Cannon v. Commissioner of Social Security

Filing 21

ORDER re 17 Motion for Reversal of Agency Decision. Final decision of the Commissioner is reversed and this matter is remanded for further proceedings. Signed by Judge H. Russel Holland on 12/31/18. (JLH, COURT STAFF)

WO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

ERIC MAURICE CANNON, JR.,

)
)
Plaintiff,
)
)
vs.
)
)
COMMISSIONER OF SOCIAL SECURITY, )
)
Defendant.
)
_______________________________________)

No. 3:18-cv-0127-HRH

ORDER
This is an action for judicial review of the denial of disability benefits under Title II
and Title XVI of the Social Security Act, 42 U.S.C. §§ 401-434, 1381-1383f. Plaintiff Eric
Maurice Cannon has timely filed his opening brief,1 to which defendant, the Commissioner
of the Social Security, has timely responded.2 Oral argument was not requested and is not
deemed necessary.
Procedural Background
On July 24, 2014, plaintiff filed applications for disability benefits under Title II and
Title XVI of the Social Security Act. Plaintiff alleged that he became disabled due to a
1

Docket No. 17.

2

Docket No. 19.
-1-

learning disability, head trauma, and migraine headaches. Plaintiff alleged that he became
disabled on November 28, 2013. Plaintiff’s applications were denied. Plaintiff requested a
hearing. After an administrative hearing on August 4, 2016, an administrative law judge
(ALJ) denied plaintiff’s claims. Plaintiff sought review of the ALJ’s unfavorable decision.
On March 29, 2018, the Appeals Council denied plaintiff’s request for review of the ALJ’s
decision, thereby making the ALJ’s December 12, 2016 decision the final decision of the
Commissioner.
On May 30, 2018, plaintiff commenced this action in which he asks the court to review
the final decision of the Commissioner.
General Factual Background
Plaintiff was born on February 11, 1991. Plaintiff was 25 years old at the time of the
administrative hearing. Plaintiff has a high school education. Plaintiff had an IEP throughout
his schooling and “qualifie[d] for special education services as learning disabled in the areas
of Math, Reading, and Written Expression.”3 Plaintiff’s past relevant work includes work as
an asbestos remover, roustabout, and event setup worker.
The ALJ’s Decision
The ALJ first determined that plaintiff “meets the insured status requirements of the
Social Security Act through June 30, 2014.”4

3

Admin. Rec. at 487.

4

Admin. Rec. at 20.
-2-

The ALJ then applied the five-step sequential analysis used to determine whether an
individual is disabled.5
At step one, the ALJ first found that plaintiff had “engaged in substantial gainful
activity during the following period: November and December 2014. . . .”6 However, the ALJ
also found that “there has been a continuous 12-month period(s) during which the claimant
did not engage in substantial gainful activity. The remaining findings address the period(s)

5

The five steps are as follows:
Step one: Is the claimant presently engaged in substantial
gainful activity? If so, the claimant is not disabled. If not,
proceed to step two.
Step two: Is the claimant’s alleged impairment sufficiently
severe to limit . . . h[is] ability to work? If so, proceed to step
three. If not, the claimant is not disabled.
Step three: Does the claimant’s impairment, or combination of
impairments, meet or equal an impairment listed in 20 C.F.R., pt.
404, subpt. P, app. 1? If so, the claimant is disabled. If not,
proceed to step four.
Step four: Does the claimant possess the residual functional
capacity (“RFC”) to perform . . . h[is] past relevant work? If so,
the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant’s RFC, when considered with the
claimant’s age, education, and work experience, allow . . . h[im]
to adjust to other work that exists in significant numbers in the
national economy? If so, the claimant is not disabled. If not, the
claimant is disabled.

Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).
6

Admin. Rec. at 20.
-3-

during which the claimant did not engage in substantial gainful activity.”7
At step two, the ALJ found that plaintiff had “the following severe impairments:
history of closed head[] injuries, seizures, migraine headaches, and cognitive disorder. . . .”8
The ALJ found that any functional limitations related to plaintiff’s diagnoses of intellectual
disability/borderline intellectual functioning and learning disorder were “adequately
accounted for by consideration of the claimant’s cognitive disorder as a severe impairment.”9
The ALJ found plaintiff’s diagnoses of attention-deficit/hyperactivity and depressive disorder
non-severe.10
At step three, the ALJ found that plaintiff did “not have an impairment or combination
of impairments that meets or medically equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1. . . .”11 The ALJ considered Listings 11.18
(cerebral trauma/traumatic brain injury) and 12.02 (neurocognitive disorder). The ALJ
considered the “paragraph B” criteria and found that plaintiff had mild restrictions in
activities of daily living; mild difficulties with social functioning; moderate to marked
difficulties with regard to concentration, persistence, or pace; and no episodes of

7

Admin. Rec. at 21.

8

Admin. Rec. at 22.

9

Admin. Rec. at 22.

10

Admin. Rec. at 22.

11

Admin. Rec. at 23.
-4-

decompensation, which had been of extended duration.12 The ALJ also found that the
“paragraph C” criteria were not satisfied.13
“Between steps three and four, the ALJ must, as an intermediate step, assess the
claimant’s RFC.” Bray v. Comm’r of Social Security Admin., 554 F.3d 1219, 1222–23 (9th
Cir. 2009). The ALJ found that plaintiff had
the residual functional capacity to perform a full range of work
at all exertional levels but with the following nonexertional
limitations: the claimant cannot climb ladders, ropes, or scaffolding; can have no exposure to unprotected heights; needs to avoid
concentrated exposure to non-weather extreme cold and extreme
heat; and needs to avoid concentrated exposure to excessive
vibrations. The claimant is also limited to working in places and
situations where there would be no more than normal commercial/industrial lighting and in which he would not be around
anyone who would be welding or causing any excessive flashing
or bright lights. Further, the claimant is limited to unskilled
work that does not involve the use of detailed written instructions.[14]
The ALJ found plaintiff’s symptom statements less than credible because they were
inconsistent with the medical evidence, because plaintiff had not sought regular neurological
treatment, because they were inconsistent with his daily activities, because they were
inconsistent with statements from plaintiff’s past employers, and because plaintiff called in

12

Admin. Rec. at 23-24.

13

Admin. Rec. at 24.

14

Admin. Rec. at 24.
-5-

sick or left early only 5 or 6 times during the course of working full-time for nine months.15
The ALJ gave great weight to Dr. White’s opinion.16 The ALJ gave little weight to Dr.
Roberts’ opinions.17 The ALJ gave partial weight to the opinions of Drs. Fraser and Russo.18
The ALJ gave little weight to Dr. Fuller’s opinion19 regarding plaintiff’s ability to be exposed
to noise but great weight to the rest of her opinion.20 The ALJ gave little weight21 to Dr.
Youngblood’s opinion.22 The ALJ gave little weight to Dr. Jones’ opinion23 that plaintiff

15

Admin. Rec. at 26-29.

16

Admin. Rec. at 30-31. Dr. White’s opinion is discussed below in detail.

17

Admin. Rec. at 31. Dr. Roberts’ opinions are discussed below in detail.

18

Admin. Rec. at 31-32. Dr. Fraser’s and Dr. Russo’s opinions are discussed below
in detail.
19

Dr. Fuller testified as a medical expert at the administrative hearing. Dr. Fuller
testified that plaintiff could not work in a “bright environment where the lights are really
bright or . . . where there are any major environmental things like extreme hot, extreme
cold. . . . Also [no] working at heights or on ladders[;]” but that he would have no other
restrictions. Admin. Rec. at 55-56.
20

Admin. Rec. at 32.

21

Admin. Rec. at 32.

22

On January 12, 2015, Keith A. Youngblood, Psy.D., did a neuropsychological
evaluation. Dr. Youngblood “recommended that Mr. Cannon apply for Social Security
disability to help ensure at least a subsistence income and medical coverage.” Admin. Rec.
at 1002.
23

On May 8, 2015, Laura Jones, Ph.D., opined that plaintiff had mild restrictions of
activities of daily living, moderate difficulties in maintaining social functioning; moderate
difficulties in maintaining concentration, persistence, or pace; and no repeated episodes of
decompensation. Admin. Rec. at 115. Dr. Jones also opined that plaintiff was not
(continued...)
-6-

requires clear and concise expectations and that plaintiff would do best in positions with
limited public and co-worker contact but great weight to the rest of her opinion.24 The ALJ
gave great weight to Dr. Hill’s opinion that plaintiff had no periods of decompensation for
extended periods and his opinion that plaintiff “is able to understand, remember, and followthrough with simple one-to-two step instructions.”25 The ALJ gave little weight26 to Dr.

23

(...continued)
significantly limited in his ability to remember locations and work-like procedures,
understand/remember/carry out very short and simple directions, perform activities within a
schedule, maintain regular attendance, be punctual within customary tolerances, work in
coordination with or in proximity to others without being distracted by them, interact
appropriately with the general public, get along with coworkers or peers without distracting
them or exhibiting behavioral extremes, maintain socially appropriate behavior, adhere to
basic standards of neatness and cleanliness, be aware of normal hazards and take appropriate
precautions, and travel in unfamiliar places or use public transportation; and was moderately
limited in his ability to understand/remember/carry out detailed instructions, sustain an
ordinary routine without special supervision, maintain attention and concentration for
extended periods, make simple work-related decisions, complete a normal workday and
workweek without interruptions from psychologically based symptoms, perform at a
consistent pace without unreasonable number and length of rest periods, ask simple questions
or request assistance, accept instructions and respond appropriately to criticism from
supervisors, respond appropriately to changes in work setting, and set realistic goals or make
plans independently of others. Admin. Rec. at 119-120. Dr. Jones further opined that
plaintiff would be able to “understand, remember and follow through with simple 1-2 step
instructions[,]” “would require a supervisor to provide clear and concise expectations[,]”
“would do best in positions with limited public and co-worker contact[,]” “may require extra
time [to learn tasks], but once learned, he can adapt to changes in the regular work
environment[,]” and “is capable of the basic mental demands of unskilled work.” Admin.
Rec. at 119-120.
24

Admin. Rec. at 33-34.

25

Admin. Rec. at 32-33. On March 24, 2015, David O. Hill, Ph.D., reviewed Dr.
Jones’ assessment and indicated that he agreed with Dr. Jones’ assessment as to plaintiff’s
understanding and memory limitations and her assessment as to decompensation. Admin.
(continued...)
-7-

Cherry’s opinion.27 The ALJ gave great weight28 to Dr. Moore’s opinion.29 The ALJ gave
some weight30 to the lay testimony of plaintiff’s sister,31 plaintiff’s mother,32 Terria Clayton,33

25

(...continued)
Rec. at 1008, 1010.
26

Admin. Rec. at 34.

27

On October 14, 2015, Russell S. Cherry, PsyD, examined plaintiff. Dr. Cherry
“[r]ecommend[ed] re-application for social security and related services. Without intensive
supports, the patient is not capable of steadily maintaining full-time competitive employment,
and his current employment is apparently supported to some degree, but he can do well with
the right intensive supports.” Admin. Rec. at 1028.
28

Admin. Rec. at 34.

29

Margaret Moore, Ph.D., testified as a medical expert. Dr. Moore testified that
plaintiff had mild limitations as far as daily activities and social functioning; moderate to
marked limitations as to concentration, persistence, or pace; and no episodes of
decompensation. Admin. Rec. at 68-70. Dr. Moore also testified that plaintiff would “benefit
from being able to . . . learn by watching what he’s supposed to do, and practicing and doing
it visually and with hands-on as opposed to, for example, reading a manual of instructions and
then setting off to do what he was asked to do in the manual.” Admin. Rec. at 69.
30

Admin. Rec. at 36.

31

Juli Cannon, plaintiff’s sister, provided an undated function report. Admin. Rec. at
298-306.
32

The ALJ considered statements made by plaintiff’s mother at doctor’s appointments,
in plaintiff’s medical history reports, and at the administrative hearing. Admin. Rec. at 77,
93, 725, 987.
33

Terria Clayton was plaintiff’s rep payee through Hope Community Resources.
Admin. Rec. at 642. She provided a detailed statement of plaintiff’s functional abilities.
Admin. Rec. at 640-641.
-8-

and Angela Gray.34 The ALJ considered the testimony of plaintiff’s former employers, Karl
Green and Greg Tyler, but did not assign any specific weight to their testimony.35
At step four, the ALJ found that plaintiff was “unable to perform any past relevant
work. . . .”36
At step five, the ALJ found that “there are jobs that exist in significant numbers in the
national economy that the claimant can perform” including work as a bagger/hand packer,

34

Angela Gray was plaintiff’s vocational rehabilitation counselor. On August 2, 2016,
she wrote:
Per our discussion at the time of your case closure, February
2015, your medical records indicate that you would be unable to
maintain employment until after you had started a regimen of
preventative medications for your severe and debilitating
migraines. You are encouraged to reapply for DVR services
after you and your doctor have agreed that the preventative
medication use has stabilized your migraines and that you would
be able to engage in work activities.
Admin. Rec. at 737.
35

Admin. Rec. at 28 and 29. Green reported that plaintiff had worked as a pipeline
laborer for three months in 2013 and that he was laid off and not let go for performance
related issues. Admin. Rec. at 689. Green reported that plaintiff “was able to do the work.
He called in a few times, but nothing major.” Admin. Rec. at 689. He reported that plaintiff
had no problem understanding and following simple job instructions, that he was able to
understand and follow more complex job duties, that he was able to maintain concentration
and attention adequately to complete his assigned job duties, that he worked “a little slower
than others, but got the job done,” that he got along with coworkers and supervisors, and that
he was always open to suggestions about how to do his job better. Admin. Rec. at 689-690.
Green indicated that he would rehire plaintiff. Admin. Rec. at 690. Tyler’s testimony is
discussed in detail below.
36

Admin. Rec. at 36.
-9-

laundry worker, or horticultural worker.37
The ALJ thus concluded that plaintiff had “not been under a disability, as defined in
the Social Security Act from November 28, 2013, through the date of this decision. . . .”38
Standard of Review
Pursuant to 42 U.S.C. § 405(g), the court has the “power to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the decision of the
Commissioner. . . .” The court “properly affirms the Commissioner’s decision denying
benefits if it is supported by substantial evidence and based on the application of correct legal
standards.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “Substantial evidence
is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.’” Id. (quoting Andrews
v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “‘To determine whether substantial evidence
supports the ALJ’s decision, [the court] review[s] the administrative record as a whole,
weighing both the evidence that supports and that which detracts from the ALJ’s conclusion.’” Id. (quoting Andrews, 53 F.3d at 1039). If the evidence is susceptible to more than
one reasonable interpretation, the court must uphold the Commissioner’s decision. Id. But,
the Commissioner’s decision cannot be affirmed “‘simply by isolating a specific quantum of
supporting evidence.’” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting

37

Admin. Rec. at 37-38.

38

Admin. Rec. at 38.
-10-

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)).
Discussion
Plaintiff first argues that the ALJ erred in giving Dr. White’s opinion great weight.
Dr. White was plaintiff’s primary care physician. On January 31, 2014, Dr. White “cleared”
plaintiff “to return to work without restrictions.”39 The ALJ gave great weight to this opinion
because “it is consistent with [th]e record as a whole showing that the claimant did not seek
neurological treatment from the alleged onset date to late July 2014 . . . , thus indicating that
he did not experience functional limitations to the extent he has alleged during this time
period.”40 The ALJ also gave Dr. White’s opinion great weight because he was plaintiff’s
primary care physician.41
Plaintiff argues that there are two problems with the ALJ assigning great weight to Dr.
White’s opinion. First, plaintiff argues that Dr. White’s opinion is not supported by his
treatment notes, since as the ALJ observed, plaintiff had not had significant treatment prior
to July 2014. Second, plaintiff contends that the ALJ’s attempt to explain plaintiff’s lack of
treatment fails. In a footnote, the ALJ noted that “[a]lthough there is indication that the
claimant did not have health insurance coverage during at least part of the period at issue . . . ,
there is no explanation as to why he was not eligible for such coverage under the provisions

39

Admin. Rec. at 988.

40

Admin. Rec. at 30-31.

41

Admin. Rec. at 31.
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of the Affordable Care Act.”42 Plaintiff contends that if the ALJ had questions as to his
insurance coverage, the ALJ should have brought this issue up at the administrative hearing.
Contrary to plaintiff’s argument, Dr. White’s opinion was supported by his treatment
notes. Dr. White’s notes indicate that while plaintiff had migraines, ranging from 1 or 2 a
month to 2-4 per year, his headaches responded well to Imitrex and Phenergan.43
As for the ALJ’s explanation that Dr. White’s opinion was consistent with the fact that
plaintiff did not seek treatment for his headaches from the alleged onset date in November
2013 until July 2014, the record does bear this out. Plaintiff did not seek any treatment for
his headaches during this time period. But, plaintiff is correct that it is not clear from the
record why he was not receiving treatment at that time. If it was because he lacked insurance
and could not afford treatment, that fact should not weigh against him. See Trevizo v.
Berryhill, 871 F.3d 664, 681 (9th Cir. 2017) (quoting Gamble v. Chater, 68 F.3d 319, 321 (9th
Cir. 1995)) (“‘Disability benefits may not be denied because of the claimant’s failure to
obtain treatment he cannot obtain for lack of funds.’”) The ALJ questioned why plaintiff
would not have had insurance under the Affordable Care Act, but the ALJ did not explore this
issue.
But, that does not necessarily mean that the ALJ erred as to Dr. White’s opinion. As
discussed above, Dr. White’s opinion was supported by his treatment notes. Thus, the ALJ

42

Admin. Rec. at 27.

43

Admin. Rec. at 911, 922, 929, 932.
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did not err in giving Dr. White’s opinion great weight.
Plaintiff next argues that the ALJ should have further developed the record after Dr.
Moore criticized Dr. Youngblood’s and Dr. Cherry’s testing methods. “The ALJ always has
a ‘special duty to fully and fairly develop the record and to assure that the claimant’s interests
are considered.’” Garcia v. Comm’r of Social Sec., 768 F.3d 925, 930 (9th Cir. 2014)
(quoting Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003)). “The ALJ’s duty to develop
the record fully is also heightened where the claimant may be mentally ill and thus unable to
protect h[is] own interests.” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001).
“Ambiguous evidence, or the ALJ’s own finding that the record is inadequate to allow for
proper evaluation of the evidence, triggers the ALJ’s duty to ‘conduct an appropriate
inquiry.’” Id. (quoting Smolen v. Chater, 80 F.3d at 1273, 1288 (9th Cir. 1996)). “The ALJ
may discharge this duty in several ways, including: subpoenaing the claimant’s physicians,
submitting questions to the claimant’s physicians, continuing the hearing, or keeping the
record open after the hearing to allow supplementation of the record.” Id.
Dr. Moore criticized Dr. Youngblood’s assessments of borderline intellectual
functioning and learning disabilities or disorders NOS.44 She explained that Dr. Youngblood
relied on “the WAIS-IV and the RADD” to reach his conclusions but that
[t]he RADD is not an ideal assessment for learning problems.
It’s a screening tool. It kind of gives an overview of where the
difficulties are, but overall . . . I thought that the learning
disorders were, . . . as revealed by the RADD, . . . really consis44

Admin. Rec. at 64.
-13-

tent with the claimant’s baseline IQ, and so many folks would
not even go to the actual level of saying there are learning
disabilities.[45]
As for Dr. Cherry, Dr. Moore testified that his administration of the WAIS-IV was “out of
the standard of acceptable testing practice” because he “leaves out some of the subtests.”46
Dr. Moore also found fault with Dr. Cherry’s evaluation because
[t]here are test[s] reported as administered but results are not
always provided in the report. I think that’s the case here. He
had documented on one report, he had some neurological notes
and that sort of thing, but his own assessment tools are not
always reported.[47]
Plaintiff argues that because Dr. Moore criticized the testing methods used by Dr.
Youngblood and Dr. Cherry, the ALJ should have either asked Dr. Moore if further testing
was needed to clarify their results or ordered new testing. Plaintiff argues that Dr. Moore
opined that the evidence in the record was flawed and thus the ALJ had a duty to further
develop the record.
Dr. Moore’s testimony did not trigger the ALJ’s duty to further develop the record.
Dr. Moore’s testimony did not create any ambiguities in the evidence. Rather, in criticizing
Dr. Youngblood’s and Dr. Cherry’s testing methods, Dr. Moore was explaining why her
opinion was different from theirs. Moreover, Dr. Moore testified that she had adequate

45

Admin. Rec. at 65.

46

Admin. Rec. at 66.

47

Admin. Rec. at 66.
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information on which to base her opinion. Dr. Moore testified that “I don’t think I need to
know anything more than what I already do”48 and that she had “enough evidence to have an
opinion as to the claimant’s medical status[.]”49 Dr. Moore also testified that the records from
plaintiff’s youth were not complete but that while such information would be “interesting and
historical”, it was not necessarily required to evaluate plaintiff in the “current timeframe.”50
Plaintiff next argues that the ALJ’s duty to further develop the record was triggered
by Greg Tyler’s testimony. Tyler was plaintiff’s former employer at the Egan Convention
Center. On August 4, 2016, Tyler wrote that plaintiff
was hired on 7/22/15 and his last day of employment was
4/30/16. Eric’s job title was conversion worker, his main duties
w[ere] to setup stages and chairs for multiple events and tear
down after events. It became clear early on to co-workers and
management that Eric had problems remembering and performing his duties when given multiple tasks. We had to ask all of
our employees and management to only assign Eric one task to
perform at a time because of his disability. I work[ed] with Eric
so he could make all of his appointments with his neurologist.
Eric called off or left work 5 to 6 times during his employment
with SMG because of se[vere] headaches.[51]
The ALJ considered Tyler’s testimony and found that it indicated that plaintiff’s
migraines

48

Admin. Rec. at 62.

49

Admin. Rec. at 62.

50

Admin. Rec. at 63-64.

51

Admin. Rec. at 739.
-15-

did not significantly interfere with his job performance. . . . Rather, although Mr. Tyler reported
that it became clear early on to both co-workers
and management that the claimant had problems
with remembering and performing his duties when
given multiple tasks, it was also reported that he
was nevertheless able to maintain his employment
in this position by being assigned only one task at
a time . . . .[52]
The ALJ also noted that “[a]lthough it was indicated that the claimant called in sick from
work or left work early approximately five or six times due to severe headaches, there is no
indication that this was a problem for this employer such that the claimant was let go as a
result.”53
Plaintiff argues that the ALJ should have further developed the record as to Tyler’s
testimony because Tyler did not expressly explain why plaintiff no longer worked for him.
Plaintiff also points out that Tyler indicated that he accommodated plaintiff’s medical
appointments and call outs and his limitations as to remembering instructions. Plaintiff
argues that the ALJ should have explored with the vocational expert whether these were
accommodations that all employers could reasonably be expected to provide or whether the
need for such accommodations would have eroded the number of jobs available for someone
with plaintiff’s limitations. Plaintiff also seems to suggest that the ALJ should have clarified
whether his work at the Egan Center was considered full time or part time.

52

Admin. Rec. at 29.

53

Admin. Rec. at 29.
-16-

Although Tyler did not indicate why plaintiff no longer worked at the Egan Center,
plaintiff testified that he stopped work because Dr. Roberts “just told me, you know what,
we’re taking – we’re just completely taking you off work until we get this [plaintiff’s
headaches] figured out.”54 This testimony is supported by Dr. Roberts’ treatment notes from
2016, in which he advises plaintiff to stop working. There was nothing further for the ALJ
to develop as to this issue.
As for whether plaintiff worked full time or part time, the record is clear that plaintiff
worked essentially full time at the Egan Center. The ALJ indicated55 that plaintiff had
testified that he worked “nearly” full time, working 38 hours a week,56 and other evidence
indicated that “[a]lthough it is technically part-time,” plaintiff was working 40 hours per week
at the Egan Center.57 There was nothing further for the ALJ to develop as to this issue.
As for the accommodations that were made by the Egan Center, Tyler stated that
plaintiff was limited to one task at time. The ALJ limited plaintiff to unskilled work. The
Social Security regulations define unskilled work as “work which needs little or no judgment
to do simple duties that can be learned on the job in a short period of time.” 20 C.F.R. §
416.968(a). While some unskilled work might only require an employee to do only one task

54

Admin. Rec. at 87.

55

Admin. Rec. at 29.

56

Admin. Rec. at 87.

57

Admin. Rec. at 1018.
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at a time, it is not clear that all unskilled work would encompass such a limitation. It is not
clear what impact, if any, plaintiff’s ability to only perform one task at a time would have on
his ability to sustain full-time employment. The ALJ should have further developed the
record as to this issue.
As to the call-out issue, Tyler stated that plaintiff called out 5-6 times in a nine-month
period. The ALJ noted that there was no indication that this level of call outs was a problem
for Tyler,58 but that does not necessarily mean that it would not be a problem for other
employers. The ALJ should have clarified with the vocational expert whether this number
of call-outs on a regular basis would preclude full-time employment.
Plaintiff next argues that the ALJ erred in rejecting Dr. Roberts’ opinions. On August
15, 2014, Dr. Roberts opined that
“[a]t present, although very unusual for me to state for migraine,
I believe that he is permanently (duration of at least 12 months)
and totally disabled from any meaningful employment that could
be available. This is my professional opinion. I do believe that
with ongoing and aggressive care, that we may be able to modify
his migraines in intensity, frequency and associated cognitive
difficulties, so that he is productive again. Until then, his
outlook for improvement and gainful employment is bleak.[59]
On May 4, 2016, Dr. Roberts
reiterate[d] that I believe that the patient is permanently (duration
of at least 12 months) and totally disabled from any meaningful
employment that could be available. This is my professional
58

Admin. Rec. at 29.

59

Admin. Rec. at 971.
-18-

opinion. This has proven to be true, with several attempts at
work, despite my warning, and subsequent requirement of
emergency services. . . . I do believe that with ongoing aggressive care, that we may be able to modify his migraine intensity,
frequency and associated cognitive difficulties so that he is
productive again. Until then, his outlook for improvement and
gainful employment is bleak.[60]
On June 2, 2016, Dr. Roberts “reiterated that it is my medical opinion that this patient is
permanently and totally disabled.”61
“If a treating or examining doctor’s opinion is contradicted by another doctor’s
opinion,” as Dr. Roberts’ opinions are, “an ALJ may only reject it by providing specific and
legitimate reasons that are supported by substantial evidence.” Trevizo, 871 F.3d at 675
(quoting Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). “‘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 findings.’” Id. (quoting
Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).
The ALJ rejected Dr. Roberts’ opinions because they are “inconsistent with the fact
that, at all of these appointments in which he opined that the claimant was disabled, the
results of contemporaneous neurological examinations were largely normal. . . .”62 The ALJ
also rejected Dr. Roberts’ opinions because they were “internally inconsistent with the fact

60

Admin. Rec. at 1036.

61

Admin. Rec. at 1046.

62

Admin. Rec. at 31.
-19-

that he consistently noted that with appropriate treatment of a more consistent and aggressive
nature, the claimant’s migraines may be able to be modified such that he would be productive
again. . . .”63 The ALJ also rejected Dr. Roberts’ opinions because they were “inconsistent
with the claimant’s report” at his June and August 2016 appointments “that, overall, he was
doing well on Topamax [and] had experienced a decreased frequency in his headaches. . . .”64
Finally, the ALJ rejected Dr. Roberts’ opinions because they were “internally inconsistent
with the fact that the claimant engaged in work activity at the level of substantial gainful
activity at the end of 201[3] and on nearly a full-time basis for a several-month period from
2015 to 2016.”65
Plaintiff only takes issue with the first reason given by the ALJ, which was that Dr.
Roberts’ opinion that plaintiff was unable to work was inconsistent with his normal
neurological exams. Plaintiff argues that given that the effects of migraines vary broadly
from person to person, it was not unreasonable for Dr. Roberts to opine that plaintiff was not
able to work even though there were no positive exam findings. Plaintiff suggests that the
ALJ should have contacted Dr. Roberts or ordered a consultative examination to determine
what impact his headaches were having on his ability to work.
The ALJ was not required to contact Dr. Roberts or order a consultative exam. An

63

Admin. Rec. at 31.

64

Admin. Rec. at 31.

65

Admin. Rec. at 31.
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ALJ may properly reject a medical opinion if it is not supported by clinical findings. Bayliss
v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). The ALJ did not err as to Dr. Roberts’
opinions.
Plaintiff next argues that the ALJ erred as to Dr. Fraser’s and Dr. Russo’s opinions.
On February 3, 2015, Shirley Fraser, M.D., opined that plaintiff could occasionally lift/carry
50 pounds, could frequently lift/carry 25 pounds, could stand/walk for 6 hours, could sit for
6 hours, was unlimited as to pushing/pulling, was unlimited as to reaching and handling, had
limitations as to fingering, and should avoid concentrated exposure to extreme cold, extreme
heat, noise, vibration, fumes, odors, dusts, gases, and poor ventilation.66 Dr. Fraser also
opined that if plaintiff “were to find a job, it would have to be very supervised and not
demanding.”67 On March 25, 2015, Libbie Russo, M.D., indicated that she agreed with Dr.
Fraser’s assessment.68
The ALJ only gave some weight to Dr. Fraser’s and Dr. Russo’s opinions that plaintiff
should avoid concentrated exposure to noise because “there is limited evidence to support a
finding that [plaintiff] has significantly limited functioning in the presence of noise or
pulmonary irritants. For example, music has been described as an ‘obsessive interest’ of the

66

Admin. Rec. at 117-118.

67

Admin. Rec. at 118.

68

Admin. Rec. at 1012.
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claimant. . . .”69
“The Commissioner may reject the opinion of a non-examining physician by reference
to specific evidence in the medical record.” Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir.
1998). Plaintiff takes issue with the ALJ’s rejection of the noise portion of Dr. Fraser’s and
Dr. Russo’s opinions because he contends that an appreciation for music is not the same thing
as consistent workday exposure to noise, such as factory noise.
While plaintiff may be correct that an appreciation for music is not the same thing as
exposure to noise in the workplace, the ALJ rejected Dr. Russo’s and Dr. Fraser’s opinions
about noise because there was limited evidence that this was a problem for plaintiff. This
finding is supported by the record. The only evidence that noise was an issue for plaintiff is
in a recommendation from Dr. Cherry. Dr. Cherry wrote that plaintiff “has a history of severe
migraines that precluded his employment as a construction worker, as they are triggered by
loud noise, which warrants consideration for any future programming for this patient.”70
Because this was the only evidence that plaintiff had an issue with noise, the ALJ did not err
as to Dr. Russo’s and Dr. Fraser’s noise opinions.
Plaintiff next argues that the ALJ’s RFC is flawed because it does not adequately
account for the ALJ’s finding that plaintiff had moderate-to-marked limitations as to
69

Admin. Rec. at 32. The ALJ also believed that Dr. Fuller had “opined that the
claimant needs to avoid a very noisy environment. . . .” Admin. Rec. at 32. But nowhere in
her testimony did Dr. Fuller expressly opine that plaintiff should avoid noise in the
workplace.
70

Admin. Rec. at 1029.
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maintaining concentration, persistence, or pace. At step two, the ALJ found that plaintiff had
moderate-to-marked difficulties with regard to concentration, persistence, or pace.71 The ALJ
then limited plaintiff to “unskilled work. . . .”72 This court has held that a limitation to simple
work “does not adequately address moderate limitations as to concentration, persistence, or
pace.” Jahnsen v. Berryhill, 265 F. Supp. 3d 992, 999 (D. Alaska 2017). Plaintiff argues that
the same is true of a limitation to “unskilled” work.
Defendant argues that the ALJ’s RFC adequately addressed plaintiff’s moderate-tomarked limitation as to concentration, persistence, or pace. Defendant contends that Dr.
Moore explained the nature and extent of this limitation. The ALJ asked Dr. Moore if there
was “anything specific in the concentration, persistence, pace where you find more limitations
than not?”73 In response, she answered that plaintiff would “benefit from being able to . . .
learn by watching what he’s supposed to do, and practicing and doing it visually and with
hands-on as opposed to, for example, reading a manual of instructions and then setting off to
do what he was asked to do in the manual.”74 Defendant argues that the ALJ then accounted
for plaintiff’s moderate-to-marked limitation as to concentration, persistence, or pace, as
defined by Dr. Moore, by limiting plaintiff to “unskilled work that does not involve the use

71

Admin. Rec. at 23-24.

72

Admin. Rec. at 24.

73

Admin. Rec. at 69.

74

Admin. Rec. at 69.
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of detailed written instructions.”75
While “simple” work and “unskilled” work are not the same, there is the same problem
here as there was in Jahnsen, namely that the ALJ failed to adequately account in plaintiff’s
RFC for a moderate-to-marked limitation as to concentration, persistence, or pace. Dr. Moore
did indeed testify that plaintiff would do better if he could learn tasks by doing, but that has
little to do with his ability to concentrate on a task, persist at a task, or maintain pace while
working. Dr. Moore’s testimony related to how plaintiff would best learn a task, not whether
plaintiff could stay on task for an 8-hour work day. Limiting plaintiff to unskilled work does
not capture the essence of a moderate-to-marked limitation as to concentration, persistence,
or pace. Thus, the ALJ’s RFC is flawed.
Finally, plaintiff argues that the ALJ erred at step five. At step five, the ALJ found
that “there are jobs that exist in significant numbers in the national economy that the claimant
can perform” including work as a bagger/hand packer, laundry worker, or horticultural
worker.76 All of these jobs require level 2 reasoning. “Level 2 requires an ability to ‘carry out
detailed but uninvolved written or oral instructions[,]’ and to ‘[d]eal with problems involving
a few concrete variables in or from standardized situations.’” Mejia v. Colvin, Case No. CV
15-00600-RAO, 2015 WL 6513650, at *3 (C.D. Cal. Oct. 28, 2015) (quoting DOT, App. C,
§ III). The ALJ found that plaintiff had the residual capacity to perform “unskilled work that

75

Admin. Rec. at 24.

76

Admin. Rec. at 37-38.
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does not involve the use of detailed written instructions.”77 Plaintiff argues that this precludes
work that requires level 2 reasoning. Plaintiff argues that if he cannot perform work that
involves the use of detailed written instructions, he would be precluded from doing any level
2 reasoning work.
Because level 2 reasoning requires the ability to carry out detailed written or oral
instructions, it may have been sufficient that plaintiff could only carry out oral instructions.
But because this matter must be remanded for further proceedings because of ALJ erred as
to Tyler’s testimony and plaintiff’s RFC, this is an issue the ALJ should further develop on
remand.
Conclusion
The final decision of the Commissioner is reversed and this matter is remanded for
further proceedings.
DATED at Anchorage, Alaska, this 31st day of December, 2018.
/s/ H. Russel Holland
United States District Judge

77

Admin. Rec. at 25.
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