Norrell v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: November 4, 2022
• Docket: 3:22-cv-05321
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 LINNEA D. N., CASE NO. 3:22-CV-5321-DWC 11 Plaintiff, ORDER REVERSING AND 12 v. REMANDING FOR FURTHER PROCEEDINGS 13 COMMISSIONER OF SOCIAL SECURITY, 14 Defendant. 15

Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of the denial 16 of her applications for disability insurance benefits and supplemental security income. Pursuant 17 to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and Local Rule MJR 13, the parties have consented to 18 proceed before the undersigned. 19 BACKGROUND 20 On February 14, 2019, Plaintiff protectively filed a Title II application for a period of 21 disability and disability insurance benefits, alleging a disability onset date of February 9, 2018 22 due to easily triggered headaches and exacerbated pain symptoms. Administrative Record (AR) 23 20, 44-46, 49, 57-58, 268. Her claim was denied initially and on reconsideration, after which 24 1 Plaintiff filed a written request for a hearing. AR 16. On March 30, 2021 Plaintiff, who was 2 represented by counsel, testified telephonically at a hearing conducted by an Administrative Law 3 Judge (ALJ). AR 35-77. Plaintiff appealed the ALJ’s denial of her claim to the Appeals Council, 4 which declined review on March 17, 2022 (AR 1-7), rendering the ALJ’s decision the final

5 decision of the Commissioner. 20 C.F.R. §§ 404.981, 416.1481. 6 STANDARD 7 Pursuant to 42 U.S.C. § 405(g) this Court may set aside the Commissioner’s denial of 8 social security benefits if the ALJ’s findings are based on legal error or not supported by 9 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th 10 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). However, the 11 Commissioner’s decision must be affirmed if it is supported by substantial evidence and free of 12 harmful legal error. 42 U.S.C. § 405(g); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 13 2008). 14 Substantial evidence “is a highly deferential standard of review.” Valentine v. Comm’r of

15 Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). The U.S. Supreme Court describes it as 16 “more than a mere scintilla.” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). “It means—and 17 means only—such relevant evidence as a reasonable mind might accept as adequate to support a 18 conclusion.” Id. (internal quotations omitted). 19 THE ALJ’s FINDINGS 20 The ALJ found Plaintiff suffered from the severe impairments of migraines, cervico- 21 occipital neuralgia, asthma, and hypothyroidism. AR 18. 22 The ALJ determined that Plaintiff had a residual functional capacity (RFC) to perform 23 light work as defined in 20 CFR 404.1567(b) with the following additional limitations: she can

24 1 occasionally climb ramps, stairs, ladders, ropes, and scaffolds and can occasionally stoop, kneel, 2 crouch, and crawl; she can tolerate frequent exposure to vibration and loud noise; and she can 3 tolerate occasional exposure to pulmonary irritants, such as fumes, odors, dusts, gases, and poor 4 ventilation. AR 19.

5 At step five of the sequential evaluation the ALJ determined that when considering 6 Plaintiff’s age, education, work experience, and RFC, there are jobs that exist in significant 7 numbers in the national economy that she remains capable of performing, such as Parking Lot 8 Attendant, Mail Clerk/Mailroom Sorter, Sorter of Agricultural Produce, Document Preparer, 9 Final Assembler, and Cashier II. AR 23-24. 10 DISCUSSION 11 Plaintiff claims the ALJ erred in his assessment of her subjective reporting as well as his 12 assessment of the two medical sources Plaintiff asked to advocate for her disability application. 13 Dkt. 8 at 2, 11. The Court concurs, in part, and remands this case for further proceedings for the 14 reasons that follow.

15 I. The ALJ’s assessment of Plaintiff’s subjective reporting was legally insufficient.

16 Plaintiff argues the ALJ failed to point to clear and convincing reasons to reject her 17 subjective reporting because the ALJ: (1) used language suggesting the ALJ decided her RFC 18 before analyzing the medical evidence and subjective symptom testimony; (2) noted that Plaintiff 19 once received Botox injections for migraine treatment that provided “good relief for her 20 headaches”; and, (3) the ALJ neglected to include Plaintiff’s explanation about the manner in 21 which she engages in her activities of daily living. Dkt. 8 at 11-15. 22 To reject a claimant’s subjective complaints, the ALJ must provide “specific, cogent 23 reasons for the disbelief.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996) (citation omitted). 24 1 The ALJ “must identify what testimony is not credible and what evidence undermines the 2 claimant’s complaints.” Id.; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Unless 3 affirmative evidence shows the claimant is malingering, the ALJ’s reasons for rejecting the 4 claimant’s testimony must be “clear and convincing.” Lester, 81 F.2d at 834. If substantial

5 evidence supports the ALJ’s assessment of a claimant’s subjective complaints the reviewing 6 court must uphold the ALJ’s conclusions even if the evidence is susceptible to more than one 7 rational interpretation. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 8 1999). 9 The ALJ gave three reasons for rejecting Plaintiff’s testimony regarding her symptoms 10 and limitations. AR. 20-21. First, the Commissioner concurs that the ALJ erred in finding that 11 Plaintiff’s activities of daily living were inconsistent with the degree of impairment she alleged. 12 Dkt. 9 at 5. But, the Commissioner asserts the “ALJ’s faulty evaluation of Plaintiff’s activity 13 reports was harmless due to the other valid and independent reasons the ALJ gave.” Dkt. 9 at 5 14 (citing AR 20-21; see Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir.

15 2008) (concluding that errors in two reasons for rejecting symptom allegations were harmless 16 because the ALJ gave two other valid reasons)). As discussed below, the Court does not find this 17 error was harmless because the ALJ’s other reasons for rejecting Plaintiff’s subjective reporting 18 were not clear and convincing, either. 19 The second reason—that “the medical evidence of record fails to document significant 20 objective findings or treatment that would support limitations greater than those provided in the 21 residual functional capacity above”—is as Plaintiff argues, out of sequence. Dkt. 8 at 12 (citing 22 Laborin v. Berryhill, 867 F.3d 1151, 1153-54 (9th Cir. 2017)(“By discrediting a claimant’s 23 statements concerning the intensity, persistence and limiting effects of the claimant’s symptoms

24 1 to the extent they are inconsistent with the RFC, the ALJ puts the cart before the horse.)). 2 Further, even if the ALJ had sequenced the analysis properly as the Commissioner argues, the 3 ALJ erred in his evaluation of the medical evidence. 4 The ALJ found that during the relevant period Plaintiff primarily sought treatment from a

5 chiropractor who manipulated her spine and iced her back (AR 528-533), a naturopath who also 6 manipulated her spine, helped her stretch, and gave her massages (AR 490-506), and an 7 orthopedist who periodically injected “trigger-points” in her back and neck with lidocaine, which 8 provided temporary relief for neck pain and headaches (AR 381-406, 460-483, 538-562 ). AR 9 20-21. Plaintiff’s chiropractor and naturopath did not conduct any objective medical testing; they 10 simply credited her subjective reports. Id. (citing AR 528-533, AR 490-506). The ALJ also found 11 that Plaintiff’s primary care provider prescribed pharmacological treatment, but also failed to 12 conduct any objective medical testing of record. AR 21-22 (citing AR 486-489, AR 510-526). 13 Although Plaintiff alleged in her disability application (AR 268) that she could not sit or 14 stand for prolonged periods due to debilitating pain, the ALJ found that Plaintiff generally

15 presented in no acute distress at her medical appointments. AR 386 (“no apparent distress”), 389 16 (same), 392 (same), 394-95 (same), 397 (same), 400 (same), 402 (same). Plaintiff had some 17 tenderness when examined, but without swelling, limited range of motion, or other abnormalities 18 in her cervical spine. AR 20. Examination findings of no acute distress may be relied upon by the 19 ALJ when evaluating allegations of debilitating pain. See Rollins v. Massanari, 261 F.3d 853, 20 856 (9th Cir. 2001); Datillo v. Berryhill, 773 F.App’x. 878, 881 (9th Cir. 2019)(unpublished). 21 The ALJ concluded his review of the objective medical evidence by stating a third reason 22 for not finding her subjective statements credible: “The claimant also reported good relief of her 23 headaches with botulinum toxin treatments, but insurance did not cover them, so she was unable

24 1 to continue the treatments after she stopped working (2F/5, 3F/23, 11F/12).” AR 20. The Court 2 shares Plaintiff’s concern regarding this statement because although the Court does not interpret 3 it to mean that Plaintiff would “not be disabled if she just got Botox treatment” as Plaintiff 4 suggests (Dkt. 8 at 13), it is unclear what the ALJ meant by it. The Commissioner suggests this

5 statement means that Botox injections were part of Plaintiff’s history of successful treatment that 6 allowed Plaintiff to work despite her chronic conditions, as it follows the ALJ’s discussion of 7 Plaintiffs more current trigger-point injection routine.1 Dkt. 9 at 6-7. Yet the ALJ did not actually 8 make this connection, nor did the ALJ comment upon the role Plaintiff’s trigger-point injections 9 played in his determination that her subjective complaints were not fully credible. AR 20. 10 Moreover, the failure to receive treatment not covered by medical insurance cannot support an 11 adverse credibility finding. See Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995) (Disability 12 benefits may not be denied because of a claimant’s failure to obtain treatment he cannot obtain 13 for lack of funds). 14 In sum, this Court finds the ALJ failed to provide clear and convincing reasons for

15 discounting Plaintiff’s statements about the intensity, persistence, and limiting effects of her 16 medical conditions. On remand the ALJ must reassess Plaintiff’s subjective symptom testimony. 17 II. The ALJ properly rejected one of the two medical source opinions Plaintiff presented.

18 In this case, the ALJ deferred to the assessments performed by two state agency medical 19 consultants, along with his own assessment of the record, and rejected the “opinions” provided 20 21 22 1 The Commissioner identified numerous records showing Plaintiff’s lidocaine trigger-point injection appointments were typically separated by two or more months, and offered temporary relief. Dkt. 9 at 4 (citing AR 397 (Feb. 2018), 395 (June 2018), 392 (Sept. 2018), 389 (Dec. 2018), 386 (Feb. 2019), 383 (Apr. 2019), 420 (June 23 2019), 562 (Oct. 2019), 556 (Nov. 2019), 550 (Feb. 2020), 547 (June 2020), 544 (Aug. 2020), 541 (Oct. 2020), 538 (Jan. 2021)). 24 1 by the two medical sources Plaintiff submitted in support of her application. Due to the ALJ’s 2 synchronous assessment of these sources the Court discusses them concurrently. 3 a. Chiropractor Craig Cheple 4 In a letter dated April 26, 2019, Chiropractor Craig Cheple (Cheple) indicated he had

5 been treating Plaintiff for headaches since 2006. AR 407. His letter states, in full: 6 Ms. Norrell has been treating in this office since January 21, 2006. Throughout that time, her main subjective complaint has been headaches. 7 In November of 2014, she was involved in a car accident. Headaches were still 8 her number one complaint, however worsened.

9 Currently, when she comes in for care, her headaches are at a point when she can no longer stand the pain. Her energy is minimal. She’s in tears. Her cervical 10 spine and upper thoracic musculature is in spasms. Her vision is blurred.

11 She lives with headaches on a daily basis.

12 Her work suffers. She has informed me on several occasions that she physically just couldn’t function and perform as she should as a photographer. 13 Often, just hauling her gear will be the onset of a severe headache. 14 I have been able to help her with these headaches; however the relief she 15 receives is temporary.

16 This problem is a chronic, ongoing and a debilitating situation.

17 I trust that this brief note will give you some insight as to her condition[.]

18 Should you require or need further input, do not hesitate to contact me.

19 AR 407 (emphasis added). 20 b. Physician’s Assistant Jamie Nixon 21 Physician’s Assistant Jamie Nixon (Nixon) was Plaintiff’s primary care provider during 22 the relevant period. In August 2019 she completed a “Fibromyalgia Residual Functional 23 Questionnaire” in which she indicted that Plaintiff meets the “American Rheumatological criteria 24 1 for Fibromyalgia” and also suffers from “cervica-occipital neuralgia” and “migraine”. AR 455. 2 Nixon stated that her opinion was based upon “x-rays cervical spine, sacrum, coccyx” and 3 “frequent consultations w/ ortho with injections in neck.” AR 455. 4 Nixon checked boxes indicating Plaintiff’s pain was “frequently” “sufficiently severe to

5 interfere with attention and concentration” and would cause “marked” interference with “work 6 stress”. AR 456. Nixon estimated that Plaintiff could walk about two city blocks before 7 experiencing severe pain or needing to rest, and that she could sit for less than two hours and 8 stand/walk for less than two hours, that she would “sometimes need to lie down at unpredictable 9 intervals during a work shift” and that she “cannot work an 8 hour day”. AR 457. Finally, Nixon 10 checked a box indicating that she anticipates Plaintiff’s “impairments and treatment(s) would 11 cause [her] to be absent from work” more than four times per month. AR 458. 12 c. The ALJ’s findings 13 The ALJ found Nixon and Cheple’s statements to be unpersuasive because they were 14 … inconsistent with the objective medical evidence and the claimant’s demonstrated functioning and [were] largely unsupported by treatment 15 notes, exam findings, and other objective evidence.

16 AR 22 (emphasis added). The ALJ further determined that Cheple’s statement was unhelpful 17 because it was not a function-by-function analysis and because it relied on Plaintiff’s “subjective 18 statements, not objective evidence, as support.” Id. Finally, the ALJ found that Nixon “provided 19 no objective facts to support her highly restrictive check-box opinions.” Id. 20 d. Analysis 21 According to Plaintiff, the ALJ’s rejection of these two opinions is patently wrong as the 22 medical records “actually support [a finding of] significant and disabling pain”. Dkt. 8 at 5. 23 Moreover, Plaintiff insists the ALJ applied “an incorrect legal standard” to his assessment of 24 1 Cheple and Nixon’s opinions by requiring “the medical opinions be consistent with ‘objective 2 medical evidence’”. Dkt. 8 at 4, 7. 3 A medical source “opinion” is a medical source’s statement about a claimant’s ability to 4 perform specific work activities or tolerate environmental conditions. 20 C.F.R. §

5 404.1513(a)(2). The ALJ evaluates medical source opinions based on supportability, consistency, 6 relationship with the claimant, specialization, and other factors. 20 C.F.R. §§ 404.1520c(c); 7 416.920c(c). The most important factors are supportability and consistency. 20 C.F.R. §§ 8 404.1520c(a), (b)(2); 416.920c(a), (b)(2). The supportability factor requires the ALJ to consider 9 the relevance of the objective medical evidence and the supporting explanations presented by the 10 medical source to justify their opinion. 20 C.F.R. § 416.920c(c)(1). Inversely, consistency 11 involves a consideration of how consistent a medical opinion is with the other record evidence. 12 20 C.F.R. § 416.920c(c)(2). 13 A plain reading of his letter reveals that Cheple did not provide any assessment of 14 Plaintiff’s work abilities or limitations, and therefore the ALJ was correct that Cheple’s letter did

15 not constitute a medical opinion. AR 21-22, 407. Cheple’s letter also speaks for itself insofar as 16 every statement is based upon Plaintiff’s subjective reporting with the only arguably objective 17 finding being that Plaintiff sometimes appears in his office “tearful”. AR 407. Thus, even if 18 Cheple’s letter could be read as a “medical opinion”, is was not supported by objective medical 19 evidence as required under 20 C.F.R. § 416.920c(c)(1). 20 Plaintiff contends the “ALJ [failed to make] even a minimal attempt to request the 21 detailed function-by-function analysis that he allegedly needs in order to believe Dr. Cheple.” 22 Dkt. 8 at 9. However, this Court concurs with the Commissioner that because the ALJ did not 23 feel it necessary to obtain further information from Cheple in order to reach a conclusion about

24 1 whether Plaintiff was disabled, his duty to further develop the record was not triggered. 20 2 C.F.R. § 404.1520b(b)(2). Nevertheless, on remand, the ALJ may choose to schedule a 3 consultative evaluation in this case if he/she “cannot reach a conclusion” about whether a 4 Plaintiff is disabled without it. 20 C.F.R. § 404.1520b(b)(2).

5 As for Nixon, the Court concurs with the ALJ’s determination that Nixon fails to point to 6 objective medical evidence, including treatment notes, exam findings, or other objective 7 evidence,2 to support her opinion that fibromyalgia caused Plaintiff extreme work-related 8 limitations. AR 22. This failure renders Nixon’s opinion unsupported, in contravention of 20 9 C.F.R. § 416.920c(c)(1). However, whether Nixon’s opinion is also inconsistent with the record 10 is unclear as the ALJ did not explain the ALJ’s reference to Nixon’s opinion being at odds with 11 “demonstrated functioning”. AR 22. Was the ALJ referring to Plaintiff’s activities of daily 12 living? Or perhaps her performance during medical examinations? In any event, the ALJ did not 13 provide sufficient analysis to support the ALJ’s conclusion that Nixon’s opinion is inconsistent 14 with other record evidence, pursuant to 20 C.F.R. § 416.920c(c)(2).

15 In sum, this Court finds the ALJ’s assessment of Cheple was supported by substantial 16 evidence, however the ALJ’s assessment of Nixon needs further development following the 17 ALJ’s reevaluation of Plaintiff’s subjective testimony. 18 /// 19 /// 20

21 2 The only imaging included indicates Plaintiff refused an MRI of the spine because she “has a phobia of 22 MRI machines” but x-rays of her spine showed she was “stable radio graphically [sic] as well as clinically”. See AR 451. Nixon states that her opined fibromyalgia-based limitations are based upon this evidence. AR 455. The only other “clinical findings” Nixon references are Plaintiff’s regular cervical muscle trigger point injections from 23 Dominic Femiano, M.D. (Femiano). AR 455. Yet Femiano’s notes do not contain any objective medical testing. See AR 536-566. 24 1 III. The ALJ’s errors were not harmless. 2 As discussed, above, the Commissioner concurs with Plaintiff that the ALJ erred in 3 finding that her activities of daily living were inconsistent with the degree of impairment she 4 alleged, but asserts this error was harmless. Dkt. 9 at 5. Plaintiff argues this error was not

5 harmless. Dkt. 10 at 7. 6 Harmless error principles apply in the Social Security context. Molina v. Astrue, 674 F.3d 7 1104, 1115 (9th Cir. 2012). An error is harmless, however, only if it is not prejudicial to the 8 claimant or is “inconsequential” to the ALJ’s “ultimate nondisability determination.” Stout v. 9 Commissioner, Social Security Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); Molina, 674 F.3d 10 at 1115. The determination as to whether an error is harmless requires a “case-specific 11 application of judgment” by the reviewing court, based on an examination of the record made 12 “‘without regard to errors’ that do not affect the parties’ ‘substantial rights.’” Molina, 674 F.3d at 13 1118–1119 (quoting Shinseki v. Sanders, 556 U.S. 396, 407 (2009) (quoting 28 U.S.C. §2111)). 14 In this case, the Court finds the ALJ’s citation to Plaintiff’s activities of daily living without

15 further explanation was, in fact, harmless because the ALJ’s other reasons for rejecting 16 Plaintiff’s subjective reporting were not clear and convincing, either. In addition, the Court also 17 finds that the ALJ failed to articulate why medical provider Nixon’s opinion was inconsistent 18 with the longitudinal record. Had the ALJ credited Plaintiff’s subjective symptom testimony as 19 well as Nixon’s medical opinion, the ultimately disability determination in this case may have 20 been different. Accordingly, the Court finds these errors were not harmless, and therefore require 21 reversal. 22 /// 23 ///

24 1 CONCLUSION 2 For the foregoing reasons the Commissioner’s final decision is REVERSED and 3 REMANDED for further proceedings consistent with this order. 4 Dated this 4th day of November, 2022.

5 A 6 David W. Christel United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24