Tabayoyon v. Commissioner of Social Security, No. 1:2017cv03120 - Document 19 (E.D. Wash. 2018)

Court Description: ORDER Granting 12 Plaintiff's Motion for Summary Judgment and Denying 16 Defendant's Motion for Summary Judgment. Signed by Judge Rosanna Malouf Peterson. (PL, Case Administrator)

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Tabayoyon v. Commissioner of Social Security Doc. 19 1 2 3 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 4 Oct 09, 2018 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 ANNE T., 8 No. 1:17-CV-3120-FVS Plaintiff, 9 vs. 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 12, 16 12 BEFORE THE COURT are the parties’ cross-motions for summary 13 14 judgment. ECF Nos. 12, 16. This matter was submitted for consideration without 15 oral argument. Plaintiff was represented by attorney D. James Tree. Defendant 16 was represented by Special Assistant United States Attorney Christopher J. 17 Brackett. The Court, having reviewed the administrative record and the parties’ 18 briefing, is fully informed. For the reasons discussed below, Plaintiff’s Motion, 19 ECF No. 12, is granted and Defendant’s Motion, ECF No. 16, is denied. 20 / / / 21 / / / ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 1 Dockets.Justia.com 1 2 JURISDICTION Plaintiff Anne T. (“Plaintiff”) filed for disability income benefits (DIB) on 3 June 12, 2013, alleging an onset date of June 30, 2012. Tr. 202-03, 241. Benefits 4 were denied initially, Tr. 124-26, and upon reconsideration, Tr. 132-34. Plaintiff 5 appeared at a hearing before an administrative law judge (ALJ) on September 25, 6 2015. Tr. 47-88. On March 28, 2016, the ALJ denied Plaintiff’s claim, Tr. 21-36, 7 and on May 10, 2017, the Appeals Council denied review. Tr. 1-5. The matter is 8 now before this Court pursuant to 42 U.S.C. § 405(g). 9 10 BACKGROUND The facts of the case are set forth in the administrative hearing and 11 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner, 12 and are therefore only summarized here. 13 Plaintiff was 45 years old at the time of the hearing. Tr. 52. She has an 14 associate of arts degree and was a certified medical assistant. Tr. 52. She last 15 worked in December 2012 as an on-call medical assistant. Tr. 53-54. She also has 16 work experience as a stage technician for a theater and as a telephone operator. Tr. 17 54-55. She was previously honorably discharged from the Navy as a store keeper 18 third class. Tr. 58, 71. 19 Plaintiff testified she is not able to work because she is in a lot of pain 20 “24/7.” Tr. 64. She has fibromyalgia and her pain has steadily gotten worse. Tr. 21 64, 67-68. She has pain and swelling in her joints. Tr. 68. Activity such as ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 2 1 participating in the hearing will cause her to go home and go to bed for the rest of 2 the day. Tr. 69. She takes morphine for pain and another medication for 3 breakthrough pain. Tr. 69. She also has interstitial cystitis which causes cramping 4 and pain throughout the day and burning when she uses the bathroom. Tr. 69. The 5 pain is crippling and there is not much she can do to treat it, other than lie down 6 and use a heating pad which helps a little. Tr. 69. She gets extremely fatigued and 7 needs to lie down frequently. Tr. 71. 8 Plaintiff testified she has depression. Tr. 70. She is unable to do anything 9 with her children, she is “unable to keep a life,” and, “I’m not living the way I’m 10 going right now.” Tr. 70. She testified she lived an active life until around 2012, 11 working 10-14 hours days five days a week. Tr. 70. She used to volunteer at her 12 children’s schools and at a weekend medical clinic. Tr. 70-71. Sometimes she 13 also worked at the theater on weekends. Tr. 71. Plaintiff testified that her life “is 14 so frustrating right now that I want to scream.” Tr. 72. 15 16 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 17 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 18 limited; the Commissioner’s decision will be disturbed “only if it is not supported 19 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 20 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 21 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 3 1 (quotation and citation omitted). Stated differently, substantial evidence equates to 2 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 3 citation omitted). In determining whether the standard has been satisfied, a 4 reviewing court must consider the entire record as a whole rather than searching 5 for supporting evidence in isolation. Id. 6 In reviewing a denial of benefits, a district court may not substitute its 7 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 8 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 9 rational interpretation, [the court] must uphold the ALJ’s findings if they are 10 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 11 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 12 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 13 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 14 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 15 decision generally bears the burden of establishing that it was harmed. Shinseki v. 16 Sanders, 556 U.S. 396, 409-10 (2009). 17 18 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 19 the meaning of the Social Security Act. First, the claimant must be “unable to 20 engage in any substantial gainful activity by reason of any medically determinable 21 physical or mental impairment which can be expected to result in death or which ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 4 1 has lasted or can be expected to last for a continuous period of not less than twelve 2 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be 3 “of such severity that he is not only unable to do his previous work[,] but cannot, 4 considering his age, education, and work experience, engage in any other kind of 5 substantial gainful work which exists in the national economy.” 42 U.S.C. § 6 423(d)(2)(A). 7 The Commissioner has established a five-step sequential analysis to 8 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 9 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 10 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in 11 “substantial gainful activity,” the Commissioner must find that the claimant is not 12 disabled. 20 C.F.R. § 404.1520(b). 13 If the claimant is not engaged in substantial gainful activity, the analysis 14 proceeds to step two. At this step, the Commissioner considers the severity of the 15 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers 16 from “any impairment or combination of impairments which significantly limits 17 [his or her] physical or mental ability to do basic work activities,” the analysis 18 proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment 19 does not satisfy this severity threshold, however, the Commissioner must find that 20 the claimant is not disabled. 20 C.F.R. § 404.1520(c). 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 5 1 At step three, the Commissioner compares the claimant’s impairment to 2 severe impairments recognized by the Commissioner to be so severe as to preclude 3 a person from engaging in substantial gainful activity. 20 C.F.R. § 4 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the 5 enumerated impairments, the Commissioner must find the claimant disabled and 6 award benefits. 20 C.F.R. § 404.1520(d). 7 If the severity of the claimant’s impairment does not meet or exceed the 8 severity of the enumerated impairments, the Commissioner must pause to assess 9 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 10 defined generally as the claimant’s ability to perform physical and mental work 11 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 12 404.1545(a)(1), is relevant to both the fourth and fifth steps of the analysis. 13 At step four, the Commissioner considers whether, in view of the claimant’s 14 RFC, the claimant is capable of performing work that he or she has performed in 15 the past (past relevant work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is 16 capable of performing past relevant work, the Commissioner must find that the 17 claimant is not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of 18 performing such work, the analysis proceeds to step five. 19 At step five, the Commissioner considers whether, in view of the claimant’s 20 RFC, the claimant is capable of performing other work in the national economy. 21 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 6 1 must also consider vocational factors such as the claimant’s age, education and 2 past work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is capable of 3 adjusting to other work, the Commissioner must find that the claimant is not 4 disabled. 20 C.F.R. § 404.1520(g)(1). If the claimant is not capable of adjusting to 5 other work, analysis concludes with a finding that the claimant is disabled and is 6 therefore entitled to benefits. 20 C.F.R. § 404.1520(g)(1). 7 The claimant bears the burden of proof at steps one through four above. 8 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 9 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 10 capable of performing other work; and (2) such work “exists in significant 11 numbers in the national economy.” 20 C.F.R. § 404.1560(c)(2); Beltran v. Astrue, 12 700 F.3d 386, 389 (9th Cir. 2012). 13 14 ALJ’S FINDINGS At step one, the ALJ found Plaintiff has not engaged in substantial gainful 15 activity since June 30, 2012, the alleged onset date. Tr. 23. At step two, the ALJ 16 found Plaintiff has the following severe impairments: obesity, fibromyalgia, 17 interstitial cystitis, knee degenerative joint disease, hip osteoarthritis/degenerative 18 joint disease, Raynaud’s disease, affective disorder, anxiety disorder versus 19 posttraumatic stress disorder (PTSD), and somatoform/pain disorder. Tr. 24. At 20 step three, the ALJ found that Plaintiff does not have an impairment or 21 combination of impairments that meets or medically equals the severity of a listed ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 7 1 impairment. Tr. 24. The ALJ then found Plaintiff has the residual functional 2 capacity to perform a reduced range of light work with the following additional 3 limitations: 4 5 6 7 8 9 10 11 12 13 14 She can stand and/or walk for about two hours in an eight-hour workday and she can use a medically required hand held assistive device for ambulation. She can frequently reach. She can occasionally balance, stoop, kneel, and crouch. She cannot crawl or climb ladders, ropes, scaffolds, ramps, or stairs. She must avoid concentrated exposure to extreme cold and heat, humidity, vibration, pulmonary irritants, and hazards. She cannot be required to operate motorized vehicles. She can work in very quiet to moderate noise intensity level as those terms are defined in the Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (SCO). She can perform simple, routine tasks and follow short, simple instructions. She can do work that needs little or no judgment and she can perform simple duties that can be learned on the job in a short period. She requires a work environment with minimal supervisor contact (minimal does not preclude all contact, rather it means that contact does not occur regularly. Minimal contact also does not preclude simple and superficial exchanges or being in proximity to the supervisor). She can work in proximity to coworkers but not in a cooperative or team effort. She requires a work environment that has no more than superficial interactions with coworkers. She requires a work environment that is predictable and with few work setting changes. She requires a work environment without public contact. 15 Tr. 26. 16 At step four, the ALJ found Plaintiff is unable to perform past relevant work. 17 Tr. 35. After considering the testimony of a vocational expert and Plaintiff’s age, 18 education, work experience, and residual functional capacity, the ALJ found there 19 are other jobs that exist in significant numbers in the national economy that 20 Plaintiff can perform, such as patcher/bench assembler, final inspector, or circuit 21 board assembler. Tr. 35-36. Therefore, at step five, the ALJ concluded that ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 8 1 Plaintiff has not been under a disability, as defined in the Social Security Act, from 2 June 30, 2012, through the date of the decision. Tr. 36. 3 ISSUES 4 Plaintiff seeks judicial review of the Commissioner’s final decision denying 5 disability income benefits under Title II of the Social Security Act. ECF No. 15. 6 Plaintiff raises the following issues for review: 7 1. 8 Whether the ALJ failed to properly consider the Veteran’s Administration disability rating; 9 2. 10 Whether the ALJ failed to properly consider the medical opinion evidence; 11 3. 12 Whether the ALJ improperly discredited Plaintiff’s symptom claims; and 13 4. Whether the ALJ properly considered the lay witness statement. 14 ECF No. 12 at 1. 15 DISCUSSION 16 A. Veteran’s Administration Disability Rating 17 Plaintiff contends the ALJ failed to properly consider the Veteran’s 18 Administration (VA) disability rating finding that Plaintiff is 50% disabled. ECF 19 No. 12 at 12-14. An ALJ must ordinarily give great weight to a VA determination 20 of disability because of the “marked similarity between these two [the VA and 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 9 1 SSA] federal disability programs.” McCartey v. Massanari, 298 F.3d 1072, 1076 2 (9th Cir. 2002). 3 4 5 6 7 8 Both programs serve the same governmental purpose—providing benefits to those unable to work because of a serious disability. Both programs evaluate a claimant’s ability to perform full-time work in the national economy on a sustained and continuing basis; both focus on analyzing a claimant’s functional limitations; and both require claimants to present extensive medical documentation in support of their claims. Both programs have a detailed regulatory scheme that promotes consistency in adjudication of claims. Both are administered by the federal government, and they share a common incentive to weed out meritless claims. The VA criteria for evaluating disability are very specific and translate easily into SSA’s disability framework. 9 Id. However, “[b]ecause the VA and SSA criteria for determining disability are 10 not identical, [] the ALJ may give less weight to a VA disability rating if he gives 11 persuasive, specific, valid reasons for doing so that are supported by the record.” 12 Id. An ALJ is not compelled to adopt the conclusions of the VA’s decisions 13 wholesale, but if an ALJ deviates from final VA decisions, the deviation must be 14 based on contrary evidence that is persuasive, specific, and valid, and supported by 15 the record. Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (internal quotation 16 omitted). 17 In June 2013, the VA revised Plaintiff’s disability rating from 40% to 50% 18 for degenerative arthritis, status post medial meniscectomy in the left knee; right 19 hip strain; and tear of left iliofemoral ligament with degenerative joint disease. Tr. 20 221-33. The ALJ gave little weight to the numeric disability rating assessed by the 21 VA. Tr. 33-34. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 10 1 First, the ALJ rejected the VA disability ratings because “the VA has not 2 opined that the claimant was unemployable in these rating decisions.” Tr. 34. The 3 meaning of this statement is unclear. One interpretation is that the VA rating is 4 equivalent to a determination that Plaintiff is employable. If that is what the ALJ 5 intended, it follows that the ALJ would not need to reject the rating but would 6 rather cite the rating as support for the ALJ’s ultimate nondisability conclusion.1 7 This interpretation is also at odds with the ALJ’s second reason for rejecting the 8 VA rating, which asserts that the rating is not based on an assessment of Plaintiff’s 9 ability to perform work in the national economy. Tr. 34. It is inconsistent to first 10 suggest that the rating reflects a determination regarding employability, but then 11 state the assessment is not based on an assessment of Plaintiff’s ability to work. 12 Alternatively, if the meaning of the first reason for rejecting the VA rating is 13 that VA ratings in general are not employability ratings, this reasoning would be 14 based on the general ground that the VA and SSA disability inquiries are different, 15 16 17 18 1 It is noted that the VA 50% disability rating does not take into account all of 19 Plaintiff’s severe impairments such as fibromyalgia and interstitial cystitis, it only 20 takes into account her service-related impairments involving her knee and hip. Tr. 21 24, 221-30. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 11 1 and “[that] analysis fell afoul of McCartey.” 2 Valentine v. Comm’r of Soc. Sec. 2 Admin., 574 F.3d 685, 695 (9th Cir. 2009). Regardless, this is not a persuasive, 3 valid, and specific reason based on contrary evidence. 4 Second, the ALJ rejected the VA disability ratings because “they did not 5 provide an individualized assessment that focuses on a claimant’s ability to 6 perform work in the national economy.” Tr. 34. This is just a different way of 7 stating that the rules and findings of the VA and the SSA differ, which is not a 8 valid consideration. See McCarty, 298 F.3d at 1076; see also Luther v. Berryhill, 9 891 F.3d 872, 877 (9th Cir. 2018); Hiler, 687 F.3d at 1212; Valentine, 574 F.3d at 10 695. The ALJ’s finding is contrary to precedent and is therefore not valid or 11 persuasive. 12 13 14 2 The ALJ devoted several paragraphs to discussing the differences between the 15 VA and Social Security disability programs and cites McCartey for the finding that 16 “the two agencies have different criteria for determining disability.” Tr. 33-34 17 (quoting 298 F.3d at 1076). To the extent that the ALJ intended to reject the VA 18 disability rating on that basis generally, the ALJ’s finding is erroneous under 19 McCartey. 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 12 1 Defendant contends the ALJ cited additional reasons constituting persuasive, 2 valid, and specific reasons for rejecting the VA rating. ECF No. 16 at 10. 3 Specifically, Defendant asserts the ALJ “discounted [the VA] ratings for the same 4 reason that applied to Dr. Rue’s opinions.” ECF No. 16 at 10 (citing Tr. 32-33). 5 Indeed, the ALJ cited the longitudinal history, the objective clinical findings, and 6 her performance on physical examinations “set forth above” as inconsistent with 7 the VA rating “to the extent they reflect more severe restrictions.” Tr. 32. As 8 discussed infra, the ALJ’s reasons for rejecting Dr. Rue’s opinions are based at 9 least in part on a selective reading and mischaracterization of the record of the 10 record, and are therefore not legally sufficient reasons for rejecting the VA rating. 11 Furthermore, even if the ALJ’s reasoning was adequate to support rejecting Dr. 12 Rue’s opinions and the reasons could be considered “valid” reasons, there is no 13 indication that the ALJ considered these reasons in evaluating the VA rating in a 14 sufficiently specific or persuasive manner. 15 The ALJ gave no weight to the VA disability rating without citing 16 persuasive, valid and specific reasons for doing so. The ALJ cited no evidence 17 contrary to the rating; in fact, the ALJ indicated that “more weight” was given to 18 the objective findings contained in VA treatment notes, which presumably form 19 the basis of the rating. The ALJ’s reasons for rejecting the VA rating are 20 essentially variations on differences in rules between the VA and the Social 21 Security Administration, which is not consistent with controlling case law in the ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 13 1 Ninth Circuit. Thus, the ALJ did not properly consider the VA rating and the 2 matter must be remanded for reconsideration. 3 B. Medical Opinion Evidence 4 Plaintiff contends the ALJ improperly rejected the medical opinion of her 5 treating physician, Katina Rue, D.O. ECF No. 12 at 7-12. 6 There are three types of physicians: “(1) those who treat the claimant 7 (treating physicians); (2) those who examine but do not treat the claimant 8 (examining physicians); and (3) those who neither examine nor treat the claimant 9 but who review the claimant’s file (nonexamining or reviewing physicians).” 10 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (brackets omitted). 11 “Generally, a treating physician’s opinion carries more weight than an examining 12 physician’s, and an examining physician’s opinion carries more weight than a 13 reviewing physician’s.” Id. “In addition, the regulations give more weight to 14 opinions that are explained than to those that are not, and to the opinions of 15 specialists concerning matters relating to their specialty over that of 16 nonspecialists.” Id. (citations omitted). 17 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 18 reject it only by offering “clear and convincing reasons that are supported by 19 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 20 “However, the ALJ need not accept the opinion of any physician, including a 21 treating physician, if that opinion is brief, conclusory and inadequately supported ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 14 1 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 2 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or 3 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 4 may only reject it by providing specific and legitimate reasons that are supported 5 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. Chater, 81 6 F.3d 821, 830-31 (9th Cir. 1995)). 7 In January 2014, Dr. Rue completed a Medical Report form, noting she had 8 been treating Plaintiff since 2011. Tr. 597. She listed diagnoses of polyarthralgia 9 with abnormal ANA titer, fibromyalgia, chronic fatigue syndrome, and PTSD. Tr. 10 597. Dr. Rue noted Plaintiff’s symptoms and signs of swollen joints and 11 chronically elevated ANA titer. Tr. 597. She opined Plaintiff needs to lie down 12 every day for hours at a time due to pain and exhaustion which is worse after any 13 sort of activity or outing. Tr. 597. Plaintiff’s medications caused or could cause 14 narcolepsy, drowsiness, or poor reaction time. Tr. 597. Dr. Rue indicated that 15 Plaintiff is unable to tolerate activity or pressure and physical or emotional stress 16 worsens her daily functioning. Tr. 598. Dr. Rue opined Plaintiff would miss four 17 or more days of work per month, likely even a week at a time. Tr. 598. She also 18 assessed Plaintiff as severely limited, meaning unable to lift at least two pounds or 19 unable to stand and/or walk. Tr. 598. Additionally, during an office visit on 20 January 10, 2014, Dr. Rue opined, “I do not feel that she [is] in any condition to 21 work.” Tr. 602. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 15 1 In July 2014, Dr. Rue completed a second Medical Report form. Tr. 682-83. 2 She listed fibromyalgia and abnormal ANA as the diagnoses, noting abnormal 3 exam and laboratory findings. Tr. 682. Dr. Rue indicated Plaintiff needs to lie 4 down during the day for two to 16 hours due to pain and fatigue, and that she had 5 been treated with physical therapy, opiate and nonopiate pain medications, and by 6 referral to specialists. Tr. 682. She again indicated work on a regular and 7 continuous basis would cause Plaintiff’s condition to deteriorate, and that she 8 would miss work four or more days per month. Tr. 683. The ALJ gave little 9 weight to Dr. Rue’s opinions. Tr. 31-32. 10 Because Dr. Rue’s opinions were contradicted by the opinion of Gordon 11 Hale, M.D., a reviewing physician, Tr. 115-17, the ALJ was required to provide 12 specific and legitimate reasons for rejecting Dr. Rue’s opinions. Bayliss, 427 F.3d 13 at 1216. 14 The ALJ rejected Dr. Rue’s opinions because they “are inconsistent with the 15 claimant’s longitudinal history, the objective clinical findings, and her performance 16 on physical examinations.” Tr. 32. The consistency of a medical opinion with the 17 record as a whole is a relevant factor in evaluating a medical opinion. Lingenfelter 18 v. Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007); Orn v. Astrue, 495 F.3d 625, 631 19 (9th Cir. 2007). A medical opinion may also be rejected if it is unsupported by 20 medical findings. Bray, 554 F.3d at 1228; Batson v. Comm’r of Soc. Sec. Admin., 21 359 F.3d 1190, 1195 (9th Cir. 2004); Thomas v. Barnhart, 278 F.3d 947, 957 (9th ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 16 1 Cir. 2002); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); Matney v. 2 Sullivan, 981 F.2d 1016, 1019 (9th Cir.1992). 3 The ALJ cited a number of treatment records which the ALJ found are 4 inconsistent with Dr. Rue’s opinion. Tr. 32-33. The ALJ noted records showing 5 she has “consistently been neurologically intact with 5/5 strength throughout,” and 6 a 2015 office record indicating largely unremarkable review of systems with equal 7 and adequate strength in the upper and lower extremities, and a smooth gait that 8 was slightly unsteady with Romberg testing. Tr. 32 (citing Tr. 377-79, 588-90, 9 830-32). The ALJ also cited records indicating Plaintiff benefitted from 10 medication and a left knee injection, and that she acknowledged her fibromyalgia 11 was “well-controlled” in mid-2014. Tr. 33 (citing Tr. 402-04, 448, 604, 748-49, 12 926). 13 Plaintiff contends the ALJ’s “overly selective version of the record 14 mischaracterizes the record as a whole,” and that the records cited by the ALJ do 15 not contradict Dr. Rue’s opinions. ECF No. 12 at 8. An ALJ should “consider a 16 longitudinal record whenever possible because the symptoms of FM can wax and 17 wane so that a person may have ‘bad days and good days.’” Social Security 18 Ruling (S.S.R.) 12-2. The Court agrees with Plaintiff that the ALJ selectively 19 considered the record. For example, an office visit record from Dr. Rue dated May 20 2013 and cited by the ALJ mentions that a prednisone burst three months prior 21 “helped significantly,” which is part of the ALJ’s basis for finding that Plaintiff ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 17 1 benefitted from medication. Tr. 33, 402. However, Dr. Rue indicated that despite 2 the prednisone burst, Plaintiff “continued to have hand swelling.” Tr. 402. 3 Plaintiff had also been maintained on prednisone but was still having swelling in 4 the “MCPs” (metacarpophalangeal joints). Tr. 402. Additionally, Plaintiff was 5 “crying at the drop of a hat” because she “just can’t function the way she is.” Tr. 6 402. She reported pain and was so fatigued that she could “sleep for an entire day 7 after she overdoes it.” Tr. 402. This record actually supports Dr. Rue’s opinions 8 rather than undermines it. 9 Similarly, the ALJ cited an August 2013 note by Dr. Rue that Plaintiff felt 10 the current morphine dose was “really making a difference for her pain level.” Tr. 11 604. However, the ALJ failed to recognize that Plaintiff also reported that she had 12 not been “up and mobile” at the same time, which is actually consistent with Dr. 13 Rue’s opinions that she needs to lie down frequently. Tr. 597, 604, 682. 14 The ALJ also noted a September 2014 record indicating Plaintiff called her 15 treating provider to report that she was “moving things in the garage” and had 16 reinjured her left knee” Tr. 834. There are no other details provided. The ALJ 17 found Plaintiff’s report that she was “moving things in the garage” is inconsistent 18 with Dr. Rue’s finding that Plaintiff is unable to lift two pounds or to stand/walk, 19 Tr. 598. However, the inconsistency, if any, applies only Dr. Rue’s January 2014 20 opinion and not the July 2014 opinion, because Dr. Rue did not opine about 21 Plaintiff’s work level in July 2014. Tr. 598. It is also noted that “moving things in ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 18 1 the garage” resulted in Plaintiff reinjuring her knee, suggesting that she was not, in 2 fact, capable of successfully engaging in that activity. Further, this one instance of 3 an activity which is not explained or described in any detail is not sufficient to 4 justify rejecting the opinion of a long-term treating physician. 5 While a few of the records cited by the ALJ may support the ALJ’s 6 conclusions, the unsupported findings discussed supra and elsewhere in this 7 decision call into question the ALJ’s interpretation of the evidence in general and 8 the record overall. The ALJ should reconsider Dr. Rue’s opinion as part of an 9 overall reevaluation of the record on remand. 10 C. Plaintiff’s Symptom Claims 11 Plaintiff contends the ALJ improperly rejected her symptom claims. ECF 12 No. 12 at 14-18. An ALJ engages in a two-step analysis to determine whether a 13 claimant’s testimony regarding subjective pain or symptoms is credible. “First, the 14 ALJ must determine whether there is objective medical evidence of an underlying 15 impairment which could reasonably be expected to produce the pain or other 16 symptoms alleged.” Molina, 674 F.3d at 1112 (internal quotation marks omitted). 17 “The claimant is not required to show that her impairment could reasonably be 18 expected to cause the severity of the symptom she has alleged; she need only show 19 that it could reasonably have caused some degree of the symptom.” Vasquez v. 20 Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 19 1 Second, “[i]f the claimant meets the first test and there is no evidence of 2 malingering, the ALJ can only reject the claimant’s testimony about the severity of 3 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 4 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (internal 5 citations and quotations omitted). “General findings are insufficient; rather, the 6 ALJ must identify what testimony is not credible and what evidence undermines 7 the claimant’s complaints.” Id. (quoting Lester, 81 F.3d at 834); see also Thomas, 8 278 F.3d at 958 (“[T]he ALJ must make a credibility determination with findings 9 sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily 10 discredit claimant’s testimony.”). “The clear and convincing [evidence] standard 11 is the most demanding required in Social Security cases.” Garrison v. Colvin, 759 12 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 13 F.3d 920, 924 (9th Cir. 2002)). 14 In assessing a claimant’s symptom complaints, the ALJ may consider, inter 15 alia, (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the 16 claimant’s testimony or between her testimony and her conduct; (3) the claimant’s 17 daily living activities; (4) the claimant’s work record; and (5) testimony from 18 physicians or third parties concerning the nature, severity, and effect of the 19 claimant’s condition. Thomas, 278 F.3d at 958-59. 20 Here, the ALJ found Plaintiff’s medically determinable impairments could 21 reasonably be expected to produce the symptoms alleged, but Plaintiff’s statements ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 20 1 concerning the intensity, persistence, and limiting effects of these symptoms are 2 not entirely credible. Tr. 27. 3 First, the ALJ found the medical evidence does not substantiate the severity 4 of Plaintiff’s allegations of disabling limitations. Tr. 27. An ALJ may not 5 discredit a claimant’s pain testimony and deny benefits solely because the degree 6 of pain alleged is not supported by objective medical evidence. Rollins v. 7 Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 8 346-47 (9th Cir. 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). 9 However, the medical evidence is a relevant factor in determining the severity of a 10 claimant’s pain and its disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. § 11 404.1529(c)(2) (2011). Minimal objective evidence is a factor which may be 12 relied upon in discrediting a claimant’s testimony, although it may not be the only 13 factor. See Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). 14 The ALJ discussed portions of the medical record, but did not explain how 15 Plaintiff’s pain testimony is undermined by the objective evidence. Tr. 27-28. 16 Even assuming the ALJ’s conclusions suggesting the record does not support 17 Plaintiff’s complaints are based on substantial evidence, the lack of objective 18 evidence cannot be the only reason supporting a finding regarding Plaintiff’s 19 symptom complaints. See Burch, 400 F.3d at 680. As discussed infra, the ALJ’s 20 other reasons for discounting Plaintiff’s symptom complaints are not supported by 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 21 1 substantial evidence. Because the lack of objective evidence cannot be the only 2 basis for rejecting symptom complaints, this reason is insufficient. 3 Second, the ALJ found Plaintiff received unemployment benefits for a 4 significant period of time during which she claims she was disabled. Tr. 29. 5 Receipt of unemployment benefits may cast doubt on a claim of disability, as it 6 shows that an applicant holds herself out as capable of working. Ghanim, 763 F.3d 7 at 1165; Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir. 1988). Notwithstanding, 8 if the record does not establish whether the claimant held herself out as available 9 for full-time or part-time work, receipt of unemployment benefits may not be 10 inconsistent with disability allegations. Carmickle v. Comm’r of Soc. Sec. Admin., 11 533 F.3d 1155, 1161-62 (9th Cir. 2008). 12 The ALJ noted Plaintiff testified that every week she filed her 13 unemployment claim and truthfully answered that she was physically able and 14 available for work. Tr. 31, 60. The ALJ also observed Plaintiff did not submit a 15 physician’s certificate restricting her hours, functions, or potential occupations 16 regarding her unemployment claim. Tr. 30-31, 61. Although the ALJ stated he 17 was “not persuaded by her testimony that she could only do part-time work” and 18 discussed the “part time eligible” provisions of state regulations regarding 19 unemployment compensation, Tr. 30, the ALJ did not ask Plaintiff at the hearing 20 whether she held herself out as available for full-time or part-time work, and there 21 is no evidence to that effect in the record. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 22 1 Additionally, when the ALJ asked about the conflict between Plaintiff’s 2 statements for unemployment that she was physically able to work concurrent with 3 her disability claim in which she asserted she is totally disabled, Plaintiff 4 responded, “I didn’t have a choice.” Tr. 64. She testified that, “we had no money 5 coming in except for unemployment,” and that she would have worked despite her 6 pain if she had gotten a job because, “You have to do what you can to provide for 7 your family[.]” Tr. 68. The record indicates that Plaintiff’s certifications for 8 unemployment benefits were a financial necessity rather than a reflection of her 9 impression of her true capacity to work. Accordingly, and because the ALJ’s 10 inquiry about full-time or part-time work was insufficient, Plaintiff’s receipt of 11 unemployment benefits does not reasonably support the ALJ’s decision to give less 12 weight to Plaintiff’s testimony. 13 Third, the ALJ found the record contains factual inconsistencies. Tr. 30. In 14 evaluating a Plaintiff’s symptom complaints, the ALJ may rely on ordinary 15 techniques of credibility evaluation. Smolen v. Chater, 80 F.3d 1273, 1284 (9th 16 Cir. 1996). A strong indicator of credibility is the consistency of the individual’s 17 own statements made in connection with the claim for disability benefits and 18 statements made to medical professionals. S.S.R. 96-7p. The ALJ found 19 inconsistencies in numerous statements regarding Plaintiff’s care for her family, 20 pet care, driving, shopping, meal preparation, socializing, and general activities. 21 Tr. 31 (citing 264-71, 306-14, 583). The purported inconsistencies involve ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 23 1 statements made in function reports completed by Plaintiff in August 2013 and 2 March 2014, and at a psychological evaluation in October 2013, as well as at the 3 hearing in September 2015. Tr. 31, 61-63, 265, 267-68, 271, 308-11, 582-83. 4 Some of the ALJ’s findings regarding inconsistencies involve activities that 5 do not suggest greater capacity than alleged. For example, in August 2013 6 Plaintiff indicated she cared for pets including two dogs, two fish, two guinea pigs, 7 and a kitten; whereas by March 2014 Plaintiff reported her family takes care of the 8 pets. Tr. 308. In some cases, caring for pets such as horses or other larger or more 9 demanding animals might reasonably suggest activity inconsistent with disability. 10 In this case, caring for a few household pets is not compelling evidence of 11 nondisability. And, although the ALJ cited Plaintiff’s pet care to illustrate 12 inconsistencies in Plaintiff’s reporting, Plaintiff’s report of reduced capabilities 13 regarding activities such as shopping, cooking, socializing, and pet care in March 14 2014 or at the September 2015 hearing is entirely consistent with her claim that her 15 condition declined over time. Tr. 63-64, 68, 292. These are not inconsistencies 16 which reflect negatively on Plaintiff’s symptom complaints. 17 The ALJ also made numerous findings about the physical processes and 18 brain functions required to drive and concluded that Plaintiff’s ability to drive 19 indicates a level of functioning in excess of that alleged by Plaintiff. Tr. 31. The 20 ALJ’s statements are without basis in the record and some are even questionable, 21 such as the assertion that driving requires social interaction. Tr. 31. Further, the ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 24 1 ALJ’s failure to identify which of Plaintiff’s allegations are inconsistent with the 2 many functions required by driving and the general dismissal of Plaintiff’s 3 testimony on this basis is insufficient. See Holohan, 246 F.3d at 1208 (The ALJ 4 Amust specifically identify the testimony”found to be not credible and “must 5 explain what evidence undermines the testimony.@ ). 6 Based on the foregoing, the ALJ’s determination that Plaintiff’s symptom 7 complaints are less than fully credible is not legally sufficient. The matter must be 8 remanded for reconsideration of Plaintiff’s symptom complaints in addition to 9 other errors and insufficiencies discussed throughout this decision. 10 D. Lay Witness 11 Plaintiff contends the ALJ erroneously rejected the lay witness statement of 12 Eric T., Plaintiff’s husband. ECF No. 12 at 18-20. An ALJ must consider the 13 testimony of lay witnesses in determining whether a claimant is disabled. Stout v. 14 Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006). Lay witness 15 testimony regarding a claimant’s symptoms or how an impairment affects ability to 16 work is competent evidence and must be considered by the ALJ. If lay testimony 17 is rejected, the ALJ “‘must give reasons that are germane to each witness.’” 18 Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir, 1996) (citing Dodrill v. Shalala, 19 12 F.3d 915, 919 (9th Cir. 1993)). 20 In March 2014, Plaintiff’s husband completed a Function Report form 21 indicating Plaintiff has difficulty standing, sitting, and walking and experiences ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 25 1 problems with vision, extreme fatigue, lifting, and balance. Tr. 298-305. He 2 reported that Plaintiff spends most of the day lying down and frequently does not 3 get up to eat or drink. Tr. 299. Plaintiff’s husband noted some difficulties with 4 personal care, such as difficulty with shoes and socks and pain in her shoulders 5 when cleaning and grooming her hair. Tr. 299. He reported she does very little 6 cooking and occasional chores but only for a few minutes at a time and maybe one 7 time per month. Tr. 300. He estimated she gets a few groceries maybe once a 8 week for about 20 minutes at a time. Tr. 301. She spends time with others about 9 once a month watching movies, talking, or playing cards, but does not attend social 10 events. Tr. 302-03. He indicated she has problems in almost every functional area 11 and can lift five pounds maximum, walks only for extremely short distances, falls 12 asleep during tasks, cannot stand for very long, and has lost dexterity in her hands. 13 Tr. 303. She follows one-step directions well, but a large amount of information 14 confuses her. Tr. 304. She cries and sleeps in response to too much stress. Tr. 15 304. 16 The ALJ found Plaintiff’s husband’s observations are similar to Plaintiff’s 17 complaints of mobility problems, fatigue, and poor vision, and gave little weight to 18 the his statements for the same reasons given for rejecting Plaintiff’s testimony 19 regarding her symptoms: longitudinal treatment history, objective clinical 20 findings, and her performance on physical and mental status exams; her collection 21 of unemployment benefits; and factual inconsistencies in the record. Tr. 34. As ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 26 1 discussed supra, the ALJ’s findings regarding Plaintiff’s symptom complaints are 2 legally insufficient. Thus, the application of those findings to the statement of 3 Plaintiff’s husband is in question. On remand, the ALJ should reconsider the lay 4 witness statement. 5 6 CONCLUSION After reviewing the record and the ALJ’s findings, the Court concludes the 7 ALJ’s decision is not supported by substantial evidence and free of harmful legal 8 error. The ALJ did not properly consider Plaintiff’s VA disability rating. The 9 ALJ’s consideration of Plaintiff’s symptom complaints and her husband’s 10 statement was insufficient. Because of insufficiencies in the findings throughout 11 the record, the ALJ’s conclusions regarding Dr. Rue’s opinion are also in question. 12 On remand, the ALJ should reconsider the evidence and conduct a new sequential 13 evaluation, giving weight and consideration to the evidence as is appropriate. The 14 opinion of a medical expert may be helpful. 15 Accordingly, IT IS HEREBY ORDERED: 16 1. 17 18 GRANTED. 2. 19 20 Plaintiff’s Motion for Summary Judgment, ECF No. 12, is Defendant’s Motion for Summary Judgment, ECF No. 16, is DENIED. 3. An application for attorney fees may be filed by separate motion. 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 27 1 The District Court Executive is directed to file this Order and forward copies 2 to counsel. Judgment shall be entered for Plaintiff and the file shall be CLOSED. 3 4 5 DATED October 9, 2018. Rosanna Malouf Peterson ROSANNA MALOUF PETERSON United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 28

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