Anderson v. O'Malley

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
KRISTIN M.A.,1
Plaintiff,
v.
MARTIN O’MALLEY,2 Commissioner of
Social Security,
Defendant.
Case No. 3:23-cv-00064-JMK
DECISION AND ORDER
1 Plaintiff’s name is partially redacted in accordance 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 Martin O’Malley became the Commissioner of Social Security on December 20, 2023. Pursuant
to Rule 25(d) of the Federal Rules of Civil Procedure, Martin O’Malley is substituted for Kilolo
Kijakazi as the defendant in this suit.
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On or about July 26, 2019, Kristin M.A. (“Plaintiff”) protectively filed an application
under Title II of the Social Security Act,3 with an alleged onset date of January 17, 2017.4
Plaintiff has exhausted her administrative remedies and filed a Complaint seeking relief
from this Court.5 	Plaintiff’s Opening Brief asks the Court to reverse and remand the
agency’s decision for further administrative proceedings under sentence four of 42 U.S.C.
§ 405(g).6 	The Commissioner filed the Administrative Record and a Response Brief.7
Plaintiff filed a Reply Brief.8
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
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 Title II only. 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.
4 Administrative Record (“A.R.”) 15, 382. 	The application summary, not the application itself,
appears in the Court’s record and is dated September 20, 2019. A.R. 382. 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, July 26, 2019, is considered Plaintiff’s application filing date. A.R. 15.
5 Docket 1 (Plaintiff’s Compl.).
6 Docket 13 (Plaintiff’s Br.).
7 Docket 8, 9, 10 (Notice of Lodging Admin. Record); Docket 15 (Commissioner’s Br.). 	As of
December 1, 2022, the Commissioner’s “answer may be limited to a certified copy of the
administrative record.” See Fed. R. Civ. P., Supp. R. 4(b) of Soc. Sec. Actions under 42 U.S.C.
§ 405(g) (effective Dec. 1, 2022).
8 Docket 16 (Reply).
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Social Security.9 	For the reasons discussed below, Plaintiff’s request for relief at
Docket 13 is DENIED.
I. 	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.10
“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.”11 Such evidence must be “more than a mere scintilla,” but may be “less than
a preponderance.”12 	In reviewing the agency’s determination, the Court considers the
evidence in its entirety, weighing both the evidence that supports and that which detracts
from the administrative law judge (“ALJ”)’s conclusion.13 If the evidence is susceptible to
more than one rational interpretation, the ALJ’s conclusion must be upheld.14 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.”15 	An ALJ’s
9 42 U.S.C. § 405(g).
10 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)).
11 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of New York v.
NLRB, 305 U.S. 197, 229 (1938)).
12 Id.; Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975).
13 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
14 Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citing Rhinehart v. Finch, 438 F.2d 920,
921 (9th Cir. 1971)).
15 Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).
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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.”16 Finally, the ALJ has a “special duty to fully and fairly develop
the record and to assure that the claimant’s interests are considered.”17 In particular, the
Ninth Circuit has found 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.18
However, this duty exists “even when the claimant is represented by counsel.”19
II. 	DETERMINING DISABILITY
The Social Security Act (“the Act”) provides for the payment of disability insurance
benefits (“DIB”) to individuals who have contributed to the Social Security program and
who suffer from a physical or mental disability.20 	In addition, Supplemental Security
Income (“SSI”) may be available to individuals who do not have insured status under the
Act but who are age 65 or older, blind, or disabled.21 	Disability is defined in the Act as
follows:
16 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotations and citations
omitted).
17 Smolen v. Chater, 80 F.3d 1273,1288 (9th Cir. 1996) (quoting Brown v. Heckler, 713 F.2d 441,
443 (9th Cir. 1983)), superseded on other grounds by 	20 C.F.R. § 416.929(c)(3) and
§ 404.1529(c)(3); see also Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014).
18 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001).
19 DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991) (quoting Brown, 713 F.2d at 443).
20 42 U.S.C. § 423(a).
21 42 U.S.C. § 1381a.
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[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.22
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.23
The Commissioner has established a five-step process for determining disability
within the meaning of the Act.24 A claimant bears the burden of proof at steps one through
four in order to make a prima facie showing of disability.25 	If a claimant establishes a
prima facie case, the burden of proof then shifts to the agency at step five.26 	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.”27 The steps, and the ALJ’s findings in this case, are as follows:
22 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
23 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
24 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
25 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).
26 Treichler, 775 F.3d at 1096 n.1; Tackett, 180 F.3d at 1098 (emphasis in original).
27 Tackett, 180 F.3d at 1101.
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Step 1. Determine whether the claimant is involved in “substantial gainful activity”
(“SGA”).28 The ALJ determined that Plaintiff had not engaged in SGA from January 17,
2017, the alleged onset date, through her date last insured of December 31, 2018 (the
“insured period”).29
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.30 The ALJ determined that Plaintiff had the following
severe impairments: 	cervical degenerative disc disease and osteoarthritis, status post
cervical fusion. The ALJ found that Plaintiff’s bilateral hand tingling/numbness was non-
severe. 	The ALJ considered Plaintiff’s headaches in connection with her cervical
impairment, but the ALJ found that Plaintiff did not have a medically determinable primary
headache impairment during the insured period. The ALJ also found that Plaintiff did not
have a medically determinable mental impairment prior to the date last insured.31
Step 3. Determine whether the impairment or combination of impairments meet(s)
or equal(s) the severity of any of the listed impairments found in 20 C.F.R. pt. 404,
subpt. P, app.1, precluding substantial gainful activity. 	If the impairment(s) is(are) the
28 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
29 A.R. 18.
30 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
31 A.R. 18–20.
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equivalent of 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.32 	The ALJ 	determined 	that 	Plaintiff 	did 	not 	have 	an 	impairment 	or
combination of impairments that met or medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.33
Residual Functional Capacity. Before proceeding to step four, a claimant’s residual
functional capacity (“RFC”) is assessed.34 	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.35 	The ALJ determined that Plaintiff had the residual
functional capacity to perform light work with the following limitations: 	she is limited to
occasional climbing of ramps or stairs; never climbing ladders, ropes, or scaffolds;
occasional 	balancing, 	stooping, 	and 	crawling; 	frequent 	kneeling 	and 	crouching;
occasional reaching at and above shoulder level with the bilateral extremities; frequent
handling and fingering with the left upper extremity; avoiding concentrated exposure to
non-weather-related extreme cold, heat, humidity, industrial-level vibration, and hazards;
and avoiding exposure to unprotected heights.36
32 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
33 A.R. 20.
34 20 C.F.R. § 416.945.
35 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
36 A.R. 20–21.
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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 her past relevant work, the claimant is deemed not to be disabled.37
Otherwise, the evaluation process moves to the fifth and final step.38 The ALJ determined
that 	Plaintiff 	was 	capable 	of 	performing 	her 	past 	relevant 	work 	as 	a 	project
manager/project director (DOT #189.117-030, sedentary, SVP 8) and risk and insurance
manager (DOT #186.117-066, sedentary, SVP 8).39
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.40 Although the ALJ determined that Plaintiff was capable of performing her past
relevant work, she proceeded to step five. The ALJ found that Plaintiff would have been
able to perform occupations such as office helper (DOT #239.567-010, light, SVP 2);
pricer/price marker (DOT #209.587-034, light, SVP 2); and tanning salon attendant (DOT
#359.567-014, light, SVP 2).41
37 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
38 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
39 A.R. 30–31.
40 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
41 A.R. 32.
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The ALJ concluded that Plaintiff was not disabled at any time from January 17,
2017, the alleged onset date, through December 31, 2018, the date last insured.42
III. 	PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff was 45 years old on December 31, 2018, the date last insured.43 At that
time, she was considered “a younger individual” (age 18–49) by the Social Security
Administration.44 	Plaintiff’s claim was denied initially on April 13, 2020, and upon
reconsideration on July 23, 2020.45 On June 14, 2021, she appeared with representation
and testified by video before ALJ Cecelia LaCara.46 	The ALJ issued an unfavorable
hearing decision dated July 7, 2021.47
On March 21, 2022, the Appeals Council vacated the ALJ’s decision and remanded
for further proceedings. The Council concluded that “improper evidence was relied upon
in 	formulating 	the 	decision 	and 	further 	evaluation 	of 	the 	medically 	determinable
impairments is required.” Specifically, the Council noted that the ALJ’s determination that
Plaintiff’s headaches were not a severe impairment was based on evidence that did not
relate to Plaintiff.48
42 A.R. 33.
43 A.R. 31, 382.
44 See 20 C.F.R. §§ 404.1563, 416.963.
45 A.R. 123, 140.
46 A.R. 84–102. 	The ALJ noted that the hearing was being held by video “due to community
measures to stop the spread of the virus COVID-19.” A.R. 79.
47 A.R. 144–54.
48 A.R. 163.
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On September 9, 2022, Plaintiff appeared with representation and testified again
before ALJ LaCara by video.49 	On October 11, 2022, the ALJ issued an unfavorable
ruling.50 	After the Appeals Council denied review on January 26, 2023, Plaintiff timely
appealed to this Court.51
IV. 	DISCUSSION
Plaintiff is represented by counsel in this appeal. 	Plaintiff alleges one basis for
remand: the ALJ failed to include all impairments supported by the record into the RFC.52
Specifically, 	Plaintiff 	asserts 	that 	the ALJ 	omitted 	limitations 	“related 	to 	Plaintiff’s
documented chronic headaches.”53 The Commissioner disagrees and urges the Court to
affirm. 	Specifically, the Commissioner asserts that the ALJ “reasonably discounted”
Plaintiff’s symptom allegations involving her headaches.54
A. 	The ALJ’s RFC
A claimant’s RFC measures an “individual’s maximum remaining ability to do
sustained work activities in an ordinary work setting on a regular and continuing basis. A
‘regular and continuing basis’ means 8 hours a day, for 5 days a week, or an equivalent
49 A.R. 50–68.
50 A.R. 15–33.
51 A.R. 1–5. Plaintiff filed her complaint on March 22, 2023. See Docket 1.
52 Docket 13 at 19–23.
53 Docket 13 at 19.
54 Docket 15 at 2.
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work schedule.”55 The ALJ must consider all relevant evidence in the record, including
“medical records, lay evidence, and the ‘effects of symptoms, including pain, that are
reasonably 	attributed 	to 	a 	medically 	determinable 	impairment.’”56 	“If 	an 	ALJ’s
hypothetical does not reflect all of the claimant’s limitations, then the expert’s testimony
has no evidentiary value to support a finding that the claimant can perform jobs in the
national economy.”57
Here, the ALJ determined Plaintiff had the RFC to perform light work with a range
of limitations. The RFC included upper extremity limitations directly related to Plaintiff’s
“ongoing symptoms of pain, arm tingling, and neck symptoms with upward reaching
activities.”58 	The RFC also included limitations for “ongoing pain and sensitivity” by
limiting extreme temperatures and humidity, industrial-type vibrations, and hazardous
conditions.59 However, the ALJ concluded that Plaintiff’s headaches were not medically
determinable as a “primary headache impairment” during the insured period.60 Instead,
55 SSR 96-8p, 1996 WL 374184, at *2. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219,
1224 (9th Cir. 2009) (“SSRs do not carry the ‘force of law,’ but they are binding on ALJs
nonetheless.”).
56 Robbins. v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006); see also SSR 96-8p, 1996 WL
374184, at *5, accord C.F.R. §§ 404.1545(a)(3), 416.945(a)(3).
57 Bray, 554 F.3d at 1228 (internal quotation and citation omitted).
58 A.R. 27.
59 A.R. 26.
60 Headaches that “occur independently and are not caused by another medical condition,” termed
“primary headaches,” are not a listed impairment. SSR 19-4p, 2019 WL 4169635, at *3, *7
(Aug. 26, 2019). Rather, the agency has identified listing 11.02, for epilepsy, as the most closely
analogous listed impairment for primary headache disorder and provides that, “[w]hile uncommon,
a person with a primary headache disorder may exhibit equivalent signs and limitations to those
detailed in listing 11.02 (paragraph B or D for dyscognitive seizures).” SSR 19-4p, 2019 WL
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the ALJ considered Plaintiff’s headaches as a symptom of Plaintiff’s cervical degenerative
disc disease and osteoarthritis, status post cervical fusion.61
1. 	Plaintiff’s subjective symptom testimony and reports
While Plaintiff asserts that the ALJ failed to include Plaintiff’s headache impairment
in the RFC, she does not explicitly state in her opening brief that the ALJ erred in the
evaluation of Plaintiff’s symptom testimony.62 	However, the Commissioner’s brief and
Plaintiff’s reply brief discuss the ALJ’s treatment of Plaintiff’s symptom complaints.63
Therefore, the Court addresses the ALJ’s evaluation of Plaintiff’s symptom testimony as
follows:
Plaintiff testified with representation at two hearings before the ALJ. 	At both
hearings, Plaintiff testified that her pain was constant.64 At her first hearing, she testified
that “it takes just one big pop, one big crack and I get . . . pain and headaches and
numbing and tingling . . . .”65 At Plaintiff’s second hearing, she testified that she “started
getting headaches constantly” after her neck surgery in October 2016.66 	She testified
4169635, at *7. 	Plaintiff does not argue that she suffered from primary headaches. 	See
Docket 13.
61 A.R. 18–19.
62 Docket 13 at 19–23.
63 See Dockets 15, 16.
64 A.R. 51 (“100% full body pain 100% of the time”), 97 (“[T]he pain is 100% constant”).
65 A.R. 90.
66 A.R. 51.
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that in 2018, her headaches rose to a migraine level three times or more per week.67
Plaintiff indicated that when she lifted her arms to chest level, it would trigger neck pain,
made her headache worse, and caused pain in her shoulder blades.68
In March 2020, Plaintiff completed a headache questionnaire. She described her
headaches as “mild,” occurring “90–95% of the time,” and mostly occurring on the left
side. She reported that her headache increased and was accompanied by shooting pain
when “triggered by a neck pop.” 	She indicated that after a “flare up,” her “significantly
more painful” headaches could last from two hours to three days.69
In a function report, also from March 2020, Plaintiff reported that she had difficulties
with pull-over sweatshirts on bad days, her sleep was adversely affected by pain and
tingling, she prepared only cold or microwaved food, and tried to do housework daily, but
she moved “slow and strategically.” 	She stated that she struggled with all movements
and her ability to hear was affected by “headache/facenumbing.”70
2. 	Legal standards
An ALJ’s assessment of a claimant’s symptoms has two steps.71 	First, the ALJ
determines whether the claimant has presented “objective medical evidence of an
underlying impairment which could reasonably be expected to produce the pain or other
67 A.R. 62.
68 A.R. 54.
69 A.R. 523.
70 A.R. 532–39.
71 Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017), superseded on other grounds by
§404.1502(a).
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symptoms alleged.”72 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. Nor
must a claimant produce objective medical evidence of the pain or fatigue itself, or the
severity thereof.”73
Second, if the claimant has satisfied step one and the ALJ has determined that the
claimant is not malingering, the ALJ must provide “specific, clear and convincing reasons”
for rejecting the claimant’s testimony regarding the severity of the claimant’s symptoms.
This standard is “the most demanding required in Social Security cases.”74 Yet, this does
not mean an ALJ is required to “simply accept a claimant’s subjective symptom testimony
notwithstanding inconsistencies between that testimony and the other objective medical
evidence in the record, allowing a claimant’s subjective evidence to effectively trump all
other evidence in a case.”75
In this case, the ALJ determined that Plaintiff’s impairments could reasonably be
expected to cause some of the alleged symptoms that Plaintiff described. The ALJ then
found that Plaintiff’s statements concerning the intensity, persistence, and limiting effects
72 Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014)).
73 Garrison, 759 F.3d at 1014–15 (internal citations and quotations omitted).
74 Trevizo, 871 F.3d at 678.
75 Smartt v. Kijakazi, 53 F. 4th 489, 499 (9th Cir. 2022).
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of these symptoms were inconsistent with the medical evidence and other evidence in
the record.76
Because the ALJ found Plaintiff’s underlying impairments severe and cited no
evidence of malingering, she was required to provide specific, clear, and convincing
reasons for rejecting Plaintiff’s subjective symptom allegations. 	The ALJ provided the
following reasons specifically relating to headaches: 	(1) the medical record showed
improvement of headache symptoms; (2) medical provider Natasha Sherrill’s opinion
regarding the effects of headaches on Plaintiff’s ability to work was not supported by
objective signs or past findings; and (3) Plaintiff’s activities suggest less limitation than
Plaintiff alleges.77
3. 	Improvement with treatment
“[E]vidence of medical treatment successfully relieving symptoms can undermine
a claim of disability.”78 At the same time, symptom improvement must be evaluated in the
context of the “overall diagnostic picture.”79 	In this case, the ALJ acknowledged that
medical records after November 2017 showed Plaintiff “did continue to report [a]
temporary increase in symptoms including headaches . . .,” but the ALJ concluded that
subsequent medical records showed Plaintiff’s symptoms improved. The ALJ also noted
that Plaintiff “wanted to continue physical therapy, massage therapy, chiropractic care, as
76 A.R. 23.
77 A.R. 23–30.
78 Wellington v. Berryhill, 878 F.3d 867, 876 (9th Cir. 2017).
79 Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001).
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well as work a reduced schedule, instead of using prescribed medications, and she
continued to show improvement.”80 Specifically, the ALJ pointed to medical records from
November 17 through approximately October 2018, in which Plaintiff generally reported
a slow improvement of symptoms, a reduction in medications, and a toleration for
increased activities, including working 15 to 20 hours per week. 	The ALJ also noted
objective physical findings during the same period that were inconsistent with Plaintiff’s
symptom complaints and reports of adequate management of pain with medication.81
During the disability period, between January 17, 2017 and December 31, 2018,
Plaintiff 	reported 	infrequent 	headaches, 	ranging 	from 	slight 	to 	moderate, 	to 	her
providers.82 Moreover, her subjective reports to medical providers of slow improvement
during that same time period contradict Plaintiff’s hearing testimony that she experienced
“constant headaches” and “100% full body pain 100% of the time” after her October 2016
neck surgery.83 And, although Plaintiff’s headache symptoms appear to have worsened
after the relevant disability period, they were still primarily treated in connection with flares
80 A.R. 24.
81 A.R. 24–25.
82 E.g., A.R. 1167 (1/16/17 slight infrequent), 2251 (3/20/18 slight infrequent), 2258 (5/31/18
moderate infrequent), 2262 (8/8/18 moderate infrequent), 2316 (9/11/18 moderate), 2359
(5/31/18 moderate infrequent), 2383 (3/20/18 slight infrequent), 2437 (11/27/17 headache all
week), 2446 (11/16/17 slight infrequent). The Court notes that the administrative record contains
multiple duplicates of certain medical records. To the extent possible, the Court cites to the first
medical record in the administrative record submitted to the Court.
83 A.R. 51; e.g., A.R. 1098–99 (“I am slowly improving every week, and I’m hit-or-miss on a daily
basis), 2110, 2129, 2131, 2132, 2138, 2141, 2144, 2147, 2256 (reported improvement after
massage therapy).
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in her cervical pain84 and were reportedly managed with medication.85 Only years later
were Plaintiff’s headaches diagnosed as migraines.86
Because “[t]he standard isn’t whether [the] court is convinced, but instead whether
the ALJ’s rationale is clear enough that it has the power to convince,” the ALJ’s examples
of Plaintiff’s general improvement in headache symptoms provided a sufficiently specific,
clear, and convincing reason for discounting Plaintiff’s subjective complaints regarding
her headaches during the relevant disability period.87
84 See e.g., A.R. 2228 (2/5/20 reported flare of cervical pain with headache and radiating left arm
pain), 2232 (2/12/20 reported flare of cervical pain with headache and radiating left arm pain),
2235 (2/19/20 reported flare of cervical pain with headache and radiating left arm pain), 2238
(2/26/20 reported flare of cervical pain with headache and radiating left arm pain), 2240 (3/4/20
reported flare of cervical pain with headache and radiating left arm pain), 	2451 (9/6/19), 2453
(9/18/19 Dr. Scott-Calor, D.O. noted “as her neck pain intermittently radiates up into her head
causing headaches with associated symptoms I do suggest that she may also benefit from C2–3
medial branch blocks with potentially subsequent radiofrequency ablation to address the upper
cervical pain and headache pain.”), 2457 (3/30/21), 2480 (Dr. Hansen noted Plaintiff’s reports of
left face numbness and headaches after attempting 20 hours of work “in recent weeks”), 2597
(headaches and left arm pain with cervical flare up), 2608 (3/11/20 reported headache with
cervical flare up), 2640 (4/9/21), 2643 (3/30/21), 2692–93 (5/5/21 mild left-sided), 2702 (6/2/21
constant headache), 2731 (10/7/21 headache following “pop” sensation in neck), 2743 (10/21/21
severe infrequent headaches), 2783 (3/10/22), 2794 (3/24/22), 2796 (3/14/22), 2828 (5/18/22
daily headaches), 2834 (4/6/22), 2842–44 (3/21/22), 2846–47 (3/7/22), 2851–54 (2/15/22), 2856–
60 (2/1/22), 2911 (8/30/22 APRN Sherrill letter re cervicogenic headaches). The Court notes that
certain page numbers in the administrative record were obscured in the copying process. 	The
Court attempted to count page numbers, but there may be unavoidable inaccuracies.
85 See e.g., A.R. 2832, 2844, 2849, 2854.
86 See e.g., A.R. 2773 (2/8/22 Sumatriptan for migraine), 2779 (3/24/22 prescribed Sumatriptan
for migraine headaches), 2781 (3/17/22 Sumatriptan), 2784 (3/10/22 Sumatriptan), 2834 (4/6/22
Sumatriptan)2862–66 (1/5/22 significant headache for two days with diagnosis intractable
migraine without auro and without status migrainosus), 2869 (11/23/21 with diagnosis intractable
migraine without auro and without status migrainosus), 2876 (11/9/21 mild leftsided headache),
2903 (6/28/22 headache comes from her neck), 2914–16 (8/30/22 APRN Sherrill headache
questionnaire from counsel for Plaintiff).
87 Smartt, 53 F.4th at 499–500.
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4. 	Medical opinion of Natasha Sherrill, APRN
Plaintiff 	alleges 	that 	APRN 	Sherrill’s 	opinion 	demonstrates 	that 	Plaintiff’s
headaches did not improve, but instead, she “continued to have severe headaches on a
regular basis” without relief from medication.88 Because Plaintiff filed her DIB application
on or about July 26, 2019, the new regulations are used to evaluate her medical source
opinions.
a. 	Legal Standard
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.89 The new regulations define a medical opinion
as follows:
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
88 Docket 13 at 22.
89 Compare 20 C.F.R. § 404.1527 with 20 C.F.R. § 404.1513(a)(2).
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(iv) 	Your ability to adapt to environmental conditions, such as
temperature or fumes.90
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.91 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.92
Supportability and consistency are considered the most important factors for
evaluating persuasiveness.93 Supportability and consistency are explained as follows in
the regulations:
(v) 	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.
(vi) 	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.94
90 20 C.F.R. § 404.1513(a)(2).
91 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).
92 20 C.F.R. §§ 404.1520c(c), 416.920c(c).
93 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).
94 20 C.F.R. §§ 404.1520c(c)(1)–(2), 416.920c(c)(1)–(2).
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Generally, these are the only two factors the ALJ is required to address in her decision.95
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.96 In the Ninth Circuit, the new regulatory framework no longer
requires ALJs to provide “specific and legitimate” or “clear and convincing” reasons for
rejecting a treating or examining medical source’s opinion.97
b. 	The ALJ’s Evaluation
Here, 	the 	ALJ 	discounted 	the 	medical 	source 	opinion, 	work 	restrictions
questionnaire, and headache questionnaire completed by Natasha Sherrill, APRN.98 In
her opinion letter of August 30, 2022, APRN Sherrill stated that she had treated Plaintiff
since May 2, 2019. She noted Plaintiff’s reports of constant headaches and “worsening
migraines with facial paralysis.” APRN Sherrill stated that she had prescribed medication,
referred Plaintiff to specialists, and ordered additional imaging, but Plaintiff’s symptoms
had not significantly improved. 	She opined that Plaintiff’s chronic conditions would not
improve and that Plaintiff would not be able to return to work in any capacity.99
95 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.”).
96 20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3) (for claims filed on or after March 27, 2017).
97 Woods v. Kijakazi, 32 F.4th 785 (9th Cir. 2022).
98 A.R. 2911–16.
99 A.R. 2911.
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The ALJ found APRN Sherrill’s overhead and shoulder level reaching opinions
consistent with and supported by Plaintiff’s reported symptoms and the record. However,
the ALJ found that APRN Sherrill’s exertion limitation, work hours limitation, and
absenteeism 	opinions were 	unsupported and 	inconsistent 	for 	the 	following 	stated
reasons: 	(1) APRN Sherrill rendered her opinion more than three years after Plaintiff’s
date last insured; (2) APRN Sherrill did not “provide objective signs or past findings to
support limitations such as [the] inability to sit, stand, or walk through an eight-hour day,
[the] need for perpetual leg elevation, or [Plaintiff’s] inability to lift or carry any weight
during the relevant period or beyond;” and (3) APRN Sherrill’s limitations are attributed to
Plaintiff’s subjective reports of pain. 	The ALJ concluded that the medical and other
evidence was not consistent with APRN Sherrill’s more severe limitations regarding
Plaintiff’s ability to work during the period at issue.100
The medical record does not support APRN Sherrill’s opinion that Plaintiff’s
headaches were debilitating during the disability period.101 	As noted above, Plaintiff’s
headache complaints were primarily symptoms associated with her severe cervical
impairment, which the ALJ addressed at steps two and four of the sequential evaluation.
Moreover, the records show that Plaintiff’s migraine headaches, diagnosed after the
disability period, were reportedly controlled with Sumatriptan.102
100 A.R. 28.
101 A.R. 2916.
102 See, supra, n.84–85; Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir.
2006) (“Impairments that can be controlled effectively with medication are not disabling for the
purpose of determining eligibility for SSI benefits.”). Sumatriptan is used to treat migraines. See
https://www.webmd.com/drugs/2/drug-7741/sumatriptan-oral/details.
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In sum, the ALJ’s discounting of APRN Sherrill’s opinion regarding the effects of
headaches on Plaintiff’s ability to work was a sufficiently specific, clear, and convincing
reason for discounting Plaintiff’s symptom complaints.
5. 	Plaintiff’s daily activities
The ALJ also discounted Plaintiff’s symptom testimony based on her activities. As
examples, the ALJ specifically mentioned Plaintiff working on part-time contracts, walking
regularly, and working up to some jogging. 	The ALJ also noted that Plaintiff’s reported
dog-walking and household activities showed Plaintiff was less limited than she claimed
to be.103
An ALJ may discount a claimant’s credibility when daily activities demonstrate an
inconsistency between what the claimant can do and the degree of disability alleged.104
Daily activities are “grounds for an adverse credibility finding if a claimant is able to spend
a substantial part of [her] day engaged in pursuits involving the performance of physical
functions that are transferable to a work setting.”105 Here, the ALJ cited to instances in
the record showing Plaintiff engaging in activities that were not consistent with the
severity of the symptoms she alleged.106 Moreover, examining physician Jared Kirkham,
103 A.R. 30.
104 Burrell v. Colvin, 775 F.3d 1133, 1137–38 (9th Cir. 2014) (“Inconsistencies between a claimant’s
testimony and the claimant’s reported activities provide a valid reason for an adverse credibility
determination”).
105 Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014).
106 A.R. 30; 1627, 1736, 1828–29. See Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993) (“If the
ALJ wished to reject Dodrill’s pain testimony, he was required to point to specific facts in the record
which demonstrate that Dodrill is in less pain than she claims”).
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M.D., recommended that Plaintiff return to regular exercise and to work to alleviate her
chronic pain.107
Plaintiff’s 	daily 	activities 	appear 	to 	be 	more 	than 	minimal 	and 	could 	be
transferable to a work setting.108 However, even if the ALJ failed to provide a clear and
convincing reason supported by substantial evidence for rejecting Plaintiff’s subjective
testimony regarding her activities of daily living, the ALJ provided other sufficiently
specific, clear and convincing reasons, as set forth above.109
We are confined to reviewing the reasons the ALJ asserts.110 In this case, the ALJ
provided several clear and convincing reasons supported by substantial evidence for
discrediting Plaintiff’s testimony and properly linked the specific evidence to the testimony
she discredited. In sum, the ALJ did not err by discounting Plaintiff’s subjective symptom
complaints regarding her headaches during the period between January 17, 2017, and
December 31, 2018.
107 A.R. 1745.
108 See Ghanim, 763 F.3d at 1165; Gallant, 753 F.2d at 1453 (ordering award of benefits for leg
and back pain despite claimant’s daily activities of cooking meals and washing dishes).
109 Lapuzz v. Berryhill, 740 Fed. Appx. 596, 597 (9th Cir. 2018) (“Any error in relying on additional
reasons was harmless because the ALJ properly provided several clear and convincing reasons
to discredit [Plaintiff]’s testimony.”) A court or litigant may cite to unpublished Ninth Circuit opinions
issued on or after January 1, 2007. U.S. Ct. App. 9th Cir. R. 36-3(b); Fed. R. App. P. 32.1(a). See
also Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008).
110 Brown-Hunter, 806 F.3d at 494 (“As we have long held, we are constrained to review the
reasons the ALJ asserts.”) (quotations, citations, and emphasis omitted).
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B. 	Vocational Expert Hypothetical
“[I]n hypotheticals posed to a vocational expert, the ALJ must only include those
limitations supported by substantial evidence.”111 	Here, the ALJ found that Plaintiff’s
cervical degenerative disc disease and osteoarthritis, status post cervical fusion were
severe impairments. 	The ALJ then analyzed Plaintiff’s headaches as a pain symptom
associated with the cervical impairment, but the ALJ found there was “no indication of
treatment for a primary headache disorder or migraines during [the disability period.]”112
Because the RFC included all of Plaintiff’s limitations supported by substantial evidence,
including headaches as a symptom of her cervical impairment, the hypotheticals posed
to the vocational expert were legally adequate.
V. 	ORDER
The Court, having carefully reviewed the administrative record, finds that the ALJ’s
determinations 	are 	free 	from 	legal 	error 	and 	supported 	by 	substantial 	evidence.
Accordingly, IT IS ORDERED that Plaintiff’s request for relief at Docket 13 is DENIED and
the Commissioner’s final decision is AFFIRMED.
DATED this 2nd day of January, 2024, at Anchorage, Alaska.
/s/ Joshua M. Kindred
JOSHUA M. KINDRED
UNITED STATES DISTRICT JUDGE
111 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006).
112 A.R. 18.
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