RONALD E. BUSH, Chief Magistrate Judge.
Now pending before the Court is Petitioner Lenora Hansen's Petition for Review (Dkt. 1), filed June 3, 2015, seeking review of the Social Security Administration's final decision to deny her disability benefits. This action is brought pursuant to 42 U.S.C. § 405(g). Having carefully reviewed the record and otherwise being fully advised, the Court enters the following Memorandum Decision and Order.
Petitioner applied for SSDI benefits on July 12, 2011, alleging a disability onset date of May 4, 2011. (AR 9). On that same day she also filed an application under Title XVI for supplemental security income. These claims were denied initially and again on reconsideration on January 24, 2012. (AR 9). Thereafter, Petitioner filed a request for a hearing with an Administrative Law Judge (ALJ), which occurred on July 12, 2013 in Boise, Idaho. (AR 12). (AR 28-48). ALJ John Molleur presided over the hearing, at which the Petitioner was present and represented by her attorney, Joseph P. Brown. Beth Cunningham, an impartial vocational expert, also testified at the hearing. At the time of the hearing, Petitioner was 46 years old, and had past work experience as an administrative clerk and a food service worker. (AR 19).
On August 15, 2013, the ALJ issued a decision, denying Petitioner's claims, finding that she was not disabled within the meaning of the Social Security Act. (AR 9-21). Petitioner timely requested review from the Appeals Council on October 17, 2013. (AR 5.) The Appeals Council then denied review on April 1, 2015 (AR 1-4), rendering the ALJ's decision the Commissioner's final decision. Petitioner now seeks judicial review of the Commissioner's decision to deny benefits, contending that the ALJ erred in the following ways. First, she alleges that the ALJ erred by failing to identify her chronic migraine headaches as a "severe impairment" at step two. Second, she argues that the ALJ erred by concluding that her subjective pain complaints far exceeded any objective medical evidence, and relatedly, by improperly assessing her credibility. She also argues that the ALJ erred in rejecting the opinions of her treating neurologist, Dr. Allen Han, with respect to her level of functional capacity. Finally, Petitioner argues that the ALJ erred in discounting her morbid obesity and finding that her non-compliance with treatment for that condition made her credibility suspect. The Court concludes that the ALJ committed errors in a number of respects, either by failing to apply controlling legal standards, by mis-characterizing evidence, and by ignoring evidence favorable to the claimant in such a pronounced manner that not even the generous "substantial evidence" standard can sustain the decision. For these reasons, which are discussed more thoroughly below, the Court will grant Petitioner's request for review and remand the case for an immediate entry of benefits.
To be upheld, the Commissioner's decision must be supported by substantial evidence and based on proper legal standards. 42 U.S.C. § 405(g); Smolen v. Chater, 80 F.3d 1273, 1279 (9
"Substantial evidence" is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Webb v. Barnhart, 433 F.3d 683, 686 (9
With respect to questions of fact, the role of the Court is to review the record as a whole to determine whether it contains evidence that would allow a reasonable mind to accept the conclusions of the ALJ. See Richardson, 402 U.S. at 401; see also Matney, 981 F.2d at 1019. The ALJ is responsible for determining credibility and resolving conflicts in medical testimony, and for resolving ambiguities. Andrews v. Shalala, 53 F.3d 12035, 1039 (9
With respect to questions of law, the ALJ's decision must be based on proper legal standards and will be reversed for legal error. Matney, 981 F.2d at 1019. The ALJ's construction of the Social Security Act is entitled to deference if it has a reasonable basis in law. See id. However, reviewing federal courts "will not rubber-stamp an administrative decision that is inconsistent with the statutory mandate or that frustrates the congressional purpose underlying the statute." Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).
In evaluating the evidence presented at an administrative hearing, the ALJ must follow a sequential process in determining whether a person is disabled in general (see 20 C.F.R. §§ 404.1520, 416.920) — or continues to be disabled (see 20 C.F.R. §§ 404.1594, 416.994) — within the meaning of the Social Security Act.
The first step requires the ALJ to determine whether the claimant is engaged in substantial gainful activity ("SGA"). 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). SGA is defined as work activity that is both substantial and gainful. "Substantial work activity" is work activity that involves doing significant physical or mental activities. 20 C.F.R. §§ 404.1572(a), 416.972(a). "Gainful work activity" is work that is usually done for pay or profit, whether or not a profit is realized. 20 C.F.R. §§ 404.1572(b), 416.972(b). If the claimant has engaged in SGA, disability benefits are denied, regardless of how severe her physical/mental impairments are and regardless of her age, education, and work experience. 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not engaged in SGA, the analysis proceeds to the second step. Here, the ALJ found that the claimant had not engaged in SGA since May 4, 2011, the alleged onset date of the disability. (AR 11).
The second step requires the ALJ to determine whether the claimant has a medically determinable impairment, or combination of impairments, that is severe and meets the duration requirement. 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments is "severe" within the meaning of the Social Security Act if it significantly limits an individual's ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). An impairment or combination of impairments is "not severe" when medical and other evidence establish only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on an individual's ability to work. 20 C.F.R. §§ 404.1521, 416.921. If the claimant does not have a severe medically determinable impairment or combination of impairments, disability benefits are denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). Here, the ALJ found that Petitioner had the following severe impairments: morbid obesity, osteoarthritis of the knees, hip and shoulder, mild degenerative disc disease of the lumbar spine, fibromyalgia, and adjustment disorder. (AR 11). Although Petitioner also had a history of migraine headaches, the ALJ concluded that these were not a severe impairment at step two. (AR 12).
The third step requires the ALJ to determine the medical severity of any impairments; that is, whether the claimant's impairments meet or equal a listed impairment under 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the answer is yes, the claimant is considered disabled under the Social Security Act and benefits are awarded. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant's impairments neither meet nor equal one of the listed impairments, the claimant's case cannot be resolved at step three and the evaluation proceeds to step four. 20 C.F.R. §§ 404.1520(e), 416.920(e). Here, the ALJ concluded that Petitioner did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. (AR 12-14.)
The fourth step of the evaluation process requires the ALJ to determine whether the claimant's residual functional capacity is sufficient for the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). An individual's residual functional capacity is her ability to do physical and mental work activities on a sustained basis despite limitations from her impairments. 20 C.F.R. §§ 404.1545, 416.945. Likewise, an individual's past relevant work is work performed within the last 15 years or 15 years prior to the date that disability must be established; also, the work must have lasted long enough for the claimant to learn to do the job and be engaged in substantial gainful activity. 20 C.F.R. §§ 404.1560(b), 404.1565, 416.960(b), 416.965. Here, the ALJ determined that the Petitioner had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a), with the additional limitation that she was limited to work requiring "uninvolved" three-to-four step tasks and only brief and incidental interactions with the general public. (AR 14).
In the fifth and final step, if it has been established that a claimant can no longer perform past relevant work because of his impairments, the burden shifts to the Commissioner to show that the claimant retains the ability to do alternate work and to demonstrate that such alternate work exists in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1520(f), 416.920(f); see also Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993). If the claimant is able to do other work, she is not disabled; if the claimant is not able to do other work and meets the duration requirement, she is disabled. The ALJ found, at step five, that Petitioner can no longer perform her past relevant work, but also found that she is capable of making a successful adjustment to other work that exists in significant numbers in the national economy. (AR 20).
The first assignment of error relates to the ALJ's assessment of Petitioner's migraine headaches. Despite a well-documented history of migraines dating back to at least 2007, and despite uncontroverted testimony that Petitioner had lost her prior job due to missing several days of work per month because of those headaches, the ALJ concluded that these headaches did not constitute a severe impairment at step two. This conclusion was error.
The ALJ stated that he had considered Petitioner's allegations regarding disabling headaches, but found that "recent work-ups for her neurological issues were normal per the new evidence submitted at C-13F and C-14 F, including MRI scans of the brain." (AR 12). The ALJ also noted that claimant had recently "told her treating physician, Allen Han, M.D. that she has a mild headache all day every day, but severe headaches two to three times per week; however, she also noted these headaches are effectively treated with medication." (Id.). These conclusions represented a serious misunderstanding of the relevant medical condition as well as serious misreading of the evidence.
The inquiry at step two is a "de minimis screening device to dispose of groundless claims." Smolen v. Chater, 80 F.3d at 1273, 1290 (9
The ALJ's ruling at step two effectively required Petitioner to provide "objective" evidence for her migraine headaches when no such evidence would have been attainable. As numerous courts, including the Ninth Circuit, have held, it is error to require objective evidence for conditions (like fibro-myalgia or migraine) that elude precise measurement. See, e.g. Green-Younger v. Barnhart, 335 F.3d 99, 108 (2
The ALJ's second reason for finding that Petitioner's migraines were not severe at step two rested upon a comment from Petitioner's treating neurologist, Dr. Allen Han, that her migraines were "well-controlled with medication." This reasoning was also contrary to the medical evidence under review.
Petitioner has a history of migraines dates back to at least 2007. At the hearing before the ALJ, she testified that during the 2007 time frame, she had to leave her job because she was missing too much work due to those headaches. (AR at 36). Further, records from Saltzer Medical Group (which provided Petitioner's primary care) dating from 2010 indicate that her headaches were not well-controlled at that time, (AR 510), and there are also references in these medical records to "intractable migraines." (AR 471, 473, 493, 495). Two years later, in July of 2012, records from Salzer describe Petitioner as having had "persistent headaches since 2007" and indicate also that she has had "significant difficulty controlling the headaches with various medications." (AR 452-453). Records from May of that year describe a longstanding history of migraines and indicate that "patient has not found a medication that works, she continues to have a constant headache most days." (AR 473). She described her pain that day as being "9 on a pain scale of 10 being the worst." (Id.).
During the early part of 2012 Petitioner saw Dr. Han, a neurologist, for her migraines as well as for her fibromyalgia and various other conditions. (AR 519-536). Dr. Han's records first mention migraines on January 2012. On that date, Dr. Han increased her dosage of Effexor (a painkiller) to a total of 225 mg per day. (AR 528). Six weeks later, she returned for follow up, and Dr. Han noted that "since increase in dosage, she has had vertigo and nausea" and that this was "most likely related to increasing the dosage of Effexor." Several weeks later, on June 15, 2012, she saw Dr. Han again, and he noted:
(AR 525). It was this record, and in particular, Dr. Han's comment that the particular combination of medication that Petitioner was on that day was "effective and well tolerated," that the ALJ relied upon in concluding that Petitioner's headaches were non-severe.
Although it is generally true that a condition that is effectively controlled with medication will not qualify as a severe impairment at step two, the ALJ's overarching reliance upon Dr. Han's statement, on the facts of this case, was error. To begin with, Dr. Han's statement, when read in context, clearly does not mean that Petitioner was pain free, or even that the pain from her migraines was particularly well-controlled as a general matter. When Dr. Han's comments are read in their proper context, the word "effective" clearly means that this particular combination of medications is only "effective" in bringing the most severe headaches the Petitioner was experiencing at that time under control. However, the obvious inverse implication of that statement is that Petitioner was still experiencing severe headaches, with pain at an eight or nine on a scale of ten, two or three times a week. Yet the ALJ appeared to view Dr. Han's statement as evidence that Petitioner's migraines were nothing more than a de minimis impairment that could be controlled by medication, in the same way that glasses can correct nearsightedness. That interpretation, however, is simply not supported by Dr. Han's records, or by the overall medical history, which very clearly demonstrates that Petitioner's migraines were a significant impairment that she struggled for years to treat.
Nor was the ALJ's error harmless. In making the argument that any error at step two was harmless, the Commissioner relies on two cases that stand for the proposition that error at step two can be found harmless, as long the ALJ finds in a claimant's favor at step two and considers the limitations of the rejected impairments throughout the remainder of his or her analysis. See, Lewis v. Astrue, 498 F.3d 909, 911 (9
Petitioner next argues that the ALJ's adverse credibility determination was flawed. Plainly, the ALJ's error at step two in dismissing Petitioner's migraines as a severe impairment may have affected any overall assessment of her credibility, and for this reason alone, the adverse credibility determination would require a remand. However, the Court agrees with Petitioner that the ALJ's adverse credibility determination was fundamentally flawed in other ways, separate and apart from any effects the error at step two may have had on the ALJ's subsequent analysis.
Because the record contained evidence of a number of medically determinable impairments that could give rise to Petitioner's described symptoms, and because there was no evidence that Petitioner was malingering, the ALJ was required to make specific findings as to her credibility and to identify clear and convincing reasons for each finding. Robbins v. Massanari, 466 F.3d 880, 883 (9
The ALJ's decision regarding Petitioner's lack of credibility rested on three factors: first, a perceived discrepancy between her subjective symptoms and her activities of daily living; second, a perceived discrepancy between her subjective symptoms and the overall medical evidence; and third, her purported failure to follow treatment recommendations for her obesity. (AR 17). The Court addresses each of these issues in turn.
Discrepancies between a claimant's assertions of disability and evidence as to her daily living habits may be used to support an adverse credibility finding and, here, the ALJ held that:
(AR. 17). This assessment, however, was completely inconsistent with the actual evidence in the record and the testimony from Petitioner herself.
In a function report that she filled out in October of 2011, Petitioner described a significantly circumscribed daily routine. For example, she stated that she prepares meals for herself and her family only one or two times a week, and starts a load of laundry about as often. (AR 278). She does not do housework or yard-work, she goes outside only about two or three times a week, and that when she does go out, she does not go alone because she never knows when a severe headache might strike. She also explained that she goes grocery shopping only about one or two times a month, and sometimes has to leave the shopping cart and go home due to her headaches. (AR 279). She engages in the hobbies she enjoyed prior to the alleged onset of disability, such as sewing or scrap-booking, but only about once or twice a month because the noise and movement can trigger pain. (AR 280).
The Petitioner's testimony at the hearing before the ALJ was consistent with the claims made in the function report, in that it also depicted an extremely circumscribed lifestyle. (AR 35-44). Yet, the ALJ relied on this very evidence to arrive at an adverse credibility finding, citing a perceived divergence between Petitioner's subjective symptoms and her supposedly greater ability to carry on the normal activities of daily living.
The Ninth Circuit has cautioned against a too rigid reliance on the activities of daily living as a means undermining a claimant's credibility and denying benefits. See, Garrison v. Colvin, 759 F.3d 955, 1016 (9
In determining that the medical evidence did not support Petitioner's subjective complaints, the ALJ stated:
(AR 17).
Many of these stated justifications are either contrary to the evidence or simply illogical in the context of Petitioner's fibromyalgia diagnosis. As with migraines, fibromyalgia cannot be diagnosed with the kind of objective tools (such as an MRI) that can be used to pinpoint other disorders. See, e.g. Rollins v. Massanari, 261 F.3d 853 (9
Another clear error impacting the adverse credibility determination stems from the ALJ's assessment of Petitioner's obesity. On this point, the ALJ stated:
(AR 17). The decision to base an adverse credibility determination in part upon Petitioner's alleged non-compliance with diet and exercise regimens, as well as her failure to undergo bariatric surgery, was erroneous. The Ninth Circuit addressed this very issue in Orn v. Astrue, which held:
495 F.3d 625, 639 (9
For all these reasons, the ALJ's assessment of Petitioner's credibility is not supported by clear and convincing evidence.
Petitioner next argues that the ALJ erred in discounting the opinions of her treating neurologist, Dr. Allen Han. In particular, she argues that the ALJ failed to properly credit the residual functional capacity assessment, in which Dr. Han opined that Petitioner could not complete a forty-hour workweek due to her impairments. In this RFC assessment, Dr. Han said that Ms. Hansen could sit for a maximum of two hours during an eight-hour workday, could walk or stand a maximum of one hour, and that she needed to lie down for a total of four hours during the same eight-hour period. (AR 420). Dr. Han also noted the fact that Ms. Hansen had missed over seven days per month at her previous job, and stated that she "experiences pain during all aspects of life," and that while some days were better than others, she was "never pain free." (Id.).
In rejecting Dr. Han's assessment of Petitioner's functional limitations, the ALJ wrote:
AR 18-19. The ALJ also noted that Dr. Han's opinions were not entitled to significant weight because those opinions were based on claimant's subjective complaints, which in turn were not supported by objective findings.
This reasoning was unsound. As explained above, the ALJ's credibility determination was itself flawed, and so Dr. Han's opinions cannot be discounted on the basis that they incorporated the Petitioner's own testimony. Likewise, the notion that Dr. Han's opinions were somehow inconsistent with the overall medical evidence simply cannot be supported unless one utterly discounts the possibility of disabling headaches, as the ALJ did at step two. The rest of the ALJ's reasoning regarding Dr. Han is somewhat difficult to assess, due to his failure to provide more than minimal citations to the record. However, the primary remaining reason for rejecting Dr. Han's RFC assessment appears to be that Petitioner's extensive neurological and cardiac work-up did not reflect anything unusual. (AR 519-520). Although the Court has addressed in earlier parts of this opinion the problem with the ALJ's relying too heavily on the perceived need for objective medical findings (given the nature of Petitioner's ailments) this particular aspect of the ALJ's opinion involves somewhat different issues factually, and thus merits additional discussion.
The Court has reviewed the work-up to which the ALJ was referring in the above-quoted text. In addition to the TIA work-up,
Nor do the opinions of various state agency consultants contain substantial evidence to support the ALJ's decision. It is a well-settled that the opinion of a non-examining physician cannot, by itself, constitute substantial evidence justifying the rejection of a treating physician's opinion. See, e.g., Ryan v. Commissioner of Social Security, 528 F.3d 1194, 1202 (9
The final issue is whether to remand this case to the Commissioner for further proceedings or instead, to direct that the Commissioner immediately enter an award of benefits. "Usually, if additional proceedings can remedy defects in the original administrative proceeding, a social security case should be remanded. The Social Security Act, however, makes clear that courts are empowered to affirm, modify, or reverse a decision by the Commissioner with or without remanding the cause for a rehearing" under 42 U.S.C. § 405(g). Garrison v. Colvin, 759 F.3d 995 (9
In Garrison v. Colvin, 759 F.3d 995 (9
759 F.3d 995, 1019-20. The Garrison holding allows for some flexibility in the application of these standards, however, and even if all the conditions for the application of the "credit as true" rule are satisfied, a district court may still remand for further proceedings if the "an evaluation of the record as a whole creates serious doubt that a claimant is, in fact, disabled." Id. at 1021; see also Treichler v. Commissioner of Soc. Sec., 775 F.3d 1090, 1100 (9
Petitioner meets all elements of the credit as true test. Not only did the ALJ fail to provide legally sufficient reasons for rejecting the Petitioner's own testimony as to her subjective pain symptoms, he also failed to provide a sufficient legal basis for rejecting the opinions of Dr. Han. Moreover, if Dr. Han's opinions and Petitioner's subjective testimony opinions were credited as true, there would be no doubt that Petitioner would be disabled. At the administrative hearing, the ALJ asked the Vocational Expert("VE") several questions about the effect that restrictions similar to those identified by Dr. Han would have had on Petitioner's employability. In response to this inquiry, the VE testified that an individual who had to take unscheduled breaks to lie down, who would be off task up to an hour a day due to headaches and chronic pain, and who might miss two to three days of work per month, would not be able to hold down any jobs that are available in the national economy. (AR 46-47). Accordingly, a person with limitations similar to those identified by Dr. Han would not be employable.
That leaves the first element of the Varney/Garrison test to consider: whether the record as a whole has been adequately developed and whether a remand would serve a useful purpose. The Commissioner argues that the record overall creates serious doubts as to whether Petitioner is actually disabled, but the Court disagrees. In making this argument, the Commissioner relies upon the same evidence discussed previously discussed, namely the boilerplate statements in various medical records indicating that the claimant was in no acute distress, or that she was not experiencing headaches on a particular day, during various doctor visits when she was seeking treatment for wholly unrelated conditions. For all the reasons the Court identified in section B1, supra, these records do not provide substantial evidence to support the ALJ's decision to deny benefits, nor do they create substantial doubt as to whether the Petitioner is disabled. The Court cannot discern any meaningful conflicts, ambiguities, gaps in the evidence, or factual issues left to be resolved. For these reasons, Petitioner's entitlement to benefits is clear and a remand would therefore serve no purpose, other than the impermissible purpose of allowing the ALJ a second opportunity to consider evidence that was erroneously discounted. The Court is mindful of the admonishment in Garrison against results which create an unfair "heads we win, tails let's play again" incentive for the Commissioner when it comes to deciding issues related to the weight to be accorded to a doctor's opinions or a claimant's subjective pain testimony. Garrison, 759 F.3d at 1022-23.
For all the foregoing reasons, the Petition for Review (Dkt. 1) is
