Larsen v. Commissioner, Soc. Sec. Admin.

Filing 16

DECISION AND ORDER: IT IS ORDERED that Ms. Larsens request for relief at Docket 13 is DENIED, the Commissioners final decision is AFFIRMED. The Clerk of Court is directed to enter a final judgment accordingly. (See Order for details). Signed by Judge Sharon L. Gleason on 10/07/2019. (CME, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
GWENDOLYN GRACE LARSEN,
Plaintiff,
vs.
ANDREW SAUL, 1
Commissioner of Social Security,
Defendant.

Case No. 3:18-cv-00221-SLG

DECISION AND ORDER
On or about May 4, 2015, Gwendolyn Grace Larsen filed an application for
Disabled Widow’s Insurance Benefits under Title II of the Social Security Act (“the Act”) 2
alleging disability beginning October 15, 2010. 3

Ms. Larsen has exhausted her

administrative remedies and filed a Complaint seeking relief from this Court. 4
Ms. Larsen’s opening brief asks the Court to reverse and remand the agency
decision. 5 The Commissioner filed an Answer and a brief in opposition to Ms. Larsen’s

1

Andrew Saul is now the Commissioner of Social Security and is automatically substituted as a
party pursuant to Fed. R. Civ. P. 25(d). See also section 205(g) of the Social Security Act, 42
U.S.C. 405(g) (action survives regardless of any change in the person occupying the office of
Commissioner of Social Security).
2

The Court uses the term “disability benefits” to describe Title II Disabled Widow’s Insurance
Benefits herein.
3

Administrative Record (“A.R.”) 27, 200–02. The ALJ noted that in a brief dated December 30,
2016, Ms. Larsen amended her alleged disability onset date to October 15, 2010. A.R. 27, 52;
see also Docket 13 at 1.

4

Docket 1 (Larsen’s Compl.).

5

Docket 13 (Larsen’s Br.).

opening brief. 6 Ms. Larsen filed a reply brief. 7 Oral argument was not requested and was
not necessary to the Court’s decision. This Court has jurisdiction to hear an appeal from
a final decision of the Commissioner of Social Security. 8 For the reasons set forth below,
Ms. Larsen’s request for relief will be denied.
I.

STANDARD OF REVIEW

A decision by the Commissioner to deny disability benefits will not be overturned
unless it is either not supported by substantial evidence or is based upon legal error. 9
“Substantial evidence” has been defined by the United States Supreme Court as “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” 10 Such evidence must be “more than a mere scintilla,” but may be “less than
a preponderance.” 11 In reviewing the agency’s determination, the Court considers the
evidence in its entirety, weighing both the evidence that supports and that which detracts
from the administrative law judge (“ALJ”)’s conclusion. 12 If the evidence is susceptible to

6

Docket 11 (Answer); Docket 14 (Defendant’s Br.).

7

Docket 15 (Reply).

8

42 U.S.C. § 405(g).

9

Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citing Gonzalez v.
Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990)).

10

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

11

Perales, 402 U.S. at 401; Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975)
(per curiam).

12

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

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more than one rational interpretation, the ALJ’s conclusion must be upheld. 13 A reviewing
court may only consider the reasons provided by the ALJ in the disability determination
and “may not affirm the ALJ on a ground upon which she did not rely.” 14 An ALJ’s decision
will not be reversed if it is based on “harmless error,” meaning that the error “is
inconsequential to the ultimate nondisability determination . . . or that, despite the legal
error, the agency’s path may reasonably be discerned, even if the agency explains its
decision with less than ideal clarity.” 15 Finally, the ALJ has a “special duty to fully and
fairly develop the record and to assure that the claimant’s interests are considered.” 16 In
particular, the Ninth Circuit has found that the ALJ’s duty to develop the record increases
when the claimant is unrepresented or is mentally ill and thus unable to protect her own
interests. 17
II.

DETERMINING DISABILITY

The Act provides for the payment of disability insurance to individuals who have
contributed to the Social Security program and who suffer from a physical or mental

13

Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citing Rhinehart v. Finch, 438 F.2d 920,
921 (9th Cir. 1971)).
14

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

15

Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations
omitted).
16

Smolen v. Chater, 80 F.3d 1273,1288 (9th Cir. 1996) (quoting Brown v. Heckler, 713 F.2d 441,
443 (9th Cir. 1983)); see also Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014).
17

Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001).

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disability. 18 In addition, SSI may be available to individuals who are age 65 or older, blind,
or disabled, but who do not have insured status under the Act. 19 Disability is defined in
the Act as follows:
[I]nability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months. 20
The Act further provides:
An individual shall be determined to be under a disability only if his physical
or mental impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work
exists in the immediate area in which he lives, or whether a specific job
vacancy exists for him, or whether he would be hired if he applied for work.
For purposes of the preceding sentence (with respect to any individual),
“work which exists in the national economy” means work which exists in
significant numbers either in the region where such individual lives or in
several regions of the country. 21
The Commissioner has established a five-step process for determining disability
within the meaning of the Act. 22 A claimant bears the burden of proof at steps one through
four in order to make a prima facie showing of disability. 23 If a claimant establishes a

18

42 U.S.C. § 423(a).

19

42 U.S.C. § 1381a.

20

42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).

21

42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).

22

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

23

Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1096 n.1 (9th Cir. 2014) (quoting Hoopai
v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007)); see also Tackett v. Apfel, 180 F.3d 1094, 1098

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prima facie case, the burden of proof then shifts to the agency at step five. 24 The
Commissioner can meet this burden in two ways: “(a) by the testimony of a vocational
expert, or (b) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404,
subpt. P, app. 2.” 25 The steps, and the ALJ’s findings in this case, are as follows:
Step 1. Determine whether the claimant is involved in “substantial gainful activity.”
The ALJ concluded that Ms. Larsen had not engaged in substantial gainful activity since
October 15, 2010, the alleged onset date. ALJ LaCara also noted that Ms. Larsen was
“the unmarried widow of the deceased insured worker and had attained the age of 50,”
having also previously met the “non-disability requirements for disabled widow’s benefits
set forth in section 202(e) of the Social Security Act.” ALJ LaCara found the “prescribed
period ended on April 30, 2016.” 26
Step 2. Determine whether the claimant has a medically severe impairment or
combination of impairments. A severe impairment significantly limits a claimant’s physical
or mental ability to do basic work activities and does not consider age, education, or work
experience. The severe impairment or combination of impairments must satisfy the
twelve-month duration requirement. The ALJ determined that Ms. Larsen had the
following severe impairments: “very mild to minimal degenerative changes of the right
ankle, mild to moderate degenerative changes at the left thumb,” “[m]oderate
(9th Cir. 1999).
24

Treichler, 775 F.3d at 1096 n.1; Tackett, 180 F.3d at 1098 (emphasis in original).

25

Tackett, 180 F.3d at 1101.

26

A.R. 29.

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degenerative changes at the great toe,” and “apparent chronic fatigue syndrome.” The
ALJ found that Ms. Larsen’s history of glaucoma, small loose body in the right knee,
minimal osteoarthritis in the left knee medial compartment, complaints of shoulder pain,
and mental impairments of depression, anxiety, personality disorder were all non-severe
and did not result in significant vocational limitations. 27
Step 3. Determine whether the impairment or combination of impairments meets
or equals the severity of any of the listed impairments found in 20 C.F.R. pt. 404, subpt.
P, app.1 precluding substantial gainful activity. If the impairment is the equivalent of any
of the listed impairments, and meets the duration requirement, the claimant is
conclusively presumed to be disabled. If not, the evaluation goes on to the fourth
step. The ALJ determined that Ms. Larsen did not have an impairment or combination of
impairments that met or medically equaled the severity of a listed impairment. 28
Before proceeding to step four, a claimant’s residual functional capacity (“RFC”) is
assessed. Once determined, the RFC is used at both step four and step five. An RFC
assessment is a determination of what a claimant is able to do on a sustained basis
despite the limitations from her impairments, including impairments that are not severe. 29
The ALJ concluded that Ms. Larsen had the RFC to perform light work except she was
limited to lifting and carrying 20 pounds occasionally and 10 pounds frequently; sitting,

27

A.R. 30–31.

28

A.R. 33.

29

20 C.F.R. § 404.1520(a)(4).

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standing, and/or walking for six hours each total in an eight-hour workday; occasionally
handling with the left upper extremity; frequently fingering with the bilateral upper
extremities; and never climbing ladders, ropes, or scaffolds. 30
Step 4. Determine whether the claimant is capable of performing past relevant
work. At this point, the analysis considers whether past relevant work requires the
performance of work-related activities that are precluded by the claimant’s RFC. If the
claimant can still do her past relevant work, the claimant is deemed not to be disabled.
Otherwise, the evaluation process moves to the fifth and final step. The ALJ found that
Ms. Larsen was capable of performing past relevant work as a curriculum advisor. 31
Step 5. Determine whether the claimant is able to perform other work in the
national economy in view of her age, education, and work experience, and in light of the
RFC. If so, the claimant is not disabled. If not, the claimant is considered disabled. The
ALJ determined that although Ms. Larsen was capable of past relevant work, there were
also other jobs that existed in significant numbers in the national economy that Ms. Larsen
could perform, including appointment clerk and civil service clerk. 32
The ALJ concluded that Ms. Larsen was not disabled at any time from October 15,
2010 through May 2, 2017, the date of the decision. 33

30

A.R. 33.

31

A.R. 36. The VE testified this job was a sedentary position. A.R. 76.

32

A.R. 37–38.

33

A.R. 38.

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III.

PROCEDURAL AND FACTUAL BACKGROUND

Ms. Larsen was born in 1956; she is 63 years old. 34 She reported working as an
admissions advisor for the University of Alaska, Anchorage (“UAA”), from approximately
1997 to 2010 and an admission “specialist” for UAA prior to 1997. 35 On October 29, 2015,
the Social Security Administration (“SSA”) determined that Ms. Larsen was not disabled
under the applicable rules. 36 On December 28, 2015, Ms. Larsen timely requested a
hearing before an ALJ. 37 On January 13, 2017, Ms. Larsen appeared and testified with
representation at a hearing held before ALJ Cecilia LaCara. 38 On May 2, 2017, the ALJ
issued an unfavorable ruling. 39 On February 22, 2018, the Appeals Council denied Ms.
Larsen’s request for review. 40 Ms. Larsen timely appealed to this Court on September
26, 2018. 41

34

A.R. 201.

35

A.R. 70, 246, 274.

36

A.R. 27, 83.

37

A.R. 27, 101.

38

A.R. 58–71.

39

A.R. 24–38.

40

A.R. 1–6.

41

Docket 1. The Appeals Council had granted an extension of time to file the appeal. A.R. 8.

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Medical Records
Although Ms. Larsen’s medical records date back to 2007, the Court focuses on
the relevant medical records after the amended alleged disability onset date of October
15, 2010:
On November 12, 2010, Ms. Larsen had x-rays taken of her ankles. The right
ankle x-ray showed “very mild degenerative changes in the anterior tibiotalar joint” and
“minimal degenerative changes” at the inferior aspect of the medial gutter. The left ankle
x-ray showed that “[m]inimal degenerative changes may be present along the medial
corner of the talar dome.”

However, there was “no evidence of acute fracture or

dislocation of either ankle.” 42
On November 18, 2010, Ms. Larsen followed up with Mark Swircenski, PAC, at
Alaska Family Wellness Center. She reported having insomnia for 10 years, but at the
time of the visit, she was able to get about six hours of sleep a night. She also reported
that her husband had died in October; however, she denied any depression. 43
On December 3, 2010, Ms. Larsen visited PAC Swircenski at the Alaska Family
Wellness Center. She reported improved sleep after stopping her 3:00 p.m. dose of
caffeine. On physical examination, Ms. Larsen was “in no acute distress.” 44

42

A.R. 361.

43

A.R. 404.

44

A.R. 405.

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On December 14, 2010, Ms. Larsen saw PAC Swircenski. She reported insomnia
with “emotional stressors with the recent death of her husband and some [issues
resolving] the stepchildren and probate of the will.” She was in no acute distress upon
physical examination. 45
On January 13, 2011, Ms. Larsen saw PAC Swircenski for follow up regarding
insomnia. She reported that she was under increased stress with the recent death of her
husband. She was prescribed Ambien. 46
On February 17, 2011, Ms. Larsen initiated care with Ginger Scoggin, DNP, at
Manuka Health Clinic in Anchorage, Alaska. She reported a history of anxiety and
significant trauma with the death of her husband and taking care of her mother. She also
reported feeling anemic, cold, and “run down.” Ms. Larsen reported that she had been
on Ativan “for a few years and then went off it for 2 years,” but had started it again in
October 2010 and “it seem[ed] to be helping.” On physical examination, Ms. Larsen was
“[n]ormotensive, in no acute distress.” DNP Scoggin diagnosed Ms. Larsen with transient
disorder of initiating or maintaining sleep; generalized anxiety disorder; iron deficiency
anemia, unspecified; and unspecified vitamin D deficiency. DNP Scoggin refilled Ms.
Larsen’s Ativan prescription and prescribed Lunesta at the visit. 47
45

A.R. 406. Ms. Larsen followed up with PA Swircenski regarding insomnia and stress on
December 27, 2010, January 13, 17, 31, 2011, and February 14, 2011. A.R. 407–11.
46

A.R. 408. On January 17, 2011, Ms. Larsen called regarding her Ambien prescription. She
indicated that she was getting 5-6 hours of sleep with Ambien and woke up early. Her
prescriptions included Lorazapam and Ambien. Lorazapam is used to treat anxiety. See
https://www.webmd.com/drugs/2/drug-8892-5244/lorazepam-oral/lorazepam-oral/details.
47

A.R. 511. Ms. Larsen followed up with DNP Scoggin on December 13, 2011 and June 13, 2012.
A.R. 513–14. DNP Scoggin prescribed Valium at the June 2012 visit, but noted “that is not the

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On September 6, 2012, Ms. Larsen had x-rays of both knees. The right knee xray showed “[a] small loose intraarticular body” that was “questioned in the intercondylar
notch.”

The left knee x-ray showed “[m]inimal osteoarthritis in the medial knee

compartment,” but “[n]o acute osseous findings.” 48
On September 17, 2012, Ms. Larsen established care with Maggie Laurenberg,
PAC, at Willow Medical & Wellness. She reported insomnia, menopausal symptoms, and
right knee pain while running on the treadmill. She also reported that “she is seeking a
new relationship and will be traveling to see him in Minnesota.” On physical examination,
PAC Laurenberg observed that Ms. Larsen was a “[h]ealthy appearing female in no acute
distress.” 49
On October 24, 2012, Ms. Larsen presented to the emergency room after being
referred by the Providence crisis line for grief and depression. She reported grief and
pain associated with her husband’s death and the sale of the home she had lived in with
her husband. She reported chronic insomnia that had worsened in the past week. Ms.
Larsen was assessed as being at low imminent risk for suicide and low imminent risk for
violence. She was assessed with bereavement and adjustment disorder, but it was
determined she could be safely discharged. 50

answer” long term and “without proper nutrition first, she will continue to struggle.” A.R. 514.
48

A.R. 363–64.

49

A.R. 412–13, 524.

50

A.R. 325–31, 515–20.

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On October 31, 2012, Ms. Larsen saw Masao Yanagida, M.D., at Willow Medical
& Wellness. She reported that she had had a “breakdown” recently and went to the
emergency department at Providence. Ms. Larsen reported that she had continuing
problems with insomnia.

Dr. Yanagida diagnosed Ms. Larsen with depression and

anxiety. She also noted Ms. Larsen had glaucoma. She assigned Ms. Larsen a GAF of
50. Dr. Yanagida’s overall prognosis was “good” and she noted that Ms. Larsen’s level of
insight, baseline functioning, and support systems were good and her motivation to
engage in treatment was excellent. 51
On November 12, 2012, Ms. Larsen followed up with Michael Fischer, M.D., at
Alaska Family Wellness Center. She reported sensitivity to the cold, low weight, chronic
stress, and had questions about treatment for degenerative joint disease. On physical
examination she was “in no acute distress.” She was assessed with fatigue and malaise,
anxiety disorder, and osteoarthritis. 52
On November 26, 2012, Ms. Larsen followed up with Dr. Fischer. At the exam, Dr.
Fischer noted she was alert and oriented, friendly and cooperative, and had a “much more
animated appearance,” but Ms. Larsen reported using melatonin “all the time and feels
groggy along with distressed.”53

51

A.R. 292–98.

52

A.R. 420.

53

A.R. 422.

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On November 29, 2012, Ms. Larsen followed up with Dr. Yanagida. She reported
stress, insomnia, and knee pain. Dr. Yanagida assessed her anxiety and depression as
stable. 54
On December 19, 2012, Ms. Larsen had an x-ray of her right foot. The x-ray
showed “moderate nonuniform narrowing with osteophyte formation and subchondral
cyst formation at the metatarsal phalangeal joint of the great toe” with no fracture and a
small plantar calcaneal spur. 55
On January 2, 2013, Ms. Larsen saw Dr. Yanagida. She reported worsening
insomnia. Ms. Larsen also reported that her sleep was better before she developed
glaucoma in 2000. Dr. Yanagida observed that Ms. Larsen’s concentration, energy, and
appetite were normal; her behavior was within normal limits with good eye contact; her
thought process was linear and logical; she was alert and oriented; and her cognition was
grossly intact. 56
On January 4, 2013, Ms. Larsen followed up with Dr. Fischer. She reported doing
yoga regularly and exercising every day. Dr. Fischer observed that Ms. Larsen was
“visibly more animated, active and smiling.” He also noted that her knee x-rays were
“negative for degenerative joint disease, has loose body in the intercondylar space of the
right knee.” 57
54

A.R. 291.

55

A.R. 368.

56

A.R. 290.

57

A.R. 426.

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On January 14, 2013, Ms. Larsen initiated physical therapy at Advanced Physical
Therapy. She reported pain and stiffness in her left and right lower extremities. Zuzana
Rogers, PT, COMT, assessed Ms. Larsen with impairments “with endurance, joint
mobility, poor body mechanics and range of motion.” PT Rogers opined that “[t]hese
conditions warrant therapeutic intervention for the application of selective exercise and
specific mobilization to restore neuromuscular control and functional mobility.” PT Rogers
recommended physical therapy twice a week for eight weeks. 58
On February 26, 2013, Ms. Larsen saw Dr. Yanagida. She reported worsening
trembling in her legs, but improved sleep. Dr. Yanagida assessed Ms. Larsen with
depression, anxiety, and PTSD. 59
On March 11, 2013, Ms. Larsen saw Clara Scott, PAC. She reported insomnia
problems; that she napped on occasion from 30 minutes to two hours in the afternoons;
exercised one hour and 20 minutes four times per week on the treadmill, elliptical, and
bike; had several social circles; and went out with friends frequently.

On physical

examination, PAC Scott observed that Ms. Larsen was alert and cooperative and in no
acute distress. 60 On the same date, Ms. Larsen visited Dr. Yanagida. She reported
increased anxiety and concern about her insomnia, but she denied worsening depression.

58

A.R. 568–70. Ms. Larsen attended an additional physical therapy session on February 14,
2013. A.R. 535–36.
59

A.R. 289.

60

A.R. 429–30.

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She reported that her eye medications may be causing the insomnia. Dr. Yanagida made
no changes in Ms. Larsen’s medications. 61
On April 24, 2013, Ms. Larsen saw PAC Scott. She reported that her glaucoma
medication had been causing her insomnia for the past 13 years and that she had stopped
taking her glaucoma medication drops and insomnia medications. She reported walking
and socializing daily at yoga or having lunch with friends. She reported that she would
be traveling to Houston in May and that “everyone [was] telling her she [was] depressed.”
On physical examination, PAC Scott observed that Ms. Larsen was not in acute distress.
PAC Scott recommended cognitive behavioral therapy instead of medications for Ms.
Larsen’s insomnia. 62
On April 26, 2013, Ms. Larsen saw Dr. Yanagida. She reported insomnia, but she
denied depression and anxiety. Dr. Yanagida “encouraged [Ms. Larsen] to live [with]
insomnia” and recommended diet and exercise. 63
On September 11, 2013, Ms. Larsen initiated care with Beth Baker, M.D., at
Providence Alaska Medical Center. She reported having insomnia. She queried if she
might be a candidate for social security disability because of her insomnia. Dr. Baker
recommended adjustments in Ms. Larsen’s sleeping schedule. Dr. Baker “informed [Ms.

61

A.R. 288.

62

A.R. 432–33.

63

A.R. 287.

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Larsen] I did not think that she [was] disabled from insomnia and that I [did] not think she
warranted Social Security disability for this.” 64
On December 11, 2013, Ms. Larsen visited Dr. Fischer. She reported that she was
“feeling much stronger” and had done “some extended travel to the lower 48.” She
reported stopping all her medications. On physical examination, Dr. Fischer observed
“positive focal tenderness over dorsal wrist at lunate.” He also noted Ms. Larsen was
alert and oriented; friendly and cooperative. 65 On the same date, Ms. Larsen had an xray of her left hand. The x-ray showed “[d]egenerative changes . . . at the radioscaphoid
joint and at the first carpometacarpal joint,” but that “[o]therwise, the remainder of the left
hand appears to be within normal limits.” 66
On January 3, 2014, Ms. Larsen saw Dr. Fischer for prolotherapy for her left hand
and wrist.

Ms. Larsen reported insomnia.

Dr. Fischer diagnosed Ms. Larsen with

degenerative joint disease, insomnia, and menopause. 67
On February 6, 2014, Ms. Larsen followed up with Dr. Fischer. She reported
improvement in her joints, but still had “some residual discomfort involving her left thumb.”
She reported her wrist was entirely pain-free at the time. She did not report any sleep
problems at that visit. On physical examination, Dr. Fischer observed positive tenderness
in the CMC joint of the left thumb, but that the “dorsal CMC joint and region along [the]
64

A.R. 749–52.

65

A.R. 439.

66

A.R. 369.

67

A.R. 442.

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posterior hand previously injected all appear to be nontender to palpation [with an] active
range of motion.”68
On February 10, 2014, Ms. Larsen followed up with PAC Scott. She reported doing
yoga two to three times per week and aerobic exercise on the treadmill, elliptical, or
walking outside four to five times per week. She reported that she was “just now getting
back on track with the sleep.” She reported starting a new romantic relationship. On
physical examination, PAC Scott observed that Ms. Larsen was well nourished, well
developed, alert and cooperative, well groomed, and appeared in no acute distress. 69
On February 25, 2014, Ms. Larsen saw Dr. Fischer for prolotherapy in her hand.
She also reported improved sleep, but “some anxiety in the afternoon.” 70
On July 7, 2014, Ms. Larsen saw Bethany Buchanan, DNP, at Avante Medical
Center. She reported “not sleeping well.” She denied depression, bipolar disorder, and
anxiety. DNP Buchanan noted that Ms. Larsen “seemed a little out of it,” but that her
physical exam was normal. DNP Buchanan prescribed thyroid medication. 71
On July 22, 2014, Ms. Larsen followed up with DNP Buchanan. She reported that
“overall she is better” and that she had decided to go back to work, but she hoped “not
too soon.”

She reported that her sleep had improved “tremendously” and she felt

68

A.R. 455.

69

A.R. 459–60.

70

A.R. 466.

71

A.R. 717–20. Ms. Larsen followed up regularly at Avante Medical Center from October 3, 2014
through June 26, 2015. A.R. 634–95. On February 23 and March 12, 2015, Christine Sagan, NP,
noted “difficulty with memory, retention.” A.R. 673, 677.

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“comfortable in taking a job.” On physical examination, DNP Buchanan observed that
Ms. Larsen was “well overall” and alert and oriented to person, place, and time. Ms.
Larsen denied feeling sad or worried. 72
On September 9, 2014, Ms. Larsen saw DNP Buchanan. She reported that her
sleep had improved, but that she still occasionally had nights that she didn’t sleep well.
She also reported walking five miles and “felt bad afterwards” as she was tired, stiff, and
sore. On examination, DNP Buchanan observed that Ms. Larsen looked well and was
alert and oriented, but “sound[ed] depressed.” 73
On February 5, 2015, Ms. Larsen initiated counseling with Doris Bergeron, LCSW,
seeking to address sleep issues. On examination, LCSW Bergeron observed that Ms.
Larsen was casual and neat in appearance; had a cooperative attitude; normal speech;
a stable appetite and weight; was distracted and did not have a good memory; had normal
perception; logical and coherent thought processes; and fair insight and judgment. 74
On February 23, 2015, Ms. Larsen saw Christine Sagan, NP, at Avante Medical
Center. She reported that she had been having night sweats and that she had started

72

A.R. 723–24.

73

A.R. 725–32. Ms. Larsen followed up regularly at Avante Medical Center from October 3, 2014
through June 26, 2015. A.R. 634–95. On February 23 and March 12, 2015, Christine Sagan, NP,
noted “difficulty with memory, retention.” A.R. 673, 677.

74

A.R. 753–58. Ms. Larsen attended counseling sessions with LCSW Bergeron every two weeks
regularly from February 2015 until approximately November 28, 2016. A.R. 759–825. Many of
the entries report sleeping difficulties, but on March 12, 2015, Ms. Larsen reported sleeping
consistently 5-6 hours and that she had had 8 hours of the sleep the night before and “felt like her
old self.” A.R. 672. However, on May 10, 2016, Ms. Larsen reported having “a ‘relapse’ with her
chronic fatigue syndrome.” A.R. 778.
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testosterone. Ms. Larsen stated, “this changed things negatively.” She reported sleeping
4-7 hours at night and that she was able to sleep slightly better “when she eats a large
meal at night.” NP Sagan noted that Ms. Larsen “has had years of malaise, stress,
insomnia and fatigue” and “[t]his has prevented her from work.” 75
On June 15, 2015, Ms. Larsen visited NP Sagan. She reported fatigue. NP Sagan
assessed Ms. Larsen with menopause, insomnia, fatigue, constipation, irritable bowel
syndrome, shoulder pain, pain in lower limb, food allergy, low back pain, neck pain,
hypothyroidism, depressive disorder, and shoulder joint pain. NP Sagan opined that Ms.
Larsen was “stable,” noting “[h]er fatigue is present but she has made progress.” 76
On June 26, 2015, Ms. Larsen saw DNP Buchanan for shoulder pain and low back
pain. She reported switching her activities and getting better sleep. DNP Buchanan
assessed Ms. Larsen with osteoarthritis, degenerative joint disease of the hand, fatigue,
menopause, insomnia, and constipation. 77
On October 13, 2015, Ms. Larsen saw William Campbell, M.D., for a psychiatric
disability evaluation. She reported that in 2010 her fatigue and cognitive defects cause
her work performance to decline. She reported retiring from University of Alaska in 2010
and that “part of the reason that she retired was that she wanted to be able to visit with
[her two children in Texas] more often.” She reported some dating, having long-term

75

A.R. 676–79.

76

A.R. 642–43.

77

A.R. 634–39.

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friends, taking belly dancing lessons, going to yoga classes three times a week, and
walking a mile or two every day for exercise. Dr. Campbell observed that Ms. Larsen was
“[s]tylishly groomed and dressed”; was on time and friendly; had normal speech, thought
content, memory, and fund of knowledge; was alert and oriented; could calculate fairly;
and had good spelling. Dr. Campbell noted that Ms. Larsen did poorly with serial 7’s. He
also noted that her insight and judgment were fair. He diagnosed Ms. Larsen with
cognitive disorder, not otherwise specified; dependent personality disorder; glaucoma;
myalgias and arthralgias; and a GAF score of 70. Dr. Campbell noted that Ms. Larsen
complained of cognitive defects and “[o]n examination, she had to be coaxed to give
maximum effort.” He opined that Ms. Larsen would be competent to manage her own
benefits and that her prognosis was good. Dr. Campbell noted that Ms. Larsen found
psychotherapy “to be quite helpful in examining her dependency needs and in grieving
her late husband.”78
On October 21, 2015, Ms. Larsen saw Ernest Meinhardt, M.D., at Independence
Park Medical Services, for a physical examination. She reported that her insomnia onset
in 2000, but that “since establishing with her new Avante Clinic her insomnia has pretty
much resolved and is under control” and she “feels rested.” She reported that she had
anxiety, but she denied needing medications.

Ms. Larsen also denied that anxiety

interfered with her activities of daily living. She reported discontinuing ocular drops for
glaucoma and that her eye pressure remained stable. Ms. Larsen reported bilateral

78

A.R. 735–38.

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shoulder pain, but that following up with a chiropractor and having massage therapy “has
pretty much alleviated her symptoms” and that the pain did not “interfere with her daily
activities.” Ms. Larsen also reported left wrist pain and had decreased range of motion,
but adequate grip strength. Dr. Meinhardt noted that Ms. Larsen “apparently has chronic
fatigue syndrome.” 79 On the same date, Ms. Larsen had an x-ray of her left wrist. The xray showed “[s]evere degenerative change in radiocarpal compartment, joint space
narrowing, and intense sclerosis” and “[m]ild degenerative change first carpal-metacarpal
articulation.” 80
On October 29, 2015, Myung Song, D.O., a state medical consultant, reviewed
Ms. Larsen’s medical records. Based on that review, Dr. Song opined that Ms. Larsen
could perform light duty work and was capable of returning to her prior job as an
admission counselor, with additional manipulation limitations based on her left wrist
impairment.” 81 On the same date, state medical consultant, Michael Dennis, Ph.D.,
opined that Ms. Larsen’s mental disorders were non-severe. Dr. Dennis opined that Ms.
Larsen had a mild restriction of her activities of daily living; mild difficulties in maintaining
social functioning; and mild difficulties maintaining concentration, persistence, or pace. 82
The medical records for 2016 consist only of treatment records from LSCW
Bergeron.
79

A.R. 745–48.

80

A.R. 742.

81

A.R. 94. Ms. Larsen reported that she was right-handed in her function report. A.R. 255.

82

A.R. 89–94.

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On January 13, 2017, Allison Kelliher, M.D., at Vitae Integrative Medical Center,
wrote a letter indicating that she had been Ms. Larsen’s primary care provided since
September 2016.

Dr. Kelliher noted that Ms. Larsen saw her regularly for “[m]ajor

depression, generalized anxiety, chronic pain syndrome, fibromyalgia, chronic low back
pain, osteoarthritis, menopausal syndrome, impaired cognition, memory impairment, and
insomnia. Dr. Kelliher opined that Ms. Larsen’s “extreme fatigue, impaired concentration
and polyarthralgias limit her ability to work” and that Ms. Larsen “currently finds it very
challenging to meet the demands of her daily life.” Dr. Kelliher also noted that Ms. Larsen
was “quite motivated however to get well despite her limitations and participates in
activities such as meditation and yoga and therapy.” 83
The following medical records were submitted to the Appeals Council after ALJ
LaCara’s May 2, 2017 decision:
On June 20, 2017, Ms. Larsen had MRIs of her thoracic and cervical spine. The
MRIs showed a small disc protrusion at T6-7 and T7-8 resulting in no stenosis and early
disc degeneration in the mid-cervical spine with “[u]ncovertebral spurring contributing to
neuroforaminal stenoses at a few levels, most pronounced (moderate in severity) at C5–
6 on the left.” 84
On October 2, 2017, LCSW Bergeron wrote a letter summarizing Ms. Larsen’s
treatment with her. LCSW Bergeron noted that Ms. Larsen had been in psychotherapy

83

A.R. 828. The letter is dated January 13, 2016, but the year appears to be a typographical
error. No treatment records from Dr. Kelliher are in the record.

84

A.R. 17–18, 20.

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since February 5, 2015, with breaks from November 9, 2015 to March 2, 2016 and April
18, 2017 until September 12, 2017. She also noted that initially Ms. Larsen reported
sleep issues, difficulty with concentration and memory, and feeling overwhelmed with
daily tasks. Only the first page of LCSW Bergeron’s summarization letter is included in
the Court’s record. 85
On October 3, 2017, Dr. Kelliher wrote a letter on Ms. Larsen’s behalf. Dr. Kelliher
noted that Ms. Larsen originally “carried the diagnosis of fibromyalgia with depression
and PTSD.” She also stated that “after conservative treatment, we initiated a work up for
her chronic neck and back pain by obtaining [an] MRI.” Dr. Kelliher described Ms.
Larsen’s MRI results from June 2017, noting that “her cervical imaging is notable for facet
arthropathy, and DDD with moderate foraminal stenosis resulting in cervical
radiculopathy” and mid-thoracic degenerative disc disease at T6-8 “which generates a
tremendous amount of pain for her despite efforts in PT, massage therapy and maximal
medication management.” Dr. Kelliher indicated that “[Ms. Larsen] finds these pains quite
debilitating and they certainly interrupt her quality of life and activities of daily living” and
that Ms. Larsen’s “picture [was] somewhat complicated by her history of depression, this
may also be exacerbated by her pain.”86

85

A.R. 23.

86

A.R. 22.

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Hearing Testimony on January 13, 2017
Ms. Larsen attended a hearing before ALJ LaCara on January 13, 2017 with an
attorney representative. She testified that she worked as an enrollment advisor from 1997
to 2010 and before that time, she had worked as an admission specialist. She reported
that she retired from UAA in approximately 2009. Ms. Larsen also testified that she
travelled once a year to meet with family in Houston, Texas, but denied traveling to meet
a romantic interest out of state. 87 She testified that after waking up each morning, she
warmed up a microwave dinner and then laid back down. She indicated that she spent
her day resting, going to a yoga class, doing housework, listening to music, watching
television, working on her iPad, and reading. She testified that she could make her bed
every day, do laundry, spend time on the computer, and grocery shop, but she had a
housekeeper clean the house once a month. She testified that she would wake up two
to three times during the night. Ms. Larsen reported that she had a driver’s license and
could drive. She also reported that she could manage buttons and zippers; walk with
friends at a slow pace one time per week for two to three miles; and stand in her kitchen
for an hour to an hour and a half. She testified that she would have difficulty sitting at a
clerical job. She also testified that she could add, subtract, and make change. 88
Margaret Moore, Ph.D., testified as the psychological expert at the hearing, based
on her review of the records. She testified that Ms. Larsen did not meet or equal the new

87

In a treatment note from September 2012, Ms. Larsen discussed “seeking a new relationship”
and that she was “traveling to see him in Minnesota.” A.R. 416.
88

A.R. 58–71.

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mental health listings. 89 She opined that Ms. Larsen’s mental impairments were nonsevere or “mild.” She stated, “I would note that just from my point of view, a clinical point
of view, this woman seems to be quite actively engaged in the world, functioning really
quite well.” Dr. Moore noted that although there were “periods of time in this broad time
span where she did have depression . . . much of that . . . was situationally driven.” Dr.
Moore noted that Ms. Larsen was dating frequently, going out with friends, traveling, and
was capable of handling “very complex things, such as the sale of the home and moving.”
Dr. Moore also discussed Ms. Larsen’s chronic insomnia, stating, “some time in 2013, her
doctors discovered that her medications that she was taking for glaucoma, a physical
condition . . . were causing her insomnia. And once you removed and stopped taking
those meds, her sleep issues resolve.” Dr. Moore concluded that Ms. Larsen’s sleep
problem was not attributable to depression or anxiety, but a medication side effect. 90

89

Dr. Moore’s testimony at the January 2017 hearing was based on the new mental health listings,
effective January 17, 2017. A.R. 54. The new “B” criteria assess an individual’s ability to: 1)
understand, remember, or apply information; 2) interact with others; 3) concentrate, persist, or
maintain pace; and 4) adapt or manage oneself. 20 C.F.R. Pt. 404, Subpt.P, App.1.
The Social Security Administration’s Revised Medical Criteria for Evaluating Mental Disorders
states that the new mental health listings are applied to “new applications filed on or after the
effective date of the rules, and to claims that are pending on or after the effective date.” In a
footnote, the SSA clarified that this means the SSA will use the final rules “on and after their
effective date, in any case in which we make a determination or decision. We expect that federal
courts will review our final decisions using the rules that were in effect at the time we issued the
decisions. If a court reverses our final decision and remands a case for further administrative
proceedings after the effective date of these final rules, we will apply these final rules to the entire
period at issue in the decision we make after the court’s remand.” See Social Security
Administration’s Revised Medical Criteria for Evaluating Mental Disorders, 81 FR 66138-01,
available at 2016 WL 5341732 at *66138 and n.1.
90

A.R. 50–58.

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William Weiss testified as the vocational expert. Based on the ALJ’s hypothetical,
he opined that Ms. Larsen could perform her past work as a curriculum advisor. 91 He
also testified that in the alternative, there were jobs that existed in the national or regional
economy that Ms. Larsen could perform, including an appointment clerk and civil service
clerk. 92

Ms. Larsen’s Function Report
Ms. Larsen completed a function report on June 25, 2015. She reported that she
experienced a lack of concentration and memory; had problems with sleep; experienced
increased malaise; and had depression or a “mood problem.” She reported living alone
in a townhouse; had no problems with self-care; and spent her days on “[l]ots of bed rest.”
She also indicated that it took her one hour to prepare meals and that she would “bake
meat” and have “salad from restaurants.” She reported that she could clean the house;
do laundry; went outside daily; could shop in stores, by phone, and by computer; went to
restaurants; read and watched television. Ms. Larsen reported being able to walk one to
two miles before needing to stop and rest. She reported that she had changes in her
concentration and memory and needed to be reminded to go places “about twice a week”
91

The ALJ’s hypothetical at the hearing was as follows:
[L]et’s assume that we have an individual the same age, education and work
experience as that of Ms. Larsen who is limited in the following manner: This
person is limited to light work. This person is never to climb any ladders, ropes or
scaffolds. This person is limited to handling occasionally on the left. Fingering is
limited to frequent. A.R. 76–77.

92

A.R. 78–79.

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and needed someone to accompany her “sometime[s].” She reported she had “no
energy” and her conditions affected lifting, squatting, bending, standing, reaching,
walking, stair climbing, memory, completing tasks, concentration, and understanding. 93
IV.

DISCUSSION

Ms. Larsen is represented by counsel. In her opening brief, Ms. Larsen asserts
the following errors: (1) the Appeals Council erroneously failed to consider the additional
evidence Ms. Larsen put before the Council; (2) the ALJ failed to fully and fairly develop
the record regarding Ms. Larsen’s chronic fatigue syndrome; (3) the RFC is not supported
by substantial evidence because it failed to take Ms. Larsen’s chronic fatigue syndrome
into account; and (4) the ALJ improperly discounted the opinion of examining expert Dr.
Campbell and gave undue weight to Dr. Moore’s testimony. 94 The Commissioner disputes
Ms. Larsen’s assertions. 95 The Court addresses each of Ms. Larsen’s assertions in turn:
A. Additional Evidence Submitted to Appeals Council
In the Appeals Council’s notice denying review, the Council identified the additional
medical evidence it had received from Ms. Larsen: the treating source statement from
Allison Kelliher, M.D., dated October 3, 2017; Imaging Associates’ record dated June 20,
2017; and the treating source statement from Doris Bergeron Counseling Services LLC
dated October 2, 2017. But the Appeals Council determined this additional evidence did

93

A.R. 250–57.

94

Docket 13 at 2.

95

Docket 14 at 2–10.

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“not relate to the period at issue” and therefore did “not affect the decision about whether
[Ms. Larsen] was disabled beginning on or before April 30, 2016, the approximate date of
the ALJ’s decision.” 96
Ms. Larsen argues that the Appeals Council “refused additional evidence that Ms.
Larsen submitted to the Appeals Council even though she was required to do so by
regulations.” She asserts “this type of additional evidence submitted to the Appeals
Council after an ALJ decision must be considered in the merits decision” and “[i]t cannot
be a response to say that the additional evidence that Ms. Larsen submitted to the
Appeals Council does not relate to the period at issue. That cannot be a basis because
the regulatory change imposed on Ms. Larsen an ‘ongoing’ obligation to ‘submit all
evidence that relates to the disability claim.’” 97
When the Appeals Council declines review, its decision is not subject to judicial
review and “the ALJ’s decision becomes the final decision of the Commissioner.”98

96

A.R. 2. The ALJ decision is dated May 2, 2017. However, the ALJ did note that the “relevant
period ended April 30, 2016.” A.R. 38.
97

Docket 13 at 9–13; A.R. 2, 5. The regulation cited by Ms. Larsen specifically states that a
claimant’s ongoing duty to inform the Social Security Administration about or submit evidence
related to the disability claim “applies at each level of the administrative process, including the
Appeals Council level if [it] relates to the period which is the subject of the most recent hearing
decision.” 80 Fed. Reg. at 14830, available at 2015 WL 1254424 (emphasis added); 20 C.F.R. §
404.1512. See also 20 C.F.R. § 404.970 (Effective January 17, 2017, the Appeals Council will
review a case if, “additional evidence that is new, material, and relates to the period on or before
the date of the hearing decision, and there is a reasonable probability that the additional evidence
would change the outcome of the decision” and if the claimant has evidence required under §
404.1512 but missed the deadline for submission to the ALJ and shows “good cause for not
informing us about or submitting the evidence.”).
98

Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 2011); see Klemm v. Astrue,
543 F.3d 1139, 1144 (9th Cir. 2008) (“The Social Security Act grants to district courts jurisdiction
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However, “when the Appeals Council considers new evidence in deciding whether to
review a decision of the ALJ, that evidence becomes part of the administrative record,
which the district court must consider when reviewing the Commissioner’s final decision
for substantial evidence.” 99 The district court considers the additional evidence, “which
was rejected by the Appeals Council, to determine whether, in light of the record as a
whole, the ALJ’s decision was supported by substantial evidence and was free of legal
error.” 100
In this case, the Appeals Council rejected the additional medical evidence
submitted by Ms. Larsen in its review of the ALJ’s decision. 101 The Appeals Council
determined that the evidence did not relate to the period at issue, but the submitted
medical evidence is part of the administrative record and will be considered by this
Court. 102 The medical records submitted to and rejected by the Appeals Council included
MRI evidence of a back impairment dated after the date of the ALJ’s decision. 103 There
is some evidence of back problems in the treatment records in late 2014 to early 2015,
but those appear to have resolved. At a physical examination with Dr. Meinhardt on

to review only ‘final decisions’ of the Commissioner”) (citing 42 U.S.C. § 405(g))).
99

Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012) (internal citation
omitted).
100

Id. at 1232.

101

A.R. 2.

102

Supra note 99. See also Taylor, 659 F.3d at 1231.

103

A.R. 17–18, 20.

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October 21, 2015, Ms. Larsen reported a history of hip and back discomfort that was then
resolved. 104 Additionally, the evidence submitted to the Appeals Council included a letter
from LCSW Bergeron, but only the first page of the letter is in the Court’s record. 105
Finally, the additional evidence includes a letter from Dr. Kelliher dated October 3, 2017
describing the MRI evidence of Ms. Larsen’s back and neck impairments from June 20,
2017, with the notation that “[Ms. Larsen] finds these pains quite debilitating and they
certainly interrupt her quality of life and activities of daily living.” But, as noted above, the
letter refers to MRIs taken after the ALJ’s decision. 106
The 2017 MRIs and October 2017 letter from Dr. Kelliher do not relate to the period
at issue. And the one page of LCSW Bergeron’s letter is consistent with her extensive
treatment notes in the record. Accordingly, the additional post-hearing evidence does not
alter the substantial evidence in the record for the period at issue that underlies the ALJ’s
decision.
B. Development of the Record
Ms. Larsen asserts that the ALJ failed to fully and fairly develop the record
regarding Ms. Larsen’s chronic fatigue syndrome. Specifically, she asserts that the

104

A.R. 745–48.

105

The portion of the letter that was included in the record sets forth part of Ms. Larsen’s
psychological history and reported mental and physical issues as of October 2, 2017. The
included part of the letter does not include new information, includes no medical opinions, and
was dated outside the relevant time period. A.R. 23.

106

A.R. 17–18, 20, 22. In a letter from January 2017, Dr. Kelliher indicated that she had treated
Ms. Larsen for “chronic low back pain.” However, there are no treatment notes from Dr. Kelliher
in the Court’s record. A.R. 828. See also 20 C.F.R. § 404.970.

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agency failed to follow up with Dr. Meinhardt regarding Ms. Larsen’s functional
limitations. 107 The Commissioner maintains that the duty to develop the record was
satisfied. 108
1. Legal Standard
The ALJ has an “independent duty to fully and fairly develop the record and to
assure that the claimant’s interests are considered.”109 An “ALJ’s duty to develop the
record further is triggered only when there is ambiguous evidence or when the record is
inadequate to allow for proper evaluation of the evidence.” Additionally, the “ALJ must
be especially diligent when the claimant is unrepresented or has only a lay
representative.” 110 If the evidence is insufficient to make a decision regarding disability
or the ALJ cannot reach a conclusion based on the evidence before her, she may
recontact a treating physician, psychologist, or other medical source; request additional
existing records; or ask for more information from the claimant or others. 111
2. Analysis
Ms. Larsen alleges that the ALJ failed to fully and fairly develop the record

107

Docket 13 at 2, 15–16. See also A.R. 748.

108

Docket 14 at 6–7.

109

Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001).

110

McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011).

111

Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (“If the ALJ thought he needed to know
the basis of [a doctor’s] opinions in order to evaluate them, he had a duty to conduct an
appropriate inquiry, for example, by subpoenaing the physicians or submitting further questions
to them.”); see also 20 C.F.R. §§ 404.1520b, 416.920b (effective until March 27, 2017).
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regarding her chronic fatigue syndrome. Pursuant to Social Security Ruling 14-1p, she
alleges the ALJ should have followed up on Dr. Meinhardt’s statement in his evaluation
that Ms. Larsen “apparently has chronic fatigue syndrome.” She also alleges the ALJ
should have asked Dr. Meinhardt for functional limitations. 112
Under Social Security Ruling, SSR 14-1p, a claimant “can establish that he or she
has a [medically determinable impairment] of [chronic fatigue syndrome] by providing
appropriate evidence from an acceptable medical source. A licensed physician (a
medical or osteopathic doctor) is the only acceptable medical source who can provide
such evidence. We cannot rely upon the physician’s diagnosis alone. The evidence
must document that the physician reviewed the person’s medical history and conducted
a physical exam.”113 Further, in cases in which chronic fatigue syndrome is alleged,
the ALJ generally needs longitudinal clinical records reflecting ongoing medical
evaluation and treatment from the person’s medical sources. When there is insufficient
evidence to determine whether a claimant has a medically determinable impairment of
chronic fatigue syndrome or is disabled, the ALJ may recontact a treating or other
source, request additional existing records, ask for more information, or obtain a
consultative examination. 114

112

Docket 13 at 2, 15–20. See also A.R. 748.

113

The full title of the ruling is “Social Security Ruling, SSR 14-1p; Titles II and XVI: Evaluating
Claims Involving Chronic Fatigue Syndrome (CFS).”
114

SSR 14-1p, available at 2014 WL 1371245 at * 4–7. “Social Security Rulings [ ] do not carry
the ‘force of law,’ but they are binding on ALJs nonetheless. They reflect the official
interpretation of the [Social Security Administration] and are entitled to some deference as long
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Here, ALJ LaCara found that Ms. Larsen’s chronic fatigue syndrome was a severe
impairment at Step 2. She noted that Dr. Meinhardt diagnosed Ms. Larsen with chronic
fatigue syndrome at a consultative evaluation. 115 He had reviewed Ms. Larsen’s records
and did a physical examination pursuant to SSR 14-1p. In his evaluation, Dr. Meinhardt
outlined Ms. Larsen’s medical history of “[a]drenal fatigue/chronic fatigue with insomnia.”
He noted that at the time of the visit, Ms. Larsen reported her insomnia was pretty much
resolved and under control. However, in his conclusion, Dr. Meinhardt stated, “[t]his quiet
but pleasant lady apparently has chronic fatigue syndrome.” 116 Beyond a diagnosis of
apparent chronic fatigue syndrome, Dr. Meinhardt provides no further explanation. Dr.
Meinhardt’s evaluation of Ms. Larsen’s insomnia is in tension with his diagnosis that she
has apparent chronic fatigue syndrome. 117
The ALJ also considered Dr. Kelliher’s opinion that Ms. Larsen’s ability to work was
limited in part by “extreme fatigue,” but correctly pointed out that the opinion was “not
accompanied with any treatment notes to substantiate the existence of this condition.”118
In her January 2017 letter, Dr. Kelliher indicated that she was Ms. Larsen’s primary care

as they are consistent with the Social Security Act and regulations.” Molina v. Astrue, 674 F.3d
1104, 1113 n.5 (9th Cir. 2012) (internal quotation marks and citation omitted).
115

A.R. 30.

116

A.R. 745–48. See supra note 115.

117

Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (“The ALJ need not accept the opinion
of any physician, including a treating physician, if that opinion is brief, conclusory, and
inadequately supported by clinical findings.”) (internal citation omitted).
118

A.R. 30.

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provider and that Ms. Larsen had established care with her in September of 2016, 119 but
did not specifically note that she had conducted a medical review or physical examination
pursuant to SSR 14-1p, nor did Dr. Kelliher specifically diagnose Ms. Larsen with chronic
fatigue syndrome in the letter. 120 Additionally, the treatment record reflects that Ms.
Larsen believed her insomnia resulted from her glaucoma medications and that her sleep
problems were resolving after she stopped taking that medication in early 2013. 121 For
example, Ms. Larsen reported to psychiatrist Dr. Yanagida in March 2013 and again to
PAC Scott in April 2013 that her glaucoma medication was causing her insomnia. 122 At
other visits, she reported improved sleep. 123 At a visit to Providence Medical Center in
September 2014, Dr. Baker informed Ms. Larsen that she “did not think that [Ms. Larsen]
was disabled from insomnia” and did not think Ms. Larsen “warranted Social Security
disability for this.” 124 There is no evidence in the record that Ms. Larsen underwent testing

119

The October 3, 2017 letter stated that Ms. Larsen was “well known to our clinic and has been
seen since September of 2016.” A.R. 22.

120

A.R. 30, 22, 828. Dr. Kelliher noted that Ms. Larsen was seen at Vitae medical center for
“[m]ajor depression, generalized anxiety, chronic pain syndrome, fibromyalgia, chronic low back
pain, osteoarthritis, menopausal syndrome, impaired cognition, memory impairment, and
insomnia.” In her letter of January 2017, Dr. Kelliher specifically states, “Unfortunately [Ms.
Larsen’s] extreme fatigue, impaired concentration and polyarthralgias limit her ability to work.”
A.R. 828. In her letter of October 3, 2017, Dr. Kelliher states that Ms. Larsen “often finds herself
lying down in the middle of the day due to fatigue from pain.” A.R. 22.

121

A.R. 432.

122

A.R. 288, 432–33.

123

e.g., A.R. 466, 459–60, 637–39.

124

A.R. 751.

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or examination to rule out other causes for her fatigue. 125
The ALJ also noted that Ms. Larsen’s chronic fatigue syndrome diagnosis was
“somewhat unsupported as demonstrated by her reported activities.” 126 Although Ms.
Larsen testified that she had sleep difficulties and fatigue, she testified that she travelled
to Texas, could do paperwork, drive to yoga classes, do housework, read, grocery shop,
walk with friends, and work on the computer. 127 She also indicated that she could not go
back to doing a clerical job full-time because it would be “hard for [her] . . . to sit.”128
Throughout the record, Ms. Larsen reported engaging in social activities regularly
including dating and having romantic relationships, socializing with friends, traveling,
dancing, running and walking, and participating in yoga classes. She managed the sale
of a house and probate. 129 Further, the ALJ gave great weight to testifying psychiatrist
Dr. Moore’s opinion that Ms. Larsen’s insomnia was not a psychological impairment and
had basically been resolved after stopping her glaucoma medications. 130
The evidence before the ALJ was sufficient to make a decision regarding Ms.

125

Reddick v. Chater, 157 F.3d 715, 723–24 (9th Cir. 1998); see also SSR 14-1p, available at
2014 WL 1371245 at * 2.

126

A.R. 34, 58–71, 250–57. See Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (The ALJ
“may consider inconsistencies either in the claimant’s testimony or between the testimony and
the claimant’s conduct.”).
127

A.R. 58–65.

128

A.R. 68.

129

e.g., A.R. 58–71, 250–57, 412–17, 432, 439, 459–60, 524.

130

A.R. 35–36, 54.

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Larsen’s chronic fatigue syndrome. There is substantial evidence in the record to
support the ALJ’s determinations regarding the functional impact of MS. Larsen’s chronic
fatigue syndrome. The ALJ was not required to seek additional testimony or another
evaluation from Dr. Meinhardt regarding Ms. Larsen’s functional limitations. For the
foregoing reasons, the ALJ developed the record adequately with respect to Ms.
Larsen’s chronic fatigue syndrome.
C. Medical Opinions
Ms. Larsen asserts that the ALJ did not give specific and legitimate reasons for
discounting evaluating psychologist Dr. Campbell’s opinion regarding Ms. Larsen’s
psychological limitations. Specifically, she asserts that it was error to give more weight to
Dr. Moore’s opinion because Dr. Moore’s testimony “depended wholly on the report and
data of psychiatrist Dr. Campbell.” 131

The Commissioner counters that the ALJ

“reasonably resolved the conflicting medical evidence.” 132

1. Legal Standard
“Regardless of its source, [the SSA] will evaluate every medical opinion [it]
receive[s].” 133 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

131

Docket 13 at 21–24.

132

Docket 14 at 7.

133

20 C.F.R. § 404.1527(c). This section applies to claims filed before March 27, 2017.

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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.” 134 In the Ninth Circuit, “[t]o reject the uncontradicted opinion of a treating or
examining doctor, an ALJ must state clear and convincing reasons that are supported by
substantial evidence.” 135 When “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 supported by substantial evidence.” 136 This can be done by “setting out a
detailed and thorough summary of the facts and conflicting clinical evidence, stating [her]
interpretation thereof, and making findings.” 137
Factors relevant to evaluating any medical opinion include: (1) the examining or
treatment relationship; (2) the consistency of the medical opinion with the record as a
whole; (3) the physician’s area of specialization; (4) the supportability of the physician’s
opinion through relevant evidence; and (5) other relevant factors, such as the physician’s
degree of familiarity with the SSA’s disability process and with other information in the
record. 138 An ALJ may reject the opinion of a doctor “if that opinion is brief, conclusory,

134

Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821,
830 (9th Cir. 1995)).
135

Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting Bayliss v. Barnhart, 427 F.3d
1211, 1216 (9th Cir. 2005)).

136

Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).

137

Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes v. Bowen, 881 F.2d
747, 751 (9th Cir. 1989)).
138

20 C.F.R. §§ 404.1513a(b), 404.1527(c)(2). These sections apply to claims filed before
March 27, 2017. See 20 C.F.R. § 404.614.

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and inadequately supported by clinical findings.” 139
The opinions of agency physician consultants may be considered medical
opinions, and their findings and evidence are treated similarly to the medical opinion of
any other source. 140

“The weight afforded a non-examining physician’s testimony

depends ‘on the degree to which [she] provides supporting explanations for [her]
opinions.’” 141 Greater weight may also be given to the opinion of a non-examining expert
who testifies at a hearing because she is subject to cross examination. 142 The opinions
of non-treating or non-examining physicians may serve as substantial evidence when the
opinions are consistent with independent clinical findings or other evidence in the
record. 143
2. Analysis
Here, evaluating psychologist Dr. Campbell assessed Ms. Larsen with cognitive
deficits and dependent personality disorder. In his report, Dr. Campbell noted that Ms.
Larsen, “had to be coaxed to give maximum effort.” However, Dr. Campbell provided no
function limitations, but noted that Ms. Larsen had found psychotherapy “to be quite

139

Bayliss, 427 F.3d at 1216.

140

20 C.F.R. §§ 404.1513a(b).

141

Garrison, 759 F.3d at 1012 (quoting Lester, 81 F.3d at 830).

142

Andrews v. Shalala, 53 F.3d 1035, 1042 (citing Torres v. Secretary of H.H.S., 870 F.2d 742,
744 (1st Cir. 1989)).
143

Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).

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helpful in examining her dependency needs and in grieving her late husband.” 144 Dr.
Campbell’s diagnoses were contradicted by medical expert Dr. Moore’s conclusion that
Ms. Larsen’s mental health conditions were not severe and she did not suffer from
debilitating cognitive deficits or a personality disorder. 145 Therefore, the ALJ was required
to provide specific and legitimate reasons supported by substantial evidence for
discounting Dr. Campbell’s diagnostic opinion. 146
The ALJ discussed Dr. Campbell’s one-time evaluation of Ms. Larsen. ALJ LaCara
concluded that Dr. Campbell’s prognosis of Ms. Larsen was consistent with and supported
by the longitudinal record and Dr. Moore’s opinion, but discounted Dr. Campbell’s
diagnostic opinions as inconsistent and unsupported. 147 The RFC did not include any
mental health limitations. 148 At the same time, ALJ LaCara gave “great weight” to
testifying, non-examining medical expert Dr. Moore’s opinions and provided the following
reasons for so doing: (1) they were “consistent with and supported by the longitudinal
record” and (2) Dr. Moore was an expert in the field of psychological disability evaluation
and had “the opportunity to review all of the psychological treatment notes in the record
prior to offering her opinions.”149

144

A.R. 738.

145

A.R. 55–56.

146

Revels, 874 F.3d at 654.

147

A.R. 36, 735–38.

148

A.R. 33.

149

A.R. 35–36.

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At the hearing on January 13, 2017, Dr. Moore opined that Dr. Campbell’s cognitive
deficit diagnosis didn’t make “a lot of sense, especially in light of the rest of the record,
which really does not suggest any kind of compelling cognitive problem.”150 Dr. Moore
noted that situational issues in Ms. Larsen’s life, including the two-year anniversary of her
husband’s death, the sale of her home, and family conflicts explained Ms. Larsen’s
adjustment disorder, bereavement, and depression. She discussed the resolution of Ms.
Larsen’s insomnia.

Dr. Moore also opined that the dependent personality disorder

diagnosis “was probably suggested because of [Ms. Larsen]’s reporting about her history
in her marriage, and I’m not even convinced that it’s a reasonable diagnosis.” Dr. Moore
added that, “from my point of view, a clinical point of view, this woman seems to be quite
actively engaged in the world, functioning really quite well.” Dr. Moore concluded that Ms.
Larsen had no functional limitations in a work setting that would be caused by her mental
impairments. 151 In this case, Dr. Moore’s opinions, together with the other evidence in
the record, constituted substantial evidence justifying the rejection of Dr. Campbell’s
diagnostic opinions. 152

150

A.R. 53.

151

A.R. 52–57. See Andrews, 53 F.3d at 1042 (“greater weight may be given to opinion of
nonexamining expert who testifies at hearing subject to cross-examination”).

152

See Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995) (The “opinion of a nonexamining
physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion
of either an examining or a treating physician.”); see also Thomas v. Barnhart, 278 F.3d 947, 957
(9th Cir. 2002) (the “opinions of non-treating or non-examining physicians may also serve as
substantial evidence when the opinions are consistent with independent clinical findings or other
evidence in the record.”).

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For the foregoing reasons, the Court finds that the ALJ provided specific and
legitimate reasons supported by substantial evidence for discounting Dr. Campbell’s
diagnostic opinions and giving great weight to testifying psychological expert Dr. Moore’s
conflicting opinions.
D. Ms. Larsen’s RFC
Ms. Larsen alleges that the RFC failed “to take account of the vocationally
significant limitations of chronic fatigue syndrome.” 153 Specifically, she asserts that the
ALJ failed to properly analyze Ms. Larsen’s chronic fatigue syndrome under SSR 14-1p
and “failed to assess Dr. Kelliher’s medical source statement.” 154
1. Legal Standard
The RFC is an individual’s “maximum remaining ability to do sustained workrelated physical and mental activities in an ordinary work setting on a regular and
continuing basis,” and “must include a discussion of the individual’s abilities on that
basis.” 155 A court should affirm an ALJ’s determination of a claimant’s RFC “if the ALJ
applied the proper legal standard and [her] decision is supported by substantial
evidence.” 156 An ALJ “may rely on a vocational expert’s testimony that is based on a
hypothetical that ‘contains all of the limitations that the ALJ found credible and supported

153

Docket 13 at 17.

154

Docket 13 at 17–21.

155

SSR 96-8p, available at 1996 WL 374184 at *2.

156

Bayliss, 427 F.3d at 1217 (citing Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599
(9th Cir. 1999)).

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by substantial evidence in the record.’” 157 It is “proper for an ALJ to limit a hypothetical to
those impairments that are supported by substantial evidence in the record.” 158 However,
an ALJ must consider “limitations and restrictions imposed by all of an individual’s
impairments, even those that are not ‘severe.’” 159
2. Analysis
Here, the ALJ found that Ms. Larsen had severe impairments of very mild to
minimal degenerative changes of the right ankle, mild to moderate degenerative changes
at the left thumb, moderate degenerative changes at the right great toe, and apparent
chronic fatigue syndrome. 160 Based thereon, ALJ LaCara concluded that Ms. Larsen
could perform light work with certain exceptions. 161 ALJ LaCara relied on the testimony
of the vocational expert to determine that a person with Ms. Larsen’s current residual
functional capacity could perform her past work as a curriculum advisor and could also
perform the requirements of occupations such as an appointment clerk or civil service
clerk. 162
As set forth above, the ALJ’s reasons for discounting Dr. Campbell’s opinions

157

Ghanim, 763 F.3d at 1166 (quoting Bayliss, 427 F.3d at 1217).

158

Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001) (citing Magallanes v. Bowen, 881 F.2d
747, 756-57 (9th Cir. 1989)).
159

20 C.F.R. §§ 404.1545(a)(2), 416.945(a)(2); see also SSR 96-8p, available at 1996 WL 374184
at *5.

160

A.R. 30.

161

A.R. 33.

162

A.R. 38, 71–82.

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regarding Ms. Larsen’s mental limitations were specific and legitimate. And, the ALJ’s
decision not to include mental health limitations in the RFC was supported by substantial
evidence. The ALJ also fully and fairly developed the record regarding Ms. Larsen’s
chronic fatigue syndrome. She addressed Dr. Kelliher’s letter of January 2017. 163 ALJ
LaCara was not required to follow up with Dr. Meinhardt in this case. The additional MRI
results and letters from Dr. Kelliher and LCSW Bergeron supported the ALJ’s conclusion
that Ms. Larsen’s “level of functioning [was] not as fully limiting as alleged.” 164
For the foregoing reasons, Ms. Larsen’s medically determinable limitations were
adequately accounted for in the RFC and supported by substantial evidence.
V.

ORDER

The Court, having carefully reviewed the administrative record, finds that the ALJ’s
determinations are free from legal error. Accordingly, IT IS ORDERED that Ms. Larsen’s
request for relief at Docket 13 is DENIED, the Commissioner’s final decision is
AFFIRMED. The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 7th day of October 2019 at Anchorage, Alaska.
/s/ Sharon L. Gleason____________
UNITED STATES DISTRICT JUDGE

163

In her decision, ALJ LaCara noted that “[i]n a post hearing letter dated the same day as the
hearing from the claimant’s brand new physician, CFS is alleged; however, this letter is not
accompanied with any treatment notes to substantiate the existence of this condition.” A.R. 22,
30.
164

A.R. 34. See Bayliss, 427 F.3d at 1217.

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