Ward v. Saul, No. 1:2020cv03093 - Document 21 (E.D. Wash. 2021)
Court Description: ORDER GRANTING 18 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING 19 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. File is CLOSED. Signed by Magistrate Judge Mary K. Dimke. (SG, Case Administrator)
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Ward v. Saul Doc. 21 Case 1:20-cv-03093-MKD ECF No. 21 filed 04/02/21 PageID.964 Page 1 of 19 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Apr 02, 2021 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 DANIELLE W.,1 No. 1:20-cv-03093-MKD Plaintiff, 8 vs. 9 ANDREW M. SAUL, 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 18, 19 12 13 Before the Court are the parties’ cross-motions for summary judgment. ECF 14 Nos. 18, 19. The parties consented to proceed before a magistrate judge. ECF No. 15 6. The Court, having reviewed the administrative record and the parties’ briefing, 16 17 18 1 To protect the privacy of plaintiffs in social security cases, the undersigned 19 identifies them by only their first names and the initial of their last names. See 20 LCivR 5.2(c). 2 ORDER - 1 Dockets.Justia.com Case 1:20-cv-03093-MKD ECF No. 21 filed 04/02/21 PageID.965 Page 2 of 19 1 is fully informed. For the reasons discussed below, the Court grants Plaintiff’s 2 motion, ECF No. 18, and denies Defendant’s motion, ECF No. 19. 3 4 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g); 5 1383(c)(3). 6 7 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 8 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 9 limited; the Commissioner’s decision will be disturbed “only if it is not supported 10 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 11 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 12 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 13 (quotation and citation omitted). Stated differently, substantial evidence equates to 14 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 15 citation omitted). In determining whether the standard has been satisfied, a 16 reviewing court must consider the entire record as a whole rather than searching 17 for supporting evidence in isolation. Id. 18 In reviewing a denial of benefits, a district court may not substitute its 19 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 20 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 2 ORDER - 2 Case 1:20-cv-03093-MKD ECF No. 21 filed 04/02/21 PageID.966 Page 3 of 19 1 rational interpretation, [the court] must uphold the ALJ’s findings if they are 2 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 3 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 4 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 5 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 6 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 7 decision generally bears the burden of establishing that it was harmed. Shinseki v. 8 Sanders, 556 U.S. 396, 409-10 (2009). 9 10 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 11 the meaning of the Social Security Act. First, the claimant must be “unable to 12 engage in any substantial gainful activity by reason of any medically determinable 13 physical or mental impairment which can be expected to result in death or which 14 has lasted or can be expected to last for a continuous period of not less than twelve 15 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 16 impairment must be “of such severity that he is not only unable to do his previous 17 work[,] but cannot, considering his age, education, and work experience, engage in 18 any other kind of substantial gainful work which exists in the national economy.” 19 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 20 2 ORDER - 3 Case 1:20-cv-03093-MKD 1 ECF No. 21 filed 04/02/21 PageID.967 Page 4 of 19 The Commissioner has established a five-step sequential analysis to 2 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 3 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner 4 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 5 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 6 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 7 404.1520(b), 416.920(b). 8 If the claimant is not engaged in substantial gainful activity, the analysis 9 proceeds to step two. At this step, the Commissioner considers the severity of the 10 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 11 claimant suffers from “any impairment or combination of impairments which 12 significantly limits [his or her] physical or mental ability to do basic work 13 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 14 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 15 however, the Commissioner must find that the claimant is not disabled. Id. 16 At step three, the Commissioner compares the claimant’s impairment to 17 severe impairments recognized by the Commissioner to be so severe as to preclude 18 a person from engaging in substantial gainful activity. 20 C.F.R. §§ 19 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more 20 2 ORDER - 4 Case 1:20-cv-03093-MKD ECF No. 21 filed 04/02/21 PageID.968 Page 5 of 19 1 severe than one of the enumerated impairments, the Commissioner must find the 2 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 3 If the severity of the claimant’s impairment does not meet or exceed the 4 severity of the enumerated impairments, the Commissioner must pause to assess 5 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 6 defined generally as the claimant’s ability to perform physical and mental work 7 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 8 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the 9 analysis. 10 At step four, the Commissioner considers whether, in view of the claimant’s 11 RFC, the claimant is capable of performing work that he or she has performed in 12 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 13 If the claimant is capable of performing past relevant work, the Commissioner 14 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). 15 If the claimant is incapable of performing such work, the analysis proceeds to step 16 five. 17 At step five, the Commissioner considers whether, in view of the claimant’s 18 RFC, the claimant is capable of performing other work in the national economy. 19 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, 20 the Commissioner must also consider vocational factors such as the claimant’s age, 2 ORDER - 5 Case 1:20-cv-03093-MKD ECF No. 21 filed 04/02/21 PageID.969 Page 6 of 19 1 education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 2 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 3 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 4 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 5 work, analysis concludes with a finding that the claimant is disabled and is 6 therefore entitled to benefits. Id. 7 The claimant bears the burden of proof at steps one through four above. 8 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 9 step five, the burden shifts to the Commissioner to establish that 1) the claimant is 10 capable of performing other work; and 2) such work “exists in significant numbers 11 in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v. 12 Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 13 14 ALJ’S FINDINGS On September 5, 2017, Plaintiff applied both for Title II disability insurance 15 benefits and Title XVI supplemental security income benefits alleging a disability 16 onset date of September 5, 2017. Tr. 15, 71-72, 216-28. The applications were 17 denied initially and on reconsideration. Tr. 141-49, 152-65. Plaintiff appeared 18 before an administrative law judge (ALJ) on March 5, 2019. Tr. 33-70. On May 19 1, 2019, the ALJ denied Plaintiff’s claim. Tr. 12-32. 20 2 ORDER - 6 Case 1:20-cv-03093-MKD 1 ECF No. 21 filed 04/02/21 PageID.970 Page 7 of 19 At step one of the sequential evaluation process, the ALJ found Plaintiff, 2 who met the insured status requirements through December 31, 2019, has not 3 engaged in substantial gainful activity since September 1, 2017. Tr. 17. At step 4 two, the ALJ found that Plaintiff has the following severe impairments: 5 degenerative disc disease, chronic pain, hypermobility syndrome, hiatal hernia, 6 migraines, anxiety, and depression. Tr. 18. 7 At step three, the ALJ found Plaintiff does not have an impairment or 8 combination of impairments that meets or medically equals the severity of a listed 9 impairment. Tr. 18. The ALJ then concluded that Plaintiff has the RFC to perform 10 light work with the following limitations: 11 12 13 14 15 16 17 18 19 20 2 [Plaintiff] can stand, walk, and sit 6 hours each in an 8-hour workday. [Plaintiff] can occasionally balance, stoop, [kneel], crouch, crawl, and climb ramps and stairs, but never climb ladders, ropes, or scaffolds. [Plaintiff] should avoid concentrated exposure to vibration, pulmonary irritants, and hazards. [Plaintiff] can perform simple, routine work, as well as some learned complex tasks, such as those learned in past work. [Plaintiff] can have occasional, superficial contact with coworkers and brief, superficial contact with the public. Tr. 20. At step four, the ALJ found Plaintiff is unable to perform any of her past relevant work. Tr. 25. At step five, the ALJ found that, considering Plaintiff’s age, education, work experience, RFC, and testimony from the vocational expert, there were jobs that existed in significant numbers in the national economy that Plaintiff could perform, such as parking lot cashier, pricer, and production ORDER - 7 Case 1:20-cv-03093-MKD ECF No. 21 filed 04/02/21 PageID.971 Page 8 of 19 1 assembler. Tr. 26. Therefore, the ALJ concluded Plaintiff was not under a 2 disability, as defined in the Social Security Act, from the alleged onset date of 3 September 1, 2017, through the date of the decision. Id. 4 On May 1, 2020, the Appeals Council denied review of the ALJ’s decision, 5 Tr. 1-6, making the ALJ’s decision the Commissioner’s final decision for purposes 6 of judicial review. See 42 U.S.C. § 1383(c)(3). 7 8 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 9 her disability insurance benefits under Title II and supplemental security income 10 benefits under Title XVI of the Social Security Act. Plaintiff raises the following 11 issues for review: 12 1. Whether the ALJ properly evaluated the medical opinion evidence; and 13 2. Whether the ALJ properly evaluated Plaintiff’s symptom claims. 14 ECF No. 18 at 2. 15 16 17 DISCUSSION A. Medical Opinion Evidence Plaintiff contends the ALJ erred in her consideration of the opinions of 18 William Bothamley, M.D., and N.K. Marks, Ph.D. ECF No. 18 at 8-19. 19 As an initial matter, for claims filed on or after March 27, 2017, new 20 regulations apply that change the framework for how an ALJ must evaluate 2 ORDER - 8 Case 1:20-cv-03093-MKD ECF No. 21 filed 04/02/21 PageID.972 Page 9 of 19 1 medical opinion evidence. Revisions to Rules Regarding the Evaluation of 2 Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 2017); 20 3 C.F.R. §§ 404.1520c, 416.920c. The new regulations provide that the ALJ will no 4 longer “give any specific evidentiary weight…to any medical 5 opinion(s)…” Revisions to Rules, 2017 WL 168819, 82 Fed. Reg. 5844, at 58676 68; see 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Instead, an ALJ must consider 7 and evaluate the persuasiveness of all medical opinions or prior administrative 8 medical findings from medical sources. 20 C.F.R. §§ 404.1520c(a) and (b), 9 416.920c(a) and (b). The factors for evaluating the persuasiveness of medical 10 opinions and prior administrative medical findings include supportability, 11 consistency, relationship with the claimant (including length of the treatment, 12 frequency of examinations, purpose of the treatment, extent of the treatment, and 13 the existence of an examination), specialization, and “other factors that tend to 14 support or contradict a medical opinion or prior administrative medical finding” 15 (including, but not limited to, “evidence showing a medical source has familiarity 16 with the other evidence in the claim or an understanding of our disability 17 program’s policies and evidentiary requirements”). 20 C.F.R. §§ 404.1520c(c)(1)18 (5), 416.920c(c)(1)-(5). 19 Supportability and consistency are the most important factors, and therefore 20 the ALJ is required to explain how both factors were considered. 20 C.F.R. §§ 2 ORDER - 9 Case 1:20-cv-03093-MKD ECF No. 21 filed 04/02/21 PageID.973 Page 10 of 19 1 404.1520c(b)(2), 416.920c(b)(2). Supportability and consistency are explained in 2 the regulations: 3 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be. 4 5 6 (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 7 8 9 20 C.F.R. §§ 404.1520c(c)(1)-(2), 416.920c(c)(1)-(2). The ALJ may, but is not 10 required to, explain how the other factors were considered. 20 C.F.R. §§ 2 11 404.1520c(b)(2), 416.920c(b)(2). However, when two or more medical opinions 12 13 2 The parties disagree over whether Ninth Circuit case law continues to be 14 controlling in light of the amended regulations. ECF No. 18 at 8-18; ECF No. 19 at 15 4-12. While Plaintiff cites to case law that was applied under the old regulations, 16 Defendant argues the prior case law is no longer applicable. Id. The Court finds 17 resolution of this question unnecessary to the disposition of this case. “It remains 18 to be seen whether the new regulations will meaningfully change how the Ninth 19 Circuit determines the adequacy of the an ALJ’s reasoning and whether the Ninth 20 Circuit will continue to require that an ALJ provide ‘clear and convincing’ or 2 ORDER - 10 Case 1:20-cv-03093-MKD ECF No. 21 filed 04/02/21 PageID.974 Page 11 of 19 1 or prior administrative findings “about the same issue are both equally well2 supported ... and consistent with the record ... but are not exactly the same,” the 3 ALJ is required to explain how “the other most persuasive factors in paragraphs 4 (c)(3) through (c)(5)” were considered. 20 C.F.R. §§ 404.1520c(b)(3), 5 416.920c(b)(3). 6 7 8 9 ‘specific and legitimate reasons’ in the analysis of medical opinions, or some 10 variation of those standards.” Allen T. v. Saul, No. EDCV 19-1066-KS, 2020 WL 11 3510871, at *3 (C.D. Cal. June 29, 2020) (citing Patricia F. v. Saul, No. C1912 5590-MAT, 2020 WL 1812233, at *3 (W.D. Wash. Apr. 9, 2020)). “Nevertheless, 13 the Court is mindful that it must defer to the new regulations, even where they 14 conflict with prior judicial precedent, unless the prior judicial construction ‘follows 15 from the unambiguous terms of the statute and thus leaves no room for agency 16 discretion.’” Allen T., at *3 (citing Nat'l Cable & Telecomms. Ass'n v. Brand X 17 Internet Services, 545 U.S. 967, 981-82 (2005); Schisler v. Sullivan, 3 F.3d 563, 18 567-58 (2d Cir. 1993) (“New regulations at variance with prior judicial precedents 19 are upheld unless ‘they exceeded the Secretary’s authority [or] are arbitrary and 20 capricious.’”). 2 ORDER - 11 Case 1:20-cv-03093-MKD ECF No. 21 filed 04/02/21 PageID.975 Page 12 of 19 1 1. Dr. Bothamley 2 On September 18, 2017, Dr. Bothamley performed an examination and 3 rendered an opinion on Plaintiff’s functioning. Tr. 789-97. Dr. Bothamley 4 diagnosed Plaintiff with back and hip pain, hiatal hernia, and migraine headaches. 5 Tr. 790. Dr. Bothamley opined Plaintiff’s back/hip pain causes moderate 6 limitations in her ability to stand, walk, lift, carry, push, pull, stoop, and crouch; 7 her hiatal hernia causes no to mild limitations; and her migraine headaches cause 8 mild limitations in her ability to communicate. Id. He further opined Plaintiff is 9 limited to sedentary work, which likely should improve with treatment, and the 10 limitations are estimated to last 12 months with treatment. Tr. 791. 11 On June 12, 2018, Dr. Bothamley provided another opinion on Plaintiff’s 12 functioning. Tr. 470-71. Dr. Bothamley diagnosed Plaintiff with chronic back 13 pain, neck pain, bilateral hip pain, hypermobility syndrome, hiatal hernia, migraine 14 headaches, and major depression, and he noted Plaintiff reported a history of 15 bipolar disorder and attention deficit hyperactivity disorder. Tr. 470. Dr. 16 Bothamley opined Plaintiff needs to lie down for 30 minute intervals up to three to 17 four times per day, per Plaintiff’s report; Plaintiff’s chronic pain has been made 18 worse due to her history of depression; continuous physical activity exacerbates 19 her pain; she would miss four or more days per month if she worked a 40-hour 20 2 ORDER - 12 Case 1:20-cv-03093-MKD ECF No. 21 filed 04/02/21 PageID.976 Page 13 of 19 1 week; and the limitations have existed since May 2017. Tr. 470-71. The ALJ 2 found Dr. Bothamley’s opinion is not persuasive. Tr. 24. 3 In evaluating Dr. Bothamley’s opinions, the ALJ cited to Exhibit 11F, pages 4 3 through 7. Id. However, the cited document is a review of the medical evidence, 5 performed by reviewing source Arild Lein, M.D. Tr. 766. Dr. Lein was asked to 6 review Plaintiff’s records to determine her eligibility for DSHS benefits in 7 September 2017. Id. Dr. Lein reviewed multiple medical records, including Dr. 8 Bothamley’s September 19, 2017 examination. Id. Dr. Lein opined Plaintiff is 9 limited to sedentary work and does not have any significant mental limitations . 10 Tr. 766-68. The ALJ summarized the opinion she attributed to Dr. Bothamley as 11 limiting Plaintiff to sedentary work, and finding Plaintiff had no significant mental 12 limitations. Tr. 24. That opinion was Dr. Lein’s opinion. The ALJ did not cite to 13 Dr. Bothamley’s 2017 opinion, nor his 2018 opinion. The ALJ did not mention 14 Dr. Lein as a reviewing source. As such, the ALJ’s analysis appears to address Dr. 15 Lein’s opinion, mistakenly attributed to Dr. Bothamley, and the ALJ failed to 16 provide any reasons to reject Dr. Bothamley’s opinions. The ALJ erred in failing 17 to evaluate Dr. Bothamley’s opinions. See 20 C.F.R. §§ 404.1520c(a) and (b), 18 416.920c(a) and (b). 19 Defendant argues the 2017 questionnaire completed by Dr. Bothamley was 20 not an opinion, because Dr. Bothamley restated Plaintiff’s statements regarding her 2 ORDER - 13 Case 1:20-cv-03093-MKD ECF No. 21 filed 04/02/21 PageID.977 Page 14 of 19 1 pain, and the ALJ need not re-analyze Plaintiff’s statements. ECF No. 19 at 13-14. 2 However, Dr. Bothamley attached medical records to his opinion, and explained “I 3 feel her diagnoses are chronic and unlikely to greatly improve,” and stated 4 “physical activity exacerbates her pain.” Tr. 470-71. While portions of Dr. 5 Bothamley’s questionnaire indicate the answers are based on Plaintiff’s self-report, 6 there is no indication that the opinion that Plaintiff would miss four or more days 7 per month was based on Plaintiff’s self-report. Further, Defendant presents no 8 argument regarding the ALJ’s failure to address Dr. Bothamley’s 2018 opinion. 9 Moreover, the ALJ’s statement that he “does not find the assessment to be 10 persuasive, as it is not consistent with, nor supported by, the examination findings 11 in the record,” is insufficient reasoning, as the ALJ did not provide an analysis of 12 the supportability and consistency of the opinions. See 20 C.F.R. §§ 13 404.1520c(b)(2), 416.920c(b)(2). As such, the ALJ erred in failing to account for 14 Dr. Bothamley’s opinions in the RFC, without giving any analysis as to why the 15 opinions were found to not be persuasive. 16 On remand, the ALJ is directed to consider Dr. Bothamley’s opinions and 17 Dr. Lein’s opinion, and incorporate the limitations into the RFC or provide an 18 analysis as to why the opinions are not persuasive. 19 20 2 ORDER - 14 Case 1:20-cv-03093-MKD ECF No. 21 filed 04/02/21 PageID.978 Page 15 of 19 1 2. Dr. Marks 2 On September 21, 2017, Dr. Marks examined Plaintiff and rendered an 3 opinion on her psychological functioning. Tr. 782-88. Dr. Marks diagnosed 4 Plaintiff with unspecified personality disorder, mild with some antisocial features; 5 unspecified amphetamine or other stimulant-related disorder in very recent 6 remission; and unspecified cannabis-related disorder in remission. Tr. 785. Dr. 7 Marks opined Plaintiff has moderate limitations in her ability to communicate and 8 perform effectively in a work setting, maintain appropriate behavior in a work 9 setting, complete a normal workday/workweek without interruptions from 10 psychological symptoms, and set realistic goals and plan independently. Tr. 785. 11 Dr. Marks opined Plaintiff otherwise had no to mild limitations in the remaining 12 areas of functioning, and opined she overall has a no to mild severity rating. Id. 13 Dr. Marks opined the current impairments are primarily due to substance use 14 within the prior 60 days, but the impairments would persist following 60 days of 15 sobriety, and opined the limitations were expected to last three months with 16 treatment. Tr. 786. 17 Defendant concedes the ALJ erred in failing to address Dr. Marks’ opinion, 18 but argues the error was harmless. ECF No. 19 at 14. As the case is being 19 remanded for the ALJ to address Dr. Bothamley and Dr. Lein’s opinions, the ALJ 20 is also instructed on remand to evaluate Dr. Marks’ opinion and incorporate the 2 ORDER - 15 Case 1:20-cv-03093-MKD ECF No. 21 filed 04/02/21 PageID.979 Page 16 of 19 1 limitations into the RFC or provide an analysis as to why the opinion is not 2 persuasive. 3 4 B. Plaintiff’s Symptom Claims Plaintiff faults the ALJ for failing to rely on reasons that were clear and 5 convincing in discrediting her symptom claims. ECF No. 18 at 19-21. An ALJ 6 engages in a two-step analysis to determine whether to discount a claimant’s 7 testimony regarding subjective symptoms. SSR 16–3p, 2016 WL 1119029, at *2. 8 “First, the ALJ must determine whether there is objective medical evidence of an 9 underlying impairment which could reasonably be expected to produce the pain or 10 other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). 11 “The claimant is not required to show that [the claimant’s] impairment could 12 reasonably be expected to cause the severity of the symptom [the claimant] has 13 alleged; [the claimant] need only show that it could reasonably have caused some 14 degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 15 Second, “[i]f the claimant meets the first test and there is no evidence of 16 malingering, the ALJ can only reject the claimant’s testimony about the severity of 17 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 18 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 19 omitted). General findings are insufficient; rather, the ALJ must identify what 20 symptom claims are being discounted and what evidence undermines these claims. 2 ORDER - 16 Case 1:20-cv-03093-MKD ECF No. 21 filed 04/02/21 PageID.980 Page 17 of 19 1 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); Thomas v. 2 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 3 explain why it discounted claimant’s symptom claims)). “The clear and 4 convincing [evidence] standard is the most demanding required in Social Security 5 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 6 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 7 Factors to be considered in evaluating the intensity, persistence, and limiting 8 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 9 duration, frequency, and intensity of pain or other symptoms; 3) factors that 10 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 11 side effects of any medication an individual takes or has taken to alleviate pain or 12 other symptoms; 5) treatment, other than medication, an individual receives or has 13 received for relief of pain or other symptoms; 6) any measures other than treatment 14 an individual uses or has used to relieve pain or other symptoms; and 7) any other 15 factors concerning an individual’s functional limitations and restrictions due to 16 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. §§ 17 404.1529(c), 416.929(c). The ALJ is instructed to “consider all of the evidence in 18 an individual’s record,” to “determine how symptoms limit ability to perform 19 work-related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 20 2 ORDER - 17 Case 1:20-cv-03093-MKD 1 ECF No. 21 filed 04/02/21 PageID.981 Page 18 of 19 The ALJ found that Plaintiff’s medically determinable impairments could 2 reasonably be expected to cause some of the alleged symptoms, but that Plaintiff’s 3 statements concerning the intensity, persistence, and limiting effects of her 4 symptoms were not entirely consistent with the evidence. Tr. 21. 5 The ALJ’s evaluation of Plaintiff’s symptom claims and the resulting 6 limitations relies largely on the ALJ’s assessment of the medical evidence. Having 7 determined a remand is necessary to readdress the medical source opinions, any 8 reevaluation must necessarily entail a reassessment of Plaintiff’s subjective 9 symptom claims. Thus, the Court need not reach this issue and on remand the ALJ 10 must also carefully reevaluate Plaintiff’s symptom claims in the context of the 11 entire record. See Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012) (“Because 12 we remand the case to the ALJ for the reasons stated, we decline to reach 13 [plaintiff’s] alternative ground for remand.”). 14 15 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 16 ALJ’s decision is not supported by substantial evidence and is not free of harmful 17 legal error. Accordingly, IT IS HEREBY ORDERED: 18 1. Plaintiff’s Motion for Summary Judgment, ECF No. 18, is GRANTED. 19 2. Defendant’s Motion for Summary Judgment, ECF No. 19, is DENIED. 20 2 ORDER - 18 Case 1:20-cv-03093-MKD 1 ECF No. 21 filed 04/02/21 PageID.982 Page 19 of 19 3. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff 2 REVERSING and REMANDING the matter to the Commissioner of Social 3 Security for further proceedings consistent with this recommendation pursuant to 4 sentence four of 42 U.S.C. § 405(g). 5 The District Court Executive is directed to file this Order, provide copies to 6 counsel, and CLOSE THE FILE. 7 DATED April 2, 2021. 8 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 2 ORDER - 19
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