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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
KEVIN H.C.,1
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant. Case No. 3:20-cv-00239-SLG
DECISION AND ORDER
On or about October 6, 2017, Kevin H.C. (“Plaintiff”) protectively filed an application
for disability insurance benefits (“SSDI”) under Title II of the Social Security Act (“the
Act”),2 alleging disability beginning August 28, 2015.3 Plaintiff has exhausted his
administrative remedies and filed a Complaint seeking relief from this Court.4 Plaintiff’s
1 Plaintiff’s name is partially redacted in compliance with Federal Rule of Civil Procedure
5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case
Management of the Judicial Conference of the United States. See Memorandum, Committee on
Court Administration and Case Management of the Judicial Conference of the United States (May
1, 2018), https://www.uscourts.gov/sites/default/files/18-cv-l-suggestion_cacm_0.pdf.
2 Title II of the Social Security Act provides benefits to disabled individuals who are insured by
virtue of working and paying Federal Insurance Contributions Act (FICA) taxes for a certain
amount of time. Title XVI of the Social Security Act is a needs-based program funded by general
tax revenues designed to help disabled individuals who have low or no income. Plaintiff brought
claims under Title II. Although each program is governed by a separate set of regulations, the
regulations governing disability determinations are substantially the same for both programs.
Compare 20 C.F.R. §§ 404.1501–1599 (governing disability determinations under Title II) with 20
C.F.R. §§ 416.901–999d (governing disability determinations under Title XVI). For convenience,
the Court cites the regulations governing disability determinations under both titles.
3 Administrative Record (“A.R.”) 22. The record appears to contain only the application summary,
not the application itself. The application summary lists October 10, 2017 as the application date.
A.R. 299.
4 Docket 1 (Plaintiff’s Compl.).
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opening brief asks the Court to vacate and remand the agency’s decision for further
administrative proceedings.5 The Commissioner filed an Answer and a brief in opposition
to Plaintiff’s opening brief.6 Plaintiff filed a reply brief on June 4, 2021.7 Oral argument
was not requested and was not necessary to the Court’s decision. On July 20, 2021,
Defendant Commissioner Saul was substituted by Acting Commissioner Kilolo Kijakazi
pursuant to Federal Rule of Civil Procedure 25(d).8 This Court has jurisdiction to hear an
appeal from a final decision of the Commissioner of Social Security.9 For the reasons set
forth below, Plaintiff’s request for relief is granted.
I. STANDARD OF REVIEW
A decision by the Commissioner to deny disability benefits will not be overturned
unless it is either not supported by substantial evidence or is based upon legal error.10
“Substantial evidence” has been defined by the United States Supreme Court as “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”11 Such evidence must be “more than a mere scintilla,” but may be “less than
5 Docket 24 (Plaintiff’s Br.).
6 Docket 22 (Answer); Docket 25 (Defendant’s Br.).
7 Docket 27 (Reply).
8 Docket Annotation (July 20, 2021).
9 42 U.S.C. § 405(g).
10 Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citing Gonzalez v.
Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990)).
11 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of New York v.
NLRB, 305 U.S. 197, 229 (1938)).
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a preponderance.”12 In reviewing the agency’s determination, the Court considers the
evidence in its entirety, weighing both the evidence that supports and that which detracts
from the administrative law judge (“ALJ”)’s conclusion.13 If the evidence is susceptible to
more than one rational interpretation, the ALJ’s conclusion must be upheld.14 A reviewing
court may only consider the reasons provided by the ALJ in the disability determination
and “may not affirm the ALJ on a ground upon which he did not rely.”15 An ALJ’s decision
will not be reversed if it is based on “harmless error,” meaning that the error “is
inconsequential to the ultimate nondisability determination, or that, despite the legal error,
the agency’s path may reasonably be discerned, even if the agency explains its decision
with less than ideal clarity.”16 Finally, the ALJ has a “special duty to fully and fairly develop
the record and to assure that the claimant’s interests are considered.”17 In particular, the
Ninth Circuit has found that the ALJ’s duty to develop the record increases when the
claimant is unrepresented or is mentally ill and thus unable to protect his own interests.18
12 Richardson, 402 U.S. at 401; Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975)
(per curiam).
13 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
14 Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citing Rhinehart v. Finch, 438 F.2d 920,
921 (9th Cir. 1971)).
15 Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).
16 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations
omitted).
17 Smolen v. Chater, 80 F.3d 1273,1288 (9th Cir. 1996) (quoting Brown v. Heckler, 713 F.2d 441,
443 (9th Cir. 1983)); see also Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014).
18 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001).
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II. DETERMINING DISABILITY
The Social Security Act (“the Act”) provides for the payment of disability insurance
to individuals who have contributed to the Social Security program and who suffer from a
physical or mental disability.19 In addition, Supplemental Security Income (“SSI”) may be
available to individuals who do not have insured status under the Act but who are age 65
or older, blind, or disabled.20 Disability is defined in the Act as follows:
[I]nability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months.21
The Act further provides:
An individual shall be determined to be under a disability only if his physical
or mental impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work
exists in the immediate area in which he lives, or whether a specific job
vacancy exists for him, or whether he would be hired if he applied for work.
For purposes of the preceding sentence (with respect to any individual),
“work which exists in the national economy” means work which exists in
significant numbers either in the region where such individual lives or in
several regions of the country.22
19 42 U.S.C. § 423(a).
20 42 U.S.C. § 1381a.
21 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
22 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
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The Commissioner has established a five-step process for determining disability
within the meaning of the Act.23 A claimant bears the burden of proof at steps one through
four in order to make a prima facie showing of disability.24 If a claimant establishes a
prima facie case, the burden of proof then shifts to the agency at step five.25 The
Commissioner can meet this burden in two ways: “(a) by the testimony of a vocational
expert, or (b) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404,
subpt. P, app. 2.”26 The steps, and the ALJ’s findings in this case, are as follows:
Step 1. Determine whether the claimant is involved in “substantial gainful
activity.”27 The ALJ determined that Plaintiff had not engaged in substantial activity since
the alleged onset date of August 28, 2015.28
Step 2. Determine whether the claimant has a medically severe impairment or
combination of impairments. A severe impairment significantly limits a claimant’s physical
or mental ability to do basic work activities and does not consider age, education, or work
experience. The severe impairment or combination of impairments must satisfy the
23 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
24 Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1096 n.1 (9th Cir. 2014) (quoting Hoopai
v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007)); see also Tackett v. Apfel, 180 F.3d 1094, 1098
(9th Cir. 1999).
25 Treichler, 775 F.3d at 1096 n.1; Tackett, 180 F.3d at 1098 (emphasis in original).
26 Tackett, 180 F.3d at 1101.
27 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
28 A.R. 24.
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twelve-month duration requirement.29 The ALJ determined that Plaintiff had the following
medically determinable severe impairment: s/p cerebrovascular accident (CVA). The ALJ
also determined that Plaintiff’s hypertension, diabetes, hyperlipidemia, and obesity were
non-severe impairments.30
Step 3. Determine whether the impairment or combination of impairments meet(s)
or equal(s) the severity of any of the listed impairments found in 20 C.F.R. pt. 404, subpt.
P, app.1, precluding substantial gainful activity. If the impairment(s) is(are) the equivalent
of any of the listed impairments, and meet(s) the duration requirement, the claimant is
conclusively presumed to be disabled. If not, the evaluation goes on to the fourth
step.31 The ALJ determined that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1.32
Before proceeding to step four, a claimant’s residual functional capacity (“RFC”) is
assessed. Once determined, the RFC is used at both step four and step five. An RFC
assessment is a determination of what a claimant is able to do on a sustained basis
despite the limitations from his impairments, including impairments that are not severe.33
The ALJ determined that Plaintiff had the residual functional capacity to perform light work
29 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
30 A.R. 25.
31 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
32 A.R. 25.
33 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
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except he could frequently push/pull with the right upper extremity and occasionally
push/pull with the left upper extremity; frequently balance; occasionally climb ramps and
stairs, stoop, kneel, crouch, and crawl; and frequently reach, handle, finger, and feel with
the non-dominant left upper extremity. The ALJ determined that Plaintiff could not climb
ladders, ropes, or scaffolding; must avoid moderate exposure to non-weather related
extreme cold and extreme heat, wetness, humidity, noise, and vibration; and must avoid
all exposure to unprotected heights and moving/hazardous machinery.34
Step 4. Determine whether the claimant is capable of performing past relevant
work. At this point, the analysis considers whether past relevant work requires the
performance of work-related activities that are precluded by the claimant’s RFC. If the
claimant can still do his past relevant work, the claimant is deemed not to be disabled.35
Otherwise, the evaluation process moves to the fifth and final step. The ALJ determined
that Plaintiff was capable of performing his past relevant work as a dentist and a health
care facility administrator.36
Step 5. Determine whether the claimant is able to perform other work in the
national economy in view of his age, education, and work experience, and in light of the
34 A.R. 25–26.
35 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
36 A.R. 33.
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RFC. If so, the claimant is not disabled. If not, the claimant is considered disabled.37 The
ALJ did not reach Step Five in his analysis.38
The ALJ concluded that Plaintiff was not disabled within the meaning of the Social
Security Act at any time from August 28, 2015, the alleged onset date, through January
29, 2020, the date of the ALJ’s decision.39
III. PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff was born in 1959 and was 55 years old on the alleged onset date.40 From
July 1988 through February 2013, Plaintiff was the owner/operator of a dental practice.41
In April 2013, Plaintiff suffered a hemorrhagic stroke.42 From February to May 2013,
Plaintiff worked at South Central Foundation as a dentist and from July 2014 to August
2015, as a dentist at Anchorage Neighborhood Health Center.43 On December 28, 2018,
the Social Security Administration (“SSA”) determined that Plaintiff was not disabled
37 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
38 A.R. 34.
39 A.R. 34. The Court notes that the date of the ALJ’s decision on January 29, 2020 predates the
date last insured of December 31, 2020. A.R. 24.
40 A.R. 187, 299.
41 At Plaintiff’s hearing before the ALJ, the vocational expert classified Plaintiff’s past work as a
solo practitioner dentist under two categories of work. The vocational expert opined Plaintiff
worked as a dentist, DOT #072.101-010, and as a health care facility administrator, DOT #
187.117-010. A.R. 175–76. The ALJ determined at Step Four that Plaintiff was capable of
performing his past work both as a dentist and as a health care facility administrator. A.R. 33.
42 A.R. 53–84, 468, 537.
43 A.R. 372–83.
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under the applicable rules.44 Plaintiff appeared and testified with representation at a
hearing held on December 20, 2019 in Anchorage, Alaska before ALJ Paul Hebda.45 On
January 29, 2020, the ALJ issued an unfavorable ruling.46 On July 24, 2020, the Appeals
Council denied Plaintiff’s request for review.47 On September 25, 2020, Plaintiff appealed
the Commissioner’s final decision to this Court.48
IV. DISCUSSION
Plaintiff is represented by counsel in this appeal. In his opening brief, Plaintiff
alleges that the ALJ erred in his evaluation of the medical opinions of Richard Blake, PA-
C, and Danelle Winn, Ph.D., resulting in an improperly formulated RFC. He also asserts
the ALJ erred in concluding that Plaintiff could perform his past relevant work as a
dentist.49 The Commissioner argues that “[s]ubstantial evidence, including the
uncontested adverse symptom testimony finding and the opinions of Dr. Dhiman, Dr.
Kiehl, and Dr. Anderson, supports the ALJ’s decision that Plaintiff was not disabled.”50
44 A.R. 200.
45 A.R. 147–50, 161–73.
46 A.R. 19–34.
47 A.R. 1–5.
48 Docket 1.
49 Docket 24 at 13–24.
50 Docket 25 at 4–12.
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A. Weighing of Medical Opinions
Plaintiff applied for Title II benefits on or about October 6, 2017, so the new
regulations apply to his claim.51 Under the new regulations, the definition of what
constitutes a medical opinion has narrowed, focusing on what the claimant can do despite
his impairments and what work-related limitations are present.52 The new regulations
define a medical opinion as follows:
A medical opinion is a statement from a medical source about what you can
still do despite your impairment(s) and whether you have one or more
impairment-related limitations or restrictions in the following abilities:
(i) Your ability to perform physical demands of work activities, such as
sitting, standing, walking, lifting, carrying, pushing, pulling, or other
physical functions (including manipulative or postural functions, such
as reaching, handling, stooping, or crouching);
(ii) Your ability to perform mental demands of work activities, such as
understanding; remembering; maintaining concentration,
persistence, or pace; carrying out instructions; or responding
appropriately to supervision, co-workers, or work pressures in a work
setting;
(iii) Your ability to perform other demands of work, such as seeing,
hearing, or using other senses; and
Your ability to adapt to environmental conditions, such as
temperature or fumes.53
51 A.R. 22.
52 Compare 20 C.F.R. § 404.1527 with 20 C.F.R. § 404.1513(a)(2).
53 20 C.F.R. § 404.1513(a)(2).
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The new regulations provide that the ALJ no longer gives any particular weight to
a medical opinion based on its source, thereby eliminating the treating source rule.54
Instead, the ALJ considers the persuasiveness of a medical opinion based on five factors:
(1) supportability; (2) consistency; (3) relationship with the claimant, including length,
extent, and type of treatment; (4) specialization; and (5) other relevant factors that support
or contradict the medical opinion.55 Supportability and consistency are considered the
most important factors for evaluating persuasiveness.56 Supportability and consistency
are explained as follows in the regulations:
(1) Supportability. The more relevant the objective medical evidence and supporting
explanations presented by a medical source are to support his or her medical
opinion(s) or prior administrative medical finding(s), the more persuasive the
medical opinions or prior administrative medical finding(s) will be.
(2) Consistency. The more consistent a medical opinion(s) or prior
administrative medical finding(s) is with the evidence from other medical
sources and nonmedical sources in the claim, the more persuasive the
medical opinion(s) or prior administrative medical finding(s) will be.57
Generally, these are the only two factors the ALJ is required to address in his decision.58
However, when two or more medical opinions or prior administrative medical findings
54 Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5867–
68 (Jan. 18, 2017) (codified at 20 C.F.R. pts. 404, 416), 20 C.F.R. §§ 404.1520c(a), 416.920c(a)
(for claims filed on or after March 27, 2017).
55 20 C.F.R. § 404.1520c(c).
56 The regulations state, “The factors of supportability . . . and consistency . . . are the most
important factors [the SSA] consider[s] when [the SSA] determine[s] how persuasive [the SSA]
find[s] a medical source’s medical opinions or prior administrative medical findings to be.” 20
C.F.R. § 404.1520c(b)(2) (for claims filed on or after March 27, 2017).
57 20 C.F.R. §§ 404.1520c(c)(1)-(2), 416.920c(c)(1)-(2).
58 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2) (“[W]e will explain how we considered the
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“about the same issue are both equally well-supported . . . and consistent with the record
. . . but are not exactly the same,” the ALJ must explain how “the other most persuasive
factors” were considered.59
1. Richard Blake, PA-C
PA Blake was Plaintiff’s treating provider from at least January 2014 through 2019.
In June 2017, PA Blake opined that Plaintiff could never work on a full-time basis, use his
hands for fine or gross manipulation, or raise his arms over his shoulders. He also opined
that Plaintiff had moderate pain that would cause him to be off task for 30% of the
workday. PA Blake noted that his “responses [in Plaintiff’s attorneys’ medical source
statement form were] subjective — Functional Capacity Exam [was] not performed.”60
The ALJ determined that PA Blake’s June 2017 medical opinion was not
persuasive. The ALJ reasoned that PA Blake “did not support the opinion with objective
evidence, stating that his responses [were] subjective and that he did not perform a
functional capacity exam.” Specifically, the ALJ pointed out that PA Blake’s treatment
notes did not support the degree of limitation opined by PA Blake “as they generally
indicate[d] [Plaintiff]’s neurological examinations were within normal limits.”61 The ALJ
specifically cited the treatment record from January 2018 in which Plaintiff reported to PA
supportability and consistency factors for a medical source’s medical opinions or prior
administrative medical findings in your determination or decision.”).
59 20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3) (for claims filed on or after March 27, 2017).
60 A.R. 428–29.
61 A.R. 32.
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Blake that he was “at 95% of where he was after the first stroke.”62 The ALJ also noted
that Dr. Downs’s examination of Plaintiff in October 2018 showed that although Plaintiff
“complained about right sided weakness, loss of sensation, and coordination,” Dr. Downs
indicated that Plaintiff’s complaints were not borne out by his examination.63
Plaintiff asserts that the ALJ failed to properly evaluate PA Blake’s opinion. He
argues that the “ALJ should have found PA-C Blake’s opinion very persuasive because it
is well supported by his findings and consistent with other findings on the record.”64 The
Commissioner disagrees, arguing that substantial evidence supports the ALJ’s
assessment of PA Blake’s opinion under the new medical opinion regulations.65
The Court’s review of the record reveals that PA Blake’s treatment notes indicate
Plaintiff had normal neurological examinations after his 2013 stroke through the date of
PA Blake’s June 2017 opinion.66 Plaintiff saw PA Blake on January 10, 2014 for follow up
after an emergency room visit on April 6, 2013 for dizziness and nausea, which was later
diagnosed as a hemorrhagic stroke.67 At the January 2014 appointment, PA Blake
62 A.R. 33, 433–34.
63 A.R. 33, 497.
64 Docket 24 at 16.
65 Docket 25 at 6–9.
66 E.g., A.R. 436–37, 440, 443, 445–46, 449, 452, 455, 469, 473, 477.
67 A.R. 53–84, 468, 537. The record of the CT scan on April 6, 2013 shows the CT of the head
was considered normal. A.R. 80. However, in a later record by Jeffrey Sponsler, M.D., at the
Alaska Brain Center, LLC, Dr. Sponsler reported viewing an MRI image on Plaintiff’s phone from
April 8, 2013, “clearly showing large infarct.” A.R. 537.
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assessed Plaintiff with a “personal history of transient ischemic attack [TIA], and cerebral
infarction without residual deficits.” Plaintiff had 5/5 strength in the upper and lower
extremities and a “subtle slight weakness with pedal pulls,” with a normal gait and normal
neurologic examination.68 At appointments after August 28, 2015, PA Blake observed 5/5
strength in the upper and lower extremities, a normal gait, and normal neurological
examinations.69 In July 2016, PA Blake noted that Plaintiff had a history of CVA with
“minimal residual effects” and that Plaintiff reported that he had been “just taking a 325mg
aspirin daily.”70 However, in the same timeframe, despite normal neurological
examinations, Plaintiff reported having some residual effects from the 2013 stroke,
including tingling and shooting pains on his right side as well as significant fatigue
throughout the day.71
The record after PA Blake’s June 2017 opinion contains some evidence of a
second stroke. Specifically, at a follow up visit with PA Blake in January 2018, Plaintiff
reported that he thought he may have experienced another small stroke while on vacation
in June 2017. However, Plaintiff reported that he thought he was “probably 95% back to
where he was after that first stroke [in 2013].” At the same time, PA Blake observed that
“there still are some issues . . . notable in [Plaintiff’s] speech and word finding.”72 PA
68 A.R. 469.
69 E.g., A.R. 442–46, 448–49.
70 A.R. 443.
71 A.R. 436, 440.
72 A.R. 433–34.
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Blake continued to consider Plaintiff’s neurological examinations normal, but also noted,
“as far as his speech there is a very slight stutter which is similar to what I remember. I
do not appreciate any worsening of any of his previous symptoms.”73
On January 10, 2019, Plaintiff presented to the emergency department at Mat-Su
Regional Medical Center with lightheadedness, vertigo, and slurred speech.74 On the
same date, Plaintiff underwent a CT brain scan. The CT showed a “[l]eft cerebellar stroke,
nonacute, but new since the 2013 exam. No hemorrhagic component is evident.” The
carotid doppler ultrasound showed bilateral intracranial carotid calcifications and no flow
apparent in the left vertebral artery.75 On January 18, 2019, Plaintiff saw Jeffrey Sponsler,
M.D., for follow up after MRI brain testing. Dr. Sponsler performed a full neurological
examination and concluded it was a normal examination. He observed clear speech with
no slurring. Dr. Sponsler reviewed the MRI taken on January 11, 2019 and noted a
“chronic infarction in the left side of the cerebellum, in the distribution of the left posterior
inferior cerebellar artery” and “mild-to-moderate supratentorial chronic white matter
microvascular ischemic changes.” He also noted “[m]ild sensory deficits [in the] right arm
and right leg.”76 On January 24, 2019, Plaintiff followed up with PA Blake. He reported
doing well with no significant problems. Plaintiff’s neurological examination was normal.77
73 A.R. 431, 434.
74 A.R. 549.
75 A.R. 560–61.
76 A.R. 532–42.
77 A.R. 520–23. PA Blake noted that imaging taken on January 10, 2019, showed “the old area
of infarction but nothing new.” A.R. 520. However, in the Court’s medical record, the report for
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In August 2019, Plaintiff reported to PA Blake that he was “deal[ing] with dizziness on a
chronic basis” and that he continued to work on a part-time basis, but that “there are days
when he literally cannot do the job and will postpose some of [his dental] patients . . .”78
As noted above, PA Blake opined that Plaintiff would not be able to use his hands
for gross or fine manipulation or raise his arms above his shoulders on a full-time basis.79
Such limitations would clearly affect Plaintiff’s ability to perform his past work as a dentist.
The Dictionary of Occupational Titles (“DOT”)’s dentist position (DOT #072.101-010)
requires frequent fingering, handling, and reaching.80 The job of dentist also requires a
high degree of aptitude ability (highest 1/3) for motor coordination and manual dexterity
and an extremely high aptitude ability (top 10%) for finger dexterity.81 The health care
facility administrator position (DOT #187.117-010) requires occasional reaching,
handling, and fingering.82
Yet, the ALJ did not address the supportability or consistency of PA Blake’s
opinions that Plaintiff could not raise his arms above his shoulders and could not use his
hands for fine or gross manipulation on a full-time basis. The ALJ’s conclusion that
the imaging taken on January 10, 2019 states, “[t]here is tissue loss on the left cerebellum, new
since the previous exam.” A.R. 561.
78 A.R. 44.
79 A.R. 428.
80 Docket 24 at 19. See also DICOT #072.101-010,
81 DICOT #072.101-010, 1991 WL 646699.
82 DICOT #187.117-010, 1991 WL 671346.
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Plaintiff’s normal neurological examinations undercut the degree of limitations opined by
PA Blake does not address PA Blake’s opinions on the limitations to Plaintiff’s arms and
hands. Moreover, the Court’s review of the record shows that Plaintiff reported right sided
numbness and pain and left shoulder pain at follow up visits with PA Blake.83 Additionally,
after PA Blake’s June 2017 opinion, there was evidence of an MRI of Plaintiff’s left
shoulder showing a near circumferential labral tear and fairly large inferior osteophytes at
the AC joint.84 In October 2018, Stanford Downs, M.D., noted that Plaintiff’s fine motor
manipulation was “extremely slow and deliberate on the right but with no dyspraxia” and
that Plaintiff’s left side manipulation was “a little bit slow and deliberate but not to the
same degree and again no dyspraxia.”85 At an emergency room visit in January 2019,
Plaintiff reported “chronic unchanged right sided deficits at baseline secondary to prior
stroke.”86
The Commissioner points out that the ALJ’s RFC determination is more closely
aligned with the testimony of medical expert Nitin Dhiman, M.D., that Plaintiff had no
manipulation restrictions on the right and was limited to frequent gross and fine
manipulation on the left, and the Court notes that Plaintiff does not challenge this aspect
of the ALJ’s decision.87 But Dr. Dhiman also testified, upon questioning by Plaintiff’s
83 A.R. 436 (residual tingling and shooting pains on his right side), 430 (left shoulder pain).
84 A.R. 525–26.
85 A.R. 496.
86 A.R. 549.
87 Docket 25 at 7; A.R. 152–54.
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attorney, that Plaintiff “could have suffered from clumsy hand syndrome, where he had a
clumsy hand dysarthria. So, basically, [a] claimant such as [this] would have trouble
speaking and they would have problems grabbing things and so on and so forth. So, it’s
definitely possible [INAUDIBLE], affect the non-affected hand.”88
In sum, the ALJ did not adequately address the supportability or consistency of PA
Blake’s opinions regarding Plaintiff’s ability to perform fine and gross manipulation or lift
his arms above the shoulder. This error is not harmless because Plaintiff’s previous work
as a dentist requires frequent fingering, handling, and reaching and a high degree of
aptitude ability for motor coordination and manual dexterity, as well as an extremely high
aptitude ability for finger dexterity.89 His past work as an owner/operator of a dental
practice, classified by the vocational expert as a health care facility administrator, requires
occasional fingering, handling, and reaching.90 As a result of the ALJ’s error, the RFC
may not include all of Plaintiff’s limitations and may preclude Plaintiff from performing his
past work.
2. Danelle Winn, Ph.D.
On December 4, 2018, Plaintiff saw Danelle Winn, Ph.D., for a diagnostic
examination. Dr. Winn observed that Plaintiff was alert with clear and goal-directed
thought processes and his speech was clear, but he had a labored, somewhat broken,
88 A.R. 156.
89 DICOT #07.101-010, 1991 WL 646699.
90 DICOT #187.117-010, 1991 WL 671346.
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rate of speech. Plaintiff’s mental status examination was normal, and his overall
intellectual functioning fell within the average range.91 Based on a personal interview,
psychological testing, and a mental status examination, Dr. Winn opined,
“While [Plaintiff] does view himself as cognitively capable of engaging work
as a dentist when he is not feeling a great degree of physical fatigue but
worries about his level of attention and organization of his thinking when he
is tired (which has been more frequent over the past two years) and I agree
with his assessment in that regard, he certainly is cognitively capable of
understanding, remembering and carrying out simple directions of a degree
of difficulty that would be required of repetitive work activities as well as of
managing his financial affairs in his own best interest.”92
The ALJ determined that this opinion was not persuasive “because it [was] vague
and [did] not address [Plaintiff’s] ability to perform a range of work, including complex
work in any kind of detail.” The ALJ also determined that Dr. Winn’s opinion about the
effect of fatigue was “not supported by her testing or examination” because her evaluation
showed that Plaintiff had a full-scale IQ of 106 with good memory, recall, concentration,
calculations, fund of information, abstractions, and insight and that the testing did not
“reflect any aspect of cognitive functioning that was even in the low average range and
thus the degree of any deterioration [was] not sufficient enough to be consistent with a
diagnosis of even a mild vascular dementia.” The ALJ noted that the “record is consistent
with a lack of cognitive decline, which would not preclude the claimant’s ability to perform
even complex work.”93
91 A.R. 506–14.
92 A.R. 513.
93 A.R. 33.
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Plaintiff asserts that the ALJ improperly discounted Dr. Winn’s opinion on fatigue
for “vagueness” without attempting to contact her for clarification. Plaintiff cites Lockhart
v. Comm’r of Soc. Sec., a district court case from the Eastern District of California, for the
proposition that the ALJ should have attempted to clarify the record by recontacting Dr.
Winn regarding her fatigue opinion. In Lockhart, the ALJ had indicated that the plaintiff’s
physician’s use of the word “deficient” to describe the plaintiff’s concentration ability was
vague. Therefore, the district court determined that the ALJ acknowledged that the
medical opinion was ambiguous.94 And, in the Ninth Circuit, “[a]mbiguous evidence, or
the ALJ’s own finding that the record is inadequate to allow for proper evaluation of the
evidence, triggers the ALJ’s duty to ‘conduct an appropriate inquiry.’”95 Accordingly, the
district court in Lockhart remanded to allow further development of the record.96
Citing Ford v. Saul, a recent Ninth Circuit case, the Commissioner contends that
ALJs are not required to base the RFC on vague opinions.97 In Ford, the Ninth Circuit
determined that because the ALJ had years of medical records and multiple medical
opinions to inform her decision, the duty to develop the record regarding the meaning of
“fair” and “limited” in one examining physician’s opinion was not triggered.98 Like Ford,
the record in this case contains years of medical evidence with numerous reports of
94 Lockhart v. Comm’r of Soc. Sec., 2015 WL 517049, at *9 (E.D. Cal. Sept. 3, 2015).
95 Tonapetyan v. Halter, 242 F. 3d 1144, 1150 (9th Cir. 2001) (internal citations omitted).
96 Lockhart, 2015 WL 517049, at *9.
97 Docket 25 at 10 (citing Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020)).
98 Ford, 950 F.3d at 1156.
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fatigue by Plaintiff in the record.99 Therefore, the ALJ had ample medical records to inform
his decision and was not required to recontact Dr. Winn regarding what the ALJ perceived
to be her “vague” opinion.
Plaintiff also alleges that the ALJ “failed to properly evaluate the opinion of Dr. Winn
concerning the effects of Plaintiff’s fatigue.”100 The Commissioner responds that the ALJ
properly addressed the supportability and consistency of Dr. Winn’s opinion and that
substantial evidence supports the ALJ’s assessment under the new medical opinion
regulations.101 While the ALJ’s analysis of Dr. Winn’s opinion adequately addresses the
portion of Dr. Winn’s assessment regarding Plaintiff’s cognitive capabilities, it does not
address the effect of fatigue.102 Plaintiff’s testimony and the medical record show that
Plaintiff reported fatigue as a recurring symptom after his stroke in 2013. For example,
at the hearing, Plaintiff testified that even though he slept seven to eight hours at night on
average, beginning after his first stroke, he took naps regularly during the day due to
fatigue.103 Plaintiff also testified that he believed that he was “let go” from his last job due
to his medical conditions. Specifically, he indicated that he was only able to treat about
99 See infra., n. 105.
100 Docket 24 at 20–21.
101 Docket 25 at 10–12.
102 Garrison v. Colvin, 759 F.3d 995, 1012–13 (9th Cir. 2014) (“[A}n ALJ errs when he rejects a
medical opinion or assigns it little weight while doing nothing more than ignoring it, asserting
without explanation that another medical opinion is more persuasive, or criticizing it with
boilerplate language that fails to offer a substantive basis for his conclusion.”).
103 A.R. 169–70.
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10 patients a day instead of the 20 patients he was expected to treat at the clinic where
he last practiced as a dentist.104 Plaintiff also reported sleep interruption and fatigue
symptoms to his medical providers during the relevant period.105
In sum, although the ALJ did not have a duty to recontact Dr. Winn regarding her
purportedly “vague” opinion, the ALJ did not adequately address the supportability and
consistency of Dr. Winn’s opinion regarding Plaintiff’s fatigue. The Court will remand on
this issue.
3. The RFC and Step Four of the Sequential Analysis
The RFC for Plaintiff includes frequent pushing and pulling with the right upper
extremity and occasional pushing and pulling with the left extremity. It also includes
frequent reaching, handling, fingering, and feeling with the non-dominant left upper
extremity and no limitation with the right upper extremity. The RFC does not contain any
limitations due to fatigue.106
Plaintiff asserts that the “ALJ’s failure to properly evaluate” PA Blake’s and Dr.
Winn’s opinions resulted in an incomplete RFC and improper determination at Step Four
104 A.R. 162–63.
105 A.R. 355 (daily activities include “sometimes a 3-4 hour nap”), 436 (residual effects from the
CVA, including significant fatigue throughout the day), 439–40 (fatigues fairly easily and although
Plaintiff was working part-time, he reported his fatigue would make it “very difficult” for him to
complete a 40-hour work week), 452 (might be a little tired but he thinks it’s appropriate for his
age), 471 (sleep interruptions), 495 (fatigues faster), 507 (“views himself as being more easily
fatigued and forgetful intermittently over the past several years, which he attributes to a cerebral
vascular accident in 2013 and possibly a second several years later”), 508 (on days he is feeling
more fatigued, he will avoid driving), 531 (often feels tired, fatigued, or sleeping during daytime).
106 A.R. 25–26.
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that Plaintiff was capable of returning to his past work as a dentist.107 He also alleges
that “by ignoring the effects of Plaintiff’s fatigue on his ability to perform [ ] work-related
tasks,” the ALJ did not consider all of Plaintiff’s impairments.108 The Commissioner does
not specifically address Plaintiff’s assertions regarding the RFC or the allegation that the
ALJ erred at Step Four.109
As set forth above, because the ALJ did not adequately address the supportability
and consistency of PA Blake’s opinion regarding Plaintiff’s gross and fine manipulation
and upper extremities limitations or Dr. Winn’s opinion regarding Plaintiff’s fatigue, the
RFC may not include all of Plaintiff’s limitations. Additionally, based on the ALJ’s first
hypothetical,110 the vocational expert opined that Plaintiff could perform as a dentist and
as a health care facility administrator.111 Given the possibility that the ALJ would have
formulated a different RFC for Plaintiff and provided different hypotheticals to the
107 Docket 24 at 13–24.
108 Docket 24 at 24.
109 Docket 25 at 4–12.
110 The ALJ’s first hypothetical was as follows:
And let’s start with the following hypothetical, where I have an individual of the claimant’s [ ] age[,]
education, past work, experience. Would be able to perform light level work as defined by the
Social Security Administration, but with the following limitations. Pushing and pulling with the
upper extremities would be frequent on the right, occasional on the left. Frequent balancing.
Occasional climbing of ramps and stairs, stooping, kneeling, crouching and crawling. No climbing
of ladders, ropes or scaffolding. Reaching, handling, fingering, feeling, could all be at the frequent
level on the left upper extremity. We would have the avoidance of moderate exposure to non-
weather related extreme cold, extreme heat, wetness, humidity, noise, and vibration. And we
would have the avoidance of all exposures to moving hazardous machinery and unprotected
heights. A.R. 176.
111 A.R. 177.
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vocational expert, the ALJ’s errors were not harmless and require remand for further
proceedings. Because the ALJ’s failure to properly address PA Blake’s and Dr. Winn’s
opinions could also impact the ALJ’s findings at Step Four, the Court does not address
Plaintiff’s argument that substantial evidence does not support the ALJ’s determination
that Plaintiff could perform work as a dentist and health care facility administrator.
C. Scope of Remand
Plaintiff asks the Court to vacate the final agency decision and remand for further
administrative proceedings.112 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.”113
In this case, the proper remedy is reversal and remand for further administrative
proceedings and the issuance of a new decision with appropriate findings at each step of
the sequential evaluation.
On remand, the ALJ shall discuss the supportability and consistency of PA Blake’s
manipulation and upper extremity limitations and Dr. Winn’s opinion regarding the effects
of fatigue under the new regulations. The ALJ will reevaluate the RFC, reassess Step
Four, and proceed to Step Five as necessary.
112 Docket 24 at 24.
113 Treichler, 775 F.3d at 1099 (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)).
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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 Plaintiff’s
request for relief at Docket 24 is GRANTED; the Commissioner’s motion at Docket 25 is
DENIED; and this matter is REMANDED for further proceedings consistent with this order.
The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 18th day of January, 2022 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
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