Dixon v. Commissioner of Social Security

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UNITED STATES DISTRICT COURT

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WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

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8 PAUL D.,

9 Plaintiff, Case No. C24-5386-SKV

10 v. ORDER REVERSING THE

COMMISSIONER’S DECISION

11 COMMISSIONER OF SOCIAL SECURITY,

12 Defendant.

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14 Plaintiff seeks review of the denial of his application for Disability Insurance Benefits

15 (DIB). Having considered the ALJ’s decision, the administrative record (AR), and all

16 memoranda of record, the Court REVERSES the Commissioner’s final decision and

17 REMANDS the matter for further administrative proceedings under sentence four of 42 U.S.C. §

18 405(g).

19 BACKGROUND

20 Plaintiff was born in 1979, has a high school education, and has worked as a quality

21 control technician, radiology technician, driver, and electrician apprentice. AR 25. Plaintiff was

22 last gainfully employed in November 2018. AR 51.

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1 On November 16, 2021, Plaintiff applied for benefits, alleging disability as of January

2 2019. AR 17. Plaintiff’s applications were denied initially and on reconsideration, and Plaintiff

3 requested a hearing. AR 17. After the ALJ conducted a hearing on January 18, 2024, the ALJ

4 issued a decision finding Plaintiff not disabled. AR 17.

5 THE ALJ’S DECISION

6 Utilizing the five-step disability evaluation process,1 the ALJ found:

7 Step one: Plaintiff has not engaged in substantial gainful activity since January 1, 2019.

8 Step two: Plaintiff has the following severe impairments: mild lumbar degenerative disc

disease, ankylosing spondylosis, and fibromyalgia.

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Step three: These impairments do not meet or equal the requirements of a listed

10 impairment.2

11 Residual Functional Capacity: Plaintiff can perform light work, but can only stand and

walk two hours total in an eight-hour workday.

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Step four: Plaintiff cannot perform past relevant work.

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Step five: As there are jobs that exist in significant numbers in the national economy that

14 Plaintiff can perform, Plaintiff is not disabled.

15 AR 19, 22-23, 30.

16 The Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision the

17 Commissioner’s final decision. AR 1-3. Plaintiff appealed the final decision of the

18 Commissioner to this Court. Dkt. 4. The parties consented to proceed before the undersigned

19 Magistrate Judge. Dkt. 2.

20 LEGAL STANDARDS

21 Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of social

22 security benefits when the ALJ’s findings are based on harmful legal error or not supported by

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1 20 C.F.R. § 404.1520.

2 20 C.F.R. Part 404, Subpart P., App. 1.

1 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir.

2 2005). As a general principle, an ALJ’s error may be deemed harmless where it is

3 “inconsequential to the ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104,

4 1115 (9th Cir. 2012) (cited sources omitted). The Court looks to “the record as a whole to

5 determine whether the error alters the outcome of the case.” Id.

6 Substantial evidence is “more than a mere scintilla. It means - and means only - such

7 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

8 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (cleaned up); Magallanes v. Bowen, 881 F.2d

9 747, 750 (9th Cir. 1989). The ALJ is responsible for evaluating symptom testimony, resolving

10 conflicts in medical testimony, and resolving any other ambiguities that might exist. Andrews v.

11 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record

12 as a whole, it may neither reweigh the evidence nor substitute its judgment for that of the

13 Commissioner. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is

14 susceptible to more than one rational interpretation, it is the Commissioner’s conclusion that

15 must be upheld. Id.

16 DISCUSSION

17 Plaintiff argues the ALJ erred by discounting Plaintiff’s subjective symptom testimony,

18 in her assessment of the persuasiveness of the medical opinions, and in failing to explain how

19 she considered third-party testimony. Dkt. 9. The Commissioner argues the ALJ’s decision is

20 free of harmful legal error, supported by substantial evidence, and should be affirmed. Dkt. 11.

21 A. The ALJ Erred in Evaluating Plaintiff Testimony

22 The ALJ considered Plaintiff’s testimony and discounted it based on inconsistencies with

23 the medical record and his daily activities. AR 25-27. Absent evidence of malingering, an ALJ

1 is required to provide clear and convincing reasons to discount a claimant’s testimony. Burrell v.

2 Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014). This requires the ALJ to specify which

3 testimony is not credible and which evidence contradicts it. Laborin v. Berryhill, 867 F.3d 1151,

4 1155 (9th Cir. 2017). However, the ALJ is not required to believe every claim of disabling pain

5 or to analyze Plaintiff’s testimony line by line. Ahearn v. Saul, 988 F.3d 1111, 1116 (9th Cir.

6 2021); Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). “The standard isn’t whether our

7 court is convinced, but instead whether the ALJ’s rationale is clear enough that it has the power

8 to convince.” Smartt v. Kijakazi, 53 F.4th 489, 499 (9th Cir. 2022).

9 The ALJ found that Plaintiff’s testimony was not persuasive based on (1) inconsistency

10 with the overall medical record, (2) doctor’s notes showing symptoms improved with treatment,

11 and (3) Plaintiff’s activities contradicted his symptom testimony. AR 25.

12 Plaintiff argues that the ALJ erred in rejecting Plaintiff’s subjective symptom testimony

13 as she did not provide clear and convincing reasons for dismissing the symptoms related to

14 fibromyalgia, did not accurately represent the evidence related to Plaintiff’s ankylosing

15 spondylitis, unreasonably concluded that the record showed improvement of Plaintiff’s

16 impairments, and unreasonably concluded Plaintiff’s activities were not consistent with his

17 symptom testimony. Dkt. 9 at 2-10.

18 The objective evidence standard “requires that an ALJ cannot insist on clear medical

19 evidence to support each part of a claimant’s subjective testimony when there is no objective

20 testimony evincing otherwise.” Smartt, 53 F.4th at 498. That is, an ALJ may not demand

21 positive objective evidence supporting every allegation a claimant makes. But an ALJ may rely

22 on inconsistencies in the medical record and in statements to reject testimony. 20 C.F.R. §

23 404.1529(c)(4); Farlow v. Kijakazi, 53 F.4th 485, 489 (9th Cir. 2022); see also Eblen v. Saul,

1 811 F. App’x 417, 420 (9th Cir. 2020) (ALJ properly discounted testimony based on inconsistent

2 statements). Inconsistent medical evidence, evidence of improvement with treatment, and

3 evidence of minimal treatment are all valid reasons to reject a claimant’s allegation of disabling

4 limitations. See, e.g., Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017) (“evidence of

5 medical treatment successfully relieving symptoms can undermine a claim of disability.”);

6 Molina, 674 F.3d at 1113-14 (ALJ may rely on an unexplained or inadequately explained failure

7 to seek treatment); Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir.

8 2008) (“Contradiction with the medical record is a sufficient basis for rejecting the claimant’s

9 subjective testimony.”); 20 C.F.R. § 404.1529(c)(3)(“symptoms . . . which can reasonably be

10 accepted as consistent with the objective medical evidence and other evidence, will be taken into

11 account.”).

12 Plaintiff testified that his ankylosing spondylitis and fibromyalgia cause constant stiffness

13 and pain, and that sitting causes the pain to worsen when he stands or walks. AR 53-54. All

14 movements of his hips and shoulders cause extreme pain. AR 53. Either sitting or standing for

15 an extended period results in symptoms flaring to the point where he needs to lay down for an

16 extended period. AR 54-55. His medications are of limited effectiveness, cause dizziness,

17 tiredness, brain fog, and lower his immune system. AR 56. He has 12 to 15 symptom flareups a

18 month which leave him bedridden from pain. AR 64. These flareups impact his ability to sleep

19 which worsens his symptoms of fatigue. AR 67. On a typical day he sits with a heating pad for

20 twenty minutes before doing his daily stretching and finishing with a massage gun. AR 68.

21 The ALJ points to the lack of herniations or stenosis on imaging, and examinations

22 “showing a generally normal gait and no motor strength, sensory or reflex deficits or findings of

23 severely unstable gait” as undermining his claims of debilitating pain. AR 24. But

1 “examinations showing mostly normal results ‘are perfectly consistent with debilitating

2 fibromyalgia.’” Estrada v. Saul, 842 F. App’x 154, 155 (9th Cir. 2021) (quoting Revels v.

3 Berryhill, 874 F.3d 648, 666 (9th Cir. 2017)). Accordingly, after a claimant has established a

4 diagnosis of fibromyalgia, a longitudinal review of the record is required whenever possible. Id.

5 The record reflects that Plaintiff has consistently reported debilitating fibromyalgia flare

6 ups to his providers. AR 396 (“he had a flare up in which he had to sleep in bed all day and body

7 was extremely sensitive to touch”); see also AR 320, 2431, 2438, 2535, 2538, 2541, 2544, 2545.

8 He similarly consistently reported musculoskeletal pain throughout his body, as well as

9 accompanying fatigue. AR 2431-57, 2489-91, 2504-05, 2513, 2536, 2538, 2540, 2545, 2547,

10 2552, 2563-64, 2631, 2645, 2654-55, 2691-92, 2721, 2729. The portions of the record cited by

11 the ALJ do not contradict Plaintiff’s testimony about his pain related symptoms. Accordingly,

12 the ALJ erred in rejecting Plaintiff’s testimony for this reason.

13 As to Plaintiff’s ankylosing spondylitis symptoms, it is difficult if not impossible to

14 extricate those pain and fatigue symptoms which arise from his ankylosing spondylosis as

15 opposed to his severe lumbar degenerative disc disease and fibromyalgia. While the ALJ points

16 to evidence that Plaintiff’s ankylosing spondylitis is not severe enough to support his subjective

17 symptom testimony, this is not the standard. The ALJ must consider whether the symptom

18 testimony is contradicted when considering the combined effects of the impairments. See Smith

19 v. Colvin, 554 F. App’x 568, 569 (9th Cir. 2014) (citing Smolen v. Chater, 80 F.3d 1273, 1290

20 (9th Cir. 1996)) (holding that the ALJ erred where the assessed “RFC failed to take into account

21 the combined effect of the [claimant’s] severe mental and physical impairments”). Accordingly,

22 the ALJ erred in rejecting Plaintiff’s testimony for this reason.

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1 The ALJ points to evidence in the record that Plaintiff inconsistently reported

2 improvement from his medications. AR 24 (citing AR 1058 (“Enbrel improve[s] the symptoms

3 by 15 to 20% only. Humira was 0%. He notices some improvement but not as significant as he

4 expects.”); AR 2563 (“Previously had tried Enbrel and Humira without any benefit. Patient has

5 failed NSAIDs. Taking taltz from rheumatology and started a few weeks. Patient . . . not seeing

6 much improvement of symptoms yet.”)). The cited portion of the record does not contradict

7 Plaintiff’s testimony that he has not noticed improvement with medications. Additionally, the

8 social security administration recognizes that the symptoms of fibromyalgia wax and wane, and

9 that a person may have bad days and good days. Revels, 874 F.3d 648, 657 (9th Cir. 2017)

10 (citing SSR 12-2P). Accordingly, the ALJ erred in rejecting Plaintiff’s testimony for this reason.

11 The ALJ last references Doctor’s notes that Plaintiff goes to the gym regularly as

12 evidence that he has the capacity to work. AR 25. At the hearing Plaintiff testified that he

13 stretches every morning to alleviate symptoms. AR 68. In his disability appeal form Plaintiff

14 stated that it “takes a lot of mental preparation to get myself into the gym anymore because my

15 stiffness and pain have progressed to where it’s a battle just to do this task. I have to literally

16 mentally force myself to go because I know I need this particular type of workout and exercise to

17 keep myself as mobile as I can for as long as I can. After exercising I will head home to do more

18 stretching and take a hot shower to help relax the body more.” AR 322. Doctors’ notes show

19 that exercise helped Plaintiff alleviate some of his symptoms, AR 396, and doctors encouraged

20 him to continue exercising as a treatment option for a variety of his ailments. AR 400, 444-48,

21 489, 762, 768, 784-86, 799, 807, 832, 912-13, 1058, 1085, 1163.

22 Plaintiff reported to doctors in March 2020 that he “[goes] to the gym with regularity and

23 [works out] both aerobically as well as with resistance.” AR 2435. In August 2021, Plaintiff

1 reported to his doctor that he engaged in “moderate to strenuous exercise,” defined as activities

2 that cause a light or heavy sweat, four days a week for 80 minutes. AR 471. This note is carried

3 forward fifty times to all subsequent records with this provider, reflecting the August 2021 date

4 as the “date recorded.” See, e.g., AR 1611, 1756, 2055, 2098, 2107, 2114, 2121, 2128, 2142. He

5 again reported exercising regularly at doctor’s appointments in August and December of 2022.

6 AR 1345, 1586.

7 Generally, the ALJ is permitted to weigh all of this evidence and resolve it in favor of a

8 finding of inconsistency. See Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). But

9 the record is not clear as to the nature and frequency of the exercise at the time of the hearing.

10 See Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) (ALJ erred in discrediting pain

11 testimony based on plaintiff’s report of walking one to one-and-a-half miles twice a day);

12 Bridget D. v. Kijakazi, No. 2:20-cv-6198-SK, 2021 U.S. Dist. LEXIS 241413, at *2, 2021 WL

13 5917117, at *1 (C.D. Cal. Sept. 27, 2021) (Plaintiff’s reported swimming was not a clear and

14 convincing reason supported by substantial evidence to find her not credible, as the record was

15 not adequately developed as to the nature and frequency of the exercise); Sanchez v. Colvin, No.

16 CV 16-05136-KES, 2017 U.S. Dist. LEXIS 145245, 2017 WL 3971846, at *11 (C.D. Cal. Sept.

17 7, 2017) (treatment notes’ references to Plaintiff’s ability to exercise was not inconsistent with

18 her claimed limitations as the notes did not indicate nature or frequency of exercise).

19 Accordingly, the ALJ erred in rejecting Plaintiff’s testimony for this reason.3

20 B. The ALJ Did Not Err in Evaluating Medical Opinion Evidence

21 Plaintiff argues that the ALJ erred in evaluating the medical opinions of Drs. Belous,

22 Platter, Weaver, and erred in not considering the conclusions of the physical capacitates

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3 Moreover, just as the ALJ would not find visiting a physical therapist four times a week as evidence of non-

disability, it is unreasonable for the ALJ to punish Plaintiff for following Doctor’s orders to exercise regularly.

1 evaluation conducted by Aaron Varney, Master of Occupational Therapy (MOTR/L) and

2 Certified Hand Therapist (CHT).4 The ALJ found the opinion of consultive medical examiner

3 Dr. Belous and reviewing medical examiners Dr. Platter and Weaver persuasive. The ALJ found

4 MOTR/L CHT Varney’s opinion conclusory and unpersuasive.

5 When determining whether a claimant is eligible for benefits, an ALJ need not take every

6 medical opinion at “face value.” Ford v. Saul, 950 F.3d 1141, 1155 (9th Cir. 2020). Instead, the

7 ALJ must scrutinize the various—often conflicting—medical opinions to determine how much

8 weight to give each opinion. Id. ALJs look to a number of factors, with a specific focus on

9 whether the explanation supports the opinion and whether the opinion is consistent with the other

10 evidence on the record. 20 C.F.R. § 404.1520c(a)-(c).

11 While an ALJ must explain why he rejects medical opinion evidence, no such

12 requirement exists where the ALJ accepts medical opinion evidence. See 20 C.F.R. § 404.1527;

13 96-8p (July 2, 1996) (“If the RFC assessment conflicts with an opinion from a medical source,

14 the adjudicator must explain why the opinion was not adopted.”); Orteza v. Shalala, 50 F.3d 748,

15 750 (9th Cir. 1995) (explaining that the ALJ is not required to provide clear and convincing

16 reasons where the ALJ is not rejecting medical opinion evidence).

17 Plaintiff argues that the ALJ gave too much weight to the opinions of consultative

18 medical evaluator Dr. Belous and of reviewing physician’s Drs. Platter and Weaver, as the

19 findings were “largely not relevant or informative as to the severity or functional impact of

20 Plaintiff’s ankylosing spondylitis and fibromyalgia.” Dkt. 9 at 12. Plaintiff further takes issue

21 with the reviewing physicians’ opinions as “there is nothing in the disability determinations

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23 4 The Court notes the parties refer Aaron Carney, who is not present in the record. This appears to be a scrivener’s

error, as the opinion cited in all briefings is that of Aaron C. Varney, MOTR/L, CHT. AR 2552. Accordingly, the

Court evaluates the parties’ arguments as they relate to Mr. Varney.

1 showing that they took [sic] gave more than minimal consideration to Plaintiff’s most limiting

2 impairments and they offered no explanations as to how they drew the conclusions that they

3 did.” Dkt. 9 at 12-13. Non-examining State agency medical consultants are highly qualified and

4 experts in the evaluation of Social Security disability claims and, while not binding, their

5 opinions must be considered. 20 C.F.R. § 404.1513a(b)(1). Plaintiff essentially reiterates his

6 arguments as they relate to his symptom testimony and does not point the Court to an opinion

7 from an acceptable medical source which would result in the ALJ’s evaluation being a harmful

8 error.

9 In weighing medical source opinions, Social Security regulations distinguish between

10 acceptable medical sources and other sources. 20 C.F.R. § 404.1513. Occupational therapists

11 are not “acceptable medical sources” under the applicable regulations. 20 C.F.R. § 404.1502.

12 As such, ALJs are “not required to articulate how [they] considered evidence from nonmedical

13 sources.” 20 C.F.R. § 404.1520c(d). While the record does not contain the physical capacities

14 evaluation conducted by Mr. Varney, his notes include objective medical findings and a history

15 of Plaintiff’s present illness. AR 2553. Plaintiff argues that the ALJ had a duty to further

16 develop the record as the record did not include the actual testing and assessment results. Dkt. 9

17 at 14. Plaintiff “bears the burden of proving that [he] has an impairment that meets or equals the

18 criteria of [a listed] impairment.” Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005) (cleaned

19 up). “An ALJ’s duty to develop the record further is triggered only when there is ambiguous

20 evidence or when the record is inadequate to allow for proper evaluation of the evidence.” See

21 Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020). The ALJ considered the medical opinions

22 from ten other providers as well as the state medical agency. Accordingly, that the ALJ rejected

23 the nonmedical opinion as brief and conclusory is, at most, harmless error. See Thomas, 278

1 F.3d at 957 (“The ALJ need not accept the opinion of any physician, including a treating

2 physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings.”)

3 Nonetheless, on remand the ALJ should review the physical capacities evaluation to fully

4 develop the record.

5 C. The ALJ Erred in Evaluating Lay Witness Evidence

6 The Court notes that the Ninth Circuit has not yet clarified whether an ALJ is still

7 required to provide “germane reasons” for discounting lay witness testimony. See Stephens v.

8 Kijakazi, 2023 WL 6937296, at *2 (9th Cir. Oct. 20, 2023). However, that an ALJ can disregard

9 or reject relevant lay witness evidence for no reason is inconsistent with the Commissioner’s

10 obligation pursuant to other controlling regulations to determine Plaintiff’s RFC based upon all

11 relevant evidence of record, including observations made by a claimant’s family, neighbors,

12 friends, or other person. See 20 C.F.R § 404.1529(c)(1) (“In evaluating the intensity and

13 persistence of your symptoms, we consider all of the available evidence from your medical

14 sources and nonmedical sources about how your symptoms affect you.”); id. at § 404.1545(a)(3)

15 (“We will also consider descriptions and observations of your limitations from your

16 impairment(s), including limitations that result from your symptoms, such as pain, provided by

17 you, your family, neighbors, friends, or other persons.”); Vincent ex rel. Vincent v. Heckler, 739

18 F.2d 1393, 1395 (9th Cir. 1984) (holding that an ALJ may not reject “significant probative

19 evidence” without explanation).

20 As noted, Ninth Circuit law remains unsettled regarding the standard for reviewing an

21 ALJ’s evaluation of lay witness testimony under the 2017 regulations. See Stephens, 2023 WL

22 6937296, at *2; Mark C. J. v. Comm’r of Soc. Sec., No. 3:24-CV-5252-DWC, 2024 WL

23 4182576, at *4 (W.D. Wash. Sept. 13, 2024) (noting unsettled nature of Ninth Circuit law and

1 applying “germane” reasons standard in absence of guidance from Ninth Circuit). Without

2 providing reasons for rejecting testimony this Court is unable to meaningfully review the ALJ’s

3 decision. The ALJ here mis-identified the lay witness, L.D., as Plaintiff’s son rather than his

4 mother, does not provide any explanation of how the statements were considered, and did not

5 assess the persuasiveness. Accordingly, the ALJ erred in her evaluation of L.D.’s testimony.

6 CONCLUSION

7 For the reasons set forth above, the Commissioner’s final decision is REVERSED and

8 this case is REMANDED for further administrative proceedings under sentence four of 42

9 U.S.C. § 405(g).

10 On remand, the ALJ shall reconsider Plaintiff’s testimony, consider the lay statements,

11 develop the record as to the physical capacities evaluation conducted by Mr. Varney, and

12 redetermine RFC as needed and proceed to the remaining steps of the disability determination

13 process as appropriate.

14 Dated this 31st day of January, 2025.

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A

16 S. KATE VAUGHAN

United States Magistrate Judge

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