Howarth v. Commissioner Social Security Administration

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

EUGENE DIVISION

TRAVIS H.,1

Plaintiff,

Case No. 6:20-cv-00479-YY

v.

OPINION AND ORDER

COMMISSIONER SOCIAL SECURITY

ADMINISTRATION,

Defendant.

YOU, Magistrate Judge:

Plaintiff Travis H. seeks judicial review of the final decision by the Social Security

Commissioner (“Commissioner”) denying his application for Disability Insurance Benefits

(“DIB”) under Title II of the Act, 42 U.S.C. §§ 401-433. This court has jurisdiction to review

the Commissioner’s decision pursuant to 42 U.S.C. §§ 405(g) and 1383(g)(3). For the reasons

set forth below, that decision is REVERSED AND REMANDED for further proceedings.

Plaintiff originally filed for DIB on June 6, 2017, alleging disability beginning on

November 1, 2016. Tr. 159-67. At the hearing, plaintiff amended his alleged onset date to

1 In the interest of privacy, the court uses only plaintiff ‘s first name and the first initial of his last

name.

November 15, 2016. Tr. 36. His application was initially denied on August 8, 2017, and upon

reconsideration on November 15, 2017. Tr. 63, 95. Plaintiff requested a hearing before an

administrative law judge (“ALJ”), which took place on January 8, 2019. Tr. 32-62. After

receiving testimony from plaintiff and a vocational expert (“VE”), ALJ Cynthia Rosa issued a

decision on March 26, 2019, finding plaintiff not disabled within the meaning of the Act. Tr. 13-

26. The Appeals Council denied plaintiff’s request for review on March 30, 2020. Tr. 1-3.

Therefore, the ALJ’s decision is the Commissioner’s final decision and subject to review by this

court. 20 C.F.R. § 416.1481.

STANDARD OF REVIEW

The reviewing court must affirm the Commissioner’s decision if it is based on proper

legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C.

§ 405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). This court must weigh the

evidence that supports and detracts from the ALJ’s conclusion and “‘may not affirm simply by

isolating a specific quantum of supporting evidence.’” Garrison v. Colvin, 759 F.3d 995, 1009-

10 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). This

court may not substitute its judgment for that of the Commissioner when the evidence can

reasonably support either affirming or reversing the decision. Parra v. Astrue, 481 F.3d 742, 746

(9th Cir. 2007). Instead, where the evidence is susceptible to more than one rational

interpretation, the Commissioner’s decision must be upheld if it is “supported by inferences

reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)

(citation omitted); see also Lingenfelter, 504 F.3d at 1035.

SEQUENTIAL ANALYSIS AND ALJ FINDINGS

Disability is the “inability to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be expected to result in death

or which has lasted or can be expected to last for a continuous period of not less than 12

months.” 42 U.S.C. § 423(d)(1)(A). The ALJ engages in a five-step sequential inquiry to

determine whether a claimant is disabled within the meaning of the Act. 20 C.F.R. § 416.920;

Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (discussing Tackett v. Apfel, 180

F.3d 1094, 1098-99 (9th Cir. 1999)).

At step one, the ALJ found plaintiff had not engaged in substantial gainful activity since

November 15, 2016, the alleged onset date. Tr. 15. At step two, the ALJ determined plaintiff

suffered from the following severe impairment: multiple sclerosis (“MS”). Id. The ALJ

recognized another impairment in the record, i.e., depression, but concluded this condition to be

non-severe. Tr. 16.

At step three, the ALJ found plaintiff did not have an impairment or combination of

impairments that met or medically equaled a listed impairment. Tr. 18. The ALJ next assessed

plaintiff’s residual functional capacity (“RFC”) and determined he could perform light work as

defined in 20 C.F.R. § 416.967(b), except plaintiff can occasionally climb ramps and stairs; can

never climb ropes, ladders, or scaffolds; can never balance; can occasionally stoop, crouch,

crawl, and kneel; should change position between sitting and standing in 30-60 minute intervals

for a maximum sitting time of six hours in an eight hour day; can frequently finger and handle

bilaterally; and should avoid exposure to hazards. Tr. 18.

At step four, the ALJ found plaintiff incapable of performing past relevant work. Tr. 24.

At step five, the ALJ found that considering plaintiff’s age, education, work experience,

and RFC, he could perform jobs that existed in significant numbers in the national economy

including final graphic arts technician and sign erector/repairer. Tr. 24.

Thus, the ALJ concluded plaintiff was not disabled. Tr. 26.

DISCUSSION

Plaintiff argues the ALJ erred by (1) improperly discounting his subjective symptom

testimony; (2) erroneously assessing the medical opinion evidence of Kyle Smoot, M.D., and

Brittany Farro, PA-C; and (3) formulating an erroneous RFC.

I. Subjective Symptom Testimony

When a claimant has medically documented impairments that could reasonably be

expected to produce some degree of the symptoms complained of and the record contains no

affirmative evidence of malingering, “the ALJ can reject the claimant’s testimony about the

severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so.”

Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (citation omitted). A general assertion that

the claimant is not credible is insufficient; the ALJ must “state which . . . testimony is not

credible and what evidence suggests the complaints are not credible.” Dodrill v. Shalala, 12

F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be “sufficiently specific to permit the

reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant’s testimony.”

Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted). If the “ALJ’s

credibility finding is supported by substantial evidence in the record, [the court] may not engage

in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted).

Effective March 28, 2016, the Commissioner superseded Social Security Ruling (“SSR”)

96-7p, governing the assessment of a claimant’s “credibility,” and replaced it with SSR 16-3p.

See SSR 16-3p, available at 2016 WL 1119029. SSR 16-3p eliminates the reference to

“credibility,” clarifies that “subjective symptom evaluation is not an examination of an

individual’s character,” and requires the ALJ to consider all of the evidence in an individual’s

record when evaluating the intensity and persistence of symptoms. Id. at *1-2. The ALJ must

examine “the entire case record, including the objective medical evidence; an individual’s

statements about the intensity, persistence, and limiting effects of symptoms; statements and

other information provided by medical sources and other persons; and any other relevant

evidence in the individual’s case record.” Id. at *4.

Here, the ALJ found that plaintiff’s “medically determinable impairments could

reasonably be expected to cause the alleged symptoms; however, [his] statements concerning the

intensity, persistence and limiting effects of these symptoms are not entirely consistent with the

medical evidence and other evidence in the record[.]” Tr. 19. Each of the ALJ’s reasons is

examined in turn.

A. Objective Medical Evidence

In evaluating a claimant’s subjective symptom testimony, an ALJ may consider whether

it is supported with objective medical evidence. 20 C.F.R. §§ 404.1529(c)(1)-(3), 416.929(c)(1)-

(3); SSR 16-3p, available at 2017 WL 5180304, at *7-8. When coupled with other permissible

reasons, inconsistencies between a claimant’s allegations and objective medical evidence may be

used to discount a claimant’s testimony. Tatyana K. v. Berryhill, No. 3:17-cv-01816-AC, 2019

WL 464965, at *4 (D. Or. Feb. 6, 2019) (citing Batson v. Comm’r Soc. Sec. Admin., 359 F.3d

1190, 1197-98 (9th Cir. 2004)). Otherwise stated, a lack of objective medical evidence may not

form the ALJ’s sole basis for discounting a claimant’s testimony. Tammy S. v. Comm’r Soc. Sec.

Admin., No. 6:17-cv-01562-HZ, 2018 WL 5924505, at *4 (D. Or. Nov. 10, 2018) (citing Reddick

v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“[T]he Commissioner may not discredit [a]

claimant’s testimony as to the severity of symptoms merely because they are unsupported by

objective medical evidence.”)); see C.F.R. § 404.1529(c)(2) (“[W]e will not reject your

statements about the intensity and persistence of your pain or other symptoms or about the effect

your symptoms have on your ability to work solely because the available objective medical

evidence does not substantiate your statements.). Moreover, an ALJ’s rejection of symptom

testimony “must be sufficiently specific to allow a reviewing court to conclude the adjudicator

rejected the claimant’s testimony on permissible grounds.” Brown–Hunter v. Colvin, 806 F.3d

487, 493 (9th Cir. 2015) (citations and internal quotation marks omitted).

Here, the ALJ noted that plaintiff “alleges he cannot work because of the symptoms of

his multiple sclerosis, which include overwhelming fatigue and poor balance as well as pain and

numbness in his hands, muscle spasms in his legs, and general diminishment of his coordination

and vision.” Tr. 18. The ALJ also recognized that plaintiff’s MS symptoms had worsened:

A review of the medical record shows that the claimant was seen in the emergency

department in April of 2017 for . . . blurry vision, hand and leg numbness, changes

in his coordination, and intermittent dizziness that had been progressively

worsening for “the last couple months” following a long period (six years) of

doing well without treatment for his multiple sclerosis.

Tr. 19 (citing Tr. 325, 430). However, the ALJ found that “[w]hile enough evidence is included

in the file to identify his impairments, the claimant’s medical record does not support the alleged

severity of his symptoms.” Tr. 19.

The ALJ made eight paragraphs of specific findings, extensively identifying evidence in

the record that contradicted the extent of plaintiff’s claimed limitations (Tr. 19-20): e.g.,

“[w]hile the examination notes of Derek Halvorson, MD show the claimant had generalized

weakness, his gait was stable” (citing Ex. 3F/ 12 and 5F/3); “[n]otes by Kyle Smoot, MD from

August of 2017 show that the claimant reported he was ‘doing well’ despite some occasional

dizziness and blurred vision, and that these symptoms had actually improved since earlier in the

year[,]” (Ex. 11F/6), “he had no new symptoms to report” (Ex. 11F/6-7), “intact coordination”

(Ex. 11F/9), and “claimant showed slight improvement compared to earlier in the year . . . with

no new focal deficits” (Ex. 11F/11); “[n]otes by Stuart Rosenblum, MD, from October and

December of 2017 show that despite reports of pain, numbness, weakness, and muscle spasms,

the claimant stated that he had improvement in his general activity level, walking ability, normal

work (which includes both work outside the home and housework), sexual activity, and sleep[,]”

(Ex. 18F/6 and 9), and “Dr. Rosenblum’s examinations showed that the claimant had grossly

intact motor function” (Ex. 18F/6-7 and 9-10); “Shea DeKlotz, PA-C, saw the claimant in April

of 2018 . . . [and] found that while the claimant had an antalgic gait, he was not in acute distress,

[and] demonstrated grossly intact motor and sensory functioning” (Ex. 18F/3); and in February

2018, Leah Gaedeke, FNP, found that plaintiff had “intact coordination” and “showed slight

improvement and found . . . no new focal deficits” (Ex. 16F/4-5).

In sum, the ALJ “point[ed] to specific facts in the record which demonstrate[d] [plaintiff]

is in less pain than [he] claims.” Dodrill, 12 F.3d at 918.

B. Activities of Daily Living

An ALJ may invoke activities of daily living in the context of discrediting subjective

symptom testimony to illustrate a contradiction in previous testimony or demonstrate that the

activities meet the threshold for transferable work skills. Orn v. Astrue, 495 F.3d 625, 639 (9th

Cir. 2007). A claimant need not, however, be utterly incapacitated to receive disability benefits,

and sporadic completion of minimal activities is insufficient to support a negative finding.

Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001); see also Reddick, 157 F.3d at 722). The

ALJ must identify specific testimony that was inconsistent with the plaintiff’s activities of daily

living or how the plaintiff’s capacities were transferable to a work setting. See Holohan v.

Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (“[T]he ALJ must specifically identify the

testimony she or he finds not to be credible and must explain what evidence undermines the

testimony.”) (citation omitted); Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (“[I]f a

claimant is able to spend a substantial portion of the day engaged in pursuits involving the

performance of functions that are transferrable to a work setting, a specific finding as to this fact

may be sufficient.”) (emphasis added).

The ALJ noted:

In a Function Report dated July 5, 2017, the claimant indicated that he has

difficulty with lifting, squatting, bending, standing, reaching, walking, kneeling,

stair climbing, seeing, memory, completing tasks, concentration, understanding,

following instructions, and using his hands.

Tr. 19 (citing Tr. 220). However, the ALJ observed:

During the hearing, the claimant stated that lives with his wife and two young

daughters, makes them breakfast and snacks, helps his children with homework,

cleans the kitchen and washes dishes, helps his wife with laundry, and goes to

church once a week. He also testified that he is able to drive, but seldom does it

and only for short distances. He stated he will drive down to the end of his

driveway to pick up his daughters after school.

Tr. 19; see Tr. 37-38, 42-43.

But the ALJ failed to identify what specific testimony was inconsistent with plaintiff’s

activities of daily living or explain how plaintiff’s activities of daily living were transferrable to a

work setting. See Orn, 495 F.3d at 639. For instance, the ALJ provided no explanation why

plaintiff’s ability take care for his children, manage his personal care, and do household chores

were either inconsistent with his subjective symptom testimony or translated to activities that

could be performed within a competitive work environment. See Fair, 885 F.2d at 603 (“The

Social Security Act does not require that claimants be utterly incapacitated to be eligible for

benefits,” and “many home activities are not easily transferable to what may be the more

grueling environment of the workplace, where it might be impossible to periodically rest or take

medication.”). Plaintiff’s attempts at leading a normal life do not prevent him from receiving

disability benefits. Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012) (holding a

“claimant need not vegetate in a dark room to be eligible for benefits”) (citation omitted).

Also, the ALJ did not address plaintiff’s testimony as to his limitations in doing these

activities. For example, plaintiff testified that after he makes breakfast for his family and his

wife and daughters leave for work and school in the morning, he is “wiped out” and rests until it

is time to pick his daughters up from school. Tr. 42. His wife “has to do the bulk” of the

cooking, grocery shopping, and laundry. Tr. 45. In the Function Report cited by the ALJ,

plaintiff stated that he “sometimes” takes care of his daughters; he “get[s] dizzy in [the] shower

when [he] close[s] his eyes”; “his wife does the cooking” and that “[he] used to love to cook” but

now “can’t stand for long periods of time”; “[he] can’t drive long distance[s]”; he shops only

once every two weeks; and he “tr[ies] to go to church on Sundays.” Tr. 216-19.

In sum, substantial evidence does not support the ALJ’s finding, and, accordingly, the

ALJ erred in relying on plaintiff’s activities of daily living as a basis for discounting his

testimony.

C. Effective Treatment and Treatment Noncompliance

The ALJ also discounted plaintiff’s testimony on grounds that his impairments have been

alleviated by effective medical treatment and plaintiff’s noncompliance with treatment. See Tr.

20.

An ALJ may discount a claimant’s testimony based on effective treatment. See

Youngblood v. Berryhill, 734 F. App’x 496, 499 (9th Cir. 2018) (evidence of effective treatment

provides a valid basis to discount claimant’s subjective symptom testimony); Bettis v. Colvin,

649 F. App’x 390, 391 (9th Cir. 2016) (holding that the ALJ met the clear and convincing

reasons standard, and stating that the ALJ appropriately discounted the claimant’s testimony on

the ground that his “condition improved with treatment,” because “‘[i]mpairments that can be

controlled effectively with [treatment] are not disabling’”) (citation omitted); Tommasetti, 533

F.3d at 1040 (ALJ properly rejected claimant’s subjective complaints where medical records

showed that she responded favorably to physical therapy and medication). An ALJ may also rely

on a claimant’s non-compliance with treatment to discount testimony regarding the intensity or

persistence of symptoms. Tommasetti, 533 F.3d at 1039; see also SSR 16-3p, available at 2017

WL 5180304, at *9 (“[I]f the individual fails to follow prescribed treatment that might improve

symptoms, [the ALJ] may find the alleged intensity and persistence of an individual’s symptoms

are inconsistent with the overall evidence of record.”).

Plaintiff contends that the Commissioner’s effective treatment and treatment

noncompliance arguments are impermissible post hoc rationalizations and that, in any event, the

ALJ failed to support these findings with substantial evidence. Reply 7 (citing Bray v. Comm.

Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009)). Although the ALJ’s analysis of

plaintiff’s effective treatment and treatment noncompliance is not a model of clarity, the court

can nevertheless discern her path. See Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090,

1099 (9th Cir. 2014) (stating that ALJs do not err if their paths “may reasonably be discerned,

even if [they] explain[] [their] decision[s] with less than ideal clarity”). Thus, the court proceeds

to the merits.

1. Effective Treatment

Regarding effective treatment, the ALJ noted: “the claimant underwent a five-day

SoluMedrol infusion cycle in late April of 2017 and corresponding notes show that the claimant

tolerated the treatment well, reported no new or worsening conditions, and stated that his vision

improved slightly”; “[t]he claimant was seen by providers at Oregon Interventional Pain

Consultants from the fall of 2017 through the spring of 2018, and these records show that he

responded well to treatment and consistently reported improvement in his overall functionality”;

and “Shea DeKlotz, PA-C, saw the claimant in April of 2018 [, and ] . . . the claimant . . . state[d]

that his pain management treatment had improved his functioning in multiple areas, reporting an

increase in his general activity level, walking ability, normal work (which includes both work

outside the home and housework), sexual activity, and sleep.” Tr. 20 (citing Tr. 501-05, 528,

541-42, 526-27).

However, the ALJ made no mention that plaintiff’s pain management required daily

narcotics, i.e., Norco 10-325 mg (hydrocodone-acetaminophen) that he had been taking since

2015. The ALJ also said nothing of PA Farro’s chart note from September 12, 2018, that

plaintiff had “failed Avonex, and apparently required more aggressive treatment.” Tr. 541. PA

Farro noted that, “[d]ue to [plaintiff’s] relapses, he was recommended more aggressive treatment

with infusion therapy.” Id. Plaintiff had finished his loading dose of Ocrevus on June 7, 2018,

and was due for another dose on December 7, 2018. Id. Medication helped his spasticity, but

not his daytime fatigue. Id. Even though plaintiff had an MRI in 2017, PA Farro ordered

another MRI in November 2018 due to plaintiff’s “worsening fatigue and some potential left

hand astereognosis.” Id. The results of this MRI showed “a mixed pattern of progression and

remission when compared to the previous examination.” Tr. 536. One lesion in the left frontal

lobe had improved, but “[l]esions within the medial left frontal lobe white matter and right

periatrial white matter have increased[.]” Id.

Thus, the ALJ impermissibly discounted plaintiff’s testimony based on effective

treatment. See Lopez v. Colvin, 194 F. Supp. 3d 903, 911 (D. Ariz. 2016) (“[T]he ALJ must

show that the treatment was capable of providing lasting relief.”).

2. Treatment Noncompliance

Regarding treatment noncompliance, the ALJ observed: “[t]he claimant stated that his

recent increase in pain was due to . . . not taking his medication”; “[FNP Gaedeke] indicated that

the claimant was not taking his medications as prescribed and that could explain his increased

fatigue”; and despite PA Farro’s “recommendation for physical therapy, the claimant had not

followed through yet.” Tr. 20-21 (citing Tr. 521, 527, 542).

However, the record shows that plaintiff cut down on his pain medication in order to

make the medication last until a delayed doctor’s appointment, and the medications he stopped

taking included Adderall and duloxetine, neither of which were prescribed for energy. Tr. 518

(“Adderall . . . was prescribed for focus attention not energy.”); Tr. 539 (“He has had increased

depression. [H]owever[,] [h]e felt that when he was taking his duloxetine 40 mg regularly this

was helpful.”); Tr. 527 (“He had to cut back on his medication recently because he was not able

to come in and so had to have make his medications last.”). Therefore, of the ALJ’s three

citations to the record, only one of them arguably supports a characterization that plaintiff was

noncompliant with treatment. See Harvey v. Colvin, No. CV 13-5376-PLA, 2014 WL 3845088,

at *10 (C.D. Cal. Aug. 5, 2014) (finding that “one instance of noncompliance does not display a

pattern or the type of apathy that would suggest that plaintiff’s symptoms are not as serious as

alleged”) (citation and internal quotation marks omitted). Because the ALJ’s finding that

plaintiff was noncompliant with treatment is not supported by substantial evidence, the ALJ

improperly discounted plaintiff’s testimony on that basis.

D. Inconsistent and Intermittent Treatment

An ALJ may discount a claimant’s testimony upon an “unexplained or inadequately

explained failure to seek treatment.” Tommasetti, 533 F.3d at 1039.

Here, the ALJ discounted plaintiff’s testimony because “[t]he remainder of the claimant’s

medical record shows inconsistent and intermittent treatment that suggests at best only slightly

limiting physical restrictions at any given time and fails to support the allegation of a period of

significant limitation that exceeds the residual functional capacity.” Tr. 21. However, the ALJ

provided no evidentiary support for this reason. See 42 U.S.C. § 405(g). Therefore, the ALJ

improperly discounted plaintiff’s symptom testimony based on inconsistent and intermittent

treatment.

In sum, the only valid reason for discounting plaintiff’s subjective symptom testimony is

that it is unsupported by the objective medical evidence. But that reason, standing alone, is

insufficient. See C.F.R. § 404.1529(c)(2).

II. Medical Evidence

Plaintiff filed his application for benefits on June 6, 2017. Tr. 13. For claims filed on or

after March 27, 2017, Federal Regulation 20 C.F.R. § 404.1520c governs how an ALJ must

evaluate medical opinion evidence under Title II.2 Revisions to Rules Regarding the Evaluation

of Medical Evidence (“Revisions to Rules”), 82 Fed. Reg. 5844-01, available at 2017 WL

168819 (Jan. 18, 2017). In the new regulations, the Commissioner rescinded SSR 06-03p and

broadened the definition of acceptable medical sources to include “Advanced Practice Registered

2 Under Title XIV, 20 C.F.R. § 416.920c applies.

Nurses” (such as nurse practitioners), audiologists, and physician assistants. See 20 C.F.R.

§ 404.1502. The Commissioner also clarified that all medical sources, not just acceptable

medical sources, can provide evidence that will be considered medical opinions. See Revisions

to Rules, 82 Fed. Reg. 5844, at 5853-54 (“[W]e will require our adjudicators to articulate how

they consider medical opinions from all medical sources, regardless of AMS status, to reflect the

changing nature of healthcare delivery.”).

Under these new regulations, ALJs no longer “weigh” medical opinions, but rather “will

articulate in our determination or decision how persuasive we find all of the medical opinions

and all of the prior administrative medical findings in your case record.” 20 C.F.R.

§ 404.1520c(b). Controlling weight is no longer given to any medical opinion. Revisions to

Rules, 82 Fed. Reg. 5844, at 5867-68 (“We will not defer or give any specific evidentiary

weight, including controlling weight, to any medical opinion(s) or prior administrative medical

finding(s), including those from your medical sources.”); see also 20 C.F.R. § 404.1520c(a)

(same).

The Commissioner considers the following factors in evaluating medical opinions: (1)

supportability; (2) consistency; (3) relationship with the claimant (including length of treatment

relationship, frequency of examinations, purpose of treatment relationship, and examining

relationship); (4) specialization; and (5) other factors, including but not limited to “evidence

showing a medical source has familiarity with the other evidence in the claim or an

understanding of our disability program’s policies and evidentiary requirements.” 20 C.F.R.

§ 404.1520c(a), (c)(1)-(5).

“Supportability” and “consistency” are “the most important factors” in evaluating the

persuasiveness of medical opinions. 20 C.F.R. § 404.1520c(a). With respect to supportability,

the new regulations state, “The more relevant the objective medical evidence and supporting

explanations presented by a medical source are to support his or her medical opinion(s) or prior

administrative medical finding(s), the more persuasive the medical opinions or prior

administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(c)(1). With respect to

consistency, the new regulations state, “The more consistent a medical opinion(s) or prior

administrative medical finding(s) is with the evidence from other medical sources and

nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior

administrative medical finding(s) will be.” 20 C.F.R. § 404.1520c(2). The new regulations

require ALJs to “articulate . . . how persuasive [they] find all of the medical opinions” and

“explain how [they] considered the supportability and consistency factors.” 20 C.F.R. §§

404.1520c(b), 416.920c(b).

ALJs “may, but are not required to, explain how [they] considered” the remaining factors

in paragraphs (c)(3) through (c)(5). 20 C.F.R. § 404.1520c(b)(2). However, when ALJs find

“two or more medical opinions or prior administrative medical findings about the same issue are

both equally well-supported (paragraph (c)(1) of this section) and consistent with the record

(paragraph (c)(2) of this section) but are not exactly the same, [they] will articulate how [they]

considered the other most persuasive factors in paragraphs (c)(3) through (c)(5) of this section

for those medical opinions or prior administrative medical findings in [the claimant’s]

determination or decision.” 20 C.F.R. § 404.1520c(b)(3).

The court must continue to consider whether the ALJ’s analysis is supported by

substantial evidence. See 42 U.S.C. § 405(g) (“[T]he findings of the Commissioner of Social

Security as to any fact, if supported by substantial evidence, shall be conclusive[.]”); Hammock

v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989) (“We affirm a denial of benefits when the

Secretary’s decision is supported by substantial evidence and is free from legal error.”).

A. Kyle Smoot, M.D.

Plaintiff saw Dr. Smoot, a Portland neurologist, until plaintiff moved to Eugene in 2018.

Tr. 38, 527. Dr. Smoot submitted four documents to the file: a medical source statement and

three letters. Tr. 497-99, 509-11. In his October 4, 2017 medical source statement, Dr. Smoot

stated that plaintiff has MS, which is a “chronic & progressive disease with no cure”; he had

“multiple relapses in the last year”; and he is “working to establish disease modifying therapy to

slow progression of a disability.” Tr. 509. Dr. Smoot indicated that plaintiff’s MS caused

symptoms of fatigue, balance problems, vertigo, numbness/tingling, unstable walking, spasticity,

bladder/bowel problems, heat sensitivity, depression, double or blurred vision, involuntary eye

movement, and pain. Tr. 509. Dr. Smoot opined that plaintiff “h[as] significant and persistent

disorganization of motor function in two extremities resulting in sustained disturbance of gross

and dexterous movement of gait or station”; his “[g]ait is wide based & spastic; [he is] unable to

tandem walk”; and he has “[g]eneralized weakness.” Tr. 509.

Dr. Smoot observed that plaintiff would frequently be off-task; does not have the stamina

or endurance to work at a job for eight hours per day, five days per week; can stand/walk less

than two hours and sit about two hours while needing to change position at will; can lift ten

pounds occasionally and less than ten pounds frequently; can never climb ladders; can rarely

climb stairs, twist, stoop, or crouch; can occasionally reach, handle, finger, and feel; would take

extra breaks more than once per hour lasting at least five to ten minutes; and would miss more

than two days of work a month. Tr. 510-11. Dr. Smoot’s June 1, 2017 letter states that

“[plaintiff’s] disability is such that he is unable to work.” Tr. 499. Dr. Smoot’s June 22, 2017

and August 20, 2017 letters request that plaintiff receive the medication Ocrevus, even though it

was denied by his insurance company, because he was in need of such “robust therapy.” Tr. 497,

498.

The ALJ found Dr. Smoot’s opinion unpersuasive because:

[W]hile the medical evidence in the file does offer some indication of deficits that

have been included in the residual functional capacity, the overall record,

including Dr. Smoot’s own examination notes and statements made by the

claimant, does not support the disabling limitations he lists here.

Tr. 22 (citing Tr. 430, 432-33, 435, 490-91, 493, 501-05, 517, 520-21, 523, 526-29, 531-32, 534-

35, 536-37, 539-42, 545, 547-48). The ALJ thereby addressed the supportability factor. 20

C.F.R. § 404.1520c(b)(2).

Plaintiff argues that the ALJ “simply set forth a string of exhibits numbers” and

“provided no explanation as to what information was contained within those exhibits that

allegedly rendered Dr. Smoot’s opinion unsupported.” Reply 3. Plaintiff observes that “the ALJ

used the same string citation throughout the record, regardless of which opinion she was

addressing,” and argues that “by citing a list of exhibit numbers and providing no explanation,

the ALJ’s reasoning amounts to a conclusion and that is insufficient under the regulations which

require an explanation.” Id.

However, if one carefully examines the portions of the record that the ALJ cited, it is

possible to pinpoint the evidence that the ALJ says “does not support the disabling limitations”

that Dr. Smoot found, including “Dr. Smoot’s own examination notes and statements made by

the claimant,” e.g.:

• Dr. Smoot’s August 29, 2017 progress notes state, “[s]ince June, [plaintiff] has been

doing well. No new symptoms to report. Continues to have occasional dizziness and

blurred vision, although this has actually improved.” Tr. 490.

• In treatment records from April 14, 2017, plaintiff “[d]enies new or worsening concerns.”

Tr. 502.

• A November 3, 2017 progress note by Dr. Jennifer Scott indicates that plaintiff’s MS had

“stabilized,” Tr. 523, and plaintiff “appears to be well stabilized on the current

medication regimen, no changes are required.” Tr. 535.

While the ALJ’s explanation could have been more clearly stated, the court is able to reasonably

discern the ALJ’s path for the purpose of review. See Brown-Hunter v. Colvin, 806 F.3d 487,

493-94 (9th Cir. 2015); Jose v. Berryhill, 2018 WL 1244763 at *6 (D. Or. Mar. 12,

2018) (“[E]ven if the ALJ could have stated each reason more clearly, the Court is still able

to ‘reasonably discern’ the ALJ’s path.”).

The ALJ also found that Dr. Smoot’s opinion was unpersuasive because it was

“inconsistent” with state agency consultative physicians,

Drs. Kehrli and Basham, who both assess the claimant with less restrictive

exertional and postural . . . limitations that are better supported by the

examination and treatment notes in the medical record.

Tr. 22 (citing Tr. 74-75, 90-91).

On August 8, 2017, Dr. Basham outlined the medical evidence she considered and

plaintiff’s subjective complaints. Tr. 64-71. She considered Dr. Smoot’s opinion, explained

why she disagreed with it, explained why she rejected plaintiff’s symptom complaints, and

provided her opinion about plaintiff’s RFC. Tr. 73, 76. Dr. Basham found plaintiff can lift and

carry twenty pounds occasionally and ten pounds frequently; can stand and walk two hours and

sit about six hours in an eight-hour workday; can occasionally climb ramps and stairs; can never

climb ladders, ropes, or scaffolds; can never balance; can occasionally stoop, kneel, crouch, and

crawl; and should avoid all exposure to hazards. Tr. 73-77.

On November 14, 2017, on reconsideration, Dr. Kehrli similarly reviewed plaintiff’s file

and found the same limitations. Tr. 79-94. While the ALJ found the opinions of Dr. Basham

and Kehrli persuasive, the ALJ “adopted a slightly more restrictive version of their [RFC]

because recent examination and treatment notes, as well as statements made by the claimant,

support additional limitations related to manipulation and changing between sitting and standing

positions.” Tr. 23.

Plaintiff argues that Dr. Basham and Dr. Kehrli did not have access to a year’s worth of

neurology records, including his MRI results from November 2018, which showed ongoing

disease with a “mixed pattern of progression and remission.” Pl. Br. 5 (citing Tr. 86, 90-91, 517-

21, 536, 539-50). Thus, plaintiff contends, the opinions of Dr. Basham and Dr. Kehrli were not

in fact “better supported” by the medical record, as the ALJ found. Reply 3-4.

The Commissioner responds that, while Drs. Basham and Kehrli “did not have the

opportunity to review all of the records in this case, the ALJ had the opportunity to review the

entire record” and acted in accordance with her responsibility to determine the persuasiveness of

the medical evidence. Def. Br. 19-20. But the ALJ is not a medical expert. Nevertheless, the

opinions of Dr. Basham and Dr. Kehrli were made in 2017, close in time to Dr. Smoot’s

opinions, which were rendered in 2017. They are consistent with each other and inconsistent

with Dr. Smoot’s opinions, as the ALJ explained. Thus, the ALJ adequately explained why the

state agency consultants’ opinions are more persuasive, and the decision is supported by

substantial evidence.

B. Brittany Farro, PA-C

Plaintiff began seeing PA Farro in the Eugene/Springfield area in July 2018. Tr. 550.

PA Farro stated in a January 9, 2019 letter:

[Plaintiff] . . . is followed for clinic for his Multiple Sclerosis. He had an

exacerbation with 8+ new lesions in 2017 on top of already significant, diffuse

spinal disease. This has left him with ongoing sensory, motor, gait, and

neuropsychiatric deficits that make him permanently disabled. He is unable to

maintain employment due to his medical condition.

Tr. 551.

The ALJ found PA Farro’s opinion unpersuasive and rejected it in part because:

A review of the examination, treatment, and radiological notes in the file, as well

as statements made by the claimant regarding his activities of daily living,

supports the finding that despite having some level of restriction due to his

multiple sclerosis, the claimant does not have impairments that cause limitations

in excess of those in the residual functional capacity.

Tr. 22 (citing Tr. 430, 432-33, 435, 490-91, 493, 501-05, 517, 520-21, 523, 526-29, 531-32, 534-

35, 536-37, 539-42, 545, 547-48). The ALJ used the same string of citations that she used to

support her finding that Dr. Smoot’s opinion was unpersuasive. Some of these citations pertain

to PA Farro’s records from July through November 2018 (Tr. 536-37 (MRI report), 539-42, 545,

547-48). The other citations are to records that date from April 2017 (Tr. 430, 432-33, 435),

August 2017 (Tr. 490-91, 493, 501-05), November 2017 (Tr. 523), December 2017 (Tr. 531-32),

February 2018 (Tr. 517, 520-21), and August 2018 (Tr. 526-29). It is impossible to determine

from the ALJ’s broad string cite which specific “examination, treatment, and radiological notes”

and activities of daily living the ALJ relied upon in rejecting PA Farro’s opinion. It is also

unclear how records from early 2017 undermine PA Farro’s opinion from the latter half of 2018

and into 2019, particularly given that, in November 2018, results of a new MRI showed

“progression” of plaintiff’s MS and he was undergoing more “aggressive” treatment “due to his

relapses” and “failed Avonex” treatment. Tr. 536, 539, 541.

The ALJ further discounted PA Farro’s opinion because it was inconsistent with

the opinions of the state agency physicians:

Other opinions in the file, such as those of Drs. Kehrli and Basham, are

inconsistent with the statement of Ms. Farro, as they indicate the claimant can

perform work at the light exertional level with additional postural, manipulative,

and environmental limitations.

Tr. 22 (citing Tr. 74-75, 90-91).

But as discussed above, the state agency consultants did not consider any evidence past

November 2017. While their opinions can be used to discredit Dr. Smoot’s opinions, which

were also from 2017, the state agency consultants did not have the opportunity to consider PA

Farro’s medical examinations, her opinion, and the results of plaintiff’s November 2018 MRI.

Again, the Commissioner argues that “the ALJ had the opportunity to review the entire

record.” Def. Br. 19. But, again, the ALJ is not a medical expert. Without relevant medical

opinion, the ALJ was not permitted to conclude that PA Farro’s opinion from January 2019 was

unsupported and inconsistent. See Mary Ann C. v. Comm’r Soc. Sec. Admin., No. 3:20-CV-

00296-CL, 2021 WL 1612297, at *5 (D. Or. Apr. 26, 2021) (concluding the ALJ erred in

determining that a medical opinion was not consistent with that of the state agency consultants

where the state agency consultants “were not privy to the reports of worsening visual acuity in

2019, nor the recommendation that Plaintiff undergo cataract surgery “when patient is ready”);

see also Fox v. Comm'r of Soc. Sec., No. 119CV00146LJOSAB, 2019 WL 6724355, at *15 (E.D.

Cal. Dec. 11, 2019), report and recommendation adopted, No. 119CV00146LJOSAB, 2020 WL

469363 (E.D. Cal. Jan. 29, 2020) (“[T]here is no medical opinion opining on how the most

recent medical imaging would impact Plaintiff’s ultimate RFC. Absent adequate explanation of

the record, without specific support from a medical source, and with no testimony from a

medical expert, the ALJ appears to have defined her own limitations for Plaintiff. The Court

finds that this was error.”); McHenry v. Berryhill, 911 F.3d 866, 871-872 (7th Cir. 2018) (“an

ALJ may not conclude, without medical input, that a claimant’s most recent MRI results are

‘consistent’ with the ALJ’s conclusions about her impairments”); Mitsoff v. Comm’r of Soc. Sec.,

940 F. Supp. 2d 693, 702 (S.D. Ohio 2013) (finding that state agency physician’s review of the

record, which did not include recent reports, did “not take into consideration a significant portion

of the record, and therefore the ALJ’s decision to adopt such an RFC is unsupported by

substantial evidence). “Clearly, remand is necessary so the ALJ may subject Plaintiff's most

recent MRI . . . to medical expert scrutiny.” Konda D. v. Saul, 421 F. Supp. 3d 599, 615 (N.D.

Ind. 2019).

Plaintiff asserts other grounds for remand, but it is unnecessary to reach those arguments,

as the matter is remanded for the reasons discussed above.

III. Remand

When a court determines the Commissioner committed harmful error in making a

decision to deny benefits, the court may affirm, modify, or reverse the Commissioner’s decision

“with or without remanding the cause for a rehearing.” Treichler v. Comm’r Soc. Sec. Admin.,

775 F.3d 1090, 1099 (9th Cir. 2014) (quoting 42 U.S.C. § 405(g)). In determining whether to

remand for further proceedings or immediate payment of benefits, the Ninth Circuit employs the

“credit-as-true” standard when the following requisites are met: (1) the ALJ has failed to provide

legally sufficient reasons for rejecting evidence, (2) the record has been fully developed and

further proceedings would serve no useful purpose, and (3) if the improperly discredited

evidence were credited as true, the ALJ would be required to find the plaintiff disabled on

remand. Garrison, 759 F.3d at 1020. Even if all of the requisites are met, however, the court

may still remand for further proceedings, “when the record as a whole creates serious doubt as to

whether the claimant is, in fact, disabled[.]” Id. at 1021.

Here, the first requisite of the Garrison test is met. As discussed above, the ALJ failed to

properly evaluate plaintiff’s subjective symptom testimony and PA Farro’s opinion. However,

the second requisite is not met, as the record is not fully developed and further proceedings are

necessary. This court does not have to reach the third step of the credit-as-true inquiry.

ORDER

For the reasons discussed above, the Commissioner’s decision is REVERSED and

REMANDED for further proceedings consistent with this opinion.

DATED June 3, 2021.

/s/ Youlee Yim You

Youlee Yim You

United States Magistrate Judge