Opinion
No. 6:19-cv-00893-HZ
02-10-2021
JENNIFER G., Plaintiff, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
John Haapala 401 E. 10th Avenue, Suite 240 Eugene, OR 97401 Attorney for Plaintiff Renata Gowie Assistant United States Attorney District of Oregon 1000 SW Third Avenue, Suite 600 Portland, OR 97204 Katherine Watson Social Security Administration Office of the General Counsel 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, WA 98104 Attorneys for Defendant
OPINION & ORDER John Haapala
401 E. 10th Avenue, Suite 240
Eugene, OR 97401
Attorney for Plaintiff Renata Gowie
Assistant United States Attorney
District of Oregon
1000 SW Third Avenue, Suite 600
Portland, OR 97204 Katherine Watson
Social Security Administration
Office of the General Counsel
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, WA 98104
Attorneys for Defendant HERNÁNDEZ, District Judge:
Plaintiff Jennifer G. brings this action seeking judicial review of the Commissioner's final decision to deny disability insurance benefits ("DIB") and supplemental security income ("SSI"). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)). The Court reverses the Commissioner's decision and remands this case for further administrative proceedings.
PROCEDURAL BACKGROUND
Plaintiff applied for DIB and SSI on August 19, 2015, alleging an onset date of August 31, 2011. Tr. 90. Plaintiff's date last insured is December 31, 2014. Tr. 90. Her application was denied initially and on reconsideration. Tr. 178-87, 194-99.
Citations to "Tr." refer to the page(s) indicated in the official transcript of the administrative record, filed herein as Docket No. 9.
On January 16, 2018, Plaintiff appeared with counsel for a hearing before an Administrative Law Judge ("ALJ"). Tr. 37. On April 23, 2018, the ALJ found Plaintiff not disabled. Tr. 28. The Appeals Council denied review. Tr. 1.
FACTUAL BACKGROUND
Plaintiff alleges disability based on "[f]ibromyalgia, bulging disc, degenerative disc syndrome, sleep disorder, sciatic nerve, [b]ipolar disorder, anxiety, [and] cervical radiculopathy." Tr. 299. At the time of her alleged onset date, she was 39 years old. Tr. 27. She has a high school education and past relevant work experience as a bar tender, cashier checker, sales clerk, fast food worker, and home attendant. Tr. 26.
SEQUENTIAL DISABILITY EVALUATION
A claimant is disabled if they are unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Disability claims are evaluated according to a five-step procedure. See Valentine v. Comm'r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step procedure to determine disability). The claimant bears the ultimate burden of proving disability. Id.
In the first step, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled. Id.
In step three, the Commissioner determines whether the claimant's impairments, singly or in combination, meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity (RFC) to perform their "past relevant work." 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can perform past relevant work, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(e)-(f), 416.920(e)-(f). If the Commissioner meets their burden and proves that the claimant can perform other work that exists in the national economy, then the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ'S DECISION
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity after her alleged onset date. Tr. 16. Next, at steps two and three, the ALJ determined that Plaintiff has the following severe impairments: "Depression; Degenerative Disc Disease with Arthritis in Cervical and Lumbar Spine; Left Shoulder Calcified Tendon; and Chronic Partial Rotator Cuff Tear." Tr. 16. However, the ALJ determined that Plaintiff's impairments did not meet or medically equal the severity of a listed impairment. Tr. 17. At step four, the ALJ concluded that Plaintiff has the residual functional capacity to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) with the following limitations:
The claimant is limited to lifting and or carrying twenty pounds occasionally and ten pounds frequently. She can stand for a total of four hours in an eight-hour workday. She can walk for a total of four hours and sit for a total of about six hours in an eight-hour workday. She can push and pull the same amount as she can lift and carry. She is limited to no more than occasional balancing, crawling, stooping, crouching and kneeling. She can occasionally climb ramps and stairs. She can never climb ladders, ropes or scaffolding. She can frequently handle, finger and feel with her bilateral upper extremity. She must never reach overhead with her left upper extremity. She can tolerate no more than occasional extreme heat and extreme cold. She can tolerate no more than occasional wetness and / or humidity. She must avoid all hazards such as machinery and unprotected heights. Due to her mental impairments, she can understand, remember and carry out only short and simple instructions. She can only make simple work-related judgments and decisions. She
can have no more than occasional interactive conduct with the public. She can have no more than frequent interactive conduct with co-workers or supervisors.Tr. 20. Because of these limitations, the ALJ concluded that Plaintiff could not perform her past relevant work. Tr. 26. But at step five, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, such as "Product Assembler," "Laundry Sorter," and "Hand Packager." Tr. 27-28. Thus, the ALJ concluded that Plaintiff is not disabled. Tr. 28.
STANDARD OF REVIEW
A court may set aside the Commissioner's denial of benefits only when the Commissioner's findings "are based on legal error or are not supported by substantial evidence in the record as a whole." Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (internal quotation marks omitted). The court considers the record as a whole, including both the evidence that supports and detracts from the Commissioner's decision. Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). "Where the evidence is susceptible to more than one rational interpretation, the ALJ's decision must be affirmed." Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) ("Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's") (internal quotation marks omitted).
DISCUSSION
Plaintiff argues that the ALJ erred by: (1) rejecting Plaintiff's subjective symptom testimony; (2) rejecting the opinion of the medical expert at the hearing, Dr. Ervin Belzer, M.D.; and (3) rejecting the opinion of treating physician, Dr. Mary Gabriele, M.D. Pl. Br. 9, ECF 13. The Court agrees.
I. Subjective Symptom Testimony
Plaintiff first argues that the ALJ erred in rejecting her subjective symptom testimony. The ALJ is responsible for evaluating symptom testimony. SSR 16-3p, 2017 WL 5180304, at *1 (Oct. 25, 2017). Once a claimant shows an underlying impairment and a causal relationship between the impairment and some level of symptoms, clear and convincing reasons are needed to reject a claimant's testimony if there is no evidence of malingering. Carmickle v. Comm'r, 533 F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative evidence that the plaintiff is malingering, "where the record includes objective medical evidence establishing that the claimant suffers from an impairment that could reasonably produce the symptoms of which he complains, an adverse credibility finding must be based on clear and convincing reasons") (quotation marks and citation omitted); see also Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (the ALJ engages in a two-step analysis for subjective symptom evaluation: First, the ALJ determines whether there is "objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged"; and second, "if the claimant has presented such evidence, and there is no evidence of malingering, then the ALJ must give specific, clear and convincing reasons in order to reject the claimant's testimony about the severity of the symptoms.") (quotation marks and citations omitted).
When evaluating subjective symptom testimony, "[g]eneral findings are insufficient." Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). "An ALJ does not provide specific, clear, and convincing reasons for rejecting a claimant's testimony by simply reciting the medical evidence in support of his or her residual functional capacity determination." Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015). Instead, "the ALJ must specifically identify the testimony she or he finds not to be credible and must explain what evidence undermines the testimony." Holohan v. Massanari, 246 F.3d 1195 (9th Cir. 2001); see also Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (The reasons proffered must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discount the claimant's testimony.").
Plaintiff has both mental and physical impairments. She testified that her anxiety causes panic attacks and has been getting worse with time. Tr. 43, 45. Her bipolar disorder can lead to depression, and she cannot get out of bed "half of the time." Tr. 43. Physically, she suffers from chronic low back, cervical spine, and shoulder pain. Tr. 46, 331. Her arms go numb, and it is painful to use her left arm and reach overhead. Tr. 46. Her chronic pain keeps her awake at night. Tr. 50, 332. Plaintiff can only walk one city block for ten minutes without a break. Tr. 336. She was prescribed a cane, which she uses to walk in the winter months when her pain is at its worst. Tr. 337.
At the time of the hearing, Plaintiff lived with her spouse, father, nephew, and older stepbrother. Tr. 44. She does not care for anyone; rather, her family members "caregive for [her]." Tr. 44. Plaintiff begins a typical day by taking her husband to work. Tr. 332. She then returns home, takes her pain medication, and lays down because her medications have a sedating effect. Tr. 332. She sleeps most of the day. Tr. 332. Plaintiff wakes up to pick her husband up from work and make dinner. Tr. 332. She then returns to bed, takes her "night meds," and starts the process all over again the next day. Tr. 332.
Plaintiff's activities of daily living are limited because of her impairments. She can prepare simple meals like sandwiches, cereal, fruit, and veggies. Tr. 333. Dinners take her twenty minutes to an hour, but she only makes dinner half the time. Tr. 333. She can do laundry, but it takes her all weekend to do two or three loads. Tr. 334. She does the dishes "1/3 of the time," and it takes her an hour. Tr. 334. She needs reminders to do these things, and her chronic pain worsens if she does other chores. Tr. 334. Her family members help with laundry and keeping the house clean. Tr. 44.
She has difficulty getting dressed, washing her hair, and shaving. Tr. 49, 333. Plaintiff can shop for groceries, but she has to go late at night or early in the morning when there are fewer people in the store. Tr. 334. She tries to shop only once a month for an hour or less. Tr. 334. Otherwise, it exacerbates her anxiety. Tr. 334. Her family members will also finish the grocery shopping if she has a panic attack and leaves the store. Tr. 44. Plaintiff's hobbies are reading and music. Tr. 335. While she can listen to music all day, reading is more difficult because she struggles with concentration. Tr. 335. She will forget to "do stuff," like pay bills. Tr. 335. She also has difficulty following spoken instructions and finishing what she started. Tr. 336. Plaintiff's anxiety causes her to anger easily. Tr. 331, 336. She used to be a "social butterfly," but Plaintiff no longer likes to spend time with others. Tr. 335-36. The only places she goes regularly are medical appointments and therapy. Tr. 335.
The ALJ gave three reasons for rejecting Plaintiff's subjective symptom testimony. First, the ALJ concluded that the severity of Plaintiff's symptoms regarding both her mental and physical impairments were not supported by the objective evidence. Tr. 22. Second, the ALJ found that Plaintiff's psychiatric treatment has been conservative. Tr. 22. Third, the ALJ determined that Plaintiff's activities of daily living undermine Plaintiff's symptom testimony. Tr. 26. Because these reasons are not clear, convincing, or supported by substantial evidence, the ALJ erred.
A. Activities of Daily Living
Contradiction with a claimant's activities of daily living is a clear and convincing reason for rejecting a claimant's testimony. Tommasetti, 533 F.3d at 1039. There are two grounds for using daily activities to form the basis of an adverse credibility determination: (1) when activities meet the threshold for transferable work skills and (2) when activities contradict a claimant's other testimony. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). However, "disability claimants should not be penalized for attempting to lead normal lives in the face of their limitations," Reddick, 157 F.3d at 722, and "the mere fact that a plaintiff has carried on with certain daily activities, such as grocery shopping . . . does not in any way detract from his credibility," Webb v. Barnhart, 433 F.3d 683, 688 (9th Cir. 2005) (citing Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir.2001)). In order to impact a claimant's credibility, the activity has to be "inconsistent with claimant's claimed limitations." Reddick, 157 F.3d at 722. The ALJ cannot mischaracterize statements and documents in the record or take these out of context in order to reach his conclusion on the claimant's credibility. Id. at 722-23.
The ALJ found that Plaintiff's activities of daily living "undermine [Plaintiff's] assertion of debilitating symptoms that preclude basic work activity." Tr. 26. Specifically, the ALJ stated that Plaintiff was the primary caregiver for her dying mother, noting that "arguably, providing hospice care is challenging, both physically and mentally." Tr. 26. In addition. The ALJ noted that Plaintiff cared for her sixteen-year-old niece and thirteen-year-old nephew, "a demanding mental and physical task." Tr. 26. Finally, the ALJ cited various daily tasks that Plaintiff can engage in, including grocery shopping, driving, caring for her basic needs, preparing meals, doing laundry and dishes, paying bills, and working out at the gym. Tr. 26.
The ALJ's conclusions as to Plaintiff's caregiving responsibilities are not clear or convincing. In support of his assertion that Plaintiff had the capacity to provide hospice care to her mother, the ALJ cites to a single record that states Plaintiff's "symptoms have worsened recently in the context of being the primary caregiver for her dying mother[.]" Tr. 600. But elsewhere in the record, Plaintiff repeatedly noted limitations in her ability to care for her mother. For example, in May 2012, Plaintiff reported she was previously caring for her mother but could no longer do so because her arms gave out. Tr. 641; see also tr. 561 (previously caregiver for bedridden mother before neck issues; willing to provide companionship but cannot do any lifting). But see tr. 470 (helping care for her mother). Similarly, the ALJ asserts—without any support—that Plaintiff has been able to care for her teenage niece and nephew, a "demanding mental and physical task." Tr. 26. Again, however, the record provides little support for this statement, and Plaintiff reported to providers that she struggled to handle the mental and physical demands of this caretaking role. Tr. 553 (notes less anxious with teenage niece moving out); 554 (niece and nephew living with them again; insists need to be brief). But see tr. 573, 577 (notes increased responsibilities as temporary caregiver for niece). And there is little to no information in the record about what exactly Plaintiff's caretaking activities were with regard to her mother, niece, and nephew. See Trevizio v. Berryhill, 871 F.3d 664, 682 (9th Cir. 2017) ("[T]here is almost no information in the record about [the plaintiff's] childcare activities; the mere fact that she cares for small children does not constitute an adequately specific conflict with her reported limitations.").
Similarly, the ALJ's conclusions as to Plaintiff's activities of daily living are not supported by substantial evidence. Plaintiff testified and wrote in her function report that her ability to engage in these activities of daily living is much more limited than the ALJ suggests. For example, Plaintiff wrote that she tries to grocery shop only once a month for an hour or less, and she has to go late at night or early in the morning when fewer people are in the store. Tr. 334. Sometimes, her family members have to finish the shopping if she has a panic attack. Tr. 44. Plaintiff also reported difficulty with this task to her medical providers. Tr. 554 (reporting to provider that she had to abandon cart and run from the store while grocery shopping), 561 (has had to leave stores on several occasions because overwhelmed by anxiety). Her physical pain limits her ability to care for her basic needs, like showering, doing her hair, and shaving. Tr. 49, 333. Plaintiff is also limited in her ability to prepare meals, do laundry and dishes, and pay bills. Tr. 333-35. She can only prepare simple meals, does the dishes "one third of the time," and laundry takes her all weekend to do a few loads. Tr. 333-34. She forgets to "do stuff," like pay bills. Tr. 335. Indeed, she wrote in her function report and testified at the hearing that her family members help her with these tasks. Tr. 44, 334-35. And, most importantly, none of these limited tasks are inconsistent with Plaintiff's testimony that she suffers from panic attacks, has difficulty getting out of bed, spends most of the day laying down, experiences numbness and pain in her arms, and has limitations in her ability to walk.
The ALJ accurately notes that Plaintiff joined a gym in 2016. See tr. 1092. But the details of her gym use are unclear from the record. For example, she reported "stretching more" to her treating provider when she first joined. Tr. 960. At times, she noted limitations in her ability to exercise. Tr. 1107 (left after 20 minutes, notes depression and pain), 49-50 (testifying that she walked short distances to lose weight and is unable to ride a bike or lift in a gym). Plaintiff, however, also reported to providers that she normally works out for about an hour. Tr. 1107; see also tr. 1103 (reports working out a gym), 426 (tries to exercise, walking 15-20 minutes twice a week). In light of this ambiguity, this alone is not a sufficiently clear or convincing reason to discount all of Plaintiff's symptom testimony. Accordingly, the ALJ erred in finding that Plaintiff's activities of daily living undermine her subjective symptom testimony.
B. Conservative Psychiatric Treatment
The Ninth Circuit has "long held that, in assessing a claimant's credibility, the ALJ may properly rely on 'unexplained or inadequately explained failure to seek treatment or follow a prescribed course of treatment,'" Molina, 674 F.3d at 1113 (quoting Tomasetti, 533 F.3d at 1039), as well as evidence of conservative treatment, see Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) ("[E]vidence of 'conservative treatment' is sufficient to discount a claimant's testimony regarding severity of an impairment."). But, in the mental health context, continuous care under a mental health professional and the prescription of psychotropic medications do not constitute "conservative treatment." Overton v. Berryhill, No. 17CV25-BEN (BLM), 2017 WL 5159550, at *18 (S.D. Cal. Nov. 6, 2017). And the Ninth Circuit has cautioned that individuals with mental health impairments should not be penalized for exercising "'poor judgment in seeking rehabilitation.'" See Regennitter v. Comm'r Soc. Sec. Admin., 166 F.3d 1294, 1299-1300 (9th Cir.1999) (quoting Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996)).
In this case, ALJ's conclusion that "the claimant's [psychiatric] treatment has been conservative and there have not been any psychiatric hospitalization[s]" is neither a clear nor a convincing reason for rejecting Plaintiff's symptom testimony. See Tr. 22. Plaintiff sought regular mental health treatment—including therapy with a counselor and medication management with a psychiatrist—throughout the relevant period. See, e.g., tr. 634 (2013 therapy appointment), 554 (2013 medication management appointment), 1222 (2017 therapy appointment). In addition, Plaintiff tried multiple psychiatric medications but continued to experience symptoms of depression and anxiety. See, e.g., tr. 554, 561, 577, 608, 1096, 1107, 1127-28, 1175, 1184, 1191, 1206, 1222 (appointments noting continued symptoms of depression and anxiety). Plaintiff's counselor also noted in a 2015 chart note that "[w]ithout counseling, client's symptoms are likely to worsen, placing her at risk for psychiatric hospitalization." Tr. 602. Moreover, a lack of psychiatric hospitalization does not mean that Plaintiff's treatment was conservative or that her psychiatric symptoms were not debilitating. Gia M. P. v. Comm'r, Soc. Sec. Admin., No. 6:17-cv-01825-MA, 2018 WL 4031606, at *6 (D. Or. Aug. 23, 2018) ("As other courts have recognized, a claimant does not have to undergo inpatient hospitalization to be disabled." (quotation marks and brackets omitted)). Accordingly, the ALJ erred in this finding.
C. Objective Medical Evidence
The ALJ is instructed to consider objective evidence in considering a claimant's symptom allegations. 20 C.F.R. § 416.929(c)(2) ("Objective medical evidence . . . is a useful indicator to assist us in making reasonable conclusions about the intensity and persistence of your symptoms[.]"). Inconsistency between Plaintiff's testimony and the objective medical record is a valid reason to discount Plaintiff's testimony. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (affirming the ALJ's credibility finding when the plaintiff's testimony of weight fluctuation was inconsistent with the medical record). And in some cases, the ALJ can discount claimant testimony when that testimony is not supported by the objective medical record. See Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2007) ("'Graphic and expansive' pain symptoms could not be explained on objective, physical basis by claimant's treating physician."); Burch, 400 F.3d at 681 (The ALJ could consider mild findings on MRIs and X-rays in discounting the plaintiff's testimony as to her back pain.). But this may not be the ALJ's sole reason for discounting a claimant's testimony: "the Commissioner may not discredit the claimant's testimony as to the severity of symptoms merely because they are unsupported by objective medical evidence." Reddick, 157 F.3d at 722.
The ALJ found that "[t]here is no objective support for the degree of mental and physical functional loss[] the claimant alleges." Tr. 22. Specifically, the ALJ cited Plaintiff's mild imaging of her lumbar spine and shoulder and normal mental status examinations. Tr. 22. The ALJ also noted that Plaintiff's lumbar disc degeneration was "stable." Tr. 22.
These reasons are neither clear nor convincing. A lack of support from the objective medical evidence is the sole remaining reason the ALJ provided for discounting Plaintiff's testimony. But this alone cannot serve as the basis for discounting Plaintiff's subjective symptom testimony. See Reddick, 157 F.3d at 722. In addition, "normal" mental status exams do not contradict Plaintiff's testimony as to her symptoms of anxiety and depression. See Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) (noting that "observations of cognitive functioning during therapy sessions [did] not contradict [the plaintiff's] reported symptoms of depression and social anxiety"). And, as this Court has previously held, the stability of a condition does not undermine a plaintiff's allegations as to the intensity, persistence, or limiting effects of the symptoms of a condition. See, e.g., Timothy S. v. Comm'r, Soc. Sec. Admin., No. 6:17-CV-02043-HZ, 2019 WL 2006689, at *5 (D. Or. May 3, 2019) ("[T]he stability of Plaintiff's symptoms does not indicate that the pain is resolved, only that it is not getting worse."). Accordingly, the Court finds that the ALJ erred in rejecting Plaintiff's subjective symptom testimony.
The Court declines to address Plaintiff's argument that the ALJ erred in his consideration of fibromyalgia. Plaintiff writes at length about the ALJ's decision to reject Plaintiff's fibromyalgia diagnosis despite some evidence of such a diagnosis in the record. Pl. Br. 13. But Plaintiff does not make any argument that the ALJ erred at Step Two of the sequential analysis. Rather, Plaintiff makes this argument in challenging the ALJ's credibility finding. First, in regard to the ALJ's finding that Plaintiff's conditions are not supported by objective medical evidence, Plaintiff explains "[w]hen considered through the lens of fibromyalgia, Plaintiff's pain complaints do not appear disproportionate to the diagnostic images." Id. at 14. But the Court has already concluded that the ALJ erred in finding that Plaintiff's testimony was not supported by the objective medical evidence. Second, Plaintiff argues that the ALJ failed to consider co-concurring conditions that Plaintiff experienced as a result of her fibromyalgia diagnosis. Id. at 15. But Plaintiff cites no support for this argument.
II. Medical Opinion Evidence
Plaintiff challenges the ALJ's rejection of the medical opinion evidence. There are three types of medical opinions in social security cases: those from treating, examining, and non-examining doctors. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). If no conflict arises between medical source opinions, the ALJ generally must accord greater weight to the opinion of an examining physician over that of a reviewing physician, id., and more weight is given to an examining physician than to a nonexamining physician, see Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). If a treating or examining physician's opinion is not contradicted by another physician, the ALJ may reject it only for clear and convincing reasons. Id.; Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006). Even if one physician is contradicted by another physician, the ALJ may not reject the opinion without providing specific and legitimate reasons supported by substantial evidence in the record. Orn, 495 F.3d at 632; Widmark, 454 F.3d at 1066. And "[t]he Commissioner may reject the opinion of a non-examining physician by reference to specific evidence in the medical record." Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998). Here, the specific and legitimate standard applies.
The opinions of Dr. Gabriele and Dr. Belzer conflict with those of the state agency physicians. See tr. 103, 104; Widmark, 454 F.3d 1066-67.
Plaintiff argues that the ALJ erred in rejecting the medical opinion evidence from examining physician Ervin Belzer, M.D., and treating physician Mary Gabriele, M.D. The Court addresses each in turn. /// ///
A. Opinion of Medical Expert Ervin Belzer, M.D.
Dr. Belzer is a medical expert who testified at Plaintiff's hearing. Before testifying, Dr. Belzer reviewed Plaintiff's medical record. Tr. 52. Dr. Belzer identified six impairments, including a history of sleep apnea, pelvic pain, "arthritis and/or disc problems involving the cervical spine," mild lumbar disc disease, calcific tendinosis in the left shoulder, and a left partial rotator cuff tear. Tr. 52-57. He identified both the sleep apnea and pelvic pain as "mild or non-severe." Tr. 53. He also testified that Plaintiff's diagnosis of fibromyalgia was probably "being used to just to describe diffuse pain as opposed to the true fibromyalgia" based on the lack of a trigger point evaluation and no correlation with chronic fatigue in the record. Tr. 58.
Dr. Belzer opined as to Plaintiff's residual functional capacity. He testified that Plaintiff can lift up to twenty pounds occasionally and carry ten pounds frequently. Tr. 58. She can sit for up to six hours in an eight-hour day with a short stretch break every two hours. Tr. 58. She can stand or walk up to four hours in an eight-hour day, but for no more than one hour at a time. Tr. 58. He opined that she has various reaching, pushing, and pulling limitations. She could "rarely" reach overhead with her left arm and could occasionally reach at waist level in all directions with both arms. Tr. 58-59. She can also push or pull with the left arm less than occasionally but more than never. Tr. 59. Finally, Dr. Belzer opined that Plaintiff can occasionally handle, finger, and feel with both arms and use foot controls. Tr. 59.
The ALJ gave partial weight to the testimony of Dr. Belzer. Tr. 24. The ALJ rejected Dr. Belzer's foot control limitations because Plaintiff testified at the hearing that most of her feet issues resolved with her weight loss. Tr. 24. The ALJ also rejected Dr. Belzer's assessment that Plaintiff was capable of "occasional handling, fingering, and feeling with both arms," finding instead that Plaintiff is able to do so frequently based on her imaging results in the record, "which showed no abnormality," full range of motion during physical examination, and improvement in pain after physical therapy. Tr. 24.
The ALJ erred in his rejection of Dr. Belzer's assessment of Plaintiffs handling, fingering, and feeling limitations, all of which Dr. Belzer attributed to Plaintiff's "problems" with her left shoulder and cervical spine. As a preliminary matter, it appears that the ALJ has erroneously "succumb[ed] to the temptation to play doctor and [made] his own independent medical findings" in concluding the MRI of Plaintiff's cervical spine showed no abnormality. Banks v. Barnhart, 434 F. Supp. 2d 800, 805 (C.D. Cal. 2006) ("An ALJ cannot arbitrarily substitute his own judgment for competent medical opinion."). Specifically, the ALJ interpreted as "normal" a pre-operative MRI of Plaintiff's cervical spine showing "small protrusions minimally indenting the otherwise capacious dural sac at C3-C4 and C6-C7." Tr. 418. However, her treating orthopedic surgeon interpreted the MRI as "demonstrat[ing] single level disc disease at C6-7," including "a central disc extrusion causing some canal stenosis at C6-7" and "bilateral foraminal narrowing worse on the right." Tr. 388. The doctor recognized that Plaintiff's stenosis "might not be severe" radiographically, but also found that she suspected it worsens with movement and noted "obvious weakness" on physical exam. Tr. 389. Based on Plaintiff's symptoms and imaging, the doctor recommended surgery. Tr. 389.
Plaintiff does not appear to argue that the ALJ erred in rejecting Dr. Belzer's foot control limitation. Accordingly, the Court will not address this finding.
Furthermore, this MRI was taken before Plaintiff's surgery. As Dr. Belzer notes, four months after surgery Plaintiff reported continuing neck pain attributable to "post laminectomy syndrome," which indicates that the surgery was not successful in relieving Plaintiff's pain. Tr. 55. More than a year later, Plaintiff had weakness in her arms. Tr. 55 (citing tr. 391). She also reported numbness in her arms that caused her to drop things, and worsening pain, stiffness, and weakness. Tr. 870, 381-92, 466.
The ALJ's findings with regard to Plaintiff's shoulder suffer from the same problem. The ALJ appears to reject limitations related to her shoulder because of Plaintiff's "improvement" after physical therapy and a single examination in September 2015 that showed "full range of motion" in her shoulder. Tr. 24 (citing tr. 673). This single record does not cast doubt on Dr. Belzer's finding that Plaintiff's shoulder impairment—which is supported by objective medical evidence—limits her ability to use her left arm and lift objects due to pain. An X-ray of her left shoulder in 2016 showed calcification of the tendons. Tr. 57 (citing tr. 1033). An ultrasound from around the same time also showed a partial rotator cuff tear. Tr. 57 (citing tr. 1032). And Plaintiff consistently reported pain and discomfort with movement of her left shoulder. See tr. 979 (left shoulder painful and difficult to move; decreased range of motion), 1040 (pain in left shoulder with most activities, worse when reaching overhead); 1036 (pain in left shoulder continues after injection; discomfort when lifting objects; limitations with ADL's due to shoulder).
Similarly, the ALJ's conclusion that Plaintiff's shoulder pain improved with physical therapy is not supported by the record. Rather than demonstrate "improvement" in Plaintiff's condition, records from Plaintiff's providers show that physical therapy did not improve her pain and may have exacerbated it. Tr. 999 (treating provider note from September 2017 that PT "only increased her pain and did not help with symptoms."), 1036 (September 2017 chart note reflecting pain and limitations in shoulder; unable to perform PT), 1040 (July 2017 note that "[s]he has been to PT, but feels that her shoulder has actually worsened from PT"). Notes from physical therapy similarly fail to show improvement in Plaintiff's condition. See tr. 1062-63, 1203, 1211. In sum, the ALJ misread the medical record and substituted his own opinion for that of Plaintiff's physicians in rejecting the opinion of Dr. Belzer. Thus, the ALJ's rejection of Dr. Belzer's manipulative limitations is neither specific nor legitimate.
Indeed, the specific record cited by the ALJ in support of this finding is a laboratory report from October 20, 2017.
The Commissioner also points out "additional" support for the ALJ's findings by identifying imaging of Plaintiff's lumbar spine, which show only "mild degenerative changes." Def. Br. 11. However, these records are not relevant to Dr. Belzer's finding regarding Plaintiff's limitations in fingering, handling, and feeling, which he specifically attributed to Plaintiff's cervical spine and left shoulder impairments. Tr. 60.
B. Opinion of Treating Physician Mary Gabriele, M.D.
Dr. Gabriele has been Plaintiff's primary care provider since 2009 and sees her approximately every three months. Tr. 825. She provided a letter and completed a Medical Evaluation Questionnaire on December 27, 2015, in support of Plaintiff's disability claim. In her letter, Dr. Gabriele wrote that Plaintiff has had a "serious and severe impairment which has not alleviated over the last approximately 6 years that she has been under my care." Tr. 825. Despite experiencing some pain relief after cervical fusion surgery in 2012, she has continued to experience numbness, weakness, and pain down her left arm. Tr. 825. According to Dr. Gabriele, Plaintiff has "pain and tenderness about her entire spine on exam" and decreased range of motion in her spine and shoulder. Tr. 825. Plaintiff has reported to Dr. Gabriele that she is too weak at times to perform household activities. Tr. 825. Increased activity also causes her pain and fibromyalgia to flare, and physical therapy did not alleviate her discomfort. Tr. 825. Side effects from medication used to control her pain include drowsiness. Tr. 825. She also takes medication for her bipolar disorder. Tr. 825. Dr. Gabriele opined that "it is unlikely that [Plaintiff] could keep or hold any type of job as her incapacities, physical pain and emotional instability do not allow for any constancy in her daily activities. Often, she needs to lie down and change positions." Tr. 826.
In her Questionnaire, Dr. Gabriele provided more detail as to Plaintiff's diagnoses and limitations. Tr. 827. Plaintiff suffers from bipolar disease, degenerative disc disease, bulging discs in her lumbar and thoracic spine, pelvic pain, cervical radiculopathy, left shoulder bursitis, and fibromyalgia. Tr. 827. Plaintiff's symptoms include fatigue; chronic low, mid, and upper back pain that is worse with activity; widespread pain due to her fibromyalgia; and left arm and hand numbness. Tr. 828. Clinical signs of her conditions include decreased range of motion in her neck, lower back, and left arm and shoulder. Tr. 828. Plaintiff's spine and bursa of shoulder are also tender on exam. Tr. 828. Plaintiff must lie down for a few hours during the day, either because of the sedating effects of her medication or due to increased physical activity. Tr. 828. Dr. Gabriele opined that plaintiff could walk one city block, sit for thirty minutes at a time up to two hours in an eight-hour workday, and stand and walk for thirty minutes at a time up to two hours in an eight-hour workday. Tr. 829. Dr. Gabriele also opined that Plaintiff would need a job that allowed her to change positions at will and take one-to-two-hour unscheduled breaks every few hours. Tr. 829-30. Plaintiff can lift ten pounds or less occasionally but never more than that. Tr. 830. She also has limitations in repetitive reaching, handling, and fingering, and would need to elevate her legs during an eight-hour work period. Tr. 830. In response to the final question of the Questionnaire, she then indicated that Plaintiff's impairments would "never" be sufficiently severe that she would be unable to maintain a regular work schedule. Tr. 831.
The ALJ gave great weight to only part of Dr. Gabriele's assessment. Tr. 23. Specifically, the ALJ assigned great weight to Dr. Gabriele's assessment that Plaintiff's impairments would "never be sufficiently severe enough that she would be unable to maintain a regular work schedule." Tr. 23. The ALJ gave little weight to Dr. Gabriele's physical assessment that Plaintiff's conditions "warrant reducing [Plaintiff] to sedentary level work, with time-off task for the claimant to lie down for several hours and change positions every thirty minutes." Tr. 23. In doing so, the ALJ found that Dr. Gabriele's assessment is "inconsistent with the claimant's normal mental status examination and normal lumbar spine magnetic resonance imaging." Tr. 23. He also noted that: (1) "Dr. Gabriele noted only mild degenerative changes on the claimant's lumbar imaging and noted the claimant's chronic pain syndrome as stable"; (2) Plaintiff's "most recent treating physician deemed claimant's lumbar region intervertebral disc degeneration stable as of September 2017"; and (3) Plaintiff's pain improved with physical therapy. Tr. 23.
The ALJ erred in giving only part of Dr. Gabriele's assessment great weight. First, as described above, the ALJ erred in finding that Plaintiff's pain improved with physical therapy. See supra Part II(A). Indeed, the record shows that physical therapy did not improve her symptoms and may have exacerbated her pain. Id.; see also tr. 825 (letter from Dr. Gabriele noting that Plaintiff "failed physical therapy as it caused her more pain and did not alleviate her discomfort").
Second, the stability of Plaintiff's chronic pain and spinal degeneration is not a specific or legitimate reason for rejecting the opinion of Plaintiff's treating provider. As described earlier in this Opinion, the stability of a condition does not undermine a physician's opinion as to the severity or limiting effects of that condition. See, e.g., Timothy S. v. Comm'r, Soc. Sec. Admin., No. 6:17-CV-02043-HZ, 2019 WL 2006689, at *5 (D. Or. May 3, 2019) ("[T]he stability of Plaintiff's symptoms does not indicate that the pain is resolved, only that it is not getting worse."); Kirk M. v. Comm'r, Soc. Sec. Admin., No. 6:17-cv-01663-HZ, 2018 WL 6651525, at *4 (D. Or. Dec. 19, 2018) (finding that a plaintiff's stable glaucoma did not mean the plaintiff was no longer visually impaired); Kimberly S. v. Comm'r, Soc. Sec. Admin., No. 3:17-cv-01956-HZ, 2018 WL 6198275, at *6 (D. Or. Nov. 28, 2018) (finding that a plaintiff's stable mood was unrelated to the opinion of a nurse practitioner that the plaintiff had marked limitations).
Third, the ALJ erred in discounting Dr. Gabriele's opinion because of Plaintiff's "normal mental status examination and normal lumbar spine magnetic resonance imaging." Tr. 23. The imaging of Plaintiff's lumbar spine was not "normal." Rather, as the ALJ acknowledges in the very next sentence, MRIs and X-rays of Plaintiff's lumbar spine revealed mild disc disease. Tr. 402, 458, 428. Physicians attributed her low back pain and leg symptoms to her degenerative disc disease. Tr. 409 (experiencing discogenic back pain from L5-S1), 427 (findings of right leg sciatica with L5-S1 disc disease and lumbosacral neuritis). They also noted other objective signs of this pain. Tr. 870-71 (patient appears uncomfortable; prescribes cane to assist with walking; objective signs are positive for pain), 398 (unable to toe-heel walk; antalgic gait; pain with motion; decreased sensation in leg), 465 (tenderness to light touch of low back). In addition, Dr. Gabriele does not attribute the limitations identified in the ALJ's analysis—namely Plaintiff's limitation to sedentary level work, including the need to lie down for several hours and change positions every thirty minutes—to a specific impairment. Indeed, these limitations may reasonably be attributed to the side effects of her pain medications and the other impairments identified by Dr. Gabriele, including a bulging disc in her thoracic spine, cervical radiculopathy, and fibromyalgia. Tr. 827-28. Accordingly, the ALJ erred in rejecting the opinion of Dr. Gabriele regarding Plaintiff's physical limitations because it was inconsistent with Plaintiff's "normal" mental status exams and lumbar spine imaging.
Finally, Plaintiff takes issue with the ALJ giving great weight to Dr. Gabriele's opinion that Plaintiff would "never" be unable to maintain a regular work schedule due to her impairments. Tr. 831. Plaintiff argues that this was an "obvious typographical error" because it conflicts with other findings in her opinion, including a statement that it is "unlikely that [Plaintiff] could keep or hold any type of job as her incapacities, physical pain and emotional instability do not allow for any constancy in her daily activities." Id. But Plaintiff leaves out the next sentence of the letter, which reads "[o]ften, she needs to lie down and change position." Tr. 826. And the other limitations referenced by Plaintiff pertain to Plaintiff's ability to sit, stand, walk, carry, lift, reach, handle, and finger. Tr. 827-31. These limitations are not necessarily inconsistent with Plaintiff's ability to maintain a regular work schedule. Accordingly, the Court declines to find that this statement was a typographical error or misstatement such that the ALJ erred in giving this part of Dr. Gabriele's opinion great weight.
III. Remand
Plaintiff asks the Court to credit the above-described testimony as true and remand this case for payment of benefits. Pl. Br. 18 To determine which type of remand is appropriate, the Ninth Circuit uses a three-part test. Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014); Treichler v. Comm'r Soc. Sec. Admin., 775 F.3d 1090, 1100 (9th Cir. 2014). First, the ALJ must fail to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion. Garrison, 759 F.3d at 1020. Second, the record must be fully developed, and further administrative proceedings would serve no useful purpose. Id. Third, if the Court remands the case and credits the improperly discredited evidence as true, the ALJ would be required to find the claimant disabled. Id. To remand for an award of benefits, each part must be satisfied. Id. The "ordinary remand rule" is "the proper course," except in rare circumstances. Treichler, 775 F.3d at 1101.
While a close call, the Court finds that the ordinary remand rule is the proper course in this case. Plaintiff argues that when crediting as true Dr. Belzer's opinion that Plaintiff was limited to "occasionally" fingering, handling, and feeling, Plaintiff is disabled. Pl. Br. 18. The record, however, is not quite so unambiguous on this point. At the hearing, the attorney asked the Vocational Expert ("VE") a hypothetical that included all the limitations the ALJ described but changed the manipulative limitations from "frequent" to "occasional bilateral handling, fingering, and feeling." Tr. 68. In response, the VE testified that such a limitation would "rule out the jobs that [he] otherwise identified." Tr. 68. The VE went on to elaborate that he did not "know that it would necessarily preclude the labor market entirely" but it would "significantly erode the number of jobs that might be available." Tr. 68. Without more, the Court cannot conclude that this vague testimony compels a finding of disability. Plaintiff also generally alleges that when crediting Plaintiff's testimony and Dr. Gabriele's opinion as true a remand for benefits is warranted. Pl. Br. 18. But Plaintiff does not identify any statement by Plaintiff or Dr. Gabriele that—in conjunction with the testimony of the VE—would compel such a conclusion. Accordingly, the Court remands this case for further administrative proceedings.
CONCLUSION
Based on the foregoing, the Commissioner's decision is REVERSED and REMANDED for further administrative proceedings.
IT IS SO ORDERED.
DATED: February 10, 2021.
/s/_________
MARCO A. HERNÁNDEZ
United States District Judge