1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 THERESA R., 8 Plaintiff, Case No. C20-5705 RAJ 9 v. ORDER REVERSING AND 10 REMANDING DEFENDANT’S 11 COMMISSIONER OF SOCIAL DECISION TO DENY BENEFITS SECURITY, 12 Defendant. 13 Plaintiff seeks review of the denial of her applications for Supplemental Security 14 Income and Disability Insurance Benefits. Plaintiff contends the ALJ erred by rejecting 15 her symptom testimony and the opinions of treating provider Karl Sembroski, PA. Dkt. 16 12, p. 1. As discussed below, the Court REVERSES the Commissioner’s final decision 17 and REMANDS the matter for further administrative proceedings under sentence four of 18 19 42 U.S.C. § 405(g). 20 BACKGROUND 21 Plaintiff is 51 years old, has at least a high school education, and has worked as a 22 hairstylist. Admin. Record (“AR”) (Dkt. 10) 26–27, 94, 236. On June 15, 2017, Plaintiff 23 applied for benefits, later alleging an amended disability onset date of August 28, 2017. 1 AR 94–95, 196–201, 211–19. Plaintiff’s applications were denied initially and on 2 reconsideration. AR 93–128. 3 ALJ Gerald Hill conducted a hearing on May 21, 2019, after which he issued a 4 decision finding Plaintiff not disabled. AR 15–28, 35–66. In relevant part, ALJ Hill 5 found Plaintiff had severe impairments of degenerative disc disease, fibromyalgia, 6 chronic pain syndrome, migraines, depression, and obesity. AR 18. The ALJ found 7 Plaintiff had the residual functional capacity (“RFC”) to perform light work with 8 additional exertional, postural, manipulative, and environmental restrictions. See AR 21. 9 The ALJ found plaintiff had additional cognitive and social limitations. See id. 10 The Appeals Council denied Plaintiff’s request for review, making the ALJ’s 11 12 decision the Commissioner’s final decision. AR 1–3. 13 DISCUSSION 14 The Court may set aside the Commissioner’s denial of Social Security benefits 15 only if the ALJ’s decision is based on legal error or not supported by substantial evidence 16 in the record as a whole. Ford v. Saul, 950 F.3d 1141, 1153–54 (9th Cir. 2020). 17 A. Plaintiff’s Symptom Testimony 18 Plaintiff contends the ALJ erred by rejecting her testimony regarding the severity 19 of symptoms from her physical and mental impairments.1 Dkt. 12, pp. 2–5. Plaintiff 20 testified she gets migraines three to four times a month, and they can last from 24 hours 21 22 1 Plaintiff inexplicably contends the ALJ failed to give “germane” reasons for rejecting her 23 symptom testimony. Dkt. 21, p. 2. An ALJ is required to meet a higher standard than this, and counsel risks prejudicing his own client by suggesting a lower standard. 1 up to three days. See AR 41–42, 250, 280. She testified she has flares of pain that can 2 last 24 hours, and it will be two to three days before she can function “a little bit better.” 3 AR 45. She testified she has carpal tunnel syndrome in her right hand. See AR 45, 242. 4 She testified she has limited use of her hands. AR 295. Plaintiff testified she has left 5 shoulder impingement. AR 45–46. She testified she can sit for a half hour at a time. See 6 AR 47, 242, 247, 300. She testified she can stand and/or walk for one to two hours at a 7 time. See AR 47, 242, 247, 300. She testified she has to lie down for a half hour to an 8 hour two or three times a day. AR 47. On a bad day, she will lie down for seven hours in 9 an eight-hour period. AR 49. Plaintiff testified she can lift 15 pounds on a good day, and 10 less on a bad day. See AR 48, 247, 300. She testified about four out of seven days a 11 12 week are bad days. AR 49–50. She testified at times her pain gets bad enough to affect 13 her ability to focus and concentrate. See AR 52, 247, 300. 14 The Ninth Circuit has “established a two-step analysis for determining the extent 15 to which a claimant’s symptom testimony must be credited.” Trevizo v. Berryhill, 871 16 F.3d 664, 678 (9th Cir. 2017). The ALJ must first determine whether the claimant has 17 presented objective medical evidence of an impairment that “could reasonably be 18 expected to produce the pain or other symptoms alleged.” Garrison v. Colvin, 759 F.3d 19 995, 1014–15 (9th Cir. 2014). At this stage, the claimant need only show the impairment 20 could reasonably have caused some degree of the symptoms; he does not have to show 21 the impairment could reasonably be expected to cause the severity of symptoms alleged. 22 Id. The ALJ found Plaintiff met this step. AR 22. 23 1 If the claimant satisfies the first step, and there is no evidence of malingering, the 2 ALJ may only reject the claimant’s testimony “by offering specific, clear and convincing 3 reasons for doing so. This is not an easy requirement to meet.” Garrison, 759 F.3d at 4 1014–15. 5 The ALJ erred in rejecting Plaintiff’s testimony regarding the severity of her 6 physical symptoms. An ALJ may reject a claimant’s symptom testimony when it is 7 contradicted by the medical evidence. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 8 F.3d 1155, 1161 (9th Cir. 2008) (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th 9 Cir.1995)). But the ALJ must explain how the medical evidence contradicts the 10 claimant’s testimony. See Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 11 12 The ALJ reasoned the medical evidence contradicted Plaintiff’s physical symptom 13 testimony because it showed improvement. AR 22. But the ALJ failed to give any 14 specifics supporting this reasoning. The ALJ noted Plaintiff was found not disabled as of 15 August 23, 2017, in a prior ALJ decision. See AR 70–86. Plaintiff alleged an onset date 16 in this claim of August 28, 2017, which the ALJ determined was chosen because it was 17 the first treatment date after the prior decision rather than because of a change in 18 functioning. See AR 22–23. The ALJ then concluded the record going forward showed 19 improvement, so Plaintiff must not be disabled. See AR 23. The ALJ failed, however, to 20 point to any evidence after August 23, 2017, documenting improvement. See id. 21 Although the Court may draw inferences from the ALJ’s decision, it is not the job of the 22 Court to comb the administrative record to find conflicts supporting that decision. See 23 1 Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014). 2 The ALJ separately analyzed Plaintiff’s mental limitations, but failed to confront 3 Plaintiff’s actual testimony. The ALJ reasonably determined the evidence showed 4 Plaintiff’s mental health impairment—depression—did not cause significant limitations. 5 See AR 23–24. But Plaintiff did not testify her depression caused her mental limitations; 6 she testified her pain from her physical impairments caused her mental limitations. See 7 AR 52, 247, 300. As discussed above, the ALJ did not adequately analyze the medical 8 evidence regarding Plaintiff’s physical impairments, and thus failed to adequately address 9 Plaintiff’s testimony regarding the cause of her mental limitations. 10 The ALJ further erred in rejecting Plaintiff’s testimony based on her activities of 11 12 daily living. An ALJ may reject a plaintiff’s symptom testimony based on her daily 13 activities if they contradict her testimony or “meet the threshold for transferable work 14 skills.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (citing Fair v. Bowen, 885 F.2d 15 597, 603 (9th Cir. 1989)).
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 THERESA R., 8 Plaintiff, Case No. C20-5705 RAJ 9 v. ORDER REVERSING AND 10 REMANDING DEFENDANT’S 11 COMMISSIONER OF SOCIAL DECISION TO DENY BENEFITS SECURITY, 12 Defendant. 13 Plaintiff seeks review of the denial of her applications for Supplemental Security 14 Income and Disability Insurance Benefits. Plaintiff contends the ALJ erred by rejecting 15 her symptom testimony and the opinions of treating provider Karl Sembroski, PA. Dkt. 16 12, p. 1. As discussed below, the Court REVERSES the Commissioner’s final decision 17 and REMANDS the matter for further administrative proceedings under sentence four of 18 19 42 U.S.C. § 405(g). 20 BACKGROUND 21 Plaintiff is 51 years old, has at least a high school education, and has worked as a 22 hairstylist. Admin. Record (“AR”) (Dkt. 10) 26–27, 94, 236. On June 15, 2017, Plaintiff 23 applied for benefits, later alleging an amended disability onset date of August 28, 2017. 1 AR 94–95, 196–201, 211–19. Plaintiff’s applications were denied initially and on 2 reconsideration. AR 93–128. 3 ALJ Gerald Hill conducted a hearing on May 21, 2019, after which he issued a 4 decision finding Plaintiff not disabled. AR 15–28, 35–66. In relevant part, ALJ Hill 5 found Plaintiff had severe impairments of degenerative disc disease, fibromyalgia, 6 chronic pain syndrome, migraines, depression, and obesity. AR 18. The ALJ found 7 Plaintiff had the residual functional capacity (“RFC”) to perform light work with 8 additional exertional, postural, manipulative, and environmental restrictions. See AR 21. 9 The ALJ found plaintiff had additional cognitive and social limitations. See id. 10 The Appeals Council denied Plaintiff’s request for review, making the ALJ’s 11 12 decision the Commissioner’s final decision. AR 1–3. 13 DISCUSSION 14 The Court may set aside the Commissioner’s denial of Social Security benefits 15 only if the ALJ’s decision is based on legal error or not supported by substantial evidence 16 in the record as a whole. Ford v. Saul, 950 F.3d 1141, 1153–54 (9th Cir. 2020). 17 A. Plaintiff’s Symptom Testimony 18 Plaintiff contends the ALJ erred by rejecting her testimony regarding the severity 19 of symptoms from her physical and mental impairments.1 Dkt. 12, pp. 2–5. Plaintiff 20 testified she gets migraines three to four times a month, and they can last from 24 hours 21 22 1 Plaintiff inexplicably contends the ALJ failed to give “germane” reasons for rejecting her 23 symptom testimony. Dkt. 21, p. 2. An ALJ is required to meet a higher standard than this, and counsel risks prejudicing his own client by suggesting a lower standard. 1 up to three days. See AR 41–42, 250, 280. She testified she has flares of pain that can 2 last 24 hours, and it will be two to three days before she can function “a little bit better.” 3 AR 45. She testified she has carpal tunnel syndrome in her right hand. See AR 45, 242. 4 She testified she has limited use of her hands. AR 295. Plaintiff testified she has left 5 shoulder impingement. AR 45–46. She testified she can sit for a half hour at a time. See 6 AR 47, 242, 247, 300. She testified she can stand and/or walk for one to two hours at a 7 time. See AR 47, 242, 247, 300. She testified she has to lie down for a half hour to an 8 hour two or three times a day. AR 47. On a bad day, she will lie down for seven hours in 9 an eight-hour period. AR 49. Plaintiff testified she can lift 15 pounds on a good day, and 10 less on a bad day. See AR 48, 247, 300. She testified about four out of seven days a 11 12 week are bad days. AR 49–50. She testified at times her pain gets bad enough to affect 13 her ability to focus and concentrate. See AR 52, 247, 300. 14 The Ninth Circuit has “established a two-step analysis for determining the extent 15 to which a claimant’s symptom testimony must be credited.” Trevizo v. Berryhill, 871 16 F.3d 664, 678 (9th Cir. 2017). The ALJ must first determine whether the claimant has 17 presented objective medical evidence of an impairment that “could reasonably be 18 expected to produce the pain or other symptoms alleged.” Garrison v. Colvin, 759 F.3d 19 995, 1014–15 (9th Cir. 2014). At this stage, the claimant need only show the impairment 20 could reasonably have caused some degree of the symptoms; he does not have to show 21 the impairment could reasonably be expected to cause the severity of symptoms alleged. 22 Id. The ALJ found Plaintiff met this step. AR 22. 23 1 If the claimant satisfies the first step, and there is no evidence of malingering, the 2 ALJ may only reject the claimant’s testimony “by offering specific, clear and convincing 3 reasons for doing so. This is not an easy requirement to meet.” Garrison, 759 F.3d at 4 1014–15. 5 The ALJ erred in rejecting Plaintiff’s testimony regarding the severity of her 6 physical symptoms. An ALJ may reject a claimant’s symptom testimony when it is 7 contradicted by the medical evidence. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 8 F.3d 1155, 1161 (9th Cir. 2008) (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th 9 Cir.1995)). But the ALJ must explain how the medical evidence contradicts the 10 claimant’s testimony. See Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 11 12 The ALJ reasoned the medical evidence contradicted Plaintiff’s physical symptom 13 testimony because it showed improvement. AR 22. But the ALJ failed to give any 14 specifics supporting this reasoning. The ALJ noted Plaintiff was found not disabled as of 15 August 23, 2017, in a prior ALJ decision. See AR 70–86. Plaintiff alleged an onset date 16 in this claim of August 28, 2017, which the ALJ determined was chosen because it was 17 the first treatment date after the prior decision rather than because of a change in 18 functioning. See AR 22–23. The ALJ then concluded the record going forward showed 19 improvement, so Plaintiff must not be disabled. See AR 23. The ALJ failed, however, to 20 point to any evidence after August 23, 2017, documenting improvement. See id. 21 Although the Court may draw inferences from the ALJ’s decision, it is not the job of the 22 Court to comb the administrative record to find conflicts supporting that decision. See 23 1 Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014). 2 The ALJ separately analyzed Plaintiff’s mental limitations, but failed to confront 3 Plaintiff’s actual testimony. The ALJ reasonably determined the evidence showed 4 Plaintiff’s mental health impairment—depression—did not cause significant limitations. 5 See AR 23–24. But Plaintiff did not testify her depression caused her mental limitations; 6 she testified her pain from her physical impairments caused her mental limitations. See 7 AR 52, 247, 300. As discussed above, the ALJ did not adequately analyze the medical 8 evidence regarding Plaintiff’s physical impairments, and thus failed to adequately address 9 Plaintiff’s testimony regarding the cause of her mental limitations. 10 The ALJ further erred in rejecting Plaintiff’s testimony based on her activities of 11 12 daily living. An ALJ may reject a plaintiff’s symptom testimony based on her daily 13 activities if they contradict her testimony or “meet the threshold for transferable work 14 skills.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (citing Fair v. Bowen, 885 F.2d 15 597, 603 (9th Cir. 1989)). However, “the Social Security Act does not require that 16 claimants be utterly incapacitated to be eligible for benefits, and many home activities are 17 not easily transferable to what may be the more grueling environment of the workplace, 18 where it might be impossible to periodically rest or take medication.” Fair, 885 F.2d at 19 603 (internal citations omitted). The ALJ noted Plaintiff used Google and Facebook, 20 crocheted, washed her dog, cleaned her home, and worked part-time as a hairdresser. AR 21 24. Plaintiff’s participation in these activities does not demonstrate the kind of sustained 22 effort required by full-time work, nor has the ALJ identified how it contradicts Plaintiff’s 23 1 actual testimony. When coupled with the ALJ’s inadequate evaluation of the medical 2 evidence with respect to Plaintiff’s testimony, the ALJ’s discussion of Plaintiff’s 3 activities is not convincing to justify rejecting Plaintiff’s symptom testimony. The ALJ 4 therefore harmfully erred in rejecting Plaintiff’s symptom testimony. 5 B. Mr. Sembroski’s Opinions 6 Plaintiff argues the ALJ erred by rejecting Mr. Sembroski’s opinions. Dkt. 12, pp. 7 5–7. Mr. Sembroski was one of Plaintiff’s treating providers. See AR 611–19, 625–29. 8 On April 26, 2019, Mr. Sembroski completed a questionnaire from Plaintiff’s counsel 9 regarding Plaintiff’s limitations. See AR 798–800. Mr. Sembroski stated Plaintiff 10 suffered from migraines that occurred approximately three times a month, with an 11 12 average duration of 24 hours until she can return to participation in her activities of daily 13 living. AR 798. He opined Plaintiff suffered from fibromyalgia, which caused flares of 14 pain and fatigue three times per week. AR 799. Mr. Sembroski opined Plaintiff’s pain 15 would be severe enough to interfere with her attention, concentration, and persistence at 16 tasks for about 20 minutes during a typical hour. Id. Mr. Sembroski opined Plaintiff 17 could stand/walk for two to four hours in an eight-hour workday, and sit for four to six 18 hours. Id. He opined Plaintiff would not need to recline during an eight-hour workday. 19 Id. Mr. Sembroski agreed with Plaintiff’s counsel’s statement that if Plaintiff had 20 attempted even sedentary work since her alleged onset date of August 28, 2017, the 21 combination of her medical impairments would have resulted in absenteeism of three or 22 more days per month on a more probable than not basis. AR 800. He also agreed 23 1 Plaintiff’s medical conditions supported the need for rest days after working for two days 2 in a row. Id. 3 The ALJ found Mr. Sembroski’s opinions unpersuasive. AR 26. The ALJ 4 reasoned “the objective medical evidence does not support [Mr. Sembroski’s opined] 5 extreme limitations.” AR 26. The ALJ reasoned the medical evidence showed Plaintiff’s 6 was improving, and was able to stay fairly active. Id. 7 The Commissioner promulgated new regulations in 2017 that affect the Court’s 8 review of the ALJ’s analysis of Mr. Sembroski’s opinions. See Standards for 9 Consultative Examinations and Existing Medical Evidence, 56 Fed. Reg. 36932-01, 1991 10 WL 142361 (Aug. 1, 1991). First, physician assistants are now considered acceptable 11 12 medical sources. See 20 C.F.R. §§ 404.1502(a), 416.902(a). Second, the two most 13 important factors the ALJ must consider when evaluating a medical opinion are how 14 well-supported the opinion is, and how consistent it is with the other evidence in the 15 record. See 20 C.F.R. §§ 404.1520c(b)(2), (c)(1)–(2), 416.920c(b)(2), (c)(1)–(2). The 16 ALJ must explain how he considered these factors for each medical opinion. See 20 17 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). Regardless of this regulatory change, the 18 ALJ’s reasoning must still be supported by substantial evidence and free from legal error. 19 See Ford, 950 F.3d at 1153–54. 20 The ALJ’s analysis here does not satisfy the Commissioner’s new regulations. 21 Just as it was with Plaintiff’s symptom testimony, the ALJ’s analysis here is vague and 22 nonspecific. An ALJ must do more than state that an opinion is unsupported; he must 23 1 specify why the opinion was flawed and point to specific conflicts in the record. See 2 McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989); Burrell, 775 F.3d at 1138. The 3 ALJ mentioned that Plaintiff reported needing less pain medication, and had 4 improvement in her ability to function, but did not cite to any specific findings. The few 5 citations the ALJ gave earlier in his decision were largely to the period prior to Plaintiff’s 6 alleged disability onset date, and do not clearly conflict with Mr. Sembroski’s opinions or 7 show it lacked support. See AR 22–23. Again, it is not the Court’s job to comb the 8 record to find conflicts or facts supporting the ALJ’s decision. See Burrell, 775 F.3d at 9 1138. The ALJ thus failed to identify adequate reasons to reject Mr. Sembroski’s 10 opinions, and harmfully erred. 11 12 C. Scope of Remand 13 Plaintiff cursorily asks the Court to remand this matter for an award of benefits. 14 See Dkt. 12, p. 7. Except in rare circumstances, the appropriate remedy for an erroneous 15 denial of benefits is remand for further proceedings. See Leon v. Berryhill, 880 F.3d 16 1041, 1043 (9th Cir. 2017) (citing Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 17 1090, 1100 (9th Cir. 2014)). Plaintiff has not analyzed the factors the Court considers 18 before remanding for an award of benefits, nor shown any rare circumstances. The Court 19 will remand for further administrative proceedings. 20 On remand, the ALJ shall reevaluate Plaintiff’s symptom testimony and Mr. 21 Sembroski’s opinions. The ALJ shall reassess Plaintiff’s RFC, and all relevant steps of 22 the disability evaluation process. The ALJ shall conduct all further proceedings 23 1 necessary to reevaluate the disability determination in light of this opinion. 2 CONCLUSION 3 For the foregoing reasons, the Commissioner’s final decision is REVERSED and 4 this case is REMANDED for further administrative proceedings under sentence four of 5 42 U.S.C. § 405(g). 6 DATED this 10th day of March, 2021. 7
8 A
9 The Honorable Richard A. Jones 10 United States District Judge 11
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