WESTERN DISTRICT OF WASHINGTON VIVIANLYNNE Q., Case No. 3:19-cv-05404 Plaintiff, v. ORDER REVERSING AND REMANDING DEFENDANT’S COMMISSIONER OF SOCIAL DECISION TO DENY BENEFITS Defendant. Plaintiff has brought this matter for judicial review of Defendant’s denial of her application for supplemental security income (“SSI”) benefits. The parties have consented to have this matter heard by the undersigned Magistrate Judge. 28 U.S.C. § 636(c); Federal Rule of Civil Procedure 73; Local Rule MJR 13. For the reasons set forth below, the ALJ’s decision is reversed and remanded for further administrative proceedings. 1. Did the ALJ err at step three of the sequential evaluation? 2. Did the ALJ properly evaluate Plaintiff’s symptom testimony? 3. Did the ALJ err in evaluating medical opinion evidence? 4. Is a remand for additional proceedings the proper remedy, due to ambiguity in the record?
On July 31, 2014, Plaintiff filed an application for SSI, alleging a disability onset date of January 15, 2008. AR 15, 157-62. Plaintiff subsequently amended her alleged onset date to July 31, 2014. AR 35. Plaintiff’s application was denied upon initial administrative review and on reconsideration. AR 15, 88-91, 99-101. A hearing was held before Administrative Law Judge (“ALJ”) Steve Lynch on May 15, 2018. AR 31-54. On June 27, 2018, the ALJ issued a written decision finding that Plaintiff was not disabled.
AR 12-24. The Social Security Appeals Council denied Plaintiff’s request for review on March 7, 2019. AR 1-6. Plaintiff seeks judicial review of the ALJ’s June 27, 2018 decision. Dkt. 4. Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of Social Security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). Substantial evidence is “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations omitted).
In this case, the ALJ found that Plaintiff had the severe, medically determinable impairments of degenerative disc disease, depression, bipolar disorder, anxiety disorder, and attention deficit hyperactivity disorder (“ADHD”). AR 17. Based on the limitations stemming from these impairments, the ALJ found that Plaintiff could perform a reduced range of sedentary work. AR 19. Relying on vocational expert (“VE”) testimony, the ALJ found that there were a significant number of sedentary jobs Plaintiff could perform at step five of the sequential evaluation; therefore the ALJ determined at step five that Plaintiff was not disabled. AR 23-24, 51.
A. Whether the ALJ erred at step three Plaintiff contends that the ALJ erred by not further developing the record concerning whether Plaintiff’s spinal impairment met Listing 1.04A at step three. Dkt. 14, pp. 15-17.
At step three of the sequential evaluation, the ALJ must evaluate the claimant's impairments to determine whether they meet or medically equal any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. § 416.920(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If they do, the claimant is deemed disabled. 20 C.F.R. § 416.920(d). The burden of proof is on the claimant to establish he or she meets or equals any of the impairments in the listings. Tackett, 180 F.3d at 1098. A claimant can meet Listing 1.04 by satisfying one of three different sets of criteria. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.04 (describing different criteria under subsections A, B, and C). Listing 1.04A requires the existence of a spinal impairment resulting in the compromise of a nerve root (including the cauda equina) or
the spinal cord, accompanied by: (1) evidence of nerve root compression characterized by neuro-anatomic distribution of pain; (2) limitation of motion of the spine; (3) motor loss (atrophy with associated muscle weakness or muscle weakness) with sensory or reflex loss; and (4) if there is involvement of the lower back, positive straight-leg raising test (sitting and supine). 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.04A. Here, the ALJ found at step three that Plaintiff’s lumbar impairment did not meet Listing 1.04A because Plaintiff did not exhibit motor loss with sensory or reflex disturbance and did not meet the criteria of subsections B and C because there was no evidence of spinal arachnoiditis or lumbar spinal stenosis with pseudoclaudication. AR
18. The ALJ further reasoned that no medical consultant opined that Plaintiff’s impairments were medically equal to a listed impairment, singly or in combination. Id. First, in discussing the record only as it pertains to motor, sensory, and reflex loss, the ALJ confirmed that Plaintiff’s lumbar degenerative disc disease otherwise
meets the criteria set forth in Listing 1.04A. Defendant makes the same implied concession, arguing that the ALJ’s finding that Plaintiff did not exhibit motor loss with sensory or reflex disturbance is supported by the record, but not otherwise disputing that Plaintiff’s impairment meets the requirements of Listing 1.04A. Dkt. 15, pp. 2-6. Defendant’s concession that Plaintiff’s impairment otherwise meets the requirements of Listing 1.04A is supported by the record, which indicates that during the period at issue, Plaintiff had a spinal impairment resulting in nerve root compression, exhibited a reduced range of motion in her lumbar spine, and had positive straight leg raising tests. AR 283-84, 286-87, 294-95, 302, 308, 316-17, 350, 363, 384, 448, 492-93, 689, 720-21, 735, 738, 752-53, 754.
Second, the ALJ’s finding that Plaintiff did not exhibit motor loss with sensory or reflex disturbance is not supported by substantial evidence. In reaching this conclusion, the ALJ relied exclusively upon a physical examination conducted in May 2015, in which Plaintiff did not exhibit any motor, sensory, or reflex loss. AR 18, 731-32. The ALJ has selectively cited the record. Plaintiff repeatedly demonstrated sensory deficits in her lumbar spine and left leg and reduced strength in her left leg on examination. AR 308, 350, 363, 384, 449, 594, 689. See Garrison v. Colvin, 759 F.3d 995, 1017-18 (2014) (finding that the ALJ erred by improperly singling out a few periods of temporary well-being from a sustained period of impairment and relied on those
instances to discredit a claimant); see also Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir.2007) (The Court must consider the entire record as a whole, weighing both the evidence that supports and detracts from the Commissioner's finding, and may not affirm simply by isolating a specific quantum of supporting evidence.”). Plaintiff reported
symptoms consistent with these results, stating that she had fallen down several times due to weakness and pain in her left leg. AR 447, 590. Third, the ALJ’s conclusion that no medical consultant opined that Plaintiff’s impairments were medically equal to Listing 1.04 is unpersuasive given that no examining physician was asked about the applicability of this listing during the period at issue, despite a finding that a consultative examination was necessary to determine the severity of Plaintiff’s impairments. AR 60, 77. Defendant contends that this statement refers to the need for a consultative examination to assess Plaintiff’s psychological impairments. Dkt. 15, pp. 4-5. This argument is not persuasive; Plaintiff alleges she is disabled primarily due to her physical
impairments, and the record does not contain an opinion from an examining source describing Plaintiff’s physical limitations during the period at issue. And, the record available to the state agency consultants at the initial level already contained an opinion from examining psychologist Shirley Shen, Ph.D. AR 57, 74, 196, 204-05, 215, 223. Defendant also contends that Social Security Ruling (“SSR”) 17-2p provides that an ALJ need not articulate specific evidence supporting his or her finding concerning medical equivalence. Dkt. 15, p. 5. Yet, the issue in this case is whether Plaintiff’s condition meets, rather than equals, a listed impairment. Moreover, the ALJ gave an
explanation about why Plaintiff’s condition did not meet Listing 1.04, but finding was not supported by substantial evidence, for the reasons discussed above. The ALJ has an independent duty to fully and fairly develop the record. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). That duty is triggered when
there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence. Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). Here, the record is replete with ambiguity concerning whether Plaintiff’s lumbar degenerative disc disease meets the specific portion of Listing 1.04A concerning motor loss with sensory or reflex disturbance. The record contains evidence that Plaintiff’s condition meets many, and possibly all, of the requirements of this listing, but does not contain an opinion from an examining physician or a medical expert concerning Plaintiff’s functional capacity during the period at issue or whether her condition meets the listing. On remand, the ALJ shall develop the record by soliciting an opinion from a
medical expert or an examining physician concerning whether Plaintiff’s lumbar degenerative disc disease meets the specific portion of Listing 1.04A concerning motor loss with sensory or reflex disturbance (that Plaintiff’s condition meets each of the other criteria of Listing 1.04A has been conceded, so there is no need for additional evidence on those criteria) -- and if so, when this condition became disabling. Diedrich v. Berryhill, 874 F.3d 634, 638-40 (9th Cir. 2017). B. Whether the ALJ erred in evaluating Plaintiff’s testimony Plaintiff contends that the ALJ did not provide clear and convincing reasons for discounting her symptom testimony. Dkt. 14, pp. 3-11.
In weighing a Plaintiff’s testimony, an ALJ must use a two-step process. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). First, the ALJ must determine whether there is objective medical evidence of an underlying impairment that could reasonably be expected to produce some degree of the alleged symptoms. Ghanim v. Colvin, 763
F.3d 1154, 1163 (9th Cir. 2014). If the first step is satisfied, and provided there is no evidence of malingering, the second step allows the ALJ to reject the claimant’s testimony of the severity of symptoms if the ALJ can provide specific findings and clear and convincing reasons for rejecting the claimant’s testimony. Id. See Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999). In discounting Plaintiff’s symptom testimony, the ALJ reasoned that: (1) Plaintiff’s allegations concerning her physical impairments were inconsistent with the record; (2) Plaintiff’s physical symptoms were well controlled with conservative treatment until February 2018; (3) there is no medical necessity for Plaintiff to lie down during the day or use a cane; and (4) Plaintiff’s mental impairments responded well when she was
compliant with her treatment regimen. AR 20-21. With respect to the ALJ’s first reason, an inconsistency with the objective evidence may serve as a clear and convincing reason for discounting a claimant’s testimony. Regennitter v. Commissioner of Social Sec. Admin., 166 F.3d 1294, 1297 (9th Cir. 1998). But an ALJ may not reject a claimant’s subjective symptom testimony “solely because the degree of pain alleged is not supported by objective medical evidence.” Orteza v. Shalala, 50 F.3d 748, 749-50 (9th Cir. 1995) (internal quotation marks omitted, and emphasis added); Byrnes v. Shalala, 60 F.3d 639, 641-42 (9th Cir. 1995) (applying rule to subjective complaints other than pain).
As for the ALJ’s second reason, evidence of conservative treatment successfully relieving symptoms is a legally permissible reason for discounting a claimant’s testimony. See 20 C.F.R. § 416.929(c)(3)(iv) (the effectiveness of medication and treatment are relevant to the evaluation of a claimant’s alleged symptoms); see also
Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (citing Parra v. Astrue, 481 F.3d 742, 750–51 (9th Cir.2007) (stating that “evidence of ‘conservative treatment’ is sufficient to discount a claimant's testimony regarding severity of an impairment”). In this case the record does not support the ALJ’s reasoning; the record indicates that while Plaintiff did report some improvement in her back pain with conservative measures such as physical therapy and steroid injections, she reported at other times that these measures were ineffective. Plaintiff reported that her pain control came primarily from consistent use of Percocet, a strong opioid medication. AR 304, 307, 334, 338, 343, 358, 447, 449, 533, 670, 678, 680, 761, 779; O’Connor v. Berryhill, 355 F. Supp. 3d 972, 985 (W.D. Wash. 2019) (noting that Courts in the Ninth Circuit have
typically found that consistent use of strong opioid analgesics such as hydrocodone and oxycodone cannot be accurately characterized as “conservative” treatment); Bucknell v. Berryhill, No. ED CV 18-0261 AS, 2018 WL 6198459, at *4 (C.D. Cal. Nov. 27, 2018) (unpublished) (collecting cases). Opiate medication was part of Plaintiff’s treatment, but at some point in 2017-18, her physicians scaled it back. See, e.g., AR 789-91, 795, (Dr. Jon Eggen, 10-5-2017 and John Hart, 10-18-2017 and 12-20-2017: extensive pain and neuropathy, fibromyalgia, showing the physicians used different combinations of pain medicines and implemented tapering off opioids). This would suggest that opioids are not “conservative” in the sense that a conservative treatment would seem to be low-risk
and could be used liberally. See, Hadden v. Adams, No. 16-CV-02686 LHK (PR), 2018 WL 6438362 at *8 - *9 (N.D. Cal. 2018) (describing risks associated with opiate medications, and observing that a physician who was treating a prisoner with chronic pain conditions acted in a manner that did not show deliberate indifference to serious
medical needs by trying different medications, tapering off opioids, and recommending against using opioids because opioid use poses serious risks and these drugs should not be used unless there is evidence of severe disease). While Plaintiff was scheduled to undergo an operation to address her spinal impairment shortly after the hearing, she was unable to pursue more aggressive surgical treatment options during the period at issue because her insurance provider refused to pay for it. AR 573, 678, 841. Accordingly, the ALJ’s finding that Plaintiff’s physical symptoms were well controlled with conservative treatment cannot constitute a clear and convincing reason for discounting Plaintiff’s testimony.
With respect to the ALJ’s third reason, the fact that there is nothing in the record to indicate a medical necessity for Plaintiff to lie down during the day or use a cane is not, in this case, a clear and convincing reason for discounting Plaintiff’s testimony, given that the absence of these requirements in Plaintiff’s residual functional capacity (“RFC”) would not necessarily preclude a finding of disability. The ALJ’s reason is not supported by the record in any event: Plaintiff testified that she had been diagnosed with fibromyalgia and spinal problems causing sciatica nerve damage and pain, for which she was prescribed a variety of pain medications, but had recently been tapered off of Percocet, Tramadol, and Morphine. AR 38-40. The ALJ did not ask whether the
pain medications would have caused any side effects; nor did the ALJ ask whether Plaintiff was lying down in order to manage her pain – but Plaintiff offered this information on her own. AR 42, 44. Plaintiff clarified that she had to lie down for a majority of the day, every day, due to chronic pain; she testified the pain medications
had side-effects such as abdominal shooting pain, constipation, and fatty liver. AR 43- 46. The medical record supports these statements by Plaintiff. AR 585-99, 609-13, 789- 91, 795. As for the ALJ’s fourth reason, the record is ambiguous and there is not substantial evidence to support the ALJ’s finding that Plaintiff’s mental impairments responded well when she was compliant with her treatment regimen. The record shows that her symptoms waxed and waned, and there was interaction and overlap between the extreme pain she experienced and the mental health conditions she experienced. See e.g. AR 445 (Dr. Shirley Shen, on 12-5-2014: “At this time, it is difficult to ascertain whether her pain or her mental illness limit her more. It seems that both of these
conditions are major barriers for her and they exacerbate each other.”), AR 585-99, 609-13 (Dr. Sarah Winslow, 2-23-2018, 3-7-2018, 3-22-2018: indicating fluctuation in symptoms such as: neuropathy, anxiety, confusion, pain, Bell’s Palsy, and adjusting medications); AR 789 (Dr. Jon Eggen, 10-5-2017 and John Hart, 10-18-2017 and 12- 20-2017: indicating Bell’s Palsy, extensive pain and neuropathy, fibromyalgia, adjusting to different combinations of medicines). Although this Court is required to accept the ALJ’s conclusion if the evidence is susceptible to more than one rational interpretation, Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005), the Court is also required to consider that mental health conditions
wax and wane, and the fluctuations do not necessarily indicate the condition has responded to treatment and resolved. Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). Depression is an under-reported illness and lack of treatment, uneven recovery, or failure to follow through with treatment, does not mean the patient is not disabled –
the treatment may be difficult for the patient to comply with, as a result of the depression. Nguyen v. Chater, 100 F.3d 1462, 1464-65 (9th Cir. 1996). C. Whether the ALJ erred in evaluating the medical opinion evidence Plaintiff contends that the ALJ erred in assigning “little weight” to opinions from J.S. Chowdhury, M.D., Lucretia Krebs, Psy.D., and Cheri Oellrich, M.D. because they were all rendered several years before Plaintiff’s alleged onset date. Dkt. 14, pp. 11-15; AR 22. In assessing an acceptable medical source – such as a medical doctor – the ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted opinion of either a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.
1995) (citing Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)); Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). When a treating or examining physician’s opinion is contradicted, the opinion can be rejected “for specific and legitimate reasons that are supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). Dr. Chowdhury and Dr. Krebs issued their opinions in 2010, while Dr. Oellrich rendered her opinion in 2012. AR 259-62, 265-67, 268-70, 272-74. Medical opinions rendered outside the period at issue can be of limited probative value in ascertaining a
claimant’s functional capacity after his or her alleged onset date. See Macri v. Chater, 93 F.3d 540, 545 (9th Cir. 1996); see also 20 C.F.R. §§ 416.335, 416.501, 416.912 (With respect to SSI claims, although SSI benefits are not payable until one month after the date on which an application is filed, the ALJ is required to consider evidence dated
at least 12 months preceding the SSI application date unless the alleged disability began less than 12 months before the application was filed). These opinions are uncontradicted because they are from a different time than the other assessments; the other assessments would potentially be considered as being at odds with these three earlier assessments – but only if the other assessments had been rendered during the same 2010-2012 period (as Plaintiff points out, Dkt. 14 at 13- 14); the opinions of these three physicians relate to a period between two and four years prior to Plaintiff’s amended onset date. The probative value of these opinions is that they document, when compared with later opinions and medical information, the progression of a severe back
impairment; this context should not be skimmed over or discounted when the condition at issue is a condition of the spine that has changed over time – the variability of the condition is important to the context of Plaintiff’s long term medical condition that has affected her spine. The record shows Plaintiff’s functional capacity was deteriorating during the period at issue, especially given that diagnostic imagining indicates that Plaintiff’s spinal impairment worsened during the period at issue. AR 275-76, 681, 720- 21, 752-53.
Accordingly, the ALJ has not provided a clear and convincing reason for rejecting the opinions of Dr. Chowdhury, Dr. Krebs, and Dr. Oellrich. These medical opinions provided important context for the longitudinal medical record. D. Remand with Instructions for Further Proceedings
Plaintiff asks the Court to remand this case for an award of benefits. Dkt. 14, p. 17. “‘The decision whether to remand a case for additional evidence, or simply to award benefits[,] is within the discretion of the court.’” Trevizo v. Berryhill, 871 F.3d 664, 682 (9th Cir. 2017) (quoting Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)). If an ALJ makes an error and the record is uncertain and ambiguous, the court should remand to the agency for further proceedings. Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017). Likewise, if the court concludes that additional proceedings can remedy the ALJ’s errors, it should remand the case for further consideration. Revels, 874 F.3d at 668. The Ninth Circuit has developed a three-step analysis for determining when to
remand for a direct award of benefits. Such remand is generally proper only where “(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.” Trevizo, 871 F.3d at 682-83 (quoting Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014)). If the Court concludes “that the record as a whole creates serious doubt as to whether Claimant is, in fact, disabled”, the Court may remand for further proceedings. Burrell v. Colvin, 775 F.3d 1133, 1141-42 (9th Cir. 2014). Here, considering the record as a whole, the Court finds there is serious doubt as to whether Plaintiff is disabled. The ALJ erred at step three of the sequential evaluation; in addition, considering the record as a whole -- the ALJ did not provide legally supported reasons, nor were the reasons based on substantial evidence, for
discounting Plaintiff’s testimony concerning her lumbar impairment and the other impairments that she has alleged. The record remains ambiguous concerning whether Plaintiff’s lumbar degenerative disc disease meets the requirements of Listing 1.04A. On remand, the ALJ is directed to solicit an opinion from a medical expert or an examining physician concerning whether Plaintiff’s lumbar degenerative disc disease meets Listing 1.04A. The ALJ shall develop the record by soliciting an opinion from a medical expert or an examining physician concerning whether Plaintiff’s lumbar degenerative disc disease meets the specific portion of Listing 1.04A concerning motor loss with sensory or reflex disturbance (that Plaintiff’s condition meets each of the other criteria of Listing 1.04A
has been conceded by the defendant by implication, so it appears there is no reason for the ALJ to take additional evidence on those criteria) -- and if so, when this condition became disabling. Diedrich v. Berryhill, 874 F.3d 634, 638-40 (9th Cir. 2017). In addition, after taking new evidence, the ALJ shall re-evaluate whether Plaintiff’s statements should be given greater weight as to the lumbar condition, and whether there is substantial evidence to support a disability finding due to other conditions. Plaintiff has alleged in her testimony as well as her various statements other documents in the administrative record, that she suffers debilitating effects from a physical condition (the spinal pain, leg pain, and related physical restrictions on
movement) as well as the combination of conditions (degenerative disc disease, depression, bipolar disorder, anxiety disorder, and attention deficit hyperactivity disorder), causing her to suffer limitations that render her unable to work at even a sedentary job. She has also asserted that side effects of medication have caused her to
experience pain and work-related limitations. The record is ambiguous as to all these conditions, and the ALJ is directed to address each condition as they may overlap and interact with each other, and take additional evidence as necessary. Based on the foregoing discussion, the Court finds the ALJ erred when he found Plaintiff was not disabled. Defendant’s decision to deny benefits is therefore REVERSED and this matter is REMANDED for further administrative proceedings. The ALJ is directed to re-evaluate Plaintiff’s testimony concerning her lumbar impairment and the other impairments, and to develop the record concerning whether the lumbar impairment meets Listing 1.04A.
Dated this 17th day of August, 2020.
A
Theresa L. Fricke United States Magistrate Judge