1 2 3 4 5 UNITED STATES DISTRICT COURT AT SEATTLE 7 CYNTHIA M., 8 Plaintiff, Case No. C20-5104 RAJ 9 v. ORDER REVERSING THE 10 COMMISSIONER’S FINAL SECURITY, FOR FURTHER ADMINISTRATIVE 12 Defendant. PROCEEDINGS 13 Plaintiff appeals denial of her applications for Supplemental Security Income and 14 Disability Insurance Benefits. Plaintiff contends the ALJ erred by discounting her 15 testimony and three treating providers’ medical opinions. Dkt. 9. As discussed below, 16 the Court REVERSES the Commissioner’s final decision and REMANDS the matter for 17 further administrative proceedings under sentence four of 42 U.S.C. § 405(g). 18 20 Plaintiff is 49 years old, has a high school education, and has worked as a stock 21 clerk and night auditor. Dkt. 7, Admin. Transcript (Tr.) 28, 49, 51. Plaintiff alleges 22 disability as of June 17, 2015. Tr. 15. After conducting a hearing in October 2018, the 23 ORDER REVERSING THE 1 ALJ issued a decision finding Plaintiff not disabled. Tr. 35-130, 15-29. The ALJ found 2 Plaintiff had severe impairments including fibromyalgia, several spinal impairments, 3 anxiety disorder, major depressive disorder, and posttraumatic stress disorder. Tr. 17. 4 The ALJ concluded Plaintiff could perform simple, routine work at the light exertional 5 level, occasionally interacting with coworkers and the public. Tr. 20. 6 DISCUSSION 7 This Court may set aside the Commissioner’s denial of Social Security benefits 8 only if the ALJ’s decision is based on legal error or not supported by substantial evidence 9 in the record as a whole. Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). 10 A. Plaintiff’s Testimony 11 Where, as here, an ALJ determines a claimant has presented objective medical 12 13 evidence establishing underlying impairments that could cause the symptoms alleged, 14 and there is no affirmative evidence of malingering, the ALJ can only discount the 15 claimant’s testimony as to symptom severity by providing “specific, clear, and 16 convincing” reasons supported by substantial evidence. Trevizo, 871 F.3d at 678. 17 1. Physical Symptoms 18 The ALJ discounted Plaintiff’s physical symptom testimony based on lack of 19 supporting medical evidence, lack of specialized treatment, improvement with treatment, 20 and conflict with her activities. Tr. 24-25. “[L]ack of medical evidence cannot form the 21 sole basis for discounting pain testimony….” Burch v. Barnhart, 400 F.3d 676, 681 (9th 22 Cir. 2005). 23 ORDER REVERSING THE 1 a. Lack of Treatment 2 The ALJ found Plaintiff was not undergoing treatment from a specialist, such as a 3 rheumatologist, for her fibromyalgia. Tr. 25. An “unexplained, or inadequately 4 explained, failure to seek treatment or follow a prescribed course of treatment” can 5 constitute a sufficient reason for discrediting a claimant’s symptom testimony. Fair v. 6 Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Here, however, Plaintiff did seek treatment 7 for her fibromyalgia and there is no indication she did not follow prescribed treatment. 8 See, e.g., Tr. 959 (follow up for fibromyalgia), 962 (confirming Plaintiff was diagnosed 9 and treated for fibromyalgia). The record indicates a rheumatologist confirmed the 10 fibromyalgia diagnosis, and ALJ identified no evidence in the record showing Plaintiff 11 needed to continue treatment with a rheumatologist or other specialist. See Tr. 73-74. 12 13 Lack of specialized treatment was not a clear and convincing reason to discount 14 Plaintiff’s testimony. 15 b. Improvement with Treatment 16 “[E]vidence of medical treatment successfully relieving symptoms can undermine 17 a claim of disability.” Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017). 18 However, evidence of “some improvement does not mean that the person’s impairments 19 no longer seriously affect her ability to function in a workplace.” Holohan v. Massanari, 20 246 F.3d 1195, 1205 (9th Cir. 2001). 21 Here, despite some improvement from physical therapy and medication, neither 22 the ALJ nor the Commissioner cites evidence of such improvement that Plaintiff’s 23 ORDER REVERSING THE 1 symptoms were successfully relieved or that her testimony was contradicted. Plaintiff 2 benefited from physical therapy but continued to experience extremely limiting 3 symptoms. See Tr. 1050 (improved, but still reporting frequent upper extremity 4 numbness), 1052 (“continual numbness and tingling into bilateral” upper extremities), 5 1054 (therapy “beneficial” but still experiencing neck flare-ups), 1056 (continuing to 6 have “minor” flare-ups), 1058 (still having flare-ups but “less aggressive and fewer”), 7 1060 (“still needs frequent days of complete rest to bounce back” after activity), 1062 8 (“variable improvement”). At the last visit in the record Plaintiff reported increased 9 symptoms and pain preventing her from following the home exercise program. Tr. 1064. 10 Plaintiff testified her medication “lessens” the pain, otherwise she “couldn’t really 11 12 move.” Tr. 72. Yet she continues to have several days a week where she can do little 13 other than lie on a couch. Tr. 100. 14 Improvement with treatment was not a clear and convincing reason to discount 15 Plaintiff’s testimony. 16 c. Activities 17 The ALJ did not cite any activities that contradicted Plaintiff’s testimony or met 18 the threshold for transferable work skills. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 19 2007). “Only if the level of activity were inconsistent with Claimant’s claimed 20 limitations would these activities have any bearing on Claimant’s credibility.” Reddick v. 21 Chater, 157 F.3d 715, 722 (9th Cir.1998). The ALJ cited caring for her son, who was 22 seven years old at the time of the hearing. Tr. 25, 82. Plaintiff testified she taught her 23 ORDER REVERSING THE 1 son to do many things, such as prepare food for himself, including using the oven with 2 monitoring or using the microwave, so his basic needs can be met when she has a “bad 3 day.” Tr. 88-89. Her son is in school all year and his school bus provides “door-to-door” 4 pickup, so Plaintiff does not need to bring him to school or even to a bus stop. Tr. 85, 5 100. The ALJ also cited doing household chores such as laundry, but Plaintiff testified it 6 causes a fibromyalgia flare-up, necessitating lying down for about a day. Tr. 112. 7 Conflict with activities was not a clear and convincing reason to discount Plaintiff’s 8 testimony. 9 The Court concludes the ALJ erred by discounting Plaintiff’s physical symptom 10 testimony. 11 12 2. Mental Symptoms 13 The ALJ discounted Plaintiff’s mental symptom testimony based on inconsistency 14 with medical evidence, lack of treatment, improvement with treatment, and inconsistency 15 with her activities. Tr. 24-25. 16 a. Inconsistency with Medical Evidence 17 The ALJ found Plaintiff’s testimony inconsistent with a treatment note indicating 18 Plaintiff was “negative for depression.” Tr. 25. However, the same treatment note shows 19 anxiety, consistent with Plaintiff’s testimony of anxiety. Tr. 998, 113. Most records the 20 ALJ cited as showing normal mood and affect report high levels of anxiety. Tr. 1078, 21 1079, 1080, 1084.
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1 2 3 4 5 UNITED STATES DISTRICT COURT AT SEATTLE 7 CYNTHIA M., 8 Plaintiff, Case No. C20-5104 RAJ 9 v. ORDER REVERSING THE 10 COMMISSIONER’S FINAL SECURITY, FOR FURTHER ADMINISTRATIVE 12 Defendant. PROCEEDINGS 13 Plaintiff appeals denial of her applications for Supplemental Security Income and 14 Disability Insurance Benefits. Plaintiff contends the ALJ erred by discounting her 15 testimony and three treating providers’ medical opinions. Dkt. 9. As discussed below, 16 the Court REVERSES the Commissioner’s final decision and REMANDS the matter for 17 further administrative proceedings under sentence four of 42 U.S.C. § 405(g). 18 20 Plaintiff is 49 years old, has a high school education, and has worked as a stock 21 clerk and night auditor. Dkt. 7, Admin. Transcript (Tr.) 28, 49, 51. Plaintiff alleges 22 disability as of June 17, 2015. Tr. 15. After conducting a hearing in October 2018, the 23 ORDER REVERSING THE 1 ALJ issued a decision finding Plaintiff not disabled. Tr. 35-130, 15-29. The ALJ found 2 Plaintiff had severe impairments including fibromyalgia, several spinal impairments, 3 anxiety disorder, major depressive disorder, and posttraumatic stress disorder. Tr. 17. 4 The ALJ concluded Plaintiff could perform simple, routine work at the light exertional 5 level, occasionally interacting with coworkers and the public. Tr. 20. 6 DISCUSSION 7 This Court may set aside the Commissioner’s denial of Social Security benefits 8 only if the ALJ’s decision is based on legal error or not supported by substantial evidence 9 in the record as a whole. Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). 10 A. Plaintiff’s Testimony 11 Where, as here, an ALJ determines a claimant has presented objective medical 12 13 evidence establishing underlying impairments that could cause the symptoms alleged, 14 and there is no affirmative evidence of malingering, the ALJ can only discount the 15 claimant’s testimony as to symptom severity by providing “specific, clear, and 16 convincing” reasons supported by substantial evidence. Trevizo, 871 F.3d at 678. 17 1. Physical Symptoms 18 The ALJ discounted Plaintiff’s physical symptom testimony based on lack of 19 supporting medical evidence, lack of specialized treatment, improvement with treatment, 20 and conflict with her activities. Tr. 24-25. “[L]ack of medical evidence cannot form the 21 sole basis for discounting pain testimony….” Burch v. Barnhart, 400 F.3d 676, 681 (9th 22 Cir. 2005). 23 ORDER REVERSING THE 1 a. Lack of Treatment 2 The ALJ found Plaintiff was not undergoing treatment from a specialist, such as a 3 rheumatologist, for her fibromyalgia. Tr. 25. An “unexplained, or inadequately 4 explained, failure to seek treatment or follow a prescribed course of treatment” can 5 constitute a sufficient reason for discrediting a claimant’s symptom testimony. Fair v. 6 Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Here, however, Plaintiff did seek treatment 7 for her fibromyalgia and there is no indication she did not follow prescribed treatment. 8 See, e.g., Tr. 959 (follow up for fibromyalgia), 962 (confirming Plaintiff was diagnosed 9 and treated for fibromyalgia). The record indicates a rheumatologist confirmed the 10 fibromyalgia diagnosis, and ALJ identified no evidence in the record showing Plaintiff 11 needed to continue treatment with a rheumatologist or other specialist. See Tr. 73-74. 12 13 Lack of specialized treatment was not a clear and convincing reason to discount 14 Plaintiff’s testimony. 15 b. Improvement with Treatment 16 “[E]vidence of medical treatment successfully relieving symptoms can undermine 17 a claim of disability.” Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017). 18 However, evidence of “some improvement does not mean that the person’s impairments 19 no longer seriously affect her ability to function in a workplace.” Holohan v. Massanari, 20 246 F.3d 1195, 1205 (9th Cir. 2001). 21 Here, despite some improvement from physical therapy and medication, neither 22 the ALJ nor the Commissioner cites evidence of such improvement that Plaintiff’s 23 ORDER REVERSING THE 1 symptoms were successfully relieved or that her testimony was contradicted. Plaintiff 2 benefited from physical therapy but continued to experience extremely limiting 3 symptoms. See Tr. 1050 (improved, but still reporting frequent upper extremity 4 numbness), 1052 (“continual numbness and tingling into bilateral” upper extremities), 5 1054 (therapy “beneficial” but still experiencing neck flare-ups), 1056 (continuing to 6 have “minor” flare-ups), 1058 (still having flare-ups but “less aggressive and fewer”), 7 1060 (“still needs frequent days of complete rest to bounce back” after activity), 1062 8 (“variable improvement”). At the last visit in the record Plaintiff reported increased 9 symptoms and pain preventing her from following the home exercise program. Tr. 1064. 10 Plaintiff testified her medication “lessens” the pain, otherwise she “couldn’t really 11 12 move.” Tr. 72. Yet she continues to have several days a week where she can do little 13 other than lie on a couch. Tr. 100. 14 Improvement with treatment was not a clear and convincing reason to discount 15 Plaintiff’s testimony. 16 c. Activities 17 The ALJ did not cite any activities that contradicted Plaintiff’s testimony or met 18 the threshold for transferable work skills. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 19 2007). “Only if the level of activity were inconsistent with Claimant’s claimed 20 limitations would these activities have any bearing on Claimant’s credibility.” Reddick v. 21 Chater, 157 F.3d 715, 722 (9th Cir.1998). The ALJ cited caring for her son, who was 22 seven years old at the time of the hearing. Tr. 25, 82. Plaintiff testified she taught her 23 ORDER REVERSING THE 1 son to do many things, such as prepare food for himself, including using the oven with 2 monitoring or using the microwave, so his basic needs can be met when she has a “bad 3 day.” Tr. 88-89. Her son is in school all year and his school bus provides “door-to-door” 4 pickup, so Plaintiff does not need to bring him to school or even to a bus stop. Tr. 85, 5 100. The ALJ also cited doing household chores such as laundry, but Plaintiff testified it 6 causes a fibromyalgia flare-up, necessitating lying down for about a day. Tr. 112. 7 Conflict with activities was not a clear and convincing reason to discount Plaintiff’s 8 testimony. 9 The Court concludes the ALJ erred by discounting Plaintiff’s physical symptom 10 testimony. 11 12 2. Mental Symptoms 13 The ALJ discounted Plaintiff’s mental symptom testimony based on inconsistency 14 with medical evidence, lack of treatment, improvement with treatment, and inconsistency 15 with her activities. Tr. 24-25. 16 a. Inconsistency with Medical Evidence 17 The ALJ found Plaintiff’s testimony inconsistent with a treatment note indicating 18 Plaintiff was “negative for depression.” Tr. 25. However, the same treatment note shows 19 anxiety, consistent with Plaintiff’s testimony of anxiety. Tr. 998, 113. Most records the 20 ALJ cited as showing normal mood and affect report high levels of anxiety. Tr. 1078, 21 1079, 1080, 1084. Only one record, for a gynecological appointment, reports only 22 normal mood and affect. Tr. 924. This single note, from an appointment not focused on 23 ORDER REVERSING THE 1 mental health, does not constitute a clear and convincing reason to discount Plaintiff’s 2 testimony. 3 b. Lack of Treatment 4 The ALJ found Plaintiff had “minimal counseling,” despite stating at the hearing 5 Plaintiff “did have some extensive counseling.” Tr. 25. There is no indication Plaintiff 6 failed to seek treatment or follow treatment recommendations. In fact, Plaintiff’s 7 psychiatrist stated she was “doing an excellent job of working on non-pharmacologic 8 treatments including … psychotherapy.” Tr. 969. Lack of treatment was not a clear and 9 convincing reason to discount Plaintiff’s testimony. 10 c. Improvement with Treatment 11 Plaintiff testified with mental health treatment her “anxiety level is a little bit 12 13 better.” Tr. 65. Part of the coping skills she has developed include “making sure [she 14 has] time for recovery.” Tr. 66. For example, the day after the hearing she made sure to 15 have “nothing planned.” Id. Even with this improvement with treatment, she is 16 uncomfortable going out of her home. Tr. 70. This level of improvement does not show 17 successful relief of symptoms or otherwise contradict Plaintiff’s testimony. 18 d. Activities 19 The ALJ cited Plaintiff getting her hair done and spending a lot of time doing 20 paperwork to maintain her and her son’s government benefits, but failed to explain how 21 this contradicts Plaintiff’s testimony. Conflict with activities was not a clear and 22 convincing reason to discount Plaintiff’s testimony. 23 ORDER REVERSING THE 1 The Court concludes the ALJ erred by discounting Plaintiff’s mental symptom 2 testimony. 3 B. Medical Opinions 4 An ALJ may only reject the contradicted opinion of a treating doctor by giving 5 “specific and legitimate” reasons. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). 6 An ALJ may reject the opinion of a non-acceptable medical source, such as a physical 7 therapist, by giving reasons germane to the opinion. Ghanim v. Colvin, 763 F.3d 1154, 8 1161 (9th Cir. 2014). 9 1. Treating Physician Ellen Kim, M.D. 10 The ALJ gave Dr. Kim’s opinions of significant physical limitations and 11 concentration difficulty due to pain little weight as inconsistent with “fairly 12 13 unremarkable” clinical findings. Tr. 25, 962-64. However, with fibromyalgia, normal 14 clinical findings are expected. “The condition is diagnosed ‘entirely on the basis of 15 patients’ reports of pain and other symptoms,’ and ‘there are no laboratory tests to 16 confirm the diagnosis.’” Revels, 874 F.3d at 666. The Commissioner asserts, without 17 support from the record, that “[c]learly, there would be” abnormal muscle tone, atrophy, 18 or gait if Dr. Kim’s opinions were correct. Dkt. 10 at 9. The Commissioner’s 19 unsupported assumption is not a specific and legitimate reason to discount Dr. Kim’s 20 opinions. 21 22 23 ORDER REVERSING THE 1 The ALJ also found concentration difficulty inconsistent with mental status 2 findings. Tr. 25. However, Dr. Kim opined difficulty concentrating due to pain, not 3 mental impairments. 4 The Court concludes the ALJ erred by discounting Dr. Kim’s opinions. 5 2. Treating Physical Therapists Bernard Bansil and Brock Giannaris 6 The ALJ gave Mr. Bansil’s and Mr. Giannaris’ opinions of physical limitations 7 and likely absences from work at least three days per month little weight as inconsistent 8 with clinical findings. Tr. 27. The opinions were based on fibromyalgia. Tr. 1103. 9 Thus, normal clinical findings are to be expected. Revels, 874 F.3d at 666. The Court 10 concludes the ALJ erred by discounting Mr. Bansil’s and Mr. Giannaris’ opinions. 11 13 For the foregoing reasons, the Commissioner’s final decision is REVERSED and 14 this case is REMANDED for further administrative proceedings under sentence four of 15 42 U.S.C. § 405(g). 16 On remand, the ALJ should reevaluate Plaintiff’s testimony, Dr. Kim’s opinions, 17 and Mr. Bansil’s and Mr. Giannaris’ opinions; reassess the RFC as appropriate; and 18 proceed to step five as necessary. 19 DATED this 2nd day of September, 2020. 20 A 21 22 The Honorable Richard A. Jones United States District Judge 23 ORDER REVERSING THE