2 FILED IN THE U.S. DISTRICT COURT 3 EASTERN DISTRICT OF WASHINGTON
Sep 05, 2024 4 SEAN F. MCAVOY, CLERK
5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 JAMIE MARIE V., 8 No: 1:23-cv-03047-LRS Plaintiff, 9 v. ORDER REMANDING THE 10 COMMISSIONER’S DECISION MARTIN O’MALLEY, 11 COMMISSIONER OF SOCIAL SECURITY,1 12
13 Defendant.
14 BEFORE THE COURT are the parties’ briefs. ECF Nos. 9, 15. This matter 15 was submitted for consideration without oral argument. Plaintiff is represented by 16 attorney D. James Tree. Defendant is represented by Special Assistant United States 17 Attorney Frederick Fripps. The Court, having reviewed the administrative record 18
19 1 Martin O’Malley became the Commissioner of Social Security on December 20, 20 2023. Pursuant to Rule 25(d) of the Rules of Civil Procedure, Martin O’Malley is 21 substituted for Kilolo Kijakazi as the Defendant in this suit. 1 and the parties’ briefing, is fully informed. For the reasons discussed below, 2 Plaintiff’s brief requesting an award of benefits, ECF No. 9, is denied, and 3 Defendant’s brief requesting remand, ECF No. 15, is granted. 4 JURISDICTION
5 Plaintiff Jamie Marie V. 2 (Plaintiff), filed for disability insurance benefits 6 (DIB) on February 4, 2020, alleging an onset date of September 25, 2018.3 Tr. 238- 7 41. Benefits were denied initially, Tr. 165-67, and upon reconsideration, Tr. 173-75.
8 Plaintiff appeared at a hearing before an administrative law judge (ALJ) on March 9 29, 2022. Tr. 75-98. On April 8, 2022, the ALJ issued an unfavorable decision, Tr. 10 14-36, and the Appeals Council denied review, Tr. 1-6. The matter is now before 11 this Court pursuant to 42 U.S.C. § 405(g).
12 13 14
15 2 The court identifies a plaintiff in a social security case only by the first name and 16 last initial in order to protect privacy. See Local Civil Rule 5.2(c). 17 3 Plaintiff previously filed Title II and Title XVI applications and a different ALJ 18 made an unfavorable decision on September 27, 2018. Tr. 99-121. The ALJ in
19 this case declined to reopen the prior decision. Tr. 17. As such, the period at issue 20 in this case begins on September 28, 2018, the day after the date of the prior 21 decision. Tr. 17. 1 BACKGROUND 2 The facts of the case are set forth in the administrative hearings and 3 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner, and 4 are therefore only summarized here.
5 Plaintiff was born in 1985 and was 36 years old on her date last insured. Tr. 6 30. She has work experience at a pet boarding facility and as a teacher’s aide. Tr. 7 90, 93. Plaintiff testified that she cannot work due to irritable bowel syndrome (IBS)
8 and colitis, severe pain in her back, and migraines. Tr. 81. She testified that she 9 needs to use the restroom from six to eight times in an eight-hour window. Tr. 82. 10 She has abdominal cramping. Tr. 82. Her back pain is in her sacroiliac (SI) joint. 11 Tr. 83. She has a migraine every couple of days. Tr. 86. A typical migraine lasts
12 anywhere from four hours to all day. Tr. 85. Plaintiff also testified she has 13 depression and anxiety. Tr. 88. She has been treated for borderline personality 14 disorder. Tr. 89.
15 STANDARD OF REVIEW 16 A district court’s review of a final decision of the Commissioner of Social 17 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 18 limited; the Commissioner’s decision will be disturbed “only if it is not supported by
19 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 20 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a reasonable 21 mind might accept as adequate to support a conclusion.” Id. at 1159 (quotation and 1 citation omitted). Stated differently, substantial evidence equates to “more than a 2 mere scintilla[,] but less than a preponderance.” Id. (quotation and citation omitted). 3 In determining whether the standard has been satisfied, a reviewing court must 4 consider the entire record as a whole rather than searching for supporting evidence in
5 isolation. Id. 6 In reviewing a denial of benefits, a district court may not substitute its 7 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 1156
8 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 9 rational interpretation, [the court] must uphold the ALJ’s findings if they are 10 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 11 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an ALJ’s
12 decision on account of an error that is harmless.” Id. An error is harmless “where it 13 is inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 1115 14 (quotation and citation omitted). The party appealing the ALJ’s decision generally
15 bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 16 396, 409-10 (2009). 17 FIVE-STEP EVALUATION PROCESS 18 A claimant must satisfy two conditions to be considered “disabled” within the
19 meaning of the Social Security Act. First, the claimant must be “unable to engage in 20 any substantial gainful activity by reason of any medically determinable physical or 21 mental impairment which can be expected to result in death or which has lasted or 1 can be expected to last for a continuous period of not less than twelve months.” 42 2 U.S.C. §§ 423(d)(1)(A). Second, the claimant’s impairment must be “of such 3 severity that he is not only unable to do his previous work[,] but cannot, considering 4 his age, education, and work experience, engage in any other kind of substantial
5 gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). 6 The Commissioner has established a five-step sequential analysis to determine 7 whether a claimant satisfies the above criteria. See 20 C.F.R. § 404.1520(a)(4)(i)-
8 (v). At step one, the Commissioner considers the claimant’s work activity. 20 9 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in “substantial gainful 10 activity,” the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 11 404.1520(b).
12 If the claimant is not engaged in substantial gainful activity, the analysis 13 proceeds to step two. At this step, the Commissioner considers the severity of the 14 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers from
15 “any impairment or combination of impairments which significantly limits [his or 16 her] physical or mental ability to do basic work activities,” the analysis proceeds to 17 step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment does not satisfy 18 this severity threshold, however, the Commissioner must find that the claimant is not
19 disabled. 20 C.F.R. § 404.1520(c). 20 At step three, the Commissioner compares the claimant’s impairment to 21 severe impairments recognized by the Commissioner to be so severe as to preclude a 1 person from engaging in substantial gainful activity. 20 C.F.R. § 2 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the 3 enumerated impairments, the Commissioner must find the claimant disabled and 4 award benefits. 20 C.F.R. § 404.1520(d).
5 If the severity of the claimant’s impairment does not meet or exceed the 6 severity of the enumerated impairments, the Commissioner must assess the 7 claimant’s “residual functional capacity.” Residual functional capacity (RFC),
8 defined generally as the claimant’s ability to perform physical and mental work 9 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 10 404.1545(a)(1), is relevant to both the fourth and fifth steps of the analysis. 11 At step four, the Commissioner considers whether, in view of the claimant’s
12 RFC, the claimant is capable of performing work that he or she has performed in the 13 past (past relevant work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is capable 14 of performing past relevant work, the Commissioner must find that the claimant is
15 not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of performing 16 such work, the analysis proceeds to step five. 17 At step five, the Commissioner should conclude whether, in view of the 18 claimant’s RFC, the claimant is capable of performing other work in the national
19 economy. 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the 20 Commissioner must also consider vocational factors such as the claimant’s age, 21 education, and past work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the claimant 1 is capable of adjusting to other work, the Commissioner must find that the claimant 2 is not disabled. 20 C.F.R. § 404.1520(g)(1). If the claimant is not capable of 3 adjusting to other work, analysis concludes with a finding that the claimant is 4 disabled and is therefore entitled to benefits. 20 C.F.R. § 404.1520(g)(1).
5 The claimant bears the burden of proof at steps one through four above. 6 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 7 step five, the burden shifts to the Commissioner to establish that (1) the claimant is
8 capable of performing other work; and (2) such work “exists in significant numbers 9 in the national economy.” 20 C.F.R. § 404.1560(c)(2); Beltran v. Astrue, 700 F.3d 10 386, 389 (9th Cir. 2012). 11 ALJ’S FINDINGS
12 At step one, the ALJ found Plaintiff did not engage in substantial gainful 13 activity from the day after the date of the prior decision, September 28, 2018, 14 through her date last insured of December 31, 2021. Tr. 20. At step two, the ALJ
15 found that through the date last insured, Plaintiff had the following severe 16 impairments: migraine headaches; colitis vs. irritable bowel syndrome; degenerative 17 disc disease; obesity; affective disorder; anxiety disorder; posttraumatic stress 18 disorder (PTSD); and personality disorder. Tr. 20. At step three, the ALJ found that
19 through the date last insured, Plaintiff did not have an impairment or combination of 20 impairments that met or medically equaled the severity of one of the listed 21 impairments. Tr. 20-21. 1 The ALJ then found that through the date last insured, Plaintiff had the 2 residual functional capacity to perform light work with the following additional 3 limitations: “she cannot climb ladders, ropes, or scaffolds and she cannot work 4 around hazards (i.e., unprotected heights and dangerous machinery). The claimant
5 can perform simple, routine tasks, with occasional, superficial interaction with 6 others.” Tr. 22. 7 At step four, the ALJ found that through the date last insured, Plaintiff was
8 unable to perform any past relevant work. Tr. 30. After considering Plaintiff’s age, 9 education, work experience, residual functional capacity, and the testimony of a 10 vocational expert, the ALJ found there were other jobs that existed in significant 11 numbers in the national economy that Plaintiff could have performed, such as
12 marker, marker II, and router. Tr. 30-31. Thus, the ALJ concluded that Plaintiff has 13 not been under a disability, as defined in the Social Security Act, at any time from 14 September 28, 2018, the day after the date of the prior decision, through December
15 31, 2021, the date last insured. Tr. 31. 16 ISSUES 17 Plaintiff seeks judicial review of the Commissioner’s final decision denying 18 disability income benefits under Title II of the Social Security Act. ECF No. 9.
19 Plaintiff raises the following issues for review: 20 1. Whether the RFC finding is consistent with disability; 21 2. Whether the ALJ properly considered Plaintiff’s symptom testimony; 1 3. Whether the ALJ properly considered the medical opinion evidence; and 2 4. Whether the ALJ properly evaluated Plaintiff’s migraines at step three. 3 ECF No. 9 at 2. 4 DISCUSSION
5 The primary issue in dispute is whether the Court should remand for further 6 proceedings or an award of benefits. Defendant concedes an error in the evaluation 7 of the medical opinion evidence and requests remand. See ECF No. 15. Plaintiff
8 argues the conceded error and other errors require remand for an immediate award of 9 benefits. ECF Nos. 9, 16. As explained below, the Court concludes that further 10 proceedings are necessary in this case. 11 A. RFC Finding
12 Plaintiff contends that the RFC finding is consistent with disability and that 13 benefits should be awarded on that basis. ECF No. 9 at 3-4; ECF No. 16 at 2-3. 14 The RFC includes a limitation to “occasional, superficial interaction with others.”
15 Tr. 22. Based on vocational expert testimony, the ALJ found that Plaintiff can 16 perform occupations such as marker, marker II, and router, all of which are specific 17 vocational preparation (SVP) level 2 jobs. SVP-2 jobs are those jobs that are 18 learned beyond a short demonstration up to and including one month.
19 At the hearing, counsel asked the vocational expert, “[a]nd for some – for 20 these SVP: 2 level jobs, when a person is in training and learning to do that job, how 21 much are they interacting with supervisors or trainers?” Tr. 97. The vocational 1 expert testified that, “[d]uring the training period it would probably be frequent 2 because they’re teaching them the job.” Tr. 97. Plaintiff argues that a person who is 3 limited to occasional superficial contact would not get past the training period 4 requiring frequent contact, and therefore cannot sustain substantial gainful activity.
5 ECF No. 9 at 3-4. 6 This testimony indicates that Plaintiff's RFC may be inconsistent with the 7 ability to complete a standard training period of the SVP-2 jobs identified, as
8 training for SVP-2 jobs typically requires more frequent supervisor contact than 9 Plaintiff is capable of tolerating. However, it is unclear from the vocational expert’s 10 testimony whether a person with Plaintiff’s RFC would be terminated during the 11 training period or if they could perform the training and work required by the jobs
12 identified. Furthermore, there was no testimony indicating whether any jobs exist 13 which require only occasional contact during training which someone with 14 Plaintiff’s RFC could perform. There are ambiguities resulting from the vocational
15 expert’s testimony and it is therefore not evident Plaintiff is disabled based on the 16 RFC. On remand, the ALJ is instructed to take new vocational expert testimony and 17 resolve any conflicts in the expert’s testimony. 18 B. Symptom Testimony
19 Plaintiff contends the ALJ failed to properly consider her symptom testimony 20 and that it should be credited as a matter of law. ECF No. 9 at 4-14; ECF No. 16 at 21 3-8. An ALJ engages in a two-step analysis to determine whether a claimant’s 1 testimony regarding subjective pain or symptoms is credible. “First, the ALJ must 2 determine whether there is objective medical evidence of an underlying impairment 3 which could reasonably be expected to produce the pain or other symptoms alleged.” 4 Molina, 674 F.3d at 1112 (internal quotation marks omitted). “The claimant is not
5 required to show that her impairment could reasonably be expected to cause the 6 severity of the symptom she has alleged; she need only show that it could reasonably 7 have caused some degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591
8 (9th Cir. 2009) (internal quotation marks omitted). 9 Second, “[i]f the claimant meets the first test and there is no evidence of 10 malingering, the ALJ can only reject the claimant’s testimony about the severity of 11 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the
12 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 13 citations and quotations omitted). “General findings are insufficient; rather, the ALJ 14 must identify what testimony is not credible and what evidence undermines the
15 claimant’s complaints.” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 16 1995); see also Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ 17 must make a credibility determination with findings sufficiently specific to permit 18 the court to conclude that the ALJ did not arbitrarily discredit claimant’s
19 testimony.”). “The clear and convincing [evidence] standard is the most demanding 20 required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 21 1 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2 2002)). 3 Factors to be considered in evaluating the intensity, persistence, and limiting 4 effects of a claimant’s symptoms include: 1) daily activities; 2) the location,
5 duration, frequency, and intensity of pain or other symptoms; 3) factors that 6 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and side 7 effects of any medication an individual takes or has taken to alleviate pain or other
8 symptoms; 5) treatment, other than medication, an individual receives or has 9 received for relief of pain or other symptoms; 6) any measures other than treatment 10 an individual uses or has used to relieve pain or other symptoms; and 7) any other 11 factors concerning an individual’s functional limitations and restrictions due to pain
12 or other symptoms. Social Security Ruling 16-3p, 2017 WL 5180304, at *9 13 (effective October 25, 2017); 20 C.F.R. § 4104.1529(c). The ALJ is instructed to 14 “consider all of the evidence in an individual’s record,” to “determine how
15 symptoms limit ability to perform work-related activities.” SSR 16-3p, at *2. 16 The ALJ found that Plaintiff’s statements are not entirely consistent with the 17 objective medical and other evidence. Tr. 23. First, the ALJ discussed the objective 18 evidence regarding Plaintiff’s severe impairments. Tr. 23-24. An ALJ may not
19 discredit a claimant’s pain testimony and deny benefits solely because the degree of 20 pain alleged is not supported by objective medical evidence. Rollins v. Massanari, 21 261 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th 1 Cir. 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). However, the medical 2 evidence is a relevant factor in determining the severity of a claimant’s pain and its 3 disabling effects. Rollins, 261 F.3d at 857. Minimal objective evidence is a factor 4 which may be relied upon in discrediting a claimant’s testimony, although it may not
5 be the only factor. See Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). 6 Regarding gastrointestinal complaints, the ALJ first found Plaintiff’s 7 complaints are not entirely consistent with the unremarkable workup findings during
8 the period at issue. Tr. 23. The ALJ noted that findings from a CT scan in May 9 2020, a colonoscopy in June 2020, a video capsule endoscopy in October 2020, and 10 an abdominal MRI in April 2021 all indicated that Plaintiff’s bowel condition is not 11 active and do not corroborate her claims of unstable bowel symptoms. Tr. 23, 397,
12 395, 526, 706. Plaintiff argues her lymphocytic colitis is a condition that would not 13 be detected by scopes and imaging cited by the ALJ, even if it was active. ECF No. 14 9 at 8. Plaintiff further argues the ALJ indicated he was unfamiliar with
15 lymphocytic colitis and misunderstood the condition. ECF No. 9 at 8; Tr. 92. 16 Assuming without determining that Plaintiff is correct and that the ALJ 17 misunderstood Plaintiff’s disorder and the significance of the unremarkable test 18 findings, the matter must be remanded for further consideration and development on
19 this issue. 20 Next, the ALJ observed that Plaintiff’s complaints of chronic diarrhea and 21 poor appetite are not supported by evidence of weight loss. Tr. 23. The ALJ cited 1 records indicating that from November 2020 to February 2022, Plaintiff’s weight 2 ranged between 180 pounds and 192 pounds, with a low in February 2021 of 178 3 pounds. Tr. 23. The ALJ noted that Plaintiff’s weight had been relatively stable and 4 had actually increased since the beginning of 2021, which the ALJ concluded does
5 not substantiate Plaintiff’s claims of poor appetite and chronic diarrhea. Tr. 23. 6 Plaintiff contends there was no basis in the record for the ALJ to expect dramatic 7 weight loss due to her GI condition and observes that the record actually shows a
8 weight loss of 36.65 pounds from April 2019 to January 2021. ECF No. 9 at 22 9 (citing Tr. 351, 352, 363, 406, 408, 411, 421, 456, 490, 525, 551). The significance 10 of Plaintiff’s weight loss or lack thereof is not clear from the record and requires 11 further consideration and development on remand.
12 Lastly, the ALJ noted that contrary to claims of chronic severe abdominal 13 pain, exam findings have shown only mild or minimal abdominal tenderness. Tr. 14 23-24, 357, 700, 883, 887, 893. Plaintiff argues that such findings do not undermine
15 her allegations since there were findings of at least mild tenderness. ECF No. 9 at 16 10. Although the ALJ’s conclusion that the degree of severity alleged is inconsistent 17 with findings on exam seems reasonable, in light of the need to reconsider the above 18 GI findings, on remand, the ALJ should reconsider Plaintiff’s GI symptoms overall.
19 The ALJ may find the testimony of a medical expert or an examining medical 20 opinion helpful. 21 1 Regarding migraines, the ALJ found that Plaintiff’s allegations are not fully 2 consistent with the evidence. Tr. 24. Social Security Ruling 19-4p provides that in 3 evaluating headache disorders, it is appropriate to “consider the extent to which the 4 person’s impairment-related symptoms are consistent with the evidence in the
5 record.” Social Security Ruling 19-4p, 2019 WL 4169635, at *8 (effective August 6 26, 2019). “Consistency and supportability between reported symptoms and 7 objective medical evidence is key in assessing the RFC.” Id. The ALJ noted
8 Plaintiff has not been to an emergency room for treatment for a headache episode, 9 and that her neurologic findings have regularly been normal. Tr. 24. The ALJ also 10 noted Plaintiff has usually presented in no distress during appointments. Tr. 24. 11 Plaintiff suggests this is insufficient to discredit Plaintiff’s headache testimony
12 because SSR 19-4p indicates that a primary headache disorder can sometimes 13 warrant an emergency visit for diagnosis or treatment, which Plaintiff already had, 14 and that abnormal neurologic findings would not be expected for migraines. ECF
15 No. 9 at 4-5. Furthermore, Plaintiff argues the frequency of her migraines indicates 16 an inability to work. ECF No. 9 at 5. On remand, the ALJ should reconsider 17 Plaintiff’s migraines and should discuss evidence in the record such as evidence of 18 treatment and frequency, not just an absence of findings which may be of limited
19 relevance. 20 Regarding back pain, the ALJ noted Plaintiff testified she has debilitating 21 back pain and an SI fusion was recommended. Tr. 24. The ALJ observed, however, 1 that Plaintiff declined surgical consultation for her spine. Tr. 24, 883. The ALJ also 2 observed that x-ray showed only mild degenerative disc disease and mild lumbar 3 levoscoliosis, which were noted to be “mild abnormalities of the discs but nothing 4 else.” Tr. 24, 899. A January 2022 MRI revealed only a mild disc bulge at L3-4
5 with no central canal stenosis or foraminal stenosis. Tr. 24, 909. Furthermore, the 6 ALJ observed physical findings of the back have been benign. Tr. 24, 360, 631, 7 700, 883. The ALJ found that the relatively unremarkable findings from imaging
8 and exams do not corroborate Plaintiff’s description of incapacitating back pain and 9 limitations. Tr. 24. Plaintiff takes issue with the ALJ’s consideration of the record 10 and asserts the ALJ failed to state what testimony was being discounted. ECF No. 9 11 at 10-11. The ALJ’s finding may be reasonable, but since this matter is remanded
12 on other grounds, the ALJ’s entire finding regarding Plaintiff’s symptom testimony 13 must be reconsidered. 14 Regarding obesity, the ALJ observed that Plaintiff has not had significant
15 complications due to her weight. Tr. 24. Plaintiff argues the ALJ did not identify 16 any testimony contradictory to this finding and that this is not sufficient basis to 17 discount her allegations. ECF No. 9 at 11. To the extent the ALJ discounted 18 Plaintiff’s testimony on this basis, the finding is insufficient.
19 Regarding mental impairments, the ALJ found that Plaintiff’s allegations of 20 chronic disabling mental symptoms and limitations are contrary to treatment notes 21 indicating generally mild symptoms and situational stressors. Tr. 25. The ALJ 1 noted instances of Plaintiff reporting mild, minimal, or no symptoms of depression 2 on the PHQ-9. Tr. 25, 411, 415, 950-51, 954-55, 963, 966, 972, 975, 981. The ALJ 3 also noted reported Plaintiff’s GAD-7 results for anxiety were moderate when her 4 son had a high fever and she was concerned that he had COVD, but mild anxiety on
5 other occasions. Tr. Tr. 25, 411, 415, 950-51, 954-55. The ALJ observed that 6 Plaintiff’s provider attributed increased symptoms to recent situational stressors, 7 including her divorce, a complicated relationship with her mother, and her son being
8 sick. Tr. 25, 951, 956. Plaintiff argues the PHQ-9 and GAD-7 are screening tools 9 for anxiety and depression and do not provide information about workplace 10 limitations. ECF No. 9 at 12. However, the ALJ’s point is that Plaintiff’s 11 complaints are less reliable because she often reported mild, minimal, or no
12 depression or anxiety symptoms to her providers and increases in symptoms were 13 attributable to situational stressors, but she alleged disabling mental symptoms in 14 connection with her disability claim.
15 The ALJ also found Plaintiff’s mental allegations of marked cognitive, social, 16 and mental dysfunction are not consistent with benign presentation and mental status 17 exam findings. Tr. 25. The ALJ noted mental exam findings often included 18 findings such as normal mood, full range of affect, appropriate grooming,
19 pleasant/cooperative behavior, normal speech, linear thought processes, full 20 orientation, fair memory, fair attention/concentration, normal language, average fund 21 of knowledge, fair insight/judgment, and normal thought content. Tr. 27 (citing Tr. 1 360, 363, 400, 406, 631, 698, 700, 905, 952, 961, 963, 966-67, 969-70, 973, 975, 2 981). Plaintiff argues the ALJ’s finding is not sufficiently specific as to the 3 allegations discounted and does not address certain specific limitation alleged. ECF 4 No. 9 at 12. Plaintiff also takes issue with the ALJ’s interpretation of the evidence.
5 ECF No. 9 at 12. On remand, the ALJ should reassess the mental limitations and 6 specifically address Plaintiff’s claimed limitations and identify the discounted 7 allegations.
8 The second reason given by the ALJ for discounting Plaintiff’s symptoms 9 statements is that her activities suggest greater functioning than alleged. Tr. 25. It is 10 reasonable for an ALJ to consider a claimant’s activities which undermine claims of 11 totally disabling pain in assessing a claimant’s symptom complaints. See Rollins,
12 261 F.3d at 857. However, it is well-established that a claimant need not “vegetate 13 in a dark room” in order to be deemed eligible for benefits. Cooper v. Bowen, 815 14 F.2d 557, 561 (9th Cir. 1987). Notwithstanding, if a claimant is able to spend a
15 substantial part of her day engaged in pursuits involving the performance of physical 16 functions that are transferable to a work setting, a specific finding as to this fact may 17 be sufficient to discredit an allegation of disabling excess pain. Fair, 885 F.2d at 18 603. Furthermore, “[e]ven where [Plaintiff’s daily] activities suggest some difficulty
19 functioning, they may be grounds for discrediting the claimant’s testimony to the 20 extent that they contradict claims of a totally debilitating impairment.” Molina, 674 21 F.3d at 1113. 1 The ALJ found that Plaintiff testified that she has difficulty performing basic 2 daily activities such as cleaning and shopping, but the record indicates that she was 3 getting paid to clean her dad’s house in 2020 and that she was doing most of the 4 shopping and errands for her house in 2021. Tr. 25, 905, 963, 966. The ALJ also
5 found Plaintiff’s testimony is not fully consistent the emotional physical, and 6 cognitive demands of providing daily care for her young son who was born in 2018. 7 Tr. 905; see Rollins, 261 F.3d at 857 (Plaintiff’s ability to care for young children
8 without help may undermine claims of totally disabling pain); but see Trevizo v. 9 Berryhill, 871 F.3d 664, 681 (9th Cir. 2017) (“the mere fact that she cares for small 10 children does not constitute an adequately specific conflict with her reported 11 limitations.”). Plaintiff argues the ALJ’s interpretation of the record is incorrect and
12 insufficiently specific. ECF No. 9 at 12-13. On remand, the ALJ will reconsider 13 Plaintiff’s daily activities and provide sufficiently specific findings. 14 C. Medical Opinion Evidence
15 For claims filed on or after March 27, 2017, the regulations provide that the 16 ALJ will no longer “give any specific evidentiary weight…to any medical 17 opinion(s)…” Revisions to Rules Regarding the Evaluation of Medical Evidence, 18 2017 WL 168819, 82 Fed. Reg. 5867-88 (Jan. 18, 2017); 20 C.F.R. §
19 404.1520c. Instead, an ALJ must consider and evaluate the persuasiveness of all 20 medical opinions or prior administrative medical findings from medical sources. 20 21 C.F.R. § 404.1520c(a) and (b); Woods v. Kijakazi, 32 F.4th 785, 790-92 (9th Cir. 1 2022). Supportability and consistency are the most important factors in evaluating 2 the persuasiveness of medical opinions and prior administrative findings, and 3 therefore the ALJ is required to explain how both factors were considered. 20 4 C.F.R. § 404.1520c(b)(2). The ALJ may, but is not required, to explain how other
5 factors were considered. 20 C.F.R. § 404.1520c(b)(2); see 20 C.F.R. § 6 404.1520c(c)(1)-(5). 7 1. Robert Hander, M.D., and Norman Staley, M.D.
8 Plaintiff contends and Defendant concedes that the ALJ erred regarding the 9 opinions of Drs. Hander and Staley. ECF No. 9 at 16-17; ECF No. 15 at 2-3. In 10 May 2020, Dr. Hander reviewed the record and opined that Plaintiff has limitations 11 consistent with light work, should avoid concentrated exposure to fumes, odors,
12 dusts, gases, poor ventilations, etc., and “requires ready access to clean restroom, 13 and ability to use it as needed.” Tr. 136-37. In March 2021, Dr. Staley reviewed the 14 record and assessed the same limitations. Tr. 152-55.
15 The ALJ found the opinions of Dr. Hander and Dr. Staley are persuasive 16 because they are supported by the medical record and consistent with the 17 longitudinal evidence.4 Tr. 26. Defendant concedes that despite finding the 18 opinions persuasive, the ALJ did not include any limitation in the RFC regarding
19 4 The ALJ rejected the limitation to exposure to pulmonary irritants, Tr. 26, which is 20 not contested by Plaintiff and is not at issue in this case. 21 1 access to a restroom as needed, nor did the ALJ reject the limitation. Tr. 22; ECF 2 No. 15 at 3. The ALJ’s failure to either provide reasons supported by substantial 3 evidence to reject the restroom limitation or to properly incorporate it into the 4 assessed RFC constitutes error. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886
5 (9th Cir. 2006) (“an ALJ is not free to disregard properly supported limitations”). 6 Defendant notes that the opinions are consistent with Plaintiff’s own 7 testimony that she needs to use the restroom frequently, which was rejected by the
8 ALJ. ECF No. 15 at 3. Thus, there is an unresolved conflict between the ALJ’s 9 finding that Plaintiff’s testimony is unreliable and the finding that Dr. Hander’s and 10 Dr. Staley’s opinions are persuasive. Plaintiff argues there is no conflict because the 11 ALJ’s finding rejecting Plaintiff’s symptom statements is also erroneous. ECF No.
12 16 at 10-11. Because there are deficiencies and ambiguities in the ALJ’s findings 13 regarding Plaintiff’s symptom allegations which must be resolved by the ALJ, as 14 discussed supra, the matter must be remanded for reconsideration. See Morgan v.
15 Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599-600 (9th Cir. 1999). 16 2. Marieta J. Morales Jimenez, M.D. 17 Dr. Morales Jimenez completed a Medical Report form in September 2021 18 and listed diagnoses of anxiety, depression, PTSD, IBS, bronchial hyperreactivity,
19 seizure disorder, chronic migraines, myofascial pain right shoulder, SI joint pain, 20 bicep tendinitis right shoulder, low back pain, mild scoliosis, and mild lumbar 21 degenerative disc disease. Tr. 510. She indicated that Plaintiff needs to lie down 1 during the day for a few hours due to pain or migraines. Tr. 510. Dr. Morales 2 Jimenez opined that work on a regular and continuous basis would not cause 3 Plaintiff’s condition to deteriorate but would likely increase her back pain. Tr. 511. 4 She also opined that Plaintiff would miss four or more days of work per month due
5 to a combination of physical and mental factors. Tr. 511. She stated that “[h]er pain 6 is very limiting, her diarrhea @ times is so severe that I doubt she would be able to 7 not use bathroom as much at work.” Tr. 511.
8 The ALJ found Dr. Morales Jimenez’s opinion is not persuasive. Tr. 26. 9 First, the ALJ found Dr. Morales Jimenez’s opinion is not supported by her own 10 treatment notes which contain only sporadic complaints about the conditions that are 11 the basis of Plaintiff’s claim for disability. Tr. 26. The more relevant the objective
12 medical evidence and supporting explanations provided by a medical source to 13 support his or her opinion, the more persuasive the medical opinion will be. 20 14 C.F.R. § 404.1520c. The ALJ observed that records from 2020 and February 2021
15 document complaints such as the flu, hemorrhoids, anxiety, restless leg syndrome, 16 and a nodule in the bikini area. Tr. 27 (citing Tr. 402, 411, 415, 418, 421, 477). The 17 ALJ noted Plaintiff saw Dr. Morales Jimenez for complaints of back pain, shoulder 18 pain, and diarrhea only in April 2020. Tr. 27 (citing Tr. 435, 445). Accordingly, the
19 ALJ found that these treatment notes do not support Dr. Morales Jimenez Jimenez’s 20 conclusion that Plaintiff is disabled due to multiple physical and mental conditions. 21 1 However, Plaintiff notes other instances in the record from 2019 to 2021 2 indicating that Dr. Morales Jimenez treated or noted symptoms related to the 3 conditions mentioned in her opinion, including complaints about diarrhea, a referral 4 to the gastroenterologist, and treatment for diarrhea. ECF No. 9 at 18 (citing Tr.
5 418, 421, 445, 480, 483, 487, 550). Furthermore, several of the records cited by the 6 ALJ contain notes about complaints of diarrhea or pain, Dr. Morales Jiminez’s plan 7 to discuss “urgently doing a colonoscopy for her because I’m worried that she has
8 inflammatory bowel disease,” and referral and follow up with GI specialists. Tr. 9 402, 411, 421. The ALJ’s characterization of Plaintiff’s complaints as “sporadic” in 10 light of these records and notes which were not mentioned by the ALJ means the 11 finding is not supported by substantial evidence.
12 The ALJ also found Dr. Morales Jimenez’s opinion is not supported by her 13 own exam findings. Tr. 27. The ALJ indicated that since the prior decision in 14 September 2018, Dr. Morales Jimenez “has examined the claimant on only a couple
15 of occasions.” Tr. 27. In light of the numerous office visit records between 16 September 2018 and Dr. Morales Jimenez’s September 2021 opinion, the ALJ’s 17 statement appears to be unsupported. See e.g., Tr. 402, 411, 415, 418, 421, 435, 18 445, 477, 480, 483, 487, 499. Furthermore, the ALJ considered the same records
19 considered in evaluating Dr. Moralez Jiminez’s treatment notes, Tr. 27 (citing Tr. 20 402, 411, 415, 418), but did not discuss notes and findings from numerous other 21 1 records, e.g., Tr. 421, 438, 445, 480, 483, 487, 500. It is not clear that the ALJ took 2 into consideration all of Dr. Morales Jiminez’s records in evaluating her opinion. 3 Second, the ALJ found Dr. Morales Jimenez’s opinion is not consistent with 4 the longitudinal evidence. Tr. 27. The more consistent a medical opinion is with the
5 evidence from other medical sources and nonmedical sources in the claim, the more 6 persuasive the medical opinion will be. 20 C.F.R. § 404.1520c(c). The ALJ found 7 that benign mental status findings do not corroborate Dr. Morales Jimenez’s
8 assessment of disabling mental function based on the same citations and findings 9 discussed in discounting Plaintiff’s symptom statements. Tr. 27. As discussed 10 supra, these findings should be reconsidered on remand. 11 Third, the ALJ found Dr. Morales Jimenez’s opinion relied on the diagnoses
12 of irritable bowel syndrome, migraines, back pain and scoliosis which the ALJ found 13 are not as severe as alleged. Tr. 27-28. The ALJ’s discussion of these conditions as 14 they relate to Dr. Morales Jimenez’s opinion is essentially the same as the ALJ’s
15 discussion of these conditions regarding Plaintiff’s symptom statements. Tr. 27-28. 16 For the reasons discussed above, the ALJ must reconsider these findings on remand. 17 Similarly, the ALJ’s fourth reason for finding Dr. Morales Jimenez’s opinion not 18 persuasive, which is that her opinion is not consistent with Plaintiff’s activities,
19 relies on findings that must also be reconsidered, as discussed supra. Tr. 28. 20 D. Migraines – Listing 11.02 21 1 Plaintiff contends the ALJ erred by not properly assessing Plaintiff’s 2 migraines under Listing 11.02B and that benefits should be awarded on that basis. 3 ECF No. 9 at 14-15. There is no listing for migraines but the most analogous listed 4 impairment for equivalence is Listing 11.02 for epilepsy. Social Security Ruling 19-
5 4p at *7, 2019 WL 4169635 (August 26, 2019). A person with primary headache 6 disorder may exhibit equivalent signs and limitations to those detailed in Listing 7 11.02 (paragraph B or D for dyscognitive seizures). SSR 19-4p. Plaintiff alleges
8 equivalence under Listing 11.02B, which requires documentation of a detailed 9 description of a typical seizure (or equivalent for migraines), occurring at least once 10 a week for at least three consecutive months despite adherence to prescribed 11 treatment. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 11.02B.
12 The ALJ found that Plaintiff’s migraine headaches do not equal Listing 11.02. 13 Tr. 21. First, the ALJ noted that the frequency of Plaintiff’s migraines is “based 14 largely on her self-report,” and found that Plaintiff’s migraines are not as chronic or
15 as severe as described. Tr. 21, 24. As discussed supra, the ALJ’s findings regarding 16 Plaintiff symptom statements is insufficient, so the ALJ’s findings at step three 17 based on the assessment of Plaintiff’s symptom statements must also be 18 reconsidered.
19 Second, the ALJ found that none of Plaintiff’s providers had witnessed a 20 headache or migraine in the office and there is no third-party statement regarding the 21 severity of Plaintiff’s migraines, so the record does not contain a detailed description 1 of a headache event from a third party required by the Listing. Tr. 21. Plaintiff 2 contends that the ALJ misstated the requirements of the Listing and asserts SSR 19- 3 4p does not require third-party observation of a typical migraine. ECF No. 16 at 8. 4 Plaintiff contends that SSR 19-4p indicates consideration of a third-party
5 observation of a typical migraine only applies when evaluating whether migraines 6 are a medically determinable impairment, and since the ALJ found migraines are a 7 severe impairment, “[t]he headache does not need to be observed.” ECF No. 9 at 22.
8 However, while SSR 19-4p lists the main requirements of Listing 11.02B, it does not 9 include all of the details of the listing. Compare SSR 19-4p, 2019 WL 416963 at *7 10 with 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 11.01H2. The listing description for 11 evaluating seizures or headaches under Listing 11.02 actually indicates:
12 Description of seizure. We require at least one detailed description of your seizures from someone, preferably a medical professional, who 13 has observed at least one of your typical seizures. If you experience more than one type of seizure, we require a description of each type. 14 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 11.01H2 (emphasis added). Thus, equivalence 15 with Listing 11.02 requires a detailed description of a headache event from someone 16 who has witnessed it, consistent with the ALJ’s finding. Plaintiff does not appear to 17 dispute the ALJ’s determination that the record does not contain a detailed 18 description of a headache event from a provider who has observed at least one such 19 event. ECF No. 9 at 14-15. As such, the Court finds no basis to remand for an 20 award of benefits based on Listing 11.02. Nonetheless, the ALJ should reevaluate 21 1 D. Remedy 2 The Court has discretion to remand a case for additional evidence or to simply 3 award benefits. Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (citing 4 Stone v. Heckler, 761 F.2d 530 (9th Cir. 1985)). Generally, when the Court reverses
5 an ALJ’s decision, “the proper course, except in rare circumstances, is to remand to 6 the agency for additional investigation or explanation.” Benecke v. Barnhart, 379 7 F.3d 587, 595 (9th Cir. 2004) (citations omitted). However, in a number of Social
8 Security cases, the Ninth Circuit has “stated or implied that it would be an abuse of 9 discretion for a district court not to remand for an award of benefits” when three 10 conditions are met. Garrison, 759 F.3d at 1020 (citations omitted). 11 Under the credit-as-true rule, where (1) the record has been fully developed
12 and further administrative proceedings would serve no useful purpose; (2) the ALJ 13 has failed to provide legally sufficient reasons for rejecting evidence, whether 14 claimant testimony or medical opinion; and (3) if the improperly discredited
15 evidence were credited as true, the ALJ would be required to find the claimant 16 disabled on remand, we remand for an award of benefits. Revels v. Berryhill, 874 17 F.3d 648, 668 (9th Cir. 2017). Even where the three prongs have been satisfied, this 18 Court will not remand for immediate payment of benefits if “the record as a whole
19 creates serious doubt that a claimant is, in fact, disabled.” Garrison, 759 F.3d at 20 1021. 21 1 As discussed throughout this decision, there are ambiguities which must 2 || resolved and issues to be reconsidered by the ALJ. Therefore, after weighing the applicable factors, the Court finds the appropriate remedy is to remand for additional proceedings consistent with this order. 5 CONCLUSION 6 Having reviewed the record and the ALJ’s findings, this Court concludes the ALJ’s decision is not supported by substantial evidence and free of harmful legal 8 || error. 9 Accordingly, 10 1. Plaintiff's Brief requesting an award of benefits, ECF No. 9, is DENIED. 11 2. Defendant’s Brief requesting remand for further proceedings, ECF No. 15, is GRANTED. 13 3. This case is REVERSED and REMANDED for further administrative 14]| proceedings consistent with this Order pursuant to sentence four of 42 U.S.C. § 15 |} 405(g). 16 IT IS SO ORDERED. The District Court Clerk is directed to enter this Order and provide copies to counsel. Judgment shall be entered for the Plaintiff 18 || and the file shall be CLOSED. 19 DATED September 5, 2024.
21 —_—“Tondy SUKO Senior United States District Judge ORDER _ 972