Gray v. Kijakazi

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
CHERI G.,1
Plaintiff,
vs.
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant.
Case No. 3:21-cv-00060-RRB
ORDER of REMAND
(Docket 17)
I. 	INTRODUCTION
Claimant, 	Cheri 	G., 	originally 	filed 	applications 	for 	Social 	Security
Disability Insurance benefits (“SSDI”) and Supplemental Security Income benefits (“SSI”)
in 2012, alleging disability beginning December 29, 2011.2 Claimant’s applications have
been denied repeatedly, and she now seeks relief from this Court.3 	She argues that the
determination by the Social Security Administration (“SSA”) that she is not disabled,
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 Tr. 437, 444.
3 Dockets 1, 15.
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within the meaning of the Social Security Act (“the Act”),4 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 calculation of benefits.
The Commissioner of the SSA (“Commissioner”) has filed a responsive brief
requesting remand for further proceedings.5 	Claimant has replied.6 	For the reasons set
forth below, Claimant=s Motion for Remand at Docket 17 is GRANTED IN PART, the
Commissioner’s final decision is VACATED, and the case is REMANDED to the SSA
as explained below.
II. 	DISCUSSION
Claimant was born on August 13, 1973, and was 38 years old on her alleged
disability onset date of December 29, 2011, and is 47 years old as of this date. She initially
alleged disability due to a work-related back injury.7 In 2013, she reported a rapid decline
in her physical and mental stability, noting more pain, more difficulty standing and
walking, increased medication, irrational thinking, memory problems, and medication side
effects.8 	As of September 2019, she alleged medically determinable severe impairments
including disorders of the spine, degenerative disc disease, neuropathy, carpal tunnel
syndrome, major depressive disorder, general anxiety disorder, and fibromyalgia.9 	Her
date last insured is September 30, 2017.10
4 42 U.S.C. § 423; 42 U.S.C. § 1381.
5 Docket 22.
6 Docket 23.
7 Tr. 147.
8 Tr. 500.
9 Tr. 2726.
10 Tr. 2698.
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A. 	Background
This matter has languished in the system for almost a decade. 	Claimant
originally applied for SSDI on June 19, 2012, and for SSI shortly thereafter, alleging
disability beginning December 29, 2011.11 Following two hearings before ALJ Paul Hebda
in 2013 and 2014, ALJ Hebda issued a decision finding Claimant not disabled.12 	The
Appeals Council remanded the claims back to ALJ Hebda to consider evidence submitted
after the decision. Following two additional hearings in 2016, ALJ Hebda issued a second
decision finding Claimant was not disabled on January 20, 2017.13 Claimant appealed this
decision to the U.S. District Court for the District of Alaska (“The first appeal”).14
While the first appeal was pending, Claimant filed new claims for benefits
on June 2, 2017, again alleging that her disability began on December 29, 2011.15 The new
claims were denied in October 2017.16 In August 2018, the Honorable Sharon L. Gleason
remanded the first appeal to the ALJ for further proceedings, finding that although the ALJ
had failed to credit to treating providers’ opinions, it also was not clear from the record that
Claimant 	was 	disabled. 	Accordingly, 	an 	award 	for 	immediate 	benefits 	was 	not
appropriate.17
Upon remand, the case was assigned to ALJ Cecilia LaCara. 	ALJ LaCara
determined that the 2012 applications and the 2017 applications were “folded in” to the
11 Tr. 437, 444.
12 Tr. 177–92.
13 Tr. 16–34.
14 Case No. 3:17-cv-00126 SLG; Tr. 2330.
15 Tr. 2523, 2532.
16 Tr. 2429.
17 Tr. 2417.
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remand.18 	A hearing was held on September 17, 2019,19 and on November 22, 2019,
ALJ LaCara entered a written order finding Claimant was “not disabled.”20 Claimant once
again has appealed to the U.S. District Court, and the second appeal was randomly assigned
to the undersigned for consideration. The parties agree that the ALJ erred and that remand
is necessary, but disagree as to the appropriate nature of remand: an award of benefits, or
further proceedings.
B. 	Determination of Disability
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.21
The Act provides for the payment of disability benefits to individuals who have contributed
to the social security program and who suffer from a physical or mental disability.22 The
Commissioner has established a five-step process for determining disability within the
meaning of the Act.23 	A claimant bears the burden of proof at steps one through four in
18 Tr. 2197.
19 Tr. 2194–246.
20 Tr. 2176.
21 42 U.S.C. § 423(d)(1)(A).
22 42 U.S.C. § 423(a).
23 20 C.F.R. § 404.1520(a)(4).
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order to make a prima facie showing of disability24 If a claimant establishes a prima facie
case, the burden of proof then shifts to the agency at step five.25
C. 	ALJ Decision
Applying the 5-step process, ALJ LaCara concluded that: Step 1, Claimant
had not engaged in substantial gainful activity since her alleged onset date; Step 2,
Claimant suffered from severe impairments, including degenerative disc disease of the
lumbar and cervical spines, obesity, hypertension, headache, depression NOS, anxiety
NOS, personality disorder cluster B traits, and prescription narcotic overuse; and Step 3,
Claimant’s severe impairments did not meet any medical listings.26
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.27 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.28 This RFC assessment is used at both Step Four
and Step Five.29 In evaluating her RFC, the ALJ concluded that Claimant had the capacity
24 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).
25 Treichler, 775 F.3d at 1096 n.1.
26 Tr. 2150–55. These findings are virtually identical to the 2017 findings by ALJ Hebda, who
included “migraine headache” in addition to “headache” in his severe impairment findings. Tr. 19.
27 Berry v. Astrue, 622 F.3d 1228, 1233 (9th Cir. 2010); 20 C.F.R. §§ 404.1545(a)(1),
416.945(a)(1).
28 20 C.F.R. § 404.1545(a)(3).
29 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
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to perform sedentary work, limited to “simple, routine, repetitive tasks with only occasional
interaction with the public and coworkers, but no tandem tasks.”30
At Step 4, the ALJ found that Claimant could not perform her past relevant
work as a medical assistant, dialysis technician, nurse assistant/aide, or teacher aide.31 At
Step 5 the burden of proof shifts to the Commissioner.32 	With the assistance of a
vocational expert (“VE”), the ALJ concluded that Claimant was able to perform sedentary
work in the national economy, such as document preparer, clerical addresser, and
surveillance system monitor.33 	Accordingly, the ALJ concluded that Claimant was not
disabled.
D. 	Analysis
1. 	Positions of the parties
Claimant contends that the ALJ erred at Step 2 (thus impacting the RFC)
with respect to her fibromyalgia and myofascial pain syndrome; at Step 3, in the evaluation
of Claimant’s headaches; and at Step 5 in relying on the testimony of the VE, who provided
jobs that exist outside of Claimant’s RFC.34
The Commissioner concedes that “the ALJ inadvertently missed some of the
assessed limitations . . . and did not review or discuss some records regarding [Claimant’s]
functioning,”35 arguing that these errors require remand for the ALJ to further develop the
30 Tr. 2155–74.
31 Tr. 2174–75. The Court notes that ALJ Hebda determined in January 2017 that Claimant was
capable of a medium RFC, and could perform her past relevant work. Tr. 24, 33.
32 Treichler, 775 F.3d at 1096 n.1.
33 Tr. 2175–76.
34 Docket 17 at 1.
35 Docket 22 at 8.
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record, reevaluate Claimant’s alleged symptom complaints, and perform a new five-step
analysis, including determining a new RFC.36 	The Commissioner argues that “there are
unresolved issues, the ALJ has provided legally sufficient reasons for at least some of [her]
findings, and the record casts doubt on [Claimant’s] allegation that she is totally
disabled.”37 As examples, the Commissioner alleges evidence of malingering, symptom
magnification, drug seeking behavior, failure to follow treatment recommendations,
inconsistencies 	between 	the 	record 	and 	Claimant’s 	testimony, 	and 	activities
inconsistent with disability.38 In short, the Commissioner argues that remand for further
proceedings 	is 	necessary 	because 	“the 	record 	does 	not 	clearly 	indicate 	whether
[Claimant’s] impairments limit her from all work.”39 But the Commissioner fails to make
reference to the record, relying only on the ALJ’s findings as to the foregoing, despite the
Commissioner’s concession that the ALJ’s analysis of the record was inadequate.
The Court has reviewed the ALJ’s findings, and takes issue with the
Commissioner’s summary in bold above. 	The ALJ found that Claimant engaged in “a
number of daily activities,” including personal hygiene, laundry, vacuuming, and light
housework.40 	These activities are not inconsistent with disability.41 	Although the
Commissioner alleges evidence of “drug seeking behavior,” the Court finds no such
36 Docket 22 at 3.
37 Id. at 5.
38 Id. at 5–6.
39 Id. at 9.
40 Tr. 2157.
41 “The Social Security Act does not require that claimants be utterly incapacitated to be eligible
for benefits, . . . and many home activities are not easily transferable to what may be the more grueling
environment of the workplace, where it might be impossible to periodically rest or take medication.” Fair
v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989).
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allegation in the ALJ opinion. 	Rather, although the ALJ suggested that Claimant used
prescribed opioids for a long time, the ALJ used an absence of prescribed opioid
medication in Claimant’s March 2018 drug screen as evidence of non-compliance.42 The
ALJ also faulted Claimant for failure to fill prescriptions for Percocet and Flexeril in
December 2011, “because she did not like to take medications.”43 Moreover, the medical
records reflect that Claimant sought to reduce her reliance on opiates,44 and in 2015 and
2016 at least two providers noted a “low risk for opiate abuse.”45 	Allegations of
malingering and symptom magnification were by no means universal among providers. In
any event, such “unresolved issues” are more relevant to Claimant’s onset date, than to
whether or not she was disabled, as discussed below.
2. 	Listed impairment
Claimant 	alleges 	that 	her 	headache 	disorder 	is 	the 	equivalent 	of
Listing 11.02B.46 Social Security Ruling (“SSR”) 19-4p, explains that “Primary headache
disorder is not a listed impairment in the Listing of Impairments (listings); however, we
may find that a primary headache disorder, alone or in combination with another
impairment(s), medically equals a listing,” specifically, Listing 11.02. Claimant complains
42 Tr. 2161.
43 Tr. 2162.
44 Tr. 2811, 2086.
45 Tr. 1769, 2031.
46 Docket 17 at 10–15.
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that the ALJ accepted her headaches as a severe impairment, but improperly determined
that Claimant did not meet the equivalent signs and limitations of Listing 11.02.47
The 	Court 	takes 	judicial 	notice 	that 	SSR 	19-4p 	became 	effective 	on
August 26, 2019,48 two years after Judge Gleason made her finding that it was not clear
from the record that Claimant was disabled.49 Accordingly, the failure of Judge Gleason
to find Claimant’s condition met a listed impairment has no precedential value. 	The
September 17, 2019, ALJ hearing that led to this appeal was held less than a month after
SSR 19-4p issued.50 The ALJ acknowledged SSR 19-4p, but dedicated only one paragraph
to Listing 11.02.51
Listing 11.02B describes seizures, but also is applicable via SSR 19-4p to
headaches “occurring at least once a week for at least 3 consecutive months despite
adherence 	to 	prescribed 	treatment.” 	The 	November 	2019 	ALJ 	opinion 	addressed
Claimant’s history of headaches by citing four medical records—one dated October 2012,
and three from early 2016.52 	The ALJ opinion made a point of acknowledging “stress
headaches,” as distinct from “migraine headaches,” and found that Claimant suffered only
47 Docket 17 at 10. During the September 2019 hearing, the medical expert, Dr. Campbell, made
note of Claimant’s migraines, and opined that this was a “medically-determinable impairment,” but noted
that she “did not see it under a particular listing,” without addressing Listing 11.02. Tr. 2227.
48 https://www.ssa.gov/OP_Home/rulings/di/01/SSR2019-04-di-01.html.
49 Tr. 2417.
50 Tr. 2194.
51 Tr. 2153.
52 Tr. 2151, citing Exhibits 22F/4 (Initial headache diagnosis 10/29/12, Tr. 1325-29); 47F/5
(Health status report form dated 10/29/12, indicates “PT appears to be in chronic pain continuously.”); 61F-
1 (1/7/16 office visit for “chronic migraine,” Tr. 1936); 64F/1-2 (2/24/16 office visit for “chronic
migraine”); and 78F/7 (4/11/2016 Neurology record. Brain MRI ordered due to chronic migraine.).
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from the former.53 	Notably, SSR 19-4p discusses how to establish that a claimant has a
medically determinable impairment of a “primary headache disorder,” not a “migraine
disorder.”
To evaluate whether a primary headache disorder is equal in severity and
duration to the criteria in 11.02B, the SSA considers:
[A] detailed description from an AMS of a typical headache
event, including all associated phenomena (for example,
premonitory 	symptoms, 	aura, 	duration, 	intensity, 	and
accompanying 	symptoms); 	the 	frequency 	of 	headache
events; adherence to prescribed treatment; side effects of
treatment (for example, many medications used for treating a
primary headache disorder can produce drowsiness, confusion,
or inattention); and limitations in functioning that may be
associated with the primary headache disorder or effects of
its treatment, such as interference with activity during the day
(for example, the need for a darkened and quiet room, having
to lie down without moving, a sleep disturbance that affects
daytime activities, or other related needs and limitations).54
The ALJ opined that the record did “not appear” to contain the foregoing,55 finding
generally that “there is no evidence that the claimant’s headaches occur at least once per
week for at least three consecutive months despite adherence to prescribed treatment.”56
But Claimant argues that the record contains evidence contradicting the ALJ’s conclusion,
and argues that she meets the B criteria of Listing 11.02.57 Specifically, Claimant identified
numerous medical records dated from 2012 through 2019, detailing the progression and
53 Tr. 2151. The ALJ opined that although Dr. Campbell testified that migraines were a medically
determinable impairment, “this seems dubious.” Id.
54 SSR 19-4p at 4 (emphasis added).
55 Tr. 2151.
56 Tr. 2153.
57 Docket 17 at 11.
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treatment of her headaches/migraines. 	In support of her argument, Claimant’s brief
summarizes headache-related medical records dating from May 2012 through July 2019,
arguing that this evidence, which was before the ALJ, “demonstrated that [Claimant] had
experienced severe headaches on an almost-daily basis over the course of several years
despite following all of the treatment recommendations, including prophylactic and as-
needed medications.”58
3. 	Medical records
The Court has independently reviewed the relevant medical records and
notes as follows.59 The first “bad headache” was noted by her chiropractor in May 2012.60
In October 2012, Claimant was seen by Dr. Chandler at AA Spine & Pain Clinic for an
“initial evaluation for the primary complaint of headache, neck pain, and generalized body
pain.”61 In February 2013, “frequent headaches” were noted by her Nurse Practitioner.62
By December 2015, despite continued use of prescribed opioids for pain, she
reported daily headaches “turning into migraines,” and expressed desire for alternative
treatment options, with her provider noting nausea as a side-effect of the opioids.63
58 Docket 17 at 12–14.
59 Key phrases relevant to SSR 19-4p are italicized below by the Court.
60 Tr. 1040–42.
61 Tr. 1325.
62 Tr. 1544.
63 Tr. 2811.
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In January 2016 she saw Dr. Shanley for “chronic migraine without aura
without status migrainosus, not intractable.”64 	Dr. Shanley noted “daily headaches”
requiring twice daily Ibuprofen for “a few months.”65
On February 24, 2016, Claimant presented to Dr. Penn for “ongoing
migraine since last night,” noting that the pain escalates to 8–10/10 in minutes.66 	She
reported daily headaches for at least 2–3 months, with “associated sensitivity to light and
sound.”67 	Dr. 	Penn 	recommended 	Excedrin 	Migraine, 	and 	suggested 	she 	contact
Dr. Ellenson at Alaska Neurology.68 She was due for a Cervical MRI with her pain doctor
for evaluation of cervical spine stenosis. An occipital nerve block, and a cervical branch
block, were scheduled for March.69 Dr. Penn assessed chronic migraines, and scheduled
a follow-up in two weeks.
In March 2016, Claimant returned to PFMC “for chronic headache,” noting
that she has tried various migraine medications with no relief.70 She expressed a desire to
decrease her pain medication regimen, as it was “not providing enough benefit at this
point.”71 	Chelsey 	Jacobs, 	PA-C, 	assessed 	“chronic 	intractable 	[hard 	to 	control]
64 Tr. 1936.
65 Tr. 2081.
66 Tr. 2083. Dr. Penn and Dr. Shanley were both providers at Providence Family Medicine Center
(PFMC).67 Tr. 2083.
68 Tr. 1949.
69 Tr. 2083.
70 Tr. 2085.
71 Tr. 2086.
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headache,” and recommended follow-up with neurology and tapering pain medication.72
An ongoing relationship with Algone Pain Clinic was noted.73
By April 2016, Claimant noted “no improvement with sleep or headaches,”
and PA Jacobs increased her Amitriptyline.74 	Claimant was seen at Alaska Neurology
Center regarding her headache pain, which she reported last anywhere from 2 hours to
three days at a time, with photophobia and occasional nausea.75 	Dr. Ellenson ordered a
brain MRI “to rule out a structural lesion given the new migraine problem.”76 This MRI
came back “normal.”77
In July 2016, Claimant was still reporting daily headaches. She noted that
Topamax worked well for a few weeks, but then the headache returned, with sensitivity to
light and sound.78 	Cheryl Fitzgerald, PA-C, again noted chronic headaches in August
2016, and recommended “Iovera [localized nerve block] of the greater occipital nerves
when it arrives. Short relief with ONB [occipital nerve block].”79 Claimant followed up
with Dr. Ellenson at Alaska Neurology, who noted that a trial of Topiramate had improved
Claimant’s headaches for a period of time, with blurred vision and diplopia (double
vision).80 	Claimant did not refill the prescription, because the migraines returned while
72 Tr. 2088.
73 Tr. 2088. Records from Algone Pain Clinic addressed monthly pain management throughout
the administrative record.
74 Tr. 2089.
75 Tr. 2101.
76 Tr. 2104.
77 Tr. 2109.
78 Tr. 2089–90.
79 Tr. 2031.
80 Tr. 2106.
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she was still taking it. Dr. Ellenson recommended she try it again, and “if this is not helpful
then a trial Botox would be appropriate.”81 	In late August, Claimant was evaluated by
Neuropsychologist Russell Cherry, PsyD, who opined that she had been prescribed “far
too 	many 	sedating 	medications,” 	and 	made 	other 	recommendations 	unrelated 	to
headaches.82
In December 2016, Dr. Ellenson again saw Claimant regarding “migraine
headaches which she has been experiencing for the past year.”83 	Claimant did not find
relief from Topiramate, morphine, or Excedrin migraine.84 “She continues to have a frontal
daily migraine headache that last at least four hours associated with photophonophobia.”85
In April 2017, Claimant returned to Dr. Ellenson for “chronic daily migraine
headaches.”86 	Her headaches were somewhat improved on propranolol, as she was not
having them every day.87 	But by August her headaches had returned.88 	In December
2017 she reported headaches “half the days of the month” that “last all day” despite the
propranolol, and are accompanied by vomiting and photophonophobia.89 	Dr. Ellenson
increased the propranolol dosage and scheduled Botox therapy.90
81 Tr. 2109.
82 Tr. 2111–27.
83 Tr. 3220.
84 Tr. 3220.
85 Tr. 3223.
86 Tr. 3225.
87 Tr. 3225–28.
88 Tr. 2764.
89 Tr. 3230–33.
90 Tr. 3234.
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The record reflects Botox injections to treat migraine headaches, in addition
to propranolol, in January, April, and July 2018. 	She continued to report headaches
“over 15 days per month” in January.91 Finding some relief, she received additional Botox
in April,92 but found it less effective.93 	A third Botox treatment was administered in
July.94 Finding decreasing relief with each treatment, she took “a break off Botox,” during
which time her headaches worsened, so she returned for another treatment in May 2019.95
This is where the medical records end with respect to headaches, and the ALJ held a hearing
four months later.96 	The ALJ took no new testimony from Claimant, relying instead on
Claimant’s transcribed testimony from prior hearings.97
4. 	Errors by the ALJ
The foregoing summary of Claimant’s history of chronic headache treatment
stands in sharp contrast to the ALJ’s conclusion that “claimant eventually got good relief
with propranolol starting in 2017 and Botox in April 2018.”98 Moreover, the records fulfill
the requirements of SSR 19-4p as early as December 15, 2015, when, despite continued
use of prescribed opioids for pain, she reported daily headaches “turning into migraines,”
and expressed desire for alternative treatment options, with her provider noting nausea as
a side-effect of the opioids.99 	From December 2015 forward, the records contain
91 Tr. 3242.
92 Tr. 3259.
93 Tr. 3264, 3183.
94 Tr. 3267.
95 Tr. 3269.
96 Tr. 2194.
97 This was, itself, error in light of the new guidance from SSR 19-4p since the prior hearing.
98 Tr. 2157
99 Tr. 2811.
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consistent, detailed descriptions from multiple medical providers of Claimant’s “typical
headache event” and associated phenomena (lasting anywhere from hours to days,
accompanied by nausea and vomiting with sensitivity to light and sound); the frequency of
headache events (daily, occurring “half the month”); adherence to prescribed treatment (no
physician suggested Claimant was not complying with the numerous prescribed headache
remedies); side effects of treatment (nausea from opioids; blurred and double vision with
Topiramate); and limitations in functioning that may be associated with the primary
headache disorder or effects of its treatment (which seem obvious, given daily headaches
with 	nausea, 	vomiting, 	and 	sensitivity 	to 	light 	and 	sound.).100 	Significantly, 	the
Commissioner’s brief does not address Listing 11.02 or SSR 19-4p.101
5. 	Nature of remand
The parties agree that the ALJ has failed to provide legally sufficient reasons
for rejecting evidence, but disagree as to the appropriate remedy. While Claimant seeks a
remand for a finding of disability and award of benefits, the Commissioner contends that
further proceedings are warranted.102
The Ninth Circuit has emphasized that “the decision on disability rests with
the ALJ and the Commissioner of the Social Security Administration in the first instance,
not with a district court.”103 	“Where there is conflicting evidence, and not all essential
100 SSR 19-4p at 4 (emphasis added).
101 Docket 22.
102 Id. at 2.
103 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) citing Marsh v. Colvin, 792 F.3d
1170, 1173 (9th Cir.2015).
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factual issues have been resolved, a remand for an award of benefits is inappropriate.”104
Further proceedings generally are useful where the record has not been fully developed,
there is a need to resolve conflicts and ambiguities, or the presentation of further evidence
“may well prove enlightening.”105 The Commissioner argues that “since unresolved issues
remain, it is not known what impact a consideration of the complete record would have on
a disability determination and the record cannot be said to have been fully developed,
making a finding of disability at this time hasty.”106 The Court disagrees.
If an impairment is the equivalent of one of the listed impairments and meets
the duration requirement, a claimant is conclusively presumed to be disabled, because
“[c]onditions contained in the ‘Listing of Impairments’ are considered so severe that they
are irrebuttably presumed disabling, without any specific finding as to the claimant’s ability
to perform his past relevant work or any other jobs.”107 A “finding of equivalence must be
based on medical evidence only.”108 	The regulations instruct that “medical equivalence
[is] based on all evidence in your case record about your impairment(s),” including
symptoms, signs, and laboratory findings.109 	If any “severe” impairment equals a listed
impairment, the claimant must be found to be disabled.
104 Brown-Hunter, 806 F.3d at 496, citing Treichler, 775 F.3d at 1101.
105 Treichler, 775 F.3d at 1101 (citations omitted).
106 Docket 22 at 8.
107 Lester v. Chater, 81 F.3d 821, 828 (9th Cir. 1995), as amended (Apr. 9, 1996); see also 20
C.F.R. § 404.1520(d) (“If you have an impairment(s) which meets the duration requirement and is listed in
appendix 1 or is equal to a listed impairment(s), we will find you disabled without considering your age,
education, and work experience.”).
108 Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001), citing 20 C.F.R. § 404.1529(d)(3) (emphasis
added). 109 “[W]e will consider medical equivalence based on all evidence in your case record about your
impairment(s) and its effects on you that is relevant to this finding. In considering whether your symptoms,
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The ALJ must proceed to the final two steps in the sequential evaluation
process only if a decision as to whether a “severe” impairment corresponds to a listed
impairment cannot be made on medical factors alone.110 	Although it is the claimant’s
burden at step three, “[a]n ALJ must evaluate the relevant evidence before concluding that
a claimant’s impairments do not meet or equal a listed impairment.”111
In this case, the ALJ’s failure to consider the medical records before her does
not warrant yet another remand when the records speak for themselves. 	The ALJ
considered 	medical 	equivalency, 	and 	acknowledged 	the 	potential 	applicability 	of
Listing 11.02, but then failed to acknowledge the medical evidence present in the record.
As discussed above, the records clearly reflect headaches “occurring at least once a week
for at least 3 consecutive months despite adherence to prescribed treatment,” thus satisfying
Listing 11.02B as applicable via SSR 19-4p.
This Court should credit evidence that was rejected during the administrative
process if the ALJ failed to provide legally sufficient reasons for rejecting the evidence.112
The Court can remand for an immediate award of benefits if (1) “there are no outstanding
issues that must be resolved before a determination of disability can be made;” and (2) “it
signs, and laboratory findings are medically equal to the symptoms, signs, and laboratory findings of a
listed impairment, we will look to see whether your symptoms, signs, and laboratory findings are at least
equal in severity to the listed criteria. However, we will not substitute your allegations of pain or other
symptoms for a missing or deficient sign or laboratory finding to raise the severity of your impairment(s)
to that of a listed impairment. If the symptoms, signs, and laboratory findings of your impairment(s) are
equivalent in severity to those of a listed impairment, we will find you disabled. If it does not, we will
consider the impact of your symptoms on your residual functional capacity.” 20 C.F.R. § 404.1529(d)(3).
110 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1194 (9th Cir. 2004).
111 Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001).
112 Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004); Treichler, 775 F.3d at 1100–02.
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is clear from the record that the ALJ would be required to find the claimant disabled were
such evidence credited.”113 Such is the case here.
The Court has reviewed the administrative record and finds that it is
adequately developed as to Claimant’s primary headache syndrome. Moreover, the Court
finds that the record, taken as a whole, leaves “not the slightest uncertainty” that Claimant
met the listed impairment 11.02B as of December 15, 2015, when Claimant began
frequently returning to her physicians complaining of daily headaches with significant
associated symptoms (vomiting and sensitivity to light and sound), and for which her
treating providers continually prescribed new treatments with which Claimant was
compliant.
IV. 	CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Claimant’s
motion at Docket 17 is GRANTED IN PART, and this matter is REMANDED for
payment of benefits effective December 15, 2015. 	Nothing about this order precludes
Claimant from exercising her right to return to the ALJ for consideration of an earlier onset
date, in light of the agreement between the parties that the ALJ committed errors with
respect to Claimant’s other alleged impairments.
IT IS SO ORDERED this 11th day of April, 2022, at Anchorage, Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
113 Benecke, 379 F.3d at 593.
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