Torres v. Colvin

Filing 21

ORDER REVERSING AND REMANDING FOR FURTHER PROCEEDINGS by U.S. District Judge John C Coughenour. (PM)

THE HONORABLE JOHN C. COUGHENOUR

1
2
3
4
5
6

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

7
8
9

TONI M TORRES,

10

CASE NO. C15-5344 JCC
Plaintiff,

11
v.
12

ORDER REVERSING AND
REMANDING FOR FURTHER
PROCEEDINGS

CAROLYN W COLVIN,
13
Defendant.
14
This matter comes before the Court on Plaintiff’s objections to Magistrate Judge Brian

15

16 Tsuchida’s Report and Recommendation (Dkt. No. 19). Having thoroughly considered the
17 parties’ briefing and the relevant record, the Court finds oral argument unnecessary and hereby
18 REVERSES the Commissioner of Social Security’s decision denying benefits and REMANDS
19 for further administrative proceedings.
20 I.

BACKGROUND

21

Plaintiff is a woman in her fifties who suffers from Meniere’s disease. (Dkt. No. 9-2 at

22 13, 16.) She appeals the Commissioner’s decision to deny her disability benefits. (Dkt. No. 9-2 at
23 2–7.) In his R&R, Judge Tsuchida recommended that the Commissioner’s decision be affirmed.
24 (Dkt. No. 18 at 9.) Plaintiff has raised specific objections to the R&R. (Dkt. No. 19.)
25 II.

DISCUSSION

26

A.

Standard of Review

ORDER REVERSING AND REMANDING FOR
FURTHER PROCEEDINGS
PAGE - 1

1

“The district court properly affirms the Commissioner's decision denying benefits if it is

2 supported by substantial evidence and based on the application of correct legal standards.”
3 Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) “Substantial evidence is such relevant
4 evidence as a reasonable mind might accept as adequate to support a conclusion.” Webb v.
5 Barnhart, 433 F.3d 683, 686 (9th Cir. 2005).
6

B.

Plaintiff’s Objections to the R&R

7

Plaintiff raises five objections to the R&R. The Court will conduct de novo review of

8 each one. Fed. R. Civ. P. 72(b)(3).
9
10

1.

Objection One: The R&R Misinterprets Listing § 2.07

Under Step Two of the disability evaluation process, the ALJ determined that Plaintiff

11 suffers from Meniere’s disease, and that this is a severe impairment. (Dkt. No. 9-2 at 13.) Under
12 Step Three, the ALJ then assessed whether Plaintiff’s Meniere’s disease met the severity of one
13 of the listed impairments in the regulations. (Dkt. No. 9-2 at 14.) Listing 2.07, the applicable
14 impairment, reads as follows:
15
16
17
18
19
20

Disturbance of labyrinthine-vestibular function (including Meniere's disease),
characterized by a history of frequent attacks of balance disturbance, tinnitus, and
progressive loss of hearing. With both A and B:
A. Disturbed function of vestibular labyrinth demonstrated by caloric or
other vestibular tests; and
B. Hearing loss established by audiometry.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 2.07. In analyzing Plaintiff’s symptoms under Listing
2.07, the ALJ focused on the frequency of Plaintiff’s vertigo attacks. The ALJ found that these

21 attacks were “infrequent” and “well controlled since her alleged onset date.” (Dkt. No. 9-2 at
22 15.) Therefore, the ALJ held that Plaintiff’s Meniere’s disease did not meet the criteria of Listing
23 2.07. (Id. at 14.)
24

Plaintiff argues that the ALJ erred in focusing on the frequency of only her vertigo

25
attacks, which are not mentioned in Listing 2.07, rather than on her general balance
26
ORDER REVERSING AND REMANDING FOR
FURTHER PROCEEDINGS
PAGE - 2

1

disturbances, which are mentioned. According to Plaintiff, because she suffered from “chronic

2 severe imbalance,” she meets the criteria of Listing 2.07, regardless of the frequency of her
3 vertigo attacks. (Dkt. No. 19 at 3.)
4

Defendant argues that another listing, 2.00(C), defines “balance disturbance” as being

5 equivalent to vertigo, and that Listing 2.07’s requirement of “frequent attacks of balance
6

disturbance” should be read as “frequent attacks of vertigo.” Defendant is incorrect. Listing

7
2.00(C) merely explains how to “evaluate vertigo associated with disturbances of labyrinthine8
9

vestibular function, including Meniere's disease.” § 2.00(C) (emphasis added). In doing so, it

10 defines vertigo as a type of balance disturbance; it does not define balance disturbance as vertigo.
11 § 2.00(C)(1); see also Million v. Astrue, No. EDCV 09-1435 AGR, 2011 WL 1156631, at *6
12 (C.D. Cal. Mar. 29, 2011) (holding that Listing 2.00(C) is used to evaluate whether a claimant
13
14

“meet[s] the definition of statutory vertigo”) (emphasis added).
Consequently, the Court declines to read a vertigo requirement into Listing 2.07. The

15
16

listing’s plain language requires only frequent attacks of “balance disturbance.” It does not

17 mention vertigo. If Listing 2.07’s drafters intended to specifically require frequent attacks of
18 “vertigo,” they would have made this clear by including it. As Listing 2.00(C) demonstrates, the
19 drafters were well aware that vertigo is a type of balance disturbance associated with Meniere’s
20 disease. Their decision to include only the more general category of “balance disturbance” in
21

Listing 2.07 indicates that a claimant need not show frequent attacks of vertigo to meet its

22
criteria. Instead, frequent attacks of balance disturbance—construed more broadly—will suffice.
23
24

The Court agrees with Plaintiff that the ALJ only examined Plaintiff’s vertigo attacks in

25 determining whether her Meniere’s disease satisfied Listing 2.07. (Dkt. No. 9-2 at 15.) This was
26 a reversible misapplication of the correct legal standard. Sandgathe, 108 F.3d at 980. It was not
ORDER REVERSING AND REMANDING FOR
FURTHER PROCEEDINGS
PAGE - 3

1

harmless error, because if the ALJ had examined all of Plaintiff’s balance disturbances, she may

2 have concluded that Plaintiff suffered from a severe impairment. See Molina v. Astrue, 674 F.3d
3 1104, 1115–16 (9th Cir. 2012) (holding that an error is not harmless if it “alters the outcome of
4 the case”). In fact, the error was particularly serious because, as the Court will describe below,
5 the ALJ’s conclusion that Plaintiff’s vertigo was her only pertinent symptom guided the ALJ’s
6

analysis of Plaintiff’s claim as a whole.

7
8
9

2. Objection Two: The R&R misconstrues Dr. Schwartz’s opinions
In determining Plaintiff’s residual functional capacity, the ALJ considered the opinion of

10 Dr. Schwartz, Plaintiff’s treating physician. (Dkt. No. 9-2 at 19.) In April 2013, Dr. Schwartz
11 completed a medical source questionnaire describing Plaintiff’s limitations due to Meniere’s
12 disease. (Dkt. No. 9-7 at 128.) In the questionnaire, Dr. Schwartz reported that Plaintiff’s
13
14

“Meniere’s attacks” occurred “daily” and that she was “[i]ncapable of even ‘low stress’ jobs.”
(Dkt. No. 9-7 at 129, 131.) The ALJ gave minimal weight to the questionnaire, finding that it

15
16

was inconsistent with Dr. Schwartz’s other treatment records. (Dkt. No. 9-2 at 19.) Plaintiff

17 argues that this conclusion was in error.
18

“When evidence in the record contradicts the opinion of a treating physician, the ALJ

19 must present ‘specific and legitimate reasons’ for discounting the treating physician's opinion,
20 supported by substantial evidence.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228
21

(9th Cir. 2009). The Court finds that the ALJ has not done so, largely because she again focused

22
on Plaintiff’s vertigo without considering the other symptoms of Plaintiff’s Meniere’s disease.
23
24

In conducting her analysis, the ALJ first pointed to Dr. Schwartz’s December 2012

25 assessment, in which he found that Plaintiff had experienced “effectively no further vertigo
26 spells” since receiving a gentamicin injection the previous month. (Dkt. No. at 15, 18; Dkt. No.
ORDER REVERSING AND REMANDING FOR
FURTHER PROCEEDINGS
PAGE - 4

1

9-7 at 98.) Next, the ALJ found that in February 2013, Dr. Schwartz reported that Plaintiff had

2 experienced “significant improvement” after her November 2012 injection, however her “vertigo
3 episodes” had returned over the last few weeks. (Dkt. No. 9-2 at 19; Dkt No. 9-7 at 134.) Then,
4 the ALJ found that in September 2013, Dr. Schwartz reported that after Plaintiff received another
5 gentamicin injection in February 2013, “she had nearly 6 months of vertigo control.” (Dkt. No.
6

9-2 at 15; Dkt. No. 9-70 at 170.) In summarizing her findings, the ALJ concluded that “[b]ased

7
on this evidence of record, the claimant’s attacks of vertigo appear to have been infrequent and
8
9

well-controlled since her alleged onset date.” (Dkt. No. 9-2 at 15.) The ALJ therefore decided

10 that the April 2013 questionnaire, which asserted that Plaintiff suffered “daily” Meniere’s
11 attacks, was inconsistent with the record evidence that Plaintiff’s vertigo attacks were infrequent.
12 (Id.)
13
14

But even if Plaintiff was not experiencing daily vertigo attacks, she may have been
suffering from other symptoms of Meniere’s disease. In his April 2013 questionnaire, Dr.

15
16

Schwartz reported that Plaintiff suffered from a number of symptoms in connection with her

17 Meniere’s attacks, including “[f]atigue/exhaustion,” “[n]ausea/vomiting,” “[v]isual
1
18 disturbances,” and “falls.” (Dkt. No. 9-7 at 129.) The ALJ’s failure to consider how often

19 Plaintiff suffered Meniere’s attacks involving these and other symptoms was not harmless error,
20 because it may have caused her to inappropriately discount Dr. Schwartz’s questionnaire,
21

impacting her determination of Plaintiff’s RFC.

22
//
23
24
25

1

Dr. Schwartz also responded affirmatively to a question about whether Plaintiff had a “[h]istory
26 of frequent attacks of balance disturbance.” (Id. at 128.) Notably, the question did not specify
“vertigo.”
ORDER REVERSING AND REMANDING FOR
FURTHER PROCEEDINGS
PAGE - 5

3.

1

Objection Three: The R&R fails to identify specific, clear and

convincing reasons to doubt Plaintiff’s credibility

2

In making her RFC determination, the ALJ found that Plaintiff’s statements “concerning

3

4 the intensity, persistence and limiting effects of [her] symptoms” were not credible. (Dkt. No. 95 2 at 16.) The ALJ discounted Plaintiff’s credibility on three grounds: (1) her hearing testimony
6
was inconsistent with her medical records “as to the nature and severity of her vertigo attacks”;
7
(2) her reluctance to pursue recommended physical therapy; and (3) her receipt of unemployment
8
benefits during a period in which she claims to have been disabled. (Dkt. No. 19 at 16–18.)
9
An ALJ can reject a claimant’s testimony about the severity of her symptoms “only by

10

11 offering specific, clear and convincing reasons for doing so.” Lingenfelter v. Astrue, 504 F.3d
12 1028, 1036 (9th Cir. 2007). Plaintiff argues that each of the ALJ’s reasons for discounting
13

Plaintiff’s credibility failed to meet this standard.

14
a.

Hearing testimony inconsistent with medical records

15
In her disability report, Plaintiff asserted that she was “bedridden a minimum of four days

16

17 per week from pure exhaustion and dizziness,” was unable to care for herself, and could not
18 “stand and/or walk without assistance.” (Dkt. No. 9-6 at 66.) She also asserted that the
19 gentamicin injections “cause migraine headaches [and] vomiting,” and that she needs to
20 “physically hold my head to help with the severe dizziness and spinning I experience.” (Id.) At
21

the hearing, she stated that treatment has not helped with her balance problems. (Dkt. No. 9-2 at

22
52.)
23
24

In making her adverse credibility finding, the ALJ did not address Plaintiff’s stated

25 dizziness, nausea, exhaustion, or difficulty balancing. Instead, she focused exclusively on
26 Plaintiff’s vertigo, finding that “claimant’s medical records are notably inconsistent with her
ORDER REVERSING AND REMANDING FOR
FURTHER PROCEEDINGS
PAGE - 6

1

hearing testimony as to the nature and severity of her vertigo attacks, thus detracting from her

2 credibility on the subject.” (Dkt. No. 9-2 at 16.)
3

Once again, the ALJ appears to have assumed that Plaintiff’s only pertinent symptom was

4 vertigo, and that the alleviation of Plaintiff’s vertigo resulted in the alleviation of her other
5 symptoms as well. The ALJ does not, however, explain how she came to this implicit
6

conclusion. And in fact, the treatment record confirms that Plaintiff continued to suffer from

7
other symptoms even after the gentamicin injections reduced her vertigo. (Dkt. No. 9-7 at 133–
8
9

34, 147, 162, 179). The ALJ therefore lacked a “specific, clear and convincing” reason for

10 dismissing Plaintiff’s statements as to the severity of her symptoms.
11
12
13
14

b.

Reluctance to pursue physical therapy

The ALJ found that Plaintiff’s reluctance to pursue physical therapy despite her doctor’s
recommendation also detracted from her credibility.
“[I]n assessing a claimant's credibility, the ALJ may properly rely on unexplained or

15
16

inadequately explained failure to seek treatment or to follow a prescribed course of treatment.”

17 Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (internal quotation marks omitted). The
18 ALJ found that Plaintiff inadequately explained her decision not to attend physical therapy. But
19 in reaching this conclusion, the ALJ again appears to have overemphasized Plaintiff’s vertigo
20 symptoms, finding that Plaintiff “would presumably pursue this therapy as instructed if her
21

attacks of vertigo were preventing her from returning to gainful activity as she testified.” (Dkt.

22
No. 9-2 at 17.) As the Court has explained above, this was not a specific, clear and convincing
23
24
25
26

analysis, because it effectively ignored Plaintiff’s other symptoms.
c.

Receipt of Unemployment Benefits

The ALJ also found that Plaintiff’s receipt of unemployment benefits detracted from her

ORDER REVERSING AND REMANDING FOR
FURTHER PROCEEDINGS
PAGE - 7

1

credibility. (Dkt. No. 9-2 at 18.) The ALJ’s rationale for this conclusion appears to be that “in

2 applying for unemployment benefits, the claimant was required to attest that she was ‘ready,
3 able, and willing[] immediately to accept any suitable work which may be offered’ to her.” (Dkt.
4 No. 9-2 at 17) (internal citation omitted).
5
6

This is not a specific, clear and convincing reason for an adverse credibility finding,
because as the ALJ acknowledged, Plaintiff’s “application for unemployment benefits does not

7
preclude the receipt of SSI.” (Dkt. No. 9-2 at 17.) Supreme Court precedent confirms that this is
8
9

true, and suggests that Plaintiff’s willingness to accept “suitable work” could have included

10 “accommodated work.” See Cleveland, Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 803
11 (1999) (“[W]hen the SSA determines whether an individual is disabled for SSDI purposes, it
12 does not take the possibility of ‘reasonable accommodation’ into account, nor need an applicant
13
14

refer to the possibility of reasonable accommodation when she applies for SSDI.”).
The ALJ has therefore failed to properly establish why Plaintiff’s unemployment benefits

15
16

application detracts from her credibility.

17

4.

18

reasons offered by the ALJ for rejecting the lay witness evidence

19

Objection Four: The R&R fails to identify any specific, germane

Plaintiff’s sister, son, daughter, and spouse all gave statements as to Plaintiff’s

20 functioning. (Dkt. No. 9-2 at 18.) The ALJ accorded limited weight to these statements. (Id.)
21

“[T]he ALJ may expressly disregard lay testimony if the ALJ gives reasons germane to each

22
witness for doing so.” Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010)
23
24
25

(internal quotation marks omitted).
Plaintiff’s family members described Plaintiff as unable to care for herself or engage in

26 most activities of daily life. (Dkt. No. 9-2 at 18.) The ALJ discounted this testimony as
ORDER REVERSING AND REMANDING FOR
FURTHER PROCEEDINGS
PAGE - 8

1

inconsistent with Plaintiff’s medical records, which, she found, documented the “prolonged

2 cessation of vertigo and a possible return to work following treatment.” (Dkt. No. 9-2 at 18.)
But Plaintiff’s family members largely focused on symptoms other than vertigo. (Dkt.

3

4 No. 9-2 at 68–80; Dkt. No. 9-6 at 28–35, 82–85, 87–90.) And the Court has already pointed out
5 that many of these symptoms persisted even after Plaintiff began receiving gentamicin injections
6

for her vertigo. Therefore, the alleviation of Plaintiff’s vertigo was not a “germane” reason to

7
discount all of the lay witness testimony.
8
The ALJ also discounted this testimony as inconsistent with Plaintiff’s application for

9

10 unemployment benefits. But as the Court has already explained, the ALJ was insufficiently clear
11 as to the inconsistency between Plaintiff’s pursuit of unemployment benefits and her disability
12 claim.
13

5.

Objection Five: The R&R fails to give appropriate weight to Appeals

14
Council evidence regarding Plaintiff’s surgery
15
In December 2013, Dr. Schwartz performed surgery on Plaintiff for her Meniere’s

16

17 disease. (Dkt. No. 9-7 at 175.) Plaintiff submitted evidence of this procedure to the Appeals
18 Council. (Dkt. No. 18 at 8.) “[W]hen the Appeals Council considers new evidence in deciding
19 whether to review a decision of the ALJ, that evidence becomes part of the administrative record,
20 which the district court must consider when reviewing the Commissioner's final decision for
21

substantial evidence.” Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir.

22
2012)
23
24

The Plaintiff’s willingness to undergo surgery—and Dr. Schwartz’s willingness to

25 perform this surgery—calls into question two of the ALJ’s conclusions. First, that Plaintiff’s
26 symptoms were not as severe as she claimed. And second, that Dr. Schwartz’s April 2013
ORDER REVERSING AND REMANDING FOR
FURTHER PROCEEDINGS
PAGE - 9

1

questionnaire overstated Plaintiff’s symptoms. On remand, the ALJ is directed to reconsider her

2 conclusions in light of Plaintiff’s surgery.
3 III.

CONCLUSION

4

For the foregoing reasons, the Court REVERSES the Commissioner’s decision and

5
6

REMANDS for further administrative proceedings.
DATED this 2nd day of May 2016.

7
8
9
10

A

11
12
13

John C. Coughenour
UNITED STATES DISTRICT JUDGE

14
15
16
17
18
19
20
21
22
23
24
25
26
ORDER REVERSING AND REMANDING FOR
FURTHER PROCEEDINGS
PAGE - 10