“An ALJ’s failure to cite specific evidence does 22 not indicate that such evidence was not considered[.]”
How later courts described this case
- “An ALJ’s failure to cite specific evidence does 22 not indicate that such evidence was not considered[.]”
- The 18 court “must consider the entire record as a whole, weighing both the evidence that 19 supports and the evidence that detracts from the Commissioner's conclusion,” not 20 simply the evidence cited by the ALJ or the parties.
Written by the judges who cited it.
The opinion
1 EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON
Feb 12, 2025
2
SEAN F. MCAVOY, CLERK
3
4 UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
5
6 TRACY F.,1 No. 4:24-cv-5098-EFS
7 Plaintiff,
ORDER REVERSING THE ALJ’S
8 v. DENIAL OF BENEFITS, AND
REMANDING FOR MORE
9 MICHELLE KING, Acting PROCEEDINGS
Commissioner of Social Security,2
10
Defendant.
11
12
13 Plaintiff Tracy F. asks the Court to reverse the Administrative Law Judge’s
14 (ALJ) denial of Title 16 benefits. Plaintiff claims she is unable to work due to
15 migraine headaches, lumbar degenerative disc disease, lupus, rheumatoid
16 arthritis, depression/bipolar, anxiety, obsessive compulsive disorder, and PTSD. As
17
18
1 For privacy reasons, Plaintiff is referred to by first name and last initial or as
19
“Plaintiff.” See LCivR 5.2(c).
20
2 Michelle King is now the Acting Commissioner of Social Security. Pursuant to
21
Federal Rule of Civil Procedure Rule 25(d) and the Social Security Act, 42 U.S.C. §
22
405(g), she is hereby substituted as the Defendant.
23
1 is discussed below, the ALJ consequentially erred at step two of the disability
2 evaluation. This matter is remanded for further proceedings.
3 I. Background
4 Plaintiff has struggled with her physical and mental health, seeking medical
5 treatment for physical conditions on at least a monthly basis, participating in
6 mental-health counseling, and having her medication for her physical and mental
7 conditions managed. Believing that she is unable to work fulltime, Plaintiff applied
8 for benefits in July 2020 under Title 16 based on the above-listed conditions.3
9 After the agency denied benefits, ALJ Mary Ann Poulose held a telephone
10 hearing in June 2023, at which Plaintiff and a vocational expert testified.4 Plaintiff
11 testified that she last worked fulltime in 2019, being fired after a panic attack.5
12 Soon thereafter, she was again fired from her next (and last) parttime job.6 She
13 testified that she usually wakes up very fatigued with body pain, she will then get
14 her kids ready for school, and once they are on the bus she returns home to lay
15 down and rest for a couple hours.7 She then does chores such as taking out the
16 trash or washing dishes but she is unable to do much because her body starts
17
18
3 AR 211–29.
19
4 AR 45–76, 113–17.
20
5 AR 51–52.
21
6 AR 53.
22
7 AR 53, 68.
23
1 hurting and she gets exhausted.8 She shared that due to weakness in her legs and
2 her back pain she sometimes needs help getting dressed or with bathing.9 She
3 testified that because her hands get stiff and rigid she has difficulty at times doing
4 certain tasks, such as buttoning, zipping, typing, and opening a doorknob.10 She
5 shared that sitting in an upright chair for more than 10 minutes puts too much
6 pressure on her back, and she experiences back pain and leg weakness if she
7 stands in place for more than 5 minutes.11 When going up and down stairs, she
8 uses the rail and will usually place both feet on a stair tread before bringing her
9 feet to the next step.12 She shared that she uses a cane at times to help with
10 stability.13 She testified that she gets migraines at least weekly and when she has
11 one she will go into a dark room and try to sleep.14 The medications that she takes
12
13
14
15
16
8 AR 53–54.
17
9 AR 54.
18
10 AR 56–57, 65.
19
11 AR 57.
20
12 AR 57–58.
21
13 AR 58.
22
14 AR 60.
23
1 for her various conditions can cause nausea, fatigue, and restless legs.15 She shared
2 that she gets face rashes and her hair has been falling out.16
3 She shared that she also struggles with depression, being around people and
4 crowds, and with flashbacks and nightmares.17 She testified that she does not visit
5 with other people, attend church, or clubs, and usually does not go grocery
6 shopping by herself—she either goes with others or has groceries delivered.18 She
7 testified that she tries not to drive due to her anxiety and so she gets a ride to
8 appointments and stores from her boyfriend’s mother.19 She stated that she has
9 difficulty remembering a story, even though she likes to read. She also likes to
10 create digital art and do arts and crafts, such as designing graphics for tumbler
11 cups, t-shirts, stickers, and stained glass, but can only do so for about 15 minutes
12 before taking a break due to cramping and stiffness in her hands.20
13
14
15
16
17
15 AR 61.
18
16 AR 70.
19
17 AR 62–63.
20
18 AR 55–56, 69.
21
19 AR 53, 64.
22
20 AR 55, 65–68.
23
1 After the hearing, the ALJ issued a decision denying benefits.21 The ALJ
2 found Plaintiff’s alleged symptoms were inconsistent with the medical evidence
3 and other evidence.22 As to the medical opinions, the ALJ found:
4 • the reviewing administrative findings by Craig Billinghurst, MD, and
5 Robert Stuart, MD, generally persuasive.
6 • the statements from treating provider Mark Flesher, MD, and
7 examining source David Morgan, PhD, and the reviewing
8 administrative findings by Howard Atkins, PhD, and Bruce Eather,
9 PhD, not persuasive.23
10 As to the sequential disability analysis, the ALJ found:
11 • Step one: Plaintiff had not engaged in substantial gainful activity
12 since July 2, 2020, the application date.
13 • Step two: Plaintiff had the following medically determinable severe
14 impairments: anxiety and obsessive compulsive disorder, cannabis use
15 disorder, ovarian cyst, headaches, and lumbar spondylosis.
16
17
18
19
21 AR 1–39. Per 20 C.F.R. § 416.920(a)–(g), a five-step evaluation determines
20
whether a claimant is disabled.
21
22 AR 26–29.
22
23 AR 29–31.
23
1 • Step three: Plaintiff did not have an impairment or combination of
2 impairments that met or medically equaled the severity of one of the
3 listed impairments.
4 • RFC: Plaintiff had the RFC to perform light work except Plaintiff
5 cannot climb ladders, ropes, and scaffolds; can only occasionally climb
6 ramps and stairs; can occasionally crouch, crawl, stoop, and kneel;
7 and can perform simple repetitive work with no public and only
8 occasional coworker interaction.
9 • Step four: Plaintiff was unable to perform past relevant work.
10 • Step five: considering Plaintiff’s RFC, age, education, and work
11 history, Plaintiff could perform work that existed in significant
12 numbers in the national economy, such as housekeeping cleaner,
13 merchandise marker, and collator operator.24
14 Plaintiff timely requested review of the ALJ’s decision by the Appeals
15 Council and now this Court.25
16 II. Standard of Review
17 The ALJ’s decision is reversed “only if it is not supported by substantial
18 evidence or is based on legal error” and such error impacted the nondisability
19
20
21
24 AR 17–33.
22
25 AR 1–6.
23
1 determination.26 Substantial evidence is “more than a mere scintilla but less than
2 a preponderance; it is such relevant evidence as a reasonable mind might accept as
3 adequate to support a conclusion.”27
4 III. Analysis
5 Plaintiff argues the ALJ grossly mischaracterized the record regarding
6 clinical evidence, remarkable objective findings, and well-supported symptoms
7 suffered by Plaintiff thereby erring at steps two and three, when evaluating the
8 medical opinions and Plaintiff’s symptom testimony, and erring at step five. The
9 Commissioner argues substantial evidence supports the ALJ’s rationale analysis.
10
11
26 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). See 42 U.S.C. § 405(g);
12
Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) ), superseded on other
13
grounds by 20 C.F.R. § 416.920(a) (recognizing that the court may not reverse an
14
ALJ decision due to a harmless error—one that “is inconsequential to the ultimate
15
nondisability determination”).
16
27 Hill, 698 F.3d at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir.
17
1997)). See also Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (The
18
court “must consider the entire record as a whole, weighing both the evidence that
19
supports and the evidence that detracts from the Commissioner's conclusion,” not
20
simply the evidence cited by the ALJ or the parties.) (cleaned up); Black v. Apfel,
21
143 F.3d 383, 386 (8th Cir. 1998) (“An ALJ’s failure to cite specific evidence does
22
not indicate that such evidence was not considered[.]”).
23
1 As is explained below, by not fairly and fully considering the objective medical
2 evidence related to Plaintiff’s rheumatoid arthritis and/or lupus, the ALJ erred.
3 This error impacted the remainder of the ALJ’s disability evaluation.
4 A. Step Two (Severe Impairment): Plaintiff establishes consequential
error.
5
Plaintiff argues that the ALJ erred at step two by failing to find the
6
impairments of rheumatoid arthritis, lupus, depression/bipolar, and PTSD as
7
severe impairments. The Commissioner argues that Plaintiff has not shown any
8
step-two error and that any such error was inconsequential because the ALJ’s
9
finding that Plaintiff has severe lumbar spondylosis covers Plaintiff’s functional
10
impairments allegedly related to rheumatoid arthritis and/or lupus, and any
11
symptoms related to alleged depression/bipolar disorder or PTSD are adequately
12
addressed by the found severe anxiety and obsessive compulsive disorder.
13
1. Standard
14
At step two, the ALJ determines whether the claimant suffers from a
15
“severe” impairment, i.e., one that significantly limits her physical or mental
16
ability to do basic work activities.28 This involves a two-step process: 1)
17
determining whether the claimant has a medically determinable impairment, and
18
2) if so, determining whether the impairment is severe.29 To be severe, the medical
19
20
21
28 20 C.F.R. § 416.920(c).
22
29 Id. § 416.920(a)(4)(ii).
23
1 evidence must establish that the impairment would have more than a minimal
2 effect on the claimant’s ability to work.30 Neither a claimant’s statement of
3 symptoms, a diagnosis, nor a medical opinion sufficiently establishes the existence
4 of an impairment.31 Rather “a physical or mental impairment must be established
5 by objective medical evidence from an acceptable medical source.”32 Evidence
6 obtained from the “application of a medically acceptable clinical diagnostic
7 technique, such as evidence of reduced joint motion, muscle spasm, sensory
8 deficits, or motor disruption” is considered objective medical evidence.33 If the
9 objective medical signs and laboratory findings demonstrate the claimant has a
10 medically determinable impairment,34 the ALJ must then determine whether that
11 impairment is severe.35
12
13
30 Id.; see Soc. Sec. Rlg. (SSR) 85-28 (Titles II and XVI: Medical Impairments That
14
Are Not Severe).
15
31 Id. § 416.921.
16
32 Id. § 416.921. See also SSR 85-28 at *4.
17
33 3 Soc. Sec. Law & Prac. § 36:26, Consideration of objective medical evidence (2019).
18
See also 20 C.F.R. §§ 416.902(k), 416.913(a)(1).
19
34 “Signs means one or more anatomical, physiological, or psychological
20
abnormalities that can be observed, apart from [a claimant’s] statements
21
(symptoms).” 20 C.F.R. § 416.902(l).
22
35 See SSR 85-28 at *3.
23
1 The severity determination is discussed in terms of what is not severe.36 A
2 medically determinable impairment is not severe if the “medical evidence
3 establishes only a slight abnormality or a combination of slight abnormalities
4 which would have no more than a minimal effect on an individual’s ability to
5 work.”37 Because step two is simply to screen out weak claims,38 “[g]reat care
6 should be exercised in applying the not severe impairment concept.”39
7 2. ALJ’s Findings
8 At step two in regard to rheumatoid arthritis and lupus, the ALJ found these
9 alleged impairments were non-medically determinable impairments because they
10 were not supported by the medical record as:
11 the treatment record showed the claimant had unrevealing
autoimmune workup (Exhibit 4F, pages 5, 22). Testing from July 20,
12 2021, showed a negative ANA, normal CCP antibodies and ESR
(Exhibit 14F, pages 49-50). The undersigned considered the claimant’s
13 pain complaints in regards to the medically determinable
impairments noted above [which as to physical impairments were
14 ovarian cyst, headaches, and lumbar spondylosis].40
15 In addition, later in the nondisability decision, the ALJ wrote:
16 Regarding use of a cane, pursuant to Social Security Ruling 96-9p, to
find that a hand-held assistive device is medically required, there
17
18
36 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996).
19
37 Id.; see SSR 85-28 at *3.
20
38 Smolen, 80 F.3d at 1290.
21
39 SSR 85-28 at *4.
22
40 AR 20.
23
1 must be medical documentation establishing the need for a hand-held
assistive device to aid in walking or standing and describing the
2 circumstances for which it is needed (i.e., whether all the time,
periodically, or only in certain situations; distance and terrain; and
3 any other relevant information). Such a description is not in the
record. The undersigned considered that on August 3, 2021, the
4 claimant exhibited normal ambulation but used a cane (Exhibit 14F,
pages 13-18).
5
3. Summary of Medical Records41
6
In May 2020, Plaintiff was treated by rheumatologist Dr. Sudeep Thapa.
7
Dr. Thapa wrote, “planes of pain in multiple joints. Hand pain is prominent in
8
[proximal interphalangeal] (PIPs). Aching in character. Moderate to severe in
9
intensity.”42 In June 2020, Plaintiff sought treatment from her primary provider
10
Dr. Mark Flesher for a follow-up of inflammatory polyarthritis and a history of
11
systemic lupus erythematosus (SLE).43 She reported pain and swelling in multiple
12
PIP joints, with the most prominent being observed in the third and fourth PIPs. In
13
August 2020, Dr. Flesher treated Plaintiff for low back pain, which Dr. Flesher
14
identified as being due to both arthritis and endometriosis.44
15
16
17
41 This summary is not a complete summary of the medical records. Instead, it
18
identifies some of the treatment records for Plaintiff’s physical conditions in order
19
to provide context to the step-two analysis.
20
42 AR 549.
21
43 AR 1096.
22
44 AR 607.
23
1 In September 2020, Plaintiff had surgery to remove her left ovary and have
2 a bladder mesh placed.45 Two weeks later she reported that the surgery helped
3 with her ovarian pain.46
4 In October 2020, neurologist Dr. Steven Erlemeier treated Plaintiff for
5 syncope, migraines, and memory loss.47 As part of the examination, Dr. Erlemeier
6 noted spasticity in Plaintiff’s extremities along with reflexes of: “Reflexes Right:
7 biceps 3/4, triceps 3/4, patellar 3/4, and Achilles 4/4; Sustained ankle clonus.
8 Reflexes Left: patellar 3/4 and Achilles 4/4 and biceps 2/4 and triceps 2/4; 3 beat
9 clonus at ankle. . . Equivocal Babinski.”48 Dr. Erlemeier assessed Plaintiff with
10 lower limb spasticity and ankle clonus. He considered whether an MRI of the brain
11 would be helpful to “document the level of encephalomalacia in the left more than
12 right hemispheres. If the EEG is abnormal consider temporal lobe cuts to assess for
13 mesial temporal sclerosis.”49
14 In October 2020, Plaintiff participated in an EEG sleep study to try to
15 determine the source of her reported multiple syncope episodes.50 The EEG was
16
17
45 AR 644–60.
18
46 AR 451.
19
47 AR 564–69.
20
48 AR 568.
21
49 AR 569.
22
50 AR 661.
23
1 normal. In November 2020, Plaintiff had a follow-up with Dr. Thapa by telephone
2 for “inflammatory polyarthritis,” during which she reported aching pain in multiple
3 joints of bilateral upper and lower extremities, although she reported that her
4 hand pain was better since starting hydroxychloroquine, but she still had swelling
5 and her back pain was persistent.51
6 In December 2020, Plaintiff had a follow-up appointment with
7 Dr. Erlemeier, where she reported continued episodes of syncope.52 She was
8 observed with sustained ankle clonus and 3 beat clonus at the ankles.53
9 Dr. Erlemeier wrote, “reassurance was provided that overall she does have spastic
10 quadriparesis more on the right side [with] the right lower extremity was the most
11 affected. This is likely from her premature status and/or attendant complications. .
12 . . We will obtain a sleep deprived EEG though there is concern that a number of
13 her spells are more stress related in terms of her syncope and collapse.”54
14 Dr. Erlemeier treated Plaintiff again in February 2021 for lower limb spasticity,
15 ankle clonus, and sleep deprivation.55 He observed that she “has sustained ankle
16
17
18
51 AR 562–63.
19
52 AR 555.
20
53 AR 558.
21
54 AR 559.
22
55 AR 551–55.
23
1 clonus and 3 beat clonus at the ankles . . . Conjugate eye movements. Gait is not
2 ataxic.”56
3 In March 2021, Plaintiff met with Dr. Thapa for a lupus erythematosus
4 follow-up. She reported that she has less pain in her peripheral joints and fewer
5 lupus flares but increased pain in her lower back.57 Dr. Thapa assessed
6 inflammatory polyarthritis/history of SLE/fibromyalgia.58 Dr. Thapa noted that,
7 although Plaintiff has a history of lupus, her ANA was negative, and her
8 autoimmune workup was negative, yet she has synovitis of multiple PIPs.
9 Dr. Thapa ordered x-rays, which revealed mild bilateral sacroiliac joint
10 degenerative changes and mild L5-S1 disc space narrowing.59 Pain medication was
11 prescribed.
12 The next day Plaintiff sought urgent treatment for bilateral flank/back pain
13 and difficulty urinating.60 She was observed with mild bilateral costovertebral
14 angle tenderness to percussion, abdominal tenderness, mild tenderness to bilateral
15 lumbar paraspinal musculature on palpation, and mild impairment of range of
16
17
18
56 AR 554.
19
57 AR 548.
20
58 AR 549.
21
59 AR 570–71.
22
60 AR 662, 881–34.
23
1 motion when trying to bend over to touch her toes. She was assessed with strain of
2 lumbar paraspinal muscle and flank pain.
3 In June 2021, Plaintiff had a rheumatology follow-up with Dr. Thapa by
4 telephone.61 Plaintiff reported that her hand and feet joint pain were doing better
5 with the hydroxychloroquine treatment, but she continued to have aching back
6 pain and multiple joint/muscle pain throughout her body, including difficulty
7 walking and doing activities of daily living.62 Plaintiff was continued on Plaquenil
8 medication.63
9 At her July 2021 appointment with Dr. Flesher, Plaintiff reported that she
10 felt like she was having a lupus flare up.64 Although Plaintiff’s gait and motor
11 strength were normal, Dr. Flesher assessed her with multiple joint pain.65 Later in
12 July, Plaintiff sought treatment for headaches and sinus pressure, and the MRI
13 ordered by Dr. Flesher revealed “single focus of FLAIR signal hyperintensity in the
14 centrum semiovale, likely nonspecific finding in a patient this age. Can be seen in
15
16
17
18
61 AR 801.
19
62 AR 804.
20
63 AR 805–06.
21
64 AR 957.
22
65 AR 962.
23
1 setting of history of migraine. Given single focus less likely differential
2 considerations include early demyelinating process, vasculitis, Lyme disease.”66
3 Plaintiff saw Dr. Flesher again in August 2021 during which Plaintiff
4 reported dizziness and migraines with aura and was observed ambulating with a
5 cane.67 Plaintiff returned to see Dr. Flesher the next day due to pain in her leg and
6 dizziness.68 Two weeks later Plaintiff returned to Dr. Thapa for her back pain and
7 hip pain that started about three weeks prior, requiring her to use a cane to walk.69
8 Dr. Thapa wrote “no synovitis in bilateral upper and lower extremities” but she
9 was positive for greater trochanteric bursitis (GTB).70 Plaintiff received a steroid
10 injection into the bilateral trochanteric bursa.71
11 Plaintiff had a new patient consultation for physical therapy in September
12 2021.72 Her back was tender to palpation over the lumbar-sacral spine, tenderness
13 over sacroiliac (SI) joints, with negative straight leg raise, positive Faber for SI
14 joint, negative lumbar facet loading, with some difficulty arising from seated
15
16
66 AR 979.
17
67 AR 952.
18
68 AR 1071.
19
69 AR 1092.
20
70 AR 1097.
21
71 AR 1097.
22
72 AR 1165.
23
1 position to standing, a single leg stand bilaterally with minimal sway, with a slow
2 and antalgic gait initially but then improved with cooperation.73 Her exam was
3 found to be consistent with sacroiliitis. The treating PA wrote, “She notes she
4 sometimes has pain from her low back down both legs, but exam today is benign.”74
5 Plaintiff engaged in several physical therapy sessions for her low back pain:
6 • Oct. 4, 2021: forward head, increased thoracic kyphosis and lumbar
lordosis, some bilateral foot drag, significant bilateral Trendelenburg,
7 mild lateral deviations, lumbar flexion and extension painful range of
motions, weak L4 lumbar myotomes on the right and left, positive
8
straight leg raise on right, possible two beat clonus in bilateral S1,
9 thoracic and lumbar joints mobility is hypomobile and painful, hip
abduction on right and left was 3/5, tender to palpation in the lumbar,
10 and decreased hip flexion on the right.75
11 • Oct. 12, 2021: “Patient fatigued quickly with exercises, however tolerated
well overall.”76
12
13 • Nov. 29, 2021: Plaintiff reported that she has fallen about 5 times.
“Patient reported fatigue following leg bike but did tolerate it well.
14 Balance was difficult with ball basics and patient may benefit from
vestibular assessment.”77
15
• Dec. 6, 2021: “Fell yesterday at night around 9 pm. Was washing dishes
16
and just standing there and legs gave out. No injuries besides a small
17
18
73 AR 1166.
19
74 AR 1167.
20
75 AR 1234.
21
76 AR 1233.
22
77 AR 1229.
23
1 bruise on knee. Back is sore today. When laying on L side there is some
dizziness.” “Tested positive for left [posterior semicircular canal] [benign
2 paroxysmal positional vertigo] responded to treatment.”78
3
• Dec. 13, 2021: “[P]atient is progressing as expected,” tolerance to
4 treatment was good, and “no positions provoked dizziness with testing
today.”79
5
• Dec. 21, 2021: “No positions provoked dizziness with testing.”80
6
• Jan. 7, 2022: “Some soreness in the back but has been doing exercises
7
and feels like it’s helping. Carrying and doing the stairs causes back to
8 hurt for the rest of the day.”81
9 • Jan. 14, 2022: Plaintiff reported she had increased anxiety and stress due
to life situations and dizziness and pain symptoms have worsened as
10
well. Tightness to palpation in the lumbar and thoracic paraspinals with
trunk range of motion guarded but functional.82
11
12 • Jan. 26, 2022: Plaintiff stated that she fell that morning and days prior.
“Patient was also instructed to use a [single point cane] to reduce risk of
13 falls. Patient required [contact guard assist] while walking in clinic and
displayed unstable gait.”83
14
15
16
17
78 AR 1224–25.
18
79 AR 1222, 1220.
19
80 AR 1218.
20
81 AR 1212.
21
82 AR 1208.
22
83 AR 1204.
23
1 • Feb. 3, 2022: Plaintiff reported a fall over the weekend and had a bruise
on her left triceps.84
2
• Feb. 10, 2022: Plaintiff’s back was hurting due to cleaning last night, but
3
no falls since the last appointment and she felt more stable.85
4
• Feb. 22, 2022: Plaintiff reported she fell down the stairs the day prior due
5 to dizziness. She was observed with very fatiguing hip abduction and her
lumbar paraspinals and bilateral quadratus lumborum were tender to
6 palpation.86
7
The discharge letter for physical therapy lists Plaintiff’s diagnosis as low back
8
pain, fibromyalgia, muscle weakness, lumbar spine stiff, and benign paroxysmal
9
positional vertigo.87
10
Also, during this period, Plaintiff returned to see Dr. Flesher. In the
11
“Physical Exam” portion of these treatment notes, Dr. Flesher did not note that he
12
observed any abnormal ambulation or musculoskeletal findings. But when
13
considering Dr. Flesher’s notes in other sections of his treatment records,
14
particularly in the “History of Present Illness” (HPI) or “Assessment/Plan”
15
sections, it is unclear if the findings under the “Physical Exam” section were
16
findings made by Dr. Flesher or merely default language.88 For instance,
17
18
84 AR 1202.
19
85 AR 1196.
20
86 AR 1191.
21
87 AR 1238.
22
88 AR 1476, 1460, 1441–43, 1430–31.
23
1 notwithstanding normal findings under the Physical Exam section, in October
2 2021, Dr. Flesher referred Plaintiff for rheumatologist for “systemic lupus
3 erythematosus,” as Plaintiff was concerned about her recent hair loss.89 In
4 February 2022, Dr. Flesher referred Plaintiff to a neurologist for migraines and
5 memory impairment, and again to a rheumatologist for “bursitis.”90 At her April
6 2022 appointment with Dr. Flesher, she reported she has been “shaky” and
7 increasingly thirsty and requested to see a neurologist for her migraines.91 At the
8 June 2022 appointment, Dr. Flesher noted that Plaintiff was using a cane to
9 ambulate that day and she reported tingling in her arms and hands; Dr. Flesher
10 ordered a repeat MRI to identify the cause for muscle weakness.92
11 The MRI of the brain performed in July 2022 showed that the single focus of
12 the FLAIR signal hyperintensity in the left centrum semiovale was unchanged.93
13 In August 2022, Dr. Flesher ordered physical therapy for Plaintiff’s left shoulder
14 pain, which Plaintiff participated in from September to October 2022.94
15
16
17
89 AR 1475–76.
18
90 AR 1461.
19
91 AR 1440–46.
20
92 AR 1425, 1430–31.
21
93 AR 1260.
22
94 AR 1160.
23
1 In February 2023, Plaintiff reported abnormal weight loss, about 15 pounds
2 over the last six weeks.95 A colonoscopy was ordered, and the results were
3 normal.96 Also that month, Dr. Flesher treated Plaintiff and completed a
4 Documentation Request Form for Medical or Disability Condition.97 On the
5 treatment record, Dr. Flesher assessed Plaintiff with Lynch syndrome98; lupus
6 erythematosus, noting that she sees rheumatology and that she has “arthritis from
7 Lupus in the back, legs, and [h]ips and some muscle weakness from it”; mixed
8 anxiety and depressive disorder; migraine without aura; and unspecified
9 rheumatoid arthritis.99 On the disability form, he wrote that Plaintiff has lupus,
10 rheumatoid arthritis, migraine, anxiety/depression, bipolar, and PTSD. In addition
11 to her limitations from her PTSD and anxiety, he opined that Plaintiff’s arthritis
12 from her lupus and rheumatoid arthritis makes it difficult for her to sit and that
13
14
15
95 AR 1377.
16
96 AR 1278–82.
17
97 AR 1143–45.
18
98 Lynch syndrome is a hereditary condition caused by altered genes, in which
19
immune defense to colorectal cancer is limited and they are at high risk of
20
developing cancer before age 50. American Cancer Society, Lynch Syndrome,
21
www.cancer.org (Last viewed February 5, 2025.)
22
99 AR 1370.
23
1 her migraines would make her unreliable. Dr. Flesher opined that Plaintiff was
2 unable to work “for now” and that she would be limited to sedentary work.100
3 In April 2023, Plaintiff saw Dr. Mike Kolczynski with Trios Spine and
4 Interventional Pain Clinic for her low back pain and bilateral hip pain. He
5 observed:
6 Plaintiff is slow to rise from seated standing position and able to stand
on toes and heels unsupported with more difficulty standing on heels
7 bilaterally, pain with lumbar extension lateral bending, lumbar facet
loading mildly positive, tenderness to palpation at lower lumbar level,
8 positive GTB bilaterally, positive IT bands bilaterally, sensory exam
within normal limit except reported feeling paresthesia throughout
9 right L3 and L4 dermatomal distribution, DTRs at L4 3+ bilaterally,
SLR positive bilaterally.101
10
Dr. Kolcyznski wrote, “Physical exam is consistent with myofascial pain as well as
11
facet arthropathy but also radiculopathy in the face of hyperreflexia during
12
exam.”102 He also assessed muscle pain, “Myalgia, other site.”103 He ordered an
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MRI of the spine, as well as discussed initiating a TENS unit and swimming to de-
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stress the spine.
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An MRI in May 2023 revealed:
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Lower lumbar degenerative spondylosis most prominent at L5-S1
17 where small broad-based posterior disc bulge results in mild spinal
canal narrowing. Moderate right and mild left L5-S1 foraminal
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100 AR 1143.
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101 AR 1326.
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102 AR 1326.
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103 AR 1326.
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1 narrowing with perceived impingement on the undersurface of the
exiting right greater than left L5 nerve root.104
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In June 2023, Plaintiff followed up with Dr. Kolcyznski, who wrote, “physical exam
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again corroborates radiculopathy in the face of axial back pain with radiculopathy
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being worse on the right greater than left.”105 Plaintiff was given a lumbar epidural
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steroid injection.
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A week later, Plaintiff sought treatment from Dr. Flesher for numbness in
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her left thumb and lumbar radiculopathy, along with mixed anxiety and depressive
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disorder.106
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4. Analysis
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The above summary reflects that Plaintiff sought regular treatment for a
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variety of physical maladies; however, the ALJ only found that Plaintiff had the
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severe physical impairments of ovarian cyst, headaches, and lumbar spondylosis.
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The Commissioner argues the severe impairment of lumbar spondylosis
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encapsulates Plaintiff’s functional limitations related to lupus and/or rheumatoid
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arthritis symptoms.
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It is not clear to the Court which diagnosed impairment—lupus and/or
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rheumatoid arthritis—Plaintiff’s non-lumbar spondylosis symptoms are associated
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104 AR 1529.
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105 AR 1514.
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106 AR 1506.
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1 with.107 Nonetheless, the medical record establishes that the ALJ’s step-two
2 findings are not supported by substantial evidence and correspondingly that the
3 light-work residual functional capacity (RFC) does not fully account for Plaintiff’s
4 symptoms related to her lupus/rheumatoid arthritis. Plaintiff’s treating providers
5 were confronted with mixed evidence as to the cause for Plaintiff’s observed joint
6 pain and muscle weakness, spasticity, hyperreflexia, and clonus. The observed joint
7 pain, synovitis of her hands, weakness in her lower extremities, and gait instability
8 were not accounted for at step two, nor with the light-work RFC at step five. While
9 Plaintiff’s hand and feet pain improved with medication, she still was observed
10 with bruising consistent with falls, an unstable gait, and a significant bilateral
11 Trendelenburg gait; use of a cane was recommended by her physical therapist; and
12 Dr. Flesher observed her using a cane.108
13 Overall, the medical record reflects more than simply a diagnosis of
14 lupus/rheumatoid arthritis and reported limiting symptoms by Plaintiff. The
15 treatment record reflects observations of signs consistent therewith. Plaintiff
16 establishes error at step two. This step-two error impacted the remainder of the
17
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107 The medical record reflects Plaintiff was observed with myalgia, synovitis, gait
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instability, hyperreflexia/spastic quadriparesis/clonus, and leg weakness. It is
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possible that the medical records since June 2023 may shed more information as to
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the cause and reveal a source that is not lupus or rheumatoid arthritis.
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108 AR 550, 952, 1166, 1200, 1204, 1224, 1234.
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1 ALJ’s disability evaluation. For instance, the ALJ rejected the reviewing
2 administrative finding of Craig Billinghurst, MD, and Robert Stuart, MD, that
3 Plaintiff could only occasionally balance because “[t]he record does not support that
4 the claimant would have difficulty maintaining body equilibrium to prevent falling
5 when walking standing, crouching, or running on narrow, slipper, or erratically
6 moving surfaces or while performing gymnastic feats.”109 Remand for further
7 proceedings is necessary, including a physical consultative examination. The
8 consultative examiner is to be given sufficient medical records to allow for a
9 longitudinal perspective of Plaintiff’s lupus/rheumatoid arthritis.110
10 IV. Conclusion
11 Plaintiff establishes the ALJ erred, and Plaintiff’s remaining arguments
12 need not be addressed. On remand, the ALJ is to further develop the record,
13 including arranging for a medical expert trained in rheumatoid arthritis or
14 systemic lupus erythematosus to conduct a consultative examination of Plaintiff.
15 The ALJ shall then conduct anew the disability evaluation, beginning at step two.
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17
18
19
109 AR 30. In addition, because the ALJ did not recognize that the physical
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therapist instructed Plaintiff to use a single point cane to reduce the risk of falls,
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the ALJ’s RFC assessment may have been consequentially impacted. See AR 1204.
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110 The record must clearly identify what medical records the examiner reviewed.
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1 Accordingly, IT IS HEREBY ORDERED:
2 1. The ALJ’s nondisability decision is REVERSED, and this matter is
3 REMANDED to the Commissioner of Social Security for
4 further proceedings pursuant to sentence four of 42 U.S.C. §
5 405(g).
6 2. The Clerk’s Office shall TERM the parties’ briefs, ECF Nos. 9 and
7 11, enter JUDGMENT in favor of Plaintiff, and CLOSE the case.
8 IT IS SO ORDERED. The Clerk’s Office is directed to file this order and
9 || provide copies to all counsel.
10 DATED this 12th day of February 2025.
Baad I hon
12 EDWARD F. SHEA
Senior United States District Judge
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DISPOSITIVE ORDER - 26