Fusselman v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

AMANDA F.,1

Plaintiff, Civ. No. 2:22-cv-01937-MC

v. OPINION AND ORDER

COMMISSIONER, SOCIAL SECURITY

ADMINISTRATION,

Defendant.

_____________________________

MCSHANE, Judge:

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security

(Commissioner) denying her application for disability insurance benefits (DIB) and supplemental

security income (SSI) under Titles II and XVI of the Social Security Act. This Court has

jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).

Plaintiff applied for benefits on September 23, 2019, alleging disability as of June 23, 2017.

Tr. 13.2 Following a hearing, an Administrative Law Judge (“ALJ”) determined Plaintiff was not

disabled under the Act. Tr. 14–31. Plaintiff alleges that the ALJ erred in (1) determining Plaintiff’s

migraine headaches were not a severe impairment at step two; (2) rejecting Plaintiff’s subjective

symptom testimony; and (3) rejecting the medical opinion of Jared Hulme, NP-C, DNP. Because

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.

2 “Tr” refers to the Transcript of Social Security Administrative Record provided by the

Commissioner.

the Commissioner’s decision is based on proper legal standards and supported by substantial

evidence, the Commissioner’s decision is AFFIRMED.

STANDARD OF REVIEW

The reviewing court shall affirm the Commissioner’s decision if the decision is based on

proper legal standards and the legal findings are supported by substantial evidence in the record.

See 42 U.S.C. § 405(g); Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.

2004); Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021). “Substantial evidence is ‘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.’” Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir.

2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine whether

substantial evidence exists, the court reviews the administrative record as a whole, weighing both

the evidence that supports and that which detracts from the ALJ’s conclusion. Davis v. Heckler,

868 F.2d 323, 326 (9th Cir. 1989) (citing Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986)).

“‘If the evidence can reasonably support either affirming or reversing,’ the reviewing court ‘may

not substitute its judgment’ for that of the Commissioner.” Gutierrez v. Comm’r of Soc. Sec.

Admin., 740 F.3d 519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720–21 (9th

Cir. 1996)).

DISCUSSION

The Social Security Administration utilizes a five–step sequential evaluation to determine

whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2012). The burden

of proof rests on the claimant for steps one through four, and on the Commissioner for step five.

Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett v. Apfel, 180 F.3d

1094, 1098 (9th Cir. 1999)). At step five, the Commissioner’s burden is to demonstrate that the

claimant can make an adjustment to other work existing in significant numbers in the national

economy after considering the claimant’s residual functional capacity (“RFC”), age, education,

and work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If the Commissioner

fails to meet this burden, then the claimant is considered disabled. Id. If, however, the

Commissioner proves that the claimant is able to perform other work existing in significant

numbers in the national economy, the claimant is not disabled. Bustamante v. Massanari, 262

F.3d 949, 953-54 (9th Cir. 2001).

The ALJ determined Plaintiff had the following severe impairments: fibromyalgia, mild

carpal tunnel syndrome, anxiety disorder, depressive disorder, and post-traumatic stress disorder.

Tr. 16. The ALJ then found Plaintiff had the RFC to perform the full range of light work with the

following exceptions:

she can only occasionally climb ladders, ropes, and scaffolds, and

frequently climb ramps and stairs; she is limited to frequent

handling and fingering and no forceful gripping (e.g., swinging a

hammer, turning a lug wrench); she is limited to simple, routine

tasks; and she can have no more than frequent interaction with the

public.

Tr. 20.

I. Step Two

Plaintiff argues the ALJ erred in determining her migraine headaches were non-severe at

step two. Pl. Br. at 8. At step two, a claimant is not disabled if the claimant does not have any

medically severe impairments. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir.

2006); 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment is severe if it

“significantly limits” a claimant’s “physical or mental ability to do basic work activities.” 20

C.F.R. §§ 404.1520(c), 416.920(c). An impairment is not severe “when [the] medical evidence

establishes only a slight abnormality or combination of slight abnormalities which would have

no more than a minimal effect on an individual’s ability to work.” SSR 85-28, available at 1985

WL 56856, at *3. Even if an impairment is not severe, the ALJ must still consider its limiting

effect when formulating the claimant’s RFC. Ghanim v. Colvin, 763 F.3d 1154, 1166 (9th Cir.

2014).

At step two, the ALJ found that Plaintiff had multiple severe impairments, but

determined Plaintiff’s migraine headaches were non-severe because she “sought only minimal

treatment,” had “no ongoing ER visits,” and her symptoms were effectively managed with

treatment. Tr. 16. The ALJ did not err in reaching this conclusion. Notably, although migraine

diagnosis is carried throughout the record, migraine is rarely a presenting complaint at

appointments. See, e.g., tr. 440, 860, 865, 875. Plaintiff’s records show minimal treatment for

migraines consisting only of medication management. Moreover, Plaintiff generally responded

well to treatment. For example, Plaintiff reported that her headaches “usually resolve” with a

half-dose of medication and sleep. Tr. 786. In August 2020, Plaintiff was prescribed propranolol

and Maxalt, after which Plaintiff had no further medical appointments in the record addressing

migraines. Tr. 724. Finally, Plaintiff was able to work full-time for eight months in 2020, despite

claims that her symptoms had steadily grown worse since 2017. Tr. 928, 48. Plaintiff thus failed

to satisfy the burden of proof as to the severity of her migraines. Accordingly, the ALJ did not

err in finding Plaintiff’s migraines non-severe. However, even if the ALJ had erred as to

migraines, such error would be harmless because the ALJ found that Plaintiff had other

impairments that were severe and continued the disability analysis accordingly. Buck v.

Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) (failure to identify medically determinable

impairment at step two was harmless because step two was decided in claimant’s favor). The

ALJ was thus required to, and did, account for both severe and non-severe impairments,

including Plaintiff’s migraines, in the RFC.

II. Subjective Symptom Testimony

Plaintiff contends the ALJ erred in discounting her subjective statements about her

limitations resulting from fibromyalgia. Pl. Br. at 11. 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. §§ 404.1529, 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 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.

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. 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. 2013). 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 v. Comm’r of Soc. Sec. Admin., 554

F.3d 1219, 1227 (9th Cir. 2009). 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 testified that fibromyalgia causes whole body pain, and that “there’s not a day

that goes by” where she does not hurt. Tr. 45. She testified her pain level is “from a six to an

eight” on regular days, and “from ten to up” on bad days. Tr. 46. According to Plaintiff, her pain

is so bad that she cannot move and wants to do nothing “about 70 to 100 percent of the time.” Tr.

46. Plaintiff stated her symptoms have been “just getting worse” since 2017, and that she had no

periods of improvement. Tr. 48.

The ALJ determined Plaintiff’s statements “concerning the intensity, persistence and

limiting effects of [her] symptoms [were] not entirely consistent with the medical evidence and

other evidence in the record.” Tr. 22. Specifically, the ALJ found Plaintiff’s symptom testimony

was inconsistent with her activities of daily living, conservative treatment record, objective

medical evidence. Additionally, the ALJ pointed to Plaintiff’s sporadic work history as further

support for his conclusions. Tr. 25.

Discussion of activities of daily living may support the decision to give less weight to

symptom testimony in two ways: it may illustrate a contradiction with previous testimony or it

may show that activities “meet the threshold for transferable work skills[.]” Orn v. Astrue, 495

F.3d 625, 639 (9th Cir. 2007); Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012)

(Activities of daily living may be used to discredit a claimant where they either “are transferable

to a work setting” or “contradict claims of a totally debilitating impairment.”). Here, the ALJ

found Plaintiff's “high-functioning activities of daily living” conflicted with her testimony of

debilitating mental and physical symptoms. Tr. 24. The ALJ cited testimony that Plaintiff travels

independently and engages in outdoor hobbies such as hunting, camping, and “being in the

woods” and “creek.” Tr. 24 (citing tr. 386). Further, the ALJ pointed to Plaintiff’s July 2019

statement to her treating provider that she was “working under the table for extra funds and looks

forward to being active each day.” Tr. 24 (citing tr. 571). Finally, the ALJ noted Plaintiff had

sustained full time work for eight months in 2020, after her alleged onset date (AOD), and had

“work[ed] 6–7 days a week and 9 plus hours a day.” Tr. 24 (citing tr. 928). These activities are

inconsistent with Plaintiff’s asserted limitations and are clear and convincing evidence.

Accordingly, the ALJ did not err in relying on them to reject Plaintiff’s symptom testimony.

Plaintiff argues the ALJ failed to consider the “wax[ing] and wan[ing]” nature of fibromyalgia

and relied only on those activities from “good days.” Pl. Br. at 13. However, the ALJ’s reliance

on Plaintiff’s eight-month period of sustained work despite her alleged debilitating symptoms

can hardly be written off as merely a “good day.” E.g., tr. 48-49. Indeed, medical records show

Plaintiff regularly went to the doctor, and received treatment for her waxing and waning

symptoms throughout the eight-month period. E.g., 879, 888, 889. As such, the ALJ properly

considered Plaintiff’s fibromyalgia symptoms in the context of her daily activities and came to

reasonable conclusion as to Plaintiff’s claimed limitations.

Next, the ALJ noted Plaintiff received only routine and conservative treatment for her

fibromyalgia. Tr. 23. “[E]vidence of conservative treatment is sufficient to discount a claimant's

testimony regarding the severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 751 (9th Cir.

2007). To support this conclusion, the ALJ first pointed to a gap in Plaintiff’s neurology

treatment records from November 2018 to January 2020, despite Plaintiff seeking treatment in

November 2018 for “new, generalized whole body pain.” Tr. 23 (citing tr. 707). The ALJ noted

Plaintiff’s fibromyalgia symptoms had been managed with medications and trigger point

injections, and that Plaintiff had not seen a rheumatologist for treatment of her fibromyalgia. Tr.

23. The ALJ further cited Plaintiff’s July 2020 statement to her treating provider that she was

“overall doing well” regarding fibromyalgia and was able to maintain a twelve-hour workday.

Tr. 23-24 (citing tr. 790). The ALJ’s conclusion is reasonable and supported by substantial

evidence. In March 2018, provider notes state Plaintiff had only taken one-third of the prescribed

medication dose for fibromyalgia. Tr. 626. In April 2020, Plaintiff was prescribed baclofen,

pamelor, and zonisamide for fibromyalgia symptoms, and reported to her provider in July 2020

that the medications were “working well.” Tr. 790. In August 2020, Plaintiff reported that trigger

point injections provided “significant relief of her symptoms.” Tr. 721. Plaintiff declined

physical therapy due to “work and time constraints” but told her treating provider she was “doing

at home stretching and exercise routine[s].” Tr. 721. In April 2021, Plaintiff’s treating provider

described her fibromyalgia as “[w]ell managed” with her medications. Tr. 956. This evidence

supports the ALJ's conclusion that Plaintiff's symptoms were not as limiting as she testified.

Parra, 481 F.3d at 751.

The ALJ further noted Plaintiff’s objective medical evidence showing “generally

unremarkable” findings. Tr. 22. An ALJ may consider objective medical evidence when

assessing a claimant's testimony and may discount a claimant's statements if medical opinion

evidence contradicts the claimant's subjective testimony. 20 C.F.R. §§ 404.1529(c)(2),

416.920(c)(2); Carmickle v. Comm'r, 533 F.3d 1155, 1161 (9th Cir. 2008). Here, the ALJ

thoroughly reviewed Plaintiff’s medical records and reasonably concluded that the objective

evidence did not support the severity of the alleged limitations. For example, Plaintiff had

“tender points consistent with fibromyalgia” but she “almost always show[ed] only mild distress

or ‘no distress’ and no other constitutional signs or symptoms.” Tr. 22. Plaintiff’s neurology

exams in November 2018, January 2020, and August 2020, all show largely unremarkable

findings. See tr. 698, 436, 709-10. An MRI of Plaintiff’s lumbar spine in March 2018 showed

only “mild facet changes at L4-5” but “no foraminal stenosis, excellent bone density, and good

disk space preservation.” Tr. 429. An October 2018 MRI of Plaintiff’s cervical spine showed “no

acute findings, with “minimal disc degenerative changes.” Tr. 447. An April 2020 EMG nerve

conduction study showed only “mild bilateral median nerve entrapment across the wrists”

resulting in “no significant axon degeneration.” Tr. 722. The ALJ did not err in the analysis of

Plaintiff’s objective medical evidence.

Finally, the ALJ pointed out that Plaintiff’s work history had been “inconsistent” for

years prior to her AOD. Tr. 25. A Plaintiff’s “poor work history,” may be upheld as a valid

reason to discount testimony. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002); see also

Whitten v. Colvin, 642 F. App’x 710, 712 (9th Cir. 2016) (claimant’s poor work history

suggested primary barrier to employment was motivation rather than disability). The ALJ noted

Plaintiff had only “sporadic work” and no “sustained periods of substantial gainful activity-level

employment.” Tr. 25 (citing tr. 290–92, 299–02). Thus, the ALJ concluded Plaintiff’s ongoing

unemployment was “likely something of longer standing than her current medical conditions. Tr.

25. Indeed, Plaintiff’s work records extend back to 1995. These records reflect multiple years of

years of no work, intermittent work, and years where work falls below what is required for SGA.

Tr. 296–97. The ALJ properly relied on this evidence to discount Plaintiff’s symptom testimony.

In sum, the ALJ did not err in discounting Plaintiff’s symptom testimony because the

ALJ provided “specific, clear and convincing reasons” for doing so. Vasquez v. Astrue, 572 F.3d

586, 591 (9th Cir. 2009) (quoting Smolen v. Chater, 80 F.3d 1273,1282 (9th Cir. 1996)).

III. Medical opinion evidence

Because Plaintiff filed her application after March 27, 2017, revised regulations

regarding the evaluation of medical source opinions apply to her claim. See Revisions to Rules

Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01 (Jan. 18, 2017) (codified

at 20 C.F.R. pts. 404 & 416). The revised rules provide that the Social Security Administration

will evaluate medical opinions according to the following factors: supportability; consistency;

relationship with the claimant; specialization; and other factors such as the medical source’s

familiarity with other evidence in the record or with disability program requirements. 20 C.F.R.

§§ 404.1520c(c)(1)–(5), 416.920c(c)(1)-(5); see Tyrone W. v. Saul, No. 3:19-cv-01719-IM, 2020

WL 6363839, at *7 (D. Or. Oct. 28, 2020). “Supportability” and “consistency” are the most

important factors to be considered when evaluating the persuasiveness of medical opinions and,

therefore, the ALJ is required to explain how both factors were considered. See 20 C.F.R. §§

404.1520c(b)(2), 416.920c(b)(2).

“Supportability means the extent to which a medical source supports the medical opinion

by explaining the ‘relevant . . . objective medical evidence.’” Woods v. Kijakazi, 32 F.4th 785,791-

92 (citing 20 C.F.R. § 404.1520c(c)(1)). “Consistency means the extent to which a medical opinion

is ‘consistent . . . with the evidence from other medical sources and nonmedical sources in the

claim.’” Id. at 792 (citing 20 C.F.R. § 404.1520c(c)(2)). Additionally, “[t]he ALJ may but is not

required to explain how other factors were considered, as appropriate, including relationship with

the claimant (length, purpose, and extent of treatment relationship; frequency of examination);

whether there is an examining relationship; specialization; and other factors, such as familiarity

with other evidence in the claim file or understanding of the Social Security disability program’s

policies and evidentiary requirements.” Linda F. v. Comm’r Soc. Sec. Admin., No. C20-5076-

MAT, 2020 WL 6544628, at *2 (W.D. Wash. Nov. 6, 2020).

Treating physician DNP Jared Hulme provided an RFC evaluation as well as a headache

questionnaire in support of Plaintiff’s claim. Tr. 1009-11, 855-57. The ALJ considered both

opinions, ultimately finding both to be unpersuasive. Tr. 28. The ALJ’s conclusion is supported

by substantial evidence. First, the ALJ noted DNP Hulme’s RFC opinion was “conclusory”

without “much in the way of supporting, clinical objective evidence for the limitations aside

from listing claimant’s diagnoses and reported symptoms.” Tr. 28. “The ALJ need not accept the

opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and

inadequately supported by clinical findings.” Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020)

(quoting Thomas, 278 F.3d at 957). For example, DNP Hulme assessed Plaintiff as “capable of

sitting, standing, and walking for a combined total of less than eight hours.” Tr. 1010. However,

there is nothing in the record that explains or supports this limitation. As the ALJ pointed out,

DNP Hulme’s medical treatment notes “overwhelmingly document normal or minimally

abnormal exams, including consistently normal constitutional findings, all of which do not

support the degree of severe limitations opined.” Tr. 28 (citing 744, 748, 758, 759, 764, 767,

771, 774, 778, 780, 785, 790). Similarly, Dr. Hulme’s opinion that migraine headaches would

cause Plaintiff to “miss work more than one day per week” is inconsistent with the record.

Indeed, there is nothing in the record to support this limitation. As the ALJ points out, Plaintiff

had sought no treatment for migraines since starting prophylactic medication in August 2020. Tr.

28, 892. Nor has Plaintiff required emergent treatment for migraines since that time. Tr. 855.

Therefore, the ALJ properly rejected DNP Hulme’s opinion because it was unsupported by and

inconsistent with medical evidence in the record.

In sum, the ALJ acknowledged Plaintiff’s impairments resulted in some functional

limitations, but concluded she was not as limited as she claimed. In doing so, the ALJ provided a

thorough summary of the record as a whole and supported his conclusions with substantial

evidence.

.

CONCLUSION

Because the ALJ’s decision is free of legal error and supported by substantial evidence in

the record, the Commissioner’s final decision is AFFIRMED.

IT IS SO ORDERED.

DATED this 12th day of March, 2024.

/s/Michael McShane

Michael J. McShane

United States District Judge