Rodriguez v. Commissioner of Social Security Administration

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Lorina Tinker Rodriguez, No. CV-21-00291-TUC-DCB 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 This matter was referred to Magistrate Judge Lynnette C. Kimmins, pursuant to 16 Rules of Practice for the United States District Court, District of Arizona (Local Rules), 17 Rule (Civil) 72.1(a). On July 26, 2022, Magistrate Judge Kimmins issued a Report and 18 Recommendation (R&R). (Doc. 23.) She recommends that the Court remand the case to 19 the Commissioner for Social Security for an award of disability benefits. The Court accepts 20 and adopts the Magistrate Judge’s R&R as the findings of fact and conclusions of law of 21 this Court and grants relief for the Plaintiff. 22 STANDARD OF REVIEW 23 The duties of the district court in connection with a R&R by a Magistrate Judge are 24 set forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The 25 district court may “accept, reject, or modify, in whole or in part, the findings or 26 recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b); 28 U.S.C. § 27 636(b)(1). Where the parties object to a R&R, “‘[a] judge of the [district] court shall make 28 1 a de novo determination of those portions of the [R&R] to which objection is made.’” 2 Thomas v. Arn, 474 U.S. 140, 149-50 (1985) (quoting 28 U.S.C. § 636(b)(1)). 3 This Court's ruling is a de novo determination as to those portions of the R&R to 4 which there are objections. 28 U.S.C. § 636(b)(1)(C); Wang v. Masaitis, 416 F.3d 992, 5 1000 n. 13 (9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th 6 Cir.2003) (en banc). To the extent that no objection has been made, arguments to the 7 contrary have been waived. Fed. R. Civ. P. 72; see 28 U.S.C. § 636(b)(1) (objections are 8 waived if they are not filed within fourteen days of service of the R&R), see also McCall 9 v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to object to Magistrate's report 10 waives right to do so on appeal); Advisory Committee Notes to Fed. R. Civ. P. 72 (citing 11 Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely 12 objection is filed, the court need only satisfy itself that there is no clear error on the face of 13 the record in order to accept the recommendation)). 14 The parties were sent copies of the R&R and instructed that, pursuant to 28 U.S.C. 15 § 636(b)(1), they had 14 days to file written objections. See also, Fed. R. Civ. P. 72 (party 16 objecting to the recommended disposition has fourteen (14) days to file specific, written 17 objections). The Court has considered the objections filed by the Defendant, the 18 Commissioner, and the parties’ briefs considered by the Magistrate Judge in deciding the 19 Plaintiff’s case. 20 OBJECTIONS 21 The ALJ found Rodriguez had the severe impairment of major depressive disorder, 22 with “the Residual Functional Capacity (RFC) to perform work at all exertional levels, but 23 she was limited to simple, repetitive, routine tasks, only occasional changes in work 24 routine, no public interaction, and occasional contact with coworkers and supervisors.” 25 (R&R (Doc. 23) at 2.) The ALJ decided at Step Five, based on the testimony of a vocational 26 expert, that Rodriguez was not disabled because she could perform the jobs of 27 housekeeping, cleaner, marker, and router. Id. 28 1 The Magistrate Judge concluded that the ALJ: “(1) did not give legally sufficient 2 reasons for finding that opinion evidence from nurse practitioner (NP) Kathleen Oldfather 3 was unpersuasive and (2) did not properly evaluate lay witness testimony from Plaintiff’s 4 mother. R&R at 3-11.” (Obj. (Doc. 27) at 5.) The Defendant does not challenge those 5 conclusions by the Magistrate Judge. The Defendant, however, objects to application of 6 the credit-as-true rule to both because the Magistrate Judge did not consider “whether the 7 record as a whole is free from conflicts, ambiguities, or gaps.” (Obj (Doc. 27) at 5 (quoting 8 Treichler v. Comm’r oof Soc. Sec., 775 F.3d 1090, 1103-04 (9th Cir. 2014)) 9 Under the credit-as-true rule, the Court must determine whether: 1) the ALJ “‘failed 10 to provide legally sufficient reasons for rejecting evidence” in the administrative record, 11 for example a claimant’s mother’s lay testimony or a medical opinion; 2) the record “has 12 been fully developed, whether there are outstanding issues that must be resolved before a 13 determination of disability can be made, and whether further administrative proceedings 14 would be useful; and 3) it is clear from the record that the ALJ would have to conclude that 15 the claimant is disabled if the improperly rejected evidence were credited as true. Treichler, 16 775 F.3d at 1100-01; Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). Even when 17 all three elements of the test are met, the Court must still remand for further proceedings 18 “‘if an evaluation of the record as a whole creates serious doubt that a claimant is, in fact, 19 disabled.’” Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014 20 The Defendant does not challenge the conclusion that the ALJ failed to provide 21 legally sufficient reasons for rejecting evidence in the record, NP Oldfather’s opinion and 22 the lay testimony. The Defendant objects to the Magistrate Judge’s application of the 23 credit-as-true rule based on the second prong, which requires the court to consider the 24 record as a whole. (Obj. (Doc. 27) at 5.) The Defendant submits that the two non-treating 25 state-agency physician opinions from Drs. Mertens and Novak create an ambiguity in the 26 record that needs to be addressed by the ALJ on remand. (Obj. (Doc. 27) at 6 (citing 27 Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995)). The other record evidence 28 posited by the Defendant as being missed by the Magistrate Judge is Plaintiff’s 1 “longitudinal medical treatment” record, which arguably reflects improvement with 2 treatment compliance, i.e, her condition improves when she takes her medicine. Defendant 3 argues that in combination, this evidence creates serious doubt that Plaintiff is disabled. 4 Therefore, the case should be remanded for further proceedings, not for an award of 5 benefits. 6 The Plaintiff responds that Defendant misrepresents the Magistrate Judge’s 7 recommendation. She did not simply find that the ALJ failed to consider NP Oldfather’s 8 opinion. The Magistrate Judge found that the ALJ erroneously favored the non-examining 9 medical opinions over the opinion of NP Oldfather, who had a long-term treatment 10 relationship with the Plaintiff in NP Oldfather’s area of specialty. The Magistrate Judge 11 found the ALJ’s preference for the non-treating state agency opinions was based on an 12 illegitimate finding “it appeared to be advocacy.” (R&R (Doc. 23) at 4 (cleaned up). The 13 Magistrate Judge found the preference was not supported by substantial evidence in light 14 of the record as a whole, including NP Oldfather’s “longitudinal medical treatment” 15 records. See (R&R (Doc. 23) at 12 (summarizing the record as a whole discussed in the 16 R&R, including such things as limited daily living activities; side effects of medication 17 causing drowsiness, dizziness, and headaches; personal hygiene issues; limited ability to 18 be around others and issues with authority figures; able to use public transportation but 19 inability to finish activities and difficulty in completing assigned work tasks, etc.) The 20 Court notes that the “longitudinal medical records” reflected the Plaintiff was not a reliable 21 taker of her medications and factored into NP Oldfather’s medical opinion that Plaintiff 22 was disabled. 23 The Magistrate Judge did consider the longitudinal medical treatment records. 24 (R&R (Doc. 23) at 3-8.) She found they reflected “Rodriguez’s symptoms went up and 25 down” and fully supported NP Oldfather’s prognosis of disability. The Defendant does not 26 object to the Magistrate Judge’s finding that the ALJ erred in rejecting lay testimony from 27 the claimant’s mother. That testimony, if credited-as-true supports Plaintiff’s claim of 28 disability. (R&R (Doc. 23) at 8-11.) The Court finds that the record as a whole supports 1|| the Magistrate Judge’s finding that the ALJ’s conclusion of “not disabled” was not □□ supported by substantial evidence. (R&R (Doc. 23) at 7-8). 3 The Court agrees with the Magistrate Judge’s conclusion that when the non-treating state-agency physician opinions fall away, the record as a whole in combination with the 5 || opinion of NP Oldfather and the lay testimony from claimant’s mother, credited-as true, 6 || requires a finding of disability. 7 CONCLUSION 8 After de novo review of the issues raised in Defendant's objections, this Court agrees 9|| with the findings of fact and conclusions of law made by the Magistrate Judge in her R&R || for determining the pending social security case. The Court adopts the R&R and for the 11 |} reasons stated in the R&R, the Court remands the case to the Commissioner for the Social Security Administration for an award of benefits. 13 Accordingly, 14 IT IS ORDERED that after a full and independent review of the record, in respect 15 || to the objections, the Magistrate Judge's Report and Recommendation (Doc. 23) is accepted and adopted as the findings of fact and conclusions of law of this Court. 17 IT IS FURTHER ORDERED that the Decision entered by the Commissioner of Social Security Administration is REVERSED and REMANDED for an award of benefits. 19 IT IS FURTHER ORDERED that the Clerk of the Court shall enter Judgment 20 || accordingly and close this case. 21 Dated this 22nd day of September, 2022. 22 SS QS Honorabje David C. But 26 United StatesPistrict Judge 27 28 _5-