1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 No. CV-20-00984-PHX-JJT Stephanie Bozicevic, 10 ORDER Plaintiff, 11 v. 12 Commissioner of Social Security 13 Administration,
14 Defendant. 15 16 Plaintiff Stephanie Bozicevic challenges the partial denial of her Application for 17 Disability Insurance Benefits under the Social Security Act (“the Act”) by Defendant, 18 Commissioner of the Social Security Administration (“Commissioner” or “Defendant”). 19 Plaintiff filed a Complaint (Doc. 1) with this Court seeking judicial review of that partial 20 denial, and the Court now addresses Plaintiff’s Amended Opening Brief (Doc. 26, Pl. Br.), 21 Defendant’s Response Brief (Doc. 28, Def. Br.), and Plaintiff’s Reply. (Doc. 32, Reply.)1 22 The Court has reviewed the briefs and Administrative Record (Doc. 17, AR.), and now 23 reverses the Administrative Law Judge’s (“ALJ”) decision (AR. at 759-90) and remands 24 for further proceedings. 25 26 27 28 1 The Commissioner having shown good cause, the Court accepts and will consider the Commissioner’s untimely Response Brief filed on April 21, 2021. (Doc. 28.) 1 I. BACKGROUND 2 Plaintiff filed an application for Disability Insurance Benefits on March 28, 2014, 3 for a period of disability benefits beginning on June 7, 2013, her alleged onset date. (AR. at 4 197-98.) After a hearing on September 15, 2016, ALJ Christa Zamora issued a written 5 decision denying Plaintiff’s claim on January 12, 2017. (AR. at 9–25.) The Social Security 6 Appeals Council upheld the ALJ’s Denial in a letter dated January 8, 2018 (AR. at 1-6), 7 and Plaintiff sought judicial review on March 8, 2018. (AR. at 849-850.) On November 9, 8 2018, the United States District Court for the District of Arizona reversed the ALJ’s 9 decision and remanded Plaintiff’s claim for a new hearing. (AR. at 854-99.) 10 On November 19, 2019, Plaintiff attended a second hearing presided over by ALJ 11 Carla Waters. (AR. at 793-828.) On May 5, 2020, ALJ Waters issued a partially favorable 12 determination (AR. at 759-90) concluding Plaintiff was disabled from January 29, 2018 to 13 March 26, 2019. (AR. at 771, 783.) For the remainder of the relevant period (June 7, 2013 14 through January 28, 2018 and March 27, 2019 through the date of the decision), the ALJ 15 concluded Plaintiff could perform her past relevant work as a claims administrator as that 16 job is generally performed in the national economy. (AR. at 782-83.)2 Hence, the ALJ 17 found Plaintiff was not disabled under the Act for those periods. (AR. at 772, 782-83.) 18 After Plaintiff exhausted her administrative remedies,3 she once again sought judicial 19 review. (Doc. 1.) 20 The Court has reviewed the medical evidence in its entirety. The pertinent medical 21 evidence will be discussed in addressing the issues raised by the parties. Upon considering 22 the medical records and opinions, the ALJ evaluated Plaintiff’s disability from the period 23 beginning June 7, 2013, through the date of the decision based on the following severe 24 impairments: occipital neuralgia, migraine headaches, cervical disk disease, chronic pain 25 26 2 The ALJ identified no other jobs Plaintiff could perform during the periods of non- disability. (AR. at 782-83.) 27 3 The second Appeals Council denial is missing from the administrative record, but 28 the Commissioner answered and admitted Plaintiff exhausted her administrative remedies. (Doc. 16.) 1 syndrome, myofascial pain syndrome, early degenerative disease in the hands, 2 gastroesophageal reflux disease, and fibromyalgia. (AR. at 765.) Beginning January 29, 3 2018, the effective date of Plaintiff’s disability, the ALJ found claimant suffered from the 4 additional severe impairment of status post left radius fracture. (AR. at 765.) 5 The ALJ’s residual functional capacity (“RFC”) determinations differ between the 6 periods of disability and non-disability. (AR. at 768-69, 772.) For the period of disability, 7 the ALJ found that Plaintiff could perform sedentary work with a limitation to occasional 8 handling and fingering; occasional, forceful grasping; occasional, forceful pinching; 9 occasional overhead reaching; and occasional bending, stooping, and crouching; with an 10 additional limitation to avoiding work around heights or moving machinery. (AR. at 768- 11 69.) The ALJ found Plaintiff’s left arm fracture sustained on January 29, 2018, constituted 12 an additional severe impairment as of that date justifying a limitation to only occasional 13 handling and fingering. (AR. at 768-771.) The vocational expert testified a hypothetical 14 individual limited to occasional handling and fingering could not perform Plaintiff’s past 15 relevant work. (AR. at 826.) The ALJ concluded Plaintiff had not acquired transferable 16 skills to other work and that, during the period of disability, the Medical-Vocational rules 17 directed a finding of disabled. (AR. at 771.) 18 During the periods of non-disability, the ALJ found that Plaintiff could perform 19 sedentary work as defined in the regulations with frequent handling and fingering; 20 occasional overhead reaching; occasional bending, stooping, and crouching; and an 21 additional limitation to avoiding work around heights or moving machinery. (AR. at 772.) 22 In her discussion, the ALJ further noted Plaintiff would be limited to occasional, forceful 23 grasping and pinching during the periods of non-disability.4 At the second hearing, the ALJ 24
25 4 Although ALJ Waters’s RFC finding for the periods of non-disability does not 26 explicitly include occasional, forceful grasping and pinching (AR. at 772), in her discussion of the rationale supporting her RFC, she found the evidence supported such a limitation 27 even during the periods of non-disability. (AR. at 778-79, 780-81.) The Commissioner concedes that while the ALJ did not include this limitation in her RFC for the periods of 28 non-disability, “[e]lsewhere in the decision, the ALJ explain[ed] that Plaintiff could frequently handle and finger, and occasionally engage in forceful grasping and forceful 1 posed a hypothetical question to the vocational expert based on these limitations. (AR. at 2 823-24.) The vocational expert testified an individual with those limitations could perform 3 Plaintiff’s past relevant work as a claims administrator. (AR. at 824.) The ALJ found 4 Plaintiff could perform her past relevant work as a claims administrator during these 5 periods, but identified no other jobs Plaintiff could perform. (AR. at 782-83.) 6 II. LEGAL STANDARD 7 In determining whether to reverse an ALJ’s decision, the district court reviews only 8 those issues raised by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 9 517 n.13 (9th Cir. 2001). The Court may set aside the Commissioner’s disability 10 determination only if the determination is not supported by substantial evidence or is based 11 on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is 12 relevant evidence that a reasonable person might accept as adequate to support a conclusion 13 considering the record as a whole. Id. To determine whether substantial evidence supports 14 a decision, the Court must consider the record as a whole. Id. Generally, “[w]here the 15 evidence is susceptible to more than one rational interpretation, one of which supports the 16 ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 17 954 (9th Cir. 2002) (citations omitted). 18 To determine whether a claimant is disabled for purposes of the Act, the ALJ 19 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 20 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 21 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 22 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 23 § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 24 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At 25 step three, the ALJ considers whether the claimant’s impairment or combination of 26 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 27
28 pinching activities, consistent with [independent medical examiner Dr. Lucia McPhee’s] assessment” during the periods of non-disability. (Def. Br. at 20.) 1 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically 2 found to be disabled. Id. At step four, the ALJ assesses the claimant’s RFC and determines 3 whether the claimant is still capable of performing past relevant work. 20 C.F.R. 4 § 404.1520(a)(4)(iv). At the fifth and final step, the ALJ determines whether the claimant 5 can perform any other work in the national economy based on the claimant’s RFC, age, 6 education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If not, the claimant is 7 disabled. Id. 8 If a person is disabled, her disability benefits can end if substantial evidence 9 demonstrates that her impairments have medically improved such that she can engage in 10 substantial gainful activity. See 42 U.S.C. § 423(f). To determine whether there is medical 11 improvement, an ALJ must compare the claimant’s RFC when she was last disabled to her 12 current RFC. 20 C.F.R. § 404.1594(b)(7). 13 III. ANALYSIS 14 Plaintiff raises five arguments for this Court’s consideration: (1) the ALJ erred by 15 finding Plaintiff was not disabled between June 7, 2013 and January 29, 2018 (Pl. Br. at 16 13-14); (2) the ALJ erred by finding that medical improvement occurred on March 27, 17 2019 (Pl. Br. at 14-16); (3) the ALJ erred by rejecting the opinion of a physical therapist 18 without citing sufficient reasons (Pl. Br. at 16-17); (4) “the ALJ erred in her analysis of 19 Mrs. Bozicevic’s credibility” (Pl. Br. at 17-19); and (5) the credit-as-true rule compels the 20 Court to remand for computation of benefits. (Pl. Br. at 19-21.) The Court finds reversible 21 error and remands for further proceedings. 22 A. On the period of non-disability between June 7, 2013 and January 29, 2018, the Court affirms. 23 24 At Plaintiff’s second hearing, the vocational expert testified an individual limited to 25 only occasional handling and fingering could not perform Plaintiff’s past relevant work. 26 (AR. at 826.) Plaintiff argues that because she “was limited to occasional forceful grasping 27 and occasional forceful pinching activities” during the periods of non-disability, the 28 Dictionary of Occupational Titles (“DOT”) instructs she is necessarily limited to 1 occasional handling and fingering, and hence, disabled, per the vocational expert’s 2 testimony. (Pl. Br. at 13-14, AR. at 826.) 3 In support of her argument, Plaintiff cites the DOT’s definition of “handling,” which 4 includes “seizing, holding, grasping, turning or otherwise working with [a] hand or 5 hands,” and the definition of “fingering,” which includes “[p]icking, pinching, or 6 otherwise working primarily with the fingers rather than the whole hand or arm as 7 handling.” (Pl. Br. at 13-14, emphasis in original.) As Plaintiff puts it, “Therefore, a 8 limitation to occasional grasping and pinching limits [her] to occasional handling and 9 fingering.” (Pl. Br. at 14.) Since the VE testified an individual limited to occasional 10 handling or fingering could not perform Plaintiff’s past relevant work (AR. at 826), and 11 the ALJ concluded Plaintiff had acquired no transferable skills to other work (AR. at 771), 12 Plaintiff argues she was disabled between June 7, 2013 and January 29, 2018. (Pl. Br. at 13 13-14.)5 The Court disagrees. 14 Social Security Ruling (“SSR”) 00-4p explains, “The DOT lists maximum 15 requirements of occupations as generally performed, not the range of requirements of a 16 particular job as it is performed in specific settings. A [vocational expert], [vocational 17 specialist], or other reliable source of occupational information may be able to provide 18 more specific information about jobs or occupations than the DOT.” SSR 00-4p, 2000 WL 19 1898704, at *3; see, e.g., Rebensdorf v. Berryhill, 773 Fed. App’x 874, 877-78 (9th Cir. 20 2019) (“We reject Rebensdorf's argument that the ALJ failed to reconcile a conflict 21 between the [DOT] and the [vocational expert’s] testimony, because, contrary to 22 Rebensdorf's argument, not all jobs classified as ‘light work’ require six hours of standing 23 or walking per day.”) (citing SSR 00-4p); Gutierrez v. Colvin, 844 F.3d 804, 808-809 (9th 24 Cir. 2016) (finding no apparent conflict between the DOT and a vocational expert’s 25 testimony when the vocational expert testified a hypothetical individual could perform the 26 27 5 The Court notes it is somewhat ambiguous whether the ALJ intended to include a limitation to “occasional, forceful” grasping and pinching in her RFC finding for the 28 periods of non-disability, but the Court need not address the ambiguity to resolve the issue Plaintiff raised on appeal. 1 job of cashier, which requires frequent reaching under the DOT, despite being limited to 2 no overhead reaching with her right upper extremity); accord Cortez v. Colvin, 2014 WL 3 3734308, at *2 (D. Nev. July 28, 2014) (“Cortez attempts to create the specter of a conflict 4 by arguing that absence if sufficient [sic] for an opposition. This is not only illogical, but 5 it would render vocational experts useless if their testimony could not add to, or depart 6 from, the [DOT]. Accordingly, when the [DOT] is silent on a matter, several courts have 7 held that no conflict exists.”) (internal citations omitted); see also SSR 96-8P, 1996 WL 8 374184, at *3 (“[P]articular occupations may not require all of the exertional and 9 nonexertional demands necessary to do the full range of work at a given exertional level.”); 10 contra Lockwood v. Comm’r of Social Security Admin., 914 F.3d 87, 91-93 (2nd Cir. 2019). 11 In Gutierrez, the Ninth Circuit reasoned that an inquiry into a potential conflict in 12 the vocational evidence is only necessary when the conflict between the VE’s testimony 13 and the DOT is “obvious or apparent.” Gutierrez, 844 F.3d at 808 (“For a difference 14 between an expert's testimony and the Dictionary's listings to be fairly characterized as a 15 conflict, it must be obvious or apparent. This means that the testimony must be at odds 16 with the Dictionary's listing of job requirements that are essential, integral, or expected.”) 17 An ALJ is not “free to disregard the [DOT’s] definitions . . . [b]ut tasks that aren’t essential, 18 integral, or expected parts of a job are less likely to qualify as apparent conflicts that the 19 ALJ must ask about.” Id. 20 The Court finds that the VE’s testimony—that a hypothetical individual limited to 21 “occasional, forceful” grasping and pinching, but otherwise frequent handling and 22 fingering (among other limitations not at issue), could perform Plaintiff’s past relevant 23 work of claims administrator—does not obviously or apparently conflict with the DOT. As 24 can be inferred from the VE’s testimony, it is reasonable that an individual limited to 25 “occasional, forceful” pinching and grasping could otherwise seize, hold, grasp, or turn 26 objects with the hands, or pick, pinch, or otherwise work primarily with the fingers with 27 normal force or vigor. Moreover, the Court recognizes the DOT code cited by the ALJ and 28 the VE (AR. at 770, 822), which denotes the job of “SUPERVISOR, CLAIMS” (Alternate 1 title: Claims Administrator), requires only occasional handling and fingering to begin with, 2 DOT 241.137-018 SUPERVISOR, CLAIMS, available at 1991 WL 672240 (emphasis 3 added).6 4 In sum, the Court disagrees with Plaintiff that a limitation to “occasional, forceful” 5 pinching and grasping would necessarily limit Plaintiff to occasional handling and 6 fingering under the DOT. There is no obvious or apparent conflict between the vocational 7 expert’s testimony and the DOT, and the Court affirms the ALJ’s finding on this issue. 8 B. Substantial Evidence Supports the ALJ’s Determination that Medical Improvement Occurred on March 27, 2019. 9 10 Plaintiff argues that the ALJ erred by finding that medical improvement occurred 11 effective March 27, 2019. In support of her conclusion that medical improvement occurred, 12 the ALJ addressed the report of consultative examiner Robert Gordon, D.O., who opined 13 that Plaintiff’s “wrist and hand were within normal limits,” and who “concluded [Plaintiff] 14 retained the [RFC] to frequently handle with the left non dominant upper extremity and she 15 had no restrictions on the right.” (AR. at 772.)7 The ALJ noted Plaintiff’s report of pain 16 during the examination (AR. at 772) but, beyond that, found “very little evidence of 17 treatment for [Plaintiff’s] wrist impairment after March 26, 2019, which supports the 18 conclusion her symptoms improved and [her RFC] increased.” (AR. at 772.) Later in the 19 decision, when discussing her reliance on the several medical opinions of record, the ALJ 20
21 6 The Court recognizes that “[n]either the [Dictionary of Occupational Titles] nor 22 the [vocational expert] ... evidence automatically ‘trumps’ when there is a conflict.” Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007) (citing SSR 00-4p). The Court 23 takes no position on which source is correct. 24 7 Dr. Gordon further concluded Plaintiff could occasionally lift or carry weights ranging from 21 to 50 pounds, frequently lift or carry weights of 11 to 20 pounds, and 25 continually lift or carry weights up to 10 pounds; stand or walk for four hours at one time and six hours total in a day; sit for eight hours at one time and eight hours in a day; 26 continually use either foot for the operation of foot controls; frequently climb stairs, ramps, ladders, or scaffolds; frequently crawl; and continually balance, stoop, kneel, or crouch. 27 (AR. at 1060-62.) Dr. Gordon found Plaintiff could generally tolerate most environmental conditions such as pulmonary irritants, heat, cold, and humidity, and that she was generally 28 capable of physical activities such as shopping, travelling alone, ambulating without assistance, feeding herself, and handling paper files. (AR. at 1063.) 1 assigned “partial weight” to Dr. Gordon’s opinion as of March 27, 2019, but “[m]inimal 2 weight” during the period of disability. (AR. at 781.) The ALJ explained only that 3 “[Dr. Gordon’s] opinion supports the conclusion reached in this decision [Plaintiff] is not 4 precluded from performing sedentary work with the limitations found in this decision,” and 5 that “[Plaintiff’s] medical condition improved and that as of [March 27, 2019], she regained 6 the ability to frequently handle, rather than occasionally.” (AR. at 781.) 7 Plaintiff asserts that “no reasonable person would conclude that Dr. Robert 8 Gordon’s consultative exam supports a finding of medical improvement of 9 Mrs. Bozicevic’s ability to handle and finger,” and that the ALJ failed to explain her 10 deviation from the remainder of Dr. Gordon’s opinion. (Pl. Br. at 14.) Plaintiff also notes 11 the brief period between the consultative examination and Plaintiff’s second hearing, and 12 asserts that “[f]inding medical improvement between March 2019 and the hearing on 13 November 2019 fails to consider the record as a whole which includes six years of 14 treatment notes.” (Pl. Br. at 15.) Plaintiff contends additional evidence dated after March 15 2019 supports ongoing impairment of the hands and other treatment indicative of 16 impairment and supportive of disability. (AR. at 15-16.) 17 The Court will evaluate a closed period of disability benefits by comparing the 18 evidence from the applicable periods of disability and non-disability. Attmore v. Colvin, 827 19 F.3d 872, 876 (9th Cir. 2016) (“We therefore hold that, in closed period cases, the ALJ should 20 compare the medical evidence used to determine the claimant was disabled with the medical 21 evidence existing at the time of possible medical improvement.”). Examples of evidence 22 must reflect “broader development” in the claimant’s medical condition. Id. (citing Garrison 23 v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014)). 24 To begin, it is not legal error to deviate from a consultative examiner’s opinion, 25 accepting or rejecting portions of it as an ALJ may see fit, provided the ALJ gives specific, 26 legitimate reasons supported by substantial evidence for doing so when that examiner’s 27 opinion is contradicted in the record. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995) 28 (citing the specific, legitimate standard as it applies to the opinion of an examining 1 physician); accord Michael H. v. Comm’r of Social Security, 2021 WL 2012572, at *3 2 (W.D. Wash. May 20, 2021) (holding an ALJ provided specific, legitimate reasons for 3 rejecting an examiner’s specific conclusions regarding manipulative limitations, despite 4 otherwise assigning “partial weight” to the opinion); Gregory M. v. Saul, 2020 WL 5 1847870, at *2-3 (D. Or. April 13, 2020) (affirming the ALJ properly deviated from an 6 examining physician’s opinion, which the ALJ generally assigned “significant weight” to, 7 by providing “sufficiently specific and legitimate reasons”); cf Vasquez v. Berryhill, 2018 8 WL 3725766, at *5 (C.D. Cal. Aug. 3, 2018) (holding reversible error exists when the ALJ 9 accords weight to a disabling medical opinion and then deviates from that opinion without 10 any explanation). 11 The Court also acknowledges that a consultative examiner’s opinion alone can 12 amount to substantial evidence. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) 13 (“[The consultative examiner’s] opinion alone constitutes substantial evidence, because it 14 rests on his own independent examination of [the claimant.]”) (internal citations omitted). 15 This can be true even when that consultative examiner reviewed no medical records, as is 16 the case here. See Castaneda v. Astrue, 344 Fed. App’x 396, 398 (9th Cir. 2009) (internal 17 citations omitted) (holding that ALJ did not err in relying on the report of a consultative 18 examiner who did not review a previous MRI record because the examiner's report rested 19 on his own independent examination of plaintiff and was consistent with the overall record) 20 (citing Tonapetyan, 424 F.3d at 1149); accord Sims v. Comm’r Social Sec. Admin., 2015 21 WL 1517421, at *8 (D. Or. Apr. 1, 2015) (“Plaintiff challenges the ‘great weight’ accorded 22 by the ALJ to Dr. Brenneke’s opinion on the basis that Dr. Brenneke’s inability to review 23 plaintiff's previous medical records materially affected his opinion. Plaintiff's argument is 24 erroneous; a consultative examiner is not legally obligated to review claimant's medical 25 records.”) (citing Castaneda, 344 Fed. App’x 396); Fortes v. Astrue, 2009 WL 734161, at 26 *3 (S.D. Cal. Mar. 18, 2009) (ALJ did not err in relying on a report from a consultative 27 examiner who failed to review claimant's medical records because the examiner obtained 28 a medical history from plaintiff and performed his own orthopedic examination). 1 The Court finds that in her decision to assign “partial weight” to Dr. Gordon’s 2 opinion effective March 27, 2019, the ALJ cited nothing that was not conclusory or 3 circular. (AR. at 781.) (“This decision supports the conclusion reached in this decision that 4 the claimant’s medical condition improved and that as of [March 27, 2019], she regained 5 the ability to frequently handle, rather than occasionally.”). But, alone, the ALJ’s failure to 6 explain, in coherent terms, any deviation from Dr. Gordon’s opinion is harmless. Stout v. 7 Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055–56 (9th Cir. 2006) (noting a line of cases 8 indicating an error “inconsequential to the ultimate nondisability determination” is 9 harmless) (internal citations omitted). As the Commissioner correctly points out, accepting 10 Dr. Gordon’s opinion as true, Plaintiff is capable of far more strenuous work activity than 11 the ALJ identified. (D. Br. at 20, n. 13.) 12 Plaintiff also contends the ALJ’s analysis of medical improvement did not 13 sufficiently account for post-improvement treatment notes indicating “inflammatory 14 primary distribution osteoarthritis with associated fibrocystic overlay”; Plaintiff’s receipt 15 of a Kenalog injection, which is a treatment for joint pain, swelling, and stiffness; her 16 prescription for an oral steroid; a fractured foot; and an endoscopy. (Pl. Br. at 15.) Plaintiff 17 contends that “[w]hile Dr. Posner did not specifically identify the joints he treated were 18 located in [Plaintiff’s] hands, no reasonable person would conclude that Dr. Posner 19 excluded references to her hands.” (Pl. Br. at 15.) 20 The Court finds that while Plaintiff’s post-improvement treatment records contain 21 some references to her ongoing medical issues, the ALJ’s conclusion that medical 22 improvement occurred is supported by substantial evidence and is a rational interpretation 23 of the record. Thomas, 278 F.3d at 954. (“Where the evidence is susceptible to more than 24 one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion 25 must be upheld.”). Plaintiff may have experienced ongoing symptoms after March 2019, 26 but they are poorly documented. The medical records of her physical medicine physician, 27 Dr. Atul Patel, are handwritten and mostly illegible for the period shortly before and after 28 the ALJ found medical improvement. (AR. at 1105-1106.) Dr. Posner’s findings from this 1 time are unclear, equivocal, and occasionally difficult to discern. The Court does note, 2 however, that Dr. Posner’s prescription of the steroid Prednisone appeared to be effective. 3 In April 2019, Dr. Posner suggested a steroid trial of 10mg Prednisone “while we further 4 evaluate the pattern of pain and its associated response to steroid reflected by any decrease 5 in [Plaintiff’s] sedimentation rate . . . .” (AR. at 1198.) Lab results from June 2019 indicate 6 Plaintiff’s sedimentation rate had fallen to within the reference range (AR. at 1203), 7 whereas her sedimentation rate had previously been high in November 2018 during the 8 period of disability. (AR. at 1208.) During Plaintiff’s return visit in August 2019, 9 Dr. Posner stated in regard to Plaintiff’s medication response, “[Plaintiff’s] interim history 10 reviewed [Plaintiff’s] general comfort on current order regimen for management of her 11 osteoarthritis and osteoporosis . . . .” (AR. at 1197.) In October 2019, while Dr. Posner 12 noted the “typical osteoproliferative change about the [distal interphalangeal joints] and 13 evolving bunion deformity,” he recommended maintaining the status quo, stating that 14 “[Plaintiff] may continue with current maintenance medicines . . . .” (AR. at 1196.) 15 Conversely, Dr. Gordon’s conclusions find support in his examination and 16 observation of Plaintiff. He documented, for instance, normal muscle bulk and strength in 17 Plaintiff’s upper extremities with normal grip. (AR. at 1057.) He noted a radial deviation 18 deformity in Plaintiff’s left wrist consistent with her previous fracture and diffuse pain with 19 palpation to the wrist and with movement (AR. at 1057), but that other clinical signs were 20 negative, and that Plaintiff exhibited no atrophy or synovitis. (AR. at 1057.) He further 21 documented Plaintiff could pick up small coins with both hands, screw a nut onto a bolt, 22 and write her name without difficulty, despite her complaints of left wrist pain with all fine 23 motor movement maneuvers. (AR. at 1057.) 24 Plaintiff’s reference to post-improvement treatment notes are unconvincing. 25 Dr. Gordon’s findings regarding Plaintiff’s manipulative limitations are properly supported 26 by his examination and, in this case, his opinion constitutes substantial evidence of medical 27 improvement. The Court finds substantial evidence supports the ALJ’s finding, and that 28 the ALJ did not err by relying upon Dr. Gordon’s opinion. 1 C. Tophien ioAnL Jw ietrhroeudt bcyit inrge jegcetirnmga npeh yrseicaaslo ntsh esruapppisot rtRedic hbayr d suRbasntadnatlila’sl evidence. 2 3 Plaintiff argues that the ALJ erred by rejecting the opinion of a physical therapist 4 without citing sufficient reasons. The record includes a January 22, 2014 functional 5 capacity evaluation (“FCE”) and summary report authored by physical therapist, Richard 6 S. Randall, who performed an FCE of Plaintiff at the behest of an attorney. (AR. at 325- 7 34.) Mr. Randall concluded, inter alia, that “[b]ased on [Plaintiff’s] performance during 8 the evaluation tasks and based on a reasonable degree of medical certainty, . . . that 9 [Plaintiff] would be unable to perform a job description at the sedentary work level on a 10 full-time or even part-time basis.” (AR. at 331) (emphasis in original.) Mr. Randall noted 11 that Plaintiff’s reported symptoms over the day following the FCE “confirmed [his] 12 opinion regarding [Plaintiff’s] inability to function at a sedentary work level on a day-to- 13 day basis.” (AR. at 331) (emphasis in original.) Mr. Randall discussed his observations, 14 examination findings, and specific functional limitations in detail throughout the nine-page 15 report and summary. (AR. at 325-34.) 16 In ALJ Waters’s partially favorable decision, she noted Mr. Randall completed the 17 FCE at the request of an attorney “rather than in [the] course of treatment[,] and the 18 objectivity of [Mr. Randall] cannot be presumed.” (AR. at 780.) After describing the 19 symptoms Plaintiff reported to Mr. Randall post-examination, the ALJ stated, “[T]his is 20 only based upon the claimant’s self-reported complaints that is not supported [sic] by the 21 objective clinical evidence.” (AR. at 780.) The ALJ continued, “As discussed in detail 22 above, treatment records support the conclusion reached in this decision that [Plaintiff] is 23 precluded from performing past work as previously performed, but the record does not 24 support a finding that she was unable to perform sedentary work.” (AR. at 780.) 25 Plaintiff asserts the ALJ’s stated reasons for rejecting Mr. Randall’s opinion—(1) 26 that Mr. Randall performed his examination at the request of an attorney and “is not 27 objective,” and (2) that his report is based on Plaintiff’s subjective complaints—are not 28 germane (Pl. Br. at 16-17.) Defendant responds that the nature of the relationship between 1 examiner and examinee is a relevant consideration under the regulations and the ALJ’s 2 reason to discount Mr. Randall’s opinion was that it was “based, in part, on Plaintiff’s self- 3 reported symptoms rather than objective findings.” (D. Br. at 15-16) (emphasis added.) 4 Defendant explains that the ALJ’s decision was reasonable “because [Mr. Randall’s] report 5 was largely informed by subjective complaints . . .,” and that this is appropriate under the 6 regulations (D. Br. at 16) (emphasis added.) The Court agrees with Plaintiff. 7 Physical therapists are considered “other sources” and are generally not afforded the 8 same weight as treating physicians under the regulations. See Ghanim v. Colvin, 763 F.3d 9 1154, 1161 (9th Cir. 2014). To reject a physical therapist’s opinion the ALJ must provide 10 germane reasons that are substantiated by the record. See Molina v. Astrue, 674 F.3d 1104, 11 1111 (9th Cir. 2012). 12 To begin, ALJ Waters did not explicitly or implicitly reject Mr. Randall’s opinion 13 on the basis it was the result of an attorney referral, stating only his objectivity “would not 14 be presumed.” (AR. at 780.) Even if she had, “The purpose for which medical reports are 15 obtained does not provide a legitimate basis for rejecting them.” Lester, 81 F.3d at 832 16 (internal citations omitted). This Court has previously held this rationale applies with equal 17 force to the opinion of a non-acceptable medical source, such as Mr. Randall. See Cotton 18 v. Colvin, 2017 WL 914617, at *4 (D. Ariz. Mar. 8, 2017) (“Discounting the medical 19 opinions of Dr. Norris and [physician’s assistant] Harris on the basis of their assumed 20 motivations amounts to speculation. It does not constitute a clear and convincing reason 21 for rejecting Norris or a germane reason for rejecting Harris.”) (citing Lester, 81 F.3d at 22 832); see Scruggs v. Colvin, 2016 WL 2894422, at *4 (W.D. Wash. Mar. 28, 2016) (noting 23 an ALJ may not assume, without citing proper evidence, a medical opinion from a treating 24 non-acceptable medical source was given to assist a claimant); Saltos v. Colvin, 2014 WL 25 1415028, at *11 (E.D. Wash. Apr. 11, 2014) (citing the same rationale). 26 Regarding the ALJ’s belief that Mr. Randall’s report was “based upon the claimant’s 27 self-reported complaints,” as Plaintiff correctly points out, Mr. Randall describes several 28 tests he purported to have administered during the FCE, and states that his conclusions 1 regarding claimant’s functionality were based on those test results. (AR. at 331.) The ALJ’s 2 statement that Mr. Randall’s report was “based upon the claimant’s self-reported 3 complaints” is not completely accurate. The ALJ did not provide germane reasons 4 supported by substantial evidence to reject Mr. Randall’s report. 5 D. The ALJ provided clear, convincing reasons supported by substantial 6 evidence in rejecting Plaintiff’s subjective symptom testimony during the periods of non-disability. 7 8 Plaintiff argues that the ALJ “erred in her analysis of [Plaintiff’s] credibility” 9 because, in violation of federal regulation, 20 C.F.R. § 404.1529, the ALJ simply 10 concluded “the objective medical evidence fail[ed] to support the severity of impairments 11 and symptoms alleged.” (Pl. Br. at 19-20.) Plaintiff asserts the ALJ concluded, after 12 summarizing Plaintiff’s medical records, that her symptom testimony “can’t be verified by 13 medical evidence.” (Pl. Br. at 19, Reply at 6-7.) Plaintiff asserts, “The ALJ fails to identify 14 which symptom testimony specifically conflicts with the medical records summarized.” 15 (Pl. Br. at 19, Reply at 7.) 16 In response, Defendant argues “the ALJ provided legally sufficient reasons, 17 supported by substantial evidence” for rejecting Plaintiff’s symptom testimony, including 18 inconsistencies between Plaintiff’s testimony and the objective evidence; claimant’s course 19 of treatment illustrating improvement or symptomatic control with medications and 20 reliance on “conservative” treatment modalities; and the lack of mental health treatment 21 records to substantiate any causality between a mental impairment and Plaintiff’s physical 22 issues. (D. Br. at 8-11.) 23 An ALJ performs a two–step analysis to evaluate a claimant’s testimony regarding 24 pain and symptoms. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). First, the ALJ 25 evaluates whether the claimant has presented objective medical evidence of an impairment 26 “which could reasonably be expected to produce the pain or symptoms alleged.” 27 Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007) (quoting Bunnell v. 28 Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal quotation marks omitted)). 1 If the claimant presents such evidence, then “the ALJ can reject the claimant’s testimony 2 about the severity of her symptoms only by offering specific, clear and convincing reasons 3 for doing so.” Garrison, 759 F.3d at 1014–15 (citing Smolen v. Chater, 80 F.3d 1273, 1281 4 (9th Cir. 1996)). This is the most demanding standard in Social Security cases. Id. at 1015. 5 Notably, “In evaluating the credibility of pain testimony after a claimant produces 6 objective medical evidence of an underlying impairment, an ALJ may not reject a 7 claimant’s subjective complaints based solely on a lack of medical evidence to fully 8 corroborate the alleged severity of pain.” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 9 2005). This is because “pain testimony may establish greater limitations than can medical 10 evidence alone.” Id. The ALJ may, however, properly consider that the medical record 11 lacks evidence to support certain symptom testimony. Id. at 681. The ALJ may also 12 properly consider inconsistencies in the claimant’s testimony, including inconsistencies 13 between the claimant’s testimony of daily activities and symptom testimony. Id. 14 Moreover, general findings pertaining to a claimant’s credibility are not sufficient. 15 See Lester v. Chater, 81 F.3d 821 (9th Cir. 2005). Rather, “the ALJ must specifically 16 identify the testimony she or he finds not to be credible and must explain what evidence 17 undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001). 18 In doing so, the ALJ need not engage in “extensive” analysis, but should, at the very least 19 “provide some reasoning in order for [a reviewing court] to meaningfully determine 20 whether [her] conclusions were supported by substantial evidence.” Brown-Hunter v. 21 Colvin, 806 F.3d 487, 494 (9th Cir. 2015). If the ALJ explains her decision “with less than 22 ideal clarity, a reviewing court will not upset the decision on that account if [her] path may 23 reasonably be discerned.” Alaska Dept. of Envtl. Conservation v. E.P.A., 540 U.S. 461, 497 24 (2004); see Brown-Hunter, 806 F.3d at 492 (applying this rule to the Social Security 25 context). The ALJ may consider “[the claimant’s] reputation for truthfulness, 26 inconsistencies either in [her] testimony or between [her] testimony and [her] conduct, 27 [her] daily activities, [her] work record, and testimony from physicians and third parties 28 1 concerning the nature, severity, and effect of the symptoms of which [s]he complains.” 2 Light v. Soc. Sec. Admin., Comm’r, 119 F.3d 789, 792 (9th Cir. 1997). 3 The Court finds, contrary to Plaintiff’s contention, the ALJ identified several bases 4 for rejecting or discrediting Plaintiff’s symptom testimony during the periods of non- 5 disability: (1) that diagnostic testing and clinical findings did not justify greater limitations 6 than those identified by the ALJ (AR. at 773, 775)8; (2) that Plaintiff declined prophylactic 7 medications for headaches, “which suggests her symptoms were controlled,” and that her 8 “use of medication is not consistent with severe and frequent migraines” (AR. at 775); and 9 (3) that Plaintiff’s providers never prescribed an ambulatory device, despite Plaintiff’s 10 treatment for injuries related to falls (AR. at 779.) Throughout her discussion of the 11 evidence supporting her RFC finding during the periods of non-disability, the ALJ 12 summarizes at length both evidence supporting and belying Plaintiff’s symptom testimony. 13 The Court addresses each of the ALJ’s stated reasons in turn. 14 1. The lack of objective or clinical evidence is not alone sufficient, but the ALJ may be consider it and note inconsistencies. 15 16 The ALJ’s consideration of objective evidence is a necessary part of her evaluation 17 of a claimant’s symptom testimony. 20 C.F.R. § 404.1529(c)(2) (“Objective medical 18 evidence of this type is a useful indicator to assist us in making reasonable conclusions 19 about the intensity and persistence of your symptoms and the effect those symptoms, such 20 as pain, may have on your ability to work. We must always attempt to obtain objective 21 medical evidence and, when it is obtained, we will consider it in reaching a conclusion as 22 to whether you are disabled.”). While an ALJ is permitted to reduce the weight given to a 23 claimant’s testimony if it is unsupported by objective medical evidence, this cannot be the 24 25 8 After noting “the record does not support a conclusion [Plaintiff] was more limited than found in this decision” (AR. at 773), the ALJ described what she perceived to be 26 benign diagnostic testing throughout the relevant period. (AR. at 773-74.) After summarizing portions of the medical record at length, the ALJ stated, “[Plaintiff] has a 27 history of treatment for multiple medical conditions, but the record does not support a finding she has been more limited than found in this decision” during the periods of non- 28 disability. (AR. at 778.) The ALJ then summarized a compilation of medical records she believed supported the limitations she assigned. (AR. at 778-79.) 1 sole reason the testimony is rejected. Burch, 400 F.3d at 681. Nevertheless, an ALJ must 2 consider this evidence when assessing the probative value of a claimant’s statements 3 regarding the impact of her symptoms, and that is what the ALJ did here. 4 As the ALJ noted, and as the record bears out, diagnostic imaging of Plaintiff’s 5 brain, spine, and other joints repeatedly produced mild or unremarkable findings. (AR. at 6 773-74.) The lack of compelling diagnostic signs—considering Plaintiff’s longstanding 7 report of symptoms related to cervical disk disease and upper extremity numbness, tingling, 8 weakness, and pain—is a significant factor for the ALJ to examine, as those impairments 9 ought to be evident, to some degree, from radiographical imaging or electrodiagnostic 10 testing. Magnetic Resonance Imaging (“MRI”) of Plaintiff’s cervical spine has revealed a 11 disk osteophyte complex at the C5-6 level, narrowing the subarachnoid space and neural 12 foramen, but not resulting in cord compression or signal abnormality. (AR. at 701, 742, 13 729, 1154-55, 1178, 1184-85.) Electrodiagnostic testing of Plaintiff’s upper extremities has 14 not produced findings to corroborate her reported symptoms of weakness and radiating 15 pain (AR. at 737), despite her many complaints of weakness, numbness, tingling, and pain 16 in her upper extremities. (AR. at 364, 382, 415, 472, 574, 577, 733, 1111, 1113, 1173.) 17 MRIs of Plaintiff’s brain are normal and unable to explain the etiology of her headaches or 18 falls. (AR. at 1119, 1177.) Thoracic and lumbar imaging has not produced anything 19 corroborative (AR. at 311, 441, 1122) although Plaintiff repeatedly noted lower back pain. 20 (AR. at 382, 551, 560, 569, 577.) While this lack of convincing diagnostic evidence is 21 insufficient alone and does not account for Plaintiff’s symptoms or resulting limitations 22 from fibromyalgia, which is not amenable to confirmation by radiographical evidence, e.g., 23 Revels v. Berryhill, 874 F.3d 648, 656-57 (9th Cir. 2017), the lack of objective findings 24 does come to bear on the severity and extent of Plaintiff’s other impairments, including 25 cervical disk disease, and the symptoms attributable to those impairments. The ALJ was 26 correct to consider this evidence. 27 The ALJ also cited sporadic clinical notes in support of particular limitations she 28 assigned, such as a lack of lower extremity weakness despite Plaintiff’s complaints of falls 1 and lower extremity pain; mild left arm weakness and no sensory loss or decreased reflexes 2 despite complaints of arm and hand pain; a negative clinical test to substantiate reports of 3 numbness or tingling in the fingertips; and notes of symmetric strength. (AR. at 778.) Of 4 note, the ALJ cited a collection of medical records to illustrate convincingly that Plaintiff 5 repeatedly exhibited a normal gait during the relevant period. (AR. at 778.) Without 6 directly citing Plaintiff’s specific symptom testimony, it is clear such evidence belies her 7 statements regarding her limited ability to stand or walk. Normal gait findings reasonably 8 undermine that. Carmickle v. Comm’r of Soc. Sec., 533 F.3d 1155, 1161 (9th Cir. 2008) 9 (“Contradiction with the medical record is a sufficient basis for rejecting the claimant’s 10 subjective testimony.”). Because the Court finds the ALJ cited substantial evidence in 11 support of her conclusion Plaintiff’s gait was normal, and that her consideration of this 12 evidence was appropriate, it need not address the other specific clinical findings regarding 13 Plaintiff’s upper extremities, which the Court notes are scarcely cited. 14 2. Substantial evidence does not support the ALJ’s conclusion 15 medications controlled Plaintiff’s headaches or that she refused prophylactics. 16 17 The ALJ asserted Plaintiff declined prophylactic medications for migraines; that her 18 “use of medication is not consistent with severe and frequent migraines”; that there is “no 19 reason to believe” Plaintiff’s symptoms would not improve on a regimen of prophylactic 20 medications; that Plaintiff reported control of migraines on medications; and that she did 21 not return to her neurologist, “which suggests her headache symptoms were improved and 22 controlled with medication.” (AR. 779.) 23 Noting Plaintiff’s supposed headache control, the ALJ cited the July 29, 2013, 24 October 28, 2013, and January 24, 2014 treatment records of Plaintiff’s internist, Dr. 25 Duong. (AR. at 779.) The Court discusses each in turn. 26 Dr. Duong’s July 2013 note reflects “intermittent acute flare ups” of Plaintiff’s 27 migraines and fibromyalgia, even during rest, but improvement of symptoms on “current 28 Rx and rest/sleep.” (AR. at 389.) Plaintiff indicated she had run out of medications, which 1 precipitated a worsening of symptoms. (AR. at 389.) Dr. Duong noted Plaintiff should 2 “[c]ontinue to be off work for evaluation and Rx.” (AR. at 392.) 3 In October 2013, Dr. Duong indicated “Migrain[e] [headache] so far has been 4 controlled with [medications],” but that “[i]t got worsened [sic] stress/insomnia, along with 5 her [f]ibromyalgia.” (AR. at 382.) Importantly, Dr. Duong documented Plaintiff’s report 6 of neck and upper back pain radiating into both arms with arm and hand numbness and 7 tingling. (AR. at 382.) Dr. Duong noted Plaintiff experienced side effects with medications. 8 (AR. at 382.) 9 Dr. Duong’s January 2014 note begins as follows: “[Plaintiff] has continued to 10 experience neck pain, body muscle pain, and weakness/numbness of her upper extremities, 11 despite [n]egative EMG/NCV. She and her husband think she is getting worse. She has 12 more frequent [headaches], which is still controlled [sic] on medications. She has less 13 physical endurance, of even house works [sic], and needs to rest/lay down more. Her 14 husband feels that she is worsened and he thinks he needs FMLA to be extended to more 15 than [one] day each episode so he can stay home and help her when needed.” (AR. at 375.) 16 The evidence cited by the ALJ noted inconsistent or sporadic control of headaches. 17 While the Court notes that, elsewhere in the record, Plaintiff reported headache “control” 18 to providers on several occasions (AR. at 382, 577, 1114), considering the entire record, it 19 would appear symptomatic control of her headaches and other symptoms was short-lived. 20 Even with brief symptomatic control of headaches, Plaintiff often described other 21 worsening symptoms. 22 For instance, Plaintiff reported headache “control” on Rizatriptan and Fioricet in 23 January 2014, but also continuing pain in the head, neck, and back, with symptoms 24 worsening commensurate with stress and insomnia; “pain shooting down to [her] arms with 25 numbness/tingling”; and dropping objects due to hand pain and weakness. (AR. at 577.) 26 Plaintiff reported a progressive worsening in her conditions. (AR. at 577.) 27 When she presented for a neurology visit in April, Plaintiff reported “poor control” 28 of her headaches, which were occurring daily and accompanied by vomiting two-to-three 1 times per week, in addition to other symptoms including hand weakness, intermittent 2 numbness, and chronic neck pain. (AR. at 733.) Her providers administered injections for 3 her pain control, but Plaintiff reported a poor result. (AR. at 565.) By November, Plaintiff 4 continued to experience daily headaches and nausea with weakness and pain in her hands. 5 (AR. at 472.) In her visit with Dr. Patel in February 2015, Plaintiff noted she continued to 6 experience “persistent occipital headaches, dizziness and near syncopal type episodes.” 7 (AR. at 693.) In July 2015, she reported a “massive headache” necessitating a trip to the 8 emergency room. (AR. at 698.) 9 Throughout the remainder of 2015 and 2016, Plaintiff continued to report 10 fluctuating symptoms resulting in good days and bad. (AR. at 533, 604.) In September 11 2017, however, Plaintiff noted her headaches were “constant.” (AR. at 1113.) She also 12 explained that her headaches were “controlled” on Fioricet, but not completely relieved. 13 (AR. at 1114.) Dr. Patel noted during that visit, “Overall, [Plaintiff] has multiple issues that 14 probably preclude her ability to perform and consistent sedentary-level activity.” (AR. at 15 1114.) 16 Considering the entire record, symptomatic improvement or control is not a clear 17 and convincing basis for rejecting Plaintiff’s symptom testimony here. The medical record 18 illustrates convincingly that Plaintiff has struggled with symptomatic control of her 19 headaches throughout the entire relevant period and that, even when she did report 20 temporary control, her other symptoms were often problematic. The ALJ’s supposition 21 Plaintiff’s use of prophylactic medications would resolve her symptoms is speculative. See 22 Trevizo v. Berryhill, 871 F.3d 664, 681 (9th Cir. 2017) (rejecting an ALJ’s assertion 23 claimant’s complaints would have improved with medication compliance when the ALJ 24 made no citation to the record in support, no doctor connected claimant’s increased 25 symptoms with medication noncompliance, and it was not otherwise substantiated in the 26 record.). The ALJ cites nothing in the record to support this statement. Moreover, it is 27 unclear to the Court that Plaintiff, in fact, declined prophylactic medications. 28 1 In March 2014, Plaintiff reported to her treating internist, Dr. Bin Than Duong, that 2 she preferred to wait until after her upcoming neurologist appointment before agreeing to 3 a regimen of prophylactic medications for migraines. (AR. at 569, 572.) Plaintiff reported 4 “bad side effects” on a previous course of Amitriptyline. (AR. at 569.) In her follow-up 5 with neurologists at Barrow General Neurology in April 2014, Plaintiff submitted to 6 bilateral occipital nerve blocks. (AR. at 730-31.) Dr. Duong’s treatment note from May 7 2014 reflects Plaintiff reported poor results from those nerve blocks. (AR. at 565.) Plaintiff 8 stated her neurologists planned a course of prophylactic medications, but it was delayed 9 pending her response to the nerve blocks. (AR. at 565.) In her July 2014 neurology follow- 10 up, Plaintiff reported “the nerve blocks didn’t help.” (AR. at 743.) She and her physicians 11 did not discuss the use of prophylactic medications, but Plaintiff reportedly requested 12 “conservative treatment as mild disease [sic].” (AR. at 747.) Resident neurologist, Deepak 13 Kalra, M.D. instructed Plaintiff to continue current medications, refrain from taking 14 abortive medications for migraines more than twice per week, keep a headache diary, 15 engage in regular exercise, and return to the clinic in six months. (AR. at 747.) Dr. Kalra 16 referred Plaintiff to a physical medicine and rehabilitation physician “for neck stiffness and 17 pain and plan for management strategies.” (AR. at 747.) In November 2014, Plaintiff 18 returned to Barrow with complaints of daily headaches, constant nausea, and pain. (AR. at 19 472.) Her treatment plan remained the same, except Dr. Kalra prescribed an increase in 20 Gabapentin to 300mg three times daily and ordered the substitution of Sumatriptan for 21 Butalbital medications. (AR. at 475.) In her initial visit with physical medicine physician, 22 Atul Patul, M.D., Plaintiff noted she was taking Gabapentin, “which helps her headaches 23 at bedtime . . . .” (AR. at 693.) By May 2015, Plaintiff requested a refill of Gabapentin 24 from Dr. Duong, but stated “she could only tolerated [sic] low dosage.” (AR. at 608.) Dr. 25 Duong restarted Gabapentin at 100mg once nightly (AR. at 549.) 26 The record supports that Plaintiff did not refuse prophylactic medications, but only 27 agreed to wait, pending the results of her occipital nerve blocks. Importantly, she reported 28 side effects on a previous prophylactic medication, Amitryptiline. (AR. at 569.) Smolen, 1 80 F.3d at 1284 (“Where a claimant provides evidence of a good reason for not taking 2 medication for her symptoms, her symptom testimony cannot be rejected for not doing 3 so.”). From that point forward, the record provides insufficient evidence Plaintiff 4 steadfastly refused certain prophylactic medications, but it would appear Plaintiff and her 5 various providers settled on a regimen of other medications. What is clear is that the ALJ 6 failed to substantiate her position Plaintiff “declined prophylactic medications” with any 7 citation to the record. The Court deems the ALJ’s analysis of Plaintiff’s headache treatment 8 not sufficiently clear, convincing, or supported by substantial evidence. 9 3. Plaintiff’s failure to utilize an ambulatory assistive device is a 10 clear, convincing reason supported by substantial evidence from the record. 11 12 The ALJ noted Plaintiff’s providers had not prescribed an assistive device, despite 13 her history of falls. (AR. at 779.) Plaintiff testified she did not use an ambulatory assistive 14 device, but “probably should’ve.” (AR. at 809.) She testified she “use[s] [her] husband a 15 lot.” (AR. at 809.) Regarding her ability to stand or walk, Plaintiff testified she does not 16 “go[] anywhere and stand for hours,’ but that she could “go to the grocery store . . . [and] 17 walk around for half an hour.” (AR. at 811.) Plaintiff testified she feels “such a heaviness” 18 when standing. (AR. at 811.) She stated she could walk when she needed to, but “would 19 have to be careful,” especially during episodes of dizziness. (AR. at 811.) She testified to 20 walking her dog down her street “about three or four houses down” accompanied by her 21 husband. (AR. at 811.) 22 The Court finds this reason to be clear and convincing. Plaintiff reported a multitude 23 of falls throughout the relevant period (AR. at 495, 545, 682-83, 691, 695, 733, 1113, 1123, 24 1145, 1189, 1199), some of which required emergent care. (AR. at 1145, 1162, 1189.) In 25 June 2016, she reported to an attending physician at the E.R. that she had experienced five 26 falls in one 24-hour period. (AR. at 1145.) During a July 2016 visit with Dr. Patel, she 27 reported ten falls over the previous two months. (AR. at 682-83.) At her second hearing, 28 Plaintiff testified she is unable to shower outside her husband’s presence due to the 1 likelihood of a fall. (AR. at 813.) Despite the clear risk, Plaintiff herself testified she 2 requires no assistive device for ambulation, which is a clear, convincing inconsistency 3 sufficient to reject Plaintiff’s symptom testimony. See Bunnell v. Sullivan, 947 F.2d 341, 4 346 (9th Cir. 1991) (noting a “relevant factor” in determining the credibility of a claimant’s 5 allegations of pain may be the “unexplained, or inadequately explained, failure to seek 6 treatment or follow a prescribed course of treatment.”) (internal quotations and citations 7 omitted). “Moreover, a claimant's failure to assert a good reason for not seeking treatment, 8 ‘or a finding by the ALJ that the proffered reason is not believable, can cast doubt on the 9 sincerity of the claimant's pain testimony.’” Molina v. Astrue, 675 F.3d 1104, 1113-14 (9th 10 Cir. 2012.) (citing Fair, 885 F.2d at 603). The ALJ may “draw inferences logically flowing 11 from the evidence.” Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982.) 12 Here, it stands to reason that an individual who routinely falls in a manner to sustain 13 injury, would seek a remedy. The Court finds that the above evidence cited by the ALJ 14 does undermine the statements made by Plaintiff. Though the ALJ did not always directly 15 link each piece of cited evidence to a particular statement made by Plaintiff, the ALJ has 16 nonetheless cited sufficient evidence in the record and statements by Plaintiff to enable this 17 Court to reasonably discern her path and meaningfully determine that her conclusions are 18 clear, convincing, and supported by substantial evidence. Brown-Hunter, 806 F.3d at 492. 19 Thus, the Court finds the above reason sufficiently specific, clear, and convincing and 20 supported by substantial evidence in the record. 21 In summary, the Court finds that the ALJ provided a sufficient basis to find 22 Plaintiff’s statements not fully supported prior to January 29, 2018 or after March 26, 2019. 23 While perhaps the individual factors, viewed in isolation, are not sufficient to uphold the 24 ALJ’s decision to discredit Plaintiff’s allegations, each factor is relevant to the ALJ’s 25 overall analysis, and it was the cumulative effect of all the factors that led to the ALJ’s 26 decision. The Court concludes that the ALJ has supported her decision to discredit 27 Plaintiff’s allegations with specific, clear and convincing reasons and, therefore, the Court 28 finds no error. 1 E. The appropriate remedy is to remand Plaintiff’s case for additional proceedings. 2 3 The circumstances do not warrant application of the credit-as-true rule. Garrison, 4 759 F.3d at 1020. The rule applies if each part of a three-part test is satisfied. Id. First, the 5 record must have been fully developed and further administrative proceedings would serve 6 no useful purpose. Id. Next, the ALJ must have failed to provide sufficient reasons for 7 rejecting claimant’s testimony or medical opinions. Id. Finally, if the improperly 8 discredited evidence were credited as true, then the ALJ would be required to find the 9 claimant disabled. Id. The credit-as-true rule allows for some flexibility and balances 10 efficiency and fairness with the requirement that a claimant actually be disabled in order 11 to receive benefits. Id. at 1021. Thus, even if all the rule’s requirements are met, the Court 12 may still decline to apply the rule if there is “serious doubt” that the claimant is, in fact, 13 disabled. Id. 14 Here, it is not clear from the record that the ALJ would be required to find Plaintiff 15 disabled if all the evidence were properly evaluated using the proper standards. Therefore, 16 the Court, in its discretion, finds that a remand for further proceedings is appropriate. 17 While the Court is not eager to remand this case yet again for an ALJ’s failure to 18 provide adequate reasons for rejecting a seven-year-old physical therapist’s report, the 19 Court finds the ALJ’s analysis of this report patently insufficient and especially egregious 20 considering the fact this Court once remanded Plaintiff’s claim on that basis. These 21 considerations justify remanding this case for additional proceedings consistent with this 22 opinion. 23 IT IS THEREFORE ORDERED reversing the May 5, 2020 decision of the 24 Administrative Law Judge (AR. at 756-783). 25 IT IS FURTHER ORDERED remanding this case to the Social Security 26 Administration for additional proceedings consistent with this opinion. 27 28 1 IT IS FURTHER ORDERED directing the Clerk to enter final judgment consistent with this Order and close this case. 3 Dated this 10th day of November, 2021. CN 4 “wok: Ungé¢d Stat istrict Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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