(SS) Tankersley v. Commissioner of Social Security

Opinion

LESLIE LYNNE TANKERSLEY, Case No. 1:22-cv-00029-CDB (SS)

Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT1 v. (Docs. 13, 14, 17) Defendant. Plaintiff Leslie Lynne Tankersley (“Plaintiff”) seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for disability benefits under the Social Security Act. (Doc. 1). The matter is currently before the Court on the parties’ briefs, which were submitted without oral argument. (Docs. 13, 14, 17). Upon review of the Administrative Record (“AR”) and the parties’ briefs, the Court finds and rules as follows. A. Administrative Proceedings and ALJ’s Decision Plaintiff filed a Title II application for disability insurance benefits on January 14, 2020.

1 Based on the parties’ expression of consent, on July 27, 2022, this action was reassigned to a (AR 187-90). Plaintiff’s application was denied initially and upon reconsideration, and Plaintiff requested a hearing before an administrative law judge (“ALJ”). (AR 84-114, 132-33). On April 28, 2021, ALJ Suzette Knight held a hearing, during which Plaintiff, represented by counsel, and an independent vocational expert testified. (AR 53-83). The ALJ issued her decision on May 12, 2021, finding Plaintiff not disabled. (AR 15-26). On November 4, 2021, the Appeals Council declined Plaintiff’s request for review. (AR 1-3). In her decision, the ALJ engaged in the five-step sequential evaluation process set forth by the Social Security Administration. 20 C.F.R. §§ 404.1520(a), 416.920(a). At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since December 30, 2018, the alleged onset date. (AR 17). At step two, the ALJ determined that Plaintiff had the following severe impairments: “fibromyalgia, polymyositis and dermatomyositis, and obesity.” (AR 17). At step three, the ALJ found that Plaintiff did not have an impairment, or combination of impairments, that met or medically exceeds the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (AR 18-19). Of relevance to the arguments before the Court, the ALJ stated she considered Plaintiff’s fibromyalgia under Social Security Ruling (“SSR”) 12-2p, which “describes the evidence needed to establish a medically determinable impairment of fibromyalgia.” (AR 18). The ALJ noted that under SSR 12-2p a claimant can establish fibromyalgia “by providing evidence from an acceptable medical source that the claimant has a history of widespread pain that has persisted for at least 3 months and at least 11 positive tender points on physical examination” and “other disorders that could cause the symptoms or signs were excluded.” (AR 18). The ALJ indicated that “[t]hese requirements have been taken into account in reaching the conclusions herein.” (AR 18). The ALJ determined Plaintiff had the residual functional capacity (“RFC”) to perform a range of light work “except the claimant can stand and/or walk for a total of 4-hours in an 8-hour workday;” can occasionally climb ramps and stairs but never climb ladders, ropes, or scaffolds; can occasionally balance, stoop, kneel, and crawl, but never crouch; can tolerate occasional exposure to humidity, wetness, extreme cold, extreme heat, vibration, and atmospheric moving mechanical parts; and can tolerate no more than moderate noise level. (AR 19). Further, “[i]n addition to normal breaks, the claimant would be off task 8% of the time in an 8-hour workday (for bathroom breaks).” (AR 19). In formulating the RFC, the ALJ considered Plaintiff’s testimony concerning why she could not maintain fulltime employment, her symptoms, and her daily activities. (AR 20). She also considered the medical record and opinions from Plaintiff’s providers, the state agency consultants, and a consultative examiner. (AR 21). Overall, the ALJ concluded “the degree of limitation alleged [was] not supported in the record, noting that “the medical evidence of record reveals responsiveness to conservative treatment and medications, with improvement; control of her pain symptoms; … the ability to stand, walk, and move about normally without the use of a handheld assistive device;” “multiple virtually unremarkable objective/physical examinations;” and in December 2020, Plaintiff reported that her fibromyalgia was under control. (AR 23-24). The ALJ concluded that “the objective record, including the activities the claimant reports she engages in to healthcare providers, would support that the claimant could perform within the limitations of the residual functional capacity issued.” (AR 24). Additionally, the ALJ noted that Plaintiff’s daily activities—including “having a dog and two cats, performing personal care, dressing herself, preparing simple meals, taking medications, vacuuming, doing laundry, watering the lawn, having her granddaughter stay with her often, driving four times a week, going to the market/grocery shopping, and visiting a friend’s house”—were “inconsistent with disability.” (AR 24). At step four, the ALJ found that Plaintiff was capable of performing her past relevant work as a front officer worker as actually performed. (AR 24-25). Alternatively, the ALJ concluded at step five that jobs existed in significant numbers that Plaintiff could perform, including as a sorter and data-examination clerk. (AR 25). Thus, the ALJ concluded that Plaintiff had not been under a disability from December 30, 2018, through the date of the decision. (AR 26). B. Medical Record and Hearing Testimony be referenced below as necessary to this Court’s decision. A district court’s review of a final decision of the Commissioner of Social Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” (Id. at 1159) (quotation and citation omitted). Stated differently, substantial evidence equates to “more than a mere scintilla[,] but less than a preponderance.” (Id.) (quotation and citation omitted). In determining whether the standard has been satisfied, a reviewing court must consider the entire record as a whole rather than searching for supporting evidence in isolation. (Id.) The court will review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely. Social Security Act § 205, 42 U.S.C. § 405(g). In reviewing a denial of benefits, a district court may not substitute its judgment for that of the Commissioner. “The court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). Further, a district court will not reverse an ALJ’s decision on account of an error that is harmless. (Id.). An error is harmless where it is “inconsequential to the [ALJ’s] ultimate nondisability determination.” (Id). (quotation and citation omitted). The party appealing the ALJ’s decision generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). A claimant must satisfy two conditions to be considered “disabled” and eligible for benefits within the meaning of the Social Security Act. First, the claimant must be “unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § unable to do his previous work[,] but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 1382c(a)(3)(B). The Commissioner has established a five-step sequential analysis to determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(b). If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step two. At this step, the Commissioner considers the severity of the claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from “any impairment or combination of impairments which significantly limits [his or her] physical or mental ability to do basic work activities,” the analysis proceeds to step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, however, the Commissioner must find that the claimant is not disabled. (Id.). At step three, the Commissioner compares the claimant’s impairment to impairments recognized by the Commissioner to be so severe as to preclude a person from engaging in substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the enumerated impairments, the Commissioner must find the claimant disabled and award benefits. 20 C.F.R. § 416.920(d). If the severity of the claimant’s impairment does not meet or exceed the severity of the enumerated impairments, the Commissioner must pause to assess the claimant’s “residual functional capacity.” Residual functional capacity (RFC), defined generally as the claimant’s ability to perform physical and mental work activities on a sustained basis despite his or her limitations (20 C.F.R. § 416.945(a)(1)), is relevant to both the fourth and fifth steps of the analysis. At step four, the Commissioner considers whether, in view of the claimant’s RFC, the work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is capable of performing past relevant work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of performing such work, the analysis proceeds to step five. At step five, the Commissioner considers whether, in view of the claimant’s RFC, the claimant is capable of performing other work in the national economy. 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner must also consider vocational factors such as the claimant’s age, education, and past work experience. (Id.). If the claimant is capable of adjusting to other work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to other work, the analysis concludes with a finding that the claimant is disabled and is therefore entitled to benefits. (Id.). The claimant bears the burden of proof at steps one through four above. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such work “exists in significant numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). In seeking judicial review of the Commissioner’s final decision denying her application, Plaintiff raises a single issue, asserting “[t]he ALJ performed an erroneous assessment of Plaintiff’s fibromyalgia.” (Doc. 13 at 4). Plaintiff asserts that “[i]n light of the unique symptoms and diagnostic process” linked to fibromyalgia, Ninth Circuit caselaw and SSR 12-2p provide “the assessment applicable to fibromyalgia, including both evidence in support of fibromyalgia, along with the forms of objective evidence which are irrelevant to, and which do not serve as evidence against the severity or limiting effects of this condition.” (Id. at 11). Plaintiff contends that “[d]espite the clear and repeated Ninth Circuit law specifying the required assessment of fibromyalgia, and the Ninth Circuit’s reversal based on a failure to conform to this assessment, the ALJ here transparently relied on precisely this erroneous reasoning to dismiss Plaintiff’s 2017), to support her argument that the ALJ erred in considering her fibromyalgia. (See generally id. at 11-19). A. Consideration of Fibromyalgia under Revels In Revels, the Ninth Circuit outlined “what fibromyalgia is, how it is properly diagnosed, and what its symptoms are.” 874 F.3d at 656. The Ninth Circuit explained:

Fibromyalgia is a rheumatic disease that causes inflammation of the fibrous connective tissue components of muscles, tendons, ligaments, and other tissue. Typical symptoms include chronic pain throughout the body, multiple tender points, fatigue, stiffness, and a pattern of sleep disturbance that can exacerbate the cycle of pain and fatigue. What is unusual about the disease is that those suffering from it have muscle strength, sensory functions, and reflexes that are normal. Their joints appear normal, and further musculoskeletal examination indicates no objective joint swelling. Indeed, there is an absence of symptoms that a lay person may ordinarily associate with joint and muscle pain. The condition is diagnosed entirely on the basis of the patients’ reports of pain and other symptoms. There are no laboratory tests to confirm the diagnosis. Id. (quotations, citations, and alterations omitted). Under SSR 12-2p, fibromyalgia is “a valid basis for a finding of disability” and requires consideration of a “longitudinal record” in assessing the RFC because fibromyalgia waxes and wanes and a claimant may have good and bad days. Id. at 657. Thus, “[i]n evaluating whether a claimant’s residual functional capacity renders them disabled because of fibromyalgia, the medical evidence must be construed in light of fibromyalgia’s unique symptoms and diagnostic methods” and “[t]he failure to do so is error.” Id. at 662. Applying this approach in Revels, the Ninth Circuit concluded the ALJ erred in considering the claimant’s testimony concerning her symptoms because he did not consider such “in light of her fibromyalgia diagnosis.” Id. at 666. The ALJ “highlighted several examinations that had mostly normal results, such as an X-ray and MRIs of Revels’ neck and back, as well as the nerve conduction and velocity study of her hands” and “cited medical records showing that, at several doctor’s appointments, Revels exhibited normal muscle strength, tone, and stability, as well as a normal range of motion.” Id. However, the Ninth Circuit explained that “the The Ninth Circuit concluded the ALJ also erred in concluding Revels received “conservative” treatment because “Revels received facet and epidural injections in her neck and back, as well as steroid injections in her hands” and “was prescribed a variety of medications for her pain, including Valium, Vlector, Soma, Vicodin, Percocet, Neurontin, Robaxin, Trazodone, and Lyrica” but the ALJ “provided no explanation why he deemed this treatment ‘conservative.’” Id. at 667. The ALJ also found a “wide disparity” between Revels’ symptom testimony and her reports of her daily activities, relying on “Revels’ function report in which she listed a number of activities she might do in a day,” including “using the bathroom, brushing her teeth, washing her face, taking her children to school, washing dishes, doing laundry, sweeping, mopping, vacuuming, going to a doctor’s appointment for her or one of her children, visiting her mother and father, cooking, shopping, getting gas, and feeding her dogs.” Id. at 667-68. However, the Ninth Circuit concluded the ALJ erred in his assessment of Revels’ daily activities because he “failed to acknowledge that, over and over in the same report, Revels explained that she could complete only some of the tasks in a single day and regularly needed to take breaks—which was consistent with her symptom testimony” and Revels “repeatedly and consistently described the severe limitations on her ability to complete daily activities.” Id. at 668. B. Arguments and Analysis Plaintiff argues the ALJ erred in considering her fibromyalgia in light of the guidance provided in Revels. Plaintiff first challenges the ALJ’s reliance on “the very forms of normal objective testing specifically designated as irrelevant to the assessment of fibromyalgia, such as Plaintiff’s normal strength, normal range of motion, normal sensation, and normal neurological findings.” (Id.). Next, Plaintiff argues the ALJ “relied on further erroneous reasoning to discount [her] fibromyalgia” when the ALJ pointed to improvement in Plaintiff’s symptoms “from a polymyalgia standpoint” because “continued fibromyalgia symptomology despite improvement regarding other, non-fibromyalgia conditions is not grounds for discounting Plaintiff’s fibromyalgia.” (Id. at 14). Plaintiff challenges the ALJ’s citation to a single appointment where Plaintiff said her fibromyalgia symptoms were controlled because “assessment of fibromyalgia miscategorized her fibromyalgia treatment as conservative because “Ninth circuit courts have specified that treatments including steroids, injections, and heavy pain medication such as narcotics are not conservative treatment, particularly in the context of fibromyalgia.” (Id. at 15). Additionally, Plaintiff asserts the “ALJ relied erroneously on [her] activities of daily living to discount the severity of her condition” because her ability to complete some activities of daily living (“ADLs”) is not inconsistent with a disability finding. (Id. at 16-18). Finally, Plaintiff briefly challenges the ALJ’s failure to credit the opinions of her providers before arguing that remand for an award of benefits is warranted under the credit-at-true rule. (Id. at 18-21). Defendant categorizes Plaintiff’s arguments as only a challenge to “whether the ALJ properly assessed her subjective symptom complaints.” (Doc. 14 at 2). Defendant argues the “ALJ properly evaluated Plaintiff’s testimony and provided ample reasons supported by substantial evidence for discounting Plaintiff’s testimony.” (Id. at 4). Defendant argues “the ALJ found Plaintiff’s statements inconsistent with numerous clinical findings in the record” based on “unremarkable” physical examinations. (Id. at 5-7). Defendant asserts that Plaintiff’s reliance on Revels is unavailing because “[h]ere, unlike Revels, the ALJ did not reject Plaintiff’s provider’s tender point findings or relay [sic] on normal diagnostic testing to discount Plaintiff’s fibromyalgia claims” but rather, “consistent with the regulations, the ALJ considered the longitudinal record, acknowledged that Plaintiff’s provider made tender point findings, found fibromyalgia was a severe impairment, and limited Plaintiff to a reduced range of light work.” (Id. at 7). Defendant highlights the ALJ’s conclusion that “Plaintiff appeared to manage her fibromyalgia symptoms with conservative treatment consisting largely of medication management” and consideration of Plaintiff’s ADLs in rejecting her symptom testimony. (Id. at 8-9). To the extent Plaintiff challenges the treatment of the medical opinions, Defendant argues “the ALJ considered and discussed both the supportability and consistency when assessing the cursory February 2020 checkbox form from Ehab A. Swehli, M.D. and the February 2021 checkbox form from Sara Taroumian, M.D.” (Id. at 11). While Defendant asks that the Court affirm the ALJ’s decision, Defendant argues that if an error did occur, remand for further Plaintiff replies that Defendant did “little to address [her] contention that the ALJ relied upon a mischaracterization of the record in assessing Plaintiff’s fibromyalgia.” (Doc. 17 at 3-4). Specifically, Plaintiff argues that Defendant and the ALJ both improperly characterized her treatment as conservative, contrary to Ninth Circuit precedent specifying that “treatments including steroids, injections, and heavy pain medication such as narcotics are not conservative treatment, particularly in the context of fibromyalgia.” (Id. at 4). The primary issue underlying the parties’ arguments is whether the ALJ erred in rejecting Plaintiff’s testimony that her fibromyalgia prevented her from engaging in gainful employment.2 Before discrediting a claimant’s subjective symptom testimony, the ALJ must first determine if objective medical evidence of an underlying impairment “could reasonably be expected to produce the pain or other symptoms alleged.” Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). The second step is for the ALJ to describe specific, clear, and convincing reasons to reject the claimant’s testimony on the severity of her symptoms. Id. An ALJ’s reasonings as to subjective testimony “must be supported by substantial evidence in the record as a whole.” Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995); see Carmicle v. Comm’r, SSA, 544 F.3d 1144, 1161 (9th Cir. 2008) (“Accordingly, our next task is to determine whether the ALJ’s adverse credibility finding of Carmickle’s testimony is supported by substantial evidence under the clear-and-convincing standard.”). The ALJ here concluded Plaintiff’s impairments could reasonably be expected to produce the symptoms alleged. (AR 23). However, the reasons provided by the ALJ for rejecting Plaintiff’s testimony are not supported by substantial evidence in the record. In rejecting Plaintiff’s testimony, the ALJ first concluded “the medical evidence of record reveals responsiveness to conservative treatment and medications, with improvement; control of her pain symptoms; and the ability to stand, walk, and move about normally without the use of a 2 The Court does not necessarily agree with Defendant’s characterization of Plaintiff’s arguments as challenging only the ALJ’s treatment of her symptom testimony. However, because the Court finds the ALJ erred in considering the testimony such that remand is required, the Court need not address any remaining issues. See Marcia v. Sullivan, 900 F.2d 172, 177 n.6 (9th Cir. 1990) (“Because we reverse, we do not reach the other arguments raised.”); see also Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (same); Augustine ex rel. Ramirez v. Astrue, 536 F. Supp. 2d 1147, handheld assistive device” and “the medical evidence of record provides multiple virtually unremarkable objective/physical examinations.” (AR 23). However, as in Revels, “the examination results cited by the ALJ are perfectly consistent with debilitating fibromyalgia.” Revels, 874 F.3d at 666. Each of the medical records discussed in the decision highlight Plaintiff’s continued complaints of pain despite treatment with medication. (See AR 20-21). Further, the ALJ does nothing to explain how a single reference to Plaintiff’s fibromyalgia being “under control” discredits her testimony given the recognized nature of fibromyalgia to wax and wane over time. Revels, 874 F.3d at 657. Additionally, the ALJ concluded that while Plaintiff was “limited to a degree” in her ADLs, the ADLs she did perform were “inconsistent with her complaints of prolonged and consistent disabling functional limitations.” (AR 24). The ALJ cited Plaintiff’s April 9, 2020 report that she “started watching her diet and walking regularly” and a July 23, 2020 note that Plaintiff’s ADLs included “doing some housework, sweeping, mopping, vacuuming in spurts, washing dishes, putting laundry into the washing machine, and shopping with a scooter.” (AR 24 (citing AR 349, 407)). Similar to Revels, in citing Plaintiff’s ADLs as justifying rejection of her symptom testimony, the ALJ wholly failed to acknowledge the limitations Plaintiff included when describing her ADLs. While Plaintiff did indicate in April 2020 that she started walking regularly due to concerns around her blood glucose, the July 23, 2020 note contained qualifying statements and limitations the ALJ did not acknowledge, including that Plaintiff could only put laundry into the washing machine, grocery shop with an electric scooter and a ride provided, do light cooking in a seated position, and drive “a little bit locally but only if necessary.” (AR 349, 407). The ALJ also indicated Plaintiff “testified to having a dog and two cats, performing personal care, dressing herself, preparing simple meals, taking medications, vacuuming, doing laundry, watering the lawn, having her granddaughter stay with her often, driving four times a week, going to the market/grocery shopping, and visiting a friend’s house.” (AR 24). However, review of the hearing transcript reveals the ALJ once again failed to acknowledge qualifying stayed with her and her husband frequently, she did not describe any activities she engaged in with her granddaughter or the level of care she provided her that would support a conclusion that her granddaughter’s visits were inconsistent with a disability finding. (See AR 61). Plaintiff drove approximately four times a week but only in town at low speeds. (AR 61, 70). Concerning cooking, she and her husband would make “something small for breakfast,” such as scrambled eggs or cereal, and she would start dinner but then sit down. (AR 70-71). As far as laundry, she could put clothes in the washer but “cannot get them out of the washer.” (AR 70-71). She vacuumed once a week, not daily. (AR 71). Plaintiff explained she could water the lawn because she is able to “stand for a minute and then sit for a minute.” (AR 71). While Plaintiff had pets, she did not provide care for them. (AR 73). The ALJ did nothing to explain how these more limited activities were inconsistent with a finding of disability. Thus, the ALJ erred in failing to provide clear and convincing reasons, supported by substantial evidence, for rejecting Plaintiff’s symptom testimony such that her decision must be reversed. The decision whether to remand a matter pursuant to sentence four of 42 U.S.C. § 405(g) or to order immediate payment of benefits is within the discretion of the district court. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). “When a reviewing court reverses an administrative agency determination, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” Miskey v. Kijakazi, 33 F.4th 565, 575 (9th Cir. 2022) (internal quotation marks omitted). Remand for an award of benefits is only appropriate “where no useful purpose would be served by further administrative proceedings and the record has been thoroughly developed.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1100 (9th Cir. 2014). Even in the “rare circumstances” where remand may be appropriate, a court retains discretion to remand for additional evidence rather than award benefits. Id. at 1101-02. Here, the Court concludes that remand for further proceedings is warranted because additional administrative proceedings may remedy the deficiencies in the ALJ’s decision. For the reasons stated above, the Court ORDERS as follows: 1. Plaintiff's Motion for Summary Judgment (Doc. 13) is GRANTED; 2. The decision of the Commissioner is reversed, and this matter is remanded back to the Commissioner of Social Security for further proceedings consistent with this order; and 3. The Clerk of Court is DIRECTED to enter judgment in favor of Plaintiff Leslie Lynne Tankersley and against Defendant Commissioner of the Social Security Administration. IT IS SO ORDERED. ” | Dated: _ April 18, 2025 | hr UNITED STATES MAGISTRATE JUDGE 13