Annette P. v. Comm'r of Soc. Sec. Admin.

578 F.Supp.3d 1179

ANNETTE P.,¹ Plaintiff,

v.COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

Case No. 2:21-cv-00438-JR

United States District Court, D. Oregon.

Signed January 4, 2022

Jeffrey Hugh Baird, Dellert Baird Law Office, Portland, OR, for Plaintiff.

Edmund (Jack) Darcher, Social Security Administration Office of the General Counsel, Region X, Seattle, WA, Renata Gowie, U.S. Attorney's Office, Portland, OR, for Defendant.

OPINION AND ORDER

RUSSO, Magistrate Judge:

Plaintiff Annette P. brings this action for judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for Title XVI Social Security Income under the Social Security Act. All parties have consented to allow a Magistrate Judge enter final orders and judgement in this case in accordance with Fed. R. Civ. P. 73 and 28 U.S.C. § 636(c). For the reasons set forth below, the Commissioner's decision is reversed, and this case is remanded for further proceedings.

PROCEDURAL BACKGROUND

Born in February 1964, plaintiff alleges disability beginning March 20, 2017, due to kidney stones, posttraumatic stress disorder, anxiety, and depression. Tr. 37, 207, 230. Her application was denied initially and upon reconsideration. Tr. 116-26. On August 12, 2019, a hearing was held before an Administrative Law Judge ("ALJ"), wherein plaintiff was represented by counsel and testified, as did a vocational expert ("VE") and a medical expert. Tr. 34-70. On August 28, 2019, the ALJ issued a decision finding plaintiff not disabled. Tr. 17-28. After the Appeals Council denied her request for review, plaintiff filed a complaint in this Court. Tr. 5-10.

THE ALJ'S FINDINGS

At step one of the five step sequential evaluation process, the ALJ found plaintiff had not engaged in substantial gainful activity since the amended alleged onset date. Tr. 19. At step two, the ALJ determined the following impairments were medically determinable and severe: "chronic nephrolithiasis² ; major depressive disorder ; generalized anxiety disorder ; borderline personality disorder ; posttraumatic stress disorder." Id. At step three, the ALJ found plaintiff's impairments, either singly or in combination, did not meet or equal the requirements of a listed impairment. Tr. 20.

Because she did not establish presumptive disability at step three, the ALJ continued to evaluate how plaintiff's impairments affected her ability to work. The ALJ resolved that plaintiff had the residual function capacity ("RFC") to perform medium exertion work except:

[She] can understand, remember, and carry out simple, routine, tasks, and instructions. She can maintain concentration persistence, or pace for two-hour intervals between regularly scheduled breaks. [Plaintiff] requires a predictable environment in which changes are seldom. [Plaintiff] can make simple judgments. [She] is precluded from fast-paced production rate of work. [Plaintiff] can handle occasional interaction with the public or coworkers.

Tr. 22.

At step four, the ALJ determined plaintiff had no past relevant work. Tr. 26. At step five, the ALJ concluded, based on the VE's testimony, that there were a significant number of jobs in the national economy plaintiff could perform despite her impairments, such as hospital cleaner, laundry worker, and janitor. Tr. 27-28.

DISCUSSION

Plaintiff argues the ALJ erred by: (1) discrediting her subjective symptom statements; and (2) rejecting the medical opinion of treating nephrologist Robert Pinnick, M.D. Alternatively, plaintiff maintains that "the administrative proceedings were tainted by the unconstitutional appointment of a Commissioner who was subsequently removed from office for reasons relating to the handling of disability adjudications." Pl.’s Opening Br. 12 (doc. 12).

I. Plaintiff's Testimony

Plaintiff contends the ALJ erred by discrediting her testimony concerning the extent of her physical impairments.³ When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms complained of, and the record contains no affirmative evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of ... symptoms only by offering specific, clear and convincing reasons for doing so." Smolen v. Chater , 80 F.3d 1273, 1281 (9th Cir. 1996) (internal citation omitted). A general assertion the claimant is not credible is insufficient; the ALJ must "state which ... testimony is not credible and what evidence suggests the complaints are not credible." Dodrill v. Shalala , 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. Shalala , 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted).

Thus, in formulating the RFC, the ALJ is not tasked with "examining an individual's character" or propensity for truthfulness, and instead assesses whether the claimant's subjective symptom statements are consistent with the record as a whole. SSR 16-3p, available at 2016 WL 1119029. If the ALJ's finding regarding the claimant's subjective symptom testimony is "supported by substantial evidence in the record, [the court] may not engage in second-guessing." Thomas v. Barnhart , 278 F.3d 947, 959 (9th Cir. 2002) (internal citation omitted).

At the hearing, plaintiff testified that her "chronic kidney stone disease" physically prevented her from working. Tr. 55. Plaintiff indicated that this condition caused frequent renal kidney stones, which manifested in kidney pain and "blood in [her] urine all the time," which in turn resulted in anemia and associated fatigue. Tr. 56. She testified that it takes anywhere from two days to several weeks to pass a stone, depending on its size and location. Tr. 57. During that period, plaintiff is nonfunctional, spending her time trying to manage the pain symptoms by laying down to stretch out her kidneys, "[d]rinking water like crazy" and "taking massive quantities of pain meds." Tr. 57-59.

In terms of work activity, plaintiff explained that she had two part-time on-call jobs, one for a construction company and one for a touring company. Tr. 60-65. The former typically resulted in four-to-five hour shifts and the latter resulted in two hour shifts, each once or twice per week. Tr. 61-62. Plaintiff testified that her employers understood she would not show up to the job site, or would leave early, when she was experiencing "kidney problems," which interfered with her work activity approximately 30% of the time. Tr. 61-64.

After summarizing her hearing testimony, the ALJ determined that plaintiff's medically determinable impairments could reasonably be expected to produce some degree of symptoms, but her "statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision." Tr. 23. The ALJ cited to plaintiff's failure to "receive ongoing medical treatment for either physical or mental impairments," as well as her lack of "reported earnings from 2007 through 2017."⁴ Tr. 23-24.

In discussing the former, the ALJ found that plaintiff's explanation for her lack of mental health treatment – i.e., "her discomfort and fear of what is happening" – "untenable" because, "[l]ogically, this fear would cause her to be more likely to seek treatment, rather than less," especially given that she has had "positive results" from counseling in the past. Tr. 23. As such, the ALJ only addressed plaintiff's mental health testimony with the requisite specificity. Regarding physical impairments, the ALJ did not inquire, and plaintiff did not proffer any testimony concerning her course of treatment, at the hearing, except to note that she was under Dr. Pinnick's care and had gone to the emergency room to obtain antibiotics and pain medication. Tr. 55, 57-59; see also Clarke v. Berryhill , 694 Fed.Appx. 577, 578 (9th Cir. 2017) ("[w]hen an ALJ makes an adverse credibility finding but fails to specify what testimony he finds not credible or why he came to this conclusion, he errs").

In any event, it is beyond dispute that plaintiff suffers from a genetic condition that results in kidney stones. See Revels v. Berryhill , 874 F.3d 648, 667 (9th Cir. 2017) ("[a]ny evaluation of the aggressiveness of a treatment regimen must take into account the condition being treated"). The ALJ accepted chronic nephrolithiasis as a severe, medically determinable impairment at step two and the defining symptom associated with that condition is recurrent and unpredictable pain associated with passing the stone. See Fellows v. Baca , 2013 WL 12238537, *9 (C.D. Cal. June 27), adopted by 2013 WL 12238844 (C.D. Cal. Aug. 14, 2013) ("[k]idney stones are considered one of the most painful of the urologic disorders") (citation and internal quotations omitted).

There is no reference in the record to any additional, available care that plaintiff failed to obtain. See Tr. 699-700, 738-39 (chart notes reflecting that kidney stone treatment is limited to increasing water intake and taking pain medication while "await[ing] passage"; medical intervention is recommended only if an infection or unmanageable pain develops). Indeed, as plaintiff denotes, "[t]here is no curative, or even preventative, treatment for this condition." Pl.’s Reply Br. 3 (doc. 14); see also Lapeirre-Gutt v. Astrue , 382 Fed.Appx. 662, 664 (9th Cir. 2010) ("[a] claimant cannot be discredited for failing to pursue non-conservative treatment options where none exist"). Accordingly, without more, the ALJ's reliance on plaintiff's failure to seek treatment for her kidney condition is not legally sufficient.

The ALJ's final reason – i.e., plaintiff's "lack of work activity [being] the result of a non-disability related reason" – is likewise not sufficient. The...