Barker v. Commissioner of Social Security Administration

          ORDER

          Dominic W. Lanza, United States District Judge.

         INTRODUCTION

         Plaintiff Bradley Barker (“Barker”) seeks review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security (“Commissioner”), which denied his application for disability benefits. For the following reasons, the Court finds that the administrative law judge's (“ALJ”) decision was based on reversible legal error and remands for further proceedings.

         Barker alleges he became disabled in March 2010. (A.R. 39, 179.) In May 2014, Barker filed an application for disability benefits. (A.R. 179-85.) After this claim was denied (A.R. 121-24, 126-27), Barker filed a written request for a hearing. (A.R. 128.) On January 20, 2017, Barker appeared and testified at a video hearing at which an impartial vocational expert also appeared and testified by telephone. (A.R. 33-90.) On June 12, 2017, the ALJ issued a decision that Barker was not disabled within the meaning of the Social Security Act. (A.R. 12-32.) The ALJ's decision became the Commissioner's final decision when the Appeals Council denied Barker's request for review. (A.R. 1-6.)

         LEGAL STANDARD

         The Court addresses only the issues raised by the claimant in the appeal from the ALJ's decision. Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), as amended on reh'g (Aug. 9, 2001). The Court should uphold the ALJ's decision “unless it contains legal error or is not supported by substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence is more than a mere scintilla but less than a preponderance.” Id. Put another way, “[i]t is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (citation omitted). The Court should uphold the ALJ's decision “[w]here evidence is susceptible to more than one rational interpretation, ” but the Court “must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Id. (citations and internal quotation marks omitted).

         “[H]armless error principles apply in the Social Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). “[A]n ALJ's error is harmless where it is inconsequential to the ultimate nondisability determination.” Id. (citations and internal quotation marks omitted). The Court must “look at the record as a whole to determine whether the error alters the outcome of the case.” Id. Importantly, however, the Court may not uphold an ALJ's decision on a ground not actually relied on by the ALJ. Id. at 1121.

         To determine whether a claimant is disabled for purposes of the Social Security Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of proof on the first four steps, and the burden shifts to the Commissioner at step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether the claimant is engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant has a “severe” medically determinable physical or mental impairment. Id. § 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step three, the ALJ considers whether the claimant's impairment or combination of impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. pt. 404. Id. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the claimant's residual functional capacity (“RFC”) and determines whether the claimant is capable of performing past relevant work. Id. § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step, where he determines whether the claimant can perform any other work based on the claimant's RFC, age, education, and work experience. Id. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled.

         BACKGROUND

         At step one, the ALJ found Barker met the insured status requirements of the Social Security Act through December 31, 2014 and had not engaged in substantial gainful activity since March 15, 2010, the alleged onset date. (A.R. 17.) At step two, the ALJ found that Barker had the following severe impairments: deep vein thrombosis (“DVT”), migraine headaches, and obesity. (Id.) The ALJ also found Barker had the following non-severe impairments: degenerative joint disease, obstructive sleep apnea, pancreatitis, Peterson's internal hernia, status-post laparoscopic reduction and repair status-post gastric bypass, hypertension, eczema, jejunal ulcer, hypercoagulable state on Coumadin, and anemia. (A.R. 18.) At step three, the ALJ determined that Barker did not have an impairment or combination of impairments that met or medically equaled the severity of a listed impairment. (A.R. 20.) At step four, the ALJ found that Barker “had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except he can perform only simple, routine tasks secondary to decreased attention and concentration due to headaches.” (A.R. 21.) The ALJ further found that Barker was unable to perform any past relevant work. (A.R. 24.) At step five, the ALJ found that, “considering [Barker's] age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that [Barker] could have performed, ” including document preparer, call-out operator, and escort vehicle driver. (A.R. 24-25.)

         Barker argues the ALJ's decision is defective for three reasons: (1) the ALJ erred in rejecting his symptom testimony; (2) the ALJ erred in weighing treating physician Valerie Guernsey's opinions; and (3) the ALJ erred in his step-five determination. (Doc. 13.)

         As explained below, the Court agrees that the ALJ erred in rejecting Barker's symptom testimony and weighing Dr. Guernsey's opinions and declines to rule regarding the third alleged error.

         I. Whether the ALJ Erred in Rejecting Barker's Symptom Testimony

         A. Legal Standard

         “In assessing the credibility of a claimant's testimony regarding subjective pain or the intensity of symptoms, the ALJ engages in a two-step analysis.” Molina, 674 F.3d at 1112. “First, the ALJ must determine whether there is objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged.” Id. (citations and internal quotation marks omitted). The ALJ found that Barker had satisfied this first step. (A.R. 21 [“[T]he undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms . . . .”].)

         If the first step is satisfied, and “there is no evidence of malingering, then the ALJ must give specific, clear and convincing reasons in order to reject the claimant's testimony about the severity of the symptoms.” Molina, 674 F.3d at 1112 (citations and internal quotation marks omitted). Such testimony can't be rejected simply because it can't be verified by objective medical evidence. 20 C.F.R. § 404.1529(c)(2) (“[W]e will not reject your statements about the intensity and persistence of your pain or other symptoms or about the effect your symptoms have on your ability to work solely because the available objective medical evidence does not substantiate your statements.”). Here, the ALJ did not find there was evidence of malingering, so he was required to provide “specific, clear and convincing reasons” to reject Barker's testimony.

         “A finding that a claimant's testimony is not credible 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.” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (citation and quotation marks omitted). “General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints.” Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (citation omitted); see also Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (“[T]he ALJ must specifically identify the testimony she or he finds not to be credible and must explain what evidence undermines the testimony.”).

         B. ...