Opinion

Tometczak v. Kijakazi

Court: District Court, E.D. Washington
Filed: Oct 20, 2021
Cited by: 0 cases
Authority: More cited than 32.3%

requiring the ALJ to sufficiently 19 explain why he discounted claimant’s symptom claims

How later courts described this case

requiring the ALJ to sufficiently 19 explain why he discounted claimant’s symptom claims
Ms. Vertigan could 17 grocery shop without assistance, walk approximately an hour in the malls, play 18 cards, swim, watch television, and read, but these activities did not consume a 19 substantial part of her day and so did not detract from her credibility
The court “must 20 consider the entire record as a whole, weighing both the evidence that supports and 21 the evidence that detracts from the Commissioner's conclusion,” not simply the 22 evidence cited by the ALJ or the parties.
emphasizing that treatment records must be 20 viewed considering the overall diagnostic record

Written by the judges who cited it.

The opinion

1 Oct 20, 2021

2 SEAN F. MCAVOY, CLERK

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

5 MICHAELA T.,1 No. 4:20-cv-5078-EFS

Plaintiff,

ORDER GRANTING PLAINTIFF’S

v. SUMMARY-JUDGMENT MOTION

AND DENYING DEFENDANT’S

KILOLO KIJAKAZI, Acting SUMMARY-JUDGMENT MOTION

Commissioner of Social Security,2

Defendant.

12 Plaintiff Michaela T. appeals the denial of benefits by the Administrative

13 Law Judge (ALJ). Because the ALJ erred when evaluating Plaintiff’s symptom

14 testimony, the medical opinions, and the listings, the Court grants Plaintiff’s

15 Motion for Summary Judgment, ECF No. 19, and denies the Commissioner’s

16 Motion for Summary Judgment, ECF No. 20.

1 To protect the privacy of the social-security Plaintiff, the Court refers to her by

first name and last initial or as “Plaintiff.” See LCivR 5.2(c).

2 On July 9, 2021, Ms. Kijakazi became the Acting Commissioner of Social Security.

She is therefore substituted for Andrew Saul as Defendant. Fed. R. Civ. P. 25(d); 42

U.S.C. § 405(g).

1 I. Five-Step Disability Determination

2 A five-step sequential evaluation process is used to determine whether an

3 adult claimant is disabled.3 Step one assesses whether the claimant is engaged in

4 substantial gainful activity.4 If the claimant is engaged in substantial gainful

5 activity, benefits are denied.5 If not, the disability evaluation proceeds to step two.6

6 Step two assesses whether the claimant has a medically severe impairment

7 or combination of impairments that significantly limit the claimant’s physical or

8 mental ability to do basic work activities.7 If the claimant does not, benefits are

9 denied.8 If the claimant does, the disability evaluation proceeds to step three.9

10 Step three compares the claimant’s impairment or combination of

11 impairments to several recognized by the Commissioner as so severe as to preclude

12 substantial gainful activity.10 If an impairment or combination of impairments

3 20 C.F.R. §§ 404.1520(a), 416.920(a).

4 Id. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).

5 Id. §§ 404.1520(b), 416.920(b).

6 Id. §§ 404.1520(b), 416.920(b).

7 Id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

8 Id. §§ 404.1520(c), 416.920(c).

9 Id. §§ 404.1520(c), 416.920(c).

10 Id. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).

1 meets or equals one of the listed impairments, the claimant is conclusively

2 presumed to be disabled.11 If not, the disability evaluation proceeds to step four.

3 Step four assesses whether an impairment prevents the claimant from

4 performing past work by determining the claimant’s residual functional capacity

5 (RFC).12 If the claimant can perform past work, benefits are denied.13 If not, the

6 disability evaluation proceeds to step five, which assesses whether the claimant

7 can perform other substantial gainful work—work that exists in significant

8 numbers in the national economy—considering the claimant’s RFC, age, education,

9 and work experience.14 If so, benefits are denied. If not, benefits are granted.15

10 The claimant has the initial burden of establishing she is entitled to

11 disability benefits under steps one through four.16 At step five, the burden shifts to

12 the Commissioner to show the claimant is not entitled to benefits.17

11 Id. §§ 404.1520(d), 416.920(d).

12 Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

13 Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

14 Id. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Kail v. Heckler, 722 F.2d 1496, 1497–98

(9th Cir. 1984).

15 20 C.F.R. §§ 404.1520(g), 416.920(g).

16 Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).

17 Id.

1 II. Factual and Procedural Summary

2 Plaintiff filed Title 2 and 16 disability applications.18 Her claims were denied

3 initially and upon reconsideration.19 An administrative hearing was held by video

4 before ALJ Jesse Shumway.20

5 When denying Plaintiff’s disability claims, the ALJ found:

6 • Plaintiff met the insured status requirements through June 30, 2017.

7 • Step one: Plaintiff had not engaged in substantial gainful activity

8 since July 15, 2013, the alleged onset date.

9 • Step two: Plaintiff had the following medically determinable severe

10 impairments: obesity and lumbar degenerative disc disease.

11 • Step three: Plaintiff did not have an impairment or combination of

12 impairments that met or medically equaled the severity of one of the

13 listed impairments.

14 • RFC: Plaintiff had the RFC to perform light work except:

15 she requires a sit/stand option, at will; she can perform all

postural activities only occasionally; and she cannot have

16 concentrated exposure to vibration or hazards (unprotected

heights, moving mechanical parts, etc.).

• Step four: Plaintiff was not capable of performing past relevant work.

18 AR 209–27.

19 AR 140–53.

20 AR 30–71.

1 • Step five: considering Plaintiff’s RFC, age, education, and work

2 history, Plaintiff could perform work that existed in significant

3 numbers in the national economy, such as office helper, mail clerk,

4 and ticket seller.21

5 When assessing the medical-opinion evidence, the ALJ gave:

6 • great weight to the examining opinion of Philip Gibson, Ph.D. and the

7 reviewing opinion of Gordon Hale, M.D., and

8 • little weight to the reviewing opinions of Robert Smiley, M.D., Bruce

9 Eather, Ph.D., and Kristine Harrison, Psy.D.22

10 The ALJ also found Plaintiff’s medically determinable impairments could

11 reasonably be expected to cause some of the alleged symptoms, but her statements

12 concerning the intensity, persistence, and limiting effects of those symptoms were

13 inconsistent with the medical evidence and other evidence.23

21 AR 12–29.

22 AR 22. The ALJ stated that he gave “[g]reat weight” to the “State medical

consultants’ physical opinions.” AR 22. However, only Dr. Hale—not Debra Cowan,

SDM—was qualified to offer a medical opinion. There is no evidence in the record

that Ms. Cowan was qualified to offer a medical opinion. See AR 86, 95 (SDM); 20

C.F.R. § 404.1502 (defining who is an acceptable medical source; an SDM, a single

decision maker, is not included in this definition).

23 AR 20–22.

1 Plaintiff requested review of the ALJ’s decision by the Appeals Council,

2 which denied review.24 Plaintiff timely appealed to this Court.

3 III. Standard of Review

4 A district court’s review of the Commissioner’s final decision is limited.25 The

5 Commissioner’s decision is set aside “only if it is not supported by substantial

6 evidence or is based on legal error.”26 Substantial evidence is “more than a mere

7 scintilla but less than a preponderance; it is such relevant evidence as a reasonable

8 mind might accept as adequate to support a conclusion.”27 Moreover, because it is

9 the role of the ALJ—and not the Court—to weigh conflicting evidence, the Court

10 upholds the ALJ’s findings “if they are supported by inferences reasonably drawn

11 from the record.”28 The Court considers the entire record.29

24 AR 1–9.

25 42 U.S.C. § 405(g).

26 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012).

27 Id. at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)).

28 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).

29 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (The court “must

consider the entire record as a whole, weighing both the evidence that supports and

the evidence that detracts from the Commissioner's conclusion,” not simply the

evidence cited by the ALJ or the parties.) (cleaned up); Black v. Apfel, 143 F.3d 383,

1 Further, the Court may not reverse an ALJ decision due to a harmless

2 error.30 An error is harmless “where it is inconsequential to the ultimate

3 nondisability determination.”31 The party appealing the ALJ’s decision generally

4 bears the burden of establishing harm.32

5 IV. Analysis

6 A. Symptom Reports: Plaintiff establishes consequential error.

7 Plaintiff argues the ALJ failed to provide valid reasons for rejecting her

8 symptom reports. When examining a claimant’s symptoms, the ALJ utilizes a two-

9 step inquiry. “First, the ALJ must determine whether there is objective medical

10 evidence of an underlying impairment which could reasonably be expected to

11 produce the pain or other symptoms alleged.”33 Second, “[i]f the claimant meets the

12 first test and there is no evidence of malingering, the ALJ can only reject the

13 claimant’s testimony about the severity of the symptoms if [the ALJ] gives ‘specific,

386 (8th Cir. 1998) (“An ALJ’s failure to cite specific evidence does not indicate that

such evidence was not considered[.]”).

30 Molina, 674 F.3d at 1111.

31 Id. at 1115 (cleaned up).

32 Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009).

33 Molina, 674 F.3d at 1112.

1 clear and convincing reasons’ for the rejection.”34 General findings are insufficient;

2 rather, the ALJ must identify what symptom claims are being discounted and what

3 evidence undermines these claims.35 “The clear and convincing standard is the

4 most demanding required in Social Security cases.”36 Therefore, if an ALJ does not

5 articulate specific, clear, and convincing reasons to reject a claimant’s symptoms,

6 the corresponding limitations must be included in the RFC.37

7 Factors to be considered in evaluating the intensity, persistence, and

8 limiting effects of a claimant’s symptoms include: 1) daily activities; 2) the location,

9 duration, frequency, and intensity of pain or other symptoms; 3) factors that

10 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and

11 side effects of any medication the claimant takes or has taken to alleviate pain or

12 other symptoms; 5) treatment, other than medication, the claimant receives or has

13 received for relief of pain or other symptoms; 6) any non-treatment measures the

34 Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting Lingenfelter, 504

F.3d at 1036).

35 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995), and Thomas v.

Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently

explain why he discounted claimant’s symptom claims)).

36 Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm’r

of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).

37 Lingenfelter, 504 F.3d at 1035.

1 claimant uses or has used to relieve pain or other symptoms; and 7) any other

2 factors concerning the claimant’s functional limitations and restrictions due to pain

3 or other symptoms.38 The ALJ is instructed to “consider all of the evidence in an

4 individual’s record” to “determine how symptoms limit ability to perform work-

5 related activities.”39

6 At the hearing, Plaintiff testified:

7 • she has constant pain in her low back with her left side worse than

8 her right side, weakness in her left leg, and some numbness in her left

9 foot and other areas, though her last of four back surgeries helped

10 relieve some of the radiating pain down her left leg.

11 • she drags her left foot a bit, limps if she is in a lot of pain, avoids

12 bending over, can walk and/or stand for about 30 minutes, and has

13 knee pain if she walks upstairs.

14 • she has lifting limitations, and bowel and bladder incontinence.

15 • sitting and standing cause aggravated pain, so she shifts positions

16 often.

17 • she cries easily, loses interest in doing things, has not done arts and

18 crafts in about four months, has some sensory hallucinations, and has

19 trouble remembering names, dates, and faces.

38 SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. §§ 404.1529(c), 416.929(c).

39 SSR 16-3p, 2016 WL 1119029, at *2.

1 • she has anxiety and trouble sleeping due to chronic nightmares and

2 pain.

3 • she has more physically “bad days” than “good days,” and when she

4 has a good day, she uses that day to get laundry, other chores, and

5 errands done.40

6 The ALJ found Plaintiff’s statements concerning the intensity, persistence,

7 and limiting effects of her medically determinable impairments inconsistent with

8 the medical evidence and other evidence, including the longitudinal objective

9 medical evidence, her activities, and her weak work history.41

10 1. Objective Medical Evidence

11 Objective medical evidence is a relevant factor for the ALJ to consider when

12 assessing a claimant’s symptoms, however, the ALJ cannot discount symptom

13 reports solely because they are not fully corroborated by the objective medical

14 evidence.42 “Objective medical evidence” means signs, laboratory findings, or

15 both.43 In turn, “signs” is defined as:

16 one or more anatomical, physiological, or psychological abnormalities

that can be observed, apart from [the claimant’s] statements

40 AR 47–64

41 AR 20–22.

42 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).

43 20 C.F.R. §§ 404.1502(f), 416.902(k).

1 (symptoms). Signs must be shown by medically clinical diagnostic

techniques.44

Evidence obtained from the “application of a medically acceptable clinical

diagnostic technique, such as evidence of reduced joint motion, muscle spasm,

sensory deficits, or motor disruption” is considered objective medical evidence.45

The ALJ can also consider if the symptoms and signs improved with treatment.46

Here, the ALJ found Plaintiff’s allegations were inconsistent with the

unremarkable longitudinal objective medical evidence “outside perioperative

periods (i.e., shortly before and after the claimant’s two surgeries in November

2016 and June 2017)” and with her treatment, which was “effective for pain.”47 As

is discussed below in the Listings section, the ALJ’s analysis fails to show that he

considered the objective signs in their full diagnostic context.48 For instance, even

44 Id. §§ 404.1502(g), 416.902(l).

45 3 Soc. Sec. Law & Prac. § 36:26, Consideration of objective medical evidence

(2019).

46 20 C.F.R. §§ 404.1529(c)(3), 416.913(c)(3); Morgan v. Comm’r of Soc. Sec. Admin.,

169 F.3d 595, 599–600 (9th Cir. 1999).

47 AR 21–22.

48 See Ghanim, 763 F.3d at 1164; Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir.

1984) (cleaned up) (“Although it is within the power of the Secretary to make

findings concerning the credibility of a witness . . . , he cannot reach a conclusion

1 after Plaintiff’s fourth lumbar surgery in June 2017, she experienced loss of

2 strength in her left hip, reduced range of motion in her lumbar back, and chronic

3 pain. Although her symptoms waned with physical therapy and spinal injections,

4 substantial evidence reflects that treatment did not effectively treat Plaintiff’s

5 pain. By not fully considering the full diagnostic picture, the ALJ erred.

6 2. Activities of Daily Living

7 The ALJ also found that Plaintiff “remained quite active, in contrast to her

8 testimony.”49 If a claimant can spend a substantial part of the day engaged in

9 pursuits involving the performance of exertional or non-exertional functions, the

10 ALJ may find these activities inconsistent with the reported disabling symptoms.50

11 However, “disability claimants should not be penalized for attempting to lead

12 normal lives in the face of their limitations.”51 Moreover, “[t]he Social Security Act

13 does not require that claimants be utterly incapacitated to be eligible for benefits,

14 and many home activities may not be easily transferable to a work environment

15 where it might be impossible to rest periodically or take medication.”52 For these

first, and then attempt to justify it by ignoring competent evidence in the record

that suggests an opposite result.”).

49 AR 21.

50 Molina, 674 F.3d at 1113.

51 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (cleaned up).

52 Smolen v. Chater, 80 F.3d 1273, 1287 n.7 (9th Cir. 1996).

1 reasons, activities of daily living bear on a claimant’s symptom reports only if the

2 level of activity is inconsistent with the individual’s claimed limitations.53

3 Here, the ALJ highlighted that Plaintiff:

4 • reported on the function report “doing household chores, running

5 errands, working on hobbies, caring for a pet, making her own meals,

6 washing dishes, dusting, doing laundry, taking short walks, going out

7 alone, driving, shopping in stores, managing financial account [sic],

8 doing arts and crafts, and watching movies.”

9 • reported to medical providers that “on various occasions that she goes

10 camping, has been very active, is doing very physical ‘forging’ three

11 times a week, has been caring for a wheelchair-bound father, has

12 been doing a lot of gardening, went on a road trip and camped, and is

13 able to do chores for two hours without resting.”54

14 The ALJ fails to clearly explain why these activities from the function report

15 are convincingly inconsistent with Plaintiff’s reported limitations. In the function

16 report, Plaintiff also mentions that her daily activity level depends on her pain

17 level, and that she only does about 2–3 activities a day before she gets tired or her

18 pain gets too high, and that if she does a hobby, she only does an art or craft project

53 Reddick, 157 F.3d at 722.

54 AR 20–21 (revised to accurately reflect “forging” rather than “foraging”).

1 for 30 minutes.55 When Plaintiff’s function-report statements are considered in

2 their context, they are consistent with her symptom testimony. Moreover, the

3 Ninth Circuit has “repeatedly asserted that the mere fact that a plaintiff has

4 carried on certain daily activities, such as grocery shopping, driving a car, or

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

6 her overall disability.”56

7 As to the activities the ALJ highlighted from the medical reports, the ALJ

8 also fails to clearly explain why these activities are convincingly inconsistent with

9 Plaintiff’s reported limitations. First, while camping can be a strenuous activity on

10 the body, Plaintiff also reported to her medical providers that the camping trips

11 were physically challenging for her, and several providers noted that Plaintiff was

12 indeed fatigued and physically impacted by the camping trips. 57 Moreover,

55 AR 265–72.

56 Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (Ms. Vertigan could

grocery shop without assistance, walk approximately an hour in the malls, play

cards, swim, watch television, and read, but these activities did not consume a

substantial part of her day and so did not detract from her credibility).

57 AR 457 (Sept. 2015: “appeared to be more fatigued even at beginning of session,”

following a four-day camping trip); AR 1061–62 (July 2018: fatigued during

physical therapy session after returning from several night camping trip); AR 30

1 Plaintiff’s “camping” transitioned to staying in hotel rooms. Thus, the longitudinal

2 record reflects that, while Plaintiff went camping a couple times a year with

3 friends, the camping trips caused Plaintiff lumbar pain, which is consistent with

4 her reports of increased pain with exertion.

5 The ALJ also highlighted that Plaintiff reported to medical providers that

6 she had been “very active.”58 The ALJ selectively cited “active” references out of the

7 medical records without considering their context. For instance, the ALJ

8 discounted Plaintiff’s reported symptoms because it was noted in a September 2015

9 treatment record that Plaintiff “also states that she is able to participate in more

10 activity without rest and is able to tolerate 2-3 hours of activity at times.”59 Yet,

11 the record also provides: “[patient] appeared to be more fatigued today even at

12 beginning of session.” And a month later, a medical record stated that Plaintiff had

13 marked tenderness over the sacroiliac joints, sacral midline, moderately reduced

14 flexion, and a non-antalgic gait.60 Moreover, Plaintiff’s lumbar conditions declined,

15 and she had two subsequent lumbar surgeries in November 2016 and June 2017 to

(testifying that her camping trip involved staying in a motel room and that it

resulted in her being “laid up for three days” after the trip).

58 AR 21 (citing AR 1031 (Patient “went camping 2 times since our last visit. She

didn’t do very well [with her diet] during that time, but was very active”)).

59 AR 457.

60 AR 447.

1 help address her degenerative disc disease at L3-4, L4-5, and L5-S1, impingement

2 of nerve roots, neural foraminal stenosis, and severe spinal canal stenosis.61

3 The other “very active” comment in a May 2018 medical record that the ALJ

4 relied on must be read in its context as well. Earlier that month, Plaintiff began

5 pre-bariatric surgery preparation. To prepare for bariatric surgery, Plaintiff was

6 recommended to increase her activity, such as by walking her dog, using a

7 recumbent bike, and performing at home cardio four times a week and strength

8 training three times a week, as she was able, to prepare for bariatric surgery.62

9 Consistent with this recommendation, Plaintiff tried forging/blacksmithing.63

10 However, Plaintiff discontinued forging because it was physically challenging on

11 her back. Similarly, Plaintiff reported to her treatment provider that she had

12 increased low back pain resulting from gardening on one occasion.64 And during

13 this pre-bariatric phase, physical therapy records indicate that Plaintiff presented:

14 with limited activity tolerance, minor lower extremity strength

deficits, and low back pain that impacts [her] ability to complete daily

15 mobility tasks and prevents her from exercising with goal of weight

loss . . . Will work towards patient’s activity tolerance while

16 maintaining low levels of low back pain to meet patient’s goal of

weight loss in preparation for bariatric surgery.”65

61 AR 502–04, 570–71, 580–81, 745–46, 946–47.

62 AR 1023–24.

63 AR 1039.

64 AR 1068.

65 AR 1030.

Moreover, after three months of approximately weekly physical therapy sessions,

Plaintiff was only able to average a speed of 80 steps per minute on the Nu-step

(recumbent bike with bilateral upper and lower extremities), level 1, traveling a

distance of .88 miles for 20 minutes. And several months later in April 2019, a

treatment note indicates that Plaintiff exhibited abnormal muscle tone in her left

hip flexor and decreased range of motion in her right and left SI joints, along with

tenderness.66 Moreover, when a claimant engages in activities for therapeutic

reasons, it does not necessarily mean that she can engage in similar activity for a

longer period given the pain involved.67

The ALJ also highlighted that Plaintiff cared for her wheelchair-bound

father. However, Plaintiff’s “care” for her father—who was able to independently

ambulate in his wheelchair, drive, and was employed as an engineer—included

making dinner about three times a week.68 There is insufficient evidence to

support a finding that Plaintiff’s “care” for her father, either by itself or in

conjunction with her other activities, is substantial enough to constitute a clear

and convincing reason to discount Plaintiff’s reported symptoms.

66 AR 1114.

67 Vertigan, 260 F.3d at 1050.

68 AR 48–49, 586, 1027.

1 In summary, in order for Plaintiff’s cited activities to be deemed “high-

2 functioning activities of daily living” constituting a clear and convincing reason to

3 discount Plaintiff’s symptoms, the ALJ needed to articulate this finding more

4 meaningfully. The ALJ fails to explain how substantial evidence supports his

5 finding that the cited activities, which can be achieved in relatively short periods of

6 time or which were attempted for only a few weeks before being discontinued due

7 to pain, contradict Plaintiff’s symptom reports.69

8 3. Weak Work History

9 The ALJ also found Plaintiff “has a weak work history, yet with a

10 demonstrated ability to sustain substantial gainful activity in the past.”70 Evidence

11 of a poor work history that suggests a claimant is not motivated to work is a

12 permissible reason to discount a claimant’s claim that she is unable to work.71 But

13 before discounting the claimant’s reported symptoms due to a poor work history,

14 the ALJ is to consider other factors that could have contributed to the poor work

15 history.72 Here, the ALJ’s brief statement is not a clear and convincing reason

16 supported by substantial evidence to discount Plaintiff’s reported symptoms. The

17 record reflects that from about 2010 to the July 2013 alleged disability date (from

69 See Molina, 674 F.3d at 1112–13.

70 AR 21.

71 20 C.F.R. §§ 404.1529, 416.929 (work record); Thomas, 278 F.3d at 959.

72 Cherry v. Apfel, 5 Fed. App’x 500, 503 (7th Cir. 2001) (unpublished).

1 about the ages of 24–27), Plaintiff engaged in substantial gainful activity. Before

2 that, Plaintiff attended college73 and had lumbar discectomies at the ages of 17 and

3 23. Given Plaintiff’s college attendance and need for—and recovery from—lumbar

4 surgery, the ALJ’s brief finding that Plaintiff had a poor work history is not a clear

5 and convincing reason, supported by substantial evidence, to discount Plaintiff’s

6 symptoms.

7 B. Step Three (Listings): Plaintiff establishes consequential error.

8 Plaintiff contends the ALJ erred by discounting Dr. Smiley’s opinion that

9 Plaintiff’s impairments medically equaled Listing 1.04A, and thereby finding that

10 Plaintiff did not satisfy Listing 1.04A, singly or in combination.

11 1. Listing 1.04

12 Listing 1.04 applies to disorders of the spine, including degenerative disc

13 disease, resulting in compromise of a nerve root or the spinal cord, along with, for

14 purposes of Listing 1.04A:

15 Evidence of nerve root compression characterized by neuro-anatomic

distribution of pain, limitation of motion of the spine, motor loss

16 (atrophy with associated muscle weakness or muscle weakness)

accompanied by sensory or reflex loss and, if there is involvement of

17 the lower back, positive straight-leg raising test (sitting and supine).74

73 AR 248.

74 20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 1.04. The parties agree that the 2021

revised regulations to the listings’ spinal disorders do not apply. Therefore, there is

no presumption that the medical sources performed the straight-leg raising test in

If a claimant meets all of the listing criteria, she is considered disabled at

step three. A claimant who does not meet the listing criteria may still be

considered disabled at step three if her impairments medically equal a listed

impairment.75 Medical equivalence will be found if the medical findings are at least

of equal medical significance to the required criteria.76 Medical equivalence

depends on all evidence in the record about the impairment and its effects on the

claimant, except pain, age, education, and work experience are not considered.77

both sitting and supine positions. See

https://www.ssa.gov/disability/professionals/bluebook/1.00-Musculoskeletal-

Adult.htm (last accessed 9/17/21); compare Yanchar v. Berryhill, 720 Fed. App’x

367 (9th Cir. Dec. 22, 2017) (affirming ALJ’s finding that claimant failed to prove

both supine and sitting tests).

75 See Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (requiring a claimant to show

that the impairment meets (or medically equals) all of the specified medical

criteria, not just some of the criteria).

76 20 C.F.R. §§ 404.1526(a)–(b), 404.1526(d)(3); Marcia v. Sullivan, 900 F.2d 172,

175 (9th Cir. 1990).

77 20 C.F.R. §§ 404.1526(b)–(c), 404.1526(d)(3).

1 2. Dr. Smiley’s Listings Opinion

2 Dr. Smiley reviewed the medical evidence and testified during the May 2019

3 administrative hearing.78 Dr. Smiley opined that, while Plaintiff does not meet

4 listing 1.04, she equals listing 1.04A because of her chronic, incapacitating pain

5 due to her longstanding back conditions, as impacted by her obesity.

6 3. Analytical Standard

7 The ALJ is obligated to consider the relevant evidence to determine whether

8 a claimant’s impairments meet or equal one of the specified impairments set forth

9 in the listings.79 Generally, a “boilerplate finding is insufficient to support a

10 conclusion that a claimant’s impairment does not [meet or equal a listing].”80

11 However, the ALJ need not recite his step-three reasons in the listings portion of

12 the decision so long as findings—and evidence relied thereon—to support the ALJ’s

13 listing decision are set forth in the entire decision.81 Moreover, a boilerplate finding

14 may be appropriate where a claimant fails to set forth any evidence for the ALJ to

15 conclude an impairment could meet or equal a listing.82

78 AR 37–45.

79 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); Lewis v. Apfel, 236 F.3d 503,

512 (9th Cir. 2001).

80 Lewis, 236 F.3d at 512; Marcia, 900 F.2d at 176.

81 Lewis, 236 F.3d at 513.

82 Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990).

1 4. ALJ’s Findings

2 Under the listing analysis, the ALJ stated Plaintiff’s:

3 degenerative disc disease (lumbar) does not meet the criteria of listing

1.04, Disorders of the Spine, as there is no evidence of nerve root

4 compression, limitation of motion of the spine, and motor loss (atrophy

with associated muscle weakness or muscle weakness) accompanied

5 by sensory or reflex loss and positive straight leg raising tests (sitting

and supine).83

In other portions of his decision, the ALJ summarized various medical records

discussing Plaintiff’s imaging for her back with reference to whether she had

tenderness, weakness, pain, or limitation of motion. The ALJ found the

“longitudinal objective medical evidence to be unremarkable outside peri-operative

periods (i.e., shortly before and after the claimant’s two surgeries in November

2016 and June 2017). Outside these periods, the claimant has generally been found

to have normal gait, strength, and sensation.”84 The ALJ also explained why he

gave little weight to Dr. Smiley’s opinion that Plaintiff equaled listing 1.04A,

emphasizing that pain is not an adequate basis for a listings opinion.85

5. Analysis

Plaintiff contends she equals Listing 1.04A. She relies on the following

evidence, which supports most of the Listing 1.04A criteria:

83 AR 19.

84 AR 21.

85 AR 22.

1 1) multiple MRIs showing nerve root compression86;

2 2) medical records showing limited range of motion of her spine87;

3 3) medical records showing motor loss in the form of muscle weakness88;

86 AR 361, 504, 589.

87 AR 487, 450 (May 2015: lumbar and lateral flexion restricted, and decreased

range of lumbar motion); AR 422 (Sept. 2016: decreased lumbar motion and

tenderness); AR 594 (March 2017: decreased lumbar motion with extension,

leaning forward, and to the left); AR 587 (May 2017: lumbar flexion 7/10, lumbar

extension 6–7/10, side-bending decreased, and rotation at 50%); AR 589 (May 2017:

significant decreased lumbar motion); AR 1028 (May 2018: decreased lumbar

flexion, extension, and rotation); AR 1114 (April 2019: decreased lumbar motion).

88 AR 487 (May 2015: reduced gluteus Medius, hip, and knee strength); AR 462

(Aug. 2015: reduced hip extension and external rotation strength); AR 324 (Nov.

2015: left foot toe movement decreased); AR 543, 547 (Nov. 2016: weakness of left

EHL and dorsiflexion, and plantar flexion); AR 594 (March 2017: decreased left hip

strength); AR 587 (May 2017: reduced strength in hips with flexion and abduction

and knee flexion); AR 589 (May 2017: decreased left hip strength); AR 1028 (May

2018: decreased gluteus and quadriceps strength); AR 1114 (April 2019: weak left

leg and abnormal muscle tone in left hip flexor).

1 4) medical records reflecting sensory and reflex loss89; and

2 5) positive straight leg raising (SLR) tests.90

3 However, Plaintiff concedes the record does not reflect that the positive SLR tests

4 were conducted in both supine and sitting positions. Therefore, although she

5 concedes she does not meet Listing 1.04A, she argues the ALJ erred by failing to

6 find she equals Listing 1.04A.

7 Because the ALJ offered only a boilerplate Listing 1.04 denial, the Court is

8 unable to meaningfully evaluate whether the ALJ found that Plaintiff met some of

9 the Listing 1.04A criteria, or none at all. But the ALJ’s findings in other portions of

10 his opinion, namely the portion of the opinion wherein he gave little weight to Dr.

89 AR 487 (May 2015: slightly diminished L S2 dermatome sensory); AR 422 (Sept.

2016: sensory deficit, left, L5 dermatome); AR 556 (Oct. 2016: sensation is slightly

diminished over the left L5 dermatomal distribution slightly on the left side);

AR 543 (Nov. 2016: sensation diminished left L5 and S1 distribution); AR 594

(March 2017: sensory deficit in inner left thigh, inner left calf, and outer left calf);

AR 589 (May 2017: sensory deficit in the left buttock perianally).

90 AR 487 (May 2015: bilateral SLR); AR 543, 547 (Nov. 2016: positive left-sided

SLR starting at 15 degrees); AR 556 (positive SLR with ankle dorsiflexion starting

at about 15 degrees and positive for back pain on the right, starting at about 75

degrees); AR 589 (May 2017: positive left SLR).

1 Smiley’s opinion that Plaintiff equaled Listing 1.04A, allows the Court to review

2 findings that guided the ALJ’s listings denial.

3 The ALJ discounted Dr. Smiley’s listing opinion because pain cannot serve

4 as the basis for a listings’ finding, Dr. Smiley’s review of the record was not

5 thorough, his opinion was not well-reasoned, and his opinion was inconsistent with

6 the longitudinal record showing medical improvement and Plaintiff’s activities.91

7 First, the ALJ discounted Dr. Smiley’s listing 1.04A opinion because a

8 “strictly subjective factor like pain is not adequate as the sole basis for an opinion

9 that a claimant equals a listing.”92 The ALJ is correct: when assessing whether a

10 listing is satisfied, a claimant’s allegations of pain or other symptoms cannot

11 replace a required sign or laboratory finding for listing criteria.93 Accordingly, the

12 ALJ legitimately discounted Dr. Smiley’s opinion that Plaintiff equaled listing

13 1.04A because it was based on Dr. Smiley’s determination that Plaintiff has

14 incapacitating radiculitis pain. However, the ALJ still had a responsibility, on this

15 record which contains evidence supporting all of the 1.04A criteria, absent

91 AR 22. Dr. Smiley’s listings’ opinion is contradicted by the reviewing opinion of

Dr. Hale, which is supported by independent evidence. AR 105–14, 121–28. For

that reason, the ALJ was permitted to reject Dr. Smiley’s opinion for “specific and

legitimate reasons” supported by substantial evidence. See Lester, 81 F.3d at 830.

92 AR 22.

93 20 C.F.R. §§ 404.1529(d)(3), 416.929(d)(3).

1 identifying whether the positive SLR tests were conducted in both the sitting and

2 supine positions, to provide sufficient analysis to allow the Court to meaningfully

3 review the Listing 1.04A denial. As discussed below, the Court finds the ALJ’s

4 analysis deficient, even when considering the other reasons offered by the ALJ to

5 discount Dr. Smiley’s opinion.

6 The ALJ also discounted Dr. Smiley’s opinion because his review of the

7 record was less thorough. Although an ALJ may give more weight to an opinion

8 that is based on more record review and supporting evidence,94 the ALJ failed to

9 meaningfully explain why Dr. Smiley’s review of the record was not thorough. The

10 ALJ mentioned Dr. Smiley stated that he did not notice Plaintiff’s own reports of

11 her pain on a 10-point scale in the record, as indicated in the following hearing

12 exchange:

13 [ALJ] - Okay. You're talking about incapacitating pain. I would

imagine she's reporting her pain on the ten-point pain scale in the

14 records. Where do you see her rate that?

[Dr. Smiley] - You know, it's funny, I didn't.

94 See 20 C.F.R. § 404.1527(c)(6) (specifying that the extent to which a medical

source is “familiar with the other information in [the claimant’s] case record” is

relevant in assessing the weight to give that opinion); Lingenfelter, 504 F.3d at

1042 (recognizing the ALJ is to consider the consistency of the medical opinion

with the record as a whole and assess the amount of relevant evidence that

supports the opinion).

1 [ALJ] - Okay. Let me move on to another issue and that's the

references to some of her activities.95

The ALJ then found Dr. Smiley’s failure to see Plaintiff’s pain reports inconsistent

with Exhibit 18F, which contains numerous reports of 5/10 pain or less. The Court

assumes this apparent failure by Dr. Smiley to see these pain reports serves as the

basis for the ALJ’s finding that Dr. Smiley’s review of the record was unthorough.

Yet, when Dr. Smiley’s testimony is viewed in its entirety, it is clear that he read

Exhibit 18F. For instance, during his testimony about Plaintiff’s incontinence, Dr.

Smiley referenced an October 2017 medical record in Exhibit 18F, and he testified

that he reviewed the physical therapy records (which contain Plaintiff’s pain

reports) in Exhibit 18F.96 If the ALJ was concerned about whether Dr. Smiley had

read Exhibit 18F, the ALJ should have followed-up with Dr. Smiley on this point

before discounting his opinion for this reason. Moreover, in this record, there are

only two physicians who opined as to Plaintiff’s physical abilities: Dr. Hale, who

offered his reviewing opinion in August 2017, and Dr. Smiley, who testified in May

2019. Dr. Smiley had the benefit of almost two additional years of medical records

compared to Dr. Hale, who did not have an opportunity to review Exhibits 17F or

18F. On this record, the ALJ’s decision to discount Dr. Smiley’s opinion because his

95 AR 42.

96 See AR 1007–09, 1025–68.

1 review of the record was not thorough is not a legitimate reason supported by

2 substantial evidence.

3 Third, the ALJ discounted Dr. Smiley’s listing opinion because it was not

4 well reasoned. An ALJ may permissibly reject opinions that do not offer any

5 explanation for their limitations and are inadequately supported by medical

6 findings.97 Here, if the ALJ needed further explanation for Dr. Smiley’s listing

7 opinion, Dr. Smiley was available for cross-examination. Moreover, the ALJ gave

8 more weight to Dr. Hale’s reviewing opinion, which was supported with the

9 following general statements: “evidence in file supports light RFC as above” and

10 “[a]ll symptoms and the extent to which those symptoms could reasonably be

11 accepted as consistent with the objective medical evidence [and] other evidence

12 were determined not to rise to the level in intensity, persistence, or limiting effects

13 which would produce workplace restrictions beyond those identified by the

14 objective finding.”98 On this record, the ALJ’s decision to discount Dr. Smiley’s

15 opinion because his opinion was not well reasoned is not a legitimate reason

16 supported by substantial evidence.

97 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009)

(recognizing that a medical opinion may be rejected if it is conclusory or

inadequately supported); Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996).

98 AR 122–24.

1 Fourth, the ALJ discounted Dr. Smiley’s opinion because it was “inconsistent

2 with the longitudinal record showing medical improvement with surgeries,

3 physical therapy, and injection therapy, all of which were effective for pain.”99

4 Whether a medical opinion is consistent with the longitudinal record is a factor for

5 the ALJ to consider.100 The ALJ’s finding that Plaintiff’s pain improved with

6 surgeries, physical therapy, and injection therapy is supported by substantial

7 evidence but not to the extent that these treatments were effective for pain. The

8 longitudinal record reflects that, although Plaintiff’s lumbar pain and limitations

9 waned with treatment, they also continued to wax. For instance, even after

10 Plaintiff’s fourth lumbar surgery in June 2017, she experienced pain in her lower

11 back and decreased lumbar function: see 1) a July 2018 physical therapy note

12 reflects that Plaintiff had 6/10 pain to the low back and that the therapist would

13 “continue to progress activity; however, barriers may exist, including chronic pain

14 to back and knees,”101 and 2) an April 2019 treatment note reflects that she had

15 decreased range of lumbar motion and tenderness in her right and left SI joints,

16 she exhibited abnormal muscle tone in her left hip flexor, and a weak left leg.102 On

99 AR 22.

100 See Lingenfelter, 504 F.3d at 1042.

101 AR 1058.

102 AR 1114. See also AR 1025-29 (May 2018: testing reflects that Plaintiff (in her

young 30s) was able to perform 13 “stands” in 30 seconds, consistent with a women

1 this record, the ALJ’s decision to discount Dr. Smiley’s opinion because the

2 longitudinal record showed medical improvement with treatment is not a

3 legitimate reason supported by substantial evidence because the evidence as a

4 whole reflects that Plaintiff’s pain and limitations continued to wax. The ALJ’s

5 analysis fails to reflect that he considered the complete diagnostic picture.103

6 Finally, the ALJ discounted Dr. Smiley’s opinion because it was inconsistent

7 with Plaintiff’s activity level that included camping, gardening, assisting her

8 wheelchair-bound father, and forging. An ALJ may discount a medical opinion that

9 is inconsistent with the claimant’s level of activity or if claimant’s activities are

10 easily transferable to the workplace environment, while recognizing that “many

11 home activities are not easily transferable to what may be the more grueling

who was 60-64 years old, and that she walked 481.9 meters in 6 minutes,

consistent with a woman in her late 60s); AR 1066 (Aug. 2018: “[L]imited activity

tolerance, minor lower extremity strength deficits, and low back pain that prevents

her from exercising with goal of weight loss.”); AR 1085-92 (Jan. 2019: noting that

Plaintiff was distractible, depressed, anxious, frustrated, and tearful).

103 See Ghanim, 763 F.3d at 1164 (emphasizing that treatment records must be

viewed considering the overall diagnostic record); Gallant, 753 F.2d at 1456

(disallowing the ALJ from cherry-picking evidence to support a conclusion that

contradicts the overall diagnostic record).

1 environment of the workplace.”104 As discussed above, camping, gardening, and

2 forging caused Plaintiff pain, reduced range of motion, tenderness, and/or fatigue,

3 causing Plaintiff to cease these activities. And Plaintiff’s care of her father merely

4 involved cooking dinner three times a week. The ALJ’s decision to discount Dr.

5 Smiley’s opinion because it was inconsistent with Plaintiff’s activities is not a

6 legitimate reason supported by substantial evidence.

7 6. Conclusion

8 All but one of the ALJ’s reasons for discounting Dr. Smiley’s listings’ opinion

9 are not legitimate reasons supported by substantial evidence. Although it was

10 legitimate for the ALJ to discount Dr. Smiley’s listings opinion because it could not

11 be based simply on Plaintiff’s pain, this record contains medical evidence that

12 Plaintiff had degenerative disc disease, which compromised a nerve root that

13 caused neuro-anatomic distribution of pain, limitation of motion of the spine, motor

14 loss accompanied by sensory or reflex loss, and positive straight leg raising tests.105

104 Rollins, 261 F.3d at 856; Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989).

105 See also AR 570, 746 (Nov. 2016: lumbar radiculopathy); AR 603 (Dec. 2016:

same); AR 870 (Nov. 2017: “[P]rimary incapacitating pain complaint of low back

pain whose history of present illness and physical exam is consistent with Lumbar

Radiculopathy as their primary pain generator. Review of recent imaging

correlates with these diagnoses.”).

1 Because the ALJ failed to meaningfully articulate why Plaintiff did not medically

2 equal Listing 1.04A, the ALJ erred.

3 This error is consequential. On remand, the ALJ must meaningfully explain

4 the basis for his listing decision.

5 C. Medical Opinions: Plaintiff establishes consequential error.

6 Plaintiff argues the ALJ erred by giving little weight to Dr. Smiley’s opinion

7 that Plaintiff was unable to sustain even sedentary work.

8 1. Standard106

9 The weighing of medical opinions is dependent upon the nature of the

10 medical relationship, i.e., whether the medical provider is a treating physician, an

11 examining physician, or a reviewing physician.107 Generally, more weight is given

12 to the opinion of a treating physician than to the opinion of an examining

13 physician, and the opinions of both treating and examining physicians are given

14 more weight than the opinion of a reviewing physician.108

106 20 C.F.R. §§ 404.1520c, 416.920c. See Revisions to Rules Regarding the

Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (2017).

107 Garrison, 759 F.3d at 1012.

108 Id.; Lester, 81 F.3d at 830–31.

1 2. Dr. Smiley

2 As mentioned above, Dr. Smiley reviewed the medical evidence and testified

3 during the administrative hearing.109 In addition to opining that Plaintiff equaled

4 listing 1.04A, Dr. Smiley opined that Plaintiff cannot “function in the workplace on

5 a regular basis” at even a sedentary level.110

6 Dr. Smiley’s opinion is contradicted by the reviewing opinion of Dr. Hale,

7 which is supported by independent evidence.111 For that reason, the ALJ was

8 permitted to reject Dr. Smiley’s opinion for “specific and legitimate reasons”

9 supported by substantial evidence.112

10 The ALJ discounted Dr. Smiley’s listing opinion for the reasons explained

11 above; however, the ALJ did not separately articulate why he discounted Dr.

12 Smiley’s opinion that Plaintiff could not sustain full time work. Although the ALJ

13 properly discounted Dr. Smiley’s listing opinion because pain alone is not an

14 adequate basis for equaling a listing, chronic pain must be considered by the ALJ

109 AR 37–45.

110 AR 41–42.

111 AR 105–14, 121–28.

112 Lester, 81 F.3d at 830.

1 when assessing a claimant’s RFC for sustained, full-time work at step five.113

2 Therefore, by not addressing Dr. Smiley’s opinion that Plaintiff could not sustain

3 full-time work, the ALJ erred at step five.

4 D. Remand: further proceedings are needed.

5 Plaintiff submits a remand for payment of benefits is warranted because Dr.

6 Smiley opined that she equaled a listing.

7 The decision whether to remand a case for additional evidence, or simply to

8 award benefits, is within the Court’s discretion.114 Remand for further proceedings

9 is the usual course, absent clear evidence from the record that a claimant is

10 entitled to benefits.115 For instance, where “there are outstanding issues that must

11 be resolved before a determination can be made, or if further administrative

12 proceedings would be useful, a remand is necessary.”116

113 20 C.F.R. §§ 404.1545(e), 416.945(e); see also Lester, 81 F.3d at 829–30 (requiring

the ALJ to consider the impact of the claimant’s chronic pain when assessing the

claimant’s residual functional capacity).

114 See Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (citing Stone v.

Heckler, 761 F.2d 530 (9th Cir. 1985)).

115 Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017); Benecke v. Barnhart, 379

F.3d 587, 595 (9th Cir. 2004) (“[T]he proper course, except in rare circumstances, is

to remand to the agency for additional investigation or explanation.”).

116 Leon, 880 F.3d at 1047.

1 Remand is necessary because disability is not clearly established. The ALJ’s

2 decision to discount Dr. Smiley’s listing opinion is supported by substantial

3 evidence because Dr. Smiley’s equivalency opinion was based on Plaintiff’s pain.

4 Further proceedings are necessary to consider whether Plaintiff equals Listing

5 1.04A and, if not, whether Plaintiff can sustain full-time work.

6 On remand, the ALJ is to order a physical consultative examination to

7 assess Plaintiff’s sustained RFC. The consultative examiner must be given

8 sufficient medical records to allow for a longitudinal perspective.117 The ALJ is to

9 then reconsider the medical evidence, Plaintiff’s symptom reports, and reevaluate

10 the sequential process.

11 On remand, if the ALJ again discounts Plaintiff’s symptoms, the ALJ must

12 articulate clear and convincing reasons for doing so.118 General findings are

13 insufficient because the Court cannot affirm discounting Plaintiff’s symptoms for a

14 reason not articulated by the ALJ.119 The ALJ must identify what symptoms are

15 being discounted and what evidence undermines these symptoms.120

117 Because a consultative examination is ordered, the consultative examiner is to

append the records that the examiner reviewed to the report, or at a minimum

clearly identify the records reviewed.

118 Ghanim, 763 F.3d at 1163 (quoting Lingenfelter, 504 F.3d at 1036).

119 See Garrison, 759 F.3d at 1010.

120 Id.

V. Conclusion

Accordingly, IT IS HEREBY ORDERED:

1. The case caption is to be AMENDED consistent with footnote 2.

2. Plaintiffs Motion for Summary Judgment, ECF No. 19, is

GRANTED.

3. The Commissioner’s Motion for Summary Judgment, ECF No. 20, is

DENIED.

4, The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff

REVERSING and REMANDING the matter to the Commissioner of

Social Security for further proceedings pursuant to sentence four of 42

U.S.C. § 405(g).

5. The case shall be CLOSED.

IT ISSO ORDERED. The Clerk’s Office is directed to file this Order and

provide copies to all counsel.

DATED this 20* day of October 2021.

EDWARD F.SHEA

Senior United States District Judge

ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 36

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