1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Frances Anne Mehok Antti, No. CV-18-01555-PHX-JZB
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 16 Plaintiff Frances Anne Mehok Antti seeks review under 42 U.S.C. § 405(g) of the 17 final decision of the Commissioner of Social Security (“the Commissioner”), which denied 18 her disability insurance benefits and supplemental security income under sections 216(i), 19 223(d), and 1614(a)(3)(A) of the Social Security Act. Because the decision of the 20 Administrative Law Judge (“ALJ”) is not supported by substantial evidence and is based 21 on legal error, the Commissioner’s decision will be vacated and the matter remanded for 22 calculation of benefits. 23 I. Background. 24 On December 23, 2011, Plaintiff applied for disability insurance benefits and 25 supplemental security income, alleging disability beginning November 23, 2011. On 26 October 30, 2013, she appeared with her attorney and testified at a hearing before the ALJ. 27 A vocational expert also testified. On February 4, 2014, the ALJ issued a decision that 28 Plaintiff was not disabled within the meaning of the Social Security Act. The Appeals 1 Council denied Plaintiff’s request for review of the hearing decision, making the ALJ’s 2 decision the Commissioner’s final decision. Plaintiff filed an action for judicial review, 3 which remanded for further administrative proceedings. Mehok Antti v. Colvin, No. CV 15- 4 01607-PHX-DMF (D. Ariz. Dec. 22, 2016). (AR 791-812.) 5 Upon remand from the Social Security Administration Appeals Council, on 6 October 30, 2017, ALJ Schum issued a decision that Plaintiff was not disabled within the 7 meaning of the Social Security Act. 8 II. Legal Standard. 9 The district court reviews only those issues raised by the party challenging the ALJ’s 10 decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court may set 11 aside the Commissioner’s disability determination only if the determination is not 12 supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 13 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a preponderance, 14 and relevant evidence that a reasonable person might accept as adequate to support a 15 conclusion considering the record as a whole. Id. In determining whether substantial 16 evidence supports a decision, the court must consider the record as a whole and may not 17 affirm simply by isolating a “specific quantum of supporting evidence.” Id. As a general 18 rule, “[w]here the evidence is susceptible to more than one rational interpretation, one of 19 which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. 20 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted). 21 The ALJ is responsible for resolving conflicts in medical testimony, determining 22 credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 23 1995). In reviewing the ALJ’s reasoning, the court is “not deprived of [its] faculties for 24 drawing specific and legitimate inferences from the ALJ’s opinion.” Magallanes v. Bowen, 25 881 F.2d 747, 755 (9th Cir. 1989). 26 III. The ALJ’s Five-Step Evaluation Process. 27 To determine whether a claimant is disabled for purposes of the Social Security Act, 28 the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the 1 burden of proof on the first four steps, but at step five, the burden shifts to the 2 Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 3 At the first step, the ALJ determines whether the claimant is engaging in substantial 4 gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled and the 5 inquiry ends. Id. At step two, the ALJ determines whether the claimant has a “severe” 6 medically determinable physical or mental impairment. § 404.1520(a)(4)(ii). If not, the 7 claimant is not disabled and the inquiry ends. Id. At step three, the ALJ considers whether 8 the claimant’s impairment or combination of impairments meets or medically equals an 9 impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). 10 If so, the claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step 11 four. At step four, the ALJ assesses the claimant’s residual functional capacity (“RFC”) 12 and determines whether the claimant is still capable of performing past relevant work. § 13 404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. Id. If not, the 14 ALJ proceeds to the fifth and final step, where he determines whether the claimant can 15 perform any other work based on the claimant’s RFC, age, education, and work experience. 16 § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is disabled. 17 Id. 18 At step one, the ALJ found that Plaintiff meets the insured status requirements of 19 the Social Security Act through December 31, 2014, and that she has not engaged in 20 substantial gainful activity since November 23, 2011. At step two, the ALJ found that 21 Plaintiff has the following severe impairments: degenerative changes of the cervical and 22 lumbar spine, fibromyalgia, and depression. At step three, the ALJ determined that Plaintiff 23 does not have an impairment or combination of impairments that meets or medically equals 24 an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. At step four, the ALJ 25 found that Plaintiff has the RFC to perform: 26 light work (lifting and carrying 20 pounds occasionally and ten pounds frequently, sitting for six hours out of eight, and standing/walking for six 27 hours out of eight) as defined in 20 CFR 404.1567(b) except the claimant could occasionally climb ramps and stairs, but never climb ladders, ropes, or 28 scaffolds. Claimant could occasionally stoop, kneel, crouch, but could never crawl. Claimant could frequently reach overhead. Claimant should avoid 1 concentrated exposure to extreme cold, unprotected heights and moving mechanical machinery. Claimant could understand, remember, and carry out 2 simple instructions and tasks. 3 (AR 726.) 4 The ALJ further found that Plaintiff is unable to perform any of her past relevant 5 work. At step five, the ALJ concluded that, considering Plaintiff’s age, education, work 6 experience, and residual functional capacity, there are jobs that exist in significant numbers 7 in the national economy that Plaintiff could perform. 8 IV. Analysis. 9 Plaintiff argues the ALJ’s decision is defective for two reasons: (1) the ALJ erred 10 in rejecting Dr. Lawson’s assessments, and (2) the ALJ erred in rejecting Plaintiff’s 11 symptom testimony. (Doc. 19.) The Court will address each argument below. 12 A. Weighing of Medical Source Evidence. 13 Plaintiff argues that the ALJ improperly weighed the medical opinions of the 14 examining physician, Dr. David Lawson. 15 1. Legal Standard. 16 The Ninth Circuit distinguishes between the opinions of treating physicians, 17 examining physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821, 18 830 (9th Cir. 1995). Generally, an ALJ should give greatest weight to a treating physician’s 19 opinion and more weight to the opinion of an examining physician than to one of a non- 20 examining physician. See Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th Cir. 1995); see 21 also 20 C.F.R. § 404.1527(c)(2)-(6) (listing factors to be considered when evaluating 22 opinion evidence, including length of examining or treating relationship, frequency of 23 examination, consistency with the record, and support from objective evidence). If it is not 24 contradicted by another doctor’s opinion, the opinion of a treating or examining physician 25 can be rejected only for “clear and convincing” reasons. Lester, 81 F.3d at 830 (citing 26 Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). A contradicted opinion of a treating 27 or examining physician “can only be rejected for specific and legitimate reasons that are 28 supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citing Andrews, 1 53 F.3d at 1043). 2 An ALJ can meet the “specific and legitimate reasons” standard “by setting out a 3 detailed and thorough summary of the facts and conflicting clinical evidence, stating his 4 interpretation thereof, and making findings.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th 5 Cir. 2017) (quotations omitted). But “[t]he ALJ must do more than offer [her] conclusions. 6 [She] must set forth [her] own interpretations and explain why they, rather than the 7 doctors’, are correct.” Embrey, 849 F.2d at 421-22. The Commissioner is responsible for 8 determining whether a claimant meets the statutory definition of disability and does not 9 give significance to a statement by a medical source that the claimant is “disabled” or 10 “unable to work.” 20 C.F.R. § 416.927(d). 11 2. David Lawson, M.D. 12 Dr. David G. Lawson, M.D., has served as Plaintiff’s primary care physician since 13 2010, and continued to treat Plaintiff throughout the relevant period. (AR 505.) In June 14 2012, Dr. Lawson noted that Plaintiff had chronic pain and prescribed Fentanyl and 15 Oxycodone for pain control. (AR 542.) Dr. Lawson continued to prescribe pain medication 16 in July 2012 (AR 540-41), October 2012 (AR 539), November 2012 (AR 659), and 17 March 2013 (AR 655-58). Dr. Lawson treated Plaintiff for all of her conditions, including 18 anxiety, gastrointestinal issues, hypothyroidism, insomnia, fatigue, fibromyalgia, and 19 chronic back pain. (AR 1026-27 (August 2013), 1020-21 (March 2014), 1016-17 (July 20 2014), 1014-15 (January 2015), 1004-05 (July 2015 – increased Oxycodone), 998-99 21 (January 2016), 996-97 (March 2016), 992-93 (November 2016), 986-87 (April 2017).) 22 After performing an examination of Plaintiff on March 20, 2013, Dr. Lawson found 23 no physical findings supporting Plaintiff’s ailments. (AR 655-56.) Dr. Lawson noted that 24 Plaintiff “[t]olerated the discontinuation of both Maxide and Toprol XD well” and “feels 25 markedly improved.” (AR 655.) Dr. Lawson also determined that Plaintiff’s “Dizziness 26 [is] essentially resolved.” (AR 655.) 27 In September 2013, Dr. Lawson completed two forms providing opinion on 28 Plaintiff’s conditions: (1) a “Fibromyalgia Residual Functional Capacity (RFC) 1 Questionnaire” (AR 623-25); and (2) a “Medical Assessment of Ability to Do Work 2 Related Physical Activities” (AR 626-28). In the Fibromyalgia Questionnaire, Dr. Lawson 3 listed findings of multiple fibromyalgia tender points, nonrestorative sleep, severe fatigue, 4 depression, abdominal pain, cognitive impairment, morning stiffness, anxiety, low back 5 pain, and panic attacks. (AR 623.) Dr. Lawson opined that Plaintiff suffered from 6 moderately severe pain, which meant that “pain affects, but does not preclude ability to 7 function.” (AR 623-24.) Dr. Lawson further opined that the Plaintiff would not be able to 8 sustain work on a regular and continuing basis. (AR 625.) 9 In his Medical Assessment of Ability to Do Work Related Physical Activities, 10 Dr. Lawson found that Plaintiff suffered from osteoarthritis, fibromyalgia, plantar fasciitis, 11 and lumbar degenerative disc disease. (AR 626.) Dr. Lawson concluded that Plaintiff 12 could, in an 8-hour work day, sit for four hours, stand/walk for four hours, lift and carry 13 less than 10 pounds, and that Plaintiff could never climb, balance, stoop, kneel, or crawl, 14 (AR 626-27.) Dr. Lawson opined that Plaintiff must alternate between sitting and standing 15 due to her symptoms. (AR 626.) Dr. Lawson further opined that Plaintiff could only 16 occasionally handle and reach with the right hand, and could only occasionally handle, 17 perform fine manipulation, and reach with the left hand. (AR 626.) Dr. Lawson noted that 18 Plaintiff “has osteoarthritis back, hands, hips, knees” and “[a]lso has fibromyalgia and 19 plantar fasciitis.” (AR 628.) The ALJ afforded “no weight” to both of these assessments. 20 In June 2017, Dr. Lawson provided an updated assessment. (AR 1334.) Therein, Dr. 21 Lawson found that Plaintiff could occasionally lift or carry 10 pounds, could frequently lift 22 or carry less than 10 pounds, could stand or walk at least two hours in an eight-hour 23 workday, and could sit for four hours in an eight-hour workday. (AR 1334.) Dr. Lawson 24 noted that Plaintiff must change positions every 60 minutes and can only occasionally 25 handle and feel with her right hand. (AR 1335.) Additionally, Dr. Lawson stated that 26 Plaintiff “has gait instability as well as balance difficulty due to her multiple back issues” 27 and opined that Plaintiff has moderately severe pain that would frequently interfere with 28 attention and concentration and frequently cause deficiencies of concentration, persistence 1 or pace resulting in failure to complete tasks in a timely manner. (AR 1338.) The ALJ 2 assigned “no weight” to Dr. Lawson’s June 2017 assessment. 3 Dr. Lawson’s opinion is contradicted by the opinions of Dr. Christopher Maloney, 4 M.D. (AR 88-100). On April 30, 2012, Dr. Maloney reviewed Plaintiff’s medical 5 conditions and rendered a Residual Functional Capacity Assessment. (AR 96.) 6 Dr. Maloney found that Plaintiff had the following limitations: Plaintiff can occasionally 7 lift and/or carry 50 pounds, and frequently, 25 pounds (AR 96); Plaintiff can sit, stand 8 and/or walk for up to 6 hours per day (AR 96); Plaintiff can frequently climb ladders, ropes, 9 and scaffolds as well as crouch with no other limitations (AR 96). The ALJ also assigned 10 “no weight” to this state agency physician opinion. 11 Dr. Maloney opined Plaintiff had greater abilities than those identified in 12 Dr. Lawson’s opinion. Accordingly, the ALJ could discount Dr. Lawson’s opinion for 13 specific and legitimate reasons supported by substantial evidence. Lester, 81 F.3d 14 at 830-31. The ALJ provides five reasons for assigning no weight to Dr. Lawson’s opinion: 15 (1) Dr. Lawson “never documented any of his examination results or neurological, 16 musculoskeletal, or psychiatric findings” in his treatment notes; (2) “Dr. Lawsons’s 17 opinion is also not supported by [Plaintiff’s] own reports” and Plaintiff had “only two visits 18 in 2013, which suggest [Plaintiff’s] pain symptoms were controlled with medication”; (3) 19 Dr. Lawson “does not provide a description of [Plaintiff’s] pain level, yet he finds she 20 experiences moderate pain symptoms”; (4) Dr. Lawson’s opinion is not consistent with 21 Plaintiff’s daily activities; and (5) Dr. Lawson’s opinion is outside of his area of specialty. 22 (AR 730-31.) 23 a. Unsupported by Treatment Notes. 24 The ALJ’s first reason for discounting Dr. Lawson’s opinion is that it is unsupported 25 by Dr. Lawson’s treatment notes because those notes contain no substantial reports of 26 examinations or findings. (AR 730.) Specifically, the ALJ “assigns no weight to Dr. 27 Lawson’s assessments dated September 27, 2013. . . . [because] the record shows that Dr. 28 Lawson’s cursory exams were mostly within normal limits.” (AR 730.) Additionally, 1 Plaintiff had a “full range of motion in the neck, soft nontender, nondistended 2 abdomen[,] . . . no clubbing, cyanosis or edema in the extremities, nonfocal, motor 3 strength, normal upper and lower extremities and intact sensory exam.” (AR 730 (citing 4 AR 1016, 1018, 1020, 1022).) Furthermore, the ALJ states that there were “no physical 5 examination findings that documented limitations, nor did Dr. Lawson note that [Plaintiff] 6 complained of hand or finger limitations.” (AR 730.) 7 “An ALJ may discredit treating physicians’ opinions that are conclusory, brief, and 8 unsupported by the record as a whole,[] or by objective medical findings[.]” Batson v. 9 Comm’r of Soc. Sec., 359 F.3d 1190, 1195 (9th Cir. 2004). “A conflict between treatment 10 notes and a treating provider’s opinions may constitute an adequate reason to discredit the 11 opinions of a treating physician or another treating provider.” Ghanim v. Colvin, 763 F.3d 12 1154, 1161 (9th Cir. 2014) (citing Molina, 674 F.3d at 1111-12; Valentine v. Comm'r of 13 Soc. Sec. Admin., 574 F.3d 685, 692-93 (9th Cir. 2009) (holding that a conflict with 14 treatment notes is a specific and legitimate reason to reject treating physician’s opinion)). 15 But “a physician, unlike an ALJ, is not required to provide specific citation for each 16 opinion, particularly those supported by the record as a whole.” Sahlberg v. Commr. Of 17 Soc. Sec., 2017 WL 1130365, at *3 (D. Ariz. Mar. 27, 2017) (citing Orn, 495 F.3d at 634 18 (“The primary function of medical records is to promote communication and recordkeeping 19 for health care personnel—not to provide evidence for disability determinations. We 20 therefore do not require that a medical condition be mentioned in every report to conclude 21 that a physician’s opinion is supported by the record.”)). In the case of fibromyalgia, the 22 condition is diagnosed “entirely on the basis of patients’ report of pain and other symptoms. 23 Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). (“There are no laboratory tests to 24 confirm the diagnosis.”). 25 Here, the ALJ ignores findings in Dr. Lawson’s notes that support the assessed 26 limitations. (See, e.g., AR 655 (finding Plaintiff suffers from “chronic pain disease”); 657 27 (same).) What is more, to the extent the ALJ notes that Dr. Lawson’s notes contain 28 “normal” findings, the ALJ fails to explain how those findings conflict with Dr. Lawson’s 1 opined limitations. See Embrey, 849 F.2d at 421-22 (“The ALJ must do more than offer his 2 conclusions. He must set forth his own interpretations and explain why they, rather than 3 the doctors’, are correct.”). Because the ALJ fails to account for supportive findings in 4 Dr. Lawson’s treatment notes, and the ALJ fails to explain how normal findings in 5 Dr. Lawson’s treatment notes conflict with the assessed limitations, the Court finds that 6 the ALJ’s first reason for discounting Dr. Lawson’s medical opinion is not specific and 7 legitimate. 8 b. Plaintiff’s Own Reports and Daily Activities. 9 The ALJ’s second reason for discounting Dr. Lawson’s opinion is that it is 10 inconsistent with Plaintiff’s own reports of improvement with treatment and with her daily 11 activities. (AR 730-31). Specifically, the ALJ notes that Plaintiff reports that “she could 12 manage activities of personal care, albeit with difficulty. . . could shop by phone or 13 computer, could manage personal finances, could grocery shop” and “[t]he claimant 14 reported that even on her ‘low’ days she could do her craft work.” (AR 730 (citing Exs. 15 B4E; B48F/29).) 16 While an ALJ may consider the inconsistency between a physician’s opinion and a 17 claimant’s daily activities as a specific and legitimate reason for discounting that 18 physician’s opinion, see Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602 19 (9th Cir. 1999), the analysis presented by the ALJ in this instance is insufficient to do so. 20 Nothing in Plaintiff’s description of her daily activities is inherently inconsistent with 21 Dr. Lawson’s medical opinion. See Smolen, 80 F.3d at 1287 n.7 (“The Social Security Act 22 does not require that claimants be utterly incapacitated to be eligible for benefits, and many 23 home activities may not be easily transferable to a work environment where it might be 24 impossible to rest periodically or take medication.”). 25 Without further explanation from the ALJ as to how Plaintiff’s daily activities are 26 inconsistent with Dr. Lawson’s medical opinion, the Court finds the ALJ’s second reason 27 for discounting that opinion is insufficient. 28 c. No Evidence of Pain by Dr. Lawson. 1 The ALJ’s third reason for discounting Dr. Lawson’s opinion is that Dr. Lawson 2 never assessed Plaintiff’s pain until marking “moderate” on the Fibromyalgia 3 Questionnaire. (AR 623-24, 731.) Specifically, the ALJ observes that there are “no notes” 4 in any of Plaintiff’s visits to Dr. Lawson that indicate the levels of pain Plaintiff felt. 5 (AR 730) 6 The ALJ is mistaken and misrepresents the record. Dr. Lawson’s notes clearly 7 assess Plaintiff with “chronic pain syndrome.” (AR 655, 657.) Furthermore, the record is 8 replete with notes that show Dr. Lawson prescribed pain medication for Plaintiff’s 9 symptoms on a regular basis (see, e.g., AR 540-41; 539; 659; 655-58; 1026-27; 1020-21; 10 1016-17; 1014-15; 998-99; 996-97; 992-93; 986-87), and even that the dosage of pain 11 medication was required to be increased on one occasion because the current medication 12 level was insufficient (AR 1004-05 (July 2015)). The record clearly demonstrates that 13 Dr. Lawson had evaluated and treated Plaintiff’s chronic before completing the 14 Fibromyalgia Questionnaire, and thus did not improperly assess the level of Plaintiff’s 15 pain. (Id.) Accordingly, the Court finds that the ALJ’s third reason for discounting 16 Dr. Lawson’s opinion is not legitimate and is rejected. 17 d. Daily Activities. 18 The ALJ’s fourth reason for discounting Dr. Lawson’s medical opinion is that it is 19 inconsistent with Plaintiff’s daily activities. (AR 731.) Specifically, the ALJ determines 20 that Plaintiff’s crafting and painting is not consistent with the Plaintiff’s pain symptoms. 21 (AR 731.) 22 An ALJ may reject a claimant’s symptom testimony if it is inconsistent with the 23 claimant’s daily activities. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). But 24 “ALJs must be especially cautious in concluding that daily activities are inconsistent with 25 testimony about pain, because impairments that would unquestionably preclude work and 26 all the pressures of a workplace environment will often be consistent with doing more than 27 merely resting in bed all day.” Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014). 28 Thus, an ALJ may use a claimant’s daily activities to discredit symptom testimony only if 1 the claimant “spend[s] a substantial part of [her] day engaged in pursuits involving the 2 performance of physical functions that are transferable to a work setting.” Orn, 495 F.3d 3 at 639 (emphasis added); Reddick, 157 F.3d at 722 (“Only if the level of activity were 4 inconsistent with Claimant’s claimed limitations would these activities have any bearing 5 on Claimant’s credibility.”). 6 The Court finds that the ALJ’s fourth reason for discounting Dr. Lawson’s medical 7 opinion is not specific and legitimate. To be sure, Plaintiff admits that even “on her low 8 days,” she can “do her craft work.” (AR 1410.) And according to a Third-Party Function 9 Report completed by Plaintiff’s significant other in March 2012, Plaintiff’s hobbies include 10 “crocheting, arts and crafts, [and] watching TV.” (AR 227.) But nothing in Dr. Lawson’s 11 medical opinion contradicts Plaintiff’s reported ability to complete crafts. (See AR 730, 12 1016, 1018, 1020, 1022.) And no other daily activities reported by Plaintiff conflict with 13 Dr. Lawson’s medical assessments. (See AR 728 (stating Plaintiff can manage personal 14 care, occasionally shop online, and grocery shop).) Accordingly, the Court finds that the 15 ALJ’s fourth reason for discounting Dr. Lawson’s opinion is not specific and legitimate 16 and will be rejected. 17 e. Area of Specialty. 18 The ALJ’s final reason for discounting Dr. Lawson’s medical opinion is that Dr. 19 Lawson is a general practitioner and not a specialist in the fields he diagnoses. 20 The medical opinion of a specialist is given more weight about medical issues in 21 that specialist’s area of specialty than the medical opinion of a source that is not a specialist. 22 20 C.F.R. § 404.1527(c)(5). “[T]he regulations give more weight to opinions that are 23 explained than to those that are not, and to the opinions of specialists concerning matters 24 relating to their specialty over that of non-specialists.” Holohan v. Massanari, 246 F.3d 25 1195, 1202 (9th Cir. 2001) (citation omitted). Here, the ALJ fails to identify which portions 26 of Dr. Lawson’s opinion should be discounted because of his specialty area. Because the 27 ALJ fails to specify what portion of the opinion is discounted, the Court rejects the ALJ’s 28 fifth reason for discounting Dr. Lawson’s opinion. 1 f. Summary. 2 Because the ALJ fails to provide specific and legitimate reasons for discounting Dr. 3 Lawson’s medical opinion, the Court finds the ALJ committed error in doing so. 4 B. The ALJ Erred in Evaluating Plaintiff’s Credibility. 5 In evaluating the credibility of a claimant’s testimony regarding subjective pain or 6 other symptoms, the ALJ is required to engage in a two-step analysis: (1) determine 7 whether the claimant presented objective medical evidence of an impairment that could 8 reasonably be expected to produce some degree of the pain or other symptoms alleged; 9 and, if so with no evidence of malingering, (2) reject the claimant’s testimony about the 10 severity of the symptoms only by giving specific, clear, and convincing reasons for the 11 rejection. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 12 First, the ALJ found that Plaintiff’s medically determinable impairments could 13 reasonably be expected to cause the alleged symptoms. Second, the ALJ found Plaintiff’s 14 statements regarding the intensity, persistence, and limiting effects of the symptoms not 15 credible to the extent they are inconsistent with the ALJ’s residual functional capacity 16 assessment. In other words, the ALJ found Plaintiff’s statements not credible to the extent 17 she claims she is unable to perform in a competitive work environment. 18 1. Plaintiff’s Symptom Testimony. 19 At the hearings, Plaintiff testified to the following facts. (AR 904-921, 1472-88.) 20 Plaintiff last worked as a customer service manager, and before that a video clerk, prior to 21 her disability onset in November of 2011. (AR 908.) Plaintiff’s employer fired Plaintiff 22 July 9, 2009, but she was unsure of the reasons for her firing. (AR 908.) Plaintiff did not 23 testify whether she sought employment after her termination. Plaintiff does not believe she 24 is able to work because she has fibromyalgia and “sitting is not pleasant,” her hips are 25 degenerative, she sits in bed “75 percent of the time,” and if she does not take her 26 medication in the morning, she does not walk. (AR 909.) Plaintiff takes prescribed 27 medication for her pain, which helps her get out of bed in the morning. (AR 910.) Plaintiff 28 cannot lift her head off of the pillow without pulling “with her hair.” (AR 1478.) 1 Plaintiff asserts that she must alternate between sitting and standing throughout the 2 day because of her pain. (AR 916.) Plaintiff spends the majority of her day “sitting in bed,” 3 usually in a reclined position. (AR 916-17.) Plaintiff must nap three to four times a week 4 because of daytime fatigue or sleepiness. (AR 917.) Plaintiff is unable to perform her 5 previous job because she “can’t remember what [she] said two seconds ago.” (AR 920.) 6 Plaintiff also suffers from anxiety and depression, which causes her to shake. (AR 920.) 7 Plaintiff lives with her husband and her husband’s son, daughter, and ex-wife. 8 (AR 906.) Around the house, Plaintiff performs no chores. (AR 913-14.) Plaintiff eats 9 every two hours or so due to her diabetes, and her meals consist of “crackers and cheese, 10 fruits, fresh fruits,” toast, and juice. (AR 911-12.) Plaintiff watches TV throughout the day. 11 (AR 912.) Plaintiff admits she drives, but she cannot drive if she has taken her pain 12 medication. (AR 920.) 13 2. ALJ’s Reasons for Discounting Plaintiff Testimony. 14 The ALJ provides three reasons for discounting Plaintiff’s symptom testimony as 15 not fully credible: (1) “[Plaintiff] described daily activities are not limited to the extent one 16 would expect, given her complaint of severe pain and subjective limitation”; 17 (2) “[t]reatment modalities have been conservative and consisted of pain medication”; and 18 (3) Plaintiff’s objective medical tests support the finding of a “light exertion level and the 19 climbing, stooping, kneeling, crouching, crawling, and reaching limitations found 20 [t]herein.” (AR 728-29.) The Court will address each reason provided. 21 a. Daily Activities. 22 The ALJ’s first reason for discounting Plaintiff’s symptom testimony is that 23 Plaintiff’s described “daily activities are not limited to the extent one would expect, given 24 her complaint of severe pain and subjective limitation.” (AR 728.) 25 An ALJ may reject a claimant’s symptom testimony if it is inconsistent with the 26 claimant’s daily activities. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). But 27 “ALJs must be especially cautious in concluding that daily activities are inconsistent with 28 testimony” about subjective symptoms, like pain or fatigue, “because impairments that 1 would unquestionably preclude work and all the pressures of a workplace environment will 2 often be consistent with doing more than merely resting in bed all day.” Garrison, 759 F.3d 3 at 1016. Thus, an ALJ may use a claimant’s daily activities to discredit symptom testimony 4 only if the claimant “spend[s] a substantial part of his day engaged in pursuits involving 5 the performance of physical functions that are transferable to a work setting.” Orn, 495 6 F.3d at 639 (emphasis added); Reddick, 157 F.3d at 722 (“Only if the level of activity were 7 inconsistent with Claimant’s claimed limitations would these activities have any bearing 8 on Claimant’s credibility.”). 9 Here, the ALJ fails to show how Plaintiff’s daily activities are inconsistent with her 10 subjective testimony. Specifically, the ALJ states that Plaintiff’s testimony that she could 11 “manage activities of personal care, albeit with some difficulty,” “could shop by phone or 12 computer, could manage personal finances, could grocery shop,” and “even on her ‘low’ 13 days[,] she could do her craft work.” (AR 728.) However, the ALJ simply states these 14 activities are “not limited to the extent one would expect, given [Plaintiff’s] complaints of 15 severe pain and subjective limitation.” (AR 728.) The ALJ provides no explanation as to 16 how Plaintiff’s reported daily activities are inconsistent with her symptom testimony, or in 17 what way Plaintiff’s daily activities demonstrate physical functions that are transferrable 18 to a work setting. See Orn, 495 F.3d at 639; Reddick, 157 F.3d at 722. Accordingly, the 19 Court finds the ALJ’s first reason for discounting Plaintiff’s subjective testimony is not 20 clear and convincing and must be rejected. 21 b. Conservative Treatment. 22 The ALJ’s second reason for finding Plaintiff’s symptom testimony not fully 23 credible is that Plaintiff received only conservative treatment. (AR 728.) An ALJ may 24 discredit a Plaintiff’s subjective pain testimony if the record reflects that the Plaintiff 25 responds favorably to minimal, conservative treatment. Tommasetti v. Astrue, 533 F.3d 26 135, 1040 (9th Cir. 2008) (finding plaintiff not credible because he responded favorably to 27 “the use of anti-inflammatory medication, transcutaneous electrical nerve stimulation unit, 28 and a lumbosacral corset”). 1 Here, the ALJ concludes that Plaintiff’s treatment was “conservative” by noting that 2 “[Plainiff] has not generally received the level of medical treatment one would expect for 3 a disabled individual.” (AR 728.) However, “no medical opinion in this record 4 characterizes the treatment of Plaintiff’s [impairments] as ‘conservative,’ nor does 5 substantial evidence support that conclusion.” Schultz v. Covin, 32 F. Supp. 3d 1047 (N.D. 6 Cal. 2014). In reality, the record indicates Plaintiff was taking Oxycodone and fentanyl 7 patches to relieve her pain. (AR 918.) The ALJ fails to explain how the use of powerful 8 pain medication constitutes routine or conservative treatment. What is more, the ALJ did 9 not explain why he considered this treatment to be conservative or what more aggressive 10 treatment would be expected for someone with Plaintiff’s impairments. Accordingly, the 11 Court finds this is not a clear and convincing reason because the ALJ provided no 12 explanation to allow the Court to meaningfully evaluate it. See Brown-Hunter, 806 F.3d at 13 495 (“Although the ALJ’s analysis need not be extensive, the ALJ must provide some 14 reasoning in order for us to meaningfully determine whether the ALJ’s conclusions were 15 supported by substantial evidence.”). 16 c. Objective Medical Testing. 17 The ALJ’s final reason for discounting Plaintiff’s subjective symptom testimony is 18 that it is not consistent with the objective medical findings in the record. (AR 728.) A 19 plaintiff need not produce “objective medical evidence of the pain or fatigue itself, or the 20 severity thereof.” Garrison, 859 F.3d at 1014 (quoting Smolen v. Chater, 80 F.3d 1273, 21 1282 (9th Cir. 1996). However, insufficient objective medical evidence may discredit a 22 plaintiff when combined with other relevant factors. Joly v. Astrue, 357 F. App’x. 937, 939 23 (9th Cir. 2009) (finding that the ALJ gave specific and legitimate reasons for discrediting 24 a plaintiff where “there was insufficient objective medical evidence to support her 25 allegations of pain, and her daily living activities were consistent with a capacity for light 26 to medium exertion”) (emphasis added). 27 Here, the ALJ fails to identify clear and convincing reasons for discrediting 28 Plaintiff’s subjective testimony. The ALJ notes that Plaintiff suffers from limited range of 1 motion and “pain and tenderness to palpitations in major muscle groups throughout the 2 entire body.” (AR 728.) The only discrepancy the ALJ identifies is Plaintiff’s testimony 3 regarding the manner in which she lifts her head from her pillow (AR 279) and the finding 4 of no objective muscle weakness (AR 728). Absent any other evidence of inconsistencies 5 with the medical record, the Court finds this isolated “discrepancy” to be insufficient to 6 discount the entirety of Plaintiff’s symptom testimony. To be sure, the ALJ’s citation to 7 isolated comments by Plaintiff without considering the record as a whole amounts to 8 “improper cherry-pick[ing].” Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014); see 9 also Diedrich v. Berryhill, 874 F.3d 634, 642 (9th Cir. 2017). 10 Accordingly, the Court finds that the ALJ’s third reason for discounting Plaintiff’s 11 symptom testimony is not clear and convincing and must be rejected. 12 F. Remand. 13 Where an ALJ fails to provide adequate reasons for rejecting the opinion of a 14 physician, the Court must credit that opinion as true. Lester, 81 F.3d at 834. An action 15 should be remanded for an immediate award of benefits when the following three factors 16 are satisfied: (1) the record has been fully developed and further administrative proceedings 17 would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons 18 for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the 19 improperly discredited evidence were credited as true, the ALJ would be required to find 20 the claimant disabled on remand. Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) 21 (citing Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1202 (9th Cir. 2008), Lingenfelter v. 22 Astrue, 504 F.3d 1028, 1041 (9th Cir. 2007), Orn, 495 F.3d at 640, Benecke, 379 F.3d at 23 595, and Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996)). There is “flexibility” 24 which allows “courts to remand for further proceedings when, even though all conditions 25 of the credit-as-true rule are satisfied, an evaluation of the record as a whole creates serious 26 doubt that a claimant is, in fact, disabled.” Garrison, 759 F.3d at 1020. 27 In this instance, the first, second, and third factors are clearly satisfied. The record 28 is substantial, the Court has found that the ALJ failed to provide legally sufficient reasons 1|| for rejecting Plaintiff's symptom testimony, and a vocational expert testified that Plaintiff 2|| would be, in fact, disabled if Dr. Lawson’s opinion were credited as true. 3 Furthermore, the Court has no serious doubt that the Plaintiff is, in fact, disabled. 4|| Plaintiff does have multiple objective indicators of some impairments, such as degenerative 5 || findings in her sacroiliac joints, right shoulder atrophy, and degenerative changes of the 6|| lower back. (AR 664-65, 1038.) The ALJ fails to provide a legitimate reason for || discounting the treating physician’s opinion or Plaintiff’s testimony, and the Court cannot 8 || find one within the record. Accordingly, the Court will remand this case for the immediate 9|| calculation of benefits. 10 IT IS ORDERED that the final decision of the Commissioner of Social Security is || vacated and this case is remanded for the immediate calculation of benefits. 12 Dated this 24th day of September, 2019. 13
15 Dolton States Nlavistote Judge 16 17 18 19 20 21 22 23 24 25 26 27 28
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