Opinion
2:22-cv-00402-HZ
03-07-2023
Steve V.,[1] Plaintiff, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
Chad Hatfield Hatfield Law, PLLC Attorney for Plaintiff Renata Gowie Civil Division Chief U.S. Attorney's Office District of Oregon Erin F. Highland Social Security Administration Office of the General Counsel Attorneys for Defendant
Chad Hatfield
Hatfield Law, PLLC
Attorney for Plaintiff
Renata Gowie
Civil Division Chief
U.S. Attorney's Office
District of Oregon
Erin F. Highland
Social Security Administration
Office of the General Counsel
Attorneys for Defendant
OPINION & ORDER
MARCO A. HERNANDEZ, United States District Judge.
Plaintiff Steve V. brings this action seeking judicial review of the Commissioner's final decision to deny disability insurance benefits (“DIB”) and supplemental security income (“SSI”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)). The Court reverses the Commissioner's decision and remands this case for further administrative proceedings.
PROCEDURAL BACKGROUND
Plaintiff applied for DIB and SSI on December 18, 2017, alleging an onset date of May 18, 2016. Tr. 18.His application was denied initially and on reconsideration. Tr. 18.
Citations to “Tr.” refer to the page(s) indicated in the official transcript of the administrative record, filed herein as Docket No. 12-1.
On March 16, 2020, Plaintiff appeared with counsel for a hearing before an Administrative Law Judge (“ALJ”). Tr. 18. On April 1, 2020, the ALJ found Plaintiff not disabled. Tr. 18. The Appeals Council remanded for further proceedings. Tr. 18. On January 11, 2021, Plaintiff appeared with counsel for a second hearing before the ALJ. Tr. 18. On February 3, 2021, the ALJ again found Plaintiff not disabled. Tr. 37-38. The Appeals Council denied review. Tr. 1.
FACTUAL BACKGROUND
Plaintiff initially alleged disability based on diabetic neuropathy, Hashimoto's thyroiditis (an autoimmune disease), hypothyroid disorder, PTSD, poor social function, poor memory, depression, anxiety, poor concentration, muscular myopathy, and chronic pain. Tr. 113. At the time of the alleged onset date, he was 44 years old. Tr. 36. He has a high school education. Tr. 36. His past relevant work is unskilled. Tr. 36.
SEQUENTIAL DISABILITY EVALUATION
A claimant is disabled if they are 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), 1382c(a)(3)(A). Disability claims are evaluated according to a five-step procedure. SeeValentine v. Comm'r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step procedure to determine disability). The claimant bears the ultimate burden of proving disability. Id.
In the first step, the Commissioner determines whether a claimant is engaged in “substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines whether the claimant has a “medically severe impairment or combination of impairments.” Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled. Id.
In step three, the Commissioner determines whether the claimant's impairments, singly or in combination, meet or equal “one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity (RFC) to perform their “past relevant work.” 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can perform past relevant work, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(e)-(f), 416.920(e)-(f). If the Commissioner meets their burden and proves that the claimant can perform other work that exists in the national economy, then the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ'S DECISION
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity after his alleged onset date. Tr. 21. Next, at steps two and three, the ALJ determined that Plaintiff has the following severe impairments: “cervico-thoracic degenerative disc disease; depressive disorder; anxiety disorder.” Tr. 21. However, the ALJ determined that Plaintiff's impairments did not meet or medically equal the severity of a listed impairment. Tr. 25. At step four, the ALJ concluded that Plaintiff has the residual functional capacity to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) with the following limitations: “he can only occasionally stoop; he is limited to simple, routine tasks and low-level detailed tasks with a reasoning level of 3 or less; and he can have no contact with the public.” Tr. 26. Because of these limitations, the ALJ concluded that Plaintiff could not perform his past relevant work. Tr. 36. But at step five, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, such as “Production Solder,” “Electrical Accessories Assembler,” and “Marker.” Tr. 37. Thus, the ALJ concluded that Plaintiff is not disabled. Tr. 37.
STANDARD OF REVIEW
A court may set aside the Commissioner's denial of benefits only when the Commissioner's findings “are based on legal error or are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). “Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks omitted). The court considers the record as a whole, including both the evidence that supports and detracts from the Commissioner's decision. Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). “Where the evidence is susceptible to more than one rational interpretation, the ALJ's decision must be affirmed.” Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (“Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's”) (internal quotation marks omitted).
DISCUSSION
Plaintiff alleges that the ALJ erred by (1) classifying some of Plaintiff's conditions as less than severe at step two; (2) rejecting his subjective symptom testimony; (3) rejecting the opinions of his medical sources; (4) finding that Plaintiff's impairments do not meet or equal a listing at step three; and (5) relying on an incomplete hypothetical at step five. Pl. Op. Br. 8. For the following reasons, the Court reverses and remands for further proceedings.
I. Step Two Determination
Plaintiff argues that the ALJ improperly concluded that several of his impairments were not severe. Pl. Op. Br. 17. At step two, the ALJ determines whether a claimant's medically determinable impairment or combination of impairments is severe. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). “An impairment or combination of impairments is not severe if it does not significantly limit [a claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1522, 416.922. Step two is a de minimis screening device used to dispose of groundless claims. Yuckert, 482 U.S. at 153-54. “An impairment or combination of impairments can be found ‘not severe' only if the evidence establishes a slight abnormality that has ‘no more than a minimal effect on an individual[']s ability to work.'” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). Thus, even a medical record that “paints an incomplete picture of [the claimant's] overall health during the relevant period” can be enough to show that an impairment is severe. Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005).
The ALJ found that Plaintiff had the following severe impairments: cervico-thoracic degenerative disc disease, depressive disorder, and anxiety disorder. Tr. 21. The ALJ found that Plaintiff had the following non-severe impairments: hypothyroidism, Hashimoto's thyroiditis, peripheral neuropathy, diverticulosis, and history of alcohol use disorder. Tr. 22. Plaintiff challenges the ALJ's finding that Plaintiff's neuropathy, Hashimoto's thyroiditis, and hypothyroidism were not severe. Pl. Op. Br. 17.
For all three conditions, the ALJ stated: “The medical evidence indicates only minimal, periodic evaluation and/or treatment for these conditions.” Tr. 22. The ALJ concluded that Plaintiff's thyroid conditions were not severe because they were treated with medication and Plaintiff “has not had significant weight loss or other limitations secondary to Hashimoto's thyroiditis.” Tr. 22. The ALJ relied on a May 2018 thyroiditis exam that described Plaintiff as “thin but healthy” and concluded his weight was adequate to his height. Tr. 22 (citing Tr. 628). With respect to neuropathy, the ALJ stated that “a recent January 2020 nerve conduction study showed left ‘asymmetric early' peripheral neuropathy but there was ‘no evidence of peripheral poly neuropathy affecting the motor fibers the lower limbs,' and the claimant's physical exam indicated ‘grossly normal' strength and intact sensation.” Tr. 22 (citing Tr. 699-700). Based on these medical exams, the ALJ found no ongoing severe functional limitations due to the three conditions. Tr. 22.
The ALJ erred in his assessment of Plaintiff's thyroid conditions. The ALJ relied on a single exam by a physician in May 2018 that assessed Plaintiff's height to weight ratio. Tr. 22, 628. Beyond describing him as “thin but healthy,” the exam provides no other analysis of Plaintiff's thyroid conditions or indeed any other aspect of his physical health. Tr. 628. Plaintiff points to several places in the record that confirm the diagnosis and its effects. Pl. Op. Br. 17-18. In July 2017, a physician stated that Plaintiff “progressively loses thyroid function from the Hashimoto's process” and prescribed levothyroxine. Tr. 552. The physician noted that the only treatment available for the “immune mediated aspect” of Hashimoto's was lifestyle changes. Tr. 554. In January 2018, a different physician noted that due to Hashimoto's, Plaintiff appeared to exhibit periods of hyperthyroidism in addition to hypothyroidism. Tr. 591. Plaintiff's providers have had to adjust his medication dosage multiple times. Tr. 553 (July 2017 note reviewing changes in dosage over past 8 months), 732 (February 2020 adjustment), 737 (June 2020 adjustment). A test for antibodies in June 2020 returned a positive result for the thyroid peroxidase antibody. Tr. 738. The medical records further reflect that when his dose needed to be adjusted, Plaintiff had low energy and unstable emotions. Tr. 553. Plaintiff's psychiatrist stated in his treatment notes that Plaintiff's anxiety and depression were secondary to his thyroid disfunction. E.g., Tr. 790. The ALJ stated that hypothyroidism was a medical explanation for Plaintiff's fatigue, at least in the beginning of the relevant period. Tr. 23. The record does not support the ALJ's conclusion that Plaintiff's thyroid condition was controlled with medication or that Plaintiff only required minimal treatment. Rather, it indicates that his providers had to regularly monitor his thyroid levels and adjust his medication dosage. It also indicates that Plaintiff's condition did limit his abilities because it caused him fatigue and unstable emotions.
The ALJ also erred in his assessment of Plaintiff's neuropathy. The ALJ relied on a January 2020 nerve conduction study. Tr. 22. That report found that Plaintiff's strength was “grossly normal” (without formal testing). Tr. 699. It also found atrophy in Plaintiff's calves. Tr. 699. The nerve conduction study showed “a left sensory peripheral neuropathy affecting the sural nerve.” Tr. 700. It found no evidence of “a peripheral polyneuropathy affecting the motor fibers of the lower limbs.” Tr. 700. The test results did not indicate that further electrodiagnostic tests were needed. Tr. 700. Based on this nerve conduction study, the ALJ concluded that Plaintiff's neuropathy did not affect his strength and sensation. Tr. 22.
The ALJ's conclusion was erroneous because it ignored the other consequences of Plaintiff's neuropathy. Even if substantial evidence supports the ALJ's conclusion that Plaintiff's neuropathy did not affect his motor functions or sensation, the neuropathy may still be deemed severe if it causes other consequences. Plaintiff does not argue that his neuropathy limited his motor function: he asserts that his neuropathy caused him “undisputed pain and fatigue symptoms.” Pl. Op. Br. 17. The record supports Plaintiff's assertion, as multiple providers recognized Plaintiff's neuropathy and pain and fatigue. E.g., Tr. 814-15 (November 2020 progress note describing “pain, fatigue, and temperature hypersensitivity” and recognizing neuropathy diagnosis); 696 (December 2019 progress note recognizing worsening neuropathy and chronic fatigue). These findings are not inconsistent with the nerve conduction study on which the ALJ relied, which found a left sensory peripheral neuropathy affecting the sural nerve, but no neuropathy affecting the motor fibers of Plaintiff's legs. Tr. 700. Step two is a minimal screening device, and Plaintiff's neuropathy meets the severe impairment standard.
Defendant asserts that even if the ALJ did err, the error was harmless because it was not consequential to the ultimate determination. Def. Br. 11-12. Defendant argues that the ALJ accounted for all limitations posed by Plaintiff's thyroid conditions and neuropathy in formulating the RFC. Id. at 12. Plaintiff counters that the error is harmful because the ALJ did not adequately consider those limitations at steps three and five. Pl. Reply 10.
Failure to consider a medical condition at step two may result in harmful error at step three. Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). The plaintiff bears the burden of pointing to a listing that the condition meets or equals and providing evidence to support an argument that combined impairments are equivalent to a listing. Id. at 682-83. Plaintiff does not cite any listing other than those for the conditions the ALJ deemed severe. Pl. Op. Br. 17-19, Pl. Reply 10-11. The progress notes from Plaintiff's psychiatrist, Dr. Joel Rice, state that Plaintiff's anxiety and depression are secondary to his thyroid dysfunction. E.g., Tr. 596. As discussed, the ALJ erroneously focused on Plaintiff's weight in finding Plaintiff's thyroid conditions non-severe. The record indicates that Plaintiff's thyroid conditions are a cause of his anxiety and depression, which the ALJ deemed severe, so a remand is appropriate to consider whether Plaintiff's conditions meet or equal a listing. SeeCelaya v. Halter, 332 F.3d 1177, 1182 (9th Cir. 2003) (holding that ALJ should have considered the effect of the plaintiff's obesity on her severe impairments of diabetes and hypertension at step three). See also infra at 44.
Failure to consider a medical condition at step two is harmless error with respect to step four if the limitations posed by that condition are adequately accounted for at step four. Lewis v.Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Here, the Court cannot determine whether the ALJ adequately accounted for the limitations posed by Plaintiff's thyroid conditions and his neuropathy. The ALJ explicitly stated that he considered Plaintiff's non-severe medically determinable impairments. Tr. 22. However, it is unclear from the ALJ's analysis that he addressed the link between Plaintiff's thyroid conditions and his anxiety and depression. It is also unclear that he addressed the full range of symptoms from Plaintiff's neuropathy. Accordingly, the Court cannot conclude that the error was harmless with respect to step four. It follows that the Court cannot determine whether the ALJ's error at step two affected the outcome at step five. See also infra at 46.
II. Subjective Symptom Testimony
The ALJ is responsible for evaluating symptom testimony. SSR 16-3p, 2017 WL 5180304, at *1 (Oct. 25, 2017). The ALJ engages in a two-step analysis for subjective symptom evaluation. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (superseded on other grounds). First, the ALJ determines whether there is “objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged.” Id. (internal quotations omitted). Second, “if the claimant has presented such evidence, and there is no evidence of malingering, then the ALJ must give specific, clear and convincing reasons in order to reject the claimant's testimony about the severity of the symptoms.” Id. (internal quotations omitted).
When evaluating subjective symptom testimony, “[g]eneral findings are insufficient.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). “An ALJ does not provide specific, clear, and convincing reasons for rejecting a claimant's testimony by simply reciting the medical evidence in support of his or her residual functional capacity determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015). Instead, “the ALJ must specifically identify the testimony she or he finds not to be credible and must explain what evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195 (9th Cir. 2001); see also Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (The reasons proffered must be “sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discount the claimant's testimony.”).
Plaintiff previously worked in maintenance from February 2014 to May 2016 and 2011 to 2012; as a gas station attendant in 2014; as an install tech between November 2010 and February 2011; and as a machinist in 2010. Tr. 178-79. In a function report completed in January 2018, Plaintiff listed many reasons that he could not work, including “severe loss of concentration/memory/following instructions” and “extreme fatigue all hours of the day.” Tr. 416. He also reported becoming confused and losing track of what he was doing, muscle weakness, nerve pain, inability to stay awake, extreme anxiety and social anxiety, brain fog, inability to communicate when fatigued, overall body pain, general depression, and back pain. Tr. 416.
Plaintiff reported that during the day, he spent time on the internet and did light reading. Tr. 417. He reported that he did light chores “when I am able.” Tr. 417. He went to the store “but only if mentally clear.” Tr. 417. He reported playing with his daughter for “no more than 10 minutes at a time.” Tr. 417. He reported that he cared for his daughter while his wife was at work: preparing lunch, changing diapers, and picking up after her. Tr. 417. His wife worked four hours at a time, two or three times per week. Tr. 417. He reported that his wife performed 90% of the duties in caring for their daughter. Tr. 417. Plaintiff reported that he could not tolerate “social functions, physical work outs, driving long distances, running errands, remembering appointments, outdoor hobbies.” Tr. 417.
Plaintiff reported that his poor balance affected his ability to bathe and dress. Tr. 418. He reported that he would get confused when cooking and forget to turn off burners. Tr. 418. He reported that he only cooked “fast and easy” meals that took five or six minutes to prepare. Tr. 418. He reported generally not feeling well enough to eat properly or maintain his hygiene. Tr. 418. He reported that he often forgot to take his medication. Tr. 418. Plaintiff reported that he could do the following chores: taking out the trash, dusting, loading the dishwasher. Tr. 419. He reported that his wife drove him 90% of the time when he went out. Tr. 419. His wife accompanied him to go to the doctor, family events, and church. Tr. 419. He reported shopping online weekly. Tr. 419. He did not report difficulty paying bills, counting change, or handling a savings account, but did not know how to balance a checkbook. Tr. 420. He reported that he had almost no social activities in his life outside of spending time with family. Tr. 421.
Plaintiff reported difficulties lifting, squatting, bending, standing, reaching, walking, kneeling, climbing stairs, and using his hands. Tr. 421. He also reported trouble with memory, completing tasks, concentration, understanding, talking, following instructions, and getting along with others. Tr. 421. He reported being able to pay attention for no more than a few minutes at a time. Tr. 421. He reported being unable to remember spoken instructions. Tr. 421. He reported that he could not handle stress at all and struggled with changes in routine. Tr. 422. He reported taking propranolol, lamotrigine, and diazepam. Tr. 422.
At his hearing in March 2020, Plaintiff testified that he stopped working in May 2016 after injuring his back on the job and suffering later complications. Tr. 93. He testified that after the injury, he had pain in his lower back going down to his legs, as well as numbness in his legs and feet. Tr. 93-94. He testified that currently, the pain came in waves. Tr. 94. He testified to “burning” in his feet, pain in his legs, and skin sensitivity. Tr. 94. He testified that every day he elevated his feet in his recliner for one to two hours. Tr. 94-95. He testified that he had “sporadic” pain all over his body. Tr. 95. He testified that after being up for about three hours, his fatigue would start to increase, and that it was exacerbated by social activity. Tr. 95.
Plaintiff testified that due to his pain and fatigue, he had trouble concentrating, could not read for long, and would leave burners on when cooking. Tr. 96. He testified that his symptoms were more minimal in the mornings, which allowed him to get his daughter ready for school, but that brain fog would set in later in the day. Tr. 97. Plaintiff testified that on one occasion since May 2016, he tried to perform an electrical job for a friend, but he made too many mistakes, even though it was work he had been able to do in the past. Tr. 97-98.
Plaintiff testified that he had anxiety and easily became stressed. Tr. 98-99. He stated that he experienced “nausea, shakiness, sweating, heart palpitations” when taking his daughter to school. Tr. 98. He stated that time constraints and driving caused him stress. Tr. 98-99. He testified that deep breathing exercises were the only thing that helped him manage stress. Tr. 99. He stated that they took five to fifteen minutes. Tr. 100. He stated that social events were a particular cause of stress and he had had a panic attack on the way to church. Tr. 100-101. Plaintiff testified that he had been getting mental health counseling for the past two years. Tr. 101. He testified that he went once a month because of the cost of travel. Tr. 102. He testified he did not seek counseling closer to home because he was getting good care with his current therapist and did not feel a need to seek care from anyone else. Tr. 103-104.
At his hearing in January 2021, Plaintiff testified that he had not tried to work since the previous hearing. Tr. 49-50. He stated that his daughter was attending school from home because of the pandemic and that he could not figure out how the school system worked and usually could not help his daughter. Tr. 50. He stated that he could not pay for psychotherapy out of pocket, and would have to find a different provider because his insurance would not cover it. Tr. 51. He testified that his neuropathy was the same as it was at his previous hearing. Tr. 51-52. He testified that his dexterity had worsened and he was dropping things. Tr. 52. He stated that the amount he needed to lie down in his recliner or take naps was unchanged. Tr. 53. His brain fog was unchanged. Tr. 53. Plaintiff testified that he had written down the wrong date for all of his doctor's appointments. Tr. 54. He testified to having flulike symptoms almost every day. Tr. 5455. He testified that he only took ibuprofen for pain because he had “horrible reactions” to other medications. Tr. 55. He testified that he went off diazepam for a few weeks and then had to go back on it because he had a panic attack and had to go to the emergency room. Tr. 55-56. He testified that he often avoided family gatherings and church because he felt “too overwhelmed.” Tr. 56. He testified that he went to Walmart to get his medication but tried to do store pickups for other purchases to avoid entering the store. Tr. 57. He testified that when his wife broke her foot, he did two or three errands at once. Tr. 57-58.
As to his neuropathy, Plaintiff testified that he wore multiple layers of clothing because of skin sensitivity. Tr. 60. He testified that he would need a biopsy for more information about his neuropathy, but the person who did a nerve conduction test of him did not think he should do it because of the pain. Tr. 60-61. He testified that his primary care provider agreed that he did not need the biopsy. Tr. 62-63.
The ALJ found that Plaintiff's medically determinable conditions could reasonably be expected to cause some of the alleged symptoms, but found Plaintiff's testimony “not entirely consistent” with the evidence of record. Tr. 29. The ALJ discounted Plaintiff's testimony based on (1) inconsistency with his activities of daily living; (2) an inconsistent work history; (3) routine, conservative treatment; (4) improvement with medication; and (5) lack of support in the medical record. Tr. 29-33.
A. Activities of Daily Living
The ALJ found that Plaintiff's reported activities of daily living conflicted with his allegations of debilitating symptoms. The ALJ stated that Plaintiff:
manages his own personal care/hygiene and medications; fixes his own meals; cares for his daughter during the day; and performs household chores (e.g., trash disposal, cleaning, dusting, and load dishwasher). In addition, the claimant is able to get out of the house regularly, go out alone, travel independently by driving, shop in stores occasionally (though reportedly his wife does most of the shopping), attend church services, use computers/internet, and engage in hobbies including doing crafts and selling items on eBay.Tr. 32-33. The ALJ further observed: “Despite his alleged severe back problems limiting mobility, treating records in March 2017 indicate he exercises doing pull ups.” Tr. 33. The ALJ also stated:
In April 2018, the claimant reported to psychological examiner Dr. Condon that his typical day included having breakfast, caring for his daughter up to six hours today (including getting her up and off to school), some cooking, and doing “light chores” such as trash removal and cleaning the kitchen. Ex. 15F/3; 30F/4. He noted that he showers in the evening, sleeps well from 11 p.m. to 7 a.m., and feels good and clearheaded when he awakes in the morning. Id. The claimant further reported that he reads daily, does some crafts including making knife handles, and sells items on eBay such as knife sharpeners and leather items. Id.Tr. 33.
Contradiction with a claimant's activities of daily living is a clear and convincing reason for rejecting a claimant's testimony. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). There are two grounds for using daily activities to support an adverse credibility determination: (1) when activities meet the threshold for transferable work skills and (2) when activities contradict a claimant's other testimony. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). In order to impact a claimant's credibility, the activity has to be “inconsistent with claimant's claimed limitations.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). The ALJ cannot mischaracterize statements and documents in the record or take these out of context in order to reach his conclusion on the claimant's credibility. Id. at 722-23. In addition, the claimant's ability to perform limited basic daily activities is not a clear and convincing reason to reject a claimant's testimony. See id. at 722 (“[D]isability claimants should not be penalized for attempting to lead normal lives in the face of their limitations.”); Webb, 433 F.3d at 688. (“The mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from [his] credibility as to [his] overall disability. One does not need to be utterly incapacitated in order to be disabled.”) (internal quotation omitted).
Plaintiff asserts that the ALJ did not explain how the daily activities are inconsistent with his testimony. Pl. Op. Br. 20. Plaintiff does not dispute that he engaged in the specified activities.
The ALJ did not err in relying on a March 2017 emergency room note stating that Plaintiff engaged in pull-ups. Tr. 33, 667. Plaintiff's claim of disability is based in part on severe back pain due to an injury sustained in May 2016. Pl Br. 2 (citing Tr. 545, 654-56, 659-62). The ALJ reasonably concluded that if Plaintiff was engaging in pull-ups, his back injury and resulting mobility limitations were not as severe as he claimed. Tr. 33. In addition, Plaintiff reported that he could do the following chores: taking out the trash, dusting, and loading the dishwasher. Tr. 419. These activities also suggest a greater range of physical mobility, as they involve bending, lifting, and carrying. The ALJ also reasonably concluded that Plaintiff's craft work making knife handles undermines his testimony about limitations in the mobility of his hands. Tr. 33.
However, in his assessment of Plaintiff's other activities, the ALJ overstated Plaintiff's self-reported level of functioning by ignoring the context of Plaintiff's testimony. In his function report, Plaintiff stated that he went to the store “but only if mentally clear.” Tr. 417. He reported playing with his daughter for “no more than 10 minutes at a time.” Tr. 417. He reported that he would get confused when cooking and forget to turn off burners. Tr. 418. He reported that he only cooked “fast and easy” meals that took five or six minutes to prepare. Tr. 418. He reported generally not feeling well enough to eat properly or maintain his hygiene. Tr. 418. He reported that he often forgot to take his medication. Tr. 418. His wife did 90% of the work caring for the couple's daughter and maintaining their home. Tr. 417. He reported that his wife drove 90% of the time when he went out. Tr. 419. He reported that he had almost no social activities in his life outside of spending time with family. Tr. 421. He testified that he could only read for short periods of time due to his fatigue. Tr. 96. Plaintiff's testimony about his activities is not inconsistent with his testimony about pain, fatigue, and other symptoms from his depression and anxiety, as well as his neuropathy and thyroid conditions.
The ALJ heavily relied on a psychological evaluation of Plaintiff by Stephen Condon, Ph.D., conducted on April 3, 2018. Tr. 33, 622. Viewed in full, this report is not inconsistent with Plaintiff's testimony. For instance, the ALJ relied on Plaintiff's statement to Dr. Condon that he felt good when he woke up and was clear-headed. Tr. 33, 624. However, immediately afterward, Plaintiff said, “Around 10:00 I hit a brick wall.” Tr. 624. This is consistent with his testimony at the hearing that he was clear-headed in the morning before brain fog set in later in the day. Tr. 97. And while Plaintiff told Dr. Condon that he took his daughter to school, he also stated that doing so made him anxious. Tr. 624. This is consistent with Plaintiff's testimony at his hearing. Tr. 98.
The ALJ failed to explain how Plaintiff's ability to go on the internet and sell crafts on eBay is inconsistent with his testimony about social anxiety, and no such contradiction is apparent. See Tr. 33. Indeed, Plaintiff's preference for online shopping and sales is consistent with his statements in his function report that he finds it difficult to go to the store and avoids social situations. Tr. 417.
In sum, the ALJ did not err in discounting Plaintiff's subjective symptom testimony with respect to mobility limitations, but he erred in discounting it with respect to Plaintiff's other limitations.
B. Work History
The ALJ stated that “the record shows that the claimant has an inconsistent work history dating back to well before the alleged disability onset date, suggesting the explanation for his ongoing unemployment is likely something of longer standing than his current medical conditions.” Tr. 33. An ALJ may discount a claimant's testimony about ability to work based on a poor work history that predates the claim of disability. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
Plaintiff's alleged onset date is May 18, 2016. Tr. 18. Plaintiff's work history, as outlined above, does show some inconsistency and gaps. Tr. 178-79. Plaintiff does not directly dispute the ALJ's characterization, instead arguing that “the records document a 10-to-15-year history of neuropathy” and he tried to work through the debilitating symptoms of neuropathy. Pl. Op. Br. 20. The ALJ recognized Plaintiff's peripheral neuropathy but only as a non-severe impairment. Tr. 22. As discussed above, this was error. Further, Plaintiff's medical records reflect that his neuropathy is longstanding. Tr. 497 (Plaintiff reported to physician in June 2016 that neuropathy in his lower extremities developed 16 years ago); 545 (Plaintiff reported to Dr. Jonas Oltman in August 2016 that his “chronic neuropathy” had lasted for 15 years); 553 (Plaintiff reported to Dr. Steven Kunkel in July 2017 that he started having problems with altered skin sensation about 14 years prior and saw a neurologist but “[n]o underlying cause was identified”). Dr. Kunkel relied not only on Plaintiff's self-reporting but also on his medical records. Tr. 553.
In addition, Plaintiff testified at his hearing in 2020 that he did a job installing electrical outlets after May 2016 and performed poorly. Tr. 97-98. He stated that the person who hired him liked him and liked his work ethic but did not call him back because of the mistakes. Tr. 97. The ALJ did not discredit Plaintiff's testimony about this job. Tr. 28.
Substantial evidence does not support the ALJ's decision to discount Plaintiff's testimony on the basis of his work history. First, Plaintiff's work history shows that he did not keep jobs for long during the period between 2010 and May 2016. Tr. 178-79. However, he kept his most recent job for over two years. Tr. 178. He tried to work after May 2016 but was unsuccessful. Tr. 97. In contrast, the plaintiff in Barnhart consistently had “years of unemployment between jobs,” a work history that led the ALJ to conclude that she simply did not want to work. 278 F.3d at 959. Second, the ALJ ignored the substantial evidence in the record that Plaintiff's neuropathy affected him for approximately 15 years prior to 2016. It would be counter to the purposes of the disability evaluation process to penalize individuals who attempt to work in the face of a disabling condition before concluding that they cannot do so. See Reddick, 157 F.3d at 722 (“[D]isability claimants should not be penalized for attempting to lead normal lives in the face of their limitations.”). Finally, the ALJ's analysis of Plaintiff's work history amounts to speculation that something other than Plaintiff's medical conditions is behind his claim, with no suggestion of what that might be. The ALJ did not, for instance, conclude that Plaintiff simply did not want to work. Plaintiff's work history is not a clear and convincing reason to discount his testimony.
C. Conservative Treatment
The ALJ discounted Plaintiff's testimony about his severe impairments because he only engaged in “routine, conservative treatment.” Tr. 29. An ALJ may discount a plaintiff's testimony about the severity of an impairment based on evidence of conservative treatment. Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (physical conditions treated with over-the-counter pain medication); Tommasetti, 533 F.3d at 1040 (physical conditions treated with “physical therapy and the use of anti-inflammatory medication, a transcutaneous electrical nerve stimulation unit, and a lumbosacral corset”).
The ALJ stated that “[f]or most of the period at issue, the record reflects essentially routine treatment from an endocrinologist, a primary care provider, and a psychiatrist.” Tr. 32. Addressing Plaintiff's psychological conditions, the ALJ wrote, “the claimant has sought fairly minimal counseling, averaging about one visit a month with a therapist in his psychiatrist's office (and he testified at the March 2020 hearing that he did not feel the need to have more counseling).” Tr. 32. Addressing Plaintiff's physical conditions, the ALJ noted that Plaintiff was often referred for additional workup but was not seen promptly. Tr. 32. The ALJ particularly noted that Plaintiff did not see a rheumatologist until April 2020 and concluded that this meant his symptoms were not severe. Tr. 32.
The ALJ is correct that Plaintiff was often referred to specialists or other providers. Tr. 495 (August 2016 treatment note referencing referral to a neurologist), 618 (March 2018 referral for sleep study for apnea), 644 (July 2018 referral to orthopedist regarding shoulder), 697 (December 2019 referral to a rheumatologist and for a nerve conduction study). The ALJ is also correct that Plaintiff was not seen by a rheumatologist until April 2020. Tr. 808. However, this is not enough on its own to conclude that Plaintiff's course of treatment was conservative. Plaintiff had the nerve conduction study in January 2020, less than one month after the referral. Tr. 697. Plaintiff's medication list as of November 2020 reflects that he took over-the-counter medications for pain (ibuprofen and acetaminophen) and was also prescribed baclofen, diazepam, and lamotrigine. Tr. 815-816. The ALJ relied on this appointment note in evaluating Plaintiff's level of treatment. Tr. 30.
Furthermore, it is unclear what additional treatment Plaintiff should have sought for his conditions. For instance, in Tommasetti, the plaintiff “stopped taking an effective medication due to mild side effects” and did not pursue more aggressive treatment. 533 F.3d at 1039. Here, Plaintiff testified that he had “horrible reactions” to prescription pain medication. Tr. 55. In addition, it appears the diazepam and lamotrigine were prescribed in part to treat Plaintiff's pain. Tr. 527. The ALJ did not identify any treatment Plaintiff rejected, only that there was a delay in referring him to a specialist. Plaintiff's medical records also reflect that his providers were uncertain about the cause of his conditions. E.g., Tr. 553 (physician noting that Plaintiff had visited a neurologist years ago but that the neurologist had been unable to explain his condition). It is not clear and convincing to conclude that Plaintiff's course of treatment was conservative and discount his testimony because his providers delayed in referring him to a specialist out of uncertainty over which specialist he should see. Plaintiff's medical records reflect regular appointments with his primary care provider and an endocrinologist and also show that he did meet with specialists when referred to them. Substantial evidence does not support the ALJ's conclusion that Plaintiff's course of treatment for his physical conditions was conservative.
With respect to counseling, the ALJ somewhat misstated Plaintiff's level of treatment. Plaintiff testified at his hearing in 2020 that for the past two years, he had spoken with both Dr. Rice, a psychiatrist, and another individual in Dr. Rice's office named Stephanie who worked with him on issues related to his anxiety. Tr. 101. Plaintiff testified that it was a long drive to the office from his home in Hermiston and required a lot of gas. Tr. 102. He testified that the drive was about 45 to 50 miles. Tr. 103. For this reason, he testified that he went once a month instead of once a week. Tr. 102. When the ALJ asked Plaintiff why he did not go see a counselor in Hermiston in addition to Dr. Rice, Plaintiff stated that he thought he was “getting really good care” with Dr. Rice and Stephanie and “didn't feel the need” to see another provider. Tr. 104. At his hearing in 2021, Plaintiff testified that due to the pandemic, he could no longer meet with his therapist, and that he could not afford to pay out of pocket for psychotherapy. Tr. 51. He stated that he could not find a therapist that would take his insurance. Tr. 51. The ALJ did not err in concluding that Plaintiff thought one counseling appointment per month was sufficient. However, Plaintiff drove approximately 50 miles to those appointments and met with two providers. This context is relevant.
In addition, the record shows that Plaintiff was taking two prescription medications to regulate and stabilize his mood. His November 2020 medication list includes diazepam and lamotrigine. Tr. 816. The ALJ erred in focusing only on the frequency of counseling appointments in finding Plaintiff's treatment of his mental health conditions conservative. Substantial evidence does not support the ALJ's finding.
In sum, the ALJ erred in discounting Plaintiff's testimony based on his course of treatment.
D. Improvement with Medication
The ALJ found that Plaintiff's pain improved with medication. Tr. 30. Relevant factors for the ALJ to consider when evaluating symptom testimony include “[t]he type, dosage, effectiveness, and side effects of any medication” the plaintiff takes to alleviate symptoms. 20 C.F.R. § 404.1529(c)(3)(iv). “[E]vidence of medical treatment successfully relieving symptoms can undermine a claim of disability.” Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017). See also Perry H. v. Saul, No. 1:19-CV-00050-AA, 2020 WL 2764614, at *5 (D. Or. May 27, 2020).
In addressing Plaintiff's physical conditions, the ALJ relied on notes from multiple appointments between October 2017 and November 2020. Tr. 30. On October 25, 2017, Dr. Oltman wrote that Plaintiff had recently started taking “Diazepam, Lamictal and Naltrexone for pain.” Tr. 527. Dr. Oltman noted that “[s]ymptoms have been doing much better on these medicines. Pain has been better controlled, although continues to have issues with weakness and numbness to his feet[.]” Tr. 527. An endocrinology exam in January 2018 concluded that Plaintiff was “[w]ell developed, well nourished, no acute distress.” Tr. 590. The physician adjusted the dose of Plaintiff's levothyroxine for his Hashimoto's because he was exhibiting symptoms of hyperthyroidism. Tr. 591. The physician also noted the need for tests related to Plaintiff's fatigue. Tr. 591. In October 2018, Plaintiff's physician stated that Plaintiff “reports his pain has improved, but he has myopathy which is severe and fatigue.” Tr. 685. In June 2019, Plaintiff's physician stated that Plaintiff “appears well-developed and well-nourished. No distress.” Tr. 693. In January 2020, a physical exam found that Plaintiff had atrophy in the bilateral calves, but his strength was grossly normal, and sensation was intact in the bilateral upper and lower extremities. Tr. 699. At a March 2020 physical exam, Plaintiff had “[m]otor strength within normal limits” and intact sensation. Tr. 736. Finally, Plaintiff appeared well at a November 2020 rheumatology appointment. Tr. 816. The ALJ's conclusion that Plaintiff's pain improved with medication is supported by substantial evidence.
Plaintiff does not rebut the ALJ's conclusion on this point, instead focusing on the ALJ's analysis of his mental health. Plaintiff asserts that “the record fails to establish any sustained improvement in [his] mental health symptoms.” Pl. Op. Br. 20. Plaintiff argues that the ALJ improperly focused on instances of waning symptoms. Id. at 19-20. Because mental health symptoms may wax and wane over time, the ALJ may not “pick out a few isolated instances of improvement . . . and [] treat them as a basis for concluding a claimant is capable of working.” Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014).
The ALJ erred in discounting Plaintiff's testimony about his mental health symptoms. The treatment note from Dr. Oltman on which the ALJ relied stated that Plaintiff had “continued anxiety issues.” Tr. 527. Dr. Oltman also wrote, “Symptoms seem to be controlled somewhat with medicine, but states he is having worsening memory issues where he is having a hard time even finding his way around town. This has been ongoing prior to medications, but medications may have been worsening it somewhat, he thinks.” Tr. 527.
In discounting Plaintiff's testimony on his anxiety and depression, the ALJ relied on mental status exams showing results “largely within normal limits” or “not[ing] only vaguely depressed/anxious symptomatology.” Tr. 31. The ALJ also stated that Plaintiff's mental status exams generally showed as normal during his visits with his psychiatrist, Dr. Rice. Tr. 32. Records from Plaintiff's appointments with Dr. Rice show that Plaintiff's mental status was assessed as “anxious, depressed” at several appointments in 2017 and into early 2018. Tr. 596, 598, 600, 602. His mental status was also assessed as “anxious, depressed” in November 2 018 and February 2019. Tr. 723, 726. Plaintiff's mental status was assessed as “normal” between June 2019 and September 2020. Tr. 708, 711, 714, 717, 720, 768, 771, 774, 777, 780, 783, 786, 789. However, many of the appointment notes listing a “normal” mental status also reflect Plaintiff's ongoing mental health struggles. In June 2019, Dr. Rice noted that Plaintiff had “[m]ore alcohol craving with more stress.” Tr. 719. In July 2019, Plaintiff discussed body dysmorphia with Dr. Rice. Tr. 717. In January 2020, Dr. Rice wrote that Plaintiff showed a “gradual decline.” Tr. 771. Plaintiff's September 2020 appointment note states that Plaintiff had severe panic attacks and went back on diazepam. Tr. 789. The ALJ failed to address this appointment note when discussing Dr. Rice's notes. Tr. 32.
The treatment notes, when viewed as a whole, exhibit the sort of waxing and waning symptoms the Ninth Circuit has recognized for mental health conditions. E.g., Garrison, 759 F.3d at 1018 (reviewing the plaintiff's symptoms and concluding that some came and went while others were continuously present during the relevant period). Plaintiff was more anxious and depressed between mid-2017 and early 2019, had a period of improvement thereafter, and then had panic attacks and was restarted on medication. Dr. Rice never wrote that Plaintiff had overcome his conditions or that they were under control-indeed, he noted a “gradual decline.” Tr. 771. The treatment notes consistently list Plaintiff's anxiety assessment as “severe panic attacks with agoraphobia, avoidance”; “extremely stress sensitive”; and “STM [short-term memory] impairment.” E.g., Tr. 790 (September 2020 treatment note). Plaintiff's depression was only in “partial remission.” E.g., Tr. 790.
Further, Dr. Rice's testimony reinforces that Plaintiff's symptoms waxed and waned over the relevant period. Dr. Rice testified at the March 2020 hearing that Plaintiff looked very different at different visits depending on his anxiety level. Tr. 84. He stated that Plaintiff's anxiety came and went with stress. Tr. 84. He stated that Plaintiff's concentration was “not good.” Tr. 85. He stated that Plaintiff “remains very anxious and chronically mildly depressed or dysthymic; you know, prone to having periods of higher energy and lesser energy.” Tr. 86. Dr. Rice doubted that Plaintiff would “have any major improvement over that.” Tr. 86. In focusing on only the normal mental status exams, the ALJ erroneously discounted Plaintiff's testimony about his mental health symptoms.
In sum, substantial evidence supports the ALJ's conclusion that Plaintiff's pain improved with medication, but the ALJ improperly discounted Plaintiff's testimony about his mental health symptoms based on waxing and waning symptoms.
E. Objective Medical Evidence
The ALJ found that Plaintiff's testimony was inconsistent with the medical record. Tr. 29. An ALJ may discount a claimant's testimony based on a lack of support from objective medical evidence, but this may not be the sole reason. See Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (holding that “an ALJ may not reject a claimant's subjective complaints based solely on a lack of medical evidence to fully corroborate the alleged severity of pain.”); Taylor v. Berryhill, 720 Fed.Appx. 906, 907 (9th Cir. 2018) (explaining that a “lack of objective medical evidence cannot be the sole reason to discredit claimant's testimony,” and therefore holding that the ALJ failed to provide clear and convincing reasons for discounting the claimant's testimony) (citation omitted); Heltzel v. Comm'r of Soc. Sec. Admin., No. 19-1287, 2020 WL 914523, at *4 (D. Ariz. Feb. 26, 2020) (stating that “[b]ecause the ALJ's other reasons for rejecting Plaintiff's testimony were legally insufficient, a mere lack of objective support, without more, is insufficient to reject Plaintiff's testimony.”). However, “[w]hen objective medical evidence in the record is inconsistent with the claimant's subjective testimony, the ALJ may indeed weigh it as undercutting such testimony.” Smartt v. Kijakazi, 53 F.4th 489, 498 (9th Cir. 2022).
The ALJ did not err in discounting Plaintiff's testimony about his mobility limitations based on his activities. Supra at 16. Thus, the ALJ could properly rely on imaging of Plaintiff's spine showing minimal abnormalities and on the many exams showing that Plaintiff had normal motor strength and gait. Tr. 29-30.
As discussed above, the ALJ erred in his assessment of Plaintiff's depression and anxiety. Supra at 24-26. The record shows that the symptoms of these conditions waxed and waned over the relevant period.
The objective medical evidence does not support the ALJ's decision to discount Plaintiff's testimony on his cognitive abilities. The ALJ relied on Dr. Condon's examination of Plaintiff's mental abilities. Tr. 32. The ALJ conceded that Plaintiff “had some difficulties on measures of memory/recall and concentration” but stated that “findings were otherwise generally normal.” Tr. 32. Plaintiff was clean, well-groomed, and pleasant. Tr. 32. A review of Dr. Condon's full mental status exam shows that the ALJ understated the results. While it is true that Dr. Condon found Plaintiff pleasant and well-groomed, Dr. Condon also found that Plaintiff struggled to perform many of the cognitive tasks. Tr. 625-26. Plaintiff did not know the date. Tr. 625. He could not name the states that border Oregon. Tr. 625. He calculated three items at 35 cents each as $1.00. Tr. 625. He could not spell the word “world” backward. Tr. 625. He struggled with a digit span task. Tr. 625. He accurately recounted only 6 of 12 details from a short story without prompting. Tr. 626. Plaintiff also performed several tasks correctly. Tr. 62526. Ultimately, given the number of errors and struggles, the ALJ's characterization of the exam results as generally normal is not reasonable. The results of this exam are consistent with Plaintiff's testimony that he has trouble concentrating and that he cannot remember the dates of his medical appointments. Tr. 54, 96. Plaintiff did not testify that he was completely cognitively impaired; he testified to memory and concentration issues that are consistent with the results of Dr. Condon's exam.
Notably, Dr. Rice's treatment notes state that Plaintiff's wife is to dispense his diazepam. E.g., Tr. 598, 600, 602. This contradicts the ALJ's conclusion that Plaintiff could manage his own medication and supports Plaintiff's statement in his function report that he often forgot to take his medication. Tr. 418.
To conclude the preceding review of the ALJ's bases for discounting Plaintiff's testimony, the Court finds as follows: Substantial evidence supports the ALJ's decision to discount Plaintiff's testimony about his mobility limitations based on Plaintiff's activities and the objective medical record. The ALJ did not err in concluding that Plaintiff's pain improved with medication, but did err in discounting the severity of Plaintiff's testimony about pain and fatigue based on a conservative course of treatment and his activities. The ALJ erred in discounting Plaintiff's testimony about his mental health and cognition based on his activities, his course of treatment, and the waxing and waning symptoms shown in the medical record. Plaintiff's work history does not provide a basis to discount his testimony. Ultimately, with respect to Plaintiff's testimony on physical symptoms other than mobility, the ALJ's errors are significant enough that substantial evidence does not support the ALJ's conclusions. A remand is necessary to reevaluate Plaintiff's testimony on symptoms other than his mobility limitations.
III. Medical Opinion Evidence
Plaintiff challenges the ALJ's evaluation of the medical opinions of four medical sources: Dr. Jonas Oltman, Dr. Robert Smiley, Dr. Joel Rice, and Family Nurse Practitioner (“FNP”)
Eileen McElligott. New regulations about weighing medical opinion evidence apply to claims filed on or after March 27, 2017. Rules Regarding the Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed.Reg. 5844-01 (Jan. 18, 2017); 20 C.F.R. §§ 404.1520c, 416.920c. Under the new regulations, ALJs are no longer required to give deference to any medical opinion, including treating source opinions. id. Instead, the agency considers several factors. 20 C.F.R. §§ 404.1520c(a), 416.920c(a). These are: supportability, consistency, relationship to the claimant, specialization, and “other factors.” 20 C.F.R. §§ 404.1520c(c)(1)-(5), 416.920c(c)(1)-(5). The “most important” factors in the evaluation process are supportability and consistency. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). The supportability factor considers the degree of relevant “objective medical evidence and supporting explanations” relied on by a medical source to support their opinion. 20 C.F.R. §§ 404.1520c(c)(1), 416.920c(c)(1). The consistency factor analyzes how consistent the medical opinion is with other medical and non-medical evidence in the record. 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2).
Under this framework, the ALJ must “articulate . . . how persuasive [they] find all of the medical opinions” from each doctor or other source. 20 C.F.R. §§ 404.1520c(b), 416.920c(b)(2). In doing so, the ALJ is required to explain how supportability and consistency were considered and may explain how the other factors were considered. 20 C.F.R §§ 404.1520c(b)(2), 416.920c(b)(2). When two or more medical opinions or prior administrative findings “about the same issue are both equally well-supported . . . and consistent with the record . . . but are not exactly the same,” the ALJ is required to explain how the other factors were considered. 20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3). “Even under the new regulations, an ALJ cannot reject an examining or treating doctor's opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence.” Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022).
In assessing Plaintiff's physical conditions, the ALJ considered the medical opinions of state agency medical consultants, independent expert Dr. Robert Smiley, and treating providers FNP Eileen McElligott and Jonas Oltman, DO. Tr. 33-35. The ALJ found the state agency consultants persuasive, Dr. Smiley “generally not persuasive,” FNP McElligott not persuasive, and Dr. Oltman not persuasive. Tr. 33-35. In assessing Plaintiff's psychological conditions, the ALJ considered the medical opinions of state agency psychological consultants and treating psychiatrist Dr. Joel Rice. Tr. 35. The ALJ found the state agency consultants persuasive and Dr. Rice not persuasive. Tr. 35. The Court now reviews the ALJ's analysis of each opinion for which Plaintiff raises a challenge.
A. Jonas Oltman, DO
On October 12, 2017, Dr. Oltman completed a physical residual functional capacity report on Plaintiff. Tr. 548-49. The report indicated that Plaintiff could occasionally lift 10 pounds and frequently lift 10 pounds, that he could stand or walk for less than 2 hours in an 8-hour workday, that he could sit for about 6 hours in an 8-hour workday, and that his ability to push and pull was limited in his upper and lower extremities. Tr. 548. The report stated that Plaintiff could never climb or balance and could occasionally stoop, kneel, crouch, or crawl. Tr. 548. It also provided that reaching, handling, and feeling were occasional limitations. Tr. 548. The report stated that Plaintiff's diagnoses were myopathy, anxiety, and peripheral neuropathy. Tr. 549. It stated that Plaintiff's conditions were chronic and expected to last for the rest of his life. Tr. 549. It stated that Plaintiff was compliant with treatment and was seeing a psychiatrist. Tr. 549. In the “additional comments” portion, Dr. Oltman wrote: “Patient has had long term history of loss of sensation to legs and muscle loss, chronic pain, as well as extensive psychological hx of anxiety/depression.” Tr. 549.
The ALJ found Dr. Oltman's opinion “not persuasive,” stating: “It is not well supported, as it is essentially provided in a checkbox form with little explanation . . .; cites no objective clinical findings; and provides no basis for the manipulative restrictions given.” Tr. 34. The ALJ also stated that the limitations Dr. Oltman assessed “are not consistent with longitudinal medical record . . . or the claimant's demonstrated functioning[.]” Tr. 34.
Plaintiff argues that the ALJ failed to explain how Dr. Oltman's findings were not supported by objective findings, treatment notes, or the longitudinal record. Pl. Op. Br. 11. Plaintiff is correct that checkbox forms may merit weight where they are supported by treatment records. See Garrison, 759 F.3d at 1014 n.17. Here, the treatment records do not support the checkbox form. Dr. Oltman treated Plaintiff beginning on August 18, 2016, and ending on October 25, 2017. Tr. 545, 630. The ALJ found Dr. Oltman's treatment notes “confusing” and “internally inconsistent.” Tr. 30. In August 2016 and February 2017, Dr. Oltman stated that Plaintiff had muscle wasting or loss of muscles but also that he had full strength in his upper and lower extremities. Tr. 30, 546, 535. At no time did Dr. Oltman assess Plaintiff at less than full strength in his extremities. In addition, while a January 2017 treatment note states that Plaintiff had worsening pain throughout the day in his muscles, the treatment note from October 2017 states that Plaintiff started medication that better controlled his pain. Tr. 537, 527. The ALJ reasonably discounted Dr. Oltman's assessment of Plaintiff's postural and manipulative limitations because they were not supported by his treatment records.
Nor did the ALJ err in finding that Dr. Oltman's assessed physical limitations were inconsistent with the longitudinal medical record. The ALJ relied on several neuromuscular exams between 2016 and 2020 by other providers showing normal motor functioning. Tr. 29 (citing Tr. 513, 554, 557, 569, 660, 736). The ALJ also noted that other exams during the same time period showed that Plaintiff had “normal muscle bulk.” Tr. 30 (citing Tr. 554, 557, 569). The ALJ was partially incorrect, as one of the appointment notes on which he relied in fact stated that Plaintiff had “[d]ecreased muscle mass in all muscles in body.” Tr. 557. But even this note found full strength for all muscles. Tr. 557-58. The ALJ's conclusion that the longitudinal record does not support Dr. Oltman's assessed limitations is supported by substantial evidence.
The ALJ also found that Dr. Oltman's opinion was inconsistent with Plaintiff's activities. Plaintiff argues that the ALJ overstated his activity level and failed to identify any inconsistencies. Pl. Op. Br. 12. As discussed above, the ALJ validly discounted Plaintiff's testimony on his mobility limitations based on his activities. Supra at 16. For similar reasons, the ALJ could properly discount Dr. Oltman's checkbox opinion. In sum, the ALJ did not err in discounting Dr. Oltman's opinion.
B. Robert Smiley, MD
Independent medical expert Dr. Smiley testified at Plaintiff's hearing in March 2020. Tr. 72-80. Dr. Smiley testified about Plaintiff's physical conditions. Dr. Smiley testified that Plaintiff may meet the criteria of Listing 1.04A for spine disorders but that there was no identified etiology for his fatigue and weakness. Tr. 74, 76. He also testified that Plaintiff should be limited to sedentary work. Tr. 80.
The ALJ found Dr. Smiley's testimony and opinion “generally not persuasive.” Tr. 34. The ALJ stated that the testimony was “riddled with inconsistencies.” Tr. 34. The ALJ pointed to several inconsistencies. First, Dr. Smiley initially stated that Plaintiff's degenerative disc disease was non-severe but upon further questioning suggested it could meet the severity criteria under listing 1.04 for spine disorder. Tr. 74, 76. Dr. Smiley stated that in reviewing the record he did not see “evidence of true radiculopathy.” Tr. 74. He later stated that Plaintiff may have true radiculopathy. Tr. 77. Second, Dr. Smiley testified he could find no medically determinable impairment associated with Plaintiff's weakness and fatigue, Tr. 74, but also that Plaintiff's symptoms limited him to sedentary work, Tr. 80.
The ALJ agreed with Dr. Smiley's conclusion that there is no medically determinable impairment associated with Plaintiff's reports of chronic weakness or fatigue and agreed with his statement that the medical evidence was not consistent with radiculopathy. Tr. 34. The ALJ found the rest of Dr. Smiley's testimony “too equivocal and inconsistent” to be persuasive. Tr. 34.
The ALJ did not err in finding Dr. Smiley's testimony largely unpersuasive. Dr. Smiley did not state a firm position on Plaintiff's diagnoses and speculated about the cause of his fatigue, weakness, and memory loss. Tr. 72-73. The ALJ correctly observed that Dr. Smiley frequently changed his opinion upon further questioning. Tr. 34. Dr. Smiley appeared less than familiar with the record. Tr. 78. He could not say why Plaintiff was skinny. Tr. 79. At one point, Dr. Smiley stated, “I don't know what's going on in this man,” in reference to Plaintiff. Tr. 80. Dr. Smiley limited Plaintiff to sedentary work despite not identifying an underlying medical condition. Tr. 80. Substantial evidence supports the ALJ's assessment of Dr. Smiley's testimony.
C. Joel Rice, MD
Dr. Rice, Plaintiff's treating psychiatrist, testified at the March 2020 hearing. Tr. 35. Dr. Rice completed a mental residual functional capacity assessment of Plaintiff on January 22, 2020. Tr. 646-649. Dr. Rice assessed severe limitations in Plaintiff's ability to remember locations and work-like procedures and his ability to understand and remember detailed instructions. Tr. 646. He assessed severe limitations in Plaintiff's ability to carry out detailed instructions, maintain attention and concentration for extended periods, and sustain an ordinary routine without special supervision. Tr. 646. He assessed marked limitations in Plaintiff's ability to work within a schedule, maintain regular attendance, be punctual, and work in coordination with others without becoming distracted. Tr. 646. He assessed a severe limitation in Plaintiff's ability to complete a normal workweek without interruption from psychologically based symptoms and work without an unreasonable number of breaks. Tr. 647. Dr. Rice also assessed marked or moderate limitations in areas relating to Plaintiff's social interaction and adaption. Tr. 647.
With respect to the “B” criteria of mental listings, Dr. Rice assessed marked limitations in the areas of understanding, remembering, or applying information; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Tr. 648. He assessed a moderate limitation in the area of interacting with others. Tr. 648. With respect to the “C” criteria, Dr. Rice indicated that Plaintiff has a residual disease process that resulted in such marginal adjustment that even a minimal increase in mental demands or change in environment would be predicted to cause Plaintiff to decompensate. Tr. 648. Dr. Rice indicated that Plaintiff was likely to be unproductive at work over 30% of the time and that he was likely to miss four or more days per month. Tr. 649. In the comment portion of the form, Dr. Rice stated that Plaintiff was extremely sensitive to stress, which affected his depression, anxiety, and cognition. Tr. 649.
At the hearing, Dr. Rice testified that Plaintiff's agoraphobia affected him “on a very regular basis.” Tr. 83. He testified that due to his anxiety, Plaintiff could look very different at different visits. Tr. 84. He testified that Plaintiff's anxiety appeared to increase with stress. Tr. 84. He testified that Plaintiff exhibited tremors and wild eyes. Tr. 84. He testified that changes in thyroid level due to Plaintiff's Hashimoto's thyroiditis could cause fluctuations in mood and energy. Tr. 85. He testified that Plaintiff's concentration was “not good.” Tr. 85. He stated that Plaintiff tended to ramble when speaking with him. Tr. 86. He testified that Plaintiff went to therapy every two to four weeks. Tr. 88. He testified that a more intensive course of treatment would be better for Plaintiff but that this was difficult in a rural area. Tr. 88. He testified that he had conducted objective testing of Plaintiff's executive function and concentration and found moderate limitations. Tr. 89. He stated that the testing he did depended on Plaintiff's reporting more than direct observation. Tr. 89-90. He stated that his chart notes were often less detailed due to his workload and his practice's system, but that patient charts contained more detailed information. Tr. 90-91.
In December 2020, Dr. Rice provided an opinion letter stating that Plaintiff's anxiety had improved but was still pronounced. Tr. 822. The letter also opined that Plaintiff's “chronic fatigue, psychic and physical anergia, stress sensitivity and fear driven avoidance have not improved.” Tr. 822. He stated that the exact cause of the problem was unknown. Tr. 822. He opined that Plaintiff was severely disabled and that the disability was likely to persist. Tr. 822.
The ALJ found Dr. Rice's opinions not persuasive. Tr. 35. He stated that the medical source statement was primarily a checkbox form with limited explanation, and that the explanation provided relied entirely on Plaintiff's self-reports. Tr. 35. The ALJ found the assessment inconsistent with Dr. Rice's treatment notes, which reflected mostly normal mental status exams. Tr. 35. The ALJ also noted that in 2012, Dr. Rice assessed Plaintiff as markedly to extremely limited, and that Plaintiff then engaged in substantial gainful activity between 2014 and 2016. Tr. 35. The ALJ stated that Dr. Rice's testimony at the hearing did not significantly add to his written opinion. Tr. 35. He found the testimony inconsistent with the record, pointing to objective testing and mental status exam findings that were not documented in Dr. Rice's treatment notes. Tr. 35. The ALJ also noted that the frequency of therapy Dr. Rice described was inconsistent with Plaintiff's testimony. Tr. 35. Finally, the ALJ observed that Dr. Rice had characterized Plaintiff's depression as “largely in remission.” Tr. 35. The ALJ found Dr. Rice's December 2020 letter “inherently neither valuable nor persuasive” because it opined on the ultimate issue of disability. Tr. 35.
The ALJ partially erred in discounting Dr. Rice's first written opinion on the basis that it was primarily a checkbox form and was inconsistent with the treatment records. Checkbox forms may merit weight where they are supported by treatment records. SeeGarrison, 759 F.3d at 1014 n.17. Here, in addition to treatment records, Dr. Rice provided spoken testimony.
The Court first considers whether the ALJ properly discounted Dr. Rice's testimony at the hearing. The ALJ discounted Dr. Rice's testimony because it added little to the written opinion and was inconsistent with the treatment notes in several respects. Tr. 35. However, the inconsistencies the ALJ identified are in fact information to which Dr. Rice testified that is not documented in the treatment notes, rather than a contradiction with those notes. Tr. 35. Dr. Rice explained at the hearing that the results of tests would show up in his chart but not his chart notes. Tr. 90. He testified that this was how his practice's medical record system worked. Tr. 90. He testified that his chart notes were brief and used to jog his memory. Tr. 90. He testified that his practice had so many patients that he could not take more detailed notes. Tr. 90. This explanation is reasonable. To the extent that the ALJ identified actual contradictions between the treatment notes and Dr. Rice's testimony, or either of them and his checkbox form, it would be reasonable to discount his opinion.It was not reasonable for the ALJ to discount Dr. Rice's medical opinion because his spoken testimony supplemented his treatment notes.
For example, the ALJ correctly observed that Dr. Rice's checkbox form lists several severe limitations in areas for which Dr. Rice testified he found moderate impairments. Tr. 35, 89, 646.
The ALJ also erred in concluding that Dr. Rice's testimony did not significantly add to his written opinion. Tr. 35. Dr. Rice's testimony provided specific details from his appointments with Plaintiff, such as observations of Plaintiff's appearance, demeanor, and manner of speaking at his appointments. Tr. 84-86. Such evidence permitted the ALJ to assess whether the checkbox opinion was supported by Dr. Rice's knowledge of Plaintiff's conditions. For the same reason, the ALJ erred in concluding that Dr. Rice relied entirely on Plaintiff's self-reports. Tr. 35. Ultimately, a remand is necessary for the ALJ to evaluate the extent to which Dr. Rice's treatment notes and testimony combined support the checkbox opinion.
The ALJ also discounted Dr. Rice's 2020 checkbox opinion based on a medical opinion Dr. Rice provided in 2012 that overstated Plaintiff's limitations. See Tr. 35, 493-94. This was error. First, the 2012 opinion predates Plaintiff's alleged onset date in his present claim by several years. Tr. 18 (alleged onset date is May 18, 2016). Second, the listed diagnosis is “PTSD,” whereas here Plaintiff relies on several other conditions. Tr. 494. Third, as the Ninth Circuit has repeatedly admonished, a claimant's mental health symptoms may wax and wane over time, and the ALJ must not focus on isolated periods of improvement. Garrison, 759 F.3d at 1017. Dr. Rice's 2012 checkbox opinion is not relevant to an assessment of his 2020 checkbox opinion.
Finally, the ALJ erred in rejecting Dr. Rice's December 2020 letter solely because it opined on the ultimate issue of disability. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“In disability benefits cases such as this, physicians may render medical, clinical opinions, or they may render opinions on the ultimate issue of disability-the claimant's ability to perform work.”). The ALJ could, of course, reject this opinion letter, but he was required to give a reason supported by substantial evidence. Seeid.
In sum, the ALJ erred in discounting both Dr. Rice's checkbox opinion and Dr. Rice's opinion letter.
D. Eileen McElligott, FNP
FNP McElligott completed two medical reports on Plaintiff, one in February 2020 and one in October 2020. Tr. 704-06, 765-67. The February 2020 report lists diagnoses (Hashimoto's thyroiditis, fibromyalgia, anxiety, and neuropathy) and symptoms (chronic back pain, numbness in legs, legs giving out when walking upstairs, fatigue). Tr. 704. It states that Plaintiff must lie down every two to three hours. Tr. 704. It states that Plaintiff's fibromyalgia is reasonably likely to cause him pain and that no cure exists at this time. Tr. 704. The report indicates that work on a regular and continuous basis would cause Plaintiff's condition to deteriorate due to his chronic fatigue and anxiety. Tr. 705. It states that Plaintiff would miss four or more days of work per month on average. Tr. 705. It states that Plaintiff can perform sedentary work. Tr. 705. It states that he does not have manipulative limitations in his upper extremities. Tr. 705. It states that Plaintiff would likely be unproductive for over 30% of a 40-hour workweek. Tr. 706. The October 2020 report is largely identical. Tr. 765-67.
The ALJ found FNP McElligott's opinion “not persuasive.” Tr. 34. The ALJ stated that the reports “provide little evidence of any supporting objective findings, essentially listing only diagnoses [], the claimant's self-reported symptoms, and brief notes as to treatment.” Tr. 34. The ALJ also stated that the reports “rely heavily on the diagnosis of fibromyalgia, which is not established as a medically determinable impairment[.]” Tr. 34. Finally, the ALJ stated that the limitations in the report were not consistent with the longitudinal record or Plaintiff's activities of daily living. Tr. 34.
Plaintiff argues that the ALJ ignored evidence of his diagnoses and misunderstood the nature of his claim and the evidence available. Pl. Op. Br. 17. Plaintiff does not challenge the ALJ's finding that fibromyalgia was not established as a medically determinable impairment. FNP McElligott's reports list fibromyalgia as Plaintiff's only condition that is reasonably likely to cause pain. Tr. 704, 765. The ALJ reasonably discounted the reports on this basis.
FNP McElligott's medical reports are largely supported by her treatment notes and those of Dr. Jennifer Poste, with whom she worked to provide care to Plaintiff. Plaintiff established care with FNP McElligott and Dr. Poste in January 2018. Tr. 584. The treatment note lists Hashimoto's thyroiditis and states that Plaintiff reported feeling “terrible” with “increasing anxiety.” Tr. 586. He had a history of chronic muscle pain and anxiety and depression. Tr. 586. He was “extremely thin” for his height and obviously distressed. Tr. 586. When he first saw Dr. Poste in January 2018, Plaintiff reported that he had been “crashing in the middle of the day.” Tr. 589. His fatigue had been progressively worsening since 2016. Tr. 589. However, he appeared well-nourished and well-developed. Tr. 590. FNP McElligott referred Plaintiff to a sleep study in March 2018 because he was “exhausted all the time.” Tr. 618. He appeared “very tired” at the appointment. Tr. 618. At an appointment in December 2019, FNP McElligott wrote that Plaintiff's neuropathy had worsened and that he had chronic fatigue. Tr. 696. In February 2020, Plaintiff reported a “flare” in his symptoms, which led him to “exhaustion and myalgias.” Tr. 734. In September 2020 Plaintiff had to go to the emergency room because of dizziness and chest pain when his anxiety worsened after increased stress. Tr. 745. He had been weaning off diazepam, but due to his condition, FNP McElligott restarted it. Tr. 745. These records support the symptoms and limitations in FNP McElligott's opinions, such as fatigue, numbness in legs, and the need to rest. Tr. 704-05, 765.
The ALJ concluded that the longitudinal record did not support a limitation to sedentary work with significant time off-task and absenteeism because the record reflects a “lack of objective evidence of radiculopathy; minimal conservative treatment; mental status exams that were largely normal.” Tr. 34. The ALJ's analysis ignores FNP McElligott's emphasis on Plaintiff's fatigue, which she mentions multiple times throughout her medical opinion. Tr. 70405, 765. Plaintiff's fatigue is also supported by the treatment notes, as just discussed. Further, as stated above, the ALJ erred in concluding that Plaintiff's treatment of his physical conditions was conservative. Supra at 20-21. Finally, as discussed above, the ALJ erred in his assessment of Plaintiff's mental health conditions. Supra at 24-26.
The ALJ also relied on Plaintiff's activities in discounting FNP McElligott's assessment. Tr. 34. FNP McElligott stated that Plaintiff “struggles with basic ADL's - One day he can work 8 hours - but requires 3-4 days to recover from the 8 hour work day.” Tr. 705, 766. She also stated that Plaintiff needed to lie down and rest every 2-3 hours. Tr. 704, 765. As discussed above, the ALJ took Plaintiff's testimony about his ability to perform his activities of daily living out of context, ignoring the ways in which Plaintiff struggles to perform them. Supra at 17. Further, the ability to do household chores such as taking out the trash or unloading the dishwasher is not comparable to the ability to complete an 8-hour workday. These activities suggest that Plaintiff's mobility limitations may be less severe than claimed, but have no bearing on Plaintiff's stamina or energy levels over the course of a full day. SeeMal Im K. v. Comm'r ofSoc. Sec., No. 3:20-CV-05743-BAT, 2021 WL 252237, at *3 (W.D. Wash. Jan. 26, 2021) (holding that medical providers' observations about the plaintiff's cognitive abilities were not facially inconsistent with “behavioral limitations such as attendance[.]”).
In sum, the ALJ did not err in discounting FNP McElligott's opinion to the extent that it relied on the diagnosis of fibromyalgia as the cause of Plaintiff's pain, but he erred in otherwise rejecting the opinion.
IV. Step Three Determination
Plaintiff argues that the ALJ erred in failing to find him disabled at step three. Pl. Op. Br. 18. At step three, the Commissioner determines whether the claimant's impairments, singly or in combination, meet or equal “one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d).
To meet a listed impairment, a claimant must establish that he or she meets each characteristic of a listed impairment relevant to his or her claim. To equal a listed impairment, a claimant must establish symptoms, signs and laboratory findings “at least equal in severity and duration” to the characteristics of a relevant listed impairment, or, if a claimant's impairment is not listed, then to the listed impairment “most like” the claimant's impairment.Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). “A generalized assertion of functional problems is not enough to establish disability at step three” id. at 1100.
“[I]n determining whether a claimant equals a listing under step three of the Secretary's disability evaluation process, the ALJ must explain adequately his evaluation of alternative tests and the combined effects of the impairments.” Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). “A boilerplate finding is insufficient[.]” Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). Furthermore, “an ALJ must consider all the relevant evidence in the record and may not point to only those portions of the records that bolster his findings.” Sheena H. v. Kijakazi, No. 4:20-CV-05198-MKD, 2022 WL 4596661, at *6 (E.D. Wash. Aug. 10, 2022) (citing Holohan v.Massanari, 246 F.3d 1195, 1207-08 (9th Cir. 2001)).
Plaintiff challenges the ALJ's analysis of his spine disorder, depression, and anxiety. Plaintiff argues that the ALJ should have found him disabled under Listings 1.04A, 12.04, and 12.06. Pl. Op. Br. 18-19. The former Listing 1.04A covers spine disorders. Sheena H., 2022 WL 4596661, at *4. Listing 12.04 covers depressive disorders. Listing 12.06 covers anxiety disorders.
According to Plaintiff, “the ALJ made little more than summary findings that the claimant's activity level exhibited less than marked limitations in the ‘paragraph B' criteria.” Pl. Op. Br. 18. Defendant counters that the ALJ “supported his reasoning with specific analysis and citation to the record.” Def. Br. 12. Defendant is correct. For each area of functioning, the ALJ provided examples of activities in which Plaintiff engaged that supported his findings. Tr. 25-26. The ALJ cited to the record and Plaintiff's testimony. Tr. 25-26.
While the ALJ did provide reasoning, much of that reasoning is erroneous. The ALJ erred in finding that Plaintiff's ability to understand, remember, or apply information was only mildly limited. Tr. 25. As discussed above, Plaintiff struggled with numerous cognitive tasks, including recall tasks and basic math, when his abilities were tested. Tr. 625-26. The ALJ overstated Plaintiff's ability to perform many of his daily activities, including managing his personal care, medications, and appointments. Supra at 17. For similar reasons, the ALJ erred in finding that Plaintiff has only moderate limitations in his ability to concentrate, as he relied on much of the same evidence in making his finding. Tr. 26. The same is also true for the ALJ's conclusion that Plaintiff has only moderate limitations in the ability to adapt or manage himself. Tr. 26.
The ALJ also erred in finding that Plaintiff had only moderate limitations in interacting with others. Tr. 25. The ALJ recognized that Plaintiff reported having “minimal to no social activities, significant anxiety in social situations, difficulties leaving the house, and problems getting along with others because of anxiety/irritability.” Tr. 25. Balanced against this testimony, the ALJ relied on the following: (1) Plaintiff lives with his wife and daughter, (2) Plaintiff goes out on his own, including to the store, appointments, and church, and (3) Plaintiff sells items on eBay. Tr. 25-26. Regarding (1), living with immediate family is not enough to find limitations only moderate, as interacting with close family is not the same as interacting with strangers or coworkers. Regarding (2), Plaintiff indicated that he only went to the store if he was mentally clear and that he did not engage in social activities outside of activities with family. Tr. 417-18. Regarding (3), Plaintiff's ability to sell items over the internet, which requires no real-time or face-to-face interaction, does not point to a less severe limitation in social interactions. In short, in assessing the ‘paragraph B' criteria, the ALJ relied on activities that were taken out of context, that Plaintiff did not perform well, or that do not point to the level of limitation the ALJ found. A remand is necessary for the ALJ to perform a new analysis.
Notably, in formulating the RFC, the ALJ found that Plaintiff “can have no contact with the public.” Tr. 26.
Plaintiff also argues that the ALJ failed to evaluate the “paragraph C” criteria. Pl. Op. Br. 18. The ALJ stated, “I have also considered whether the ‘paragraph C' criteria are satisfied. In this case, the evidence fails to establish the presence of the ‘paragraph C' criteria.” Tr. 26. Plaintiff is correct that the ALJ provides no analysis to explain his conclusion. Defendant asserts that the Court should decline to address Plaintiff's argument because it was not fully briefed. Def. Br. 13. As the ALJ manifestly provided no explanation supporting his ‘paragraph C' finding, the Court concludes that Plaintiff has sufficiently briefed this issue. A remand is needed for the ALJ to provide reasoning to support his conclusion.
Next, Plaintiff argues that “[t]he ALJ failed to address the claimant's treatment notes and examination findings tending to support disability at step three.” Pl. Op. Br. 18. A remand is needed on Listings 12.04 and 12.06. Plaintiff relies on the medical opinion of Dr. Rice, his treating psychiatrist. Pl. Op. Br. 18. Dr. Rice indicated marked and severe limitations in many of the relevant areas and indicated that Plaintiff met the ‘paragraph B' and ‘paragraph C' criteria. Tr. 646-48. As discussed above, the ALJ erred in his assessment of Dr. Rice's opinion. Supra at 36-38. On remand, the ALJ should re-evaluate Dr. Rice's opinion before performing a new analysis of Listings 12.04 and 12.06.
Plaintiff asserts that the ALJ erred in applying Listing 1.04A by incorrectly requiring all elements to be met throughout the entire period. Pl. Op. Br. 18. Plaintiff is correct that all elements need not be met for the entire period. The regulations do state that the impairment “must have lasted or must be expected to last for a continuous period of at least 12 months.” 20 C.F.R. §§ 404.1520(a)(4)(iii), (d); 404.1509.
The ALJ stated that “the objective medical evidence does not establish that claimant's cervical-thoracic spine degenerative disc disease causes nerve root compression characterized by motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss” as required by Listing 1.04A. Tr. 25. The ALJ noted that some physical exams showed muscle atrophy and decreased strength or sensation in Plaintiff's lower extremities, but that most of the exams showed “largely normal findings.” Tr. 25.
In the objective component of his visit notes, Dr. Oltman frequently documented significant muscle atrophy, occasionally documented muscle weakness, and did not document sensory or reflex loss. Tr. 535 (showing strength as 5/5 despite “almost complete loss of calf muscles”), 537-38 (noting muscle wasting and generalized weakness), 539-40 (noting muscle atrophy and leg weakness), 541-42 (noting atrophy but not weakness), 543-44 (noting muscle wasting but not weakness), 546 (noting significant muscle wasting in lower extremities and also full muscle strength). Other providers generally found the same. Tr. 513 (finding “no evidence of injury, normal range of motion” and “no motor/sensory deficits”), 554 (finding “normal muscle bulk” and “normal sensation”), 693 (finding arthralgias and myalgias but no back pain or gait problem), 695 (finding arthralgias and myalgias but no back pain or gait problem).
The ALJ is correct that Plaintiff's exams generally reflect normal reflexes and intact sensation. Tr. 25. One exam in April 2017 did conclude that “[d]eep tendon reflexes in the upper and lower extremities are brisk throughout but symmetrical with absent achilles reflexes bilaterally.” Tr. 558. Another in March 2020 found “slight diminished light reflex bilateral” and intact sensation. Tr. 736. The nerve conduction study of Plaintiff done in January 2020 found that his sensation was intact. Tr. 699. In short, while the record contains ample evidence of muscle atrophy, there is only minimal evidence that it was accompanied by sensory or reflex loss as required by Listing 1.04A. The ALJ's conclusion that Plaintiff did not meet the criteria of Listing 1.04A is supported by substantial evidence.
Plaintiff also relies on Dr. Smiley's testimony. Pl. Op. Br. 18. The ALJ properly discounted Dr. Smiley's testimony on this point. Supra at 32-33.
V. Step Five Determination
Plaintiff asserts that the testimony of the vocational expert (“VE”) was based on an incomplete hypothetical. Pl. Op. Br. 20. If the hypothetical does not list all limitations, the VE's “testimony has no evidentiary value to support a finding that the claimant can perform jobs in the national economy.” DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991).
According to Plaintiff, the hypothetical lacked the following limitations: “off task more than 10% of the time, absent more than six to eight days per year, the need to lie down or elevate one's legs during the day, the need for unscheduled breaks, or limited to occasional reaching, handling, and fingering.” Pl. Op. Br. 20. As discussed above, the ALJ committed legal errors in assessing the severity of Plaintiff's conditions and evaluating Plaintiff's testimony and the medical opinions of Dr. Rice and FNP McElligott. A resolution of these issues is needed to determine whether the hypothetical posed to the VE was complete.
VI. Remand
Plaintiff asks the Court to credit the above-described evidence as true and remand this case for payment of benefits. Pl. Op. Br. 21. To determine whether it is appropriate to remand for payment of benefits or for further proceedings, the Ninth Circuit uses a three-part test. Garrison, 759 F.3d at 1020; Treichler v. Comm'r Soc. Sec. Admin., 775 F.3d 1090, 1100 (9th Cir. 2014). First, the ALJ must fail to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion. Garrison, 759 F.3d at 1020. Second, the record must be fully developed, and further administrative proceedings would serve no useful purpose. id. Third, if the Court remands the case and credits the improperly discredited evidence as true, the ALJ would be required to find the claimant disabled. id. To remand for an award of benefits, each part must be satisfied. id. The “ordinary remand rule” is “the proper course,” except in rare circumstances. Treichler, 775 F.3d at 1101.
Here, the ALJ failed to provide legally sufficient reasons to reject Plaintiff's testimony and the medical opinions of Dr. Rice and FNP McElligott. The Court finds that further proceedings, rather than a remand for benefits, would be useful. The record is not “free of conflicts, ambiguities, or gaps.” Leon v. Berryhill, 880 F.3d 1041, 1047 (9th Cir. 2017). Exercising its discretion, the Court finds it is appropriate to remand this case for further proceedings so that the ALJ may properly consider and evaluate the evidence.
CONCLUSION
The Commissioner's decision is REVERSED and REMANDED for administrative proceedings.
IT IS SO ORDERED.