Dillard v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JOIE D.,1 No. 3:19-cv-00218-HZ

Plaintiff, OPINION & ORDER

v.

COMMISSIONER, SOCIAL

SECURITY ADMINISTRATION,

Defendant.

Karen Stolzberg

P.O. Box 19699

Portland, OR 97280

Attorney for Plaintiff

Renata Gowie

Assistant United States Attorney

District of Oregon

1000 SW Third Avenue, Suite 600

Portland, OR 97204

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

of the non-governmental party or parties in this case. Where applicable, this Opinion uses the

same designation for a non-governmental party’s immediate family member.

Leisa A. Wolf

Social Security Administration

Office of the General Counsel

701 Fifth Avenue, Suite 2900 M/S 221A

Seattle, WA 98104

Attorneys for Defendant

HERNÁNDEZ, District Judge:

Plaintiff Joie D. brings this action seeking judicial review of the Commissioner’s final

decision to deny disability insurance benefits (“DIB”) and supplemental security income (“SSI”).

This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). The Court reverses the

Commissioner’s decision and remands this case for further administrative proceedings.

PROCEDURAL BACKGROUND

Plaintiff applied for DIB and SSI on August 5, 2015, alleging an onset date of September

15, 2012. Tr. 13.2 Plaintiff later amended her alleged onset date to September 15, 2013. Tr. 14.

Her application was denied initially and on reconsideration. Tr. 13.

On September 13, 2017, Plaintiff appeared with counsel for a hearing before an

Administrative Law Judge (“ALJ”). Tr. 13, 36. On January 30, 2018, the ALJ found Plaintiff not

disabled. Tr. 27–28. The Appeals Council denied review. Tr. 1.

FACTUAL BACKGROUND

Plaintiff alleges disability based on degenerative disc disease, back problems, arthritis,

Type 2 diabetes, congestive heart failure, carpal tunnel syndrome, fibromyalgia, hand issues,

cholesterol issues, depression, and acid reflux. Tr. 503. At the time of her alleged onset date,

2 Citations to “Tr.” refer to the page(s) indicated in the official transcript of the administrative

record, filed herein as Docket No. 10.

Plaintiff was forty-five years old. Tr. 211. She has a high school education and past relevant

work experience as a caregiver and a wafer machine operator. Tr. 26, 44, 504.

SEQUENTIAL DISABILITY EVALUATION

A claimant is disabled if they are unable to “engage in any substantial gainful activity by

reason of any medically determinable physical or mental impairment 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), 1382c(a)(3)(A). Disability claims are evaluated according to a five-step

procedure. See Valentine v. Comm’r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases,

agency uses five-step procedure to determine disability). The claimant bears the ultimate burden

of proving disability. Id.

In the first step, the Commissioner determines whether a claimant is engaged in

“substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137,

140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines

whether the claimant has a “medically severe impairment or combination of impairments.”

Yuckert, 482 U.S. at 140–41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not

disabled. Id.

In step three, the Commissioner determines whether the claimant’s impairments, singly

or in combination, meet or equal “one of a number of listed impairments that the [Commissioner]

acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141;

20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if

not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

In step four, the Commissioner determines whether the claimant, despite any

impairment(s), has the residual functional capacity (RFC) to perform their “past relevant work.”

20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can perform past relevant work, the

claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to

the Commissioner. In step five, the Commissioner must establish that the claimant can perform

other work. Yuckert, 482 U.S. at 141–42; 20 C.F.R. §§ 404.1520(e)–(f), 416.920(e)–(f). If the

Commissioner meets their burden and proves that the claimant can perform other work that

exists in the national economy, then the claimant is not disabled. 20 C.F.R. §§ 404.1566,

416.966.

THE ALJ’S DECISION

At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful

activity after her amended alleged onset date. Tr. 16. Next, at steps two and three, the ALJ

determined that Plaintiff has the following severe impairments: “obesity, spine disorder, left

shoulder disorder, depression, and anxiety.” Tr. 16. However, the ALJ determined that Plaintiff’s

impairments did not meet or medically equal the severity of a listed impairment. Tr. 18. At step

four, the ALJ concluded that Plaintiff has the residual functional capacity to perform light work

as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) with the following limitations:

[S]he can never climb ladders, ropes scaffolds, or crawl; occasionally climb ramps

or stairs, stoop, kneel, and crouch. She can do no overhead reaching with her non-

dominant left upper extremity; she can frequently reach in front and laterally with

her left upper extremity. She can have no exposure to hazards such as moving

mechanical parts[] and unprotected heights. She is limited to jobs with a reasoning

level 2 or less. She is limited to performing simple and routine tasks, making simple

work decision[s]; having occasional public contact; and having frequent co-worker

and supervisory contact.

Tr. 21. Because of these limitations, the ALJ concluded that Plaintiff could not perform her past

relevant work. Tr. 26. But at step five, the ALJ found that jobs exist in significant numbers in the

national economy that Plaintiff can perform, such as electronics worker, office helper, and price

marker. Tr. 28. Thus, the ALJ concluded that Plaintiff is not disabled. Id.

STANDARD OF REVIEW

A court may set aside the Commissioner’s denial of benefits only when the

Commissioner’s findings “are based on legal error or are not supported by substantial evidence

in the record as a whole.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal

quotation marks omitted). “Substantial evidence means 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.” Id. (internal quotation marks omitted). The court considers the record as a

whole, including both the evidence that supports and detracts from the Commissioner’s decision.

Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). “Where the evidence is

susceptible to more than one rational interpretation, the ALJ’s decision must be affirmed.”

Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also Massachi v.

Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (“Where the evidence as a whole can support either

a grant or a denial, [the court] may not substitute [its] judgment for the ALJ’s”) (internal

quotation marks omitted).

DISCUSSION

Plaintiff argues that the ALJ erred at steps two and four of the sequential analysis by

failing to include all Plaintiff’s severe impairments and improperly discounting the medical

opinion testimony, Plaintiff’s subjective symptom testimony, and the lay witness testimony. The

Court addresses each argument in turn.

I. Subjective Symptom Testimony

Plaintiff argues that the ALJ erred by failing to provide clear and convincing reasons to

reject Plaintiff’s subjective symptom testimony.

The ALJ is responsible for evaluating symptom testimony. SSR 16-3p, 2017 WL

5180304, at *1 (Oct. 25, 2017). Once a claimant shows an underlying impairment and a causal

relationship between the impairment and some level of symptoms, clear and convincing reasons

are needed to reject a claimant’s testimony if there is no evidence of malingering. Carmickle v.

Comm’r, 533 F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative evidence that the plaintiff is

malingering, “where the record includes objective medical evidence establishing that the

claimant suffers from an impairment that could reasonably produce the symptoms of which he

complains, an adverse credibility finding must be based on clear and convincing reasons”)

(quotation marks and citation omitted); see also Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir.

2012) (the ALJ engages in a two-step analysis for subjective symptom evaluation: First, the ALJ

determines whether there is “objective medical evidence of an underlying impairment which

could reasonably be expected to produce the pain or other symptoms alleged”; and second, “if

the claimant has presented such evidence, and there is no evidence of malingering, then the ALJ

must give specific, clear and convincing reasons in order to reject the claimant’s testimony about

the severity of the symptoms.”) (quotation marks and citations omitted).

When evaluating subjective symptom testimony, “[g]eneral findings are insufficient.”

Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (quoting Lester v. Chater, 81 F.3d 821, 834

(9th Cir. 1995)). “An ALJ does not provide specific, clear, and convincing reasons for rejecting a

claimant’s testimony by simply reciting the medical evidence in support of his or her residual

functional capacity determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015).

Instead, “the ALJ must specifically identify the testimony she or he finds not to be credible and

must explain what evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195

(9th Cir. 2001); see also Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (The reasons

proffered must be “sufficiently specific to permit the reviewing court to conclude that the ALJ

did not arbitrarily discount the claimant’s testimony.”).

The ALJ rejected Plaintiff’s subjective symptom testimony because the alleged severity

of Plaintiff’s symptoms and limiting effects of her impairments was inconsistent with objective

medical evidence, inconsistent with her activities of daily living, and because Plaintiff’s

condition has not significantly deteriorated since she stopped working due to reasons other than

her alleged disability. Tr. 25–26.

In terms of her subjective symptoms, Plaintiff testified that she lays down two to three

times a day for about thirty minutes to relieve her back and hip pain. Tr. 60. She testified that she

could sit for only an hour or two before she needs to walk around or lay down to alleviate her

pain. Tr. 60–61. When her back “goes out,” which had occurred once or twice since she stopped

working in 2012, she cannot move and spends three or four days in bed. Tr. 61. She testified that

her left shoulder lacks mobility following her shoulder surgery. Tr. 63–64. She testified that her

diastolic heart failure causes shortness of breath after walking for fifteen to twenty minutes,

which requires a period of rest to recover. Tr. 65–66. Plaintiff testified that she experiences

dizziness two to three times daily for fifteen to twenty seconds. Tr. 66–67. Plaintiff also

described neuropathy due to diabetes that causes nerve pain in the top of her feet and numbness

of her toes without loss of balance. Tr. 67. She testified that due to her anxiety, she is terrified of

public transportation, gets panic attacks when she encounters too many people she does not

know, and spends most of her time in the basement isolating from others. Tr. 57–58, 68.

A. Activities of Daily Living

The ALJ found that Plaintiff’s activities of daily living were “not limited to the extent

one would expect, given the complaints of disabling symptoms and limitations.” Tr. 25.

However, the ALJ did not describe Plaintiff’s daily activities. Plaintiff testified that a typical day

for her involves getting up, taking a short fifteen- to twenty-minute walk, watching television,

making breakfast, washing her dishes, taking a shower, and alternating between sitting, standing,

and lying down for the remainder of the day. Tr. 49. She testified that sometimes she goes with

her roommates to the store and goes to doctor appointments. Id. She testified that she does her

own laundry, sometimes does some cleaning, and reads. Id. at 49–50. She also takes a second

fifteen- to twenty-minute walk in the evenings. Tr. 49, 54.

The ALJ did not explain how that level of activity was inconsistent with her testimony

that she experiences significant back pain, left shoulder pain, dizziness, shortness of breath, and

fatigue. As a result, Plaintiff’s level of daily activities was not a clear and convincing reason to

discount her subjective symptom testimony.

B. Reason Plaintiff Stopped Working

The ALJ rejected Plaintiff’s subjective symptom testimony in part because Plaintiff did

not quit working because of her disability, she had worked with her impairments for many years

before that, and Plaintiff’s conditions did not significantly deteriorate after she was laid off by

her former employer in 2012. Tr. 25–26. The ALJ concluded that since “the impairments did not

prevent the claimant from working earlier” the evidence “strongly suggests that they would not

prevent the claimant from continuing to work[.]” Tr. 26.

An ALJ may discount a claimant’s testimony if the claimant works for several years with

impairments and suffers no significant deterioration in their condition after their alleged onset

date. See Orozco v. Berryhill, No. 1:16-cv-01807-SB, 2017 WL 5629532, at *6 (D. Or. Nov. 22,

2017) (affirming ALJ’s discount of claimant’s testimony because the claimant had previously

engaged in substantial gainful activity while suffering from her impairments); Schoonmaker v.

Colvin, No. 6:14-cv-01962-HZ, 2015 WL 6658669, at *6 (D. Or. Oct. 30, 2015) (“[T]he ALJ’s

finding that he was able to work for many years with his impairments, which had not

significantly worsened after the alleged onset date, is supported by substantial evidence and is a

reasonable basis for discounting Plaintiff’s subjective symptom testimony.”). However, in this

case, the ALJ’s conclusion that Plaintiff suffered no deterioration in her condition after she

stopped working is not supported by substantial evidence in the record.

The ALJ did not point to any evidence in the record to support her conclusion that

Plaintiff’s condition did not deteriorate after her employer laid her off in 2012. The record

reflects that Plaintiff’s impairments deteriorated in several respects. First, Plaintiff was

hospitalized twice in April 2014. She was hospitalized from April 6, 2014, until April 12, 2014,

for diabetic ketoacidosis and an abscess that required surgical drainage and IV antibiotic therapy.

Tr. 628–46. One week later, Plaintiff was admitted to the hospital again for one day for acute

diastolic heart failure. Tr. 609–27. Dr. Chamie noted that Plaintiff’s heart failure may have been

related to her severe hyperglycemia and infection the week before. Tr. 1219. Plaintiff’s left

shoulder condition also worsened significantly after her alleged onset date. She developed

adhesive capsulitis in the shoulder, resumed narcotic pain medications to treat her shoulder pain,

and ultimately had left shoulder surgery in November 2016. Tr. 931, 1244–83.

Although it is true that Plaintiff worked with her impairments before her alleged onset

date, Plaintiff was not able to work without any difficulty. Plaintiff testified that she was having

trouble with work attendance due to pain in her back, hands, and shoulder long before she

stopped working. Tr. 46. She testified that she missed four or five days of work per month due to

her pain and that she had taken leave protected by the Family Medical Leave Act for at least ten

years before she stopped working. Tr. 51–52. Plaintiff testified that she had a particularly

difficult time with working three days in a row, especially if it involved standing for entire shifts.

Id. Plaintiff testified that she stopped taking pain medications after she quit working because she

could not afford them without insurance. Tr. 53. She also told Dr. Chamie after she stopped

working that she “[i]sn’t working so this helps control her pain as well.” Tr. 1217. Plaintiff also

testified that she started to have panic attacks at work and that her anxiety worsened after she

stopped working. Tr. 56.

There is no substantial evidence in the record to support the ALJ’s conclusion that

Plaintiff’s conditions did not deteriorate after she stopped working. As a result, the ALJ erred by

discounting Plaintiff’s subjective symptom testimony on that basis.

C. Objective Medical Evidence

The ALJ also discounted Plaintiff’s subjective symptom testimony because the ALJ

found it inconsistent with the objective medical evidence. Tr. 23. Throughout her decision, the

ALJ discussed Plaintiff’s subjective symptom testimony in all-or-nothing terms rather than

discussing the specific symptoms and what evidence undermines Plaintiff’s allegations

concerning the intensity, persistence, or limiting effects of those symptoms. Tr. 23 (“the

claimant’s 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. 25 (“the record contradicts the claimant’s testimony with regard to their nature and

extent . . . I have not rejected the claimant’s statements about the intensity and persistence of

symptoms solely because the available objective medical evidence does not substantiate the

statements”).

First, The ALJ erred by failing to identify which of Plaintiff’s alleged symptoms were

inconsistent with the record and what evidence undermined her testimony about the limiting

effects of those symptoms. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1988) (“General

findings are insufficient; rather, the ALJ must identify what testimony is not credible and what

evidence undermines the claimant’s complaints.”). Second, the medical evidence relied on by the

ALJ in her discussion of the RFC is not inconsistent with Plaintiff’s subjective symptom

testimony.

The medical evidence described by the ALJ in connection with the RFC includes a

lumbar MRI from 2011, a 2008 thoracic spine x-ray, a 2016 left shoulder MRI, and physical

therapy records. Tr. 22. The ALJ also summarized records relating to Plaintiff’s pre- and post-

operative left shoulder treatment between 2016 and 2017, Tr. 23, one of Plaintiff’s two April

2016 hospitalizations, id., and Dr. Chamie’s treatment records between March 2015 and

September 2016, id.

The ALJ summarized Plaintiff’s April 19, 2014 emergency room visit resulting in her

heart failure diagnosis as follows: “alert and oriented to person, place, time, and situation. She

was neurologically intact, cooperative with an appropriate mood and affect. She displayed

normal speech, normal coordination, and normal motor activity.” Tr. 23 (citing Tr. 616). The

records relating to that visit reflect that Plaintiff reported with difficulty breathing and swollen

legs for a day. An echocardiograph showed a left ventricular ejection fraction of sixty-five to

seventy percent, probable mild diastolic relaxation abnormality, mild left atrial enlargement with

probable mild mitral stenosis and mild mitral regurgitation, and trace tricuspid regurgitation. Tr.

621. Plaintiff underwent a CT angiogram that showed congestive heart failure, moderate-sized

bilateral pleural effusions, and mildly enlarged lymph nodes in the mediastinum. Tr. 623.

Plaintiff was admitted to the hospital and discharged the following day with a diagnosis of acute

diastolic heart failure. Tr. 609. The objective medical evidence thus demonstrates that Plaintiff

has diastolic and congestive heart failure that could reasonably be expected to cause some of

Plaintiff’s symptoms.

The ALJ then summarized the records of Dr. Chamie for treatment Plaintiff received

between March 2015 and September 2016. The ALJ’s summary highlights the positive aspects of

Dr. Chamie’s notes, including that Plaintiff felt better about walking with a cane, had been to the

store and did “fine,” that Plaintiff felt “happy, not depressed,” that her shoulder was getting

better with injections and physical therapy, that she had “much more mobility,” that Plaintiff had

a negative review of systems on one exam, reported no shortness of breath, and was well

groomed and euthymic. Tr. 23.

The records in which Dr. Chamie documented her treatment of Plaintiff show that Dr.

Chamie also noted complaints not described by the ALJ. Plaintiff continued to complain of

dizziness on an ongoing basis, even after Dr. Chamie made medication changes intended to

address that problem. See Tr. 1232, 1242, 1249, 1252. Plaintiff’s subjective symptom testimony

about her dizziness is thus supported by her contemporaneous reports over a seven-month period

to Dr. Chamie about those symptoms. Dr. Chamie attributed Plaintiff’s dizziness to her diabetes

medications. Tr. 1293. The ALJ’s decision does not discuss Plaintiff’s dizziness symptoms or

otherwise explain their impact on the RFC.

The same is true for Plaintiff’s testimony that she needs to lay down to alleviate her back

pain several times per day. The only evidence in the record cited by the ALJ in discounting

Plaintiff’s testimony concerning her back problems was the 2011 lumbar MRI and Dr. Chamie’s

treatment notes. The 2011 lumbar spine MRI, obtained more than two years before Plaintiff’s

alleged onset date, showed that Plaintiff had a history of lumbosacral neuritis and documented

the following abnormalities: mild facet degeneration at L2-3; facet degeneration, right foraminal

stenosis, and effacement of the ventral thecal sac at L3-4; a right hemilaminectomy defect, mild

left foraminal stenosis and moderate right foraminal stenosis at L4-5; a right hemilaminectomy

defect, distortion of the fat surrounding the S1 nerve root in the lateral recess, a small annulus

bulge, and moderately severe bilateral foraminal stenosis at L5-S1. This objective medical

evidence is not inconsistent with Plaintiff’s testimony that she frequently suffers from significant

back pain.

Dr. Chamie’s notes also support Plaintiff’s testimony that she suffers from significant

back pain. In 2012, before Plaintiff stopped working, she told Dr. Chamie that work was “really

hard on her back.” Tr. 1203. She took pain medications and muscle relaxants at that time to treat

her back pain. Id. After her alleged onset date, Plaintiff reported that although she still had pain,

she was able to tolerate it without narcotic pain medications and that not working had helped to

control her pain. Tr. 1217. In August 2014, Plaintiff reported that she had a back strain and

“[c]ould barely get out of bed for a week,” so Dr. Chamie prescribed a pain medication “to get

[her] back moving and walking.” Tr. 1222, 1224. When Plaintiff returned to see Dr. Chamie in

July 2015, she reported that her “pain is bad in her back and knees but she does not want to be on

pain medication for this.” Tr. 1227. Dr. Chamie ordered a cane to help Plaintiff with walking. Tr.

1229. Plaintiff reported later that month that she felt better walking with a cane. Tr. 1232.

In November 2015, Plaintiff’s pain complaints focused more on her left shoulder, and Dr.

Chamie resumed prescribing her narcotic pain medications. Tr. 1244. Dr. Chamie continued to

prescribe Plaintiff narcotic pain medications for her left shoulder pain until her surgery in

November 2016. Tr. 1244–83. Although Plaintiff’s back pain complaints are not documented in

the medical records during that time, her use of narcotic medications could explain why her back

pain complaints diminished. Nevertheless, the ALJ’s failure to provide a clear and convincing

reason to reject Plaintiff’s testimony that she must lay down for up to thirty-minute periods daily

to alleviate her back pain was legal error. Carmickle v. Comm’r, 533 F.3d 1155, 1160 (9th Cir.

2008) (the ALJ must provide clear and convincing reasons to reject a claimant’s testimony if

there is no evidence of malingering).

The ALJ noted that Plaintiff has “not generally received the type of medical treatment

one would expect for an individual experiencing the pain levels described by the claimant.” Tr.

25. However, Plaintiff has had two lumbar spine surgeries, a shoulder surgery, and two

hospitalizations for heart and diabetes emergencies. The bulk of Plaintiff’s subjective symptom

testimony pertains to her back, shoulder, heart, and diabetes impairments. That level of treatment

is not inconsistent with a disabling degree of symptoms. For those reasons, the ALJ erred by

rejecting Plaintiff’s subjective symptom testimony.

II. Medical Opinion Testimony

Plaintiff argues that the ALJ erred by failing to consider all the factors in 20 C.F.R. §

416.1527(b) when evaluating Dr. Chamie’s testimony. Social security law recognizes three types

of physicians: (1) treating, (2) examining, and (3) non-examining. Garrison v. Colvin, 759 F.3d

995, 1012 (9th Cir. 2014). Generally, more weight is given to the opinion of a treating physician

than to the opinion of those who do not treat the claimant. Id.; 20 C.F.R. §§ 404.1527(c)(1)–

(2), 416.927(c)(1)–(2). More weight is also given to an examining physician than to a non-

examining physician. Garrison, 759 F.3d at 1012. If a treating physician’s medical opinion is

supported by medically acceptable diagnostic techniques and is not inconsistent with other

substantial evidence in the record, then the treating physician’s opinion is given controlling

weight. Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014); Orn v. Astrue, 495 F.3d 625,

631 (9th Cir. 2007). If the treating physician’s opinion is not contradicted by another doctor, the

ALJ may reject it only for “clear and convincing” reasons supported by substantial evidence in

the record. Ghanim, 763 F.3d at 1160–61. Even if the treating physician’s opinion is contradicted

by another doctor, the ALJ may not reject the treating physician’s opinion without providing

“specific and legitimate reasons” which are supported by substantial evidence in the record. Id. at

1161; Bayliss, 427 F.3d at 1216.

On October 4, 2017, Dr. Chamie completed a questionnaire that described the symptoms

Plaintiff experiences as a result of her impairments. Tr. 1293–94. As a result of her carpal tunnel

syndrome and left shoulder adhesive capsulitis/tendinitis, Dr. Chamie noted that Plaintiff suffers

from mobility disturbance and pain. Tr. 1293. Plaintiff suffers from shortness of breath, fatigue,

and dyspnea on exertion as a result of her congestive heart failure and diastolic dysfunction. Id.

Plaintiff’s neuropathy in her heels and toes causes her pain and loss of sensation. Id. As a result

of Plaintiff’s two prior back surgeries, Plaintiff suffers from mobility disturbance, pain, uses a

cane, walks slowly, and cannot bend or lift. Id. Because of her anxiety and depression, Plaintiff

is unable to use the bus or be in large groups and limits her ability to interact with others. Id. Dr.

Chamie said that Plaintiff’s diabetes and medications cause her dizziness. Tr. 1294. Dr. Chamie

opined that Plaintiff could stand for one hour before needing to rest. Tr. 1293. She also opined

that Plaintiff needs to rest due to her impairments for five to six hours per day and that Plaintiff

was unable to reliably attend a job. Tr. 1294.

The ALJ assigned Dr. Chamie’s opinion little weight. Tr. 24. The ALJ found that Dr.

Chamie’s opinion was not consistent with the record as a whole and was inconsistent “with the

doctor’s progress notes” and with the “other evidence summarized above.” Id. The ALJ also

discounted Dr. Chamie’s opinion because Dr. Chamie did not explain her conclusions and the

ALJ found them “exaggerated compared to the treatment record, exams of record, and objective

testing.” Id. The ALJ also found that Dr. Chamie’s opinion that Plaintiff’s cane was medically

necessary was unsupported by the record. Id. Consequently, the ALJ disregarded “the bulk” of

Dr. Chamie’s opinion because “it is contradicted repeatedly in her own treatment notes . . . and

by other professionals who have reviewed the record.” Tr. 25.

The ALJ did not provide clear and convincing reasons for discounting Dr. Chamie’s

opinion. Dr. Chamie has treated Plaintiff since 2011. Tr. 683–88. Dr. Chamie treated Plaintiff’s

diabetes, congestive heart failure, back pain, shoulder pain, anxiety, and depression. Tr. 683–

710. Dr. Chamie prescribed Plaintiff’s medications and coordinated her care with other

providers. See, e.g., Tr. 709 (behavioral health referral and prescription of Lexapro for anxiety

and depression); 731 (noting awaiting appointment with orthopedist to treat shoulder pain); Tr.

1218–19 (discussing medication management and review of records from county clinic and

Adventist Hospital).

The ALJ failed to explain how Dr. Chamie’s opinion is inconsistent with Dr. Chamie’s

treatment records. Each of the conditions that Dr. Chamie noted in her opinion were conditions

that Dr. Chamie herself had observed, documented in her records, and treated. Dr. Chamie’s

opinion relates primarily to the symptoms of those conditions, which Dr. Chamie had a chance to

observe during the many visits that Dr. Chamie had with Plaintiff.

The ALJ also did not explain how Dr. Chamie’s opinion was inconsistent with the exams

of record and objective testing. The physical symptoms Dr. Chamie described stem from

conditions that are documented by an echocardiogram, laboratory testing, MRI testing, and

surgical findings. Thus, Plaintiff’s reported symptoms are not inconsistent with examinations and

objective testing. Finally, to the extent that Dr. Chamie’s opinion is contradicted by “other

professionals who have reviewed the record,” none of the medical professionals who reviewed

the record examined Plaintiff. Thus, those opinions cannot alone “constitute substantial evidence

that justifies the rejection of the opinion of an examining or treating physician.” Morgan v.

Comm’r, 169 F.3d 595, 602 (9th Cir. 1999).

The ALJ was required to consider the length of Plaintiff’s treatment relationship with Dr.

Chamie and the frequency of examination; the supportability of Dr. Chamie’s opinions; the

consistency of Dr. Chamie’s opinion with the record as a whole and other relevant factors. 20

C.F.R. § 404.1527(c). Although the ALJ claimed to have considered those factors, Tr. 24, she

did not discuss how they affected her analysis of the weight to be given to Dr. Chamie’s opinion.

As a result, the ALJ erred by giving little weight to Dr. Chamie’s opinion.

III. Lay Witness Testimony

Plaintiff argues that the ALJ erred by discounting the lay witness testimony of Denise

Sanders and Danielle Place. The ALJ may discount a lay witness opinion if she provides reasons

that are germane to each witness. Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016). The ALJ

gave little weight to the lay witness opinions because their descriptions of Plaintiff’s limitations

were “excessive in light of the rather benign medical findings and imaging studies.” Tr. 22. As

discussed above, neither of those reasons is supported by substantial evidence. It is unclear

which medical findings or imaging studies the ALJ referred to as “benign,” but the medical

findings and imaging studies concerning Plaintiff’s diabetes, heart failure, back, and shoulder

conditions are not benign. As a result, the ALJ erred by giving little weight to the opinions of

Ms. Place and Ms. Sanders.

IV. Severe Impairments

Plaintiff argues that the ALJ erred at step two by finding that her diastolic heart failure

and diabetes are not severe impairments. The step two inquiry is a de minimis screening device

used to dispose of groundless claims. Bowen, 482 U.S. at 153–54. The claimant bears the burden

of establishing that she has a severe impairment at step two by providing medical evidence. 20

C.F.R. §§ 404.1512, 416.912. “An impairment or combination of impairments is not severe if it

does not significantly limit [the claimant’s] physical or mental ability to do basic work

activities.” 20 C.F.R. §§ 404.1522(a), 416.922(a). “An impairment is not severe if it is merely a

‘slight abnormality (or combination of slight abnormalities) that has no more than a minimal

effect on the ability to do basic work activities.’” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir.

2005) (quoting Social Security Ruling (SSR) 96-3p, 1996 WL 374181, at *1 (July 2, 1996)).

At step two, the ALJ must consider the combined effect that all the claimant’s

impairments have on the claimant’s ability to perform basic work activities without regard to

whether each alone is sufficiently severe. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012

(9th Cir. 2003). “A determination that an impairment(s) is not severe requires a careful

evaluation of the medical findings which describe the impairment(s) and an informed judgment

about its (their) limiting effects on the individual’s physical and mental ability(ies) to perform

basic work activities[.]” SSR 85-28, 1985 WL 56856, at *4 (Jan. 1, 1985).

The ALJ found that only Plaintiff’s obesity, spine disorder, left shoulder disorder,

depression, and anxiety were severe impairments. Tr. 16. Plaintiff argues that the ALJ erred by

failing to include Plaintiff’s diastolic heart failure and diabetes as severe impairments because

the ALJ did not consider the limiting effects of those impairments when formulating the RFC. Pl.

Op. Br. 10, ECF 15. Defendant argues that any error in failing to identify Plaintiff’s diastolic

heart failure and diabetes as severe impairments was harmless because the ALJ included the

limiting effects of all Plaintiff’s impairments in the RFC. Def. Br. 10, ECF 18.

When the ALJ neglects to include a severe impairment at step two, the error is harmless

if the ALJ considers a claimant’s functional limitations at steps four and five, including those

caused by the omitted severe impairment. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).

Plaintiff alleges that the ALJ failed to include the following limiting effects of her diastolic heart

failure and diabetes in the RFC: shortness of breath, fatigue, inability to walk longer than fifteen

to twenty minutes, requirement to rest for thirty minutes after walking, exertional malaise, and

dizziness.3

In discussing her formulation of Plaintiff’s RFC, the ALJ’s only reference to the

symptoms related to Plaintiff’s diastolic heart failure and her diabetes was to Plaintiff’s own

testimony about those symptoms, Tr. 21–26, which the ALJ erroneously rejected. As a result, the

error in failing to include the limiting effects of Plaintiff’s diastolic heart failure and diabetes—

whether those conditions are severe or non-severe—was harmful error. Lewis, 498 F.3d at 911.

V. VE Hypothetical

Plaintiff argues that the ALJ’s failure to include in the VE hypothetical Plaintiff’s

limitations with concentration, persistence, or pace was legal error. Pl. Op. Br. 19. Plaintiff

argues that when she suffers from panic attacks, she is unable to concentrate or persist at all. Id.

at 20. Plaintiff also argues that because the VE hypothetical excluded many of Plaintiff’s

limitations, the VE’s testimony that Plaintiff can perform restricted light work has no evidentiary

value. Finally, Plaintiff argues that because Plaintiff was nearly fifty years old at the time of the

hearing, the ALJ erred by failing to consider the Grids because Plaintiff’s age was borderline. Id.

3 Plaintiff also argues that she has neuropathy and a history of carpal tunnel surgeries that

contribute to her disability but fails to identify any limiting effects of those conditions that were

excluded from the RFC.

Plaintiff is correct that a VE’s testimony has no evidentiary value if the hypothetical

posed to the VE by the ALJ failed to include all a claimant’s limitations. Embrey v. Bowen, 849

F.2d 418, 422 (9th Cir. 1988) (citing Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984)).

However, the ALJ need not include limitations identified by witnesses whose testimony was

accorded diminished weight. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008)

(citing Batson v. Comm’r, 359 F.3d 1190, 1195–96 (9th Cir. 2004)). Here, the ALJ did not

include the limitations identified by the lay witnesses, Dr. Chamie, and Plaintiff in the RFC and

the VE hypothetical because the ALJ discounted or rejected their testimony. Because the ALJ

committed legal error in analyzing the lay witness testimony, subjective symptom testimony, and

the medical opinion evidence, the ALJ also erred in posing an incorrect VE hypothetical. See,

e.g., Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006) (VE hypothetical was

legally inadequate because it failed to include all functional limitations supported by substantial

evidence). Because the ALJ must formulate a new RFC and VE hypothetical that includes all

Plaintiff’s limitations, the Court need not address Plaintiff’s remaining arguments concerning her

age and alleged problems with concentration, persistence, or pace. Those claims should be

addressed by the ALJ in the first instance on remand.

VI. Remand for Benefits

Plaintiff asks the Court to credit the above-described testimony as true and remand this

case for payment of benefits. Pl. Op. Br. 20. To determine which type of remand is appropriate,

the Ninth Circuit uses a three-part test. Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir.

2014); Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1100 (9th Cir. 2014). First, the

ALJ must fail to provide legally sufficient reasons for rejecting evidence, whether claimant

testimony or medical opinion. Garrison, 759 F.3d at 1020. Second, the record must be fully

developed, and further administrative proceedings would serve no useful purpose. Id. Third, if

the Court remands the case and credits the improperly discredited evidence as true, the ALJ

would be required to find the claimant disabled. Id. To remand for an award of benefits, each

part must be satisfied. Id. The “ordinary remand rule” is “the proper course,” except in rare

circumstances. Treichler, 775 F.3d at 1101.

The Court finds that the ordinary remand rule is the proper course in this case. Plaintiff

did not develop her argument that remand for an award of benefits is the appropriate remedy.

The record is not fully developed on the question of Plaintiff’s functional limitations, and any

conflicts between the reviewing physicians’ opinions and Dr. Chamie’s opinion, once properly

weighed, must be resolved. Further, it is unclear whether the ALJ would be required to find

Plaintiff disabled on remand. The VE identified several sedentary jobs based on a hypothetical

posed by Plaintiff’s counsel that included all of Plaintiff’s alleged limitations except rest breaks

of fifteen to thirty minutes twice per day. Tr. 78–79. The ALJ must develop the record to

determine whether Plaintiff can perform other jobs available in the national economy after

formulating an RFC that includes all of Plaintiff’s functional limitations. Accordingly, the Court

remands for further administrative proceedings.

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CONCLUSION

Based on the foregoing, the Commissioner’s decision is REVERSED and REMANDED

for further administrative proceedings.

IT IS SO ORDERED.

DATED:___J_u__n_e_ 2_1__, _2_0_2_1________.

__________________________________

MARCO A. HERNÁNDEZ

United States District Judge