Honaker v. Kijakazi

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
TINA R.H., 1
Plaintiff,
v.
KILOLO KIJAKAZI,
Acting Commissioner of Social Security,
Defendant.
Case No. 3:22-cv-00238-SLG
DECISION AND ORDER
On or about April 16, 2018, 2 Tina R.H. (“Plaintiff”) filed applications for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and
XVI, respectively, of the Social Security Act (“the Act”),3 alleging disability beginning July
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 https://www.uscourts.gov/sites/default/files/18-cv-l-suggestion_cacm_0.pdf.
2 The application summaries list May 8, 2018 as Plaintiff’s application date. Although the record
of Plaintiff’s oral inquiry and/or intent to file does not appear in this Court’s file, the ALJs and
Plaintiff cite to a protected filing date of April 16, 2018. See Docket 18 at 1; Administrative Record
(“A.R.”) 16, 1074. Pursuant to 20 C.F.R. §§ 416.340-350, a protective filing date establishes the
earliest possible application date based on a claimant’s oral inquiry about eligibility or a verbal or
written statement of intent to file for benefits. Therefore, April 16, 2018, is considered Plaintiff’s
application filing date for both SSI and DIB.
3 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 Titles II and XVI 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.
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27, 2015. 4 	Plaintiff requests remand for further proceedings.5 	She has exhausted her
administrative remedies and filed a Complaint seeking relief from this Court.6 	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. 7 For the reasons set forth below, Plaintiff’s request for relief is 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. 8
“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.” 9 Such evidence must be “more than a mere scintilla,” but may be “less than
a preponderance.” 10 	In reviewing the agency’s determination, the Court considers the
evidence in its entirety, weighing both the evidence that supports and that which detracts
4 In her initial applications, Plaintiff alleged disability beginning on December 30, 2014. A.R. 201–
04. Advised by counsel, Plaintiff adjusted her alleged onset date to July 27, 2015. A.R. 35, 1077,
1375. The application summaries, not the applications themselves, appear in the Court’s record.
5 Docket 18.
6 Docket 1 (Plaintiff’s Compl.).
7 42 U.S.C. § 405(g).
8 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)).
9 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)).
10 Perales, 402 U.S. at 401; Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975)
(per curiam).
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from the administrative law judge (“ALJ”)’s conclusion. 11 If the evidence is susceptible to
more than one rational interpretation, the ALJ’s conclusion must be upheld. 12 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 [s]he did not rely.”13
Even when the ALJ commits legal error, the 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.” 14 Finally, the ALJ has a “special duty to fully and fairly develop the record and to
assure that the claimant’s interests are considered.” 15 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.16
II. 	DETERMINING DISABILITY
11 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
12 Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citing Rhinehart v. Finch, 438 F.2d 920,
921 (9th Cir. 1971)).
13 Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).
14 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotations and citations
omitted).
15 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).
16 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001).
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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. 17 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. 18 	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.19
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.20
The Commissioner has established a five-step process for determining disability
within the meaning of the Act.21 A claimant bears the burden of proof at steps one through
17 42 U.S.C. § 423(a).
18 42 U.S.C. § 1381a.
19 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
20 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
21 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
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four in order to make a prima facie showing of disability. 22 	If a claimant establishes a
prima facie case, the burden of proof then shifts to the agency at step five. 23 	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.”24 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 since the
alleged onset date of July 27, 2015.25
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 consider age, education, or work
experience. 	The severe impairment or combination of impairments must satisfy the
twelve-month duration requirement. 26 The ALJ determined that Plaintiff had the following
severe impairments: status post stenting of aneurysm of the left ophthalmic artery;
degenerative disc disease of the cervical spine, status post fusion; degenerative disc
disease of the lumbar spine; and osteoarthropathy of the right shoulder. The ALJ found
22 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).
23 Treichler, 775 F.3d at 1096 n.1; Tackett, 180 F.3d at 1098 (emphasis in original).
24 Tackett, 180 F.3d at 1101.
25 A.R. 1077.
26 20 C.F.R. § 404.1505(a).
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that Plaintiff’s asthma, history of hypertension and hyperthyroid, and vision impairment
were non-severe impairments. 	The ALJ found that the record did not establish the
existence of a medically determinable severe mental impairment.27
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 Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of a listed impairment.28
Residual Functional Capacity. 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
impairments that are not severe. 29 	The ALJ concluded that Plaintiff had the RFC to
perform light work except she was limited to standing and walking combined for
approximately five hours in an eight-hour workday; unlimited sitting, provided Plaintiff
could stand and stretch at least every two hours or briefly walk such as to go get a file as
part of her job duties; occasionally climbing ramps or stairs; never climbing ladders, ropes,
27 A.R. 1077–79.
28 A.R. 1079.
29 20 C.F.R. § 404.1520(a)(4).
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or 	scaffolds; 	frequently 	balancing; 	occasionally 	stooping, 	kneeling, 	crouching, 	and
crawling; avoiding exposure to excessive vibration; and occasionally being exposed to
workplace 	hazards, 	such 	as 	working 	with 	dangerous 	machinery 	and 	working 	at
unprotected heights. 30
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
Plaintiff was capable of performing her past relevant work as a hospital admitting clerk
and an administrative clerk.”31
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
disabled. 	Because the ALJ determined that Plaintiff was capable of performing past
relevant work, the ALJ did not proceed to step five.32
The ALJ concluded that Plaintiff was not disabled from July 27, 2015, through
August 29, 2022, the date of the ALJ’s decision. 33
30 A.R. 1080.
31 A.R. 1090.
32 A.R. 1091.
33 A.R. 1091.
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III. 	PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff was born in 1965; she is 58 years old. 34 	On her alleged onset date, she
was “closely approaching advanced age” (Age 50–54) and subsequently changed age
categories to “advanced age” (Age 55+) prior to the ALJ’s August 2022 decision. 35 She
reported working as a nurse case manager from approximately 2006 through December
30, 2014. Prior to 2006, Plaintiff reported working as a teaching assistant. 36 Plaintiff met
the insured status requirements for DIB through December 31, 2020.37
Plaintiff protectively filed the relevant applications for DIB and SSI on April 16,
2018. 38 	On October 23, 2018, the Social Security Administration (“SSA”) initially
determined that Plaintiff was not disabled under the applicable rules. 39 On November 22,
2019, the ALJ issued an unfavorable ruling. 40 	On June 25, 2020, the Appeals Council
denied Plaintiff’s request for review, rendering the ALJ’s decision the SSA’s final
decision. 41 	Plaintiff timely appealed to this Court. 	Upon stipulation of the parties, the
34 A.R. 201.
35 A.R. 201. See 20 C.F.R. §§ 404.1563, 416.963.
36 A.R. 242.
37 A.R. 1077.
38 A.R. 201–04. 	Plaintiff’s previous application from April 24, 2017 was denied, her untimely
request for hearing was dismissed, and Plaintiff did not appeal. A.R. 35–36, 73–75.
39 A.R. 75, 97.
40 A.R. 16–26.
41 A.R. 1–6. See Sims v. Apfel, 530 U.S. 103, 107 (2000) (”[I]f . . . the [Appeals] Council denies
the request for review, the ALJ’s opinion becomes the final decision.”) (internal citations omitted).
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Court reversed and remanded for further proceedings on February 3, 2021. 42 On remand,
the Appeals Council directed the ALJ to:
(1) Obtain additional evidence concerning Plaintiff’s upper body impairments;
(2) If warranted and available, obtain a consultative examination and medical
source opinions about what Plaintiff can still do despite her impairments;
(3) Further consider the medical source opinions under the regulations
applicable to claims filed after March 27, 2017, enlisting the aid and
cooperation of Plaintiff’s representative to develop evidence from Plaintiff’s
medical sources;
(4) Re-evaluate Plaintiff’s alleged symptoms and RFC. If necessary, obtain
evidence from a medical expert related to Plaintiff’s reaching and upper
extremity limitations;
(5) Obtain supplemental evidence from a vocational expert to clarify the effect
of Plaintiff’s limitations on the occupational base, ask hypothetical
questions that reflect the specific capacity/limitations established by the
record as a whole, and ask the vocational expert to identify examples of
appropriate jobs and state the incidence of such jobs in the national
economy; and
(6) Identify and resolve any conflicts between the occupational evidence
provided by the vocational expert and information in the Dictionary of
Occupational Titles (DOT) and its companion publication, the Selected
Characteristics of Occupations. 43
42 A.R. 1160–63. 	The parties also stipulated to and the Court ordered remand on February 3,
2021. The Court ordered the Appeals Council to instruct the ALJ ”to further develop the record
and include the entire July 31, 2019 consultative examiner report by Ronald Christensen, M.D.;
reevaluate the medical opinion evidence; reevaluate the claimant’s residual functional capacity;
give the claimant an opportunity for a hearing; and issue a new decision.” See Case No. 3:20-
cv-00189-SLG, Docket 21 (D.Alaska Feb. 3, 2021).
43 A.R. 1167–68.
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After a hearing upon remand, a new ALJ issued an unfavorable decision on August
29, 2022. 44 Plaintiff requested review by this Court on November 1, 2022.45
IV. 	DISCUSSION
Plaintiff is represented by counsel. 	In her opening brief, Plaintiff asserts that the
ALJ harmfully erred by: (1) failing to find chronic pain syndrome a medically determinable,
severe impairment at step two in the sequential process and in determining the RFC and
(2) failing to consider the total limiting effects of Plaintiff’s impairments in formulating the
RFC. 46 The Commissioner disputes Plaintiff’s assertions. 47 The Court will address each
of Plaintiff’s assertions in turn:
A. 	Chronic Pain Syndrome and the ALJ’s Disability Evaluation Process
Plaintiff alleges the ALJ erred in failing to consider all of Plaintiff’s medically
determinable impairments. 	Specifically, she asserts that the ALJ failed to consider
Plaintiff’s chronic pain syndrome at step two of the sequential disability process and in
the RFC assessment. She alleges that the medical opinion evidence and her testimony
must be viewed with chronic pain syndrome in mind, as the “‘unifying diagnosis’
connecting her chronic pain-related disabilities together.”48 The Commissioner counters
that the ALJ did not err because the ALJ found evidence of severe impairments and
44 A.R. 1074–1091.
45 Docket 1.
46 Docket 18 at 15–31.
47 Docket 20 at 2–12.
48 Docket 18 at 16.
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decided step two in Plaintiff’s favor. 	The Commissioner also asserts that the ALJ
reasonably discounted Plaintiff’s self-reports because there was affirmative evidence of
malingering and the ALJ reasonably assessed the persuasiveness of the medical
opinions based on their supportability and consistency with the record. 49
1. 	Legal Standards
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. 50 	However, step two is a “de minimis screening
device [used] to dispose of groundless claims.” 51 	It is “not meant to identify the
impairments that should be taken into account when determining the RFC.” 52 The Ninth
Circuit has also held that an ALJ’s failure to address an impairment at step two is harmless
error when the ALJ considers limitations posed by the impairment at a later step in the
sequential disability evaluation. 53 	A court should affirm the ALJ’s determination of a
claimant’s RFC “if the ALJ applied the proper legal standard and [her] decision is
49 Docket 20 at 2–12.
50 Bowen v. Yuckert, 482 U.S. 137, 145 (1987); Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir.
2005) (internal citation omitted) (an ALJ must have substantial evidence to find that the medical
evidence clearly establishes that the claimant lacks a medically severe impairment or combination
of impairments); 20 C.F.R. §§ 404.1520(a)(4)(ii), (c).
51 Webb, 433 F.3d at 687.
52 Buck v. Berryhill, 869 F.3d 1040, 1048–49 (9th Cir. 2017).
53 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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supported by substantial evidence.” 54 And, it is “proper for an ALJ to limit a hypothetical
to those impairments that are supported by substantial evidence in the record.”55
2. 	Chronic Pain Syndrome
The Ninth Circuit has recognized that pain-based impairments “ha[ve] both a
physical and psychological component.” 56 The Social Security Administration addresses
somatic symptom disorder and related disorders in 20 C.F.R., Pt. 404, Subpt. P, App. 1
(the “Listings”). The regulations provide the following description of Listing 12.07:
a. These disorders are characterized by physical symptoms or deficits that
are 	not 	intentionally 	produced 	or 	feigned, 	and 	that, 	following 	clinical
investigation, cannot be fully explained by a general medical condition,
another mental disorder, the direct effects of a substance, or a culturally
sanctioned 	behavior 	or 	experience. 	These 	disorders 	may 	also 	be
characterized by a preoccupation with having or acquiring a serious medical
condition that has not been identified or diagnosed. Symptoms and signs
may include, but are not limited to, pain and other abnormalities of
sensation, gastrointestinal symptoms, fatigue, a high level of anxiety about
personal health status, abnormal motor movement, pseudoseizures, and
pseudoneurological symptoms, such as blindness or deafness.
b. Examples of disorders that we evaluate in this category include somatic
symptom disorder, illness anxiety disorder, and conversion disorder.
The Social Security Administration has also acknowledged that some impairments
are not easily evaluated using standard diagnostic tools. For example, it has recognized
54 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)).
55 Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001).
56 Lester v. Chater, 81 F.3d 821, 829 (9th Cir. 1995) (superseded by statute on other grounds)
(discussing a claimant’s “acute pain,” deemed “chronic pain syndrome” by a medical advisor)
(citing Bunnell v. Sullivan, 947 F.2d 341, 347 (9th Cir. 1991) (en banc) (recognizing that pain is “a
completely subjective phenomenon” and the Commissioner must consider all available evidence
in assessing complaints of pain)).
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a specific chronic pain syndrome in Social Security Ruling (“SSR”) 03-2p. 	This SSR
explains:
RSDS 	(Reflex 	Sympathetic 	Dystrophy 	Syndrome)/ 	CRPS 	(Complex
Regional Pain Syndrome) is a chronic pain syndrome . . .It is characteristic
of this syndrome that the degree of pain reported is out of proportion to the
severity of the injury sustained by the individual . . . It may be noted in the
treatment records that these signs are not present continuously, or the signs
may be present at one examination and not appear at another. 	Transient
findings are characteristic of RSDS/CRPS . . . It should be noted that
conflicting evidence in the medical record is not unusual in cases of RSDS
due to the transitory nature of its objective findings and the complicated
diagnostic process involved. 	Clarification of any such conflicts in the
medical evidence should be sought first from the individual’s treating or
other medical sources. 57
Despite multiple medical sources diagnosing Plaintiff with chronic pain syndrome
and related disorders, the ALJ did not identify or discuss chronic pain syndrome at step
two in the disability evaluation process. Instead, at step two, the ALJ found “no significant
mental status examination findings” and that “psychological evaluations [in the record]
have 	noted 	issues 	regarding 	invalidity 	due 	to 	poor 	effort 	and 	possible 	symptom
magnification, rendering them mostly unreliable.” 58 	The ALJ cited a state agency
psychologist’s observation that, based on a review the record as of September 28, 2018,
Plaintiff had only a provisional diagnosis of Somatic Disorder, which was not a medically
determinable impairment.”59 And the ALJ found testifying psychologist Collette Valette’s
57 Social Security Ruling (“SSR”) 03-2p, 2003 WL 22814447, at *1–5. 	“SSRs do not carry the
‘force of law,’ but they are binding on ALJs nonetheless.” Bray v. Comm’r of Soc. Sec. Admin.,
554 F.3d 1219, 1224 (9th Cir. 2009).
58 A.R. 1078.
59 A.R. 91, 1079.
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opinion persuasive that the record overall supported secondary gain, which explained
Plaintiff’s poor effort and performance, rather than somatic symptom disorder.60
However, 	throughout 	the 	record, 	Plaintiff 	was 	diagnosed 	with 	chronic 	pain
syndrome 	and 	related 	disorders, 	such 	as 	probable 	somatic 	symptom 	disorder,
kinesiophobia, 61 and hyperalgesia, 62 by multiple medical providers. 	For example, in
October 2016, Plaintiff saw Jared Kirkham, M.D., of Anchorage Fracture and Orthopedic
Clinic. He noted that Plaintiff’s CT of the cervical spine from December 8, 2015 showed
C6-C7 fusion without complications or stenosis. 	He reviewed Plaintiff’s MRI of the right
shoulder showing moderate AC degenerative changes and a moderate downsloping
acromion. He also noted that Plaintiff’s nerve conduction studies were normal and all
muscles examined showed no evidence of electrical instability. Dr. Kirkham opined that
Plaintiff’s symptoms seemed primarily myofascial in nature and Plaintiff’s presentation
was complicated by significant hyperalgesia. 63
On November 21, 2016, Dr. Kirkham diagnosed Plaintiff with “chronic neck pain
and postlaminectomy syndrome status post C6-C7 fusion. . .with no residual neurological
60 A.R. 1079.
61 Kinesiophobia is a fear of movement “in which a patient has an excessive, irrational, and
debilitating fear of physical movement and activity resulting from a feeling of vulnerability to painful
injury or re-injury.” 	See National Library of Medicine, National Center for Biotechnology
Information at https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9531655/#B42 (last visited July 10,
2023).
62 Hyperalgesia is a condition that causes extreme sensitivity to pain. A person with this condition
overreacts 	to 	painful 	stimuli, 	resulting 	in 	the 	person 	feeling 	increased 	pain. 	See
https://www.webmd.com/pain-management/what-is-hyperalgesia (last visited July 10, 2023).
63 A.R. 2741–42.
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deficit, but ongoing chronic pain syndrome, depression, kinesiophobia, and central pain
hypersensitivity.” 64 	In August 2017, Dr. Kirkham noted that Plaintiff’s chronic pain
syndrome 	was 	the 	“most 	likely 	unifying 	diagnosis 	for 	the 	patient’s 	multiple 	pain
complaints.” 65 	In addition to office visits with her medical providers, Plaintiff presented
multiple 	times 	to 	the 	emergency 	department 	for 	chronic 	pain 	from 	approximately
September 2016 through September 2019. 66
On August 30, 2017, Plaintiff saw Barbara Elias, PA-C, for chronic right shoulder
pain. 	PA Elias noted that the musculoskeletal examination was “severely limited by
hyperalgesia.” She diagnosed Plaintiff with moderate right AC joint arthrosis, chronic right
shoulder pain (likely myofascial), complex chronic pain syndrome, degenerative disc
disease (cervical spine), and anxiety. 67
From approximately June 2018 through September 2019, Plaintiff regularly saw
Luke Liu, M.D., at Neuroversion, for lower back and neck pain. Plaintiff underwent lumbar
injections, ketamine infusion, and other nonsurgical options to relieve pain, but reported
that her pain overall was unchanged or more severe after treatment. 68 On September 4,
64 A.R. 2701–03.
65 A.R. 340.
66 E.g., A.R. 549, 1025–29, 1030–36.
67 A.R. 598–603.
68 E.g., A.R. 889 (“At this time, she reports that her pain is either the same or more severe than it
was before the injection [about one month prior].”), 890 (past procedure history), 896 (pain
returning to baseline within two weeks of bilateral lumbar transforaminal epidural steroid injection),
905 (pain returned after bilateral sacroiliac joint injection), 915 (residual pain in lower back after
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2019, Dr. Liu diagnosed Plaintiff with chronic pain syndrome as his primary diagnosis,
defining it as a “summation of physical and psychological derangements.” The treatment
plan was to “identify and treat any specific treatable pain generators involved in the
maintenance of the constellation of pain symptoms, while [pursuing] palliative medical or
non-pharmacological therapies.” 69
Plaintiff also underwent multiple evaluations for her chronic pain and complaints of
memory disfunction. For example, on September 28, 2016, Plaintiff was referred to Paul
Craig, Ph.D. for a neuropsychological evaluation. Dr. Craig performed an interview and
administered multiple neuropsychological tests. 	He concluded that the evaluation was
not “an optimal estimate of [Plaintiff’s] actual abilities.” 	However, Dr. Craig commented,
“it is not thought that she was consciously attempting to perform subnormal. 	Rather,
[Plaintiff] was struggling so significantly with her chronic neck pain during testing that
some 	of 	the 	test 	results 	were 	probably 	less 	than 	optimal 	because 	of 	her 	being
preoccupied with the pain.” 70
On August 17, 2017, Plaintiff saw Kylie Hendren for an initial behavioral health visit
for depression and pain management. 	Therapist Hendren observed that when Plaintiff
lumbar interlaminar epidural steroid injection approximately two weeks prior), 956 (no significant
relief of pain with IV Ketamine).
69 A.R. 892–93.
70 A.R. 2362–71.
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talked about her emotions and feelings about her pain, “she seem[ed] to wince more and
cry — showing a serious correlation between the two.”71
In September 2018, Plaintiff saw Michael C. Rose, Ph.D., for a consultative
evaluation. 	Based on a review of the medical records available, an interview, and a
mental status examination, Dr. Rose diagnosed Plaintiff with “Probable Somatic Symptom
Disorder with persistent pain.” 	He commented that his assessment findings were “not
likely to be a fully reliable and valid estimate of her cognitive or psychological abilities due
to apparent symptom magnification.” 	He noted that “[w]hile she may indeed have bona
fide physical and/or psychological problems, due to a lack of valid effort as well as
evidence of symptom magnification or exaggeration, it is very difficult to know the true
nature or extent of the reported problems.” 72
In October 2019, Plaintiff saw Brandy Atkins, DNP, at Orthopedic Physicians
Alaska, to identify surgical options in relation to chronic lower back pain complaints. DNP
Atkins determined that Plaintiff was not a good surgical candidate. 	She noted that
Plaintiff’s “pain is out of proportion to her MRI findings” and diagnosed Plaintiff with lumbar
degenerative disc disease, disc displacement, and chronic pain syndrome. 73
Although the ALJ identified that Plaintiff “consistently reported significant pain and
limited mobility and ambulation,” she did not discuss or acknowledge that chronic pain
71 A.R. 620–21.
72 A.R. 864–68.
73 A.R. 968–70.
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syndrome has “both a physical and psychological component.” 74 	Nor did the ALJ
acknowledge that “it is characteristic of [chronic pain] syndrome that the degree of pain
reported is out of proportion to the severity of the injury sustained by the individual.” 75
Because the ALJ must consider all available evidence in assessing complaints of pain,
the ALJ’s failure to acknowledge or discuss Plaintiff’s chronic pain syndrome was error.
However, as stated above, any error at step two in identifying chronic pain
syndrome as a medically determinable impairment is harmless if the ALJ adequately
addressed Plaintiff’s limitations in the RFC. 76 	Here, Plaintiff asserts that her testimony
and the medical opinion evidence show she is disabled, or “at the very least,” establish
greater limitations not already accounted for by the ALJ’s RFC assessment. She alleges
that the ALJ’s failure to include these limitations was harmful error. 77 The Court addresses
Plaintiff’s testimony and the medical opinions as follows:
B. Plaintiff’s Symptom Allegations
74 Lester v. Chater, 81 F.3d 821, 829 (9th Cir. 1995) (superseded by statute on other grounds)
(discussing a claimant’s “acute pain,” deemed “chronic pain syndrome” by a medical advisor)
(citing Bunnell v. Sullivan, 947 F.2d 341, 347 (9th Cir. 1991) (en banc) (recognizing that pain is “a
completely subjective phenomenon” and the Commissioner must consider all available evidence
in assessing complaints of pain)).
75 SSR 03-2p, 2003 WL 22814447, at *1.
76 Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (Because the ALJ considered limitations
posed by Lewis’s bursitis at step four, “any error that the ALJ made in failing to include the bursitis
at Step 2 was harmless.”).
77 Docket 18 at 25.
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An ALJ’s assessment of a claimant’s symptoms has two steps. 78 	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.” 79 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.”80
In the first step, the claimant “need not show that her impairment could reasonably
be expected to cause the severity of the symptom she has alleged; she need only show
that it could reasonably have caused some degree of the symptom.” 81 	Here, the ALJ
determined that Plaintiff had severe physical impairments, but no medically determinable
mental impairments.82
In the second step, the ALJ evaluates the intensity and persistence of a claimant’s
symptoms by considering “all of the available evidence from [the claimant’s] medical
sources and nonmedical sources about how [the claimant’s] symptoms affect [her].”83 	If
a claimant produces objective medical evidence of an underlying impairment, the ALJ
78 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014).
79 Lingenfelter, 504 F.3d at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en
banc)).
80 Treichler, 775 F.3d at 1102 (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.1996)).
81 Smolen, 80 F.3d at 1282.
82 A.R. 1077.
83 20 C.F.R. §§ 404.1529(c)(1). See also SSR 16-3p, 2017 WL 5180304.
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may 	reject 	testimony 	regarding 	the 	claimant’s 	subjective 	pain 	or 	the 	intensity 	of
symptoms, but must provide “specific, clear and convincing reasons for doing so.” 84 The
ALJ is required to “specifically identify the testimony from a claimant she or he finds not
to be credible and explain what evidence undermines [that] testimony”; general findings
are insufficient. 85
In this case, the ALJ found that Plaintiff’s medically determinable impairments
could reasonably be expected to cause her alleged symptoms, but Plaintiff’s 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.
Specifically, the ALJ discounted Plaintiff’s “history of chronic pain complaints and
allegations with significant limitations” because the medical evidence contained only
“modest objective findings that are not consistent with the extent of [Plaintiff]’s reports and
allegations.” 	The ALJ also found that Plaintiff’s psychological examinations were not
reliable due to symptom magnification. 	Although the ALJ did not expressly find that
Plaintiff was malingering, she found “there are indications of possible secondary gain.” 86
And the ALJ found Dr. Valette’s testimony persuasive; specifically, Dr. Valette’s testimony
that secondary gain explained Plaintiff’s “poor effort and performance” at the consultative
84 Smolen, 80 F.3d at 1281.
85 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).
86 A.R. 1081.
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evaluation in September 2018 with Dr. Rose. 87 	The ALJ determined Plaintiff’s physical
examinations were inconsistent, but that the assessed RFC accommodated the “findings
that are consistent with some limitations” and Plaintiff’s pain complaints. 88
Plaintiff alleges the ALJ’s findings regarding Plaintiff’s pain complaints are not
supported by the record. 	Specifically, Plaintiff alleges the ALJ erred in finding that the
record indicated Plaintiff was motivated by possible secondary gain. 	She alleges the
ALJ’s discounting of Plaintiff’s claims of significant difficulties with ambulation and need
for assistive devices was also unsupported in the record.89 The Commissioner counters
that the ALJ “reasonably discounted Plaintiff’s self-reports because there was affirmative
evidence of malingering.”90
The ALJ may consider symptom magnification and secondary gain in an analysis
of symptom testimony, but the ALJ must identify specific, clear, and convincing evidence
of improper secondary gain. 91 	Here, only Dr. Valette opined that the record showed
87 A.R.1079.
88 A.R. 1081–82.
89 Docket 18 at 30–31.
90 Docket 20 at 3–4.
91 Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014) (finding that the treating physician’s
suggestion that “perhaps there was an issue of secondary gain” without other reasons supported
by substantial evidence was insufficient to meet the specific, clear, and convincing standard.)
(emphasis in original); see also Austin v. Saul, 818 Fed.Appx. 725, 728 (9th Cir. 2020) (“Nor do
we equate a claimant’s possible exaggerations regarding the severity of his symptoms with
affirmative evidence of malingering.”).
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secondary gain and malingering. 92 And, although the ALJ stated Dr. Valette’s testimony
was based on a review of the record with detailed explanations and citations, it appears
Dr. Valette’s opinion on secondary gain was based on her review of the report of an
evaluation conducted by a different psychologist and her opinion contradicted the
diagnosis and conclusions of the evaluator. 93 Specifically, Dr. Valette referenced Plaintiff’s
inability to name the country she was living in and the year during the 2018 psychological
evaluation administered by Dr. Rose was motivated by secondary gain. 94 	She testified
that “someone can be in pain and still be cognitive[ly] intact.” 95 	When questioned by
Plaintiff’s counsel regarding somatic symptom disorder as an alternative to secondary
gain as an explanation for Plaintiff’s performance in Dr. Rose’s evaluation, Dr. Valette
92 A.R. 58. 	However, the Court also notes that Deana Glick, PA-C, opined that Plaintiff’s “pain
level appears out of proportion to the typical[ ] outcomes” after cervical spine surgery and she
was “[c]onsidering adjacent level degeneration or possibly secondary gain, it is unclear.” PA Glick
recommended pain management for further evaluation and treatment options. A.R. 559.
93 As the Court has noted in the past, at least one ALJ in the Ninth Circuit has excluded the opinion
of Dr. Valette because of her disciplinary history. 	See Smith v. Saul, No. 3:19-cv-00123-RRB,
2020 WL 13538684, at *2 (D. Alaska Jan. 27, 2020) (citing Quinones v. Comm’r of Soc. Sec., No.
19CV274-W (BLM), 2019 WL 3817997, at *7 (S.D. Cal. Aug. 14, 2019) (noting that the
Psychological Evaluation performed by Dr. Valette dated January 6, 2014, was given no weight
by the ALJ hearing the case, based upon objection of Claimant’s counsel). Moreover, a public
records search reveals two disciplinary actions by the Colorado State Board of Psychologist
Examiners against Dr. Valette; one admonition effective May 2, 2016 and a second admonition
effective April 5, 2022. 	See COLORADO DEPARTMENT OF REGULATORY AGENCIES, DIVISION OF
PROFESSIONS AND O CCUPATIONS , VERIFY A COLORADO PROFESSIONAL OR BUSINESS L ICENSE,
https://apps.colorado.gov/dora/licensing/Lookup/LicenseLookup.aspx.
94 Dr. Rose did not comment specifically about Plaintiff’s inability to name the correct year or the
country she was living in. Instead, Dr. Rose commented that the results of Plaintiff’s “Mini-Mental
Status Examination” should be “viewed skeptically” because Plaintiff “did not appear to be giving
a valid effort due to complaints of pain.” A.R. 867.
95 A.R. 58.
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reiterated that “secondary ga[in] plays an important part of not knowing what country
you’re living in and not knowing what date it is, not even the year.”96 Dr. Valette concluded
at the first hearing that she would have diagnosed malingering based on her review of Dr.
Rose’s evaluation, and not Somatic Symptom Disorder.97
However, none of Plaintiff’s medical providers diagnosed malingering, including Dr.
Rose. Dr. Valette’s testimony is contrary to Dr. Rose’s conclusion that Plaintiff appeared
to meet the diagnostic criteria for somatic system disorder with persistent pain. 98
Moreover, the ALJ’s summary of Dr. Rose’s mental status examination does not include
Dr. Rose’s explanation for Plaintiff’s less than valid effort. The ALJ stated that “Dr. Rose
noted [Plaintiff] did not appear to be giving a valid effort,” 99 but the ALJ did not include the
rest of Dr. Rose’s sentence which reads, “due to complaints of pain, so the following
information should be viewed skeptically.” 100
While there is no affirmative evidence of malingering, the Court acknowledges that
the record is replete with records describing Plaintiff’s out-of-proportion pain complaints,
pain complaints interfering with functional assessments, and symptom magnification.
96 A.R. 59.
97 A.R. 58, 864–68.
98 A.R. 868. The fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-
5) defines somatic symptom disorder as “the manifestation of one or more physical symptoms
accompanied by excessive thoughts, emotion, and/or behavior related to the symptom, which
causes significant distress and/or dysfunction. These symptoms may or may not be explained by
a medical condition.” See https://www.ncbi.nlm.nih.gov.
99 A.R. 1078.
100 A.R. 867 (emphasis added).
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However, 	these 	records 	show 	that 	Plaintiff’s 	medical 	providers 	and 	consultative
examiners 	repeatedly 	linked 	Plaintiff’s 	reports 	of 	physical 	pain 	with 	a 	mental
component. 101 Yet, the ALJ isolated Plaintiff’s physical impairments in her decision while
citing 	evidence 	of 	a 	psychological 	overlay 	to 	discredit 	Plaintiff’s 	subjective 	pain
complaints. 102 	Because the ALJ must consider all available evidence in assessing
complaints of pain, the ALJ’s failure to acknowledge or discuss Plaintiff’s chronic pain
syndrome was error.
Plaintiff also provides examples of evidence in the record to contradict the ALJ’s
conclusion that the record demonstrated “little objective evidence to support the need for
assistive devices that are sometimes noted in the record, or to support her allegations of
significant 	difficulties 	with 	ambulation.” 103 	As 	set 	forth 	above, 	if 	the 	evidence 	is
susceptible to more than one rational interpretation, the ALJ’s conclusion must be
upheld. 104 	Although Plaintiff’s examples show that Plaintiff used assistive devices,
Plaintiff has not claimed that a medical provider wrote a prescription for an assistive
device and the objective evidence does not appear to support the use of assistive
devices. 105 	But by failing to acknowledge or address Plaintiff’s chronic pain syndrome
101 See e.g., A.R. 620–21, 868, 892–93, 968–70, 2365.
102 A.R. 1080 (the RFC has no limitations for mental impairments), 1081–1085.
103 Docket 18 at 26–27; A.R. 1081.
104 Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citing Rhinehart v. Finch, 438 F.2d
920, 921 (9th Cir. 1971)).
105 Docket 18 at 26–27.
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and related disorders, including the out-of-proportion pain reports and inconsistencies
with the objective medical findings that are characteristic of chronic pain syndrome, the
ALJ’s reasons for discounting Plaintiff’s pain complaints are not specific, clear, or
convincing.
C. 	Medical Opinions of PT Ross, Dr. Caldwell, Dr. Lebeau, and Dr. Christensen
Plaintiff asserts that the ALJ’s rejection of PT Ross’s opinion that Plaintiff was
unable 	to 	work, 	Dr. 	Caldwell’s 	opinion 	regarding 	occasional 	reaching, 	and 	Dr.
Christensen’s opinion that Plaintiff was limited to sedentary work, constitute harmful error.
Plaintiff also asserts that the ALJ erred by finding Dr. Lebeau’s testimony persuasive. 106
The Commissioner counters that the ALJ reasonably assessed the medical opinions
based on their supportability and consistency with the record. 107
1. 	The SSA Regulations for Claims Filed After March 27, 2017
Plaintiff applied for DIB and SSI benefits on or about April 16, 2018, so the
regulations that became effective on March 27, 2017, apply to her claim. 108 Under these
new regulations, the definition of what constitutes a medical opinion has been narrowed,
focusing on what the claimant can do despite her impairments and what work-related
limitations are present. 109 The new regulations define a medical opinion as follows:
106 Docket 18 at 26–31.
107 Docket 20 at 4–12.
108 On January 18, 2017, the SSA published revisions to the rules regarding the evaluation of
medical evidence. The revisions became effective on March 27, 2017. See 82 C.F.R. § 5844,
5869 (1-18-2017).
109 Compare 20 C.F.R. § 404.1527 with 20 C.F.R. § 404.1513(a)(2).
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A medical opinion is a statement from a medical source about what you can
still do despite your impairment(s) and whether you have one or more
impairment-related limitations or restrictions in the following abilities:
(i) 	Your ability to perform physical demands of work activities, such as
sitting, standing, walking, lifting, carrying, pushing, pulling, or other
physical functions (including manipulative or postural functions, such
as reaching, handling, stooping, or crouching);
(ii) 	Your ability to perform mental demands of work activities, such as
understanding; 	remembering; 	maintaining 	concentration,
persistence, 	or 	pace; 	carrying 	out 	instructions; 	or 	responding
appropriately to supervision, co-workers, or work pressures in a work
setting;
(iii) 	Your ability to perform other demands of work, such as seeing,
hearing, or using other senses; and
(iv) 	Your 	ability 	to 	adapt 	to 	environmental 	conditions, 	such 	as
temperature or fumes.110
The new regulations further provide that the ALJ no longer gives any particular
weight to a medical opinion based on its source, thereby eliminating the treating source
rule. 111 Instead, the ALJ considers the persuasiveness of a medical opinion based on five
factors: (1) supportability; (2) consistency; (3) relationship with the claimant, including
length, extent, and type of treatment; (4) specialization; and (5) other relevant factors that
support or contradict the medical opinion. 112
110 20 C.F.R. § 404.1513(a)(2).
111 Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844-01 (Jan.
18, 2017), 2017 WL 168819, at *5867–68; 20 C.F.R. §§ 404.1520c(a), 416.920c(a) (for claims
filed on or after March 27, 2017).
112 20 C.F.R. §§ 404.1520c(c), 416.920c(c).
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Supportability and consistency are considered the most important factors for
evaluating persuasiveness. 113 Supportability and consistency are explained as follows in
the regulations:
(1) Supportability. The more relevant the objective medical evidence and
supporting explanations presented by a medical source are to support his
or her medical opinion(s) or prior administrative medical finding(s), the more
persuasive the medical opinions or prior administrative medical finding(s)
will be.
(2) Consistency. 	The 	more 	consistent 	a 	medical 	opinion(s) 	or 	prior
administrative medical finding(s) is with the evidence from other medical
sources and nonmedical sources in the claim, the more persuasive the
medical opinion(s) or prior administrative medical finding(s) will be. 114
Generally, these are the only two factors the ALJ is required to address in her decision. 115
However, when two or more medical opinions or prior administrative medical findings
“about the same issue are both equally well-supported . . . and consistent with the record
. . . but are not exactly the same,” the ALJ must explain how “the other most persuasive
factors” were considered. 116 In the Ninth Circuit, the new regulatory framework no longer
113 The regulations state, “The factors of supportability . . . and consistency . . . are the most
important factors [the SSA] consider[s] when [the SSA] determine[s] how persuasive [the SSA]
find[s] a medical source’s medical opinions or prior administrative medical findings to be.” 	20
C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2) (for claims filed on or after March 27, 2017).
114 20 C.F.R. §§ 404.1520c(c)(1)-(2), 416.920c(c)(1)-(2).
115 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2) (“[W]e will explain how we considered the
supportability 	and 	consistency 	factors 	for 	a 	medical 	source’s 	medical 	opinions 	or 	prior
administrative medical findings in your determination or decision.”).
116 20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3) (for claims filed on or after March 27, 2017).
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requires ALJs to provide “specific and legitimate” or “clear and convincing” reasons for
rejecting a treating or examining medical source’s opinion. 117
2. 	PT Ross’s Opinion
In September 2019, Plaintiff saw Chad Ross, PT, DPT, for a work restrictions
assessment that took three days to complete. 	Based on PT Ross’s observations and
objective physical therapy testing, PT Ross recommended no part-time or full-time work.
He noted that Plaintiff demonstrated “marked limitation” in her tolerance for work related
physical testing and her walking and standing performance was deemed unsafe. PT Ross
also observed that Plaintiff sat in her wheelchair for approximately 10 minutes at a time
during testing, but she was unable to sit for longer amounts of time.118 	PT Ross also
noted that Plaintiff was unable to perform any productive manual tasks with her right
arm.119
The ALJ found PT Ross’s opinion unpersuasive because “[i]t was based on
[Plaintiff]’s subjective reports and her presentation during the evaluation which is not
supported by the medical evidence.” 120 	Lack of objective medical evidence is sufficient
to reject a medical opinion which is “brief, conclusory, and inadequately supported by
clinical findings.” 121 	However, a medical source’s opinion should be evaluated in the
117 Woods v. Kijakazi, 32 F.4th 785 (9th Cir. 2022).
118 Plaintiff used a wheelchair and other assistive devices, but Plaintiff does not claim that her
medical providers prescribed such devices. Docket 18 at 26–28.
119 A.R. 883–85.
120 A.R. 1089–90.
121 Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020).
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context of that source’s treatment notes. 122 Here, PT Ross’s work opinion was based on
his 	observations 	of 	Plaintiff 	over 	three 	days, 	an 	examination 	of 	Plaintiff, 	and 	an
assessment 	based 	on 	various 	performance 	tests 	simulating 	work 	conditions. 123
Moreover, without acknowledging or addressing Plaintiff’s chronic pain syndrome and
related disorders, the ALJ’s reliance on objective medical evidence alone is not sufficient
to reject PT Ross’s work opinion.
3. 	Reviewing State Agency Physician Dr. Caldwell
On September 28, 2018, reviewing state agency physician Jay Caldwell, M.D.,
M.P.H., Ph.D., opined that Plaintiff should be limited to frequent pushing and pulling in the
right upper extremity and occasional reaching and handling on the right. 	Dr. Caldwell
also opined that Plaintiff’s “[c]redibility is almost completely shot, although from her point-
of-view she does experience life-altering pain.” 	He also noted Plaintiff’s “[s]evere,
multifactorial pain syndrome related to [her] neck, shoulder, and low back . . . most
recently diagnosed as Somatic Symptom Disorder.”124
The ALJ found Dr. Caldwell’s limitations related to Plaintiff’s right upper extremity
were not adequately explained, sufficiently supported, or consistent with the overall
record. 	The ALJ reasoned that although imaging showed moderate findings, Plaintiff
122 See 20 C.F.R. §§ 404.502(f) (“Objective medical evidence means signs, laboratory findings,
or both.”), 404.502(g) (“Signs means one or more anatomical, physiological, or psychological
abnormalities that can be observed, apart from your statements (symptoms). 	Signs must be
shown by medically acceptable clinical diagnostic techniques.”).
123 A.R. 883–85.
124 A.R. 869–76.
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received “minimal treatment and examinations have noted normal upper extremity
strength and sensation.”125 The ALJ also cited a notation by Plaintiff’s medical provider
in September 2017. 126 	In that notation, when Plaintiff requested a letter stating Plaintiff
was disabled, her provider, Naomi Torrance, DNP, stated she had “told [Plaintiff] before
that I would leave such a determination up to the SSI physicians, because [Plaintiff]’s
case is quite complicated and while she has pain, she has full use of all 4 appendages
and the cognitive ability to work.”127
Courts in the Ninth Circuit have found that, even under the new regulations
governing medical opinions, an ALJ may not “cherry-pick” the record to make a
supportability or consistency finding. 128 	Here, the ALJ acknowledged that the objective
medical 	evidence 	regarding 	Plaintiff’s 	right 	upper 	extremity 	showed 	moderate
degenerative changes, 129 but discounted this evidence in her evaluation of Dr. Caldwell’s
opinion. 130 	Moreover, as with the other medical opinions of record, the ALJ’s review of
Dr. Caldwell’s opinions ignores all of Dr. Caldwell’s references to a psychological element
involved with Plaintiff’s physical impairments.
125 A.R. 1087–88.
126 A.R. 1082.
127 A.R. 584.
128 Buethe v. Comm’r of Soc. Sec., No. 2:20-cv-552-KJN, 2021 WL 1966202, at *5 (E.D. Cal. May
17, 2021) (citing cases); see also Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (the court
may not affirm where the ALJ “pick[ed] out a few isolated instances of improvement” to support
the denial of benefits.).
129 A.R. 918.
130 A.R. 1087–88.
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Plaintiff also asserts, in a footnote, that the ALJ failed to follow this Court’s
instruction and the Appeals Council’s order on remand to obtain additional evidence
regarding 	Plaintiff’s 	upper 	extremity 	limitations 	because 	the ALJ 	did 	not 	order 	a
consultative examination. 131 	The Court’s Order Re Stipulated Motion for Remand does
not specifically reference the need for additional evidence concerning Plaintiff’s upper
extremities.132 	However, on March 5, 2021, the Appeals Council ordered the ALJ to
“obtain additional evidence concerning the claimant’s upper body impairments in order to
complete the administrative record . . . The additional evidence may include, if warranted
and available, a consultative examination and medical source opinions about what the
claimant can still do despite the impairment.”133
As noted by the Appeals Council, Plaintiff’s ability to reach frequently is required
for Plaintiff to perform her past relevant work as a hospital administrative clerk/admitting
clerk. 134 	Because the ALJ did not obtain additional evidence regarding Plaintiff’s upper
body impairments and the ALJ’s evaluation of Dr. Caldwell’s opinion is not supported by
substantial evidence, the Court will also provide instructions on remand to the ALJ to
comply with the Appeals Council’s previous remand order concerning Plaintiff’s upper
extremity impairments.
4. 	Dr. Lebeau’s testimony
131 Docket 18 at 26, n.19.
132 A.R. 1160. See also n. 42.
133 A.R. 1167.
134 A.R. 1166; See DICTIONARY OF OCCUPATIONAL T ITLES (“DOT”) 205.362-018.
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Plaintiff asserts that Dr. Lebeau’s testimony should not have been used by the ALJ
to discount Dr. Caldwell’s medical opinions regarding Plaintiff’s right upper extremity
impairment. She asserts that Dr. Lebeau expressed confusion regarding Plaintiff’s case,
he did not have the requisite experience to interpret the medical records and issue an
informed, professional opinion regarding chronic pain syndrome in the same way a pain
management or physical medicine and rehabilitation physician would be able to provide,
and his testimony was “highly offensive” and “riddled with bias.” 135 	The Commissioner
counters 	that 	Plaintiff’s 	“own 	interpretation 	of 	Dr. 	Lebeau’s 	opinion 	cannot 	justify
overturning the ALJ’s reasonable and unchallenged findings under the deferential
substantial evidence standard of review.” 136
The ALJ noted that Dr. Lebeau opined that manipulative limitations for the upper
extremity were not supported by the medical record and found this opinion more
persuasive than Dr. Caldwell’s opinion. The ALJ reasoned that Dr. Lebeau’s opinion came
later in time and was therefore based on a more complete record.137
Although Plaintiff provides examples from the medical record of upper extremity
limitations, it is not this Court’s role to reweigh the evidence. 138 However, as pointed out
by Plaintiff, Dr. Lebeau’s testimony reflects confusion and insensitivity regarding Plaintiff’s
135 Docket 18 at 29.
136 Docket 20 at 9.
137 A.R. 1088.
138 Docket 18 at 27–29. See Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (“We may not
reweigh the evidence or substitute our judgment for that of the ALJ.”).
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pain vis-a-vis the objective medical findings in the record. 139 	And despite Plaintiff’s
attorney specifically asking for expert testimony on somatic symptom disorder at Listing
12.07, Dr. Lebeau did not address the Listing 12.07 criteria in his testimony. 140 	On
remand, the ALJ should obtain evidence from an expert familiar with chronic pain
syndrome and related disorders. 141
5. 	Dr. Christiansen’s Opinion
On July 31, 2018, Plaintiff saw family practitioner Ronald E. Christensen, M.D., for
a 	consultative 	examination. 	Based 	on 	a 	record 	review, 	interview, 	and 	physical
examination, Dr. Christensen’s assessments included chronic right shoulder pain with AC
arthritis, chronic low back pain with early degenerative disc disease, and probable anxiety,
depression, kinesiophobia, and disability behavior. 	He noted that Plaintiff refused
manipulation of her neck and shoulders due to pain and refused range of motion testing
139 See e.g., A.R. 44 (“I said she was living the life of an invalid . . . and that her muscles are
deconditioned because she’s just lying around and not really accomplishing anything.”), 44 (“The
only thing [that] remains is just . . . peculiar pain in which you see her pain syndrome.”), 49 (“I
think one of the problems we’re having . . . is that we’re faced with conflicting statements,
conflicting physical findings that make no sense, and it’s just hard to say what is what.”), 54 (“I
just don’t see now that we can understand exactly what makes her so disabled . . .[I]t just doesn’t
make sense. There’s nothing, you know, physiologic about a lot of these complaints. They just
don’t go on in normal people and that’s the best I can say.”).
140 At the October 16, 2019 hearing, Plaintiff’s attorney stated, “I am going to allege or point out
that the record also would support a 12.07 somatic symptom disorder.” The ALJ then noted that
medical experts had been called to testify regarding both Plaintiff’s physical and mental
impairments. Plaintiff’s attorney then stated, “So we’ll see if Dr. [Lebeau] can opine on [Listing
12.07] as well.” A.R. 38.
141 See Fruichantie v. Saul, Case No. 3:20-cv-00131-RRB, 2021 WL 2661137, at *5–7 (D. Alaska
June 21, 2021) (“The ALJ’s reliance on the testimony of an ‘expert’ who was unfamiliar with
Claimant’s primary condition was error.”). 	Dr. Lebeau’s expertise is in cardiology and internal
medicine. A.R. 877–79.
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of her back. 	He also noted that Plaintiff’s lower extremities could not be assessed
because the examination was performed with Plaintiff standing and her husband holding
on to her. 	Dr. Christensen opined that “[b]ased on today’s examination, [Plaintiff] is
generally sedentary and has limited function.” He stated that he believed there was “quite
a psychiatric overlay that is compounding her limitations. A psychiatric evaluation would
be helpful.” 142
The ALJ was directed by the Appeals Council on remand from this Court to include
a missing page from Dr. Christiansen’s examination and provide an evaluation of his
opinion. 143 In the decision after remand, the ALJ found Dr. Christiansen’s opinion was not
persuasive because he did not define “sedentary” and did not provide a functional
assessment. The ALJ also noted that Dr. Christiansen’s findings were “minimal” due to
Plaintiff’s 	“lack 	of 	cooperation” 	and 	a 	“psychiatric 	overlay.” 	The ALJ 	found 	Dr.
Christiansen’s conclusions unreliable because they were based only on Plaintiff’s
presentation and subjective reports and lacked corroborative objective findings. 144
Plaintiff asserts that the ALJ erred in rejecting Dr. Christiansen’s opinion that
Plaintiff 	was 	limited 	to 	sedentary 	work 	because 	Dr. 	Christiansen 	did 	not 	define
“sedentary.” 145 	The 	Commissioner 	counters 	that 	Dr. 	Christiansen 	was 	describing
Plaintiff’s lifestyle as sedentary, not that Plaintiff could perform sedentary work, and that
142 A.R. 2217.
143 A.R. 1167.
144 A.R. 1087.
145 Docket 18 at 30.
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the ALJ reasonably found Dr. Christiansen’s opinion unexplained and unpersuasive. 146
The Court agrees with the Commissioner that Dr. Christiansen’s use of the word
“sedentary” does not appear to be an opinion regarding Plaintiff’s ability to do sedentary
work. 	And much of Dr. Christiansen’s examination of Plaintiff was hindered by pain
complaints, guarding, and other behaviors. 147 	However, the ALJ is required to consider
the combined effects of all of a claimant’s impairments. 148 The impairments “must not be
fragmentized in evaluating their effects.” 149 As with the medical opinions of PT Ross and
Dr. Caldwell, the ALJ did not address Plaintiff’s chronic pain syndrome, somatic symptom
disorder, or related disorders in combination with Plaintiff’s severe physical impairments.
For the reasons provided above, substantial evidence does not support the ALJ’s
rejection of Plaintiff’s testimony and her treating and examining medical source opinions
with respect to the effects of Plaintiff’s chronic pain syndrome, somatoform disorder, and
related disorders in combination with her physical impairments. As a result, the ALJ did
not adequately include limitations for Plaintiff’s chronic pain syndrome in the RFC.
Therefore, the ALJ’s failure to address chronic pain syndrome is not harmless and is
reversable error. 150
146 Docket 20 at 10.
147 A.R. 2215–17.
148 20 C.F.R. § 416.923.
149 Lester v. Chater, 81 F.3d 821, 829 (9th Cir. 1995) (superseded by statute on other grounds)
(internal quotation omitted).
150 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015).
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D. 	Scope of Remand
Plaintiff requests that the Court enter judgment under 42 U.S.C. § 405(g), reversing
the SSA’s final decision and remanding for further proceedings. 151 The “ordinary remand
rule” applies to disability cases. When prejudicial error has occurred, “the proper course,
except in rare circumstances, is to remand to the agency for additional investigation or
explanation.”152 	For the above reasons, the proper remedy is to remand for further
administrative proceedings and the issuance of a new decision with appropriate findings
at each step of the sequential evaluation.
V. 	ORDER
The Court, having carefully reviewed the administrative record, finds that the ALJ’s
determinations 	are 	not 	free 	from 	legal 	error 	and 	not 	supported 	by 	substantial
evidence. Accordingly, IT IS ORDERED that Plaintiff’s request for relief at Docket 18 is
GRANTED and the Commissioner’s final decision is VACATED and REMANDED for
further proceedings. Upon remand, the ALJ should be instructed to:
1. 	Evaluate the psychological component of Plaintiff’s pain complaints, including
her chronic pain syndrome diagnosis and related disorders, and discuss the
combined effects of all of Plaintiff’s impairments.
2. 	Obtain 	a 	consultative 	examination 	and 	medical 	source 	opinion 	from 	an
appropriate expert concerning the psychological component of Plaintiff’s pain
151 Docket 18 at 31.
152 Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (quoting Treichler, 775 F.3d at 1099).
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complaints, 	including 	her 	chronic 	pain 	syndrome 	diagnosis 	and 	related
disorders, or obtain testimony from an expert trained in pain management.
3. 	Obtain 	additional 	evidence 	concerning 	Plaintiff’s 	upper 	body 	limitations,
including medical opinions and if warranted and available, a consultative
examination to determine what Plaintiff can still do despite the impairment.
The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 10th day of October, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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