Corona v. Colvin

Filing 19

ORDER re 3 Complaint filed by Susanna Corona -- by Judge J Richard Creatura. The Court ORDERS that this matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner for further consideration consistent with this order. (SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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SUSANNA CORONA,

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Plaintiff,

CASE NO. 3:15-cv-05629 JRC
ORDER ON PLAINTIFF’S
COMPLAINT

v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,

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Defendant.
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This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and

18 Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S.
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Magistrate Judge and Consent Form, Dkt. 5; Consent to Proceed Before a United States
Magistrate Judge, Dkt. 6). This matter has been fully briefed (see Dkt. 11, 15, 18).

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After considering and reviewing the record, the Court concludes the ALJ erred in
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evaluating the medical evidence, but the error was harmless. However, the Court finds
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that the ALJ did commit harmful error when she discounted plaintiff’s testimony
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ORDER ON PLAINTIFF’S COMPLAINT - 1

1 regarding her symptoms and limitations. Had the ALJ properly considered plaintiff’s
2 testimony, the residual functional capacity (“RFC”) may have included additional
3 limitations. The ALJ also erred when evaluating the lay witness testimony.
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Because the ALJ committed harmful errors, this matter is reversed pursuant to
sentence four of 42 U.S.C. § 405(g) and remanded to the Acting Commissioner for

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further consideration consistent with this order.
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BACKGROUND
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Plaintiff, SUSANNA CORONA, was born in 1962 and was 49 years old on the
amended alleged date of disability onset of December 6, 2011 (see AR. 22, 43, 208-14,

11 215-23). Plaintiff graduated from high school (AR. 55). Plaintiff has work experience as
12 a cashier/checker, stocker and housekeeping (AR. 264-76). Plaintiff last worked in a
13 grocery store until her psychiatrist told her to take a month off and then two months off
14 because of her depression and anxiety (AR. 45-47).
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According to the ALJ, plaintiff has at least the severe impairments of “depression,

16 anxiety and fibromyalgia (20 CFR 404.1520(c) and 416.920(c))” (AR. 24).
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At the time of the hearing, plaintiff was living in an apartment with her daughter
and two grandchildren (AR. 54).

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PROCEDURAL HISTORY
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Plaintiff’s applications for disability insurance benefits (“DIB”) pursuant to 42
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U.S.C. § 423 (Title II) and Supplemental Security Income (“SSI”) benefits pursuant to 42
U.S.C. § 1382(a) (Title XVI) of the Social Security Act were denied initially and

24 following reconsideration (see AR. 150-53, 154-57, 160-62, 163-64). Plaintiff’s

ORDER ON PLAINTIFF’S COMPLAINT - 2

1 requested hearing was held before Administrative Law Judge Jo Hoenninger (“the ALJ”)
2 on December 18, 2013 (see AR. 37-89). On January 17, 2014, the ALJ issued a written
3 decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social
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Security Act (see AR. 19-36).
In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) Whether or

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not the ALJ properly evaluated the medical evidence; (2) Whether or not the ALJ
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properly evaluated plaintiff’s testimony; (3) Whether or not the ALJ properly evaluated
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the lay evidence; (4) Whether or not the ALJ properly assessed plaintiff’s residual
functional capacity; (5) Whether or not the ALJ erred by basing her step five finding on a

11 residual functional capacity assessment that did not include all of plaintiff’s limitations
12 and that was inconsistent with the DOT; and (6) Whether or not the new evidence
13 submitted to the Appeals Council shows that the ALJ’s decision was not supported by
14 substantial evidence and/or that it was based on legal error (see Dkt. 11, p. 2).
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STANDARD OF REVIEW

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Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s

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denial of social security benefits if the ALJ’s findings are based on legal error or not
supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d

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1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.
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1999)).
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ORDER ON PLAINTIFF’S COMPLAINT - 3

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DISCUSSION

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(1)

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Plaintiff argues the ALJ erred in her treatment of the medical evidence of Peter

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Whether or not the ALJ properly evaluated the medical evidence.

Carey, Ph.D., Steven Goldsmith, M.D., and Danielle Buchanan, CSWA, QMHP (Dkt. 11,
pp. 3-7). Plaintiff also includes a “catch all” argument that the ALJ erred in her treatment

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of all of her other treating and examining physicians (see id.).
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The ALJ must provide “clear and convincing” reasons for rejecting the
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uncontradicted opinion of either a treating or examining physician or psychologist.
Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (citing Embrey v. Bowen, 849 F.2d

11 418, 422 (9th Cir. 1988); Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)). But when
12 a treating or examining physician’s opinion is contradicted, that opinion can be rejected
13 “for specific and legitimate reasons that are supported by substantial evidence in the
14 record.” Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th
15 Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). The ALJ can
16 accomplish this by “setting out a detailed and thorough summary of the facts and
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conflicting clinical evidence, stating his interpretation thereof, and making findings.”
Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes v. Bowen, 881

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F.2d 747, 751 (9th Cir. 1989)). The ALJ may not reject a brief, conclusory opinion from
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a treating physician if the opinion is consistent with the claimant’s testimony and with the
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doctor’s treatment notes. See Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014).
In addition, the ALJ must explain why her own interpretations, rather than those of

24 the doctors, are correct. Reddick, 157 F.3d at 725 (citing Embrey, 849 F.2d at 421-22).

ORDER ON PLAINTIFF’S COMPLAINT - 4

1 But, the Commissioner “may not reject ‘significant probative evidence’ without
2 explanation.” Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995) (quoting Vincent v.
3 Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) (quoting Cotter v. Harris, 642 F.2d 700,
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706-07 (3d Cir. 1981))). The “ALJ’s written decision must state reasons for disregarding
[such] evidence.” Flores, 49 F.3d at 571. For example, “an ALJ cannot in its decision

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totally ignore a treating doctor and his or her notes, without even mentioning them.”
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Marsh v. Colvin, 792 F.3d 1170, 1172-73 (9th Cir. 2015) (citing Garrison v. Colvin, 759
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F.3d 995, 1012 (9th Cir. 2014)).
(a) Yamhill County Mental Health
Plaintiff argues that the ALJ erred in failing to discuss significant probative

12 evidence of two medical providers at Yamhill County Mental Health: Steven Goldsmith,
13 M.D., and Danielle Buchanan, CSWA, QMHP (Dkt. 11, p. 6). Defendant argues that the
14 ALJ need not have discussed the opinions of Dr. Goldsmith and Ms. Buchannan because
15 neither provider opined that plaintiff has functional limitations (Dkt. 15, pp. 6-7). For the
16 reasons set forth below, the Court agrees in part.
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i.

Dr. Goldsmith

Plaintiff visited Yamhill County Mental Health from approximately August 2012

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through November 2012 (AR. 399-31). On October 15, 2012, Dr. Goldsmith conducted a
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psychiatric assessment on plaintiff (AR. 417-19). Dr. Goldsmith charted plaintiff’s
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history, including that she began having auditory hallucinations eight months before her
visit (AR. 417). Dr. Goldsmith conducted a mental status examination, observing that

24 plaintiff was “[a]lert and grossly oriented, agitatedly twisting hands; relatively open and

ORDER ON PLAINTIFF’S COMPLAINT - 5

1 cooperative, normal speech, depressed with weeping; logical and goal-directed
2 associations, … [and] future oriented” (AR. 418). Dr. Goldsmith diagnosed plaintiff with
3 bipolar disorder, and observed that “[t]he severity of her recent depression is of psychotic
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or near-psychotic proportions” (AR. 418). Dr. Goldsmith did not opine that plaintiff has
any functional limitations.

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The ALJ noted that plaintiff saw Dr. Goldsmith in October 2012 and he diagnosed
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her with bipolar disorder as well as alcohol abuse in remission (AR. 27). With respect to
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Dr. Goldsmith’s opinion, the ALJ stated in full:
Although Dr. Goldsmith diagnosed bipolar disorder, subsequent records
reflect only a diagnosis of depression. Diagnoses of depression and anxiety
occur more consistently throughout the record. Regardless of the precise
diagnoses, her mood disorder symptoms have been fully considered in
assessing the claimant’s residual functional capacity.

13 (AR. 28).
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Contrary to plaintiff’s assertion, the ALJ did discuss Dr. Goldsmith’s clinical

15 findings, including his diagnosis of bipolar disorder (see AR. 27-28). But, as an initial
16 matter, the Court cannot determine what weight the ALJ gave to Dr. Goldsmith’s
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opinion, if any. Moreover, it appears the ALJ dismissed Dr. Goldsmith’s diagnosis of
bipolar disorder because “subsequent records reflect only a diagnosis of depression” and
the record throughout reflects only diagnoses of depression (see AR. 28). While there

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may be differences in diagnoses, the ALJ fails to explain why another doctor’s
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observations and diagnoses are more credible than Dr. Goldsmith’s observations (see AR.
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28). Without any explanation whatsoever, the Court cannot determine if the ALJ’s
reasoning is specific and legitimate and supported by substantial evidence. See Garrison

ORDER ON PLAINTIFF’S COMPLAINT - 6

1 v. Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014) (an ALJ errs when he rejects a medical
2 opinion or assigns it little weight when asserting without explanation another medical
3 opinion is more persuasive). Thus, the ALJ erred in her treatment of Dr. Goldsmith’s
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opinion.
Nevertheless, the Ninth Circuit has “recognized that harmless error principles

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apply in the Social Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th
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Cir. 2012) (citing Stout v. Comm’r, Social Security Admin., 454 F.3d 1050, 1054 (9th
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Cir.2006) (collecting cases)). Recently the Ninth Circuit reaffirmed the explanation in
Stout that “ALJ errors in social security are harmless if they are ‘inconsequential to the

11 ultimate nondisability determination.’” Marsh, 792 F.3d at 1173 (citing Stout, 454 F.3d at
12 1055-56). In spite of the ALJ’s errors in discussing Dr. Goldsmith’s opinion, the Court
13 finds the error was harmless.
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Here, Dr. Goldsmith did not identify any functional limitations that would be

15 relevant to a disability determination. An ALJ need not discuss evidence that is neither
16 significant nor probative. See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th
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Cir.2003); Vincent, 739 F.2d at 1395. A doctor’s opinion devoid of any opined
limitations is not significant or probative. See, e.g., Hughes v. Colvin, No. C13-0143-

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MAT, 2013 WL 11319016, at *3 (W.D. Wash. Aug. 14, 2013), aff’d, 599 F. App’x 765
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(9th Cir. 2015) (citing Turner v. Comm’r of Social Sec. Admin., 613 F.3d 1217, 1223 (9th
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Cir. 2010) (explaining that where a doctor’s opinion does not assign any specific
limitations, an ALJ need not provide reasons for rejecting the opinion because none of

24 the conclusions were actually rejected)); see also Vincent, 739 F.3d at 1394-95. Plaintiff

ORDER ON PLAINTIFF’S COMPLAINT - 7

1 does not explain what limitations the ALJ failed to consider, nor does she explain how
2 the RFC failed to take into account Dr. Goldsmith’s treatment notes. See, e.g., Valentine
3 v. Comm’r of Social Sec. Admin., 574 F.3d 685, 692 n.2 (9th Cir. 2009) (the court
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rejected “any invitation to find that the ALJ failed to account for [the claimant’s] injuries
in some unspecified way” when the claimant failed to detail what limitations followed

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from the evidence beyond those already listed in the RFC). Indeed, the ALJ noted that
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she took into account Dr. Goldsmith’s opinion in formulating the RFC (see AR. 28).
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Because none of the information contained in Dr. Goldsmith’s evaluation identified
limitations or opinion related to plaintiff’s ability to work, the Court finds the ALJ’s error

11 in evaluating Dr. Goldsmith’s opinion was harmless.

ii.

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Danielle Buchanan, CSWA, QMHP

Plaintiff also attended therapy sessions with Danielle Buchanan, a licensed social

14 worker and mental health professional, at Yamhill County Mental Health in October and
15 November 2012 (see AR. 415-16, 423, 426-31). Ms. Buchanan charted notes related to
16 plaintiff’s therapy visits, including that plaintiff appeared “tearful” (AR. 416, 423, 427)
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and scared regarding her diagnosis of bipolar disorder (AR. 423). Ms. Buchanan did not
opine that plaintiff has any limitations regarding her ability to work (see AR. 415-16,

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423, 426-31).
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In addition to “acceptable medical sources,” that is, sources “who can provide
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evidence to establish an impairment,” 20 C.F.R. § 404.1513 (a), there are “other sources,”
such as friends and family members, who are defined as “other non-medical sources” and

24 “other sources” such as nurse practitioners, physician assistants, therapists and

ORDER ON PLAINTIFF’S COMPLAINT - 8

1 chiropractors, who are considered other medical sources, see 20 C.F.R. § 404.1513 (d).
2 See also Turner, 613 F.3d at 1223-24 (citations omitted). An ALJ may disregard opinion
3 evidence provided by both types of “other sources,” characterized by the Ninth Circuit as
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lay testimony, “if the ALJ ‘gives reasons germane to each witness for doing so.’” Turner,
613 F.3d at 1224 (quoting Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)); see also

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Van Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). This is because in
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determining whether or not “a claimant is disabled, an ALJ must consider lay witness
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testimony concerning a claimant’s ability to work.” Stout, 454 F.3d at 1053 (citing
Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993); 20 C.F.R. §§ 404.1513(d)(4) and

11 (e), 416.913(d)(4) and (e)).
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Although plaintiff is correct that the ALJ did not discuss Ms. Buchanan’s therapy

13 notes, the Court finds the ALJ did not err when she failed to discuss Ms. Buchanan’s
14 notes in her decision. While the ALJ must “make fairly detailed findings in support of
15 administrative decisions to permit courts to review those decisions intelligently,” the ALJ
16 “need not discuss all evidence presented.” Vincent, 739 F.2d at 1394-95. As noted above,
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the ALJ need not discuss evidence that is neither significant nor probative. See Howard,
341 F.3d at 1012. As the Commissioner argues, Ms. Buchanan’s treatment notes contain

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no functional limitations related to plaintiff’s ability to work, and an ALJ need only
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consider lay witness testimony “concerning a claimant’s ability to work.” Stout, 454 F.3d
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at 1053. Therefore, Ms. Buchanan’s treatment notes were not significant, probative
evidence that the ALJ was required to discuss, and the ALJ did not err.

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ORDER ON PLAINTIFF’S COMPLAINT - 9

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(b) Peter Carey, Ph.D.
Plaintiff also argues that the ALJ erred in her treatment of Peter Carey, Ph.D.

3 because: (1) the ALJ failed to fully develop the record regarding Dr. Carey’s treatment
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records, and (2) in light of new treatment records submitted to the Appeals Council, after
the ALJ issued her opinion, the ALJ’s treatment of Dr. Carey’s medical opinion is not

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supported by substantial evidence (Dkt. 11, pp. 3-4, 18-19).
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Dr. Carey treated plaintiff from December 2011 through February 2012 (see AR.
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479-88). At the time the ALJ issued her decision, the record related to Dr. Carey
consisted of (1) a December 6, 2011 letter from Dr. Carey, requesting that plaintiff’s

11 employer excuse her absence and noting that he recommends plaintiff apply for leave
12 under the Family Medical Leave Act (see AR. 479); and (2) an employer form Dr. Carey
13 completed for plaintiff (see AR. 480). On the form, Dr. Carey opined that plaintiff was
14 suffering from the following functional limitations: “poor concentration, panic attacks,
15 [and] not enough energy to stand on [her] feet for more than 60 min[utes]” (id.). Dr.
16 Carey also opined that plaintiff would need a leave of absence from one to three months
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and that she may need a shortened day for one to two months upon her return, which he
estimated would be in March 2012 (AR. 480).

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Based on these records, the ALJ stated:
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The medical evidence of record reflects the claimant was given a
recommendation for a brief leave of absence from work beginning
December 6, 2011 but there is no evidence of ongoing restrictions from
work. Peter F. Carey, Ph.D., wrote a letter requesting the claimant be
excused from work on December 6, 2011 as she was attending a doctor
appointment and was experiencing anxiety symptoms with panic attacks
and depression. On January 5, 2012, he reported she would need a leave of

ORDER ON PLAINTIFF’S COMPLAINT - 10

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absence of 1 to 3 months. It was expected she would be released to work in
March 2012. There is no evidence of any further evaluations, work excuses,
or work restrictions from Dr. Carey. The opinion of Dr. Carey is given
some weight. However, there is no evidence he extended any work
restrictions beyond March 2012.

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After the ALJ issued her decision, counsel for plaintiff submitted additional
treatment records from Dr. Carey to the Appeals Council, noting that the records “pertain

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to the period under adjudication but were not received until after the ALJ’s decision was
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in the decision writing process” (AR. 16-17). The Appeals Council made the additional
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evidence part of the record (AR. 14, 482-88). The new records contain Dr. Carey’s intake
assessment as well as treatment records from December 6, 2011 through February 13,

12 2012 (see AR. 482-88). Although Dr. Carey opined plaintiff suffers from depression and
13 anxiety (see AR. 487), the new records do not contain any opined functional limitations
14 related to plaintiff’s ability to engage in substantial gainful activity (see AR. 482-88).
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Plaintiff argues that these records demonstrate that (1) the ALJ failed in her duty

16 to develop the record, and (2) the ALJ’s treatment of Dr. Carey’s opinion is no longer
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supported by substantial evidence (see Dkt. 11, pp. 3-4, 18-19). For the reasons discussed
below, the Court agrees in part, but finds any error was harmless.
i.

Duty to Develop the Record

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Plaintiff argues the ALJ “violated the ALJ’s duty to fully and fairly develop the
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record” regarding Dr. Carey’s medical opinion because the ALJ did not obtain and
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review additional treatment records from Dr. Carey, which plaintiff submitted to the

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ORDER ON PLAINTIFF’S COMPLAINT - 11

1 Appeals Council after the ALJ issued her decision (see Dkt. 11, pp. 3-4; AR. 14, 16-17,
2 481-88).
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The ALJ “has an independent ‘duty to fully and fairly develop the record and to
assure that the claimant’s interests are considered.’” Tonapetyan v. Halter, 242 F.3d
1144, 1150 (9th Cir. 2001) (quoting Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir.

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1996) (quoting Brown v. Heckler, 713 F.2d 411, 443 (9th Cir. 1983))). The ALJ’s “duty
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exists even when the claimant is represented by counsel.” Brown, 713 F.2d at 443 (citing
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Driggins v. Harris, 657 F.2d 187, 188 (8th Cir. 1981)).
Plaintiff was represented by counsel at the hearing before the ALJ (see AR. 39).

11 At the hearing, counsel for plaintiff confirmed that she had had a chance to review the
12 records and that she had no objections (see AR. 39-41). At the hearing, the ALJ admitted
13 into evidence Dr. Carey’s December 2011 letter and the employer form completed by Dr.
14 Carey (see AR. 41-42), and council did not indicate that additional records were
15 forthcoming. Nevertheless, the Court agrees that the ambiguous evidence before the ALJ,
16 including the lack of treatment records supporting Dr. Carey’s opined limitations on the
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employer form as well as a letter asking the employer to excuse plaintiff from work,
triggered the ALJ’s duty to more fully develop the record and obtain additional evidence

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from Dr. Carey. Indeed, the ambiguity in the record is evident in the ALJ’s discussion of
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Dr. Carey’s medical opinion, wherein the ALJ states “[t]here is no evidence of any
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further evaluations, work excuses, or work restrictions from Dr. Carey” (AR. 27).
Clearly, Dr. Carey’s opinion that plaintiff was precluded from working is significant,

24 probative evidence the ALJ should have explored. In the absence of additional evidence

ORDER ON PLAINTIFF’S COMPLAINT - 12

1 or explanation, the ALJ should have obtained or attempted to obtain additional
2 documents from Dr. Carey to explore his opinion as to plaintiff’s limitations. Thus, the
3 ALJ erred in failing to fully develop the record.
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Nevertheless, as noted above, “harmless error principles apply in the Social
Security Act context.” Molina, 674 F.3d at 1115 (citations omitted). The Court finds the

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ALJ’s error to fully develop the record was harmless. As noted above, an ALJ need only
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discuss probative evidence, see Howard, 341 F.3d at 1012, and treatment records with no
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opined limitations as to a plaintiff’s ability to engage in substantial gainful activity are
not significant or probative. See Hughes, 2013 WL 11319016, at *3 (citing Turner, 613

11 F.3d at 1223. Dr. Carey’s additional records contain no new opined limitations not
12 already considered by the ALJ. Moreover, plaintiff stopped seeing Dr. Carey in February
13 2012, one month before the end of the disability period Dr. Carey opined plaintiff would
14 need to be off work (see AR. 480), which the ALJ did consider (see AR. 27). Thus,
15 although the ALJ violated her duty to fully develop the record, the error was harmless as
16 she considered and discussed all significant, probative evidence from Dr. Carey’s
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records.
ii.

Dr. Carey’s Medical Opinion In Light of New Evidence

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Plaintiff also argues that, in light of the new evidence submitted to the Appeals
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Council, the ALJ’s evaluation of Dr. Carey’s opinion is no longer supported by
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substantial evidence (Dkt. 11, pp. 18-19). “[W]hen the Appeals Council considers new
evidence in deciding whether to review a decision of the ALJ, that evidence becomes part

24 of the administrative record, which the district court must consider when reviewing the

ORDER ON PLAINTIFF’S COMPLAINT - 13

1 Commissioner’s final decision for substantial evidence.” Brewes v. Comm’r, Soc. Sec.
2 Admin., 682 F.3d 1157, 1163 (9th Cir.2012). Accordingly, the question before the Court
3 is whether, in light of the new evidence plaintiff submitted to the Appeals Council,
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substantial evidence supports the ALJ’s decision.
For the same reason the ALJ’s error in failing to fully develop the record was

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harmless, the new evidence does not change the ALJ’s evaluation of the record as a
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whole, and her treatment of Dr. Carey’s opinion is still supported by substantial evidence.
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The new records contain no new opined limitations other than those already incorporated
into the RFC and discussed by the ALJ (see AR. 27, 480-88). The ALJ gave Dr. Carey’s

11 opinion “some weight” and noted that there is no additional evidence of opined work
12 restrictions beyond March 2012. Instead of contradicting her opinion, the new evidence
13 submitted to the Appeals Council supports the ALJ’s conclusion. Thus, considering the
14 new evidence submitted to the Appeals Council, the ALJ’s opinion as to Dr. Carey
15 remains supported by substantial evidence.
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(c) Plaintiff’s Additional Argument Challenging All Medical Evidence
In addition to challenging the ALJ’s treatment of Dr. Goldsmith, Ms. Buchanan,
and Dr. Carey, plaintiff also summarizes several other medical opinions (see Dkt. 11, pp.

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3-7). With respect to these medical opinions, plaintiff does not assign specific error to the
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ALJ’s treatment of the opinions but rather provides a general assignment of error at the
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end of her discussion of the medical evidence that “[t]he ALJ errs by failing to
acknowledge that the medical findings from [plaintiff’s] treating and examining

24 physicians provide an objective evidentiary basis for [plaintiff’s] testimony about her

ORDER ON PLAINTIFF’S COMPLAINT - 14

1 symptoms and limitations” (Dkt. 11, p. 7). Plaintiff avers that “[t]his Court should hold
2 that the ALJ’s failure to properly evaluate all of the medical evidence is harmful error, as
3 a reasonable ALJ who properly evaluated the medical evidence could have reached a
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different disability determination” (Dkt. 11, p. 7).
Plaintiff essentially asks this Court—without specific assignments of error—to

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reweigh all evidence in the record and arrive at a different conclusion. But, without any
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claims or argument, the Court “cannot manufacture arguments” for plaintiff, and can only
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review issues argued with specificity in plaintiff’s opening brief. Indep. Towers of
Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (citation and quotation

11 omitted); see also Carmickle v. Comm’r of Social Sec. Admin., 533 F.3d 1155, 1161 n.2
12 (9th Cir. 2008) (“We do not address this finding because Carmickle failed to argue this
13 issue with any specificity in his briefing.”); see also Volkle v. Astrue, No. C11-188114 MJP-JPD, 2012 WL 2576335, at *3 n.2 (W.D. Wash. June 14, 2012), report and
15 recommendation adopted, No. C11-1881-MJP, 2012 WL 2573065 (W.D. Wash. July 2,
16 2012) (same). As a result, the Court will not reweigh all of the evidence in light of
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plaintiff’s lack of specific argument as to each medical opinion. Nonetheless, to the
extent plaintiff is arguing that the medical opinion evidence supports her testimony (see

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Dkt. 11, p. 7, arguing that the medical opinions “provide an objective evidentiary basis
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for [plaintiff’s] testimony”), the court addresses the ALJ’s evaluation of plaintiff’s
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testimony in section 2, infra. As discussed below, the ALJ committed harmful error in
her evaluation of plaintiff’s testimony and statements regarding her limitations. Thus,

24 upon remand, the ALJ shall reevaluate the medical opinion evidence anew.

ORDER ON PLAINTIFF’S COMPLAINT - 15

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(2)

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Plaintiff also argues the ALJ improperly evaluated her testimony regarding her

Whether or not the ALJ properly evaluated plaintiff’s testimony.

3 functional limitations (Dkt. 11, pp. 7-13). If an ALJ rejects the testimony of a claimant
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once an underlying impairment has been established, the ALJ must support the rejection
“by offering specific, clear and convincing reasons for doing so.” Smolen, 80 F.3d at

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1284 (citing Dodrill, 12 F.3d at 918); see also Burrell, 775 F.3d at 1137 (“There is no
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conflict in the caselaw, and we reject the government’s argument that Bunnell excised the
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“clear and convincing” requirement”); Reddick, 157 F.3d at 722 (citing Bunnell v.
Sullivan, 947 F.2d at 343, 346-47). As with all of the findings by the ALJ, the specific,

11 clear and convincing reasons also must be supported by substantial evidence in the record
12 as a whole. 42 U.S.C. § 405(g); see also Bayliss, 427 F.3d at 1214 n.1 (citing Tidwell,
13 161 F.3d at 601).
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The ALJ’s determinations regarding a claimant’s statements about limitations

15 “must be supported by specific, cogent reasons.” Reddick, 157 F.3d at 722 (citing
16 Bunnell, 947 F.2d at 343, 346-47). In evaluating a claimant’s allegations of limitations,
17
18

the ALJ cannot rely on general findings, but “‘must specifically identify what testimony
is credible and what evidence undermines the claimant’s complaints.’” Greger v.

19

Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (quoting Morgan v. Comm’r of Soc. Sec.
20

Admin., 169 F.3d 595, 599 (9th Cir. 1999)); Reddick, 157 F.3d at 722 (citations omitted);
21
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23

Smolen, 80 F.3d at 1284 (citation omitted). According to the Ninth Circuit, “we may not
take a general finding-an unspecified conflict between Claimant’s testimony about daily

24 activities and her reports to doctors-and comb the administrative record to find specific

ORDER ON PLAINTIFF’S COMPLAINT - 16

1 conflicts.” Burrell, 775 F.3d at 1138; see also Brown-Hunter v. Colvin, 806 F.3d 487,
2 494 (9th Cir. 2015) (“Because the ALJ failed to identify the testimony she found not
3 credible, she did not link that testimony to the particular parts of the record supporting
4
5

her non-credibility determination, [which] was legal error”).
The ALJ determined that plaintiff’s impairments “could reasonably be expected to

6

cause some of the alleged symptoms” but that her “statements concerning the intensity,
7

persistence, and limiting effects of these symptoms are not entirely credible” (AR. 27).
8
9
10

The ALJ discounted plaintiff’s testimony, noting that she “cancelled most of her
subsequent appointments” and “[h]er minimal and sporadic treatment undermines her

11 allegations of debilitating symptoms” (AR. 27). The ALJ also discounted plaintiff’s
12 complaints regarding her fibromyalgia, noting the “extent of her symptoms are not
13 supported in the treatment record” and that “[s]he has sought very little treatment for her
14 pain complaints” (AR. 28). Finally, the ALJ noted that plaintiff’s activities of daily living
15 undermine her credibility and that “[e]vidence suggests a more active lifestyle than
16 alleged and she was not entirely forthcoming in her testimony” (AR. 28). Plaintiff argues
17
18

that none of the reasons for discounting plaintiff’s credibility are clear, cogent, and
supported by substantial evidence. The Court agrees.

19

First, the ALJ discounted plaintiff’s testimony because she failed to seek treatment
20

for her mental impairments and cancelled several mental health appointments (see AR.
21
22
23

27-28). However, “the fact that claimant may be one of millions of people who did not
seek treatment for a mental disorder until late in the day is not a substantial basis on

24 which to conclude that [a physician’s] assessment of claimant’s condition is inaccurate.”

ORDER ON PLAINTIFF’S COMPLAINT - 17

1 Van Nguyen, 100 F.3d at 1465. “[I]t is common knowledge that depression is one of the
2 most underreported illnesses in the country because those afflicted often do not recognize
3 that their condition reflects a potentially serious mental illness.” Id. (citation omitted).
4
5

Moreover, an ALJ cannot draw adverse credibility inferences based on failure to
seek regular medical treatment without first considering the claimant’s explanations. SSR

6

96–7p, 1996 WL 374186, at *3 (July 2, 1996); see also Fair v. Bowen, 885 F.2d 597, 603
7

(9th Cir.1989). Plaintiff testified that she did not receive treatment because she could not
8
9
10

find a clinic, did not want to visit the emergency room for treatment, and did not want to
have increased medical bills (see AR. 74). Indeed, treatment providers noted that plaintiff

11 had difficulty seeking treatment for her mental health due to cultural barriers (see AR.
12 399) and another provider noted plaintiff had difficulty affording her medication (see AR.
13 441). The ALJ did not discuss plaintiff’s or medical professionals’ explanations for
14 plaintiff’s failure to seek treatment. Thus, discounting plaintiff’s testimony regarding her
15 symptoms and limitations because she did not seek treatment is not a clear and
16 convincing reason supported by substantial evidence.
17
18

Second, the ALJ discounted plaintiff’s testimony because of the lack of evidence
and treatment for fibromyalgia. The ALJ offers no citation to the record, instead relying

19

upon her disbelief of plaintiff’s symptom testimony regarding her fibromyalgia, which
20

the Ninth Circuit specifically prohibits. Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir.
21
22
23

2004). Fibromyalgia “is diagnosed entirely on the basis of patients’ reports of pain and
other symptoms.” Id. at 590. Thus, the ALJ erred by “‘effectively requir[ing] ‘objective’

24 evidence for a disease that eludes such measurement.’” Id. (quoting Green–Younger v.

ORDER ON PLAINTIFF’S COMPLAINT - 18

1 Barnhart, 335 F.3d 99, 108 (2d Cir. 2003) (reversing and remanding for an award of
2 benefits where the claimant was disabled by fibromyalgia)). Plaintiff’s treating provider
3 diagnosed her with fibromyalgia (see, e.g., AR. 448), and plaintiff testified about her
4
5

fibromyalgia symptoms (see AR. 58-59). Accordingly, as noted by the Ninth Circuit,
“[s]heer disbelief is no substitute for substantial evidence.” Benecke, 379 F.3d at 594.

6

Further, as noted above, after a claimant produces medical evidence of an underlying
7

impairment, the ALJ may not discredit the claimant’s testimony merely because the
8
9
10

claimant’s allegations of pain and symptoms are unsupported by objective evidence.
Bunnell, 947 F.2d at 343. Thus, the ALJ’s second reason for discounting plaintiff’s

11 testimony is neither supported by substantial evidence nor a clear and convincing reason
12 for discounting plaintiff’s testimony.
13

Third, the ALJ discounted plaintiff’s testimony based on her activities of daily

14 living. Regarding activities of daily living, the Ninth Circuit repeatedly has “asserted that
15 the mere fact that a plaintiff has carried on certain daily activities . . . . does not in any
16 way detract from her credibility as to her overall disability.” Orn v. Astrue, 495 F.3d 625,
17
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639 (9th Cir. 2007) (quoting Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)).
The Ninth Circuit specified “the two grounds for using daily activities to form the basis

19

of an adverse credibility determination: (1) whether or not they contradict the claimant’s
20

other testimony and (2) whether or not the activities of daily living meet “the threshold
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22
23

for transferable work skills.” Orn, 495 F.3d at 639 (citing Fair, 885 F.2d at 603). As
stated by the Ninth Circuit, the ALJ “must make ‘specific findings relating to the daily

24 activities’ and their transferability to conclude that a claimant’s daily activities warrant an

ORDER ON PLAINTIFF’S COMPLAINT - 19

1 adverse determination regarding if a claimant’s statements should be credited. Orn, 495
2 F.3d at 639 (quoting Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)).
3
4
5
6
7
8
9
10
11
12

Regarding plaintiff’s activities of daily living, the ALJ stated:
The claimant’s allegations that she spends 80 percent of her time in her
room and is debilitated by depression, anxiety and pain are not credible.
Evidence suggests a more active lifestyle than alleged and she was not
entirely forthcoming in her testimony. When asked what she does during
the day, she initially stated she watches TV or just sits, but then
acknowledged watching her grandson. When asked if she was babysitting
her grandchildren, she responded “no” but then stated she keeps an eye on
him after he gets off the bus. The Cooperative Disability Investigations
Unit conducted an interview in December 2012. During the interview, the
claimant tended to her grandson. She reported going to a casino 2 months
prior.
(AR. 28-29).
Here, the ALJ offered no citations to the record to support her assertions that

13 plaintiff’s activities of daily living undermine her credibility or are inconsistent with her
14 limitations. Plaintiff testified that she suffers from near-constant pain, that she is
15 depressed, and that she spends most of her day watching television and spends about 80%
16 of her time in her room (AR. 58,64-65, 73). Plaintiff also testified that she does not
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19

babysit her grandchildren, but she does “keep an eye on them” when they get off the
school bus (AR. 64-65). As described, plaintiff’s activities do not contradict her other
testimony or assertions. See Fair, 885 F.2d at 603. As noted above, “disability claimants

20

should not be penalized for attempting to lead normal lives in the face of their
21

limitations.” Reddick, 157 F.3d at 722. The ALJ has only pointed to sporadic and
22
23
24

punctuated activities by the plaintiff—none of which contradict plaintiff’s testimony
regarding her limitations—which should not penalize plaintiff for attempting to lead a

ORDER ON PLAINTIFF’S COMPLAINT - 20

1 normal life in the face of her limitations. Id. Moreover, the ALJ failed to make specific
2 findings relating to plaintiff’s activities as applicable to workplace activities. Plainly, the
3 ALJ’s findings regarding plaintiff’s daily activities were minimal and she failed to
4
5

conduct the necessary transferability analysis. Thus, the Court agrees that none of the
reasons offered by the ALJ for discounting plaintiff’s testimony are clear and convincing,

6

cogent, or supported by substantial evidence.
7

As discussed above, the Court concludes that the ALJ failed to provide clear
8
9
10

convincing reasons for failing to credit fully plaintiff’s allegations of her limitations. The
Court also concludes that this error is not harmless. Here, had the ALJ credited fully

11 plaintiff’s allegations, the RFC determination would have been very different. For
12 example, plaintiff alleged limitations related to her ability to sit, stand, and walk (see AR.
13 69-72), while the ALJ’s RFC finding includes the “capacity to perform light work” (AR.
14 26; see also AR. 24 (citing 20 C.F.R. § 404.1567(b) (“a job is in this [light] category
15 when it requires a good deal of walking or standing, or when it involves sitting most of
16 the time ....”). Similarly, the ALJ improperly rejected limitations in plaintiff’s testimony
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18

regarding her mental impairments in forming the RFC. Thus, the ALJ’s rejection of
plaintiff’s testimony regarding her mental impairments was not harmless as the Court

19

cannot conclude with confidence “that no reasonable ALJ, when fully crediting the
20

testimony, could have reached a different disability determination.” See Marsh, 792 F.3d
21
22

at 1173 (citing Stout, 454 F.3d at 1055-56).

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ORDER ON PLAINTIFF’S COMPLAINT - 21

1

(3)

2

Here, plaintiff also complains that the ALJ improperly discounted the testimony of

Whether or not the ALJ properly evaluated the lay evidence.

3 lay witnesses, including her daughter, Denise Rodriguez, and her friend, Raedeane Shier
4
5

(Dkt. 11, 13-16).
The Ninth Circuit has characterized lay witness testimony as “competent

6

evidence,” noting that an ALJ may not discredit “lay testimony as not supported by
7

medical evidence in the record.” Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009)
8
9
10

(citing Smolen, 80 F.3d at 1289). Similar to the rationale that an ALJ may not discredit a
plaintiff’s testimony as not supported by objective medical evidence once evidence

11 demonstrating an impairment has been provided, Bunnell, 947 F.2d at 343, 346-47
12 (citation omitted), but may discredit a plaintiff’s testimony when it contradicts evidence
13 in the medical record, see Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (citing
14 Allen v. Heckler, 749 F.3d 577, 579 (9th Cir. 1984)), an ALJ may discredit lay testimony
15 if it conflicts with medical evidence, even though it cannot be rejected as unsupported by
16 the medical evidence. See Lewis, 236 F.3d at 511 (An ALJ may discount lay testimony
17
18

that “conflicts with medical evidence”) (citing Vincent, 739 F.2d at 1395; Bayliss, 427
F.3d 1214, 1218 (“Inconsistency with medical evidence” is a germane reason for

19

discrediting lay testimony) (citing Lewis, 236 F.3d at 511); see also Wobbe v. Colvin,
20

2013 WL 4026820, at *8 n.4 (D. Or. Aug. 6, 2013), aff’d, 589 F. App’x 384 (9th Cir.
21
22
23

2015) (Bruce “stands for the proposition that an ALJ cannot discount lay testimony
regarding a claimant’s symptoms solely because it is unsupported by the medical

24 evidence in the record; it does not hold inconsistency with the medical evidence is not a

ORDER ON PLAINTIFF’S COMPLAINT - 22

1 germane reason to reject lay testimony”) (citing Bruce, 557 F.3d at 1116) (emphasis in
2 original)
3
4
5

As an initial matter, the ALJ rejected the opinions of Ms. Rodriguez and Ms.
Shier, in part, because of the lack of objective evidence and treatment records (see AR.
28). The ALJ’s reliance on medical records and lack of objective evidence is legal error:

6

if these were legitimate reasons to discount lay testimony from a family member or
7

friend, such evidence always would be discarded on such bases. Relevant federal
8
9
10

regulations, social security rulings and Ninth Circuit case law make it clear that even lay
evidence from friends and family members without any medical expertise is “competent

11 evidence,” which cannot be discredited “as not supported by medical evidence in the
12 record.” Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009) (citing Smolen, 80 F.3d at
13 1289). Thus, lack of evidentiary support is not a germane reason for rejecting lay witness
14 opinions.
15

In addition, the ALJ appears to determine that neither lay opinion is “credible”

16 because the opinions are based on plaintiff’s statements and allegations of her limitations
17
18

(see AR. 28). As the Court has already instructed the ALJ to re-evaluate plaintiff’s
testimony and statements following remand, the ALJ shall also re-evaluate the lay

19

witness evidence.
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22
23
24

ORDER ON PLAINTIFF’S COMPLAINT - 23

1
2
3
4
5

(4)

Whether or not the ALJ properly assessed plaintiff’s RFC and erred
by basing her step five finding on a residual functional capacity
assessment that did not include all of plaintiff’s limitations and that
was inconsistent with the DOT.

As discussed in section 2, supra, had the ALJ properly weighed plaintiff’s
testimony, the RFC and hypothetical questions posed to the vocational expert may have

6 included additional limitations. On remand, the ALJ shall re-evaluate the RFC and Step
7 Five findings, if necessary.
8

CONCLUSION

9

Based on these reasons and the relevant record, the Court ORDERS that this

10 matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. §
11
12

405(g) to the Acting Commissioner for further consideration consistent with this order.
JUDGMENT should be for and the case should be closed.

13

Dated this 20th day of July, 2016.
14
15

A

16

J. Richard Creatura
United States Magistrate Judge

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ORDER ON PLAINTIFF’S COMPLAINT - 24