Opinion
CV-21-00447-TUC-JGZ (LCK)
02-21-2023
Dionne Majalca-Williams, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
HONORABLE LYNNETTE C. KIMMINS, UNITED STATES MAGISTRATE JUDGE
Plaintiff Dionne Majalca-Williams filed this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security. (Doc. 1.) Before the Court are Plaintiff's Opening Brief, Defendant's Responsive Brief, and Plaintiff's Reply. (Docs. 19, 23, 24.) Pursuant to the Rules of Practice of the Court, this matter was referred to Magistrate Judge Kimmins for Report and Recommendation. Based on the pleadings and administrative record, the Magistrate Judge recommends the District Court, after its independent review, remand for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff filed an application for Disability Insurance Benefits (DIB) in October 2019, alleging disability from February 3, 2018. (Administrative Record (AR) 228.) That was the date she quit her job as a sales representative for a weight loss company after twenty years, because she could not maintain the speed required by her supervisor. (AR 68-69, 293-94.) She was born in September 1974, making her 43 years of age at the onset date of her alleged disability. (Id.) Plaintiff's application was denied upon initial review (AR 108-24) and on reconsideration (AR 125-41).
Hearings were held on February 18 and May 19, 2021 (AR 64-107), after which the ALJ found that Plaintiff was not disabled (AR 37-57). The ALJ determined Plaintiff had severe impairments of osteoarthritis, Wegner's Granulomatosis, obesity, PTSD, and anxiety disorder. (AR 40.) The ALJ concluded Plaintiff had the Residual Functional Capacity (RFC) to perform light work subject to the following limitations: standing 2 hours, walking 1 hour, and sitting up to 5 hours; occasionally climbing stairs, stooping, kneeling, crouching, or crawling; occasional exposure to temperature extremes, humidity, wetness, dust, fumes, and smoke; frequently reaching in all directions bilaterally and operating bilateral foot controls; never climbing ladders; no exposure to heights or moving machinery; understanding, remembering, and carrying out only simple instructions; and no more than occasional interaction with the public. (AR 45.) The ALJ concluded at Step Five, based on the testimony of a vocational expert (VE), that Plaintiff could perform work that exists in significant numbers in the national economy, such as office helper, mail clerk, and photocopy machine operator. (AR 55-56.) The Appeals Council denied review of the ALJ's decision. (AR 1.)
Medical expert Dr. Dhiman testified that Plaintiff had two medically determinable impairments, Wegener's granulomatosis and osteoarthritis. (AR 94.) The ALJ made the same finding. However, the Court did not identify osteoarthritis as a diagnosed impairment in the record.
STANDARD OF REVIEW
The Commissioner employs a five-step sequential process to evaluate DIB claims. 20 C.F.R. § 404.1520; see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To establish disability the claimant bears the burden of showing she (1) is not working; (2) has a severe physical or mental impairment; (3) the impairment meets or equals the requirements of a listed impairment; and (4) claimant's RFC precludes her from performing her past work. 20 C.F.R. § 404.1520(a)(4). At Step Five, the burden shifts to the Commissioner to show that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant "disabled" or "not disabled" at any point in the five-step process, she does not proceed to the next step. 20 C.F.R. § 404.1520(a)(4).
"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "more than a mere scintilla but less than a preponderance." Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to deny benefits only "when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is so because the ALJ "and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ." Matney, 981 F.2d at 1019 (quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner's decision, however, "cannot be affirmed simply by isolating a specific quantum of supporting evidence." Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence that supports as well as detracts from the Commissioner's conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).
DISCUSSION
Plaintiff alleges the ALJ committed three errors: (1) the ALJ failed to provide clear and convincing reasons for rejecting her symptom testimony; (2) the ALJ failed to find fibromyalgia was a severe impairment at Step Two; and (3) the ALJ improperly analyzed opinion evidence. Plaintiff clarified that she is challenging the ALJ's findings only as to her physical limitations in the instant appeal (Doc. 19 at 3); therefore, the Court does not discuss the ALJ's findings regarding her psychological impairments.
Symptom Testimony
In general, "questions of credibility and resolution of conflicts in the testimony are functions solely" for the ALJ. Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007) (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)). However, "[w]hile an ALJ may certainly find testimony not credible and disregard it . . . [the court] cannot affirm such a determination unless it is supported by specific findings and reasoning." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884-85 (9th Cir. 2006); Bunnell v. Sullivan, 947 F.2d 341, 345346 (9th Cir. 1995) (requiring specificity to ensure a reviewing court the ALJ did not arbitrarily reject a claimant's subjective testimony); SSR 96-7p. "To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis." Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007).
Initially, "the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment 'which could reasonably be expected to produce the pain or other symptoms alleged.'" Id. at 1036 (quoting Bunnell, 947 F.2d at 344). The ALJ found Plaintiff had satisfied part one of the test by proving impairments that could produce the symptoms alleged. (AR 46.) Next, if "there is no affirmative evidence of malingering, the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so." Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen v. Chater, 80 F.3d 1273, 1281, 1283-84 (9th Cir. 1996)). Here, the ALJ did not make a finding of malingering. Therefore, to support her discounting of Plaintiff's assertions regarding the severity of her symptoms, the ALJ had to provide clear and convincing, specific reasons. See Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014); Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2008) (quoting Lingenfelter, 504 F.3d at 1036).
At the February 2021 hearing, Plaintiff reported that she got up in the morning between 6 and 8 a.m. and was able to dress and bathe herself. (AR 70.) She reported doing light chores, including laundry, but very little cooking. (Id.) When she did laundry or cleaning, it was a little bit "here and there." (AR 78-79.) If she over-exerted, she would "pay for it" with increased pain and fatigue. (AR 79.) She did not grocery shop, mop, sweep, garden, or do yardwork. (AR 70.) She had two cats and a dog for whom she provided some of the care. (AR 70-71.) She would spend a few hours a day watching TV and using a computer. (AR 71.) She drove infrequently up to half an hour to doctor appointments. (Id.) The only outings she identified were rare visits to an aunt that lived locally. (AR 71-72.) She slept four to six hours per night with interruptions. (AR 72.) She was on a biologic to suppress her immune system, so she was prone to frequent infections. (AR 74.) She reported feeling like "crap." (AR 75, 77.) She experienced severe fatigue, flu-like symptoms, dizziness, nausea, and swollen joints. (AR 75.) She most commonly experienced fatigue and widespread bodily pain, with other symptoms daily or weekly. (Id.) She experienced pain in her neck, shoulders, hips, knees, ankles, heels, and elbows, and a few times per week she felt achy in her whole body. (AR 76-77.) She thought she could lift up to five pounds. (AR 76.) She testified that she could walk for up to 10 minutes, but could not stand for long, and sitting and laying down could be difficult due to pain that caused her to change positions frequently. (AR 75-76, 80.) Her daily pain with medication was a 6-8 out of 10. (AR 77.) She also stated that her chronic pain and fatigue caused depression. (AR 78.) At the supplemental hearing, in May 2021, Plaintiff testified that four or more days per month she felt so bad that she would be unable to go to a workplace. (AR 104-05.)
The ALJ stated that Plaintiff's statements about the effect of her symptoms "were not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision." (AR 46.) The ALJ cited the "overall treatment records." (Id.) The ALJ also stated that the objective medical evidence revealed normal ambulation, full strength, full range of motion, and no neurological deficit, which supported the RFC. (Id.) The ALJ then summarized some of Plaintiff's medical records. (AR 46-50.) Subsequently, the ALJ summarized her discussion of the treatment records as follows:
history of Wegener's granulomatosis with polyangiitis and osteoarthritis. Treatment notes indicated co-occurring chronic pain, chronic bronchitis, and stage II kidney disease as a result of her Wegener's granulomatosis. Ms. Majalca-Williams reported chronic fatigue and all over body pain, while examination showed foot tenderness with observed normal gait, intact sensation, full strength, and range of motion. The overall treatment records support the residual functional capacity of a reduced range of light exertional activity with postural, manipulative, and environmental limitations.
(AR 48.) The ALJ also stated that it was reasonable Plaintiff had experienced some limitations due to her physical impairments, and the ALJ granted her allegations every reasonable benefit of the doubt. (AR 50.) She concluded that, "however, any allegation of greater limitation [than found in the RFC] simply was not supported by the overall treatment records or examination findings." (Id.) The ALJ ultimately stated that the RFC was supported by the "overall treatment records, examination findings, hearing testimony, and medical expert testimony," and that the ALJ considered "all the claimant's allegations, the findings set forth above and the overall treating history" in finding the RFC. (AR 54.)
"The ALJ must specifically identify what testimony is credible and what testimony undermines the claimant's complaints." Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). The ALJ failed to comply with this directive. The ALJ offered a conclusory finding that the evidence as a whole supported the RFC but did not support Plaintiff's testimony to the extent it was more restrictive than the RFC. The ALJ's opinion discussed substantial clinical evidence; however, she did not link that evidence to Plaintiff's symptom testimony. (AR 46-50.) Further, if the objective medical evidence fully explained a claimant's symptoms, then credibility would be irrelevant. Credibility factors into the ALJ's decision only when the claimant's stated symptoms are not substantiated by the objective medical evidence. SSR 16-3p. Thus, it is error for an ALJ to discount symptom testimony solely because a claimant's symptoms are not substantiated by the medical evidence. Id.; Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). The ALJ did not identify any other basis to discount Plaintiff's symptom testimony.
Defendant argues the ALJ provided a sufficient basis to discount Plaintiff's symptom testimony based on Plaintiff's improvement with treatment and limited mental health treatment (in addition to inconsistencies with the objective medical evidence). The Court disagrees. The ALJ did note several times in her evaluation of the medical evidence that Plaintiff was doing well with treatment. Each of the ALJ's references to improvement related to Plaintiff's Wegener's granulomatosis and treatment with Rituxan, after which the disease was stable and/or in remission with the symptoms improved or resolved. (AR 4648 (citing AR 441, 492, 573, 577, 581, 1494, 1498, 1500).) If clearly stated by the ALJ, this could be a clear and convincing reason to discount Plaintiff's symptom testimony that relates to the improved impairment. However, the ALJ did not state that Plaintiff's improvement with treatment was inconsistent with any particular symptom testimony. See Brown-Hunter v. Colvin, 806 F.3d 487, 494-95 (9th Cir. 2015) (finding error because ALJ did not identify which symptom testimony was not credible and what evidence contradicted specific testimony). Further, as noted several times in the record, Plaintiff's reports of substantial pain and fatigue were not attributed to Wegener's granulomatosis by her doctors. (AR 573, 574, 1414, 1500.) The medical expert, Dr. Dhiman, also testified that fatigue was a common side effect of treatment of Rituxan. (AR 99-100.) For these reasons, the Court finds improvement with treatment was not a clear and convincing reason to discount Plaintiff's symptom testimony as a whole, particularly as to pain and fatigue.
Next, Defendant contends the ALJ determined that Plaintiff's failure to pursue mental health treatment undermined her symptom testimony. If clearly stated by the ALJ, this, too, could be a clear and convincing reason to discount Plaintiff's symptom testimony related to her mental health impairments. SSR 16-3p. However, the ALJ did not connect limited treatment to inconsistency with any particular symptom testimony. See BrownHunter, 806 F.3d at 494-95 (finding error because ALJ did not identify which symptom testimony was not credible and what evidence contradicted specific testimony). Further, Plaintiff asserted that she is not appealing the ALJ's handling of her mental health impairments and symptoms.
In addition, an ALJ may not find symptom testimony inconsistent with record evidence based on a failure to seek treatment, without considering reasons for not obtaining the treatment. SSR 16-3p. The ALJ failed to do that. At the hearing, Plaintiff acknowledged that she attended 8 EMDR appointments, the extent of her insurance coverage. (AR 72.) The ALJ did not ask if there was a reason that she had not sought other mental health care. (Id.) There are several references in the record to Plaintiff not pursuing treatment with a mental health specialist due to a lack of insurance and or financial limitations. (AR 1414.) In October 2020, after obtaining insurance following a period without it, Plaintiff reported to her rheumatologist that she had been unable to find a psychotherapist. (AR 808.) In March 2021, Drs. Howe and Whittman noted that Plaintiff had poor financial ability for recommended psychiatric and counseling help. (AR 1499, 1500.) Additionally, Plaintiff informed Dr. Howe that the reason she did not want to take an antidepressant was because she previously experienced a hard time weaning off clonazepam. (AR 574.) Despite her opinion on antidepressants, Plaintiff did try several medications. She used alprazolam for anxiety connected with the Rituxan infusions. (AR 573.) At different times, she also tried duloxetine and venlafaxine, neither of which she could tolerate. (AR 556, 573, 1501.) Based on all of the above, failure to seek mental health treatment was not a clear and convincing reason to discount Plaintiff's symptom testimony.
The ALJ's failure to provide clear and convincing reasons for discounting Plaintiff's symptom testimony was error requiring remand.
Step Two, Fibromyalgia
Plaintiff alleges the ALJ erred in not finding fibromyalgia to be a severe impairment at Step Two. Defendant argues that, because the ALJ decided Step Two in Plaintiff's favor, Plaintiff cannot have been prejudiced by the ALJ not including fibromyalgia as a severe impairment. This is because an ALJ must consider all impairments, even those she did not find to be severe, when crafting the RFC. See Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017). Here, however, the ALJ determined that fibromyalgia was not a medically determinable impairment (MDI) at Step Two, not merely that it was not a severe impairment. For that reason, the ALJ did not consider that Plaintiff had any limitations imposed by fibromyalgia; therefore, the alleged error is not necessarily harmless. See Amanda Carolina C. v. Kijakazi, No. CV 20-6940-JPR, 2022 WL 16847784, at *7 (C.D. Cal. May 4, 2022).
Defendant also argues that any error was harmless because the ALJ considered Plaintiff's pain throughout her decision. (Doc. 23 at 12.) This argument is contrary to Defendant's argument on the prior page, that the ALJ properly discounted Plaintiff's pain testimony. (Id. at 11.) Although the ALJ acknowledged Plaintiff's reports of widespread pain and fatigue, she noted that those symptoms were not consistent with the stable status of Plaintiffs Wegener's disease. (AR 47, 48.) Because the ALJ did not fully credit Plaintiff's testimony regarding pain and fatigue, her failure to find fibromyalgia to be an MDI was not clearly harmless.
After listing the impairments that she determined were severe, the ALJ discussed why she did not find fibromyalgia to be an MDI. (AR 40.) She referenced SSR 12-2p, which sets forth the Commissioner's guidance on the evidence necessary to establish fibromyalgia and how an ALJ should evaluate that impairment. SSR 12-2p provides that an ALJ may find the MDI of fibromyalgia if it has been diagnosed by a physician with supporting evidence of the following three requirements: (1) a history of widespread pain; (2) "evidence that other disorders that could cause the symptoms or signs were excluded"; and (3) either (a) 11 positive tender points on physical examination, or (b) "repeated manifestations of six or more FM symptoms, signs, or co-occurring conditions." SSR 122p (II)(A) & (B). The symptoms, signs, or co-occurring conditions that qualify are: fatigue or tiredness, cognitive or memory problems, waking unrefreshed, depression, anxiety disorder, irritable bowel syndrome, muscle pain, muscle weakness, headache, pain or cramps in the abdomen, numbness or tingling, dizziness, insomnia, constipation, pain in the upper abdomen, nausea, nervousness, chest pain, blurred vision, fever, diarrhea, dry mouth, itching, wheezing, Raynaud's phenomenon, hives or welts, ringing in the ears, vomiting, heartburn, oral ulcers, loss or change of taste, seizures, dry eyes, shortness of breath, loss of appetite, rash, sun sensitivity, hearing difficulties, easy bruising, hair loss, frequent urination, bladder spasms, chronic fatigue syndrome, irritable bladder syndrome, interstitial cystitis, temporomandibular joint disorder, gastroesophageal reflux disorder, migraine, or restless leg syndrome. SSR 12-2p (II)(B)(2) and notes 9, 10. The ALJ did not find an absence of a fibromyalgia diagnosis or that Plaintiff did not have a history of widespread pain. Rather, the ALJ found there was no "tender point examination," and "no evidence that other disorders/conditions had been ruled out, or that claimant had 6 or more of the fibromyalgia signs or co-occurring symptoms." (AR 40.)
SSR 12-2p requires a history of widespread pain, in all quadrants of the body, and axial skeletal pain. Defendant argues that Plaintiff did not cite records discussing axial skeletal pain. The record contains numerous references to neck and back pain. (AR 557, 570, 624, 630, 1030.) Defendant also argues that the ALJ discounted Plaintiff's subjective complaints of pain. The Court found the ALJ erred in rejecting Plaintiff's symptom testimony. Further, doctors verified widespread tenderness upon examination. (AR 558, 571576 625 630 697 1502)
Plaintiff contends there is not substantial evidence to support the ALJ's finding that fibromyalgia did not qualify as an MDI because she met criteria 1, 2, and 3(b). Although rheumatologist Dr. Howe noted myalgia in a fibromyalgia pattern, the ALJ was correct that there is no record of a tender point examination. However, as discussed below, there is record evidence that more than one doctor identified fibromyalgia as the only explanation for Plaintiff's widespread pain and fatigue. In fact, the ALJ cited a record in which a podiatrist noted that Plaintiff's rheumatologist and primary care provider had ruled out other major causes for Plaintiff's pain. The ALJ did not, however, acknowledge that portion of the record. See infra p. 11 and note 3.
There is substantial record evidence relevant to an evaluation of whether fibromyalgia qualified as an MDI, none of which the ALJ discussed at Step Two (or at any point). On October 24, 2017, March 30, 2018, and September 13, 2018, Dr. Howe diagnosed Plaintiff with Myalgia, multiple sites, "in a pattern consistent with fibromyalgia." (AR 573, 581, 589.) In September 2018, Dr. Howe described myalgia as "her disabling symptom." (AR 573.) In November 2018, Dr. Howe noted widespread soft tissue tenderness in a pattern consistent with fibromyalgia and marked hyperesthesia. (AR 570.) On November 13, 2018, and August 5, 2019, Dr. Howe stated, "[t]his must be fibromyalgia, there is no other tenable explanation." (AR 556, 569.) At the November appointment, Dr. Howe prescribed Gabapentin for Plaintiff's fibrosis symptoms, which the doctor described as "prominent." (AR 569.) In August 2019, the doctor went on to state that she found Plaintiff to be disabled, not because of the Wegener's or fibromyalgia, but the combination of the two along with anxiety. (AR 556.) Dr. Howe documented a discussion with Plaintiff about treatments for fibromyalgia and prescribed venlafaxine. (AR 556-57.) In October 2020, Dr. Howe diagnosed Myalgia, multiple sites, and described it as severe, widespread, "[s]uspect fibromyalgia equivalent." (AR 807.) The doctor also noted that the moderate to severe persistent pain and fatigue was unresponsive to treatment. (Id.) In March 2021, Dr. Howe again noted that he suspected Plaintiff's widespread arthralgias and myalgias to be fibromyalgia or an equivalent. (AR 1500-01.)
In November 2018, nephrologist Dr. Whittman noted "some fibromyalgia like symptoms." (AR 436.) In October 2020, a podiatrist documented multiple symmetric painful points on Plaintiff's feet and ankles and stated he thought it was fibromyalgia (and/or a side effect of vasculitis medication); he noted that Plaintiff's rheumatologist and primary care doctor had ruled out other major causes for her symptoms. (AR 697.) In March 2021, Dr. Whittman diagnosed Plaintiff with a chronic pain syndrome and stated that Plaintiff "potentially has fibromyalgia or another chronic pain condition." (AR 1499.)
The ALJ summarized this medical record solely as attributing the foot pain to vasculitis medications; she did not acknowledge the doctor's alternative attribution of the pain tn fibromyalgia (AR 48)
As summarized above, Plaintiff's doctors noted more than once that only fibromyalgia would explain Plaintiff's symptoms. In contrast, the ALJ did not mention that any doctors had discussed fibromyalgia, referring to it only as an allegation made by Plaintiff. Defendant contends that other disorders were not ruled out, because Plaintiff asserted that the severity of her limitations was due to a combination of impairments, Wegener's granulomatosis, fibromyalgia, and psychological. (Doc. 23 at 11-12.) "SSR 12- 2p does not require fibromyalgia to be a stand-alone impairment." Swales v. Saul, 852 Fed.Appx. 253, 255 (9th Cir. 2021).
As to the third factor, the record documents that Plaintiff had repeated manifestations of at least seven of the relevant symptoms, signs, or co-occurring conditions: fatigue (AR 426, 481, 495, 553, 557, 561, 566, 570, 573, 578, 582, 586, 618, 651, 678, 696, 706, 808, 812, 1411, 1502); depression (AR 358, 359, 363, 369, 582, 653, 1414, 1439); anxiety disorder (AR 360, 364, 383, 496, 557, 565, 573, 586, 653); muscle pain (AR 426, 553, 558, 570, 573, 630, 808, 812, 1411, 1502); muscle weakness (AR 421, 426, 431, 436, 706, 1412); dizziness (AR 75, 421, 426, 431, 436, 706, 812, 1412); and insomnia (AR 382, 569, 651, 808, 812, 1192,1411). Additionally, the ALJ determined that Plaintiff had a severe impairment of anxiety disorder. (AR 40.)
"At minimum, the ALJ must provide a more thorough explanation as to why the record does not support a fibromyalgia MDI." Swales, 852 Fed.Appx. at 255. And, because this case will be remanded on other grounds, the Court finds the ALJ should begin her analysis at Step Two, as subsequent evidence may bear on her determination regarding medically determinable impairments. There is substantial evidence in the record to support finding fibromyalgia as a severe impairment at Step Two. However, if the ALJ finds there is insufficient evidence to make that determination, she shall further develop the record. SSR 12-2p.
Opinion Evidence
The regulations governing cases filed after March 27, 2017, such as this one, state that an ALJ will consider all medical opinions and, at a minimum, articulate how she evaluated the opinions' supportability and consistency. 20 C.F.R. § 404.1520c(a) & (b). The regulation provides the following additional guidance regarding the factors of supportability and consistency:
(1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his orher medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.
(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.
20 C.F.R. § 404.1520c(c). "Even under the new regulations, an ALJ cannot reject an examining or treating doctor's opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence." Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022).
Plaintiff challenged the ALJ's handling of the opinions offered by Drs. D'Ambrosio, Howe, Whittman, and Dhiman. However, Plaintiff ultimately concluded she would not contest the ALJ's handling of the opinion by Dr. D'Ambrosio because it addresses only psychological issues. Next, Plaintiff concedes that the statement offered by Dr. Howe does not qualify as an opinion. She contends, however, that the ALJ erred in not considering Dr. Howe's statement as "other medical evidence" when evaluating Plaintiff's symptom testimony. The Court has determined this matter should be remanded based on the ALJ's error in evaluating Plaintiff's symptom testimony. Upon remand, the ALJ should consider Dr. Howe's statement in relation to Plaintiff's symptom testimony to the extent it has relevance to that assessment. SSR 16-3p ("Medical sources may offer diagnoses, prognoses, and opinions as well as statements and medical reports about an individual's history, treatment, responses to treatment, prior work record, efforts to work, daily activities, and other information concerning the intensity, persistence, and limiting effects of an individual's symptoms.")
Dr. Whittman, Plaintiff's treating nephrologist, listed as diagnoses Wegener's granulomatosis, hypertension, and proteinuria. (AR 1407.) He noted the prognosis was good, and Plaintiff did not have any limitations from a nephrology standpoint. (AR 140708.) He listed chronic nausea, flank pain, and dizziness as symptoms. (AR 1407.) He opined that her symptoms were constantly severe enough to interfere with attention and concentration for even simple tasks. (Id.) He stated that she would need to lie down, recline, or elevate her legs more than 1.5 hours per workday, and shift positions between sitting, standing, and walking every 20 minutes. (Id.) She could sit for 1 hour, but could stand or walk for no hours, per workday. (Id.) He determined she could occasionally lift up to 10 pounds but never more. (Id.) He opined that Plaintiff would need 4 more breaks than standard in a workday, and she would be absent 4 or more days per month. (AR 1408.)
The ALJ found the limitations identified by Dr. Whittman were not persuasive because they were not consistent with the treatment records. (AR 52.) The ALJ went on to cite, "for example":
[t]reatment notes indicated co-occurring chronic pain, recurrent bronchitis/sinusitis and stage II kidney disease as a result of her Wegener's franulomatosis. Ms. Majalca-Williams reported chronic fatigue and all over ody pain, while examination showed bilateral foot tenderness with observed normal gait, intact sensation, full strength, and range of motion.(Id.) As with the ALJ's evaluation of Plaintiff's symptom testimony, this finding is conclusory. The ALJ cited the same few treatments notes, some of Plaintiff's symptom reporting, and limited examination findings from an unidentified date(s). It is not apparent what evidence in those three categories of information undermine Dr. Whittman's opinion. Defendant contends the inconsistencies with Dr. Whittman's opinion, relied upon by the ALJ, are the objective findings of normal gait, intact sensation, and full strength and range of motion.However, in the same sentence that the ALJ cited those objective findings, she noted that the treatment records contain Plaintiff's reports of widespread pain and chronic fatigue. Plaintiff's reported symptoms are neither inconsistent with Dr. Whittman's opinion, nor are they necessarily inconsistent with normal gait, sensation, strength, and range of motion. Thus, contrary to Defendant's argument (Doc. 23 at 22), the ALJ's reasoning as to supportability and consistency is not reasonably discernable in the absence of further information.
Defendant also cited agency policy for her argument that if a person alleges significant limitations in her ability to walk or stand, one can expect the person to have atrophy or muscle wasting. (Doc. 23 at 23.) The ALJ did not rely upon this reason in her decision; therefore, the Court does not review that argument. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (“We review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely ”)
Dr. Nitin Paul Dhiman testified as a medical expert after reviewing Plaintiff's medical records. (AR 93, 95.) He identified Plaintiff as having Wegener's granulomatosis and osteoarthritis, but he determined she did not meet or equal a listing. (AR 94.) He opined she could occasionally lift 20 pounds, climb ramps and stairs, stoop, kneel, crouch, or crawl, and be exposed to extreme temperatures, wetness, humidity, and pulmonary irritants. (AR 94-95.) She frequently could lift 10 pounds, use foot controls, and reach in all directions, but never climb ladders, ropes, and scaffolds. (Id.) She could sit for 5 hours, stand for 2 hours, and walk for 1 hour in a workday. (AR 94.) She should avoid working with heavy machinery and working on unprotected heights. (AR 95.) Dr. Dhiman acknowledged that Plaintiff would be prone to good and bad days based on her conditions, and it would be reasonable if Plaintiff experienced one to two bad days per month. (AR 97.) He also testified that fatigue and nausea were common side effects of Rituxan but also could be caused by Wegener's itself. (AR 99-100.)
The ALJ cited Dr. Dhiman's testimony regarding the records upon which he relied to form his opinion, but the ALJ did not make a finding on whether the doctor's opinion was supported by, or consistent with, those records. (AR 52-53.) Rather, the ALJ found the "overall treatment records" were consistent with Dr. Dhiman's opinion. (AR 52.) In finding consistency, the ALJ cited the same limited information regarding treatment notes, Plaintiff's reported symptoms, and examination findings quoted above with respect to the ALJ's finding that Dr. Whittman's opinion was inconsistent. (AR 52-53.) Defendant argues that the ALJ found Dr. Dhiman's opinion consistent with the objective findings of normal gait, intact sensation, and full strength and range of motion. Those specific findings, which reveal no impairment, are not obviously consistent with Dr. Dhiman's opinion, because he concluded Plaintiff had "significant limitations." (AR 94.) Without further explanation by the ALJ, it is unclear whether she evaluated the supportability of Dr. Dhiman's opinion and with what portions of the record the ALJ believes the opinion is consistent.
CONCLUSION AND RECOMMENDATION
A federal court may affirm, modify, reverse, or remand a social security case. 42 U.S.C. § 405(g). When a court finds that an administrative decision is flawed, the remedy should generally be remand for "additional investigation or explanation." INS v. Ventura, 537 U.S. 12, 16 (2006) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)); see also Moisa v. Barnhart, 367 F.3d 882, 886 (9th Cir. 2004). Here, Plaintiff seeks solely a remand for further consideration. The Court finds that is the proper remedy.
On remand, the ALJ must re-evaluate whether fibromyalgia is a medically determinable impairment. If she concludes there is not sufficient evidence in the record to make that evaluation, she must consider further developing the record to make that determination. In light of the passage of time, collection of more recent medical records is warranted, and a consultative examination with a rheumatologist may be appropriate. The ALJ also must reconsider her assessment of Plaintiff's symptom testimony, as she failed to identify with specificity any clear and convincing reasons to discount it. In that evaluation, the ALJ should consider Dr. Howe's March 2021 statement as other medical evidence. Finally, the ALJ must reconsider the opinions of Drs. Whittman and Dhiman, and evaluate any other medical opinions that bear on the relevant time period.
The Magistrate Judge recommends that the District Court remand this matter to the ALJ for a new hearing and further proceedings, pursuant to sentence four of 42 U.S.C. § 405(g). Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within ten (10) days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within ten (10) days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV-21-0447-TUC-JGZ.