Bromage v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: October 30, 2023
• Docket: 2:23-cv-00564
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 SARAH B., CASE NO. 2:23-CV-564-DWC 11 Plaintiff, ORDER RE: SOCIAL SECURITY 12 v. DISABILITY APPEAL 13 COMMISSIONER OF SOCIAL SECURITY, 14 Defendant. 15

16 Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of the denial 17 of her application for Disability Insurance Benefits (DIB). Pursuant to 28 U.S.C. § 636(c), Fed. 18 R. Civ. P. 73, and Local Rule MJR 13, the parties have consented to proceed before the 19 undersigned. Dkt. 2. After considering the record, the Court concludes that the ALJ erred in 20 failing to adequately evaluate the testimony of Plaintiff’s wife and therefore that this matter must 21 be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further 22 proceedings consistent with this order. 23

24 1 I. BACKGROUND 2 Plaintiff protectively filed an application for DIB on June 16, 2020. Administrative 3 Record (AR) 18. She alleged disability beginning May 1, 2014, AR 197, which she amended to 4 February 1, 2019, AR 40. Plaintiff’s date last insured (DLI) was June 30, 2019. AR 18.

5 After her application was denied initially, AR 67–81, and upon reconsideration, AR 84– 6 88, her requested hearing was held by video call upon before an Administrative Law Judge 7 (ALJ) on February 17, 2022, AR 37–66. On March 2, 2022, the ALJ issued a written decision 8 finding Plaintiff not disabled during the relevant period. AR 25–36. The Appeals Council 9 declined Plaintiff’s timely request for review, making the ALJ’s decision the final agency 10 decision and subject to judicial review. AR 1–7. 11 II. STANDARD OF REVIEW 12 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 13 benefits if and only if the ALJ’s findings are based on legal error or not supported by substantial 14 evidence in the record. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citation

15 omitted). Substantial evidence is “such relevant evidence as a reasonable mind might accept as 16 adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (citations 17 omitted). “We review only the reasons provided by the ALJ in the disability determination and 18 may not affirm the ALJ on a ground upon which he did not rely.” Garrison v. Colvin, 759 F.3d 19 995, 1010 (9th Cir. 2014) (citation omitted). 20 III. DISCUSSION 21 Plaintiff argues the ALJ erred in (1) rejecting the lay witness testimony of Plaintiff’s 22 wife; (2) rejecting the lay witness statement of Plaintiff’s wife’s employer (Paul); (3) rejecting 23 the medical opinions of her treating physician; (4) finding the state agency medical consultant’s 24 1 opinion persuasive. See generally Dkt. 10. Plaintiff requests that the Court reverse and remand to 2 the ALJ for proper consideration of the evidence. See id. at 16. 3 A. Plaintiff’s Wife’s Testimony 4 Plaintiff’s wife testified at the hearing and completed a third-party function report. AR

5 53–61, 261–72. She testified that Plaintiff had been experiencing pseudo-seizures since 2018. 6 AR 54. Beginning in February 2019, she testified, Plaintiff’s fatigue often prohibited her from 7 leaving bed. AR 55. Plaintiff’s wife testified that there had not been a month since late 2018 8 where Plaintiff had not spent at least several days in bed, although the frequency of this 9 occurrence increased over the following years. AR 60–61. Beginning in February 2019, 10 Plaintiff’s wife had to work from home two to three days a week to care for Plaintiff and their 11 daughter. AR 55. 12 “[I]n order to discount competent lay witness testimony, the ALJ ‘must give reasons that 13 are germane to each witness.’” Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012) (quoting 14 Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993)). Defendant does not dispute that the ALJ

15 was required to articulate why she rejected Plaintiff’s wife’s testimony,1 see Dkt. 13 at 2–3, 16 although it argued otherwise as to Paul’s testimony, see Dkt. 13 at 7 n.4.2 17

18 1 Defendant assumed in its brief that the “clear and convincing” standard applicable to subjective symptom testimony applied to the testimony of Plaintiff’s wife. See Dkt. 13 at 2–3. This may be because, according to 19 Defendant, “[a]t the hearing, Plaintiff asked that her wife testify on her behalf.” Dkt. 13 at 2 n.1 (citing AR 39). It may also be because the ALJ did not clearly distinguish her analysis of Plaintiff’s wife’s testimony from her analysis 20 of Plaintiff’s testimony. See AR 25–29. Plaintiff does not accept this assumption. Dkt. 14 at 4. Regardless, it is immaterial to this dispute because the Court finds that the ALJ’s decision was in error even under the less demanding “germane reasons” standard typically applicable to lay witness evidence. See Moore v. Comm’r of Soc. 21 Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002) (“The clear and convincing standard is the most demanding required in Social Security cases.”). 22 2 With respect to Paul’s statement, Defendant argued the revised regulations governing articulation requirements for medical opinions absolve the ALJ of any articulation requirement for lay witness evidence. See Dkt. 13 at 7 n.4. The Ninth Circuit has not addressed this issue, see Stephens v. Kijakazi, No. 22-25998, 2023 WL 23 6937296, at *2 (9th Cir. Oct. 20, 2023) (“We have not yet addressed whether under the new regulations an ALJ is still required to provide germane reasons for discounting lay witnesses.”), although it asserted otherwise in a 24 footnote to an unpublished opinion prior to Stephens, Fryer v. Kijakazi, No. 21-36004, 2022 WL 17958630, at *3 1 The ALJ rejected Plaintiff’s wife’s testimony because the limitations Plaintiff’s wife 2 observed prior to the DLI were purportedly inconsistent with the medical evidence. AR 25. An 3 ALJ may discount lay witness testimony if it conflicts with medical evidence, but a mere “lack 4 of support from medical records is not a germane reason” to reject lay witness testimony.

5 Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017); see also Bruce v. Astrue, 557 F.3d 6 1113, 1116 (9th Cir. 2009) (“Nor under our law could the ALJ discredit . . . lay testimony as not 7 supported by medical evidence in the record.”) (citing Smolen v. Chater, 80 F.3d 1273, 1289 (9th 8 Cir. 1996)). “The fact that lay testimony and third-party function reports may offer a different 9 perspective than medical records alone is precisely why such evidence is valuable at a hearing.” 10 Diedrich, 874 F.3d at 640. 11 Moreover, an ALJ errs when she “effectively requir[es] objective evidence for a disease 12 that eludes such measurement.” Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (cleaned 13 up). Functional Neurological Disorder, which Plaintiff was diagnosed with, “presents unusual 14 challenges” because it “is characterized, in part, by the lack of objective evidence to substantiate

15 physical [and] medical phenomena.” Metcalf v. Comm’r Soc. Sec. Admin., 592 F.Supp.3d 857, 16 864 (D. Ariz. 2022) (emphasis in original). The disorder causes someone “to exaggerate [their] 17 physical problems in [their] mind beyond what the medical data indicate.” Easter v. Bowen, 867 18 F.2d 1128, 1130 (8th Cir. 1989). In turn, “[s]ubjective perceptions” of the symptoms “may, in 19 fact, be debilitating even when clinical or diagnostic medical evidence does not fully support the 20 21 n.1 (9th Cir. Dec. 27, 2022). The Court disagrees with Defendant. The revised regulations expressly did not change the requirements governing ALJs’ assessments of lay witness testimony. See 20 C.F.R. § 1520c(e) (“[An ALJ is] not 22 required to articulate how [she] considered evidence from nonmedical sources using the requirements in paragraphs (a)-(c) of this section.”) (emphasis added). “That an ALJ can disregard or reject relevant lay evidence for no reason is inconsistent with the Commissioner's obligation to consider such evidence, and the rule the ALJ must provide 23 some rationale in order for the Court to meaningfully determine whether the ALJ's conclusions are free of legal error and supported by substantial evidence.” Gary J.D. v. Comm'r of Soc. Sec., 2023 WL 5346621, at *14 (W.D. Wash. 24 Aug. 21, 2023). 1 claimed symptoms.” Nowling v. Colvin, 813 F.3d 1110, 1114 (8th Cir. 2016) (citation omitted). 2 Thus, “in this type of case, even more so than in other cases, corroborating testimony from actual 3 witnesses such as family members or former employers regarding the nature of the symptoms 4 may hold particular value for a fact finder.” Id. at 1114–15.

5 Here, the medical evidence was not inconsistent with Plaintiff’s wife’s testimony. The 6 Court therefore finds that the ALJ erred by requiring corroborating medical evidence for the 7 limitations Plaintiff’s wife observed. See Diedrich, 874 F.3d at 640; Benecke, 379 F.3d at 594. 8 The ALJ discredited testimony detailing Plaintiff’s debilitating fatigue because the 9 records “[did] not contain any objective examination findings or observations that would support 10 the extent of debilitation alleged.” AR 26. Treatment notes show Plaintiff experienced chronic 11 fatigue since 2013, causing her to leave her job in 2014. See AR 399–400, 406–07, 424, 1000– 12 03, 1007. Notes from December 2018 indicate Plaintiff’s chronic fatigue persisted, causing 13 Plaintiff’s treating physician to recommend a sleep study. AR 998. This is consistent with 14 Plaintiff’s wife’s testimony that Plaintiff had debilitating fatigue from February 2019 onwards.

15 AR 55. A lack of evidence fully corroborating the extent of the fatigue is not a valid reason to 16 discount the testimony. See Diedrich, 874 F.3d at 640. 17 The ALJ found that Plaintiff’s “unremarkable findings [from physical examinations 18 were] not consistent with allegations of debilitating symptoms and limitations.” AR 27. The ALJ 19 pointed to normal neurological and physical exam findings. AR 26–27 (citing 666–71, 672–77, 20 1000-02). But subjective perceptions of physical pain caused by Functional Neurologic Disorder 21 may still “be debilitating” despite normal exam findings. Nowling, 813 F.3d at 1114. 22 Moreover, the ALJ did not adequately explain how these specific neurological and 23 physical exam findings contradicted the testimony of Plaintiff’s wife. It was incumbent on her to

24 1 do so. See Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (“the agency [must] set 2 forth the reasoning behind its decisions in a way that allows for meaningful review”). For 3 instance, when Plaintiff went to an emergency room in July 2019, eight days after the DLI,3 she 4 appeared fatigued; presented with chills, sweats, and nausea; was hypokalemic; and reported

5 pain. AR 672–78. Examination found no neurological deficits, extremity weakness, or 6 “concerning findings suggestive of central infection.” AR 27 (citing AR 672–77). To the ALJ, 7 these normal exam findings were “not consistent with allegations of debilitating symptoms and 8 limitations.” AR 27. While the normal exam findings did not corroborate Plaintiff’s complaints, 9 the Court cannot discern from the decision why those exam findings were inconsistent with those 10 complaints. The normal exam findings do show that medical examiners had difficulties 11 explaining Plaintiff’s symptoms. But this is typical of somatic disorders like Functional 12 Neurologic Disorder. See 20 C.F.R. § 404, Subpt. P, App. 1 (somatic disorders are “characterized 13 by physical symptoms or deficits that . . . cannot be fully explained by a general medical 14 condition [or] another mental disorder”).

15 The ALJ rejected Plaintiff’s wife’s testimony because Plaintiff’s anxiety and depression 16 were described in several treatment notes as well controlled. AR 25–26 (citing AR 406–07, 17 1005). The ALJ also found, based on several treatment notes, that Plaintiff’s physical back pain 18 improved from medication. AR 26–27 (citing AR 996, 1000–02). Neither piece of evidence is 19 inconsistent with Plaintiff’s wife’s testimony detailing chronic fatigue and pseudo-seizures 20 during the relevant time period. Moreover, “while discussing mental health issues, it is error to 21

22 3 Defendant noted that the ALJ “was not required” to review the medical evidence from after the DLI. Dkt. 23 13 at 4. This is incorrect. The ALJ must “consider all evidence in [the] case record.” See 20 C.F.R. § 404.1520(a)(3). “[M]edical evaluations made after the expiration of a claimant’s insured status are relevant to an evaluation of the 24 pre-expiration condition.” Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988) (citations omitted). 1 reject a claimant's testimony merely because symptoms wax and wane in the course of 2 treatment.” Garrison, 759 F.3d at 1017. And because Functional Neurologic Disorder symptoms 3 “result from an unconscious, involuntary conversion of mental stress into a physiological 4 symptom,” Nowling, 813 F.3d at 1114, the existence of physical pain needing to be controlled by

5 medication is itself evidence of mental impairments which might nevertheless be disabling. 6 The ALJ found that the omission of Plaintiff’s pseudo-seizures in the medical evidence 7 before the DLI contradicted Plaintiff’s wife’s testimony that such episodes occurred beginning in 8 late 2018. See AR 27–28. Similarly, the ALJ found that Plaintiff’s decision not to go to the 9 emergency room in December 2019 after an “abrupt onset of shakiness, stuttering, and weakness 10 . . . indicate[d] that the claimant did not begin to experience the episodes that she currently has 11 until after the date last insured.” AR 27. If unexplained, the failure to seek treatment for certain 12 symptoms can be a reason to dismiss allegations of debilitation from those symptoms. See Fair 13 v. Bowen, 885 F.2d 597, 603–04 (9th Cir. 1989). But here, the failure to get treatment was 14 explained by Plaintiff’s wife. AR 54. She explained that, initially, seizure episodes were brief

15 and that Plaintiff would “snap out of it,” but that Plaintiff would often have significant fatigue 16 afterwards. AR 54, 56–57. She and Plaintiff did not view these brief episodes as warranting 17 medical attention. See AR 54. The ALJ did not address this explanation. 18 The ALJ also rejected Plaintiff’s wife’s testimony because any “worsening of [Plaintiff’s] 19 condition . . . occurred subsequent to the date last insured.” AR 27. This is not a valid reason to 20 discount the testimony. Plaintiff must show she was disabled before her DLI. See Wellington v. 21 Berryhill, 878 F.3d 867, 872 (9th Cir. 2017) (citing 42 U.S.C. § 423). Plaintiff can experience 22 23

24 1 disabling symptoms before the DLI even if those symptoms subsequently worsen. And as 2 discussed above, Plaintiff’s wife’s testimony is consistent with such a finding.4 3 In sum, the ALJ erred in rejecting Plaintiff’s wife’s testimony that Plaintiff experienced 4 extreme, debilitating fatigue and pseudo-seizures prior to the DLI. This error was not

5 “inconsequential” to the “ultimate nondisability determination”—and therefore not harmless, 6 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006)—because, if credited, it 7 would result in a different RFC assessment. For instance, Plaintiff’s wife’s testimony that 8 Plaintiff’s wife had debilitating fatigue preventing her from leaving bed more than once a week 9 would, according to the vocational expert, have prevented Plaintiff from maintaining any sort of 10 employment. AR 64–65. 11 B. Remaining Issues 12 Plaintiff argues the ALJ erred in evaluating Paul’s statement and two medical opinions. 13 See Dkt. 10. As the Court has found reversible error in the ALJ's evaluation of Plaintiff’s wife’s 14 testimony, the Court declines to consider whether the ALJ erred in considering the medical

15 opinions or Paul’s statement. Rather, the Court directs the ALJ to reevaluate all the evidence on 16 remand, and reassess the RFC as warranted by further consideration of the evidence. 17 18 19 20

21 4 The ALJ also noted in various parts of the decision that Plaintiff was not diagnosed with Functional 22 Neurologic Disorder until after the DLI. See AR 28–29. To the extent the ALJ relied on this as a reason to reject Plaintiff’s wife’s testimony, this was error. DIB claimants need only show they were unable to engage in substantial gainful activity pre-DLI, not that their underlying condition was ascertainable at that time. See Wellington v. 23 Berryhill, 878 F.3d 867, 872 (9th Cir. 2017) (citing 42 U.S.C. § 423). And because medical reports like diagnoses “are inevitably rendered retrospectively,” they “should not be disregarded solely on that basis.” See Smith, 849 F.2d 24 at 1225. 1 IV. CONCLUSION 2 For the foregoing reasons, the Court REVERSES and REMANDS the decision pursuant 3 to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this 4 Order.

5 Dated this 30th day of October, 2023. 6 A 7 David W. Christel 8 Chief United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24