Didomenico v. Commissioner Social Security Administration
Filing
23
Opinion and Order - The Commissioner's decision that Plaintiff is not disabled is REVERSED and REMANDED for further proceedings as set forth herein. Signed on 11/30/2016 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
FRANCES DIDOMENICO,
Plaintiff,
Case No. 3:15-cv-02393-SI
OPINION AND ORDER
v.
CAROLYN COLVIN,
Commissioner of Social Security,
Defendant.
Merrill Schneider, SCHNEIDER KERR LAW OFFICES, P.O. Box 14490, Portland, OR 97293. Of
Attorneys for Plaintiff.
Billy J. Williams, United States Attorney, and Janice E. Hebert, Assistant United States
Attorney, UNITED STATES ATTORNEY’S OFFICE, District of Oregon, 1000 Southwest Third
Avenue, Suite 600, Portland, OR 97204; Leisa A. Wolf, Special Assistant United States
Attorney, OFFICE OF THE GENERAL COUNSEL, SOCIAL SECURITY ADMINISTRATION, 701 Fifth
Avenue, Suite 2900 M/S 221A, Seattle, WA 98104. Of Attorneys for Defendant.
Michael H. Simon, District Judge.
Frances Didomenico (“Plaintiff”) seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying her application
for Disability Insurance Benefits (“DIB”). For the following reasons, the Commissioner’s
decision is REVERSED and REMANDED for further proceedings consistent with this opinion.
PAGE 1 – OPINION AND ORDER
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see
also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means
“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039
(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).
Where the evidence is susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s
interpretation is a rational reading of the record, and this Court may not substitute its judgment
for that of the Commissioner. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193,
1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may
not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495
F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th
Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the
Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554
F.3d at 1226.
BACKGROUND
A. Plaintiff’s Application
Plaintiff protectively filed an application for DIB on July 6, 2012. AR 166-72. Plaintiff
alleged an onset date of December 31, 1997. AR 166. Plaintiff’s date last insured was March 31,
2007. Plaintiff was born on December 16, 1955, and was 42 years old on the alleged onset date
PAGE 2 – OPINION AND ORDER
and 58 years old at the time of the hearing. AR 86. Plaintiff alleged a variety of health problems,
including blood clots, depression, problems with her left leg, irritable bowel syndrome, problems
with her throat and swallowing, interstitial cystitis, bipolar disorder, and headaches. AR 189.
Plaintiff’s application was denied initially and upon reconsideration, and she subsequently
requested a hearing before an Administrative Law Judge. AR 99-110. An administrative hearing
was held before ALJ Steve Lynch on May 20, 2014. AR 43. On June 10, 2014, ALJ Lynch
issued a written decision denying Plaintiff’s application. AR 18-33. The Appeals Council denied
Plaintiff’s subsequent request for review on October 26, 2015, making the ALJ’s decision final.
AR 1-6. This appeal followed.
B. The Sequential Analysis
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). “Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act.”
Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R.
§§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is
potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential
process asks the following series of questions:
1.
Is the claimant performing “substantial gainful activity?” 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing
such work, she is not disabled within the meaning of the Act. 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.
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2.
Is the claimant’s impairment “severe” under the Commissioner’s
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment or combination of impairments is “severe” if it significantly
limits the claimant’s physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death,
this impairment must have lasted or be expected to last for a continuous
period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the
claimant does not have a severe impairment, the analysis ends. 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe
impairment, the analysis proceeds to step three.
3.
Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis continues. At that point, the ALJ must
evaluate medical and other relevant evidence to assess and determine the
claimant’s “residual functional capacity” (“RFC”). This is an assessment
of work-related activities that the claimant may still perform on a regular
and continuing basis, despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),
416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis
proceeds to step four.
4.
Can the claimant perform his or her “past relevant work” with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform
his or her past relevant work, the analysis proceeds to step five.
5.
Considering the claimant’s RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is
not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),
404.1560(c), 416.960(c). If the claimant cannot perform such work, he or
she is disabled. Id.
See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953; see also
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The
Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
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numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966
(describing “work which exists in the national economy”). If the Commissioner fails to meet this
burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however,
the Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54;
Tackett, 180 F.3d at 1099.
C. The ALJ’s Decision
The ALJ applied the sequential process in his decision issued on June 10, 2014.
AR 18-33. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity
from the alleged onset date through the date last insured. AR 20. At step two, the ALJ found that
Plaintiff suffered from “history of electric shock, fractures of lower limbs, interstitial cystitis (IC)
and depression” Id. The ALJ considered that the record also contained evidence of “digestive
problems, gastroesophageal reflux disease, dysphagia, right shoulder pain, right hip pain,
osteoporosis and migraines.” Id. The ALJ, however, held:
These conditions, considered singly or in combination, have
caused only transient and mild symptoms and limitations, are well
controlled with treatment, did not persist for twelve continuous
months, do not have greater than a minimal limitation on the
claimant’s physical or mental ability to perform basic work
activities, or are otherwise not adequately supported by the medical
evidence of record.
AR 21-22. Accordingly, the ALJ ruled that these impairments did not rise to the level of a severe
medical impairment.
At step three, the ALJ found that Plaintiff did not have an impairment or combination of
impairments that met or equaled the requirements of a listed impairment. AR 22-23. The ALJ
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then determined that Plaintiff had the RFC to perform light work, with additional limitations.
Specifically, the ALJ concluded that Plaintiff
can stand and walk about four hours a day. She can use a cane for
ambulation. She must avoid unprotected heights and hazards. She
can no more than occasionally climb, stoop, crouch, kneel or
crawl. She is limited to simple, entry-level work. She can have no
more than occasional interaction with the public and coworkers.
AR 23.
In reaching his RFC conclusions, The ALJ considered the reports of several of Plaintiff’s
medical providers. The ALJ considered the opinions of Plaintiff’s primary care provider,
Dr. Sara Becker, Plaintiff’s treating neurologist, Dr. Gajanan Nilaver, and examining physician
Dr. Terrence Sedgewick. AR 26-28. The ALJ gave little weight to Plaintiff’s treating
psychologist Joyce Follingstad, PhD, RN, and Plaintiff’s treating psychiatrist Dr. James Farley.
The ALJ found Dr. Follingstad’s opinion was rendered years after Plaintiff’s date last insured
and Dr. Follingstad appeared to have forgotten some details of Plaintiff’s treatment. The ALJ
also found that Dr. Follingstad’s opinion was based in part on Plaintiff’s physical impairments,
which are outside Dr. Follingstad’s expertise. AR 29-30. The ALJ concluded that Dr. Farley’s
opinion was contradicted by Plaintiff’s work history and her “mostly conservative and routine
psychological treatment.” AR 30. The ALJ also gave little weight to the opinion of Plaintiff’s
current primary care provider, Dr. Suzanne Seetharaman. Dr. Seetharaman reviewed Plaintiff’s
charts from her colleague, Dr. Becker, who was Plaintiff’s primary care provider before the date
last insured. The ALJ gave little weight to Dr. Seetharaman’s opinion because she did not have
“contemporaneous treating knowledge” of Plaintiff’s condition before the date last insured.
AR 29. The ALJ gave some weight to the state agency consultants relating to Plaintiff’s physical
and psychological issues. AR 30.
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At step four, the ALJ determined that Plaintiff could not perform her past relevant work.
AR 31. At step five, the ALJ heard testimony from a vocation expert (“VE”), who testified that
an individual with like characteristics and impairments of the claimant could perform work
existing in significant numbers in the national economy, specifically as a small parts assembler,
or sorter. AR 32. Accordingly, the ALJ concluded Plaintiff failed to establish disability at any
time between the alleged onset date and the date last insured. AR 33.
DISCUSSION
A. Medical Evidence
Plaintiff argues that the ALJ improperly discredited the opinions of Drs. Follingstad, Farley,
and Seetharaman. The Commissioner responds that the ALJ properly weighed the medical
evidence in light of contradictory evidence.
The ALJ is responsible for resolving conflicts in the medical record, including conflicts
among physicians’ opinions. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th
Cir. 2008). The Ninth Circuit distinguishes between the opinions of three types of physicians:
treating physicians, examining physicians, and non-examining physicians. Generally, “a treating
physician’s opinion carries more weight than an examining physician’s, and an examining
physician’s opinion carries more weight than a reviewing physician’s.” Holohan v.
Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). If a treating physician’s opinion is supported by
medically acceptable techniques and is not inconsistent with other substantial evidence in the
record, the treating physician’s opinion is given controlling weight. Id.; see also 20 C.F.R.
§ 404.1527(d)(2). A treating doctor’s opinion that is not contradicted by the opinion of another
physician can be rejected only for “clear and convincing” reasons. Ryan v. Comm’r of Soc.
Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). If a treating doctor’s opinion is contradicted by the
PAGE 7 – OPINION AND ORDER
opinion of another physician, the ALJ must provide “specific and legitimate reasons” for
discrediting the treating doctor’s opinion. Id.
In addition, the ALJ generally must accord greater weight to the opinion of an examining
physician than that of a non-examining physician. Orn, 495 F.3d at 631. As is the case with the
opinion of a treating physician, the ALJ must provide “clear and convincing” reasons for
rejecting the uncontradicted opinion of an examining physician. Pitzer v. Sullivan, 908 F.2d 502,
506 (9th Cir. 1990). If the opinion of an examining physician is contradicted by another
physician’s opinion, the ALJ must provide “specific and legitimate reasons” for discrediting the
examining physician’s opinion. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). An ALJ
may reject an examining, non-treating physician’s opinion “in favor of a nonexamining,
nontreating physician when he gives specific, legitimate reasons for doing so, and those reasons
are supported by substantial record evidence.” Roberts v. Shalala, 66 F.3d 179, 184 (9th
Cir. 1995), as amended (Oct. 23, 1995).
Specific, legitimate reasons for rejecting a physician’s opinion may include its reliance
on a claimant’s discredited subjective complaints, inconsistency with medical records,
inconsistency with a claimant’s testimony, and inconsistency with a claimant’s daily activities.
Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008); Andrews, 53 F.3d at 1042-43. An
ALJ effectively rejects an opinion when he or she ignores it. Smolen v. Chater, 80 F.3d 1273,
1286 (9th Cir. 1996).
1.
Dr. Follingstad’s Opinion
The ALJ gave little weight to the opinion of Dr. Follingstad, a register nurse (“RN”) who
also holds a Ph.D., because her opinion was rendered several years after Plaintiff’s date last
insured. The ALJ also noted that Dr. Follingstad incorrectly recalled an incident from Plaintiff’s
treatment history, which the ALJ suggested called into question Dr. Follingstad’s ability to opine
PAGE 8 – OPINION AND ORDER
on the relevant time period. Finally, the ALJ noted that Dr. Follingstad’s opinion included
elements of Plaintiff’s physical impairments, which the ALJ found to be outside Dr.
Follingstad’s area of expertise. The ALJ gave more weight to the state agency psychological
consultants, who found no severe medically determinable psychological impairments. AR 92.
The ALJ also pointed out that in the months following Plaintiff’s March 2005 suicide attempt,
she reported doing better psychologically and denied suicidal ideation. AR 2007. Plaintiff also
reported she was psychologically “doing ok” to Dr. Becker, her primary care provider, during a
brief office visit in February 2007. AR 327.
The ALJ explained that Dr. Follingstad’s opinion from April 28, 2014 is too far removed
from Plaintiff’s March 31, 2007 date last insured. “[M]edical evaluations made after the
expiration of a claimant’s insured status are relevant to an evaluation of the preexpiration
condition.” Lester, 81 F.3d at 832 (quoting Smith v. Bowen, 859 F.2d 1222, 1225 (9th Cir.
1988)). The Ninth Circuit has found it improper to reject medical testimony coming nearly two
years after the date last insured where that testimony encompassed the time in question and
where when the “insured coverage was in effect, [the doctor] examined [plaintiff] twice;
supervised . . . the licensed nurse practitioner who treated [plaintiff]; and approved [the nurse
practitioner’s] prescription of [plaintiff’s] medications.” Taylor v. Comm’r of Soc. Sec. Admin.,
659 F.3d 1228, 1232 (9th Cir. 2011). Here, Dr. Follingstad’s involvement in Plaintiff’s care goes
well beyond that found in Taylor. Dr. Follingstad began treating Plaintiff in 1992 and she saw
Plaintiff between 2-23 times per year. AR 1852.1 The ALJ may not discredit Dr. Follingstad’s
testimony simply because it was issued after Plaintiff’s date last insured.
1
There was a three-year gap from 2001 to 2003 where Plaintiff did not see Dr.
Follingstad. Notwithstanding this gap, Dr. Follingstad’s treatment of Plaintiff remains extensive.
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The ALJ also suggested that Dr. Follingstad’s testimony was not credible because she
incorrectly recalled some details of Plaintiff’s treatment, namely stating that Plaintiff had been
hospitalized for several days following her suicide attempt when she had in fact been sent home
the same day. Compare AR 1853 with 1953. Although the ALJ correctly noted the inconsistency,
it is not proper to discount a treating psychologist of more than 20 years for such a minor
inconsistency in recalling Plaintiff’s history. Cf. Haulot v. Astrue, 290 F. App’x. 53 (9th Cir.
2008) (finding that in the context of evaluating Plaintiff’s credibility “[a]ny minor discrepancies
in [plaintiff’s] testimony were not enough to establish clear and convincing evidence that he is
incredible”). Dr. Follingstad recalled Plaintiff’s hospitalization and follow up counseling; she
merely inaccurately described the length of Plaintiff’s hospitalization.
The ALJ also determined that much of Dr. Follingstad’s testimony related to Plaintiff’s
physical impairments, which the ALJ believed fell outside of Dr. Follingstad’s area of expertise.
Although Dr. Follingstad does opine on Plaintiff’s physical impairments in a section of her
opinion labelled “symptomology,” the majority of her opinion relates to Plaintiff’s psychological
impairments. AR 1852. It was error for the ALJ to reject Dr. Follingstad’s opinions relating to
Plaintiff’s psychological condition.
The ALJ also did not explain how Dr. Follingstad’s experience and education as an RN
did not render her an “other medical source,” whose opinions on Plaintiff’s physical condition
may be used in determining the “severity of [the individual’s] impairment(s) and how it affects
[the individual’s] ability to work.” 20 C.F.R. § 404.1513(d).
2. Dr. Farley’s Opinion
The ALJ gave little credit to the opinion of Dr. Farley because it was inconsistent with
Plaintiff’s work history and her treatment history. AR 30. The ALJ noted that Plaintiff’s work
history included “nearly substantial gainful activity” in 1998. Id.
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In 1998, Plaintiff did reception work for one of her doctors who knew that she was in
need of work. AR 51. The ALJ noted that this work was nearly substantial gainful activity.
Plaintiff, however, indicated that she was ultimately released from her position due to problems
with her depression. Id. It is difficult to see how Plaintiff losing her only job that approached
substantial gainful activity due to her depression is inconsistent with Dr. Farley’s opinion that
Plaintiff would struggle in the workplace with “going negative.” AR 1850. Furthermore,
Plaintiff’s one year of “nearly” substantial work in the ten-year period of alleged disability does
not provide a legitimate reason to discount Dr. Farley’s opinion. See Lester, 81 F.3d at 833
(“Occasional symptom-free periods—and even the sporadic ability to work—are not inconsistent
with disability.”).
The ALJ also found that Dr. Farley’s evaluation was inconsistent with Plaintiff’s
treatment history. The ALJ found that Plaintiff’s psychological treatment history was “mostly
conservative and routine.” AR 30. Dr. Farley prescribed Plaintiff with “medication and
supportive psychotherapy.” AR 1848. Without providing what more aggressive treatment options
the ALJ would expect Dr. Farley to have prescribed, a general criticism that treatment was
conservative and routine is not a specific and legitimate reason to discount Dr. Farley’s opinion.
Cf. Lapeirre-Gutt v. Astrue, 382 F. App’x. 662, 664 (9th Cir. 2010) (finding in the context of
plaintiff’s credibility that “[a] claimant cannot be discredited for failing to pursue nonconservative treatment options where none exist”). The ALJ noted earlier in his decision that
Plaintiff “was never psychiatrically hospitalized during the relevant period.” AR 28. The ALJ
appears to believe that the conditions described by Dr. Farley would have been supported had
Plaintiff been hospitalized. Under the circumstances of Plaintiff’s mental health condition,
however, her lack of hospitalization during the relevant time period is not a specific and
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legitimate reason to discredit the testimony of a treating doctor. See Barker v. Colvin, No. 4:15CV-00257-CWD, 2016 WL 5746356, at *12 (D. Idaho Sept. 29, 2016) (“The lack of emergency
room treatment or hospitalization is not a specific and legitimate reason to discredit Petitioner’s
testimony.”).
3. Dr. Seetharaman’s Opinion
The ALJ gave little weight to Dr. Seetharaman’s opinion because she did not have any
contemporaneous knowledge of Plaintiff’s condition prior to 2011. AR 29. Dr. Seetharaman,
Plaintiff’s primary care provider beginning in 2011, completed a questionnaire addressed to
Dr. Becker. Dr. Becker was Plaintiff’s previous primary care provider and a colleague of
Dr. Seetharaman. Dr. Becker could not complete the questionnaire because he was on vacation.
AR 241, 2023.
A lack of contemporaneous knowledge, without contradictory evidence, is not a specific
and legitimate reason to reject a reviewing physician’s testimony. See Holohan, 246 F.3d at 1207
(9th Cir. 2001). In Holohan, the Ninth Circuit found that a lack of firsthand knowledge was not
sufficient to discredit the testimony of the plaintiff’s current primary care provider. In that case,
the ALJ determined that other examining and reviewing physicians contradicted the primary care
provider’s opinion and gave more weight to those opinions. The Ninth Circuit found that
these opinions—of an examining physician who examined
Holohan only once and a reviewing physician who merely checked
boxes without giving supporting explanations—are insufficient to
outweigh the opinion of a treating physician who cared for
Holohan over a period of time and who provided an opinion
supported by explanation and treatment records.
Id.
Here, the ALJ’s only stated reason for giving little weight to Dr. Seetharaman’s opinion
was that she lacked contemporaneous knowledge of Plaintiff’s condition before 2011. Although
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the state agency consultants contradict Dr. Seetharaman’s opinion, the ALJ may not credit the
state agency consultants over Dr. Seetharaman without providing a specific and legitimate
reason. Dr. Seetharaman’s lack of contemporaneous knowledge, by itself, is not a specific and
legitimate reason.
B. Severe Impairments
Plaintiff argues that the ALJ improperly rejected a conclusion of severe impairments at
step two of the analysis. The Ninth Circuit has explained:
An impairment or combination of impairments may be found “not
severe only if the evidence establishes a slight abnormality that has
no more than a minimal effect on an individual’s ability to work.”
Smolen, 80 F.3d at 1290 (internal quotation marks omitted)
(emphasis added); see Yuckert v. Bowen, 841 F.2d 303, 306 (9th
Cir.1988). The Commissioner has stated that “[i]f an adjudicator is
unable to determine clearly the effect of an impairment or
combination of impairments on the individual’s ability to do basic
work activities, the sequential evaluation should not end with the
not severe evaluation step.” S.S.R. No. 85–28 (1985). Step two,
then, is “a de minimis screening device [used] to dispose of
groundless claims,” Smolen, 80 F.3d at 1290, and an ALJ may find
that a claimant lacks a medically severe impairment or
combination of impairments only when his conclusion is “clearly
established by medical evidence.” S.S.R. 85–28.
Webb v. Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005).
Although this step is intended as a “de minimis screening,” an ALJ’s determination that a
medical impairment is not severe will be upheld if supported by substantial evidence. Glasgow v.
Astrue, 360 F. App’x. 836, 837 (9th Cir. 2009). Plaintiff claims that the ALJ did not properly
consider her bipolar disorder, post-traumatic stress disorder (“PTSD”), bleeding disorder,
pulmonary embolus, irritable bowel syndrome (IBS), gastroesophageal reflux disease (“GERD”),
hip pain, arthritis, headaches, and osteoporosis. Although there is evidence in the record
diagnosing Plaintiff with these impairments, “[a] diagnosis . . . alone cannot satisfy the step two
inquiry. [Plaintiff] must show also show [sic] her medically discernable impairments are severe.”
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Peterson v. Barnhart, 213 F. App’x 600, 604 (9th Cir. 2006). The ALJ did specifically consider
Plaintiff’s digestive problems, osteoporosis, hip pain, and headaches. AR 20-21. The ALJ
concluded that these conditions “do not have greater than a minimal limitation on the claimant’s
physical or mental ability to perform basic work activities.” AR 21.
1. Digestive Issues
The ALJ considered Plaintiff’s digestive issues, including GERD and IBS, and found that
Plaintiff’s symptoms were very well controlled with Prilosec and that the objective evidence in
the record did not indicate any severe impairments. AR 21, 436. Although there was some
concern about Plaintiff’s abdominal bloating, diarrhea, and constipation, a later colonoscopy did
not reveal anything beyond a “[s]omewhat tender abdomen” that the doctor believed was likely
“musculoskeletal pain more than anything else.” AR 1731. Furthermore, as the ALJ noted,
Plaintiff apparently responded quite well to treatment. AR 435; see also Taylor v. Astrue, 386 F.
App’x 629, 631-32 (9th Cir. 2010) (upholding an ALJ finding that plaintiff’s mental impairments
were not severe because they responded well to treatment). Although Plaintiff was diagnosed
with a variety of digestive issues, there is substantial evidence in the record supporting the ALJ’s
conclusion that these diagnoses did not reveal any severe medically discernable impairment.
2. Osteoprosis
The ALJ acknowledged that Plaintiff was diagnosed with osteoporosis but found that
Plaintiff’s bone density was generally normal and responded well to treatment. AR 21. In 2004
Plaintiff had “[n]ormal bone density values” and Plaintiff’s treating doctor noted that Plaintiff
was responding to estrogen treatment, no longer needed a vitamin D prescription, and “will not
need another bone density for at least 5-10 years.” AR 387, 438. Substantial evidence in the
record supports the ALJ’s conclusion that Plaintiff’s osteoporosis was not a severe medical
impairment.
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3. Hip Pain
Although the ALJ also mentioned Plaintiff’s hip pain, the ALJ did not provide clear
reasons for why this this condition was not a severe impairment. The ALJ noted that Plaintiff had
been diagnosed with a bursitis of the right hip, had a “suspected trochanteric bursitis” and that
Plaintiff had an injection in 2007. AR 21, 314, 334. Additionally, Dr. Seetharaman specifically
noted Plaintiff’s hip problem as the reason Plaintiff would need to be allowed to change
positions at her job. AR 2024. Although the ALJ noted that an x-ray of Plaintiff’s hip was within
normal limits, that single piece of contradictory evidence is not sufficient to prevent Plaintiff’s
hip pain from passing the step two de minimis screening.
The ALJ stated that he considered Plaintiff’s nonsevere conditions as part of his
“assessment of the claimant’s residual functional capacity.” AR 22. The ALJ specifically noted
Plaintiff’s hip injections and physical therapy in determining Plaintiff’s RFC, which could
suggest that the ALJ’s oversight at step two was merely harmless error. See Lee v. Astrue, 472 F.
App’x 553, 555 (9th Cir. 2012) (“Where an ALJ fails to consider a disorder at Step Two, but
nonetheless accounts for that disorder at Step Four in the residual functioning capacity analysis,
any alleged error in failing to find the disorder ‘severe’ at Step Two is harmless.”). Given that
the ALJ, however, erred when he did not properly weigh Dr. Seetharaman’s opinion in
determining Plaintiff’s RFC, which included specific testimony about Plaintiff’s hip pain, the
Court cannot conclude that the ALJ’s step two determination was harmless error.
4. Headaches
The ALJ considered Plaintiff’s headaches and noted that although Plaintiff has endorsed
cluster headaches, Plaintiff’s CT scan was normal and Plaintiff appears to suffer from severe
migraines only about twice a year. AR 21, 344, 365, 371. Given the infrequency of Plaintiff’s
headaches, the ALJ could properly conclude that there was no more than a minimal effect on
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Plaintiff’s ability to work. See Alba v. Colvin, No. 3:13–cv–05338–KLS, 2014 WL 1805553, at
*3 (W.D. Wash. May 7, 2014) (affirming ALJ conclusion that migraines were not severe where
they occurred “one to two times per year”).
5. Arthritis
The ALJ did not provide any reason for not finding Plaintiff’s arthritis to be severe. The
ALJ briefly noted Plaintiff’s history of arthritis in determining Plaintiff’s RFC. AR 26. The ALJ
only pointed to one finding of arthritis and does not appear to have considered the numerous
times Plaintiff’s arthritis appears in the record. AR 331, 336, 343, 1869. The ALJ did not give an
explanation for why Plaintiff’s arthritis was not severe, and with little more than a passing
mention in subsequent analysis, it was not harmless error for the ALJ not to determine whether
Plaintiff’s arthritis was severe. See Black v. Astrue, 472 F. App’x 491, 493 (9th Cir. 2012)
(finding that where an ALJ did not provide reasons for disregarding a diagnosis at step two “[w]e
cannot determine whether the error was harmless because the ALJ did not provide a statement of
reasons for rejecting evidence relevant to [plaintiff’s] residual functional capacity, and therefore
we do not know whether the ALJ’s omission was inconsequential to the ultimate nondisability
determination” (quotation and citation omitted)).
6. Bleeding Disorder
Similarly, the ALJ made no findings regarding Plaintiff’s bleeding disorder. AR 247,
362. In the absence of any reason not to find Plaintiff’s bleeding disorder severe and without
considering it at a later step, the ALJ erred at step two by not considering whether Plaintiff’s
bleeding disorder is a severe impairment.
7. Mental Health Issues
Plaintiff has also been diagnosed with bipolar disorder, PTSD and anxiety. AR 331,
1485, 1847, 1852. The ALJ did not find any of these conditions to be severe and did not provide
PAGE 16 – OPINION AND ORDER
a reason at step two for not considering Plaintiff’s mental health issues to be severe. In
considering Plaintiff’s RFC, the ALJ did note that “[t]he medical evidence record reflects the
claimant diagnosed with major depressive disorder and bipolar disorder. Regardless of the
claimant’s exact psychiatric diagnosis, all of her mental health symptoms have been fully
considered in this decision.” AR 28 (citation omitted). Although it is unclear from the record
whether the ALJ included Plaintiff’s PTSD and anxiety as part of that consideration, because the
ALJ did not properly consider the opinions of Drs. Follingstad and Farley, who opined on
Plaintiff’s mental health issues, the Court does not find that the ALJ’s consideration at a later
step created harmless error at step two.
8. Pulmonary Embolism
Plaintiff was diagnosed with pulmonary embolism following leg surgery. AR 523, 557.
The ALJ did not find Plaintiff’s pulmonary embolism to be a severe impairment at step two and
did not provide any reasoning for that finding. The ALJ, however, did include Plaintiff’s
pulmonary embolism in determining Plaintiff’s RFC. AR 26. The ALJ recounted Plaintiff’s
history with pulmonary embolism and ultimately concluded that Plaintiff’s pulmonary embolism
responded quite well to treatment and that an examining pulmonologist believed Plaintiff’s
breathlessness could be attributed to unfitness. AR 26, 275, 354. Plaintiff was taken off her
treating medication approximately six months after surgery. AR 353. Although it appears that
Plaintiff was put back on that medication after another surgery and pulmonary embolism, that
surgery occurred in 2009, two years after the date last insured. AR 730-31. The ALJ fully
considered Plaintiff’s pulmonary embolism in determining Plaintiff’s RFC and any error in not
finding Plaintiff’s pulmonary embolism severe at step two was harmless.
PAGE 17 – OPINION AND ORDER
C. Plaintiff’s Credibility
Plaintiff also challenges the ALJ’s reasons for discounting Plaintiff’s testimony regarding
the severity and limiting effects of her symptoms. The ALJ discounted Plaintiff’s claimed
limitations because they were: (1) inconsistent with her activities of daily living; (2) inconsistent
with her work history; and (3) unsupported by the objective medical evidence.
There is a two-step process for evaluating a claimant’s testimony about the severity and
limiting effect of the claimant’s symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009).
“First, the ALJ must determine whether the claimant has presented objective medical evidence of
an underlying impairment ‘which could reasonably be expected to produce the pain or other
symptoms alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting
Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When doing so, “the claimant
need not show that her impairment could reasonably be expected to cause the severity of the
symptom she has alleged; she need only show that it could reasonably have caused some degree
of the symptom.” Smolen, 80 F.3d at 1282.
“Second, if the claimant meets this first test, and there is no evidence of malingering, ‘the
ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering
specific, clear and convincing reasons for doing so.’” Lingenfelter, 504 F.3d at 1036 (quoting
Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must
state which pain testimony is not credible and what evidence suggests the complaints are not
credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be
“sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant’s testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing
Bunnell, 947 F.2d at 345-46).
PAGE 18 – OPINION AND ORDER
Effective March 16, 2016, the Commissioner superseded Social Security Rule
(“SSR”) 96-7p governing the assessment of a claimant’s “credibility” and replaced it with a new
rule, SSR 16-3p. See SSR 16-3p, available at 2016 WL 1119029. SSR 16-3p eliminates the
reference to “credibility,” clarifies that “subjective symptom evaluation is not an examination of
an individual’s character,” and requires the ALJ to consider of all of the evidence in an
individual’s record when evaluating the intensity and persistence of symptoms. Id. at *1-2. The
Commissioner recommends that the ALJ examine “the entire case record, including the objective
medical evidence; an individual’s statements about the intensity, persistence, and limiting effects
of symptoms; statements and other information provided by medical sources and other persons;
and any other relevant evidence in the individual’s case record.” Id. at *4. The Commissioner
recommends assessing: (1) the claimant’s statements made to the Commissioner, medical
providers, and others regarding the claimant’s location, frequency and duration of symptoms, the
impact of the symptoms on daily living activities, factors that precipitate and aggravate
symptoms, medications and treatments used, and other methods used to alleviate symptoms;
(2) medical source opinions, statements, and medical reports regarding the claimant’s history,
treatment, responses to treatment, prior work record, efforts to work, daily activities, and other
information concerning the intensity, persistence, and limiting effects of an individual’s
symptoms; and (3) non-medical source statements, considering how consistent those statements
are with the claimant’s statements about his or her symptoms and other evidence in the file. See
id. at *6-7.
The ALJ’s credibility decision may be upheld overall even if not all of the ALJ’s reasons
for rejecting the claimant’s testimony are upheld. See Batson, 359 F.3d at 1197. The ALJ may
not, however, make a negative credibility finding “solely because” the claimant’s symptom
PAGE 19 – OPINION AND ORDER
testimony “is not substantiated affirmatively by objective medical evidence.” Robbins, 466 F.3d
at 883.
1. Activities of Daily Living
The ALJ determined that Plaintiff’s credibility was impaired by her activities of daily
living. AR 22, 28. Daily activities may be used to discredit a claimant where they either “are
transferable to a work setting” or “contradict claims of a totally debilitating impairment.” Molina
v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012). The ALJ noted that
[t]he claimant appears to manage her self-care independently. She
prepares simple meals like salads, pastas and crockpot meals. She
does laundry, dusts, irons, washes dishes, sweeps floors, rides the
lawn mower and trims her roses. She shops for groceries once a
month in stores. She also does some sewing and bird watching.
AR 22. The ALJ also noted that Plaintiff travelled to Europe in 2010, “suggesting robust activity
levels inconsistent with a continuing disability.” AR 28. The ALJ erred in finding light
household chores and a single trip abroad taken several years after the relevant time period as
evidence that contradicts Plaintiff’s alleged impairments or demonstrates an ability to sustain
activity in a work environment. Hostrawser v. Astrue, 364 F. App’x 373, 378 (9th Cir. 2010)
(“The fact that [plaintiff] could perform the listed normal activities of daily living and
occasionally travel does not equate to being able to undertake the physical functions that would
be required on a sustained basis in a work setting matching [plaintiff’s] skills and background.”).
Further, the ALJ did not consider that Plaintiff was hospitalized for a transient ischemic attack2
while in Europe after an apparently traumatic episode. AR 676.
2
A transient ischemic attack is a transient stroke that lasts only a few minutes. See
http://www.ninds.nih.gov/disorders/tia/tia.htm
PAGE 20 – OPINION AND ORDER
2. Work History
The ALJ also considered Plaintiff’s work history and determined that it “undermines her
assertion of total disability.” AR 31. In reaching this conclusion, the ALJ considered both
Plaintiff’s inconsistent work history before her alleged disability onset, as well as the work
activity she had after her alleged onset. The ALJ noted that Plaintiff “worked only sporadically”
before the alleged onset date and felt that this could indicate that alternative explanations existed
for Plaintiff’s unemployment. Id. A poor work history can be considered as part of evaluating a
plaintiff’s testimony. See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (finding that an
extremely poor work history, combined with inconsistent activities of daily living and inadequate
effort during physical evaluations were sufficiently specific reasons to discredit plaintiff). The
mere fact that Plaintiff had a poor work history, however, is not a clear and convincing reason to
discount her testimony.
Plaintiff’s work history after the alleged onset date was also not a clear and convincing
reason to discredit Plaintiff. The ALJ believed that Plaintiff’s work after the alleged onset date,
which the ALJ found was not at the level of substantial gainful activity, nevertheless indicated
that Plaintiff “maintained some ability to work.” AR 31. Plaintiff is not required to show that she
is incapable of doing any work but only that she has an “inability to engage in any substantial
gainful activity.” 42 U.S.C. § 423(d)(1)(A). “[D]isability claimants should not be penalized for
attempting to lead normal lives in the face of their limitations.” Reddick v. Chater, 157 F.3d 715,
722 (9th Cir. 1998). Although Plaintiff did have limited periods of employment after her alleged
onset date, that activity does not provide a basis to reject Plaintiff’s symptom testimony.
3. Unsupported by the Medical Evidence
The ALJ concluded that the medical record did not support the severity of Plaintiff’s
physical and mental impairments. AR 31. Regarding Plaintiff’s mental health, the ALJ again
PAGE 21 – OPINION AND ORDER
noted Plaintiff’s “routine and conservative care” and lack of psychiatric hospitalizations. Id. The
Court has already discussed above why these considerations were improper, and concludes again
that Plaintiff’s treatment plan, in the absence of an available non-conservative treatment plan,
should not be used to discount Plaintiff’s testimony.
The ALJ also found Plaintiff’s alleged limitations to be counter to the examining
neurologist’s findings regarding any remaining impairments related to Plaintiff’s electrocution as
well as Plaintiff’s successful recovery from her leg fracture and examination results that
indicated full strength and intact sensation. The ALJ, however, did not properly consider the
opinion of Dr. Seetharaman who opined on various aspects of Plaintiff’s physical impairments,
including limitations on her strength. Because the ALJ did not properly consider
Dr. Seetharaman’s opinion the Court does not find that the ALJ provided a clear and convincing
reason to reject Plaintiff’s subjective testimony
Further, although an ALJ should consider the objective medical evidence in evaluating a
plaintiff’s alleged symptoms and limitations, an ALJ may not discount a plaintiff’s testimony
solely because it is not supported by the objective medical evidence. See Light v. Soc. Sec.
Admin., 119 F.3d 789, 792 (9th Cir. 1997), as amended on reh’g (Sept. 17, 1997) (“[A] finding
that the claimant lacks credibility cannot be premised wholly on a lack of medical support for the
severity of his pain.”); see also SSR No. 96–7p (“[A]llegations concerning the intensity and
persistence of pain or other symptoms may not be disregarded solely because they are not
substantiated by objective medical evidence.”). Because the Court has found the other reasons
provided by the ALJ not to be clear and convincing reasons to discount Plaintiff’s testimony,
even if Plaintiff’s alleged symptoms and limitations are unsupported by the objective medical
evidence, that alone does not suffice as a clear and convincing reason to discount her testimony.
PAGE 22 – OPINION AND ORDER
D. Remand
Within the Court’s discretion under 42 U.S.C. § 405(g) is the “decision whether to
remand for further proceedings or for an award of benefits.” Holohan, 246 F.3d at 1210 (citation
omitted). Although a court should generally remand to the agency for additional investigation or
explanation, a court has discretion to remand for immediate payment of benefits. Treichler v.
Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099-1100 (9th Cir. 2014). The issue turns on the
utility of further proceedings. A remand for an award of benefits is appropriate when no useful
purpose would be served by further administrative proceedings or when the record has been fully
developed and the evidence is insufficient to support the Commissioner’s decision. Id. at 1100. A
court may not award benefits punitively and must conduct a “credit-as-true” analysis on evidence
that has been improperly rejected by the ALJ to determine if a claimant is disabled under the Act.
Strauss v. Comm’r of the Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
In the Ninth Circuit, the “credit-as-true” doctrine is “settled” and binding on this Court.
Garrison v. Colvin, 759 F.3d 995, 999 (9th Cir. 2014). The United States Court of Appeals for
the Ninth Circuit articulates the rule as follows:
The district court must first determine that the ALJ made a legal
error, such as failing to provide legally sufficient reasons for
rejecting evidence. If the court finds such an error, it must next
review the record as a whole and determine whether it is fully
developed, is free from conflicts and ambiguities, and all essential
factual matters have been resolved. In conducting this review, the
district court must consider whether there are inconsistencies
between the claimant’s testimony and the medical evidence in the
record, or whether the government has pointed to evidence in the
record that the ALJ overlooked and explained how that evidence
casts into serious doubt the claimant’s claim to be disabled. Unless
the district court concludes that further administrative proceedings
would serve no useful purpose, it may not remand with a direction
to provide benefits.
If the district court does determine that the record has been fully
developed and there are no outstanding issues left to be resolved,
PAGE 23 – OPINION AND ORDER
the district court must next consider whether the ALJ would be
required to find the claimant disabled on remand if the improperly
discredited evidence were credited as true. Said otherwise, the
district court must consider the testimony or opinion that the ALJ
improperly rejected, in the context of the otherwise undisputed
record, and determine whether the ALJ would necessarily have to
conclude that the claimant were disabled if that testimony or
opinion were deemed true. If so, the district court may exercise its
discretion to remand the case for an award of benefits. A district
court is generally not required to exercise such discretion,
however. District courts retain flexibility in determining the
appropriate remedy and a reviewing court is not required to credit
claimants’ allegations regarding the extent of their impairments as
true merely because the ALJ made a legal error in discrediting
their testimony.
Dominguez v. Colvin, 808 F.3d 403, 407-08 (9th Cir. 2015) (internal citations and quotation
marks omitted).
As discussed in this Opinion and Order, the ALJ erred by failing to provide legally
sufficient reasons, supported by substantial evidence, for disregarding the opinions of
Drs. Follingstad, Farley, and Seetharaman, and for discounting Plaintiff’s testimony. The ALJ
did note, however, and the record does support, that there are conflicting opinions regarding
Plaintiff’s physical and mental health. Although Drs. Follingstad, Farley, and Seetharaman all
endorsed Plaintiff’s mental health impairments, state agency psychological consultants found
Plaintiff’s affective disorders to be non-severe. AR 92. Further, while Dr. Seetharaman opined
on various physical limitations Plaintiff faced because of her impairments, state agency
consultants did not find similar limitations. For example, Dr. Seetharaman opined that Plaintiff
could stand and walk for two hours in an eight-hour workday and sit for 3 hours. AR 2024. State
agency consultants, however, found that Plaintiff could stand and walk for six hours in an eighthour workday and sit for six hours. AR 94. Although the ALJ did not properly consider all of
Plaintiff’s potentially severe impairments, the record remains ambiguous about the severity of
those impairments and the limitations that may arise from them. The Court notes, for instance,
PAGE 24 – OPINION AND ORDER
that while Plaintiff was diagnosed with a bleeding disorder, a 2010 examining physician found it
“interesting[]” that plaintiff did not have any major bleeding complications while on
anticoagulants. AR 653.
In light of these ambiguities, further proceedings are required to resolve this case. Upon
remand, the ALJ shall appropriately consider the testimony of Drs. Follingstad, Farley, and
Seetharaman, reevaluate Plaintiff’s severe impairments and credibility, and formulate a new
RFC. Accordingly, this matter is remanded for further proceedings.
CONCLUSION
The Commissioner’s decision that Plaintiff is not disabled is REVERSED and
REMANDED for further proceedings as set forth herein.
IT IS SO ORDERED.
DATED this 30th day of November, 2016.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 25 – OPINION AND ORDER
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