Cope v. Berryhill, No. 3:2017cv05084 - Document 19 (W.D. Wash. 2017)
Court Description: ORDER REVERSING AND REMANDING DEFENDANTS DECISION TO DENY BENEFITS by Judge David W. Christel. This matter is reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner of Social Security for further proceedings consistent with this Order.(SH)
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Cope v. Berryhill Doc. 19 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 RYAN S. COPE, Plaintiff, 11 12 13 v. NANCY A BERRYHILL, Acting Commissioner of Social Security, CASE NO. 3:17-CV-05084-DWC ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS 14 Defendant. 15 16 Plaintiff Ryan S. Cope filed this action, pursuant to 42 U.S.C. § 405(g), for judicial 17 review of Defendant’s denial of Plaintiff’s applications for supplemental security income (“SSI”) 18 and disability insurance benefits (“DIB”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil 19 Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by 20 the undersigned Magistrate Judge. See Dkt. 6. 21 After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) 22 erred in his treatment of Plaintiff’s testimony and the lay witness testimony. Had the ALJ 23 properly considered this evidence, the residual functional capacity (“RFC”) may have included 24 additional limitations. The ALJ’s error is therefore not harmless, and this matter is reversed and ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -1 Dockets.Justia.com 1 remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner of Social 2 Security (“Commissioner”) for further proceedings consistent with this Order. 3 4 FACTUAL AND PROCEDURAL HISTORY On October 11, 2013, Plaintiff filed an application for DIB and SSI. See Dkt. 9, 5 Administrative Record (“AR”) 23. The application was denied upon initial administrative review 6 and on reconsideration. See AR 23. ALJ James W. Sherry held a hearing on June 9, 2015. AR 7 42-69. At the hearing, Plaintiff amended his alleged disability onset date to June 1, 2013. AR 45. 8 In a decision dated August 28, 2015, the ALJ determined Plaintiff to be not disabled. AR 23-34. 9 Plaintiff’s request for review of the ALJ’s decision was denied by the Appeals Council, making 10 the ALJ’s decision the final decision of the Commissioner. See AR 1-4; 20 C.F.R. § 404.981, § 11 416.1481. 12 In Plaintiff’s Opening Brief, Plaintiff maintains the ALJ erred: (1) by failing to explain 13 why Plaintiff’s combination of impairments did not meet or medically equal Listing 11.09; (2) in 14 his treatment of the medical evidence; (3) by not giving clear and convincing reasons for finding 15 Plaintiff’s subjective symptom testimony not fully supported; (4) by failing to provide germane 16 reasons to reject lay witness testimony; and (5) by making an RFC determination and Step Four 17 findings that were not supported by substantial evidence. Dkt. 13, pp. 2-18. 18 19 STANDARD OF REVIEW Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 20 social security benefits if the ALJ’s findings are based on legal error or not supported by 21 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th 22 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -2 1 2 DISCUSSION I. Whether the ALJ properly determined Plaintiff’s combination of impairments did not meet or equal Listing 11.09. 3 Plaintiff argues the ALJ improperly concluded Plaintiff’s multiple sclerosis did not meet 4 or medically equal Listing 11.09(A) or 11.09(C). Dkt, 13, pp. 7, 17. 5 At Step Three of the sequential evaluation process, the ALJ considers whether one or 6 more of the claimant’s impairments meets or equals an impairment listed in Appendix 1 to 7 Subpart P of the regulations. 20 C.F.R. § 404.1520(a)(4)(iii). Each Listing sets forth the 8 “symptoms, signs, and laboratory findings” which must be established in order for a claimant’s 9 impairment to meet the Listing. Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999) (citation 10 omitted). If a claimant meets or equals a Listing, the claimant is considered disabled without 11 further inquiry. See 20 C.F.R. § 416.920(d). 12 The burden of proof is on the claimant to establish that he meets or equals any of the 13 impairments in the Listings. See Tackett, 180 F.3d at 1098. “A generalized assertion of 14 functional problems,” however, “is not enough to establish disability at step three.” Id. at 1100 15 (citing 20 C.F.R. § 404.1526). A mental or physical impairment “must result from anatomical, 16 physiological, or psychological abnormalities which can be shown by medically acceptable 17 clinical and laboratory diagnostic techniques.” 20 C.F.R. § 404.1508 (effective through March 18 26, 2017). It must be established by medical evidence “consisting of signs, symptoms, and 19 laboratory findings.” Id.; see also Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *2 20 (1996) (a Step Three determination must be made on basis of medical factors alone). An 21 impairment meets a listed impairment “only when it manifests the specific findings described in 22 the set of medical criteria for that listed impairment.” SSR 83-19, 1983 WL 31248, at *2 (1983). 23 The ALJ “is not required to discuss the combined effects of a claimant’s impairments or compare 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -3 1 them to any listing in an equivalency determination, unless the claimant presents evidence in an 2 effort to establish equivalence.” Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005). 3 Listing 11.09 1 states that a claimant’s multiple sclerosis impairment meets or equals the 4 listing when a claimant has: 5 6 7 8 A. Disorganization of motor function as described in 11.04B; or B. Visual or mental impairment as described under the criteria in 2.02, 2.03, 2.04, or 12.02; or C. Significant, reproducible fatigue of motor function with substantial muscle weakness on repetitive activity, demonstrated on physical examination, resulting from neurological dysfunction in areas of the central nervous system known to be pathologically involved by the multiple sclerosis process. 9 20 C.F.R., Part 404, Subpt. P, App. 1, § 11.09 (effective Aug. 12, 2015 – May 23, 2016). 10 Plaintiff specifically asserts the medical evidence shows his symptoms and limitations 11 meet or equal Listing 11.09(A) or 11.09(C). Dkt. 13, pp. 7, 17. In order to meet Listing 11.09(A), 12 the following criteria must be met or medically equaled: 13 14 15 16 Persistent disorganization of motor function in the form of paresis or paralysis, tremor or other involuntary movements, ataxia and sensory disturbances (any or all of which may be due to cerebral, cerebellar, brain stem, spinal cord, or peripheral nerve dysfunction) which occur singly or in various combinations, frequently provides the sole or partial basis for decision in cases of neurological impairment. The assessment of impairment depends on the degree of interference with locomotion and/or interference with the use of fingers, hands, and arms. 17 20 C.F.R., Part 404, Subpt. P, App. 1, § 11.04(B) (effective Aug. 12, 2015 – May 23, 2016) 18 (citing § 11.00(C)). 19 Listing 11.09(C) “deals with motor abnormalities which occur on activity.” Id. at § 20 11.00(E). Further, Listing 11.09(C): 21 is dependent upon (1) documenting a diagnosis of multiple sclerosis, (2) obtaining a description of fatigue considered to be characteristic of multiple sclerosis, and 22 23 24 1 Although this Listing was amended after the ALJ’s decision, Plaintiff concedes the applicable Listing is the text as it was in effect at the time of the ALJ’s decision. Dkt. 13, p. 17 n.19 (citing 81 FR 43048-01, 4306 n.6 (2016)). As such, the Court cites and applies Listing 11.09 as it was in effect at the time of the ALJ’s decision. ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -4 1 2 (3) obtaining evidence that the system has actually become fatigued. The evaluation of the magnitude of the impairment must consider the degree of exercise and the severity of the resulting muscle weakness. 3 Id. at § 11.00(E). 4 At Step Two, the ALJ found Plaintiff’s multiple sclerosis was a severe impairment. AR 5 25. At Step Three, the ALJ determined Plaintiff “does not have an impairment or combination of 6 impairments that meets or medically equals the severity of one of the listed impairments.” AR 7 27. In relevant part, the ALJ found: 8 9 10 11 12 The undersigned has considered all of the claimant’s impairments individually and in combination but can find no evidence that the combined clinical findings from such impairments reach the level of severity contemplated in the listings . . . [Plaintiff’s] multiple sclerosis does not meet or equal listing 11.09, Multiple Sclerosis, because the record does not demonstrate findings of: A. Disorganization of motion function; B. Visual or mental impairment; or C. Significant, reproducible fatigue of motor function with substantial muscle weakness on repetitive activity, demonstrated on physical examination, resulting from neurological dysfunction in areas of the central nervous system known to be pathologically involved by multiple sclerosis process. 13 14 AR 27-28 (emphasis added). 15 Plaintiff maintains the “ALJ erred by failing to adequately explain why” Plaintiff’s 16 combination of impairments “did not meet or medically equal Listing 11.09(A) or 11.09(C).” 17 Dkt. 13, p. 17 (emphasis added). Yet throughout his decision, the ALJ discussed and summarized 18 the objective medical evidence as it was relevant to Listing 11.09, including discussions of 19 diagnostic imaging of Plaintiff’s spine and brain, right-sided numbness, and decrease to light 20 touch in his upper and lower right-side extremities. See AR 29-31. The ALJ also noted multiple 21 physical examinations in which Plaintiff had “normal” muscle tests and motor strength. See, e.g., 22 AR 29-31 (despite right-sided numbness, “all muscle tests and reflexes were normal”; “normal 23 strength in the upper and lower extremities”; “[o]ther 2014 medical evidence of records shows 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -5 1 the claimant’s physical examinations were within normal limits . . . despite significant numbers 2 of lesions”). Thus, contrary to Plaintiff’s argument, the ALJ adequately “discussed and evaluated 3 evidence supporting his conclusion” that Plaintiff’s impairments did not meet Listing 11.09. See 4 Lewis v. Apfel, 236 F.3d 503, 513 (9th Cir. 2001) (to satisfy Step three, an ALJ must “discuss 5 and evaluate the evidence that supports [his] conclusion,” though he need not do so under any 6 particular heading). As such, the ALJ did not err at Step Three. 7 II. 8 Plaintiff asserts the ALJ erred in his assessment of the medical opinion evidence. Dkt. 13, Whether the ALJ properly weighed the medical opinion evidence. 9 pp. 2-8. In particular, Plaintiff argues the ALJ erred (1) in his assessment of the medical opinion 10 evidence as a whole; (2) because his decision was not based on substantial evidence in light of 11 new evidence; and (3) by giving great weight to non-examining physician, Dr. Elizabeth St. 12 Louis, M.D. Id. 13 The ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted 14 opinion of either a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 15 1996) (citing Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990); Embrey v. Bowen, 849 F.2d 16 418, 422 (9th Cir. 1988)). When a treating or examining physician’s opinion is contradicted, the 17 opinion can be rejected “for specific and legitimate reasons that are supported by substantial 18 evidence in the record.” Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 19 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). The ALJ can 20 accomplish this by “setting out a detailed and thorough summary of the facts and conflicting 21 clinical evidence, stating his interpretation thereof, and making findings.” Reddick v. Chater, 157 22 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -6 1 1. Medical Evidence as a Whole 2 Plaintiff maintains the ALJ erred in his treatment of the medical evidence as a whole. 3 Dkt. 13, pp. 3-8. 4 The ALJ “need not discuss all evidence presented.” Vincent ex rel. Vincent v. Heckler, 5 739 F.3d 1393, 1394-95 (9th Cir. 1984). However, the ALJ “may not reject ‘significant 6 probative evidence’ without explanation.” Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 7 1995) (quoting Vincent, 739 F.2d at 1395). The “ALJ’s written decision must state reasons for 8 disregarding [such] evidence.” Id. at 571. 9 In his Opening Brief, Plaintiff detailed the medical evidence from Dr. James B. Lee, 10 M.D., Dr. Keiko K. Howard, D.O., Dr. Alma Deleon Glamzi, M.D., Dr. Joseph W. Regimbal, 11 M.D., as well as evidence from Ms. Stephanie Berger, P.T. Dkt. 13, pp. 3-8. Plaintiff thereafter 12 asserted the ALJ erred in his treatment of this evidence because it “shows [Plainitff] has multiple 13 sclerosis, and it also supports his testimony about the symptoms he has been experiencing as a 14 result of this impairment.” Id. p. 6. Yet the ALJ found Plaintiff’s multiple sclerosis was a severe 15 impairment at Step Two. See AR 25. Moreover, Plaintiff’s argument that this medical evidence 16 supports Plaintiff’s subjective symptom testimony is its own distinct argument, which the Court 17 addresses in Section III of this Order. 18 Notably, despite his detailed summary of this evidence, Plaintiff failed to allege the ALJ 19 erred in his treatment of Drs. Lee, Howard, Glamzi, Regimbal, or Ms. Berger. See Dkt. 13, pp. at 20 3-8. By failing to explain how the ALJ erred with regard to each particular opinion, Plaintiff 21 failed to show how the ALJ’s alleged mistreatment of this evidence was consequential to the 22 RFC and the ultimate disability determination. Therefore, because Plaintiff failed to explain 23 how the ALJ erred with respect to each particular opinion, the Court declines to consider 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -7 1 whether the ALJ erred regarding Drs. Lee, Howard, Glamzi, Regimbal, or Ms. Berger. 2 See 2 Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2007) (citation and 3 internal quotation omitted) (the court will not “ordinarily will not consider matters on appeal that 4 are not specifically and distinctly argued in an appellant’s opening brief”); see also Ludwig v. 5 Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012) (“The burden is on the party claiming error to 6 demonstrate not only the error, but also that it affected his ‘substantial rights.’”). 7 2. New Evidence Presented to Appeals Council 8 Plaintiff next contends the ALJ’s decision was not based on substantial evidence in light 9 of new evidence that was submitted to the Appeals Council. Dkt. 13, pp. 6-7. 10 When the Appeals Council considers new evidence in denying review of the ALJ’s 11 decision, “the new evidence is part of the administrative record.” Brewes v. Comm’r of Soc. Sec. 12 Admin., 682 F.3d 1157, 1159-60, 1162-63 (9th Cir. 2012). The district court must therefore 13 consider this new evidence when determining whether the Commissioner’s decision is supported 14 by substantial evidence and free of legal error. Id.; see also Taylor v. Comm’r of Soc. Sec. 15 Admin., 659 F.3d 1228, 1232 (9th Cir. 2011). 16 In addition, harmless error principles apply in the Social Security context. Molina v. 17 Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless if it is not prejudicial to the 18 claimant or “inconsequential” to the ALJ’s “ultimate nondisability determination.” Stout v. 19 Comm’r of Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); see Molina, 674 F.3d at 1115. 20 The determination as to whether an error is harmless requires a “case-specific application of 21 judgment” by the reviewing court, based on an examination of the record made “‘without regard 22 23 2 The only physician that Plaintiff specifically argued the ALJ treated improperly was Dr. St. Louis. Dkt. 24 13, pp. 7-8. The Court therefore considers the ALJ’s treatment of Dr. St. Louis in this Order, below. ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -8 1 to errors’ that do not affect the parties’ ‘substantial rights.’” Molina, 674 F.3d at 1118-1119 2 (quoting Shinseki v. Sanders, 556 U.S. 396, 407 (2009) (quoting 28 U.S.C. § 2111)). 3 The ALJ held the hearing on June 9, 2015. AR 42-69. On June 10, 2015, Plaintiff had an 4 MRI of his cervical spine and thoracic spine. AR 683-88. Plaintiff submitted the MRI results 5 Appeals Council, thereby making the results part of the administrative record. See AR 2, 5; 6 Brewes, 682 F.3d at 1159-60. 7 Plaintiff maintains, citing Brewes, this new evidence shows he “is more limited than he 8 was found to be by the ALJ” and thus, “the ALJ’s decision is not supported by substantial 9 evidence.” Dkt. 13, pp. 6-7. Despite Plaintiff’s assertion, this new evidence contained “normal” 10 results. See, e.g., AR 686-87 (cervical spine alignment normal; “no gross abnormalities” in 11 paraspinal soft tissues; “normal” disc heights and signals in cervical spine; thoracic spinal 12 alignment normal). Furthermore, any abnormal results were similar to MRI results from October 13 2014 that were already in the administrative record. See id. (T2 hyperintense lesions were 14 “similar to prior” MRI from October 2014; “no new cord lesions” compared to previous MRI; 15 mid thoracic disc degeneration “similar to prior” MRI). 16 Accordingly, because this new evidence contained no new results, this evidence was 17 inconsequential to the ultimate disability determination and does not require reversal. See 18 Molina, 674 F.3d at 1115. 19 3. Dr. St. Louis 20 Plaintiff maintains the ALJ erred in giving great weight to the opinion of non-examining 21 physician, Dr. St. Louis. Dkt. 13, pp. 7-8. 22 A non-examining physician’s opinion may constitute substantial evidence when it is 23 consistent with other independent evidence in the record. Tonapetyan v. Halter, 242 F.3d 1144, 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS -9 1 1149 (9th Cir. 2001). As such, an ALJ generally does not err in giving great weight to a non2 examining physician when the physician’s opinion is consistent with the record. See Mitchell v. 3 Colvin, 642 Fed.Appx. 731, 732 (9th Cir. 2016). By contrast, a non-examining physician’s 4 opinion should not be given great weight when her opinion conflicts with other evidence in the 5 record. See, e.g., Wedge v. Astrue, 624 F.Supp.2d 1127, 1133 (C.D. Cal. 2008). 6 On March 12, 2014, Dr. St. Louis authored an opinion in which she found Plaintiff not 7 disabled. See AR 87-96, 97-106. Dr. St. Louis did not examine Plaintiff, and instead reviewed 8 reports and medical records to form her opinion. See AR 88-91, 98-101. Dr. St. Louis opined 9 Plaintiff could occasionally lift and/or carry up to ten pounds, frequently lift and/or carry up to 10 ten pounds, stand and/or walk for up to two hours, and sit for about six hours in an eight-hour 11 work day. AR 92, 102. In addition, Dr. St. Louis determined Plaintiff could occasionally climb 12 ramps and stairs, and could never climb ladders, ropes, or scaffolds. AR 92, 102. Dr. St. Louis 13 also opined Plaintiff could frequently kneel and crawl, and occasionally balance, stoop, and 14 crouch. AR 92, 102. Dr. St. Louis further found Plaintiff had limited ability to handle and finger, 15 and could reach feel in unlimited amounts. AR 93, 103. Moreover, Dr. St. Louis stated Plaintiff 16 should avoid moderate exposure to extreme heat and concentrated exposure to humidity. AR 93, 17 103. Dr. St. Louis stated Plaintiff’s limitations were due to his multiple sclerosis. See AR 93-94, 18 103-104. 19 The ALJ summarized Dr. St. Louis’s report and then gave it “great weight,” stating: 20 [her opinions are] consistent with the medical record demonstrating physical exam findings generally within normal range, diagnostic testing and imagery showing no acute findings from [Plaintiff’s] multiple impairments, and symptoms well controlled with treatment. Furthermore, the record does not contain any persuasive opinion or other evidence that contradicts her conclusions. 21 22 23 AR 32-33. 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 10 1 Plaintiff argues the ALJ erred in giving great weight to Dr. St. Louis because “her 2 opinion is in fact inconsistent with the clinical findings and MRI imagery.” Dkt. 13, p. 7. 3 Plaintiff accurately asserts the record contains evidence of Plaintiff’s impaired gait and impaired 4 sensation on his right side, and the ALJ acknowledged this evidence in his decision. See AR 295 31. Nevertheless, as previously explained, the ALJ likewise accurately summarized medical 6 evidence showing Plaintiff’s normal muscle tests and motor strength. See AR 29-31. In addition, 7 Plaintiff acknowledges that no medical opinion in the record other than Dr. St. Louis’s opinion 8 contains “medical opinions regarding functional limitations.” Dkt. 13, p. 8. Thus, contrary to 9 Plaintiff’s assertion, no medical opinion directly contradicts Dr. St. Louis’s opinion with respect 10 to Plaintiff’s functional limitations. 11 Hence, in light of the medical record – which contains both notes of impairments as well 12 as notes of normal muscle tests and motor strength – the ALJ’s decision to give great weight to 13 Dr. St Louis’s opinion was supported by the record. See Matney v. Sullivan, 981 F.2d 1016, 1019 14 (9th Cir. 1992) (citations omitted) (“if the evidence can support either outcome, the court may 15 not substitute its judgment for that of the ALJ”); see also Tommasetti v. Astrue, 533 F.3d 1035, 16 1041 (9th Cir. 2008) (“the ALJ is the final arbiter with respect to resolving ambiguities in the 17 medical evidence”). The ALJ therefore did not err by giving great weight to Dr. St. Louis’s 18 opinion. 19 III. Whether the ALJ provided specific, clear and convincing reasons for finding Plaintiff’s subjective symptom testimony not fully supported. 20 Plaintiff argues the ALJ erred in his evaluation of Plaintiff’s subjective symptom 21 testimony. Dkt. 13, pp. 8-13. 22 To reject a claimant’s subjective complaints, the ALJ must provide “specific, cogent 23 reasons for the disbelief.” Lester, 81 F.3d at 834 (citation omitted). The ALJ “must identify what 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 11 1 testimony is not credible and what evidence undermines the claimant’s complaints.” Id.; see also 2 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Unless affirmative evidence shows the 3 claimant is malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be “clear 4 and convincing.” Lester, 81 F.2d at 834 (citation omitted). Questions of credibility are solely 5 within the ALJ’s control. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). The Court 6 should not “second-guess” this credibility determination. Allen v. Heckler, 749 F.2d 577, 580 7 (9th Cir. 1984). Moreover, the Court may not reverse a credibility determination where the 8 determination is based on contradictory or ambiguous evidence. Id. at 579. 9 In a Disability Report – Adult, Plaintiff reported his conditions cause him pain and he 10 stopped working because he was “[u]nable to do [the] required labor.” AR 229-30. Plaintiff 11 elaborated on this point at the hearing, explaining he was unable to work due to exhaustion, 12 fatigue, and clumsiness. AR 53-54. In addition, Plaintiff reported he is unable to type or write 13 due to numbness in his hands. AR 56-57. Furthermore, Plaintiff stated he struggles with walking 14 and requires the use of a walker. AR 57-58. Plaintiff said he suffers from lower back pain. AR 15 58. Plaintiff also reported he can lift up to ten pounds, stand four or five minutes before needing 16 to sit, and walk about seventy yards with the assistance of his walker. AR 33. Lastly, Plaintiff 17 said he can sit for about thirty minutes before needing to get up, and his fatigue makes him nap 18 for a quarter of the day. AR 66-67. 19 With respect to Plaintiff’s testimony, the ALJ found Plaintiff’s medically determinable 20 impairments could be reasonably expected to cause the alleged symptoms. AR 29. However, the 21 ALJ found Plaintiff’s testimony “concerning the intensity, persistence and limiting effects of 22 these symptoms [were] not fully credible.” AR 29. In particular, the ALJ discounted Plaintiff’s 23 testimony because (1) Plaintiff was not currently receiving physical therapy despite doctor 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 12 1 recommendations, which “suggests his symptoms are not as significantly limiting as he alleges,” 2 and (2) Plaintiff’s “allegations regarding the severity of his physical symptoms and limitations 3 are not fully supported by the objective clinical findings and observations contained in the 4 record.” AR 29. 5 First, the ALJ discounted Plaintiff’s subjective symptom testimony because Plaintiff was 6 not receiving prescribed physical therapy at the time of the hearing. AR 29. When assessing a 7 claimant’s subjective symptom testimony, an ALJ may consider “unexplained or inadequately 8 explained failure to seek treatment or to follow a prescribed course of treatment.” Smolen v. 9 Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (citations omitted). However, an ALJ “must not draw 10 any inferences about an individual’s symptoms and their functional effects from a failure to seek 11 or pursue regular medical treatment without first considering any explanations that the individual 12 may provide.” SSR 96-7p at *7 (1996); 3 see also Mitchell v. Colvin, 584 Fed.Appx. 309, 314 13 (9th Cir. 2014) (citing SSR 96-7p) (ALJ erred, in part, by failing to ask plaintiff about “perceived 14 inconsistencies in following recommended treatment” even though the ALJ “relied on those 15 lapses to discredit him”). 16 At the hearing, Plaintiff testified that he recently stopped going to physical therapy 17 because he was receiving Tysabri, an infusion drug which lowers his immune system, and as 18 such, his doctors recommended that he not leave his house. AR 59-60. The ALJ failed to 19 mention this explanation in his decision. See AR 29, 30. Because the ALJ’s decision does not 20 reflect that he considered why Plaintiff stopped attending physical therapy, the ALJ erred in 21 discounting Plaintiff’s testimony for this reason. See SSR 96-7p at *7; see also Mitchell, 584 22 Fed.Appx. at 314 (citing SSR 96-7p) (a claimant’s explanation for failure to follow prescribed 23 3 Although SSR 96-7p was superseded after the ALJ’s hearing, the Court applies SSR 96-7p in this case 24 because it was in effect at the time of the ALJ’s decision. ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 13 1 treatment is relevant when an ALJ discredits the claimant’s testimony for failure to follow 2 treatment). 3 Second, the ALJ discounted Plaintiff’s subjective symptom testimony because he found 4 Plaintiff’s testimony not supported by the objective medical evidence. See AR 29. A claimant’s 5 pain testimony cannot be rejected “solely because the degree of pain alleged is not supported by 6 objective medical evidence.” Orteza v. Shalala, 50 F.3d 748, 749-50 (9th Cir. 1995) (quoting 7 Bunnell v. Sullivan, 947 F.3d 341, 346-47) (9th Cir. 1991) (en banc)). This is true for a claimant’s 8 other subjective complaints. Byrnes v. Shalala, 60 F.3d 639, 641-42 (9th Cir. 1995) (holding 9 that, although Bunnell was couched in terms of subjective complaints of pain, its reasoning 10 extends to non-pain complaints). Here, the ALJ erred by discounting Plaintiff’s testimony in 11 light of the objective medical evidence. See AR 29. Because this is the only remaining reason for 12 discounting Plaintiff’s testimony, the ALJ did not provide legally sufficient reasons for 13 discounting Plaintiff’s testimony. 14 For the above stated reasons, the ALJ failed to provide clear and convincing reasons for 15 discounting Plaintiff’s subjective symptom testimony. Had the ALJ properly considered 16 Plaintiff’s subjective symptom testimony, the RFC and hypothetical questions posed to the 17 vocational expert (“VE”) may have included additional limitations. For example, the RFC and 18 hypothetical questions may have included the limitations that Plaintiff cannot type or write, can 19 stand for four or five minutes before needing to sit, and can sit for thirty minutes before needing 20 to stand. The RFC and hypothetical questions did not contain these limitations. Therefore, 21 22 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 14 1 because the ultimate disability determination may have changed, the ALJ’s error is not harmless 2 and requires reversal. 4 3 IV. Whether the ALJ provided germane reasons to discount the lay witness testimony. 4 Plaintiff asserts the ALJ erred in his treatment of the lay witness evidence. Dkt. 13, pp. 5 15-17. 6 Lay testimony regarding a claimant’s symptoms “is competent evidence that an ALJ must 7 take into account.” Lewis, 236 F.3d at 511. As such, lay witness testimony “cannot be 8 disregarded without comment.” Van Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996) 9 (citations omitted). To reject lay witness testimony, the ALJ must “expressly” disregard such 10 testimony and provide “reasons germane to each witness for doing so.” Lewis, 236 F.3d at 511. 11 In rejecting lay testimony, the ALJ need not cite the specific record as long as “arguably 12 germane reasons” for dismissing the testimony are noted, even if the ALJ does “not clearly link 13 his determination to those reasons,” and substantial evidence supports the ALJ’s decision. Id. at 14 512. 15 Krista K. Wyle, who lives with and provides care for Plaintiff, submitted a third party 16 function report on Plaintiff’s behalf. AR 239-46. Ms. Wyle reported Plaintiff is unable to work 17 because of “limited physical ability due to multiple sclerosis.” AR 239. Ms. Wyle stated 18 Plaintiff’s conditions make him fairly limited in his physical abilities and stamina. AR 240. She 19 reported Plaintiff helps feed and care for her cats, although she assists him in the pet care. AR 20 240. In addition, Ms. Wyle said Plaintiff’s conditions affect his ability to bathe, as he is “more 21 22 4 The Court notes the Social Security Administration has changed the way it analyzes a claimant’s 23 credibility since the ALJ issued his decision in this case. See SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016); 2016 WL 1237954 (Mar. 24, 2016). On remand, the ALJ is directed to apply SSR 16-3p when evaluating Plaintiff’s 24 subjective testimony. ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 15 1 off balance” and “has fallen a few times in recent weeks/months.” AR 240. She said Plaintiff has 2 a harder time shaving than he used to because of “decreased ability for fine motor control.” AR 3 240. With respect to Plaintiff’s ability to prepare meals, Ms. Wyle reported Plaintiff “can still 4 cook” but “needs assistance with things like chopping or removing things from the oven.” AR 5 241. She stated Plaintiff prepares meals “daily” when he is not fatigued, although he is “slower” 6 and “clumsier” than he used to be. AR 241. Furthermore, Ms. Wyle stated Plaintiff is able to 7 help with cleaning and laundry, though he is “slower than in the past” and needs “assistance 8 carrying things” due to lower strength and stamina. AR 241. Ms. Wyle moreover reported that 9 while Plaintiff is capable of driving, he does not feel secure or comfortable driving due to his 10 multiple sclerosis. AR 242. 11 Ms. Wyle said Plaintiff is able to shop in stores for food and household supplies “when 12 needed,” but he is slow in doing so. AR 242. Additionally, Ms. Wyle reported Plaintiff is “less 13 prone to doing” his hobbies or socializing because he requires more sleep and gets more fatigued 14 than he used to. AR 243-44. She further stated Plaintiff’s condition affects his ability to lift, 15 squat, bend, stand, reach, walk, sit, kneel, climb stairs, and use his hands due to poor balance, 16 stamina, dexterity, and strength since his multiple sclerosis onset. AR 244. Ms. Wyle said 17 Plaintiff is able to walk “short/mid distances.” AR 244. 18 The ALJ gave “partial weight” to Ms. Wyle’s opinion, 5 stating: 19 [T]he undersigned finds Ms. Wyle’s statements generally credible. She lives with the claimant and is able to observe the claimant’s daily activities. Moreover, her statements are generally consistent with the medical evidence of record which indicates that 20 21 22 23 24 5 In the paragraph considering Ms. Wyle’s opinion, the ALJ wrote “Ashely Dixon’s opinion has been assigned partial weight.” AR 33 (emphasis added). However, there does not appear to be anyone named Ashley Dixon in this case. Given that the ALJ made this assertion in the paragraph regarding Ms. Wyle’s opinion, the Court presumes this name was a typographical error and the ALJ intended to give partial weight to Ms. Wyle’s opinion. Plaintiff also did not mention or take issue with this error. See Dkt. 13. ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 16 1 although [he] has pain, numbness, and fatigue associated with MS, he still remains able to perform activities of daily living. 2 AR 33. The ALJ found Ms. Wyle’s testimony “generally credible” given that she lives with 3 Plaintiff, observes his daily activities, and her statements were consistent with the medical 4 record. AR 33. Hence, while the ALJ gave “partial weight” to Ms. Wyle’s opinion, he did not 5 state why her opinion was worthy of only partial weight. AR 33. The ALJ therefore erred, as he 6 failed to give any reason for discounting Ms. Wyle’s testimony. See Van Nguyen, 100 F.3d at 7 1467 (lay testimony “cannot be disregarded without comment”). 8 The lay witness testimony described limitations beyond those in Plaintiff’s RFC and the 9 hypothetical questions posed to the VE. For example, Ms. Wyle reported Plaintiff suffers from 10 fatigue and has decreased ability for fine motor control and dexterity. The RFC and hypothetical 11 questions posed to the VE did not contain limitations reflecting these restrictions. Because the 12 ultimate disability determination may have changed, the ALJ’s error was not harmless and 13 requires reversal. 14 V. 15 Whether the RFC and the ALJ’s Step Four findings were supported by substantial evidence. 16 Additionally, Plaintiff argues the RFC assessed by the ALJ and the ALJ’s Step Four 17 findings were “legally erroneous and not supported by substantial evidence.” Dkt. 13, p. 18. 18 The ALJ committed harmful error by failing to properly consider Plaintiff’s subjective 19 symptom testimony and the lay witness testimony. See Sections III & IV, supra. Accordingly, 20 the ALJ must reassess Plaintiff’s RFC on remand. See SSR 96-8p, 1996 WL 374184 (1996) (an 21 RFC “must always consider and address medical source opinions”); Valentine v. Comm’r of Soc. 22 Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (“an RFC that fails to take into account a 23 claimant’s limitations is defective”). As the ALJ must reassess Plaintiff’s RFC, he must also re24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 17 1 evaluate the findings at Step Four (and, if necessary, Step Five) in light of the RFC. See Watson 2 v. Astrue, 2010 WL 4269545, at *5 (C.D. Cal. Oct. 22, 2010) (finding the RFC and hypothetical 3 questions posed to the VE defective when the ALJ did not properly consider two physicians’ 4 findings). 5 VI. 6 Lastly, Plaintiff requests the Court remand his claim for an award of benefits. Dkt. 13, pp. Whether the case should be remanded for an award of benefits. 7 18-19. 8 The Court may remand a case “either for additional evidence and findings or to award 9 benefits.” Smolen, 80 F.3d at 1292. Generally, when the Court reverses an ALJ’s decision, “the 10 proper course, except in rare circumstances, is to remand to the agency for additional 11 investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citations 12 omitted). However, the Ninth Circuit created a “test for determining when evidence should be 13 credited and an immediate award of benefits directed.” Harman v. Apfel, 211 F.3d 1172, 1178 14 (9th Cir. 2000). Specifically, benefits should be awarded where: 15 16 17 (1) the ALJ has failed to provide legally sufficient reasons for rejecting [the claimant’s] evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. 18 Smolen, 80 F.3d at 1292. 19 The Court has determined, on remand, the ALJ must re-evaluate this entire matter 20 properly considering Plaintiff’s subjective symptom testimony and the lay witness testimony. 21 Therefore, remand for further administrative proceedings is appropriate. 22 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 18 1 2 CONCLUSION Based on the foregoing reasons, the Court hereby finds the ALJ improperly concluded 3 Plaintiff was not disabled. Accordingly, Defendant’s decision to deny benefits is reversed and 4 this matter is remanded for further administrative proceedings in accordance with the findings 5 contained herein. 6 Dated this 13th day of December, 2017. A 7 8 David W. Christel United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER REVERSING AND REMANDING DEFENDANT’S DECISION TO DENY BENEFITS - 19
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