Justice v. Saul, No. 4:2019cv05173 - Document 13 (E.D. Wash. 2020)
Court Description: ORDER GRANTING 9 PLAINTIFF'S SUMMARY-JUDGMENT MOTION AND DENYING 11 DEFENDANT'S SUMMARY-JUDGMENT MOTION. The Clerk's Office shall enter JUDGMENT in favor of Plaintiff REVERSING and REMANDING the matter to the Commissioner of Social Security for further proceedings consistent with this recommendation pursuant to sentence four of 42 U.S.C. § 405(g). FILE CLOSED. Signed by Senior Judge Edward F. Shea. (TR, Case Administrator)
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Justice v. Saul Doc. 13 Case 4:19-cv-05173-EFS ECF No. 13 filed 05/13/20 PageID.2578 Page 1 of 21 1 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 May 13, 2020 3 SEAN F. MCAVOY, CLERK 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 JENNIFER J.,1 4:19-CV-5173-EFS Plaintiff, 8 v. 9 10 No. ANDREW M. SAUL, the Commissioner of Social Security,2 11 ORDER GRANTING PLAINTIFF’S SUMMARY-JUDGMENT MOTION AND DENYING DEFENDANT’S SUMMARY-JUDGMENT MOTION Defendant. 12 13 Before the Court are the parties’ cross summary-judgment motions.3 14 15 Plaintiff Jennifer J. appeals the denial of benefits by the Administrative Law 16 Judge (ALJ). She alleges the ALJ erred by 1) improperly weighing the medical 17 18 19 20 21 22 1 To protect the privacy of the social-security Plaintiff, the Court refers to her by first name and last initial or by “Plaintiff.” See LCivR 5.2(c). 2 Because Andrew Saul is the Commissioner of the Social Security Administration, the Court substitutes him as the Defendant. See Fed. R. Civ. P. 25(d). 3 ECF Nos. 9 & 11. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 1 Dockets.Justia.com Case 4:19-cv-05173-EFS ECF No. 13 filed 05/13/20 PageID.2579 Page 2 of 21 1 opinions; 2) improperly determining that the impairments did not meet or equal 2 Listing 11.02B; 3) discounting Plaintiff’s symptom reports; and 4) failing to 3 properly consider lay statements. In contrast, Defendant Commissioner of Social 4 Security asks the Court to affirm the ALJ’s decision finding Plaintiff not disabled. 5 After reviewing the record and relevant authority, the Court grants Plaintiff’s 6 Motion for Summary Judgment, ECF No. 9, and denies the Commissioner’s Motion 7 for Summary Judgment, ECF No. 11. 8 I. 9 Five-Step Disability Determination A five-step sequential evaluation process is used to determine whether an 10 adult claimant is disabled.4 Step one assesses whether the claimant is currently 11 engaged in substantial gainful activity.5 If the claimant is engaged in substantial 12 gainful activity, benefits are denied.6 If not, the disability-evaluation proceeds to 13 step two.7 14 15 Step two assesses whether the claimant has a medically severe impairment, or combination of impairments, which significantly limits the claimant’s physical 16 17 18 19 20 21 22 4 20 C.F.R. § 416.920(a). 5 Id. § 416.920(a)(4)(i). 6 Id. § 416.920(b). 7 Id. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 2 Case 4:19-cv-05173-EFS ECF No. 13 filed 05/13/20 PageID.2580 Page 3 of 21 1 or mental ability to do basic work activities.8 If the claimant does not, benefits are 2 denied. 9 If the claimant does, the disability-evaluation proceeds to step three.10 3 Step three compares the claimant’s impairment(s) to several recognized by 4 the Commissioner to be so severe as to preclude substantial gainful activity.11 If an 5 impairment meets or equals one of the listed impairments, the claimant is 6 conclusively presumed to be disabled.12 If an impairment does not, the disability- 7 evaluation proceeds to step four. 8 Step four assesses whether an impairment prevents the claimant from 9 performing work she performed in the past by determining the claimant’s residual 10 functional capacity (RFC).13 If the claimant is able to perform prior work, benefits 11 are denied.14 If the claimant cannot perform prior work, the disability-evaluation 12 proceeds to step five. 13 14 Step five, the final step, assesses whether the claimant can perform other substantial gainful work—work that exists in significant numbers in the national 15 16 17 18 19 20 21 22 8 20 C.F.R. § 416.920(a)(4)(ii). 9 Id. § 416.920(c). 10 Id. 11 Id. § 416.920(a)(4)(iii). 12 Id. § 416.920(d). 13 Id. § 416.920(a)(4)(iv). 14 Id. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 3 Case 4:19-cv-05173-EFS ECF No. 13 filed 05/13/20 PageID.2581 Page 4 of 21 1 economy—considering the claimant’s RFC, age, education, and work experience.15 2 If so, benefits are denied. If not, benefits are granted.16 3 The claimant has the initial burden of establishing entitlement to disability 4 benefits under steps one through four.17 At step five, the burden shifts to the 5 Commissioner to show that the claimant is not entitled to benefits.18 6 II. Factual and Procedural Summary 7 On October 18, 2009, Plaintiff filed a Title XVI supplemental security 8 income application.19 The claim was denied initially and upon reconsideration.20 An 9 administrative hearing was then held in 2012 after which the ALJ denied 10 Plaintiff’s claim.21 11 Plaintiff appealed the ALJ’s denial to federal district court. The parties 12 agreed to a stipulated remand, which was accepted by the district court.22 A second 13 14 15 16 17 18 19 20 21 22 15 20 C.F.R. § 416.920(a)(4)(v); Kail v. Heckler, 722 F.2d 1496, 1497-98 (9th Cir. 1984). 16 20 C.F.R. § 416.920(g). 17 Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 18 Id. 19 AR 173-85. 20 AR 98 & 112. 21 AR 26. 22 AR 733-34. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 4 Case 4:19-cv-05173-EFS ECF No. 13 filed 05/13/20 PageID.2582 Page 5 of 21 1 administrative hearing was held in 2016 after which the ALJ denied Plaintiff’s 2 claim.23 3 Plaintiff appealed the ALJ’s denial to federal district court. The district court 4 remanded the case to the Commissioner of Social Security for further proceedings. 5 A third administrative hearing was held in 2019 before ALJ R.J. Payne, who also 6 denied the claim.24 7 In denying Plaintiff’s disability claim, the ALJ made the following findings: 8 9 Step one: Plaintiff had engaged in substantial gainful activity April 2015 through December 2017. Plaintiff did not engage in substantial 10 gainful activity during the requested closed period October 18, 2010, 11 to March 31, 2015. 12 13 Step two: Plaintiff had the following medically determinable severe impairments: headache disorder, asthma, depressive disorder, 14 attention deficit hyperactivity disorder (ADHD), anxiety 15 disorder/panic disorder, and posttraumatic stress disorder (PTSD). 16 17 Step three: Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the 18 listed impairments. 19 20 21 22 23 AR 1114-26. 24 AR 1056-1110. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 5 Case 4:19-cv-05173-EFS 1 2 filed 05/13/20 PageID.2583 Page 6 of 21 RFC: Plaintiff had the RFC to perform a full range of work at all exertional levels but with the following non-exertional limitations: 3 [Plaintiff] must avoid concentrated exposure to pulmonary irritants, extreme cold, loud noise, unprotected heights, heavy industrial-type vibrations, and strong (above 25 MPH) wind. Mentally, [Plaintiff] can understand, remember, and carry out simple, routine and/or repetitive work instructions and work tasks; can handle superficial contact with the public; can work with or in the vicinity of coworkers, but not in a teamwork-type work setting; can handle normal supervision (i.e. no over-the-shoulder or confrontational type supervision[)]; would do best in a routine setting with little or no changes; and is precluded from fastpaced or strict quota-type work. 4 5 6 7 8 9 10 11 Step four: Plaintiff was not capable of performing past relevant work. Step five: considering Plaintiff’s RFC, age, education, and work 12 history, Plaintiff could perform work that existed in significant 13 numbers in the national economy, such as office cleaner, mail clerk, 14 15 ECF No. 13 and small parts assembler.25 When assessing the medical-opinion evidence, the ALJ gave: 16 17 great weight to the opinions of testifying expert Ellen Rozenfield, Ph.D. and the State agency medical consultants; 18 19 significant weight to the opinion of testifying expert William Debolt, M.D.; 20 21 22 25 AR 1033-44. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 6 Case 4:19-cv-05173-EFS 1 2 5 12 The ALJ also found that Plaintiff’s medically determinable impairments could reasonably be expected to cause some of the alleged symptoms, but that her statements concerning the intensity, persistence, and limiting effects of those symptoms were not entirely consistent with the medical evidence and other evidence in the record.26 Likewise, the ALJ discounted the lay statements from Plaintiff’s friend and coworker.27 13 14 no weight to the opinions of testifying experts John Morse, M.D. and filing date. 7 11 little weight to the opinions of primary care physician Ronaldo Margaret Moore, Ph.D., and the opinions that predated Plaintiff’s 6 10 Plaintiff requested review of the ALJ’s decision by the Appeals Council, which denied review. Plaintiff timely appealed to this Court. 15 III. 16 17 PageID.2584 Page 7 of 21 Mark Duris, Ph.D.; and 4 9 filed 05/13/20 Luanzon, M.D; Melanie Edwards, LMHC; Jan Kouzes, Ed.D; and 3 8 ECF No. 13 Standard of Review A district court’s review of the Commissioner’s final decision is limited.28 The Commissioner’s decision is set aside “only if it is not supported by substantial 18 19 20 21 22 26 AR 1039. 27 AR 1043. 28 42 U.S.C. § 405(g). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 7 Case 4:19-cv-05173-EFS ECF No. 13 filed 05/13/20 PageID.2585 Page 8 of 21 1 evidence or is based on legal error.”29 Substantial evidence is “more than a mere 2 scintilla but less than a preponderance; it is such relevant evidence as a reasonable 3 mind might accept as adequate to support a conclusion.”30 Moreover, because it is 4 the role of the ALJ and not the Court to weigh conflicting evidence, the Court 5 upholds the ALJ’s findings “if they are supported by inferences reasonably drawn 6 from the record.”31 The Court considers the entire record as a whole.32 7 8 Further, the Court may not reverse an ALJ decision due to a harmless error.33 An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 9 10 11 12 13 14 15 16 17 18 19 20 21 22 29 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). 30 Id. at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). 31 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 32 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (The court “must consider the entire record as whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion,” not simply the evidence cited by the ALJ or the parties.); Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998) (“An ALJ's failure to cite specific evidence does not indicate that such evidence was not considered[.]”). 33 Molina, 674 F.3d at 1111. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 8 Case 4:19-cv-05173-EFS ECF No. 13 filed 05/13/20 PageID.2586 Page 9 of 21 1 nondisability determination.”34 The party appealing the ALJ’s decision generally 2 bears the burden of establishing harm.35 3 4 IV. A. Analysis Medical Opinions: Plaintiff establishes error. 5 Plaintiff challenges the ALJ’s assignment of little weight to Plaintiff’s 6 primary care physician Ronaldo Luanzon, M.D. The Court agrees the ALJ erred by 7 failing to meaningfully explain why he discounted this medical opinion and 8 therefore the Court is unable to assess whether the ALJ’s findings are supported 9 by substantial evidence. 10 The weighing of medical-source opinions is dependent upon the nature of the 11 medical relationship, i.e., 1) a treating physician; 2) an examining physician who 12 examines but did not treat the claimant; and 3) a reviewing physician who neither 13 treated nor examined the claimant.36 Generally, more weight is given to the 14 opinion of a treating physician than to an examining physician’s opinion and both 15 treating and examining opinions are to be given more weight than the opinion of a 16 reviewing physician.37 17 18 19 20 21 22 34 Id. at 1115 (quotation and citation omitted). 35 Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 36 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). 37 Id.; Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 9 Case 4:19-cv-05173-EFS 1 ECF No. 13 filed 05/13/20 PageID.2587 Page 10 of 21 When a treating physician’s or evaluating physician’s opinion is not 2 contradicted by another physician, it may be rejected only for “clear and 3 convincing” reasons, and when it is contradicted, it may be rejected only for 4 “specific and legitimate reasons” supported by substantial evidence.38 A reviewing 5 physician’s opinion may be rejected for specific and legitimate reasons supported by 6 substantial evidence, and the opinion of an “other” medical source39 may be 7 rejected for specific and germane reasons supported by substantial evidence.40 The 8 opinion of a reviewing physician serves as substantial evidence if it is supported by 9 other independent evidence in the record.41 10 On August 11, 2022, Dr. Luanzon completed a medical source statement.42 11 Dr. Luanzon diagnosed Plaintiff with ADHD, asthma, PTSD, and migraines, and 12 13 14 15 16 17 18 19 20 21 22 38 Lester, 81 F.3d at 830. 39 See 20 C.F.R. § 404.1502 (For claims filed before March 27, 2017, acceptable medical sources are licensed physicians, licensed or certified psychologists, licensed optometrists, licensed podiatrists, qualified speech-language pathologists, licensed audiologists, licensed advanced practice registered nurses, and licensed physician assistants within their scope of practice—all other medical providers are “other” medical sources.). 40 Molina, 674 F.3d at 1111; Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). 41 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 42 AR 380-84. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 10 Case 4:19-cv-05173-EFS ECF No. 13 filed 05/13/20 PageID.2588 Page 11 of 21 1 opined that Plaintiff would be absent from work four or more days a month as a 2 result of intermittent debilitating exacerbation of her headaches.43 3 The ALJ discounted Dr. Luanzon’s opinion because 1) he did not point to 4 treatment records showing findings of intensity and frequency such that this level 5 of absenteeism was established; 2) a significant portion of his treatment notes 6 indicated Plaintiff’s primary reason for visiting was unrelated to alleged migraines; 7 and 3) his opinion does not have sufficient backing in the record to give significant 8 weight. 9 First, the ALJ discounted Dr. Luanzon‘s check-box opinion because he “did 10 not provide narrative justification for this limitation” or “point to treatment records 11 showing findings of intensity and frequency such that this level of absenteeism was 12 established.”44 Individual medical opinions are preferred over check-box reports.45 13 An ALJ may permissibly reject check-box reports that do not contain any 14 explanation of the bases for their conclusions.46 However, here, Dr. Luanzon 15 explained that “even at stable condition, patient continues to have intermittent 16 17 18 19 20 21 22 43 AR 381 & 384. 44 AR 1041 45 Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996); Bray, 554 F.3d at 1228 (recognizing that a medical opinion may be rejected if it is conclusory or inadequately supported). 46 Garrison, 759 F.3d at 1014 n.17. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 11 Case 4:19-cv-05173-EFS ECF No. 13 filed 05/13/20 PageID.2589 Page 12 of 21 1 debilitating exacerbation of her headaches.”47 Even if Dr. Luanzon’s opinion was 2 found to be “conclusory” or “brief,” the ALJ may only “discredit a treating 3 physicians’ opinions that are conclusory, brief, and unsupported by the record as a 4 whole or by objective medical findings.”48 Here, the ALJ did not explain why Dr. 5 Luanzon’s opinion was inconsistent with the longitudinal record or objective 6 medical findings. Thus, the ALJ erred in discounting Dr. Luanzon’s opinion for 7 these reasons.49 8 The ALJ also discounted Dr. Luanzon’s opinion because a “significant 9 portion of Dr. Luanzon’s treatment notes indicate [Plaintiff’s] primary reason for 10 visiting was unrelated to alleged migraines.”50 While the number of times a 11 plaintiff meets with a provider is relevant in assessing the weight of that source’s 12 medical opinion,51 the ALJ did not explain why visits to Dr. Luanzon’s for 13 treatment outside of migraines would prevent Dr. Luanzon from being familiar 14 with Plaintiff’s reported migraines, when Plaintiff saw Dr. Luanzon’s for 15 migraines, Dr. Luanzon prescribed Plaintiff migraine medications, and referred 16 17 18 19 20 21 22 47 See AR 384, 620, & 625. 48 Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014) (emphasis in original) (citing Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004)). 49 See AR 50 AR 1041. 51 See 20 C.F.R.§ 416.927(c). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 12 Case 4:19-cv-05173-EFS ECF No. 13 filed 05/13/20 PageID.2590 Page 13 of 21 1 Plaintiff to a neurologist for her migraines.52 Thus, the ALJ erred in failing to 2 explain his interpretation of this conflicting evidence.53 3 Lastly, the ALJ found that Dr. Luanzon’s opinion was inconsistent with the 4 longitudinal medical record. While consistency with the medical record is a factor 5 for the ALJ to consider, the ALJ did not explain in the paragraph pertaining to Dr. 6 Luanzon why the opinion was inconsistent with the longitudinal record.54 In other 7 sections of the opinion, the ALJ discussed portions of the medical record and other 8 medical opinions, but the ALJ’s opinion still as a whole does not permit the Court 9 to meaningfully assess whether the ALJ’s finding that Dr. Luanzon’s opinion was 10 11 12 13 14 15 16 17 18 19 20 21 22 52 See AR 1041, 611 (Dr. Luanzon prescribed Plaintiff Fioricet with Codeine, Gabapentin 300 mg., and Gabapentin 100 mg.); 625 (3/29/11 Dr. Luanzon treatment notes: Plaintiff’s chief complaint follow-up on migraine and depression. Referred Plaintiff to Dr. Freedman for further evaluation and management for her migraines.), 620 (6/3/11 Dr. Luanzon treatment notes: Plaintiff’s chief complaint is migraine, recommend continue to see Dr. Atwal); 20 C.F.R. §§ 404.1527(c)(6), 416.927(c)(6). 53 Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986) (An ALJ must set out a “detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.”) 54 See Lingenfelter, 504 F.3d at 1042 (recognizing that the ALJ is to consider the consistency of the medical opinion with the record as a whole). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 13 Case 4:19-cv-05173-EFS ECF No. 13 filed 05/13/20 PageID.2591 Page 14 of 21 1 inconsistent with the longitudinal record relating to Plaintiff’s impairment is 2 supported by substantial evidence, particularly because the record reflects multiple 3 emergency department visits for migraines, despite Plaintiff adhering to prescribed 4 treatment, and limitations in Plaintiff’s functioning when experiencing a 5 migraine.55 6 The ALJ’s finding in the weighing of Dr. Luanzon’s opinion offers an 7 insufficient explanation to permit the Court to assess whether this finding is 8 rational and supported by substantial evidence.56 9 B. 10 Step Three (Listings): Plaintiff establishes error. Plaintiff contends the ALJ erred by finding that Plaintiff’s impairments did 11 not meet or medically equal Listing 11.02B, singly or in combination. The Court 12 agrees. 13 14 15 16 17 18 19 20 21 22 55 See AR 250-51, 255, 498, 505, 512, 521, 620, 528, 534, 543-46, 945, & 1021; Nguyen v. Chater, 100 F.3d 1362, 164 (9th Cir. 1996). 56 Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988) (requiring the ALJ to identify the evidence supporting the found conflict to permit the Court to meaningfully review the ALJ’s finding); Blakes v. Barnhart, 331 F.3d 565, 569 (7th Cir. 2003) (“We require the ALJ to build an accurate and logical bridge from the evidence to her conclusions so that we may afford the claimant meaningful review of the SSA’s ultimate findings.”). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 14 Case 4:19-cv-05173-EFS 1 ECF No. 13 filed 05/13/20 PageID.2592 Page 15 of 21 Listing 11.02B requires that the migraines occur at least once per week for 2 three consecutive months, despite adherence to prescribed treatment.57 When 3 determining if a claimant’s condition may equal Listing 11.02, the following 4 considerations are relevant: any detailed descriptions from an acceptable medical 5 source of the typical headache events, including all associated phenomena; the 6 frequency of the headache events; adherence to prescribed treatment; side effects of 7 treatment; and limitations in functioning that may be associated with the 8 headache disorder or its treatment.58 9 10 The ALJ found Plaintiff’s migraines did not equal Listing 11.02B, as her migraines did not satisfy the required frequency or intensity.59 11 First, the ALJ considered the testimony of testifying expert, Dr. Debolt, that 12 Plaintiff’s self-reported migraines are not sufficient to establish she has headaches 13 or that the intensity of the headaches satisfies the listing, and the lack of 14 neurological treatment, which Dr. Debolt believes is required to establish the 15 frequency and intensity factors.60 16 17 18 19 20 21 22 57 20 C.F.R. § 404, Appendix 1 to Subpart P, § 11.00. 58 SSR 19-4p. 59 AR 1035-36. 60 AR 1036. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 15 Case 4:19-cv-05173-EFS 1 ECF No. 13 filed 05/13/20 PageID.2593 Page 16 of 21 Dr. Debolt testified that Plaintiff’s migraines and asthma, taken together, 2 did not equate to any exertional limitations.61 Dr. Debolt opined that Plaintiff’s 3 frequent visits to the emergency room did not equate to Listing 11.02B in large 4 part “because [Plaintiff] has not been evaluated by a headache specialist or a 5 neurologist.”62 Dr. Debolt went on to explain that it was his interpretation that the 6 condition at issue has to be there for a year, and that this record did not show 7 Plaintiff’s headaches occurred “once a week for more than a few months.”63 8 The ALJ erroneously relied on Dr. Debolt’s testimony relating to Plaintiff 9 not seeing a neurologist and that when considering Listing 11.02, the frequency of 10 the migraines needs to be at least for a year. The record here shows Plaintiff has 11 been evaluated by two neurologists.64 In addition, when determining whether an 12 individual is disabled for SSA purposes, there must be evidence that the claimant’s 13 impairments constitute more than slight abnormalities and have more than a 14 minimal effect on the claimant’s ability to perform basic work activities for a 15 continuous period of twelve months.65 But when determining if a claimant’s 16 impairments equal Listing 11.02B, its not a twelve month period that is considered 17 18 19 20 21 22 61 AR 1070. 62 AR 1085. 63 AR 1089 64 AR 1002 & 581-82. 65 SSR 85-28 & 82-52. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 16 Case 4:19-cv-05173-EFS ECF No. 13 filed 05/13/20 PageID.2594 Page 17 of 21 1 but whether the claimant’s migraines occur at least once per week for three 2 consecutive months, despite adherence to prescribed treatment.66 Dr. Debolt—and 3 the ALJ—failed to appreciate this Listing 11.02B distinction. 4 Second, the ALJ found that the record, even when considering Plaintiff’s 5 self-reports, did not occur with the regularity required of the listing for three 6 consecutive months during the relevant period. The frequency of migraines is a 7 relevant consideration in determining if a claimant’s migraines is of equal severity 8 to Listing 11.02B.67 Treatment records show Plaintiff complained of headaches 9 several times a month, if not daily at times,68 which the ALJ acknowledged in his 10 decision.69 However, the ALJ cites to nothing in the record nor provides an 11 explanation regarding the frequency of Plaintiff’s headaches. The ALJ’s finding in 12 this regard offers an insufficient explanation to permit the Court to assess whether 13 this finding is rational and supported by substantial evidence, particularly when 14 15 16 17 18 19 20 21 22 66 20 C.F.R. § 404, Appendix 1 to Subpart P, § 11.00. 67 See 20 C.F.R. § 404, Appendix 1 to Subpart P, § 11.00; SSR 19-4p. 68 AR 1021 (2/16/12 Dr. Atwal treatment notes: “[Plaintiff] has tried imitrex, zomig, relpax, maxalt, verapamil, propranolol, topimax, depakoate, amitriptyline, gabapentin, fioricet, and multiple seizure medications without success”). 69 AR 1039. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 17 Case 4:19-cv-05173-EFS ECF No. 13 filed 05/13/20 PageID.2595 Page 18 of 21 1 the record indicates that Plaintiff reported frequent headaches to her treatment 2 provider.70 3 Third, the ALJ found Plaintiff’s lack of follow-up with referrals to specialists 4 represented non-adherence with medical treatment, regardless for the reason of 5 non-adherence.71 The ALJ applied this reasoning throughout his decision. While 6 adherence with medical treatment is a relevant consideration,72 the record here 7 shows Plaintiff had been evaluated by at least two neurologists – upon referral.73 8 The record also shows that Plaintiff tried multiple medications, without success, in 9 an attempt to relieve her headache symptoms.74 Thus, Plaintiff’s complete lack of 10 11 12 13 14 15 16 17 18 19 20 21 22 70 See, e.g., AR 287, 289, 291, 295, 300, 304, 307, 311, 312, 426-35, 487, 498, 505, 562, 580-82, & 620; see also Embrey, 849 F.2d at 421-22) (requiring the ALJ to identify the evidence supporting the found conflict to permit the Court to meaningfully review the ALJ’s finding); Blakes, 331 F.3d at 569 (“We require the ALJ to build an accurate and logical bridge from the evidence to her conclusions so that we may afford the claimant meaningful review of the SSA’s ultimate findings.”). 71 AR 1036. 72 See SSR 19-4p. 73 AR 1002 (follow up visit for headaches with neurologist, Sarabjit, Atwal, M.D.); AR 581-82 (visit for neurological consultation with Michael Freedman, M.D. after referral by Dr. Luanzon). 74 AR 312, 1002, & 1021. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 18 Case 4:19-cv-05173-EFS ECF No. 13 filed 05/13/20 PageID.2596 Page 19 of 21 1 follow-up with referrals to neurological or headache specialists is not supported by 2 the record. 3 Lastly, the ALJ found there was a lack of objective or observational evidence 4 that demonstrates the severity of Plaintiff’s migraines equate with “typical 5 dyscognitive seizures.”75 However, outside of discussing Plaintiff’s “gainful activity 6 from 2015 through 2017,” the ALJ neither cites to nor discusses any evidence that 7 relates to the severity of Plaintiff’s symptoms during the closed period. The Court 8 understands the difficulty in finding sufficient evidence to evaluate a claimant’s 9 reported severity and frequency of her headaches, but there is not sufficient 10 explanation of the evidence to permit the Court to assess whether the ALJ’s 11 severity of finding is rational and supported by substantial evidence.76 12 On remand, in evaluating whether Plaintiff’s headache disorder is equal in 13 severity and duration to the criteria in 11.02B, the following is to be considered: 14 detailed descriptions from an acceptable medical source of a typical headache 15 event, including all associated phenomena (for example, premonitory symptoms, 16 aura, duration, intensity, and accompanying symptoms); the frequency of headache 17 events; adherence to prescribed treatment; side effects of treatment (for example 18 many medications used for treating a headache disorder can produce drowsiness, 19 confusion, or inattention); and limitations in function that may be associated with 20 21 22 75 AR 1036. 76 Embrey, 849 F.2d at 421-22; Blakes, 331 F.3d at 569. 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 19 Case 4:19-cv-05173-EFS ECF No. 13 filed 05/13/20 PageID.2597 Page 20 of 21 1 the headache disorder or effects of its treatment, such as interference with activity 2 during the day (for example, the need for a darkened and quiet room, having to lie 3 down without moving, a sleep disturbance that affects daytime activities, or other 4 related needs and limitations).77 5 C. Other Steps: The ALJ must reevaluate Plaintiff’s symptom reports 6 and lay witness statements. 7 Plaintiff argues that the ALJ also misweighed Plaintiff’s symptom reports 8 and lay witness statements. Because the ALJ’s step-three finding was based on an 9 erroneous weighing of the medical evidence, the ALJ on remand is to proceed with 10 a new sequential analysis beginning at step three. 11 D. Remand for Further Proceedings 12 Plaintiff submits a remand for payment of benefits is warranted. However, 13 even if Plaintiff’s physical impairments are considered severe and the RFC is 14 revised to include all or many of the opined limitations, it is not clear that there is 15 no work existing in significant numbers that Plaintiff can perform. Therefore, the 16 record creates serious doubt that Plaintiff is disabled. Remand for further 17 proceedings, rather than for an award of benefits, is necessary.78 18 19 20 21 22 77 See SSR 19-4p. 78 See Garrison, 759 F.3d at 1021; Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 2017). 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 20 Case 4:19-cv-05173-EFS ECF No. 13 filed 05/13/20 PageID.2598 Page 21 of 21 1 On remand, the ALJ is to reweigh the medical-opinion evidence of Dr. 2 Luanzon, Plaintiff’s symptom reports, and lay witness statements, and reevaluate 3 the sequential process beginning at step three. 4 V. Conclusion 5 Accordingly, IT IS HEREBY ORDERED: 6 1. Plaintiff’s Motion for Summary Judgment, ECF No. 9, is GRANTED. 7 2. The Commissioner’s Motion for Summary Judgment, ECF No. 11, is 8 9 DENIED. 3. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff 10 REVERSING and REMANDING the matter to the Commissioner of 11 Social Security for further proceedings consistent with this 12 recommendation pursuant to sentence four of 42 U.S.C. § 405(g). 13 4. 14 IT IS SO ORDERED. The Clerk’s Office is directed to file this Order, 15 16 The case shall be CLOSED. provide copies to all counsel, and close the file. DATED this 13th day of May 2020. 17 18 19 s/Edward F. Shea _____________ EDWARD F. SHEA Senior United States District Judge 20 21 22 23 ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 21
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