Berenger v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

HERMINE B.,1

Plaintiff, Civ. No. 3:22-cv-00879-MC

v. OPINION AND ORDER

COMMISSIONER, SOCIAL SECURITY

ADMINISTRATION,

Defendant.

_____________________________

MCSHANE, Judge:

Plaintiff Hermine B. seeks judicial review of the final decision of the Commissioner of

Social Security (“Commissioner”) denying her application for Supplemental Security Income

(“SSI”) and Disability Insurance Benefits (“DIB”) under the Social Security Act (the “Act”).

This Court has jurisdiction under 42. U.S.C. §§ 405(g) and 1383(c)(3). For the reasons explained

below, the Commissioner’s decision is reversed and remanded for further proceedings.

STANDARD OF REVIEW

The district court may set aside a denial of benefits only if the Commissioner’s findings

are “‘not supported by substantial evidence or [are] based on legal error.’” Bray v. Comm’r of

Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc. Sec. Admin., 466

F.3d 880, 882 (9th Cir. 2006)). Substantial evidence is defined as “‘more than a mere scintilla [of

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

last name of the non-governmental party in this case.

1 – OPINION AND ORDER

evidence] but less than a preponderance; it is such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.’” Id. (quoting Andrews v. Shalala, 53 F.3d 1035,

1039 (9th Cir. 1995)).

The district court “cannot affirm the Commissioner’s decision ‘simply by isolating a

specific quantum of supporting evidence.’” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir.

2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). Instead, the district court

must consider the entire record, weighing the evidence that both supports and detracts from the

Commissioner’s conclusions. Id. Where the record as a whole can support either a grant or a

denial of Social Security benefits, the district court “‘may not substitute [its] judgment for the

[Commissioner’s].’” Bray, 554 F.3d at 1222 (quoting Massachi v. Astrue, 486 F.3d 1149, 1152

(9th Cir. 2007)).

BACKGROUND

I. PLAINTIFF’S APPLICATION

Plaintiff filed her application for SSI on December 10, 2018, and her application for DIB

on December 11, 2018. Tr. 310, 321. She alleged an onset date of June 20, 2015, for both

applications. Tr. 134. Plaintiff’s claims were denied initially on May 1, 2019, and on

reconsideration on December 23, 2019. Tr. 132-49, 183-98.

Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), and the ALJ

held an initial hearing on September 28, 2020, and a second hearing on January 20, 2021. Tr.

123-31, 98-22. On April 28, 2021, the ALJ issued an opinion finding Plaintiff not disabled. Tr.

60-77. On June 22, 2021, the Appeals Council granted Plaintiff’s request to provide more

information, Tr. 7-8, and on June 30, 2022, Plaintiff produced a letter from Dr. Sonia Sosa

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regarding Plaintiff’s diagnosis of fibromyalgia, Tr. 5-6. On May 5, 2022, the Appeals Council

concluded Dr. Sosa’s letter did not provide a basis for changing the ALJ’s decision, and denied

Plaintiff’s request for reconsideration, making the ALJ’s decision the final decision of the

Commissioner. Tr. 52-55. This appeal followed.

II. THE SEQUENTIAL ANALYSIS

A claimant is considered disabled if she is 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). “Social Security Regulations set out a five-step sequential process for

determining whether an applicant is disabled within the meaning of the Social Security Act.”

Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Those five steps are: (1)

whether the claimant is currently engaged in any substantial gainful activity; (2) whether the

claimant has a severe impairment; (2) whether the impairment meets or equals a listed

impairment; (4) whether the claimant can return to any past relevant work; and (5) whether the

claimant is capable of performing other work that exists in significant numbers in the national

economy. Id. at 724-25. The claimant bears the burden of proof for the first four steps.

Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the

burden at any of those steps, the claimant is not disabled. Id.; Bowen v. Yuckert, 482 U.S. 137,

140-41 (1987).

The Commissioner bears the burden of proof at step five, where the Commissioner must

show the claimant can perform other work that exists in significant numbers in the national

economy, “taking into consideration the claimant’s residual functional capacity, age, education,

3 – OPINION AND ORDER

and work experiences.” Tackett, 180 F.3d at 1100. If the Commissioner fails to meet this burden,

the claimant is disabled. Bustamante, 262 F.3d at 954.

III. THE ALJ’S DECISION

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

activity since her alleged onset date. Tr. 63. At step two, the ALJ determined that Plaintiff suffers

from the following medically determinable, severe impairments: “a history of invasive ductal

carcinoma of the right breast, status-post lumpectomy; major depressive disorder; generalized

anxiety disorder; post-traumatic stress disorder; somatic symptoms disorder; personality

disorder; a mild cognitive disorder diagnosed as of September 9, 2020; and headaches.” Tr. 63.

The ALJ also determined that Plaintiff was diagnosed with fibromyalgia via a telemedicine

evaluation on April 10, 2020, but that such a diagnosis did not meet the requirements of Social

Security Ruling 12-2p for diagnosing fibromyalgia. Tr. 64. Therefore, the ALJ concluded that

Plaintiff’s fibromyalgia was not established as a medically determinable impairment. Id.

At step three, the ALJ concluded that Plaintiff did not have an impairment or

combination of impairments that meets or equals a listing. Id. The ALJ then determined

Plaintiff’s residual functional capacity (“RFC”), finding that Plaintiff had the ability to perform

medium work, except that:

[S]he can do simple, routine, and repetitive tasks with a reasoning

level of 1-2; have occasional contact with members of the public

and co-workers; and she should have no exposure to extreme heat,

fumes, gases, dust, and odors in the workplace.

Tr. 67. At step four, the ALJ found that Plaintiff could not perform her past relevant work. Tr.

75. At step five, the ALJ determined that Plaintiff could perform jobs existing in significant

4 – OPINION AND ORDER

numbers in the national economy, including janitor, laundry worker, and rack loader. Tr. 77. The

ALJ therefore concluded that Plaintiff was not disabled. Id.

DISCUSSION

Plaintiff argues that the ALJ erred by (1) not finding her fibromyalgia diagnosis a

medically determinable impairment at step two; (2) improperly discounting Plaintiff’s subjective

symptom testimony; and (3) improperly discounting Dr. Sosa’s medical opinion. The Court

addresses each in turn.

I. STEP TWO

At step two, the ALJ determines what “medically determinable physical or mental

impairments” a claimant has. 20 C.F.R. § 404.1520(a)(4)(ii). However, “[s]tep two is merely a

threshold determination meant to screen out weak claims.” Buck v. Berryhill, 869 F.3d 1040,

1048 (9th Cir. 2017). If the sequential analysis proceeds beyond step two, meaning that it has

been resolved in the claimant’s favor, the failure to classify an impairment as severe will

generally be harmless. Id. at 1049. This is because step two “is not meant to identify the

impairments that should be taken into account when determining the RFC.” Id. at 1048-49. “In

fact, in assessing the RFC, the adjudicator must consider limitations and restrictions imposed by

all of an individual’s impairments, even those that are not ‘severe.’” Id. at 1049 (quotation and

citations omitted, emphasis in original removed). “The RFC therefore should be exactly the same

regardless of whether certain impairments are considered ‘severe’ or not.” Id. (emphasis in

original).

Here, Plaintiff asserts the ALJ erred by failing to include fibromyalgia among Plaintiff’s

medically determined severe impairments at step two.

5 – OPINION AND ORDER

Fibromyalgia is a rheumatic disease that causes inflammation of the fibrous connective

tissue components of muscles, tendons, ligaments, and other tissues, with symptoms that include

chronic pain throughout the body, multiple tender points, fatigue, stiffness, and a pattern of sleep

disturbance that can exacerbate the cycle of pain and fatigue. Revels v. Berryhill, 874 F.3d 648,

656 (9th Cir. 2017). Fibromyalgia is diagnosed “entirely on the basis of the patients’ reports of

pain and other symptoms” and there are “no laboratory tests to confirm the diagnosis.” Id.

(quotation marks and citations omitted).

The Commissioner has issued additional guidance for cases involving fibromyalgia, both

in terms of establishing when a claimant has a medically determinable case of fibromyalgia and

in evaluating fibromyalgia in disability claims. Social Security Ruling (“SSR”) 12-2p, available

at 2012 WL 3104869. Generally, a claimant can establish a medically determinable impairment

of fibromyalgia by providing evidence from an acceptable medical source. Id. at *2. However:

We cannot rely upon the physician’s diagnosis alone. The evidence

must document that the physician reviewed the person’s medical

history and conducted a physical exam. We will review the

physician’s treatment notes to see if they are consistent with the

diagnosis of FM [fibromyalgia], determine whether the person’s

symptoms have improved, worsened, or remained stable over time,

and establish the physician’s assessment over time of the persons

physical strength and functional abilities.

Id.

In order to establish a medically determinable impairment of fibromyalgia, the

diagnosing physician must base her conclusion on:

(1) A widespread history of pain;

(2) At least eleven positive tender points on physical

examination or, alternatively, repeated manifestations of six or

more fibromyalgia symptoms, signs, or co-occurring conditions,

6 – OPINION AND ORDER

especially manifestations of fatigue, cognitive or memory

problems (“fibro fog”), waking unrefreshed, depression, anxiety

disorder, or irritable bowel syndrome;

and

(3) Evidence that other disorders that could cause the signs,

symptoms, or co-occurring conditions were excluded.

Id. at *2-3.

In the record before the ALJ, the first time fibromyalgia was discussed was on April 10,

2020, in a video appointment. Here, Dr. Sonia Sosa’s notes reflect that she and Plaintiff

“[d]iscussed fibromyalgia briefly” and that Dr. Sosa “sent new diagnostic criteria for” Plaintiff to

review. Tr. 1834. Then on June 10, 2020, Dr. Sosa’s notes say, “Fibromyalgia (primary

diagnosis),” with no other explanation. Tr. 1829. Finally, in a letter in support of Plaintiff’s

application for disability, Dr. Sosa stated that Plaintiff has been diagnosed with fibromyalgia. Tr.

2116. As the ALJ correctly noted, “the medical record does not contain the requisite criteria for

the diagnosis of fibromyalgia to be established as a medically determinable impairment as

described in SSR 12-2p.” Tr. 64. Specifically, the ALJ found “there was no documentation of

tender points in the record” and “the record does not show evidence that other disorders, that

could cause the signs or symptoms attributed to fibromyalgia, were excluded.” Id.

After the ALJ’s decision, the Appeals Council accepted a second letter from Dr. Sosa. In

that letter, Dr. Sosa explained:

I understand that a judge rejected the diagnosis of fibromyalgia and

rejected my opinion about [Plaintiff’s] limitations. [Plaintiff’s]

attorney contacted me, and advised me in the drafting of this letter.

The attorney explained that the judge rejected the diagnosis

because the Social Security Administration only recognizes

diagnosis of fibromyalgia made using the 1990 and 2010 ACR

Criteria for the Classification of Fibromyalgia. Those criteria are

7 – OPINION AND ORDER

not the present standard of care for diagnosing fibromyalgia.

However, once I was aware that the Social Security Administration

uses only the older criteria, I performed those evaluations and

diagnosed fibromyalgia under the older criteria. [Plaintiff] clearly

meets criteria for fibromyalgia under all available criteria and is

disabled by this condition.

Tr. 5.

In evaluating 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). Evidence is material if it bears “directly and substantially on the matter in

dispute.” Id. 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. at 462

(quoting Booz v. Sec’y of Health & Hum. Servs., 734 F.2d 1378, 1380-81 (9th Cir. 1984)).

In this case, it is unlikely that Dr. Sosa’s second letter would have changed the outcome

of the administrative hearing. Assuming that Dr. Sosa is correct—for the Court has no reason to

doubt her—that the Commissioner’s requirements for diagnosing fibromyalgia are outdated, the

ALJ and this Court are still required to follow the Commissioner’s guidance. SSR 12-2p

specifically states that a medical provider’s diagnosis alone is not sufficient for fibromyalgia to

be considered a medically determinable impairment. SSR 12-2p, available at 2012 WL 3104869

at *2. With Dr. Sosa’s second letter, all she provides is a diagnosis. Dr. Sosa does not provide

any evidence of positive tender points, other co-occurring conditions, nor that other disorders

that could causes similar symptoms have been excluded. See id. at *2-3.

The ALJ correctly found that the requirements of SSR 12-2p were not met and, therefore,

did not err by finding Plaintiff’s fibromyalgia was not a medically determinable impairment at

8 – OPINION AND ORDER

step two. Moreover, because the new evidence still does not meet the requirements of SSR 12-2p

the Appeals Council did not err in concluding the new evidence had no reasonable probability of

changing the outcome of the proceeding.

II. PLAINTIFF’S SUBJECTIVE SYMPTOM TESTIMONY

Plaintiff contends the ALJ erred in discounting her subjective symptom testimony. To

determine whether a claimant’s testimony about subjective pain or symptoms is credible, an ALJ

performs a two-stage analysis. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017); 20 C.F.R.

§ 416.929. First, the claimant must produce objective medical evidence of an underlying

impairment that could reasonably be expected to produce the symptoms alleged. Treichler v.

Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014); Tommasetti v. Astrue, 533

F.3d 1035, 1039 (9th Cir. 2008). Second, absent affirmative evidence that the claimant is

malingering, the ALJ must provide specific, clear, and convincing reasons for discounting the

claimant’s testimony regarding the severity of the symptoms. Trevizo, 871 F.3d at 678;

Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The ALJ must make findings that

are sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily

discredit the claimant’s testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015).

The Ninth Circuit demands more than a summary of the medical evidence and generic, high-

level reasons why a claimant’s allegations conflict with that evidence. Lambert v. Saul, 980 F.3d

1266, 1277 (9th Cir. 2020). The Ninth Circuit “requires the ALJ to specifically identify the

testimony she or he finds not to be credible and . . . explain what evidence undermines that

testimony.” Id.; Brown-Hunter, 806 F.3d at 494.

9 – OPINION AND ORDER

Clear and convincing reasons for rejecting a claimant’s testimony “include conflicting

medical evidence, effective medical treatment, medical noncompliance, inconsistencies in the

claimant’s testimony or between her testimony and her conduct, daily activities inconsistent with

the alleged symptoms, and testimony from physicians and third parties about the nature, severity

and effect of the symptoms” about which the claimant complains. Bowers v. Astrue, No. 6:11-cv-

583-SI, 2012 WL 2401642, at *9 (D. Or. June 25, 2012) (citing Tommasetti, 533 F.3d at 1040);

Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014). In some circumstances, an ALJ may

reject subjective complaints where the claimant’s “statements at her hearing do not comport with

objective medical evidence in her medical record.” Bray, 554 F.3d at 1227. However, a lack of

objective evidence may not be the sole basis for rejecting a claimant’s subjective complaints. See

Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001).

Plaintiff was diagnosed with breast cancer and had a lumpectomy performed on her right

breast to remove the cancerous tissue, followed with radiation treatment. Tr. 1014, 1001. Due to

the surgery, Plaintiff developed “considerable scar tissue restrictions with palpable cording” in

her upper right arm. Tr. 512. She engaged in physical therapy for her right shoulder from

October 2016 through January 2019 to improve her mobility. See, e.g., Tr. 968, 1640. Plaintiff

was also diagnosed with dysautonomia, a disorder of the autonomic nervous system functions,

which effects Plaintiff’s balance and causes lightheadedness and dizziness. Tr. 772, 784, 799.

See Kellner v. Colvin, No. SACV 12-1457-JPR, 2013 WL 3200581, at *9 n.14 (C.D. Cal. June

24, 2013) (“Dysautonomia refers to a disorder of autonomic nervous system function.”).

In her function report and at the hearing, Plaintiff explained that she is constantly

exhausted and only has “1-3 functional hours a day.” Tr. 377, 107-08. Plaintiff testified that after

10 – OPINION AND ORDER

she showers, she is exhausted and needs to rest. Tr. 110. She goes to her various doctor’s

appointments and art-group therapy for cancer survivors 2-3 times a month. Tr. 110, 381. But

after any appointment she “come[s] straight home” to rest. Tr. 110. She testified that she cannot

“stand for very long” or “sit for very long.” Tr. 107-08. She suffers from pain in her shoulder and

regular migraines. Tr. 133-14. And if she climbs stairs or walk up a hill, she becomes faint, and

if she does not “stop in time to rest,” she faints and falls. Tr. 377.

The ALJ discounted Plaintiff’s testimony because she improved with treatment and the

ALJ found Plaintiff’s testimony was inconsistent with her daily living activities. Neither reason

is supported by substantial evidence in the record.

1. Improvement with Treatment

A claimant’s improvement with treatment is “an important indicator of the intensity and

persistence of . . . symptoms.” 20 C.F.R. § 404.1529(c)(3). Symptom improvement, however,

must be weighed within the context of an “overall diagnostic picture.” Holohan v. Massanari,

246 F.3d 1195, 1205 (9th Cir. 2001); see also Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995),

as amended (Apr. 9, 1996) (“Occasional symptom-free periods . . . are not inconsistent with

disability.”).

The ALJ concluded that Plaintiff’s shoulder and arm improved with treatment. Tr. 75.

Although Plaintiff saw improvement over her two years of physical therapy, she still consistently

complained of shoulder pain and limited mobility in her right arm. See, e.g., Tr. 1648 (May 30,

2018 – “Arm feeling substantially better. It still hurts with most activities, but much less now.”);

Tr. 1368 (Sept. 4, 2018 – “‘My shoulder’s been getting better and better’ with OMT . . . Still

‘hurts really badly’ with certain motions (reaching into back seat of car, reaching up at odd

11 – OPINION AND ORDER

angle) but pain is only brief.”); Tr. 1643 (Dec. 17, 2018 – “has notice[d] an increase in pain of

the last 1-2 months, up to 7/10 pain”); Tr. 1964 (Aug. 6, 2020 – “Reaching for objects above her

head – this seems to be getting overall better although still somewhat difficult.”). Although her

pain lessened, she still experienced pain with the use of her arm even after years of physical

therapy. Although Plaintiff’s shoulder did improve, the ALJ did not explain how such

improvement was inconsistent with Plaintiff’s testimony that she still experiences pain in her

shoulder and has mobility issues. This rationale is not supported by substantial evidence and

constitutes harmful error.

2. Daily Living Activities

An ALJ may rely on daily living activities as a basis for discounting subjective symptoms

if the claimant’s activities contradict her testimony or meet the threshold for transferable skills.

Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012); Orn v. Astrue, 495 F.3d 625, 639 (9th

Cir. 2007). For daily activities to discount subjective symptom testimony, the activities need not

be equivalent to full-time work; it is enough that the claimant’s activities “contradict claims of a

totally debilitating impairment.” Molina, 674 F.3d at 1113. Claimants do not, however, need to

be utterly incapacitated to receive disability benefits, and an ability to complete certain routine

activities is insufficient to discount subjective symptom testimony. See id. at 1112-13 (noting

that “a claimant need not vegetate in a dark room in order to be eligible for benefits” (quotation

marks omitted)).

The ALJ discounted Plaintiff’s subjective testimony because she attends a weekly yoga

class for cancer patients and goes on walks on the weekend. Such activities were encouraged and

recommended by Plaintiff’s medical providers and do not contradict her testimony regarding her

12 – OPINION AND ORDER

fatigue or need to rest every 15 minutes on her walk. See Vertigan v. Halter, 260 F.3d 1044,

1050 (9th Cir. 2001) (certain activities such as limited walking for exercise do not detract from a

claimant’s credibility); Jordan v. Astrue, 262 F. App’x 843, 845 (9th Cir. 2008) (claimant’s

ability to do some therapeutic exercises was not inconsistent with allegation that he needed to lie

down regularly to alleviate pain). The ALJ also referenced Plaintiff’s trip to London three

different times as evidence that she was capable of more than she claimed. Tr. 69, 75. A careful

review of the record makes clear that Plaintiff made that trip for her mother’s funeral and the trip

set her back in her recovery from her breast cancer surgery. Tr. 645, 814, 976. Sometimes we

sacrifice our own health for those we love, and such a sacrifice should not be used against

Plaintiff.

Finally, the ALJ did not explain how Plaintiff’s walking, yoga, and ability to do basic

household chores undermined Plaintiff’s testimony that she only has “1-3 functional hours” per

day, nor did the ALJ expand on any other activities of daily living that would support this

conclusion. Accordingly, Plaintiff’s activities are not a specific, clear, and convincing reason

supported by substantial evidence upon which to discount Plaintiff’s subjective symptom

testimony.

III. MEDICAL OPINION EVIDENCE

Finally, Plaintiff argues the ALJ improperly rejected Dr. Sosa’s medical opinion. Under

the new regulations for evaluating medical opinions, an ALJ “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 [a claimant’s] medical sources.” 20

C.F.R. § 416.920c(a). Instead, the ALJ must evaluate all medical opinions and prior

13 – OPINION AND ORDER

administrative medical findings for persuasiveness. 20 C.F.R. §§ 404.1520c(a)-(b), 416.920c(a)-

(b). In doing so, an ALJ considers the following factors: (1) supportability, as shown by relevant

evidence and explanation; (2) consistency with the record as a whole; (3) the relationship

between the source and the claimant; (4) specialization; and (5) other factors, including the

source’s familiarity with other information in the record. 20 C.F.R. § 416.920c(c). Of these,

supportability and consistency are the most important and must be articulated in the ALJ’s

decision. 20 C.F.R. § 416.920c(b)(2). These regulations displace the Ninth Circuit’s standard

requiring an ALJ to provide “specific and legitimate” reasons for rejecting a treating or

examining doctor’s opinions. Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022). Now, an

ALJ’s decision for discrediting any medical opinion “must simply be supported by substantial

evidence.” Id.

Dr. Sosa began seeing Plaintiff in December 2018. Tr. 1891. As explained above, Dr.

Sosa wrote a letter on Plaintiff’s behalf on January 8, 2021. Tr. 2116. In his letter, Dr. Sosa

opined that Plaintiff would not “be able to work even 20 hours of work per week” because

Plaintiff would not be able to “get through even her first day at a job without worsening

symptoms to the extent that she would be required to rest for several days.” Id. Dr. Sosa then

described Plaintiff’s numerous diagnoses and explained that Plaintiff’s limitations do “not stem

from a single diagnosis but the sum of the parts.” Tr. 2117.

Dr. Sosa explained that Plaintiff is “unable to wait in our waiting room without

experiencing a panic attack” and that her staff now recognizes Plaintiff and “brings her into an

exam room early in order to avoid this situation.” Id. Dr. Sosa also opined that Plaintiff cannot

spend more than 15 minutes outside on days that are warmer than 80 degrees without

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“developing pre-syncopal or dizzy reactions.” Id. And she experiences these same symptoms if

she stands in one position for more than 5-10 minutes. Id. Dr. Sosa opined that Plaintiff is

“unable to perform any repetitive overhead reaching or lifting” due to her lymphedema in her

right shoulder. Id.

The ALJ found Dr. Sosa’s opinion unpersuasive, concluding (1) it was not supported by

her treatment notes; (2) there was no evidence of any recurrence of cancer; (3) it was inconsistent

with Plaintiff showing improvement with treatment; and (4) it was inconsistent with Plaintiff’s

daily living activities. Tr. 72.

The ALJ offered no specifics as to how Dr. Sosa’s opinion was inconsistent with her own

treatment notes. This Court’s careful review of the record was unable to find inconsistencies

between Dr. Sosa’s opinion and her notes. See, e.g., Tr. 791 (discussing dizzy spells with

flashing lights and walking up hill); 800 (reported feeling “faint and lightheaded and nearly

passing out” after one flight of stairs); 1831 (discussing Plaintiff’s fatigue); 1964 (Plaintiff “can

walk for an hour if she rests every 15 min or so”). Plaintiff met with Dr. Sosa regularly to discuss

her condition and issues and try new treatments, whether it was adjustment in medications or

referrals to specialists. See, e.g., Tr. 1309 (referred to ophthalmologist); 1312 (referred to

cardiologist); 1355 (lab work to test allergies); 1365 (testing Plaintiff’s tryptase levels); 1373

(ordered 48-hour Holter Monitor). Because Dr. Sosa’s treatment notes are consistent with her

opinion, the ALJ’s rationale was not supported by substantial evidence.

The Court is troubled by the ALJ’s comment that “there was no evidence of any cancer

recurrence,” as a reason for finding Dr. Sosa’s opinion not persuasive. Tr. 72. Neither Plaintiff

nor Dr. Sosa claimed she was disabled because of her breast cancer diagnosis, but because, in

15 – OPINION AND ORDER

part, of the lymphedema that developed after her lumpectomy. When listing Plaintiff’s

diagnoses, Dr. Sosa did not list breast cancer. Tr. 2116 (“dysautonomia . . . anxiety, depression,

poor concentration, hyperarousal/Post Traumatic Stress Disorder, chronic migraines,

fibromyalgia”). The fact that Plaintiff’s cancer has not returned has no bearing on whether Dr.

Sosa’s medical opinion is persuasive, and it was harmful error for the ALJ to find otherwise.

The ALJ’s remaining rationales—that Plaintiff showed improvement with treatment and

her daily living activities—are not supported by substantial evidence for the reasons explained

above. The ALJ erred by rejecting Dr. Sosa’s medical opinion for reasons that are not supported

by substantial evidence.

IV. REMAND

In this case, the Court has determined that the ALJ’s opinion contains non-harmless

errors and so must determine whether remand should be for further proceedings or for an award

of benefits. The decision whether to remand for further proceedings or for the immediate

payments of benefits lies within the discretion of the court. Treichler, 775 F.3d at 1101-02. A

remand for 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 (quotation marks and citations

omitted); see also Dominguez v. Colvin, 808 F.3d 403, 407–08 (9th Cir. 2015), as amended (Feb.

5, 2016) (summarizing the standard for determining the proper remedy). The second and third

prongs of the test often merge into a single question: Whether the ALJ would have to award

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benefits if the case were remanded for further proceedings. Harman v. Apfel, 211 F.3d 1172,

1178 n.7 (9th Cir. 2000).

In this case, the ALJ erred by (1) failing to either credit Plaintiff’s symptom testimony or

give legally sufficient reasons for rejecting it, and (2) failing to either credit the limitations as

assessed by Dr. Sosa in her January 8, 2021, letter or give legally sufficient reasons for rejecting

them. Given the record, and the complicated nature of Plaintiff’s diagnoses and treatment, the

Court concludes that the appropriate remedy is a remand for further proceedings. On remand, the

ALJ should:

(1) Credit Plaintiff’s testimony or give specific, clear, and convincing reasons supported

by substantial evidence; and

(2) Credit Dr. Sosa’s opinion in her January 8, 2021, letter or give legally sufficient

reasons for assigning limited weight to that opinion.

CONCLUSION

For these reasons, the Commissioner’s final decision is REVERSED and REMANDED

for further proceedings consistent with this Opinion and Order.

IT IS SO ORDERED.

DATED this 30th day of October, 2023.

/s/ Michael McShane

Michael J. McShane

United States District Judge

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