Candy Trejo v. Nancy A. Berryhill, No. 5:2017cv00879 - Document 22 (C.D. Cal. 2018)

Court Description: MEMORANDUM DECISION AND ORDER REVERSING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered REVERSING the Commissioner's decision, GRANTING Plaintiff's request for remand, and REMANDING this action for further proceedings consistent with this memorandum decision. (See Order for details) (bem)

Download PDF

Candy Trejo v. Nancy A. Berryhill Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CANDY TREJO, Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. ) Case No. EDCV 17-0879-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) REVERSING COMMISSIONER ) ) ) ) ) ) ) 17 18 19 I. PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 20 denying her applications for Social Security disability insurance 21 benefits (“DIB”) and supplemental security income benefits 22 (“SSI”). 23 undersigned under 28 U.S.C. § 636(c). 24 Court on the parties’ Joint Stipulation, filed December 28, 2017, 25 which the Court has taken under submission without oral argument. 26 For the reasons stated below, the Commissioner’s decision is 27 reversed and this action is remanded for further proceedings. The parties consented to the jurisdiction of the The matter is before the 28 1 Dockets.Justia.com 1 2 II. BACKGROUND Plaintiff was born in 1965. (Administrative Record (“AR”) 3 67, 224.) 4 worked as a portrait finisher (AR 59, 252). 5 She received a high school diploma (AR 38, 252) and On December 7, 2012, and February 19, 2013, Plaintiff 6 applied for SSI and DIB, respectively, alleging that she had been 7 unable to work since September 1, 2008,1 because of attention 8 deficit disorder, major depressive disorder, fibromyalgia, sleep 9 apnea, and osteoarthritis. (AR 67-68, 80-81, 224-30, 251.) 10 After her applications were denied initially and on 11 reconsideration (see AR 93-94, 125-26, 129, 136), she requested a 12 hearing before an Administrative Law Judge (AR 142). 13 was held on August 7, 2015, at which Plaintiff, who was 14 represented by counsel, testified, as did a vocational expert. 15 (AR 33-66, 223.) 16 2015, the ALJ found Plaintiff not disabled. 17 Plaintiff sought Appeals Council review (AR 8-9), which was 18 denied on March 7, 2017 (AR 1-6). 19 III. STANDARD OF REVIEW 20 A hearing In a written decision issued September 22, (AR 14-32.) This action followed. Under 42 U.S.C. § 405(g), a district court may review the 21 Commissioner’s decision to deny benefits. 22 decision should be upheld if they are free of legal error and 23 supported by substantial evidence based on the record as a whole. 24 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 25 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). The ALJ’s findings and Substantial 26 27 28 1 Plaintiff listed September 1, 2008, as her disabilityonset date. (AR 224, 226.) In all other paperwork, however, including the ALJ’s decision, June 15, 2006, is listed as her onset date. (AR 14, 67-68, 80-81, 251.) 2 1 evidence means such evidence as a reasonable person might accept 2 as adequate to support a conclusion. 3 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 4 It is more than a scintilla but less than a preponderance. 5 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 6 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 7 substantial evidence supports a finding, the reviewing court 8 “must review the administrative record as a whole, weighing both 9 the evidence that supports and the evidence that detracts from Richardson, 402 U.S. at To determine whether 10 the Commissioner’s conclusion.” 11 720 (9th Cir. 1998). 12 either affirming or reversing,” the reviewing court “may not 13 substitute its judgment” for the Commissioner’s. 14 IV. Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support Id. at 720-21. THE EVALUATION OF DISABILITY 15 People are “disabled” for purposes of receiving Social 16 Security benefits if they are unable to engage in any substantial 17 gainful activity owing to a physical or mental impairment that is 18 expected to result in death or has lasted, or is expected to 19 last, for a continuous period of at least 12 months. 20 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 21 1992). 42 U.S.C. 22 A. 23 The ALJ follows a five-step evaluation process to assess The Five-Step Evaluation Process 24 whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 25 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 26 1995) (as amended Apr. 9, 1996). 27 Commissioner must determine whether the claimant is currently 28 engaged in substantial gainful activity; if so, the claimant is In the first step, the 3 1 not disabled and the claim must be denied. 2 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). 3 If the claimant is not engaged in substantial gainful 4 activity, the second step requires the Commissioner to determine 5 whether the claimant has a “severe” impairment or combination of 6 impairments significantly limiting her ability to do basic work 7 activities; if not, the claimant is not disabled and her claim 8 must be denied. 9 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of 10 impairments, the third step requires the Commissioner to 11 determine whether the impairment or combination of impairments 12 meets or equals an impairment in the Listing of Impairments set 13 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 14 disability is conclusively presumed. 15 416.920(a)(4)(iii). §§ 404.1520(a)(4)(iii), 16 If the claimant’s impairment or combination of impairments 17 does not meet or equal an impairment in the Listing, the fourth 18 step requires the Commissioner to determine whether the claimant 19 has sufficient residual functional capacity (“RFC”)2 to perform 20 her past work; if so, she is not disabled and the claim must be 21 denied. 22 has the burden of proving she is unable to perform past relevant 23 work. 24 burden, a prima facie case of disability is established. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Drouin, 966 F.2d at 1257. The claimant If the claimant meets that Id. If 25 2 26 27 28 RFC is what a claimant can do despite existing exertional and nonexertional limitations. §§ 404.1545, 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing § 416.920(a)(4)). 4 1 that happens or if the claimant has no past relevant work, the 2 Commissioner then bears the burden of establishing that the 3 claimant is not disabled because she can perform other 4 substantial gainful work available in the national economy. 5 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. 6 That determination comprises the fifth and final step in the 7 sequential analysis. 8 Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 9 10 B. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); The ALJ’s Application of the Five-Step Process At step one, the ALJ found that Plaintiff had not engaged in 11 substantial gainful activity since June 15, 2006. 12 step two, she concluded that Plaintiff had severe impairments of 13 “history of fibromyalgia; obstructive sleep apnea; 14 osteoarthritis; degenerative disc disease of the cervical spine; 15 obesity; chronic pain syndrome; mild to moderate degenerative 16 joint disease of the right shoulder, status-post surgery; major 17 depressive disorder; attention deficit disorder/attention deficit 18 hyperactivity disorder; and anxiety.” 19 three, she determined that Plaintiff’s impairments did not meet 20 or equal a listing. 21 Plaintiff had the RFC to perform a limited range of light work: (AR 17.) (AR 16-17.) (AR 16.) At step At step four, the ALJ found that 22 Standing, walking, and sitting would all be consistent 23 with 24 position approximately every 30-45 minutes, the change in 25 position would be about 1-5 minutes, and she would be 26 able to remain on task during that time. 27 limited to occasional postural activities but no climbing 28 of light ladders, work but ropes, [she] or At would scaffolds 5 need and to no alternate [She] is work at 1 unprotected heights, around moving machinery, or other 2 hazards. 3 dominant right upper extremity but no lifting overhead 4 with the right dominant upper extremity. 5 dominant left hand should be limited to frequent fine 6 manipulation and there should be no repetitive push or 7 pull with the right lower extremity such as operating 8 foot petals [sic]. 9 to fumes, odors, gases, or other pulmonary irritants as 10 well as extreme temperatures and avoid frequently walking 11 on uneven terrain. 12 production 13 concentrate for up to 2 hours at a time but is limited to 14 unskilled 15 interaction with the general public. She can occasionally reach overhead with the or She must avoid concentrated exposure [She] is limited to no fast paced assembly simple The non- tasks line with type work. occasional She can non-intense 16 (AR 19-20.) 17 Plaintiff was unable to perform her past relevant work. 18 27.) 19 education, work experience, and RFC, she could perform three 20 “representative” jobs in the national economy. 21 Thus, the ALJ found Plaintiff not disabled. Based on the VE’s testimony, the ALJ concluded that (AR 26- At step five, the ALJ found that given Plaintiff’s age, 22 23 24 25 26 27 28 6 (AR 27-28.) (AR 28.) 1 2 V. DISCUSSION3 A. 3 4 The ALJ Erred in Discounting Plaintiff’s Subjective Symptoms Plaintiff argues that the ALJ improperly rejected her 5 subjective symptom statements. 6 discussed below, the ALJ materially erred in discounting her 7 statements’ credibility. 8 9 1. (J. Stip. at 5-12, 20-21.) As Accordingly, remand is warranted. Applicable law An ALJ’s assessment of the credibility of a claimant’s 10 allegations concerning the severity of his symptoms is entitled 11 to “great weight.” 12 Cir. 1989) (as amended); Nyman v. Heckler, 779 F.2d 528, 531 (9th 13 Cir. 1985) (as amended Feb. 24, 1986). 14 ‘required to believe every allegation of disabling pain, or else 15 disability benefits would be available for the asking, a result 16 plainly contrary to 42 U.S.C. § 423(d)(5)(A).’” 17 Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. 18 Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 19 20 See Weetman v. Sullivan, 877 F.2d 20, 22 (9th “[T]he ALJ is not Molina v. In evaluating a claimant’s subjective symptom testimony, the ALJ engages in a two-step analysis. See Lingenfelter, 504 F.3d 21 22 23 24 25 26 27 28 3 In Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018), the Supreme Court recently held that ALJs of the Securities and Exchange Commission are “Officers of the United States” and thus subject to the Appointments Clause. To the extent Lucia applies to Social Security ALJs, Plaintiff has forfeited the issue by failing to raise it during her administrative proceedings. (See AR 8-9, 33-66, 335-37; J. Stip. at 5-12, 20-21); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as amended) (plaintiff forfeits issues not raised before ALJ or Appeals Council). 7 1 at 1035-36; see also SSR 96-7p, 1996 WL 374186 (July 2, 1996).4 2 “First, the ALJ must determine whether the claimant has presented 3 objective medical evidence of an underlying impairment [that] 4 could reasonably be expected to produce the pain or other 5 symptoms alleged.” 6 objective medical evidence exists, the ALJ may not reject a 7 claimant’s testimony “simply because there is no showing that the 8 impairment can reasonably produce the degree of symptom alleged.” 9 Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in 10 11 Lingenfelter, 504 F.3d at 1036. If such original). If the claimant meets the first test, the ALJ may discredit 12 the claimant’s subjective symptom testimony only if he makes 13 specific findings that support the conclusion. 14 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). 15 affirmative evidence of malingering, the ALJ must provide a 16 “clear and convincing” reason for rejecting the claimant’s 17 testimony. See Berry v. Absent a finding or Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 18 19 20 21 22 23 24 25 26 27 28 4 Social Security Ruling 16-3p, 2016 WL 1119029, effective March 16, 2016, rescinded SSR 96-7p, which provided the framework for assessing the credibility of a claimant’s statements. SSR 16-3p was not in effect at the time of the ALJ’s decision in this case, however, and therefore does not apply. Still, the Ninth Circuit has clarified: [SSR 16-3p] makes clear what our precedent already required: that assessments of an individual’s testimony by an ALJ are designed to “evaluate the intensity and persistence of symptoms after [the ALJ] find[s] that the individual has a medically determinable impairment(s) that could reasonably be expected to produce those symptoms,” and not to delve into wide-ranging scrutiny of the claimant’s character and apparent truthfulness. Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (as amended) (alterations in original) (quoting SSR 16-3p). 8 1 2015) (as amended); Treichler v. Comm’r of Soc. Sec. Admin., 775 2 F.3d 1090, 1102 (9th Cir. 2014). 3 ALJ may consider, among other factors, (1) ordinary techniques of 4 credibility evaluation, such as the claimant’s reputation for 5 lying, prior inconsistent statements, and other testimony by the 6 claimant that appears less than candid; (2) unexplained or 7 inadequately explained failure to seek treatment or to follow a 8 prescribed course of treatment; (3) the claimant’s daily 9 activities; (4) the claimant’s work record; and (5) testimony In assessing credibility, the 10 from physicians and third parties. 11 Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (as amended); Thomas 12 v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). 13 credibility finding is supported by substantial evidence in the 14 record, the reviewing court “may not engage in second-guessing.” 15 Thomas, 278 F.3d at 959. 16 2. 17 18 19 Rounds v. Comm’r Soc. Sec. If the ALJ’s Relevant background i. Treatment Records5 Plaintiff began seeing internist Rick Tang in November 2006.6 (AR 530.) Dr. Tang observed that she “had multiple 20 21 22 23 24 25 26 27 28 5 Plaintiff consistently received primary-care treatment at Riverside Medical Clinic, but she saw several different doctors there. (See, e.g., AR 512-15 (family physician Steven A. Salzman), 517-18 (internist Rick Tang), 533-34 (gastroenterologist Philip T. Chen), 557-58 (pulmonologist Andrew T. Duke).) 6 At Plaintiff’s first appointment with Dr. Tang, she reported that she “ha[d] been under the care of Dr. Steven Myering,” who had “done [an] EMG which . . . show[ed] neuropathy.” (AR 530.) She also claimed to have been given a “course of injections” for her pain. (Id.) No such treatment notes, imaging, or injections from before November 2006 appear in the record, however. 9 1 trigger points on [her] neck, shoulders, hips, and elbows.” 2 (Id.) 3 “[f]ibromyalgia with multiple trigger points,” “[a]nxiety/ 4 depression,” and “[q]uestionable neuropathy with pain in both 5 arms”; he prescribed amitriptyline7 and Prozac.8 6 February 2007, Plaintiff “complain[ed] of increasing [and] achy 7 body pain everywhere,” and Dr. Tang wrote that it was “unclear” 8 whether Plaintiff’s “[d]iffuse body ache[s]” were “fibromyalgia 9 versus undiagnosed inflamma[to]ry arthritis.” He assessed her with “[c]hronic pain syndrome,” (AR 532.) (AR 525.) In He 10 advised taking ibuprofen, prescribed Zantac9 and temazepam,10 and 11 referred her to rheumatologist Andre Babajanians to obtain 12 further information on her chronic pain. 13 found that Plaintiff had “[m]ultiple symmetric tender points” in 14 her musculoskeletal soft tissue at “16 out of 18 defined areas.” 15 (AR 524.) 16 which showed “[m]inimal degenerative disk disease at C5-6,” with (Id.) Dr. Babajanians He requested an x-ray of her cervical spine (id.), 17 7 18 19 20 21 22 Amitriptyline treats depression by improving mood, relieving anxiety, helping patients sleep better, and increasing energy levels. See Amitriptyline HCL, WebMD, https:// www.webmd.com/drugs/2/drug-8611/amitriptyline-oral/details (last visited July 23, 2018). 8 Prozac treats depression by improving mood, sleep, appetite, and energy level. See Prozac, WebMD, https:// www.webmd.com/drugs/2/drug-6997/prozac-oral/details (last visited July 23, 2018). 23 9 24 25 26 27 28 Zantac treats stomach and intestine ulcers. See Zantac Tablet, WebMD, https://www.webmd.com/drugs/2/drug-4090-7033/ zantac-oral/ranitidine-tablet-oral/details (last visited July 23, 2018). 10 Temazepam treats insomnia by helping patients fall asleep faster, stay asleep longer, and decrease how often they wake up during the night. See Temazepam, WebMD, https://www.webmd.com/ drugs/2/drug-8715/temazepam-oral/details (last visited July 23, 2018). 10 1 “very minimal anterior osteophytes,” and was otherwise “normal” 2 (AR 493). 3 [and] lack of evidence for inflammatory process, consistent with 4 fibromyalgia”; “[c]ervical spondylosis”; and “early 5 osteoarthritis.” 6 and temazepam and to try “50 mg” of Lyrica11 “for further pain 7 control.” 8 9 He diagnosed “[c]hronic generalized fatigue, myalgia, (AR 524.) He advised her to continue Motrin (Id.) In April 2007, Plaintiff reported no “overall improvement” in her “generalized aches and pains [and] stiffness,” and Dr. 10 Babajanians diagnosed “[f]ibromyalgia syndrome.” 11 was taking Prozac and amitriptyline, and he also prescribed 12 Neurontin.12 13 anxiety and depression” and complained of “fatigue and daytime 14 somnolence.” 15 pain[s]” upon palpation of her “neck, shoulder, elbows[,] and 16 hip.” 17 . . . related to sleep apnea” and ordered a sleep study. 18 see also AR 474.) (Id.) (Id.) (AR 522.) She In May 2007, Plaintiff reported “increased (AR 521.) She exhibited “[m]ultiple aches and Dr. Tang noted that her chronic fatigue “may be (Id.; He wrote that her “[d]iffuse[] muscle aches 19 20 21 22 23 24 11 25 26 27 28 Lyrica treats fibromyalgia pain. See Lyrica, WebMD, https://www.webmd.com/drugs/2/drug-93965/lyrica-oral/details (last visited July 23, 2018). 12 Neurontin relieves nerve pain and prevents and controls seizures. See Neurontin Capsule, WebMD, https://www.webmd.com/ drugs/2/drug-9845-8217/neurontin-oral/gabapentin-oral/details (last visited July 23, 2018). 11 1 may be fibromyalgia” and prescribed Cymbalta13 and Tagamet14 on 2 top of her other prescriptions. 3 performed in June 2007 and revealed that Plaintiff had 4 “[m]oderate obstructive sleep apnea/hypopnea” and was “a good 5 candidate for ongoing treatment with CPAP.” 6 August 2007, it was noted that she “could not tolerate [the] 7 standard CPAP mask” (AR 471); Dr. Tang adjusted her prescription 8 to a “nasal pillow[] mirage swift” CPAP mask (AR 472-73). 9 (AR 521.) The sleep study was (AR 457-59.) In In October 2007, Plaintiff complained to Dr. Babajanians of 10 “severe generalized pain” and “difficulty moving.” 11 November 2007, she reported to Dr. Tang that she had “diffuse 12 muscle spasm[s] of both legs to the point that she could not 13 walk,” and he found “diffuse pain on palpating [her] neck, upper 14 trapezius, elbows, hips, back, and legs.” 15 prescribed Vicodin15 “three times a day [on an] as needed basis 16 for severe pain.” 17 Robaxin16 “as needed for muscle spasm,” and “change[d] her over” (Id.) (AR 519.) (AR 518.) In He He also increased her Neurontin, added 18 19 20 21 22 23 24 13 Cymbalta helps relieve ongoing pain from fibromyalgia. See Cymbalta, WebMD, https://www.webmd.com/drugs/2/drug-91491/ cymbalta-oral/details (last visited July 23, 2018). It also treats depression and anxiety. See id. 14 Tagamet treats stomach and intestine ulcers and prevents them from returning once they have healed. See Tagamet Tablet, WebMD, https://www.webmd.com/drugs/2/drug-7035/tagamet-oral/ details (last visited July 23, 2018). 15 25 26 27 28 Vicodin is a narcotic pain reliever used to relieve moderate to severe pain. See Vicodin, WebMD, https:// www.webmd.com/drugs/2/drug-3459/vicodin-oral/details (last visited July 23, 2018). 16 Robaxin treats muscle spasms and pain. See Robaxin, WebMD, https://www.webmd.com/drugs/2/drug-11197/robaxin-oral/ details (last visited July 23, 2018). 12 1 from Prozac to Celexa.17 2 slight improve[ment] but continue[d] to have lots of aches and 3 pains.” 4 with balance issues,” and “walk[ed] with a cane.” 5 “diffuse pain everywhere” upon palpation, but Dr. Tang did not 6 see any “peripheral shaking or tremor.” 7 Neurontin, continued Vicodin, Celexa, and Robaxin, and referred 8 her to neurologist Ronald Bailey to address her “ambulatory 9 dysfunctions and loss of balance and shaking on the left side.”18 10 11 (AR 517.) (Id.) In December 2007, she “ha[d] She was “wobbly,” had a “lot of difficulty (Id.) (Id.) She had He increased her (Id.) In May 2008, Dr. Tang wrote that “[i]nitially Lyrica [had] 12 helped [her] pain but [they] need[ed] to keep upping her [dosage] 13 as her pain ke[pt] on worsening.” 14 with “[i]ncreasing” depression, anxiety, and diffuse pain; he 15 also noted that her foot pain affected her ambulation. 16 Her Lyrica prescription was increased from “150 mg” to “300 mg” (AR 516.) He assessed her (Id.) 17 18 19 20 21 22 23 24 25 26 27 28 17 Celexa treats depression. See Celexa, WebMD, https:// www.webmd.com/drugs/2/drug-8603/celexa-oral/details (last visited July 23, 2018). 18 Dr. Bailey saw Plaintiff for an initial neurologic consultation in January 2008. (See AR 541-43.) “Coordination testing reveal[ed] normal finger-to-nose-to-finger testing”; motor examination “demonstrate[d] normal bulk, tone, and strength throughout”; reflex testing “reveal[ed] flexor plantar responses bilaterally, 1-2+ and symmetric throughout”; and sensory examination was “normal.” (AR 542.) Dr. Bailey’s “impression” was “[a]ches, pains, and cramps syndrome.” (Id.) At a follow-up appointment in March 2008, Plaintiff demonstrated “completely normal bulk, tone, and strength in all muscle groups” and had “12+ and symmetric reflexes throughout”; “[s]ensory examination [was] normal.” (AR 535.) Dr. Bailey performed a nerveconduction study that same day, with “[n]ormal” results; there was “no electrophysiologic evidence to support a primary disorder of nerve or muscle.” (AR 536.) He prescribed “75 mg” of Lyrica twice a day. (AR 535.) 13 1 twice a day “for better pain control.” (Id.) 2 In October and November 2009, she had “pain in both her 3 upper and lower body,” “multiple trigger points,” “abdominal 4 pain,” and depression.19 5 apnea but hadn’t used her CPAP machine in two years. 6 514, 557.) 7 intact,” and her deep tendon reflexes were “within normal 8 limits.” 9 512.) 10 11 (See AR 510, 512, 514.) She had sleep (AR 512, Her “[s]ensory and motor [nerves were] grossly (AR 513-14.) She also had “epigastric pain.” (AR 510, Lyrica was increased to “350 mg” twice a day and Vicodin was continued. (AR 510, 512, 514.) Dr. Babajanians saw her for a rheumatology consult in 12 November 2009. 13 points” in her upper and lower back, chest wall, neck, and knees, 14 totaling “12/18 defined points.” 15 synovial swelling” in her peripheral joints but had “[s]light 16 discomfort with full abduction of [her] arms and shoulders [and] 17 limitation in [her] lumbar flexion.” 18 Lyrica had been increased to “700 mg per day” and “hepatic 19 enzymes [were] mildly elevated”; though her fibromyalgia showed 20 “symptomatic improvement,” she had “[m]ild hepatitis, likely 21 associated with [her] medications.” 22 “[d]ecreas[ing] [her] dose of Lyrica gradually” to a “maximum 23 dose [of] 450 mg per day” and “[m]onitor[ing] [her] liver 24 function tests.” 25 26 (See AR 508-09.) He observed “[m]ultiple tender (AR 508.) (Id.) She had “[n]o He noted that her (AR 508-09.) He advised (AR 509.) In December 2009, she had a cardiovascular consult with cardiologist Houshang Karimi to address “atypical chest pain.” 27 28 19 No treatment notes appear in the record from between May 2008 and October 2009. 14 1 (See AR 560-62.) 2 treadmill stress test in November, which was “nondiagnostic” 3 because she did not reach target heart rate. 4 also AR 467-69.) 5 distress,” and her sensation and muscle strength were “intact.” 6 (AR 560.) 7 ventricle] function and right heart pressures given her [history] 8 of [obstructive sleep apnea] and being short of breath 9 chronically.” 10 Dr. Karimi wrote that Plaintiff had taken a (AR 560-61; see He observed that she was “in no apparent He recommended an “echo to evaluate the overall [left (AR 561.) In July 2010, Plaintiff’s depression was “doing relatively 11 well.” 12 fibromyalgia, though she complained of “aching pain” in her lower 13 back. 14 down the legs,” but it got worse “with prolonged walking” and 15 “when going from . . . sitting or lying to a standing position.” 16 (Id.) 17 “good range of motion in [her] back,” with “no paraspinous 18 spasm.” 19 lumbar sacral spine” or “over the sciatic notch.” 20 deep tendon reflexes were “within normal limits,” and her 21 straight-leg raise was “negative.” 22 Lyrica at “150” mg twice a day and also prescribed Naprosyn.20 23 (AR 506-07.) 24 (AR 506.) (Id.) Lyrica had been “helpful” for her The pain “d[id] not radiate through the buttocks or Family physician Steven A. Salzman observed that she had (AR 507.) She had “no tenderness on palpation of the (Id.) (Id.) Her He “[r]enew[ed]” her In October 2010, she had a rheumatology follow-up with Dr. 25 26 27 28 20 Naprosyn is a nonsteroidal antiinflammatory that relieves pain from muscle aches and reduces pain, swelling, and joint stiffness caused by arthritis. See Naprosyn Tablet, WebMD, https://www.webmd.com/drugs/2/drug-1705-1289/naprosyn-oral/ naproxen-oral/details (last visited July 23, 2018). 15 1 Babajanians. 2 feel relatively well, more lucid, [and] able to concentrate on 3 tasks better” on Lyrica. 4 abdominal discomfort” that “extend[ed] to the mid back region” 5 and “increas[ed] in intensity after eating.” 6 Babajanians observed “tender points in [her] upper and lower back 7 and chest” at “6/18 defined areas” and “normal and symmetric” 8 muscle strength. 9 “symptomatically stable” and “[c]ontinue[d] Lyrica.” 10 (AR 505.) (Id.) She reported that she “continue[d] to (Id.) Her “main problem” was “mid (Id.) Dr. He noted that her fibromyalgia was (Id.) In February 2011, Plaintiff went to urgent care complaining 11 of mid- and low-back pain. 12 “sore throat” and other related symptoms, but her “[o]ther pains 13 [were] relatively controlled on [L]yrica and naproxen.”21 14 497.) 15 “slightly better since [being] on Lyrica.” 16 Babajanians observed that she had “persistent soft tissue tender 17 points” on her back and chest wall and “normal and symmetric” 18 muscle strength. 19 pain “flare[d] up with walking.” 20 went to urgent care, reporting “moderate,” “intermittent[]” chest 21 pain in the “substernal region” “at a severity of 7/10.” 22 429.) 23 abdominal pain, back pain, and nausea. 24 “tenderness” in her abdomen and on her “anterior left chest 25 wall.” (AR 476.) In April 2011, she had a (AR In May 2011, she felt an “achy sensation all over” but was (Id.) (AR 496.) Dr. In July 2011, she reported that her back (AR 494.) In August 2011, she (AR The “sharp” pain “radiate[d] to [her] mid back,” causing (AR 430.) (Id.) She exhibited Her physical exam was “[n]egative for 26 27 28 21 Naproxen is a generic version of Naprosyn. See Naproxen Tablet, WebMD, https://www.webmd.com/drugs/2/drug-5173-1289/ naproxen-oral/naproxen-oral/details (last visited July 23, 2018). 16 1 myalgias,” “dizziness, tingling, tremors and headaches” (id.), 2 and an “unremarkable” chest x-ray showed “[n]o definite acute 3 abnormality” (AR 449-50). 4 her pain and received one ketorolac injection.22 5 October 2011, she had no abdominal tenderness or chest pain. 6 421.) 7 levels of pain,” she was “[f]eeling well” and “fe[lt] able to do 8 most of her desired activity.” 9 “motivation or laziness ha[d] made it tough to continue 10 She was advised to take ibuprofen for (AR 431.) In (AR Plaintiff reported that though she “ha[d] some baseline (Id.) exercising as much as she’d like.” 11 She stated that (Id.) In November 2011, Plaintiff complained of a “slight increase 12 in intensity of generalized fatigue and myalgia” because of her 13 sleep apnea. 14 stated that “Lyrica remain[ed] effective.” 15 Babajanians wrote that she was “[p]ositive for myalgias and joint 16 pain,” exhibited musculoskeletal “tenderness,” and had “[m]ild 17 diffuse soft tissue tenderness including 12/18 defined tender 18 points.” 19 (Id.) 20 (AR 414.) (AR 415.) She was “involved in exercises” and (Id.) Dr. He prescribed a trial of nortriptyline.23 In March 2012, she stated that she had a headache, though 21 she did not get them “routinely.” (AR 405.) She had right-knee 22 tenderness, with a “[n]ormal” musculoskeletal range of motion (AR 23 406), and was positive for “malaise/fatigue” and myalgias (AR 24 22 25 26 27 28 Ketorolac is a nonsteroidal antiinflammatory used to relieve moderate to severe pain. See Ketorolac Tromethamine Syringe, WebMD, https://www.webmd.com/drugs/2/drug-6419/ ketorolac-injection/details (last visited July 23, 2018). 23 Nortriptyline treats depression. See Nortriptyline HCL, WebMD, https://www.webmd.com/drugs/2/drug-10710/ nortriptyline-oral/details (last visited July 23, 2018). 17 1 398). That same month, she began receiving mental-health 2 treatment from psychologist Ronald Offenstein to address her 3 grief after the passing of her father-in-law. 4 also AR 352-54 (initial clinical assessment completed by nurse 5 practitioner).) 6 memory impairment but had “[m]oderate[ly]” poor concentration and 7 “[s]evere[ly]” decreased energy. 8 that she was “motivated” but had “poor insight” (AR 362); she had 9 “average” intelligence, was “distractible,” and had “intact” (AR 361, 405; see She did not have orientation, cognitive, or (AR 361.) Dr. Offenstein wrote 10 judgment and memory (AR 363). 11 holding an occupation and accomplishing personal-care and daily- 12 living activities. 13 She had “[s]evere” impairments in (Id.) In April 2012, she told Dr. Offenstein that she “believe[d] 14 she need[ed] to get a job” but that “nobody would hire her” 15 because she couldn’t “read, write, [or] spell.” 16 stated that she “didn’t finish school” but “went to adult 17 school.” 18 memory impairment but had “[s]evere[ly]” poor concentration. 19 (Id.) She was prescribed “25 mg” of Topamax24 twice a day. 20 351.) In May 2012, he did not indicate that she had any mental- 21 impairment symptoms (AR 357), but that same month, Kathleen 22 Kelly, a licensed clinical social worker, wrote that Plaintiff 23 had “cognitive impairment” and “[m]oderate[ly]” poor 24 concentration (AR 356). (Id.) (AR 358.) She She did not have any orientation, cognitive, or (AR She had “[m]oderate” problems with her 25 26 27 28 24 Topamax prevents migraine headaches and seizures. See Topamax, WebMD, https://www.webmd.com/drugs/2/drug-14494-6019/ topamax-oral/topiramate-oral/details (last visited July 23, 2018). 18 personal care. 2 be increased to “100 mg” after a week. 3 prescription was increased to “150 mg” in June 2012. 4 (Id.) She was prescribed “50 mg” of Zoloft,25 to 1 (AR 349.) That (AR 348.) The same month, Plaintiff complained of “pain all over,” 5 specifically describing “knee pain.” 6 completing “extensive workouts” to lose weight, though they 7 caused “some pain.” 8 prescribed a trial of tramadol26 “for pain” and to address 9 Plaintiff’s complaints that “[V]icodin on rare occasion [was] too (AR 390.) (AR 390-91.) She mentioned Gastroenterologist Philip T. Chen 10 strong.” 11 sleep apnea. 12 CPAP mask (AR 382-33), so another was ordered for her (AR 461- 13 62). 14 mask” (AR 376); another was ordered (AR 463-65). 15 month, she attended a follow-up appointment with Dr. Babajanians, 16 complaining of “generalized soft tissue pain, arthralgia, 17 stiffness, [and] fatigue.” 18 medications were “inadequate in controlling [the] intensity of 19 [her] pain.” 20 “exhibit[ed] tenderness” and “[m]ultiple symmetric soft tissue (AR 390-91.) (AR 382.) In August 2012, she was reevaluated for She had been “unable to tolerate” the In October 2012, however, she still “struggle[d] with each (Id.) (AR 366.) That same She stated that her Dr. Babajanians observed that she 21 22 23 24 25 26 27 28 25 Zoloft treats depression, panic attacks, and social anxiety disorder, among other uses. See Zoloft, WebMD, https:// www.webmd.com/drugs/2/drug-35-8095/zoloft-oral/sertraline-oral/ details (last visited July 23, 2018). 26 Tramadol is a narcotic used to relieve moderate to moderately severe pain. See Tramadol HCL, WebMD, https:// www.webmd.com/drugs/2/drug-4398-5239/tramadol-oral/tramadol-oral/ details (last visited July 23, 2018). 19 1 tender points, early Heberden nodes[,]27 [and] [m]ild crepitus in 2 [her] shoulders and knees.” 3 discontinued (see AR 367, 384), and Dr. Babajanians prescribed a 4 “Butrans patch,”28 to be used once a week (AR 367). 5 (AR 367.) Vicodin and tramadol were In January 2013, she reported “generalized” “pain all over 6 [her] body.” 7 spur[s]”; the spur on her left foot was “moderately large” but on 8 her right it was “[s]mall,” and the imaging was “otherwise 9 unremarkable.” (AR 625.) X-rays of her feet revealed “calcaneal (AR 601-02.) X-rays of both hands were 10 “[u]nremarkable” (AR 603), and a pelvic x-ray showed “no 11 evidence” to “suggest rheumatoid arthritis” (AR 604). 12 Plaintiff’s “mid and upper cervical spine” was similarly 13 “[u]nremarkable.” 14 evidence of bone erosion to suggest rheumatoid arthritis” (AR 15 606) but had “grade 1 retrolisthesis of L5 on S1" (AR 605). 16 Imaging of her thoracic spine was “[e]ssentially normal.” 17 606-07.) 18 (AR 605.) Imaging of Her lumbosacral spine showed “no (AR In February 2013, she was noted as having “18/18 tender 19 points.” 20 for back pain, though she was “able to ambulate.” 21 In June 2013, she complained of sternal pain and a tight chest. 22 (AR 579, 584.) (AR 624.) In May 2013, Plaintiff sought emergency care (AR 588-89.) A few days later, she was assessed at the 23 24 25 26 27 28 27 Heberden’s nodes are bony swellings that form on the hands as a result of osteoarthritis. See What Are Heberden’s Nodes?, Healthline, https://www.healthline.com/health/ osteoarthritis/heberdens-nodes (last updated May 9, 2017). 28 A Butrans patch contains a narcotic used to relieve severe ongoing pain. See Butrans Patch, Transdermal Weekly, WebMD, https://www.webmd.com/drugs/2/drug-155153/ butrans-transdermal/details (last visited July 23, 2018). 20 1 emergency department with “[a]typical [chest pain].” 2 A chest x-ray that month showed “[n]o acute disease.” 3 In September 2013, Plaintiff complained of left-finger and -thumb 4 pain that occurred “after trying to pull a handle with a lot [of] 5 effort.” 6 ordered (AR 612-13); her left hand was “normal,” with “intact” 7 soft tissues (AR 627), and her left thumb had “no fractures, 8 subluxations, foreign bodies or bony destructive processes” (AR 9 628). (AR 612.) (AR 580.) (AR 600.) X-rays of her left hand and thumb were She received steroid injections in each finger, and the 10 “pain released after [the] injection[s].” 11 2013, she reported that her right shoulder was injured when a 12 “large dog yanked [on the] leash” (AR 649), but an x-ray of the 13 shoulder was “normal” (AR 664). 14 (AR 611.) In November In January 2014, Plaintiff was seen for her chronic shoulder 15 pain, and an MRI was ordered. (AR 643.) 16 “[m]ild-to-moderate supraspinatus,” “mild infraspinatus,” 17 “subscapularis tendinosis,” and “[m]ild-to-moderate degenerative 18 changes at the acromioclavicular joint”; “[n]o high-grade partial 19 or full-thickness rotator cuff tendon tear, tendon retraction or 20 muscle atrophy” was found. 21 underwent an overnight sleep study that confirmed she had “[m]ild 22 overall [o]bstructive [s]leep [a]pnea,” with “[s]evere REM 23 related obstructive apneas/hypopneas.” 24 a CPAP machine calibrated to a pressure of 10 cm, however, the 25 “apneas/hypopneas and snoring were eliminated, including during 26 REM sleep while on [her] back.” 27 was referred to “ortho” to address “shoulder tenderness” from her 28 “right rotator cuff impingement.” (AR 652-53.) The MRI revealed In March 2014, she (AR 656-57.) (AR 656.) 21 When using In April 2014, she (AR 641, 817.) Orthopedic 1 surgeon Raja Dhalla ordered “shoulder arthroscopy with 2 subacromial decompression” (AR 744), which he performed on May 3 20, 2014 (AR 720-22, 733-34, 742). 4 to her surgery; the results were “[a]bnormal” when “compared” 5 with a 2009 ECG. 6 “[a]rthroscopic repair” of the tear and “debridement of [the] 7 labrum and synovitis.” 8 Plaintiff with “[r]ight shoulder rotator cuff impingement 9 syndrome” and observed “findings of synovitis” and a “superior 10 labrum tear.” 11 same day. 12 (AR 769-70.) (Id.) He also ordered an ECG prior Dr. Dhalla performed an (AR 766.) Postsurgery, he diagnosed She was discharged from the hospital that (AR 808.) Also in May, Plaintiff obtained care at an arthritis clinic 13 for “persistent” “joint pain” in “multiple sites.” 14 826.) 15 at night, fatigue, mood swing[s], memory loss, difficulty with 16 concentration, dizziness, numbness/tingling, abdominal pain, 17 [and] constipation” but denied “interrupted sleep, severe 18 headache[s], crying spells, exercis[ing] regularly[,] or 19 diarrhea.” 20 exercise regularly” and to “use [her] C-PAP machine on a regular 21 basis.” 22 Flexeril30 to treat her pain. 23 complained of “shortness of breath”; she was advised to continue (AR 821, 824, She reported “active depression, stress/anxiety, snor[ing] (Id.) She was “encouraged to lose weight and (AR 822, 825, 827.) She was prescribed meloxicam29 and (AR 822.) In September 2014, she 24 29 25 26 27 28 Meloxicam is a nonsteroidal antiinflammatory that reduces pain, swelling, and stiffness of the joints. See Meloxicam, WebMD, https://www.webmd.com/drugs/2/drug-911/meloxicam-oral/ details (last visited July 23, 2018). 30 Flexeril treats muscle spasms by relaxing the muscles. See Flexeril Tablet, WebMD, https://www.webmd.com/drugs/2/drug11372/flexeril-oral/details (last visited July 23, 2018). 22 1 using her CPAP machine and was referred to pulmonology. 2 39.) 3 abnormalities.” 4 results were “normal” when compared with her May 2014 test. 5 715; see also AR 699.) 6 limits.” 7 evaluation,” however, and was released “against medical advice.” 8 (AR 696, 710-11.) 9 (AR 638- She visited the emergency room but showed “no significant (AR 687, 699.) She underwent another ECG; the (AR A chest x-ray was also “within normal (AR 698, 714.) She refused to stay to “complete her In December 2014, Plaintiff complained of “pain in [her] 10 legs” because she “ha[d] been walking 3 miles/day.” 11 She was diagnosed with “shin splints” and advised to “ice” her 12 legs and “rest from walking.” 13 visited a foot-and-ankle specialist for “orthotics for walking 14 shoes” because she was “trying to stay active to lose weight.” 15 (AR 676.) 16 flattening/decreased medial arch” bilaterally, showed “[g]ood 17 muscle strength,” and had “adequate muscle tone and symmetry” 18 bilaterally. 19 ankle” was “[d]ecreased.” 20 refilled her Lyrica prescription and reported that her “pain 21 [was] controlled” on it; she “denie[d] any [other] complaints.” 22 (AR 633.) 23 and in April she stated that they “help[ed] in [her] walking 24 shoes” and “seem[ed] to be improving some of [her] painful 25 symptoms” (AR 669-70). 26 time” and noted only that she was “concerned with arthritis in 27 [her] hands.” 28 (Id.) (AR 635.) In January 2015, she She exhibited “[s]table foot posture with (Id.) Her “range of motion for all joints from the (Id.) In February 2015, Plaintiff She was fitted for orthotics in March 2015 (AR 671), She had “no [foot] complaints at th[at] (AR 670.) On April 22, 2015, she reported to family physician Gita 23 1 Tavassoli that “several days” prior she had “passed out” while 2 “shaking” and had “wet herself.” 3 ordered an ECG and EEG and advised “avoid[ing] taking [her] 4 med[ications] together.” 5 679.) 6 reporting that she had had two such episodes of “confusion, 7 disorientation, with whole body jerking,” resulting in her being 8 “unresponsive on the floor for a few minutes.” 9 Arora noted that her symptoms were “indicative of generalized (Id.) (AR 836.) Dr. Tavassoli The EEG was “normal.”31 (AR She saw neurologist Maninder S. Arora in June 2015, (AR 682.) Dr. 10 tonic-clonic seizure” and ordered a brain MRI. 11 MRI demonstrated “no acute or subacute abnormality” and showed 12 only “[m]ild” bilateral mastoid and ethmoid sinus mucosal 13 thickening. 14 subcortical white matter [and] small vessel infarcts,” which 15 apparently was a “very common and non-specific MRI finding,” 16 though the “overall number [was] more than usually seen at 17 [Plaintiff’s] age.” 18 another episode. 19 d[id] not rule out seizure disorder” and prescribed an 20 “antiseizure medication,” Topamax. 21 (AR 681.) (AR 683.) The It found “several old periventricular and (Id.) (AR 684.) In August 2015, Plaintiff reported Dr. Arora noted that a “normal EEG (AR 685.) In June 2015, Plaintiff had a sleep study done, showing that 22 at a pressure of “15.0 cwp” she had a “marked improvement of 23 apnea and hypoxia” and that she “tolerated PAP therapy well.” 24 (AR 844-46.) 25 August 2015, Plaintiff had a bone-density test; the results were Her mask was adjusted in July 2015. (AR 840.) In 26 27 28 31 It doesn’t appear that an ECG was performed after Dr. Tavassoli recommended it. But her most recent ECG before that, in September 2014, was “normal.” (AR 715.) 24 1 “normal.” (AR 832-34.) 2 ii. Consulting Opinions 3 In June 2013, orthopedic surgeon Vicente R. Bernabe saw 4 Plaintiff for a consulting exam, with mostly normal results. 5 (See AR 565-69.) 6 heel walk,” and she “did not use any assistive device to 7 ambulate.” 8 tenderness to palpation,” and its “[r]ange of motion was full and 9 painless.” Her gait was “normal,” she was “able to toe and (AR 566.) (Id.) Her cervical spine had “no significant “[I]nspection of [her] thoracic spine was 10 unrevealing,” and “[p]alpation elicited no tenderness.” 11 567.) 12 spasm” was observed. 13 thoracolumbar and lumbosacral junction,” her “[s]ciatic notches 14 and gluteal muscles were not tender.” 15 “no significant tenderness to palpation,” and her elbows, wrists, 16 hands, hips, knees, ankles, and feet had “no tenderness” at all. 17 (AR 567-68.) 18 and “grossly intact” motor strength in all extremities. 19 (AR Her lumbar spine had a “normal” lordotic curve, and “no (Id.) Though she was “tender at the (Id.) Her shoulders had She also had “full and painless” range of motion (Id.) Dr. Bernabe diagnosed Plaintiff with a “[t]horacolumbar and 20 lumbosacral musculoligamentous strain” and a “[h]istory of 21 fibromyalgia.” 22 carry 50 pounds occasionally and 25 pounds frequently” and push 23 and pull “without limitations.” 24 for “six hours” and sit for “six hours” in an eight-hour day. 25 (AR 569.) 26 limitations. 27 Plaintiff’s medical records in forming his opinion. 28 (AR 568.) He found that she could “lift and (Id.) She could walk and stand She had no agility, manipulative, or postural (Id.) Dr. Bernabe did not review any of (AR 565.) That same month, Plaintiff saw psychologist Colleen Daniel 25 1 for a consulting exam. (AR 572-76.) 2 Plaintiff’s speech was “clear” and her thoughts were “organized,” 3 though “[p]sychomotor slowing” was “evident” and her intellectual 4 functioning was “below average.” 5 “moderately diminished for immediate, intermediate[,] and remote 6 memories,” and she had “markedly diminished” attention and 7 concentration span. 8 judgment, and fund of knowledge. 9 “[g]iven [Plaintiff’s] test results and clinical data,” her (Id.) Upon examination, (AR 574.) Her memory was She possessed “fair” insight, (Id.) Dr. Daniel found that 10 overall cognitive ability fell in the “borderline intellectual 11 functioning range.” 12 tests conducted).) 13 hyperactivity disorder, generalized anxiety disorder, and 14 dysthymic disorder. 15 “understand, remember and carry out short, simplistic 16 instructions with mild difficulty” but would have “moderate 17 difficulty” doing so for tasks with “detailed and complex 18 instructions.” 19 simplistic work-related decisions without special supervision, 20 “mild difficulty” complying with safety- and attendance-related 21 job rules and responding to changes in a normal workplace, and 22 “moderate difficulty” maintaining persistence and pace in a 23 normal workplace. 24 (AR 575; see also AR 574-75 (results of She diagnosed her with attention deficit (AR 576.) (Id.) She opined that Plaintiff could She would have “no difficulty” making (Id.) In July 2013, orthopedic surgeon David Subin reviewed 25 Plaintiff’s record and assessed her functional limitations. 26 88-89, 93.) 27 pounds occasionally and 25 pounds frequently, “[s]tand and/or 28 walk” for “6 hours in an 8-hour workday,” sit for “6 hours in an (AR He determined that she could “lift and/or carry” 50 26 1 8-hour workday,” and “[p]ush and/or pull” an “[u]nlimited” 2 amount. 3 communicative, or environmental limitations. 4 (AR 89.) She had no postural, manipulative, visual, (Id.) In December 2013, internist D. Rose also assessed 5 Plaintiff’s functional limitations. 6 the same exertional limitations as Dr. Subin but determined 7 additional postural and environmental limitations. 8 Plaintiff could “[f]requently” climb ramps and stairs, balance, 9 stoop, kneel, crouch, and crawl but could “[n]ever” climb (AR 103-05, 125.) He found (See id.) 10 ladders, ropes, or scaffolds “due to [her] morbid obesity.” 11 104.) 12 heat, wetness, humidity, noise, vibration, fumes, odors, dusts, 13 gases, and poor ventilation but needed to “[a]void even moderate 14 exposure” to such hazards as “unprotected heights” and “dangerous 15 machinery” “due to [her] morbid obesity.” 16 needed to “avoid frequent walking on uneven terrain” because of 17 her obesity. She could have “[u]nlimited” exposure to extreme cold and (AR 104-05.) She also (AR 105.) 18 19 (AR iii. Daily Activities In April 2013, Plaintiff’s husband filled out a third-party 20 function report (AR 258-66) and helped her complete a function 21 report for herself (AR 267-75). 22 was “unable to walk or stand for periods of time” and didn’t have 23 “good” balance. 24 them”; her niece helped by “bath[ing] them and tak[ing] them 25 outside.”32 (AR 258.) (AR 259.) In his report, he wrote that she She took care of pets by “feed[ing] He wrote that she “use[d] [her] C-PAP 26 27 28 32 In November 2013, Plaintiff reported a sore shoulder after one of her dogs yanked its leash while she was walking it. (AR 649.) Plaintiff thus apparently also walked the dogs. 27 1 machine.” (Id.) He helped her dress by “hook[ing] her bra for 2 her,” but she was able to “take[] showers,” feed herself without 3 problems, shave with a “special razor,” and do her hair, though 4 “sometime[s] she ha[d] trouble lifting [her] arms.” 5 had to remind her to take her medication, and she couldn’t cook 6 because she was “unable to stand for periods of time.” 7 She went outside “daily,” drove, and could go out alone. 8 261.) 9 and clothing.” (Id.) He (AR 260.) (AR She shopped “in stores” a “couple times a month” for “food (Id.) She could count change but was “unable to 10 read or spell words.” 11 friends and family on [the] phone” “daily” but was “unable to do 12 social activities” or walk, stand, or sit “because of [her] 13 pain.” 14 “maybe 150 to 200 feet,” and needed to rest “about 15 minutes” 15 before resuming walking. 16 (AR 262-63.) (Id.) He wrote that she “talk[ed] to She could lift “maybe 5 to 10 pounds,” walk (AR 263.) The function report he helped Plaintiff complete assessed 17 similar limitations. 18 “hands cramp[ed]” when she cooked (AR 269), she went to church 19 regularly on Sundays (AR 271), and she didn’t finish what she 20 started (AR 272). 21 pounds” and was “unable to walk any distance” or “pay attention 22 for any amount of time.” 23 ability to lift, squat, bend, stand, reach, walk, sit, kneel, 24 climb stairs, remember, complete tasks, concentrate, understand, 25 and use her hands. (See AR 267-75.) She stated that her She claimed that she “c[ouldn’t] lift 10 (Id.) Her impairment affected her (Id.) 26 Plaintiff reported to Dr. Daniel in June 2013 that she 27 “spen[t] her time watching television and sleeping” and “need[ed] 28 assistance with household chores, shopping[,] and ambulation.” 28 1 (AR 573.) Her husband “manage[d] the money.” (Id.) 2 a valid driver’s license and [was] able to drive.” She “ha[d] (Id.) 3 In October 2013, Plaintiff’s friend filled out a third-party 4 function report (AR 284-92) and helped Plaintiff complete another 5 function report for herself (AR 293-301). 6 Plaintiff was “weak and in pain constantly [and] her medications 7 limit[ed] her drastically, [as did] her lack of concentration, 8 depression, mobility, drive[,] and energy.” 9 stated that Plaintiff’s niece and nephew did “housework, yard She wrote that (AR 284.) She 10 work, prepare[d] meals, [and] shop[ped].” 11 had “no problem” with personal care but needed “to be reminded or 12 asked if she’[d] taken her med[ication].” 13 her a “couple minutes” to prepare “breakfasts.” 14 went outside “once or twice a day” and traveled by driving or 15 riding in a car. 16 “hour to 2 h[ours]” “once a week” for “food and clothing” and 17 “household supplies.” 18 bills with help but checkbook balancing or writing checks [was] 19 something she c[ouldn’t] do.” 20 “ver[y] well” and partook in “crafts, sewing, [and] art” 21 “depend[ing] on how she[ was] feeling.” 22 patience” and “d[id] not carry her groceries because of pain and 23 weakness.” 24 needing to rest for “5 to 10 min[utes].” 25 attention for “10” or “15” minutes before “get[ting] distracted.” 26 (Id.) 27 28 (AR 287.) (AR 289.) (AR 285.) Plaintiff (AR 285-86.) It took (AR 286.) She She shopped “[i]n stores” for an (Id.) She noted that Plaintiff could “pay (Id.) She watched television (AR 288.) She had “no She could walk “a block maybe” before (Id.) She could pay Plaintiff completed her own October 2013 function report with her friend’s help. (See AR 293-301.) 29 Plaintiff claimed 1 that her “ADD cause[d] [her] to have difficulty learning and 2 remembering stuff.” 3 [her] body that [made] it hurt[] to stand or move around,” and 4 her sleep apnea caused fatigue. 5 a “bowl of cereal, coffee, [or] bagel,” but her niece prepared 6 the “rest of [the] meals.” 7 go out alone. 8 for “an hour to 3 h[ours]” — she “use[d] carts to lean on and 9 mobility carts” to get around the store. (AR 293.) (AR 296.) Her fibromyalgia caused “pain in (Id.) (AR 295.) She prepared such food as She drove a car and could When she shopped — “maybe once a week” (Id.) She spent her 10 days “watching TV and movies, craft[ing], sewing if it [was] a 11 good day, [and] flower arranging,” and she was “pretty good” at 12 doing those activities. 13 April that she went to church on Sundays (see AR 271), by October 14 she apparently had stopped going and went “on a regular basis” 15 only to doctor appointments (AR 297-98). 16 things she was “told or instructed,” and her “medications 17 hamper[ed] [her] seeing and memory.” 18 (AR 297.) Though she had stated in She couldn’t “keep in” (AR 298.) At her August 7, 2015 hearing, Plaintiff testified that she 19 “hurt from head to toe” “[a]ll day” from fibromyalgia and 20 arthritis. 21 she experienced at a “seven” of 10. 22 her pain “pretty much stay[ed] the same” on Lyrica. 23 On an average day, she pet her dogs, watered “out in front of 24 [her] house,” did dishes, watched television, and “exercise[d]” 25 in the pool “a couple times.” 26 all the time” because she had difficulty “keep[ing] grip.” 27 43-44.) 28 in her arms and legs “[e]very day.” (AR 41-42.) She rated the “average amount of pain” (AR 41.) (AR 42-43.) She stated that (AR 41-42.) She “drop[ped] stuff (AR She experienced “shaking in [her] hands” and “sometimes” 30 (AR 45-46.) Her ability to 1 walk and drive was affected by the shaking in her legs. 2 She could lift a “gallon jug” but only “up the steps and that[] 3 [was] about it.” 4 only “10/15” minutes before needing to change position and walk 5 for “maybe ten minutes” before needing to spend “three or four 6 minutes” catching her breath. (AR 48.) (AR 46.) She alleged that she could sit for (AR 48-49.) 7 She testified that she had just “got [her CPAP machine] 8 straightened [out]” and it helped her “sleep a little longer 9 through the night,” but she still got “air in [her] eyes.” (AR 10 49-50.) 11 after surgery and therapy but that it now had “a pull to it . . . 12 when [she] grip[ped] something” and “it hurt[] if [she] lift[ed] 13 [something] heavy.” 14 because of her recent seizures. 15 “ha[dn’t] tried to work because [she] d[idn’t] know what [she] 16 c[ould] do” with her limitations. 17 18 She stated that her shoulder was “doing really good” 3. (AR 51.) She hadn’t been driving “at all” (AR 53-54.) She said that she (AR 56.) Analysis The ALJ found that Plaintiff’s symptom statements were “not 19 entirely credible” because (1) the “objective findings . . . 20 fail[ed] to provide strong support for [her] allegations of 21 disabling symptoms and limitations” (AR 21), (2) her treatment 22 was “essentially conservative in nature” (AR 21, 24), (3) her 23 “pain was controlled on Lyrica” (AR 23), (4) she was “non- 24 compliant with CPAP usage” (id.), (5) her daily activities were 25 “indicative of greater functional capabilities” (AR 25), and (6) 26 her “marginal intermittent and part-time” work history indicated 27 that a “lack of interest in working” rather than her medical 28 conditions “account[ed] for her current lack of employment” 31 1 (id.). Plaintiff argues that the ALJ improperly rejected her 2 “pain and symptom testimony.” 3 correct; the ALJ materially erred in discounting her statements’ 4 credibility, and those errors were not harmless. 5 i. (J. Stip. at 5-12, 20-21.) She is Objective Findings 6 Contradiction with evidence in the medical record is a 7 “sufficient basis” for rejecting a claimant’s subjective symptom 8 testimony. 9 1161 (9th Cir. 2008); see Morgan v. Comm’r of Soc. Sec. Admin., Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 10 169 F.3d 595, 600 (9th Cir. 1999) (upholding “conflict between 11 [plaintiff’s] testimony of subjective complaints and the 12 objective medical evidence in the record” as “specific and 13 substantial” reason undermining credibility). 14 medical evidence “cannot form the sole basis for discounting pain 15 testimony, it is a factor that the ALJ can consider in [her] 16 credibility analysis.” 17 Cir. 2005); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 18 2001) (citing § 404.1529(c)(2)). Although a lack of Burch v. Barnhart, 400 F.3d 676, 681 (9th 19 The ALJ found that the “objective findings . . . fail[ed] to 20 provide strong support for [Plaintiff’s] allegations of disabling 21 symptoms and limitations.” 22 Plaintiff had a “history of chronic pain complaints stemming from 23 a diagnosis of fibromyalgia,” among other impairments, but found 24 that the “objective signs and findings on physical examinations 25 ha[d] not been particularly adverse[,] showing minimal if any 26 neurological deficits.” 27 “normal” and “unremarkable” physical examinations and imaging to 28 support that reason. (AR 21.) (Id.) She recognized that She cited an abundance of (See AR 21-25.) 32 But no laboratory tests or 1 objective findings confirm the presence or severity of 2 fibromyalgia. 3 Cir. 2004). 4 symptoms that a lay person may ordinarily associate with joint 5 and muscle pain.” 6 Cir. 2017) (citing Rollins, 261 F.3d at 863 (Ferguson, J., 7 dissenting)). 8 sensory functions, and reflexes that are normal”; “[t]heir joints 9 appear normal, and further musculoskeletal examination indicates See Benecke v. Barnhart, 379 F.3d 587, 590 (9th Indeed, fibromyalgia manifests with an “absence of Revels v. Berryhill, 874 F.3d 648, 656 (9th Fibromyalgia patients have “muscle strength, 10 no objective joint swelling.” 11 cases, “[t]he condition is diagnosed ‘entirely on the basis of 12 the patients’ reports of pain and other symptoms.’” 13 Benecke, 379 F.3d at 590). 14 Id. (alteration omitted). In such Id. (quoting Plaintiff’s medical records demonstrate extensive complaints 15 of generalized muscle pain (see, e.g., AR 512-14 (Oct. 2009: 16 “pain in both her upper and lower body”), 506 (July 2010: “aching 17 pain” in “lower back”), 496 (May 2011: “achy sensation all 18 over”), 390 (June 2012: “pain all over”), 366 (Oct. 2012: 19 “generalized soft tissue pain”), 625 (Jan. 2013: “generalized” 20 “pain all over body”), 821 (May 2014: “persistent” “joint pain” 21 in “multiple sites”)), fatigue (see, e.g., AR 508 (Nov. 2009: 22 noting “fatigue” “over several years”), 398 (Mar. 2012: 23 “[p]ositive” for fatigue), 366 (Oct. 2012: complaining of 24 “fatigue”)), sleep problems (see, e.g., AR 525 (Feb. 2007: 25 “cannot sleep at nighttime due to the pain”)),33 depression (see, 26 27 28 33 Though many of Plaintiff’s fatigue- and sleep-related complaints stemmed from obstructive sleep apnea (see, e.g., AR 414 (complaining of “generalized fatigue and myalgia, relating the symptoms to difficulties with sleep, due to sleep apnea”)), 33 1 e.g., AR 514 (Oct. 2009: “on Prozac” for “depression”), 821 (May 2 2014: “active depression” and “stress/anxiety”)), and poor 3 concentration (see, e.g., AR 361 (Mar. 2012: “[m]oderate[ly]” 4 poor concentration), 358 (Apr. 2012: “[s]evere[ly]” poor 5 concentration), 356 (May 2012: “[m]oderate[ly]” poor 6 concentration)), all of which are indicative of fibromyalgia. 7 See SSR 12-2p, 2012 WL 3104869, at *3 (July 25, 2012) (describing 8 fibromyalgia “symptoms, signs, or co-occurring conditions” as 9 including “manifestations of fatigue, cognitive or memory 10 problems (‘fibro fog’), waking unrefreshed, depression, anxiety 11 disorder, or irritable bowel syndrome”); Revels, 874 F.3d at 657 12 (same); Benecke, 379 F.3d at 589-90 (explaining that common 13 symptoms of fibromyalgia “include chronic pain throughout the 14 body, multiple tender points, fatigue, stiffness, and a pattern 15 of sleep disturbance that can exacerbate the cycle of pain and 16 fatigue associated with this disease”). 17 Moreover, at least four times she was recorded as having 18 more than 11 of 18 tender points. 19 “Patient has greater than 11 positive trigger points”), 508 (Nov. 20 2009: “12/18” “tender points [at] upper and lower back, chest 21 wall, base of the neck, [and] knees”), 415 (Nov. 2011: “[m]ild 22 diffuse soft tissue tenderness including 12/18 defined tender 23 points”), 624 (Feb. 2013: “18/18 tender points”); cf. AR 505 (See AR 512 (Oct. 2009: 24 25 26 27 28 that condition itself likely was connected to her fibromyalgia. See Sleep Apnea in Patients with Fibromyalgia, Practical Pain Mgmt., https://www.practicalpainmanagement.com/pain/ myofascial/fibromyalgia/sleep-apnea-patients-fibromyalgiagrowing-concern (last updated Sept. 20, 2011) (“Patients with fibromyalgia have a tenfold increase in sleep-disordered breathing, including obstructive sleep apnea.”). 34 1 (Oct. 2010: “6/18” “tender points in the upper and lower back and 2 chest wall”).) 3 constitute ‘objective medical evidence’ of fibromyalgia.” 4 Revels, 874 F.3d at 663 (quoting SSR 12-2p, 2012 WL 3104869, at 5 *2-3) (noting that plaintiff’s showing of 11 or more tender 6 points at “five out of eight appointments” met “cutoff for a 7 diagnosis of fibromyalgia under SSR 12-2P’s first set of 8 criteria”). 9 “[T]ender-point examinations themselves Defendant argues that “Plaintiff presents no doctor[’]s 10 opinion that suggests [she] has restrictions anywhere close to 11 her allegations,” citing the less-restrictive opinions of Drs. 12 Bernabe, Subin, and Rose. 13 reviewed “no medical records” in making his orthopedic assessment 14 of Plaintiff’s disability. 15 the 9th Circuit has recognized, that an “analysis of [a 16 fibromyalgia patient’s] RFC should consider ‘a longitudinal 17 record whenever possible’” because “the symptoms of fibromyalgia 18 ‘wax and wane.’” 19 2012 WL 3104869, at *6). 20 consultants, Drs. Subin and Rose, suffer from the same 21 “fundamental misunderstanding of fibromyalgia” as the ALJ’s 22 decision. 23 “[p]artially [c]redible” because her “allegations of severity 24 [were] not fully supported by objective findings” (AR 88 (Dr. 25 Subin), 102 (Dr. Rose)), and in so doing failed to “construe[] 26 [the medical evidence] in light of fibromyalgia’s unique symptoms 27 and diagnostic methods.” 28 (J. Stip. at 18.) (AR 565.) But Dr. Bernabe SSR 12-2p provides, and Revels, 874 F.3d at 657 (quoting SSR 12-2p, The opinions of the state-agency See id. at 662. Both doctors found Plaintiff Revels, 874 F.3d at 662. Thus, the lack of abnormal objective findings on examination 35 1 was not a sufficient basis to discount Plaintiff’s subjective 2 symptom statements. 3 F. App’x 613, 614 (9th Cir. 2016); Payan v. Colvin, 672 F. App’x 4 732, 732 (9th Cir. 2016). 5 6 ii. Id. at 666; Hamilton-Carneal v. Colvin, 670 Conservative Treatment The ALJ found that Plaintiff’s “overall treatment ha[d] been 7 essentially conservative in nature and [was] not comm[ensurate] 8 with the alleged severity of her overall conditions.” 9 Conservative treatment is a legitimate reason for an ALJ to (AR 21.) 10 discredit a claimant’s testimony regarding the severity of an 11 impairment. 12 the aggressiveness of a treatment regimen must take into account 13 the condition being treated,” Revels, 874 F.3d at 667, and a 14 claimant “cannot be discredited for failing to pursue non- 15 conservative treatment options where none exist,” Lapeirre-Gutt 16 v. Astrue, 382 F. App’x 662, 664 (9th Cir. 2010). 17 is treated with medications and self-care,” McNeal v. Berryhill, 18 No. EDCV 17-0993 SS, 2018 WL 2078810, at *7 (C.D. Cal. May 2, 19 2018), rather than “surgery or other more radical options,” 20 Sharpe v. Colvin, No. CV 13-01557 SS, 2013 WL 6483069, at *8 21 (C.D. Cal. Dec. 10, 2013). 22 Parra, 481 F.3d at 751. But “[a]ny evaluation of “Fibromyalgia Plaintiff was prescribed myriad medications for her 23 impairments, including amitriptyline, Prozac, Zantac, temazepam, 24 Lyrica, Neurontin, Cymbalta, Tagamet, Vicodin, Robaxin, Celexa, 25 Naprosyn, nortriptyline, Topamax, Zoloft, tramadol, Butrans 26 patches, meloxicam, and Flexeril, to treat her pain, depression, 27 anxiety, insomnia, and other symptoms related to fibromylagia. 28 (See AR 348-49, 351, 367, 391, 415, 502-03, 507-10, 512, 514-16, 36 1 518-19, 521-22, 524-25, 532, 535, 685, 822.) Her doctors had 2 increased her Lyrica prescription to a more aggressive dosage, 3 but they had to decrease it again after she experienced liver 4 problems. 5 Lyrica as her pain keep[s] on worsening”), 508-09 (Nov. 2009: 6 Lyrica dose of 700 mg decreased “gradually” to 450 mg because 7 liver enzymes “elevated”), 57-58 (Aug. 2015: Plaintiff testifying 8 that her doctors increased her Lyrica prescription but it caused 9 “a problem with [her] liver”).) (See AR 516 (May 2008: “we need to keep upping her Her doctors regularly 10 supplemented Lyrica with narcotics, such as Vicodin, tramadol, 11 and Butrans patches, to further manage her pain. 12 she tried to “minimiz[e]” her use of narcotics because they were 13 “sleep-inducing” or “too strong” (see AR 390, 421, 497), her 14 longitudinal use of them was fairly regular (see AR 58, 353, 366- 15 67, 390-91, 399, 407, 494, 496, 502-03, 506, 508, 510, 512, 514, 16 516-18, 560, 566, 625, 643). 17 *6 (Commissioner should “consider a longitudinal record whenever 18 possible because the symptoms of [fibromyalgia] can wax and 19 wane”). 20 (AR 431.) 21 with injections likely does not constitute “conservative” 22 treatment. 23 WL 4570811, at *5-6 (C.D. Cal. Oct. 11, 2017) (treatment by 24 “narcotic medication, facet joint injections, and epidural 25 steroid injections” not conservative). 26 provided no explanation why [s]he deemed this treatment 27 ‘conservative’ for fibromyalgia.” 28 Sharpe, 2013 WL 6483069, at *8 (fibromyalgia treatment not Though at times See SSR 12-2p, 2012 WL 3104869, at She also received a ketorolac injection in August 2011. The use of narcotics to control pain in conjunction See, e.g., Ruiz v. Berryhill, No. CV 16-2580-SP, 2017 37 Moreover, “[t]he ALJ Revels, 874 F.3d at 667; see 1 conservative when plaintiff was “consistently and heavily 2 medicated” and “referred to fibromyalgia specialists”); Matamoros 3 v. Colvin, No. CV 13-3964-CW, 2014 WL 1682062, at *4 (C.D. Cal. 4 Apr. 28, 2014) (fibromyalgia treatment consisting of “trigger 5 point injections and a variety of medications” not conservative). 6 To the extent her mental impairments can be distinguished 7 from her physical fibromyalgia-related symptoms, the ALJ may have 8 properly discounted those symptoms based on “conservative 9 treatment consisting mainly of medication management through her 10 primary care physician.” 11 regular mental health care treatment,” seeing Dr. Offenstein, a 12 psychologist, or his nurse practitioner only from March to July 13 2012, to treat her grief after her father-in-law passed away. 14 (AR 347-55, 356-58, 361-63); see Matin v. Comm’r of Soc. Sec. 15 Admin., 478 F. App’x 377, 379 (9th Cir. 2012). 16 ALJ, “the record includes no hospitalization or extensive 17 psychotherapy treatment.” 18 depression and anxiety through medications prescribed by her 19 primary-care doctors at Riverside Medical Clinic. 20 health treatment likely was conservative. 21 Chater, 100 F.3d 1462, 1464-65 (9th Cir. 1996) (claimant’s 22 failure to seek any psychiatric treatment for over three years 23 not legitimate basis for discounting medical opinion). 24 (See AR 24.) (AR 24.) Plaintiff did not “pursue As noted by the Rather, she managed her Such mental- But see Nguyen v. But Plaintiff’s overall treatment was likely not 25 conservative, and thus that was not a clear and convincing reason 26 to discount her statements’ credibility. 27 667. 28 38 See Revels, 874 F.3d at 1 iii. Pain Controlled On Lyrica 2 The ALJ found that Plaintiff “reported that her pain was 3 controlled on Lyrica.” 4 25.) 5 medication are not disabling for the purpose of determining 6 eligibility for SSI benefits.” 7 Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). 8 of fibromyalgia ‘wax and wane,’” and “a person may have ‘bad days 9 and good days.’” 10 11 (AR 23 (citing only AR 633); see also AR “Impairments that can be controlled effectively with Warre v. Comm’r of Soc. Sec. But the “symptoms Revels, 874 F.3d at 657 (quoting SSR 12-2p, 2012 WL 3104869, at *6). Though at times Lyrica helped manage Plaintiff’s pain (see, 12 e.g., AR 506 (July 2010: Lyrica “has been helpful”), 505 (Oct. 13 2010: Plaintiff “feel[s] relatively well” on Lyrica), 497 (Apr. 14 2011: pain “relatively controlled on [L]yrica and naproxen”), 414 15 (Nov. 2011: “Lyrica remains effective”), 633 (Feb. 2015: “pain 16 controlled with Lyrica”)), in fact, the medication’s 17 effectiveness fluctuated (see, e.g., AR 508 (Nov. 2009: “[t]rial 18 of multiple medications with inadequate control of pain”), 366 19 (Oct. 2012: “[c]urrent medications[] inadequate in controlling 20 intensity of pain”)), and Plaintiff often turned to narcotics to 21 obtain further relief (see, e.g., AR 496 (May 2011: “Takes 22 Vicodin . . . once a day”), 391 (June 2012: tramadol “for pain”), 23 366-67 (Oct. 2012: using Vicodin “twice or sometimes three times 24 a day,” so discontinued and “Butrans patch” prescribed instead)). 25 Moreover, Plaintiff testified that though Lyrica “work[ed],” it 26 wasn’t “enough to stop the pain.” 27 2011: feeling “achy sensation all over” despite being “slightly 28 better since on Lyrica,” and taking Vicodin “once a day”).) 39 (AR 57; see also AR 496 (May An 1 ALJ “should consider ‘a longitudinal record whenever possible.’” 2 Revels, 874 F.3d at 657 (quoting SSR 12-2p, 2012 WL 3104869, at 3 *6). 4 records; focusing on Lyrica’s effectiveness at only one point in 5 time was error. 6 2014) (reviewing court “may not affirm simply by isolating a 7 specific quantum of supporting evidence” (citations omitted)). The ALJ here was provided with eight years of medical 8 9 Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. iv. Noncompliance With C-PAP Machine The ALJ further found that Plaintiff was “consistently noted 10 throughout the treatment record to have been non-compliant with 11 CPAP usage.” 12 testimony based on a “lack of consistent treatment.” 13 F.3d at 681. 14 where a claimant has a good reason for failing to obtain 15 treatment.” 16 Astrue, 495 F.3d 625, 638 (9th Cir. 2007)). 17 (AR 23.) An ALJ may discount a claimant’s symptom Burch, 400 But “no adverse credibility finding is warranted Lapeirre-Gutt, 382 F. App’x at 664 (citing Orn v. Plaintiff contends that her noncompliance was because of an 18 “inability to afford the machine.” 19 explains that she had “problems with the fit of her mask.” 20 at 9-10.) 21 (AR 457), and in August it was noted that she “could not tolerate 22 [the] standard CPAP mask” (AR 471). 23 ordered for her. 24 she “could not afford to rent the CPAP machine on a monthly 25 basis” and “ha[d] stopped using [the] machine due to [that] cost 26 issue.” 27 “not using her nasal CPAP” and was referred “back to pulmonary.” 28 (AR 514.) (J. Stip. at 10.) She also (Id. Plaintiff was diagnosed with sleep apnea in June 2007 (AR 473.) (AR 518.) A new mask was immediately In November 2007, she stated that Two years later, in October 2009, she was Three weeks later, she was still not “using her nasal 40 1 CPAP” but had “an appointment with pulmonary next week.” 2 512.) 3 noted that her machine had “too much pressure,” and he 4 recommended several adjustments. 5 (AR At that appointment, in November 2009, a pulmonologist (AR 557-58.) In June 2012, she still “ha[d] not used CPAP due to 6 frustration with the fit” and “ha[d] not seen pulmonology to 7 discuss fitting or titration for several years.” 8 August 2012, she was reevaluated for sleep apnea (AR 382) and 9 another mask was ordered (AR 461-62). (AR 391.) In In October 2012, however, 10 she still “struggle[d] with each mask” (AR 376), and a “new 11 order” was placed (AR 463-65). 12 the CPAP mask “inconsistent[ly]” (AR 624) and hadn’t gotten it 13 “adjusted” by June 2013 (AR 617). 14 March 2014 to calibrate her mask (AR 656-57), and in May 2014 she 15 was “instructed to use [her] C-PAP machine on a regular basis” 16 (AR 822, 825, 827). 17 “continue” her CPAP usage (AR 638), implying that she had been 18 using it. 19 844-46); her mask was “[a]djusted” in July (AR 840), and follow- 20 up “goals” included “ensur[ing] CPAP treatment compliance” (AR 21 841). 22 and got [her CPAP mask] straighted up” and that it helped her 23 “sleep a little longer through the night.” 24 In February 2013, she was using She underwent a sleep study in In September 2014, she was advised to She completed another sleep study in June 2015 (AR Plaintiff testified in August 2015 that she had “just went (AR 49.) Failure to seek treatment because of a “lack of funds” is a 25 valid reason for limited treatment. 26 (holding that benefits cannot be denied when plaintiff’s failure 27 to obtain treatment arises from lack of medical insurance (citing 28 Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995))); see Smolen, 41 Orn, 495 F.3d at 638 1 80 F.3d at 1284 (Plaintiff “had not sought treatment” because 2 “she had no insurance and could not afford treatment”). 3 described above, Plaintiff seemingly stopped using the CPAP 4 machine in late 2007 because she could not afford it. 5 that 2007 treatment note is the only record of cost issues in 6 relation to her CPAP machine, money problems appear elsewhere in 7 the record, including times when she held off on or canceled 8 other treatment for financial reasons. 9 As Although In May 2008, she reported “financial stress [because] her 10 husband [was] working less hours.” 11 her doctor recorded that they would “hold off on egd/colonoscopy 12 for now given [Plaintiff’s] financial situation.” 13 an appointment in November 2011, she asked that certain 14 “paperwork [be] filled out to help with the cost of [her] 15 med[ication].” 16 Dr. Offenstein that she had “constant” “financial worry” (AR 17 361), told his nurse practitioner that she was “unstable 18 financially” (AR 353), and canceled an appointment because she 19 had “no money” for it (AR 359). 20 being worried about making her “house payment” and paying 21 “bills.” 22 financial difficulties only in summarizing her mental-health 23 treatment (AR 24 (describing “constant financial worry” Plaintiff 24 reported to her psychologist)) but not in the context of her 25 ability to afford her CPAP machine (see AR 23-24). 26 (AR 414.) (AR 357.) (AR 516.) In December 2009, (AR 533.) At In March 2012, Plaintiff reported to And in May 2012, she reported The ALJ recognized Plaintiff’s apparent It is unclear whether Plaintiff’s inability to afford the 27 CPAP machine or her frustration with the myriad adjustments 28 accounts for the extended periods when she didn’t follow through 42 1 on obtaining appropriately fitted masks. Likely it was a 2 combination of the two. 3 explained her noncompliance, the ALJ was wrong to discount the 4 credibility of her symptom statements on that basis. 5 Lapeirre-Gutt, 382 F. App’x at 664; Orn, 495 F.3d at 638; Smolen, 6 80 F.3d at 1284. 7 receive other care during the relevant period suggests that 8 perhaps she could afford the machine at least at times, see 9 Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1464 (9th To the extent her financial instability See Although Plaintiff’s ability to seek and 10 Cir. 1995) (affirming ALJ’s discounting of plaintiff’s “claim 11 that lack of money prevented her from seeking help for ongoing 12 problems” “because she sought appropriate medical care . . . for 13 other medical symptoms . . . during the intervening years”), the 14 ALJ failed to recognize that financial problems may have impacted 15 Plaintiff’s “non-complian[ce]” (see AR 23-24). 16 noncompliance likely was not a sufficient reason to discount 17 Plaintiff’s symptom statements.34 18 v. 19 Thus, the Daily Activities The ALJ further discounted Plaintiff’s pain and symptom 20 testimony because her daily activities were “indicative of 21 greater functional capabilities.” 22 “testified to watering in front of her house, washing dishes, 23 swimming a couple of times at the local pool, and shopping.” (AR 25.) He noted that she 24 25 26 27 28 34 The ALJ also did not explain how noncompliance with her CPAP machine, used only for treating sleep apnea, demonstrated that her subjective fibromyalgia-related pain testimony was not credible. See Cagle v. Colvin, No. 1:15-cv-00852-SKO, 2016 WL 3912950, at *9 (E.D. Cal. July 20, 2016) (finding that plaintiff’s “failure to use his CPAP mask” was not “proper basis” for rejecting pain testimony “without further explanation”). 43 1 (Id.) He also found that she “reportedly cared for her father in 2 law prior to his passing” and had “recently” been exercising and 3 “reportedly walking three miles per day.” 4 properly discount the credibility of a plaintiff’s subjective 5 symptom statements when they are inconsistent with her daily 6 activities. 7 [daily] activities suggest some difficulty functioning, they may 8 be grounds for discrediting the claimant’s testimony to the 9 extent that they contradict claims of a totally debilitating (Id.) See Molina, 674 F.3d at 1113. An ALJ may “Even where those 10 impairment.” 11 carried on certain daily activities does not in any way detract 12 from her credibility as to her overall disability.” 13 F.3d at 667 (alteration omitted) (citing Benecke, 379 F.3d at 14 594). 15 will often be consistent with doing more than merely resting in 16 bed all day.” 17 2018 WL 2022575, at *3 (9th Cir. May 1, 2018) (citing Garrison v. 18 Colvin, 759 F.3d 995, 1016 (9th Cir. 2014)). Id. But the “mere fact that a plaintiff has Revels, 874 Impairments that would “unquestionably preclude work . . . Kelly v. Berryhill, __ F. App’x __, No. 16-17173, 19 Plaintiff’s ability to “water out in front of [her] house” 20 using a “lightweight” hose (AR 42), wash dishes “if [she’s] not 21 dropping them (AR 43), swim “a couple times” in her local pool 22 (id.), and “go to the grocery store” while “hold[ing] on to the 23 shop[ping] cart” (AR 48) was not inconsistent with her claims 24 that it “hurt[] to stand or move around” (AR 293, 298), she 25 couldn’t “stand for more than 15 minutes” (AR 267), her “hands 26 cramp[ed]” (AR 267, 269), and she had difficulty lifting, 27 squatting, bending, standing, reaching, walking, sitting, 28 kneeling, stair-climbing, seeing, remembering, completing tasks, 44 1 concentrating, understanding, following instructions, and using 2 her hands (AR 272, 298). 3 (plaintiff’s daily activities of “using the bathroom, brushing 4 her teeth, washing her face, taking her children to school, 5 washing dishes, doing laundry, sweeping, mopping, vacuuming, 6 going to a doctor’s appointment for her or for one of her 7 children, visiting her mother and father, cooking, shopping, 8 getting gas, and feeding her dogs” didn’t “detract from her 9 credibility” when she could “complete only some of the tasks in a See Revels, 874 F.3d at 667-68 10 single day and regularly needed to take breaks”); Popa v. 11 Berryhill, 872 F.3d 901, 907 (9th Cir. 2017) (as amended) 12 (“attending church and shopping for groceries” not inconsistent 13 with plaintiff’s moderate limitations); Blau v. Astrue, 263 F. 14 App’x 635, 637 (9th Cir. 2008) (“[d]aily household chores and 15 grocery shopping” not “easily transferable to a work 16 environment”). 17 The ALJ also noted that Plaintiff “reportedly cared for her 18 father in law prior to his passing.” 19 “finding, standing alone, [was] not a sufficient basis to 20 question [her] testimony regarding the extent of her pain” 21 because the record does not “indicate that she performed [that] 22 work on any kind of regular or sustained basis.” 23 Gutt, 382 F. App’x at 664-65. 24 (AR 25.) But that See Lapeirre- The ALJ further found that in late 2014, Plaintiff was 25 walking “three miles per day” (AR 25 (citing AR 635)), which 26 directly contradicted her allegations that she was “unable to 27 walk any distance” (AR 272) and couldn’t “stand for but a few 28 minutes” (AR 298). Though walking that distance apparently 45 1 caused “foot pain” and “shin splints” (AR 635 (Dec. 2014), 676 2 (Jan. 2015)), she subsequently sought “orthotics for walking 3 shoes” (AR 676 (Jan. 2015)), which then helped “improv[e] some of 4 [her] painful symptoms” (AR 670 (Apr. 2015)). 5 whether she continued to walk three miles a day after being 6 fitted for orthotics, but the record suggests she was actively 7 “exercising/walking more” at that point (AR 669; see also AR 390 8 (reporting “some pain with extensive workouts” in 2012)). 9 It is unclear Thus, the ALJ’s finding that Plaintiff’s walking “three 10 miles per day” was “indicative of greater functional 11 capabilities” than she testified to may have been a sufficient 12 reason to discount the credibility of her statements. 13 see Molina, 674 F.3d at 1113. 14 warranted because the ALJ’s errors discussed above were not 15 harmless. 16 vi. (AR 25); But as explained below, remand is Work History 17 Finally, the ALJ found that Plaintiff’s work history 18 “reflect[ed] a pattern of marginal[,] intermittent[,] and part- 19 time work, indicating that her impairments may not [have been] 20 the sole reason for her . . . inability to sustain full-time 21 competitive employment.” 22 argues that the ALJ made that “speculation without any inquiry 23 into [her] life circumstances, for instance, if [she] spent 24 [that] time raising a child or taking care of a home.” 25 at 11.) 26 (AR 25 (citing AR 244).) Plaintiff (J. Stip. An ALJ may consider work history when evaluating a 27 claimant’s credibility. 28 fact that a claimant had “spotty” or “sporadic” work history See Thomas, 278 F.3d at 958-59. 46 And the 1 before filing for disability may constitute a clear and 2 convincing reason for discounting the credibility of her 3 subjective statements. 4 App’x 745, 747-48 (9th Cir. 2014). 5 history was “spotty, at best.” 6 testified that “in the last 15 years” she had had “only” “two 7 jobs.” 8 “wasn’t with it that long,” never making “more than a thousand 9 [dollars] in . . . a month.” (AR 38.) Id. at 959; Sherman v. Colvin, 582 F. Indeed, Plaintiff’s work See Thomas, 278 F.3d at 959. She She sold cooking products with her niece but (AR 38-39.) For a period of time, 10 she also worked in a portrait studio “full-time” and “sometimes a 11 little more on holidays” but stopped working in June 2006 because 12 her employer wouldn’t “give [her] time off” to be with her 13 grandkids after they were seriously injured. 14 Her earnings summary shows that before 1994, she made less than 15 $3000 a year; between 1994 and 2001, she had no earnings at all; 16 and between 2002 and her alleged onset date in 2006, her income 17 varied remarkably. 18 claimed that between January 2002 and June 2006, she worked the 19 portrait-studio job eight hours a day for five days a week, 20 making $9.50 an hour. 21 show earnings of around $19,000 each of those years. 22 made over $15,000 during only two of those years, suggesting that 23 she was not in fact working full-time for a substantial portion 24 of that time. 25 (See AR 244.) (AR 252.) (AR 39-41, 252.) In her disability report, she If that were true, she should But she (See AR 244.) Moreover, Plaintiff apparently left that job not because she 26 had a “lack of interest in working” (AR 25) but rather because 27 her “grandkids got burned in a fire” and she thought it was 28 “important” to “be with [them]” (AR 40-41). 47 She also seemed to 1 have difficulty reading, writing, and doing math (AR 39, 54-55, 2 261, 263, 267, 270, 272, 287, 289, 296, 298), which could explain 3 her “sporadic work history” (see AR 25). 4 one of her doctors in 2012 that she wanted a job but that “nobody 5 would hire her” because she couldn’t “read, write, [or] spell.” 6 (AR 358.) 7 interest in working[] unrelated to any medical condition[] may 8 account for her current lack of employment” may have been a 9 reasonable inference (see AR 25); Thomas, 278 F.3d at 959, there 10 were apparently other reasons for her intermittent work history. 11 Indeed, Plaintiff told Thus, although the ALJ’s observation that a “lack of Nonetheless, though two of the ALJ’s reasons for discounting 12 Plaintiff’s subjective symptom testimony — her daily activities 13 and “sporadic” work history (AR 25) — may have been valid, the 14 Court cannot conclude that her errors in discounting those 15 statements’ credibility because of a lack of objective findings, 16 her supposedly conservative treatment, Lyrica’s alleged 17 effectiveness, and her CPAP noncompliance were harmless. 18 Hamilton-Carneal, 670 F. App’x at 614 (holding that error in 19 ALJ’s discounting of claimant’s fibromyalgia-related “subjective 20 complaints” was not harmless despite her providing other 21 legitimate reasons because “the ALJ’s decision indicate[d] that 22 the absence of ‘objective medical evidence’ was a central factor 23 in her determination”). See Thus, remand is warranted. 24 B. 25 When an ALJ errs, as here, the Court “ordinarily must remand Remand for Further Proceedings Is Appropriate 26 for further proceedings.” Leon v. Berryhill, 880 F.3d 1041, 1045 27 (9th Cir. 2017) (as amended Jan. 25, 2018); see also Harman v. 28 Apfel, 211 F.3d 1172, 1175-78 (9th Cir. 2000) (as amended); 48 1 Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003). The 2 Court has discretion to do so or to make a direct award of 3 benefits under the “credit-as-true” rule. 4 1045. 5 prophylactic exception to the ordinary remand rule[.]” 6 “decision of whether to remand for further proceedings turns upon 7 the likely utility of such proceedings,” Harman, 211 F.3d at 8 1179, and “[w]here . . . an ALJ makes a legal error, but the 9 record is uncertain and ambiguous, the proper approach is to Leon, 880 F.3d at “[A] direct award of benefits was intended as a rare and Id. The 10 remand the case to the agency,” Leon, 880 F.3d at 1045 (second 11 alteration in original) (citing Treichler, 775 F.3d at 1105); see 12 also Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014). 13 Here, further administrative proceedings would serve the 14 useful purpose of allowing the ALJ to “evaluate the record in 15 light of the unique characteristics of fibromyalgia,” see Revels, 16 874 F.3d at 667 n.6, and to resolve some of the inconsistencies 17 in the record, including Plaintiff’s work history, daily 18 activities, and CPAP noncompliance, see Garrison, 759 F.3d at 19 1021 (recognizing flexibility to remand for further proceedings 20 when “record as a whole creates serious doubt as to whether the 21 claimant is, in fact, disabled”). 22 Plaintiff’s subjective symptoms, she can then provide an adequate 23 discussion of the evidence justifying her doing so. 24 672 F. App’x at 733. 25 is appropriate. If the ALJ again discounts See Payan, Therefore, remand for further proceedings See Garrison, 759 F.3d at 1020 n.26. 26 27 28 49 1 2 VI. CONCLUSION Consistent with the foregoing and under sentence four of 42 3 U.S.C. § 405(g),35 IT IS ORDERED that judgment be entered 4 REVERSING the Commissioner’s decision, GRANTING Plaintiff’s 5 request for remand, and REMANDING this action for further 6 proceedings consistent with this memorandum decision. 7 8 DATED: July 25, 2018 9 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 35 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 50

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.