Priser v. O'Malley

• Court: District Court, E.D. Washington
• Decided: March 11, 2024
• Docket: 4:23-cv-05044
• Status: Unknown

Opinion

1 EASTERUN. SD.I SDTIRSITCRTI COTF CWOAUSRHTI NGTON Mar 11, 2024 2 3 SEAN F. MCAVOY, CLERK 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON

7 JENNIFER P., No. 4:23-CV-05044-ACE

8 Plaintiff, ORDER GRANTING PLAINTIFF’S 9 MOTION 10 v.

11 MARTIN O’MALLEY, ECF Nos. 11, 17 12 COMMISSIONER OF SOCIAL SECURITY,1 13

14 Defendant.

15 BEFORE THE COURT is Plaintiff’s Opening Brief and the 16 Commissioner’s Brief in response. ECF No. 11, 17. Attorney Chad Hatfield 17 represents Jennifer P. (Plaintiff); Special Assistant United States Attorney David J. 18 Burdett represents the Commissioner of Social Security (Defendant). The parties 19 have consented to proceed before a magistrate judge. ECF No. 7. After reviewing 20 the administrative record and the briefs filed by the parties, the Court GRANTS 21 Plaintiff’s Motion, DENIES Defendant’s Motion, and REMANDS the matter to 22 the Commissioner for further proceedings pursuant to 42 U.S.C. § 405(g). 23 JURISDICTION 24 Plaintiff filed applications for Disability Insurance Benefits and 25 Supplemental Security Income on December 30, 2014, alleging disability since 26

27 1 Pursuant to Federal Rule of Civil Procedure 25(d), Martin O’Malley, 28 Commissioner of Social Security, is substituted as the named Defendant. 1 December 16, 2014. Tr. 15, 108, 256-71. The applications were denied initially 2 and upon reconsideration and an Administrative Law Judge (ALJ) held a hearing 3 on January 5, 2018 and issued an unfavorable decision on February 22, 2018. Tr. 4 12-33. The Appeals Council denied the request for review on December 18, 2018, 5 Tr. 1-6, making the ALJ’s decision the Commissioner’s final decision for purposes 6 of judicial review, which is appealable to the district court pursuant to 42 U.S.C. 7 § 405(g). Plaintiff filed for district court review of the case, and in an order dated 8 December 13, 2019, this Court remanded the case for further administrative 9 proceedings. Tr. 1220-39. In an order dated May 8, 2020, the Appeals Council 10 vacated the final decision of the Commissioner and remanded the case to the ALJ. 11 Tr. 1242-43.2 12 On September 2, 2020, Plaintiff appeared before ALJ Marie Palachuk, Tr. 13 1122-48, who issued an unfavorable decision on October 7, 2020. Tr. 1651-78. 14 Plaintiff filed for district court review of the case and in a stipulated remand order 15 dated January 20, 2022, this Court again remanded the case for further 16 administrative proceedings. Tr. 1684-86. In an order dated March 4, 2022, the 17 Appeals Council vacated the final decision of the Commissioner and remanded the 18 case to the ALJ. Tr. 1695-97. On November 10, 2022, Plaintiff appeared before 19 ALJ Palachuk, Tr. 1596-20, who issued another unfavorable decision on February 20 8, 2023. Tr. 1557-88. The Appeals Council did not assume jurisdiction of the 21 case, making the ALJ’s February 2023 decision the final decision of the 22

23 2 The Appeals Council noted Plaintiff filed a subsequent claim for Title II 24 disability benefits in February 2019, but that the remanded claim rendered the 25 subsequent claim duplicate. Tr. 1242. The Appeals Council ordered the ALJ to 26 consolidate the claim files and issue a new decision on the consolidated claims, 27 applying the prior rules for reviewing medical opinion evidence pursuant to 28 HALLEX 1-5-3-30. Id. 1 Commissioner. Plaintiff filed this action for judicial review on April 7, 2023. ECF 2 No. 1. 3 STANDARD OF REVIEW 4 The ALJ is tasked with “determining credibility, resolving conflicts in 5 medical testimony, and resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 6 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 7 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 8 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 9 only if it is not supported by substantial evidence or if it is based on legal error. 10 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 11 defined as being more than a mere scintilla, but less than a preponderance. Id. at 12 1098. Put another way, substantial evidence “is such relevant evidence as a 13 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 14 Perales, 402 U.S. 389, 401 (1971), quoting Consolidated Edison Co. v. NLRB, 305 15 U.S. 197, 229 (1938). If the evidence is susceptible to more than one rational 16 interpretation, the Court may not substitute its judgment for that of the ALJ. 17 Tackett, 180 F.3d at 1098; Morgan v. Comm’r of Social Sec. Admin., 169 F.3d 595, 18 599 (9th Cir. 1999). If substantial evidence supports the administrative findings, or 19 if conflicting evidence supports a finding of either disability or non-disability, the 20 ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1230 (9th 21 Cir. 1987). Nevertheless, a decision supported by substantial evidence will be set 22 aside if the proper legal standards were not applied in weighing the evidence and 23 making the decision. Brawner v. Sec’y of Health and Human Servs., 839 F.2d 432, 24 433 (9th Cir. 1988). 25 SEQUENTIAL EVALUATION PROCESS 26 The Commissioner has established a five-step sequential evaluation process 27 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 28 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 1 four, the claimant bears the burden of establishing a prima facie case of disability 2 benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once a claimant 3 establishes that a physical or mental impairment prevents the claimant from 4 engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If a 5 claimant cannot perform past relevant work, the ALJ proceeds to step five, and the 6 burden shifts to the Commissioner to show (1) that Plaintiff can perform other 7 substantial gainful activity and (2) that a significant number of jobs exist in the 8 national economy which Plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 9 1497-1498 (9th Cir. 1984); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). If 10 a claimant cannot make an adjustment to other work, the claimant will be found 11 disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 12 ADMINISTRATIVE FINDINGS 13 On February 8, 2023, the ALJ issued a decision finding Plaintiff was not 14 disabled as defined in the Social Security Act. Tr. 1557-88. 15 At step one, the ALJ found Plaintiff, who met the insured status 16 requirements of the Social Security Act through December 31, 2019, had not 17 engaged in substantial gainful activity since the alleged onset date. Tr. 1563. 18 At step two, the ALJ determined Plaintiff had the following severe 19 impairments: obesity; fibromyalgia; left trigger thumb, post release; bilateral ulnar 20 nerve transposition; osteoarthritis of the bilateral hands and knees; psoriasis; 21 degenerative joint disease of the left hip, post left hip surgery; sacralization of the 22 L5 vertebra; depressive disorder; anxiety disorder. Id. 23 At step three, the ALJ found Plaintiff did not have an impairment or 24 combination of impairments that met or medically equaled the severity of one of 25 the listed impairments. Tr. 1566. 26 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 27 she could perform light work, with the following limitations:

28 [Plaintiff] is limited to standing/walking only two hours per workday. 1 As a result, [Plaintiff] requires a position where she can alternate 2 positions in order to accommodate for that two-hour limitation. 3 [Plaintiff] can never climb ladders, ropes, or scaffolding, and can occasionally climb ramps and stairs, balance, stoop, kneel, crouch and 4 crawl. [Plaintiff] can frequently reach, handle, finger and feel 5 bilaterally. [Plaintiff] must avoid concentrated exposure to extreme temperatures, humidity, vibration, and respiratory irritants. [Plaintiff] 6 must avoid all exposure to hazards such as unprotected heights and 7 moving dangerous machinery. [Plaintiff] requires a predictable environment with seldom change [sic]. [Plaintiff] can occasionally 8 interact with the public. [Plaintiff] is limited to occasional and 9 superficial interaction (defined as non-collaborative and without 10 tandem tasks) with co-workers. [Plaintiff] can handle occasional interactions with supervisors, but with no “over the shoulder” 11 supervision. 12 13 Tr. 1568. 14 At step four, the ALJ found Plaintiff was unable to perform past relevant 15 work. Tr. 1576. 16 At step five, the ALJ found that, based on the testimony of the vocational 17 expert, and considering Plaintiff’s age, education, work experience, and RFC, 18 Plaintiff could perform jobs that existed in significant numbers in the national 19 economy, including the jobs of small products assembler; production assembler; 20 and subassembler. Tr. 1577. 21 The ALJ thus concluded Plaintiff was not under a disability within the 22 meaning of the Social Security Act at any time from at any time from the alleged 23 onset date through the date of the decision. Tr. 1578. 24 ISSUES 25 Plaintiff seeks judicial review of the Commissioner’s final decision denying 26 him disability insurance benefits under Title II and Title XVI of the Social Security 27 Act. The question presented is whether substantial evidence supports the ALJ’s 28 decision denying benefits and, if so, whether that decision is based on proper legal 1 standards. Plaintiff raises the following issues for review: (1) whether the ALJ 2 properly evaluated the medical opinion evidence; (2) whether the ALJ properly 3 evaluated Plaintiff’s symptom complaints; (3) whether the ALJ conducted a proper 4 step-three analysis; and (4) whether the ALJ conducted a proper step-five analysis. 5 ECF No. 11 at 8. 6 DISCUSSION 7 A. Medical Opinion Evidence 8 Plaintiff contends the ALJ erred by improperly evaluating the medical 9 opinions of Jean You, M.D., and James Opara, M.D. ECF No. 11 at 10-16. 10 For claims filed prior to March 2017, there are three types of physicians: 11 “(1) those who treat the claimant (treating physicians); (2) those who examine but 12 do not treat the claimant (examining physicians); and (3) those who neither 13 examine nor treat the claimant [but who review the claimant’s file] (nonexamining 14 [or reviewing] physicians).” Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th 15 Cir. 2001) (citations omitted). Generally, a treating physician’s opinion carries 16 more weight than an examining physician’s opinion, and an examining physician’s 17 opinion carries more weight than a reviewing physician. Id. at 1202. “In addition, 18 the regulations give more weight to opinions that are explained than to those that 19 are not . . . and to the opinions of specialists concerning matters relating to their 20 specialty over that of nonspecialists.” Id. (citations omitted). 21 If a treating or examining physician’s opinion is uncontradicted, the ALJ 22 may reject it only by offering “clear and convincing reasons that are supported by 23 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); 24 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “If a treating or examining 25 doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only 26 reject it by providing specific and legitimate reasons that are supported by 27 substantial evidence.” Id. The opinion of a nonexamining physician may serve as 28 substantial evidence if it is “supported by other evidence in the record and [is] 1 consistent with it.” Andrews, 53 F.3d at 1041.

2 1. Dr. You 3 On November 8, 2022, treating provider Dr. You completed a medical report 4 form and rendered an opinion of Plaintiff’s level of functioning. Tr. 2165-67. Dr. 5 You noted she had treated Plaintiff from May of 2014 through September 2022, 6 and her next appointment was scheduled for November 2022. Tr. 2165. She noted 7 Plaintiff’s diagnoses were fibromyalgia, osteoarthritis of the right knee and hip, 8 and osteoporosis. Id. She noted Plaintiff’s symptoms included “widespread pain, 9 especially of [of her] hip and knee,” fibromyalgia pain in fatty tissue areas, and she 10 explained that that hip and knee pain caused Plaintiff difficulty in walking and 11 sitting. Id. She opined Plaintiff had to elevate her legs 20-30 minutes per day after 12 activities such as light housework, and that treatment at that time included Tylenol 13 3 and muscle relaxers (methocarbamol). Id. She indicated Plaintiff also had 14 depression and anxiety, which in her opinion were reasonably likely to cause pain, 15 and that her prognosis was fair. Id. 16 Dr. You opined work on a regular and continuous basis would cause 17 Plaintiff’s condition to deteriorate and that if she attempted a 40-hour per week 18 schedule she would miss work an average of four days or more of work a month. 19 Tr. 2165-66. Dr. You explained that when Plaintiff was employed, she missed up 20 to a day a regularly. Tr. 2166. She opined plaintiff was limited “50/50” between 21 sedentary work and “severely limited,” defined on the form as “unable to perform 22 the demands of even sedentary work.” Id. She opined Plaintiff was limited to 23 frequent use of her upper extremities, and that based on the cumulative effect of all 24 limitations Plaintiff would likely be off task and unproductive over 30 percent of 25 the time during a 40-hour work week. Tr. 2166-67. She opined these limitations 26 existed at least since December 2019 and explained that the “above assessment is 27 mostly based on [Plaintiff’s] subjective report and my professional experience 28 treating [her] for fibromyalgia for the past eight years.” Tr. 2167. 1 The ALJ gave Dr. You’s opinion little weight because Dr. You indicated it 2 relied heavily on Plaintiff’s allegations, rather than observational or objective 3 evidence and, and because while Dr. You noted her treatment of Plaintiff 4 contributed to her conclusions she did not identify any evidence that supported her 5 limitations. Tr. 1574. The ALJ also found “[Dr. You’s] records [were] not 6 particularly consistent with her own assessment,” and that “while fibromyalgia 7 often eludes objective evidence, Dr. You’s records consistently show substantial 8 improvement in symptoms and functionality” and “this significant improvement 9 documented throughout long periods of treatment is not consistent with such 10 extreme limitations.” Id. (citing Tr. 2036-63). 11 Plaintiff contends the ALJ’s finding that Dr. You relied primarily on 12 Plaintiff’s subjective complaints was not accurate, and that Dr. You’s limitations 13 were not extreme but, rather, were consistent with the condition of fibromyalgia, 14 and the testimony of medical experts, as well; and that the ALJ failed to properly 15 evaluate the updated medical record. ECF No. 11 at 11-14. Defendant contends 16 the ALJ reasonably evaluated Dr. You’s opinion. ECF No. 17 at 3. 17 Relevant factors to evaluating any medical opinion include the amount of 18 relevant evidence that supports the opinion, the quality of the explanation provided 19 in the opinion, and the consistency of the medical opinion with the record as a 20 whole. Lingenfelter v. Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007); Orn v. Astrue, 21 495 F.3d 625, 631 (9th Cir. 2007). Moreover, a physician’s opinion may be 22 rejected if it is unsupported by the physician’s treatment notes. See Connett v. 23 Barnhart, 340 F.3d 871, 875 (9th Cir. 2003). Additionally, the Ninth Circuit in 24 Ghanim contemplated that medical sources rely on self-reports to varying degrees 25 and held that an ALJ may reject a medical source’s opinion as based on unreliable 26 self-reports only when the medical source relied “more heavily on a patient’s self- 27 reports than on clinical observations.” Ghanim v. Colvin, 763 F.3d 1154, 1162 28 (9th Cir. 2014). An ALJ must also consider all of the relevant evidence in the 1 record and may not point to only those portions of the records that bolster their 2 findings. See, e.g., Holohan, 246 F.3d at 1207-08 (holding that an ALJ cannot 3 selectively rely on some entries in plaintiff’s records while ignoring others). 4 Here, Dr. You explained her November 2022 assessment was “mostly based 5 on [Plaintiff’s] subjective report and my professional experience treating [her] for 6 fibromyalgia for the past eight years.” Tr. 2167. Indeed, as the ALJ noted, the 7 record contains hundreds of pages of Dr. You’s treatment records from 2014 on. 8 Tr. 491-35, 668-09, 1067-87, 1889-31, 2036-63. The ALJ failed, however, to 9 discuss relevant evidence and treatment provided by Dr. You. Tr. 1560-78. 10 Records show, for example, years of treatment with opiate pain medication 11 including daily hydrocodone, morphine for breakthrough pain, and as of 2022, the 12 substitution of Tylenol 3 for chronic pain from right knee and right hip 13 osteoarthritis and fibromyalgia; Plaintiff’s treatment and dependence on opiate 14 pain medication, however, is not mentioned by the ALJ anywhere in the decision. 15 Tr. 1560-78; see Tr. 491-35, 668-09, 1067-87, 1889-31, 2036-63. Indeed, while 16 the ALJ concluded that Dr. You’s records showed “substantial improvement in 17 symptoms and functionality,” which was in inconsistent with what the ALJ 18 determined were extreme limitations, the ALJ failed to explain that any reduced 19 pain level and improved function was dependent upon daily long-term treatment 20 with opiate analgesics prescribed by pain specialist Dr. You. Id. 21 The ALJ’s analysis is insufficient because she failed to account for or 22 discuss Dr. You’s extensive record, including Plaintiff’s long-term treatment with 23 opiate pain medication. On this record the ALJ’s rejection of Dr. You’s opinion 24 because it was inconsistent with her treatment records was not a specific and 25 legitimate reason supported by substantial evidence to discount the treating 26 provider’s opinion. 27 Dr. You’s records do show Plaintiff’s subjective reports of high pain levels, 28 but these records also include years of physical exams and assessment for 1 fibromyalgia and osteoarthritis of the hip and knee. Tr. 491-35, 668-09, 1067-87, 2 1889-31, 2036-63. Indeed, Dr. You’s records show documentation of consistent 3 findings upon physical exam including that she was positive for more than 11 out 4 of 18 fibromyalgia tender points and/or “widespread tenderness over fibromyalgia 5 tender point distribution,” as well as regular observation of cane use during the 6 period at issue. See, e.g., Tr. 1461, 1480, 1490, 1893, 1910, 2163. The ALJ 7 provided minimal citation or discussion of Dr. You’s records, however, even 8 though she was a treating provider and met with Plaintiff regularly over the period 9 at issue. The ALJ focused, instead, on findings from one consultative exam in 10 2019 to discount Plaintiff’s fibromyalgia symptoms, despite finding it a severe 11 impairment and despite observations by treating specialist, Dr. You, at 12 appointments a week before and a month after the consultative exam that Plaintiff 13 had widespread tenderness over fibromyalgia tender point distribution upon 14 physical exam. Tr. 1893, 1896, 1571, 1944-95. Both medical experts the ALJ 15 relied on also testified that fibromyalgia appeared to cause most of Plaintiff’s pain 16 and that her pain levels from this condition could wax and wane; Dr. Pierko noted 17 that while there was some inconsistency in the record as a whole concerning 18 Plaintiff’s use/medical necessity for a cane, that “pretty much every reference from 19 that pain clinic states that her . . . exam is positive for . . . at least 11 of 18 tender 20 points,” and Dr. Krishnamurthi opined in 2020 that fibromyalgia could also affect 21 her ability to walk differently on different days. Tr. 50, 60-64, 1128. 22 There is no evidence Dr. You relied more on Plaintiff’s subjective reports 23 than her own physical exam findings and expertise in Plaintiff’s condition, which 24 she documented in years of treatment records, and this was also not a specific and 25 legitimate reason supported by substantial evidence to discount Dr. You’s opinion. 26 2. Dr. Opara 27 On August 1, 2015, Dr. Opara conducted a physical consultative 28 examination and rendered an opinion on Plaintiff’s level of functioning. Tr. 655- 1 60. Dr. Opara diagnosed Plaintiff with status post ulnar transposition involving 2 both elbows for bilateral cubital tunnel syndrome with good handgrip and strength; 3 left knee osteoarthritis with normal range of motion; left thumb trigger finger, 4 improved with surgery; positional vertigo with normal neurological exam; and 5 shingles, noting she was in remission for that condition at the time. Tr. 658. Dr. 6 Opara opined her prognosis was good. Id. He opined she could stand and walk 7 less than two hours in an eight-hour workday “due to her tenderness and limited 8 motion of both hips”; and she could sit without limitation; and that she used a cane 9 as an assistive device. Tr. 659. Dr. Opara opined she could lift and carry 10 10 pounds occasionally and 10 pounds frequently “due to the severe tenderness and 11 limited motion of both hips and the antalgic gait. It would be hard for her to carry 12 or manipulate heavier objects.” Id. He opined she could occasionally climb steps 13 and stairs, and should never climb ladders, scaffolds, and ropes; and she could 14 occasionally stoop, crouch, kneel, and crawl. Id. 15 The ALJ found Dr. Opara’s opinion was due only partial weight, concluding 16 that “the postural limitations [were] warranted because Plaintiff has shown limited 17 range of motion and antalgic gait. However . . . this gait disturbance [was] not 18 universal, and [Plaintiff] often show[ed] normal gait and station findings.” Tr. 19 1573. The ALJ also found that “Dr. Opara’s evaluation suffers from some 20 inconsistency. For example, [Plaintiff’s] hips are noted as having substantial 21 limitation in range of motion, but there is no assigned impairment. Conversely, 22 [Plaintiff’s] knees showed no deficits on examination, but osteoarthritis was 23 diagnosed nonetheless.” Id. The also ALJ found Dr. Opara did not provide 24 justification for his opinion a cane was medically necessary, and the ALJ 25 concluded that “although the [Plaintiff’s] lower extremities have limitations 26 reducing lifting and carrying capacity, the evidence has not established these 27 impairments are so severe she is unable to lift and carry at the light level, and the 28 1 upper extremity findings suggest they would not contribute to a deficit in this 2 area.” Id. 3 Relevant factors to evaluating any medical opinion include the amount of 4 relevant evidence that supports the opinion, the quality of the explanation provided 5 in the opinion, and the consistency of the medical opinion with the record as a 6 whole. Lingenfelter, 504 F.3d at 1042; Orn, 495 F.3d at 631. Additionally, the 7 extent to which a medical source is “familiar with the other information in [the 8 claimant’s] case record” is relevant in assessing the weight of that source’s medical 9 opinion. See 20 C.F.R. §§ 404.1527(c)(6), 416.927(c)(6). Here, the ALJ 10 concluded Dr. Opara’s opinion was internally inconsistent because he noted range 11 of motion issues in her hips without assigning an impairment and because he 12 diagnosed osteoarthritis even though her “knees showed no deficits on 13 examination.” Tr. 1573. Dr. Opara explained, however, that he reviewed records 14 including progress notes from Plaintiff’s orthopedic provider from January 2015; 15 these records included follow up for bilateral knee issues, including left knee 16 injection(s) and right knee pain; and MRI findings on the left knee showed left 17 knee osteoarthrosis, bursitis, and chondromalacia. Tr. 635-38. Along with 18 reviewing treatment records, Dr. Opara interviewed Plaintiff about her medical 19 history and performed a physical exam; he noted Plaintiff’s history of knee issues 20 including diagnosis of osteoarthritis, as well as her report of knee pain at 5 out of 21 10. Tr. 655. Dr. Opara also noted Plaintiff’s medical history of bilateral hip 22 osteoarthritis and observed her “obvious painful discomfort” and “a duckling and 23 antalgic gait” upon physical exam. Tr. 656-58. Dr. Opara further observed she 24 was “unable to walk or stand without the cane,” she “had a lot of problems 25 climbing up and down the exam table . . . problems taking her shoes off and 26 putting them back on,” and that she had “diminished range of motion of both hip 27 joints” upon physical exam. Tr. 657. Dr. Opara’s supported his diagnoses and 28 medical source statement with a review of medical records, including imaging, as 1 well as his own history and physical exam, and the ALJ’s finding his opinion was 2 due less weight because it was internally inconsistent is not supported by 3 substantial evidence. This was not a specific and legitimate reason to discount his 4 opinion. 5 The ALJ also discounted Dr. Opara’s opinion because he did not provide 6 justification for his finding that Plaintiff’s use of a cane was medically necessary. 7 Tr. 1753. However, Dr. Opara explained he observed that she was “unable to walk 8 or stand without the cane,” and that she had a “duckling and antalgic gait” and 9 “diminished range of motion of both hip joints” upon physical exam. Tr. 656-58. 10 Dr. Opara supported his opinion that a cane was medically necessary at that time 11 with his own observations and physical exam findings, and the ALJ’s rejection of 12 the opinion because Dr. Opara did not provide justification for it was not a specific 13 and legitimate reason supported by substantial evidence to discount the opinion. 14 Finally, the ALJ discounted Dr. Opara’s opinion because the evidence did 15 not establish her lower extremity impairments were “so severe she [was] unable to 16 lift and carry at the light level, and the upper extremity findings suggest they would 17 not contribute to a deficit in this area.” Tr. 1573. However, the ALJ provided no 18 analysis here to support this reasoning, failed to account for Plaintiff’s 19 fibromyalgia, and Dr. Opara’s opinion that she was limited to sedentary level 20 lifting and carrying also appears consistent with every other examining and treating 21 physician who evaluated Plaintiff, as well as state agency medical consultant Dr. 22 Staley’s 2016 reconsideration opinion; all limited Plaintiff to no more than 23 sedentary work.3 Tr. 1573; see e.g., Tr. 153-54, 1944-45, 2165-67. 24

25 3 While the ALJ found the 2019 state agency opinions limiting Plaintiff to light 26 level lifting and carrying “partially persuasive,” the 2019 reviewers only evaluated 27 Plaintiff’s subsequent application, which was filed in February 2019 with an 28 alleged onset date of February 2018; and the state agency reviewers found her 1 The ALJ’s conclusion Dr. Opara’s opinion was due less weight because the 2 evidence failed to establish Plaintiff’s lower extremity impairments were “so 3 severe she [was] unable to lift and carry at the light level, and the upper extremity 4 findings suggest they would not contribute to a deficit in this area” was also not a 5 specific and legitimate reason supported by substantial evidence to discount his 6 opinion. 7 The ALJ failed to properly evaluate the medical opinions of treating 8 specialist Dr. You and consultative examiner Dr. Opara. Upon remand the ALJ 9 reconsider all medical opinion evidence with the assistance of a medical expert, 10 preferably one with expertise or in treating fibromyalgia and/or chronic pain. 11 B. Plaintiff’s Symptom Claims 12 Plaintiff contends the ALJ erred by improperly rejecting Plaintiff’s symptom 13 testimony. ECF No. 11 at 18-21. It is the province of the ALJ to make 14 determinations regarding a claimant’s subjective statements. Andrews, 53 F.3d at 15 1039. However, the ALJ’s findings must be supported by specific, cogent reasons. 16 fibromyalgia unsupported based only on Dr. Weir’s 2019 consultative exam. Tr. 17 1575; see Tr. 1188-89, 1196-98, 1202-04, 1210-13, 1624-36. Further, the ALJ 18 weighed/credited these 2019 state agency opinions twice, concluding that Plaintiff 19 filed two additional claims. Tr. 1575. Review of the administrative record, 20 however, shows Plaintiff’s 2019 application was exhibited twice; and even a 21 cursory review of the exhibits the ALJ cited concerning “a subsequently-filed 22 claim” and then “an additional subsequent claim” (13A, 15A, 19A, 21A) reveals 23 these are duplicates of the July and November 2019 initial and reconsideration 24 opinions by state agency reviewers Dr. Platter and Dr. Rubio. See Tr. 1633, 1637, 25 1647, 1650. The ALJ’s failure to realize these are the same opinions lends weight 26 to Plaintiff’s allegation that the ALJ failed to properly evaluate the updated 27 medical record. ECF No. 11 at 14. 28 1 Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Once the claimant 2 produces medical evidence of an underlying medical impairment, the ALJ may not 3 discredit testimony as to the severity of an impairment merely because it is 4 unsupported by medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 5 1998). Absent affirmative evidence of malingering, the ALJ’s reasons for rejecting 6 the claimant’s testimony must be “specific, clear and convincing.” Smolen v. 7 Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester, 81 F.3d at 834. “General 8 findings are insufficient: rather the ALJ must identify what testimony is not 9 credible and what evidence undermines the claimant’s complaints.” Lester at 834; 10 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 11 The ALJ concluded Plaintiff’s medically determinable impairments could 12 reasonably be expected to cause the alleged symptoms; however, Plaintiff’s 13 statements concerning the intensity, persistence, and limiting effects of those 14 symptoms were not entirely consistent with the medical evidence and other 15 evidence in the record. Tr. 1570. 16 1. Objective Evidence 17 The ALJ discounted Plaintiff’s symptom complaints because the objective 18 record was not fully consistent with Plaintiff’s allegations. Id. An ALJ may not 19 discredit a claimant’s symptom testimony and deny benefits solely because the 20 degree of the symptoms alleged is not supported by objective medical evidence. 21 Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001); Bunnell v. Sullivan, 947 22 F.2d 341, 346-47 (9th Cir. 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 23 1989); Burch v. Barnhart, 400 F.3d at 676, 680 (9th Cir. 2005). However, the 24 objective medical evidence is a relevant factor, along with the medical source’s 25 information about the claimant’s pain or other symptoms, in determining the 26 severity of a claimant’s symptoms and their disabling effects. Rollins, 261 F.3d at 27 857; 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2). 28 1 Here, the ALJ concluded that Plaintiff’s subjective allegations were not 2 consistent with the objective medical evidence. Tr. 1570. The ALJ focused, 3 however, solely on Plaintiff’s use of a cane and whether a cane was medically 4 necessary, and her allegation she needed to lay down frequently, both of which the 5 ALJ discounted. Tr. 1570-71. However, as noted supra in relation to the medical 6 opinion evidence, the ALJ failed to discuss relevant objective findings, including 7 years of physical exam findings by Plaintiff’s treating specialist, as well as years of 8 treatment with opiates daily for chronic pain. See Tr. 491-35, 668-09, 1067-87, 9 1889-31, 2036-63. As discussed above, an ALJ must also consider all of the 10 relevant evidence in the record and may not point to only those portions of the 11 records that bolster their findings. See, e.g., Holohan, 246 F.3d at 1207-08 12 (holding that an ALJ cannot selectively rely on some entries in plaintiff’s records 13 while ignoring others). 14 Further, “In evaluating whether a claimant’s residual functional capacity 15 renders them disabled because of fibromyalgia, the medical evidence must be 16 construed in light of fibromyalgia’s unique symptoms and diagnostic methods.” 17 Revels v. Berryhill, 874 F.3d 648, 662 (9th Cir. 2017). Fibromyalgia is a disease 18 that eludes objective measurement. Benecke v. Barnhart, 379 F.3d 587, 594 (9th 19 Cir. 2004). Additionally, “a person with fibromyalgia may have ‘muscle strength, 20 sensory functions, and reflexes [that] are normal.’” Revels, 874 F.3d at 663. 21 Normal objective examination results can be “perfectly consistent with debilitating 22 fibromyalgia.” Id. at 666. Additionally, “the symptoms of fibromyalgia ‘wax and 23 wane,’ and a person may have ‘bad days and good days.’” Id. While the mere 24 diagnosis of an impairment is not sufficient to sustain a finding of disability, “[i]n 25 evaluating whether a claimant’s residual functional capacity renders them disabled 26 because of fibromyalgia, the medical evidence must be construed in light of 27 fibromyalgia’s unique symptoms and diagnostic methods.” Id. at 662. 28 1 There are years of records with objective findings from physical and mental 2 status exams related to Plaintiff’s numerous physical and mental impairments, 3 including fibromyalgia, which the ALJ failed to discuss in the 2023 decision; the 4 ALJ focused, instead, on discounting Plaintiff’s symptom complaints because she 5 regularly used a cane and reported a need to lay down frequently when her 6 fibromyalgia symptoms flared. Tr. 1580-71. Pain clinic records for each visit 7 during the years at issue in this case include a history with Plaintiff’s report of her 8 average pain levels that day and week, as well as factors that aggravate and 9 alleviate her pain; her list of factors always included lying down. See, e.g., Tr. 10 532, 1460, 1466, 2036, 2042, 2104. The ALJ provided limited to no analysis in the 11 2023 decision of objective findings concerning her physical and mental 12 impairments, and the ALJ’s conclusion that the objective record was not fully 13 consistent with Plaintiff’s allegations is not supported by substantial evidence. 14 2. Activities of Daily Living 15 The ALJ found Plaintiff’s level of activity was not fully consistent with her 16 allegations. Tr. 1571. The ALJ may consider a claimant’s activities that 17 undermine reported symptoms. Rollins, 261 F.3d at 857. If a claimant can spend a 18 substantial part of the day engaged in pursuits involving the performance of 19 exertional or non-exertional functions, the ALJ may find these activities 20 inconsistent with the reported disabling symptoms. Fair, 885 F.2d at 603; Molina 21 v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012), superseded on other grounds by 20 22 C.F.R. §§ 404.1502(a), 416.902(a). “While a claimant need not vegetate in a dark 23 room in order to be eligible for benefits, the ALJ may discount a claimant’s 24 symptom claims when the claimant reports participation in everyday activities 25 indicating capacities that are transferable to a work setting” or when activities 26 “contradict claims of a totally debilitating impairment.” Molina, 674 F.3d at 1112- 27 13. 28 1 Here, the ALJ pointed to Plaintiff’s general ability to weed in her garden for 2 45 minutes, care for pets, do light housework, drive, shop for necessities and pay 3 bills as inconsistent with her allegations, particularly her allegation that she needs 4 to lay down and rest. Tr. 1571. None of these activities, however, are inconsistent 5 with Plaintiff’s allegations of chronic pain and other symptoms preventing her 6 from working a full-time job during the period at issue. The Ninth Circuit has 7 repeatedly found that the ability to perform these kinds of activities is not 8 inconsistent with the inability to work:

9 We have repeatedly warned that ALJs must be especially cautious in 10 concluding that daily activities are inconsistent with testimony about pain, because impairments that would unquestionably preclude work 11 and all the pressures of a workplace environment will often be 12 consistent with doing more than merely resting in bed all day. 13 14 Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014). 15 The ALJ also discounted Plaintiff’s reports because “her function has improved significantly with pain medication usage from 2018 through 2022,” but 16 as discussed supra the ALJ failed to discuss anywhere in the decision the fact that 17 Plaintiff was prescribed narcotic/opiate medication for treatment of chronic pain. 18 Further, while records from her treating pain specialist show that Plaintiff reported 19 some improvement in functioning with her opiate regimen, she also regularly 20 reported high pain levels or continued pain interference with activities even with 21 such medications. See e.g., Tr. 532, 674-75, 678, 682, 1460, 1466, 2042, 2104, 22 2121. The ALJ’s analysis is insufficient, and the ALJ’s conclusion Plaintiff’s level 23 of activity was not fully consistent with her allegations was not a clear and 24 convincing reason supported by substantial evidence to discount her symptom 25 claims. 26

28 1 3. Improvement with Conservative Treatment 2 The ALJ also found the record showed Plaintiff had significant improvement 3 with conservative treatment. Tr. 1571. Evidence of conservative treatment is 4 sufficient to discount a claimant’s testimony regarding the severity of an 5 impairment. See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) 6 (holding the ALJ permissibly inferred that the claimant’s “pain was not as all- 7 disabling as he reported in light of the fact that he did not seek an aggressive 8 treatment program” and “responded favorably to conservative treatment including 9 physical therapy and the use of anti-inflammatory medication, a transcutaneous 10 electrical nerve stimulation unit, and a lumbosacral corset”). Additionally, the 11 effectiveness of treatment is a relevant factor in determining the severity of a 12 claimant’s symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.913(c)(3); see Warre v. 13 Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006); Tommasetti, 14 533 F.3d at 1040 (a favorable response to treatment can undermine a claimant’s 15 complaints of debilitating pain or other severe limitations). 16 Here, the ALJ found “the record shows [Plaintiff] has had significant 17 improvement often with conservative treatment.” Tr. 1571. The ALJ noted 18 Plaintiff’s finger and bilateral arm nerve transposition surgeries resulted in 19 substantial improvement but then also acknowledged “surgical intervention would 20 not be characterized as conservative treatment.” Id. Otherwise, the ALJ found only that “daily functioning and mood have improved with conservative treatment, 21 and the [Plaintiff] was doing well with pain medicines.” Id. (citing Tr. 668, 20, 22 731-780, 781-91). The ALJ cited to only two actual office visit records directly, 23 however, and otherwise cited generally to entire exhibits, without discussion or 24 explanation of how the records support her findings. Tr. 1571-72. Review of the 25 few actual visits cited also shows, for example, that while Plaintiff’s pain specialist 26 noted at a November 2015 office visit under “history of present complaints” that 27 Plaintiff’s daily function and mood had improved, she also noted in the same 28 1 section that “overall [her] pain control has WORSENED [sic].” Tr. 668. 2 Plaintiff’s daily medications at that time are noted, including hydrocodone, 3 morphine, methocarbamol, and gabapentin, as well as psychiatric medications 4 including Seroquel, clonazepam, and venlafaxine. Tr. 668-69. Objective findings 5 included more than 11 of 18 fibromyalgia tender points upon physical exam, and 6 Dr. You’s assessment was that Plaintiff’s impairments were “not improving.” Tr. 7 670. The ALJ provided no explanation or discussion of the general exhibits she 8 cited here and appears to have selectively cited from visit notes that, upon review, 9 do not fully support her conclusions. Tr. 1571-72. 10 Finally, the ALJ concluded:

11 despite complaints of worsening symptoms and pain, the record shows 12 [Plaintiff] reported substantial improvement throughout April 2018 through September 2022, including reduced pain level and improved 13 functioning . . . This consistent improvement is further incompatible 14 with the [Plaintiff’s] need to lie down for up to 45 minutes after just 15 30 minutes of activity.

16 Tr. 1571-72 (citing Tr. 1459-93, 1889-00, 1904-31, 2034-2163). 17 The ALJ is required to set forth the reasoning behind his or her decisions in 18 a way that allows for meaningful review. Brown-Hunter v. Colvin, 806 F.3d 487, 19 492 (9th Cir. 2015) (finding a clear statement of the agency’s reasoning is 20 necessary because the Court can affirm the ALJ’s decision to deny benefits only on 21 the grounds invoked by the ALJ). “Although the ALJ’s analysis need not be 22 extensive, the ALJ must provide some reasoning in order for us to meaningfully 23 determine whether the ALJ’s conclusions were supported by substantial evidence.” 24 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103 (9th Cir. 2014). 25 Here, as discussed supra, the ALJ failed to discuss the fact that Plaintiff’s pain 26 medicine included daily hydrocodone through approximately 2020, which was 27 changed later to Tylenol with codeine; the failure to discuss her daily use of 28 prescribed narcotic pain medication, including any side effects and/or dependence 1 has the effect, intended or no, of minimizing her impairments, symptoms, and 2 treatment. See, e.g., Tr. 532, 534, 1606, 2113, 2116. The ALJ also cited generally 3 to hundreds of pages of exhibits, including years of pain clinic treatment notes, 4 with no discussion of objective findings or assessment from the actual visit notes. 5 Tr. 1571-72; see Tr. 1459-93, 1889-00, 1904-31, 2034-2163. Without further 6 explanation it is not clear that her treatment constituted conservative treatment, that 7 the records reflect improvement and, if so, when such improvement occurred. 8 Indeed, the ALJ concluded the records show improvement from April 2018 9 through September 2022, but Plaintiff’s alleged onset date is 2014. Tr. 256, 1571- 10 72. The ALJ’s analysis is insufficient, and the ALJ’s conclusion that records 11 showed Plaintiff had significant improvement with conservative treatment is also 12 not a clear and convincing reason supported by substantial evidence to discount her 13 symptom claims. 14 The ALJ failed to provide clear and convincing reasons supported by 15 substantial evidence to discount Plaintiff’s symptom claims. Upon remand, the 16 ALJ will reanalyze all medical evidence of record with the assistance of medical 17 expert testimony and reconsider Plaintiff’s symptom claims for the entire period at 18 issue. 19 C. Step-Three and Step-Five 20 Plaintiff contends the ALJ also failed to conduct an adequate step-three analysis, failed to adequately consider listing 14.09D in accordance with Plaintiff’s 21 fibromyalgia, and failed to find Plaintiff disabled as meeting or equaling, singly or 22 in combination, listings 1.02A, 14.09A, and 14.09D; and that the ALJ failed to 23 meet her burden at step-five. ECF No. 11 at 16-18, 21. Having determined a 24 remand is necessary to readdress the medical source opinions and Plaintiff’s 25 subjective complaints, the Court declines to reach these issues. See Hiler v. Astrue, 26 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because we remand the case to the ALJ for 27 28 1 the reasons stated, we decline to reach [plaintiff’s] alternative ground for 2 remand.”). 3 Upon remand, the ALJ is instructed to reperform the sequential analysis with 4 the assistance of medical expert testimony, including the step-three analysis. The 5 ALJ will also reperform the step-five analysis with the assistance of vocational 6 expert testimony. 7 CONCLUSION 8 The ALJ’s decision is not supported by substantial evidence and not free of 9 harmful error. Plaintiff argues the ALJ’s decision should be reversed and 10 remanded for the payment of benefits. ECF No. 11 at 22. The Court has the 11 discretion to remand the case for additional evidence and findings or to award 12 benefits. Smolen, 80 F.3d at 1292. The Court may award benefits if the record is 13 fully developed and further administrative proceedings would serve no useful 14 purpose. Id. Remand is appropriate when additional administrative proceedings 15 could remedy defects. Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). 16 The Court will also not remand for immediate payment of benefits if “the record as 17 a whole creates serious doubt that a claimant is, in fact, disabled.” Garrison, 759 18 F.3d at 1021. 19 Here, the Court notes with dismay that this claim has consumed nearly a 20 decade without reasonable resolution for Plaintiff, despite two remands by this 21 Court. It is not clear to the Court, however, that the ALJ would be required to find 22 Plaintiff disabled, or disabled through the entire period at issue, if all the evidence 23 were properly evaluated. The Court therefore finds that further proceedings are 24 necessary for an ALJ to reconsider the medical evidence, including conflicting 25 medical opinion evidence, reevaluate Plaintiff’s symptom claims, as well as to 26 further develop the record with medical expert testimony and perform the five-step 27 sequential evaluation anew. For these reasons, the Court remands this case for 28 further administrative proceedings. 1 On remand, the ALJ shall obtain all updated medical evidence. The ALJ 2|| shall reevaluate the medical evidence of record with the assistance of medical 3|| expert testimony, making new findings on each of the five steps of the sequential 4|| evaluation process, take the testimony of a vocational expert, and issue a new 5|| decision. The ALJ shall reassess all medical opinion evidence and medical 6|| opinions and shall also reassess plaintiff's subjective complaints, taking into consideration any other evidence or testimony relevant to Plaintiffs disability 8 || claim. 9 Having reviewed the record and the ALJ’s findings, the Commissioner’s 10}| final decision is REVERSED, and this case is REMANDED for further 11]| proceedings under sentence four of 42 U.S.C. § 405(g). 12 Accordingly, IT IS ORDERED: 13 1. Plaintiff's Motion to reverse, ECF No. 11, is GRANTED. 14 2. Defendant’s Motion to affirm, ECF No. 17, is DENIED. 15 3. The matter is REMANDED to the Commissioner for additional 16|| proceedings consistent with this Order. 17 4. An application for attorney fees may be filed by separate motion. 18 The District Court Executive is directed to update the docket sheet to reflect the substitution of Martin O’Malley as Defendant and file this Order and provide 20|| copies to counsel. Judgment shall be entered for Plaintiff and the file shall be CLOSED. 22 DATED March 11, 2024.

24 C, oy oN ALEXANDER C. EKSTROM _ UNITED STATES MAGISTRATE JUDGE

27 28