Cote v. Commissioner of Social Security

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

4 AT TACOMA

5 DEBRA C.,

Case No. 3:24-cv-05518-TLF

Plaintiff,

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v. ORDER REVERSING AND

REMANDING DEFENDANT’S

7 DECISION TO DENY BENEFITS

LELAND DUDEK, ACTING

COMMISSIONER OF SOCIAL SECURITY,

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Defendant.

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…

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Plaintiff filed this action pursuant to 42 U.S.C. § 405(g) for judicial review of defendant’s

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denial of plaintiff’s application for supplemental security income (“SSI”) and disability insurance

12 benefits (“DIB”) under 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and Local Rule

MJR 13, the parties have consented to the jurisdiction of a Magistrate Judge. Dkt. 2. Plaintiff

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challenges the Administrative Law Judge’s (“ALJ”) decision finding that plaintiff was not

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disabled. Dkt. 4, Complaint.

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Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of

16 Social Security benefits if the ALJ's findings are based on legal error or not supported by

substantial evidence in the record as a whole. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir.

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2017) (internal citations omitted). Substantial evidence is “‘such relevant evidence as a

18 reasonable mind might accept as adequate to support a conclusion.’” Biestek v. Berryhill, 139 S.

Ct. 1148, 1154 (2019) (internal citations omitted). The Court must consider the administrative

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1 record as a whole. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). The Court also must

weigh both the evidence that supports and evidence that does not support the ALJ’s conclusion.

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Id. The Court may not affirm the decision of the ALJ for a reason upon which the ALJ did not

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rely. Id. Rather, only the reasons identified by the ALJ are considered in the scope of the Court’s

4 review. Id.

On January 7, 2016, Plaintiff applied for Social Security Disability Insurance Benefits

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(“SSDI”) and Supplemental Security Income disability benefits (“SSI”), alleging a disability onset

6 date of April 1, 2013 and a date last insured of June 30, 2017. AR 435-53, AR 454. The claim

was denied initially and upon reconsideration, and plaintiff requested a hearing. AR 298-301,

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AR 307-21.

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On May 2, 2018, ALJ Malcolm Ross found claimant not disabled. AR 15-50. Plaintiff

9 requested administrative review, which the Appeals Council (“AC”) declined. AR 420-23, AR 1-

7. Plaintiff sought judicial review, and United States Magistrate Judge Richard Creatura ordered

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a remand for further proceedings. AR 1761-74. After a hearing on remand, on May 25, 2021,

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ALJ Ross again found Plaintiff not disabled. AR. 1553-95. The parties filed a stipulated motion

12 for remand, and on December 22, 2021, Judge Creatura reversed and remanded for further

administrative proceedings. AR 3442-46.

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On June 13, 2022, the AC issued an order remanding the case to a different ALJ. AR

14 3455-61. ALJ Allen G. Erickson held two hearings with plaintiff, her attorney, and a VE in

attendance and, on March 13, 2024, found plaintiff not disabled before November 19, 2021, but

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disabled on that date and continued to be disabled through March 13, 2024. AR 3321-98, AR

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3259-320. After exhausting her administrative remedies, plaintiff now seeks review of this March

17 2024 decision. Dkt. 1.

ALJ Erickson found Plaintiff to have the following severe impairments: lumbar spine

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degenerative disc disease, degenerative joint disease, and spondylolisthesis, and major

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depressive disorder (MDD). AR 3266. The ALJ found the “claimant’s substance use is not a

1 contributing factor material to the determination of disability.” AR 3268. The ALJ determined

Plaintiff had the residual functional capacity (“RFC”) to perform light work as defined in 20

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C.F.R. 404.1567(b) and 416.967(b) except occasional climbing of ladders, ropes, and scaffolds;

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occasional crawling; occasional exposure to vibration; occasional exposure to extreme cold

4 temperatures; an ability to understand, remember, and apply, detailed, not complex,

instructions; perform predictable tasks; not in a fast passed, production type environment;

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exposure to occasional workplace changes; and occasional interaction with the public. AR 3273.

6 Prior to the established disability onset date of November 19, 2021, the ALJ determined plaintiff

could have performed the following work: Routing Clerk (DOT 222687022; light; SVP-2; 105,000

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positions); Collator Operator (DOT 208.685-010; light; SVP-2, 33,000 positions); Parking Lot

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Attendant (DOT 915.473-010, light, SVP-2; 25,000 positions). AR 3298.

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DISCUSSION

10 1. Whether the ALJ harmfully erred by not conducting a two-step DAA analysis, as

required under Bustamante and SSR 13-2P

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Plaintiff argues the ALJ used the effects of Drug Addiction or Alcoholism (“DAA”) to discount

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opinions and testimony before properly separating out the effects of DAA, as required under

13 Bustamante v. Massanari, 262 F.3d 949, 955 (9th Cir. 2001) and SSR 13-2p. Dkt. 14, at 5-8;

SSR 13-2P, 78 Fed. Reg. 11939 (Feb. 20, 2013). Defendant argues the ALJ was not required to

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determine DAA materiality because the ALJ did not find plaintiff disabled after considering her

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substance use. Dkt. 20, at 11.

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If substance use disorder is a material contributing factor, the Contract with America

17 Advancement Act, Pub. L. No. 104-121, Sec. 105, 110 Stat. 847 (March 29, 1996) applies, and

states that “an individual shall not be considered to be disabled for purposes of [benefits under

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Title II or XVI of the Social Security Act] if alcoholism or drug addiction would (but for this

19 subparagraph) be a contributing factor material to the Commissioner’s determination that the

1 individual is disabled.”). 42 U.S.C. §§ 423(d)(2)(C), 1382c(a)(3)(J); Sousa v. Callahan, 143 F.3d

1240, 1245 (9th Cir. 1998) (reversing and noting the district court “failed to distinguish between

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substance abuse contributing to the disability and the disability remaining after the claimant

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stopped using drugs or alcohol.” (emphasis in original)).

4 Under Ninth Circuit precedent, in analyzing substance abuse in a disability determination the

5 ALJ must first determine whether the claimant is disabled under the standard five-step process,

including DAA. If the ALJ makes a disability finding at step one, the ALJ must conduct the five-

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step sequence a second time to separate out the effects of DAA and determine whether the

7 plaintiff would be found disabled if they ceased using drugs or alcohol. Bustamante, 262 F.3d at

955. Moreover, SSR 13-2p requires an ALJ to determine the nature of plaintiff’s DAA, whether it

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is medically determinable, and how it interacts with each of plaintiff’s impairments after a

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disability has been established.1

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Here, the ALJ found that the “claimants substance use is not a contributing factor material to

11 the determination of disability.” AR 3268. Yet the ALJ made findings to discount the medical

opinions on record on the basis that plaintiff’s symptoms and impairments were intertwined with

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or caused by substance using, including alcohol, cannabis, and opiates. For example:

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• The ALJ gave little weight to treating pain doctor Dr. Pexton’s June 2017 and May

14 2017 opinions, suggesting that “if the doctor had access to the records available at

the hearing level, he perhaps would have noted that the claimant’s allegations,

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presentation, and pain complaints increased significantly when she began seeing

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1 “We follow our usual case development rules and procedures for any impairment in cases in which DAA

materiality is, or may be, an issue.…We use the same rules for determining whether a claimant has a

18 Substance Use Disorder as we use for any other medically determinable physical or mental

impairment.…We do not have special rules for evaluating a claimant's credibility in cases involving DAA.

Adjudicators must not presume that all claimants with DAA are inherently less credible than other

19 claimants.” SSR 13-2P, 78 Fed. Reg. 11939 (Feb. 20, 2013).

1 him, and would perhaps have reconsidered prescribing a high dose of narcotics and

would have offered different opinions.” AR 3290. He also stated “…she presented

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with greater impairment to him (e.g. abnormal gait (Exs. 10F/1, 4, 7, 11; 20F/98-

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101)) than she did elsewhere until she received a higher dose of narcotics.” AR

4 3290.

• The ALJ partially discounted Dr. Kimberly Wheeler’s 2019 opinion, stating “Dr.

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Wheeler also offers no substance use disorder diagnosis, even of a condition in

6 remission, apparently accepting the claimant’s self-report that ‘I do not like feeling

high’ (Ex. 45F/2). The undersigned compares this self-report with her disclosures to

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Catholic Community Services in Exhibit 54F, of occasional alcohol use and up to

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daily smoking of marijuana in the previous year.” AR 3294.

9 • In assigning “”some weight” to Dr. Wheeler’s December 2020 examination, the ALJ

found: “[r]egarding alcohol, the claimant told Dr. Wheeler, ‘I haven’t touched any in I

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do not know how long now’ (Ex. 76F/2). Inconsistently, in her September 2019 CCS

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assessment, the claimant stated that ‘I do not take my meds if I want a beer’ (Ex.

12 77F/4) and elsewhere she described her drinking as ‘occasional’ (e.g. Ex. 44F/4).”

AR 3295.

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• As to plaintiff’s failure to comply with treatment, the ALJ found “[t]reatment otherwise

14 for her physical symptoms has been conservative with medication, including

15 narcotics, and physical therapy. She also has a history of therapeutic injections,

which she found helpful. As discussed above, the claimant also has been able to not

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take her medications if she wants to drink alcohol and use weed gummies.” AR

17 3286.

18 The ALJ relied on such reasoning to diminish the weight of various medical opinions and to

cast doubt on the credibility of plaintiff’s symptom testimony — before the ALJ conducted step

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1 one of the Bustamante analysis. See Brown v. Astrue, No. CIV S-09-3125 GGH, 2010 WL

4876591 (E.D. Cal. November 22, 2010) (reversing the ALJ’s decision sua sponte, finding

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harmful error in the ALJ’s lack of Bustamante two-part review, and explaining the first part, and

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second part, of the Bustamante analysis).

4 Yet this is the type of reasoning Bustamante prohibits: discounting medical opinions or

5 subjective reports because of DAA before making a threshold determination whether the

claimant is disabled, including all impairments. The ALJ did not use the DAA solely as a reason

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to find plaintiff’s statements unreliable, but the ALJ also made findings based on DAA to

7 discount the medical providers’ opinions and noted harmful effects of DAA.

8 Failure to follow the appropriate two-step framework is legal error under Bustamante. See

Norman Kijakazi, 650 F. Supp. 3d 1096, 1102 (D. Or. 2022) (“The ALJ erred when he failed to

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conduct the separate DAA analysis and yet, nevertheless, concluded Plaintiff was more

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functional and, therefore, not disabled when abstinent from substance abuse.”).

11 Here the ALJ’s RFC analysis commingled plaintiff’s substance use alongside mental and

physical health issues without the required initial finding of disability.

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Without a clear disability finding followed by a materiality analysis, the Court cannot

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determine whether the denial was legally proper, thus the ALJ’s legal error was not harmless.

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The DAA reasoning had a material effect on the disability determination. Remand is warranted

15 for a proper Bustamante-compliant DAA analysis.

16 2. Whether the ALJ articulated legally sufficient reasons to reject Plaintiff’s

statements concerning symptoms and limitations for the period at issue: between

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the alleged disability onset date of April 1, 2013 and November 19, 2021.

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The ALJ found that plaintiff’s statements concerning the intensity, persistence, and limited

19 effects of her symptoms were not entirely credible. AR 3275.

1 The ALJ’s determinations about a claimant’s statements about limitations “must be

supported by specific, cogent reasons.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)

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(citing Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990)). In assessing a plaintiff’s

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credibility, the ALJ must determine whether plaintiff has presented objective medical evidence of

4 an underlying impairment. If such evidence is present and there is no evidence of malingering,

the ALJ can only reject plaintiff’s testimony on the severity of their symptoms for specific, clear,

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and convincing reasons. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citing

6 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). “Contradiction with the medical

record is a sufficient basis for rejecting the claimant’s subjective testimony.” Carmickle v.

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Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (citing Johnson v. Shalala, 60

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F.3d 1428, 1434 (9th Cir.1995)).

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But an ALJ may not reject a claimant’s subjective symptom testimony “solely on a lack of

10 objective medical evidence to fully corroborate the alleged severity of pain.” Bunnell v. Sullivan,

947 F.2d 341, 345 (9th Cir. 1991); Byrnes v. Shalala, 60 F.3d 639, 641-42 (9th Cir. 1995)

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(applying rule to subjective complaints other than pain). Treatment records cannot be cherry-

12 picked; the ALJ must consider a particular record of treatment in light of the overall diagnostic

record. Ghanim, 763 F.3d at 1164. An ALJ may discount a claimant's testimony based on daily

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activities that either contradict their testimony or that meet the threshold for transferable work

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skills. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007).

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Plaintiff has consistently reported severe and unrelenting back pain that radiates down to

16 her right leg and complained to providers from her initial injury in 2012 to her last visit with Dr.

Miller on December 07, 2023. See, e.g., AR 625, AR 890, AR 897, AR 988, AR 1024, AR 2821,

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AR 2838, AR 2895, AR 2901, AR 2903, AR 2904, AR 3121, AR 3252, AR 3888, 3934, AR 4028,

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AR 4031, AR 4034, AR 4074, AR 4200, AR 4574. This pain has been consistently worsened by

19 standing, sitting, and walking for more than short periods. AR 1063, AR 1088-90, AR 2836, AR

1 2899, AR 2904, AR 3756, AR 3788, AR 3797, AR 3805, AR 4436. She described stabbing

lumbar and sacroiliac pain, numbness, tingling, and weakness in her lower extremities, along

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with repeated falls caused by sudden numbness in her legs, leading to a broken ankle and two

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broken legs. See, e.g., AR 816, AR 897, AR 988, AR 1034, AR 1045, AR 1082, AR 2185, AR

4 2882, AR 2895, AR 2901, AR 3121, AR 3825, AR 3826, AR 2832-38, AR 3888, AR 3980, AR

4028, AR 4087, AR 4525.

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Providers corroborated her reports, noting observed difficult flexing forward, tenderness

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in the lumbar area, and reliance on medication and frequent positions adjustments during

7 appointments. AR 1034, AR 1045, AR 1082, AR 2836, AR 2899. For example, on February 10,

2015, Dr. Losee, an examining psychologist whose opinion the ALJ gave “some weight,”

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observed:

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She exhibited frequent pain behaviors such as standing once, saying that she

was having a muscle spasm, leaning to the side with her right leg stretched out,

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shifting while seated, and taking pain medication toward the end.

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AR 1089-90. Dr. Loreli Thompson, Ph.D., examined plaintiff on April 13, 2016 and noted plaintiff

12 requested to sit on the couch instead of a chair due to her back pain, and eventually stretched

out lengthwise. AR 1180. Diagnostic testing corroborated plaintiff’s pain complaints: a February

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2017 lumbar MRI showed disc bulging with bilateral neural foraminal encroachment at L4-5, as

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well as L5-S1 facet arthropathy and right paracentral disc protrusion mildly displacing the S1

15 nerve root. AR 2088.

16 Defendant argues that the ALJ reasonably discounted this testimony by citing medical

findings of normal gait, intact sensation, full strength, and negative straight-leg raises. Dkt. 20,

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at 3 (citing to AR 642, 664, 768, 905, 908, 956, 990, 1047, 1051, 1053, 1056-57, 1064, 1084,

18 2157, 3277-78). Defendant also notes that imaging was characterized as showing only “mild to

moderate” degenerative changes. Id; AR 2088. In 2013, plaintiff had an MRI and consulting

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1 neurosurgeon Ryan Halpin, M.D remarked that plaintiff’s MRI “did not look too bad,” and

neurologist April McVey, M.D., observed discrepancies between complaints and exam results.

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AR 637, AR 797-98, AR 1527, AR 3276-79.

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Symptom testimony cannot be rejected solely because it is not affirmatively confirmed by

4 medical evidence. Bunnell, 947 F.2d at 345. Further, selective reliance on normal findings while

5 discarding abnormal ones does not meet the clear and convincing standard. Ghanim, 763 F.3d

at 1164.

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Here, the ALJ emphasized benign exams while downplaying evidence of paraspinal

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spasms, sacroiliac tenderness, and documented falls associated with radiculopathy.

8 Additionally, the consistent prescription of opiates, injections, and other invasive treatment

modalities by her medical providers corroborates plaintiff’s pain rather than undermines it.

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Scrogham v. Colvin, 765 F.3d 685, 700 (7th Cir. 2014).

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Along with her physical symptoms, plaintiff reported significant psychological symptoms

11 including anxiety and depression, as observed by Mr. Williams through her “flat affect” and

general demeanor. AR 4425, AR 4426, AR 4428, AR 4431, AR 4432, AR 4438, AR 4464, AR

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4466, AR 4468, AR 4484, AR 4490. She repeatedly stated that these psychological symptoms

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were compounded her physical limitations. AR 4431, AR 4434, AR 4440, AR 4443, AR 4480,

14 AR 4484, AR 4529. Although she has reprieves from her pain, she still reports a baseline. AR

4521, AR 4523. She cannot engage in activities of daily living without extreme pain and days of

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recovery time and simple tasks, such as showering or walking her dog, demand long periods of

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rest time. AR 4436, AR 4438-39, AR 4436, AR 4445, AR 4454, AR 4470, AR 4480, AR 4483,

17 AR 4490-91, AR 4497, AR 4505, AR 4515, AR 4533, AR 4535, AR 4537.

18 Defendant argues “plaintiff’s psychological complaints were inconsistent with the

longitudinal objective evidence” but reports of improvement in the context of mental health

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1 issues must be interpreted with an understanding of the patient’s overall well-being and the

nature of her symptoms. Dkt. 20, at 4; Garrison, 495 F.3d at 1017-1018.

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For example, the ALJ states:

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Further, she has reported an array of activities like going to concerts to

4 photograph or videotape, playing video games and games on her phone, going

out of town, driving, and going on a boat (Exs. 70F/1; 75F/3; 77F/28, 34, 100-

101; 104F/11, 49, 125, 137; Hearing Testimony).

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AR 3273.

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In terms of activities of daily living, the claimant reports that her symptoms and

resulting limitations make it difficult to prepare meals, take care of personal

7 needs, sleep, complete sleep, complete household chores, shop, and drive (Exs.

5E, 9E, 25E; Hearing Testimony). The claimant testified to good days and bad

days and reported that her sleep varied, depending on her pain level. On bad

8 days, she did not do anything for 3 to 4 days, including showering. She reported

that she tended to have 1 to 2 good days per week. By the January 2021

hearing, the claimant testified that she last drove a month before, but no longer

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drove due to problems with her neurostimulator. She testified that it was going to

be removed in February. The last time she did something social, she testified,

10 was 2 summers ago, before the pandemic, she went to a concert to videotape

with her tablet. She sat at 3-4 hour shows, but then she is “down for the week.”

At the November 2023 hearing, she alleged that she is mostly in bed, and will get

11 up to go to the bathroom, or sit in her backyard, but cannot sweep, mop, vacuum,

drive, or make it up the stairs.

12 AR 3275.

13 The ALJ may not discount testimony solely because it is inconsistent with daily activities

unless those activities contradict the claimant’s testimony or demonstrate transferable work

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skills. Orn, 495 F.3d at 639. Particular caution is warranted when assessing whether the daily

15 activities can contradict a plaintiff’s claims of disability. See e.g., Colvin, 759 F.3d at 1016 (9th

Cir. 2014); Smolen v. Chater, 80 F.3d 1273, 1284 n. 7. (9th Cir. 1996)( “The Social Security Act

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

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home activities may not be easily transferable to a work environment where it might be

18 impossible to rest periodically or take medication.”)(internal citation omitted); Vertigan v. Halter,

260 F.3d 1044, 1050 (9th Cir. 2001)(“[A]ctivities such as walking in the mall and swimming are

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1 not necessarily transferable to the work setting with regard to the impact of pain. A patient may

do these activities despite pain for therapeutic reasons, but that does not mean she could

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concentrate on work despite the pain or could engage in similar activity for a longer period given

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the pain involved.”). Plaintiff’s ability to perform basic activities intermittently, and often with

4 reported difficulty, does not undermine her testimony about persistent depression and

concentration problems, as well as her credited allegations of severe pain.

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As for malingering, the ALJ concluded “given the overall lack of objective evidence to

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support the level of pain she alleges, her inconsistent presentations that has favored exhibiting

7 greater impairment to her pain doctors, along with other inconsistencies discussed further

below, the undersigned finds the evidence by a preponderance establishes that the claimant

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has malingered for secondary gain.” AR 3287. But the record contains no treating or examining

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provider opinion diagnosing malingering or attributing plaintiff’s impairments to substance

10 abuse. The ALJ, a non-medical adjudicator, lacked the clinical foundation for assessing whether

functional limitations were caused by DAA rather than underlying medical impairments.

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Consequently, it is impossible to determine what portion of plaintiff’s pain and limitations the ALJ

12 erroneously attributed to DAA versus documented medical impairments.

13 Because the ALJ’s analysis does not identify evidence of malingering, is not qualified to

assess whether limitations should or should not be attributed to DAA and does not distinguish

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DAA concerns from limitations discounted for other credibility reasons, the Court cannot

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meaningfully review whether the decision applied the correct legal standard or was supported

16 by substantial evidence. Thus, a remand is warranted.

17 3. Whether the ALJ articulated legally sufficient reasons to reject the opinion of Dr.

Ken Pexton, M.D., Nurse Monica Hallak, ARNP, Dr. Kimberly Wheeler, Ph.D., and

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Robert Williams, BA, CAAR

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1 Plaintiff filed her applications prior to March 27, 2017, therefore under the applicable

regulations, an ALJ must provide “clear and convincing” reasons to reject the uncontradicted

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opinions of an examining doctor, and “specific and legitimate” reasons to reject the contradicted

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opinions of an examining doctor. See Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995).

4 • Dr. Ken Pexton, M.D.

5 Plaintiff argues the ALJ improperly discounted treating pain specialist Dr. Pexton’s

opinion without substantial evidence, relying on cherry-picked inconsistencies while failing to

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appreciate the longitudinal nature of his treating relationship and the objective and subjective

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evidence supporting his findings. Dkt. 15, at 8-16. Defendant argues that the ALJ gave valid

8 reasons not to credit Dr. Pexton’s medical opinion based on inconsistencies with her

presentation to other sources, insufficient explanation, and objective evidence for his opinions,

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and because opinions from state agencies consultants were more persuasive and consistent

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with the longitudinal record. Dkt. 20, 13-16

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Dr. Pexton, a medical doctor specializing in pain management, and his colleagues at the

12 Peninsula Pain Clinic, treated plaintiff for several years, and Dr. Pexton tracked the findings and

progress notes at the pain clinic, as well as the progress notes, records, and referrals. See AR

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1024-77, AR 1078-87, AR 1093-94, AR 1186-1308, AR 1350-1479, AR 1491-1503, AR 2081-

14 82, AR 2158-97, AR 2536-87, AR 2625-49, AR 2720-51, AR 2899-42, AR 2943-46. Dr. Pexton

authored two Medical Source Statements dated May 11, 2017 and June 20, 2017. AR 1480, AR

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2083-85. In the June statement, he diagnosed “chronic pain stemming from chronic low back

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pain with radicular symptoms, primarily on the right.” AR 1480. Based on years of clinical

17 evaluations, treatment history, and plaintiff’s consistent reports of pain, Dr. Pexton determined

that, although he is “rarely in favor of disability for the patient[s he sees]…,” plaintiff had “tried

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hard for years,” complied with treatment, and failed to achieve adequate relief, making her an

19 exception. AR 1480.

1 In May 2017, Dr. Pexton opined plaintiff could sit for only 30 minutes at a time, stand for

5 minutes at a time, and would have to take breaks by walking, and go off task 30% of the time.

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AR 2083-85. These limitations mirrored plaintiff’s reported daily functioning, including her

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testimony that she spends most of her time in bed on bad days, cannot sweep, mop, vacuum, or

4 drive, and can only tolerate social activities at the cost of days of recovery. AR 3363.

5 Plaintiff’s treatment record with Dr. Pexton included extensive non-surgical interventions,

such as chiropractic treatment, massage therapy, TENS unit use, physical therapy, heat

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therapy, facet injections, trigger point injections, epidural steroid injections, radiofrequency

7 ablation, and sacroiliac joint injections, as well as two separate spinal cord stimulator implants.

AR 1024, 1480. Although these measures sometimes “helped with the pain,” they could not

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provide meaningful, sustained relief. Id. Plaintiff was also unable to take NSAIDs because of a

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confirmed allergic reaction, which her primary care physician noted “eliminates a vast portion of

10 therapy.” AR 894, AR 1419, AR 3138.

11 The ALJ gave Dr. Pexton’s opinion “little weight,” stating that it was unsupported by

objective evidence, inconsistent with the record as a whole, and based on a “fill-in-the-blank”

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form without explanation. AR 3290.

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The ALJ stated that if Dr. Pexton had reviewed the full record, he would have

14 reconsidered prescribing high doses of narcotics and issued different opinions. AR 3290. Such

speculation constitutes an improper substitution of lay judgment for that of a medical

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professional. See Scrogham v. Colvin, 765 F.3d 685, 701 (7th Cir. 2014) (ALJ improperly

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substituted own opinion for medical judgment).

17

While the ALJ emphasized normal or mild findings on certain exams — such as normal

18 gait, intact motor strength, and negative straight leg raises — he did not adequately consider

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1 evidence showing an objective basis for plaintiff’s radicular pain. AR 2920, AR 2932, AR 2950.

For example, a February 2017 lumbar myelogram revealed:

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1. At L4–5: small to moderate concentric broad-based disc bulging with bilateral far lateral

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extension, causing mild bilateral neural foraminal encroachment, and bilateral moderate-

4 to-severe facet arthropathy (right greater than left);

5 2. At L5–S1: right paracentral focal disc protrusion causing mild mass effect on the right

lateral recess and mildly displacing the right S1 nerve root.

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AR 2088. Plaintiff asserts “a mild displacement of a nerve root does not necessarily

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correspond to mild pain” and must be assessed by a pain specialist like Dr. Pexton. Dkt. 15, at

8 10. Dr. Pexton’s opinion was corroborated by ARNP Hallak, a colleague in the same clinic, who

described similar limitations and pain-related symptoms. AR 2943-46.

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The ALJ also failed to reconcile Dr. Pexton’s opinions with plaintiff’s consistent reports of

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both physical and psychological symptoms. Edlund v. Massanari, 253 F.3d 1152, 1159 (9th

11 Cir.2001) (“But an ALJ does not provide clear and convincing reasons for rejecting an

examining physician's opinion by questioning the credibility of the patient's complaints where the

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doctor does not discredit those complaints and supports his ultimate opinion with his own

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observations.”).

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Furthermore, the opinions of the state agency consultants Dennis Koukol, M.D., Norman

15 Staley, M.D., J.D. Fitterer, M.D., and Howard Platter, M.D. should not have been given more

weight than Dr. Pexton, who was the primary treating physician of record, coupled with treating

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ARNP Halak and the treatment records established by the Peninsula Pain Clinic. 20 C.F.R. §

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404.1527; Ryan v. Comm’r of SSA, 528 F.3d 1194, 1098 (9th Cir. 2008) (““If a treating or

18 examining doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject it

by providing specific and legitimate reasons that are supported by substantial evidence”)

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1 (internal citations omitted); AR 3287-88, AR 3290. The reviewers’ opinions relied on the same

imaging as Dr. Pexton, and the conclusions of a non-examining physician are not substantial

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evidence where the non-examining physician uses the same findings as a treating physician but

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comes to different conclusions. Orn, 495 F.3d at 632.

4 Defendant asserts Plaintiff misinformed her treating pain physician, Dr. Pexton, by

5 reporting to Dr. Pexton that consulting neurosurgeon Alex Mohit, M.D. had offered surgery,

which plaintiff said she did not want to undergo. Dkt. 20, at 6 (citing AR 1206, AR 3278).

6

Defendant argues this alleged misrepresentation coincided with plaintiff’s request for increased

7 opiate dosage, suggesting an exaggeration of symptoms to obtain narcotic medications. Dkt.

20, at 6-7.

8

The record shows this alleged miscommunication stems from a discrepancy between

9

plaintiff’s report to Dr. Pexton and Dr. Mohit’s actual clinical notes. When plaintiff saw Dr. Mohit

10

in November 2014, he explicitly concluded that “she would not benefit from surgical

11 intervention,” and recommended “she continue with conservative measures and symptomatic

management.” AR 1085. Yet, in a February 2016 visit with Dr. Pexton, plaintiff stated that Dr.

12

Mohit had offered surgery with a “50/50” chance of improvement and “did not feel these odds

13 were good enough to go through with that surgery.” AR 1206. In a November 2014 visit, Dr.

Pexton had also explicitly stated, “she did see Dr. Mohit of neurosurgery…[h]e did not think

14

surgery was warranted at this time.” AR 1024

15

Given that surgical outcomes were discussed in general terms, the ALJ’s finding is not

16

supported by substantial evidence. See AR 1084-85 (Dr. Mohit: “I had a long discussion with

17 her in regards to the natural history of this condition and treatment options.”). Plaintiff argues

that, in any event, this misreporting did not seem intentional or deceptive, just a

18

misunderstanding perhaps, and Dr. Pexton did not rely on it. Dkt. 15, at 7-8. Dr. Pexton’s

19

1 February 2016 note reflects his treatment decisions focused primarily on plaintiff’s reporting pain

levels and functioning, and not on Dr. Mohit’s surgical assessment. AR 1206.

2

Therefore, although the ALJ characterized this inconsistency as undermining plaintiff’s

3

credibility, the Court finds that there is not substantial evidence in the record that plaintiff

4 intentionally misled her providers to obtain opioids. Accordingly, the alleged misreporting does

5 not support the ALJ’s discounting of either Dr. Pexton’s evaluation, or of plaintiff’s overall

credibility. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (The ALJ must provide specific,

6

cogent reasons supported by substantial evidence for discounting claimant testimony).

7

In sum, the longitudinal treating relationship, consistent objective findings supporting

8 radicular pain, extensive failed treatments, corroborating provider opinions, and consistent

reports of physical and psychological limitations all support Dr. Pexton’s functional

9

assessments. The ALJ’s reliance on selective evidence and speculation about alternative

10

treatment choices does not constitute substantial evidence. The ALJ erred by failing to provide

11 specific, legitimate reasons to discount the opinion of Plaintiff’s long-term treating physician. The

record supports giving greater weight to Dr. Pexton’s opinion in evaluating Plaintiff’s functional

12

limitations.

13

• Nurse Monica Hallak, ARNP

14

Plaintiff argues the ALJ failed to properly evaluate the opinion of Monica Hallak, ARNP,

15 a treating nurse practitioner at the same pain management clinic where Dr. Pexton practiced.

Dkt. 15, at 12-13. Defendant argues the ALJ reasonably gave ARNP Hallak’s testimony less

16

weight due to the lack of objective support and reliance on plaintiff’s allegedly discredited self-

17

report. Dkt. 20, at 16.

18 ARNP Hallak completed a medical source statement on December 7, 2020, and opined

19 plaintiff had experienced debilitating chronic pain since 2013 that would significantly interfere

1 with her ability to perform full-time work. AR 2943-46. She stated plaintiff’s conditions would

cause her to be off task more than 30% of a typical workday, that she would need to lie down or

2

recline for pain relief, and that she would miss more than four days of work per month. AR 2945-

3

46. She also stated plaintiff’s symptoms were not expected to improve and that she had

4 complied with prescribed treatment, which included Hydrocodone, Oxycodone, Tramadol,

Methocarbamol, and Tizanidine. AR 2945.

5

The ALJ gave “low weight” to ARNP Hallak’s opinion, asserting that her assessment was

6

inconsistent with the objective evidence, overly reliant on plaintiff’s subjective complaints, and

7 the check-form did not provide enough information. AR 3290-91.

8 Because plaintiff filed her disability applications before March 27, 2017, nurse

practitioners like ARNP Hallak were considered “other medical sources,” not “acceptable

9

medical sources.” SSR 06-03p. Still, the ALJ was required to provide germane reasons to

10

discount such an opinion. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). In doing so,

11 the ALJ was also required to consider the factors laid out in SSR 06-03p, including the source’s

relationship with the claimant, consistency with other evidence, and supportability of the opinion.

12

ARNP Hallak had a longstanding treatment relationship with plaintiff, documented in pain

13

management records that span several years. See, e.g., AR 1024-1077, AR 1350-1479, AR

14 1491-1503, AR 2081-82, AR 2158-97. She treated plaintiff for complex chronic pain and

regularly reviewed objective imaging results and physical examinations. Her opinion was based

15

on direct clinical observation, longitudinal assessment, and plaintiff’s extensive treatment history

16

— including unsuccessful trials of physical therapy, chiropractic treatment, TENS units, spinal

17 injections, and two implanted spinal cord stimulators. AR 1024, 1480. The Ninth Circuit has also

held that check-box opinions from treating providers may not be rejected as conclusory if the

18

opinions are supported by treatment notes. Garrison v. Colvin, 759 F.3d 995, 1014 n.17 (9th Cir.

19 2014).

1 Contrary to the ALJ’s assertion, ARNP Hallak’s opinions did not solely depend on

plaintiff’s subjective complaints. The clinical notes reference pain behavior, physical limitations,

2

and ongoing medication management consistent with the chronic nature of plaintiff’s

3

impairments. The consistency of her opinion with that of Dr. Pexton, who is an acceptable

4 medical source at the same clinic, further supports its reliability.

5 The ALJ erred by discounting Hallak’s opinion without considering its alignment with the

longitudinal treatment evidence. Popa v. Berryhill, 872 F.3d 901, 907-08 (9th Cir. 2017) (holding

6

that ALJ erred by rejecting nurse practitioner’s opinion without germane reasons where the

7 opinion was consistent with the record and treating relationship). The treatment records all

come from Peninsula Pain Clinic, from ARNP Hallak, Dr. Pexton, and their referrals.

8

In sum, the ALJ failed to provide germane reasons supported by substantial evidence for

9

rejecting ARNP Hallak’s medical opinion. Her longitudinal treatment of plaintiff, consistency with

10

Dr. Pexton’s opinion, and reliance on objective and clinical findings warrant greater

11 consideration. The ALJ’s error in this regard was not harmless, as proper crediting of ARNP

Hallak’s opinion would potentially result in greater functional limitations than were reflected in

12

the RFC.

13

• Dr. Kimberly Wheeler, Ph.D.

14

As a procedural matter, defendant urges the Court to not address plaintiff’s arguments

15 surrounding the ALJ’s rejection of Dr. Wheeler’s medical opinions because plaintiff “did not

include this issue in her list of alleged errors on the first page of her opening brief….contrary to

16

this Court’s Scheduling Order that it ‘will not consider or rule on assignments of error that are

17

not listed in this section of the opening brief.’” Dkt. 20, at 18. Yet, the Ninth Circuit has not

18 declined to review issues raised by a party in similar circumstances, “so long as the issue is

19

1 developed in the body of the brief,” as it is in this case. Ballinger v. City of Oakland, 24 F.4th

1287, 1292, n. 1. (9th Cir. 2022).

2

The ALJ gave Dr. Wheeler’s opinions “some weight” but discounted her findings as

3

inconsistent with later treatment records and as being based on subjective complaints. AR

4 3294-96. Plaintiff argues the ALJ did not give sufficient reasons to reject Dr. Wheeler’s opinions,

5 and again references the ALJ’s use of DAA and Dr. Wheeler’s opinion. Dkt. 15, at 19-20.

Defendant argues that Dr. Wheeler’s opinions “were 1) inconsistent with plaintiff’s

6

activities like playing video games and attending concerts, 2) were inconsistent with the

7

routinely normal psychological findings in treatment settings, 3) were undermined by plaintiff’s

8 unreliable assertions to Dr. Wheeler that her substance use was in longstanding remission, and

4) were not as persuasive as other psychological opinions that that were consistent with the

9

longitudinal evidence.” Dkt 20, at 19.

10

On May 15, 2019, Dr. Wheeler performed a psychological consultative exam and found

11 plaintiff’s attitude and behavior were “gamy and histrionic,” her mood was “angry, sad, and

scared,” her affect was “labile in a Borderline pattern,” her concentration was “abraded with

12

pain.” AR 2287-88. Dr. Wheeler observed plaintiff’s focus on pain, depression, and anxiety, as

13

well as Borderline tendencies such as “[s]ing-song quality of voice, mocking, quick to express

14 resentment with sugar coated veneer of smiles. Comes across as insincere, would impair

worker and customer relationships.” AR 2284. Dr. Wheeler found plaintiff could not complete a

15

workday or perform within a schedule, and these limitations would persist beyond 12 months.

16

AR 2286.

17

On December 29, 2020, Dr. Wheeler performed her second mental status examination.

18 AR 3137-41. Again, Dr. Wheeler noted plaintiff’s affect was labile in a Borderline pattern and her

concentration was impaired by pain, and she continued to show Borderline Personality and

19

1 Somatic Symptom Disorder. AR 3134. She found plaintiff markedly limited overall and not able

to complete a normal workday, perform within a schedule, and adapt to routine work settings.

2

AR 3139. She found these impairments would continue 12 months or more. AR 3140.

3

Under the pre-2017 rules, Dr. Wheeler’s opinions are those of an examining

4 psychologist, a source entitled to more weight than non-examining consultants. Lester, 81 F.3d

5 at 830-31. The ALJ’s primary rationales, which include an alleged lack of record review, reliance

on plaintiff’s self-reports, and inconsistency with activity and other opinions, must be supported

6

by substantial evidence. AR 3294.

7

Here, the ALJ relied on inconsistencies in plaintiff’s substance use report to discount Dr.

8 Wheeler’s opinions. But the ALJ did not identify medical evidence showing how the alleged

inconsistency materially undermined her functional assessments. If the ALJ believed substance

9

use could have inflated the limitations, SSR 13-2 required a proper Bustamante two-step DAA

10

analysis, which was not performed.

11 Dr. Wheeler’s evaluations were grounded in direct observation and standardized mental

status examination findings; these are “objective measures” in the mental health context. Buck

12

v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017). The fact Dr. Wheeler had limited collateral

13

records does not by itself undermine her clinical observations, particularly where she twice

14 conducted independent examinations a year apart and reached consistent conclusions. AR

2287-88, AR 3137-41. The ALJ’s speculations that Dr. Wheeler would not have diagnosed

15

Somatic Symptom Disorder with more records is not a valid specific and legitimate reason, as it

16

is conclusory, speculative, and unsupported by medical evidence. AR 3294.

17

Playing video games and attending concerts are activities that do not clearly contradict

18 marked limitations in work-related functioning. An ALJ may only discount a claimant's testimony

19

1 based on daily activities that either contradict their testimony or that meet the threshold for

transferable work skills. Orn, 495 F.3d at 639.

2

Finally, the ALJ’s reliance on non-examining consultants over an examining

3

psychologist’s detailed findings requires more than a bare conclusion about consistency with the

4 longitudinal record. Id. at 632. Dr. Wheeler’s findings were supported by treating pain

5 management records from Dr. Pexton and ARNP Hallak, as discussed above, and later

counseling evidence from Mr. Williams, and are supported by the reviewing opinion of Dr.

6

Sanchez. AR 4391-4545, AR 2803-07. Thus, the ALJ did not articulate legally sufficient reasons

7 to reject Dr. Wheeler’s opinions.

8 • Robert Williams, BA, CAAR

9 Plaintiff argues the ALJ did not provide legally sufficient reasons to reject the July 21,

2020 opinion of Mr. Williams, who had seen plaintiff regularly since July 25, 2019. Dkt. 15, at

10

16-17; AR 2754-57. Mr. Williams assessed several preclusive limitations: plaintiff would be off-

11

task 30% of the workday, could not work without special supervision, and difficulty sustaining

12 regular two-hour segments of the workday. AR 2754. He also noted her pain significantly

affected her mental functioning, sometimes requiring multiple days of rest after exertions. AR

13

2757. She would be absent five days a month. Id. In explaining her absenteeism, Mr. Williams

14 states: “for each day spent out of the home conducting business, client must spend 2-3 days in

bed physically recuperating.” Id. In additional comments, Mr. Williams states: “client has spent

15

her entire life extremely physically active and productive. bThis enforced inactivity being largely

16

bed bound has induced depression and despair.” Id.

17

The ALJ acknowledged Mr. Williams’ treatment relationship but assigned little weight to

18 his opinion, reasoning that: (1) his check-box forms lacked specific information about the

impairments supporting the assessed limitations; (2) his statement that Plaintiff was “largely

19

1 bedbound” was inconsistent with evidence of greater functioning; (3) he lacked access to the full

hearing-level record; and (4) as an “other source,” his opinion was entitled to less weight than

2

those of acceptable medical sources whose findings were consistent with the overall record. AR

3

3295.

4 Plaintiff argues that these findings were based on extensive longitudinal contact,

5 corroborated by Dr. Wheeler’s examining psychologist opinions, and were consistent with

vocational expert testimony that such limitations would preclude competitive employment. Dkt.

6

15, at 16-17. Plaintiff further contends that the ALJ mischaracterized the statement that plaintiff

7 was largely bedbound noting that he instead described good days and bad days with activity

possible of good days and rest required on bad days. Id. Finally, plaintiff asserts the ALJ failed

8

to account for deterioration over time documented after the state agency reviews and Dr.

9

Losee’s opinion, which pre-dated Mr. Williams’ treatment. Id.

10

The ALJ was required to provide germane reasons to discount Mr. William’s opinion.

11 Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016). The first rationale, that the opinion was

presented on a check-box form without supporting explanation, can be germane if supported by

12

substantial evidence. Even so, here the record shows Mr. Williams had an ongoing treatment

13 relationship, and his forms and treatment notes reflected the clinical context of that relationship.

AR 2754-57, AR 3142-58. Check-box opinions from treating providers may not be rejected as

14

conclusory when supported by treatment notes. Garrison, 759 F.3d at 1014 n.17. Mr. Williams’

15

progress notes documented plaintiff’s mood instability, pain behaviors, and activity fluctuation,

16 which are relevant to the assessed off-task and absence limitations. See AR 4391-4545.

17 The ALJ’s second rational regarding plaintiff being “largely bedbound” being inconsistent

with the plaintiff’s activities mischaracterizes the record. Mr. Williams described both good and

18

bad days, noting that plaintiff could engage in activities on good days but required prolonged

19

1 rest on bad days. AR 2757. The records the ALJ identifies are daily activities that could be

performed on good days, and not down days.

2

The ALJ also discounted Mr. Williams’ opinion based on his status as an “other source”

3

and his lack of access to the full record. These are not, by themselves, germane reasons to

4 reject the opinion where the provider had a substantial treatment history, and the opinion is

5 consistent with other credited medical evidence. Popa v. Berryhill, 872 F.3d at 907-08 (holding

that ALJ erred by rejecting nurse practitioner’s opinion without germane reasons where the

6

opinion was consistent with the record and treating relationship). Mr. Williams’ findings are

7 consistent with Dr. Wheeler’s examining opinions and post-date the earlier state agency and Dr.

Losee reviews, potentially reflecting deterioration over time, a factor the ALJ did not address.

8

On this record, the ALJ’s reasons for discounting Mr. Williams’ opinion are not germane

9

and are not supported by substantial evidence.

10

4. Harmless Error

11

When analyzing whether an error is harmless, the Court must consider whether the error

12 was consequential to the resulting decision that plaintiff did not meet the criteria for disability

benefits. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (an error

13

would be considered harmless only if the Court concludes the error was irrelevant to the

14

nondisability finding).

15

Here, the ALJ committed harmful legal error and improperly used the effects of DAA to reject

16 opinion evidence and testimony without conducting a full review of all impairments, including

DAA. The ALJ also committed harmful error improperly rejecting plaintiff’s subjective symptom

17

testimony without clear and convincing reasons, as well not articulating legally sufficient reasons

18 to discount the opinions of treating and examining sources, including Dr. Pexton, ARNP Hallak,

19

1 Dr. Wheeler, and Mr. Williams. These errors were consequential to the resulting decision finding

plaintiff not disabled.

2

CONCLUSION

3

For these reasons, the Court concludes the ALJ committed harmful error and the

4

Commissioner’s decision is reversed and remanded for additional administrative proceedings.

5 On remand, the Commissioner is directed to: conduct a proper two-step Bustamante/SSR 13-2p

analysis by determining whether plaintiff is disabled considering all impairments, including

6

substance use, and if disability is established, conduct the materiality analysis required under

7 Bustamante v. Massanari, 262 F.3d 949, 955 (9th Cir. 2001) and SSR 13-2p.

8 In conducting the two-step analysis, the Commissioner shall re-assess plaintiff’s

subjective symptom testimony, considering the longitudinal records of pain behaviors, the 2017

9

MRI findings, consistent opioid, and injection treatments, and psychological symptoms; re-

10

evaluate the medical opinions of Dr. Pexton, ARNP Hallak, Dr. Wheeler, and Mr. Williams in

11 accordance with applicable treating and examining source standards, giving appropriate weight

to longitudinal records and objective findings; allow plaintiff to provide additional evidence; and,

12

obtain additional vocational expert testimony as needed.

13

14

Dated this 4th day of September, 2025.

15

A

16

Theresa L. Fricke

United States Magistrate Judge

17

18

19