Opinion
Case No. 3:17-cv-01753-SB
01-22-2019
SAMANTHAB., Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
FINDINGS AND RECOMMENDATION
BECKERMAN, U.S. Magistrate Judge.
Samantha B. ("Plaintiff") brings this appeal challenging the Commissioner of Social Security's ("Commissioner") denial of her applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-34, 1381-83f. The Court has jurisdiction to hear Plaintiff's appeal pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons explained below, the Court recommends that the district judge reverse the Commissioner's decision and remand this case for an award of benefits.
BACKGROUND
Plaintiff was born in October 1969, making her forty-three years old on November 21, 2012, the alleged disability onset date. (Tr. 53, 691, 715.) Plaintiff has a high school education and past relevant work as a general inspector, hand packager, janitor, and machine operator. (Tr. 52-53, 678-79.) In her applications for benefits, Plaintiff alleges disability due to anxiety and thrombotic thrombocytopenic purpura ("TTP"). (Tr. 691, 715.) Plaintiff also alleges disability due to fatigue, migraines, sleeping issues, and deficient memory and concentration. (Tr. 650-52.)
TTP is a "rare blood disorder," Smith v. Christus Saint Michaels Health Sys., 496 F. App'x 468, 469 (5th Cir. 2012), that "causes blood clots to form in small blood vessels around the body." Kirchner v. Colvin, No. 12-1331, 2013 WL 5274469, at *9 n.7 (D. Minn. Sept. 18, 2013) (citation omitted).
On November 21, 2012, the alleged onset date, Plaintiff visited Dr. Jennifer Wilson ("Dr. Wilson"), complaining of abdominal pain, "bloody urine for the last 4 days," and "headaches over the last 2 weeks with almost daily to every other day migraines." (Tr. 75; see also Tr. 993-94, noting the following day that Plaintiff reported experiencing migraines that "were initially every other day" and "bec[ame] more frequent with light and sound sensitivity and kaleidoscopic vision"). Based on an examination, imaging, and consultation with other doctors, Dr. Wilson suspected Plaintiff was suffering from TTP and, therefore, transferred Plaintiff via ambulance to Oregon Health and Science University ("OHSU"), to be treated by a specialist. (Tr. 77.)
On November 26, 2012, Plaintiff was discharged from OHSU after undergoing five days of plasmapheresis therapy (a process that removes harmful antibodies from Plaintiff's plasma). (Tr. 983.)
In December 2012, Plaintiff relapsed twice and was admitted for further rounds of plasma exchange. (Tr. 1200, 1424.)
On October 15, 2013, Plaintiff visited Michelle Whitney ("Whitney"), a licensed clinical social worker, complaining of "high levels of stress and anxiety." (Tr. 1921.) Whitney noted that Plaintiff and her husband did "not have a source of income"; Plaintiff was in the process of applying for Social Security benefits and her husband did "not have secure employment"; Plaintiff and her husband owed their daughter money and had their food stamps reduced; and Plaintiff was interested in pursuing outpatient mental health counseling, but her options were limited due to her financial means. (Tr. 1921.) Whitney stated that Plaintiff's "stress/anxiety are situational in nature and related to her current psychosocial concerns, specifically her finances." (Tr. 1921.)
On November 8, 2013, Plaintiff presented for a follow-up visit with her primary care physician, Dr. Kathleen Drago ("Dr. Drago"). Dr. Drago noted that Plaintiff complained of ongoing family and financial stressors (i.e., Plaintiff's stepdaughter was living in foster care and Plaintiff and her husband had to sell "their car recently to have money to pay their rent"), migraines multiple times a week that were "usually aborted with sumatriptan or Phenergan," "panic attacks multiple times weekly that abate with PRN hydroxyzine use," and "feeling quite fatigued, though [she] was able to walk 5 miles this last weekend while they did not have a car." (Tr. 1917.) Dr. Drago also noted that Plaintiff had "been quite reluctant to try a preventative medication" for her chronic migraines, but she was now open to being prescribed amitriptyline. (Tr. 1919.)
On January 4, 2014, Dr. Drago noted that Plaintiff's headaches were "better controlled on 20 mg of amitriptyline at night," Plaintiff noticed "recurrence of mild daily headaches in the later hours with prolonged sleep latency," Plaintiff was "[d]oing better on maintenance amitriptyline but [was] still not headache free," and she increased Plaintiff's dosage of amitriptyline. (Tr. 1913-16.)
On February 11, 2014, Dr. Joshua Boyd ("Dr. Boyd"), a non-examining state agency psychologist, completed a psychiatric review technique assessment. (Tr. 696-97.) Dr. Boyd reviewed the record and found that Plaintiff's mental impairments failed to meet or equal listing 12.04 (affective disorders).
On February 12, 2014, Dr. Neal Berner ("Dr. Berner"), a non-examining state agency physician, completed a physical residual functional capacity assessment. (Tr. 697-99.) Based on his review of the record, Dr. Berner determined that Plaintiff can lift and carry twenty pounds occasionally and ten pounds frequently; sit, stand, and walk for up to six hours in an eight-hour workday; push and pull in accordance with her lifting and carrying restrictions; and occasionally reach or lift with the left upper extremity despite chronic shoulder difficulty. Dr. Berner also determined that Plaintiff does not suffer from postural, visual, communicative, or environmental limitations.
On May 22, 2014, Plaintiff presented for a follow-up visit with Dr. Drago. Plaintiff reported struggling with ongoing family and financial stressors, and complained of frequent headaches "requiring frequent use of sumatriptan and promethazine." (Tr. 1998.) Dr. Drago noted that Plaintiff's "significant psychosocial stressors . . . have caused her anxiety and depression to worsen," Plaintiff understood that "medications may help her deal with these stressors but won't fix the underlying issues," and she encouraged Plaintiff to find time to relax. (Tr. 2000.)
On June 20, 2014, Dr. Drago noted that Plaintiff was "still struggling with quite severe symptoms" of "[m]ixed anxiety/depression," that Plaintiff's headaches have "a very strong relationship to events in her life and stressors," and that "counseling would be ideal for [Plaintiff] but [mental health counseling is] not readily available given her tenuous financial situation." (Tr. 2088.)
On August 6, 2014, Dr. Martin Kehrli ("Dr. Kehrli"), a non-examining state agency physician, completed a physical residual functional capacity assessment. (Tr. 723-24.) Dr. Kehrli agreed with Dr. Berner's initial findings in all respects, except for the following: Dr. Kehrli found that Plaintiff can occasionally reach or lift overhead with the right (not the left) upper extremity.
On August 11, 2014, Dr. Dorothy Anderson ("Dr. Anderson"), a non-examining state agency psychologist, completed a psychiatric review technique assessment. (Tr. 721-22.) Dr. Anderson agreed that Plaintiff's mental impairments failed to meet or equal listing 12.04 (affective disorders).
In a medical source statement dated September 15, 2014, Dr. Drago stated that Plaintiff has been diagnosed with, inter alia, "generalized anxiety disorder with panic" and "chronic daily headache/transformed migraine." (Tr. 2021.) Dr. Drago opined that: (1) Plaintiff "typically needs" to rest fifteen to twenty minutes "per hour on average"; (2) Plaintiff "often needs to rest/take medication at intervals more frequent than" the time provided by customary break periods, thus impairing Plaintiff's ability to stand and/or walk up to two hours in an eight-hour workday; (3) Plaintiff has "no issues with standing" and can walk between a quarter to half a mile on a continuous basis; (4) Plaintiff has no issues with sitting up to six hours in an eight-hour workday, but her focus and concentration "will [still] be affected" by her impairments; (5) Plaintiff would not be able to stay on task consistently for "greater than 20 percent of a workday or workweek" due to her anxiety, panic, and headaches, which "impair [her] ability to focus" and "significantly impair[] [her] concentration"; (6) for more than "10 percent of a workday or workweek," Plaintiff would not be able to "[p]erform activities within a schedule and maintain acceptable attendance and punctuality"; and (7) Plaintiff would not be able to perform simple, repetitive, and routine tasks "up to 10 percent of a workday or workweek." (Tr. 2022-24.) Dr. Drago added that Plaintiff's limitations have been in effect since November 2012, Plaintiff is "very credible," and Plaintiff "wants to be able to work but understands her limitations." (Tr. 2026.)
Plaintiff's counsel sent the medical source statement to Dr. Drago on August 15, 2014 (Tr. 2021), and the Court Transcript Index indicates that it was dated September 15, 2014. (See Ct. Tr. Index at 3.)
On February 18, 2015, Dr. Wilson noted that Plaintiff's "headaches started with TTP," which was "under control" at the time, but she continued to have "headaches 3-4 days per week." (Tr. 2324.)
In a treatment note dated May 15, 2015, Dr. Wilson noted that Plaintiff reported experiencing two to three headaches "per week instead of every day," Plaintiff was under "a lot of stress at home" due to financial issues, she had referred Plaintiff "to neurology to help with [headache] control and diagnosis," Plaintiff still needed to call neurology to make an appointment, and Plaintiff is "much more sedentary than a few years ago due to a combination of factors," including the fact that she "gets tired easy" and suffers from headaches and depression. (Tr. 2370-74.)
On January 8, 2016, Oregon Disability Determination Services ("ODDS") referred Plaintiff to Dr. Sergiy Barsukov ("Dr. Barsukov"), a clinical psychologist, for a psychodiagnostic interview. (Tr. 2027-36.) Dr. Barsukov administered a "[p]sychodiagnostic interview and mental status exam," and he reviewed medical records from 2014 that were provided by ODDS. (Tr. 2027.) Dr. Barsukov's primary diagnosis was an "[a]djustment disorder with mixed anxiety and depressed mood" that is "chronic in nature." (Tr. 2033-34.) Dr. Barsukov noted that Plaintiff "earned 26 out of 30" on her mental status exam, placing her "in the normal range." (Tr. 2033.) Dr. Barsukov added that Plaintiff "showed no evidence of problems with attention"; was able to "name all months of the year backwards beginning from December," "do 4 out of 5 trials correctly of serial 7's," and "engage in appropriate social interactions"; and is "capable of understanding and remembering instructions at a level comparable to other people her age." (Tr. 2034.)
In a medical source statement dated January 13, 2016, Dr. Barsukov evaluated Plaintiff's ability to perform work-related activities. (Tr. 2037-39.) Dr. Barsukov opined that Plaintiff's impairments do not affect her ability to understand, remember, and carry out instructions, or her ability to interact appropriately with supervisors, co-workers, and the public. Dr. Barsukov, however, noted that Plaintiff's "abilities may become impaired when her level of stress is increased or if her symptoms increase in severity." (Tr. 2037-38.) Dr. Barsukov added that Plaintiff reported that "she feels easily fatigued and weak," which "may be related to her TTP"; a specialist "may be in a better position to explain the effects" of TTP; Plaintiff reported difficulties concentrating; and concentration issues were "not overtly seen during the interview," but Plaintiff did only recall "1 out of 3 unrelated objects" during her mental status exam. (Tr. 2038.)
On April 26, 2016, Plaintiff appeared and testified at a hearing before an Administrative Law Judge ("ALJ"). (Tr. 645-90.) Plaintiff testified that the "things [that] bother[] [her] the most" are her "[l]ack of memory and lack of concentration," and that she also suffers from frequent migraines that give her "kaleidoscope vision," fatigue, and difficulty sleeping. (Tr. 650-52.) Plaintiff also testified that she drives only short distances (i.e., less than a mile) due to her headaches and anxiety; she "cannot stay on a set schedule because of headaches" and her inability to concentrate; her headaches cause "visual issues to where it makes [her] unable to see" and sensitivity to sound and light; her headache medication helps "[t]o a very small extent"; stress and anxiety "cause[] the migraines"; she is "unable to do anything" at least once per hour because she will "have anxiety or [a] panic attack" or her "headache comes on without any warning"; her husband and daughter assist Plaintiff with household chores; she can lift and carry no more than fifteen pounds due to issues with her right shoulder; she cannot stand and walk six hours in an eight-hour workday because her headaches make her nauseous; and she cannot sit for six hours in an eight-hour workday because she has "never been a person to sit, ever." (Tr. 664-75.)
Dr. Wil Nelp ("Dr. Nelp"), a medical expert board-certified in internal and nuclear medicine, also appeared and testified at the hearing before the ALJ. (Tr. 649.) Based on his review of Plaintiff's medical records, Dr. Nelp determined that Plaintiff can lift twenty pounds occasionally and ten pounds frequently; can sit, stand, and walk for up to six hours in an eight-hour workday; can engage in no more than occasional reaching "in all directions, mostly overhead and laterally," with her right upper extremity; can never climb ropes and ladders; can occasionally crawl, kneel, and climb ramps and stairs; needs to "avoid all heights and hazards"; and needs to avoid "concentrated exposure[] [to] the rest of the environmental issues." (Tr. 652-57.)
When asked about Dr. Drago's opinion that Plaintiff needs to "rest for 15 to 20 minutes each hour," Dr. Nelp testified that Dr. Drago's opinion is "probably inconsistent" with Dr. Nelp's review of the medical records. (Tr. 657.) In support of his opinion, Dr. Nelp noted that "[t]o rest for 20 minutes an hour means basically you're bedridden, which [Plaintiff] is not"; Dr. Drago indicated that Plaintiff "can walk a half a mile" and is "physically quite active"; Dr. Drago opined that Plaintiff can sit for up to six hours in an eight-hour workday; and "when you're sitting in a workplace, you're basically resting." (Tr. 657-58.) Dr. Nelp also testified that Plaintiff's "off and on" headaches are "reasonably responsive to medication, according to the medical records"; Plaintiff's headaches "do not impair her physical capabilities," but they do "impair her concentration" and "sometimes her vision"; Dr. Barsukov's examination indicates that Plaintiff "has full activities of daily living despite" the "effects of her anxiety [and] panic disorders"; and "psychiatric issue[s]" are admittedly "not in [his] domain," but he did not "see any objective data" in the record that would support Dr. Drago's opinion that Plaintiff would not be able to stay on task consistently for greater than twenty percent of a workday or workweek. (Tr. 658-61.)
The ALJ posed several hypothetical questions to a Vocational Expert ("VE") who testified at Plaintiff's hearing. First, the ALJ asked the VE to assume that a hypothetical worker of Plaintiff's age, education, and work experience could perform light work that (1) involves no more than occasional crawling, kneeling, climbing of ramps and stairs, and reaching with the right, dominant upper extremity; and (2) does not involve climbing ladders, ropes, or scaffolds or exposure to hazards (e.g., machinery and unprotected heights), extreme temperatures, excessive wetness or humidity, vibration, excessive noise, or pulmonary irritants. The VE testified that the hypothetical worker could not perform Plaintiff's past relevant work, but she could perform the jobs of "bakery worker, conveyor line"; "investigator, dealer account"; and "laminator grader." (Tr. 680.)
Responding to the ALJ's follow-up questions, the VE confirmed that the hypothetical worker could not perform sedentary jobs, which require frequent use of the hands bilaterally; the jobs identified above "don't allow for changing sitting and standing"; there are no other jobs available in the national economy that would allow the hypothetical worker described above to "change positions between sitting and standing with some discretion beyond the standard break"; the jobs identified above involve performing tasks that are considered simple and routine; and a hypothetical worker could sustain gainful employment if she was off-task no more ten to fifteen percent of the workday, but not if she was "unexpectedly absent" more than once a month. (Tr. 680-82.)
Plaintiff's attorney also posed questions to the VE. Responding to those questions, the VE testified that the hypothetical worker could not perform the job of "investigator, dealer account" if she was limited to "remembering, understanding, and following no more than three-step commands"; could not perform the jobs identified above if she was off-task twenty percent of the workday or "off task an extra ten minutes an hour" due to migraine-related "near acuity unpredictability" (Plaintiff testified she experiences "a kaleidoscope scene from . . . migraine headache[s]"); and could not perform the jobs of "bakery worker, conveyor line" or "laminator grader" if she needed to be redirected "a couple of times an hour" during an eight-hour workday. (Tr. 684-88.)
In a written decision issued on June 9, 2016, the ALJ applied the five-step process set forth in 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), and found that Plaintiff was not disabled. See infra. The Social Security Administration Appeals Council denied Plaintiff's petition for review, making the ALJ's decision the Commissioner's final decision. Plaintiff timely appealed.
THE FIVE-STEP SEQUENTIAL ANALYSIS
I. LEGAL STANDARD
A claimant is considered disabled if he or she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A). "Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act." Keyser v. Comm'r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Those five steps are: (1) whether the claimant is currently engaged in any substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or equals a listed impairment; (4) whether the claimant can return to any past relevant work; and (5) whether the claimant is capable of performing other work that exists in significant numbers in the national economy. Id. at 724-25. The claimant bears the burden of proof for the first four steps. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the burden at any of those steps, the claimant is not disabled. Id.; Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987).
The Commissioner bears the burden of proof at step five of the process, where the Commissioner must show the claimant can perform other work that exists in significant numbers in the national economy, "taking into consideration the claimant's residual functional capacity, age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999). If the Commissioner fails to meet this burden, the claimant is disabled. Bustamante, 262 F.3d at 954 (citations omitted).
II. THE ALJ'S DECISION
The ALJ applied the five-step sequential evaluation process to determine if Plaintiff is disabled. (Tr. 41-54.) At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since November 21, 2012, the alleged disability onset date. (Tr. 44.) At step two, the ALJ determined that Plaintiff suffered from the following severe impairment: "[G]eneralized anxiety disorder, adjustment disorder, persistent depressive disorder, endometriosis, headaches, thrombotic thrombocytopenic purpura, obesity, and shoulder abnormality." (Tr. 44.) At step three, the ALJ concluded that Plaintiff did not have an impairment that meets or equals a listed impairment. (Tr. 44.) The ALJ then concluded that Plaintiff had the residual functional capacity ("RFC") to perform light work that: (1) involves "simple, routine tasks" and no more than occasional crawling, kneeling, climbing of ramps and stairs, and reaching with the right, dominant upper extremity; and (2) does not involve climbing ladders, ropes, or scaffolds or exposure to hazards (i.e., open machinery or unprotected heights), extreme temperatures, excessive wetness or humidity, vibration, excessive noise, or pulmonary irritants. (Tr. 46.) At step four, the ALJ concluded that Plaintiff was unable to perform her past relevant work. (Tr. 52.) At step five, the ALJ concluded that Plaintiff was not disabled because a significant number of jobs existed in the national economy that she could perform, including work as a "Baker Worker/Conveyer Line," "Investigator, Dealer Accounts," and "Laminator Off-bearer." (Tr. 53.)
ANALYSIS
I. STANDARD OF REVIEW
The district court may set aside a denial of benefits only if the Commissioner's findings are "'not supported by substantial evidence or [are] based on legal error.'" Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). Substantial evidence is defined as "'more than a mere scintilla [of evidence] but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)).
The district court "cannot affirm the Commissioner's decision 'simply by isolating a specific quantum of supporting evidence.'" Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett, 180 F.3d at 1097). Instead, the district court must consider the entire record, weighing the evidence that both supports and detracts from the Commissioner's conclusions. Id. If the evidence as a whole can support more than one rational interpretation, the ALJ's decision must be upheld; the district court may not substitute its judgment for the judgment of the ALJ. Bray, 554 F.3d at 1222 (citing Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)).
II. DISCUSSION
In this appeal, Plaintiff argues that the ALJ erred by: (1) failing to provide clear and convincing reasons for discounting Plaintiff's symptom testimony; (2) failing to provide legally sufficient reasons for discounting the opinion of Plaintiff's treating physician, Dr. Drago, and in turn failing to account for Dr. Drago's opinion in formulating the RFC; and (3) failing fully to develop the record. (Pl.'s Opening Br. at 19, 24, 27.) As explained below, the ALJ's decision is based on legal error and not supported by substantial evidence. In addition, Plaintiff satisfies all three conditions of the credit-as-true rule and a careful review of the record discloses no reasons seriously to doubt that Plaintiff is disabled. Accordingly, the Court recommends that the district judge reverse the Commissioner's decision and remand this case for an award of benefits. /// ///
A. Plaintiff's Symptom Testimony
1. Applicable Law
The Ninth Circuit has "established a two-step analysis for determining the extent to which a claimant's symptom testimony must be credited[.]" Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). "First, 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.'" Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014) (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). Second, "[i]f the claimant meets the first test and there is no evidence of malingering, the ALJ can only reject the claimant's testimony about the severity of the symptoms if she gives specific, clear and convincing reasons for the rejection." Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation and quotation marks omitted).
Under Ninth Circuit case law, clear and convincing reasons for rejecting a claimant's subjective symptom testimony "include conflicting medical evidence, effective medical treatment, medical noncompliance, inconsistencies in the claimant's testimony or between her testimony and her conduct, daily activities inconsistent with the alleged symptoms, and testimony from physicians and third parties about the nature, severity and effect of the symptoms complained of." Bowers v. Astrue, No. 11-cv-583-SI, 2012 WL 2401642, at *9 (D. Or. June 25, 2012) (citing Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008), Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007), and Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997)).
2. Application of Law to Fact
In this case, there is no evidence of malingering and the ALJ determined that Plaintiff has provided objective medical evidence of an underlying impairment which might reasonably produce the pain or symptoms alleged. (See Tr. 47, indicating that the ALJ found that Plaintiff's "medically determinable impairments could reasonably be expected to cause some of the alleged symptoms to some degree"). Accordingly, the ALJ was required to provide clear and convincing reasons for discrediting Plaintiff's testimony. See Ghanim, 763 F.3d at 1163. The ALJ failed to do so.
a. Effective Medication
As an initial matter, the ALJ discounted Plaintiff's testimony on the ground that her impairments can be controlled effectively with medication. (See Tr. 47-49, stating that Plaintiff's "headaches were well-controlled with medication," "medication management . . . was largely successful in controlling" Plaintiff's mental health symptoms, the "effectiveness of medication" was considered in evaluating Plaintiff's symptom testimony, Plaintiff had a "serious episode" of TTP but her symptoms "resolved with treatment" and were "well-controlled with the plasma exchanges and medication," Plaintiff's "migraines were well-controlled with medication," and Plaintiff's mental impairments "were well-controlled with medication"). The fact that a claimant's impairments can be controlled effectively with medication is a clear and convincing reason for discounting her testimony. See Ash v. Berryhill, 676 F. App'x 632, 632-33 (9th Cir. 2017) (holding that the ALJ met the clear and convincing reasons standard and noting that the ALJ cited evidence that the claimant's medications had been effective in controlling her symptoms). Substantial evidence, however, does not support discounting Plaintiff's testimony on this ground.
In support of his finding that Plaintiff's headaches were well-controlled by medication, the ALJ cited Exhibit 13F at 27 and 31 and Exhibit 18F at 27, 113, and 171. (Tr. 47, 49.) These exhibits reveal that: (1) in late 2012, around the time of Plaintiff's first serious TTP episode, Dr. Shalini Jacob referred to Plaintiff's headaches as "resolved" on a "[p]roblem list" (Tr. 2160); (2) on November 8, 2013, Dr. Drago observed that Plaintiff was "[s]till having migraines" three to four times per week that were "usually aborted with sumatriptan or Phenergan" (Tr. 1917); (3) on January 3, 2014, Dr. Drago noted that Plaintiff's headaches were "better controlled on 20 mg of amitriptyline at night," but Plaintiff still noticed "recurrence of mild daily headache in the later hours with prolonged sleep latency" and wanted to increase the dosage of her headache medication (Tr. 1913; see also Tr. 1916, adding on January 3, 2014, that Plaintiff suffers from chronic daily headache/transformed migraine and was "[d]oing better on maintenance" headache medication, but Plaintiff was "still not headache free" and thus Dr. Drago agreed to increase the dosage of Plaintiff's medication); and (4) on October 6, 2015, an unnamed OHSU provider noted that Plaintiff's headache medication resulted in "some improvement" in the frequency of her headaches, Plaintiff "[p]reviously had 1-2 migraines" a year but the "frequency increased dramatically after [her] TTP diagnosis," and "[t]ransformed migraine start[ed] [in] late 2013." (Tr. 2074, 2218.)
From the Court's perspective, the ALJ cited exhibits that fail to support his finding that Plaintiff's headaches were well-controlled by medication. Indeed, the ALJ cited exhibits indicating that, after Plaintiff experienced her first episode of TTP in late 2012, Plaintiff's headaches increased dramatically, Plaintiff was diagnosed with a transformed migraine, and Plaintiff experienced some improvement on headache medication, but she was still not headache free. Further, the record reveals that Plaintiff continued to complain about frequent headaches and reported that her medication was not effective in controlling her headaches. (See Tr. 651, indicating that Dr. Nelp asked Plaintiff about "what medicine relieves [her migraines] the best," and Plaintiff responded that "none of them do" and that as of April 26, 2016, she was still working with her doctors to find "a medication to help with it"; Tr. 2370, stating on May 15, 2015, that Plaintiff reported experiencing headaches "2-3 [times] per week" and that Plaintiff's headaches "got really bad on [a] beta blocker"; Tr. 2312, noting on February 18, 2015, that Plaintiff complained of headaches "occurring 3-4x a week despite the use of sumatriptan, antiemetics, and amitriptyline 50 mg"; Tr. 2243, observing on August 7, 2014, that Plaintiff complained of "nearly daily" headaches that were "worsening over the last 2 months," and that Plaintiff took headache medication as needed but her headaches did not "completely go[] away"; Tr. 2085, stating on June 19, 2014, that Plaintiff was "struggling with chronic headache (ongoing for the last 4 days)").
Transformed migraine is "a migraine condition that initially began as episodic migraine attacks, which then increase in frequency over a period of months to years." Graham v. Astrue, 840 F. Supp. 2d 1139, 1148 n.1 (S.D. Iowa 2012) (citation omitted). "Transformed migraines occur daily or almost daily and appear to be a mixture of tension type headaches and migraine attacks." Id. The transformation process "yields attacks that are frequently accompanied by phonophobia, photophobia, and nausea[.]" Id.; cf. Tr. 993-94 (noting that Plaintiff reported experiencing "generally migrainous headaches" that "were initially every other day" and "bec[ame] more frequent with light and sound sensitivity"); Tr. 671-74, 2243 (indicating that Plaintiff reported that her headaches make her nauseous and cause "sound sensitivity" and "light sensitivity").
Beta blockers are used to treat, among other conditions, "headaches/migraines." Phillippi v. Kelso, 15-5579, 2017 WL 3314934, at *7 n.8 (N.D. Cal. Aug. 3, 2017) (citation omitted).
In light of these medical records, substantial evidence does not support the ALJ's finding that Plaintiff's headaches/transformed migraines were effectively controlled with medication. See Stansfield v. Colvin, No. 12-10090, 2013 WL 6482780, at *6 (C.D. Cal. Dec. 10, 2013) ("[T]he ALJ's finding that plaintiff's pain was adequately controlled with medication is not supported by substantial evidence and, thus, is not a clear and convincing reason for rejecting her subjective pain allegations."); Garcia v. Astrue, No. 12-00992, 2013 WL 1797029, at *14 (S.D. Cal. Mar. 13, 2013) ("[W]hile there is evidence supporting a statement that medication temporarily helped [one of the impairments that the ALJ determined was severe], there is not substantial evidence supporting the ALJ's [ultimate] conclusion that [the claimant's] medication controlled her symptoms").
The ALJ also determined that Plaintiff's TTP symptoms "resolved with treatment" and "were well controlled with the plasma exchanges and medication." (Tr. 47, 49; see also Tr. 50 (finding that "symptoms of TTP were serious, but temporary, and did not cause significant long-term restrictions"). The record, however, reveals that Plaintiff has been diagnosed with recurrent/refractory TTP. (See Tr. 1218, noting that "[l]abs . . . show[ed] that [Plaintiff] has recurrent TTP"; Tr. 1447, stating that Plaintiff has a "history of recurrent TTP/refractory TTP"; Tr. 1913, observing that Plaintiff has a history of "refractory idiopathic TTP"; Tr. 2033, noting on January 13, 2016, that Plaintiff's "medical records indicate that [she] has refractory idiopathic TTP"). In other words, Plaintiff's TTP does not resolve with treatment and is likely to occur again. (See Tr. 1145, observing that "[p]ersistence of autoantibody during symptomatic remission of TTP suggests an[] increased risk for subsequent clinical relapse"; Tr. 1411, noting in December 2012 that Plaintiff "relapsed" and "[r]estarted plasma exchange"; see also Pl.'s Opening Br. at 7-8, stating that Plaintiff recently relapsed again and suffered a TTP-related stroke); Wilburn v. Cleveland Psychiatric Inst., 743 N.E.2d 515, 516 (Ohio Ct. App. 2000) (stating that TTP is "a blood disorder that causes strokes"). Further, the record reveals that Plaintiff's treating physician, Dr. Wilson, noted that she "[p]resumed" Plaintiff's headaches are a central nervous system "symptom of TTP." (Tr. 2075); see also Gulino v. Zurawski, 43 N.E.3d 1102, 1107 (Ill. Ct. App. 2015) (noting that TTP patients can show "neurological symptoms like confusion or headaches"). As discussed above, Plaintiff's headaches are not well-controlled by medication.
Based on this record, the Court concludes that substantial evidence does not support the ALJ's finding that Plaintiff's TTP symptoms resolved with treatment or were well-controlled by medication.
Finally, the ALJ cites Exhibit 18F (i.e., 366 pages of OHSU records from June 19, 2014, to May 15, 2015) in support of his finding that Plaintiff's mental health symptoms are "well-controlled with medication." (Tr. 49.) Exhibit 18F reveals that Plaintiff visited Dr. Drago on June 19, 2014, Dr. Drago assessed Plaintiff's depression and anxiety using questionnaires, Dr. Drago stated that Plaintiff was "still struggling with quite severe symptoms" of mixed anxiety/depression, which were "worsening despite introduction and up-titration of sertraline," Dr. Drago increased Plaintiff's dosage of sertraline, Dr. Drago "[s]trongly encouraged" Plaintiff to "find a counselor once financially feasible," and Dr. Drago stated that "counseling would be ideal" for Plaintiff, but it was "not readily available given her tenuous financial situation." (Tr. 2088.) Exhibit 18F also reveals that on March 27, 2014, Dr. Drago answered "No" regarding whether Plaintiff's mixed anxiety/depression was resolved. (Tr. 2082.) In addition, Exhibit 18F reveals that on August 8, 2014, Dr. Wilson referred to Plaintiff's mixed anxiety/depression as an "ongoing" and "prominent" issue. (Tr. 2250; see also Tr. 672, indicating that Plaintiff testified that her anxiety medication "doesn't relieve [her anxiety] completely").
Given this record, substantial evidence does not support the ALJ's finding that Plaintiff's mental health symptoms were well-controlled by medication. See Garrison, 759 F.3d at 1017 ("As we have emphasized while discussing mental health issues, it is error to reject a claimant's testimony merely because symptoms wax and wane in the course of treatment. Cycles of improvement and debilitating symptoms are a common occurrence, and in such circumstances it is error for an ALJ to pick out a few isolated instances of improvement over a period of months or years and to treat them as a basis for concluding a claimant is capable of working.").
b. Inconsistent Statements
The ALJ also discounted Plaintiff's testimony on the ground that she provided inconsistent statements regarding her symptoms, which is a clear and convincing reason for discounting a claimant's testimony. See Frost v. Berryhill, 727 F. App'x 291, 295 (9th Cir. 2018) (holding that the ALJ met the clear and convincing reasons standard by, among other things, identifying "inconsistent statements" the claimant made regarding her symptoms). In this case, however, substantial evidence does not support the ALJ's discount on this ground.
The ALJ noted, by way of example, that Plaintiff "inconsistently reported her migraine symptoms." (Tr. 49.) In support of this finding, the ALJ noted that Plaintiff testified at the hearing that her migraines are "always present" and her medication is "not working," yet the record showed that Plaintiff "only had one or two [headaches] per year" and that Plaintiff "reported relief from her medications." (Tr. 49.) Plaintiff reported that she experienced one to two migraines a year pre-TTP diagnosis, but she also reported that the frequency increased dramatically post-TTP diagnosis. (Tr. 2074, 2218.) As discussed above, Plaintiff complained frequently about her headaches and the ineffectiveness of her medication. Accordingly, the ALJ erred by focusing on reports regarding the period predating Plaintiff's TTP diagnosis and exaggerating the degree to which Plaintiff obtained relief from her headache medication. (See also Tr. 650-51, 671, noting that Plaintiff testified the "migraines are always present" and none of her medications relieve her pain, but Plaintiff later explained that her headaches arrive at irregular intervals and medications help "a small amount, but do not make it go away").
By way of further example, the ALJ noted that Plaintiff testified at the hearing that she was "currently seeing a doctor every month," which was "inconsistent with the record." (Tr. 50.) The record shows that Plaintiff has made regular (albeit not monthly) visits to the doctor in recent years, and that Plaintiff is supposed to be participating in monthly medical appointments. (See Tr. 2312, indicating that Dr. Wilson noted on February 18, 2015, that Plaintiff's TTP labs were due that day and Dr. Wilson was "under the impression that she should be getting these labs monthly"). The record, however, also reveals Plaintiff's ability to meet these monthly demands is impaired by the fact that she "hasn't been able to get a ride to come" from Newberg to OHSU. (Tr. 2312, 2341; cf. Tr. 1917, noting that Plaintiff sold her "car recently to have money to pay their rent"). Given Plaintiff's financial situation and her regular visits to the doctor, the foregoing "inconsistency" was not a clear and convincing reason to discount Plaintiff's testimony. See also Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (stating that "'benefits may not be denied because of the claimant's failure to obtain treatment he cannot obtain for lack of funds'") (citation omitted).
c. Treatment Noncompliance
The ALJ also discounted Plaintiff's testimony based on her "reluctance to follow treatment recommendations." (Def.'s Br. at 3, citing Tr. 47, stating that Plaintiff was "quite reluctant to use the prescription [headache] medication" and that "[t]his is inconsistent with the degree of limitation asserted, indicating the [headache] condition might not be as bothersome as asserted"). The ALJ cited Exhibit 13F at 33 and 42 in support of his treatment noncompliance finding. (Tr. 47.) These portions of Exhibit 13F show that on September 13 and November 8, 2013, Dr. Drago noted that Plaintiff had "been quite reluctant to try a preventative" headache medication, but Dr. Drago also observed on November 8, 2013, that Plaintiff was "much more open to that recommendation today" and thus Dr. Drago prescribed Plaintiff amitriptyline. (Tr. 1919, 1928.) Several years have now passed and Plaintiff continues to use amitriptyline. (See Tr. 651, indicating that Plaintiff testified during the April 2016 hearing that she is still "taking amitriptyline"). Considering Plaintiff's prolonged use of amitriptyline and the ALJ's failure to consider whether other factors may have contributed to Plaintiff's initial reluctance to use a prescription headache medication (i.e., an inability to afford pharmaceuticals or concerns about medication side effects following Plaintiff's TTP diagnosis and relapse), the Court concludes that treatment noncompliance was not a clear and convincing reason for discounting Plaintiff's testimony. (See also Tr. 1920-21, 1926, noting in September and October 2013 that Plaintiff's family did not have "enough money to pay their bills," Plaintiff was "able to access a resource to assist with her energy bill," Plaintiff's "limited financial means" prevented her from pursuing her "interest[]" in outpatient mental health counseling, and Plaintiff's "financial issues are significant").
d. Conclusion
For these reasons, the ALJ failed to provide clear and convincing reasons, supported by substantial evidence, for discounting Plaintiff's symptom testimony. (See also Def.'s Br. at 2-6, citing Plaintiff's "reported activities" as the only other "valid reason[]" for discounting Plaintiff's testimony).
B. Medical Opinion Evidence
1. Applicable Law
"There are three types of medical opinions in social security cases: those from treating physicians, examining physicians, and non-examining physicians." Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009) (citing Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). In the event "a treating or examining physician's opinion is contradicted by another doctor, the '[ALJ] must determine credibility and resolve the conflict.'" Id. (citation omitted). "An ALJ may only reject a treating physician's contradicted opinions by providing 'specific and legitimate reasons that are supported by substantial evidence.'" Ghanim, 763 F.3d at 1161 (citation omitted).
"An ALJ can satisfy the 'substantial evidence' requirement by 'setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.'" Garrison, 759 F.3d at 1012 (quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). Merely stating conclusions is insufficient: "The ALJ must do more than state conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct." Id. "[A]n ALJ errs when he rejects a medical opinion or assigns it little weight while doing nothing more than ignoring it, asserting without explanation that another medical opinion is more persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis for his conclusion." Id. at 1012-13 (citing Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996)).
2. Application of Law to Fact
Plaintiff argues that the ALJ failed to provide legally sufficient reasons for discounting the opinion of her treating physician, Dr. Drago. Dr. Drago's opinion conflicted with the opinions of the state agency record reviewers, none of whom opined that Plaintiff suffers from limitations that would support a finding of disability. Therefore, the ALJ needed to provide specific and legitimate reasons for discounting Dr. Drago's opinion. See Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) ("[I]n the case of a conflict 'the ALJ must give specific, legitimate reasons for disregarding the opinion of the treating physician.'") (citation omitted); Killian v. Barnhart, 226 F. App'x 666, 668 (9th Cir. 2007) ("Killian's contention that the ALJ erred when he discounted her treating physician's opinion is flawed because the treating physician's opinion conflicted with that of a nonexamining physician, and the ALJ supported his decision with specific and legitimate reasons."). The ALJ failed to do so here.
The ALJ rejected Dr. Drago's opinion on the ground that "[i]t was heavily reliant on the claimant's symptom reports, which can be given little weight." (Tr. 52.) This reason fails because, as discussed, the ALJ failed to provide clear and convincing reasons for discounting Plaintiff's testimony. See Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014) (same). Accordingly, the Court concludes that the ALJ erred in discounting Dr. Drago's opinion on this ground.
The ALJ committed several other errors in discounting Dr. Drago's opinion. For example, the ALJ rejected Dr. Drago's opinion in favor of Dr. Barsukov's opinion because Dr. Barsukov purportedly "has a greater knowledge of Social Security disability programs and has a greater specialty in this area." (Tr. 51.) Presumably, the ALJ is referring to the fact that Dr. Barsukov has been consulted in other Social Security cases. Social Security regulations state that, in weighing medical opinions, it is appropriate to consider "the amount of understanding of our disability programs and their evidentiary requirements that a medical source has." 20 C.F.R. § 416.927(c)(6). Nothing in the record, however, indicates that Dr. Barsukov has a greater understanding of disability programs and their evidentiary requirements than Dr. Drago. Further, Plaintiff's counsel explained to Dr. Drago what it means to be disabled for Social Security purposes and Dr. Drago's opinion addressed Plaintiff's work-related abilities. (See Tr. 2021-26.) Accordingly, the ALJ erred in discounting Dr. Drago's opinion on this ground. See Gutierrez v. Comm'r Soc. Sec. Admin., No. 15-1439, 2016 WL 1305096, at *2 (C.D. Cal. Apr. 1, 2016) ("The record contains no substantial evidence regarding [the treating physician's] familiarity or unfamiliarity with [Social Security] 'disability guidelines.' More fundamentally, even total ignorance of the law would have no logical impact on the validity of [the physician's] opinions regarding Plaintiff's functional abilities, such as Plaintiff's tolerances for sitting, standing and walking.").
The ALJ also rejected Dr. Drago's opinion in favor of Dr. Nelp's opinion because "Dr. Nelp had an advantage of reviewing more records than Dr. Drago" and, therefore, "had a longitudinal perspective that she did not." (Tr. 52.) Dr. Nelp testified that he reviewed Exhibits 1E through 15E and 1F through 17F (Tr. 650), which consist primarily of OHSU treatment records from November 21, 2012 (i.e., the alleged onset date and the day that Plaintiff was transferred via ambulance to OHSU to be treated by a TTP specialist) through May 26, 2014. (See Ct. Tr. Index at 2-4; see also Tr. 646, 670, indicating that at the time of the hearing and Dr. Nelp's testimony, the "last clinic record" on file was an OHSU record from "May of 2014," because Plaintiff's counsel was still in the process of obtaining the updated medical records from OHSU). It is undisputed that: (1) Dr. Drago, an OHSU treating physician, "formed her opinion after monthly observations that begin in proximity to TTP onset and followed closely multiple medication trials" (Pl.'s Opening Br. at 25); and (2) Dr. Drago continued to treat Plaintiff until August 2014. (Tr. 2021.) Given the length of Dr. Drago's treating history and the fact that Dr. Drago is familiar with most of the records that Dr. Nelp reviewed, the Court concludes that the ALJ erred in discounting Dr. Drago's opinion on the ground that Dr. Nelp had "a longitudinal perspective" that Dr. Drago did not. See Garrison, 759 F.3d at 1012-13 (noting that treating physicians are "presumptively entitled" to greater deference under Ninth Circuit case law and Social Security regulations and that a treating physician's opinion is "still owed deference" even when it is contradicted); id at 1012 n.11 (noting that in assessing how much weight to give a medical opinion, ALJs must consider, among other things, the length of the treatment relationship).
In addition, the ALJ supported his decision to discount Dr. Drago's opinion by noting that Plaintiff "was not engaging in specialized mental health treatment despite her symptom reports." (Tr. 52.) As discussed, the record demonstrates that Dr. Drago strongly encouraged Plaintiff to participate in mental health counseling and that Plaintiff was interested in mental health counseling, but it also demonstrates that it was not "financially feasible" for Plaintiff to pursue counseling. (See, e.g., Tr. 2088, indicating that Dr. Drago "strongly encouraged" Plaintiff "to find a counselor once financially feasible" and believed "counseling would be ideal for her"). Accordingly, considering Plaintiff's financial issues, Plaintiff's failure to engage in specialized mental health treatment was not a specific and legitimate reason for discounting Dr. Drago's opinion.
Finally, it is noteworthy that Dr. Drago opined that: (1) due in part to chronic headaches impairing Plaintiff "ability to focus" and "significantly" impairing her ability to concentrate, Plaintiff could not stay on task consistently for more than twenty percent of a workday or workweek; and (2) due to the same "focus" and "concentration impairment," Plaintiff could not perform even simple, routine, and repetitive tasks up to ten percent of a workday or workweek. (Tr. 2023-24.) The VE testified that the first limitation would prevent Plaintiff from performing the unskilled jobs the VE and ALJ identified as suitable for Plaintiff's RFC, but the second limitation would not. (See Tr. 682, 685.) The ALJ noted that these limitations are "somewhat consistent" with Plaintiff's "established diagnoses," but the ALJ credited only the second limitation, finding it "consistent with the vocational expert's testimony as to what is allowed." (Tr. 52.) If Plaintiff's focus and concentration deficits flow, in part, from the same impairment and are "somewhat consistent" with Plaintiff's established diagnoses, it was arbitrary to credit only the limitation that would not prevent Plaintiff from performing the jobs the ALJ identified as suitable.
For these reasons, the ALJ's rejection of Dr. Drago's opinion is not supported by substantial evidence.
C. Remedy
"Generally when a court of appeals reverses an administrative determination, 'the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.'" Benecke, 379 F.3d at 595 (citing INS v. Ventura, 537 U.S. 12, 16 (2002)) However, in a number of Social Security cases, the Ninth Circuit has "stated or implied that it would be an abuse of discretion for a district court not to remand for an award of benefits" when three conditions are met. Garrison, 759 F.3d at 1020 (citations omitted). Specifically, the following "credit-as-true" criteria must be met before a district court may remand for an award of benefits: (1) "the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion," (2) "if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand," and (3) "the record has been fully developed and further administrative proceedings would serve no useful purpose." Id. Even when these "credit-as-true" criteria are satisfied, district courts retain the "flexibility to remand for further proceedings when the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the Social Security Act." Id.
Plaintiff satisfies all three conditions of the credit-as-true rule. First, as explained above, the ALJ failed to provide legally sufficient reasons for rejecting Plaintiff's testimony and Dr. Drago's opinion. Second, if this evidence is credited as true, the ALJ would be required to find Plaintiff disabled on remand. (See, e.g., Tr. 685, 688, stating that being off-task twenty percent of a workday would preclude Plaintiff from performing the jobs the ALJ identified as suitable for Plaintiff).
The Commissioner argues further proceedings would serve a useful purpose because there are conflicts that need to be resolved. (Def.'s Br. at 12.) In support of her argument, the Commissioner notes that Dr. Barsukov's opinion conflicts with Dr. Drago's opinion and that other evidence in the record contradicts Dr. Drago's opinion. (Def.'s Br. at 12.) "Although the Commissioner argues that further proceedings would serve the 'useful purpose' of allowing the ALJ to revisit the medical opinion[] and testimony that []he rejected for legally insufficient reasons," Ninth Circuit "precedent and the objectives of the credit-as-true rule foreclose the argument that a remand for the purpose of allowing the ALJ to have a mulligan qualifies as a remand for a 'useful purpose' under the . . . credit-as-true analysis." Garrison, 759 F.3d at 1021 (citation omitted). Finally, a careful review of the record discloses no reason seriously to doubt that Plaintiff is disabled. (See also Tr. 2026, indicating that Plaintiff's long-time treating physician, Dr. Drago, believes Plaintiff is "[v]ery credible"). Accordingly, the Court recommends that the district judge reverse the Commissioner's decision and remand for an award of benefits.
CONCLUSION
For the reasons stated, the Court recommends that the district judge REVERSE the Commissioner's decision and REMAND for an award of benefits.
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 22nd day of January, 2019.
/s/_________
STACIE F. BECKERMAN
United States Magistrate Judge