Foreman v. Commissioner of Social Security Administration

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8

Amy M arie Foreman, ) No. CV-22-08116-PCT-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) Commissioner of Social Security ) 12 Administration, ) 13 ) ) 14 Defendant. )

15 Plaintiff Amy Marie Foreman seeks judicial review of the denial of her application 16 for Social Security Disability Insurance under the Social Security Act, 42 U.S.C. 17 § 405(g). Before the Court are Plaintiff’s Opening Brief (Doc. 10), Defendant 18 Commissioner of Social Security Administration’s Answering Brief (Doc. 11), Plaintiff’s 19 Reply Brief (Doc. 12), and the Administrative Record (Doc. 9). Upon review, the Court 20 reverses the Administrative Law Judge’s decision (AR 17–26)1 and remands for further 21 proceedings. 22 I. BACKGROUND 23 Plaintiff filed a Title II application for disability insurance benefits on July 19, 24 2019, for a period of disability beginning on January 1, 2014. (AR 20). Plaintiff testified 25 at an administrative hearing on January 25, 2021 (AR 80–119) and a supplemental 26 administrative hearing on May 7, 2021 (AR 39–77), after which the Administrative Law 27

28 1 Administrative Record (see Doc. 16). 1 Judge (“ALJ”) found Plaintiff was not disabled (AR 17–26). On May 3, 2022, the 2 Appeals Council denied Plaintiff’s request for review and adopted the ALJ’s decision as 3 the agency’s final decision. (AR 2–4). 4 The Court has reviewed the medical evidence in its entirety and will discuss the 5 pertinent medical evidence in addressing the issues raised by the parties. Upon 6 considering the medical records and opinions, the ALJ that “there were no medical signs 7 or laboratory findings to substantiate the existence of a medically determinable 8 impairment” and that Plaintiff therefore “was not under a disability, as defined in the 9 Social Security Act, at any time from January 1, 2014, the alleged onset date, through 10 December 31, 2018, the date last insured.” (AR 25). 11 II. LEGAL STANDARD 12 A person is considered “disabled” for the purpose of receiving social security 13 benefits if he is unable to “engage in any substantial gainful activity by reason of any 14 medically determinable physical or mental impairment which can be expected to result in 15 death or which has lasted or can be expected to last for a continuous period of not less 16 than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Social Security Administration’s 17 decision to deny benefits should be upheld unless it is based on legal error or is not 18 supported by substantial evidence. Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 19 (9th Cir. 2008). “Substantial evidence is more than a mere scintilla but less than a 20 preponderance.” Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citation 21 omitted). “Where evidence is susceptible to more than one rational interpretation, the 22 ALJ’s decision should be upheld.” Trevizo v. Berryhill, 871 F.3d 664, 674–75 (9th Cir. 23 2017). The Court “must consider the entire record as a whole, weighing both the evidence 24 that supports and the evidence that detracts from the Commissioner’s conclusion, and 25 may not affirm simply by isolating a specific quantum of supporting evidence.” Id. at 26 675. The Court reviews “only the reasons provided by the ALJ in the disability 27 determination and may not affirm the ALJ on a ground upon which [she or] he did not 28 rely.” Id. The Court will not reverse for an error that is “inconsequential to the ultimate 1 nondisability determination” or where the ALJ’s “path may reasonably be discerned, 2 even if the [ALJ] explains [his] decision with less than ideal clarity.” Treichler v. 3 Comm’r of Soc. Sec., 775 F.3d 1090, 1099 (9th Cir. 2014) (citing Alaska Dept. of Envtl. 4 Conservation v. E.P.A., 540 U.S. 461, 497 (2004)). 5 To determine whether a claimant is disabled for purposes of the Act, the ALJ 6 follows a five-step process. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 7 20 C.F.R. § 404.1520(a)). The claimant bears the burden of proof on the first four steps, 8 and the burden shifts to the Commissioner at step five. Id. At the first step, the ALJ 9 determines whether the claimant is presently engaging in substantial gainful activity. 20 10 C.F.R. § 404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a 11 “severe” medically determinable physical or mental impairment. 20 C.F.R. 12 § 404.1520(a)(4)(ii). At step three, the ALJ considers whether the claimant’s impairment 13 or combination of impairments meets or medically equals an impairment listed in 14 Appendix 1 to Subpart P of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the 15 claimant is automatically found to be disabled. Id. At step four, the ALJ assesses the 16 claimant’s residual functional capacity (“RFC”) and determines whether the claimant is 17 still capable of performing past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If not, the 18 ALJ proceeds to the fifth and final step, where she determines whether the claimant can 19 perform any other work in the national economy based on the claimant’s RFC, age, 20 education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If not, the claimant is 21 disabled. Id. 22 III. DISCUSSION 23 The only issue Plaintiff raises in this case is whether the ALJ’s finding that 24 Plaintiff has no medically determinable impairments during the relevant time period is 25 supported by substantial evidence (Doc. 10 at 1). A medically determinable impairment is 26 one that “result[s] from anatomical, physiological, or psychological abnormalities that 27 can be shown by medically acceptable clinical and laboratory diagnostic techniques.” 20 28 C.F.R. § 404.1521. In other words, a medically determinable impairment “must be 1 established by objective medical evidence from an acceptable medical source”; a 2 claimant’s “statement of symptoms, a diagnosis, or a medical opinion” cannot be used to 3 establish a medically determinable impairment.” Id.; see also id. § 404.1529(b) (“Your 4 symptoms, such as pain, fatigue, shortness of breath, weakness, or nervousness, will not 5 be found to affect your ability to do basic work activities unless medical signs or 6 laboratory findings show that a medically determinable impairment(s) is present.”). 7 In this case, Plaintiff alleges the following impairments: “hyper sensitivity famer’s 8 lung; bowel disease; sponge kidney issues; white matter disorder; multi chemical electro; 9 and mold microtomies.” (Doc. 10 at 2). Her arguments, however, focus primarily on 10 multiple chemical sensitivity (“MCS”). “The diagnosis of a multiple chemical sensitivity 11 is a tricky one, because it is, by its very nature, idiosyncratic and difficult to assess 12 objectively.” Teitelbaum v. Astrue, No. No. CV 10-07167 RZ, 2011 WL 5293278, at *1 13 (C.D. Cal. Nov. 3, 2011). In Teitelbaum, like in this case, the plaintiff reported “acute 14 sensitivity to her environment,” including “pain from being around electricity and 15 chemicals.” Id. The ALJ in Teitelbaum “stated that Plaintiff’s testimony alone could not 16 establish a severe impairment, and that there was little objective evidence of her claimed 17 impairment of multiple chemical sensitivity” such that it did not amount to a medically 18 determinable impairment. Id. The district court reversed, finding that “[t]he ALJ erred by 19 effectively requiring objective evidence for a disease that eludes such measurement.” Id. 20 at *2 (quoting Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004)). The court 21 reasoned that although “there was not evidence [of MCS] that could be measured in the 22 way that blood pressure can be measured, there was, in fact, not only the testimony of the 23 claimant, but two other kinds of evidence as well: the treating physicians’ assessments, 24 and the testimony of third-party [lay] witnesses.” Id. 25 Similarly, here, the ALJ stated that Plaintiff “has very little objective evidence of 26 record that addresses a medically determinable impairment, which causes the claimant’s 27 allegedly disabling symptoms.” (AR 24). But like in Teitelbaum, the record includes 28 assessments by a treating physician, Dr. Kristi Mattson, as well as lay witness statements. 1 Dr. Mattson diagnosed Plaintiff with “Mold Mycotoxicosis, [MCS], numerous dangerous 2 allergies to foods and medications and very symptomatic and disabling Electrical 3 Hypersensitivity” on February 2, 2019. (AR 461). In November 2019, Plaintiff 4 underwent allergen testing, the results of which the ALJ did not discuss. (AR 24). On 5 February 8, 2021, Dr. Mattson provided a nine-page opinion letter stating that “[b]y 6 January 1, 2014, [Plaintiff] had an active diagnosis of [MCS],” citing the CDC diagnostic 7 criteria for MCS. (AR 685). The ALJ discredited Dr. Mattson’s opinion because: 8 Her opinions postdate the claimant’s date last insured and, while her initial opinion was rendered only two months 9 following the expiration of the claimant’s date last insured, it is not clear where the medical history was derived from nor is 10 there objective treatment to substantiate her opinion. The initial opinion was rendered after a single visit with the 11 claimant, and prior to the performance of any medical or laboratory testing. The November 2019 testing was 12 performed almost one year after the expiration of the date last insured. Dr. Mattson identifies no objective medical evidence 13 to establish the claimant’s medical condition back to her date last insured. 14 15 (AR 24–25). 16 Initially, “[a]lthough contemporaneous medical evidence is preferred, a claimant 17 may offer retrospective diagnoses that relate back to the insured period to show 18 disability.” Petty v. Astrue, 550 F. Supp. 2d 1089, 1097 (D. Ariz. 2008) (finding an ALJ 19 erred in rejecting claimant’s depression as a medically determinable impairment because 20 physician’s examination occurred more than one year after claimant’s date last insured). 21 Thus, the ALJ erred to the extent he rejected certain evidence simply because it postdated 22 Plaintiff’s date last insured. This is particularly notable with respect to the November 23 2019 allergen testing because if the testing supports the MCS diagnosis and relates back 24 to the insured period, then it is objective medical evidence of Plaintiff’s impairment.2 25 26 2 To be sure, it is entirely unclear from the record whether or not the allergen testing supports the MCS diagnosis. Medical expert Dr. James Haynes testified at 27 Plaintiff’s hearing that “he was not qualified to testify as to the [November 2019] laboratory findings.” (AR 25), and Dr. Mattson’s opinions do not appear to explicitly 28 discuss the allergen testing in relation to Plaintiff’s MCS. 1 Although a retrospective diagnosis does not necessarily relate back to the insured period, 2 the ALJ’s decision does not provide substantial evidence to discredit Dr. Mattson’s 3 opinion that Plaintiff’s MCS dates back to January 1, 2014. 4 Regarding the lack of objective treatment, Dr. Mattson’s February 2019 opinion 5 states that “[t]he mainstay of treatment is ‘avoidance,’” which Plaintiff was already doing 6 by the time of Dr. Mattson’s first examination. (AR 461). Dr. Mattson noted that Plaintiff 7 “found a rural isolated area . . . where with stringent attention to NO . . . chemical 8 exposure in her living area, she has been symptom free.” (AR 461). The record does not 9 appear to identify any other treatments that may have been effective. Thus, the fact that 10 Dr. Mattson did not prescribe additional treatment is not especially notable. Nor is it 11 significant that Dr. Mattson’s initial opinion came after just one visit with Plaintiff and 12 prior to any testing, given that her opinion remained consistent after additional visits and 13 testing. 14 Finally, the ALJ discredited Dr. Mattson’s opinions because she “based her 15 diagnoses on [Plaintiff’s] subjective complaints” and “it is not clear where the medical 16 history was derived from.” (AR 24–25). But this is not entirely true. Dr. Mattson’s 17 opinions refer to Plaintiff’s 2010 and 2013 medical records, as well as her own 18 observations of Plaintiff and her physical reactions to certain environmental stimuli. (See 19 AR 461, 685–693). Thus, the reasons stated by the ALJ for discrediting Dr. Mattson’s 20 opinions are not supported by substantial evidence. 21 Instead, the ALJ credited the testimony of Dr. James Haynes, a neurologist who 22 reviewed Plaintiff’s records and concluded that Plaintiff does not have a medically 23 determinable impairment. (AR 25). Dr. Haynes testified, however, that “he was not an 24 expert on chemical sensitivities” and “was not qualified to testify as to the [November 25 2019 allergen testing] laboratory findings.” (AR 25). Thus, the ALJ’s statement that “Dr. 26 Haynes . . . based his opinion on a cumulative review and synthesis of the medical 27 evidence” is necessarily false, as Dr. Haynes apparently lacked the qualifications 28 necessary to synthesize the laboratory findings—which may constitute the critical 1 objective medical evidence needed to support a medically determinable impairment. (AR 2 25). 3 Moreover, like in Teitelbaum, the record includes several lay witness statements. 4 The ALJ “considered the lay witness statements” and found that “[a]lthough the 5 claimant’s complaints are consistent, there is simply a lack of objective medical findings 6 and diagnoses prior to the expiration of the claimant’s date last insured.” (AR 26). The 7 applicable regulations are clear that a medically determinable impairment must be 8 established by objective medical evidence, but here, there is also an issue of whether 9 Plaintiff’s claimed impairments predated her date last insured. “[T]estimony from family, 10 friends, and neighbors [is] . . . relevant to the determination of a continuously existing 11 disability with onset prior to expiration of insured status.” Flaten v. Sec’y of Health & 12 Hum. Servs., 44 F.3d 1453, 1461 n.5 (9th Cir. 1995). Thus, on remand, should the ALJ 13 find a medically determinable impairment, the lay witness statements may be used to 14 determine whether the disability existed prior to Plaintiff’s date last insured. 15 IV. CONCLUSION 16 This is a peculiar case involving a condition, MCS, that is “mysterious[ ] and 17 elusive[ ].” Teitelbaum, 2011 WL 5293278, at *1. As the Court has noted, several issues 18 remain unclear from the record. Because the ALJ’s finding that Plaintiff had no medically 19 determinable impairments during the relevant time period is not supported by substantial 20 evidence, the ALJ’s decision must be reversed. Plaintiff requests that the matter be 21 remanded for further proceedings, including a de novo hearing. “Where a de novo hearing 22 would not provide helpful insight on remand, one is not required.” Michele D. v. 23 Kijakazi, No. 1:20-cv-03145-SMJ, 2021 WL 9759484, at *2. The Court leaves it to the 24 ALJ’s sound discretion whether a de novo hearing would be helpful or whether any 25 deficiencies in the record can be addressed in other ways. See id. at *4. Accordingly, 26 IT IS ORDERED that the final decision of the Commissioner of Social Security 27 is vacated and remanded to the Commissioner of the Social Security Administration for 28 further proceedings consistent with this order. 1 IT IS FURTHER ORDERED that the Clerk of Court shall enter judgment 2.) accordingly and terminate this action. 3 Dated this 3rd day of May, 2023. 4 5 LEGG 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28