Barringer v. Commissioner of Social Security

UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA MICHAEL A. B., SR., Plaintiff, Case No. C22-5646 RSM v. ORDER REVERSING DENIAL OF 10 BENEFITS AND REMANDING COMMISSIONER OF SOCIAL SECURITY, FOR FURTHER PROCEEDINGS Defendant.

13 Plaintiff seeks review of the denial of his applications for Disability Insurance Benefits.

14 Plaintiff contends the ALJ erred by rejecting his symptom testimony and medical opinion evidence. Dkt. 15. 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).

18 BACKGROUND 19 Plaintiff is 52 years old, has at least a high school education, and has worked as a realtor, truck driver, and garbage collector. Admin. Record (AR) 54. In February 2019, Plaintiff applied for benefits, alleging disability as of February 23, 2016. AR 95–96, 110. Plaintiff’s application was denied initially and on reconsideration. AR 107, 123. After the ALJ conducted a hearing in March 2021, the ALJ issued a partially favorable decision finding Plaintiff disabled beginning on ORDER REVERSING DENIAL OF March 20, 2021. AR 37–93. Plaintiff seeks review of the ALJ’s decision that Plaintiff was not disabled prior to that date, therefore the relevant period is Plaintiff’s alleged onset date of February 23, 2016, through March 19, 2021.

4 DISCUSSION 5 The Court may reverse the ALJ’s decision only if it is legally erroneous or not supported by substantial evidence of record. Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020). The Court must examine the record but cannot reweigh the evidence or substitute its judgment for the ALJ’s. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When evidence is susceptible to more than one interpretation, the Court must uphold the ALJ’s interpretation if rational. Ford, 950 F.3d at 1154. Also, the Court “may not reverse an ALJ’s decision on account of an error that is harmless.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).

12 1. Plaintiff’s Symptom Testimony 13 Plaintiff testified that since an injury in February 2016, he has had pain in his low back, legs, shoulders, and hands. See AR 68–74. He stated his pain ranges from “6” to “7” out of 10 when he is on medication, and between “8” and “9” without medication. AR 70. He explained that when his pain is in the higher range, he spends four to five hours reclining in bed because his feet become numb. AR 72. He testified he can stand and walk for ten minutes, sit upright for 40 minutes, lift 10 to 15 pounds briefly, and hold and handle small items for 20 to 30 minutes before his hands become numb. AR 73–74. He stated that two times a week, he has to lay down the entire day. AR 75. He explained he uses a cane to steady himself and sometimes uses a walker.

21 AR 80–81. He also stated he has had two shoulder surgeries since February 2016 and needs knee surgery. AR 82.

23 As for his mental health, Plaintiff testified he is in treatment for depression and post- ORDER REVERSING DENIAL OF traumatic stress disorder. AR 75. He stated he has nightmares that impact his sleep two to three nights a week, and due to his symptoms, he does not get out of bed one day every two weeks.

3 AR 76–77. He explained his mental health symptoms affect his ability to pay attention and maintain concentration. AR 76.

5 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 v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). “The standard isn’t whether our court is convinced, but instead whether the ALJ’s rationale is clear enough that it has the power to convince.” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022).

12 The ALJ first rejected Plaintiff’s symptom testimony because it was inconsistent with objective medical evidence. AR 47–50. “When objective medical evidence in the record is inconsistent with the claimant's subjective testimony, the ALJ may indeed weigh it as undercutting such testimony.” Smartt, 53 F.4th at 498. Here, in rejecting Plaintiff’s statements about his physical symptoms, the ALJ pointed to Plaintiff’s physical examinations. AR 47–50.

17 The ALJ’s assessment is not completely supported by substantial evidence. The ALJ reasonably rejected Plaintiff’s testimony regarding his standing and walking limitations, as records cited by the ALJ show Plaintiff generally had normal and steady gait and mostly full strength in his bilateral lower extremities. AR 310, 322, 327, 330–31, 340, 345, 348, 350, 356, 373, 377, 389, 2698, 2704–05. Plaintiff also reported improvement with his lower extremity edema. AR 3516– 17, 3519.

23 The ALJ also noted that athough Plaintiff reported instability due to pain in his legs and ORDER REVERSING DENIAL OF numbness in his feet, his treating sources only limited him to no lifting over 10 pounds and no frequent bending or stooping, indicating his symptoms are not as severe as he alleged them to be.

3 AR 48 (citing AR 3320, 3331, 3334). The ALJ also reasonably rejected Plaintiff’s statements about his hands, as the records show that after Plaintiff underwent carpal tunnel syndrome surgery, he had full strength in both of his hands, he reported continued improvement, and his wrist had intact sensation and range of motion without pain. AR 3483, 3592.

7 However, the records are not as clear when it comes to Plaintiff’s back. The ALJ pointed out Plaintiff still had normal gait and “good” strength in the lower extremities, despite reduced range of motion in his lumbar spine. AR 47 (citing AR 360, 356, 2704–05, 3335–36). But the ALJ relied primarily on records from the beginning of the relevant period and seemed to overlook more recent ones showing further limited range of motion and weakness in his back.

12 See, e.g., AR 2989, 3017–22. The ALJ did cite to a February 2020 lumbar spine imaging and explained that despite Plaintiff’s complaints and the imaging findings, Plaintiff still had good range of motion of all major joints. AR 48 (citing AR 2963). Yet, the ALJ did not discuss a seemingly contradictory note from July 2020 that states Plaintiff’s lumbar range of motion was “not normal” and “[m]oderately decreased in all planes.” AR 3153.

17 The ALJ also noted Plaintiff’s use of an assistive device was inconsistent, but this characterization is not entirely accurate. See AR 42. It is true that earlier treatment notes do not indicate whether Plaintiff had an assistive device or expressly state he did not use one, but later notes show he was recommended to refrain from using a cane by physical therapy or they explicitly state he was using a cane or a walker. See AR 3006, 3072, 3331, 3139.

22 The ALJ’s rejection of Plaintiff’s statements regarding his shoulder is also unconvincing.

23 AR 50. Plaintiff’s post-surgery notes show his symptoms did not improve, even with therapy, ORDER REVERSING DENIAL OF and his treating source found that it would be best to order an imaging to determine the integrity of his right shoulder rotator cuff. AR 3873. In sum, the ALJ partially erred in rejecting Plaintiff’s testimony regarding his physical symptoms.

4 However, the ALJ reasonably rejected Plaintiff’s testimony about his mental health symptoms based on his mental status examination findings. AR 50. The records cited by the ALJ show that even though Plaintiff appeared tearful at times, and despite his reports of struggles with his memories, insomnia, and nightmares, he consistently had intact thought process, content, and memory with no cognitive issues, hallucinations, or delusions. See AR 1840, 2056–57, 2114, 2136, 3457–58, 3514–15, 3544–45, 3578, 3608, 3614–15, 3625, 3662.

10 These findings undermine Plaintiff’s testimony about the impact his mental health has on his ability to pay attention and maintain concentration, therefore in rejecting Plaintiff’s testimony regarding his mental health symptoms, the ALJ did not err.

13 The ALJ also generally rejected Plaintiff’s testimony because Plaintiff received unemployment benefits in 2020. AR 50. “Continued receipt of unemployment benefits does cast doubt on a claim of disability, as it shows that an applicant holds himself out as capable of working.” Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014). There is some confusion with the evidence at issue: an earnings report that states an individual who resides in California with the same name as Plaintiff received benefits in 2020. AR 217. Plaintiff contends these earnings belonged to Plaintiff’s son. Dkt. 15 at 2–3. The Court need not decide on this factual conflict because rejecting a claimant’s testimony based on his receipt of unemployment benefits is permissible only if the evidence of record also establishes the claimant held himself out as available for full-time or part-time work. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 23 1155, 1162 (9th Cir. 2008). The ALJ did not establish this here, merely stating that the earnings ORDER REVERSING DENIAL OF statement necessarily means Plaintiff represented himself as able to work. Thus, in rejecting Plaintiff’s testimony for this reason, the ALJ erred.

3 2. Medical Opinion Evidence 4 ALJs must consider every medical opinion in the record and evaluate each opinion’s persuasiveness, with the two most important factors being “supportability” and “consistency.”

6 Woods v. Kijakazi, 32 F.4th 785, 791 (9th Cir. 2022); 20 C.F.R. § 404.1520c(a). Supportability concerns how a medical source supports a medical opinion with relevant evidence, while consistency concerns how a medical opinion is consistent with other evidence from medical and nonmedical sources. See id.; 20 C.F.R. §§ 404.1520c(c)(1), (c)(2). Under the new regulations, “an ALJ cannot reject an examining or treating doctor’s opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence.” Woods, 32 F.4th at 792.

12 a. Worker’s Compensation Opinions 13 Various providers restricted Plaintiff to the following: no heavy lifting; no lifting, pushing, or pulling over ten pounds; no frequent bending or stooping; no prolonged sitting or standing; no standing or walking for 15 minutes at a time, a total of one hour in an eight-hour work day; and no sitting for more than 15 minutes at a time, a total of four hours in an eight-hour work day. See AR 378, 381, 387, 390, 392, 395, 397–98, 402, 2564, 2569, 2587, 2592, 2595, 2601, 2605, 2608, 2612, 2619, 2622, 2625, 2642, 2649, 2655, 2662, 2671, 2674, 2680, 2683, 2686, 2689, 2692, 2702, 2705, 2739, 2744, 2750, 2756, 2771, 2774, 2777, 2779.

20 The ALJ found these opinions persuasive but rejected the sitting restrictions and those limiting Plaintiff to standing/walking for no more than an hour during an eight-hour workday because they were not supported by contemporaneous physical examinations and inconsistent with other physical examinations throughout the record. AR 52. The records cited by the ALJ ORDER REVERSING DENIAL OF show Plaintiff had mostly normal gait and stance, and no significant diminishment in lower extremity strength. AR 52 (citing AR 365–66, 2704–05, 2725–26, 2732, 2735–36, 2739, 2743, 2750, 2754 2755, 2773). Plaintiff argues his normal gait during his appointments and strength findings are not relevant, but these objective findings reasonably undermine the proposed restrictions in these opinions. Dkt. 15 at 11. Further, several of the treatment notes cited by the ALJ show Plaintiff reported being able to walk for exercise. See AR 2591, 2600, 2603, 2607, 2611, 2618, 2621, 2624, 2641, 2647, 2654, 2661, 2670, 2673, 2679, 2682, 2685, 2688, 2691, 2701, 2704, 2738. Thus, the ALJ could reasonably find these opinions both unsupported by and inconsistent with the record.

10 b. Dr. Narayanan 11 Dr. Narayanan completed a form prepared by Plaintiff’s counsel and opined that due to Plaintiff’s low back pain, sciatica, and feet pain, Plaintiff can stand/walk for less than an hour, sit for about two hours, and needs to recline for two to four hours during an eight-hour workday.

14 AR 3137. Dr. Narayanan also opined Plaintiff needs to take one or more unscheduled work breaks of 15 minutes or more during a typical eight-hour workday. AR 3138.

16 The ALJ rejected Dr. Narayanan’s opinion because it was not supported by any clinical findings and relied primarily on Plaintiff’s reports. AR 52–53. How a medical source supports a medical opinion with relevant evidence is a factor the ALJ must consider. 20 C.F.R. § 19 404.1520c(c)(1). The ALJ accurately observed that the form Dr. Narayanan completed provided no supporting medical findings or relevant explanations for Dr. Narayanan’s opinion. See AR 3137–38. Dr. Narayanan’s treatment notes during Plaintiff’s appointment likewise lacks any evidence that could reasonably support Dr. Narayanan’s proposed limitations. See AR 3417–19.

23 Plaintiff argues the ALJ cannot reject a physician’s opinion simply because it is based on a ORDER REVERSING DENIAL OF claimant’s complaints if the physician did not discredit the claimant’s complaints and the physician provided his or her own observations. Dkt. 15 at 11–12 (citing Edlund v. Massanari, 253 F.3rd 1152, 1159 (9th Cir. 2001)). However, Dr. Narayanan included no such observations in the form at all, and the treatment notes explicitly state Plaintiff did not have a physical examination during his appointment because it was conducted over the telephone and any findings were based on Dr. Narayanan’s conversation with Plaintiff. See AR 3417–19. Thus, in rejecting Dr. Narayanan’s opinion for its lack of supportability, the ALJ did not err. Further, because the ALJ’s supportability finding is supported by substantial evidence, the Court need not address the ALJ’s inconsistency finding, because even if the latter was insufficient, the ALJ’s error would be rendered harmless. See Carmickle, 533 F.3d at 1162 (including an erroneous reason among other reasons is at most harmless error where an ALJ provides other reasons that are supported by substantial evidence).

13 3. Scope of Remedy 14 Plaintiff requests the Court remand this matter for an award of benefits, or alternatively, for a new hearing. Dkt. 15 at 12.

16 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). The Ninth Circuit has established a three-step framework for deciding whether a case may be remanded for an award of benefits. Id. at 1045. First, the Court must determine whether the ALJ has failed to provide legally sufficient reasons for rejecting evidence. Id. (citing Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014)). Second, the Court must determine “whether the record has been fully developed, whether there are outstanding issues that must be resolved before a determination of disability can be made, and whether further administrative proceedings ORDER REVERSING DENIAL OF would be useful.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) (internal citations and quotation marks omitted). If the first two steps are satisfied, the Court must determine whether, “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. “Even if [the Court] reach[es] the third step and credits [the improperly rejected evidence] as true, it is within the court’s discretion either to make a direct award of benefits or to remand for further proceedings.” Leon, 880 F.3d at 1045 (citing Treichler, 773 F.3d at 1101).

8 Only the first step is met here, as the Court has found the ALJ erred in evaluating Plaintiff’s testimony. However, it is contradicted by other evidence in the record, including raising a conflict in the record that requires a resolution. Dominguez v. Colvin, 808 F.3d 403, 409 (9th Cir. 2015) (“[T]he district court must ‘assess whether there are outstanding issues requiring resolution before considering whether to hold that [the rejected evidence] is credible as a matter of law.’”) (quoting Treichler, 775 F.3d at 1105). Plaintiff also has not analyzed the factors the Court considers before remanding for an award of benefits, nor shown any rare circumstances. Accordingly, the Court finds remanding for further proceedings is the more appropriate remedy.

17 On remand, the ALJ shall reevaluate Plaintiff’s testimony. The ALJ shall reevaluate all relevant steps of the disability evaluation process, and conduct all proceedings necessary to reevaluate the disability determination in light of this order.

20 CONCLUSION 21 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. § 23 405(g).

ORDER REVERSING DENIAL OF 1 DATED this 5th day of October, 2023.

A RICARDO S. MARTINEZ 4 UNITED STATES DISTRICT JUDGE ORDER REVERSING DENIAL OF