1 FILED IN THE EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON 2 Jun 30, 2021
3 SEAN F. MCAVOY, CLERK
4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6
7 HEATHER C.,1 No. 4:20-CV-5114-EFS
8 Plaintiff, ORDER GRANTING PLAINTIFF’S 9 v. SUMMARY-JUDGMENT MOTION AND DENYING DEFENDANT’S 10 ANDREW M. SAUL, the Commissioner SUMMARY-JUDGMENT MOTION of Social Security, 11 Defendant. 12 13 14 Plaintiff Heather C. appeals the denial of benefits by the Administrative 15 Law Judge (ALJ). She alleges the ALJ 1) improperly determined her severe 16 impairments, 2) improperly discounted her symptoms as described by both Plaintiff 17 and her friend, 3) improperly considered the medical opinions, and 4) erred at step 18 five. In contrast, Defendant Commissioner of Social Security asks the Court to 19 affirm the ALJ’s decision. After reviewing the record and relevant authority, the 20
21 1 To protect the privacy of the social-security Plaintiff, the Court refers to her by 22 first name and last initial or as “Plaintiff.” See LCivR 5.2(c). 23 1 Court grants Plaintiff’s Motion for Summary Judgment, ECF No. 14, and denies 2 the Commissioner’s Motion for Summary Judgment, ECF No. 15. 3 I. Five-Step Disability Determination 4 A five-step sequential evaluation process is used to determine whether an 5 adult claimant is disabled.2 Step one assesses whether the claimant is currently 6 engaged in substantial gainful activity.3 If the claimant is engaged in substantial 7 gainful activity, benefits are denied.4 If not, the disability evaluation proceeds to 8 step two.5 9 Step two assesses whether the claimant has a medically severe impairment, 10 or combination of impairments, which significantly limits the claimant’s physical 11 or mental ability to do basic work activities.6 If the claimant does not, benefits are 12 denied.7 If the claimant does, the disability evaluation proceeds to step three.8 13 14 15
16 2 20 C.F.R. § 416.920(a). 17 3 Id. § 416.920(a)(4)(i). 18 4 Id. § 416.920(b). 19 5 Id. 20 6 Id. § 416.920(a)(4)(ii). 21 7 Id. § 416.920(c). 22 8 Id. 23 1 Step three compares the claimant’s impairments to several recognized by the 2 Commissioner as so severe as to preclude substantial gainful activity.9 If an 3 impairment meets or equals one of the listed impairments, the claimant is 4 conclusively presumed to be disabled.10 If an impairment does not, the disability 5 evaluation proceeds to step four. 6 Step four assesses whether an impairment prevents the claimant from 7 performing work she performed in the past by determining the claimant’s residual 8 functional capacity (RFC).11 If the claimant can perform past work, benefits are 9 denied.12 If the claimant cannot perform past work, the disability evaluation 10 proceeds to step five. 11 Step five, the final step, assesses whether the claimant can perform other 12 substantial gainful work—work that exists in significant numbers in the national 13 economy—considering the claimant’s RFC, age, education, and work experience.13 14 If so, benefits are denied. If not, benefits are granted.14 15 16
17 9 Id. § 416.920(a)(4)(iii). 18 10 Id. § 416.920(d). 19 11 Id. § 416.920(a)(4)(iv). 20 12 Id. 21 13 Id. § 416.920(a)(4)(v); Kail v. Heckler, 722 F.2d 1496, 1497-98 (9th Cir. 1984). 22 14 20 C.F.R. § 416.920(g). 23 1 The claimant has the initial burden of establishing she is entitled to 2 disability benefits under steps one through four.15 At step five, the burden shifts to 3 the Commissioner to show the claimant is not entitled to benefits.16 4 II. Factual and Procedural Summary 5 In December 2017, Plaintiff filed a Title 16 application alleging disability.17 6 Her disability claim was denied initially and upon reconsideration.18 An 7 administrative hearing was held by video before Administrative Law Judge Laura 8 Valente.19 9 When denying Plaintiff’s disability claim, the ALJ found: 10 • Step one: Plaintiff had not engaged in substantial gainful activity 11 since October 3, 2017, the amended alleged onset date. 12 • Step two: Plaintiff had the following medically determinable severe 13 impairments: degenerative disc disease, osteoarthritis of the right 14 knee, fibromyalgia, obesity, personality disorder, and depressive 15 disorder. 16 17
18 15 Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 19 16 Id. 20 17 AR 232-40. 21 18 AR 168-71, 178-80. 22 19 AR 33-55. 23 1 • Step three: Plaintiff did not have an impairment or combination of 2 impairments that met or medically equaled the severity of one of the 3 listed impairments. 4 • RFC: Plaintiff had the RFC to perform sedentary work except that she 5 could: 6 stand and/or walk for up to two hours and sit for six hours in an eight-hour workday; never climb ladders, ropes, or 7 scaffolds; occasionally push and/or pull with the right lower extremity; and occasionally crouch, crawl, balance, kneel, 8 stoop, and climb ramps or stairs. [She could] perform simple routine tasks in two-hour increments; work 9 superficially and occasionally with the general public; interact occasionally with supervisors; and work in the 10 same room with coworkers, but not in coordination with them. 11
• Step four: Plaintiff was unable to perform past relevant work. 12 • Step five: considering Plaintiff’s RFC, age, education, and work 13 history, Plaintiff could perform work that existed in significant 14 numbers in the national economy, such as touchup screener, table 15 worker, and toy stuffer.20 16 When assessing the medical-opinion evidence, the ALJ found: 17 • the reviewing opinions of Norman Staley, M.D., and Howard Platter, 18 M.D., persuasive. 19 • the reviewing opinion of Jon Anderson, Ph.D., somewhat persuasive. 20 21
22 20 AR 13-32. 23 1 • the reviewing opinion of Tasmyn Bowes, Psy.D., the evaluating 2 opinion of Mary Alice Hardisen, ARNP, and the treating opinion of 3 Caryn Jackson, M.D., unpersuasive.21 4 The ALJ also found Plaintiff’s medically determinable impairments could 5 reasonably be expected to cause some of the alleged symptoms, but her statements 6 concerning the intensity, persistence, and limiting effects of those symptoms were 7 not entirely consistent with the medical evidence and other evidence.22 Likewise, 8 the ALJ discounted the lay statement from Plaintiff’s friend.23 9 Plaintiff requested review of the ALJ’s decision by the Appeals Council, 10 which denied review.24 Plaintiff timely appealed to this Court. 11 III. Standard of Review 12 A district court’s review of the Commissioner’s final decision is limited.25 The 13 Commissioner’s decision is set aside “only if it is not supported by substantial 14 15
16 21 AR 23-24. Although the ALJ summarized the reviewing opinion of Renee 17 Eisenhauer, Ph.D., the ALJ did not identify whether she found the opinion 18 persuasive. AR 24. 19 22 AR 21-24. 20 23 AR 23. 21 24 AR 1-11. 22 25 42 U.S.C. § 405(g). 23 1 evidence or is based on legal error.”26 Substantial evidence is “more than a mere 2 scintilla but less than a preponderance; it is such relevant evidence as a reasonable 3 mind might accept as adequate to support a conclusion.”27 Moreover, because it is 4 the role of the ALJ and not the Court to weigh conflicting evidence, the Court 5 upholds the ALJ’s findings “if they are supported by inferences reasonably drawn 6 from the record.”28 The Court considers the entire record.29 7 Further, the Court may not reverse an ALJ decision due to a harmless 8 error.30 An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 9 10 11 12
13 26 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). 14 27 Id. at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). 15 28 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 16 29 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (The court “must 17 consider the entire record as a whole, weighing both the evidence that supports and 18 the evidence that detracts from the Commissioner's conclusion,” not simply the 19 evidence cited by the ALJ or the parties.) (cleaned up); Black v. Apfel, 143 F.3d 383, 20 386 (8th Cir. 1998) (“An ALJ's failure to cite specific evidence does not indicate that 21 such evidence was not considered[.]”). 22 30 Molina, 674 F.3d at 1111. 23 1 nondisability determination.”31 The party appealing the ALJ’s decision generally 2 bears the burden of establishing harm.32 3 IV. Analysis 4 A. Step Two (Severe Impairment): Plaintiff establishes consequential error. 5
Plaintiff argues the ALJ erred at step two by failing to identify her 6 obstructive sleep apnea with hypoxemia, left knee disorder, and cardiac disorder as 7 severe impairments. At step two of the sequential process, the ALJ must determine 8 whether the claimant suffers from a “severe” impairment, i.e., one that 9 significantly limits her physical or mental ability to do basic work activities.33 This 10 involves a two-step process: 1) determining whether the claimant has a medically 11 determinable impairment based on the objective medical evidence, consisting of 12 signs, symptoms, or laboratory findings, and 2) if so, determining whether the 13 impairment is severe. A medically determinable impairment is not severe if the 14 “medical evidence establishes only a slight abnormality or a combination of slight 15 abnormalities which would have no more than a minimal effect on an individual’s 16 ability to work,”34 including basic work activities such as walking, standing, 17 18
19 31 Id. at 1115 (cleaned up). 20 32 Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 21 33 20 C.F.R. § 416.920(c); see also id. § 416.908. 22 34 Soc. Sec. Ruling (SSR) 85-28. 23 1 sitting, lifting, pushing, pulling, reaching, carrying, or handling; seeing, hearing, 2 and speaking; understanding, carrying out and remembering simple instructions; 3 responding appropriately to supervision, coworkers and usual work situations; and 4 dealing with changes in a routine work setting.35 5 Step two is “a de minimus screening device [used] to dispose of groundless 6 claims.”36 “Great care should be exercised in applying the not severe impairment 7 concept.”37 8 Here, the ALJ found Plaintiff had the severe impairments of degenerative 9 disc disease, osteoarthritis of the right knee, fibromyalgia, obesity, personality 10 disorder, and depressive disorder.38 The ALJ did not discuss obstructive sleep 11 apnea with hypoxemia, a left knee disorder, or a cardiac disorder. The medical 12 record, however, contains objective evidence of these impairments. 13 In 2018, a physician diagnosed Plaintiff with obstructive sleep apnea with 14 independent hypoxemia with oxygen levels less than 88 percent.39 As to Plaintiff’s 15 left knee, imaging from 2018 revealed mild to moderate arthrosis of the medial and 16 lateral compartments, along with moderate arthrosis of the patellofemoral 17
18 35 20 C.F.R. § 416.921(a); SSR 85-28. 19 36 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). 20 37 SSR 85-28. 21 38 AR 19. 22 39 AR 844-45. 23 1 compartment.40 As to the cardiac disorder, an echocardiogram in 2018 revealed 2 grade 2 moderate diastolic dysfunction, left ventricular hypertrophy, and a mildly 3 enlarged left atrial size.41 Because the record contains objective medical evidence of 4 sleep apnea with hypoxemia, degenerative arthrosis in the left knee, and a cardiac 5 disorder, the ALJ should have discussed these impairments at step two of the 6 disability analysis, including whether these impairments had more than a minimal 7 effect on Plaintiff’s ability to work.42 8 The Commissioner argues that any step-two error is harmless because the 9 ALJ resolved step two in Plaintiff’s favor and moved on with the sequential 10 analysis. While the step-two error may be harmless at step two because the ALJ 11 resolved that step in Plaintiff’s favor, the ALJ did not consider any of these 12 impairments during the later sequential steps—or at least did not include such 13 findings, record citations, or analysis to allow this Court to determine whether the 14 15 16
17 40 AR 801. 18 41 AR 874-75. 19 42 The medical record indicate that Plaintiff was likely impacted by these 20 conditions. See, e.g., AR 393, 506-08, 869 (discussing abnormal gait or lower leg 21 strength); AR 482 (“easily fatigued with LE strengthening exercises”); & AR 872, 22 882 (chest discomfort). 23 1 ALJ considered these impairments and any resulting limitations.43 The Court 2 cannot be certain, therefore, that the step-two error was not prejudicial at the later 3 steps. 4 B. Plaintiff’s Symptom Reports: Plaintiff establishes consequential 5 error. 6 Plaintiff argues the ALJ failed to provide valid reasons for rejecting her 7 symptom reports. When examining a claimant’s symptoms, the ALJ utilizes a two- 8 step inquiry. “First, the ALJ must determine whether there is objective medical 9 evidence of an underlying impairment which could reasonably be expected to 10 produce the pain or other symptoms alleged.”44 Second, “[i]f the claimant meets the 11 first test and there is no evidence of malingering, the ALJ can only reject the 12 claimant’s testimony about the severity of the symptoms if [the ALJ] gives ‘specific, 13 clear and convincing reasons’ for the rejection.”45 General findings are insufficient; 14 rather, the ALJ must identify what symptom claims are being discounted and what 15
16 43 See Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005) (“Assuming without 17 deciding that this omission constituted legal error [at step two], it could only have 18 prejudiced Burch in step three (listing impairment determination) or step five 19 (RFC) because the other steps, including this one, were resolved in her favor.”). 20 44 Molina, 674 F.3d at 1112. 21 45 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting Lingenfelter, 504 22 F.3d at 1036). 23 1 evidence undermines these claims.46 “The clear and convincing [evidence] standard 2 is the most demanding required in Social Security cases.”47 If an ALJ does not 3 articulate specific, clear, and convincing reasons to reject a claimant’s symptoms, 4 the claimant’s corresponding limitations must be included in the RFC.48 5 Factors to be considered in evaluating the intensity, persistence, and 6 limiting effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 7 duration, frequency, and intensity of pain or other symptoms; 3) factors that 8 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 9 side effects of any medication the claimant takes or has taken to alleviate pain or 10 other symptoms; 5) treatment, other than medication, the claimant receives or has 11 received for relief of pain or other symptoms; 6) any non-treatment measures the 12 claimant uses or has used to relieve pain or other symptoms; and 7) any other 13
14 46 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995), and Thomas v. 15 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 16 explain why he discounted claimant’s symptom claims)). 17 47 Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r 18 of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 19 48 Lingenfelter, 504 F.3d at 1035 (“[T]he ALJ failed to provide clear and convincing 20 reasons for finding Lingenfelter’s alleged pain and symptoms not credible, and 21 therefore was required to include these limitations in his assessment of 22 Lingenfelter’s RFC.”). 23 1 factors concerning the claimant’s functional limitations and restrictions due to pain 2 or other symptoms.49 The ALJ is instructed to “consider all of the evidence in an 3 individual’s record” to “determine how symptoms limit ability to perform work- 4 related activities.”50 5 At the hearing, Plaintiff testified she has difficulties balancing when 6 standing, is unable to stand for a long period of time (more than 15 minutes), walks 7 with a cane, feels unsteady when walking for long distances or on stairs, is unable 8 to sit for long periods of time, is limited by her leg and back pain, has hand cramps 9 and numbness, is emotionally impacted by her loss of physical functioning, has 10 anxiety about falling, and suffers drowsiness due to medications.51 The ALJ found 11 Plaintiff’s statements concerning the intensity, persistence, and limiting effects of 12 her “medically determinable impairments” “not entirely consistent with the 13 medical evidence and the other evidence in the record.”52 To support this 14 boilerplate finding, the ALJ highlighted: 15 • “Plaintiff’s musculoskeletal impairments of degenerative disc disease, 16 osteoarthritis of the right knee, and fibromyalgia” were consistently 17
18 49 SSR 16-3p; 20 C.F.R. § 416.929(c). 19 50 SSR 16-3p. 20 51 AR 27-49. Plaintiff also reported symptoms in her Function Reports. AR 274-83, 21 297-314. 22 52 AR 21. 23 1 treated with “conservative maintenance treatment,” which included 2 physical therapy, pool exercises, taking Vicodin and other opioid 3 medications, a lumbar spine medial block injection, right-knee injections 4 and arthroscopy surgery, use of a single point cane, diet, exercise, 5 nutritionist counseling, over-the-counter anti-inflammatories, gentle 6 stretching, light exercise, ice/heat, and soaking in Epsom salts. 7 • Imaging of her lumbar spine showed degenerative spondylosis but 8 without acute abnormalities or abnormal motion on flexion or extension 9 and only mild degenerative disc changes. 10 • Plaintiff noted that right knee injections and arthroscopy surgery 11 provided moderate relief for her knee pain. 12 • Physical exams in 2018 did not mention any fibromyalgia tender points 13 and she had normal inspection and full range of motion bilaterally in her 14 upper and lower extremities in July 2019.53 15
16 53 AR 21-22 (citing AR 385, 444 (Vicodin/Naproxen for chronic pain); AR 482-84 17 (physical therapy); AR 788 (medial branch block injection); AR 501 (right-knee 18 injection); AR 783 (arthroscopy surgery); AR 730 (treating fibromyalgia 19 “conservatively at this time” with anti-inflammatories, stretching, light exercises, 20 relaxation techniques, ice, and Epsom salt); AR 804 (engaging in pre-diabetic 21 weight-loss program and physical therapy); AR 811 (shallow water aquatic 22 session). 23 1 The Court’s review is limited to the reasons provided by the ALJ.54 The only 2 specific reason given by the ALJ to discount Plaintiff’s physical pain and symptoms 3 was that Plaintiff received conservative maintenance treatment. The ALJ properly 4 considered the amount and type of treatment when assessing the intensity and 5 persistence of Plaintiff’s symptoms.55 Yet, the ALJ’s finding was conclusory: the 6 ALJ failed to explain how the treatment constituted conservative maintenance 7 treatment or how it was inconsistent with Plaintiff’s reported symptoms. For 8 instance, the ALJ did not explain why right-knee arthroscopy surgery to repair a 9 tear of the medial meniscus, epidural injections to the lumbar spine and right knee, 10 or continued treatment with opioid pain medication constituted conservative 11 maintenance treatment for Plaintiff’s impairments.56 12 The ALJ also generally found that Plaintiff’s physical pain and symptoms 13 were inconsistent with the objective medical evidence. While an ALJ may consider 14 whether a claimant’s symptoms are consistent with the objective medical evidence, 15
16 54 Garrison, 759 F.3d at 1010 (recognizing that the court’s review is limited to a 17 reason relied on by the ALJ). 18 55 See 20 C.F.R. § 416.929(c)(4). 19 56 See Revels v. Berryhill, 874 F.3d 648, 667 (9th Cir. 2017) (finding the ALJ erred 20 for failing to explain why the treatment, including facet and epidural injections to 21 the claimant’s neck and back and prescribed main medications, was conservative 22 treatment for the claimant’s fibromyalgia). 23 1 the ALJ may not solely rely on this reason to discount a claimant’s symptoms and 2 this reason may not be boilerplate.57 Here, the ALJ failed to support her boilerplate 3 finding with substantial evidence. For instance, the ALJ failed to explain how the 4 short-term pain relief provided by the knee injections and the arthroscopy surgery 5 were inconsistent with Plaintiff’s longitudinal pain, reduced mobility and range of 6 motion, and variable reduced strength in her lower extremities.58 Rather than 7 consider Plaintiff’s knee, back, and fibromyalgia conditions in light of the overall 8 diagnostic record,59 the ALJ cherry picked normal physical findings from a July 9 10 11
12 57 Trevizo v. Berryhill, 871 F.3d 664, 678–79, 682 (9th Cir. 2017) (recognizing that 13 boilerplate language does not satisfy the specific, clear, and convincing reason 14 standard). 15 58 See, e.g., AR 482-83, 494, 549, 807-08, 827, 830, 833 (noting reduced lower 16 extremity knee strength and hip flexion). See Garrison, 759 F.3d at 1015 17 (“Garrison’s medical records show that physical therapy afforded her only partial 18 and short-lived relief of her lower back pain, and no effective relief for her 19 radiating neck pain. . . . [E]pidural shots . . . relieved Garrison’s back pain for only 20 variable, brief periods of time, ranging from a couple of months to a few days.”). 21 59 Ghanim, 763 F.3d at 1164 (Treatment records must be viewed in light of the 22 overall diagnostic record.”). 23 1 2019 appointment for chest pain.60 In comparison, a treatment record pertaining to 2 a physical incapacity examination in August 2019 revealed pain to palpation at 3 L4/5 and across the iliac process bilaterally, an equivocal straight leg raise on the 4 right, positive straight leg raise on the left, decreased range of motion in the right 5 knee with flexion, and stiffness in the right knee with passive range of motion.61 6 Similarly, a physical therapy treatment note from June 2019 indicated tenderness 7 in several areas and decreased range of motion.62 The ALJ improperly cherry 8 picked normal physical findings from a chest-pain appointment to support her 9 conclusion that Plaintiff’s treatment remedied her long-term back, knee, and 10 fibromyalgia pain and symptoms.63 Moreover, that Plaintiff’s symptoms may have 11 12
13 60 AR 855. See Ghanim, 763 F.3d at 114 (recognizing that a claimant’s symptoms 14 should not be discounted for nonrelevant normal findings); Orn v. Astrue, 495 F.3d 15 625, 634 (9th Cir. 2007) (requiring examination notes to be considered for the 16 context in which they were prepared). 17 61 AR 994. 18 62 AR 812-13. 19 63 Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (cleaned up) (“Although it 20 is within the power of the Secretary to make findings concerning the credibility of a 21 witness …, he cannot reach a conclusion first, and then attempt to justify it by 22 ignoring competent evidence in the record that suggests an opposite result.”). 23 1 been inconsistent with the objective medical evidence cannot serve as the sole 2 reason to discount her reported symptoms.64 3 As to Plaintiff’s mental-health symptoms, the ALJ again failed to offer a 4 specific reason to discount these symptoms. Instead, the ALJ merely summarized 5 some of the mental-health treatment records and highlighted that Plaintiff was in 6 therapy, she was prescribed psychotropic medications, and she “had routinely 7 unremarkable mental status exams” with good or euthymic moods during 8 treatment.65 That Plaintiff sought mental-health treatment through therapy and 9 took prescribed psychotropic medications is not a legitimate—let alone a clear and 10 convincing—reason to discount her mental-health symptoms. As to the ALJ’s 11 finding that Plaintiff had routinely “unremarkable” mental status exams with good 12 or euthymic moods, several of the cited treatment notes indicate that Plaintiff was 13 easily distracted and difficult to redirect with purposefully latent and pressured 14 speech, uncomfortable due to pain, anxious, and/or odiferous with pressured 15 speech.66 Considering these abnormal findings in the cited “unremarkable” 16 treatment notes, the ALJ’s decision to discount Plaintiff’s symptoms because of the 17
18 64 See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); see also Varney v. 19 Sec’y of HHS, 846 F.2d 581, 585 (9th Cir. 1998) (superseded in part on other 20 grounds by statute). 21 65 AR 22-23. 22 66 AR 382-83, 386-88, 461-62, 536, 564. 23 1 “unremarkable” mental status exams is not supported by substantial evidence. 2 Moreover, that Plaintiff’s mental-health symptoms may have been inconsistent 3 with the objective medical evidence cannot serve as the sole reason to discount her 4 symptoms.67 5 The ALJ also failed to consider Plaintiff’s reported fatigue caused by her 6 medications. One of the factors to consider when evaluating the intensity, 7 persistence, and limiting effects of Plaintiff’s symptoms includes the side effects of 8 her medication.68 The record reflects Plaintiff was observed as tired, easily fatigued 9 with lower extremity strengthening exercises during her physical therapy, and 10 tired upon arriving to a physical therapy appointment because she had to walk to 11 the bus stop and the clinic.69 Although an ALJ may discount symptom testimony, 12 such as the reported medication side effects, by providing a specific, clear, and 13 convincing reason, supported by the record,70 the ALJ failed to do so here. 14 For the reasons explained above, the ALJ did not have specific, clear, and 15 convincing reasons to reject Plaintiff’s testimony about the intensity, persistence, 16 or limiting effect of her pain. The ALJ, therefore, erred in rejecting Plaintiff’s 17
18 67 See Rollins, 261 F.3d at 857; see also Varney, 846 F.2d at 585 (superseded in part 19 on other grounds by statute). 20 68 SSR 16-3p; 20 C.F.R. § 416.929(c). 21 69 AR 939, 482, 498. 22 70 Thomas, 278 F.3d at 960. 23 1 symptom testimony. This error was consequential. Plaintiff testified, in part, that 2 she is unable to sit for long periods of time, has to elevate her legs to obtain relief, 3 and has difficulty standing without pain.71 The vocational expert testified that an 4 individual who has to elevate their feet above their heart throughout the day would 5 not be able to sustain employment.72 Had the ALJ credited Plaintiff’s testimony 6 about her limitations and pain, Plaintiff would have been determined disabled. 7 As explained below, on remand, if the ALJ discount’s Plaintiff’s symptom 8 testimony, the ALJ must be specific about which testimony is being rejected and 9 cite to specific evidence to explain why each symptom is being rejected. The ALJ’s 10 reasons for rejecting the symptom testimony must be clear and convincing. 11 C. Lay Witness: Plaintiff establishes consequential error. 12 The ALJ discounted the statement from Plaintiff’s friend because the 13 symptoms reported by the friend were similar to the physical and mental 14 symptoms reported by Plaintiff, which the ALJ discounted as being inconsistent 15 with the objective medical evidence and other evidence.73 “Testimony by a lay 16 witness provides an important source of information about a claimant’s 17 impairments, and an ALJ can reject it only by giving specific reasons germane to 18 19
20 71 AR 43-48. 21 72 AR 53. 22 73 AR 21-23. 23 1 each witness.”74 As discussed above, the ALJ failed to give specific reasons 2 supported by substantial evidence for discounting Plaintiff’s symptom reports, 3 relying instead on a boilerplate finding. That error impacted the ALJ’s assessment 4 of the friend’s statement, which the ALJ must reevaluate on remand. 5 D. Medical Opinions: Plaintiff establishes consequential error. 6 Plaintiff argues the ALJ erred by not fully crediting the opinions of 7 Dr. Bowes, Dr. Jackson, and Nurse Hardison. 8 1. Standard75 9 An ALJ must consider and evaluate the persuasiveness of all medical 10 opinions or prior administrative medical findings.76 The ALJ need not however 11 “give any specific evidentiary weight . . . to any medical opinion(s).”77 A medical 12 opinion is a statement from a medical source about what the claimant can still do 13
14 74 Regennitter v. Comm’r, 166 F.3d 1294, 1298 (9th Cir. 1999). 15 75 For claims filed on or after March 27, 2017, such as Plaintiff’s claim, new 16 regulations apply that change the framework for how an ALJ evaluates medical 17 opinion evidence. Revisions to Rules Regarding the Evaluation of Medical 18 Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 2017); 20 C.F.R. § 19 416.920c. 20 76 20 C.F.R. § 416.920c(a), (b). 21 77 Revisions to Rules, 2017 WL 168819, 82 Fed. Reg. 5844, at 5867-68; see 20 C.F.R. 22 § 416.920c(a). 23 1 despite her impairments and whether the claimant has one or more impairment- 2 related limitations in the following abilities: 3 • performing physical demands of work activities 4 • performing mental demands of work activities (such as understanding, 5 remembering, carrying out instructions, maintaining concentration, 6 persistence, or pace, and responding appropriately to supervision, co- 7 workers, or work pressures in a work setting) 8 • performing sensory demands of work 9 • adapting to environmental conditions.78 10 The factors for evaluating the persuasiveness of medical opinions and prior 11 administrative medical findings include, but are not limited to, supportability, 12 consistency, relationship with the claimant, and specialization.79 Supportability 13 14 15
16 78 20 C.F.R. § 416.913(a). 17 79 Id. § 416.920c(c)(1)-(5). When assessing the medical source’s relationship with 18 the claimant, the ALJ is to consider the treatment length, frequency, purpose, and 19 extent, and whether an examination was conducted. Id. The ALJ may also consider 20 whether the medical source has familiarity with the other record evidence or an 21 understanding of the disability program’s policies and evidentiary requirements. 22 Id. 23 1 and consistency are the most important factors, and the ALJ is required to explain 2 how both of these factors were considered:80 3 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to 4 support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior 5 administrative medical finding(s) will be.
6 (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other 7 medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical 8 finding(s) will be.81
9 Typically, the ALJ may, but is not required to, explain how the other factors were 10 considered.82 11 12 13 14 15
16 80 Id. § 416.920c(b)(2). 17 81 Id. § 416.920c(c)(1)-(2). 18 82 Id. § 416.920c(b)(2). When two or more medical opinions or prior administrative 19 findings “about the same issue are both equally well-supported . . . and consistent 20 with the record . . . but are not exactly the same,” the ALJ is required to explain 21 how “the other most persuasive factors in paragraphs (c)(3) through (c)(5)” were 22 considered. Id. § 416.920c(b)(3). 23 1 2. Dr. Bowes 2 Based on a psychological examination in August 2019, Dr. Bowes diagnosed 3 Plaintiff with post-traumatic stress disorder (PTSD) and persistent depressive 4 disorder (chronic major depression, severe).83 Dr. Bowes opined: 5 • moderate limitations with Plaintiff’s ability to understand, remember, 6 and persist in tasks by following very short and simple instructions, 7 learn new tasks, perform routine tasks without special supervision, 8 adapt to changes in a routine setting, make simple work-related 9 decisions, beware of normal hazards and take appropriate 10 precautions, ask simple questions or request assistance, and set 11 realistic goals and plan independently. 12 • marked limitations with Plaintiff’s ability to understand, remember, 13 and persist in tasks by following detailed instructions, communicate 14 and perform effectively in a work setting, and maintain appropriate 15 behavior in a work setting. 16 • severe limitations with Plaintiff’s ability to perform activities within a 17 schedule, maintain regular attendance, and be punctual within 18 customary tolerances without special supervision, and complete a 19 normal workday and workweek without interruptions. 20 21
22 83 AR 1006-14. 23 1 The ALJ found Dr. Bowes’ opinion to be unsupported by both her findings 2 during the examination, which the ALJ described as a “generally unremarkable 3 mental status exam,” and the longitudinal treatment record.84 The ALJ mentioned 4 that Dr. Bowes observed Plaintiff with a dysphoric mood and blunted affect, but 5 the ALJ did not mention that Dr. Bowes also observed Plaintiff to have low energy, 6 noted that Plaintiff’s depression and anxiety scores were in the severe range, and 7 found Plaintiff’s fund of knowledge and concentration to be not within normal 8 limits, citing the Trails testing results as support for the abnormal concentration 9 finding. While the ALJ need not discuss every finding and reason given by the 10 medical provider, the ALJ must do more than state conclusions.85 Here, the ALJ’s 11 analysis was conclusory and was not supported by the cited evidence. Moreover, on 12 several occasions, Plaintiff was observed as unable to understand material, highly 13 distractible, and/or unable to be redirected.86 The ALJ’s brief analysis simply 14 cherry picked “normal” findings without discussing them in the context of the 15 16
17 84 AR 23-24. 18 85 Garrison, 759 F.3d at 1012; Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 19 1012 (9th Cir. 2003) (stating that “in interpreting the evidence and developing the 20 record, the ALJ does not need to discuss every piece of evidence” (quotation marks 21 omitted)). 22 86 See, e.g., AR 383, 387-88, 409, 525, 610-11, 624, 640. 23 1 waxing and waning of Plaintiff’s mental-health symptoms.87 This was error. On 2 remand, the ALJ must more fully explain whether Dr. Bowes’ opinion was 3 supported by the test results, clinical interview, and observations, and whether the 4 opinion was consistent with the longitudinal medical record. 5 3. Dr. Jackson 6 Dr. Jackson treated Plaintiff for several years and in August 2019 issued an 7 opinion diagnosing Plaintiff with lumbar spondylosis (low back pain and sciatica), 8 primary osteoarthritis of the right knee, fibromyalgia, bipolar disorder, PTSD, and 9 prediabetes–hypertension.88 Dr. Jackson opined that Plaintiff was severely limited, 10 i.e., that she was unable to meet the demands of sedentary work, and that she was: 11 • mildly limited by her prediabetes–hypertension 12 • moderately to markedly limited due to her fibromyalgia 13 • markedly limited by her lumbar spondylosis (low back pain and sciatica) 14 and bipolar disorder 15 • markedly to severely limited due to her PTSD and right-knee 16 osteoarthritis. 17
18 87 Ghanim, 763 F.3d at 1164 (emphasizing that treatment records must be viewed 19 considering the overall diagnostic record); Gallant, 753 F.2d at 1456 (disallowing 20 the ALJ from cherry picking evidence to support a conclusion that contradicts the 21 overall diagnostic record). 22 88 AR 991-93. 23 1 The ALJ discounted Dr. Jackson’s opinion because it was inconsistent with 2 the complete medical record and Dr. Jackson’s accompanying treatment record, 3 which noted that Plaintiff’s mental status exam was normal and recommended 4 that Plaintiff take over-the-counter medication for her musculoskeletal pain.89 Yet, 5 the ALJ did not discuss that Plaintiff was observed with pain on L4/5 and across 6 the iliac process bilaterally and had an equivocal straight leg raise on the right, a 7 positive straight leg raise on the left, some decreased range of motion on flexion 8 with the right knee, and stiffness in the right knee with passive range of motion, or 9 that Plaintiff was prescribed opiate pain medication. In addition, the ALJ did not 10 discuss that although Dr. Jackson found Plaintiff to be orientated with appropriate 11 mood and affect, Dr. Jackson also found Plaintiff’s depression screening score 12 consistent with severe depression and recommended that Plaintiff follow-up with 13 her mental-health treatment providers. The ALJ’s summary analysis of Dr. 14 Jackson’s opinion indicates the ALJ cherry picked the “normal” findings without 15 considering the complete diagnostic picture.90 This was error. On remand, the ALJ 16 17
18 89 AR 23 (citing AR 994-1004). 19 90 See Ghanim, 763 F.3d at 1164 (emphasizing that treatment records must be 20 viewed considering the overall diagnostic record); Gallant, 753 F.2d at 1456 21 (disallowing the ALJ from cherry picking evidence to support a conclusion that 22 contradicts the overall diagnostic record). 23 1 is to meaningfully articulate whether Dr. Jackson’s opinion is supported by and 2 consistent with the record. 3 4. Nurse Hardison 4 Nurse Hardison evaluated Plaintiff in October 2017 and diagnosed her with 5 hypertension, ganglion cyst on her right hand, right knee compartmental 6 osteoarthritis, right knee chondromalacia-patella, right Achilles’ tendonitis, 7 fibromyalgia, polycystic ovary syndrome, PTSD, borderline personality, and bipolar 8 disorder. Nurse Hardison noted that Plaintiff’s mental-health conditions were 9 managed by others and opined that Plaintiff’s ganglion cyst significantly interfered 10 with her ability to perform one or more basic work-related activities and her 11 fibromyalgia, right knee, and Achilles conditions either very significantly or 12 severely interfered with her ability to perform one or more basic work-related 13 activities.91 14 The ALJ found Nurse Hardison’s opinion unpersuasive because it was more 15 limiting than her objective findings, which the ALJ found contained unremarkable 16 range-of-motion test results and did not reveal any significant deviations from the 17 form’s referenced values.92 However, the range-of-joint-motion form indicated the 18 following deviations: neck lateral bending, 40/45 degrees on the left and right; neck 19
20 91 Nurse Hardison opined that Plaintiff’s other physical impairments did not 21 interfere with her ability to work. 22 92 AR 23. 23 1 rotation, 60/80 degrees on the left and right; left hip backward extension, 20/30 2 degrees; right hip backward extension, 20/30 degrees; hip flexion with right knee 3 flexed, 50/100 degrees; hip flexion with right knee extended, 70/100 degrees; right 4 and left hip adduction, 10/20 degrees; right and left hip abduction, 20/40; and right 5 knee flexion, 80/150 degrees. The ALJ did not explain how these deviations were 6 not “significant.” Moreover, Nurse Hardison reviewed an MRI revealing bilateral 7 facet degeneration at L3/4 and an EMG revealing decreased innervation and 8 axonal loss bilaterally. Because Nurse Hardison’s opinion was based on range-of- 9 motion deviations and imaging indicating impairment, the ALJ’s conclusory 10 findings are inadequate without more explanation or supporting evidence. 11 E. RFC 12 Plaintiff argues the RFC is consistent with disability because the vocational 13 expert testified that an individual who is limited to only occasional interaction with 14 supervisors and superficial, non-coordination contact with coworkers is unable to 15 complete the initial training and probation period. This argument fails as the 16 vocational expert also testified that the three identified sedentary unskilled jobs 17 would require very little in the way of training and therefore the three positions 18 were consistent with the RFC’s social-interaction limitations.93 Nonetheless, 19 remand is necessary for the reasons set forth above. 20 21
22 93 AR 52-54. 23 1 F. Remand: Further proceedings are needed. 2 Plaintiff submits a remand for payment of benefits is warranted because 1) 3 she met or equaled Listing 3.02(c)(3) (obstructive sleep apnea and hypoxemia) or 4 Listing 1.02A (unable to ambulate effectively), and 2) she is unable to sustain the 5 exertional and nonexertional requirements of sustained work.94 6 The decision whether to remand a case for additional evidence, or simply to 7 award benefits, is within the Court’s discretion.95 Remand for further proceedings 8 is the usual course, absent clear evidence from the record that a claimant is 9 entitled to benefits.96 For instance, remand for further proceedings is appropriate 10 when “there are outstanding issues that must be resolved before a determination 11 can be made, or if further administrative proceedings would be useful.”97 12 13
14 94 Plaintiff also mentioned the ALJ should have considered Listing 4.02(A)(2) 15 because of her cardiac disorder, but she did not argue an award of benefits was 16 required because she met or equaled Listing 4.02(A)(2). 17 95 See Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (citing Stone v. 18 Heckler, 761 F.2d 530 (9th Cir. 1985)). 19 96 Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017); Benecke v. Barnhart, 379 20 F.3d 587, 595 (9th Cir. 2004) (“[T]he proper course, except in rare circumstances, is 21 to remand to the agency for additional investigation or explanation.”). 22 97 Leon, 880 F.3d at 1047. 23 1 Here, there are various inconsistencies and conflicts in the record that make 2 further administrative proceedings useful. For example, while Plaintiff often 3 appeared with appropriate mood and affect, Plaintiff was also noted about once 4 every four months as being easily distracted and difficult to redirect. In addition, 5 although Plaintiff used a cane to ambulate, there are references to a stable gait. 6 Therefore, the extent to which Plaintiff’s physical conditions impact her walking, 7 standing, sitting, and navigating stairs is unclear. The ALJ, not this Court, must 8 assess whether Plaintiff’s symptoms prevent her from sustaining fulltime work. 9 On remand, a physical consultative examination is needed. The consultative 10 examiner must be given sufficient medical records to allow for a longitudinal 11 perspective, including the imaging of Plaintiff’s knees and back, the right knee 12 surgery records, the physical therapy records after the right knee surgery, and 13 Dr. Jackson’s August 2019 opinion and treatment record.98 14 The ALJ is to reevaluate the sequential process beginning at step two. This 15 includes reconsidering Plaintiff’s symptoms and the medical evidence and opinions. 16 If the ALJ again discounts Plaintiff’s symptoms, the ALJ must articulate clear and 17 convincing reasons for doing so.99 General findings are insufficient because the 18
19 98 See, e.g., AR 783-87, 800-12, 829-34, 871, 994-1004. The consultative examiner is 20 to append the records that the examiner reviewed to the report or identify the 21 records reviewed. 22 99 Ghanim, 763 F.3d at 1163 (quoting Lingenfelter, 504 F.3d at 1036). 23 1 Court cannot affirm discounting Plaintiff’s symptoms for a reason not articulated 2 by the ALJ.100 The ALJ must identify what symptoms are being discounted and 3 what evidence undermines these symptoms.101 When assessing Plaintiff’s mental 4 health symptoms, the ALJ is encouraged to give more weight to the mental health 5 findings made during mental health examinations or treatment sessions, rather 6 than during appointments for solely physical conditions.102 7 V. Conclusion 8 Accordingly, IT IS HEREBY ORDERED: 9 1. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is 10 GRANTED. 11 2. The Commissioner’s Motion for Summary Judgment, ECF No. 15, is 12 DENIED. 13 3. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff 14 REVERSING and REMANDING the matter to the Commissioner of 15 Social Security for further proceedings consistent with this 16 recommendation pursuant to sentence four of 42 U.S.C. § 405(g). 17
18 100 See Garrison, 759 F.3d at 1010. 19 101 Id. (quoting Lester, 81 F.3d at 834, and Thomas, 278 F.3d at 958 (requiring the 20 ALJ to sufficiently explain why he discounted claimant’s symptom claims)). 21 102 See Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020) (comparing psychologist’s 22 mental health findings against findings from other mental health professionals). 23 4. 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 30* day of June 2021. dtd I Ypew EDWARD F. SHEA Senior United States District Judge
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