Smith v. Commissioner of Social Security Administration

Filing 20

ORDER: The ALJ's decision is vacated and remanded for further factual findings in accordance with this opinion. Signed by Judge G Murray Snow on 7/12/2018. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Gwendolyn Smith,

No. CV-17-01041-PHX-GMS

Plaintiff,

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v.

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Commissioner
Administration,

ORDER

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of

Social

Security

Defendant.

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Pending before the Court is Claimant Gwendolyn Smith’s appeal of the Social

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Security Administration’s (SSA) decision to deny disability insurance benefits. (Doc. 16).

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For the following reasons, the Court vacates the ALJ’s decision and remands for

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consideration in accordance with this opinion.

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BACKGROUND

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Gwendolyn Smith filed for disability benefits on July 11, 2013, alleging a

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disability onset date of June 12, 2013. Ms. Smith’s application for SSA disability benefits

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asserted a neck and back injury. (Tr. 167). Her claim was denied on November 4, 2013;

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reconsideration was denied on February 6, 2014. (Tr. 83, 91). Ms. Smith requested a

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hearing in front of an administrative law judge (ALJ), which was held on July 22, 2015.

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The ALJ determined that Ms. Smith had the severe impairment of fibromyalgia. (Tr. 19).

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The ALJ found that Ms. Smith had the residual functional capacity (RFC) to perform a

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full range of work at all exertional levels, but that she should only occasionally climb

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ladders. (Tr. 21). Because the ALJ determined that Ms. Smith could perform her past

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work or other work that exists in the national economy, the ALJ found that Ms. Smith

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was not disabled under the Social Security Act. (Tr. 25–26). The Appeals Council denied

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the request to review, making the Commissioner’s decision final. (Tr. 1–4). Ms. Smith

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now seeks judicial review of this decision pursuant to 42 U.S.C. § 405(g).

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DISCUSSION
I.

Legal Standard

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A reviewing federal court will address only the issues raised by the claimant in the

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appeal from the ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n. 13 (9th Cir.

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2001). A federal court may set aside a denial of disability benefits when that denial is

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either unsupported by substantial evidence or based on legal error. Thomas v. Barnhart,

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278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence is “more than a scintilla but less

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than a preponderance.” Id. (quotation omitted). It is “relevant evidence which,

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considering the record as a whole, a reasonable person might accept as adequate to

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support a conclusion.” Id. (quotation omitted).

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The ALJ is responsible for resolving conflicts in testimony, determining

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credibility, and resolving ambiguities. See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th

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Cir. 1995). When evidence is “subject to more than one rational interpretation, [courts]

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must defer to the ALJ’s conclusion.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d

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1190, 1198 (9th Cir. 2004). This is so because “[t]he [ALJ] and not the reviewing court

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must resolve conflicts in evidence, and if the evidence can support either outcome, the

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court may not substitute its judgment for that of the ALJ.” Matney v. Sullivan, 981, F.2d

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1016, 1019 (9th Cir. 1992) (citations omitted).

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II.

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Analysis
Claimant alleges that the ALJ erred by (1) improperly rejecting the treating

physician’s opinion, and (2) improperly discounting Ms. Smith’s credibility.

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A.

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A “treating physician” is one who actually treats the claimant. Lester v. Chater, 81

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F.3d 821, 830 (9th Cir. 1995). When a treating doctor’s opinion is not contradicted by

Medical Opinion Evidence

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another doctor, it may only be rejected for clear and convincing reasons. Id. If a treating

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doctor’s opinion is contradicted by another doctor, it may only be rejected for “specific

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and legitimate reasons supported by substantial evidence in the record for so doing.” Id.

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(citations omitted).

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At the hearing, Dr. Eric Schmitter testified as a non-examining medical expert; he

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was questioned by both the ALJ and the Claimant’s attorney. (Tr. 37–40). He reviewed

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the record and agreed with a diagnosis of fibromyalgia. He noted that there was very

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modest orthopedic evidence. He opined that the Claimant’s pain might be a somatic

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manifestation of depression, and as such, she would need to increase rather than decrease

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her activity. He did not believe that the Claimant would have any limitations on lifting,

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standing, walking, sitting, climbing, kneeling, or reaching. The ALJ assigned

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Dr. Schmitter’s opinion great weight “because he has reviewed the entire medical

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evidence of record, made conclusions consistent with the record, answered the [ALJ’s]

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questions, and offered an explanation.” (Tr. 23).

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Dr. Michael Steingart, a treating physician, completed a form that opined on

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Claimant’s physical limitations. (Tr. 519–20). He stated that the Claimant could sit for

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four hours and stand or walk for two hours in an eight-hour workday. He believed

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Claimant would need to alternate positions every 21 to 45 minutes, and would need to

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rest for five to nine minutes after changing positions. He noted that Claimant could lift

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ten pounds and could frequently bend and use her hands or feet. He also believed that

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Claimant would need to have two to three absences from work per month. Dr. Steingart

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did note that he believed the Claimant could work; however, the vocational expert (VE)

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testified that there would be no work in the national economy for an individual with the

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limitations described by Dr. Steingart. (Tr. 52–53). The ALJ assigned Dr. Steingart’s

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opinion little weight. (Tr. 24). The ALJ stated that Dr. Steingart’s opinion was

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inconsistent with the opinion of the medical examiner. Dr. Steingart’s opinion was

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delivered through a check-the-box form with no explanation for the limitations. The ALJ

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stated that the “opinion seems to list the claimant’s subjective complaints rather than the

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objective evidence . . . [and] it may be possible that the doctor is being over sympathetic,

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which biases his objectivity.” Id. The ALJ noted that the opinion was inconsistent with

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the objective evidence.

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Fibromyalgia is a “rheumatic disease that causes inflammation of the fibrous

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connective tissues components of muscles, tendons, ligaments, and other tissue.” Benecke

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v. Barnhart, 379 F.3d 587, 589 (9th Cir. 2004). Its symptoms include “chronic pain

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throughout the body, multiple tender points, fatigue, stiffness, and a pattern of sleep

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disturbance that can exacerbate the cycle of pain and fatigue.” Id. at 590. Fibromyalgia is

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“diagnosed entirely on the basis of patients’ reports of pain and other symptoms . . . [and]

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there are no laboratory tests to confirm the diagnosis.” Id. At the same time, “the

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existence of fibromyalgia and related ailments is not synonymous with a finding of

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disability,” which “is a function of how much [the Claimant’s] fibromyalgia affects her

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ability to work.” Engquist v. Colvin, No. 11-cv-02455-PHX-GMS, *6 (D. Ariz. filed

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April 8, 2013); see also Nazzal v. Astrue, 316 Fed. Appx. 591, 593 (9th Cir. 2009) (“A

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diagnosis of fibromyalgia cannot automatically be beyond challenge.”) (Kleinfeld, J.,

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dissenting). There is a difference between a lack of objective evidence that a Claimant

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has fibromyalgia and a lack of objective evidence that the Claimant has disabling

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fibromyalgia. Social Security regulations note that it is important to “consider a

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longitudinal record whenever possible because the symptoms of [fibromyalgia] can wax

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and wane so that a person may have ‘bad days and good days.’” SSR 12-2p.

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Here, the ALJ found that Claimant had the severe impairment of fibromyalgia, but

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that Claimant was not disabled. The ALJ did so, in part, by discounting Claimant’s

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treating physician in favor of the medical expert. Where two physicians’ opinions

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contradict, the ALJ must provide specific and legitimate reasons for discounting the

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treating physician’s opinion. The ALJ’s reasons do not meet this standard. The ALJ

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discounted Claimant’s treating physician for using a checkbox form and not providing an

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adequate explanation. A physician’s opinion cannot be discounted solely for using a

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checkbox format. Ninth Circuit precedent is conflicting as to whether an ALJ is entitled

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to give less weight to a medical opinion where the checkbox format is not supported by

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commentary or explanations. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012)

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(“We have held that the ALJ may ‘permissibly reject[ ] . . . check-off reports that [do] not

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contain any explanation of the bases of their conclusions.’”) (quoting Crane v. Shalala,

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76 F.3d 251, 253 (9th Cir. 1996)); Trevizo v. Berryhill, 871 F.3d 664, 677 & n.4 (9th Cir.

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2017) (“[T]he ALJ was not entitled to reject the responses of a treating physician without

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specific and legitimate reasons for doing so, even where those responses were provided

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on a ‘check-the-box’ form, were not accompanied by comments, and did not indicate to

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the ALJ the basis for the physician’s answers.”). The ALJ did not reject the treating

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physician’s opinion, but rather, gave it less weight due to its lack of explanation for the

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basis of such an opinion. A checkbox form may be even more problematic in the case of

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fibromyalgia, where the patient’s description of symptoms is so crucial in determining

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whether the disease exists and is disabling. It does not allow a claimant’s symptoms to be

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evaluated and confirmed by examining and consulting physicians. Moreover, at steps one

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through four of the sequential evaluation, the claimant maintains the burden of proof.

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Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001). A checkbox form lacking

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explanation approaches a failure to meet the burden of proof.

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The Commissioner also responds that the ALJ gave other additional reasons for

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discounting Dr. Steingart’s opinion, and so made no error by criticizing the checkbox

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format. But the ALJ’s other reasons are problematic. The ALJ states that that there is no

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explanation why Claimant needs to change positions frequently and no explanation why

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hand and standing limitations are necessary. The ALJ provides no citation to the record

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for contrary findings. The Commissioner cites multiple parts of the record that could be

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used to provide support for the ALJ’s position. (Doc. 18, pp. 12, 14). None of these

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medical reports are cited by the ALJ, and “[l]ong-standing principles of administrative

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law require us to review the ALJ’s decision based on the reasoning and factual findings

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offered by the ALJ—not post hoc rationalizations that attempt to intuit what the

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adjudicator may have been thinking.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d

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1219, 1225 (9th Cir. 2009). The ALJ also asserts that Dr. Steingart is simply listing

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Claimant’s subjective complaints and being overly sympathetic. The ALJ fails to account

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for the nature of fibromyalgia, which relies on subjective complaints. The ALJ also gives

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no specific explanation as to how the doctor is biased. See Lester v. Chater, 81 F.3d 821,

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832 (9th Cir. 1995) (“While the Secretary ‘may introduce evidence of actual

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improprieties,’ no such evidence exists here.”). On the whole, the Court finds that the

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ALJ’s decision to discount the treating physician’s opinion was not supported by

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substantial and legitimate evidence. Because there is a need for the ALJ to make further

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factual findings and consider the evidence in line with fibromyalgia’s unique character,

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remand for further proceedings is appropriate. Treichler v. Comm’r of Soc. Sec. Admin.,

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775 F.3d 1090, 1099–1102 (9th Cir. 2014).

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B.

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When a claimant alleges subjective symptoms, like pain, the ALJ must follow a

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two-step analysis to decide whether to credit the claimant’s testimony. First, the claimant

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“must produce objective medical evidence of an underlying impairment which could

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reasonably be expected to produce the pain or other symptoms alleged.” Smolen v.

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Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (quoting Bunnell v. Sullivan, 947 F.2d 341,

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344 (9th Cir. 1991)) (quotation marks omitted). The claimant does not need to show “that

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her impairment could reasonably be expected to cause the severity of the symptom she

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has alleged; she need only show that it could reasonably have caused some degree of the

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symptom.” Smolen, 80 F.3d at 1282. Second, if the claimant can make the showing

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required in the first step and the ALJ does not find any evidence of malingering, “the ALJ

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can reject the claimant’s testimony about the severity of her symptoms only by offering

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specific, clear and convincing reasons for doing so.” Id. at 1281.

Claimant’s Credibility

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The ALJ found that Claimant’s fibromyalgia could cause some of her symptoms

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and pain, but that her statements regarding the intensity of the symptoms are not entirely

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credible. The ALJ noted that the Claimant’s reported activities of daily living to the

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consulting psychologist––such as feeding herself, showering, brushing teeth, preparing

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meals, ambulating independently, going to the grocery story, driving, going to the gas

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station, and running errands––demonstrate that her impairments are not disabling. (Tr.

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22). The ALJ also explained that Claimant had no difficulty with motor ability or sitting

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during both the hearing and an examination by a consulting psychologist. Id. Where a

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“claimant engages in numerous daily activities involving skills that could be transferred

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to the workplace, the ALJ may discredit the claimant’s allegations upon making specific

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findings relating to those activities.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir.

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2005). But, “[o]ne does not need to be ‘utterly incapacitated’ in order to be disabled.”

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Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (quoting Fair v. Bowen, 885 F.2d

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597, 603 (9th Cir. 1989)).

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The limited activities cited by the ALJ do not support a conclusion that Claimant

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engages in numerous activities that are transferable to the workplace. Moreover, the

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report from the consultative examiner which the ALJ relies on contains other statements

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from Claimant that contradict the ALJ’s characterization of Claimant’s daily activities.

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The consultative examiner states that “[t]he claimant reported she has difficulties

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performing activities of self-care.” (Tr. 450). Although Claimant acknowledged being

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able to feed herself and shower, she “requires assistance when attempting to complete

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activities that involve heavy lifting, bending[,] or stooping.” Id. Claimant told the

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consultative examiner that she could go to the grocery store and run errands but that

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“when she is required to engage in these activities independently she is in persistent and

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severe pain.” Id. The ALJ cannot select certain pieces of evidence to credit while

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ignoring others. The ALJ also found Claimant not credible because Claimant was able to

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sit without evidencing outward pain during both the consultative examination and the

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hearing. (Tr. 22). Given that Claimant has alleged severe restrictions in her ability to sit

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without pain, the Court agrees with the ALJ that these were fair considerations. However,

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without more, Claimant’s ability to sit for relatively short durations does not constitute

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substantial evidence.

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Finally, the ALJ notes that the Claimant’s reports of limitations are not supported

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by the medical expert’s assessment. The medical expert testified that there were “minimal

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findings in the record with relatively normal examinations” and “there was no organic

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basis for impairments.” The ALJ’s vague statements do not make clear whether the ALJ

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is discussing the lack of objective evidence for fibromyalgia or the lack of objective

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evidence for disabling fibromyalgia. That there are not examinations showing an organic

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basis for Claimant’s limitations does not conflict with there being severe fibromyalgia.

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The ALJ could support this conclusion by citing to evidence in the record that Claimant’s

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fibromyalgia is not disabling. However, the ALJ provides no citations for his claims and

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his broad generalizations do not count as substantial evidence.
CONCLUSION

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The ALJ’s decision is not supported by substantial evidence. The ALJ rejected the

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opinion of Claimant’s treating physician, but failed to provide specific and legitimate

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reasons for doing so. With a disease like fibromyalgia, the ALJ cannot just point to the

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lack of objective medical evidence; rather, the ALJ must find support in the medical

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record that the fibromyalgia is not disabling. The ALJ’s rejection of Claimant’s

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credibility was not supported by substantial evidence. Claimant’s activities of daily living

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were not sufficient to support a finding of non-disability and general statements of a lack

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of objective medical evidence are not sufficient. Because “there is conflicting evidence,

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and not all essential factual issues have been resolved,” the Court remands for further

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factual findings and development. Treichler, 775 F.3d at 1101.

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IT IS THEREFORE ORDERED that the ALJ’s decision is vacated and
remanded for further factual findings in accordance with this opinion.
Dated this 12th day of July, 2018.

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Honorable G. Murray Snow
United States District Judge

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