YOULEE YIM YOU, Magistrate Judge.
Plaintiff, Nicole Milton ("Milton"), seeks judicial review of the final decision by the Commissioner of Social Security ("Commissioner") denying her application for Title II Disability Insurance Benefits ("DIB") and Title XVI Social Security Income ("SSI") under the Social Security Act ("Act"). This court has jurisdiction to review the Commissioner's decision pursuant to 42 USC §§ 405(g) and 1383(c)(3). Because the Commissioner's decision fails to provide any legally sufficient basis for rejecting multiple sources of testimony regarding Milton's need to lie down during the day, the decision should be reversed, and this case should be remanded to the Commissioner for further proceedings.
Milton filed an application for DIB on December 18, 2012, and an application for SSI on December 27, 2012. Tr. 178-87.
Born in June 1978, Milton was 33 years old on the alleged onset date. Tr. 66. She has a high school education and completed some college. Tr. 40. She has past work experience as a purchasing clerk and an advertising clerk. Tr. 28. She worked for Bi-Mart until March 21, 2012. Tr. 43. During the 12 years she had worked for Bi-Mart, her responsibilities included event planning, bookkeeping, database management, and coordinating with publications for advertisement. Tr. 41. Milton received an administrative termination from Bi-Mart in January 2013 after exhausting FMLA, OFLA, and short-term disability benefits following her April 2012 surgery (discussed below). Tr. 318.
Milton fractured her hip as a teenager in 1991, and had open reduction and internal fixation of a left proximal femur fracture. Tr. 262. Due to what Milton describes as the "screws scratching the inside of the joint" and avascular necrosis, the hip hardware was removed less than a year later. Tr. 223, 346, 358. Eventually, Milton developed severe left hip posttraumatic arthritis, and the hip joint degenerated to the point that the only option left to her was hip replacement surgery. Tr. 223, 262, 346, 349.
Following a severe exacerbation of her symptoms in mid-March 2012, Milton underwent a total hip arthroplasty in early April 2012. Tr. 43, 49, 327, 349. Post-surgery, Milton's arthritic pain resolved, but she developed chronic muscular pain and "shooting pains of unclear etiology." Tr. 340-44. She also developed patellofemoral syndrome in her right knee. Tr. 339-40. Additionally, Milton developed depression. Tr. 224. Although she is taking Cymbalta, Milton reported on more than on occasion that it is not improving her symptoms. Tr. 49, 341. Since the surgery, she spends "pretty much" all of the day lying down. Tr. 51. She is usually up at 3 pm but returns to bed at 4:30 or 5 pm. Id.
The reviewing court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. 42 USC § 405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). This court must weigh the evidence that supports and detracts from the ALJ's conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998)). The reviewing court may not substitute its judgment for that of the Commissioner when the evidence can reasonably support either affirming or reversing the decision. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Instead, where the evidence is susceptible to more than one rational interpretation, the Commissioner's decision must be upheld if it is "supported by inferences reasonably drawn from the record." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citation omitted); see also Lingenfelter, 504 F.3d at 1035; Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) ("Where evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.").
Disability is the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 USC § 423(d)(1)(A). The ALJ engages in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. This sequential analysis is set forth in the Social Security regulations, 20 CFR § 416.920, in Ninth Circuit case law, Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999) (applying 20 CFR § 404.1520), and in the ALJ's decision in this case, Tr. 18-19.
At step one, the ALJ found that Milton had not engaged in substantial gainful activity after the alleged onset date. Tr. 19.
At step two, the ALJ found that Milton has the following severe impairments: status post left hip replacement, anxiety disorder, irritable tendon right ankle, and depressive disorder. Id.
At step three, the ALJ found Milton did not have an impairment or combination of impairments that met or medically equaled a listed impairment. Tr. 20. The ALJ next assessed Milton's residual functional capacity ("RFC") and determined that she could perform sedentary work with the following additional limitations: she can lift 10 pounds occasionally and less than 10 pounds frequently; she can stand and walk up to two hours in an eight-hour day and requires the use of a cane in one hand while walking; she can sit for at least six hours in an eight-hour day; she requires the option to change position from seated to standing at will without interrupting essential tasks; she can never climb ladders, ropes, or scaffolds; she can frequently balance and stoop; she can never kneel, crouch, or crawl; she can never operate foot controls with her left lower extremity; she can frequently balance; she can understand, remember, and carry out simple instructions; she should not be exposed to hazards such as unprotected heights and large moving equipment. Tr. 22.
At step four, the ALJ found Milton could not perform any of her past relevant work. Tr. 28. At step five, based on the testimony of the VE, the ALJ determined that Milton could perform jobs that exist in significant numbers in the national economy, including document preparer, food and beverage order taker, and jewelry assembler. Tr. 29.
Milton argues that the ALJ erred by: (1) improperly discounting her subjective symptom testimony; (2) improperly rejecting the medical opinions of Doherty Gilchrist, M.D. (treating physician) and Steven Shah, M.D. (orthopedic surgeon); (3) failing to include limitations described by her mother despite accepting her lay testimony; and (4) failing to meet the burden of showing that she is capable of performing other work. These challenges focus primarily on two specific limitations that Milton contends render her disabled: (1) her inability to sit or stand for longer than 30 minutes at a time; and (2) her need to lie down periodically due to pain.
With respect to the first of these limitations, the RFC specifically incorporates a restriction that Milton must have the "option to change position from seated to standing at will without interrupting essential tasks." Tr. 22. That restriction in the RFC essentially incorporates the limitation Milton contends is missing and, accordingly, provides no basis for challenging the ALJ's decision. However, the same cannot be said of the evidence regarding Milton's need to lie down due to pain or the side effects of the medications Milton takes to control her pain. For the reasons that follow, the Commissioner failed to properly reject testimony by Milton and her mother, as well as the opinions of two treating doctors, regarding that symptom.
Although Milton's orthopedic surgeon, Dr. Shah, initially thought she would return to work several months post-surgery (Tr. 315-16), over the next year, Milton developed chronic pain. In functional reports submitted in early 2013, both Milton and her mother, Deborah Johnson ("Johnson"), state that Milton spends most of the day lying down. In February 2013, Dr. Gilchrist, Milton's primary care doctor, completed a report indicating that the chronic pain in Milton's left hip requires Milton to lie down during the day. Tr. 323. In a similar report that same month, Dr. Shah opined that it was "unknown" whether Milton's impairment required her to lie down, but noted that "she does experience dizziness [with] pain meds so may lay down when these are needed." Tr. 329. At the hearing in January 2015, Milton testified that she lies down most of the day because the pain she experiences "makes [her] not want to do anything."
The ALJ acknowledged that Milton's medically determinable impairments could reasonably be expected to cause some of her alleged symptoms. Tr. 23. Despite that finding, and despite purportedly giving "significant weight" to the functional report completed by Johnson (Tr. 28), the ALJ mentions Milton's need to lie down during the day only in passing, and discusses it only in reference to how Milton managed to make a trip to Texas. Tr. 24. Nevertheless, it is clear that the ALJ rejected the lay testimony and doctors' opinions regarding Milton's need to lie down during the day, as it is not a symptom incorporated into the RFC or otherwise mentioned in the ALJ's decision. After a thorough review of the record, this court concludes that the ALJ failed to provide legally adequate reasons for rejecting that subjective symptom evidence. This court further concludes that the Commissioner's error requires remand of this case for further proceedings.
When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms complained of, and the record contains no affirmative evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (citation omitted). A general assertion that the claimant is not credible is insufficient; the ALJ must "state which . . . testimony is not credible and what evidence suggests the complaints are not credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted). If the "ALJ's credibility finding is supported by substantial evidence in the record, [the court] may not engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted).
The record reveals no affirmative evidence of malingering. Therefore, the ALJ was required to give clear and convincing reasons for rejecting Milton's testimony. As just noted, the ALJ does not specifically address Milton's need to lie down or incorporate any restriction to account for it in the RFC. Simply ignoring evidence does not suffice for rejecting it. Instead, "the ALJ must specifically identify the testimony she or he finds not to be credible and must explain what evidence undermines the testimony." Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (citation omitted). Nor do the other reasons given by the ALJ for generally rejecting Milton's testimony withstand scrutiny.
The ALJ found that "[i]n activities of daily living, [Milton] has no restriction" and "[t]here is evidence of record that the claimant may not be as limited in the ability to function as alleged." Tr. 21, 23. An ALJ may consider a claimant's activities of daily living ("ADLs") in assessing whether those activities contradict her testimony about symptoms or functional limitations, or in assessing whether those activities represent functional capacities that are transferable to the workplace. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007).
The ALJ noted that Milton "testified she does not do household chores but reported elsewhere she did laundry." Tr. 23. In January 2013, Milton reported that she "can wash and dry laundry, but usually need[s] help hanging them up or putting it away." Tr. 226. Milton's mother also reported in March 2013 that Milton was able to do "some laundry." Tr. 233. However, more recently, at her hearing in January 2015, Milton testified that she did not do any laundry. Tr. 45. The fact that Milton was able to wash and dry laundry in 2013 is not necessarily inconsistent with her inability to do so in 2015. Furthermore, at her hearing, Milton explained that her husband and children now do the laundry. Id. Therefore, Milton's purportedly inconsistent statements regarding her ability to do the laundry does not constitute a clear and convincing reason for discounting her subjective symptom testimony.
The ALJ also noted that Milton can do "light grocery shopping," prepare "simple meals," and "drive a vehicle a couple times a week." Tr. 23. The ALJ failed to identify how Milton's ability to perform any of these activities contradicted her statements. Milton reported that she cooked "some light meals" two to three times per week for 15-20 minutes, but she "really don't do hardly anything anymore." Tr. 45, 225. She drove "sometimes" or "once or twice a week," but "only when having someone drive isn't an option" and she was "feeling not so dizzy." Tr. 226. Her husband usually did the grocery shopping. Tr. 46. When Milton did, it was once or twice a month but usually with her three children who "get it done" because she is unable to stand or walk for "much time." Tr. 226.
The Commissioner argues that Milton's testimony was inconsistent because she claimed that her medications caused nausea and dizziness but she elsewhere stated that she "felt comfortable driving her children around safely on a regular basis." Def.'s Br. 14, ECF #18. As mentioned above, however, Milton only drove when it was not an option to have someone else do it and when she was not feeling dizzy. Tr. 226. Moreover, she took Vicodin twice a day at 3 pm and 10 or 11 pm, the nausea and dizziness lasted for only about 30 minutes, and she usually did not drive right after taking the medication. Tr. 52-53. Accordingly, Milton's limited driving does not undermine her testimony.
The ALJ additionally relied on Milton's report to a physical therapist in July 2012 that both of her hips were painful because she had done "a lot of walking and was on her feet over the weekend." Tr. 23; see Tr. 271. An isolated instance of being on her feet one weekend does not constitute a clear and convincing reason to discount Milton's subjective symptom testimony.
The ALJ further noted that in December 2012 Milton had reported to Dr. Shah that she "was very busy with her children and husband" and "[s]he did not intend to return to work any time soon." Tr. 23 (citing Tr. 339-40). The ALJ also noted that Milton reported to Dr. Gilchrist in April 2014 that she was "raising her children and not working." Tr. 23 (citing Tr. 384). The ALJ concluded that this "raises the suggestion that [Milton was] electing to be a full-time homemaker as opposed to working outside of the home." Tr. 24. The Commissioner further contends that "caring for children without assistance is a demanding task that can undermine a claimant's assertions of disability." Def.'s Br. 13, ECF #18 (citing Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001)).
When Milton's statements are considered in the context of the childcare and household activities that she actually performed, it is clear she was not electing to be a full-time homemaker. The record shows that Milton was not caring for her children without assistance; her husband also stayed home with the children. He and the children handled most of the chores. Tr. 45-46, 233.
Moreover, the fact that Milton told Dr. Shah that she was very busy with her three children during the month of December, a holiday month, is hardly surprising or of great significance. Additionally, the ALJ leaves out the reason why Milton told Dr. Shah that "[s]he does not intend to return to work anytime soon": she explained that because of her concern about prolonged standing and sitting, "she is not sure that she can go back to work at this point." Tr. 339. Finally, Milton's statement to Dr. Gilchrist in April 2014 is accompanied by additional reports from Milton that was still having pain in both extremities, was depressed, and was sleeping during the daytime and poorly at night. Tr. 384. Accordingly, the ALJ's speculation that Milton had elected to be a full-time homemaker is unsupported and not a clear and convincing reason to discount her subjective symptom testimony.
The only remaining issue is whether Milton's activities meet a threshold for transferable work skills: "[D]aily activities may be grounds for an adverse credibility finding `if a claimant is able to spend a substantial part of [her] day engaged in pursuits involving the performance of physical functions that are transferable to a work setting.'" Orn, 495 F.3d at 639 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). Here, the ALJ did not identify how any of Milton's activities transferred to gainful work; instead, the ALJ offered a boilerplate statement that Milton's activities suggested she was able to work. The ALJ's rationale is not clear and convincing, given the lack of specificity in the finding. Reddick, 157 F.3d at 722 ("General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints.") (citation omitted).
The ALJ also noted that Milton's ability to travel to Texas undermined her testimony, finding that: "Travel is a mental activity that requires attention and planning, and a physical activity that requires packing and carrying luggage, driving or riding as a passenger on long distances, or flying which has its own set of challenges at airports and during flight. This activity suggests greater functioning than alleged." Tr. 24.
Milton traveled to Texas twice to provide moral support for her grandmother who was undergoing breast cancer surgery. Tr. 46. As the ALJ acknowledged, one of those trip "was accomplished laying down most of the time" in the car Tr. 23. She made the other trip by airplane. Tr. 52. Milton testified that she doubled the medications she was taking and was "heavily sedated" while traveling. Tr. 46, 52. Moreover, nothing in the record indicates how or by whom the trips were planned, much less who packed or carried Milton's luggage, or how much luggage she took. A review of the record reveals little support for the assumptions underlying the ALJ's conclusion about the significance of Milton's two trips to Texas. Accordingly, Milton's trips to Texas to visit her ailing grandmother do not constitute clear and convincing reasons to discount her testimony.
The ALJ also found that while Milton "has severe physical impairments, the objective medical evidence does not support the degree of limitation alleged." Tr. 24. The ALJ noted that images of Milton's left hip in 2012 showed good alignment and Dr. Shah's report indicated that her arthritis pain was gone. Id. Additionally, Dr. Shah concluded that Milton's "recent reported shooting pains were of an `unclear etiology.'" Id. However, a claimant "need not show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom." Lingenfelter, 504 F.3d at 1036 (internal citation omitted).
Milton argues that the objective basis for her pain is the hip replacement. This is supported by Dr. Shah's report in which he opined that the "objective medical reason" for Milton's pain was the "total hip replacement." Tr. 331. Additionally, Dr. Shah observed "[s]ignficant tenderness" around the hip joint and "persistent tenderness over the anterior and lateral hip musculature." Tr. 336, 339, 341. Thus, there is evidence that Milton's hip replacement was an impairment that "could reasonably have caused some degree of the symptom." Lingenfelter, 504 F.3d at 1036 (internal quotations omitted). Accordingly, the purported lack of medical evidence is not a clear and convincing reason to discount Milton's subjective symptom testimony.
The ALJ found that as of April 2014, Milton had not followed up with Dr. Shah and was not taking narcotics. Tr. 25. An "individual's statements may be less credible if . . . the medical reports or records show that the individual is not following the treatment as prescribed and there are no good reasons for this failure." Social Security Ruling 96-7p, 1996 WL 374186 at *7 (July 2, 1996); see also Carmickle v. Comm'r of Soc. Sec., 533 F.3d 1155, 1162 (9th Cir. 2008) ("[A]lthough a conservative course of treatment can undermine allegations of debilitating pain, such fact is not a proper basis for rejecting the claimant's credibility where the claimant has a good reason for not seeking more aggressive treatment.").
The ALJ failed to acknowledge the remainder of Dr. Shah's treatment note, which indicates that the reason Milton had not followed up with Dr. Shah was because she had lost her insurance. Tr. 384. Milton was able to return to Dr. Shah's care in April 2014, when she regained her insurance. Id. Inability to afford treatment is a good reason for not seeking more aggressive treatment. Orn, 495 F.3d at 638. Accordingly, Milton's purported failure to follow up with Dr. Shah due to losing her health insurance is not a clear and convincing reason to discount her subjective symptom testimony.
Finally, the ALJ found that the "evidence shows [Milton] has made no substantial effort to comply with her orthopedic surgeon's recommendation to engage in activities that would preserve or improve her functioning." Tr. 25. Milton testified that although Dr. Shah instructed her to do all of her exercises every day, she only did "a couple" each day because it caused her pain. Tr. 54. Only when a failure to follow a prescribed course of treatment is "unexplained or inadequately explained" does it constitutes a basis for rejecting a claimant's testimony. Tommasetti, 533 F.3d at 1039 (citations omitted). Milton has explained that she engaged in the treatment modalities recommended by her doctors and therapists to the extent she was not precluded by pain from doing so. The Commissioner's speculation that she could and should have done more is not a clear and convincing reason for rejecting her testimony, particularly in light of the complete lack of any evidence in the record by any medical provider supporting that conclusion.
The ALJ also noted that Milton had not followed medical recommendations to go to physical therapy. Tr. 24. Milton correctly notes that she completed one round of physical therapy. Tr. 266-89, 337, 340. The Commissioner argues that Milton was referred to a second round of physical therapy in September, 2012, which she never attended. However, that argument is based on a cryptic chart note that simply says "PT eval + treat by Cirullo." Tr. 294. Milton did not recall being referred to Judy Cirullo for a second round of physical therapy. Tr. 48. In light of the record as a whole, this unexplained note simply does not constitute a clear and convincing basis for rejection of Milton's testimony regarding her need to lie down during the day.
In sum, the ALJ neither specifically rejected Milton's testimony that her pain requires her to lie down during the day, nor offered clear and convincing reasons for a wholesale rejection of her testimony. Accordingly, this court concludes that the ALJ erred in rejecting Milton's subjective symptom testimony.
Milton also assigns error to the ALJ's evaluation of testimony by her mother. Lay witness testimony regarding the severity of a claimant's symptoms or how an impairment affects a claimant's ability to work is competent evidence that an ALJ must take into account. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). In order to reject such testimony, an ALJ must provide "reasons that are germane to each witness." Rounds v. Comm'r, 807 F.3d 996, 1007 (9th Cir. 2015) (quoting Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012) (remaining citation omitted). Further, the reasons provided must also be "specific." Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1234 (9th Cir. 2011) (citing Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009)).
The ALJ purported to give Johnson's functional report "significant weight," but wholly failed to acknowledge her testimony that Milton sleeps "throughout most of the day." Tr. 28, 232. The ALJ gave no reasons for rejecting that testimony, much less "specific" or "germane" reasons. Nevertheless, the Commissioner argues that the ALJ was not required to address Johnson's testimony because it "is not clear why Milton's impairments would cause her to sleep during the day or whether Ms. Johnson's observation was related to her impairments." Def.'s Br. 4, ECF #18. Two problems plague this line of reasoning.
First, this court is not at liberty to affirm the Commissioner's decision based on reasoning not set out in the ALJ's decision. Instead, this court is "`constrained to review the reasons the ALJ asserts.'" Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014) (quoting Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). In this case, the ALJ gave no reason for rejecting Johnson's functional report, instead finding it worthy of significant weight, but then failing to include any restrictions to account for one of its most significant elements. Second, the Commissioner's speculation about whether or not Johnson's observation was related to Milton's impairment is in stark contrast to the opinion of Milton's primary care doctor, who expressly found some degree of Milton's need to lie down to be due to the chronic pain in her hip. Tr. 323. As discussed below, Dr. Gilchrist's one sentence explanation does not necessarily present the full picture regarding Milton's need to lie down. However, it is assuredly enough to counter the Commissioner's suggestion that Johnson's observation fails due to the lack of any causal relationship between Milton's need to lie down and her severe impairments. In short, nothing in the ALJ's decision provides a basis for completely ignoring Johnson's observation regarding Milton's need to lie down during the day.
Milton argues that the ALJ improperly rejected the medical opinions of Drs. Gilchrist and Shah.
Dr. Gilchrist was Milton's primary care provider, treating her as early as March 2010, including for hip pain both before and after her April 2012 surgery. Tr. 292-311, 321-26, 378-88. In February 2013, Dr. Gilchrist completed a functional report indicating that Milton's impairment requires her to lie down during the day, and explaining that her need to do so is due to chronic pain in her left hip.
Dr. Shah performed Milton's left hip replacement surgery in April 2012. Tr. 258. He provided follow up care and treatment for Milton's hip pain after the surgery. Tr. 336-63, 368. Dr. Shah made several treatment notes and provided a number of letters in 2012 indicating that Milton could not return to work. Tr. 340, 342-43, 355-57. Dr. Shah also filled out two functional reports, one in February 2013 and one in April 2014, reaffirming the findings he made in 2013. Tr. 327-32, 368-70. In the February 2013 report, Dr. Shah stated that it was "unknown" whether Milton was required to lie down during the day due to her impairments, but that she "does experience dizziness [with] pain meds so may lay down when these are needed." Tr. 329.
As with the rejection of the Milton's testimony and the observation of Milton's mother, the ALJ rejected the portion of the medical opinions regarding Milton's need to lie down without discussion. Although the ALJ's decision contains a lengthy discussion of the medical opinion evidence, it does not discuss this portion of two treating doctors' opinions. Tr. 25-27. The ALJ may not reject treating physicians' medical opinions "simply by not mentioning [them]." Lingenfelter, 504 F.3d at 1038 n.10.
The ALJ's rejection of other portions of these doctors' opinions seems largely based on the ALJ's conclusion that it was unreasonable for Milton's difficulties to continue past the initial recovery period predicted by Dr. Shah: "It is reasonable to expect the claimant was initially unable to work after her surgery, and would need a period of recovery." Tr. 26. What this reasoning wholly fails to account for is the doctors' findings that Milton had developed "chronic" pain. Both doctors noted this development and neither suggests that Milton's symptoms are out of line with objective findings. Tr. 336, 341, 385. Instead, by mid-July 2013, Dr. Shah was recommending that she try "some sort of low-impact exercise program, perhaps in the water," and as late as April 2014, Dr. Gilchrist suggested a second orthopedic evaluation and change in physical therapy. Tr. 337, 385.
The Commissioner argues that the doctors' opinions may be rejected because they are largely based on Milton's self-reports, which the Commissioner contends are properly rejected. However, as discussed above, the Commissioner has offered no legally sufficient basis for rejecting Milton's testimony, so that justification for rejecting Milton's treating doctors' opinions fails. The ALJ offers other reasons to reject specific limitations advanced by Drs. Gilchrist and Shah, such as limitations involving the upper extremities, and more time-restrictive postural limitations. However, nowhere does the ALJ discuss the specific limitation of needing to lie down during the day, and the reasoning offered for rejecting the other limitations does not support rejecting the limitation of needing to lie down.
In sum, the ALJ's decision provides no legally sufficient reasons for rejecting the evidence in the record regarding Milton's need to lie down during the day. This error impacted formulation of the RFC and all steps of the disability analysis dependent thereon. Lingenfelter, 504 F.3d at 1040-41 (failure to properly exclude subjective symptom testimony undermines RFC assessment, and in turn undermines step-five determination, since it was based on erroneous RFC assessment).
When a court determines the Commissioner's ultimate disability decision includes legal error and/or is unsupported by substantial evidence, the court may affirm, modify, or reverse the decision by the Commissioner "with or without remanding the case for a rehearing." 42 USC § 405(g); Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014). Here, the ALJ failed to provide legally adequate reasons to discredit the statements by Milton, her mother, and Drs. Gilchrist and Shah regarding Milton's need to lie down during the day.
The Ninth Circuit's "credit-as-true" doctrine is settled and binding law. Garrison, 759 F.3d 995, 1019-21 (9th Cir. 2014). "[T]he decision whether to remand for further proceedings turns upon the likely utility of such proceedings." Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000) (citing Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981)). Under the doctrine, evidence is credited as true and an immediate payment of benefits is directed when: (1) the ALJ failed to provide legally sufficient reasons for rejecting evidence; (2) no outstanding issues must be resolved prior to a determination of disability; and (3) it is clear the ALJ would be required to find the claimant disabled if the evidence were credited. Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) (citations omitted).
However, even if all the requirements are met, the court may nevertheless remand for further proceedings "when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled" within the meaning of the Act, such as when there are inconsistencies between testimony and the medical record, or if "the government has pointed to evidence in the record that the ALJ overlooked" and explained how that evidence belies disability. Dominguez v. Colvin, 808 F.3d 403, 407-08 (9th Cir. 2015) (quoting Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014)) (internal brackets and quotation marks omitted). Also, benefits may not be awarded punitively. Strauss v. Comm'r of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011); see also Dominguez, 808 F.3d at 407-08 (summarizing the standard for determining the proper remedy).
As discussed above, the ALJ erred by failing to provide legally sufficient reasons, supported by substantial evidence, for disregarding the evidence regarding Milton's need to lie down during the day. Thus, the first prong of the credit-as-true analysis is satisfied. Milton asserts she is entitled to a payment of benefits because the VE testified that if an "individual required the opportunity to lie down at any time outside of regular breaks," that person would be unemployable. Tr. 60. However, the record is far from clear regarding the exact contours of Milton's need to lie down, the extent to which Milton's need to lie down is due to pain in her hip versus other difficulties, whether any of those issues might be amenable to further treatment, and whether the need to lie down could be accommodated during "regular breaks" at the jobs identified by the ALJ.
The testimony in the record does not quantify Milton's need to lie down or translate it easily into the construct of the restrictions of a work environment. Moreover, the record variously supports the conclusion that Milton's need to lie down is related to pain associated with her hip difficulties, a lack of sleep at night, depression brought on by her unresolved physical issues, or side effects of her medications. Tr. 48-49, 51-52, 224-25, 384. As noted by the Commissioner, Milton testified that she has not sought out treatment for her depression other than to take medications, which she contends do not help. Tr. 48-49, 224. The referrals for further orthopedic and physical therapy evaluation and treatment seem to indicate that additional interventions may reduce or resolve some symptoms. Tr. 294, 337, 340, 384-85. Moreover, the record is silent as to whether other medications might reduce Milton's pain level without causing dizziness. Overall, the record is simply undeveloped in a number of key areas, making it less than clear that the ALJ would be required to find Milton disabled if the evidence were credited.
For the reasons discussed above, the Commissioner's decision should be REVERSED and REMANDED for further proceedings.
The Findings and Recommendation will be referred to a district judge. Objections to these Findings and Recommendation, if any, are due no later than April 9, 2018. If objections are filed, any response is due fourteen (14) days from the date of the objections. See FRCP 6, 72. Parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure Rule 4(a)(1) should not be filed until entry of the district court's judgment or appealable order.
