Shroyer v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: December 4, 2020
• Docket: 2:20-cv-00002
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 ZONA S., 8 Plaintiff, CASE NO. 2:20-cv-00002-BAT 9 v. ORDER REVERSING AND 10 REMANDING FOR FURTHER COMMISSIONER OF SOCIAL SECURITY, PROCEEDINGS 11 Defendant. 12

13 Plaintiff appeals the ALJ's decision finding her not disabled. The ALJ found 14 degenerative disc disease of the lumbar, thoracic and cervical spine, obesity, gastroesophageal 15 reflux disease (GERD), asthma, obstructive sleep apnea, shoulder impairment, major depressive 16 disorder and osteoarthritis are severe impairments; Plaintiff has the residual functional capacity 17 (RFC) to perform less than the full range of light work subject to several physical, postural, 18 environments and mental limitations; and she can perform past relevant work and is therefore not 19 disabled. Tr. 20-30. 20 Plaintiff contends the ALJ misevaluated the medical evidence and her testimony and 21 failed to develop the record as the Appeals Council ordered on remand. As relief she asks the 22 Court to remand the case for an award of benefits. Dkt. 19 at 1-2. The Court agrees the ALJ 23 harmfully erred but disagrees benefits should be awarded at this juncture. Accordingly, the Court 1 REVERSES the Commissioner’s final decision and REMANDS the matter for further 2 administrative proceedings under sentence four of 42 U.S.C. § 405(g). 3 DISCUSSION 4 A. The Medical evidence.

5 Plaintiff contends the ALJ misevaluated the opinions of Carl Janzen, M.D. and Marlon 6 Balauag, M.D.1 7 1. Dr. Janzen 8 The ALJ noted Dr. Janzen completed a DSHS form evaluation in which he opined 9 Plaintiff can stand ten minutes at a time; walk twenty feet in two hours; sit one hour over a two 10 hour period in an eight hour workday; lift no more than ten pounds; and work no more than ten 11 hours per week. Tr. 28. 12 The ALJ rejected Dr. Janzen’s opinions as inconsistent with treatment records the ALJ 13 deemed “not reflective” of the limitations the doctor assessed because "examinations and 14 imaging was generally normal." Id. Substantial evidence does not support this finding. Dr.

15 Janzen’s treatment records indicate Plaintiff has long suffered from chronic pain complaints the 16 doctor opined were related to her back and neck problems, which were objectively established by 17 imaging results and clinical examinations. See, e.g., Tr. 838 (noting chronic pain, some increase 18 in paresthesia in her feet; chronic pain “spinal stenosis and facet arthropathy; pain agreement); 19 Tr. 840 (low back pain radiating into both legs, L-5 disc compression based on MRI results; 20 numbness and tingling of right arm; arm and shoulder pain); Tr. 843 (pain worsening with 21 increased lower back pain and radiation into left leg with paresthesia; Plaintiff had ESI previous 22 fall, which did not help; pain interferes with daily activities at a 4/10); Tr. 848 (noting increase in 23

1 The ALJ refers to Dr. Balauag as Dr. Balaug. Tr. 28. 1 Vicodin dosage for pain); Tr. 849 (returning of cervical radiculopathy symptoms with numbness 2 in legs and arms); Tr. 855 (walking normally, with normal ROM but “[c]hronic pain” requires an 3 “increase [in] hydrocodone [dosage]”; referrals for lumbar and cervical radiculopathy; knee 4 pain); Tr. 856 (pain is stable); Tr. 866 (low back pain with bilateral radiation into both legs for

5 past four days); Tr. 867 (poor ROM returned; pain is moderate); Tr. 870-71 (“back pain;” 6 thoracic MRI is normal; degenerated disks but no stenosis; facet osteoarthritis, with bilateral 7 mild to moderate narrowing of discs); Tr. 874 (MRI reviewed with Plaintiff; might need 8 narcotics); Tr. 879 (positive musculoskeletal findings; decreased sensation is all in toes and 9 heels; lumbar paraspinal tenderness present with back pain and peripheral neuropathy); Tr. 880 10 (citing no improvement in leg pains and that Gabapentin makes Plaintiff sleepy during the day); 11 Tr. 887 (chronic recurrent abdominal pain associated with pancreatitis); Tr. 891 (noting 12 pancreatic pain is gone but back pain requires Plaintiff to take hydrocodone); Tr. 894 13 (experiencing leg pain); Tr. 899 (continuing pain for over 4 months – Doctor suggests instituting 14 formal chronic pain agreement; chronic back pain with spinal stenosis; neck pain with chronic

15 right sided arm pain with paresthesia for months/years); Tr. 899 (pain is a 7 out of 10); and Tr. 16 901 (interference of pain with daily activities scored at a 4 out of 10). 17 Thus, Dr. Jantzen's treatment records show Plaintiff suffered chronic pain, her pain 18 waxed and waned, and that Plaintiff’s complaints were caused by her neck and spinal issues. 19 The record thus paints a very different picture than the one the ALJ painted. The ALJ's finding 20 portrays Plaintiff's examinations and imagining as "generally normal," but Dr. Janzen's records 21 establish Plaintiff's examinations were frequently not normal, that she had persistent chronic pain 22 requiring narcotic pain medication, and that imaging revealed abnormal findings of the spine. 23 1 The Court concludes substantial evidence does not support the ALJ's rationale, and the ALJ 2 erred. 3 The ALJ also rejected Dr. Janzen’s opinion because the doctor “did not explain these 4 extreme limitations other than to list the [Plaintiff’s] diagnoses.” Tr. 28. The ALJ need not

5 accept a treating doctor's opinion that is brief, conclusory, and inadequately supported by clinical 6 findings. Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (citation omitted). In Ford, the Court 7 of Appeals affirmed the ALJ’s rejection of a treating physician opinion because it “lacked 8 explanation” and his opinion was contradicted by the record. Id. at 1155. However, in contrast to 9 Ford, while Dr. Janzen’s report did not provide an explanation for the opinions, his opinions are 10 not contradicted or inconsistent with his treatment records. As noted above, Dr. Janzen’s opinion 11 contains abnormal examination findings, accounts of plaintiff's chronic pain, and the need for 12 narcotic medications. Because Dr. Janzen’s opinion is consistent with his extensive treatment 13 records, the ALJ erred in rejecting the opinions as lacking in explanation. 14 The Court accordingly concludes the ALJ erred in rejecting Dr. Jantzen's opinions. The

15 error was harmful because the RFC determination fails to account for all limitations assessed by 16 the doctor. 17 2. Dr. Balauag 18 Plaintiff also contends the ALJ misevaluated Dr. Balauag's opinion. The ALJ discounted 19 Dr. Balauag's opinion Plaintiff was "incapable of even sedentary work." Tr. 28. In rejecting Dr. 20 Balauag's opinions, the ALJ first stated the doctor "had been treating the claimant for a year and 21 a half." Tr. 28. This is not a valid reason. While an ALJ can consider the length of treatment a 22 doctor provides in weighing the doctor's opinions, it is unreasonable to suggest a treating 23 relationship of one and half years is grounds to reject the opinion. See Soper v. Astrue, 2011 WL 1 3205412, at *7 (July 26, 2011) (ALJ erred in rejecting treating physician’s opinion when doctor 2 had treated plaintiff for one year). This case does not involve a treating doctor who barely knew 3 plaintiff or a situation where the ALJ discounted Dr. Balauag's opinion in favor of a treating 4 doctor who provided plaintiff for a longer time period and more intensively. Dr. Balauag's was

5 also largely consistent with Dr. Jantzen's opinions. The Court accordingly concludes the ALJ 6 erred. 7 The ALJ also rejected Dr. Balauag’s opinion on the grounds "he provided little 8 explanation beyond the list of conditions." Tr. 28-29. In support, the ALJ stated the doctor 9 opined Plaintiff required a 5-10 minute break every 30-40 minutes "but only referred to the 10 claimant's pain"; that the doctor opined Plaintiff should not engage in "climbing, despite the fact 11 the claimant lived on the second floor of her apartment building"; and the doctor included a 12 number of mental limitations without any basis for such limitations. Tr. 29. Substantial evidence 13 does not support these findings. 14 As the ALJ acknowledged, Dr. Balauag opined Plaintiff's pain limited her to working for

15 short periods of time before needing a break. But, the ALJ provides no explanation why Dr. 16 Balauag is incorrect in opining Plaintiff's pain limits her in this way. Because “conclusory 17 reasons will not justify an ALJ's rejection of a medical opinion,” the ALJ's unexplained 18 explanation for rejecting Dr. Balauag's opinion is erroneous. Regennitter v. Comm'r Soc. Sec. 19 Admin., 166 F.3d 1294, 1299 (9th Cir.1999). 20 The ALJ's finding that Dr. Balauag's opinion Plaintiff should not engage in "climbing" as 21 inconsistent with Plaintiff's residence in a second-floor apartment misapprehends the doctor's 22 opinion. Tr. 29. Dr. Balauag provided two assessments. The first noted Plaintiff cannot climb 23 ladders and should "rarely climb stairs," Tr. 1394; the second noted Plaintiff cannot climb stairs 1 and can rarely climb ladders. Tr. 1398. The second assessment is obviously a typographical 2 error given the first assessment, and the irrationality of being able to climb ladders and not stairs. 3 The only rational way to interpret Dr. Balauag's two reports is he intended to limit Plaintiff to 4 rarely climbing stairs. Contrary to the ALJs finding this limitation is consistent with Plaintiff

5 living in a second-floor apartment. This is because Plaintiff testified, she rarely left her 6 apartment, and hence rarely climbed stairs. Tr. 161. 7 The ALJ's rejection of Dr. Balauag's opinion Plaintiff would be off task as "made without 8 explanation" fails to account for the doctor's findings that Plaintiff symptoms include "fatigue, 9 sleeping difficulties," and that her medications cause "dizziness, drowsiness." Tr. 1396-97. The 10 ALJ’s finding is accordingly not supported by substantial evidence. 11 Finally, the ALJ rejected Dr. Balauag's opinions because the doctor "listed conditions I 12 did not find rose to the level of constituting severe impairments," such as acute pancreatitis, 13 esophagus problems, insomnia, gastroparesis, atrial fibrillation, hypertension, chronic pain, 14 nausea and angina. The ALJ erred because he found these impairments are medically

15 determinable, Tr. 20, and to determine plaintiff's RFC, the ALJ is required to consider all 16 impairments, including non-severe medically determined impairments, related symptoms such as 17 pain, and all relevant medical evidence. 20 CFR 404.1545(a). Additionally, chronic pain is a 18 major component of Plaintiff's disability claim. The ALJ found chronic pain is medically 19 determinable, Tr. 20, and her medically determinable impairments could reasonably be expected 20 to cause her alleged symptoms. Hence the ALJ was required to consider her pain complaints 21 rather than reject opinions based upon such complaints. 22 The ALJ also noted Dr. Balauag listed conditions the ALJ deemed not medically 23 determinable: neuropathy and anxiety. Tr. 29. As a treating doctor, one would expect Dr. 1 Balauag to list all medical conditions contained in Plaintiff's record. The inclusion of all 2 conditions thus is a not a reasonable basis to reject all of the doctor's opinions. Further, Dr. 3 Balauag did not opine Plaintiff was limited due to neuropathy and anxiety. Rather, the doctor 4 diagnosed plaintiff with chronic pain, lumbar arthropathy, neuropathy, AFIB, GERD, and major

5 depression, Tr. .1392 that he opined caused low back pain, dizziness, fatigue, weakness, 6 numbness, chest and epigastric pain, palpitations, limited flexion and extension of the lower back 7 and epigastric tenderness. 8 The Court accordingly concludes the ALJ erred in discounting Dr. Balauag's opinions. 9 The error was harmful because the RFC determination fails to account for all limitations assessed 10 by the doctor. 11 B. Plaintiff’s Testimony 12 The ALJ did not find malingering and thus was required to making specific findings 13 stating clear and convincing reasons supported by substantial evidence to reject plaintiff’s 14 testimony. Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th Cir. 1996). The ALJ rejected Plaintiff's

15 testimony as inconsistent with the "longitudinal record," Tr. 24. In support, the ALJ first found 16 Plaintiff's claims of "disabling physical limitations . . . are out of proportion with the objective 17 evidence." Tr. 24. However, an ALJ may not reject a claimant’s subjective complaints based 18 solely on lack of objective medical evidence. Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 19 2004) (quoting Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir.2001). 20 The ALJ went further and found imaging results of Plaintiff's spine were “benign” 21 because they showed “nerve root compromise" despite allegations of radiation of pain into 22 [Plaintiff’s] legs and feet,” and “only mild findings with no significant foraminal encroachment 23 or canal stenosis” of the cervical spine. Tr. 24. However, as noted above, Plaintiff's treating 1 doctors opined Plaintiff's imagining results are abnormal and cause chronic pain among other 2 things. 3 The ALJ found Plaintiff's exam findings indicated normal strength, and range of 4 movement. But these findings do not necessarily contradict her pain complaints. TR. 25. For

5 example, one could have normal strength but nonetheless still suffer from chronic pain. 6 Additionally, no doctor equated normal strength as inconsistent with chronic pain. 7 The ALJ noted Plaintiff's exams indicated a "lack of acute distress. " But Plaintiff's 8 records do not show she was not in distress. Rather they show she suffers from persistent and 9 chronic pain. Compare Tr. 798 (cited by ALJ for “no acute distress”), with Tr. 795 (noting 10 Plaintiff’s “longstanding history of chronic pain); compare Tr. 1437 (no acute distress), with Tr. 11 1433 (Plaintiff’s chief complaint in presenting is chronic pain and a need for pain management); 12 compare Tr. 1448 (“no acute distress” as listed under the physical exam) with Tr. 1444 13 (“Chronic and persistent left shoulder pain” and “worsening pain on the joint and scapula.”); 14 compare Tr. 1479 (no distress noted on physical exam) with Tr. 1476 (“Report[ing] pain in

15 [Plaintiff’s] neck and back are gradually getting worse); Tr. 1433-38 (noting chronic pain in mid 16 and lower back without much relief from morphine; average pain intensity at a 7/10 between 17 2014-2015); Tr. 1475-80 (presenting with a chief complaint of pain; reporting increase in neck 18 and back pain; still taking narcotics for pain; average pain intensity at a 7/10 between 2016- 19 2017); Tr. 800 (worsening of back pain, radiating into legs; standing, walking, and sitting all 20 worsen the pain, while laying down relieves it). 21 The ALJ also discounted Plaintiff's testimony about how long she could walk or stand on 22 the grounds a consultative examination found unremarkable gait, and she could tandem walk and 23 walk heel to toe without difficulty. Tr. 25. But Plaintiff did not claim she could not perform these 1 actions. Rather she claims she cannot stand or walk for as long as the ALJ found – six hours in 2 an eight-hour day. The evidence the ALJ cites does not contradict Plaintiff's testimony. 3 The ALJ also found the treatment Plaintiff receives is not indicative of the severe 4 limitations alleged. The ALJ acknowledged Plaintiff is prescribed several medication including

5 gabapentin and narcotics and received injections. Tr. 25. The ALJ points to no evidence that 6 Plaintiff's doctors believed she does not suffer from chronic and severe pain and that her 7 treatment is commensurate with only mild and non-severe pain. The ALJ further points to no 8 evidence that there are additional treatments that Plaintiff could have but declined to accept that 9 would effectively resolve her chronic pain. Hence the suggestion that Plaintiff's treatment 10 contradicts her complaints is not supported by substantial evidence. 11 The ALJ also noted in mid-2017 "she was tapered off narcotics," suggesting Plaintiff's 12 chronic pain was either not severe or was resolved by that time. Tr. 25. Substantial evidence does 13 not support the finding. Plaintiff's records show that in June 2017, Dr. Balauag noted that based 14 upon pain management recommendations we "will start her gradual taper off the narcotics." Tr.

15 1487. But by October 2017 Plaintiff's records showed her pain had worsened due to the taper. 16 Dr. Balauag noted in a chronic pain follow-up record "patient is suffering from severe pain since 17 we steadily cutback on her pain meds. . . . she reports that the pain in her neck and midback are 18 worse overall." Tr. 1501. 19 The ALJ also noted Plaintiff mentioned the use of a walker. Tr. 25. The ALJ appears to 20 reject Plaintiff's testimony because no assistive ambulatory device has been prescribed and 21 Plaintiff has been able to walk without a device even when her pain is bad. Id. The ALJ 22 acknowledged that a walker was "ordered" by physical therapy; the finding no device was every 23 prescribed is not supported. Additionally, Plaintiff did not testify that she needed a walker every 1 day in order to ambulate, though she expressed fears that she might need a device in the future. 2 Thus, the lack of a prescribed walker does not contradict her testimony. The ALJ accordingly 3 erred 4 The ALJ also rejected Plaintiff’s testimony as inconsistent with her activities because

5 "she was moving a heavy television with her daughter in 2013." Tr. 26. But the medical record 6 shows Plaintiff's one attempt to help her daughter was a failure and resulted in Plaintiff falling, 7 suffering more severe pain and going to the emergency room. Tr. 1303. The ALJ also noted in 8 2017 Plaintiff helped friends clean up mold. Ostensibly the ALJ found this contradicts Plaintiff's 9 claims of being sensitive to allergens. The record does not support such as finding because after 10 helping her friends, Plaintiff ended up with a sinus infection, cough and sore throat. Tr. 1487. 11 Finally, the ALJ discounted Plaintiff's testimony about limitation flowing from her 12 abdominal or gastrointestinal conditions, asthma, COPD, sleep apnea, heart issues and mental 13 conditions such as depression. Tr. 26-27. Plaintiff does not specifically challenge the ALJ's 14 findings and the Court accordingly will not disturb the ALJ's determinations.

15 C. Compliance with Appeals Council Remand Order 16 Plaintiff contends the ALJ's decision should be reversed because the ALJ failed to 17 comply with the Appeals Council's order of remand. Dkt. 19 at 17. The Court may not reverse a 18 final disability decision based upon an ALJ's alleged failure to follow a remand order. See 19 Strauss v. Comm'r of the Soc. Sec. Admin., 635 F.3d 1135, 1136–1138 (9th Cir. 2011); Ramirez 20 v. Shalala, 8 F.3d 1449, 1451 (9th Cir. 1993). The Court accordingly rejects the argument. 21 22 CONCLUSION 23 1 Plaintiff seeks a remand for an award of benefits. The Court has the discretion to remand 2 the case for further proceedings or to award benefits. See Marcia v. Sullivan, 900 F.2d 172, 176 3 (9th Cir. 1990). The Court may remand for an award of benefits where “the record has been 4 fully developed and further administrative proceedings would serve no useful purpose.”

5 McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002) (citation omitted). If additional 6 proceedings can remedy defects in the original administrative proceedings, a social security case 7 should be remanded for further proceedings. Id. at 1076. 8 Only in rare circumstances should a case be remanded for benefits. See Treichler v. 9 Colvin, 775 F3d 1090 (9th Dec 24, 2014). The Court concludes that this is not that rare case. 10 The ALJ erred in evaluating evidence and the ALJ should reassess and reweigh the evidence. 11 This is a task reserved for the commissioner and best performed by a fact finder. Accordingly, 12 as there are outstanding issues to resolve, and further proceedings would be useful, the Court 13 concludes the matter should be remanded for further administrative proceedings. 14 For the foregoing reasons, the Commissioner’s decision is REVERSED, and this case is

15 REMANDED for further administrative proceedings under sentence four of 42 U.S.C. § 405(g) 16 On remand, the ALJ shall reevaluate plaintiff's testimony and the opinions of Drs. 17 Jantzen and Balauag, develop the record and redetermine Plaintiff's RFC as needed, and proceed 18 to the remaining steps as appropriate. 19 DATED this 4th day of December 2020. 20 A 21 BRIAN A. TSUCHIDA United States Magistrate Judge 22 23