Soliz v. Commissioner of Social Security Administration ( 2019 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Betty Jane Soliz, No. CV-18-01981-PHX-DWL 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff Betty Jane Soliz seeks review under 42 U.S.C. § 405(g) of the final decision 16 of the Acting Commissioner of Social Security (“Commissioner”), which denied her 17 application for disability benefits. For the following reasons, the Court finds that the 18 administrative law judge’s (“ALJ”) decision was based on reversible legal error and 19 remands for further proceedings. 20 Soliz is a 55-year-old female who previously worked as a correction officer, 21 warehouse worker, and document technician. In January 2012, Soliz filed an application 22 for disability benefits, alleging a disability onset date in December 2011. (A.R. 325-326.) 23 The claim was denied initially on July 3, 2012 (A.R. 177) and again upon reconsideration 24 on June 7, 2013 (A.R. 199). Soliz then filed a written request for hearing on July 5, 2013. 25 (A.R. 239-240.) On June 10, 2014 and June 17, 2014, she appeared and testified at a 26 hearing at which an impartial vocational expert also appeared and testified. (A.R. 42-120.) 27 On September 5, 2014, the ALJ issued a decision concluding Soliz wasn’t disabled within 28 the meaning of the Social Security Act. (A.R. 200-221.) Soliz requested the Appeals 1 Council review the decision, and on March 23, 2016, the Appeals Council granted her 2 request and remanded the case to the ALJ. (A.R. 222-227.) The ALJ conducted a new 3 hearing on December 15, 2016 (A.R. 121-159) and issued a decision again determining 4 Soliz wasn’t disabled (A.R. 14-38). Soliz requested review of the ALJ’s decision, but the 5 Appeals Council denied review on May 16, 2018. (A.R. 1-6.) At that point, the ALJ’s 6 decision became the Commissioner’s final decision. 7 LEGAL STANDARD 8 The Court addresses only the issues raised by the claimant in the appeal from the 9 ALJ’s decision. Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). “The ALJ is 10 responsible for determining credibility, resolving conflicts in medical testimony, and 11 resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), as 12 amended on reh’g (Aug. 9, 2001). The Court should uphold the ALJ’s decision “unless it 13 contains legal error or is not supported by substantial evidence.” Orn v. Astrue, 495 F.3d 14 625, 630 (9th Cir. 2007). “Substantial evidence is more than a mere scintilla but less than 15 a preponderance.” Id. Put another way, “[i]t is such relevant evidence as a reasonable 16 mind might accept as adequate to support a conclusion.” Id. (citation omitted). The Court 17 should uphold the ALJ’s decision “[w]here evidence is susceptible to more than one 18 rational interpretation,” but the Court “must consider the entire record as a whole and may 19 not affirm simply by isolating a specific quantum of supporting evidence.” Id. (citations 20 and internal quotation marks omitted). 21 “[H]armless error principles apply in the Social Security Act context.” Molina v. 22 Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). “[A]n ALJ’s error is harmless where it is 23 inconsequential to the ultimate nondisability determination.” Id. (citations and internal 24 quotation marks omitted). The Court must “look at the record as a whole to determine 25 whether the error alters the outcome of the case.” Id. Importantly, however, the Court may 26 not uphold an ALJ’s decision on a ground not actually relied on by the ALJ. Id. at 1121. 27 To determine whether a claimant is disabled for purposes of the Social Security Act, 28 the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the 1 burden of proof on the first four steps, and the burden shifts to the Commissioner at step 2 five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ 3 determines whether the claimant is engaging in substantial gainful activity. 20 C.F.R. 4 § 404.1520(a)(4)(i). If so, the claimant is not disabled and the inquiry ends. Id. At step 5 two, the ALJ determines whether the claimant has a “severe” medically determinable 6 physical or mental impairment. Id. § 404.1520(a)(4)(ii). If not, the claimant is not disabled 7 and the inquiry ends. Id. At step three, the ALJ considers whether the claimant’s 8 impairment or combination of impairments meets or medically equals an impairment listed 9 in Appendix 1 to Subpart P of 20 C.F.R. pt. 404. Id. § 404.1520(a)(4)(iii). If so, the 10 claimant is automatically found to be disabled. Id. If not, the ALJ proceeds to step four. 11 At step four, the ALJ assesses the claimant’s residual functional capacity (“RFC”) and 12 determines whether the claimant is capable of performing past relevant work. Id. 13 § 404.1520(a)(4)(iv). If so, the claimant is not disabled and the inquiry ends. Id. If not, 14 the ALJ proceeds to the fifth and final step, which addresses whether the claimant can 15 perform any other work based on the claimant’s RFC, age, education, and work experience. 16 Id. § 404.1520(a)(4)(v). If so, the claimant is not disabled. Id. If not, the claimant is 17 disabled. 18 BACKGROUND 19 At step one, the ALJ determined that Soliz met the insured status requirements of 20 the Social Security Act through September 30, 2017 and had not engaged in substantial 21 gainful activity since December 16, 2011. (A.R. 19.) At step two, the ALJ found that Soliz 22 had the following severe impairments: status post lap band procedure, opiate dependence, 23 hypertension, diverticulitis, fibromyalgia, opioid induced mood disorder, obesity, lumbar 24 degenerative disc disease, scoliosis, spondylosis, stenosis, cervical spondylosis, and right 25 medial epicondylitis status post right knee arthroscopy. (A.R. 20.) At step three, the ALJ 26 determined that Soliz didn’t have an impairment or combination of impairments that meets 27 or medically equals the severity of a listed impairment. (A.R. 20-22.) At step four, the 28 ALJ determined that Soliz had the RFC to perform light work, except that she couldn’t 1 have any exposure to hazards, such as moving machinery or unprotected heights, she 2 couldn’t have any public contact, and she could only have occasional contact with 3 coworkers and supervisors. (A.R. 22-28.) The ALJ found Soliz wasn’t capable of 4 performing her past relevant work but could perform the occupations of 5 cleaner/housekeeper, small parts assembler, and garment handler. (A.R. 28-29.) 6 In her opening brief, Soliz argues the ALJ erred by failing to: (1) provide reasons 7 for rejecting the opinions of the state agency medical consultants; (2) consider whether 8 carpal tunnel syndrome was a severe impairment and/or include carpal tunnel syndrome- 9 related limitations in her RFC; and (3) adequately explain how she concluded Soliz could 10 perform light work. Soliz asks the Court to remand for reconsideration. (Doc. 12.) 11 For the reasons that follow, the Court agrees the ALJ committed reversible legal 12 error when considering Soliz’s limitations caused by carpal tunnel syndrome and when 13 determining Soliz could perform light work. The Court also acknowledges the ALJ 14 committed error when rejecting the State agency medical consultants’ opinions, but this 15 error was harmless. 16 DISCUSSION 17 I. Whether The ALJ Committed Reversible Error By Rejecting The State Agency Medical Consultants’ Opinions 18 Soliz argues the ALJ erred by failing to give reasons for rejecting the opinions of 19 two state agency medical consultants. (Doc. 12 at 10.) First, Mary Downs, Ph.D, opined 20 that Soliz can carry out simple instructions, sustain a routine, and make simple work-related 21 decisions. (A.R. 174.) Dr. Downs also determined Soliz would have difficulty dealing 22 with workplace changes and Soliz would do better in a job in which tasks were static and 23 changes could be explained. (Id.) Next, Stephen Fair, Ph.D, determined Soliz could 24 perform simple, unskilled work. (A.R. 196.)1 25 “[A]dministrative law judges must consider findings of State agency medical and 26 27 1 Soliz, in her brief, ascribes this medical opinion to L.A. Woodard, D.O. But Dr. 28 Woodard opined on Soliz’s physical limitations. (A.R. 192-194.) The Court assumes Soliz intended to assign error to the ALJ’s failure to consider Dr. Fair’s opinion. 1 psychological consultants . . . as opinion evidence . . . .” Chavez v. Astrue, 699 F. Supp. 2 2d 1125, 1136 (C.D. Cal. 2009) (citation omitted). This means that ALJs “may not ignore 3 these opinions and must explain the weight given to the opinions in their decisions.” S.S.R. 4 96–6p, 1996 WL 374180, *2 (S.S.A.). 5 Here, the ALJ acknowledged the opinions of the state agency medical consultants 6 only at step three: “[T]he undersigned notes that no State agency psychological consultant 7 concluded that mental listing is medically equaled.” (A.R. 22.) However, the ALJ didn’t 8 discuss (much less reject) the mental limitations expressed by Dr. Downs and Dr. Fair when 9 determining Soliz’s RFC. This was a potentially significant omission because both doctors 10 appeared to opine that Soliz can only perform simple, unskilled work, yet the ALJ didn’t 11 expressly incorporate such a limitation into the RFC. (“Light work” isn’t necessarily the 12 same thing as “simple, unskilled work.”) This was error. To the extent the ALJ may have 13 disagreed with those opinions, the ALJ was required to explain why. In the Social Security 14 context, disagreement can’t permissibly be inferred from silence. 15 Nevertheless, an error can’t provide an independent reason to remand unless the 16 error was harmful. Molina, 674 F.3d at 1115 (“[H]armless error principles apply in the 17 Social Security Act context.”). And Soliz acknowledges that, “[a]s the ALJ’s decision 18 stands, failure to consider these opinions is harmless because . . . the jobs described by the 19 ALJ were simple, unskilled jobs.” (Doc. 12 at 11.) Therefore, the ALJ’s failure to consider 20 the limitations expressed by Dr. Downs and Dr. Fair, although erroneous, doesn’t provide 21 a basis for remand. 22 II. Whether The ALJ’s Consideration of Soliz’s Carpal Tunnel Syndrome Was Reversible Error 23 24 A. The ALJ’s Decision 25 The ALJ’s discussion of Soliz’s carpal tunnel syndrome is sparse. At step two, the 26 ALJ omitted carpal tunnel syndrome from the list of “severe” impairments without any 27 mention of the ailment. (A.R. 20.) At step four, the ALJ acknowledged that Soliz claimed 28 “she had numbness in her hands.” (A.R. 25.) The ALJ also recognized that an “EMG 1 [Electromyogram test] showed bilateral median neuropathy at or distal to the wrist (as in 2 carpal tunnel syndrome), moderate in degree electrically on left and mild on the right side.” 3 (Id., citing A.R. 1307.) Despite these acknowledgments, the ALJ didn’t include any 4 limitations from Soliz’s carpal tunnel syndrome in the RFC, finding instead “[t]he 5 claimant’s course of treatment . . . in combination with the object[ive] records are not 6 consistent [with] extreme limitations as asserted by the claimant.” (A.R. 25.) 7 B. The Parties’ Arguments 8 Soliz argues the ALJ erred in two ways with regard to evaluating her symptoms 9 from carpal tunnel syndrome. First, Soliz contends the ALJ should have determined that 10 her carpal tunnel syndrome was a “severe impairment” at step two. (Doc. 12 at 11-13.) 11 Second, Soliz asserts the ALJ didn’t properly consider her limitations from carpal tunnel 12 syndrome and should have included those limitations in her RFC. (Id.) 13 The Commissioner responds that any error in step two is harmless because “the ALJ 14 decided step two in Plaintiff’s favor.” (Doc. 14 at 3.) The Commissioner doesn’t address 15 Soliz’s other argument concerning the ALJ’s alleged failure to include her limitations from 16 carpal tunnel syndrome in the RFC. 17 C. Whether The ALJ Erred By Not Determining Carpal Tunnel Syndrome To Be A “Severe” Impairment 18 19 Ninth Circuit law is not a model of clarity concerning how to evaluate claims of 20 step-two error. Some cases suggest that, although it is error for an ALJ to fail to 21 characterize a particular impairment as “severe” during step two, the error can be 22 disregarded as harmless if the ALJ properly addresses the impairment during later steps. 23 See, e.g., Lewis v. Astrue, 498 F. 3d 909, 911 (9th Cir. 2007) (“Even assuming that the ALJ 24 erred in neglecting to list the bursitis at Step 2, any error was harmless. . . . The decision 25 reflects that the ALJ considered any limitations posed by the bursitis at Step 4. As such, 26 any error that the ALJ made in failing to include the bursitis at Step 2 was harmless.”); 27 Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005) (“[T]he ALJ did not find that Burch’s 28 obesity was a ‘severe’ impairment. . . . Assuming without deciding that this omission 1 constituted legal error, it could only have prejudiced Burch in step three (listing impairment 2 determination) or step five (RFC) because the other steps, including this one, were resolved 3 in her favor.”). Other decisions suggest that a claimant can’t complain about an ALJ’s 4 failure to identify a particular impairment as “severe” during step two so long as the ALJ 5 determined the claimant also had other impairments that so qualify. Buck v. Berryhill, 869 6 F.3d 1040, 1048-49 (9th Cir. 2017) (“Buck misunderstands the purpose of step two in the 7 analysis. Step two is merely a threshold determination meant to screen out weak claims. 8 It is not meant to identify the impairments that should be taken into account when 9 determining the RFC. . . . Moreover, step two was decided in Buck’s favor after both 10 hearings. He could not possibly have been prejudiced.”) (citation omitted). 11 Given these difficult-to-reconcile precedents, the Court declines to definitively 12 resolve whether the ALJ “erred” during step two by failing to characterize Soliz’s carpal 13 tunnel syndrome as a severe impairment. The key issue is whether the ALJ properly 14 evaluated the evidence and testimony concerning that condition during later steps and 15 factored that condition into the RFC. 16 D. Whether The ALJ Erred When Considering Carpal Tunnel Syndrome At Step Four 17 18 At step four, the ALJ acknowledged that Soliz complained of “numbness in her 19 hands” caused by carpal tunnel syndrome. (A.R. 25.) The ALJ seems to have implicitly 20 rejected this symptom testimony by failing to include any limitations in Soliz’s RFC related 21 to her hand-numbness. 22 1. Legal Standard 23 “In assessing the credibility of a claimant’s testimony regarding subjective pain or 24 the intensity of symptoms, the ALJ engages in a two-step analysis.” Molina, 674 F.3d at 25 1112 (citation omitted). “First, the ALJ must determine whether there is objective medical 26 evidence of an underlying impairment which could reasonably be expected to produce the 27 pain or other symptoms alleged.” Id. (citations and internal quotation marks omitted). 28 Here, the ALJ determined Soliz satisfied this first step, noting that Soliz’s EMG showed 1 “median neuropathy at or distal to the wrist (as in carpal tunnel syndrome).” (A.R. 25. See 2 also A.R. 23 [“[T]he undersigned finds that the claimant’s medically determinable 3 impairments could reasonably be expected to produce the above alleged symptoms . . . .”].) 4 If the first step is satisfied, and “there is no evidence of malingering, then the ALJ 5 must give specific, clear and convincing reasons in order to reject the claimant’s testimony 6 about the severity of the symptoms.” Molina, 674 F.3d at 1112 (citations and internal 7 quotation marks omitted). Here, the ALJ didn’t find evidence of malingering, so she was 8 required to provide specific, clear and convincing reasons to reject Soliz’s allegation that 9 carpal tunnel syndrome caused numbness in her hands. 10 To satisfy the “specific, clear and convincing” standard, “the ALJ must identify 11 what testimony is not credible and what evidence undermines the claimant’s complaints.” 12 Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014) (citation omitted); see also Holohan 13 v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001) (“[T]he ALJ must specifically identify 14 the testimony she or he finds not to be credible and must explain what evidence undermines 15 the testimony.”). “General findings are insufficient,” Burrell, 775 F.3d at 1138, and 16 “providing a summary of medical evidence in support of a residual functional capacity 17 finding is not the same as providing clear and convincing reasons for finding the claimant’s 18 symptom testimony not credible,” Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 19 2015). 20 2. Analysis 21 Here, the ALJ’s reasons for rejecting Soliz’s symptom testimony about the 22 numbness in her hands aren’t specific, clear or convincing. The first reason provided by 23 the ALJ for rejecting Soliz’s overall symptom testimony was that her “course of treatment” 24 wasn’t consistent with her alleged limitations. (A.R. 25.) But it’s unclear why Soliz’s 25 course of treatment could be said to undermine her allegations of hand-numbness. The 26 ALJ noted that Soliz engaged in “conservative” pain treatment and “her pain medications 27 work very well and provide relief” (A.R. 24), but this pain treatment was for Soliz’s back 28 and knee pain, not carpal tunnel syndrome. The ALJ simply didn’t refer to any evidence 1 in the record related to Soliz’s course of treatment for carpal tunnel syndrome. 2 The ALJ’s second reason for rejecting Soliz’s symptom testimony was that “the 3 object[ive] records are not consistent” with Soliz’s alleged limitations. (A.R. 25.) But the 4 only medical records cited by the ALJ pertaining to Soliz’s hands tend to confirm that she 5 does have carpal tunnel syndrome. Thus, the ALJ erred because she failed to provide any 6 reasons, supported by evidence, for rejecting Soliz’s hand-numbness testimony. 7 This error only provides a basis for remand if it wasn’t “harmless.” Molina, 674 8 F.3d at 1115. Here, the error committed by the ALJ wasn’t harmless, and thus provides a 9 basis for remand. At step five, the ALJ determined Soliz could perform three occupations: 10 (1) cleaner/housekeeper; (2) small parts assembler;2 and (3) garment folder. (A.R. 29.) 11 Each of these occupations requires significant use of the hands. Cleaner, Housekeeping, 12 DOT 323.687-014, available at 1991 WL 672783 (requiring frequent reaching and 13 handling and occasional fingering); Assembler, Small Products II, DOT 739.687-030, 14 available at 1991 WL 680180 (requiring constant reaching, handling, and fingering); 15 Garment Folder, DOT 789.687-066, available at 1991 WL 681266 (requiring constant 16 reaching, handling, and fingering). If the ALJ credited as true Soliz’s testimony about the 17 numbness in her hands, the ALJ could have determined she couldn’t perform some (or all) 18 of those occupations. Thus, the ALJ’s failure to provide specific, clear and convincing 19 reasons for rejecting Soliz’s carpal tunnel syndrome-related symptom testimony provides 20 a basis for remand. 21 … 22 … 23 24 2 Although the ALJ determined Soliz could perform the occupation of “small parts assembler,” the ALJ cited the Dictionary of Occupational Titles (“DOT”) number 209.587- 25 034. (A.R. 29.) In fact, this DOT number refers to the position of “Marker,” which is described in part as “Marks and attaches price tickets to articles of merchandise to record 26 price and identifying information: Marks selling price by hand on boxes containing merchandise, or on price tickets. Ties, glues, sews, or staples price ticket to each article.” 27 See 1991 WL 671802. The Court assumes the ALJ determined Soliz could perform the occupation of “small parts assembler,” with a DOT number of 739.687-030, because this 28 occupation was explicitly referenced in a previous hearing by the vocational expert (A.R. 103). 1 III. Whether The ALJ Committed Reversible Error When Determining Soliz Could Perform Light Work 2 3 Soliz argues the ALJ erred in three ways when determining she could perform light 4 work. First, Soliz contends the ALJ improperly rejected the medical opinion of her treating 5 physician, Dr. Ehab Abdalah, M.D. (Doc. 12 at 14.) Second, Soliz asserts the ALJ 6 shouldn’t have determined she could perform light work in light of Soliz’s symptom 7 testimony regarding her leg pain. (Id. at 16.) Third, Soliz argues the ALJ erred by 8 disregarding the lay witness testimony of Mary Bernardez and Pat Tapia. (Id. at 17.) 9 A. Whether The ALJ Improperly Rejected Dr. Abdalah’s Opinion 10 1. Dr. Abdalah’s Opinion 11 Dr. Abdalah, Soliz’s treating physician, opined that Soliz doesn’t have the ability to 12 hold a job because of her “limited mobility and [lack of] strength to even perform the 13 smallest task.” (A.R. 27, citing A.R. 816.) He also opined that Soliz should “keep away 14 from any strenuous work including light duty day to day task[s].” (A.R. 817.) 15 Additionally, he opined that, in an eight-hour day, Soliz could sit fewer than two hours and 16 stand and walk fewer than two hours. (A.R. 27, citing A.R. 828-35.) 17 2. Legal Standard 18 Although “[t]he ALJ must consider all medical opinion evidence,” Tommasetti v. 19 Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008), there is a hierarchy among the sources of 20 medical opinions. Those who have treated a claimant are treating physicians, those who 21 examined but did not treat the claimant are examining physicians, and those who neither 22 examined nor treated the claimant are nonexamining physicians. Lester v. Chater, 81 F.3d 23 821, 830 (9th Cir. 1995). “As a general rule, more weight should be given to the opinion 24 of a treating source than to the opinion of doctors who did not treat the claimant.” Id. This 25 is because treating physicians have the advantage of in-person interaction and typically a 26 longer history of treatment than a claimant’s other doctors, and their “subjective 27 judgments . . . are important, and properly play a part in their medical evaluations.” 28 Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). See also 20 C.F.R. § 404.1527(c)(2) 1 (“Generally, we give more weight to medical opinions from your treating sources, since 2 these sources are likely to be the medical professionals most able to provide a detailed, 3 longitudinal picture of your medical impairment(s) and may bring a unique perspective to 4 the medical evidence that cannot be obtained from the objective medical findings alone or 5 from reports of individual examinations, such as consultative examinations or brief 6 hospitalizations.”). 7 Given this hierarchy and a treating physician’s position at the top if it, an ALJ may 8 reject uncontroverted evidence from that source “only for ‘clear and convincing’ reasons.” 9 Lester, 81 F.3d at 830. Also, “[e]ven if the treating doctor’s opinion is contradicted by 10 another doctor, the [ALJ] may not reject this opinion without providing ‘specific and 11 legitimate reasons’ supported by substantial evidence in the record for so doing.” Id. 12 (citation omitted). Where “the opinion of a nontreating source is based on independent 13 clinical findings that differ from those of the treating physician, the opinion of the 14 nontreating physician may itself be substantial evidence.” Andrews v. Shalala, 53 F.3d 15 1035, 1041 (9th Cir. 1995). An ALJ can satisfy this burden of providing specific and 16 legitimate reasons “by setting out a detailed and thorough summary of the facts and 17 conflicting clinical evidence, stating his interpretation thereof, and making findings.” 18 Magallanes v. Bowen, 881 F.2d 747, 751–55 (9th Cir. 1989). See also Embrey, 849 F.2d 19 at 421–22 (“The ALJ must do more than offer his conclusions. He must set forth his own 20 interpretations and explain why they, rather than the doctors’, are correct.”). 21 3. Analysis 22 The ALJ gave Dr. Abdalah’s opinions about Soliz’s physical impairments “no 23 significant weight.” (A.R. 27.) The ALJ didn’t identify any medical opinions, from other 24 sources, that contradicted Dr. Abdalah’s opinions. Thus, the ALJ was required to provide 25 “clear and convincing” reasons—a higher threshold than “specific and legitimate” 26 reasons—for discounting Dr. Abdalah’s opinions. Although this question presents a close 27 call, the Court concludes the ALJ met this burden. 28 1 The ALJ rejected Dr. Abdalah’s opinions in part because his treatment notes 2 contradicted those opinions. Specifically, although Dr. Abdalah opined that Soliz “no 3 longer retains the ability to hold a job due to her ‘limited mobility and strength to even 4 perform the smallest task’” (A.R. 27, citing A.R. 816), Dr. Abdalah’s “treatment notes 5 reveal normal strength, bulk, tone in muscles, and sensation” (A.R. 27, citing A.R. 860). 6 “A conflict between treatment notes and a treating provider’s opinions may constitute an 7 adequate reason to discredit the opinions of a treating physician . . . .” Ghanim v. Colvin, 8 763 F.3d 1154, 1161 (9th Cir. 2014). 9 B. Whether The ALJ Improperly Discounted Soliz’s Testimony About Her Leg Pain 10 1. The ALJ’s Decision 11 12 Although the ALJ’s decision isn’t a model of clarity, the Court discerns five reasons 13 why the ALJ discounted Soliz’s pain testimony: (1) earlier statements by Soliz contradict 14 her contention that her impairments prevent her from working; (2) Soliz’s “treatment for 15 pain has been conservative”; (3) medical records demonstrate that Soliz’s treatment for 16 pain improved her pain levels; (4) Soliz’s testimony “seems so extreme, as to appear 17 implausible”; and (5) the objective medical evidence isn’t consistent with the degree of 18 pain Soliz alleges she experienced. (A.R. 23-25.) 19 2. Analysis 20 Soliz argues the ALJ’s reasons for discounting her symptom testimony regarding 21 her leg pain weren’t sufficient. (Doc. 12 at 15-16.) As noted above, to reject a claimant’s 22 symptom testimony, the ALJ must first determine whether there’s “objective medical 23 evidence which could reasonably be expected to produce the pain or other symptoms 24 alleged.” Molina, 674 F.3d at 1112 (citation omitted). The ALJ determined that objective 25 medical evidence could produce the pain of which Soliz complained. (A.R. 23.) Thus, the 26 ALJ was obligated to provide “specific, clear and convincing reasons” for rejecting Soliz’s 27 symptom testimony. The Court concludes the ALJ met this standard. 28 1 The ALJ stated that although Soliz “alleged that her doctors told her to stop 2 working,” “the record reflects that [Soliz] stopped working due to a business related lay 3 off.” (A.R. 23.) This was a specific, clear and convincing reason to reject Soliz’s symptom 4 testimony. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (“[T]he ALJ stated that 5 she found Bruton’s subjective pain complaints not credible because, inter alia . . . Bruton 6 stated at the administrative hearing and to at least one of his doctors that he left his job 7 because he was laid off, rather than because he was injured . . . . These are sufficient 8 reasons for disregarding pain testimony . . . .”). Notably, in her reply brief, Soliz didn’t 9 attempt to rebut the Commissioner’s argument that the ALJ’s rejection of her symptom 10 testimony was permissible under Bruton (Doc. 14 at 5)—instead, Soliz merely argued that, 11 “[e]ven if the ALJ gave valid reasons for rejecting . . . Plaintiff’s allegations, this does not 12 mean that her RFC assessment is supported.” (Doc. 15 at 6.) 13 The ALJ also cited numerous medical records that seem to reflect a lower level of 14 pain than Soliz testified she was enduring. (A.R. 24-25.) The ALJ explained that “the 15 object[ive] records are not consistent [with] the extreme limitations as asserted by the 16 claimant.” (A.R. 25.) For example, the ALJ noted records where the objective medical 17 evidence showed that Soliz’s back issues were “mild” or “moderate.” (See, e.g., A.R. 24 18 [“An x-ray of her spine in 2014 revealed only mild degenerative disc disease.”]; id. [“An 19 MRI done in August 2014 showed . . . mild to moderate central spinal stenosis and mild 20 to moderate bilateral forminal narrowing . . . .”] id. [“An x-ray of the claimant’s lumbar 21 spine done in September 2015 showed only mild diffuse degenerative changes . . . .”].) 22 The Court agrees this objective medical evidence isn’t consistent with the amount of pain 23 Soliz was claiming to feel. This provided an additional specific, clear and convincing 24 reason for the ALJ to reject Soliz’s symptom testimony. 25 … 26 … 27 … 28 … 1 C. Whether The ALJ Improperly Rejected The Testimony Of Soliz’s Lay Witnesses 2 3 1. The Lay Testimony 4 Two lay witnesses submitted statements or testified on behalf of Soliz. Mary 5 Bernardez, Soliz’s friend, opined that Soliz can’t stand, sit, or walk at a steady pace for 6 more than 1-2 hours before having to lay down. (A.R. 1020.) Bernardez also claimed 7 Soliz “cannot stand for a long period of time without having to sit down and lay down.” 8 (A.R. 1021.) Further, she stated that Soliz “is unable to use her hands” and “cannot make 9 a fist.” (Id.) Patricia Tapia, Soliz’s sister, reported that Soliz couldn’t sit or stand for long 10 periods of time without experiencing pain. (A.R. 1015-1016.) 11 2. Analysis 12 Soliz argues the ALJ improperly disregarded the testimony of her two lay witnesses. 13 (Doc. 12 at 17.) The ALJ gave both opinions “little weight” because “they are lay opinions 14 based on casual observation, rather than objective medical [evidence] and testing.” (A.R. 15 27-28.) Furthermore, the ALJ explained “they are unpersuasive for the same reasons that 16 the claimant’s own allegations do not fully persuade the undersigned, observing that they 17 lack substantial support from objective findings in the record.” (Id.) 18 “[A]n ALJ must consider lay witness testimony concerning a claimant’s ability to 19 work.” Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (citations omitted). “If an 20 ALJ disregards the testimony of a lay witness, the ALJ must provide reasons ‘that are 21 germane to each witness,’” and these reasons must be specific. Id. (citations omitted). 22 The ALJ erred by rejecting the lay testimony of Bernardez and Tapia. The ALJ first 23 rejected the opinions because they are “lay opinions based on casual observation.” (A.R. 24 27-28.) But it’s not permissible to reject lay testimony because it’s lay testimony. Lay 25 testimony “is competent evidence” that must be considered. Bruce, 557 F.3d at 1115 26 (citation omitted). 27 The ALJ also rejected the lay testimony “for the same reasons that the claimant’s 28 own allegations do not fully persuade the undersigned.” (A.R. 28.) Although the Court 1 has concluded the ALJ didn’t err by rejecting Soliz’s symptom testimony—because Soliz 2 provided contradictory and incredible testimony concerning medical advice she had 3 supposedly received from a doctor and the objective medical evidence didn’t support the 4 degree of pain Soliz claimed to be suffering—these rationales don’t, standing alone, justify 5 the rejection of Bernardez’s and Tapia’s testimony concerning their personal observations 6 of Soliz. Thus, the Court must evaluate the sufficiency of the other reasons that the ALJ 7 provided for rejecting Soliz’s symptom testimony (which the ALJ incorporated by 8 reference in support of the decision to reject Bernardez’s and Tapia’s testimony). 9 The second reason provided by the ALJ for discounting Soliz’s testimony was that 10 Soliz had only engaged in “conservative” treatments. (A.R. 24.) “A conservative course 11 of treatment may discredit a claimant’s allegations of disabling symptoms.” O’Connor v. 12 Berryhill, 355 F. Supp. 3d 972, 985 (W.D. Wash. 2019). Here, however, it’s unclear what 13 about Soliz’s treatment was “conservative.” The ALJ recognized that Soliz was given 14 epidural injections and opioids to manage her pain. (A.R. 24.) Neither of these treatment 15 courses appears to be “conservative.” Garrison v. Colvin, 759 F.3d 995, 1015 n.20 (9th 16 Cir. 2014) (“[W]e doubt that epidural steroid shots to the neck and lower back qualify as 17 ‘conservative’ medical treatment.”); O’Connor, 355 F. Supp. 3d at 985 (“[P]ain treatment 18 with opioid analgesics generally is not considered conservative.”). Furthermore, the ALJ 19 didn’t provide any explanation for why she characterized those treatments to be a 20 “conservative” response to the pain allegedly suffered by Soliz. Revels v. Berryhill, 874 21 F.3d 648, 667 (9th Cir. 2017) (finding the ALJ erred by rejecting claimant’s symptom 22 testimony where “[t]he ALJ provided no explanation why he deemed th[e] treatment 23 ‘conservative’ for [the ailment at issue]”). 24 The third reason provided by the ALJ for discounting Soliz’s testimony was that 25 certain treatments had improved Soliz’s pain symptoms. (A.R. 24 [“The claimant’s 26 treatment for pain has . . . controlled her symptoms . . . .”]; id. [“The record shows that her 27 pain medications work very well and provide relief.”]; id. [“The claimant has reported that 28 she gets pain relief with applying heat and medication.”]; id. [“The claimant also reported 1 pain relief with a series of epidural injections in 2015.”].) On the one hand, it’s true that 2 the records cited by the ALJ demonstrate that treatment diminished Soliz’s pain levels. But 3 some improvements are to be expected from treatment, and the ALJ didn’t explain why the 4 diminished pain levels reflected in the medical records were inconsistent with the “severe” 5 pain Soliz allegedly endured. Although some of the records cited by the ALJ indicate more 6 than minimal improvement from treatment (see, e.g., A.R. 877 [“pain is a 4 [and] 7 medication is working very well”]), other records cited by the ALJ suggest that Soliz 8 continued to experience significant pain even after having some improvement from 9 treatment (see, e.g., A.R. 667 [noting “pain meds does help,” yet also documenting Soliz’s 10 pain level as “8/10”]; A.R. 867 [stating “[m]edications are helping her with the pain” but 11 documenting a “9” on the pain scale]). Because the ALJ didn’t explain why the 12 improvements documented in the medical records undermined Soliz’s testimony about the 13 extent of her pain, the ALJ’s citation to those records wasn’t a valid basis for rejecting 14 Soliz’s testimony. 15 The fourth reason provided by the ALJ for discounting Soliz’s testimony was that 16 her “allegation of the complete inability to function seems so extreme, as to appear 17 implausible.” (A.R. 24.) In support of this reason, the ALJ cited Exhibit 6E/2. Exhibit 18 6E/2, however, isn’t a valid record citation—Exhibit 6E is only one page long. (A.R. 404.) 19 Thus, it’s not clear why the ALJ determined that Soliz’s testimony about her ability to 20 function “appear[s] implausible.” 21 Finally, as explained previously, the ALJ cited numerous medical records 22 suggesting Soliz was suffering from less pain than she claimed. (A.R. 24-25.) The Court 23 agrees this was a specific, clear and convincing reason for rejecting Soliz’s pain testimony. 24 However, an ALJ can’t discredit lay testimony merely because it isn’t supported by 25 medical evidence in the record. Bruce, 557 F.3d at 1116 (“Nor under our law could the 26 ALJ discredit her lay testimony as not supported by medical evidence in the record.”); 27 Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996) (“The rejection of the testimony of 28 Smolen’s family members because Smolen’s medical records did not corroborate her || fatigue and pain violates SSR 88-13, which directs the ALJ to consider the testimony of 2|| lay witnesses where the claimant’s alleged symptoms are unsupported by her medical || records.’’). 4 In sum, the only valid reasons the ALJ identified for rejecting Soliz’s symptom 5 || testimony were that (1) Soliz provided incredible testimony about being told by a doctor || to “stop” working due to her pain, when there was evidence that Soliz had actually been laid off for business-related reasons, and (2) the objective medical records weren’t 8 || completely consistent with Soliz’s testimony. Although the ALJ was entitled to reject 9|| Soliz’s testimony for these reasons, the ALJ couldn’t simply cross-reference these reasons || as the basis for rejecting Bernardez’s and Tapia’s testimony. Those witnesses’ testimony, after all, was based on their own personal observations of Soliz. 12 D. | Harmlessness Review 13 If the ALJ had credited as true Bernardez and Tapia’s lay testimony, the ALJ couldn’t have determined that Soliz could perform the occupations of cleaner/housekeeper, 15 small parts assembler, or garment folder. Thus, the ALJ’s error in rejecting their testimony 16 wasn’t harmless. IV. Scope of Remand 18 Soliz doesn’t request a remand for a calculation of benefits. Instead, she asks the 19 Court to vacate the ALJ’s decision and remand the matter so the ALJ can “consider the 20 evidence” the ALJ improperly rejected. (Doc. 12 at 18.) 71 Accordingly, IT IS ORDERED that the final decision of the Commissioner of 22 Social Security is vacated, and this case is remanded for further proceedings consistent 23 with this opinion. The Clerk shall enter judgment accordingly and terminate this case. 24 Dated this 30th day of August, 2019. 25 26 Qo 27 _ ful 28 Dominic W. Lanza United States District Judge -17-