Brood v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DARALYN B.,1 Case No. 1:21-cv-00519-JR

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER OF SOCIAL

SECURITY ADMINISTRATION,

Defendant.

RUSSO, Magistrate Judge:

Plaintiff Daralyn B. brings this action for judicial review of the final decision of the

Commissioner of Social Security (“Commissioner”) denying her applications for Title II Disability

Insurance Benefits and Disabled Widow’s Benefits under the Social Security Act. All parties have

consented to allow a Magistrate Judge enter final orders and judgement in this case in accordance

with Fed. R. Civ. P. 73 and 28 U.S.C. § 636(c). For the reasons set forth below, the Commissioner’s

decision is reversed, and this case is remanded for the immediate payment of benefits as of May

20, 2015.

1 In the interest of privacy, this opinion uses only the first name and 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.

PROCEDURAL BACKGROUND

Born in 1958, plaintiff alleges disability beginning March 1, 2013, due to back pain,

memory problems, heart problems, diabetes, and chronic obstructive pulmonary disease. Tr. 209-

23, 237. Her applications were denied initially and upon reconsideration. Tr. 112-21, 130-35. On

November 27, 2017, a hearing was held before an Administrative Law Judge (“ALJ”), wherein

plaintiff was represented by counsel and testified, as did a vocational expert (“VE”). Tr. 29-59. On

March 1, 2018, the ALJ issued a decision finding plaintiff not disabled. Tr. 10-28.

Plaintiff timely filed an appeal, and, on December 16, 2019, District Judge Hernandez

reversed the ALJ’s decision and remanded the case for further proceedings. In particular, Judge

Hernandez found that the ALJ erred in evaluating the medical opinion of examining psychologist

Michael O’Connell, Ph.D., who diagnosed plaintiff with somatic symptom disorder. Tr. 971-79.

On December 15, 2020, a second ALJ hearing was held. Tr. 901-29. On January 28, 2021,

the ALJ issued a second decision finding plaintiff not disabled. Tr. 876-900.

THE ALJ’S FINDINGS

At step one of the five step sequential evaluation process, the ALJ found plaintiff had not

engaged in substantial gainful activity since the alleged onset date. Tr. 882. At step two, the ALJ

determined the following impairments were medically determinable and severe: “chronic

obstructive pulmonary disease (COPD), atrial fibrillation, degenerative disc disease of the spine,

and obesity.” Id. At step three, the ALJ found plaintiff’s impairments, either singly or in

combination, did not meet or equal the requirements of a listed impairment. Tr. 887.

Because she did not establish presumptive disability at step three, the ALJ continued to

evaluate how plaintiff’s impairments affected her ability to work. The ALJ resolved that plaintiff

had the residual function capacity (“RFC”) to perform sedentary work as defined in 20 C.F.R. §

404.1567(a) except:

[She] can occasionally climb ramps and stairs, but never climb ladders, ropes, or

scaffolds; she can frequently balance, and occasionally stoop, kneel, crouch, and

crawl; she should avoid concentrated exposure to extreme cold, fumes, odors, dusts,

gases, and poorly ventilated areas; she should avoid even moderate exposure to

hazardous machinery and unprotected heights.

Id.

At step four, the ALJ determined plaintiff was capable of performing her past relevant work

as a User Support Analyst and Quality Assurance Analyst. Tr. 893.

DISCUSSION

Plaintiff argues the ALJ erred by: (1) finding her somatic symptom disorder not medically

determinable at step two; and (2) rejecting her subjective symptom statements concerning her need

to frequently change positions.2 Alternatively, plaintiff argues that the record warrants further

development regarding her somatic symptom disorder.

The Court finds the second issue raised by plaintiff dispositive.3 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

2 Plaintiff does not challenge the ALJ’s treatment of her hearing testimony, including concerning

her mental limitations, except in regard to her need “to change positions.” Pl.’s Opening Br. 10

(doc. 16). The Court therefore conscribes its analysis exclusively to that issue.

3 As address herein, the Court finds plaintiff disabled as of May 20, 2015. Dr. O’Connell’s

evaluation did not take place until February 2016 and was not proffered retrospectively. Tr. 492-

99. Moreover, as Judge Hernandez indicated, Dr. O’Connell did not provide any concrete

functional limitations, such that his opinion does not support a finding of disability even if credited

as true (or even necessarily alter the sequential evaluation process if properly considered at step

two). Tr. 982; see also Tr. 498 (Dr. O’Connell recommending that plaintiff follow up with a

medical doctor to obtain “information regarding the degree to which organic findings appear

consistent with [plaintiff’s] reported level of functional impairment”).

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). 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).

Thus, in formulating the RFC, the ALJ is not tasked with “examining an individual’s

character” or propensity for truthfulness, and instead assesses whether the claimant’s subjective

symptom statements are consistent with the record. SSR 16-3p, available at 2016 WL 1119029. If

the ALJ’s finding regarding the claimant’s subjective symptom testimony 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).

At the hearing, plaintiff testified that she was unable to work due to back pain and

limitations associated therewith, explaining: “I am moving all the time. I can’t stand for long

periods. I can’t sit for long periods.” Tr. 910, 917. She endorsed the need to change position every

5-to-10 minutes. Tr. 921-22.

After summarizing her hearing testimony, the ALJ concluded that plaintiff’s medically

determinable impairments could reasonably be expected to produce some degree of symptoms, but

her “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 for the reasons

explained in this decision.” Tr. 889. As to plaintiff’s back impairment, the ALJ resolved that the

2015 “imaging studies do not support a finding of disability” because they showed only mild-to-

moderate degenerative changes. Tr. 890. The ALJ also noted plaintiff’s range of motion in her

back and hips was only mildly limited, plaintiff declined additional physical therapy and rarely

used narcotic pain medication, and that surgery was not recommended. Id. Specifically in regard

to plaintiff’s attested need to alternate positions, the ALJ cited the lack of “objective evidence.”4

Tr. 891.

Initially, the record reflects that plaintiff underwent a course of physical therapy in

February and March 2016, and started a second course in September 2016 due to ongoing pain

complaints. Tr. 578-80, 598-600, 617-26, 849-53. At that time, plaintiff reported that “PT in the

past has worsened pain” but she has continued to do “water therapy in her home pool after being

cut off after 4 PT visits.” Tr. 598. She did not complete the second course of physical therapy

because it made her pain worse, denoting that it takes her “days to recover.” Tr. 599, 626-27, 665,

853. Accordingly, the fact that plaintiff did not pursue additional physical therapy or other

modalities of conservative treatment does not undermine her subjective symptom testimony.

Moreover, the fact that plaintiff was not a surgical candidate does not somehow render her

pain complaints invalid. See Tr. 500-01 (orthopedic specialist Glen O’Sullivan, M.D., observing

diminished reflexes, mild left-sided weakness, and a restricted range of motion in the neck,

shoulders, and back upon exam, as well as objective degenerative changes via imaging, but

otherwise no “findings that warrant surgical intervention currently”). And plaintiff’s primary care

provider continually counseled her on the need to limit her use of narcotic pain medications in

4 To the extent the Commissioner also cites to plaintiff’s “improvements through treatment,” daily

activities, and “termination and subsequent job search,” the Court does not find that the ALJ raised

these reasons in relation to the challenged testimony. Def.’s Resp. Br. 9-12 (doc. 17). Regardless,

plaintiff began consistently reporting back pain back in 2015, and such pain complaints persisted

despite plaintiff undergoing regular treatment and, ultimately, significant weight loss. Concerning

daily activities, the record does not contravene plaintiff’s testimony – i.e., she performed a limited

range of activities with frequent breaks, and received regular assistance from her neighbor and

boyfriend. And because the Court does not find plaintiff disabled as of the alleged onset date, the

fact that she briefly received unemployment benefits and tried to find other work is not a valid

basis to discount her testimony concerning her need to alternate positions, especially given the

overall tone and content of the record.

light of her underlying conditions (which result in fatigue and breathing problems) and other

medications. See, e.g., Tr. 562, 570, 666. The fact that plaintiff took this medication as prescribed

does not bely her testimony concerning back pain or the need to change positions.

In any event, “whether the alleged symptoms are consistent with the medical evidence” is

a relevant consideration, but “an ALJ cannot reject a claimant’s subjective pain or symptom

testimony simply because the alleged severity of the pain or symptoms is not supported by

objective medical evidence.” Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007) (citations

omitted). As such, the ALJ may not rely exclusively on the lack of corroborating medical evidence

to discount a claimant's testimony where, as here, the ALJ’s other reasons for finding that

testimony unreliable are not supported by substantial evidence. See Brown v. Colvin, 2014 WL

6388540, *5-6 (D. Or. Nov. 13, 2014) (reversing the ALJ's credibility finding where the only

rationale supported by substantial evidence was inconsistency with the medical record).

Further, courts within this District have been clear that even “mild degenerative disc

disease can have disabling effects.” Dahl v. Comm’r, 2015 WL 5772060, *5 (D. Or. Sept. 30,

2015) (collecting cases). In other words, “mild degenerative changes do not necessarily equate to

mild functional limitations.” Ellefson v. Colvin, 2016 WL 3769359, *6 n.5 (D. Or. July 14, 2016).

Here, plaintiff first mentioned low grade back pain in October 2013. Tr. 354. The record

does not contain any references to back pain again until January 2015, at which point plaintiff

endorsed longstanding back problems but with pain that was “overall . . . getting worse” and

resulted in the need to change position “often.” Tr. 344. At that time, plaintiff was without

insurance so had limited treatment options. Id.

Plaintiff began consistently reporting back pain in May 2015. Tr. 330-32. A May 20, 2015,

imaging study revealed “vertebral body anterior height loss with wedge deformity,” “disc space

height loss with endplate sclerosis,” and “[m]ild hypertrophic degenerative changes” in the lumbar

spine. Tr. 761-62. A comparison study from August 3, 2015, demonstrated “a mild disc bulge

with moderate degenerative facets causing mild bilateral neural foraminal narrowing,” as well as

a “mild to moderate anterior wedge compression fracture involving T12 similar to prior.” Tr. 763-

69. By December 2015, plaintiff remarked “[it] was really getting hard to take the pain” and

requested referrals to a specialist and physical therapy. Tr. 408-09. In January 2016, plaintiff

reported being “[i]in so much pain [she] can’t stand it.” Tr. 560. At that time, plaintiff was

prescribed narcotic pain medication. Tr. 561. Plaintiff’s consultation with Dr. O’Sullivan in

February 2016 did not yield any surgical solutions, such that plaintiff commenced her first course

of physical therapy. In March 2016, plaintiff followed up on obtaining a referral to a pain clinic.

Tr. 569. Thereafter, plaintiff’s back complaints continued, as did her reports of needing to

frequently alternate position, and her providers repeatedly observed her to be in pain and have a

limited range of motion. See, e.g., Tr. 578-79, 654-55, 665, 676, 845, 849-50, 854-55, 1233. As a

result, plaintiff’s longstanding treating physician, Victoria Cordy, M.D., opined in September 2017

that “it would be difficult for [plaintiff] to have a job including sedentary work.” Tr. 676-78.

There is nothing in the record that belies the aforementioned evidence or otherwise

suggests that plaintiff’s back condition markedly improved. Indeed, plaintiff’s more recent records

reflect that she is capable of “3 minutes of physical activity prior to onset of . . . lumbar and hip

discomfort.” Tr. 1564. Given the record before this Court, it was error for the ALJ to disregard

plaintiff’s back pain symptom testimony based on the lack of corroborating objective evidence.

Cf. Kershner v. Massanari, 16 Fed.Appx. 606, 608 (9th Cir. 2001) (ALJ committed reversible

error when he focused on whether minor degenerative disc disease could produce “the symptoms

of extreme pain that the claimant alleges” rather than simply asking whether it could produce the

type of symptoms alleged); see also Carradine v. Barnhart, 360 F.3d 751, 753 (7th Cir. 2004)

(“[p]ain, fatigue, and other subjective, nonverifiable complaints are in some cases the only

symptoms of a serious medical condition”). Indeed, plaintiff was 55 years old at the time of the

alleged onset date and suffered from, amongst other conditions, obesity, and heart problems. It is

beyond reasonable dispute that degenerative disc disease, especially when coupled with these other

impairments, could result in the need to change positions frequently.

The issue therefore becomes the proper legal remedy. The decision whether to remand for

further proceedings or for the immediate payment of benefits lies within the discretion of the court.

Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101-02 (9th Cir. 2014). Nevertheless, a

remand for an award of benefits is generally appropriate when: (1) the ALJ failed to provide legally

sufficient reasons for rejecting evidence; (2) the record has been fully developed, there are no

outstanding issues that must be resolved, and further administrative proceedings would not be

useful; and (3) after crediting the relevant evidence, “the record, taken as a whole, leaves not the

slightest uncertainty” concerning disability. Id. at 1100-01 (citations omitted); see also Dominguez

v. Colvin, 808 F.3d 403, 407-08 (9th Cir. 2015) (summarizing the standard for determining the

proper remedy).

As discussed herein, the ALJ committed harmful legal error in regard to plaintiff’s

subjective symptom testimony. Additionally, the record has been fully developed and there are no

outstanding issues, such that further proceedings would not be useful.5 The ALJ has already had

5 Although the Commissioner cites unresolved issues requiring further development, the only

factual discrepancy the Commissioner identifies is in regard to plaintiff’s subjective symptom

testimony. Def.’s Resp. Br. 13 (doc. 17); but see Atticus W. v. Kijakazi, 2021 WL 5108743, *6 (D.

Or. Nov. 3, 2021) (“[t]he Commissioner’s request for reevaluation of medical opinion evidence is

the ‘heads we win; tails, let’s play again’ scenario that the Ninth Circuit instructs district courts to

avoid”) (collecting cases). As addressed herein, however, an independent review of the record does

two opportunities to assess the record and failed to do so appropriately. See Shawn G. v. Kijakazi,

2021 WL 3683878, *5 (D. Or. Aug. 19, 2021) (where the ALJ already twice improperly discredited

medical evidence, “the Court does not believe that giving the ALJ a third opportunity . . . will

serve a useful purpose”). And plaintiff’s date last insured has now lapsed over five years ago in

regard to her Disability Insurance Benefits, and over seven years ago as to her Disabled Widow’s

Benefits.

If plaintiff’s testimony were credited as true, the ALJ would be required to make a finding

of disability on remand. Specifically, the VE testified that plaintiff’s past relevant work could not

accommodate a sit/stand option. Tr. 926. The VE also stated plaintiff’s past relevant work did not

translate to any skills that would be transferrable to other sedentary work with a sit/stand option.

Tr. 926-27; see also Smith v. Saul, 820 Fed.Appx. 582, 586 (9th Cir. 2020) (remanding “for

calculation and award of benefits” where the VE “concluded that an individual with [the

claimant’s] limitations . . . would be unable to perform competitive employment”).

Finally, the record, as a whole, does not create serious doubt plaintiff is disabled as of the

date of the May 20, 2015, imaging study. Indeed, the Commissioner does not separately address

this element. An independent review of the record shows plaintiff has sought regular treatment for

her back, is not a surgical candidate, and has tried a number of conservative measures (including

physical therapy, over-the-counter medication, narcotics, stretching, etc.), but nonetheless suffers

from chronic pain that is accompanied by the need to frequently change positions. Yet, while

plaintiff alleges disability as of March 2013, there is nothing in the record establishing the presence

of concrete functional limitations prohibiting competitive employment on or around that date. In

not divulge any inconsistency between plaintiff’s back pain and corresponding need to alternate

positions, and the medical record.

fact, plaintiff attempted to find other work after being terminated in early 2013 and did not start

consistently reporting back pain until mid-2015, and the sparse medical records existing prior to

that date do not suggest an analogous level of impairment.

In sum, plaintiff applied for benefits nearly seven years ago, and there are no outstanding

issues given plaintiff’s course of treatment with Dr. Cordy, especially when viewed in conjunction

with plaintiff’s more recent medical records and the VE’s testimony. Thus, the Court finds the

record sufficiently developed as of May 20, 2015, such that the appropriate remedy is to remand

this case for the immediate payment of benefits.

CONCLUSION

For the foregoing reasons, the Commissioner’s decision is REVERSED, and this case is

REMANDED for the immediate payment of benefits as of May 20, 2015.

IT IS SO ORDERED.

DATED this 7th day of July, 2022.

/s/ Jolie A. Russo

Jolie A. Russo

United States Magistrate Judge