Bevilacqua v. Commissioner of Social Security

UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE ANGELA B., Plaintiff, Case No. C20-1617 RSM v. ORDER REVERSING THE 10 COMMISSIONER’S FINAL COMMISSIONER OF SOCIAL SECURITY, DECISION AND REMANDING 11 FOR FURTHER Defendant. ADMINISTRATIVE 12 PROCEEDINGS 13 Plaintiff appeals denial of her applications for Supplemental Security Income and Disability Insurance Benefits. Plaintiff contends the ALJ erred by discounting her testimony and three medical sources’ opinions, accepting another medical source’s opinion, and determining Plaintiff could perform three jobs. Dkt. 18. As discussed below, the Court REVERSES the Commissioner’s final decision and REMANDS the matter for further administrative proceedings under sentence four of 42 U.S.C. § 405(g).

19 BACKGROUND 20 Plaintiff is 41 years old, has a limited education, and has worked as a computer equipment operator and an injection molding machine operator. Dkt. 16, Admin. Transcript (Tr.)

22 1103. Plaintiff applied for benefits in March 2015, alleging disability as of April 25, 2014. Tr.

ORDER REVERSING THE COMMISSIONER’S FINAL DECISION AND 1089. Plaintiff’s applications were denied initially, on reconsideration, and in a 2018 ALJ decision after hearings in 2017 and 2018. Tr. 1089, 13-32. On appeal to this Court, the Court reversed the ALJ’s decision and remanded for reconsideration of the medical opinion evidence and Plaintiff’s testimony. Tr. 1229-47.

5 On remand, after the ALJ conducted a hearing in July 2020, the ALJ issued a decision finding Plaintiff not disabled. Tr. 1089-1105, 1114-41. The ALJ found Plaintiff had severe spinal impairment(s), hip impairment(s), carpal tunnel syndrome, fibromyalgia, sleep apnea, obesity, mood disorder(s), anxiety disorder(s) (including post-traumatic stress disorder), personality disorder(s), and substance use disorder(s). Tr. 1092. The ALJ found Plaintiff had the residual functional capacity (RFC) to perform simple, routine, light-exertion work with additional social and manipulative limitations. Tr. 1094. The ALJ found that, while Plaintiff could not perform her past relevant work, she could perform other work, such as jobs as a housekeeping cleaner, cafeteria attendant, or outside deliverer. Tr. 1102-04.

14 DISCUSSION 15 This Court may set aside the Commissioner’s denial of Social Security benefits only if the ALJ’s decision is based on legal error or not supported by substantial evidence in the record as a whole. Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017).

18 A. Plaintiff’s Testimony 19 Where, as here, an ALJ determines a claimant has presented objective medical evidence establishing underlying impairments that could cause the symptoms alleged, and there is no affirmative evidence of malingering, the ALJ can only discount the claimant’s testimony as to symptom severity by providing “specific, clear, and convincing” reasons supported by substantial evidence. Trevizo, 871 F.3d at 678.

ORDER REVERSING THE COMMISSIONER’S FINAL DECISION AND 1 The ALJ discounted Plaintiff’s testimony of disabling physical and mental limitations based on ability to work with the same impairments, inconsistent statements, conflict with medical evidence, lack of treatment, and conflict with activities. Tr. 1095-2000.

4 The ALJ’s finding that Plaintiff worked with the same impairments was not supported by substantial evidence. The ALJ found Plaintiff’s hand pain and tingling began by 2010. Tr. 1095 (citing Tr. 676, 801). However, the 2015 records the ALJ cited show Plaintiff’s “symptoms have become worse over the past few months.” Tr. 676; Tr. 801 (“symptoms have progressed … over the past several months”). The ALJ also cited reports of anxiety in 2012, but nothing comparable to Plaintiff’s testimony of isolating herself and crying spells. Tr. 1095 (citing Tr.

10 903-09), Tr. 1123-27. And the ALJ’s finding that Plaintiff “reported severe depression and anxiety, with a need to take daytime naps” in 2013 relies on a mischaracterization of the record.

12 Tr. 1095 (citing Tr. 761-64). In the record cited, Plaintiff reported “[f]amily conflict,” not severe depression and anxiety, and, when describing her activities of daily living, stated she took naps while her baby napped. Tr. 761. Again, this is not comparable to Plaintiff’s testimony after the alleged onset date. An ALJ may not reject evidence based on an inaccurate portrayal of the record. See Reddick v. Chater, 157 F.3d 715, 722-23 (9th Cir. 1998) (ALJ’s decision unsupported by substantial evidence where his “paraphrasing of record material is not entirely accurate regarding the content or tone of the record”). Ability to work with the same impairments was not a clear and convincing reason to discount Plaintiff’s testimony.

20 The Commissioner argues the ALJ cited “inconsistencies in why Plaintiff stopped working, sought treatment, and whether or not treatment was effective” but fails to identify such inconsistencies. Dkt. 22 at 4. The ALJ cited records stating Plaintiff left her last job because she “was not able to perform” or because “her depression got worse,” but these are not inconsistent.

ORDER REVERSING THE COMMISSIONER’S FINAL DECISION AND Tr. 542, 601.1 The ALJ cited treatment notes from times when Plaintiff’s pain was well controlled and times when it was uncontrolled. Tr. 1096; see also Tr. 1097 (ALJ found Plaintiff “occasionally” reported pain was controlled). This appears to show variability over time rather than contradictory statements. Inconsistent statements were not a clear and convincing reason to discount Plaintiff’s testimony.

6 An ALJ may reject a claimant’s testimony based on contradiction with the medical record, but not mere lack of supporting medical evidence. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Here, the ALJ cited treatment notes documenting observations such as normal mood and affect, but also observations Plaintiff was “teary.” Tr. 549. Normal mood and affect did not contradict Plaintiff’s mental symptom testimony of self-isolation and crying spells. Similarly, the ALJ cited a mix of abnormal and normal physical findings, such as spinal tenderness and degenerative changes, but negative straight leg raise test. Tr. 1096. While some of these findings may not support Plaintiff’s testimony, none contradict it. Contradiction with medical evidence was not a clear and convincing reason to discount Plaintiff’s testimony.

16 The ALJ found Plaintiff had “no documented treatment during her period of work activity in 2013 and 2014,” prior to the alleged onset date, but failed to explain how this had any bearing on her testimony related to the period after her alleged onset date. Tr. 1095.

19 The ALJ found Plaintiff had “minimal” pain treatment after 2017 and no carpal tunnel treatment after May 2019. Tr. 1097. “[A]n unexplained, or inadequately explained, failure to

22 1 The ALJ also stated Plaintiff “appears to have voluntarily left work in April 2014 in order to seek disability benefits,” but provided no supporting citation to the record, and the Court can find none. Tr.

23 1095.

ORDER REVERSING THE COMMISSIONER’S FINAL DECISION AND seek treatment” can constitute a sufficient reason for discrediting a claimant’s symptom testimony. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Plaintiff fails to address the ALJ’s finding. This lack of treatment was a clear and convincing reason to discount Plaintiff’s testimony of debilitating pain after 2017, but not earlier.

5 An ALJ may discount a claimant’s testimony based on daily activities that either contradict her testimony or that meet the threshold for transferable work skills. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Here, the ALJ found Plaintiff’s activities of caring for several children and her mother and traveling out of state contradicted her testimony. Tr. 1099-2000.

9 While caretaking did not contradict Plaintiff’s testimony, her travel activities provided a clear and convincing reason to discount her mental symptom testimony.

11 Although Plaintiff cared for her four children and at times another child, all but one were teenagers and adults who took care of their own needs and in fact helped Plaintiff with cooking, shopping, and housework. Tr. 86, 93, 108.2 She got her five-year-old son ready for school, but her older children helped with that when she was unable. Tr. 91, 108. The ALJ failed to identify any childcare activities that contradicted Plaintiff’s physical or mental symptom testimony.

16 The ALJ’s finding that Plaintiff’s care for her mother contradicted her testimony was unsupported by substantial evidence. Plaintiff testified her caretaking consisted of taking her mother to medical appointments. Tr. 92; see also Tr. 1558 (“takes mother to all her many medical appointments”). Plaintiff testified she provides “emotional support” for her mother, but does “not take care of her in any way of physically.” Tr. 110, 112. The ALJ failed to identify any contradictory evidence in the record. Treatment notes show Plaintiff reported her mother Plaintiff’s counsel is reminded to provide citations to the record to support factual assertions. See, e.g., Dkt. 18 at 10 (“her children are old enough to essentially take care of themselves”).

ORDER REVERSING THE COMMISSIONER’S FINAL DECISION AND had “brain tumors” but was “quite functional.” Tr. 1731. Plaintiff “expressed worry and concern” over her mother’s health condition, but neither the ALJ nor the Commissioner identifies any caretaking activities that contradicted Plaintiff’s testimony. Tr. 1555.

4 Plaintiff’s travel activities, however, conflicted with her mental symptom testimony. At the 2017 hearing, Plaintiff testified she took a family trip to Disneyland for about a week, and flew to her brother’s house in Arizona for two weeks. Tr. 88-90. The ALJ reasonably found a week-long trip to Disneyland contradicted Plaintiff’s testimony that depression causes her to retreat to her bedroom three days a week. See Tr. 106.

9 Plaintiff’s arguments to the contrary are unavailing. Plaintiff argues she has trouble interacting with others, “which is not necessary in a theme park.” Dkt. 18 at 11. Plaintiff’s assertion that a week-long visit to a theme park requires no interaction with others finds no support in the record. The ALJ reasonably inferred Plaintiff interacted with people, such as ticket-sellers, hotel staff, vendors, or other visitors, during the Disneyland trip. See Batson v. Comm’r, Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) (“[T]he Commissioner’s findings are upheld if supported by inferences reasonably drawn from the record.”). Plaintiff next argues there was “no indication that these trips were not mentally difficult for [her].” Dkt.

17 18 at 11. But there is no indication the trip did cause her difficulty, and her ability to successfully complete the trip contradicts her testimony of needing to isolate frequently.

19 Plaintiff also argues “no concentration or pace maintenance [was] expected.” Dkt. 18 at 11. But an ALJ may discount a claimant’s testimony based on activities that either contradict her testimony or show transferable work skills. Orn, 495 F.3d at 639. The ALJ did not err by finding Plaintiff’s ability to take a week-long Disneyland trip contradicted her testimony of extreme isolation. Plaintiff asserts having her family with her “attenuate[d] her mental ORDER REVERSING THE COMMISSIONER’S FINAL DECISION AND limitations.” Dkt. 18 at 11. There is no support in the record for Plaintiff’s assertion. In fact, therapy notes indicate family issues were her biggest stressor. See, e.g., Tr. 1492 (“discussed depression issues in relation to family issues”), 1535 (focus of therapy session was “family and parenting issues”), 1551 (“mother is giving her a ‘hard time.’”). Conflict with Plaintiff’s activities was a clear and convincing reason to discount her mental symptom testimony.

6 The Court concludes the ALJ did not err by discounting Plaintiff’s mental symptom testimony, and her physical symptom testimony for the time after 2017. However, the ALJ erred by discounting her physical symptom testimony before then without a clear and convincing reason.

10 B. Medical Opinion Evidence 11 A treating physician’s opinion is generally entitled to greater weight than an examining physician’s opinion, and an examining physician’s opinion is entitled to greater weight than a non-examining physician’s opinion. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). An ALJ may only reject the contradicted opinion of a treating or examining doctor by giving “specific and legitimate” reasons. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). An ALJ “may reject the opinion of a non-examining physician by reference to specific evidence in the medical record.” Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998). An ALJ may reject the opinion of a non-acceptable medical source, such as an occupational therapist, by giving reasons germane to the opinion. Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014).

20 1. Examining Medical Source Julie L. Milasich, O.T.

21 Occupational therapist Ms. Milasich performed a Functional Evaluation in November 2015, and opined Plaintiff could sit three hours, stand one hour, and walk half an hour per day.

23 Tr. 897-98. She opined Plaintiff could lift a maximum of 12.5 pounds. Tr. 897. The ALJ gave ORDER REVERSING THE COMMISSIONER’S FINAL DECISION AND “minimal weight” to Ms. Milasich’s opinions based on conflict with the medical evidence and Plaintiff’s activities. Tr. 1100.

3 The ALJ found Ms. Milasich clinical findings of mild leg weakness, rated at 4 to 4+ out of 5, conflicted with contemporary medical evidence of normal strength. Tr. 1100. Treatment providers found Plaintiff’s lower extremity strength “intact” or within normal limits. See, e.g., Tr. 935, 943. There is no indication these general findings of full strength are inconsistent with Ms. Milasich’s more detailed and precise testing results of nearly full strength. Similarly, the ALJ failed to explain how Ms. Milasich’s findings of “mostly intact sensation in [Plaintiff’s] hands” was inconsistent with other medical evidence of normal sensation. Tr. 1100. The ALJ’s finding of inconsistency with medical evidence was unsupported by substantial evidence, and thus could not provide a germane reason to discount Ms. Milasich’s findings.

12 The ALJ found Ms. Milasich’s opinions inconsistent with Plaintiff’s activities as a “primary caregiver for her ailing mother and four children, which involves driving and household chores.” Tr. 1100. The ALJ failed to explain how these activities were inconsistent with Ms. Milasich’s opinions, and no inconsistency is apparent. For example, the ALJ did not identify any household chores that required lifting more than 12.5 pounds, or any driving that required more than half an hour at a time or three hours per day. See Tr. 897. The ALJ’s finding of inconsistency with Plaintiff’s activities was unsupported by substantial evidence, and thus was not a germane reason to discount Ms. Milasich’s opinions.

20 The Court concludes the ALJ erred by discounting Ms. Milasich’s opinions.

21 2. Treating Physician Kamran Khan, M.D.

22 Plaintiff contends the ALJ erred by discounting Dr. Khan’s 2020 opinion. Dkt. 18 at 16.

23 In June 2020, Dr. Khan filled out a Request for Medical Opinion form, opining Plaintiff’s pain ORDER REVERSING THE COMMISSIONER’S FINAL DECISION AND would interfere with concentration about half the time, she would need unscheduled breaks due to pain, and she would need to recline about two hours per day. Tr. 1745-46. Dr. Khan opined Plaintiff could use her “hands and arms less than occasionally” and would be absent at least three days per month. Tr. 1747.

5 The ALJ gave Dr. Khan’s opinions “minimal weight” for several reasons. Tr. 1101. The ALJ discounted Dr. Khan’s opinions because of normal mental status findings and reliance on Plaintiff’s self-reports, but Dr. Khan’s opined limitations were based on pain, not psychological impairment. Tr. 1101, 1745-47. The ALJ also discounted Dr. Khan’s opinions because they were based on Ms. Milasich’s functional evaluation. Tr. 1101. Because the ALJ erred by discounting Ms. Milasich’s opinions, reliance on them was not a valid reason to discount Dr. Khan’s opinions.

12 The ALJ discounted Dr. Khan’s opinions as inconsistent with the medical evidence. The ALJ noted Dr. Khan observed “some areas of tenderness and limited range of motion,” but also sometimes “intact spinal range of motion” and “normal sensation, negative [straight leg raises], no spasms, and no acute distress.” Tr. 1101. The ALJ did not identify any contradiction with Dr. Khan’s opinions. Merely listing some normal and some abnormal findings does not explain why the ALJ considered the normal results more significant. See Reddick, 157 F.3d at 725 (“The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors’, are correct.”). As a medical professional, Dr. Khan was better suited than the ALJ to evaluate the normal and abnormal findings to determine Plaintiff’s functional limitations. Inconsistency with medical evidence was not a specific and legitimate reason to discount Dr. Khan’s opinions.

ORDER REVERSING THE COMMISSIONER’S FINAL DECISION AND 1 The ALJ found Dr. Khan’s opinions contradicted by Plaintiff’s activities as a caregiver, which involved “driving, attending appointments, and performing household tasks on a reliable basis.” Tr. 1101. The ALJ failed, however, to explain how these activities conflicted with Dr. Khan’s opinions. Conflict with activities was not a specific and legitimate reason to discount Dr. Khan’s opinions.

6 The Court concludes the ALJ erred by discounting Dr. Khan’s opinions.

7 3. Non-examining Physician Frank Barnes, M.D.

8 At the 2018 hearing, Dr. Barnes testified Plaintiff could lift ten pounds occasionally and could stand/walk two hours per day. Tr. 1345. He opined she could handle and finger frequently with the left and occasionally with the right upper extremity. Tr. 1346. The ALJ gave these opinions “minimal weight” because Plaintiff worked with the same impairments. Tr. 1102. As discussed above with regard to Plaintiff’s testimony, this finding is unsupported by substantial evidence. Records the ALJ cited show Plaintiff’s pain worsened around the time of her alleged onset date. See, e.g., Tr. 794 (in June 2016 back pain had been “gradually worsening” for “several months”).

16 The Commissioner contends the ALJ found “sustained control” of pain undermined Dr. Barnes’ opinions. Dkt. 22 at 6; see Tr. 1102. Yet, elsewhere in the decision, the ALJ found Plaintiff sometimes had “well-controlled pain” and sometimes had “uncontrolled back pain.” Tr.

19 1096. It is the ALJ’s role to resolve conflicts in the evidence. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Because the ALJ failed to resolve whether Plaintiff’s pain was consistently controlled or changed over time, sustained control of pain was not a valid reason to discount Dr. Barnes’ opinions.

ORDER REVERSING THE COMMISSIONER’S FINAL DECISION AND 1 The ALJ also discounted Dr. Barnes’ opinions based on the same medical evidence as for Dr. Khan. Tr. 1102. For the same reasons, this was not a valid reason to discount Dr. Barnes’ opinions.

4 The Court concludes the ALJ erred by discounting Dr. Barnes’ opinions.

5 4. Non-examining State Agency Physician Myung A. Song, D.O.

6 In November 2015, Dr. Song opined Plaintiff could perform light work. Tr. 197-99. The ALJ gave Dr. Song’s opinions “significant weight” as consistent with Plaintiff’s “work history, activities since April 2014, longitudinal examination findings, and pursuit of treatment,” but did not identify any specific supporting evidence. Tr. 1102. As discussed above, several of the ALJ’s findings regarding Plaintiff’s work history, activities, and medical evidence were not supported by substantial evidence, and the lack of treatment after 2017 did not shed light on Plaintiff’s condition before then. On remand, the ALJ’s reassessment of this evidence will necessitate reconsideration of Dr. Song’s opinions. The ALJ will also need to determine how reevaluation of the medical opinions discussed above that conflict with Dr. Song’s affect the evaluation of Dr. Song’s opinions.

16 C. Step Five Jobs 17 Plaintiff contends the three jobs the ALJ relied on at step five are incompatible with the RFC the ALJ assessed, according to either vocational expert testimony or the Dictionary of Occupational Titles (DOT). Dkt. 18 at 3-5. Because the ALJ must reevaluate portions of Plaintiff’s testimony as well as several medical opinions inconsistent with the assessed RFC, on remand the ALJ may assess a different RFC and will have the opportunity to elicit further vocational expert testimony and address any apparent discrepancies with the DOT. The Court therefore need not address Plaintiff’s argument at this juncture.

ORDER REVERSING THE COMMISSIONER’S FINAL DECISION AND D. Scope of Remand 2 Plaintiff requests remand for an award of benefits because it has been over five years since she applied for benefits. Dkt. 18 at 17. However, remand for an award of benefits “is a rare and prophylactic exception to the well-established ordinary remand rule.” Leon v. Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2017). It requires establishing that the ALJ failed to provide legally sufficient reasons for rejecting evidence, that the record is fully developed and no conflicts remain for the ALJ to resolve, and that, if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. Garrison, 759 F.3d at 1020. The length of time since Plaintiff applied for benefits does not establish any of these three criteria. The Court concludes remand for further proceedings is appropriate.

11 CONCLUSION 12 For the foregoing reasons, the Commissioner’s final decision is REVERSED and this case is REMANDED for further administrative proceedings under sentence four of 42 U.S.C. § 405(g).

15 On remand, the ALJ should reevaluate Plaintiff’s physical symptom testimony through 2017 and the opinions of Ms. Milasich, Dr. Khan, Dr. Barnes, and Dr. Song; reassess the RFC as appropriate; and proceed to step five as necessary.

18 DATED this 9th day of September, 2021.

A 21 RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE ORDER REVERSING THE COMMISSIONER’S FINAL DECISION AND