Arizona Cases July 05, 2022: Otterbeck v. Comm'r of Soc. Sec. Admin.

Case Description

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REPORT & RECOMMENDATION

James F. Metcalf, United States Magistrate Judge

Plaintiff seeks review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security who denied him disability insurance benefits under the Social Security Act.

This matter is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(10), Local Rules of Civil Procedure.

A. SUMMARY OF THE CASE

Plaintiff has asserted that he became disabled as of October 1, 2015, when he was 49 years old, based primarily on lower back pain, neck pain, and shoulder pain originating from injuries in an accident. He has past relevant work as a wildfire fighter, fuel delivery driver, and in logging. Plaintiff filed an application for disability insurance benefits on October 3, 2017.

In a decision issued August 12, 2020, the Administrative Law Judge (ALJ) found Plaintiff generally eligible for benefits given his date last insured, and non-employment. The ALJ found Plaintiff had the following severe impairments : multilevel degenerative disc disease with cervical stenosis, left shoulder degenerative joint disease, depressive

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disorder and antisocial personality disorder. The ALJ also found the following non-severe impairments : hypogonadism and carpal tunnel syndrome. The ALJ found no combination of impairments that established disability under the listings . The ALJ found Plaintiff had the residual functional capacity (RFC) to perform light work, except he had the following additional limitations:

..frequently push/pull with the left upper extremity. He can occasionally reach overhead bilaterally. He can never climb ladders, ropes or scaffolds. He can occasionally balance, stoop, kneel, crouch, crawl and climb ramps or stairs. He can have occasional exposure to dangerous machinery and unprotected heights. He can work with occasional interaction with co-workers. He cannot work in tandem with others.

(AR 18.) The ALJ adopted the opinion of the Vocational Expert (VE) that with Plaintiff's RFC there were jobs available in significant numbers. The Appeals Council denied review on March 23, 2021 (AR 1), and this appeal was filed May 17, 2021 (Doc. 1).

Plaintiff has appealed, arguing that the ALJ erred in rejecting the opinions of his treating pain-management physician, Dr. Grove, and in rejecting his own symptoms testimony, either of which would have established disability.

B. STANDARDS OF REVIEW

In this instance, because the Appeals Council denied review, the ALJ's decision is the final decision of the agency, and the decision now under review. 20 C.F.R. § 404.981.

The court may set aside the agency's disability determination only if the determination is not supported by substantial evidence or is based on legal error. Orn v. Astrue , 495 F.3d 625, 630 (9th Cir. 2007).

The phrase “substantial evidence” is a “term of art” used throughout administrative law to describe how courts are to review

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agency factfinding. Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains sufficient evidence to support the agency's factual determinations. And whatever the meaning of “substantial” in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this Court has said, is more than a mere scintilla. It means-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, 1154 (2019) (quotations, alterations and citations omitted).

In reviewing the ALJ's decision, neither the parties nor the Court can manufacture their own reasons to support the decision made by the ALJ. “We review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.” Garrison v. Colvin , 759 F.3d 995, 1010 (9 Cir. 2014); see also SEC v. Chenery Corp. , 318 U.S. 80, 87 (1943) (“The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.”); Connett v. Barnhart , 340 F.3d 871, 874 (9th Cir. 2003) (“We are constrained to review the reasons the ALJ asserts. It was error for the district court to affirm the ALJ's credibility decision based on evidence that the ALJ did not discuss.”).

C. TREATING PHYSICIAN OPINION

Plaintiff's treating pain management physician, Dr. Grove, opined in March 26, 2020 that Plaintiff: (a) had “severe spine-related issues, both cervical and lumbar spine,” including a “severe” narrowing from a “large extruded disc at the C6-7 areas,” “multilevel degenerative disc issues and disc protrusions in the low back,” and “diffuse arthritis and musculoskeletal issues”; (b) Plaintiff suffered from “C7 radicular pain symptoms” and “severe low back radiating pain,” as well (from a recent fall) “severe radiating left leg pain”; and (c) was not “a candidate for gainful employment” with the medications Plaintiff was “on for emotional and physical issues.” (Exh. 13F.)

Dr. Grove further opined on May 13, 2020 that in an 8 hour day Plaintiff: (a) could sit less than 2 hours, stand/walk less than 2 hours, and lift and carry less than 10 pounds; (b) would require alternating between sitting, standing and walking very 1-20 minutes and

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still required rest for 15+ minutes; (c) could use his hands and bend, reach and stoop only less than occasionally; (d) would have severe limitations in pace; (e) would suffer headaches or mental fatigue more than 4 times per month requiring rest greater than 2 hours; (f) would miss work 6+ days per month. This was based on the issues identified in a 2016 lumbar MRI, and lack of effective available treatment. (Exh. 14F.) ( Cf. Exhs. 3F, 4F (Grove and associates treatment notes).)

Plaintiff's primary care physician, Dr. Hammett, offered a slightly less limiting RFC opinion. (Exh. 14F.) ( Cf. Exhs. 2F, 15F (Hammett and associates treatment notes).)

In contrast, the two agency reviewing physicians and examining physician all “opined the claimant is capable of a range of light work,” albeit with differing postural and environmental limitations. (AR 21.)

At the hearing, Plaintiff testified to experiencing symptoms approximating the limitations adopted by Dr. Grove and Dr. Hammett.

The ALJ generally rejected the opinions of Dr. Grove and Dr. Hammett, and Plaintiff's symptoms testimony, found the agency physicians persuasive and determined the RFC described hereinabove.

1. Arguments

In his Opening Brief, Plaintiff argued the ALJ erred in rejecting the opinion of Dr. Grove “in the absence of specific and legitimate reasons supported by substantial evidence, and by failing to provide articulation of the consideration of the supportability and consistency factors under the regulations for evaluation of a medical source's opinion.” (Doc. 21 at 12.)

The Commissioner argues the ALJ properly considered Dr. Grove's opinion under the 2017 standards in light of its supportability and consistency with the record as a whole (and a showing of “specific and legitimate reasons” was not required), including considerations of: (1) the lack of support in Grove's treatment notes and opinion(s); (2) inconsistency with other medical records; and (3) the apparent reliance on subjective complaints. Further, the Commissioner argues the RFC determination was a proper role

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for the ALJ to be made in light of all the record. (Doc. 24 at 4-17.)

Plaintiff replies that: (1) the record does not support the ALJ's conclusion that Grove's RFC opinion was inconsistent with Grove's treatment notes, referencing only one note which was consistent; (2) reliance on the use of a checkbox form was improper given the explanations given by Grove within the form and in his narrative opinion; and (3) the record shows Grove did not rely solely on Plaintiff's subjective complaints. (Doc. 25 at 4-8.)

2. Applicable Standard

Under prior regulations establishing a hierarchy of medical opinions, the Ninth Circuit enforced a high standard for rejection of treating physician opinions. “Even if the treating doctor's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing ‘specific and legitimate reasons' supported by substantial evidence in the record.” Reddick v. Chater , 157 F.3d 715, 725 (9th Cir. 1998).

However, for applications filed after March 27, 2017, like Plaintiff's, the “new” regulations under 20 C.F.R. § 404.1520c apply. The new regulations require the ALJ to articulate “how persuasive” it finds the medical opinions and administrative findings. 20 C.F.R. § 404.1520c(b). The new regulations state:

We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources ... The most important factors we consider when we evaluate the persuasiveness of medical opinions and prior administrative medical findings are supportability (paragraph (c)(1) of this section) and consistency (paragraph (c)(2) of this section). We will articulate how we considered the medical opinions and prior administrative medical findings in your claim according to paragraph (b) of this section.

20 C.F.R. § 404.1520c (emphasis added). The regulations require an ALJ to explain their reasoning with specific reference to how they considered the supportability and consistency factors for each source (but not for each specific opinion). 20 C.F.R. § 404.1520c(b)(1) and (2).

In Woods v. Kijakazi , 32 F.4th 785 (9th Cir. 2022), the Ninth Circuit found these regulations supplant the old hierarchical system:

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As a threshold matter, we must decide whether recent changes to the Social Security Administration's regulations displace our longstanding case law requiring an ALJ to provide “specific and legitimate” reasons for rejecting an examining doctor's opinion. We conclude that they do. For claims subject to the new regulations, the former hierarchy of medical opinions-in which we assign presumptive weight based on the extent of the doctor's relationship with the claimant-no longer applies. Now, an ALJ's decision, including the decision to discredit any medical opinion, must simply be supported by substantial evidence.

Id. at 787. Thus, contrary to Plaintiff's pre- Woods argument in the Opening Brief, the ALJ was not required to provide “specific and legitimate reasons” for rejecting Dr. Grove's opinions.

However, neither the new regulations nor Woods leave ALJs to dispense with medical opinions willy-nilly.

Even under the new regulations, an ALJ cannot reject an examining or treating doctor's opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence. The agency must “articulate ... how persuasive” it finds “all of the medical opinions” from each doctor or other source, 20 C.F.R. § 404.1520c(b), and “explain how [it] considered the supportability and consistency factors” in reaching these findings, Id. § 404.1520c(b)(2).

Id. at 792 (emphasis added).

Other factors , including the treating relationship (including length, frequency, purpose, extent, and examinations), specialization, familiarity with other evidence and agency standards, and new evidence not considered by other providers), 20 C.F.R. § 404.1520c(c)(3)-(4), are still relevant, but the ALJ needs to articulate the consideration of those factors only when two or more opinions are equally supported and consistent with the record. 20 C.F.R. § 404.1520c(b)(1) and (2).

With particular regard to the relationship factor, Woods observed.

Thus, an ALJ can still consider the length and purpose of the treatment relationship, the frequency of examinations, the kinds and extent of examinations that the medical source has performed or ordered from specialists, and whether the medical source has examined the claimant or merely reviewed the claimant's records. Id. § 404.1520c(c)(3)(i)-(v). However, the ALJ no longer needs to make specific findings regarding these relationship factors

32 F.4th at 792 .

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Thus, the ALJ's decision must be upheld if: (a) it articulates how persuasive it found each source's medical opinion(s); (b) it explains how the supportability and consistency factors were considered; (c) if two or more opinions are equally supported and consistent, it explains how the other factors were considered to choose between them; and (d) its supplied reasons are supported by substantial evidence (which includes a reasonable mind consideration).

3. Application to Grove's Opinion

a. Articulation of Persuasiveness

Here, the ALJ explained that Grove's (and Hammett's) opinions were less persuasive than the reviewing and consulting physicians, which the ALJ found “most persuasive.” (AR 21.) Plaintiff posits no reason that this did not meet the requirement of 20 C.F.R. § 404.1520c(b) for articulation of persuasiveness of the medical opinions.

b. Articulation of Supportability and Consistency

(1). Supportability

Supportability looks at whether the medical opinion is internally supported. This factor considers “the objective medical evidence and supporting explanations presented by a medical source...to support his or her medical opinion(s),” and the more relevant such supports are, the more persuasive the opinion. 20 C.F.R. § 14520c(c)(1).

Here, the ALJ found that Grove's opinions were not supported by his own “objective and clinical findings,” citing: (a) findings of a “normal gait, normal neurological examination with only tenderness and reduced range of motion,” citing Exhibit 12F at 1-2; (b) the use of a checkbox form that “provided minimal explanation” for the limits adopted; and (c) Groves' reference to Plaintiff's request for a disability letter and the impacts of Plaintiff's pain on function, “which suggests his opinion may be based on the claimant's subjective complaints rather than objective or clinical evidence.” AR 21.

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(a). Inconsistency with Treatment Records

Regarding Grove's treatment records, Plaintiff argues the referenced record (Exh. 12F 1-2, AR 530-31) does not support the ALJ's contention of inconsistency. (Doc. 21 at 13.) The ALJ referenced “normal gait.” The treatment note records: “Gait Normal.” (Exh. 12F at 2.) The ALJ referenced “normal neurological examination with only tenderness and reduced range of motion.” The treatment note records “5/5” strength ratings on the upper limbs, moderate tenderness and moderately reduced range of motion for the lumbar spine, tenderness and mildly reduced range of motion on the cervical spine. ( Id. )

Still, Plaintiff complains the “ALJ did not explain what in that treatment note was inconsistent” with Grove's RFC. (Doc. 21 at 13.) While perhaps terse, it is plain that the ALJ found the referenced normal gait, full strength, and mild/moderate tenderness and range of motion findings inconsistent with Grove's restrictive RFC. Perhaps Plaintiff asks this Court to conclude that the referenced findings were not inconsistent the RFC, but Plaintiff proffers nothing to show that is so.

Plaintiff argues that the ALJ's reference to treatment notes by Dr. Hammet were improper to challenge Grove's opinion. But this ignores the structure of the decision, which was simultaneously rejecting the opinions of both Grove and Hammet, and thus provided record citations relevant to each. Thus, the ALJ did not rely on the Hammet treatment notes to reject Grove's opinions as unsupported.

Plaintiff suggests that the ALJ erred by citing only one of Dr. Grove's notes. An ALJ does not rely on substantial evidence where he cherry-picks supportive statements that belie the plain import of the medical record. See Garrison v. Colvin , 759 F.3d 995, 1018 n. 23 (9th Cir. 2014) (quoting Scott v. Astrue , 647 F.3d 734, 739-40 (7th Cir.2011); and Attmore v. Colvin , 827 F.3d 872, 877 (9th Cir. 2016). But Plaintiff fails to point to other records by Dr. Grove which provided more supportive findings.

Plaintiff also argues the ALJ's conclusion that Dr. Grove's RFC opinion was “ extreme ” was illogical, because the RFC left him capable of many things short of employment. The ALJ indeed characterized the treating physician opinions as adopting

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“extreme limitations.” (AR 21.) But the undersigned does not understand the characterization of Grove's RFC as “extreme” to be a normative evaluation (Plaintiff v. the worst-case scenario), but rather a comparative one (Grove v. other sources). To the extent that it was normative, Plaintiff's argument is unconvincing. Indeed, Plaintiff cites to Lopez v. Colvin , 194 F.Supp.3d 903 (D. Ariz. 2016). There, Judge Campbell mused: “Presumably, most medical evaluations of disabled individuals assess extreme limitations.” Id. at 914. Under that rubric, to the extent that Grove's opinion was that Plaintiff was disabled, it would be unsurprising that the ALJ would characterize it as evaluating the limitations as “extreme.”

Although focusing on the term “extreme,” Plaintiff argues that the ALJ was “ playing doctor ” by concluding that the normal/mild/moderate findings by Grove were inconsistent with his RFC. (Doc. 21 at 14-15.) It is hard to perceive what role Plaintiff expects the ALJ to undertake. While the ALJ cannot make his own independent medical findings, Banks v. Barnhart , 434 F.Supp.2d 800, 805 (C.D. Cal. 2006), or reject all the medical opinions and render wholesale a new medical opinion based on raw medical data, Tackett v. Apfel , 180 F.3d 1094, 1102 (9th Cir. 1999), it is the ALJ's purview to “evaluate the persuasiveness of medical opinions,” 20 C.F.R. § 404.1520c(a), including by comparison with “the objective medical evidence,” 20 C.F.R. § 404.1520c(c)(1) and (2). Here, the ALJ was not looking to the medical record to issue his own medical opinion, but to choose between existing, conflicting medical opinions. Cf. Omerasevic v. Commr. of Soc. Sec. Admin ., No. CV-17-08211-PCT-DMF, Order, Doc. 29 at 22 (D. Ariz. Jan. 2, 2019) (“The ALJ did not cite to any medical opinion explaining what findings and treatment one should expect in Claimant's circumstances. This implies the ALJ improperly relied on her own assessment.” (citations omitted)).

(b). Lack of Support in Opinion

The ALJ opined: “The doctors simply checked boxes on a form and provided minimal explanation for the extreme limits indicated. Indeed, there is no explanation for the opinion the claimant can only use his hands, bend and stoop for 20%.” (AR 21.)

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Plaintiff argues that this ignores the references on the checkbox form and Dr. Grove's narrative opinion, and that the focus on the hands/bend and stoop opinions amounts to cherry-picking. (Doc. 21 at 15-16.)

Plaintiff makes no effort to argue Dr. Groves' opinions on the hands/bend/stoop limitations were supported by Dr. Groves' record, and appears to accept that these opinions were unsupported, and then attempts to leverage that into an assertion that the ALJ was merely cherry-picking, to justify rejecting the rest of the RFC opinion. But as discussed hereinafter, separate substantial evidence justified the assertion of a lack of support of the balance of the RFC opinion.

Plaintiff properly argues that the use of a checkbox form is not, of itself, fatal to a medical opinion. (Doc. 21 at 16.) Here, however, the ALJ did not rely solely upon the use of a checkbox form, nor even of a lack of internal explanation in the opinions. Rather the ALJ also relied on the lack of support for the checkbox answers and in Dr. Grove's treatment record.

On the checkbox form, Dr. Grove commented: “Note that this patient has altered anatomy as noted in the 2016 lumbar MRI that has no surgical resolution and he gets occasional radiofrequency lesioning of the cervical & lumbar spine for relief in addition to the pain medications.” (Exh. 14F at 2 (AR 587).) In his narrative, Dr. Grove cited to a cervical spine MRI and what he considered “severe narrowing” from the extruded disc at ¶ 6-7, and a lumber MRI showing “multilevel degenerative disc issues and disc protrusions.”

At some level, this suggests support for Groves RFC opinions. However, earlier in the decision, the ALJ had addressed the 2016 MRIs of the lumbar and cervical spines, and X-Ray of the thoracic spine, and observed: “While these x-rays and MRI's document some abnormality, absolutely no central canal compromise, significant stenosis, nerve root impingement or herniation was evident.” (AR 18-19.) Thus, the ALJ's conclusion that the Dr. Grove's opinion offered no internal support was supported by substantial evidence, despite the references to those MRIs.

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It is true that this discussion took place in the ALJ's analysis of Plaintiff's symptoms testimony, not that addressing the medical opinions. But the Court is not constrained solely by the ALJ's organization of his opinion, and can make reasonable inferences reading the decision as a whole. Magallanes v. Bowen , 881 F.2d 747, 755 (9th Cir. 1989). Here, it is reasonable to infer that in casting Dr. Grove's MRI based explanations as having “minimal explanation” the ALJ was drawing upon the conclusion already reached that the MRIs did not support claims of a disabling RFC.

(c). Reliance on Subjective Complaints

Finally, Plaintiff contends the ALJ erred in relying on a conclusion that Dr. Grove's RFC opinion was based on Plaintiff's subjective complaints of pain, etc. (Doc. 21 at 1617.) The ALJ opined: “It is also noted that Dr. Groves treatment notes reflect the claimant's request for a disability letter stating ‘his pain impacts his ability to function on a day to day basis', which suggests his opinion may be based on the claimant's subjective complaints rather than objective or clinical evidence (Ex. 12F/1, 5).” (AR 21.)

Plaintiff does not argue that Groves' reliance upon subjective complaints could not be a valid basis to reject Grove's opinion. Indeed, “[a]n ALJ may reject a treating physician's opinion if it is based ‘to a large extent' on a claimant's self-reports that have been properly discounted as incredible.” Tommasetti v. Astrue , 533 F.3d 1035, 1041 (9th Cir. 2008).

Rather, Plaintiff argues “the ALJ provided no support from the record for the ALJ's belief that Dr. Grove abandoned his professional judgment and accepted Otterbeck's reports at face value, thus misrepresenting his condition to the agency.” (Doc. 21 at 16.)

Plaintiff overstates. The ALJ did not accuse Dr. Grove of misrepresentation, but of relying on Plaintiff's subjective complaints (which the ALJ had already rejected), rather than objective or clinical evidence (which the ALJ had already found was not within Dr. Grove's records). This does not reject the propositions that “[a]ny medical diagnosis must necessarily rely upon the patient's history and subjective complaints,” Brand v. Sec'y of Dep't of Health, Ed. & Welfare , 623 F.2d 523, 526 (8th Cir. 1980), and thus a “patient's

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report of complaints, or history, is an essential diagnostic tool,” Flanery v. Chater , 112 F.3d 346, 350 (8th Cir. 1997). The ALJ did not question Dr. Grove's integrity, merely the quality of the evidence upon which he relied in coming to his opinions. The principle recognized in Tommasetti (that over reliance on discredited subjective complaints is a basis to reject an opinion) allows for the reality that healthcare workers seldom have cause or opportunity to subject their patients' complaints to the kinds of examination, investigation, and testing that happens in disability proceedings.

The ALJ's determination that Dr. Grove relied upon subjective complaints was explicitly based upon the notation that at the 3/12/2020 visit (just prior to Dr. Grove's 3/26/2020 narrative opinion (Exh. 16F)), the opening History section included:

Patient presents for follow up of neck and low back pain.

Patient states that his pain impacts ability to function on a day to day basis.

He has a disability trial requesting an updated letter from Dr. Grove.

(Ex. 12F at 1 (AR 530).) And it was based upon the similar notations at the 1/16/2020 visit (the immediately prior visit) in the opening History section:

Patient presents for follow up of low back pain.

Patient states he has constant back pain that restricts his daily activity.

He is pursuing disability and has upcoming trial.

( Id. at 5 (AR 534).)

Moreover, it is reasonable to infer from the decision that the ALJ's finding of Grove's reliance on subjective complaints was also based on the lack of objective and clinical findings in Dr. Grove's records to support the limited RFC. The ALJ's decision and had just finished discussing those conclusions. Indeed, the ALJ prefaced his finding on subjective complaints with the phrase “It is also noted.” (AR 21.) In fact, it is not clear that the ALJ actually relied upon this factor, finding the evidence only “ suggests his opinion may be based on the claimant's subjective complaints.” (AR 21 (emphasis added).)

Even if the Court could conclude that the ALJ's finding of reliance on subjective

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complaints was not supported by substantial evidence, and that the ALJ actually relied on such factor, any error would have been harmless. Harmlessness does not require the court to determine what ultimate decisions the ALJ would have made if the error had not been committed, but only to ask whether the remaining bases for the decision are sufficient to support the decision. Carmickle v. Comm'r, Soc. Sec. Admin. , 533 F.3d 1155, 1162 (9th Cir. 2008). Here, the ALJ's other bases for rejecting Dr. Grove's opinions are sufficient to support the decision, even if the “subjective complaints” basis is rejected.

(2). Consistency

In determining persuasiveness, the ALJ must also evaluate how consistent an opinion is “with the evidence from other medical sources and nonmedical sources in the claim.” 20 C.F.R. § 404.1520c(c)(2). Here the ALJ found Grove's opinion was not consistent with the objective and clinical findings of “other providers.” (AR 21.)

Although the ALJ did not detail in this paragraph the inconsistencies, he had done so in the preceding paragraphs, including noting the limited MRI and x-ray findings, limited findings on strength, range of motion, gait, etc., at least partially effective treatment (AR 19), the contrary opinions of the reviewing and examining physicians, and the limited support for the concurring opinion of Dr. Hammet (AR 21 (explaining the ALJ's failure to find the concurrent opinion as indicative of consistency). It is reasonable to infer that the short reference to the findings of other providers was intended to refer to this earlier discussion.

c. Articulation of Other Factors

Finally, (at least between Dr. Grove and the other medical sources), the other opinions were not found to be similarly supported and consistent. The reviewing and examining providers were found to be more consistent, and Dr. Hammet's opinion was found to be less supported. Accordingly, there was no need for the ALJ to articulate any reasoning with regard to other relevant factors, including the treating relationship

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(including length, frequency, purpose, extent, and examinations), specialization, familiarity with other evidence and agency standards, and new evidence not considered by other providers). 20 C.F.R. § 404.1520c(b)(1) and (2).

4. Conclusion re Opinions

Based on the foregoing, the undersigned finds no reversible error in the ALJ's decision with regard to the treatment of Dr. Grove's opinion.

D. SYMPTOMS TESTIMONY

1. Arguments

Plaintiff testified to symptoms commensurate with the limitations adopted by Dr. Grove, i.e. walking and sitting required periods of rest (AR 41), working as a tattoo artist for more than a few hours required rest for two days (AR 41-42), driving limited to no more than 20 minutes at a time (AR 42-43), light housework with intermittent rest (AR 44-45), two hours of airplane travel to a funeral (AR 47-48), decreased hand strength (AR 49), resting two hours in an 8 hour day (AR 50), standing for 20 minutes, sitting for 30 minutes, walking for 20 minutes, and resting after two or three intervals (AR 50-51), lifting 7 to 10 pounds and carrying five pounds (AR 51), difficulties reaching (AR 53), and various treatments. The ALJ summarized:

The claimant testified he is unable to work due to pain, which requires him to lie down. He explained that he is able to drive for 30 minutes before needing to stop. The claimant testified that medical marijuana and narcotic pain medication alleviate his pain.

(AR 18.)

The ALJ found Plaintiff's physical symptoms testimony was not credible because: (1) it was not supported by the objective and clinical evidence; (2) treatments had been effective; (3) it was inconsistent with Plaintiff's activities; (4) he had violated pain management requirements by use of marijuana and alcohol; (5) he had been able to work as a tattoo artist in the interim; (6) his purported service dog was not a service dog; and

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(7) statements of specific restrictions (head locked to shoulder, reclining required after walking) were uncorroborated. (AR 19-20.)

Plaintiff argues the ALJs reasons were either not valid reasons, were unconvincing, or were not supported by substantial evidence. (Doc. 21 at 19-24.)

2. Applicable Standard

Absent evidence of malingering, once an ALJ finds that an impairment could cause the reported symptoms, the ALJ can reject a claimant's symptoms testimony only by providing specific, clear and convincing reasons for doing so. Trevizo v. Berryhill , 871 F.3d 664, 678 (9th Cir. 2017). Relevant evidence includes such things as “(1) whether the claimant engages in daily activities inconsistent with the alleged symptoms; (2) whether the claimant takes medication or undergoes other treatment for the symptoms; (3) whether the claimant fails to follow, without adequate explanation, a prescribed course of treatment; and (4) whether the alleged symptoms are consistent with the medical evidence.” Lingenfelter v. Astrue , 504 F.3d 1028, 1040 (9th Cir. 2007).

Plaintiff argues that the Commissioner applies a standard of “reasonableness,” which is inconsistent with the heightened standard for “convincing” reasons. (Doc. 25 at 8.) Indeed, the Commissioner argues in a footnote that the Ninth Circuit's standard requiring “clear and convincing reasons” is contrary to the regulations. (Doc. 24 at 18, n. 9.) But the Commissioner also acknowledges the Ninth Circuit's standard is binding in this Court and argues that the ALJ's reasons meet it. ( Id. )

3. Application to Plaintiff's Testimony

a. 1, 7 Corroboration and Contradiction by Medical Record

With regard to the ALJ's first and sixth reasons, Plaintiff argues that the ALJ erred by relying on a lack of corroboration in the medical record. (Doc. 21 at 19-20, 23-24.) The Commissioner answers that inconsistency with the objective medical evidence is a valid consideration, and such evidence did not support Plaintiff's testimony. (Doc. 24 at 20, 21.)

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The law recognizes that pain is inherently subjective, is (in the current state of medical science) all but impossible to measure, and is difficult to verbalize. Fair v. Bowen , 885 F.2d 597, 601 (9th Cir. 1989). But that does not mean that medical records are irrelevant to symptoms testimony. But it does mean that precision is imperative when reviewing an ALJ's decision comparing symptoms testimony with the medical evidence, because a lack of corroboration is different from contradiction, and objective medical evidence is different from other types of evidence from the medical record (e.g. subjective reports, etc.). This is born out in the law.

“ Contradiction with the medical record is a sufficient basis for rejecting the claimant's subjective testimony.” Carmickle v. Comm'r, Soc. Sec. Admin. , 533 F.3d 1155, 1161 (9th Cir. 2008) (emphasis added).

A lack of corroboration , however, is more nuanced, depending on the type of corroboration being sought. Because pain is subjective and largely immeasurable, an ALJ “may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the claimant's allegations.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (emphasis added). Although it is a relevant factor, the ALJ is not permitted to base her opinion solely on the lack of such evidence. Rollins v. Massanri, 261 F.3d 853, 857 (9th Cir. 2001). See also Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006).

On the other hand, a lack of any corroboration in the balance of the medical record (subjective complaints, treatment, etc.) is not only relevant, but in an appropriate case can be the sole basis for rejecting symptoms testimony. See Smolen v. Chater , 80 F.3d 1273 (9th Cir. 1996) (differentiating between corroboration at the first stage (not required because evidence of actual level of symptoms not required, just possibility of level) and at the second stage (under facts of case (limited record) lack of corroboration not found to be clear and convincing reason)); Burch v. Barnhart , 400 F.3d 676, 681 (9th Cir. 2005) (consideration of records on lack of treatment).

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Here, the ALJ relied upon both contradictions with the medical record (effective treatment and numbness/sensation) and lack of corroboration from objective medical evidence (“the positive diagnostic findings fail to corroborate” (AR 18), “positive diagnostic findings” (AR 19-20)).

The contradictions with the treatment record are addressed hereinafter. With regard to numbness, the ALJ observed that Plaintiff reported “numbness in his left arm,” and yet the neurosurgeon recorded preserved “sensation.” (AR 19.) Plaintiff fails to explain why this was insufficient reasoning.

The Commissioner attempts to cast the references to various findings as “contradictions.” (Doc. 24 at 20-21.) But much of what the Commissioner points to were limited diagnostic findings, which do nothing to show Plaintiff did not have the symptoms he described, and thus cannot be deemed contradictory. The only directly symptom-related observation referenced by the Commissioner is “no distress.” ( Id. at 20-21 (citing AR 19).) But the ALJ's decision makes no reference to such a factor. “We are constrained to review the reasons the ALJ asserts.” Connett v. Barnhart , 340 F.3d 871, 874 (9th Cir.2003).

Moreover, the ALJ clearly casts the bulk of his findings as a lack of “corroboration.” Even the Commissioner reverts to arguing the medical evidence “does not support” the claimed symptoms. (Doc. 24 at 21.) At most, the ALJ summarizes with a reference to a “not entirely consistent,” but that was with regard to “the medical and other evidence.” (AR 21.)

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In any event, the ALJ's reliance on a lack of corroboration would only be improper if it was the sole reason for rejecting Plaintiff's symptoms testimony. However, as discussed hereinafter, the ALJ has provided at least one other valid reason. Thus, consideration of the lack of corroboration was a valid reason.

Plaintiff goes on to argue that this reason was insufficiently tied to particular symptoms testimony, citing Burrell v. Colvin , 775 F.3d 1133 (9th Cir. 2014). (Doc. 21 at 20-21; Doc. 25 at 8-9.) In Burrell , the Court found a decision lacked he required specificity where “the ALJ stated only-in passing and in a different section than the credibility determination-that Claimant's self-reports were inconsistent in some unspecified way with her testimony at the hearing.” Id. at 1138. Here, in contrast, the ALJ's decision compares the medical record to the specific symptoms testified to by Plaintiff. The decision discusses: (a) the medical record regarding Plaintiff's spinal issues, and explains that “the clinical findings as a whole support and are consistent with a substantial residual ability to stand, walk, sit, lift and carry despite his allegations otherwise” (AR 18-19); (b) the medical record on Plaintiff's shoulder and compares it to his complaints of numbness (AR 19); and (c) the complaints of pain and the record on pain treatment (AR 19). Plaintiff fails to explain how this was inadequate.

b. 2 Effective Treatment

Contrary to Plaintiff's assertions (Doc. 25 at 8-9), the ALJ relied on Plaintiff's effective pain treatment, opining:

Treatment for his pain has included radiofrequency ablation, medical branch blocks, stem cell injections, physical therapy, marijuana pain

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cream and pain medications (Ex. 8F & 18F). He reported the ablation reduced his neck pain by 50%, medial branch blocks by 80% and that his pain medication “controls his pain” (Ex. 8F/2, 12, 23, 34, 45 & 18F/1, 11, 21, 31, 41). The undersigned notes that the claimant paid out of pocket for the expensive stem cell injections. While this supports his complaints of having some pain, that in and of itself is not persuasive evidence of debilitation. Current treatment consists of medication management. This degree of treatment is consistent with the conclusion herein.

(AR 19.) Plaintiff offers no argument that this was not a specific, clear and convincing reason to reject the symptoms testimony on pain. Effective treatment is a proper consideration in evaluating symptoms. Garrison v. Colvin, 759 F.3d 995, 1017-18 (9th Cir. 2014); 20 C.F.R. § 404.1529(c)(3)(iv), (v) and (vi).

c. 3 Plane Travel

The ALJ opined: “As noted above, the claimant was able to travel on an airplane for a funeral, which shows some ability to sit, stand and walk.” (AR 20.) Plaintiff argues this was inadequate to reject his symptoms testimony because the flight was limited to two hours and he “had to move about a lot,” which was not contrary to his symptoms testimony. (Doc. 21 at 21 (citing AR 47, 48).) Plaintiff further asserts that this single event did not demonstrate an ability to meet the demands of a day of work. ( Id. ) The Commissioner argues this was a legitimate reason to reject the symptoms testimony, even if not of itself demonstrative of the ability to work, “to the extent that they contradict claims of a totally debilitating impairment. (Doc. 24 at 22-23 (quoting Molina v. Astrue , 674 F.3d 1104, 1113 (9 Cir. 2012)).)

The undersigned agrees that this was not a specific, clear and convincing reason. The ALJ acknowledged that this evidence did no more than show “some ability to sit, stand and walk.” (AR 20.) But Plaintiff did not claim no ability to do those things, only that he was limited in doing them before he was required to change position, and eventually would be required to lay down and rest. Here, Plaintiff's reported that during the trip he

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“had to move a lot” (AR 48).

Recognizing that “disability claimants should not be penalized for attempting to lead normal lives in the face of their limitations,” we have held that “[o]nly if [her] level of activity were inconsistent with [a claimant's] claimed limitations would these activities have any bearing on [her] credibility.” Reddick v. Chater , 157 F.3d at 722 (citations omitted); see also Bjornson v. Astrue , 671 F.3d 640, 647 (7th Cir.2012) (“The critical differences between activities of daily living and activities in a full-time job are that a person has more flexibility in scheduling the former than the latter, can get help from other persons ..., and is not held to a minimum standard of performance, as she would be by an employer. The failure to recognize these differences is a recurrent, and deplorable, feature of opinions by administrative law judges in social security disability cases.” (citations omitted)).

Garrison , 759 F.3d at 1016.

Molina (relied on by the Commissioner) does not require a contrary conclusion. Rather, Molina recognized that to be a valid reason, activities must be “inconsistent with the alleged symptoms.” 674 F.3d at 1113. The quotation offered by the Commissioner merely recognizes that activity (even if painful) is contradictory to a claim of total debilitation. Here, Plaintiff has not asserted he could not sit, stand or walk, only that he was limited in doing so.

d. 4 Pain Management Violations

The ALJ offered (as another issue justifying rejection of Plaintiff's claims of “debilitation”): “The evidence also shows that violations for use of marijuana and alcohol for pain management (8F/1, 18F/1).” (AR 20 (citing AR 456 (marijuana screen from 4/19/17), and 597 (alcohol self-report from 12/23/16 from a “religious” use of alcohol).)

Plaintiff argues the ALJ shows no inconsistency with his symptoms testimony, and argues the surrounding facts, and comparison with the long record of compliance with pain management. (Doc. 21 at 22.) The Commissioner argues that this reflects noncompliance with treatment, and citing additional instances not referenced by the ALJ (AR 454, 468, 648) to show it was not an aberration. (Doc. 24 at 22.) Plaintiff replies that the additional records cited are either unsupportive of the Commissioner's argument, references to the

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instance cited by the ALJ, or a single alcohol violation from years prior to the hearing (with no intervening violations through the hearing).

Indeed, the records cited by the Commissioner show only a year period of noncompliance. AR 454 is an MRI report from 10/2/18, with no discernible reference to alcohol or drugs. AR 468, a note from 4/19/17, merely noted Plaintiff “has received opioid violations previously for positive UDS for alcohol” and reporting “he has stopped marijuana.” This note is from the date of the drug screen referenced by the ALJ in Exh. 8F at 1 (AR 456). AR 648 is a note from 7/27/16 reporting then current use of marijuana, to be diminished, and referencing a 5/23/16 result showing alcohol. Combined, these records report the following violations: (a) 5/23/16 - alcohol; (b) 7/27/16 - marijuana; (c) 12/23/16 - alcohol; and (d) 4/19/17 - marijuana. Plaintiff was then discharged from opioid management by Arizona Pain on 5/23/17. (AR 456.) He commenced care at Pain Consultants of Arizona (Dr. Grove's office) on June 27, 2017. (Exh. 4F at 45 (AR 437).) The ALJ's hearing was held on July 23, 2020 (AR 13), a little over three years after Plaintiff's last recorded violation.

The undersigned assumes arguendo that the implicit in the ALJ's decision is that he was positing a failure to follow prescribed treatment, which may “cast doubt on the sincerity of the claimant's pain testimony.” Fair , 885 F.2d at 603. Here, however, the noncompliance was years old, with persistent compliance over the ensuing three years. Moreover, the nature of the non-compliance arguably spoke as much to the limited efficacy of the opioid therapy as it does to the lack of need of treatment. The undersigned finds this an unconvincing reason to reject Plaintiff's symptoms testimony.

e. 5 Tattoo Artist Work

The ALJ opined that another reason for rejecting Plaintiff's symptoms testimony

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was that “[h]e was able to work albeit far less than disqualifying substantial gainful activity after the alleged onset date as a tattoo artist.” (AR 20.) Plaintiff argues that his efforts at tattoo artistry began before he claims disability, and after disability his efforts were sporadic, for short times, short lived, and accompanied with debilitating symptoms. (Doc. 21 at 22-23.) The Commissioner argues (as with the plane travel) that this was relevant, even if Plaintiff suffered through his efforts at tattooing. (Doc. 24 at 22-23.) Petitioner does not reply. ( But see Doc. 25 at 6 (noting the Commissioner's discussion).)

As with the plane travel, the ALJ (and the Commissioner) fail to explain how Petitioner's reports of largely failed attempts to work as a tattoo artist (which the ALJ admitted never proceeded to a level sufficient to be gainful employment) were inconsistent with Plaintiff's claimed functional limitations.

The undersigned concludes this was not a specific, clear and convincing reason supported by substantial evidence.

f. 6 Service Dog

Plaintiff complains that the ALJ's rejection of his testimony that he utilized a service dog was not supported by substantial evidence. The undersigned finds no error in this regard for two reasons. First, Plaintiff's own testimony reflected that his dog had not been trained as a service animal (although Plaintiff purported to be training the dog himself), and was not recognized by the airlines as a proper service animal. That Plaintiff regarded his dog as a service animal does not, in the common parlance at least, make it so. Second, Plaintiff's only purported use for the service dog was to address his mental issues as “emotional support.” (AR 46-47.) And here, Plaintiff explicitly has declined to challenge the ALJ's decision on his mental health concerns. (Doc. 21 at 2, n. 2.) Accordingly, any error in relying on the service dog issue was harmless to the portions of the ALJ's decision challenged by Plaintiff.

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4. Harmlessness

The undersigned has concluded that the ALJ relied on four reasons (plane travel, pain management violations, tattoo artist work, and service dog) that fail to meet the standard of specific, clear and convincing reasons supported by substantial evidence to reject symptoms testimony. Even so, the remaining reasons offered by the ALJ (corroboration/contradiction and effective treatment) were sufficient to reject Plaintiff's physical symptoms testimony. Accordingly, any error was harmless and does not justify a reversal.

E. EFFECT OF RECOMMENDATION

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.

However, pursuant to Rule 72, Federal Rules of Civil Procedure, the parties have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia , 328 F.3d 1114, 1121 (9th Cir. 2003) ( en banc ), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey , 481 F.3d 1143, 114647 (9th Cir. 2007).

In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”

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F. RECOMMENDATIONS

IT IS THEREFORE RECOMMENDED:

(A) The reference of this matter to the magistrate judge be WITHDRAWN .

(B) The final decision of the Commissioner of Social Security be AFFIRMED.

(C) The Clerk be directed to enter judgment accordingly.