Lodhi v. Kijakazi

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
MOHAMMED L.,1
Plaintiff,
vs.
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,2
Defendant.
Case No. 1:20-cv-00007-RRB
ORDER REMANDING FOR
PAYMENT OF BENEFITS
(Docket 22)
I. 	INTRODUCTION
Claimant, Mohammed L., filed an application for Social Security Disability
Insurance benefits (“SSDI”) and Supplemental Security Income benefits (“SSI”) on
March 21, 2018, alleging disability beginning April 5, 2016.3 Claimant has exhausted his
administrative remedies and seeks relief from this Court.4 He argues that the determination
by the Social Security Administration (“SSA”) that he is not disabled, within the meaning
1 Plaintiff’s name is partially redacted pursuant to 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), 	available 	at
https://www.uscourts.gov/sites/default/files/18-cv-l-suggestion_cacm_0.pdf.
2 Kilolo Kijakazi, Acting Commissioner of the Social Security Administration, was substituted
for Andrew M. Saul (Commissioner, Soc. Sec. Admin., in official capacity) pursuant to Fed. R. Civ.
P. 25(d). 3 Tr. 15.
4 Dockets 1, 15.
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of the Social Security Act (“the Act”),5 is not supported by substantial evidence, and that
the Administrative Law Judge (“ALJ”) committed legal errors. Claimant seeks a reversal
of the decision by the SSA and a remand for payment of benefits, or, in the alternative,
remand 	for 	a 	new 	hearing.6 	The 	Acting 	Commissioner 	of 	Social 	Security
(“Commissioner”) filed an answering brief in opposition, and Claimant has replied.7
For the reasons set forth below, Claimant’s Motion for Remand at Docket 22
is GRANTED, the Commissioner’s final decision is VACATED, and the case is
REMANDED to the SSA for payment of benefits.
II. 	BACKGROUND
Claimant alleges that he is disabled following a workplace injury on April 5,
2016.8 Claimant had performed the same job as a fish processor since July 2001,9 and was
57 years old on the date of his injury. 	His date last insured for purposes of Title II was
December 31, 2021.
A. 	Medical Records
Claimant saw three separate emergency room doctors in the days following
his April 2016 injury.10 	His initial physical therapy examination took place two weeks
after his injury.11 	He attended the four sessions prescribed and was discharged in June,
5 The Act provides for the payment of disability benefits to individuals who suffer from a physical
or mental disability. 42 U.S.C. § 423; 42 U.S.C. § 1381.
6 Docket 22 at 24–25.
7 Docket Nos. 24, 29.
8 See Emergency Room report at Tr. 449.
9 Tr. 630.
10 Dr. Roger Golub, Dr. Kimberly Bakkes, and Dr. Charles Roesel were the emergency room
physicians who saw Claimant in the first month after his injury. Tr. 450–52.
11 Tr. 502.
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having improved.12 He returned in December 2016 for fitting of an abdominal brace due
to chronic low back pain.13
A 	February 	9, 	2017, 	workers’ 	compensation 	Independent 	Medical
Examination (“IME”), performed by Dr. Mitchell Weinstein, found that Claimant’s
debilitating condition was related to his work injury.14 	Claimant underwent surgery on
April 13, 2017, but felt the surgery did not help his symptoms.15 However, a second IME
performed by Dr. Weinstein on January 16, 2018, opined that although the need for surgery
was the result of a work-related accident, “the substantial cause of his disability is his pre-
existing moderately severe lumbar spondylosis.”16 	Accordingly, workers’ compensation
benefits were terminated.17 Nevertheless, Dr. Weinstein did not believe that Claimant’s
condition would be resolved.18 	He recommended referral to a pain management
specialist, and noted that it was “unlikely” that Claimant would return to any kind of
physical labor due to chronic pain.19
Having lost his workers’ compensation benefits, Claimant next filed for
SSDI and SSI. Upon filing for Social Security benefits, Claimant’s medical records were
reviewed by Dr. Jeffrey Merrill on June 27, 2018.20 Dr. Merrill concluded that claimant
could lift and/or carry 50 pounds occasionally, 25 pounds frequently, and could stand and
12 Tr. 497.
13 Tr. 493–96.
14 Tr. 622.
15 Id.
16 Tr. 627.
17 Tr. 223.
18 Tr. 627.
19 Tr. 628–29.
20 Tr. 74–99.
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walk for 6 hours per day, and sit 6 hours per day, and therefore was capable of medium,
unskilled work.21
However, ongoing records from treating physicians, including Dr. Robert
Hunter and Dr. Justin Stahl, reflect continuing pain, weakness, and numbness, in addition
to episodes of incontinence.22 Claimant was referred for electrodiagnostic evaluation due
to “numbness in the bilateral lower extremities and left upper extremity.”23 Although there
was “no electrodiagnostic evidence of peripheral neuropathy,”24 the assessment reflected
an “abnormal study,” noting “electrodiagnostic evidence of a moderately severe bilateral
carpal tunnel syndrome,” as well as evidence of probable “chronic left ulnar neuropathy
without evidence of current compression.”25 	Treating physician Dr. Hunter predicted
that Claimant would have a permanent impairment.26
In September 2018, he again was referred to physical therapy due to
“decrease in function,” including neck and low back pain, weakness, radiculopathy,
dizziness, imbalance. 	However, he did not return after the first visit. 	He returned in
December 2018, and attended four additional visits before the record ends. 	Decreased
motivation for participation was noted. 	It is unclear if Claimant returned after January
2019.27
21 Tr. 84.
22 As summarized by Dr. Weinstein. Tr. 623–24.
23 Tr. 313.
24 Tr. 624.
25 Tr. 313.
26 Tr. 630.
27 Tr. 469–89.
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Meanwhile, his treating physicians, primarily Dr. Hunter, continued to note
bilateral knee, neck, and back pain, and numbness in his left arm, leg, and foot, as recently
as one month prior to the ALJ hearing.28 	At that time, he was using a cane in his right
hand, and Dr. Hunter noted “the right leg is larger than the left leg from a standpoint of
muscular bulk with the greatest discrepancy being in the calves,” and Claimant was unable
to perform squat, stand on his toes, or stand and lift his toes due to pain in his right knee,
left hip, and back.29 He was referred for neurosurgical follow-up reports, which are not in
the record.30
With respect to memory loss, entries by treating physician, Dr. Hunter
hypothesized a relationship between Vitamin B12 deficiency and memory loss.31 Claimant
commenced regular vitamin B12 injections on January 8, 2018,32 but there is no record of
if or when those shots were discontinued, or whether they were helpful with Claimant’s
memory loss. Dr. Hunter frequently noted Claimant’s concerns about memory loss,33 and
he also noted a language barrier between himself and his patient.34 His records otherwise
focus almost exclusively on various pain complaints, and he did not order any additional
testing with respect to Claimant’s memory.
28 Tr. 525.
29 Tr. 525–26.
30 Tr. 526.
31 Tr. 605.
32 Tr. 599.
33 Tr. 368, 525, 571–72, 585, 591, 604.
34 Tr. 563.
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All of the foregoing records were reviewed by impartial non-examining
medical expert Dr. Steven Andersen. Dr. Andersen opined that Claimant was capable of
no more than light work.35
B. 	ALJ Decision
The ALJ hearing was held on August 12, 2019,36 where the ALJ took brief
testimony from Claimant, as well as non-examining medical expert Dr. Andersen, non-
examining psychologist Collette Valette, PhD, and vocational expert Daniel Labrosse. An
Urdu interpreter was present telephonically. However, the transcript reflects the inherent
shortcomings associated with a telephonic interpreter interpreting telephonic witnesses,
including difficulty hearing and understanding those witnesses.
The Commissioner has established a five-step process for determining
disability.37 	A claimant bears the burden of proof at steps one through four in order to
make a prima facie showing of disability.38 	Applying the 5-step process, the ALJ’s
decision concluded that: Step 1, Claimant had not engaged in substantial gainful activity
since his alleged onset date; Step 2, Claimant suffered from severe impairments, including
disorders of the cervical and lumbar spine, mild obesity, carpal tunnel syndrome, and mild
degenerative changes of the bilateral hands; and Step 3, Claimant’s severe impairments
did not meet any medical listings.39
35 Tr. 49.
36 Tr. 32.
37 20 C.F.R. § 404.1520(a)(4).
38 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).
39 Tr. 17–18.
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Before proceeding to Step 4, a claimant’s residual functional capacity
(“RFC”) is assessed. 	RFC is the most someone can do despite their mental and physical
limitations.40 This RFC assessment is used at Steps Four and Five.41 Residual functional
capacity is described in terms of “heavy,” “medium,” “light,” or “sedentary” work. 	In
evaluating his RFC, the ALJ concluded that Claimant had the capacity to perform medium
work, with some additional limitations related to climbing and exposure to unprotected
heights and machinery.42
At Step 4, the ALJ found that Claimant could not perform his past relevant
work as a Fish Cleaner/Processor and Fish House Worker.43 	Claimant having made a
prima facie case, the burden of proof shifted to the Commissioner at Step 5.44 	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,” commonly referred to as “the Grids.”45 	With the assistance of a
vocational expert (“VE”), the ALJ concluded that Claimant was able to perform
medium work in the national economy, such as Industrial Cleaner, Laundry Worker, and
Laborer, Stores.46 Accordingly, the ALJ concluded that Claimant was not disabled.
40 Berry v. Astrue, 622 F.3d 1228, 1233 (9th Cir. 2010); 20 C.F.R. §§ 404.1545(a)(1),
416.945(a)(1).
41 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
42 Tr. 19. As discussed below, the ALJ did not take any testimony from Claimant regarding his
limitations, despite attempts by his attorney to enter such testimony into the record.
43 Tr. 25.
44 Treichler, 775 F.3d at 1096 n.1.
45 Tackett, 180 F.3d. at 1099.
46 Tr. 26.
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III. 	DISCUSSION
A decision of the Commissioner to deny benefits will not be overturned
unless it either is not supported by substantial evidence or is based upon legal error. 	In
making its determination, the Court considers the evidence in its entirety, weighing both
the evidence that supports and that which detracts from the ALJ’s conclusion.47 Claimant
argues that the ALJ’s decision is not supported by substantial evidence and that the ALJ
committed legal errors. 	Specifically, he contends that the ALJ erred at Step 2 when she
failed to find Claimant’s memory impairment to be medically determinable, which then
impacted the ultimate determination by failing to include his memory issues into the RFC.48
Additionally, Claimant complains that the RFC failed to take his peripheral neuropathy
into consideration.49 	Finally, Claimant alleges that because he is incapable of medium
work, he qualifies for disability under the Medical-Vocational Guidelines.50
A. 	Medically Determinable Impairments
If an ALJ commits legal error, courts will uphold the decision if it is
harmless.51 	An error is harmless if it is “inconsequential to the ultimate nondisability
determination.”52 Failure to deem an impairment “severe” at Step 2, if error, is a harmless
error when a claimant otherwise prevails at Step 2 and the case proceeds through the
remaining steps. “Step two is merely a threshold determination meant to screen out weak
47 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
48 Docket 22 at 13.
49 Id. at 19.
50 Id. at 20.
51 Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012).
52 Id. (citation omitted).
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claims. It is not meant to identify the impairments that should be taken into account when
determining the RFC.”53 	However, when assessing the RFC, “the adjudicator must
consider limitations and restrictions imposed by all of an individual’s impairments, even
those that are not ‘severe.’”54 “[I]f an ALJ does not consider all medically determinable
impairments when assessing a claimant’s RFC, then an error at step two is not harmless.”55
The 	ALJ’s 	failure 	to 	find 	Claimant’s 	mental 	and 	neurological 	health
condition(s) severe at Step 2 was not error standing alone, but failure to include any
medically determinable health issues in the RFC was error. “Medically determinable” is
defined as an impairment that results from “anatomical, physiological, or psychological
abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic
techniques.”56 	Symptoms 	or 	a 	medical 	opinion 	are 	not 	adequate 	to 	establish 	an
impairment; rather, the regulation requires “objective medical evidence from an acceptable
medical source.”57 	“Objective medical evidence” means “signs, laboratory findings, or
both.”58
1. 	Memory issues
Claimant argues the ALJ failed to find his memory impairment was severe
or even medically determinable.59 	But Claimant alleges that medical evidence amply
53 Buck v. Berryhill, 869 F.3d 1040, 1048–49 (9th Cir. 2017) (citing Bowen v. Yuckert, 482 U.S.
137, 146–47, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987)).
54 Id. (citations omitted) (emphasis added).
55 Young v. Saul, No. 19-CV-01965-PJH, 2020 WL 3506805, at *14 (N.D. Cal. June 29,
2020)(internal citations and quotations omitted)(emphasis added).
56 20 CFR § 416.921
57 Id.
58 20 CFR § 416.902.
59 Docket 22 at 13.
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documents that he was diagnosed “as early as his alleged onset date with mental
impairments manifesting as impaired memory.”60 	Specifically, Claimant points to the
medical records of his treating physician, Dr. Hunter, to whom he reported forgetfulness,
and problems with writing, spelling, and remembering names, in addition to losing items
and his train of thought more often.61 In concluding that Claimant’s memory impairment
was not medically determinable, the ALJ found that the medical record contained no
workup with regards to memory loss.62
The Court concludes that Claimant’s memory issues were not “medically
determinable,” under the above definition, as Dr. Hunter never diagnosed memory issues,
nor was any testing performed to confirm such issues. 	Repeated self-reporting of
subjective 	memory 	problems, without 	more, is not enough to 	deem it “medically
determinable.”
2. 	Peripheral neuropathy
Claimant next argues that the ALJ improperly failed to find his peripheral
neuropathy to be medically determinable.63 Unlike Claimant’s subjective memory issues,
Dr. Hunter included numbness in his assessment at almost every visit as: 	“Peripheral
neuropathy with upper and lower ext[tremity] paresthesias.”64 	But the ALJ found
60 Docket 22 at 15–17.
61 Tr. 604.
62 Tr. 55.
63 Docket 22 at 19-20.
64 See Tr. 378, 388, 389, 394, 395, 397, 398, 399, 400, 604, 605.
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Dr. Hunter’s opinion “not persuasive,” and did not acknowledge the physician’s multiple
references to peripheral neuropathy.65
“The ALJ always has a ‘special duty to fully and fairly develop the record
and to assure that the claimant’s interests are considered . . . even when the claimant is
represented by counsel.’”66 Specifically, the ALJ has a duty to develop the record “when
there is ambiguous evidence or when the record is inadequate to allow for proper evaluation
of the evidence.”67 Dr. Hunter’s repeated assessments over several years suggest that he
verified the numbness during examination, and the nature of Claimant’s work injury
supports the veracity of such symptoms. 	Any doubts the ALJ may have had about
Dr. Hunter’s repeated diagnoses of peripheral neuropathy could have been resolved by the
ALJ through interrogatories to Dr. Hunter. 	Instead, the ALJ found Dr. Hunter’s entire
opinion “not persuasive.” Failure to include numbness in Claimant’s RFC was error.
B. 	Testimony and Opinions Regarding Residual Functional Capacity
1. 	Treating physicians
Claimant’s treating physicians wrote more than 30 separate notes excusing
Claimant from work for more than two and a half years after his injury,68 and no treating
physician ever released Claimant to work. 	Claimant’s primary treating physician,
Dr. Hunter, continued to treat Claimant for chronic pain as recently as one month prior to
65 Docket 22 at 19 (citing Tr. 24).
66 Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003) (citing Brown v. Heckler, 713 F.2d 441,
443 (9th Cir. 1983)).
67 Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001).
68 Tr. 423–47. In addition to Dr. Hunter, the record contains temporary work restrictions from
other providers, including the emergency room physicians Dr. Roger Golub, Dr. Kimberly Bakkes, and
Dr. Charles Roesel. Tr. 450–52.
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the 	ALJ 	hearing,69 	and 	predicted 	that 	Claimant 	would 	have 	a 	permanent 	partial
impairment.70 A month before the hearing, Dr. Hunter noted a discrepancy in the muscle
mass of Claimant’s legs, and that Claimant was now using a cane.71 He was referred for
neurosurgical follow-up reports, and again issued a work excuse for four months.72
Notably, Dr. Hunter makes no reference to malingering.
But the ALJ dismissed Claimant’s treating physicians’ opinions wholesale.
She dismissed the opinions of three emergency room doctors who excused Claimant from
work, because “they indicated brief, limited periods of limitation and did not provide
functional limitations for a continuous 12-month period. 	These providers also did not
support 	their 	work 	restrictions 	with 	explanation 	or 	reference 	to 	objective 	medical
findings.”73 But no emergency room doctor could have provided functional limitations for
a 12-month period, as they all saw Claimant within days of his work accident.
The ALJ deemed Dr. Hunter’s opinions unpersuasive as “not consistent with
the overall medical record.”74 She suggests that Dr. Hunter’s notes “provided little support
for his opinions, particularly objective medical evidence,” and that his opinion regarding
disability amounted to an opinion on the ultimate issue of disability, which is reserved for
the Commissioner. She deemed his opinion that Claimant is unable to perform any work
on a sustained basis as “non-specific (as he did not provide an opinion about the claimant’s
69 Tr. 525.
70 Tr. 630.
71 Tr. 525–26.
72 Tr. 526.
73 Tr. 25.
74 Tr. 24.
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function-by-function abilities) and not persuasive.”75 	But it was the ALJ’s duty to fully
and fairly develop the record, especially “when there is ambiguous evidence or when the
record is inadequate to allow for proper evaluation of the evidence.”76 	The ALJ had a
responsibility to request a function-by-function report from Claimant’s primary treating
physician, if she felt one was critical to understanding the doctor’s opinion.
2. 	Independent medical exams
The ALJ then gave only cursory acknowledgment to Dr. Weinstein, who
examined Claimant on two occasions. 	The ALJ found Dr. Weinstein’s second workers’
compensation 	IME 	opinion 	“not 	persuasive” 	and 	“internally 	inconsistent,” 	because
Dr. Weinstein indicated that although no physical restrictions were identified relevant to
the date of his work injury, it was unlikely Claimant would return to any kind of physical
labor because of his chronic pain.77
The Court finds that 	these two statements by Dr. Weinstein 	are not
inconsistent in the context of workers’ compensation, where an independent medical
examiner must discern between work injuries and unrelated debilitating conditions. After
determining 	that 	Claimant’s 	condition 	no 	longer 	was 	work 	related, 	Dr. 	Weinstein
volunteered his opinion that he nevertheless did not believe that Claimant’s condition
would be resolved, recommended referral to a pain management specialist, and noted that
it was “unlikely” that Claimant would return to any kind of physical labor due to chronic
75 Id.
76 Mayes, 276 F.3d at 459–60.
77 Tr. 24.
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pain.78 	There is no inconsistency in Dr. Weinstein’s opinion, given that it was issued in
the workers’ compensation context.
3. 	Non-examining medical experts
Two non-examining medical experts, both retained by the Agency to give
impartial opinions, reviewed Claimant’s file. 	In June 2018, State agency medical
consultant Dr. Merrill reviewed the medical records through May 2018, and opined that
Claimant could occasionally lift 50 pounds, and therefore could perform medium work.79
But Dr. Andersen later testified at the August 2019 ALJ hearing, having reviewed
additional medical records available up to that date.80 	He opined that Claimant did not
meet a listed impairment (Step 3), but that his physical limitations included occasional
lift/carry of 25 pounds, and 10 pounds frequently,81 which is the equivalent of light work,
rather than medium. 	Dr. Andersen’s opinion was based on the nerve damage and carpal
tunnel, with “no weakness or neuropathy in his lower extremities.”82 	In other words,
Dr. Andersen did not take any numbness in Claimant’s legs into consideration when
rendering his opinion.
In reaching her conclusions, the ALJ relied significantly on the written
opinion of Dr. Merrill, who opined in June 2018 that Claimant could perform medium
work.83 	Dr. Andersen’ 2019 testimony took the most recent medical evidence into
78 Tr. 627–29.
79 Tr. 74–83.
80 Tr. 32, 46–48.
81 Tr. 49.
82 Tr. 52.
83 Tr. 22–25.
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consideration,84 but the ALJ found Dr. Andersen’s 2019 testimony that Claimant was
capable of no more than light work was only “somewhat persuasive.”85 Instead, the ALJ
found 	Dr. 	Merrill’s 	2018 	opinion 	more 	consistent 	with 	“the 	record 	as 	a 	whole,”
rationalizing that Dr. Merrill took into consideration the skepticism of some of Claimant’s
treating physicians regarding his reported symptoms.86 	But the Court notes that the
skepticism Dr. Merrill noted in the earlier medical records is not found in the later records.
And it flies in the face of reason that the physician who did not review the most recent
medical records could render a decision more consistent with the record as a whole.
4. 	Claimant’s testimony
Finally, the transcript of the ALJ hearing reflects that the only testimony
Claimant offered, via interpreter, was a very brief description of his past relevant work.87
In determining a claimant’s RFC, the ALJ must base findings on “all of the relevant
medical 	and 	other 	evidence,” 	including 	a 	claimant’s 	testimony 	regarding 	the
limitations imposed by his impairments.88 But Claimant was not asked about his ability
to lift or carry, or any other limitations or symptoms, such that the ALJ could evaluate his
credibility herself. Rather, the ALJ affirmatively denied Claimant the opportunity to testify
as to whether he could perform certain activities, and declined to allow the Urdu interpreter
to interpret the VE testimony for Claimant.89
84 Tr. 23.
85 Id.
86 Id.
87 Tr. 56–60.
88 20 C.F.R. §§ 404.1545(a)(3), 404.1529(c)(3) & (4).
89 Tr. 65.
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C. 	Reconciling Physician Opinions
An 	ALJ 	is 	no 	longer 	required 	to 	“weigh” 	medical 	opinions. 	The
Commissioner correctly notes that the most important factors to consider under the current
guidelines when evaluating medical opinions are “supportability and consistency.”90 But
the Commissioner fails to acknowledge the other factors listed in the regulations, including
“relationship with the claimant,” which considers the length, purpose, and extent of that
treatment relationship, as well as the frequency of examinations, noting that “a medical
source may have a better understanding of your impairment(s) if he or she examines you
than if the medical source only reviews evidence in your folder.”91
In this case, every examining physician—both treating and independent—
deemed Claimant significantly debilitated and unable to perform any physical labor. The
only physicians who thought Claimant could perform any work at all were the two
physicians who never examined him. 	Both Dr. Merrill and Dr. Andersen concluded, on
the basis of written records alone, that Claimant could perform work somewhere from light
to medium exertion. The ALJ found Dr. Merrill’s opinion more persuasive.
The Commissioner argues that this Court should not second-guess the ALJ’s
decision to rely on Dr. Merrill, suggesting that Claimant is asking for “an alternative
interpretation of the opinion evidence.”92 But the standard is whether the ALJ’s decision
is “supported by substantial evidence and free of legal error.”93 	To that end, the Court
90 Docket 24 at 9 (citing 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2)).
91 20 C.F.R. §§ 404.1520c(c)(1)-(4). Additionally, a specialist’s opinion may be more persuasive
about medical issues related to his or her specialty.
92 Docket 24 at 9.
93 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
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considers the evidence in its entirety, weighing both the evidence that supports and that
which detracts from the ALJ’s conclusion.94 	“Substantial evidence” is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion. 	Such
evidence must be “more than a mere scintilla,” but also “less than a preponderance.”95
When the ALJ dismissed the opinions of every examining physician, as well
as the more restrictive opinion of Dr. Andersen, she eliminated every opinion that could
lead to a finding of disability. Dr. Merrill, who neither examined Claimant nor reviewed
the most recent medical records, offered the only medical opinion that would yield a “not
disabled” conclusion according to the Grids. This fact, considered in conjunction with the
ALJ’s generally unsupported rejection of other physician opinions, failure to develop the
record, refusal to allow the interpreter to translate the VE testimony, and failure to accept
proffered testimony from Claimant himself, invites 	some skepticism of the ALJ’s
analysis.96
If the evidence is susceptible to more than one rational interpretation, the
ALJ’s conclusion must be upheld.97 This rule assumes, however, that the ALJ’s conclusion
is one of those possible rational interpretations. 	The Court finds that Dr. Merrill’s lone
opinion that Claimant could perform medium work is the clear outlier among all the
physicians’ opinions, and the fact that this opinion is based upon incomplete medical
94 Id.
95 Perales, 402 U.S. at 401; Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975).
96 Counsel attempted to question Claimant regarding his abilities, so that the VE could testify as
to light duty jobs that fit that description, but the ALJ indicated “at this point the GRID rules would apply,”
and suggested that it was “a very strong possibility” that Claimant would be “gridded out.” Tr. 71. No
testimony regarding his symptoms or abilities was ever taken from Claimant.
97 Gallant v. Heckler, 753 F.2d 1450, 1452–53 (9th Cir. 1984).
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records renders reliance on the opinion flawed. 	Therefore, the Court concludes that the
ALJ’s reliance on Dr. Merrill’s opinion is not “substantial evidence,” when the record
contains 	the 	opinions 	of 	numerous 	other 	physicians, 	most 	of 	whom 	performed
examinations, and many of those with long-term treating relationships with Claimant, who
consistently concluded that Claimant was impaired to a more significant degree. 	Here,
once the ALJ’s errors are accounted for, the record supports a finding that Claimant is
capable of, at most, light work.
D. 	Medical-Vocational Guidelines (“The Grids”)
Disability is defined in the Act as:
[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.98
Moreover, an individual shall be determined to be under a disability only if his or her
impairments are of such severity that they not only are unable to do their previous work,
but cannot, considering age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.99
The Grids present—in table form—a shorthand method for determining the
availability 	and 	number 	of 	suitable 	jobs 	for 	a 	claimant, 	by 	categorizing 	jobs 	by
physical-exertional levels, and a claimant’s placement in the appropriate table depends
98 42 U.S.C. § 423(d)(1)(A). Claimant already had satisfied the 12-month requirement by the time
he underwent surgery on April 13, 2017. Tr. 622. Even the workers’ compensation medical examiner,
Dr. Weinstein, did not believe that Claimant’s condition was resolved as of January 16, 2018, well past the
12-month requirement. Tr. 627.
99 42 U.S.C. § 423(d)(2)(A).
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upon four factors—age, education, previous work experience, and physical ability. 100 For
each combination of these factors, the Grids direct a finding of disabled or not disabled
based on the number of jobs in the national economy in the appropriate exertional category.
The distinction between light and medium work is critical in this case, as
Claimant’s age triggers a different result under each category.101 Claimant, age 57 on the
date of his injury, was an individual of “advanced age” under the Regulations. 	Under
§ 202, an individual of advanced age with Claimant’s limited education and lack of
transferable skills, who is capable of no more than “light work,” is deemed “Disabled,”
whereas under § 203, the same individual, capable of “medium work,” is deemed “Not
Disabled.” There is no category between “light” and “medium.”
E. 	Remedy
With respect to whether this Court should remand for further administrative
proceedings or remand for benefits, the Court notes that remand typically is required with
instructions to the ALJ to reevaluate Claimant’s RFC, and to obtain additional VE
testimony regarding work available under that revision. But the Court has concluded that
the ALJ’s finding that Claimant is capable of medium work is unsupported by substantial
evidence, for the reasons explained above. 	Under 20 C.F.R. Pt. 404, Subpt. P, App. 2,
§ 202, an individual of advanced age with Claimant’s limited education and lack of
transferable skills, who is capable of “light work” or less, is deemed “Disabled.” 	If the
Grids direct a finding of disabled, other evidence, including testimony from a VE, cannot
100 See Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir.2006); Tackett, 180 F.3d at 1101.
101 20 C.F.R. Pt. 404, Subpt. P, App. 2.
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be used to change that outcome.102 	The Grids provide bright-line rules intended to
streamline decisions such as these. Accordingly, further proceedings are not required.
IV. 	CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Claimant’s
motion at Docket 22 is GRANTED and this matter is REMANDED for payment of
benefits.
IT IS SO ORDERED this 1st day of March, 2022, at Anchorage, Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
102 Cooper v. Sullivan, 880 F.2d 1152, 1156B57 (9th Cir. 1989); Lounsburry, 468 F.3d at 1115B16.
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