Opinion
CV-20-00089-TUC-JAS (EJM)
10-20-2021
Sarah Jane Smith, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Eric J. Markovich United States Magistrate Judge
Plaintiff Sarah Jane Smith brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security (“Commissioner”). Plaintiff raises two issues on appeal: 1) the Administrative Law Judge (“ALJ”) failed to properly weigh the medical opinions and failed to properly determine Plaintiff's residual functional capacity (“RFC”); and 2) the ALJ failed to properly evaluate Plaintiff's subjective symptom testimony. (Doc. 17).
Before the Court are Plaintiff's Opening Brief, Defendant's Response, and Plaintiff's Reply. (Docs. 17, 20, 21). Based on the pleadings and the administrative record submitted to the Court, the Magistrate Judge recommends that the District Court, after its independent review, remand this matter for further administrative proceedings.
I. Procedural History
Plaintiff filed an application for Social Security Disability benefits on May 18, 2016. (Administrative Record (“AR”) 1749). Plaintiff alleged disability beginning on January 1, 2014 based on Sjogren's syndrome, rheumatoid arthritis, fibromyalgia, fatty liver disease, carpal tunnel syndrome, chronic obstructive pulmonary disease, anxiety, and high blood pressure. (AR 1632-33). Plaintiff's application was denied upon initial review (AR 1631) and on reconsideration (AR 1668). A hearing was held on November 9, 2018 (AR 62), after which ALJ Kelly Walls found, at Step Four, that Plaintiff was not disabled because she was capable of performing her past relevant work as an insurance clerk (AR 56). On December 31, 2019 the Appeals Council denied Plaintiff's request to review the ALJ's decision. (AR 1).
Plaintiff's date last insured (“DLI”) for DIB purposes is June 30, 2016. (AR 1632). Thus, in order to be eligible for benefits, Plaintiff must prove that she was disabled during the time period of her alleged onset date of January 1, 2014 and her DLI of June 30, 2016.
While the undersigned has reviewed the entirety of the record in this matter, the following summary includes only the information most pertinent to the Court's decision on Plaintiff's claims on appeal.
Plaintiff was born on July 27, 1971, making her 42 years old at the alleged onset date of her disability. (AR 1632). She has a 9th grade education and past work as a housekeeper and office work. (AR 1780-81, 1823).
A. Medical Testimony
i. Dr. Sabahi
Plaintiff was treated by Dr. Sabahi at the Phoenix Rheumatology Clinic.
On October 7, 2013 Plaintiff was seen for Sicca syndrome and reported pain in her wrists, fingers, knees, and ankles, and dryness in her eyes and mouth. (AR 1882). She had stiffness in the morning and her pain was usually better in the afternoon. She previously saw Dr. Mahadevan and was diagnosed with Sjogren's syndrome 2 years ago and treated with Plaquenil but stopped because it made her moody. Dr. Sabahi assessed Sicca syndrome, unspecified inflammatory polyarthropathy, and other malaise and fatigue. (AR 1882-83).
“Sicca syndrome: An autoimmune disease, also known as Sjogren syndrome, that classically combines dry eyes, dry mouth, and another disease of connective tissue such as rheumatoid arthritis (most common), lupus, scleroderma or polymyositis.” https://www.medicinenet.com/siccasyndrome/definition.htm
On November 18, 2013 Plaintiff reported pain in her fingers, ankles, knees, and shoulders, and morning stiffness for a few hours. (AR 2061). Dr. Sabahi prescribed Methotrexate and Prednisone. (AR 2062).
On March 24, 2014 Plaintiff reported pain in her hands, knees, and ankles, with morning stiffness for a few hours. (AR 2060). Methotrexate had been on hold and Dr. Sabahi restarted it. (AR 2060-61).
On June 23, 2014 Plaintiff reported pain in her neck and morning stiffness for 15- 30 minutes. (AR 2059). Her joint pain was improved with MTX.
On October 30, 2014 Plaintiff reported pain in her hands and morning stiffness for 15 minutes. (AR 2058). Dr. Sabahi assessed Sicca syndrome and fibromyalgia.
On January 19, 2015 Plaintiff reported pain in her hands, knees, and feet, morning stiffness for 15 minutes, and numbness and tingling. (AR 2056). Dr. Sabahi discontinued MTX and increased Gabapentin. (AR 2057).
On March 3, 2015 Plaintiff reported pain in her knees and ankles and chronic fatigue. (AR 2055). Dr. Sabahi noted EMG of the lower extremities showed no evidence of neuropathy. (AR 2056).
On April 21, 2015 Plaintiff had moderate to severe pain all over her body, constant and worsening. (AR 2054). Dr. Sabahi added Diclofenac and increased Gabapentin. (AR 2055).
On July 21, 2015 Plaintiff reported pain in her back, shoulders, and knees, moderate and constant, worse with movement and exercise, and better with medication. (AR 2052).
On October 22, 2015 Plaintiff had pain in her upper back, lower back, and knees, mild to moderate and constant, and improved. (AR 2051).
On January 2, 2016 Plaintiff had pain in her lower back and knees, mild to moderate and constant, worse with movement and exercise, 4/10, and improved. (AR 2050).
On April 21, 2016 Plaintiff had pain in her lower back, arms, and legs, mild to moderate and constant, worse with movement, 4-5/10, and better with Tramadol. (AR 2048).
On June 23, 2016 Plaintiff reported pain in her lower back and legs, mild to moderate and constant, 4/10, and improved. (AR 2047). Her pain was better with Tramadol and rest.
Also on June 23, 2016, Dr. Sabahi completed a Fibromyalgia Medical Source Statement. (AR 2026). He first saw Plaintiff on October 7, 2013 and treated her every 3 months. He documented that Plaintiff met the American College of Rheumatology Criteria for the Classification of Fibromyalgia, and her associated symptoms and conditions included widespread pain, 11 of 18 tender points, cognitive dysfunction, muscle pain, insomnia, dry eyes, fatigue, depression, anxiety, waking unrefreshed, numbness or tingling, dry mouth, GERD, chronic fatigue syndrome, and carpal tunnel syndrome. (AR 2026-27). Plaintiff had continuous moderate to severe pain and her prognosis was fair. (AR 2027-28). Dr. Sabahi opined that Plaintiff did not have the stamina and endurance to work an easy job full-time because the stress of work made her symptoms worse. (AR 2028). Plaintiff needed to shift positions at will, needed to walk every 30 minutes for 5 minutes, and needed unscheduled breaks every hour for 10 minutes. (AR 2029). She could grasp, turn, and twist objects, perform fine manipulations, and reach overhead for 25% of the workday, and could reach in front of the body 50% of the workday. Plaintiff would be off-task 25% or more of the workday, would have good days and bad days, and would be absent more than 4 days per month. (AR 2030).
Dr. Sabahi also completed an Arthritis Medical Source Statement. (AR 2035). Plaintiff's diagnoses were Sjogren's syndrome and fibromyalgia and her prognosis was fair, and she had widespread musculoskeletal pain and chronic fatigue. She could sit and stand for 30 minutes before needing to get up, could sit for 4 hours total in an 8-hour workday, and stand/walk about 2 hours total. (AR 2036). Plaintiff could lift and carry less than 10 pounds frequently, 10 pounds occasionally, 20 pounds rarely, and 50 pounds never. (AR 2037). She could occasionally twist, stoop, crouch/squat, and climb stairs, and rarely climb ladders. Dr. Sabahi assessed the same reaching, handling, and fingering limitations as on the fibromyalgia MSS. (AR 2037-38).
On July 21, 2016 Plaintiff reported moderately severe pain in her left thumb, worse with gripping and better with rest and NSAIDs. (AR 2046). She also had pain in her mid-back and legs, mild to moderate. Dr. Sabahi recommended gentle massage and moist heat, avoid heavy lifting and forceful grasping, and continue Diclofenac, Gabapentin, and Tramadol. (AR 2047).
On February 14, 2019 Dr. Sabahi completed a Rheumatoid Arthritis Impairment Questionnaire. (AR 847). Plaintiff's diagnoses were fibromyalgia and Sjogren's and her prognosis was fair. Dr. Sabahi opined that Plaintiff would have moderate limitations in grasping, twisting, and turning objects, using her fingers/hands for fine manipulation, and using her arms for reaching. (AR 848). She had reduced grip strength, tenderness in her back, elbows, hips, and knees, muscle spasms in her arms and legs, and trigger points in her upper and lower back. (AR 848-49). Dr. Sabahi opined that Plaintiff could sit for 4 hours, stand/walk for 2 hours, must get up and move every 30 minutes, could frequently lift and carry 0-10 pounds, occasionally lift and carry 10-20 pounds, and never lift or carry over 20 pounds, and could not push, pull, kneel, bend, or stoop. (AR 850-53). Plaintiff's conditions would frequently interfere with her attention and concentration and she would need to take breaks once an hour for 15 minutes to rest or relieve pain. (AR 851-52). She would have good days and bad days and would be absent from work more than 3 times a month. (AR 852). Dr. Sabahi indicated that the assessed limitations applied beginning in 2013. (AR 853).
ii. Dr. Hagevik
On July 11, 2014 Plaintiff saw Dr. Hagevik for evaluation of neck pain. (AR 1174). She reported significantly worsening pain over the past 3 months with no relief from PT, and tingling down her arms into her fingers. Naproxen did not help; Plaintiff took ibuprofen and Vicodin, and Gabapentin at night which made her sleep well. On exam Plaintiff was tender to palpation over the lower cervical spine and Dr. Hagevik referred her for an MRI and pain management evaluation. (AR 1175-76).
On October 9, 2014 Plaintiff reported her pain greatly improved since starting Zanaflex and it also helped her muscle aches, and the wrist braces were helpful. (AR 1192). Dr. Hagevik noted Plaintiff was doing much better on the muscle relaxer and her MRI showed no severe pathology; she was to continue wrist braces at night and follow-up with her new rheumatologist for Sjogren's as the likely cause of her joint stiffness. (AR 1193).
On February 16, 2015 Plaintiff's neck was doing better and she had much less radicular arm pain. (AR 1263). PT did not seem to help but Tizanidine had been very helpful. Plaintiff reported pain in her knees, hips, ankles, and low back, and numbness in her feet. Dr. Hagevik documented neck pain, improved, and low back pain, deteriorated, and referred Plaintiff for an EMG. (AR 1265).
iii. Wickenburg Clinic
The record documents Plaintiff's treatment at the Wickenburg Clinic from 2013- 2018 with various providers, including Physician Assistant Nancy Carter.
On July 24, 2013 Plaintiff was seen for back pain associated with heavy lifting and cleaning out the garage. (AR 202). X-rays showed nominal to mild degenerative joint disease without fracture or subluxation. (AR 206).
On October 1, 2013 Plaintiff was seen for severe joint pain in the knees, shoulders, ankles, and fingers. (AR 211). The nurse practitioner prescribed Gabapentin and naproxen sodium and refilled hydrocodone-acetaminophen and instructed Plaintiff to follow-up with her rheumatologist. (AR 214).
On October 17, 2013 Plaintiff was seen for a follow-up after her rheumatology evaluation. (AR 215). She had some improvement of her recent pain flare with medication. (AR 217).
On December 11, 2013 Plaintiff reported fatigue and pain were improving with her new medications. (AR 219-21).
A December 20, 2013 x-ray of the thoracic spine showed no acute findings and a pulmonary nodule. (AR 225).
On May 14, 2014 Plaintiff was seen for neck pain, 3/10, that began 3 weeks ago. (AR 246). On exam range of motion and sensation of the upper extremities were normal and neck was tender to palpation. (AR 248). Plaintiff received an injection and was referred to physical therapy. (AR 249). X-rays of the cervical spine showed no acute osseous abnormality and minimal degenerative changes. (AR 244).
At a May 20, 2014 physical therapy evaluation Plaintiff complained of neck pain and numbness and tingling down both arms. (AR 705). A September 11, 2014 discharge summary states that Plaintiff had 13 PT appointments and “made very good progress in the first 5 treatments before she began heavy manual labor that exacerbated symptoms and regressed her progress.” (AR 702). Plaintiff was building handicap ramps with her sister and was doing much of the lifting. (AR 714). After that, Plaintiff “made very limited progress and missed multiple treatments.” (AR 702). Plaintiff was discharged for failing to follow-up with PT.
A July 18, 2014 EMG study showed median neuropathy at both wrists, mild to moderate, a little more prominent on the right, consistent with entrapment of the nerves at the carpal tunnel, and normal EMG without findings of muscle denervation or cervical radiculopathy. (AR 1179). Plaintiff was to start wearing wrist braces at night.
On July 23, 2014 Plaintiff received a Kenalog injection. (AR 261).
On August 20, 2014 Plaintiff was seen for a follow-up and reported joint pain but had significant pain relief with Tizanidine and Tramadol. (AR 262, 264-65). Her EMG showed bilateral carpal tunnel and she was using wrist braces at night with relief. (AR 262, 265).
On February 5, 2015 Plaintiff reported she was doing well and had no complaints. (AR 305).
On May 27, 2015 Plaintiff reported her rheumatologist wanted to increase Gabapentin but she couldn't tolerate it. (AR 309, 312). Plaintiff received a Kenalog injection. (AR 313).
On September 25, 2015 Plaintiff reported back pain after lifting rocks, 7/10, and home exercises were recommended. (AR 321, 323). X-rays of the lumbar spine showed no compression fracture and early degenerative disc disease at ¶ 3-L5. (AR 320).
On March 17, 2016 Plaintiff reported right shoulder pain that began gradually 4 months ago, worse at night, and moderately severe. (AR 333). No. obvious abnormality was seen on exam and Plaintiff had decreased range of motion on rotation and lifting. (AR 336). X-rays showed no evidence of acute fracture or dislocation. (AR 337).
On June 6, 2016 Plaintiff presented disability paperwork for completion and complained of chronic joint pain and fatigue. (AR 348). Plaintiff received Dexamethasone and Kenalog injections. (AR 352).
Also on June 6, 2016, PA Carter completed a Physical Medical Source Statement. (AR 1335). Plaintiff's diagnoses were Sjogren's and fibromyalgia and her prognosis was fair, and her symptoms included joint pain, fatigue, and muscle spasms. PA Carter opined that Plaintiff could sit for 20 minutes before needing to get up and could stand for 20 minutes before needing to sit or walk around, and could sit, stand, and walk for less than 2 hours total in an 8-hour workday. (AR 1336). Plaintiff needed to shift positions at will and needed unscheduled breaks 4-5 times a day for 20 minutes. She could rarely lift less than 10 pounds, rarely twist, stoop, crouch/squat, climb stairs, or climb ladders, and could use her upper extremities for reaching, handling, and fingering for 10% of the workday. (AR 1337). Plaintiff would be off task 25% or more of the workday, would have good days and bad days, and would be absent 3 or more days per month. (AR 1338).
On June 9, 2016 Plaintiff was seen for a 1-month history of moderate fatigue and also reported hand swelling and weight loss. (AR 339). She had stable chronic joint pains without worsening. Labs were ordered to check for a flare of autoimmune disease. (AR 342).
At a July 7, 2016 physical therapy evaluation Plaintiff complained of right shoulder pain starting 8 months ago, achy and gradually worsening. (AR 579). An August 26, 2016 discharge summary documents that Plaintiff reported she had no limitations and her pain was completely gone. (AR 577).
On July 29, 2016 Plaintiff reported worsening dull mid-back pain, 7/10, and stiffness and muscle spasms. (AR 355). On exam spinous processes and paraspinals were tender to palpation, and prednisone was prescribed. (AR 357-58). X-rays of the thoracic spine showed minor degenerative changes. (AR 359).
On December 19, 2016 Plaintiff reported 3 days of mid-back pain and some spasms from doing too much preparing for the holidays. (AR 364).
On January 18, 2017 Plaintiff reported moderate low back pain with reduced range of motion, with symptoms beginning gradually months ago. (AR 1376).
At a February 28, 2017 physical therapy evaluation Plaintiff complained of mid and low back pain and stiffness and wanted to return to gardening, woodworking, and jeeping without limitation. (AR 550). A May 8, 2017 discharge summary documents that Plaintiff stated she was doing great until 2 days ago when she twisted wrong with weight in her hand, but that she was just sore, and the soreness was going away. (AR 548). Plaintiff felt she no longer needed PT and agreed to be discharged.
On July 24, 2017 Plaintiff saw PA Carter to have disability paperwork completed and complained of difficulty working any job due to chronic medical issues. (AR 394).
B. Plaintiff's Testimony
On a July 30, 2016 Function Report, Plaintiff reported that arthritis pain limited use of her hands, elbows, shoulders, knees, and ankles, and her endurance was limited due to pain and fatigue from fibromyalgia. (AR 1792). Plaintiff was unable to sit or stand for long periods of time and had carpal tunnel in both wrists, limiting usage. In the morning it took several hours for pain and stiffness to subside before she started her day; she spent her days preparing meals for the family and doing household chores, with rest in between. (AR 1793). Plaintiff went outside daily, drove, and shopped for groceries. (AR 1795). Her conditions affected her ability to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, complete tasks, concentrate, understand, follow instructions, and use her hands. (AR 1797).
On an October 24, 2016 Disability Report, Plaintiff reported that her anxiety and depression had gotten worse due to her medical conditions and that she felt tired and fatigued most of the time. (AR 1812).
At the hearing before the ALJ, Plaintiff testified that during the time period of 2014- 2016 she was unable to work because of pain, fatigue, discomfort, depression, and inability to concentrate. (AR 74). She was diagnosed with Sjogren's syndrome and rheumatoid arthritis and then lung cancer. She quit smoking immediately in 2014 but still has shortness of breath and uses an inhaler and steroids for flareups. (AR 75-76). Her most debilitating condition during the relevant time period was constant pain in her neck, lower back, and joints. (AR 76).
From her diagnosis in 2014 to the time of the hearing, Plaintiff's arthritis had “really progressed” and her fingers, knees, and ankles ached constantly. (AR 76-77). Nothing gave her relief from the pain. (AR 77). She lays awake 5-6 nights a week because of pain in her hands, knees, feet, and back, and it affects everything she tries to do. (AR 74). Pain in her shoulders causes problems with lifting and reaching. (AR 77).
When she was diagnosed with arthritis, Plaintiff tried medications that caused extreme GI upset and liver changes. (AR 75). The medications she takes now make her drowsy and unable to focus. (AR 81). She naps throughout the day due to fatigue and could be talking on the phone and start to fall asleep. (AR 81-82). Plaintiff wears splints at night for carpal tunnel, which help a little. (AR 77-78). Physical therapy helps a little but in some ways it doesn't. (AR 79). Injections helped her shoulder for about a month but then her pain went back to the same.
Plaintiff has good days and bad days. (AR 79). On a bad day she has lots of pain and discomfort and can't sit or stand still; she has to keep moving to prevent stiffening up. (AR 80). During the relevant time period, if she had a full-time job where she could sit and stand as needed, she wouldn't have been able to do it because she wasn't dependable-she might be good for 1-2 hours and then the later part of the day she would be hurting or unable to stay focused. (AR 80).
C. Vocational Testimony
At the hearing before the ALJ, Steven Schmidt testified as a vocational expert. (AR 82). He classified Plaintiff's past work as an insurance clerk as sedentary. (AR 83).
The ALJ asked Schmidt to assume an individual who could perform sedentary work with the following limitations: alternate positions every 30 minutes for 3-4 minutes while remaining at the work station, occasionally climb ramps and stairs, never climb ladders, ropes, or scaffolds, occasionally balance, stoop, kneel, crouch, and crawl, frequently reach, handle, and finger bilaterally, and avoid extreme temperatures and hazards. (AR 83-84). Schmid testified that such an individual could do Plaintiff's past work as an insurance clerk. (AR 84).
On questioning by Plaintiff's attorney, Schmidt stated that if a person needed to shift positions at will from sitting, standing, and walking, the job would not be viable. (AR 84). If the person needed a 10-minute break once every hour in addition to regularly scheduled breaks, the person would not be able to sustain full-time employment. Finally, if handling, fingering, and reaching overhead were limited to 25% of the workday, the person could not perform the job of insurance clerk and there would be no other work the person could do. (AR 84-85).
D. ALJ's Findings
The ALJ found that Plaintiff had the severe impairments of right lower lobe non-small cell carcinoma, status post lobectomy, chronic obstructive pulmonary disease, Sjogren's syndrome, fibromyalgia, unspecified inflammatory polyarthropathy, bilateral carpal tunnel syndrome, and lumbar degenerative disc disease. (AR 46).
The ALJ gave partial weight to the state agency physician opinions because they were generally consistent with the record, objective testing results, and Plaintiff's treatment history. (AR 54). However, the ALJ assessed additional limitations to account for Plaintiff's subjective pain allegations.
The ALJ gave little weight to Dr. Sabahi's and PA Carter's medical source statements because the limitations assessed were not supported by their own treatment records documenting Plaintiff's improvement with medication and generally mild/normal physical examinations. (AR 55). The ALJ also commented that the opinions were provided on generic, check-the-box forms provided by Plaintiff's attorney. The ALJ gave some weight to Dr. Sabahi's opinion that Plaintiff should avoid heavy lifting and forceful grasping because it reflected the actual assessment he gave to Plaintiff when he treated her and was consistent with the medical treatment history.
Based on the hypothetical provided to the VE, the ALJ found that Plaintiff could perform her past relevant work as an insurance clerk as generally performed. (AR 56). The ALJ therefore concluded Plaintiff was not disabled.
III. Standard of Review
The Commissioner employs a five-step sequential process to evaluate SSI and DIB claims. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To establish disability the claimant bears the burden of showing he (1) is not working; (2) has a severe physical or mental impairment; (3) the impairment meets or equals the requirements of a listed impairment; and (4) the claimant's RFC precludes him from performing his past work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At Step Five, the burden shifts to the Commissioner to show that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant “disabled” or “not disabled” at any point in the five-step process, he does not proceed to the next step. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
The findings of the Commissioner are meant to be conclusive. 42 U.S.C. §§ 405(g), 1383(c)(3). The court may overturn the decision to deny benefits only “when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). As set forth in 42 U.S.C. § 405(g), “[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive.” Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, ” Valentine, 574 F.3d at 690 (internal quotations and citations omitted), and is “more than a mere scintilla, but less than a preponderance.” Aukland, 257 F.3d at 1035. The Commissioner's decision, however, “cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998).
“Rather, a court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the Secretary's conclusion.” Aukland, 257 F.3d at 1035 (internal quotations and citations omitted).
The ALJ is responsible for resolving conflicts in testimony, determining credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “When the evidence before the ALJ is subject to more than one rational interpretation, [the court] must defer to the ALJ's conclusion.” Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). This is so because “[t]he [ALJ] and not the reviewing court must resolve conflicts in evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992).
Additionally, “[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). The claimant bears the burden to prove any error is harmful. McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011) (citing Shinseki v. Sanders, 556 U.S. 396 (2009)). An error is harmless where it is “inconsequential to the ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012); see also Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). “[I]n each case [the court] look[s] at the record as a whole to determine whether the error alters the outcome of the case.” Molina, 674 F.3d at 1115. In other words, “an error is harmless so long as there remains substantial evidence supporting the ALJ's decision and the error does not negate the validity of the ALJ's ultimate conclusion.” Id. (internal quotations and citations omitted). Finally, “[a] claimant is not entitled to benefits under the statute unless the claimant is, in fact, disabled, no matter how egregious the ALJ's errors may be.” Strauss v. Comm'r Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
IV. Discussion
Plaintiff argues that the ALJ erred by giving greater weight to the non-examining state agency physician opinions than to the treating physician opinions, and failed to cite any specific medical facts or non-medical evidence to support the RFC finding that Plaintiff could perform sedentary work. Plaintiff further argues that the ALJ erred by rejecting her subjective symptom testimony.
The Commissioner argues that the ALJ reasonably evaluated the medical opinions to find that Plaintiff could perform a reduced range of sedentary work and that the RFC assessment is supported by substantial evidence. The Commissioner further argues that the ALJ gave specific reasons supported by substantial evidence in the record to discount Plaintiff's subjective symptom testimony.
The undersigned finds that the ALJ failed to provide legally sufficient reasons to discount Dr. Sabahi's and PA Carter's MSS opinions in light of Plaintiff's fibromyalgia diagnosis. This error impacted the ALJ's RFC assessment and the hypotheticals posed to the VE. Consequently, the error was not harmless because it ultimately impacted the ALJ's Step Four nondisability finding. Because questions remain regarding whether in fact Plaintiff was disabled within the meaning of the SSA during the relevant time period, and because Plaintiff's subjective symptom testimony is best reassessed in light of the record as a whole, the undersigned finds that remand for further administrative proceedings is appropriate.
Because the undersigned recommends that this matter be remanded for further administrative proceedings on an open record, the undersigned declines to address the other issues raised by Plaintiff in her appeal.
A. Evaluation of Medical Testimony
In weighing medical source opinions in Social Security cases, the Ninth Circuit distinguishes among three types of physicians: (1) treating physicians, who actually treat the claimant; (2) examining physicians, who examine but do not treat the claimant; and (3) non-examining physicians, who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “As a general rule, more weight should be given to the opinion of a treating source than to the opinion of doctors who do not treat the claimant.” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting Lester, 81 F.3d at 830). “Courts afford the medical opinions of treating physicians superior weight because these physicians are in a better position to know plaintiffs as individuals, and because the continuity of their treatment improves their ability to understand and assess an individual's medical concerns.” Potter v. Colvin, 2015 WL 1966715, at *13 (N.D. Cal. Apr. 29, 2015). “While the opinion of a treating physician is thus entitled to greater weight than that of an examining physician, the opinion of an examining physician is entitled to greater weight than that of a non-examining physician.” Garrison, 759 F.3d at 1012.
Where a treating physician's opinion is not contradicted by another physician, it may be rejected only for “clear and convincing” reasons. Lester, 81 F.3d at 830. “If a treating or examining doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence. This is so because, even when contradicted, a treating or examining physician's opinion is still owed deference and will often be entitled to the greatest weight . . . even if it does not meet the test for controlling weight.” Garrison, 759 F.3d at 1012 (internal quotations and citations omitted). Specific, legitimate reasons for rejecting a physician's opinion may include its reliance on a claimant's discredited subjective complaints, inconsistency with the medical records, inconsistency with a claimant's testimony, or inconsistency with a claimant's ADL. Tommassetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). “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. 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. However, “when evaluating conflicting medical opinions, an ALJ need not accept the opinion of a doctor if that opinion is brief, conclusory, and inadequately supported by clinical findings.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Further, if the ALJ determines that the plaintiff's subjective complaints are not credible, this is a sufficient reason for discounting a physician's opinion that is based on those subjective complaints. Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009). Lastly, the opinion of a non-examining physician cannot, by itself, be substantial evidence to reject an examining or treating physician opinion. Lester, 81 F.3d at 830-31.
B. Evaluation of Fibromyalgia
Fibromyalgia is “a rheumatic disease that causes inflammation of the fibrous connective tissue components of muscles, tendons, ligaments, and other tissue.” Benecke v. Barnhart, 379 F.3d 587, 589 (9th Cir. 2004). In 2012, the SSA published SSR 12-2p to “provide[] guidance on how we develop evidence to establish that a person has a medically determinable impairment of fibromyalgia, and how we evaluate fibromyalgia in disability claims . . . .” Pursuant to SSR 12-2p, once fibromyalgia is established as a medically determinable impairment, “we then evaluate the intensity and persistence of the person's pain or any other symptoms and determine the extent to which the symptoms limit the person's capacity for work.”
“Fibromyalgia is a disease that eludes objective evidence.” Satterwaite v. Astrue, 781 F.Supp.2d 898, 909 (D. Ariz. 2011). As the Ninth Circuit has observed, “[f]ibromyalgia's cause is unknown, there is no cure, and it is poorly understood within much of the medical community. The disease is diagnosed entirely on the basis of patients' reports of pain and other symptoms.” Benecke, 379 F.3d at 590. “Common symptoms . . . include chronic pain throughout the body, multiple tender points, fatigue, stiffness and a pattern of sleep disturbance that can exacerbate the cycle of pain and fatigue associated with this disease.” Id. Further,
What is unusual about the disease is that those suffering from it have muscle strength, sensory functions, and reflexes that are normal. Their joints appear normal, and further musculoskeletal examination indicates no objective joint swelling. Indeed, there is an absence of symptoms that a lay person may ordinarily associate with joint and muscle pain. The condition is diagnosed entirely on the basis of the patients' reports of pain and other symptoms. There are no laboratory tests to confirm the diagnosis.Revels v. Berryhill, 874 F.3d 648, 656 (9th Cir. 2017) (internal quotations and citations omitted); see also Satterwaite, 781 F.Supp.2d at 912 (“[F]ibromyalgia patients may present no objectively alarming signs and may manifest normal muscle strength and neurological reactions and have a full range of motion.” (internal quotations and citation omitted)). “Given the nature of fibromyalgia, a claimant's subjective complaints of pain are often the only means of determining the severity of a patient's condition and resulting functional limitations.” Satterwaite, 781 F.Supp.2d at 912.
C. Analysis
Here, the ALJ gave little weight to the MSS of Dr. Sabahi and PA Carter because the limitations assessed were “not supported by the overall record, specifically their own treatment records.” (AR 55) (citing Ex. 8F). The ALJ noted that the treatment records documented “improvement in pain with medication” and “physical examinations were generally mild with exception of some tenderness of the back, elbows, and knees, dry eyes, and dry mouth.” Id. (citing Ex. 8F/9, 10, 12, 13, 14, and 21). The ALJ further noted that the “treatment providers noted that the neurological findings were normal with normal gait, no weakness or sensory deficits in the extremities, no joint swelling or tenderness, no tenderness of the spine, the claimant was in no distress, and there were no abnormal skin findings.” Id. (citing Ex. 8F). The ALJ thereby rejected the functional limitations Dr. Sabahi and PA Carter assessed in formulating Plaintiff's RFC. The undersigned finds that the ALJ failed to provide legally sufficient reasons to assign less weight to Dr. Sabahi's and PA Carter's MSS opinions.
The ALJ discounted the treating physician opinions as unsupported by the treatment records. However, in so finding, the ALJ failed to construe the medical evidence “in light of fibromyalgia's unique symptoms and diagnostic methods, ” Revels, 874 F.3d at 662, and thus “erred by effectively requir[ing] objective evidence for a disease that eludes such measurement.” Benecke, 379 F.3d at 594 (internal quotations and citation omitted). While the ALJ cited normal examination findings from some of Plaintiff's medical appointments, this points to the ALJ's unfamiliarity with the diagnosis and treatment of fibromyalgia as a “disease [that] is diagnosed entirely on the basis of patients' reports of pain and other symptoms, ” Benecke, 379 F.3d at 590, and the fact that “fibromyalgia patients may present no objectively alarming signs.” Satterwaite, 781 F .Supp. 2d at 912. The ALJ overlooks the significance of the fact that Plaintiff has consistently complained of diffuse pain affecting many parts of her body, and that her treating physicians diagnosed and treated Plaintiff for fibromyalgia and chronic pain. Normal findings on examination are not inconsistent with Plaintiff's fibromyalgia diagnosis and the associated limitations assessed by her treating physicians, especially given her consistent reports of pain and fatigue, and the ALJ's “[s]heer disbelief is no substitute for substantial evidence.” Benecke, 379 F.3d at 594.
The ALJ's weight finding also ignores Plaintiff's longstanding treatment relationships with Dr. Sabahi and PA Carter in favor of the state agency physicians who never even saw Plaintiff. See 20 C.F.R. § 404.1527(c). If the ALJ does not give a treating physician's opinion controlling weight, then the ALJ must evaluate any medical opinion according to the requirements set out in 20 C.F.R. § 404.1527(c). Thus, in determining what weight to afford Dr. Sabahi and PA Carter's opinions, the ALJ was required to consider (1) the frequency of examination and the length, nature, and extent of the treatment relationship; (2) the evidence in support of the opinion; (3) the consistency of the opinion and the record as a whole; (4) whether the doctor is a specialist; and (5) other factors that would support or contradict the opinion. “Generally, the longer a treating source has treated [the claimant] and the more times [the claimant has] been seen by a treating source, the more weight [the Commissioner] will give to the source's medical opinion.” 20 C.F.R. § 404.1527(c)(2)(i). Dr. Sabahi and PA Carter are certainly in a better position to evaluate Plaintiff's conditions and functional limitations than the state agency reviewing physicians who never examined nor treated Plaintiff. See Revels, 874 F.3d at 664 (“[A] rheumatologist's specialized knowledge is particularly important with respect to a disease such as fibromyalgia that is poorly understood within much of the medical community. As a result, we have previously given a rheumatologist's opinion of a claimant's fibromyalgia greater weight than those of the other physicians because it is an opinion of a specialist about medical issues related to his or her area of specialty.” (internal quotations and citation omitted)); see also Potter, 2015 WL 1966715 at *13; Garrison, 759 F.3d at 1012.
In sum, the undersigned finds that the ALJ erred by failing to set forth clear and convincing or specific and legitimate reasons supported by substantial evidence to assign little weight to Dr. Sabahi's and PA Carter's opinions. Further, the ALJ failed to address the factors set out in 20 C.F.R. § 404.1527(c). This error is not harmless because it affected the ALJ's RFC assessment and the ultimate nondisability finding at Step Four. See Marsh v. Colvin, 792 F.3d 1170, 1172-74 (9th Cir. 2015) (“a reviewing court cannot consider an error harmless unless it can confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different disability determination.”). Accordingly, the undersigned recommends that this matter should be remanded for further administrative proceedings to reassess Dr. Sabahi's and PA Carter's opinions and continue the five-step sequential evaluation process.
V. Remedy
A federal court may affirm, modify, reverse, or remand a social security case. 42 U.S.C. § 405(g). Absent legal error or a lack of substantial evidence supporting the ALJ's findings, this Court is required to affirm the ALJ's decision. After considering the record as a whole, this Court simply determines whether there is substantial evidence for a reasonable trier of fact to accept as adequate to support the ALJ's decision. Valentine, 574 F.3d at 690.
“‘[T]he decision whether to remand the case for additional evidence or simply to award benefits is within the discretion of the court.'” Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989) (quoting Stone v. Heckler, 761 F.2d 530, 533 (9th Cir. 1985)). “Remand for further administrative proceedings is appropriate if enhancement of the record would be useful.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). Conversely, remand for an award of benefits is appropriate where:
(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant
disabled on remand.Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). “Even if those requirements are met, though, we retain ‘flexibility' in determining the appropriate remedy.” Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014) (quoting Garrison, 759 F.3d at 1021).
“[T]he required analysis centers on what the record evidence shows about the existence or non-existence of a disability.” Strauss v. Comm'r Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011). “Administrative proceedings are generally useful where the record has not been fully developed, there is a need to resolve conflicts and ambiguities, or the presentation of further evidence may well prove enlightening in light of the passage of time.” Treichler v. Comm'r Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) (internal quotations and citations omitted). “Where there is conflicting evidence, and not all essential factual issues have been resolved, a remand for an award of benefits is inappropriate.” Id. “In evaluating [whether further administrative proceedings would be useful, the Court considers] whether the record as a whole is free from conflicts, ambiguities, or gaps, whether all factual issues have been resolved, and whether the claimant's entitlement to benefits is clear under the applicable legal rules.” Id. at 1103-04. “This requirement will not be satisfied if ‘the record raises crucial questions as to the extent of [a claimant's] impairment given inconsistencies between his testimony and the medical evidence in the record,' because ‘[t]hese are exactly the sort of issues that should be remanded to the agency for further proceedings.'” Brow-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (quoting Treichler, 775 F.3d at 1105).
Here, the undersigned finds that remand for further administrative proceedings is appropriate. The ALJ erred by failing to set forth legally sufficient reasons to assign little weight to Dr. Sabahi's and PA Carter's treating physician opinions in light of Plaintiff's fibromyalgia diagnosis. Consequently, issues remain regarding Plaintiff's RFC and her ability to perform work existing in significant numbers in the national economy during the relevant time period. See Maureen S. v. Comm'r of Soc. Sec., 2019 WL 2491915, at *6 (W.D. Wash. June 14, 2019) (“A finding that a claimant has fibromyalgia does not imply that any and all limitations must be accepted.”); see also Hill v. Astrue, 698 F.3d 1153, 1162-63 (9th Cir. 2012). However, although Plaintiffs conditions may be considered severe, the undersigned offers no opinion as to whether Plaintiff is disabled within the meaning of the Act. “The touchstone for an award of benefits is the existence of a disability, not the agency's legal error.” Brown-Hunter, 806 F.3d at 495. Plaintiffs RFC and subjective symptom testimony are best reassessed in consideration of the entire record, and on remand the undersigned recommends that the ALJ give further consideration to all of the previously submitted medical testimony and lay testimony and continue the sequential evaluation process to determine whether Plaintiff is in fact disabled.
“Viewing the record as a whole [the undersigned] conclude[s] that Claimant may be disabled. But, because the record also contains cause for serious doubt, [the undersigned recommends] . . . that the district court remand to the ALJ for further proceedings on an open record.” Burrell, 775 F.3d at 1141-42. The undersigned expresses no view as to the appropriate result on remand.
VI. Recommendation
For the foregoing reasons, the Magistrate Judge recommends that the District Court, after its independent review, remand this matter for further administrative proceedings.
Pursuant to 28 U.S.C. §636(b), any party may serve and file written objections within fourteen days after being served with a copy of this Report and Recommendation. A party may respond to another party's objections within fourteen days after being served with a copy thereof. Fed.R.Civ.P. 72(b). No. reply to any response shall be filed. See Id. If objections are not timely filed, then the parties' rights to de novo review by the District Court may be deemed waived. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).