Opinion
CV-21-0155-PHX-DLR (JFM)
08-26-2022
Annalise Joy Sanchez, Plaintiff v. Commissioner of Social Security Administration, Defendant.
REPORT & RECOMMENDATION
JAMES F. METCALF, UNITED STATES MAGISTRATE JUDGE
Plaintiff seeks review under 42 U.S.C. § 405(g) of the final decision of the Commissioner of Social Security who denied her applications filed September 20, 2017 and March 22, 2018 for disability insurance benefits and supplemental security income benefits under the Social Security Act.
This matter is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(10), Local Rules of Civil Procedure.
A. SUMMARY OF THE CASE
Plaintiff has asserted that she became disabled as of January 1, 2018, based on onset dates of June 6, 2017 through January 1, 2018 primarily due to fibromyalgia, postural orthostatic tachycardia syndrome (“POTS”), a depressive disorder, an anxiety disorder, and PTSD. She has past relevant work as a cashier clerk, coffee maker, cook, and customer service representative.
In a decision issued August 11, 2020, the ALJ found Plaintiff generally eligible for benefits given her date last insured, and non-employment. The ALJ found Plaintiff had the following severe impairments: postural orthostatic tachycardia syndrome (POTS); fibromyalgia; major depressive disorder; generalized anxiety disorder; post-traumatic stress disorder. The ALJ also found the following non-severe impairments: migraine headaches; Ehlers-Danlos syndrome (“EDS”). The ALJ found no combination of impairments that established disability under the listings. The ALJ found Plaintiff had the residual functional capacity to perform work at all exertional levels, except she had the following additional limitations:
Plaintiff describes POTS as “an inability to tolerate a standing position as a result of a sudden increase in heart rate when rising from a seated or recumbent position,” and leading to various symptoms, including syncope (fainting). (Doc. 34 at 3, n. 4.)
Plaintiff describes EDS as a “rare, inherited connective tissue disorder” with symptoms such as “[j]oint hypermobility with dislocations (such as during childbirth)..,[s]kin disorders includ[ing] velvety, loose, and easily bruised skin,” “[v]ascular disorders and .kyphoscoliosis.” (Doc. 34 at 4, n. 5.)
Specifically, she can never climb ladders, ropes, or scaffolds, and can never work at unprotected heights or around moving mechanical parts. She is able to perform simple, routine tasks, and is able to make simple work-related decisions.(AR 21.)
The Administrative Record (Doc. 20) is referenced herein as “AR”, and the labelled Exhibits included in the Administrative Record are referenced herein as “Exh. .”
Plaintiff's Amended Opening Brief (Doc. 34) argues that the ALJ erred in: (a) finding without substantial evidence that Plaintiff's migraines and EDS were non-severe impairments; (b) rejecting Plaintiff's treating providers' opinions without providing an explanation supported by substantial evidence, failing to explain the determination of the supportability and consistency factors; (c) rejecting Plaintiff's symptoms testimony by applying the wrong standard and without clear and convincing reasons supported by substantial evidence. Plaintiff seeks a reversal and remand for an award of benefits.
After briefing was completed, the Court invited amendments to the briefs in light of the recent decision in Woods v. Kijakazi, - - - F.4th - - -, No. 21-35458, 2022 WL 1195334 (9thCir. Apr. 22, 2022) adopting significant changed in the Ninth Circuit's disability jurisprudence. (Order 5/18/22, Doc. 33.) Plaintiff filed a Motion to Amend (Doc. 31), which was granted, filing her Amended Opening Brief (Doc. 34). (Order 5/18/22, Doc. 33.) The Amended Answering Brief (Doc. 35) and Amended Reply Brief (Doc. 39) ensued.
The Commissioner's Amended Answering Brief (Doc. 35) argues: (a) the non-severe impairments decision was adequately supported, and any error was harmless; (b) new standards apply to the treating provider opinions, and the ALJ properly applied them; and (c) in partially rejecting Plaintiff's symptoms testimony, the ALJ properly relied on inconsistencies with objective medical evidence, effective treatment, and activities of daily living. The Commissioner argues neither a reversal nor a remand for an award of benefits is justified.
Plaintiffs Amended Reply Brief (Doc. 39) argues: (a) the Step Two finding of non-severe impairments was harmful because the effect of those impairments on the Step Four RFC finding precluded employment; (b) the Commissioner relies on post hoc citations to the record to support the ALJ's rejection of treating provider opinions, and fails to demonstrate the ALJ found specific and legitimate reasons for doing so; and (c) the Commissioner misapplies a “good reasons” standard to the symptoms testimony, and argues on the basis of post hoc citations to the record, and fails to respond to Plaintiff's challenges to the ALJ's reasons.
B. STANDARDS OF REVIEW
Bases for Reversal - The court may set aside the Commissioner's disability determination only if the determination is not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007).
The Supreme Court has recently summarized the “substantial evidence” standard:
The phrase “substantial evidence” is a “term of art” used throughout administrative law to describe how courts are to review agency factfinding. Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains sufficient evidence to support the agency's factual determinations. And whatever the meaning of “substantial” in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this Court has said, is more than a mere scintilla. It means-and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (quotations, alterations and citations omitted).
Limited to ALJ's Reasoning - Neither the parties nor the Court can manufacture their own reasons to support the decision made by the ALJ. “We review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014); see also SEC v. Chenery Corp., 318 U.S. 80, 87 (1943) (“The grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.”).
Not Limited to ALJ's Record References - Plaintiff argues that the Commissioner improperly attempts to provide post hoc references to the record to provide the substantial evidence to support the ALJ's reasons. Plaintiff offers no authority to support that position.
The ALJ is not mandated to provide record citations, but rather to provide reasons. So long as the purported “facts” underlying those reasons find support in the record, the ALJ's decision must be sustained. “Thus, it is clear that both this court and the district court may look to any evidence in the record regardless of whether it has been cited by the Appeals Council.” Walker v. Sec'y of Health & Hum. Servs., 884 F.2d 241, 245 (6th Cir. 1989). See also 4 Soc. Sec. Law & Prac. § 55:67 (2022). Indeed, the reviewing court may reverse “only if the ALJ's decision was not supported by substantial evidence in the record as a whole.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (emphasis added).
To be sure, a lack of references to the record may make it impossible for the court to identify the “facts” relied on, and thus require reversal. “If the reviewing court has no way of evaluating the basis for the ALJ's decision, then ‘the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.'” Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)). See also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“We are constrained to review the reasons the ALJ asserts. It was error for the district court to affirm the ALJ's credibility decision based on evidence that the ALJ did not discuss.” (emphasis added)).
Thus, a decision supported only by a bare reference to “the record” would justify remand, even if some portion of the record might support the decision. But this is not due to the lack of citations, but rather to the lack of findings of facts to support the reasons. Conversely, a decision supported by a reference to “discrepancies between witness A and witness B” may be sufficient, but only if the record makes it possible to clearly discern the discrepancies being referenced, e.g. where the statements are limited and the distinctions clear. A decision supported by a reference to “witness A saying ‘black' is inconsistent with witness B saying ‘blue'” would likely be sufficient, even if there were no references to the record where the statements are contained.
“Though the ALJ need not address every piece of evidence, he must articulate, at some minimum level, his analysis of the record so that the reviewing court can follow his reasoning.” Johansen v. Barnhart, 314 F.3d 283, 287 (7th Cir. 2002).
Harmless Error - “A decision of the ALJ will not be reversed for errors that are harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). An error is harmless if there remains substantial evidence supporting the ALJ's decision and the error does not affect the ultimate nondisability determination. Molina, 674 F.3d at 1115. An error is harmless if it either “occurred during a procedure or step the ALJ was not required to perform,” or if it “was inconsequential to the ultimate nondisability determination.” Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). Harmlessness does not require the court to determine what ultimate decisions the ALJ would have made if the error had not been committed, but only to ask whether the remaining bases for the decision are sufficient to support the decision. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008).
However, the harmless error analysis is not an invitation for the Commissioner or the Court to invent reasons the ALJ could have relied upon to reach a conclusion. Rather, the Court is limited to looking to other bases actually relied upon by the ALJ and determining whether they were independently sufficient to support the decision. Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006).
C. NON-SEVERE IMPAIRMENTS
1. Step Two Error Harmless
In her first ground for relief, Plaintiff argues the ALJ erred at Step Two in finding her migraines and EDS were non-severe impairments without substantial evidence to support that finding.
In particular, Plaintiff argues error occurred at Step Two because the ALJ:
(a) misstated a treating physician's report on migraines;
(b) relied on limited occurrences of a specific type of headache (“stabbing balloon pain”);
(c) relied on the absence of specific migraine symptoms (“without aura, not intractable, and without status migrainosus”);
(d) relied on effective migraine treatment with Emgality, which became ineffective;
(e) relied on effective migraine treatment with Botox and nasal spray, which was only partially effective;
(f) relied on normal exam findings regarding EDS when the record reflected chronic symptoms;
(g) relied on conservative treatment for EDS, where the record reflected physical therapy became ineffective, and injections were provided; and
(h) ignored the relationship between Plaintiff's POTS (which was found severe) and Plaintiff's EDS.
The ALJ opined:
In addition to the severe impairments above, the record indicates the claimant has the following non-severe impairments: migraine headaches; Ehlers-Danlos syndrome (“EDS”) (see, e.g., 8F at 12; 20F at 11). However, as discussed below, the objective evidence shows these conditions and their symptoms are mild and occur only intermittently, are well controlled with conservative treatment, and do not present more than minimal functional limitations.
(AR 19.)
The Commissioner argues any such error was harmless because the application was not denied at Step Two, and in any event the ALJ's decision was adequately supported.
Plaintiff replies that the Commissioner fails to adequately address her challenges to the severity determination.
The classification of impairments at step two as severe or non-severe is a screening device for weak claims, and is not controlling of the remainder of the disability determination. Buck v. Berryhill, 869 F.3d 1040, 1047-1048 (9th Cir. 2017). Indeed, the regulations require consideration of both severe and non-severe impairment at Steps Three (listings) and Four (residual functional capacity). See 20 C.F.R. §§ 404.1526(b)(3) and (c) (Step Three); 20 C.F.R. § 404.1545(a)(2) (Step Four). But see Mercado v. Berryhill, 2017 WL 4029222, at *6 (N.D. Cal. Sept. 13, 2017) (despite Buck, actual failure to consider all impairments (including non-severe ones) at subsequent steps can amount to error).
Accordingly, unless at step two an ALJ fails to find no impairment(s) severe and thus concludes at this step that the claimant in not disabled, any error in finding a particular impairment to be non-severe is harmless.
Plaintiff does not argue error at Steps Three or Four regarding these conditions, only error when making the severe/nonsevere determination required at Step Two. (See Opening Brief, Doc. 34 at 11 (“The ALJ committed materially harmful error by finding Sanchez's migraines and EDS were not severe impairments.”), and 15 (“The ALJ committed materially harmful error by finding Sanchez's migraines and EDS were not severe impairments, when the record clearly showed Sanchez's migraine headaches and EDS would cause more than a minimal effect on her ability to sustain work.”); and Reply Brief, Doc. 39 at 4 (“ALJ committed materially harmful error by finding Sanchez's migraine headaches and EDS were not severe impairments”), and 6 (“ALJ erred when finding Sanchez's migraines and EDS were not severe”). The undersigned honors that tactical choice.
Because Plaintiff's application was not rejected at Step Two, any error at Step Two was harmless, and does not justify reversal.
2. No Error at Step Two or Four
Even if Plaintiff's Opening Brief could be understood to assert error at Step Four in considering her migraines and EDS, the undersigned would find no error.
The ALJ explicitly discussed neither migraines nor EDS at Step Four. At most, he referenced various physicians as noting headaches and mental fatigue as functionally limiting conditions. (AR 26.) But mental fatigue has no direct correlation to these conditions, and as discussed hereinafter, Plaintiff and the ALJ distinguished “headaches” from migraines.
A reasonable inference is that the ALJ's Step Four analysis relied on the conclusions at Step Two (and the underlying reasoning) that “the objective evidence shows these conditions and their symptoms are mild and occur only intermittently, are well controlled with conservative treatment, and do not present more than minimal functional limitations.” (AR 19.) It is reasonable to infer that his silence on the topic at Step Four was a ratification of that earlier finding. So long as that finding was supported by substantial evidence, it must be upheld.
a. Findings re Migraines
To support a finding of no severe impairments from the migraines, the ALJ opined:
During a July 2018 treatment visit, the claimant reported her migraine headaches only occurred infrequently, once or twice per month (9F at 13). Providers found her migraines were without aura, not intractable, and without status migrainosus (9F at 8). She reported prescription medication Emgality was helpful for her migraines, and that she had no migraines since starting the medication (9F at 7, 10). She reported she was still experiencing headaches with “stabbing ballooning pain” in her left eye radiating to her ear, but that these headaches were less severe and had only occurred “a couple of times” (9F at 7). She stopped taking Emgality because she felt it was causing weight gain and not helping as much; the record shows the claimant's body mass index increased from 19.6 to 21.6 while taking Emgality, still well within the normal range (20F at 10-11). She also reported that Botox injections and migranal nasal spray were effective at treating her migraines, reporting that migranal was helpful and that Botox decreased the severity of her migraines by at least 50 percent, with decreased utilization of medications (20F at 10).
(AR 19.)
(1). Reliance on Misstatement on Report on Migraines
The ALJ found: “During a July 2018 treatment visit, the claimant reported her migraine headaches only occurred infrequently, once or twice per month (9F at 13).” (AR 19.) Plaintiff argues that the referenced record does not support that finding. It is true that the record (a treatment note from neurologist Lockwood) observed “daily” headaches, but it also recorded that “[b]ad migraines” only occurred “1-2 times per month.” (AR 571.) Some might equate migraines and headaches. But this reference was from the “HPI” (history of present illness), not part of a diagnostic determination. And Plaintiff plainly considered headaches and migraines distinct maladies:
Q And Ms. Sanchez, what's the most significant health problem that's keeping you from working at this point, doing any of the kind of work you used to do or other kinds of work?
A I would say the migraines.
Q How often do you have -- well, let me ask you this. Do you have -- can you do differentiate between headaches and migraine headaches?
A I do.
Q How often do you have what you would just call a typical headache?
A A headache, I would say it's most days. It's more rare for me to not have a headache.
Q And what's different about a migraine headache versus a regular headache? A To me a headache is just some head pains that I'm able to mostly do what I need to do. And a migraines are the other symptoms like I have my neck pain, the room is spinning, light and sounds, they hurt my head more or make me somewhat nauseous, and movement just makes the pain and all the other symptoms worse.
(AR 47-48.)
Thus, while certainly the treatment note is open to other interpretations, the undersigned cannot say that the note cannot be fairly read as limiting the migraines severe enough to interfere with work to be limited to 1-2 times per month. Thus, there was substantial evidence to support this finding.
(2). Reliance on Limited “Stabbing Ballooning Pain” Headaches
The ALJ found: “She reported she was still experiencing headaches with ‘stabbing ballooning pain' in her left eye radiating to her ear, but that these headaches were less severe and had only occurred ‘a couple of times' (9F at 7).” Plaintiff argues this “the ALJ failed to show how that fact invalidated Sanchez's experience of chronic migraines.” (Doc. 34 at 12.) The referenced note (from Lockwood on 1/15/19) observed:
Emgality helpful for migraines. No migraines since starting. Still with headaches however that are less in severity. She has had stabbing ballooning pain in left eye that radiated to her ear.. .This has happened a couple of times.
(AR 565, Exh. 9F at 7.) In the same note, Lockwood noted: “Newer onset stabbing pain behind left eye”). (AR566, Exh. 9F at 8.) Read in context, the ALJ was not proposing the limited stabbing ballooning headaches as evidence of no migraines, but was merely recognizing that Plaintiff did continue to experience other types of headaches, but only sporadically.
(3). Reliance on Specific Types of Migraines
The ALJ found: “Providers found her migraines were without aura, not intractable, and without status migrainosus (9F at 8).” (AR 19.) Plaintiff does not argue the medical record did not reflect those findings, but asserts that the ALJ failed to explain how those terms of art showed no migraine headaches. The Commissioner concedes these terms were not defined, and then references other findings by the ALJ. Indeed, the Court is left at least partially to its own devices to ascertain the significance of these specifics of Dr. Lockwood's diagnosis. That there was no “aura” or “status migraonosus” may be momentous findings, but there is no way for this Court to reach that conclusion. Thus, these references provided no support for the ALJ's conclusion. Of course, they also do not refute it.
On the other hand, that migraines were not “intractable” does not require further explanation. That a condition is not intractable, i.e. it can be managed or controlled, is in the context of a disability determination sufficient explanation for finding it does not justify a reduction in RFC.
(4). Reliance on Emgality Treatment
The ALJ noted Plaintiff “reported prescription medication Emgality was helpful for her migraines, and that she had no migraines since starting the medication (9F at 7, 10)... She stopped taking Emgality because she felt it was causing weight gain and not helping as much; the record shows the claimant's body mass index increased from 19.6 to 21.6 while taking Emgality, still well within the normal range (20F at 10-11).” (AR 19.)
Plaintiff argues that the ALJ failed to address records showing that, although initially effective, the Emgality eventually stopped helping, and instead cherry picked a single record. The Commissioner argues the ALJ did not cherry pick, acknowledged that migraines continued, and discussed other effective treatments.
Indeed, the record cited by the ALJ regarding weight gain, etc., Exh. 20F at 10-11, a note from Dr. Lockwood from 9/18/19, identified that Emgality was amongst Plaintiff's “[f]ailed medications,” and prescribed continuing with botox treatments. (AR 692, Exh. 20F at 7.) However, 12/9/19 note from Dr. Lockwood reported that Plaintiff had stopped Emgality, but that and the following note indicated it continued as a current medication. (AR 686, 689, 692; Exh. 9F at 1, 4, 7.)
Had the ALJ stopped with finding that “Emgality was helpful” and Plaintiff “had no migraines since starting the medication,” then viewing the record as a whole there would not have been substantial evidence to support it. But the ALJ did not. Rather, he explicitly noted that Plaintiff had “stopped taking” it because, inter alia, it was “not helping as much.”
(5). Reliance on Partially Effective Treatment
The ALJ additionally supported the conclusion that the migraines were “well controlled” by referencing other forms of treatment: “She also reported that Botox injections and migranal nasal spray were effective at treating her migraines, reporting that migranal was helpful and that Botox decreased the severity of her migraines by at least 50 percent, with decreased utilization of medications (20F at 10).” (AR 19.)
Plaintiff argues that this was not a logical reason for applying no limitations because a reduction of 50% from earlier reports of daily migraines still showed debilitating migraines half the time, which was consistent with her testimony of 10-14 migraines per month, and alone supported a finding of disability. (Doc. 34 at 13-14.) But Plaintiff mixes apples and oranges. The 50% reduction referenced by the ALJ was not in frequency, but in severity. Indeed, that is what the referenced record reports. (Exh. 20F at 10 (“Migraines have decreased in severity by at least 50%”).)
The Commissioner replies with a circular argument pointing back to the ALJ's own conclusions on headaches and mental fatigue:
Additionally, the ALJ permissibly considered the medical opinion evidence and the effects of the migraine headaches at the later steps and found that Plaintiff's headaches or mental fatigue occurring more than four times per month and requiring more than two hours of rest on each occasion was unsupported by the longitudinal record because symptoms were intermittent (AR 19, 26). Thus, the claim that Plaintiff had 30 headache days per month was unsupported by the record (AR 705).
(Doc. 35 at 7.) However, the ALJ made no finding, at Step Two or Step Four, that Plaintiff was experiencing migraines (or even headaches) less than four times per month. At best, the ALJ had noted an instance in July 2018 when Plaintiff reported migraines “once or twice per month” or after starting Emgality “no migraines” (AR 19 (citing 9F at 13, 7).)
Nonetheless, Plaintiff argues this report was “cherry-picked,” and did not reflect the norm of Plaintiff's course of migraines. (Doc. 34 at 13.) To support this argument, Plaintiff references a treatment note from Dr. Moe from 3/29/19 which recorded that since transitioning to Emgality Plaintiff “has had some improvement in severe migraine symptoms” (although she still experienced daily “headaches”). (AR 589.) But this provided no clear evidence on the frequency of Plaintiff's migraines, as opposed to headaches. Nor did all the vast majority of Lockwood's other notes, both before and after the 3/29/19 note.
- At a visit on 9/18/19, Lockwood reported that with Botox injections on 7/9/19, “Migraines have decreased in severity by at least 50%, with decreased utilization of medication,” but noted Plaintiff wanted to stop Emgality due to weight gain, and she was seeking approvals for Migrainal. (AR 695.)
- At a visit on 7/22/19, Lockwood reported that with Botox injections on 7/9/19, “Migraines have decreased in severity by at least 50%,” and Emgality continued
to be helpful. (AR 697, 698.)
- At a visit on 7/9/19, Lockwood injected Plaintiff with Botox to treat her migraines. (AR 699.)
- At a visit on 5/1/19, Lockwood reported that with Botox injections on 4/3/19, “Migraines have decreased in severity by at least 50%,” and Emgality continued to be helpful. (AR 697, 698.)
- At a visit on 4/3/19, Lockwood injected Plaintiff with Botox to treat her migraines. (AR 703.)
- At a visit on 3/5/19, Lockwood reported that prior to using Emgality, Plaintiff would have “30/30 headache days per month, 24 hour duration. The Emgality was “very helpful” for the first two weeks, but daily headaches would return for the final two weeks before the next injection was due. (AR 705.)
- At a visit on 1/15/19, Lockwood report the elimination of migraines since staring Emgality, but continued headaches with less severity and occasional stabbing ballooning pain, and diagnosed Plaintiff with “chronic migraines.” (AR 565, 566.)
- At a visit on 12/11/8, Lockwood noted “daily headaches,” and complaints of ”headache/migraine,” and diagnosd Plaintiff with “chronic migraine” and noted reactions to her migraine medication, Almovig, and prescribed Emgality. (AR 567, 568.)
- At a visit on 12/7/18, Lockwood recorded only on Plaintiff's ongoing treatment for migraines. (AR 596.) Although identifying migraines as part of her medical history, that record did not even identify migraines as a problem addressed at the visit. (AR 596, 599.)
- At a visit on 9/11/18, Lockwood noted the history of “headache/migraines,” diagnosed “chronic migraines,” and noted that Almovig had not been “helpful yet,” but continued it. (AR 569-570.)
- At a visit on 8/20/18, Lockwood's associate, Dr. Moe, similarly reported on Plaintiff's migraine treatment, and the ongoing history of migraines, but did not
identify the migraines as a problem addressed. (AR 603, 604.)
- At a visit on 6/21/18, Lockwood merely referenced the history of migraines, (AR 607.)
- At a visit on 5/31/18, Lockwood's associate, Dr. Ross, merely referenced the history of migraines. (AR 614.)
- At a visit on 5/10/18, Lockwood's associate, Dr. Moe, merely recorded that Plaintiff had a history of migraines. (AR 619.)
Indeed, only two other notes by Lockwood addressed the frequency of migraines.
The first was from the visit on 7/12/18, (the note addressed hereinabove in Section C(2)(a)(1)) where Lockwood recorded “daily headaches for five years” and “Bad migraines 1-2 times per month.” Plaintiff was diagnosed with “Chronic migraine without aura, not intractable, without status migrainosus,” and started on Sumatriptan Succinate. (AR 571, 572.)
The second was from a visit on 12/9/19, where Lockwood noted: “With Botox, migraines have decreased in severity by at least 50% with decreased utilization of medications.” Even though Plaintiff had stopped Emgality, “she has had 3 migraines over the last month.” Migranal Solution was prescribed for her migraines. (AR 692, 693.)
Similarly, the records from other providers did not establish a greater frequency of migraines. Generally, they merely referenced “chronic” headaches or migraines, or just migraines. (See e.g. AR 772 (Woods, 6/8/20); AR 774 (Woods, 5/26/20); AR 784-785 (Woods, 4/29/20); (AR 789 (Woods, 4/7/20).)
In sum, Plaintiff fails to show that the ALJ misstated or cherry-picked records to show that her migraines were well-controlled and did not present more than minimal functional limitations, nor that the record as a whole did not provide substantial evidence to support the ALJ's findings.
b. Findings re EDS
The ALJ explained his findings regarding EDS:
Regarding EDS, the claimant alleged that she experienced dislocation of her knee, hip, and shoulder joints in disability forms (see, e.g., 2E at 2; 20E at 6). During physical examinations, she exhibited hyperextensible skin, passive dorsiflexion of the fifth finger, the ability to grasp her hands behind her back and perform a “reverse Namaste sign,” and “generalized hypermobility,” leading providers to diagnose her with EDS (8F at 9-10; 17F at 3). However, physical examinations were otherwise normal, showing normal strength, muscle tone, sensation, reflexes, coordination in the bilateral upper and lower extremities, as well as a normal gait (see, e.g., 7F at 24; 8F at 11; 17F at 3). With treating providers, she denied true joint dislocations, but instead reported loose joints in her shoulders, hips, and knees (17F at 1). Providers referred her to conservative treatment with physical therapy to treat this condition (17F at 1). Accordingly, the undersigned finds the claimant's migraines and EDS-either alone or in combination with other conditions-do not more than minimally affect her ability to perform basic work activities, and are therefore non-severe impairments.
(AR 20 (emphasis added).)
(1). Reliance on Normal Exam Findings and Conservative Treatment
Plaintiff argues the ALJ erred by relying on normal exam findings regarding EDS when the record reflected chronic pain from this condition, and a plethora of treatment attempts. (Doc. 34 at 14 (citing AR 625, 629-61, 664, 725-26).) The Commissioner argues that the ALJ's findings of normal exam results were well supported. (Doc. 35 at 8.) Plaintiff replies that the Commissioner omits records argued in the Opening Brief showing chronic pain, and treatment with medication, physical therapy, and injections. (Doc. 39 at 5.)
Plaintiff also argues the ALJ erred in relying on conservative treatment for EDS, where the record reflected physical therapy became ineffective, and injections were provided. (Doc. 34 at 14-15.) The Commissioner does not respond.
The ALJ found:
Regarding EDS, the claimant alleged that she experienced dislocation of her knee, hip, and shoulder joints in disability forms (see, e.g., 2E at 2; 20E at 6). During physical examinations, she exhibited hyperextensible skin, passive dorsiflexion of the fifth finger, the ability to grasp her hands behind her back and perform a “reverse Namaste sign,” and “generalized hypermobility,” leading providers to diagnose her with EDS (8F at 9-10; 17F at 3). However, physical examinations were otherwise normal, showing normal strength, muscle tone, sensation, reflexes, coordination in the bilateral upper
and lower extremities, as well as a normal gait (see, e.g., 7F at 24; 8F at 11; 17F at 3). With treating providers, she denied true joint dislocations, but instead reported loose joints in her shoulders, hips, and knees (17F at 1). Providers referred her to conservative treatment with physical therapy to treat this condition (17F at 1).
(AR 20.)
In support of her arguments, Plaintiff cites to the following records:
- At PT visits on 4/9/19, 3/14/19, 2/12/19, 2/5/19, 1/15/19, and 1/10/19 Bloom noted various pain (primarily in shoulders, hips and elbows) and problems with consistency in PT and short-term residual pain after PT, but occasional improvement with the PT. (AR 633-661.) On 4/24/19, Bloom discharged Plaintiff, noting consistent strength and mobility, but increased pain resulting from inconsistent visits. Plaintiff was discharged “to allow for her to attempt exercises to maintain function independently.” Bloom noted she was “independently able to perform complex an[d] simple exercises with little guidance. (AR 629-632.)
- At a 4/29/19 visit, Dr. Saperstein noted a history of pain in her “hips and shoulders,” and that physical therapy had been discontinued by the therapist. But she was observed to have full range of motion, full strength, but some shakiness with variable effort. Plaintiff was referred to Dr. Crincoli, a physical medicine physician, for pain management. (AR 625-626).
- At a visit on 6/10/19, with PA Hoffman, Plaintiff was diagnosed with hypermobility syndrome and recommended various assistive devices (gloves, padded steering wheel, braces, compression stockings) and “acet[aminophen] 650 mg TID, PRN” for pain. (AR 664-667.)
- At a visit on 10/16/19, NP Khalil noted the EDS diagnosis, and referral by rheumatology for hip bracing, a history of PT and referral to a joint specialist. The exam of extremities were normal, and musculoskeletal was recorded as “no Joint pain, no Joint swelling.” Nonetheless, Plaintiff was assessed with pain in her left shoulder, and referred for an MRI of it. Otherwise, she was prescribed
Vitamin D for her EDS, referred to the Mayo Clinic for evaluation by a genetic specialist on the EDS, and given an injection of Kenalog. (AR 725-726.)
Rather than detracting form it, these records provide substantial evidence to support the ALJ's conclusion that Plaintiff's examinations related to the EDS were largely normal. While Plaintiff did complain of pain related to the EDS, treatments consisted of physical therapy, acetaminophen, and referrals for bracing and further treatment and evaluation by other providers. Thus, the most invasive treatment for Plaintiff's EDS was a single injection at the last referenced visit.
Indeed, the cases cited by Plaintiff support the finding of conservative treatment. (Doc. 34 at 14-15.) Plaintiff cites Garrison v. Colvin, 759 F.3d 995, 1015 n. 20 (9th Cir. 2014), where the court expressed doubt that epidural shots in the neck and lower back could be deemed conservative treatment. In contrast, Plaintiff had a single shot of Kenalog in her gluteus, a far less intrusive and risky form of treatment, and recommendation to take over-the-counter acetaminophen. Plaintiff cites Guerrero v. Berryhill, 2018 WL 5276415, at *4 (D. Ariz. Oct. 24, 2018), but there the court found no basis to reject pain complaints on the basis of conservative treatment where “narcotic medication, rather than nonnarcotic medication, was necessary to treat plaintiff's pain.” But here, Plaintiff fails to point to a record showing her treatment with narcotics for her EDS pain. Indeed, in Guerroro the court cast as “conservative” the claimant's “physical therapy and antiinflammatory medications.” In Saul v. Acting Comm'r of Soc. Sec. Admin., 2017 WL 744422 (D. Ariz. Feb. 27, 2017), the court referenced as non-conservative such treatments as cervical fusion surgery, narcotic pain medication, occipital nerve blocks, trigger point injections, and epidural steroid injections in operation-like settings. Plaintiff shows no similar treatment. In Scrogham v. Colvin, 765 F.3d 685 (7th Cir. 2014), the court opined:
Finally, the ALJ's finding that Mr. Scrogham's surgery and medications indicated that his symptoms were not as severe as he claimed them to be seems to us to be misguided. We previously have acknowledged that a claimant's election to undergo serious treatment, such as having surgery and taking “heavy doses of strong drugs,” indicates that the claimant's complaints of pain are likely credible. Further, the fact that physicians willingly prescribed drugs and
offered other invasive treatment indicated that they believed the claimant's symptoms were real. Instead of showing that Mr. Scrogham's limitations were not as severe as he alleged, evidence that he was willing to undergo risky surgery and take powerful pain medication-and that physicians were willing to prescribe this course of treatment-reflects that Mr. Scrogham's symptoms caused him real problems.Id. at 701 (citations omitted). But here, Plaintiff fails to show invasive treatment, risky surgery, or the willing prescription and taking of powerful pain medication.
Under these circumstances, a reasonable mind could find the reports of normal function and the limited treatment provided to be adequate support to conclude that the Plaintiff's EDS, despite her having some level of chronic pain, did not significantly impair Plaintiff's ability to function.
(2). Failure to Observe Relationship between POTS and EDS
Finally, Plaintiff argues the ALJ erred because Dr. Saperstein found POTS commonly occurred with EDS, and the ALJ ignored this relationship between Plaintiff's POTS (which was found severe) and Plaintiff's EDS (which was found not severe). (Doc. 34 at 15.) The Commissioner does not directly respond, and Plaintiff makes no further argument in reply.
Indeed, Dr. Saperstein did opine that POTS and EDS commonly occur together:
History and examination are consistent [with] the hypermobile form of Ehlers-Danlos syndrome (EDS), but she does not meet the full 2017 diagnostic criteria - so technically the diagnosis would be “generalized hypermobility spectrum disorder”. The patient has a number of conditions that are commonly seen in the context of hypermobile EDS: postural orthostatic tachycardia syndrome, gastrointestinal symptoms, migraines, temporomandibular joint dysfunction, mast cell activation syndrome.
Symptoms suggest postural orthostatic tachycardia syndrome (POTS). This is commonly seen in Ehlers-Danlos syndrome.
(AR 555.) Dr. Saperstein went on to discuss the relationship between all the referenced conditions.
But this does nothing to show that Plaintiff's EDS symptoms were functionally limiting. Plaintiff fails to explain why her fainting from POTS means she must have suffered from her hypermobile joints at a severity sufficient to restrict her function. While the two conditions might flow from a common source (or each other) the existence of one does not establish the degree of symptoms from the other. At best, this connection serves to confirm the appropriateness of the diagnoses that Plaintiff had EDS and POTS, which the ALJ did not reject.
D. PROVIDER OPINIONS
Plaintiff next argues the ALJ erred in rejecting the opinions of treating providers Saperstein and Moe, and accepting (in part or whole) the opinions of the consulting provider (Cunningham) and reviewing providers (Swena and Haaland) on Plaintiff's physical functional limitations.
1. Applicable Standard
Under prior regulations establishing a hierarchy of medical opinions, the Ninth Circuit enforced a high standard for rejection of treating physician opinions. “Even if the treating doctor's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing ‘specific and legitimate reasons' supported by substantial evidence in the record.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998).
However, for applications filed after March 27, 2017, like Plaintiff's, the “new” regulations under 20 C.F.R. § 404.1520c apply. The new regulations require the ALJ to articulate “how persuasive” it finds the medical opinions and administrative findings. 20 C.F.R. § 404.1520c(b). The new regulations state:
Parallel SSI regulations are found in 20 C.F.R. §§ 416.900-416.999 and correspond with the last two digits of the DIB cite (e.g., 20 C.F.R. § 404.1520 corresponds with 20 C.F.R. § 416.920). Because the DIB and SSI regulations relevant to this case are essentially identical, only the DIB regulations are cited in this Order.
We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources ... The most important factors we consider when we evaluate the persuasiveness of medical opinions and prior administrative medical
findings are supportability (paragraph (c)(1) of this section) and consistency (paragraph (c)(2) of this section). We will articulate how we considered the medical opinions and prior administrative medical findings in your claim according to paragraph (b) of this section.
20 C.F.R. § 404.1520c (emphasis added). The regulations require an ALJ to explain their reasoning with specific reference to how they considered the supportability and consistency factors for each source (but not for each specific opinion). 20 C.F.R. § 404.1520c(b)(1) and (2).
In Woods v. Kijakazi, 32 F.4th 785 (9th Cir. 2022), the Ninth Circuit found these regulations supplant the old hierarchical system:
As a threshold matter, we must decide whether recent changes to the Social Security Administration's regulations displace our longstanding case law requiring an ALJ to provide “specific and legitimate” reasons for rejecting an examining doctor's opinion. We conclude that they do. For claims subject to the new regulations, the former hierarchy of medical opinions-in which we assign presumptive weight based on the extent of the doctor's relationship with the claimant-no longer applies. Now, an ALJ's decision, including the decision to discredit any medical opinion, must simply be supported by substantial evidence.Id. at 787. Thus, contrary to Plaintiff's pre-Woods argument in the original Opening Brief, the ALJ was not required to provide “specific and legitimate reasons” for rejecting Dr. Grove's opinions.
However, neither the new regulations nor Woods leave ALJs to dispense with medical opinions willy-nilly.
Even under the new regulations, an ALJ cannot reject an examining or treating doctor's opinion as unsupported or inconsistent without providing an explanation supported by substantial evidence. The agency must “articulate ... how persuasive” it finds “all of the medical opinions” from each doctor or other source, 20 C.F.R. § 404.1520c(b), and “explain how [it] considered the supportability and consistency factors” in reaching these findings, Id. § 404.1520c(b)(2).Id. at 792 (emphasis added).
Other factors, including the treating relationship (including length, frequency, purpose, extent, and examinations), specialization, familiarity with other evidence and agency standards, and new evidence not considered by other providers), 20 C.F.R. § 404.1520c(c)(3)-(4), are still relevant, but the ALJ needs to articulate the consideration of those factors only when two or more opinions are equally supported and consistent with the record. 20 C.F.R. § 404.1520c(b)(1) and (2).
With particular regard to the relationship factor, Woods observed.
Thus, an ALJ can still consider the length and purpose of the treatment relationship, the frequency of examinations, the kinds and extent of examinations that the medical source has performed or ordered from specialists, and whether the medical source has examined the claimant or merely reviewed the claimant's records. Id. § 404.1520c(c)(3)(i)-(v). However, the ALJ no longer needs to make specific findings regarding these relationship factors
Thus, the ALJ's decision must be upheld if: (a) it articulates how persuasive it found each source's medical opinion(s); (b) it explains how the supportability and consistency factors were considered; (c) if two or more opinions are equally supported and consistent, it explains how the other factors were considered to choose between them; and (d) its supplied reasons are supported by substantial evidence (which includes a reasonable mind consideration).
2. ALJ's Decision
The ALJ opined:
The undersigned finds the opinions of treating neurologist Dr. Saperstein and treating physicians Tabitha Moe, M.D. and Richard Nguyen, M.D. are not persuasive (14F; 29F; 30F). Dr. Saperstein, Dr. Moe, and Dr. Nguyen all asserted the claimant had significant exertional, manipulative, and postural limitations inconsistent with the record (14F; 29F; 30F). Specifically, they all found the claimant was limited to sitting and standing/walking less than three hours in a normal eight-hour workday; lifting and/or carrying less than 10 pounds; required the ability to shift positions every 21 to 45 minutes during the workday, with rest periods of up to 10 minutes with each position change; less than occasional bending, reaching, stooping, and occasional to frequent use of the bilateral hands; interruption of work pace ranging from moderate to severe in degree; headaches or mental fatigue occurring more than four times per month requiring more than two hours of rest on each occasion; and that she would miss six or more days of work per month due to her impairments (14F; 29F; 30F). While these treating physicians failed to cite relevant objective evidence in support of their extreme findings within their opinions themselves, the record contains progress notes from each physician. However, their opinions are extreme, and inconsistent with the objective evidence from the longitudinal
record documenting the presence of the claimant's fibromyalgia and POTS but showing largely normal functioning during physical examinations and conservative treatment. The undersigned therefore finds the opinions of Dr. Saperstein, Dr. Moe, and Dr. Nguyen are not persuasive.
(AR 26-27 (emphasis added).) In summary, the ALJ concluded that the opinions of Saperstein and Moe (and Nguyen) were unsupported by the opinions themselves, (at least potentially) supported by their progress notes, and inconsistent with the objective evidence showing normal functioning during physical exams and conservative treatment.
3. Arguments
Plaintiff argues the ALJ erred in rejecting Plaintiffs' treating physician opinions from Dr. Moe and Dr. Saperstein without providing reasonable explanations supported by substantial evidence on the supportability and consistency factors, and that such rejection was harmful. Plaintiff argues the ALJ: (a) failed to adequately explain purported inconsistencies; (b) improperly refused to rely on “extreme” limitations, substituted the ALJ's own medical opinions; (c) failed to explain why reported findings were insufficient to support the opinions; (d) failed to explain why the other opinions were found persuasive. Plaintiff argues the errors were harmful because, coupled with the vocational expert's opinions, these medical opinions established disability.
The Commissioner argues that the ALJ found the opinions not persuasive because they were: (1) not supported by the provider's opinion, or notes; and (2) not consistent with the overall record, including objective evidence. The Commissioner argues adequate explanations were given.
Plaintiff replies that the new regulations require not just substantial evidence, but reasonable and articulated explanations. Plaintiff argues no such explanation was given with regard to supportability and consistency.
4. Application to Saperstein/Moe Opinions
a. Articulation of Persuasiveness
Here, the ALJ explained that, with respect to Plaintiff's physical condition, Saperstein and Moe's opinions were “not persuasive,” examining physician Cunningham's opinion was “somewhat persuasive,” and reviewing physicians Swen and Halland's opinions were “persuasive.” (AR 26) Plaintiff posits no reason that this did not meet the requirement of 20 C.F.R. § 404.1520c(b) for articulation of the persuasiveness of the medical opinions.
b. Articulation of Supportability and Consistency
(1). Supportability
Supportability looks at whether the medical opinion is internally supported. This factor considers “the objective medical evidence and supporting explanations presented by a medical source... to support his or her medical opinion(s),” and the more relevant such supports are, the more persuasive the opinion. 20 C.F.R. § 14520c(c)(1). “An ALJ is not required to take medical opinions at face value, but may take into account the quality of the explanation when determining how much weight to give a medical opinion. While an opinion cannot be rejected merely for being expressed as answers to a check-the-box questionnaire, the ALJ may permissibly reject check-off reports that do not contain any explanation of the bases of their conclusions.” Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020) (citations and quotations omitted).
Plaintiff argues that the ALJ did not address supportability, and the Commissioner is offering a post hoc supportability analysis. (Doc. 39 at 7.) It is true that the ALJ did not invoke the word “supportability” in discussing these opinions. But an “incantation” of “magic words” is not required of an ALJ, only sufficient explanation to allow “specific and legitimate inferences” from the decision to allow the court to conclude that the applicable standard has been met. Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989). But see Woods v. Kijakazi, 32 F.4th 785, 793, n. 4 (9th Cir. 2022) (concluding ALJ's finding opinion was “not supported” was actually finding of inconsistency, and urging ALJ's to use the “terms of art” “with precision”). Here, the decision explicitly opined about the “support” of the opinions and did so in terms of the contents of the opinion. (AR 26.) That is all that 20 C.F.R. § 14520c(c)(1) requires.
Moreover, Plaintiff proffers nothing to suggest that this finding was not supported by substantial evidence. Indeed, Saperstein's opinion (Exh. 14F) consisted largely of checkbox responses to show an RFC opinion. The only explanation provided consisted of the “comment”: “Due to severe pain, subluxation, cardio issues, cognitive issues pt cannot work.” (Exh. 14F at 2.) This offered at best subjective diagnoses, rather than objective medical evidence, and lacked explanations tying such evidence (or diagnoses) to the RFC opinions. Moe's opinion (Exh. 29F) contained only the checkbox RFC, with no comments or explanations of any kind. Thus, substantial evidence supports the ALJ's findings on supportability of these opinions.
(2). Consistency
In determining persuasiveness, the ALJ must also evaluate how consistent an opinion is “with the evidence from other medical sources and nonmedical sources in the claim.” 20 C.F.R. § 404.1520c(c)(2). Here the ALJ found Saperstein and Moe's opinions were “extreme, and inconsistent with the objective evidence from the longitudinal record documenting the presence of the claimant's fibromyalgia and POTS but showing largely normal functioning during physical examinations and conservative treatment.” (AR 27.) (a). Identification and Explanation of Inconsistencies
Plaintiff argues that the ALJ failed to sufficiently articulate the inconsistencies. To the contrary, the ALJ identified what was considered inconsistent: “normal function during physical examinations and conservative treatment.” Plaintiff argues that this was not sufficient explanation, and that the ALJ failed to provide citations to the record to support those assertions. See Walker v. Sec'y of Health & Hum. Servs., 884 F.2d at 245 (ALJ does not err by simply failing to provide citations).
The Commissioner points to various findings earlier in the decision with citations reflecting normal physical exams and conservative treatment. (Doc. 35 at 12-13.) Indeed, the decision contains a variety of such findings. (See e.g. AR 20 (citing Exh. 7F at 24, 8F at 11, 17F at 3, and 17F at 1) (normal strength, tone, sensation, reflexes, coordination, and conservative treatment); AR 22 (citing 3F at 7, 9, 11; 21F at 1, 4; 27F at 4, 6, 8, 13, 18, 20, 24, 26, 29, 31, 34) (periodic denials of fainting); AR 22 (citing 3F at 18, 22) (POTS “suboptimally controlled”); AR 22-23 (citing 12F at 24, 3F at 17, 1F at 13, 2F at 8, 3F at 6, 8, 10, etc.) (normal blood pressures); AR 23 (citing 3F at 22) (conservative treatment for POTS); AR 23 (citing 5F at 1; 6F at 1-2) (normal ambulation, standing squatting); AR 24 (citing 7F at 24, 8F at 11, 17F at 3) (normal physical exams, strength, tone, sensation, coordination, gait). These were part of the discussion addressing Plaintiff's symptoms testimony.
Apart from casting the Commissioner's argument as a post hoc rationalization, Plaintiff fails to explain why the Court should not infer that these findings are encapsulated in the ALJ's summary reference to the “objective evidence from the longitudinal record.” (AR 27.) The undersigned finds the inference is properly made, and that with the inference the decision adequately articulates the inconsistencies.
(b). Rejection of “Extreme Limitations”
Plaintiff argues that the ALJ's reliance on his characterization of these opinions as adopting “extreme limitations” is not reasonable, because it is always “extreme” limitations that justify a finding of disability. See Lopez v. Colvin, 194 F.Supp.3d 903, 914 (D. Ariz. 2016) (“Presumably, most medical evaluations of disabled individuals assess extreme limitations.”). But the undersigned does not understand the characterization of these RFC opinions as “extreme” to be a normative evaluation (Plaintiff v. the worst-case scenario), but rather a comparative one (these treating providers v. other sources). Even if normative, then under the rubric in Lopez it would be unsurprising that the ALJ would characterize these RFC opinions as “extreme,” given the evidence that they would require a finding of disability, which the ALJ was rejecting both the opinions and the conclusion of disability.
(c). Playing Doctor and Cherry Picking
Plaintiff suggests that the ALJ's rejection of these opinions amounted to playing doctor and cherry picking the record. (Opening Brief, Doc. 347 at 18-19.)
While the ALJ cannot make his own independent medical findings, Banks v. Barnhart, 434 F.Supp.2d 800, 805 (C.D. Cal. 2006), or reject all the medical opinions and render wholesale a new medical opinion based on raw medical data, Tackett v. Apfel, 180 F.3d 1094, 1102 (9th Cir. 1999), it is the ALJ's purview to “evaluate the persuasiveness of medical opinions,” 20 C.F.R. § 404.1520c(a), including by comparison with “the objective medical evidence,” 20 C.F.R. § 404.1520c(c)(1) and (2). Here, the ALJ was not looking to the medical record to issue his own medical opinion, but to choose between existing, conflicting medical opinions. Cf. Omerasevic v. Commr. of Soc. Sec. Admin., No. CV-17-08211-PCT-DMF, Order, Doc. 29 at 22 (D. Ariz. Jan. 2, 2019) (“The ALJ did not cite to any medical opinion explaining what findings and treatment one should expect in Claimant's circumstances. This implies the ALJ improperly relied on her own assessment.” (citations omitted)).
It is true an ALJ does not rely on substantial evidence where he cherry-picks supportive statements that belie the plain import of the medical record. See Garrison v. Colvin, 759 F.3d 995, 1018 n. 23 (9th Cir. 2014) (quoting Scott v. Astrue, 647 F.3d 734, 739-40 (7th Cir.2011); and Attmore v. Colvin, 827 F.3d 872, 877 (9th Cir. 2016). But Plaintiff proffers no references to the record to show that cherry picking has occurred with regard to Plaintiff's “normal functioning during physical examinations and conservative treatment.”
5. Application to Other Opinions
Plaintiff further argues that the ALJ did not adequately explain his evaluation of the examining (Cunningham) and reviewing (Swena, Halland) providers. (Opening Brief, Doc. 34 at 19.)
Regarding Cunningham, the ALJ articulated a finding on persuasiveness (“somewhat persuasive”), and consistency (“consistent with the information in the longitudinal record documenting the claimant's fibromyalgia and POTS along with symptoms of intermittent joint pain, fatigue, and syncopal episodes, along with largely normal functioning during physical examinations”). (AR 26) As with the treating providers, the ALJ had earlier in the record addressed specific findings with citations on these issues.
However, the ALJ did not articulate a finding on supportability, nor offer any explanation regarding a finding on supportability for Cunningham's opinion.
Regarding Swena and Halland, the ALJ articulated findings on persuasiveness (“persuasive”) and supportability (“[t]o support their opinions, they cited relevant objective evidence in the longitudinal record”). (AR 26.) The ALJ did not explicitly address the consistency factor. However, the ALJ found:
Like Dr. Cunningham, they found the claimant had no exertional limitations and was precluded from climbing ladders, ropes, or scaffolds or being exposed to unprotected heights (2A; 3A). Unlike Dr. Cunningham, they also found the claimant limited in the frequency of exposure to machinery, as required by the record documenting the presence of fibromyalgia and POTS (2A; 3A).
(AR 26.) At this point in the decision, the ALJ had just found Cunningham's RFC opinion “consistent with the information in the longitudinal record.” Thus, a reasonable inference is that identifying the similarity with Cunningham was an adoption of the consistency finding regarding Cunningham's opinion. This inference is further supported by the fact that the ALJ reached the greater “persuasive” conclusion after finding that the reviewing opinions limitation on machinery was “required by the record documenting the presence of fibromyalgia and POTS.”
6. Harmlessness re Opinions
Based on the foregoing, the undersigned finds the ALJ erred with respect to the medical opinions only by failing to discuss the supportability of the consulting provider's opinion.
Here, if the error is viewed as finding the opinion persuasive at all, the ALJ was still faced with comparing the “not persuasive” opinions of the treating providers with the “persuasive” opinions of the reviewing providers, whose opinions were effectively adopted and applied in finding Petitioner not disabled.
If the error was finding Cunningham's opinion only “somewhat persuasive” (rather than wholly persuasive), and the ALJ adopted the opinion, the result would have been an RFC less restrictive than that adopted by the ALJ, which would have again resulted in a not-disabled conclusion. The ALJ opined:
Dr. Cunningham also asserted the claimant had no limitation in exposure to moving machinery (6F). A limitation on exposure to moving machinery is required for the same reasons the claimant would be limited in exposure to unprotected heights: such exposure could be dangerous in the event the claimant were to experience sudden pain in her joints or an episode of syncope or near syncope.
(AR 26.)
Accordingly, the error regarding this opinion was harmless to the non-disability determination.
E. SYMPTOMS TESTIMONY
1. Applicable Standard
Plaintiff contends the ALJ applied an incorrect standard to evaluating Plaintiff's symptoms testimony, citing Lacy v. Commr. of Soc. Sec. Admin., No. CV-18-4117- PHX-SPL, 2020 WL 1285948, at *1-2 (D. Ariz. Mar. 18, 2020) (vacated on other grounds, May 13, 2020). Here the ALJ opined:
After carefully reviewing the evidence in the record, the undersigned finds the claimant's severe impairments may reasonably have caused the presence of her alleged symptoms. However, the evidence generally does not support her allegations regarding the severity, frequency, and intensity of her symptoms and their alleged effect on her functional abilities.
(AR 22 (emphasis added).)
In evaluating a claimant's subjective symptom testimony, the ALJ engages in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). “First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment [that] could reasonably be expected to produce the pain or other symptoms alleged.” Id. at 1036. If so, the ALJ may not reject a claimant's testimony “simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).
Second, if the claimant meets the first test, the ALJ may discredit the claimant's subjective symptom testimony only if he makes specific findings that support the conclusion. Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). Absent a finding or affirmative evidence of malingering, the ALJ must provide “clear and convincing” reasons for rejecting the claimant's testimony. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); Ghanim v. Colvin, 763 F.3d 1154, 1163 & n.9 (9th Cir. 2014). The ALJ may consider a claimant's work record, observations of medical providers and third parties with knowledge of claimant's limitations, aggravating factors, functional restrictions caused by symptoms, effects of medication, and the claimant's daily activities. Smolen, 80 F.3d at 1283-84 & n.8. “Although lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in his credibility analysis.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).
In Lacy, the ALJ had required the symptoms testimony be “entirely consistent with the medical evidence and other evidence in the record.” “Requiring full objective confirmation of pain complaints before believing them ‘would overlook the fact that pain is a highly idiosyncratic phenomenon, varying according to the pain threshold and stamina of the individual victim.'” Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986) (per curiam), superseded by statute on other grounds as recognized in Bunnell v. Sullivan, 912 F.2d 1149, 1154 (9th Cir.1990). “Thus, it is improper as a matter of law for an ALJ to discredit excess pain testimony solely on the ground that it is not fully corroborated by objective medical findings.” Id. at 1407.
Here, the ALJ did not purport to require full corroboration or entire consistency with the medical record. He simply summarized that he did not find Plaintiff's symptoms testimony supported by the evidence, and then set about identifying the evidence in the record that conflicted with Plaintiff's claims.
Plaintiff complains that the ALJ merely made a general reference to “the alleged symptoms,” which did not meet the obligation to explain which symptoms were found inconsistent with the evidence. Had the ALJ stopped with his summary opener, the decision would fail to meet the requirement for “specific” “clear and convincing” reasons. But the ALJ promptly set about addressing in the decision the specific symptoms and the inconsistent evidence. Indeed, Plaintiff's ensuing objections all relate to the sufficiency of the reasons subsequently given.
2. Inconsistencies on Fainting
In addressing the symptoms related to POTS the ALJ opined in part:
The claimant occasionally reported experiencing frequent fainting episodes, but at other times she denied experiencing any episodes of fainting (see, e.g., 3F at 7, 9, 11; 21F at 1, 4; 27F at 4, 6, 8, 13, 18, 20, 24, 26, 29, 31, 34).
(AR 22-23.) Plaintiff argues that the reliance on the varying reports on frequency of fainting was not a clear and convincing reason to reject her symptoms testimony because it was consistent with her testimony. (Doc. 34 at 22.)
Indeed, in relation to her POTS, Plaintiff testified to variable and improved fainting:
Q What other medical conditions affect your ability to work, Ms. Sanchez?
A As you mentioned, I have POTS and then I also was diagnosed by Dr. Sapperstein with the hypernovia and Ehlers- Danlos syndrome.
Q And how does that affect you?
A The POTS, it makes me dizzy. I would get like hot flashes and start sweating without any activity. And then for the EDS, I have a lot of joint pains, mostly in my hips and my left shoulder.
Q Now, the record indicates you had a lot of problem with fainting in past years. Has that gotten a little bit better?
A It has.
Q How often was it happening?
A It wasn't like every week. I think it was more like maybe like once a month or once every month. It wasn't very frequent.
Q And what do you attribute the improvement to?
A I would say the biggest thing is the Midodrine and fluids.
(AR 53.)
However, the undersigned does not find that the ALJ rejected Plaintiff's symptoms testimony with regard to fainting. The ALJ did not do so explicitly. Nor does the undersigned find the ALJ did so implicitly. The structure of the ALJ's analysis was not as a list of reasons for rejecting certain testimony, but a comparison of Plaintiff's testimony and the other evidence. Plaintiff testified to variable and improved fainting, and the ALJ noted corroborating evidence, and adopted limitations based on such symptoms.
Specifically, the combined effect of her POTS and fibromyalgia limit her exposure to unprotected heights or moving machinery, including climbing ladders, ropes, or scaffolds, all of which could be extremely dangerous if the claimant were to experience sudden pain in her joints or an episode of syncope or near syncope.
(AR 24.)
The undersigned finds no error with regard to the fainting testimony.
3. Discounting Symptoms Log
Plaintiff argues the ALJ erred in relying on a finding that her symptoms log was “less persuasive” because not contemporaneously completed, because the ALJ failed to explain how it invalidated Plaintiff's symptom testimony regarding her fainting episodes and headaches. (Doc. 34 at 22.)
The ALJ summarized the physical symptoms testimony he found contradicted:
The record confirms the presence of the claimant's fibromyalgia and POTS, but shows a longitudinal treatment history containing largely normal physical examinations and conservative treatment, suggesting her physical impairments cause less frequent tachycardia symptoms, less pain, and fewer functional limitations than alleged.
(AR 22.) The ALJ then set about addressing specific issues, by reviewing various relevant evidence concerning various symptoms, including: fibromyalgia pain, fainting, and tachycardia. (AR 22-23.)
The ALJ noted that Plaintiff proffered her symptoms log and counsel argued it supported Plaintiff's testimony regarding the frequency of symptoms. The log consisted of six pages covering the six months of October 2019 through March 2020, and listed symptoms for the entire month in a single, summary, bullet-point list. (AR 396-401.)
The ALJ rejected the credibility of the log on the basis that it was kept on a monthly basis (rather than being recorded daily) and the Plaintiff had reported memory problems. “Assuming this allegation is accurate, a log kept at the end of the month is less persuasive.” (AR 23.) The ALJ also reasoned that the log was not specific, did not contain dates, included only one report of diagnostic monitoring, i.e. a blood pressure following a fainting episode. The ALJ also noted other reasons to find the log unreliable, including: the lack of blood pressure recordings, the report of only one episode of fainting (which Plaintiff testified occurred monthly), and inconsistency with a contemporaneous report regarding hip weakness or instability to a provider. Plaintiff proffers nothing to suggest it was error to find the log unreliable evidence.
With regard to fainting, the ALJ observed there was only one “allegation in the symptom log of any fainting or syncopal episode, she did not list the date this episode allegedly occurred, and the record shows no evidence she sought emergency treatment for any episode of syncope (20E at 18).” (AR 23.) However, despite the log reflecting only one fainting episode over a period of six months, the ALJ did not (as discussed hereinabove) discount Plaintiffs' testimony of having monthly fainting episodes.
Moreover, the ALJ made no reference to comparing the log to testimony regarding headaches. Indeed, in summarizing Plaintiff's symptoms testimony, the ALJ made no mention of headaches or migraines.
The claimant alleges disability primarily due to fibromyalgia, postural orthostatic tachycardia syndrome (“POTS”), a depressive disorder, an anxiety disorder, and PTSD, along with alleged corresponding symptoms and functional limitations (Claimant Testimony, dated Aug. 3, 2020; 2E; 4E; 9E; 12E; 15E; 16E; 19E; 20E; 21E). She claims fibromyalgia and POTS cause pain in her feet, knees, hips, and shoulders, chronic fatigue, rapid heart rate, irregular heartbeat, low blood pressure, fainting episodes, chest pain, shortness of breath, lightheadedness, and problems regulating body temperature (Claimant Testimony; 2E; 4E; 9E; 12E; 15E; 16E; 19E; 20E; 21E; see also 21F at 4). She claims her severe mental impairments cause depressed and anxious mood, low energy, suicidal ideation, social phobia, panic attacks that occur up to a few times per month, flashbacks of prior trauma, dissociation, and nightmares (Claimant Testimony; 2E; 4E; 9E; 12E; 15E; 16E; 19E; 20E; 21E; see also 1F at 4, 10). She claims these impairments and their symptoms cause limitations in performing numerous functional activities and activities of daily living (Claimant Testimony; 2E; 4E; 9E; 12E; 15E; 16E; 19E; 20E; 21E).
(AR 22.)
In Plaintiff's words, “the ALJ did not find that anything in Sanchez's symptom testimony was inconsistent with the symptom log.” (Doc. 34 at 22.)
4. Reliance on Logging of Hip Symptoms
Plaintiff next argues the ALJ erred in relying on a disparity between Plaintiff's symptoms log and an examination, positing that a condition at a given appointment does not correlate to the requirement of the workplace. (Doc. 34 at 22-23.) The ALJ opined:
Furthermore, the claimant's symptom log does not match the evidence in the file. For example, she wrote in the log that she experienced hip weakness and instability, yet physical examinations of the hips did not reveal any significant abnormalities (see, e.g., 20E at 7, claimant reporting in April 2019 feeling unsteady and experiencing joint pain in the hips, knees, feet while standing; 16F at 2, physical examination in April 2019 showing no tender points or trigger points, full range of motion at the hips, full strength and reflexes in the extremities but “gets shaky with variable effort provided”).
(AR 23.)
Plaintiff is correct that a single negative exam often provides little correlation to the kind of RFC meaningful to the demands of the workplace. But the ALJ was not relying on the exam to reject Plaintiff's symptoms testimony, but to show why the ALJ was not relying on the symptoms log to corroborate that testimony.
That is a meaningful difference. The ALJ was not saying that Plaintiff was not credible because her log was not credible. The ALJ was saying that the log's lack of credibility kept it from rehabilitating Plaintiff's symptoms testimony the ALJ had found uncredible when compared to other evidence.
5. Reliance on Walking Record
Finally, Plaintiff argues that the ALJ wrongly rejected her testimony about being unable to walk long distances on the basis that there was nothing in the file to support that allegation. Plaintiff argues that this finding was not supported by substantial evidence because records from 2018 showed difficulty with a treadmill test and records from 2020 showed unresolved knee pain, swelling and cramping. (Doc. 34 at 23.)
Plaintiff testified:
Q And you mention pain. Where do you experience pain?
A I have it like mostly all over but the things that stick out are my hips and then my left shoulder.
Q And how would you describe the pain? What does it feel like?
A It's like a sharp, stabbing pain in my hips. They're very achy and stiff.
* * *
Q What sort of things make the pain worse, if you know?
A .. .And my hips, just like walking, like a far distance.
(AR 54-55.)
The ALJ reasoned:
The claimant testified that she was unable to walk long distances, but there is nothing in the file to support that allegation (Claimant Testimony). She has never been prescribed any assistive devices. She brought a cane to consultative examinations in September 2018, but she bought the cane off of Amazon reportedly to help her with balance, and examining providers noted she did not appear to rely on or need the cane to ambulate, demonstrating an ability to walk, turn, and face the examiner, perform heel and toe standing, and squatting (5F at 1; 6F at 1-2). As previously indicated herein, physical examinations with treating providers were generally normal, with the claimant exhibiting normal strength, muscle tone, sensation, reflexes, coordination in the bilateral upper and lower extremities, as well as a normal gait (see, e.g., 7F at 24; 8F at 11; 17F at 3).
(AR 23-24.)
The Commissioner argues that the ALJ properly relied on inconsistency with other medical records reflecting ambulation, and activities of daily living. (Doc. 35 at 19-20.)
Plaintiff replies that the Commissioner does not address the ALJ's factual misstatement, and extrapolates the ALJ's discussion of activities of daily living with regard to mental impairments as supporting the rejection of these physical symptoms.
To show the incorrectness of the ALJ's conclusion of a lack of support, Plaintiff first points to a 2018 treadmill test. (AR 612.) But, the only symptom reported in that note which affected Plaintiff's performance was her “lightheadedness.” This record made no reference to any hip issues.
Plaintiff next points to a record from 2020 reporting knee pain, swelling and cramping. But it recorded no limitations on walking. (AR 778.) Moreover, that record reflects only “unresolved below knee” symptoms which were attributed to varicose veins. That same record reported for the musculoskeletal review:
General no limitation in motion, no muscle or joint pain, no muscle weakness, no neck/backache/shoulder pain, no swelling or redness in joints.
(AR 779.)
Neither of these records say anything about limitations in Plaintiff walking based on hip pain. Thus, Plaintiff fails to show that the ALJ's assessment of no record supporting a claim of hip-pain-based limits on walking is not supported by substantial evidence.
Because Plaintiff fails to show error in that regard, the Court need not address the other bases proffered by the Commissioner to support the ALJ's finding.
F. CONCLUSION
Plaintiff has shown only one error by the ALJ, i.e. the failure to consider the supportability of Dr. Cunningham's reviewing opinion. That error was harmless.
IT IS THEREFORE RECOMMENDED:
(A) The final decision of the Commissioner of Social Security be AFFIRMED.
(B) The Clerk be directed to enter judgment accordingly.
EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.
However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any findings or recommendations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).
In addition, the parties are cautioned Local Civil Rule 7.2(e)(3) provides that “[u]nless otherwise permitted by the Court, an objection to a Report and Recommendation issued by a Magistrate Judge shall not exceed ten (10) pages.”