Hiduchick v. Commissioner of Social Security Administration
Filing
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ORDER - IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED and this case is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings, including a new administrative hearing, to allow th e Commissioner to further evaluate the medical opinion evidence, reevaluate Plaintiff's residual functional capacity in light of the reevaluation of the medical opinions, and issue a new decision.IT IS FURTHER ORDERED that the Clerk of Court is directed to enter judgment accordingly. See document for complete details. Signed by Judge Susan M Brnovich on 11/16/2021. (WLP)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Heather Angel Hiduchick,
No. CV-19-08179-PCT-SMB
Plaintiff,
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v.
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Commissioner
Administration,
ORDER
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of
Social
Security
Defendant.
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At issue is the denial of Plaintiff Heather Hiduchick’s Applications for Social
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Security Disability Insurance (“SSDI”) and Supplemental Security Income (“SSI”)
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benefits by the Social Security Administration (“SSA”) under the Social Security Act (“the
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Act”). Plaintiff filed a Complaint (Doc. 1) seeking judicial review of that denial and an
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Opening Brief (Doc. 16). Defendant SSA filed an Answering Brief (Doc. 19), and Plaintiff
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filed a Reply (Doc. 22). The Court has reviewed the briefs and Administrative Record
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(“AR”) (Doc. 11) and reverses the Administrative Law Judge’s (“ALJ”) decision (AR at
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14-26) and remands this matter for a new hearing for the reasons addressed herein.
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I.
Background
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Plaintiff filed an Application for SSDI and SSI benefits on May 22, 2015, alleging
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a disability beginning on November 10, 2013. (AR 14). Plaintiff’s claims were initially
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denied on October 21, 2015, and upon reconsideration on March 25, 2016. (Id.) A hearing
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was held before ALJ Tin Chen on February 1, 2018. (Id. at 32-76). Plaintiff was 45 years
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old at the time of the hearing and held previous employment as a bookkeeper and assistant
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retail store manager. (Id.) Plaintiff’s Applications were denied by the ALJ on July 5, 2018.
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(Id. at 26). Thereafter, the Appeals Council denied Plaintiff’s Request for Review of the
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ALJ’s decision and this appeal followed. (Doc. 1).
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After considering the medical evidence and opinions, the ALJ evaluated Plaintiff’s
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disability claim based on the severe impairments of bipolar disorder, agoraphobia, anxiety
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disorder, and depressive disorder. (AR 17). While the ALJ noted that Plaintiff’s severe
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impairments limited her ability to perform basic work activities, the ALJ determined that
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Plaintiff had the residual functional capacity (“RFC”) to perform a full range of work at all
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exertional levels, and thus was not disabled. (Id. at 29).
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Plaintiff argues that the ALJ committed harmful error in rejecting the assessment of
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Licensed Associate Counselor (“LAC”) Karen Marzullo without giving germane reasons
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for doing so, in improperly considering the opinions of Dr. Celia A. Drake, and in
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discounting her subjective symptom testimony without providing clear and specific reasons
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for doing so. (Doc. 16 at 2). Plaintiff argues this matter should be remanded for an award
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of benefits. (Id. at 28-29). The Commissioner argues that the ALJ did not err in the
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consideration of Marzullo’s opinions or in addressing Plaintiff’s symptom testimony.
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(Doc. 19). However, the Commissioner concedes that the ALJ erred in the consideration
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of Dr. Drake’s opinions, arguing that remand of this matter is necessary for a new hearing
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and decision. (Id.) The Court has reviewed the medical record and will discuss the
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pertinent evidence in addressing the issues raised by the parties.
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II.
Legal Standards
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An ALJ’s factual findings “shall be conclusive if supported by substantial
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evidence.” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). The Court may set aside
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the Commissioner’s disability determination only if it is not supported by substantial
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evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
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Substantial evidence is relevant evidence that a reasonable person might accept as adequate
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to support a conclusion considering the record as a whole. Id. Generally, “[w]here the
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evidence is susceptible to more than one rational interpretation, one of which supports the
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ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947,
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954 (9th Cir. 2002) (citations omitted). In determining whether to reverse an ALJ’s
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decision, the district court reviews only those issues raised by the party challenging the
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decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001).
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To determine whether a claimant is disabled for purposes of the Act, the ALJ
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follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of
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proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett
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v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether
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the claimant is presently engaging in substantial gainful activity.
20 C.F.R.
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§404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe”
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medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At
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step three, the ALJ considers whether the claimant’s impairment or combination of
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impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P
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of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically
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found to be disabled. Id. At step four, the ALJ assesses the claimant’s RFC and determines
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whether the claimant is still capable of performing past relevant work.
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§ 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and final step, where she
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determines whether the claimant can perform any other work in the national economy
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based on the claimant’s RFC, age, education, and work experience.
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§ 404.1520(a)(4)(v). If not, the claimant is disabled. Id.
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III.
20 C.F.R.
20 C.F.R.
Analysis
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Plaintiff argues that the ALJ committed harmful error in rejecting the assessment of
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LAC Marzullo without giving germane reasons for doing so, in improperly considering the
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opinions of consultive examiner Dr. Celia A. Drake, and in discounting Plaintiff’s
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subjective symptom testimony without providing clear and specific reasons for doing so.
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(Doc. 16 at 2). The Court will address these issues in turn.
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A.
The ALJ erred in considering the opinion of consultive examiner, Dr.
Celia A. Drake.
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Here, both parties agree that the ALJ improperly considered the opinion of
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consultive examiner, Dr. Celia A. Drake. (Doc. 16 at 22-24; Doc 19 at 23-24). In
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particular, the Commissioner concedes that while the ALJ accorded both “great” and
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“significant” weight to Dr. Drake’s opinion, the ALJ did not account for Dr. Drake’s
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opinions as to the effect of Plaintiff’s impairments in the RFC assessment, or explain how
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Dr. Drake’s opinion impacted the RFC finding. (Doc. 19 at 23-24). Therefore, the Court
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finds harmful error here.
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B.
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The ALJ gave germane reasons to give little weight to the opinion of
Karen Marzullo.
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Plaintiff argues that the ALJ failed to give germane reasons to reject the opinion of
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her counselor, Ms. Marzullo. (Doc. 16 at 16). Plaintiff argues that the Court should credit
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Marzullo’s opinion as true and remand this matter for an award of benefits.
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At the time Plaintiff filed her Application, Ms. Marzullo, a counselor, was not
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considered an “acceptable” medical source, but rather was an “other source” opinion. Popa
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v. Berryhill, 872 F.3d 901, 907 (9th Cir. 2017). Thus, to reject her opinion, the ALJ only
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needed to provide “germane” reasons for doing so. Id. at 906; see also 20 C.F.R. §
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406.913(a) (defining acceptable medical sources as licensed physicians and psychologists),
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416.913(d) (defining other sources as medical professionals not listed in subsection (a));
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Britton v. Colvin, 787 F.3d 1011, 1013 (9th Cir. 2015) (per curiam) (ALJ need only give
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germane reasons to reject an “other source” opinion). Thus, while merely stating that
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Marzullo’s status as an unacceptable medical source would not be a germane reason to
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reject her opinion, the ALJ cited multiple reasons to give this opinion little weight. See
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Camilli v. Berryhill, No. 18-CV-06322-JSC, 2019 WL 3412921, at *8 (N.D. Cal. July 29,
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2019) (citing Popa, 872 F.3d at 907).
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Marzullo completed a two-page check-box questionnaire where she opined that
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Plaintiff had moderate limitations in her ability to understand, remember, and carry out
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instructions, and had marked to extreme limitations in her ability to maintain attention and
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concentration. (AR 985-86). Marzullo also opined to extreme limitation in Plaintiff’s
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ability to interact with others. (Id.) Marzullo concluded by checking a box that Plaintiff
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could perform a job for eight hours per day for five days per week on a sustained basis less
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than 50% of the time. (Id.)
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The ALJ first noted that this opinion was not supported by the objective medical
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evidence.
See 20 C.F.R. § 404.1527(c)(4) (the ALJ is charged with evaluating the
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“consistency of [an] opinion with the record as a whole”). The ALJ specifically discussed
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clinical findings and examination notes describing Plaintiff’s cooperative demeanor,
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logical thought process, attention, and stable moods. (AR 23).
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The ALJ also stated that the two-page form contained only checks, and that
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Marzullo did not provide additional support or comments for any of her opined limitations.
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(Id. at 22). While Plaintiff contends that this is not a germane reason to reject this opinion,
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Plaintiff’s arguments are misplaced. First, the cases cited by Plaintiff in this section relate
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to treating physicians, not “other source” opinions. (Doc. 16 at 21). Moreover, the
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regulations instruct the ALJ to give weight to the source opinion evidence based on the
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explanation provided by the source to support the opinion. See 20 C.F.R. § 404.1527(c)(3)
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(“The better an explanation a source provides for a medical opinion, the more weight we
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will give that medical opinion.”). The ALJ did not err in noting that there was no
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explanation accompanying the checked boxes.
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Lastly, the ALJ considered the length of the treatment relationship, noting that it
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appeared that Marzullo completed the check-box form after meeting Plaintiff only once.
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(AR 22). Plaintiff acknowledged that she met with Marzullo for the specific purpose of
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obtaining an evaluation for her Application. (Id. at 65). As the regulations instruct the
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ALJ to consider the length and nature of the treatment relationship when weighing source
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opinions, the ALJ did not err by noting the short period of the treatment relationship. See
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20 C.F.R. § 404.1527(c)(2) (“Generally, the longer a treating source has treated you and
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the more times you have been seen by a treating source, the more weight we will give to
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the source’s medical opinion.”).
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Based on all these reasons, the ALJ determined that Marzullo’s opinions would be
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given little weight. The Court finds that the ALJ provided germane reasons for giving little
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weight to this opinion. The ALJ did not err here.
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C.
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The ALJ provided specific, clear, and convincing reasons supported by
substantial evidence for rejecting Plaintiff’s symptom testimony.
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Plaintiff argues that the ALJ did not give legitimate and convincing reasons
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supported by substantial evidence for discounting her subjective symptom testimony.
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(Doc. 16 at 24-28). The Commissioner argues that the ALJ properly examined the medical
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evidence to determine that the record did not support Plaintiff’s testimony as to the severity
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of her symptoms. (Doc. 19 at 14-19).
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An ALJ must evaluate whether the claimant has presented objective medical
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evidence of an impairment “which could reasonably be expected to produce the pain or
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symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007)
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(quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal citations
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omitted)). In evaluating a claimant’s pain testimony after a claimant produces objective
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medical evidence of an underlying impairment, “an ALJ may not reject a claimant’s
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subjective complaints based solely on a lack of medical evidence to fully corroborate the
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alleged severity of pain.” Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). However,
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the ALJ may “reject the claimant’s testimony about the severity of [the] symptoms”
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provided that the ALJ also explains his decision “by providing specific, clear, and
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convincing reasons for doing so.” Brown-Hunter v. Colvin, 806 F.3d 487, 488–89 (9th Cir.
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2015). The ALJ may also consider “‘whether the claimant engages in daily activities
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inconsistent with the alleged symptoms.’” Id. (quoting Lingenfelter v. Astrue, 504 F.3d
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1028, 1040 (9th Cir. 2007)).
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functioning, they may be grounds for discrediting the claimant’s testimony to the extent
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that they contradict claims of a totally debilitating impairment,” Id. at 1113, or where they
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suggest that “later claims about the severity of [the] limitations were exaggerated,”
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Valentine v. Astrue, 574 F.3d 685, 694 (9th Cir. 2009).
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“Even where those activities suggest some difficulty
Plaintiff alleged that she suffered from medical conditions that cause fatigue,
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depression, anxiety, self-isolation, night terrors, difficulty hearing and remembering, and
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difficulty concentrating and getting along with others. (AR 39-77). Plaintiff testified that
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she often feared leaving her home and that she had profound agoraphobia. (Id.) Despite
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these symptoms, Plaintiff testified that she cares for her cats, manages personal care and
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hygiene, prepares meals, drives, goes shopping, and likes to read, do crossword puzzles,
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and messages with friends and family. (Id.)
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The ALJ found that Plaintiff’s medically determinable impairments could
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reasonably be expected to produce the symptoms alleged, but that her statements
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concerning the intensity, persistence, and limiting effects of those symptoms were not
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consistent with the medical evidence, including her own statements and testimony
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regarding activities of daily living. (Id. at 22).
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To support this finding, the ALJ discussed treatment records showing that Plaintiff’s
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symptoms generally improved with medications, including medical marijuana, when
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Plaintiff was compliant with taking her medications. (AR 329-33). The ALJ also noted
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that at that time, Plaintiff reported that functioning was not difficult at all, and that she had
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a generally normal mental status examination. (Id.)
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The ALJ also discussed Plaintiff’s testimony about her daily activities and found
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these to be inconsistent with her allegations of disabling symptoms. The ALJ noted that
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Plaintiff took a trip to Boston in 2015, and later gave widely varying accounts of her
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symptoms on this vacation. (AR 22). To medical providers, Plaintiff reported that she
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spent the trip socializing, reconnecting with friends, had a positive experience, had no
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desire to come home, and had an “amazing” time attending an NFL football game. (Id. at
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459). At the hearing, Plaintiff testified that this trip was stressful, required her to be
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tranquilized for the flights, and that when she got to Boston, all she wanted to do was come
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home. (Id. at 53). The ALJ found that her ability to travel to Boston and attend a
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professional football game at a full NFL stadium runs counter to her claims of profound
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agoraphobia.
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inconsistencies. See 20 C.F.R. § 404.1529 (c)(4) (“We will consider whether there are any
(Id. at 22).
Indeed, the ALJ is responsible for addressing such
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inconsistencies in the evidence and the extent to which there are any conflicts between your
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statements and the rest of the evidence, including your history, the signs and laboratory
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findings, and statements by your medical sources or other persons about how your
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symptoms affect you.”). And while Plaintiff argues that it was harmful error for the ALJ
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to use her travel to question the severity of her symptoms, numerous decisions from the
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Ninth Circuit hold otherwise. See Romanelli v. Astrue, 267 Fed. Appx. 722, 724 (9th Cir.
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2008) (“ALJ reasonably concluded that Ms. Romanelli’s claimed limitation of being
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unable to stand for more than fifteen minutes at a time was inconsistent with her testimony
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about her physical activities such as traveling around the United Kingdom for two weeks”);
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Wennet v. Saul, 777 Fed. Appx. 875, 877 (9th Cir. 2018) (discounting symptom testimony
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where claimant travelled to New York and Italy); Sadeeq v. Colvin, 607 Fed. Appx. 629,
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631 (9th Cir. 2015) (“ALJ did not err by concluding that Sadeeq’s trip to Mecca for a
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pilgrimage suggested that the alleged symptoms and limitations may have been
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overstated.”).
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Lastly, the Court does not agree that the ALJ relied only on her “perceived medical
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expertise” in discounting Plaintiff’s symptom testimony. (Doc. 16 at 26). The ALJ
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properly concluded that the examinations in the medical record did not support Plaintiff’s
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claims of disabling limitations, and therefore, properly found that her subjective symptom
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testimony was not persuasive. While Plaintiff may see this evidence in a different light,
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the Court cannot second-guess the findings of the ALJ when there is no error in the
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discussion of the symptom testimony. See Thomas, 278 F.3d at 954 (“[w]here the evidence
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is susceptible to more than one rational interpretation, one of which supports the ALJ’s
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decision, the ALJ’s conclusion must be upheld.”). The Court finds that the ALJ provided
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specific, clear, and convincing reasons for discounting Plaintiff’s symptom testimony. See
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Brown-Hunter, 806 F.3d at 488–89.
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IV.
Remand for Further Proceedings
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Here, the Court has found error in the ALJ’s consideration of Dr. Drake’s opinion.
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Once a court has determined an ALJ’s decision contains harmful error, the decision
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whether to remand a case for additional evidence or for an award of benefits is within the
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discretion of the court. Reddick, 157 F.3d at 728; Swenson v. Sullivan, 876 F.2d 683, 689
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(9th Cir. 1989). However, the latter is “a rare and prophylactic exception to the well-
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established ordinary remand rule.” Leon v. Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2017).
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For the Court to remand for award of benefits, three conditions must be satisfied: “(1) the
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record has been fully developed and further administrative proceedings would serve no
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useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting
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evidence, whether claimant testimony or medical opinion; and (3) if the improperly
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discredited evidence were credited as true, the ALJ would be required to find the claimant
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disabled on remand.” Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). However,
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even where each condition is satisfied, the Court may still remand for further administrative
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proceedings if “an evaluation of the record as a whole creates serious doubt that a claimant
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is, in fact, disabled.” Id. at 1021. “If additional proceedings can remedy defects in the
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original administrative proceedings, a social security case should be remanded. “Remand
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for further proceedings is appropriate where there are outstanding issues that must be
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resolved before a determination can be made, and it is not clear from the record that the
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ALJ would be required to find claimant disabled if all the evidence were properly
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evaluated.” Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir. 2012) (citing Vasquez v. Astrue,
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572 F.3d 586, 593 (9th Cir. 2009)).
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Here, it is not clear from the record that the ALJ would be required to find Plaintiff
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disabled if all the evidence were properly evaluated using the proper standards. Of note,
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Plaintiff’s Opening Brief appears to argue for an award of benefits if the Court were to find
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error on either the ALJ’s findings as to Plaintiff’s symptom testimony or to Ms. Marzallo’s
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opinions, but not as to Dr. Drake’s opinion. (Doc. 16 at 28-29). The Court has determined
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that the ALJ properly addressed the inconsistences in Plaintiff’s symptom testimony in
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arriving at the determination to reject that testimony. The Court has also determined that
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the ALJ gave germane reasons for giving little weight to Ms. Marzullo’s opinion. Here,
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further proceedings would be useful given that Dr. Drake’s opinion was not meaningfully
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addressed. The Court is reluctant to credit this opinion as true and remand for immediate
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payment of benefits where there was no meaningful analysis of Dr. Drake’s opinion and
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credibility. The issue is thus best left to the ALJ, as the designated finder of fact, to
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determine whether this medical opinion evidence, when properly evaluated according to
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applicable regulatory standards, establishes disability.
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discretion, finds that a remand for further proceedings is appropriate, to hold a new hearing,
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reconsider the medical opinion evidence of record, and issue a new decision.
Therefore, the Court, in its
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Accordingly,
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IT IS HEREBY ORDERED that the decision of the Commissioner is
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REVERSED and this case is REMANDED pursuant to sentence four of 42 U.S.C. §
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405(g) for further administrative proceedings, including a new administrative hearing, to
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allow the Commissioner to further evaluate the medical opinion evidence, reevaluate
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Plaintiff’s residual functional capacity in light of the reevaluation of the medical opinions,
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and issue a new decision.
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IT IS FURTHER ORDERED that the Clerk of Court is directed to enter judgment
accordingly.
Dated this 16th day of November, 2021.
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