Maiden v. Commissioner Social Security Administration

Filing 25

Opinion and Order: The Commissioners final decision is therefore reversed, and this case is remanded for further proceedings consistent with this opinion. Signed on 2/27/2018 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JESSICA MARIANNE MAIDEN,
Plaintiff,

Civ. No. 2:17-cv-00420-MC

v.

OPINION AND ORDER

NANCY A. BERRYHILL,
Acting Commissioner of the Social Security
Administration,
Defendant.
_____________________________
MCSHANE, Judge:
Plaintiff Jessica Marianne Maiden (“Maiden”) seeks judicial review of the
Commissioner’s decision denying her application for Supplemental Security Income (“SSI”)
under Title XVI of the Social Security Act (“the Act”). This court has jurisdiction under 42
U.S.C. §§ 405(g) and 1383(c)(3). Because the Commissioner’s decision is not based on proper
legal standards or supported by substantial evidence, the decision is REVERSED, and this case is
REMANDED for further proceedings.
BACKGROUND
Maiden filed applications for SSI on March 7, 2013, and children’s disability benefits
under Title II on April 4, 2013, alleging disability onset dates of January 1, 1997, and December
1, 2014, respectively. Tr. 84-87.1 After the Commissioner denied the applications initially and
upon reconsideration, Maiden requested a hearing before an administrative law judge (“ALJ”),

1

“Tr.” refers to the transcript of the Social Security Administration’s (“SSA”) administrative record.

1 - OPINION AND ORDER

which was held on November 10, 2015. Tr. 35-53. 2. On December 1, 2015, ALJ Paul G. Robeck
issued a written decision finding Maiden not disabled. Tr. 20-28. On January 23, 2017, the
Appeals Council denied Maiden’s subsequent request for review, so the ALJ’s decision became
the final decision of the Commissioner. Tr. 1-3. This appeal followed.
STANDARD OF REVIEW
The reviewing court shall affirm the Commissioner’s decision if the decision is based on
proper legal standards and the legal findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
“Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Hill
v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980
(9th Cir. 1997)). To determine whether substantial evidence exists, I review the administrative
record as a whole, weighing both the evidence that supports and that which detracts from the
ALJ’s conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989). “If the evidence can
reasonably support either affirming or reversing, ‘the reviewing court may not substitute its
judgment’ for that of the Commissioner.” Gutierrez v. Comm’r of Soc. Sec. Admin., 740 F.3d
519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)).
DISCUSSION
A claimant is disabled if he or she is unable to “engage in any substantial gainful activity
by reason of any medically determinable physical or mental impairment which . . . has lasted or
can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C. §
423(d)(1)(A). The Social Security Administration (“SSA”) utilizes a five-step sequential

2

Maiden withdrew her request for children’s disability benefits under Title II during her hearing. Tr. 20. 36-37.
Accordingly, only the Commissioner’s denial of her request for SSI benefits under Title XVI is at issue in this case.

2 - OPINION AND ORDER

evaluation to determine disability. 20 C.F.R. §§ 404.1520; 416.920 (2012). The initial burden of
proof rests upon the claimant to meet the first four steps. If a claimant satisfies his or her burden
with respect to the first four steps, the burden then shifts to the Commissioner for step five. 20
C.F.R. § 404.1520. At step five, the Commissioner must demonstrate the claimant is capable of
making an adjustment to other work after considering the claimant’s residual functional capacity
(“RFC”), age, education, and work experience. Id. If the Commissioner fails to meet this burden,
the claimant is considered disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If,
however, the Commissioner proves the claimant is able to perform other work existing in
significant numbers in the national economy, the claimant is found not disabled. Bustamante v.
Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001).
At step one, the ALJ determined Maiden had not worked since March 7, 2013, the
application date. At step two, the ALJ concluded that Maiden had the following severe
impairments: fibromyalgia; depression; and anxiety. Tr. 22. The ALJ noted that Maiden’s
psoriatic arthritis was well-controlled with Humira, and therefore did not find it “severe.” Tr. 23.
Between steps three and four, the ALJ assessed Maiden’s RFC. He determined Maiden retains
the capacity to perform light work, except that she is limited to unskilled work with incidental
public contact and occasional postural activities. Tr. 24. At step four, the ALJ found Maiden did
not have any past relevant work. Tr. 27. At step five, based on the testimony of a vocational
expert (“VE”), the ALJ concluded that Maiden could perform jobs that exist in significant
numbers in the national economy, including photocopy machine operator, and seedling sorter.
Tr. 27-28.

3 - OPINION AND ORDER

Maiden contends the ALJ: (1) erroneously discredited her symptom testimony; and (2)
erroneously discredited the opinion of her treating physician in favor of the state agency
physician’s opinions.
I. Credibility Analysis
Maiden argues the ALJ erred by rejecting her subjective symptom testimony. An ALJ is
not “required to believe every allegation of disabling pain, or else disability benefits would be
available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Molina v. Astrue,
674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989)).
The ALJ “may consider a range of factors in assessing credibility.” Ghanim v. Colvin, 763 F.3d
1154, 1163 (9th Cir. 2014). These factors can include “ordinary techniques of credibility
evaluation,” id., as well as:
(1) whether the claimant engages in daily activities inconsistent with the alleged
symptoms; (2) whether the claimant takes medication or undergoes other
treatment for the symptoms; (3) whether the claimant fails to follow, without
adequate explanation, a prescribed course of treatment; and (4) whether the
alleged symptoms are consistent with the medical evidence.
Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir.2007). However, a negative credibility
finding made solely because the claimant’s symptom testimony “is not substantiated
affirmatively by objective medical evidence” is legally insufficient. Robbins v. Soc. Sec. Admin.,
466 F.3d 880, 882 (9th Cir. 2006). Nonetheless, the ALJ’s credibility finding may be upheld
even if not all of the ALJ’s rationales for rejecting claimant testimony are upheld. See Batson,
359 F.3d at 1197.
Maiden argues that the ALJ cherry-picked the record to establish that her testimony was
inconsistent with her activities of daily living (“ADLs”) and that she had improved with
treatment, while ignoring evidence that Maiden’s symptoms wax and wane, and therefore render
her unable to sustain regular work. See, e.g., Garrison v. Colvin, 759 F.3d 992, 1017 (9th Cir.
4 - OPINION AND ORDER

2014). The ALJ specifically noted that Maiden’s Humira injections were helping her psoriasis
and fibromyalgia-related pain in March 2014, and that in September 2015, Dr. Hoffman
observed she had much better functionality, as she was “not close to bedridden as she had been
in the past.” Tr. 488. However, there is a sizeable gulf between not being bedridden due to pain
and being able to sustain gainful employment, as the Ninth Circuit has frequently reiterated. See,
e.g., Cooper v. Bowen 815 F.2d 557, 661 (9th Cir. 1987) (claimant need not vegetate in dark
room in order to qualify for benefits). Contrary to the ALJ’s finding, Dr. Hoffman’s comment
supported Maiden’s allegation that she had been “bedridden” at times, and Dr. Hoffman
additionally observed that despite Maiden’s improvement, she was “acutely tearful, as a result of
her functional status, difficulty with ADLs, [and] chronic pain.” Tr. 488.
Similarly, although Dr. Daoud noted Maiden’s good response to Humira in March 2014,
the doctor nevertheless observed that Maiden still had significant pain complaints. Tr. 529.
Maiden also reported pain to Dr. Daoud in August 2014 despite better activity levels. Tr. 531-32.
Maiden reported interval flares of pain in January 2015 which did not prompt Dr. Daoud to
increase her dosage of Humira, but by July 2015 she had painful joints and increased psoriasis.
Tr. 535-537. In September 2015, Dr. Hoffman observed “significant flaking and irritation on the
elbows and knees,” and the next month Dr. Daoud reported a “significant flare of her skin
disease,” including a painful, itchy rash which was progressing on her legs and feet. Tr. 488,
589-90. Although Dr. Daoud reported “significant improvement in her skin disease” in January
2016, Maiden also reported worsening pain, which the doctor attributed to fibromyalgia. Tr. 593.
In June 2016, Maiden continued to report “significant skin complaints” and “increased pain in
knees and hips,” although Maiden’s psoriatic rash had cleared. Tr. 595-96.

5 - OPINION AND ORDER

Accordingly, the record as a whole does not support the ALJ’s finding that overall,
Maiden has had “a good response to treatment.” Tr. 25. Indeed, as SSR 12-2p sets out, “for a
person with [fibromyalgia], we will consider a longitudinal record whenever possible because
the symptoms of [fibromyalgia] can wax and wane so that a person may have “bad days and
good days.” 2012 WL 3104869, at *6. Medical improvement “must be read in the context of the
overall diagnostic picture the provider draws . . . [because] [o]ccasional symptom-free periods
are not inconsistent with disability.” Ghanim, 763 F.3d at 1162 (citations omitted) (internal
quotation marks and ellipses omitted). Accordingly, the ALJ here appeared to give credence to
Maiden’s occasional reports of waning pain symptoms and increased functionality, but glossed
over the many reports of chronic pain and impaired functionality. See Garrison, 759 F.3d at 1018
(“[T]he data points [the ALJ] choose[s] must in fact constitute examples of a broader
development to satisfy the applicable ‘clear and convincing’ standard.”) (emphasis in original).
The ALJ also provided a brief passage explaining why Maiden’s ADLs contradicted her
allegations that she is “bedridden at times” and “cannot lift a hairbrush half the time.” Tr. 25.
For the reasons discussed above, the finding regarding being bedridden was not clear and
convincing. Further, although the record includes a number of examinations reflecting normal
hand functioning, other records demonstrated abnormal results, including diminished sensation,
weakness, and pain. See Tr. 441, 470-71, 537, 592-93, 595-96. As such, the record reflects a
significant history of hand complaints, which is not inconsistent with Maidens assertion that she
cannot hold her hairbrush “half the time.” Similarly, although Maiden reported being able to
assist family members on occasion and provide basic care for her dependent sons, the ALJ’s
finding was not clear and convincing, as “the mere fact that she cares for small children does not
constitute an adequately specific conflict with her reported limitations.” Trevizo v. Berryhill, 871

6 - OPINION AND ORDER

F.3d 664, 682 (9th Cir. 2017). Indeed, Maiden indicated that although she is able to perform
some basic household chores, they require an inordinate amount of time, which suggests that she
either takes breaks or works at a pace incompatible with normal workplace requirements. See Tr.
245; Fair, 885 F.2d at 603. The ALJ’s findings were not clear-and-convincing.
The ALJ additionally found that Maiden’s mental symptoms improved with medications,
such that by December 2014, she could perform all of her ADLs including caring for her
children. Tr. 25-26. Maiden does not appear to contest the ALJ’s findings in this regard, and
therefore the Court declines to disturb the ALJ’s finding. However, the Court notes that Maiden
did not assert that her mental symptoms alone are disabling, and furthermore, the ALJ did not
identify with any degree of specificity what testimony the evidence of improved mental wellbeing undermined. See, e.g., Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993) (ALJ must state
which testimony is not credible and what evidence supports the finding). Nevertheless, because
the ALJ provided invalid rationales for finding Maiden’s physical allegations non-credible, the
ALJ’s finding with regard to Maiden’s improved mental symptoms is insufficient to render the
other errors harmless. See Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014) (a weak, but
otherwise valid, rationale may be insufficient to affirm a negative credibility finding) (citing
Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)).
II. Medical Opinion Evidence
An ALJ is responsible for resolving ambiguities and conflicts in the medical testimony.
Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ must give clear and
convincing reasons for rejecting the uncontradicted medical opinion of a treating or examining
physician, or specific and legitimate reasons for rejecting contradicted opinions, so long as they
are supported by substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).

7 - OPINION AND ORDER

Nonetheless, treating or examining physicians are owed deference and will often be entitled to
the greatest, if not controlling, weight. Orn, 495 F.3d at 633 (citation and internal quotation
omitted). An ALJ can satisfy the substantial evidence requirement by setting out a detailed
summary of the facts and conflicting evidence, stating his interpretation, and making findings.
Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 600-01 (9th Cir. 1999). However, “the ALJ
must do more than offer his conclusions. He must set forth his own interpretations and explain
why they, rather than the doctors’, are correct.” Reddick, 157 F.3d at 725 (citation omitted). On
this record, the treating and examining doctors’ opinions are contradicted by the state medical
examiners. Tr. 20-21. Accordingly, the ALJ’s reasons for rejecting the treating and examining
physicians must be specific and legitimate, and supported by substantial evidence. See Garrison,
759 at 1012.
The ALJ provided a perfunctory dismissal of the medical opinion of Dr. Hoffman, who
indicated Maiden could never lift 20 pounds, could only lift 10 pounds occasionally, was limited
to standing and walking for four hours and sitting for less than two hours per workday, and
would require breaks every 30 to 60 minutes, among other limitations. Tr. 26, 436-39. The ALJ
accorded “little weight” to the doctor’s assessment, noting the limitations were not supported by
specific evidence, and were based on Maiden’s purportedly non-credible symptom allegations.
Instead, the ALJ accorded great weight to the non-examining State agency consultants, which he
found “more consistent with the treatment records, which reflected a good response to
treatment.” Tr. 26.
For the reasons articulated above, two of the ALJ’s rationales for rejecting Dr. Hoffman’s
assessment are not valid: (1) the ALJ’s erroneous credibility finding, and (2) purported

8 - OPINION AND ORDER

inconsistency with the treatment records, which reflected waxing and waning of pain and flares
of psoriatic arthritis, rather than a clear pattern of improvement.
Maiden argues that the ALJ erroneously determined Dr. Hoffman’s assessment was
unsupported by objective evidence, because his treatment notes consistently reflected waxing
and waning of pain symptoms. Indeed, Dr. Hoffman indicated that his assessed limitations were
based on Maiden’s complaints of “consistent chronic complaints.” Tr. 439. The Commissioner
accurately asserts that Dr. Hoffman did not list any objective test results to justify the degree of
limitations assessed, however, contrary to the Commissioner’s argument, Dr. Hoffman made
numerous clinical findings during the extended period over which he treated her, including
various findings of pain and numbness, as well as observations of signs of psoriasis. See, e.g., Tr.
464-65, 472-73, 486-87. Nevertheless, the Court agrees that there is little clinical evidence that
explicitly correlates to Dr. Hoffman’s assessed limitations regarding standing and walking,
manipulation of hands and arms, and lifting and carrying. See Tr. 436-38. Although “pain” may
well limit Maiden to the extent Dr. Hoffman assessed, the ALJ did not err in finding that the
doctor did not adequately support the limitations assessed with concrete clinical findings. In
short, on those occasions when Maiden reported significant pain, Dr. Hoffman’s notes do not
include evidence that he evaluated her ability to sit, stand, or walk, manipulate objects with her
hands, or lift and carry. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir.
2009) (ALJ need not accept a physician’s opinion that is brief, conclusory, or unsupported by
objective findings); see also Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir.
1999) (physician’s reports should demonstrate how a claimant’s symptoms translate into specific
functional deficits). Although Maiden provides an alternative interpretation of Dr. Hoffman’s

9 - OPINION AND ORDER

opinion, the Court is bound to affirm the ALJ’s interpretation, where, as here, it is rational and
supported by the record. Batson, 359 F.3d at 1193.
Although the Court does not find legal error in the ALJ’s rejection of Dr. Hoffman’s
opinion for lack of sufficient clinical evidence, it would be inconsistent to affirm the ALJ’s
finding that the state agency physician opinions should be accorded “great weight” despite the
absence of clinical findings. Tr. 26. In stark contrast to Dr. Hoffman, who presumably based his
opinion on his personal treatment relationship with Maiden over a period of years, the state
agency consultants never treated nor examined Maiden at all. Although the state agency
physicians assessed specific functional limitations, their opinions were no more supported by
specific clinical findings than Dr. Hoffman’s. See Tr. 79-80, 101-02. Although the ALJ found the
non-examining physician opinions were “consistent with the records reflecting good response to
treatment,” the record simply does not reflect that conclusion for the reasons discussed herein.
Similarly, the state agency doctors opinions are not consistent with Maiden’s uncontradicted
testimony that although she can perform ADLs, they require an inordinate amount of time to
complete. Furthermore, the state agency physician opinions were rendered in 2013 and 2014, and
were therefore rendered without the benefit of the full longitudinal medical record, which
included a number of chart notes describing continuing fibromyalgia pain and flares of psoriasis,
as noted by Dr. Daoud in 2015 and 2016. See Tr. 588-96. As such, the ALJ erred in according
the state agency physicians’ opinions great weight. See Lester v. Chater, 81 F.3d 821, 831 (9th
Cir. 1995) (the opinions of non-examining physicians cannot alone constitute substantial
evidence).
///
///

10 - OPINION AND ORDER

III. Remand for Further Proceedings
Maiden argues that because the ALJ erred in evaluating her symptom testimony, it
should be credited as true, and benefits awarded. However, the Court does not reach the issue of
crediting Maiden’s testimony because the administrative record is incomplete. See Leon v.
Berryhill, 880 F.3d 1041, 1047 (9th Cir. 2017) (“A district court cannot proceed directly to credit
a plaintiff’s testimony as true and then look to the record to determine whether any issues are
outstanding, as ‘this reverses the required order of analysis’”) (quoting Dominguez v. Colvin, 808
F.3d 403, 409 (9th Cir. 2015)). Here, the record clearly demonstrates that Maiden’s impairments
have continued to cause waxing and waning pain despite treatment, and that she continues to
have pain and skin outbreaks due to psoriatic arthritis. Although Maiden’s treating physician
believes she has significant functional limitations that prevent her from working, the record
contains scant evidence of objective testing to support or undermine the conclusions drawn by
Dr. Hoffman, or, for that matter, the state agency physicians. Further proceedings are therefore
required to fully develop the record. Because the extent of Maiden’s functional impairment is
ambiguous on this record, the ALJ should, on remand, order a consultative examination to
evaluate the severity of Maiden’s physical limitations. See McLeod v. Astrue, 640 F.3d 881, 885
(9th Cir. 2010) (ALJ’s duty to further develop the record is triggered where there is ambiguous
evidence or when the record is inadequate to allow for proper evaluation of the evidence)
(citations omitted). Subsequently, the ALJ should reapply the sequential evaluation process
based on the completed record.
///
///
///

11 - OPINION AND ORDER

CONCLUSION
The ALJ’s decision is not free of harmful legal error and is not supported by substantial
evidence. The Commissioner’s final decision is therefore REVERSED, and this case is
REMANDED for further proceedings consistent with this opinion.
IT IS SO ORDERED.

DATED this 27th

day of February 2018.

s/ Michael J. McShane _______________
Michael McShane
United States District Judge

12 - OPINION AND ORDER