Nove v. Commissioner Social Security Administration
Filing
16
OPINION & ORDER. The decision of the Commissioner is reversed and remanded for further administrative proceedings. Signed on 7/28/2019 by Judge Marco A. Hernandez. (jp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
GAIL A. N.,1
No. 3:18-cv-00512-HZ
Plaintiff,
OPINION & ORDER
v.
COMMISSIONER, Social Security
Administration,
Defendant.
HERNÁNDEZ, District Judge:
Plaintiff brings this action for judicial review of the Commissioner’s final decision
denying her application for Disability Insurance Benefits (“DIB”) under Title II of the Social
Security Act. The Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C.
§ 1382(c)(3)). Because the Administrative Law Judge (ALJ) erred by improperly discounting
1
In the interest of privacy, this opinion uses only the first name and the initial of the last name of
the non-governmental party or parties in this case. Where applicable, this opinion uses the same
designation for non-governmental party’s immediate family members.
1 - OPINION & ORDER
Plaintiff’s subjective symptom testimony, lay witness testimony, and medical opinion evidence,
the Court REVERSES the Commissioner’s decision and REMANDS this case for further
administrative proceedings.
BACKGROUND
Plaintiff was born on September 9, 1974 and was thirty-nine years old on June 21, 2014,
the alleged disability onset date. Tr. 88.2 Plaintiff met the insured status requirements of the
Social Security Act (“SSA” or “Act”) through December 31, 2019. Tr. 80. Plaintiff has at least a
high school education and is unable to perform any past relevant work. Tr. 88. Plaintiff claims
she is disabled based on conditions including fibromyalgia, depression, anxiety, and migraines.
Tr. 241.
Plaintiff’s benefits application was denied initially on December 26, 2014, and upon
reconsideration on March 2, 2015. Tr. 79. A hearing was held before Administrative Law Judge
Rebecca Jones on August 11, 2016. Tr. 96–136. ALJ Jones issued a written decision on February
28, 2017, finding that Plaintiff was not disabled and therefore not entitled to benefits. Tr. 79–90.
The Appeals Council declined review, rendering ALJ Jones’s decision the Commissioner’s final
decision. Tr. 1–6.
SEQUENTIAL DISABILITY ANALYSIS
A claimant is disabled if 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). Disability claims are evaluated according to a five-step procedure. Valentine v.
Comm’r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate
burden of proving disability. Id.
2
Citations to “Tr.” refer to the administrative trial record filed here as ECF No. 11.
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At step one, the Commissioner determines whether a claimant is engaged in “substantial
gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987);
20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the Commissioner determines whether the
claimant has a “medically severe impairment or combination of impairments.” Yuckert, 482 U.S.
at 140–41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled.
At step three, the Commissioner determines whether claimant’s impairments, singly or in
combination, meet or equal “one of a number of listed impairments that the [Commissioner]
acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141;
20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if
not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the Commissioner determines whether the claimant, despite any
impairment(s), has the residual functional capacity (“RFC”) to perform “past relevant work.” 20
C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the
claimant cannot perform past relevant work, the burden shifts to the Commissioner. At step five,
the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at
141–42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets its burden
and proves that the claimant is able to perform other work which exists in the national economy,
the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ’S DECISION
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity
since the alleged disability onset date. Tr. 80.
At step two, the ALJ determined that Plaintiff had “the following severe impairments:
fibromyalgia and migraine headaches.” Tr. 80. The ALJ determined that Plaintiff’s thyroid
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disorder, degenerative disc disease of the thoracic spine, depressive disorder, and anxiety
disorder were not severe. Tr. 80-81.
At step three, the ALJ determined that Plaintiff did not have any impairment or
combination of impairments that met or medically equaled the severity of one of the listed
impairments. Tr. 82.
Before proceeding to step four, the ALJ found that Plaintiff had the residual functional
capacity (RFC) to perform light work. The ALJ further specified that “[s]he could perform work
that does not require climbing ladders, ropes or scaffolds. She [could] perform work that does
not require exposure to unprotected heights or hazardous machinery. She [could] perform simple
routine tasks defined as no greater than reasoning level 2.” Tr. 82.
At step four, the ALJ determined that Plaintiff was unable to perform any past relevant
work. Tr. 88.
At step five, the ALJ relied on the testimony of a vocational expert to find that there were
jobs that existed in significant numbers in the national economy that Plaintiff could have
performed. Tr. 89. Accordingly, the ALJ concluded that the Plaintiff was not disabled. Tr. 90.
STANDARD OF REVIEW
A court may set aside the Commissioner’s denial of benefits only when the
Commissioner’s findings are based on legal error or are not supported by substantial evidence in
the record as a whole. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “Substantial
evidence means 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.” Id. (internal
quotation marks omitted). Courts consider the record as a whole, including both the evidence that
supports and detracts from the Commissioner’s decision. Id.; Lingenfelter v. Astrue, 504 F.3d
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1028, 1035 (9th Cir. 2007). “Where the evidence is susceptible to more than one rational
interpretation, the ALJ’s decision must be affirmed.” Vasquez, 572 F.3d at 591 (internal
quotation marks omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)
(“Where the evidence as a whole can support either a grant or a denial, [the court] may not
substitute [its] judgment for the ALJ’s.”) (internal quotation marks omitted).
DISCUSSION
Plaintiff raises four issues on appeal. She argues the ALJ erred by improperly (1)
rejecting her subjective symptom testimony; (2) categorizing her anxiety and depression as nonsevere; (3) rejecting lay witness testimony; and (4) rejecting medical opinion evidence.
I.
Plaintiff’s Testimony
Plaintiff argues the ALJ improperly discounted her subjective symptom testimony. The
ALJ is responsible for evaluating symptom testimony. SSR 16-3p, 2017 WL 5180304, at *1
(Oct. 25, 2017). Once a claimant shows an underlying impairment and a causal relationship
between the impairment and some level of symptoms, clear and convincing reasons are needed
to reject a claimant’s testimony if there is no evidence of malingering. Carmickle v. Comm’r, 533
F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative evidence that the plaintiff is malingering,
“where the record includes objective medical evidence establishing that the claimant suffers from
an impairment that could reasonably produce the symptoms of which he complains, an adverse
credibility finding must be based on clear and convincing reasons” (quotation marks and citation
omitted)); see also Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (the ALJ engages in a
two-step analysis for subjective symptom evaluation: First, the ALJ determines whether there is
“objective medical evidence of an underlying impairment which could reasonably be expected to
produce the pain or other symptoms alleged”; and second, “if the claimant has presented such
evidence, and there is no evidence of malingering, then the ALJ must give specific, clear and
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convincing reasons in order to reject the claimant’s testimony about the severity of the
symptoms.” (quotation marks and citations omitted)). An ALJ must include specific findings
supported by substantial evidence and a clear and convincing explanation for discounting a
claimant’s subjective symptom testimony.
When evaluating subjective symptom testimony, an ALJ may properly consider several
factors, including a plaintiff’s “daily activities, inconsistencies in testimony, effectiveness or
adverse side effects of any pain medication, and relevant character evidence.” Orteza v. Shalala,
50 F.3d 748, 750 (9th Cir. 1995). The ALJ may also consider a plaintiff’s ability to perform
household chores, the lack of any side effects from prescribed medications, and the unexplained
absence of treatment for excessive pain. Id.
Here, the ALJ summarized Plaintiff’s testimony as follows:
[Plaintiff] testified she was unable to work because of pain and migraines. She testified
she could not sit, stand or walk for long periods. She testified she could not lift much. She
testified her pain was caused by too much activity, not getting enough sleep, walking too
much, and sitting for periods. She testified she could sit at most an hour. She testified that
exercising and physical therapy did not help her pain. She testified her fibromyalgia
caused her to be very forgetful and have difficulty focusing. She testified having
migraines two to three times a month that last for two to four days. She testified her
migraines "started back up" about a year ago. She testified she could walk a block before
needing to rest for five to ten minutes. She testified she [] could not lift anything
frequently. She testified the most she could lift was ten pounds. She testified her sleep
has gotten progressively worse due to her pain. She testified having about "two bad" days
a week in which she is resting most of the day. She testified that being around too many
people (ten or more people) caused her anxiety. She testified she could not handle being
around too many people.
Tr. 83.
The ALJ concluded that Plaintiff’s “medically determinable impairments could
reasonably be expected to cause some of the alleged symptoms” and did not identify evidence of
malingering. Tr. 83. However, the ALJ found that Plaintiff’s allegations were not consistent with
the record. Tr. 85. Specifically, (1) the alleged symptoms were not supported by objective
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medical evidence; (2) Plaintiff failed to follow the recommended treatment (i.e. exercise); (3)
“medications/treatment” were relatively effective in controlling Plaintiff’s symptoms; (4)
Plaintiff’s testimony regarding the frequency of her migraines was inconsistent with treatment
notes; and (5) Plaintiff’s daily activities were “not limited to the extent one would expect, given
the complaints of disabling symptoms and limitations.” Tr. 86–87. The ALJ also found that
Plaintiff’s mental health limitations were inconsistent with the medical evidence. Tr. 86.
1. Objective Medical Evidence
An ALJ may consider objective medical evidence in evaluating a plaintiff’s subjective
symptom testimony, so long as the ALJ does not reject such testimony solely because it is
unsubstantiated by the objective medical evidence. 20 C.F.R. § 416.929(c); Rollins v. Massanari,
261 F.3d 853, 856, 857 (9th Cir. 2001) (“Once a claimant produces objective medical evidence
of an underlying impairment, an ALJ may not reject a claimant's subjective complaints based
solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain[;]
. . . . While subjective pain testimony cannot be rejected on the sole ground that it is not fully
corroborated by objective medical evidence, the medical evidence is still a relevant factor in
determining the severity of the claimant's pain and its disabling effects.” (internal quotation and
brackets omitted)).
Here, the ALJ concluded that
[t]he objective medical evidence does not support the claimant's alleged symptoms of
pain and its limiting effects. Dr. Thompson found she was negative for weakness and had
full range of motion of all her joints (Ex. 4F). FNP Swanson found she had normal
musculoskeletal range of motion, normal strength, no sensory deficit, and normal reflexes
(Ex. llF/5-6). Dr. Bitts found she had nontender neck, normal range of motion of the
back, and normal strength and tone, reflexes, coordination and gait (Ex. llF/24). Dr.
White found she had normal sensory and motor function of the extremities, and no gross
ataxia (Ex. SF). Dr. Olson repeatedly found she had normal tone and coordination,
normal gait, and intact sensation (Ex. 12F). Dr. Luhrs found she had normal range of
motion of the arms and shoulders, grossly symmetrical muscle tone and bulk, and normal
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gait (Ex. l lF/40). This evidence is inconsistent with the claimant's allegations of
debilitating pain.
Tr. 86.
As noted, Plaintiff testified to chronic and debilitating pain from migraines and
fibromyalgia. While the ALJ identified various objective tests with “normal” findings—such as
normal range of motion, normal gait, and normal strength and tone—the ALJ did not explain
how these normal findings contradict, or even fail to support, Plaintiff’s allegations related to
fibromyalgia, migraines, or chronic pain.
The Ninth Circuit has addressed this very issue and explained that:
what is unusual about [fibromyalgia] is that those suffering from it have muscle strength,
sensory functions, and reflexes that are normal. Their joints appear normal, and further
musculoskeletal examination indicates no objective joint swelling. Indeed, there is an
absence of symptoms that a lay person may ordinarily associate with joint and muscle
pain. The condition is diagnosed entirely on the basis of the patients' reports of pain and
other symptoms. There are no laboratory tests to confirm the diagnosis.
Revels v. Berryhill, 874 F.3d 648, 656 (9th Cir. 2017) (original alterations, quotation marks, and
citations omitted). Thus, like in Revels, while Plaintiff may have exhibited “normal muscle
strength, tone, and stability, as well as a normal range of motion,” these examination results “are
perfectly consistent with debilitating fibromyalgia.” Id. at 666. The ALJ therefore erred in
relying on this irrelevant objective medical evidence to discount Plaintiff’s subjective symptom
testimony.
2. Failure to Follow a Recommended Treatment
An “ALJ may properly rely on ‘unexplained or inadequately explained failure to seek
treatment or to follow a prescribed course of treatment.’” Molina, 674 F.3d at 1113 (quoting
Tomasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008)). Here, the ALJ suggests that Plaintiff
did not follow throughout with the recommended treatment of regular exercise:
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Treatment providers have repeatedly counseled her that exercise is an important
cornerstone to treatment of her fibromyalgia. The record shows she was walking daily at
times (Exs. 11F /21 and 12F/22) but also shows she did not exercise regularly (Ex. 11F/4,
12). Her doctors continued to recommend physical therapy and exercise (Exs. 4F/3; and
11F/7, 25, 32, 37), which suggests that they wanted her to continue to increase her
activity level. Of note, treatment providers also noted that physical activity and sleep
helped with migraines (Ex. 11F/37).
Tr. 86.
As a preliminary matter, the Court finds the ALJ’s reasoning plainly unreasonable in this
context. Specifically, the Court notes that the ALJ also used Plaintiff’s attempts to exercise to
support her conclusion that Plaintiff’s testimony was inconsistent with her daily activities. In
other words, the ALJ seems to conclude that Plaintiff did not exercise enough (because doctors
recommended exercise), but also that Plaintiff exercised too much (because her reported exercise
was inconsistent with the severity of her reported symptoms). Such a double standard is
contradictory and unreasonable.
Moreover, the Court does not agree with the ALJ’s description or interpretation of the
medical evidence as a whole. First, the Court does not agree with the ALJ’s apparent inference
that because Plaintiff’s doctors recommended that she continue her physical activity, these
doctors were, in reality, recommending that Plaintiff increase her physical activity. See Tr. 485
(doctors recommended that she “continue exercise as tolerated” and “continue physical
therapy”). As the Court sees no statement from a doctor that Plaintiff was noncompliant with
treatment, the Court finds such speculation without support in the medical record. Rather, the
record shows that Plaintiff did, in fact, regularly attempt to exercise. Tr. 469 (walks daily), Tr.
540 (walking daily, planning to start yoga at home), Tr. 516 (reported performing physical
therapy exercises); Tr. 514 (reported working to walk ten minutes at a time, three times a day,
but was “very limited with walking secondary to pain”). The record also shows that Plaintiff
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reported that these attempts were frequently extremely painful. Tr. 113, 452 (Plaintiff “is not
exercising daily because when she tries it is so painful she cannot stand it”); Tr. 460 (pain
exacerbated by “activity, ie. Housework, walking briskly”); see also see Fair v. Bowen, 885 F.2d
597, 603 (9th Cir. 1989) (noting that an unexplained failure to seek or follow a prescribed course
of treatment may be a reason for discounting a claimant’s testimony). Because the record shows
that Plaintiff regularly attempted to, and often succeeded at, following the prescribed course of
treatment, and offered valid reasons for when she could not, the ALJ erred in rejecting Plaintiff’s
subjective symptom testimony on these grounds.
3. Effective Treatment
An ALJ may also consider whether treatment effectively controls a plaintiff’s condition.
Orteza, 50 F.3d at 750; Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir.
2006) (“Impairments that can be controlled effectively with medication are not disabling”
(citations omitted)); see also Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (plaintiff’s
physical ailments were adequately treated with over-the-counter pain medication). Here, the ALJ
concluded that medication and other treatments were relatively effective in controlling Plaintiff’s
migraines and fibromyalgia.
With regard to migraines, the ALJ cited reports that Plaintiff’s migraines were either
somewhat improved or relatively well controlled. See Tr. 409, 483, 524. However, the
longitudinal record demonstrates that even when “relatively” well controlled, Plaintiff’s
migraines were frequent and debilitating. See Tr. 540 (three migraines in March 2016), Tr. 16
(“migraines every other week recently”), Tr. 310 (record from 2015 noted that “[w]as having
daily migraines last month”). Even on Relpax, Plaintiff testified she was still “down” for a few
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days following each migraine. Tr. 115. Indeed, the record suggests that although medication may
have lessened the intensity of Plaintiff’s migraines, it did not lessen their frequency. Tr. 530.
Similarly, the medical records do not support the ALJ’s conclusion that gabapentin and
acupuncture effectively treated Plaintiff’s fibromyalgia symptoms. For example, the ALJ wrote
that “a treating doctor noted that gabapentin was helpful for her fibromyalgia (Ex. 12/F28).” Tr.
87. In reality, the doctor noted that “Gabapentin helps some” but “[p]ain is constant,” at its worst
in the late afternoon and evening, and that Plaintiff’s fibromyalgia generally was “poorly
controlled at this point.” Tr. 546. And, as pointed out by Plaintiff, other records suggest that even
on gabapentin “[p]atient state[d] that her pain is at a 7-8/10 on a daily basis.” Tr. 452; see also
Tr. 365. Because the ALJ’s conclusion of “effective treatment” is not supported by substantial
evidence, the ALJ erred in using it to discount Plaintiff’s subjective symptom testimony.
4. Inconsistent Testimony
An ALJ may rely on inconsistent testimony when assessing a plaintiff’s subjective
symptom testimony. Molina, 674 F.3d at 1112. Here, the ALJ found that Plaintiff’s hearing
testimony regarding the frequency of her migraines was inconsistent with treatment notes in the
record. Tr. 86. Specifically, the ALJ wrote that while Plaintiff “testified having migraines two to
three times a month that last for two to four days . . . treatment notes reflect that she reported that
[] sometimes she did not have a migraine for more than one month.” Tr. 86. The ALJ cited a
single record from November 2014, where Plaintiff reported sometimes going “more than a
month with no migraine but sometimes needing 3 Relpax within the same week.” Tr. 397. While
Plaintiff seems to argue that “3 Relpax” means three migraines, she provides the Court with no
support for this argument. Regardless, the Court fails to see how this single report contradicts
Plaintiff’s testimony. Not only was Plaintiff asked about the frequency of her migraines at the
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time of the hearing (“how often are you having migraines now?”), but, as noted by the ALJ
earlier, Plaintiff testified that while her migraines were well controlled for a period of time
(including during 2014), her migraines “started back up” about a year earlier (i.e. during August
2015), after the date of the cited record. See Tr. 115. While the Commissioner directs the Court
to a record purporting to show that Plaintiff, at one doctor’s visit, reported only two migraines
over a seven-week period, the medical record at large suggests that these migraines occurred, on
average, with much greater frequency. See Tr. 540 (three migraines in March 2016), Tr. 16
(“migraines every other week recently”), Tr. 310 (“daily migraines last month”). In sum, the
records reflect that, while the frequency of Plaintiff’s migraines fluctuated at times, Plaintiff’s
response to the question “how often are you having migraines now?” Tr. 114 (emphasis added),
was, in fact, consistent with her response to a medical provider that same month, Tr. 61 (“Has
been having 2-3 migraines a month.”).
Thus, the ALJ erred in relying on “inconsistent testimony” to discount Plaintiff’s
subjective symptom testimony.
5. Daily Activities
An ALJ may discount a plaintiff’s testimony when it is inconsistent with her daily
activities. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). As explained in Orn, there are “two
grounds for using daily activities to form the basis of an adverse credibility determination:”
where the activities contradict a plaintiff’s own testimony, or where they meet the threshold of
transferable work skills. Id.
Here, the ALJ described Plaintiff’s testimony as follows:
She reported she was able to perform her activities of daily living independently (Ex.
11F/12). She reported preparing meals (Ex. 6E). She reported performing household
chores such as light cleaning, dishwashing, laundry and dusting (Id). She reported going
outside daily (Id). She reported she was able to drive (Id). She reported she was able to
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go outside alone (Id). She reported shopping in stores weekly (Id). She reported her
hobbies included gardening, walking, hiking, traveling and reading (Id).
Tr. 87.
The ALJ went on to note that:
In August of 2014, she reported she had been traveling to Seattle once a week from
Oregon to help her dad who had undergone surgery for lung cancer (Ex. SF/I). In March
of 2015, she reported she had joined a gym and had an appointment with a trainer the
next day (Ex 11F/9). In April of 2015, she reported she exercised by walking daily (walks
a circuit in the neighborhood three times a day) (Ex. 11F/21). In May of 2015, she
reported she continued to walk regularly (Ex. 13F/35). In June of 2015, she reported she
went to a lake over the weekend with her family (Ex. 13F/41). In May of 2016, she
reported she exercised by walking, stretching and household chores (Ex. 10F/21). In June
of 2016, she reported working out in her yard (Ex. 10F/I). At the hearing, she testified she
went to a family reunion in the Tri-Cities in July of 2016.
Id. The ALJ then concluded that “[t]hese activities [we]re inconsistent with the severity of
symptoms reported.” Id.
First, there is no evidence to suggest that Plaintiff’s activities—including “going outside
alone” or “shopping weekly”—are “‘transferable’ to a work setting.” See Orn, 495 F.3d at 639.
There is also no “proof that [Plaintiff] spent a ‘substantial’ part of her day engaged in
transferable skills.” Id. (“The ALJ must make ‘specific findings relating to [the daily] activities’
and their transferability to conclude that a claimant's daily activities warrant an adverse
credibility determination.”). “[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).
Second, the Court does not see how these cited activities contradict Plaintiff’s own
testimony. Regarding Plaintiff’s attempts to exercise, the Court again notes that the ALJ took the
contradictory position that Plaintiff exercised both too much and too little. See supra section I.2.
Moreover, the exercise identified by the ALJ is, again, the very treatment prescribed by
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Plaintiff’s physicians. And, the cited examples do not suggest that Plaintiff was exercising in
ways that might actually contradict her testimony—by for example, describing exercise of an
intensity or duration that could contradict Plaintiff’s subjective symptom testimony.
Much of the remaining testimony is mischaracterized or taken out of context. For
example, the ALJ noted that Plaintiff “reported her hobbies included gardening, walking, hiking,
traveling and reading.” Tr. 87, 275. However, Plaintiff also clarified—in the same report—that
since she became disabled, she only reads once in a while, walks some (“not as much” any
more), and “[d]ue to the pain, [she could] no longer garden, hike, or travel.” Id. While Plaintiff
reported attending a family reunion in the Tri-Cities in July of 2016, she also testified that it was
a difficult three-hour drive, and she needed to stop every hour to walk, stretch, and move around.
Tr. 106.3 Plaintiff also qualified her statements by noting she can only do “light” cleaning, “small
amounts” of dishes, “small” loads of laundry, and “very light” dusting. Tr. 274.
Finally, even ignoring these missing—and relevant—qualifiers and explanations, the ALJ
still failed to explain how Plaintiff’s testimony was inconsistent with her allegations. While the
ALJ noted that Plaintiff can go outside daily by herself, drive, shop weekly, and perform
household chores such as (light) cleaning, (small) loads of laundry, and (light) dusting, the ALJ
did not explain how these activities are inconsistent with Plaintiff’s allegations. Thus, in sum, the
The ALJ also noted that Plaintiff “reported [in 2014 that] she had been traveling to Seattle once
a week from Oregon to help her dad who had undergone surgery for lung cancer.” Tr. 87. While
Plaintiff now argues the visit was a “one-time activity during his death,” Pl.’s Br. 23, Plaintiff’s
citation to her hearing testimony does not support this contention. Rather, during that hearing,
Plaintiff was asked by the ALJ about the trips and responded only that “my husband took me up
to Seattle and I actually had to stay up in Seattle. My dad had surgery, so I was in the VA
hospital with him.” Tr. 107. The ALJ did not ask any follow up questions. Thus, the record is
ambiguous as to whether this trip(s) was a one-time occurrence or a weekly activity. However,
even if the ALJ’s interpretation of the record is reasonable—and Plaintiff did visit her father
weekly in 2014, this single reason is not sufficient, in light of the record as a whole, to uphold
the ALJ’s decision on this issue. See Burrell v. Colvin, 775 F.3d 1133 (9th Cir. 2014) (finding
“one weak reason is insufficient to meet the specific, clear and convincing standard on this
record” (citation and internal quotation marks omitted)).
3
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ALJ erred by relying on Plaintiff’s activities of daily living to discount her subjective symptom
testimony.
6. Mental Health Impairments
The ALJ found that Plaintiff’s reported mental health impairments were inconsistent with
the medical evidence. Tr. 86. Specifically, the ALJ noted that treating psychologists categorized
Plaintiff’s anxiety as relatively manageable, and while Plaintiff’s symptoms were exacerbated by
situational stressors (as opposed to any “clinical worsening”), they also improved with
medication. Tr. 86.
Plaintiff argues the ALJ (1) ignored her depression, the “most disabling of her
conditions,” and (2) erroneously focused on her decision not to pursue mental healthcare, which
was based on changes to her insurance. Pl.’s Br. 23. The Court does not find these arguments
persuasive. Plaintiff testified that while “I do have some depression, [] the anxiety is the harder
one to deal with for me.” Tr. 116. With regard to insurance, Plaintiff does not assert she lost her
insurance, only that it changed. Tr. 117, 103–04.
Moreover, while Plaintiff points to one record where Plaintiff scored “severe anxiety” on
the GAD-7 scale, Tr. 473, the ALJ cited records that support the opposite conclusion, see Tr. 589
(“anxiety appears relatively manageable), Tr. 597 (negative for anxiety). “Where the evidence is
susceptible to more than one rational interpretation, the ALJ's decision must be affirmed.”
Vasquez, 572 F.3d at 591. Thus, the ALJ did not err in rejecting Plaintiff’s testimony regarding
her mental health impairments. However, because the ALJ's other reasons—discussed above—
are not supported by substantial evidence, the ALJ committed reversible error in discrediting
Plaintiff’s subjective symptom testimony.
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II.
Severe Impairments
Plaintiff argues the ALJ erred at step two by failing to categorize her anxiety disorder and
major depressive disorder as severe or non-severe impairments that affected her RFC. Pl.’s Br. at
25. The ALJ considers the severity of the claimant’s impairment(s) at step two. 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant does not have a severe, medically
determinable physical or mental impairment that meets the duration requirement, or a
combination of impairments that is severe and meets the duration requirement, the claimant is
not disabled. Id.
The Ninth Circuit has explained that the severity determination at step two is expressed
“in terms of what is ‘not severe.’” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). A
severe impairment is one that significantly limits the claimant’s physical or mental ability to do
basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). “Basic work activities” are the
abilities and aptitudes necessary to do most jobs, including physical functions such as walking,
standing, sitting, and lifting, and mental functions such as understanding, carrying out, and
remembering simple instructions. 20 C.F.R. §§ 404.1522(b), 416.922(b). In Social Security
Ruling (“SSR”) 85-28, the Commissioner explained that “an impairment is not severe if it has no
more than a minimal effect on an individual’s physical or mental ability(ies) to do basic work
activities.” 1985 WL 56856, at *3, (Jan. 1, 1985) (quoting 20 C.F.R. 404.1521(a) and
416.921(a)); see also SSR 96-3p, 1996 WL 374181, at *1 (July 2, 1996) (“[A]n impairment(s)
that is ‘not severe’ must be a slight abnormality (or a combination of slight abnormalities) that
has no more than a minimal effect on the ability to do basic work activities.”).
“[T]he step-two inquiry is a de minimis screening device to dispose of groundless
claims.” Smolen, 80 F.3d at 1290 (citing Bowen v. Yuckert, 482 U.S. at 153–54). “[T]he severity
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regulation is to do no more than allow the [Social Security Administration] to deny benefits
summarily to those applicants with impairments of a minimal nature which could never prevent a
person from working.” SSR 85-28, 1985 WL 56856, at *2, (Jan. 1, 1985) (internal quotation
omitted). “It is not meant to identify the impairments that should be taken into account when
determining the RFC.” Buck v. Berryhill, 869 F.3d 1040, 1048–49 (9th Cir. 2017). When
determining the claimant’s RFC, the ALJ must consider “limitations and restrictions imposed by
all of an individual’s impairments, even those that are not ‘severe.’” Id. at 1049 (citation
omitted). “The RFC therefore should be exactly the same regardless of whether certain
impairments are considered ‘severe’ or not.” Id. Therefore, where the ALJ fails to list a
medically determinable impairment at step two, but nonetheless considers the limitations posed
by the impairment in the RFC, any error at step two is harmless. Lewis v. Astrue, 498 F.3d 909,
911 (9th Cir. 2007).
Here, the ALJ concluded that Plaintiff’s medically determinable mental impairments
included depressive disorder and anxiety. Tr. 81. However, the ALJ found that these
impairments caused no more than minimal limitation in Plaintiff’s ability to perform basic work
activities, based on the “paragraph B” criteria. Tr. 81. While Plaintiff highlights certain records
purporting to show more significant limitations, the ALJ explicitly considered—but did not
credit—these limitations at step 4 of the analysis. For example, the ALJ found that Plaintiff’s
“allegations of significant limitations related to her mental health impairments are inconsistent
with the medical evidence,” noting that “[a] treating psychologist noted her anxiety appeared
relatively manageable,” Plaintiff reported “improvement in her mental health symptoms with
medication,” and “the record shows she did not follow through on counseling.” Tr. 86. Thus,
even if the ALJ failed to categorize Plaintiff’s anxiety disorder and major depressive disorder as
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severe, because the ALJ considered (even if she did not ultimately adopt) these limitations in
constructing the RFC, any error was harmless.
III.
Lay Witness Testimony
Lay witness testimony regarding a claimant's symptoms or how an impairment affects
her ability to work is competent evidence that an ALJ must take into account. Molina, 674 F.3d
at 1114; Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006) (“In
determining whether a claimant is disabled, an ALJ must consider lay witness testimony
concerning a claimant’s ability to work.”). Lay witness testimony cannot be disregarded without
comment, and the ALJ must give germane reasons for discounting such testimony. Molina v.
Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012). Germane reasons must be specific, Bruce v. Astrue,
557 F.3d 1113, 1116 (9th Cir. 2009) (citing Stout, 454 F.3d at 1053), and may include, for
example, conflicts with medical evidence and inconsistent daily activities, Lewis v. Apfel, 236
F.3d 503, 511–12 (9th Cir. 2001).
Here, Plaintiff argues the ALJ improperly rejected Plaintiff’s husband’s testimony. The
ALJ wrote only that:
His statements support the claimant's allegations, having witnessed her in her day-today
life, but do not establish that the claimant is disabled. Although the statements are
generally credible as to his observations, they are inconsistent with the medical evidence
of record, which does not fully support the claimant's allegations, and are inconsistent
with the claimant's reported level of activity throughout the record.
Tr. 88.
While, as a general matter, an ALJ may discount lay testimony when it conflicts with the
medical evidence or plaintiff’s daily activities, the record here does not support this conclusion.
As noted above, the ALJ erred in relying on inconsistent medical evidence and Plaintiff’s
activities of daily living to reject Plaintiff’s subjective treatment testimony. Because the ALJ
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provides no additional support, the Court assumes the ALJ intended to rely on the same records
here. Thus, because the ALJ erred in relying on these reasons to reject Plaintiff’s subjective
symptom testimony, the ALJ similarly erred in relying on them to reject the lay witness
testimony.
IV.
Medical Opinion Evidence
Plaintiff argues the ALJ improperly rejected the opinion of Dr. Rambousek, a treating
physician. Social security law recognizes three types of physicians: (1) treating, (2) examining,
and (3) nonexamining. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). Generally, more
weight is given to the opinion of a treating physician than to the opinion of those who do not
actually treat the claimant. Id.; 20 C.F.R. §§ 404.1527(c)(1)-(2), 416.927(c)(1)-(2). More
weight is also given to an examining physician than to a nonexamining physician. Garrison, 759
F.3d at 1012.
If a treating physician’s medical opinion is supported by medically acceptable diagnostic
techniques and is not inconsistent with other substantial evidence in the record, the treating
physician’s opinion is given controlling weight. Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir.
2014); Orn, 495 F.3d at 631. If the treating physician’s opinion is not contradicted by another
doctor, the ALJ may reject it only for “clear and convincing” reasons supported by substantial
evidence in the record. Ghanim, 763 F.3d at 1160–61.
Even if the treating physician’s opinion is contradicted by another doctor, the ALJ may
not reject the treating physician’s opinion without providing “specific and legitimate reasons”
which are supported by substantial evidence in the record. Id. at 1161; Bayliss v. Barnhart, 427
F.3d 1211, 1216 (9th Cir. 2005). Here, the parties agree that Dr. Rambousek’s opinion was
contradicted by the opinion of state agency and non-examining physicians. Pl.’s Reply 11; Def.’s
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Resp. 17. Thus, to reject Dr. Rambousek’s opinion, the ALJ was required to provide “specific
and legitimate” reasons, supported by substantial evidence in the record, for doing so. See Revels
v. Berryhill, 874 F.3d 648, 662–63 (9th Cir. 2017) (because a treating physician’s opinion was
contradicted by findings of non-examining state agency doctors, “the ALJ was required to
provide specific and legitimate reasons supported by substantial evidence.”).
Dr. Rambousek opined, in relevant part, that Plaintiff was severely limited in her
“functional capacity and was incapable of minimal (sedentary) activity, and was unable to
engage in stress situations or engage in interpersonal relations (marked limitation).” Tr. 87. He
also opined that Plaintiff “could not lift, push, pull, bend, stoop, and stand, sit or walk for
prolonged periods.” Tr. 87.
The ALJ gave these opinions “little weight” because they were “inconsistent with the
record as whole” and with Plaintiff’s “demonstrated functioning.” Tr. 87. The ALJ also wrote
that “the medical evidence shows that once she began treating her conditions, she experienced
improvement that also improved her functioning. Of note, at the hearing, the claimant testified
she was denied both short and long-term disability.” Tr. 87.
The ALJ erred by rleying on the fact that Plaintiff was denied both short and long-term
disability payments; Plaintiff testified her claim was denied as a pre-existing condition. See Tr.
127. The ALJ also erred in relying on “evidence of improvement;” as discussed in depth above,
the record as a whole does not support the ALJ’s position that Plaintiff’s migraines and
fibromyalgia were sufficiently improved. Similarly, the Court found the ALJ erred by relying on
Plaintiff’s activities of daily living, i.e. Plaintiff’s “demonstrated functioning.” Without these
reasons, the ALJ’s conclusion depends solely on the rationale that Dr. Rambousek’s opinion is
“inconsistent with the record as a whole.” Such a broad and conclusory statement does not
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constitute a “specific and legitimate” reason sufficient to uphold the ALJ’s conclusion. The ALJ
therefore erred in rejecting Dr. Rambousek’s opinion.
V.
RFC
Lastly, Plaintiff argues the RFC is contrary to law because it is not based upon all
evidence, as required by SSR 96-8. To the extent Plaintiff raises the same issues addressed
above, the Court will not review them again here. To the extent Plaintiff raises new issues, the
Court finds them too cursory and undeveloped to merit review. See Carmickle, 533 F.3d at 1161
n.2; Knibbs v. Berryhill, 731 F. App’x 684, 685 (9th Cir. 2018).
VI.
Remand for Further Proceedings
The decision whether to remand for further proceedings or for immediate payment of
benefits is within the Court’s discretion. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000).
To determine which type of remand is appropriate, the Ninth Circuit uses a three-part test.
Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014); see also Treichler v. Comm’r, 775 F.3d
1090, 1100 (9th Cir. 2014) (“credit-as-true” rule has three steps). First, the ALJ must fail to
provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical
opinion. Garrison, 759 F.3d at 1020. Second, the record must be fully developed and further
administrative proceedings would serve no useful purpose. Id. Third, if the case is remanded and
the improperly discredited evidence is credited as true, the ALJ would be required to find the
claimant disabled. Id. To remand for an award of benefits, each part must be satisfied. Id.; see
also Treichler, 775 F.3d at 1101 (when all three elements are met, “a case raises the ‘rare
circumstances’ that allow us to exercise our discretion to depart from the ordinary remand rule”
of remanding to the agency).
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Plaintiff argues that remand for an award of benefits is appropriate. This case, however,
is not one with “rare circumstances” justifying that type of remand. For example, it is unclear to
the Court whether Plaintiff did, in fact, drive to Seattle weekly to care for her father during 2014.
See Tr. 107. Additionally, while Dr. Rambousek ultimately opined that Plaintiff was incapable of
even minimal activity, his records also reflect discussions with Plaintiff that contemplated
Plaintiff’s eventual return to work. Tr. 363. He recommended that once Plaintiff was back on her
feet, she should look for a lower stress job with fewer physical demands. Tr. 363. According to
the ALJ, this “suggests that the doctor did not see the claimant being disabled for the long term,
but rather that she needed a relatively short window to get her pain and depression under control
to be able to work at a less demanding job.” Tr. 87. Thus, while the ALJ's decision includes
reversible error, the record is not fully developed and further proceedings are required. The Court
therefore declines to remand this case for the payment of benefits.
CONCLUSION
The decision of the Commissioner is reversed and remanded for further administrative
proceedings.
IT IS SO ORDERED.
Dated this
day of ________________, 2019.
MARCO A. HERNÁNDEZ
United States District Judge
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