Groleau v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

WALTER G.,1 No. 6:23-cv-01694-YY

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER, SOCIAL

SECURITY ADMINISTRATION,

Defendant.

YOU, Magistrate Judge,

Plaintiff Walter G. seeks judicial review of the Social Security Commissioner

(“Commissioner”)’s final decision denying his application for Disability Insurance Benefits

(“DIB”) under Title II of the Social Security Act (“SSA”). 42 U.S.C. §§ 401–33. This court has

jurisdiction to review the Commissioner’s decision pursuant to 42 U.S.C. § 405(g) and §

1383(c)(3). For the reasons set forth below, the Commissioner’s decision is REVERSED and this

case is REMANDED for further proceedings.

PROCEDURAL HISTORY

Plaintiff filed an application for DIB on February 18, 2020, alleging a disability onset

date of December 23, 2019. Tr. 211-18. The Commissioner denied Plaintiff’s claim initially and

on reconsideration. Tr. 66-78, 80-100. Plaintiff filed a written request for a hearing, and a

1 In the interest of privacy, this Opinion uses only the first name and the initial of the last name

of the nongovernmental party in this case.

hearing was held before Administrative Law Judge Mark Triplett in August, 2022. Tr. 32-64.

The ALJ issued a decision finding Plaintiff not disabled within the meaning of the Act. Tr. 12–

31. The Appeals Council denied Plaintiff’s request for review on September 18, 2023. Tr. 1–6.

Thus, the ALJ’s decision is the Commissioner’s final decision and subject to review by this

Court. 42 U.S.C. § 405(g); 20 C.F.R. § 422.210.

STANDARD OF REVIEW

The reviewing court must affirm the Commissioner’s decision if it is based on proper

legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. §

405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Substantial evidence is “more than a

mere scintilla,” and means only “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion. Biestek v. Berryhill, 139 S. Ct. 1148, 1150 (2019) (internal

quotation marks omitted). This court must weigh the evidence that supports and detracts from the

ALJ’s conclusion and “ ‘may not affirm simply by isolating a specific quantum of supporting

evidence.’ ” Garrison v. Colvin, 759 F.3d 995, 1009–10 (9th Cir. 2014) (quoting Lingenfelter v.

Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). This court may not substitute its judgment for that

of the Commissioner when the evidence can reasonably support either affirming or reversing the

decision. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Instead, where the evidence is

susceptible to more than one rational interpretation, the Commissioner’s decision must be upheld

if it is “supported by inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533

F.3d 1035, 1038 (9th Cir. 2008) (citation omitted); see also Lingenfelter, 504 F.3d at 1035.

SEQUENTIAL ANALYSIS AND ALJ FINDINGS

Disability is the “inability to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be expected to result in death

or which has lasted or can be expected to last for a continuous period of not less than 12

months.” 42 U.S.C. § 423(d)(1)(A). The ALJ engages in a five-step sequential inquiry to

determine whether a claimant is disabled within the meaning of the Act. 20 C.F.R. § 404.1520;

Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (discussing Tackett v. Apfel, 180

F.3d 1094, 1098–99 (9th Cir. 1999)).

At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity

since December 23, 2019, the alleged onset date. Tr. 18. At step two, the ALJ found Plaintiff had

the following severe, medically determinable impairments: Left Shoulder Adhesive Capsulitis;

Status-Post Stroke; Morbid Obesity; and Lower Extremity Edema (left worse than right). Tr. 18.

At step three, the ALJ found no impairment met or equaled the severity of any impairment listed

in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 19. The ALJ assessed that Plaintiff’s residual

functional capacity (“RFC”) as follows:

[T]he claimant has the residual functional capacity to perform light work as

defined in 20 CFR 404.1567(b) except the claimant can occasionally push/pull

with the left, non-dominant upper extremity. The claimant can occasionally climb

ramps and stairs, but never climb ladders, ropes, or scaffolds. The claimant can

occasionally balance, stoop, kneel, crouch, and crawl. The claimant can

occasionally reach overhead with the left, non-dominant upper extremity. The

claimant can frequently, but not constantly, handle, finger, and feel with the left,

non-dominant upper extremity.

Tr. 20.

At step four, the ALJ determined that Plaintiff was unable to perform any past relevant

work. Tr. 24. At step five, the ALJ found that considering Plaintiff’s age, education, work

experience, and residual functional capacity, jobs exist in significant numbers in the national

economy that Plaintiff can perform, such as cashier, ticket seller, and mail clerk. Tr. 25. The ALJ

therefore found Plaintiff not disabled. Tr. 25.

DISCUSSION

Plaintiff argues that the ALJ erred by (1) improperly discounting his symptom testimony,

(2) failing to properly evaluate the medical opinions of the State agency medical consultants, and

(3) failing to identify a significant number of jobs that Plaintiff could perform at step five.

I. Subjective Symptom Testimony

When a claimant has medically documented impairments that could reasonably be

expected to produce some degree of the symptoms alleged, and the record contains no

affirmative evidence of malingering, “the ALJ can reject the claimant’s testimony about the

severity of ... symptoms only by offering specific, clear and convincing reasons for doing so.”

Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (citation omitted). A general assertion that

the claimant is not credible is insufficient; the ALJ must “state which ... testimony is not credible

and what evidence suggests the complaints are not credible.” Dodrill v. Shalala, 12 F.3d 915,

918 (9th Cir. 1993). The reasons proffered must be “sufficiently specific to permit the reviewing

court to conclude that the ALJ did not arbitrarily discredit the claimant’s testimony.” Orteza v.

Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted). The ALJ need not “perform

a line-by-line exegesis of the claimant’s testimony” or “draft dissertations when denying

benefits.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). But Ninth Circuit law “plainly

requires” that an ALJ do more than “offer[ ] non-specific conclusions that [the claimant’s]

testimony [is] inconsistent with [certain evidence].” Id. (citations omitted). If the “ALJ’s

credibility finding is supported by substantial evidence in the record, [the court] may not engage

in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted).

In evaluating a claimant’s subjective symptom testimony, an ALJ may consider whether

it is consistent with objective medical evidence. 20 C.F.R. §§ 404.1529(c)(1)-(3), 416.929(c)(1)-

(3); SSR 16-3p, available at 2017 WL 5180304, at *7-8. The lack of objective medical evidence

may not form the sole basis for discounting a claimant’s testimony. Tammy S. v. Comm’r Soc.

Sec. Admin., No. 6:17-cv-01562-HZ, 2018 WL 5924505, at *4 (D. Or. Nov. 10, 2018) (citing

Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“[T]he Commissioner may not discredit

[a] claimant’s testimony as to the severity of symptoms merely because they are unsupported by

objective medical evidence.”)). However, “[w]hen objective medical evidence in the record is

inconsistent with the claimant’s subjective testimony, the ALJ may indeed weigh it as

undercutting such testimony.” Smartt v. Kijakazi, 53 F.4th 489, 498 (9th Cir. 2022) (emphasis in

original).

Effective March 28, 2016, the Commissioner superseded Social Security Ruling (“SSR”)

96-7p, governing the assessment of a claimant’s “credibility,” and replaced it with SSR 16-3p.

See SSR 16-3p, available at 2016 WL 1119029. SSR 16-3p eliminates the reference to

“credibility,” clarifies that “subjective symptom evaluation is not an examination of an

individual’s character,” and requires the ALJ to consider all the evidence in an individual’s

record when evaluating the intensity and persistence of symptoms. Id. at *1-2. The ALJ must

examine “the entire case record, including the objective medical evidence; an individual’s

statements about the intensity, persistence, and limiting effects of symptoms; statements and

other information provided by medical sources and other persons; and any other relevant

evidence in the individual’s case record.” Id. at *4

In considering Plaintiff’s testimony, the ALJ found Plaintiff’s medically determinable

impairments could reasonably be expected to cause some of the alleged symptoms and did not

identify evidence of malingering. Tr. 21. However, the ALJ concluded that Plaintiff’s statements

concerning the intensity, persistence and limiting effects of his symptoms were not entirely

consistent with the medical evidence and other evidence in the record. Tr. 21.

Plaintiff identifies discrete parts of his testimony that he argues the ALJ either failed to

address or discounted for insufficient reasons. First, Plaintiff highlights that, at the hearing, he

testified he needs to rest an hour once a day. Tr. 338. Plaintiff also testified he is not very good at

reaching for things. Tr. 53. The ALJ acknowledged this latter testimony, noting that Plaintiff has

trouble “using his left arm to reach but says there is no issue using his left hand.” Tr. 21.

However, the ALJ otherwise erred, as discussed below.

A. Need to Rest One Hour Daily

The ALJ erred by failing to address Plaintiff’s testimony that he needs to rest one hour

per day. Social Security regulations require ALJs to consider evidence they receive from

claimants about their symptoms and limitations when evaluating a claim of disability. See 20

C.F.R. §§ 404.1513(4) (defining “evidence from nonmedical sources”), 404.1520(3)(“We will

consider all evidence in your case record when we make a determination[.]”), 404.1520b (“After

we review all of the evidence relevant to your claim, we make findings about what the evidence

shows.”), 404.1529(c)(3) (“[W]e will carefully consider any other information you may submit

about your symptoms.”), 404.1545(a)(3) (“We will assess your residual functional capacity

based on all of the relevant medical and other evidence.”). The Ninth Circuit has emphasized that

an ALJ may not reject “significant probative evidence” without explanation. Vincent ex rel.

Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984).

Here, Plaintiff testified that he needs a one-hour nap every day, Tr. 338, which (if taken

during the work day) would preclude him from performing the jobs identified by the VE at step

five. See Tr. 62 (recognizing that an individual being off task more than 15% of a workday

would not be able to perform identified jobs). Defendant acknowledges the ALJ did not address

this testimony at all, but argues that Plaintiff’s fatigue evidence is “neither significant nor

probative.” See Def. Br., ECF No. 16 at 4-5. Defendant is incorrect. First, the evidence is

significant and relevant to Plaintiff’s disability claim; if he indeed needed to rest for an hour

during each work day, he would be unable to perform the jobs identified by the VE at step five.

See Tr. 61-62. Second, Defendant’s arguments about the strength of the evidence are

impermissible post hoc rationalizations that the Court cannot consider on appeal. Bray v.

Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1226-27 (9th Cir. 2009).2 Because Plaintiff’s

symptom testimony bore on his ability to work, and the ALJ failed to address it or provide a

clear and convincing reason for discounting it, the ALJ erred.

B. Plaintiff’s Left-Sided Reaching Testimony

The ALJ failed to articulate a clear and convincing reason to discount Plaintiff’s

allegations about difficulty reaching with his left arm. At the hearing, Plaintiff testified that he

cannot reach very well with his left arm. Tr. 53. The ALJ acknowledged this testimony, but did

not cite any portion of the medical record that directly undermined it. Tr. 20-21.

When discounting symptom testimony, an ALJ’s decision “must be sufficiently specific

to allow a reviewing court to conclude the adjudicator rejected the claimant’s testimony on

permissible grounds and did not arbitrarily discredit a claimant’s testimony regarding pain.”

Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). In this context, that means an ALJ must

2 Defendant identifies several aspects of the medical record that might undermine this testimony.

See Def. Br. at 5 (citing treatment records where Plaintiff denied fatigue, conflicting function

reports, and lack of fatigue testimony at the hearing). Because the ALJ did not rely on any of

these bases, the Court will not consider them here.

“identify the testimony he found not credible,” and “link that testimony to the particular parts of

the record supporting his non-credibility determination.” Brown-Hunter, 806 F.3d at 494.

The ALJ failed to do so here. The ALJ noted Plaintiff’s testimony about left shoulder

limitations, but did not identify what objective medical evidence undermined it. Tr. 21-22. He

discounted State agency medical opinions about Plaintiff’s inability to reach overhead with his

left arm, but never addressed Plaintiff’s own testimony about this limitation. That leaves this

reviewing court to surmise what “particular parts of the record support[ed the ALJ’s] non-

credibility determination.” Brown-Hunter, 806 F.3d at 494. Failure to provide such clear analysis

is error, and thus the ALJ did not provide a sufficiently clear and convincing reason for

discounting Plaintiff’s symptom testimony about this limitation.

II. Medical Opinion Evidence

When evaluating medical opinion evidence for claims filed on or after March 27, 2017,

ALJs must apply 20 C.F.R. § 404.1520c for Title II claims and 20 C.F.R. § 416.920c for Title

XVI claims. Under these regulations, ALJs no longer “weigh” medical opinions, but rather

determine which are most “persuasive.” 20 C.F.R. §§ 404.1520c(a)-(b), 416.920c(a)-(b). To that

end, controlling weight is no longer given to any medical opinion. Revisions to Rules, 82 Fed.

Reg. at 5867-68; see also 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, the Commissioner

evaluates the persuasiveness of medical opinions based on (1) supportability, (2) consistency, (3)

relationship with the claimant, (4) specialization, and (5) other factors, such as “evidence

showing a medical source has familiarity with the other evidence in the claim or an

understanding of our disability program’s policies and evidentiary requirements.” 20 C.F.R.

§§ 404.1520c(a), (c)(1)-(5), 416.920c(a), (c)(1)-(5).

The factors of “supportability” and “consistency” are considered to be “the most

important factors” in the evaluation process. 20 C.F.R. §§ 404.1520c(c), 416.920c(c).

Supportability means the extent to which a medical source supports the medical opinion by

explaining the “relevant . . . objective medical evidence.” Woods v. Kijakazi, 32 F.4th 785, 791–

92 (9th Cir. 2022) (citing 20 C.F.R. § 404.1520c(c)(1)). Consistency means the extent to which a

medical opinion is “consistent . . . with the evidence from other medical sources and nonmedical

sources in the claim.” Id. (citing 20 C.F.R § 404.1520c(c)(2)).

An ALJ must articulate how persuasive the ALJ finds the medical opinions and explain

how the ALJ considered the supportability and consistency factors. 20 C.F.R. §§ 404.1520c(a),

(b), 416.920c(a), (b); see Tyrone W. v. Saul, No. 3:19-CV-01719-IM, 2020 WL 6363839, at *7

(D. Or. Oct. 28, 2020). “The ALJ may but is not required to explain how other factors were

considered, as appropriate, including relationship with the claimant (length, purpose, and extent

of treatment relationship; frequency of examination); whether there is an examining relationship;

specialization; and other factors, such as familiarity with other evidence in the claim file or

understanding of the Social Security disability program’s policies and evidentiary requirements.”

Linda F. v. Comm’r Soc. Sec. Admin., No. C20-5076-MAT, 2020 WL 6544628, at *2 (W.D.

Wash. Nov. 6, 2020). However, ALJs are required to explain “how they considered other

secondary medical factors [if] they find that two or more medical opinions about the same issue

are equally supported and consistent with the record but not identical.” Tyrone W., 2020 WL

6363839, at *6 (citing 20 C.F.R. §§ 404.1520c(b)(2) and 404.1520c(b)(3)).

Furthermore, the court must continue to consider whether the ALJ’s decision is supported

by substantial evidence. See Revisions to Rules, 82 Fed. Reg. at 5852 (“Courts reviewing claims

under our current rules have focused more on whether we sufficiently articulated the weight we

gave treating source opinions, rather than on whether substantial evidence supports our final

decision.”); see also 42 U.S.C. § 405(g).

Plaintiff argues the ALJ erred by finding the medical opinions of State agency medical

consultants Dr. Davidson and Dr. Alberty only partially persuasive. Pl. Br. 8-15. Both doctors

opined that Plaintiff could never reach overhead or do any overhead work with his left arm. Tr.

88, 95. Both doctors also opined that due to Plaintiff’s medically determinable impairments, he

could only occasionally reach to the front and laterally. Tr. 88, 95.

The ALJ found these opinions unpersuasive “because they are not supported by objective

medical evidence or longitudinal treatment records.” Tr. 22. He first noted the opinion that

Plaintiff could “never” reach overhead or do overhead work was backed up by only “a single

examination suggestive of adhesive shoulder capsulitis” and Plaintiff was being treated

conservatively for it. Tr. 22, 516. With only this to go on, it was reasonable for the ALJ to

conclude that an opinion that Plaintiff should “never” reach overhead with his left arm lacked

significant support from the record.

Addressing consistency, the ALJ noted Plaintiff’s primary care doctor concluded that

Plaintiff could reach in all directions either “frequently” or “constantly,” just one month after

Plaintiff’s symptoms were found to be suggestive of adhesive capsulitis. Tr. 22-23, 516-18, 764-

65. Such evidence was inconsistent with a blanket limitation on overhead reaching, and it was

reasonable for the ALJ to rely on this inconsistency to partially discount the State agency

doctors’ opinions. Because the ALJ considered both the consistency and supportability of the

State agency medical doctors’ opinions, and supported his conclusions with substantial evidence,

the ALJ did not err in finding them only partially persuasive.

III. Step Five

Finally, Plaintiff argues the ALJ erred by failing to identify a sufficient number of jobs he

could actually perform that exist in the national economy. Pl. Br. 15-16. Plaintiff’s step five

arguments depend on his testimony about difficulty reaching with his left hand and need for a

one-hour rest during the day. Id. (citing, Tr. 61-62). Because this case is being remanded with

instructions for the ALJ to reconsider this testimony, it is unnecessary to decide whether the jobs

the Commissioner identified at step five satisfied his burden.

IV. Remand

Within the Court’s discretion under 42 U.S.C. § 405(g) is the “decision whether to

remand for further proceedings or for an award of benefits.” Holohan, 246 F.3d at 1210.

Although a court should generally remand to the agency for additional investigation or

explanation, a court has discretion to remand for immediate payment of benefits. Treichler v.

Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099-100 (9th Cir. 2014). The issue turns on the

utility of further proceedings. A court may not award benefits punitively and must conduct a

“credit-as-true” analysis on evidence that has been improperly rejected by the ALJ to determine

if a claimant is disabled under the Social Security Act. Strauss v. Comm’r of the Soc. Sec.

Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).

In the Ninth Circuit, the “credit-as-true” doctrine is “settled” and binding on this Court.

Garrison v. Colvin, 759 F.3d 995, 999 (9th Cir. 2014). The court first determines whether the

ALJ made a legal error and then reviews the record as a whole to determine whether the record is

fully developed, the record is free from conflicts and ambiguities, and there is any useful purpose

in further proceedings. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015). Only if the

record has been fully developed and there are no outstanding issues left to be resolved does the

district court consider whether the ALJ would be required to find the claimant disabled on

remand if the improperly discredited evidence were credited as true. Id. If so, the district court

can exercise its discretion to remand for an award of benefits. Id. The district court retains

flexibility, however, and is not required to credit statements as true merely because the ALJ

made a legal error. Id. at 408.

The ALJ committed harmful error by failing to provide specific, clear, and convincing

reasons to reject Plaintiff’s subjective symptom testimony, as discussed above. After reviewing

the record, however, conflicts and ambiguities remain between the medical record and testimony

regarding whether Plaintiff’s left-arm reaching limitations and need to rest during the day

rendered him totally unable to work during the relevant period. The Commissioner’s decision is

reversed, and this case is remanded for further proceedings so that the ALJ can adequately

evaluate Plaintiff’s testimony, reformulate the RFC if necessary, and seek further VE testimony

at step five if necessary.

CONCLUSION

For the reasons given above, the Commissioner’s decision is reversed and remanded for

further proceedings.

IT IS SO ORDERED.

DATED April 17, 2024.

/s/ Youlee Yim You

_________________________________

Youlee Yim You

United States Magistrate Judge