(SS) Lujan v. Commissioner of Social Security, No. 2:2017cv00197 - Document 26 (E.D. Cal. 2018)

Court Description: ORDER granting 20 plaintiff's Motion for Summary Judgment, denying 21 defendant's Cross-Motion for Summary Judgment. CASE CLOSED. Signed by Magistrate Judge Edmund F. Brennan on 3/31/18. (Hinkle, T)
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(SS) Lujan v. Commissioner of Social Security Doc. 26 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEPHANIE S. LUJAN, 12 Plaintiff, 13 14 15 No. 2:17-cv-197-EFB v. ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant. 16 17 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 18 19 (“Commissioner”) denying her application for Supplemental Security Income (“SSI”) under Title 20 XVI of the Social Security Act. The parties’ cross-motions for summary judgment are pending. 21 For the reasons discussed below, plaintiff’s motion is granted, the Commissioner’s motion is 22 denied, and the matter is remanded for further proceedings.1 23 I. Background 24 Plaintiff filed an application for SSI, alleging that she had been disabled since October 1, 25 2011. Administrative Record (“AR”) at 203-21. Plaintiff’s application was denied initially and 26 27 28 1 Plaintiff filed a request for the court to hold a hearing on the cross-motions for summary judgment. ECF No. 23. The court finds that oral argument would not be of material assistance to resolution of the pending motions, and therefore plaintiff's request for a hearing is denied. 1 Dockets.Justia.com 1 upon reconsideration. Id. at 124-29, 133-39. On November 18, 2014, a hearing was held before 2 Administrative Law Judge (“ALJ”) Mary Gallagher Dilley. Id. at 50-92. Plaintiff appeared, was 3 represented by counsel and plaintiff and a vocational expert (“VE”) testified. Id. On June 19, 4 2015, the ALJ issued a decision finding that plaintiff was not disabled under section 5 1614(a)(3)(A) of the Act.2 Id. at 12-25. The ALJ made the following specific findings: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1. The claimant has not engaged in substantial gainful activity since September 25, 2012, the application date (20 CFR 416.971 et seq.). *** 2. The claimant has the following severe impairments: chronic pain syndrome on narcotic therapy; depression; and anxiety disorder (20 CFR 416.920(c)). 2 Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. §§ 401 et seq. Supplemental Security Income (“SSI”) is paid to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both provisions, disability is defined, in part, as an “inability to engage in any substantial gainful activity” due to “a medically determinable physical or mental impairment.” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R. §§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The following summarizes the sequential evaluation: Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a “severe” impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 26 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 27 The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id. 2 28 1 2 3 *** 3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.416.920(d), 416.925 and 416.926). 4 *** 5 6 7 8 4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b), i.e., lift/carry twenty pounds occasionally and ten pounds frequently, stand/walk for six out of eight hours, and sit for six out of eight hours, except the claimant should avoid concentrated exposure to hazards and not climb ladders, ropes, or scaffolds. She is able to perform work that is simple and routine with no public contact. 9 10 11 12 13 *** 5. The claimant is unable to perform any past relevant work (20 CFR 416.965). *** 6. The claimant was born [in] 1981 and was 30 years old, which is defined as a younger individual age 18-49, on the date the application was filed (20 CFR 416.963). 14 15 16 17 18 19 20 7. The claimant has at least a high school education and is able to communicate in English (20 CFR 416.964). 8. Transferability of job skills is not material to the determination of disability because using the Medical-Vocation Rules as a framework supports a finding that the claimant is “not disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2). 9. Considering the claimant’s age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969(a)). 21 *** 22 23 10. The claimant has not been under a disability, as defined by the Social Security Act, since September 25, 2012, the date the application was filed (20 CFR 416.920(g)). 24 25 26 27 Id. at 14-25. Plaintiff’s request for Appeals Council review was denied on December 1, 2016, leaving the ALJ’s decision as the final decision of the Commissioner. Id. at 1-6. 28 3 1 II. 2 Legal Standards The Commissioner’s decision that a claimant is not disabled will be upheld if the findings 3 of fact are supported by substantial evidence in the record and the proper legal standards were 4 applied. Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); 5 Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel, 6 180 F.3d 1094, 1097 (9th Cir. 1999). 7 The findings of the Commissioner as to any fact, if supported by substantial evidence, are 8 conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is 9 more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th 10 Cir. 1996). “‘It means such evidence as a reasonable mind might accept as adequate to support a 11 conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. 12 N.L.R.B., 305 U.S. 197, 229 (1938)). 13 “The ALJ is responsible for determining credibility, resolving conflicts in medical 14 testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 15 2001) (citations omitted). “Where the evidence is susceptible to more than one rational 16 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” 17 Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 18 III. 19 Analysis Plaintiff argues that the ALJ erred (1) by failing to find that Lyme disease was a severe 20 impairment, (2) weighing the medical opinion evidence, (3) by finding plaintiff’s statements 21 regarding the severity of her symptoms not credible, (4) and rejecting lay testimony absent 22 sufficient reasons. ECF No. 20-1 at 39-61. As explained below, the court finds that the ALJ 23 erred in finding that plaintiff’s Lyme disease was not a severe impairment. The error was not 24 harmless, requiring the matter be remanded for further proceedings.3 25 ///// 26 ///// 27 28 3 As the matter must be remanded on this basis, the court declines to address plaintiff’s additional arguments. 4 1 A. 2 “The step-two inquiry is a de minimis screening device to dispose of groundless claims.” Relevant Legal Standards 3 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). The purpose is to identify claimants 4 whose medical impairment is so slight that it is unlikely they would be disabled even if age, 5 education, and experience were not taken into account. Bowen v. Yuckert, 482 U.S. 137 (1987). 6 At step-two the claimant has the burden of providing medical evidence of signs, symptoms, and 7 laboratory findings that show that his or her impairments are severe and are expected to last for a 8 continuous period of twelve months. Ukolov v. Barnhart, 420 F.3d 1002, 1004-05 (9th Cir.2005); 9 see also 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii). A severe impairment is one that 10 “significantly limits” a claimant’s “physical or mental ability to do basic work activities.” 20 11 C.F.R. §§ 404.1520(c), 416.920(c). “An impairment is not severe if it is merely ‘a slight 12 abnormality (or combination of slight abnormalities) that has no more than a minimal effect on 13 the ability to do basic work activities.’” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) 14 (quoting Social Security Ruling (“SSR”) 96-3p). 15 When the ALJ determines that a claimant has at least one severe impairment, he must 16 consider all impairments, including non-severe impairments, at all subsequent steps of the 17 sequential evaluation. Smolen, 80 F.3d at 1290; see also Burch v. Barnhart, 400 F.3d 676, 682- 18 82 (9th Cir. 2005) (ALJ’s failure to find claimant’s obesity severe at step two was harmless error 19 where it was considered in determining claimant’s RFC). 20 B. 21 From January to November 2012, plaintiff received treatment from Dr. Raphael Stricker, a Background 22 hematologist in San Francisco, California. AR 55, 607. Plaintiff reported that she was bit by a 23 tick at age 9, which resulted in a rash, mood swings, and fatigue. Id. at 606. Her symptoms 24 initially improved with medication, but she subsequently experienced burning muscle pain, 25 headaches, stiff neck, blurred vision, tinnitus, cognitive issues, nausea, and shortness of breath. 26 Id. She reported that in 2008, she experienced swelling in her knee, joint pain, and muscle aches. 27 Id. Dr. Stricker’s examined plaintiff in January 2012, which showed pain in plaintiff’s knees, 28 wrists, ankles, and shoulder on range of motion. Id. at 607. Dr. Stricker order significant lab 5 1 work and serologic testing, which included Western blot tests.4 AR 465-88, 499-513. Plaintiff 2 tested positive on the IgM Western blot test, but negative on the IgG Western blot test. Id. at 3 465-66. Serologic testing also reflected that plaintiff was positive for Babesia.5 Id. at 468. Based 4 on his examination of plaintiff and the results of blood tests, Dr. Stricker diagnosed plaintiff with 5 chronic Lyme disease; Babesia positive; chronic fatigue syndrome; and fibromyalgia. Id. at 606- 6 609. Dr. Stricker prescribed long-term antibiotic treatment with Amoxicillin for plaintiff’s Lyme 7 disease.6 8 9 Plaintiff subsequently was seen by Dr. John Bakos. Dr. Bakos treated plaintiff for chronic pain, including back, neck, joint, and “overall body” pain. Id. at 536-52, 561-66. In addition to 10 chronic pain syndrome, Dr. Bakos diagnosed plaintiff with migraines, insomnia, bipolar disorder, 11 panic disorder, and Lyme disease. Id. at 532, 550, 552. 12 After the administrative hearing, the ALJ served interrogatories on Dr. Don Clark, a non- 13 examining physician who reviewed plaintiff’s medical records. AR 623-634. Dr. Clark noted 14 that plaintiff had been diagnosed with chronic Lyme disease, among other things, but stated that 15 he personally could not make the same diagnosis. Id. at 627. He provided the following 16 explanation as to why he was unable to diagnose Lyme disease: 17 [Plaintiff] did report a history of tick bite, and one doctor reports a history ECM, a migratory skin rash associated with Lyme disease. None of the physical examinations report synovitis of the joints which is characteristic of chronic Lyme disease. A recent study shows that chronic fatigue occurs in only about 3% of chronic Lyme disease patients. Antibiotic treatment does not seem to have changed symptoms. I am unable to make the diagnosis of Lyme disease. The electrocardiogram (2F) is normal and I don’t find any cardiac complications of Lyme disease. Caveat on all Lyme lab work says diagnosis should not be made on lab results alone. 18 19 20 21 22 Id. 23 24 25 26 27 28 4 The Western blot test is a lab test that identifies antibodies to the bacteria to help confirm a diagnosis of Lyme disease. See Mayo Clinic, Lyme Disease Diagnosis & Treatment, https://www.mayoclinic. org/diseases-conditions/lyme-disease/diagnosis-treatment/drc-20374655 5 Babesia are parasites typically spread through tick bites. Center for Disease Control, Parasites-Babesiois, CDC, https://www.cdc.gov/parasites/babesiosis/epi.html. 6 Dr. Stricker also prescribed Biaxin, but plaintiff’s insurance denied coverage. AR 609. 6 1 At step-two the ALJ determined that plaintiff’s severe impairments included chronic pain 2 syndrome on narcotic therapy; depression; and anxiety. AR 14. She noted that plaintiff’s 3 treatment records show a “history of Lyme disease,” but concluded that the impairment, as well 4 as other impairments, “caused only transient and mild symptoms and limitations,” were well 5 controlled, persisted for less than a year, or were otherwise not adequately supported by medical 6 evidence. Id. Specific to plaintiff’s history of Lyme disease, the ALJ stated that “later records do 7 not confirm [Lyme disease,] so [it is] not currently medically determinable from the record.” Id. 8 9 The ALJ further addressed evidence of Lyme disease in her step-four finding in relation to weighing the medical opinion evidence. She determined that the treating opinions of Dr. Bakos 10 and Dr. Stricker deserve less weight than Dr. Clark’s opinion because their opinions are 11 inconsistent with the entire medical record. Id. at 21. The ALJ noted that Dr. Clark is Board 12 Certified in Internal Medicine and is qualified to render a medical opinion on plaintiff’s 13 impairments, including Lyme disease. Id. She also repeated Dr. Clark’s findings that there was 14 no evidence of cardiac complications from Lyme disease or synovitis of the joint, and that lab 15 results alone could not support a diagnosis of Lyme disease. Id. at 20. The ALJ then provided 16 the following discussion regarding Dr. Stricker’s diagnosis: 17 While Dr. Clark found that antibiotics did not seem to change her symptoms, it was noted that she was post Lyme disease, which indicates resolution but it is not clear to what this resolution should be credited. Nonetheless, Dr. Clark was unable to make a diagnosis of Lyme disease for these reasons. This weakens Dr. Stricker’s diagnosis based solely on lab results. Although treatment with antibiotics is consistent with Lyme disease, there are minimal records from Dr. Stricker and they indicate improvement by July 2013 [sic].7 18 19 20 21 22 Id. 23 The ALJ also relied on her finding that Lyme disease was not a medical determinable 24 impairment to discount Dr. Bakos’s treating opinion.8 Id. at 23. Specifically, she found that 25 26 27 28 7 Throughout her decision, the ALJ cites to a July 2014 treatment note to support her contention that plaintiff’s Lyme disease resolved. See AR 19, 20, 23. The court therefore presumes the ALJ intended to state that plaintiff’s Lyme disease improved by “2014,” not “2013.” 8 Dr. Bakos assessed limitations significantly more limiting than those contained in the 7 1 “physical examinations were generally benign and do not support the extreme limitations found 2 by Dr. Bakos . . . . In fact, treatment notes indicated Lyme disease was resolved . . . by July 3 2014.” Id. at 24. 4 C. 5 Plaintiff argues that the ALJ erred in finding that Lyme disease was not a severe 6 impairment. ECF No. 20-1 at 39. First, she argues that the ALJ improperly rejected Dr. 7 Stricker’s diagnosis, which was supported by objective medical evidence establishing Lyme 8 disease as a medical determinable impairment. Id. at 40-41. She further contends that the ALJ 9 erred in adopting Dr. Clark’s opinion that Lyme disease could not be diagnosed. Id. at 41-42. Discussion 10 Lastly, she argues that the ALJ erroneously determined that plaintiff’s Lyme disease had resolved 11 based on a misunderstanding of relevant terminology. Id. at 41. 12 To qualify for disability benefits, a claimant must establish an inability to engage in 13 substantial gainful activity “by reason of any medically determinable physical or mental 14 impairment . . . .” 42 U.S.C. § 423(d)(1)(A). The existence of a medically determinable 15 impairment “must be established by medical evidence consisting of signs, symptoms, and 16 laboratory findings . . . .” Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005) (quoting SSR 17 96-4p). This requires the record to contain “the results of medically acceptable clinical diagnostic 18 techniques.” Id. 19 Here, there is objective medical evidence, derived from medically acceptable diagnostic 20 techniques, establishing plaintiff’s diagnosis of Lyme disease. As noted above, plaintiff tested 21 positive on the IgM Western blot test, a test used to help confirm Lyme disease. That test result 22 constitutes objective medical evidence supporting Dr. Stricker’s diagnosis of Lyme disease. See 23 Moores v. Colvin, 173 F. Supp. 3d 989, 997 (E.D. Cal. 2016) (Brennan, E.) (citing Morgan v. 24 Colvin, 2013 WL 6074119 (D. Or. Nov. 13, 2014) (concluding that positive blood test for Lyme 25 disease provided an objective basis for physician’s opinion that plaintiff was functionally limited 26 due to aches and pains caused by Lyme disease). Moreover, the fact that the test result may not 27 28 ALJ’s RFC determination. Compare AR 16 with AR 532-35. 8 1 definitively establish the diagnosis of Lyme disease (as suggested by Dr. Clark) does not negate 2 Dr. Stricker’s opinion. “[A] positive blood test is not required to diagnose Lyme disease; the 3 existence of signs and symptoms are adequate.” Morgan, 2013 WL 6074119 at *11. Plaintiff 4 was under Dr. Stricker’s care for nearly a year. He personally examined plaintiff, prescribed her 5 long-term antibiotic treatment, and monitored her progress and symptoms. Dr. Stricker was able 6 to personally observe plaintiff’s symptoms, which included pain and fatigue, as well as the results 7 of blood testing. Accordingly, the record shows that Dr. Stricker’s diagnosis was supported by 8 objective evidence through medically acceptable diagnostic techniques. 9 Plaintiff further argues that the ALJ erred in adopting the opinion of Dr. Clark over the 10 opinion provided by Dr. Stricker. ECF No. 20-1 at 41-43. She contends that there are differences 11 of opinion in the medical community as to the proper methods and considerations for diagnosing 12 Lyme disease, and that the ALJ impermissibly selected Dr. Clark’s view on diagnosing Lyme 13 disease over the view of Dr. Stricker. Id. at 42-43. 14 In social security cases, more weight is given to the opinion of a treating physician, who 15 has a greater opportunity to know and observe the patient as an individual. Lester v. Chater, 81 16 F.3d 821, 834 (9th Cir. 1995); Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). If the 17 treating physician’s opinion is contradicted by another doctor, the treating opinion may only be 18 rejected for “specific and legitimate” reasons that are supported by substantial evidence. Lester, 19 81 F.3d at 830. However, “[t]he opinion of a nonexamining physician cannot by itself constitute 20 substantial evidence that justifies the rejection of the opinion of . . . a treating physician.” Id. at 21 831. 22 Because Dr. Stricker was plaintiff’s treating physician, his opinion as to plaintiff’s 23 impairments was entitled to greater weight than the opinion of Dr. Clark. The ALJ, however, 24 failed to accord such weight to Dr. Stricker’s opinion, instead adopting Dr. Clark’s completing 25 opinion to support her finding that plaintiff’s Lyme disease was not a medically determinable 26 impairment. In doing so, the ALJ erred as Dr. Clark’s non-examining opinion does not constitute 27 substantial evidence justifying the rejection of Dr. Stricker’s opinion. Id.; Cf Orn v. Astrue, 495 28 F.3d 625, 632 (9th Cir. 2007) (“When an examining physician relies on the same clinical findings 9 1 as a treating physician, but differs only in his or her conclusions, the conclusions of the 2 examining physician are not ‘substantial evidence.’” 3 In addition to ignoring Dr. Stricker’s status as a treating physician, the ALJ also failed to 4 consider that Dr. Stricker’s training rendered him more qualified to assess plaintiff’s impairment. 5 The ALJ explicitly noted that Dr. Clark was a board certified internist and qualified to render an 6 opinion, but failed to acknowledge that Dr. Stricker is a hematologist. Aside from his status as a 7 treating physician, Dr. Stricker’s specialty entitles his opinion to greater weight. Smolen, 80 F.3d 8 at 1285 (“[T]he opinions of a specialist about medical issues related to his or her specialization 9 are given more weight than the opinion of a non specialist.”).9 10 Lastly, plaintiff argues that the ALJ’s conclusion that her Lyme disease did not cause 11 functional limitations is based on an erroneous finding that her Lyme disease had resolved by July 12 2014. ECF No. 20-1 at 43-44. Plaintiff claims that the ALJ’s finding that her Lyme disease had 13 resolved is due to misinterpretation of a treatment note’s reference to “post Lyme disease.” Id. 14 Plaintiff contends that statement “post Lyme disease” does not establish that her symptoms have 15 resolve. Rather, she contends that it is shorthand for “post Lyme disease syndrome,” which is 16 used to refer to patients that continue to experience symptoms after completing treatment for 17 Lyme disease. 18 In her decision, the ALJ found that by July 2014, plaintiff was considered “post lyme 19 disease.” AR 19. The treatment note referenced by the ALJ provides that plaintiff’s medical 20 conditions include chronic pain, anxiety, “post Lyme disease,” and 7 months pregnant. AR 561. 21 The ALJ interpreted the statement to mean that plaintiff either no longer had Lyme disease or no 22 longer had any symptoms. See id. at 20 (evidence of record “suggesting resolved Lyme disease” 23 (“it was noted that she was post Lyme disease, which indicates resolution . . . .”), 21 (“treatment 24 notes are limited and indicated the claimant’s Lyme disease resolved). 25 26 27 28 9 Not only is Dr. Stricker a hematologist, but he is a Lyme disease expert. See also Morgan, 2013 WL 6074119 at *10 (“[P]laintiff sought treatment with Dr. Stricker, a Lyme disease specialist.”); Fallstead v. Astrue, 2013 WL 5426223, *1 (N.D. Cal. Sept. 27, 2013) (“Rafael B. Stricker, M.D., [is] a Lyme disease expert.”). Although his expertise in Lyme disease is not apparent from the record, and therefore the ALJ may have been unaware of this fact, the record does establish that he practices hematology. AR 55. 10 1 Although the ALJ’s interpretation of phrase “post Lyme disease” superficially appears 2 reasonable, other evidence contradicts the ALJ’s reading of the treatment note. According to the 3 Center for Disease Control, physicians describe patients who have non-specific symptoms— 4 including fatigue, pain, and joint and muscle aches—after treatment as having “post treatment 5 Lyme disease syndrome” or “post Lyme disease syndrome.”10 With that knowledge in mind, the 6 appropriate interpretation of the July 2014 treatment note is that plaintiff was diagnosed with post 7 Lyme disease syndrome. This is especially true considering plaintiff’s symptoms, which included 8 fatigue, muscle weakness, and muscle and joint pain. See AR 541-42 (severe fatigue, no energy, 9 joint pain); 545-47 (back, neck, and joint pain); 549-50 (fatigue, muscle weakness, and back, 10 11 neck, and joint pain). Such symptoms are consistent with post Lyme disease syndrome. More significantly, the ALJ’s interpretation is not plausible in light of other medical 12 records. The July 2014 treatment record noting “post lyme disease” is from Dr. Bakos. Id. at 13 561. The following month, Dr. Bakos completed a Medical Source Statement, which reflects a 14 diagnosis of Lyme disease as well as significant limitations resulting from the disease. Id. at 532- 15 35. It cannot reasonably be concluded that Dr. Bakos found that plaintiff’s Lyme disease was 16 resolved in July, but resulted in debilitating impairments the following month. 17 Accordingly, the ALJ’s finding that plaintiff’s Lyme disease was resolved, and thus not a 18 severe impairment, is not supported by substantial evidence. Moreover, the ALJ’s error is not 19 harmless. In assessing the medical opinion evidence, the ALJ concluded that Dr. Bakos and Dr. 20 Stricker’s opinions deserved less weight than Dr. Clark’s because their opinions are not consistent 21 with the entire medical record. AR 21. But to support that finding, the ALJ consistently noted 22 that plaintiff’s Lyme disease had resolved and medical records reflected “normal to mild sings on 23 physical examination.” Id. at 20. As just discussed, substantial evidence does not support the 24 ALJ finding and plaintiff’s Lyme disease resolved and medical records reflect severe symptoms 25 consistent with Lyme disease. See, e.g., id. at 541-42; 545-47; 549-50; 570; 575; 582.; see also 26 Morgan, 2013 WL 6074119 at *6 n.6 (“Lyme disease can cause long-term symptoms such as loss 27 28 10 Center for Disease Control and Prevention, Post-Treatment Lyme Disease Syndrome, https://www.cdc.gov/lyme/postlds/index.html 11 1 of muscle tone on one or both sides of the face, severe headaches and neck stiffness due to 2 meningitis, shooting pains, heart palpitations and dizziness, pain that moves from joint to joint, 3 numbness and tingling in the hands or feet with concentration or short term memory.”) 4 In assessing plaintiff’s ability to work, the ALJ was required to consider all impairments. 5 Smolen, 80 F.3d at 1290. The ALJ failed to adequately consider the impact of plaintiff’s Lyme 6 disease on plaintiff’s ability to work. Accordingly, remand is appropriate to allow the ALJ to 7 consider impact plaintiff’s Lyme disease has on her ability to work. See Dominguez v. Colvin, 8 808 F.3d 403, 407 (9th Cir. 2015) (“A district court may reverse the decision of the 9 Commissioner of Social Security, with or without remanding the cause for a rehearing, but the 10 proper course, except in rare circumstances, is to remand to the agency for additional 11 investigation or explanation.”) (internal quotes and citations omitted). 12 IV. Conclusion 13 Accordingly, it is hereby ORDERED that: 14 1. Plaintiff’s request for oral argument on the cross-motions for summary judgment is 15 denied; 16 2. Plaintiff’s motion for summary judgment is granted; 17 3. The Commissioner’s cross-motion for summary judgment is denied; 18 4. The matter is remanded for further administrative proceedings consistent with this 19 20 21 order; and 5. The Clerk is directed to enter judgment in plaintiff’s favor and close the case. DATED: March 31, 2018. 22 23 24 25 26 27 28 12