1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Jennifer Oswalt, No. CV-20-00556-TUC-JGZ
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 On June 30, 2022, Magistrate Judge D. Thomas Ferraro issued a Report and 16 Recommendation (R&R) recommending that the Court vacate the Commissioner’s final 17 decision denying Plaintiff Jennifer Oswalt’s application for Social Security disability 18 benefits and remand the case for further administrative proceedings. (Doc. 25.) On July 13, 19 2022, the Commissioner filed an Objection to the Report and Recommendation. (Doc. 27.) 20 Oswalt timely responded. (Doc. 28.) After reviewing the Report and Recommendation and 21 considering the arguments raised in the Commissioner’s Objection, the Court will overrule 22 the Objection and adopt Judge Ferraro’s Recommendation. 23 STANDARD OF REVIEW 24 When reviewing a Magistrate Judge’s R&R, this Court “may accept, reject, or 25 modify, in whole or in part, the findings or recommendations made by the magistrate 26 judge.” 28 U.S.C. § 636(b)(1). “[T]he district judge must review the magistrate judge’s 27 findings and recommendations de novo if objection is made, but not otherwise.” United 28 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). District courts are 1 not required to conduct “any review at all . . . of any issue that is not the subject of an 2 objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also 28 U.S.C. § 636(b)(1); Fed. 3 R. Civ. P. 72. Further, a party is not entitled as of right to de novo review of evidence or 4 arguments which are raised for the first time in an objection to the R&R, and the Court’s 5 decision to consider newly-raised arguments is discretionary. Brown v. Roe, 279 F.3d 742, 6 744 (9th Cir. 2002); United States v. Howell, 231 F.3d 615, 621–22 (9th Cir. 2000). 7 BACKGROUND 8 The parties do not object to the Magistrate Judge’s summary of the factual and 9 procedural background. (Doc. 25 at 1–6.) Therefore, the Court does not restate the facts 10 here and instead includes the relevant facts in its discussion of the issues presented. 11 DISCUSSION 12 The Commissioner objects to the Magistrate Judge’s conclusions that the 13 Administrative Law Judge (ALJ) erred in (1) evaluating the objective medical evidence 14 concerning Oswalt’s narcolepsy and (2) discounting Oswalt’s subjective complaints about 15 her narcolepsy-related symptoms. (Doc. 27.) The Commissioner argues that the ALJ did 16 not err in evaluating the objective medical evidence and reasonably found that Oswalt was 17 less limited from narcolepsy than she alleged. (Id. at 3.) The Commissioner asserts that the 18 ALJ did not err in discounting Oswalt’s symptom testimony because it was inconsistent 19 with several objective factors. (Id.) The Court will address the Objections in turn.1 20 I. ALJ’s Analysis of Objective Medical Evidence 21 The Magistrate Judge concluded that the ALJ erred in her analysis of the objective 22 medical evidence when she reasoned that Oswalt’s normal MRI, EEGs and alertness at 23 examinations were inconsistent with the alleged severity of Oswalt’s narcolepsy. (Doc. 25 24 at 9.) The R&R notes that the ALJ’s analysis was directly contrary to the Evaluation of 25 Narcolepsy guidance provided in Program Operations Manual System (POMS) DI 26 24580.005, without any explanation as to the difference.2 (Id.) The guidance provides that: 27 1 The Court acknowledges the appropriate standard of review of the Commissioner’s final 28 decision is that set forth in the R&R. (Doc. 25 at 6–7.) 2 POMS do not create a judicially enforced duty on either courts or ALJs; they are agency 1 “There are no physical abnormalities in narcolepsy, and with the exception of sleep studies, 2 laboratory studies will be normal. . . . Once awakened, the narcoleptic patient is alert. . . . 3 It is not necessary to obtain an electroencephalogram (EEG) in narcolepsy cases. A routine 4 EEG is usually normal.” POMS DI 24580.005(B)–(C). 5 The Commissioner argues that “no error under the POMS occurred” because the 6 guidance “simply explains how objective medical findings typically appear in narcolepsy 7 cases,” and other factors are relevant to the determination of severity. (Doc. 27 at 2.) The 8 Commissioner asserts that the ALJ agreed that narcolepsy was one of Oswalt’s medically 9 determinable severe impairments, then addressed the impact of narcolepsy based on the 10 sum total of the evidence, reasonably finding Oswalt less limited from narcolepsy than 11 alleged. (Id. at 2–3.) 12 The Commissioner’s argument is unavailing. While correct that the POMS explains 13 how objective medical findings typically appear, the Commissioner does not address the 14 fact that the ALJ relied on test results consistent with narcolepsy as evidence that Oswalt’s 15 narcolepsy was not disabling. The ALJ stated “despite having normal EEG studies, the 16 claimant continued to endorse losing blocks of time and a decline in memory. . . . Similar 17 to previous diagnostic tests, the MRI came back normal. . . . This undermines the 18 persuasiveness of claimant’s subjective allegations.” (AR 21, emphasis added.)3 Normal 19 MRI and EEG results are expected in a patient with narcolepsy, and the ALJ provided no 20 justification for departing from the POMS guidance to conclude that Oswalt’s test results 21 undermined her allegations. Additionally, the Commissioner fails to address the fact that 22 one of the “normal” EEGs that the ALJ relied on showed two “brief jerking movements,” 23 consistent with hypnopompic jerk or sleep related movements. (AR 21, 855–56.) 24 Further the ALJ reasoned that Oswalt’s reported fatigue and excessive daytime 25 somnolence were “inconsistent with objective findings where treating physicians and 26 interpretations entitled to respect when they have the power to persuade. Lockwood v. 27 Comm’r Social Sec. Admin., 616 F.3d 1068, 1073 (9th Cir. 2010). 3 The Administrative Record (AR) is found at Doc. 18. The Court cites to documents 28 contained in the Record using the bates numbers found on the bottom right corner of the documents. 1 medical staff have routinely described the claimant’s mentation as alert and oriented during 2 examinations.” (AR 21.) The Commissioner argues that “the ALJ could reasonably 3 consider the objective findings of alertness, orientation, and good attention/concentration” 4 as a factor inconsistent with the alleged severity of Oswalt’s narcolepsy. However, it is not 5 reasonable to conclude that a patient’s alertness during a brief doctor’s appointment or 6 exam is evidence that narcolepsy is not present or severe, especially when the POMS 7 guidance explains that an awake narcoleptic patient will present as alert. Again, the ALJ 8 provided no justification for interpreting the objective medical evidence contrary to the 9 POMS guidance. 10 In sum, the Court agrees with the Magistrate Judge that the ALJ erred in concluding 11 that Oswalt’s MRI, EEGs, and alertness at exams undermined the severity of her 12 narcolepsy. Thus, the ALJs factual findings interpreting the objective medical evidence are 13 not supported by substantial evidence.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Jennifer Oswalt, No. CV-20-00556-TUC-JGZ
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 On June 30, 2022, Magistrate Judge D. Thomas Ferraro issued a Report and 16 Recommendation (R&R) recommending that the Court vacate the Commissioner’s final 17 decision denying Plaintiff Jennifer Oswalt’s application for Social Security disability 18 benefits and remand the case for further administrative proceedings. (Doc. 25.) On July 13, 19 2022, the Commissioner filed an Objection to the Report and Recommendation. (Doc. 27.) 20 Oswalt timely responded. (Doc. 28.) After reviewing the Report and Recommendation and 21 considering the arguments raised in the Commissioner’s Objection, the Court will overrule 22 the Objection and adopt Judge Ferraro’s Recommendation. 23 STANDARD OF REVIEW 24 When reviewing a Magistrate Judge’s R&R, this Court “may accept, reject, or 25 modify, in whole or in part, the findings or recommendations made by the magistrate 26 judge.” 28 U.S.C. § 636(b)(1). “[T]he district judge must review the magistrate judge’s 27 findings and recommendations de novo if objection is made, but not otherwise.” United 28 States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc). District courts are 1 not required to conduct “any review at all . . . of any issue that is not the subject of an 2 objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985); see also 28 U.S.C. § 636(b)(1); Fed. 3 R. Civ. P. 72. Further, a party is not entitled as of right to de novo review of evidence or 4 arguments which are raised for the first time in an objection to the R&R, and the Court’s 5 decision to consider newly-raised arguments is discretionary. Brown v. Roe, 279 F.3d 742, 6 744 (9th Cir. 2002); United States v. Howell, 231 F.3d 615, 621–22 (9th Cir. 2000). 7 BACKGROUND 8 The parties do not object to the Magistrate Judge’s summary of the factual and 9 procedural background. (Doc. 25 at 1–6.) Therefore, the Court does not restate the facts 10 here and instead includes the relevant facts in its discussion of the issues presented. 11 DISCUSSION 12 The Commissioner objects to the Magistrate Judge’s conclusions that the 13 Administrative Law Judge (ALJ) erred in (1) evaluating the objective medical evidence 14 concerning Oswalt’s narcolepsy and (2) discounting Oswalt’s subjective complaints about 15 her narcolepsy-related symptoms. (Doc. 27.) The Commissioner argues that the ALJ did 16 not err in evaluating the objective medical evidence and reasonably found that Oswalt was 17 less limited from narcolepsy than she alleged. (Id. at 3.) The Commissioner asserts that the 18 ALJ did not err in discounting Oswalt’s symptom testimony because it was inconsistent 19 with several objective factors. (Id.) The Court will address the Objections in turn.1 20 I. ALJ’s Analysis of Objective Medical Evidence 21 The Magistrate Judge concluded that the ALJ erred in her analysis of the objective 22 medical evidence when she reasoned that Oswalt’s normal MRI, EEGs and alertness at 23 examinations were inconsistent with the alleged severity of Oswalt’s narcolepsy. (Doc. 25 24 at 9.) The R&R notes that the ALJ’s analysis was directly contrary to the Evaluation of 25 Narcolepsy guidance provided in Program Operations Manual System (POMS) DI 26 24580.005, without any explanation as to the difference.2 (Id.) The guidance provides that: 27 1 The Court acknowledges the appropriate standard of review of the Commissioner’s final 28 decision is that set forth in the R&R. (Doc. 25 at 6–7.) 2 POMS do not create a judicially enforced duty on either courts or ALJs; they are agency 1 “There are no physical abnormalities in narcolepsy, and with the exception of sleep studies, 2 laboratory studies will be normal. . . . Once awakened, the narcoleptic patient is alert. . . . 3 It is not necessary to obtain an electroencephalogram (EEG) in narcolepsy cases. A routine 4 EEG is usually normal.” POMS DI 24580.005(B)–(C). 5 The Commissioner argues that “no error under the POMS occurred” because the 6 guidance “simply explains how objective medical findings typically appear in narcolepsy 7 cases,” and other factors are relevant to the determination of severity. (Doc. 27 at 2.) The 8 Commissioner asserts that the ALJ agreed that narcolepsy was one of Oswalt’s medically 9 determinable severe impairments, then addressed the impact of narcolepsy based on the 10 sum total of the evidence, reasonably finding Oswalt less limited from narcolepsy than 11 alleged. (Id. at 2–3.) 12 The Commissioner’s argument is unavailing. While correct that the POMS explains 13 how objective medical findings typically appear, the Commissioner does not address the 14 fact that the ALJ relied on test results consistent with narcolepsy as evidence that Oswalt’s 15 narcolepsy was not disabling. The ALJ stated “despite having normal EEG studies, the 16 claimant continued to endorse losing blocks of time and a decline in memory. . . . Similar 17 to previous diagnostic tests, the MRI came back normal. . . . This undermines the 18 persuasiveness of claimant’s subjective allegations.” (AR 21, emphasis added.)3 Normal 19 MRI and EEG results are expected in a patient with narcolepsy, and the ALJ provided no 20 justification for departing from the POMS guidance to conclude that Oswalt’s test results 21 undermined her allegations. Additionally, the Commissioner fails to address the fact that 22 one of the “normal” EEGs that the ALJ relied on showed two “brief jerking movements,” 23 consistent with hypnopompic jerk or sleep related movements. (AR 21, 855–56.) 24 Further the ALJ reasoned that Oswalt’s reported fatigue and excessive daytime 25 somnolence were “inconsistent with objective findings where treating physicians and 26 interpretations entitled to respect when they have the power to persuade. Lockwood v. 27 Comm’r Social Sec. Admin., 616 F.3d 1068, 1073 (9th Cir. 2010). 3 The Administrative Record (AR) is found at Doc. 18. The Court cites to documents 28 contained in the Record using the bates numbers found on the bottom right corner of the documents. 1 medical staff have routinely described the claimant’s mentation as alert and oriented during 2 examinations.” (AR 21.) The Commissioner argues that “the ALJ could reasonably 3 consider the objective findings of alertness, orientation, and good attention/concentration” 4 as a factor inconsistent with the alleged severity of Oswalt’s narcolepsy. However, it is not 5 reasonable to conclude that a patient’s alertness during a brief doctor’s appointment or 6 exam is evidence that narcolepsy is not present or severe, especially when the POMS 7 guidance explains that an awake narcoleptic patient will present as alert. Again, the ALJ 8 provided no justification for interpreting the objective medical evidence contrary to the 9 POMS guidance. 10 In sum, the Court agrees with the Magistrate Judge that the ALJ erred in concluding 11 that Oswalt’s MRI, EEGs, and alertness at exams undermined the severity of her 12 narcolepsy. Thus, the ALJs factual findings interpreting the objective medical evidence are 13 not supported by substantial evidence. This error was not harmless, because error regarding 14 the severity of Oswalt’s narcolepsy was material to the ALJ’s finding that her narcolepsy 15 was not disabling. See Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020). 16 II. ALJ’s Decision to Discount Oswalt’s Symptom Testimony 17 The Magistrate Judge concluded that the ALJ erred by failing to provide specific, 18 clear, and convincing reasons for disregarding Oswalt’s symptom testimony. (Doc. 25 19 at 12.) The Commissioner argues that the ALJ’s analysis complied with regulations in 20 20 C.F.R. § 404.1529(c) and appropriately relied on reports of improvement with 21 medication, alertness, lack of corroboration from Oswalt’s fiancé, Oswalt’s driving, and 22 her daily activities. (Doc. 27 at 3.) The Commissioner asserts that “all of these factors were 23 inconsistent with the degree of debilitation Plaintiff alleged,” and that any one is a 24 sufficient independent basis for discounting Oswalt’s testimony. (Id.) 25 A two-step analysis is required to discredit a claimant’s testimony; first, the ALJ 26 must determine if the claimant presents objective medical evidence of an impairment that 27 could reasonably be expected to produce the alleged symptoms, though objective evidence 28 of the symptoms or their severity is not required. Trevizo v. Berryhill, 871 F.3d 664, 678 1 (9th Cir. 2017); Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). Next, if there is 2 no evidence of malingering, the ALJ must offer specific, clear, and convincing reasons for 3 rejecting the claimant’s symptom testimony by pointing to specific facts in the record; 4 general findings are insufficient. Garrison, 759 F.3d at 1014–15; Burrell v. Colvin, 775 5 F.3d 1133, 1138 (9th Cir 2014). 6 The Magistrate Judge thoroughly addressed the Commissioner’s arguments in the 7 R&R, explaining how each factor was not a clear and convincing reason for rejecting 8 Oswalt’s testimony about the severity of her symptoms. (Doc. 25 at 11–12.) The Magistrate 9 Judge stated that the ALJ pointed to Oswalt’s improvement with medication but did not 10 acknowledge that its effects would only last 3–4 hours and a second dose would cause a 11 migraine “98% of the time.” (AR 46–48.) As discussed above, Oswalt’s alertness for the 12 limited duration of a medical exam is not in conflict with her testimony. The Magistrate 13 Judge stated that the ALJ’s reliance on the fact that Oswalt’s fiancé had not witnessed any 14 unresponsive staring spells was insufficient because it was unclear how much time he had 15 spent with Oswalt in the month he had been with her. The Magistrate Judge noted that the 16 ALJ placed weight on the fact that Oswalt held an active driver’s license and “continues to 17 drive,” as evidence that her symptoms were not debilitating, despite Oswalt’s testimony 18 that she only drove when “absolutely necessary,” some two or three times a month and 19 would pull over when she received an “overpowering” warning that she was about to fall 20 asleep. (AR 21, 47–48.) Finally, the Magistrate Judge concluded that Oswalt’s daily 21 activities are not inconsistent with the alleged severity of Oswalt’s symptoms because the 22 activities build in rest and allow for Oswalt to fall asleep as needed. (AR 22–23, 51.) See 23 Garrison, 759 F.3d at 1016 (“ALJs must be especially cautious in concluding that daily 24 activities are inconsistent with testimony about pain, because impairments that would 25 unquestionably preclude work and all the pressures of a workplace environment will often 26 be consistent with doing more than merely resting in bed all day.”). 27 The Court agrees with the Magistrate Judge’s analysis and conclusions that none of 28 the factors relied on by the ALJ provided a sufficient basis for rejecting Oswalt’s testimony. Thus, the ALJ erred by failing to provide specific, clear, and convincing reasons for || discrediting Oswalt’s symptom testimony. The Court finds that this error was not harmless because if the ALJ were to fully credit Plaintiff's testimony as to the severity of her 4|| symptoms, the final decision could be different. 5 Accordingly, the Court will overrule the Commissioner’s Objection and adopt the R&R. 7 IT IS HEREBY ORDERED: 8 1. The Commissioner’s Objection (Doc. 27) is OVERRULED. 9 2. Magistrate Judge Ferraro’s Report and Recommendation (Doc. 25) is 10 ACCEPTED and ADOPTED. 1] 3. The ALJ’s Decision, which became the Commissioner’s Final Decision, is 12 REVERSED. 13 4. This case is REMANDED to the Social Security Commissioner. On remand, 14 the Appeals Council shall remand this matter to the ALJ. The ALJ shall take any 15 action necessary for resolution of this matter, including conducting any 16 necessary hearings and taking any new evidence. After any necessary 17 proceedings, the ALJ shall issue a new decision consistent with this Order. 18 5. The Clerk of Court shall enter judgment accordingly and close its file in this 19 action. 20 Dated this 12th day of September, 2022. 21 22 □ 23 pote Soipe Honorable Jennife □□□□□ United States District Judge 25 26 27 28
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