Davis v. Kijakazi, No. 1:2021cv03147 - Document 13 (E.D. Wash. 2023)
Court Description: ORDER GRANTING 10 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING 11 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. File is CLOSED. Signed by Senior Judge Lonny R. Suko. (TNC, Case Administrator)
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Davis v. Kijakazi Doc. 13 Case 1:21-cv-03147-LRS ECF No. 13 filed 09/21/23 PageID.1210 Page 1 of 22 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Sep 21, 2023 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 BONNIE D., 1 8 No: 1:21-cv-03147-LRS Plaintiff, 9 v. 10 11 KILOLO KIJAKAZI, COMMISSIONER OF SOCIAL SECURITY, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 12 Defendant. 13 14 BEFORE THE COURT are the parties’ cross-motions for summary judgment. 15 ECF Nos. 10, 11. This matter was submitted for consideration without oral 16 argument. Plaintiff is represented by attorney Christopher H. Dellert. Defendant is 17 represented by Special Assistant United States Attorney Joseph J. Langkamer. The 18 Court, having reviewed the administrative record and the parties’ briefing, is fully 19 20 1 21 last initial in order to protect privacy. See LCivR 5.2(c). The court identifies a plaintiff in a social security case only by the first name and ORDER - 1 Dockets.Justia.com Case 1:21-cv-03147-LRS ECF No. 13 filed 09/21/23 PageID.1211 Page 2 of 22 1 informed. For the reasons discussed below, Plaintiff’s Motion, ECF No. 10, is 2 granted and Defendant’s Motion, ECF No. 11, is denied. 3 4 JURISDICTION Plaintiff Bonnie D. (Plaintiff), filed for disability insurance benefits (DIB) on 5 March 29, 2019, alleging an onset date of September 1, 2013, which was amended to 6 September 8, 2016, at the hearing. Tr. 40, 155-61. Benefits were denied initially, 7 Tr. 91-93, and upon reconsideration, Tr. 99-105. Plaintiff appeared at a hearing 8 before an administrative law judge (ALJ) on January 21, 2021. Tr. 35-63. On 9 March 25, 2021, the ALJ issued an unfavorable decision, Tr. 12-34, and the Appeals 10 Council denied review, Tr. 1-6. The matter is now before this Court pursuant to 42 11 U.S.C. § 405(g). 12 13 BACKGROUND The facts of the case are set forth in the administrative hearings and 14 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner, and 15 are therefore only summarized here. 16 Plaintiff was born in 1963 and was 57 years old at the time of the hearing. Tr. 17 See Tr. 155. She has work experience as a caregiver, housecleaner, dog washer, and 18 security guard. Tr. 43, 50-51. 19 The walking and standing she did as a security guard aggravated a prior groin 20 injury. Tr. 46. She started losing weight, having shakiness, having severe 21 migraines, had no energy, her joints hurt, she had difficulty with her bladder and ORDER - 2 Case 1:21-cv-03147-LRS ECF No. 13 filed 09/21/23 PageID.1212 Page 3 of 22 1 bowel, and back pain. Tr. 46. She had rheumatoid arthritis, nodules on her throat, 2 and emphysema. Tr. 46. Her husband did all the household chores. Tr. 47-48. She 3 had difficulty standing up and getting around. Tr. 48. The pain in her back with 4 twisting and moving was unbearable. Tr. 48. She has COPD which causes 5 shortness of breath. Tr. 52-53. She had difficulty focusing and remembering things. 6 Tr. 53. 7 8 9 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 10 limited; the Commissioner’s decision will be disturbed “only if it is not supported by 11 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 12 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a reasonable 13 mind might accept as adequate to support a conclusion.” Id. at 1159 (quotation and 14 citation omitted). Stated differently, substantial evidence equates to “more than a 15 mere scintilla[,] but less than a preponderance.” Id. (quotation and citation omitted). 16 In determining whether the standard has been satisfied, a reviewing court must 17 consider the entire record as a whole rather than searching for supporting evidence in 18 isolation. Id. 19 In reviewing a denial of benefits, a district court may not substitute its 20 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 1156 21 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one ORDER - 3 Case 1:21-cv-03147-LRS ECF No. 13 filed 09/21/23 PageID.1213 Page 4 of 22 1 rational interpretation, [the court] must uphold the ALJ’s findings if they are 2 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 3 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an ALJ’s 4 decision on account of an error that is harmless.” Id. An error is harmless “where it 5 is inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 1115 6 (quotation and citation omitted). The party appealing the ALJ’s decision generally 7 bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 8 396, 409-10 (2009). 9 FIVE-STEP EVALUATION PROCESS 10 A claimant must satisfy two conditions to be considered “disabled” within the 11 meaning of the Social Security Act. First, the claimant must be “unable to engage in 12 any substantial gainful activity by reason of any medically determinable physical or 13 mental impairment which can be expected to result in death or which has lasted or 14 can be expected to last for a continuous period of not less than twelve months.” 42 15 U.S.C. §§ 423(d)(1)(A). Second, the claimant’s impairment must be “of such 16 severity that he is not only unable to do his previous work[,] but cannot, considering 17 his age, education, and work experience, engage in any other kind of substantial 18 gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). 19 The Commissioner has established a five-step sequential analysis to determine 20 whether a claimant satisfies the above criteria. See 20 C.F.R. § 404.1520(a)(4)(i)- 21 (v). At step one, the Commissioner considers the claimant’s work activity. 20 ORDER - 4 Case 1:21-cv-03147-LRS ECF No. 13 filed 09/21/23 PageID.1214 Page 5 of 22 1 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in “substantial gainful 2 activity,” the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 3 404.1520(b). 4 If the claimant is not engaged in substantial gainful activity, the analysis 5 proceeds to step two. At this step, the Commissioner considers the severity of the 6 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers from 7 “any impairment or combination of impairments which significantly limits [his or 8 her] physical or mental ability to do basic work activities,” the analysis proceeds to 9 step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment does not satisfy 10 this severity threshold, however, the Commissioner must find that the claimant is not 11 disabled. 20 C.F.R. § 404.1520(c). 12 At step three, the Commissioner compares the claimant’s impairment to 13 severe impairments recognized by the Commissioner to be so severe as to preclude a 14 person from engaging in substantial gainful activity. 20 C.F.R. § 15 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the 16 enumerated impairments, the Commissioner must find the claimant disabled and 17 award benefits. 20 C.F.R. § 404.1520(d). 18 If the severity of the claimant’s impairment does not meet or exceed the 19 severity of the enumerated impairments, the Commissioner must assess the 20 claimant’s “residual functional capacity.” Residual functional capacity (RFC), 21 defined generally as the claimant’s ability to perform physical and mental work ORDER - 5 Case 1:21-cv-03147-LRS ECF No. 13 filed 09/21/23 PageID.1215 Page 6 of 22 1 activities on a sustained basis despite his or her limitations, 20 C.F.R. § 2 404.1545(a)(1), is relevant to both the fourth and fifth steps of the analysis. 3 At step four, the Commissioner considers whether, in view of the claimant’s 4 RFC, the claimant is capable of performing work that he or she has performed in the 5 past (past relevant work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is capable 6 of performing past relevant work, the Commissioner must find that the claimant is 7 not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of performing 8 such work, the analysis proceeds to step five. 9 At step five, the Commissioner should conclude whether, in view of the 10 claimant’s RFC, the claimant is capable of performing other work in the national 11 economy. 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the 12 Commissioner must also consider vocational factors such as the claimant’s age, 13 education and past work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the claimant 14 is capable of adjusting to other work, the Commissioner must find that the claimant 15 is not disabled. 20 C.F.R. § 404.1520(g)(1). If the claimant is not capable of 16 adjusting to other work, analysis concludes with a finding that the claimant is 17 disabled and is therefore entitled to benefits. 20 C.F.R. § 404.1520(g)(1). 18 The claimant bears the burden of proof at steps one through four above. 19 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 20 step five, the burden shifts to the Commissioner to establish that (1) the claimant is 21 capable of performing other work; and (2) such work “exists in significant numbers ORDER - 6 Case 1:21-cv-03147-LRS ECF No. 13 filed 09/21/23 PageID.1216 Page 7 of 22 1 in the national economy.” 20 C.F.R. § 404.1560(c)(2); Beltran v. Astrue, 700 F.3d 2 386, 389 (9th Cir. 2012). 3 ALJ’S FINDINGS 4 At step one, the ALJ found Plaintiff did not engage in substantial gainful 5 activity during the period from her alleged onset date of September 1, 2013, through 6 her date last insured of June 30, 2017. Tr. 17. At step two, the ALJ found that 7 through the date last insured, Plaintiff had the following severe impairments: 8 degenerative disc disease of the lumbar spine, chronic obstructive pulmonary 9 disease, and fibromyalgia. Tr. 18. At step three, the ALJ found that through the 10 date last insured, Plaintiff did not have an impairment or combination of 11 impairments that meets or medically equals the severity of one of the listed 12 impairments. Tr. 20. 13 The ALJ then found that, through the date last insured, Plaintiff had the 14 residual functional capacity to perform light work with the following additional 15 limitations: 16 17 She was limited to occasional climbing of ladders, ropes, and scaffolds, balancing, stooping, kneeling, crouching and crawling. She must avoid concentrated exposure to excessive vibration, hazards, temperature extremes, and pulmonary irritants. 18 Tr. 22. 19 At step four, the ALJ found that through the date last insured, Plaintiff was 20 capable of performing past relevant work. Tr. 27. Thus, the ALJ concluded that 21 Plaintiff was not under a disability, as defined in the Social Security Act, at any time ORDER - 7 Case 1:21-cv-03147-LRS ECF No. 13 filed 09/21/23 PageID.1217 Page 8 of 22 1 from September 1, 2013, the alleged onset date, through June 30, 2017, the date last 2 insured. Tr. 28. 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. 10. 6 Plaintiff raises the following issues for review: 7 1. Whether the ALJ properly considered the medical opinion evidence; and 8 2. Whether the ALJ properly considered Plaintiff’s subjective allegations. 9 ECF No. 10 at 2. 10 11 DISCUSSION A. 12 Medical Opinions For claims filed on or after March 27, 2017, the regulations provide that the 13 ALJ will no longer “give any specific evidentiary weight…to any medical 14 opinion(s)…” Revisions to Rules Regarding the Evaluation of Medical Evidence, 15 2017 WL 168819, 82 Fed. Reg. 5867-88 (Jan. 18, 2017); 20 C.F.R. § 404.1520c. 2 16 2 17 18 19 20 21 Plaintiff argues the “specific and legitimate” standard continues to apply despite the new regulations. ECF No. 12 at 2-6. The Ninth Circuit has concluded that the new regulations displace the “irreconcilable” and “incompatible” specific and legitimate reasons standard. Woods v. Kijakazi, 32 F.4th 785, 790-92 (9th Cir. 2022). Plaintiff discusses Woods but appears to overlook the Court’s conclusion that, “[o]ur requirement that ALJs provide ‘specific and legitimate reasons’ for ORDER - 8 Case 1:21-cv-03147-LRS ECF No. 13 filed 09/21/23 PageID.1218 Page 9 of 22 1 Instead, an ALJ must consider and evaluate the persuasiveness of all medical 2 opinions or prior administrative medical findings from medical sources. 20 C.F.R. § 3 404.1520c(a) and (b). Supportability and consistency are the most important factors 4 in evaluating the persuasiveness of medical opinions and prior administrative 5 findings, and therefore the ALJ is required to explain how both factors were 6 considered. 20 C.F.R. § 404.1520c(b)(2). The ALJ may, but is not required, to 7 explain how other factors were considered. 20 C.F.R. § 404.1520c(b)(2); see 20 8 C.F.R. § 404.1520c(c)(1)-(5). 9 1. Susan Taylor, ARNP 10 In January 2019, Ms. Taylor submitted a letter describing Plaintiff’s current 11 health condition and health history. Tr. 650-51. She noted Plaintiff had been a 12 patient for a long time and has “multiple severe, disabling, chronic, recurring 13 medical conditions,” and listed the following diagnoses: degeneration of the 14 lumbosacral discs, spinal stenosis in the cervical region, fibromyalgia, chronic 15 obstructive pulmonary disease, insomnia, stage II chronic kidney disease, vitamin D 16 deficiency, chronic fatigue, severe migraines, vision problems, hearing problems, 17 18 rejecting a treating or examining doctor's opinion, which stems from the special 19 weight given to such opinions . . . is likewise incompatible with the revised 20 regulations.” Id. at 792. 21 ORDER - 9 Case 1:21-cv-03147-LRS ECF No. 13 filed 09/21/23 PageID.1219 Page 10 of 22 1 major depression, hot flashes, stress incontinence, carpal tunnel syndrome, arthritis, 2 bowel incontinence, cyclic vomiting, chronic pain, apical lung scarring, family 3 history of Agent Orange exposure, and a history of Barrett’s esophagus. Tr. 650. 4 Ms. Taylor opined that Plaintiff is unable to work because her conditions interfere 5 with her ability to remember daily tasks, lift, bend, carry, walk, sit, stand, attend 6 appointments on time, maintain hygiene, communicate with others, and participate 7 in meaningful work. Tr. 650. She also indicated that Plaintiff would be unable to 8 keep appointments. Tr. 650. 9 Plaintiff argues the ALJ improperly failed to consider Ms. Taylor’s 10 statement. ECF No. 10 at 16. The ALJ must articulate how persuasive it finds “all 11 of the medical opinions” from every medical source. 20 C.F.R. § 404.1520c(b). 12 Defendant argues Ms. Taylor’s statement does not constitute a medical opinion and 13 therefore the ALJ did not need to provide any analysis. ECF No. 11 at 17 (citing 14 20 C.F.R. § 404.1520b(c)). A medical opinion is a statement from a medical 15 source about what a claimant can still do despite his or her impairments and 16 whether the claimant has impairment-related limitations or restrictions in the 17 ability to perform the physical, mental, environmental, or other demands of work 18 activities. 20 C.F.R. § 404.1513. Ms. Taylor’s statement that Plaintiff’s symptoms 19 interfere with certain aspects of her physical and mental functioning at least 20 arguably constitutes a medical opinion. However, the ALJ did not discuss or 21 reference her statement anywhere in the decision. Plaintiff’s counsel referred Ms. ORDER - 10 Case 1:21-cv-03147-LRS ECF No. 13 filed 09/21/23 PageID.1220 Page 11 of 22 1 Taylor’s statement twice during the hearing, so the ALJ was on notice that the 2 statement was at least perceived by Plaintiff to be a medical opinion. Tr. 49, 62. 3 Under these circumstances, the ALJ’s failure to comment on Ms. Taylor’s 4 statement or reference it in the decision makes unclear whether the ALJ considered 5 the statement. This matter must be remanded so the ALJ can consider Ms. 6 Taylor’s statement. 7 2. Thomas B. Curtis, M.D. 8 In January 2021, Dr. Curtis completed a “Multiple Impairment Residual 9 Functional Capacity Report” form and listed chronic pain as Plaintiff’s primary 10 diagnosis with other diagnoses of lumbar degenerative disk and joint disease, 11 multiple joint arthritis, cervical spondylosis, peripheral neuropathy, depression, 12 emphysema, and stress. Tr. 821-27. He opined that Plaintiff could sit for one hour 13 and stand/walk for one hour in an eight-hour workday, that her sitting tolerance is 14 about 10 minutes at a time, that she could occasionally lift 0-5 pounds, and that she 15 had moderate limitations for use of the upper extremities. Tr. 823-25. He indicated 16 that work would cause her symptoms to increase; that pain fatigue or other 17 symptoms constantly interfere with attention and concentration; that Plaintiff is 18 incapable of even low stress work; that she needs unscheduled 20-minute breaks 19 several times and hour; and that Plaintiff would always miss work. Tr. 825-26. 20 21 The ALJ found Dr. Curtis’ opinion to be unpersuasive. Tr. 26-27. First, the ALJ found the January 2021 opinion to be unpersuasive because it was formed more ORDER - 11 Case 1:21-cv-03147-LRS ECF No. 13 filed 09/21/23 PageID.1221 Page 12 of 22 1 than four years after the date last insured. Tr. 27. However, the ALJ may not reject 2 an opinion on that basis alone; the question is whether the opinion related back to 3 the relevant period. “We think it is clear that reports containing observations made 4 after the period for disability are relevant to assess the claimant’s disability. It is 5 obvious that medical reports are inevitably rendered retrospectively and should not 6 be disregarded solely on that basis.” Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 7 1988) (internal citations omitted); see Turner v. Comm’r of Soc. Sec. Admin., 613 8 F.3d 1217, 1228-29 (9th Cir. 2010) (“[E]vidence post-dating the [date last insured] 9 is probative of ... pre-[date last insured] disability.”); Lester v. Chater, 81 F.3d 821, 10 832 (9th Cir. 1995) (“‘[M]edical evaluations made after the expiration of a 11 claimant’s insured status are relevant to an evaluation of the preexpiration 12 condition.’”) (quoting Smith, 849 F.2d at 1225); see also Svaldi v. Berryhill, 720 F. 13 App’x 342, 343-44 (9th Cir. 2017) (indicating that medical opinion issued after the 14 DLI should be considered because it referred to the chronic condition and symptoms 15 during the relevant period); Morgan v. Colvin, No. 6:12-CV-1235-AA, 2013 WL 16 6074119, at *10 (D. Or. Nov. 13, 2013) (affirming rejection of a treating medical 17 opinion when it was completed years after the DLI and was not offered as 18 retrospective analysis); Capobres v. Astrue, No. CV 1:09-682-REB, 2011 WL 19 1114256 (D. Idaho Mar. 25, 2011) (rejecting opinion because it was outside relevant 20 time period where the opinion was not offered as retrospective to the relevant time 21 ORDER - 12 Case 1:21-cv-03147-LRS ECF No. 13 filed 09/21/23 PageID.1222 Page 13 of 22 1 period). This was not a legitimate basis for rejecting Dr. Curtis’ opinion without 2 evaluating whether it related back to the relevant period. 3 The ALJ also found the physical and mental imitations assessed by Dr. Curtis 4 “contrast[] sharply” with Plaintiff’s essentially normal presentation at appointments, 5 statements about improved symptoms and functioning with medication, and her 6 daily activities and work activity as a security guard. Tr. 27. However, the ALJ did 7 not explain how supportability and consistency were considered as required by the 8 regulations. 20 C.F.R. § 404.1520c(b)(2). The ALJ’s explanation for finding Dr. 9 Curtis’ opinion unpersuasive is therefore legally insufficient. On remand, the ALJ 10 should reevaluate Dr. Curtis’ opinion and explain how supportability and 11 consistency factor into the persuasiveness of the opinion. 12 B. 13 Symptom Testimony An ALJ engages in a two-step analysis to determine whether a claimant’s 14 testimony regarding subjective pain or symptoms is credible. “First, the ALJ must 15 determine whether there is objective medical evidence of an underlying impairment 16 which could reasonably be expected to produce the pain or other symptoms alleged.” 17 Molina, 674 F.3d at 1112 (internal quotation marks omitted). “The claimant is not 18 required to show that her impairment could reasonably be expected to cause the 19 severity of the symptom she has alleged; she need only show that it could reasonably 20 have caused some degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 21 (9th Cir. 2009) (internal quotation marks omitted). ORDER - 13 Case 1:21-cv-03147-LRS 1 ECF No. 13 filed 09/21/23 PageID.1223 Page 14 of 22 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 ALJ 6 must identify what testimony is not credible and what evidence undermines the 7 claimant’s complaints.” Id. (quoting Lester, 81 F.3d at 834); see also Thomas v. 8 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he ALJ must make a credibility 9 determination with findings sufficiently specific to permit the court to conclude that 10 the ALJ did not arbitrarily discredit claimant’s testimony.”). “The clear and 11 convincing [evidence] standard is the most demanding required in Social Security 12 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 13 Comm’r of Soc. Sec. Admin., 278 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 his or her testimony and his or her conduct; (3) the 17 claimant’s daily living activities; (4) the claimant’s work record; and (5) testimony 18 from physicians or third parties concerning the nature, severity, and effect of the 19 claimant’s condition. Thomas, 278 F.3d at 958-59. 20 21 The ALJ gave five reasons for giving less weight to Plaintiff’s symptom allegations: (1) her allegations are out of proportion to the objective findings; (2) ORDER - 14 Case 1:21-cv-03147-LRS ECF No. 13 filed 09/21/23 PageID.1224 Page 15 of 22 1 Plaintiff continued smoking cigarettes and marijuana despite the recommendation of 2 her treating providers that she stop; (3) the longitudinal record does not corroborate 3 Plaintiff’s symptom claims; (4) Plaintiff stopped working for reasons other than her 4 impairments; and (5) Plaintiff’s use of a wheelchair is inconsistent with the record. 5 Tr. 23-26. 6 First, in evaluating the objective evidence, Plaintiff asserts the ALJ incorrectly 7 reported the results of her March 2020 MRI of the lumbar spine. ECF No. 10 at 7. 8 The ALJ stated the March 2020 MRI showed “mild to moderate degenerative disc 9 disease of the lumbar spine but only mild stenosis and mild abutment of sacroiliac 10 (SI) nerve roots.” Tr. 23 (citing Tr. 829-30, 1063-64). The MRI findings actually 11 state: “[m]ild to moderate lower lumbar spine degenerative changes, including mild 12 central canal stenosis at L5-S1 with disc abutment of bilateral descending S1nerve 13 roots.” Tr. 829. Plaintiff is correct that “mild” is not specifically used to describe 14 the disc abutment of the nerve roots, although it would certainly be reasonable to 15 read “mild” as modifying the entire finding of “canal stenosis at L5-S1 with disc 16 abutment of bilateral descending S1 nerve roots.” However, since this matter is 17 remanded on other grounds, the ALJ should reevaluate this finding to ensure that the 18 evidence is not overstated or misstated. 19 Plaintiff also argues the ALJ improperly considered the lack of pneumothorax 20 in evaluating a chest CT. ECF No. 10 at 8. The ALJ noted that March 2014 chest 21 images showed significant bronchial wall thickening and pleural effusion but no ORDER - 15 Case 1:21-cv-03147-LRS ECF No. 13 filed 09/21/23 PageID.1225 Page 16 of 22 1 pneumothorax. Tr. 23 (citing Tr. 445). The CT report includes findings of 2 “[b]ronchial wall thickening is noted throughout both lungs,” and “[t]here is no 3 significant pleural effusion. No pneumothorax is seen.” Tr. 445. Plaintiff argues 4 that a lack of pneumothorax is an insignificant finding since she did not allege a 5 collapsed lung. ECF No. 10 at 8. Although in the context of all of the findings cited 6 by the ALJ regarding Plaintiff’s lung condition, Tr. 23 (citing 436-38, 449, 515, 522- 7 23, 635, 667-68), this is a nominal finding and not inaccurate, Plaintiff’s point is 8 well-taken. On remand, the ALJ should ensure that irrelevant findings are not used 9 to bolster an otherwise well-supported conclusion. Additionally, the ALJ 10 inaccurately reported pleural effusion was found when “no significant pleural 11 effusion” was noted. Tr. 23, 445. The ALJ should reevaluate the objective evidence 12 to make sure it is accurately considered. 13 Plaintiff also argues the ALJ failed to properly consider her fibromyalgia 14 symptoms. ECF No. 10 at 10. Defendant argues that the ALJ discussed Plaintiff’s 15 pain, ECF No. 11 at 9, but the ALJ did not consider the unique nature of 16 fibromyalgia and did not discuss SSR 12-2p. See Social Security Ruling 12-2p, 17 2012 WL 3104869 (effective July 25, 2012). Fibromyalgia is a disease that eludes 18 objective measurement. Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004). 19 “[A] person with fibromyalgia may have ‘muscle strength, sensory functions, and 20 reflexes [that] are normal.’” Revels v. Berryhill, 874 F.3d 648, 663 (9th Cir. 2017). 21 Normal objective examination results can be “perfectly consistent with debilitating ORDER - 16 Case 1:21-cv-03147-LRS ECF No. 13 filed 09/21/23 PageID.1226 Page 17 of 22 1 fibromyalgia.” Id. at 666. While Defendant is correct that the ALJ’s discussion of 2 muscle strength, sensory functions, and reflexes could be relevant to Plaintiff’s other 3 conditions, ECF No. 11 at 9, on remand, the ALJ should explain how fibromyalgia 4 was evaluated in light of its unique characteristics. 5 Plaintiff also argues the ALJ’s “bald assertion” that Plaintiff’s allegations 6 were out of proportion to the objective findings was not specific enough. ECF No. 7 10 at 6 (citing Lambert v. Saul, 980 F.3d 1266, 1278 (9th Cir. 2020). This Court 8 concludes the ALJ’s discussion of the evidence is specific enough to allow the 9 reader to determine what evidence was considered in evaluating Plaintiff’s 10 symptom claims. As the Lambert court noted, “Our cases do not require ALJs to 11 perform a line-by-line exegesis of the claimant’s testimony, nor do they require 12 ALJs to draft dissertations when denying benefits.” Id. at 1277. However, since 13 the ALJ must reassess the objective evidence as discussed above, the ALJ should 14 ensure that the findings regarding objective evidence as it relates to Plaintiff’s 15 testimony are analytical and not just “non-specific conclusions” or a “relatively 16 detailed overview” of the evidence. Id. at 1277-78; see Lewin v. Schweiker, 654 17 F.2d 631, 635 (9th Cir. 1981) (“(A)n examiner's findings should be as 18 comprehensive and analytical as feasible . . . so that a reviewing court may know 19 the basis for the decision.” (quoting Baerga v. Richardson, 500 F.2d 309 (3d Cir. 20 1974)). 21 ORDER - 17 Case 1:21-cv-03147-LRS ECF No. 13 filed 09/21/23 PageID.1227 Page 18 of 22 1 Second, the ALJ found that Plaintiff’s continued smoking despite 2 recommendations that she quit suggests that her COPD was not as limiting as 3 alleged and reflects an unwillingness to comply with treatment. Tr. 24. It is 4 unsettled in the Ninth Circuit whether a failure to stop smoking is a reasonable basis 5 for giving less weight to a claimant’s symptom claims. See Bray v. Comm’r of Soc. 6 Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (declining to find error in 7 assessing claimant’s continued smoking in the credibility determination because four 8 other independent bases supported the credibility determination, but noting that “[i]t 9 [was] certainly possible that [claimant] was so addicted to cigarettes that she 10 continued smoking even in the face of debilitating shortness of breath and acute 11 chemical sensitivity”) (citing Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 12 1197 (9th Cir. 2004)); Shramek v. Apfel, 226 F.3d 809, 812–13 (7th Cir. 2000) 13 (noting, in dicta, that nicotine’s addictive properties made it “extremely tenuous” to 14 discredit a claimant’s description of her impairments based on the claimant’s 15 continued smoking). As Defendant observes, district court cases in the Ninth Circuit 16 are mixed. See e.g., Heather E. v. Comm’r of Soc. Sec. Admin., 1:20-CV-3235- 17 TOR, 2021 WL 9758807 (E.D. Wash., December 13, 2021) (finding failure to stop 18 smoking despite pulmonary symptoms was not an example of noncompliance with 19 treatment undermining Plaintiff’s credibility); McKenzie v. Kijakazi, No. 1:20-cv- 20 0327-JLT, 2021 WL 4279015, *9-10 (E.D. Cal. Sept. 21, 2021) (finding failure to 21 quit smoking offered “limited support” to the ALJ’s rejection of Plaintiff’s ORDER - 18 Case 1:21-cv-03147-LRS ECF No. 13 filed 09/21/23 PageID.1228 Page 19 of 22 1 statements); Jones v. Colvin, 1:14-cv-01991-JLT, 2016 WL 816484, *8 (E.D. Cal. 2 March 2, 2016) (finding that failure to quit smoking supported the ALJ’s adverse 3 credibility determination because Plaintiff had not explained his failure to comply 4 with treatment plan to quit). Thus, while it may not be error for the ALJ to consider 5 Plaintiff’s failure to stop smoking in evaluating her symptom claims, neither is it a 6 particularly compelling reason. 7 Third, the ALJ found the longitudinal record does not corroborate Plaintiff’s 8 symptom claims. Tr. 24-25. Contradiction with the medical record is a sufficient 9 basis for rejecting the claimant’s subjective testimony. Carmickle v. Comm’r of 10 Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008); Johnson v. Shalala, 60 F.3d 11 1428, 1434 (9th Cir. 1995). The ALJ evaluates a claimant’s statements for their 12 consistency, both internally and with other information in the case record. Social 13 Security Ruling 16-3p, 2017 WL 5180304, at *5 (effective October 25, 2017). In 14 light of the other errors, including overlooking Ms. Taylor’s statement, the ALJ 15 should also reassess the longitudinal record to ensure that findings are supported 16 by substantial evidence. 17 Fourth, the ALJ found Plaintiff stopped working for reasons other than her 18 impairments. Tr. 25. An ALJ may consider that a claimant stopped working for 19 reasons unrelated to the allegedly disabling condition in evaluating symptom claims. 20 See Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008); Bruton v. 21 Massanari, 268 F.3d 824, 828 (9th Cir. 2001). The ALJ noted that Plaintiff worked ORDER - 19 Case 1:21-cv-03147-LRS ECF No. 13 filed 09/21/23 PageID.1229 Page 20 of 22 1 as a security guard eight hours a day, one day per week from January 2015 through 2 December 2016. Tr. 185, 189, 198. Plaintiff reported that she stopped working on 3 December 31, 2016, due to her conditions. Tr. 197. However, the ALJ noted that in 4 December 2016, Plaintiff told her doctor that medication reduced her pain and 5 helped her work security, but that “work has been . . . slow.” Tr. 566-67. The ALJ 6 inferred that Plaintiff stopped working due to a reduction in work rather than 7 because of disabling impairments. Tr. 26. 8 9 Plaintiff argues the ALJ “confused the timeline” because she alleged disability beginning September 2013 and her part-time security guard work began in January 10 2015. ECF No. 10 at 13. Plaintiff and the ALJ both overlooked that Plaintiff 11 amended the alleged onset date September 8, 2016, at the hearing. Tr. 40. On 12 remand, the ALJ should address the amended alleged onset date and if it is not 13 applicable, explain that finding. Plaintiff also argues the reason she stopped working 14 as a security guard is not relevant because of minimal earnings and high doses of 15 opioids. ECF No. 10 at 14. Nevertheless, the regulations provide that employment, 16 even work that is not substantial gainful activity, during a period of claimed 17 disability may be probative of a claimant’s ability to work. 20 C.F.R. § 404.1571; 18 see Bray, 554 F.3d at 1227. The ALJ did not err by considering Plaintiff’s work as a 19 security guard or in making an inference supported by the record to the extent 20 Plaintiff worked during a period of alleged disability. 21 ORDER - 20 Case 1:21-cv-03147-LRS 1 ECF No. 13 filed 09/21/23 PageID.1230 Page 21 of 22 Fifth, ALJ found Plaintiff’s use of a wheelchair is inconsistent with the 2 record. Tr. 25. Non-prescribed use of a wheelchair or cane may be considered in 3 evaluating a claimant’s subjective expression of limitations. See Chaudhry v. 4 Astrue, 688 F.3d 661, 671 (9th Cir. 2012). The ALJ noted that Plaintiff testified at 5 the hearing in 2021 that she needs a wheelchair, Tr. 57, and in 2019 she reported 6 that she used a walker and a cane, Tr. 215, but there is no evidence in the record 7 before the date last insured that she was prescribed a wheelchair or other assistive 8 device or that she medically required one. Tr. 26. The ALJ noted that in 9 September 2014, Plaintiff stated she walked for exercise (Tr. 582); in January 2015 10 she was observed ambulating without difficulty (Tr. 396); in July 2015, Plaintiff 11 denied issues with walking, balance, or feeling unsteady, (Tr. 341); and in January 12 and April 2017, Plaintiff demonstrated normal gait, station, and posture (Tr. 493, 13 498). To the extent that Plaintiff alleged she needed an assistive device before the 14 date last insured, substantial evidence appears to support the ALJ’s conclusion. 15 However, it is unclear that when Plaintiff reported using assistive devices, she 16 intended to reference the period before her date last insured of June 30, 2017. The 17 ALJ cited no records suggesting Plaintiff was using an assistive device without a 18 prescription or against medical advice during the relevant period. As discussed by 19 the ALJ, this reasoning is not supported by substantial evidence and does not 20 undermine Plaintiff’s symptom claims for the relevant period. 21 ORDER - 21 Case 1:21-cv-03147-LRS 1 2 ECF No. 13 filed 09/21/23 PageID.1231 Page 22 of 22 CONCLUSION Having reviewed the record and the ALJ’s findings, this Court concludes the 3 ALJ’s decision is not supported by substantial evidence and free of harmful legal 4 error. Plaintiff requests that the matter be remanded for further proceedings, ECF 5 No. 10 at 20, and the Court finds that remand is appropriate. On remand, the ALJ 6 should consider the opinion of Ms. Taylor and Dr. Curtis and provide legally 7 sufficient reasons in evaluating the persuasiveness of the opinions. The ALJ should 8 also reevaluate Plaintiff’s symptom claims in accordance with this order. 9 Accordingly, 10 1. Plaintiff’s Motion for Summary Judgment, ECF No. 10, is GRANTED. 11 2. Defendant’s Motion for Summary Judgment, ECF No. 11, is DENIED. 12 3. This case is REVERSED and REMANDED for further administrative 13 proceedings consistent with this Order pursuant to sentence four of 42 U.S.C. § 14 405(g). 15 IT IS SO ORDERED. The District Court Clerk is directed to enter this 16 Order and provide copies to counsel. Judgment shall be entered for Plaintiff and the 17 file shall be CLOSED. 18 DATED September 21, 2023. 19 LONNY R. SUKO Senior United States District Judge 20 21 ORDER - 22
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