McAlees v. Saul

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
MANDY M. A. McALEES,
Plaintiff,
vs.
ANDREW SAUL1,
Commissioner of Social Security,
Defendant. 	Case No. 3:18-cv-00304-TMB
DECISION AND ORDER
On or about February 24, 2014, Mandy M.A. McAlees filed an application for
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“the Act”),
alleging disability beginning August 18, 2013.2 	Ms. McAlees has exhausted her
administrative remedies and filed a Complaint seeking relief from this Court.3
On May 8, 2019, Ms. McAlees filed an opening brief.4 The Commissioner filed an
Answer and a brief in opposition to Ms. McAlees’s opening brief.5 	Ms. McAlees filed a
one-paged reply.6 	Oral argument was not requested and was not necessary to the
1 Andrew Saul is now the 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).
2 Administrative Record (“A.R.”) 149, 606.
3 Docket 1 (Compl.).
4 Docket 15 (McAlees’s Opening Br.).
5 Docket 11 (Answer); Docket 16 (Def.’s Br.).
6 Docket 17 (Reply).
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Court’s decision. This Court has jurisdiction to hear an appeal from a final decision of the
Commissioner of Social Security.7 	For the reasons set forth below, Ms. McAlees’s
request for relief will be granted.
I. 	STANDARD OF REVIEW
A decision by the Commissioner to deny disability benefits will not be overturned
unless it is either not supported by substantial evidence or is based upon legal error.8
“Substantial evidence” has been defined by the United States Supreme Court as “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”9 Such evidence must be “more than a mere scintilla,” but may be “less than
a preponderance.”10 	In reviewing the agency’s determination, the Court considers the
evidence in its entirety, weighing both the evidence that supports and that which detracts
from the administrative law judge (“ALJ”)’s conclusion.11 If the evidence is susceptible to
more than one rational interpretation, the ALJ’s conclusion must be upheld.12 A reviewing
court may only consider the reasons provided by the ALJ in the disability determination
7 42 U.S.C. § 405(g).
8 Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citing Gonzalez v.
Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990)).
9 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)).
10 Perales, 402 U.S. at 401; Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975)
(per curiam).
11 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
12 Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citing Rhinehart v. Finch, 438 F.2d 920,
921 (9th Cir. 1971)).
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and “may not affirm the ALJ on a ground upon which he did not rely.”13 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.’”14
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
disability.15 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.16 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.17
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
13 Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).
14 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations
omitted).
15 42 U.S.C. § 423(a).
16 42 U.S.C. § 1381a.
17 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
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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.18
The Commissioner has established a five-step process for determining disability
within the meaning of the Act.19 A claimant bears the burden of proof at steps one through
four in order to make a prima facie showing of disability.20 	If a claimant establishes a
prima facie case, the burden of proof then shifts to the agency at step five.21 	The
Commissioner can meet this burden in two ways: “(a) by the testimony of a vocational
expert (“VE”), or (b) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt.
404, subpt. P, app. 2.”22 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 found that Ms. McAlees had not engaged in substantial gainful activity since
August 18, 2013, the alleged onset date.23
Step 2. 	Determine whether the claimant has a medically severe impairment or
combination of impairments. A severe impairment significantly limits a claimant’s physical
18 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
19 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
20 Treichler v. Comm’r of 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).
21 Treichler, 775 F.3d at 1096 n.1; Tackett, 180 F.3d at 1098 (emphasis in original).
22 Tackett, 180 F.3d at 1101.
23 A.R. 609.
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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. 	The ALJ determined that Ms. McAlees’s diabetes
mellitus, cellulitis, lymphedema, COPD, and obesity were severe impairments. The ALJ
found that Ms. McAlees’s right tibial fracture and hyperlipidemia were non-severe and her
fibromyalgia was not a medically determinable impairment.24
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. The ALJ determined that Ms. McAlees did not have an impairment or combination
of impairments that met or medically equaled the severity of a listed impairment.25
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.26 The ALJ concluded that Ms. McAlees had the RFC to perform light work with
limitations, including never climbing ladders, ropes, or scaffolds; avoiding all exposure to
24 Id.
25 Id.
26 20 C.F.R. § 404.1520(a)(4), 416.920(a)(4).
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moving and hazardous machinery and unprotected heights; avoiding concentrated
exposure to fumes and dust; and avoiding moderate exposure to non-weather related
extreme cold and extreme heat.27
Step 4. 	Determine whether the claimant is capable of performing past relevant
work. 	At this point, the analysis considers whether past relevant work requires the
performance of work-related activities that are precluded by the claimant’s RFC. 	If the
claimant 	can 	still 	do 	her 	past 	relevant 	work, 	the 	claimant 	is 	deemed 	not 	to 	be
disabled. Otherwise, the evaluation process moves to the fifth and final step. The ALJ
found that Ms. McAlees was capable of performing past relevant work as a tax preparer,
accounting supervisor, accounts receivable clerk, and cashier. 	The vocational expert
opined that if Ms. McAlees was limited to sedentary level work, she could perform all of
her past relevant work, except for her former cashier position.28
Step 5. 	Determine whether the claimant is able to perform other work in the
national economy in view of her age, education, and work experience, and in light of the
RFC. 	If 	so, 	the 	claimant 	is 	not 	disabled. 	If 	not, 	the 	claimant 	is 	considered
disabled. 	Because the ALJ found Ms. McAlees capable of past relevant work, the ALJ
did not proceed to step five.
27 A.R. 610.
28 A.R. 615.
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Based on the foregoing, the ALJ concluded that Ms. McAlees was not disabled
from August 18, 2013, the alleged onset date, through September 26, 2018, the date of
the decision.29
III. PROCEDURAL AND FACTUAL BACKGROUND
Ms. McAlees was born in 1978; she is currently 41 years old.30 She reported last
working as a tax preparer from December 2012 to April 2013. She also reported working
as an accounting supervisor, as an accounts receivable clerk, and cashier.31 	Ms.
McAlees initiated her application for disability benefits on or about February 24, 2014.32
This matter has been before the ALJ twice. The first hearing before the ALJ was held on
December 16, 2014 and continued to April 27, 2015.33 The ALJ issued his first decision
on June 23, 2015.34 In that opinion, the ALJ determined that Ms. McAlees could perform
light work with limitations and could perform her past relevant work as a tax preparer,
accounting supervisor, and accounts receivable clerk.35 	Ms. McAlees exhausted her
remedies and appealed to this Court. On June 26, 2017, this Court found that the ALJ’s
decision denying disability benefits was not supported by substantial evidence and
29 A.R. 615–16.
30 A.R. 149.
31 A.R. 177, 196, 615.
32 A.R. 149; supra note 2.
33 A.R. 33, 907.
34 A.R. 18–26.
35 A.R. 21, 25.
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remanded the matter for further proceedings, including “obtaining the medical records
from Ms. McAlees’s July 2015 hospitalization and follow-up related to cellulitis as well as
any records from the bariatric surgeon, Dr. Searles during the time frame at issue in this
case.”36 	On remand, the ALJ held two new hearings, one on March 9, 2018 and the
second on July 2, 2018.37 	He issued a new decision on September 26, 2018.38 	On
December 26, 2018, Ms. McAlees appealed to this Court; she is represented by counsel
in this appeal.39
The Medical Record
Although the Court’s review of the record is primarily focused on the time period
after the alleged onset date, the Court also considers the following relevant medical
evidence occurring before August 18, 2013:
On April 13, 2011, Ms. McAlees followed up with Barbara Novotny, M.D., at
Providence Family Medicine Center (“PFMC”) after a visit to the emergency department.
She was diagnosed with cellulitis.40
On May 27, 2011, Ms. McAlees followed up with Casey Gokey, M.D., at PFMC.
She reported losing 100 pounds in the past year and 10 pounds in the past month. She
reported “going back to work this week,” but that she had be “unable to work full days
secondary to her pain.” 	On physical examination, Dr. Gokey observed that redness in
36 A.R. 718–44, 750–52.
37 A.R. 624–85.
38 A.R. 606–16.
39 Docket 1.
40 A.R. 1025.
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her right medial thigh had resolved; “however, she continues to have quite a bit of pain”
and “some weeping from her upper leg.” Dr. Gokey diagnosed Ms. McAlees with diabetes
mellitus, type 2; morbid obesity at 400 pounds; cellulitis with no “signs or symptoms of
infection at this time”; pain “secondary to the indurated area on her right medial thigh”;
and tobacco abuse. 	Dr. Gokey recommended gastric bypass surgery and provided a
referral to Dr. Todd.41
On July 1, 2011, Ms. McAlees followed up with Dr. Gokey. She reported losing her
job that day and was “concerned because she will not have insurance.” 	She reported
losing five pounds since May 2011 and continuing to smoke one pack per day with “no
desire to quit at this time.” She reported continued leg pain. Dr. Gokey observed no signs
or symptoms of cellulitis infection.42
The following are relevant medical records occurring after Ms. McAlees’s alleged
onset date of August 18, 2013:
On August 	18, 	2013, 	Ms. 	McAlees 	went 	to 	the 	emergency 	department 	at
Providence for an “infected lower left extremity.” She reported being unable to afford her
insulin. 	The attending doctor diagnosed Ms. McAlees with cellulitis, a low-grade fever,
and non-compliance with diabetes. 	She was treated with IV antibiotics and discharged
on August 19, 2013.43
41 A.R. 1025–26.
42 A.R. 1027–28.
43 A.R. 267–77.
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On August 26, 2013, Ms. McAlees saw Dr. Gokey for follow up after an emergency
department visit for left leg cellulitis. She reported that she had been taking her antibiotics
as prescribed, but she was in “much more pain” and noted that the redness was spreading
and “it [felt] warmer.” She was also diagnosed with uncontrolled type 2 diabetes mellitus.
On physical examination, she weighed 390 pounds. 	Her left leg had “a large area of
induration and erythema” and her right leg had a “small area of induration, but not
erythema or tenderness.” 	Dr. Gokey noted that Ms. McAlees was to report to the
emergency department as she had “failed outpatient management.”44
From August 27, 2013 to September 2, 2013, Ms. McAlees went to the emergency
department at Providence. She was diagnosed with bilateral lower extremity cellulitis that
failed outpatient management; diabetes mellitus, type 2, “not historically well controlled;”
asthma; and tobacco abuse. Ms. McAlees reported a history of thigh lymphedema for the
prior five years. She reported that it was “chronically painful if she sits or stands too long
but she can generally tolerate it, until this new burning pain started about two weeks ago.”
She requested pursuing gastric bypass surgery. 	She reported having a similar episode
of cellulitis two years prior. 	She was 390 pounds on physical examination, with intact
distal pulses in the extremities, erythema and induration of the bilateral thighs, but had no
obvious abscesses. The attending doctor also reported that Ms. McAlees was “afebrile,
her blood pressure [was] elevated, her pulse [was] elevated to the 90s, and she [was]
sat[urated] 90-96% on room air.” 	She also developed a drug reaction with extensive
44 A.R. 1043–45.
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hives, “was changed to high-dose clindamycin,” and received a consultation for infectious
disease during her inpatient stay.45
On August 29, 2013, Katheryn Ryan, D.O., and Kimberly B. Thornas, M.D.,
completed a health status report form for the State of Alaska, Department of Health and
Social Services. 	Drs. Ryan and Thornas diagnosed Ms. McAlees with cellulitis, type 2
diabetes; morbid obesity; asthma; and lymphedema. 	The doctors opined that Ms.
McAlees could not work full-time or part-time for three months.46
On September 23, 2013, Ms. McAlees followed up with Dr. Gokey. She reported
that her cellulitis was “almost resolved”; however, she still had “quite a bit of induration.”
She also reported continued pain in her left extremity. Dr. Gokey diagnosed Ms. McAlees
with chronic lymphedema. 	She noted that Ms. McAlees was “given a handwritten
prescription for [the] lymphedema clinic,” but that the referral was not effective. 	Her
weight was 398 pounds at the visit with a “large area of induration on [the] [left] medial
thigh” and that her erythema had resolved. Dr. Gokey’s diagnoses included uncontrolled
type 2 diabetes mellitus; morbid obesity; left leg cellulitis, resolved; lymphedema; and
mild, persistent asthma. Dr. Gokey prescribed 60 tablets of hydrocodone/acetaminophen
(Lortab) for pain.47
On October 31, 2013, Ms. McAlees saw Dr. Gokey. 	She reported losing weight.
Ms. McAlees weighed 389 pounds at the visit. Dr. Gokey noted that she had referred Ms.
45 A.R. 278–349, 376–84, 1045–46.
46 A.R. 352–53.
47 A.R. 1045–48.
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McAlees to bariatric surgery. 	Dr. Gokey noted that Ms. McAlees left leg cellulitis had
resolved, but that she continued to have leg pain. 	Dr. Gokey also noted that Ms.
McAlees’s diabetes remained uncontrolled. 	She provided a referral to Ms. McAlees for
physical therapy at the lymphedema clinic. Dr. Gokey refilled Ms. McAlees’s prescriptions
for tramadol and Lortab. 	Dr. Gokey also completed a 6-month handicapped parking
permit.48 On the same date, Dr. Gokey completed a Health Status Report Form for the
State of Alaska, Department of Health and Social Services. 	Dr. Gokey diagnosed Ms.
McAlees with cellulitis; type 2 diabetes; morbid obesity; asthma; and lymphedema. She
opined that Ms. McAlees was unable to work part-time or full-time for the next 12 months.
She recommended bariatric surgery and a weight loss program.49
On January 15, 2014, Ms. McAlees followed up with Dr. Gokey. 	She reported
losing weight, but that she continued to have pain bilaterally in her inner thighs. She also
reported she was “on Medicaid now and can finally afford her medications.” On physical
examination, Dr. Gokey observed that Ms. McAlees weighed 384 pounds with significant
lymphedema in her lower extremities, but her left leg cellulitis had resolved. 	Dr. Gokey
noted that Ms. McAlees continued to have uncontrolled type 2 diabetes mellitus;
insomnia; morbid obesity; and left thumb pain and weakness with reported dislocation.50
On March 20, 2014, Ms. McAlees visited Dr. Gokey. 	She reported that she had
stopped smoking. 	Ms. McAlees reported walking every day “to stay as mobile as
48 A.R. 1049–50.
49 A.R. 350–51.
50 A.R. 1053–54.
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possible,” but had “a very difficult time walking” and considered herself “almost immobile”
due to her weight. She reported “significant leg pain which [had] persisted since her most
recent episode of cellulitis.” She also reported “planning on an [appointment] next month”
with Dr. Searles for bariatric surgery. 	Dr. Gokey observed no new lesions or redness in
the bilateral inner thighs; a weight of 388 pounds; and “significant lymphedema” in the
lower extremities with no signs of infection.51
On April 15, 2014, Nathaniel Arcega, M.D., a state reviewing physician, opined that
Ms. McAlees could lift and carry up to 20 pounds occasionally; 10 pounds frequently;
stand and walk up to two hours total and sit up to six hours total in an eight-hour workday.
Dr. Arcega opined that Ms. McAlees could climb ramps and stairs, balance, stoop, kneel,
crouch, and crawl occasionally, and never climb ladders, ropes, or scaffolds.52
On May 21, 2014, Ms. McAlees saw Dr. Gokey for a bariatric surgery preoperative
workup. She reported continued weight loss, eating healthier, walking every day, but also
reported being limited by significant leg pain after cellulitis. 	She reported that Lortab
enabled her to continue “doing her ADLs.” Ms. McAlees expressed a “[d]esire to qualify
for disability” and had “apparently been denied by the state of [Alaska].”53
On June 10, 2014, Ms. McAlees initiated physical therapy with Chugach Physical
Therapy.54
51 A.R. 1055–56.
52 A.R. 73–77.
53 A.R. 1059–60.
54 A.R. 403–04. 	Ms. McAlees regularly participated in physical therapy sessions from
approximately June 12, 2014 through October 13, 2014. A.R. 389–401, 456, 563–78.
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On June 16, 2014, Ms. McAlees followed up with Dr. Gokey as part of her bariatric
surgery preoperative workup. 	She reported walking every day, but she was limited by
pain. Dr. Gokey noted that Ms. McAlees was referred to Chugach Physical Therapy for
lymphedema (and that she had been referred to Providence Physical Therapy in
September 2013 and May 2014). 	Dr. Gokey diagnosed Ms. McAlees with chronic
lymphedema of the lower extremity, “resulting [in] multiple episodes of cellulitis and
prolonged hospitalization[s] requiring IV antibiotics.” She noted that Ms. McAlees was “at
HIGH RISK of repeated episodes of cellulitis due to her chronic lymphedema, and with
this, repeat prolonged hospitalizations.” Dr. Gokey noted that Ms. McAlees “should NOT
maintain her lower extremities (both of [Ms. McAlees’s] lower extremities have significant
lymphedema) in a gravity-dependent position for long periods of time; this includes
prolonged standing, sitting, or crossing legs. 	When she is not actively exercising, she
should be laying down with her legs elevated above her heart.” 	Dr. Gokey also opined
that Ms. McAlees “should continue her exercise and weight training” and should “wear a
properly fitted compression garment worn during exercise. 	Unfortunately, for [Ms.
McAlees], her morbid obesity will limit the effectiveness of compression pumps or
sleeves.” Dr. Gokey noted that Ms. McAlees had “lost a very small amount of weight” and
“that at this point with the extent of her morbid obesity, the sooner she can undergo gastric
bypass surgery the sooner we can potentially be on a road to significant weight loss, and
hopefully, significant improvement of her lower extremity lymphedema.”55 On the same
date, Dr. Gokey completed a Health Status Report Form for the State of Alaska,
55 A.R. 1061–65.
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Department of Health and Social Services. 	Dr. Gokey diagnosed Ms. McAlees with
morbid obesity, chronic lower extremity lymphedema, insulin dependent type 2 diabetes
mellitus, asthma, and recurrent lower extremity cellulitis requiring hospitalization. 	She
opined that Ms. McAlees could not work full-time or part-time and her conditions limited
her ability to work for more than the next 12 months. She noted that Ms. McAlees required
“bedrest with legs elevated.”56
On July 14, 2014, Ms. McAlees saw Marlena Purchiaroni, D.O., at PFMC, for her
bariatric surgery workup. She reported seeing a physical therapist for lymphedema twice
a week. 	Ms. McAlees also reported that she “tried to do some compression work;
however, this is difficult due to the size of her legs.” 	She reported performing home
exercises for self-lymphatic drainage daily and “wearing her compression sleeves daily.”
Ms. McAlees reported walking every day, but that she was limited by pain. She reported
running out of her prescription of 90 tablets of Lortab after three weeks.57
On October 15, 2014, Ms. McAlees participated in physical therapy at Chugach
Physical Therapy. The therapist noted that Ms. McAlees was using a cane.58
On November 12, 2014, Ms. McAlees followed up with Dr. Purchiaroni. 	She
reported continuing to “perform daily self-lymphatic drainage and wear her compression
sleeves.” She reported walking daily, but that her “legs cause[d] her significant pain and
56 A.R. 1224–25.
57 A.R. 1065–66. 	Ms. McAlees saw Dr. Purchiaroni for follow up examinations on August 15,
2014, September 15, 2014, October 3, 2014, October 16, 2014, and November 4, 2014. A.R.
415–22, 1071–89.
58 A.R. 562. Ms. McAlees participated in regular physical therapy sessions from October 20, 2014
through February 23, 2015. A.R. 509–517, 520–531, 536–552, 555–558, 561.
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walking [was] very difficult as a result.” 	Dr. Purchiaroni also noted that Ms. McAlees
should 	remain 	“bedridden 	as 	often 	as 	possible 	to 	alleviate 	both 	her 	pain 	and
lymphedema.” 	On 	physical 	examination, 	Dr. 	Purchiaroni 	observed 	“[p]rofound
lymphedema in [the] bilateral [lower extremities],” but no cyanosis or clubbing. 	Dr.
Purchiaroni noted that the visit was Ms. McAlees’s last “supervised weight loss and
exercise program with a licensed medical professional.”59
On April 1, 2015, Ms. McAlees followed up with Dr. Purchiaroni. 	On physical
examination, Dr. Purchiaroni observed that Ms. McAlees walked with a cane. 	She
observed that Ms. McAlees’s lower extremities had massive edema “with indurated lobes,
thread 	pulses 	bilaterally.” 	She 	noted 	that 	Ms. 	McAlees’s 	diabetes 	was 	“[p]oorly
controlled.”60 	On the same date, Dr. Purchiaroni completed a Physical Capacities
Evaluation. 	She diagnosed Ms. McAlees with severe hereditary lymphedema, HTN,
DMT2, hypertriglyceridemia, asthma, and morbid obesity. She noted that Ms. McAlees’s
lymphedema, HTN, DMT2, and asthma were expected to last at least 12 months. 	Dr.
Purchiaroni opined that Ms. McAlees was on bedrest “whenever not exercising.” 	She
recommended water therapy and daily self-lymphatic treatment. 	Dr. Purchiaroni also
noted that Ms. McAlees was unable to drive when taking Norco. 	She opined that Ms.
McAlees’s “lymphedema is a chronic condition which will likely be present for the rest of
her life with little improvement.” She also opined that Ms. McAlees could sit for 30 minutes
continuously for a total of two hours; stand for three minutes continuously for a total of 15
59 A.R. 1090–94.
60 A.R. 998–999.
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minutes; and walk 500 feet continuously for a total of 15 minutes in an eight-hour workday.
Dr. Purchiaroni opined that Ms. McAlees could lift up to 25 pounds occasionally; carry up
to 20 pounds occasionally; and bend and reach occasionally, but never squat or climb or
push or pull. She opined that Ms. McAlees was not able to travel by bus.61
On May 27, 2015, Ms. McAlees saw Briana Cranmer, M.D., at PFMC, for
lymphedema and chronic pain.62 On the same date, Dr. Cranmer completed a State of
Alaska Health Status Report. 	She opined that Ms. McAlees could not work full or part-
time for more than the next 12 months and that she needed to be on bedrest with her legs
elevated.63
From July 12, 2015 to July 13, 2015, Ms. McAlees was hospitalized at Providence
for cellulitis.64
On July 21, 2015, Ms. McAlees visited Dr. Purchiaroni for follow up after
hospitalization for lower extremity cellulitis. 	She reported a “significant amount of pain
and redness of both legs.” On physical examination, Dr. Purchiaroni observed “[s]evere
[lower extremity] lymphedema with massive lobing of legs, the underside of both lobes
[was] erythematous, warm, and very tender to palpation, [right greater than left]. There
[was] also erythema and warmth on the lateral aspect of her [right] calf. There [did] not
61 A.R. 580–85.
62 A.R. 993–96.
63 A.R. 1222–23.
64 A.R. 590–601.
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appear to be an active nidus for infection or any impressive skin breaks with signs of
oozing or weeping. Thready dorsalis pedis pulses.”65
On July 23, 2015, Dr. Purchiaroni provided a letter for Ms. McAlees. She requested
that Ms. McAlees “be granted disability status as there are no reasonable professions or
trades that would allow for her employment, given her severe hereditary lymphedema
and resultant high risk of cellulitis.” 	Dr. Purchiaroni also noted that Ms. McAlees’s
“lymphedema is so severe that she is disabled, requiring a cane to walk” and that Ms.
McAlees walked “only out of necessity, as at all other times, her legs should remain
elevated, 	in 	a 	non-gravity-dependent 	position.” 	She 	also 	noted 	that 	even 	with
precautions, Ms. McAlees is “prone to cellulitis which can very quickly cause life-
threatening 	sepsis.” 	Dr. 	Purchiaroni 	also 	noted 	that 	Ms. 	McAlees 	had 	required
hospitalization for cellulitis “numerous times in the past, the most recent of which was
earlier this month.”66
On August 27, 2015, Ms. McAlees saw Dr. Purchiaroni. 	She reported being
concerned “with her legs.” 	She reported being in “excruciating pain” and believed her
cellulitis was “flaring.” Dr. Purcharioni observed “[s]evere, woody edema throughout [the]
entirety of [the] legs” with lobed 2/2 severe edema. 	Dr. Purcharioni also noted that the
right thigh lobe “was erythematous and warm with three 1cm abscesses scattered over
65 A.R. 1125–26.
66 A.R. 588.
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the knee area, the worst of which [was] located at the flexor surface of the knee” that was
“draining purulent matter.”67
On September 3, 2015, Ms. McAlees had gastric bypass surgery.68
On November 30, 2015, Ms. McAlees returned to physical therapy at Chugach
Physical Therapy. The therapist noted that Ms. McAlees walked with a “wide base due
to pannus/swelling pockets [in the] inner knee region” and that the “[p]ockets collide[d]
and disrupt[ed] [her] overall gait mechanics.” The therapist also noted that Ms. McAlees
continued 	to 	present 	with 	“consistent 	[l]ymphedema 	[in 	the 	lower 	extremities]
accompanied by weakness in the [lower extremities] and core/trunk, as well as restricted
[range of motion] in [the] knees.”69
On January 13, 2016, Ms. McAlees followed up with Dr. Purchiaroni. She reported
“[g]eneralized body pain and severe lower extremity pain.” 	She reported that the pain
“makes it extremely hard for her to function regularly.” 	Dr. Purchiaroni included a new
diagnosis of fibromyalgia, but noted, “this is a diagnosis of exclusion, it is hard to say at
this point whether or not she has this diagnosis. 	However, she does have generalized
body pain with greater than 11/18 soft tissue tender points on her exam.”70
67 A.R. 1128–29.
68 A.R. 986–87. On September 16, 2015, Ms. McAlees followed up with Dr. Searles after surgery.
A.R. 970. On September 29, 2015, Ms. McAlees followed up with Marya Spurling, M.D., at PFMC.
A.R. 1130–31. She followed up with Dr. Searles on March 9, 2016. He noted that she was able
to “easily get[ ] to the exam table.” A.R. 968.
69 A.R. 1201–02.
70 A.R. 1132–33.
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On April 11, 2016, Ms. McAlees saw Dr. Purchiaroni. She requested a referral for
plastic surgery to remove her excess skin secondary to her rapid weight loss after bariatric
surgery. 	Dr. Purchiaroni noted that Ms. McAlees’s lymphedema and lipoedema had
“significantly improved” after bariatric surgery. 	Dr. Purchiaroni also observed that Ms.
McAlees “still [had] large lobes at the medial aspect of both knees and smaller lobes at
her 	ankles.” 	She 	referred 	Ms. 	McAlees 	to 	a 	lymphedema 	specialist 	“given 	her
complicated lymphedema picture at this juncture.”71 On the same date, Dr. Purchiaroni
completed a Health Status Report Form for the State of Alaska, Department of Health
and Social Services. She continued to recommend bed rest and leg elevation and opined
that Ms. McAlees was not capable of part-time or full-time work.72
On September 14, 2016, Ms. McAlees followed up with Dr. Searles. She reported
rashes and infections under the pannus and thighs and that redundant soft tissue rubbed,
making walking difficult. 	Ms. McAlees was 231 pounds at the visit, down 165 pounds
since surgery. 	Dr. Searles noted that he would refer her to plastic surgery “[g]iven her
redundant skin and complications.”73
On March 27, 2017, Ms. McAlees saw Evan Jones, M.D., at PFMC, for a “referral
for surgical evaluation for reduction of redundant skin folds following bariatric surgery and
71 A.R. 1137–38.
72 A.R. 1220–21.
73 A.R. 967.
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subsequent weight loss.” 	Dr. Jones observed “substantial swelling of 	the thighs
bilaterally” and “some pain elicited with passive [range of motion] of the right knee.”74
On June 16, 2017, Ms. McAlees followed up with Dr. Jones. Dr. Jones noted that
“the patient was unable to see a physician for consultation for removal of redundant skin
folds following significant weight loss after her bariatric surgery. Due to Medicaid status
it seems that there are very few plastic surgeons [who] would be willing to operate on this
patient.” 	Dr. Jones also noted that Ms. McAlees had been hospitalized three times for
cellulitis of her thighs, but she had only been hospitalized once since her gastric bypass
surgery.75
On August 3, 2017, Ms. McAlees re-initiated physical therapy at Chugach Physical
Therapy. 	She reported that she had continued right knee pain, lymphedema, and neck
pain. 	She also reported “continued issues with cellulitis, excess skin, swelling and
bulbous areas around her knees.” 	Ms. McAlees reported that she had compression
garments for her lymphedema, but she did not “have them on at the time of the initial
evaluation.” 	The therapist observed that Ms. McAlees ambulated with an antalgic gait
pattern with “increased bulbous areas in both knees which cause her to circumduct her
legs when walking to clear the excess tissue.” 	Due to time constraints the therapist did
not assess Ms. McAlees’s lymphedema, but noted that “[s]he would benefit from [a] skilled
74 A.R. 1144–46.
75 A.R. 1148–49.
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PT to address her knee pain, lymphedema, cervical issues, decrease her pain and
improve her pain free functional mobility.”76
On February 8, 2018, Dr. Jones completed a Health Status Report Form for the
State of Alaska, Department of Health and Social Services. He opined that Ms. McAlees
was unable to work full-time and her ability to work was limited for more than 12 months.
He noted that Ms. McAlees continued to require bed rest and leg elevation.77
Hearing Testimony on March 9, 2018
On March 9, 2018, Ms. McAlees testified with a representative at a hearing before
ALJ Hebda on remand from the U.S. District Court in the District of Alaska. She testified
that she had lymphedema in both legs, but it was most severe in her right leg. She also
testified that she had asthma; obesity; fibromyalgia; and osteoarthritis in both knees,
recently diagnosed. 	Ms. McAlees testified that she had pain in her thighs that went
“straight down” to her ankles and swelling in her ankles “every day.” 	She noted that
depending on the severity of the swelling in her legs, some days she could walk well. She
testified that a good day would be “limited amounts of swelling and pain” and on a bad
day she could not get out of bed. 	She indicated that sitting more than an hour or two
caused her legs to “start to go numb and swell.” 	She also testified that she had tried
compression stockings but her thighs were too big due to lymphedema, and Medicaid did
not cover “designer made stockings.” 	Ms. McAlees testified that she used a cane daily.
She also testified that her doctor required her to “elevate [her legs] the majority of [her]
76 A.R. 1203–04.
77 A.R. 1217–18.
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day to keep the swelling down.” 	She stated, “[th]e more I elevate my legs, the least
amount of pain and the least amount of swelling I have” and noted that she spent about
15 to 18 hours each day elevating her legs.78
Robert Sklaroff, M.D., testified as the medical expert. Based on his review of the
record, Dr. Sklaroff opined that Ms. McAlees could lift 50 pounds occasionally and 25
pounds frequently; sit, stand, or walk up to six hours each in an eight-hour workday; could
push, pull, squat, bend, and reach “with some concentration and postural manipulation”;
could not climb ropes, ladders, or scaffolds and should avoid hazardous machinery, but if
she continued “to smoke a pack-a-day, as seems to be the case, then no environmental
limitations.” 	Upon questioning by Ms. McAlees’s attorney, Dr. Sklaroff agreed that Ms.
McAlees should have limitations to dust and extreme temperatures if she stopped
smoking. Dr. Sklaroff testified that there was “no definable problem with [Ms. McAlees’s]
bones, her muscles and her nerves” and opined that Ms. McAlees did not need an
assistive device. He also stated that “one would argue that the physical movement would
facilitate efforts to lose weight.” He testified that “elevating the legs in order to get rid of
edema is dwarfed by the use of either T.E.D. stockings, or in this situation . . . JOBST
stockings which have been around for a half-a-century.” 	He further testified that “the
[notion] that leg elevation would favorably affect this patient is not supported by the
medical data and it is not supported in the medical literature.” 	Dr. Sklaroff opined that
there was “no mandate that [her legs] be elevated” and that Ms. McAlees “should have
thigh-high compression stockings.” He noted that Ms. McAlees’s cellulitis was persistent,
78 A.R. 654–59.
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but he disagreed that it would meet or equal a listing “because every time I see a progress
note I see a healing.” Dr. Sklaroff disagreed with Ms. McAlees’s treating doctors that her
lymphedema was “a chronic condition which will likely be present for the rest of her life
with little improvement,” stating, “I disagree because if she lost the 200 pounds it would
abate automatically.”79
Hearing Testimony on July 2, 2018
On July 2, 2018, Ms. McAlees testified at a continued hearing before ALJ Hebda
with representation. The previous hearing was continued to allow Ms. McAlees to obtain
information regarding her fibromyalgia claims, but her attorney confirmed that there was
only one diagnosis of exclusion and that Ms. McAlees “doesn’t have it.” 	Ms. McAlees
testified that she had leg pain “all day long, every day” and that she had had lymphedema
since 2007. 	She testified that she had had cellulitis since 2011 and that she had been
hospitalized for cellulitis three times. 	She testified that she continued to have episodes
of cellulitis at least once a month. She also testified that she needed skin removal surgery
“because it is causing issues with my cellulitis anywhere there’s overlapping of skin.” She
also testified that she spent the majority of her day with her legs elevated because it kept
“the pressure down” and helped with pain. She testified that she could not work because
she “kept getting infections” and “wasn’t able to keep the infections at bay because [her]
skin [was] compromised where [she had] the fluid in [her] legs.” 	Ms. McAlees indicated
that she had been doing physical therapy on a regular basis since 2011 and that it helped
but it didn’t solve her lymphedema problems. 	She noted that a physical therapist
79 A.R. 629–53.
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specializing in lymphedema tried to fit her for compression socks above the knee and
Medicaid would not pay for them. 	She testified that she had tried “alternative options
such as Ace bandages and even so far as to use duct tape.” She also testified that she
could not work “with the amount of time I’m allowed to be mobile.” 	Ms. McAlees also
testified that she had not had skin removal surgery because “I haven’t found a surgeon
here in Alaska willing to touch me.” 	She testified that she needed to walk with
assistance.80
Daniel Labrosse testified at the hearing as the vocational expert. He testified that,
based on the ALJ’s hypothetical, Ms. McAlees could perform her past work as a tax
preparer, an accounts supervisor, an accounts receivable clerk, and a cashier.81 	VE
Labrosse also opined that a change in the hypothetical from medium to light work would
still allow Ms. McAlees to perform all of her relevant past work. He opined that she would
not be able to perform work as a cashier if the hypothetical was limited to sedentary work.
Upon questioning by Ms. McAlees’s attorney, VE LaBrosse testified that a person
required to keep her legs up for most of the day was not employable.82
80 A.R. 664–79.
81 The ALJ’s first hypothetical was as follows:
I have an individual with the claimant’s age, education and past work experience
who would be able to perform medium level work as defined by the Social Security
Administration, but would not be able to climb ladders, ropes and scaffolding;
would have to avoid all exposure to moving and hazardous machinery as well as
unprotected heights; would have to avoid concentrated exposure to fumes and
dust; and avoid moderate exposure to non-weather-related extreme cold and non-
weather-related extreme heat. A.R. 680–81.
82 A.R. 680–83. At the hearing, Ms. McAlees’s attorney asked the question, “if a person is required
to keep her legs up in a laying down position for most of the day, is she going to be employable?”
VE LaBrosse answered, “No.” A.R. 683.
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Function Report
Ms. McAlees completed a function report on March 8, 2014. 	She reported that
standing, walking, or sitting with her “legs down causes severe pain and swelling in the
legs, making it hard to walk.” She also indicated that lymphedema caused her thighs to
be “the size of bowling balls.” 	She reported that she kept her legs elevated during the
day. She also reported that her 12-year old daughter and family helped care for her pets,
fix meals, keep the house, and do the shopping, but that she could prepare her own
meals, do laundry, wash dishes, and perform other household chores in a sitting position.
Ms. McAlees reported that she did not do yard work or snow removal. She indicated that
she could drive a car and go out alone, pay bills and handle finances, and read. 	Ms.
McAlees reported that she needed help with her socks and had to sit to bathe and wash
her hair, but she could take care of her own personal care. 	She reported that she was
“unable to lift [and] carry anything heavy because it throws my balance off, walking is hard
due to my tumors, sitting cuts off circulation below the knee [and] makes my legs hurt.”
She indicated that she could walk 50 feet before needing to rest. She reported that she
used a cane, walker, and brace/splint. 	She reported taking hydroxyzine, lisinopril,
tramadol, Vicodin, and metformin.83
IV. DISCUSSION
Ms. McAlees is represented by counsel in this appeal. 	In her opening brief, she
asserts that the ALJ: (1) erred by rejecting Ms. McAlees’s treating physicians’ opinions
with no weight as they were “unanimous that Ms. McAlees must elevate her legs, and
83 A.R. 187–95.
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their opinions are consistent with the record” and (2) the RFC was not supported by
substantial evidence because Ms. McAlees “must keep her legs elevated above her heart
except 	when 	necessary 	to 	walk 	because 	the 	leg 	elevation 	is 	due 	to 	hereditary
lymphedema and resultant high risk of cellulitis even after weight loss surgery.” She also
asserts that the RFC “fails to account for the excess skin due to weigh loss from nearly
400 lbs. to about 230 lbs.”84 The Commissioner contests each of the above assertions.85
As set forth below, in addressing Ms. McAlees’s first claim, the Court concludes that the
ALJ erred by failing to provide specific and legitimate reasons supported by substantial
evidence for rejecting the unanimous opinions of Ms. McAlees’s treating physicians. The
Court reverses the ALJ’s decision based on that error and does not reach Ms. McAlees’s
remaining claims.
A. Medical Opinions
Ms. McAlees asserts that the ALJ erred by assigning no weight to the unanimous
medical opinions of Ms. McAlees’s treating physicians that Ms. McAlees “must keep her
legs elevated except when she needs to ambulate.” 	She alleges that the opinions are
“medical 	source 	diagnostic 	opinion[s], 	not 	a 	transgression 	of 	the 	commissioner’s
prerogative.”86
1. 	Legal Standard
“Regardless of its source, [the SSA] will evaluate every medical opinion [it]
84 Docket 15 at 1, 4–13.
85 Docket 16 at 4–9.
86 Docket 15 at 4–5.
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receive[s].”87 	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.88 “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.”89
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.”90 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.”91 	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.”92
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
87 20 C.F.R. §§ 404.1527(c), 416.927(c). These sections apply to claims filed before March 27,
2017.
88 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
89 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821,
830 (9th Cir. 1995)).
90 Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting Bayliss v. Barnhart, 427 F.3d
1211, 1216 (9th Cir. 2005)).
91 Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).
92 Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes v. Bowen, 881 F.2d 747,
751 (9th Cir. 1989)).
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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.93
An ALJ may reject the opinion of a doctor “if that opinion is brief, conclusory, and
inadequately supported by clinical findings.”94
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.95 “The weight afforded a non-examining physician’s testimony depends
‘on the degree to which he provides supporting explanations for his opinions.’”96 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.97 	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.98
2. 	Analysis
In this case, multiple treating and examining physicians provided the same opinion
that Ms. McAlees could not work and needed bedrest and leg elevation.99 Specifically, in
93 20 C.F.R. §§ 404.1513a(b), 416.913a(b), 404.1527(c)(2), 416.927(c)(2). These sections
apply to claims filed before March 27, 2017. See 20 C.F.R. § 404.614.
94 Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
95 20 C.F.R. §§ 404.1513a(b), 416.913a(b).
96 Garrison, 759 F.3d at 1012.
97 Andrews v. Shalala, 53 F.3d 1035, 1042 (citing Torres v. Secretary of H.H.S., 870 F.2d 742, 744
(1st Cir. 1989)).
98 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).
99 The determination whether Ms. McAlees is disabled and whether there is a job in the national
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August 2013, Dr. Ryan provided an opinion that Ms. McAlees would not be able to work
for the next three months.100 Treating physician Dr. Gokey opined on October 31, 2013
that Ms. McAlees was unable to work and on June 16, 2014 that Ms. McAlees could not
work for more than 12 months and required “bedrest with legs elevated.”101 	Dr.
Purchiaroni treated Ms. McAlees on a monthly basis from approximately November 2014
through April 2016. She provided opinions on April 1, 2015, July 23, 2015, and April 11,
2016. 	She opined that Ms. McAlees should be on bedrest, walk only out of necessity,
and keep her legs elevated at all other times.102 Dr. Cranmer examined Ms. McAlees on
only one occasion and on the same date, opined that Ms. McAlees could not work and
needed to be on bedrest with her legs elevated.103 Dr. Jones examined Ms. McAlees and
provided an opinion on February 8, 2018 that Ms. McAlees still required bedrest and leg
elevation.104
Dr. Sklaroff’s testimony at the March 9, 2018 hearing contradicted Ms. McAlees’s
treating and examining physicians’ bed rest and leg elevation opinions. 	Dr. Sklaroff
economy that Ms. McAlees could perform is reserved to the Commissioner and her physicians’
opinions that Ms. McAlees could not work are not entitled to deference. 20 C.F.R. § 404.1527(d).
However, the physicians’ unanimous opinions that Ms. McAlees required bed rest and leg
elevation reflects professional judgment as doctors regarding the severity of Ms. McAlees’s
impairments and physical restrictions and are entitled to deference. 20 C.F.R. 404.1527(a)(2).
100 A.R. 352–53.
101 A.R. 1224–27.
102 A.R. 580–85, 588, 1220–21.
103 A.R. 1222–23.
104 1217–18.
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opined that Ms. McAlees did not require leg elevation as it was “not supported by the
medical data and not supported in the medical literature” and was “dwarfed by the use of
[compression stockings].”105 	In light of Dr. Sklaroff’s contrary opinion, the ALJ was
required to provide specific and legitimate reasons for rejecting the medical opinions of
Ms. McAlees’s treating and examining physicians.106
Here, the ALJ found that the unanimous bed rest and leg elevation opinions of Drs.
Ryan, Gokey, Purchiaroni, Cranmer, and Jones were “not consistent with the overall
objective medical evidence.”107 	He noted that at an exam on September 15, 2014, Dr.
Purchiaroni 	found 	Ms. 	McAlees 	had 	profound 	lymphedema 	in 	the 	bilateral 	lower
extremities, but that Ms. McAlees was “not in acute distress during the exam, and her
lungs were clear to auscultation.” 	He also noted that although Ms. McAlees had been
hospitalized three times for cellulitis of her thighs, it had occurred only once since her
gastric bypass surgery.108 However, the Court finds these examples inadequate to show
that all five of Ms. McAlees’s physicians’ opinions regarding leg elevation were not
consistent with the overall objective medical evidence.109 	And, Dr. Sklaroff’s opinion
105 A.R. 614, 629–53.
106 Trevizo v. Berryhill, 871 F.3d at 676 (“If 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
that are supported by substantial evidence.”) (quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216
(9th Cir. 2005)); see also Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“[T]he reasons for
rejecting a treating doctor’s credible opinion on disability are comparable to those required for
rejecting a treating doctor’s medical opinion.”).
107 A.R. 613–614.
108 A.R. 614, 1149.
109 Trevizo v. Berryhill, 871 F.3d at 676 (“[T]he ALJ did not consider factors such as the length of
the treating relationship, the frequency of examination, the nature and extent of the treatment
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alone that Ms. McAlees did not require leg elevation was not substantial evidence to
support the rejection her treating physicians’ opinions.110
First, the record supports the treating physicians’ opinions regarding leg elevation.
On October 31, 2013, Dr. Gokey noted that Ms. McAlees’s cellulitis had not been
resolved, that Ms. McAlees was waiting on a bariatric surgery consultation, they were still
working on appropriate management of Ms. McAlees’s lymphedema, and Ms. McAlees
continued to have uncontrolled type 2 diabetes.111 On June 16, 2014, Dr. Gokey noted
that Ms. McAlees was at high risk of repeated episodes of cellulitis and prolonged
hospitalizations as a result. She also noted that Ms. McAlees’s morbid obesity limited the
effectiveness of compression garments.112 Throughout the record, Dr. Gokey continued
to treat Ms. McAlees for cellulitis and lymphedema. She prescribed pain medications for
Ms. McAlees’s lower extremity pain.113
During the time Dr. Purchiaroni treated Ms. McAlees, she was hospitalized from
July 12 to July 3, 2015 for cellulitis.114 	In treatment notes, Dr. Purchiaroni observed
“[p]rofound lymphedema in [the] bilateral [lower extremities],” massive edema “with
relationship, or the supportability of the opinion . . . This failure alone constitutes reversible legal
error.”) (internal citations omitted).
110 Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007) (A non-examining physician’s “opinion does
not alone constitute substantial evidence to support the rejection of Orn’s treating physicians’
opinions.”).
111 A.R. 350–51, 1049–50.
112 A.R. 1061–65, 1224–25.
113 e.g., A.R. 1045–50, 1053–56, 1059–65.
114 A.R. 590–601.
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indurated lobes,” and “abscesses scattered over the knee area.” 	At these visits, Ms.
McAlees also reported significant pain.115 	In April 2016, Dr. Purchiaroni noted that Ms.
McAlees’s lymphedema had significantly improved after bariatric surgery, but she
continued to recommend bed rest and leg elevation and referred Ms. McAlees to a
lymphedema specialist “given her complicated lymphedema picture at this juncture.”116
Although Dr. Jones noted that Ms. McAlees had been hospitalized three times for
cellulitis of her thighs, but only once since her gastric bypass surgery, Dr. Jones observed
“substantial 	swelling 	of 	the 	thighs 	bilaterally” 	and 	pain 	in 	the 	right 	knee 	upon
examination.117 	His treatment notes document that Ms. McAlees was having difficulty
finding a plastic surgeon “willing to operate on this patient” for reduction of redundant skin
folds after bariatric surgery due to her Medicaid status.118 	Additionally, Ms. McAlees
testified that she had tried compression stockings but her thighs were too large due to
lymphedema and Medicaid did not cover “designer made stockings.” 	She also testified
that elevating her legs for the majority of the day kept pain and swelling down and that
she spent about 15 to 18 hours each day elevating her legs.119
115 e.g., A.R. 998–99, 1090–94, 1125–26, 1128–29, 1132–33.
116 A.R. 1137–38, 1220–21.
117 A.R. 1144–46. On February 8, 2018, Dr. Jones opined that Ms. McAlees was unable to work
and continued to require bed rest and leg elevation. A.R. 1217–18.
118 A.R. 1148–49. See Orn, 495 F.3d at 638 (quoting Gamble v. Chater, 68 F.3d 319, 321) (9th
Cir. 1995) (“disability benefits may not be denied because of the claimant’s failure to obtain
treatment [she] cannot obtain for lack of funds.”).
119 A.R. 654–59.
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For the foregoing reasons, the ALJ did not provide specific and legitimate reasons
supported by substantial evidence for rejecting all five of Ms. McAlees’s treating and
examining physicians’ opinions that Ms. McAlees required bed rest and leg elevation for
most of the day. The ALJ’s decision is reversed for this error.
B. 	Scope of Remand
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.”120 The court follows a three-step
analysis to determine whether the case raises the “rare circumstances” that allow a court
to exercise its discretion to remand for an award of benefits. 	“First, [the court] must
conclude that ‘the ALJ has failed to provide legally sufficient reasons for rejecting
evidence, whether claimant testimony or medical opinion.’”121 “Second, [the court] must
conclude that ‘the record has been fully developed and further administrative proceedings
would serve no useful purpose.’”122 	“Where there is conflicting evidence, and not all
essential factual issues have been resolved, a remand for an award of benefits is
inappropriate.”123 	“Third, [the court] must conclude that ‘if the improperly discredited
evidence were credited as true, the ALJ would be required to find the claimant disabled
120 Treichler, 775 F.3d at 1099 (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)).
121 Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (quoting Garrison, 759 F.3d at 1020).
122 Id. (quoting Garrison, 759 F.3d at 1020).
123 Treichler, 775 F.3d at 1101.
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on remand.’”124 But, “even if all three requirements are met, [the court] retain[s] ‘flexibility’
in determining the appropriate remedy” and “may remand on an open record for further
proceedings ‘when the record as a whole creates serious doubt as to whether the claimant
is, in fact, disabled within the meaning of the Social Security Act.’”125
Ms. McAlees argues that this matter should be remanded for payment of an award
of benefits.126 	The Commissioner responds that the Court should affirm, or in the
alternative, the Court should remand for further administrative proceedings.127
Here, the Court has found that the ALJ did not provide legally sufficient reasons for
rejecting the opinions of Drs. Ryan, Gokey, Purchiaroni, Cranmer, and Jones. 	Second,
the 	record 	has 	been 	extensively 	developed 	regarding 	Ms. 	McAlees’s 	cellulitis,
lymphedema, and obesity. 	It contains hospitalization records, treatment notes, medical
evaluations, and health status reports. 	It includes testimony and a function report from
Ms. McAlees, which also corroborate her impairments. 	Moreover, the VE specifically
opined that an individual that needed to have legs elevated most of the day could not
sustain work. 	Therefore, if Ms. McAlees’s treating and examining physicians’ bed rest
and leg elevation opinions are credited as true, the ALJ would have been required to find
Ms. McAlees disabled.
124 Brown-Hunter, 806 F.3d at 495 (quoting Garrison, 759 F.3d at 1021).
125 Id. (quoting Garrison, 759 F.3d at 1021).
126 Docket 15 at 14–18.
127 Docket 16 at 9–10.
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The Court concludes that all three conditions to credit-as-true have been satisfied
and remand for the calculation and award of benefits is warranted in this case.128 Further,
the “rare circumstances” in this case weigh heavily in favor of the immediate payment of
benefits. Ms. McAlees’s alleged disability more than six years ago. This matter has been
before this Court twice and Ms. McAlees has appeared at hearings before the ALJ on at
least four occasions. 	She has extensive medical needs and has frequently lacked
medical approvals from Medicaid for necessary treatment. She has been unable to find
a plastic surgeon willing to perform surgery for redundant skin following bariatric surgery
and 	subsequent 	weight 	loss. 	“Further 	delays 	at 	this 	point 	would 	be 	unduly
burdensome.”129 Therefore, the case will be remanded to the ALJ for the calculation and
award of benefits.
V. 	ORDER
The Court, having carefully reviewed the administrative record, finds that the ALJ’s
determinations 	are 	not 	free 	from 	legal 	error. 	Accordingly, 	IT 	IS 	ORDERED 	that
Ms. McAlees’s request for relief at Docket 15 is GRANTED as set forth herein, the
Commissioner’s final decision is VACATED, and the case is REMANDED for the
calculation and award of benefits.
128 The Ninth Circuit has clarified that courts will “remand for further proceedings when, even
though all conditions of the credit-as-true rule are satisfied, an evaluation of the record as a whole
creates serious doubt that a claimant is, in fact, disabled.” Garrison v. Colvin, 759 F.3d 995, 1021
(9th Cir. 2014); Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014).
129 Trevizo, 871 F.3d at 683 (quoting Terry v. Sullivan, 903 F.2d 1273, 1280 (9th Cir. 1990).
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The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 21st day of October, 2019 at Anchorage, Alaska.
/s/ Timothy M. Burgess
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
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