Oakmon v. Commissioner of Social Security

Opinion

WESTERN DISTRICT OF WASHINGTON DERRICK O., Case No. C21-5329 TLF Plaintiff, v. ORDER REVERSING AND REMANDING DEFENDANT’S COMMISSIONER OF SOCIAL SECURITY, DECISION TO DENY BENEFITS Defendant.

Plaintiff has brought this matter for judicial review of the Commissioner’s denial of plaintiff’s application for Supplemental Security Income disability benefits. The parties have consented to have this matter heard by the undersigned Magistrate Judge. 28 U.S.C. § 636(c); Federal Rule of Civil Procedure 73; Local Rule MJR 13. 1. Whether the ALJ erred in rejecting the opinions of consultative examiner Dr. Coe and state agency reviewing physician Dr. Hurley? 2. Whether the ALJ erred in rejecting plaintiff’s testimony? On October 24, 2018 plaintiff filed an application for supplemental security income benefits alleging a disability onset date of March 1, 2018. Administrative Record (AR) 15, 196-201. Plaintiff’s application was denied initially and upon reconsideration. AR 15. A hearing was held before Administrative Law Judge Lawrence Lee on August 25, 2020. AR 15, 33-68. On September 28, 2020, the ALJ issued a decision finding that plaintiff was not disabled. AR 15-25. On March 1, 2021, the Appeals Council denied review, making the ALJ’s decision the final agency decision. AR 1-6. Plaintiff seeks judicial review of the ALJ’s September 28, 2020 decision. Dkt. 1.

Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of Social Security benefits if the ALJ’s findings are based on legal error or not supported by substantial evidence in the record as a whole. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations omitted). The ALJ found that plaintiff had the severe, medically determinable impairments

of migraine headaches, and unspecified neck and back pain. AR 17. Based on the limitations stemming from these impairments, the ALJ found that plaintiff could perform light work with the following limitations: He can lift and/or carry 20 pounds occasionally and 10 pounds frequently. He can stand and/or walk for 6 hours in an 8-hour workday. He can sit for 6 hours in an 8-hour workday. He can frequently reach overhead bilaterally. He can frequently climb ramps and stairs. He can never climb ladders, ropes, or scaffolds. He can frequently stoop, kneel, crouch, and crawl. He can occasionally balance. He can never work at unprotected heights. He can occasionally work around moving mechanical parts.

AR 20. Relying on vocational expert (VE) testimony, the ALJ determined that plaintiff could perform his past relevant work and in the alternative that plaintiff could perform other work existing in the national economy. AR 24-25. Accordingly, the ALJ concluded that plaintiff was not disabled. AR 25. A. Medical Opinions On June 24, 2019, Dr. John Richard Coe conducted a consultative physical evaluation of plaintiff. AR 464-70. Plaintiff reported to Dr. Coe that he suffered from

migraines with visual disturbances, degenerative nerve pain in the neck, severe vertigo, and sciatica. AR 464. Dr. Coe reported that plaintiff had very little difficulties with activities of daily living when not having an episode of migraines, but is unable to work “because he cannot observe a work schedule.” AR 464. Dr. Coe diagnosed plaintiff with chronic unstable lower back with right-sided sciatica; hypermobile cervical spine; causing myositis, left scalene group; traction on the upper nerve root of the brachial plexus on the left; and common migraine with aura. AR 470. Dr. Coe provided the following functional assessment: [C]laimant can lift and carry 30 pounds occasionally and 20 pounds frequently. He can stand and walk for less than an hour in an eight-hour day. He can sit for 4 hours in an eight-hour day. There are no postural, manipulative, visual, or communicative limitations beyond these: The claimant should be advised not to attempt climbing, stooping, lifting outside the above limitations, and overhead work. Environmentally, the only limitation which is pretty much disabling is that the claimant will not be able to keep to a schedule because of the unpredictability of his migraine attacks or of his painful areas of the cervical spine and/or the lumbar spine.

AR 470.

In July 2019, a state agency reviewing physician, Wayne Hurley, M.D., reviewed the medical records, including Dr. Coe’s report, and provided an RFC for plaintiff. AR 88-90. Dr. Hurley opined that plaintiff could occasionally lift and/or carry 20 pounds and could frequently lift and/or carry 10 pounds. AR 88. Further, Dr. Hurley opined that plaintiff would be limited to standing and/or walking for a total of two hours in an eight hour workday and limited to sitting for six hours in an eight hour workday. AR 88-89. Further, Dr. Hurley stated that plaintiff would only be able to occasionally climb ramps/stairs, climb ladders/ropes/scaffolds, balance and frequently stoop, kneel, crouch

and crawl. AR 89. Dr. Hurley also noted that plaintiff suffered from ongoing migraines with some relief from medication as well as dizziness and vertigo. AR 89, 90. The ALJ found these opinions unpersuasive because “there is no narrative explanation for the limitations, and because they are not supported by the consultative examination findings.” AR 22-23. The ALJ explained that on the physical examination, Dr. Coe commented that the imaging was not significant for any abnormalities, and motor movements, sensory, reflects, gait, station, and movement were all intact/within normal limits. AR 23. Additionally, the ALJ pointed out that the cervical spine examination was normal and there was no observation of the claimant having any

difficulty standing in one place or walking around the examination room. AR 23. Therefore, the ALJ determined that Dr. Coe and Dr. Hurley’s opined standing/walking limitations are not supported. AR 23. The ALJ also pointed to treatment notes as contradicting the opinions of Dr. Coe and Dr. Hurley. AR 23. The ALJ cited treatment notes stating that plaintiff’s migraines “may be fairly under control” and stable. AR 23 (citing AR 480-81). The ALJ also cited to treatment notes from October 2019 indicating that plaintiff was negative for arthralgias. AR 23 (citing AR 508). Finally, the ALJ cited to a November 2018 evaluation from Olympic Sports & Spine as contradicting the opinions of Dr. Coe and Dr. Hurley. AR 23 (citing AR 448- 450). The ALJ reasoned that in the notes “the claimant stated that he liked to do strenuous workouts at the gym, and he also reported that he was doing 10+ hour workdays as a convenience store clerk.” AR 23. The ALJ also noted that plaintiff

reported being able to lift up to 40 pounds helping a friend move. AR 23. The ALJ concluded that these statements were inconsistent with Dr. Coe and Dr. Hurley’s opined limitations. AR 23. Plaintiff filed the claim on October 24, 2018, so the ALJ applied the 2017 regulations. See AR 15, 196-201; see Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01, 2017 WL 168819 (Jan. 18, 2017). Under the 2017 regulations, the Commissioner “will not defer or give any specific evidentiary weight . . . to any medical opinion(s) . . . including those from [the claimant’s] medical sources.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). The ALJ must nonetheless explain

with specificity how he or she considered the factors of supportability and consistency in evaluating the medical opinions. 20 C.F.R. §§ 404.1520c(a)–(b), 416.920c(a)–(b). The genesis of the “specific and legitimate” substantive legal standard is the case of Murray v. Heckler, 722 F.2d 499, 501–02 (9th Cir. 1983). In that case, the Ninth Circuit did not mention any regulations promulgated by the Social Security Administration (the regulations that set forth different ways of considering various types of doctor opinions were promulgated in 1991, 56 FR 36932-01, 1991 WL 142361). The Court reviewed precedent from other circuits and determined that an ALJ’s decision rejecting or discounting a treating physician’s opinion that conflicts with a physician who saw the patient only once, would need to meet the following substantive legal standard: The ALJ’s findings would be upheld if they are based on reasons that are specific and legitimate. Murray, at 502. This “specific and legitimate” standard is in addition to the requirement of substantial evidence. Id. The regulations applicable to cases filed before March 27, 2017, set out a

hierarchy by which an ALJ would consider opinion evidence; more weight was generally given to the opinion of a treating doctor than to an examining doctor, and more weight to the opinion of an examining doctor than to a non-examining doctor. The Ninth Circuit mentioned those pre-March 27, 2017 regulations and found that its precedent in Murray setting forth legal standards for treating and examining doctors would be consistent with the C.F.R. provisions. See Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); 20 C.F.R. §§ 404.1527, 416.927. As discussed above, in 2017, the Commissioner revised agency regulations and removed language regarding the hierarchy of medical opinions. The Ninth Circuit has not yet considered the 2017 regulations, or whether the

change in regulations will cause the Court of Appeals to reevaluate its holdings regarding the legal standards of “clear and convincing” or “specific and legitimate” reasons for an ALJ to reject medical opinions. The Ninth Circuit has repeatedly held that an ALJ must have specific, legitimate reasons supported by substantial evidence in order to reject or discount the opinion of an examining doctor if the opinion is contradicted by another doctor’s opinion. See Lester, 81 F.3d at 830–31; Ryan v. Commissioner of Social Sec., 528 F.3d 1194, 1198-99 (9th Cir. 2008). The “specific and legitimate reasons” language used by the Ninth Circuit in precedent is an appellate standard – established in Murray v. Heckler, 722 F.2d 499, 501–02 (9th Cir. 1983). Therefore, the ALJ’s explanation must be legitimate, as the Court will not affirm a decision that is based on legal error or not supported by substantial evidence. See Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). Thus, the regulations require the ALJ to provide specific and legitimate reasons to reject a doctor’s opinions. See also Kathleen G. v. Comm’r of Soc. Sec., No. C20-461 RSM, 2020 WL 6581012 at *3 (W.D.

Wash. Nov. 10, 2020) (unpublished opinion) (finding that the new regulations do not clearly supersede the “specific and legitimate” standard because the “specific and legitimate” standard refers not to how an ALJ should weigh or evaluate opinions, but rather the standard by which the Court evaluates whether the ALJ has reasonably articulated his or her consideration of the evidence). 1. Brief and Conclusory Explanation First, the ALJ concluded that these medical opinions were unpersuasive because “there is no narrative explanation for the limitations.” AR 22-23. The ALJ is not required to accept the opinion of a physician “if that opinion is

brief, conclusory, and inadequately supported by clinical findings.” Ford v. Saul, 950 F.3d 1141, 1154-55 (9th Cir. 2020). However, even where a physician’s opinion is brief and conclusory, an ALJ must consider its context in the record—especially the physician’s treatment notes. See Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014). Accordingly, while the ALJ cannot reject the opinion merely for being expressed as answers to a check-the-box questionnaire, the ALJ may permissibly reject a report that does not contain any explanation of the basis of their conclusion. Ford, 950 F.3d at 1155 (internal quotations omitted). Dr. Coe conducted a physical examination of plaintiff which included an examination of plaintiff’s lumbar spine, cervical spine, upper extremities, lower extremities, a neurological evaluation and diagnostic testing. AR 467-69. Additionally, Dr. Coe explained that his opinion was based on the physical examination as well as observations during the claimant’s physical examination. AR 466, 470. Dr. Hurley based

his opinion on plaintiff’s medical records, including Dr. Coe’s examination. AR 88-90. The medical record and Dr. Coe’s physical evaluation provide a basis for Dr. Coe and Dr. Hurley’s opined limitations. Accordingly, when viewed in the context of the record and the physical evaluations conducted, Dr. Coe and Dr. Hurley’s opinions are not brief and conclusory explanations. The ALJ erred in finding that the opinions are unpersuasive because they do not have a narrative explanation for the limitations. 2. Unsupported by the Examination Findings Next, the ALJ determined that Dr. Coe and Dr. Hurley’s opined limitations regarding plaintiff’s ability to stand and walk are unpersuasive because they are not

supported by the consultative examination findings. AR 22-23. The ALJ explained that Dr. Coe “stated imaging was not significant for any abnormalities, and motor movements, sensory, reflexes, gait, station, and movement were all intact/within normal limits, cervical spine examination was normal and there was no observation of the claimant having any difficulty standing in one place or walking around the examination room.” AR 23. An ALJ may discount a doctor’s opinions when they are inconsistent with or unsupported by the doctor’s own clinical findings. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). It does not appear that Dr. Coe’s consultative examination findings undermine Dr. Coe’s or Dr. Hurley’s opinions regarding standing and walking limitations. Dr. Coe opined that plaintiff suffered from chronic unstable low back pain with right-side sciatica and common migraine with aura. AR 470. Additionally, Dr. Coe noted that plaintiff complained of severe vertigo. AR 464. Dr. Coe also opined that plaintiff limitation

stemmed from plaintiff’s unpredictable migraine attacks as well as plaintiff’s cervical and lumbar spine pain. AR 470. Further. Dr. Hurley explained that plaintiff’s exertional and postural limitations are affected by plaintiff’s vertigo. AR 90. Dr. Coe based the opined limitations on a combination of plaintiff’s spinal pain, migraines and vertigo. Dr. Hurley attributed plaintiff’s postural limitations to vertigo and migraines. The fact that plaintiff exhibited normal motor movements, sensory, reflex, gait, station and movement, does not contradict limitations based on migraines or vertigo. Similarly, a normal cervical spine examination does not contradict a finding of lumbar spine pain, migraines or vertigo. Further, Dr. Coe noted that plaintiff’s migraine

attacks were unpredictable. AR 470. Accordingly, the fact that plaintiff was able to stand and walk during the medical examination – while plaintiff was not having a migraine attack – does not contradict an opinion that plaintiff would have difficulty during a migraine attack. See, AR 468 (noting that plaintiff was not experiencing migraine symptoms during Dr. Coe’s evaluation). Based on the foregoing, the ALJ erred in finding that Dr. Coe and Dr. Hurley’s opinions were undermined by Dr. Coe’s examination findings. 3. Contradicting Treatment Notes The ALJ also determined that these opinions were unpersuasive because treatment notes show plaintiff does not have difficulty standing or walking and the notes indicate that plaintiff had improving symptoms of vertigo. AR 23. The ALJ cites to three treatment notes as indicating that plaintiff’s symptoms were stable and improving. AR

23 (citing AR 480, 481, 508). In its response brief, the Commissioner argues that additional treatment notes in the record support the ALJ’s finding that Dr. Coe and Dr. Hurley’s opinions are unpersuasive. AR 11. However, the Court must review the ALJ’s decision based on the reasoning and factual findings actually offered by the ALJ. Bray v. Commissioner of Social Security Admin., 554 F.3d 1219, 1225 (9th Cir. 2009). Accordingly, the Court’s analysis is limited to the reasons actually provided by the ALJ. The ALJ cited two treatment notes from April 2019 that stated that plaintiff’s “migraines may be fairly under control” and that plaintiff’s symptoms were “stable.” AR 480-81. However, these same treatment notes indicate that plaintiff’s headaches were

worsening, have increased in the previous weeks, that plaintiff reported experiencing more light sensitivity and experienced more frequently reoccurring dizziness. AR 480. The treatment notes indicate that plaintiff suffered from daily migraines of varying severity, and dizziness. AR 481. Accordingly, while the cited treatment notes include statements that plaintiff’s symptoms were stable, the treatment notes indicate severe migraines, dizziness and vertigo, not improving symptoms. The ALJ cited treatment notes from October 2019 stating that plaintiff was “negative for arthralgias” as evidence of improving symptoms. AR 508. It is not clear from the ALJ’s conclusion how a negative finding of arthralgias in a musculoskeletal evaluation undermines findings based on lumbar spine pain, migraines, and vertigo. AR 508. Additionally, this same treatment note indicated that plaintiff reported suffering from headaches and lightheadedness. AR 508. Based on the foregoing, the ALJ erred; the ALJ’s finding -- that Dr. Coe and Dr. Hurley’s opinions were contradicted by the cited treatment notes -- is not supported by

substantial evidence. 4. Activities of Daily Living Finally, the ALJ cited to treatment notes from November 2018 from Olympic Sports & Spine as contradicting the opinions of Dr. Coe and Dr. Hurley. AR 23 (citing AR 448-50). The ALJ explained that in these notes “the claimant stated that he liked to do strenuous workouts at the gym, and he also reported he was doing 10+ hour workdays as a convenience store clerk.” AR 23. The ALJ stated that this note is from November 2018 and plaintiff associated his symptoms with working out and his job. AR 23. The ALJ also pointed out that plaintiff was able to lift up to 40 pounds helping friends

move. AR 23. The ALJ found that this was inconsistent with Dr. Coe and Dr. Hurley’s opined limitations. AR 23. Inconsistencies between a physician’s opinion and a claimant’s activities are sufficiently specific and legitimate reasons to discount the physician’s opinion. Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). In this case, the ALJ’s summary of the cited treatment notes is not an accurate statement of the symptoms and activities alleged in the treatment notes. First, the notes indicate that plaintiff attributed the current onset of symptoms to strenuous activities like working out or working as a convenience store clerk with 10+ hour days. AR 448. However, the note indicates that at the time of the evaluation plaintiff was unable to work due to his constant dizziness. AR 448. Plaintiff also reported experiencing constant dizziness even while laying down. AR 448, 450. Plaintiff further reported that he experienced daily neck problems that were made worse with movement. AR 450. The treatment notes cited by the ALJ’s decision did not state that plaintiff could

lift up to 40 pounds. AR 450. The note actually stated that plaintiff attempted to lift 30-40 pounds while helping a friend move, but this activity caused head and neck pain so severe that plaintiff had to take muscle relaxers and lay down. AR 450. Plaintiff reported that the pain went away within four hours. AR 450. The records cited by the ALJ indicate that plaintiff attributed his symptom onset to activities of daily living. The records indicate that plaintiff attempted to work and attempted to help a friend move. However, the notes state that due to the severity of plaintiff’s symptoms, plaintiff stopped these activities over six months before Dr. Coe’s consultative physical evaluation.

Accordingly, the ALJ erred; the finding that plaintiff’s records from Olympic Sports & Spine undermine Dr. Coe and Dr. Hurley’s opinions is unsupported by substantial evidence. 5. Harmless Error Harmless error principles apply in the Social Security context. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless only if it is not prejudicial to the claimant or “inconsequential” to the ALJ’s “ultimate nondisability determination.” Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); see Molina, 674 F.3d at 1115. The determination as to whether an error is harmless requires a “case-specific application of judgment” by the reviewing court, based on an examination of the record made “‘without regard to errors’ that do not affect the parties’ ‘substantial rights.’” Molina, 674 F.3d at 1118-19 (quoting Shinseki v. Sanders, 556 U.S. 396, 407 (2009)). The ALJ’s error in evaluating the opinions of Dr. Coe and Dr. Hurley are not

harmless error, because if the ALJ had properly evaluated these doctors’ opinions there would potentially have been a more restrictive RFC. Accordingly, a proper evaluation of the medical opinion evidence could change the ALJ’s hypotheticals provided to the Vocational Expert, and the RFC. B. Plaintiff’s Testimony Plaintiff contends the ALJ erred in discounting plaintiff’s symptom testimony. Dkt. 10 at 11-16. The ALJ discounted plaintiff’s symptom testimony as inconsistent with the medical evidence in the record. AR 23. The ALJ also cited to the records from Olympic

Sports & Spine as undermining plaintiff’s testimony. AR 23. The Court has already determined there was not substantial evidence to support the ALJ’s evaluation of the medical opinions. Remand for additional proceedings is required in this action. The re-evaluation of medical evidence in the record may affect the ALJ’s assessment of the plaintiff’s testimony and RFC. Accordingly, the Court will not address this issue. On remand the ALJ must re-evaluate the medical opinions of the doctors discussed above. The ALJ will then need to re-assess plaintiff’s symptom testimony. C. Remand for Further Proceedings Generally, when the Social Security Administration commits harmful error concerning the claimant’s appeal of a denial of their application, “‘the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.’” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citations

omitted). After concluding that an ALJ has harmfully erred when considering medical evidence or plaintiff’s testimony, the Court next should “turn to the question whether further administrative proceedings would be useful.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014) (citations omitted). When looking at this issue, the Court should consider if the record is free from relevant conflicts. See id. Based on a review of the record, the Court concludes that the record is not free of ambiguity, such as conflicts in the medical evidence. Therefore, this matter should be reversed for further administrative proceedings, including a de novo hearing.

Based on the foregoing discussion, the Court concludes the ALJ improperly determined plaintiff to be not disabled. Therefore, the ALJ’s decision is reversed and remanded for further administrative proceedings. On remand, the Commissioner shall allow plaintiff a de novo hearing, take additional evidence as necessary to fully clarify the record, must reconsider the opinion of Dr. Coe, reconsider the July 2019 opinion of Dr. Hurley, evaluate plaintiff’s statements about symptoms and limitations, and re-evaluate plaintiff’s RFC to determine whether plaintiff does, or does not, meet the criteria for establishing a

disability for which benefits should be awarded. Dated this 27th day of December, 2021. A Theresa L. Fricke United States Magistrate Judge