Barklow v. Kijakazi

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
WILLIAM B.,1
Plaintiff,
vs.
KILOLO KIJAKAZI,2
Commissioner of Social Security,
Defendant.
Case No. 3:21-CV-98-JMK-KFR
PROPOSED FINDING OF FACT AND RECOMMENDATION TO
REMAND FOR FURTHER PROCEEDINGS
I. 	FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, 	William 	B., 	filed 	an 	application 	with 	the 	Social 	Security
Administration (“SSA”) for Title II Disability Insurance Benefits on January
8, 2019, alleging disability beginning March 7, 2018, due to an opening in his
1 Plaintiff’s name is partially redacted in compliance with Fed. R. Civ. P. 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),
https://www.uscourts.gov/sites/default/files/18-cv-l-suggestion_cacm_0.pdf.
2 	Kilolo 	Kijakazi 	is 	now 	the 	Acting 	Commissioner 	of 	Social 	Security 	and 	is
automatically substituted as a party pursuant to Fed. R. Civ. P. 25(d). 	See also
Section 	205(g) 	of 	the 	Social 	Security 	Act, 	42 	U.S.C. 	405(g) 	(action 	survives
regardless of any change in the person occupying the office of Commissioner of
Social Security).
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internal stomach, colostomy bag, hernia, and pancreatitis. Plaintiff was born
on August 23, 1972, and was 45 years old on the alleged disability onset date.3
Plaintiff worked in construction since high school, specifically as a concreter
and pipeline laborer.4 Plaintiff met the insured status requirements of the
Social Security Act through December 31, 2021.5
Plaintiff’s application was initially denied on July 11, 2019,6 and he
requested a hearing before an Administrative Law Judge (“ALJ”). 	On August
19, 2020, Plaintiff appeared and testified pro se in Anchorage, Alaska, before
ALJ LaCara. 	On September 21, 2020, the ALJ issued an unfavorable ruling
against Plaintiff. On February 26, 2021, the Appeals Council denied Plaintiff’s
request to review the ALJ’s decision,7 making the Commissioner’s decision
final.
Plaintiff exhausted his administrative remedies and, represented by
counsel, filed a complaint on April 19, 2021, against Defendant Kijakazi,
seeking relief from this Court.8 	After seeking an extension, Defendant filed
3 Tr. 17; 20 C.F.R. 404.1563.
4 Tr. 17.
5 In order to qualify for disability benefits under Title II, a claimant must have
“insured status” and show his disability began by his date last insured. 42 U.S.C. §§
423(a)(1), (c)(2), (d)(1)(A).
6 Tr. 19.
7 Tr. 1-4.
8 Dkt. 1.
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her answer to the complaint on August 10, 2021, seeking affirmation of the
ALJ’s decision.9
After 	seeking 	an 	extension, 	Plaintiff 	filed 	his 	opening 	brief 	on
September 21, 2021, asking that the Commissioner’s decision be vacated and
that 	this 	matter 	be 	remanded 	for 	further 	administrative 	proceedings.10
Plaintiff 	argues that 	the ALJ 	committed 	legal 	errors in 	concluding that
Plaintiff is not disabled within the meaning of the Social Security Act.11
Defendant filed a response brief on October 21, 2021, seeking affirmation of
the ALJ’s decision.12 	Plaintiff filed a reply on November 4, 2021.13 Oral
argument was not requested and is not necessary to the Court’s decision.
The District Court has jurisdiction to hear an appeal from a final
decision of the Commissioner of Social Security.14 	For the reasons set forth
below, 	this 	Court 	recommends 	that 	Plaintiff’s 	Motion 	for 	Remand 	at
Docket 18 be GRANTED, the Commissioner’s final decision be VACATED, and
the case be REMANDED for further proceedings.
9 Dkt. 14 at 2.
10 Dkt. 18 at 23. Also phrased in the Docket as Motion to Reverse the Commissioner's
Decision and Remand to the Agency.
11 Dkt. 18.
12 Dkt. 19 at 13.
13 Dkt. 20.
14 42 U.S.C. § 405(g).
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II. 	STANDARD OF REVIEW
A decision by the Commissioner to deny disability benefits will not be
overturned unless it either is not supported by substantial evidence or is
based upon legal error.15 	“Substantial evidence” has been defined by the
Supreme Court as “such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.”16 Such evidence must be “more than a
mere scintilla,” but may be “less than a preponderance.”17
In reviewing the SSA’s determination, the Court considers the evidence
in its entirety, weighing both the evidence that supports and that which
detracts from the ALJ’s conclusion.18 	If the evidence is susceptible to more
than one rational interpretation, the ALJ’s conclusion must be upheld.19 	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
[she] did not rely.”20 	An ALJ’s decision will not be reversed if it is based on
15 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)).
16 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)).
17 Perales, 402 U.S. at 401; Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir.
1975) (per curiam).
18 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
19 Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citing Rhinehart v. Finch,
438 F.2d 920, 921 (9th Cir. 1971)).
20 Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).
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“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.”21
III. 	DETERMINING DISABILITY
A. Definition of Disability
The Social Security Act (“the Act”) provides for the payment of disability
insurance to individuals who have contributed to the Social Security program
and who suffer from a disability.22 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.”23 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
21 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation
marks and citations omitted).
22 42 U.S.C. § 423(a).
23 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
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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.24
B. Five-Step Analysis
The Commissioner 	established 	a five-step process for 	determining
disability within the meaning of the Act.25 	A claimant bears the burden of
proof at steps one through four in order to make a prima facie showing of
disability.26 If a claimant establishes a prima facie case, the burden of proof
then shifts to the agency at step five to demonstrate that the claimant can
perform a significant number of other jobs in the national economy.27 	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.”28
The steps, and the ALJ’s findings in this case, are as follows:
24 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
25 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
26 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).
27 Treichler, 775 F.3d at 1096 n.1; Tackett, 180 F.3d at 1098 (emphasis in original).
28 Tackett, 180 F.3d at 1101.
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Step 1. 	Determine whether the claimant is involved in “substantial
gainful activity.”29
• 	The ALJ concluded that Claimant (Plaintiff) had not engaged in
substantial gainful activity since his alleged onset date.30
Step 2. 	Determine whether 	the claimant 	has 	a 	medically 	severe
impairment 	or 	combination 	of 	impairments. 	A 	severe 	impairment
significantly limits a claimant’s ability to do basic work activities and does
not consider age, education, or work experience. The severe impairment or
combination 	of 	impairments 	must 	satisfy 	the 	12-month 	duration
requirement.
• 	The 	ALJ 	determined 	that 	Claimant 	suffered 	from 	severe
impairments, 	including 	ventral 	hernia; 	status 	post 	multiple
abdominal surgeries secondary to necrotizing pancreatitis; and
obesity.31
Step 	3. 	Determine 	whether 	the 	impairment 	or 	combination 	of
impairments meets or equals the severity of any of the listed impairments
found in 20 C.F.R. pt. 404, subpt. P, app.1, precluding substantial gainful
29 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
30 Tr. 13.
31 Tr. 13.
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activity. If the impairment is the equivalent of any of the listed impairments,
and meet the duration requirement, the claimant is conclusively presumed to
be disabled.32 If not, the evaluation goes on to the fourth step.
• 	The ALJ determined that Claimant does not have an impairment or
combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 C.F.R. pt. 404,
subpt. P, app.1.33
Before proceeding to Step 4, a claimant’s residual functional capacity
(“RFC”) is assessed. Once determined, the RFC is used at both Step 4 and Step
5. 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
impairments that are not severe.34
• 	The ALJ concluded that Claimant had the RFC to perform light work
as defined in 20 C.F.R. § 404.1567(b) except he is limited to
frequent 	climbing 	[of] 	ramps 	or 	stairs, 	balancing, 	stooping,
kneeling, crouching and crawling. He cannot climb ladders, ropes
or scaffolds, and he must avoid all unprotected heights.35
32 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
33 Tr. 13.
34 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
35 Tr. 14.
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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 his past relevant work, the
claimant is deemed not to be disabled.36
• 	The ALJ found that Claimant was unable to perform any past
relevant work.37
Step 5. Determine whether the claimant is able to perform other work
in the national economy in view of his age, education, and work experience,
and in light of the RFC. If so, the claimant is not disabled. If not, the claimant
is considered disabled.38
• 	The ALJ considered the claimant’s age, education, work experience,
and RFC to determine that there are jobs that exist in significant
numbers in the national economy that the claimant can perform,
including 	laundry 	sorter, 	marker 	II, 	and 	assembler, 	small
products.39 In reaching her conclusions, the ALJ relied extensively
on the testimony of the vocational expert.
36 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
37 Tr. 17.
38 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
39 Tr. 18.
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Following the five-step analysis, the ALJ concluded that claimant had
not been under a disability from March 7, 2018, the alleged onset date,
through the date of her decision, September 21, 2020.40
IV. 	DISCUSSION
A. Issues on Appeal
In his opening brief, Plaintiff argues that the ALJ’s decision was not
supported by substantial evidence and that she committed legal errors that
led to denial of Plaintiff’s disability status. Specifically, he contends that the
ALJ erred by not developing the record; failing to properly consider the nature
and 	intensity 	of 	Plaintiff’s 	limitations; 	and 	failing 	to 	offer 	clear 	and
convincing 	reasons 	for 	rejecting 	Plaintiff’s 	subjective 	complaints.41 	In
response, the Commissioner argues that this Court should affirm the ALJ’s
decision because she applied the correct legal standards and supported her
decision with substantial evidence.42
i. 	The ALJ Failed to Fully and Fairly Developed the Record.
While Social Security claimants bear the burden of establishing their
disabilities,43 ALJs have a “special duty to fully and fairly develop the record
40 Tr. 18.
41 Dkt. 18 at 1.
42 Dkt. 19 at 13.
43 20 C.F.R. §§ 404.1512(a)(1) & 416.912(a)(1).
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and to assure that the claimant’s interests are considered.”44 	The Ninth
Circuit has found that the ALJ’s duty to develop the record increases when the
claimant is unrepresented, as Plaintiff was in this case, and thus unable to
protect his own interests.45 The existence of ambiguous evidence or a finding
that the record is inadequate to allow for proper evaluation triggers an ALJ’s
duty 	to 	“develop 	the 	record 	further”46 	and 	“conduct 	an 	appropriate
inquiry.”47 	An ALJ “may discharge this duty in several ways, including:
subpoenaing 	the 	claimant’s 	physicians, 	submitting 	questions 	to 	the
claimant’s physicians, continuing the hearing, or keeping the record open
after the hearing to allow supplementation of the record.”48
The ALJ did not fully develop the record in this case. 	In addition to
considering the evidence submitted by Plaintiff, the ALJ took testimony from
a non-examining physician, Dr. Gaeta, and also considered a written opinion
from non-examining physician Dr. Caspari. However, given the nature of the
opinions offered by these medical experts, and the contradictory evidence
44 Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003) (quoting Brown v. Heckler,
713 F.2d 441, 443 (9th Cir. 1983)).
45 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001).
46 Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001).
47 Tonapetyan, 242 F.3d at 1150 (quoting Smolen v. Chater, 80 F.3d 1273, 1288 (9th
Cir. 1996).
48 Id.
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presented by Plaintiff that undermines those opinions, it cannot be said that
the ALJ’s inquiry was sufficient under the law.49
Dr. Caspari stated in his written opinion that Plaintiff’s medical records
showed “mostly normal physical exams” with the presence of an ostomy
bag.50 	Dr. Caspari advised that Plaintiff could occasionally lift and carry 50
pounds, frequently lift and carry 25 pounds, and stand or walk about six hours
in an eight-hour work day.51 	However, as the ALJ noted in her opinion, Dr.
Caspari was unable to review the entire record,52 thereby making the opinion
of limited value.
The ALJ took testimony from Dr. Gaeta on August 19, 2020. 	Dr. Gaeta
testified 	that 	Plaintiff 	suffered 	from 	severe 	pancreatitis 	in 	2018 	with
prolonged 	hospitalization 	for 	renal 	failure, 	dialysis, 	and 	removal 	of 	a
significant amount of his bowel.53 	Dr. Gaeta concluded that because of
Plaintiff’s injuries, he was limited to lifting 20 pounds on occasion, as
49 Compare Struck v. Astrue, 247 Fed. Appx. 84 (9th Cir. 2007) (unreported) (holding
that additional inquiry was required where “both the ALJ and the medical expert
who testified at the ALJ's request concluded that inpatient treatment records from
two recent hospitalizations of Struck were important to assessing her claim.”)
50 Tr. 91-92.
51 Tr. 90.
52 Tr. 17.
53 Tr. 53.
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opposed to the 50 pounds proposed by Dr. Caspari,54 and could perform
medium work, standing and walking for six hours daily with no postural
limitations.55
The ALJ relied on Dr. Gaeta’s opinion over Dr. Caspari’s. 	In adopting
Dr. Gaeta’s opinion, the ALJ said it was persuasive because “he reviewed the
entire record,” and his opinion was “consistent with the overall evidence.”56
This 	conclusion 	is 	troubling 	for 	two 	reasons. 	First, 	Dr. 	Gaeta 	only
acknowledged 	reviewing 	Plaintiff’s 	medical 	evidence labeled 	1F 	through
18F,57 and 	does 	not 	appear 	to 	have been 	informed 	at 	all 	by 	Plaintiff’s
testimony 	or 	information 	from 	the 	ALJ 	regarding 	Plaintiff’s 	subjective
complaints, “current medications, or sources and types of treatments.”58
Second, 	Dr. 	Gaeta 	initially 	failed 	to 	identify 	Plaintiff’s 	hernia, 	a
significant medical issue that was one of the bases for Plaintiff’s original
claim. 	In his initial testimony, Dr. Gaeta stated that he reviewed the record
and found that Plaintiff suffered from severe pancreatitis in 2018 with
prolonged 	hospitalization 	for 	renal 	failure, 	dialysis, 	and 	removal 	of 	a
54 Tr. 57-58.
55 Tr. 54-55.
56 Tr. 15.
57 Tr. 52. See also Court Transcript Index.
58 See Hearings, Appeals, and Litigation Law Manual (“HALLEX”) I-2-6-70(b).
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significant amount of his bowel.59 Even after being asked by the ALJ about
Plaintiff’s hernia, Dr. Gaeta continued with his original opinion, telling the
ALJ that he didn’t see “anything documentation(sic) in the recent notes.”60 In
response to Plaintiff’s questions about the hernia, Dr. Gaeta reiterated he did
not see any description that the hernia was very large or affecting Plaintiff in
any way.61
Only after reviewing the documents during the hearing—and only after
being specifically questioned two different times about the issue—did Dr.
Gaeta identify that Plaintiff’s medical records did in fact contain evidence of
a “large ventral hernia,” which physicians planned to surgically repair. 62
Moreover, the evidence was such that it forced Dr. Gaeta to revise his medical
opinion to lower the weight Plaintiff could lift and the duration and nature of
work Plaintiff could perform. The two doctors’ failures to review the entirety
of the record in this case, and Dr. Gaeta’s hasty review of the entirety of the
record only during a break in the hearing required the ALJ to diligently
exercise their obligation to fully and fairly develop the record. 	It does not
appear that was not done in this case.
59 Tr. 53.
60 Tr. 57.
61 Id.
62 Tr. 2560, 2675.
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The concerns about Dr. Gaeta’s opinion, and the ALJ’s obligation to
mediate those concerns in light of their reliance on that opinion, are apparent
in the record. In addition to initially failing to identify Plaintiff’s hernia, Dr.
Gaeta 	also 	appeared 	to 	misstate 	the 	severity 	of 	Plaintiff’s 	original
hospitalization in this case, and the success of his treatment for those
conditions. 	Dr. Gaeta stated that Plaintiff “was hospitalized, I believe, for
several weeks [in March 2018],” but in the “latter part of 2019 he was doing
pretty well.”63 The medical record belies the fact that Plaintiff had improved
during this time frame.
Dr. Gaeta’s time frames are inconsistent with the medical record.
Plaintiff’s 11-week hospitalization from March 7, 2018, through July 26,
2018,64 is by any measure longer than the “several weeks” reported by Dr.
Gaeta. Such a distinction is not a matter of semantics and should have elicited
further inquiry from the ALJ as to the precise duration of Plaintiff’s illness.65
63 Tr. 53.
64 Id.
65 See Mayes, 276 F.3d at 456-57 (9th Cir. 2001) (noting that one of the conditions
triggering an ALJ’s duty to develop the record further is “when there is ambiguous
evidence.”)
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In addition, the ALJ did not question what Dr. Gaeta meant by the “latter
part of 2019.”66 	Dr. Gaeta’s assertion that Plaintiff was “doing pretty well”
during this time period is contradicted by Plaintiff’s medical history, which
documents multiple medical issues in mid to late 2019. For instance, on June
21, 2019, 	Plaintiff discovered a “knot” in his lower abdomen that treating
physicians in Valdez, Alaska ultimately determined required a higher level of
care, leading to Plaintiff’s transfer via Medevac for surgery.67 	This incident
was followed by six more doctor visits in June and July for related treatment,
during which doctors stated that Plaintiff’s cholecystostomy tube was no
longer functioning, and that he was at high risk for decompensation.68
Plaintiff required extensive additional treatments in August, October and
November 	in 	2019, 	stemming 	back 	to 	his 	initial 	hospitalization.69 	On
November 	12, 	2019, 	medical 	staff 	noted 	that 	Plaintiff 	would 	need 	his
gallbladder removed, and that he was scheduled to undergo “abdominal wall
66 If Dr. Gaeta meant to say the latter part of 2018, this assertion is also questionable
and should have elicited follow-up from the ALJ. 	Nonetheless, the ALJ failed to
clarify or elicit details from Dr. Gaeta about the lengthy hospitalization or time
thereafter.
67 Tr. 2469.
68 Tr. 2482.
69 Dkt. 18 at 9-10.
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reconstruction, 	ileostomy 	take 	down 	with 	ileorectal 	anastomosis 	and
cholecystectomy” in Seattle, Washington, the following year.70
Plaintiff’s testimony and reports to his treating doctors demonstrate
ongoing and consistent medical issues. 	Plaintiff complained of pain and
discomfort stemming from his original hospitalization in March 2018, as well
as subsequent complications, including pain at his drain site and discomfort
when drains and tubes would catch on objects during normal movements.71
The ALJ failed to resolve the material discrepancy between Dr. Gaeta’s
testimony 	that 	Plaintiff’s 	severe 	pancreatitis 	and 	gallbladder 	problems
“largely 	resolved 	by 	late 	2018”72 	and 	Plaintiff’s 	further 	surgeries 	and
hospitalizations in 2018, his June 2019 admittance to the hospital for a high
level of care, surgery, drainage and wound care, his ongoing treatments in
the Fall of 2019, and his planned surgery in 2020.
ii. 	The ALJ Failed to Properly Consider the Nature and
Intensity of Plaintiff’s Limitation and Failed to Offer
Clear and Convincing Reasons for Rejecting Plaintiff’s
Subjective Complaints.
The ALJ concluded that Claimant had the RFC to perform light work as
defined in 20 C.F.R. § 404.1567(b); except he is limited to frequent climbing
70 Tr. 2681.
71 Tr. 2675.
72 Tr. 53-57.
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of ramps or stairs, balancing, stooping, kneeling, crouching and crawling, and
he cannot climb ladders, ropes or scaffolds, and he must avoid all unprotected
heights. This opinion was based on primarily on the opinion of Dr. Gaeta and
did not credit Plaintiff’s subjective complaints of disability. 	This conclusion
was in error.
In 	assessing 	the 	credibility 	of 	a 	claimant's 	testimony 	regarding
subjective pain or the intensity of symptoms, the ALJ must first determine
whether there is “objective medical evidence of an underlying impairment
which could reasonably be expected to produce the pain or other symptoms
alleged,” but it cannot provide the only basis for rejecting a claimant’s
subjective symptom testimony.73 An ALJ may discount a claimant’s subjective
complaints when they are inconsistent with the medical records and an ALJ
is not required to believe every allegation of disabling pain, or else disability
benefits would be available for the asking, a result plainly contrary to the
Act.74 	However, 	the 	ALJ 	is 	also 	responsible for 	resolving 	conflicts 	in
medical testimony, 	and 	resolving 	ambiguity. 	Determining
whether inconsistencies are material (or are in fact inconsistencies at all)
73 Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“Although lack of medical
evidence cannot form the sole basis for discounting pain testimony, it is a factor
that the ALJ can consider in his credibility analysis.”).
74 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1999).
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and whether certain factors are relevant to discount the opinions falls within
this responsibility.75
If there is no evidence of malingering, “the ALJ can only reject the
claimant’s testimony about the severity of the symptoms if she gives ‘specific,
clear and convincing reasons’ for the rejection.”76 	Subjective symptom
evaluation “is not an examination of an individual's character,” and requires
the ALJ to consider all 	of the evidence in an individual's record 	when
evaluating the intensity and persistence of symptoms. The ALJ must examine
“the 	entire 	case 	record, 	including 	the 	objective 	medical 	evidence; 	an
individual's statements about the intensity, persistence, and limiting effects
of symptoms; statements and other information provided by medical sources
and other persons; and any other relevant evidence in the individual's case
record.”77 Furthermore, while a claimant need not “vegetate in a dark room”
in order to be eligible for benefits, 	the ALJ may discredit a claimant's
testimony when the claimant reports participation in everyday activities
75 Morgan v. Comm'r of Social Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999).
76 Smolen, 80 F.3d at 1281-82.
77 Social Security Ruling (“SSR”) 16-3p, available at 2016 WL 1119029. SSRs reflect
the official interpretation of the SSA. 	While SSRs do not carry the ‘force of law,’
they are binding on ALJs nonetheless. Bray v. Comm'r Soc. Sec. Admin., 554 F.3d
1219, 1224 (9th Cir. 2009).
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indicating capacities that are transferable to a work setting.78 	Even where
those activities suggest some difficulty functioning, they may be grounds for
discrediting the claimant's testimony to the extent that they contradict claims
of a totally debilitating impairment.79
The ALJ determined that Plaintiff’s impairments could reasonably be
expected to cause some of the alleged symptoms that Plaintiff described.80
The ALJ went on to find that Plaintiff’s statements concerning the intensity,
persistence, and limiting effects of these symptoms were inconsistent with
the medical evidence and other evidence in the record.81 	As detailed above,
the ALJ failed to fully develop the medical evidence record as it relates to Dr.
Gaeta’s testimony and opinion. 	Accordingly, it cannot be said that the ALJ’s
reliance on that opinion to discredit the Plaintiff’s subjective complaints was
proper.
Moreover, it is not apparent that the other bases relied upon by the ALJ
to discredit Plaintiff’s subjective complaints meet the “specific, clear, and
convincing standard.” 	Specifically, the ALJ cited discrepancies in Plaintiff’s
78 Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir.1999); Fair, 885
F.2d at 603.
79 Turner, 613 F.3d at 1225; Valentine, 574 F.3d at 693.
80 Tr. 15.
81 Tr. 15-16.
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testimony regarding wheelchair usage and ability to drive. 	However, as it
relates to these matters, it is not apparent that the ALJ sufficiently attempted
to clarify these inconsistencies by questioning Plaintiff, nor did the ALJ
explain how Plaintiff’s participation in limited everyday activities would
indicate capacities that are transferable to a work setting or how they may
contradict a totally debilitating impairment.82
The 	ALJ 	discounted 	Plaintiff’s 	testimony 	that 	he 	needed 	to 	use 	a
wheelchair “every day.”83 This conclusion was supported by medical records
from late 2018 that indicated that Plaintiff was “ambulatory” with a steady
gait.84 The ALJ similarly found Plaintiff’s testimony about his ability to drive
himself to be unreliable in light of Plaintiff’s statement to a doctor that he
would “drive himself” to his next appointment,85 and his testimony at the
August 2020 hearing that he drove to the store approximately once a week.86
Both 	of 	these 	conclusions 	were 	inconsistent 	with 	Plaintiff’s 	own
statements, and were also inconsistent with some of the medical evidence in
the record. 	Following his discharge from the hospital in June 2018, Plaintiff
82 Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014).
83 Dkt. 18 at 20.
84 E.g., Tr. 2459, 2757, 2771, 2775, 2777, 2779, 2783.
85 Tr. 2460.
86 Tr. 60.
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required a four-wheeled walker for functional tasks, and he was ordered a
padded wheelchair cushion for prolonged wheelchair use.87 	His wife also
received training to assist with transfers and ambulation.88 	And while
Plaintiff walked independently to some appointments, in August 2018 he
collapsed while trying to enter the clinic and was lifted into a wheelchair.89
In November 2019, Plaintiff needed a wheelchair following his surgery to
replace his gallbladder tube.90 Plaintiff’s ability to ambulate on occasion does
not conclusively indicate that he did not need his wheelchair for some of his
mobility on a daily basis.91
Likewise, Plaintiff’s statement that he drove to the store was followed
up with a statement that he and another person “go to the store” about once
per week.92 Plaintiff testified that he did not drive because he had a big truck
and could not stand.93 Given this evidence, Plaintiff’s use of the word “drive"
87 Tr. 678, 691.
88 Tr. 691.
89 Tr. 694.
90 Tr. 2723.
91 See Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (“The mere fact that a
plaintiff has carried on certain daily activities, such as grocery shopping, driving a
car, or limited walking for exercise, does not in any way detract from [his]
credibility 	as 	to 	[his] 	overall 	disability. 	One 	does 	not 	need 	to 	be 	‘utterly
incapacitated’ in order to be disabled.”) (internal citation omitted).
92 Tr. 65.
93 Tr. 240.
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may very well have referred to being a passenger in the vehicle as opposed to
its operator.
The ALJ failed to resolve these inconsistencies with sufficient evidence
to support her conclusion that Plaintiff’s complaints were not credible. 	The
ALJ relied heavily on Dr. Gaeta’s review of medical records and medical
opinion in undermining Plaintiff’s complaints, stating that there were “few,
if any, complaints or findings showing that the claimant had problems with
walking, standing, or other areas of function.”94 This reliance was misplaced
in light of the ALJ’s failure to fully develop the record as it relates to Dr.
Gaeta’s review of the medical records and the basis for his opinion. The ALJ’s
unreasonable reliance on Dr. Gaeta’s testimony did not provide a clear and
convincing 	basis 	to 	discounting 	Plaintiff’s 	allegations 	of 	debilitating
limitations.95
V. 	INSTRUCTIONS ON REMAND
The ALJ failed to develop the record 	and did not 	properly 	weigh
Plaintiff’s 	subjective 	complaints. 	The 	result 	was 	not 	harmless 	since 	it
resulted in Plaintiff’s non-disability status. 	As a result, the RFC may not
include all of Plaintiff’s limitations or provide a proper disability diagnosis.
94 Tr. 16.
95 Tr. 15.
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Plaintiff asks the Court to vacate the final agency decision and remand
to the Commissioner for a de novo hearing and a new decision. The “ordinary
remand rule” applies to disability cases. 	Under this rule, if “the reviewing
court simply cannot evaluate the challenged agency action on the basis of the
record before it, the proper course … is to remand to the agency for additional
investigation or explanation.”96 	For the reasons stated above, this Court
recommends this case be 	REMANDED 	to the Commissioner for further
administrative proceedings consistent with this order. On remand, this Court
recommends that the ALJ clarify Dr. Gaeta’s testimony or otherwise fully and
fairly develop the record regarding Plaintiff’s subjective symptoms and other
impairments, 	and 	allow 	for 	additional 	evidence 	to 	be 	submitted 	as
appropriate. This Court recommends that the ALJ conduct a de novo hearing
and issue a new decision with appropriate findings at each step of the
sequential evaluation.
VI. 	CONCLUSION
The Court, having carefully reviewed the administrative record, finds
that 	the ALJ’s determinations are not 	free from 	legal 	error or entirely
96 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014)
(quoting Fla.
Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)).
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supported by substantial evidence in the record. The ALJ’s legal errors were
not harmless and thus require remand. 	Based on the foregoing, this Court
recommends that Claimant’s motion at Docket 18 be GRANTED and this
matter be REMANDED for further proceedings.
NOTICE OF THE RIGHT TO OBJECT
Under 28 U.S.C. § 636(b)(1), a district court may designate a magistrate
judge 	to 	hear 	and 	determine 	matters 	pending 	before 	the 	Court. 	For
dispositive matters, a magistrate judge reports findings of fact and provides
recommendations to the presiding district court judge.97 	A district court
judge may accept, reject, or modify, in whole or in part, the magistrate judge’s
order.98
A party may file written objections to the magistrate judge’s order
within 14 fourteen days.99 	Objections and responses are limited to five (5)
pages 	in 	length 	and 	should 	not 	merely 	reargue 	positions 	previously
presented. 	Rather, objections and responses should specifically identify the
findings or recommendations objected to, the basis of the objection, and any
legal authority in support. Reports and recommendations are not appealable
97 28 U.S.C. § 636(b)(1)(B).
98 Id.
99 Id.
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orders. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be
filed until entry of the district court’s judgment.100
DATED this 18th day of July, 2022, at Anchorage, Alaska
/s/ Kyle F. Reardon
KYLE F. REARDON
United States Magistrate Judge
District of Alaska
100 See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
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