Mendoza v. Saul, No. 2:2019cv00249 - Document 16 (E.D. Wash. 2020)
Court Description: ORDER GRANTING, IN PART, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF No. 13 ) AND REMANDING FOR ADDITIONAL PROCEEDINGS and denying Defendant's Motion for Summary Judgment (ECF No. 14 ). File closed. Signed by Magistrate Judge John T. Rodgers. (PH, Case Administrator)
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Mendoza v. Saul Doc. 16 Case 2:19-cv-00249-JTR ECF No. 16 filed 08/31/20 PageID.929 Page 1 of 17 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON Aug 31, 2020 SEAN F. MCAVOY, CLERK 6 7 8 9 10 11 12 13 14 ALICIA M., No. 2:19-CV-0249-JTR Plaintiff, v. ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY, ORDER GRANTING, IN PART, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS Defendant. 15 16 BEFORE THE COURT are cross-motions for summary judgment. ECF 17 No. 13, 14. Attorney David L. Lybbert represents Alicia M. (Plaintiff); Special 18 Assistant United States Attorney Lisa Goldoftas represents the Commissioner of 19 Social Security (Defendant). The parties have consented to proceed before a 20 magistrate judge. ECF No. 7. After reviewing the administrative record and the 21 briefs filed by the parties, the Court GRANTS, IN PART, Plaintiff’s Motion for 22 Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; and 23 REMANDS the matter to the Commissioner for additional proceedings pursuant to 24 42 U.S.C. § 405(g). 25 26 JURISDICTION Plaintiff filed applications for Disability Insurance Benefits and 27 Supplemental Security Income in June 2016, alleging disability since March 2, 28 2016, due to vertebra fractures (several body traumas spine); migraines; nine ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 1 Dockets.Justia.com Case 2:19-cv-00249-JTR ECF No. 16 filed 08/31/20 PageID.930 Page 2 of 17 1 shattered vertebra, three compressed; back pain; eight broken ribs; punctured liver; 2 punctured lung; chronic pain in joints; anxiety attacks; depression; hernias, five 3 hernia repairs; and traumatic brain trauma. Tr. 337, 339, 365. The applications 4 were denied initially and upon reconsideration. Administrative Law Judge (ALJ) 5 Kimberly Boyce held a hearing on December 5, 2017, Tr. 47-86, and issued an 6 unfavorable decision on June 18, 2018, Tr. 24-41. The Appeals Council denied 7 Plaintiff’s request for review on May 22, 2019. Tr. 1-6. The ALJ’s June 2018 8 decision thus became the final decision of the Commissioner, which is appealable 9 to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for 10 judicial review on July 18, 2019. ECF No. 1. STATEMENT OF FACTS 11 12 Plaintiff was born on December 5, 1979, Tr. 53, and was 36 years old on the 13 alleged onset date, March 2, 2016. She completed two years of college, earning an 14 associate degree in 2015. Tr. 53-54, 366. Plaintiff testified at the administrative 15 hearing on December 5, 2017, that she worked part-time watching her nieces and 16 nephews while attending community college between 2013 and 2015. Tr. 54-55, 17 62-63. Plaintiff’s disability report indicates she also has past work as a compliance 18 clerk, a massage therapist, an office manager, and a personal assistant. Tr. 367. 19 Plaintiff’s disability report indicates she stopped working in 2011 because of her 20 conditions. Tr. 366. 21 Plaintiff testified at the administrative hearing that her physical problems 22 were caused by car accidents. Tr. 64. She suffered fractured vertebras and ribs 23 and incurred multiple hernias. Tr. 64. She stated, as a result, she has limited range 24 of motion in her neck and experiences severe headaches two to three times a week. 25 Tr. 65. She indicated she also has muscle spasms in her back and stomach. Tr. 67. 26 Plaintiff reported she had been prescribed several different narcotic medications 27 for her pain throughout the years and, at the time of the hearing, took pain pills five 28 times a day. Tr. 59-60, 67. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 2 Case 2:19-cv-00249-JTR 1 ECF No. 16 filed 08/31/20 PageID.931 Page 3 of 17 Plaintiff stated she was only able to walk about a block and a half before 2 needing to sit or lie down, stand in one place for five minutes before needing to sit 3 or lie down, sit for 15 to 30 minutes before needing to switch positions, and carry 4 no more weight than a gallon of milk. Tr. 68-69, 74. She indicated her physical 5 symptoms prevented her from doing any household chores about three times a 6 week. Tr. 76. 7 With respect to her mental health, Plaintiff testified she has experienced 8 depression and anxiety since her 2011 automobile accidents. Tr. 70. She indicated 9 she had flashbacks of the accidents and resultant difficulty with sleep at night, as 10 well as problems with focus and concentration. Tr. 70-71, 75. She reported taking 11 anti-anxiety medication three times a day. Tr. 71. 12 13 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 14 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 15 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 16 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 17 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 18 only if it is not supported by substantial evidence or if it is based on legal error. 19 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 20 defined as being more than a mere scintilla, but less than a preponderance. Id. at 21 1098. Put another way, substantial evidence is such relevant evidence as a 22 reasonable mind might accept as adequate to support a conclusion. Richardson v. 23 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 24 rational interpretation, the Court may not substitute its judgment for that of the 25 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 26 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 27 administrative findings, or if conflicting evidence supports a finding of either 28 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 3 Case 2:19-cv-00249-JTR ECF No. 16 filed 08/31/20 PageID.932 Page 4 of 17 1 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 2 supported by substantial evidence will be set aside if the proper legal standards 3 were not applied in weighing the evidence and making the decision. Brawner v. 4 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). SEQUENTIAL EVALUATION PROCESS 5 The Commissioner has established a five-step sequential evaluation process 6 7 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); Bowen v. 8 Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of 9 proof rests upon the claimant to establish a prima facie case of entitlement to 10 disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once a 11 claimant establishes that a physical or mental impairment prevents the claimant 12 from engaging in past relevant work. 20 C.F.R. § 416.920(a)(4). If a claimant 13 cannot perform past relevant work, the ALJ proceeds to step five, and the burden 14 shifts to the Commissioner to show (1) the claimant can make an adjustment to 15 other work; and (2) the claimant can perform specific jobs that exist in the national 16 economy. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 (9th 17 Cir. 2004). If a claimant cannot make an adjustment to other work in the national 18 economy, the claimant will be found disabled. 20 C.F.R. § 416.920(a)(4)(v). 19 ADMINISTRATIVE DECISION 20 On June 18, 2018, the ALJ issued a decision finding Plaintiff was not 21 disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful 22 23 activity since March 2, 2016, the alleged onset date. Tr. 27. At step two, the ALJ determined Plaintiff had the following severe 24 25 impairments: traumatic brain injury (TBI), an affective disorder, an anxiety 26 disorder, a personality disorder, and degenerative disc disease. Tr. 28. 27 /// 28 /// ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 4 Case 2:19-cv-00249-JTR ECF No. 16 filed 08/31/20 PageID.933 Page 5 of 17 1 At step three, the ALJ found Plaintiff did not have an impairment or 2 combination of impairments that meets or medically equals the severity of one of 3 the listed impairments. Tr. 28. The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 4 5 Plaintiff could perform light exertion level work with the following limitations: 6 she could stand and/or walk for about four hours and sit for about six hours in an 7 eight-hour workday with normal breaks; she could never climb ladders, ropes or 8 scaffolds, work at unprotect heights or in proximity to hazards, such as heavy 9 machinery and dangerous moving parts; she could occasionally climb ramps and 10 stairs, stoop, kneel, crouch, and crawl; she could perform work in which 11 concentrated exposure to extreme cold, heat or vibration was not present; in order 12 to meet ordinary and reasonable employer expectations, she could understand, 13 remember and carry out unskilled, routine and repetitive work that could be 14 learned by demonstration, and in which tasks to be performed were predetermined 15 by the employer; she could cope with occasional work setting change and 16 occasional interaction with supervisors; she could work in proximity to coworkers, 17 but not in a team or cooperative effort; and she could perform work that did not 18 require interaction with the general public as an essential element of the job, but 19 occasional incidental contact was not precluded. Tr. 30. At step four, the ALJ found Plaintiff was not able to perform any of her past 20 21 relevant work. Tr. 39-40. At step five, the ALJ determined that, based on the testimony of the 22 23 vocational expert, and considering Plaintiff’s age, education, work experience, and 24 RFC, Plaintiff was capable of making a successful adjustment to other work that 25 exists in significant numbers in the national economy, including the jobs of 26 production assembler, electronics worker, and mail clerk. Tr. 40-41. 27 /// 28 /// ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 5 Case 2:19-cv-00249-JTR 1 ECF No. 16 filed 08/31/20 PageID.934 Page 6 of 17 The ALJ thus concluded Plaintiff was not under a disability within the 2 meaning of the Social Security Act at any time from March 2, 2016, the alleged 3 onset date, through the date of the ALJ’s decision, June 18, 2018. Tr. 40. ISSUES 4 The question presented is whether substantial evidence supports the ALJ’s 5 6 decision denying benefits and, if so, whether that decision is based on proper legal 7 standards. 8 Plaintiff raises the following issues on review: (1) Did the ALJ err in 9 improperly rejecting the opinions of Plaintiff’s treating and examining providers; 10 (2) Did the ALJ err in improperly rejecting Plaintiff’s subjective complaints; 11 (3) Did the ALJ err in failing to meet her burden at step five, to identify specific 12 jobs, available in significant numbers, which Plaintiff could perform in light of her 13 specific functional limitations; and (4) Did the ALJ err in failing to consider 14 Chronic Pain and Fibromyalgia as severe conditions and factor them into the 15 overall determination of limitations? ECF No. 13 at 9-10. DISCUSSION 16 17 18 A. Medical Opinion Evidence Plaintiff argues the ALJ erred by failing to properly consider the medical 19 opinion evidence of record. Plaintiff specifically asserts the ALJ erred by rejecting 20 the opinions of treating doctor Randel Bunch, M.D., and examining medical 21 professional Thomas Genthe, Ph.D., and instead relying on the opinions of 22 nonexamining state agency medical consultants. ECF No. 13 at 11-15. 23 In a disability proceeding, the courts distinguish among the opinions of three 24 types of acceptable medical sources: treating physicians, physicians who examine 25 but do not treat the claimant (examining physicians) and those who neither 26 examine nor treat the claimant (nonexamining physicians). Lester v. Chater, 81 27 F.3d 821, 830 (9th Cir. 1996). A treating physician’s opinion carries more weight 28 than an examining physician’s opinion, and an examining physician’s opinion is ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 6 Case 2:19-cv-00249-JTR ECF No. 16 filed 08/31/20 PageID.935 Page 7 of 17 1 given more weight than that of a nonexamining physician. Benecke v. Barnhart, 2 379 F.3d 587, 592 (9th Cir. 2004); Lester, 81 F.3d at 830. The Ninth Circuit has 3 held that “[t]he opinion of a nonexamining physician cannot by itself constitute 4 substantial evidence that justifies the rejection of the opinion of either an 5 examining physician or a treating physician.” Lester, 81 F.3d at 830; Pitzer v. 6 Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990) (finding a nonexamining doctor’s 7 opinion “with nothing more” does not constitute substantial evidence). 8 In weighing the medical opinion evidence of record, the ALJ must make 9 findings setting forth specific, legitimate reasons for doing so that are based on 10 substantial evidence in the record. Magallanes v. Bowen, 881 F.2d 747, 751 (9th 11 Cir. 1989). The ALJ must also set forth the reasoning behind his or her decisions 12 in a way that allows for meaningful review. Brown-Hunter v. Colvin, 806 F.3d 13 487, 492 (9th Cir. 2015). 14 On July 22, 2017, state agency physician Guillermo Rubio, M.D. reviewed 15 the record and opined that Plaintiff could perform light exertion level work 16 (occasionally lift and/or carry 20 pounds and frequently lift and/or carry 10 17 pounds) and stand and/or walk and sit (with normal breaks) about six hours in an 18 eight hour workday with some postural and environmental restrictions. Tr. 188- 19 189. Also on July 22, 2016, reviewer John D. Gilbert, Ph.D., found Plaintiff was 20 capable of understanding and remembering simple one to three step repetitive 21 tasks, would have interruptions in concentration, persistence and pace at times due 22 to subjective perception of pain and psychological symptoms, and would retain the 23 ability to carry out routine labor within customary tolerances during a normal 24 workday and workweek. Tr. 190. He determined Plaintiff was able to interact 25 with the public on an occasional/superficial basis and that interactions with 26 supervisors and coworkers could occur on a more frequent basis. Tr. 191. 27 28 Nonexamining state agency consultant Howard Platter, M.D., opined on November 25, 2016, that Plaintiff could perform light exertion level work ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 7 Case 2:19-cv-00249-JTR ECF No. 16 filed 08/31/20 PageID.936 Page 8 of 17 1 (occasionally lift and/or carry 20 pounds and frequently lift and/or carry 10 2 pounds) and stand and/or walk for four hours and sit (with normal breaks) about 3 six hours in an eight hour workday with some postural and environmental 4 restrictions. Tr. 219-221. On November 21, 2016, reviewer Jerry Gardner, Ph.D., 5 determined Plaintiff was capable of understanding and remembering simple one to 6 three step instructions without difficulty as well as some more detailed tasks and 7 capable of persisting at routine simple tasks in at least two-hour intervals. Tr. 221- 8 222. He opined Plaintiff’s concentration, persistence and pace were intermittently 9 limited by pain and psychological symptoms, but not so as to preclude productive 10 activity in a competitive employment environment. Tr. 222. He limited Plaintiff 11 to occasional interaction with the public, coworkers and supervisors and indicated 12 she would work best in a stable, low pressure setting. Tr. 223. 13 A few months prior to the alleged onset date (March 2, 2016), in contrast to 14 the opinions of the above nonexamining medical professionals, examining medical 15 professional J. Brooke Sjostrom, M.S., LMHC, opined that Plaintiff had several 16 marked and moderate limitations with respect to her ability to perform basic work 17 activities. Tr. 495-499. In addition, on November 16, 2015, Randel S. Bunch, 18 M.D., Plaintiff’s treating physician, completed a physical functional evaluation 19 form and found that as a result of Plaintiff’s back pain, joint pain, neck pain and 20 abdominal pain, she was restricted to sedentary level work (lifting 10 pounds 21 maximum). Tr. 503-504. 22 After the alleged onset date, on May 17, 2016, Thomas Genthe, Ph.D., 23 completed a psychological/psychiatric evaluation of Plaintiff. Tr. 564-572. 24 Plaintiff reported her highest education level as attaining her GED and indicated 25 she last worked in 2012 as a personal assistant for an insurance company. Tr. 565. 26 Dr. Genthe diagnosed major depressive disorder, unspecified; other specified 27 anxiety disorder; and other specified personality disorder (with borderline 28 features), Tr. 566, and checked boxes indicating Plaintiff was markedly impaired ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 8 Case 2:19-cv-00249-JTR ECF No. 16 filed 08/31/20 PageID.937 Page 9 of 17 1 in her abilities to maintain appropriate behavior in a work setting and complete a 2 normal work day and work week without interruptions from psychologically based 3 symptoms, Tr. 567. Dr. Genthe completed another psychological/psychiatric 4 evaluation of Plaintiff on October 3, 2017. Tr. 737-745. Plaintiff again reported 5 her highest education level as attaining her GED and that she last worked in 2012 6 as a personal assistant for an insurance company. Tr. 738. Dr. Genthe diagnosed 7 borderline intellectual functioning; major depressive disorder, unspecified; post- 8 traumatic stress disorder; and other specified personality disorder (with borderline 9 features), Tr. 739, and checked boxes indicating Plaintiff had several moderate and 10 marked limitations with her basic work activities, Tr. 739-740. Dr. Genthe opined 11 Plaintiff was unlikely to function adequately in a work setting until her 12 psychological symptoms had been managed more effectively. Tr. 740. 13 The ALJ noted at the administrative hearing that when Plaintiff was seen by 14 Dr. Genthe, she did not mention she had obtained an AA, only that she had a GED, 15 nor did she inform the doctor that she had worked as a caretaker for her siblings’ 16 children for three years (2013-2015), only that she last worked in 2012 as a 17 personal assistant for an insurance agency. Tr. 56-57. Plaintiff was not able to 18 explain why she omitted this information, other than to state that her anxiety “gets 19 the best of me” causing her to not recall things. Tr. 57. 20 On November 22, 2017, Dr. Bunch completed a Physical Medical Source 21 Statement form for Plaintiff. Tr. 826-829. He indicated, in an eight-hour workday, 22 Plaintiff could sit for three to four hours, stand for one to two hours, walk for one 23 to two hours, and lift and carry 11 to 20 pounds seldomly and up to 10 pounds 24 occasionally. Tr. 826-827. Dr. Bunch noted several postural and environmental 25 limitations. Tr. 827-828. On the form, he circled he “agreed” Plaintiff would need 26 more than the scheduled breaks of 10 minutes or more throughout the day, would 27 likely miss work or leave early at least two to three days per month due to flare-ups 28 of symptoms, was unlikely to tolerate production level work, was likely to ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 9 Case 2:19-cv-00249-JTR ECF No. 16 filed 08/31/20 PageID.938 Page 10 of 17 1 experience marked problems with focus and concentration for extended periods, 2 and would need to elevate one or both legs. Tr. 828. In reaching her RFC determination, the ALJ accorded “little weight” to 3 4 treating physician Bunch, examining doctor Genthe and Ms. Sjostrom, and instead 5 accorded controlling weight to the nonexamining state agency reviewers. Tr. 32- 6 39. 7 While the report of Ms. Sjostrom and one of the reports of Dr. Bunch 8 predate the alleged onset date in this case, see Fair v. Bowen, 885 F.2d 597, 600 9 (9th Cir. 1989) (finding medical opinions that predate the alleged onset of 10 disability are of limited relevance), their opinions, coupled with the post-onset date 11 conclusions of examining physician Genthe and treating physician Bunch, indicate 12 Plaintiff’s functioning is limited to a greater extent than as expressed by the 13 nonexamining medical professionals. And, as noted above, the opinion of 14 nonexamining physicians cannot alone justify the rejection of the opinion of either 15 an examining physician or a treating physician. Lester, 81 F.3d at 830. The ALJ 16 did not cite any other medical source opinion evidence, other than the above 17 nonexamining medical professionals, in support of her conclusions with respect to 18 Plaintiff’s level of functioning. 19 The ALJ stated that the opinions of Dr. Bunch, Dr. Genthe and Ms. Sjostrom 20 were accorded “little weight” because Plaintiff’s physical exams during the period 21 at issue were generally normal and mental health treatment notes during the period 22 at issue were generally normal and did not support marked mental limitations. Tr. 23 35-39. Although the ALJ specifically mentions Plaintiff’s muscle tone and 24 strength were normal and there were no neurological deficits, Tr. 35, and that 25 various mental health findings on exam were “normal,” Tr. 37, 39, the Court finds 26 the ALJ failed to describe how particular record evidence specifically contradicted 27 the opinions of Dr. Bunch, Dr. Genthe and Ms. Sjostrom. See Brown-Hunter, 806 28 F.3d at 492 (finding the agency must set forth reasoning behind its decisions in a ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 10 Case 2:19-cv-00249-JTR ECF No. 16 filed 08/31/20 PageID.939 Page 11 of 17 1 way that allows for meaningful review); Treichler v. Comm’r of Soc. Sec. Admin., 2 775 F.3d 1090, 1103 (9th Cir. 2014) (“Although the ALJ’s analysis need not be 3 extensive, the ALJ must provide some reasoning in order for us to meaningfully 4 determine whether the ALJ’s conclusions were supported by substantial 5 evidence.”). 6 Based on the foregoing, the ALJ’s rationale for discounting the reports of 7 Dr. Bunch, Dr. Genthe and Ms. Sjostrom is not properly supported, and the 8 opinions of the nonexamining medical professionals cannot alone justify the 9 rejection of the opinions of the treating and examining medical professionals. The 10 Court thus finds the ALJ erred by failing to provide cogent, specific and legitimate 11 reasons, supported by substantial evidence, for rejecting their opinions. A remand 12 is required for reconsideration of the reports of Dr. Bunch, Ms. Sjostrom1 and Dr. 13 Genthe and for further development of the record. 14 B. New Evidence 15 Plaintiff’s motion requests that the Court also take into consideration another 16 psychological/psychiatric evaluation completed by Dr. Genthe on October 20, 17 2018, after the administrative proceedings and while the matter was pending 18 review at the Appeals Council. ECF No. 13 at 9; Tr. 12-20. 19 The Appeals Council considered the new evidence and made it a part of the 20 administrative record at Tr. 12-20. See Harman v. Apfel, 211 F.3d 1172, 1179- 21 1180 (9th Cir. 2000) (stating that where claimant submitted additional materials to 22 23 1 The Court notes Ms. Sjostrom’s report, Tr. 495-499, and Dr. Bunch’s 24 November 2015 physical functional evaluation form, Tr. 503-504, predate the 25 relevant time period in this action and are thus of limited relevance. Fair, 885 F.2d 26 at 600. On remand, the ALJ shall be instructed to review these medical reports and 27 accord them appropriate weight to the extent they are found to address Plaintiff’s 28 condition during the relevant period at issue in this matter. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 11 Case 2:19-cv-00249-JTR ECF No. 16 filed 08/31/20 PageID.940 Page 12 of 17 1 the Appeals Council in requesting review of the ALJ’s decision, “[w]e may 2 properly consider the additional materials because the Appeals Council addressed 3 them in the context of denying Appellant’s request for review”); Ramirez v. 4 Shalala, 8 F.3d 1449, 1451-1452 (9th Cir. 1993) (noting that where the Appeals 5 Council declined to review the decision of the ALJ after examining the entire 6 record, including new material, we considered both the ALJ’s decision and the 7 additional materials submitted to the Appeals Council). 8 9 Because this matter is being remanded for additional proceedings to remedy the ALJ’s errors as to the medical opinion evidence of record, see supra, on 10 remand, the ALJ shall consider Dr. Genthe’s October 20, 2018, report, Tr. 12-20, 11 as it relates to the period on or before the date of the ALJ’s decision. Plaintiff’s Subjective Complaints 12 C. 13 Plaintiff contends the ALJ also erred by improperly rejecting her subjective 14 15 complaints. ECF No. 13 at 15-17. The Court agrees. It is the province of the ALJ to make credibility determinations. Andrews, 16 53 F.3d at 1039. However, the ALJ’s findings must be supported by specific 17 cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Once 18 the claimant produces medical evidence of an underlying medical impairment, the 19 ALJ may not discredit testimony as to the severity of an impairment because it is 20 unsupported by medical evidence. Reddick, 157 F.3d 715, 722 (9th Cir. 1998). 21 Absent affirmative evidence of malingering, the ALJ’s reasons for rejecting the 22 claimant’s testimony must be “specific, clear and convincing.” Smolen, 80 F.3d at 23 1281; Lester, 81 F.3d at 834. “General findings are insufficient: rather the ALJ 24 must identify what testimony is not credible and what evidence undermines the 25 claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 26 918 (9th Cir. 1993). 27 28 The ALJ concluded Plaintiff’s medically determinable impairments could reasonably be expected to cause her alleged symptoms; however, Plaintiff’s ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 12 Case 2:19-cv-00249-JTR ECF No. 16 filed 08/31/20 PageID.941 Page 13 of 17 1 statements concerning the intensity, persistence and limiting effects of those 2 symptoms were not entirely consistent with the medical and other evidence of 3 record. Tr. 32. 4 The ALJ determined that “the objective findings in this case fail to provide 5 support for the claimant’s allegations of disabling symptoms and limitations.” Tr. 6 32. A lack of supporting objective medical evidence is a factor which may be 7 considered in evaluating an individual’s credibility, provided it is not the sole 8 factor. Bunnell v. Sullivan, 347 F.2d 341, 345 (9th Cir. 1991). In assessing a 9 Plaintiff’s testimony, an ALJ may consider whether the alleged symptoms are 10 consistent with the medical evidence; however, an ALJ may not make a negative 11 credibility finding “solely because” the claimant’s symptom testimony “is not 12 substantiated affirmatively by objective medical evidence.” Robbins v. Soc. Sec. 13 Admin., 466 F3d 880, 883 (9th Cir. 2006). 14 Here, the ALJ summarized the record evidence pertaining to Plaintiff’s 15 physical and mental impairments, Tr. 32-34, but failed to articulate what specific 16 allegation of Plaintiff was undermined by the treatment notes, evaluations and 17 reports. 18 The Ninth Circuit has determined that an ALJ errs “by making only a single 19 general statement that the claimant’s statements concerning the intensity, 20 persistence and limiting effects of these symptoms are not credible to the extent 21 they are inconsistent with the [ALJ’s RFC determination], without identifying 22 sufficiently specific reasons for rejecting the testimony, supported by evidence in 23 the case record.” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) 24 (quotation marks and citation omitted); see also Holohan v. Massanari, 246 F.3d 25 1195, 1208 (9th Cir. 2001) (holding “the ALJ must specifically identify the 26 testimony she or he finds not to be credible and must explain what evidence 27 undermines the testimony”). In Brown-Hunter, the ALJ “simply stated her non- 28 credibility conclusion and then summarized the medical evidence supporting her ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 13 Case 2:19-cv-00249-JTR ECF No. 16 filed 08/31/20 PageID.942 Page 14 of 17 1 RFC determination,” which “is not the sort of explanation or the kind of ‘specific 2 reasons’ we must have in order to review the ALJ’s decision meaningfully . . . [to] 3 ensure that the claimant’s testimony was not arbitrarily discredited.” Brown- 4 Hunter, 806 F.3d at 494. The Ninth Circuit concluded “[b]ecause the ALJ failed to 5 identify the testimony she found not credible, she did not link that testimony to the 6 particular parts of the record supporting her non-credibility determination. This 7 was legal error.” Id. (citation omitted). 8 9 Like the ALJ in Brown-Hunter, ALJ Boyce failed to identify how the summarized medical evidence specifically conflicted with Plaintiff’s reported 10 symptoms. The ALJ only generally stated that Plaintiff’s allegations of disabling 11 symptoms and limitations were not consistent with the objective findings of record. 12 This is not a valid, clear and convincing reason to discount subjective complaints. 13 The ALJ’s only other asserted reason for rejecting Plaintiff’s testimony is 14 that Plaintiff’s described daily activities were inconsistent with her complaints of 15 disabling symptoms and limitations. Tr. 32. Although it is well-established that 16 the nature of daily activities may be considered when evaluating a plaintiff’s 17 subjective symptoms, Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989), the ALJ 18 only generally mentions Plaintiff activities of daily living, Tr. 31-32. The ALJ did 19 not articulate in what way Plaintiff’s daily activities conflicted with her testimony. 20 This factor for discounting Plaintiff’s symptom reports is also unsupported. 21 The ALJ is responsible for reviewing the evidence and resolving conflicts or 22 ambiguities in testimony. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 23 1989). This Court has a limited role in determining whether the ALJ’s decision is 24 supported by substantial evidence and may not substitute its own judgment for that 25 of the ALJ even if it might justifiably have reached a different result upon de novo 26 review. 42 U.S.C. § 405(g). It is the role of the trier of fact, not this Court, to 27 resolve conflicts in evidence. Richardson, 402 U.S. at 400. However, based on 28 the foregoing, the Court concludes that the rationale provided by the ALJ for ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 14 Case 2:19-cv-00249-JTR ECF No. 16 filed 08/31/20 PageID.943 Page 15 of 17 1 discounting Plaintiff’s testimony is inadequate. Therefore, Plaintiff’s subjective 2 symptoms must be reassessed on remand. On remand, the ALJ shall reconsider 3 Plaintiff’s statements and testimony and reassess what statements, if any, are not 4 credible and, if deemed not credible, what specific evidence undermines those 5 statements. 6 D. 7 Plaintiff also contends the ALJ erred at step two of the sequential evaluation 8 process by failing to consider all of Plaintiff’s severe impairments. ECF No. 13 at 9 18-19. Plaintiff specifically asserts the ALJ failed to find Plaintiff’s fibromyalgia 10 Severe Impairments and/or chronic pain was a severe impairment. Id. Plaintiff has the burden of proving that she has a severe impairment at step 11 12 two of the sequential evaluation process. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 13 416.912. In order to meet this burden, Plaintiff must furnish medical and other 14 evidence that shows she has a severe impairment. 20 C.F.R. § 416.912(a). The 15 regulations, 20 C.F.R. §§ 404.1520(c), 416.920(c), provide that an impairment is 16 severe if it significantly limits one’s ability to perform basic work activities. The Court notes Plaintiff’s disability report fails to mention fibromyalgia as 17 18 an issue causing her alleged disability. See Tr. 365. Moreover, Plaintiff did not 19 raise fibromyalgia as restricting her functionality at the time of the administrative 20 hearing. Nevertheless, Plaintiff’s treating physician Bunch mentions fibromyalgia 21 in his assessment and treatment of Plaintiff. See Tr. 595, 828. Given the ALJ’s erroneous determinations regarding the medical opinion 22 23 evidence of record and Plaintiff’s subjective complaints and the resultant necessity 24 of a remand to remedy these defects, on remand the ALJ shall additionally 25 reexamine the severity of Plaintiff’s conditions at step two of the sequential 26 evaluation process and specifically address the impact of Plaintiff’s fibromyalgia 27 and/or chronic pain, if any. 28 /// ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 15 Case 2:19-cv-00249-JTR ECF No. 16 filed 08/31/20 PageID.944 Page 16 of 17 1 E. Step Five 2 Plaintiff contends that the ALJ erred at step five of the sequential evaluation 3 process. ECF No. 13 at 17-18. Plaintiff argues the ALJ’s RFC and hypothetical to 4 the vocational expert failed to account for all of her limitations as assessed by Drs. 5 Bunch and Genthe. Id. 6 As determined above, the ALJ erred by providing inadequate reasoning for 7 according little weight to the opinions of Drs. Bunch and Genthe and insufficient 8 rationale for finding Plaintiff lacked credibility. See supra. The ALJ’s RFC 9 determination is thus not supported by substantial record evidence. 10 Plaintiff’s RFC is an administrative finding, dispositive of the case, which is 11 reserved to the Commissioner, and, by delegation of authority, to the ALJ. SSR 12 96-5p. It is the responsibility of the ALJ, not this Court, to make a RFC 13 determination. Accordingly, Plaintiff’s RFC must be redetermined, on remand, 14 taking into consideration the opinions of the medical professionals noted above, as 15 well as any additional or supplemental evidence relevant to Plaintiff’s claim for 16 disability benefits. If warranted, the ALJ shall also obtain supplemental testimony 17 from a vocational expert with respect to the new RFC determination. 18 19 CONCLUSION Plaintiff argues the ALJ’s decision should be reversed and remanded for the 20 payment of benefits. ECF No. 13 at 19-20. The Court has the discretion to remand 21 the case for additional evidence and findings or to award benefits. Smolen, 80 F.3d 22 at 1292. The Court may award benefits if the record is fully developed and further 23 administrative proceedings would serve no useful purpose. Id. Remand is 24 appropriate when additional administrative proceedings could remedy defects. 25 Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). In this case, the Court 26 finds that further development is necessary for a proper determination to be made. 27 On remand, the ALJ shall reconsider Plaintiff’s physical and psychological 28 limitations. The ALJ shall reassess the opinions of Dr. Bunch, Dr. Genthe and Ms. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 16 Case 2:19-cv-00249-JTR ECF No. 16 filed 08/31/20 PageID.945 Page 17 of 17 1 Sjostrom, including Dr. Genthe’s October 2018 report, Tr. 12-20, and all other 2 medical evidence of record relevant to Plaintiff’s claim for disability benefits. The 3 ALJ shall further develop the record by directing Plaintiff to undergo consultative 4 physical and psychological examinations to assist the ALJ in assessing Plaintiff’s 5 functioning during the relevant time period. The ALJ shall reevaluate Plaintiff’s 6 subjective complaints, formulate a new RFC determination, obtain supplemental 7 testimony from a vocational expert, if necessary, and take into consideration any 8 other evidence or testimony relevant to Plaintiff’s disability claim. 9 10 11 12 13 14 15 Accordingly, IT IS ORDERED: 1. Plaintiff’s Motion for Summary Judgment, ECF No. 13, is GRANTED IN PART. 2. Defendant’s Motion for Summary Judgment, ECF No. 14, is DENIED. 3. The matter is REMANDED to the Commissioner for additional proceedings consistent with this Order. 16 4. An application for attorney fees may be filed by separate motion. 17 The District Court Executive is directed to file this Order and provide a copy 18 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and 19 the file shall be CLOSED. 20 DATED August 31, 2020. 21 22 23 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 17
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