Levey v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

SHANNON L.1,

Plaintiff, Civ. No. 1:18-cv-2075-MC

v. OPINION AND ORDER

ANDREW SAUL,

Commissioner of Social Security,

Defendant.

_____________________________

MCSHANE, Judge:

Plaintiff brings this action for judicial review of the Commissioner’s decision denying her

application for supplemental security income and disability insurance benefits. This court has

jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). On February 18, 2015, Plaintiff filed an

application for benefits, alleging disability as of September 1, 2013. Tr. 15.2 After a hearing, the

administrative law judge (ALJ) determined Plaintiff was not disabled under the Social Security

Act. Tr. 15-23. Plaintiff argues the ALJ erred in finding her not credible and in rejecting the

opinion of her treating physician assistant (PA). The Court agrees. Because the ALJ’s decision is

filled with errors, and because the record reveals Plaintiff is disabled under the Act, the

Commissioner’s decision is REVERSED and this matter is remanded for an award of benefits.

1 In the interest of privacy, this Opinion and Order uses only the first name and the initial of the last name of the

non-governmental party in the case.

2 “Tr” refers to the Transcript of Social Security Administrative Record provided by the Commissioner.

STANDARD OF REVIEW

The reviewing court shall affirm the Commissioner’s decision if the decision is based on

proper legal standards and the legal findings are supported by substantial evidence in the record.

42 U.S.C. § 405(g); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).

“Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Hill

v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980

(9th Cir. 1997)). To determine whether substantial evidence exists, we review the administrative

record as a whole, weighing both the evidence that supports and that which detracts from the

ALJ’s conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989). “If the evidence can

reasonably support either affirming or reversing, ‘the reviewing court may not substitute its

judgment’ for that of the Commissioner.” Gutierrez v. Comm’r of Soc. Sec. Admin., 740 F.3d

519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)).

DISCUSSION

The Social Security Administration utilizes a five-step sequential evaluation to determine

whether a claimant is disabled. 20 C.F.R. §§ 404.1520 & 416.920 (2012). The initial burden of

proof rests upon the claimant to meet the first four steps. If the claimant satisfies his burden with

respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R. §

404.1520. At step five, the Commissioner must show that the claimant is capable of making an

adjustment to other work after considering the claimant’s residual functional capacity (RFC),

age, education, and work experience. Id. If the Commissioner fails to meet this burden, then the

claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the

Commissioner proves that the claimant is able to perform other work existing in significant

numbers in the national economy, the claimant is not disabled. Bustamante v. Massanari, 262

F.3d 949, 953-54 (9th Cir. 2001).

The ALJ concluded Plaintiff suffered from the following severe impairments: diabetic

polyneuropathy, chronic regional pain syndrome (CRPS), obesity,3 and a history of meniscus

tear in her right knee. Tr. 18. The ALJ determined that despite those impairments, Plaintiff had

the RFC to perform light work. Tr. 18. Based on that RFC, the ALJ determined at Step four that

Plaintiff could perform her past relevant work as a preschool teacher and teacher aide. Tr. 22. In

making that determination, the ALJ found Plaintiff was not credible as to the extent of her

limitations. Tr. 19-22. Intertwined with that determination is the ALJ’s weighing of the medical

opinions. Specifically, the ALJ gave great weight to the opinions of the state agency consultants

who in turn largely relied on the opinion of Mike Henderson, M.D. In May 2015 Dr. Henderson

performed a comprehensive neurologic exam of Plaintiff. Tr. 22. In contrast, the ALJ gave little

weight to the opinion of Terry Jones, PA. For eight years, Jones served as Plaintiff’s primary

care provider.4 As discussed below, the ALJ erred in relying on isolated instances of evidence

that are not supported by the record as a whole, and in failing to consider the implications of

Plaintiff’s CRPS with regard to Plaintiff’s credibility and with regard to the weight of the

medical opinion. The Court notes that this is not a particularly close question. Any objective

review of the entire medical record leads to the conclusion that Plaintiff is clearly disabled under

the Act.

From 2008 to 2013, Plaintiff worked part-time as a preschool and kindergarten teacher at

a church. Tr. 36. In 2013, Plaintiff quit when pain from neuropathy made the work intolerable.

3 Plaintiff is 5 feet 7 inches and weighed 300 pounds at the time of her application. Tr. 177.

4 At the hearing, Plaintiff stated she sees a PA rather than a physician because “that’s what I’m allowed to see

under my medical insurance. That’s who they allow me to see. . . . If there’s a bigger issue, then I go to a specialist,

like Dr. Ali, or I go get physical therapy at a hospital.” Tr. 40.

Tr. 37. “I was having a lot of pain with pins, needles, pressure, pain due to my neuropathy.” Tr.

41. In 2016, Plaintiff returned to work part time. As Plaintiff explained at the hearing:

It was neuropathy. My neuropathy is—was coming on and I couldn’t maintain a

schedule, so I stopped. I applied for Social Security. I was denied. My doctor

suggested I try part time work, that’s why I tried part time work and then the

CRPS came on and I could not continue in December. I had to stop, that was over

a year ago. . . . I could not do the job anymore. I could not have children around

my feet, so they graciously appreciated my efforts to come back, but I ultimately

could not follow through the rest of the year. . . . Here’s what happened. As soon

as I tried to go back to work, I had an injury. I dropped a roll of paper, a large roll

of paper on my foot and it injured my toe. That was as soon as I had started in the

summer. By December, there was something very strange going on. I was in a

pain situation I could not get out and that’s when I found out that I had CRPS. So

by going back to work and trying, I was injured and I kept trying for the next

several months to work out and do what I could, but I could no longer do it and

then I was diagnosed with CRPS in I think December or January.

Tr. 37-39.

Plaintiff testified that she could not currently work even if the job required no standing.

“Because I can’t stay in one position for very long. If I’m sitting, I have to keep my feet up. If

I’m standing, I can only stand for a little while, I have to sit back down. I can’t walk around for

very long. I can’t just do basic things anymore. The CRPS has really taken the last amount of

ability that I had when I first got neuropathy.” Tr. 39. Plaintiff stated that even when sitting, she

often has to elevate her legs. Tr. 42. Due to pain in her feet, Plaintiff wears slip-ons and cannot

wear normal shoes. Tr. 42. Plaintiff’s CRPS mainly impacts her left foot, where she feels

“Pressure, stabbing, crushing like there’s something sitting on my foot all the time that never

ever stops.” Tr. 42-43. Plaintiff needs a cane to steady herself. Tr. 44.

In finding Plaintiff less-than fully credible as to her limitations, the ALJ noted:

Overall, the evidence does not demonstrate that the claimant’s symptoms preclude

her from performing work related activity with the limitations set forth in the

residual functional capacity above. She testified that she is unable to stand or walk

for even short periods without using a cane but physical therapy progress notes of

November 2017 contradict her testimony. However, the physical examinations

show that she is able to ambulate without an assistive device and she has full

motor strength of the lower extremities. Nevertheless, I have considered her

complaints and incorporated postural and environmental limitations giving her

full benefit of any doubt regarding her complaints. While I find that her symptoms

might have limited her functional capacity to some degree, her allegations are not

consistent with the evidence to the extent that her capacity is so limited she is

precluded from performing her past work as a presechool teacher or teacher’s

aide.

Tr. 22 (internal citation omitted).

The ALJ noted Plaintiff’s testimony regarding the need of an assistance device is

contradicted by November 2017 physical therapy notes. This greatly overstates Plaintiff’s

“progress” during physical therapy. Plaintiff first attended physical therapy in January 2017. Tr.

596. At that time, she reported falling twice in the past month due to a lack of balance. Plaintiff

was unable to stand for more than seven minutes and unable to sit for longer than 10 minutes

without the need to elevate her feet. Tr. 597. She could not tolerate wearing socks, let alone

shoes. When asked what goal she hoped to attain from physical therapy, Plaintiff responded

“Answers as to why my left foot is so bad, to gain back movement.” Tr. 597. The physical

therapist noted Plaintiff was “unable to touch carpet within treatment room with bare feet due to

increased pain.” “Based upon the ‘Budapest criteria’, Shannon demonstrates signs/symptoms of

complex regional pain syndrome which includes sensory, vasomotor, edema, and motor/tropic

changes. She demonstrates allodynia, increased temperature in her involved extremity, increased

edema in her involved extremity and motor dysfunction in her involved extremity.” Tr. 598. The

therapist noted:

Plan to include therapeutic exercises to address deficits in [range of motion],

strength and functional activity limitations. Manual therapy techniques will be

administered to address pain management, edema, [range of motion] and joint

restrictions. Modalities will be applied to relieve pain, decrease edema, aide in

healing, and/or to increase functional abilities.

Tr. 598.

By July 2017, Plaintiff’s physical therapist noted Plaintiff still suffered from “Chronic

pain with high reactivity.” Tr. 646. She still experienced more pain than indicated merely by

objective findings; i.e., “Allodynia and heperalgesia w/ suggestion of general central

sensitization as evidenced w/ filament testing and pain pressure thresholds respectively.”5 Tr.

646. Her therapist noted “There are significant impairments and dysfunctions including loss of

motion, strength, balance, endurance, and function. Presents w/ significant reported disability,

near bedridden status. Psychosocial overlay is present with signs and declarations of depression

and anxiety that may be influencing pain perceptions. There is also an admitted sense of learned

helplessness that is confirmed with a significantly low level of pain self-efficacy. She has a fair

prognosis.” Tr. 646. “Pain significantly limits participation in therapy,” Tr. 648, and the therapist

deferred many tests due to hypersensitivity, Tr. 659. At this time, Plaintiff was unable to perform

heel raises. Tr. 659.

Plaintiff returned to physical therapy in September 2017, ready to “initiate therapy stating

she is ready and no longer grieving after the loss of her husband.” Tr. 656. Plaintiff suffered

throbbing pain in her foot and complained her foot felt like it “does not belong to her.” Tr. 656.

The therapist reported “Pain is significant!” Tr. 656. The ALJ was correct to note Plaintiff made

progress, but failed to put that progress in perspective, especially in relation to the baseline level

Plaintiff started physical therapy from. For instance, in September, Plaintiff made “progress” in

the form of an improved gait pattern and that she was now able to go from sit to standing

position five times. Tr. 656. Although Plaintiff made “progress,” she still had not met her first

physical therapy goals of being able to stand on the carpet without shoes or socks or doing more

than five squats with equal weight distribution. Tr. 656.

5 As described below, it is perfectly normal for a person diagnosed with CRPS to experience pain that, absent CRPS,

would be considered to be out of proportion to any objective findings. Indeed, that is the very nature of CRPS.

In October, Plaintiff continued to make progress, but experienced increased pain with the

increased movement. Tr. 662. “There is no change in the pain, and her (L) ankle/foot still do not

feel like it is a part of her body.” Tr. 662. Even with this progress, Plaintiff was rather limited.

“Progress” in this sense was merely being able to complete two laps walking forward in bars,

utilizing her upper extremities for support, and walking 250 feet (with the assistance of walking

sticks) out to her car. Tr. 663. For the first time, on the last day of October 2017, Plaintiff met a

PT progress goal. Tr. 696. This goal was merely to “progress to standing on carpet without

shoes/socks.” She continued to work towards each of her other PT goals. Despite making

progress, the goal for the next session was simply to be “able to transfer from sitting to supine

without assistance for left extremity motion.” Tr. 664.

In November 2017—the month the ALJ pointed to in finding Plaintiff not credible—

Plaintiff “Reports increasing sensitivity and pain into the ankle.” Tr. 681. Objective notes

indicate that Plaintiff “demonstrate[ed] guarded trunk with minimal step-through pattern and

inconsistent step length w/ (R) LE during stance phase on (L). Persistent minimal toe off (L).”

Tr. 681. Plaintiff could now complete three laps walking in the bars, although she still required

support from her upper extremities. Tr. 681. Her therapist wrote, “PT continued to observe

approximately 50% recruitment in (L) ankle/foot compared to (R) and significant

hypersensitivity noted with light touch.” Although Plaintiff was making improvement, she was

still using a harness to limit weight bearing during physical therapy sessions. Tr. 681 (noting

Plaintiff used “Solo-Step and Bioldex”). Later that month, Plaintiff still needed to use her arms

for support and stability when walking in the bars. Tr. 688. The therapist noted Plaintiff “has

been trying to walk more. Increased numbness in foot with prolonged walking (⁓75’).

Sometimes the numbness turns into a feeling like the foot is being crushed. There is still no

change in foot/toe pain.” Tr. 695.

The ALJ concluded that “She testified that she is unable to stand or walk for even short

periods without using a cane but physical therapy progress notes of November 2017 contradict

her testimony.” Tr. 22. The ALJ’s finding, however, is directly contradicted by physical therapy

notes from November 2017. As detailed above, in November 2017, Plaintiff was still using her

upper extremities for support and stability when walking in the bars. Tr. 688. Although Plaintiff

was walking further in November 2017, this merely meant Plaintiff now walked approximately

75 feet at one time. Tr. 695. And as Plaintiff walked even this short distance, her pain increased.

In fact, physical therapy notes indicate that it was only in November 2017 was Plaintiff “able to

put her slippers on by herself now.” Tr. 709. Rather than contradicting Plaintiff’s testimony that

she needs a cane to walk or stand for even a short time, notes from Plaintiff’s final physical

therapy session in November 2017 confirms that at that time, Plaintiff could stand for only 2-3

seconds on her right leg without utilizing upper extremity support. Tr. 717. Plaintiff’s left leg

was worse, and she could stand only one second on this leg without using her arms for support.

Tr. 717. The ALJ failed to place Plaintiff’s “progress” in context.

The ALJ also concluded Plaintiff’s “function report indicates that she is capable of

managing personal care, completing a variety of household chores, shopping in stores, driving,

caring for others, and preparing simple meals in spite of her pain.” Tr. 21. The ALJ overstated

Plaintiff’s activities of daily living.

In April 2015, Plaintiff filled out a function report. Regarding preparing meals, Plaintiff

wrote that she does not spend more than 15 minutes making meals. Tr. 204. “I prepare more

sandwiches for self and family because they are quick. I use crock pot because it is easy and I

can quickly toss ingredients in to cook all day for an evening meal.” Although Plaintiff

acknowledged doing some household chores, she explicitly wrote that these were small chores

for only small periods of time. Tr. 205 (noting she will “spot sweep in small areas, fold clothes in

small amounts.”). Plaintiff stated that although she folds laundry, she does this chore while

seated. Tr. 204. While Plaintiff acknowledged shopping for groceries once a week, she noted she

accomplished this task only with the aid of a motorized cart. Tr. 206. Plaintiff explained that

even with the cart, she had to finish in under an hour or her feet would start to burn. Tr. 206. And

while Plaintiff cared for her children, her stated activities did not conflict with her alleged

limitations. Her children were aged 12, 12, 13, and 17. Plaintiff woke them up for school and

noted the children are in an “after school program so they can stay active.” Tr. 203. Plaintiff

wrote, “They have some issues due to being adopted and need a lot of emotional support, which I

provide from my chair because my foot has to stay up.” Tr. 203. None of these activities indicate

Plaintiff could sustain full-time employment. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir.

2007) (activities that lack a “meaningful relationship to the activities of the workplace” do not

support an adverse credibility finding). And none of the activities—including providing

emotional support (from a chair) for adolescent children—are inconsistent with Plaintiff’s

alleged limitations.6

Plaintiff’s daughter submitted a third-party function report. Tr. 210. That report generally

mirrors Plaintiff’s own. Rather than alleging Plaintiff was completely bedridden, Plaintiff’s

daughter noted Plaintiff made very light meals and performs “short increments of light house

keeping.” Tr. 211. With respect to all of Plaintiff’s activities, her daughter clearly noted Plaintiff

6 If anything, Plaintiff’s functional report is consistent with the record as a whole. For example, Plaintiff wrote in

April 2015 that she could walk perhaps 70 feet before needing to rest. Tr. 207. Two years later, Plaintiff’s physical

therapist noted that although Plaintiff recently progressed to walking approximately 75 feet at one time, this came

with an increase in pain. Tr. 695.

only performed the activities “Pain Level permitting.” Tr. 211 (emphasis in original). The ALJ

largely ignored this function report. In doing so, the ALJ concluded:

The accuracy of the conclusions made by third-party sources is questionable

because they are not medically trained to make exacting observations as to dates,

frequencies, types, and degrees of medical signs and symptoms, or of the

frequency or intensity of unusual moods or mannerisms. Moreover, by virtue of

the relationship with the claimant, they cannot be considered a disinterested third

party witness whose reports of restriction in functioning would not tend to be

discolored by affection for the claimant and a natural tendency to agree with the

symptoms and limitations the claimant alleges.

Tr. 21.

The ALJ appears to believe that she need only consider opinions of medically trained

individuals who lack any relation to the claimant. The regulations, however, clearly state that the

ALJ must consider nonmedical “other source” opinions. 20 C.F.R. § 404.1529(c)(3). Contrary to

the ALJ’s conclusion, lay testimony need not be backed by any particular expertise in order to be

entitled to consideration. Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012) (“Lay testimony

as to claimant’s symptoms or how an impairment affects the claimant’s ability to work is

competent evidence that the ALJ must take into account.”). And the mere fact that Plaintiff’s

daughter was related to Plaintiff is not a germane reason to reject the daughter’s report. Dodrill v.

Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993) (“Although eyewitnesses have to rely to some

extent on communications with the claimant in ascertaining whether she is disabled or

malingering, we have held that friends and family members in a position to observe a claimant’s

symptoms and daily activities are competent to testify as to her condition.”).7

7 The ALJ also appears to have held Plaintiff’s unsuccessful work attempt against her. Tr. 17-18 (finding Plaintiff’s

unsuccessful attempt to return to work part time for five months in 2016 qualified as substantial gainful

employment). As noted by Plaintiff, her earnings during this five month period did not rise to “substantial gainful

activity.” Pl.’s Opening Br. 18. “An ALJ may not rely upon an unsuccessful work attempt to find a claimant not

credible. . . . In fact, an attempt to return to substantial gainful activity, rendered unsuccessful solely by the

claimant’s symptoms and limitations, strengthens a claimant’s credibility. See [Lingenfelter v. Astrue, 504 F.3d

1028, 1038 (9th Cir. 2007).” Jalexi O. v. Berryhill, No. 6:17-cv-00172-MC, 2018 WL 4931996 at *8 (D. Or. 2018).

Where, as here, there is no evidence of malingering, the ALJ may only reject the

claimant’s testimony by offering clear and convincing reasons for doing so. Tommasetti v.

Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). The ALJ provided no legitimate reasons, let alone

clear and convincing reasons, for finding Plaintiff not credible as to the extent of her limitations.

The ALJ erred in cherry picking certain physical therapy notes referencing Plaintiff’s “progress”

and using those notes to find Plaintiff overstated her own limitations. See Garrison v. Colvin,

759 F.3d 995, 1017 (9th Cir. 2014) (error to point to isolated instances of improvement in

rejecting a claimant’s testimony). This error was not harmless, and, as discussed below, appears

to be intertwined with the ALJ’s erroneous weighing of the medical evidence.

Terry Jones, PA, had an eight-year treating relationship as Plaintiff’s primary care

provider. Tr. 620. On June 30, 2017, Jones filled out a CRPS Medical Source Statement

outlining his opinions as to Plaintiff’s abilities. Tr. 620-23. Jones noted Plaintiff suffered from

the following CRPS symptoms: increased sensitivity to touch; burning, aching or searing pain

initially located to the site of injury; restricted mobility; and abnormal sensations of heat or cold.

Tr. 620. Jones felt Plaintiff could stand between five and ten minutes before needing to sit or

walk around. Tr. 621. In an eight-hour day, Plaintiff could stand/walk for less-than two hours

and sit at least six hours. Plaintiff would need a job that allowed switching between standing and

sitting, and would need to walk every hour for about three minutes. Due to muscle weakness and

pain or numbness, Plaintiff would need hourly, unscheduled 15-minute breaks on an hourly

basis. Tr. 621-22. Jones noted that due to left foot swelling, Plaintiff would need to elevate her

legs above her head on an hourly basis and, when standing or walking, would need a walker. Tr.

622. Due to pain and side effects from medication, Plaintiff would be off task 25% or more of

the workday. Tr. 623. Jones wrote that although Plaintiff had good and bad days, she “rarely”

had good days. Finally, Jones noted Plaintiff would miss more than four days every month and

indicated his opinion reflected Plaintiff’s symptoms and limitations from May 2015 on.

Recognizing the realities of today’s healthcare, the agency issued guidance concerning

“other source” opinions from those, like PAs, who are not “acceptable medical sources:”

Information from these “other sources” cannot establish the existence of a

medically determinable impairment. Instead, there must be evidence from an

“acceptable medical source” for this purpose. However, information from such

“other sources” may be based on special knowledge of the individual and may

provide insight into the severity of the impairment(s) and how it affects the

individual’s ability to function.

* * * *

With the growth of managed health care in recent years and the emphasis on

containing medical costs, medical sources who are not “acceptable medical

sources,” such as nurse practitioners, physician assistants, and licensed clinical

social workers, have increasingly assumed a greater percentage of the treatment

and evaluation functions previously handled primarily by physicians and

psychologists. Opinions from these medical sources, who are not technically

deemed “acceptable medical sources” under our rules, are important and should

be evaluated on key issues such as impairment severity and functional effects,

along with the other relevant evidence in the file.

* * * *

Although [the regulations] do not address explicitly how to evaluate evidence

(including opinions) from “other sources,” they do require consideration of such

evidence when evaluating an “acceptable medical source’s” opinion. For

example, SSA’s regulations include a provision that requires adjudicators to

consider any other factors brought to our attention, or of which we are aware,

which tend to support or contradict a medical opinion. Information, including

opinions, from “other sources”—both medical sources and “non-medical

sources”—can be important in this regard in addition, and as already noted, the

Act requires us to consider all of the available evidence in this individual’s case

record in every case.

SSR 06-03P, available at 2006 WL 2329939 at **2-4.

As an “other source” opinion, the ALJ was required to provide germane reasons for

rejecting Jones’s opinion. Molina, 674 F.3d at 1111) (as physician’s assistant is not an “accepted

medical source,” ALJ must provide germane reasons to reject it). The ALJ gave little weight to

Jones’s opinion, stating:

On December 18, 2017, in direct contrast to improvements made in physical

therapy, the claimant reported to Terry Jones, physician’s assistant (PA), that her

CRPS was “out of control”. During the first half of claimant’s physical therapy

sessions, her PA opined that the claimant would be able to sit for at least six hours

and stand/walk less than two hours in an eight hour workday due to symptoms of

CRPS. However, she must walk every hour for three minutes and take

unscheduled 15 minute breaks on an hourly basis and she would miss more than

four days of work per month. I accord little weight to this opinion, as it is wholly

inconsistent with the evidence. The PA endorsed an eight-year treating

relationship concluding that the claimant is extremely limited in functioning with

the likelihood of multiple absences due to her symptoms. However, the PA did

not have the benefit of reviewing the entire record including the claimant’s

physical therapy progress and her ability to return to work as a preschool teacher

until she injured her foot.

Tr. 20-21 (internal citations omitted).

The ALJ failed to provide a germane reason for rejecting Jones’s opinion. The Court

previously outlined the ALJ’s distortion of the record in pointing to Plaintiff’s “progress” in

physical therapy. In no way do the physical therapy notes clash with Plaintiff’s December 2017

statement to Jones that her CRPS was “out of control.” Contrary to the ALJ’s finding, Jones’s

opinion was entirely consistent with the record as a whole.

The ALJ’s finding that Jones was unaware of Plaintiff’s “ability to return to work as a

preschool teacher until she injured her foot” is contradicted by the treatment notes. In a June 29,

2017 treatment note, Jones noted Plaintiff “dropped a roll of bulletin board work paper on her

forefoot approximately [one] year ago since then she has had nearly uncontrollable pain swelling

trophic changes in the left foot [and] . . . she is not able to walk more than a few minutes in fact

she walked with a walker she was a schoolteacher but is unable to continue her job.” Tr. 388. As

described above, Plaintiff dropped the roll of paper on her foot in July 2016, right at the start of

her five-month, part-time, unsuccessful work attempt. In the “Plan” section of the June 29, Jones

wrote, “this is a pleasant female with multiple issues she has tried to continue working but her

issues have made it impossible.” Tr. 391.

The ALJ’s decision to give no weight to Jones’s opinion because he allegedly “did not

have the benefit of reviewing the entire record” is not a germane reason, especially when

juxtaposed against the ALJ’s decision to give great weight to the opinion of the state reviewing

physician. In contrast to Jones’s eight-year treating history of Plaintiff, the reviewing doctor

never laid eyes on Plaintiff. Additionally, the agency doctor provided his opinion on October 1,

2015, nearly two years before Jones provided his opinion. The reviewing doctor gave “full

weight” to Dr. Henderson’s opinion from May 2015. Tr. 75 (Dr. Henderson’s “Opinion given

full weight. She showed poor effort at this exam. Totality of evidence doesn’t support the level

of disability that clmt alleges.”) Tr. 75.

The reviewing physician’s opinion is understandable given that in October 2015, Plaintiff

had yet to be diagnosed with CRPS. In early 2017, Jones suspected Plaintiff had CRPS and

referred her to a neurologist. Tr. 412. On May 9, 2017, Plaintiff saw Zakir Ali, M.D. Tr. 382-83.

Dr. Ali, a neurologist, diagnosed Plaintiff with CRPS and explained:8

Shannon has diabetes and a baseline of diabetic neuropathy. She was a

schoolteacher and had a roll of bulletin board paper fall on the left foot last year.

Secondary to that she developed considerable pain and swelling in the left foot.

Since then, the pain continues. The swelling continues. She has color changes in

the left foot and nail changes. This presentation is typical for CRPS type 1. I

informed her there is no specific test for this condition. Continue with clinical

management with pain management, physical therapy amongst others. If

symptoms worsen, pain management referral may be considered.

Tr. 383.

Social Security Ruling 03-2P provides guidance for evaluating cases involving CRPS.

SSR 03-2P, available at 2003 WL 22399117. The regulation recognizes that CRPS is “a unique

8 A few years earlier, Dr. Ali diagnosed Plaintiff with polyneuropathy. Tr. 382.

clinical syndrome that may develop following trauma. This syndrome is characterized by

complaints of intense pain and typically includes signs of autonomic dysfunction.” Id. at *1. The

regulations provide:

The most common acute clinical manifestations include complaints of intense

pain and findings indicative of autonomic dysfunction at the site of the

precipitating trauma. . . . It is characteristic of this syndrome that the degree of

pain reported is out of proportion to the severity of the injury sustained by the

individual. . . . Abnormal sympathetic nervous system function may produce

inappropriate or exaggerated neural signals that may be misinterpreted as pain.

. . . CRPS patients typically report persistent, burning, aching or searing pain that

is initially localized to the site of the injury. The involved area usually has

increased sensitivity to touch. The degree of reported pain is often out of

proportion to the severity of the precipitating injury.

Id. at **2-3.

With the above in mind, the Court turns to Dr. Henderson’s May 19, 2015

Comprehensive Neurological Exam of Plaintiff. Dr. Henderson reported Plaintiff could not feel

her feet and has to wear slippers. Tr. 339. “She worked as a kindergarten teacher for years and

can’t get on the floor and kids hit the legs which is painful.” Tr. 339. Dr. Henderson noted

Plaintiff reported being able to sit for two hours, stand for four minutes, and walk for three

minutes. Tr. 340. Dr. Henderson observed “Claimant had to use the back entrance to avoid about

½ flight of stairs and was using a walker.” Tr. 340. On examination:

sensation is painfully hypersensitive to pinwheel, light brush over the legs

laterally, diffusely throughout the left foot and diffusely throughout the right foot.

The left foot was worse than the right foot and she would withdraw in anticipation

of even superficial touch. However during other parts of the test, did not have any

hypersensitivity in the left foot while palpating relatively firmly. The left toe had

abnormal sensation to vibration and position sense. Right toe had normal

sensation to vibration and position sense.

Tr. 341.

Dr. Henderson’s exam consisted of a “Comprehensive neurologic exam for diabetes,

neuropathy, morbid obesity and hypertension.” Tr. 339. Dr. Henderson did not diagnose Plaintiff

with CRPS (as that was beyond the scope of the examination). Dr. Henderson did, however,

diagnose Plaintiff with neuropathy, and offered the following opinion:

However, she gave poor effort during testing, had a significant emotional overlay

to the presentation and there were significant discrepancies with sensory testing

and purported hypersensitivity. This makes it difficult to confirm the severity of

her symptoms and the necessity of a walker. My best guess is that she does not

need a walker and should be able to walk normally. Therefore, no restriction for

sitting, standing or walking.

Tr. 341.

As with the state agency doctor, Dr. Henderson’s opinion is understandable due to the

fact he was not looking for any signs or symptoms of CRPD. Dr. Azir’s later diagnosis of CRPS,

however, necessarily changes how one views both Dr. Henderson’s opinion, and the reviewing

physician who gave Dr. Henderson’s opinion “full weight.” After all, the regulations recognize

that “It is characteristic of this syndrome that the degree of pain reported is out of proportion to

the severity of the injury. . . . CRPS patients typically report persistent, burning, aching or

searing pain that is initially localized to the site of the injury. The involved area usually has

increased sensitivity to touch.” SSR 03-2P at **1-2. When viewed in the appropriate context, Dr.

Henderson’s opinion that Plaintiff gave poor effort and exhibited “purported hypersensitivity” is

explained by the very nature of CRPD.

Where, as here, there exists conflicting medical evidence, the ALJ is charged with

determining credibility and resolving any conflicts. Chaudhry v. Astrue, 688 F.3d 661, 671 (9th

Cir. 2012). As described above, the ALJ erred by not providing a germane reason to reject the

opinion of Plaintiff’s PA. That opinion was consistent with the record as a whole and, unlike the

opinions of Dr. Henderson or the reviewing doctor, was made in light of Plaintiff’s CRPS

diagnosis. It was error for the ALJ to acknowledge that Plaintiff’s CRPS qualified as a severe

impairment, Tr. 18, and then use the syndrome’s symptoms and characteristics against Plaintiff

in both the credibility determination and in weighing the medical opinions.

As the ALJ erred, the question is whether to remand for further administrative

proceedings or an award of benefits. Generally, “when an ALJ’s denial of benefits is not

supported by the record, ‘the proper course, except in rare circumstances, is to remand to the

agency for additional investigation or explanation.’” Hill v. Astrue, 698 F.3d 1153, 1162 (9th Cir.

2012), quoting Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). However, an award of

benefits can be directed “where the record has been fully developed and where further

administrative proceedings would serve no useful purpose.” Smolen v. Chater, 80 F.3d 1273,

1292 (9th Cir. 1996). Remand for calculation of benefits is only appropriate where the credit-as-

true standard has been satisfied, which requires:

(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, 759 F.3d at 1020 (citations omitted).

This is a rare instance where remand for an award of benefits is appropriate. The ALJ

erred in rejecting Plaintiff’s testimony regarding her symptoms and limitations and in giving no

weight to the opinion of Jones, her primary care provider over the course of several years. The

opinions relied on by the ALJ in determining Plaintiff could perform light work were provided

without the benefit of understanding Plaintiff suffered from CRPS. Taken as true, the rejected

evidence establishes Plaintiff is disabled. Jones opined that as of May 2015, Plaintiff’s symptoms

would cause her to miss more than four days of work each month.9 Tr. 623. At the hearing, the

vocational expert testified that anyone missing more than one day of work each month would not

9 Plaintiff also testified she would miss more than four days of work each month. Tr. 45.

be employable. Tr. 50. As Plaintiff could not sustain gainful employment in any job, remand for

additional proceedings would serve no useful purpose.

CONCLUSION

The decision of the Commissioner is REVERSED and this matter is REMANDED to the

Commissioner for the immediate calculation and payment of benefits.

IT IS SO ORDERED.

DATED this 17th day of March, 2020.

_______/s/ Michael J. McShane________

Michael McShane

United States District Judge