(SS) Calleres v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: July 17, 2020
• Docket: 1:19-cv-00513
• Status: Unknown

Opinion

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4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 ANA MARIE CALLERES, Case No. 1:19-cv-00513-EPG 13 Plaintiff, FINAL JUDGMENT AND ORDER REGARDING PLAINTIFF’S SOCIAL 14 v. SECURITY COMPLAINT 15 COMMISSIONER OF SOCIAL SECURITY, 16 Defendant. 17 18 19 This matter is before the Court on Plaintiff’s complaint for judicial review of an 20 unfavorable decision by the Commissioner of the Social Security Administration regarding her 21 application for Disability Insurance Benefits and Supplemental Security Income. The parties have 22 consented to entry of final judgment by the United States Magistrate Judge under the provisions 23 of 28 U.S.C. § 636(c) with any appeal to the Court of Appeals for the Ninth Circuit. (ECF Nos. 7, 24 8). 25 At a hearing on July 9, 2020, the Court heard from the parties and, having reviewed the 26 record, administrative transcript, the briefs of the parties, and the applicable law, finds as follows: 27 \\\ 28 \\\ 2 Plaintiff first claims that the ALJ erred in not fully crediting Plaintiff’s testimony 3 regarding her symptoms. 4 According to the Ninth Circuit, A two-step process is employed for evaluating a 5 claimant's testimony regarding the severity and limiting effect of the 6 claimant's symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “First, the ALJ must 7 determine whether the claimant has presented objective medical evidence of an underlying 8 impairment ‘which could reasonably be expected to produce the pain or other symptoms 9 alleged.’” Lingenfelter v. Astrue, 504 F.3d at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 10 344 (9th Cir. 1991) (en banc)). When doing so, “the claimant need not show that her impairment 11 could reasonably be expected to cause the severity of the symptom she has alleged; she need only 12 show that it could reasonably have caused some degree of the symptom.” Smolen v. Chater, 80 13 F.3d 1273, 1282 (9th Cir. 1996). 14 “Second, if the claimant meets this first test, and there is no evidence of malingering, ‘the 15 ALJ can reject the claimant's testimony about the severity of [the claimant's] symptoms only by 16 offering specific, clear and convincing reasons for doing so.’” Lingenfelter, 504 F.3d at 1036 17 (quoting Smolen, 80 F.3d at 1281). A general assertion that the claimant is not credible is 18 insufficient; the ALJ must “state which ... testimony is not credible and what evidence suggests 19 the complaints are not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons 20 proffered must be “sufficiently specific to permit the reviewing court to conclude that the ALJ did 21 not arbitrarily discredit the claimant's testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 22 1995) (internal citation omitted). If the “ALJ's credibility finding is supported by substantial 23 evidence in the record, [the court] may not engage in second-guessing.” Thomas v. Barnhart, 278 24 F.3d 947, 959 (9th Cir. 2002) (citation omitted). 25 Here, the ALJ found objective medical evidence of an underlying impairment. The Court 26 looks, therefore, to whether the ALJ rejected the claimant’s testimony about the severity of his 27 symptoms by offering specific, clear and convincing reasons for doing so. 28 The ALJ stated as follows regarding Plaintiff’s symptom testimony: After careful consideration of the evidence, the undersigned finds that the 2 claimant’s medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant’s statements concerning the 3 intensity, persistence and limiting effects of those symptoms are not entirely consistent with the medical evidence and other evidence in the record for the 4 reasons explained in this decision. 5 . . .

6 Other treatment records indicate the claimant stated her prescribed medication helped her fatigue (Exhibit 4F, pp. 22, 42). Additionally, in subsequent physical 7 examinations, the claimant’s treating doctor indicated normal findings, including a 8 normal range of motion and strength in her spine and no apparent acute distress (Exhibit 4F, pp. 34, 39, 44, 54). 9 10 The medical evidence of record includes some objective findings to establish the claimant’s alleged impairments, however, the overall medical evidence of record 11 does not support more limitations than provided in the residual functional capacity herein. In a February 2015 physical examination, the doctor noted moderate 12 tenderness in the claimant’s left arm, bilateral back, bilateral sacrum, and bilateral 13 legs (Exhibit 5F, p. 11). In May 2015, the claimant complained of increased pain throughout her body, and specifically in her neck, shoulders, and arms (Exhibit 5F, 14 p. 8). The doctor maintained her prescribed pain medication but also recommended physical therapy to improve pain in her cervical spine and radicular 15 symptoms. (Exhibit 5F, p. 9). 16 Throughout 2015, the record demonstrates some findings in the record supporting 17 limitations in the range of motion of her cervical and lumbar spine (Exhibit 7F, pp. 19, 28, 31, 40). Yet, the doctor also indicated that the claimant’s condition 18 improved with treatment, such as electrical stimulation, massages, and chiropractic 19 care (Id.). Although the record shows that the claimant continued to seek treatment for stiff neck and back pain, the claimant also reported to her doctor that 20 chiropractic care was helpful and she had less pain after treatment. (Exhibit 7F, p. 51). 21

22 Moreover, the diagnostic evidence continued to reveal mild positive findings. An x-ray of the claimant’s left shoulder was normal showing unremarkable soft tissue 23 structures and normal glenohumeral articulation, acromioclavicular joint, and acromion (Exhibit 4F, p. 59). An x-ray of the claimant’s cervical spine was also 24 normal (Exhibit 4F, p. 61). Significantly, a magnetic resonance imaging (MRI) of 25 the claimant’s lumbar spine reveals unremarkable findings. A shallow, central and right paracentral disc herniation of the protrusion type was noted on the L5-S1 26 levels, however all other findings were normal (Exhibit 7F, p. 75). A lumbar spine x-ray also indicated minimal osteoarthritis (Exhibit 7F, p. 79). 27

28 Records through 2016 and 2017 show that the claimant received regular treatment Although the claimant reported persistent neck and back pain, the claimant’s 2 treating doctor maintained the claimant’s treatment plan with little or no significant changes (Exhibit 11F). The objective findings in the record do not 3 fully support the alleged severity of the claimant’s symptoms. Indeed, a physical examination performed in November 2017 revealed slightly decreased range of 4 motion in the claimant’s cervical spine and some spinal dysfunction (Exhibit 11F, 5 p. 6). The record also shows that the claimant reported that her treatment was somewhat effective in controlling her symptoms. She indicated in a subsequent 6 treatment record that she received a shot that provided relief and “seemed to help.” (Exhibit 11F, p. 2). 7

8 As an initial matter, that the ALJ does not specifically address the reasons for her findings 9 regarding symptom testimony. The ALJ stated, “the claimant’s statements concerning the 10 intensity, persistence and limiting effects of those symptoms are not entirely consistent with the 11 medical evidence and other evidence in the record for the reasons explained in this decision,” and 12 then proceeded to review the record. The ALJ never stated which testimony is not credible and 13 what evidence suggests the complaints are not credible. For this reason alone, the ALJ’s reasons 14 are thus not sufficiently specific. 15 In briefing and oral argument, the Commissioner argues that the ALJ’s decision sets forth 16 three reasons for rejecting Plaintiff’s symptom testimony: that certain normal objective findings 17 contradict her symptom testimony, that her symptoms improved with treatment, and that she 18 received only conservative treatment. 19 Regarding the normal findings, the ALJ pointed to the following: A.R. 421: “no acute 20 distress,” “normal range of motion, normal strength;” A.R. 426: “no acute distress,” “normal 21 range of motion, normal strength;” A.R. 431: “Normal Range of Motion, Normal Strength;” A.R. 22 451: same. The ALJ also points to an x-ray showing normal findings, (A.R. 446), and an MRI 23 showing unremarkable findings (A.R. 564, 565). But see A.R. 565 (“L5-S1 shallow and left 24 paracentral disc herniation of the protrusion type”). 25 In response, Plaintiff points to records showing objective findings consistent with 26 Plaintiff’s symptom testimony, including A.R. 403: “tender arms and legs;” A.R. 407: “tender 27 muscles;” A.R. 411: “tender left shoulder and decreased rom;” A.R. 355-356: “mild to moderate 28 2 49: “moderate tenderness;” A.R. 475-76: “moderate tenderness,” “moderate loss of motion in left 3 arm;” A.R. 546: “tender low back and arms and legs;” A.R. 707: “tender low back and arms and 4 legs.” Plaintiff also cites to the Ninth Circuit’s holding in Revels v. Berryhill, 874 F.3d 648, 656 5 (9th Cir. 2017): 6 Fibromyalgia is “a rheumatic disease that causes inflammation of the fibrous 7 connective tissue components of muscles, tendons, ligaments, and other 8 tissue.” Benecke, 379 F.3d at 589. Typical symptoms include “chronic pain throughout the body, multiple tender points, fatigue, stiffness, and a pattern of 9 sleep disturbance that can exacerbate the cycle of pain and fatigue.” Id. at 590. What is unusual about the disease is that those suffering from it have “muscle 10 strength, sensory functions, and reflexes [that] are normal.” Rollins v. Massanari, 11 261 F.3d 853, 863 (9th Cir. 2001) (Ferguson, J., dissenting) (quoting Muhammad B. Yunus, Fibromyalgia Syndrome: Blueprint for a Reliable Diagnosis, 12 Consultant, June 1996, at 1260). “Their joints appear normal, and further musculoskeletal examination indicates no objective joint swelling.” Id. (quoting 13 Yunus, supra, at 1260). Indeed, “[t]here is an absence of symptoms that a lay 14 person may ordinarily associate with joint and muscle pain.” Id. The condition is diagnosed “entirely on the basis of the patients' reports of pain and other 15 symptoms.” Benecke, 379 F.3d at 590. “[T]here are no laboratory tests to confirm 16 the diagnosis.” Id.

17 For a long time, fibromyalgia was “poorly understood within much of the medical community.” Id. Indeed, “[t]here used to be considerable skepticism that 18 fibromyalgia was a real disease.” Kennedy v. Lilly Extended Disability Plan, 856 19 F.3d 1136, 1137 (7th Cir. 2017). In previous decisions, we were reluctant to recognize fibromyalgia as an impairment that could render one disabled for Social 20 Security purposes. See Rollins, 261 F.3d at 857 (“Assuming, without deciding, that fibromyalgia does constitute a qualifying ‘severe impairment’ under the Act ....”). 21 14A sea-change occurred in 2012, when the SSA issued a ruling recognizing 22 fibromyalgia as a valid “basis for a finding of disability.”2 Social Security Ruling (“SSR”) 12-2P, at *2. The ruling provides two sets of criteria for diagnosing the 23 condition, based on the 1990 American College of Rheumatology Criteria for the Classification of Fibromyalgia and the 2010 American College of Rheumatology 24 Preliminary Diagnostic Criteria. Id. Pursuant to the first set of criteria, a person 25 suffers from fibromyalgia if: (1) she has widespread pain that has lasted at least three months (although the pain may “fluctuate in intensity and may not always be 26 present”); (2) she has tenderness in at least eleven of eighteen specified points on her body; and (3) there is evidence that other disorders are not accounting for the 27 pain. Id. at *2–3. Pursuant to the second set of criteria, a person suffers from 28 fibromyalgia if: (1) she has widespread pain that has lasted at least three months she has experienced repeated manifestations of six or more fibromyalgia 2 symptoms, signs, or co-occurring conditions, “especially manifestations of fatigue, cognitive or memory problems (“fibro fog”), waking unrefreshed, depression, 3 anxiety disorder, or irritable bowel syndrome”; and (3) there is evidence that other disorders are not accounting for the pain. Id. at *3. 4

5 Therefore, diagnosis of fibromyalgia does not rely on X-rays or MRIs. Further, SSR 12-2P recognizes that the symptoms of fibromyalgia “wax and wane,” and 6 that a person may have “bad days and good days.” SSR 12-2P, at *6. In light of this, the ruling warns that after a claimant has established a diagnosis of 7 fibromyalgia, an analysis of her RFC should consider “a longitudinal record 8 whenever possible.” Id.

9 Revels v. Berryhill, 874 F.3d 648, 656–657 (9th Cir. 2017). 10 The Court finds that the ALJ’s reliance on instances of normal range of motion, no acute 11 distress, and normal x-ray and MRI findings to discount Plaintiff’s symptom testimony does not 12 constitute a clear and convincing reason. The ALJ did not present any medical evidence that such 13 normal tests contradict Plaintiff’s symptoms, especially related to Plaintiff’s fibromyalgia. 14 Moreover, the Ninth Circuit has explained that those who suffer fibromyalgia do not show 15 decreased muscle strength, and their symptoms do not show up on MRIs or x-rays. On the other 16 hand, Plaintiff has demonstrated objective evidence that fits the criteria outlined by the Ninth 17 Circuit for fibromyalgia. 18 The Court also notes that doctors who examined her at the time, and observed the normal 19 results listed above, nevertheless diagnosed her consistent with her stated symptoms. For 20 example, following one physical examination showing “normal range of motion, normal 21 strength,” the physician, Dr. Grasser, includes diagnoses of “chronic fatigue, fibromyalgia” 22 among others. (A.R. 421). 23 Turning to the ALJ’s next category of reasons, the ALJ pointed to places in the record 24 where Plaintiff had stated that treatment improved her condition. For example: A.R. 473: doctor 25 prescribes physical therapy (but does not state if they were effective); A.R. 508: noting 26 “improved” next to massage related to muscle spasm; A.R. 517: noting muscle spasm in pelvic 27 region has “improved” response to treatment; A.R. 31: noting “improved” next to treatments 28 2 A.R. 540: noting under “history of Present Illness,” “I have headache and stiff neck and upper 3 back pain. I have some LBP as usual . . . Chiro care is helpful, I have noted less pain with tx.;” 4 A.R. 591: “I have neck pain with fibromyalgia acting up, even to the right up back. I went to Dr. 5 Grasser for relief recently, got a shot that seemed to help.” 6 While it is true that there is evidence in the record of improvement, nothing indicates that 7 improvement has alleviated the symptoms Plaintiff includes in her testimony. Nor does it state 8 what the condition was before or after the improvement. Moreover, these treatments were done 9 under the supervision of the treating physician, discussed below, who found very limiting 10 impairments notwithstanding these treatments. In this context, indications in treatment notes of 11 “improvement” do not comprise clear and convincing reasons for discounting Plaintiff’s symptom 12 testimony. 13 Finally, the ALJ’s reason of “regular treatment for her alleged impairments that were 14 rather routine and conservative in nature” is unsupported. As cited above, Plaintiff has 15 undertaken treatment including at least “chiro” care, massage, shots, ultrasound, and electronic 16 muscle stimulation. Moreover, the ALJ does not give any conservative treatment that is available 17 for such impairments, especially fibromyalgia, that the Plaintiff did not use. 18 The Court finds that the ALJ’s discounting of Plaintiff’s symptom testimony is not 19 sufficiently specific, clear and convincing. 20 II. Medical Opinion 21 Next, Plaintiff argues that the ALJ failed to provide specific and legitimate reasons based 22 on substantial evidence to set aside Dr. Grasser’s opinion. 23 In weighing medical source opinions in Social Security cases, there are three categories of 24 physicians: (i) treating physicians, who actually treat the claimant; (2) examining physicians, 25 who examine but do not treat the claimant; and (3) non-examining physicians, who neither treat 26 nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). An ALJ must 27 provide clear and convincing reasons that are supported by substantial evidence for rejecting the 28 uncontradicted opinion of a treating or examining doctor. Id.at 830–31; Bayliss v. Barnhart, 427 2 opinion in favor of another physician's opinion without first providing specific and legitimate 3 reasons that are supported by substantial evidence. Bayliss, 427 F.3d at 1216; 20 C.F.R. § 4 404.1527(c)(4) (an ALJ must consider whether an opinion is consistent with the record as a 5 whole); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Tommasetti v. Astrue, 533 F.3d 6 1035, 1041 (9th Cir. 2008) (finding it not improper for an ALJ to reject a treating physician's 7 opinion that is inconsistent with the record). 8 Dr. Grasser is a treating physician, who treated Plaintiff for more than two years. Her 9 opinion is contradicted by non-examining state agency opinions. The Court looks to whether 10 Plaintiff has set forth specific and legitimate reasons supported by substantial evidence, bearing in 11 mind that, all things considered, Dr. Grasser’s opinion as a long-term treating physician should be 12 given deferential weight in comparison to the opinions of non-examining consulting physicians. 13 The ALJ found as follows regarding Dr. Grasser’s opinion:

14 The undersigned has also read and considered the opinion of Angela Grasser, 15 M.D., and assigned little weight (Exhibit 9F). Dr. Grasser opined the following functional limitations, including: she can rarely lift or carry less than 10 pounds; 16 she can never perform any postural activities; and she would miss more than 4 days per month due to her impairments. Dr. Grasser’s opinion is without 17 substantial support from any objective clinical or diagnostic findings, which 18 obviously renders this opinion less persuasive. Moreover, the opinion expressed is quite conclusory, providing very little explanation of the evidence relied on in 19 forming that opinion. She assesses functional limitations that are much more restrictive than the evidence supports. For example, where the claimant’s 20 treatment notes show moderate tenderness or some limitations in the claimant’s 21 range of motion of her cervical and lumbar spine, Dr. Grasser assesses that the claimant has no ability to perform any postural activities (Exhibit 7F). Dr. 22 Grasser’s overall assessment is not entirely consistent with the medical evidence of 23 record and thereform, the undersigned assigned little weight to her opinion.

24 In addition, the undersigned has also read and considered the opinion of Dr. Grasser as found in exhibit 10F, and assigns little weight. Dr. Grasser opined that 25 the claimant could not sit, stand, or walk more than 2 hours in an 8-hour day, he 26 [sic] also indicated that the claimant could not sit or stand more than 10 minutes at a time. Dr. Grasser also opined similarly restrictive functional limitations without 27 referring to any clinical or medical evidence in the record to support his [sic] assessment. Furthermore, Dr. Grasser’s assessment of severely restrictive 28 mild or normal findings. (Exhibit 7F). 2 3 Regarding the ALJ’s reason that “Dr. Grasser’s opinion is without substantial support 4 from any objective clinical or diagnostic findings, which obviously renders this opinion less 5 persuasive. Moreover, the opinion expressed is quite conclusory, providing very little 6 explanation of the evidence relied on in forming that opinion,” Dr. Grasser’s opinion is set forth 7 on the form provided. All portions of the form are complete. The form does not ask for an 8 explanation of the evidence relied upon. The ALJ also fails to address the very substantial 9 records related to Dr. Grasser’s long-term treatment of Plaintiff in Exhibit 7F (84 pages). 10 Regarding the ALJ’s reason based on mild or normal findings, the findings referenced are 11 not inconsistent with the limitations given for the reasons described above in connection with 12 Plaintiff’s symptom testimony. 13 Thus, the Court concludes that the ALJ failed to provide specific and legitimate reasons 14 supported by substantial evidence for discounting the opinion of Plaintiff’s treating physician, Dr. 15 Grasser. 16 III. Lay Testimony 17 Finally, Plaintiff claims that ALJ failed to provide a germane reason for disregarding 18 Plaintiff’s spouse’s testimony. 19 Any person who gives testimony about a claimant's impairments can qualify as a lay 20 witness. SSR 06-03p, 2006 WL 2329939, at *2. Lay-witness testimony about a claimant's 21 symptoms is competent evidence that the ALJ must consider unless she “expressly determines to 22 disregard such testimony and gives reasons germane to each witness for doing so.” Lewis v. 23 Apfel, 236 F.3d 503, 511 (9th Cir. 2001). The ALJ’s reasons for rejecting lay-witness testimony 24 must be specific and germane. Bruce v. Astrue, 557 F.3d 113, 115 (9th Cir. 2009). 25 The ALJ discussed the third-party statement as follows:

26 The undersigned has also read and considered the Third Party Function Report the claimant’s husband, Ramon Calleres, completed on March 23, 2015 (Exhibit 5E). 27 While a layperson can offer an opinion on the severity of the claimant’s symptoms 28 in relationship to the claimant’s ability to work, the opinion of a layperson is far as relied on herein. Thus, the undersigned has given this statement only partial 2 weight. The undersigned considered this statement about the claimant’s physical and mental limitations and adopted the appropriate limitations. However, the 3 assertions of the claimant’s husband regarding the claimant’s limitations are not persuasive of additional restrictions in the residual functional capacity, as the 4 clinical or diagnostic medical evidence does not support his statement. 5 6 (A.R. 23). 7 The ALJ’s first reason, that lay testimony is given less weight than medical testimony, is 8 not a germane reason to give the opinion little weight. Such a reason would apply to all lay 9 testimony. While it is true that a medical opinion might be due greater weight than a 10 contradictory lay opinion, such is not the case here. In this case, the treating physician gave 11 opinions consistent with the lay opinion, and that consistency should have been given some 12 weight in determining the validity of both. This is especially true when dealing with 13 fibromyalgia, which is less susceptible to objective tests as discussed above. In those 14 circumstances, lay opinion about Plaintiff’s symptoms should not be discounted merely because it 15 is not a medical opinion. 16 The ALJ’s second reason, that the lay opinion was not supported by clinical or diagnostic 17 medical evidence, could be a germane reason if supported by the record. However, this reason is 18 not supported by the record for the reasons described above. The ALJ also does not specifically 19 compare any portion of the lay testimony with any clinical or diagnostic medical evidence. 20 The ALJ’s dismissal of this lay testimony is particularly harmful when put in context of 21 the rest of the ALJ’s opinion. Here, the central impairment, fibromyalgia, cannot be tracked by 22 ordinary diagnostics. It is centrally important, therefore, to evaluate the testimony of those who 23 have observed the Plaintiff and assess their consistency and credibility. The ALJ did not do so 24 here. Instead, she discounted the testimony of all three witnesses who have observed Plaintiff— 25 Plaintiff herself, her treating physician, and her spouse—in favor of the medical opinion of non- 26 examining consulting physicians for reasons contrary to Ninth Circuit law. Such evaluation was 27 legal error. 28 \\\ woot 4:40 VV SY MMIC ew PI se AY tt □ st 1 IV. Remedy 2 The parties did not brief the appropriate remedy in this case. Although it appears likely 3 | that Plaintiff will qualify for benefits once the challenged opinions are credited as true, the Court 4 | hesitates to make this conclusion without direction from the parties and citations comparing the 5 || opinions with testimony from the Vocational Expert. Thus, in the abundance of caution, the 6 | Court will remand the case for further proceedings consistent with this opinion. 7 V. Conclusion 8 Accordingly, the decision of the Commissioner of the Social Security Administration is 9 | REVERSED and REMANDED for further administrative proceedings consistent with this 10 | opinion. 11 IT IS SO ORDERED. 13 | Dated: _ July 17, 2020 [sf ey — 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28