1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 9 Plaintiff, CaseNo.C19-177-MLP 10 v. ORDER 12 Defendant. 13 I. INTRODUCTION 14 Plaintiff seeks review of the denial of her application for Disability Insurance Benefits. 15 Plaintiff contends the administrative law judge (“ALJ”) erred in evaluating the medical evidence; 16 discounting statements by Plaintiff and three lay witnesses; and assessing Plaintiff’s residual 17 functional capacity (“RFC”).(Dkt. #16.)As discussed below, the Court REVERSES the 18 Commissioner’s final decision and REMANDS the matter for further administrative 19 proceedings. 20 II. BACKGROUND 21 Plaintiff was born in 1977, completed two years of college, and has worked as a title 22 clerk, telemarketer, receptionist, production worker, machine operator, fork lift operator, and in 23 1 customer service. AR at 332-33, 338, 397. Plaintiff was last gainfully employed in 2008. Id. at 2 332. 3 On January 27, 2010, Plaintiff applied for benefits, alleging disability as of July 1, 2008. 4 AR at 323. Plaintiff’s application was denied initially and on reconsideration, and Plaintiff 5 requested a hearing. Id.at 118, 119, 168-69. After ALJ Glenn G. Meyers conducted hearings on
6 February 23, 2012 and June 12, 2012, the ALJ issued a decision finding Plaintiff not disabled. Id. 7 at 34-84, 120-132. The matter was subsequently remanded by the Appeals Council. Id. at 140- 8 43. ALJ Meyers conducted athirdhearing on January 22, 2015,and issued a decision finding 9 Plaintiff not disabled. Id. at 11-23. The Appeals Counsel declined review and Plaintiff appealed 10 the final decision of the Commissioner to the United States District Court for the Western 11 District of Washington. Id. at 1-4. The Honorable Karen L. Strombom issued an order reversing 12 ALJ Meyers’ decision,and remanding the matter for further administrative proceedings. Id. at 13 1133-42. ALJ Virginia Robinson conductedPlaintiff’s fourthhearing on June 8, 2018 and issued 14 a decision finding Plaintiff not disabled. Id. at 1040-52.
15 Utilizing the five-step disability evaluation process,1 the ALJ found: 16 Step one: Plaintiff didnot engagein substantial gainful activity during the period from her alleged onset date of July 1, 2008 through her date last insured of December 31, 17 2012. 18 Step two: Plaintiff has the following severe impairments: lumbar spine degenerative disc disease; fibromyalgia; sleep apnea; obesity; migraine headaches; learning disorder; 19 affective disorders (bipolar disorder and depression); anxiety disorders (anxiety, social phobia, agoraphobia, and panicdisorder); impulse control disorder; pain disorder; and 20 personality disorders (personality disorder, borderline personality characteristics,and B traits) (20 CFR 404.1520(c)). 21 Step three: These impairments do not meet or equal the requirements of a listed 22 impairment.2 23 120 C.F.R. § 404.1520. 220 C.F.R. Part 404, Subpart P. Appendix 1. 1 Residual Functional Capacity: through the date last insured, Plaintiff could perform light workas defined in 20 CFR 404.1567(b)with limitations. She could lift and carry up to 2 twenty pounds occasionally and up to ten pounds frequently; she could stand and walk for approximately six hours and sit for approximately six hours per eight-hour workday 3 with normal breaks; she could occasionally stoop, kneel, crouch, and crawl; she has limited to simple routine tasks, in a routine work environment with simple work related 4 decisions; and she was limited to only superficial interaction with coworkers and occasional superficial or incidental interactions with the public. 5 Step four: Through the date last insured, Plaintiff was unableperform past relevant work. 6 Step five: As there are jobs that exist in significant numbers in the national economy that 7 Plaintiff can perform, Plaintiff is not disabled. 8 AR at 1040-52. 9 As the Appeals Council denied Plaintiff’s request for review, the ALJ’s decision is the 10 Commissioner’s final decision. AR at 1-6.Plaintiff appealed the final decision of the 11 Commissioner to this Court.(Dkt. # 16.) 13 Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of social 14 security benefits when the ALJ’s findings are based on legal error or not supported by substantial 15 evidence in the record as a whole. Bayliss v. Barnhart,427 F.3d 1211, 1214 (9th Cir. 2005).As a 16 general principle, an ALJ’s error may be deemed harmless where it is “inconsequential to the 17 ultimate nondisability determination.”Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) 18 (cited sources omitted). The Court looks to “the record as a whole to determine whether the error 19 alters the outcome of the case.” Id. 20 “Substantial evidence” is more than a scintilla, less than a preponderance, and is such 21 relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 22 Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th 23 Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in medical 1 testimony, and resolving any otherambiguities that might exist. Andrews v. Shalala, 53 F.3d 2 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may 3 neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Thomas v. 4 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one 5 rational interpretation, it is the Commissioner’s conclusion that must be upheld. Id.
7 A. PriorRemand Order 8 As discussed above, this matter was previously remanded for a fourth administrative 9 hearing by this Court. AR at 1133-42.Judge Strombom found the ALJ’s evaluation of the 10 opinion evidence of Kristin Young, PA-C constituted reversible error, and therefore also 11 reversed theALJ’s assessment of Plaintiff’s RFC and step five finding. Id. at 1134. The Court 12 declined to reach the remaining assignments of error. 13 Despite the Court not reaching the other alleged errors, ALJ Robinson found that Judge 14 Strombom had affirmed ALJ Meyers’ evaluation of Plaintiff’s subjective symptom testimony
15 and his evaluation of Dr. Picco and Chiropractor Jeffrey’s opinion evidence. Id. at 1047-48. 16 Plaintiff argues ALJ Robinson erred by findingthat Judge Strombom’s remandorder affirmed 17 Plaintiff’s subjective symptom testimony and the evaluation of Dr. Picco and Chiropractor 18 Jeffrey’s opinion, andalso byincorporating the analysis of the ALJ Meyers’ vacated decision 19 regarding those alleged errors.3 (Dkt. # 16 at 5-6.) Plaintiff further argues the ALJ should have 20 instead re-evaluated all the evidence. (Id. at 6.) 21 22 3Plaintiff has not cited to any binding authority, and the Court is aware of none, that bars the ALJ from adopting and incorporating assessments from a prior vacated ALJ’s decision which were not reversed by 23 a remand order. The Court finds no error in ALJ Robinson adopting and incorporating parts of ALJ Meyers’ decision that were not specifically reversed by Judge Strombom’s order. 1 As noted above, the Court finds that Judge Strombom’s order only addressedthe ALJ’s 2 evaluation of Ms. Young’s opinion evidence, and any implications that error hadon the RFC 3 determination and step five findings. Because the other assignments of error have not been ruled 4 on, the Court will consider each of Plaintiff’s alleged errors raised on appeal (dkt. # 16 at 1.). 5 B. The ALJ Erred in Evaluating Plaintiff’s Testimony
6 1. Legal Standards for Evaluating Plaintiff’s Testimony 7 It is the province of the ALJ to determine what weight should be afforded to a claimant’s 8 testimony, and this determination will not be disturbed unless it is not supported by substantial 9 evidence. A determination of whether to accept a claimant’s subjective symptom testimony 10 requires a two-step analysis. 20 C.F.R. §§404.1529, 416.929; Smolenv. Charter,80 F.3d 1273, 11 1281(9th Cir. 1996). First, the ALJ must determine whether there is a medically determinable 12 impairment that reasonably could be expected to cause the claimant’s symptoms. 20 C.F.R. §§ 13 404.1529(b), 416.929(b); Smolen, 80 F.3d at 1281-82. Once a claimant produces medical 14 evidence of an underlying impairment, the ALJ may not discredit the claimant’s testimony as to
15 the severity of symptoms solely because they are unsupported by objective medical evidence. 16 Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc); Reddick v. Chater, 157 F.3d 17 715, 722 (9th Cir. 1988). Absent affirmative evidence showing that the claimant is malingering, 18 the ALJ must provide “clear and convincing” reasons for rejecting the claimant’s testimony. 19 Burrell v. Colvin,775 F.3d 1133, 1136-37 (9th Cir. 2014) (citing Molina v. Astrue, 674 F.3d 20 1104, 1112 (9th Cir. 2012)). See alsoLingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 21 2007). 22 When evaluating a claimant’s subjective symptom testimony, the ALJ must specifically 23 identify what testimony is not credible and what evidence undermines the claimant’s complaints; general findings are insufficient.Smolen, 80 F.3d at 1284; Reddick, 157 F.3d at 722. The ALJ 1 may consider “ordinary techniques of credibility evaluation,” including a claimant’s reputation 2 for truthfulness, inconsistencies in testimony or between testimony and conduct, daily activities, 3 work record, and testimony from physicians and third parties concerning the nature, severity, and 4 effect of the alleged symptoms. Thomas,278 F.3d at 958-59 (citingLight v. Social Sec. Admin., 5 119 F.3d 789, 792 (9th Cir. 1997)).
6 The ALJ found Plaintiff’s statements concerning the intensity, persistence, and limiting 7 effects of hersymptoms were not entirely consistent with the evidence in the record. AR at 1046. 8 Specifically, the ALJ found Plaintiff’s allegations of impairments were not consistent with the 9 objective medical evidence or with Plaintiff’s activities of daily living, and that her impairments 10 were effectively controlled with treatment. Id. at 1046-48.The Court will address each reason in 11 turn. 12 2. Inconsistency with the objective medical evidence 13 The ALJ details a number of objective medical findings that she interprets to be 14 inconsistent with Plaintiff’s allegations. AR at 1046-47. With regard to Plaintiff’s physical
15 impairments, Plaintiff alleges she could not work due to back and body pain,fibromyalgia, and 16 migraines. Id. at 331, 375, 390. Plaintiff also alleges she could not sit, stand, or walk for 17 prolonged periods, had difficulty using her hands, and was constantly fatigued and stayed in bed 18 the majority of the day.Id. at 331. The ALJ found the record showed otherwise. Specifically, the 19 ALJ found that physical exam notes duringthe period at issue showed normal gait, normal full 20 5/5 strength, and intact sensation. Id. at 1046 (citing id. at 478, 741-42, 748, 826, 1022). The ALJ 21 also noted that Plaintiff was not receiving treatment for fibromyalgia in August 2009, despite 22 complaints of joint pain resulting from her fibromyalgia, and that she made no dramatic pain 23 complaints during an appointment to establish pain management for her fibromyalgia. Id. at 1046 1 (citing id. at 499, 512). Additionally, the ALJ found physical examinations showed normal range 2 of motion of Plaintiff’s extremities, includingherhands, fingers, wrists, shoulders, ankles, knees, 3 and hips, and that she had no synovitis. Id. (citing id. at 476-79,518, 920, 1019, 1022). 4 Plaintiff argues objective medical evidence of normal findings, such as normal gait and 5 range of motion, as well as full strength and intact sensation, are insufficient to discredit a
6 claimant’s testimony who suffers from fibromyalgia because examinations for this disease can 7 produce normal results. (Dkt. # 16 at 7.) In Revels,the Ninth Circuit provided the following 8 background regarding fibromyalgia and how it should be evaluated in the context of a Social 9 Securityappeal: 10 Fibromyalgiais a rheumatic diseasethat causes inflammation of the fibrous connective tissue components of muscles, tendons, ligaments, and other tissue. 11 Typical symptoms include chronic pain throughout the body, multiple tender points, fatigue, stiffness, and a pattern of sleep disturbancethat can exacerbate the 12 cycle of pain and fatigue. What is unusual about the disease is that those suffering from it have muscle strength, sensory functions, and reflexes that are normal. 13 Their joints appear normal, and further musculoskeletal examinationindicates no objective joint swelling. Indeed, there is an absence of symptoms that a lay person 14 may ordinarily associate with joint and muscle pain. The condition is diagnosed entirely on the basis of the patients’ reports of pain and other symptoms. There 15 are no laboratory tests to confirm the diagnosis. 16 Revels v. Berryhill, 874 F.3d 648, 656-57(9th Cir. 2017) (internal quotations and citations 17 omitted). 18 The Court agrees that the ALJ erred in discounting Plaintiff’s testimony because 19 objective examination results showing normal findings wereinconsistent with Plaintiff’s alleged 20 physical symptoms.The Ninth Circuit has warned against using such findings as a basis to 21 discount thetestimony of claimants diagnosed with fibromyalgia. Seeid.Thus,inconsistency 22 between Plaintiff’s alleged impairments andnormal medical findings was not a sufficient reason 23 to discount Plaintiff’s testimonyregarding her fibromyalgia symptoms. 1 Plaintiff also argues the ALJ erred in discounting Plaintiff’s testimony because she was 2 not being treated for fibromyalgia in 2009, and the lack of dramatic pain complaints during a 3 November 2009 examination. (Dkt. # 16 at 7.) During the November 2009 examination, Plaintiff 4 reported that althoughshe was diagnosed with fibromyalgia in 1994, the only treatment 5 recommendations provided to her were to “live with it” and take ibuprofen. AR at 512-13.The
6 purpose of the November 2009 examination was to establish pain management for Plaintiff’s 7 fibromyalgia, rather than just live with the pain as she had been doing up to that point, including 8 several months prior in August 2009. Id. at 512. Further, while there were no noted “dramatic’ 9 pain complaints during the examination, the examination notes showPlaintiff reportedpain all 10 over her body, increased sensitivity in her extremities, and had an average pain level of 6. Id. at 11 513. 12 With regard to Plaintiff’s migraines, the ALJ noted that she attributed her migraines to 13 stress and birth control, andsubsequently quit her job and stopped birth control. AR at 1046 14 (citing id. at 467-68, 470, 473).4 Although the medical records cited by the ALJ do note that
15 stress and birth control were associated with Plaintiff’s migraines in July 2008, the ALJ does not 16 cite to any evidencethat shows quitting her job and/orstopping birth control alleviated Plaintiff’s 17 migraines. The ALJ’s finding is thus not based on substantial evidence and appears to be 18 speculation. 19 Lastly, the ALJ found medical records postdating Plaintiff’s date last insured did not 20 indicate she was still experiencingmigraines.AR at 1046 (citing id. at 929-32). The ALJ also 21 found that despite allegations of issues with concentration and focus, Plaintiff displayed normal 22 23 4The ALJ cites to AR 470 asdocumentation that Plaintiff quit her job, however, this information is located at AR 469. 1 attention and concentration during consultative evaluations in May 2009 and July 2010 and 2 during examinations. Id. (citing id. at 476-79, 620-26, 942, 957).5 Similarto fibromyalgia, 3 however, migraines cannot be diagnosed with objective tools. McPherson v. Colvin, 2015 WL 4 6692243, at *4 (W.D. Wash. Nov. 2, 2015)(a migrainediagnosis is dependent upon the patient’s 5 description of symptom patterns).Therefore, these findings, without more, arenot clear and
6 convincingreasons, supported by substantial evidence,to discount Plaintiff’s testimony. 7 3. Activities of Daily Living 8 TheALJ found Plaintiff’s activities of daily living were inconsistent with her allegations 9 of disabling functional limitations. AR at 1047. Plaintiff allegedshe was no longer able to 10 crochet or scrapbook, however, the ALJ found her treatment records showed she “enjoyed 11 scrapbooking,crocheting, knitting, painting, and drawing, and that she continued to do a lot of 12 crafts in 2011.” Id.The ALJ also found the record showed that Plaintiff ran her household, was 13 an “enthusiastic” housekeeper, and was theprimary caretaker forher son. Id. at 1047-48. The 14 ALJ further noted that Plaintiff reported her husband usually drove her around due to her
15 anxiety, but her husband works andshe drove her children to school daily during the school year. 16 Id. at 372, 624, 1067. 17 Plaintiff argues the ALJ mischaracterized the record with regard to her activities of daily 18 living. (Dkt. # 16 at 9-10.) Specifically, Plaintiff notes that while Plaintiff reported she enjoys 19 crocheting, she also reported she is “unable to do it constantlydue to the pain [she] 20 experience[s].” (Id.at 9); AR at 374. Plaintiff also notes that while shereported that she keeps 21 her home tidy, the ALJ cited no evidence establishing she didnot receive help from her family in 22 cleaning her home. (Id. at 10.) Plaintiff further notes that both Plaintiff and her husband reported 23 5TheALJ also cited to an examination noteas an example of Plaintiff displaying normal attention and concentration. AR at 1047. Thisrecord, however,does not address Plaintiff’s attention or concentration. 1 that he and their children assistedPlaintiff in performing almost all the household chores. Id. 2 (citing AR at 99-100, 381, 412, 513). Lastly, Plaintiff notes that although Plaintiff stated her 3 husband usually droveher places due to her anxiety, she also stated sheonly drovewhen her 4 husband was not available. (Id.at 10.) 5 The Court agrees that the ALJ mischaracterized Plaintiff’s activities of daily livingby
6 failing to consider her activities in the context of other records and statements regarding 7 Plaintiff’s limited ability to perform those activities.Thus, inconsistencies between Plaintiff’s 8 alleged impairments and her activities of daily living were not a sufficient reason to discount her 9 testimony. 10 4. Impairments Controlled with Treatment 11 Lastly, the ALJ found Plaintiff’s impairments were reasonably controlled with treatment. 12 AR at 1047. With regard to Plaintiff’s mental health impairments, Plaintiff alleged she suffered 13 from bipolar disorder, depression,and anxiety.Id. at 331, 376-77, 1071. The ALJ found clinical 14 notes from a few months beforePlaintiff’s alleged onset date showed herbipolar and depression
15 were well controlled with medication. Id. at 1047 (citing id. at 461.)The ALJ also noted that 16 despite Plaintiff’s mood complaints, she exhibited normal and appropriate mood and affect 17 during mental status exams. Id. (citing id. at 684, 696, 731, 791, 798, 881, 942). 18 Plaintiff argues the ALJ cherry picked the evidence with regard to Plaintiff’s mental 19 impairments, and the Court agrees. (Dkt. # 16 at 8-9.) For example,one of theclinical notes (AR 20 at 461) cited by the ALJ states Plaintiff’s mental impairments were well controlledwith 21 medication,however, it also states her Celexa was not working, and the provider prescribed her 22 new medication, Wellbutrin. Id.at 461. A review of the record shows that clinical notes from 23 Plaintiff’s followingvisit reflect that the new medication caused her to have “increased temper, 1 she was dizzy, she was nauseated and lightheaded. She felt sad and withdrawn. She states she 2 just couldn’t tolerate it so she had to stop it…she now refuses to get on Wellbutrin.” Id. at 462. 3 The ALJ also erroneously citedto assessment records that do not address Plaintiff’s mental 4 impairments or her treatment. Id. at 614, 616. Accordingly, theCourt finds the ALJ improperly 5 cherry-picked the record in finding Plaintiff’s impairments were reasonably controlled with
6 treatment, and thus this is not a sufficient reason, supported by substantial evidence, for 7 discounting Plaintiff’s testimony. 8 In sum, the ALJ erred in discounting Plaintiff’s subjective symptom testimony. Because 9 Plaintiff’s testimony indicates she is more limited than provided in the RFC, this error is not 10 harmless. See Molina, 674 F.3d at 1115.Accordingly, this matter must be remanded for the ALJ 11 to reconsider Plaintiff’s subjective symptom testimony and provide legally sufficient reasons for 12 discounting her testimony, should such a conclusion be warranted. 13 C. The ALJ Erred in Evaluating the Opinion Evidence 14 Plaintiff takes issue with the ALJ’s assessment of, inter alia,the opinions of Dr. Picco,
15 Ms.Young, and Chiropractor Jeffrey.Plaintiff argues that the ALJ’s rejection of theseopinions 16 were based on the same reasons the ALJ provided for discounting Plaintiff’s testimony, and 17 Plaintiff therefore asserts the same arguments she made with regard to the ALJ’s assessment of 18 her testimony. (Dkt. ## 16 at 12-14, 20 at 7.) Specifically,Plaintiff asserts that by citing to 19 inconsistencies between the opinions and the longitudinal treatment history, objective clinical 20 findings, Plaintiff’s activities of daily living, and Plaintiff’s performance on physical exams, the 21 ALJ makes conclusory, boilerplate assertions that do nothing more than ignore the opinions. (Id. 22 at 11-16.) 23 1 1. Dr. Amy Picco 2 As a matter of law, more weight is given to a treating physician’s opinion than to that of a 3 non-treating physician because a treating physician “is employed to cure and has a greater 4 opportunity to know and observe the patient as an individual.” Magallanes, 881 F.2d at 751; see 5 also Orn, 495 F.3d at 631.A treating physician’s opinion, however, is not necessarily conclusive
6 as to either a physical condition or the ultimate issue of disability, and can be rejected, whether 7 or not that opinion is contradicted. Magallanes, 881 F.2d at 751. If an ALJ rejects the opinion of 8 a treating or examining physician, the ALJ must give clear and convincing reasons for doing so 9 if the opinion is not contradicted by other evidence, and specific and legitimate reasons if it is. 10 Reddick, 157 F.3d at 725. “This can be done bysetting out a detailed and thorough summary of 11 the facts and conflicting clinical evidence, stating his interpretation thereof, and making 12 findings.” Id.(citing Magallanes, 881 F.2d at 751). The ALJ must do more than merely state 13 his/her conclusions. “He must set forth his own interpretations and explain why they, rather than 14 the doctors’, are correct.” Id. (citing Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)).
15 Such conclusions must at all times be supported by substantial evidence.Reddick, 157 F.3d at 16 725. 17 In January 2011, Dr.Picco conducted a physical capacity evaluation of Plaintiff. AR at 18 672-75. Dr. Picco opined that Plaintiff was unable to sustain even sedentary work due to pain 19 and fatigue. Id. at 673-74. In his 2015 decision, ALJ Meyers accorded Dr. Picco’s opinion little 20 weight for the following reasons: 1) it is inconsistent with the longitudinal treatment history, 21 objective clinical findings, Plaintiff’s performance on physical exams, and her activities of daily 22 living; 2) it is internally inconsistent with her functional assessment findingPlaintiff can lift and 23 carry ten pounds frequently and twenty pounds occasionally, and that she can sit for more than 1 six hours and stand/walk for two hours in an eight-hour workday; and 3) it is based in part on 2 Plaintiff’s self-report. Id. at 20-21. 3 As a threshold matter, Plaintiff argues that despite the ALJ’s acknowledgment that the 4 prior ALJ assignedlittle weight to Dr. Picco’s opinion, the ALJ did not actually adopt or reject 5 this assignment of weight. (Dkt. # 16 at 12.)Plaintiff further argues the ALJ erred by simply
6 ignoring Dr. Picco’s opinion. (Id.at 14). 7 Plaintiff’s arguments are unpersuasive. ALJ Robinson generally incorporated ALJ 8 Meyers’ discussion and summary of the evidence into the current decision. AR at 1041. 9 Regarding Dr. Picco’s opinion, ALJ Robinson’s decision states: 10 Judge Meyers assigned little weight to the opinions of Ryan Jeffrey, DC, Amy Picco, MD (Exhibits 10F/3 and 21F/2-3). He also assigned little weight to the lay 11 witness statement (including testimony) of Christopher Oliverson, S. Raydeen Jacques, and Lisa Ford (June 2012 Hearing/Transcript, 8E, 16E, 17E, and 18E). I 12 note that the District Court did not disturb Judge Meyer[sic]’s analyses of the lay witness statements. I agree with his assessment of the testimony and statements 13 and incorporate them into the current decision. 14 Id.The Court can draw reasonable inferences from the ALJ’s decision. Thus, although ALJ 15 Robinson’s language regarding incorporating ALJ Meyers’ assessment could be read as only 16 applying to the lay witness statements, a plain reading of the decisionas a whole, and inferences 17 reasonably drawn from the decision, supports her incorporation of ALJ Meyers’ assignment of 18 little weight toDr. Picco opinion.See Magallenes, 881 F.2d at 755.The ALJ’s failure to 19 explicitly include Dr. Picco’s namein the last sentence is not dispositive. Further, ALJ Robinson 20 did not ignore Dr. Picco’s opinion,as she incorporated ALJ Meyers’ detailed assessment of Dr. 21 Picco’s opinion.6 22 6Plaintiff makes the same arguments in asserting ALJ Robinson failed to incorporate ALJ Meyers’ 23 assessment of Chiropractor Jeffrey’s opinion and that in doing so, ignored his opinion. For the same reasons discussed with regard to Dr. Picco, the Court finds ALJ Robinson did incorporate ALJ Meyers’ assignment of little weight to Chiropractor Jeffery’s opinionin the current decision. 1 In givingDr. Picco’s opinion little weight, the ALJ listedthe same reasons provided for 2 discounting Plaintiff’s testimony. AR at 1048 (adopting id. at 21). As discussed above, these 3 reasons are insufficient. Physical examinations showingnormal findings do not disprove 4 Plaintiff’s reported symptoms from her fibromyalgia. The ALJ also mischaracterized the record 5 with regard to Plaintiff’ activities of daily living, and cherry-picked the evidence to find
6 Plaintiff’s symptoms were well controlled with treatment. The ALJ also discounted Dr. Picco’s 7 opinion because it was based, at least in part, on Plaintiff’s subjective testimony. AR at 1048 8 (adopting id.at 21). However, the Court has found the ALJ erred in her evaluation of Plaintiff’s 9 testimony. 10 Lastly, the ALJ found Dr. Picco’s opinion was internally inconsistent with her functional 11 assessment that Plaintiff could carry 10 pounds frequently and 20pounds occasionally, and that 12 she could sit for more than six hours and stand/walk for two hours in an eight-hour day. AR at 13 1048 (adopting id. at 21). The Court finds the ALJ could reasonably find an internal 14 inconsistency in Dr. Picco’s opinion because she opinedPlaintiff’s pain is so disabling that it
15 would prevent her from working even at a sedentary position,however, sheassessed Plaintiff’s 16 function abilities at a level consistent with sedentary work. AR at 674; SSR 83-10, 1983 WL 17 31251(noting that for sedentaryworkperiods of standing or walking should generally total no 18 more than about 2 hours of an 8-hour workday and lifting no more than 10 pounds at a time.). 19 Although there may appear to be an internal inconsistencyin Dr. Picco’s opinion, this alone does 20 not meet the specific and legitimate standard required to discount Dr. Picco’s opinion, especially 21 in light of the other errs made in evaluating the opinion and the unusual diagnostic challenges 22 associated with fibromyalgia. 23 1 The ALJ’s errors regarding Dr. Picco’s must be deemed harmful. Had the ALJ 2 appropriately evaluated this opinion, her nondisability determination may have been different. See 3 Molina, 674 F.3d at 1115.Accordingly, the ALJ should reevaluate Dr. Picco’s opinion on 4 remand. 5 2. The“Other Source” Opinions
6 In order to determine whether a claimant is disabled, an ALJ may consider lay-witness 7 sources, such as testimony by nurse practitioners, physicians’ assistants, and counselors, as well 8 as “non-medical”sources, such as spouses, parents, siblings, and friends.See20 C.F.R. § 9 404.1527(f). Such testimony regarding a claimant’s symptoms or how an impairment affects 10 his/her ability to work is competent evidence, and cannot be disregarded without comment. 11 Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993). This is particularly true for such non- 12 acceptable medical sources as nurses and medical assistants. See Social Security Ruling (“SSR”) 13 06-03p (noting that because such persons “have increasingly assumed a greater percentage of the 14 treatment and evaluation functions previously handled primarily by physicians and
15 psychologists,” their opinions “should be evaluated on key issues such as impairment severity 16 and functional effects, along with the other relevant evidence in the file.”). If an ALJ chooses to 17 discount testimony of a lay witness, he must provide “reasons that are germane to each witness,” 18 and may not simply categorically discredit the testimony. Dodrill, 12 F.3d at 919. 19 a. Ryan Jeffery, DC 20 In May 2010, Chiropractor Jeffrey provided an assessment of Plaintiff. AR at 599. Dr. 21 Jeffrey opined that Plaintiff demonstrated signs of fibromyalgia migraine headaches, and he 22 “[knew] it is difficult for her to work and carry on a full time job because of these conditions.” 23 1 Id. ALJ Meyers gave Chiropractor Jeffrey’s opinion little weight for the same reasons given for 2 discounting Dr. Picco’s opinion. Id.at 20-21. 3 As discussed above, the Court finds inconsistency between Chiropractor Jeffrey’s 4 opinion and thelongitudinal treatment history, the objective medical findings,Plaintiff’s 5 activities of daily living, and Plaintiff’s performance on physical examinations are not specific
6 and germane reasons to give Chiropractor Jeffrey’s opinion little weight. TheALJ also 7 discounted Chiropractor Jeffrey’s opinion because it was based, at least in part, on Plaintiff’s 8 self-reports. AR at 1048 (adopting id. at 21).However, the Court has found the ALJ erred in her 9 evaluation of Plaintiff’s testimony. 10 The ALJ’s errors regarding Chiropractor Jeffrey’s opinion must once again be deemed 11 harmful. Had the ALJ appropriately evaluated this opinion, her nondisability determination may 12 have been different. See Molina, 674 F.3d at 1115. Accordingly, the ALJ should reevaluate 13 Chiropractor Jeffrey’s opinion on remand. 14 b. Kristine Young, PA-C
15 Ms.Young provided two medical opinions regarding Plaintiff’s impairments. AR at 819. 16 In January 2012, she opined Plaintiff was unable to sit, stand, and walk for a total of eight hours 17 a day, and that she had manipulative limitations. Id. at 819-24, 1030-36. In January 2015, Ms. 18 Young opined, inter alia, Plaintiff was unable to sit or stand/walk for two hours a day in an 19 eight-hour workday. Ms. Young also opined Plaintiff required flexibility to alternate positions at 20 will, needed to elevate her legs 50% of the time, and could only rarely lift less than ten pounds. 21 Id. She also opined Plaintiff’s pain and symptoms would interfere with her attention and 22 concentration on simple work tasks and that Plaintiff was incapable of performing even low 23 1 stress jobs. Id. at 1031. Lastly, Ms. Young opined Plaintiff would miss more than four days of 2 work per month due to her impairments. Id. at 1034. 3 The ALJ discountedMs. Young’s January2012 opinionbecauseit was inconsistent with 4 the objective medical evidence. AR at 1049. Specifically, the ALJ found Ms. Young’s opinions 5 regarding Plaintiff’s lift, carry, and manipulation limitations were inconsistent with the minimal
6 findings on examinations.Id.Plaintiff also had no synovitis, showed normal rangeof motion in 7 all extremities, including her hands, fingers, wrists, shoulder, ankles, knees, and hips during 8 examinations. Id. at 476-79, 518, 1019, 1022.As discussed above, inconsistency with the 9 objective medical evidence is not a sufficient reason to discount Ms. Young’s opinion. Normal 10 clinical findings are to be expected with fibromyalgia, and thus this is not a specific and germane 11 reason to discount Ms. Young’s opinion. See Revels, 874 F.3d at 663. 12 The ALJ also discounted Ms. Young’s January 2015 opinion. Specifically, the ALJ found 13 the opinion reflected advocacy by Ms. Young. AR at 1049. The ALJ noted that despite normal 14 objective medical findings, Ms. Young continued to opine Plaintiff had extreme limitations. Id.
15 For example, Ms. Young opined Plaintiff needed to elevate her legs 50% of the time, however, 16 there was no evidence in the record, such as chronic swelling or edema, that would warrant such 17 a finding. Id. Ms. Young herself did not indicate that Plaintiff had subjective swelling in her 18 2015opinion, (id.at 1030), nor did she indicate such in numerous other exams.Although an ALJ 19 is entitled to discount an opinion rendered by a provider in an advocacy role, the ALJ appears to 20 base Ms. Young’s advocacy on the inconsistency of her opinion and the objective medical 21 findings. See Matney ex.rel. Matney v. Sullivan,981 F.2d 1016, 1020 (9th Cir.1992)(affirming 22 an ALJ’s finding that a doctor’s opinionwas “entitled to less weight because he had agreed to 23 1 become an advocateand assist in presenting a meaningful petition for Social Securitybenefits”). 2 This is an insufficient reason to discount Ms. Young’s opinion. 3 The ALJ also discounted Ms. Young’s opinions because they were inconsistent with 4 Plaintiff’s daily activities. As discussed above, the Court has already found the activities cited by 5 the ALJ are not necessarilyinconsistent with Plaintiff’s alleged impairments, given Plaintiff’s
6 testimony regarding the help she receives from other in performing them. In addition to the 7 activities identified by the ALJ in her evaluation of Plaintiff’s testimony, the ALJ cited several 8 other activities, such as shopping, traveling, using public transportation, maintaining her 9 household, and caring for her children, which were reported on a checklist in Ms. Young’s 10 opinion.However, the record does not include any details regarding when and how Plaintiff is 11 able to perform these activities. AR at 824. Inconsistency with Plaintiff’s activities of daily living 12 is therefore not a specific and germane reason to discount Ms. Young’s opinion. 13 The ALJ also discounted Ms. Young’s opinion because it was based, at least in part, on 14 Plaintiff’s self-reports. AR at 21. As discussed above, the ALJ erred in discounting Plaintiff’s
15 symptom complaints and thereforethis is not a specific, germane reason for assigning less 16 weight to Ms. Young’s opinion. 17 Lastly, the ALJ discounted Ms. Young’s January 2015 opinion because it was conducted 18 two years after Plaintiff’s date last insured and did not relate back to the relevant period at issue. 19 AR at 1049. Amedical opinionor evaluation may be relevant even if several years have passed 20 between the datelast insuredand the dateof the examinationbasis. Smith v. Bowen,849 F.2d 21 1222, 1225 (9th Cir. 1988). The mere fact that the opinions were rendered after the datelast 22 insured, without more, is not sufficient ifsuch opinions are still “relevant to assess the claimant’s 23 disability.” Id.Here, the other reasons provided by the ALJ are not specific and germane, and 1 therefore the fact the opinion was rendered after the date last insured is not a sufficient reasonto 2 discount the opinion. 3 Because the ALJ failed to articulate specific and germane reasons to reject Ms. Young’s 4 opinion, theALJ should reevaluate Ms. Young’s January 2012 and June 2015 opinions on 5 remand.
6 c. Christopher Oliverson, S. Raydeen Jaques, and Lisa Ford 7 The ALJ also considered lay witness statements from Plaintiff’s family. AR at 1048. 8 Christopher Oliverson, Plaintiff’s husband, provided a function report, a letter, and testified at 9 the 2012 hearing. Id. at 69-76, 379-86, 412-13. Raydeen Jaques, Plaintiff’s mother, provided a 10 letter. Id. at 415-16. Lisa Ford, Plaintiff’s sister, provided a written statement. Id. at 410. 11 The ALJ discounted the lay witness statements because she found that the observations of 12 each witness were similar to Plaintiff’s own subjectivecomplaints of disability regarding 13 mobility, pain, fatigue, depression, and anxiety. AR at 1048 (adopting id. at 21).Because the 14 ALJ provided no other reason for discounting the statements, andthe Court has already
15 determined this matter must be remanded for the ALJ to reevaluate Plaintiff’s symptom 16 testimony,this was not a specific and germane reason to discount the lay witness statements. 17 Accordingly,the ALJ should also reevaluate the lay witness testimony on remand. 18 D. Remand Requires a Reevaluation of the Analysis at Steps Four and Five 19 Plaintiff argues the ALJ’s RFC determination fails to account for all of Plaintiff’s 20 limitations. (Dkt. # 16 at 16-17.) Plaintiff also argues that the ALJ’s step five findings that there 21 are jobs Plaintiff can perform based on the RFC, which does include these alleged limitations, is 22 defective. (Id. at 17.) 23 1 The Court has already concluded that the ALJ’s erred in evaluating Plaintiff’s testimony 2 and opinion evidence. Therefore, the ALJ must also reassess the RFC on remand.SeeSocial 3 Security Ruling 96-8p (“The RFC assessment must always consider and address medical source 4 opinions.”); Valentine v. Commissioner Social Sec. Admin., 574 F.3d 685, 690(“an RFC that 5 fails to take into account a claimant’s limitations is defective”). As the ALJ must reassess
6 Plaintiff’s RFC on remand, he must also re-evaluate the findings at Step Five to determine if 7 Plaintiff can perform the jobs identified by the vocational expert in light of the new RFC. 8 E. Whether the Case Should be Remanded for an Award of Benefits 9 Plaintiff argues this case should be remanded for an award of benefits. (Dkt. # 16 at 17.) 10 The Court may remand a case “either for additional evidence and findings or to award benefits.” 11 Smolen, 80 F.3d at 1292. Generally, when the Court reverses an ALJ’s decision, “the proper 12 course, except in rare circumstances, is to remand to the agency for additional investigation or 13 explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). 14 Specifically, benefits should be awarded where: (1) the ALJ has failed to provide legally
15 sufficient reasons for rejecting the claimant’s evidence, (2) there are no outstanding issues that 16 must be resolvedbefore a determination of disability can be made, and (3) it is clear from the 17 record that the ALJ would be required to find claimant disabled were such evidence credited. 18 Smolen, 80 F.3d at 1292; McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002). 19 The Court has determined, based on the above identified errors, that several issues remain 20 which must be resolved concerning Plaintiff’s testimony, the medical opinion evidence, and lay 21 witness testimony. Therefore, remand for further administrative proceedings is appropriate. 22 23 2 For the foregoing reasons, the Commissioner’s final decision is REVERSEDand this 3 case is REMANDED for further administrative proceedings under sentence four of 42 U.S.C. § 4 405(g). On remand, the ALJ should reevaluate Plaintiff’s testimony, Dr. Picco’s opinion, 5 Chiropractor Jeffrey’s opinion, Ms. Young’s opinions, the lay witness statements of Plaintiff’s
6 family members, and the analysis at step four and five. 7 Dated this 13th day ofAugust, 2019. 8 A United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23