Edward v. Kijakazi

• Court: District Court, E.D. Washington
• Decided: July 12, 2022
• Docket: 4:21-cv-05054
• Status: Unknown

Opinion

FILED IN THE 2 U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON Jul 12, 2022 3

SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6

7 SYRECEA E.,1 No. 4:21-cv-5054-EFS

8 Plaintiff, ORDER GRANTING PLAINTIFF’S 9 v. SUMMARY-JUDGMENT MOTION, DENYING DEFENDANT’S 10 KILOLO KIJAKAZI, Acting SUMMARY-JUDGMENT MOTION, Commissioner of Social Security, AND REMANDING FOR PAYMENT 11 OF BENEFITS Defendant. 12 13 14 Plaintiff Syrecea E. appeals the Administrative Law Judge’s (ALJ) finding 15 that her disability did not begin on the alleged onset date but rather 21 months 16 later. Because the ALJ failed to acknowledge several medical records that reflected 17 Plaintiff’s handling or fingering abilities were limited to less than frequent 18 handling/fingering, the ALJ erred. Accordingly, Plaintiff’s Motion for Summary 19 Judgment is granted, the Commissioner’s Motion for Summary Judgment is 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 denied, and this matter is remanded for payment of benefits from August 25, 2014, 2 to May 20, 2016. 3 I. Factual and Procedural Summary 4 Plaintiff filed Title 2 and Title 16 applications alleging disability beginning 5 August 25, 2014.2 Her claims were denied initially and on reconsideration.3 In 6 December 2017, an administrative hearing was held by video before ALJ Jesse 7 Shumway, who took testimony from Plaintiff about her conditions and symptoms 8 and from the testifying medical expert Dr. Lynn Jahnke.4 Thereafter, the ALJ 9 issued a partially favorable decision, finding that Plaintiff was disabled as of 10 May 20, 2016.5 The Appeals Council denied review of the ALJ’s decision.6 11 Plaintiff filed a federal lawsuit challenging the partial denial of her claimed 12 disability from August 25, 2014, to May 20, 2016.7 The magistrate judge 13 determined that the ALJ erred when considering the medical opinion evidence and 14 15 16

17 2 AR 39, 233–50, 252–58. 18 3 AR 140–52, 155–76. 19 4 AR 35–69. 20 5 AR 12–34. 21 6 AR 1324–29. 22 7 AR 1330–46; E. D. Wash. Case No. 4:19-cv-5130-JTR. 23 1 remanded the matter back to the Commissioner for reconsideration of the evidence 2 for the denied disability period.8 3 Because the issue on remand was limited to the denied disability period, no 4 new hearing was conducted or testimony taken.9 Instead, the ALJ reconsidered the 5 written record. The ALJ maintained his decision, finding that Plaintiff failed to 6 establish that she was disabled between August 25, 2014, and May 20, 2016. In 7 support of his decision, the ALJ found: 8 • Plaintiff met the insured status requirements through December 31, 9 2019. 10 • Step one: Plaintiff had not engaged in substantial gainful activity 11 since August 25, 2014, the alleged onset date. 12 • Step two: Plaintiff had the following medically determinable severe 13 impairments: osteoarthritis in the bilateral knees, Behcet’s disease, 14 fibromyalgia, extreme obesity (BMI 65+), and mild bilateral carpal 15 tunnel syndrome (status post bilateral surgical releases in March and 16 April 2016). 17 • Step three: As of May 20, 2016, Plaintiff had an impairment or 18 combination of impairments that met or medically equaled the 19 20

21 8 AR 1347–62; E.D. Wash. Case No. 4:19-cv-5130-JTR, ECF No. 16. 22 9 AR 1449–51. 23 1 severity of one of the listed impairments, namely, she equaled listing 2 1.02 (major dysfunction of a joint). 3 • RFC: Before May 20, 2016, Plaintiff had the RFC to perform 4 sedentary work except: 5 She could not kneel, crawl, or climb ladders, ropes, scaffolds, stairs, or ramps; she could only occasionally perform all 6 other postural activities; she could frequently handle and finger; she could not have concentrated exposure to extreme 7 cold or vibration; and she could have no exposure to hazards such as unprotected heights and moving mechanical parts. 8

• Step four: Before May 20, 2016, Plaintiff could perform past relevant 9 work as an order clerk.10 10 In reaching his decision, the ALJ gave: 11 • great weight to the treating opinion of Erin Saunders, PA-C and the 12 reviewing opinions of Lynne Jahnke, M.D., and Leslie Arnold, M.D. 13 • some weight to the reviewing opinion of Barney Greenspan, Ph.D., 14 and the treating opinion of Jason Roberts, ARNP. 15 • little weight to the examining opinion of Lynn Orr, Ph.D., the treating 16 opinions of Amanda McLean MSW, LICSW, Dev Banerjee, M.D., and 17 18 19 20 21

22 10 AR 1235–53. 23 1 Jeffrey Butler, M.D., and the reviewing opinions of Leslie Postovoit, 2 Ph.D., and Guillermo Rubio, M.D.11 3 The ALJ also found Plaintiff’s medically determinable impairments could 4 reasonably be expected to cause some of the alleged symptoms, but her statements 5 concerning the intensity, persistence, and limiting effects of those were not fully 6 supported before May 20, 2016, because they were inconsistent with the objective 7 imaging studies, the recommendation that Plaintiff exercise, her improvement with 8 medication, and her activities of daily living.12 Likewise, the ALJ discounted the 9 lay statements from Plaintiff’s daughter because they were inconsistent with the 10 objective medical evidence and the daughter was not medically trained.13 11 Plaintiff timely appealed the ALJ’s partial denial to this Court. 12 II. Standard of Review 13 A district court’s review of the Commissioner’s final decision is limited. The 14 Commissioner’s decision is set aside “only if it is not supported by substantial 15

16 11 AR 1242–52. The ALJ properly did not assign weight to the referral form filled 17 out by a DSHS referring disability specialist. AR 1959–61. There is no evidence 18 that Dr. Myrna Palasi completed the form after being requested to do so. See, e.g., 19 AR 1959 (requesting that Dr. Palasi opine as to whether she agrees with ARNP 20 Jason Roberts’ sedentary rating or whether Plaintiff is severely limited). 21 12 AR 1246–1248. 22 13 AR 1249. 23 1 evidence or is based on legal error.” 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.” 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.” The Court considers the entire record. 7 Further, the Court may not reverse an ALJ decision due to a harmless error. 8 An error is harmless “where it is inconsequential to the ultimate nondisability 9 determination.” 10 III. Analysis 11 A. Disability onset date

12 The central issue is whether the ALJ’s decision that Plaintiff was able to 13 sustain full-time work between August 25, 2014, and May 20, 2016, is supported by 14 substantial evidence. More pointedly, as the ALJ recognized, the primary question 15 is whether Plaintiff’s ability to handle and finger was more limited than the ALJ’s 16 frequent handling/fingering limitation. This is the primary question because, if 17 Plaintiff was limited to less than frequent handling/fingering, she was unable to 18 work as an order clerk or perform other competitive work given that she was older 19 than 50 as of August 2014 and was limited to sedentary work.14 20

21 14 AR 68; Medical Vocational Rule 201.12 & 201.14; Social Security Ruling (SSR) 22 83-14, Capability to do other work, Effects of nonexertional impairments (stating 23 1 The ALJ based the frequent handling/fingering limitation largely on the 2 testimony of Dr. Jahnke. The ALJ recognized: 3 Dr. Jahnke vacillated between occasional and frequent manipulative limitations, but [I] point out that her ultimate conclusion was 4 frequent handling/fingering, and this is the conclusion that is best supported by the record. For example, when the claimant saw Jeffrey 5 Butler, M.D., on August 28, 2015, she had no swelling in the DIP, PIP, or MCP joints. Her grip strength was intact. There was no swelling 6 and pain with stress extension or flexion of the wrists. In addition, an EMG on January 25, 2016 only showed evidence of mild median 7 neuropathy at the wrists.15 8 A review of the record, however, reveals that the ALJ and Dr. Jahnke did not fully 9 consider the medical records, the medical opinions, Plaintiff’s employment 10 difficulties, and Plaintiff’s reported symptoms, all of which when considered 11 comprehensively support and are consistent with Plaintiff’s claim that her 12 handling/fingering abilities were more impaired than the ALJ’s assigned frequent 13 handling/fingering limitation. 14 1. Medical records 15 During the administrative hearing, Dr. Jahnke and the ALJ focused on 16 Dr. Butler’s August 28, 2015 medical note, which the ALJ summarized as 17 describing Plaintiff’s hand functioning as normal,16 but there was little discussion 18

19 that “bilateral manual dexterity is necessary for the performance of substantially 20 all unskilled sedentary occupations”); SSR 96-9p. 21 15 AR 1248 (internal citations omitted). 22 16 AR 1247. 23 1 as to other treatment records mentioning Plaintiff’s handling/fingering 2 difficulties.17 3 Medical records before August 25, 2014, are relevant to fully consider 4 Plaintiff’s reported hand and wrist symptoms and the progression of such.18 In 5 October and December 2013, she was observed with myofascial tenderness in her 6 proximal lateral forearms.19 In conjunction with her observed overall myofascial 7 tenderness and other symptoms, Plaintiff was diagnosed with fibromyalgia and 8 Behcet’s disease.20 And Plaintiff reported to medical professionals that her ability 9

10 17 AR 47–54 11 18 See Fair v. Bowen, 885 F.2d 597, 600 (9th Cir. 1989) (recognizing that medical 12 evidence predating the period at issue is relevant to considering whether the 13 condition has worsened). 14 19 AR 708–09, 1974–76. 15 20 AR 686–88 (May 2014); AR 680–84 (July 2014). Fibromyalgia is “a rheumatic 16 disease that causes inflammation of the fibrous connective tissue components of 17 muscles, tendons, ligaments, and other tissue.” Revels v. Berryhill, 874 F.3d 648, 18 656 (9th Cir. 2017) (quoting Benecke v. Barnhart, 379 F.3d 587, 589 (9th Cir. 19 2004)); see also SSR 12-2p. Behcet’s disease is a rare disorder that causes blood 20 vessel inflammation throughout the body. See Bechet's disease, Mayo Clinic, 21 https://www.mayoclinic.org/diseases-conditions/behcets-disease/symptoms- 22 causes/syc-20351326 (last accessed July 11, 2022). 23 1 to work was being impacted by pain.21 About the time of the alleged onset date of 2 August 25, 2014, Plaintiff was placed on long-term leave from her employment due 3 to her impairments—this after several unsuccessful workplace accommodation 4 attempts, including part-time work.22 As a result, Plaintiff lost medical insurance 5 and was unable to resume medical care until the spring of 2015.23 6 That spring, she continued to report hand and wrist pain to medical 7 providers. In April 2015, Plaintiff was observed with pain extending and flexing 8 her left wrist, positive Tinel’s sign bilaterally, and paresthesia into the right fourth 9 and fifth digit when flexing her elbow.24 In June 2015, PA-C Saunders observed 10 Plaintiff with positive bilateral Tinel’s and Phalen’s signs, painful abduction and 11 mild impingement of the right shoulder, painful abduction of the left shoulder, 12 decreased thumb opposition strength bilaterally left greater than right, a tremor in 13

14 21 AR 55–57, 60; 705–707 (Oct. 2013: noting pain around right first MCP joint and 15 in PIP joints and myofascial tenderness); AR 1972–75 (Dec. 2013: reporting 16 ongoing generalized severe pain and stiffness including sensitivity and pain in 17 hands); AR 686–87 (May 2014: reporting making more typographical errors); 18 AR 680–83 (July 2014: reporting working at a slower pace and sensitivity/pain in 19 hands). 20 22 AR 282, 300, 647, 1388–92, 1959. 21 23 AR 1394–96. 22 24 AR 749–50. 23 1 the left hand, and a 1+ brachioradialis reflex bilaterally.25 Then, as discussed by 2 the ALJ and Dr. Jahnke, Plaintiff was seen by Dr. Butler in August 2015.26 While 3 Dr. Butler noted there was no swelling or deformities of the hands or wrists and 4 that Plaintiff’s grip strength was intact, he assessed that “the patient has had 5 symptoms of carpal tunnel syndrome. She has been prescribed wrist braces. If she 6 remains symptomatic, we may pursue nerve conduction studies.”27 7 Plaintiff’s wrist and hand conditions persisted. In January 2016, nerve 8 conduction studies and a physical examination revealed bilateral, mild (left worse 9 than right) median neuropathies at the wrist, impaired sensation over the left arm, 10 and diminished bilateral deep tendon reflexes.28 PA-C Saunders stated, “I reviewed 11 recent nerve conduction studies of the bilateral upper extremities. She appears to 12 have carpal tunnel syndrome. She needs to be wearing the neutral wrist splints as 13 prescribed. If symptoms persist after 12 weeks of wearing neutral wrist splints at 14 night, then a surgical consult would be warranted.”29 15 In February 2016, PA-C Saunders noted that, even though Plaintiff had 16 been wearing her wrist braces since the summer, she was tender over the bilateral 17

18 25 AR 742–43. 19 26 AR 790–95. 20 27 AR 794–95. 21 28 AR 845–48. 22 29 AR 983. 23 1 first carpometacarpal with crepitus on range of motion of the left thumb, tender 2 over the right distal interphalangeal joints, decreased grip strength, and tender 3 over her shoulders without full range of motion.30 4 Plaintiff proceeded with carpal tunnel surgery on her left hand in March 5 2016 and her right hand in April 2016.31 Notwithstanding the surgeries, Plaintiff 6 was observed by Dr. Butler on May 20, 2016, with hand weakness and diminished 7 pinprick sensation over thumbs bilaterally.32 Dr. Butler opined that it was possible 8 that Plaintiff had nerve injury in her hands from which she may not fully recover 9 and recommended that she wear bilateral wrist braces at night and during 10 aggravating activity. On that same date, Plaintiff had a follow-up appointment 11 with the orthopedist for her carpal tunnel. The orthopedist observed that, while 12 Plaintiff could make a full fist and had good strength, she showed some signs of 13 ulnar nerve irritation and a positive Tinel’s sign.33 Then in November 2016, PA-C 14 Saunders observed Plaintiff with painful range of wrist movement bilaterally, 15 tenderness over the medial and lateral epicondyles of the elbows, and pain 16 extending and flexing both elbows.34 17

18 30 AR 980–81. 19 31 AR 852, 855. 20 32 AR 968–73. 21 33 AR 1012. 22 34 AR 965. 23 1 The longitudinal medical records indicate that Plaintiff’s hand and wrist 2 pain were not solely related to her carpal tunnel but also her fibromyalgia and 3 Behcet’s disease, conditions that Plaintiff had been diagnosed with before the 4 alleged onset date. The ALJ and Dr. Jahnke erred by failing to consider the 5 longitudinal medical records. This error in turn consequentially impacted the ALJ’s 6 weighing of the treating medical opinions. 7 2. Medical opinions 8 Plaintiff’s treating providers found that her fibromyalgia and Behcet’s 9 disease limited her. For instance, in May and July 2014, Dr. Butler recommended 10 that Plaintiff be limited to a 32-hour work week and/or have other accommodations 11 to allow her to work effectively due to her Behcet’s disease and fibromyalgia.35 In 12 2015, ARNP Roberts opined that Plaintiff was moderately or markedly limited in 13 her abilities to handle and reach due to her impairments; at that time, 14 ARNP Roberts had not yet identified carpal tunnel as an impairment.36 In 2017, 15 PA-C Saunders opined that Plaintiff would be off task 50% of the workday, would 16 need to lie down several times during an 8-hour work shift, and would be absent 4 17 or more days per month, and Dr. Banerjee opined that Plaintiff was limited to 18 occasional use of her right and left upper extremities for handling and reaching.37 19

20 35 AR 735–37. 21 36 AR 1950–58. 22 37 AR 1016–24, 1932–34. 23 1 These treating opinions support and are consistent with Plaintiff’s claim that her 2 handling/fingering abilities were impacted by her fibromyalgia and Behcet’s 3 disease—not merely carpal tunnel—and that she was restricted to occasional 4 handling/fingering, not frequent handling/fingering. 5 As previously mentioned, Dr. Jahnke vacillated as to whether Plaintiff was 6 limited to frequent or occasional handling/fingering. During her testimony, 7 Dr. Jahnke focused on Plaintiff’s carpal tunnel but to failed to appreciate that 8 Plaintiff’s symptoms also resulted from her Behcet’s disease and fibromyalgia, 9 conditions that result in symptoms that are not diagnosable by imaging and that 10 can wax and wane.38 11 By failing to consider that fibromyalgia and Behcet’s disease contributed to 12 Plaintiff’s hand/wrist symptoms, the ALJ—and Dr. Jahnke, on whose testimony 13 the ALJ relied—failed to consider the fluctuating nature of Plaintiff’s hand/wrist 14 symptoms and that the symptoms began by August 25, 2014. In doing so, the ALJ 15 consequentially erred by discounting the medical opinions pertaining to Plaintiff’s 16 handling/fingering abilities. 17 3. Plaintiff’s reported symptoms 18 The ALJ also failed to offer clear and convincing reasons supported by 19 substantial evidence for discounting Plaintiff’s reported handling/fingering 20 limitations. First, reliance on imaging studies is not apt here as Plaintiff’s 21

22 38 AR 47–48. 23 1 handling/fingering limitations resulted not only from carpal tunnel but also from 2 fibromyalgia and Behcet’s disease, which are not readily diagnosable by imaging.39 3 Second, there is no evidence that Plaintiff’s handling/fingering limitations would 4 medically improve with exercise.40 Third, although Plaintiff was off her Behcet’s 5 and fibromyalgia medication for several months after August 2014, her 6 handling/fingering limitations persisted after she resumed medication and had 7 carpal tunnel surgeries. Fourth, although Plaintiff’s employment was high- 8 pressure, she was given work accommodations, including part-time work, and 9 notwithstanding these accommodations she was unable to sustain work.41 Finally, 10 Plaintiff’s ability to wash dishes a few times per week while sitting on a chair, 11 reading the Bible daily, watching live-streamed religious services, and spending 12 time with family, including her daughter who lived and cared for her at home, are 13 not activities of daily living that are inconsistent with Plaintiff’s reported wrist and 14 15 16

17 39 See Revels, 874 F.3d at 657 (recognizing that the diagnosis of fibromyalgia does 18 not rely on imaging); https://www.mayoclinic.org/diseases-conditions/behcets- 19 disease/diagnosis-treatment/drc-20351331 (“No tests can determine whether you 20 have Behcet’s disease.”). 21 40 See 20 C.F.R. §§ 404.1594, 416.994. 22 41 Cf. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001). 23 1 hand limitations.42 As reflected in both Plaintiff’s and her daughter’s function 2 reports in September 2015, Plaintiff required help getting dressed and with 3 bathing and fixing her hair, she had problems gripping due to hand weakness, and 4 she longer did American sign language because of tremors and muscle spasms in 5 her hands.43 6 The ALJ failed to offer clear and convincing reasons supported by 7 substantial evidence for discounting Plaintiff’s reported fingering/handling 8 limitations experienced on the alleged onset date. 9 4. Conclusion 10 A thorough review of the objective medical evidence, the treating medical 11 opinions, and Plaintiff’s limited activities clearly indicate that she was limited to 12 occasional handling and fingering between August 25, 2014—about when she was 13 forced to take leave from work—and May 20, 2016, the date on which Plaintiff 14 equaled listing 1.02. 15 16 17

18 42 See Diedrich v. Berryhill, 874 F.3d 634, 643 (9th Cir. 2017) (recognizing that the 19 fact the claimant “could participate in some daily activities does not contradict the 20 evidence of otherwise severe problems that she encountered in her daily life during 21 the relevant period”). 22 43 AR 319–35, 353–67. 23 1 B. Remand for an award of benefits 2 The decision whether to remand a case for additional evidence or to award 3 benefits is within the Court’s discretion.44 Absent clear evidence from the record 4 that a claimant is entitled to benefits, remand for further proceedings is the usual 5 course.45 6 As the ALJ found, Plaintiff suffered from fibromyalgia, Behcet’s disease, 7 carpal tunnel syndrome, and other severe impairments. The record is clear that 8 when these impairments are considered cumulatively Plaintiff, who was then older 9 than 50, was unable to competitively work because she was restricted to sedentary 10 work and occasional fingering/handling as of August 25, 2014. Further proceedings 11 are not required to develop the record. Moreover, this matter has been before the 12 ALJ on two occasions. Plaintiff is to be awarded benefits from August 25, 2014, to 13 May 20, 2016. 14

15 16 17 18

19 44 See Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). 20 45 Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017); Benecke, 379 F.3d at 595 21 (“[T]he proper course, except in rare circumstances, is to remand to the agency for 22 additional investigation or explanation.”). 23 IV. Conclusion Accordingly, IT IS HEREBY ORDERED: 1. Plaintiff's Motion for Summary Judgment, ECF No. 21, is GRANTED. 2. The Commissioner’s Motion for Summary Judgment, ECF No. 24, is DENIED. 3. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff REVERSING IN PART and REMANDING the matter to the Commissioner of Social Security for immediate calculation and award of benefits for the period between August 25, 2014, to May 20, 2016. 4, The case shall be CLOSED. IT ISSO ORDERED. The Clerk’s Office is directed to file this order and provide copies to all counsel. DATED this 12"Yay of July 2022.

EDWARD F. SHEA Senior United States District Judge

ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 17