Case Name in Social Security Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
RYAN ALLEN C.,1
Plaintiff,
v.
KILOLO KIJAKAZI,2
Acting Commissioner of Soc. Sec. Admin.,
Defendant. Case No. 3:20-cv-00220-SLG
DECISION AND ORDER
On or about August 14, 2017, Ryan Allen C. (“Plaintiff”) protectively filed an
application for disability insurance benefits (“DIB”) under Title II of the Social Security Act
(“the Act”),3 alleging disability beginning September 1, 2010.4 Plaintiff has exhausted his
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 Kilolo Kijakazi is now the Acting Commissioner of Social Security and is automatically substituted
as a party pursuant to Fed. R. Civ. P. 25(d). See also section 205(g) of the Social Security Act,
42 U.S.C. 405(g) (action survives regardless of any change in the person occupying the office of
Commissioner of Social Security).
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 in this case. Although each program is governed by a separate set of
regulations, the regulations governing disability determinations are substantially the same for both
programs. Compare 20 C.F.R. §§ 404.1501–1599 (governing disability determinations under Title
II) with 20 C.F.R. §§ 416.901–999d (governing disability determinations under Title XVI). For
convenience, the Court cites the regulations governing disability determinations under both titles.
4 Administrative Record (“A.R.”) 206. Plaintiff amended his application with a new disability onset
date of September 1, 2010. A.R. 218. The amended application summary lists August 15, 2017
as the application date. A.R. 206.
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administrative remedies and filed a Complaint seeking relief from this Court.5 Plaintiff’s
opening brief asks the Court to vacate and remand the agency’s decision for a de novo
hearing with Plaintiff’s counsel present.6 The Commissioner filed an Answer and a brief
in opposition to Plaintiff’s opening brief.7 Plaintiff filed a reply brief on March 29, 2021.8
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
Social Security.9 For the reasons set forth below, Plaintiff’s request for relief is granted.
I. STANDARD OF REVIEW
A decision by the Commissioner to deny disability benefits will not be overturned
unless it is either not supported by substantial evidence or is based upon legal error.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
5 Docket 1 (Plaintiff’s Compl.).
6 Docket 21 (Plaintiff’s Br.).
7 Docket 19 (Answer); Docket 22 (Defendant’s Br.).
8 Docket 23 (Reply).
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. v. NLRB, 305
U.S. 197, 229 (1938)).
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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 he did not rely.”15 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.”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 his own interests.18
12 Perales, 402 U.S. at 401; Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975)
(per curiam).
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).
16 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks 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)); 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).
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II. DETERMINING DISABILITY
The Social Security Act (“the Act”) provides for the payment of disability insurance
to individuals who have contributed to the Social Security program and who suffer from a
physical or mental disability.19 In addition, Supplemental Security Income (“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.20 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.21
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.22
19 42 U.S.C. § 423(a).
20 42 U.S.C. § 1381a.
21 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
22 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
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The Commissioner has established a five-step process for determining disability
within the meaning of the Act.23 A claimant bears the burden of proof at steps one through
four in order to make a prima facie showing of disability.24 If a claimant establishes a
prima facie case, the burden of proof then shifts to the agency at step five.25 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.”26 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.”27 The ALJ determined that Plaintiff had not engaged in substantial activity during
the period from his alleged onset date of September 1, 2010 through his date last insured
of December 31, 2017.28
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
23 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
24 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).
25 Treichler, 775 F.3d at 1096 n.1; Tackett, 180 F.3d at 1098 (emphasis in original).
26 Tackett, 180 F.3d at 1101.
27 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
28 A.R. 15.
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twelve-month duration requirement.29 The ALJ determined that Plaintiff had the following
severe impairments: right shoulder hypermobility and obesity. The ALJ determined that
Plaintiff’s migraine headaches; sleep apnea; shin splints; knee injuries; flat feet;
keratoconus; major depressive disorder; and panic disorder were non-severe
impairments.30
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 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.31 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 1.32
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 his impairments, including impairments that are not severe.33
29 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
30 A.R. 15–17.
31 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
32 A.R. 20.
33 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
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The ALJ determined that Plaintiff had the residual functional capacity to perform light
work, but with the following limitations: occasional climbing of ladders, ropes, or scaffolds;
frequent kneeling, crouching, or crawling; frequent reaching in all directions with the right
upper extremity; and avoidance of concentrated exposure to hazardous machinery and
hazardous heights.34
Step 4. Determine whether the claimant is capable of performing past relevant
work. At this point, the analysis considers whether past relevant work requires the
performance of work-related activities that are precluded by the claimant’s RFC. If the
claimant can still do his past relevant work, the claimant is deemed not to be disabled.35
Otherwise, the evaluation process moves to the fifth and final step. The ALJ determined
that Plaintiff was not capable of performing any past relevant work.36
Step 5. Determine whether the claimant is able to perform other work in the
national economy in view of his age, education, and work experience, and in light of the
RFC. If so, the claimant is not disabled. If not, the claimant is considered disabled.37 The
ALJ determined that other jobs existed in significant numbers in the national economy
that Plaintiff could perform, including assembler of small parts; ticket taker; and food
service worker.38
34 A.R. 20.
35 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
36 A.R. 23.
37 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
38 A.R. 23–24.
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The ALJ concluded that Plaintiff was not disabled within the meaning of the Social
Security Act at any time from September 1, 2010, through December 31, 2017, the date
last insured.39
III. PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff was born in 1987 and is 34 years old.40 Plaintiff reported working as an
aircraft maintenance specialist in the United States Air Force until September 2012.41 On
September 21, 2017, the Social Security Administration (“SSA”) determined that Plaintiff
was not disabled under the applicable rules.42 The SSA affirmed the initial determination
on reconsideration.43 Plaintiff appeared and testified without representation at a hearing
held on September 20, 2019 in Anchorage, Alaska, before ALJ Cecelia LaCara.44 On
November 8, 2019, the ALJ issued an unfavorable ruling.45 On July 20, 2020, the Appeals
Council denied Plaintiff’s request for review.46 On September 8, 2020, Plaintiff appealed
39 A.R. 24.
40 A.R. 206.
41 A.R. 49–50, 281.
42 A.R. 87.
43 A.R. 105.
44 A.R. 34–37, 47–54.
45 A.R. 10–24.
46 A.R. 1–5.
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the Commissioner’s final decision to this Court; he is represented by counsel in this
appeal.47
IV. DISCUSSION
Plaintiff’s opening brief alleges that the ALJ: (1) violated Plaintiff’s due process right
to representation; (2) violated Social Security Administration policy by having the medical
experts testify without hearing Plaintiff’s testimony; and (3) failed to develop the record
regarding all of Plaintiff’s impairments, including bilateral shoulder impairments; flat feet;
knee joint laxity; headaches; imaging consistent with back pain; and mental
impairments.48
A. Due Process Right to Representation and Lack of Counsel
Plaintiff alleges that the ALJ violated his right to representation “when [the ALJ]
denied his reasonable request for postponement to obtain an attorney.”49 The
Commissioner asserts that Plaintiff’s right to representation claim is limited to
constitutional due process. Specifically, the Commissioner alleges that the ALJ’s good
cause decision under 20 C.F.R. § 404.936 is not subject to judicial review. The
Commissioner contends that under a constitutional due process analysis, Plaintiff
received meaningful notice and an opportunity to be heard.50
//
47 Docket 1.
48 Docket 21 at 3–15.
49 Docket 21 at 3–6.
50 Docket 22 at 4–8.
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1. Legal standard
Claims alleging violations of procedural due process “require (1) a deprivation of a
constitutionally protected liberty or property interest, and (2) a denial of adequate
procedural protections.”51 Claimants seeking Social Security disability benefits have a
property interest in those benefits and are entitled to due process in the determination of
their claims.52 “It is axiomatic that due process requires that a claimant receive
meaningful notice and an opportunity to be heard before his claim for disability benefits
may be denied.”53
Additionally, the regulations governing Social Security hearings allow for claimants
to appear with or without representation at a hearing before an ALJ.54 An ALJ will
reschedule the time or place of a hearing when “good cause” exists. The regulations
define “good cause” as:
(i) A serious physical or mental condition or incapacitating injury makes it
impossible for [claimant] or [claimant’s] representative to travel to the
hearing, or a death in the family occurs; or
(ii) Severe weather conditions make it impossible for [claimant] or [claimant’s]
representative to travel to the hearing.55
51 Kildare v. Saenz, 325 F.3d 1078, 1085 (9th Cir. 2003).
52 Holohan v. Massanari, 246 F.3d 1195, 1209 (9th Cir. 2001) (”We recognize this principle as
governing administrative adjudications of social security benefit claims.”).
53 Udd v. Massanari, 245 F.3d 1096, 1099 (9th Cir. 2001) (citing Mathews v. Eldridge, 424 U.S.
319, 333 (1976)).
54 20 C.F.R. §§404.900, 404.916.
55 20 C.F.R. §404.936(f)(1).
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Outside of these catastrophic circumstances, an ALJ will “consider [a claimant’s]
reason(s) for requesting the change, the facts supporting it, and the impact of the
proposed change on the efficient administration of the hearing process.”56 The
regulations give specific examples, including:
(i) [Claimant] unsuccessfully attempted to obtain a representative and need[s]
additional time to secure representation;
(ii) [Claimant’s] representative was appointed within 30 days of the scheduled
hearing and needs additional time to prepare for the hearing;
(iii) [Claimant’s] representative has a prior commitment to be in court or at
another administrative hearing on the date scheduled for the hearing;
(iv) A witness who will testify to facts material to [claimant’s] case would be
unavailable to attend the scheduled hearing and the evidence cannot be
otherwise obtained;
(v) Transportation is not readily available for [claimant] to travel to the hearing;
or
(vi) [Claimant is] unrepresented, and [claimant is] unable to respond to the
notice of hearing because of any physical, mental, educational, or linguistic
limitations (including any lack of facility with the English language) which
[claimant] may have.57
An agency’s failure to follow its own regulations does not, standing alone, establish
a violation of constitutional due process.58 A challenge to the merits of an ALJ’s decision
regarding “good cause” also does not set forth a constitutional claim. Due process does,
56 20 C.F.R. §404.936(f)(2).
57 20 C.F.R. §404.936(f)(2).
58 Brown v. Holder, 763 F.3d 1141, 1148 (9th Cir. 2014) (“[W]hile courts have generally invalidated
adjudicatory actions by federal agencies which violated their own regulations promulgated to give
a party a procedural safeguard, . . . the basis for such reversals is not . . . the Due Process Clause,
but rather a rule of administrative law.’”) (internal quotation omitted).
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however, require the ALJ to consider all “potentially valid reasons” offered by a claimant
for establishing good cause.59
2. Plaintiff’s due process right to representation
In this case, Plaintiff initiated his application in Florida.60 At that time, he was
represented by counsel.61 In January 2019, Plaintiff informed his counsel of his move to
Alaska and his counsel withdrew representation as Plaintiff was no longer in the attorney’s
jurisdiction.62 Plaintiff’s case was transferred to the Alaska Social Security office in March
2019.63 On June 13, 2019, the agency sent Plaintiff notice that his hearing was scheduled
for September 20, 2019. The notice included the process for objecting to the hearing
date and time and a notice of his right to representation.64 The notice also informed
Plaintiff that he was required to attend his hearing on the scheduled date. Specifically,
the notice stated, “[i]f you do not attend the hearing and [the ALJ] do[es] not find that you
have a good reason, [the ALJ] may dismiss your request for hearing. [The ALJ] may do
59 Dexter v. Colvin, 731 F.3d 977, 980–81 (9th Cir. 2013) (The Ninth Circuit court held that Dexter
stated a colorable due process claim because she presented a reason constituting good cause
under the Social Security Administration’s regulations. The court remanded for the ALJ’s failure
to consider Dexter’s potentially valid reasons for delay.).
60 A.R. 206, 218.
61 A.R. 152.
62 Id.
63 A.R. 35, 154.
64 A.R. 155–63.
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so without giving you further notice.”65
On July 1, 2019, a Senior Attorney at the Social Security Office of Hearings
Operations called Plaintiff. After Plaintiff informed the attorney that he was no longer
represented by counsel, the attorney stated the following to Plaintiff:
If you do not have a representative by the time of your scheduled
hearing, you must be prepared to proceed with the hearing without a
representative. Additionally, absent extraordinary circumstances, no
postponement will be granted. Extraordinary circumstances generally
include: incarceration, institutionalization, natural disasters, very
unusual circumstances directly related to your impairments, a serious
illness preventing your appearance at the scheduled hearing, or death
or serious illness in your immediate family. Extraordinary
circumstances do not include delaying to the last-minute the
appointment of a representative.66
Plaintiff appeared at his hearing on September 20, 2019 and at the outset of that
hearing, requested a postponement to find legal representation.67 The following
exchange took place:
Plaintiff: . . . I would like to ask for a postponement. I have been unable to
find representation.
ALJ: You were advised of your rights to counsel back in July.
Plaintiff: Yes, Your Honor.
ALJ: What is the issue? I mean, we’re into September. So that – I mean,
that’s the purpose of the pre-hearing conference, is to give you enough time
to figure out whether or not you’re willing to attend the hearing, with or
without counsel. So I’m – I’d like to hear why you think you deserve a
second or additional time.
65 A.R. 155 (emphasis in original).
66 A.R. 176.
67 A.R. 34.
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Plaintiff: Of course. I did have representation when I was awaiting my
hearing, when I was living down in Florida. After my divorce, I moved up
here. And I had to not use my representative down there, unforunatley [sic],
as they were not willing to travel. After I got up here, I did call around to
everybody I could. No attorney wanted to take my case as a representative,
because I was over the year and a half mark of waiting, and none of them
knew, or didn’t want to take the case at that point, because it could have
been at any moment. After I actually received the notice, notification of
hearing, I couldn’t find anyone because it was too soon to the date,
unfortunately.68
The ALJ decided to move forward with the hearing, explaining:
All right. So here’s the thing. Because we provided you with notice of your
right to representation — in looking at the right to representation contact
form, that appears in your file at 19B, I saw nothing that indicated that you
did not understand, and that you were reminded of the hearing September
20 — about the hearing that was scheduled for September 20th, and that
the attorney reminded you to update your medical records and to fill out the
forms. I don’t see anything that — in this, that indicates that you did not
know that you needed to try and find an attorney, and if you were not able
to find an attorney, that you were going to represent yourself if you chose to
appear at the hearing.69
Plaintiff replied, “Yes, Your Honor” and the hearing then proceeded. 70
In his opening brief, Plaintiff argues that the ALJ failed to consider the
circumstances surrounding his “earnest desire for representation” and failed to explain on
the record why Plaintiff’s circumstances did not justify a postponement.71 Plaintiff
presented potentially valid reasons for seeking a postponement at his hearing—
68 A.R. 34–35, 152.
69 A.R. 35, 175–76.
70 A.R. 35.
71 Docket 21 at 4.
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specifically, his unsuccessful efforts to obtain new counsel in Alaska after his attorney in
Florida withdrew representation due to Plaintiff no longer living in the attorney’s
jurisdiction.72 This reason may constitute “good cause” for a postponement as
contemplated by the regulations.73 Importantly, the ALJ made no inquiry into the specific
circumstances of Plaintiff’s situation or his efforts to obtain substitute counsel after he
relocated to Alaska.74 And, had the ALJ so inquired, the ALJ would have learned that
Plaintiff had found an attorney who had agreed to represent him before the SSA, but that
attorney “had a scheduling conflict” on the day of the hearing.75 Moreover, the ALJ’s
reference to the July 1, 2019 attorney’s statement that postponement would be granted
only in extraordinary circumstances is a higher standard than required for a claimant to
show “good cause” set forth in the agency’s regulations.76 In sum, the ALJ’s failure to
address Plaintiff’s potentially valid reasons to obtain a postponement violated due
72 A.R. 34–35, 152.
73 A.R. 34–35; see 20 C.F.R. §404.936(f)(2)(i), (iii) (listing as examples of circumstances that may
warrant a finding of good cause that “You unsuccessfully attempted to obtain a representative and
need additional time to secure representation” and “Your representative has a prior commitment
to be in court or at another administrative hearing on the date scheduled for the hearing.”).
74 A.R. 34–35.
75 A.R. 197–200. Plaintiff and Attorney Bam both signed a fee agreement on September 20, 2019.
The Office of Hearings Operations received the fee agreement on September 26, 2019. A.R. 197.
Attorney Bam signed the SSA’s Representative’s Acceptance of Appointment form on September
23, 2019. This form was received by the Office of Hearings Operations on September 26, 2019.
A.R. 198.
76 See Arga on behalf of L.T. v. Comm’r, Soc. Sec. Admin., 2019 WL 3503998, at * 3 (D. Ore. July
7, 2019) (“Here, the ALJ failed to consider whether Plaintiff showed good cause for postponement
as required by the regulations and instead substituted her own rule for making that determination.”
The ALJ stated she would only grant another postponement in “extraordinary circumstances” and
that she only granted one postponement per case.).
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process.77
B. Medical Expert Testimony
Plaintiff asserts that the ALJ violated agency policy by having the medical experts
testify at the beginning of the administrative hearing.78 Plaintiff’s claim is based on the
Social Security Agency’s internal policy manual, the Hearings, Appeals, and Litigation
Manual (“HALLEX”) § I-2-6-70(b), which provides in pertinent part:
The [medical expert] may attend the entire hearing, but this is not required.
If the [medical expert] was not present to hear pertinent testimony, such as
testimony regarding the claimant’s current medications or sources and
types of treatment, the ALJ will summarize the testimony for the [medical
expert] on the record. If additional medical evidence is received at the
hearing, the ALJ will provide it to the [medical expert] for review before the
[medical expert] testifies.79
Citing the promulgation of SSR 13-2p, Plaintiff argues that the ALJ is obligated to
follow SSA policies as set forth in the HALLEX.80 He alleges that in this case, both
77 Dexter v. Colvin, 731 F.3d at 981 (“[I]f a claimant provides a facially legitimate reason that
constitutes ‘good cause’ under the Commissioner’s regulations, . . . then due process requires
the ALJ to address it.”).
78 Docket 21 at 6.
79 HALLEX I-2-6-70(b)(S.S.A.), available at 1993 WL 751901.
80 Docket 21 at 6. Social Security Ruling (“SSR”) 13-2p, states in pertinent part:
15. How should adjudicators consider Federal district and circuit court decisions about DAA?
. . .
a. General. We require adjudicators at all levels of administrative review to follow agency
policy, as set out in the Commissioner’s regulations, SSRs, Social Security
Acquiescence Rulings (ARs), and other instructions, such as the Program Operations
Manual System (POMS), Emergency Messages, and the Hearings, Appeals and
Litigation Law manual (HALLEX).
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medical experts “testified without reviewing the claimant’s testimony, in direction violation
of HALLEX I-2-6-70(b),” resulting in a failure to consider all of Plaintiff’s impairments and
limitations. He requests remand based on this error.81
The Commissioner does not dispute that the medical experts testified prior to the
Plaintiff and therefore, the medical experts were unaware of Plaintiff’s testimony when
they rendered their opinions. But the Commissioner contends that the HALLEX does not
impose judicially enforceable duties. The Commissioner also asserts that the regulations
unambiguously state that the ALJ “may decide when the evidence will be presented and
when the issues will be discussed.”82
The Ninth Circuit has held that the HALLEX is not binding on the ALJs and is not
enforceable by the courts.83 Moreover, SSR 13-2p is not applicable to the facts of
Plaintiff’s case. SSR 13-2p is a policy clarifying how the SSA determines “whether ‘drug
addiction and alcoholism’ (DAA) is material to [SSA’s] determination of disability.”84 As
other district courts in the Ninth Circuit have held, SSR 13-2 is not binding here because
SSR 13-2p, available at 2013 WL 621536, at *15 (Feb. 20, 2013).
81 Docket 21 at 6–9.
82 Docket 22 at 8 (citing 20 C.F.R. §404.944).
83 See Roberts v. Comm’r of Soc. Sec. Admin., 644 F.3d 931, 933 (9th Cir. 2011) (“HALLEX . . .
does not carry the force of law and is not binding upon the agency. Therefore, we do not review
allegations of non-compliance with its provisions.”) (internal quotations and citations omitted);
Lockwood v. Comm’r Soc. Sec., 616 F.3d 1068, 1072 (9th Cir. 2010) (“HALLEX does not impose
judicially enforceable duties on either the ALJ or this court.”) (internal citations omitted).
84 SSR 13-2p, available at 2013 WL 603764. See also 20 C.F.R. §402.35(b)(1); 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.”).
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Plaintiff is not claiming the ALJ improperly applied the drug and alcohol dependence
factors.85 And, even after SSR 13-2p was enacted, the Ninth Circuit has continued to
hold that the SSA’s internal policy manuals such as HALLEX do not give rise to legally
enforceable rights.86 In very recent decisions, district courts in the Ninth Circuit have also
continued to hold that the HALLEX is not binding on ALJs and is not legally enforceable
by federal courts.87 In this case, reversal is not warranted solely based on the ALJ’s
decision to have the medical experts testify before Plaintiff testified. However, the Court
reverses for the ALJ’s failure to adequately evaluate Plaintiff’s physical limitations due in
part to the ALJ’s inadequate questioning of Dr. Golub and incomplete examination of the
VE as outlined below.
C. Left Shoulder Impairment
Plaintiff asserts that the ALJ failed to inquire as to the severity of Plaintiff’s left
85 Kathleen v. Saul, Civ. No. 3:19-cv-00651-JLS-RNB, 2020 WL 353602, at *7 (S.D. Cal. Jan. 21,
2020) (“As Plaintiff does not claim the ALJ improperly applied the Plaintiff’s drug or alcohol
dependence in his disability determination, SSR 13-2p is not binding.”) (citing Martinez v. Colvin,
Civ. No. 6:14-cv-01703-MC, 2016 WL 270911, at *5 (D. Or. Jan. 20, 2016) (“Plaintiff made no
claims that there were misinterpretations of policies relating to drug addiction and alcoholism in
this case. Therefore, SSR 13-2p is inapplicable here and does not change this Court’s application
of Lockwood. . .”); Hollen v. Comm'r of Soc. Sec., 2017 WL 1075194, at *8–9 (S.D. Cal. Mar. 22,
2017) (“[A]s SSR 13-2p does not mandate the ALJ follow HALLEX procedures, the ALJ did not
err by refusing to summarize Plaintiff’s subjective testimony for the ME.”). 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).
86 See, e.g., Wilson v. Berryhill, 732 F. App'x 504, 507 (9th Cir. 2018); Withrow v. Colvin, 672 F.
App'x 748, 749 (9th Cir. 2017); Whitten v. Colvin, 642 F. App'x 710, 713 (9th Cir. 2016); Durden v.
Colvin, 546 F. App'x 690, 690-91 (9th Cir. 2013).
87 See James v. Saul, Civ. No. 19-cv-5881-KS, 2020 WL 3491565, at *10 (C.D. Cal., June 25,
2020) (HALLEX and POMS “are not binding on ALJs and are not legally enforceable by federal
courts.”).
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shoulder impairment and failed to adequately evaluate the resulting limitations in the RFC
because testifying medical expert Dr. Golub only addressed Plaintiff’s right shoulder
impairment in his testimony.88 A court should affirm an ALJ’s determination of a claimant’s
RFC “if the ALJ applied the proper legal standard and [her] decision is supported by
substantial evidence.”89 “In assessing RFC, the adjudicator must consider limitations and
restrictions imposed by all of an individual’s impairments, even those that are not
severe.”90 However, it is “proper for an ALJ to limit a hypothetical to those impairments
that are supported by substantial evidence in the record.”91
Here, Dr. Golub testified that Plaintiff had a history of an unstable right shoulder
and that he believed Plaintiff “even had a surgical procedure” for that shoulder. Dr. Golub
opined that Plaintiff’s right shoulder impairment was not severe but nonetheless caused
some limitations with raising his right shoulder above his head and lifting heavy objects.
Dr. Golub also testified that Plaintiff should be limited to lifting and carrying 10 pounds
frequently and 20 pounds occasionally for both upper extremities, not just the right side.
But then he added, “But just the use of that function that would recruit that right shoulder,
would have to be on an occasional basis. The other shoulder would not [be] [a]ffected.”92
88 Docket 21 at 9–11.
89 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)).
90 SSR 96-8p, 1996 WL 374184, at *5 (July 2, 1996); Buck v. Berryhill, 869 F.3d 1040, 1049 (9th
Cir. 2017).
91 Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001).
92 A.R. 43, 45-46.
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Later in the hearing, Plaintiff made an effort to correct Dr. Golub’s testimony regarding
Plaintiff’s shoulders. Specifically, Plaintiff stated, “[u]nfortunately, the doctor had [ ]
incorrect information given to him. It was my left shoulder that was operated on, not my
right.” Plaintiff further clarified that his left shoulder had multidirectional instability and his
right shoulder had a torn ligament.93 The record supports Plaintiff’s testimony. For
example, Plaintiff’s VA disability report noted that Plaintiff had a left shoulder condition
with multiple surgeries, an abnormal range of motion in the left shoulder, and difficulty
lifting and reaching with the left shoulder.94 At an examination on January 12, 2016,
Plaintiff’s treating orthopedic surgeon, Edward Homan, M.D., observed “very obvious
multidirectional instability of [Plaintiff’s] left shoulder but less obvious with the right.” Dr.
Homan also noted a possible right shoulder rotator cuff tear.”95
At the hearing, the ALJ did not elicit any additional information from Plaintiff or Dr.
Golub regarding Plaintiff’s left shoulder.96 The ALJ did not include any limitations for the
bilateral upper extremities in the hypotheticals provided to the VE, even though Dr. Golub
testified to functional limitations for both upper extremities and the ALJ found Dr. Golub’s
testimony very persuasive.97 As a result, the RFC includes only a limitation of frequent
93 A.R. 52.
94 A.R. 402, 408–09.
95 A.R. 731.
96 42–54.
97 A.R. 21, 45.
The ALJ’s first hypothetical to the VE was as follows:
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reaching in all directions with the right upper extremity.98 The ALJ did not adequately
include Plaintiff’s bilateral limitation of the upper extremities in the RFC. The ALJ’s failure
to address Plaintiff’s left shoulder impairment is not harmless and is reversable error.99
D. Duty to Develop the Record
Plaintiff asserts that he was prejudiced by the ALJ’s failure to inquire into the
relevant facts at the hearing regarding Plaintiff’s limitations, including limitations with
standing and walking due to shin splints; back pain; chronic knee pain; flat footedness;
and mental impairments.100 The ALJ has an “independent duty to fully and fairly develop
the record and to assure that the claimant’s interests are considered.”101 However, 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
So, for the first hypothetical, let’s assume that we have an individual of the same
age, education, and work experience as that of [Plaintiff], and who is limited to . . .
medium level work with the occasional climbing of ladders, ropes, or scaffolds,
frequent kneeling, frequent crouching, and crawling. And this person is limited to
frequent right reaching in all directions. This person is to avoid concentrated
exposure to hazards, such as machinery and unprotected heights. A.R. 55–56.
The ALJ followed up with a hypothetical limiting the individual to occasional contact with the
general public and another hypothetical substituting light work for medium work, but she did not
change any of the exertional limitations. A.R. 58.
98 A.R. 20.
99 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015).
100 Docket 21 at 9–12.
101 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (internal citations and quotations
omitted).
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evidence.”102 And yet when a claimant is unrepresented, the ALJ has a heightened duty
“to scrupulously and conscientiously probe into, inquire of, and explore for all the relevant
facts” to protect the claimant’s interests.103 This includes ensuring that both favorable
and unfavorable facts and circumstances are addressed at the administrative hearing.104
“The ALJ’s duty to develop the record fully is also heightened where the claimant may be
mentally ill and thus unable to protect [his] own interests.”105
1. Plaintiff’s Other Physical Impairments
In his testimony, Dr. Golub acknowledged Plaintiff’s sleep apnea for which Plaintiff
had a CPAP. He also noted Plaintiff’s knee pain, but concluded the knee pain “was not
evaluated in any great sense.” Dr. Golub also acknowledged a diagnosis of keratoconus
in both eyes in the record, but he concluded Plaintiff’s visual acuity was within normal
limits and “there was no action to be taken.” He stated, “I believe the comment was to
follow or continue to observe.” Dr. Golub testified that he “didn’t see anything for both of
those complaints” regarding tinnitus, migraines, and flat feet, in the record.106
Plaintiff testified that he had received a 100% VA disability rating and had been
treated for sleep apnea; flat footedness bilaterally; chronic knee, hip, and shin pain; and
102 McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (internal citations omitted).
103 Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 1978) (citation omitted); see also Vidal v. Harris,
637 F.2d 710, 713 (9th Cir. 1981); Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985).
104 Cox, 587 F. 2d at 991.
105 Tonapetyan, 242 F.3d at 1150.
106 A.R. 43–44. The Court assumes that Dr. Golub intended to testify that he didn’t see “anything”
in the record regarding all three complaints — tinnitus, migraines, and flat feet.
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lower and upper back pain.107 Contrary to Dr. Golub’s testimony, Plaintiff clarified at the
hearing that he had “keratoconus [in] both eyes, [for] which I did have surgery on my right
eye most recently, to halt the progression of the keratoconus.”108 Plaintiff’s testimony is
again supported by the record. In January 2016, treating physician Dr. Homan diagnosed
Plaintiff with laxity of all joints.109 Imaging during the relevant time period showed minimal
sclerosis and flattening of the second metatarsal head on the left foot; a right ankle
abnormality; disc space narrowing in the thoracic spine; and questionably fused facet
joints in the cervical spine.110 In February 2016, Plaintiff was diagnosed with bilateral pes
planus and reported to his provider that he experienced pain with walking and could not
walk more than 15-30 minutes before needing a break. Plaintiff was also diagnosed with
bilateral knee strain with abnormal range of motion in both knees and bilateral shin splints
with mild tenderness along the anterior tibia on examination.111 Again, the ALJ did not
follow up with Plaintiff or Dr. Golub regarding the additional impairments diagnosed in the
record and testified to by Plaintiff at the hearing.112 Given the “heavy burden” imposed
on the ALJ in the absence of legal representation and the facts of this case, the ALJ did
not adequately develop the record regarding Plaintiff’s physical impairments.
107 A.R. 51–52.
108 A.R. 52.
109 A.R. 732.
110 A.R. 804, 808, 811, 812.
111 A.R. 382–83, 390–92, 398.
112 A.R. 42–54.
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2. Mental Impairments
Plaintiff alleges that the ALJ “wholly failed to inquire further with respect to Plaintiff’s
mental impairment in light of persistent treatment, reported symptoms, medication
changes, and intermittent positive findings on mental status examinations.”113 Defendant
argues that the ALJ extensively discussed and evaluated Plaintiff’s mental impairments
at step two in the disability analysis and reasonably found them non-severe. Specifically,
Defendant asserts that under the new regulations effective March 27, 2017, “the focus at
step two is only on objective medical evidence” and that “‘[p]sychiatric signs’ are now
defined as ‘medically demonstrable phenomena’ and ‘must . . . be shown by observable
facts that can be medically described and evaluated.’”114
The ALJ determined that Plaintiff’s major depressive disorder and panic disorder
were non-severe.115 The ALJ discussed and explained the treatment notes addressing
Plaintiff’s mental impairments. She found persuasive the opinion of testifying medical
expert Dr. Buechner that Plaintiff’s mental limitations were mild and Plaintiff would not
experience any workplace limitations. The ALJ determined that the opinion was
113 Docket 21 at 12.
114 Docket 22 at 16, citing 20 C.FR. § 404.1521 (Jan. 18, 2017) (“[A claimant’s] impairment(s)
must result from anatomical, physiological, or psychological abnormalities that can be shown by
medically acceptable clinical and laboratory diagnostic techniques.”), 20 C.F.R. § 404.1502(f)
(Mar. 27, 2017) (“Objective medical evidence means signs, laboratory findings, or both.”), 20
C.F.R. § 404.1502(g) (Mar. 27, 2017) (“Psychiatric signs are medically demonstrable phenomena
that indicate specific psychological abnormalities, e.g., abnormalities of behavior, mood, thought,
memory, orientation, development, or perception, and must also be shown by observable facts
that can be medically described and evaluated.”).
115 A.R. 16–19.
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consistent with and supported by the evidence of record. Specifically, the ALJ noted that
Plaintiff showed “some variability in a depressed mood but all other symptoms are
typically reported as ‘historical.’”116
The Court’s review of the record shows that Plaintiff’s depression and anxiety
symptoms were not historical.117 For example, in December 2016, Plaintiff was
diagnosed with unspecified depressive disorder. Plaintiff reported that his current dose
of Prozac increased his headaches, but he was “okay with that for now because his mood
feels much better.”118 In January 2016, Plaintiff reported an “exacerbation of both
depression and anxiety over the last month.” He also reported that his fluoxetine
medication helped his depression, but it did “not seem to do anything for his anxiety.”119
Also in January 2016, screening tests showed a GAD score of 10, indicating moderate
anxious symptoms. His PHQ-9 score indicated moderately severe depressive
symptoms.120 In February 2016, Plaintiff attended a follow up behavioral health
appointment, reporting a low mood and requesting a transition to Wellbutrin.121 He was
116 A.R. 17.
117 E.g., A.R. 51, 420–27, 430–35, 488–98, 534–36, 538–41, 573–74, 579–82, 586–87, 595–98,
706–08, 723–30, 735–37, 1092–94.
118 A.R. 534.
119 A.R. 723.
120 A.R. 737.
121 A.R. 430.
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diagnosed with major depressive disorder, recurrent, moderate, with anxious distress.122
In May 2016, Plaintiff reported feeling “more depressed” and requested increasing his
dose of Wellbutrin despite reportedly suffering some nausea secondary to the
medication.123 In November 2016, Plaintiff was diagnosed with unspecified depressive
disorder.124 In July 2017, at a psychiatric appointment, Plaintiff reported feeling more
anxiety and sadness. His psychiatrist adjusted his medications.125 In November 2017,
Plaintiff was again diagnosed with unspecified depressive disorder. He reported being
more depressed after stopping his fluoxetine medication, but that his mood over the last
few weeks had been improving. He requested an increase in his anxiety medication.126
However, the Court’s review also reveals that Plaintiff’s mental status examinations
did not demonstrate “abnormalities of behavior, mood, thought, memory, orientation,
development, or perception” as medically described by Plaintiff’s providers.127 As shown
above, at visits from January 2016 through November 2017, Plaintiff reported varying
degrees of depression and anxiety symptoms. Plaintiff’s treating psychiatrist adjusted
Plaintiff’s medications frequently. However, also during this time period, Plaintiff’s treating
psychiatrist repeatedly noted on mental examination that Plaintiff was very pleasant and
122 A.R. 488.
123 A.R. 420.
124 A.R. 540.
125 A.R. 573–74.
126 A.R. 1092–93.
127 See 20 C.F.R. § 404.1502(g) (Mar. 27, 2017).
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in no apparent physical distress or discomfort; Plaintiff described his mood as numb; his
affect was restricted but pleasant; he demonstrated good insight and judgment; he
showed no obvious cognitive effects; and he expressed no suicidal or homicidal
ideation.128 Plaintiff reported that his “depression and anxiety together cause me to be
unable to be around other people,” but also demonstrated pleasant behavior and good
insight and judgment at his psychiatric appointments.129 He reported working in 2014 for
his wife, planning a business that he and his wife had been saving for, and planning a
new house.130 Plaintiff also reported being able to handle changes in routine.131
In sum, the ALJ fulfilled her heightened duty “to scrupulously and conscientiously
probe into, inquire of, and explore for all the relevant facts” with respect to Plaintiff’s
mental impairments.132 The ALJ fully and fairly developed the record regarding Plaintiff’s
mental impairments and substantial evidence supports the ALJ’s finding that Plaintiff’s
mental impairments were non-severe.
E. Prejudice or Unfairness Due to Lack of Counsel
Plaintiff also alleges that he was prejudiced by his lack of counsel. Specifically,
without counsel, he asserts that he did not know to object to the ALJ proceeding with the
128 E.g., A.R. 420–27, 430–35, 488–98, 534–36, 538–41, 573–74, 579–82, 586–87, 595–98, 706–
08, 723–30, 735–37, 1092–94.
129 A.R. 321. See n. 116.
130 A.R. 18, 491, 589.
131 A.R. 301.
132 Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 1978) (citation omitted); see also Vidal v. Harris,
637 F.2d 710, 713 (9th Cir. 1981); Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985).
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testimony of the medical experts before his own testimony and was unable to question
the medical experts about all of the relevant facts and all of his impairments.133 In this
case, counsel for Plaintiff could have obtained additional testimony from Dr. Golub and
Plaintiff regarding Plaintiff’s limitations, particularly the functional limitations associated
with Plaintiff’s left shoulder. Counsel could have elicited testimony from the VE based on
a hypothetical including bilateral upper extremity limitations. Plaintiff has demonstrated
prejudice and unfairness in the administrative proceeding as a result of not having
counsel present.134 Remand is appropriate on this ground as well.
F. Scope of Remand
Plaintiff asks the Court to vacate the final agency decision and remand to the
Commissioner for a de novo hearing with Plaintiff’s counsel present.135 The “ordinary
remand rule” applies to disability cases. Under this rule, if “the reviewing court simply
cannot evaluate the challenged agency action on the basis of the record before it, the
proper course, except in rare circumstances, is to remand to the agency for additional
investigation or explanation.”136 In this case, Plaintiff was prejudiced by the ALJ’s failure
to postpone his administrative hearing to obtain counsel. And the ALJ did not adequately
consider all of Plaintiff’s physical impairments. Because outstanding issues remain and
133 Docket 21 at 5–6.
134 Vidal, 637 F.2d at 714–15.
135 Docket 21 at 15.
136 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014) (quoting Fla.
Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)).
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it is not clear from the record that the ALJ would be required to find Plaintiff disabled, the
proper remedy is reversal and remand for a de novo hearing with Plaintiff’s counsel
present.
V. ORDER
The Court, having carefully reviewed the administrative record, finds that the ALJ’s
determinations are not free from legal error and not supported by substantial evidence in
the record. Accordingly, IT IS ORDERED that Plaintiff’s request for relief at Docket 21
GRANTED, the Commissioner’s motion at Docket 22 is DENIED, and this matter is
REMANDED for further proceedings consistent with this order.
The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 4th day of November, 2021, at Anchorage, Alaska.
/s/ Sharon L. Gleason ___________
UNITED STATES DISTRICT JUDGE
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