Opinion
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable S. James Otero, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
On September 16, 2014, Plaintiff filed a complaint, seeking review of the Administration's denial of disability benefits. On June 2, 2015, the parties filed a Joint Position Statement. On August 6, 2015, the case was transferred to the present Magistrate Judge. The Court has taken the matter under submission without oral argument. See L.R. 7-15; "Case Management Order, " filed September 23, 2014.
BACKGROUND
Plaintiff, a former retail store manager, asserts disability since February 24, 2011 (Administrative Record ("A.R.") 44-45, 158-59, 176-78). An Administrative Law Judge ("ALJ") reviewed the record and heard testimony from Plaintiff, a medical expert, and a vocational expert (A.R. 26-33, 39-60).
The ALJ found Plaintiff has severe physical impairments: chronic fatigue syndrome, fibromyalgia, Lyme disease, and hypertension (A.R. 28). The ALJ found nonsevere, however, all of Plaintiff's alleged mental impairments (A.R. 28-29). The ALJ determined that: (1) Plaintiff has the residual functional capacity to perform medium work with no restrictions (A.R. 30-32 (purportedly relying on medical expert's opinion at A.R. 55-56, and internal medicine consultative examiner's opinion at A.R. 558-63)); and (2) with this capacity, Plaintiff could perform her past relevant work as a store manager (A.R. 33 (adopting vocational expert's opinion at A.R. 58-59)). In finding Plaintiff able to work, the ALJ deemed not credible the contrary statements of Plaintiff and Plaintiff's husband (A.R. 32). The Appeals Council denied review (A.R. 5-9).
The medical expert found only arthritis of the left knee and hypertension as medically determinable impairments (A.R. 55). He said he could not "validate" the allegations of Epstein Barr virus, Lyme disease, chronic fatigue syndrome "and things of that sort" (A.R. 55). He said that while he was "not entirely clear" what fibromyalgia syndrome is, he "[knew] that Social Security recognizes it so we would add that perhaps as a medically determinable impairment" (A.R. 55). Given Plaintiff's knee arthritis and fibromyalgia, the expert would limit Plaintiff to medium work with no additional restrictions (A.R. 55-56). The medical expert did not offer an opinion regarding Plaintiff's functional capacity based on the combination of severe impairments the ALJ found to exist. Compare A.R. 28.
The internal medicine consulative examiner diagnosed chronic fatigue syndrome with fibromyalgia, Lyme disease, a history of neuropathy, numbness, and tingling in Plaintiff's hands and feet secondary to Lyme disease, hypertension, and memory loss and depression (deferred to psychiatry) (A.R. 561-62). He opined that Plaintiff would be capable of performing medium work limited to working with no heavy or moving machinery (A.R. 562-63). The ALJ did not include the machinery limitation in Plaintiff's residual functional capacity determination, and did not ask the vocational expert whether that limitation would affect Plaintiff's ability to perform any of her past relevant work. See A.R. 30, 58-60.
STANDARD OF REVIEW
Under 42 U.S.C. section 405(g), this Court reviews the Administration's decision to determine if: (1) the Administration's findings are supported by substantial evidence; and (2) the Administration used correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotations omitted); see also Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).
If the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ. But the Commissioner's decision cannot be affirmed simply by isolating a specific quantum of supporting evidence. Rather, a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [administrative] conclusion.
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and quotations omitted).
DISCUSSION
Plaintiff argues, inter alia, substantial evidence does not support: (1) the ALJ's finding that Plaintiff's alleged mental impairments are "non-severe" at Step 2 of the sequential evaluation process; and (2) the ALJ's credibility findings. See Joint Position Statement, p. 4. After consideration of the record as a whole, the Magistrate Judge recommends that the Court reverse the Commissioner's decision and remand this case for further administrative proceedings consistent with the discussion herein.
I. The ALJ Erred in the Evaluation of Whether Plaintiff's Mental Impairments Are "Severe."
Social Security Ruling ("SSR") 85-28 governs the evaluation of whether an alleged impairment is "severe":
An impairment or combination of impairments is found "not severe"... when medical evidence establishes only a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual's ability to work... i.e., the person's impairment(s) has no more than a minimal effect on his or her physical or mental ability(ies) to perform basic work activities....
If such a finding [of non-severity] is not clearly established by medical evidence, however, adjudication must continue through the sequential evaluation process.
* * *
Great care should be exercised in applying the not severe impairment concept. If an adjudicator is unable to determine clearly the effect of an impairment or combination of impairments on the individual's ability to do basic work activities, the sequential evaluation process should not end with the not severe evaluation step. Rather, it should be continued.
SSR 85-28 at *3-4; see also Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (the severity concept is "a de minimis screening device to dispose of groundless claims"); accord Webb v. Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005).
Social Security rulings are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990).
In the present case, the medical evidence does not "clearly establish" the non-severity of Plaintiff's alleged mental limitations. Plaintiff asserts she suffers from confusion, disorientation, memory problems/loss, and depression (A.R. 177, 247-48). Treating physician, Dr. Samuel Silao, diagnosed depression (A.R. 645). Treating physicians from the Holtorf Medical Group, Drs. Kent Holtorf and Moses Laufer, diagnosed "cognitive dysfunction" (A.R. 570-73 (including "loss of attention to detail, " and "decreased memory"); A.R. 632 (noting "trouble with words" during an office visit); A.R. 658-59). Dr. Holtorf opined that Plaintiff would have trouble speaking due to her cognitive dysfunction and trouble remembering words on a regular basis (A.R. 571). Dr. Laufer opined that Plaintiff would have marked and extreme limitations with her understanding and memory, sustained concentration and persistence, and adaptation skills (A.R. 656-57). Dr. Laufer also opined that Plaintiff would have some marked limitations in her ability to interact with the public and coworkers (A.R. 657).
But see A.R. 87 ("Claim Communications" entry regarding a call from Plaintiff on January 12, 2012, in which Plaintiff reportedly denied then being depressed or alleging a mental impairment).
In a letter in which Dr. Holtorf purportedly explained in detail Plaintiff's condition, the section of the letter summarizing the patient's "Examination" refers to a "Mr. Ernst." See A.R. 572-73. The letter also references the patient as a "he" when listing the diagnoses (A.R. 573), although the listed diagnoses appear consistent with the treatment notes and laboratory reports for Plaintiff.
The consultative internal medicine examiner, Dr. Bryan To, diagnosed, inter alia, memory loss and depression (deferred to psychiatry) (A.R. 562). The consultative psychiatric examiner, Dr. Thaworn Rathana-Nakintara, diagnosed an adjustment disorder with depressed mood but opined that Plaintiff would have no work-related mental limitations (A.R. 568-69). It is not clear from Dr. Rathana-Nakintara's report whether Plaintiff complained to that physician of cognitive impairments. See A.R. 565-69. On mental status examination, Dr. Rathana-Nakintara noted no abnormalities or shortcomings (A.R. 567-68).
While the medical opinion evidence thus conflicted regarding the severity of Plaintiff's alleged mental limitations, evidence from Plaintiff's treating physicians certainly suggests that Plaintiff's alleged mental impairments cause more than "minimal" effects on Plaintiff's mental abilities to perform certain basic work activities. Yet, the ALJ not only found that Plaintiff has no severe mental impairment but also found that Plaintiff retains an unlimited mental residual functional capacity. The ALJ's findings violated SSR 85-28 and the Ninth Circuit authorities cited above.
The ALJ found that Plaintiff suffered only mild or no limitations in her activities of daily living, social functioning, concentration, persistence or pace, and no episodes of decompensation, and based his findings on Plaintiff's purported daily activities (A.R. 28-29). For those areas in which the ALJ found "mild" limitations, the ALJ claimed that he was giving Plaintiff all reasonable consideration and was giving "less weight" to Dr. Rathana-Nakintara's opinion that Plaintiff would have no difficulties (A.R. 29). The ALJ purportedly gave "little weight" to Dr. Laufer's opinion concerning Plaintiff's limitations as "outside the doctor's area of expertise, " and "not consistent with the record as a whole" (A.R. 29). The ALJ did not mention Dr. Holtorf's opinion that Plaintiff would have trouble speaking due to her cognitive dysfunction, and the ALJ did not indicate what weight, if any, he gave to Dr. Holtorf's opinions (A.R. 29). Given the treating physician opinions suggesting that Plaintiff's cognitive dysfunction impacts Plaintiff's abilities to do basic work activities, the sequential evaluation process for Plaintiff's alleged mental impairments should have continued beyond Step 2. See SSR 85-28.
The Court should not deem harmless the ALJ's failure to find any of Plaintiff's alleged mental impairments "severe." An ALJ sometimes properly may rely on a consultative examiner's opinion that is based on an independent examination of a claimant. See Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (a consultative examiner's opinion based on independent clinical findings constitutes substantial evidence) (citations omitted); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (same). However, an ALJ may not do so without first explaining the reasons why the ALJ rejected contrary treating physician opinions.
A treating physician's conclusions "must be given substantial weight." Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) ("the ALJ must give sufficient weight to the subjective aspects of a doctor's opinion.... This is especially true when the opinion is that of a treating physician") (citation omitted); see also Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (discussing deference owed to treating and examining physician opinions). Even where the treating physician's opinions are contradicted, as here, "if the ALJ wishes to disregard the opinion[s] of the treating physician he... must make findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record." Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987) (citation, quotations and brackets omitted); see Rodriguez v. Bowen, 876 F.2d at 762 ("The ALJ may disregard the treating physician's opinion, but only by setting forth specific, legitimate reasons for doing so, and this decision must itself be based on substantial evidence") (citation and quotations omitted).
Here, the ALJ erred by failing to acknowledge Dr. Holtorf's opinions concerning Plaintiff's mental limitations. See Lingenfelter v. Astrue, 504 F.3d 1028, 1038 n.10 (9th Cir. 2007) ("Of course, an ALJ cannot avoid these requirements [to state specific, legitimate reasons] by not mentioning the treating physician's opinion and making findings contrary to it.") (citation omitted); Salvadore v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990) (implicit rejection of treating physician's opinion cannot satisfy Administration's obligation to set forth "specific, legitimate reasons").
The reasons the ALJ stated for rejecting Dr. Laufer's opinions are not supported by substantial evidence. First, the ALJ's assertion that Dr. Laufer's opinions were "not consistent with the record as a whole" is impermissibly vague and unspecific. See, e.g., McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) ("broad and vague" reasons for rejecting treating physician's opinions do not suffice); Embrey v. Bowen, 849 F.2d at 421 ("To say that the medical opinions are not supported by sufficient objective findings or are contrary to the preponderant conclusions mandated by the objective findings does not achieve the level of specificity our prior cases have required....").
Second, while the giving of an opinion outside the treating physician's area of expertise can sometimes be a "specific and legitimate" reason for rejecting that opinion, see Seltz v. Astrue, 299 Fed.App'x 666, 668 (9th Cir. 2008), there is no evidence in the record to support the claim that Dr. Laufer's opinions concern impairments outside Dr. Laufer's area of expertise. The record before the ALJ was silent concerning Dr. Laufer's specialty or specialties. See Joint Position Statement, pp. 11-12 (Plaintiff offering to this Court for the first time Dr. Laufer's credentials reportedly obtained from the Holtorf Medical Group's website). Dr. Laufer treated Plaintiff for chronic fatigue syndrome and fibromyalgia, and indicated that Plaintiff's alleged mental limitations were based on "mini mental assessment testing" (A.R. 656-57, 659). Social Security Ruling 14-1p, which concerns how to evaluate claims involving chronic fatigue syndrome, provides:
Some people with [Chronic Fatigue Syndrome] report ongoing problems with short-term memory, information processing, visual-spatial difficulties, comprehension, concentration, speech, word-finding, calculation, and other symptoms suggesting persistent neurocognitive impairment. When ongoing deficits in these areas have been documented by mental status examination or psychological testing, such findings may constitute medical signs or (in the case of psychological testing) laboratory findings that establish the presence of a [medically determinable impairment].
See SSR 14-1p, *5. Similarly, SSR 12-2p, which concerns how to evaluate claims involving fibromyalgia, provides that symptoms of fibromyalgia include "cognitive or memory problems, " depression, and anxiety. See SSR 12-2p, *3. It appears to follow that a doctor who treats patients for chronic fatigue syndrome and fibromyalgia may have expertise in detecting and evaluating symptoms of cognitive impairments. In any event, however, if the ALJ had any question concerning the sufficiency of Dr. Laufer's expertise to evaluate Plaintiff's alleged cognitive dysfunction, or any question concerning the adequacy of the testing Dr. Laufer performed, the ALJ should have developed the record further. See Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) ("If the ALJ thought he needed to know the basis of Dr. Hoeflich's opinions in order to evaluate them, he had a duty to conduct an appropriate inquiry, for example, by subpoenaing the physicians or submitting further questions to them. He could also have continued the hearing to augment the record.") (citations omitted). The ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered, even where (as here) the claimant was represented by counsel. Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983).
In attempting to defend the ALJ's rejection of Dr. Laufer's opinions, Defendant has cited cases for the proposition that a treating physician's opinion may be rejected where treatment notes provide no basis for the functional restrictions imposed, or where the opinion is brief, conclusory, and inadequately supported by clinical findings. See Joint Position Statement, p. 7. Defendant cannot properly suggest specifics the ALJ failed to state expressly as reasons for rejecting Dr. Laufer's opinions regarding Plaintiff's mental limitations. See Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001) (court "cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision").
In sum, the Court finds that Plaintiff's alleged mental limitations could not properly be "screened" out under the "de minimis" threshold standard applicable at step two of the sequential evaluation process. See Smolen v. Chater, 80 F.3d at 1290. The types of impairments that are screened out at step two are those that "clearly" are "of a minimal nature which could never prevent a person from working." SSR 85-28 at *2 (citation omitted). Plaintiff's alleged cognitive dysfunction merited further consideration.
II. The ALJ Materially Erred in the Evaluation of Plaintiff's Credibility.
When, as in the present case, an ALJ finds that a claimant's medically determinable impairments reasonably could be expected to cause some of the symptoms alleged (A.R. 32), the ALJ may not discount the claimant's testimony regarding the severity of those symptoms without making "specific, cogent" findings, supported in the record, to justify discounting such testimony. See Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); but see Smolen v. Chater, 80 F.3d at 1282-84 (indicating that ALJ must state "specific, clear and convincing" reasons to reject a claimant's testimony where there is no evidence of malingering). Generalized, conclusory findings do not suffice. See Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) (the ALJ's credibility findings "must be sufficiently specific to allow a reviewing court to conclude the ALJ rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit the claimant's testimony") (internal citations and quotations omitted); Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (the ALJ must "specifically identify the testimony [the ALJ] finds not to be credible and must explain what evidence undermines the testimony"); Smolen v. Chater, 80 F.3d at 1284 ("The ALJ must state specifically which symptom testimony is not credible and what facts in the record lead to that conclusion."); see also SSR 96-7p.
In the absence of an ALJ's reliance on evidence of "malingering, " most recent Ninth Circuit cases have applied the "clear and convincing" standard. See, e.g., Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014); Treichler v. Commissioner, 775 F.3d 1090, 1102 (9th Cir. 2014); Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d at 1014-15 & n.18; Chaudhry v. Astrue, 688 F.3d 661, 670, 672 n.10 (9th Cir. 2012); Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); see also Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting earlier cases). In the present case, the ALJ's findings are insufficient under either standard, so the distinction between the two standards (if any) is academic.
Here, the ALJ stated he discounted Plaintiff's testimony because: (1) Plaintiff assertedly received medical treatment "essentially routine and/or conservative in nature" consisting of medications which purportedly have been "relatively effective" in controlling Plaintiff's symptoms; and (2) Plaintiff allegedly admitted to "a somewhat normal level of" daily activities (A.R. 32).
Turning first to Plaintiff's treatment, a conservative course of treatment sometimes can justify the rejection of a claimant's testimony. See, e.g., Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007), cert. denied, 552 U.S. 1141 (2008) (treatment with over-the-counter pain medication is "conservative treatment" sufficient to discredit a claimant's testimony regarding allegedly disabling pain). The ALJ acknowledged that Plaintiff suffers from chronic fatigue syndrome, fibromyalgia, Lyme disease, and hypertension, severe impairments which could be expected to cause Plaintiff's fatigue, pain, and other symptoms (A.R. 28; see also, e.g., SSR 14-1p (guidelines for evaluating chronic fatigue syndrome, discussing symptoms) and SSR 12-2p (guidelines for evaluating fibromyalgia, discussing symptoms)).
Plaintiff has a lengthy documented history of seeking treatment for her alleged symptoms. Although Plaintiff worked until February 24, 2011, the record shows regular treatment for Plaintiff's fatigue and other symptoms since 2007. Plaintiff presented to Dr. Ali Garcia at the Fibromyalgia & Fatigue Center in Las Vegas, Nevada, on August 14, 2007 (A.R. 352). Plaintiff completed a "Chronic Fatigue/Fibromyalgia Questionnaire" complaining of sleepiness, headaches and extreme fatigue assertedly preventing her from working or completing normal household duties (A.R. 352). Plaintiff reported: (1) muscle pain 4-6 days a week; (2) stiffness two times a month; (3) daily "unrefreshing" sleep, insomnia, daytime fatigue, and headaches; (4) gastrointestinal disturbances once a week; (5) numbness less than one time per month; (6) impaired concentration 4-6 days a weeks; (7) a sore throat three times a month; and (8) weight gain or loss three times a month (A.R. 352). Plaintiff estimated her energy level was two on a scale of one to 10 (A.R. 352).
Laboratory testing from September 24, 2007, indicated the presence of antibodies suggesting past Epstein-Barr virus infection, Herpesvirus 6 infection, and Cytomegalovirus infection (another herpesvirus). See A.R. 329, 335, 344. Dr. Garcia gave Plaintiff supplements ("neutraceuticals") and prescribed weekly intravenous "Energy" and "Viral Plus" injections for Epstein-Barr and Herxheimer Reaction (A.R. 349, 353-54; see also A.R. 328, 332-33, 350 (records of weekly injections)). Plaintiff returned on October 25, 2007, and Dr. Garcia ordered antiviral therapy (Valtrex), bio-identical hormone replacement therapy (cortisol, testosterone, and thyroid), human immunoglobulin injection therapy, more Viral Plus injections, and neutraceutical supplements (A.R. 330-31, 341).
See Cytomegalovirus definition available online at http://www.merriam-webster.com/dictionary/cytomegalovirus (last visited Sept. 16, 2015).
The Jarisch-Herxheimer reaction is "an increase in the symptoms of a sprirochetal disease (as syphilis, Lyme disease, or relapsing fever) occurring in some persons with treatment with spirocheticidal drugs is started." See www.merriam-webster.com/medical/jarisch-herxheimer+reaction (last visited Sept. 16,
The "Viral Plus" intravenous injection consisted of 20 mg of "Thymus, " 40 mg of "Glycyrrhizinate, " and 20, 000 mg Ascorbic Acid (Vitamin C) (A.R. 328). The "Energy" intramuscular injection consisted of one cc each of "AMP, " "NADH, " and Hydroxocobalamin, 1.5 cc of Glutathione, and 0.4 cc of NA Bicarb (sodium bicarbonate) (A.R. 332).
Plaintiff then began regular treatment with the Holtorf Medical Group in Torrance, California, where she was treated from November 2007 through at least September 2012 (A.R. 307-23, 611-15, 637, 680). Nurse Practitioner M. Dee Dee White, in consultation with a doctor, prepared most of the treatment notes. See A.R. 221-22, 230, 232, 355-79, 605-08, 632-40, 669, 680, 686-87, 691, 704. Periodic blood samples were taken for testing, and at each visit a combination of drugs and supplements were prescribed. See A.R. 223-29, 232, 380-557, 590-604, 616-31, 671-75, 681-85, 688-90, 694-703, 705 (lab results and prescriptions/refills for, inter alia, thyroid medication, Ambien, Valtrex, Provigil, Rifaximin, Lunesta, cortisol, Triiodoliothyronine, Xyrem, Amantadine, progesterone, Heparin, Lyrica, Trazodone, Ketamine, Metoprolol, Restoril, Temazepam, Toprol, Namenda, Savella, Lotensin, Desyrel, Doxycycline, Zithromax, Ultram, Tramadol, Vicodin, Flagyl, Cymbalta, Benazepril HCL, Omnicef, Clarithromycin, Questran, hydrocodone-acetaminophen, Baxin, Tindamax, Megace, Norco, and morphine).
There are also treatment records authored by Dr. Samuel A. Silao, M.D., from January 19, 2012 through October 12, 2012 (A.R. 641-55, 661-77). Plaintiff complained of fatigue, hot flashes, nausea, vomiting, constipation, diarrhea, weakness, and headaches, and said that Lyrica, Cymbalta, and Savella had provided no relief (A.R. 655). Dr. Silao assessed insomnia, chronic fatigue, chronic migraine, pain, hypertension, Lyme disease, herpetic stomatitis, coagulopathy, constipation, immunodeficiency, hypothyroidism, and depression (A.R. 641-43, 645, 647, 650, 652, 655, 663). Dr. Silao prescribed and/or refilled prescriptions for hydrocodone, morphine, Valacyclovir, Elavil, Norco, Toprol, Ambien, Viibrid, Lotensin, Lisinopril, Metoprolol, Modafinil, Oxycodone, thyroid medications, vitamin B12, as well as additional drugs whose names on the records are illegible (A.R. 641-43, 645, 647, 650, 652, 655, 663).
Thus, the record suggests that Plaintiff consistently has received numerous prescription medications for her conditions since 2007 and, as the ALJ acknowledged, Plaintiff has followed the recommended course of treatment (A.R. 32). There is no evidence that any doctor ever recommended that more could be done to alleviate Plaintiff's symptoms. "A claimant cannot be discredited for failing to pursue non-conservative treatment options where none exist." Lapeirre-Gutt v. Astrue, 382 Fed.App'x 662, 664 (9th Cir. 2010); see also Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004) (fibromyalgia is a disease "poorly-understood within much of the medical community" and for which "there is no cure"); Hall v. Astrue, 2010 WL 5115192, at *12 (E.D. Cal. Dec. 8, 2010) ("The ALJ's focus on conservative treatment also fails to recognize that the CDC has made it clear that no definitive treatment for [chronic fatigue syndrome] exists.'") (quoting Nelson v. Astrue, 610 F.Supp.2d 1070, 1077-78 (C.D. Cal. 2009) (finding that ALJ erred in citing conservative treatment where the claimant suffered from chronic fatigue syndrome)); Sullivan v. Astrue, 2010 WL 3749266, at *5 (E.D. Cal. Sept. 23, 2010) (finding ALJ erred in rejecting claimant's credibility based on "conservative medical care" where the ALJ did not explain what more aggressive treatments the claimant should have sought for her chronic fatigue syndrome and fibromyalgia; "it is not as though either condition can be treated with surgery"); Gillett v. Astrue, 2008 WL 5042848, at *3 (C.D. Cal. Nov. 25, 2008) ("[T]here is no surgical or other cure for fibromyalgia....") (citation omitted).
There is no substantial evidence in the record to support the ALJ's conclusion that the prescribed treatment was "routine or conservative" in the sense of being less aggressive than other viable, available treatments. See, e.g., Krenz v. Colvin, 2014 WL 2889759, at *4 (C.D. Cal. June 25, 2014) (ALJ's characterization of treatment for her fibromyalgia as "conservative" was not supported by substantial evidence where the claimant was taking a number of drugs including Trazodone and Tramadol); Miller v. Colvin, 2014 WL 1873276, at *2 (C.D. Cal. May 9, 2014) (same where claimant with fibromyalgia was prescribed a number of drugs including Tramadol, Vicodin, and Norco); Matamoros v. Colvin, 2014 WL 1682062, at *4 (C.D. Cal. April 28, 2014) (same where claimant with fibromyalgia was prescribed antidepressants and Vicodin, among other drugs); Sharpe v. Colvin, 2013 WL 6483069, at *8 (C.D. Cal. Dec. 10, 2013) (where claimant was treated with a number of drugs, including Vicodin, Tramadol, Savella, and Ultram, for her fibromyalgia, ALJ erred in rejecting claimant's credibility on the ground that the treatment purportedly was "only largely routine"); Nunn v. Astrue, 2012 WL 442900, at *6 (D. Or. Feb. 9, 2012) (substantial evidence did not support ALJ's finding that fibromyalgia treatment was "conservative, " where claimant was taking Tramadol and Ultram for her pain).
Plaintiff did report that certain of her symptoms sometimes improved as result of treatment. (See, e.g., A.R. 373 (Plaintiff reporting in March of 2011 that Heparin was helping with her fingers); A.R. 638 (reporting in June of 2012 mental clarity had improved and she had a "few good days" "body wise"); A.R. 637 (reporting in July of 2012 that her pain was better)). Overall, however, the medical records reflect complaints of worsening symptoms despite treatment. See, e.g., A.R. 358 (reporting in January of 2011 worsened pain, fatigue, and numbness in fingers); A.R. 372 (reporting in May of 2011 hearing sensitivity, pain, fatigue, numbness and increased need for Vicodin); A.R. 632 (reporting in January of 2012 that she was "miserable" and exhibiting trouble with words); A.R. 639 (exhibiting difficulty completing sentences on examination in April of 2012). Despite years of treatment, notes on testing from July of 2011 indicated Plaintiff's Lyme Disease was active (A.R. 224). The presence of Epstein-Barr antibodies suggested that Plaintiff's chronic fatigue also was active (A.R. 226). The presence of herpes antibodies suggested her herpes and other viruses also were active (A.R. 227).
The ALJ's only other stated reason for rejecting Plaintiff's credibility, i.e., Plaintiff's admitted daily activities, fails to constitute a specific, cogent finding, supported by the record, to uphold the ALJ's blanket rejection of Plaintiff's testimony. Plaintiff testified that she stopped working on February 24, 2011, because her fingers were numb and she could not operate a cash register (A.R. 44). She earlier had taken a disability leave from a job as a bakery manager due to chronic fatigue (A.R. 45). At the administrative hearing on November 8, 2012, Plaintiff said she wakes up extremely achy, like she has the flu, wears her pajamas to drive her daughter two miles to school, then comes home and tries to stay awake but cannot keep her eyes open (A.R. 45-46, 49). She said she has difficulty sleeping, takes sleeping pills, wakes three to four times a night, and rests on the couch all day (A.R. 46). She reportedly has daily headaches (A.R. 50). On days when she feels "okay, " she will cook dinner and straighten the house, but she has to take pain medicine and rest for a few days afterward (A.R. 46, 51). Plaintiff is home alone during the day and microwaves meals already made for her (A.R. 46, 50). She picks up her daughter from school and goes to the pharmacy to get her prescriptions (A.R. 46, 48).
At the time of the hearing, Plaintiff reportedly no longer performed significant household chores: her husband did the dishes, and her husband and daughter did the laundry (A.R. 47). Her husband, who works at a grocery store, brings home what the family needs (A.R. 47). Plaintiff reported no social activities (A.R. 47). Plaintiff said she could use a computer to check email (A.R. 48). In her earlier Function Report form on which the ALJ relied, Plaintiff reported similar daily activities and restrictions, explaining that she had to limit how much she does daily, some days were better than others, and her husband and daughter did the majority of household chores. See A.R. 204-11; see also A.R. 212-19 (Plaintiff's husband also reporting similar activities and limits).
In a Disability Report - Appeal form dated November 28, 2011, Plaintiff reported that she was unable to cook, drive her daughter to school, or do any housework (A.R. 235-42). She said her husband has to make sure she eats and takes her medications, and drive her to appointments, and takes care of things at home (A.R. 235-36). She claimed she could hardly move when she gets up to go to the restroom and has to take Vicodin every four hours for pain (A.R. 235).
Plaintiff said her condition had gotten worse since her consultative examination in October of 2011 (A.R. 54). When asked why an examiner had noted more extensive daily activities such as shopping, cooking, and cleaning, Plaintiff said she could not believe what the doctor reported - she did not know where the doctor came up with his information (A.R. 54).
A claimant does not have to be completely incapacitated to be disabled. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989); see also Vertigan v. Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001) ("Vertigan") ("the mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from her credibility as to her overall disability"); Gallant v. Heckler, 753 F.2d 1450, 1453-55 (9th Cir. 1984) ("Gallant") (fact that claimant could cook for himself and family members as well as wash dishes did not preclude a finding that claimant was disabled due to constant back and leg pain). Here, the record does not suggest that Plaintiff at any time reported that she performed activities which would translate to sustained activity in a work setting on a regular and continuing basis for eight hours a day, five days a week. See SSR 96-8p (defining scope of residual functional capacity).
In Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) ("Burch"), the Ninth Circuit upheld an ALJ's rejection of a claimant's credibility in partial reliance on the claimant's daily activities of cooking, cleaning, shopping, interacting with others and managing her own finances and those of her nephew. In doing so, the Ninth Circuit did not purport to depart from the general rule that an ALJ may consider daily living activities in the credibility analysis only where "a claimant engages in numerous daily activities involving skills that could be transferred to the workplace." Id. at 681. Undeniably, however, it is difficult to reconcile the result in Burch with the results in cases like Vertigan and Gallant. Certainly, "the relevance of a claimant carrying on daily activities should be evaluated on a case-by-case basis." Bloch on Social Security § 3.37 (Jan. 2005). In the present case, in light of the seemingly conflicting Ninth Circuit case law as well as the evidence in the record belying the ALJ's assertion that Plaintiff's daily activities are "somewhat normal, " this Court does not believe Burch compels affirmance.
III. Remand is Appropriate.
Because the circumstances of the case suggest that further administrative review could remedy the ALJ's errors, remand is appropriate. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011); see Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003) ("Connett") (remand is an option where the ALJ fails to state sufficient reasons for rejecting a claimant's excess symptom testimony); but see Orn v. Astrue, 495 F.3d 625, 640 (9th Cir. 2007) (appearing, confusingly, to cite Connett for the proposition that "[w]hen an ALJ's reasons for rejecting the claimant's testimony are legally insufficient and it is clear from the record that the ALJ would be required to determine the claimant disabled if he had credited the claimant's testimony, we remand for a calculation of benefits") (quotations omitted); see also Brown-Hunter v. Colvin, 2015 WL 4620123, at *7 (9th Cir. Aug. 4, 2015) (discussing the evidently narrow circumstances in which a court will order a benefits calculation rather than further proceedings); Ghanim v. Colvin, 763 F.3d 1154 (9th Cir. 2014) (remanding for further proceedings where the ALJ failed to state sufficient reasons for deeming a claimant's testimony not credible); Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) (court may "remand for further proceedings, even though all conditions of the credit-as-true rule are satisfied, [when] an evaluation of the record as a whole creates serious doubt that a claimant is, in fact, disabled"); Vasquez v. Astrue, 572 F.3d 586, 600-01 (9th Cir. 2009) (agreeing that a court need not "credit as true" improperly rejected claimant testimony where there are outstanding issues that must be resolved before a proper disability determination can be made); see generally INS v. Ventura, 537 U.S. 12, 16 (2002) (upon reversal of an administrative determination, the proper course is remand for additional agency investigation or explanation, except in rare circumstances); Treichler v. Commissioner, 775 F.3d 1090, 1101 n.5 (9th Cir. 2014) (remand for further administrative proceedings is the proper remedy "in all but the rarest cases").
There are outstanding issues that must be resolved before a proper disability determination can be made in the present case. For example, it is not clear whether the ALJ would be required to find Plaintiff disabled for the entire claimed period of disability even if Plaintiff's testimony were fully credited. See Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010).
RECOMMENDATION
For all of the foregoing reasons, it is recommended that the Court issue an order: (1) accepting and adopting this Report and Recommendation; (2) directing that Judgment be entered reversing in part the decision of the Commissioner and remanding the matter for further administrative action consistent with this Report and Recommendation.
The Court has not reached any other issue raised by Plaintiff except insofar as to determine that reversal with a directive for the immediate payment of benefits would not be appropriate at this time.
Similarly, in an Exertion Questionnaire dated January 11, 2012, Plaintiff reported that she did not do anything on an average day except take her medications, make her breakfast, eat what her husband has made for her at lunch, and lie down the rest of the day, and that a neighbor then was driving her daughter to school (A.R. 244-49). She said she could not climb stairs (A.R. 245). She said her husband and her daughter take care of all household responsibilities (A.R. 245). Plaintiff reported she has no energy, is in pain, has confusion, disorientation, and memory problems, numbness in her fingers and toes, body aches, hot sweats and cold spells, hand tremors and spasms, dizziness, weakness, fatigue, shortness of breath, headaches, light and noise sensitivity, irritability, depression, "clouded" ears, neck stiffness, and nausea (A.R. 246-48). She claimed that her symptoms had gotten worse from the treatment she started for Lyme Disease (A.R. 246).