United States District Court, W.D. Washington, Seattle
ORDER REVERSING AND REMANDING FOR FURTHER
A. TSUCHIDA United States Magistrate Judge
Thompson appeals the ALJ's decision finding him not
disabled. He contends the ALJ erred in (1) failing to find
headaches are a severe impairment; (2) rejecting four
doctors' opinions about his mental limitations, and two
doctors' opinions about his physical limitations; and (3)
failing to develop the record. Dkt. 15. The Court agrees the
ALJ harmfully erred and accordingly REVERSES
the Commissioner's final decision and
REMANDS the case for further administrative
proceedings under sentence four of 42 U.S.C. § 405(g).
A. Head Aches and Step Two Findings
two the ALJ found Mr. Thompson has several physical and
mental conditions but made no mention of headaches at the
step or at any subsequent step. Mr. Thompson argues the ALJ
erred in failing to find his severe and chronic headaches are
a severe impairment and harmfully erred in failing to
consider the impact of the headaches on his ability to
perform gainful work. Dkt. 15 at 15-16. The Commissioner
argues the ALJ did not err because there are “no
anatomical or physiological abnormalities shown by medically
acceptable clinical and laboratory techniques” that
prove he has headaches. Dkt. 16 at 2. However, the ALJ did
not find Mr. Thompson's headaches are not medically
determinable. In fact, the ALJ did not mention headaches at
all. The Commissioner's argument is consequently an
improper post-hoc rationalization the Court cannot rely on to
affirm the ALJ. See Pinto v. Massanari, 249 F.3d
840, 847-48 (9th Cir. 2001). The Court reviews the ALJ's
decision “based on the reasoning and findings offered
by the ALJ-not post hoc rationalizations that attempt to
intuit what the adjudicator may have been thinking.”
Bray v. Comm'r of SSA, 554 F.3d 1219, 1225 (9th
Commissioner's argument also assumes there are tests or
procedures that could have been utilized to substantiate an
abnormality causing Mr. Thompson's headaches. But no such
test exists. See e.g. Spiteri v. Colvin, No.
16-1937, 2016 WL 7425924 at *11 (N.D. Cal. Dec. 23, 2016)
(There is no test for migraine headaches.”); Hansen
v. Colvin, 15-190, 2016 WL 4582041 at * 4 (D. Idaho
Sept. 1, 2016) (ALJ's step two ruling required proof of
“'objective' evidence for her migraines when no
such evidence would have been attainable.”);
McPherson v. Colvin, No. 15-5363, 2015 WL 6692243,
at * 5 (W.D. Wash. Nov. 2, 2015) (“there is no
objective clinical test which can corroborate”
existence of migraine headaches.).
record shows the ALJ failed to discuss or address Mr.
Thompson's headaches. This failure is not harmless. This
isn't a case in which there is no evidence Mr. Thompson
suffers from chronic headaches. On the contrary, as the
parties' note, Mr. Thompson's medical providers
repeatedly state one of his “chronic problems” is
chronic post-trauma headache, ” and repeatedly noted
the problem in Mr. Thompson's medical records. Dkt. 15 at
15; Dkt. 16 at 2. Furthermore the record shows the headaches
have more than a minimal impact on Mr. Thompson. He testified
his headaches affected his ability to work, Tr. 46, 155, and
treating doctor Raji Venkateswaran, M.D. wrote Mr. Thompson
“reports ha in forehead, worse with light, and reading.
Has x 2 years not eval well at HMC, diff to do tasks, Has
occur 3-4 times.” Tr. 490.
the ALJ harmfully erred in failing to address the impact of
headaches on Mr. Thompson's ability to perform work.
There is ample medical evidence that Mr. Thompson suffers
from headaches and that it has some impact on his ability to
perform to perform gainful work. In order to properly
determine Mr. Thompson's RFC, the ALJ was required to
consider all of the relevant medical opinions as well as the
combined effects of all of plaintiff's impairments, even
those not found to be severe. See 20 C.F.R.
§§ 404.1545(a), 416.945(a), see also Celaya v.
Halter, 332 F.3d 1177, 1182 (9th Cir.2003) (the ALJ
“must consider limitations and restrictions imposed by
all of an individual's impairments, even those that are
not severe” when assessing the RFC) (quoting SSR 96-8p)
(internal quotations omitted). This did not occur because the
ALJ completely disregarded headaches; the case accordingly
must therefore be remanded for further proceedings.
The ALJ's Evaluation of Medical Evidence Regarding Mental
Thompson argues the ALJ misevaluated the opinions of Dr.
Carmela Washington Harvey, Robert Parker, Ph.D., George
Ankuta, Ph.D., David Widlan, Ph.D., Raji Venateswaran, M.D.,
Dkt. 15 at 3-10. Because the ALJ failed to address, in any
fashion, the impact of Mr. Thompson's chronic headaches
on his ability to work, the ALJ's assessment of the
medical evidence regarding Mr. Thompson's mental
functioning can no longer be deemed supported by substantial
evidence and must be revisited. What is obviously missing
from the ALJ's assessment of Mr. Thompson's RFC, and
which must be developed further, is the effect his chronic
headaches have, singly or in combination, with his other
mental impairments and limitations. Although the case must be
remanded for reassessment of the medical opinions above, the
ALJ's treatment of the opinions of Drs. Harvey, Parker
and Widlan merit additional discussion.
Drs. Harvey, Parker, Venkateswaran
did not mention Drs. Harvey, Parker or Venkateswaran. The
Commissioner argues the ALJ did not have to consider these
doctors' opinions because they were given before December
2013 and are thus irrelevant. Dkt. 16 at 3-4. Of course this
is but an impermissible post-hoc justification because the
ALJ did not address Drs. Harvey or Parker at all.
Court also rejects the notion the opinions are irrelevant
because they predate the “period under the ALJ's
consideration.” Id. Mr. Thompson applied for
Supplemental Security Income (SSI) in December 2013, alleging
disability beginning April 2003. Tr. 12. Under 20 C.F.R.
§§ 416.330(a); 416.355, the earliest month an SSI
applicant is eligible to receive benefits is the month
following the month the SSI application is filed. But while
the regulations set the earliest date an applicant can
receive benefits, they “say nothing about when a
claimant's disability actually begins.” Owen v.
Colvin, No.15-5933-KLS, 2016 WL 6080910 at *3 (W.Wash.
Oct. 18, 2016). Here Mr. Thompson claimed he became disabled
in 2003. Dr. Harvey rendered her opinion in April 2010, Tr.
292. Dr. Parker rendered his opinion in March 2011 and 2012.
Tr. 313-26. Dr. Venkateswaran rendered his opinion in March
2010. The opinions are relevant evidence about Mr.
Thompson's functional limitations because the ALJ made no
findings that he improved between the time the opinions were
given, and the time he became eligible to receive benefits.
In other words, Mr. Thompson could have become disabled in
2010 and because his condition did not improve, continued to
be disabled at the time he applied for SSI benefits.
Court also rejects the Commissioner's argument that
Vasquez ex rel. S.R.A. v. Astrue, No EDCV0800449AJW,
2009 WL 1444728, at * 1. n. 1 (C.D. Cal. May 19, 2009),
authorizes the ALJ to completely ignore without comment the
opinions or to find them irrelevant. Dkt. 16 at 3, n. 2. The
case is not binding precedent and conflates “disability
onset” with the earliest date an SSI claimant can be
paid. Virtually all disability claims substantially rely on
evidence predating the date the disability application is
filed. This is because a claimant needs evidence of
disability to apply for benefits, and that evidence
necessarily involves records, statements, and opinions that
predate the application. The ALJ must assess what weight
evidence of record is given and may discount it in the
appropriate case. For instance, the ALJ may reject medical
opinions due to improvements to the claimant's physical
or mental condition between the time the opinion was rendered
and the relevant time at issue. But the mere fact a claimant
became disabled before he or she is eligible to begin
receiving SSI benefits does not render evidence from the
onset of disability irrelevant. For example, a claimant
permanently loses all ability to see, and the only medical
evidence of this loss are records from the claimant's