Findsen v. Kijakazi

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
MATTHEW F.,1
Plaintiff,
v.
KILOLO KIJAKAZI,
Acting Commissioner of Social Security,
Defendant.
Case No. 3:21-cv-00187-SLG
DECISION AND ORDER
On or about October 1, 2018, Matthew F. (“Plaintiff”) protectively filed an
application for disability insurance benefits (“DIB”) under Title II of the Social
Security Act (“the Act”)2 alleging disability beginning October 1, 2016.3 Plaintiff has
1 Plaintiff’s name is partially redacted in compliance with Fed. R. Civ. P. 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 Titles II and XVI. 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.”) 13. The application summaries and confirmation letters, not the
applications themselves, appear in the Court’s record. Plaintiff contacted the Social Security
Administration on October 1, 2018 to schedule a telephone appointment to complete his
application for benefits. A.R. 248. A subsequent letter and the application summary confirm his
application for benefits was completed on October 19, 2018. A.R. 250, 252. Pursuant to 20
C.F.R. § 416.340-345, a protective filing date establishes the earliest possible application date
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exhausted his administrative remedies and filed a Complaint seeking relief from
this Court.4 Plaintiff’s Opening Brief asks the Court to reverse and remand the
agency’s decision for an award of benefits, or in the alternative, for further
administrative proceedings.5 The Commissioner filed an Answer and Response
Brief.6 Plaintiff filed a Reply Brief on January 24, 2022.7
The Commissioner agrees with Plaintiff that the final decision contains legal
errors and should be reversed.8 However, the parties disagree on the appropriate
remedy. Plaintiff seeks reversal and remand directing the immediate payment of
benefits, while the Commissioner contends that a remand for further proceedings
is warranted.9
Oral argument was not requested and was not necessary to the Court’s
decision. This Court has jurisdiction to hear an appeal from a final decision of the
based on a claimant’s oral inquiry about eligibility or a verbal or written statement of intent to file
for benefits. Therefore, the date of Plaintiff’s initial telephone call to schedule time to complete
his application is considered Plaintiff’s application filing date.
4 Docket 1 (Plaintiff’s Compl.).
5 Docket 15 (Plaintiff’s Br.).
6 Docket 13 (Answer); Docket 21 (Defendant’s Br.).
7 Docket 22 (Reply).
8 Docket 21 (Defendant’s Br.).
9 Docket 21 (Defendant’s Br.); Docket 22 (Reply).
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Commissioner of Social Security.10 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.11 “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.”12 Such evidence must be “more than a mere
scintilla,” but may be “less than a preponderance.”13 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.14 If the evidence is susceptible to more than one rational
interpretation, the ALJ’s conclusion must be upheld.15 A reviewing court may only
consider the reasons provided by the ALJ in the disability determination and “may
10 42 U.S.C. § 405(g).
11 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)).
12 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of New York v.
NLRB, 305 U.S. 197, 229 (1938)).
13 Id.; Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975).
14 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
15 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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not affirm the ALJ on a ground upon which she did not rely.”16 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.”17 Finally, the ALJ has a “special
duty to fully and fairly develop the record and to assure that the claimant’s interests
are considered.”18 This duty exists “even when the claimant is represented by
counsel.”19
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.20 In addition, Supplemental Security
Income (“SSI”) may be available to individuals who do not have insured status
16 Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).
17 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotations and citations
omitted).
18 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).
19 DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991) (quoting Brown v. Heckler, 713 F.2d
441, 443 (9th Cir.1983)).
20 42 U.S.C. § 423(a).
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under the Act but who are age 65 or older, blind, or disabled.21 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.22
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.23
The Commissioner has established a five-step process for determining
disability within the meaning of the Act.24 A claimant bears the burden of proof at
steps one through four in order to make a prima facie showing of disability.25 If a
21 42 U.S.C. § 1381a.
22 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
23 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
24 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
25 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).
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claimant establishes a prima facie case, the burden of proof then shifts to the
agency at step five.26 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.”27 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.”28 The ALJ determined that Plaintiff had not engaged in substantial activity
since October 1, 2016, the alleged onset date.29
Step 2. Determine whether the claimant has a medically severe impairment
or combination of impairments. A severe impairment significantly limits a
claimant’s physical or mental ability to do basic work activities and does not
consider age, education, or work experience. The severe impairment or
combination of impairments must satisfy the twelve-month duration
requirement.30 The ALJ determined that Plaintiff had the following severe
impairments: cervical spine disorder; status post pelvic fracture; carpal tunnel
26 Treichler, 775 F.3d at 1096 n.1; Tackett, 180 F.3d at 1098 (emphasis in original).
27 Tackett, 180 F.3d at 1101.
28 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
29 A.R. 15.
30 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
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syndrome (CTS); and migraines.31 The ALJ did not find any non-severe
impairments.32
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.33 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 1.34
Before proceeding to step four, a claimant’s residual functional capacity
(“RFC”) is assessed.35 Once determined, the RFC is used at both step four and
31 A.R. 15. The hearing decision and initial Disability Determination Explanation list “Migraine”
as a severe impairment. A.R. 66. However, Plaintiff suffers from cervicogenic tension-type
headaches, not migraines. The use of “migraine” appears to be a misstatement. At the initial
level, the State Agency reviewing physician acknowledges the impairments from “chronic
headache syndrome.” A.R. 69. Further, throughout the hearing decision, the terms “migraine,”
“migraine headaches,” “headaches,” “chronic headaches,” and “cervicogenic headaches” are
used interchangeably. See A.R. 15-17, 19. This inconsistent terminology is not critical to the
outcome in this matter, but the Commissioner should be mindful of such distinctions.
32 A.R. 15.
33 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
34 A.R. 16.
35 20 C.F.R. § 416.945.
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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.36 The ALJ determined that Plaintiff had the
residual functional capacity to perform light work with the following limitations: he
could never climb ladders, ropes, or scaffolds; he could frequently crawl and
handle, finger, and feel bilaterally; and he must avoid concentrated exposure to
extreme cold, excessive vibration, and hazards.37
Step 4. Determine whether the claimant is capable of performing past
relevant work. At this step, 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.38 Otherwise, the evaluation process moves to the fifth
and final step. The ALJ determined that Plaintiff was unable to perform any past
relevant work as a carpenter and carpenter/laborer supervisor as actually and
generally performed.39
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
36 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
37 A.R. 16-17.
38 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
39 A.R. 20-21.
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of the RFC. If so, the claimant is not disabled. If not, the claimant is considered
disabled.40 The ALJ determined that there were jobs that existed in significant
numbers in the national economy that Plaintiff could perform, including mailroom
clerk (DOT#209.687-026), storage rental clerk (DOT#295.367-026), and sales
attendant (DOT#299.677-010).41
The ALJ concluded that Plaintiff was not disabled within the meaning of the
Social Security Act at any time from October 1, 2016, the alleged disability onset
date, through January 13, 2021, the date of the ALJ’s decision.42
III. PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff was born in 1971 and was 45 years old on his alleged onset date.43
Plaintiff was 50 years old on his date last insured of December 31, 2021.44 In an
application for disability insurance benefits filed on October 1, 2018, Plaintiff
40 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
41 A.R. 21-22.
42 A.R. 22.
43 A.R. 21.
44 “The date last insured (DLI) is the last day of the quarter a claimant meets insured status for
disability or blindness. For title II Disability Insurance Benefit (DIB) claims, adjudicators cannot
establish onset after the DLI.” Program Operations Manual System (POMS) § DI 25501.320.
The POMS, issued by the Social Security Administration (SSA), do not have the force of law,
but it is persuasive authority. Larson v. Saul, 967 F.3d 914, 925 (9th Cir. 2020), cert. denied sub
nom. Larson v. Kijakazi, 142 S. Ct. 896 (2022) (citing Warre v. Commissioner of the Soc. Sec.
Admin., 439 F.3d 1001, 1005 (9th Cir. 2006)).
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alleged his disability began on October 1, 2016.45 Before his stated disability onset
date, he worked as a carpenter and carpenter/laborer supervisor.46
On May 7, 2019, the Social Security Administration (“SSA”) determined
Plaintiff was not disabled under the applicable rules.47 Plaintiff requested a hearing
before an Administrative Law Judge. The hearing was originally scheduled for
March 20, 2020 but postponed due to the extraordinary circumstance presented
by the COVID-19 pandemic. On July 15, 2020, Plaintiff and his representative
appeared telephonically for the rescheduled hearing. The hearing was postponed
again because additional evidence was outstanding.48
On November 9, 2020, Plaintiff appeared and testified telephonically with
representation at the final hearing.49 A medical expert (“ME”) and vocational expert
(“VE”) also testified by telephone.50 On January 13, 2021, the ALJ issued an
unfavorable decision.51 On July 1, 2021, the Appeals Council denied Plaintiff’s
45 A.R. 248-252.
46 A.R. 20.
47 A.R. 73.
48 A.R. 32.
49 A.R. 13.
50 A.R. 35-45 (medical expert testimony); A.R. 52-59 (vocational expert testimony).
51 A.R. 10-27.
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request for review.52 On August 9, 2021, Plaintiff appealed the Commissioner’s
final decision to this Court.53
IV. DISCUSSION
Plaintiff is represented by counsel in this appeal. The Commissioner
concedes the ALJ’s decision contains reversable legal errors.54 Specifically, the
parties agree the ALJ: (1) did not adequately evaluate whether Plaintiff’s
headaches impairment medically equals Listing 11.02 per SSR 19-4p; (2) did not
adequately evaluate Plaintiff’s subjective complaints related to headaches; and (3)
did not adequately consider the factors of supportability and consistency when
evaluating the persuasiveness of the opinions of Robert Smiley, M.D., or John
Bursell, M.D., as required by the recently revised medical regulations.55
Therefore, the parties’ disagreement in this case focuses on the scope of
the remand. The Commissioner argues that significant factual conflicts exist, so
the case should be remanded for further proceedings.56 Plaintiff contends any
factual conflicts that exist are immaterial, and the case should be remanded for an
immediate award of benefits.
52 A.R. 1.
53 Docket 1.
54 Docket 21 at 2.
55 Docket 21; Docket 22.
56 Docket 15; Docket 21; Docket 22.
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A. Legal Standard for Remand
The decision whether to remand for further proceedings or for immediate
payment of benefits is within the discretion of the court.57 When prejudicial error
has occurred, “the proper course, except in rare circumstances, is to remand to
the agency for additional investigation or explanation.”58
To determine which type of remand is appropriate, a court follows a three-
step analysis.59 Under the credit-as-true rule, in order to remand for payment of
benefits, a court must conclude: (1) the ALJ has failed to provide legally sufficient
reasons for rejecting evidence, whether claimant testimony or medical opinion; (2)
the record has been fully developed and further administrative proceedings would
serve no useful purpose; and (3) if the improperly discredited evidence were
credited as true, the ALJ would be required to find the claimant disabled on
remand.60 However, “even if all three requirements are met, [a 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
57 Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (remanding for determination of
benefits where the panel was “convinced that substantial evidence does not support the
Secretary’s decision, and because no legitimate reasons were advanced to justify disregard of
the treating physician’s opinion”).
58 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014).
59 Garrison v. Colvin, 759 F.3d at 1020 (9th Cir. 2014).
60 Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017) (internal citations and quotations
omitted).
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as to whether the claimant is, in fact, disabled within the meaning of the Social
Security Act.’”61
Plaintiff asserts that all three requirements are met and there is no serious
doubt that Plaintiff is disabled. Defendant asserts that there are factual conflicts in
the existing record, such that a remand would serve the useful purpose of fully
developing the record. Each of the requirements for remand for immediate
payment of benefits is discussed in turn.
B. The ALJ Failed to Provide Legally Sufficient Reasons for Rejecting
Evidence
In this case, the parties agree that the ALJ failed to provide legally sufficient
reasons for rejecting Plaintiff’s subjective complaints as well as the opinions of both
treating provider Dr. Bursell and testifying medical expert Dr. Smiley.
1. Plaintiff’s Subjective Complaints
The ALJ determined that Plaintiff’s medically determinable impairments
could reasonably be expected to cause the alleged symptoms; however, she also
determined that Plaintiff’s “statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely consistent with the medical
61 Brown-Hunter, 806 F.3d at 495 (quoting Garrison, 759 F.3d at 1021).
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evidence and other evidence in the record for the reasons explained in this
decision.”62
However, the ALJ did not specifically identify which of Plaintiff’s claims were
inconsistent with the medical evidence.63 “To ensure that review of the ALJ’s
credibility determination is meaningful, and that the claimant’s testimony is not
rejected arbitrarily,” an ALJ must “specify which testimony she finds not credible,
and then provide clear and convincing reasons, supported by evidence in the
record, to support that credibility determination.”64 General findings, such as an
ALJ’s summary of the medical evidence, do not satisfy this requirement.65 The
Commissioner concedes the ALJ failed to adequately evaluate Plaintiff’s subjective
complaints related to his headaches,66 yet the agency requests a remand to allow
the ALJ to “reevaluate Plaintiff’s subjective allegations.”67 But the Ninth Circuit has
held that the Commissioner “should not have another opportunity to show that
62 A.R. 18.
63 Lambert v. Saul, 980 F.3d 1266, 1277-1278 (9th Cir. 2020) (“Our precedents plainly required
the ALJ to do more than was done here, which consisted of offering non-specific conclusions
that Lambert’s testimony was inconsistent with her medical treatment”).
64 Smith v. Kijakazi, 14 F.4th 1108, 1112 (9th Cir. 2021) (quoting Brown-Hunter, 806 F.3d at 489).
65 Lambert, 980 F.3d at 1277 (explaining that a reviewing court may not “take a general
finding—an unspecified conflict between [c]laimant’s testimony … and [his] reports to doctors—
and comb the administrative record to find specific conflicts”) (citing Burrell v. Colvin, 775 F.3d
1133, 1138 (9th Cir. 2014)).
66 Docket 21 at 2.
67 Docket 21 at 6.
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[Plaintiff] is not credible any more than [Plaintiff] had he lost, should have an
opportunity for remand and further proceedings to establish his credibility."68 In
sum, the ALJ did not provide clear and convincing reasons supported by
substantial evidence for rejecting Plaintiff’s subjective symptom complaints, and
affording another opportunity for the Commissioner to do so is unwarranted.
2. Medical Opinion of Treating Physician John Bursell, M.D.
Dr. Bursell provided two medical source opinions, one in October 2018 and
one in February 2020.69 He opined Plaintiff is unable to consistently participate in
a work environment and would be absent more than ten workdays per month due
to his symptoms.70 The ALJ found Dr. Bursell’s opinions unpersuasive, as
unsupported by objective findings and not consistent with the totality of the
record.71
The ALJ acknowledged the record contains “objective findings pertaining to
the claimant’s ongoing cervical/neck pain, including tenderness to palpitation,” but
explained that the “overall record shows improvements in [Plaintiff’s] symptoms…
which [Plaintiff] has reported as beneficial in improving in pain and allowing him to
68 Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir. 2004).
69 A.R. 377-378, 406-407, 657-658.
70 Id.
71 A.R. 20.
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be more physically active.”72 The ALJ did not provide any specific examples or
citations to support this contention.
The Commissioner concedes the ALJ did not adequately consider the
factors of supportability and consistency when evaluating the persuasiveness of
the opinion of Dr. Bursell.73
3. Medical Opinion of Testifying Medical Expert Robert Smiley, M.D.
At the hearing, Dr. Smiley testified that “if I am to accept the persistent
complaint of disabling headaches established by the record then I would have to
say that [Plaintiff’s cervicogenic headaches equal] Listing 11.02(D).”74 While Dr.
Smiley did make a broad statement that the “problem [he always has] with chronic
pain syndromes and chronic headache is that it is all subjective,” he indicated there
was no reason to disbelieve Plaintiff’s subjective complaints and instead testified
that the medical record contained “plenty” about headaches being a persistent
problem.75 Dr. Smiley further acknowledged, “we don’t have a claim meter to
objectively measure the severity of the pain or the headaches.”76
72 A.R. 20.
73 Docket 21 at 2.
74 A.R. 38-39.
75 A.R. 39.
76 A.R. 38-39.
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Dr. Smiley also opined that “in spite of his opioid therapy, on many days, his
headaches are disabling” and agreed with Plaintiff’s treating physician that it was
reasonable to conclude that Plaintiff would be absent from work on a chronic basis.
However, whereas Dr. Bursell opined Plaintiff would be absent ten days each
month, Dr. Smiley opined that Plaintiff would be absent at least three workdays per
month.77 Whether Plaintiff’s symptoms would cause him to miss ten days as his
treating doctor opined, or three days, as the testifying ME opined, or some number
of days in between, this factual conflict is immaterial, because the VE testified that
Plaintiff would not be able to sustain employment “if there is an ongoing pattern of
two or more absences per month.”
The ALJ gave little weight to the testimony of Dr. Smiley, providing the
doctor’s testimony was “not completely consistent with the medical evidence
during the relevant period” and his opinion was based on claimant’s subjective
complaints.78
As with Dr. Bursell, the Commissioner concedes the ALJ did not adequately
consider the factors of supportability and consistency when evaluating the
persuasiveness of the opinion of Dr. Smiley.79
77 A.R. 44-45, 58-59, 658. See also Smith v. Saul, 820 F. App'x 582, 586 (9th Cir. 2020)
(remand for calculation and award of benefits where VE finds no jobs for individual with
limitations opined by treating physician).
78 A.R. 20.
79 Docket 21 at 2.
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In sum, the Court agrees with the parties that the ALJ failed to provide legally
sufficient reasons for rejecting Plaintiff’s symptom complaints and the medical
opinions of Drs. Bursell and Smiley. Therefore, the first requirement of the credit-
as-true analysis has been met.
C. Development of the Record
The Court next considers whether “the record has been fully developed and
further administrative proceedings would serve no useful purpose.”80 Further
proceedings are only necessary when there are significant factual conflicts
between the rejected testimony and the objective medical evidence,81 such that
the record is “uncertain and ambiguous.”82
The Commissioner maintains there are significant factual conflicts and
ambiguities in the medical record that necessitates further administrative
proceedings. Specifically, the Commissioner contends Dr. Bursell’s opinion
conflicts with the medical record indicating Plaintiff reported that pain medication
helps control his symptoms, he “was working on exercise, using an exercise bike,
80 Treichler v. Comm'r of Soc. Sec. Admin., 775 F3d 1090, 1101 (9th Cir. 2014) (citing Garrison,
759 F.3d at 1020).
81 Treichler, 775 F.3d at 1105.
82 Id. at 1105, 1107.
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eating well, and maintaining his weight,” and “[n]otably, he did not report that he
was still bed ridden.”83
The Ninth Circuit has emphasized that when symptoms wax and wane, it is
error to pick out a few isolated instances of improvement over a period of months
or years and treat them as a basis for concluding a claimant is capable of
working.84 The Ninth Circuit has also “repeatedly asserted that the mere fact that
a plaintiff has carried on certain daily activities ... does not in any way detract from
her credibility as to her overall disability.”85
The medical records do indicate some reported improvement, but Plaintiff
continuously reported constant severe headaches, low endurance, difficultly
preparing meals and driving due to fatigue and pain, sensitivity to light and sound,
and the need for frequent breaks and to lie down.86 Plaintiff reported the pain
medication took the “sharpness” out of the pain, allowing him to function on a day-
83 Docket 21 at 4.
84 Garrison, 759 F.3d at 1017; see also Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1201 (9th
Cir. 2008) (holding that the fact that a person makes some improvement does not mean that the
person’s impairments no longer seriously affect her ability to function in a workplace).
85 Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (“That Diedrich could participate in some daily
activities does not contradict the evidence of otherwise severe problems that she encountered
in her daily life during the relevant period.”) (quoting Vertigan v. Halter, 260 F.3d 1044, 1050 (9th
Cir. 2001)); Diedrich v. Berryhill, 874 F.3d 634, 643 (9th Cir. 2017).
86 A.R. 46-47, 51, 66, 351-357, 363, 366, 368, 405, 444, 504, 508-509, 514, 562, 563, 564, 557-
558, 567.
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to-day basis.87 His treating provider noted his condition was “essentially stable”
and “unchanged.”88
However, indications of stability or improvement do not support a conclusion
that Plaintiff can work.89 Plaintiff reported he was able to do only “a little more at
home overall,” his activity level had increased to where “he does not stay in bed
all day,” he was “better” able to maintain his house, and able to do outside work for
“very short periods.”90 At the hearing, Plaintiff testified his condition “makes it to
where I really can’t do anything… I have to go lay down and try to let this calm
down.”91 He testified he could only clean or perform other activities for about ten
to fifteen minutes, and if he tried to do too much, he would be “pretty inactive” for
the “next couple of days.”92 He also testified he had not driven for a while because
it was too difficult for him.93 When considered in context, the Commissioner’s
87 A.R. 647.
88 A.R. 647, 649.
89 Christine L. v. Saul, 450 F. Supp. 3d 1091, 1102 n.4 (D. Or. 2020) (“[A] doctor's notation that a
condition is ‘stable’ during treatment does not necessarily support the conclusion that the patient
is able to work.”) (quoting Timothy W. v. Berryhill, 2018 WL 6817030 at 10 (D. Or. 2018) (internal
citations omitted).
90 A.R. 351-376.
91 A.R. 46.
92 A.R. 47.
93 A.R. 51.
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selective references to the record are insufficient to establish a significant factual
conflict with Dr. Bursell’s and Dr. Smiley’s opinions.
The Commissioner also points to the opinion of state agency reviewing
doctor, Jeffrey Merrill, M.D., which the ALJ found persuasive and used as a basis
in her denial of disability benefits. Dr. Merrill completed a medical opinion in May
2019 and opined then that Plaintiff’s chronic headache syndrome would cause
some workplace limitations but were not overall disabling.94
At the time of Dr. Merrill’s review, Plaintiff’s file included only 26 pages of
medical records with dates of service from September 12, 2018 through April 9,
2019.95 Dr. Merrill did not have or consider either of Dr. Bursell’s opinions or the
continuing treatment records from any provider.96 Although additional medical
records were requested on April 10, 2019, the agency did not wait for those records
before issuing its nondisability determination with Dr. Merrill’s opinion on May 7,
2019.97 Further, despite Plaintiff’s insistence that his insurance was not covering
94 A.R. 67-69.
95 A.R. 351-376. While the records available to Dr. Merrill do show some instances of stability
and improvement, they overwhelmingly demonstrate ongoing headaches and limitations. A.R.
351-355.
96 A.R. 73. At the time of the hearing, the record consisted of approximately 909 pages of
medical records. Docket 14-12.
97 A.R. 63, 73, 379-405.
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certain medical testing and his willingness to submit to a Consultative Examination
(CE), the state agency opted not to order a CE.98
Dr. Merrill acknowledged Plaintiff’s “chronic headache syndrome” and listed
“migraine” as a severe impairment, but did not consider whether Plaintiff’s
headaches met or equaled Listing 11.02.99 Further, although Dr. Merrill responded,
“yes” under “[a]re the individual’s statements about the intensity, persistence, and
functionally limiting effects of the symptoms substantiated by the objective medical
evidence alone,”100 the state agency’s RFC did not consider the limiting effects of
Plaintiff’s headaches on his ability to work, such as his need for frequent breaks,
sensitivity to light and sound, and limitations in his ability to focus and
concentrate.101
The Commissioner contends that because the reviewing state agency
physician Dr. Merrill opined that Plaintiff’s headaches “caused some workplace
98 A.R. 65. A consultative examination is a physical or mental examination or test purchased at
the SSA’s request and expense from a treating source or another medical source. 20 C.F.R.
§ 404.1519.
99 A.R. 69. The only listing considered by the state agency was Listing 1.04: Spine Disorders.
A.R. 66. Primary headache disorder is not included in the Listing of Impairments (listings);
however, SSA may find that a primary headache disorder, alone or in combination with another
impairment(s), medically equals a listing. SSR 19-4p explains, “Epilepsy (listing 11.02) is the
most closely analogous listed impairment for an MDI of a primary headache disorder.” A person
with a primary headache disorder may exhibit equivalent signs and limitations to those detailed
in listing 11.02, and SSA may find that his or her MDI(s) medically equals the listing. Id.
100 A.R. 67.
101 A.R. 67-69. The RFC did include restrictions on exposure to concentrated vibrations and
hazards, such as heights and machinery. A.R. 69.
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limitations” but were not overall disabling, an unresolved factual conflict exists
which requires further administrative proceedings. The Commissioner asks the
Court to allow the ALJ an opportunity to “take steps necessary to fully develop the
record” and “[o]ffer the claimant an opportunity for a new hearing and submit
additional evidence in support of his claim.” The Commissioner also asks the Court
to order the ALJ, on remand, to obtain supplemental medical expert testimony and
obtain vocational witness testimony.102
However, “[Ninth Circuit] precedent and the objectives of the credit-as-true
rule foreclose the argument that a remand for the purpose of allowing the ALJ to
have a mulligan qualifies as a remand for a ‘useful purpose’ under [the] credit-as-
true analysis.”103 Moreover, further proceedings are only required where there are
significant factual conflicts between the rejected evidence and the record.104
Although the opinion of the state agency reviewing physician is not in full accord
with the opinions of Plaintiff’s treating physician or the testifying medical expert,
the mere existence of a conflicting opinion, especially one based on only a fraction
102 Docket 21 at 6.
103 Garrison, 759 F.3d at 1021 (“Allowing the commissioner to decide the issue again would
create an unfair ‘heads we win; tails, let’s play again’ system of disability benefits adjudication.”)
(citing Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004)).
104 Treichler, 775 F.3d at 1105.
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of the overall medical record, is not independently sufficient to create a significant
conflict in the record.105
Accordingly, the Court concludes the record is fully developed, and further
proceedings would serve no useful purpose.
D. Crediting as True Demonstrates Disability
As to the third requirement for immediate payments of benefits, for the
reasons discussed above, Plaintiff’s subjective complaints and the medical
opinions of Drs. Bursell and Smiley should be credited-as-true. Accordingly, the
ALJ’s conclusion that Plaintiff did not meet or equal Listing 11.02(D) is not
supported by substantial evidence and not free of harmful legal error. Because
Plaintiff’s impairment equaled Listing 11.02(D) during the disability period, Plaintiff
should have been presumed disabled at step three of the sequential analysis.106
105 See, e.g., Garrison, 759 F.3d at 1009 (reversing and remanding for payment of benefits
based on the treating physician’s opinion, despite the existence of both an agency reviewing
physician’s opinion and consultative examiner’s opinion that conflicted with the opinion of the
treating physician.); Fulsaas v. Berryhill, 2018 WL 2091357, at *11 (D. Or. 2018), report and
recommendation adopted, 2018 WL 2090475 (D. Or. 2018) (citing Moody v. Berryhill, 2017 WL
4740792, *9 (D. Or. 2017) (“[A]n isolated examining physician's opinion is not independently
sufficient to create a significant conflict in the record, such that an award of benefits would be
precluded.); Page v. Colvin, 2016 WL 1110263, at *12 (N.D. Cal. 2016) (finding further
proceedings “would serve no useful purpose” and remanding for payment of benefits when a
treating physician endorsed disability despite a conflicting consultative examiner opinion).
106 Sullivan v. Zebley, 493 U.S. 521, 532 (1990) (When a claimant’s medical condition meets or
equals a listing and he is not working, he “is presumed unable to work and is awarded benefits
without a determination whether he actually can perform his own prior work or other work”).
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A claimant who meets a listing at step three in the sequential disability
evaluation is disabled. A court need not go further.107 However, assuming
arguendo, Plaintiff was not found disabled at step three, Plaintiff still should have
been found disabled at step five. If Dr. Smiley’s opinion is credited-as-true, Plaintiff
is likely to miss at least three days of work each month; and the VE testified that a
person with Plaintiff’s impairments who would regularly miss that much work each
month was not employable.108 Therefore, if the improperly discredited evidence
were credited as true, Plaintiff would be awarded disability benefits.
E. Record as a Whole Does Not Create a Serious Doubt of Disability
Even when all three credit-as-true criteria are met, a court may still remand
for further proceedings “when the record as a whole creates serious doubt as to
whether the claimant is, in fact, disabled[.]”109 Based on a comprehensive review
of the record as a whole, the Court does not have serious doubt that the Plaintiff is
disabled, and therefore, exercises its discretion to remand this case for the
immediate award of benefits.
107 Id. (“[T]he listings were designed to operate as a presumption of disability that makes further
inquiry unnecessary.”).
108 See Smith v. Saul, 820 F. App'x 582, 586 (9th Cir. 2020) (remanding for calculation and
award of benefits when VE finds no jobs for individual with limitations opined by treating
physician).
109 Garrison, 759 F.3d at 1021.
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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 and are not supported by
substantial evidence in the record. Accordingly, IT IS ORDERED that Plaintiff’s
request for relief at Docket 15 is GRANTED, the Commissioner’s motion at Docket
21 is DENIED; and this this matter is REVERSED and REMANDED to the
Commissioner for the immediate calculation and award of benefits.
The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 22nd day of June, 2022, at Anchorage, Alaska.
/s/ Sharon L. Gleason___________
UNITED STATES DISTRICT JUDGE
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