(SS) Madrid v. Commissioner of Social Security ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LISA L. MADRID, Case No. 1:21-cv-00352-SAB 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING 13 v. PLAINTIFF’S SOCIAL SECURITY APPEAL 14 COMMISSIONER OF SOCIAL ORDER DIRECTING CLERK OF COURT TO SECURITY, RANDOMLY ASSIGN DISTRICT JUDGE 15 Defendant. (ECF Nos. 13, 17) 16 FOURTEEN DAY DEADLINE 17 18 I. 19 INTRODUCTION 20 Lisa L. Madrid (“Plaintiff”) seeks judicial review of a final decision of the Commissioner 21 of Social Security (“Commissioner” or “Defendant”) denying her application for disability 22 benefits pursuant to the Social Security Act. The matter is currently before the Court on the 23 parties’ briefs in support of summary judgment of this action, which were submitted, without 24 oral argument. For the reasons set forth below, the Court issues the following findings and 25 recommendations recommending Plaintiff’s social security appeal be granted. 26 / / / 27 / / / / / / 1 II. 2 BACKGROUND 3 A. Procedural History 4 On June 1, 2017, Plaintiff filed a Title II application for a period of disability insurance 5 benefits, alleging a period of disability beginning on November 27, 2016. (AR 157-58.) 6 Plaintiff’s application was initially denied on September 12, 2017, and denied upon 7 reconsideration on February 14, 2018. (AR 89-93, 98-102.) Plaintiff requested and received a 8 hearing before Administrative Law Judge Shiva Bozarth (the “ALJ”). Plaintiff appeared for a 9 hearing before the ALJ on November 14, 2019. (AR 36-62.) On April 1, 2020, the ALJ issued a 10 decision finding that Plaintiff was not disabled. (AR 17-32.) The Appeals Council denied 11 Plaintiff’s request for review on August 18, 2020. (AR 6-11.) 12 On March 8, 2021, Plaintiff filed this action for judicial review. (ECF No. 1.) On June 13 17, 2022, Defendant filed the administrative record (“AR”) in this action. (ECF No. 8.) On 14 September 29, 2022, Plaintiff filed an opening brief. (Pl.’s Opening Br. (“Br.”), ECF No. 13.) 15 On November 21, 2022, Defendant filed an opposition brief. (Def.’s Opp’n (“Opp’n”), ECF No. 16 17.) Plaintiff did not file a reply brief. 17 B. The ALJ’s Findings of Fact and Conclusions of Law 18 The ALJ made the following findings of fact and conclusions of law as of the date of the 19 decision, April 1, 2020: 20 1. The claimant meets the insured status requirements of the Social Security Act through 21 March 31, 2022. 22 2. The claimant has not engaged in substantial gainful activity since November 27, 2016, 23 the alleged onset date (20 CFR 404.1571 et seq.). 24 3. The claimant has the following severe impairments: degenerative disc disease, 25 degenerative joint disease of the bilateral hips, and Grave’s disease (20 CFR 26 404.1520(c)). 27 4. The claimant does not have an impairment or combination of impairments that meets or 1 Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526). 2 5. After careful consideration of the entire record, the undersigned finds that the claimant 3 has the residual functional capacity to perform the full range of light work as defined in 4 20 CFR 404.1567(b). 5 6. The claimant is capable of performing past relevant work as a caseworker. This work 6 does not require the performance of work-related activities precluded by the claimant’s 7 residual functional capacity (20 CFR 404.1565). 8 7. The claimant has not been under a disability, as defined in the Social Security Act, from 9 November 27, 2016, through the date of this decision (20 CFR 404.1520(f)). 10 (AR 22-28.) 11 III. 12 LEGAL STANDARD 13 A. The Disability Standard 14 To qualify for disability insurance benefits under the Social Security Act, a claimant must 15 show she is unable “to engage in any substantial gainful activity by reason of any medically 16 determinable physical or mental impairment1 which can be expected to result in death or which 17 has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 18 U.S.C. § 423(d)(1)(A). The Social Security Regulations set out a five-step sequential evaluation 19 process to be used in determining if a claimant is disabled. 20 C.F.R. § 404.1520;2 Batson v. 20 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1194 (9th Cir. 2004). The five steps in the 21 sequential evaluation in assessing whether the claimant is disabled are: 22 Step one: Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step 23 two. 24 25 1 A “physical or mental impairment” is one resulting from anatomical, physiological, or psychological abnormalities that are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3). 26 2 The regulations which apply to disability insurance benefits, 20 C.F.R. §§ 404.1501 et seq., and the regulations which apply to SSI benefits, 20 C.F.R. §§ 416.901 et seq., are generally the same for both types of benefits. 27 Accordingly, while Plaintiff seeks only Social Security benefits under Title II in this case, to the extent cases cited herein may reference one or both sets of regulations, the Court notes these cases and regulations are applicable to the 1 Step two: Is the claimant’s alleged impairment sufficiently severe to limit his or her ability to work? If so, proceed to step three. If 2 not, the claimant is not disabled. 3 Step three: Does the claimant’s impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R., pt. 4 404, subpt. P, app. 1? If so, the claimant is disabled. If not, proceed to step four. 5 Step four: Does the claimant possess the residual functional 6 capacity (“RFC”) to perform his or her past relevant work? If so, the claimant is not disabled. If not, proceed to step five. 7 Step five: Does the claimant’s RFC, when considered with the 8 claimant’s age, education, and work experience, allow him or her to adjust to other work that exists in significant numbers in the 9 national economy? If so, the claimant is not disabled. If not, the claimant is disabled. 10 Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). The burden of proof is 11 on the claimant at steps one through four. Ford v. Saul, 950 F.3d 1141, 1148 (9th Cir. 2020). A 12 claimant establishes a prima facie case of qualifying disability once she has carried the burden of 13 proof from step one through step four. 14 Before making the step four determination, the ALJ first must determine the claimant’s 15 RFC. 20 C.F.R. § 416.920(e); Nowden v. Berryhill, No. EDCV 17-00584-JEM, 2018 WL 16 1155971, at *2 (C.D. Cal. Mar. 2, 2018). The RFC is “the most [one] can still do despite [her] 17 limitations” and represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 18 404.1545(a)(1); 416.945(a)(1). The RFC must consider all of the claimant’s impairments, 19 including those that are not severe. 20 C.F.R. §§ 416.920(e); 416.945(a)(2); Social Security 20 Ruling (“SSR”) 96-8p, available at 1996 WL 374184 (Jul. 2, 1996).3 A determination of RFC is 21 not a medical opinion, but a legal decision that is expressly reserved for the Commissioner. See 22 20 C.F.R. §§ 404.1527(d)(2) (RFC is not a medical opinion); 404.1546(c) (identifying the ALJ 23 as responsible for determining RFC). “[I]t is the responsibility of the ALJ, not the claimant’s 24 physician, to determine residual functional capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 25 (9th Cir. 2001). 26 3 SSRs are “final opinions and orders and statements of policy and interpretations” issued by the Commissioner. 20 27 C.F.R. § 402.35(b)(1). While SSRs do not have the force of law, the Court gives the rulings deference “unless they are plainly erroneous or inconsistent with the Act or regulations.” Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1 At step five, the burden shifts to the Commissioner, who must then show that there are a 2 significant number of jobs in the national economy that the claimant can perform given her RFC, 3 age, education, and work experience. 20 C.F.R. § 416.912(g); Lounsburry v. Barnhart, 468 F.3d 4 1111, 1114 (9th Cir. 2006). To do this, the ALJ can use either the Medical Vocational 5 Guidelines (“grids”), or rely upon the testimony of a VE. See 20 C.F.R. § 404 Subpt. P, App. 2; 6 Lounsburry, 468 F.3d at 1114; Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 7 “Throughout the five-step evaluation, the ALJ is responsible for determining credibility, 8 resolving conflicts in medical testimony, and for resolving ambiguities.’ ” Ford, 950 F.3d at 9 1149 (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). 10 B. Standard of Review 11 Congress has provided that an individual may obtain judicial review of any final decision 12 of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). 13 In determining whether to reverse an ALJ’s decision, the Court reviews only those issues raised 14 by the party challenging the decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 15 2001). Further, the Court’s review of the Commissioner’s decision is a limited one; the Court 16 must find the Commissioner’s decision conclusive if it is supported by substantial evidence. 42 17 U.S.C. § 405(g); Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). “Substantial evidence is 18 relevant evidence which, considering the record as a whole, a reasonable person might accept as 19 adequate to support a conclusion.” Thomas v. Barnhart (Thomas), 278 F.3d 947, 954 (9th Cir. 20 2002) (quoting Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)); 21 see also Dickinson v. Zurko, 527 U.S. 150, 153 (1999) (comparing the substantial-evidence 22 standard to the deferential clearly-erroneous standard). “[T]he threshold for such evidentiary 23 sufficiency is not high.” Biestek, 139 S. Ct. at 1154. Rather, “[s]ubstantial evidence means 24 more than a scintilla, but less than a preponderance; it is an extremely deferential standard.” 25 Thomas v. CalPortland Co. (CalPortland), 993 F.3d 1204, 1208 (9th Cir. 2021) (internal 26 quotations and citations omitted); see also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 27 Even if the ALJ has erred, the Court may not reverse the ALJ’s decision where the error is 1 harmless “normally falls upon the party attacking the agency’s determination.” Shinseki v. 2 Sanders, 556 U.S. 396, 409 (2009). 3 Finally, “a reviewing court must consider the entire record as a whole and may not affirm 4 simply by isolating a specific quantum of supporting evidence.” Hill v. Astrue, 698 F.3d 1153, 5 1159 (9th Cir. 2012) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 6 Nor may the Court affirm the ALJ on a ground upon which he did not rely; rather, the Court may 7 review only the reasons stated by the ALJ in his decision. Orn v. Astrue, 495 F.3d 625, 630 (9th 8 Cir. 2007); see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). Nonetheless, it is 9 not this Court’s function to second guess the ALJ’s conclusions and substitute the Court’s 10 judgment for the ALJ’s; rather, if the evidence “is susceptible to more than one rational 11 interpretation, it is the ALJ’s conclusion that must be upheld.” Ford, 950 F.3d at 1154 (quoting 12 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). 13 IV. 14 DISCUSSION AND ANALYSIS 15 The ALJ found that Plaintiff had the severe impairments of degenerative disc disease, 16 degenerative joint disease of the bilateral hips, and Grave’s disease. (Ar. 22.) The ALJ found 17 that Plaintiff “also has a history of carpal tunnel syndrome and trigger finger, but these 18 impairments do not appear to cause more than a minimal restriction in her ability to work and are 19 not severe.” (Id.) The ALJ further concluded that Plaintiff’s medically determinable mental 20 impairments of anxiety and depression, considered singly and in combination, do not cause more 21 than minimal limitation in the claimant’s ability to perform basic mental work activities and are 22 therefore nonsevere.” (Id.) 23 Plaintiff contends the ALJ erred at step two of the five-step sequential evaluation when 24 he failed to find somatoform disorder, generalized anxiety disorder, major depressive disorder, 25 and various hand impairments, to be severe. (Br. 8.) Plaintiff argues the ALJ disregarded the 26 severity of Plaintiff’s signs and symptoms as confirmed by medical records, including exam 27 findings, objective test results and consistent complaints of pain and resulting limitations; and 1 disorder without indicating whether he determined it to be severe or non- severe; and ignored 2 substantial medical evidence. 3 A. General Legal Standards Pertaining to Step Two 4 “At step two of the five-step sequential inquiry, the Commissioner determines whether 5 the claimant has a medically severe impairment or combination of impairments.” Smolen, 80 6 F.3d at 1289–90. “An impairment or combination of impairments can be found ‘not severe’ only 7 if the evidence establishes a slight abnormality that has ‘no more than a minimal effect on an 8 individual[‘]s ability to work.’ ” Smolen, 80 F.3d at 1290 (citations omitted). Step two is a “de 9 minimis screening devise to dispose of groundless claims.” Id. “[A]n ALJ may find that a 10 claimant lacks a medically severe impairment or combination of impairments only when his 11 conclusion is ‘clearly established by medical evidence.’ ” Webb v. Barnhart, 433 F.3d 683, 687 12 (9th Cir. 2005) (quoting S.S.R. 85-28). The ALJ is “required to consider the claimant’s 13 subjective symptoms, such as pain or fatigue, in determining their severity.” Smolen, 80 F.3d at 14 1290 (citations omitted). “Thus, applying our normal standard of review to the requirements of 15 step two, we must determine whether the ALJ had substantial evidence to find that the medical 16 evidence clearly established that [the claimant] did not have a medically severe impairment or 17 combination of impairments.” Webb, 433 F.3d at 687. 18 Any error in failing to find impairment severe at step two is harmless where the ALJ 19 considers the limitations posed by the impairment in the step four analysis. Lewis v. Astrue, 498 20 F.3d 909, 911 (9th Cir. 2007); see also Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) 21 (Where the ALJ ultimately decided step two in the claimant’s favor, she “could not possibly have 22 been prejudiced” at this stage of the analysis.). 23 B. The Parties’ Arguments Concerning Mental Health Issues 24 The Court first summarizes the parties’ arguments concerning Plaintiff’s mental health 25 limitations. 26 1. Plaintiff’s Arguments Concerning Somatoform and Other Mental Conditions 27 Regarding somatoform disorder, Plaintiff maintains the ALJ erred in failing to address 1 recognized as a listed impairment. Plaintiff argues the medical evidence here repeatedly 2 indicates Plaintiff’s pain is out of proportion to the medical findings. (See AR 338, 417-18, 443, 3 444, 459, 489, 645.) Plaintiff specifically notes that on September 24, 2014, Dr. Yvonne Love 4 examined Plaintiff and diagnosed not only major depressive disorder, severe, but also confirmed 5 the diagnosis of somatic symptom disorder with predominant pain, persistent type, moderate in 6 severity. (AR 374.) On April 3, 2016, Dr. James B. Shaw examined Plaintiff and diagnosed 7 somatoform disorder after noting that she “manifests emotional distress over ongoing pain 8 issues.” (AR 413- 414, 417.) Plaintiff maintains that the medical evidence supports the presence 9 of the diagnosis. 10 As to severity, Plaintiff argues the record makes clear that excessive pain behaviors have 11 significantly affected Plaintiff’s day to day functioning in a material way. For instance, Plaintiff 12 directs the Court to her testimony that (perceived) pain prevented her from standing long enough 13 to cook a meal (AR 47), prevented her from driving (AR 48), rendered her unable to sit for 14 longer than 20-25 minutes (AR 51), to use her hands no longer than 10 minutes (AR 53), and that 15 her only comfortable position was laying down (AR 51). (Br. 11.) Plaintiff highlights her pain 16 was noted to cause her to become “stressed out and unable to concentrate.” (AR 234.) Further, 17 when faced with stress, Plaintiff explained that she was prone to attacks of anxiety. (AR 240.) 18 Plaintiff argues these assertions were corroborated by her husband when he noted that his wife’s 19 daily and social activities were diminished as a result of pain. (AR 214-219.) Plaintiff submits 20 despite the above evidence, the ALJ failed to articulate whether he considered this impairment to 21 be severe or nonsevere, and simply ignored this evidence in its entirety. 22 Plaintiff argues the ALJ further erred when he failed to consider major depression and 23 anxiety disorders to be severe, and that in doing so, the ALJ improperly discounted the findings 24 of Dr. Yadeger, examining physician, and altogether ignored the findings of Dr. Love. Plaintiff 25 highlights Dr. Yadegar directly examined Plaintiff at the request of the agency in August of 26 2017, opining that: Plaintiff suffered from both anxiety disorder and generalized anxiety 27 disorder; Plaintiff suffered from moderate impairments in her ability to maintain regular 1 psychiatric condition, as evidenced by poor judgement, poor insight, poor memory and poor 2 reversibility; and that Plaintiff suffered from moderate impairments in her ability to deal with the 3 usual stress encountered in the workplace, as evidenced by poor insight, poor judgement, poor 4 memory, poor reversibility and poor concentration. (AR 343-44.) 5 While the ALJ found Dr. Yadegar’s opinion “not consistent with, or supported by, the 6 treatment records or the examination findings in his own report” (AR 23), Plaintiff argues the 7 ALJ did not articulate in what way Dr. Yadegar’s opinion was “inconsistent with” his own 8 report. (Br. 12.) In this regard, Plaintiff argues the opinion was supported by Dr. Yadegar 9 noting Plaintiff’s mental status exam was positive for poor insight, poor judgement, poor 10 memory, poor reversibility and poor concentration. (AR 344.) Plaintiff argues the ALJ failed to 11 articulate which records and how those records refuted Dr. Yadegar’s opinion. (Br. 13.) 12 Plaintiff argues the ALJ willfully overlooked the conclusion of Dr. Love who conducted 13 a thorough review of Plaintiff’s records and examined the Plaintiff, reaching the conclusion that 14 she suffered from “major depressive disorder, recurrent episode, severe with anxious distress.” 15 (AR 374.) Plaintiff highlights Dr. Love stated “the results of psychological testing were 16 consistent with the clinical presentation and objective assessment results indicate there persists 17 significant reduction in functioning in more than one area (work/social/written expression).” 18 (AR 377.) Plaintiff emphasizes this is the only other direct psychological testing of record, and 19 therefore any finding that Dr. Yadegar’s assessment is “inconsistent” with other medical records 20 should have included an analysis of any purported differences between the findings of Dr. 21 Yadegar and Dr. Love. Plaintiff suggests that in light of the fact that the ALJ failed to support 22 his rejection of Dr. Yadegar’s opinion and ignored Dr. Love’s opinion entirely, remand is 23 compelled. 24 2. Defendant’s Arguments Concerning Somatoform and Other Mental Conditions 25 Defendant emphasizes the same principal reason given by the ALJ in analyzing the 26 mental health impairments, the finding that Plaintiff did not receive any formal mental health 27 treatment beyond medication. (AR 25.) Defendant notes Plaintiff was prescribed Wellbutrin by 1 (AR 25, 319-320). See Alonzo v. Colvin, No. 1:14-CV-00460-SKO, 2015 WL 5358151, at *12 2 (E.D. Cal. Sept. 14, 2015) (“Although Plaintiff argues it is inappropriate for an ALJ to make any 3 assumptions about why a person with a mental health issue does not seek treatment . . . here 4 Plaintiff did seek mental treatment from her physicians in the form of anti-depressant 5 medication, but claims to continue having a disabling level of symptoms[,] [however,] [i]f 6 Plaintiff's symptoms were as severe as alleged, it is a rational inference that she would have 7 sought additional and specialized treatment for her depressive episodes [and therefore] [t]his was 8 a legitimate and specific basis to doubt Plaintiff's statements about the degree of her depressive 9 symptoms and to assign less weight to Dr. Latter's opinion based upon Plaintiff's own 10 statements.”). 11 Defendant contends the evidence in this very limited record, shows, including after her 12 alleged onset date, that Plaintiff appeared to have largely normal mental status, which provides 13 additional support for the ALJ’s interpretation. (AR 23, 80-81, 690, 693.) Defendant argues that 14 in assessing the severity of Plaintiff’s impairments, the ALJ properly resolved the conflicts in the 15 medical opinions, and properly relied on the assessments of the agency physicians who opined 16 that Plaintiff’s mental impairments were not severe, assessments that were consistent with the 17 overall record showing treatment limited to medication, with no formal mental health treatment, 18 and largely benign examination findings in the limited record. (AR 23, 69, 81-82). Defendant 19 emphasizes that like the ALJ, those doctors also rated Plaintiff’s limitations as “mild” (not 20 severe) in all relevant areas under the regulations, (AR 22-23, 68-69, 81-82). See 20 C.F.R. § 21 404.1520a (evaluation of mental impairments by rating the degree of functional limitations in 22 relevant areas; “If we rate the degrees of your limitation as “none” or “mild,” we will generally 23 conclude that your impairment(s) is not severe”). As the ALJ further explained, the agency 24 physicians’ assessments were consistent with the longitudinal medical evidence and more 25 persuasive (Tr. 35). 26 Defendant argues that although Dr. Yadegar opined Plaintiff had some moderate mental 27 limitations in August 2017, he did not have the benefit of a longitudinal view of Plaintiff’s 1 treatment, Plaintiff’s prognosis was good and would improve within 12 months. (AR 341-344). 2 Defendant argues the ALJ rightly found the opinion was not supported by the overall record, 3 especially the limited treatment for her condition, or the examiner’s own, largely benign 4 examination findings. (AR 23, 81-82.) Defendant submits that contrary to Plaintiff’s contention, 5 the ALJ did not overlook any probative medical opinions, and in particular, Dr. Love’s earlier 6 opinion was that Plaintiff could work with no significant mental health limitations. (AR 371, 7 374.) 8 As for somatoform disorder, Defendant notes Plaintiff’s doctors apparently referred to 9 that condition in September 2014 and April 2016, prior to her alleged of disability, because they 10 could not explain her high level of worry and thoughts about illness (AR 369, 413, 417-418, 435, 11 440-442); and moreover, Dr. Love apparently believed Plaintiff did not have significant 12 limitations affecting her ability to work despite her somatic concerns. (AR 369, 371.) Defendant 13 contends there is no indication of similar references to a somatic condition “or speculation” in 14 the record after Plaintiff’s alleged onset of disability. Additionally, Defendant argues Plaintiff, 15 in briefing, did not discuss the lack of formal mental health treatment supporting the ALJ’s 16 determination that Plaintiff’s mental impairments were not severe and explain why this evidence 17 was not substantial with regard to any of her mental impairment(s), and instead, Plaintiff focuses 18 on limited evidence predating her alleged onset of disability. Therefore, Defendant argues the 19 Court should not consider contentions that are insufficiently developed. 20 Finally, Defendant argues any ALJ error would be harmless because the ALJ continued 21 to address all of Plaintiff’s impairments including her subjective allegations, and the extent of 22 her treatment for mental health and hand and trigger finger issues beyond step two. (AR 24-27.) 23 C. Somatoform Disorder Generally and Concerning the ALJ’s Summary of Dr. Shaw’s Opinion 24 25 While the parties proceed on the basis that the ALJ did not acknowledge somatoform 26 disorder, the Court notes that in making the RFC determination, the ALJ did reference Dr. 27 Shaw’s report, stating “Dr. Shaw diagnosed chronic pain syndrome, trigger finger, 1 at maximum medical improvement . . . [and] noted that the claimant manifested the persistence 2 of her widespread, multifocal pain syndrome in a number of body parts and her activity limiting 3 pain appeared to have waxed and waned with her baseline psychological status.” (AR 26.) The 4 Court describes this portion of Dr. Shaw’s report in greater detail below. 5 As shown below in the Court’s review of caselaw and other authorities, in short, there 6 appear to be complicated issues surrounding somatoform disorder in relation to other pain 7 disorders, and the parties do not appear to acknowledge the ALJ’s reference to these pages of Dr. 8 Shaw’s opinion in relation to his discussion of somatoform. Nor have the parties provided or 9 discussed any caselaw that describes the condition or that analyzes where an ALJ errs or does not 10 err in analyzing or failing to analyze the condition in relation to other mental health conditions. 11 Given the ALJ’s summary references Dr. Shaws’s reference to chronic pain syndrome, 12 myalgia/widespread pain complaints, and statement that the multifocal pain syndrome indeed 13 waxes and wanes with Plaintiff’s baseline psychological status, the Court turns to authorities that 14 reference the disorder. 15 “The listings for mental disorders are arranged in 11 categories: Neurocognitive disorders 16 (12.02); schizophrenia spectrum and other psychotic disorders (12.03); depressive, bipolar and 17 related disorders (12.04); intellectual disorder (12.05); anxiety and obsessive-compulsive 18 disorders (12.06); somatic symptom and related disorders (12.07); personality and impulse- 19 control disorders (12.08); autism spectrum disorder (12.10); neurodevelopmental disorders 20 (12.11); eating disorders (12.13); and trauma- and stressor-related disorders (12.15).” 20 C.F.R. 21 § Pt. 404, Subpt. P, App. 1 (emphasis added). “Listings 12.07, 12.08, 12.10, 12.11, and 12.13 22 have two paragraphs, designated A and B; your mental disorder must satisfy the requirements of 23 both paragraphs A and B.” Id. The regulations provide the following description of Listing 24 12.07: 25 Somatic symptom and related disorders (12.07). 26 a. These disorders are characterized by physical symptoms or deficits that are not intentionally produced or feigned, and that, 27 following clinical investigation, cannot be fully explained by a general medical condition, another mental disorder, the direct 1 experience. These disorders may also be characterized by a preoccupation with having or acquiring a serious medical condition 2 that has not been identified or diagnosed. Symptoms and signs may include, but are not limited to, pain and other abnormalities of 3 sensation, gastrointestinal symptoms, fatigue, a high level of anxiety about personal health status, abnormal motor movement, 4 pseudoseizures, and pseudoneurological symptoms, such as blindness or deafness. 5 b. Examples of disorders that we evaluate in this category include 6 somatic symptom disorder, illness anxiety disorder, and conversion disorder. 7 8 Id. 9 Some courts, ALJs, or medical authorities, appear to use the term somatoform disorder 10 sometimes as a separate type of pain disorder, or in relation to or as a subset of chronic pain 11 syndrome or other similar disorders or conditions. See Cuestas v. Kijakazi, No. 5:20-CV-08746- 12 EJD, 2022 WL 4591776, at *2 (N.D. Cal. Sept. 29, 2022) (“At step two, the ALJ found Plaintiff 13 has somatic symptom disorder, interstitial cystitis, chronic pain syndrome, morbid obesity, 14 generalized anxiety disorder, major depressive disorder, and panic disorder.”); Kuehu v. United 15 Airlines, Inc., No. CV 16-00216 ACK-KJM, 2017 WL 2312475, at *4 (D. Haw. May 26, 2017) 16 (“The LIRAB resolved conflicting evidence from various doctors and medical experts and 17 determined that Plaintiff's condition is an undifferentiated somatoform disorder, not multiple 18 chemical sensitivity, chronic pain syndrome, fibromyalgia, or candidiasis.”); Michael Finch, Law 19 and the Problem of Pain, 74 U. Cin. L. Rev. 285, 292 (2005) (“The medical community's 20 acceptance of diagnoses for both fibromyalgia and somatoform pain disorder would suggest that, 21 whether styled as an organic or mental illness, chronic pain syndrome has achieved medical 22 legitimacy.”).4 23 4 Strom v. Astrue, No. CIV.07-150(DWF/RLE), 2008 WL 583690, at *18 (D. Minn. Mar. 3, 2008) (“Plaintiff had 24 been diagnosed with a pain disorder associated with both psychological factors, and a general medical condition which had been diagnosed as chronic pain syndrome, myofascial pain syndrome and/or somatoform pain 25 syndrome.”); Hatcher v. Astrue, No. 09-14409-CIV, 2010 WL 5851123, at *1 (S.D. Fla. Nov. 29, 2010) (“She has a somatoform disorder and chronic pain syndrome with constant pain and spasm in her neck and headaches.”); Sara Ann W. v. Comm'r of Soc. Sec., No. 2:17-CV-00277-RHW, 2018 WL 4088771, at *4 (E.D. Wash. Aug. 27, 2018) 26 (“Plaintiff contends that the ALJ erred by characterizing her impairment as ‘pain disorder’ and finding it a severe impairment at step two, rather than specifically characterize the impairment as ‘somatoform disorder’ or 27 ‘somatoform pain disorder.’ ”); Joseph S. v. Saul, No. 4:20-CV-05075-MKD, 2021 WL 9816444, at *4 (E.D. Wash. Mar. 29, 2021) (“Plaintiff argues the ALJ failed to address Plaintiff's somatoform disorder, [] however the ALJ 1 D. References to Somatoform & the ALJ’s Reference to Dr. Shaw’s Report 2 Having provided some background, the Court now turns to summarize the relevant 3 discussion in the record related to somatic conditions, particularly as contained in Dr. Shaw’s 4 report, and the ALJ’s reference thereto. 5 Dr. Shaw issued a report entitled a “Represented Qualified Medical Re-Evaluation,” 6 dated April 3, 2016. (AR 409-450, Ex. 7F at 1-42.) Under diagnoses, first, Dr. Shaw lists: 7 “Chronic pain syndrome. It is noted that subjective complaints are out of proportion to objective 8 findings.” (Ex. 7F at 31, AR 439.) Second, Dr. Shaw lists: “Trigger finger, left ring finger, 9 history/improved, largely resolved.” (Id.) Third, Dr. Shaw lists: “Myalgia/Widespread pain 10 complaints/multiple regions of pain complaints difficult problem with co-morbid issues.” (Id.) 11 Fourth. Dr. Shaw lists: “History Headache.” (Id.) Dr. Shaw notes that: 12 Clinically, the patient is markedly somatically focused regarding her “pain symptoms.” The patient presents in a hyper vigilant 13 manner regarding vague somatic complaints – non anatomic. Somatization is a tendency to experience and communicate 14 psychological distress in the form of somatic symptoms and to seek medical help for them. More commonly expressed, it is the 15 generation of physical symptoms of a psychiatric condition such as anxiety. 16 (AR 440.) Dr. Shaw described generally the relationship between somatization and anxiety, and 17 as to the Plaintiff, and pain disorders generally: 18 Pain and corollary symptoms that are outside the confines of 19 neurological impairments e.g. nondermatomal sensory loss are construed as nonorganic [citation]. The patient reports a number 20 of symptoms that are highly suspect in regards to an organic orthopedic basis-ear complaints etc. 21 22 Smiley's diagnosis of chronic pain syndrome was not supported by the evidence[,] Plaintiff does not challenge the 23 ALJ's finding regarding chronic pain syndrome [and] [a]s the ALJ's finding that Plaintiff's somatoform disorder and chronic pain syndrome are not severe impairments is supported by substantial evidence, the ALJ reasonably rejected 24 Dr. Smiley’s opinion that Plaintiff would have missed work due to those conditions.”); Foxx v. Apfel, No. CIV.A.98-0787-P-L, 2000 WL 1137221, at *5 (S.D. Ala. July 19, 2000) (“The plaintiff, Dr. Hinton found, also had 25 been diagnosed with chronic pain syndrome, which qualified as a 12.07 somatoform disorder, and had a history of treatment for chemical dependency.”); Perry v. Astrue, No. CIV.07CV276L(JMA), 2009 WL 435123, at *9 (S.D. Cal. Feb. 19, 2009) (“The ME, a psychiatrist, testified that Plaintiff had depression, not otherwise specified (Listing 26 12.04 of the Listing of Impairments),5 secondary to pain, a somatoform disorder (Listing 12.07),6 and chronic pain syndrome (Listings 12.07A3 and 12.07).”); Foglio v. Colvin, No. 12 C 5270, 2014 WL 684643, at *12 27 n.9 (N.D. Ill. Feb. 19, 2014) (“Somatoform disorder and chronic pain syndrome both refer to chronic pain with a psychological, rather than physical, cause.”). 1 Somatization is the conversion of anxiety to physical symptoms. Patients who somatize psychosocial distress commonly present in 2 medical clinical settings. Approximately 25% of patients in primary care demonstrate some degree of somatization, and at least 3 10% medical or surgical patients have evidence of a disease process. Somatization patient[s] use a disproportionately large 4 amount of medical services and can frustrate their physicians, who often do not recognize the true nature of this patient’s problems. 5 Somatizers continue to seek medical care in nonpsychiatric settings where somatozation is often not recognized. 6 Somatization is not an all or none opposition. Rather a number of 7 patients have some evidence of disease but over respond to their symptoms, or believe themselves more disabled than objective 8 evidence would dictate. 9 Pain disorder is diagnosed when pain is the predominant focus of clinical presentation, when the pain causes significant distress or 10 functional impairment psychological factors are judged to have an important role in the onset, severity, exacerbation, or maintenance 11 of the pain (American Psychiatric Association). 12 The assessment of pain-related impairment constitutes a substantial challenge, as it is the most common reason for disability, the most 13 subjective, and perhaps the most multifaceted. Equitable quantification of impairment requires attention to subjective 14 experiences of pain and emotional distress, as well reports of behavioral impairment, all which can only be confirmed indirectly. 15 Despite these obstacles, it appears that each of these can be 16 assessed with good reliability if meticulous evaluation is performed that includes observation and collateral information. 17 The following are accepted indicators for evaluation: 18 There were some pain behaviors observed during the examination, and they appear congruent with the organ dysfunction from hip 19 arthritis. 20 The patient demonstrates moderate to severe affective distress in relation to their pain. 21 The individual demonstrate[s] significant pain related limitations 22 on physical examination, some pain behaviors appear during the examination, and they are in determinant appropriateness. 23 Portions of the physical examination were virtually impossible to 24 perform because the patient was intolerant of many examination maneuvers, and it is difficult to interpret relative the underlying 25 organ dysfunction. 26 Headache, is subjective, without reliable, objective markers; is multidetermined, and calls for comprehensive, multifactorial 27 approach. The medical record indicates headaches and stress dating back over 10 years, and with some regularity are described 1 entire head. Ms. Madrid has reported the onset of tinnitus in the last several months. Ms. Madrid denies ear pain, but describes 2 chronic drainage, and medical records had indicated middle ear infection previously in 2004. 3 In summary, the patient manifests persistence of her 4 widespread, multifocal pain symptoms in a number of body parts, and her activity limiting pain appears to have waxed and 5 waned with her baseline psychological status. There is a significant past medical history in this case with insufficient 6 information a[s] to new physical injuries. I have previously [] evaluated the patient, and at time noted subjective factors of 7 disability. It must be acknowledged that great care should be taken in interpreting subjective factors of disability is patient’s with 8 significant psychological co-morbidities as in this case. 9 (Ex. 7F at 33-34, AR 441-442 (emphasis added).) 10 Dr. Shaw then noted that “Dr. Love PQME has addressed the psychological and profound 11 psychiatric conditions in this complicated case,” and stated “[t]he patient remains at maximum 12 medical improvement.” (Ex. 7F at 35, AR 443.) Under the heading causation, Dr. Shaw 13 additionally noted that: “The injuries evaluated in this case are extensive and complicated, and 14 include a time line of 14 years . . . [a]ll these complaints appear to have one constant has been 15 they all related to her baseline psychological state,” that “[t]he patient's pain complaints are out 16 of proportion to what would normally be anticipated, and lack biomedical correlates/objective 17 factors of disability,” and that “[t]he patient’s physical examination is marked with positive 18 Waddell Signs.” (Id.) 19 The ALJ’s opinion contains the following summary of Dr. Shaw’s findings, and 20 specifically references Exhibit 7F at 34-35, and a chronic pain syndrome/multifocal pain 21 syndrome: 22 Dr. Shaw diagnosed chronic pain syndrome, trigger finger, myalgia/widespread pain complaints, and a history of headaches 23 (Exhibit 7F, p. 31). He opined that the claimant was at maximum medical improvement (Exhibit 7F, p. 35). He noted that the 24 claimant manifested the persistence of her widespread, multifocal pain syndrome in a number of body parts and her activity limiting 25 pain appeared to have waxed and waned with her baseline psychological status (Exhibit 7F, p. 34). 26 27 (AR 26.) Dr. Love issued a panel qualified medical examination report dated September 24, 2014. 1 Therein, Dr. Love noted that the Whaler Physical Symptoms Inventory “score reflects a 2 somatization tendency and many physical problems.” (Ex. 6F at 17, AR 369.) On the P3 Pain 3 Scale chart, Plaintiff is noted as having a score of 65 for depression and anxiety, and a score of 4 63 for somatization, both noted as above average. (Id.) However, the report then notes: 5 Interpretation of the validity scales suggest that this test cannot be interpreted with confidence. Response set indicates that the patient 6 is exaggerative in her reporting style and is experiencing a very high level of concern regarding pain. The patients Somatization 7 scores are considerably above average for pain patients and her responses suggest that her health and energy levels are poor. As 8 compared to the scores of other pain patients, as well as community subjects, this patient’s Depression score suggests that 9 she is extremely depressed and is experiencing serious affective distress. The patient’s profile suggests that not only that she is 10 more depressed than the average community subject, she also has more somatic concerns than the average pain patient. The same 11 applies to her anxiety concerns. The patients anxiety score, however, is above average when compared to a community subject 12 and is considerably above average for pain patients. 13 (Id.) Dr. Love further noted that 14 Ms. Madrid endorsed a high number of clinical symptoms of mood and somatic type at the initial evaluation, including passive 15 ideation related to suicide. Most of the observable symptoms have been objectively observed as mild to moderate levels, which 16 demonstrates a significant discrepancy in symptom presentation. Psychological test results indicated a tendency to overreport and 17 exaggerate reactive emotional responses. It does not appear she will require continued treatment to cure the effects of the industrial 18 injury, yet psychiatric treatment on a non-industrial basis is indicated. 19 I recommended individual therapy on a non-industrial basis to 20 address symptoms of Major Depressive Disorder related to chronic hypothyroidism, menopause and chronicity of pain due to multiple 21 injuries, including past injuries sustained in non-industrial accidents. 22 23 (Ex. 6F at 21, AR 373.) Dr. Love’s diagnostic impression included: major depressive disorder, 24 recurrent episode, severe with anxious distress, mood disorder due to hypothyroidism, and 25 somatic symptom disorder,5 with predominant pain, persistent type, moderate severity. (AR 26 5 As noted within Dr. Shaw’s report, the “Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) no longer recognizes Somatization disorder, and instead proposes the diagnosis of somatic symptom 27 disorder for individuals that in the past would have received the diagnosis of Somatization disorder.” (AR 417.) In this regard, the Court notes Plaintiff’s brief states that “[t]his doctor [referring to Dr. Shaw,] also diagnosed 1 374.) Dr. Love noted “I rate this claimant at zero to extremely low risk for suicidal behavior. 2 (AR 376.) 3 As Plaintiff notes in briefing, Dr. Love further stated that “[t]he results of psychological 4 testing were consistent with the clinical presentation,” and “[o]bjective assessment results 5 indicate there persists significant reduction in functioning in more than one areas 6 (work/social/written expression.[)]” (AR 377.) Plaintiff emphasizes “this is the only other direct 7 psychological testing of record,” aside from Dr. Yadegar. (Br. 13.) However, as Defendant 8 correctly notes, Dr. Love also stated in the report that “[f]rom a psychological perspective, Ms. 9 Madrid is capable of full-time work,” that [c]urrently, she is reporting psychological symptoms 10 of a severity that prevent her from carrying on in any work setting, yet there is evidence of 11 exaggeration and overreporting,” that “[a]t our appointment, Ms. Madrid presents as anxious, 12 calm, and preoccupied with conspiracy theories specific to her work Supervisors,” and concluded 13 “[s]he can work full-time with the noted physical restrictions per her medical specialists.” (AR 14 371.) 15 E. The Court Finds the ALJ Erred at Step Two and the Error was not Harmless 16 Having described the records that Plaintiff relies on that refer to somatoform (Dr. Love 17 and Dr. Shaw), and having found the ALJ did reference somatoform in some regards by 18 referencing Dr. Shaw’s opinion concerning chronic pain syndrome, the Court now turns to 19 specific caselaw that raised similar arguments to the Plaintiff here. Again, neither party provided 20 the Court with any caselaw concerning somatoform in relation to other health conditions, mental 21 or physical. Further, Defendant’s briefing does not appear to reference Dr. Shaw’s opinion at all, 22 nor the ALJ’s reference to it. 23 Courts have found an absence of any reference to somatization or diagnosis of 24 somatoform disorder to be error. See Iverson v. Astrue, No. C12-391-MJP-BAT, 2012 WL 25 5330978, at *4 (W.D. Wash. Oct. 9, 2012), report and recommendation adopted, No. C12-391- 26 27 quoting AR 413-14, 417.) However, these pages do not appear to contain a diagnosis of “somatoform disorder” by Dr. Shaw, but rather an insertion of information pertaining to the disorder, and it appears the terms Dr. Shaw are 1 MJP, 2012 WL 5330976 (W.D. Wash. Oct. 29, 2012). In Iverson, the plaintiff argued, somewhat 2 differently than here in regards to step 3, that “the ALJ erred by failing to consider somatoform 3 disorder at steps two and three and for failing to use the special technique for evaluating mental 4 impairments with respect to this impairment.” Id. at *2-3 (“But the ALJ did not mention 5 somatoform disorder in her step two or step three analyses, or elsewhere in the decision.). The 6 court found evidence of a colorable claim: 7 The court finds that this omission was erroneous. Although Ms. Iverson's treating providers did not diagnose somatoform disorder, 8 an examining doctor and mental health professional opined that Ms. Iverson had somatoform disorder, that the disorder caused at 9 least some impairment in her functioning, and that the disorder met a listing. Two reviewing doctors affirmed the diagnosis and opined 10 that Ms. Iverson's mental impairments, including somatoform disorder, were severe. This evidence presents a colorable claim 11 that somatoform disorder was a severe impairment. If the ALJ chooses to disregard these opinions, the ALJ must, at the very 12 least, provide specific and legitimate reasons for doing so. Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir.1996). Here, the ALJ gave 13 no reasons, despite giving weight to the opinions later in the decision. 14 The Commissioner argues that the record supported “the ALJ's 15 finding” that somatoform disorder did not cause Ms. Iverson significant, work-related mental limitations. Dkt. 15 at 7. But the 16 ALJ made no such finding; rather, the ALJ made no findings at all related to somatoform disorder, despite the fact that plaintiff's 17 counsel argued at the hearing that somatoform disorder was a severe impairment and that it met a listing. Tr. 34. 18 Iverson, 2012 WL 5330978, at *3. 6 19 As for the whether the error was harmless, the court in Iverson found it significant that 20 the disorder was not mentioned at all in the opinion, and thus the court could not determine if the 21 ALJ considered the effects of the disorder at the later steps: 22 The Commissioner also argues that “because Plaintiff's 23 longitudinal treatment records did not demonstrate Plaintiff experienced disabling limitations, any ... error is harmless.” Dkt. 24 15 at 10. The Commissioner's argument puts the cart before the horse. The question at step two is not whether a claimant is 25 disabled; rather, it is whether she has an impairment that is medically determinable and severe. An ALJ's failure to properly 26 6 The specific and legitimate reason standard does not apply in this action. See Woods v. Kijakazi, 32 F.4th 785, 27 792 (9th Cir. 2022). Of note, Plaintiff’s counsel in Iverson specifically argued regarding somatoform at the hearing, and argued it met a listing. Iverson, 2012 WL 5330978, at *3. It does not appear somatoform was mentioned at the 1 consider an impairment at step two may be harmless where the ALJ considered the functional limitations caused by that 2 impairment later in the decision. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir.2007). But here, the ALJ failed to even mention 3 somatoform disorder anywhere in the decision, leaving no means for the Court to determine whether the ALJ considered the effects 4 of this disorder at the later steps. 5 Iverson, 2012 WL 5330978, at *4. The court in Iverson found the omission particularly 6 significant given the interrelation of the somatoform disorder with other mental disorders: 7 The ALJ's omission was also problematic because the ALJ failed to document application of the special technique with respect to 8 somatoform disorder. Although the ALJ made findings about Ms. Iverson's limitations in the four functional areas with respect to her 9 PTSD and personality disorder, there is nothing to show that the ALJ included the effects of somatoform disorder in this analysis. 10 This failure was reversible error. Keyser, 648 F.3d 726. 11 Moreover, the ALJ is required to consider the combined effects of a claimant's impairments, even if an impairment by itself would 12 not rise to the level of a severe impairment. 20 C.F.R. § 416.923. If a combination of impairments is medically severe, the ALJ must 13 consider the combined impact throughout the disability determination process. Id. The claimant's impairments “ ‘must not 14 be fragmentized in evaluating their effects.’ “ Lester, 81 F.3d 828 (quoting Beecher v. Heckler, 756 F.2d 693, 694–95 (9th 15 Cir.1985)). This is particularly true where the claimant has significant mental and physical impairments, each of which results 16 in some restrictions on her ability to function. Id. at 829. Here, there is nothing to indicate that the ALJ considered somatoform 17 disorder in combination with any other impairments, either mental or physical. This omission is particularly glaring given that 18 somatoform disorder is defined by reference to physical symptoms. See 20 C.F.R. Pt. 404 Subpt. P, App. 1, § 12.07 19 (somatoform disorders are “Physical symptoms for which there are no demonstrable organic findings or known physiological 20 mechanisms”). 21 Iverson, 2012 WL 5330978, at *4. 22 In Johnson, the Defendant did not dispute somatoform was not mentioned in the ALJ’s 23 opinion. Johnson v. Astrue, No. 6:11-CV-00044-TC, 2012 WL 2049481, at *3 (D. Or. Apr. 25, 24 2012) (“The Commissioner, however, does not dispute that the ALJ wholly failed to address 25 Johnson’s somatoform disorder in his decision.”), report and recommendation adopted, No. 6:11 26 CV 00044-TC, 2012 WL 2048189 (D. Or. June 4, 2012). In Johnson, the Commissioner 27 contended that “if the ALJ should have considered Johnson’s somatoform disorder at step two, such error was harmless because: (1) any limitations imposed by the somatoform disorder were 1 considered at other steps; and (2) the error will not change the outcome of this case.” Id. The 2 Johnson court did not consider the error harmless, particularly given the dissimilarity between a 3 somatoform disorder and other types of mental disorder, such as anxiety: 4 Here, the ALJ did not mention Johnson's somatoform disorder in his decision, but he did consider Johnson's non-specific cognitive 5 disorder and anxiety at step two. (tr. 22). A non-specific cognitive disorder, however, is not the same as a somatoform disorder; a 6 non-specified cognitive disorder is a diagnosis of confusion or memory impairment, whereas a somatoform disorder is a diagnosis 7 of a physical affliction from a psychological cause. See Herring v. Veterans Admin., 1996 WL 32147, *6 (9th Cir. Jan. 26, 1996) 8 (Table) (a conversion disorder is a “form of a somatoform disorder-a psychiatric syndrome where the patient's symptoms 9 suggest medical disease, but no demonstrable pathology accounts for the symptoms”); Crayton v. Bowen, 1989 WL 41721, *3 (9th 10 Cir. Apr. 21, 1989) (Table) (“[s]omatoform disorders, including psychogenic pain disorder, ‘present with physical symptoms 11 suggesting a disease but for which no organic/physiologic disruption can be found,’ “ quoting a former version of 20 C.F.R. 12 Pt. 404, Subpt. P, App. 1, § 12.07); Dschaak v. Astrue, 2011 WL 4498832, *19–20 (D.Or. Aug. 15, 2011), adopted by 2011 WL 13 4498835 (D.Or. Sept. 25, 2011) (a cognitive disorder is a “direct physiological effect of a general medical condition” that results in 14 cognitive impairments similar to dementia, delirium, or an amnestic disorder); Murphy v. Comm'r Soc. Sec. Admin., 423 15 Fed.Appx. 703, 704–05 (9th Cir.2011) (somatoform disorder can, alone, be the basis of disability). 16 Thus, the limitations that the ALJ assessed in conjunction with 17 Johnson's cognitive disorder are insufficient to address her somatoform disorder, as these medical entities are distinct. Further, 18 the ALJ's failure to consider Johnson's somatoform disorder was error warranting reversal, as Johnson has a colorable claim of 19 mental impairment. 20 Johnson, 2012 WL 2049481, at *4–5. 21 On the other hand, the Court considers Spillane. Similar to here, anxiety and depression 22 were related to the somatization disorder, however, in Spillane, the ALJ found anxiety and 23 depression were severe at step two. Spillane v. Astrue, No. 2:11-CV-1000-EFB, 2012 WL 24 3993549, at *9 (E.D. Cal. Sept. 11, 2012). The court found the ALJ did not err in failing to 25 consider somatization disorder, finding it significant that Plaintiff did not identify what 26 functional limitations associated with the disorder were not considered by the ALJ: 27 The ALJ actually found plaintiff's mental impairments (depression and anxiety) severe at step two for purposes of the decision. AR at 1 complain of any prejudicial error at step two. 2 Plaintiff nevertheless also argues that the ALJ failed to consider her somatization disorder at step two and beyond. Although it is 3 true that there are diagnoses of a somatization disorder in the record, plaintiff fails to identify what functional limitations 4 associated with the somatization disorder had not been considered by the ALJ. See Burch v. Barnhart, 400 F.3d 676, 684 (9th 5 Cir.2005) (explaining that the claimant “has not set forth, and there is no evidence in the record, of any functional limitations as a 6 result of her obesity that the ALJ failed to consider”). The medical evidence clearly shows that the symptoms of her somatization 7 disorder manifested as chronic pain, anxiety, and depression, and plaintiff concedes as much in her own briefing. See Pl.'s Mot. for 8 Summ. J., Dckt. No. 21 at 6:4–5 (“Her somatoform disorder manifests with severe myofascial pain syndrome, depression, and 9 anxiety.”). 10 Stated differently, whether characterized as a somatization disorder, depressive disorder, or anxiety disorder (and the exact 11 diagnoses here differ among plaintiff's treating and examining sources), the ALJ found plaintiff's manifesting symptoms of 12 depression and anxiety to be severe at step two and properly considered their associated limitations at all steps of the sequential 13 evaluation process, as discussed further below. 14 Spillane, 2012 WL 3993549, at *9. 15 Here, the Court finds the above authority in relation to the ALJ’s opinion here, weigh in 16 favor of granting Plaintiff’s appeal. First, the Court finds the failure to discuss the diagnosis of 17 somatoform at step two was error. See Iverson, 2012 WL 5330978, at *4 (“The Commissioner 18 also asserts that symptoms of an impairment alone are insufficient to establish the existence of 19 the impairment, and, similarly, that a diagnosis of an impairment alone is insufficient to establish 20 the severity of the impairment . . . [w]hile these assertions are true, it is not the case that the only 21 evidence for somatoform disorder is Ms. Iverson's statement of her symptoms or a diagnosis 22 without any clinical assessment [as] Ms. Fergoda and Dr. Freedman administered the Personality 23 Assessment Inventory and performed a clinical assessment of Ms. Iverson's functioning [and] 24 [t]his evidence is sufficient to, at the very least, trigger an analysis of whether somatoform 25 disorder is a severe impairment and whether it meets a listing.”). 26 The Court finds the more critical question that of whether the error is harmless, 27 particularly given the Court’s review of the ALJ’s reference to Dr. Shaw’s opinion above at step 1 four. Plaintiff argues any error is not harmless as the ALJ did not discuss the impairment of 2 somatoform disorder at step two or anywhere else in the determination, and this demonstrates the 3 ALJ did not consider the impairment singly or in combination with other mental health 4 impairments or any limitations resulting from the impairment singly or in combination, in his 5 analysis of Plaintiff’s RFC, and if properly considered, would have found Plaintiff’s RFC 6 contained greater restrictions. Specifically, as to the mental RFC, Plaintiff submits the ALJ 7 should have adopted the finding that Plaintiff was unable to sustain skilled or semi-skilled work, 8 due to established limitations in the domains of concentration and memory (AR 344, 377), and 9 had the ALJ properly considered these limitations, he would have found Plaintiff unable to 10 perform her past work or any other work and would have found Plaintiff disabled pursuant to the 11 vocational expert’s testimony (AR 59, 60). (Br. 13-14.) 12 While Defendant states in briefing that Plaintiff submitted undeveloped arguments in the 13 opening brief (as to other subjects, not harmless error), the Court finds Defendant’s arguments as 14 to harmless error not helpful. Indeed, Defendant’s opposition brief has essentially provided the 15 Court with no specific arguments, but simply points to the ALJ’s RFC analysis as a whole. (See 16 Opp’n 13 (“Finally, any ALJ error would be harmless because the ALJ continued to address all 17 of Plaintiff’s impairments including her subjective allegations, and the extent of her treatment for 18 mental health and hand and trigger finger issues beyond step two ([AR] 24-27).”).) 19 The Court considers whether it is apparent the ALJ considered the limitations posed by 20 the impairment at step four. See Lewis, 498 F.3d at 911 (“The decision reflects that the ALJ 21 considered any limitations posed by the bursitis at Step 4.”). While the ALJ did reference Dr. 22 Shaw’s diagnosis, and the fact that pain disorders waxed and waned with the baseline 23 psychological status (AR 26), there is no further discussion beyond this in the RFC 24 determination. As for a discussion of the limitations of Plaintiff’s other mental impairments 25 overall at step four, the ALJ only stated: “[a]s for the claimant’s statements about the intensity, 26 persistence, and limiting effects of his or her symptoms, they are inconsistent because despite 27 complaints of mental symptoms, the claimant has not sought therapy or other mental health 1 be made that because Plaintiff’s mental health symptoms were not severe enough to seek 2 treatment, the pain syndrome and pain based on the psychological status would thus be waning 3 rather than waxing and thus the RFC is appropriate, the opinion does not make such findings. 4 See Orn, 495 F.3d at 630 (“We review only the reasons provided by the ALJ in the disability 5 determination and may not affirm the ALJ on a ground upon which he did not rely.”). 6 Based on Plaintiff’s arguments concerning harmful error, and the lack of specific 7 response from Defendant, the Court finds harmful error, particularly given the relationship 8 between somatoform and other mental conditions, as well as physical pain. See Iverson, 2012 9 WL 5330978, at *4 (“Although the ALJ made findings about Ms. Iverson's limitations in the four 10 functional areas with respect to her PTSD and personality disorder, there is nothing to show that 11 the ALJ included the effects of somatoform disorder in this analysis . . . the ALJ is required to 12 consider the combined effects of a claimant's impairments . . . [t]his is particularly true where the 13 claimant has significant mental and physical impairments, each of which results in some 14 restrictions on her ability to function . . . [and] there is nothing to indicate that the ALJ 15 considered somatoform disorder in combination with any other impairments, either mental or 16 physical[,] [an] omission [] particularly glaring given that somatoform disorder is defined by 17 reference to physical symptoms.”); Johnson, 2012 WL 2049481, at *4–5 (“[T]he limitations that 18 the ALJ assessed in conjunction with Johnson’s cognitive disorder are insufficient to address her 19 somatoform disorder, as these medical entities are distinct.”); c.f. Joseph S. v. Saul, No. 4:20- 20 CV-05075-MKD, 2021 WL 9816444, at *5 (E.D. Wash. Mar. 29, 2021) (“[T]he ALJ took 21 Plaintiff's somatoform symptom disorder into consideration when crafting the RFC, as the ALJ 22 included limitations “over and above what was supported by his physical condition.” Tr. 24-26. 23 As such, any error is harmless.”); Sara Ann W. v. Comm’r of Soc. Sec., No. 2:17-CV-00277- 24 RHW, 2018 WL 4088771, at *4 (E.D. Wash. Aug. 27, 2018) (“Plaintiff contends that the ALJ 25 erred by characterizing her impairment as ‘pain disorder’ and finding it a severe impairment 26 at step two, rather than specifically characterize the impairment as ‘somatoform disorder’ or 27 ‘somatoform pain disorder[,]’ . . . [but] [w]hile Plaintiff argues that the ALJ's characterization of 1 additional limitations that were not included by the ALJ in assessing her residual functional 2 capacity [as] [h]ere, the ALJ found Plaintiff's pain disorder to be severe and accounted for the 3 symptoms.”). 4 The Court further finds the case distinguishable from Spillane because there, the ALJ did 5 find the related and overlapping diagnoses severe, and thus the overlapping limitations were 6 considered at step four. See Spillane, 2012 WL 3993549, at *9. (“[W]hether characterized as a 7 somatization disorder, depressive disorder, or anxiety disorder (and the exact diagnoses here 8 differ among plaintiff's treating and examining sources), the ALJ found plaintiff's manifesting 9 symptoms of depression and anxiety to be severe at step two and properly considered their 10 associated limitations at all steps of the sequential evaluation process, as discussed further 11 below.”). 12 Accordingly, the Court finds the ALJ erred at step two, and the error was not rendered 13 harmless at step four. 14 F. The Court finds Remand is Appropriate 15 The ordinary remand rule provides that when “the record before the agency does not 16 support the agency action, . . . the agency has not considered all relevant factors, or . . . the 17 reviewing court simply cannot evaluate the challenged agency action on the basis of the record 18 before it, the proper course, except in rare circumstances, is to remand to the agency for 19 additional investigation or explanation.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 20 1090, 1099 (9th Cir. 2014). This applies equally in Social Security cases. Treichler, 775 F.3d at 21 1099. Under the Social Security Act “courts are empowered to affirm, modify, or reverse a 22 decision by the Commissioner ‘with or without remanding the cause for a rehearing.’ ” 23 Garrison, 759 F.3d at 1019 (quoting 42 U.S.C. § 405(g)). The decision to remand for benefits is 24 discretionary. Treichler, 775 F.3d at 1100. In Social Security cases, courts generally remand 25 with instructions to calculate and award benefits when it is clear from the record that the 26 claimant is entitled to benefits. Garrison, 759 F.3d at 1019. Even when the circumstances are 27 present to remand for benefits, “[t]he decision whether to remand a case for additional evidence 1 v. Sullivan, 876 F.2d 683, 689 (9th Cir. 1989)). 2 The Ninth Circuit has “devised a three-part credit-as-true standard, each part of which 3 must be satisfied in order for a court to remand to an ALJ with instructions to calculate and 4 award benefits: (1) the record has been fully developed and further administrative proceedings 5 would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for 6 rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly 7 discredited evidence were credited as true, the ALJ would be required to find the claimant 8 disabled on remand.” Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). The credit as true 9 doctrine allows “flexibility” which “is properly understood as requiring courts to remand for 10 further proceedings when, even though all conditions of the credit-as-true rule are satisfied, an 11 evaluation of the record as a whole creates serious doubt that a claimant is, in fact, disabled. 12 Garrison, 759 F.3d at 1021. 13 The Court finds that based on the ALJ’s opinion and review of the record, significant 14 doubts remain as to whether Plaintiff is in fact disabled. The Court orders this action remanded 15 for further administrative proceedings consistent with this opinion, and to further develop the 16 record as deemed necessary. The Court declines to make specific findings as to whether the 17 ALJ’s finding of Plaintiff’s hand impairments as nonsevere would be proper in the absence of 18 error as to Plaintiff’s somatoform symptom disorder. See Iverson, 2012 WL 5330978, at *4 19 (“This is particularly true where the claimant has significant mental and physical impairments, 20 each of which results in some restrictions on her ability to function . . . [and] there is nothing to 21 indicate that the ALJ considered somatoform disorder in combination with any other 22 impairments, either mental or physical[,] [an] omission [] particularly glaring given that 23 somatoform disorder is defined by reference to physical symptoms.”). 24 / / / 25 / / / 26 / / / 27 / / / 1 V. 2 RECOMMENDATION AND ORDER 3 Based on the foregoing, IT IS HEREBY RECOMMENDED that: 4 1. Plaintiff's appeal from the decision of the Commissioner of Social Security (ECF 5 No. 13) be GRANTED; and 6 2. The Clerk of the Court be DIRECTED to enter judgment in favor of Plaintiff Lisa 7 L. Madrid and against Defendant Commissioner of Social Security and close this 8 case. 9 These findings and recommendations are submitted to the district judge assigned to this 10 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen 11 | 14) days of issuance of this recommendation, any party may file written objections to the 12 | findings and recommendations with the Court. Such a document should be captioned 13 | “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge will 14 | review the magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 15 | 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may 16 | result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 17 | (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 18 IT IS FURTHER ORDERED that the Clerk of the Court be DIRECTED to randomly 19 | assign a District Judge to this action. 20 IT IS SO ORDERED. DAM Le 22 | Dated: _April 5, 2023_ ef 33 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28