Thies v. Colvin
Filing
19
MEMORANDUM DECISION AND ORDER - For all the foregoing reasons, the Petition for Review (Dkt. 1 ) is GRANTED, and this case is REMANDED to the Commissioner of Social Security under sentence four of 42 U.S.C. § 405(g) for further proceeding consistent with this opinion. Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)
UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
KRYSTLE THIES
Case No. 1:15-CV-00258-REB
Petitioner,
MEMORANDUM DECISION AND
ORDER
vs.
CAROLYN W. COLVIN, Commissioner of Social
Security,
Respondent.
Now pending before the Court is Petitioner Krystle Thies’s Petition for Review (Dkt. 1),
filed July 12, 2015, seeking review of the Social Security Administration’s final decision to deny
her disability benefits. This action is brought pursuant to 42 U.S.C. § 405(g). Having carefully
reviewed the record and otherwise being fully advised, the Court enters the following
Memorandum Decision and Order.
I. BACKGROUND AND ADMINISTRATIVE PROCEEDINGS
Petitioner applied for SSDI benefits on June 6, 2013, alleging a disability onset date of
March 15, 2013. This claim was initially denied on September 4, 2013, and upon reconsideration
January 2, 2014. Thereafter, Petitioner requested a hearing before an ALJ, which occurred on
January 26, 2015. (AR 8). ALJ Luke Brennan presided over the hearing, at which the Petitioner
was present and represented by her attorney, Michael Whipple. An impartial vocational expert,
Polly Peterson, testified at the hearing, as did Petitioner herself. (AR 8). At or just before the
hearing, on the advice of her attorney, Petitioner requested that her alleged onset date be
MEMORANDUM DECISION AND ORDER - 1
amended to September 1, 2013. (AR 233, Petitioner’s Brief at p. 15). At the time of the hearing,
Petitioner was 27 years old, and had past work experience as a photo parts cashier/delivery
person, as an adult care-giver, as an auto parts cashier/delivery driver, and as a home health aide.
(AR 20).
On February 24, 2015, the ALJ issued a decision, denying Petitioner’s claims and finding
that Petitioner was not disabled within the meaning of the Social Security Act. (AR 5-19).
Petitioner timely requested review from the Appeals Council on February 25, 2014. (AR 25-26.)
The Appeals Council then denied review on August 26, 2014. (AR 1-4), rendering the ALJ’s
decision the Commissioner’s final decision. Plaintiff now seeks judicial review of the
Commissioner’s decision to deny benefits. She contends that the ALJ erred in three ways: 1) by
improperly evaluating the opinions of her treating doctor; 2) by failing to consider the sideeffects of Petitioner’s medication in assessing her residual functional capacity (“RFC”); and 3)
by improperly finding that she was not credible as to the claim that her back pain had worsened
around the time of the amended alleged disability onset date. (Petitioner’s Brief, Dtk. 13, p. 2).
Though the circumstances are such that there remains doubt as to whether Petitioner is
actually disabled, the Court nonetheless concludes that the ALJ’s adverse credibility
determination was based on an erroneous reading of the medical records, which did in fact
demonstrate that Petitioner’s back condition worsened around the time of the amended alleged
onset date. The Court also concludes that the ALJ’s evaluation of the medical opinion evidence
was likewise flawed. For these reasons, the Court remands this case to the Commissioner for
further proceedings consistent with this order.
II. STANDARD OF REVIEW
MEMORANDUM DECISION AND ORDER - 2
To be upheld, the Commissioner’s decision must be supported by substantial evidence
and based on proper legal standards. 42 U.S.C. § 405(g); Smolen v. Chater, 80 F.3d 1273, 1279
(9th Cir. 1996); Matney ex. rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992);
Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990). Findings as to any question of fact, if
supported by substantial evidence, are conclusive. 42 U.S.C. § 405(g). In other words, if there
is substantial evidence to support the ALJ’s factual decisions, they must be upheld, even when
there is conflicting evidence. Hall v. Sec'y of Health, Educ. & Welfare, 602 F.2d 1372, 1374
(9th Cir. 1979).
“Substantial evidence” is defined as such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005); Flaten v. Sec’y of Health & Human Servs.,
44 F.3d 1453, 1457 (9th Cir. 1995). The standard requires more than a scintilla but less than a
preponderance of evidence, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir.1975);
Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989), and “does not mean a large or
considerable amount of evidence.” Pierce v. Underwood, 487 U.S. 552, 565 (1988).
With respect to questions of fact, the role of the Court is to review the record as a whole
to determine whether it contains evidence that would allow a reasonable mind to accept the
conclusions of the ALJ. See Richardson, 402 U.S. at 401; see also Matney, 981 F.2d at 1019.
The ALJ is responsible for determining credibility and resolving conflicts in medical testimony,
and for resolving ambiguities. Andrews v. Shalala, 53 F.3d 12035, 1039 (9th Cir. 1995); Allen v.
Heckler, 749 F.2d 577, 579 (9th Cir. 1989). The ALJ is also responsible for drawing inferences
logically flowing from the evidence, Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982).
MEMORANDUM DECISION AND ORDER - 3
Where the evidence is susceptible to more than one rational interpretation in a disability
proceeding, the reviewing court may not substitute its judgment or interpretation of the record
for that of the ALJ. Flaten, 44 F.3d at 1457; Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir.
1985).
With respect to questions of law, the ALJ’s decision must be based on proper legal
standards and will be reversed for legal error. Matney, 981 F.2d at 1019. The ALJ’s
construction of the Social Security Act is entitled to deference if it has a reasonable basis in law.
See id. However, reviewing federal courts “will not rubber-stamp an administrative decision that
is inconsistent with the statutory mandate or that frustrates the congressional purpose underlying
the statute.” Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).
III. DISCUSSION
A.
Sequential Process
In evaluating the evidence presented at an administrative hearing, the ALJ must follow a
sequential process in determining whether a person is disabled in general (see 20 C.F.R. §§
404.1520, 416.920) - or continues to be disabled (see 20 C.F.R. §§ 404.1594, 416.994) - within
the meaning of the Social Security Act.
The first step requires the ALJ to determine whether the claimant is engaged in
substantial gainful activity (“SGA”). 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). SGA is
defined as work activity that is both substantial and gainful. “Substantial work activity” is work
activity that involves doing significant physical or mental activities. 20 C.F.R. §§ 404.1572(a),
416.972(a). “Gainful work activity” is work that is usually done for pay or profit, whether or not
a profit is realized. 20 C.F.R. §§ 404.1572(b), 416.972(b). If the claimant has engaged in SGA,
MEMORANDUM DECISION AND ORDER - 4
disability benefits are denied, regardless of how severe her physical/mental impairments are and
regardless of her age, education, and work experience. 20 C.F.R. §§ 404.1520(b), 416.920(b). If
the claimant is not engaged in SGA, the analysis proceeds to the second step. Here, the ALJ
found that the claimant had not engaged in SGA since the first quarter of 2013, well before the
amended alleged onset date of September 2013. (AR 10).
The second step requires the ALJ to determine whether the claimant has a medically
determinable impairment, or combination of impairments, that is severe and meets the duration
requirement. 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of
impairments is “severe” within the meaning of the Social Security Act if it significantly limits an
individual’s ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). An
impairment or combination of impairments is “not severe” when medical and other evidence
establish only a slight abnormality or a combination of slight abnormalities that would have no
more than a minimal effect on an individual’s ability to work. 20 C.F.R. §§ 404.1521, 416.921.
If the claimant does not have a severe medically determinable impairment or combination of
impairments, disability benefits are denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). Here, the ALJ
found that Petitioner had the following severe medical impairments: endometriosis, degenerative
disc disease, with a history of prior surgical fusion of the thoracic spine, scoliosis, and migraine
headaches. (AR 10).
The third step requires the ALJ to determine the medical severity of any impairments;
that is, whether the claimant’s impairments meet or equal a listed impairment under 20 C.F.R.
Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the
answer is yes, the claimant is considered disabled under the Social Security Act and benefits are
MEMORANDUM DECISION AND ORDER - 5
awarded. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant’s impairments neither meet nor
equal one of the listed impairments, the claimant’s case cannot be resolved at step three and the
evaluation proceeds to step four. 20 C.F.R. §§ 404.1520(e), 416.920(e). Here, the ALJ
concluded that Petitioner did not have an impairment or combination of impairments that met or
medically equalled the severity of one of the listed impairments. (AR 11-12).
The fourth step of the evaluation process requires the ALJ to determine whether the
claimant’s residual functional capacity is sufficient for the claimant to perform past relevant
work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). An individual’s residual functional
capacity is her ability to do physical and mental work activities on a sustained basis despite
limitations from her impairments. 20 C.F.R. §§ 404.1545, 416.945. Likewise, an individual’s
past relevant work is work performed within the last 15 years, or 15 years prior to the date that
disability must be established; also, the work must have lasted long enough for the claimant to
learn to do the job and be engaged in substantial gainful activity. 20 C.F.R. §§ 404.1560(b),
404.1565, 416.960(b), 416.965. Here, the ALJ determined that the Petitioner had the residual
functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a), and more
specifically, that she could lift up to ten pounds on an occasional basis and lift less than ten
pounds frequently. (AR 12). The ALJ also found that the claimant would be able to sit for up to
six hours in an eight-hour work day, but that she required the ability to alternate between sitting,
standing, and walking positions after she had been sitting for 30 minutes. Further, the ALJ
determined that the claimant could walk or stand for up to two hours in an eight hour day, with
similar stipulations that she be allowed to change positions every 30 minutes. The ALJ also
found that claimant could not reach overhead, and only occasionally stoop or crouch. (AR. 12).
MEMORANDUM DECISION AND ORDER - 6
These limitations meant that Petitioner could no longer perform her past relevant work.
In the fifth and final step, if it has been established that a claimant can no longer perform
past relevant work because of his impairments, the burden shifts to the Commissioner to show
that the claimant retains the ability to do alternate work and to demonstrate that such alternate
work exists in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v),
416.920(a)(4)(v), 404.1520(f), 416.920(f); see also Matthews v. Shalala, 10 F.3d 678, 681 (9th
Cir. 1993). If the claimant is able to do other work, she is not disabled; if the claimant is not able
to do other work and meets the duration requirement, she is disabled. The ALJ found, at step
five, that Petitioner is capable of making a successful adjustment to other work that exists in
significant numbers in the national economy. (AR 16-17.)
B.
Analysis
1.
The ALJ’s Credibility Evaluation
It is well established that if a disability claimant has one or more medically
determinable impairments that could give rise to his or her described symptoms, and if
there is no evidence that the claimant is malingering, an ALJ is required to make specific
findings as to the claimant’s credibility and to identify clear and convincing reasons for
each finding. Robbins v. Massanari, 466 F.3d 880, 883 (9th Cir. 2006). The
Commissioner's credibility determination must be supported by findings sufficiently
specific to permit the reviewing court to conclude the ALJ did not arbitrarily discredit a
claimant's testimony.” See, e.g. Norris v. Colvin, ___F.Supp.3d___, 2016 WL 410000
(E.D. Washington 2016) (citing Bunnell v. Sullivan, 947 F.2d 341, 345–46 (9th Cir.1991).
“If there is no affirmative evidence that the claimant is malingering, the ALJ must provide
MEMORANDUM DECISION AND ORDER - 7
‘clear and convincing’ reasons for rejecting the claimant's testimony regarding the
severity of symptoms.” Id. (quoting Reddick v. Chater, 157 F.3d 715, 722 (9th Cir.1998).
See also, Robbins v. Social Sec. Admin, 466 F.3d 880 (9th Cir. 2006); Smolen v. Chater,
80 F.3d 1273, 1281 (9th Cir. 1996).
In this case, the ALJ made adverse credibility findings, based primarily on two factors.
First, the ALJ concluded that “[a]lthough claimant indicated that her impairments worsened
around her amended alleged onset date, by producing more limitations in her daily activities, this
allegation is inconsistent with written reports in which she indicated there was no change in her
condition.” (AR 15). The ALJ also found that the claimant’s assertion that her impairments had
worsened around September of 2013 was “also inconsistent with a lack of medical evidence,
suggesting a worsening condition subsequent to her statements that she was capable of
performing daily activities including caring for her children.” Petitioner challenges the second of
these assertions.
Petitioner’s argument that her condition became markedly worse in September of 2013
depends mainly on the records of Dr. Dubose, a pain specialist whom Petitioner began seeing
when she moved to the Nampa, Idaho area. She first saw Dr. Dubose on September 17, 2013. On
that day, Dr. Dubose noted that the patient had a long history of scoliosis and back pain. (AR
348). He also noted that the scoliosis had persisted despite a previous fusion surgery, though he
characterized this condition as “mild.” (AR 348). On that day Petitioner said her pain had
recently gotten worse and that she “can barely do anything now,” and that she was having
difficulty with the basic activities of daily living. (AR. 349). She described her pain level as
being 10 out of 10 at the worst and 3 out of 10 at the best. (Id.) Dr. Dubose decided to start her
MEMORANDUM DECISION AND ORDER - 8
on a prescription for methadone, but also noted that her pain “had become chronic” and that
there was no treatment that was likely to allow a pain-free existence, and that the treatment goal
would be to maximize quality of life while minimizing treatment side effects. (AR 350). Dr.
Dubose also decided to treat Petitioner with sacro-iliac joint injections. (AR. 354).
The Petitioner returned to Dr. Dubose’s clinic on October 9, 2013 and was seen by
another provider. She said then that the methadone was working and that it made her “so happy.”
She reported that the joint injections, however, had made things worse, to the point where she
could not get anything done around the house. (Id.). The provider’s assessment of that date was
somewhat equivocal, in that he found no signs of “pain amplification behavior,” but also noted
that there was “little objective evidence, so far as behavior, that the patient is in pain.” (AR 355).
On November 12, 2013 she returned again and was seen this time by Dr. DuBose. She
talked with him about the “breakthrough pain,” and she said the methadone made her sleepy and
was not working as well as she would like. She that hydrocodone didn’t seem to work as much
as it had in the past. (AR 357). Her methadone dose was increased to 10 mg every eight hours
(AR 357).
At the next visit, on December 10, 2013, Dr. Dubose noted that her condition had not
changed since the previous visit and that she was not engaging in activities of daily living
(“ADLs”). (AR 360). Elsewhere in the same office note, however, there is mention that she was
was “moving better,” and that her ability to engage in ADLs “improved with increased activity.”
Dr. Dubose also noted that “overall, her affect and mood have improved with VAS consistently
reported as lower on the current treatment regimen.” (AR 361).
In January of 2014, however, Petitioner reported to Dr. Dubose that she had a new area of
MEMORANDUM DECISION AND ORDER - 9
pain or “lump” on her lower sacroiliac joint. She said that this happened a couple of times a year.
(AR 365). Dr. Dubose observed tenderness at this site and noted a large “trigger point” over the
sacro-iliac joint. Dr. Dubose offered additional injections for treatment, which she declined, and
referred her to physical therapy.
In the February 2014 visit, Petitioner said the pain medication was making her sleepy,
that she could not accomplish much, and that it was getting harder to participate in the activities
of daily living. (AR 368). Dr. DuBose said in his notes from that visit that “no matter what we do
from an interventional standpoint she will probably have some component of pain the rest of her
life.” (AR 368). He said further that “since pain is now chronic no medication, procedure or
intervention is likely to allow a pain-free existence. Maximizing quality of life, ADLs, mood
while minimizing treatment side effects and dependence on care-givers should be the goal.”
After an April 2014 visit, Dr. Dubose wrote in his chart that Petitioner’s condition was
essentially unchanged from the previous visit and that the methadone was making her sleepy.
(AR 374-75). His May 2014 visit note says that her pain medication was working well but that
she was still having unwanted side effects, and so he decided to titrate the methadone down. (AR
377). By June 5, 2014 Petitioner had improved in certain respects. Dr. Dubose’s notes from that
visit indicate that “since the last visit, the patient states she has been doing well on tapering the
Methodone. She feels ‘way better” from [a] cognitive standpoint.” (AR 379). However, Dr.
Dubose also noted an increase in her hip pain, although her mood was described as “improved”
and her activities of daily living were about the same as before. (Id.).
However, two weeks later, on June 18, 2014, the pain had worsened and she said the
Duragesic patch Dr. Dubose had prescribed had given her a “wicked headache.” (AR 382). Dr.
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Dubose also noted that the current medication regimen was less effective and that Petitioner’s
pain was described as being at a level 8 out of 10. (Id.). Further, he described her chronic pain
syndrome problem as “currently worsening.” (Id.)
The Petitioner returned the following week, at which time Dr. Dubose noted, “since the
last visit, the pain has worsened. She has been under poor control,” and that Petitioner was
“tearful and somewhat angry.” (AR 385). In July of 2014 the pain was still worsening, so Dr.
Dubose elected to restart Methadone. (AR 387-88). The methadone was apparently effective,
because several days later, on July 17, 2014, when Petitioner came in for a medication check, Dr.
Dubose noted that the medications were “working well,” that her mood was “upbeat,” and that
her ability to engage in the normal activities of daily living had improved somewhat. (AR. 389).
This somewhat improved condition appeared stable throughout September of 2014, as her
condition was about the same, (AR 391-94). She also said that her condition was “the same”
when she saw another provider in Dr. Dubose’s office on November 20, 2014, and again on
December 17, 2014. (AR. 397, 399). Petitioner’s hearing before the ALJ was held the following
month.
It is against this evidence that the Court must consider the ALJ’s adverse credibility
determination. One reason the ALJ discredited Petitioner’s testimony about her pain and
subjective limitations was because he concluded that her assertion that her condition worsened
beginning in September of 2013 was inconsistent with the overall medical evidence. But plainly,
a careful review of Dr. Dubose’s records indicates that during this time period, Petitioner’s longstanding back pain had indeed become a chronic condition, and Dr. Dubose had considerable
difficulty in managing that condition.
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The medical records from September through December of 2014 do reveal that Petitioner
had some degree of improvement in her pain symptoms beginning in September of 2014 and
continuing into the fall and winter. The fact that Petitioner may have eventually improved
somewhat certainly has bearing on the ultimate question of whether she was entitled to disability
benefits, because a condition that can be adequately managed with medication is not necessarily
disabling. However, to acknowledge that Petitioner’s condition may eventually have improved
(after a year of treatment) is not the same thing as saying that her condition never got worse in
the first place. The medical records provide ample support that a long-standing problem with
back pain became more frequent and more acute around September of 2013. The ALJ’s
conclusion to discredit Petitioner’s credibility because the medical records did not bear out her
assertion that her condition worsened is simply not supported by clear and convincing evidence
and therefore does not provide a sound basis for the adverse credibility determination.
The Court must next consider whether the ALJ’s other reasons for finding Petitioner not
fully credible are sufficient to uphold his decision, in spite of the error identified above. The
ALJ’s second reason for finding that Petitioner was not fully credible was an inconsistency
between Petitioner’s claim that her condition worsened in September of 2013 and certain written
reports indicating that there had been no change in her medical condition at various points after
the original application for disability benefits had been filed. (AR 209, 211, 216, 219). While
inconsistencies between statements or testimony made under oath and statements made to
medical care providers would ordinarily provide a sound basis for an adverse credibility
determination, the Court concludes that, on the narrow facts of this case, the ALJ’s reliance on
these documents was error. The Court has reviewed the documents in question, and notes that
MEMORANDUM DECISION AND ORDER - 12
they were not signed by Petitioner herself, but rather, appear to have been prepared by her
attorney. These records date from October of 2013 and January of 2014, at a time when
Petitioner had been under treatment by Dr. Dubose for only a relatively short amount of time.
Petitioner’s counsel did not request that the alleged onset date of disability be amended until
January 19, 2015, which was days before the hearing before the ALJ. In other words, what the
ALJ believed to be an inconsistency attributable to the Petitioner may have simply been a result
of her counsel’s retrospective reassessment of the strength of the medical evidence about a
potentially disabling condition that was developing or changing over time. For these reasons, and
on the narrow facts of this case, the perceived inconsistencies between the Petitioner’s claim that
her symptoms got worse around September of 2013 and the later filed disability reports do not
constitute clear and convincing evidence for an adverse credibility determination.
2.
Assessment of Medical Source Testimony
Plaintiff also contends that the ALJ failed to properly evaluate the medical opinion
evidence. In particular, she argues that the ALJ did not accord sufficient weight to the opinions
of a treating doctor, Dr. Erik Richardson, who saw Petitioner in January of 2013 and conducted a
residual functional capacity (“RFC”) assessment. (AR at 344-347). After that assessment, Dr.
Richardson assigned Petitioner a number of very stringent limitations, among which were that
she could not sit for longer than two minutes at a time, could not stand for longer than five
minutes at a time, and that she could not sit, or stand or walk, for more than two hours during an
eight hour period. (AR. 345). Dr. Richardson also said that any job Petitioner might seek would
need to allow for periods of walking around, and that she would have to walk every five or ten
minutes, for approximately seven minutes each. (AR 350). Dr. Richardson further opined that
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Petitioner would need to take unscheduled breaks approximately nine times in an eight hour
workday, and that she would need ten minutes of rest before returning to work. (AR 346). He
also assigned a number of functional limitations on activities such as carrying, twisting,
stooping, climbing, and reaching.
The ALJ’s stated reasons for rejecting Dr. Richardson’s opinions were as follows. First,
he stated that he was affording only partial weight to those opinions because they were “not
consistent with the records as a whole, and in particular, the claimant’s self-report of her daily
functioning.” (AR 16). He also noted that Dr. Richardson’s opinion that claimant could not sit
for more than two minutes at a time was questionable, given that she sat through the hearing, and
that the ALJ’s opinion that claimant would be absent from work up to four days a month was
speculative. Ultimately, the ALJ elected to give more weight to the assessment of Dr. James
Bates, who had assessed Petitioner in August of 2013 and concluded that she was capable of
working at the light to sedentary levels. (AR 16).
The ALJ’s reasons for rejecting Dr. Richardson’s opinions were insufficient. In the first
place, one of the ALJ’s primary stated reasons for rejecting the Richardson opinion was his
apparently belief that it was inconsistent with the claimant’s self-reports of her daily functioning.
However, that reason does not support the ALJ’s decision, because, as discussed above, the
ALJ’s adverse credibility determination was itself flawed, and based upon a misreading of the
medical evidence, particularly the records of Dr. DuBose. And, just as fundamentally, the ALJ’s
decision to give greater weight to the opinion of Dr. Bates was erroneous, because that opinion
was generated before Petitioner’s amended alleged onset date of September 2013. As one district
court has recently noted, it is “particularly problematic,” for an ALJ to rely on medical opinions
MEMORANDUM DECISION AND ORDER - 14
from before an amended alleged disability onset date where he also fails to discuss significant
probative evidence dated after the alleged date of onset that contradicted his findings. Tippin v.
Colvin, 2016 WL 2984275 at *2 (W.D. Wash. 2015). Here, the ALJ did not fail to consider the
medical records from Dr. DuBose indicating that Petitioner’s condition had worsened, but he did
mis-characterize that evidence, which amounts to much the same thing.
Nor is the Court persuaded by the Commissioner’s arguments that Dr. Richardson
opinions were invalid because he did not provide the evidentiary basis for his conclusions.
(Respondent’s Brief at p. 7-8). Petitioner has pointed to evidence that suggests that Dr.
Richardson did not reach his opinions out of the blue, but instead, was relying on information he
received from Dr. DuBose. In particular, Petitioner points to a portion of the RFC form in which
Dr. Richardson indicated that he was basing his opinions on “pain management notes/studies,” a
notation which Petitioner takes to mean that Dr. Richardson had reviewed Dr. Dubose’s records
before filling out the RFC form. (AR 344). While the Commissioner argues that there is no
evidence for this assertion, Dr. Richardson was the provider who referred the claimant to Dr.
Dubose in the first place, and at least some of Dr. DuBose’s treatment record were directly
addressed to Dr. Richardson. (AR 348-351). For these reasons, the Court is not persuaded by the
Commissioner’s suggestion that Dr. DuBose’s opinions were wholly speculative.
Finally, the Court considers the ALJ’s assertion that Dr. Richardson’s opinions as to
absenteeism were speculative, as well as his reliance on the contradiction between Dr.
Richardson’s opinion that the claimant could only sit for two minutes at a time and the fact that
she sat through the whole hearing without apparent difficulty. While the ALJ was on somewhat
more solid ground here, these rationales are insufficient to overcome the more fundamental flaws
MEMORANDUM DECISION AND ORDER - 15
in the ALJ’s opinion discussed above, namely, the fact that the adverse credibility determination
rested on the ALJ’s erroneous belief that Petitioner’s condition did not get worse around
September of 2013, when the medical records support that assertion, and the fact that the ALJ
was relying primarily on facts and information from before the amended alleged onset date.
3.
Side Effects of Medication
Finally, the Court also concludes that the ALJ failed to properly consider the side effects
of medication. “In determining a claimant's limitations, the ALJ must consider all factors that
might have a significant impact on an individual's ability to work, including the side effects of
medication. . . . [S]ide effects can be a ‘highly idiosyncratic phenomenon’ and a claimant's
testimony as to their limiting effects should not be trivialized. Thus, when a claimant testifies she
is experiencing a side effect known to be associated with a particular medication, the ALJ may
disregard the testimony only if he support[s] that decision with specific findings similar to those
required for excess pain testimony.” Burger v. Astrue, 536 F.Supp.2d 1182 , 1189 (C. D.
California 2008) (citing Erickson v. Shalala, 9 F.3d 813, 817-18 (9th Cir. 1993).
In this case, Petitioner testified that when she was taking 10 milligram methadone it
helped tremendously with the pain, but she was always sleeping. (AR 48). She testified that the
lower dose of methadone combined with oxycodone helped her to stay a little more alert and at
this dosage she “wasn’t a zombie all the time.” However, she also testified that the lower dose
did not entirely take her pain away so it was “sort of a trade-off.” (AR 49). Further, she testified
to having some difficulty concentrating and remembering things even after the dosage of
methadone was lowered. (AR 49, 57). However, the ALJ did not consider side effects of
methadone at all, except to state that they were not as bad when the dose was lowered. (AR 15).
MEMORANDUM DECISION AND ORDER - 16
He also gave no consideration to the effect of diminished concentration and forgetfulness on
Petitioner’s ability to work. Therefore the side effects of methadone (or any other medications
that Petitioner is currently on) should be considered on remand along with all other relevant
evidence.
CONCLUSION
While the ALJ’s decision was premised on legal error that requires reversal, it remains to
be seen on remand whether Petitioner is in fact disabled. The Court recognizes that the very fact
that Petitioner elected to amend her alleged onset date may have some bearing on her credibility,
and certainly, the log of daily activities that she filled out in her initial application for disability
benefits is indicative of someone who was, at least at that point, able to perform the usual
activities of daily living. Cf. Parris v. Colvin, 2015 WL 1263225 at (W.D. Wa. 2015) (finding
that inconsistencies in the alleged onset dates may have some bearing on credibility but
nonetheless remanding because the ALJ did not provide clear and convincing reasons for an
adverse credibility finding). However, the Petitioner elected to amend her alleged onset date on
the advice of her attorney, probably recognizing that the evidence from before September 2013
would not have been sufficient to establish her claim for disability. (AR 197-205). While the
Court can understand that this sequence of events may have caused the ALJ to view the
Petitioner’s claims with some degree of skepticism, at the same time, Dr. Dubose’s records
clearly indicate that Petitioner’s long-standing intermittent back pain did in fact become a
chronic condition around the fall of 2013. For this reason, the ALJ’s decision to rest his
credibility determination on the notion that the records did not indicate that her condition had
worsened was an error that requires a remand. Discounting the Petitioner’s credibility for this
MEMORANDUM DECISION AND ORDER - 17
reason was not a discrete error that can be cordoned off from the rest of the decision
under a harmless error analysis, but rather, was a decision that had repercussions for other
aspects of the decision as well, particularly the ALJ’s decision to give little weight to the
opinions of Dr. Richardson. Upon remand, updated medical records will be crucial evidence
on the question of whether Petitioner is in fact disabled or whether her chronic pain condition
has stabilized under continued treatment such that she is able to work. The ALJ may also wish to
obtain an updated residual functional capacity assessment from Dr. Bates, Dr. Richardson, or any
other medical provider deemed appropriate.
ORDER
For all the foregoing reasons, the Petition for Review (Dkt. 1) is GRANTED, and this
case is REMANDED to the Commissioner of Social Security under sentence four of 42 U.S.C. §
405(g) for further proceeding consistent with this opinion.
DATED: September 30, 2016
Honorable Ronald E. Bush
Chief U. S. Magistrate Judge
MEMORANDUM DECISION AND ORDER - 18
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