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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
KIMBERLYN J. P.,1
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant. Case No. 3:20-cv-00109-SLG
DECISION AND ORDER
On or about January 25, 2016, Kimberlyn J.P. (“Plaintiff”) filed an application
for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“the
Act”),2 alleging disability beginning September 1, 2014.3 On August 9, 2019, this
Court reversed the Social Security Administration’s final decision and remanded
1 Plaintiff’s name is partially redacted in compliance with Federal Rule of Civil Procedure
5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case
Management of the Judicial Conference of the United States. See Memorandum, Committee on
Court Administration and Case Management of the Judicial Conference of the United States (May
1, 2018), available at www.uscourts.gov/sites/default/files/18-cv-l-suggestion_cacm_0.pdf.
2 Title II of the Social Security Act provides benefits to disabled individuals who are insured by
virtue of working and paying Federal Insurance Contributions Act (FICA) taxes for a certain
amount of time. Title XVI of the Social Security Act is a needs-based program funded by general
tax revenues designed to help disabled individuals who have low or no income. Plaintiff brought
claims under Title II in this case. Although each program is governed by a separate set of
regulations, the regulations governing disability determinations are substantially the same for both
programs. Compare 20 C.F.R. §§ 404.1501–1599 (governing disability determinations under Title
II) with 20 C.F.R. §§ 416.901–999d (governing disability determinations under Title XVI). For
convenience, the Court cites the regulations governing disability determinations under both titles.
3 Administrative Record (“A.R.”) 171–72, 698. The application summary is dated January 26,
2016. A.R. 171–72.
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for further proceedings.4 Plaintiff has exhausted her administrative remedies and
filed a Complaint seeking relief from this Court.5 Oral argument was not requested
and was not necessary to the Court’s decision. This Court has jurisdiction to hear
an appeal from a final decision of the Commissioner of Social Security.6 For the
reasons set forth below, Plaintiff’s request for relief will be granted.
I. STANDARD OF REVIEW
A decision by the Commissioner to deny disability benefits will not be
overturned unless it is either not supported by substantial evidence or is based
upon legal error.7 “Substantial evidence” has been defined by the United States
Supreme Court as “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”8 Such evidence must be “more than a mere
scintilla,” but may be “less than a preponderance.”9 In reviewing the agency’s
determination, the Court considers the evidence in its entirety, weighing both the
evidence that supports and that which detracts from the administrative law judge
4 A.R. 769–802.
5 Docket 1 (Plaintiff’s Compl.).
6 42 U.S.C. § 405(g).
7 Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citing Gonzalez v.
Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990)).
8 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)).
9 Id.; Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975) (per curiam).
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(“ALJ”)’s conclusion.10 If the evidence is susceptible to more than one rational
interpretation, the ALJ’s conclusion must be upheld.11 A reviewing court may only
consider the reasons provided by the ALJ in the disability determination and “may
not affirm the ALJ on a ground upon which [he] did not rely.”12 An ALJ’s decision
will not be reversed if it is based on “harmless error,” meaning that the error “is
inconsequential to the ultimate nondisability determination . . . or that, despite the
legal error, the agency’s path may reasonably be discerned, even if the agency
explains its decision with less than ideal clarity.”13 Finally, the ALJ has a “special
duty to fully and fairly develop the record and to assure that the claimant’s interests
are considered.”14 In particular, the Ninth Circuit has held that the ALJ’s duty to
develop the record increases when the claimant is unrepresented or is mentally ill
and thus unable to protect her own interests.15
10 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
11 Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citing Rhinehart v. Finch, 438 F.2d 920,
921 (9th Cir. 1971)).
12 Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).
13 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations
omitted).
14 Smolen v. Chater, 80 F.3d 1273,1288 (9th Cir. 1996) (quoting Brown v. Heckler, 713 F.2d 441,
443 (9th Cir. 1983)); see also Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014).
15 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001).
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II. DETERMINING DISABILITY
The Act provides for the payment of disability insurance to individuals who
have contributed to the Social Security program and who suffer from a physical or
mental disability.16 In addition, SSI may be available to individuals who are age 65
or older, blind, or disabled, but who do not have insured status under the Act.17
Disability is defined in the Act as follows:
[I]nability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.18
The Act further provides:
An individual shall be determined to be under a disability only if his
physical or mental impairment or impairments are of such severity that
he is not only unable to do his previous work but cannot, considering
his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy,
regardless of whether such work exists in the immediate area in which
he lives, or whether a specific job vacancy exists for him, or whether
he would be hired if he applied for work. For purposes of the
preceding sentence (with respect to any individual), “work which
exists in the national economy” means work which exists in significant
numbers either in the region where such individual lives or in several
regions of the country.19
16 42 U.S.C. § 423(a).
17 42 U.S.C. § 1381a.
18 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
19 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
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The Commissioner has established a five-step process for determining
disability within the meaning of the Act.20 A claimant bears the burden of proof at
steps one through four in order to make a prima facie showing of disability.21 If a
claimant establishes a prima facie case, the burden of proof then shifts to the
agency at step five.22 The Commissioner can meet this burden in two ways: “(a)
by the testimony of a vocational expert, or (b) by reference to the Medical-
Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2.”23 The steps, and the
ALJ’s findings in this case, are as follows:
Step 1. Determine whether the claimant is involved in “substantial gainful
activity.” The ALJ concluded that Plaintiff had not engaged in substantial gainful
activity from the alleged onset date of September 1, 2014, through the date last
insured of December 31, 2019.24
Step 2. Determine whether the claimant has a medically severe impairment
or combination of impairments. A severe impairment significantly limits a
claimant’s physical or mental ability to do basic work activities and does not
20 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
21 Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1096 n.1 (9th Cir. 2014) (quoting Hoopai
v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007)); see also Tackett v. Apfel, 180 F.3d 1094, 1098
(9th Cir. 1999).
22 Treichler, 775 F.3d at 1096 n.1; Tackett, 180 F.3d at 1098.
23 Tackett, 180 F.3d at 1101 (emphasis in original).
24 A.R. 700.
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consider age, education, or work experience. The severe impairment or
combination of impairments must satisfy the 12-month duration requirement. The
ALJ determined that Plaintiff had the following severe impairments: degenerative
disc disease of the lumbar spine; left shoulder impingement; and migraine
headache. The ALJ found that Plaintiff’s hip bursitis; sacroiliac (SI) joint
dysfunction; back pain; obesity; history of hernia and hypertension; and major
depressive disorder were non-severe.25
Step 3. Determine whether the impairment or combination of impairments
meets or medically equals the severity of any of the listed impairments found in 20
C.F.R. pt. 404, subpt. P, app.1. If the impairment(s) is(are) of a severity to meet or
medically equal any of the listed impairments and meet(s) the duration
requirement, the claimant is conclusively presumed to be disabled. If not, the
evaluation goes on to the fourth step. The ALJ determined that through the date
last insured, Plaintiff did not have an impairment or combination of impairments
that met or medically equaled the severity of a listed impairment.26
Before proceeding to step four, a claimant’s residual functional capacity
(“RFC”) is assessed. Once determined, the RFC is used at both step four and step
five. An RFC assessment is a determination of what a claimant is able to do on a
sustained basis despite the limitations from her impairments, including
25 A.R. 700–01.
26 A.R. 702–03.
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impairments that are not severe.27 The ALJ concluded that through the date last
insured, Plaintiff had the RFC to perform light work except she was limited to sitting
and standing/walking for four hours each in an eight-hour workday; occasionally
climbing ramps or stairs; occasionally stooping and crouching; occasionally
reaching overhead with the left upper extremity; occasionally pushing/pulling with
the left upper extremity; occasionally climbing ladders, ropes, or scaffolds; and
avoiding concentrated exposure to excessive vibration.28
Step 4. Determine whether the claimant is capable of performing past
relevant work. At this point, the analysis considers whether past relevant work
requires the performance of work-related activities that are precluded by the
claimant’s RFC. If the claimant can still do her past relevant work, the claimant is
deemed not to be disabled. Otherwise, the evaluation process moves to the fifth
and final step. The ALJ found that through the date last insured, Plaintiff was
“capable of performing past relevant work as a quality control mortgage loan
officer.”29
Step 5. Determine whether the claimant is able to perform other work in the
national economy in view of her age, education, and work experience, and in light
of the RFC. If so, the claimant is not disabled. If not, the claimant is considered
27 20 C.F.R. § 404.1520(a)(4).
28 A.R. 703.
29 A.R. 708–09.
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disabled. The ALJ determined that Plaintiff was capable of performing past
relevant work and did not proceed to Step 5.30
The ALJ concluded that Plaintiff was not disabled from September 1, 2014,
through December 31, 2019, the date last insured.31
III. PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff was born in 1964; she is 56 years old.32 She reported working as a
quality control officer at a mortgage company from August 1998 to August 2014.33
On September 26, 2016, the Social Security Administration (“SSA”) determined
that Plaintiff was not disabled under the applicable rules.34 After Plaintiff appeared
and testified with representation at a hearing on August 14, 2017, the ALJ issued
an unfavorable ruling.35 On June 25, 2018, the Appeals Council denied Plaintiff’s
request for review.36 Plaintiff timely appealed to this Court. The Court reversed
and remanded for further proceedings on August 9, 2019; the Court directed the
Commissioner “to review [Plaintiff’s] combination of impairments, adjust the RFC
30 A.R. 708–09.
31 A.R. 709.
32 A.R. 171–72.
33 A.R. 46–50, 191–93.
34 A.R. 74.
35 A.R. 12–25, 46–56.
36 A.R. 1–5.
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as warranted, and proceed to steps four and five as appropriate.”37 After a second
hearing, the ALJ issued a second unfavorable decision on March 4, 2020.38
Plaintiff exhausted her administrative remedies and requested review by this Court
on May 12, 2020.39
IV. DISCUSSION
Plaintiff is represented by counsel. In her opening brief, Plaintiff asserts that
the ALJ harmfully erred by: (1) failing to consider all of Plaintiff’s medically
determinable impairments; (2) rejecting Plaintiff’s symptom testimony; (3) rejecting
lay witness reports from Todd Pedersen and Roger Aldrich; and (4) rejecting Dr.
Maya’s medical opinion.40 The Commissioner disputes Plaintiff’s assertions.41 The
Court will address each of Plaintiff’s assertions in turn:
A. The ALJ’s Step Two Finding
Plaintiff alleges that the ALJ failed to consider Plaintiff’s chronic pain
syndrome and hip impairments at Step Two of the sequential disability process and
in the RFC assessment.42 The Commissioner does not address Plaintiff’s Step
37 A.R. 769–802.
38 A.R. 695–709.
39 Docket 1.
40 Docket 25 at 1–25.
41 Docket 26 at 3–9.
42 Docket 25 at 2–5.
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Two argument directly, instead asserting that “the ALJ corrected the error from his
prior decision” and therefore, “Plaintiff’s argument here presents no basis for
reversal.”43
At Step Two of the ALJ’s sequential disability evaluation, a claimant must
make a threshold showing that her medically determinable impairments
significantly limit her ability to perform basic work activities.44 However, Step Two
is a “de minimis screening device [used] to dispose of groundless claims.”45 It is
“not meant to identify the impairments that should be taken into account when
determining the RFC.”46 The Ninth Circuit has held that an ALJ’s failure to address
an impairment at Step Two was harmless error when the ALJ considered the
limitations posed by the impairment at a later step in the sequential disability
evaluation.47
43 Docket 26 at 3.
44 Bowen v. Yuckert, 482 U.S. 137, 145 (1987); 20 C.F.R. §§ 404.1521 (effective until Mar. 27,
2017); see also Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (ALJ must have substantial
evidence to find that medical evidence clearly establishes that claimant lacks medically severe
impairment or combination of impairments); 20 C.F.R. § 404.1520 (a), (c).
45 Webb, 433 F.3d at 687.
46 Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017).
47 Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (holding the ALJ’s failure to consider bursitis
at Step Two, if error, was harmless because the ALJ considered any limitations posed by the
bursitis at Step Four); Buck, 869 F.3d at 1048–49 (“Step two is merely a threshold determination
meant to screen out weak claims,” and is “not meant to identify the impairments that should be
taken into account when determining the RFC.” Therefore, the RFC should be “exactly the same
regardless of whether certain impairments are considered ‘severe’ or not.”) (internal citations
omitted).
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1. Chronic Pain Syndrome
The record indicates that Kenneth Boomgaard, M.D., of AA Spine & Pain
Clinic, diagnosed Plaintiff with chronic pain syndrome on October 11, 2016.48
Medical providers continued to diagnose Plaintiff with chronic pain syndrome and
prescribed pain medications specifically for chronic pain syndrome at multiple
visits.49 Additionally, Plaintiff complained of back pain, shoulder pain, neck pain,
and hip and SI joint pain throughout the record.50 However, the ALJ did not identify
or discuss chronic pain syndrome at Step Two, or anywhere else in the decision.
Instead, the ALJ summarily concluded that Plaintiff’s pain was controlled with
treatment, citing four treatment records, and that Plaintiff’s pain condition “resulted
in no more than transient symptoms during the relevant time.”51 However, as
discussed below, the record does not contain substantial evidence that supports
the ALJ’s conclusion. The ALJ’s failure to separately address chronic pain
syndrome at Step Two was legal error.52
48 A.R. 434–37, 783.
49 E.g., A.R. 392–93, 399–400, 411–17, 432–36, 1212, 1232, 1241, 1247, 1271, 1284, 1291,
1301, 1309, 1321, 1339, 1351, 1362, 1367, 1380, 1404, 1421, 1447, 1452, 1476, 1488, 1520,
1532, 1539.
50 E.g., A.R. 285–314, 316–63, 386–87, 404–11, 432–48, 1221, 1226, 1232, 1241, 1247, 1253,
1259, 1265, 1278, 1284, 1291, 1302, 1309, 1315, 1339, 1345, 1368, 1392, 1396, 1404, 1407–
08, 1416, 1422, 1429, 1443, 1451, 1488, 1505, 1533, 1539.
51 A.R. 701.
52 20 C.F.R. § 404.1527(c) (for claims filed before March 27, 2017) (“Regardless of its source, we
will evaluate every opinion we receive.”); see also Lingenfelter v. Astrue, 504 F.3d 1028, 1045
(9th Cir. 2007) (“The decision of an ALJ fails . . . when the ALJ completely ignores or neglects to
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The Court’s next inquiry is whether the ALJ’s error at Step Two is harmless.
“Where an ALJ does not explicitly reject a medical opinion or set forth specific,
legitimate reasons for crediting one medical opinion over another, he errs.”53 Here,
the ALJ failed to address Dr. Boomgaard’s chronic pain syndrome diagnosis at all.
As a result, the ALJ did not adequately consider any limitations for Plaintiff’s
chronic pain syndrome in the RFC. Moreover, the ALJ’s failure to consider all of
Plaintiff’s impairments in the RFC, regardless of severity, was a deviation from the
Court’s previous order and legal error for this reason alone.54 Therefore, the ALJ’s
failure to address Dr. Boomgaard’s chronic pain syndrome diagnosis is not
harmless and constitutes reversable error.55
2. Hip Impairments
Plaintiff argues that the ALJ violated the law of the case doctrine by
determining that Plaintiff’s hip impairments were “non-severe” in the decision after
remand.56 The Ninth Circuit has held that the law of the case doctrine applies to
social security cases. This doctrine “generally prohibits a court from considering
mention a treating physician’s medical opinion that is relevant to the medical evidence being
discussed.”).
53 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (citation omitted).
54 Sullivan v. Hudson, 490 U.S. 877, 886 (1989) (“Deviation from the court’s remand order in the
subsequent administrative proceedings is itself legal error, subject to reversal on further judicial
review.”), overruled on other grounds in Shalala v. Schaefer, 509 U.S. 292, 300 n.4 (1993).
55 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015).
56 Docket 25 at 2–4.
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an issue that has already been decided by that same court or a higher court in the
same case.”57
In the first appeal, the Court pointed to evidence in the record dating back
to 2004 contradicting the ALJ’s determination that Plaintiff’s hip bursitis was
“transient” and did not cause significant vocational limitations.58 The Court held
that the ALJ had “failed to consider the combined effects of all of [Plaintiff]’s
impairments, including her SI joint disfunction and hip impairments.”59 As noted by
the Commissioner, the Court did not specifically order the ALJ to determine
Plaintiff’s hip impairments were severe.60 Instead, the remand order directed the
ALJ to conduct a new severity analysis. Therefore, the law of the case doctrine
does not apply. The Court finds no error in the ALJ conducting a new Step Two
severity analysis.
However, for the reasons set forth below, the ALJ did not adequately
consider Plaintiff’s hip impairments in combination with all of her impairments in
the formulation of the RFC.
57 Stacy v. Colvin, 825 F.3d 563, 567 (9th Cir. 2016) (“[T]he law of the case doctrine . . . appl[ies]
in the social security context.”).
58 A.R. 794.
59 A.R. 795.
60 Docket 26 at 2. And yet the Court acknowledges some lack of clarity on this topic in the prior
decision, as the Court stated there that ”the ALJ erred by failing to consider [Plaintiff’s] hip
impairments in combination with her other severe impairments,” which could be read to imply that
the Court had found the hip impairments were severe. A.R. 801.
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B. Plaintiff’s Symptom Allegations
The ALJ’s assessment of a claimant’s symptoms has two steps.61 First, the
ALJ determines whether the claimant has presented objective medical evidence
of an underlying impairment that “could reasonably be expected to produce the
pain or other symptoms alleged.”62 Here, the ALJ determined that Plaintiff’s
impairments could reasonably be expected to cause some of the alleged
symptoms that Plaintiff described.63
Second, “if the claimant has produced that evidence, and the ALJ has not
determined that the claimant is malingering, the ALJ must provide ‘specific, clear
and convincing reasons for’ rejecting the claimant’s testimony regarding the
severity of the claimant’s symptoms.”64 The ALJ must evaluate the consistency
between the claimant’s statements concerning the intensity, persistence, and
limiting effects of the symptoms and the medical evidence and other evidence in
the record.65 The ALJ is required to “specifically identify the testimony from a
61 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014).
62 Lingenfelter, 504 F.3d at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991)
(en banc)).
63 AR. 700.
64 Treichler, 775 F.3d at 1102 (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.1996)).
65 20 C.F.R. § 404.1529(c)(1). See also 20 C.F.R. § 404.1529(c)(3) (effective June 13, 2011, to
Mar. 26, 2017) (Important indicators of the intensity and persistence of a claimant’s symptoms
include information such as “what may precipitate or aggravate your symptoms, what
medications, treatments or other methods you use to alleviate them, and how the symptoms may
affect your pattern of daily living.”); SSR 16-3p.
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claimant she or he finds not to be credible and explain what evidence undermines
[that] testimony”; general findings are insufficient.66
Plaintiff testified at the hearing on February 13, 2020, that her migraines
were “more than a couple of times a month, in fact, weekly.”67 She testified that
her doctor had tried putting her on preventative medications, but the side effects
had been too severe. She indicated that she took medication for migraines, but
her monthly doses were limited. She reported having 15 untreated migraines per
month after running out of her monthly dose of migraine medication. Plaintiff
testified that her migraines prevented her from driving due to a loss of vision and
she had to “lay in the dark, no kids, no TV, none of that stuff.” She testified that
her migraines also caused vomiting, noise sensitivity, and lasted up to three days
at a time.68
Plaintiff also testified that pain in her low back, hips, and legs interfered with
her ability to focus approximately 10 days a month and that she had flare ups
about once every four months that made it difficult for her to walk and lay down
and prevented her from bending over. She indicated that each flare up lasted
between seven to ten days at a time. She testified that her doctors had reduced
66 Treichler, 775 F.3d at 1102 (quoting Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001));
Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995).
67 A.R. 726–27. At the hearing in August 2017, Plaintiff testified she had severe migraines two to
three times a month, lasting up to two days. A.R. 54.
68 A.R. 726–30.
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her pain medications due to a government or insurance company mandate. She
testified that she had received SI joint and hip bursitis injections, ablation on both
sides of her back, and that three different doctors had recommended SI joint
fusion.69
The ALJ found that Plaintiff’s medically determinable impairments could
reasonably be expected to cause her alleged symptoms, but that her statements
concerning the intensity, persistence, and limiting effects of these symptoms were
not entirely consistent with the medical evidence and other evidence in the record.
First, the ALJ found that “the longitudinal medical evidence of record is not
consistent with the degree of functional impact alleged.” The ALJ also noted that
the medical evidence since the last hearing decision did not fully support Plaintiff’s
alleged severity.70 However, this reason alone is not specific, clear, and
convincing, because an ALJ “may not discredit the claimant’s subjective
complaints solely because the objective evidence fails to fully corroborate the
degree of pain alleged.”71
In discounting Plaintiff’s symptom testimony, the ALJ also stated, “[m]uch of
the longitudinal evidence revealed routine follow-up for medication management.”
69 A.R. 726–36.
70 A.R. 704–05.
71 Coleman v. Saul, 979 F.3d 751, 756 (9th Cir. 2020) (citing Reddick v. Chater, 157 F.3d 715, 722
(9th Cir. 1998)).
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He noted that since August 2017, Plaintiff’s pain was under control with no reports
of side effects.72 The effectiveness of medication and improvement with other
treatment are factors an ALJ may consider in evaluating the intensity and
persistence of a claimant’s symptoms.73 However, the ALJ “must consider the
entire record as a whole and may not affirm simply by isolating a ‘specific quantum
of supporting evidence.’”74 Here, the ALJ cited four treatment records to conclude
that Plaintiff’s reports to providers that her pain was well controlled through
medication was inconsistent with Plaintiff’s testimony about the severity of her
symptoms.75
In the treatment records, Plaintiff repeatedly reported to treatment providers
constant, severe pain in the shoulders, low back, neck, head, and hips.76 As
Plaintiff points out in her briefing, the ALJ must consider symptoms recorded by
medical sources, including the description of the character and location of the
symptoms and changes over time.77 The ALJ did not mention the pain levels
72 A.R. 705.
73 20 C.F.R. § 404.1529 (c)(3); SSR 16-3p (Oct. 25, 2017), available at 2017 WL 5180304.
74 Hill v. Astrue, 388 F.3d 1144, 1159 (9th Cir. 2012) (internal citations omitted).
75 A.R. 705.
76 E.g., A.R. 285–314, 316–63, 386–87, 404–11, 432–48, 1221, 1226, 1232, 1241, 1247, 1253,
1259, 1265, 1278, 1284, 1291, 1302, 1309, 1315, 1339, 1345, 1368, 1392, 1396, 1404, 1407–
08, 1416, 1422, 1429, 1443, 1451, 1488, 1505, 1533, 1539.
77 SSR 16-3p at *6–7 (Oct. 25, 2017) (“Important information about symptoms recorded by
medical sources and reported in the medical evidence may include . . . [o]nset, description of the
character and location of the symptoms, precipitating and aggravating factors, frequency and
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Plaintiff reported to her providers in the decision. She reported pain levels ranging
from 3/10 to 8/10 to providers, while also reporting that her medications were
helpful overall.78 And, although the ALJ again discounted Plaintiff’s pain testimony
in part based on “normal strength,” the Court held previously that the record of
“treatment notes and other objective evidence of low back pain, hip pain, and
migraines . . . would not necessarily be outweighed by evidence of ‘normal
strength.’”79
Further, at the hearing in August 2017, Plaintiff testified that although her
doctor recommended surgery, Plaintiff’s insurance would not approve any fusions
at that time.80 The record also shows Plaintiff underwent medial branch blocks,
radiofrequency ablation, and steroid injections to relieve pain.81 In February 2020,
she testified that she had received SI joint injections, hip bursitis injections, and
RF ablation since August 2017.82
duration, change over a period of time (e.g., whether worsening, improving, or static), and daily
activities.”). See also Bunnell v. Sullivan, 947 F.2d 341, 347 (9th Cir. 1991) (“If an adjudicator
could reject a claim for disability simply because a claimant fails to produce medical evidence
supporting the severity of the pain, there would be no reason for an adjudicator to consider
anything other than medical findings.”).
78 E.g., A.R. 239, 243, 247, 251, 255, 259, 267, 285, 294–95, 303–04, 310, 316–17, 325, 334,
336, 347, 350, 354, 386, 390, 400–01, 406–07, 410, 413, 432, 434, 1196.
79 A.R. 705, 799.
80 A.R. 54.
81 A.R. 325, 401, 434, 735, 1131–35, 1204.
82 A.R. 735. At the hearing in August 2017, Plaintiff testified she had severe migraines two to
three times a month, lasting up to two days. A.R. 54.
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The record also shows Plaintiff was prescribed opioids and benzodiazepines
at the same time, which the pharmacist repeatedly noted, “should be reserved for
cases where alternatives are inadequate." The pharmacist also advised that
Plaintiff have access to naloxone.83 Plaintiff was hospitalized twice during the
relevant disability period for complications associated with her prescribed
medications.84 She reported headache pain and migraines throughout the relevant
time period and changed migraine prescriptions either due to reported side effects
or reports that the medication stopped providing relief.85 While Plaintiff reported
that medication helped control her migraines, she simultaneously reported that she
still experienced two to three migraines a week or five to six per month.86 She was
prescribed up to three different medications at a time for headaches.87 The ALJ
cited a treatment record from December 2019 in determining that Plaintiff’s “reports
of symptoms or lack thereof strongly suggests that her conditions did not impact
her to the extent alleged.”88 However, the December 2019 record cited by the ALJ
shows that not only did Plaintiff report that gabapentin made her feel lightheaded,
83 A.R. 977.
84 A.R. 325, 449.
85 E.g., A.R. 263, 281, 286, 299, 334, 385, 394, 400–01, 404, 408, 411, 432, 1221, 1265, 1278,
1309, 1339, 1345.
86 A.R. 1278, 1265, 1309, 1315.
87 A.R. 1302.
88 A.R. 706.
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loopy, and have memory loss, she also reported a pain level of 6/10 with
medication, an average level of pain of 7/10, and throbbing and burning pain that
lasted all day long. In that same record, Plaintiff also reported that Topamax and
Toradol caused moderate to severe nausea.89 In sum, there is not substantial
evidence in the record of this case to support the ALJ’s conclusion that Plaintiff’s
testimony regarding her pain and migraines was inconsistent with her reports in
treatment records.
The ALJ also discounted Plaintiff’s pain and symptom testimony based on
her reports of daily activities.90 Daily activities inconsistent with a claimant’s self-
described level of pain is a valid reason for an adverse credibility finding if
supported by substantial evidence.91 However, a claimant “does not need to be
utterly incapacitated in order to be disabled.”92 Rather, a claimant’s daily activities
must show that the claimant is “able to spend a substantial part of [her] day
engaged in pursuits involving the performance of physical functions that are
transferable to a work setting.”93 In her function report from August 2016, Plaintiff
reported that her hip and back pain made it hard for her to sleep in a comfortable
89 A.R. 1390–93.
90 A.R. 706. See also Revels, 874 F.3d at 667–68.
91 Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998).
92 Revels v. Berryhill, 874 F.3d 648, 667 (9th Cir. 2017) (quoting Vertigan v. Halter, F.3d 1044,
1050 (9th Cir. 2001)).
93 Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989).
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position. She reported that she could prepare only frozen meals, sandwiches, and
instant food; vacuumed rarely; and did not go outside often because of hip and leg
pain. She reported she could only walk two blocks before resting for 15 to 20
minutes; did not drive due to her pain medications; shopped by computer; and
watched television.94 Plaintiff testified at her February 2020 hearing that she
watched her grandson in the afternoons and took care of her autistic son;
sometimes watched TV, read books, or read the news online; and tried to do
chores. She testified she also spent time during her day managing pain with heat
wraps and lying down.95 Although the ALJ noted that Plaintiff spent time handling
her autistic son’s mental health issues, he did not acknowledge that Plaintiff’s
testimony indicated the issues with her son had “come up of late.”96 The ALJ did
not explain how Plaintiff’s ability to prepare frozen or instant meals and ability to
perform some household chores enabled her to work full time as a quality control
mortgage loan officer.97 Moreover, because the ALJ did not consider Plaintiff’s
chronic pain syndrome diagnosis, he did not consider the combined psychological
and physical effects of chronic pain syndrome on Plaintiff’s daily activities.98 The
94 A.R. 194–201.
95 A.R. 732–33.
96 A.R. 732.
97 A.R. 706; see Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007).
98 See Lester v. Chater, 81 F.3d 821, 829 (9th Cir. 1995) (recognizing chronic pain syndrome has
“both a physical and psychological component” and ALJ is required to “consider all available
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ALJ’s conclusion that Plaintiff’s daily activities undermined her symptom testimony
is not supported by substantial evidence.
The ALJ found a “significant disparity” in the record regarding Plaintiff’s work
history. Plaintiff sought disability benefits claiming an inability to work due to her
medical condition. However, treatment records indicated she told health care
providers that she was unemployed due to her father selling the family business.99
On March 17, 2015, Plaintiff reported to her medical providers that she was
“currently unemployed due to her father’s company being bought out.”100 In a
treatment record from September 15, 2014, Plaintiff reported that she was “working
for her father but he recently decided to retire and sell the business ‘then he
decided to take a 5 year contract so I will still have a job for the next 5 years.’”101
In the Ninth Circuit, an ALJ may discount testimony regarding a claimant’s
subjective pain complaints based in part on statements by the claimant to doctors
that she stopped working for reasons other than her impairments.102
However, as explained in the Court’s first order in this case, “[Plaintiff’s
father] stated that as [Plaintiff]’s pain worsened over time, her medications ‘made
evidence in assessing complaints of pain”).
99 A.R. 706.
100 A.R. 232.
101 A.R. 230.
102 Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001).
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it more difficult for her to concentrate to the point she was unable to perform her
duties.’ He also indicated that due to pain, [Plaintiff] was unable to sit at her work-
station ‘for an extended period of time without the use of medication.’ [Plaintiff’s
father] reported that in 2010, he allowed Plaintiff to work part-time from home, but
within a year, ‘she stopped coming to work completely and I relieved her of all her
work assignments.’ He reported continuing to pay her ‘even though she couldn’t
perform the simplest of tasks.’ [Plaintiff’s father] stated that in 2014, he ‘entered
into negotiations to sell the company effective at the end of the year and terminated
[Plaintiff] in August of that year as the new owners wouldn’t approve an
arrangement where I paid my daughter to do nothing.’”103
Although the ALJ gave Plaintiff’s father’s report “little weight,” he did not
dispute the accuracy of her father’s report of Plaintiff’s work history. Instead, the
ALJ discounted the report because Plaintiff’s symptoms “indicated waning severity
and improved functioning with treatment, namely medication management” and
because Plaintiff had only “sparse” medication side effects.104 As set forth above,
the record does not support the ALJ’s conclusion that Plaintiff’s symptoms were
managed by medication with only sparse side effects. The ALJ’s conclusion that
Plaintiff stopped working for reasons other than her impairments is not supported
103 A.R. 790–91.
104 A.R. 708.
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by substantial evidence in the record and is not a specific, clear, or convincing
reason to discount Plaintiff’s symptom testimony in this case.
Based on the foregoing, the ALJ did not provide specific, clear, or convincing
reasons, supported by substantial evidence, for finding Plaintiff’s allegations
regarding the severity of her symptoms not wholly credible.105
C. Dr. Maya’s Medical Opinion
Dr. Maya testified as a medical expert at Plaintiff’s first hearing before the
ALJ on August 14, 2019. She testified then that Plaintiff would miss on average
up to two days per month due to back pain and migraines.106 In the Court’s first
order, the Court rejected the ALJ’s reasons for discounting Dr. Maya’s opinion that
Plaintiff would miss work each month due to migraines and pain from a
combination of physical impairments. The Court held that the ALJ’s determination
that Plaintiff’s normal strength on exam was not consistent with missing work due
to low back pain and migraines. Additionally, the Court held that the longitudinal
record examined by Dr. Maya contained treatment notes and other objective
evidence of low back pain, hip pain, and migraines that would not necessarily be
outweighed by evidence of “normal strength.” The Court also held that Plaintiff’s
105 Although the Commissioner asserts that this Court “identified no error the ALJ’s prior
assessment of Plaintiff’s symptom allegations,” the Court did not reach this issue as it reversed
and remanded the case back to the ALJ on two other grounds. Docket 26 at 3, n. 2. A.R. 800–
01.
106 A.R. 39–42.
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reported improvement of her symptoms on medication was insufficient to
undermine Dr. Maya’s expert opinion that migraines would cause Plaintiff to miss
work at least once per month.107
In the second decision, the ALJ again gave this portion of Dr. Maya’s opinion
no weight, reasoning the opinion was “speculative at best.” The ALJ reasoned that
the longitudinal record showed medication controlled both Plaintiff’s pain and
migraines.108 The ALJ also cited Dr. LeBeau’s testimony that Plaintiff’s migraines
were not severe enough to bring her to the emergency room and Dr. LeBeau’s
opinion that migraines in general are treatable.109
The opinions of non-treating or non-examining physicians may serve as
substantial evidence when the opinions are consistent with independent clinical
findings or other evidence in the record.110 “The weight afforded a non-examining
physician’s testimony depends on the degree to which [s]he provides supporting
explanations for [her] opinions.”111 Greater weight may also be given to the opinion
of a non-examining expert who testifies at a hearing because she or he is subject
107 A.R. 797–99. The Court acknowledges that this sentence of the Court’s prior decision does
not precisely track Dr. Maya’s testimony.
108 A.R. 707.
109 A.R. 707, 724–25.
110 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).
111 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (internal quotations and citations
omitted).
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to cross examination.112
The ALJ rejected Dr. Maya’s medical opinion regarding the frequency of
Plaintiff’s migraines and pain interfering with work as “speculative at best,” but the
ALJ did not explain how that opinion is speculative, particularly as the ALJ gave
“great weight” to the all the rest of Dr. Maya’s opinions that assessed the severity
of her impairments. For this reason, the ALJ’s conclusory statement does not
justify the rejection of Dr. Maya’s opinion that Plaintiff would miss up to two days
of work per month due to her migraines and pain.113
The ALJ pointed to a record from June 2017114 in which Plaintiff reported
that she had fewer headaches and less intense headaches after starting on Imitrex
and Topamax. Although the record did not specify how many headaches Plaintiff
experienced, it shows Plaintiff’s Topomax dose had been increased. Plaintiff also
reported a pain level of 6/10 with medication on that date.115 The ALJ also cited
treatment visits at which Plaintiff reported using less than nine tablets of Imitrex
per month and reported increased mobility and function.116 However, as shown
112 Andrews v. Shalala, 53 F.3d 1035, 1042 (citing Torres v. Secretary of H.H.S., 870 F.2d 742,
744 (1st Cir. 1989)).
113 Regennitter v. Comm’r of the Soc. Sec. Admin., 166 F.3d 1294, 1299 (9th Cir. 1999)
(“[C]onclusory reasons will not justify an ALJ’s rejection of a medical opinion.”).
114 The Court’s review of the record shows a date of July 2017. A.R. 387.
115 A.R. 386–87, 707.
116 A.R. 707.
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above, the record as a whole does not support the ALJ’s conclusion that Plaintiff’s
migraines and other pain were adequately controlled by medication. Specifically,
Plaintiff repeatedly reported migraines occurring between two and six times a
month in treatment notes.117 In a record from December 2018, Plaintiff reported
between five to seven migraines per month and that her insurance company only
covered nine tablets per month.118 Further, according to the agency’s rules,
“increasing medications, trials of a variety of treatment modalities in an attempt to
find one that works or that does not have side effects, referrals to specialists . . .
may be a strong indication that the symptoms are a source of distress to the
individual and generally lend support to an individual’s allegations of intense and
persistent symptoms.”119 Here, Plaintiff’s providers changed or increased the dose
of her pain and migraine medications throughout the relevant period.120 Moreover,
Plaintiff testified that if she did not take her medication in time, her migraines could
last up to three days and she would need to lay in the dark.121 Therefore, Dr.
Maya’s opinion that Plaintiff would miss work up to two days per month for
117 E.g., A.R. 1265, 1278, 1309, 1315, 1413, 1434, 1457.
118 A.R. 1451.
119 SSR 96-7p, available at 1996 WL 374186, at *7. Social Security Rulings (SSRs) “do not carry
the force of law but they are binding on ALJs nonetheless.” Bray v. Comm’r Soc. Sec. Admin.,
554 F.3d 1219, 1224 (9th Cir. 2009).
120 E.g., A.R. 254, 283–84, 299, 301, 348, 351, 394, 401, 404, 411, 414, 417, 1309, 1393, 1435.
121 A.R. 728–30.
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migraines and back pain is consistent with Plaintiff’s testimony and with her reports
to providers.
Dr. LeBeau testified that there were no treatment records showing Plaintiff
went to the emergency room for migraines. He made statements indicating that
migraines are generally treatable “for a crowd of people.” Based on Plaintiff’s
record, Dr. LeBeau opined that Plaintiff may have migraines “once or twice a
month, something like that.”122 None of these opinions undermine Dr. Maya’s
conclusion that Plaintiff would miss up to two days of work per month for migraines
and other pain.123
For the reasons provided above, substantial evidence does not support the
ALJ’s rejection of Dr. Maya’s opinion that Plaintiff would miss work up to two days
of work each month due to migraines and other pain.
D. Lay Testimony
Plaintiff asserts that the ALJ failed to provide germane reasons for
discounting Plaintiff’s husband’s report. She argues that it was legal error for the
ALJ to discount her husband’s statement that Plaintiff could not sit or stand for long
periods of time on the basis that it was not supported by objective evidence. She
also asserts that the ALJ’s reasons for rejecting her father’s statements were not
122 A.R. 724–25.
123 Hay v. Saul, 2020 WL 2745715, at *8 (E.D. Cal. May 27, 2020) (“[T]he mere fact that plaintiff
did not seek treatment at an emergency room does not undermine his allegations.”).
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germane.124
“Lay testimony as to a claimant’s symptoms is competent evidence that an
ALJ must take into account, unless he or she expressly determines to disregard
such testimony and gives reasons germane to each witness for doing so.”125 In
the Ninth Circuit, a lack of support from the overall medical evidence is not a proper
basis for disregarding a lay witness’s observations.126 However, inconsistency with
medical evidence is a germane reason for discrediting the testimony of a lay
witness.127
Here, the ALJ noted that Plaintiff’s husband’s reports may have reflected his
personal observations to some extent, but the ALJ concluded that “the record as a
whole, including physical exams consistently showing normal strength, as well as,
the claimant’s own admissions of waning severity with medication management,
does not support the degree of severity implicated by this lay report.” The ALJ also
gave Plaintiff’s father’s report “little weight,” reasoning that Plaintiff’s pain and
migraines were managed with medication, her physical exams showed no
significant neurological deficit, and any medication side effects were “sparse.”128
124 Docket 25 at 22.
125 Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) (internal citations omitted).
126 Diedrich v. Berryhill, 874 F.3d 634, 640 (9th Cir. 2017).
127 Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (citing Lewis, 236 F.3d at 511).
128 A.R. 708.
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However, the longitudinal record contains treatment notes and other objective
evidence of low back pain, hip pain, and migraines that would not necessarily be
outweighed by evidence of “normal strength.”129 And, for the reasons provided
above regarding Plaintiff’s symptom testimony, Dr. Maya’s opinion on missing
work, and the ALJ’s failure to account for chronic pain syndrome, discounting the
lay testimony in this case because Plaintiff’s pain and other symptoms were
reportedly controlled by routine medication management with few side effects is
not supported by substantial evidence in the record and hence is not a germane
reason.
E. The ALJ’s Formulation of the RFC
Plaintiff also contends that the ALJ failed to consider Plaintiff’s hip
impairments and chronic pain syndrome in combination with her other impairments
to formulate the RFC.130 A court should affirm an ALJ’s determination of a
claimant’s RFC “if the ALJ applied the proper legal standard and [her] decision is
129 E.g., A.R. 239–41, 243–46, 247–49, 255–61, 263–65, 285–87, 290–302, 401–04, 410–11,
413–14, 1221, 1226, 1232, 1241, 1247, 1253, 1259, 1265, 1278, 1284, 1291, 1302, 1309, 1315,
1339, 1345, 1368, 1392, 1396, 1404, 1407–08, 1416, 1422, 1429, 1443, 1451, 1488, 1505, 1533,
1539.
130 Docket 25 at 5–6.
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supported by substantial evidence.”131 It is “proper for an ALJ to limit a hypothetical
to those impairments that are supported by substantial evidence in the record.”132
In the decision after remand, the ALJ determined that Plaintiff’s hip bursitis
and SI joint dysfunction were non-severe through the date last insured. He
reasoned that Plaintiff’s reports of pain control with medication and Dr. LeBeau’s
testimony “regarding the nature of these conditions” showed Plaintiff’s hip
impairment was non-severe during the relevant time period.133 The RFC included
walking/standing and sitting limitations of four hours each and occasional climbing,
stooping, and crouching.134 However, this RFC does not take Plaintiff’s chronic
pain syndrome into account in combination with Plaintiff’s migraines and other
pain. Moreover, as shown above, the record does not support the ALJ’s conclusion
that Plaintiff’s pain was controlled with medication nor does it support discounting
Plaintiff’s pain testimony.
Although the ALJ relied on Dr. LeBeau’s opinion that SI joint pain and hip
bursitis are typically resolved with treatment such as physical therapy and steroid
injections, Dr. LeBeau cited to none of Plaintiff’s records and assessed no specific
131 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (citing Morgan v. Comm’r of Soc. Sec.
Admin., 169 F.3d 595, 599 (9th Cir. 1999)).
132 Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001).
133 A.R. 701.
134 A.R. 703.
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work-related functional limitations.135 Therefore, his testimony was unsupported.
As set forth above, Dr. LeBeau’s testimony was not consistent with the treatment
record. It does not serve as substantial evidence in support of the ALJ’s RFC
assessment.
In sum, the ALJ did not address all of the functional limitations resulting from
the combination of Plaintiff’s impairments, including Plaintiff’s hip impairments and
chronic pain syndrome. Therefore, the RFC is deficient.
F. Scope of Remand
When prejudicial error has occurred, “the proper course, except in rare
circumstances, is to remand to the agency for additional investigation or
explanation.”136 A court follows a three-step analysis to determine whether a case
raises the “rare circumstances” that allow a court to exercise its discretion to
remand for an award of benefits. “First, [a court] must conclude that ‘the ALJ has
failed to provide legally sufficient reasons for rejecting evidence, whether claimant
testimony or medical opinion.’”137 “Second, [a court] must conclude that ‘the record
has been fully developed and further administrative proceedings would serve no
useful purpose.’”138 “Where there is conflicting evidence, and not all essential
135 A.R. 707, 720–24.
136 Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (quoting Treichler, 775 F.3d at 1099).
137 Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (quoting Garrison, 759 F.3d at 1020).
138 Id. (quoting Garrison, 759 F.3d at 1020).
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factual issues have been resolved, a remand for an award of benefits is
inappropriate.”139 “Third, [a court] must conclude that ‘if the improperly discredited
evidence were credited as true, the ALJ would be required to find the claimant
disabled on remand.’”140 But, “even if all three requirements are met, [a court]
retain[s] ‘flexibility’ in determining the appropriate remedy” and “may remand on an
open record for further proceedings ‘when the record as a whole creates serious
doubt as to whether the claimant is, in fact, disabled within the meaning of the
Social Security Act.’”141
Here, the ALJ failed to provide legally sufficient reasons for rejecting
Plaintiff’s testimony regarding her pain and Dr. Maya’s opinion that Plaintiff would
miss up to two days per month for back pain and migraines. The medical record
is fully developed and does not support the ALJ’s conclusion that Plaintiff’s pain
and migraines were controlled with minimal adverse side effects. The record also
does not support the ALJ’s conclusion that Plaintiff required only routine follow-up
for medication management. Dr. Maya opined that Plaintiff would miss work up to
two days per month due to her impairment. Credited as true, Dr. Maya’s opinion
that Plaintiff would miss work up to two days per month; that opinion is consistent
with Plaintiff’s testimony and the treatment record. The vocational expert testified
139 Treichler v. Comm’r of Soc. Sec., 775 F.3d 1090, 1101 (9th Cir. 2014).
140 Brown-Hunter, 806 F.3d at 495 (quoting Garrison, 759 F.3d at 1021).
141 Id. (quoting Garrison, 759 F.3d at 1021).
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at Plaintiff’s previous hearing that if an individual had to call out sick from work at
least two days a month unscheduled and on an ongoing basis, that individual
would not be able to sustain competitive employment.142 If Dr. Maya’s opinion is
credited as true, then Plaintiff is disabled. Finally, the Court’s review of the record
as a whole does not create a serious doubt whether Plaintiff is disabled.143 Based
on the foregoing, a remand for the calculation and award of benefits is warranted
for a disability onset date of September 1, 2014, through December 31, 2019.
V. ORDER
The Court, having carefully reviewed the administrative record, finds that the
ALJ’s determinations are not free from legal error and are not supported by
substantial evidence. Accordingly, IT IS ORDERED that Plaintiff’s request for relief
at Docket 25 is GRANTED, and the Commissioner’s final decision is VACATED
and REMANDED for the calculation and award of benefits based on a finding of
disability commencing on September 1, 2014, through December 31, 2019.
The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 24th day of September, at Anchorage, Alaska.
/s/ Sharon L. Gleason____________
UNITED STATES DISTRICT JUDGE
142 A.R. 60, 694.
143 Revels v. Berryhill, 874 F.3d 648, 669 (9th Cir. 2017).
Case 3:20-cv-00109-SLG Document 29 Filed 09/24/21 Page 34 of 34