Opinion
6:23-cv-00032-AR
05-09-2024
MICHELLE G., Plaintiff, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant.
FINDINGS AND RECOMMENDATION
JEFF ARMISTEAD, UNITED STATES MAGISTRATE JUDGE
In this judicial review of the Commissioner's final decision denying Social Security benefits, Michelle G. (last name omitted for privacy) challenges the Administrative Law Judge's evaluation of her subjective symptom testimony, the medical opinion of Jesse D. Coleman, D.O., and the ALJ's step-five finding. (Pl.'s Br. at 1-2, ECF No. 16.) As explained below, the Commissioner's decision should be reversed and remanded.
This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).
ALJ'S DECISION
In denying plaintiff's application for Title XVI Supplemental Security Income (SSI), the ALJ followed the five-step sequential evaluation process. The ALJ determined that plaintiff had severe psychological impairments (PTSD; and bipolar II disorder) and severe physical impairments (obesity; cannabinoid hyperemesis syndrome (CHS); diabetes mellitus; fibromyalgia; and irritable bowel syndrome). (Tr. 15.) Plaintiff reported an inability to work because of stomach issues where she “cannot trust [her] stomach to process food and leave[s] [her] in extreme pain causing ER visits,” her anxiety, and difficulty going out because of depression and PTSD. (Tr. 44-46, 300, 303, 306.)
To determine a claimant's disability, the ALJ must apply a five-step evaluation. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If the ALJ finds that a claimant is either disabled or not disabled at any step, the ALJ does not continue to the next step. Id.; see also Parra v. Astrue, 481 F.3d 742, 746-47 (9th Cir. 2007) (discussing the five-step evaluation in detail).
Cannabinoid hyperemesis syndrome (CHS) is a condition in which a patient experiences cyclical nausea, vomiting, and abdominal pain after using cannabis. https://www.ncbi.nlm.nih.gov/books/NBK549915/ (last visited April 30, 2024).
As for the RFC, the ALJ found that plaintiff could perform medium work with the following additional limitations:
[S]he is to avoid concentrated exposure to hazards. She can persist at simple, routine, repetitive tasks. She can make simple work-related decisions and perform work with few if any changes in the workplace, and no assembly-line pace work. The [plaintiff] can have occasional public and coworker contact.(Tr. 17.) At step four, with that RFC, the ALJ found plaintiff is unable to perform any past relevant work. Considering plaintiff's age, education, work experience, and RFC, the ALJ determined at step five that jobs exist in significant numbers in the national economy that she could perform, including the representative occupations of laundry worker I, cleaner (industrial), and laborer (stores). (Tr. 22.)
As noted in White v. Kijakazi, 44 F.4th 828, 835 (9th Cir. 2022), the SSA has been working on a transition to a new Occupational Information System since 2008. The transition has not yet occurred, and the Ninth Circuit has encouraged the SSA, along with its sister circuits, “to make the transition to a system that more accurately reflects available jobs in the current economy.” Id.
The district court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020). Substantial evidence is “more than a mere scintilla” and is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (quotation and citation omitted). To determine whether substantial evidence exists, the court must weigh all the evidence, whether it supports or detracts from the Commissioner's decision. Garrison v.Colvin, 759 F.3d 995, 1009 (9th Cir. 2014).
DISCUSSION
A. Subjective Symptom Testimony
To determine whether a claimant's testimony about subjective pain or symptoms is credible, an ALJ must perform two stages of analysis. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017); 20 C.F.R. § 416.929. The first stage is a threshold test in which the claimant must produce objective medical evidence of an underlying impairment that could reasonably be expected to produce the symptoms alleged. Treichler v. Comm'r Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the second stage, absent affirmative evidence that the claimant is malingering, the ALJ must provide clear and convincing reasons for discounting the claimant's testimony about the severity of her symptoms. Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The ALJ must make findings that are specific enough to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015). Factors the ALJ may consider when making those credibility determinations include the objective medical evidence, the claimant's treatment history, the claimant's daily activities, and inconsistencies in testimony. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2013); Tommasetti, 533 F.3d at 1039.
At plaintiff's hearing and in function reports, she stated that she cannot work because of her gastrointestinal issues, anxiety, and difficulty leaving her home because of depression and PTSD. (Tr. 44-46, 300, 303, 306.) She testified that she cannot work because “[she] can't keep a weekly schedule with my stomach like it is. [She] can't guarantee from one day to the next that [she's] able to go out and do anything.” (Tr. 40-41.) She also said that “[she] gets pain in the upper left quadrant that's debilitating and leaves [her] unable to do anything. Mentally, [she] ha[s] a hard time leaving the house to go out anywhere[.]” (Tr. 41.) Going to the grocery store, plaintiff testified, is sometimes a “two or three day thing just to be able to go” because she does not want to deal with people or leave home. (Tr. 41, 289, 293, 295.) Plaintiff also reminds the court that she has visited the emergency room (ER) 46 times over the relevant period. (Pl.'s Reply Br. at 2., ECF No. 21.)
The ALJ discounted plaintiff's symptom testimony because: (1) she made inconsistent statements about her abdominal and gastrointestinal pain; (2) her mental health symptoms and fibromyalgia pain were inconsistent with evidence showing improvement and stability with treatment, and (3) her allegations were inconsistent with her daily activities. (Tr. 18-19.) Plaintiff challenges each of the ALJ's reasons.
1. Inconsistent Statements About Abdominal Pain
The ALJ made the following findings about plaintiff's abdominal pain:
Concerning gastrointestinal issues, she has a history of irritable bowel syndrome and was diagnosed with cannabinoid hyperemesis syndrome during the period at issue. Gastric emptying studies show a slight delay. She claimed to have pancreatitis, though this was never seen on imaging. Multiple CT scans were unremarkable for etiologies of complaint, showing only mild colitis a couple of times. Several times [plaintiff] attributed abdominal pain to smoking cigarettes. [Plaintiff] also acknowledged that diet modification alleviated symptoms. These comments show she is able to manage symptoms. [Plaintiff] asserted that cannabis use was not the cause of her gastrointestinal problems as the symptoms persisted when she stopped use. However, she provided conflicting information about the period of abstinence, first stating it was at least two weeks, then about a month, then two months, and later that it was for three months. It is also inconsistent that she claims to have trialed abstinence, but then stated that it would be difficult to stop. Multiple sources advised her that it was, and she was often told to stop use. There were times where she had several emergency department visits within a month, but she has also gone months without. The typical course was giving the claimant IV fluids, antiemetics, some type of pain medication, and at times benzodiazepines, after which she would be discharged in good condition.(Id. (internal citations omitted).)
Plaintiff argues that the ALJ failed to identify specific, clear and convincing reasons to discount her severe abdominal pain that resulted in 46 ER visits between November 2019 and May 2021. She asserts that her abdominal pain, nausea, and vomiting cause about two ER visits per month, plus two more days of illness, and that four absences per month renders her disabled. (See Tr. 50 (Vocational Expert testifying that more than two absences per month eliminates competitive employment).) In plaintiff's view, the ALJ did not find that she was malingering, drug-seeking, or that she was not suffering real symptoms of her CHS and that the ALJ rejected other sources of her abdominal issues, such as IBS, pancreatitis, and colitis. (Pl.'s Br. at 10, Reply at 5.) By attributing her abdominal pain and many ER visits solely to her marijuana use, plaintiff contends, the ALJ implicitly found her drug use material without following the proper drug addiction and alcohol (DAA) analysis required under SSR 13-2p. (Pl.'s Br. at 11.) Under plaintiff's theory, the ALJ committed harmful legal error.
As plaintiff highlights, she has been seen in the ER 46 times apparently due to CHS, possibly triggering application of the DAA. See SSR 13-2p, 2013 WL 621538, at *10 (“multiple emergency department admissions due to the effects of substance(s) use”). One of plaintiff's treating mental health providers, Ashley Hoeck Anderson, D.O., repeatedly described plaintiff as “positive” for substance abuse (Tr. 812-14, 1064-70, 1072-75, 1115) and stated that her chronic marijuana use was likely exacerbating her nausea, depression, and anxiety (Tr. 812-14). And multiple ER records upon which the ALJ relies reflect a cannabis abuse diagnosis, that plaintiff's CHS is caused by her continued marijuana abuse, that she was advised to abstain, and that she refused to make changes. (Tr. 1526-33 (12/5/2020), Tr. 1860, 1871-74 (5/25/2021), Tr. 2113 (8/11/2021), Tr. 2149, 2163 (9/2/2021).) For example, a December 5, 2020 ER record describes plaintiff's diagnosis as “[c]annabis hyperemesis syndrome concurrent with and due to cannabis abuse.” (Tr. 1533.) Yet plaintiff denied having a substance abuse problem and the agency physicians reviewing the record agreed that a DAA analysis was not required. (Tr. 80, 106, 737.)
The Commissioner responds that the ALJ reasonably discounted plaintiff's testimony about the severity of her abdominal issues based on inconsistent statements about her cannabis use, pointing to her refusal to abstain despite repeated recommendations to do so from medical providers. (Def.'s Br. at 6.) The court agrees with plaintiff that the ALJ failed to provide specific, clear and convincing reasons for discounting her testimony.
A claimant is not eligible for disability benefits if DAA is “a contributing factor material to” the disability determination. 42 U.S.C. § 423(d)(2)(C); see 20 C.F.R. § 416.935(a) (“If we find that you are disabled and have medical evidence of your drug addiction or alcoholism, we must determine whether your drug addiction or alcoholism is a contributing material factor relevant to the determination of disability.”); SSR 13-2p, available at 2013 WL 621536 (Feb. 20, 2013). SSR 13-2p defines DAA as “Substance Use Disorders; that is, Substance Dependence or Substance Abuse as defined in the latest edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM)”; the DSM generally defines substance use disorders as “maladaptive patterns of substance use that lead to clinically significant impairment or distress.” Id. at *3. SSR 13-2p also describes that “a claimant has DAA only if he or she has a medically determinable Substance Use Disorder,” based on “signs, symptoms, and laboratory findings” from an acceptable medical source, or there is evidence that “the claimant is currently receiving treatment for a Substance Use Disorder or evidence of multiple emergency department admissions due to the effects of substance(s) use.” Id. at *10.
A DAA materiality determination is required “only when” (1) there is “medical evidence from an acceptable medical source establishing that a claimant has a Substance Use Disorder”; and (2) the ALJ finds that “the claimant is disabled considering all impairments,” including the DAA. Id. at *4. When a DAA analysis is required, an ALJ completes the initial five-step sequential analysis without separating out the effects of a claimant's DAA, and if the claimant is found disabled, then performs the five-step sequential analysis a second time to “determine[e] which of the claimant's disabling impairments would remain if the claimant stopped using drugs or alcohol.” Parra, 481 F.3d at 747.
Plaintiff relies on Norman K. v. Kijakazi, 650 F.Supp.3d 1096 (D. Or. 2022). In that case, the court reconsidered and corrected its prior opinion concluding that the ALJ committed harmless error in failing to apply the DAA analysis. Id. at 1099. On reconsideration, the court examined the ALJ's findings, including step-two findings that Norman K.'s PTSD, depression, and polysubstance abuse were severe impairments, and evidence showing “‘drastic[] improve[ment]' when he was compliant with treatment recommendations, taking his medications, and not using drugs.” Id. at 1098. As the court observed, the ALJ
stated that her RFC limitations considered and accounted for Plaintiff's substance abuse, [and that] the ALJ's decision focused on Plaintiff's functionality when he was not using drugs, and repeatedly emphasized the “correlation” between, and a “pattern” of episodes related to, Plaintiff's acute mental health episodes and “concurrent” drug use.Id. (internal citations omitted)). The ALJ's analysis was inconsistent with settled Ninth Circuit principles, and the ALJ committed harmful legal error and should have completed the initial five-step sequential evaluation without considering the effects of Norman K.'s substance abuse on his mental and physical impairments. Id. at 1103; see also Bustamante v. Massanari, 262 F.3d 949, 955 (9th Cir. 2001) (holding that ALJ erred in “attempting to determine the impact of Bustamante's alcoholism on his other mental impairments” during the initial five-step analysis).
Plaintiff argues that, like Norman K., the ALJ erred in considering the effects of her cannabis use during the initial five-step inquiry and implicitly found it material. By determining that her cannabis use caused her CHS and discussing that she refused to abstain despite being “often told to stop” using, in plaintiff's view, the ALJ implicitly found her cannabis use material. Plaintiff contends that under SSR 13-2p, the ALJ needed to consider all her impairments -including her cannabis use - during the initial five-step evaluation. (Pl.'s Br. at 11-12, Reply at 7.)
The court is unconvinced that Norman K. is on all fours with this case. Unlike Norman K., the ALJ here did not find that plaintiff has a substance use disorder at step two and she does not advance a step-two argument in this appeal. On the other hand, like Norman K., the ALJ's findings and discussion about plaintiff's ER visits show that the ALJ understood the correlation between her CHS and her cannabis abuse. (Tr. 18-19, citing Tr. 2113). The ALJ rejected plaintiff's testimony that her cannabis use was not the cause of her abdominal pain and discounted the severity of her symptoms because “[m]ultiple sources advised her that is was [the cause], and she was often told to stop.” (Tr. 18-19.) In short, the ALJ has implicitly determined that plaintiff would be more functional, and thus not disabled by her CHS, if she stopped abusing cannabis. This seems to imply that her cannabis use was material and conflates the initial five-step inquiry with the DAA analysis. Therefore, contrary to the Commissioner, the ALJ did not appropriately reject her abdominal pain testimony based on her inconsistent statements about cannabis use.
The Commissioner also argues that plaintiff is not disabled regardless whether the ALJ failed to apply the DAA analysis, and points to other reasons the ALJ provided for concluding that plaintiff's abdominal issues were not as limiting as she alleged. The court disagrees with the Commissioner because the ALJ's other reasons are not supported by substantial evidence.
For example, the ALJ found plaintiff's testimony inconsistent with the objective medical evidence that her gastrointestinal studies were generally normal and unremarkable. (Tr. 18-19.) The ALJ noted plaintiff's two gastric emptying studies, both showing a slight delay (id. citing Tr. 493, 1333), and that despite her claims to have pancreatitis and colitis, “multiple CT scans were unremarkable for etiologies of complaint,” showing only mild or nonexistent colitis. (Tr. 18, citing Tr. 476, 543, 730, 846-52, 1140, 1160, 1799.) The ALJ is correct that the record contains negative tests for pancreatitis, colitis, and unremarkable CT scans, however, those negative test results appear to have pointed her providers to a CHS diagnosis. The ALJ's interpretation is not reasonable here because the lack of objective medical evidence for other ruled-out conditions does not provide a clear and convincing basis to discount plaintiff's testimony of severe abdominal pain that required frequent ER visits.
Plaintiff contends that her gastrointestinal symptoms may be caused by her anxiety, fibromyalgia, or her gastroparesis, not simply CHS.
The ALJ's finding that plaintiff can manage her abdominal pain symptoms with behavior modification and medication is likewise unsupported. (Tr. 18-19.) The ALJ described multiple occasions where plaintiff attributed her stomach pains to smoking cigarettes, and that improvement in her diet alleviated her symptoms. (Tr. 18, citing Tr. 846-52, 1103-05.) For instance, the ALJ cited a record from October 2020 where plaintiff reported that portion control was calming her GI issues. (Tr. 18, citing 1106-08.) But ER records dated one month later reveal that plaintiff was seen in the ER nine times in the previous two months and that she reported quitting smoking cigarettes some nine months earlier. (Tr. 1437-40.) And the record shows that her ER visits continued into September 2021, undermining the ALJ's finding that plaintiff could manage her symptoms with diet and smoking cessation. (Tr. 1116, 1581, 1740-41, 1762, 1805.) Thus, the ALJ's findings on this point are not supported by substantial evidence and are not a reasonable interpretation of the record.
The Commissioner further contends that the ALJ appropriately discounted the severity of her abdominal pain, acknowledging that she has used the ER multiple times within a month, but that “she has also gone months without” using the ER. (Tr. 19.) As plaintiff correctly highlights, longitudinally, the months without ER visits referenced by the ALJ have not persisted. A twomonth break, on this record, is not a clear and convincing rationale to discount her gastrointestinal symptoms. The Commissioner also posits that the ER treatment plaintiff received - “IV fluids, antiemetics, some type of pain medication, and at times benzodiazepines, after which she would be discharged in good condition”- permitted the ALJ to “reasonably find that such routine or conservative treatment belied Plaintiff's allegations of disabling symptoms.” (Def.'s Br. at 6, citing Tr. 19.) The Commissioner's argument is untenable. Obtaining ER treatment 46 times over three years is extreme by any measure. The Commissioner identifies no recent case law supporting its contention that repeated hospitalizations qualifies as “conservative treatment.” See Needham v. Comm'r Soc. Sec., Case No. 3:16-cv-0130-YY, 2017 WL 4052184, at *8 (D. Or. Aug. 8, 2017), adopted, 2017 WL 4050315 (Sept. 13, 2017) (determining that occasional emergency room visits for migraines that resulted in being discharged pain free was not conservative treatment); see also Nolasco v. Kijakazi, Case No. 21-cv-4119, 2023 WL 2773532, at *12 (E.D. Pa. Apr. 3, 2023) (discussing in context of mental health conditions that two hospital visits with a return to baseline was not “conservative and routine” where claimant also involved in therapy and taking psychotropic medication).
In short, the reasons supplied by the ALJ for discounting plaintiff's allegations of severe abdominal pain and gastrointestinal symptoms are not supported by substantial evidence, are not a reasonable interpretation of the record, and on this record, fail to provide a clear and convincing basis to discount that testimony.
2. Mental Health Symptoms and Fibromyalgia Improved With Treatment
Plaintiff contends that the ALJ erred in evaluating her mental health testimony. The ALJ discounted her allegations about her mental health because (1) her circumstances and symptoms changed from a prior fully favorable disability decision; and (2) she reported improvement and stability with medication. Plaintiff argues that the ALJ's reasoning relies on cherry-picked instances of improvement, and that the longitudinal record does not show a “broader development” necessary to satisfy the clear and convincing standard.
As for changed circumstances, plaintiff contends that the ALJ erred by referencing her previous fully favorable decision and then concluding that her circumstances and symptoms had changed, finding that she no longer needed a caregiver and no longer reported hallucinations. By using the prior decision as a starting point, plaintiff asserts that the ALJ erroneously applied a Chavez rationale, instead of simply assessing her mental health limitations on the current record, citing Lambert v. Saul, 980 F.3d 1266, 1268 (9th Cir. 2020). The court understands plaintiff to be contending that, because the ALJ relied on a fully favorable April 2015 disability decision that was later terminated and discussed how her circumstances had changed, the ALJ erred in applying Chavez-style presumption of continuing non-disability. (See Tr. 35 (plaintiff stating that her previous disability benefits were terminated due to her husband's income) and (Tr. 56-62 (April 24, 2015 favorable disability decision).) According to plaintiff, the ALJ erred by relying on the fact that she no longer has a caregiver and that her hallucinations are less frequent than were occurring at the time of her prior adjudication. (Pl.'s Br. at 13-14.) The ALJ is required under Lambert, plaintiff contends, to assess the severity of her mental health symptoms without applying a presumption, and the ALJ erred in considering how her circumstances have changed after the April 2015 decision. Plaintiff also asserts that the ALJ's findings are not supported by substantial evidence.
The Commissioner responds that the ALJ was “aware that a prior ALJ found Plaintiff disabled based on her mental impairment,” the ALJ reasonably distinguished the prior favorable decision, and that the ALJ's findings are supported by substantial evidence.
Plaintiff's arguments referencing Chavez and Lambert are not well developed. In Chavez, the Ninth Circuit determined that “principles of res judicata apply to administrative decisions regarding disability and impose an obligation on the claimant, in instances where a prior ALJ has made a finding of non-disability, to come forward with evidence of ‘changed circumstances' in order to overcome a presumption of continuing non-disability.” Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173 (9th Cir. 2008) (quoting Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988)). In short, Chavez created a rebuttable presumption of continuing non-disability. In Lambert, the Ninth Circuit addressed the conflict between its precedent establishing a presumption of continuing disability in “continuing disability review” cases and the Social Security Administration's interpretation of the 1983 Reform Act, providing that no such presumption exists. 980 F.3d at 1268. The Lambert court overruled its earlier precedents and concluded that “there is no presumption of continuing disability” and that an ALJ must assess whether a claimant disabled “without any such presumption.” Id. at 1268, 1270.
The portion of the decision containing the ALJ's analysis referencing the prior 2015 decision is somewhat perplexing because the ALJ discussed plaintiff's changed circumstances rather than describe those mental health symptoms as simply showing improvement. Yet it is unclear if the ALJ applied a presumption. That said, the ALJ's finding that plaintiff denied reporting hallucinations to her providers, aside from plaintiff's report in June 2020, is supported by substantial evidence. (Tr. 19, citing Tr. 95, 737, 811, 1056, 1064, 1066-67, 1069-70, 1072-73, 1075-76, 1094, 1097-98, 1111, 1116, 1573, 1985.) (But see Pl.'s Br. at 14, citing Tr. 812, 1058, 1090 (relating to her report of auditory hallucinations on June 17, 2020).) The ALJ's findings that plaintiff no longer relies on a caregiver also is backed by substantial evidence. Plaintiff contends that Mickey Willenbring now serves in that role because he provides her meals and takes her to the store to get medication and groceries. (Pl.'s Br. at 13.) However, the ALJ adequately provided reasons germane to Willenbring for rejecting his lay witness report. The ALJ determined the report lacked foundation because it was unclear how much time Willenbring spends with plaintiff, as she “recently moved from Oklahoma to Oregon” in 2020, and thus found Willenbring had not observed plaintiff on a long-term basis. (Tr. 18., citing Tr. 261, 274, 296.) Considering plaintiff's recent move, the court can follow the ALJ's logic here. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996); Rounds v. Comm'r of Soc. Sec., 807 F.3d 996, 1007 (9th Cir. 2015).
Plaintiff does not challenge the ALJ's assessment of Willenbring's lay witness report.
Turning to the ALJ's rationale that plaintiff's mental health symptoms improved with treatment, plaintiff argues that the ALJ focuses on limited instances of improvement, that her mental health symptoms wax and wane, and that the evidence fails to show broader, sustained development necessary to satisfy the clear and convincing standard. The court agrees.
The ALJ found that she “showed stability in symptoms and reported doing well with duloxetine and gabapentin,” and the ALJ is correct that she reported improvement in 2020. (Tr. 19, citing Tr. 1116-18; see also Tr. 814, 860, 1063-1101, 1108-12, 1117.) However, in early 2021, plaintiff was reporting high levels of anxiety and panic attacks. (Tr. 1326-27.) And the reports of improvement are modest, showing that plaintiff reports being able to leave the house about once a week. (Compare Tr. 737 (unable to "leave the house on a daily basis”) with Tr. 45 (driving to grocery story four to five times per month).) Thus, the overall diagnostic picture reveals waxing and waning mental health symptoms with generally low levels of overall functioning. Ghanim, 763 F.3d at 1164 (explaining that an ALJ may not cherry-pick isolated instances of favorable psychological symptoms when the record as a whole reflects longstanding psychological disability); Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (“[S]tatements must be read in context of the overall diagnostic picture he draws. That a person who suffers from severe panic attacks, anxiety, and depression makes some improvement does not mean that the person's impairments no longer seriously affect her ability to function in a workplace.”). That portion of the ALJ's decision is not supported by substantial evidence.
Plaintiff also argues that “the ALJ did not specifically directly address [her] bodily pain complaints from fibromyalgia.” (Pl.'s Br. at 16.) The ALJ noted that, despite plaintiff's reports of fibromyalgia pain, the record shows “limited information about [this] impairment,” and that “she has reported good response to gabapentin for fibromyalgia.” (Tr. 19, citing Tr. 746, 126061, 1202.) As the ALJ observed, her medical records reflect that she has been diagnosed with that condition, that it causes pain, and that her providers are continuing treatment. (Tr. 19, citing 1110-12, 1116-18.) Contrary to plaintiff's contention, the ALJ's findings about her fibromyalgia are reasonable and backed by substantial evidence.
3. Activities of Daily Living
Plaintiff argues that the ALJ erred in discounting her testimony based on her ADLs because the ALJ did not identify any specific activities in which she engaged that exceed her stated limitations, or that could translate to full-time work. An ALJ may reject symptom allegations that are inconsistent with a claimant's ability to perform normal ADLs. Smartt v. Kijakazi, 53 F.4th 489, 499-500 (2022); 20 C.F.R. § 416.929(c)(3)(i)). There are two ways ADLs may support such rejection: (1) the ADLs contravene the claimant's allegations of functional limitations; or (2) the ADLs “meet the threshold for transferrable work skills[.]” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). “Even where those activities suggest some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent that they contradict claims of a totally disabling impairment.” Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012), superseded on other grounds by 20 C.F.R. § 404.1520(a).
In the decision, the ALJ pointed to reports from plaintiff that she is “able to tend to selfcare. She is able to drive, make simple meals, make and attend appointments, complete grocery shopping, and manage financial matters. Hobbies include reading, watching television, and doing crafts such as spinning yarn, knitting, and crocheting.” (Tr. 18.) As plaintiff argues, the ALJ failed to identify any activities that she performs that are inconsistent with her allegations, and failed to explain how any of the cited activities undermined her testimony. Because the ALJ did not explain “which daily activities conflicted with which part of [plaintiff's] testimony,” the ALJ erred. See Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (emphasis in original); Holohan, 246 F.3d at 1208 (9th Cir. 2001) (“[T]he ALJ must specifically identify the testimony she or he finds not to be credible and must explain what evidence undermines the testimony.”).
The ALJ observed that plaintiff reported using a walker or cane and found that the medical record did not document any gait abnormality or strength deficits to support her alleged exertional limitations. (Tr. 19.) The ALJ's finding about her use of the cane and walker are not fully supported by substantial evidence. The record reflects that plaintiff has used an assistive device for many years and the ALJ failed to identify any physical activities that she performs that are inconsistent with using an assistive device. On this record, plaintiff's use of walker or cane does not amount to a clear and convincing basis to discount her testimony. (See Tr. 260, 295, 306, 324, 741-66, 1323-46.)
4. Summary
The court has identified several errors in the ALJ's assessment of plaintiff's subjective symptom testimony. Although substantial evidence supports the ALJ's findings concerning improvements to her fibromyalgia pain, the ALJ erred in discussing her severe abdominal pain, frequent ER visits, mental health, and activities of daily living. Considering those errors, the ALJ's analysis fails to amount to specific, clear and convincing support for discounting plaintiff's subjective symptom testimony and so the ALJ committed harmful error. See Brown Hunter, 806 F.3d at 492-95 (reversing ALJ's assessment of subjective symptom testimony because errors were not harmless).
B. Jesse D. Coleman's Medical Opinion
The regulations require that ALJs evaluate the supportability and consistency of a medical opinion when assessing its persuasiveness. 20 C.F.R. § 416.920c. ALJs must “articulate . . . how persuasive [they] find all of the medical opinions” and “explain how [they] considered the supportability and consistency factors.” Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022) (quoting 20 C.F.R. § 404.1520c(b)(2)). Supportability is determined by assessing whether the medical source provides explanations and objective medical evidence to support their opinion. 20 C.F.R. § 416.920c(c)(1). Consistency is determined by evaluating how consistent the opinion is with evidence from other medical and nonmedical sources in the record. 20 C.F.R. § 416.920c(c)(2).
Dr. Coleman submitted a treating source statement dated October 13, 2021, which listed plaintiff's diagnoses as fibromyalgia, severe depression, PTSD, IBS, and anxiety. Dr. Coleman described that plaintiff would need to rest each day for an unspecified duration because of pain and fatigue, that she often visits the ER, and that plaintiff would miss more than four days of work each month. (Tr. 2244-46.).
The ALJ found Dr. Coleman's opinion unpersuasive because she had “only two contacts with this source.” (Tr. 20, 1323-24, 1326-27.) Specifically, the ALJ found the following:
During the first, [plaintiff] reported that her “back is the biggest pain source,” yet no treatment records during the relevant period address this issue. The second contact focused on what would be diagnosed as cubital tunnel syndrome. Dr. Coleman did not describe clinical findings or other signs to support the need for such a restricted range of function.(Tr. 20.)
Plaintiff argues that the ALJ improperly rejected Dr. Coleman's opinion simply based on the number of visits, and failed to describe how the supportability and consistency factors under the new regulations were applied. The Commissioner responds that the ALJ adequately discussed how Dr. Coleman's treatment records noting back pain and cubital tunnel syndrome are inconsistent with other record evidence. According to the Commissioner, Dr. Coleman's treatment notes do not describe clinical findings that could support the severity of assessed limitations, and reasonably determined it was unpersuasive. (Def.'s Br. at 13-14.) The Commissioner is partially correct.
Dr. Coleman's two treatment notes reflect that the two visits were conducted remotely because of the COVID-19 pandemic. The first visit shows that plaintiff requested a referral to a GI specialist for her gastroparesis and that she requested assistance with obtaining community resources. (Tr. 1323-24.) Although the ALJ accurately states that plaintiff reported her back is the primary source of her pain, contrary to the ALJ's suggestion, the purpose of that virtual visit was to obtain referrals for her gastrointestinal issues and to find potential monetary resources for a caregiver. (Tr. 1324-25.) Plaintiff's second virtual visit with Dr. Coleman reflects that her chief complaint was anxiety, not cubital tunnel syndrome. (Tr. 1327.) As the ALJ noted, plaintiff's right-hand numbness was discussed and a referral was made. However, the ALJ neglected to discuss that plaintiff complained of ongoing anxiety with panic attacks and that she needed medications refilled. (Tr. 1326-27.) Thus, those findings are only partially supported by substantial evidence.
Even so, as the Commissioner correctly argues, the ALJ appropriately found that Dr. Coleman did not describe clinical findings or other signs to support the assessed “restricted range of function.” The Ninth Circuit consistently has held that an ALJ may discount a “medical opinion set forth in a checkbox form with little to no explanation.” Kitchen v. Kijakazi, 82 F.4th 732, 740-41 (9th Cir. 2023). Dr. Coleman's opinion identifies no clinical findings supporting the assessment that plaintiff will miss four days of work per month and needs more rest breaks. Plaintiff contends that Dr. Coleman had access to her entire medical record and must have reviewed it. The court disagrees. Neither Dr. Coleman's treatment notes nor the October 2021 opinion reflect that Coleman reviewed plaintiff's medical record and fashioned the assessed limitations on that review. The ALJ therefore did not err in finding Dr. Coleman's October 2021 opinion unpersuasive on that basis.
C. The ALJ's Hypothetical to the VE
Because the court has determined that the ALJ erred in assessing plaintiff's subjective symptom testimony, which could affect the RFC, the court the court declines to address her step-five argument.
D. Remand is Required
Plaintiff agrees that remanding for further proceedings is the proper course here. (Pl.'s Reply at 16.) The ALJ failed to provide clear and convincing reasons for discounting plaintiff's testimony, including her abdominal pain and gastrointestinal issues, CHS, and mental health, and outstanding issues exist in the record remain that the ALJ must resolve, including whether a DAA analysis is required. On remand, the ALJ should reassess plaintiff's subjective symptom testimony and either incorporate that testimony and its limitations into the RFC or provide adequate reasoning as to why those limitations are rejected. The ALJ should determine whether plaintiff's abdominal issues and frequent ER visits are disabling before determining materiality. The ALJ should offer a new hearing, reevaluate her RFC, and obtain supplemental VE evidence if necessary. Garrison, 759 F.3d at 1019-21 (stating remand is appropriate where “additional proceedings can remedy defects in the original administrative proceeding”).
CONCLUSION
For the above reasons, the Commissioner's decision should be REVERSED AND REMANDED for further proceedings.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due within 14 days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within 14 days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.