Opinion
CV-21-00289-TUC-SHR (MSA)
10-21-2022
REPORT AND RECOMMENDATION
Honorable Maria S. Aguilera, United States Magistrate Judge
Christina Albertson seeks judicial review of an unfavorable decision issued by the Commissioner of Social Security Administration (Commissioner). The matter has been fully briefed. (Docs. 23, 25, 26.) For the following reasons, the Court will recommend that the Commissioner's decision be reversed, and that this matter be remanded back to the agency for further proceedings.
Background
I. Procedural History
In 2019, Albertson filed applications for disability insurance benefits and supplemental security income, alleging a disability onset date of July 1, 2015. (AR 206, 213.) The applications were denied initially and on reconsideration. (AR 93, 95, 119, 121.) Albertson requested a hearing before an administrative law judge (ALJ), and a hearing was held in August 2020. (AR 33-64, 154.) After the hearing, the ALJ issued a written decision denying Albertson's applications. (AR 15-26.) The Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. (AR 1-3.) Albertson filed this lawsuit in July 2021. (Doc. 1.)
II. Plaintiff's Personal and Medical History
Albertson is 29 years old. (See AR 206.) She has a high school education and briefly attended college. (AR 56.) In the past, she worked as an equipment technician at a hospital. (AR 36-37.) In that job, she was responsible for cleaning small medical machines and commodes. (AR 37.)
Albertson has been diagnosed with rheumatoid arthritis, fibromyalgia, Sjogren's syndrome, and lupus. (AR 499.) She alleges that she is also disabled due to fatigue, depression, and anxiety. (AR 98, 109.) She says that her joint pain and swelling make it difficult to sit, stand, write, and walk, and that her “mental fog” makes focusing difficult. (AR 264.) She also says that her functionality is inconsistent because she has good days and bad days, with bad days accounting for about two-thirds of every month. (AR 40.)
III. ALJ Decision
The ALJ followed the five-step sequential evaluation process for determining whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ found that Albertson had not engaged in substantial gainful activity since her alleged onset date. (AR 17.) At step two, the ALJ found that Albertson had three severe impairments: obesity, fibromyalgia, and inflammatory arthritis. (AR 18.) At step three, the ALJ found that Albertson did not have an impairment or a combination of impairments that met or medically equaled the severity of a listed impairment. (AR 19.)
Between steps three and four, the ALJ found that Albertson had the residual functional capacity to perform less than the full range of light work. (AR 19-20.) At step four, the ALJ found that Albertson could not perform her past relevant work. (AR 24.) At step five, the ALJ found that Albertson could adjust to other work in the national economy. (AR 24.) The ALJ therefore concluded that Albertson was not disabled. (AR 25.)
Legal Standard
The ALJ's decision must be affirmed if it is supported by substantial evidence and free of legal error. Lambert v. Saul, 980 F.3d 1266, 1270 (9th Cir. 2020) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)). “Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Coleman v. Saul, 979 F.3d 751, 755 (9th Cir. 2020) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). The ALJ's decision may not be overturned on account of an error that was “inconsequential to the ultimate nondisability determination.” Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020) (quoting Tommasetti, 533 F.3d at 1038).
Discussion
I. Evaluation of Symptom Testimony
Albertson contends that the ALJ erred in discounting her symptom testimony. When, as here, the claimant's impairments could reasonably be expected to cause her alleged symptoms, and there is no evidence of malingering, the ALJ can reject the claimant's symptom testimony “only by offering specific, clear and convincing reasons for doing so.” Smith v. Kijakazi, 14 F.4th 1108, 1111-12 (9th Cir. 2021) (quoting Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014)). To satisfy this standard, “the ALJ must specifically identify the testimony she or he finds not to be credible and . . . explain what evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (citing Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)).
Albertson testified that her functionality is inconsistent because she has good days and bad days, with bad days accounting for about two-thirds of every month. (AR 40.) She explained that her joint pain makes it difficult to sit, stand, walk, write, and grasp with her hands. (AR 264.) She reported that she could perform physical activities only with frequent breaks. (AR 265.) For instance, she explained, she could walk only 100 feet on a good day (and less on a bad day) before needing a rest, and it could take a full day to complete her household chores. (AR 267, 269.) She also explained that, on a bad day, she may fall while climbing out of bed. (AR 40.)
The ALJ provided three reasons for rejecting this testimony: the testimony was inconsistent with the objective medical evidence; the testimony was inconsistent with Albertson's daily activities; and evidence indicated that Albertson's pain was controlled with medication. (AR 21-22.) None of these reasons is supported by substantial evidence.
A. Objective Medical Evidence
Objective medical evidence can be a “useful” factor in evaluating the severity of a claimant's symptoms. 20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2). In this case, the ALJ identified treatment records showing that Albertson, at times, had no joint tenderness and no signs of synovitis. (AR 390, 405, 471, 546, 582.) The ALJ also relied on treatment records showing that Albertson had an intact range of motion, normal sensation, and a normal gait. (AR 390, 393, 396, 420, 471, 540, 546, 582.) The ALJ remarked that Albertson's intact range of motion was “perhaps most indicative[]” of her good condition. (AR 21.)
The ALJ's reasoning reflects “an apparent fundamental misunderstanding of fibromyalgia” and therefore is not supported by substantial evidence. Revels v. Berryhill, 874 F.3d 648, 662 (9th Cir. 2017). Fibromyalgia is “diagnosed entirely on the basis of patients' reports of pain and other symptoms.” Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004). For those who have fibromyalgia, “physical examinations will usually yield normal results-a full range of motion, no joint swelling, as well as normal muscle strength and neurological reactions.” Green-Younger v. Barnhart, 335 F.3d 99, 108-09 (2d Cir. 2003) (quoting Lisa v. Sec'y of Dep't of Health & Hum. Servs., 940 F.2d 40, 45 (2d Cir. 1991)); see Revels, 874 F.3d at 656 (observing that fibromyalgia patients generally have normal “muscle strength, sensory functions, and reflexes” (quoting Rollins v. Massanari, 261 F.3d 853, 863 (9th Cir. 2001) (Ferguson, J., dissenting))). Accordingly, normal examinations do not undermine Albertson's testimony.
The ALJ also pointed out that Albertson's “providers routinely noted she was in no acute distress.” (AR 21.) By itself, this does not contradict any of Albertson's testimony. As discussed below, fibromyalgia often produces symptoms that wax and wane, and the record shows that Albertson consistently reported severe pain outside of the office environment. “Absent a more thorough explanation, the lack of evidence of acute distress [at appointments] is not a clear and convincing reason for discounting the credibility of the Plaintiff's symptom testimony.” Quiroz v. Comm'r of Soc. Sec. Admin., No. CV-16-02728-PHX, 2017 WL 4250607, at *3 (D. Ariz. Sept. 26, 2017).
B. Daily Activities
An ALJ may discount a claimant's symptom testimony if her daily activities either (a) contradict the testimony or (b) involve skills that could be transferred to the workplace. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Here, the ALJ cited Albertson's ability to perform household chores, prepare meals, shop at the grocery store, dress, bathe, socialize with others, and drive. (AR 22.)
The ALJ found that Albertson's “ability to participate in such activities was inconsistent with her allegations of functional limitations.” (AR 22.) However, there was no inconsistency. Albertson was clear that her functionality varied from day to day, which is not uncommon for someone who has fibromyalgia. (AR 40.) She was also clear that she had only a limited ability to perform the cited activities. In her function report, for example, Albertson reported that she could perform physical activities only for very short periods of time, and that she required breaks when preparing meals or doing chores. (AR 265-67.) During her hearing, she testified that she could not drive for more than 15 minutes without pain, and that her family helped her with shopping. (AR 43.) In addition, a friend of Albertson's corroborated her testimony that it took “all day” to complete chores “because of multiple breaks for rest.” (AR 257.) The ALJ relied on a list of “activities [Albertson] might do in a day” without “acknowledg[ing] that, over and over,” Albertson “explained that she could complete only some of the tasks in a single day and regularly needed to take breaks-which was consistent with her symptom testimony.” Revels, 874 F.3d at 667-68. The ALJ's reasoning is not supported by substantial evidence. See id. (reaching the same conclusion on similar facts).
The ALJ also found that “[s]ome of the physical and mental abilities and social interactions required in order to perform [the cited] activities were the same as those necessary for obtaining and maintaining employment.” (AR 22.) This reasoning suffers from multiple defects. The ALJ failed to identify which physical or mental abilities were transferable to the workplace; as such, he failed to make the “specific findings” about “transferability” necessary to warrant rejection of Albertson's testimony. Orn, 495 F.3d at 639 (quoting Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)). In addition, courts have found that many of the cited activities are not transferable. See Diedrich v. Berryhill, 874 F.3d 634, 643 (9th Cir. 2017) (household chores, cooking, shopping, and bathing); Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017) (grocery shopping). Finally, a claimant's ability to perform work-like activity is significant only if he can do so for “a substantial part of his day.” Orn, 495 F.3d at 639 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). There is no evidence that Albertson performed the cited activities for a substantial part of her day. See id. (rejecting the ALJ's reasoning in part because there was no evidence that the claimant “spent a ‘substantial' part of his day engaged in transferable skills”); Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014) (same); Vertigan v. Halter, 260 F.3d 1044, 1049-50 (9th Cir. 2001) (same). The ALJ's reasoning is not supported by substantial evidence.
C. Relief with Medication
An ALJ may reject a claimant's testimony on the ground that the claimant's impairments are “controlled effectively with medication.” Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). Here, the ALJ relied on several reports of pain relief noted by Albertson's providers. (AR 21.) In February 2019, Albertson reported that her condition was “about the same with diffuse joint pain relieved with DMARD's.”(AR 463.) In May 2019, she reported that her condition was “worse with joint pains all over with limitatin [sic] of ADL's; relief with DMARDs.” (AR 507.) In May 2020, she reported that her condition was “mostly controlled with benefit from DMARDs.” (AR 587.) Finally, in August 2020, she reported that her condition was “stable” on DMARDs. (AR 581.)
“DMARD” is an abbreviation for disease-modifying antirheumatic drug.
Viewed in isolation, these remarks appear to support the ALJ's finding. However, the ALJ failed to sufficiently account for the nature of fibromyalgia. Fibromyalgia is known to produce symptoms that “wax and wane so that a person may have ‘bad days and good days.'” SSR 12-2P, 2012 WL 3104869, at *6 (July 25, 2012). As such, the ALJ must “consider a longitudinal record whenever possible” when determining a fibromyalgia patient's residual functional capacity. Id.; see Ghanim, 763 F.3d at 1164 (stating that “treatment records must be viewed in light of the overall diagnostic record”). The ALJ here failed to do so.
The longitudinal record shows that Albertson's symptoms waxed and waned over a period of years. At an appointment in November 2017, Albertson rated her overall condition as a four out of ten (with zero representing “very well” and ten representing “very poor”) and rated her pain during the previous week as an eight out ten at its worst (with ten representing the “worst pain imaginable”) and as a six on average. (AR 496.) She improved slightly in January 2018. At her appointment, she rated her overall condition as a four, and she rated her pain during the previous week as a seven at its worst and as a three on average. (AR 494.) At this appointment, she stated that one of her prescribed DMARDs provided “some relief.” (AR 440.)
In March 2018, Albertson reported that the “pain ha[d] been getting wors[e],” despite her continuing on the same medication and dosage. (AR 398.) Her condition continued to deteriorate over the next couple of months. At an appointment in May 2018, Albertson reported that her condition was “somewhat worse with pain in [her] neck, shoulders, knees, [and] hands” and “swelling in [her] fingers and knee.” (AR 444.) At that time, she rated her overall condition as a seven, and she rated her pain during the previous week as an eight at its worst and as a five on average. (AR 490.)
Albertson's condition improved only marginally during the next few months. At an appointment in August 2018, she reported that her condition was “mostly controlled . . . as long as she g[ot] enough sleep.” (AR 449.) Still, she reported experiencing “pain in [her] feet, hands, wrists, clavicles, [and] ankles.” (AR 449.) She also rated her overall condition as a five or six, and she rated her pain during the previous week as an eight at its worst and as a six on average. (AR 488.) At an appointment in October 2018, Albertson reported that her condition was “about the same” and complained of “diffuse joint pain and limitation of” her daily activities. (AR 454.) Notwithstanding “some relief” from a prescribed DMARD, she rated both her overall condition and her pain during the previous week as an eight. (AR 454, 486.)
Albertson's condition improved over the following months. In January 2019, Albertson reported having recently resumed her medications “with benefit” (after having stopped them due to loss of insurance). (AR 458.) At that time, she rated her overall condition as a two, and she rated her pain over the previous week as a six. (AR 484.) About a week later, she stated that she was “doing fine” on her medications and that “the pain ha[d] been controlled.” (AR 391.) Then, in February 2019, Albertson reported that her condition was “about the same with diffuse joint pain relieved with DMARD's.” (AR 463.)
Albertson's condition then began to deteriorate again. In April 2019, she reported that “she still ha[d] been having pain on most of her joints.” (AR 388.) In May 2019, she reported that her condition was “worse with joint pains all over with limitatin [sic] of” her daily activities. (AR 507.) Notwithstanding “relief with DMARDs,” Albertson rated her overall condition as a five and rated her pain during the previous week as an eight at its worst and as a five on average. (AR 507, 513.) In August 2019, she reported that her condition was “the same” and complained of “diffuse joint pain” limiting her daily activities. (AR 567.) She also complained of swelling in her shoulder and hips. (AR 567.)
In November 2019, Albertson showed signs of improvement, reporting that her condition had “improved some with benefit from DMARDs.” (AR 561.) Nevertheless, she continued to complain of “diffuse joint pain” and “pain all over,” which limited her daily activities. (AR 561.) In February 2020, she reported that her condition was “about the same with diffuse joint pain adn [sic] AM stiffness all day.” (AR 593.) She also reported that her daily activities were “moderately limited,” and she “[w]onder[ed]” what to “[t]ake for pain.” (AR 593.) In May 2020, Albertson reported that her condition was “mostly controlled with benefit from DMARDs.” (AR 555.) Finally, in August 2020, Albertson reported that her condition was “stable” on her medications. (AR 581.) Even so, she rated her pain as a six. (AR 581.)
These records show that Albertson's condition fluctuated in severity over a period of years, despite her taking DMARDs for most of that period. (See AR 440, 494 (in January 2018, while taking hydroxychloroquine, she rated her overall condition as a four and her worst pain as a seven); AR 444, 490 (in May 2018, while taking hydroxychloroquine, she rated her overall condition as a seven and her worst pain as an eight); AR 458, 484 (in January 2019, while taking hydroxychloroquine and methotrexate, she rated her overall condition as a two and her worst pain as a six); AR 507, 513 (in May 2019, while taking hydroxychloroquine and methotrexate, she rated her overall condition as a five and her worst pain as an eight); AR 593-94 (in February 2020, while taking hydroxychloroquine and methotrexate, she reported diffuse joint pain and wondered what to take for the pain); AR 555-56 (in May 2020, while taking hydroxychloroquine and methotrexate, she reported that her pain was “mostly controlled”).) Thus, the longitudinal record does not support finding that Albertson's reports of “relief” show that medication controlled her pain. It was error for the ALJ to rely on those reports without considering them in the broader context of Albertson's record.
D. Conclusion
The ALJ erred in rejecting Albertson's symptom testimony. This error was harmful. Albertson testified that she had severe functional limitations on her “bad days,” which accounted for two-thirds of every month. (AR 40.) She reported an inability to engage in prolonged physical activity and a need for frequent breaks. (AR 265-69.) Thus, she would miss multiple days of work per month or be off task more than 10% of the time. According to the vocational expert, these circumstances preclude employment. (AR 58.) As such, the ALJ's error was not “inconsequential to the ultimate nondisability determination.” Ford, 950 F.3d at 1157 (quoting Tommasetti, 533 F.3d at 1038). .... ....
II. Evaluation of Medical Opinion
Albertson contends that the ALJ erred in evaluating the opinion of her rheumatologist, Dr. Ulker Tok. On a checkbox form, Dr. Tok opined that, in a normal workday, Albertson could sit for four hours and stand or walk for two hours. (AR 499.) Dr. Tok also opined that Albertson could not lift 20 or more pounds, would need to shift positions every 30 minutes, and would be unable to use her hands for about 25% of the day. (AR 499-500.) Finally, Dr. Tok opined that Albertson would need extra breaks and would miss work three or four days of work per month. (AR 500.)
An ALJ must analyze each medical opinion for “supportability” and “consistency.” 20 C.F.R. § 404.1520c(b)(2). An opinion that is well-supported by objective medical evidence and explanation is more persuasive, as is an opinion that is consistent with evidence from other medical and nonmedical sources. Id. § 404.1520c(c)(1)-(2). In this case, the ALJ essentially copy-pasted his reasons for discounting Albertson's symptom testimony. (AR 23.) As discussed above, that reasoning was based on a misunderstanding of fibromyalgia. The longitudinal record shows that Albertson's condition fluctuated in severity over the course of years, and that she experienced severe, chronic pain. Normal examination results and occasional reports of relief do not undermine Albertson's symptoms, nor do they undermine Dr. Tok's assessment of her longtime patient. See Revels, 874 F.3d at 666-68 (faulting the ALJ for applying the same erroneous reasoning about fibromyalgia to both the claimant's testimony and her doctor's medical opinion).
This error was also harmful. Under Dr. Tok's assessment, Albertson could not maintain work because she would miss multiple days per month. (AR 58.) Thus, the ALJ's error was not “inconsequential to the ultimate nondisability determination.” Ford, 950 F.3d at 1157 (quoting Tommasetti, 533 F.3d at 1038).
* * *
The Court finds that the ALJ committed harmful error in rejecting Albertson's symptom testimony and Dr. Tok's medical opinion. Albertson does not contend that she is entitled to an immediate award of benefits, and the Court finds that remand is appropriate in any event. Therefore, IT IS RECOMMENDED that the Commissioner's decision be reversed, and that this matter be remanded back to the agency for a new hearing and decision.
This recommendation is not immediately appealable to the United States Court of Appeals for the Ninth Circuit. The parties shall have fourteen days from the date of service of this recommendation to file specific written objections with the district court. The parties shall have fourteen days to file responses to any objections. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2). No replies may be filed absent prior authorization by the district court. Failure to file timely objections may result in the acceptance of this recommendation without de novo review. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
The Clerk of Court is directed to terminate the referral of this matter. Filed objections should bear the following case number: CV-21-00289-TUC-SHR.