3 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 4 Sep 03, 2021
SEAN F. MCAVOY, CLERK EASTERN DISTRICT OF WASHINGTON 6
NO: 4:20-CV-05130-FVS 8 Plaintiff, ORDER GRANTING PLAINTIFF’S 9 v. MOTION FOR SUMMARY JUDGMENT AND DENYING 10 KILOLO KIJAKAZI, DEFENDANT’S MOTION FOR COMMISSIONER OF SOCIAL SUMMARY JUDGMENT 11 SECURITY,1
12 Defendant.
13 BEFORE THE COURT are the parties’ cross motions for summary 14 judgment. ECF Nos. 15 and 16. This matter was submitted for consideration 15 without oral argument. The Plaintiff is represented by Attorney Chad L. Hatfield. 16 The Defendant is represented by Special Assistant United States Attorney 17
18 1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 19 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo 20 Kijakazi is substituted for Andrew M. Saul as the defendant in this suit. No further 21 action need be taken to continue this suit. See 42 U.S.C. § 405(g). 1 Benjamin J. Groebner. The Court has reviewed the administrative record and the 2 parties’ completed briefing and is fully informed. For the reasons discussed below, 3 the court GRANTS Plaintiff’s Motion for Summary Judgment, ECF No. 15, and 4 DENIES Defendant’s Motion for Summary Judgment, ECF No. 16.
6 Plaintiff Stasha H.2 protectively filed for disability insurance benefits on 7 March 1, 2017, alleging an onset date of May 5, 2013. Tr. 167-73. Benefits were
8 denied initially, Tr. 94-100, and upon reconsideration, Tr. 102-08. Plaintiff 9 appeared for a hearing before an administrative law judge (“ALJ”) on August 28, 10 2019. Tr. 30-61. Plaintiff was represented by counsel and testified at the hearing. 11 Id. The ALJ denied benefits, Tr. 12-29, and the Appeals Council denied review.
12 Tr. 1. The matter is now before this court pursuant to 42 U.S.C. § 405(g). 14 The facts of the case are set forth in the administrative hearing and
15 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner. 16 Only the most pertinent facts are summarized here. 17 Plaintiff was 35 years old at the time of the hearing. See Tr. 167. She 18 completed high school and two years of college. Tr. 192. Plaintiff lives with her
20 2 In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s first 21 name and last initial. 1 husband and her children. See Tr. 219. At the time of the hearing, Plaintiff was 2 working part-time as a childcare leader. Tr. 57. Plaintiff testified that she typically 3 misses ten hours a month, or three of her working days in a row, due to her 4 “dystonia storms.” Tr. 47-48. She reported that if she tries to work more than three
5 hours a day she gets “more storms,” and she needs to nap or lay down “a lot” in 6 order to continue working her part time schedule. Tr. 49.
8 A district court’s review of a final decision of the Commissioner of Social 9 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 10 limited; the Commissioner’s decision will be disturbed “only if it is not supported 11 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153,
12 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 13 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 14 (quotation and citation omitted). Stated differently, substantial evidence equates to
15 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 16 citation omitted). In determining whether the standard has been satisfied, a 17 reviewing court must consider the record as a whole rather than searching for 18 supporting evidence in isolation. Id.
19 In reviewing a denial of benefits, a district court may not substitute its 20 judgment for that of the Commissioner. If the evidence in the record “is 21 susceptible to more than one rational interpretation, [the court] must uphold the 1 ALJ’s findings if they are supported by inferences reasonably drawn from the 2 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district 3 court “may not reverse an ALJ’s decision on account of an error that is harmless.” 4 Id. An error is harmless “where it is inconsequential to the [ALJ’s] ultimate
5 nondisability determination.” Id. at 1115 (quotation and citation omitted). The 6 party appealing the ALJ’s decision generally bears the burden of establishing that 7 it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009).
9 A claimant must satisfy two conditions to be considered “disabled” within 10 the meaning of the Social Security Act. First, the claimant must be “unable to 11 engage in any substantial gainful activity by reason of any medically determinable
12 physical or mental impairment which can be expected to result in death or which 13 has lasted or can be expected to last for a continuous period of not less than twelve 14 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be
15 “of such severity that he is not only unable to do his previous work[,] but cannot, 16 considering his age, education, and work experience, engage in any other kind of 17 substantial gainful work which exists in the national economy.” 42 U.S.C. § 18 423(d)(2)(A).
19 The Commissioner has established a five-step sequential analysis to 20 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 21 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 1 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in 2 “substantial gainful activity,” the Commissioner must find that the claimant is not 3 disabled. 20 C.F.R. § 404.1520(b). 4 If the claimant is not engaged in substantial gainful activity, the analysis
5 proceeds to step two. At this step, the Commissioner considers the severity of the 6 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers 7 from “any impairment or combination of impairments which significantly limits
8 [his or her] physical or mental ability to do basic work activities,” the analysis 9 proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment 10 does not satisfy this severity threshold, however, the Commissioner must find that 11 the claimant is not disabled. 20 C.F.R. § 404.1520(c).
12 At step three, the Commissioner compares the claimant’s impairment to 13 severe impairments recognized by the Commissioner to be so severe as to preclude 14 a person from engaging in substantial gainful activity. 20 C.F.R. §
15 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the 16 enumerated impairments, the Commissioner must find the claimant disabled and 17 award benefits. 20 C.F.R. § 404.1520(d). 18 If the severity of the claimant’s impairment does not meet or exceed the
19 severity of the enumerated impairments, the Commissioner must pause to assess 20 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 21 defined generally as the claimant’s ability to perform physical and mental work 1 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 2 404.1545(a)(1), is relevant to both the fourth and fifth steps of the analysis. 3 At step four, the Commissioner considers whether, in view of the claimant’s 4 RFC, the claimant is capable of performing work that he or she has performed in
5 the past (past relevant work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is 6 capable of performing past relevant work, the Commissioner must find that the 7 claimant is not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of
8 performing such work, the analysis proceeds to step five. 9 At step five, the Commissioner considers whether, in view of the claimant’s 10 RFC, the claimant is capable of performing other work in the national economy. 11 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner
12 must also consider vocational factors such as the claimant’s age, education and 13 past work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is capable of 14 adjusting to other work, the Commissioner must find that the claimant is not
15 disabled. 20 C.F.R. § 404.1520(g)(1). If the claimant is not capable of adjusting to 16 other work, analysis concludes with a finding that the claimant is disabled and is 17 therefore entitled to benefits. 20 C.F.R. § 404.1520(g)(1). 18 The claimant bears the burden of proof at steps one through four above.
19 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 20 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 21 capable of performing other work; and (2) such work “exists in significant 1 numbers in the national economy.” 20 C.F.R. § 404.1560(c)(2); Beltran v. Astrue, 2 700 F.3d 386, 389 (9th Cir. 2012). 4 At step one, the ALJ found that Plaintiff did not engage in substantial
5 gainful activity during the period from her alleged onset date of May 5, 2013 6 through her date last insured of June 30, 2019. Tr. 17. At step two, the ALJ found 7 that, through the date last insured, Plaintiff had the following severe impairment:
8 functional movement disorder. Tr. 18. At step three, the ALJ found that, through 9 the date last insured, Plaintiff did not have an impairment or combination of 10 impairments that met or medically equaled the severity of a listed impairment. Tr. 11 19. The ALJ then found that, through the date last insured, Plaintiff had the RFC
12 to perform a full range of light work as defined in 20 CFR 404.1567(b) with the following exceptions: she could not climb ladders, ropes, or scaffolds, 13 and could frequently stoop, kneel, crouch, crawl, balance, and climb ramps and stairs; she could not have concentrated exposure to extreme cold or heat, 14 or to hazards, such as unprotected height and moving mechanical parts; she could have only superficial contact with the public and coworkers; and she 15 required a routine, predictable work environment with no more than occasional changes and no fast-paced work. 16 Tr. 20. At step four, the ALJ found that, through the date last insured, Plaintiff was 17 unable to perform any past relevant work. Tr. 23. At step five, the ALJ found that, 18 through the date last insured, considering Plaintiff’s age, education, work 19 experience, and RFC, there were other jobs that existed in significant numbers in 20 the national economy that Plaintiff could have performed, including: mail clerk, 21 1 concluded that Plaintiff was not under a disability, as defined in the Social Security 2 Act, at any time from May 5, 2013, through June 30, 2019, the date last insured. 3 Tr. 25.
5 Plaintiff seeks judicial review of the Commissioner’s final decision denying 6 her disability insurance benefits under Title II of the Social Security Act. ECF No. 7 15. Plaintiff raises the following issues for this Court’s review:
8 1. Whether the ALJ erred at step two; 9 2. Whether the ALJ properly considered Plaintiff’s symptom claims; 10 3. Whether the ALJ properly considered the medical opinion evidence; 11 4. Whether the ALJ erred at step three
12 5. Whether the ALJ properly considered lay witness testimony; and 13 6. Whether the ALJ erred at step five.
15 A. Step Two 16 As an initial matter, at step two, a claimant must establish that he or she 17 suffers from a medically determinable impairment. See Ukolov v. Barnhart, 420 18 F.3d 1002, 1004-1005 (9th Cir. 2005). The claimant must prove the existence of a
19 physical or mental impairment by providing medical evidence consisting of signs, 20 symptoms, and laboratory findings. 20 C.F.R. § 416.908 (1991). “Under no 21 circumstances may the existence of an impairment be established on the basis of 1 symptoms alone.” S.S.R. 96-4p. Thus, in general, “regardless of how many 2 symptoms an individual alleges, or how genuine the individual's complaints may 3 appear to be, the existence of a medically determinable physical or mental 4 impairment cannot be established in the absence of objective medical
5 abnormalities, i.e., medical signs and laboratory findings.” Id. 6 Furthermore, for that medically determinable impairment to be considered 7 ‘severe’ at step two of the sequential analysis, it must significantly limit an
8 individual’s ability to perform basic work activities. 20 C.F.R. § 416.920(c); 9 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). An impairment that is ‘not 10 severe’ must be a slight abnormality (or a combination of slight abnormalities) that 11 has no more than a minimal effect on the ability to do basic work activities. SSR
12 96-3p, 1996 WL 374181 at *1 (July 2, 1996). Plaintiff bears the burden to 13 establish the existence of a severe impairment or combination of impairments, 14 which prevent him from performing substantial gainful activity, and that the
15 impairment or combination of impairments lasted for at least twelve continuous 16 months. 20 C.F.R. §§ 416.905, 416.912(a); Edlund v. Massanari, 253 F.3d 1152, 17 1159-60 (9th Cir. 2011). However, step two is “a de minimus screening device 18 [used] to dispose of groundless claims.” Smolen, 80 F.3d at 1290. “Thus, applying
19 our normal standard of review to the requirements of step two, we must determine 20 whether the ALJ had substantial evidence to find that the medical evidence clearly 21 established that [Plaintiff] did not have a medically severe impairment or 1 combination of impairments.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2 2005). 3 Here, the ALJ found at step two that Plaintiff had the severe impairment of 4 functional movement disorder. However, the ALJ further concluded that Plaintiff
5 “has no medically determinable neurological impairment… . [S]he has consulted at 6 least two neurologists, both of whom found that her movement disorder was 7 ‘functional,’ i.e. psychiatric, and that she did not demonstrate signs or symptoms
8 indicative of a physiologically-based neurological disorder.” Tr. 18. Plaintiff 9 argues that the ALJ “erred by dismissing [Plaintiff’s] severe impairment of 10 dystonia as groundless at step two.” ECF No. 15 at 12-13. In support of this 11 finding, Plaintiff cited ongoing diagnoses by “numerous physicians” of “dystonia,
12 dystonia storms, and/or dystonic movements based on her longstanding 13 symptomology of severe widespread spasms, abnormal movements, and facial 14 tics.” ECF No. 15 at 12; Tr. 298 (facial twitching noted and diagnosis of
15 “movement disorder consistent with dystonia”), 300-01, 305-07 (facial twitching 16 noted and dystonia diagnosis), 318 (facial tics noted and dystonia diagnosis), 330 17 (noting uncontrollable twitching in arms and legs, and right facial sagging), 383 18 (facial tics noted and dystonia diagnosis), 407 (noting observed “dystonia storm
19 with severe widespread muscle spasm/abnormal scissoring gait using walker to 20 ambulate”), 421 (noting “frequent and at times continuous spasms or tightening of 21 the left side of her face” that sometimes moves to the right side of her face or 1 becomes bilateral), 441 (noting Plaintiff was “evaluated by a neurology specialist 2 with extending reported diagnoses including dystonia), 442 (noting observed 3 “dystonia storm with severe widespread muscle spasm/abnormal scissoring gait 4 using walker to ambulate”), 448 (diagnoses include dystonia and dystonic
5 movements), 464 (noting right facial droop and moderate dysarthria), 475 (noting 6 left sided facial twitching and intermittent right facial droop), 481 (noting period 7 contortion of left side of face and droop of right side).
8 Defendant summarily argues that the ALJ’s finding at step two was 9 supported by substantial evidence because “[t]wo different neurologists, Anitha 10 Raghunath, M.D., and Shu-Ching Hu, M.D. examined Haynes and concluded that 11 she had functional movement disorder, not dystonia.” ECF No. 16 at 3 (citing Tr.
12 421, 483). However, the Court notes that Dr. Raghunath listed both dystonia and 13 functional movement disorder under “active problems,” noted “safety during 14 ambulation or standing up should also be advised,” and her “impression” was
15 “likely functional movement disorder.” Tr. 483-84. Dr. Hu noted that Plaintiff 16 displayed “frequent and at times continuous spasms or tightening of the left side of 17 her face” but she “seemed to be able to suppress these movements when she tries 18 hard.” Dr. Hu diagnosed Plaintiff with functional movement disorder,
19 recommended that Plaintiff “continue a non-pharmacological approach, a ‘holistic’ 20 approach that she has been pursuing,” and further recommended “cognitive 21 behavioral therapy by a psychologist experienced in managing functional 1 neurological disorders.” Tr. 421 (emphasis added). Further, contrary to the ALJ’s 2 finding at step two, neither neurologist explicitly noted that Plaintiff’s movement 3 disorder was “psychiatric”; rather, they found that her movement disorder was 4 “functional” based on inconsistency of her movements and the unremarkable
5 results of her diagnostic workup. See Tr. 421, 483. Finally, at no point in the 6 decision did the ALJ consider Plaintiff’s treating the medical expert’s testimony as 7 follows:
8 [Plaintiff] has been evaluated by two different neurologists who were unable to find the cause of her twitching and therefore assumed that it was on a 9 psychological basis and I find that is not an acceptable interpretation because of the fact that one can have similar types of problems on a variety of 10 genetic bases. Those were not – and that was not evaluated and assume we have a standard definition of her problems. . . . But the dystonia she has, I 11 think equals [listing 11.02 for epilepsy].
12 Tr. 36. 13 Based on the foregoing, the Court finds that the ALJ’s conclusory finding 14 that Plaintiff “has no medically determinable neurological impairment,” based 15 solely on two examining opinions, and without setting forth any specific analysis 16 as to ongoing diagnoses of dystonia, accompanied by remarkable clinical findings 17 on physical examination, was not supported by substantial evidence. See, e.g., 18 Holohan v. Massanari, 246 F.3d 1195, 1207-08 (9th Cir. 2001) (holding that an 19 ALJ cannot selectively rely on some entries in a claimant’s records while ignoring 20 others). 21 1 Defendant contends that regardless of any error, Plaintiff failed to show the 2 ALJ’s finding at step two resulted in “harm,” because “an error at step two can 3 only prejudice a claimant if it warrants a different finding at step three or a 4 different residual functional capacity finding.” ECF No. 16 at 3 (citing Burch v.
5 Barnhart, 400 F.3d 676, 682 (9th Cir. 2005)). An error is harmless if “there 6 remains substantial evidence supporting the ALJ's decision and the error ‘does not 7 negate the validity of the ALJ's ultimate conclusion.’” Molina, 674 F.3d at 1115
8 (quoting Batson v. Comm'r of Soc. Sec. Admin, 359 F.3d 1190, 1197 (9th Cir. 9 2004)). Thus, if a claimant prevails at step two and the ALJ considers all 10 impairments - regardless of severity - in the subsequent steps, an ALJ's failure to 11 consider an impairment “severe” is harmless. See Lewis v. Astrue, 498 F.3d 909,
12 911 (9th Cir. 2007). Here, Plaintiff prevailed at step two; however, the ALJ did 13 not consider any physical limitations at step three because Plaintiff’s “functional 14 movement disorder is properly considered a mental impairment,” and the ALJ
15 summarily dismissed the medical expert opinion that Plaintiff met a listing at step 16 three because “[he] cannot find that [Plaintiff] equals a listing without a medically 17 determinable impairment.” Tr. 19, 23; Cf. Lewis, 498 F.3d at 911 (holding that 18 ALJ’s failure to list plaintiff’s bursitis as a severe impairment at step two was
19 harmless where ALJ specifically discussed bursitis and its effects when identifying 20 the basis for limitations in the RFC; and considered limitations caused by bursitis 21 at step four). Thus, the ALJ’s failure to properly consider Plaintiff’s impairments 1 at step two cannot be considered harmless, because he confined his analysis to 2 mental impairments at subsequent steps of the sequential analysis. The ALJ’s 3 selective review of the record permeated the ALJ’s entire decision and impacted 4 the analysis at the subsequent steps.
5 Based on the foregoing, this case must be remanded in order to determine 6 whether all of Plaintiff's claimed impairments were medically determinable and 7 severe, and, if so, to consider any credible limitations arising out of Plaintiff's
8 impairments at all subsequent steps in the sequential evaluation. 9 B. Symptom Claims 10 An ALJ engages in a two-step analysis when evaluating a claimant’s 11 testimony regarding subjective pain or symptoms. “First, the ALJ must determine
12 whether there is objective medical evidence of an underlying impairment which 13 could reasonably be expected to produce the pain or other symptoms alleged.” 14 Molina, 674 F.3d at 1112 (internal quotation marks omitted). “The claimant is not
15 required to show that her impairment could reasonably be expected to cause the 16 severity of the symptom he has alleged; he need only show that it could reasonably 17 have caused some degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 18 (9th Cir. 2009) (internal quotation marks omitted).
19 Second, “[i]f the claimant meets the first test and there is no evidence of 20 malingering, the ALJ can only reject the claimant’s testimony about the severity of 21 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 1 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 2 citations and quotations omitted). “General findings are insufficient; rather, the 3 ALJ must identify what testimony is not credible and what evidence undermines 4 the claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th
5 Cir. 1995)); Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ 6 must make a credibility determination with findings sufficiently specific to permit 7 the court to conclude that the ALJ did not arbitrarily discredit claimant’s
8 testimony.”). “The clear and convincing [evidence] standard is the most 9 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 10 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 11 924 (9th Cir. 2002)).
12 Here, the ALJ found Plaintiff’s medically determinable impairments could 13 reasonably be expected to cause some of the alleged symptoms; however, 14 Plaintiff’s “statements concerning the intensity, persistence and limiting effects of
15 these symptoms are not entirely consistent with the medical evidence and other 16 evidence in the record” for several reasons. Tr. 20. 17 First, the ALJ found that 18 [p]erhaps the most compelling factor undermining [Plaintiff’s] allegations is her course of treatment. [Plaintiff] has received minimal, sporadic 19 treatment, with no mental health treatment of any kind, despite repeated encouragement from doctors to seek psychological care. If [Plaintiff] were 20 as debilitated as she has alleged, one would expect her to seek more extensive treatment, and certainly all treatment recommended by her 21 doctors, even if it is not treatment she believes will help. It is surprising that 1 including counseling. In any event, she also has not pursued significant physical treatment despite her alleged belief that her symptoms are 2 physically based. [Plaintiff] admitted she has medical insurance, so cost should not be an insurmountable barrier. At one point, [Plaintiff] asserted 3 that she had a very high deductible of $5,000.00 or $10,000.00, but she ultimately admitted she did not actually know the amount of her deductible. 4 I find her failure to seek aggressive treatment of any kind for her allegedly debilitating symptoms undermines her allegations. 5 Tr. 22. Unexplained, or inadequately explained, failure to seek treatment or follow 6 a prescribed course of treatment may be the basis for an adverse credibility finding 7 unless there is a showing of a good reason for the failure. Orn v. Astrue, 495 F.3d 8 625, 638 (9th Cir. 2007). Here, in support of his finding that Plaintiff failed to 9 seek “recommended” psychological care, the ALJ cites three treatment records, 10 including: (1) Dr. Hu’s “recommendation” of “cognitive behavioral therapy by a 11 psychologist experienced in managing functional neurological disorders”; (2) a 12 note from Plaintiff’s treating physician to “continue with neurological care 13 recommendations – psychology recommendation”; and (3) a treatment note from a 14 hospitalist in the emergency room indicating that Plaintiff was seen by a 15 neurologist and he “recommended behavioral/holistic treatments.” Tr. 22, 421, 16 442, 472. As an initial matter, the Court notes that two out of the three records 17 cited by the ALJ to support this finding merely restate the recommendation of Dr. 18 Hu to pursue treatment by a psychologist “experienced in managing functional 19 neurological disorders,” but they do not rise to the level of substantial evidence to 20 support the ALJ’s finding that Plaintiff was “repeated[ly] encouraged [by] doctors 21 1 indicates that (1) her treating physician referred her for a single “routine” 2 psychological visit, (2) Plaintiff testified that her primary doctor “doesn’t feel like 3 this is psychological,” and (3) a treating emergency room physician observed a 4 movement disorder and specifically noted he did “not think it [was] psychogenic or
5 functional.” Tr. 39, 330, 444. The ALJ also did not appear to consider Plaintiff’s 6 testimony that the treating physician’s referral to the psychologist was based on her 7 own request, rather than the recommendation of Dr. Hu. Tr. 40. Finally, the Court
8 notes that the precise recommendation from Dr. Hu was “cognitive behavior 9 therapy by a psychologist experienced in managing functional neurological 10 disorders.” Tr. 421 (emphasis added). However, as discussed below, the ALJ 11 failed to properly consider Plaintiff’s explanation for any alleged failure to pursue
12 treatment with a specialist in functional neurological disorders. For all of these 13 reasons, the Court finds the ALJ’s rejection of Plaintiff’s symptom claims based 14 specifically on her failure to pursue mental health treatment, was not supported by
15 substantial evidence. 16 Next, the ALJ discounted Plaintiff’s symptom claims because she “has not 17 pursued significant physical treatment.” Tr. 22. However, as noted by Plaintiff, 18 she has undergone testing and traveled to Seattle for evaluation at the UWMC
19 Neurology Clinic. ECF No. 15 at 17 (citing Tr. 39, 417-26). Moreover, pursuant to 20 Social Security Ruling 16-3p, an ALJ “will not find an individual’s symptoms 21 inconsistent with the evidence in the record on this basis without considering 1 possible reasons he or she may not comply with treatment or seek treatment 2 consistent with the degree of his or her complaints.” Social Security Ruling 3 (“SSR”) 16-3p at *8-*9 (March 16, 2016), available at 2016 WL 1119029. Here, 4 Plaintiff testified that her treating physician referred her to a “dystonia specialist”
5 at a “specialty facility” in Tacoma, “but the only person that was in when [she] 6 went to see him was that MS specialist,” and that person diagnosed a “movement 7 disorder” but said Plaintiff would have to “come back another time to see a
8 dystonia specialist.” Tr. 43-44. However, Plaintiff further testified that making 9 that after this visit they went “medically bankrupt” after consistent ER visits and 10 other medical bills, and were therefore unable to follow through on seeing the 11 dystonia specialist at a later time because they were not allowed to visit the same
12 facility that “was a part of” their medical bankruptcy. Tr. 44-45. The ALJ did not 13 consider this testimony, nor did he consider Plaintiff’s report that after the only 14 remaining local specialist in dealing with her alleged impairment moved away,
15 Plaintiff did try to follow up with a local neurologist, but they said “no, we don’t 16 specialize in what is going on with you. [You] need to see a movement specialist.” 17 Tr. 46. The Court finds the ALJ failed to properly consider whether Plaintiff’s 18 failure to pursue “aggressive treatment” was at least partially based on an inability
19 to gain access to specialized treatment. 20 In addition, as noted by Plaintiff, “any alleged lack of treatment or 21 conservative treatment can be explained by her past bankruptcy, outstanding 1 ER/ambulance bills, and the inability to afford paying the amount necessary to 2 meet her deductible.” ECF No. 15 at 17. “Disability benefits may not be denied 3 because of the claimant’s failure to obtain treatment he cannot obtain for lack of 4 funds.” Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995). The ALJ generally
5 found that because Plaintiff has medical insurance, “cost should not be an 6 insurmountable obstacle,” and noted that Plaintiff testified she had a very high 7 deductible but “admitted she did not know the exact amount of her deductible.”
8 Tr. 22, 54-55. However, the Court finds the ALJ’s cursory dismissal of Plaintiff’s 9 explanation that she could not afford treatment simply because she had medical 10 insurance, with no further investigation as to her testimony regarding bankruptcy, 11 her ongoing medical expenses, or the out-of-pocket cost of specialized medical
12 treatment, was not supported by substantial evidence. See Tr. 55 (ALJ noted 13 surprise that a deductible could reach up to $10,000.00). Thus, the ALJ erred by 14 failing to consider whether inability to afford treatment was a good reason for any
15 alleged failure to pursue “aggressive” treatment. Based on the foregoing, he ALJ’s 16 rejection of Plaintiff’s symptom claims because she failed to pursue mental and 17 physical treatment, was not clear, convincing, and supported by substantial 18 evidence.
19 Second, the ALJ found that Plaintiff’s reported activities were “inconsistent 20 with a finding of disability.” Tr. 22. A claimant need not be utterly incapacitated 21 in order to be eligible for benefits. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1 1989); see also Orn, 495 F.3d at 639 (“the mere fact that a plaintiff has carried on 2 certain activities . . . does not in any way detract from her credibility as to her 3 overall disability.”). Regardless, even where daily activities “suggest some 4 difficulty functioning, they may be grounds for discrediting the [Plaintiff’s]
5 testimony to the extent that they contradict claims of a totally debilitating 6 impairment.” Molina, 674 F.3d at 1113. Here, in support of this finding, the ALJ 7 cites evidence that Plaintiff is fully responsible for her children and their daily
8 care, shops for groceries and prepares meals, does chores, goes outside daily, 9 exercises between three and six miles per day, and works part-time as a preschool 10 teacher. Tr. 22 (citing Tr. 219-21, 460, 472, 495). The ALJ concludes that these 11 activities are “not what one would expect from an individual who is as debilitated
12 as [Plaintiff] alleges she is.” Tr. 22. 13 However, in making a credibility finding, the ALJ “must specifically 14 identify the testimony she or he finds not to be credible and must explain what
15 evidence undermines the testimony.” Holohan, 246 F.3d at 1208. Here, Plaintiff 16 testified that she is scheduled to work 3 hours per day, five days per week, for a 17 total of fifteen hours per week; however, she misses ten hours per month due to her 18 impairments, “usually about three days in a row.” Tr. 47-48. Moreover, the same
19 function reports cited by the ALJ specifically indicate that Plaintiff’s is able to 20 perform the activities cited by the ALJ unless she is in a “storm period” in which 21 case she is “unable to do anything except be in bed.” Tr. 218-24. Plaintiff has also 1 reported that she runs 3-6 miles regularly in an effort to “depress the dystonia 2 flares,” and to help her psychologically. Tr. 51-52, 460, 472, 495. Thus, as noted 3 by Plaintiff, while she is “functional and able to perform a wide range of activities 4 while healthy – including part-time work – she asserts disability based on
5 debilitating dystonia episodes occurring monthly,” during which she suffers “wide- 6 spread spasms, facial tics, headaches, confusion, weakness, and difficulty 7 ambulating, resulting in missed days of work and the need for bed rest three days
8 per month.” ECF No. 15 at 19 (citing Tr. 42-43, 47-52, 294). 9 The Court finds the ALJ failed to offer a sufficient explanation as to how 10 Plaintiff’s claim that she is completely unable to function only during a dystonia 11 “storm,” is inconsistent with her own reports that she is able to care of for her
12 children, do household chores, go shopping, exercise, and work part-time when she 13 is not experiencing dystonia “storms” several days per month. Therefore, the 14 ALJ’s reliance on inconsistency between Plaintiff’s “reported activities,” and her
15 specific claim that she is unable to perform those activities only during “dystonia 16 storms,” does not rise to the level of a clear and convincing reason, supported by 17 substantial evidence, to discredit the entirety of Plaintiff’s symptom claims. In 18 particular, in light of the need to reconsider the step two finding, as discussed in
19 detail above, the ALJ must reconsider Plaintiff’s symptom claims regarding her 20 dystonia, on remand. 21 1 Third, the ALJ found Plaintiff’s “weak work history also suggests the 2 explanation for her ongoing underemployment is likely something other than her 3 current medical condition.” Tr. 22. In support of this finding, the ALJ notes that 4 Plaintiff alleged onset of symptoms in 2012, “yet her earnings started decreasing in
5 2010, and she had virtually no earnings in 2011. This pattern confirms that her 6 unemployment/underemployment has its genesis in something other than her 7 medical impairments.” Tr. 22, 186. An ALJ may consider that a claimant stopped
8 working for reasons unrelated to the allegedly disabling condition when weighing 9 the Plaintiff's symptom reports. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 10 2001). However, Plaintiff’s work history prior to her alleged onset date are 11 generally of limited probative value. See Carmickle v. Comm'r, Soc. Sec. Admin.,
12 533 F.3d 1155, 1165 (9th Cir. 2008). Moreover, the ALJ offers no evidence of a 13 specific reason Plaintiff’s earnings decreased in 2011 that is unrelated to her 14 allegedly disabling condition; nor does the ALJ consider that regardless of “a
15 severe dip” in her earnings from 2011-2012, she had strong earnings prior to 2011, 16 and has continued to work part-time throughout the relevant adjudicatory period. 17 ECF No. 15 at 19-20. Finally, as noted by Plaintiff, the ALJ’s reliance on 18 Plaintiff’s “weak” work history as a reason to discount her symptom claims is
19 inconsistent with his own finding that she continued to work “part-time as a 20 preschool teacher, which can be challenging, both physically and mentally.” ECF 21 No. 15 at 20; Tr. 22. For all of these reasons, the ALJ’s rejection of Plaintiff’s 1 symptom claims based on her work history is not clear, convincing, and supported 2 by substantial evidence. 3 Fourth, and finally, the ALJ found that “unremarkable neurological evidence 4 – which includes neurological workups and exams in which [Plaintiff’s] symptoms
5 ceased with distraction, even when [Plaintiff] complained of and demonstrated 6 significant symptoms – does not support a finding of disability.” Tr. 21-22. The 7 medical evidence is a relevant factor in determining the severity of a claimant’s
8 pain and its disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. § 9 404.1529(c)(2). In support of this finding, the ALJ cited normal brain MRI results, 10 normal EEG results, unremarkable CT of the brain and neck, cessation of twitching 11 movements when distracted, and normal ambulation. Tr. 21 (citing Tr. 421, 441,
12 469, 483, 486). As discussed in detail above, Plaintiff argues that “objective 13 examination routinely notes left-sided face twitching, and treatment providers have 14 directly observed contemporaneous dystonia ‘storms,’” that include widespread
15 muscle spasm, abnormal scissoring gait, and using a walker to ambulate. ECF No. 16 15 at 16-17 (citing Tr. 407, 421, 442, 475). 17 However, regardless of whether the ALJ erred in finding Plaintiff’s 18 symptom claims were not corroborated by objective testing and physical
19 examinations, it is well-settled in the Ninth Circuit that an ALJ may not discredit a 20 claimant’s pain testimony and deny benefits solely because the degree of pain 21 alleged is not supported by objective medical evidence. Rollins v. Massanari, 261 1 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 2 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). As discussed in detail 3 above, the additional reasons given by the ALJ for discounting Plaintiff’s symptom 4 claims were legally insufficient. Thus, because lack of corroboration by objective
5 evidence cannot stand alone as a basis for a rejecting Plaintiff’s symptom claims, 6 the ALJ’s finding is inadequate. 7 The Court concludes that the ALJ did not provide clear and convincing
8 reasons, supported by substantial evidence, for rejecting Plaintiff’s symptom 9 claims. On remand, the ALJ must reconsider Plaintiff’s symptom claims 10 C. Additional Assignments of Error 11 Plaintiff additionally argues that the ALJ improperly rejected the opinion of
12 medical expert Howard Shapiro, M.D., erred at step three, improperly rejected the 13 lay witness testimony, and erred at step five. ECF No. 15. However, the ALJ's 14 error at step two alone requires remand for proper consideration of Plaintiff's
15 claimed impairments and to reconsider each of the remaining steps in the five-step 16 sequential evaluation, incorporating any additional impairments and work 17 limitations possibly caused by Plaintiff's claimed physical impairments. Moreover, 18 because the analysis of these additional errors is dependent on the ALJ’s
19 reevaluation of Plaintiff’s symptom claims, the Court declines to address these 20 challenges here. On remand, the ALJ is instructed to reconsider the step two 21 1 findings and Plaintiff’s symptom claims, and conduct a new sequential analysis, 2 including a reassessment of the step five finding if necessary. 4 The decision whether to remand for further proceedings or reverse and
5 award benefits is within the discretion of the district court. McAllister v. Sullivan, 6 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 7 where “no useful purpose would be served by further administrative proceedings,
8 or where the record has been thoroughly developed,” Varney v. Sec'y of Health & 9 Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused by 10 remand would be “unduly burdensome[.]” Terry v. Sullivan, 903 F.2d 1273, 1280 11 (9th Cir. 1990); see also Garrison v. Colvin, 759 F.3d 995, 1021 (noting that a
12 district court may abuse its discretion not to remand for benefits when all of these 13 conditions are met). This policy is based on the “need to expedite disability 14 claims.” Varney, 859 F.2d at 1401. But where there are outstanding issues that
15 must be resolved before a determination can be made, and it is not clear from the 16 record that the ALJ would be required to find a claimant disabled if all the 17 evidence were properly evaluated, remand is appropriate. See Benecke v. 18 Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 F.3d 1172,
19 1179-80 (9th Cir. 2000). 20 The Court finds that further administrative proceedings are appropriate. See 21 Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 (9th Cir. 2014) 1 (remand for benefits is not appropriate when further administrative proceedings 2 would serve a useful purpose). Here, the ALJ erred at step two and improperly 3 considered Plaintiff’s symptom claims, which calls into question whether the 4 assessed RFC, and resulting hypothetical propounded to the vocational expert, are
5 supported by substantial evidence. “Where,” as here, “there is conflicting evidence, 6 and not all essential factual issues have been resolved, a remand for an award of 7 benefits is inappropriate.” Treichler, 775 F.3d at 1101. Instead, the Court remands
8 this case for further proceedings. On remand, the ALJ should reconsider the step 9 two finding, and reevaluate Plaintiff’s symptom claims. The ALJ should also 10 reconsider the medical opinion evidence, and provide legally sufficient reasons for 11 evaluating the opinions, supported by substantial evidence. If necessary, the ALJ
12 should order additional consultative examinations and, if appropriate, take additional 13 testimony from a medical expert. Finally, the ALJ should reconsider the remaining 14 steps in the sequential analysis, reassess Plaintiff's RFC and, if necessary, take
15 additional testimony from a vocational expert which includes all of the limitations 16 credited by the ALJ. 17 ACCORDINGLY, IT IS ORDERED: 18 1. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is GRANTED,
19 and the matter is REMANDED to the Commissioner for additional 20 proceedings consistent with this Order. 21 2. Defendant’s Motion for Summary Judgment, ECF No. 16, is DENIED. 1 3. Application for attorney fees may be filed by separate motion. 2 The District Court Clerk is directed to enter this Order and provide copies to 3 || counsel. Judgment shall be entered for Plaintiff and the file shall be CLOSED. 4 DATED September 3, 2021. 5 6 @. hyd Scere ? Stanley A. Bastian 10 Chief United States District Judge
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