Black v. Saul

• Court: District Court, S.D. California
• Decided: February 8, 2022
• Docket: 3:20-cv-00772
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KATHLEEN BLACK, Case No.: 20cv00772-NLS

12 Plaintiff, ORDER: 13 v. (1) GRANTING PLAINTIFF’S 14 ANDREW SAUL, Commissioner of MOTION FOR SUMMARY Social Security, 15 JUDGMENT; and Defendant. 16 (2) DENYING DEFENDANT’S 17 MOTION FOR SUMMARY JUDGMENT 18

19 [ECF Nos. 16, 17]

20 Kathleen Black (“Plaintiff”) brings this action under the Social Security Act, 42 21 U.S.C. § 405(g), and seeks judicial review of a final decision by the Commissioner of 22 Social Security (“Commissioner”) denying her application for supplemental security 23 income (“SSI”) based on disability under Title XVI of the Social Security Act (“the 24 Act”), 42 U.S. C. §§ 1381 et seq. The parties filed cross-motions for summary judgment. 25 ECF Nos. 16, 17. Plaintiff filed a Reply. ECF No. 18. After considering the papers 26 submitted, the administrative record, and the applicable law, for the reasons set forth 27 below, the Court GRANTS Plaintiff’s motion for summary judgment, DENIES 28 1 Defendant’s motion for summary judgment, and REMANDS to the Commissioner for 2 further proceedings consistent with this order.1 3 I. BACKGROUND 4 A. Procedural History 5 Plaintiff filed a Title II application for Social Security Disability Insurance on 6 January 13, 2017. Administrative Record (“AR”) 164. She alleged an inability to work 7 since January 1, 2017, due to traumatic brain injury, PTSD, post-concussion syndrome, 8 memory/cognitive issues, sensitivity to light, balance issues, vision problems, and 9 migraines. AR 164-172, 200. The Commissioner initially denied Plaintiff’s claim on 10 April 19, 2017, AR 76, and on reconsideration on July 17, 2017. AR 85. Plaintiff then 11 requested a hearing before an Administrative Law Judge (“ALJ”), which was held on 12 December 17, 2018. AR 34. Plaintiff testified at the hearing and she was represented by 13 counsel. Id. An impartial vocational expert also testified at the hearing. Id. On 14 February 19, 2019, the ALJ issued a decision denying Plaintiff’s request for benefits, 15 finding that Plaintiff was not disabled under the Social Security Act. AR 17-33. On 16 February 24, 2020, the Appeals Council denied Plaintiff’s request for review, making the 17 ALJ’s decision the final decision of the Commissioner for the judicial review purposes. 18 AR 6. Plaintiff timely commenced this action in federal court. 19 B. Personal History and Medical Treatment 20 1. Personal History and Self-Reported Symptoms 21 Plaintiff was born on March 8, 1970. AR 164. She was 48 years old at the time of 22 her hearing before the ALJ. AR 36. She has a Bachelor of Arts degree from the 23 University of California, Irvine. Id. She worked for Sony as a sales manager until 2001. 24 AR 37. She married a navy pilot in 2001 and they moved to a base overseas. Id. They 25 were later divorced, but she continued working overseas until 2013 when she returned to 26

27 1 The parties have expressly consented that all proceedings in this case may be heard and finally adjudicated by the undersigned magistrate judge. 28 U.S.C. § 636(c); Fed. R. Civ. 28 1 the United States. AR 37. Shortly thereafter, she got hit by a car. Id. She filed a lawsuit 2 that settled for less than she owed in legal fees and costs. AR 38. 3 Plaintiff testified at the hearing that she uses a service dog because she gets 4 disoriented and confused. Id. She also has a caregiver who comes to her home three 5 days a week for a few hours in the morning to drive her to medical appointments and to 6 do the things in the house that she cannot do. AR 38-39. She claims that she is unable to 7 work because she has difficulty concentrating for long periods of time and she is sensitive 8 to fluorescent lights and certain sounds. AR 40. She also has a problem with migraine 9 headaches. AR 40, 200. Every seven to ten days she gets a “really bad one.” AR 40, 42. 10 She testified that regular Botox injections help with her headaches, but when she has bad 11 ones, she has to lay down or stay in a dark room and sleep. AR 42. 12 C. Medical Providers 13 1. Irlen Institute 14 In June 2014, Plaintiff was referred to the Irlen Institute for “extreme light 15 sensitivity” related to the injuries she suffered in 2013 when she was hit by a car, “landed 16 on her head, and was left unconscious and bleeding for over an hour.” AR 363. She 17 underwent testing that led to a diagnosis of severe visual processing deficits and light 18 sensitivity, a form of learning disability different from an optical problem. AR 364. 19 Visual processing deficit is a condition where the brain can no longer accurately process 20 and interpret visual information due to traumatic brain injury (“TBI”). Id. 21 Plaintiff’s problems improved with “Irlen Spectral Filters;” however, fluorescent 22 and bright lights still triggered nausea, dizziness, disorientation, anxiety, exhaustion and 23 “brain fog,” resulting in difficulty thinking, pulling thoughts together, attending and 24 concentrating. Even with special filters, her ability to function was compromised and 25 made significantly worse by being in bright rooms and rooms with fluorescent lights. Id. 26 Plaintiff was tested using the Irlen Perceptual Scale and Irlen Differential 27 Perceptual Schedule. AR 364. Results demonstrated that she had severe processing 28 difficulties and sensory overload. Id. Her scaled scores were at the top end of the severe 1 range for difficulties processing visual information. Id. Reading, copying, computer use, 2 math calculation, studying, paper and pencil tasks, tracking moving objects, driving, 3 night driving, performance, and ability to function were more difficult in Plaintiff’s 4 condition. AR 366. 5 On August 15, 2018, Plaintiff was seen again at the Irlen Institute. AR 380. 6 Progress notes indicated that although Irlen Spectral Filters helped, Plaintiff still had the 7 following problems: migraines, nausea, dizziness, balance and coordination, light 8 sensitivity, noise sensitivity; cognitive symptoms, including difficulty concentrating and 9 thinking, memory problems, and problems with speaking. Id. Their recommendations 10 for her included: vestibular therapy for balance and coordination; vision reduction 11 therapy; migraine treatments with Botox; Irlen Spectral Filters; a care giver; and a service 12 dog. Id. 13 2. Dr. Dupon 14 On March 6, 2015, Dr. Dupon, a psychiatrist, diagnosed Plaintiff with cognitive 15 and mood disorders due to traumatic brain injury. AR 395. 16 3. Dr. Frishberg (Treating Neurologist) 17 On January 1, 2016, Plaintiff began treatment with Dr. Ben Frishberg at North 18 County Neurology Associates. AR 274. The record contains Dr. Frishberg’s notes from 19 multiple visits over nearly three years. The most notable visits are summarized below. 20 On April 5, 2016, Plaintiff underwent a nerve block and trigger procedure for 21 migraines. AR 310. The doctor also requested approval for Botox. Id. 22 On June 5, 2016, progress notes indicated that Plaintiff’s MRI in February 2015 23 showed microhemorrhage in the right anterior frontal juxtacortical region that is likely 24 secondary to her head injury. AR 299, 311. Dr. Frishberg’s assessment included chronic 25 migraine without aura, intractable, without status migrainousus.2 AR 311. His treatment 26

27 2 Status migrainousus refers to migraine headaches that last as much as 72 hours and that are not responsive to traditional migraine treatment. See 28 1 included nerve blocks, trigger point injections, chemodenervations, Toradol, and a 2 request for authorization for Botox injections, as Plaintiff had failed treatment with 3 amitriptyline, nortriptyline, and propranobol. Id. Plaintiff experienced improvement on 4 Botox; however, she still suffered from photophobia and motion sensitivity. AR 302. 5 Plaintiff continued to struggle with dizziness, nausea, and optokinetic hypersensitivity 6 since her head injury. Id. Notes indicated that Plaintiff may have an underlying 7 vestibular disorder from the head injury because those symptoms had not improved along 8 with improvement in her migraines. Id. 9 On October 6, 2016, Dr. Frishberg administered Botox to Plaintiff for chronic 10 migraines. AR 281-282. He noted greater than seven headache days (7 HA days) a 11 month improvement from baseline and greater than 150 hours of HA improvement from 12 baseline. AR 282.3 13 On December 14, 2016, Plaintiff was seen again for migraines. AR 283. Progress 14 notes indicated that Botox reduced the severity of Plaintiff’s migraines; however, there 15 was no change in headache character. Id. Plaintiff still experienced moderate to severe 16 pain with associated photophobia, phonophobia, and nausea. AR 287. Notes 17 documented her headache intensity prior to Botox as 8/10 on a pain scale with a 18 reduction to 5-7/10 post Botox. The headache duration prior to Botox was 4-24 hours; 19 post Botox was four hours. AR 285. However, at the time of that visit Plaintiff was 20 experiencing a severe migraine with a 10/10 on a pain scale so Dr. Frishberg also 21 administered Toradol and Phenergan IM. AR 286. 22 Progress notes from February 13, 2017, reported that Plaintiff’s headaches as 23 improved, with only 1-3 per month. AR 292-294. She did complain of blurry vision in 24 her left eye since her last Botox treatment. AR 292. 25 On May 18, 2017, records noted that Plaintiff did vestibular exercises at home and 26

27 treatment. 3 Plaintiff’s “baseline” prior to Botox was a migraine headache every day, 30/30. AR 28 1 had less nausea and phonophobia. AR 340-41. Plaintiff was also less sensitive to outside 2 light, but still sensitive to fluorescent lights. Id. She experienced good benefits with 3 migraines from Botox. Id. At that time, her Botox injections were 11 weeks apart. Id. 4 On June 8, 2017, Plaintiff came in for her regular Botox treatment. AR 349. She 5 reported experiencing a flare up of headaches two weeks before the treatment. Id. Her 6 headache frequency was three to four days a month, which was an 85 percent overall 7 improvement. Id. Plaintiff’s headache intensity was usually moderate to severe, and 8 headaches lasted more than four hours. Id. 9 On October 23, 2018, Plaintiff saw Dr. Frishberg for a Botox treatment. At that 10 time, he noted a marked improvement to four to six headache days per month, down from 11 her baseline of thirty days a month. However, he also noted those headaches were 12 moderate to severe in intensity. AR 557. 13 On November 28, 2018, Dr. Frishberg completed a form “Headaches Medical 14 Source Statement.” AR 559-563. Dr. Frishberg diagnosed Plaintiff with post traumatic 15 migraine with severe intensity. AR 559. He identified the clinical signs and symptoms 16 associated with Plaintiff’s headaches as nausea, phonophobia, photophobia, throbbing 17 pain, mood changes, exhaustion, malaise, impaired appetite, and avoidance of activity. 18 Id. Dr. Frishberg further noted the approximate frequency of the migraines at five 19 headaches per month while on Botox, and the approximate duration as four hours. AR 20 560. He opined that Plaintiff’s headaches could reasonably be explained by a history of 21 head injury. Id. He noted that alcohol, bright lights, lack of sleep, noise, and stress 22 triggered Plaintiff’s headaches. Id. He further indicated that bright lights, coughing, 23 straining/bowel movement, moving around, and noise made Plaintiff’s headaches worse. 24 Id. Lying down, taking medication, and being in a quiet place and a dark room made 25 Plaintiff’s headaches better. AR 561. Dr. Frishberg opined that emotional factors 26 contributed “somewhat” to the severity of plaintiff’s headaches. Id. He candidly stated 27 he did not know to what degree Plaintiff can tolerate work stress. Id. He noted she takes 28 her prescribed medications and her impairments have lasted or can be expected to last at 1 least twelve months. Id. 2 Dr. Frishberg also opined that Plaintiff’s headaches caused significant interference 3 with her activities during the day. AR 562. During a headache, she would need an 4 unscheduled four-hour break from working. Id. She would likely be “off task” five 5 percent of a typical workday. Id. He noted Plaintiff’s would have “good days” and “bad 6 days,” and she would be absent from work about two days per month. AR 563. Finally, 7 he observed Plaintiff’s symptoms had been present for the past four years and were much 8 worse before Botox. Id. 9 4. Dr. Thomas Schweller (Consulting/Examining Neurologist) 10 Dr. Schweller examined Plaintiff on April 6, 2017. AR 330. The history portion 11 of his report indicates that Plaintiff had participated in several treatment programs at 12 Scripps Encinitas Outpatient Brain Injury Day Program with follow-up classes at the 13 brain injury program at Scripps College. AR 330. He reviewed Plaintiff’s MRI scans 14 from February 13, 2015, which showed evidence of microhemorrhages in the right 15 anterior frontal brain and some diffuse cortical atrophy, along with left paramedian pons 16 microhemorrhages and subcortical white matter changes in the right frontal lobe. Id. He 17 indicated that those findings were consistent with her prior history of brain trauma. Id. 18 Her complaints at the time of his examination were lapses of memory and attention and 19 increased light sensitivity for which she uses Irlen lenses. Id. He also noted that at times 20 she has increased sound problems. On occasion, she also has problems with balance. Id. 21 Dr. Schweller’s physical examination showed Plaintiff could ambulate without an 22 assistive device, but she had moderate difficulty with tandem walking. AR 331. Plaintiff 23 had easy laughability during the examination, which is consistent with pseudobulbar 24 condition. Id. Plaintiff was wearing Irlen lenses due to marked light hypersensitivity and 25 had increased discomfort with optokinetic testing in both directions. Id. Her motor 26 strength was 5/5 in both the upper and lower extremities and her reflexes were normal. 27 Id. 28 Dr. Schweller’s impressions included closed head injury with traumatic brain 1 injury, with cognitive and mood impairment; balance impairment secondary to central 2 nervous system abnormalities; and Irlen syndrome with scotopic hypersensitivity. AR 3 331-332. 4 In terms of Plaintiff’s “Functional Capacity” Dr. Schweller indicated: 5 From a physical standpoint, there would be no specific limitations in lifting, bending stopping, squatting, kneeling, or crawling. She should avoid 6 unprotected heights and exposure to moving machinery. Her main 7 difficulties are residuals of her traumatic brain injury. There appeared to be some problems with lapses in memory, attention, focus, and probably 8 executive skills and some pseudobulbar features. Id. The exact degree and 9 nature of her cognitive limitations are best defined with formal neuropsychometric testing. AR 332. 10

11 Notably absent from Dr. Schweller’s Report is any discussion of migraine 12 headaches, even though at the time of his examination, Plaintiff was regularly treating with 13 Dr. Frishberg for her migraines. AR 349. 14 5. Dr. Gleason and Dr. Taylor Holmes (State Agency Consultants) 15 Dr. Gleason, the state agency physician on initial review of Plaintiff’s application 16 for benefits, is a plastic surgeon who reviewed Plaintiff’s medical records and determined 17 she was not disabled from working. AR 57-62. Dr. Taylor-Holmes, an internal medicine 18 doctor, similarly reviewed the records on Plaintiff’s request for reexamination. AR 63- 19 74. Neither is a neurologist. Their stated opinions regarding Plaintiff were directed to 20 limitations on physical exertion and exposure to cold, heat, noise, and hazards. They did 21 not address migraine headaches: 22 [C]laimant could frequently climb ramps and stairs but never climb ladders, ropes, and scaffolds . . . could frequently stoop, balance, kneel, and crouch . . . should 23 avoid concentrated exposure to extreme cold, extreme heat and avoid even 24 moderate exposure to noise and hazards. AR 27, 70-71.

25 D. Vocational Expert’s Testimony 26 Vocational Expert (“VE”) John P. Kilcher testified at the hearing. AR 44. 27 The ALJ posed the following hypothetical to the VE: 28 1 a hypothetical claimant age 46 as of the protected filing date with 16 years of education, no past relevant work at SGA. It is opined that this 2 hypothetical claimant can lift and carry 20 pounds occasionally, ten pounds 3 frequently, can stand or walk for six hours out of eight, sit for six, can occasionally climb stairs and ramps, never ropes, ladders and scaffolds, 4 should avoid moderate exposure to loud noise and all exposure to 5 unprotected heights and moving and dangerous machinery.

6 Given those restrictions, the VE testified that there are examples of work the 7 hypothetical claimant could perform, such as a garment sorter, garment folder, and 8 bagger, all classified as light, unskilled work, and all with thousands of positions 9 available nationwide. AR 44-45. 10 Plaintiff’s attorney then modified the ALJ’s hypothetical to include three to four 11 headaches a month, with pain intensity being four to six, that last up to four hours. AR 12 45. Accordingly, the hypothetical claimant would have to either leave work for three to 13 four hours during those days, or not show up to work. Id. Her attorney then asked 14 whether the previously identified jobs would be sustainable. Id. The VE testified: “No. 15 They would not.” Id. 16 II. THE ALJ DECISION 17 A. The Sequential Process 18 To qualify for disability benefits under the Social Security Act, an applicant must 19 show that he or she cannot engage in any substantial gainful activity because of a 20 medically determinable physical or mental impairment that has lasted or can be expected 21 to last at least twelve months. 42 U.S.C. §§ 423(d), 1382(c)(a)(3). The Social Security 22 regulations establish a five-step sequential evaluation to determine whether an applicant 23 is disabled under this standard. 20 C.F.R. §§ 404.1520(a), 416.920(a); Batson v. Comm’r 24 of the Social Security Admin., 359 F.3d 1190, 1194 (9th Cir. 2004). 25 At step one, the ALJ determines whether the applicant is engaged in substantial 26 gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(b). If not, then at step two the 27 ALJ must determine whether the applicant suffers from a severe impairment or a 28 1 combination of impairments. Id. §§ 404.1520(a)(4)(ii), 416.920(c). If the impairment is 2 severe, at step three the ALJ must determine whether the applicant’s impairment or 3 combination of impairments meets or equals an impairment contained under 20 C.F.R. 4 Part 404, Subpart P, Appendix 1. Id. §§ 404.1520(a)(4)(iii), 416.920(d). If the 5 applicant’s impairment meets or equals a listing, he or she must be found disabled. Id. 6 If the impairment does not meet or equal a listing, the ALJ must determine the 7 applicant’s residual functional capacity (“RFC”). 20 C.F.R. §§ 404.1520(a)(4)(iv), 8 416.920(e). Then, the ALJ must determine at step four whether the applicant retains the 9 residual functional capacity to perform past relevant work. Id. §§ 404.1520(a)(4)(iv), 10 416.920(f). If the applicant cannot perform past relevant work, at step five the ALJ must 11 consider whether the applicant can perform any other work that exists in the national 12 economy. Id. §§ 404.1520(a)(4)(v), 416.920(g). 13 The applicant carries the burden to prove eligibility from steps one through four 14 but the burden at step five is on the agency. Celaya v. Halter, 332 F.3d 1177, 1180 (9th 15 Cir. 2003). Applicants not disqualified at step five are eligible for disability benefits. Id. 16 B. Substance of the ALJ’s Decision 17 At step one, the ALJ found that Plaintiff had not engaged in substantial gainful 18 activity since January 11, 2017, the date of her application for benefits. AR 22. At step 19 two, the ALJ determined Plaintiff’s history of traumatic brain injury with residuals of 20 migraine headaches constituted a severe impairment; however, Plaintiff’s neurocognitive 21 disorder “does not cause more than minimal limitations in the claimant’s ability to 22 perform basic mental work activities and is therefore non-severe.” AR 22-24. At step 23 three, the ALJ found Plaintiff did not have an impairment or combination of impairments 24 that met or medically equaled the severity of one of the listed impairments. AR 24. 25 Specifically, the ALJ found that Plaintiff did not meet or medically equal Listing 11.18, 26 which required either a disorganization of motor function in two extremities resulting in 27 extreme limitation, or a marked limitation in physical functioning in understanding, 28 remembering, or applying information; interacting with others, concentrating, persisting, 1 or maintaining pace; or adopting or managing oneself. Id. 2 Next, the ALJ determined that Plaintiff retained the RFC to perform light work as 3 defined in 20 C.F.R. § 416.967(b). Id. 4 The claimant can lift and carry [twenty] pounds occasionally and ten frequently. The claimant can stand and/or walk for six hours in an eight- 5 hour workday. The claimant can sit for six hours in an eight-hour workday. 6 She can occasionally climb ramps and stairs but should never climb ladders, ropes, and scaffolds. She should avoid moderate exposure to loud noise and 7 all exposure to unprotected heights and moving and dangerous machinery. 8 Id.

9 In making his RFC assessment, the ALJ noted he had considered all of Plaintiff’s 10 symptoms as well as the opinion evidence. Id. He did not, however, include the 11 additional workplace limitations as determined by Dr. Frishberg. 12 At step four, the ALJ determined that Plaintiff had no past relevant work. AR 28. 13 At step five, considering the claimant’s age, education, work experience, and residual 14 functional capacity, the ALJ found that a significant number of jobs existed in the 15 national economy that Plaintiff could perform such as garment sorter, garment folder, and 16 bagger. AR 28. As such, the ALJ concluded Plaintiff is not disabled as defined in the 17 Social Security Act. AR 28-29. 18 III. LEGAL STANDARD OF REVIEW 19 The Social Security Act provides for judicial review of a final agency decision 20 denying a claim for disability benefits. 42 U.S.C. § 405(g). A reviewing court will set 21 aside a denial of benefits only when the ALJ decision is “based on legal error or not 22 supported by substantial evidence in the record.” Trevizo v. Berryhill, 871 F.3d 664, 675 23 (9th Cir. 2017) (quoting Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 24 2003)). Substantial evidence is “more than a mere scintilla” and means “such relevant 25 evidence as a reasonable mind might accept as adequate to support a conclusion.” 26 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019); see Molina v. Astrue, 674 F.3d 1104, 27 1110 (9th Cir. 2012) (quotation and citation omitted). It is a “highly deferential” standard 28 1 of review. Valentine v. Astrue, 574 F.3d 685, 690 (9th Cir. 2009). However, the Court 2 must consider the entire record, weighing both the evidence that supports and the 3 evidence that detracts from the Commissioner’s conclusion, and it “may not affirm 4 simply by isolating a specific quantum of supporting evidence.” Garrison v. Colvin, 759 5 F3d. 995, 1009 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th 6 Cir. 2007)). 7 “The ALJ is responsible for determining credibility, resolving conflicts in medical 8 testimony, and for resolving ambiguities.” Vasquez v. Astrue, 547 F.3d 1101, 1104 (9th 9 Cir. 2008) (internal quotations and citation omitted). If the evidence is susceptible to 10 more than one reasonable interpretation, the agency’s decision must be upheld. Molina, 11 674 F.3d at 1111. It is not the Court’s role to reinterpret or re-evaluate the evidence, even 12 if a re-evaluation may reasonably result in a favorable outcome for the plaintiff. Batson, 13 359 F.3d at 1193. Moreover, the Court may not uphold an ALJ’s decision on a ground 14 not actually relied on by the ALJ. Molina, 674 F.3d at 1121. 15 IV. DISCUSSION 16 Plaintiff contends the ALJ erred by “giving little weight” to the opinion of her 17 treating physician, Dr. Frishberg, regarding her workplace limitations. AR 26-27. Dr. 18 Frishberg opined that due to her migraine headaches, plaintiff would need a four-hour 19 unscheduled break from work once a month; that she would be “off task” five percent of 20 the workday and would miss about two days of work per month. AR 562-563. 21 According to plaintiff, the ALJ should have given Dr. Frishberg’s opinion controlling 22 weight under the then-applicable “treating physician rule.” Had he done so, the 23 vocational expert would have opined she is disabled. AR 44-45. 24 A. The Treating Physician Rule 25 For Social Security applications filed before March 27, 2017,4 the medical opinion 26 4 On January 18, 2017, the SSA revised the regulations that apply to evaluation of 27 medical evidence, effectively abolishing the “treating physician rule” for cases filed on 28 or after March 27, 2017. This means that an ALJ no longer must assign a certain weight 1 of a treating physician is given controlling weight so long as it is well-supported by 2 medically acceptable clinical and laboratory techniques and is not inconsistent with the 3 other substantial evidence in claimant’s medical record. Revels v. Berryhill, 874 F.3d 4 648, 654 (9th Cir. 2017) (quoting 20 CFR §§ 404.1527(c)(2)). Because Plaintiff’s 5 application was filed on January 17, 2017, before the rule change, the treating physician 6 rule applies here. 7 When an ALJ gives a treating physician’s opinion less than controlling weight, the 8 ALJ must do two things. First, the ALJ must consider other factors, including the length 9 of the treatment relationship and the frequency of examination, the nature and extent of 10 the treatment relationship, supportability, consistency with the record, and specialization 11 of the physician. Id. 404.1527(2)-(6); Trevizo, 871 F.3d at 675. Generally, the longer a 12 treating source has treated a claimant, the more weight the ALJ should give to the treating 13 source’s opinion. Id. Further, the more knowledge a treating source has about Plaintiff’s 14 impairments, the more weight his/her opinion deserves. Id. The ALJ should consider the 15 treatment the source provided, along with examinations and testing performed or ordered. 16 Id. A treating source’s opinion deserves more weight if it is supported by the relevant 17 evidence, such as medical signs and laboratory findings. Id. The ALJ should also 18 consider the quality of explanations the source provides for his/her opinion. Id. The 19 failure to consider these factors, by itself, constitutes reversible error. Id. at 676. 20 Second, the ALJ must provide reasons for discounting the treating physician’s 21 opinion. When a treating physician’s opinion is not contradicted by another physician, 22 the ALJ must provide “clear and convincing” reasons for rejecting or discounting the 23 opinion, supported by substantial evidence. Id. at 675. When a treating physician’s 24 opinion is contradicted by another physician, the ALJ must provide “specific and 25 legitimate reasons” for rejecting or discounting the treating physician’s opinion, 26 to a medical practitioner’s opinion. Rather, ALJs are now to “consider” the 27 “persuasiveness” of opinions from all medical sources. 20 C.F.R. § 1520c(a). 28 1 supported by substantial evidence. Id. The ALJ can meet this burden by setting out a 2 thorough summary of the facts and the conflicting medical evidence, stating his or her 3 interpretations and conclusions, and then making findings. Revels, 874 F.3d at 654. 4 B. The ALJ Erred in Rejecting the Opinion of Dr. Frishberg 5 In his one paragraph discussion of Dr. Frishberg’s opinion, the ALJ stated: 6 As for the opinion evidence, in November 2018, Ben Frishberger (sic), 7 M.D., completed a headache medical source statement on the claimant’s behalf. Dr. Frishberger opined the claimant would need a four-hour 8 unscheduled break once a month. He opined the claimant would be off task 9 five percent of the workday and would miss about two days of work per month. (Ex. 11F). The undersigned gives little weight to the opinions of Dr. 10 Frishberger, as they are inconsistent with the objective medical record as a 11 whole. As discussed above, the objective physical examinations and testing of the claimant showed she was not as limited as Dr. Frishberger opined. 12 (Ex.1F, pgs. 16-18, 22-26; 3F; 10F, pgs. 16, 24, 39, 44, 75). The last 13 examination he performed on September 12, 2018 resulted in completely normal findings. Id. On his last visit of October 23, 2018, Dr. Frishberger 14 noted in his records “marked improvement,” 85 percent overall. Id. 15 (Ex.10F, pg. 80). The treatment notes clearly do not support his statement of November 28, 2018, concerning her workplace limitations. (Ex. 11F). 16 Further, Dr. Frishberger did not identify the objective medical evidence he 17 relied upon in rendering his opinion. 18 AR 26 (emphasis added). 19 The ALJ’s rejection of Dr. Frishberg’s opinion was error. First, he erred by failing 20 to consider all the factors he was required to consider in assigning less than controlling 21 weight to that opinion. Specifically, there is no indication that he considered: (1) the 22 length of the treating relationship, (2) the frequency of examination, (3) the nature and 23 extent of the treatment relationship, or the specialization of the physician. 20 C.F.R. 24 404.1527(C)(2)-(6). The failure to consider these factors is error. Trevizo, 871 F.3d at 25 676. Dr. Frishberg is a specialist in neurology. He treated Plaintiff for migraine 26 headaches on at least ten occasions from January 2016 through October 2018. AR 270- 27 320, 333-351, 478-558. He administered nerve blocks, trigger point injections and a 28 variety of medications to treat her headaches, including Botox, amitriptyline, propranolol 1 and Toradol. AR 346. His treatment regimen proved helpful but did not eliminate her 2 migraine headaches altogether. She continued to suffer migraines four to six days a 3 month with moderate to severe intensity even after treatment. AR 567. 4 Next, the ALJ did not give “specific and legitimate reasons” for rejecting Dr. 5 Frishberg’s opinion, let alone “clear and convincing reasons that are supported by 6 substantial evidence.” Bayless v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). In his 7 opinion, the ALJ cites to two visits with Dr. Frishberg as not supporting the limitations he 8 assessed for Plaintiff. First, on the September 12, 2018 visit, the ALJ states that the visit 9 resulted in “completely normal findings.” AR 27. On review, while the record for this 10 visit does indicate that Plaintiff’s migraines were “doing well at this time,” the notes 11 acknowledge that it is usually during the last two weeks between Botox treatments when 12 “headaches begin to peak again.” AR 548. The visit notes also recorded that Plaintiff 13 still had issues with communication and comprehension, even though there were “short 14 periods where she almost feels back to baseline,” and fluorescent light and noise still 15 bothers her. Id. Thus, it is not supported that the findings are “completely normal” on 16 this visit. Second, the ALJ stated that the visit on October 23, 2018 resulted in “marked 17 improvement” of 85% overall. AR 27. However, the notes still indicate that this means 18 4 to 6 headache days a month, of a moderate to severe intensity that last more than 4 19 hours each time. AR 557. Rather than not supporting Dr. Frishberg’s November 28, 20 2018 statement, this is actually entirely consistent with that statement, where Dr. 21 Frishberg noted that Plaintiff has 5 headaches per month on Botox that lasts 4 hours. AR 22 560. Based on this, Dr. Frishberg opined that Plaintiff would therefore need an 23 unscheduled break of 4 hours about once a month and would be absent from work “about 24 two days per month.” AR 562-63. 25 Further, in rejecting Dr. Frishberg’s opinion, the ALJ assigned “significant weight” 26 to the opinion of consulting/examining neurologist, Dr. Thomas Schweller, who stated 27 with regard to limitations that “claimant should avoid unprotected heights and exposure 28 to moving machinery.” AR 27. But Dr. Schweller made no comment about the extent to 1 which recurrent migraine headaches might limit Plaintiff’s ability to work so he does not 2 expressly contradict Dr. Frishberg. Additionally, the ALJ did not adopt all of Dr. 3 Schweller’s opinions as he noted “the objective physical examinations testing of the 4 claimant showed that she was more limited than Dr. Schweller opined.” AR 27. 5 Moreover, the state agency physicians, Dr. Gleason and Dr. Taylor-Holmes, do not 6 specialize in neurology and neither examined the plaintiff, nor addressed her migraine 7 headaches in their reports. The ALJ gave partial weight to the opinions of these 8 physicians5 as they were “mostly consistent with the medical records,” but he similarly 9 disregarded their opinions to the extent they support a residual functional capacity greater 10 than light exertion. AR 27. 11 But, even if the opinions of Dr. Schweller and the state agency physicians were 12 properly viewed as contradicting Dr. Frishberg, the ALJ still must articulate specific and 13 legitimate reasons supported by substantial evidence for discounting the treating 14 physician’s opinion. Trevizo, 871 F.3d at 676. This he did not do. 15 Beginning with the medical evidence, the ALJ states that Dr. Frishberg ‘s opinion 16 “is inconsistent with the objective medical record as a whole,” and “not supported by his 17 treatment notes,” and further that he does not identify the objective medical evidence on 18 which he relies. The record, however, does not support those conclusions. Throughout 19 his chart notes Dr. Frishberg observes that plaintiff has the clinical signs and symptoms 20 associated with migraine headaches such as nausea, phonophobia, photophobia, 21 throbbing pain, mood changes, exhaustion, malaise, impaired appetite, and avoidance of 22 activity. AR 279, 284, 288, 293, 298, 294, 298, 308, 330-331, 492-493, 500-501, 515, 23 and 559. Because migraine headaches cannot be proved with laboratory tests this is the 24 25 5 These doctors opined the claimant could frequently climb ramps and stairs but never 26 climb ladders, ropes, and scaffolds. They opined the claimant could occasionally crawl 27 but could frequently stoop, balance, kneel, and crouch. They opined the claimant should avoid concentrated exposure to extreme cold, extreme heat and avoid even moderate 28 1 kind of objective evidence that is used to support limitations due to migraines. See, e.g., 2 Needham v. Commissioner of Social Security, 2017 WL 4052184, at *11 (D. Or. August 3 8, 2017); Mehrnoosh v. Astrue, 2011 WL 2173809, at *7 (D. Or. June 2, 2011) 4 (migraines are not susceptible to detection and quantification by laboratory testing or 5 medical imaging.); Hua v. Astrue, 2009 WL 524991, *4 n. 2 & 4 (D. Colo. 2009) 6 (“[W]hile laboratory tests cannot prove the existence of migraine headaches, there are 7 medical signs which should be viewed as ‘objective evidence,’” such as “nausea, 8 photophobia, dizzy spells” and “impaired sleep[.]”). 9 Here, the ALJ discounted Dr. Frishberg’s opinion even though Plaintiff had all the 10 telltale signs of migraine headaches and a history of a traumatic brain injury that 11 explained the onset of the headaches. He treated her for nearly three years with a variety 12 of medications for her migraines, some of which proved more successful than others. 13 None eliminated her symptoms altogether. The ALJ noted her objective evidence of 14 improvement with Botox. However, medical notes suggesting improvement should be 15 viewed cautiously: “that a person . . . makes some improvement does not mean that the 16 person’s impairments no longer seriously affect her ability to function in the workplace.” 17 Garrison, 795 F.3d at 1017 (citing Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 18 2001)). Despite her improvement with Botox, Dr. Frishberg opined she would continue 19 to experience migraines on average of five per month with a duration of approximately 20 four hours. AR 559-563. His conclusion that she would need one unscheduled break 21 from work for four hours and would have to be absent from work for two days a month 22 (AR 563) is supported by objective evidence in the record and is not inconsistent with the 23 other objective evidence in the record that documents her physical abilities and 24 limitations when she is not experiencing a migraine headache. Therefore, the ALJ ‘s 25 rejection of that Dr. Frishberg’s opinion was error. 26 C. The ALJ Improperly Discounted Plaintiff’s Assertions Regarding 27 the Severity of Her Symptoms 28 The ALJ must engage in a two-step analysis in determining how much to credit the 1 claimant’s symptom testimony. First, the claimant must show that the impairment can be 2 expected to cause some degree of pain, or other symptoms alleged, and second, if there is 3 no evidence of malingering, the ALJ can reject the claimant’s testimony about the 4 severity of her symptoms only by offering clear and convincing reasons for doing so. 5 Trevizo, 871 F.3d at 678 (citing Garrison, 759 F.3d at 1014-15). This is the most 6 difficult standard to meet in Social Security cases. Id. 7 In her applications and in her hearing testimony, Plaintiff alleged that she is 8 significantly impaired by chronic migraine headaches. AR 40. She testified that even 9 with Botox she has bad headaches every seven to ten days. Id. When she gets a bad 10 headache, it usually lasts all day unless she has a place to lie down in a dark room and try 11 to sleep. AR 42. 12 The ALJ found: 13 After careful consideration of the evidence, the undersigned finds that the claimant’s medically determinable impairment could reasonably be expected 14 to cause some of the alleged symptoms; however, the claimant’s statements 15 concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in 16 the record for the reasons explained in this decision. As discussed above, 17 the claimant’s activities of daily living do not support the subjective complaints by claimant. (Exs. 5E; 2F). 18

19 AR 26. Exhibit 5E is a Report from Plaintiff’s Caregiver, Julio Palan. Exhibit 2F is a 20 report from a consulting psychologist, Dr. Ted Shore. Both observe that Plaintiff’s 21 activities of daily living include taking care of her personal hygiene, some chores in the 22 house and yard, and attending therapy. She generally does not go out of the house 23 without her caregiver or service animal. AR 225-233, 323. An ALJ may consider a 24 claimant’s activities of daily living (ADLs) in determining whether those activities 25 contradict her testimony about her symptoms or functional limitations. Orn v. Astrue, 26 495 F.3d 625, 639 (9th Cir. 2017). But, in this case the ALJ’s finding is completely 27 unsupported, other than his conclusory statement that her symptoms “are not entirely 28 consistent with the medical evidence and other evidence in the record for the reasons 1 explained in this decision.” AR 26. Although Plaintiff testified that she was severely 2 limited while experiencing a bad migraine, she did not say she was precluded from those 3 same activities while not experiencing a migraine. As such, the ALJ’s conclusory 4 statement about Plaintiff’s ADLs being inconsistent with her symptoms and functional 5 limitation testimony falls short of the “clear and convincing” standard. See Needham, 6 2017 WL 4052184 at *7; Orn, 495 F.3d at 639. 7 IV. DISPOSITION 8 Where the ALJ denies benefits and the court finds error, ordinarily, the case must 9 be remanded to the agency for further proceedings before directing an award of benefits. 10 Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017) (citing Triechler v. Comm’r of 11 Soc. Sec. Admin., 775 F.3d 1090 1099 (9th Cir. 2014)). However, where the record is 12 fully developed and the ALJ has failed to provide legally sufficient reasons for rejecting a 13 medical opinion or claimant testimony, and if the evidence were credited as true, the ALJ 14 would be required to find the claimant disabled on remand, the court may remand for an 15 award of benefits. Trevizo, 871 F.3d at 683 (citing Garrison, 759 F.3d at 1019-1020). 16 “The decision whether to remand a case for additional evidence, or simply to award 17 benefits, is within the discretion of the court.” Sprague v. Bowen, 812 F.2d 1226, 1232 18 (9th Cir. 1987) 19 Here, the record is extensive. It totals 563 pages and documents the treatment 20 notes and examining notes of at least six physicians and psychologists. The record also 21 contains plaintiff’s testimony at the hearing before the ALJ and her responses to 22 numerous questionnaires about her physical and mental limitations. Dr. Frishberg’s 23 opinion is fully developed and supported by notes of his nearly three years of treatment 24 relationship with the Plaintiff. As for the second factor, as discussed above, the Court 25 finds that the ALJ failed to provide legally sufficient reasons to reject Dr. Frishberg’s 26 opinion. Finally, the VE answered “no” when asked if a hypothetical claimant would be 27 employable if she needed an unscheduled break of four hours one day a month and two 28 days off work a month as opined by Dr. Frishberg. In other words, if Dr. Frishberg’s 1 || opinion was credited as true, the ALJ would be required to find Plaintiff disabled. Thus, 2 having found the test met, the court credits Dr. Frishberg’s opinion as true and finds it 3 || appropriate to award benefits. Trevizo, 871 F.3d at 683; Garrison, 759 F.3d at 1019- 4 || 1020. 5 Accordingly, the Court GRANTS Plaintiff's motion for summary judgment, 6 || DENIES Defendant’s motion for summary judgment, and REMANDS the case to the 7 |{Commissioner for calculation and payment of benefits. 8 IT IS SO ORDERED. g Dated: February 8, 2022 10 Mite. Z Loe Hon. Nita L. Stormes United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28