York v. Commissioner of Social Security

UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT TACOMA MARK A. Y., CASE NO. 3:21-CV-5568-DWC 10 Plaintiff, ORDER REVERSING AND 11 v. REMANDING DEFENDANT’S DECISION TO DENY BENEFITS COMMISSIONER OF SOCIAL SECURITY, Defendant.

Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant’s denial of Plaintiff’s application for supplemental security income (“SSI”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 1.

After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) erred when he evaluated Plaintiff’s subjective testimony, and this error impacted the ultimate disability determination. The ALJ’s error is therefore harmful, and this matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner of Social Security (“Commissioner”) for further proceedings consistent with this Order.

1 FACTUAL AND PROCEDURAL HISTORY 2 On January 26, 2017, Plaintiff filed applications for disability insurance benefits (“DIB”) and SSI, alleging disability as of September 1, 2013. See Dkt. 12, Administrative Record (“AR”) 16. The applications were denied due to a finding that Plaintiff performed substantial gainful activity, which was subsequently reversed by ALJ Linda Thomasson on July 18, 2019. See AR 55–62, 252–54. Subsequently, this ALJ remanded Plaintiff’s claims for initial disability determinations. AR 62. The applications were denied upon initial administrative review and on reconsideration. See AR 74, 86, 111–12. A hearing was held before ALJ Derek Johnson on November 18, 2020, in which Plaintiff amended his alleged disability onset date to July 3, 2017, and elected to withdraw his DIB application. See AR 31–54. In a decision dated December 23, 2020, the ALJ determined Plaintiff to be not disabled. See AR 13–30. Plaintiff’s request for review of the ALJ’s decision was denied by the Appeals Council, making the ALJ’s decision the final decision of the Commissioner. See AR 1–7; 20 C.F.R. § 404.981, § 416.1481.

14 In Plaintiff’s Opening Brief, Plaintiff maintains the ALJ erred by: (1) discounting Plaintiff’s subjective symptom testimony; (2) improperly evaluating the medical opinion evidence; and (3) fashioning a residual functional capacity (“RFC”) analysis that was informed by these errors. Dkt. 14, pp. 1–2.

18 STANDARD OF REVIEW 19 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of social security benefits if the ALJ’s findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).

1 DISCUSSION I. Whether the ALJ properly evaluated Plaintiff’s subjective testimony.

3 Plaintiff first avers that the ALJ erred in discounting his own symptom testimony. Dkt.

4 14, p. 1.

5 To reject a claimant’s subjective complaints, the ALJ’s decision must provide “specific, cogent reasons for the disbelief.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (citation omitted). The ALJ “must identify what testimony is not credible and what evidence undermines the claimant’s complaints.” Id.; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Unless affirmative evidence shows the claimant is malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be “clear and convincing.” Lester, 81 F.2d at 834. “[B]ecause subjective descriptions may indicate more severe limitations or restrictions than can be shown by medical evidence alone,” the ALJ may not discredit a subjective description “solely because it is not substantiated affirmatively by objective medical evidence.” Robbins v. Social Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006).

15 Here, Plaintiff alleged that he left his last job as a mechanic because he could not keep up with the pace of work. AR 35. He testified to suffering foot pain following a fracture on July 3, 2017, his alleged onset date; right side pain that continued after a hernia repair and mesh removal and flared two to three times a day; and hand pain that flared one to two times a week. AR 42– 44, 51. Plaintiff further testified that he could sit for 15 to 20 minutes at a time before needing to stand, could stand up for 20 minutes before needing to sit or lay down, and could walk for two to three city blocks and lift no more than five pounds. AR 46. Plaintiff testified that his contribution to household chores was limited to mowing the lawn for ten minutes at a time and cooking for short periods. AR 49–50.

1 The ALJ chose not to rely on this testimony, finding that it was inconsistent with (1) the medical record and (2) Plaintiff’s improvement with limited treatment.1 3 With respect to the ALJ’s first reason, “[c]ontradiction with the medical record is a sufficient basis for rejecting a claimant's subjective testimony.” Carmickle v. Commissioner, Social Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008). However, a mere “lack of medical evidence cannot form the sole basis for discounting [symptom] testimony.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Here, evidence the ALJ cited did not contradict Plaintiff's testimony.

9 Regarding Plaintiff’s foot pain, the ALJ found that Plaintiff had undergone a tarsometatarsal joint arthrodesis following his July 2017 injury and undergone a period of physical therapy. AR 554. The ALJ noted that thereafter, Plaintiff reported improvement, going fishing and becoming “‘cleared for full activities’” in March 2018, and ceased physical therapy before meeting “goals secondary to not returning for further treatment.” AR 21 (citing AR 554, 582, 584–85). The ALJ also noted that Plaintiff reported left midfoot and lateral hind foot pain in December 2018, but that a physical exam showed full functional motion, good ankle range of motion, “excellent” alignment, and stability with tenderness to stress on the first metatarsophalangeal and fourth and fifth tarsometatarsal joints. AR 21 (citing AR 585).

1 On appeal, both parties assert that the ALJ relied on Plaintiff’s activities of daily living to discredit Plaintiff’s testimony. See Dkt. 14, p. 6; Dkt. 15, p. 6. However, the ALJ’s analysis of Plaintiff’s medical history included only a single sentence indicating that Plaintiff once reported going fishing. AR 21. Because this reference is embedded within the ALJ’s medical record analysis and the ALJ did not analyze the consistency of this activity or any other activity with Plaintiff’s complaints, the Court will not address it as a separate reason for discounting Plaintiff’s testimony. See Bray v. Commissioner of Social Security Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (citing SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S. Ct. 1575, 91 L. Ed. 1995 (1947)) (“Long-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and factual findings offered by the ALJ—not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.”)

1 As to Plaintiff’s right side pain, the ALJ determined that this was caused by a hernia which was repaired in a March 2018 laparoscopic procedure and mesh insertion, and that despite reporting continuing pain, Plaintiff showed no signs of hernia recurrence. AR 21 (citing AR 502, 504, 513, 521). The ALJ found that this pain was mostly resolved after an August 2019 procedure to replace the mesh and was thereafter treated with oxycodone. AR 21 (citing AR 634, 636, 776–77). In addition, the ALJ found that Plaintiff’s abdominal pain was due to systemic inflammatory response syndrome but found that this did not meet the durational requirement for a medically determinable impairment. AR 21 (citing AR 776).

9 Finally, regarding Plaintiff’s back pain, the ALJ found that Plaintiff reported such pain occurring since 1996, well before the alleged onset date, and that despite a consultative examination showing antalgic gait and inability to perform hell, tiptoe, or tandem walking or squatting due to pain, the consultative examiner noted Plaintiff’s poor effort. AR 22 (citing AR 652–56). The ALJ found that a 2017 examination showed normal results and Plaintiff was prescribed gabapentin for this pain, and that Plaintiff improved after treatment sessions with a chiropractor in 2019. AR 22 (citing AR 397, 399, 854, 858–59, 862, 886, 889). Finally, with respect to Plaintiff’s hand pain and carpal tunnel, the ALJ found that although Plaintiff showed some decreased sensation in the consultative physical examination, he also retained full bilateral strength and grip. AR 23 (citing AR 656).

19 In sum, the ALJ found that “clinical evidence and diagnostic findings do not substantiate disabling physical limitations with respect to [Plaintiff]’s ability to sit, stand, walk, or use his extremities.” AR 23 (citing AR 365–99, 445, 633, 744, 854). The ALJ’s reliance on one-time physical exams is misplaced. Several of the examinations to which the ALJ cites took place before the alleged onset date. See AR 365–99, 445. Later examinations within the period at issue show Plaintiff with a normal gait, but with other issues that do not enter the ALJ’s discussion: the March 2019 examination disclosed “extreme” right side tenderness; a July 2019 examination showed limited cervical and thoraco-lumbar range of motion with pain and stiffness; and a February 2020 examination showed Plaintiff positive for light-headedness and abdominal and flank pain. AR 633, 744, 854. In any event, a normal gait walking across a doctor's office does not contradict Plaintiff’s testimony of needing to rest due to pain after walking two to three city blocks. Nor does any objective medical evidence contradict Plaintiff’s alleged sitting and standing limitations, as he testified that he could sit or stand for 15 to 20 minutes at a time. AR 46. The Social Security Administration's regulation concerning evidence of functioning in supportive situations is instructive here: “Your ability to complete tasks in settings that are highly structured, or that are less demanding or more supportive than typical work settings does not necessarily demonstrate your ability to complete tasks in the context of regular employment during a normal workday or work week.” 20 C.F.R. 404, Subpart P, App'x 1, § 12.00(C)(6)(b) (2016). Objective medical evidence was not a sufficient basis on which to reject Plaintiff’s symptom testimony.

16 With respect to the ALJ’s second reason, an ALJ may rely on conservative treatment in discounting a claimant's symptom testimony. See Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (holding that over-the-counter pain medication is “conservative treatment”). However, the treatment must be effective. See 20 C.F.R. § 404.1529(c)(3)(iv) (evaluating the effectiveness of medication and treatment and not whether treatment is aggressive or conservative). Here, as discussed above, the ALJ noted that Plaintiff underwent surgeries to treat his foot pain and a hernia, in addition to being treated with pain medication, physical therapy, and chiropractic therapy. AR 21–22 (citing AR 554, 582, 584–85, 634, 636, 776–77, 858–59, 862, 886, 889). The ALJ emphasized that Plaintiff was discharged from physical therapy after his foot surgery without meeting goals secondary to not returning for further treatment, but did not appear to consider the contemporaneous treatment notes indicating Plaintiff would continue in an independent home exercise program. AR 582. In any event, this recovery is not inconsistent with Plaintiff’s report that foot pain returned spontaneously later on. See AR 585. The ALJ also noted that Plaintiff’s pain was treated with Gabapentin and Oxycodone. AR 21. While Plaintiff was prescribed Oxycodone for only a brief period of time, the record shows he was regularly prescribed Tramadol, another opioid pain medication. See AR 396, 777–78. “[P]ain treatment with opioid analgesics generally is not considered conservative.” O’Connor v. Berryhill, 355 10 F.Supp.3d 972, 985 (W.D. Wash. 2019) (citing Kager v. Astrue, 256 F. App’x 919, 923 (9th Cir. 2007)). The ALJ’s finding that Plaintiff’s symptoms improved with conservative treatment is not supported by substantial evidence.

13 The ALJ did not give any clear and convincing reasons for rejecting Plaintiff’s testimony regarding the severity of his symptoms. While the ALJ erred, the Court must determine whether this error was harmless. Harmless error principles apply in the Social Security context. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless, however, only if it is not prejudicial to the claimant or is “inconsequential” to the ALJ’s “ultimate nondisability determination.” Stout v. Commissioner, Social Security Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); see Molina, 674 F.3d at 1115. The determination as to whether an error is harmless requires a “case-specific application of judgment” by the reviewing court, based on an examination of the record made “‘without regard to errors’ that do not affect the parties’ ‘substantial rights.’” Molina, 674 F.3d at 1118–1119 (quoting Shinseki v. Sanders, 556 U.S. 396, 407 (2009) (quoting 28 U.S.C. §2111)).

1 In this case, the ALJ’s error was not harmless. Had the ALJ properly considered Plaintiff’s testimony, the ALJ may have incorporated limitations expressed therein into Plaintiff’s residual functional capacity. Had the ALJ incorporated such limitations, in turn, the ultimate disability determination may have changed. Accordingly, the ALJ’s error was not harmless and requires reversal.

6 II. Whether the ALJ properly evaluated the medical opinion evidence and RFC.

7 Plaintiff also maintains the ALJ’s evaluation of medical opinion evidence, as well as the ALJ’s RFC determination, are not supported by substantial evidence. Dkt. 14, pp. 9–13.

9 The Court has found the ALJ committed harmful error and has directed the ALJ to reassess Plaintiff’s testimony on remand. See Section I., supra. Hence, the ALJ shall reassess the medical opinions and RFC on remand. See Social Security Ruling 96-8p, 1996 WL 374184 (1996) (an RFC “must always consider and address medical source opinions”); Valentine v. Commissioner Social Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (“an RFC that fails to take into account a claimant’s limitations is defective”). As the ALJ must reassess Plaintiff’s RFC, the ALJ is also directed to re-evaluate Step Five to determine whether there are jobs existing in significant numbers in the national economy Plaintiff can perform given the RFC. See Watson v. Astrue, 2010 WL 4269545, at *5 (C.D. Cal. Oct. 22, 2010) (finding the RFC and hypothetical questions posed to the VE defective when the ALJ did not properly consider two physicians’ findings).

20 III. Whether remand for an award of benefits is appropriate.

21 Lastly, Plaintiff requests the Court remand this case for an award of benefits. Dkt. 14, p. 13.

22 The Court may remand a case “either for additional evidence and findings or to award benefits.”

23 Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Generally, when the Court reverses an ALJ’s decision, “the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). However, the Ninth Circuit created a “test for determining when evidence should be credited and an immediate award of benefits directed.” Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). Specifically, benefits should be awarded where: 6 the ALJ has failed to provide legally sufficient reasons for rejecting [the claimant’s] evidence, (2) there are no outstanding issues that must be resolved before a 7 determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited.

Smolen, 80 F.3d at 1292.

In this case, the Court has directed the ALJ to re-evaluate Plaintiff’s subjective symptom testimony and medical opinion evidence . See Sections I.-II., supra. Because outstanding issues remain regarding the medical opinion evidence, Plaintiff’s testimony, the RFC, and Plaintiff’s ability to perform jobs existing in significant numbers in the national economy, remand for further consideration of this matter is appropriate.

CONCLUSION Based on the foregoing reasons, the Court hereby finds the ALJ improperly concluded Plaintiff was not disabled. Accordingly, Defendant’s decision to deny benefits is reversed and this matter is remanded for further administrative proceedings in accordance with the findings contained herein.

Dated this 23rd day of February, 2022.

21 A David W. Christel United States Magistrate Judge