Bigler v. Commissioner Social Security Administration

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

KIMBERLY B.,1 Case No. 3:22-cv-00436-YY

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER, SOCIAL SECURITY

ADMINISTRATION,

Defendant.

YOU, Magistrate Judge.

Plaintiff Kimberly B. challenges the denial by the Commissioner of the Social Security

Administration (“Commissioner”) of her application for Supplemental Security Income (“SSI”)

under Title XVI of the Social Security Act. This court has jurisdiction to review the

Commissioner’s decision pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, that

decision is REVERSED and REMANDED for further proceedings consistent with this decision.

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

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 in this case.

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

her application date of September 3, 2019. Tr. 18. At step two, the ALJ determined plaintiff

suffered from the following severe impairments: degenerative disc disease with lumbar

radiculopathy and stenosis and right peroneal axonal neuropathy. Id. The ALJ recognized other

impairments in the record, i.e., a history of thyroid cancer, migraines, asthma, status post hip

arthroscopy and mild osteoarthritis of the hips, and a positive nerve conduction study for carpal

tunnel in April 2016, but the ALJ concluded that these impairments were non-severe. Id. at 18-

19.

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

impairments that met or medically equaled a listed impairment. Id. at 20. The ALJ next

assessed plaintiff’s residual functional capacity (“RFC”) and determined she could perform light

work as defined in 20 CFR 416.967(b) with the exceptions that she could (1) frequently climb

ramps and stairs, (2) occasionally climb ropes, ladders, and scaffolds, (3) frequently stoop,

crouch, kneel, and occasionally crawl, (4) occasionally reach overhead bilaterally, and (5)

frequently finger and handle with the right upper extremity. Id. at 21. The ALJ also concluded

that plaintiff should have no exposure to workplace hazards or vibration and should be able to

change positions between sitting and standing in thirty-minute intervals. Id. at 21-22.

At step four, the ALJ found plaintiff was unable to perform any past relevant work. Id. at

27.

At step five, the ALJ considered plaintiff’s age, education, work experience, and RFC

and concluded there were jobs that existed in significant numbers in the national economy that

plaintiff could perform, including storage facility rental clerk, office helper, and collator

operator. Id. at 27-28. Thus, the ALJ concluded plaintiff was not disabled. Id. at 28.

DISCUSSION

Plaintiff argues that the ALJ: (1) erroneously assessed the medical opinions of Drs.

Brown, Wiggins, Buskirk, and Kessler, and (2) improperly discounted her subjective symptom

testimony. Pl. Br. 1. Plaintiff also asks this court to consider new medical evidence presented to

the Appeals Commission after the hearing. Pl. Br. 9.

I. New Evidence

The ALJ held a hearing on February 19, 2021, and issued a decision on April 15, 2021.

Thereafter, plaintiff presented new evidence to the Appeals Council, consisting of MRIs

conducted on March 20, 2021 (Tr. 33-36) and June 7, 2021 (Tr. 8-9). The Appeals Council did

not exhibit the March 20, 2021 MRI report because it did “not show a reasonable probability that

it would change the outcome of the decision,” and did not exhibit the June 7, 2021 MRI report

because it did “not relate to the period at issue.” Tr. 2. Plaintiff argues this new information

“undermines the reviewing physicians’ findings,” and thus the ALJ’s decision. Pl. Br. 11.

Under 42 U.S.C. § 405(g), to remand a case in light of new evidence, “the court examines

both whether the new evidence is material to a disability determination and whether a claimant

has shown good cause for having failed to present the new evidence to the ALJ earlier.” Mayes

v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001). “To be material under section 405(g), the new

evidence must bear ‘directly and substantially’ on the matter in dispute.” Id. (citation omitted).

The plaintiff “must additionally demonstrate that there is a ‘reasonable possibility’ that the new

evidence would have changed the outcome of the administrative hearing.” Id.

Good cause is demonstrated by showing that the new evidence was unavailable earlier.

Id. at 463. However, “[a] claimant does not meet the good cause requirement by merely

obtaining a more favorable report once his or her claim has been denied.” Id. “The claimant

must also establish good cause for not having sought the expert’s opinion earlier.” Id.

Plaintiff does not discuss, and there is nothing in the record to support, a finding that

there is good cause to consider this new evidence. Plaintiff fails to explain “why she did not

seek or could not have obtained an evaluation . . . before the ALJ Hearing.” Id.. Accordingly,

this new evidence cannot be considered by the court, and the case cannot be remanded on that

basis. See id. (holding district court did not abuse its discretion in determining the plaintiff failed

to show good cause for not having introduced evidence earlier).

II. Subjective Symptom Testimony

Plaintiff argues the ALJ improperly rejected her subjective symptom testimony. Pl. Br.

19. When a claimant has medically documented impairments that could reasonably be

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). The ALJ need not

“perform a line-by-line exegesis of the claimant’s testimony” or “draft dissertations when

denying benefits.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). But Ninth Circuit law

“plainly requires” that an ALJ do more than “offer[ ] non-specific conclusions that [the

claimant’s] testimony [is] inconsistent with [certain evidence].” Id. (citations 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 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.

A. Objective Medical Evidence

The ALJ rejected plaintiff’s subjective symptom complaints because they were not

consistent with the objective medical evidence. Tr. 22-25. In evaluating a claimant’s subjective

symptom testimony, an ALJ may consider whether it is consistent 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. The lack of objective medical evidence may not form the 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.”)).

However, when coupled with another permissible reason, 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)).

The ALJ provided valid reasons for rejecting plaintiff’s subjective symptoms complaints

on several grounds. For instance, the ALJ recognized that, while plaintiff reported “significant

right upper extremity symptoms, the record does not document reduced grip strength or observed

difficulty with handling or fingering.” Tr. 24. The ALJ reasoned that plaintiff’s “often normal

upper extremity strength (2F/27; 5F/55, 166) . . . and shoulder range of motion (7F/13), as well

as her lack of grip weakness or grip or fingering abnormality on exam, do not support additional

limitations.” Tr. 25. The ALJ also did not include a cane requirement; while plaintiff reported

using a cane for balance, the ALJ noted several examinations where plaintiff’s gait, stance,

balance, and strength were normal without a cane, and a cane was never prescribed. Tr. 22-25.

The ALJ cited medical records to support these conclusions, and the ALJ’s interpretation of the

records is reasonable.

However, the ALJ erred in discounting plaintiff’s complaints of pain without further

explanation. The ALJ recognized that plaintiff reported pain with repetitive movement of her

right arm and shoulder, which was her dominant side, and constant hip pain that went down into

her foot. Tr. 22. Plaintiff could sit for 10-15 minutes with a pillow behind her back, but had to

lay down after that, due to radiating hip and leg pain. Id. Plaintiff used a heating pad for pain,

so much so that her doctors noted skin changes from constant use. Id.; Tr. 331. Plaintiff

described her lower back pain as “stabbing,” with sudden “lightning strikes” of radiating pain

when she tried to lift anything heavy or sit for a few minutes. Tr. 22. Her ability to twist, turn,

and bend was limited by pain and stiffness, and she had to take breaks when brushing her teeth,

washing her hair, and cooking, to avoid triggering pain. Id. The pain also affected plaintiff’s

ability to focus. Id.

Plaintiff was prescribed gabapentin and Percocet, a narcotic, for “moderate to severe

pain.” Tr. 645, 775. Records show plaintiff’s pain was “stable” on Percocet, Tr. 439, and it was

prescribed on an “as needed” basis. Tr. 592. Plaintiff was cautioned to “use [Percocet]

sparingly.” Tr. 644; see also 472 (“adv to limit percocet”). However, plaintiff testified that her

pain was so severe that she needed to use Percocet three times a day. Tr. 56; Tr. 473 (chart note

describing Percocet use 2-3 times per day); Tr. 645 (“using Percocet more often, requests refill”).

The ALJ recognized that plaintiff had undergone numerous treatments for pain, including

medication:

In terms of treatments, the claimant was prescribed pain medication, muscle-spasm

medication, nerve pain medication, and muscle relaxants, including Neurontin,

Celebrex, methocarbamol, metaxalone, acetaminophen, oxycodone, oxycodone-

acetaminophen, cyclobenzaprine, pregabalin, and Cymbalta. 3F/71-72. Prior to the

relevant period, she attended physical therapy, and received SI and right shoulder

trigger point injections. 2F/26; 5F/43.

Tr. 24. The ALJ determined that plaintiff’s “reduced right hip range of motion . . . , occasional

antalgic gait . . . , paraspinal and sacroiliac tenderness . . . , 4+/5 bilateral hip strength . . . , and

decreased right lower extremity sensation . . . support a limitation to light work” with restrictions

surrounding use of stairs, ladders, certain movements, and exposures to vibrations or hazards, as

well as the ability to switch from sitting to standing every thirty minutes. Tr. 25. The ALJ noted

that “[t]hese limitations are designed to accommodate neck, back, and right shoulder pain and

stiffness, and avoid exacerbating the claimant’s symptoms, as well as avoid injury due to pain or

stiffness while climbing around hazards.” Tr. 25.

But these limitations do not address the chronic and debilitating pain that plaintiff had

described. And while the ALJ cited to plaintiff’s multiple treatments for pain, the ALJ did not

explain how the objective medical evidence contradicts plaintiff’s claim that she suffered from

pain so extreme that it prevented her from working. It is possible that the ALJ intended to

discount plaintiff’s complaints of pain based on her normal examination findings, including

strength and flexing tests; however, if so, this reasoning is not clearly stated in the decision.

Moreover, it is not reasonable for an ALJ to disbelieve a plaintiff’s reports of pain based on

normal strength where the strength tests reveal pain symptoms on exertion. Saenz v. Astrue, No.

CV08-543-TUCCKJJCG, 2010 WL 77305, at *8 (D. Ariz. Jan. 7, 2010). Here, plaintiff reported

major and moderate pain during lumbar flexing, bending, and extending. Tr. 285. The record

elsewhere shows plaintiff resisted hip flexion and abduction without pain, Tr. 329, but at the

same time, she was prescribed pain killers, including a narcotic. In any event, it is unclear from

the ALJ’s decision why plaintiff’s complaints of debilitating pain were rejected, and the case

must be remanded for that analysis.

B. Activities of Daily Living

The ALJ also rejected plaintiff’s subjective symptom complaints based on her activities

of daily living. An ALJ may discount a plaintiff’s symptom testimony based on activities of

daily living to (1) illustrate a contradiction in previous testimony or (2) demonstrate that the

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

Cir. 2007).

The ALJ noted plaintiff was “limited to some degree,” but her activities and record did

“not support that the claimant was limited to the extent alleged.” Tr. 27. In support, the ALJ

made the following observations:

The claimant’s activities of daily living are consistent with the above residual

functional capacity assessment. She was able to drive once or twice a week, shop,

cook, vacuum, do light household chores, and do laundry. While she reported

taking breaks, she was able to handle her own grooming and hygiene. Her ability

to handle her own grooming and hygiene, as well as regularly drive, does not

support greater handling, fingering, or reaching limitations, as these activities

involve handling and fingering (for example, of a toothbrush) and forward reaching

(the steering wheel). Her ability to do chores and shop does not support additional

lifting and carrying limitations, as these activities involve lifting (of laundry and

groceries). Cooking, shopping, and vacuuming both involve sustained standing and

walking, which is consistent with the above light exertional level with the option to

change position between sitting and standing in 30 minute intervals. Her ability to

do laundry and shop does not support additional postural activities, as these

activities involve stooping (to load and unload laundry, and pick up groceries). The

claimant’s activities of daily living do not support a greater degree of exertional

restriction.

Tr. 25.

Many of the cited activities are taken out of context or are consistent with plaintiff’s

testimony. For example, plaintiff testified that her driving, cooking, and other household

activities were all severely limited by pain, causing her to be able to engage in these activities for

only a few minutes and sometimes requiring medications or hours of lying down on a heating

pad afterwards. Tr. 22, 48-50. Plaintiff’s ability to handle her grooming, such as using a

toothbrush, was limited by needing to shake out her hands every few minutes to avoid pain. Tr.

22, 53-54. Plaintiff also needed a family member go with her to the store and help with many

activities, such as putting away laundry, and described stabbing, radiating lower back pain “when

she tried to lift anything heavy, or sit for more than a few minutes.” Tr. 22, 49, 52, 227. Thus,

plaintiff’s activities of daily living do not contradict her allegations of disabling symptoms and

limitations, and therefore do not constitute a basis for rejecting her subjective symptom

testimony. Vertigan v. Halter, F.3d 1044, 1050 (9th Cir. 2001) (holding “the mere fact that a

plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited

walking for exercise, does not in any way detract from her credibility as to her overall

disability”).

III. Mental Health Impairments

Plaintiff asserts the ALJ’s paragraph B analysis is flawed because the ALJ failed to

consider “her reported symptoms, her psychological history, her medications, and descriptions of

how she functioned in therapy.” Pl. Br. 24.

The ALJ observed that plaintiff was diagnosed with major depressive disorder and PTSD.

Tr. 19. The ALJ then examined the four paragraph B criteria, and pointed to portions of the

record to support the conclusion that plaintiff had no limitations or only mild limitations in the

four areas. However, as plaintiff observes, the ALJ made no mention of her multiple prescribed

medications for depression and anxiety, including Xanax, Lexapro, trazodone, and hydroxyzine,

or that she suffered from “a lot of anxiety” and panic attacks (Tr. 439), was “struggling,” had no

appetite, and had insomnia. Tr. 451. Plaintiff also had passive suicidal thoughts (Tr. 723) and a

fear of dying (Tr. 451), but stated, “I stay alive because I don’t want to hurt my family.” Tr. 723.

Plaintiff described that her anxiety interfered with her social activities and was not relieved by

medication. Tr. 452. She further described that she had a “lot of depression and anxiety” that

“gets in the way of [her] functioning.” Tr. 697, Tr. 720. On more than one occasion, medical

records indicate that plaintiff’s “symptoms cause clinically significant distress in important areas

of function.” Tr. 620, 736.

The ALJ’s paragraph B determination is reviewed for substantial evidence. 42 U.S.C. §

405(g). When “interpreting the evidence and developing the record, the ALJ does not need to

‘discuss every piece of evidence.’” Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th

Cir. 2003); Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (recognizing an ALJ

“need not discuss all evidence presented to her”) (emphasis in original). As the Ninth Circuit

has explained, an “ALJ is not required to discuss evidence that is neither significant nor

probative.” Howard, 341 F.3d at 1012. However, an ALJ “must explain why ‘significant

probative evidence has been rejected.’” Vincent, 793 F.2d at 1395 (citation omitted). Here, the

ALJ failed to discuss significant probative evidence, including plaintiff’s prescribed medications,

her symptoms, and records indicating that her “symptoms cause clinically significant distress in

important areas of function.”

Moreover, 20 C.F.R. § 404.1545(a)(2) provides that, in determining the RFC, “[w]e will

consider all of your medically determinable impairments of which we are aware, including your

medically determinable impairments that are not ‘severe[.]’” See also Hutton v. Astrue, 491 F.

App’x 850 (9th Cir. 2012) (“Regardless of its severity, however, the ALJ was still required to

consider Hutton’s PTSD when he determined Hutton’s RFC.”). Thus, even if the ALJ had

properly concluded that plaintiff’s mental impairments were non-severe, they must be factored

into the RFC, which did not occur in this case.

It is unnecessary and premature to reach the remaining issues presented in plaintiff’s

briefing.

ORDER

The Commissioner’s decision is REVERSED and REMANDED for further proceedings

consistent with this opinion.

DATED June 12, 2023

/s/ Youlee Yim You

Youlee Yim You

United States Magistrate Judge