Reed v. Commissioner of Social Security Administration

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Nyssa Reed, No. CV-20-00496-TUC-JCH 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, [13] Defendant. [14] 15 Plaintiff Nyssa Reed ("Reed") brought this action under 42 U.S.C. §§ 405 (g) & 16 1383(c)(3), seeking judicial review of a final decision by Defendant Commissioner of 17 Social Security (the "Commissioner"). (Doc. 1.) This matter was referred to United States 18 Magistrate Judge MacDonald for Report and Recommendation ("R&R"). (Doc. 14.) On 19 August 15, 2022, Judge MacDonald issued an R&R finding the Administrative Law Judge 20 ("ALJ") erred and recommending the Court reverse and remand the Commissioner's 21 decision. (Doc. 30 at 40.) Defendant objects to the R&R's analysis and ultimate 22 recommendation. (Doc. 31.) For the following reasons, the Court adopts the R&R in part, 23 and reverses and remands the Commissioner's decision. 24 I. BACKGROUND 25 The R&R ably described the facts, Defendant does not object to them, and the Court 26 adopts them wholesale for brevity's sake. What follows is a summary. 27 In 2018, Reed applied for disability benefits, alleging disability due to multiple 28 sclerosis ("MS"), asthma, scoliosis, and anxiety. See Administrative Record ("AR") 13. 1 The Social Security Administration denied Reed's original application and her subsequent 2 application on reconsideration. AR 13. Reed requested an administrative hearing, which 3 was held before ALJ Robert Spaulding in late 2019. AR 13. 4 At the hearing, Reed testified about the circumstances of her alleged disability that 5 began in April, 2018. She related that an MS flare-up in February, 2018, coupled with 6 rising temperatures in May, prevented her from returning to work. AR 41. Reed 7 acknowledged that by June her MS flare-up was better, and that her medication for fatigue 8 was extremely helpful. AR 41–42. She clarified that in June it was primarily severe heat9 related issues that persuaded her neurologist to "keep her off work." AR 42. Reed also 10 testified that she had another MS flare-up in August, but this was her last flare-up in over 11 a year. AR 42. She described on-going "pseudo-flares"—symptoms that aren't normally 12 documented or called in because they don't need medication, just "stuff [she] needs to do 13 at home" like sleeping or using a heating pad. AR 42–44. When asked to describe in her 14 own words why she cannot work, Reed identified a cycle of severe fatigue and over15 exertion leading to "flares or pseudo-flares," coupled with worsening short-term memory 16 problems. AR 43–44. She explained that "everything [she does] is trying to maintain a 17 stress-free environment and trying to not over-exert [herself] or get too tired." AR 44. 18 The ALJ concluded that Plaintiff was not disabled within the meaning of the Social 19 Security Act. AR 16–30. The ALJ found that Reed's "statements concerning the intensity, 20 persistence and limiting effects of [her] symptoms are not entirely consistent with the 21 medical evidence and other evidence in the record." AR 19. Reviewing the medical 22 evidence, the ALJ noted that Reed's physical examinations were generally benign and 23 showed that her medication was working and her condition was stable and improved. AR 24 19–20. The ALJ reviewed the opinions of several "consultative examiners" and found two 25 opinions favorable to Reed unpersuasive because the opinions relied on general references 26 to MS flaring symptoms without acknowledging the medical records do not indicate Reed 27 suffered any flaring symptoms after August, 2018. AR 20. By contrast, the ALJ found 28 another opinion that was unfavorable to Reed persuasive because it was based "on an 1 accurate discussion of the evidence of record" and reached conclusions "consistent with 2 the totality of the evidence." AR 21. Finally, the ALJ relied on testimony from a vocational 3 expert to find that Reed's limitations were consistent with work as a school secretary, a 4 position she previously held. AR 22. 5 After the ALJ's unfavorable decision on January 28, 2020, the Appeals Council 6 denied Reed's request for review. AR 1. Reed timely filed this cause of action. (Doc. 1.) 7 The R&R recommends the District Judge reverse and remand the Commissioner's 8 decision for further consideration. (Doc. 30 at 40.) The R&R agreed with Reed's assertion 9 that "[t]he central issue in this case is whether Ms. Reed's [MS] causes her to be off task or 10 absent an unacceptable amount of time due to fatigue, flares, or potential flares." (Id. at 33 11 (citing Doc. 25 at 6).) The R&R found that the ALJ committed legal error in assessing 12 Reed's MS symptom testimony. (Id.) The R&R also noted "serious concerns" with the 13 ALJ's medical-evidence findings, and the ALJ's "failure to consider [Reed's] third party 14 testimony, despite its availability." (Id. at 39–40.) The R&R asserted that "the evidence 15 relied on by the ALJ did not actually discount [Reed's] testimony," and disputed the validity 16 of the ALJ's decision to discount certain medical opinions or Reed's mother's statement. 17 (Id. at 36–37.) The R&R concluded that the ALJ committed legal error by failing to set out 18 "clear and convincing" reasons for discounting Reed's symptom testimony. 19 The Commissioner objects to the R&R because it "ignored the ALJ's specific 20 findings regarding [Reed's] symptom allegations." (Doc. 31 at 2.) The Commissioner 21 asserts the ALJ rejected Reed's symptom testimony for "different, and stronger and better 22 supported reasons" than the R&R suggested. (Id.) These reasons include normal 23 examination findings, Reed's failure to report frequent MS "pseudo-flares" to her providers, 24 and Reed's admissions that medication provided good relief for her infrequent symptom 25 recurrences. (Id. at 7.) The Commissioner contends the ALJ's decision is grounded on 26 evidence that, over time, Reed's debilitating MS symptoms had improved to a point where 27 she had been able to work with MS in the past and that she had not had any MS relapses 28 since her symptoms had improved. (Id. at 2–3.) The Commissioner argues the ALJ properly 1 considered the objective medical evidence because the preponderance of the record 2 supports his interpretation that Reed presented with largely non-disabling symptoms. (Id. 3 at 4.) And, the Commissioner adds, even if the ALJ's evaluation of the objective medical 4 evidence was in error, that error was harmless given the ALJ's proper consideration of the 5 infrequency of Reed's reported symptoms and her response to treatment. (Id.) 6 II. STANDARD OF REVIEW 7 a. Report and Recommendation Review Standard 8 In reviewing a Magistrate Judge's R&R, "[a] judge of the court shall make a de novo 9 determination of those portions of the report ... to which objection is made." 28 U.S.C. § 10 636(b)(1); see also Fed. R. Civ. P. 72(b); United States v. Remsing, 874 F.2d 614, 617 (9th 11 Cir. 1989). 12 b. ALJ Decision Review Standard 13 An ALJ determining eligibility for Disability Insurance Benefits or SSI must 14 evaluate whether a claimant is unable "to engage in any substantial gainful activity by 15 reason of any medically determinable physical or mental impairment which can be 16 expected to result in death or which has lasted or can be expected to last for a continuous 17 period of not less than 12 months." 42 U.S.C. §§ 423 (d)(1)(a) & 1382(a)(3)(A). A five18 step sequential evaluation governs eligibility for benefits under both programs. See 20 19 C.F.R. §§ 404.1520 , 404.1571–76, 416.920 & 416.971–76; Bowen v. Yuckert, 482 U.S. 20 137, 140–142 (1987). The five-step process requires the claimant to show (1) she has not 21 worked since the alleged disability onset date, (2) she has a severe physical or mental 22 impairment, and (3) the impairment meets or equals a listed impairment or (4) her residual 23 functional capacity ("RFC") precludes her from doing her past work.1 If at any step the 24 Commissioner determines that a claimant is or is not disabled, the inquiry ends. 25 An ALJ's decision may be reversed only when it is unsupported by substantial [26] 1 “Between steps three and four of the five-step evaluation, the ALJ must proceed to an 27 intermediate step in which the ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149 , 1151 n.2 (9th Cir. 2007). A plaintiff’s residual 28 functional capacity is what he can do despite existing exertional and non-exertional limitations. Cooper v. Sullivan, 880 F.2d 1152 , 1155–56 n.5–7 (9th Cir. 1989). 1 evidence or constitutes harmful legal error. Aukland v. Massanari, 257 F.3d 1033 , 1035 2 (9th Cir. 2001). "'Substantial evidence' means more than a mere scintilla, but less than a 3 preponderance, i.e., such relevant evidence as a reasonable mind might accept as adequate 4 to support a conclusion." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) 5 citing Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990). "An error is harmless if it is 6 'inconsequential to the ultimate nondisability determination[.]'" Treichler v. Comm'r of 7 Soc., Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2015) (internal citation and quotation 8 omitted). Put differently, "an error is harmless so long as there remains substantial evidence 9 supporting the ALJ's decision and the error does not negate the validity of the ALJ's 10 ultimate conclusion." Molina v. Astrue, 674 F.3d 1004, 1115 (9th Cir. 2012) (internal 11 quotation marks and citations omitted), superseded by regulation on other grounds. 12 III. ANALYSIS 13 Here, the Commissioner objects to multiple aspects of the R&R's analysis and to its 14 ultimate recommendation. See Doc. 31 at 4:24–5:1, 7:17–19. The Court therefore must 15 review those portions of the R&R de novo. In her opening brief, Reed seeks remand for 16 reconsideration of evidence for two reasons: (1) failure to articulate clear and convincing 17 reasons to discount Reed's symptom testimony; and (2) failure to properly analyze 18 supportive opinion evidence. (Doc. 25 at 2.) Because the Court finds Reed's first argument 19 persuasive and sufficient for remand, it does not reach Reed's second argument. 20 A. Reed's Symptom Testimony 21 When evaluating a claimant's testimony regarding pain and symptoms, an ALJ 22 performs a two-step analysis to determine whether the testimony is credible. Garrison v. 23 Colson, 759 F.3d 995, 1014 (9th Cir. 2014). At step one, the ALJ evaluates whether the 24 claimant presented objective medical evidence of an underlying impairment that could 25 reasonably produce the pain and symptoms alleged. Id. 26 Here, the ALJ determined that Reed's impairments could reasonably be expected to 27 cause some of her alleged symptoms. AR 19. Specifically, the ALJ noted that Reed alleged 28 impairments from asthma, MS, and scoliosis. Id. Her alleged medication side effects 1 included sleepiness, bruising, swelling, flu symptoms, and muscle weakness. Id. The ALJ 2 further acknowledged Reed's testimony that her symptoms and medication side effects 3 create difficulty walking, standing, sitting, lifting, and performing postural movements. Id. 4 The ALJ also acknowledged that Reed reported removing stress to help reduce pseudo5 flares, and that she experienced pseudo-flares every four to six weeks. Id. 6 At step two in the ALJ's credibility analysis, if there is no evidence of malingering, 7 the ALJ can reject the claimant's testimony only by offering clear and convincing reasons 8 for doing so. Garrison, at 1014–15. "This is not an easy requirement to meet: 'The clear 9 and convincing standard is the most demanding required in Social Security cases.'" 10 Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (citing Moore v. Comm'r of Soc. 11 Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). Due to the care required in these cases, 12 the Social Security Administration issued a Social Security Ruling ("SSR") to guide ALJs. 13 The Court quotes this SSR at length because its discussion of multiple factors is critical: 14 A report of . . . inconsistencies in the objective medical evidence is one of many factors we must consider in evaluating the intensity, persistence, and [15] limiting effects of an individual's symptoms. . . . If we cannot make a 16 [favorable decision] based solely on objective medical evidence, then we carefully consider other evidence in the record [such as:] [17] . . . . [18] [A. Evidence from individuals:] . . . An individual's statements may also 19 include activities that precipitate or aggravate the symptoms, medications and treatments used, and other methods used to alleviate the symptoms. We [20] will consider an individual's statements about the intensity, persistence, and 21 limiting effects of symptoms, and we will evaluate whether the statements are consistent with objective medical evidence and the other evidence. [22] . . . . [23] [C. Evidence from non-medical sources:] Other sources may provide 24 information from which we may draw inferences and conclusions about an individual's statements that would be helpful to us in assessing the intensity, [25] persistence, and limiting effects of symptoms. Examples of such sources 26 include . . . non-medical sources such as family and friends[.] . . . The adjudicator will consider any personal observations of the individual in terms [27] of how consistent those observations are with the individual's statements 28 about his or her symptoms as well as with all of the evidence in the file. 1 . . . . 2 [D. Additional factors:] In addition to using all of the evidence to evaluate the intensity, persistence, and limiting effects of an individual's symptoms, [3] we will also use the factors set forth in 20 CFR 404.1529(c)(3) and 4 416.929(c)(3). These factors include: 5 1. Daily activities; 6 2. The location, duration, frequency, and intensity of pain or other symptoms; [7] 3. Factors that precipitate and aggravate the symptoms; [8] 4. The type, dosage, effectiveness, and side effects of any 9 medication an individual takes or has taken to alleviate pain or other symptoms; [10] 5. Treatment, other than medication, an individual receives or 11 has received for relief of pain or other symptoms; 12 6. Any measures other than treatment an individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his [13] or her back, standing for 15 to 20 minutes every hour, or 14 sleeping on a board); and 15 7. Any other factors concerning an individual's functional limitations and restrictions due to pain or other symptoms. [16] We will consider other evidence to evaluate only the factors that are relevant 17 to assessing the intensity, persistence, and limiting effects of the individual's symptoms. If there is no information in the evidence of record regarding one [18] of the factors, we will not discuss that specific factor in the determination or 19 decision because it is not relevant to the case. We will discuss the factors pertinent to the evidence of record. [20] 21 SSR 16-3p. Critically, the ALJ must "not disregard an individual's statements about the 22 intensity, persistence, and limiting effects of symptoms solely because the objective 23 medical evidence does not substantiate the degree of impairment-related symptoms alleged 24 by the individual." Id. 25 Here, the ALJ determined that Reed's "statements concerning the intensity, 26 persistence, and limiting effects of [her] symptoms are not entirely consistent with the 27 medical evidence." AR 19. Regarding Reed's MS, the ALJ noted that Reed was diagnosed 28 in 2011, and that a 2019 MRI showed "no new or enhancing lesions and no significant 1 change since a prior diagnostic" in 2016. AR 19. The ALJ also noted that "in contrast to 2 claimant's testimony, [Reed] indicated that she was back to baseline due to gradual 3 improvement of her MS related symptoms as of April 19, 2018." AR 20. Finally, the ALJ 4 noted "reports of improvement continu[ing] in the record, such as feeling really good on 5 May 18, 2018, reporting feeling ready to return to work on June 18, 2018, and being stable 6 and doing well on October, 2018." AR 20. The ALJ summarized these as "multiple 7 inconsistencies between the claimant's allegations and the record as a whole[,]" 8 emphasizing a "singular reported instance of actual reported flaring symptoms" and the 9 fact that Reed's "'pseudo-flares' were unreported to any medical providers." AR 21. The 10 ALJ concluded on this basis that "the objective evidence supports that the claimant retains 11 the residual functional capacity detailed above." AR 21. 12 Reed objects that the ALJ failed to consider "the measures that she must take in 13 order to prevent flares[.]" (Doc. 25 at 2.) Reed later clarifies that the "most egregious 14 problem" with the ALJ's decision is that he "failed to consider that [Reed's] condition 15 worsens under stress." (Id. at 8.) Reed draws on SSR 16-3p to show that the way a person 16 structures their activities to avoid symptoms may be a highly relevant aspect of their 17 disability. (Id.) Similarly, in her Reply, Reed emphasizes that her disability "is caused, not 18 by current elevated symptoms, but rather by the measures [she] must take to prevent such 19 symptoms." (Doc. 29 at 4.) In short, Reed argues that a "life of carefully balancing stress 20 and activity levels to reduce symptoms" is "incompatible with full-time work." (Id. at 3.) 21 The Court construes Reed's argument and reference to SSR 16-3p as claiming that the ALJ 22 failed to consider all required factors in making his determination. 23 The Court agrees with Reed that the ALJ's decision did not consider all relevant 24 factors as detailed in SSR 16-3p and associated regulations. The ALJ's decision was 25 grounded solely in "inconsistencies in the objective evidence" of the persistence and 26 intensity of Reed's MS symptoms. The ALJ begins the portion of his decision dealing with 27 Reed's symptom testimony by saying "the claimant's statements concerning the intensity, 28 persistence and limiting effects of [her] symptoms are not entirely consistent with the 1 medical evidence and other evidence in the record." AR 19. The ALJ expands on this 2 inconsistency in the next two paragraphs—detailing many examinations after Reed's 3 alleged disability date where she (1) did not report pseudo-flare symptoms occurring every 4 four to six weeks; (2) displayed few if any limitations or symptoms; (3) stated that she was 5 feeling good, stable, and doing well; and (4) stated that drug treatment for symptoms like 6 fatigue and neuropathic pain was effective in managing her symptoms. AR 19–20. The 7 Court notes that the ALJ's observations on this one factor were quite reasonable. But after 8 introducing his analysis by stating that Reed's testimony was inconsistent with the medical 9 evidence "and other evidence on the record," the ALJ did not subsequently discuss what 10 "other evidence" he meant or refer to any other factor described by SSR 16-3p. 11 Contrasting SSR 16-3p's factors with the ALJ's analysis is revealing. When the 12 medical record does not support a favorable decision, the SSR provides the ALJ must 13 consider all other evidence and discuss all factors pertinent to the entire record. SSR 1614 3p. The first such factor is in Section A: activities that precipitate or aggravate a claimant's 15 symptoms. Id. But the ALJ does not analyze Reed's various statements about the sorts of 16 activities that trigger flares or pseudo-flares and her ongoing efforts to avoid triggers so 17 that her debilitating symptoms do not return. See, e.g., AR 43–44 ("[I]t's a constant circle 18 of I'm so tired that if I overexert myself, I have the pseudo-flares or the flares and then the 19 stress of situations bring on flares or pseudo-flares[.] . . . My last neurologist [said] that 20 I've had so many flares recently, since I was diagnosed, that there's only so many I can 21 have before I'll be wheelchair-bound, and she said you've had so many. We don't know 22 what that number is for you, but every time you're having another one, you're getting closer 23 to being in a wheelchair. So, everything I do is trying to maintain a stress-free environment 24 and trying to not overexert myself or get too tired."). The ALJ only acknowledges that 25 Reed "reported removing stress" in a preceding paragraph that recounts her testimony 26 without analyzing the credibility or (in)significance of that testimony. AR 19. The second 27 SSR 16-3p recommended factor is in Section C: family member statements that provide 28 relevant information. SSR 16-3p. But the ALJ's analysis does not mention Reed's mother's 1 || two adult-function reports in which she states that Reed needs assistance dressing and 2|| bathing, is exhausted "all the time," and that "[a]ny stress throws her into a relapse." AR 3 || 275, 314, 319 (emphasis omitted). Finally, the next section of SSR 16-3p reiterates that the ALJ must use all relevant factors as set out by regulations 20 CFR 404.1529(c)(3) and || 416.929(c)(3). Of the seven factors on this list, the ALJ analyzed only one: the frequency || and intensity of symptoms. 7 Because the ALJ analyzed only one of several relevant factors and ignored at least 8 || two that might have changed his decision, the Court finds that the ALJ committed harmful 9|| error. As the SSR and associated regulations make clear, a single factor, no matter how 10 || strong, cannot adequately support an unfavorable decision. All other relevant factors must 11 || be considered. For this reason, the ALJ's decision does not meet the substantial evidence 12 || standard, much less the heightened "clear and convincing reasons" standard. B. ORDER 14 Accordingly, 15 IT IS ORDERED ADOPTING IN PART the Report and Recommendation, (Doc. 16] 30), and REVERSING AND REMANDING the decision of the Commissioner. On 17 || remand, the Commissioner must consider whether Reed's RFC is changed by additional 18 || factors such as relevant third-party testimony, factors that aggravate or precipitate 19 || symptoms, measures Reed takes to limit her symptoms, or details of Reed's limited daily || activities. 21 IT IS FURTHER ORDERED DIRECTING the Clerk of the Court to enter 22 || judgment accordingly and close this case. 23 Dated this 22nd day of September, 2022. [24] 25 ‘ 26 WS Ht bhr-b onorable John C, Hinderaker 27 United States District Judge [28] -10-