Gallant v. Colvin

Filing 34

DECISION AND ORDER: Ms. Gallant's request for relief at Docket 1 is DENIED and the Commissioner's final decision is AFFIRMED. Signed by Judge Sharon L. Gleason on 03/19/2018. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
DONNA MARIE GALLANT,
Plaintiff,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

Case No. 3:16-cv-00258-SLG

DECISION AND ORDER
On November 26, 2008, Donna Marie Gallant filed applications for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and
XVI of the Social Security Act (“the Act”) respectively, 1 alleging disability beginning
September 20, 2008. 2 On April 22, 2009, the Social Security Administration (“SSA”)
determined that Ms. Gallant was disabled as of September 20, 2008. 3 On April 5, 2012,
the SSA determined that Ms. Gallant was no longer disabled due to medical
improvement. 4

Ms. Gallant has exhausted her administrative remedies and filed a

Complaint seeking relief from this Court. 5

1

The Court uses the term “disability benefits” to include both disability insurance and SSI.

2

Administrative Record (“A.R.”) 244, 249.

3

A.R. 92.

4

A.R. 94–98.

5

Docket 1 (Gallant’s Compl.) at 2.

The Commissioner filed an Answer and a brief in opposition to Ms. Gallant’s
opening brief. 6 Ms. Gallant filed a reply brief. 7 Oral argument was held on September
20, 2017. 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, Ms. Gallant’s request
for relief will be denied and the decision of the agency will be affirmed.
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
This standard of review applies to the agency’s determination on whether a claimant
continues to be disabled. 10 “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.” 11 Such evidence must be “more than a mere scintilla,”
but may be “less than a preponderance.” 12 In reviewing the agency’s determination, the

6

Docket 13 (Answer); Docket 24 (Defendant’s Br.).

7

Docket 27 (Gallant’s 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

Hiller v. Astrue, 687 F.3d 1208 (9th Cir. 2012).

11

Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).

12

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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Court considers the evidence in its entirety, weighing both the evidence that supports and
that which detracts from the administrative law judge (“ALJ”)’s conclusion. 13

If the

evidence is susceptible to more than one rational interpretation, the ALJ’s conclusion
must be upheld. 14 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 she
did not rely.” 15 Finally, 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.” 16
II. TERMINATION OF DISABILITY BENEFITS
Once a claimant has been found to be entitled to disability benefits, the SSA
conducts periodic reviews to evaluate the claimant’s continued eligibility to receive
benefits. 17 If upon review the Commissioner finds that a claimant is no longer disabled,
her benefits may be terminated. 18 However, disability benefits may only be terminated if
substantial evidence demonstrates (1) “there has been any medical improvement in the

13

Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).

14

Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citing Rhinehart v. Finch, 438 F.2d 920,
921 (9th Cir. 1971)).
15

Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).

16

Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and
citations omitted).

17

20 C.F.R. §§ 404.1594(a), 416.994(a).

18

42 U.S.C. § 423(f)(4).

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claimant’s impairment” and (2) the claimant “is now able to engage in substantial gainful
activity.” 19 Such determination is made “on the basis of the weight of the evidence and
on a neutral basis with regard to the individual’s condition, without any initial inference as
to the presence or absence of disability being drawn from the fact that the individual has
previously been determined to be disabled.”20
To determine whether there has been medical improvement, an ALJ must
“compare the current medical severity” of the claimant’s impairment to the medical
severity of the impairment “at the time of the most recent favorable medical decision that
the claimant was disabled or continued to be disabled.” 21 Medical improvement is defined
as “any decrease in the medical severity” of the claimant’s impairment and requires
“comparison of prior and current medical evidence which must show that there have been
changes (improvement) in the symptoms, signs or laboratory findings associated with that
impairment(s).” 22
In an effort to ensure that disability reviews are uniform, the SSA follows an eightstep evaluation process under Title II and a seven-step process under Title XVI. 23 The
steps, and the ALJ’s findings in this case, are as follows:

19

42 U.S.C. § 423(f)(1).

20

42 U.S.C. § 423(f)(4).

21

20 C.F.R. § 404.1594(b)(7).

22

20 C.F.R. §§ 404.1594(b)(2), 404.1594(c)(1).

23

20 C.F.R. §§ 404.1594(f), 416.994(b)(5).

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Title II, Step 1.

For the Title II claim, the ALJ must determine if the claimant is

engaging in substantial gainful activity. If the claimant is performing substantial gainful
activity and any applicable trial work period has been completed, the claimant is no longer
disabled (20 CFR 404.1594(f)(1)). For the Title XVI claim, the performance of substantial
gainful activity is not a factor used to determine if the claimant’s disability continues (20
CFR 416.994(b)(5)). As of April 5, 2012, the date on which the agency had determined
Ms. Gallant’s disability ended, the ALJ determined that Ms. Gallant had not engaged in
substantial gainful activity. 24
Title II, Step 2 and Title XVI, Step 1.

At step two for the Title II claim and step

one for the Title XVI claim, the ALJ must determine whether the claimant has an
impairment or combination of impairments which meets or medically equals the severity
of an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1. If the claimant does,
her disability continues. The ALJ determined that Ms. Gallant has not had an impairment
or combination of impairments that meets or medically equals a listing since April 5,
2012. 25
Title II, Step 3 and Title XVI, Step 2.

At step three for the Title II claim and step

two for the Title XVI claim, the ALJ must determine whether medical improvement has
occurred by comparing the current medical severity of a claimant’s impairment with the
severity at the time of the most recent favorable medical determination of disability.

24

A.R. 27.

25

A.R. 27.

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Medical improvement is any decrease in medical severity of the impairment(s) as
established by improvement in symptoms, signs or laboratory findings (20 CFR
404.1594(b)(1) and 416.994(b)(1)(i)). If medical improvement has occurred, the analysis
proceeds to the fourth step for the Title II claim and the third step for the Title XVI claim.
If not, the analysis proceeds to the fifth step for the Title II claim and the fourth step for
the Title XVI claim. The ALJ determined that medical improvement had occurred as of
April 5, 2012. He noted a decrease in treatment for mental health related symptoms. He
also referenced neuropsychological testing revealed no more than minimal limitations and
treatment records revealed no clinical evidence of significant mental impairment related
limitations. 26
Title II, Step 4 and Title XVI, Step 3.

At step four for the Title II claim and step

three for the Title XVI claim, the ALJ must determine whether medical improvement is
related to the ability to work. Medical improvement is related to the ability to work if it
results in an increase in the claimant’s capacity to perform basic work activities. If it is
related, the analysis proceeds to the sixth step for the Title II claim and the fifth step for
the XVI claim. The ALJ determined that Ms. Gallant’s medical improvement is related to
the ability to work “because it has resulted in an increase in [Ms. Gallant]’s residual
functional capacity.” 27

26

A.R. 30.

27

A.R. 30.

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Title II, Step 5 and Title XVI, Step 4.

At step five for the Title II claim and step

four for the Title XVI claim, the ALJ must determine if an exception to medical
improvement applies. There are two groups of exceptions. If one of the first group of
exceptions applies, the analysis proceeds to the next step. If one of the second group of
exceptions applies, the claimant’s disability ends. If none apply, the claimant’s disability
continues. Because the ALJ concluded at step four for the Title II claim and step three
for the Title XVI claim that Ms. Gallant’s medical improvement is related to her ability to
work, step five for Title II and step four for Title XVI were not addressed by the ALJ in his
decision.
Title II, Step 6 and Title XVI, Step 5.

At step six for the Title II claim and step

five for the Title XVI claim, the ALJ must determine whether all the claimant’s current
impairments in combination are severe. If all current impairments in combination do not
significantly limit the claimant’s ability to do basic work activities, the claimant is no longer
disabled. If they do, the analysis proceeds to the next step. The ALJ determined that as
of April 5, 2012, Ms. Gallant had the following current impairments:

“status-post

polytrauma to the head, osteoarthritis of the right ankle, status-post right wrist fracture
and repair, status post left hip fracture and repair, mood disorder, anxiety disorder, and
cognitive/post-concussive disorder with chronic headaches.” 28

28

A.R. 27.

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The ALJ found Ms.

Gallant’s current impairments are severe “because, singly or in combination, they impose
more than minimal limitations on [Ms. Gallant]’s ability to perform basic work activities.”29
Title II, Step 7 and Title XVI, Step 6.

At step seven for the Title II claim and

step six for the Title XVI claim, the ALJ must assess the claimant’s residual functional
capacity based on the current impairments and determine if she can perform past relevant
work. If the claimant can perform past relevant work, she is no longer disabled. If not,
the analysis proceeds to the last step. The ALJ determined that beginning on April 5,
2012, based on current impairments, Ms. Gallant had the RFC to perform sedentary work
except that Ms. Gallant is limited to frequent climbing of ramps or stairs and balancing;
occasional climbing of ladders, ropes or scaffolds, and crouching; and frequent, not
constant, handling and fingering with the right upper extremity.

She must avoid

concentrated exposure to non-weather related extreme cold, wetness, excessive noise,
and unprotected heights, avoid moderate exposure to excessive vibration, and work is
limited to 1-3 step tasks involving only few workplace changes. 30
The ALJ also determined that Ms. Gallant has no past relevant work. 31
Title II, Step 8 and Title XVI, Step 7.

At the last step, the ALJ must determine

whether other work exists that the claimant can perform, given her residual functional
capacity and considering her age, education, and past work experience. If the claimant

29

A.R. 30.

30

A.R. 30–31.

31

A.R. 26.

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can perform other work, she is no longer disabled. If the claimant cannot perform other
work, her disability continues. In order to support a finding that an individual is not
disabled at the final step, the Social Security Administration is responsible for providing
evidence that demonstrates that other work exists in significant numbers in the national
economy that the claimant can do, given her residual functional capacity, age, education,
and work experience. 32 The ALJ determined that beginning on April 5, 2012, considering
Ms. Gallant’s age, education, work experience, and RFC based on the current
impairments, Ms. Gallant is able to perform a significant number of jobs in the national
economy including receptionist, telephone solicitor, and telephone information clerk. 33
The ALJ concluded that Ms. Gallant’s disability ended on April 5, 2012, and she
has not become disabled again since that date to the date of the ALJ’s decision. 34
III.

PROCEDURAL AND FACTUAL BACKGROUND

Ms. Gallant was born in 1988; she was 23 years old on April 5, 2012. Ms. Gallant
was seriously injured in a car accident on September 20, 2008. Prior to the accident, she
had obtained her high school diploma and a certificate in drywall finishing. She had

32

A.R. 27; see Parra v. Astrue, 481 F.3d 742, 748 (9th Cir. 2007); Bellamy v. Sec. of Health &
Human Serv., 755 F.2d 1380, 1381 (9th Cir. 1985) (“Once a claimant has been found to be
disabled, however, a presumption of continuing disability arises in her favor. The Secretary then
bears the burden of producing evidence sufficient to rebut this presumption of continuing disability.
This evidence must be produced before the Secretary can even consider the medical-vocational
guidelines . . . and is reviewed under the ‘substantial evidence’ standard.”) (citations omitted).
33

A.R. 40–41.

34

A.R. 41-42.

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worked as a cook for one year prior to the accident. 35 Ms. Gallant filed applications for
disability benefits on November 26, 2008. 36 On April 22, 2009, Ms. Gallant was found to
be disabled beginning on September 20, 2008. 37 After a subsequent case review, Ms.
Gallant was informed that she was no longer considered disabled as of April 5, 2012. 38
She requested reconsideration of the decision on May 11, 2012. 39 On May 22, 2013,
following a reconsideration hearing, a Disability Hearing Officer upheld the determination
that Ms. Gallant was no longer disabled as of April 5, 2012 due to medical improvement.40
Ms. Gallant filed a request for hearing before an ALJ. 41 That hearing was held before ALJ
Paul Hebda on January 27, 2014 in Anchorage, Alaska. 42 In his decision of March 21,
2014, the ALJ determined that Ms. Gallant’s disability ended on April 5, 2012. 43 As part
of his decision, the ALJ incorrectly identified May 22, 2013 as the relevant comparison
point decision (“CPD”) date for determining medical improvement. The Appeals Council

35

A.R. 770.

36

A.R. 244, 249.

37

A.R. 92. The disability determination form from April 22, 2009 stated the primary diagnosis was
“affective/mood disorders,” with a secondary diagnosis of “anxiety disorders.” The accompanying
documentation references Ms. Gallant’s traumatic brain injury. A.R. 125.

38

A.R. 100.

39

A.R. 141.

40

A.R. 154–161.

41

A.R. 170.

42

A.R. 49.

43

A.R. 42.

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noted and the parties agree that the CPD date of May 22, 2013 is incorrect. 44 The
Appeals Council denied Ms. Gallant’s request for review on September 2, 2016. 45 Ms.
Gallant appealed to this Court. 46
Medical Records of Ms. Gallant’s Traumatic Brain Injury
On September 20, 2008, Ms. Gallant was involved in a horrific motor vehicle
accident. She suffered multiple injuries and lost her unborn child. She had fractures to
her hip, wrist, and ankle, as well as a traumatic brain injury. 47 A CT scan of Ms. Gallant’s
head on September 20, 2008 “showed no intracranial bleeds though there is some gas in
the facial tissues.” 48
A follow-up CT scan of Ms. Gallant’s head on September 21, 2008 showed
“multiple tiny foci of abnormal high density in the bilateral frontal regions consistent with
contusions” with the largest contusion “within the left frontal lobe and measures 8 mm.”

44

A.R. 27. The correct CPD is April 22, 2009, the date of the initial disability determination for
Ms. Gallant. See A.R. 92; 147 (noting CPD as April 22, 2009). In its order denying review, the
Appeals Council acknowledged that the ALJ had referred to an incorrect CPD and “lists a mental
impairment different from the traumatic brain injury impairment that formed the basis for the earlier
determination.” However, the Council found “the decision corrects this error by acknowledging a
post concussive syndrome (Finding 4) and providing extensive rationale showing improvement in
the traumatic brain injury.” A.R. 2. Ms. Gallant noted in her brief that the ALJ did not specify the
correct date of the point of comparison and the list of Ms. Gallant’s impairments at the actual
comparison point was incorrect. Docket 23 at 19. The Commissioner concedes these errors.
Docket 24 at 15. The parties disagree whether these errors are harmless. Docket 23 at 19–22;
Docket 24 at 15–18; Docket 27 at 5–6.
45

A.R. 1.

46

Docket 1–5.

47

A.R. 421–424, 431–439, 449–453.

48

A.R. 451.

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The report also noted that “[t]here remains a large right frontoparietal subgaleal
hematoma.” 49
A September 23, 2008 CT scan indicated that the “[s]cattered petechial
hemorrhages throughout the frontal lobes are improving or resolved.” The subcortical
hematoma was observed as “stable in size,” but the “[s]urrounding edema has progressed
slightly.” 50
On September 24, 2008, Ms. Gallant was interviewed briefly by Mark Samson,
M.D. He noted that Ms. Gallant “only responds to me in one or two-word answers.” At
the time of the interview she did not understand that she no longer had a child and
requested to go home because she had “a little one at home I have to take care of.”51
A September 25, 2008 CT scan showed a “substantial premalar soft tissue
hematoma overlying the zygoma and the right maxilla.” 52
On October 2, 2008, Ms. Gallant was transferred to an intensive inpatient
rehabilitation unit, where she stayed for 8 days. On admission, she saw Dong Cho, M.D.
Dr. Cho reported that Ms. Gallant was “alert with good preservation of attention span and
communication so that she can answer most of the simple questions immediately and the
patient has good oral expression” but that her “high cognition showed still significant

49

A.R. 575.

50

A.R. 678.

51

A.R. 656–57.

52

A.R. 681.

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impairment.” Dr. Cho observed that “[a]t the present time the patient is level VI/X of the
Rancho Los Amigos of head trauma recovery, presenting confused but appropriate
behavior” and that Ms. Gallant had “goal-oriented behavior” and “can respond
appropriately to the situation, but [Ms. Gallant] has incorrect response because of
memory impairment and the patient requires verbal cues and direction for most of the
activities.” He concluded that Ms. Gallant was “totally disabled at the present time, she
cannot return to any kind of productive work or schooling for a long time, up to one year.” 53
On October 9, 2008, the CT scan showed “interval decrease in previously seen
bilateral frontal lobe hemorrhagic foci.”54
In his October 10, 2008 discharge report, Dr. Cho wrote that Ms. Gallant was “very
nice and courageous,” but had “significant residual deficits, particularly cognitive
impairment due to the traumatic brain injury.” He noted that “[e]ven though the patient
was making improvement, still she had quite impaired high cognition, insight and problem
solving, and [she] still overestimates her capacity. [Ms. Gallant] showed impulsivity and
mild organizational problems.”55
On October 22, 2008, Ms. Gallant received an occupational therapy assessment
from Denise McGowen, OTR/L. Ms. McGowen observed that Ms. Gallant’s “[m]emory

53

A.R. 733, 737–38.

54

A.R. 638.

55

A.R. 641–42.

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appears to be intact, [Ms. Gallant is] able to recall recommendations from therapist and
that she is not to drive.” 56
Also on October 22, 2008, Ms. Gallant saw Anne Godwin, MA, CCC-SLP for a
speech-language-cognitive assessment. Ms. Godwin found that Ms. Gallant “presents
with functional speech-language-cognitive-swallowing skills” and that “[t]herapy is not
warranted at this time.”57
On November 25, 2008, Ms. Gallant had a follow up visit with Dr. Cho. He
observed that Ms. Gallant “showed very good conversation during the examination, with
functional attention span and working memory,” but she “still has low endurance and is
easily distracted.” He concluded, “overall she is making good improvement.” He rated
Ms. Gallant at a level VIII/X on the Rancho Los Amigos head trauma recovery scale. 58
Ms. Gallant had sought mental health counseling shortly before the motor vehicle
accident on September 10, 2008 at Mat-Su Health Services. She reported then that she
was homeless, living in her vehicle, and had had crying episodes and difficulty sleeping. 59
After the accident, she next returned to Mat-Su Health Services for a counseling session
on November 19, 2008. 60

56

A.R. 620.

57

A.R. 627–28.

58

A.R. 728.

59

A.R. 696. The record from that visit indicates that Ms. Gallant had previously obtained
counselling at Mat-Su Health Services in 1999 and 2005; she was diagnosed with depression and
PTSD.

60

A.R. 719–21.

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On December 3, 2008, Ms. Gallant saw a staff person at Mat-Su Health Services
who reported that “[Ms. Gallant]’s mom was concerned about client’s functioning, memory
and impairment of decision making. [Ms. Gallant]’s mom however could not give specifics
on [Ms. Gallant]’s impulsivity or high risk decisions.” 61 On December 5, 2008, Ms. Gallant
attending a therapy session at Mat-Su Health Services; she also met with staff on
December 10, 2008 to practice calming techniques. 62
Ms. Gallant next returned to Mat-Su Health Services for a therapy session on
February 2, 2009. On that date, the therapist noted that Ms. Gallant “denies having mood
swings as mom reported.” 63

She attended additional counseling appointments on

February 9 and February 16, 2009. 64
At Ms. Gallant’s next appointment on February 27, 2009, the counsellor observed
that Ms. Gallant’s “mood was euthymic” and her “insight and judgment [are] improving—
going slow on relationships.” Ms. Gallant reported she was pursuing books, crosswords,
etc. to improve her cognition. 65
Ms. Gallant had one more therapy session at Mat-Su Health Services on March
12, 2009. The counsellor observed that Ms. Gallant’s “affect was somewhat flat and she

61

A.R. 717,

62A.R.

716, 714.

63

A.R. 762.

64

A.R. 761, 760.

65

A.R. 758.

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was somewhat depressed,” but that Ms. Gallant “is experiencing her grief appropriately
and ‘normally.’” 66 There is no record of any additional mental health counselling in 2009.
As noted above, on April 22, 2009, the SSA found Ms. Gallant to be disabled as of
September 20, 2008. 67
On January 14, 2010, Richard Fuller, Ph.D., conducted a neuropsychological
evaluation of Ms. Gallant.

Dr. Fuller interviewed Ms. Gallant, her mother, and her

stepfather. He reviewed Ms. Gallant’s records and conducted a battery of tests. Ms.
Gallant told Dr. Fuller that “she continues to have mild problems with short-term memory,
but primarily does not notice any significant cognitive difficulties. She did state that she
can be somewhat moodier and gets irritable and has less patience with things than she
used to, but she does not engage in any aggressive behavior.” Dr. Fuller found that Ms.
Gallant’s Verbal IQ was 94, her Performance IQ was 114, and her Full-Scale IQ was 104.
He found that Ms. Gallant’s academic functioning, learning, and memory were all lowaverage to average for her age, her attention and concentration was mildly deficient to
average, her mental processing was “faster than average,” and her language functioning
was below average to average. Dr. Fuller found that Ms. Gallant’s motor speed was slow,
but her fine motor coordination was high-average for her dominant right hand and average
for motor speed and coordination in her nondominant left hand. Dr. Fuller assigned a
GAF of 65. He opined:

66

A.R. 756.

67

A.R. 92.

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[B]y her own admission as well as reports from her mother and stepfather,
she is more irritable, more prone to using profanity, and less empathetic.
These characteristics are consistent with frontal lobe brain damage, and
thus appear to be a function of the TBI and subsequent vascular damage
she experienced from the MVA. There apparently is some differential
moodiness, in that she becomes less annoyed with her stepfather than with
her mother over the same issue, and thus, she appears to have some
control over her emotional reactions.
Dr. Fuller concluded that “Ms. Gallant’s cognitive abilities are remarkably intact, and thus,
she does not seem to have any limitations as far as returning to work.” He recommended
ongoing individual psychotherapy to address ongoing bereavement issues and to develop
“positive coping strategies.” 68
On January 20, 2010, Ms. Gallant had one counseling session at Mat-Su Health
Services. The counsellor observed that Ms. Gallant “presented good hygiene [and]
grooming.” She reported that Ms. Gallant “is at odds [with] her parents and is working on
becoming her own payee and eventually returning to work.” She also reported that Ms.
Gallant “continues to strive for autonomy” and “appears fully competent to this writer.” 69
Beginning in January of 2011, Ms. Gallant saw D. Glen Elrod, M.D., at Sleeping
Lady Women’s Health Care for prenatal visits. At each of these visits, Dr. Elrod noted
that “[Ms. Gallant] appears to be doing well.”

At a six-week postpartum check-up on

August 18, 2011, Dr. Elrod reported that Ms. Gallant “notes no current complaints” and
was in “no acute distress.” 70

68

A.R. 765–772.

69

A.R. 845.

70

A.R. 791, 806–16. Ms. Gallant visited Dr. Elrod on January 10, 2011, February 14, 2011, March
14, 2011, April 11, 2011, April 25, 2011, May 11, 2011, May 25, 2011, June 8, 2011, June 15, 2011,

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The next mental health counseling record is from September 7, 2011, when Ms.
Gallant contacted Mat-Su Health Services to report that she was starting to get depressed
as it was nearing the anniversary of her daughter’s death. 71 However, at a therapy
session on September 12, 2011, the counsellor described Ms. Gallant’s mood as “bright,”
and with “congruent affect.” She reported Ms. Gallant “continues to experience memory
loss per her report.” The counsellor also reported that Ms. Gallant “continues to struggle
[with] health and pain although cognitively she is much improved.”72 There are no further
records of counseling at Mat-Su Health Services after that date.
On January 23, 2012, Ms. Gallant participated in a psychiatric evaluation by David
Holladay, M.D., as part of the SSA review of Ms. Gallant’s disability determination. Ms.
Gallant’s mother accompanied her to the evaluation.

Ms. Gallant’s chief reported

complaint at that visit was her physical disabilities: “I feel like my physical disabilities limit
me. I can’t walk, sit, or stand before my hip and ankle hurt especially if it’s cold out.” Dr.
Holladay observed that Ms. Gallant was “easily oriented to time place, person.” He also
observed that her “[s]peech is in the normal range for rate and volume,” her “[c]ognitive
function is judged to be overall in the average range but was not formally tested,”
“[g]eneral mood appears to be happy or euthymic,” and her “[a]ffect [was] consistent.” Dr.
Holladay noted that Ms. Gallant’s “[i]nsight and judgment appear to be good” and her

June 22, 2011, June 29, 2011, and August 18, 2011.
71

A.R. 837–41.

72

A.R. 842-43.

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“[t]hought processes are logical and goal directed.” He reported that Ms. Gallant “has
been off Lexapro for 2 years without mood problems.” He concluded, “[a]t this point,
anxiety disorder symptoms and mood disorder symptoms are minimal and not
significantly impacting social or occupational functioning.” But Dr. Holladay also noted
that “[t]he full impact of Ms. Gallant’s head injury on her current functioning is difficult to
determine on the basis of this evaluation.” He added that “Ms. Gallant and I agree, her
physical difficulties at this point are probably more impairing than her cognitive and
psychiatric symptoms . . . Ms. Gallant’s psychiatric problems are probably interfering with
her ability to function socially and occupationally at a mild or low level.” Dr. Holladay
determined that Ms. Gallant had a GAF score of “probably 48, although difficult to
determine.” He recommended ongoing individual therapy and stated that “[c]onsideration
might be given to a repeat neuropsychological evaluation to make a determination
regarding these more subtle and complex cognitive problems.” 73
On March 5, 2012, Ms. Gallant saw Susan Klimow, M.D., for a consultative
examination at the request of the SSA. Ms. Gallant reported that her chief complaints
were her right wrist, right ankle, and left hip pain.

Ms. Gallant reported “[s]he is

independent with activities of daily living and a mother of an 8-month-old daughter, which
she is able to care for.” Dr. Klimow noted that Ms. Gallant had a traumatic brain injury
with reported memory defects.

She observed that Ms. Gallant “follows multistep

commands consistently,” that “her speech is clear,” “[s]he is oriented x 4,” and “[t]here is

73

A.R.
847–50.
Lexapro
is
used
to
treat
depression
and
anxiety.
https://www.webmd.com/drugs/2/drug-63990/lexapro-oral/details (last visited February 15, 2018).

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no evidence of aphasia.” Dr. Klimow also noted no physical deficits that would impact
Ms. Gallant’s ability to do future work activities. She also found “no mental impairment
limiting [Ms. Gallant]’s ability to reason or make occupational, personal or social
adjustments.” 74
On March 11, 2012, Jay Caldwell, M.D., reviewed Ms. Gallant’s records to
complete a physical residual functional capacity assessment for the SSA. He determined
that Ms. Gallant was able to occasionally lift and/or carry thirty-five pounds, frequently lift
and/or carry ten pounds; stand and/or walk for a total of at least two hours in an eighthour workday; sit for about six hours in an eight-hour workday; and frequently push and/or
pull in the upper and lower extremities. 75
On April 5, 2012, Ms. Gallant began seeing Loetta Woods, D.O., as her primary
care provider. 76 Dr. Woods observed that Ms. Gallant was “verbally appropriate and able
to follow simple requests” and that “[Ms. Gallant] is in no acute distress.” Dr. Woods
reported that Ms. Gallant “[d]enies memory loss, disorientation, syncope, diplopia,
dizziness, vertigo, clumsiness, paresthesias, or cephalgia” and that Ms. Gallant “reports
headaches and mood changes.” Ms. Gallant stated her headaches have not changed in
“duration or intensity since the accident” and it “is a constant headache.” Dr. Woods
recommended continuing with ibuprofen for Ms. Gallant’s headaches and considering

74

A.R. 857–59.

75

A.R. 864.

76

April 5, 2012 is also the date that the SSA determined Ms. Gallant was no longer disabled. A.R.
42.

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“being evaluated by a neurologist in the future to determine if she has migraine
headaches.” Dr. Woods also recommended that Ms. Gallant obtain mental health care
“to help find new skills in her changing environment,” but Ms. Gallant stated she was “not
interested in a mental health care provider to help deal with the grief that she is
expressing.” 77
On June 21, 2012, Ms. Gallant returned to Dr. Woods and reported severe
headaches. She added that “the mood swings are something that have been with her
ever since the accident.” Dr. Woods noted that “[Ms. Gallant] states that the headaches
also are associated with her mood swings,” but “that since she was placed on the Celexa
she has found that the mood swings have stabilized also.” Dr. Woods reported that Ms.
Gallant denied vision changes, memory loss, disorientation, syncope, diplopia, dizziness,
vertigo, clumsiness, paresthesias, or cephalgia. Dr. Woods noted that “[Ms. Gallant] was
consulted for 25 minutes about the need to consider being seen by a mental health care
provider to learn to cope with some of the issues that seem to remain since the motor
vehicle accident.” At this visit, the record indicates Ms. Gallant expressed interest in such
care. 78

77

A.R. 871–73. This medical record from April 5, 2012 appears to be the earliest reference to
headaches in the record.
78

A.R. 907–08. Celexa is used to treat depression. https://www.webmd.com/drugs/2/drug8603/celexa-oral/details (last visited February 15, 2018).

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On July 26, 2012, Ms. Gallant had a magnetic resonance angiography (MRA) of
the circle of Willis and an MRI of the brain, both performed at the Alaska Brain Center,
LLC. The MRA showed “normal anatomy.” The MRI of the brain was also normal. 79
On July 27, 2012, Ms. Gallant saw Dr. Woods at a follow up visit. At this visit, Ms.
Gallant’s primary concern was right ankle pain; she also reported that she is “constantly
feeling out of sorts.” Dr. Woods reported that Ms. Gallant “states that her depression is
continuing to be a major problem for her,” but that “she is not interested in an
antidepressant” and “not interested in being seen by a mental health care provider.” Dr.
Woods reported that Ms. Gallant “[d]enies memory loss, disorientation, syncope, diplopia,
dizziness, vertigo, clumsiness, paresthesias, or cephalgia” and “is able to complete her
ADLs independently.” Dr. Woods again recommended that Ms. Gallant seek mental
health counseling; at this visit, Ms. Gallant reported she was not interested. There is no
reference to headaches at this office visit. 80
On August 9, 2012, Ms. Gallant saw Dr. Woods again. Dr. Woods reported that
Ms. Gallant “has been taking the antidepressant that was recently prescribed for her.”
Ms. Gallant reported “intense headaches” that occur “at least four times a month,” but
that “she is not interested in taking medication to prevent these,” and that “she has not
used any type of medication for migraine headaches.” She indicated “the light affects her
when she is having one of these headaches.” Dr. Woods asked Ms. Gallant to start a

79

A.R. 900–02.

80

A.R. 910.

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headache diary. At the visit, Ms. Gallant again denied “memory loss, disorientation,
syncope, diplopia, dizziness, vertigo, clumsiness, paresthesias, or cephalgia.” 81
On August 21, 2012, the State agency consulting physician, Wandal Winn, M.D.,
reviewed Ms. Gallant’s medical records and based on that review, determined that “there
is no evidence of any disabling impairment, physical or mental.” 82
On September 7, 2012, Ms. Gallant saw Jeffrey Sponsler, M.D., a neurologist at
the Alaska Brain Center, LLC.

Dr. Sponsler assessed Ms. Gallant with migraines,

complicated grief, and PTSD.

He recommended that Ms. Gallant obtain additional

neuropsychological testing, consider using Effexor for headache prevention and
depression treatment, and “continue counseling and psychiatry for complicated grief,
PTSD.” 83
On February 7, 2013, Ms. Gallant next saw Dr. Woods. Dr. Woods reported that
Ms. Gallant “states she has a migraine headache two or three times a month,” but that
the “Maxalt that has been prescribed for her in the past has been very helpful.” Dr. Woods
noted that “if she catches these headaches early enough she doesn’t have any problem
with them.” Ms. Gallant also reported that the medication she had been prescribed for
depression had resulted in “stabilized emotion,” and “she is very pleased with the

81

A.R. 912–13.

82

A.R. 879.

83

A.R. 880–82. Effexor is used to treat depression. https://www.webmd.com/drugs/2/drug1836/effexor-oral/details (last visited February 15, 2018).

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medication.” At the visit, Ms. Gallant again “states that she is not interested in being seen
by a mental health care provider.” 84
On May 2, 2013, Ms. Gallant next saw Dr. Woods; she complained of congestion,
facial pain, and headaches. Ms. Gallant reported that she continued to use Maxalt
“whenever she has a headache.” Dr. Woods also noted that Ms. Gallant “states that she
has been in to see a neurologist for her migraine headaches and he indicated that these
are typical migraine headaches and that she will probably have them most of her life.”
She was diagnosed with sinusitis and prescribed an antibiotic. 85
On July 15, 2013, Ms. Gallant saw Dr. Woods for a follow up visit. She complained
that day primarily of depression. She told Dr. Woods that she was “looking for disability
to [be] extended” because she has “many issues that have not been resolved since the
motor vehicle accident,” which “continue[ ] to keep her from working.” 86
On August 21, 2013, Ms. Gallant saw Russell Cherry, PsyD, for a
neuropsychological evaluation. Dr. Cherry interviewed both Ms. Gallant and her mother,
and conducted a battery of neuropsychological tests. Ms. Gallant told Dr. Cherry that with
Maxalt, she was then having migraines “only 1-2 times per month.” Dr. Cherry concluded
that “on a measure of judgment for health and safety, [Ms. Gallant]’s performance was

84

A.R. 915–17. Maxalt is used to treat migraines. It helps to relieve headache, pain, and other
migraine
symptoms
(including
nausea,
vomiting,
sensitivity
to
light/sound).
https://www.webmd.com/drugs/2/drug-8440/maxalt-oral/details (last visited February 15, 2018).
85

A.R. 918.

86

A.R. 921.

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within normal limits, 84th percentile, which is a performance consistent with adults who
are able to live independently.” Ms. Gallant described her mood as “I don’t know –
normal,” but Ms. Gallant’s mother described her daughter’s mood as “more noteworthy
for hostility.” Her mother reported in the interview that Ms. Gallant “will often misperceive
others and react strongly” and “described significant angry outbursts, where the patient
will yell or slam doors, which occurs approximately every several days, which is very
atypical for the patient.” Dr. Cherry noted that Ms. Gallant’s mother “rated [Ms. Gallant]’s
overall adaptive functioning in the severely impaired range, 0.6 percentile, which is below
the expected level.” During the interview, Ms. Gallant reported that her hobbies and
interests included “playing video games, horseback riding, singing karaoke, listening to
music, doing artistic activities, and reading, but [Ms. Gallant] noted that she is doing less
art due to being busy with demands of parenting.” She also reported that she had been
“involved in a relationship with her partner for 3 years and denied any significant relational
problems.” Dr. Cherry reported Ms. Gallant’s ABAS-II summary as follows: impaired
communication, community use, functional academics, and self-direction; low average
home living and health and safety; and borderline leisure, self-care and social skills. Dr.
Cherry noted that “[Ms. Gallant]’s overall performance across neuropsychological
domains was entirely within normal limits.” In his diagnostic interpretation, Dr. Cherry
reported:
With regard to diagnosis of Mood Disorder Due to TBI-Mixed, [Ms. Gallant]
and her mother endorsed numerous symptoms of mood disorder during the
interview, the patient has prior diagnoses of depressive disorder and a long
history of treatment for that, the patient has a familial history of issues with
depression, and the patient’s traumatic brain injury that resulted in extensive
frontal lobe damage and lengthy posttraumatic amnesia would typically
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result in some persisting mood disorder for the majority of adults.
Additionally, the patient appears to have had some intermittent issues with
depression during childhood/adolescence due to abuse and some family
chaos, yet her mood issues were greatly exacerbated by TBI, with the
patient’s mother describing a marked personality change where she went
from “passive/quiet” to “angry/aggressive,” which [is] very common for
individuals with mood disorder from brain injury. Unfortunately, it appears
that some clinicians and social security staff have concluded that since her
recent MRI scan [was] described as normal, her mood issues have
resolve[d], but among TBI literature there are studies that show persisting
mood and personality changes even after MRI scans normalize. 87
Dr. Cherry recommended Ms. Gallant reapply for social security disability, but also
noted, “with the right supports, and better stabilization of mood/sleep, the patient could
be successful with competitive employment in the future.” Dr. Cherry opined that “[Ms.
Gallant]’s mood issues appear to be the most disabling condition from a
neuropsychological perspective, with attentional deficits only somewhat limiting.” 88
On August 22, 2013, Ms. Gallant next saw Dr. Woods; her chief complaint on that
day was an upper respiratory infection. Ms. Gallant reported that “overall she has been
doing quite well.” Dr. Woods again recommended Ms. Gallant obtain mental health
counseling and Ms. Gallant again stated she was “not interested in being seen by a
mental health provider.” 89
Testimony and Third Party Reports
The April 22, 2009 Disability Determination for Ms. Gallant included mental

87

A.R. 895.

88

A.R. 884–899.

89

A.R. 924–25.

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limitations with an onset date of September 20, 2008. A consultant at that time noted
Ms. Gallant had mental limitations that were “severe enough to preclude all unskilled
work” and she was “not capable of performing other work.” 90 The SSA’s consultant
noted that “my clinical experience is that many people with brain injuries have limited
insight into their difficulties” and “in consideration on all of the issues in this claim,
especially, the severity of [Ms. Gallant]’s TBI, apparently marginal pre-injury
adjustment, suggestion from recent mental health notes that [Ms. Gallant] is having a
hard time coping, consistent with 3 P ADLs, I think that we have sufficient medical and
other evidence to conclude at least mod[erate] limits in Daily Living and Social
functioning, marked limits in CPP and an MRFC indicating that [Ms. Gallant] could not
maintain adequate pace and persistence on a consistent basis and could not
adequately cope with routine stresses and hassles in the workplace.” 91
In a function report dated March 25, 2012, Ms. Gallant reported that in social
activities, she gets angry and frustrated easily. She also reported that she gets along
“just fine” with authority figures. She added that she “can’t handle much stress.” 92
In a function report dated March 28, 2012 by Ms. Gallant’s mother, she describes
Ms. Gallant as being “very different now . . . her temper flares easily,” “con[cen]tration
on tasks take[s] longer, and frustration overwhelms her,” and she does “not remember

90

A.R. 127–28.

91

A.R. 125.

92

A.R. 277–84.

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conversations she will have with me.” Ms. Gallant’s mother also reported that Ms.
Gallant follows written and spoken instructions “fairly well,” but does not handle stress
well. 93
On April 5, 2012, the Disability Determination Unit concluded that Ms. Gallant was
no longer disabled, that her mental impairments were non-severe, and that she was
capable of working at sedentary, unskilled jobs. In making this analysis, the Disability
Determination Unit used April 2009 as the CPD date. 94
At the January 27, 2014 hearing before the ALJ, Ms. Gallant testified that she is a
“full-time mom,” lives with her boyfriend and daughter in an apartment, has her driver’s
license, dresses and bathes herself, is the primary cook in her household, and does
the grocery shopping, dishes and laundry. She testified that she gets migraines two
times per week and that they last for three to four hours, she takes migraine and
antidepressant medications, but the migraine medication “tends to make me sick.” She
testified that “I definitely have memory problems” and that “I get very confused and lost
kind of easily.” She also testified that “I get very frustrated easily, I’ve noticed” and “[i]f
something isn’t going right or something just bothers me, I get – I get mad and angry
very easily.” 95 Her sister testified at the hearing that Ms. Gallant’s temper had gotten

93

A.R. 290–292.

94

A.R. 100–02.

95

A.R. 59–63, 66, 69–70.

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worse, that “[s]he can go from being happy to really frustrated very easily.” 96
IV.

DISCUSSION

Ms. Gallant asserts that her disability benefits should be reinstated and continue
because “the residual effects of [her] traumatic brain injury continue to prevent her from
working.”

Specifically, Ms. Gallant alleges that the ALJ’s decision:

(1) “erred

fundamentally in disregarding the findings of Ms. Gallant’s most recent and thorough
neurological examination”; (2) “erred in its analysis of Ms. Gallant’s credibility”; and (3)
“erred in its analysis of medical improvement.” 97 The Commissioner maintains that the
ALJ: (1) “properly rejected Dr. Cherry’s opinion”; (2) “properly rejected [Ms. Gallant]’s
subjective complaints as not entirely credible”; and (3) “[Ms. Gallant] has not
demonstrated reversible harmful error in the ALJ’s analysis of medical improvement.” 98
A.

Dr. Cherry’s Opinion
1.

Legal Standard.

“Regardless of its source, [the SSA] will evaluate every medical opinion [it]
receive[s].” 99 Medical opinions come from three types of sources: those who treat the
claimant; those who examine but do not treat the claimant; and those who neither

96

A.R. 80.

97

Docket 23 at 1–24.

98

Docket 24 at 3–21.

99

20 C.F.R. §§ 404.1527(b), 416.927(c). Sections 404.1527 and 416.927 apply to claims filed
before March 27, 2017. Ms. Gallant initially filed her application for disability on November 26,
2008; accordingly, the Court applies §§ 404.1527 and 416.927 to her claim.

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examine nor treat the claimant. “As a general rule, more weight should be given to the
opinion of a treating source than to the opinion of doctors who do not treat the
claimant.” 100 The opinion of an examining physician “is, in turn, entitled to greater weight
than the opinion of a nonexamining physician.” 101
However, the ALJ is responsible for determining credibility and resolving conflicts
and ambiguities in medical testimony. 102 Factors relevant to evaluating any medical
opinion, including an examining physician such as Dr. Cherry, are: (1) the consistency of
the medical opinion with the record as a whole; (2) the physician’s area of specialization;
(3) the supportability of the physician’s opinion through relevant evidence; and (4) other
relevant factors, such as the physician’s degree of familiarity with the SSA’s disability
process and with other information in the record. 103
As recently explained by the Ninth Circuit,
To reject the uncontradicted opinion of a treating or examining doctor, an ALJ
must state clear and convincing reasons that are supported by substantial
evidence. If a treating or examining doctor's opinion is contradicted by
another doctor's opinion, an ALJ may only reject it by providing specific and
legitimate reasons that are supported by substantial evidence. The ALJ can
meet this burden by setting out a detailed and thorough summary of the facts
and conflicting clinical evidence, stating his interpretation thereof, and making
100

Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821,
830 (9th Cir. 1995)).
101

Lester, 81 F.3d at 830.

102

Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001) (citing Reddick v. Chater, 157 F.3d 715, 722
(9th Cir. 1998)).
103

20 C.F.R. § 416.927(c)(2). This section applies to claims filed before March 27, 2017. See §
416.325.

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findings. Additionally, the opinion of a nonexamining physician cannot by itself
constitute substantial evidence that justifies the rejection of the opinion of
either an examining physician or a treating physician. 104
2.

Analysis

Ms. Gallant asserts that the ALJ “erred fundamentally in disregarding the findings
of Ms. Gallant’s most recent and thorough neurological examination.” 105 Specifically, she
argues that the ALJ erred in rejecting Dr. Cherry’s opinion that Ms. Gallant’s “mood issues
are her most disabling condition from a neuropsychological perspective.” 106 Additionally,
she argues that in the Ninth Circuit, “courts use a ‘clear and convincing’ standard to review
an Administrative Law Judge’s rejection of treating physicians’ opinions.” 107
On August 21, 2013, Dr. Cherry administered multiple neuropsychological tests,
reviewed Ms. Gallant’s treatment records, and interviewed her and her mother. 108 Dr.
Cherry recommended Ms. Gallant reapply for social security disability, “although with the
right supports, and better stabilization of mood/sleep, [she] could be successful with
competitive employment in the future.” Further, Dr. Cherry opined that “[Ms. Gallant]’s
mood issues appear to be the most disabling condition from a neuropsychological
perspective, with attentional deficits only somewhat limiting.” He noted other clinicians

104

Revels v. Berryhill, 874 F.3d 648, 654–55 (9th Cir. 2017) (internal citations and quotations
omitted).

105

Docket 23 at 13.

106

Docket 23 at 13–16.

107

Docket 23 at 14–15.

108

A.R. 884–899.

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had said Ms. Gallant’s mood “should be entirely normal based on the fact that her MRI
was normal, although MRI is not useful in diagnosis of mood disorder or ADHD, and MRI
is also insensitive to subtle persisting effects from traumatic brain injury.” 109 In his letter
of July 14, 2014 to the SSA, 110 Dr. Cherry noted that Ms. Gallant’s symptoms were
“suggestive of hypomania, which is also part of mood disorder, including periods of
prolonged agitation where she cannot identify why she is angry, severe mood swings,
racing random thoughts, hyperverbality, and reduced need for sleep at times.”111 He
noted that “[h]er mother described a marked personality change following her motor
vehicle accident, describing the patient as “always passive/quiet,” but after the accident,
she is more “angry/aggressive.” 112
The ALJ found Dr. Cherry’s opinion regarding the disabling impact of Ms. Gallant’s
mood disorder “without evidentiary support” and gave it no weight. 113 Dr. Cherry was an
examining source; he did not provide treatment to Ms. Gallant. Because Dr. Cherry’s

109

A.R. 884–899.

110

The letter of July 14, 2014 was submitted by Ms. Gallant’s counsel to the Appeals Council on
August 1, 2014. The Ninth Circuit has held that “when a claimant submits evidence for the first
time to the Appeals Council, which considers that evidence in denying review of the ALJ’s
decision, the new evidence is part of the administrative record, which the district court must
consider in determining whether the Commissioner’s decision is supported by substantial
evidence.” See Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1159–60 (9th Cir. 2012);
see also Taylor v. Commissioner of Social Security Administration, 659 F.3d 1228, 1233 (9th Cir.
2011).
111

A.R. 342.

112

A.R. 887, 928.

113

A.R. 38.

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opinion regarding the severity of Ms. Gallant’s mood disorder was contradicted by the
opinions of examining physicians Dr. Fuller and Dr. Holladay, the ALJ may only reject the
opinion of Dr. Cherry for specific and legitimate reasons supported by substantial
evidence in the record. 114
The ALJ set out five reasons for discounting Dr. Cherry’s opinion that Ms. Gallant’s
mood disorder was disabling.

First, the ALJ found that “as Dr. Cherry noted,

neuropsychological testing revealed average intellectual and academic functioning; the
results of which are consistent with an earlier evaluation.”115 This is a specific and
legitimate reason to reject Dr. Cherry’s opinion that Ms. Gallant’s mood disorder was
disabling. And there is substantial evidence in the record that Ms. Gallant’s “performance
on tasks of academic achievement generally fell in the Average range,” as Dr. Cherry
himself found. 116 Other doctors made similar clinical observations. 117

114

Revels v. Berryhill, 874 F.3d 648, 654–55 (9th Cir. 2017) (internal citations and quotations
omitted).

115

A.R. 38.

116

A.R. 892.

117

For example, on October 22, 2008, after “informal” testing, Dr. Cho assessed Ms. Gallant’s
auditory comprehension, verbal expression, reading comprehension, written expression,
cognition, organization, memory, and social judgment as “with[in] functional limits.” A.R. 627.
After extensive neuropsychological testing on January 14, 2010, Dr. Fuller found that Ms.
Gallant’s Verbal IQ was 94, her Performance IQ was 114, and her Full-Scale IQ was 104. Dr.
Fuller found that Ms. Gallant’s academic functioning and learning and memory were low-average
to average for her age, her attention and concentration was mildly deficient to average, her mental
processing was “faster than average,” and language functioning was below average to average.
A.R. 768–69.

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Second, the ALJ found that “Dr. Cherry reported no clinical observations in support
of his opinion regarding Ms. Gallant’s ‘mood issues.’” 118 A review of Dr. Cherry’s report
shows no issues with Ms. Gallant’s mood during the evaluation. Although this finding by
the ALJ would not constitute substantial evidence on its own to support the ALJ’s rejection
of Dr. Cherry’s opinion, it is a specific and legitimate reason that supports the ALJ’s
decision.
Third, the ALJ noted a normal MRI and found that “while ‘TBI literature’ may
describe persisting mood and personality changes despite normal MRI findings, this is
not necessarily the case here, though I acknowledge that [Ms. Gallant] continues to
experience related limitations, if not as severe as Dr. Cherry believes.” 119 Although a
normal MRI may not, by itself, constitute substantial evidence on which to support the
ALJ’s rejection of Dr. Cherry’s opinion, it is another specific and legitimate reason that
supports the ALJ’s decision.
Fourth, the ALJ found that “Dr. Cherry’s opinion [that Ms. Gallant’s mood disorder
is disabling] is wholly unsupported by documented clinical findings from [Ms. Gallant]’s
treatment providers.” 120 But the record does contain some documented clinical findings
of a mood disorder – indeed, that was the basis of the original disability determination.
Thus, for the ALJ to state that Dr. Cherry’s opinion is “wholly unsupported” is not a

118

A.R. 38.

119

A.R. 38.

120

A.R. 38.

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legitimate reason for the ALJ’s rejection of his opinion. However, this error is harmless.
The ALJ legitimately relied on Dr. Fuller’s and Dr. Holladay’s opinions regarding the
severity of Ms. Gallant’s mood disorder. Dr. Holladay found her mood disorder to be “mild”
and Dr. Fuller opined that Ms. Gallant’s “cognitive abilities are remarkably intact, and thus,
she does not seem to have any limitations as far as returning to work.” 121
Fifth, the ALJ found that “in the absence of supporting objective and clinical
findings, I must assume that Dr. Cherry based his opinion heavily upon [Ms. Gallant]’s
subjective reports and [Ms. Gallant]’s mother’s subjective reports.” 122 Basing a medical
opinion on subjective complaints without objective clinical findings may be a specific and
legitimate reason for discrediting that opinion, particularly where, as here, the ALJ has
found the complainant to be not entirely credible. 123
In light of the reasons set forth above, the Court finds that the ALJ provided specific
and legitimate reasons for rejecting Dr. Cherry’s opinion regarding the severity of Ms.
Gallant’s mood disorder.

121

A.R. 770–72, 850.

122

A.R. 38. The Court has reviewed and considered Dr. Cherry’s July 14, 2014 letter; it does not
change the analysis. The letter is simply further explanation of his prior neuropsychological
evaluation. Dr. Cherry did not reevaluate Ms. Gallant or make additional clinical observations.
A.R. 928–29.

123

A.R. 32; Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004).

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B.

Ms. Gallant’s Credibility
1.

Legal Standard

An ALJ’s credibility assessment has two steps. 124

First, the ALJ determines

whether the claimant has presented objective medical evidence of an underlying
impairment that “could reasonably be expected to produce the pain or other symptoms
alleged.” 125 Second, “if the claimant has produced that evidence, and the ALJ has not
determined that the claimant is malingering, the ALJ must provide ‘specific, clear and
convincing reasons for’ rejecting the claimant’s testimony regarding the severity of the
claimant’s symptoms.” 126
In the first step, the claimant “need not show that her impairment could reasonably
be expected to cause the severity of the symptom she has alleged; she need only show
that it could reasonably have caused some degree of the symptom.” 127 On this point,
the ALJ held that Ms. Gallant’s mood disorder and cognitive/post-concussive disorder
with chronic headaches were medically determinable severe impairments. 128
In the second step, the ALJ evaluates the intensity and persistence of a claimant’s
symptoms by considering “all of the available evidence, including [the claimant’s] medical

124

Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014).

125

Lingenfelter v. Astrue, 504 F.3d 1028,1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th
Cir. 1991) (en banc)).

126

Treichler, 775 F.3d at 1102 (quoting Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.1996)).

127

Smolen, 80 F.3d at 1282.

128

A.R. 27.

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history, the medical signs and laboratory findings, and statements about how [the
claimant’s] symptoms affect her.” 129 If a claimant produces objective medical evidence
of an underlying impairment, the ALJ may reject testimony regarding the claimant’s
subjective pain or the intensity of symptoms, but must provide “specific, clear and
convincing reasons for doing so.” 130 The ALJ is required to “specifically identify the
testimony from a claimant she or he finds not to be credible and explain what evidence
undermines [that] testimony”; general findings are insufficient. 131
2.

Analysis

The ALJ found Ms. Gallant’s “statements concerning the intensity, persistence and
limiting effects” of her current medically determinable impairments were not “entirely
credible.” Specifically, the ALJ stated, “[Ms. Gallant]’s allegation that she experiences
disabling headaches and cognitive limitations is not supported by objective evidence,
her treatment seeking behavior, or her treatment providers’ observations.” 132
Ms. Gallant testified that she has migraines, usually twice a week, and takes
medication for them. 133 She also testified to having memory problems, that she “get[s]
very confused and lost kind of easily” and “do[es]n’t understand a lot of what’s going

129

20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1).

130

Smolen, 80 F.3d at 1281.

131

Treichler, 775 F.3d at 1102 (quoting Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001));
Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995).
132

A.R. 32.

133

A.R. 62–63, 69.

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on.” Ms. Gallant testified that she “get[s] very frustrated easily, I’ve noticed” and “[i]f
something isn’t going right or something just bothers me, I get – get mad and angry
very easily.”
The ALJ’s adverse credibility finding is supported by objective evidence in the
record, including an MRA showing “normal anatomy” and a “normal” MRI of the brain. 134
The CT scans taken soon after the traumatic brain injury showed improvement over a
relatively short time period. 135
Second, Ms. Gallant’s treatment seeking behavior suggests an improvement in her
mood and cognition. Ms. Gallant attended seven mental health therapy sessions from
November 2008 through March 2009, then had one more therapy session in January
2010 and another in September 2011. 136 At the neuropsychological evaluation in January
2012 with Dr. Holladay, Ms. Gallant reported that she had “been off Lexapro for 2 years
without mood problems.” 137 At medical visits, her treatment providers reported mood
problems only infrequently. 138

Dr. Cherry determined that Ms. Gallant’s “overall

performance across neuropsychological domains was entirely within normal limits.”139 He

134

A.R. 900–02.

135

A.R. 575, 638, 678, 681. The CT scans were taken on September 21, 2008, September 23,
2008, September 25, 2008, and October 9, 2008.

136

A.R. 714–18, 719–21, 756–62, 842–45.

137

A.R. 848.

138

A.R. 791–92, 806–16, 843, 847, 849.

139

A.R. 893.

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reported that “[a]lthough [Ms. Gallant] and her mother reported significant memory
problems, her memory functioning is quite good, sometimes better than peers, with her
perceived memory problems appearing best explained by attentional deficits.”140 At most
of Ms. Gallant’s appointments, Dr. Woods reported that Ms. Gallant denied “memory loss,
disorientation, syncope, diplopia, dizziness, vertigo, clumsiness, paresthesias, or
cephalgia.” 141
Third, Ms. Gallant first reported that she was suffering from migraines on April 5,
2012. 142

Thereafter, Dr. Woods’s treatment notes indicate that the medication she

prescribed was effective in treating the migraines. And, although Ms. Gallant testified at
the hearing in January 2014 that she has two migraines a week lasting three to four hours
and that Maxalt makes her sick, 143 Ms. Gallant reported to Dr. Woods in February 2013
that “she has a migraine headache two or three times a month,” but that the “Maxalt that
has been prescribed for her in the past has been very helpful.” 144
Based on the foregoing, the Court finds that the ALJ provided specific, clear and
convincing reasons supported by substantial evidence in the record for his
determination that Ms. Gallant’s allegations regarding the severity of her mood disorder,

140

A.R. 896.

141

A.R. 915–17.

142

A.R. 904.

143

A.R. 62–63

144

A.R. 277–92.

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headaches, and cognitive impairments were not wholly credible.
C.

Medical Improvement Analysis

1.

Legal Standard.

“The Commissioner may not terminate disability benefits without making findings
demonstrating that a claimant has medically improved to the point that she is able to
perform either her past work or “other work” existing “in significant numbers.”145
Medical improvement is defined as “any decrease in the medical severity” of a
claimant’s impairment and requires a “comparison of prior and current medical
evidence which must show that there have been changes (improvement) in the
symptoms, signs or laboratory findings associated with that impairment(s).” 146 The
Ninth Circuit has noted that “Congress enacted the medical improvement standard as
a safeguard against the arbitrary termination of benefits.” 147
To assess medical improvement, the ALJ should compare the medical severity of
the impairment “present at the time of the most recent favorable medical decision” to
the current medical severity of that impairment. The most recent favorable medical
determination is known as the comparison point decision (“CPD”). 148 The Ninth Circuit
has found that “[m]aking this comparison is straightforward in ordinary termination

145

Hayden v. Barnhart, 374 F.3d 986, 994 (10th Cir. 2004) (citing 20 C.F.R. § 404.1594 (f)(7)–(8)).

146

Id. at 875 (citing 20 C.F.R. § 404.1594(c)(1)).

147

Attmore v. Colvin, 827 F.3d 872, 876 (9th Cir. 2016).

148

20 C.F.R. §§ 404.1594(b)(1), 416.994(b)(1)(i).

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cases where the ALJ finds a claimant is disabled (or continues to be disabled) in one
decision and, in a later decision, finds the claimant has medically improved.” 149
If the ALJ determines that medical improvement has occurred, he next determines
if such medical improvement is related to the claimant’s ability to do work. 150 Medical
improvement is related to the claimant’s ability to work if “there has been a decrease in
the severity” of the impairment and “an increase in [the claimant’s] functional capacity
to do basic work activities.” 151 To make this determination, the ALJ follows a two-step
process. First, the ALJ assesses the claimant’s RFC based on the current severity of
the impairment at issue. Then, the ALJ compares the claimant’s new RFC to the RFC
at the CPD. 152 Finally, if the claimant is able to perform her past work or other work,
given her RFC and considering her age, education, and past work experience, she is
no longer disabled. 153
2.

Mood Disorder

Ms. Gallant argues that “[t]he Decision should have considered, but did not
consider, Ms. Gallant’s improvement in terms of the comparison points to which the
statutes and regulations call attention.” Specifically, Ms. Gallant argues that the ALJ
failed to accurately determine the comparison point date – the date on which Ms.
149

Attmore, 827 F.3d at 876.

150

20 C.F.R. §§ 404.1594(b)(3), 416.994(b)(2)(ii)

151

20 C.F.R. §§ 404.1594(b)(3), 416.994 (b)(1)(iii).

152

20 C.F.R. §§ 404.1594(c)(3)(ii), 416.994(b)(2)(iii).

153

20 C.F.R. §§ 404.1594(f)(7), 416.994(b)(5)(vi); 20 C.F.R. §§ 404.1594(f)(8), 416.994(b)(5)(vii).

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Gallant was most recently determined to be disabled. 154 At the outset of the ALJ’s
decision, it states, “[t]he most recent favorable medical decision finding that the
claimant was disabled is the determination dated May 22, 2013 [sic].” 155
The Commissioner acknowledges this statement in the ALJ’s decision constitutes
error: “the ALJ erred in this regard as the correct CPD in [Ms. Gallant]’s case was
instead dated April 22, 2009.” 156 The Commissioner maintains this error was harmless
because “the ALJ’s decision still considered [Ms. Gallant]’s condition as of the
appropriate CPD of April 22, 2009 in conducting his analysis by describing [Ms.
Gallant]’s condition in much the same way as the hearing officer did.” 157 The Court
agrees that the erroneous statement at the outset of the ALJ’s decision constitutes
harmless error. The statement was inconsequential to the ALJ’s ensuing reasoned
determination.

As the Appeals Council correctly noted, the ALJ’s decision

acknowledged Ms. Gallant’s 2008 motor vehicle accident, and provided “extensive
rationale showing improvement in the traumatic brain injury” thereafter. 158
Ms. Gallant also argues that the ALJ inadequately considered whether Ms.
Gallant’s mood disorder had improved. On this topic, the ALJ stated as follows:
The medical evidence supports a finding that, as of April 5, 2012, there had
154

Docket 23 at 19.

155

A.R. 27.

156

Docket 24 at 15. See also A.R. 147.

157

Docket 24 at 17.

158

A.R. 2.

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been a decrease in the medical severity of the impairments present at the
time of the CPD.
The medical evidence of record reveals a decrease in treatment for mental
health related symptoms. Moreover, neuropsychological testing revealed
no more than minimal limitations. Furthermore, [Ms. Gallant]’s treatment
records reveal no clinical evidence of significant mental impairment related
limitations. 159
The ALJ’s decision contains a thorough discussion of the medical evidence after April
2009 regarding Ms. Gallant’s mood and anxiety disorder and traumatic brain injury.
Specifically, the ALJ referenced the neuropsychological evaluations conducted by Dr.
Fuller in January 2010 and Dr. Cherry in August 2013, as well as the evaluation by
consulting psychiatrist David Holladay in January 2012.

He noted that the

neuropsychological evaluations “revealed normal intellectual functioning, low average to
average academic ability, and mildly deficient to average attention and concentration.”
The ALJ also noted that although Dr. Cherry diagnosed Ms. Gallant with mood disorder,
ADHD, migraines, and late effects of intracranial injury, Dr. Cherry “provided no opinion
as to specific limitations [Ms. Gallant] may experience as a result of her diagnosed
impairments.” 160
The ALJ also noted that at the evaluation by Dr. Holladay, Ms. Gallant “reported
that [she] had been off Lexapro for two years and had experienced no mood problems.”
He referenced Ms. Gallant’s counseling records and noted that her “counseling or therapy
appears to have stopped in September 2011.” He noted that “while Dr. Woods’ treatment

159

160

A.R. 30.
A.R. 35–36.

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notes reveal complaints of mood swings, ‘forgetfulness,’ and difficulty sleeping, Dr.
Woods’ examination records reveal no significant mental status abnormalities.” 161
In addition, the ALJ considered, and largely discredited, Ms. Gallant’s testimony as
well as the third party opinions of her mother, friend, and sister. He concluded that the
mother’s statements regarding Ms. Gallant’s “pain, headaches, irritability and other
symptoms reasonably related to her medically determinable impairments” are “out of
proportion” with the treatment evidence and objective and clinical evidence in the record.
He noted that the friend’s statements regarding Ms. Gallant’s symptoms “did not describe
anything that would necessarily result in disabling limitations” and neuropsychological
testing did not reveal that Ms. Gallant needs help making decisions. Finally, the ALJ
discounted the sister’s statements that Ms. Gallant “experiences confusion, memory loss,
pain, distractibility, and irritability,” and “has difficulty understanding and is socially
isolated” because Ms. Gallant “admitted that she is involved in a long-term relationship,
and spends time with others singing karaoke, playing pool, and watching movies.” 162
The Court finds that the ALJ adequately applied the correct legal standard and
substantial evidence supports his conclusion that Ms. Gallant’s traumatic brain injury and
mood disorder have improved after the favorable April 22, 2009 disability determination.
3.

Ability to Work

Ms. Gallant argues that the ALJ erred because his decision “does not indicate

161

A.R. 36.

162

A.R. 39.

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whether at the comparison point [in 2009], Ms. Gallant had been found disabled based
on the Listings or at step 5, and it makes no attempt to reconstruct residual functional
capacity for purposes of comparison.”163
The ALJ’s March 21, 2014 decision determined that Ms. Gallant’s “medical
improvement is related to the ability to work because it has resulted in an increase in
[Ms. Gallant]’s residual functional capacity.” Specifically, he determined that “[b]ased
on the impairments present as of the CPD, the residual functional capacity [Ms. Gallant]
has had since April 5, 2012 is less restrictive than the one [Ms. Gallant] had at the time
of the CPD.”164
In the last favorable decision on April 22, 2009, the state agency determined that
Ms. Gallant was disabled due to mental limitations and was “not capable of performing
other work” considering her “impairment, residual functional capacity, age, and work
experience.” 165 Although the state agency determination did not specify that it made
its decision at Step 5 of the disability determination process, because the agency
determined that Ms. Gallant was not capable of performing any work at that time based
on her age and work experience, RFC, and mental impairment, it is reasonable to infer

163

Docket 23 at 21. Sections 404.1594(b)(3)(iii) and 416.994(b)(2)(iv)(C) state that “[i]f the most
recent favorable medical decision should have contained an assessment of [the claimant’s]
residual functional capacity (i.e., [the claimant’s] impairments did not meet or equal the level of
severity contemplated by the Listing of Impairments in appendix 1 of subpart P of part 404 of this
chapter) but does not, either because this assessment is missing from [the claimant’s] file or
because it was not done, [the ALJ] will reconstruct the residual functional capacity.”

164
165

A.R. 30.
A.R. 127–28.

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that the state agency used step 5 as the basis for its disability determination. 166
Additionally, although the ALJ did not specifically reference Ms. Gallant’s previous
RFC, this error was harmless. First, the ALJ noted that “[a]t the time of the CPD,” Ms.
Gallant was found to be “unable to maintain adequate pace and persistence on a
consistent basis and unable to adequately cope with routine stresses and hassles in the
workplace.” 167 Second, on April 22, 2009, the state agency determined Ms. Gallant’s
RFC based on her mental residual functional capacity.

She was determined to be

“disabled” based on “[m]ental limitations only that are severe enough to preclude all
unskilled work.” 168
As part of his analysis of Ms. Gallant’s mental impairments to determine her current
RFC, the ALJ concluded that Ms. Gallant has mild restriction in daily activities, mild
difficulties in social functioning and moderate difficulties with regard to concentration,
persistence or pace. 169 He considered objective evidence, including the CT scans taken
in 2008 that showed improvement of her traumatic brain injury shortly after the accident,
the July 2012 MRA of the circle of Willis and MRI of the brain showing no abnormalities,
neuropsychological tests from January 2010 (Fuller), January 2012 (Holladay), and

166

20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).

167

A.R. 27. Although the ALJ cites an incorrect CPD date earlier in the decision, his language
quoted here regarding Ms. Gallant’s ability to work mirrors the functional capacity assessment of
April 22, 2009. A.R. 131.

168

A.R. 127–28.

169

A.R. 29–31.

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August 2013 (Cherry), and treatment notes by Dr. Woods from April 5, 2012 through
August 2012. 170
In sum, the ALJ’s decision that Ms. Gallant’s medical improvement was related to
her ability to work was supported by substantial evidence. Therefore, the Court finds a
“specific and legitimate inference” that the ALJ compared Ms. Gallant’s medical evidence
from the date of possible improvement to the medical evidence used to determine that
Ms. Gallant was disabled. 171
V.

ORDER

The Court, having carefully reviewed the administrative record, finds that the ALJ’s
determinations are free from harmless legal error and supported by substantial
evidence. Accordingly, IT IS ORDERED that Ms. Gallant’s request for relief at Docket 1
is DENIED and the Commissioner’s final decision is AFFIRMED.
The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 19th day of March, 2018 at Anchorage, Alaska.

/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

170

A.R. 32–38.

171

Attmore, 827 F.3d at 877 (“[T]he ALJ’s references to ‘improvement’ implied a comparison to
[the claimant’s] condition during the disability period, which the ALJ had just discussed. We can
therefore draw the ‘specific and legitimate inference[]” that the ALJ compared the medical
evidence from the date of possible improvement to the medical evidence used to determine that
[the claimant] was disabled.”).

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