Gallmeyer v. Commissioner of Social Security

[3] 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA [6] REANNA G., Case No. 3:22-cv-05856-TLF 7 Plaintiff, v. ORDER REVERSING AND 8 REMANDING DEFENDANT’S ACTING COMMISSIONER OF SOCIAL DECISION TO DENY BENEFITS 9 SECURITY, 10 Defendant. [11] 12 Plaintiff filed this action pursuant to 42 U.S.C. § 405 (g) for judicial review of 13 defendant’s denial of plaintiff’s application (filed April 16, 2020) for disability insurance 14 benefits (“DIB”). AR 15, 183. Pursuant to 28 U.S.C. § 636 (c), Federal Rule of Civil 15 Procedure 73, and Local Rule MJR 13, the parties have consented to have this matter 16 heard by the undersigned Magistrate Judge. Dkt. 3. Plaintiff challenges the ALJ’s 17 decision finding that plaintiff was not disabled. Dkt. 1, Complaint. 18 Pursuant to 42 U.S.C. § 405 (g), this Court may set aside the Commissioner's 19 denial of Social Security benefits if the ALJ's findings are based on legal error or not 20 supported by substantial evidence in the record as a whole. Revels v. Berryhill, 874 21 F.3d 648, 654 (9th Cir. 2017) (internal citations omitted). Substantial evidence is “‘such 22 relevant evidence as a reasonable mind might accept as adequate to support a 23 conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations 24 omitted). The Court must consider the administrative record as a whole. Garrison v. 1 Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). The Court also must weigh both the 2 evidence that supports and evidence that does not support the ALJ’s conclusion. Id. 3 The Court may not affirm the decision of the ALJ for a reason upon which the ALJ did 4 not rely. Id. Rather, only the reasons identified by the ALJ are considered in the scope 5 of the Court’s review. Id. 6 Plaintiff asserted that her date of disability onset was March 20, 2020. AR 15. 7 Plaintiff’s date last insured under the DIB insured status requirements was December 8 31, 2020. AR 16. The ALJ found plaintiff had the following severe impairments: 9 “polyarticular psoriatic arthritis, fibromyalgia, and generalized anxiety disorder.” AR 17. 10 For plaintiff’s RFC, the ALJ determined plaintiff would be capable of: “light work”, see 20 11 CFR 404.1567(b), with certain modifications. AR 27. “[Plaintiff] was able to perform work 12 that does not require climbing ladders, ropes, or scaffolds. [Plaintiff] was able to 13 frequently balance, occasionally climb ramps and stairs, and occasionally stoop kneel, 14 crouch, and crawl. [Plaintiff] could frequently handle bilaterally and could occasionally 15 overhead reach bilaterally. [Plaintiff] was able to perform work that allowed her to avoid 16 concentrated exposure to vibration and hazards. [Plaintiff] was able to perform simple, 17 routine tasks. AR 21-22. 18 The ALJ found at step four, plaintiff could not perform her prior relevant work. AR 19 26. But she could perform the requirements of certain occupations, such as Cashier II; 20 Fast foods worker; and Marker. AR 27. The ALJ determined at step five that plaintiff 21 was not disabled. AR 27-28. [1] 2 DISCUSSION [3] 4 1. Plaintiff’s statements regarding symptoms and limitations 5 Plaintiff contends the ALJ erred by failing to identify the statements of plaintiff that 6 the ALJ found to be not credible. Dkt. 9, Opening Brief, at 6. In addition, plaintiff 7 contends the ALJ erred by not giving any explanation or logical bridge to show a nexus 8 between the plaintiff’s statements that the ALJ found to be less than credible, and any 9 evidence in the record that would show lack of credibility. In addition, plaintiff argues the 10 ALJ’s determination of plaintiff’s lack of credibility is unsupported by substantial 11 evidence and is not grounded in clear and convincing reasons. Dkt. 9, at 7-15 12 The ALJ’s determinations regarding a claimant’s statements about limitations 13 “must be supported by specific, cogent reasons.” Reddick v. Chater, 157 F.3d 715 , 722 14 (9th Cir. 1998) (citing Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990)). In 15 assessing a Plaintiff’s credibility, the ALJ must determine whether plaintiff has 16 presented objective medical evidence of an underlying impairment. If such evidence is 17 present and there is no evidence of malingering, the ALJ can only reject plaintiff’s 18 testimony regarding the severity of symptoms for specific, clear, and convincing 19 reasons. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citing Lingenfelter v. 20 Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). 21 “Contradiction with the medical record is a sufficient basis for rejecting the 22 claimant’s subjective testimony.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 23 1155, 1161 (9th Cir. 2008) (citing Johnson v. Shalala, 60 F.3d 1428 , 1434 (9th [24] 1 Cir.1995)). But an ALJ may not reject a claimant’s subjective symptom testimony “solely 2 on a lack of objective medical evidence to fully corroborate the alleged severity of pain.” 3 Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991); Byrnes v. Shalala, 60 F.3d 639 , 4 641-42 (9th Cir. 1995) (applying rule to subjective complaints other than pain). 5 Treatment records cannot be cherry-picked; the ALJ must consider a particular record 6 of treatment in light of the overall diagnostic record. Ghanim v. Colvin, 763 F.3d at 1164 . 7 An ALJ may discount a claimant's testimony based on daily activities that either 8 contradict their testimony or that meet the threshold for transferable work skills. Orn v. 9 Astrue, 495 F.3d 625, 639 (9th Cir. 2007). None of the activities the ALJ pointed to 10 would amount to a contradiction or a work-related function or skill. AR 21. Plaintiff stated 11 that between March and December of 2020, her husband was handling household 12 chores, shopping, and cooking. AR 57-59. She stated that at times she had better days 13 and was more active, but even then it was very difficult. AR 59-60. 14 In this case, the ALJ’s reasons for discounting plaintiff’s statements about 15 symptoms and limitations were not clear, specific, and convincing, and were not based 16 on substantial evidence. As plaintiff points out in the Reply (Dkt. 14 at 4), the record 17 shows she was taking medications to treat numerous infections during 2020, and the 18 ALJ did not take this into account when reasoning that plaintiff should have taken 19 immunosuppressive medications – and using this as a basis for discounting plaintiff’s 20 statements. AR 23-24. 21 Plaintiff stated in July 2020 that she could only lift 10 pounds; standing was 22 painful to her back and feet, walking was painful to her spine, sitting was painful to her [24] 1 lower back. AR 215. She could walk for only five to ten minutes, and although she could 2 do some chores, she spent time lying down during the day. AR 211. 3 She testified, during the hearing in August of 2021, that from March 2020 through 4 December 2020 -- the heaviest thing she lifted was 20 to 25 pounds – and, due to back 5 pain (which she described as level 10 pain that could last for hours or days) she had 6 difficulty bending, moving, reaching out forward, sideways, upward, grabbing or holding 7 things, or sitting. AR 53-54, 59-60, 62-63. She also testified that she slipped a disc in 8 her back in 2020 and was having other physical symptoms from arthritis in her spine 9 that prevented her from walking, and made it painful to move or walk, and doing almost 10 anything could result in a spasm in her back, neck, or stomach – she also had difficulty 11 even getting out of bed. AR 46, 53-54. She could only sit 45-60 minutes at a time before 12 she would need to reposition, stand up, or stretch. She could stand for only 20 minutes 13 before it would be necessary to sit, move, reposition, or be laying down. AR 55, 58. 14 Between March 2020 and December 31, 2020, plaintiff underwent significant 15 treatment and later had ileostomy surgery to address gastrointestinal (including chronic 16 constipation (AR 299, 432, 505, 507, 510), severe abdominal pain, pyelonephritis, 17 recurrent infections of the urinary tract (AR 380, 466, 490, 503, 507, 510), multiple 18 abscesses in her abdomen and pelvis (AR 388, 407, 624), and dehydration requiring IV 19 fluids (AR 470-471). At the same time, she experienced pain from several sources: low 20 back pain, arthritis, fibromyalgia, and lumbar radiculopathy. AR 516-518, 522-524. 21 MRI’s taken in April 2020 and in March 2021 showed a disc herniation that impinged on 22 the right L5 traversing nerve root. AR 475, 481-482. She had epidural steroid injections 23 that affected her kidney function, according to Dr. Louie’s notes on March 18, 2021. AR [24] 1 478. Plaintiff testified that anti-inflammatories that doctor prescribed for her had quit 2 working and caused kidney infections, so she was not able to take them regularly. AR 3 47, 61. 4 Before having laparoscopic loop ileostomy surgery in November 2020, the 5 physicians who treated plaintiff noted back and radicular pain, beginning in late 2019. 6 AR 432-434, 558. Plaintiff was being treated for spondyloarthropathy with medications – 7 but the side effects became onerous. AR 47, 301-302, 328. In early 2021, plaintiff 8 concluded treatment for chronic constipation, and had back surgery in early 2021. AR 9 475, 478. 10 Rather than cherry-picking certain medication choices, the ALJ must consider a 11 particular record of treatment in light of the overall diagnostic record. Ghanim v. Colvin, [12] 763 F.3d at 1164 . Here, there is objective evidence of impairments, and objective 13 evidence that the medically determinable impairments could reasonably be expected to 14 produce some degree of symptoms. See, Smolen v. Chater, 80 F.3d 1273 , 1281-1282 15 (9th Cir. 1996). 16 All this medical evidence indicates that plaintiff sought treatment for her 17 conditions during the relevant period and followed the recommendations of her health 18 care providers. This eviscerates the ALJ’s inferences (AR 23) that plaintiff failed to seek 19 more significant treatment and that plaintiff had “generally normal” physical 20 examinations. There is ambiguity in the record concerning the intervals and reasons for 21 plaintiff’s inability to take certain medications, or particular choice of treatment for 22 inflammatory arthritis; on remand, the Commissioner should resolve this ambiguity with [24] 1 appropriate inquiry, and potentially with additional medical evidence. See, Smolen v. 2 Chater, at 1288. 3 2. Harmless error 4 An error that is inconsequential to the non-disability determination is harmless. 5 Stout v. v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)). If the errors 6 of the ALJ result in a residual functional capacity (RFC) that does not include relevant 7 work-related limitations, the RFC is deficient, and the error is not harmless. Id; see also, 8 Carmickle v. Comm’r. Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008); Embrey v. 9 Bowen, 849 F.2d 418, 422-423 (9th Cir. 1988); Stramol-Spirz v. Saul, 848 Fed. Appx. 10 715, 718 (9th Cir. 2021) (unpublished). 11 If the ALJ had properly evaluated medical evidence that supported the plaintiff’s 12 statements about her back condition, fibromyalgia, arthritis, and sciatica, that she 13 testified had caused severe work-related limitations between 2019 and the date of the 14 hearing, the ALJ may have come to a different conclusion about plaintiff’s RFC. The 15 Vocational Expert (VE) testified that an accommodation would be required, and there 16 would be no regular competitive jobs, if a person was capable of light work but was 17 required to change positions every 30 to 60 minutes, for three to five minutes. AR 6918 70. The ALJ did not ask the V.E. whether regular intervals of laying down would be 19 allowed. 20 The ALJ found plaintiff was capable of light work and “[plaintiff] was able to 21 frequently balance, occasionally climb ramps and stairs, and occasionally stoop kneel, 22 crouch, and crawl,” and that she could “frequently handle bilaterally”. If plaintiff’s 23 statements about the limitations caused by back pain, fibromyalgia, arthritis, and [24] 1 sciatica, are reviewed on remand, the ALJ’s assessment of plaintiff’s ability to 2 accomplish “light” work, and to handle, balance, climb, stoop, kneel, crouch, and crawl, 3 during the relevant period (date of onset March 20, 2020, and no later than December 4 31, 2020 – the date last insured) may be different. The questions posed by the ALJ to 5 the Vocational Expert also may be different. See AR 68-72. Therefore, the error in 6 evaluating plaintiff’s statements is not harmless. 7 3. Lay witness evidence 8 When evaluating opinions from non-acceptable medical sources such as a family 9 member, an ALJ may expressly disregard such lay testimony if the ALJ provides 10 “reasons germane to each witness for doing so.” Turner v. Comm'r of Soc. Sec., 613 11 F.3d 1217, 1224 (9th Cir. 2010) (quoting Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 12 2001). The ALJ also may “draw inferences logically flowing from the evidence.” Sample 13 v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). 14 For applications filed on or after March 27, 2017, such as this one, an ALJ is “not 15 required to articulate” how he or she evaluated evidence from non-medical sources 16 such as educational personnel, public and private social welfare agency personnel, and 17 other lay witnesses. 20 C.F.R. § 404.1502 (e). Yet lay witness statements are not listed 18 in the regulation that identifies evidence that is inherently of no value, or non19 persuasive. 20 C.F.R. § 404 .1520b(c). Because the Ninth Circuit has not overruled any 20 of the cases that require “germane reasons” for the ALJ to reject lay witness evidence, 21 the Court will apply that standard. 22 In this case, plaintiff’s spouse testified concerning how limited plaintiff’s activities 23 were, due to her back problems, fatigue, and gastrointestinal disorders. AR 54-65. [24] 1 Plaintiff also presented information from her father-in-law, who stated that she was 2 limited in her standing, sitting, walking, and lifting. AR 226. The ALJ rejected these 3 statements for the same reason the ALJ did not accept plaintiff’s statements about 4 symptoms and limitations as being credible. As the Court has determined the ALJ erred 5 with respect to plaintiff’s testimony, the Court remands for consideration of lay witness 6 statements. 7 4. Remand for additional proceedings. 8 “‘The decision whether to remand a case for additional evidence, or simply to award 9 benefits [,] is within the discretion of the court.’” Trevizo v. Berryhill, 871 F.3d 664 , 682 10 (9th Cir. 2017) (quoting Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)). If an 11 ALJ makes an error and the record is uncertain and ambiguous, the court should 12 remand to the agency for further proceedings. Leon v. Berryhill, 880 F.3d 1041 , 1045 13 (9th Cir. 2017). Likewise, if the court concludes that additional proceedings can remedy 14 the ALJ’s errors, it should remand the case for further consideration. Revels, 874 F.3d 15 at 668. 16 The Ninth Circuit has developed a three-step analysis for determining when to 17 remand for a direct award of benefits. Such remand is generally proper only where 18 “(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed 19 to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly 20 discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.” [21] Trevizo, 871 F.3d at 682 -83 (quoting Garrison v. Colvin, 759 F.3d 995, 1020 (9th [22] Cir. 2014)). [24] 1 The Ninth Circuit emphasized in Leon that even when each element is satisfied, 2 the district court still has discretion to remand for further proceedings or for award of 3 benefits. Leon, 80 F.3d at 1045 . 4 Based on a review of the record, the Court concludes that the record is not free 5 from important and relevant conflicts, considering the plaintiff’s history of medical 6 treatment. Therefore, this matter should be reversed for further administrative 7 proceedings, including a de novo hearing, not with a direction to award benefits. See id. [8] CONCLUSION [9] Based on the foregoing discussion, the Court concludes the ALJ improperly [10] determined plaintiff to be not disabled. Therefore, the ALJ’s decision is reversed and [11] remanded for further administrative proceedings. The Commissioner is directed to hold [12] a de novo hearing to properly evaluate plaintiff’s statements about her symptoms and [13] limitations; the Commissioner shall also consider the lay witness evidence; and the [14] Commissioner shall allow plaintiff an opportunity to present additional evidence. [15] 16 Dated this 5th day of September, 2023. A 17 ________________________ Theresa L. Fricke 18 United States Magistrate Judge