1 EASTERN DISTRICT OF WASHINGTON Sep 27, 2023 2 SEAN F. MCAVOY, CLERK 3
4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6
CARISSA F.,1 8 NO: 1:21-CV-03148-LRS Plaintiff, 9
v. ORDER GRANTING PLAINTIFF’S 10 MOTION FOR SUMMARY KILOLO KIJAKAZI, JUDGMENT IN PART AND 11 COMMISSIONER OF SOCIAL DENYING DEFENDANT’S MOTION SECURITY, FOR SUMMARY JUDGMENT 12
Defendant. 13
14 BEFORE THE COURT are the parties’ cross-motions for summary judgment. 15 ECF Nos. 12, 13. This matter was submitted for consideration without oral 16 argument. Plaintiff is represented by attorney D. James Tree. Defendant is 17 represented by Special Assistant United States Attorney Ryan Lu. The Court, 18 having reviewed the administrative record and the parties’ briefing, is fully 19 20 1 The last initial of the claimant is used to protect privacy. 21 1 informed. For the reasons discussed below, Plaintiff’s Motion, ECF No. 12, is 2 granted in part and Defendant’s Motion, ECF No. 13, is denied. 3 JURISDICTION 4 Carissa F. (Plaintiff) filed for disability insurance benefits and for
5 supplemental security income on March 15, 2016, alleging in both applications an 6 onset date of August 1, 2015. Tr. 240-52. Benefits were denied initially, Tr. 140- 7 55, and upon reconsideration, Tr. 158-69. Plaintiff appeared at a hearing before an
8 administrative law judge (ALJ) on February 6, 2018. Tr. 37-61. On June 29, 2018, 9 the ALJ issued an unfavorable decision, Tr. 12-32, and the Appeals Council denied 10 review. Tr. 1-6. Plaintiff appealed to the U.S. District Court for the Eastern District 11 of Washington, and on June 2, 2020, the Honorable Stanley A. Bastian remanded the
12 matter for additional proceedings. Tr. 635-59. 13 On August 18, 2021, Plaintiff appeared at a second hearing, Tr. 554-94, and 14 on August 25, 2021, the ALJ issued another unfavorable decision. Tr. 528-53. The
15 matter is now before this Court pursuant to 42 U.S.C. § 405(g). 16 BACKGROUND 17 The facts of the case are set forth in the administrative hearing and transcripts, 18 the ALJ’s decision, and the briefs of Plaintiff and the Commissioner, and are
19 therefore only summarized here. 20 Plaintiff was 50 years old at the time of the first hearing. Tr. 48. She has a 21 GED/high school education. Tr. 48, 560. She has training in phlebotomy. Tr. 48. 1 She has work experience as a telemarketer, teacher’s aide, and a phlebotomist. Tr. 2 570-71. Plaintiff testified that it is difficult to walk due to pain in her lower back. 3 Tr. 42. She had severe migraines before a spinal stimulator was placed. Tr. 43. She 4 has problems with her hands going numb and tingling. Tr. 43. She cannot hold
5 things, sometimes even a coffee cup will fall out of her hands. Tr. 43. She testified 6 that she cannot lift, and she cannot walk distances due to her lower back and hip 7 pain. Tr. 44. Her lumbar pain is the worst. Tr. 50. She needs to lie down for a few
8 hours during the day, often in a recliner on top of a heating pad. Tr. 50. On a bad 9 day, she can hardly walk and will lie down most of the day. Tr. 51. 10 At the time of the second hearing, Plaintiff was 54 years old. Tr. 560. She 11 testified that she could not work as a phlebotomist due to her hands shaking and
12 feeling numb. Tr. 571-72. She could not type and could not lift due to pain in her 13 hands, arms, and neck. Tr. 572. She was calling in sick too often. Tr. 572. She 14 could not do her past work as a paraeducator because she has too many days when
15 she cannot get out of bed and she takes opioids. Tr. 572. She cannot stand and walk 16 as demanded by the job, sometimes she needs to sit. Tr. 573. 17 STANDARD OF REVIEW 18 A district court’s review of a final decision of the Commissioner of Social
19 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 20 limited; the Commissioner’s decision will be disturbed “only if it is not supported by 21 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 1 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a reasonable 2 mind might accept as adequate to support a conclusion.” Id. at 1159 (quotation and 3 citation omitted). Stated differently, substantial evidence equates to “more than a 4 mere scintilla[,] but less than a preponderance.” Id. (quotation and citation omitted).
5 In determining whether the standard has been satisfied, a reviewing court must 6 consider the entire record as a whole rather than searching for supporting evidence in 7 isolation. Id.
8 In reviewing a denial of benefits, a district court may not substitute its 9 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 1156 10 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 11 rational interpretation, [the court] must uphold the ALJ’s findings if they are
12 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 13 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an ALJ’s 14 decision on account of an error that is harmless.” Id. An error is harmless “where it
15 is inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 1115 16 (quotation and citation omitted). The party appealing the ALJ’s decision generally 17 bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 18 396, 409-10 (2009).
19 FIVE-STEP EVALUATION PROCESS 20 A claimant must satisfy two conditions to be considered “disabled” within the 21 meaning of the Social Security Act. First, the claimant must be “unable to engage in 1 any substantial gainful activity by reason of any medically determinable physical or 2 mental impairment which can be expected to result in death or which has lasted or 3 can be expected to last for a continuous period of not less than twelve months.” 42 4 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s impairment must
5 be “of such severity that he is not only unable to do [his or her] previous work[,] but 6 cannot, considering [his or her] age, education, and work experience, engage in any 7 other kind of substantial gainful work which exists in the national economy.” 42
8 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 9 The Commissioner has established a five-step sequential analysis to determine 10 whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 404.1520(a)(4)(i)- 11 (v), 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s
12 work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is 13 engaged in “substantial gainful activity,” the Commissioner must find that the 14 claimant is not disabled. 20 C.F.R. §§ 404.1520(b), 416.920(b).
15 If the claimant is not engaged in substantial gainful activity, the analysis 16 proceeds to step two. At this step, the Commissioner considers the severity of the 17 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 18 claimant suffers from “any impairment or combination of impairments which
19 significantly limits [his or her] physical or mental ability to do basic work 20 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 21 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 1 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 2 §§ 404.1520(c), 416.920(c). 3 At step three, the Commissioner compares the claimant’s impairment to 4 severe impairments recognized by the Commissioner to be so severe as to preclude a
5 person from engaging in substantial gainful activity. 20 C.F.R. §§ 6 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more severe 7 than one of the enumerated impairments, the Commissioner must find the claimant
8 disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 9 If the severity of the claimant’s impairment does not meet or exceed the 10 severity of the enumerated impairments, the Commissioner must pause to assess the 11 claimant’s “residual functional capacity.” Residual functional capacity (RFC),
12 defined generally as the claimant’s ability to perform physical and mental work 13 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 14 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the
15 analysis. 16 At step four, the Commissioner considers whether, in view of the claimant’s 17 RFC, the claimant is capable of performing work that he or she has performed in the 18 past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the
19 claimant is capable of performing past relevant work, the Commissioner must find 20 that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the 21 claimant is incapable of performing such work, the analysis proceeds to step five. 1 At step five, the Commissioner should conclude whether, in view of the 2 claimant’s RFC, the claimant is capable of performing other work in the national 3 economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this 4 determination, the Commissioner must also consider vocational factors such as the
5 claimant’s age, education, and past work experience. 20 C.F.R. §§ 6 404.1520(a)(4)(v), 416.920(a)(4)(v). If the claimant is capable of adjusting to other 7 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§
8 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 9 work, analysis concludes with a finding that the claimant is disabled and is therefore 10 entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 11 The claimant bears the burden of proof at steps one through four above.
12 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 13 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 14 capable of performing other work; and (2) such work “exists in significant numbers
15 in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v. 16 Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 17 ALJ’S FINDINGS 18 At step one, the ALJ found Plaintiff had not engaged in substantial gainful
19 activity since August 1, 2015, the alleged onset date. Tr. 534. At step two, the ALJ 20 found that Plaintiff has the following severe impairments: degenerative disc and 21 1 facet disease, status post C5-6 discectomy and fusion; status post bilateral carpal 2 tunnel release and right ulnar nerve transposition; and fibromyalgia. Tr. 534. 3 At step three, the ALJ found that Plaintiff does not have an impairment or 4 combination of impairments that meets or medically equals the severity of one of the
5 listed impairments. Tr. 537. The ALJ then found that Plaintiff has the residual 6 functional capacity to perform light work with the following additional limitations: 7 With customary breaks, she can stand and/or walk for four hours in an eight-hour workday and sit for six hours in an eight-hour workday. 8 She can lift and/or carry a maximum of 20 pounds on an occasional basis and ten pounds on a frequent basis. She can never climb 9 ladders, ropes, or scaffolds. She can occasionally climb ramps and stairs and can occasionally balance, stoop, kneel, crouch, and crawl. 10 With the bilateral upper extremities, she can reach, handle, and feel frequently and can finger occasionally. She must avoid concentrated 11 exposure to hazardous machinery and unprotected heights.
12 Tr. 538. 13 At step four, the ALJ found that Plaintiff is unable to perform any past 14 relevant work for purposes of her Title XVI claim, but she is capable of performing 15 past relevant work as a teacher aide I for purposes of her Title II claim. Tr. 546. At 16 step five, after considering and Plaintiff’s age, education, work experience, and 17 residual functional capacity, the ALJ found that there are jobs that exist in 18 significant numbers in the national economy that Plaintiff can perform such as 19 router, school bus monitor, and storage facility rental clerk. Tr. 547. Thus, the ALJ 20 determined that Plaintiff has not been under a disability, as defined in the Social 21 1 Security Act at any time from October 31, 2009, through the date of the decision. 2 Tr. 548. 3 ISSUES 4 Plaintiff seeks judicial review of the Commissioner’s final decision denying
5 disability income benefits under Title II and supplemental security income under 6 Title XVI of the Social Security Act. ECF No. 12. Plaintiff raises the following 7 issues for review:
8 1. Whether the ALJ properly assessed Plaintiff’s migraines; 9 2. Whether the ALJ properly considered Plaintiff’s testimony; and 10 3. Whether the ALJ properly considered the medical opinions. 11 ECF No. 12 at 2.
12 DISCUSSION 13 A. Step Two - Migraines 14 Plaintiff contends the ALJ failed to properly consider her migraines by finding
15 them non-severe. ECF No. 12 at 19. At step two of the sequential process, the ALJ 16 must determine whether there is a medically determinable impairment established by 17 objective medical evidence from an acceptable medical source. 20 C.F.R. §§ 18 404.1521, 416.921. A statement of symptoms, a diagnosis, or a medical opinion
19 does not establish the existence of an impairment. Id. After a medically 20 determinable impairment is established, the ALJ must determine whether the 21 impairment is “severe;” i.e., one that significantly limits his or her physical or 1 mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). 2 However, the fact that a medically determinable condition exists does not 3 automatically mean the symptoms are “severe” or “disabling” as defined by the 4 Social Security regulations. See e.g., Edlund, 253 F.3d at 1159-60; Fair v. Bowen,
5 885 F.2d 597, 603 (9th Cir. 1989); Key v. Heckler, 754 F.2d 1545, 1549-50 (9th Cir. 6 1985). 7 The ALJ discussed Plaintiff’s allegations of disabling limitations from chronic
8 migraine headaches. Tr. 534. In an April 2016 headache questionnaire, Plaintiff 9 alleged she had to be in a quiet and dark room during a migraine and could not eat, 10 talk, or move, or she would vomit. Tr. 282. Her most recent migraine had been in 11 February 2016, and she reported migraines occurred every couple of months. Tr.
12 282. Symptoms would last an hour to two days with aftereffects that lasted one to 13 two days. Tr. 282. The ALJ observed that Plaintiff’s own report was that migraines 14 occurred only “every couple months.” Tr. 534. Medical records in June 2015, July
15 2016, and November 2020 indicate that she reported headaches secondary to 16 cervical pain or injections. Tr. 407, 428, 797. In January 2018, she reported her 17 headaches were much improved since having a spinal stimulator implanted in 18 October 2016. Tr. 509. She denied headaches in August 2016, June 2018, and
19 March 2019. Tr. 453, 842, 868. 20 Plaintiff acknowledged her headaches improved after the spinal stimulator 21 was implanted in October 2016, but argues they were disabling from her alleged 1 onset date of August 1, 2015, until the implant in October 2016. ECF No. 12 at 20. 2 Plaintiff cites her own testimony (Tr. 49-50), her headache questionnaire (Tr. 282), 3 her reports of headaches to providers in May 2015 and July 2016 (Tr. 366, 428) and 4 her report that she tried acupuncture and chiropractic treatment to relieve them (Tr.
5 282). 6 The ALJ reasonably found there is insufficient evidence in the record to 7 establish headaches as a severe impairment between August 2015 and October 2016.
8 Tr. 535. “[W]hile there may not be a laboratory or blood test to confirm a migraine 9 disorder, and it may be that radiologic studies do not always reveal an objectively- 10 defined source of migraine pain, it is possible to present objective-like evidence to 11 establish the severity of the claimed impairment.” Mehrnoosh v. Astrue, No. CV-10-
12 52-HZ, 2011 WL 2173809, at *7 (D. Or. June 2, 2011) (citing Ortega v. Chater, 933 13 F. Supp. 1071, 1075 (S.D. Fla. 1996)). For example, a treating doctor’s observations 14 of any physical manifestations of pain, trips to the emergency room or hospital
15 admissions for disabling migraine pain, or treatment notes reflecting medical signs 16 and symptoms such as nausea, vomiting, dizzy spells, blackouts, or photophobia can 17 establish the severity of a disabling migraine condition. See Mehrnoosh, 2011 WL 18 2173809, at *7. Here, there are few physician notes indicating complaints of
19 migraines and almost no description of symptoms or impact on function. The ALJ 20 reasonably concluded Plaintiff's migraines were not a severe impairment. 21 B. Symptom Testimony 1 An ALJ engages in a two-step analysis to determine whether a claimant’s 2 testimony regarding subjective pain or symptoms is credible. “First, the ALJ must 3 determine whether there is objective medical evidence of an underlying impairment 4 which could reasonably be expected to produce the pain or other symptoms alleged.”
5 Molina, 674 F.3d at 1112 (internal quotation marks omitted). “The claimant is not 6 required to show that her impairment could reasonably be expected to cause the 7 severity of the symptom she has alleged; she need only show that it could reasonably
8 have caused some degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 9 (9th Cir. 2009) (internal quotation marks omitted). 10 Second, “[i]f the claimant meets the first test and there is no evidence of 11 malingering, the ALJ can only reject the claimant’s testimony about the severity of
12 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 13 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 14 citations and quotations omitted). “General findings are insufficient; rather, the ALJ
15 must identify what testimony is not credible and what evidence undermines the 16 claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 17 1995)); see also Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ 18 must make a credibility determination with findings sufficiently specific to permit
19 the court to conclude that the ALJ did not arbitrarily discredit claimant’s 20 testimony.”). “The clear and convincing [evidence] standard is the most demanding 21 required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 1 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2 2002)). 3 In assessing a claimant’s symptom complaints, the ALJ may consider, inter 4 alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the
5 claimant’s testimony or between her testimony and her conduct; (3) the claimant’s 6 daily living activities; (4) the claimant’s work record; and (5) testimony from 7 physicians or third parties concerning the nature, severity, and effect of the
8 claimant’s condition. Thomas, 278 F.3d at 958-59. 9 First, the ALJ found that Plaintiff’s pain “has been under mostly stable 10 conservative management with chronic opioid therapy for years,” even before the 11 period of adjudication. Tr. 541 (citing Tr. 487, 494, 515). The effectiveness of
12 treatment is a relevant factor in determining the severity of a claimant’s symptoms. 13 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (2011). Claims about disabling pain are 14 undermined by favorable response to conservative treatment. Tommasetti v. Astrue,
15 533 F.3d 1035, 1039-1040 (9th Cir. 2008); see also Parra v. Astrue, 481 F.3d 742, 16 750–51 (9th Cir. 2007) (finding “evidence of ‘conservative treatment’ is sufficient to 17 discount a claimant’s testimony regarding severity of an impairment”); see also 18 Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (rejecting subjective pain
19 complaints where petitioner’s “claim that she experienced pain approaching the 20 highest level imaginable was inconsistent with the ‘minimal, conservative treatment’ 21 that she received”). The ALJ Also found that Plaintiff underwent epidural steroid 1 injections, facet blocks, and targeted spinal injections. Tr. 541 (citing Tr. 426-57). 2 She had a spinal cord stimulator implanted but remained on chronic opioid therapy. 3 Tr. 437, 541. In October 2017, Plaintiff was very pleased with the result of the 4 stimulator which provided 90-percent relief of cervical pain. Tr. 445. The ALJ
5 found that since then, the record reflects generally unchanged chronic opioid therapy 6 with stable symptoms. Tr. 541 (citing e.g., 795, 815, 839, 859). 7 Notwithstanding Plaintiff’s stability on opioids and improved symptoms from
8 the spinal cord stimulator, this is not a case involving conservative treatment. Pain 9 treatment with opioid analgesics generally is not considered conservative. 10 O’Connor v. Berryhill, 355 F. Supp. 3d 972, 985 (W.D. Wash. 2019); see Kager v. 11 Astrue, 256 F. App’x 919, 923 (9th Cir. 2007) (rejecting adverse finding regarding
12 symptom claims premised on the absence of significant pain therapy where the 13 claimant took prescription pain medications including narcotic analgesics); see also 14 Hanes v. Colvin, 651 F. App’x 703, 706 (9th Cir. 2016) (determining narcotic
15 painkillers along with spinal injections and radiofrequency ablation not 16 conservative). Similarly, surgeries, injections and prescriptions for opioid pain 17 medication are not generally characterized as “conservative” in evaluating a 18 claimant’s symptom testimony. See Carlos M. A. v. Kijakazi, No. ED CV 22-0038-
19 E, 2022 WL 16894847, at *3 (C.D. Cal. July 11, 2022); Aguilar v. Colvin, 2014 WL 20 3557308, at *8 (C.D. Cal. July 18, 2014) (“It would be difficult to fault Plaintiff for 21 overly conservative treatment when he has been prescribed strong narcotic pain 1 medications”); Sanchez v. Colvin, CV-12-4061-SP, 2013 WL 1319667, at *4 (C.D. 2 Cal. Mar. 29, 2013) (“surgery is not conservative treatment”); Christie v. Astrue, 3 CV-10-3448-PJW, 2011 WL 4368189, at *4 (C.D. Cal. Sept. 16, 2011) (refusing to 4 characterize treatment that included narcotic pain medication and epidural injections
5 as “conservative”). Furthermore, the ALJ went on to note that “more intensive 6 intervention” began in July 2016, including steroid injections, facet blocks, and 7 targeted injections, which by the ALJ’s own description implies more than
8 conservative treatment. Tr. 541. The record does not support the conclusion that 9 Plaintiff’s treatment was “conservative.” This is not a clear and convincing reason 10 supported by substantial evidence. 11 Second, the ALJ found that Plaintiff did not engage in other recommended
12 treatments. Tr. 541. Plaintiff’s providers suggested other treatments such as 13 physical therapy or behavioral-health treatment improve functioning and pain 14 tolerance so she can wean off chronic opioids. Tr. 541 (citing e.g., Tr. 427, 498.).
15 The ALJ observed that Plaintiff repeatedly declined functional restoration or 16 physical therapy, preferring to continue with opioid treatment or giving other 17 reasons for not starting, such as travel. Tr. 485, 500; 833-34, 837, 839. Symptom 18 claims may be undermined by unexplained, or inadequately explained, failure to
19 seek treatment or follow a prescribed course of treatment. While there are any 20 number of good reasons for not doing so, see e.g., 20 C.F.R. § 404.1530(c) (1988); 21 Gallant v. Heckler, 753 F.2d 1450, 1455 (9th Cir. 1984), a claimant’s failure to assert 1 one, or a finding by the ALJ that the proffered reason is not believable, can cast 2 doubt on the sincerity of the claimant’s pain testimony. Fair, 885 F.2d at 603. The 3 ALJ observed that although Plaintiff testified she could not find a physical therapy 4 provider who took her insurance, the record reflects “little effort to follow up.” Tr.
5 541. It is not clear exactly what this means or what records support the ALJ’s 6 conclusion. The ALJ also found attended only two behavioral health sessions in 7 January 2018 and May 2019, suggesting, presumably, that she did not follow up or
8 pursue that treatment. Tr. 541, 511, 833. However, as Plaintiff observes, her 9 provider indicated that following up would be difficult since she lived out of town 10 and the provider was going to be moving to a different clinic. Tr. 834. Plaintiff 11 offers several other reasons for not pursuing physical therapy or functional
12 improvement training such as previous physical therapy made her pain worse, Tr. 13 483, interruptions due to removal of the cervical stimulator, Tr. 574, the pandemic, 14 Tr. 815, or providers talked about PT in the future, Tr. 507, 830. ECF No. 12 at 17.
15 Some of these excuses for not pursuing physical therapy or behavioral health 16 treatments were not raised before the ALJ and are not particularly compelling. 17 Nonetheless, the ALJ’s findings do not constitute a clear and convincing reason 18 supported by substantial evidence.
19 Third, the ALJ found Plaintiff’s activities and abilities are inconsistent with 20 her allegations. Tr. 542. It is reasonable for an ALJ to consider a claimant’s 21 activities which undermine claims of totally disabling pain in evaluating symptom 1 claims. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). In January and 2 March 2018, Plaintiff stated she had been caring for her mother for two years, Tr. 3 512, 839, and in November 2018, she reported she would be taking her mother to 4 Arizona for two months. Tr. 852. The ALJ acknowledged that Plaintiff testified
5 that she was not performing caregiving tasks, only keeping her mother company, but 6 the ALJ found that Plaintiff’s activities with her mother indicate greater abilities 7 than alleged regarding standing, walking, sitting, and use of the hands involved in
8 travel, shopping, and cooking. Tr. 542. 9 The ALJ also noted that Plaintiff stated she did not want to start physical 10 therapy in May 2019 because she planned to go to the coast with her boyfriend for a 11 month in the summer. Tr. 542, 833. Plaintiff told Dr. Drenguis that she could drive
12 for two hours at a time before getting out to stretch; that she could lift 10 pounds; do 13 her own laundry; that she enjoyed coloring books; and was able to get out of the 14 house daily. Tr. 400. In June 2016, Plaintiff reported exercising 20 minutes a day,
15 being able to garden for up to an hour, and enjoying coloring books, but she 16 qualified her exercise by indicating it was “not intense enough to be moderate 17 activity,” and said she needed frequent breaks for gardening. Tr. 487. She enjoyed 18 quilting, gardening, and walking her dog. Tr. 487.
19 The ALJ found these activities were inconsistent with Plaintiff’s function 20 reports in which she indicated difficulty using her hands for any length of time; that 21 she could not stand for long or tolerate bending; and that she might not be able to get 1 up in the morning or do more than sit in a recliner with a hearting pad. Tr. 542; Tr. 2 300-07. The ALJ found Plaintiff can use her hands for two hours at a time to 3 operate the steering wheel and controls of a car; and can use her hands for 4 recreational coloring, which requires fine manipulation; and Plaintiff can not only
5 get up but get out of the house. Tr. 542. The ALJ concluded these activities are 6 consistent with light work with the other limitations included in the RFC. Tr. 542. 7 Plaintiff argues that the ALJ did not show that her testimony was contradicted
8 or that she could perform tasks beyond those limitations assessed by Dr. Drenguis 9 and Dr. Deramo. ECF No. 12 at 18. It is noted that the ALJ credited all of the 10 limitations assessed by Dr. Drenguis, except for the hand-related limitations, which 11 the ALJ found were somewhat less limiting than Dr. Drenguis opined. Tr. 543-44;
12 see infra. To the extent the ALJ’s findings were consistent with Dr. Drenguis’ 13 opinion, those findings are supported by substantial evidence. 14 However, the difference between the ALJ’s finding and Dr. Drenguis’ opinion
15 regarding manipulative limitations is the frequency of Plaintiff’s ability to reach, 16 handle, and feel. Tr. 403, 537-38, 543. The ALJ did not explain how the daily 17 activities performed by Plaintiff are inconsistent with the occasional reaching, 18 handling, and feeling limitation assessed by Dr. Drenguis, or how the record
19 demonstrates that Plaintiff is actually performing those activities in a frequent 20 manner. Plaintiff also correctly points out that the ALJ’s statement that Plaintiff 21 engages in “extended periods” of coloring is not supported by the record and is 1 speculative. ECF No. 12 at 18; Tr. 542. Furthermore, the ALJ did not address 2 waxing and waning of symptoms as set forth in which could potentially account for 3 some of the perceived inconsistencies. See Social Security Ruling (SSR) 12-2p, 4 2012 WL 3104869 (effective July 25, 2012). This is a not a clear and convincing
5 reason supported by substantial evidence. 6 Finally, the ALJ found the objective evidence and medical record is 7 inconsistent with the Plaintiff’s alleged limitations. Tr. 539-41. An ALJ may not
8 discredit a claimant’s pain testimony and deny benefits solely because the degree of 9 pain alleged is not supported by objective medical evidence. Rollins, 261 F.3d at 10 857; Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991); Fair, 885 F.2d at 11 601. However, the medical evidence is a relevant factor in determining the severity
12 of a claimant’s pain and its disabling effects. Rollins, 261 F.3d at 857. Minimal 13 objective evidence is a factor which may be relied upon in discrediting a claimant’s 14 testimony, although it may not be the only factor. See Burch v. Barnhart, 400 F.3d
15 676, 680 (9th Cir. 2005). 16 The ALJ discussed the evidence in detail regarding disc and facet 17 degeneration, carpal tunnel syndrome and ulnar neuropathy, and pain symptoms. Tr. 18 539-42. The ALJ acknowledged objective findings of minimal to moderate
19 multilevel disc degeneration and facet degeneration and some objective physical 20 exam findings of limitation of cervical and lumbar movement, as well as tenderness, 21 but otherwise found the exam findings to be unremarkable or normal. Tr. 539. The 1 ALJ concluded findings in the record are not consistent with chronic marked 2 physical limitations or with Plaintiff’s allegations of being immobilized with pain 3 half the week, being unable to stand for more than a few minutes, being so limited 4 that she cannot lift a basket of laundry or being unable to move her arms back and
5 forth due to extreme pain. Tr. 540. However, because the lack of objective evidence 6 cannot be the only valid reason supporting a finding that the Plaintiff’s symptom 7 claims are not fully persuasive, and due to errors in considering Plaintiff’s symptom
8 statement discussed supra, the ALJ’s conclusions are not legally sufficient. 9 Additionally, while the ALJ did consider Plaintiff’s pain from fibromyalgia 10 throughout the decision, Tr. 542-44, the ALJ did not address the impact of waxing 11 and waning, or good days and bad days, on the objective findings. See SSR 12-2p.
12 On remand, the ALJ should address Plaintiff’s allegations of “good days and bad 13 days” accordingly. 14 Plaintiff also argued the ALJ should have considered Plaintiff’s work history
15 as a factor that “enhances” her credibility. ECF No. 12 at 19. The ALJ may 16 consider claimant’s work record in evaluating symptom claims. Thomas, 278 F.3d 17 at 958-59. If the ALJ finds Plaintiff’s work history significant in assessing 18 Plaintiff’s symptom claims, the ALJ may choose to address it on remand.
19 C. Medical Opinions 20 There are three types of physicians: “(1) those who treat the claimant (treating 21 physicians); (2) those who examine but do not treat the claimant (examining 1 physicians); and (3) those who neither examine nor treat the claimant but who 2 review the claimant’s file (nonexamining or reviewing physicians).” Holohan v. 3 Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (brackets omitted). “Generally, 4 a treating physician’s opinion carries more weight than an examining physician’s,
5 and an examining physician’s opinion carries more weight than a reviewing 6 physician’s.” Id. “In addition, the regulations give more weight to opinions that are 7 explained than to those that are not, and to the opinions of specialists concerning
8 matters relating to their specialty over that of nonspecialists.” Id. (citations 9 omitted).2 10 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 11 reject it only by offering “clear and convincing reasons that are supported by
12 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 13 “However, the ALJ need not accept the opinion of any physician, including a 14 treating physician, if that opinion is brief, conclusory and inadequately supported by
15 clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 16 (internal quotation marks and brackets omitted). “If a treating or examining doctor’s 17 2 For claims filed on or after March 27, 2017, the regulations changed the framework 18 for evaluation of medical opinion evidence. Revisions to Rules Regarding the 19 Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 20 2017); 20 C.F.R. § 404.1520c. 21 1 opinion is contradicted by another doctor’s opinion, an ALJ may only reject it by 2 providing specific and legitimate reasons that are supported by substantial 3 evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 830-31). 4 1. William Drenguis, M.D.
5 Dr. Drenguis, an examining physician, completed a physical evaluation in 6 June 2016. Tr. -03. He diagnosed fibromyalgia, cervical pain with a history of 7 cervical fusion, low back pain, mild right ulnar neuropathy, mild left carpal tunnel
8 syndrome, and poor balance with a history of Meniere’s disease. Tr. 402. He 9 assessed functional limitations: maximum standing/walking capacity of at least four 10 hours with normal breaks; maximum sitting capacity of at least six hours with 11 normal breaks; maximum lifting/carrying capacity of 20 pounds occasionally and 10
12 pounds frequently; occasionally climb, balance, stoop, kneel, crouch, and crawl; 13 occasionally reach, handle, finger, and feel; limited working at heights and limited 14 by poor balance. Tr. 403.
15 The ALJ gave significant weight to Dr. Drenguis’ assessment of Plaintiff’s 16 lifting and carrying capacity, ability to sit for about six of eight hours, ability to 17 stand/walk for four hours, limitation on postural activities to occasional, and 18 restriction on working at heights. Tr. 543-44. The RFC finding is consistent with
19 these limitations and is supported by substantial evidence. Tr. 537-38. 20 The ALJ gave some weight to Dr. Drenguis’ assessment of manipulative 21 limitations. Tr. 544. Dr. Drenguis opined that Plaintiff could occasionally reach, 1 handle, finger, and feel; the ALJ found that Plaintiff could frequently reach, hand, 2 and feel. Tr. 537-38. The ALJ also found Plaintiff could occasionally finger, 3 consistent with Dr. Drenguis’ assessment of the same. Tr. 544. 4 The ALJ found there are some inconsistencies in Dr. Drenguis’s opinion
5 regarding manipulative limitations. Tr. 544. A medical opinion may be rejected by 6 the ALJ if it contains inconsistencies. Bray, 554 F.3d at 1228. The ALJ noted that 7 Dr. Drenguis attributed the sensory findings and indicated manipulative limitations
8 based on mild right ulnar neuropathy and mild left carpal tunnel syndrome, but he 9 made negative findings as to Tinel’s, Phalen’s, and reverse Phalen’s testing. Tr. 10 402, 544. While Dr. Drenguis found some reduced sensation in the hands 11 bilaterally, the reduced sensation was noted to be reduced specifically in just the
12 right-hand ulnar nerve distribution and the left-hand median nerve distribution. Tr. 13 402, 544. The ALJ observed that Dr. Drenguis did not explain how this would 14 reduce Plaintiff’s overall feeling capacity to occasional. Tr. 544. Dr. Drenguis’
15 exam findings also indicated that Plaintiff could pick up a coin, manipulate a button, 16 tie a bow, turn a doorknob with either hand, and touch her thumb to each finger. Tr. 17 402, 544. The ALJ also found that the limitation assessed by Dr. Drenguis of only 18 occasional reaching and handling is unsupported by motor testing during the exam,
19 which showed near-normal bilateral grip strength of 4+/5, 5/5 strength in the 20 shoulders and elbows, the ability to make a fist, and normal range of motion through 21 the shoulders, elbows, wrists, and hands. Tr. 401-402, 544. 1 The previous District Court remand order found the ALJ “appear[ed] to 2 overlook the reemergence of Plaintiff’s symptoms in her upper extremities as a 3 whole,” and that Dr. Drenguis’ assessment was based on an overall picture of 4 Plaintiff’s conditions, including her cervical condition and fibromyalgia. Tr. 654-55.
5 Here, the ALJ again overlooked the overall picture of Dr. Drenguis’ assessment, 6 which takes into account pain from fibromyalgia and the interaction of all 7 impairments. The ALJ essentially restated Dr. Drenguis’ findings yet came to a
8 different conclusion than Dr. Drenguis regarding Plaintiff’s manipulative limitations. 9 Tr. 544. Thus, the ALJ improperly substituted her opinion for Dr. Drenguis’ 10 professional interpretation of his findings. It is improper for an ALJ to act as her 11 own medical expert, substituting her opinion for the opinion of a medical doctor.
12 Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir.1975); see also Nguyen v. Chater, 13 172 F.3d 31, 35 (1st Cir.1999) (As a lay person, an ALJ is “not at liberty to ignore 14 medical evidence or substitute his own views for uncontroverted medical opinion”;
15 she is “simply not qualified to interpret raw medical data in functional terms.”); 16 Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir.1998) (“the ALJ cannot arbitrarily 17 substitute [her] own judgment for competent medical opinion”). The ALJ did 18 consider findings of other providers in the record, noting some found grossly intact
19 sensation to light touch and pinprick, Tr. 410, 431, 544, and others found normal 20 strength and motor function and intact and symmetrical reflexes, Tr. 410, 431, 802. 21 However, none of those records indicate that the findings related specifically to an 1 assessment of the hands or fingers and this evidence alone does not constitute 2 substantial evidence contradicting Dr. Drenguis’ findings. 3 The other purported inconsistencies regarding Dr. Drenguis’ opinion are 4 likewise insufficient. The ALJ observed that although Dr. Drenguis explained the
5 reaching limitation in terms of Plaintiff’s fibromyalgia symptoms, Plaintiff has had 6 little treatment or workup for that impairment during the relevant period. Tr. 544. 7 However, as noted by Plaintiff, it is unclear exactly what additional treatment or
8 workup for fibromyalgia would be indicated. ECF No. 12 at 11. The ALJ also 9 observed that in May 2021, Plaintiff complained of right shoulder pain ongoing for 10 one year and exam findings showed limited range of motion and pain, but there was 11 little or no evidence of abnormal findings of significant duration. Tr. 544, 790.
12 However, the provider’s impression was that Plaintiff’s chronic pain syndrome was 13 “worse due to shoulder,” Tr. 790, which should have been considered by the ALJ in 14 evaluating the overall effect of fibromyalgia. Lastly, the ALJ found a limitation to
15 only occasional reaching and gross handling is internally inconsistent with a 16 capacity to lift and carry objects weighing up to 10 pounds on a frequent basis. Tr. 17 544. The ALJ compared different functions, and without an evaluation of the 18 technical aspects of each function and authority establishing an inconsistency, this is
19 not a legitimate reason to reject the manipulative limitations assessed by Dr. 20 Drenguis. 21 1 Based on the foregoing, on remand, the ALJ should reconsider the 2 manipulative limitations assessed by Dr. Drenguis in the context of Plaintiff’s other 3 impairments, including cervical pain and fibromyalgia, and the combined effect of 4 all impairments.
5 2. Mark A. Deramo, M.D. 6 A November 2020 treatment note by Dr. Deramo indicates he had a 7 videoconference consultation with Plaintiff regarding questions raised by disability
8 paperwork. Tr. 797. He listed diagnoses of cervical disc disease/spondylosis, 9 lumbar facet arthropathy/chronic low back pain, and fibromyalgia. Tr. 797. He 10 listed functional limitations including: hard to hold things with right hand, cannot 11 vacuum, cannot walk very far (several hundred feet but not a quarter mile) due to
12 pain; can stand 15-20 minutes, then needs to sit; interferes with sleep; and can lift 13 five pounds for up to 20 seconds. Tr. 797. 14 The ALJ gave no weight to Dr. Deramo’s opinion. Tr. 544, 546. First, the
15 ALJ found the opinion was unsupported by treatment notes. Tr. 546. A medical 16 opinion may be rejected if it is unsupported by medical findings. Bray, 554 F.3d at 17 1228; Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); 18 Thomas, 278 F.3d at 957; Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir.
19 2001); Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir.1992). The ALJ noted that 20 since the November 2020 visit was by videoconference, there were no objective 21 exam findings to support the functional limitations. Tr. 546. The ALJ considered 1 notes from previous in-person visits with Dr. Deramo but found they do not provide 2 objective support for the limitations as they reflect few findings beyond vital signs. 3 Tr. 546, 804-08 (September 2020), 816-19 (March 2020). This is a reasonable 4 interpretation of the evidence, and this is a specific, legitimate reason for giving little
5 weight to the opinion. 6 Second, the ALJ found the statement “is not an objective functional opinion” 7 but is a recounting of Plaintiff’s subjective report of limitations. Tr. 546. A
8 physician’s opinion may be rejected if it is based on a claimant’s subjective 9 complaints which were properly discounted. Tonapetyan, 242 F.3d at 1149; Morgan 10 v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999); Fair, 885 F.2d at 11 604. However, the ALJ must provide the basis for the conclusion that an opinion
12 was more heavily based on a claimant’s self-reports than the medical evidence. 13 Ghanim, 763 F.3d at 1162. Here, the ALJ provided the basis for the conclusion, as 14 Dr. Deramo was not able to perform an exam and make findings during the video
15 visit, and his exam records do not reflect findings supporting the limitations. Tr. 16 546. However, as discussed supra, Plaintiff’s symptom allegations were not 17 properly considered by the ALJ. For this reason, Dr. Deramo’s opinion must also be 18 revisited on remand.
19 D. Remedy 20 Plaintiff argues the proper remedy is to remand for benefits. ECF No. 12 at 21 21. The decision whether to remand for further proceedings or reverse and award 1 benefits is within the discretion of the district court. McAllister v. Sullivan, 888 F.2d 2 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate where “no 3 useful purpose would be served by further administrative proceedings, or where the 4 record has been thoroughly developed,” Varney v. Sec’y of Health & Human Servs.,
5 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused by remand would be 6 “unduly burdensome[.]” Terry v. Sullivan, 903 F.2d 1273, 1280 (9th Cir. 1990); see 7 also Garrison, 759 F.3d at 1021 (noting that a district court may abuse its discretion
8 not to remand for benefits when all of these conditions are met). This policy is 9 based on the “need to expedite disability claims.” Varney, 859 F.2d at 1401. But 10 where there are outstanding issues that must be resolved before a determination can 11 be made, and it is not clear from the record that the ALJ would be required to find a
12 claimant disabled if all the evidence were properly evaluated, remand is appropriate. 13 See Benecke, 379 F.3d at 595-96; Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 14 2000).
15 Here, it is not clear from the record that the ALJ is required to find the Plaintiff 16 disabled if all the evidence is properly evaluated. Remand is the appropriate remedy. 17 On remand, the ALJ should reassess Plaintiff’s symptom claims, including an 18 assessment of the waxing and waning of symptoms due to fibromyalgia. The ALJ
19 should also reassess the medical opinions, especially regarding manipulative 20 limitations, taking into account the effect of fibromyalgia and all relevant 21 impairments on Plaintiff’s manipulative functioning. 1 CONCLUSION 2 Having reviewed the record and the ALJ’s findings, this Court concludes the ALJ’s decision is not supported by substantial evidence and free of harmful legal error. Accordingly, 5 1. Plaintiff's Motion for Summary Judgment, ECF No. 12, is GRANTED in 6 part. 7 2. Defendant’s Motion for Summary Judgment, ECF No. 13, is DENIED. 8 3. This case is REVERSED and REMANDED for further administrative 9 proceedings consistent with this Order pursuant to sentence four of 42 U.S.C. 10 § 405(g). 11 IT IS SO ORDERED. The District Court Clerk is directed to enter this 12 || Order and provide copies to counsel. Judgment shall be entered for Plaintiff and the 13 || file shall be CLOSED. 14 DATED September 27, 2023. OP V2
16 Yee suKO Senior United States District Judge 17 18 19 20 21
ORNER _%70