FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON Mar 15, 2022 SEAN F. MCAVOY, CLERK UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON TIANNA B.,1 No. 4:20-cv-5125-EFS Plaintiff, ORDER RULING ON CROSS v. SUMMARY-JUDGMENT MOTIONS AND DIRECTING ENTRY OF KILOLO KIJAKAZI, Acting JUDGMENT IN FAVOR OF Commissioner of Social Security, PLAINTIFF Defendant. Plaintiff Tianna B. appeals the denial of benefits by the Administrative Law Judge (ALJ). Because the ALJ failed to provide clear and convincing reasons supported by substantial evidence for discounting Plaintiff’s symptom reports, the Court grants summary judgment in favor of Plaintiff, denies the Commissioner’s motion for summary judgment, reverses the decision of the ALJ, and remands this matter for further proceedings. // / 1 For privacy reasons, the Court refers to every social security plaintiff by first name and last initial or as “Plaintiff.” See LCivR 5.2(c). I. Five-Step Disability Determination A five-step sequential evaluation process is used to determine whether an adult claimant is disabled.2 Step one assesses whether the claimant is engaged in
substantial gainful activity.3 If the claimant is engaged in substantial gainful activity, benefits are denied.4 If not, the disability evaluation proceeds to step two.5 Step two assesses whether the claimant has a medically severe impairment or combination of impairments that significantly limit the claimant’s physical or mental ability to do basic work activities.6 If the claimant does not, benefits are denied.7 If the claimant does, the disability evaluation proceeds to step three.8
Step three compares the claimant’s impairment or combination of impairments to several recognized by the Commissioner as so severe as to preclude substantial gainful activity.9 If an impairment or combination of impairments meets or equals one of the listed impairments (a “listing”), the claimant is 2 20 C.F.R. §§ 404.1520(a), 416.920(a).
3 Id. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). 4 Id. §§ 404.1520(b), 416.920(b). 5 Id. §§ 404.1520(b), 416.920(b). 6 Id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 7 Id. §§ 404.1520(c), 416.920(c). 8 Id. §§ 404.1520(c), 416.920(c).
9 Id. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). conclusively presumed to be disabled.10 If not, the disability evaluation proceeds to step four. Step four assesses whether an impairment prevents the claimant from
performing work she performed in the past by determining the claimant’s residual functional capacity (RFC).11 If the claimant can perform past work, benefits are denied.12 If not, the disability evaluation proceeds to step five. Step five, the final step, assesses whether the claimant can perform other substantial gainful work—work that exists in significant numbers in the national economy—considering the claimant’s RFC, age, education, and work experience.13
If so, benefits are denied. If not, benefits are granted.14 The claimant has the initial burden of establishing she is entitled to disability benefits under steps one through four.15 At step five, the burden shifts to the Commissioner to show the claimant is not entitled to benefits.16 10 20 C.F.R. §§ 404.1520(d), 416.920(d).
11 Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 12 Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 13 Id. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Kail v. Heckler, 722 F.2d 1496, 1497–98 (9th Cir. 1984). 14 20 C.F.R. §§ 404.1520(g), 416.920(g). 15 Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).
16 Id. II. Factual and Procedural Summary In November 2016, Plaintiff filed a Title II application for a period of disability and benefits. In February 2017, Plaintiff filed a Title XVI application for
supplemental security income.17 Plaintiff alleged an onset date of January 26, 2017.18 She asserted disability based on sleep apnea, restless leg syndrome, arthritis, ureter tube injury, hernia, lower back pain, bilateral knee pain, posttraumatic stress disorder (PTSD), bi-polar disorder, anxiety, depression, and insomnia.19 Plaintiff’s claims were denied initially and upon reconsideration.20 Plaintiff then requested an administrative hearing.
In June 2019, Administrative Law Judge Mark Kim presided over the requested administrative hearing.21 An impartial medical expert, an impartial vocational expert, and Plaintiff each presented testimony at the hearing.22 In denying Plaintiff’s disability claims, the ALJ found as follows: Insured Status — June 30, 2022, would be Plaintiff’s date last insured.23
17 AR 346. 18 AR 68. 19 See AR 387. 20 AR 217, 232. 21 AR 68. 22 AR 183.
23 AR 70. Step One — Plaintiff had not engaged in substantial gainful activity since January 26, 2017, the alleged onset date.24 Step Two — Plaintiff had the following medically determinable severe
impairments: morbid obesity, right hip osteoarthritis, abdominal wall hernia, depressive disorder, anxiety disorder, and PTSD.25 Step Three — Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments.26 RFC — Plaintiff had the RFC to perform light work with the following
additional limitations: o No climbing of ladders or scaffolds, crouching, or crawling. o Can occasionally climb ramps and stairs, stoop, and kneel. o Should avoid unprotected heights. o Should avoid occasional exposure to extreme temperatures and excessive vibrations. o Work limited to simple, routine type tasks with a reasoning level of
three or less. o Only occasional, simple changes in the work setting. 24 AR 70. 25 AR 71.
26 AR 72. o Only occasional superficial interaction with the public and coworkers.27 Step Four — Plaintiff was unable to perform any past relevant work.28 Step Five — Considering Plaintiff’s RFC, age, education, and work
history, Plaintiff could perform work that existed in significant numbers in the national economy, including the following representative occupations: marker, small products assembler II, and garment sorter.29 In July 2019, the ALJ issued a written decision finding Plaintiff had not been under a disability as defined by the Social Security Act (“the Act”) from January 26, 2017, through the date of the ALJ’s decision, July 16, 2019.30 Plaintiff
appealed to the Appeals Council, which denied review.31 Plaintiff then appealed to this Court, primarily asserting that the ALJ failed to account for Plaintiff’s fibromyalgia, her symptom testimony, and certain medical opinions which, she argues, show that she would miss more than one day of work per month on average.32 // /
27 AR 74. 28 AR 79. 29 AR 80. 30 AR 81. 31 AR 1–6.
32 See generally, ECF No. 27. III. Standard of Review A district court’s review of the Commissioner’s final decision is limited.33 The Commissioner’s decision is set aside “only if it is not supported by substantial
evidence or is based on legal error.”34 Substantial evidence is “more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”35 Because it is the role of the ALJ and not the Court to weigh conflicting evidence, the Court upholds the ALJ’s findings “if they are supported by inferences reasonably drawn from the record.”36 The Court considers the entire record as a whole.37
Further, the Court may not reverse an ALJ decision due to a harmless error.38 An error is harmless “where it is inconsequential to the ultimate 33 42 U.S.C. § 405(g).
34 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). 35 Id. at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). 36 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 37 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (The court “must consider the entire record as a whole,” not simply the evidence cited by the ALJ or the parties.) (cleaned up).
38 Molina, 674 F.3d at 1111. nondisability determination.”39 The party appealing the ALJ’s decision generally bears the burden of establishing harm.40 IV. Analysis
Plaintiff alleges the ALJ erred by (1) rejecting Plaintiff’s fibromyalgia as a severe impairment at step two, (2) rejecting Plaintiff’s symptom reports, (3) improperly evaluating certain medical opinions, (4) conducting inadequate analysis and failing to consider Listing 14.09D at step three, and (5) providing an incomplete hypothetical to the vocational expert at step five.41 For the reasons discussed below, the Court finds Plaintiff failed to establish that the ALJ erred at
step two, but the Court finds the ALJ did err in rejecting Plaintiff’s symptom reports without providing the requisite clear and convincing reasons. Remand is required because that error impacted nearly every aspect of the ALJ’s analysis, and the Court therefore need not address Plaintiff’s remaining arguments. A. Fibromyalgia: Plaintiff fails to show consequential step-two error. Plaintiff asserts that the ALJ reversibly erred by dismissing her fibromyalgia as a severe impairment at step two without providing adequate
explanation.42 The Court disagrees. 39 Molina, 674 F.3d at 1115 (cleaned up). 40 Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009). 41 See generally ECF Nos. 27 & 32.
42 See ECF No. 27 at 12–13. 1. Requirement to Present “Appropriate Medical Evidence” At step two of the sequential process, the ALJ is required to find whether the claimant suffers from any “severe” impairments by first determining whether the
claimant has a medically determinable impairment (MDI); then, for any MDI found, the ALJ must determine whether that MDI is severe.43 Importantly, to establish an MDI, a claimant’s symptom reports, diagnoses, and even medical opinions will not suffice; every MDI “must be established by objective medical evidence from an acceptable medical source.”44 And establishing the specific MDI of fibromyalgia requires an even more particularized subset of objective medical
evidence. To establish fibromyalgia as an MDI, the record must contain “appropriate medical evidence,” which can come only from a diagnosing medical or osteopathic doctor.45 Additionally, such appropriate medical evidence “must document that the physician reviewed the person’s medical history and conducted a physical exam.”46 43 20 C.F.R. §§ 404.1520(c), 416.920(c); id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
See also Soc. Sec. Ruling (SSR) 85-28, Titles II & XVI: Med. Impairments That Are Not Severe (S.S.A. 1985). 44 20 C.F.R. §§ 404.1521, 416.921. For this reason, the ALJ’s error in improperly discounting Plaintiff’s symptom reports did not affect the ALJ’s step-two analysis. 45 SSR 12-2p, Titles II & XVI: Evaluation of Fibromyalgia (S.S.A. 2012); id. § I. See also id. § III.A.1; 20 C.F.R. §§ 404.1513(a), 416.913(a).
46 SSR 12-2p § I. Even then, to establish fibromyalgia as an MDI, the diagnosing physician must provide the three following categories of appropriate medical evidence.47 First, there must be evidence showing the claimant has a “history of
widespread pain.” [T]hat is, pain in all quadrants of the body (the right and left sides of the body, both above and below the waist) and axial skeletal pain (the cervical spine, anterior chest, thoracic spine, or low back)—that has persisted (or that persisted) for at least 3 months. The pain may fluctuate in intensity and may not always be present.48
/// // / 47 See SSR 12-2p § II (“We will find that a person has an MDI of [fibromyalgia (FM)] if the physician diagnosed FM and provides the evidence we describe . . . .” (emphasis added)). Read strictly, this language indicates that for any evidence to be considered at this stage, its source must a medical or osteopathic doctor who did all of the following: (1) reviewed the claimant’s medical history, (2) conducted a physical exam, and (3) diagnosed the claimant with fibromyalgia. Cf. also id. § III.A.B.1 (noting that evidence from other sources may be requested and considered to determine whether the claimant has another MDI—not the MDI of fibromyalgia—and/or to evaluate the severity and functional effects of fibromyalgia or any other impairments). 48 SSR 12-2p §§ II.A.1, II.B.1. Second, the physician’s records must show EITHER (A) “At least 11 positive tender points on physical examination . . . . The positive tender points must be found bilaterally (on the left and right
sides of the body) and both above and below the waist.”49 OR (B) “Repeated manifestations of six or more FM symptoms, signs, or co- occurring conditions,50 especially manifestations of fatigue, cognitive or memory problems (‘fibro fog’), waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome.”51
Third, the physician’s records must also show that other disorders that could cause the symptoms, signs, and/or co-concurring conditions were excluded.52 This
49 SSR 12-2p §§ II.A.2. 50 Signs and co-occurring conditions may include the following: muscle pain, irritable bowel syndrome, fatigue or tiredness, thinking or remembering problems, muscle weakness, headache, pain or cramps in the abdomen, numbness or tingling, dizziness, insomnia, depression, constipation, pain in the upper abdomen, nausea, nervousness, chest pain, blurred vision, fever, diarrhea, dry mouth, itching, wheezing, Raynaud’s phenomenon, hives or welts, ringing in the ears, vomiting, heartburn, oral ulcers, loss of taste, change in taste, seizures, dry eyes, shortness of breath, loss of appetite, rash, sun sensitivity, hearing difficulties, easy bruising, hair loss, frequent urination, or bladder spasms.
SSR 12-2p § II.B.2 n.9, n.10. 51 SSR 12-2p § II.B.2. 52 SSR 12-2p §§ II.A.3, II.B.3. is because “[o]ther physical and mental disorders may have symptoms or signs that are the same or similar to those resulting from [fibromyalgia].”53 2. Plaintiff’s Lack of Appropriate Medical Evidence
As relevant here, in discussing Plaintiff’s fibromyalgia claims and diagnoses, and in rejecting fibromyalgia as an MDI, the ALJ stated as follows: I note that the claimant carries diagnoses of fibromyalgia . . . . The record does not contain the necessary diagnostic criteria for the diagnosis of fibromyalgia, and it appears to be a diagnosis in response to her complaints of pain.54 a. Plaintiff waived argument regarding the MDI of fibromyalgia. As a preliminary matter, Plaintiff has not articulated how the evidence of record satisfies the requirements set forth in Social Security Ruling 12-2p. The Court “will not ordinarily consider matters on appeal that are not specifically and 53 SSR 12-2p §§ II.A.3, II.B.3. “Some examples of other disorders that may have symptoms or signs that are the same or similar to those resulting from FM include rheumatologic disorders, myofascial pain syndrome, polymyalgia rheumatica, chronic Lyme disease, and cervical hyperextension-associated or hyperflexion- associated disorders.” Id. § II.A.3 n.7. 54 AR 72. Notably, a state-agency reviewing physician also concluded that the record did not establish fibromyalgia as a medically determinable impairment. See AR 238. distinctly argued.”55 An opening brief must contain the “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.”56 The Court therefore holds that Plaintiff has
waived arguments as to whether the ALJ should have included fibromyalgia as a severe MDI at step two.57 Moreover, even assuming arguendo that Plaintiff had not waived this issue, the Court finds no error here. b. The record lacks the appropriate medical evidence required to establish fibromyalgia as an MDI. Having reviewed the record, the Court finds it lacks the appropriate medical
evidence required to establish fibromyalgia as one of Plaintiff’s MDIs. The medical and osteopathic doctors’ treatment notes of record do not reflect the requisite history of “pain in all quadrants” of Plaintiff’s body.58 There is no record of a medical or osteopathic doctor independently diagnosing Plaintiff with fibromyalgia; rather, the earliest treatment notes of record show that Plaintiff had already been diagnosed with fibromyalgia—providing no indication of the original date of
55 Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998) (quoting United States v. Ullah, 976 F.2d 509, 514 (9th Cir.1992)); Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (same). 56 Indep. Towers of Wash. v. Washington, 350 F.3d 925, 930 (9th Cir. 2003) (quoting Fed. R. App. P. 28(a)(8)(A)). 57 See Indep. Towers, 350 F.3d at 929–30 .
58 See SSR 12-2p §§ II.A.1, II.B.1. diagnosis, identity of the diagnosing provider, or the basis for the diagnosis—and this prior diagnosis was then passed along throughout the rest of Plaintiff’s treatment history.59 Similarly, there are no records of a medical or osteopathic
doctor performing a physical exam resulting in a finding that Plaintiff had at least 11 positive tender points.60 Although it is arguable that Plaintiff repeatedly reported manifestations of six or more fibromyalgia symptoms, many of those reports were made to non-physicians and were not included in a medical or osteopathic doctor’s notes.61 Finally, the record leaves unclear whether, or to what
59 See AR 559–60 (May 2016: noting as part of Plaintiff’s first appointment with her new primary care provider that Plaintiff had previously been diagnosed with fibromyalgia and was already seeing a pain specialist); see also AR 72 (ALJ noting the medical expert testified that he saw the fibromyalgia diagnosis but that it lacked a substantiating examination); AR 191 (medical expert’s testimony).
60 See SSR 12-2p §§ II.A.2. 61 See SSR 12-2p § II.B.2; id. § II.B.2 n.9, n.10 (providing a list of fibromyalgia symptoms). See also, e.g., AR 75; AR 198 (Plaintiff testifying to having sunlight sensitivity, but in the context of medication side effects); AR 817 (Plaintiff reporting diarrhea, nausea, and vomiting); AR 857 (physician diagnosing Plaintiff with irritable bowel syndrome with diarrhea); AR 879 (Plaintiff reporting dry eyes,
nausea, muscle aches, migraines, depression, sleep disturbances, and fatigue). extent, Plaintiff’s physicians sought to exclude other disorders that could have been causing Plaintiff’s symptoms, signs, and/or co-concurring conditions.62 c. Plaintiff fails to show any error in the ALJ’s fibromyalgia
findings at step two and step three. Because the record lacks the appropriate medical evidence required by Ruling 12-2p, the Court holds the ALJ did not err in omitting fibromyalgia as one of Plaintiff’s MDIs. Without fibromyalgia as an established MDI, the ALJ was not required to proceed any further under Ruling 12-2p in analyzing Plaintiff’s fibromyalgia claims.63 For the same reason, and contrary to Plaintiff’s arguments
on appeal, the ALJ was under no obligation to consider Listing 14.09D at step three.64 3. Reconsideration Starting at Step Two on Remand Although Plaintiff failed to establish fibromyalgia as an MDI at step two, as discussed below, the Court is remanding this case for further proceedings. 62 See SSR 12-2p §§ II.A.3, II.B.3.
63 See 20 C.F.R. §§ 404.1520(c), 416.920(c); id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). Cf. also SSR 12-2p § II (“If we cannot find that the person has an MDI of FM but there is evidence of another MDI, we will not evaluate the impairment under this Ruling.”). 64 See ECF No. 27 at 14–15 (asserting that “the ALJ’s failure to consider Listing 14.09D in accordance with SSR 12-2p regarding the claimant’s fibromyalgia
constitutes harmful legal error on its own”). Accordingly, and because subsequently acquired medical evidence may alter the ALJ’s analysis, the Court finds it appropriate for the ALJ to begin reconsideration at step two.65
B. Plaintiff’s Symptom Reports: The ALJ reversibly erred. Plaintiff argues that the ALJ failed to provide sufficient reasons for rejecting her symptom reports.66 The Court agrees. 1. Plaintiff’s Symptom Reports Here, in his written decision, the ALJ summarized Plaintiff’s symptom testimony, saying in relevant part,
She testified she struggles with feelings of hopelessness and she has a lot of depression and anxiety, which a lot of times prevents her from doing things she really enjoys. She feels afraid of a lot of things, such as being around a lot of people. She does not like going out in public or someone touching her. . . . She has a hard time even getting out of bed some mornings. Therapy helps her to a certain extent, but medications have not been that helpful. . . . She has a hard time with significant stress or pressure and she will just close up. . . . Cold weather and heat affects her a lot, and her anxiety and depression are worse during the winter months. . . . She testified that when she has worked, the first month is ok, but after that, her physical issues and her anxiety 65 For instance, the developed record may have more information about Plaintiff’s bipolar disorder diagnosis. Cf. e.g., AR 809 (July 2017: examining psychologist diagnosing Plaintiff with “Bipolar I Disorder, Moderate, Current Episode Depressed); AR 878 (Feb. 2019: “Bipolar disorder - manic episodes are not frequent, but has a lot of depression.”); AR 25 (Feb. 2020: ordering Vraylar for bipolar disorder). 66 See ECF No. 27 at 15–20. and depression kick in and she will start missing work. Or, she will have a manic episode if she pushes herself too far. She keeps trying to work because she needs a home to bring her son back. . . . On really bad days, she will stay in bed and go a week without showering. She will not eat, or get dressed, or brush her hair. She might end up cutting or bite herself, and sometimes she will black out and do things like shave herself all over, but she will not remember doing it. This happens at least two days a week when she cannot function. Her pain levels affect her bad mental days as well. She testified she is in so much pain all the time, and that increases her depression and anxiety.67
2. The ALJ’s Lack of Specific, Clear, and Convincing Reasons Because the record does not contain affirmative evidence of malingering, the ALJ was required to provide specific, clear, and convincing reasons supported by substantial evidence for rejecting Plaintiff’s symptom reports after considering the relevant factors.68 a. The ALJ improperly implied that objective medical evidence was required to substantiate Plaintiff’s symptom reports. The ALJ concluded that Plaintiff’s “medically determinable impairments could reasonably be expected to cause the alleged symptoms,” but that her “assertion of total disability under the Social Security Act is not supported by the weight of the evidence.”69 Then, the ALJ went on to explain that “the objective 67 AR 75. See also AR 188–89, 193–205 (Plaintiff’s hearing testimony). 68 See 20 C.F.R. § 416.929(c); SSR 16-3p, 2016 WL 1119029, at *7; Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting Lingenfelter, 504 F.3d at 1036). 69 AR 75 (emphasis added). record . . . fails to substantiate her subjective claims.”70 Although medical evidence, or the lack thereof, can be a relevant factor in assessing the severity of a claimant’s symptoms, an ALJ is not permitted to discount the claimant’s symptom reports
merely because they are not corroborated by the medical evidence.71 Thus, the ALJ legally erred by suggesting that objective medical evidence needed to support Plaintiff’s symptom reports regarding her established medically determinable impairments. b. The ALJ failed to explain why he rejected Plaintiff’s symptom reports regarding her likely number of work absences.
Plaintiff testified that she had “a lot” of depression and anxiety, which would interfere with her motivation and cause her to be afraid of getting out and interacting with people.72 She said she could sometimes do well, and have “good” periods for about a month at a time, but she would then inevitably miss too much work, explaining, “if it’s not my depression and my anxiety, then it’s a physical issue.”73 Plaintiff testified to having “really rough days” where she would stay home.74 She stated that, unless she was having a “good” week or month, the
70 AR 75 (emphasis added). 71 See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Carmickle, 533 F.3d at 1161. 72 AR 193–94. 73 AR 200, 203.
74 AR 201. “rough” days would render her nonfunctional two or more days per week.75 She also described how she can sometimes push herself “pretty far,” but doing so tends to cause a manic episode, such as cutting herself, blacking out, and shaving her
whole body.76 Plaintiff’s symptom reports are generally consistent with her treatment history, which shows consistent reports of periods of severe depression, manic episodes, and repeatedly being fired due to excessive absences shortly after beginning a new job.77 Also, as discussed further below, her symptom reports regarding work absences are seemingly consistent with the same medical opinions
relied upon by the ALJ. As such, the ALJ erred by failing to provide any explanation whatsoever for rejecting Plaintiff’s absence-related symptom reports. c. The ALJ failed to explain how Plaintiff’s symptom reports were inconsistent with other evidence. An inconsistency between a claimant’s symptom testimony and other evidence of record can serve as a legitimate basis for discounting those symptom
75 AR 203. 76 AR 201–02. 77 See, e.g., AR 199 (Plaintiff testifying to losing job in January 2017 due to excessive medical absences); AR 919 (June 2018: reporting Plaintiff was fired “because she had too many doctors note[s]”); AR 1008 (July 2017: “She was fired in January due to medical absences. . . .”); AR 992 (July 2018: “She has also lost 3 jobs
due to medical since seeing this [case manager] last.”). reports.78 However, general findings regarding inconsistency are insufficient; “rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant’s complaints.”79
The ALJ highlighted certain parts of the record that he apparently believed were inconsistent with Plaintiff’s symptom reports. But the ALJ failed to explain how any of the cited evidence conflicted with Plaintiff’s symptom reports, and the Court finds no contradiction.80 For instance, the ALJ pointed out that “although depressed and/or anxious mood is noted in this record, she is also noted to have normal mood and affect and all mental status examinations are generally within
normal limits.”81 Yet, the mental status examinations of record generally did not address any symptoms related to Plaintiff’s medically determinable impairments of 78 See Rollins, 261 F.3d at 857; Carmickle, 533 F.3d at 1161. 79 Ghanim, 763 F.3d at 1163 (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir.
1996)); see also Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring that an ALJ sufficiently explain why he discounted the claimant’s symptom claims). 80 See Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (“[T]he ALJ must specifically identify the testimony she or he finds not to be credible and must explain what evidence undermines the testimony.”).
81 AR 76 (cleaned up). depression, anxiety, or PTSD.82 Notably, most of the records indicating Plaintiff presented with a normal mood and affect did not arise in the context of mental- health treatment, meaning Plaintiff’s mood and affect were unlikely to be of import
to the authoring provider;83 the record leaves unclear how many of the normal- mood notations were based on substantive evaluations as opposed to being included as boilerplate language.84 And when the focus of the visit was Plaintiff’s mental 82 See, e.g., AR 880 (including entries for insight, judgment, orientation, and
memory). 83 See Diedrich v. Berryhill, 874 F.3d 634, 641 (9th Cir. 2017) (noting that courts do “not necessarily expect” someone who is not a mental-health professional to document observations about the claimant’s mental-health symptoms); see also Jajo v. Astrue, 273 F. App’x 658, 660 (9th Cir. 2008) (not reported) (“The ALJ relied on the lack of corroboration on the part of the orthopedic consultant and various emergency room reports. However, the purpose of those visits was not to assess
[the claimant]’s mental health, and thus any lack of corroboration is not surprising.”). 84 See, e.g., AR 592 (being seen for gastrointestinal issues); AR 604 (being seen for hernia); AR 607–08 (treatment note for the same pain-management visit stating in one section, Normal mood, affect,” and then stating in another, “The patient is nervous/anxious.”); AR 880 (being seen for leg pain); AR 945 (being seen for
diarrhea, nausea, and vomiting). health, her mood and affect were usually noted as consistent with her claimed mental-health problems.85 More importantly, the ALJ failed to explain how the mixed notation
regarding Plaintiff’s mood and affect undermine her symptom reports. Setting aside that mental-health symptoms may be easily masked and/or overlooked if one is not specifically looking for them,86 depression and anxiety symptoms commonly wax and wane.87 Plaintiff testified to having good periods, but that overall, her various impairments—largely her depression and anxiety—caused her to frequently miss work when she tried to hold a job.88 These symptom reports
appear fully consistent with the longitudinal record. d. Reports of Plaintiff doing “well” on medications were not a legitimate basis to discount her symptom reports. The ALJ referenced notes of Plaintiff improving and doing “well” on medications.89 When evaluating symptom reports, ALJs are directed to consider 85 See AR 808 (“When asked to describe her mood, she states, ‘back and forth,
anxious, angry and irritable, a bunch of emotions wrapped into one.’ The claimant’s affect was congruent with her stated mood.”); AR 987 (noting, “She describes her mood as depressed and presents with congruent affect.”). 86 See Diedrich, 874 F.3d at 641; see also Jajo, 273 F. App’x at 660 (not reported). 87 See Holohan, 246 F.3d at 1205. 88 AR 199–205
89 AR 76. the effect that medication and other forms of treatment have on a claimant’s symptoms.90 Additionally, the ALJ must “sufficiently consider the duration of, or chronological fluctuation in, [the claimant]’s symptoms.”91 “That a person who
suffers from severe panic attacks, anxiety, and depression makes some improvement does not mean that the person’s impairments no longer seriously affect her ability to function in a workplace.”92 Reports of improvement in mental health “must be interpreted with an understanding of the patient’s overall well-being and the nature of her symptoms” as well as with an awareness that “improved functioning while being treated and
while limiting environmental stressors does not always mean that a claimant can function effectively in a workplace.”93 Without more, general references to improvement are insufficient to render repeatedly reported symptoms “inconsistent” and therefore not credible.94 To undercut a claimant’s credibility and her disability claim, the improvement in question must be of the kind and
90 20 C.F.R. § 416.929(c)(3)(iv)-(v); id. at § 404.1529(c)(3)(iv)-(v); see Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006); Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008). 91 Smith v. Kijakazi, 14 F.4th 1108, 1112 (9th Cir. 2021). 92 Holohan, 246 F.3d at 1205. 93 Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) (cleaned up).
94 See Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1200–01 (9th Cir. 2008). degree that brings her symptoms outside the Act’s definition of disability.95 The ultimate question is “whether the severity of the problem had decreased sufficiently to enable [her] to engage in gainful activity.”96
Here, while there are several reports of Plaintiff doing “well” or otherwise improving on medication,97 the longitudinal record is at best mixed regarding overall improvement in Plaintiff’s mental health; throughout her treatment history, the treatment notes suggesting progress are about equal to the notes indicating setbacks.98 Even at times when the record reflects Plaintiff was taking her medications regularly, she reported severe symptoms such as mania with
blackouts and self-cutting, as well as an inability to maintain a job due to excessive absences.99 Also, consistent with Plaintiff’s testimony, the record shows that her 95 See id.; Holohan, 246 F.3d at 1205. 96 See Warre, 439 F.3d at 1006 (discussing the issue of medical improvement in the context of terminating benefits for a prior-established disability).
97 See, e.g., AR 860, 867, 883, 919, 98 Compare, e.g., AR 847 (noting Plaintiff was started on Buspar but did not notice a difference, yet also noting “did well when she was on it”); with, e.g., AR 919 (reporting worsening anxiety and Buspar not helping as much with anxiety). 99 See, e.g., AR 991 (July 2018: reporting losing jobs “due to medical” and reporting “mania where she blacks out, cuts, and [loses] time”); AR 897 (Sept. 2018: reporting
three manic episodes since July 2018). providers were frequently changing her mental-health medications to find a combination that provided better and more sustained relief.100 The record leaves unclear to what extent Plaintiff’s various medication
combinations improved her depression and/or anxiety, particularly her ability to maintain regular attendance over a meaningful period of time. The ALJ failed to articulate how Plaintiff’s symptom reports were inconsistent with the longitudinal record, and the record lacks substantial evidence suggesting that any improvement was both sustained and of sufficient degree to enable Plaintiff to engage in gainful employment.101 Plaintiff’s improvement is therefore not a clear and convincing
reason, supported by substantial evidence, for disregarding her symptom reports. 100 See, e.g., AR 605 (May 2016: Plaintiff taking Vistaril for anxiety); AR 576 (Dec. 2016: Plaintiff taking Buspar for anxiety and stopping Effexor for depression and fibromyalgia and starting Cymbalta); AR 843–44 (noting “failed [C]ymbalta and gabapentin” and starting Plaintiff on Savella); AR 833 (Sept. 2017: “was given rx for [S]avella but has not noted a difference”); AR 939 (Jan. 2018: noting “seems
to be doing well” on increased Savella dose); AR 919 (June 2018: noting despite taking it regularly, “[B]uspar doesn’t seem to help w/ anxiety as it used to”); AR 883 (Jan. 2019: “has been off [S]avella for over a month but feels like she is less depressed, has started taking [K]ratom w/ permission w/ her pain doctor[;] helped more w/pain and mind set”). 101 See Warre, 439 F.3d at 1006; Garrison, 759 F.3d at 1017; Attmore v. Colvin, 827
F.3d 872, 877–78 (9th Cir. 2016) (“Although the ALJ pointed to isolated signs of e. The ALJ failed to explain how any of Plaintiff’s activities were inconsistent with her symptom reports. The ALJ stated that Plaintiff’s “reasonably high-functioning activities of
daily living . . . are also not supportive of her allegation of total disability under the Social Security Act.”102 In support, the ALJ cites several activities but fails to address the nature, frequency, or context of such activities. For example, the ALJ cites to a July 2017 mental evaluation to say that Plaintiff reported “spending time with grandchildren, hiking with her son, throwing the football, walking on the river, [and] fishing.”103 Yet, during that evaluation, Plaintiff merely reported that
such activities had sometimes provided relief from her depression and anxiety symptoms.104 Plaintiff provided consistent testimony about her symptoms and activities, and nothing in the record suggests she engaged in any of those activities more than rarely.105 improvement, the ALJ could not find medical improvement on that basis unless the
ups and the downs of [the Claimant]’s development showed sustained improvement.”). 102 AR 76. 103 AR 76 (citing AR 807). 104 AR 807. 105 See AR 195 (Plaintiff testifying that being around her children can “at times”
help with her depression and anxiety.) The ALJ also pointed to Plaintiff’s activities of daily living, citing to a function report submitted on Plaintiff’s behalf by her adult daughter. That report indicates that Plaintiff cares for her son and “cooks, does minor cleaning, laundry,
dishes, sweeps, shops, drives, is able to handle her own finances, reads, watches TV, plays with grandchildren, [and] visits with friends and family members in person and on the phone or computer.”106 But, the same function report cited by the ALJ put caveats on many of those activities, such as explaining that the Plaintiff received a lot of assistance around the house, her ability to cook is limited to “sandwiches and frozen dinners, sometimes some chicken, pork chops and small
side[s],” she has “emotional outbursts,” and “a lot of times she gets tired easily playing with grandbabies.”107 Again, the ALJ failed to explain how any of the cited activities undermine Plaintiff’s claims of depression and anxiety symptoms.108 Plaintiff’s ability to occasionally engage in these basic activities, often with difficulty, is not a clear and convincing reason for discounting Plaintiff’s symptom reports.109
106 AR 76 (citing AR 404–11). 107 See AR 404–11. 108 Ghanim, 763 F.3d at 1163 (“[T]he ALJ must identify what testimony is not credible and what evidence undermines the claimant’s complaints.”). 109 See Diedrich, 874 F.3d at 643 (“House chores, cooking simple meals, self-
grooming, paying bills, writing checks, and caring for a cat in one’s own home, as f. Plaintiff’s unsuccessful work attempts were consistent with her symptom reports. The ALJ wrote that Plaintiff “has worked at different jobs throughout the
relevant period, including three months of substantial gainful activity, suggesting a higher degree of functional activity than she testified to.”110 But as Plaintiff points out on appeal, “Plaintiff testified to continuing unsuccessful attempts to work due to a desire to regain custody of her son, but the inability to maintain any of her jobs due to excessive medical absenteeism, as she missed one to two days per week due to depression, anxiety, and physical issues.”111 Plaintiff’s repeated
terminations after short periods of employment are consistent with her symptom reports. “It does not follow from the fact that a claimant tried to work for a short period of time and, because of [her] impairments, failed, that [she] did not then experience [symptoms] severe enough to preclude [her] from maintaining substantial gainful employment.”112 Rather, evidence that a claimant tried to work and failed will often support allegations of disabling symptoms.113 Indeed,
well as occasional shopping outside the home, are not similar to typical work responsibilities.”). 110 AR 76–77. 111 ECF No. 27 at 20 (citing AR 199–201). 112 Lingenfelter, 504 F.3d at 1038.
113 See id. (citing example cases). attempts at work may be “especially convincing” where, as here, the claimant attempted work due to extreme circumstances—such as trying to regain custody of a child—making “it at least as likely that the claimant tried to work in spite of
[her] symptoms, not because they were less severe than alleged.”114 Plaintiff’s testimony and the record both reflect that she was repeatedly terminated from work early into a job due to excessive absences.115 In the context of being able to sustain gainful employment, even Plaintiff’s longest job would be considered an unsuccessful work attempt.116 “Where it is established that the claimant can hold a job for only a short period of time, the claimant is not capable
of substantial gainful activity.”117 Thus, the ALJ erred by relying on Plaintiff’s unsuccessful work attempts to discount her symptom reports. // / 114 See Lingenfelter, 504 F.3d at 1039. 115 See, e.g., AR 199–205, 919, 992, 1008.
116 See 20 C.F.R. § 404.1592 (An applicant is entitled to a trial work period “during which [she] may test [her] ability to work and still be considered disabled.”); 20 C.F.R. §§ 404.1574(c)(1), (3), 416.974(c)(1), (3) (noting that “work of 6 months or less [is considered] to be an unsuccessful work attempt” if the end was due to impairments); Gatliff v. Comm’r of Soc. Sec. Admin., 172 F.3d 690, 692 (9th Cir. 1999).
117 Gatliff, 172 F.3d at 694. g. The ALJ’s finding that prescribed narcotics were inconsistent with fibromyalgia is not supported by substantial evidence. In the section of the ALJ’s decision rejecting fibromyalgia as an MDI, the
ALJ stated, “Indeed, [Plaintiff] has been treated with chronic narcotics, a treatment that is not only not appropriate for fibromyalgia, but has contributed to her abdominal complaints.”118 The Court, however, finds nothing in the record, much less substantial evidence, to support the ALJ’s declaration that prescribed narcotics are “not appropriate for fibromyalgia”—in general, much less in Plaintiff’s specific case. The Court therefore holds the ALJ erred in making this
finding. For the reasons discussed above, this error was harmless at step two. Nonetheless, this error may have affected the ALJ’s assessment of Plaintiff’s credibility and symptom reports throughout the rest of the disability analysis. h. On remand, the ALJ must articulate specific, clear, and convincing reasons, supported by substantial evidence. Based on the above, the Court holds that the ALJ reversibly erred by failing to provide specific, clear, and convincing reasons, supported by substantial
evidence for discounting Plaintiff’s symptom reports.119 On remand, if the ALJ again discounts Plaintiff’s symptoms, the ALJ shall articulate specific, clear, and 118 AR 72. 119 See 20 C.F.R. § 416.929(c); SSR 16-3p at *7; Ghanim, 763 F.3d at 1163;
Lingenfelter, 504 F.3d at 1036. convincing reasons with citations to substantial evidence.120 General findings are insufficient because the Court cannot affirm discounting Plaintiff’s symptoms for a reason not articulated by the ALJ.121 Further, when assessing Plaintiff’s mental-
health symptoms, the ALJ is encouraged to give due consideration to the purpose of the visit and the specialization of the provider.122 C. Medical Opinions: Reconsideration is warranted. Because reassessment of Plaintiff’s symptom reports may influence the ALJ’s analysis regarding the various medical opinions on record, reconsideration of the medical opinions is warranted as well. On remand, especially given that the
vocational expert testified to anything over one absence per month being employment prohibitive, the medical opinions regarding Plaintiff’s likely absenteeism rate should be of particular concern, as the ALJ failed to explain in his decision why no absence-related limitations were included in Plaintiff’s RFC.123 1. Dr. Metoyer’s Opined Moderate Limitations Patrick Metoyer, PhD, performed a mental evaluation of Plaintiff in July 2017 and, as relevant here, opined as follows regarding Plaintiff’s mental-health
based limitations: Due to her mood symptoms and tendency to isolate herself from others, her ability to maintain regular attendance in the 120 Ghanim, 763 F.3d at 1163 (quoting Lingenfelter, 504 F.3d at 1036). 121 See Garrison, 759 F.3d at 1010. 122 Cf. Diedrich, 874 F.3d at 641. 123 AR 213. workplace is moderately impaired. Her ability to complete a normal work day or work week without interruption from mood symptoms is likely moderately impaired. Her ability to deal with the usual stress encountered in the workplace is markedly impaired if it involves being around other individuals, self- organization, and persistence in task.124 2. Dr. Haney’s Opined Moderate Limitations Steven Haney, MD, performed a mental residual functional capacity assessment of Plaintiff in November 2017.125 Dr. Haney opined that Plaintiff would be moderately limited in several areas, including, as relevant here, the following: “The ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances.” “The ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods.”126 In explaining these limitations, Dr. Haney stated that Plaintiff would have “occasional interference” from her psychologic symptoms, but they “are not seen as significantly interfering with her [concentration, pace, and persistence] and her ability to maintain work.” Yet, Dr. Haney went on to opine that there “may be a 124 AR 810. 125 AR 243–44. 126 AR 243. question of motivation,” and “attendance may occasionally be compromised.”127 Thus, Dr. Haney distinguished the persistence and concentration limitations from those relating to motivation and absenteeism.
3. Lack of Analysis Regarding Plaintiff’s Likely Absence Rate Neither Dr. Metoyer nor Dr. Haney provided an estimate regarding the average number of days Plaintiff was likely to miss work over any given period. The regulations generally describe a moderate limitation as meaning the claimant has a “fair” ability to function in that area “independently, appropriately, effectively, and on a sustained basis.”128 Still, “a moderate impairment is not the
same as no impairment at all. . . .”129 And the Commissioner has recognized that moderate limitations can sometimes result in disability, so they must be accounted for in the claimant’s RFC and addressed at steps four and five.130 After all, “the 127 AR 243. 128 See, e.g., Listing 12.00F (describing use of a rating scale with paragraph B criteria in evaluating mental disorders).
129 Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007). But cf. Pavlicek v. Saul, 994 F.3d 777, 783 (7th Cir. 2021) (“‘[F]air’ in ordinary usage does not mean ‘bad’ or ‘inadequate.’ So a ‘moderate’ limitation in performing at a consistent pace seems consistent with the ability to perform simple, repetitive tasks at a consistent pace.”). 130 See 81 FR 66138-01, *66147, Revised Medical Criteria for Evaluating Mental
Disorders, 2016 WL 5341732. spectrum of limitation that may constitute ‘moderate’ limitation ranges from limitations that may be close to “marked” in severity to limitations that may be close to the ‘mild’ level.”131
The ALJ assigned substantial weight to Dr. Metoyer’s opinion as well as Dr. Haney’s opinion.132 Those doctors’ opinions, Plaintiff’s symptom reports, and the rest of the record all indicate that Plaintiff’s impairments would cause her at least some difficulty in maintaining attendance at work on a sustained basis. However, without providing any explanation, the ALJ declined to include any such limitation when crafting Plaintiff’s RFC and/or when conducting the step-four and
step-five analyses. Without more, the Court cannot conclude that substantial evidence supports the ALJ’s implicit finding that Plaintiff’s impairments would not cause any significant issues with her attendance and ability to maintain employment. On remand, the ALJ is instructed to make specific findings, supported by detailed explanations and citations to substantial evidence, regarding Plaintiff’s likely average absenteeism rate. /////
//// /// // / 131 See 81 FR 66138-01, *66147, 2016 WL 5341732.
132 AR 78. The Court reverses the decision of the ALJ. Because the Court finds the record does not clearly establish that Plaintiff is entitled to benefits, the Court
remands this case for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).133 On remand, the Commissioner shall instruct the ALJ to reevaluate Plaintiff’s disability claims as set forth above, starting at step two of the sequential evaluation process. The ALJ is to give particular consideration on remand to Plaintiff’s symptom reports and the medical opinions regarding Plaintiff’s likely
average absenteeism rate, and the ALJ shall provide a detailed explanation for how such evidence was considered in crafting Plaintiff’s RFC and in reaching an ultimate determination. Accordingly, IT IS HEREBY ORDERED: 1. Plaintiff’s Motion for Summary Judgment, ECF No. 27, is 2. The Commissioner’s Motion for Summary Judgment, ECF No. 31, is
133 See Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (citing Stone v. Heckler, 761 F.2d 530 (9th Cir. 1985)). Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017); Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (“[T]he proper course, except in rare circumstances, is to remand to the agency for additional
investigation or explanation.”). 3. The decision of the ALJ is REVERSED, and this matter is REMANDED for further proceedings consistent with this order. 4. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff.
5. The case shall be CLOSED. IT IS SO ORDERED. The Clerk’s Office is directed to file this Order and provide copies to all counsel. DATED this 15th day of March 2022. s/Edward F. Shea Senior United States District Judge