Zavery v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: March 19, 2021
• Docket: 3:20-cv-05406
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 CYN Z., 8 Plaintiff, CASE NO. C20-5406-MAT 9 v. ORDER RE: SOCIAL SECURITY 10 DISABILITY APPEAL COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12

13 Plaintiff proceeds through counsel in her appeal of a final decision of the Commissioner of 14 the Social Security Administration (Commissioner). The Commissioner denied Plaintiff’s 15 application for Supplemental Security Income (SSI) after a hearing before an Administrative Law 16 Judge (ALJ). Having considered the ALJ’s decision, the administrative record (AR), and all 17 memoranda of record, this matter is REVERSED and REMANDED for further administrative 18 proceedings. 19 FACTS AND PROCEDURAL HISTORY 20 Plaintiff was born on XXXX, 1974,1 and has a high school education (AR 32.) Plaintiff 21 applied for SSI in March 2015. (AR 34.) Following a remand order from the Appeals Council (AR 22 23 1 Dates of birth must be redacted to the year. Fed. R. Civ. P. 5.2(a)(2) and LCR 5.2(a)(1). 1 270-75), ALJ Rebecca L. Jones held a hearing on March 26, 2019, taking testimony from Plaintiff 2 and a vocational expert (VE). (AR 157-93.) On June 10, 2019 the ALJ issued a decision finding 3 Plaintiff not disabled. (AR 14-42.) Plaintiff timely appealed. The Appeals Council denied 4 Plaintiff’s request for review (AR 1-7), making the ALJ’s decision the final decision of the

5 Commissioner. Plaintiff now seeks judicial review. 6 JURISDICTION 7 The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g). 8 DISCUSSION 9 The Commissioner follows a five-step sequential evaluation process for determining 10 whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must 11 be determined whether the claimant is gainfully employed. The ALJ found Plaintiff had not 12 engaged in substantial gainful activity since March 2, 2012, the amended alleged onset date. (AR 13 20.) At step two, it must be determined whether a claimant suffers from a severe impairment. The 14 ALJ found severe Plaintiff’s fibromyalgia, interstitial lung disease, somatoform disorder, anxiety

15 disorder not otherwise specified, and major depressive disorder; and not severe Plaintiff’s migraine 16 headaches and idiopathic hypersomnia/narcolepsy. (AR 20-21.) The ALJ did not make any 17 findings regarding Plaintiff’s clubbed fingers. Step three asks whether a claimant’s impairments 18 meet or equal a listed impairment. The ALJ found that Plaintiff’s impairments did not meet or 19 equal the criteria of a listed impairment. (AR 21.) 20 If a claimant’s impairments do not meet or equal a listing, the Commissioner must assess 21 residual functional capacity (RFC) and determine at step four whether the claimant has 22 demonstrated an inability to perform past relevant work. The ALJ found Plaintiff capable of 23 performing light work as defined in 20 CFR 416.967(b), subject to additional limitations. (AR 23.) 1 With that assessment, and with the assistance of the VE, the ALJ found Plaintiff able to perform 2 the following jobs existing in significant numbers in the national economy: marker, production 3 assembler, and garment folder. (AR 32-33.) The ALJ concluded Plaintiff was not disabled from 4 March 2, 2014 through the date of the decision. (AR 33.)

5 This Court’s review of the ALJ’s decision is limited to whether the decision is in 6 accordance with the law and the findings supported by substantial evidence in the record as a 7 whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means more 8 than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable 9 mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750 10 (9th Cir. 1989). If there is more than one rational interpretation, one of which supports the ALJ’s 11 decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 12 2002). 13 Plaintiff argues the ALJ erred by (1) finding Plaintiff’s migraines, hypersomnia, and 14 clubbed fingers not severe at step two; (2) discounting her testimony; and (3) discounting certain

15 medical evidence and opinions. The Commissioner argues that the ALJ’s decision is supported by 16 substantial evidence and should be affirmed. 17 Step Two 18 At step two, a claimant must make a threshold showing that her medically determinable 19 impairments significantly limit her ability to perform basic work activities. See Bowen v. Yuckert, 20 482 U.S. 137, 145 (1987); 20 C.F.R. § 404.1520(c). To establish a severe impairment at step two, 21 the condition “must result from anatomical, physiological, or psychological abnormalities that can 22 be shown by medically acceptable clinical and laboratory diagnostic techniques. Therefore, a 23 physical or mental impairment must be established by objective medical evidence from an 1 acceptable medical source.” 20 C.F.R. § 404.1521. Plaintiff carries the burden of proving an 2 impairment is disabling; a statement of symptoms is insufficient. Miller v. Heckler, 770 F.2d 845, 3 849 (9th Cir. 1985). 4 Plaintiff argues the ALJ erred at step two in finding migraines, hypersomnia, and clubbed

5 fingers not severe impairments. 6 Regarding migraines and hypersomnia, the ALJ found “there is no objective medical 7 evidence to show these impairments are more than transient or that they cause significant 8 vocational limitations.” (AR 20.) As to migraines, the ALJ acknowledged “[t]he medical records 9 note complaints and treatment for migraine headaches,” but found “imaging of the brain showed 10 no evidence of etiology or sequlae of migraine headaches.” (Id.) Plaintiff argues the ALJ harmfully 11 erred by requiring imagining results. Dkt. 22 at 12. Plaintiff correctly points to SSR 19-4p, which 12 states: “While imaging may be useful in ruling out other possible causes of headache symptoms, 13 it is not required for a primary headache diagnosis.” Further, the ALJ does not have the expertise 14 to evaluate what clinical findings are necessary to corroborate Plaintiff’s claims, particularly when

15 the cause of migraines is generally unknown. See Day v. Weinberger, 522 F.2d 1154, 1156 (9th 16 Cir. 1975) (recognizing that an ALJ is “not qualified as a medical expert”); Johnson v. Saul, No. 17 2:18-cv-226-EFC, 2019 WL 4747701, at *4 (E.D. Cal. Sept. 30, 2019) (noting that “the cause of 18 migraine headaches is generally unknown”); Groff v. Comm’r of Soc. Sec., No. 7:05-CV-54, 2008 19 WL 4104689, at *8 (N.D.N.Y. Sept. 3, 2008) (citing The Merck Manual 1376 (17th ed. 1999)). 20 In response, the Commissioner argues Plaintiff “fails to recognize the other evidence the 21 ALJ considered that showed Plaintiff had declined pain medication and failed to consistently report 22 severe migraine concerns and limitations to her providers.” Dkt. 27 at 12. However, the ALJ did 23 not reject the severity of Plaintiff’s migraines on this basis and this defense is thus an impermissible 1 post hoc argument. The Court reviews the ALJ’s decision “based on the reasoning and factual 2 findings offered by the ALJ—not post hoc rationalizations that attempt to intuit what the 3 adjudicator may have been thinking.” Bray v. Comm’r of Soc. Sec., 554 F.3d 1219, 1225 (9th Cir. 4 2009) (citing, inter alia, Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999) (“The requirement of

5 reason-giving exists, in part, to let claimants understand the disposition of their cases…”)). The 6 ALJ accordingly erred in finding migraines not severe at step two. 7 Next, as to hypersomnia, although the ALJ acknowledged Plaintiff “has a history of 8 disordered sleep,” the ALJ found “a sleep latency test could not rule out narcolepsy, it yielded 9 otherwise normal results, and a polysomnogram report showed hypersomnia or somnolence 10 without significant sleep apnea.” (AR 20.) Despite finding the record established a diagnosis of 11 hypersomnia, the ALJ neither explained why the condition is not severe nor assessed it in 12 determining Plaintiff’s RFC. The ALJ accordingly harmfully erred in finding hypersomnia not 13 severe at step two. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (the failure to address 14 an impairment at step two is harmful if the RFC does not discuss it at step four).

15 Finally, the ALJ neither discussed Plaintiff’s clubbed fingers at step two nor considered 16 the condition in fashioning the RFC. Although there is no dispute Plaintiff has clubbed fingers, the 17 parties argue over the impact of the condition. The parties’ arguments, however, are not a 18 substitution for the ALJ’s responsibility to assess the condition’s potential functional limitations 19 in determining Plaintiff’s ability to perform work. Remand is thus necessary for such an 20 assessment in the first instance. 21 Plaintiff’s Testimony 22 Because the ALJ erred at step 2 and in evaluating the medical evidence below, the ALJ 23 should reassess Plaintiff’s testimony on remand. 1 Medical Evidence 2 An ALJ may only reject the contradicted opinion of a treating or examining doctor by 3 giving “specific and legitimate” reasons. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). 4 Plaintiff argues the ALJ erred by discounting the opinions of Mark Heilbrunn, M.D., Scott Alvord,

5 Psy.D., Kimberly Wheeler, Ph.D., and Christina Diamonti, Psy.D. Dkt. 22 at 2. The ALJ 6 discounted all four doctors’ opinions as overly reliant on Plaintiff’s self-reports. (AR 29-31.) 7 However, because the ALJ must reevaluate Plaintiff’s testimony, this is not a valid ground to 8 discount these medical opinions. The ALJ also discounted the opinions for other reasons, which 9 the Court addresses in turn. 10 Dr. Heilbrunn 11 The ALJ found “Dr. Heilbrunn provided significant limitation on the claimant’s use of her 12 upper extremities for fine and gross manipulation, but there are no examination findings of 13 significant deficits in motor function or sensation in the upper extremities.” (AR 29.) As discussed 14 above, the ALJ failed to consider Plaintiff's clubbed fingers, which reasonably may impact her

15 ability to manipulate. The ALJ’s finding is accordingly not supported by substantial evidence. 16 Dr. Wheeler 17 Dr. Wheeler “opined that the claimant had severe limitations pertaining to her ability to 18 perform activities within a schedule, maintain regular attendance, be punctual within customary 19 tolerances without special supervision, and complete a normal workday and workweek without 20 interruptions from psychologically based symptoms.” (AR 30.) In discounting Dr. Wheeler’s 21 opinion, the ALJ noted Dr. Wheeler’s “examinations were conducted for the purpose of 22 determining the claimant’s eligibility for state assistance; the claimant was likely aware that the 23 continuation of her state assistance was dependent upon the DSHS evaluations, and she therefore 1 had incentive to overstate her symptoms and complaints.” (Id.) This is a legally erroneous ground 2 on which to discount a doctor’s opinion. See Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995) 3 (“The purpose for which medical reports are obtained does not provide a legitimate basis for 4 rejecting them.”). The ALJ also discounted Dr. Wheeler’s limitations as “not consistent with the

5 claimant’s ability to engage” in a “robust range of activities.” (AR 30.) Plaintiff’s minimal 6 activities are not inconsistent with Dr. Wheeler’s limitations. 7 Dr. Diamonti 8 Dr. Diamonti opined Plaintiff’s “impairments and symptoms had a marked effect on her 9 ability to perform activities within a schedule, maintain regular attendance, be punctual within 10 customary tolerances without special supervision, perform routine tasks without special 11 supervision, adapt to changes in a routine work setting, set realistic goals, and plan independently.” 12 (AR 31.) The ALJ gave Dr. Diamonti’s opinion “little weight,” finding it inconsistent with her 13 own exam findings, “which indicate that the claimant’s thought process, thought content, mental 14 orientation, mental perception, memory, fund of knowledge, concentration, insight, judgment, and

15 ability to engage in abstract thought were all within normal limits.” (Id.) Substantial evidence does 16 not support the ALJ’s finding. A showing of no cognitive impairments is not mutually exclusive 17 with Plaintiff’s somatoform, anxiety, and major depressive disorders, all of which reasonably may 18 impede Plaintiff from discharging work-related responsibilities. The ALJ accordingly erred in 19 discounting Dr. Diamonti’s opinion on this ground. 20 The ALJ also appeared to discount Dr. Diamonti’s opinion as inconsistent with that of 21 reviewing psychologist Brian VanFossen, Ph.D. Because none of the other reasons the ALJ 22 proffered to discount Dr. Diamonti’s opinion are supported by substantial evidence, this reason is 23 legally insufficient. See Lester, 81 F.3d at 831 (“The opinion of a nonexamining physician cannot 1 by itself constitute substantial evidence that justifies the rejection of the opinion of either an 2 examining physician or a treating physician.”) (citation omitted). 3 CONCLUSION 4 For the foregoing reasons, this matter is REVERSED and REMANDED for further

5 administrative proceedings. 6 DATED this 19th day of March, 2021. 7 A 8 Mary Alice Theiler 9 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23