RFC analysis and found

11

that Plaintiff could perform “sedentary work.” (Id. at 26–30). In doing so, the ALJ gave

12

“substantial weight” to the opinions of Doctors Bargan, Johnson, Hirsch, and McLean. (Id.

13

at 29). The ALJ further gave “limited weight” to the opinion of Doctor Solomon, and little

14

weight to the opinions of Doctor Wechsler and Nurse Practitioner (“NP”) Dundon. (Id. at

15

30).

16

At step four, the ALJ determined that Plaintiff had no past relevant work. (Id. at 30–

17

31). At step five, the ALJ concluded that Plaintiff could perform the occupations of

18

document preparer (DOT 249.587-018), call out operator (DOT 237.367-014), and

19

addresser (DOT 209.587-010), consistent with the vocational expert’s testimony. (Id. at

20

31–32). Thus, the ALJ determined that Plaintiff had not been under a disability from March

21

2, 2010 through the date of the ALJ’s decision. (Id. at 32).

22

II.

LEGAL STANDARD

23

The ALJ’s decision to deny disability benefits may be overturned “only when the

24

ALJ’s findings are based on legal error or not supported by substantial evidence in the

25

record.” Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003).

26

“‘Substantial evidence’ means more than a mere scintilla, but less than a preponderance,

27

i.e., such relevant evidence as a reasonable mind might accept as adequate to support a

28

conclusion.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citing Young

-3-

1

v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)).

2

“The inquiry here is whether the record, read as a whole, yields such evidence as

3

would allow a reasonable mind to accept the conclusions reached by the ALJ.” Gallant v.

4

Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation omitted). “Where evidence is

5

susceptible of more than one rational interpretation, it is the ALJ’s conclusion which must

6

be upheld; and in reaching his findings, the ALJ is entitled to draw inferences logically

7

flowing from the evidence.” Id. (citations omitted); see Batson v. Comm’r of Soc. Sec.

8

Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This is because “[t]he trier of fact and not

9

the reviewing court must resolve conflicts in the evidence, and if the evidence can support

10

either outcome, the court may not substitute its judgment for that of the ALJ.” Matney v.

11

Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); see Benton, 331 F.3d at 1035 (“If the

12

evidence can support either outcome, the Commissioner’s decision must be upheld.”).

13

The ALJ is responsible for resolving conflicts in medical testimony, determining

14

credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th

15

Cir. 1995). Thus, if on the whole record before the Court, substantial evidence supports the

16

ALJ’s decision, the Court must affirm it. See Hammock v. Bowen, 879 F.2d 498, 501 (9th

17

Cir. 1989); see also 42 U.S.C. § 405(g). On the other hand, the Court “may not affirm

18

simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d

19

625, 630 (9th Cir. 2007) (quotation omitted). The Court is not charged with reviewing the

20

evidence and making its own judgment as to whether Plaintiff is or is not disabled. See

21

Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). Rather, the Court’s inquiry is

22

constrained to the reasons asserted by the ALJ and the evidence relied upon in support of

23

those reasons. See id.

24

III.

ANALYSIS

25

Here, Plaintiff alleges that the ALJ erred in assigning little weight to the opinions

26

of Dr. Wechsler and NP Dundon without providing specific and legitimate reasons for

27

doing so. (Doc. 17 at 10–13). Plaintiff also argues that the ALJ erred in rejecting Plaintiff’s

28

symptom testimony and in rejecting lay witness testimony. (Id. at 13–19). The

-4-

1

Commissioner agrees that the ALJ erred in assigning little weight to the opinions of Dr.

2

Wechsler and NP Dundon, and he requests that the Court remand this matter to the agency

3

for further proceedings. (Doc. 20 at 3). Plaintiff asserts that the appropriate action here is

4

for the Court to remand for an immediate award of benefits. (Doc. 17 at 20–21).

5

a.

The Opinions of Dr. Wechsler and NP Dundon

6

The Court agrees with the parties that the ALJ erred in assigning little weight to the

7

opinions of Dr. Wechsler and NP Dundon without providing specific and legitimate

8

reasons for doing so. The ALJ stated that she gave little weight to the opinions of Dr.

9

Wechsler and NP Dundon because “opinions that an individual is disabled and other issues

10

reserved to the Commissioner are not medical opinions,” the opinions “merely concluded

11

disability or inability to work without explanations,” and Plaintiff ‘s daily activities indicate

12

“that [Plaintiff’s] asthma/allergies are not as severe as opined.” (Doc. 14-3 at 30).

13

As the Commissioner notes, however, Dr. Wechsler and NP Dundon opined on

14

more than whether Plaintiff was disabled and discussed Plaintiff’s inability to leave her

15

home, need for a walker and bilateral stair rails due to balance issues, illness and

16

hospitalizations, and meningitis-related symptoms. (Docs. 20 at 4; 14-10 at 178; 14-11 at

17

4; 14-20 at 30; 14-21 at 107). Further, while Plaintiff’s daily activities may indicate that

18

Plaintiff’s asthma and allergies are not as severe as stated, Dr. Wechsler and NP Dundon

19

based their medical opinions, in part, on Plaintiff’s meningitis-related symptoms, not just

20

her asthma or allergies. (Id.). Thus, the ALJ’s assigning little weight to the opinions of Dr.

21

Wechsler and NP Dundon was not supported by substantial evidence, so the Court will

22

vacate the ALJ’s decision on this ground.

23

b.

Plaintiff’s Symptom Testimony

24

Plaintiff further argues that the ALJ improperly rejected Plaintiff’s symptom

25

testimony. (Doc 17 at 13–17). The ALJ determined that Plaintiff’s “medically determinable

26

impairments could reasonably be expected to cause the alleged symptoms; however,

27

[Plaintiff’s] statements concerning the intensity, persistence and limiting effects of these

28

symptoms are not entirely consistent with the medical evidence and other evidence in the

-5-

1
2

record.” (Doc. 14-3 at 27).
1.

Legal Standard

3

The Ninth Circuit has established a two-step analysis for an ALJ to determine

4

whether to credit a Plaintiff’s subjective symptom testimony. “First, the ALJ must

5

determine whether the Plaintiff has presented objective medical evidence of an underlying

6

impairment which could reasonably be expected to produce the pain or other symptoms

7

alleged.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017) (quoting Garrison v.

8

Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014)). If the Plaintiff presents such evidence, the

9

ALJ then evaluates the Plaintiff’s subjective complaints. See id. “In evaluating the

10

credibility of pain testimony after a Plaintiff produces objective medical evidence of an

11

underlying impairment, an ALJ may not reject a Plaintiff’s subjective complaints based

12

solely on a lack of medical evidence to fully corroborate the alleged severity of pain.”

13

Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). Instead, an ALJ must provide

14

“specific, clear, and convincing reasons” for doing so. Burrell v. Colvin, 775 F.3d 1133,

15

1138 (9th Cir. 2014).

16

In rendering a credibility determination, the ALJ may consider several factors,

17

including: “(1) ordinary techniques of credibility evaluation, such as the Plaintiff’s

18

reputation for lying, prior inconsistent statements concerning the symptoms, and other

19

testimony by the Plaintiff that appears less than candid; (2) unexplained or inadequately

20

explained failure to seek treatment or to follow a prescribed course of treatment; and (3)

21

the Plaintiff’s daily activities.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)

22

(quoting Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996)). If the ALJ relies on these

23

factors and her reliance is supported by substantial evidence, the Court “may not engage in

24

second guessing.” Id. (quoting Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002)).

25

2.

Discussion

26

The ALJ determined that the medical and other evidence conflicted with Plaintiff’s

27

symptom testimony. (Doc. 14-3 at 27). The ALJ found this conflicting evidence to be

28

Plaintiff’s improvement through treatment, the objective medical evidence, and Plaintiff’s

-6-

1
2

daily activities. (Id.).
A.

Treatment

3

The ALJ found that Plaintiff’s symptom testimony was not consistent with the

4

evidence of Plaintiff’s improvement through treatment. (Id. at 27–28). The ALJ cited

5

numerous examples to support her finding including Plaintiff doing well after her treatment

6

for meningitis related symptoms, (Docs. 14-3 at 27; 14-12 at 103; 14-15 at 188, 190, 192;

7

14-19 at 3, 5, 15, 17, 19, 29, 31, 34, 36, 44, 46, 52, 76, 85, 88; 14-20 at 58, 87, 89; 14-22

8

at 95), improvement in Plaintiff’s headaches through medication, (Docs. 14-3 at 28; 14-9

9

at 102; 14-22 at 40, 67, 88), management of Plaintiff’s asthma through medication, (Docs.

10

14-3 at 28; 14-11 at 33), and improvement in allergic reactions through the use of an EpiPen

11

and Benadryl, (Docs. 14-3 at 28; 14-9 at 56, 65).

12

Plaintiff does not contest the finding that her medical impairments improved

13

through treatments, but simply argues that they did not improve “to the extent that her

14

ability to sustain work activity was restored.” (Doc. 17 at 15). Plaintiff avers that her use

15

of an EpiPen for allergies shows the severity of her allergies, that the administration and

16

side effects of treatments inhibit the ability to work, and that her treatments were abortive,

17

not preventative. (Id.).

18

At most, Plaintiff’s assertions show the record is ambiguous as to improvement in

19

Plaintiff’s symptoms through treatment, and, “given that the ALJ is the ‘final arbiter with

20

respect to resolving ambiguities in the medical evidence,’” the Court defers to the ALJ’s

21

finding. Singh v. Comm’r of Soc. Sec. Admin., No. CV-19-02315-PHX-MTM, 2020 WL

22

5757620, at *3 (D. Ariz. Sept. 28, 2020) (quoting Tommasetti, 533 F.3d at 1041). Because

23

the ALJ determined that Plaintiff’s condition improved through treatment, the Court finds

24

that the ALJ did not err in discounting Plaintiff’s symptom testimony on this basis. See

25

Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (holding that evidence of effective

26

treatment is sufficient to discount a claimant’s testimony regarding symptom severity)

27

(citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)); see also Singh., 2020 WL

28

5757620, at *2–3 (affirming ALJ’s discounting of plaintiff’s testimony, in part, because

-7-

1
2

plaintiff’s conditions improved with medication).
B.

Objective Medical Evidence

3

The ALJ also found that Plaintiff’s “statements concerning the intensity, persistence

4

and limiting effects of [her] symptoms are not entirely consistent with the medical

5

evidence.” (Doc. 14-3 at 27). The ALJ went on to discuss the medical evidence she found

6

inconsistent citing records indicating that Plaintiff’s aseptic meningitis was stable, (Docs.

7

14-3 at 27; 14-22 at 95), Plaintiff’s doctors consistently indicated she was in no acute

8

distress, (Docs. 14-3 at 27; 14-10 at 160, 168; 14-11 at 42, 46; 14-12 at 52, 59, 64, 105,

9

111; 14-19 at 9, 13; 14-20 at 60, 67, 73, 75, 81, 85, 93; 14-24 at 6), Plaintiff had full strength

10

in her extremities, normal reflexes, normal coordination, and normal sensation, (Docs. 14-

11

3 at 28; 14-9 at 101; 14-10 at 178, 181, 184, 187, 190, 193, 195–96; 14-11 at 51; 14-13 at

12

19–20, 23; 14-14 at 5; 14-15 at 79; 14-20 at 98, 102, 119; 14-22 at 10, 91), a nerve

13

conduction study of Plaintiff’s lower extremity was normal, (Docs. 14-3 at 28; 14-22 at

14

83), Plaintiff’s lungs were typically clear to auscultation bilaterally with no wheezes or

15

crackles, (Docs. 14-3 at 28; 14-11 at 46; 14-12 at 52; 14-19 at 13), and Plaintiff’s hand

16

tremors were barely perceptible at times, (Docs. 14-3 at 28; 14-10 at 187, 190, 193, 196).

17

Plaintiff argues that the ALJ failed to “identify any specific records contrary to any

18

of [Plaintiff’s] specific statements regarding her limitations.” (Doc. 17 at 14). The ALJ,

19

however, specifically noted that the cited medical records did not support the extreme

20

limitations Plaintiff asserted with respect to her meningitis symptoms, asthma, allergies,

21

and hand tremors. (Doc. 14-3 at 28). Thus, the Court finds the ALJ sufficiently tied her

22

characterization of the medical record to Plaintiff’s symptom testimony. See Lewis v.

23

Comm’r of Soc. Sec. Admin., No. CV-20-00765-PHX-MTL, 2021 WL 791467, at *4 (D.

24

Ariz. Mar. 2, 2021) (finding that ALJ, by citing specific instances throughout a multi-year

25

period, adequately tied countervailing medical record to plaintiff’s symptom testimony

26

when discounting that testimony); Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155,

27

1161 (9th Cir. 2008) (“Contradiction with the medical record is a sufficient basis for

28

rejecting the claimant’s subjective testimony.”).

-8-

1

C.

Daily Activities

2

The ALJ additionally found that Plaintiff’s “activities of daily living are not

3

consistent with a finding of disability.” (Doc. 14-3 at 29). Plaintiff’s activities included

4

running errands for her family, knitting, cross stitching, shopping in stores, cosplay, going

5

to salons, attending renaissance festivals, vacations to places including Disneyland, road

6

trips, and playing card games and boardgames with friends. (Docs. 14-3 at 28–29; 14-7 at

7

42–45, 91, 94–95, 122; 14-15 at 186). The ALJ determined that “the fact that [Plaintiff] is

8

able to do these activities indicates that she is not as limited as alleged.” (Doc. 14-3 at 29).

9

Plaintiff avers that, while she performs the above daily activities, she does so only

10

with difficulty and accommodations from those around her. (Doc. 17 at 16). However, even

11

if Plaintiff’s daily activities suggest some difficulty functioning, they may be grounds for

12

discrediting her testimony “‘to the extent that they contradict claims of a totally debilitating

13

impairment.’” Wennet v. Saul, 777 F. App’x 875, 877 (9th Cir. 2019) (quoting Molina v.

14

Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012)). Here, the ALJ summarized Plaintiff’s claims

15

that she suffered significant disabilities including meningitis related vertigo, muscle

16

spasms, headaches, hand tremors, ocular migraines, “get[ting] sick when she goes out in

17

public,” dizziness, allergy related numbness, limited ability to sit and stand, and difficulty

18

lifting large and small items. (See Doc. 14-3 at 27). The ALJ reasonably found that

19

Plaintiff’s daily activities refuted her testimony, even if she had some difficulty while

20

performing these activities. See Singh, 2020 WL 5757620, at *3 (affirming ALJ’s

21

determination that daily activities refuted symptom testimony even though plaintiff

22

experienced difficulty while engaging in activities).

23

Plaintiff further argues that the differences between activities of daily living and

24

activities of a full-time job are not equivalent, so the ability to engage in certain activities

25

of daily living should not have been used to discredit Plaintiff’s symptom testimony. (Doc.

26

17 at 15–16). Yet, “the ALJ is not required to show that a claimant’s activities are

27

transferable to the work setting in order to discount her testimony on their account. Rather,

28

an ALJ may consider whether a claimant engages in daily activities that are simply

-9-

1

inconsistent with her allegations or that suggest that they are exaggerated, irrespective of

2

whether the activities are transferable to a work setting.” Handy v. Comm’r of Soc. Sec.

3

Admin., No. CV-19-04545-PHX-JZB, 2020 WL 5699001, at *4 (D. Ariz. Sept. 24, 2020)

4

(citing Molina, 674 F.3d at 1112).

5

Plaintiff additionally contends that she was not able to engage in all of the listed

6

daily activities with consistency or for long periods. (Doc. 17 at 16). Even if the evidence

7

is not clear on how long or consistently Plaintiff performed her daily activities, as long as

8

the ALJ’s determination is reasonable, it is not the Court’s role to second-guess it. See

9

Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (holding that, even when record

10

was equivocal about how long and often plaintiff engaged in daily activities, because ALJ’s

11

interpretation was reasonable the court would not second-guess it). Here, the ALJ provided

12

a reasonable determination based on substantial evidence that Plaintiff’s daily activities

13

were incompatible with the severity of her alleged symptoms. Thus, the ALJ did not err in

14

discounting Plaintiff’s symptom testimony. See Ghanim v. Colvin, 763 F.3d 1154, 1165

15

(9th Cir. 2014) (“Engaging in daily activities that are incompatible with the severity of

16

symptoms alleged can support an adverse credibility determination.”); Singh, 2020 WL

17

5757620, at *3 (finding ALJ did not err in discounting plaintiff’s allegations of disabling

18

symptoms and limitations because they were inconsistent with her reported activities).

19

3.

Conclusion Regarding Symptom Testimony

20

Because the ALJ provided specific and legitimate reasons for discounting Plaintiff’s

21

symptom testimony, including Plaintiff’s improvement through treatment, the objective

22

medical evidence, and Plaintiff’s daily activities, the Court will not overturn the denial of

23

disability benefits on this ground. See Thomas, 278 F.3d at 959 (“If the ALJ’s credibility

24

finding is supported by substantial evidence in the record, we may not engage in second-

25

guessing.”).

26

c.

Lay Witness Testimony

27

Plaintiff additionally argues that the ALJ erred in rejecting lay witness testimony.

28

(Doc. 17 at 17–19). The testimony at issue was given by Plaintiff’s mother, fiancé, sister,

- 10 -

1

and friend. (Id. at 18). The ALJ, however, did not “reject” the testimony by these witnesses.

2

Instead, the ALJ gave “some weight to these opinions to the extent they are supported by

3

the medical evidence of record.” (Doc. 14-3 at 30). The ALJ found that, while the lay

4

witness testimony bore some weight, it was “not persuasive of warranting additional

5

limitations in the residual functional capacity.” (Id.).

6

“Competent lay witness testimony cannot be disregarded without comment, and in

7

order to discount competent lay witness testimony, the ALJ must give reasons that are

8

germane to each witness.” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1007 (9th

9

Cir. 2015) (internal quotation marks and alterations omitted) (citing Molina, 674 F.3d at

10

1114). The ALJ, however, need not “discuss every witness’s testimony on a [sic]

11

individualized, witness-by-witness basis. Rather, if the ALJ gives germane reasons for

12

rejecting testimony by one witness, the ALJ need only point to those reasons when rejecting

13

similar testimony by a different witness.” Molina, 674 F.3d at 1114.

14

Here, the ALJ did not reject the lay witness testimony. To the contrary, the ALJ

15

cited the lay opinions and gave them some weight “to the extent they are supported by the

16

medical evidence of record.” (Doc. 14-3 at 30). To the extent that the ALJ rejected the

17

testimony that was not supported by the medical record, lack of record support is an

18

appropriate ground on which to reject the testimony of a lay witness. See McGraw v. Saul,

19

817 F. App’x 415, 417 (9th Cir. 2020) (holding it was appropriate to reject lay testimony,

20

in part, because it was inconsistent with medical evidence in the record); Shultes v.

21

Berryhill, 758 F. App’x 589, 593 (9th Cir. 2018) (same).

22

d.

23

Given the errors in the ALJ decision, Plaintiff asserts that the Court should credit

24

the opinions of Dr. Wechsler and NP Dundon as true and remand the case for an immediate

25

award of benefits. (Doc. 17 at 20–21). The Commissioner argues that there are ambiguities

26

and inconsistencies in the record, so an immediate award of benefits would be improper.

27

(Doc. 20 at 4–8). Instead, the Commissioner asks the Court to remand the matter for further

28

administrative proceedings. (Id.).

Remedy

- 11 -

1

1.

Legal Standard

2

“A district court may reverse the decision of the Commissioner of Social Security,

3

with or without remanding the cause for a rehearing, but the proper course, except in rare

4

circumstances, is to remand to the agency for additional investigation or explanation.”

5

Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (internal citations, quotations, and

6

alteration omitted). “Where . . . an ALJ makes a legal error, but the record is uncertain and

7

ambiguous, the proper approach is to remand the case to the agency.” Treichler v. Comm’r

8

of Soc. Sec. Admin., 775 F.3d 1090, 1105 (9th Cir. 2014). This is known as the ordinary

9

remand rule. Gonzales v. Thomas, 547 U.S. 183, 185 (2006).

10

When “no useful purpose would be served by further administrative proceedings

11

and the record has been thoroughly developed,” a district court may credit the improperly

12

rejected opinions as true and remand to the agency for an immediate award of benefits. Hill

13

v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012) (internal quotation marks omitted). The

14

Ninth Circuit has developed a three-element test to determine when a remand for an award

15

of benefits is appropriate known as the “credit-as-true rule.” Treichler, 775 F.3d at 1100.

16

First, a court asks whether the “‘ALJ has failed to provide legally sufficient reasons for

17

rejecting evidence, whether claimant testimony or medical opinion.’” Id. at 1100–01

18

(quoting Garrison, 759 F.3d at 1020).

19

Second, a court reviews the record as a whole and determines whether the record

20

has been fully developed, or whether there are outstanding issues that must be resolved and

21

whether further administrative proceedings would be useful. Id. at 1101; Dominguez, 808

22

F.3d at 407. Further administrative proceedings are generally useful where a record has not

23

been fully developed, there is a need to resolve conflicts or ambiguities, or the presentation

24

of evidence “‘may well prove enlightening.’” Treichler, 775 F.3d at 1101 (quoting I.N.S.

25

v. Orlando Ventura, 537 U.S. 12, 18 (2002)). “Where there is conflicting evidence, and not

26

all essential factual issues have been resolved, a remand for an award of benefits is

27

inappropriate.” Abdullah v. Colvin, 639 F. App’x 516, 517 (9th Cir. 2016).

28

Third, if a court concludes that no outstanding issues remain and further proceedings

- 12 -

1

would not be useful, a court may find the relevant testimony credible as a matter of law.

2

Treichler, 775 F.3d at 1101. Then, a court may determine “whether the record, taken as a

3

whole, leaves ‘not the slightest uncertainty as to the outcome of [the] proceeding.’” Id.

4

(quoting N. L. R. B. v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6 (1969)). When all three

5

elements are met, a court may then remand a case to the agency for an immediate award of

6

benefits. Id. Even if all three elements are met, however, it is still in a court’s discretion

7

whether to remand a case for additional evidence or simply award benefits. Dominguez,

8

808 F.3d at 407; Murrieta v. Comm’r of Soc. Sec. Admin., No. CV-19-04865-PHX-DWL,

9

2020 WL 6883138, at *5 (D. Ariz. Nov. 24, 2020) (citing Treichler, 775 F.3d at 1101–02);

10

see Connett, 340 F.3d at 874–76; Harris v. Comm’r of Soc. Sec. Admin., No. CV-19-08159-

11

PCT-DWL, 2020 WL 5939736, at *7 (D. Ariz. Oct. 7, 2020).

12

2.

Discussion

13

Here, the parties agree that the first element has been satisfied. As discussed supra,

14

the ALJ failed to provide legally sufficient reasons for assigning little weight the medical

15

opinions of Dr. Wechsler and NP Dundon. See supra Section III.a.

16

The parties disagree, however, on whether the second element has been satisfied.

17

Plaintiff argues that the record is fully developed because the opinions of Dr. Wechsler and

18

NP Dundon clearly establish that Plaintiff is disabled. (Doc. 17 at 21). The Commissioner

19

asserts that further administrative proceedings are needed because the record “is replete

20

with evidence showing that Plaintiff’s impairments would not preclude her from

21

performing all competitive work activity.” (Doc. 20 at 6). The Court agrees with the

22

Commissioner that there are inconsistencies in the record that further administrative

23

proceedings would help resolve. These inconsistencies can be found in the opinions and

24

notes of Dr. Wechsler and NP Dundon and when comparing the opinions of Dr. Wechsler

25

and NP Dundon to other portions of the record.

26

A.

The Opinions and Notes of Dr. Wechsler and NP Dundon

27

To begin, the medical opinions and notes of Dr. Wechsler and NP Dundon are not

28

entirely consistent with each other or themselves. For example, NP Dundon examined

- 13 -

1

Plaintiff on March 18, 2016 and opined that Plaintiff had “increased difficulty with balance,

2

she is dragging her left leg more and she has had multiple falls.” (Doc. 14-11 at 5). NP

3

Dundon went on to recommend that Plaintiff “use a walker to prevent falls [because

4

Plaintiff] does not have very good balance with just a cane.” (Id. at 6). In the same report,

5

however, NP Dundon noted that Plaintiff reported “no difficulty with gait or walking,” had

6

a normal gait and station, and could ambulate independently. (Id. at 5–6). Additionally, NP

7

Dundon noted that Plaintiff had “been having a lot of symptoms of headache, nausea and

8

increased weakness in the lower extremity,” but also indicated that Plaintiff had normal

9

bulk in the lower extremities and reported no headaches and normal appetite. (Id.).

10

Further, Plaintiff had an appointment with Dr. Wechsler on March 4, 2016 in which

11

Dr. Wechsler noted Plaintiff’s “recurrent episodes of vertigo” which included vertigo on

12

the date of the visit. (Id. at 50–51). However, on her March 18, 2016 visit with NP Dundon,

13

Plaintiff reported no symptoms of vertigo. (Id. at 5). Further, on March 4, 2016, Dr.

14

Wechsler reported that Plaintiff had normal bilateral motor strength and normal gait in her

15

neurological check, (id. at 51), but on March 18, 2016 Plaintiff reported multiple falls, poor

16

balance, and “dragging her left leg” when she walked, (id. at 5–6).

17

By citing these inconsistencies, the Court does not mean to suggest that Plaintiff did

18

not experience the symptoms of which she complained as it would be inappropriate for the

19

Court to look at certain portions of the medical record and consider only how Plaintiff

20

presented on the days of her medical appointments. See Gerstner v. Berryhill, 879 F.3d

21

257, 262 (7th Cir. 2018) (noting it was inappropriate for an ALJ to fixate on select portions

22

of the medical record while ignoring others). The Court only means to point out that there

23

are inconsistencies between the medical opinions and notes of Dr. Wechsler and NP

24

Dundon. Further administrative proceedings should be held to address these and other

25

inconsistencies. See Mitchell v. Saul, No. 19-CV-03249-JSC, 2020 WL 4226518, at *14

26

(N.D. Cal. July 23, 2020) (holding that further administrative proceedings were needed,

27

citing two inconsistencies in treating physicians’ opinions and notes, even though treating

28

physicians’ opinions were erroneously given little weight by the ALJ).

- 14 -

1

B.

The Rest of the Record

2

As discussed supra, Plaintiff’s response to treatment, portions of the objective

3

medical evidence, and Plaintiff’s daily activities are not completely consistent with a

4

finding of total disability. See supra Section III.b.2. Thus, there are inconsistencies

5

between Dr. Wechsler’s and NP Dundon’s opinions that Plaintiff is unable to work in any

6

capacity and the portions of the record discussed supra.

7

Further, Dr. Wechsler’s and NP Dundon’s opinions that Plaintiff is totally disabled

8

conflict with the opinions of Dr. Johnson and Dr. Hirsch who found that Plaintiff was

9

capable of sedentary work. (Docs. 14-3 at 29; 14-4 at 28–32, 50–56, 73–79). Plaintiff

10

argues that the opinions of these physicians cannot contradict the opinions of Dr. Wechsler

11

and NP Dundon because Dr. Johnson and Dr. Hirsch are non-examining physicians. (Doc.

12

21 at 3 (citing Gallant, 753 F.2d at 1454). It is true that the opinions of non-examining

13

physicians, standing alone, would not provide substantial evidence to dispute Dr.

14

Wechsler’s and NP Dundon’s opinions. Gallant, 753 F.2d at 1454 (holding that reports of

15

non-examining physicians did not provide substantial evidence because they were

16

“contradicted by all other evidence in the record”). Dr. Johnson’s and Dr. Hirsch’s

17

opinions, however, are not standing alone. Dr. Johnson’s and Dr. Hirsch’s opinions are

18

supported by Plaintiff’s response to treatment, portions of the objective medical evidence,

19

and Plaintiff’s daily activities. See supra Section III.b.2.

20

Because Dr. Johnson’s and Dr. Hirsch’s opinions find support in the record, they

21

constitute conflicts with the opinions of Dr. Wechsler and NP Dundon that Plaintiff is

22

disabled. Further proceedings should be held to address these conflicts. See Radha v.

23

Colvin, No. CV-15-01400-PHX-ESW, 2016 WL 4253960, at *12 (D. Ariz. Aug. 11, 2016)

24

(holding that further administrative proceedings were needed because there were

25

inconsistencies in the medical record between physician opinions, objective medical

26

evidence, and plaintiff’s activities).

27
28

3.

Conclusion Regarding Remedy

Because there are outstanding inconsistencies that further administrative

- 15 -

1

proceedings would help resolve, the Court cannot proceed to step three and deem the

2

opinions of Dr. Wechsler and NP Dundon to be true. See Dominguez, 808 F.3d at 410;

3

Murillo v. Colvin, No. 15-CV-01325-JSC, 2016 WL 777793, at *24 (N.D. Cal. Feb. 29,

4

2016). Rather, the Court must remand for further proceedings. See Dominguez, 808 F.3d

5

at 409 (holding that the erroneously weighted opinions of plaintiff’s treating physician

6

could not be credited as true, in part, because they conflicted with treating physician’s notes

7

and the opinions of non-examining physicians); Bryant v. Colvin, No. 15-CV-02982-JSC,

8

2016 WL 3405442, at *26 (N.D. Cal. June 21, 2016) (holding that the improperly weighted

9

opinions of plaintiff’s treating and examining physicians could not be credited as true

10

because the entire record left open the question of plaintiff’s exact disability status and

11

because of inconsistences among physicians); Murillo, 2016 WL 777793, at *24 (holding

12

erroneously weighted opinions of examining physicians would not be credited as true

13

because of inconsistencies in the record).

14

IV.

CONCLUSION

15

Accordingly,

16

IT IS ORDERED that the ALJ decision is VACATED and the case is

17
18
19
20

REMANDED for further proceedings consistent with this Order.
IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment
accordingly.
Dated this 26th day of April, 2021.

21
22
23
24
25
26
27
28

- 16 -