THOMAS S. ZILLY, District Judge.
Donna Bland Munson seeks review of the denial of her application for Title II Disability Insurance Benefits (DIB). Ms. Munson contends the Administrative Law Judge (ALJ) violated her due process rights in declining to reopen her prior DIB claim and applying res judicata with respect to that time period. Dkt. 7 at 1, 3-6. Ms. Munson further contends the ALJ erred in: (1) failing to provide legally sufficient reasons for rejecting medical source opinions; (2) failing to find trichotillomania to be a severe impairment; (3) failing to provide clear and convincing reasons for rejecting her own symptom testimony; and (4) failing to provide germane reasons for rejecting the lay testimony. Dkt. 7 at 1. As discussed below, the Court
Ms. Munson filed a previous application for DIB in August 2011 alleging disability as of August 31, 2007. Tr. 21, 90. Ms. Munson's application was denied initially and on reconsideration. On February 21, 2013, Ms. Munson filed an untimely request for a hearing before an ALJ but argued she had "good cause" under 20 C.F.R. §404.911 for the late request. Tr. 136-137, 155. Specifically, Ms. Munson's attorney submitted an affirmation stating that he had filed a timely request for a hearing in April 2012 and suggesting that there may have been a "glitch" in the new electronic submission process for hearing requests. Tr. 155. Ms. Munson also submitted an affidavit stating she had spoken to someone at Social Security in September 2012 who indicated an April 2012 hearing request was received. Tr. 156.
On July 3, 2017, ALJ Adams issued an Amended Order of Dismissal finding that Ms. Munson had not established good cause for her untimely hearing request and dismissing her request for a hearing. Tr. 137. ALJ Adams stated that Ms. Munson's attorney could not cite the specific date in April 2012 that he allegedly submitted the hearing request nor could he offer any proof that he had filed the hearing request in a timely manner. Id. He further noted that there was no proof of a "glitch" in the system that may have caused the alleged April 2012 hearing request to go missing. Id. Because ALJ Adams dismissed Ms. Munson's request for a hearing, the reconsideration determination dated February 27, 2012, finding Ms. Munson not disabled remained in effect. Tr. 21. The Appeals Council denied review of ALJ Adams' Amended Order of Dismissal. Tr. 138-139. Ms. Munson did not seek review at the district court level. Tr. 47.
Ms. Munson filed the instant DIB application on May 21, 2013, alleging disability as of July 1, 2007, two months earlier than the date alleged in her August 2011 application. Tr. 219-220. Her application was denied initially and on reconsideration. Tr. 21, 115-132. The ALJ conducted a hearing on August 18, 2014, during the course of which he stated he could not reopen Ms. Munson's prior claim because it was an administratively final prior decision. Tr. 47-48. Ms. Munson argued that, pursuant to 20 C.F.R. §404.989, the ALJ could reopen an earlier application for "good cause" which is satisfied where "new and material evidence is furnished." Tr. 334. Ms. Munson contended new and material evidence was submitted including the medical opinion of Steven Mitchell M.D., as well as lay witness testimony, which should be considered by the ALJ in deciding whether there was good cause to reopen her prior application. Id. She also argued that the "mix-up" concerning the request for hearing on the first application also justified reopening that application. Id. On February 10, 2015, the ALJ issued a decision stating he found "no basis" to reopen Ms. Munson's prior claim and citing 20 C.F.R. §404.988 which outlines the circumstances under which a prior claim may be reopened. Tr. 21. As such, the ALJ determined that the reconsidered determination issued on the first application on February 27, 2012, was final and binding with respect to the issue of disability through that date. Tr. 21. The ALJ indicated he would only consider whether Ms. Munson was disabled at any time from February 28, 2012, through her date last insured (DLI) of June 30, 2012. Tr. 21-22.
Utilizing the five-step disability evaluation process,
Ms. Munson contends the ALJ violated her due process rights by denying her request to reopen her prior application. Dkt. 7 at 1, 3-6. Ms. Munson notes that, at the hearing, the ALJ erroneously stated that he "could not" reopen her prior claim and, in his decision, declined to reopen the claim "without discussing or even mentioning the good cause standard in his decision." Tr. 47-48. The Commissioner argues that an ALJ's decision not to reopen a prior claim is discretionary, not a final determination subject to judicial review, and that Ms. Munson fails to articulate a colorable constitutional claim. Dkt. 14 at 3-4.
The Court has jurisdiction pursuant to statute to review only a "`final decision of the [Social Security Administration] made after a [statutorily mandated] hearing.'" Dexter v. Colvin, 731 F.3d 977, 980 (9th Cir. 2013) (quoting Califano v. Sanders, 430 U.S. 99, 109 (1977)); 42 U.S.C. §405(g). An ALJ's decision whether, for good cause shown, to entertain an untimely hearing request or to reopen an earlier application is strictly discretionary, not final, and thus is not generally reviewable by a district court. Id. However, a discretionary decision by the Administration that is not a final decision may be subject to an exception where the Commissioner's decision "is challenged on constitutional grounds." Evans v. Chater, 110 F.3d 1480, 1482 (9th Cir. 1997) (citing Sanders, 430 U.S. at 109); 42 U.S.C. § 405(g). This "exception applies to any colorable constitutional claim of due process violation that implicates a due process right either to a meaningful opportunity to be heard or to seek reconsideration of an adverse benefits determination." Udd v. Massanari, 245 F.3d 1096, 1099 (9th Cir. 2001) (internal quotation marks and citation omitted). "[A] mere allegation of a due process violation is not a colorable constitutional claim." Klemm v. Astrue, 543 F.3d 1139, 1144 (9th Cir. 2008) (internal quotation marks and citation omitted). "Rather, the claim must be supported by facts sufficient to state a violation of substantive or procedural due process." Id. (internal quotation marks and citation omitted).
Section 404.988 of Title 20 of the Code of Federal Regulations sets forth a variety of circumstances under which the Commissioner may reopen a prior determination or claim. Subsection (b) of the regulation provides that a determination or decision may be reopened "[w]ithin four years of the date of the notice of the initial determination if we find `good cause', as defined in § 404.989, to reopen the case." 20 C.F.R. §404.988. Section 404.989 provides that "good cause" to reopen a determination or decision will be found if: "(1) New and material evidence is furnished; (2) A clerical error in the computation or recomputation of benefits was made; or (3) The evidence that was considered in making the determination or decision clearly shows on its face that an error was made." 20 C.F.R. § 404.989.
Ms. Munson argues that ALJ Kennedy should not have relied on ALJ Adams' finding denying Ms. Munson's request for reopening "since the evidence [ALJ] Adams considered in making his decision clearly shows on its face that an error was made." Dkt. 7 at 5. Ms. Munson further argues that she provided new and material evidence in the form of treatment notes, the opinions of Steven R. Mitchell, M.D., Ph.D., Gary Connor, Ph.D., and Robert T. Hogg, M.D., as well as several lay witness statements describing Ms. Munson's functioning dating back to 2007, which also provided a basis for reopening. Id. She contends the ALJ's refusal to reopen her prior claim "without discussing or even mentioning the good cause standard in his decision" violated her due process rights. Id. at 4.
Ms. Munson contends the ALJ incorrectly stated at the hearing that he "could not" reopen Ms. Munson's prior claim because it was an "administratively final prior decision." Tr. 47-48. Even assuming the ALJ misstated the standard for reopening a prior claim at the hearing, in his decision the ALJ demonstrates that he applied the proper standard. Specifically, the ALJ states that he "do[es] not find any basis for reopening the claimant's prior Title II applications" and cites 20 C.F.R. §404.988. Tr. 21, 47-48; 20 C.F.R. § 404.988. Ms. Munson also argues that the ALJ does not even mention the "good cause" standard. However, while the ALJ may not have recited the regulatory language, 20 C.F.R. §404.988 includes the provision that a claim may be reopened within four years of the date of the notice of the initial determination upon a finding of "good cause", as defined in 20 C.F.R. §404.989. In finding no basis to reopen the prior claim under 20 C.F.R. §404.988, the ALJ indicates that he considered whether there was good cause to do so.
Ms. Munson appears to seek to argue the merits of her good cause argument. Dkt. 7 at 3-6. However, the ALJ's decision to deny reopening of a prior claim is discretionary and Ms. Munson is not entitled to judicial review of the ALJ's good cause determination on the merits. See Dexter, 731 F.3d 977. Rather, the Court is limited to considering whether a colorable constitutional claim is raised. While the ALJ in this case might have provided a more detailed explanation, in stating he found no basis to reopen the prior claim under 20 C.F.R. §404.988, he also indicated that he had considered the relevant factors for reopening a prior claim under the regulations and determined there was no basis for doing so.
The ALJ must provide "clear and convincing reasons" to reject the uncontradicted opinion of a treating or examining doctor. Lester v. Chater, 81 F.3d 821, 830, 831 (9th Cir. 1996). When contradicted, a treating or examining doctor's opinion may not be rejected without "specific and legitimate reasons" that are supported by substantial evidence in the record. Id.
Ms. Munson contends the ALJ erred in evaluating the opinion of Dr. Connor. Dkt. 7 at 6-9. The Court agrees.
Dr. Connor evaluated Ms. Munson in December 2012. Tr. 823-825. Ms. Munson was referred to Dr. Connor by her treating psychiatrist Dr. Mitchell who described her psychological problems as "mixed, highly varied and puzzling" and sought clarification of her diagnoses. Id. Dr. Connor interviewed Ms. Munson as well as her husband Scott Munson and conducted clinical testing, including the Minnesota Multiphasic Personality Inventory-2 (MMPI-2) and Million Clinical Multiaxial Inventory III (MCMI-III). Id. Dr. Connor opined that the testing suggests that Ms. Munson is "severely anxious, depressed as well as schizoid, dependent and confused." Tr. 824. He observed that Ms. Munson was very quiet and gave short and almost unintelligible answers to questions. Id. He noted that, during the personality profiles it took her twice as long to complete the inventories as it would most people and it took great effort for her to concentrate and pay attention to the task at hand. Id. He found that "as sometimes happens", Ms. Munson's symptoms did not meet a "neat, single, well defined disorder . . ." but diagnosed her with major depression, generalized anxiety disorder and avoidant personality disorder. Id. Dr. Connor opined that,
Tr. 824-825. Dr. Connor assigned Ms. Munson a Global Assessment of Functioning (GAF) score of 60.
The ALJ discounted Dr. Connor's opinion because: (1) it was rendered six months after the subject period and does not provide a specific assessment of Ms. Munson's functional capacity prior to June 30, 2012; (2) the GAF score was inconsistent with the rest of the opinion; (3) the opinion does not mention the results or validity of the MMPI-2 and the MCMI-III; (4) Dr. Connor did not ask Ms. Munson if she had taken extra medication; and, (5) the opinion appeared to rely solely on Ms. Munson's self-reports, which the ALJ found not fully credible. Tr. 28-29. However, Dr. Connor submitted a post-hearing opinion to the Appeals Council in June 2015, which clarifies his December 2012 opinion and undermines the reasons the ALJ provided for discounting that opinion. See Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012) ("[W]hen the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider in determining whether the Commissioner's decision is supported by substantial evidence.").
With respect to the ALJ's first rationale, Dr. Connor's post-hearing opinion states that Ms. Munson's mental functional limitations did exist prior to June 30, 2012, and that they were "severe", meaning they caused "very serious interference with the person's ability to function independently, appropriately, effectively, and on a sustained basis, i.e., more than 20% of the time." Tr. 871, 875. Dr. Connor also articulated specific functional limitations which, he opined, existed prior to June 30, 2012. Tr. 875-879. Specifically, Dr. Connor found Ms. Munson had several marked and severe limitations in the areas of sustained concentration and persistence, social interaction, and adaptation. Id. He stated that the ratings were based on the signs and symptoms described in his December 2012 opinion and the fact that they "are usually developed over a long period of time so their existence 6 months prior to her exam [was] highly likely." Tr. 877.
With respect to the ALJ's second rationale, to the extent the ALJ intended to reject Dr. Connor's December 2012 opinion as inconsistent with the GAF score of 60
With respect to the ALJ's third rationale, Dr. Connor's post-hearing opinion points out, correctly, that he did mention the results of the MMPI-2 and MCMI-III inventories on pages two and three of his December 2012 report. Tr. 874. For instance, the December 2012 report states that these inventories "show a pattern of severe clinical maladjustment." Tr. 825. Dr. Connor also states that the inventory results were implicitly encompassed in the diagnoses of major depression, generalized anxiety disorder and avoidant personality disorder listed in his report. Tr. 825, 874. Dr. Connor further indicates that validity was not an issue and that the inventory results were acceptable for clinical and treatment purposes. Tr. 874. Dr. Connor explains that his December 2012 report was written for Dr. Mitchell and that both doctor's understood that when Dr. Connor wrote a report it was not necessary to go into detail regarding the validity of each inventory unless there was a problem. Id.
With respect to the ALJ's fourth rationale, Dr. Connor states he does not know whether Ms. Munson took her prescribed medication but it was his practice "to always urge a client who is going to be administered an inventory to be well rested and under as little stress as possible before the event." Tr. 872. Ms. Munson did indicate in her testimony that she sometimes took "extra" medication when she went on trips. Tr. 60, 68-90. However, there is no evidence that Ms. Munson took additional medication, beyond her normal prescription, prior to her examination, nor did the ALJ inquire about that issue at the hearing. Thus, the ALJ's rationale that Ms. Munson may have taken additional medication which may have affected her performance on the examination is largely speculative and is insufficient, without more, to undermine the validity of Dr. Connor's opinion.
With respect to the ALJ's fifth rationale, Dr. Connor's post-hearing opinion states that his findings are based on various factors including the test results, Ms. Munson's appearance and behavior, her spouse's descriptions of Ms. Munson's behavior and social history, Dr. Mitchell's comments over the phone, and his own thirty-years of professional experience. Tr. 872. This demonstrates that Dr. Connor's opinions were not based solely on Ms. Munson's self-reports. See Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) ("when an opinion is not more heavily based on a patient's self-reports than on clinical observations, there is no evidentiary basis for rejecting the opinion.").
In light of Dr. Connor's post-hearing opinion, substantial evidence does not support the ALJ's reasons for rejecting the December 2012 opinion. Accordingly, on remand, the ALJ should reevaluate Dr. Connor's December 2012 opinion in addition to and in light of the posthearing opinion.
Ms. Munson also contends the ALJ erred in evaluating the opinion of her treating psychiatrist, Dr. Mitchell. Dkt. 7 at 9-11. The Court disagrees.
In July 2013, Dr. Mitchell submitted a report stating:
Tr. 854-856. Based on his own evaluation, Dr. Mitchell diagnosed Ms. Munson with major depression, recurrent, severe, generalized anxiety disorder, trichotillomania (hair pulling), panic disorder, probably obsessive compulsive disorder, probable agoraphobia, as well as attention deficit-hyperactivity disorder. Based on the results of Dr. Connor's testing, Dr. Mitchell found Ms. Munson may also have dependent and avoidant traits and schizoid features. Id. Dr. Mitchell opined that "the cumulative impact of the multiple psychiatric diagnoses that Ms. Munson is dealing with effectively precludes her from functioning adequately in the workplace." Id.
The ALJ rejects Dr. Mitchell's opinion as conclusory because it includes no specific assessment of her functional capacity prior to June 30, 2012. Tr. 28. An ALJ may reject a medical opinion that includes "no specific assessment of [the claimant's] functional capacity" during the relevant time period. Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir.1995). Likewise, an ALJ can disregard a medical report that does "not show how [a claimant's] symptoms translate into specific functional deficits which preclude work activity." Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir.1999). In addition, an ALJ need not accept a medical opinion that is brief, conclusory, and inadequately supported by clinical findings. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Here, Dr. Mitchell concludes that Ms. Munson's diagnoses would preclude her from functioning adequately in the workplace but fails to explain how her diagnoses limit her vocationally. Moreover, Dr. Mitchell rendered his opinion in July 2013 and, although he indicates he saw Ms. Munson at least once prior to her date last insured, he does not specifically relate his opinion back to the relevant period, i.e. prior to June 30, 2012. Ms. Munson does not challenge this basis for discounting Dr. Mitchell's opinion and it is a valid reason supported by substantial evidence.
Ms. Munson contends the ALJ erred in evaluating Dr. Hogg's opinion. Dkt. 7 at 11-12. The Court disagrees.
In November 2013, Dr. Hogg completed a mental functional capacity form in which he checked numerous boxes indicating either marked or extreme limitations in every category. Tr. 866-870. Dr. Hogg indicated that "[i]t is abundantly clear that the patient has had a severely disabling psychiatric condition. I am in full support of the position that she has been incapable of any meaningful employment since May of 2007." Tr. 861. The ALJ discounted this opinion noting that it was completed almost a year and a half after the relevant period and that Dr. Hogg provided very little explanation for such drastic limitations. Tr. 29. The ALJ notes that the only explanation Dr. Hogg offers for his findings is that Ms. Munson "presented disorganized, cognitively slowed, depressed, anxious, and was `unable to stay on the simplest tasks,' such as a review of her symptoms." Tr. 29, 869. However, the ALJ points out that Dr. Hogg's clinical notes do not mention such significant difficulties. Tr. 29.
An ALJ need not accept a medical opinion that is brief, conclusory and inadequately supported by clinical findings. Thomas, 278 F.3d at 957. Moreover, a conflict between treatment notes and a treating provider's opinions may constitute an adequate reason to discredit the opinions of a treating physician or another treating provider." Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014). Here, as the ALJ notes, Dr. Hogg saw Ms. Munson for a range of health issues including back pain and medication compliance but only one treatment note makes mention of Ms. Munson's mental health issues. Tr. 29, 827-52. While this treatment note, which is dated July 2012 (shortly after the relevant period) mentions "some" psychomotor slowing and trichotillomania, it does not elaborate further on the nature or extent of these issues. Tr. 827-829. Moreover, while the treatment note states that Dr. Hogg "ordered tests about the hair and mind issues", his subsequent clinical notes never mention such issues or testing again. Tr. 29, 827-852. Nor is there any mention in the treatment notes of Ms. Munson appearing disorganized or unable to stay focused on simple tasks, or that Dr. Hogg directly observed her to be anxious or depressed. Id. Under the circumstances, the ALJ reasonably rejected Dr. Hogg's opinion as brief, conclusory and inadequately supported by clinical findings, as well as inconsistent with his own treatment notes.
Ms. Munson contends the ALJ harmfully erred in failing to include trichotillomania as a severe impairment at step two. Dkt. 7 at 12. The Court disagrees.
At step two of the sequential evaluation, the Commissioner must determine "whether the claimant has a medically severe impairment or combination of impairments." See Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); 20 C.F.R. § 404.1520(a)(4)(ii). The ALJ did not specifically consider Ms. Munson's trichotillomania at step two of the sequential evaluation process. Tr. 24. However, the ALJ does discuss trichotillomania in discussing the medical opinion evidence as well as Ms. Munson's testimony at later steps in determining the RFC. Tr. 25-30. Ms. Munson notes that her dermatologist, Dorothy Yang, M.D. opined that she suffered from severe chronic relapsing trichotillomania, despite combined anti-anxiety medications, and that this condition would serve as a significant distraction both to Ms. Munson and her coworkers. Dkt. 7 at 13; Tr. 864-865. However, the ALJ properly discounted Dr. Yang's April 2014 opinion on the grounds that it was conclusory and did not contain a specific assessment of Ms. Munson's functional capacity as it existed on or before the date last insured.
Even if the ALJ had erred in failing to include trichotillomania as a severe impairment at step two, Ms. Munson fails to demonstrate that this error was harmful. Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012) (the burden is on the party claiming error to demonstrate the error and that the error was harmful). An ALJ's failure to properly consider an impairment at step two may be harmless where the ALJ considers all the functional limitations caused by that impairment later in the decision. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Here, the ALJ discussed trichotillomania in evaluating the medical opinion evidence as well as Ms. Munson's testimony in the context of determining the RFC. Tr. 25-30.
In sum, the ALJ did not harmfully err in failing to include trichotillomania as a severe impairment at step two.
Ms. Munson argues the ALJ harmfully erred in discounting her symptom testimony. Dkt. 7. The Court disagrees.
The ALJ found the medical evidence of Ms. Munson's underlying impairments might reasonably produce the symptoms alleged and did not find that Mr. Munson was malingering. Tr. 26. Consequently, the ALJ was required to provide specific, clear and convincing reasons for rejecting Ms. Munson's testimony. Brown-Hunter v. Colvin, 806 F.3d 487 (9th Cir. 2015). If the ALJ's reasons for discounting a claimant's subjective symptom testimony are supported by substantial evidence in the record, the Court may not engage in second-guessing. Thomas, 278 F.3d at 959. Here, the ALJ provided at least one clear and convincing reason for discounting Ms. Munson's testimony.
In evaluating the credibility of a claimant's testimony, the ALJ may consider a range of factors including prior inconsistent statements concerning symptoms, inconsistency with the medical evidence, as well as the claimant's daily activities. See Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014); Johnson, 60 F.3d at 1434. Here, the ALJ reasonably discounted the credibility of Ms. Munson's testimony on the grounds that her demonstrated activities were inconsistent with her complaints of disabling anxiety and depression. See Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012). Specifically, the ALJ noted that Ms. Munson "alleged that she was unable to even be in her front yard for fear someone would stop to ask her for directions, yet, she was able to travel to Mexico for a trip in February 2012 and, while not during the period at issue, was also able to take a subsequent trip to Hawaii." Tr. 27, 329. Although Ms. Munson did indicate that she took more medication when she traveled, the ALJ reasonably found Ms. Munson's ability to make these trips inconsistent with her claims of "virtual agoraphobia." Tr. 25, 27. As the ALJ noted, these trips required several hour flights, airport check-ins and standing in security lines, interacting appropriately with other people in crowded terminals and onboard the airplane, as well as navigating customs and immigration check points. Tr. 27.
The ALJ also discounted Ms. Munson's symptom testimony as inconsistent with the relevant longitudinal medical record. Tr. 26. However, even if the ALJ erred in discounting Ms. Munson's symptom testimony on this basis, its inclusion is harmless as it does not negate the ALJ's other valid reason for discounting Ms. Munson's testimony i.e. as inconsistent with her demonstrated activities. See Carmickle, 533 F.3d at 1162.
Accordingly, the ALJ did not err in discounting Ms. Munson's symptom testimony.
Ms. Munson contends the ALJ erred in evaluating the lay witness statements of her dentist, Scott Henricksen, DDS, her spouse, Scott Munson, her sister, Shirley A. Vormsberg, her stepson, Jason Munson, and her brother-in-law, Frank A. Adams. Dkt. 7 at 16-18. The Court disagrees.
To discount competent lay witness testimony, the ALJ "must give reasons that are germane to each witness." Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). Where the ALJ provides clear and convincing reasons for rejecting a claimant's subjective complaints, the same reasons may be considered germane for rejecting similar lay witness testimony. See Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009).
Dr. Henricksen submitted a letter dated March 6, 2014, stating that he had been Ms. Munson's dentist since 1989 and that "since that time her personality and ability to function have been severely impacted." Tr. 863. Dr. Henricksen stated it was normal for Ms. Munson to be confused and lack coherency and her decision making and ability to follow through with or remember previously discussed matters was very compromised. Id. He noted that "in recent years [Ms. Munson's] severe anxiety has been consistent, and detached irrational behavior has also been characteristic" and that her "level of disability that is observable to us in my office has been consistently severe for many years." Id.
The ALJ properly noted that Dr. Henricksen was not an acceptable medical source for purposes of a mental health diagnosis. Tr. 27. The ALJ indicated that he "did not find [the opinion] supported more limitations than found above" in the RFC. Id. The ALJ reasonably discounted this opinion on the grounds that it was conclusory, did not explain the basis for the generalized assessments, and was rendered two years after the relevant period and lacked specificity with respect to the period in question. Tr. 27-28. Moreover, Dr. Henricksen gave similar testimony to that of Ms. Munson regarding the severity and impact of her symptoms of anxiety, and difficulties with concentration and task completion. The ALJ properly rejected Ms. Munson's testimony about the severity of her limitations on the grounds that her claims were inconsistent with her activities. The ALJ's well-supported reason for rejecting Ms. Munson's testimony applies equally well to Dr. Henricksen's testimony. Thus, even if the ALJ had erred in assessing Dr. Henricksen's testimony, it was harmless. See Molina, 674 F.3d at 1122.
The ALJ also reasonably discounted the lay witness statements of Scott Munson, Shirley A. Vormsberg, Jason Munson, and Frank A. Adams for the same reason he discounted Ms. Munson's testimony. Tr. 27. As the ALJ notes, the lay witnesses gave similar testimony to that of Ms. Munson regarding the severity and impact of her symptoms including agoraphobia, anxiety, and difficulties with concentration and task completion. Id. For instance, Scott Munson noted that Ms. Munson has extreme social phobia and was dependent upon him for activities such as cooking, shopping, paying bills and doing dishes. Tr. 332-333. Ms. Vomsberg noted that Ms. Munson had difficulty leaving the house because of her anxiety and that she took extra medication when she traveled and mostly stayed in the condo when they traveled to Hawaii. Tr. 324. Mr. Adams also indicated that Ms. Munson mostly stayed in the condo on their trip. Tr. 329-330. Because the ALJ gave a clear and convincing reason for discounting Ms. Munson's symptom testimony, this same reason may be considered germane for rejecting the similar testimony of the lay witnesses. See Valentine, 574 F.3d at 694.
Accordingly, the ALJ did not err in discounting the lay witness statements.
In general, the Court has "discretion to remand for further proceedings or to award benefits." Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). The Court may remand for further proceedings if enhancement of the record would be useful. See Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). The Court may remand for benefits where (1) the record is fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ fails to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). "Where there is conflicting evidence, and not all essential factual issues have been resolved, a remand for an award of benefits is inappropriate." Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014).
Here, the Court finds that not all essential factual issues have been resolved. The Court properly considered Dr. Connor's post-hearing opinion which was presented to the Appeals Council in determining whether the ALJ's decision was supported by substantial evidence. However, it would be inappropriate to hold, on the basis of this evidence, which the ALJ has not have the opportunity to evaluate, that Ms. Munson is entitled to benefits as a matter of law. Harman, 211 F.3d at 1180. As the Ninth Circuit has previously held, "[t]he appropriate remedy in this situation is to remand this case to the ALJ; the ALJ may then consider, the Commissioner then may seek to rebut and the VE then may answer questions with respect to the additional evidence." Id. Accordingly, the Court finds it appropriate to remand this case for further administrative proceedings. See Treichler, 775 F.3d at 1107.
For the foregoing reasons, the Commissioner's final decision is
On remand, the ALJ should develop the record as necessary, reevaluate the opinion of Dr. Connor, reassess and determine the RFC, and proceed with steps four and five of the sequential evaluation process with the assistance of a vocational expert as necessary.
