Opinion
CV 20-00096-TUC-RCC (LAB)
07-19-2021
Elena Rascon, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
LESLIE A. BOWMAN UNITED STALES MAGISTRATE JUDGE
The plaintiff, Elena Rascon, filed this action for review of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). (Doc. 1, p. 1)
The case has been referred to the United States Magistrate Judge pursuant to the Rules of Practice of this court. (Doc. 16)
Also pending is the Commissioner's motion to remand for further proceedings. (Doc. 22)
The Magistrate Judge recommends that the District Court, after its independent review, reverse the final decision of the Commissioner. The ALJ erred by failing to consider whether Rascon's fibromyalgia is a medically determinable impairment. The record is not fully developed, and therefore this case should be remanded for further proceedings. See Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015), as amended (Feb. 5, 2016).
PROCEDURAL HISTORY
On August 24, 2016, Rascon constructively filed applications for disability insurance benefits pursuant to Title II and supplemental security income pursuant to Title XVI of the Social Security Act. (Doc. 19-3, p. 14) She alleged disability beginning on February 28, 2016, due to fibromyalgia, hyper/hypo thyroid, Graves disease, parathyroidectomy, PTSD (post traumatic stress disease), anxiety, depression, fatigue syndrome, obesity, GERD (gastroesophageal reflux disease), sleep apnea, restless legs syndrome, and burning feet. (Doc. 19-7, p. 15)
Rascon's applications were denied initially and again upon reconsideration. (Doc. 19-3, p. 14) She requested review and appeared with counsel at a hearing before Administrative Law Judge (ALJ) Larry E. Johnson on December 4, 2018. (Doc. 19-3, p. 37) In his decision, dated March 14, 2019, the ALJ found that Rascon was not disabled because she could work as a Router, DOT 222.587-038, or a Routing Clerk, DOT 222.687-022, in accordance with the testimony of a vocational expert. (Doc. 19-3, pp. 28-29)
On January 14, 2020, the Appeals Council denied Rascon's request for review making the decision of the ALJ the final decision of the Commissioner. (Doc. 19-3, p. 2) Rascon subsequently filed this action seeking review of that final decision. (Doc. 1)
Work History and Medical History
Rascon worked as a “school liaison.” (Doc. 19-3, pp. 44, 61-62); (Doc. 19-7, p. 26, 30) She “reach[ed] out to students and families who needed public assistance or [were] in danger of failing due to grades or attendance.” (Doc. 19-7, p. 30) As part of her job, she carried boxes of awards and certificates, and bags of food for needy families. Id. During the workday, she also performed other jobs as needed such as cafeteria worker or front desk attendant. (Doc. 19-3, pp. 57-58)
Rascon stopped working after a motor vehicle accident in February of 2016. (Doc. 19-3, p. 41, 42, 43) The accident triggered her preexisting PTSD from a prior roll-over accident. (Doc. 19-4, p. 15) It also resulted in lasting physical symptoms.
Since the accident, Rascon reported that “I've had pain in my neck, in my back, headaches, just really pain all over.” (Doc. 19-3, p. 44) She takes Tylenol, oxycodone, and gabapentin. (Doc. 19-3, pp. 48-49) Rascon reports that if she stays in one position for more than 30 minutes, her back hurts. (Doc. 19-3, p. 51) Consequently, she spends the day shifting positions between sitting, standing, and lying down. Id. Sometimes she needs to take a two-hour nap “[t]o get through the day.” Id. She has sleep apnea and restless leg syndrome and uses a CPAP (continuous positive airway pressure) machine. Id. She sleeps poorly. (Doc. 19-3, pp. 54-56)
For the years 2016 and 2017, the medical record contains numerous entries documenting Rascon's many visits to her various medical providers. She made many of those visits in a largely unsatisfactory attempt to find relief for her chronic and mysterious pain. See, e.g., (Doc. 19-3, p. 22) (“She was not happy with a Neurology appointment in January that stated that there was nothing wrong with her.”)
In January of 2017, J. Wright, M.D., reviewed Rascon's medical record for the disability determination service. (Doc. 19-4, pp. 12-15) Wright opined that Rascon could lift and carry 20 pounds occasionally and 10 pounds frequently on her right side, and 10 pounds occasionally and 5 pounds frequently on her left side. Id. She could sit, stand, or walk for 6 hours in an 8-hour day. Id. He noted generally that Rascon reported an exaggerated amount of pain when compared to the objective clinical evidence and in light of the relatively low velocity motor vehicle accident. Id.
In June of 2017, Charles Combs, M.D., reviewed Rascon's medical record for the disability determination service. (Doc. 19-4, pp. 53-57) His opinion of Rascon's functional limitations was essentially the same as Wright's. Id.
Previously, in December of 2016, Celia Elias, M.D., Rascon's treating physician, noted that Rascon “may be developing fibromyalgia.” (Doc. 19-9, p. 14) In October of 2018, she completed a Physical Residual Functional Capacity Questionnaire. (Doc. 19-10, pp. 85-87) She diagnosed Rascon with cervicalgia (neck pain), cervical radiculopathy (nerve pain in the neck), backpain, lumbar radiculopathy (nerve pain in the back), and fibromyalgia. Id. She stated that Rascon suffers from pain in her neck, body, and legs as well as muscle pain, fatigue, nausea, and vertigo. Id. She opined that Rascon could sit for 4 hours and stand or walk for 3 hours in an 8-hour day. Id. Rascon needs to shift positions every 30 minutes. Id. She would need 4-6 additional breaks during the work day and would be absent from work for at least 4 days per month due to her impairments. Id. Elias further opined in a Work Release statement that Rascon could work 4 hours per day and up to 4-5 days per week. Id. She could lift or carry 8-10 pounds for no more than 1 hour per day. Id. She could walk or stand for 1 hour per day. Id. She would need to rest as needed. Id. She would be expected to miss work or leave early from work 4 or more days per month on average. Id. The vocational expert testified at the hearing that an absentee rate this high, as well as the requirement that Rascon needs to shift position every 30 minutes, would preclude full-time work. (Doc. 19-3, p. 67)
CLAIM EVALUATION
Social Security Administration (SSA) regulations require that disability claims be evaluated pursuant to a five-step sequential process. 20 C.F.R. §§ 404.1520 and 416.920. The first step requires a determination of whether the claimant is engaged in substantial gainful activity. Id. If so, the claimant is not considered disabled and benefits are denied. Id.
If the claimant is not engaged in substantial gainful activity, the ALJ proceeds to step two, which requires a determination of whether the claimant has a severe impairment or combination of impairments. Id. In making a determination at step two, the ALJ uses medical evidence to consider whether the claimant's impairment significantly limits or restricts his or her physical or mental ability to do basic work activities. Id. If the ALJ concludes the claimant has no severe impairments, the claim is denied. Id.
Upon a finding of severity, the ALJ proceeds to step three, which requires a determination of whether the impairment meets or equals one of several listed impairments that the Commissioner acknowledges are so limiting as to preclude substantial gainful activity. Id. If the claimant's impairment meets or equals one of the listed impairments, then the claimant is presumed to be disabled and no further inquiry is necessary. Ramirez v Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993). If the claimant's impairment does not meet or equal a listed impairment, evaluation proceeds to the next step.
At step four, the ALJ evaluates the claimant's residual functional capacity (RFC) and determines whether he or she is able to perform past relevant work. 20 C.F.R. § § 404.1520 and 416.920. The ALJ must “consider all of [the claimant's] medically determinable impairments . . . including [] medically determinable impairments that are not ‘severe' . . . .” 20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2). If the claimant is able to perform past relevant work, then the claim is denied. 20 C.F.R. §§ 404.1520 and 416.920. If the claimant cannot perform any past relevant work, then the ALJ must move to the fifth step, which requires consideration of the claimant's RFC to perform other substantial gainful work in the national economy in view of the claimant's age, education, and work experience. Id. “There are two ways for the [ALJ] to meet the burden of showing that there is other work in ‘significant numbers' in the national economy that claimant can do: (1) by the testimony of a vocational expert, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2, ” also known as the “Grids.” Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006).
Residual functional capacity is defined as that which an individual can still do despite his or her limitations. 20 C.F.R. §§ 404.1545 and 416.945.
The ALJ's Findings
At step one of the disability analysis, the ALJ found “[t]he claimant has not engaged in substantial gainful activity since February 28, 2016, the alleged onset date . . . .” (Doc. 19-3, p. 16)
At step two, the ALJ found “[t]he claimant has the following severe impairments: obesity status post recent bariatric surgery; degenerative disc disease and anxiety disorder . . . .” Id. At step three, the ALJ found “[t]he claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 . . . .” (Doc. 19-3, p. 17)
The ALJ then analyzed Rascon's residual functional capacity (RFC). In accordance with the regulations, he first determined whether Rascon suffers from “an underlying medically determinable physical or mental impairment(s)” and then evaluated “the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's functional limitations.” (Doc. 19-3, p. 19) The ALJ did not determine whether Rascon's alleged fibromyalgia is a medically determinable impairment under the regulations.
The ALJ found Rascon has the residual functional capacity to perform a modified range of light work “limited to simple work with limited public contact.” (Doc. 19-3, pp. 18-19) He discounted the opinion of Rascon's treating physician, Elias, as “inconsistent with the objective medical evidence of record.” (Doc. 19-3, p. 26)
The ALJ summarized his analysis as follows: “In sum, it has been determined that the claimant has an underlying medically determinable impairment that could possibly produce some pain or other symptoms, however, when the claimant's pain and other symptoms are evaluated, the allegations exceed the limitations reasonably expected from the medical findings. For example the claimant's treating and examining physicians consistently characterized the impairments as ‘minimal', ‘mild', ‘slight', ‘normal' and ‘unremarkable', with reference to the clinical and laboratory findings, which seems quite disproportionate to the severity of pain claimant has alleged.” (Doc. 19-3, p. 26) At step four, the ALJ found Rascon “is unable to perform any past relevant work . . . .” (Doc. 19-3, p. 27)
At step five the ALJ considered Rascon's “age, education, work experience, and residual functional capacity” and found “there are jobs that exist in significant numbers in the national economy that the plaintiff can perform, ” specifically Router, DOT 222.587-038, and Routing clerk, DOT 222.687-022. (Doc. 19-3, pp. 28-29)
STANDARD OF REVIEW
To qualify for disability benefits, the claimant must demonstrate, through medically acceptable clinical or laboratory standards, an inability to engage in substantial gainful activity due to a physical or mental impairment that can be expected to last for a continuous period of at least twelve months. 42 U.S.C. §§ 423(d)(1) and 1382c(a)(3). “[A]n individual shall be determined to be under a disability only if [her] physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [she] lives, or whether a specific job vacancy exists for [her] or whether [she] would be hired if [she] applied for work.” 42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B).
The findings of the ALJ are meant to be conclusive. The decision to deny benefits “should be upheld unless it contains legal error or is not supported by substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. It is “more than a mere scintilla but less than a preponderance.” Id.
“Where evidence is susceptible to more than one rational interpretation, the ALJ's decision should be upheld.” Orn, 495 F.3d at 630. “However, a reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Id.
“An ALJ is not required to believe every allegation of disabling pain or other non-exertional impairment.” Orn, 495 F.3d at 635 (punctuation modified). “However, to discredit a claimant's testimony when a medical impairment has been established, the ALJ must provide specific, cogent reasons for the disbelief.” Id. “The ALJ must cite the reasons why the claimant's testimony is unpersuasive.” Id. If the ALJ does not find “affirmative evidence” of malingering, “those reasons for rejecting the claimant's testimony must be clear and convincing.” Id. Discussion
The parties agree that the ALJ erred by failing to analyze whether Rascon's fibromyalgia is a medically determinable impairment. The issue for the court is whether the case should be remanded for further proceedings or for calculation of benefits.
“A district court may reverse the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. . . but the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015), as amended (Feb. 5, 2016). “Our case law precludes a district court from remanding a case for an award of benefits unless certain prerequisites are met.” Id. “The district court must first determine that the ALJ made a legal error, such as failing to provide legally sufficient reasons for rejecting evidence.” Id. “If the court finds such an error, it must next review the record as a whole and determine whether it is fully developed, is free from conflicts and ambiguities, and all essential factual issues have been resolved.” Id. “In conducting this review, the district court must consider whether there are inconsistencies between the claimant's testimony and the medical evidence in the record . . . or whether the government has pointed to evidence in the record that the ALJ overlooked and explained how that evidence casts into serious doubt the claimant's claim to be disabled Id. “Unless the district court concludes that further administrative proceedings would serve no useful purpose, it may not remand with a direction to provide benefits.” Id.
The court finds that the record is not fully developed, and therefore this case should be remanded for further proceedings. Specifically, the ALJ did not consider whether Rascon's fibromyalgia is a medically determinable impairment.
“[Fibromyalgia [is] a rheumatic disease that causes inflammation of the fibrous connective tissue components of muscles, tendons, ligaments, and other tissue.” Benecke v. Barnhart, 379 F.3d 587, 589-90 (9th Cir. 2004). “Common symptoms . . . include chronic pain throughout the body, multiple tender points, fatigue, stiffness, and a pattern of sleep disturbance that can exacerbate the cycle of pain and fatigue associated with this disease.” Id.
“Fibromyalgia's cause is unknown, there is no cure, and it is poorly-understood within much of the medical community.” Id.
“What is unusual about the disease is that those suffering from it have muscle strength, sensory functions, and reflexes that are normal.” Revels v. Berryhill, 874 F.3d 648, 656 (9th Cir. 2017). “Their joints appear normal, and further musculoskeletal examination indicates no objective joint swelling.” Id. “Indeed, there is an absence of symptoms that a lay person may ordinarily associate with joint and muscle pain.” Id. “The condition is diagnosed entirely on the basis of the patients' reports of pain and other symptoms.” Id. “There are no laboratory tests to confirm the diagnosis.” Id.
In the past, the Social Security Administration (SSA) was reluctant to recognize fibromyalgia as an impairment that could cause disability. Id. In 2012, however, the SSA recognized fibromyalgia “as a valid basis for a finding of disability” and issued Social Security Ruling (SSR) 12-2p, which describes the process for evaluating the condition. Id.
If it turns out that Rascon's symptoms are due to fibromyalgia, that might explain why she seems to suffer more pain than would be expected from her largely normal physical exams. See Revels, 874 F.3d at 666. And, if Rascon's fibromyalgia is a medically determinable impairment, the ALJ might weigh differently her subjective symptom testimony and the recommendations of her treating physician, and he might arrive at a different RFC. See also Tyson E. v. Comm 'r of Soc. Sec., 2021 WL 1579902, at *4 (D. Or. 2021) (“The ALJ must consider the total limiting effects of all of the medically determinable impairments, both severe and non-severe, in determining the claimant's RFC, including the effect of pain.”) (punctuation modified). This case should be remanded to give the ALJ an opportunity to re-evaluate the medical record in light of this possibility. See, e.g., Butler v. Colvin, 2016 WL 8232243, at *3-6 (E.D. Wash. 2016) (Where the ALJ failed to analyze the claimant's fibromyalgia pursuant to SSR 12-2p, the case was remanded for further proceedings.).
Rascon argues to the contrary that this case should be remanded for payment of benefits because there is no factual dispute as to whether Rascon suffers from fibromyalgia. She notes that “fibromyalgia” is first mentioned in August of 2016, only six months after her traffic accident. (Doc. 30, p. 2) And, she maintains that fibromyalgia is often triggered by traumatic events. Id. She asserts that “[t]here can be no reasonable dispute that fibromyalgia is a medically determinable impairment. . . .” Id. The court disagrees.
No determination has been made as to whether Rascon's fibromyalgia constitutes a medically determinable impairment in accordance with SSR 12-2p. Rascon's treating physician diagnosed her with fibromyalgia, but a diagnosis, by itself, is insufficient to establish the presence of a “medically determinable impairment.” 20 C.F.R §§ 404.1521 and 416.921. (“Your impairment(s) must result from anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques. . . . We will not use your statement of symptoms, a diagnosis, or a medical opinion to establish the existence of an impairment(s).”).
RECOMMENDATION
For the foregoing reasons, the Magistrate Judge recommends that the District Court, after its independent review, reverse the final decision of the Commissioner and remand for further proceedings. The Commissioner's Countermotion to Remand should be GRANTED. (Doc. 29)
Pursuant to 28 U.S.C. § 636(b), any party may file and serve written objections within 14 days after being served with a copy of this Report and Recommendation. If objections are not timely filed, the party's right to de novo review may be waived. The Local Rules permit the filing of a response to an objection. They do not permit the filing of a reply to a response without leave of the District Court.