Gilbert v. Saul

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
DEBRA G.,1
Plaintiff,
vs.
ANDREW SAUL,
Commissioner of Social Security,
Defendant. Case No. 3:19-cv-00026-SLG
DECISION AND ORDER
On or about June 3, 2015, Plaintiff Debra G. filed an application for Disability
Insurance Benefits (“DIB”) under Title II of the Social Security Act (“the Act”),2 alleging
disability beginning May 29, 2011.3 Ms. G. has exhausted her administrative remedies
and filed a Complaint seeking relief from this Court.4 Ms. G.’s opening brief asks the Court
to reverse and remand the agency decision.5 The Commissioner filed an Answer and a
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 Court uses the terms “disability benefits” and “DIB” throughout the Decision and
Order.
3 Administrative Record (“A.R.”) 268. The ALJ decision cites May 29, 2015 as the
application date for Ms. G.’s DIB claim. A.R. 68.
4 Docket 1 (Debra G.’s Compl.). Ms. G. amended her Complaint on April 12, 2019. Docket
9.
5 Docket 20 (Debra G.’s Br.).
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 1 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 2 of 39
brief in opposition to Ms. G.’s opening brief.6 Ms. G. filed a reply brief on August 22, 2019.7
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.8 For the reasons set forth below, Ms. G.’s request for relief will be denied.
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.9
“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.”10 Such evidence must be “more than a mere scintilla,” but may be “less than
a preponderance.”11 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.12 If the evidence is susceptible to
6 Docket 15 (Answer); Docket 21 (Defendant’s Br.).
7 Docket 22 (Reply).
8 42 U.S.C. § 405(g).
9 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)).
10 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)).
11 Perales, 402 U.S. at 401; Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir.
1975) (per curiam).
12 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 2 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 3 of 39
more than one rational interpretation, the ALJ’s conclusion must be upheld.13 A reviewing
court may only consider the reasons provided by the ALJ in the disability determination
and “may not affirm the ALJ on a ground upon which she did not rely.”14 An ALJ’s decision
will not be reversed if it is based on “harmless error,” meaning that the error “is
inconsequential to the ultimate nondisability determination . . . or that, despite the legal
error, the agency’s path may reasonably be discerned, even if the agency explains its
decision with less than ideal clarity.”15 Finally, the ALJ has a “special duty to fully and fairly
develop the record and to assure that the claimant’s interests are considered.”16 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.17
II. DETERMINING DISABILITY
The Act provides for the payment of disability insurance to individuals who have
contributed to the Social Security program and who suffer from a physical or mental
13 Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citing Rhinehart v. Finch, 438
F.2d 920, 921 (9th Cir. 1971)).
14 Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).
15 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and
citations omitted).
16 Smolen v. Chater, 80 F.3d 1273,1288 (9th Cir. 1996) (superseded in part by statute on other
grounds, § 404.1529) (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).
17 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001).
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 3 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 4 of 39
disability.18 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.19 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.20
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.21
The Commissioner has established a five-step process for determining disability
within the meaning of the Act.22 A claimant bears the burden of proof at steps one through
four in order to make a prima facie showing of disability.23 If a claimant establishes a prima
18 42 U.S.C. § 423(a).
19 42 U.S.C. § 1381a.
20 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
21 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
22 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
23 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
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 4 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 5 of 39
facie case, the burden of proof then shifts to the agency at step five.24 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.”25
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 Ms. G. did not engage in substantial gainful activity during the
period from her alleged onset date of May 29, 2011 through her date last insured of
December 31, 2015.26
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. Through the date last insured, the ALJ determined
that Ms. G. had the following severe impairment: Meniere’s disease. The ALJ determined
that Ms. G.’s chronic back pain, history of migraines and trigeminal neuralgia, obesity, mild
cognitive impairment, and depression and anxiety were non-severe impairments.27
F.3d 1094, 1098 (9th Cir. 1999).
24 Treichler, 775 F.3d at 1096 n.1; Tackett, 180 F.3d at 1098 (emphasis in original).
25 Tackett, 180 F.3d at 1101.
26 A.R. 70.
27 A.R. 70–71.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 5 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 6 of 39
Step 3. Determine whether the impairment or combination of impairments meets
or equals the severity of any of the listed impairments found in 20 C.F.R. pt. 404, subpt. P,
app.1, precluding substantial gainful activity. If the impairment(s) is(are) the 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. Through the date last insured, the ALJ determined that Ms. G. did not have an
impairment or combination of impairments that met or medically equaled the severity of a
listed impairment.28
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 Ms. G. had the RFC to perform medium work except that she was
additionally limited to standing and walking for four hours and sitting for up to six hours in
an eight hour day; occasionally climbing ramps or stairs and never climbing ladders, ropes
or scaffolds; occasionally balancing, stooping, kneeling, crouching, and crawling; avoiding
moderate exposure to excessive noise; avoiding all exposure to unprotected heights; and
avoiding moderate exposure to hazardous machinery.30
28 A.R. 74.
29 20 C.F.R. § 404.1520(a)(4).
30 A.R. 74.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 6 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 7 of 39
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. Through the date last
insured, the ALJ found that Ms. G. was capable of performing past relevant work as a
service dispatcher and assembly worker.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. Although the ALJ determined that Ms. G. was capable of past relevant work,
she also determined that in the alternative, there were other jobs existing in the national
economy that Ms. G. was also able to perform, including janitor, cleaner II, and laundry
worker I.32
The ALJ concluded that Ms. G. was not disabled at any time from May 29, 2011,
the alleged onset date, through December 31, 2015, the date last insured.33
III. PROCEDURAL AND FACTUAL BACKGROUND
31 A.R. 78.
32 A.R. 79–80.
33 A.R. 80.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 7 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 8 of 39
Ms. G. was born in 1970, she is 49 years old.34 She reported last working in 2010
at Alaska Housewares “putting fish cans together.”35 Ms. G. reported working as a night
dispatcher, cleaner, and office assistant for a plumbing and heating company and as a
newspaper deliverer in the past. She also reported doing “secretarial work” at another
plumbing and heating company and at an automated laundry and supply company.36
On December 30, 2015, the Social Security Administration (“SSA”) determined that
Ms. G. was not disabled under the applicable rules.37 On January 13, 2016, Ms. G.
requested a hearing before an ALJ.38 On July 21, 2017, Ms. G. appeared and testified
without a representative at a hearing held before ALJ Cecilia LaCara.39 On November 14,
2017, the ALJ issued an unfavorable ruling.40 On December 11, 2018, the Appeals Council
denied Ms. G.’s request for review.41 Ms. G. appealed to this Court on January 31, 2019.42
Medical Records
34 A.R. 268.
35 A.R. 119, 277.
36 A.R. 116–19, 300–303.
37 A.R. 134–46.
38 A.R. 160.
39 A.R. 115–27.
40 A.R. 65–80.
41 A.R. 1–5.
42 Docket 1. See supra n. 5. Ms. G. amended her Complaint on April 12, 2019. Docket
9.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 8 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 9 of 39
Although Ms. G.’s medical records date back to 2004, the Court focuses on the
relevant medical records between the alleged onset date of May 29, 2011 and the date
last insured of December 31, 2015.43 However, the following are relevant records before
May 29, 2011:
On September 9, 2008, Ms. G. had an MRI of her cervical spine. The MRI showed
a right paracentral broad-based C5-6 disc bulges producing mild central canal and right
neural foraminal stenosis. On the same date, Ms. G. had an MRI of her brain. The MRI
showed “several tiny nonspecific foci of flair hyperintensity” that “most likely represent[ed]
minimal early microangiopathy/chronic small vessel ischemia.” The reading physician
noted that “the differential diagnosis would include prior trauma and [the] possibility [of]
multiple sclerosis.”44
On January 27, 2009, Ms. G. saw Scott DeBerard, D.O., at Hillside Family
Medicine. She reported having a “recurrence of vertigo” and that she had been having
symptoms “for several months now.” She also reported an unremarkable MRI and a
neurological consultation “which failed to reveal significant pathology, symptoms
attributable to [benign paroxysmal positional vertigo].” Dr. DeBerard prescribed Vicodin
for pain and Phenergan for nausea.45
43 There are multiple duplicate treatment notes in the Court’s record. To the extent
possible, the Court cites the first treatment note to appear in the medical record.
Additionally, the Court’s citations to the record are to the corrected Administrative Record
at Docket 19.
44 A.R. 529–30.
45 A.R. 525.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 9 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 10 of 39
On January 29, 2009, Dr. DeBerard wrote a letter stating that Ms. G. “has had nearly
disabling vertigo for about 3 months” and that she had “seen a neurologist, had a head
MRI, and had normal labs done recently.”46
On February 17, 2009, Ms. G. initiated care with David Beal, M.D. She reported
“disequilibrium, dizziness, imbalance, light-headedness, vertigo, tinnitus, headache,
[benign paroxysmal positional vertigo], nausea, vomiting, blurred vision temporary with
movement, panic attack, anxiety and pain in the ear right and left” that began in September
2008.47 She reported that “the problem seems to be increasing.” She also reported that
she could do household activities “like cooking and cleaning”; was able to drive a car; and
could attend to her own needs. On examination, Dr. Beal observed that “[o]n headshake
nystagmus was not seen but the patient felt bad with head motion vertical and rotatory
nystagmus noted when opening eyes horizontal.” He noted a normal neurological exam
with no tremor; 5/5 muscle strength in the lower and upper extremities; and a normal gait.
Dr. Beal diagnosed Ms. G. with anxiety; headache; nausea with vomiting; laryngitis; larynx
diseases; and dizziness/vertigo.48
On March 3, 2009, Ms. G. followed up with Dr. Beal to review balance tests. Dr.
Beal diagnosed Ms. G. with cochleovestibular Meniere’s disease and neuronitis.49
46 A.R. 527.
47 Ms. G. reported that eight years prior she had had “three severe episodes of vertigo
without diagnosis.” A.R. 422.
48 A.R. 422–24.
49 A.R. 421.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 10 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 11 of 39
The following are the more relevant records after the May 29, 2011 alleged onset
date:
On June 24, 2011, Ms. G. followed up with Dr. Beal. She reported vertigo attacks
and that she “was let go from her job because of being to[o] forgetful as an accounting
made a computer problem.” On examination, Dr. Beal observed that Ms. G. was in no
apparent distress with a normal examination of ears, nose, mouth, and throat. Dr. Beal
assessed Ms. G. with active cochleovestibular Meniere’s disease.50
On July 12, 2011, Ms. G. saw Dr. Beal. She reported experiencing episodic
dizziness and pressure/fullness bilaterally in the ears, but more noticeable in the left ear.
She also reported consistent ringing and sometimes buzzing. Dr. Beal assessed her with
bilateral endolymphatic hydrops. Dr. Beal noted that Ms. G.’s audiogram test showed
slight hearing loss in each ear at certain frequencies but “normal for the speech
frequencies.”51
On May 24, 2013, Ms. G. followed up with Dr. Beal. She reported dizziness,
difficulty ambulating, ear fullness, ear pain, headache, nausea, otalgia, and loss of
balance. Dr. Beal noted that Ms. G.’s left ear Meniere’s disease was “not being controlled
with diuretics, K+ replacement and a good low salt diet.” Dr. Beal also noted that Ms. G.
did not respond to steroid injections in the ears and had “trigeminal neuralgia with no
response except with [V]icodan.” On physical examination, Dr. Beal observed that Ms. G.
50 A.R. 396–97.
51 A.R. 395, 432–36.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 11 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 12 of 39
had a BMI of 31.95 kg/m2 and was tearful. He diagnosed Ms. G. with active
cochleovestibular Meniere’s disease and trigeminal neuralgia.52
On July 16, 2013, Ms. G. followed up with Dr. Beal. She reported tinnitus,
pressure/fullness, and pain in both ears. She reported that the Meniere’s symptoms
caused her hearing to “shut[ ] down.” On examination, Dr. Beal noted normal hearing in
the right ear with slight loss at 250 Hz and 500 Hz and mild loss at 8000 Hz and slight loss
throughout all frequencies in the left ear. He noted that the electrocochleography test
showed an “impedance level [ ] within recordable limits.” Dr. Beal also noted that Ms. G.
was “scheduled for left ear endolymphatic shunt surgery next month.”53
On August 21, 2013, Ms. G. underwent a left ear endolymphatic sac decompression
with shunt placement.54
On August 29, 2013, Ms. G. saw Dr. Beal. On physical examination, Dr. Beal
observed a positive Rinne test to the left and an equal Weber test.55
On September 17, 2013, Ms. G. followed up with Dr. Beal. She reported “doing a
lot better” and that she had “some vertigo attacks but they lasted less long.” Ms. G. also
reported hearing loss in the left ear, but she felt “improved over her pre-surgery status.”
52 A.R. 393–94.
53 A.R. 426–31.
54 A.R. 386–88.
55 A.R. 383.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 12 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 13 of 39
On examination, Dr. Beal observed a normal external auditory canal and normal otoscopic
exam. Dr. Beal prescribed 90 tablets of 7.5/300 mg of Vicodin for 40 days.56
On October 4, 2013, Ms. G. initiated care with Irina Grimberg, M.D., at Primary Care
Associates. Ms. G. reported that she was applying for disability “based on severe
dizziness from Meniere disease as well as C-spine DDD and L-spine DDD.” She reported
becoming “agoraphobic/recluse due to these ailments.” She also reported she was on
“long-term Vicodin for back pain and long-term Valium for dizziness associated with
Meniere.” On physical examination, Dr. Grimberg observed a normal eye, ear, nose, and
oropharynx exam; coarse breath “characteristic for a lifelong smoker”; a normal gait and
station; and no apparent agitation or depression. Ms. G.’s recorded weight was 206
pounds.57
On December 18, 2013, Ms. G. saw Dr. Beal. She reported ear pain, hearing loss,
dizziness, and nausea. She also reported that the nausea had “gone down a great deal
and ther[e] is not extended vertigo and she is much better since the operation.” She
reported that her pain was sharp and occurred daily, but her symptoms were “mild and
improving.” She reported less fatigue and that she was “getting things done around the
house.” On physical examination, Dr. Beal observed that Ms. G. was well-groomed and
happy with normal ENMT and head and neck examinations.58
56 A.R. 382.
57 A.R. 378.
58 A.R. 532.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 13 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 14 of 39
On January 2, 2014, Ms. G. followed up with Dr. Grimberg. She reported a gradual
weight gain and a “dry and nagging” cough. On physical examination, Dr. Grimberg
observed a weight of 206 pounds; normal eye, nose, and oropharynx exams; and a normal
FEV1/FVC ratio. Dr. Grimberg adjusted and refilled Ms. G.’s prescriptions for pain
management, trigeminal neuralgia, exogenous obesity, and laryngopharyngeal reflux.59
On November 19, 2014, Dr. Beal wrote a letter on Ms. G.’s behalf. He noted that
he saw Ms. G. “for care and treatment of chronic dizziness issues that cause symptoms
of nausea and vomiting.” He opined that “[d]ue to these symptoms it is imperative that
while flying she sits next to her husband as he acts as her caregiver.”60
On February 27, 2015, Ms. G. initiated care with Peter Montesano, M.D., at Medical
Park Family Care. She reported anxiety and depression. On physical examination, Dr.
Montesano observed that Ms. G. was “healthy-appearing” with a weight of 205 pounds
and BMI of 32.1. He observed a “[s]lightly depressed mood and flattened [a]ffect”; a
normal gait and station; and grossly normal coordination and cerebellum. He assessed
Ms. G. with depressive disorder; anxiety; being overweight; and Meniere’s disease. Dr.
Montesano referred Ms. G. to Counseling Solutions of Alaska and refilled her Effexor
medication for a history of depression and anxiety. He referred Ms. G. to Creed
Mamikunian, M.D., for dizziness.61
59 A.R. 377.
60 A.R. 621.
61 A.R. 704–07.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 14 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 15 of 39
On or about March 13, 2015, Ms. G. saw Creed Mamikunian, M.D. He wrote a
letter to Dr. Montesano regarding Ms. G.’s reported bilateral Meniere’s disease. Ms. G.
reported experiencing “brief episodes of dizziness which can occur 10–20 times per week
but only last for one to two minutes.” Dr. Mamikunian noted that “[e]very time she gets
one of these episodes, she takes Valium 10mg which seems to make her better.” Dr.
Mamikunian also noted that Ms. G.’s recent audiogram from July 16, 2013 “shows that she
only has a slight sensorineural hearing loss in the low frequencies of her right ear” and “a
slight conductive hearing loss in the mid-frequencies of her left ear but overall, her
audiogram was really very good and was not suggestive of somebody who has had
Meniere’s disease for many years.” He commented that Ms. G. had “a history of bilateral
Meniere’s disease but her audiogram belies this fact” and that Ms. G.’s symptoms were
“extremely unusual and atypical of someone with Meniere’s disease.” Dr. Mamikunian
reported that Ms. G. “seem[ed] to think that her symptoms improved tremendously after
Dr. Beals’s endolymphatic sac decompression.”62
On August 14, 2015, Ms. G. initiated care with Mark Lorenz, M.D., at ACENT. She
reported having Meniere’s disease. She reported that after left ear shunt placement, she
had “episodes daily but only last[ing] a few seconds to a few minutes.” She reported head
spinning, nausea, and vomiting. She reported taking Valium for her “sense of imbalance”
and Effexor. On physical examination, Dr. Lorenz observed “some fairly significant chronic
imbalance” and signs of left vestibular paresis. He observed a normal Hallpikes; a broad-
62 A.R. 709.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 15 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 16 of 39
based gait, unable to do heel-toe; a 90 degree turn left on Fukuda at 15 steps; and “post
headshaking right nystagmus.” Dr. Lorenz opined that Valium had “substantially delayed
[Ms. G.’s] compensation” and suggested Ms. G. be evaluated for physical therapy.63
On November 4, 2015, Ms. G. had an x-ray of the lumbar spine. The x-ray showed
mild degenerative changes at L4-L5 and L5-S1.64
On November 9, 2015, Ms. G. saw Stanford Downs, M.D., at Neurological
Consultants of Alaska. Ms. G. reported having three episodes of Meniere’s in 2001 that
returned in 2008 and continued since then. She reported that after Dr. Beal placed a shunt
in the left ear in 2013, “things improved.” She reported “the vertigo attacks currently are
less violent, but they still occur three to five times per day.” Ms. G. reported low back pain
she had been managing with Vicodin, but that she was not currently taking Vicodin. She
also reported neck pain, photophobia, and headaches “accompanied by vomiting and
triggered by light, stress, and a lot of people talking to her all at once.” On physical
examination, Dr. Downs observed that Ms. G. was awake, alert, and oriented. He noted
that on a “Mini-Mental Status Examination,” Ms. G. scored 29/30. He observed that Ms.
G. “does appear to be photophobic and wears sunglasses except when asked to take them
off for portions of the examination when we have to see her eyes.” Dr. Downs observed
that Ms. G. regarded all visual fields; had sharp discs; had pupils equally round and
reactive to light with full range and conjugate extraocular movements; had 5/5 motor
63 A.R. 735–37.
64 A.R. 716.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 16 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 17 of 39
strength in the upper and lower extremities with a normal heel and toe walk. He noted that
Ms. G. had “a great deal of difficulty on tandum” and that her “Romberg was technically
negative, although she did have a considerable amount of sway with eyes open or closed
and no real change between them,” but there was no drift. He observed that her face
moved strongly symmetrically and her hearing was intact to finger tap and finger rub. Dr.
Downs assessed Ms. G. with a mild cognitive impairment. He then stated, “[t]he patient
reports what by description seems to be more likely to be inattention and hence not
committing things to memory.” He noted that Ms. G. reported “a lot of symptoms consistent
with migraine which can cause inattention and also can disrupt memory formation on its
own.” Dr. Downs also noted that “Meniere’s is a little outside my area of expertise but
almost certainly would also be able to decrease attention span.” Dr. Downs opined that
although he did not think Ms. G. had “any sort of neurodegenerative intrinsic brain memory
dysfunction, this sort of problem nonetheless can be quite debilitating.” He assessed Ms.
G. with “[i]ntractable migraine with aura without status migrainosus” and noted that
although “[t]ypically migraines can be treated effectively,” it was “unclear to me how much
effort has been put into treating them.” Dr. Downs assessed Ms. G. with Meniere’s disease
of both ears, but noted that “[s]ome of her ‘Meniere’s’ symptoms may actually be
migrainous in nature.” He also noted that Ms. G.’s Meniere’s symptoms “seem to be quite
debilitating both directly as a result of the vertigo and also probably contributing to her
perceived cognitive impairment.”65
65 A.R. 718–21.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 17 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 18 of 39
On December 28, 2015, Dave Sanford, Ph.D., provided a review of Ms. G.’s
medically determinable impairments for the Social Security Administration. Dr. Sanford
determined that Ms. G.’s migraines were severe and her disorder of the back (discogenic
and degenerative) and organic brain syndrome were non-severe impairments. He opined
that Ms. G. did not meet or equal a listing and had only mild difficulties in maintaining
concentration, persistence, or pace. Dr. Sanford noted that Ms. G.’s records “indicate that
she does have some minor issues secondary to her physical health conditions where she
experiences some mild [symptoms] that mirror psych issues.”66
Also, on December 28, 2015, P. Michael O’Brien, M.D., provided an RFC. Dr.
O’Brien opined that Ms. G. was limited to occasionally lifting and carrying 50 pounds;
frequently lifting and carrying 25 pounds; standing/walking about six hours in an eight-hour
workday; sitting about six hours in an eight-hour workday; never climbing stairs or ramps;
occasionally climbing ladders, ropes, or scaffolds; and avoiding even moderate exposure
to hazards.67
The following are the more relevant records after the date last insured of December
31, 2015:
On October 29, 2016, Ms. G. underwent several eye and ear exams.68
66 A.R. 140–42.
67 A.R. 142–45.
68 A.R. 727–34. There is a hand-written note in the record that is illegible and no author is
indicated. A.R. 727.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 18 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 19 of 39
On November 7, 2016, Dr. Beal wrote an opinion letter. He noted that Ms. G. was
a “patient for many years as she presented to me as a person having such severe
dizziness, she was not able to function in any capacity as a worker, a wife, a mother or as
a friend.” He stated, “[t]he Meniere’s disease was aggressively treated first with trans
tympanic steroids and finally with a left endolymphatic hood shunt. This treatment worked
to the extent she could get out of bed and work around the house, but there was residual
imbalance and the likewise developed a severe trigeminal neuralgia in the post-op left
ear.” Dr. Beal noted that “[a] complete balance assessment over time demonstrated
significant ear disease with some central abnormalities in the balance system.” He stated
that “[s]he was recently evaluated for the ongoing imbalance symptoms, which are severe
enough; she is not able to work.” Dr. Beal opined that “[d]ue to the objective findings, their
prolonged occurrence and our inability to resolve these issues at this time; she is
considered to be totally disabled.”69
On December 29, 2016, Ms. G. followed up with Dr. Montesano. She reported a
recent diagnosis of right-sided trigeminal neuralgia “which had her in bed for quite some
time when combined with Meniere’s disease. Dr. Belas [sic] determined her to be totally
disabled.” On physical examination, Dr. Montesano observed that Ms. G.’s PERRLA/EOM
was intact and conjunctiva and sclera clear and without nystagmus. He observed that Ms.
G.’s [tympanic membranes] were intact and clear with normal ear canals and “grossly
normal hearing.” Dr. Montesano observed normal sensation, reflexes, coordination,
69 A.R. 724.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 19 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 20 of 39
muscle strength and tone. He noted that Ms. G. was alert and cooperative with a normal
mood and affect and normal attention span and concentration.70
The following records were submitted to the Appeals Council after the ALJ’s
November 14, 2017 decision:
On December 1, 2017, Ms. G. saw Thomas Kennedy, M.D., at Alaska Neurology
Center for “an evaluation of abnormal eye movement.” Ms. G. reported blurred vision, dull
headaches, dull achy pain in both ears, stabbing pain behind the eyes, nausea, vomiting,
bladder incontinence, and “headaches that last for days and hours to weeks associated
with confusion [and] light sensitivity.” Ms. G. reported photophobia and tinnitus, but no
depressive symptoms or anxiety. Her weight was 163 pounds with a BMI of 27.12 kg/m2.
Dr. Kennedy observed that Ms. G. had a “hostile affect,” but was alert and oriented to
person, place, and time. He noted that Ms. G.’s affect was “initially hostile then tearful and
slightly depressed.” On physical examination, Ms. G.’s extraocular eye movements were
full and conjugate; her gross motor movement was intact; her coordination of upper and
lower extremities was normal; and she was able to stand and sit without assistance. Dr.
Kennedy ordered a brain MRI and sleep deprived EEG. He prescribed Topamax for
trigeminal neuralgia and provided diet modification and supplement advice.71
On December 27, 2017, Ms. G. saw David Roberts, M.D., at Alaska Neurology
Center. She reported high photophobia, poor sleep, and “issues with feeling
70 A.R. 755–58.
71 A.R. 47–53.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 20 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 21 of 39
‘overwhelmed’.” She also reported “poor control over her ocular movements.” On physical
examination, Dr. Roberts observed that Ms. G. was “[a]lert, attentive, conversant and
coherent.” He observed that her speech production and comprehension were intact; her
recent and remote memory grossly intact; facial strength was intact and symmetric;
hearing intact to voice; and her executive functions were performed well. He observed no
abnormal involuntary movements. He noted Ms. G. walked with a steady, narrow-base
gait, and normal stride length. He stated, “[i]t appears the patient has a condition called
oscillopsia which cannot be seen on an MRI.”72
Hearing Testimony on July 21, 2017
Ms. G. attended a hearing before ALJ LaCara on July 21, 2017 with representation.
She testified that she last worked at Alaska Housewares “putting fish cans together.” She
indicated that the work made her dizzy. Ms. G. reported working in the past at Arctic Chain
Plumbing and Heating as a night dispatcher. She reported that she also cleaned the
offices and did “secretarial work” at Arctic Chain. Ms. G. testified that she worked at Alkota
Plumbing and Heating, as a newspaper deliverer for Alaska Dispatch News, and at
Automated Laundry Systems and Supply in 2008, 2009, and 2010. She testified that she
was fired from Automated Laundry Systems and Supply for making “[t]oo many mistakes.”
Ms. G. testified that she lived with her husband, teenage daughter, and dog. She indicated
that her husband woke her up at noon for lunch, she let the dog out, and “putter[ed] around
the house.” She testified that she experienced dizziness on a daily basis, vertigo on a
72 A.R. 54–59.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 21 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 22 of 39
monthly basis, and took Valium or diazepam daily to manage it. Ms. G. indicated that the
dizzy spells lasted about one minute; she had three to five episodes a day; and she would
lay down and rest after each episode. She indicated that she experienced “sharp pain in
my ear or temple, and throughout the day, it just gets worse, to where I end up having a
headache.” She reported having difficulty chewing due to trigeminal neuralgia. She
testified that her physicians would not give her pain medication. Ms. G. also testified that
she did not grocery shop; had an expired driver’s license, but she drove occasionally
(including driving her daughter to work the week before the hearing); and could sweep,
vacuum, and feed her dogs. She testified that she did not cook because “it’s just too
confusing to try to cook everything all at once.” She testified that she did not take care of
her finances and that her “eyes can’t keep track of things.” Ms. G. reported taking
antidepressants for 17 years, but she had not been to a psychologist, psychiatrist, or to
counseling.73
Jack LeBeau, M.D., testified as the medical expert. Based on his review of the
record, Dr. LeBeau indicated that Ms. G.’s conditions included Meniere’s disease, tobacco
dependence, photophobia, degenerative disc disease without radicular impingement,
tinnitus, chronic back pain, migraines, trigeminal neuralgia, dizziness, and depression. Dr.
LeBeau opined that Ms. G.’s audiograms did not show “hearing loss so severe that you’re
going to have someone who has trouble understanding conversation or directions or . . .
work-related sounds and language.” He noted that Meniere’s “is a disease of attacks, not
73 A.R. 107–08, 115–27.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 22 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 23 of 39
constant problems, and the attacks can be dealt with” and that “[m]ost people probably do
wind up not being disabled or retired.” He recommended seeing a specialist for trigeminal
neuralgia. Dr. LeBeau opined that Ms. G.’s medically determinable impairments did not
meet or equal a listing individually or in combination. He opined that Ms. G. could lift 10
pounds continuously and carry 10 pounds frequently; lift 20 pounds frequently and carry
20 pounds occasionally; sit six hours in an eight-hour workday; stand and walk two hours
each in an eight-hour workday; occasionally climb stairs and ramps; never climb scaffolds
and ladders; occasionally stoop, kneel, crouch, and crawl; never work at unprotected
heights; occasionally work with mechanical parts; and should be protected from “severe
noise.” Dr. LeBeau also opined that Ms. G. should not operate a motor vehicle.74
Colette Valette, Ph.D., testified as the psychological medical expert. Based on her
review of the record, Dr. Valette indicated that she would “categorize [the mild cognitive
impairment diagnosis] as [an] undeterminable impairment.” Dr. Valette noted that Dr.
Downs assessed Ms. G. with a mild cognitive impairment and then took away the
diagnosis “by saying, but really it’s inattention that’s causing memory problems.”75 She
testified that Ms. G.’s diagnoses of depression and anxiety were “impairments that don’t
precisely satisfy the criteria required under the listings.” Dr. Valette noted that Ms. G.’s
depressive disorder and anxiety were each “diagnosed one time” and “no symptoms were
74 A.R. 91–109.
75 Dr. Downs assessed Ms. G. with a mild cognitive impairment. He then stated, “[t]he
patient reports what by description seems to be more likely to be inattention and hence
not committing things to memory.” A.R. 720.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 23 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 24 of 39
relayed.”76 Dr. Valette opined that Ms. G. had no limitations understanding, remembering,
or implying information; no limitations interacting with others; no limitations concentrating,
persisting, or maintaining pace; and no limitations adapting or managing herself.77
William Weiss testified as the vocational expert. Based on the ALJ’s first
hypothetical78, he opined that Ms. G. could perform her past work, except the newspaper
delivery job. VE Weiss also testified that there were other jobs an individual the same age,
education, and work experience as Ms. G. could perform, including janitor, cleaner II, and
laundry worker I. Based on the ALJ’s second hypothetical,79 VE Weiss opined that Ms. G.
could perform her past work as a general office clerk and assembler. He also opined that
76 Dr. Montesano diagnosed Ms. G. with depressive disorder and anxiety on February 27,
2015. A.R. 704–06.
77 A.R. 109–14.
78 The ALJ’s first hypothetical was as follows:
Let’s assume that we have an individual the same age, education and work experience as
that of [Ms. G.] and who is limited to medium work. This person is limited to the occasional
climbing of ramps and stairs. No climbing of ladders, ropes or scaffolds. This person is [
] never to be exposed to unprotected heights and is limited to avoiding moderate exposure
to the operational control of moving machinery and hazardous machinery. A.R. 129.
79 The ALJ’s second hypothetical was as follows:
For the second hypothetical, again we’re looking at someone the same age, education
and work experience as that of [Ms. G.], and who is now only limited to light work. This
person can stand or walk a total of four hours in an eight-hour workday in any combination
with the normal breaks and is able to sit for up to six hours in an eight-hour day with the
normal breaks. This person is limited to the occasional climbing of ramps or stairs. No
climbing of ladders, ropes or scaffolds. The occasional balancing, stooping, kneeling,
crouching and crawling. This person is to avoid moderate exposure to excessive noise.
Is to avoid all exposure to unprotected heights. And is to avoid moderate exposure to
hazardous machinery and the operational control of moving machinery. A.R. 130–31.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 24 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 25 of 39
an individual with the same age, education, and work experience as Ms. G. could perform
work as a basket filler, garment sorter, and assembler. VE Weiss testified that if the
hypothetical individual took three extra 20 minute breaks or missed three or more days of
work in a month due to psychiatric or physical distractions or impairments, that person
could not retain employment, unless it was a structured work setting.80
Ms. G.’s Function Reports
Ms. G. completed a function report on July 20, 2015. She reported that during the
day she takes the dogs out, takes medications, and watches television until her husband
comes home and makes lunch. She reported that she would try to pick up the house and
do dishes. Ms. G. indicated that she had constant nausea, “mini spins,” felt off balance,
had blurred vision and headaches, and “knife stabbing pain” in her ears and jaw. She
stated, “I am in pain daily, I always feel like I am going to vomit, dizzy spells.” She reported
making food and talking with her daughter and feeding her pets, but that her husband
cooked, cleaned, did laundry, and helped their teenage daughter. Ms. G. indicated she
had no problems with her personal care, but only did chores “if I feel okay; sometimes I
don’t finish.” She reported that moving around and people and things moving around
caused her to “start to spin.” She reported that she could ride in a car, shop by mail, and
take care of her finances, but she rarely went outside because she could not “control [her]
environment.” Ms. G. stated, “I don’t know when a vertigo attack will happen so I don’t like
to leave my house anymore.” She indicated that her conditions affected lifting, squatting,
80 A.R. 127–33.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 25 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 26 of 39
bending, standing, reaching, walking, kneeling, stair climbing, seeing, memory, completing
tasks, concentrating, and understanding. Ms. G. also indicated that she needed
sunglasses in bright rooms and outside.81
Also on July 20, 2015, Ms. G. completed a headache questionnaire. She indicated
that she started having headaches in 1998, has two to three each week, and that the
headaches were in the front and back of her head with nausea and blurred vision. She
reported that medication “rarely works” and that she was unable to participate in activities
during or after a headache.82
On July 20, 2015, Warren G., Ms. G.’s husband, completed a function report on Ms.
G.’s behalf. He reported that Ms. G. tried to help him around the house during the day
and took naps due to “having small attacks all day everyday.” He indicated that Ms. G. did
not assist with caring for any other persons or any pets. Warren G. reported that Ms. G.
had no problems with personal care and could prepare cereal, but she did not cook. He
indicated that Ms. G. did the dishes once or twice a month, but that he did “everything
else.” Warren G. reported that Ms. G. could ride in a car, did not go out alone, did not do
the shopping, and did not pay bills or handle a savings account because she could not
“drive to a place we owe money to and pay the bill because it [is] to[o] much movement.”
He reported that Ms. G. was good at following written and spoken instructions. He
indicated that her conditions affected lifting, squatting, sitting, kneeling, stair-climbing,
81 A.R. 304, 307–14.
82 A.R. 305–06.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 26 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 27 of 39
understanding, bending, talking, using hands, standing, hearing, completing tasks,
reaching, seeing, getting along with others, concentration, memory, and walking. Warren
G. stated, “she needs this so it lifts her spirits so she feels like a mom helping in some sort
of way.”83
IV. DISCUSSION
Ms. G. is represented by counsel. In her opening brief, Ms. G. alleges that the ALJ
“discounted [Dr. Downs’s] opinion and medical source statement for invalid reasons
because the agency was required to re-contact Dr. Downs rather than to discount his
opinion.” She asserts that additional evidence submitted to the Appeals Council
“establishes that [Ms. G.’s] proper diagnosis is oscillopsia, which takes account of her
migraine activity and explains the imbalance due to vertigo.” She asserts that the ALJ’s
decision is not supported by substantial evidence and the VE’s testimony was “based on
[an] invalid [RFC] that does not account for the most that [Ms. G.] can do.”84 The
Commissioner disputes Ms. G.’s assertions.85 The Court addresses each of Ms. G.’s
assertions in turn:
A. Development of the Record
Ms. G. asserts that the ALJ failed to fully and fairly develop the record by failing to
re-contact examining consultant Dr. Downs “regarding the agency’s concern about multiple
83 A.R. 291–99.
84 Docket 20 at 14–24.
85 Docket 21 at 5–14.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 27 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 28 of 39
aspects of his medical source report.”86 In response, the Commissioner contends that the
ALJ “provided multiple reasons for discounting Dr. Downs’s opinion, any error as to one
reason would be harmless, in light of the other proper reasons.”87
The ALJ has an “independent duty to fully and fairly develop the record and to
assure that the claimant’s interests are considered.”88 An “ALJ’s duty to develop the record
further is triggered only when there is ambiguous evidence or when the record is
inadequate to allow for proper evaluation of the evidence.”89 The agency must contact a
consultative examiner for additional information or a revised report if the examiner’s report
is “inadequate or incomplete.”90 A report should “provide[ ] evidence which serves as an
adequate basis for decisionmaking in terms of the impairment it assesses” and the
absence of a medical source statement “about what you can still do despite your
impairment(s)” will not make a consultative examination report incomplete.91
Although the ALJ characterized Dr. Downs’s opinion as “vague” and pointed out that
it did not provide any specific workplace limitations, Dr. Downs’s report nonetheless served
86 Docket 20 at 16.
87 Docket 21 at 9.
88 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (internal citations and
quotations omitted).
89 McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (internal citations omitted).
90 20 C.F.R. §§ 404.1519p(b) (2000).
91 20 C.F.R. § 404.1519p(a)(1) (2000); § 404.1519n(c)(6) (applied to claims filed before
March 27, 2017).
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 28 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 29 of 39
as an adequate basis for decision-making in terms of the impairments it assessed. Dr.
Downs provided a detailed past medical history; documented Ms. G.’s subjective
complaints; assessed Ms. G. with mild cognitive impairment; and also noted that Ms. G.
reported “a lot of symptoms consistent with migraine which can cause inattention and also
can disrupt memory formation on its own.” He documented a mini mental status exam
score of 29/30. On physical examination, Dr. Downs observed pupils equally round and
reactive to light with full range and conjugate extraocular movements; 5/5 motor strength
in the upper and lower extremities with a normal heel and toe walk; “a considerable amount
of sway with eyes open or closed and no real change between them,” but no drift; strongly
symmetrical face movements; and intact hearing.92 Treatment notes throughout the record
reveal Ms. G. had normal eye, nose, and oropharynx exams; full and conjugate eye
movements; normal gross motor movement, strength, and coordination of upper and lower
extremities; some hearing loss; and a normal gait.93 The evidence was not incomplete or
ambiguous. Therefore, the ALJ was not required by the regulations to re-contact Dr.
Downs regarding his consultative examination.
B. Dr. Downs’s Medical Opinion
Ms. G. alleges that ALJ erred by discounting Dr. Downs’s opinions “with ‘little weight’
preferring other doctors instead, including non-treating, non-examining Dr. LeBeau as well
92 A.R. 718–21.
93 e.g., A.R. 378, 422–24, 426–31, 383, 532, 704–07, 709, 755–58.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 29 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 30 of 39
as psychologist Dr. Valette, who was non-treating, non-examining, too.”94 The
Commissioner contends that the ALJ “properly evaluated Dr. Downs’s opinion.”95
“Regardless of its source, [the SSA] will evaluate every medical opinion [it]
receive[s].”96 Medical opinions come from three types of sources: those who treat the
claimant; those who examine but do not treat the claimant; and those who neither examine
nor treat the claimant. “As a general rule, more weight should be given to the opinion of a
treating source than to the opinion of doctors who do not treat the claimant.”97 In the Ninth
Circuit, “[t]o reject the uncontradicted opinion of a treating or examining doctor, an ALJ
must state clear and convincing reasons that are supported by substantial evidence.”98
When “a treating or examining doctor’s opinion is contradicted by another doctor’s opinion,
an ALJ may only reject it by providing specific and legitimate reasons supported by
substantial evidence.”99 This can be done by “setting out a detailed and thorough
summary of the facts and conflicting clinical evidence, stating his interpretation thereof,
and making findings.” In disability benefits cases, physicians “may render medical, clinical
opinions, or they may render opinions on the ultimate issue of disability –– the claimant’s
94 Docket 20 at 16–17.
95 Docket 21 at 5–9.
96 20 C.F.R. § 404.1527(c). This section applies to claims filed before March 27, 2017.
97 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821,
830 (9th Cir. 1995)).
98 Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (internal citations omitted).
99 Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 30 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 31 of 39
ability to perform work.”100
The opinions of agency physician consultants may be considered medical opinions,
and their findings and evidence are treated similarly to the medical opinion of any other
source.101 “The weight afforded a non-examining physician’s testimony depends ‘on the
degree to which he provides supporting explanations for his opinions.’”102 Greater weight
may also be given to the opinion of a non-examining expert who testifies at a hearing
because he is subject to cross examination.103
In this case, Dr. Downs was an examining physician. His opinion that Ms. G’s
condition was debilitating was contradicted by examining physician Dr. Mamikunian,
testifying Drs. LeBeau and Valette, and the SSA reviewing physician, Dr. O’Brien.104
Therefore, the ALJ was required to provide specific and legitimate reasons supported by
substantial evidence for discounting Dr. Downs’s opinion.
In her determination, the ALJ discussed Dr. Downs’s opinions. She discounted Dr.
Downs’s opinion that Ms. G.’s “condition was debilitating both directly as a result of the
vertigo and also probably contributing to her perceived cognitive impairment” for the
following reasons: (1) the opinion was “very vague;” (2) Dr. Downs “did not provide any
100 Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (internal citations omitted).
101 20 C.F.R. §§ 404.1513a(b), 416.913a(b).
102 Garrison, 759 F.3d at 1012.
103 Andrews v. Shalala, 53 F.3d 1035, 1042 (citing Torres v. Secretary of H.H.S., 870 F.2d
742, 744 (1st Cir. 1989)).
104 A.R. 92–109, 142–45, 709, 720–21.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 31 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 32 of 39
specific work place limitations;” (3) Dr. Downs’s use of “the term debilitating to describe
the subjective symptoms” reported by Ms. G.; (4) Ms. G.’s symptoms were not supported
by the objective medical evidence; and (5) Dr. Downs stated that Meniere’s disease was
“a little outside my area of expertise.”105
An ALJ may reject an examining physician’s opinion when it conflicts with the
physician’s own treatment notes.106 As set forth above, Dr. Downs’s physical examination
findings do not support his opinion that Ms. G.’s condition was debilitating.107 Additionally,
an ALJ may consider a physician’s area of specialization.108 Here, Dr. Downs was a
neurologist that performed a neurological examination. He noted specifically that
Meniere’s disease was outside of his area of expertise.109 Further, the opinions of non-
treating or non-examining physicians may serve as substantial evidence when the
opinions are consistent with independent clinical findings or other evidence in the
record.110 At the July 2017 hearing, Dr. LeBeau reviewed Dr. Downs’s neurological
105 A.R. 75–76, 719–20.
106 Valentine v. Comm’r of Soc. Sec., 574 F.3d 685, 692–93 (9th Cir. 2009).
107 A.R. 719–20. See supra n. 89.
108 Factors relevant to evaluating any medical opinion include: (1) the examining or treating
relationship; (2) the consistency of the medical opinion with the record as a whole; (3) the
physician’s area of specialization; (4) the supportability of the physician’s opinion through relevant
evidence; and (5) other relevant factors, such as the physician’s degree of familiarity with the SSA’s
disability process and with other information in the record. 20 C.F.R. § 404.1527(c). This section
applies to claims filed before March 27, 2017.
109 A.R. 719–20.
110 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 32 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 33 of 39
examination and Ms. G.’s history of Meniere’s. Dr. LeBeau noted that Meniere’s “is a
disease of attacks, not constant problems, and the attacks can be dealt with” and that
“[m]ost people probably do wind up not being disabled or retired.” He also noted that Ms.
G.’s Meniere’s episodes were “not near as severe as they used to be.”111 In the medical
record, Ms. G. reported improvement in her vertigo symptoms after an August 2013 left
ear shunt surgery.112 Her eye, nose, and oropharynx exams were normal in most
treatment notes.113 Her neurological examinations were normal.114
Dr. Valette indicated that based on her review of the longitudinal record, she would
“categorize [the mild cognitive impairment diagnosis] as [an] undeterminable impairment.”
Specifically, Dr. Valette noted that in Dr. Downs’s report, he diagnosed Ms. G. with a mild
cognitive impairment and then opined that inattention was causing Ms. G.’s memory
problems.115 As noted by the ALJ, Dr. Downs provided a neurological evaluation and the
diagnosis of mild cognitive impairment was outside this scope.116 Further, the medical
record does not show a cognitive impairment diagnosis by any other physician.
111 A.R. 94–97.
112 A.R. 532, 709, 736.
113 A.R. 378, 382, 396, 532.
114 A.R. 50–51, 422–24, 719–20.
115 A.R. 111, 113, 720. Dr. Downs summarized, “[c]onsequently, I believe it is not so much
that she has true cognitive impairment as she is distracted and inattentive due to her
medical problems.” A.R. 720.
116 A.R. 76, 718–21.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 33 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 34 of 39
Although Ms. G. argues that “[p]ain is subjective, and to that extent is a complaint
that is assessed by any doctor within the realm of their expertise and training” and “Dr.
Downs was capable of assessing pain in Ms. [G.],” Dr. Downs did not note pain behaviors
upon examination. For example, Dr. Downs observed that Ms. G. was in “no distress” and
was “awake, alert and oriented.” She scored 29/30 on a mental status exam taken at the
visit and had no abnormal movements. Dr. Downs concluded Ms. G. was “distracted and
inattentive due to her medical problems,” but noted that her pain, migraines, and/or
Meniere’s could be the cause.117
For the foregoing reasons, the Court finds that the ALJ provided specific and
legitimate reasons for discounting Dr. Downs’s work opinion.
C. Additional Evidence
In its decision, the Appeals Council noted that Ms. G. submitted medical records
from: (1) David Beal, M.D., dated July 16, 2013 to November 5, 2016; (2) medical evidence
from Thomas Kennedy, M.D., dated December 1, 2017; and (3) medical evidence from
David Roberts, M.D., dated December 18, 2017. The Appeals Council determined that
this evidence did not “show a reasonable probability that it would change the outcome of
the decision” and the Council did not “exhibit this evidence.”118
Ms. G. asks the Court to weigh the additional evidence regarding Dr. Roberts’s
oscillopsia diagnosis in 2017. She alleges that the “additional evidence establishes that
117 A.R. 719–20.
118 A.R. 2.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 34 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 35 of 39
[Ms. G.]’s proper diagnosis is oscillopsia, which takes account of her migraine activity and
explains the imbalance due to vertigo.”119
When the Appeals Council declines review, its decision is not subject to judicial
review and “the ALJ’s decision becomes the final decision of the Commissioner.”120
However, a court considers the additional evidence, “which was rejected by the Appeals
Council, to determine whether, in light of the record as a whole, the ALJ’s decision was
supported by substantial evidence and was free of legal error.”121
In this case, it does not appear that Dr. Roberts definitively diagnosed Ms. G. with
oscillopsia. Dr. Roberts noted that Ms. G. reported “poor control over her ocular
movements,” but on physical examination, Dr. Roberts documented only that photophobia
was reported and that the “[p]atient wears sunglasses.” Further, although Dr. Roberts
stated, “[i]t appears the patient has a condition called oscillopsia which cannot be seen on
an MRI,” the record does not show that Dr. Roberts prescribed medication or a treatment
plan specific to oscillopsia.122 He ordered a neuropathy panel, prescribed Vitamin D3,
119 Docket 20 at 20–21, 58.
120 Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 2011); see Klemm
v. Astrue, 543 F.3d 1139, 1144 (9th Cir. 2008) (“The Social Security Act grants to district
courts jurisdiction to review only ‘final decisions’ of the Commissioner.”) (citing 42 U.S.C.
§ 405(g))).
121 Id. at 1232. See also Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th
Cir. 2012) (“[W]e hold that when the Appeals Council considers new evidence in deciding
whether to review a decision of the ALJ, that evidence becomes part of the administrative
record, which the district court must consider when reviewing the Commissioner’s final
decision for substantial evidence.”).
122 Ukolov v. Barnhart, 420 F.3d 1002, 1006 (9th Cir. 2005) (“Dr. Nilaver reported Ukolov’s
subjective complaints, including ‘gait ataxia,’ balance problems, dizziness, ‘limitations with
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 35 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 36 of 39
recommended other vitamin supplements, and recommended Ms. G. return to the clinic in
six months to follow up.123
Additionally, the ALJ evaluated Ms. G.’s migraine and imbalance symptoms in her
decision. For example, the ALJ considered Ms. G.’s reports that her vertigo, photophobia,
and headaches triggered by light, smells, and stress and accompanied by nausea
improved after left endolymphatic sac decompression by Dr. Beal. The ALJ noted that the
treatment records showed the trigeminal neuralgia was treated with Vicodin and that Ms.
G. was not taking pain medications or seeing a neurologist for treatment of the trigeminal
neuralgia. She considered Dr. LeBeau’s testimony that the medical records showed a
history of trigeminal neuralgia and that there was “no objective explanation regarding the
photophobia.” She weighed the opinion evidence of Ms. G.’s treating and examining
physicians regarding Ms. G.’s hearing loss, vertigo and imbalance symptoms, and
migraine symptoms.124
Thus, considering the record as a whole, including Dr. Roberts’s treatment notes,
the ALJ’s decision was supported by substantial evidence and free from legal error.
regards to sustained ambulation,’ and ‘increased tendency to fall.’ These portions of the
records do not support a finding of impairment because they are based solely on Ukolov’s
own ‘perception or description’ of his problems.”); see also SSR 96-6p, 1996 WL 374180,
at *1 (July 2, 1996) (A medical opinion offered in support of an impairment must include
symptoms [and a] diagnosis).
123 A.R. 56, 58.
124 A.R. 71–78.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 36 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 37 of 39
D. The RFC and VE Testimony
Ms. G. alleges that “[t]he agency decision is the product of reversible errors of law
and is not supported by substantial evidence because it fails to take account of the most
that [Ms. G.] can do now that she is properly diagnosed with oscillopsia.” She also asserts
that “[b]ecause the residual functional capacity is the product of errors of law, and is not
supported by substantial evidence, the vocational expert witness testimony is not
supported by substantial evidence.”125
A court should affirm an ALJ’s determination of a claimant’s RFC “if the ALJ applied
the proper legal standard and his decision is supported by substantial evidence.”126 In
assessing an RFC, the ALJ “must consider limitations and restrictions imposed by all of an
individual’s impairments, even those that are not ‘severe.’”127 It is “proper for an ALJ to
limit a hypothetical to those impairments that are supported by substantial evidence in the
record.”128 But, “an RFC that fails to take into account a claimant’s limitations is
125 Docket 20 at 22–24.
126 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)).
127 See SSR 96-08p, available at 1996 WL 374184 at *5; 20 C.F.R. §§ 404.1545(a)(2),
416.945(a)(2) (“We will consider all of your medically determinable impairments of which
we are aware, including your medically determinable impairments that are not ‘severe.’”).
128 Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001) (citing Magallanes v. Bowen,
881 F.2d 747, 756-57 (9th Cir. 1989) (“the ALJ was free to accept . . . that the claimant’s
depression was mild and would not significantly interfere with the performance of work
related activities.”)).
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 37 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 38 of 39
defective.”129 When posing a hypothetical question to a VE, the ALJ’s “depiction of the
claimant’s disability must be accurate, detailed, and supported by the medical record.”130
And, “[h]ypothetical questions asked of the vocational expert must ‘set out all of the
claimant’s impairments.’”131
In this case, the ALJ took Ms. G.’s limitations into account in determining the RFC.
It is unclear from the medical record from Dr. Roberts that he made an actual diagnosis of
oscillopsia.132 And, even without the formal diagnosis, the ALJ evaluated Ms. G.’s
symptoms and reports of imbalance, migraines, nausea, vertigo, and headaches. The ALJ
assessed treatment notes, the objective evidence, and physician opinions regarding those
symptoms.133 The ALJ’s hypothetical questions posed to VE Weiss included an RFC for
medium work with limitations and an RFC for light work with limitations.134
For the foregoing reasons, the RFC and the ALJ’s step four and step five findings
are supported by substantial evidence and free of legal error.
//
//
129 Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009).
130 Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir.1999).
131 Lewis v. Apfel, 236 F.3d 503, 517 (9th Cir. 2001) (internal citation omitted).
132 A.R. 58.
133 A.R. 71–78.
134 A.R. 129–31.
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 38 of 39

Case No. 3:19-cv-00026-SLG, Debra G. v. Saul
Decision and Order
Page 39 of 39
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 in the
record as a whole. Accordingly, IT IS ORDERED that Ms. G.’s request for relief at Docket
20 is DENIED as set forth herein and the Commissioner’s final decision is AFFIRMED.
The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 4th day of February, 2020 at Anchorage, Alaska.
/s/ Sharon L. Gleason____________
UNITED STATES DISTRICT JUDGE
Case 3:19-cv-00026-SLG Document 23 Filed 02/04/20 Page 39 of 39