Arizona Cases March 20, 2023: McConnell v. Comm'r of Soc. Sec. Admin.

Case Description

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REPORT AND RECOMMENDATION

Honorable Bruce G. MacDonald, United States Magistrate Judge

Plaintiff Joseph Anthony McConnell (“Plaintiff” or “McConnell”) brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision by the Commissioner of Social Security (“Commissioner). The matter was referred to the undersigned for Report and Recommendation and is ripe for review. (Doc. 1, 14, 19, 20, 21.)

Based on the pleadings and the administrative record (“AR”), the Magistrate Judge recommends the District Court reverse, and the matter be remanded for further proceedings consistent with this report and recommendation.

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I.BACKGROUND

McConnell was born on February 18, 1962. (AR 91.) At the time of filing the present application, McConnell was 57 years old, or an individual of advanced age in the eyes of the administration. (AR 203.) He is a veteran having served in the Navy from July 22, 1981, through July 19, 1985, receiving an honorable discharge. (AR 30, 223, 4393.) He earned a GED in the Navy (AR 30, 4392) and completed one year of college for computer classes. (AR 242, 4455.) McConnell lives alone and participates in the HUD-VASH program for rental assistance (AR 36, 207.) He receives Supplemental Nutrition Assistance Program (SNAP) benefits. (AR 223.) He volunteers at a local church helping with food and waters the plants twice a week. (AR 34, 48.)

McConnell experiences muscle aches and numbness and tingling in his legs and feet. (AR 49.) He also experiences headaches and ear problems [tinnitus] with pain (AR 52), a fibromyalgia-type condition (AR 53), on December 23, 2020, this condition was isolated as chronic myofascial pain (AR 1390), anxiety (AR 53), with heart palpitations (AR 54), rashes (AR 54), cirrhosis of the liver and portal hypertension (AR 54), stomach and bowel problems, id ., and inconsistent sleep patterns (AR 55).

McConnell reports a history of physical and sexual abuse as an adolescent. (AR 4922.) He reports witnessing a friend in the Navy commit suicide and witnessing two other friends in the Navy fall from a boat to their tragic deaths and McConnell continues to have nightmares

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about these experience one to two times per month. (AR 4922.) McConnell also reports occasionally experiencing intrusive thoughts about these experiences. Id . McConnell has a history of suicide attempts, including but not limited to, a documented overdose in 1993, and by attempting to cut his wrists in 2002. (AR 4922.) McConnell has a history of DUI and incarceration. (AR 4924.) McConnell has experienced homelessness (AR 4925), and no less than 27 admissions for Inpatient Psychiatric Care. (AR 4922.) Historically, medical records from as early as 2004 reflect McConnell's reports of anxiety and depression, panic attacks, and nightmares, related to previous trauma and abuse. (AR 4925.) Records of his past medical history include chronic Hepatitis C, PTSD, panic disorder, with alcohol, opioid and tobacco dependence. (AR 1342.)

Alcohol and drugs have been problems for McConnell in the past and he is currently maintaining abstinence through psychiatric treatment and care. (AR 34.) McConnell went through a drug and alcohol-related treatment program through the Veterans Administration (VA), with success, and continues to participate in random, monthly, urinalysis screening as part of his continued Suboxone treatment. (AR 34.)

Since the alleged date of onset, August 28, 2018, Plaintiff has been admitted to the Emergency Department of the VA, no less than the following: October 17, 2018 (“detox” and “suicidal ideation”) (AR 475), January 6, 2019 (“Panic Attack”) (AR 336); February 20, 2019

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(“Panic Attack”) (AR 354); March 3, 2019 (“Panic Attack”) (AR 717); March 18, 2019 (“Panic Attack”) (AR 699); July 10, 2019 (“Anxiety” “Fear of Relapse”) (“The patient reports that he has one or two episodes of severe anxiety each month that last from 4-48 hours.”) (AR 471). Historically, McConnell was treated with Suboxone 8 mg. and Gabapentin 300 mg. through the VA for approximately seven (7) or eight (8) years. (AR 5031.)

According to early VA records, in 2004, Staff Psychiatrist, Christopher Petro, M.D., identified McConnell's diagnoses as follows: Opioid dependence, Alcohol dependence, Polysubstance dependence (cocaine, heroin, marijuana, benzodiazepine), Panic Disorder, with possible Agoraphobia, MDD [Major Depressive Disorder] vs. Substance-Induced mood do vs. Dysthymic DO, PTSD from childhood trauma and military trauma. (AR 4938-4939.) The cumulative VA records-prior to transfer of McConnell's mental health treatment to La Frontera-reflect McConnell's relevant conditions to include, inter alia : Panic disorder without agoraphobia, Opioid dependence, PTSD, Personality disorder, alcohol dependence, polysubstance dependence, drug-induced mood disorder, Moderate major depression (Major depressive disorder, recurrent, moderate), and Adjustment Disorder. (AR 1281-1294) (AR 32-33).

In early 2020, in addition to the VA, McConnell was also treated by an outside psychiatrist, Rodric Falcon (Falcon), and an associated psychologist, through La Frontera, for PTSD and anxiety, and was prescribed Lorazepam (a.k.a. Ativan) (Benzodiazepine) and Zolpedim (a.k.a. Ambien) (AR 1342, 5020.) Additional medications, prescribed by Falcon,

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include Prozac 20 mg., and Abilify 5 mg. (AR 1342, 4970.) Individual therapy notes from February of 2020 reflect “Client said he has passing thoughts of suicide, but that he does not have a plan and is too afraid to try.” (AR 1372.)

On May 13, 2020, Plaintiff's Suboxone treatment was transferred from the VA and restarted at HOPE Center through La Frontera, James McGlamery. (AR 4962, AR 5028, 5021, 5040, 5047.) McConnell currently treats his mental health with a team through La Frontera (AR 49, 4990.) As part of his treatment program, McConnell participates in random drug screens, and sees a Recovery Coach once a month. (AR 4977, 5009.) After McConnell's mental health treatment was transferred from the VA to La Frontera records, on or around May 12, 2020 McConnell's diagnoses include:

• F11.20 Opioid use disorder, moderate (primary)

• F11.20 Opiate dependence (secondary)

• F11.20 Continuous opioid dependence (secondary)

• F11.21 Opioid use disorder, severe, in sustained remission, on maintenance therapy (secondary)

• F41.1 GAD (generalized anxiety disorder) (secondary)

• F43.10 Post-traumatic stress disorder (secondary)

• G89.4 Chronic pain disorder (secondary)

• M06.9 Rheumatoid arthritis (secondary)

• S04.60XA Injury of acoustic nerve (VIII) (secondary)

• Z73.3 Stress, not elsewhere classified (secondary)

(AR 4973.) Although McConnell has participated in individual and group therapy at the VA and continues to do so at La Frontera, records reflect missed appointments, and an expressed disinterest in therapy. (AR 4984, 4986, 4997, 5006.) In June of 2020, McConnell was referred to a Neurologist and Rheumatology to address fatigue and pain. (AR 5018.)

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Plaintiff's mental health records in early June 2020, report symptoms are under control via medication, however not yet stable on Suboxone and feels he would like to go up. (AR 4987.) In mid-June 2020, Plaintiff reports doing well on a therapeutic dose. (AR 4988.) In July 2020, Plaintiff reports stable on Suboxone. (AR 4990.) In September of 2020, drug screens are free of illicit drugs. (AR 4993.) La Frontera reports Plaintiff's current medications to include, Gabapentin 300 mg. and Suboxone 8 mg.-2 mg. (AR 4973), and from non-LFC prescribers, ranitidine, sennosides, and propranolol (AR 4957.) In December of 2020, McConnell began treatment with Yuri Chaves Martins, MD with Banner Health - Pain Management and was prescribed Tizanidine 4 mg. to address chronic myofascial pain. (AR 1390.) In January 2021, Plaintiff reports wanting to decrease the amount of Suboxone. (AR 5004.)

Depression, anxiety, and related symptoms are the conditions McConnell reports prevent him from holding a job. (AR 34.) McConnell's July 24, 2019 Application alleges disability due to the following illnesses, injuries, or conditions: PTSD, Personality Disorder, Behavior Disorder, Major Depressive Disorder, Anxiety, Suicidal, with onset date of August 28, 2018. (AR 91-92.)

A. First Application -

Previously, on April 27, 2016, McConnell filed an application for Title XVI (SSI) benefits and that claim was denied on August 27, 2018. (AR 15, 70-84.) In his Disability Report, the claimant asserted that he is unable to perform substantial gainful activity due to PTSD, chronic anxiety disorder with agoraphobia, clinical depression, and hepatitis C (Ex. B1E). (AR 77.) A hearing was held before an ALJ on May 22, 2018. (AR 27-40.)

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Plaintiff was represented by Fred J. Fleming. (AR 73.) After the 2018 hearing, the ALJ indicated he would send Mr. McConnell for a psychological “CE” (Consultative Examination) (AR 38), and because of this, the vocational expert who appeared telephonically at the hearing, Carmen Roman, did not testify, nor was any testimony solicited regarding Plaintiff's ability to sustain other work (AR 39.) The August 27, 2018 ALJ Decision, however, did include the findings regarding the subsequent Consultative Examination of Plaintiff with Noelle Rohen, Ph.D who diagnosed Plaintiff with persistent depressive disorder, dysthymic pattern. (AR 80)

B. Second Application -

On July 24, 2019, McConnell protectively filed an application for supplemental security income benefits under Title XVI (SSI), alleging a disability onset date of August 28, 2018. (AR 14, 202.) McConnell's claim was denied initially and on reconsideration. (AR 91-105) (AR 108-126) (AR 14, 106, 107). A hearing was held before an Administrative Law Judge (“ALJ”) on February 19, 2021, telephonically, due to COVID-19 Pandemic. (AR 14, 41-65.) Plaintiff was represented by Jeremy W. Killpack. (AR 49.) In a decision dated March 8, 2021, the ALJ determined McConnell was not disabled. (AR 11-26.) The ALJ's 2021 findings:

1. The claimant has not engaged in substantial gainful activity since July 24, 2019, the application date (20 CFR 416.971 et seq.).

2. The claimant has the following severe impairment: post-traumatic stress disorder (PTSD) and anxiety disorder. (20 CFR 416.920(c)).

3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).

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4. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: he is limited to tasks that can be learned in one to three months on the job. He can work in coordination with, or in proximity to, others without being unduly distracted or exhibiting behavioral extremes. He can interact minimally with the public, that is, necessary contact with the public or customers is no more than occasional.

5. The claimant has no past relevant work (20 CFR 416.965).

6. The claimant was born on February 18, 1962 and was 57 years old, which is defined as an individual of advanced age, on the date the application was filed (20 CFR 416.963).

7. The claimant has at least a high school education (20 CFR 416.964).

8. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 416.968).

9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969(a)).

10. The claimant has not been under a disability, as defined in the Social Security Act, since July 24, 2019, the date the application was filed (20 CFR 416.920(g)).

(AR 17-22.) The ALJ determined, “based on the testimony of the vocational expert,” “the claimant is capable of making a successful adjustment to other work that exists in significant numbers in the national economy” and found claimant “not disabled.” (AR 22.) Based on the ALJ's hypothetical, the Vocational Expert, Michael Frank, testified to representative occupations of:

1) Cleaner II , medium, unskilled work, requiring specific vocational preparation (SVP);

2) Industrial cleaner , medium, unskilled work requiring SVP;

3) Kitchen helper , medium, unskilled requiring SVP.

(AR 22.) On September 17, 2021, the Appeals Council denied review thus making the ALJ's decision final for judicial review. (AR 1-6.) See 42 U.S.C. §§ 405(g), 1383(c)(3).

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II. STANDARDS OF REVIEW

A claimant is "disabled" for the purpose of receiving benefits if she is unable to engage in any substantial gainful activity due to an impairment which has lasted, or is expected to last, for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a). “The claimant bears the burden of establishing a prima facie case of disability.” Roberts v. Shalala , 66 F.3d 179, 182 (9th Cir. 1995), cert. denied , 517 U.S. 1122 (1996); Smolen v. Chater , 80 F.3d 1273, 1289 (9th Cir. 1996).

Pursuant to 42 U.S.C. § 1383(c)(3), “The final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) [ ] to the same extent as the Commissioner's final determinations under section 405 of this title.” 42 U.S.C. § 1383(c)(3). “The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive[.] 42 U.S.C. §§ 405(g). “The judgment of the court shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions.” 42 U.S.C. § 405(g). This Court may “set aside the Commissioner's denial of disability insurance benefits when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel , 180 F.3d 1094, 1097 (9th Cir. 1999).

Substantial evidence is “‘more than a mere scintilla[,] but not necessarily a preponderance.'” Tommasetti v. Astrue , 533 F.3d 1035, 1038 (9th Cir. 2008). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support

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a conclusion.” Parra v. Astrue , 481 F.3d 742, 746 (9th Cir. 2007). Where “the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Tackett , 180 F.3d at 1098. Moreover, the court may not focus on an isolated piece of supporting evidence, rather it must consider the entirety of the record weighing both evidence that supports as well as that which detracts from the Secretary's conclusion. Id. The ALJ alone is responsible for determining credibility, and for resolving ambiguities. Meanel v. Apfel , 172 F.3d 1111, 1113 (9th Cir. 1999). “[A]n ALJ ‘need not discuss all evidence presented[.] Rather, [the ALJ] must explain why significant probative evidence has been rejected.'” Kilpatrick v. Kijakazi , 35 F.4th 1187, 1193 (9th Cir. 2022). The ALJ follows a five-step process set forth below.

A. Legal Framework - The Five-Step Evaluation

1) whether the person is engaging in substantial gainful activity;

2) severity of alleged medically determinable physical or mental impairment;

3) whether the impairment meets or equals a listed impairment in 20 C.F.R. Ch. III, Pt. 404, Subpt. P, apps.and meets the duration requirement;

4) consideration of claimant's residual functional capacity and whether the individual is capable of doing work he or she has done in the past;

5) assessment of claimant's residual functional capacity, age, education, and work experience and whether the impairment prevents the person from doing any other work.

20 C.F.R. § 404.1520(a)(4). “A finding of ‘disabled' under the five-step inquiry does not automatically qualify a claimant for disability benefits.” Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir.2001). Under 42 U.S.C. § 423(d)(2)(C), a claimant cannot receive disability benefits “if alcoholism or drug addiction would ... be a contributing factor material to the

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Commissioner's determination that the individual is disabled.” Parra v. Astrue , 481 F.3d 742, 746 (9th Cir. 2007).

B. Administrative Res Judicata

1. Presumption Rebutted Under Chavez v. Bowen SSAR 97-4(9)

“The principles of res judicata apply to administrative decisions, although the doctrine is applied less rigidly to administrative proceedings than to judicial proceedings.” Chavez v. Bowen , 844 F.2d 691, 693 (9th Cir. 1988). “The claimant, in order to overcome the presumption of continuing non-disability arising from the first administrative law judge's findings of non-disability, must prove “changed circumstances” indicating a greater disability.” Chavez v. Bowen , 844 F.2d 691, 693 (9th Cir. 1988).

2. Changed Circumstances

“Following the Ninth Circuit's ruling in Chavez, the Social Security Administration (“SSA”) adopted Acquiescence Ruling 97-4(9) to explain how the SSA will apply Chavez within the Ninth Circuit.” SSAR 97-4(9), 1997 WL 742758 (Dec. 3, 1997).

The ruling applies “only to cases involving a subsequent disability claim with an unadjudicated period arising under the same title of the Act as a prior claim on which there has been a final decision by an ALJ or the Appeals Council that the claimant is not disabled. Id. *3. The ruling directed adjudicators to follow a two-step inquiry. Id. First , adjudicators must apply a presumption of continuing non-disability. A “claimant may rebut this presumption by showing a “changed circumstance” affecting the issue of disability with respect to the unadjudicated period.” Id. Second , if the claimant rebuts the presumption, adjudicators must give effect to certain findings “contained in the final decision by an ALJ or the Appeals Council on the prior claim, when adjudicating the subsequent claim,” including the findings of a claimant's residual functional capacity, education, or work experience. Id. “Adjudicators must adopt such a

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finding from the final decision on the prior claim in determining whether the claimant is disabled with respect to the unadjudicated period unless there is new and material evidence relating to such a finding [.]” Id.

Schreier v. Astrue , 2009 WL 4757242, at *4 (D. Nev. Dec. 10, 2009) (emphasis added).

For this purpose, this Ruling applies only to a finding of a claimant's residual functional capacity, education, or work experience , or other finding required at a step in the sequential evaluation process for determining disability provided under 20 CFR 404.1520, 416.920 or 416.924, or a finding required under the evaluation process for determining disability provided under 20 CFR 404.1578, as appropriate, which was made in the final decision on the prior disability claim. Adjudicators must adopt such a finding from the final decision on the prior claim in determining whether the claimant is disabled with respect to the unadjudicated period unless there is new and material evidence relating to such a finding or there has been a change in the law, regulations or rulings affecting the finding or the method for arriving at the finding.

Chavez v. Bowen; Effect of A Prior Final Decision That A Claimant Is Not Disabled, & of Findings Contained Therein, on Adjudication of A Subsequent Disability Claim Arising Under the Same Title of the Soc. Sec. A , AR 97-4(9) (SSAR 97-4(9)) (S.S.A. Dec. 3, 1997) (emphasis added).

3. Posture

The March 8, 2021 ALJ Decision states, in error, Plaintiff filed under Title II:

In April 2016, the claimant filed an application for Title II benefits. That claim was denied by an Administrative Law Judge on August 27, 2018. Before me now is the claimant's application for Title II benefits, filed on July 24, 2019.

(AR 15) (italics added). Plaintiff filed for Title XVI benefits, according to the July 24, 2019 Application. (AR 203.)

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The Court FINDS that despite the ALJ's reference to Title II in the ALJ Decision dated March 8, 2021 (AR 15), Plaintiff's Application dated July 24, 2019, was instead filed under Title XVI, therefore the Acquiescence Ruling 97-4(9) (SSAR 97-4(9)) and the Chavez presumption of non-disability arises because Plaintiff's April 2016 Application and July 24, 2019 Application were both filed under Title XVI.

The March 8, 2021 ALJ Decision acknowledged that Plaintiff had filed an earlier claim for Social Security disability benefits resulting in a final opinion denying benefits on August 27, 2018. (AR 15.) The ALJ's 2021 Decision found “[t]he claimant's worsened mental impairments constitute changed circumstances .” (AR 15) (emphasis added). Accordingly, the ALJ's finding of changed circumstances, in other words, means that Plaintiff has rebutted the presumption of non-disability under Chavez; therefore under SSAR 97-4(9), the ALJ must adopt the residual function capacity finding or other finding(s) required at a step in the sequential evaluation process unless there is new and material evidence relating to such a finding or there has been a change in the law, regulations or rulings affecting the finding or the method for arriving at the finding. SSAR 97-4(9) (emphasis added).

4. Revised Medical Criteria for Evaluating Mental Disorders

In 2017, between Plaintiff's First Application alleged onset date of January 20, 2016, and Plaintiff's Second Application alleged onset date of August 28, 2018, the Social Security Administration entered Revised Medical Criteria for Evaluating Mental Disorders with the following changes relevant to the case at bar.

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• In cases of alleged mental impairment in which a substance use disorder is involved, we will evaluate the person's mental impairment, as appropriate, under the mental disorder listing for the involved condition (for example, depressive , bipolar and related disorders; schizophrenia spectrum and other psychotic disorders), and according to the guidelines in SSR 13-2p . https://www.federalregister.gov/d/2016-22908/p-158 .

• The Administration added a separate Listing 12.15 for Trauma - and Stressor-Related Disorders that were previously addressed under Listing 12.06 Anxiety-related Disorder. https://www.federalregister.gov/d/2016-22908/p-289 .

• The Administration removed Listing 12.09 Substance Addiction Disorders reasoning “we use other listings to evaluate the physical or mental effects of substance use (for example, liver damage, peripheral neuropathy, or dementia).” https://www.federalregister.gov/d/2016-22908/p-185 .

Removal of Listing 12.09 Substance Addiction Disorders, however, does not preclude an ALJ from finding that a claimant's substance abuse is a medically determinable impairment, but, would then require additional analysis. As stated by the Administration:

• “Furthermore, if a claimant's substance use is a medically determinable impairment and is material to a finding that the claimant is disabled, then we must find that the claimant is not disabled.” https://www.federalregister.gov/d/2016-22908/p-186 .

After the 2017 revisions, the Listing of Impairments for 12. Mental Disorders advised:

I. How do we evaluate substance use disorders? If we find that you are disabled and there is medical evidence in your case record establishing that you have a substance use disorder, we will determine whether your substance use disorder is a contributing factor material to the determination of disability (see §§ 404.1535 and 416.935 of this chapter).

20 C.F.R. § Pt. 404, Subpt. P, App. 1.

5. Res Judicata Effect of Plaintiff's Depression and Polysubstance Abuse

According to Chavez and SSAR 97-4(9), and as found in the case at bar , when a claimant rebuts the presumption of non-disability from a previous decision, the ALJ must give effect to certain findings contained in the final decision on the prior claim when adjudicating the

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subsequent claim and adopt such finding(s) on the prior claim in determining whether the claimant is disabled, unless there is new and material evidence relating to such a finding.

Here, the ALJ's 2021 Decision, made a finding of changed circumstances as follows, “I have considered medical and vocational evidence to determine whether there are such ‘changed circumstances' in this case,” and the ALJ found “[t]he claimant's worsened mental impairments constitute changed circumstances.” (AR 15.)

a. Plaintiff's Depression

Here, germane to the Chavez presumption analysis, and Plaintiff's depression, the ALJ must adopt the other findings required at a step in the sequential evaluation process unless there is new and material evidence relating to such a finding. In 2018, the ALJ found Plaintiff had a medically determinable impairment of depressive disorder. In 2021, the ALJ found claimant's “worsened mental impairments” constitute ‘changed circumstances,' however, failed to include depressive disorder as a medically determinable impairment as found by the first decision, and failed to address any new and material evidence for the decision to not adopt the previous finding of the medically determinable impairment of depression. Despite the 2021 ALJ's finding of changed circumstances specific to “worsened mental impairments,” the ALJ, does not address depression until the discussion of plaintiff's continued symptoms of depression in the record. This constitutes error.

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b. Plaintiff's Polysubstance Abuse

Here, germane to the Chavez presumption analysis, and Plaintiff's substance abuse issue, in the first decision, the 2018 ALJ provides, in pertinent part:

Treatment records noted the claimant's MDD [Major Depressive Disorder] was chronic, stable, moderate control; panic disorder with agoraphobia was chronic, stable, moderate control; opiate use disorder was chronic, stable, in sustained remission; benzodiazepine use disorder was chronic, stable, episodic use; and PTSD was chronic, stable, moderate control (e.g., Ex. B1F/115, 164, 188, 204, B2F/48, 205, B3F/742, 846, 1185, and 1415).

(AR 78) (Exh. C2A at 9) (emphasis added). The 2018 ALJ further found:

The record shows the claimant has a history of substance abuse. Treatment records noted assessments for opioid use disorder and alcohol use disorder (e.g., Ex. B3F/1494; B4F/128 and B6F/4). Although claimant has a history of substance abuse, the undersigned funds that it is not a contributing factor material to the determination of disability because his medically determinable mental impairments are not severe .

(AR 79) (Exh. C2A at 10) (emphasis added). However, in the subsequent decision, the 2021 ALJ made findings of “ severe ” impairments, i.e ., PTSD and anxiety disorder . (AR 17.) In addition, the ALJ's 2021 Decision, provides:

The claimant has also been diagnosed with polysubstance abuse disorder . (C1F p. 8). However, the record does not show it causing more than minimal limitations lasting 12 months or more since the alleged onset date. Accordingly, it is not a severe impairment in this case.

(AR 17) (emphasis added).

However, the 2021 ALJ does not address the finding made in the 2018 Decision regarding opioid use disorder and alcohol use disorder or address any new and material evidence under Chavez and SSAR 97-4(9) for not adopting the previous findings related to Plaintiff's

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polysubstance abuse disorder or whether there has been a change in the law, regulations or rulings affecting the finding or the method for arriving at the finding, notwithstanding the ALJ's finding Plaintiff's polysubstance abuse disorder “does not show it causing more than minimal limitations last 12 months or more since alleged onset date.” This is error.

Notably, after Plaintiff's hospital admission October 17, 2018 (C1F p. 8), according to the “Hospital Course and Pertinent Findings of Laboratory and Radiological Data”:

Veteran was place on COWS on admission. Restarted on his Suboxone which significantly improved his withdrawal symptoms. Increased PRN Benadryl to what he was taking at home. Started on Melatonin with improvement in sleep. Veteran participated in CBT and motivational interviewing during this hospitalization. There were no major behavioral issues. Upon DC he did endorse depressed mood but denied SI/HI/AH/VH; not thought to be above his baseline risk of suicide (see below). +cravings; stated had Vicodin at home he was going to give to the chaplains here. Veteran is highly like to re-present under similar circumstances should he continue to abuse opiates.

* * *

Overall Risk Assessment Formulation: Imminent risk is moderate . Chronic risk is moderate to high . Veteran is not currently above his baseline risk of suicide at this time.

(AR 477) (emphasis added).

III. ISSUES ON REVIEW

Plaintiff raises, “the ALJ failed to articulate clear and convincing reasons or reasons supported by substantial evidence to discount Mr. McConnell's statements about the intensity, persistence, and limiting effects of his symptoms.” (Doc. 19 at 2.) In addition, Plaintiff submits

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the ALJ's reliance on mental status exams is insufficient to discredit McConnell's symptom testimony. (Doc. 19 at 10.) (AR 298.) The Commissioner submits Plaintiff's challenges-to the ALJ's findings discounting Plaintiff's subjective symptom testimony-fail under the deferential standard on review and cites to Ford v. Saul , 950 F.3d 1141, 1159 (9th Cir. 2020). As more fully explained below, this Court agrees with Plaintiff. Accordingly, this Court recommends that the decision of the ALJ be remanded to further develop the record in accordance with this Order.

A. “Medically Determinable Impairments”

In 2018, the ALJ's Decision found two non-severe medically determinable impairments:

2. The claimant has the following medically determinable impairments: posttraumatic stress disorder and depressive disorder (20 CFR 416.921 et seq.)

(AR 75.) In addition, the previous unfavorable decision dated August 27, 2018, includes a post-hearing Consultative Examination Report by Noelle Rohen, Ph.D. (AR 38, 79, 84.) The August 27, 2018 ALJ Decision, provides in pertinent part:

The claimant underwent a psychological consultative examination with Noelle Rohen, Ph.D. in July 2018 (Ex. B6F). Dr. Rohen examined the claimant and diagnosed him with PTSD, persistent depressive disorder , dysthymic pattern , and opioid (heroin and pill) use disorder in sustained full remission. The doctor opined that the claimant had no more than mild limitation in all areas of mental functioning ( Id . at 5-6).

(AR 79) (emphasis added). The 2018 ALJ, Charles Davis, further provided, Dr. Rohen is “a specialist for the Social Security Administration” and is “well-versed in the assessment of functionality as it pertains to the disability provisions of the Social Security Act, as amended.” (AR 80.) The ALJ's August 27, 2018 gave Dr. Rohen's opinion great weight. Id .

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The ALJ's 2021 Decision found two (2) severe impairments, as follows:

2. The claimant has the following severe impairment[s]: post-traumatic stress disorder (PTSD) and anxiety disorder. (20 CFR 416.920(c))

The above medically determinable impairments significantly limit the ability to perform basic work activities as required by SSR 85-28 .

(AR 17.) Despite finding two severe impairments, the 2021 ALJ's Decision found the Plaintiff does not have an impairment or combination of impairments that meet one of the Listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (AR 17), and found Plaintiff had the residual functional capacity to perform a full range of work at all exertional levels but with the following non-exertional limitations:

He is limited to tasks that can be learned in one to three months on the job. He can work in coordination with, or in proximity to, others without being unduly distracted or exhibiting behavioral extremes. He can interact minimally with the public that is, necessary contact with the public or customers is no more than occasional.

(AR 19.)

When a claimant has medically determinable impairments, an ALJ considers four broad areas of mental functioning set out in the disability regulations for evaluating mental disorders

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and in section 12.00C of the Listing of Impairments (20 CFR, Part 404, Subpart P, Appendix 1). These four broad areas of mental functioning are known as the “paragraph B” criteria, in conjunction with the five-point rating scale of a) no limitation; b) Mild limitation; c) Moderate limitation; d) Marked limitation; and e) Extreme limitation, and in pertinent part:

1. Understand, remember, or apply information (paragraph B1).

2. Interact with others (paragraph B2).

3. Concentrate, persist, or maintain pace (paragraph B3).

4. Adapt or manage oneself (paragraph B4).

20 CFR, Part 404, Subpart P, Appendix 1.

B. Plaintiff's Symptoms Corroborated by Objective Medical Evidence

Plaintiff submits, “[T]he ALJ's Decision neglected to consider that McConnell “presented at the emergency department for acute anxiety symptoms (AR 471-472).” (Doc. 19 at 11.) Plaintiff's reference is to McConnell's July 10, 2019 hospital admission,

The patient was admitted on 7/10/19 chiefly for suicidal ideation secondary to severe anxiety. Upon further questioning the patient stated that he had lied about his suicidal intent and instead sated that he had only thought about dying recently but had not actually considered it. His chief concern was that he was feeling extremely anxious and was afraid of relapsing into heroine to control his anxiety like he did last year.

(AR 471.) Contrary to Plaintiff's assertion, the ALJ does cite to records from the July 10, 2019 hospital admission, albeit to support evidence of Plaintiff's mental status exams, it appears the ALJ neglects to indicate the substance of the records as a hospital admission.

Plaintiff further submits the ALJ misapplied the SSR 16-3p for evaluating Plaintiff's symptoms. (Doc. 19 at 6-7.)

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The ALJ's 2021 Decision, in pertinent part,

After careful consideration of the evidence, I find that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.

(AR 19.) The 2021 ALJ primarily relies on Plaintiff's mental status exams from 2020- after Plaintiff became somewhat stabilized on his Suboxone treatment ( see “Background” herein, supra )-and cites to C6F pp. 33, 48, 56; C10F pp. 794, 800, 809, 824; 11F p. 8. (AR 20.) The 2021 ALJ adds, “At times the claimant became tearful, but his mental status was otherwise benign. (C10F p. 794).” (AR 20.)

At Step One, under SSR 16-3p, regarding medically determinable impairments based on objective medial evidence, when evaluating symptoms, the ALJ's 2021 Decision neglected to include Major Depression as one of Plaintiff's medically determinable impairments, despite the inclusion of depressive disorder as a medically determinable impairment in the prior August 27, 2018 Decision, as discussed supra . (AR 17, AR 75.) In addition, as discussed, supra , the ALJ erred in finding the record regarding Plaintiff's polysubstance abuse disorder, “does not show it causing more than minimal limitations lasting 12 months or more since the alleged onset date.”

The 2021 ALJ did not make a finding of malingering.

At Step Two, in evaluating the intensity and persistence of Plaintiff's symptoms to determine the extent to which Plaintiff's symptoms limit his ability to perform work-related

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activities, the ALJ's 2021 Decision considered the objective medical evidence as follows. The ALJ noted, according to the record, “The claimant has been diagnosed with PTSD and anxiety disorder. (C3F p. 107).” (AR 19.) The ALJ's citation to C3F p. 107, as support for the ALJ's determination of Plaintiff's diagnoses, is a reference to Plaintiff's in-patient discharge summary for an incident occurring October 17, 2018. (AR 475.) In pertinent part, the Discharge Summary from the VA hospital included the following diagnoses: “Discharge Diagnoses: #Opioid Use Disorder, severe w/ withdrawal, # PTSD, # Unspecified Depressive Disorder, # Tobacco Use Disorder.” (AR 475.) Despite the records reflecting a “Discharge Diagnosis” of “Unspecified Depressive Disorder,” and the absence of anxiety disorder; the ALJ did not include a diagnosis of depressive disorder for consideration as a medically determinable impairment, or in evaluating Plaintiff's symptoms, and instead included PTSD and Anxiety disorder. Although the record cited, C3F p. 107 lends support for PTSD, it does not lend support for anxiety disorder, which the ALJ did include in the 2021 Decision.

As reflected by the longitudinal evidence in the record, Plaintiff's mental health status is dependent, in part, on his medication management for his polysubstance abuse disorder, including, but not limited to, his Suboxone treatment. From Plaintiff's October 17, 2018 Emergency Department admission, due in part, to detox because of his relapse into using illicit drugs; and Plaintiff's July 10, 2019 Emergency Department admission, due in part, to anxiety based on his fear of relapse; and then in January 2021 Plaintiff reporting that he is wanting to decrease the amount of Suboxone (AR 5004); it is clear from the record, that Plaintiff's

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polysubstance abuse disorder is lasting 12 months or more since the alleged onset date, contrary to the ALJ's 2021 finding. Although Plaintiff appears to have somewhat recently stabilized since the July 24, 2019 application, without Suboxone treatment, Plaintiff's polysubstance abuse disorder, may resurface. When Plaintiff was admitted October 17, 2018, due in part to relapse, on discharge, the hospital noted:

Overall Risk Assessment Formulation: Imminent risk is moderate . Chronic risk is moderate to high . Veteran is not currently above his baseline risk of suicide at this time.

(AR 477) (emphasis added). As noted, upon Plaintiff's admission October 17, 2018, “Went off Suboxone about 1.5-2 months ago” which resulted in relapse. (AR 475.)

The Court finds the ALJ's reference to this objective medical evidence, a discharge summary from Plaintiff's in-patient, overnight, psychiatric treatment October 17, 2018 (C3F p. 107)-without the ALJ's inclusion of Plaintiff's depressive disorder as a medically determinable impairment-undermines the ALJ's ability to analyze Plaintiff's symptom testimony for depression and therefore does not provide specific, clear, and convincing reasons to discredit Plaintiff's symptom testimony under Garrison, supra .

This is error.

C. Mental Status Exams Insufficient to Discount Plaintiff's Symptoms

Plaintiff raises the ALJ's reliance on mental status exams as insufficient to discredit McConnell's symptom testimony. (Doc. 19 at 10.) (AR 298.) The ALJ's 2021 Decision asserts,

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“However, his mental status exams showed fair insight and judgment and were otherwise within normal limits. (C3F pp. 201, 268; C4F pp. 22, 34; C5F p. 4).” (AR 20).

The ALJ's reference to C3F p. 201 (AR 569), is a record from Plaintiff's Mental Health Inpatient Notes from his July 10, 2019 emergency department admission for anxiety surrounding Plaintiff's fear of relapsing onto illicit drugs; and the ALJ's citation to C3F p. 268 (AR 636) is from Plaintiff's Pharmacy Medication Management Note dated July 3, 2019, for follow up on Plaintiff's Suboxone treatment. The July 3, 2019 entry includes the following note, “Psychiatric: “Positive” [for] Anxiety, PTSD, Depression, Chronic but still problematic, ‘I was supposed to get set up with a Psychologist, but I don't know what's going on with that.'” (AR 636.) The ALJ's reference to C4F p. 22 (AR 1233) is a December 4, 2019 Pharmacy Medication Management Note for Plaintiff's Buprenorphine, with significant events noted as follows:

He has been going to the outside psychiatrist [ ] Falcon who is also not recommending benzos. He is sending veteran to neurology and endocrine. He started Veteran on Prozac yesterday. Veteran is also to see a new therapist this Friday. He moved from his apartment to a new one this month. Veteran given praise for being able to move, get a new psychiatrist [therapist], stopping Zolpidem as well as not going to the ED anymore for benzos!!! He is still having anxiety. Takes Propranolol as needed. He has been using Hydroxizine for sleep more than Benadryl as was recommended. Sleep is the same, he then stated he feels he sleeps better without the Zolpidem. Veteran reports that he stopped Quetiapine. He is hoping to decrease his dose of Suboxone. He denies depression, HI, SI or hopelessness.

(AR 1232.) The ALJ's reference to C4F p. 34 (AR 1245), reflects the following October 31, 2019 mental status exam: “Memory: recent intact; remote intact” and “Insight: fair-poor” and “Judgment: fair-poor.” (AR 1245.) The ALJ's cite to C5F p. 4 (AR 1254), is a “Psychiatric

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Diagnostic Evaluation w/ med serv” with Rodric Falcon at La Frontera dated October 17, 2019. (AR 1252.) According to this record, Plaintiff was referred to Rodric Falcon “by self and ER” for “just crushing anxiety attacks” and Falcon's mental status exam provides, “Judgment: Fair; Insight: Fair; Reliability: Fair” “Memory: intact” “Mood: ‘anxious'.” (AR 1254.)

The ALJ concluded,

Based on the foregoing, I find the claimant has the above residual functional capacity assessment, which is supported by mental status exams showing good mental functioning other than times of exacerbation limiting the claimant's concentration and interactions with others . It is also supported by the findings of the State Medical Consultants.

(AR 21) (emphasis added).

Based on the above, the Court FINDS the ALJ's citation to the record, regarding Plaintiff's mental status examinations, does not consist of clear and convincing reasons supported by substantial evidence to discount McConnell's statements about the intensity, persistence, and limiting effects of his symptoms. The records themselves, viewed in context of Plaintiff's circumstances, rather, reflect Plaintiff's continued struggle to address his PTSD, Depression, Anxiety, and Polysubstance abuse disorder. In fact, despite Plaintiff's allegation of Major Depression included in his July 24, 2019 Application, and as reflected in the ALJ's 2018 Decision, and the record, the ALJ does not address depression as a condition of Plaintiff's until the ALJ's discussion of Plaintiff's symptoms, noting, “He claims he is so anxious and depressed he cannot leave his apartment often. (C3E p. 1) [Function Report].” (AR 19.) Regarding Plaintiff's depression, the ALJ's 2021 Decision further states,

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In October 2018, the claimant reported that depression is the biggest struggle in his life and the [ sic ] he was “stuck” mentally. (1F p. 1). However, he also admitted he had not been taking his prescribed Duloxetine and examinations from near that time showed fair concentration, memory, and judgment and poor insight, (1F p. 1; 3F p. 593 ).

(AR 19.)

Even though the ALJ noted “fair” concentration, memory, and judgment, and “poor” insight, the ALJ includes, “[e]xaminations near that time showed good mental status. (1F p. 1).” (AR 19.) However, the ALJ's citation to 1F p. 1 (AR 300) does not support a finding of “good” mental status, as further reflected below.

• October 2018 In-Patient Psychiatric Care Due to Relapse - The ALJ's citations to 1F p. 1 and 3F p. 593 are Plaintiff's in-patient psychiatric treatment records from Plaintiff's admission to the emergency department due in part to relapse on October 17, 2018. The ALJ notes from this record Plaintiff's “ fair concentration, memory, and judgment and poor insight” to support the ALJ's finding of inconsistency concerning the intensity, persistence and limiting effects of Plaintiff's purported symptoms.

Although the 2021 ALJ relies on the “return to work” (C1F p. 1) (AR 301) in these records to demonstrate inconsistencies in Plaintiff's claims of symptoms, the ALJ failed to mention that the records cited to, i.e ., C3F p. 107 (AR 475), is Plaintiff's in-patient, overnight, stay at a psychiatric facility. The records reflect that Plaintiff, “when asked to elaborate [ ] states that he is referring to his depression as the biggest struggle in his life as it usually leads him to substance use.” (AR 300.) Notably, the “Overall Risk Assessment Formulation” from the October 18, 2018 Discharge Summary provides, “Imminent risk is moderate . Chronic risk is moderate to high . Veteran is not currently above his baseline risk of suicide at this time.” (C3F p. 111) (AR 479).

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The Court finds that the ALJ's reference to fair concentration, memory, and judgment and poor insight found in the records from Plaintiff's October 2018 in-patient psychiatric care does not support a finding of specific, clear, and convincing reasons to discredit Plaintiff's symptom testimony. In addition to the Discharge Summary (AR 472), the Progress Notes (AR 302) from the same incident, October 17, 2018, also reflect that although Plaintiff was cleared to work the next day, the records indicate an Activity Level/Limitation of “as tolerated,” also not mentioned by the ALJ. The fact of the in-patient psychiatric stay, alone, is supportive of Plaintiff's depressive state, and symptoms of anxiety, and perhaps the inability to sustain employment in a competitive work environment, if interrupted with admissions to in-patient facilities necessary to prevent relapse.

• December 4, 2018 Primary Care Physician Note - The ALJ's citation to 1F p. 19 is Plaintiff's Primary Care Physician, Ford M. Strimenos, Progress Note regarding “Dysequilibrium, pain deep to L ear.” (AR 317.) The ALJ's 2021 Decision states, “As detailed below, the vast majority of examinations showed the claimant's memory was intact.” (AR 18.) Additionally, regarding memory, the ALJ stated “The claimant's memory was intact, his attention and concentration were good and his speech was normal. (1F p. 19; 10F p. 510).” (AR 20.)

The above notwithstanding, this same Primary Care Physician's Notes, states, “Insight: fair” and “Judgment: fair.” (AR 318.) In addition, this same note states, “Veteran praised for continued sobriety despite profound anxiety.” (AR 318.) (emphasis added.) Even though this record reflects that Plaintiff's memory is “intact,” the record as a whole does not demonstrate clear and convincing reasons, or reasons supported by substantial evidence, to discount

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Plaintiff's statements about the intensity, persistence, and limiting effects of his symptoms, when Plaintiff's PCP is noting “profound” anxiety.

• December 19, 2018 BHIP Psychotherapy Assessment - The ALJ's citation to 10F p. 510 (AR 1900) regarding Plaintiff's memory “intact,” refers to a mental status exam performed by a non-licensed provider, Robert J. Whiting, practicing under the supervision of a licensed social worker, Angelika (Angela) LoPresti, LCSW and occurring December 19, 2018. (AR 1890.)

Additional entries in this consult request include the following:

Initial Evaluation Summary: [M]cConnell states ‘ I can get into panic attacks and want to be able to manage my anxiety .' Veteran is aware these symptoms are [a]ffecting his quality of life and expressed a desire to receive therapy to learn skills to alleviate these symptoms.

Diagnostic Presentation: [M]cConnell is a good candidate for CBT/anxiety, delivered individually. Veteran's need for therapy is high due to negative consequences experienced in daily life and decreasing the quality of his life overall.

Intervention: This provider will take Veteran's case for individual cognitive behavioral psychotherapy, Veteran to RTC on 1/24/2019 at 1100 to begin treatment sessions

(AR 1901-1902.) (emphasis added.) The ALJ's cite to this record from 2018, 10F p. 510 (AR 1900), as evidence of Plaintiff's memory “intact,” to discredit the Plaintiff's claims of the intensity, persistence, and limiting effects of Plaintiff's symptoms, in the eyes of the Court, “does not provide clear and convincing reasons for doing so” when the same record reflects Plaintiff experiencing panic attacks that are decreasing his quality of life overall and reflects his attempts to seek therapy to treat his symptoms. Smolen v. Chater , 80 F.3d 1273, 1284 (9th Cir. 1996).

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D. Other Evidence

Plaintiff submits that “notably absent is any analysis of any other evidence of record apart from contrary opinion evidence of State Agency medical consultants, which will be present in nearly every case[,]” and cites to Thomas v. Comm'r of Soc. Sec. Admin. , No. CV-20-00382-TUC-RM, 2022 WL 897099, at *6 (D. Ariz. Mar. 28, 2022) (“[T]he Court agrees with Plaintiff that inconsistency with the determination of a State agency medical consultant at the initial or reconsideration level cannot constitute a clear and convincing reason for an ALJ to discount a claimant's symptom testimony, as such inconsistencies exist in virtually every case.”) (Doc. 19 at 8, 10.) Plaintiff also cites to a Ninth Circuit case for the premise, “[o]nce a claimant produces objective medical evidence of an underlying impairment, an [ALJ] may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain.” Rollins v. Massanari , 261 F.3d 853, 856 (9th Cir. 2001) (“While subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor in determining the severity of the claimant's pain and its disabling effects. 20 C.F.R. § 404.1529(c)(2).”)

Despite the ALJ's finding of Anxiety, as a severe medically determinable impairment, the ALJ did not address the Listing 12.06 for Anxiety and obsessive-compulsive disorders, and did not making specific findings stating clear and convincing reasons for rejecting claimant's testimony regarding the severity of “panic attacks” or “anxiety” or which symptom testimony is not credible and what facts in the record lead to that conclusion under Smolen , supra .

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Instead, the ALJ found “[t]he severity of the claimant's mental impairment does not meet or medically equal the criteria of listing 12.15.” (AR 18.) The Court notes, here, as discussed herein, supra, Section II(4.) , Listing 12.15 is for Trauma, and is a “new” Listing implemented in 2017, and provides:

12.15 Trauma- and stressor-related disorders (see 12.00B11), satisfied by A and B, or A and C:

A. Medical documentation of all of the following:

1. Exposure to actual or threatened death, serious injury, or violence;

2. Subsequent involuntary re-experiencing of the traumatic event (for example, intrusive memories, dreams, or flashbacks);

3. Avoidance of external reminders of the event;

4. Disturbance in mood and behavior; and

5. Increases in arousal and reactivity (for example, exaggerated startle response, sleep disturbance).

AND

B. Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 12.00F):

1. Understand, remember, or apply information (see 12.00E1).

2. Interact with others (see 12.00E2).

3. Concentrate, persist, or maintain pace (see 12.00E3).

4. Adapt or manage oneself (see 12.00E4). OR

C. Your mental disorder in this listing category is “serious and persistent;” that is, you have a medically documented history of the existence of the disorder over a period of at least 2 years, and there is evidence of both:

1. Medical treatment, mental health therapy, psychosocial support(s), or a highly structured setting(s) that is ongoing and that diminishes the symptoms and signs of your mental disorder (see 12.00G2b); and

2. Marginal adjustment, that is, you have minimal capacity to adapt to changes in your environment or to demands that are not already part of your daily life (see 12.00G2c).

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20 C.F.R. § Pt. 404, Subpt. P, App. 1. Regarding Listing 12.15 Trauma, the 2021 ALJ found “Paragraph B” criteria: 1) mild; 2) moderate; 3) moderate; 4) mild; and regarding the “Paragraph C” criteria “the evidence fails to establish the presence of the “paragraph C” criteria. (AR 18.)

Plaintiff has presented “objective medical evidence of [ ] underlying impairments” of Depression, in addition to PTSD and Anxiety, with substantial evidence in the record corroborating severity of symptoms. Regarding the “Paragraph B” criteria, the Court agrees with Plaintiff that the ALJ did not consider “other evidence” beyond the contrary opinions of the State Agency medical consultants and did not cite to any inconsistencies between reported abilities and actual abilities, either by self-report, medical notation, or circumstantial evidence and relied solely on evidence such as notations of intact memory, lack of evidence of difficulty understanding, evidence of poor eye contact, occasional poor concentration, and frequent good or fair insight or judgment to find that Plaintiff's limitations were mild or moderate rather than marked or extreme.

The Court finds the ALJ's lack of “other evidence” beyond mental status exams, as discussed above, and State Agency medical consultants contrary opinions, to disregard Plaintiff's symptom testimony fails to articulate clear and convincing reasons or reasons supported by substantial evidence to discount McConnell's statements about the intensity, persistence, and limiting effects of his symptoms.

E. The Individual

According to SSR 16-3P, in pertinent part, regarding a claimant's symptoms:

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[A]n individual's statements may address the frequency and duration of the symptoms, the location of the symptoms, and the impact of the symptoms on the ability to perform daily living activities. An individual's statements may also include activities that precipitate or aggravate the symptoms, medications and treatments used, and other methods used to alleviate the symptoms.

SSR 16-3P.

Regarding Plaintiff's widespread body pain or fibromyalgia, the ALJ included the following, “[i]n December 2020, the claimant sought treatment for widespread body pain that has been present for 20 to 30 years that he believed was caused by fibromyalgia. (C9F p. 1).” (AR 17.) The ALJ further stated, “[h]e later acknowledged he has not been diagnosed with fibromyalgia and was assessed at La Frontera with chronic pain syndrome. (C11F p. 49).” (AR 17) (emphasis added).

The Court finds the La Frontera Progress Note referenced by the ALJ is from a service date of December 16, 2020 (C11F p. 49) (AR 5002), and the “New Patient Consultation Note” at the Pain Management Clinic is dated December 23, 2020 (C9F p. 1) (AR 1387), i.e ., the pain specialist was seen after Plaintiff was seen at La Frontera. The results of the specialist at the Pain Management Clinic, in pertinent part, concluded as follows:

Regarding this patient's pain -history and physical exam suggestive of fibromyalgia and myofascial pain. Patient is interested today and [ sic ] ways to further optimize his pain control. Therefore, we have sent a referral for the patient to physical therapy for his chronic myofascial pain , specifically noting for them to focus on myofascial release. In addition, we have sent prescription for tizanidine 4 mg daily s needed to further help treat his myofascial pain. We have also recommended lifestyle modifications, specifically we discussed the following in detail: smoking cessation, aerobic exercise 3 times a week, and starting an anti-inflammatory diet (handout was given).

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(AR 1390) (emphasis added). The previous Progress Note from La Frontera, in pertinent part, stated, “Client reports his medical concerns involve chronic pain, client has not been able to get diagnosed but has been told it is likely fibromyalgia.” (AR 5002.) The Court FINDS the ALJ's supporting evidence to discredit Plaintiff's symptom testimony of pain lacks clear and specific reasons for doing so based on the above analysis and supporting record.

F. The ALJ's Errors are Not Harmless

An ALJ's decision will not be reversed for an error that is harmless. Stout v. Comm'r of Soc. Sec. Admin. , 454 F.3d 10 50, 1054 (9th Cir. 2006). An error is harmless if the reviewing court can confidently conclude that no reasonable ALJ could have reached a different disability determination. Stout , 454 F.3d at 1056. Stated another way, an error is harmless if it is inconsequential to the non-disability determination. Id . at 1055.

IV. CONCLUSION

The Court finds the Chavez presumption of continuing non-disability was rebutted because the 2021 ALJ Decision made a finding that Plaintiff's “worsened mental impairments constituted changed circumstances.” (AR 15.) Further development of the record is needed to address any preclusive effect ( res judicata ) regarding the findings at each step of the 2018 ALJ Decision. This error is contrary to Ninth Circuit's application of SSAR 97-4(9) and the Chavez presumption. The Court finds the ALJ's 2021 Decision misapplied SSR 16-3p and discredited Plaintiff's symptom testimony without providing support by clear and convincing reasons based on substantial evidence. Given the 2021 ALJ's finding of “worsened mental impairments” (AR 15),

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reversal is recommended to address Plaintiff's symptom testimony as it relates to each of Plaintiff's conditions, i.e ., PTSD, anxiety, as well as, depression, and chronic myofascial pain, as follows:

a) The ALJ's reliance on mental status exams and State medical consultants, without consideration of other evidence, under SSR 16-3P, does not provide clear and convincing reasons or reasons supported by substantial evidence to discount McConnell's statements about the intensity, persistence, and limiting effects of his symptoms as of the alleged onset date of August 28, 2018.

b) Consultative Examiner, Noelle Rohen, Ph.D., post-hearing , diagnosed Plaintiff with persistent depressive disorder, dysthymic pattern, and the 2018 ALJ's Decision gave great weight to Dr. Rohen's opinion, however, the 2021 ALJ neglected to include depressive disorder as a medically determinable impairment, or non-exertional impairment, or consider Plaintiff's symptoms regarding depression, despite the 2021 ALJ's finding of “worsening mental impairments.”

c) Regarding the ALJ's finding of a severe medically determinable impairment of Anxiety disorder (AR 17), the ALJ neglected to consider Listing 12.06 Anxiety under 20 C.F.R. § Pt. 404, Subpt. P, App. 1.

d) Regarding Plaintiff's symptom testimony regarding Depression, the 2021 ALJ's Decision did not address Listing 12.04 Depressive et al . under 20 C.F.R. § Pt. 404, Subpt. P, App. 1.

In addition, regarding the ALJ's finding of Plaintiff's polysubstance abuse disorder:

e) The previous find by the 2018 ALJ of claimant's history of substance abuse (AR 79), and the present finding of the 2021 ALJ of Plaintiff's diagnosis of polysubstance abuse disorder (AR 17) limited by the finding that “the record does not show it causing more than minimal limitations lasting 12 months or more since the alleged onset date” (AR 17), is not supported by clear and convincing reasons or reasons supported by substantial evidence, nor reflected in ALJ's application of SSAR 97-4(9) , particularly given the ALJ's finding of “worsening mental impairments.” (AR 15.)

f) Consideration of SSR 13-2P on remand is appropriate to determine whether Plaintiff has a Drug Addiction and Alcoholism (DAA), i.e ., a medically determinable Substance Use Disorder, and whether it is material to Plaintiff's other severe medically determinable impairments, i.e ., PTSD and Anxiety and or Depression.

The Court finds the errors are not harmless. Thus, reversal is warranted.

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V. RECOMMENDATION

For the reasons delineated above, the Magistrate Judge recommends that the District Judge enter an order REVERSING the ALJ's 2021 Decision and REMANDING the case for further proceedings in accordance with this report and recommendation.

Pursuant to 28 U.S.C. § 636(b) and Rule 72(b)(2), Federal Rules of Civil Procedure, any party may serve and file written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). No replies shall be filed unless leave is granted from the District Judge. If objections are filed, the parties should use the following case number: CV-21-00452-SHR

Failure to file timely objections to any factual or legal determination of the Magistrate Judge may result in waiver of the right of review.