United States District Court, D. Arizona
Juanita T. Aguayo, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.
ORDER
Honorable Deborah M. Fine United States Magistrate Judge.
Plaintiff
Juanita T. Aguayo appeals from the denial of her application
for benefits from the Social Security Administration. This
Court has jurisdiction pursuant to 42 U.S.C. § 405(g)
and, with the parties' consent to Magistrate Judge
jurisdiction, pursuant to 28 U.S.C. § 636(c). As
detailed below, the Court concludes that the ALJ's
opinion contains non-harmless legal error and remands for an
award of benefits.
Background
Aguayo
was 52 years old on the alleged onset date. (Tr. 12, 32) She
has a GED and past relevant work that included appointment
clerk. (Tr. 52-53)
The ALJ
decision followed the requisite five step process. (Tr.
12-22) The ALJ found that Aguayo had not engaged in any
substantial gainful activity since her alleged onset date.
(Tr. 14) Next, the ALJ found that Aguayo had the following
severe impairments: fibromyalgia, degenerative disc disease
of the cervical spine, and rheumatoid arthritis. (Tr. 14-16)
However, these impairments did not meet or medically equal
the severity of any listed impairments. (Tr. 16-17) The ALJ
found that Aguayo had the residual functional capacity to
perform sedentary work subject to several additional
limitations. (Tr. 17-20) As part of this finding, the ALJ
concluded that the record did not support Aguayo's
alleged limitations. Accordingly, the ALJ found that Aguayo
was capable of performing her past relevant work as an
appointment clerk and, therefore, did not meet the Social
Security Act's definition of disability. (Tr. 20-22)
Standard
of Review
This
court must affirm the ALJ's findings if they are
supported by substantial evidence and are free from
reversible error. Marcia v. Sullivan, 900 F.2d 172,
174 (9thCir. 1990). Substantial evidence is more
than a mere scintilla, but less than a preponderance; it is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971). In
determining whether substantial evidence supports the
ALJ's decision, the court considers the record as a
whole, weighing both the evidence that supports and that
which detracts from the ALJ's conclusions. Reddick v.
Chater, 157 F.3d 715, 720 (9th Cir. 1998). If
there is sufficient evidence to support the ALJ's
determination, the Court cannot substitute its own
determination. See Young v. Sullivan, 911 F.2d 180,
184 (9thCir. 1990). Thus, the Court must affirm
the ALJ's decision where the evidence considered in its
entirety substantially supports it and the decision is free
from reversible error. 42 U.S.C. § 405(g); Hammock
v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989).
In
evaluating the credibility of a claimant's testimony
regarding alleged symptoms, an ALJ must engage in a two-step
analysis. Smolen v. Chater, 80 F.3d 1273, 1290
(9th Cir. 1996). First, the ALJ must determine
whether there is objective medical evidence of an underlying
impairment that could reasonably be expected to produce the
alleged symptoms. Id. at 1281. Second, when there is
no affirmative evidence suggesting malingering, the ALJ must
also set forth “specific, clear and convincing
reasons” before it can reject a claimant's
testimony about the severity of symptoms. Id. at
1283-84. See Dodrill v. Shalala, 12 F.3d 915, 918
(9th Cir. 1993). The clear and convincing standard
is the most heightened standard in Social Security Law.
Moore v. Soc. Sec. Admin., 278 F.3d 920
(9th Cir. 2002). Once an underlying impairment is
verified, an ALJ cannot use a lack of full and objective
medical corroboration to reject a claimant's subjective
symptoms. Cotton v. Bowen, 799 F.2d 1403, 1407
(9th Cir. 1986), superseded by statute on
other grounds as stated in Bunnell v. Sullivan, 912 F.2d
1149 (9th Cir.1990). To support a finding that the
symptoms are not credible, the ALJ must offer specific
findings properly supported by the record in sufficient
detail to allow a reviewing court to review the findings for
permissible grounds and freedom from arbitrariness.
(Id.)
Analysis
On
appeal, Aguayo argues that the ALJ did not provide specific,
clear and convincing reasons for discounting her symptom
testimony. (Doc. 15) The Court agrees.
The
portion of ALJ's opinion that evaluated Aguayo's
symptom testimony started with the conclusion that
Aguayo's “treatment records, examination results,
and generally conservative treatment history did not fully
support [her] allegations.” (Tr. 18) The following
paragraph discussed some of her treatment records. First, the
opinion noted that Aguayo was in “moderate” and
“extreme” distress according to 2013 provider
notes, that she was not in “acute distress”
during three emergency department trips between September
2014 and March 2015 for fibromyalgia flares, and that her
records indicated that she was not in acute distress at a
June 2015 provider appointment “despite alleging a pain
score of ten out of possible ten.” (Tr. 18) It appears
that the opinion discounted her pain allegations because the
records did not document “acute distress.” This
is not a specific, clear and convincing reason. Her pain was
sufficient to warrant trips to the emergency department and
the ALJ's opinion does not explain why documentation of
“acute distress” -presumably a condition that
would wax and wane like fibromyalgia itself-is needed to
conclude that her statements about her pain were credible.
The
following paragraph detailed Aguayo's examination
results. First, the opinion found that Aguayo's
“subjective limitations were not fully supported by
examination results throughout the record, which were often
unremarkable and, in some instances, minimal.” (Tr. 18)
This broad conclusion was followed by over two dozen
citations to the record. (Tr. 18-19) The opinion then stated,
without citation, that Aguayo's “subjective
allegation of a constant pain rated at an average of seven to
nine was not constant with physical examination findings
through the record.” To the extent that this statement
was intended as a summary of the earlier citation string, it
cannot stand because there is insufficient detail to allow
this Court to review the findings. See Cotton, 799
F.2d at 1407. Finally, the paragraph states,
“[s]ignificantly, the undersigned noted the claimant
was assessed with bilateral upper extremity motor strength
graded 5/5 (Exhibits 1F/68 and 3F/5), which undermined the
claimant's subjective allegations of experiencing
problems with her hands.” (Tr. 19) The Court notes that
both of the citations were to the same document, a July 2013
appointment with a nurse practitioner who never saw Aguayo
again. (Tr. 357) Moreover, Aguayo testified at the November
2014 hearing that she dropped things “daily” and
that her “symptoms [had] increased in the last year or
two.” (Tr. 43) Thus, the earlier medical note and her
later testimony were consistent.
The
following paragraph contains no citations and starts with the
conclusion that Aguayo's “generally conservative
treatments undermined her allegations of disabling
pain” and then states that “[r]eview of available
treatment records did not show evidence of physical therapy
or injection therapy. In fact, the only noted injection was
of Toradol during an office visit on September 16, 2014.
There was no suggestion of surgical intervention for
[Aguayo's] degenerative disc disease.” (Tr. 19)
These statements are without any supporting citation and,
therefore, cannot support the opinion's conclusions.
Moreover, these statements imply that the ALJ had
impermissibly made conclusions about what kind of medical
treatment Aguayo should have received.
Finally,
this paragraph states that Aguayo's pain could not be
particularly severe because her treatment records showed
that, as she testified, she weaned herself off of oxycodone.
The Court disagrees and notes that she went to the emergency
department in March 2015 in severe pain after, ...