Opinion
Civ. No. 3:17-cv-01404-CL
07-09-2019
JULIE ANN U., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
FINDINGS AND RECOMMENDATION
Plaintiff Julie Ann U. seeks judicial review of the final decision of the Commissioner of the Social Security Administrations denying her applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. For the reasons below, the Court recommends that Commissioner's decision should be REVERSED and REMANDED for further proceedings.
BACKGROUND
The following recitation constitutes a summary of the pertinent evidence within the Administrative Record and does not reflect any independent finding of fact by the Court. Citations to "Tr." refer to the page(s) indicated in the official transcript of the administrative record filed herein as Docket No. 13.
Plaintiff was born in 1966. Tr. 79, 253. Her education includes one year of college. Tr. 273. Plaintiff suffers from several musculoskeletal and autoimmune diseases, with the following physical diagnoses and symptoms: fibromyalgia, with chronic widespread pain, tenderness, muscle aches, weakness, tightness, and decreased range of motion. Tr. 598-599, 607, 715, 802. She experiences chronic headaches and frequent migraines, with associated neck pain. Tr. 81, 715. She has lumbar and cervical degenerative disc disease and sciatica, with back and neck pain, reduced range of motion, and radiating pain down her left arm and left leg. Tr. 626, 788-802, 805-811. She has been treated for rheumatoid arthritis of her joints, with hand, neck, shoulder, hip, and knee pain; fingers locking; muscle spasms; and fatigue/malaise Tr. 626-629, 638, 802. Plaintiff's mental health symptoms include the following: depression, with loss of interest in activities, sleep disturbance, decreased energy, and difficulty concentrating or thinking, generalized persistent anxiety with motor tension and apprehensive expectation, and possible somatization. Tr. 816, 47.
On March 18, 2013, Plaintiff protectively filed applications for DIB and SSI, alleging disability beginning October 1, 2012, with a date last insured (DLI) of December 31, 2017 for DIB purposes. Tr. 15, 253-254. The applications were denied initially and upon reconsideration, and a hearing was requested. Tr. 164-184. Hearings were held before Administrative Law Judge (ALJ) S. Andrew Grace in Portland, Oregon on July 15, 2015, and February 26, 2016. Tr. 36-109. The ALJ found Plaintiff not disabled. Tr. 28. Plaintiff filed a request for review by the Appeals Council, which was denied. Tr. 1-6. The ALJ's ruling thus became the final decision of the Commissioner, and Plaintiff now seeks review of that decision.
DISABILITY ANALYSIS
A claimant is disabled if he or she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A). "Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act." Keyser v. Comm'r. Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks the following series of questions:
1. Is the claimant performing "substantial gainful activity"? 20 C.F.R. §§ 404.1520(a)(4)(i); 416.920(a)(4)(i). This activity is work involving significant mental or physical duties done or intended to be done for pay or profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing such work, she is not disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520(a)(4)(i); 416.920(a)(4)(f). If the claimant is not performing substantial gainful activity, the analysis proceeds to step two.
2. Is the claimant's impairment "severe" under the Commissioner's regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). Unless expected to result in death, an impairment is "severe" if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1521(a); 416.921(a). This impairment must have lasted or must be expected to last for a continuous period of at least 12 months. 20 C.F.R. §§ 404.1509; 416.909. If the claimant does not have a severe impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis proceeds to step three.
3. Does the claimant's severe impairment "meet or equal" one or more of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii);
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of the listed impairments, the analysis proceeds to the "residual functional capacity" ("RFC") assessment.
a. The ALJ must evaluate medical and other relevant evidence to assess and determine the claimant's RFC. This is an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations imposed by his or her impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c); 416.920(e); 416.945(b)-(c). After the ALJ determines the claimant's RFC, the analysis proceeds to step four.
See also Bustamante v. Massanari, 262 F.3d 949, 954-55 (9th Cir. 2001).
4. Can the claimant perform his or her "past relevant work" with this RFC assessment? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant cannot perform his or her past relevant work, the analysis proceeds to step five.
5. Considering the claimant's RFC and age, education, and work experience, is the claimant able to make an adjustment to other work that exists in significant numbers in the national economy? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v); 404.1560(c); 416.960(c). If the claimant cannot perform such work, he or she is disabled. Id.
The claimant bears the burden of proof at steps one through four. Id. at 954. The Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the Commissioner must show that the claimant can perform other work that exists in significant numbers in the national economy, "taking into consideration the claimant's residual functional capacity, age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999) (internal citations omitted); see also 20 C.F.R. §§ 404.1566; 416.966 (describing "work which exists in the national economy"). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled, Bustamante, 262 F.3d at 954-55; Tackett, 180 F.3d at 1099.
THE ALJ'S FINDINGS
Applying the five-step analysis, the ALJ made the following findings:
1. Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2017, and has not engaged in substantial gainful activity since the alleged onset date of October 1, 2012. Tr. 17.
2. Plaintiff has the following severe impairments: fibromyalgia, degenerative disc disease, rheumatoid arthritis, and chronic fatigue. Tr. 17.
3. Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments. Tr. 21.
a. Plaintiff has the RFC to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant must be permitted to change position from sit/stand or stand/sit every thirty minutes at the work station, which will result in standing four hours and sitting four hours; never climb ladders, ropes, scaffolds; occasionally climb ramps/stairs, stoop, kneel, and crouch; never crawl; should avoid concentrated exposure to extreme temperatures, vibrations, and pulmonary irritants; only occasional overhead reaching bilaterally; and occasional handle/finger bilaterally. Tr. 22.
4. Plaintiff is unable to perform any past relevant work. Tr. 27.
5. Considering Plaintiff's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that the claimant can perform, including counter clerk and furniture rental clerk. Tr. 28-29.
Consequently, the ALJ concluded Plaintiff was not disabled as defined by the Social Security Act. Tr. 29.
STANDARD OF REVIEW
The reviewing court must affirm the Commissioner's decision if it is based on the proper legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). "'Substantial evidence' means 'more than a mere scintilla but less than a preponderance,' or more clearly stated, 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). In reviewing the Commissioner's alleged errors, this Court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
Where the evidence before the ALJ is subject to more than one rational interpretation, the Commissioner's conclusion must be upheld. Batson, 359 F.3d at 1198 (citing Andrews, 53 F.3d at 1041). "However, a reviewing court must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock, 879 F.2d at 501). Additionally, a reviewing court "cannot affirm the [Commissioner's] decision on a ground that the [Administration] did not invoke in making its decision." Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citations omitted). Finally, a court may not reverse an ALJ's decision on account of an error that is harmless. Id. at 1055-56. "[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination." Shinseki v. Sanders, 556 U.S. 396, 409 (2009).
Even where findings are supported by substantial evidence, "the decision should be set aside if the proper legal standards were not applied in weighing the evidence and making the decision." Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42 U.S.C. § 405(g), the reviewing court has the power to enter, upon the pleadings and transcript record, a judgment affirming, modifying, or reversing the decision of the Commissioner, with or without remanding the case for a rehearing.
DISCUSSION
Plaintiff argues the ALJ erred by 1) improperly evaluating the medical opinion evidence; 2) rejecting Plaintiff's impairments as non-severe at step two; 3) failing to find that Plaintiff's impairments meet or equal a Listing at Step Three; 4) improperly evaluating subjective symptom testimony; 5) improperly evaluating lay witness statements; and 6) failing to conduct a proper analysis at Step 5. The Court finds that the ALJ erred in three of the six ways: improperly evaluating the medical opinion evidence, improperly evaluating subjective symptom testimony, and improperly evaluating lay witness statements.
I. The ALJ failed to properly evaluate the medical evidence.
As discussed specifically below, the ALJ failed to properly credit the opinion of Plaintiff's treating physician and improperly discounted a portion of the examining physician. On remand, the ALJ should re-evaluate all of the medical evidence in the record as a whole. Plaintiff's treating physician should be credited as true, and the other medical evidence should be given proper weight in light of that credit.
a. The ALJ failed to properly credit the opinion of Dr. Williams, a treating physician; Dr. Williams' opinion should be credited as true.
In social security cases, there are three categories of medical opinions: those that come from treating, examining, and non-examining doctors. Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2008). "Generally, a treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a reviewing physician's." Id. at 1202. Opinions supported by explanations are given more authority than those that are not, as are opinions of specialists directly relating to their specialties. Id. If the treating physician's opinion is supported by medically acceptable clinical findings and is consistent with substantial evidence in the record, controlling weight is given. Id. Treating providers are "employed to cure and [have] a greater opportunity to know and observe the patient as an individual." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). Nonetheless, an ALJ may discount a treating doctor's uncontroverted opinion by providing "clear and convincing" reasons supported by the record. Holohan, 246 F.3d at 1202 (citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). If the treating doctor's opinion is in dispute, the ALJ must provide "specific and legitimate reasons" for rejecting the opinion. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). When the ALJ fails to provide adequate reasons for rejecting a treating physician's opinion, that opinion is credited as a matter of law. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (citing Hammock v. Bowen, 879 F.2d 498 (9th Cir. 1989)).
Ryan Elizabeth Williams, DO, had been Plaintiff's treating physician and primary care provider for two and a half years when she completed a function form report in January, 2016. Tr. 26, 812-814. In the report, along with certain other limitations, Dr. Williams stated that Plaintiff needs to be able to change positions at will every 10-15 minutes as needed; she is unable to lift and carry more than five pounds frequently due to the severity of her symptoms; and she cannot sit comfortably for two hours. Dr. Williams specifically disagreed with examining physician Dr. Ellison's assessment regarding Plaintiff's ability to lift heavier weight and sit for two hours. She explained that "based on the severity of her symptoms," Plaintiff could not lift as much or sit for as long as prescribed by Dr. Ellison. Tr. 814. The ALJ gave little weight to this opinion "because the extreme severity is not supported by the objective evidence or the treatment records." Tr. 26. The ALJ explained:
The doctor had not documented any objective findings, such as decreased strength, to explain why the claimant would be unable to lift/carry five pounds. The claimant's complaints of pain are considered in allowing her to change position, but the frequency opined by the doctor is not consistent with any objective findings by the doctor and inconsistent with the claimant's own self-report she could drive for well over an hour and she would go to her children's sporting events.Tr. 26.
The ALJ's explanation is inadequate because the opinion is supported by medically acceptable clinical findings and is consistent with substantial evidence in the record. First, there are clinical findings that support Dr. Williams' conclusions. Dr. Williams' function form report noted that Plaintiff suffers from chronic joint and muscle pain, sciatic pain, depression, chronic headaches, memory loss, and swelling in hands. Tr. 812. The ALJ acknowledged these impairments by finding several of them "severe" in his decision. Tr. 21. Further, Dr. Williams' treatment note dated November 18, 2015, indicates a showing of inflammatory arthritis of the joints of her hand, worsening neck and back pain radiating down her left arm and leg, and MRI findings, which show facet arthropathy of spine, midline low back pain with sciatica. Tr. 792. Treatment notes also indicate the need to rest to prevent worsening inflammation due to fibromyalgia. Tr. 792-794. These clinical findings are sufficient to support a treating physician's medical opinion that Plaintiff's symptoms are severe enough to warrant restrictive limitations. Controlling weight should have been given to Dr. Williams' opinion because it was consistent with substantial evidence in the record.
The ALJ did not give clear and convincing reasons for directly contradicting this opinion. Contrary to the ALJ's explanation, there are substantial facts in the record to support the severity of Plaintiff's symptoms, including the clinical findings described above, Plaintiff's testimony and Plaintiff's husband's testimony (both addressed below), as well as a long medical history of worsening symptoms over time.
Additionally, the ALJ's declaration regarding the Plaintiff's "own self-report she could drive for well over an hour and she would go to her children's sporting events" is overstated. First, the only citation in the record to Plaintiff's "self-report" regarding her ability to drive is contained in the notes of examining physician Dr. Ellison. Tr. 768. Dr. Ellison noted that, "She can sit and drive for about 90 minutes." Id. He did not specify whether she had to take breaks during this period of 90 minutes, nor whether she could perform such activity on a regular, sustained basis. Finally, the ALJ did not ask Plaintiff at the hearing regarding her alleged ability to drive for 90 minutes, nor did he ask her to clarify this discrepancy in the record. Second, Plaintiff's testimony regarding her children's sporting events included:
Some games they get rides to and some games I have taken them to. I don't get to go to a lot of them just because I'm hypersensitive to just the temperature and the stress and the noise. I can't sit on bleachers. I have to bring a chair. You know, I get to go to some, but my husband goes to a lot of them without me and the ones that he can't, sometimes the kids just have to catch rides with other people or the coach.ALJ Hearing Tr. 19. The Court finds that these are not clear and convincing reasons to discount the severity of Plaintiff's symptoms as evaluated by her treating physician.
To the extent that Dr. Ellison's opinion regarding Plaintiff's limitations or her ability to drive for 90 minutes might undermine Dr. Williams' assessment, the Court finds that the reasons given by ALJ to completely contradict Dr. Williams' opinion are not specific and legitimate, for the same reasons above.
The opinion of Dr. Williams is supported by medically acceptable clinical findings and is consistent with substantial evidence in the record. Therefore, controlling weight should have been given to her opinion. The ALJ did not give clear and convincing reasons, nor even specific and legitimate reasons, for discrediting her opinion. The opinion should be credited as true.
b. The ALJ did not err by discounting the opinion of Dr. Harter.
Medical experts are highly qualified physicians who are also experts in Social Security disability evaluation and the ALJ must consider their findings when evaluating a claimant's case. 20 CFR 404.1527(f)(2)(i). In evaluating medical expert opinion, the ALJ is required to consider the physician's medical specialty and expertise in Social Security rules, supporting explanation provided by the physician, consistency with the medical record and other factors relevant to the weight of opinions. 20 C.F.R. § 404.1527(f)(2)(iii).
An opinion that a Plaintiff is disabled (or that she meets or equals a Listing) is not considered a medical opinion under the Act. However, the ALJ must nonetheless consider the opinion along with "all of the medical findings and other evidence that support a medical source's statement that you are disabled." No special significance is given to opinions on the issue reserved to the Commissioner. 20 C.F.R. §§ 404.1527(d), 416.927(d).
Dr. Harter, a Social Security medical expert, testified at the February 26, 2016 ALJ hearing, stating that Plaintiff's conditions equal Listing 12.07 Somatoform Disorders, as the record supports her claim of multifactorial pain problems for the last 25-30 years, which have not been relieved by treatment. Tr. 47-50. The ALJ rejected Dr. Harter's finding, stating; (1) no treating provider has diagnosed somatoform disorder; (2) Listing 12.07 requires physical symptoms for which there are no organic findings, while here the medical records support some of Plaintiff's complaints; and (3) there is no indication that Dr. Harter has any medical expertise in psychology. Tr. 19-20. The ALJ did not err in discounting this opinion.
First, the ALJ is correct that no treating provider has diagnosed somatoform disorder, although at least one other medical opinion noted that it was a possibility. See Tr. 770 (reviewing physician Dr. Ellison notes Plaintiff's "chronic anxiety, depression, and generalized pain and tenderness suggesting somatization"). Second, Dr. Harter agreed that there are some organic findings that support Plaintiff's subjective symptoms and testimony, but still maintained that she met or equaled the Listing. Finally, Dr. Harter, not only does not have medical expertise in psychology, he did not give any direct specifications for why or how Plaintiff would meet or equal the specific listing. See Sullivan v. Zebley, 493 U.S. 521, 531 (1990) ("[F]or a claimant to qualify for benefits by showing that his unlisted impairment, or combination of impairments, is medically equivalent to a listed impairment, he must present medical findings equal in severity to all the criteria for the one most similar listed impairment."). Therefore, the ALJ did not err in discounting this portion of Dr. Harter's testimony, particularly as the meeting or equaling of a listing is an opinion reserved for the Commissioner.
Listing 12.07 for Somatic Symptom and Related disorders requires: Medical documentation of one or more of the following: Symptoms of altered voluntary motor or sensory function that are not better explained by another medical or mental disorder; One or more somatic symptoms that are distressing, with excessive thoughts, feelings, or behaviors related to the symptoms; or Preoccupation with having or acquiring a serious illness without significant symptoms present. AND Extreme limitation of one, or marked limitation of two, of the following areas of mental functioning (see 12.00F): Understand, remember, or apply information (see 12.00E1); Interact with others (see 12.00E2); Concentrate, persist, or maintain pace (see 12.00E3); Adapt or manage oneself (see 12.00E4).
c. The ALJ failed to properly credit the opinion of Dr. Ellison.
"The ALJ must explicitly reject medical opinions, or set forth specific, legitimate reasons for crediting one medical opinion over another." Garrison, 759 F.3d at 1012 (citing Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996)). An ALJ errs by rejecting or assigning minimal weight to a medical opinion "while doing nothing more than ignoring it, asserting without explanation that another medical opinion is more persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis" for the ALJ's conclusion. Garrison, 759 F.3d at 1013.
On October 10, 2015, Dr. Ellison evaluated Plaintiff and reviewed her medical records, making the following findings regarding her abilities: she can occasionally lift up to 20 pounds and frequently lift up to 10 pounds; occasionally carry up to 10 pounds; six hours sitting, two hours standing, and one hour walking in an eight hour day; occasional reaching, handling, fingering, feeling, pushing, and pulling bilaterally; occasional stairs, balancing, kneeling, and crouching; and no ladders, stooping, or crawling. Tr. 771-774. Dr. Ellison also found that Plaintiff was tender in all of the fibromyalgia tender points, as well as in her muscles generally and her forehead. Tr. 770. He diagnosed her with "chronic anxiety, depression, and generalized pain and tenderness suggesting somatization." Id.
The ALJ rejected a portion of Dr. Ellison's opinion, stating that he gave great weight to the opinion, but, "my residual functional capacity includes four hours stand/walk as this is more consistent with the medical records and the limited objective evidence." Tr. 26. This explanation is vague and conclusory, not specific and legitimate, as required to discredit the opinion of an examining physician. The only evidence in the record contradictory to Dr. Ellison's opinion is Dr. Williams' opinion that Plaintiff would need even more restrictive limitations. The ALJ arbitrarily substituted his own opinion for that of both a treating and an examining physician. On remand, Dr. Ellison's medical opinion should be re-evaluated in light of the opinion of Dr. Williams, and the ALJ should not arbitrarily discount any other portion of the testimony.
d. The ALJ properly evaluated the opinion of Plaintiff's mental health provider Ann Wehrli, LPC.
Examining therapists are defined as other medical sources. 20 C.F.R. §§ 401.1513(d)(1), 416.913(d)(1). The ALJ is required to provide germane reasons for rejecting other medical source evidence. Id.; Social Security Ruling (SSR) 06-03p, available at 2006 WL 2329939 (considering opinions and other evidence from sources who are not "acceptable medical sources" in disability claims); Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (requiring ALJs to give germane reasons for rejecting other medical source evidence). Duration of treatment relationship and frequency and nature of contact relevant in weighing opinion. Benton v. Barnhart, 331 F.3d 1030, 1038-39 (9th Cir.2003).
On February 15, 2016, Ms. Wehrli found that Plaintiff has anxiety and depression, with moderate limitations in social functioning and concentration, persistence, and pace. Tr. 816- 817. The ALJ gave Ms. Wehrli's findings little weight because she had only recently begun treating the claimant and "is not an acceptable medical source." Tr. 20. The Court finds the first reason to be germane, but not the second.
The Commissioner does not defend the ALJ's reasoning as to Ms. Wehrli being an unacceptable medical source, and the Court finds this reasoning to be inadequate. However, the duration of treatment is relevant, particularly because Ms. Wehrli noted in the margins of her report that she did not have enough information to complete several of the questions on the form. The report is incomplete and does not provide a thorough opinion of functioning. Therefore the ALJ did not err by giving it little weight.
II. The ALJ properly rejected Plaintiff's severe impairments at Step Two.
In social security cases, the ALJ must determine whether an impairment is a medically determinable impairment. An impairment is medically determinable when it results from "anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques. A physical or mental impairment must be established by medical evidence of signs, symptoms, and laboratory findings," not just reported symptoms. 20 C.F.R §§ 404.1521, 416.921. Once an impairment is deemed to be medically determinable, then the ALJ must determine if the impairment is a severe or not severe impairment. An impairment (or combination of impairments) is considered severe when it "significantly limits [a person's] physical or mental ability to do basic work activities." 20 C.F.R. §§ 404.150(c), 416.920(c). Conversely, an impairment (or combination of impairments) is considered not severe if it "does not significantly limit [a person's] physical or mental abilities to do basic work activities." 20 C.F.R §§ 404.1521(a), 416.921(a). Moreover, the severe impairment must have lasted or be expected to last at least twelve months. 20 C.F.R. §§ 404.1509, 416.909. If an impairment is determined to be severe, then the sequential analysis proceeds and the ALJ must continue to consider all the claimant's limitations, regardless of whether they are severe. SSR 96-9p, 1996 WL 374184 (July 2, 1996).
The ALJ found that Plaintiff suffers from the severe impairments of fibromyalgia, degenerative disc disease, rheumatoid arthritis, and chronic fatigue. Tr. 17. Plaintiff claims that the ALJ failed to find the following additional severe impairments: "chronic headaches/migraines (Tr. 715); lumbosacral radiculitis (Tr. 579); chronic interstial cystitis, acute pancreatitis, and history of appendectomy, hysterectomy, and cholecystectomy, with abdominal pain (Tr. 704-706); depression (Tr. 626, 770, 812, 815); anxiety (Tr. 770, 815); and somatoform disorder (Tr. 47, 770)." Plf. Opening Brief. While the Court finds that all of these impairments are medically determinable, the ALJ specifically found that they do not limit Plaintiff's physical or mental ability to do basic work activities or were not expected to last at least twelve months. Therefore, the ALJ did not err by considering these impairments not severe.
The ALJ noted that the record showed that prior to Plaintiff's alleged onset date, she received injections for reported migraines. Tr. 18, 492. Plaintiff was diagnosed with headaches by her rheumatologist in 2012; she was advised to follow-up with her primary care provider for this condition and consider a consultation with a neurologist. Tr. 18, 463. The ALJ noted that Plaintiff did seek care for her headaches, and she reported in 2013 that her headaches improved with gabapentin. Tr. 18, 587. She continued to report some improvement in headaches with medication. Tr. 18, 635, 673-74. However, there was no evidence Plaintiff was referred to a neurologist and she reported later in 2014 that her symptoms had been better over the past year. Tr. 18. Plaintiff had increased symptoms for a few weeks and was started on a new medication. Tr. 18, 645. This helped to relieve her symptoms, and her doctor seemed otherwise unconcerned with her ongoing mild symptoms. Tr. 18, 635. Therefore, the ALJ reasonably concluded that even if he found headaches to be an impairment rather than a symptom, the overall evidence suggested this condition was largely stable and the only recommendation was conservative treatment with medication. Tr. 18.
Plaintiff fails to allege any vocational limitations related to her lumbosacral radiculitis, history of appendectomy, hysterectomy, and cholecystectomy and, therefore, fails to meet her burden of proof to show these were severe impairments.
The ALJ also noted Plaintiff had a history of depression and anxiety, and she treated these conditions with medication. Tr. 19. The ALJ further noted that the overall evidence showed minimal complaints of symptoms, minimal findings on exam, and no ongoing counseling or psychiatric care and, thus, that the objective medical evidence suggested these conditions were largely medically manageable. Tr. 19. The Court finds this to be somewhat accurate, although she did recently seek therapy as documented by Ann Wehrli, LPC, as discussed above. Despite this, the ALJ did not err in finding Plaintiff's mental impairments non-severe throughout the period of alleged disability.
III. The ALJ did not err in determining that Plaintiff's impairments do not meet or equal a listing at Step Three.
At step three, the ALJ is tasked with determining if one or more of a claimant's severe impairments "meets or equals" one of the presumptively disabling impairments listed in the SSA regulations. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). "If you have an impairment which meets the duration requirement and is listed in [20 C.F.R. Part. 404, Subpart P,] [A]ppendix 1 or is equal to a listed impairment, the SSA will find you disabled without considering your age, education, and work experience." 20 C.F.R. §§ 404.1520(d), 416.920(d). "[F]or a claimant to qualify for benefits by showing that his unlisted impairment, or combination of impairments, is medically equivalent to a listed impairment, he must present medical findings equal in severity to all the criteria for the one most similar listed impairment." Sullivan v. Zebley, 493 U.S. 521, 531 (1990); see also Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2014). The duration requirement applies to medical equivalency.
As discussed above, the ALJ did not err by discounting Dr. Harter's testimony that Plaintiff meets or equals Listing 12.07. Dr. Harter did not present, and Plaintiff has not presented, medical findings equal in severity to all the criteria for Listing 12.07 (see Footnote 3, supra). The ALJ did not err in this regard.
IV. The ALJ failed to provide clear and convincing reasons to discount Plaintiff's subjective symptom testimony.
When deciding whether to accept the subjective symptom testimony of a claimant, the ALJ must perform a two-stage analysis. In the first stage, the claimant must produce objective medical evidence of one or more impairments which could reasonably be expected to produce some degree of symptom. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The claimant is not required to show that the impairment could reasonably be expected to cause the severity of the symptom, but only to show that it could reasonably have caused some degree of the symptom. Id.
In the second stage of the analysis, the ALJ must consider the intensity, persistence, and limiting effects of the alleged symptoms based on the entire record. SSR 16-3p at *7-8. The ALJ will consider the "[l]ocation, duration, frequency, and intensity of pain or other symptoms" reported by the claimant, any medical sources, and any non-medical sources. Id. The ALJ's decision must contain "specific reasons for the weight given to the individual's symptoms, be consistent with and support by the evidence, and be clearly articulated so the individual and any subsequent reviewer can assess how the adjudicator evaluated the individual's symptoms." Id. Additionally, the evidence upon which the ALJ relies must be substantial. See Reddick, 157 F.3d at 724; Holohan v. Massinari, 246 F.3d 1195, 1208 (9th Cir. 2001); Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991). The ALJ must also "state specifically which symptom testimony" is being rejected and what facts lead to that conclusion." Smolen v. Charter, 80 F.3d 1273, 1284 (9th Cir. 2009) (citing Dodrill, 12 F.3d at 918). In rejecting claimant's testimony about the severity of her symptoms, the ALJ must give "specific, clear and convincing reasons for doing so." Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (quoting Lingenfelter v. Astrue, 504 F.3d 1029, 1036 (9th Cir. 2007)).
Here, the ALJ found Plaintiff's medically determinable impairments could reasonably be expected to cause some of the alleged symptoms: "I accept that the medical evidence shows some basis for the claimant's alleged pain. However, the objective medical evidence is not consistent with the degree of limitation alleged." Tr. 28. First, the ALJ points to the Plaintiff's history of continuing to work after she made reports of pain, and her filing for unemployment benefits. Second, the ALJ notes that multidisciplinary treatment was advised, including physical therapy, mental health treatment, chronic pain management, and sleep hygiene, but that Plaintiff has not completed such treatment. Third, the ALJ found that Plaintiff's activities were inconsistent with a disabling condition, namely, "caring for an infant grandchild a couple of hours per week and attending her children's baseball and volleyball games." Tr. 28.
The Court finds the ALJ's reasons are not clear and convincing. First, the Ninth Circuit has addressed the issue of a plaintiff seeking unemployment benefits in a similar circumstance. It held that, while receipt of unemployment benefits can undermine a claimant's alleged inability to work fulltime, the record in that case did not establish "whether [the plaintiff] held himself out as available for full-time or part-time work. Only the former is inconsistent with his disability allegations." Carmickle, 533 F.3d at 1161-62 (citing Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir.1988)). "Thus, such basis for the ALJ's credibility finding is not supported by substantial evidence." Id. Similarly, here, the record shows that Plaintiff testified to having left a part-time job where she worked four hours per day because of memory and concentration deficits, as well as severe migraine headaches. Tr. 80-81. She then applied for several jobs, looking for a position that could accommodate her limitations; however, she was unable to find a job she felt like she was able to do. Tr. 81. Thus, the record clearly shows that she did not hold herself out as available for full-time work, and her testimony cannot be discounted on such basis.
Second, while Plaintiff may have not completed the multidisciplinary treatment approach to the ALJ's satisfaction, it is clear that she has continued to seek treatment for her various medically determinable impairments, including fibromyalgia, pain, degenerative disc disease, chronic fatigue and depressive disorder.
Third, Plaintiff's testimony regarding her activities of daily living are not inconsistent with a disabling condition. Plaintiff testified that some days she can do laundry, but her family also helps. Her family helps prepare many of the meals, and they help with chores and shopping. Tr. 20. Plaintiff can sometimes make a quick dinner, she can drive independently to her medical appointments, and she takes care of her own personal care. Id. She testified that she cancels social plans a lot as she does not know how she will feel. Id. She talks and texts with friends and goes out to lunch with a friend once or twice a month. Tr. 21. In evaluating Plaintiff's subjective symptoms in particular, the ALJ noted that "in 2013 she had three children living at home, two under age eighteen. She also cared for an infant grandchild a couple hours a week." Tr. 24. The ALJ did not show that these activities meet the threshold for transferable work skills, and the Court does not consider them to be so transferable. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007).
The ALJ additionally speculated that, "it is unlikely an infant would be left in the care of someone who was physical or mentally unable to care for the child." Tr. 29. This comment ignores the general reality of many working parents who are unable to find suitable childcare and the particular reality of the Plaintiff in this case, who testified that she has a lot of help at home from her husband and her teenage children. Regardless of these realities, caring for an infant "a couple of hours per week" is not evidence of an ability to work full time.
Therefore, the ALJ failed to give specific, clear and convincing reasons for rejecting Plaintiff's testimony about the severity of her symptoms. This testimony should be re-evaluated, particularly in light of the medical opinion of her treating physician.
V. The ALJ erred in evaluating the lay witness testimony of Plaintiff's husband.
Lay witness testimony as to a plaintiff's symptoms is competent evidence which the ALJ must consider. Tobeler v. Colvin, 749 F.3d 830, 832-34 (9th Cir. 2014), Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993); see also 20 C.F.R. § 404.1513(d) (providing that lay witness testimony may be introduced "to show the severity of [the claimant's] impairment(s) and how it affects [his] ability to work"). The Ninth Circuit has held that "friends and family members in a position to observe a claimant's symptoms and daily activities are competent to testify as to [a claimant's] condition" and can "make independent observations of the claimant's pain and other symptoms." Dodrill, 12 F.3d at 918-19 (9th Cir. 1993). If the ALJ disregards such testimony, the ALJ "must give reasons that are germane to each witness." Id.; see also Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (finding inconsistency with medical evidence to be a germane reason to discredit a lay witness's statements); Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (finding lay testimony that it is substantially similar to a claimant's validly discredited allegations to be one germane reason for discrediting the lay testimony).
Shawn U., the claimant's husband, provided a third-party function report on June 26, 2013. Tr. 305-312. Therein, he opined the following regarding Plaintiff: limited ability to work due to exhaustion, severe migraines resulting from tightness in the muscles of her neck and shoulders that can require a trip to the ER, difficulty concentration, and forgetfulness (Tr. 305); limited chores, with assistance from himself and their teenage children (Tr. 306); interrupted sleep (Tr. 306); inability to make full meals due to symptoms (Tr. 307); the need for numerous breaks when doing house work (Tr. 307); inability to do yard work (Tr. 307); decline in mental sharpness and math skills, preventing her from handling bills and balancing check book like she used to (Tr. 308); limitations in numerous exertional and nonexertional work abilities (Tr. 310); difficulty handling stress, causing her to become overwhelmed easily (Tr. 311); and he has witnessed a substantial decline over the years from the person she used to be (Tr. 312).
The ALJ stated that he considered the evidence provided by Plaintiff's husband but gave it little weight because it was based on the claimant's subjective reports of pain and anxiety and inconsistent with the objective evidence in the record. Tr. 27. However, much of Mr. U.'s testimony appears to be based on his own observations of his wife's activities and her decline in health over the last twenty years. The ALJ's rejections of this testimony is not germane because it fails to credit his independent observations. For example, his statement that she has trouble concentrating and is very forgetful is relevant evidence of her cognitive limitations that may well not be documented by the medical evidence but is nonetheless valid. Failing to credit the independent observations of lay witnesses is not a harmless error because Mr. U's observations support Plaintiff's testimony about the severity and functional effects of her symptoms. This testimony should be re-evaluated in light of Plaintiff's testimony and the medical opinion of Dr. Williams.
VI. Step Five analysis will need to be revised on remand.
The Court has determined that the ALJ erred in three ways. On remand, the ALJ should reconsider the medical evidence, Plaintiff's subjective symptom testimony, and lay witness testimony. Therefore, the ALJ will need to determine a new RFC and conduct a new Step 5 analysis. For that reason, Plaintiff's claim of error at Step 5 is moot and need not be considered at this time.
REMAND
A district court may "revers[e] the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing," Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (citing 42 U.S.C. § 405(g)), but "the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation," id. (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985)). Ninth Circuit case law precludes a district court from remanding a case for an award of benefits unless certain prerequisites are met. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir.2014) (discussing Garrison v. Colvin, 759 F.3d 995 (9th Cir.2014)). The district court must first determine that the ALJ made a legal error, such as failing to provide legally sufficient reasons for rejecting evidence. Id. If the court finds such an error, it must next review the record as a whole and determine whether it is fully developed, is free from conflicts and ambiguities, and "all essential factual issues have been resolved." Treichler, 775 F.3d at 1101. In conducting this review, the district court must consider whether there are "inconsistencies between [the claimant's] testimony and the medical evidence in the record," id. at 1105, or whether the government has pointed to evidence in the record "that the ALJ overlooked" and explained "how that evidence casts into serious doubt" the claimant's claim to be disabled, Burrell, 775 F.3d at 1141. Unless the district court concludes that further administrative proceedings would serve no useful purpose, it may not remand with a direction to provide benefits. Id.; Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015), as amended (Feb. 5, 2016).
In this case, remand to the agency for additional investigation and explanation is appropriate. The ALJ should be instructed to properly credit Plaintiff's treating physician and properly evaluate the other medical source in light of that credit. Plaintiff's subjective symptom testimony should be properly evaluated and the severity of her symptoms should not be discredited without clear and convincing reasons. Lay witness testimony should be considered, if credible, even if there is not medical evidence in the record to support it.
RECOMMENDATION
Based on the foregoing, and pursuant to sentences four and six of 42 U.S.C. § 405(g), the decision of the Commissioner should be REVERSED and the matter should be REMANDED for further proceedings.
This Report and Recommendation will be referred to a district judge. Objections, if any, are due no later than fourteen (14) days after the date this recommendation is entered. If objections are filed, any response is due within fourteen (14) days after the date the objections are filed. See FED. R. CIV. P. 72, 6. Parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
DATED this 9 day of July, 2019.
/s/_________
MARK D. CLARKE
United States Magistrate Judge