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1 – OPINION & ORDER
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MARIAH C.,1
Case No. 6:24-cv-01927-AB
Plaintiff,
OPINION & ORDER
v.
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant.
Nancy J. Meserow
Law Office of Nancy J. Meserow
7540 SW 51st Avenue
Portland, OR 97219
Attorney for Plaintiff
Kevin C. Danielson
Assistant United States Attorney
District of Oregon
1000 SW Third Avenue, Suite 600
Portland, OR 97204
1 In the interest of privacy, this Opinion uses only the first name and the initial of the last
name of the non-governmental party or parties in this case. Where applicable, this Opinion uses
the same designation for a non-governmental party’s immediate family member.
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2 – OPINION & ORDER
Noah Schabacker
Office of Program Litigation, Office 7
Office of the General Counsel
Social Security Administration
6401 Security Boulevard
Baltimore, MD 21235
Attorneys for Defendant
BAGGIO, District Judge:
Plaintiff Mariah C. brings this action seeking judicial review of the Commissioner’s final
decision to deny disability insurance benefits (“DIB”). This Court has jurisdiction pursuant to 42
U.S.C. § 405(g). The Court reverses the Commissioner’s decision and remands this case for
immediate payment of benefits.
PROCEDURAL BACKGROUND
Plaintiff applied for DIB on May 29, 2018, alleging an onset date of October 11, 2017.
Tr. 70-71.2 Plaintiff’s date last insured (“DLI”) is December 31, 2027. Tr. 1691. Her application
was denied initially and on reconsideration. Tr. 112-121.
On March 21, 2021, Plaintiff appeared with counsel for a hearing before an
Administrative Law Judge (“ALJ”). Tr. 30-68. On April 12, 2021, the ALJ found Plaintiff not
disabled. Tr. 10-23. The Appeals Council denied review. Tr. 1. Plaintiff appealed, and this Court
remanded the ALJ’s decision for further proceedings. Tr. 1780-95. On September 12, 2024,
Plaintiff appeared with counsel for her second hearing before an ALJ. Tr. 1718-51. On
September 18, 2024, the ALJ again found Plaintiff not disabled. Tr. 1688-1708. This timely
appeal followed. Compl., ECF No. 1.
2 Citations to “Tr.” refer to the page(s) indicated in the official transcript of the
administrative record, filed herein as ECF No. 8.
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FACTUAL BACKGROUND
Plaintiff alleges disability based on fibromyalgia; chronic headaches; anxiety with panic
attacks; irritable bowel syndrome; nausea; vomiting; muscle spasms; weakness and chronic
fatigue; insomnia; difficulty focusing, concentrating, and remembering; depression;
hypermobility; and pain in her jaw, neck, shoulders, back, and legs. Tr. 71. At the time of her
alleged onset date, she was 35 years old. Tr. 70. She has at least a high school education and past
relevant work experience as a veterinary assistant. Tr. 1706.
SEQUENTIAL DISABILITY EVALUATION
A claimant is disabled if they are unable to “engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which . . . has lasted or can
be expected to last for a continuous period of not less than 12 months . . . .” 42 U.S.C.
§§ 423(d)(1)(A), 1382c(a)(3)(A). Disability claims are evaluated according to a five-step
procedure. See Valentine v. Comm’r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases,
agency uses five-step procedure to determine disability). The claimant bears the ultimate burden
of proving disability. Id.
In the first step, the Commissioner determines whether a claimant is engaged in
“substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137,
140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines
whether the claimant has a “medically severe impairment or combination of impairments.”
Yuckert, 482 U.S. at 140–41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not
disabled. Id.
In step three, the Commissioner determines whether the claimant’s impairments, singly
or in combination, meet or equal “one of a number of listed impairments that the [Commissioner]
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acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141;
20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if
not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
In step four, the Commissioner determines whether the claimant, despite any
impairment(s), has the residual functional capacity (RFC) to perform their “past relevant work.”
20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can perform past relevant work, the
claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to
the Commissioner. In step five, the Commissioner must establish that the claimant can perform
other work. Yuckert, 482 U.S. at 141–42; 20 C.F.R. §§ 404.1520(e)–(f), 416.920(e)–(f). If the
Commissioner meets their burden and proves that the claimant can perform other work that
exists in the national economy, then the claimant is not disabled. 20 C.F.R. §§ 404.1566,
416.966.
THE ALJ’S DECISION
At step one, the ALJ determined that Plaintiff had engaged in substantial gainful activity
after her alleged onset date during the second quarters of 2023 and 2024. Tr. 1691. The ALJ,
however, also concluded there had been a continuous 12-month period where Plaintiff did not
engage in substantial gainful activity. Tr. 1691-92. Next, at steps two and three, the ALJ
determined that Plaintiff has the following severe impairments: “multi-level degenerative disc
disease; small fiber neuropathy; tension headaches; fibromyalgia; chronic fatigue syndrome;
major depressive disorder; panic disorder with agoraphobia; post-traumatic stress disorder
(PTSD).” Tr. 1692. However, the ALJ determined that Plaintiff’s impairments did not meet or
medically equal the severity of a listed impairment. Tr. 1693-96. At step four, the ALJ concluded
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that Plaintiff has the residual functional capacity to perform light work as defined in 20 C.F.R.
§§ 404.1567(b) with the following limitations:
[L]ifting/carrying/pushing/pulling of 20 pounds occasionally and 10 pounds or less
frequently, can sit 6 hours in an 8-hour workday, can stand/walk in combination 6
hours in an 8-hour workday, except she can occasionally climb ramps and stairs,
must avoid ladders, ropes, and scaffolds, can occasionally stoop, kneel, crouch, and
crawl; is limited to simple and routine tasks, simple work-related decisions,
occasional interaction with coworkers, supervisors, and the general public, and
would be off task up to 5% of the workday.
Tr. 1696.
Because of these limitations, the ALJ concluded that Plaintiff could not perform her past
relevant work. Tr. 1706. But at step five, the ALJ found that there are jobs that exist in
significant numbers in the national economy that Plaintiff can perform, such as routing clerk,
router, and marker. Tr. 1707. Thus, the ALJ concluded that Plaintiff is not disabled. Tr. 1708.
STANDARD OF REVIEW
A court may set aside the Commissioner’s denial of benefits only when the
Commissioner’s findings “are based on legal error or are not supported by substantial evidence
in the record as a whole.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal
quotation marks omitted). “Substantial evidence means more than a mere scintilla but less than a
preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Id. (citation and internal quotation marks omitted). The court considers
the record as a whole, including both the evidence that supports and detracts from the
Commissioner’s decision. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). “Where
the evidence is susceptible to more than one rational interpretation, the ALJ’s decision must be
affirmed.” Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also
Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (“Where the evidence as a whole can
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support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ’s.”)
(internal quotation marks omitted).
DISCUSSION
Plaintiff argues that the ALJ erred in (1) discounting Plaintiff’s subjective symptom
testimony as to her migraines and headaches and (2) failing to apply Social Security Ruling
(“SSR”) 19-4p when evaluating whether Plaintiff’s migraines and tension headaches equaled
Listing 11.02B at step three. The Court agrees.3
I. Subjective Symptom Testimony
The ALJ is responsible for evaluating symptom testimony. SSR 16-3p, 2017 WL
5180304, at *1 (Oct. 25, 2017). The ALJ engages in a two-step analysis for subjective symptom
evaluation. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012), superseded on other grounds
by 20 C.F.R. § 404.1502(a). First, the ALJ determines whether there is “objective medical
evidence of an underlying impairment which could reasonably be expected to produce the pain
or other symptoms alleged.” Id. (internal quotations omitted). Second, “if the claimant has
presented such evidence, and there is no evidence of malingering, then the ALJ must give
specific, clear and convincing reasons in order to reject the claimant’s testimony about the
severity of the symptoms.” Id. (internal quotations omitted).
When evaluating subjective symptom testimony, “[g]eneral findings are insufficient.”
Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (quoting Lester v. Chater, 81 F.3d 821, 834
(9th Cir. 1995) superseded on other grounds as recognized by Arnott v. O’Malley, No. 23-15814,
2024 WL 2237720 (9th Cir. May 17, 2024)). “An ALJ does not provide specific, clear, and
3 The Court limits its discussion to the ALJ’s analysis of Plaintiff’s subjective symptom
testimony and step three findings regarding Plaintiff’s primary headache disorder as both issues
are dispositive in this case.
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convincing reasons for rejecting a claimant’s testimony by simply reciting the medical evidence
in support of his or her residual functional capacity determination.” Brown-Hunter v. Colvin, 806
F.3d 487, 489 (9th Cir. 2015). Instead, “the ALJ must specifically identify the testimony she or
he finds not to be credible and must explain what evidence undermines the testimony.” Holohan
v. Massanari, 246 F.3d 1195 (9th Cir. 2001); see also Orteza v. Shalala, 50 F.3d 748, 750 (9th
Cir. 1995) (holding the reasons proffered must be “sufficiently specific to permit the reviewing
court to conclude that the ALJ did not arbitrarily discredit the claimant’s testimony”).
Plaintiff suffers from unpredictable, chronic pain caused in part by tension headaches and
migraines. Tr. 37, 283. Her tension headaches are chronic and recurring, making it difficult for
Plaintiff to concentrate and focus. Tr. 38, 283. Activity triggers her headaches. Tr. 283.
Plaintiff’s migraines began after a concussion in 2020. Tr. 38, 615, 805. Though her migraines
have improved slightly over time, Plaintiff testified at her second hearing that she usually has
two or three migraines per week. Tr. 1727. But this number can fluctuate. Some weeks, she will
“get four or five.” Tr. 1727. When Plaintiff is lucky, she may go a week without any migraines at
all. Tr. 1727. Her tension headaches, by comparison, are always in the background and have not
improved. Tr. 1727. Though Plaintiff takes medication, it does an inadequate job of treating and
preventing her pain. Tr. 283. But she cannot manage even minor tasks without it. Tr. 283. The
medication also causes side effects. It makes her feel “fuzzy and clouded,” dizzy, fatigued, and
forgetful. Tr. 283.
Plaintiff has worked part-time in a veterinarian’s office throughout the relevant period
with a flexible schedule and duties. At the time of the second hearing, Plaintiff was working two
to three non-consecutive six-hour shifts a week. Tr. 1725. She testified that she cannot work full
time because she cannot work on consecutive days due to her headaches and chronic pain. Tr.
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1725. Her pain and fatigue are worse the day after a shift. Tr. 1726. Because of her migraines,
Plaintiff sometimes has to leave work early to lay in a dark room with no stimulation. Tr. 1726.
Her employer is accommodating. Tr. 53.
Plaintiff lives with her son, who was 12 years old at the time of the first hearing in 2021.
Tr. 35. Beginning with her 2018 function report, Plaintiff consistently notes that her son helps
with her daily activities. Even at age ten, Plaintiff’s son would help care for the cat and do
laundry. Tr. 284, 286. As he has gotten older, he continues to help by putting groceries away,
cooking some of their meals, and completing household chores and yardwork. Tr. 42-43, 1738.
Friends and family also help Plaintiff by picking up her son from school and helping with tasks
around the house. Tr. 45, 284, 1738. She also has groceries delivered to their home, and friends
help with cleaning and yardwork. Tr. 42-43, 284, 285. Plaintiff cooks some of their meals, but
most are frozen or simple. Tr. 42, 285. Plaintiff only does light chores. Tr. 1739.
Plaintiff otherwise spends her days taking her son to school, going to medical
appointments, playing board games, reading, going to church, visiting her parents, and caring for
her small pets. Tr. 284, 287, 1739. She enjoys writing, sketching, helping her son with
homework, birdwatching, and spending time outside. Tr. 45. Plaintiff sometimes goes to movies
and concerts. Tr. 1739. She naps every day. Tr. 55.
The ALJ gave three reasons for discounting Plaintiff’s subjective symptom testimony as
to her migraines. First, the ALJ found that Plaintiff’s activities of daily living are greater than
alleged and conflict with her reports of difficulty functioning due to migraines. Tr. 1701. Second,
the ALJ found that Plaintiff’s testimony that her “constant headache and frequent migraines
prevented all activities but recovery in a dark room” conflicted with chart notes that she was
“consistently in no acute distress, able to speak in full sentences, alert and oriented, and had
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normal concentration.” Tr. 1699. Third, the ALJ emphasized that Plaintiff reported relief from
headaches with Botox treatment. Tr. 1699. As none of these reasons are supported by substantial
evidence in the record, the Court finds that the ALJ erred in discounting Plaintiff’s subjective
symptom testimony.
A. Activities of Daily Living
Contradiction with a claimant’s activities of daily living is a clear and convincing reason
for rejecting a claimant’s testimony. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008).
There are two grounds for using daily activities to form the basis of an adverse credibility
determination: (1) when activities meet the threshold for transferable work skills and (2) when
activities contradict a claimant’s other testimony. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir.
2007). However, “disability claimants should not be penalized for attempting to lead normal
lives in the face of their limitations,” Reddick, 157 F.3d at 722, and “the mere fact that a plaintiff
has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking
or exercise does not in any way detract from [their] credibility,” Webb v. Banhart, 433 F.3d 693,
688 (9th Cir. 2005) (citing Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001)). In order to
impact a claimant’s credibility, the activity has to be “inconsistent with claimant’s claimed
limitations.” Reddick, 157 F.3d at 722. The ALJ cannot mischaracterize statements and
documents in the record or take these out of context in order to reach his conclusion on the
claimant’s credibility. Id. at 722–23
Here, the ALJ found that “[t]he record reflects greater activities than alleged,” which
“conflict with [Plaintiff’s] reports of difficulty with even basic functioning, and frequent
prostrating migraines.” Tr. 1701. In so finding, the ALJ specifically cited Plaintiff’s ability to
“parent her child as a single parent,” including making her child breakfast, driving, and handling
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household chores. Tr. 1701. He also cited Plaintiff’s ability to bike and participate in dances. Tr.
1701. The ALJ reasoned that these activities do “not support her reports of extreme weakness,
fatigue, and migraines, with inability to lift, bend, and pull.” Tr. 1701. While the ALJ
acknowledged that Plaintiff’s “symptoms wax and wane” and that Plaintiff “often recovers the
day after an activity,” he concluded that Plaintiff’s “regular functioning generally supports the
above residual functional capacity assessment.” Tr. 1701.
The ALJ erred in discounting Plaintiff’s testimony regarding her migraine symptoms
because of her activities of daily living. Turning first to Plaintiff’s ability to care for her son, the
Court finds that the ALJ misconstrued the record. Plaintiff described receiving significant help
from friends and family with taking care of her family’s needs. Tr. 42-43, 45, 284-85, 1738. And
from age ten, Plaintiff’s son helped with many household chores. Tr. 42-43, 284, 286, 1738.
Plaintiff’s activities are limited to simple, nonstrenuous tasks. Tr. 42, 285 (describing cooking
only simple, frozen meals and limited household chores), 1739 (does light chores). These limited
activities in caring for herself and her child are not inconsistent with Plaintiff’s testimony that
she suffers from sudden, frequent migraines and often needs to lay in a dark room without
stimulation.
As to Plaintiff’s ability to bike and dance, however, the ALJ reasonably describes
Plaintiff’s statements to medical providers regarding these activities. In 2019, Plaintiff reported
to one medical provider that she was “feeling a little better after riding bike.” Tr. 434. She told
another that she cycles in the summer. Tr. 720. And to her mental health providers in 2019 and
early 2020, Plaintiff reported doing Zumba when she could, Tr. 720, dancing for two weeks
straight, Tr. 787, and swing dancing on four other occasions, Tr. 782, 799, 2614, 2616. These
notes, however, are largely from 2019 and early 2020 and predate Plaintiff’s migraines, which
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began after a concussion in November 2020. Tr. 615, 805. In addition, most of these records are
mental health treatment notes from a short window of time after the loss of Plaintiff’s fiancé. Tr.
739, 781-799. And in a more recent chart note from 2022, Plaintiff explained that after she
worked a full day and went swing dancing the following day, she was “paying the price” for not
doing enough to rest or recover. Tr. 2616. These records, standing alone, do not constitute
substantial evidence. Therefore, the Court finds that the ALJ erred in concluding that Plaintiff’s
subjective symptom testimony was inconsistent with her activities of daily living.
B. Objective Medical Evidence
The ALJ is instructed to consider objective evidence in considering a claimant’s
symptom allegations. 20 C.F.R. § 416.929(c)(2) (“Objective medical evidence . . . is a useful
indicator to assist us in making reasonable conclusions about the intensity and persistence of
your symptoms . . . .”). Inconsistency between Plaintiff’s testimony and the objective medical
record is a valid reason to discount Plaintiff’s testimony. See Connett v. Barnhart, 340 F.3d 871,
874 (9th Cir. 2003) (affirming the ALJ’s credibility finding where the plaintiff’s testimony of
weight fluctuation was inconsistent with the medical record). And under certain circumstances,
the ALJ can discount claimant testimony when that testimony is not supported by the objective
medical record. See Batson v. Comm’r, 359 F.3d 1190, 1196 (9th Cir. 2007) (“‘Graphic and
expansive’” pain symptoms could not be explained on objective, physical basis by claimant’s
treating physician); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (finding the ALJ could
consider mild findings on MRIs and X-rays in discounting the plaintiff’s testimony as to her
back pain). However, this may not be the ALJ’s sole reason for discounting a claimant’s
testimony: “[T]he Commissioner may not discredit the claimant’s testimony as to the severity of
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symptoms merely because they are unsupported by objective medical evidence.” Reddick, 157
F.3d at 722.
The ALJ concluded that Plaintiffs’ migraines and headaches were inconsistent with
providers’ notes that Plaintiff was in no acute distress, able to speak in full sentences, alert and
oriented, and had normal coordination. Tr. 1699. But these chart notes are from mental status
exams, which are “used to evaluate the patient’s level of consciousness and the content of the
consciousness.” George Newman, M.D., Ph.D., How to Assess Mental Status, Merck Manual:
Professional Edition (Aug. 2025), https://perma.cc/EY2J-EVBS. Specifically, the mental status
exam asks whether a patient is “alert” or “actively perceiving the world around them and able to
anticipate the examiners and their own next actions.” Id. The exam also asks whether there are
any suggestions of cognitive decline. Id. A normal mental status exam—i.e. the patient is not
unconscious and there is no indication of cognitive decline—is not inconsistent with Plaintiff’s
migraines or headaches. The ALJ, therefore, erred in discounting Plaintiff’s subjective symptom
testimony because of Plaintiff’s normal mental status exams.
C. Effective Treatment
The ALJ may rely on evidence of effective treatment. See Orteza, 50 F.3d at
750 (“Factors that the adjudicator may consider when making such credibility determinations
include the . . . effectiveness or adverse side effects of any pain medication.”); Tommasetti, 533
F.3d at 1040 (finding claimant’s testimony undermined by the fact he responded well to
conservative treatment). But where “[c]ycles of improvement and debilitating symptoms are a
common occurrence,” an ALJ errs by “pick[ing] out a few isolated instances of improvement
over a period of months or years and . . . treat[ing] them as a basis for concluding a claimant is
capable of working.” Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014).
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Here, the ALJ’s conclusion is not supported by substantial evidence in the record. In his
decision, the ALJ cites a single treatment note that Plaintiff was “getting [B]otox[,] which
provides relief from headaches.” Tr. 3944. But this note was from a registered dietician who
helped Plaintiff adjust her diet to manage her fibromyalgia. Tr. 3944. And this isolated note
conflicts with the rest of Plaintiff’s treatment records, which show that Botox injections
improved—but did not eliminate—Plaintiff’s migraines and tension headaches. See, e.g., Tr.
3984, 4036, 4410. Consistent with Plaintiff’s hearing testimony, Plaintiff’s migraines reduced by
about half but still occurred seven times per month on average after her Botox injections. Tr.
4410 (noting reduction in migraine frequency by 50%, but still having approximately seven per
month). The ALJ therefore erred in discounting Plaintiff’s testimony regarding her migraines
because of a single chart note from her dietician.
In sum, the ALJ has not provided clear or convincing reasons supported by substantial
evidence for discounting Plaintiff’s subjective symptom testimony. The Court finds that the ALJ
erred.
II. Step Three
At step three of the sequential analysis, if a claimant meets or medically equals a listed
impairment, then they are presumed disabled regardless of their age, education, and work
experience. 20 C.F.R. § 404.1520(a)(4)(iii), (d). A claimant bears the burden of producing
medical evidence to establish all of the requisite medical findings that their impairments meet or
equal any particular listing. Yuckert, 482 U.S. at 146, n.5. An impairment, or combination of
impairments, is medically equivalent to a listing “if it is at least equal in severity and duration to
the criteria of any listed impairment,” considering, “all evidence in [the] case record about [the]
impairment(s) and its effects on [the claimant] that is relevant . . . .” 20 C.F.R. § 404.1526(a), (c).
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Finally, “the claimant’s illnesses ‘must be considered in combination and must not be
fragmentized in evaluating their effects.’” Lester, 81 F.3d at 829 (quoting Beecher v. Heckler,
756 F.2d 693, 694–95 (9th Cir.1985)). “Listed impairments are purposefully set at a high level of
severity because ‘the listings were designed to operate as a presumption of disability that makes
further inquiry unnecessary.’” Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013) (quoting
Sullivan v. Zebley, 493 U.S. 521, 531 (1990)). “Listed impairments set such strict standards
because they automatically end the five-step inquiry, before residual functional capacity is even
considered.” Id.
Here, Plaintiff argues the ALJ erred in assessing whether Plaintiff’s headaches meet or
medically equal a listed impairment. Pl.’s Br. 1-12, ECF No. 9. SSR 19-4p addresses primary
headache disorders and identifies Listing 11.02 for epilepsy as being “the most closely
analogous.” See SSR 19-4p, 2019 WL 4169635. Relevant here is Listing 11.02B, which requires
a documented detailed description of a seizure and seizures “occurring at least once a week for
three consecutive months despite adherence to prescribed treatment.” Listing 11.02B, 20 C.F.R.
§ Pt. 404, Subpt. P, App. 1. To determine “whether a primary headache disorder is equivalent in
severity and duration to the criteria in Listing 11.02B,” the agency will consider:
[A] detailed description from an [acceptable medical source] of a typical headache
event, including all associated phenomena (for example, premonitory symptoms,
aura, duration, intensity, and accompanying symptoms); the frequency of headache
events; adherence to prescribed treatment; side effects of treatment (for example,
many medications used for treating a primary headache disorder can produce
drowsiness, confusion, or inattention); and limitations in functioning that may be
associated with the primary headache disorder or effects of its treatment, such as
interference with activity during the day (for example, the need for a darkened and
quiet room, having to lie down without moving, a sleep disturbance that affects
daytime activities, or other related needs and limitations).
SSR 19-4p.
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Here, the ALJ stated that “the record does not contain objective evidence to support the
claimant’s alleged headache frequency and severity.” Tr. 1694. The ALJ then explained that
Plaintiff was in no acute distress, was able to speak in full sentences, was alert and oriented, and
had normal coordination at various places in the record. Tr. 1694. He concluded that these
normal mental status exams do not “support such frequency and duration of headache
symptoms.” Tr. 1694. The Commissioner makes a similar argument in his brief. See Def.’s Br. 5,
ECF No. 15.
As explained above, the ALJ erred in focusing on Plaintiff’s normal mental status exams
to discount the severity of Plaintiff’s headache disorder. See supra Part I. Moreover, SSR 19-4p
and Listing 11.02B do not require Plaintiff to show that she was in acute distress, lacked the
ability to speak in full sentences, was not alert and oriented, or lacked normal coordination.
Indeed, Plaintiff’s cognitive functioning has little bearing on the diagnosis, evaluation,
frequency, or duration of Plaintiff’s migraines and headaches. See SSR 19-4p. In sum, the ALJ
erred in his assessment of whether Plaintiff met the requirements of Listing 11.02B.
In addition, the record shows that Plaintiff meets all the criteria of Listing 11.02B as
described by SSR 19-4p. Turning first to the requirement that Plaintiff have a documented and
detailed description of her headaches, Plaintiff was observed by at least two different acceptable
medical sources having a typical tension headache event with accompanying symptoms,
including “increased tissue tension, altered tissue texture, asymmetrical temperature changes,
and . . . decreased range of motion and/or altered symmetry” in Plaintiffs head and neck. Tr.
4495; see, e.g., Tr. 2388-89, 2409, 2471. Plaintiff also reported “squeezing, pressure like
headaches.” Tr. 1674. As to her migraines, Plaintiff reported migraines lasting all day, with light
and sound sensitivity, nausea and rare vomiting, and severe, throbbing bilateral pain. Tr. 1674.
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Plaintiff also documented the frequency of her headaches, noting at various places in the record
that they lasted for days and were occurring multiple times per week, every week. Tr. 655 (“near
constant” headaches), 702 (weekly headaches), 944 (headaches three to four times per week),
1674 (two days per week of severe migraines with nausea and sensitivity), 2327 (constant
headaches), 2379 (pain in back of head all the time), 3466-3478 (headache diary documenting
near daily headaches), 3566 (migraines fifteen days each month), 4041 (reporting fifteen
headaches per month lasting more than four hours), 4561-72 (headache diary documenting near
daily headaches).
Despite adherence to prescribed treatment—which has included opiate medication,
acupuncture, physical therapy, Botox injections, and chiropractic treatment—Plaintiff continued
to experience headaches. Tr. 3566. Even after some improvement after treatment with Botox,
Plaintiff experienced two headaches per week. Tr. 3984, 4036, 4410. And throughout Plaintiff’s
extensive medical history, there are multiple references to side effects from medication,
including brain fog, dizziness, drowsiness, fatigue, and nausea. Tr. 283, 289, 2233, 2812, 3139,
3566.
As to her limitations, Plaintiff testified that when her tension headaches become
migraines, she takes refuge in a dark room. Tr. 1726. Plaintiff requires assistance from family
and friends in her activities of daily living, and she can only do light chores. Tr. 42, 43, 45, 284-
286, 559, 849, 1738, 2332. And Plaintiff sometimes misses work or leaves early when
experiencing a headache episode. Tr. 365, 1726, 1950. In sum, looking to the specific evidence
that the agency considers in assessing whether a headache disorder meets a listing, see SSR 19-
4p, the record shows that Plaintiff meets the requirements of Listing 11.02B.
III. Remand for Benefits
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17 – OPINION & ORDER
The decision whether to remand for further proceedings or for immediate payment of
benefits is within the discretion of the court. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.
2000). To determine which type of remand is appropriate, the Ninth Circuit uses a three-part test.
Id. at 1020; see also Treichler v. Comm’r, 775 F.3d 1090, 1100 (2014) (finding the “credit-as-
true” rule has three steps). First, the ALJ must fail to provide legally sufficient reasons for
rejecting evidence, whether claimant testimony or medical opinion. Garrison, 759 F.3d at 1020.
Second, the record must be fully developed, and further administrative proceedings would serve
no useful purpose. Id. Third, if the case is remanded and the improperly discredited evidence is
credited as true, the ALJ would be required to find the claimant disabled. Id. To remand for an
award of benefits, each part must be satisfied. Id. The “ordinary remand rule” is the proper
course except in rare circumstances. Treichler, 775 F.3d at 1101 (finding that when all three
elements are met, “a case raises the ‘rare circumstances’ that allow us to exercise our discretion
to depart from the ordinary remand rule”).
Remand for immediate payment of benefits is appropriate in this case. First, as described
above, the ALJ erred in his rejection of Plaintiff’s subjective symptom testimony and in his
assessment of Plaintiff’s headaches and migraines at step three. Second, the record is fully
developed, and remand for additional proceedings would serve no useful purpose. Indeed, this is
the second appeal of this case, and the second time the Court has addressed the ALJ’s errors. See
Mariah C. v. Kijakazi, Case No. 6:22-cv-614-SI, 2023 WL 5827681 (D. Or. Sept. 8, 2023).
Further proceedings “would needlessly delay effectuating the primary purpose of the Social
Security Act,” which is “to give financial assistance to disabled persons. . . .” Holohan, 246 F.3d
at 1210. Finally, when crediting Plaintiff’s testimony as true and viewing the medical record as a
whole, substantial evidence demonstrates that Plaintiff meets or equals Listing 11.02B. Thus,
Case 6:24-cv-01927-AB Document 17 Filed 11/06/25 Page 17 of 18

18 – OPINION & ORDER
Plaintiff is “presumed disabled, and no further inquiry is necessary.” Baxter v. Sullivan, 923 F.2d
1391, 1395 (9th Cir. 1991); see also Zebley, 493 U.S. at 532 (emphasizing the listings were
“designed to operate as a presumption of disability that makes further inquiry unnecessary”).
Accordingly, the Court reverses the Commissioner’s decision and remands this case for an
immediate award of benefits.
CONCLUSION
Based on the foregoing, the Commissioner’s decision is REVERSED and REMANDED
for immediate payment of benefits.
IT IS SO ORDERED.
DATED this ____ day of November, 2025.
______________________________
AMY M. BAGGIO
United States District Judge
6th
Case 6:24-cv-01927-AB Document 17 Filed 11/06/25 Page 18 of 18