(SS) Lee v. Commissioner of Social Security

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CRISHNA SUZANN LEE, Case No. 2:22-cv-00068-JDP (SS) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND 13 v. DENYING COMMISSIONER’S MOTION FOR SUMMARY JUDGMENT 14 KILOLO KIJAKZI, Acting Commissioner of Social Security ECF Nos. 17 & 19 15 Defendant. 16 17 Plaintiff challenges the final decision of the Commissioner of Social Security 18 (“Commissioner”) denying her application for Disability Insurance Benefits (“DIB”) under 19 Title II of the Social Security Act. Both parties have moved for summary judgment. ECF 20 Nos. 17 & 19. For the reasons discussed below, plaintiff’s motion for summary judgment is 21 granted, the Commissioner’s is denied, and this matter is remanded for further proceedings. 22 Standard of Review 23 An Administrative Law Judge’s (“ALJ”) decision denying an application for disability 24 benefits will be upheld if it is supported by substantial evidence in the record and if the correct 25 legal standards have been applied. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th 26 Cir. 2006). “‘Substantial evidence’ means more than a mere scintilla, but less than a 27 preponderance; it is such relevant evidence as a reasonable person might accept as adequate to 28 support a conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 1 “The ALJ is responsible for determining credibility, resolving conflicts in medical

2 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.

3 2001) (citations omitted). “Where the evidence is susceptible to more than one rational

4 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.”

5 Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). However, the court will not affirm on

6 grounds upon which the ALJ did not rely. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)

7 (“We are constrained to review the reasons the ALJ asserts.”).

8 A five-step sequential evaluation process is used in assessing eligibility for Social

9 Security disability benefits. Under this process the ALJ is required to determine: (1) whether the

10 claimant is engaged in substantial gainful activity; (2) whether the claimant has a medical

11 impairment (or combination of impairments) that qualifies as seve re; (3) whether any of the 12 claimant’s impairments meet or medically equal the severity of one of the impairments in 20 13 C.F.R., Pt. 404, Subpt. P, App. 1; (4) whether the claimant can perform past relevant work; and 14 (5) whether the claimant can perform other specified types of work. See Barnes v. Berryhill, 895 15 F.3d 702, 704 n.3 (9th Cir. 2018). The claimant bears the burden of proof for the first four steps 16 of the inquiry, while the Commissioner bears the burden at the final step. Bustamante v. 17 Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). 18 Background 19 Plaintiff filed an application for DIB on February 6, 2017, alleging disability beginning 20 September 30, 2016. Administrative Record (“AR”) 310-13. After her application was denied 21 both initially and upon reconsideration, plaintiff appeared and testified at a hearing before an ALJ 22 on April 3, 2019. AR 82-109, 156-60, 164-68. The ALJ issued an initial decision finding that 23 plaintiff was not disabled on May 8, 2019. AR 132-48. After the Appeals Council vacated that 24 decision and remanded for additional proceedings, plaintiff appeared and testified at a second 25 hearing on January 11, 2021. AR 48-81, 151-53. On March 30, 2021, the ALJ issued a second 26 decision finding that plaintiff was not disabled. AR 25-41. Specifically, the ALJ found:

27 1. The claimant meets the insured status requirements of the Social 28 Security Act through December 31, 2021. 1 2. The claimant has not engaged in substantial gainful activity since 2 September 30, 2016, the alleged onset date.

3 * * *

4 3. The claimant has the following severe impairments: chronic 5 fatigue syndrome and hypothyroidism.

6 * * * 7 4. The claimant does not have an impairment or combination of

8 impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. 9 * * * 10 11 5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to 12 perform light work as defined in 20 CFR 404.1567(b) except that she can occasionally perform postural activities, should avoid 13 climbing of ladders, ropes or scaffolds, and should avoid working at heights or around heavy or hazardous machinery. 14

15 * * *

16 6. The claimant is capable of performing past relevant work as a purchasing agent, financial manager, and employment manager. 17 This work does not require the performance of work-related activities precluded by the claimant’s residual functional capacity. 18

19 * * *

20 7. In addition to past relevant work, there are other jobs that exist in significant numbers in the national economy that the claimant also 21 could perform, considering the claimant’s age, education, work experience, and residual functional capacity, prior to April 29, 22 2018. 23 * * * 24 8. The claimant has not been under a disability, as defined in the 25 Social Security Act, from September 30, 2016, through the date of this decision. 26 27 AR 28-41 (citations to the code of regulations omitted). 28 1 Plaintiff requested review by the Appeals Council, which denied the request. AR 1-7. She

2 now seeks judicial review under 42 U.S.C. §§ 405(g), 1383(c)(3).

3 Analysis

4 Plaintiff advances two primary arguments. First, she argues that the ALJ discounted her

5 subjective symptom testimony without providing clear and convincing reasons for doing so. ECF

6 No. 17 at 9-14. Second, she argues that the ALJ failed to account for her impairments in her

7 residual functional capacity (“RFC”) assessment. Id. at 2-9. Because I agree with plaintiff’s

8 argument that the ALJ improperly discounted her subjective symptom testimony and grant

9 summary judgment on that basis, I do not reach plaintiff’s second argument.

10 Plaintiff testified to the limiting effects of her chronic fatigue syndrome and her

11 hypothyroidism in hearings held in 2019 and 2021. The ALJ prov ided an adequate summary of 12 the relevant testimony from the 2019 hearing: 13 The claimant testified that she started having symptoms of chronic fatigue syndrome six months after she started her last job. She said 14 the symptoms slowly got worse. She testified she always had the Epstein-Barr virus, which is what triggers her chronic fatigue 15 syndrome. . . . She testified she had hypothyroidism and she took medication for it every day. She said the medication was helpful. 16 She testified she was 80-85% bedbound or housebound. 17 AR 34 (citing AR 81-109). At the 2021 hearing, plaintiff testified that her chronic fatigue 18 syndrome had worsened significantly. AR 56-57, 60-62. She testified that her brain fog had 19 become more problematic and that she had both long-term and short-term memory loss. AR 57. 20 She stated that the hardest part of working a full-time job is the “unrelenting fatigue.” AR 63. 21 She added, “there are times when it gets so bad you literally collapse right where you are” 22 without any advance notice. AR 63. 23 At steps two and three, the ALJ found that plaintiff had chronic fatigue syndrome and 24 hypothyroidism, that both conditions were severe, and that neither met the requirements of any of 25 the listed impairments. AR 31-33. She then found that plaintiff retained the RFC to perform 26 “light work as defined in 20 CFR 404.1567(b) except that she can occasionally perform postural 27 activities, should avoid climbing of ladders, ropes or scaffolds, and should avoid working at 28 heights or around heavy or hazardous machinery.” AR 33-34. 1 In the Ninth Circuit, courts follow a “two-step analysis for determining the extent to

2 which a claimant’s symptom testimony must be credited.” Trevizo v. Berryhill, 871 F.3d 664,

3 678 (9th Cir. 2017). “‘First, the ALJ must determine whether the claimant has presented

4 objective medical evidence of an underlying impairment which could reasonably be expected to

5 produce the pain or other symptoms alleged.’” Id. (quoting Garrison v. Colvin, 759 F.3d 995,

6 1014-15 (9th Cir. 2014)). If the claimant meets this requirement and there is no evidence of

7 malingering, “the ALJ can reject the claimant’s testimony about the severity of her symptoms

8 only by offering specific, clear and convincing reasons for doing so. This is not an easy

9 requirement to meet: The clear and convincing standard is the most demanding required in Social

10 Security cases.” Id. The ALJ’s reasons also must be supported by substantial evidence in the

11 record. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 12 The ALJ found objective evidence of plaintiff’s medically determinable impairments that 13 could reasonably be expected to produce the alleged symptoms and made no finding of 14 malingering. AR 34. As such, the ALJ was required to supply clear and convincing reasons to 15 support her finding that plaintiff’s “allegations concerning the impairments and the impact on her 16 ability to work are not sufficiently supported by the record as a whole.” AR 35. The ALJ 17 provided three reasons for rejecting plaintiff’s symptom testimony: first, that “the laboratory and 18 clinical findings in the medical record do not fully support the extent of her symptom 19 allegations”; second, that plaintiff’s “medical treatment throughout the record was entirely routine 20 and conservative, including using oils, creams, vitamins, and medications”; and third, that 21 plaintiff’s “activities of daily living are inconsistent with allegations of total disability.” AR 35- 22 37. 23 The ALJ’s first reason—that “laboratory and clinical findings” did not corroborate her 24 symptoms—is insufficient as a matter of both law and fact. AR 35. ALJ’s “may not reject a 25 claimant’s subjective complaints based solely on a lack of medical evidence to fully corroborate 26 the alleged severity of [symptoms].” Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005); 20 27 C.F.R. § 404.1529(c)(2) (“[W]e will not reject your statements about the intensity and 28 persistence of your pain or other symptoms or about the effect our symptoms have on your 1 ability to work solely because the available objective medical evidence does not substantiate

2 your statements.”). The Ninth Circuit has emphasized that this rule is particularly relevant to the

3 resolution of claims involving CFS, which is “defined as ‘self-reported persistent or relapsing

4 fatigue lasting six or more consecutive months.’” Reddick v. Chater, 157 F.3d 715, 726 (9th Cir.

5 1998) (quoting Centers for Disease Control, The Chronic Fatigue Syndrome: A Comprehensive

6 Approach to its Definition and Study, 121 Ann. of Int. Med. 954 (1994) (emphasis added by

7 Reddick court)).

8 The ALJ listed a variety of laboratory and clinical findings but did not explain which

9 contradicted plaintiff’s allegations. See AR 35. Such a general litany of negative lab tests does

10 not undermine plaintiff’s CFS allegations, since “[t]here is no blood test or other objective

11 laboratory test for chronic fatigue syndrome.” Salomaa v. Honda Long Term Disability Plan, 12 642 F.3d 666, 677 (9th Cir. 2011). Indeed, the findings may support plaintiff’s allegations of 13 CFS, since she was diagnosed with CFS by an M.D. in 2016, and she tested positive for the 14 Epstein-Barr virus antibody, see AR 35, which is “frequently associated with CFS,” Reddick, 15 157 F.3d at 719. She also repeatedly tested positive for “high TSH,” an indicator of 16 hypothyroidism. AR 35. Plaintiff’s medical records include numerous reports of CFS 17 symptoms, including severe fatigue, malaise, brain fog, depressed mood, anxiety, insomnia, poor 18 memory, sinusitis, and chronically sore throat. See, e.g., AR 462-63, 466, 484, 494-98, 505, 508, 19 515, 551, & 565. The ALJ discounted these reports because they relied on plaintiff’s “subjective 20 complaints,” electing instead to credit objective clinical findings such as that plaintiff presented 21 “normal levels of alertness and orientation.” AR 35, 37, & 38. The ALJ’s preference for cursory 22 objective observations over plaintiff’s self-reports to her medical providers contravenes this 23 circuit’s case law, which holds that such reasoning “runs counter to the [Centers for Disease 24 Control’s] published framework for evaluating and diagnosing CFS.” Reddick, 157 F.3d at 726; 25 see also Rau v. Comm’r of Soc. Sec., No. 14-CV-03534-DMR, 2016 WL 705983, at *7 (N.D. 26 Cal. Feb. 23, 2016) (explaining that CFS is diagnosed based on self-reports and by ruling out 27 other possible causes). 28 The ALJ’s second reason—that “medical treatment throughout the record was entirely 1 routine and conservative,” AR 35—is insufficient to discredit plaintiff’s testimony because of the

2 nature of CFS. The record reflects that plaintiff consistently sought treatment from both her

3 primary care doctor and from a naturopathic doctor for the recognized symptoms of CFS. See

4 AR 456-76, 481-91, 492-98, 500-33, 550-81. The ALJ does not identify a less-conservative

5 treatment option rejected by plaintiff, and there is no indication that further treatment for CFS

6 would be fruitful. Cf. Reddick, 157 F.3d at 727 (“The ALJ’s focus on pain medication and

7 treatment is misplaced, as the CDC has made it clear that no definitive treatment for CFS

8 exists.”); Lapeirre-Gutt v. Astrue, 382 F. App’x. 662, 664 (9th Cir. 2010) (“A claimant cannot be

9 discredited for failing to pursue non-conservative treatment options where none exist.”)

10 Lastly, plaintiff’s activities of daily living do not provide a sufficient basis for

11 discounting her symptom testimony. The ALJ noted that plaintiff “reported to sources in the 12 record that she was able to shop in stores (with the use of a scooter), help her mom move out 13 from her home, go to the movies, clean the house, and feed her cat.” AR 36. The ALJ also 14 noted that plaintiff testified at her 2019 hearing that she could “do laundry and prepare meals.” 15 AR 36. 16 This description misrepresents plaintiff’s statements in service of a broadly inaccurate 17 characterization of her ability to function. The ALJ’s statement that plaintiff can “clean the 18 house” appears drawn from a treatment note indicating that, on certain days when she manages 19 to get a lot of sleep and wakes up at two in the afternoon, she has extra energy for activities like 20 cleaning the house. AR 558. Similarly, the ALJ noted that plaintiff can “go to the movies,” 21 citing a treatment note stating that even seemingly sedentary activities like “sit[ting] in a chair 22 for more than an hour” or going “to a movie for 2.5 hours” leave plaintiff “in pain and 23 exhausted.” AR 553. More generally, plaintiff testified at her first hearing that on a “bad day” 24 she is only able to get up briefly take her pills and eat a meal before she has to get “right back in 25 the bed.” AR 98. She testified that she could only prepare “[v]ery simple” meals using a 26 microwave and that when she is able to cook, she tries to prepare her meals “for four days at one 27 time.” AR 98. She stated that she does her own laundry, but that her washer and dryer are in her 28 apartment and that even doing “one load . . . takes a lot out of [her].” AR 100. At her 2021 1 hearing, she testified that she now orders groceries online through a delivery service and that her

2 niece often comes over to help with household chores. AR 60-61.

3 Plaintiff’s activities of daily living do not contradict her symptom testimony or

4 allegations of total disability. The record broadly supports plaintiff’s characterization of her

5 activities as “performed on a very limited basis, often with assistance, and only as allowed by

6 [her] condition.” ECF No. 17 at 12. As the Ninth Circuit held in Reddick, activities of daily

7 living that are “sporadic and punctuated by rest” do not contradict allegations of severe CFS

8 symptoms, since “CFS is ‘characterized by periods of exacerbation and remission.’” 157 F.3d at

9 722 (quoting Cohen v. Secretary of Dept. of Health & Human Servs., 964 F.2d 524, 530 (6th Cir.

10 1992)). “[D]isability claimants should not be penalized for attempting to lead normal lives in the

11 face of their limitations.” Id.; see also Fair v. Bowen, 885 F.2d 5 97, 603 (9th Cir. 1989) 12 (“[M]any home activities are not easily transferable to . . . the more grueling environment of the 13 workplace, where it might be impossible to periodically rest or take medication.”); Cooper v. 14 Bowen, 815 F.2d 557, 561 (9th Cir. 1987) (explaining that disability claimants need not 15 “vegetate in a dark room” in order to be eligible for benefits) (internal quotes and citations 16 omitted). 17 The ALJ’s failure to set out specific, clear, and convincing reasons to discount plaintiff’s 18 subjective symptom testimony deprives the court of the ability to determine whether her 19 conclusions are supported by substantial evidence. This error warrants remand to allow for 20 proper consideration of the evidence of record. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 21 2015) (“A district court may reverse the decision of the Commissioner of Social Security, with or 22 without remanding the case for a rehearing, but the proper course, except in rare circumstances, is 23 to remand to the agency for additional investigation or explanation.”) (internal quotes and 24 citations omitted). 25 Accordingly, it is hereby ORDERED that: 26 1. Plaintiff’s motion for summary judgment, ECF No. 17, is granted. 27 2. The Commissioner’s cross-motion for summary judgment, ECF No. 19, is denied. 28 3. The matter is remanded for further proceedings consistent with this order. 1 4. The Clerk of Court is directed to enter judgment in plaintiff’s favor. 2 3 IT IS SO ORDERED. 4 ( _ Dated: _ March 31, 2023 q-—— 5 JEREMY D. PETERSON 6 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28