Monahan v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: February 15, 2023
• Docket: 2:22-cv-00891
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 GINA J. M., 8 Plaintiff, CASE NO. C22-891-BAT 9 v. ORDER REVERSING THE 10 COMMISSIONER’S DECISION COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12

13 Plaintiff appeals the ALJ's denial of her applications for Supplemental Security Income 14 (“SSI”) and Disability Insurance Benefits (“DIB”). She contends the Court should remand the 15 case based upon new evidence submitted to the Appeals Council, and because the ALJ 16 misevaluated her testimony and certain medical opinions, resulting in an erroneous residual 17 functional capacity (“RFC”) assessment. Dkt. 10 at 1. For the reasons below, the Court 18 REVERSES the Commissioner's final decision and remands the case for further proceedings 19 under sentence four of 42 U.S.C. § 405(g). 20 BACKGROUND 21 Plaintiff is currently forty-five years-old, has a high school education, and previously 22 worked as an insurance clerk, hospital admitting clerk, and residential leasing agent. Tr. 64. In 23 March 2019, she applied for benefits, alleging disability as of February 13, 2017. Tr. 565-82. 1 Her application was denied initially and on reconsideration. Tr. 381-408, 411-42. The ALJ 2 conducted a hearing in June 2021 (Tr. 72-101), and subsequently issued a decision on August 17, 3 2021, finding Plaintiff not disabled. Tr. 54-66. 4 After the ALJ’s decision, Plaintiff submitted additional evidence to the Appeals Council.

5 Tr. 1-2, 11-50, 102-378. The Appeals Council decided some of the new evidence did not relate to 6 the period at issue (Tr. 11-50), and the other new evidence did not show a reasonable probability 7 it would change the outcome of the decision (Tr. 102-378). Tr. 2. As the Appeals Council 8 denied Plaintiff's request for review, the ALJ's decision is the Commissioner's final decision. Tr. 9 1–4. 10 DISCUSSION 11 A. New Evidence 12 Plaintiff’s new evidence involves two categories: First, 277 pages of records that pre- 13 dated the ALJ’s August 17, 2021, decision (“category one”); and second, forty pages of records 14 from September 2021, which post-dated the ALJ’s August 17, 2021, decision but predated

15 Plaintiff’s December 31, 2022, date last insured (“DLI”) (“category two”). Tr. 102-378, 11-50; 16 see Tr. 54 (findings regarding Plaintiff’s DLI). 17 Most notably, category one includes a definitive diagnosis of complex regional pain 18 syndrome (“CRPS”) from pain specialist, Dr. Elisabeth Powelson, along with Dr. Powelson’s 19 June 16, 2021 visit records.1 Tr. 347-53. Approximately forty-five of the 277 pages of category 20

21 1 CRPS, also known as Reflex Sympathetic Dystrophy Syndrome (“RSDS” or “RSD”), refers to a “unique” and “chronic pain syndrome” that may develop following even a minor injury to bone 22 or soft tissue, most often following trauma to a single extremity. Social Security Ruling (“SSR”) 03–02p, 2003 WL 22399117, at *1. Many individuals with CRPS are between 18 and 49 years 23 old. Id. at *8. Its primary characteristic “is a ‘continuous, intense pain out of proportion to the severity of the injury.’” Hunt v. Astrue, No. EDCV 08–00299–MAN, 2009 WL 1519543, at *4 (C.D. Cal. May 29, 2009) (quoting National Institutes of Health, National Institute of 1 one records pertain to Dr. Powelson’s June 2021 examination and diagnosis. See Tr. 334-78 2 (referral to Dr. Powelson and supporting medical records from June 2021). The remaining 232 3 pages in category one, however, largely include records related to the adjudication of Plaintiff’s 4 workers’ compensation claim and medical evidence that is duplicative of records already

5 contained in the administrative record (“AR”). See Tr. 102-333. Category two includes medical 6 records from Plaintiff’s follow-up September 1, 2021, visit to Dr. Powelson, at which time Dr. 7 Powelson reiterated her CRPS diagnosis and articulated a treatment plan for Plaintiff’s CRPS. 8 See generally Tr. 11-50; see also Tr. 24-28 (treatment plan and related notes). 9 1. Legal Standards 10 Social Security Administration (“SSA”) regulations permit a claimant to submit 11 additional evidence to the Appeals Council if the claimant shows good cause for not having 12 submitted it earlier. 20 C.F.R. § 404.970(b). When good cause is shown, the regulations provide 13 that the Appeals Council will review a case based on additional evidence submitted to the 14 Council for the first time if the evidence is “material,” it relates to a time period on or before the

15 ALJ's decision, and “there is a reasonable probability that the additional evidence would change 16 the outcome of the decision.” 20 C.F.R. § 404.970(a)(5); see also White v. Kijakazi, 44 F.4th 17 828, 835–36 (9th Cir. 2022) (reiterating standards). 18 When the Appeals Council “considers” the new evidence “in denying review of the ALJ's 19 decision, [it becomes] part of the administrative record, which the district court must consider in 20 determining whether the Commissioner's decision is supported by substantial evidence.” Brewes 21

22 Neurological Disorders and Stroke Complex Regional Pain Syndrome Information Page, http://www.ninds.nih.gov/disorders/reflex-sympathetic-dystrophy); see also SSR 03–02p, 2003 23 WL 22399117, at *5 (recognizing that the signs and symptoms of CRPS “may remain stable over time, improve, or worsen”). 1 v. Commissioner of Soc. Sec. Admin., 682 F.3d 1157, 1162-63 (9th Cir. 2012). That includes 2 new evidence that the Appeals Council considered but failed to exhibit, like categories one and 3 two here. See Williams v. Berryhill, No. 17-5885-BAT, 2018 WL 6737511, at *3 (W.D. Wash. 4 Apr. 19, 2018) (concluding that the Appeals Council’s statement that it “did not consider and

5 exhibit this evidence,” was contradicted by the Appeals Council’s subsequent finding that the 6 “evidence d[id] not show a reasonable probability that it would change the outcome of the 7 decision,” and holding that the new evidence was “thus reviewable by the Court in determining 8 whether the ALJ's decision remain[ed] supported by substantial evidence”); see also Tr. 2. If the 9 Appeals Council mistakenly fails to consider new evidence based on an erroneous assessment of 10 that evidence, remand to the ALJ is appropriate so that the ALJ can reconsider its decision in 11 light of the additional evidence. See Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1232 12 (9th Cir. 2011); accord Edgecomb v. Berryhill, 741 F. App'x 390, 393 (9th Cir. 2018). 13 2. Good Cause 14 Plaintiff argues that there is good cause for the delayed submission of the CRPS

15 diagnosis and related evidence because Dr. Powelson’s June 2021 visit records were signed by 16 Dr. Powelson after Plaintiff’s June 2021 hearing commenced, and the September 2021 records 17 post-dated the hearing and the ALJ’s decision. Dkt. 10 at 5. Plaintiff, however, has not offered 18 any reason, in support of her submission of the additional records (which included many 19 duplicative records) in category one dated prior to June 2021. See Tr. 102-333. Neither the 20 Commissioner nor the Appeals Council addressed the issue. 21 Based on Plaintiff’s argument and the lack of opposition, the Court concludes good cause 22 exists regarding the category one and category two records that pertain to Plaintiff’s CRPS 23 diagnosis and related visits, including Tr. 11-50 and Tr. 334-378 (hereinafter the “new CRPS 1 evidence”). Those records came into existence immediately prior to and following the ALJ’s 2 June 2021 hearing. See Chase v. Colvin, 665 F. App'x 583, 587 (9th Cir. 2016) (quoting Mayes 3 v. Massanari, 276 F.3d 453, 463 (9th Cir. 2001)) (holding that “good cause” exists where “the 4 new evidence was unavailable earlier”). However, the pre-June 2021 documents are largely

5 duplicative of the evidence the ALJ considered, and the Court as discussed below finds remand 6 for further proceedings is necessary. The Court, accordingly, need not further discuss the records 7 found at Tr. 102-333 in conjunction with Plaintiff’s assignment of error regarding new evidence. 8 3. Materiality and Impact on ALJ’s Decision 9 Plaintiff argues the new CRPS evidence is material because it includes a formal diagnosis 10 of CRPS, the signs and symptoms of which were already supported by objective medical 11 evidence in the record. See Dkt. 10 at 4 (multiple citations to the record). Plaintiff notes the ALJ 12 specifically declined to find CRPS was a severe impairment based on the absence “of a formal 13 diagnosis of CRPS in the record,” and argues the ALJ’s reasoning suggests he would have given 14 more consideration to the medical evidence and testimony regarding the signs and symptoms of

15 CRPS if he had a formal diagnosis. See Tr. 57. 16 The Commissioner responds a diagnosis alone is insufficient to establish the existence of 17 a medically determinable impairment at step two, suggesting the new CRPS diagnosis would not 18 have changed the ALJ’s step two analysis. Dkt. 17 at 3. The Commissioner further argues even 19 though there was no formal CRPS diagnosis, the ALJ adequately considered Plaintiff’s pain in 20 assessing her RFC at step four. 21 Plaintiff counters the ALJ did not in fact address all of her CRPS symptoms, including 22 her “motor weakness at the upper extremities, cool hands with evidence of impaired perfusion, 23 delayed capillary refill in hands and nailbeds, and swelling in [her] hands.” Dkt. 10 at 4, Dkt. 18 1 at 2. Plaintiff further notes the new CRPS evidence is not limited to the diagnosis itself but 2 includes Dr. Powelson’s abnormal examination findings as well. See Tr. 27, 345 (Dr. Powelson 3 found Plaintiff satisfied the “Budapest criteria for her bilateral upper extremity pain,” and 4 explained how Plaintiff’s multiple symptoms satisfied the four-step CRSP diagnostic criteria).

5 The Court concludes the new CRSP evidence is material because it provides new insight 6 on existing medical evidence and testimony regarding physical symptoms the ALJ found were 7 “out of proportion” to the objective medical evidence, and, additionally, because it provides 8 context for mental impairments and symptoms the ALJ deemed “situational” or similarly 9 unsupported by the longitudinal evidence. See Holster v. Berryhill, No. C17-5578-BAT, 2018 10 WL 571798, at *2 (W.D. Wash. Jan. 25, 2018) (citing Mayes, 276 F.3d at 462) (noting new 11 evidence is material “if it bears directly and substantially on the matter in dispute and if there is a 12 reasonable possibility that the new evidence would have changed the outcome of the 13 administrative hearing”); see also Tr. 59 (concluding that Plaintiff’s “physical complaints are out 14 of proportion to the medical record”); Tr. 61. Contrary to the Commissioner’s argument

15 otherwise, the Court agrees there is a reasonable probability the diagnosis would have altered the 16 outcome given the existing medical evidence of record and the ALJ’s express reliance on the 17 absence of a diagnosis in his sequential analysis at step two. See Tr. 57. Moreover, the records 18 show the ALJ’s existing step four analysis did not adequately address Plaintiff’s CRPS and 19 related symptoms. 20 The Court notes Plaintiff’s new CRSP evidence, at a minimum, triggers the ALJ’s 21 obligation to consult the relevant social security ruling, SSR 03-02p, which itself requires the 22 ALJ to reassess his steps two and four conclusions in light of additional considerations detailed 23 in that ruling. See SSR 03-2p, Titles II and XVI: Evaluating Cases Involving Reflex 1 Sympathetic Dystrophy Syndrome/Complex Regional Pain Syndrome, 2003 WL 22399117 (Oct. 2 20, 2003); Givens v. Kijakazi, No. 19-35671, 2022 WL 1486829, at *1 (9th Cir. May 11, 2022) 3 (holding that ALJ erred in evaluating evidence related to claimant’s CRSP, including her 4 testimony and the medical opinions, where the ALJ failed to consult SSR 03-02p, but instead

5 stated simply that she had “considered all of the claimant’s established symptoms and resulting 6 functional limitations – regardless of the diagnostic label – in assessing [the claimant’s RFC]”); 7 Saffaie v. Berryhill, 721 F. App'x 709, 710 (9th Cir. 2018) (“The ALJ's failure to analyze [the 8 claimant's] CRPS diagnosis in accordance with SSR 03-02p was not a harmless error.”). 9 Specifically, SSR 03-02p provides CRPS can be established at step two as a medically 10 determinable impairment by the persistence of pain complaints “that are typically out of 11 proportion to the severity of any documented precipitant and one or more of the following 12 clinically documented signs in the affected region at any time following the documented 13 precipitant:” swelling; autonomic instability (including changes in skin color, texture, or 14 temperature; change in degree of sweating; and abnormal pilomotor erection (goosebumps));

15 abnormal hair or nail growth; osteoporosis; or involuntary movements of the affected region of 16 the initial injury. 2003 WL 22399117, at *4. As Plaintiff accurately notes, the record 17 demonstrates Plaintiff suffered from several of these symptoms. See Dkt. 10 at 4 (citing Tr. 708, 18 727, 749, 758, 768, 774, 779-80, 937, 940-41, 1102, 1365). 19 In determining the RFC of an individual who has CRPS, SSR 03-02p further requires the 20 ALJ to consider “all of the individual's symptoms . . . in deciding how such symptoms may 21 affect functional capacities” with “[c]areful consideration . . . [of] the effects of pain and its 22 treatment on an individual's capacity to do work-related physical and mental activities in a work 23 setting on a regular and continuous basis.” 2003 WL 22399117, at *7. The ruling recognizes 1 that, “[c]onflicting evidence in the medical record is not unusual in cases of [CRPS] due to the 2 transitory nature of its objective findings and the complicated diagnostic process involved” and, 3 in turn, requires “[c]larification of any such conflicts in the medical evidence . . . first from the 4 individual's treating or other medical sources.” Id. at *5; see also id. at *4 (recognizing that

5 “longitudinal clinical records reflecting ongoing evaluation and treatment . . . especially [from] 6 treating sources are extremely helpful” in evaluating a disability claim based on CRPS). Finally, 7 because chronic pain is an “expected symptom” of CRPS, “careful consideration” must be given 8 to the evaluation of the credibility of the claimant's pain. Id. at *6–*7. 9 Here, Plaintiff’s treating physicians, Drs. Cheryl Hayes, and Carrie Hardy, both opined 10 that based on her pain and physical impairments, Plaintiff was limited to either sedentary or less 11 than sedentary work. See Tr. 1415-18 (Dr. Hardy’s April 2021 opinion Plaintiff was limited to 12 less than sedentary work based on her diagnosed brachial plexus disorder and radiating bilateral 13 arm pain and hand pain, headaches, swelling, depression, disrupted sleep, and decrease in grip 14 strength); 879-83 (Dr. Hayes’ November 2018 opinion that Plaintiff was limited to sedentary

15 work based on her diagnosed thoracic outlet syndrome, ulnar neuropathy, and her constant neck 16 pain with headaches, radiating pain in her thoracic region, and bilateral pain down arms, wrists, 17 and hands, tingling, and numbness). In concluding that Plaintiff possessed an RFC for light 18 work, the ALJ rejected treating Drs. Hardy’s and Hayes’ opinions for the very reasons 19 anticipated and addressed by SSR 03-02p: inconsistencies and conflicts in the evidence. Tr. 63. 20 The same was the case with the ALJ’s rejection of the November 2018 opinion of 21 examining psychologist, Dr. Luci Carstens, regarding Plaintiff’s mental impairments. See Tr. 22 63-64 (rejecting Dr. Carsten’s opinion regarding the existence of several marked impairments as 23 inconsistent with the record); see also SSR 03–02p, 2003 WL 22399117, at *5 (noting that the 1 symptoms and treatment of CRPS may impact a claimant’s cognition and mood, including, 2 specifically, “an individual’s ability to maintain attention and concentration”). Despite 3 recognizing the conflicting nature of the evidence in rejecting Plaintiff’s testimony and the 4 treating and examining medical opinions at step four, the ALJ did not discuss or apply SSR 03-

5 02p – presumably because, at that point, the ALJ did not have evidence of a formal CRSP 6 diagnosis. See Tr. 59-64; see also Tr. 60 (rejecting Plaintiff’s testimony and noting evidence that 7 in 2018, Plaintiff “had seen multiple specialists regarding her symptoms with no definitive 8 diagnosis”). 9 For these reasons, the ALJ is required to consider on remand the new CRPS evidence (Tr. 10 11-50, 334-378) because it directly and substantially impacts Plaintiff’s case, and there is a 11 reasonable possibility that the new evidence would have changed the outcome of the 12 administrative hearing. In doing so, the ALJ must also re-evaluate the medical opinions and 13 Plaintiff’s testimony in accordance with SSR 03-02p. 14 B. Additional Issues

15 Because the new CRSP evidence necessarily requires the ALJ to reassess on remand 16 Plaintiff’s other arguments regarding Plaintiff’s testimony and the medical opinions the Court 17 concludes the Court the ALJ shall on remand reassess Plaintiff’s testimony and the other medical 18 opinions. The Court also notes Dr. Harmon’s statement at Tr. 915-16 appears to constitute a 19 “medical opinion,” which the ALJ should evaluate along with the other medical opinions on 20 remand.2 See 20 C.F.R. §§ 404.1513(a)(2), 416.913(a)(2). Although the Court did not consider 21

22 2 Plaintiff notes that the ALJ failed to consider the November 2018 medical opinion from psychologist, Dr. Dana Harmon. Dkt. 10 at 15-16; see also Tr. 915-16, 63-64. The 23 Commissioner counters that Dr. Harmon’s submission did not constitute a “medical opinion” because she failed to state what Plaintiff “can do despite [her] limitations.” Dkt. 17 at 18. The Court disagrees. See 20 C.F.R. §§ 404.1513(a)(2), 416.913(a)(2) (2017 revisions updated 1 the pre-June 2021 documents that Plaintiff submitted to the Appeal Council, the ALJ is directed 2 to consider these records on remand. 3 CONCLUSION 4 The Commissioner's decision is REVERSED, and this case is REMANDED for further

5 administrative proceedings under sentence four of 42 U.S.C. § 405(g). On remand, the ALJ shall 6 consider the new CSRP evidence at steps two and four of his sequential analysis in accordance 7 with SSR 03-02p, which requires the ALJ to re-evaluate Plaintiff’s testimony and the medical 8 opinions regarding Plaintiff’s physical and mental impairments. The AJ shall also consider the 9 pre-2021 records submitted to the Appeals Council, develop the record as necessary and 10 redetermine Plaintiff’s RFC as needed. The ALJ shall proceed to the remaining steps of the 11 disability determination process as appropriate. 12 DATED this 15th day of February, 2023. 13 A 14 BRIAN A. TSUCHIDA United States Magistrate Judge 15

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19 regulations to define a “medical opinion” as “a statement from a medical source about what [the claimant] can still do despite [their] impairment(s) and whether [they] have one or more 20 impairment-related limitations or restrictions” in their “ability to perform physical demands of work activities, such as sitting, standing, walking, lifting, carrying, pushing, pulling or other 21 physical functions . . . . ”). Dr. Harmon opined that while she “did not see strong evidence of any significant limitations in [Plaintiff’s] work-related cognitive functioning,” she nevertheless 22 agreed with Dr. Carstens regarding the limitations associated with Plaintiff’s social functioning. Tr. 915-16. Dr. Carstens, in turn, opined that Plaintiff possessed marked impairments in her 23 abilities to communicate and perform effectively in a work setting and to maintain appropriate behavior in a work setting. Tr. 889.