Sarah Stipek v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SARAH STIPEK,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
No. 21-35731
D.C. No. 4:20-cv-05116-JTR
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
John Tyler Rodgers, Magistrate Judge, Presiding
Argued and Submitted June 7, 2022
Seattle, Washington
Before: GILMAN,** IKUTA, and MILLER, Circuit Judges.
Sarah Stipek appeals from the district court’s decision affirming the
Commissioner of Social Security’s denial of her application for disability
insurance benefits under Titles II and XVI of the Social Security Act. We have
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
FILED
JUN 16 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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jurisdiction under 28 U.S.C. § 1291, and we reverse and remand for further
proceedings.
At step three of the sequential analysis, see 20 C.F.R. § 404.1520(a)(4)(iii),
the administrative law judge (ALJ) concluded that Stipek’s impairments did not
meet or equal Listing 3.02, which governs most chronic respiratory conditions, see
20 C.F.R. pt. 404, subpt. P, app. 1, § 3.02. For a woman of Stipek’s age and height,
a claimant meets Listing 3.02A if a spirometry test produces a forced expiratory
volume (FEV1) value of less than or equal to 1.25 liters, and she meets Listing
3.02B if the test produces a forced vital capacity (FVC) value of less than or equal
to 1.5 liters. Id. § 3.02(A), (B). Stipek’s September 2018 spirometry test produced
a FEV1 value of 1.02 liters and a FVC value of 1.51 liters.
The ALJ did not acknowledge that Stipek’s FEV1 value was below the
minimum FEV1 value identified in Listing 3.02A, and the ALJ erroneously stated
that Stipek’s counsel conceded that Stipek did not meet Listing 3.02A. The ALJ
provided two reasons for discounting the results of the test. First, the ALJ noted
that the test “did not provide any background information as to whether the
claimant was experiencing any exacerbation of her asthma symptoms at the time of
testing.” That statement appears to reference the requirement that the claimant be
“medically stable” at the time of testing. See 20 C.F.R. pt. 404, subpt. P, app. 1,
§ 3.00(E)(2)(a). A claimant is not medically stable if, for example, she is

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“[e]xperiencing, or within 30 days of completion of treatment for, an acute
exacerbation (temporary worsening) of a chronic respiratory disorder.” Id.
§ 3.00(E)(2)(a)(iii). But the listing requires only that the claimant be medically
stable, not that the test report affirmatively state that the claimant is medically
stable. See id. § 3.00(E)(3) (listing the requirements of a valid test report).
Although the Commissioner now suggests that Stipek might have been
“[e]xperiencing . . . an acute exacerbation” of her asthma symptoms at the time of
testing, the ALJ did not make a finding to that effect. Id. § 3.00(E)(2)(a)(iii).
Second, the ALJ observed that “a chart note dated December 21, 2018,
reflects that the claimant demonstrated normal lung sounds upon physical
examination and [that] she did not report any respiratory symptomology or
distress.” The Commissioner argues on appeal that the ALJ referenced this
treatment note to show that Stipek could not satisfy the requirement that a
claimant’s impairment persist for at least 12 months. See 20 C.F.R.
§ 404.1525(c)(4) (noting that, unless a given listing states otherwise, “the evidence
must show that [the claimant’s] impairment(s) has lasted or can be expected to last
for a continuous period of at least 12 months”). But the ALJ did not find that
Stipek failed to satisfy the durational requirement, and in fact the ALJ did not
reference the durational requirement at all. Because we must “review the ALJ’s
decision based on the reasoning and factual findings offered by the ALJ[,] not post

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hoc rationalizations that attempt to intuit what the adjudicator may have been
thinking,” we reject the Commissioner’s argument that Stipek did not meet the
durational requirement. See Bray v. Commissioner of Soc. Sec. Admin., 554 F.3d
1219, 1225–26 (9th Cir. 2009) (citing SEC v. Chenery Corp., 332 U.S. 194, 196
(1947)).
We reverse and remand to allow the ALJ to reconsider whether Stipek’s
impairments meet or equal Listing 3.02. In light of our resolution of that issue, we
decline to consider whether the ALJ erred by discounting Stipek’s testimony or by
providing an incomplete hypothetical to the vocational expert.
Costs shall be taxed against the appellee.
REVERSED and REMANDED.

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