United States District Court, D. Arizona
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.
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