Case Name in Social Security Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
AARON M.1,
Plaintiff,
v.
ANDREW SAUL,
Commissioner of Social Security,
Defendant.
Case No. 4:20-cv-00009-SLG
DECISION AND ORDER
On or about October 22, 2017, Aaron M. (“Plaintiff”) filed an application for
disability insurance benefits (“DIB”) under Title II of the Social Security Act (“the Act”),2
alleging disability beginning July 2, 2015.3 Plaintiff has exhausted his administrative
remedies and filed a Complaint seeking relief from this Court.4 Plaintiff filed his opening
1 Plaintiff’s name is partially redacted in compliance with Federal Rule of Civil Procedure
5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case
Management of the Judicial Conference of the United States. See Memorandum, Committee on
Court Administration and Case Management of the Judicial Conference of the United States (May
1, 2018), available https://www.uscourts.gov/sites/default/files/18-cv-l-suggestion_cacm_0.pdf.
2 Title II of the Social Security Act provides benefits to disabled individuals who are insured by
virtue of working and paying Federal Insurance Contributions Act (FICA) taxes for a certain
amount of time. Title XVI of the Social Security Act is a needs-based program funded by general
tax revenues designed to help disabled individuals who have low or no income. Plaintiff brought
claims under Title II only. Although each program is governed by a separate set of regulations,
the regulations governing disability determinations are substantially the same for both programs.
Compare 20 C.F.R. §§ 404.1501–1599 (governing disability determinations under Title II) with 20
C.F.R. §§ 416.901–999d (governing disability determinations under Title XVI). For convenience,
the Court cites the regulations governing disability determinations under both titles.
3 Administrative Record (“A.R.”) 13, 218. The application cites October 27, 2017 as the application
date. A.R. 218. Plaintiff amended his application, informing the SSA that he received workers’
compensation, public disability, or black lung benefits until March 1, 2017. A.R. 220–21.
4 Docket 1 (Plaintiff’s Compl.).
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brief on August 26, 2020, seeking a remand for an award of benefits or alternatively,
further proceedings.5 The Commissioner filed a brief asserting that the Court should
affirm the ALJ’s decision.6 Plaintiff filed his reply on September 28, 2020.7 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 Commissioner of Social
Security.8 For the reasons set forth below, Plaintiff’s request for relief will be denied.
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.9
“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.”10 Such evidence must be “more than a mere scintilla,” but may be “less than
a preponderance.”11 In reviewing the agency’s determination, the Court considers the
evidence in its entirety, weighing both the evidence that supports and that which detracts
5 Dockets 12, 13 (Plaintiff’s Br.).
6 Docket 14 (Defendant’s Br.).
7 Docket 15 (Reply).
8 42 U.S.C. § 405(g).
9 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)).
10 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).
11 Perales, 402 U.S. at 401; Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975)
(per curiam).
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from the administrative law judge (“ALJ”)’s conclusion.12 If the evidence is susceptible to
more than one rational interpretation, the ALJ’s conclusion must be upheld.13 A reviewing
court may only consider the reasons provided by the ALJ in the disability determination
and “may not affirm the ALJ on a ground upon which [s]he did not rely.”14 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.”15 Finally, the ALJ has a “special duty to fully and fairly develop
the record and to assure that the claimant’s interests are considered.”16 In particular, the
Ninth Circuit has found that the ALJ’s duty to develop the record increases when the
claimant is unrepresented or is mentally ill and thus unable to protect his own interests.17
II. DETERMINING DISABILITY
The Social Security Act (the Act) provides for the payment of disability insurance
to individuals who have contributed to the Social Security program and who suffer from a
12 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
13 Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citing Rhinehart v. Finch, 438 F.2d 920,
921 (9th Cir. 1971)).
14 Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).
15 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations
omitted).
16 Smolen v. Chater, 80 F.3d 1273,1288 (9th Cir. 1996) (superseded in part by statute on other
grounds, § 404.1529) (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).
17 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001).
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physical or mental disability.18 In addition, Supplemental Security Income (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.19 Disability is defined in the Act as follows:
[I]nability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months.20
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.21
The Commissioner has established a five-step process for determining disability
within the meaning of the Act.22 A claimant bears the burden of proof at steps one through
four in order to make a prima facie showing of disability.23 If a claimant establishes a
18 42 U.S.C. § 423(a).
19 42 U.S.C. § 1381a.
20 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
21 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
22 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
23 Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1096 n.1 (9th Cir. 2014) (quoting Hoopai
v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007)); see also Tackett v. Apfel, 180 F.3d 1094, 1098
(9th Cir. 1999).
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prima facie case, the burden of proof then shifts to the agency at step five.24 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.”25 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.”26 The ALJ determined that Plaintiff engaged in substantial gainful activity from
July 2, 2015, the alleged onset date, through October 28, 2017. However, the ALJ noted
that there was “a continuous 12-month period during which [Plaintiff] did not engage in
substantial gainful activity” and addressed the period Plaintiff did not engage in
substantial gainful activity.27
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.28 The ALJ determined that Plaintiff had the following
severe impairments: status-post right wrist surgeries; lumbar spine spondylosis, status-
post lumbar surgery; right hip impingement with labrum tear, status-post right hip
24 Treichler, 775 F.3d at 1096 n.1; Tackett, 180 F.3d at 1098 (emphasis in original).
25 Tackett, 180 F.3d at 1101.
26 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
27 A.R. 15–16.
28 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
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arthroplasty; small right shoulder labral tear; right knee chondromalacia; left shoulder
labral tear; and moderate acromioclavicular joint degenerative disease with
impingement.29
Step 3. Determine whether the impairment or combination of impairments meet(s)
or equal(s) the severity of any of the listed impairments found in 20 C.F.R. pt. 404, subpt.
P, app.1, precluding substantial gainful activity. If the impairment(s) is(are) the equivalent
of any of the listed impairments, and meet(s) the duration requirement, the claimant is
conclusively presumed to be disabled. If not, the evaluation goes on to the fourth
step.30 The ALJ determined that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1.31
Before proceeding to step four, a claimant’s residual functional capacity (“RFC”) is
assessed. Once determined, the RFC is used at both step four and step five. An RFC
assessment is a determination of what a claimant is able to do on a sustained basis
despite the limitations from his impairments, including impairments that are not severe.32
The ALJ determined that Plaintiff had the residual functional capacity to perform light work
except for the following limitations: standing or walking for a total of three hours and sitting
for a total of seven hours in an eight-hour workday with normal breaks; frequent right
29 A.R. 16.
30 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
31 A.R. 17.
32 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
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pushing/pulling; occasional climbing of ramps or stairs; occasional stooping, kneeling,
crouching, and crawling; no climbing of ladders, ropes, and scaffolds; frequent balancing;
frequent reaching overhead on the right; avoiding all unprotected heights; and avoiding
concentrated exposure to operational control of moving machinery and hazardous
machinery.33
Step 4. Determine whether the claimant is capable of performing past relevant
work. At this point, the analysis considers whether past relevant work requires the
performance of work-related activities that are precluded by the claimant’s RFC. If the
claimant can still do his past relevant work, the claimant is deemed not to be disabled.34
Otherwise, the evaluation process moves to the fifth and final step. The ALJ determined
that Plaintiff was capable of performing his past relevant work as a shipping and receiving
supervisor and a basics logistics officer.35
Step 5. Determine whether the claimant is able to perform other work in the
national economy in view of his age, education, and work experience, and in light of the
RFC. If so, the claimant is not disabled. If not, the claimant is considered disabled.36 The
ALJ determined that although Plaintiff was capable of performing past relevant work,
33 A.R. 17.
34 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
35 A.R. 22.
36 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
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other jobs existed in the national economy that he was also able to perform, including
assembler, ticket taker, and parking lot attendant.37
The ALJ concluded that Plaintiff was not disabled within the meaning of the Social
Security Act at any time from July 2, 2015, through the date of the ALJ’s decision.38
III. PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff was born in 1978.39 Although Plaintiff alleged an onset date of July 2,
2015, Plaintiff reported working until October 28, 2017.40 He reported last working in the
parts and service department of a construction machinery business. In the past, he
reported working as a logistics advisor and shipping and receiving supervisor for
government contractors, after serving in the United States Army.41 On or about April 12,
2018, the Social Security Administration (“SSA”) initially determined that Plaintiff was not
disabled under the applicable rules.42 On May 7, 2019, two medical examiners first
testified at a hearing before ALJ Cecelia LaCara. Plaintiff then testified, with
representation, at the hearing.43 The ALJ issued an unfavorable ruling on July 2, 2019.44
37 A.R. 23–24.
38 A.R. 24.
39 A.R. 218.
40 A.R. 15–16, 231. The ALJ determined that Plaintiff engaged in substantial gainful activity from
July 2, 2015 through October 28, 2017. The ALJ noted, “[a]lthough the [Plaintiff] reported that his
work was subsidized by his employer, the evidence of record does not support such.” A.R. 16.
41 A.R. 60–66, 231–36.
42 A.R. 96.
43 A.R. 58–73.
44 A.R. 10–24.
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The Appeals Council denied Plaintiff’s request for review on January 24, 2020.45 On
March 13, 2020, Plaintiff filed his Complaint; he is represented by counsel in this appeal.46
Medical Records and Medical Opinion Evidence
The Court’s summary of the medical evidence focuses on the time period after
October 28, 2017.47 However, the following are the relevant records before October 28,
2017:48
On or about July 17, 2015, Plaintiff saw Matthew Raymond, D.O., at Fairbanks
Urgent Care, for a right wrist injury. Plaintiff reported injuring his right wrist on July 2,
2015 at work, while lifting a 60-pound piece of steel. Dr. Raymond limited Plaintiff to lifting
no more than 5 pounds and recommended using a splint at work.49 On July 27, 2015, Dr.
Raymond recommended physical therapy for two weeks.50 On August 11 and August 20,
2015, Dr. Raymond opined that Plaintiff could return to work without restrictions.51
On August 19, 2015, Plaintiff saw Jedidiah Malan, M.D., for a right wrist MR
arthrogram. Some tearing of the wrist ligaments was noted.52
45 A.R. 1–5.
46 Docket 1.
47 Plaintiff performed substantial gainful activity from July 2, 2015 to October 28, 2017. A.R. 15–
16.
48 The Court’s record contains duplicates of certain medical records. Whenever possible, the
Court cites to the first record number.
49 A.R. 581, 586.
50 A.R. 588.
51 A.R. 598, 605.
52 A.R. 607–08.
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On October 19, 2015, Plaintiff underwent right wrist arthroscopy, arthroscopic
debridement of central triangular fibrocartilage tear, and an assisted triangular
fibrocartilage repair, and a partial synovectomy of the right wrist.53 Post-operatively, Dr.
Wagner opined that Plaintiff was “totally incapacitated” and would be re-evaluated on
November 3, 2015.54
From approximately November 25, 2015 through February 4, 2016, Plaintiff
participated in physical therapy sessions for right wrist pain.55 On February 4, 2016,
Plaintiff reported being “cleared for light duty at work including occasional lifting up to 16
pounds.”56
On March 25, 2016, Plaintiff followed up with Dr. Wagner. He reported that he was
making progress, but that his wrist did flare up at times. Post-operatively, Dr. Wagner
opined that Plaintiff would be released for full duty work on or about May 1, 2016.57
On May 21, 2016, Plaintiff saw Eric Hofmeister, M.D., for an independent hand
specialist examination. Dr. Hofmeister opined that a right wrist radial carpal steroid
injection was an appropriate treatment and that Plaintiff would reach medical stability in
two months. He recommended Plaintiff wear a wrist brace “when performing heavy
activities.”58
53 A.R. 636, 663–64.
54 A.R. 662.
55 A.R. 616–17, 619, 621–32.
56 A.R. 631.
57 A.R. 879.
58 A.R. 633–40, 649–55.
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On June 30, 2016, Plaintiff initiated care with Michael McNamara, M.D., at Alaska
Hand-Elbow-Shoulder Surgical Specialists. Dr. McNamara recommended nerve
conduction and velocity studies of the hand and discussed possible surgery.59 On the
same date, Plaintiff had an MR arthrogram of the right wrist. It showed an abnormally
increased scapholunate distance and a torn ligament; an intact lunotriquetral ligament;
an avulsion of the TFCC from the radial attachment site; an old avulsion of the ulnar
styloid with nonunion or fibrous union; no acute fractures; no aseptic necrosis; and a
marked radiocarpal joint space narrowing, with loss of cartilage at the articulation of the
radius with the ulnar bone.60
On July 18, 2016, Plaintiff saw James Foelsch, M.D., for electrophysiology for right
hand numbness. Dr. Foelsch noted that Plaintiff’s nerve conduction studies of the right
upper extremity were normal.61
On August 31, 2016, Plaintiff underwent right wrist surgery.62 Dr. McNamara
opined that Plaintiff would be unable to return to work for two weeks.63
On September 12, 2016, Dr. McNamara released Plaintiff to light and limited duty
work.64
59 A.R. 694–95.
60 A.R. 677.
61 A.R. 747.
62 A.R. 705–06.
63 A.R. 669.
64 A.R. 670.
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On October 3, 2016, Plaintiff saw Robert Thomas, PA-C, at Alaska Hand-Elbow-
Shoulder Surgical Specialists, for a cast change. Plaintiff reported having “some issues
with work,” as his workplace wanted Plaintiff to begin doing “some lifting, pulling and
pushing.” The x-ray showed good alignment and position of the surgical hardware.65 PA
Thomas stated Plaintiff would be unable to return to work for approximately eight weeks.66
From approximately September 27, 2016 through October 17, 2016, Plaintiff
underwent chiropractic adjustments at Fairbanks Family Wellness. He reported lower
back, neck, and right upper arm pain.67
On October 25, 2016, Plaintiff followed up with Michael McNamara, M.D., at Alaska
Hand-Elbow-Shoulder Surgical Specialists. He reported having numbness and loss of
sensation in the thumb and tips of his fingers and swelling. On physical examination, Dr.
McNamara observed full range of motion of the digits and good right wrist position. He
noted that Plaintiff was off work for eight weeks “because of the heavy requirements of
his job.”68
From approximately October 27, 2016 to December 19, 2016, Plaintiff participated
in an occupational therapy program for his wrist. At the end of the program, the
occupational therapist requested a medical recommendation. She opined that Plaintiff
was “not progressing due to pain.”69
65 A.R. 390–92.
66 A.R. 671.
67 A.R. 299–304, 531–32.
68 A.R. 394–96.
69 A.R. 681–82.
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On December 12, 2016, Plaintiff saw Peter Jiang, M.D., at Fairbanks Memorial
Hospital. He reported low back pain. Dr. Jiang assessed Plaintiff with “lumbar
degenerative disk disease with herniation, right paracentrally L5-S1 neuroforaminal
narrowing, possibly due to lateral foraminal disk protrusion.” On physical examination,
Plaintiff had adequate range of motion on flexion, extension, and rotation in the cervical
spine area; a symmetrical, 2+ deep tendon reflex in the bilateral upper extremities,
patellar, and Achilles; 5/5 motor strength testing of the upper and lower extremities;
normal walking; and “no significant antalgic gait.” Dr. Jiang performed a right S1
transforaminal epidural steroid injection under fluoroscopy.70
From approximately December 19, 2016 to January 30, 2017, Plaintiff participated
in an occupational therapy program for his right wrist. The occupational therapist
requested a physician’s reassessment. She noted, “we have not been able to progress
resistive ex[ercises]/use due to pain over S-L interval.”71
On December 20, 2016, Plaintiff followed up with Dr. McNamara. Dr. McNamara
recommended keeping Plaintiff out of work for an additional eight weeks, except for
administrative work only.72
70 A.R. 316–17.
71 A.R. 684–85.
72 A.R. 398–400.
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On January 4, 2017, Dr. McNamara completed a questionnaire associated with
Plaintiff’s workman’s compensation claim. He opined that Plaintiff could be released to
light duty administrative work only.73
On February 2, 2017, Plaintiff followed up with Dr. McNamara. He reported
wearing a brace on his wrist, but that the pain and “clicking in the wrist” had worsened.
He also reported mild numbness in the wrist and hand. The x-ray of Plaintiff’s wrist
showed “the Osteomed screw across the scapholunate, in good position on AP, oblique
and lateral, centered in the lunate”; “a single Osteomed screw through the ulnar styloid
base fracture but there [was] fibrous nonunion, and no evidence of loosening of the wire
or the screw but the wire [was] somewhat prominent”; and “a little bit of cystic change
against the triquetrum from the wire.”74
On March 14, 2017, Plaintiff saw PA Thomas for a preoperative examination for
right wrist hardware removal.75 PA Thomas opined that Plaintiff could be released for
light duty work with no lifting, pushing, or pulling over five pounds.76 On March 15, 2017,
Plaintiff underwent surgery of the right wrist to remove hardware.77
On March 27, 2017, Plaintiff followed up with PA Thomas. He reported that he
was sore after surgery, but that he was “no longer taking any type of pain medication.”
73 A.R. 676.
74 A.R. 724–25.
75 A.R. 726–27.
76 A.R. 673.
77 A.R. 732.
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PA Thomas opined that Plaintiff should not do “any heavy lifting, pulling or pushing for
about 6–8 weeks.”78 PA Thomas also opined that Plaintiff could be released for light duty
work with no lifting, pushing, or pulling over 2–3 pounds.79On March 29, 2017, Plaintiff
followed up with Dr. Jiang. He reported that his last S1 injection resulted in 4 months of
consistent pain relief with no side effects. On physical examination, Plaintiff had adequate
range of motion in the cervical spine; normal deep tendon reflexes in the bilateral upper
extremities, patellar, and Achilles; normal heel to toe walking; and he arose from a seated
position easily with “no significant antalgic gait.” Dr. Jiang performed a right S1
transforaminal epidural steroid injection under fluoroscopy.80
On May 16, 2017, Plaintiff followed up with Dr. McNamara. He reported grinding
and clicking in his right wrist. Dr. McNamara opined that Plaintiff was “doing well” and
recommended continuing “two more months of light duty status, no lifting greater than 15
pounds and minimiz[ing] torqu[e]ing, wear[ing] a splint if he needs to, and we will see him
back in about two months to determine when the screw needs to be removed and across
the scapholunate.”81 The x-ray of Plaintiff’s wrist showed “good alignment of the
scapholunate on the lateral, screw across the middle aspect of the lunate”; “some mild
flexion of the scaphoid on the AP but good position of the screw, and probably a fibrous
78 A.R. 733–34.
79 A.R. 674.
80 A.R. 323–24.
81 A.R. 417–19.
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nonunion of the ulnar styloid with a single Osteomed screw that does not appear to be
loose.”82
On May 30, 2017, Plaintiff saw Steven Rast, PA, , at Anchorage VA Medical
Center. He reported pain that radiated from the neck to the scalp causing recurrent
headaches and lower back pain radiating to the right hip and upper leg. Deborah Fox,
RN, completed an addendum providing MRI results. The MRI showed right central and
foraminal disc protrusion at L5-S1 with displacement of right S1 nerve root.83
On July 18, 2017, Plaintiff followed up with Dr. McNamara. He reported that his
wrist had “not really improved since [his] last visit.” Dr. McNamara assessed Plaintiff with
“right complex wrist.” He opined that Plaintiff may have severe carpal tunnel; symptoms
at his ulnar styloid nonunion; and some intermittent symptoms dorsal radial, unclear
etiology.84 Dr. McNamara ordered a nerve conduction study, the results of which were
normal.85
On July 19, 2017, Plaintiff had an MRI of the cervical spine. The MRI showed a
“[b]road-based central disc protrusion at C6-7 more apparent than prior study, without
significant stenosis” and “multilevel mild disc osteophyte complex at other levels without
significant stenosis.”86 On the same date, Plaintiff had an MRI of the lumbar spine. The
82 A.R. 738.
83 A.R. 479–80.
84 A.R. 421–23, 742.
85 A.R. 747.
86 A.R. 518–19.
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MRI showed a right central and foraminal disc protrusion at L5-S1 with displacement of
the right S1 nerve root.87
On August 1, 2017, Plaintiff followed up with Dr. Jiang for treatment of low back
pain. Dr. Jiang noted that Plaintiff’s recent MRI corroborated his assessment of lumbar
disc herniation at L5-S1 with a right paracentral disk bulge. Plaintiff reported having pain
relief for three months after his last SI injection and otherwise took no significant pain
medications. On physical examination, Dr. Jiang observed adequate range of motion in
the cervical spine; normal deep tendon reflexes in the bilateral upper extremities, patellar,
and Achilles; normal heel to toe walking; and he arose from a seated position easily with
no significant antalgic gait. Dr. Jiang performed a right S1 transforaminal epidural steroid
injection under fluoroscopy.88
On September 25, 2017, Plaintiff saw Ralph Purcell, M.D., an orthopedic/hand
surgeon, for an independent medical examination. Dr. Purcell reviewed Plaintiff’s medical
records to date and conducted an interview and physical examination. Plaintiff reported
burning, numbness, aching, and stabbing pain in the right wrist with a pain level of six out
of ten. He also reported right shoulder pain for a year prior to the examination and
ongoing weakness in his right fourth finger. Plaintiff reported chronic low back pain, status
post spine surgery; chronic neck pain without radicular symptoms; and reported taking
tramadol, 400mg to 800mg of ibuprofen for five out of seven days, and two to three
Tylenol extra strength one to two days per week. He reported that at the time of the
87 A.R. 520–21.
88 A.R. 338–39, 345.
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examination, he was “involved with parts and service and maintenance.” He described
working on excavators for gold mines in the past, using forklifts at work, and that, on
occasion at work, he “has to hand lift as well and that requires lifting, pushing, and pulling
up to 700 pounds at a time.” Plaintiff reported that he had been doing this type of work
since 2011. He also reported that although his job description was changed to “light work”
after his second wrist surgery, he was “doing the same job he was doing when he was on
full duty,” but tried to avoid heavy work and did computer work instead. Dr. Purcell opined
that Plaintiff’s triangular fibrocartilage complex tear had healed; that Plaintiff had “clinical
findings consistent with right carpal tunnel syndrome” and would benefit from a cortisone
injection or surgery. He also opined that Plaintiff’s ulnar nerve neuritis would “likely
resolve over time without additional treatment”; that occupational therapy or surgery was
needed to reach medical stability with regard to the radially based peripheral triangular
fibrocartilage complex tear; and that Plaintiff’s ulnar styloid nonunion did not require any
additional treatment. Dr. Purcell opined that Plaintiff had “no physical restrictions that I
would impose for [Plaintiff] due to his diagnosed conditions other than avoidance of
repetitive or prolonged wrist motion or wrist positioning with regard to the carpal tunnel
syndrome.” He recommended avoiding “very heavy categories of work.”89
On October 5, 2017, Plaintiff saw Audrey Kelley, PA-C, at Anchorage
Neurosurgical Associates, Inc. He reported low back pain, neck pain, and headaches.
Plaintiff also reported having four low back injections, with each subsequent injection
providing relief for a shorter duration. On physical examination, PA Kelley observed
89 A.R. 752–73.
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normal muscle bulk and tone; 5/5 strength in the upper and lower extremities; normal
reflexes, sensory, coordination, gait, and stance; and a positive bilateral straight leg raise
for increased pain on the right. PA Kelley noted that Dr. Kralick believed it was
“reasonable to proceed with a right L5-S1 laminotomy for excision of disc and
decompression of the right S1 nerve root.”90
The following are the relevant records after October 28, 2017:
On November 15, 2017, Plaintiff saw Nancy Cross, M.D., at Integrative Pain
Center of Alaska. He reported chronic pain for the past 16 years. He reported pain in his
head, neck, right shoulder, right wrist, right hand, and lower back and reported that the
pain interfered severely with his daily activities. Dr. Cross observed a decreased range
of motion in the cervical and lumbar spine; normal walking on heels and toes and heel to
toe without difficulties; normal motor strength except in the right due to surgery; normal
reflexes; and decreased sensory in the right hand “due to previous surgery.” Dr. Cross
noted that “[a] screening of somatic concerns reflects a significant somatic preoccupation
while moderate level of depression as indicated on Zung depression inventory” and that
Plaintiff “would benefit from the services of health psychology, to address pain and
somatization, as well as manage depressive symptoms.” Dr. Cross assessed Plaintiff
with neck pain due to C5-6 degeneration and occipital neuralgia. Dr. Cross diagnosed
Plaintiff with displacement of lumbar spine; depressive disorder; lumbosacral
spondylosis; displacement of cervical spine; and cervical syndrome.91
90 A.R. 434–37.
91 A.R. 367–76.
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On December 5, 2017, Plaintiff followed up with Dr. Cross. He reported headache
symptoms. Dr. Cross performed a greater occipital nerve block.92
On January 2, 2018, Plaintiff presented to the emergency room in Kona, Hawaii,
for a right wrist injury. He reported being struck by a wave attempting to break a fall with
his hand. The attending physician opined that Plaintiff had a soft tissue injury to the wrist
with possible loosening of surgical hardware.93
On January 9, 2018, Plaintiff followed up with PA Thomas. He reported reinjuring
his right wrist while in Hawaii. PA Thomas assessed Plaintiff with right wrist pain with a
“possible new injury to the scapholunate ligament and probable right sided cervical
radiculopathy.” Plaintiff reported that he had been scheduled for surgery in November
2017, but “because he was controverted by Worker’s Compensation it was canceled.”
He reported that he was covered by the VA and could move forward with right wrist
surgery. The x-ray of Plaintiff’s right wrist showed an established nonunion but no
loosening of the screw.94 On the same date, Plaintiff saw Jennifer Hermanson, PA-C, at
Anchorage Neurosurgical Associates, Inc. Plaintiff reported low back pain into his right
hip/groin and down the posterior thigh to the knee. He reported right leg weakness due
to pain; occasional numbness and tingling throughout the right leg; and muscle spasms
in his low back. On physical examination, Plaintiff had 5/5 strength in the upper and lower
extremities; displayed diminished sensation to light touch throughout the entire left lower
92 A.R. 377–80.
93 A.R. 382–87.
94 A.R. 425–27.
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extremity; had a normal gait; was able to stand without difficulty; and could heel-toe-walk
without difficulty.95
On January 10, 2018, Plaintiff underwent a right L5-S1 laminotomy, medial
facetectomy, disc excision, and nerve root decompression.96
On February 8, 2018, Plaintiff followed up with Dr. McNamara. He reported that
his right wrist still bothered him with mainly ulnar soreness after his fall in January 2018,
but that swelling had subsided and the wrist felt stronger. Dr. McNamara noted that
Plaintiff’s wrist nerve studies were “completely normal” and reported the numbness and
tingling in his fingers was resolving. Dr. McNamara assessed Plaintiff with left upper
extremity wrist pain; mild widening of the scapholunate; and improving, nonoperative
carpal tunnel syndrome.97
On February 20, 2018, Plaintiff saw Kacie Tempel, PA-C, at Anchorage
Neurosurgical Associates, Inc., for follow up after undergoing a right L5-S1 laminotomy
on January 10, 2018. He reported lower back and neck pain as well as “nerve pain”
focused in his right hip and buttock. In addition, he reported numbness, muscle spasm,
vision changes, headaches, and dizziness. On physical examination, Plaintiff had 5/5
muscle strength in the upper and lower extremities; a normal gait, stance, and ability to
stand without difficulty; no limitations in range of motion; paraspinal muscle spasms in the
95 A.R. 431–33.
96 A.R. 494–95.
97 A.R. 428–30.
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neck; no tenderness to palpation of the cervical or lumbar spine; and intact sensation. PA
Tempel recommended physical therapy to treat his lower back pain.98
On March 14, 2018, Plaintiff followed up with Dr. Jiang. He reported that the
previous cervical epidural injections resulted in two months of relief from his cervical spine
symptoms. He reported some back and groin pain after laminectomy surgery at L5-S1.
He also reported that the recent occipital nerve block “only probably helped for a couple
of weeks.” Dr. Jiang assessed Plaintiff with cervical degenerative disk disease, especially
bilobular broad based bulging disk at C6-C7. Dr. Jiang recommended an epidural steroid
injection, but Plaintiff preferred resuming tramadol and a Medrol pack. Dr. Jiang noted
that Plaintiff was on tramadol last year “which was helping with his symptomatology but
somehow his refills ran out and he had no side effects to the three a day dosing.”99
From approximately March 5, 2018 through April 23, 2018, Plaintiff participated in
physical therapy for low back pain and neck pain.100
On March 22, 2018, Plaintiff underwent a sleep study at the Fairbanks Sleep
Center. He was diagnosed with severe obstructive sleep apnea and a CPAP was
recommended.101
On April 25, 2018, Plaintiff had x-rays of the lumbar spine. The x-rays showed
“[n]o significant degenerative change or dynamic instability.”102
98 A.R. 438–441.
99 A.R. 942–43.
100 A.R. 947–991.
101 A.R. 777–80.
102 A.R. 916.
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On May 21, 2018, Plaintiff saw Dr. Jiang. He reported “good relief” from his prior
injection. Dr. Jiang performed a cervical catheter-directed epidural steroid injection under
fluoroscopy.103
On June 5, 2018, Plaintiff followed up with Kacie Tempel, PA-C, at Anchorage
Neurosurgical Associates, Inc. He reported doing well for two weeks after undergoing a
right L5-S1 laminotomy and disc excision on January 10, 2018. He also reported
increased low back and right hip and buttock pain with occasional muscle spasms in his
right leg and low back when standing and sharp, stabbing neck pain radiating into his
shoulders and triceps. On physical examination, PA Tempel observed no tenderness of
the cervical or lumbar spine; paraspinal muscle spasms in the neck with no limitations in
range of motion; 5/5 strength in the upper and lower extremities; decreased sensation
over the right C7; a normal gait; and the ability to stand without difficulty.104
On June 12, 2018, Plaintiff saw Keira Baird, DPT, for a functional capacity
evaluation. DPT Baird found that the “[o]verall test findings, in combination with clinical
observations, suggest[ed] the presence of variable levels of physical effort on [Plaintiff’s]
behalf.” She remarked, “[d]espite knowing that testing protocols were timed, client
interrupted three different protocols to check his cell phone, go to the bathroom, and get
a cup of coffee.” DPT Baird also noted that Plaintiff “had a tendency to report high levels
of pain that were not consistent with clinical observations,” but that Plaintiff’s “perceived
tolerances when asked about specific body positions or tasks (i.e. standing, sitting, lifting,
103 A.R. 852–54.
104 A.R. 786–87.
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carrying) matched closely to his demonstrated functional tolerances throughout the
evaluation.” In two chronic pain syndrome questionnaires, Plaintiff’s scores indicated that
subjectively, Plaintiff’s low back pain was crippling and his functional pain caused “great
difficulty moving or applying any strength through the painful area.” DPT Baird opined
that Plaintiff demonstrated “a full Sedentary capacity with some abilities into the Light and
Medium range” and “[p]ositional limitations were demonstrated in stooping, squatting, and
sustained neck positioning.” She also opined that Plaintiff “would be best suited for a job
that allow[ed] for frequent postural changes due to his inability to sit for longer than 28
minutes at one time and his inability to stand for longer than 22 minutes at one time during
this evaluation.”105
On June 21, 2018, Plaintiff saw Dr. Jiang for follow up. Plaintiff reported nine days
of relief from his last injection targeting the left C7 nerve root.106
On June 26, 2018, Plaintiff had an MRI of the lumbar spine. The MRI showed mild
lower lumbar L5-S1 laminotomy and microdiscectomy without residual or recurrent disc
herniation and mild lower lumbar spondylosis without high-grade canal or foraminal
stenosis.107 Additionally, Plaintiff had an MRI of the cervical spine. The MRI showed mild
cervical spondylosis without high-grade canal foraminal stenosis.108
105 A.R. 790–813.
106 A.R. 860–61.
107 A.R. 1213–14.
108 A.R. 1215–16.
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On July 26, 2018, Plaintiff followed up with PA Tempel. He reported continuing,
constant aching neck and shoulder pain, worse on his right side; occasional pain and
muscle spasms into his right arm; constant headaches; constant soreness in his low back
with radiation into his right hip and leg; numbness in his lateral right leg and foot; and
occasional burning sensations in his anterior thighs, right worse than left. He also
reported that he did not see improvement in his low back pain with physical therapy. On
physical examination, PA Tempel observed 5/5 strength in the upper and lower
extremities; a normal gait and ability to stand without difficulty; normal reflexes; and intact
sensation to light touch, except over the right C7 dermatome and right lateral thigh and
leg. PA Tempel noted that she reviewed Plaintiff’s recent MRI and that the MRI did not
“show any significant stenosis or degeneration that would require surgical intervention.”
She recommended facet blocks and RFA “as he does have facet arthropathy on the MRI.”
PA Tempel also recommended continuing conservative treatments to address Plaintiff’s
neck pain and low back pain.109
On August 9, 2018, Plaintiff saw PA Rast for follow up status post L5-S1
laminotomy and microdiscectomy without residual or recurrent disc herniation. He
reported continued soreness in his low back with radiation of pain into the right hip and
right leg and numbness in the lateral right leg and foot. He also reported ongoing neck
pain with shoulder pain and muscle spasms in the right arm and left knee and ankle pain.
On physical examination, PA Rast observed a normal gait and no edema in the upper
109 A.R. 1092–94.
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extremities.110 On the same date, Plaintiff had x-rays of the right hip, left hip, left knee,
and left leg. The x-rays showed no osseous abnormality of the left hip and mild left knee
tricompartment osteoarthrosis. The right hip x-ray showed a “[r]ight hip morphology which
may predispose some patients to cam-type femoral acetabular impingement symptoms
and no osseous abnormality.”111
From approximately August 28, 2018 through October 19, 2018, Plaintiff
participated in physical therapy for cervicalgia and LBP arthropathy. On October 19,
2018, Plaintiff “verified that [physical therapy was] not helping” and agreed to a discharge
from physical therapy.112
On September 4, 2018, Plaintiff saw Joel Marquess, M.D. Dr. Marquess
performed a multiplanar MR arthrogram of the right hip utilizing intra-articular gadolinium.
The arthrogram showed evidence of a right hip acetabular labrum tear.113
On September 26, 2018, Plaintiff followed up with Dr. Jiang. Dr. Jiang performed
a right C4-C5 medial branch block.114
On October 3, 2018, Plaintiff saw Sean Timmons, PA-C, at Bach Orthopedic Clinic,
for chronic right hip pain. PA Timmons noted that Plaintiff’s “exam and imaging studies
show evidence of femoral acetabular impingement.” He recommended several treatment
110 A.R. 1250–51.
111 A.R. 1247–49.
112 A.R. 1103–17.
113 A.R. 872–73.
114 A.R. 1171–72.
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options and Plaintiff elected to proceed with an ultrasound guided corticosteroid
injection.115 On the same date, Plaintiff saw PA Rast for left ankle pain. PA Rast opined
that Plaintiff’s left ankle pain was “most likely secondary to change in his routine gait due
to a left hip arthropathy.”116
On October 11, 2018, Plaintiff followed up with Dr. Jiang. Plaintiff reported
experiencing “very minimal relief, 10% to 20%, from the last medial branch block targeting
the C4 to C5 facet joint.” On physical examination, Dr. Jiang observed no facet or
suboccipital tenderness; adequate range of motion on flexion, extension and rotation on
lateral bending of the cervical spine area; symmetrical deep tendon reflexes; 5/5 motor
strength of the upper and lower extremities; normal lordosis of the lumbar spine; negative
straight leg raising; no significant antalgic gait; normal heel to toe walking; and the ability
to rise from the seated position without difficulty. Dr. Jiang assessed Plaintiff with cervical
degenerative disk disease and cervicogenic headache. He recommended a medial
branch block and recommended continuing Plaintiff’s prescriptions for pain.117
On November 10, 2018, Plaintiff had an MRI of the brain. The MRI was normal.118
115 A.R. 863–66.
116 A.R. 1234–35.
117 A.R. 1146–47.
118 A.R. 528.
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On November 13, 2018, Plaintiff followed up PA Timmons. He reported “very good
results” with six days of complete relief of pain in the right hip. On physical examination,
Plaintiff’s strength was 5/5 with no obvious pelvic tilt or gait abnormality.119
On December 19, 2018, Plaintiff followed up with PA Timmons to review his CT
scan of the bony pelvis. The CT scan showed a “[s]mall intravertebral disc herniation
along the L5 inferior endplate” and a small cleft along the superior right acetabulum “which
may represent normal variant versus early degeneration.”120
On January 7, 2019, Plaintiff saw Joseph Lanzi, M.D., at Bach Orthopedic Clinic
for right hip pain. On physical examination, Dr. Lanzi observed positive impingement and
subspine tests; a positive Stinchfield test; 5/5 strength; and no obvious pelvic tilt or gait
abnormality. He assessed Plaintiff with femoral acetabular impingement. Dr. Lanzi noted
discussing surgery and nonsurgical options.121
On January 11, 2019, Plaintiff underwent right hip arthroscopy, cam
decompression, and labral repair.122
On January 22, 2019, Plaintiff saw PA Timmons for follow-up after his right hip
arthroscopy two weeks prior. He reported wearing a brace and using crutches. PA
Timmons noted that Plaintiff had “no other concerns today.”123
119 A.R. 867.
120 A.R. 869–71.
121 A.R. 1479–81, 1585.
122 A.R. 1545.
123 A.R. 1521–22.
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From approximately January 28, 2019 through March 11, 2019, Plaintiff
participated in physical therapy.124
On February 5, 2019, Plaintiff initiated care with Mary Ogden, LCSW, at the
Anchorage VA Medical Center, Behavioral Health Primary Care. He reported having
depression, pain, and mobility issues. LCSW Ogden recommended weekly supportive
therapy sessions.125
On February 6, 2019, Plaintiff saw PA Rast. He reported bilateral shoulder pain
and bilateral knee pain. On physical examination, PA Rast observed a normal gait and
upper extremities without edema, cyanosis, inflammation, or petechiae. PA Rast
prescribed sertraline 50 mg for depression. PA Rast recommended that Plaintiff “have
limited load bearing on [the right] hip until [May 15, 2019]. He is able to do sedentary
work activities.”126 On the same date, Plaintiff presented to the emergency department
at Fairbanks Memorial Hospital for dizziness and syncope prior to arrival. Plaintiff
reported starting Zoloft that day and that he took CBD oil and naproxen regularly for pain.
The attending physician recommended stopping Zoloft until after seeing Plaintiff’s
prescribing physician. The chest CT scan showed no pulmonary embolus. Plaintiff was
discharged several hours after arrival.127
124 A.R. 1439–53, 1459–77.
125 A.R. 1230–31.
126 A.R. 1310–11.
127 A.R. 1364–1417.
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On February 22, 2019, Plaintiff saw PA Timmons at Bach Orthopedic Clinic for
follow up after right hip arthroscopy for femoral acetabular impingement and labral repair.
He reported some pain and that he used a cane to help him walk. PA Timmons opined
that Plaintiff was “doing well overall.”128
On February 28, 2019, Plaintiff had an MRI of the left knee and left shoulder. The
MRI of the left knee showed “[n]o internal derangement.” The MRI of the left shoulder
showed an anterosuperior through posterosuperior labral tear and moderate AC joint
degenerative disease “which might contribute to impingement.”129
On March 1, 2019, Plaintiff had an MRI of the right knee. The MRI showed “[e]arly
tricompartment chondromalacia.” It was otherwise a normal right knee MRI. Plaintiff also
had an MRI of the right shoulder. The MRI showed a “[s]mall SLAP tear at biceps
anchor.”130
On March 15, 2019, Plaintiff saw LCSW Ogden. She diagnosed Plaintiff with
depression. On mental examination, Plaintiff was oriented x3; was alert and oriented and
dressed and groomed appropriately; had a euthymic mood and congruent affect, normal
and coherent thought processes; and fair insight and judgment.131
On March 19, 2019, Plaintiff received a left shoulder injection under fluoroscopy.132
128 A.R. 1454.
129 A.R. 1355–57.
130 A.R. 1327–31.
131 A.R. 1223.
132 A.R. 1302–03.
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On March 27, 2019, PA Rast wrote a letter to the Alaska Court System on Plaintiff’s
behalf. He opined that Plaintiff should be excused from jury duty “due to a medical
condition that would make it difficult to sit for prolonged periods.”133
Function Reports
On February 21, 2018, Plaintiff completed a function report. He reported that
migraines and tinnitus prevented him from concentrating, required him to often wear
sunglasses all day, and prevented him from getting out of bed many days. He also
reported that his back/neck bulge/herniated discs and arthritis prevented him feeling fully
in his hands and impaired writing, bending, lifting, twisting, sitting, walking, reaching, and
standing, “causing nerves to contract and muscles to spasm in the back and neck.”
Plaintiff reported that his right leg was partially numb and painful with an unhealed nerve;
his right wrist injury prevented him from lifting or twisting items weighing eight pounds or
more; his carpal tunnel in both wrists added to his numbness; his medications made it
difficult to find work, but his pain was too great without medication; shoulder injuries
prevented him from lifting heavy items; and a knee injury made walking and standing
difficult for long periods. He reported “extreme pain” affected his sleep and woke him up.
He reported that his wife helped with his personal care and prepared most meals. Plaintiff
reported that he was able to clean the sink and counters and remind his wife to do the
chores, but he did not perform other chores. He reported that his wife took him
“somewhere to walk” three times per week; his wife drove him places or he took cabs
when on medications; he watched his daughter’s basketball games with his wife; and
133 A.R. 1423.
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went shopping with his wife three times per week, using the shopping cart for support.
Plaintiff indicated that he could occasionally carry five pounds, but he would often drop
things; he could not bend or lean; and could only walk five to eight minutes before needing
to rest. He also indicated that he used a cane for walking.134
Hearing Testimony on May 7, 2019
Plaintiff testified on May 7, 2019, with representation, at a hearing before ALJ
Cecelia LaCara. He testified that he lived with his wife and 17-year old daughter; that his
wife drove him a couple times a week; he spent most of his time laying down except for
doctors’ appointments or physical therapy; he had anxiety leaving his home; and that
neuralgia kept him in bed three to five days a week. Plaintiff stated that it was “extremely
painful to sit more than a couple minutes” and he had “excruciating pain going through
my abdomen from the back” every time he had to bend. He indicated that his wife helped
with his personal hygiene; he was unable to use his right hand; and was unable to stand
or walk without his cane. Plaintiff testified that his right shoulder had been out of socket
seven times and that his left side had been “partially out.” He testified that he had tried
several medications, physical therapy, and pain injections, but felt only about eight days
of relief from pain after treatments. He stated that he had syncope about three to four
times a month. He testified that he had previously worked in receiving, distribution, and
warehousing in the military and as a civilian.135
134 A.R. 269–77.
135 A.R. 58–73.
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Colette Valette testified as the psychological expert. She opined that Plaintiff had
“no medically determinable psychological impairments.” She noted one doctor diagnosed
Plaintiff with depression in February 2019, but that “one evaluation doesn’t make a
diagnosis.” She also noted that Plaintiff was cooperative and not taking medications for
depression at the time of the February 2019 evaluation.136
Jack Lebeau, M.D., testified as the medical expert. Dr. Lebeau identified several
impairments, including status-post right wrist surgeries; lumbar spine spondylosis, status-
post lumbar surgery; right hip impingement with labrum tear, status-post right hip
arthroplasty; small right shoulder labral tear; right knee chondromalacia; left shoulder
labral tear and moderate acromioclavicular joint degenerative disease with impingement;
osteoarthropathy of the cervical spine; carpal tunnel syndrome; and obstructive sleep
apnea. Dr. Lebeau opined that Plaintiff did not meet or equal a listing. He called the
ALJ’s attention to the functional evaluation by DPT Baird in June 2018, noting that during
the evaluation, Plaintiff stopped to use the restroom, talked on his cell phone, and
interrupted the examination to get a cup of coffee.137 Dr. Lebeau opined that Plaintiff was
limited to standing half an hour at a time for a total of two hours in the course of the day.
He limited Plaintiff’s walking to 15 minutes at a time for an hour in the course of the day.
Regarding Plaintiff’s walking and standing limitations, Dr. Lebeau stated, “And I think
that’s very generous. I think he certainly could be better than that, but I just don’t have
the evidence.” Dr. Lebeau also opined that Plaintiff’s RFC should include the following
136 A.R. 38–41.
137 See A.R. 790–813.
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limitations: lifting 10 pounds frequently and 20 pounds occasionally; never pushing 50
pounds; reaching overhead on the right frequently and on the left continuously; pushing
and pulling frequently on the right and continuously on the left; frequently balancing;
occasionally stooping, kneeling, crouching, and crawling; continuously operating a motor
vehicle; frequently operating moving mechanical parts; and avoiding unprotected
heights.138
Daniel LaBrass testified as the vocational expert. Based on the ALJ’s first
hypothetical,139 VE LaBrass opined that Plaintiff would be able to perform his past work
as a receiving supervisor and basic logistics officer. He opined that Plaintiff would also
be able to perform other work, including small parts assembler and parking lot attendant.
Based on the ALJ’s second hypothetical,140 VE LaBrass opined that Plaintiff would not be
able to work on a full-time basis because “[t]wo extra breaks for a half hour would be
138 A.R. 42–57.
139 The ALJ’s first hypothetical was as follows:
[L]et’s assume now we have an individual the same age, education, work
experience, as that of the claimant and who is limited to light work. However, this
person can stand or walk for a total of three hours and sit for a total of seven hours
in an eight-hour workday with the normal breaks. This person is limited to frequent
right, push, pull, the occasional climbing of ramps or stairs, the occasional
stooping, kneeling, crouching, and crawling. No climbing of ladders, ropes, or
scaffolds and the frequent balancing. This person is limited to right frequent
overhead reaching. So no work with tools beyond a frequent level. And this person
is to avoid all unprotected heights, and is to avoid concentrated exposure to the
operational control of moving machinery and hazardous machinery. A.R. 76.
140 The ALJ’s second hypothetical was as follows:
[W]hen we’re looking at someone the same age, education, and work experience
as that of the claimant, and has the residual functional capacity that I listed,
however, this person would need to have two extra breaks of 30 minutes each so
that this individual could lie down during breaks. A.R. 78.
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pretty significant extra break taking” and there were no jobs that would accommodate the
need to lie down throughout the day.141
DISCUSSION
Plaintiff seeks reversal and remand “for an outright award of benefits or, in the
alternative, further development and analysis under the fourth sentence of 42 U.S.C. §
405(g).”142 Plaintiff argues the ALJ: 1) “violated agency policy by having the medical
experts testify at the beginning of the administrative hearing” before Plaintiff had testified;
2) erred in her evaluation of Dr. Lebeau’s medical opinion; and 3) erred by rejecting the
functional capacity evaluation results by DPT Baird.
A. Expert Testimony
Plaintiff asserts that SSA policy “makes it absolutely clear that a medical expert
may not testify without the benefit of hearing the claimant’s testimony or a summary of
such testimony.”143 Plaintiff’s claim is based on the Social Security Agency’s internal
policy manual, the Hearings, Appeals, and Litigation Manual (“HALLEX”) § I-2-6-70(b),
which provides in pertinent part:
The [medical expert] may attend the entire hearing, but this is not required. If the
[medical expert] was not present to hear pertinent testimony, such as testimony
regarding the claimant’s current medications or sources and types of treatment,
the ALJ will summarize the testimony for the [medical expert] on the record. If
additional medical evidence is received at the hearing, the ALJ will provide it to the
[medical expert] for review before the [medical expert] testifies.144
141 A.R. 73–80.
142 Docket 13 at 12.
143 Docket 13 at 5.
144 HALLEX I-2-6-70(b)(S.S.A.), available at 1993 WL 751901.
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Citing the promulgation of SSR 13-2p, Plaintiff argues that the HALLEX is now
binding on the ALJ and legally enforceable by the federal courts.145 He alleges that the
ALJ’s reliance on the testimony of experts Dr. Valette and Dr. LeBeau “requires remand
for further proceedings.”146
The Commissioner does not dispute that the medical experts testified prior to the
Plaintiff and therefore, the medical experts were unaware of Plaintiff’s testimony when
they rendered their opinions. Instead, the Commissioner contends that the HALLEX is
not binding on ALJs nor legally enforceable by the district court, as SSR 13-2p pertains
“to evaluating cases involving drug addiction and alcoholism.” The Commissioner also
argues that since the publication of SSR 13-2p, “district courts throughout the Ninth Circuit
have continued to conclude that the HALLEX is not binding on ALJs and are not legally
145 Docket 13 at 3–6. Social Security Ruling (“SSR”) 13-2p, states in pertinent part:
15. How should adjudicators consider Federal district and circuit court decisions
about DAA?
. . .
a. General. We require adjudicators at all levels of administrative review to follow
agency policy, as set out in the Commissioner’s regulations, SSRs, Social
Security Acquiescence Rulings (ARs), and other instructions, such as the
Program Operations Manual System (POMS), Emergency Messages, and the
Hearings, Appeals and Litigation Law manual (HALLEX).
SSR 13-2p, available at 2013 WL 621536, at *15 (Feb. 20, 2013).
146 Docket 13 at 4. Plaintiff notes in his reply brief that the Appeals Council remanded an ALJ’s
decision in another case based in part on the ALJ’s failure to provide the medical examiners who
testified at the hearing the opportunity to hear the claimant’s testimony or otherwise receive a
summary of claimant’s testimony. Docket 15-1 at 3. The Court is not persuaded that an Appeals
Council decision in another case requires automatic remand on the basis of HALLEX I-2-70B.
Testimony, facts, and circumstances are unique to each case. The Court does not know what
occurred at the hearing in the referenced case such as whether drug addiction and/or alcoholism
was at issue in that case.
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enforceable by federal courts.”147 In the alternative, the Commissioner argues that “even
if the Court concludes that it can enforce HALLEX § I-2-6-70(b),” Plaintiff “has not shown
how the order of testimony at his hearing resulted in any harm.”148
In Roberts and Lockwood, the Ninth Circuit held that the HALLEX was not binding
on the ALJs and was not enforceable by the courts.149 Plaintiff argues that since the
promulgation of SSR 13-2p in 2013, the HALLEX is binding on the ALJ as a matter of
SSA policy.150 However, SSR 13-2p is not applicable to the facts of Plaintiff’s case. SSR
13-2p is a policy clarifying how the SSA determines “whether ‘drug addiction and
alcoholism’ (DAA) is material to [SSA’s] determination of disability.”151 As other district
courts in the Ninth Circuit have held, SSR 13-2 is not binding here because Plaintiff is not
claiming the ALJ improperly applied the drug and alcohol dependence factors.152 And,
147 Docket 14 at 3 (citing James v. Saul, No. 19-cv-5881-KS, available at 2020 WL 349165, at *10
(C.D. Cal. June 25, 2020); Ashlock v. Colvin, No. 3:15-cv-05767-DWC, available at 2016 WL
3438490, *5 fn. 2 (W.D. Wash., June 22, 2016)).
148 Docket 14 at 4.
149 See Roberts v. Comm’r of Soc. Sec. Admin., 644 F.3d 931, 933 (9th Cir. 2011) (“HALLEX . . .
does not carry the force of law and is not binding upon the agency. Therefore, we do not review
allegations of non-compliance with its provisions.”) (internal quotations and citations omitted);
Lockwood v. Comm’r Soc. Sec., 616 F.3d 1068, 1072 (9th Cir. 2010) (“HALLEX does not impose
judicially enforceable duties on either the ALJ or this court.”) (internal citations omitted).
150 Docket 13 at 4.
151 SSR 13-2p, available at 2013 WL 603764. See also 20 C.F.R. §402.35(b)(1); Bray v. Comm’r
of Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009) (“SSRs do not carry the ‘force of law,’
but they are binding on ALJs nonetheless.”).
152 Kathleen v. Saul, Civ. No. 3:19-cv-00651-JLS-RNB, 2020 WL 353602, at *8 (S.D. Cal. Jan. 21,
2020) (“As Plaintiff does not claim the ALJ improperly applied the Plaintiff’s drug or alcohol
dependence in his disability determination, SSR 13-2p is not binding.”) (citing Martinez v. Colvin,
Civ. No. 6:14-cv-01703-MC, 2016 WL 270911, at *5 (D. Or. Jan. 20, 2016) (“Plaintiff made no
claims that there were misinterpretations of policies relating to drug addiction and alcoholism in
this case. Therefore, SSR 13-2p is inapplicable here and does not change this Court’s application
of Lockwood.”); Hollen v. Comm'r of Soc. Sec., 2017 WL 1075194, at *8-*9 (S.D. Cal. Mar. 22,
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even after SSR 13-2p was enacted, the Ninth Circuit has continued to hold that the SSA’s
internal policy manuals such as HALLEX do not give rise to legally enforceable rights.153
Moreover, in very recent decisions, district courts in the Ninth Circuit have also continued
to hold that the HALLEX is not binding on ALJs and is not legally enforceable by federal
courts.154
While the Court agrees that medical experts should not present their testimony
before a claimant testifies, to the extent that constituted legal error in this case, it was
harmless.155 Specifically, Plaintiff testified about his symptoms and daily activities, but
did not introduce new medical evidence or sources and types of treatment that were not
already in the record.156 And, as pointed out by the Commissioner, the ALJ’s discounting
of Plaintiff’s symptom statements and limitations was not challenged by Plaintiff.157
In this case, a remand is not warranted based on the ALJ’s alleged error in having
the medical experts testify before Plaintiff testified.
2017) (“[A]s SSR 13-2p does not mandate the ALJ follow HALLEX procedures, the ALJ did not
err by refusing to summarize Plaintiff’s subjective testimony for the ME.”).
153 See, e.g., Wilson v. Berryhill, 732 F. App'x 504, 507 (9th Cir. 2018); Withrow v. Colvin, 672 F.
App'x 748, 749 (9th Cir. 2017); Whitten v. Colvin, 642 F. App'x 710, 713 (9th Cir. 2016); Durden v.
Colvin, 546 F. App'x 690, 690-91 (9th Cir. 2013). A court or litigant may cite to unpublished Ninth
Circuit opinions issued on or after January 1, 2007. U.S. Ct. App. 9th Cir. R. 36-3(b); Fed. R. App.
P. 32.1(a).
154 See Elias v. Comm'r of Soc. Sec. Admin., Civ. No. 18-00200-TUC-RCC, 2019 WL 4296779, at
*3 (D. Ariz. Sept. 11, 2019)(“POMS is not binding on the ALJ.”); James v. Saul, Civ. No. 19-cv-
5881-KS, 2020 WL 3491565, at *10 (C.D. Cal., June 25, 2020) (HALLEX and POMS “are not
binding on ALJs and are not legally enforceable by federal courts.”).
155 McLeod v. Astrue, 640 F.3d 881, 887 (9th Cir. 2011).
156 A.R. 58–73.
157 Docket 14 at 4.
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B. Medical Opinions
Plaintiff asserts that the ALJ failed to adequately consider all of the functional
limitations in Dr. Lebeau’s and DPT Baird’s medical source opinions.158 The
Commissioner contends that Plaintiff failed to show any harmful error in the ALJ’s analysis
of the medical source opinions under the new regulations regarding the evaluation of
medical evidence.159 For claims filed on or after March 27, 2017, new Social Security
Administration regulations apply. In this case, Plaintiff applied for Title II benefits on or
about October 22, 2017.160 The new regulations provide that an ALJ no longer gives “any
specific evidentiary weight . . . to any medical opinion(s) . . .”161 The ALJ is required to
consider, yet is under no obligation to articulate in the decision, how she considered all
factors for all medical opinions and medical findings in the record.162 The factors the ALJ
is to consider include supportability, consistency, relationship with the claimant (length of
treatment, frequency of examinations, purpose of the treatment, extent of the treatment,
and existence of an examination), specialization, and “other factors that tend to support
or contradict a medical opinion or prior administrative medical finding” (including, but not
limited to, “evidence showing a medical source has familiarity with the other evidence in
158 Docket 13 at 6–11.
159 Docket 14 at 4–9.
160 A.R. 13, 218.
161 Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844 (Jan.
18, 2017), available at 2017 WL 168819, at *5867–68; 20 C.F.R. §§ 404.1520c(a), 416.920c(a)
(for claims filed on or after March 27, 2017).
162 20 C.F.R.§ 404.1520c(b)(1); see also Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394-
95 (9th Cir. 1984) (stating that ALJ “need not discuss all evidence presented”).
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the claim or an understanding of our disability program’s policies and evidentiary
requirements”).163 Supportability and consistency are now considered the most important
factors for evaluating persuasiveness164 and the ALJ is required to explain how these
factors were considered.165 Further, when two or more medical opinions or prior
administrative medical findings “about the same issue are both equally well-supported . .
. and consistent with the record . . . but are not exactly the same,” the ALJ must explain
how “the other most persuasive factors” were considered.166
1. Dr. Lebeau
Plaintiff asserts that the ALJ “ignored Dr. Lebeau’s opinion that [Plaintiff] could only
stand for 30 minutes at a time and only walk for 15 minutes at a time.” He also alleges
that, although the ALJ adopted Dr. Lebeau’s opinion that Plaintiff could stand/walk three
hours total per day, the ALJ did not include this additional limitation in the RFC; nor did
163 20 C.F.R. §§ 404.1520c(c)(1)-(5), 416.920c(c)(1)-(5) (for claims filed on or after March 27,
2017).
164 The regulations state, “The factors of supportability . . . and consistency . . . are the most
important factors [the SSA] consider[s] when [the SSA] determine[s] how persuasive [the SSA]
find[s] a medical source’s medical opinions or prior administrative medical findings to be.” 20
C.F.R. § 404.1520c(b)(2) (for claims filed on or after March 27, 2017).
165 C.F.R. § 404.1520c(b)(2) (for claims filed on or after March 27, 2017). Supportability and
consistency are explained as follows in the regulations:
(1) Supportability. The more relevant the objective medical evidence and supporting
explanations presented by a medical source are to support his or her medical opinion(s)
or prior administrative medical finding(s), the more persuasive the medical opinions or
prior administrative medical finding(s) will be.
(2) Consistency. The more consistent a medical opinion(s) or prior administrative medical
finding(s) is with the evidence from other medical sources and nonmedical sources in the
claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s)
will be. 20 C.F.R. §§ 404.1520c(c)(1)-(2), 416.920c(c)(1)-(2).
166 20 C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3) (for claims filed on or after March 27, 2017).
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the ALJ provide this limitation to the vocational expert. Further, Plaintiff alleges that the
ALJ ignored Dr. Lebeau’s opinion regarding postural limitations. Specifically, Plaintiff
notes that Dr. Lebeau initially testified that Plaintiff could stoop, kneel, crouch, and crawl
occasionally, but later Dr. Lebeau testified that Plaintiff could not perform those activities
up to 1/3 of the day. He argues that this error was not harmless as the vocational expert
testified that Plaintiff could perform past relevant light work and other jobs performed at
the light exertional level.167 The Commissioner argues that any failure to include all of the
functional limitations described by Dr. Lebeau was harmless. Specifically, the
Commissioner points out that Plaintiff’s past work as a basic logistics officer was a
sedentary position as generally performed and that Plaintiff could have returned to this
job.168
A court should affirm an ALJ’s determination of a claimant’s RFC “if the ALJ applied
the proper legal standard and his decision is supported by substantial evidence.”169 In
assessing an RFC, the ALJ “must consider limitations and restrictions imposed by all of
an individual’s impairments, even those that are not ‘severe.’”170 It is “proper for an ALJ
to limit a hypothetical to those impairments that are supported by substantial evidence in
the record.”171 But “an RFC that fails to take into account a claimant’s limitations is
167 Docket 13 at 7–9.
168 Docket 14 at 7.
169 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (citing Morgan v. Comm’r of Soc. Sec.
Admin., 169 F.3d 595, 599 (9th Cir. 1999)).
170 See SSR 96-08p, available at 1996 WL 374184 at *5; 20 C.F.R. §§ 404.1545(a)(2),
416.945(a)(2) (“We will consider all of your medically determinable impairments of which we are
aware, including your medically determinable impairments that are not ‘severe.’”).
171 Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001) (citing Magallanes v. Bowen, 881 F.2d
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defective.”172 When posing a hypothetical question to a VE, the ALJ’s “depiction of the
claimant’s disability must be accurate, detailed, and supported by the medical record.”173
And, “hypothetical questions asked of the vocational expert must ‘set out all of the
claimant’s impairments.’”174
a. Walking and Standing Limitation
Here, the ALJ determined Plaintiff could perform “light work” with limitations. The
ALJ incorporated into the hypothetical Dr. Lebeau’s opinion that Plaintiff could stand or
walk for a total of three hours in an eight-hour workday. But the hypothetical did not
include the additional limitations testified to by Dr. Lebeau that Plaintiff would be limited
to standing 30 minutes at a time and walking 15 minutes at a time.175 Instead, the ALJ
noted Dr. Lebeau testified that Plaintiff was likely capable of more than three hours of
standing and walking.176
The new regulations require an ALJ to articulate how she considered the medical
opinions. However, the new regulations specify, “[the ALJ is] not required to articulate
747, 756-57 (9th Cir. 1989) (“The ALJ was free to accept . . . that the claimant’s depression was
mild and would not significantly interfere with the performance of work related activities.”)).
172 Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009).
173 Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999).
174 Lewis v. Apfel, 236 F.3d 503, 517 (9th Cir. 2001) (internal citation omitted).
175 A.R. 17.
176 Dr. Lebeau stated, “So, I’m going to say standing half an hour and two hours in the course of
the day. Walking, 15 minutes, and an hour in the course of the day. And I think that’s very
generous. I think [Plaintiff] certainly could be better than that, but I just don’t have the evidence.”
A.R. 51.
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how [the ALJ] considered each medical opinion or prior administrative medical finding
from one medical source individually.”177
The ALJ cited to objective evidence in the record to support the standing and
walking limitations in the RFC. The ALJ referenced a September 2017 examination, at
which Plaintiff stated that he walked three to four days a week “for a couple of hours.” The
ALJ also noted that Plaintiff reported lifting and pushing at his job, and pulling up to 700
pounds at a time at work since 2011.178 The ALJ also cited to Plaintiff’s physical
examinations in 2018 that showed 5/5 strength in the lower extremities; a normal gait and
stance; and the ability to stand without difficulty.179 And other evidence in the record
supports the ALJ’s RFC: After hip surgery in early 2019, Plaintiff reported wearing a brace
and using crutches, but he had “no other concerns”;180 approximately one month later,
Plaintiff’s provider opined that Plaintiff was “doing well overall” after hip surgery.181
In this case, the ALJ included in the RFC the walking and standing limitations of
the medical providers that she found persuasive and supported by objective evidence in
the record; by extension, these limitations were included in the hypothetical questions
posed to the vocational expert.182 Substantial evidence supports the ALJ’s walking and
standing limitations.
177 20 C.F.R. § 404.1520c(a)–(b)(1) (effective March 27, 2017).
178 A.R. 19; A.R. 756.
179 A.R 19-20; A.R. 432–33, 439, 786, 867, 1093, 1146.
180 A.R. 1522.
181 A.R. 1454.
182 Osenbrock v. Apfel, 240 F.3d 1157, 1163–65 (9th Cir. 2001) (Only limitations supported by
substantial evidence must be incorporated into the RFC and, by extension, the hypothetical
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b. Lifting and Carrying Limitation
Plaintiff also argues that “[t]o say that Plaintiff can lift and carry 10 pounds
frequently (the definition of light work), while standing/walking for 3 hours in an 8 hour
work day, is both internally inconsistent and a direct contradiction of Agency policy.”183
Social Security Ruling (SSR) 83-10 states that light work generally involves standing or
walking off and on for a total of approximately six hours in an eight-hour workday and that
this amount of standing and walking is the primary difference between light and sedentary
work.184 By contrast, the regulations define sedentary jobs as ones that involve sitting,
but also require occasional walking and standing.185 SSR 83-10 further clarifies that “the
total amount of standing and walking involved in sedentary work should not exceed about
two hours of an eight-hour day.”186
Here, the ALJ found Dr. LeBeau’s opinion “very persuasive” that Plaintiff was
capable of lifting 20 pounds occasionally and 10 pounds frequently, which constitutes
question posed to the VE.).
183 Docket 13 at 8.
184 Social Security Ruling 83-10 describes “light” exertional levels as:
[A] job is in [the light] category when it requires as good deal of walking or
standing — the primary difference between sedentary and most light jobs.
. . .
[T]he full range of light work requires standing or walking, off and on, for a total of
approximately 6 hours of an 8-hour workday. Sitting may occur intermittently
during the remaining time. By contrast, to perform the sedentary level of
exertion, “periods of standing or walking should generally total no more than
about 2 hours of an 8-hour workday, and sitting should generally total
approximately 6 hours of an 8-hour workday.” SSR 83-10, available at 1983 WL
31251, at *5.
185 20 C.F.R. § 404.1567(a).
186 SSR 83-10, available at 1983 WL 31251, at *5.
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light work.187 Plaintiff asserts this level of lifting cannot be harmonized with the three hour
walking/standing limitation that places Plaintiff closer to the sedentary exertional level.188
Social Security Ruling 83-12 provides instructions for choosing proper Grid rules
when a claimant’s exertional level falls between two classifications.189 The ALJ should
consult a vocational expert when “the individual’s limitations are somewhere in the
middle.”190 In this case, the VE testified that Plaintiff could perform his past work as a
basics logistics officer (DOT 184.117-050, sedentary, SVP 8) and shipping/receiving
supervisor (DOT 222.137-030, light, SVP 6). The VE specifically noted that based on
Plaintiff’s years in the military and training in college, Plaintiff was still capable of the highly
skilled work involved with the basics logistics officer position.191 The VE also testified
that, in the event the ALJ found that the basics logistics officer and shipping/receiving
supervisor positions were not relevant past work, Plaintiff could perform the light duty jobs
of small parts assembler, ticket taker, and parking lot attendant. The VE testified that all
three of the named light duty jobs would accommodate the three-hour standing/walking
limitation. He added, as actually performed, “[t]hese are [ ] jobs that you could sit or
187 A.R. 21.
188 A.R. 17; see SSR 83-10, at *5.
189 The stated purpose of SSR 83-12 is “[t]o clarify policies applicable in using the numbered table
rules in Appendix 2 of Subpart P (the ‘Grids’) of the regulations as a framework for adjudicating
claims in which an individual has only exertional limitations, and no specific rule applies because
the individual’s residual functional capacity does not coincide with any one of the defined
exertional ranges of work.” VE assistance is advisable when Plaintiff’s exertional limitations are
“somewhere in the middle” of the regulatory criteria. SSR 83-12, available at 1983 WL 31253, at
*3.
190 SSR 83-12(2)(c), at *3.
191 A.R. 74.
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stand, parking lot attendants usually sit in a booth. Ticket takers . . . can sit, take tickets
as well as stand, and small par[t]s assembly can sit or stand, either one.”192
In sum, the ALJ adequately resolved the inconsistency between Plaintiff’s RFC
and the light work exertional category. The ALJ called a vocational expert to clarify the
jobs Plaintiff would be capable of performing with his three-hour walking/standing
limitation, pursuant to SSR 83-12.193 The VE appropriately identified Plaintiff’s past work
and jobs in the national economy that a person with Plaintiff’s limitations could perform.
c. Positional Limitations
The ALJ included stooping, kneeling, crouching, and crawling occasionally in the
RFC.194 Dr. Lebeau testified,
Stoop, kneel, crouch, and crawl, I would say occasionally and hoping that it
would not actually be up to a third of the day. I . . . just don’t know that that
hip could handle that. But it’s not that [Plaintiff] can’t do these activities. . .
It’s just . . . limited.195
“Occasional” is defined as doing an activity from very little up to 1/3 of the time.196
Pursuant to SSR 83-14, “to perform substantially all of the exertional requirements of most
sedentary and light jobs, a person would not need to crouch and would need to stoop
only occasionally.”197 Although Dr. Lebeau’s testimony was somewhat ambiguous
192 A.R. 78.
193 SSR 83-12, available at 1983 WL 31253; see also Moore v. Apfel, 216 F.3d 864, 870–71 (9th
Cir. 2000) (When a claimant falls between two grids, consultation with a VE is appropriate).
194 A.R. 17.
195 A.R. 52.
196 SSR 83-10,
197 SSR 83-14, available at 1983 WL 31254.
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regarding Plaintiff’s postural activities, “[w]here evidence is susceptible of more than one
rational interpretation, it is the ALJ’s conclusion which must be upheld.”198 In this case,
the ALJ’s interpretation of Dr. Lebeau’s testimony as limiting Plaintiff’s stooping, kneeling,
crouching, and crawling activities to the occasional level was reasonable and supported
by substantial evidence. The ALJ summarized the medical records, and noted “numerous
physical exams [that] revealed little or o sign of functional impact” caused by Plaintiff’s
impairments.199 The medical records contain numerous entries at which Plaintiff’s motor
strength in the lower extremities was 5/5; he could rise from a seated position easily; and
stand and walk without difficulty.200 Substantial evidence in the record supports the ALJ’s
postural limitations in the RFC.
d. Harmless Error
Finally, even if the ALJ erred by failing to include the “at a time” standing/walking
limitations, or erroneously failed to limit Plaintiff’s stooping, kneeling, crouching, and
crawling or postural limitations, such errors were harmless in this case.201 Rectifying each
of these alleged errors would not have altered the ALJ’s determination that Plaintiff was
198 Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984).
199 A.R. 19.
200 See e.g., A.R. 316, 318, 323, 338, 432–33, 439, 522, 786, 852, 864, 908, 942, 1011, 1146,
1171–72, 1480, 1528.
201 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008); see also SSR 96-9p, available
at 1996 WL 374185, at *7–8 (“Postural limitations or restrictions related to such activities as
climbing ladders, ropes, or scaffolds, balancing, kneeling, crouching, or crawling would not usually
erode the occupational base for a full range of unskilled sedentary work significantly because
those activities are not usually required in sedentary work” . . . “An ability to stoop occasionally,
i.e., from very little up to one-third of the time, is required in most unskilled sedentary
occupations.”).
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capable of performing sedentary work and returning to his previous job as a logistics
advisor (DOT 184.167–094) at step four of the ALJ’s analysis.202 Further, substantial
evidence supports the ALJ’s finding that Plaintiff was not disabled because other
substantial gainful work consistent with the limitations in the RFC exists in the national
economy.203
2. PT Baird
Plaintiff alleges that the ALJ ignored PT Baird’s opinion that Plaintiff was only able
to perform sedentary work with “some abilities into the Light and Medium range” and
ignored the frequent postural changes and positional limitations, including stooping,
squatting, and sustained neck positioning, described in DPT Baird’s functional capacity
evaluation.204 The Commissioner contends that the ALJ reasonably rejected of the
portion of DPT Baird’s opinion regarding frequent postural changes based on “evidence
that [Plaintiff] offered less than full effort on examination.”205
The ALJ found DPT Baird’s opinion that Plaintiff was capable of sedentary work
with “some abilities in the light and medium range” persuasive, concluding that it
accurately reflected DPT Baird’s testing and observation of Plaintiff overall and was
202 A.R. 22, 77.
203 20 C.F.R. §404.1560(c) (The SSA is responsible for providing evidence that demonstrates that
other work exists in significant numbers in the national economy that the claimant can do, given
the residual functional capacity, age, education, and work experience of the claimant.).
204 Plaintiff argues that “during the FCE, [Plaintiff] demonstrated the ability to tolerate only 5
minutes of very mild stooping and reported pain on crouching.”) See Docket 13 at 10–11 (citing
A.R. 792).
205 Docket 14 at 8.
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consistent with Dr. Lebeau’s opinion.206 The ALJ did not ignore this portion of DPT Baird’s
opinion and included it in the RFC. But the ALJ considered and rejected DPT Baird’s
opinion that Plaintiff required frequent postural changes and included only “normal
breaks” in the RFC.207 The ALJ did not specifically address DPT Baird’s comment in the
FCE that “[p]ositional limitations were demonstrated in stooping, squatting, and sustained
neck positioning.”208
As set forth above, the ALJ adequately considered the factors in the new SSA
regulations. Her rejection of the frequent postural changes in DPT Baird’s opinion was
supported by the record.209 Further, DPT Baird’s postural change opinion was more akin
to a recommendation that Plaintiff would be “best suited for a job that allows for frequent
postural changes” based on her observations during the evaluation, at which she also
observed “variable levels of physical effort” during testing.210 Again, the ALJ included all
of the limitations she found persuasive and supported by objective medical evidence in
the RFC and by extension, the hypothetical questions posed to the vocational expert.211
Although DPT Baird noted that Plaintiff demonstrated position limitations, she did not
206 A.R. 22.
207 A.R. 17, 22.
208 A.R. 792.
209 See e.g., A.R. 316, 318, 323, 338, 371, 432–33, 439, 514, 522, 786, 852, 864, 908, 942, 1011,
1146, 1171–72, 1480, 1528.
210 A.R. 790–91, 793.
211 Osenbrock v. Apfel, 240 F.3d 1157, 1163–65 (9th Cir. 2001) (Only limitations supported by
substantial evidence must be incorporated into the RFC and, by extension, the hypothetical
question posed to the VE.).
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Case No. 4:20-cv-00009-SLG
Decision and Order
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opine as to the resulting impact on Plaintiff’s functional capacity.212 As set forth above,
the ALJ’s determination that Plaintiff was capable of stooping, kneeling, crouching, and
crawling activities at the occasional level was reasonable and supported by substantial
evidence.213 Moreover, as with Dr. Lebeau, any error in rejecting DPT Baird’s opinion
regarding postural changes or positional limitations was harmless as DPT Baird opined
that Plaintiff “demonstrate[d] a full Sedentary capacity.”214 Plaintiff’s past work performed
at the sedentary level would include very limited walking and standing and very limited
stooping, kneeling, crouching, or crawling activities.215
V. ORDER
The Court, having carefully reviewed the administrative record, finds that the ALJ’s
determinations were free from legal error and supported by substantial evidence in the
record. Accordingly, IT IS ORDERED that Plaintiff’s request for relief at Docket 13 is
DENIED as set forth herein and the Commissioner’s final decision is AFFIRMED.
The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 6th day of April 2021 at Anchorage, Alaska.
/s/ Sharon L. Gleason___________
UNITED STATES DISTRICT JUDGE
212 A.R. 792.
213 See e.g., A.R. 316, 318, 323, 338, 371, 432–33, 439, 514, 522, 786, 852, 864, 908, 942, 1011,
1146, 1171–72, 1480, 1528.
214 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and
citations omitted).
215 A.R. 22; see also SSR 96-9p, available at 1996 WL 374185, at *7–8
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