Steven Havens v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN HAVENS,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
No. 21-35022
D.C. No. 4:19-cv-05257-EFS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Argued and Submitted February 9, 2022
Portland, Oregon
Before: PAEZ and NGUYEN, Circuit Judges, and TUNHEIM,** District Judge.
Steven Havens appeals from the district court’s order affirming the
administrative law judge’s (“ALJ’s”) decision denying his application for
supplemental security income under Title XVI of the Social Security Act. We
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
FILED
JUN 13 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court’s
order affirming the denial of social security benefits by the ALJ de novo and
reverse only if the decision was not supported by substantial evidence or is based
on legal error. Ghanim v. Colvin, 763 F.3d 1154, 1159 (9th Cir. 2014). We can
affirm the ALJ’s decision even if made in error, “so long as the error was
harmless.” Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020).
1. The ALJ did not reversibly err at Step Two in concluding that Havens’
alleged radiculopathy and carpal tunnel syndrome (“CTS”) did not amount to
severe impairments. An impairment must be established by objective medical
evidence, and it cannot be considered severe if the evidence establishes only a
slight abnormality that would have no more than a minimal effect on the
individual’s ability to work. 20 C.F.R. § 416.921; SSR 85-28, 1985 WL 56856
(Jan. 1, 1985).1 Substantial medical evidence supported the ALJ’s determination at
Step Two because evidence in the record indicated that Havens’ CTS was
improving and he had never been diagnosed with radiculopathy by a medically
acceptable source. And even if the determination was in error, it was harmless
because the ALJ considered these conditions among his claimed impairments in
the overall residual functioning capacity determination.
1 SSRs “do not carry the force of law, but they are binding on ALJs
nonetheless.” Diedrich v. Berryhill, 874 F.3d 634, 638 (9th Cir. 2017) (internal
quotation marks and citation omitted).

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2. The ALJ did not reversibly err at Step Three by deciding that Havens did
not meet or equal any impairment listings because the ALJ offered more than
conclusory findings and engaged with the record evidence throughout the decision.
See Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990); Lewis v. Apfel, 236 F.3d
503, 513-14 (9th Cir. 2001).
3. The ALJ reversibly erred in partially discrediting Havens’ pain
testimony. The ALJ’s reasons—failure to seek treatment, incompatibility between
his testimony and his daily activities, and inconsistencies with the objective
medical evidence—do not constitute specific, clear, and convincing reasons on this
record. Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014). Havens
offered several explanations for his lack of treatment for CTS, including a sense of
hopelessness in seeking medical help and cost. But the ALJ failed to consider
these reasonable explanations, so Havens’ failure to seek treatment is not a
sufficient basis for discounting his testimony about his hand pain. See Regennitter
v. Comm’n of Soc. Sec. Admin., 166 F.3d 1294, 1296-97 (9th Cir. 1999).
The ALJ also cited Havens’ testimony that he mowed the lawn, did chores
around the house, watched TV and movies, occasionally visited friends, and took
care of his father as reasons to discount his pain testimony. But Havens never
testified that he cared for his father, and indeed testified that he tried to help his
father with chores but was unable to do so. He also explained that because of his

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conditions, he frequently had to take breaks or have his father take over his chores.
In light of our precedents, which urge caution in concluding that daily activities
performed in this manner are inconsistent with pain testimony, see, e.g., Garrison,
759 F.3d at 1016, this record does not constitute specific and convincing reasons to
discount Havens’ pain.
Finally, inconsistencies between the objective medical evidence and Havens’
pain testimony cannot, on their own, constitute a specific and convincing reason to
discredit pain testimony. Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989).
“Because pain is a subjective phenomenon . . . it is possible to suffer disabling pain
even where the degree of pain, as opposed to the mere existence of pain, is
unsupported by objective medical findings.” Id. Therefore, “[o]nce a claimant
submits objective medical evidence establishing an impairment that could
reasonably be expected to cause some pain, it is improper as a matter of law for an
ALJ to discredit excess pain testimony solely on the ground that it is not fully
corroborated by objective medical findings.” Id. (cleaned up). Because the ALJ’s
other reasons are not well supported by the record, the ALJ erred in discounting
Havens’ testimony based solely on inconsistencies with the medical record.
4. The ALJ also did not adequately weigh the medical evidence. First, the
ALJ incorrectly concluded that the alleged onset date was no earlier than the filing
date of the application, January 6, 2012. The onset date, however, should be the

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date alleged by the individual so long as that date is based in fact and is consistent
with all evidence. See SSR 83-20, 1983 WL 31249 (Jan. 1, 1983). Havens asserts
his disability began on June 1, 1995. If the ALJ finds that the claimant’s alleged
onset date is not consistent with the evidence, she must call on the services of a
medical advisor to determine the proper date. Armstrong v. Comm’n of Soc. Sec.
Admin., 160 F.3d 587, 589-90 (9th Cir. 1998).
In order to reject testimony of a medically acceptable treating source, the
ALJ must provide legitimate reasons based on substantial evidence. Garrison, 759
F.3d at 1012. The ALJ may discount testimony from other medical sources by
giving germane reasons. Id. Because the ALJ improperly applied the 2012 onset
date, she erred in excluding PAC Segren and ARNP Thomason’s 2009 opinions
based solely on the fact that their opinions predated this onset date. The ALJ also
erred in assigning little weight to Dr. Stringer’s November 2011 opinion for the
same reason. Dr. Stringer’s report was written only a few months prior to the
application date and was between the alleged onset date and filing date, rendering
it relevant. Pacheco v. Berryhill, 733 F. App’x 356, 360 (9th Cir. 2018). We
cannot find these errors harmless because all three limited Havens to sedentary
work and the ALJ failed to properly account for them in her analysis.
5. On these grounds, we conclude that reversal and remand for further
proceedings is the proper remedy. Though the ALJ erred, it is not clear from the

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record that Havens is entitled to benefits. Garrison, 759 F.3d at 1019. Additional
proceedings are needed for the ALJ to reassess the record based on the court’s
decision.
REVERSED AND REMANDED.

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