Moten v. Commissioner of Soc. Sec. Admin.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
SHEWANDA L. JACKSON-MOTEN,
Plaintiff,
vs.
NANCY A. BERRYHILL, Deputy
Commissioner of Social Security for Operations,
Defendant. Case No. 3:18-cv-00135-SLG
DECISION AND ORDER
On or about July 20, 2015, Shewanda L. Jackson-Moten filed an application for
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“the Act”),1
alleging disability beginning June 6, 2009.2 Ms. Jackson-Moten has exhausted her
administrative remedies and filed a Complaint seeking relief from this Court.3
Ms. Jackson-Moten filed an opening brief seeking reversal of the agency decision
and remand for a de novo hearing and new decision.4 The Commissioner filed an Answer
and a brief in opposition to Ms. Jackson-Moten’s opening brief.5 Ms. Jackson-Moten did
not file a reply brief. 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
1 The Court uses the term “disability benefits.”
2 Administrative Record (“A.R.”) 15, 257–58. The application is dated July 21, 2015. A.R. 257–
58.
3 Docket 1 (Jackson-Moten’s Compl.).
4 Docket 13 (Jackson-Moten’s Br.).
5 Docket 11 (Answer); Docket 14 (Defendant’s Br.).
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 1 of 29

Case No. 3:18-cv-00135-SLG, Jackson-Moten v. Berryhill
Decision and Order
Page 2 of 29
Commissioner of Social Security.6 For the reasons set forth below, Ms. Jackson-Moten’s
request for relief will be granted.
I. STANDARD OF REVIEW
A decision by the Commissioner to deny disability benefits will not be overturned
unless it is either not supported by substantial evidence or is based upon legal error.7
“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.”8 Such evidence must be “more than a mere scintilla,” but may be “less than
a preponderance.”9 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.10 If the evidence is susceptible to
more than one rational interpretation, the ALJ’s conclusion must be upheld.11 A reviewing
court may only consider the reasons provided by the ALJ in the disability determination
6 42 U.S.C. § 405(g).
7 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)).
8 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)).
9 Perales, 402 U.S. at 401; Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975) (per
curiam).
10 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
11 Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citing Rhinehart v. Finch, 438 F.2d 920,
921 (9th Cir. 1971)).
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 2 of 29

Case No. 3:18-cv-00135-SLG, Jackson-Moten v. Berryhill
Decision and Order
Page 3 of 29
and “may not affirm the ALJ on a ground upon which [he] did not rely.”12 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.”13 Finally, the ALJ has a “special duty to fully and
fairly develop the record and to assure that the claimant’s interests are considered.”14 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 her own
interests.15
II. DETERMINING DISABILITY
The Act provides for the payment of disability insurance to individuals who have
contributed to the Social Security program and who suffer from a physical or mental
disability.16 In addition, SSI may be available to individuals who are age 65 or older, blind,
or disabled, but who do not have insured status under the Act.17 Disability is defined in
the Act as follows:
12 Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).
13 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations
omitted).
14 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).
15 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001).
16 42 U.S.C. § 423(a).
17 42 U.S.C. § 1381a.
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 3 of 29

Case No. 3:18-cv-00135-SLG, Jackson-Moten v. Berryhill
Decision and Order
Page 4 of 29
[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.18
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.19
The Commissioner has established a five-step process for determining disability
within the meaning of the Act.20 A claimant bears the burden of proof at steps one through
four in order to make a prima facie showing of disability.21 If a claimant establishes a
prima facie case, the burden of proof then shifts to the agency at step five.22 The
Commissioner can meet this burden in two ways: “(a) by the testimony of a vocational
18 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
19 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
20 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
21 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).
22 Treichler, 775 F.3d at 1096 n.1; Tackett, 180 F.3d at 1098 (emphasis in original).
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 4 of 29

Case No. 3:18-cv-00135-SLG, Jackson-Moten v. Berryhill
Decision and Order
Page 5 of 29
expert, or (b) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404,
subpt. P, app. 2.”23 The steps, and the ALJ’s findings in this case, are as follows:
Step 1. Determine whether the claimant is involved in “substantial gainful activity.”
The ALJ concluded that Ms. Jackson-Moten had not engaged in substantial gainful
activity during the period from the alleged onset date of June 6, 2009 through her date
last insured of March 31, 2014.24
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. The ALJ determined that Ms. Jackson-Moten had
the following severe impairments through the date last insured: right shoulder
osteoarthritis and sarcoidosis. The ALJ found that Ms. Jackson-Moten’s right lower
extremity impairment; cervical, thoracic, and lumbar degenerative disc disease;
hypothyroid; anemia; reflux esophagitis; major depressive disorder; generalized anxiety
disorder; and post-traumatic stress disorder were non-severe. He also found that Ms.
Jackson-Moten’s hand impairment, irritable bowel syndrome, fibromyalgia, and other
23 Tackett, 180 F.3d at 1101.
24 A.R. 17.
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 5 of 29

Case No. 3:18-cv-00135-SLG, Jackson-Moten v. Berryhill
Decision and Order
Page 6 of 29
physical complaints were not medically determinable impairments with any resultant
significant vocational limitations.25
Step 3. Determine whether the impairment is the equivalent of any of the listed
impairments found in 20 C.F.R. pt. 404, subpt. P, app.1 that are so severe as to preclude
substantial gainful activity. If the impairment is the equivalent of any of the listed
impairments, and meets the duration requirement, the claimant is conclusively presumed
to be disabled. If not, the evaluation goes on to the fourth step. The ALJ determined that
through the date last insured, Ms. Jackson-Moten did not have an impairment or
combination of impairments that met or medically equaled the severity of a listed
impairment.26
Before proceeding to step four, a claimant’s residual functional capacity (“RFC”) is
assessed. Once determined, the RFC is used at both step four and step five. An RFC
assessment is a determination of what a claimant is able to do on a sustained basis
despite the limitations from her impairments, including impairments that are not severe.27
The ALJ concluded that through the date last insured, Ms. Jackson-Moten had the RFC
to perform light work except she was limited to occasionally climbing ramps or stairs;
occasionally balancing, stooping, kneeling, crouching, and crawling; occasionally
reaching overhead with the right upper extremity (above shoulder reaching) and pushing
25 A.R. 18–20.
26 A.R. 21.
27 20 C.F.R. § 404.1520(a)(4).
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 6 of 29

Case No. 3:18-cv-00135-SLG, Jackson-Moten v. Berryhill
Decision and Order
Page 7 of 29
and pulling with right upper extremity; never climbing ladders, ropes, or scaffolds; and
avoiding all exposure to irritants, such as fumes, odors, dust, and gases.28
Step 4. Determine whether the claimant is capable of performing past relevant
work. At this point, the analysis considers whether past relevant work requires the
performance of work-related activities that are precluded by the claimant’s RFC. If the
claimant can still do her past relevant work, the claimant is deemed not to be disabled.
Otherwise, the evaluation process moves to the fifth and final step. The ALJ found that
through the date last insured, Ms. Jackson-Moten “was capable of performing past
relevant work as a loan manager, tech support, and Subway manager.” The ALJ added
that “[t]his work did not require the performance of work-related activities precluded by
the claimant’s residual functional capacity.”29
Step 5. Determine whether the claimant is able to perform other work in the
national economy in view of her age, education, and work experience, and in light of the
RFC. If so, the claimant is not disabled. If not, the claimant is considered disabled. The
ALJ determined that Ms. Jackson-Moten was capable of past relevant work and did not
proceed to Step 5.30
The ALJ concluded that Ms. Jackson-Moten was not disabled at any time from
June 6, 2009, the alleged onset date, through March 31, 2014, the date last insured.31
28 A.R. 21–22.
29 A.R. 26.
30 Id.
31 Id.
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 7 of 29

Case No. 3:18-cv-00135-SLG, Jackson-Moten v. Berryhill
Decision and Order
Page 8 of 29
III. PROCEDURAL AND FACTUAL BACKGROUND
Ms. Jackson-Moten was born in 1977; she is 41 years old.32 She reported working
as a merchandiser for Market Connect Group from April 2011 through December 2014,
but her average monthly earnings were below the threshold for presuming substantial
gainful activity from June 6, 2009 through March 31, 2014.33 In the past she also worked
as a cashier clerk at Tesoro, a payday loan manager, tech support for Direct TV, and as
a manager at Subway.34 On December 2, 2015, the Social Security Administration
(“SSA”) determined that Ms. Jackson-Moten was not disabled under the applicable
rules.35 On January 19, 2016, Ms. Jackson-Moten timely requested a hearing before an
ALJ.36 She appeared and testified without a representative at a hearing held on March
17, 2017 before ALJ Paul Hebda.37 On April 7, 2017, the ALJ issued an unfavorable ruling
for the period from June 6, 2009, the alleged onset date, through March 31, 2014, the
date last insured.38 On April 26, 2018, the Appeals Council denied Ms. Jackson-Moten’s
32 A.R. 257–58.
33 A.R. 17–18, 41–42, 271.
34 A.R. 26, 63–64, 66–69, 259–68.
35 A.R. 15, 161–74.
36 A.R. 15.
37 A.R. 15, 38–72.
38 A.R. 12–27. Ms. Jackson-Moten filed two previous application for benefits, on March 13, 2009
and April 14, 2011. Both prior applications were denied and not appealed by Ms. Jackson-Moten.
A.R. 15, 128–141. The April 14, 2011 application was denied on December 16, 2011. A.R. 141.
In the ALJ decision on April 7, 2017, the ALJ noted that the December 16, 2011 decision was “res
judicata and administratively final.” He added that “[a]ny discussion of the period prior to
December 16, 2011 is for background purposes only and is not an implied reopening.” A.R. 15.
ALJ Hebda also noted that Ms. Jackson-Moten’s application of July 15, 2015 had “overcome the
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 8 of 29

Case No. 3:18-cv-00135-SLG, Jackson-Moten v. Berryhill
Decision and Order
Page 9 of 29
request for review.39 Ms. Jackson-Moten timely appealed to this Court on June 12,
2018.40
Medical Records
Although Ms. Jackson-Moten’s medical records date back to 2005, the Court’s
review of the record is primarily focused on the period from the date of the previous
application denial on December 16, 2011 through the date last insured of March 31, 2014.
The following are the relevant medical records:
In February 2011 and from approximately June to October 2011, Ms. Jackson-
Moten sought mental health care at Anchorage Neighborhood Health Center. Providers
observed that she was alert and oriented with linear thought processes, memory intact,
and speech of appropriate rate, volume, and tone to conversation.41
On August 4, 2011, Ms. Jackson-Moten saw Megan Engler, PAC, at Anchorage
Neighborhood Health Center as a follow up from a recent emergency room visit after
panic attacks. She reported having panic attacks 2–3 times per day, lasting one to two
hours. She reported right-sided numbness that contributed to her panic. PAC Engler
presumption of non-disability, as she has been diagnosed with sarcoidosis since the time of her
last decision, which has been considered in this decision.” A.R. 23.
39 A.R. 1–6.
40 Docket 1.
41 See e.g., A.R. 342–50, 355–58.
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 9 of 29

Case No. 3:18-cv-00135-SLG, Jackson-Moten v. Berryhill
Decision and Order
Page 10 of 29
noted that Ms. Jackson-Moten was oriented to time, place, and person with a dysthymic
mood and normal affect.42
On October 6, 2011, Ms. Jackson-Moten reported going to the emergency room
the previous day for anxiety/panic attack symptoms. She reported taking “hydroxyzine
only occasionally as needed.”43
On February 24, 2014, Ms. Jackson-Moten saw Ronald Christensen, M.D., a
family practitioner, for a consultative evaluation. She reported her “main complaint” on
that day was “multi-joint arthralgias involving her neck, shoulders, low back, right hip and
leg, and specifically her right foot.” On physical examination, Dr. Christensen observed
that Ms. Jackson-Moten’s lungs were clear with no wheezing, rales, or rhonchi. Dr.
Christensen also observed that Ms. Jackson-Moten had good range of motion in her hips,
knees, elbows, wrists, and hands, but “slightly limited range of motion” in the cervical
spine and shoulders and pain “at the extremes of range of motion.” He noted that Ms.
Jackson-Moten “could not stand on her right toes,” but could balance on each foot and
do “nearly a full squat.” Dr. Christensen noted that Ms. Jackson-Moten had 5/5 motor
strength and a coordinated gait, but it was “antalgic favoring the right leg.” He also noted
an “intermittent tremor of her right hand.” He assessed Ms. Jackson-Moten with a history
42 A.R. 351–52.
43 A.R. 344. At a pre-hearing conference on October 28, 2016, Ms. Jackson-Moten notified the
Senior Attorney at ODAR that she did not have health insurance or a primary care provider for
most of the time period from December 16, 2011 through the date last insured of March 31, 2014.
She stated she went to the emergency room for her health care. Ms. Jackson-Moten was not
under oath at the pre-hearing conference. A.R. 81–83, 88, 91.
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 10 of 29

Case No. 3:18-cv-00135-SLG, Jackson-Moten v. Berryhill
Decision and Order
Page 11 of 29
of multi-joint arthralgia “of unclear etiology”; neck pain with a normal x-ray of the cervical
spine; chronic low back pain; history of depression that was currently untreated; history
of irritable bowel syndrome; and right foot pain with “underlying degenerative joint disease
at the first metatarsophalangeal joint and bilateral pes planus.” Dr. Christensen opined
that Ms. Jackson-Moten was “generally functional in her activities of daily living insomuch
as she could get on and off the exam table and perform all of the physical examination
tasks.” He opined that she appeared “to be capable of at least light activity.”44
On February 28, 2014, Ms. Jackson-Moten saw Kathleen Michaud, Ph.D., for a
psychological evaluation. Dr. Michaud diagnosed Ms. Jackson-Moten with posttraumatic
stress disorder (PTSD); major depressive disorder, recurrent, severe; and generalized
anxiety disorder. Dr. Michaud rated Ms. Jackson-Moten’s Global Assessment of
Functioning score as 45. She observed that Ms. Jackson-Moten was well-groomed; her
speech was of normal rate and tone and was logical and coherent; she made good eye
contact; her mood was dysthymic and affect appropriate. Dr. Michaud also noted that
Ms. Jackson-Moten was oriented to person, place, time, and situation and appeared to
be of average intelligence or higher with concentration, abstract thinking, working
memory, expressive and receptive language intact, but with mildly impaired rote and
short-term memory. Her long-term memory appeared intact and her insight and judgment
were good. Ms. Jackson-Moten reported that she got up and went to work on some days.
She reported that on the days she did not work she would “sit around the house, read on
44 A.R. 401–04.
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 11 of 29

Case No. 3:18-cv-00135-SLG, Jackson-Moten v. Berryhill
Decision and Order
Page 12 of 29
my kindle, and wait until the kids come home, feed my son, and go to bed at 4 or 5pm.”
She reported being able to bath and dress on her own; drive; shop for herself “if she’s
only buying for one meal;” and could participate in childcare and take care of her finances
“although her husband [took] care of money matters.” Dr. Michaud also noted that Ms.
Jackson-Moten had participated in “limited psychotherapy, and currently does not take
medications she is prescribed as she does not like the side effects, and it appears she
has some fear of misusing medication as a means of self-harm, although she denied
current suicidal ideation.” Dr. Michaud opined that Ms. Jackson-Moten met the criteria
for posttraumatic stress disorder, major depressive disorder, and generalized anxiety
disorder.45
On March 14, 2014, Laura Jones, a state agency reviewing psychologist, opined
that Ms. Jackson-Moten had a mild restriction of her activities of daily living; moderate
difficulties maintaining social functioning; mild difficulties maintaining concentration,
persistence, or pace; and no episodes of decompensation.46
On April 15, 2015, Ms. Jackson-Moten saw Gregory Gerboth, M.D., a
pulmonologist. Dr. Gerboth noted that Ms. Jackson-Moten had “a new significant
enlargement of her hilar on chest x-ray with changes that are certainly most consistent
with sarcoidosis, but the pain she is experiencing seems to be somewhat disproportioned
to what we may expect to see with sarcoidosis, as this is typically [ ] something that does
45 A.R. 405–13.
46 A.R. 152–53.
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 12 of 29

Case No. 3:18-cv-00135-SLG, Jackson-Moten v. Berryhill
Decision and Order
Page 13 of 29
not cause a lot of pain.” On physical examination, Dr. Gerboth did not “hear any
wheezing,” although he noted “a definite loud rasp that almost sounds like stridors.” Dr.
Gerboth scheduled a CT scan.47
On April 16, 2015, Ms. Jackson-Moten had a CT scan of the chest. The CT scan
showed “[b]ilateral hilar, subcarinal, and superior mediastinal adenopathy, likely
sarcoidosis or lymphoma.”48
On May 1, 2015, Ms. Jackson-Moten had a biopsy of the right lower lobe of the
lung. The pathology report’s final diagnosis was “[b]ronchial mucosa with focal granuloma
suspicious but not diagnostic of sarcoidosis; special stains are negative for
microorganisms; recommend clinical correlation.”49
On July 29, 2015, Ms. Jackson-Moten had a lower third esophagus biopsy. The
biopsy showed “[m]ildly hyperplastic squamous esophageal mucosa consistent with
reflux esophagitis.”50 On August 3, 2015, Ms. Jackson-Moten was diagnosed with reflux
esophagitis (GERD).51
On August 17, 2015, Ms. Jackson-Moten saw Tonya Caylor, M.D., at Hillside
Family Medicine. Dr. Caylor prescribed Zoloft for anxiety. She also noted that “[o]nce Dr.
47 A.R. 414.
48 A.R. 417, 507.
49 A.R. 505.
50 A.R. 509.
51 A.R. 418.
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 13 of 29

Case No. 3:18-cv-00135-SLG, Jackson-Moten v. Berryhill
Decision and Order
Page 14 of 29
Gerboth has your sarcoid controlled on another medication, you may be able to wean off
the Prednisone which will also likely help your anxiety and panic attacks.”52
On August 28, 2015, Ms. Jackson-Moten had a chest x-ray. The x-ray showed
“[n]o active disease” and “[p]erihilar and mediastinal adenopathy, slightly decreased from
the prior study.”53
On December 1, 2015, Ron Feigin, M.D., a state agency reviewing physician,
provided a mental RFC assessment as of Ms. Jackson-Moten’s date last insured of March
31, 2014. He opined that Ms. Jackson-Moten was moderately limited in her ability to
understand and remember detailed instructions; carry out detailed instructions; maintain
attention and concentration for extended periods; work in coordination or proximity to
others; complete a normal workday without interruptions from psychologically based
symptoms; and perform at a consistent pace. Dr. Feigin opined that Ms. Jackson-Moten
was also moderately limited in her ability to accept instructions and respond appropriately
to criticism; get along with coworkers; and respond appropriately to changes in the work
setting.54
On March 24, 2016, Ms. Jackson-Moten went to the emergency department at
Alaska Regional Hospital. She reported a “productive cough, generalized malaise, and
a headache that began 2 days ago.” She also reported that she stayed “at home usually,
52 A.R. 416.
53 A.R. 501.
54 A.R. 169–71.
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 14 of 29

Case No. 3:18-cv-00135-SLG, Jackson-Moten v. Berryhill
Decision and Order
Page 15 of 29
but assisted her husband delivering newspapers for the last several days.” On physical
examination, Ms. Jackson-Moten had normal breath and heart sounds; was alert and
oriented to person, place, and time; and had a normal mood and affect. Ms. Jackson-
Moten was diagnosed with bronchitis and prescribed Tylenol, prednisone for five days,
and azithromycin. Ms. Jackson-Moten also had a chest x-ray taken. The x-ray showed
an “[i]nterval increase in right paratracheal and bilateral perihilar adenopathy. The pattern
and distribution [are] consistent with the clinical diagnosis of sarcoidosis. No evidence of
acute cardiopulmonary disease.”55
On March 6, 2017, Ms. Jackson-Moten saw Linda Pope, M.D., at Providence
Health & Services. Dr. Pope prescribed an albuterol inhaler, a fluticasone-salmeterol
inhaler, azithromycin, as well as hydrocodone-acetaminophen (Norco).56
Hearing Testimony on March 17, 2017
Ms. Jackson-Moten attended a hearing before ALJ Hebda on March 17, 2017
without an attorney or other representative.57 The ALJ notified her that the time period
Ms. Jackson-Moten needed to establish disability was from December 16, 2011 to March
55 A.R. 428–35, 508.
56 A.R. 498–500. Azithromycin is used to treat a wide variety of bacterial infections. See
https://www.webmd.com/drugs/2/drug-1527-3223/azithromycin-oral/azithromycin-250-500-mg-
oral/details.
57 Ms. Jackson-Moten also attended a pre-hearing conference with the Senior Attorney at ODAR
without representation on October 28, 2016. A.R. 74–95. At the pre-hearing conference, Ms.
Jackson-Moten notified the Senior Attorney at ODAR that she initiated care with Dr. Pope to
establish Dr. Pope as a primary care provider. A.R. 90–91; see also A.R. 49, 53.
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 15 of 29

Case No. 3:18-cv-00135-SLG, Jackson-Moten v. Berryhill
Decision and Order
Page 16 of 29
31, 2014.58 The ALJ also notified Ms. Jackson-Moten that she had been informed of her
right to representation at a prehearing conference on October 28, 2016.59 Ms. Jackson-
Moten testified that she had worked at Tesoro as a cashier clerk, Subway as crew and as
a manager, telephone technical support for Direct TV, and as a payday loan manager.
She also reported working for Market Connect Group in 2013 and 2014. Ms. Jackson-
Moten testified that she had a driver’s license and drove herself to the hearing. She
testified that she needed some help dressing and with the shower and bath, that her
children did the housework, but she would try to vacuum the floor. She reported for
“almost a year” she had been restricted to her bed due to hip pain. Ms. Jackson-Moten
testified that she had adverse effects from some of her medications and she was
“exhausted no matter what.” She also stated she had breathing problems and “every time
I [go] outside I get sick, or if I smell cigarettes then I’m really sick. If someone is smoking
by a door and I inhale any of it then it causes me really bad breathing problems.” Ms.
Jackson-Moten also testified that she had anxiety “from the breathing problem, because
when I feel like I can’t breathe I start to panic and I start running around, and its not . . .
it’s not [appropriate in a] workplace environment.” She testified that she had sarcoidosis
in her eyes and had sarcoidosis arthritis, which had been “ongoing for years now,” but
that she had been “misdiagnosed quite few times [in the past] because I didn’t have health
insurance.” Ms. Jackson-Moten also testified that she had stopped taking prescribed
58 A.R. 39.
59 A.R. 39, 77–80.
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 16 of 29

Case No. 3:18-cv-00135-SLG, Jackson-Moten v. Berryhill
Decision and Order
Page 17 of 29
psychiatric medications because “the anxiety, it never got better and . . . nothing
worked.”60
Harvey Alpern, M.D., testified as a medical expert based on his review of the
records. He identified Ms. Jackson-Moten’s medically determinable impairments, but he
opined that they did not meet or equal a listing. He opined initially that Ms. Jackson-
Moten was capable of sitting, standing, and walking six out of eight hours, but revised his
opinion for standing and walking to two out of eight hours based on Ms. Jackson-Moten’s
testimony that she had received a shot in both hips in the past year “which didn’t work.”
Dr. Alpern also opined that Ms. Jackson-Moten could lift 20 pounds occasionally; 10
pounds frequently; “occasionally postural, all of them”; occasionally lift overhead on the
right side; occasionally push and pull with the right upper extremity; never climb ropes or
ladders; and “no concentrated dust, fumes, or irritants.” He testified that his opinions
applied to the time period before March of 2014.61
Colette Valette, a clinical psychologist, also testified as a medical expert based on
her record review. She reported that Ms. Jackson-Moten had major depressive disorder,
recurrent; generalized anxiety disorder; and post-traumatic stress disorder. The ALJ
directed Dr. Valette to focus her opinion on the period from December 17, 2011 to March
2014. Dr. Valette testified that Ms. Jackson-Moten’s mental health impairments did not
60 A.R. 40–43, 49, 56–65.
61 A.R. 43–51. Even though Dr. Alpern altered his standing and walking opinion based on Ms.
Jackson-Moten’s testimony that she had received hip injections during the year prior to the
hearing, he did not explain how those injections applied to the time period before March 2014 nor
was he asked by the ALJ to explain his revised opinion. A.R. 48–49.
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 17 of 29

Case No. 3:18-cv-00135-SLG, Jackson-Moten v. Berryhill
Decision and Order
Page 18 of 29
meet or equal any of the listings. She opined that Ms. Jackson-Moten had mild limitations
understanding, remembering, or applying information; no limitations interacting with
others; no limitations with concentrating, persisting, or maintaining pace; and mild
limitations adapting and managing herself. Dr. Valette noted that Ms. Jackson-Moten
could perform her daily activities, including driving, paying bills, working on the computer,
and taking care of her children. She also noted that in 2011, Ms. Jackson-Moten had a
“remote history of being noncompliant with her medications.”62
William Weiss testified as the vocational expert. He noted that, based on the ALJ’s
hypothetical of light work with limitations, including “avoidance of all irritants such as
fumes, odors, dusts,” Ms. Jackson-Moten would be capable of her past work as a payday
loan manager or similar position because “it’s indoor work” so she would not “have to deal
with any dusts, gasses, et cetera” and “the only thing that would preclude the past work
would be possibly to include cologne and perfume, but that would be the only issue.” Ms.
Jackson-Moten also questioned Mr. Weiss. She asked if an employee with “problems
with the dust, and the cologne, and the cigarettes, and things like that” would be
employable. Mr. Weiss responded that “typically workplaces do not allow smoking” and
if the individual was “a supervisor” he or she could ask employees not to wear cologne or
perfume. When Ms. Jackson-Moten asked Mr. Weiss about smoking outside the
premises that is “still within the premises or very close to,” Ms. Weiss answered that
62 A.R. 52–57.
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 18 of 29

Case No. 3:18-cv-00135-SLG, Jackson-Moten v. Berryhill
Decision and Order
Page 19 of 29
“typically that’s not allowed in the premises” and “I don’t know, I’m not a physician . . . I
couldn’t really respond.”63
IV. DISCUSSION
Ms. Jackson-Moten is represented by counsel. In her opening brief, Ms. Jackson-
Moten asserts that the ALJ: (1) “erred at step two to the extent [he] found anxiety not
severe . . . with respect to her past relevant work environments”; (2) erred at step four
“because sarcoidosis prevents Ms. Moten from returning to past relevant work”; and (3)
failed to “fully and fairly develop the record generally, and with particular focus on the
environmental conditions of Ms. Moten’s past relevant work.”64 The Commissioner
disputes Ms. Jackson-Moten’s assertions.65 The Court will address each of Ms. Jackson-
Moten’s assertions in turn:
A. Development of the Record and the ALJ’s Step Two Analysis
Ms. Jackson-Moten asserts that the ALJ did not fully and fairly develop the record.
Specifically, she argues that the ALJ failed to fully and fairly develop the record “with
particular focus on the environmental conditions of Ms. Moten’s past relevant work.”66
Additionally, she alleges that the ALJ erred in finding that Ms. Jackson-Moten’s anxiety
was not severe at Step Two of his disability analysis “with respect to her past relevant
63 A.R. 68–71.
64 Docket 13 at 1–13.
65 Docket 14 at 2–8.
66 Docket 13 at 10.
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 19 of 29

Case No. 3:18-cv-00135-SLG, Jackson-Moten v. Berryhill
Decision and Order
Page 20 of 29
work environments.”67 The Commissioner argues that because the agency “ordered two
consultative examinations in order to obtain objective evidence about the severity of [Ms.
Moten-Jackson]’s physical and mental impairments,” the duty to develop the record was
satisfied.68
1. Legal Standard.
The ALJ has an “independent ‘duty to fully and fairly develop the record and to
assure that the claimant’s interests are considered.’”69 An “ALJ’s duty to develop the
record further is triggered only when there is ambiguous evidence or when the record is
inadequate to allow for proper evaluation of the evidence.” Additionally, the “ALJ must
be especially diligent when the claimant is unrepresented or has only a lay
representative.”70 The Social Security regulations define severe impairment as an
impairment which significantly limits a claimant’s “ability to do basic work activities.”71
Further, to be severe, the impairment must “result from anatomical, physiological, or
psychological abnormalities that can be shown by medically acceptable clinical and
laboratory diagnostic techniques.”72
67 Docket 13 at 5–6, 9–10.
68 Docket 14 at 7.
69 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001).
70 McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011).
71 20 C.F.R. §§ 404.1521; see also Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (an ALJ
must have substantial evidence to find that the medical evidence clearly establishes that the
claimant lacks a medically severe impairment or combination of impairments).
72 20 C.F.R. §§ 404.1521.
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 20 of 29

Case No. 3:18-cv-00135-SLG, Jackson-Moten v. Berryhill
Decision and Order
Page 21 of 29
2. Analysis
In his decision, ALJ Hebda found Ms. Jackson-Moten’s right shoulder osteoarthritis and
sarcoidosis were severe during the time period between December 2011 and March 31,
2014. He determined that Ms. Jackson-Moten’s major depressive disorder, generalized
anxiety disorder, post-traumatic stress disorder, and all other medically determinable
physical impairments were non-severe.73 The ALJ considered Ms. Jackson-Moten’s
testimony regarding her activities of daily living and determined that “[o]verall, the
evidence, such as [Ms. Jackson-Moten’s] ability to drive, perform some work activity
through 2014, and help her husband deliver newspaper[s], is not consistent with the
alleged severity of her limitations.”74 Ms. Jackson-Moten’s RFC did not include any
limitations due to mental impairments, but the ALJ limited Ms. Jackson-Moten to avoiding
“all exposure to irritants, such as fumes, odors, dusts, and gases.”75
Even though the ALJ found Ms. Jackson-Moten’s anxiety non-severe at Step Two,
he had a duty to consider the combined effect of all of Ms. Jackson-Moten’s
impairments.76 However, ALJ Hebda did not consider whether Ms. Jackson-Moten’s
mental impairments, specifically anxiety, combined with a delayed diagnosis of
73 A.R. 18–20.
74 A.R. 26.
75 A.R. 20–21.
76 A.R. 20; see Smolen v. Chater, 80 F.3d 1273, 1290 (An ALJ “must consider the combined effect
of all of the claimant’s impairments on her ability to function, without regard to whether each alone
was sufficiently severe.”).
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 21 of 29

Case No. 3:18-cv-00135-SLG, Jackson-Moten v. Berryhill
Decision and Order
Page 22 of 29
sarcoidosis, could have been disabling.77 At the March 17, 2017 hearing, Ms. Jackson-
Moten testified that she “[had been] misdiagnosed quite a few times because I didn’t
have health insurance . . . [b]ut later on I find out it’s something else, it’s the sarcoidosis
arthritis . . [s]o this has been . . . ongoing for years now.”78 Although not under oath, Ms.
Jackson-Moten notified the Senior Attorney at ODAR at a pre-hearing conference that
she did not have health insurance or a primary care provider for most of the relevant
time period from December 16, 2011 to March 31, 2014 and that she went to the
emergency room for health care during that time.79 She also testified that “anxiety
factors into her breathing impairment . . . because when I feel like I can’t breathe I start
to panic and I start running around and it’s not — it’s not workplace environment. I
couldn’t go to work and run around like that….”80
Because the ALJ acknowledged Ms. Jackson-Moten’s sarcoidosis was a severe
medically determinable impairment, “all medically determinable impairments must be
considered in the remaining steps of the sequential analysis.”81 ALJ Hebda should have
developed the record regarding whether the combination of Ms. Jackson-Moten’s mental
impairments and sarcoidosis could have been disabling during the relevant time period
77 A.R. 21–22; see also Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (An ALJ “must
consider the combined effect of all of the claimant’s impairments on her ability to function, without
regard to whether each alone was sufficiently severe.”).
78 A.R. 49–50.
79 A.R. 81–83, 88, 91.
80 A.R. 65.
81 Orn v. Astrue, 495 F.3d 625, 630; see also 42 U.S.C. § 423(d)(2)(B).
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 22 of 29

Case No. 3:18-cv-00135-SLG, Jackson-Moten v. Berryhill
Decision and Order
Page 23 of 29
from June 6, 2009 through March 31, 2014.82
Ms. Jackson-Moten also correctly points out that the ALJ should have explained
the meaning of “date last insured” to her at the March 17, 2017 hearing.83 However, this
error alone is harmless.84 But, because the ALJ here “failed to set forth the reasoning
behind [his] decisions in a way that allows for meaningful review,” the ALJ will also have
the opportunity to correct this error at a new hearing. 85
In light of the reasons set forth above, the Court finds that the ALJ failed to fully
and fairly develop the record.
B. The ALJ’s Step Four Analysis
Ms. Jackson-Moten alleges that the ALJ erred at Step Four in his five-step process
for determining disability. She alleges that the ALJ did not “address her past work
82 Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008); see also SSR 96-
8p (“In assessing RFC, the adjudicator must consider limitations and restrictions imposed by all
of an individual’s impairments, even those that are not ‘severe.’”).
83 Ms. Jackson-Moten cites the following exchange between the ALJ and herself at the March 17,
2017 hearing:
ALJ: Okay. And as I mentioned earlier we have a cutoff date of March of 2014,
because that is your date last insured. Okay?
CLMT: What do you mean last insured?
ALJ: I’ll explain that to you when we finish with the doctor. And I forgot to mention
to you, Doctor, as well. The date last insured is March of 2014…. A.R. 48–49.
There is no indication in the record of the March 2017 hearing that the ALJ explained the concept
of “date last insured” to Ms. Jackson-Moten.
84 The ALJ directed the testifying experts to confine their testimony to the period from December
17, 2011 and March 2014 and considered Ms. Jackson-Moten’s testimony regarding her work
activities during the relevant time period. A.R. 26, 49, 53.
85 Docket 13 at 11–12; see also Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015).
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 23 of 29

Case No. 3:18-cv-00135-SLG, Jackson-Moten v. Berryhill
Decision and Order
Page 24 of 29
environments” and incorrectly presumed that her past work environments were “irritant
free” based on a “determination that Mr. Weiss’s speculative notions about past relevant
work conditions should be preferred over the first-person testimony of Ms. Moten who
actually worked in those past relevant working environments.”86 The Commissioner
argues that the ALJ “correctly excluded possible accommodations from his residual
functional capacity and step four assessments.”87 Additionally, the Commissioner asserts
that “a medical restriction to avoid excessive amounts [of] fumes, etc., has a ‘minimal’
impact [on] a claimant’s ability to do work because ‘most job environments do not involve
great . . . amounts of dust, etc.’”88
1. Legal Standard
At Step Four of an ALJ’s disability determination process, “claimants have the
burden of showing that they can no longer perform their past relevant work.”89 However,
the ALJ “still has a duty to make the requisite factual findings to support his conclusion.”90
“This is done by looking at the ‘residual functional capacity and the physical and mental
demands’ of the claimant’s past relevant work” and the relation of the RFC to the past
86 Docket 13 at 6–9.
87 Docket 14 at 6.
88 Docket 14 at 6 (citing SSR 85–15, 1985 WL 56857, at *8).
89 20 C.F.R. § 404.1520(e); Clem v. Sullivan, 894 F.2d 328, 330 (9th Cir. 1990).
90 Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001) (The finding by the ALJ that claimant
could perform her past relevant work as a hand packager in a food cannery, despite being
illiterate in English, and being unable to stoop, climb, or balance “more than occasionally” due to
her physical impairments, was not supported by the administrative record.) (citing SSR 82-62).
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 24 of 29

Case No. 3:18-cv-00135-SLG, Jackson-Moten v. Berryhill
Decision and Order
Page 25 of 29
work. However, in the Ninth Circuit, courts have “never required explicit findings at step
four regarding a claimant’s past relevant work both as generally performed and as actually
performed.”91
2. Analysis
Here, the ALJ found that Ms. Jackson-Moten had severe impairments of right
shoulder osteoarthritis and sarcoidosis. Based thereon, ALJ Hebda concluded that Ms.
Jackson-Moten could perform light work with exceptions, including avoiding “all exposure
to irritants, such as fumes, odors, dusts, and gases.” Comparing the RFC with the
physical and mental demands of her past work, the ALJ determined Ms. Jackson-Moten
was able to perform her past work as generally performed. He relied on the testimony of
the vocational expert to determine that “a person with [Ms. Jackson-Moten]’s current
residual functional capacity could perform the payday loan manager, tech support, and
Subway manager positions.”92
First, the RFC is an individual’s “maximum remaining ability to do sustained work-
related physical and mental activities in an ordinary work setting on a regular and
continuing basis,” and “must include a discussion of the individual’s abilities on that
basis.”93 Ms. Jackson-Moten asserts that the RFC in her case “effectively precludes past
91 Id. at 844–45; 20 C.F.R. § 404.1520(e).
92 A.R. 18–26, 68–71.
93 SSR 96-8p at *2 (emphasis omitted).
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 25 of 29

Case No. 3:18-cv-00135-SLG, Jackson-Moten v. Berryhill
Decision and Order
Page 26 of 29
relevant work” to the extent it “precludes ‘all exposure to irritants, such as fumes, odors,
dusts, and gases.’”94 Specifically, Ms. Jackson-Moten emphasizes that, per SSR 85-15:
Where a person has a medical restriction to avoid excessive amounts of
noise, dust, etc., the impact on the broad world of work would be minimal
because most job environments do not involve great noise, amounts of dust,
etc.
[But] [w]here an individual can tolerate very little noise, dust, etc., the impact
on the ability to work would be considerable because very few job
environments are entirely free of irritants, pollutants, and other potentially
damaging conditions.95
The Dictionary of Occupational Titles (“DOT”) and Selected Characteristics of
Occupations Defined in the Revised Dictionary of Occupational Titles (“SCO”) describe
Ms. Jackson’s past jobs of payday loan manager (DOT 241.137-010), tech support (DOT
952.364-010), and Subway manager (DOT 185.137-010). For each of these jobs, the
“atmospheric conditions”96 are described as “Not Present — Activity or condition does
not exist.”97 However, Ms. Jackson-Moten argues that she would still be exposed to
tobacco smoke wafting in from outside her work environments.
Upon questioning at the hearing by Ms. Jackson-Moten, Mr. Weiss did not fully
address the effect of smoking or other odors on Ms. Jackson-Moten’s combination of
94 Docket 13 at 9.
95 SSR 85-15.
96 The category “atmospheric conditions” is described in the SCO as “[e]xposure to such
conditions as fumes, noxious odors, dusts, mists, gases, and poor ventilation, that affect the
respiratory system, eyes, or the skin.” SCO Appendix D at D-2.
97 See DICOT 241.137-010, 1991 WL 672238; DICOT 952.364-010, 1991 WL 688342; and DICOT
185.137-010, 1991 WL 671285.
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 26 of 29

Case No. 3:18-cv-00135-SLG, Jackson-Moten v. Berryhill
Decision and Order
Page 27 of 29
physical and mental impairments. Specifically, when asked by Ms. Jackson-Moten about
smoking outside work premises, Mr. Weiss answered, “typically [smoking is] not allowed
in the premises” and “I don’t know, I’m not a physician . . . I couldn’t really respond.”98
This is a factual matter that could potentially prevent Ms. Jackson-Moten from
continuing her past work as actually performed or generally performed.99 Given his
reliance on Mr. Weiss’s testimony and the ALJ’s own determination that Ms. Jackson-
Moten should avoid “all exposure to irritants, such as fumes, odors, dusts, and gases,”
the ALJ was not free to ignore the potential effect of smoking or other irritants in the work
environment on Ms. Jackson-Moten’s ability to perform her past relevant work.100
Because the ALJ did not consider smoke or other odors despite determining Ms.
Jackson-Moten must avoid all exposure to them, the ALJ’s Step Four determination lacks
adequate factual findings and is not supported by substantial evidence. Accordingly,
remand for further proceedings on this basis is also warranted.
98 A.R. 68–71.
99 This inquiry is not the same as considering accommodations to perform past work. See SSR
11-2p (“When we determine whether a person can perform his or her past relevant work, we do
not consider potential accommodations unless his or her employer actually made the
accommodation.”) Although SSR 11-2p deals with whether a “young adult” (ages 18 to 25) are
disabled under the rules, the SSA uses “the same definition for disability as we do for other adults.”
SSR 11-2p. See also Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 803 (1999)
(“when the SSA determines whether an individual is disabled for SSDI purposes, it does not take
the possibility of “reasonable accommodation” into account, nor need an applicant refer to the
possibility of reasonable accommodation when she applies for SSDI.”).
100 A.R. 21–22.
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 27 of 29

Case No. 3:18-cv-00135-SLG, Jackson-Moten v. Berryhill
Decision and Order
Page 28 of 29
C. Scope of Remand
The “ordinary remand rule” applies to disability cases. Under this rule, if “the
reviewing court simply cannot evaluate the challenged agency action on the basis of the
record before it, the proper course, except in rare circumstances, is to remand to the
agency for additional investigation or explanation.”101 Here, the Court has found that the
ALJ’s analysis at Step Four was not supported by substantial evidence and the ALJ did
not fully and fairly develop the record. Further, Ms. Jackson-Moten’s requested remedy
is to “reverse the final agency decision and remand to the agency” for a de novo hearing
and new decision.102 Therefore, the case will be remanded for a new hearing and
decision.
V. ORDER
The Court, having carefully reviewed the administrative record, finds that the ALJ’s
determinations are not free from legal error. Accordingly, IT IS ORDERED that Ms.
Jackson-Moten’s request for relief at Docket 13 is GRANTED, the Commissioner’s final
decision is VACATED, and the case is REMANDED to the SSA for further proceedings
consistent with this decision.
101 Treichler, 775 F.3d at 1099 (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)).
102 Docket 13 at 13.
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 28 of 29

Case No. 3:18-cv-00135-SLG, Jackson-Moten v. Berryhill
Decision and Order
Page 29 of 29
The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 22nd day of March 2019 at Anchorage, Alaska.
/s/ Sharon L. Gleason____________
UNITED STATES DISTRICT JUDGE
Case 3:18-cv-00135-SLG Document 15 Filed 03/22/19 Page 29 of 29