Lehman v. Saul

Filing 25

ORDER re 22 Motion/Plaintiff's Opening Brief. The final decision of the Commissioner is reversed, and this matter is remanded for further proceedings. Signed by Judge H. Russel Holland on 4/1/21. (JLH, COURT STAFF)

WO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

HAYDEN LEHMAN,

)
)
Plaintiff,
)
)
vs.
)
)
ANDREW M. SAUL, Commissioner of
)
Social Security,
)
)
Defendant.
)
_______________________________________)

No. 3:20-cv-0184-HRH

ORDER
This is an action for judicial review of the denial of disability benefits under Title XVI
of the Social Security Act, 42 U.S.C. §§ 1381-1383f. Plaintiff Hayden Lehman has timely
filed his opening brief1 to which defendant, Andrew M. Saul, has timely responded.2 Oral
argument was not requested and is not deemed necessary.
Procedural Background
On April 11, 2017, plaintiff filed an application for disability benefits under Title
XVI, alleging that he became disabled on January 1, 2016. However, in Title XVI cases such
as this one, onset of disability is generally “‘established as of the date of filing provided the
1

Docket No. 22.

2

Docket No. 23.
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individual was disabled on that date[.]’” Bjork v. Colvin, Case No. CV 15-362-TUC-LAB,
2016 WL 3640251, at *5 (D. Ariz. July 6, 2016) (quoting SSR 83-20). Plaintiff alleges that
he is disabled due to COPD and sleep apnea. Plaintiff’s application was denied initially, and
he requested a hearing. After administrative hearings on March 4, 2019 and August 21,
2019, an administrative law judge (ALJ) denied plaintiff’s application. On June 10, 2020,
the Appeals Council denied plaintiff’s request for review, thereby making the ALJ’s
September 23, 2019 decision the final decision of the Commissioner. On July 27, 2020,
plaintiff commenced this action for judicial review of the Commissioner’s final decision.
General Background
Plaintiff was born on July 6, 1962. Plaintiff was 54 years old at the time he filed his
application for benefits. Plaintiff has a GED. Plaintiff was in special education classes for
reading and social studies while in school. Plaintiff’s past relevant work includes work as
a dog food cook, a bagger, a dishwasher, and a home attendant.
The ALJ’s Decision
The ALJ applied the five-step sequential analysis used to determine whether an
individual is disabled.3

3

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
(continued...)
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At step one, the ALJ found that plaintiff had “not engaged in substantial gainful
activity since April 11, 2017, the application date. . . .”4
At step two, the ALJ found that plaintiff had “the following severe impairments:
asthma/chronic obstructive pulmonary disease (COPD), obstructive sleep apnea (OSA),
obesity, and a somatic symptom disorder. . . .”5 The ALJ found that plaintiff’s “gastritis/esophagitis, compression fracture of the thoracic spine, right shoulder pain, mild cognitive
impairment, and an attention deficit disorder constitute at most non-severe impairments.”6

3

(...continued)
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).
4

Admin. Rec. at 17.

5

Admin. Rec. at 17.

6

Admin. Rec. at 19.
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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. . . .”7 The ALJ considered Listings 3.02
(chronic respiratory disorders), 3.03 (asthma), 3.00P (sleep-related breathing disorder), and
12.07 (somatic symptom and related disorders).8 The ALJ considered the “paragraph B”
criteria and found that plaintiff had a mild limitation in understanding, remembering or
applying information; a mild limitation in interacting with others; a moderate limitation in
terms of his ability to concentrate, persist, or maintain pace; and a moderate limitation in
terms of his ability to adapt or manage himself.9
“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 medium work as
defined in 20 CFR 416.967(c) with only occasionally climbing
of ramps and stairs and no climbing of ladders, ropes, or
scaffolds. The claimant can otherwise engage in frequent
balancing, stooping, kneeling, crouching, and crawling, but is
limited in terms of environmental conditions in that he needs to
avoid concentrated exposure to humidity and irritants such as
fumes, odors, dusts, gases, and poorly-ventilated areas. In
addition, the claimant’s work is limited to that involving only

7

Admin. Rec. at 19.

8

Admin. Rec. at 19.

9

Admin. Rec. at 19-20.
-4-

routine tasks that are taught by demonstration or visual
format.[10]
The ALJ discounted plaintiff’s pain and symptom statements because plaintiff had not
sought “specialized care by a pulmonologist despite being advised to do so[,]” because his
statements were inconsistent with the medical evidence, and because his statements were
inconsistent with his reported daily activities.11
The ALJ found Dr. Kidder’s opinion,12 Dr. Cornelius’ opinion,13 NP Schuerman’s
opinion,14 and the Glick/Lester opinion15 unpersuasive.16 The ALJ found Dr. Fraser’s

10

Admin. Rec. at 20.

11

Admin. Rec. at 22.

12

Dr. Kidder’s opinion is discussed below in detail.

13

Dr. Cornelius’ opinion is discussed below.

14

NP Schuerman’s opinion is discussed below.

15

On August 8, 2018, PAC Glick, who was supervised by Dr. Lester, wrote that
plaintiff’s
condition is frequently exacerbated by smells and perfumes. His
asthma exacerbations have required several emergency room
visits. He is currently on a multiple treatment regimen and
continues to struggle with his breathing. He has been referred
to a specialist, pulmonologist. At this time he is not capable of
working a full time job that is located in a public space due to
his breathing condition. This determination may need to be
reassessed by the pulmonologist.
Admin. Rec. at 423.
16

Admin. Rec. at 22, 25.
-5-

opinion persuasive.17 The ALJ found Dr. Russell’s opinion18 unpersuasive.19 The ALJ found
Dr. Kiehl’s opinion persuasive.20 The ALJ also found Dr. Buechner’s opinion persuasive.21
At step four, the ALJ found that plaintiff was “capable of performing past relevant
work as a kitchen helper/dishwasher or home attendant.”22 This finding was based on the
testimony of the vocational expert.23
The ALJ also made alternative step five findings, finding that there was other work
that plaintiff could perform, such as that of a laundry worker.24
Thus, the ALJ concluded that plaintiff had “not been under a disability, as defined in
the Social Security Act since April 11, 2017, the date the application was filed. . . .”25

17

Admin. Rec. at 26. Dr. Fraser’s opinion is discussed below in detail.

18

On November 28 and December 10, 2018, Heather A. Russell, Psy.D., did a
neuropsychological assessment. Dr. Russell opined that “there are no valid or identifiable
neuropsychological concerns preventing [plaintiff] from obtaining gainful employment.”
Admin. Rec. at 582.
19

Admin. Rec. at 26.

20

Admin. Rec. at 26. Dr. Kiehl’s opinion is discussed below.

21

Admin. Rec. at 23. Dr. Buechner’s opinion is discussed below.

22

Admin. Rec. at 27.

23

Admin. Rec. at 27.

24

Admin. Rec. at 27-28.

25

Admin. Rec. at 28.
-6-

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
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)).
Discussion
Plaintiff first argues that the ALJ failed to include limitations that she assessed in the
RFC and the hypothetical posed to the vocational expert. “An ALJ may use the testimony
of a vocational expert to determine whether the claimant can perform past relevant work.”

-7-

Ghanim v. Colvin, 763 F.3d 1154, 1166 (9th Cir. 2014). “An ALJ may rely on a vocational
expert’s testimony that is based on a hypothetical that ‘contain[s] all of the limitations that
the ALJ found credible and supported by substantial evidence in the record.’” Id. (quoting
Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005)). “However, if an ALJ’s
hypothetical is based on a residual functional capacity assessment that does not include some
of the claimant’s limitations, the vocational expert’s testimony ‘has no evidentiary value.’”
Id. (quoting Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th Cir.2008)).
“In determining a claimant’s residual functional capacity, the ALJ must consider all of a
claimant’s medically determinable impairments, including those that are not severe.” Id.
The ALJ found that plaintiff had
the residual functional capacity to perform medium work as
defined in 20 CFR 416.967(c) with only occasional climbing of
ramps and stairs and no climbing of ladders, ropes, or scaffolds.
The claimant can otherwise engage in frequent balancing,
stooping, kneeling, crouching, and crawling, but is limited in
terms of environmental conditions in that he needs to avoid
concentrated exposure to humidity and irritants such as fumes,
odors, dusts, gases, and poorly-ventilated areas. In addition, the
claimant’s work is limited to that involving only routine tasks
that are taught by demonstration or visual format.[26]
The RFC tracks the first hypothetical that the ALJ gave to the vocational expert, William
Weiss, at the administrative hearing. The ALJ gave Weiss a hypothetical person who
is limited to medium work with the occasional climbing of
ramps or stairs. No climbing of ladders, ropes or scaffolds.

26

Admin. Rec. at 20.
-8-

Frequent balancing and stooping, kneeling, crouching, and
crawling. This person is limited to avoiding concentrated
exposure to humidity. Is to avoid concentrated exposure to
irritants such as fumes, odors, dust, gases, and poorly ventilated
areas. This person is . . . limited to work that is routine . . .
where this person is shown or taught tasks either by demonstration or visual format.[27]
Plaintiff argues that the ALJ should have included additional limitations in both the
RFC and the first hypothetical. In particular, plaintiff argues that the ALJ failed to include
the mild limitations that she found plaintiff had in understanding, remembering, and applying
information and in interacting with others and the moderate limitations she found plaintiff
had in terms of concentrating, persisting or maintaining pace and in adapting and managing
himself.28 These are the limitations that the ALJ assessed at step two, but plaintiff argues that
these limitations should have been used in shaping the limitations included in the RFC and
the first hypothetical. In the RFC, the ALJ limited plaintiff to “routine tasks that are taught
by demonstration or visual format.”29 These are also the limitations that the ALJ included
in the first hypothetical.30 But, plaintiff argues that this is an inadequate attempt to account
for his moderate limitation as to adapting or managing himself and his mild limitation as to
understanding, remembering, and applying information. Plaintiff also argues that the ALJ

27

Admin. Rec. at 73-74.

28

Admin. Rec. at 19-20.

29

Admin. Rec. at 20.

30

Admin. Rec. at 73-74.
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made no attempt in the RFC and the first hypothetical to account for his mild limitation as
to interacting with others and his moderate limitation as to concentrating, persisting, or
maintaining pace.
As to the ability to interact with others, plaintiff argues that this area of functioning
includes more than interacting with the public. Plaintiff contends that it also includes
functions such as
cooperating with others; asking for help when needed; initiating
and maintaining friendships; handling conflicts with others;
stating own point of view; initiating or sustaining conversation;
understanding and responding to social cues (physical, verbal,
emotional); responding to requests, suggestions, criticism,
correction, and challenges; and keeping social interactions free
of excessive irritability, sensitivity, argumentativeness, or
suspiciousness.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00E(2). Plaintiff argues that the ALJ failed to
include any limitations related to this area of functioning in the RFC or the first hypothetical.
Plaintiff makes a similar argument as to the moderate limitation as to concentrating,
persisting, or maintaining pace. “This area of mental functioning refers to the abilities to
focus attention on work activities and stay on task at a sustained rate.” 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 12.00E(3).
Examples include: Initiating and performing a task that you
understand and know how to do; working at an appropriate and
consistent pace; completing tasks in a timely manner; ignoring
or avoiding distractions while working; changing activities or
work settings without being disruptive; working close to or with
others without interrupting or distracting them; sustaining an
ordinary routine and regular attendance at work; and working a
-10-

full day without needing more than the allotted number or length
of rest periods during the day.
Id. Plaintiff argues that the ALJ failed to include any limitations in the RFC or the first
hypothetical that related to his moderate limitation in this area of functioning.
The Ninth Circuit has stated that “an ALJ’s assessment of a claimant adequately
captures restrictions related to concentration, persistence, or pace where the assessment is
consistent with restrictions identified in the medical testimony.” Stubbs-Danielson v. Astrue,
539 F.3d 1169, 1174 (9th Cir. 2008). The same would apply to other “paragraph B” areas
of functioning. Here, Dr. Kiehl and Dr. Buechner opined as to plaintiff’s limitations related
to his mental impairments. On September 22, 2017, Dr. Kiehl opined that plaintiff had mild
limitations in his ability to understand, remember, or apply information; mild limitations in
his ability to interact with others; moderate limitations in his ability to concentrate, persist,
or maintain pace; and moderate limitations in his ability to adapt or manage oneself.31 Dr.
Kiehl also opined that plaintiff was “able to understand and remember simple tasks[;]” “is
able to sustain concentration, persistence and pace for simple 1-2 step tasks[;]” “is able to
interact appropriately with coworkers and supervisors[;]” and “[o]nce learned, . . . can adjust
to changes in the regular work place.”32 Dr. Kiehl opined that plaintiff “is capable of the

31

Admin. Rec. at 94.

32

Admin. Rec. at 98-99.
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basic mental demands of unskilled work.”33 Dr. Buechner testified at the administrative
hearing and opined that plaintiff had “a mild limitation on the ability to understand,
remember or apply information, interact with others, and then moderate limitations on the
ability to concentrate, persist or maintain pace or adapt and manage oneself[.]”34 Dr.
Buechner testified that plaintiff should be restricted “to routine tasks” and that “if reminders
were needed, I would use visual reminders . . . rather than verbal reminders[.]”35 The ALJ’s
assessment of the limitations flowing from plaintiff’s mental impairments was consistent
with the restrictions opined to by Dr. Buechner and Dr. Kiehl. The ALJ was not required to
include additional limitations based on her “paragraph B” assessments.
Plaintiff next argues that the ALJ erred in her treatment of Dr. Kiehl’s opinion. The
ALJ found Dr. Kiehl’s opinion persuasive because it was “largely consistent with Dr.
Buechner’s opinion; however, to the extent these opinions differ from one another, Dr.
Buechner’s opinion is found to be more persuasive given that she had the opportunity to
review the complete medical evidence of record in this case for a more comprehensive view
of the claimant’s mental functioning versus that afforded to Dr. Kiehl.”36

33

Admin. Rec. at 99.

34

Admin. Rec. at 56.

35

Admin. Rec. at 56.

36

Admin. Rec. at 26.
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“[F]or claims” such as plaintiff’s, which were “filed on or after March 27, 2017, new
regulations apply that change the framework for how an ALJ must evaluate medical opinion
evidence.” Loriel C. v. Saul, Case No. 2:19-cv-00316-MKD, 2020 WL 4340742, at *11
(E.D. Wash. July 28, 2020). “The new regulations provide that the ALJ will no longer “give
any specific evidentiary weight . . . to any medical opinion(s). . . .” Id. (quoting Revisions
to Rules, 2017 WL 168819, 82 Fed. Reg. 5844, at 5867-68). “Instead, an ALJ must consider
and evaluate the persuasiveness of all medical opinions or prior administrative medical
findings from medical sources.” Id.
The factors for evaluating the persuasiveness of medical
opinions and prior administrative medical findings include
supportability, consistency, relationship with the claimant
(including length of the treatment, frequency of examinations,
purpose of the treatment, extent of the treatment, and the
existence of an examination), specialization, and “other factors
that tend to support or contradict a medical opinion or prior
administrative medical finding” (including, but not limited to,
“evidence showing a medical source has familiarity with the
other evidence in the claim or an understanding of our disability
program’s policies and evidentiary requirements[.]”
Id. (quoting 20 C.F.R. §§ 404.1520c(c)(1)-(5), 416.920c(c)(1)-(5)). “Supportability and
consistency are the most important factors, and therefore the ALJ is required to explain how
both factors were considered.” Id. at *11. “The ALJ may, but is not required to, explain how
the other factors were considered.” Id.
“The Ninth Circuit has not yet stated whether it will continue to require an ALJ to
provide ‘clear and convincing’ or ‘specific and legitimate’ reasons for rejecting medical

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opinions given the Commissioner’s elimination of the hierarchy.” Tina T. v. Commissioner
of Social Security, Case No. C19-6215 BHS, 2020 WL 4259863, at *4 (W.D. Wash. July 24,
2020). But, “[t]he Commissioner’s new regulations still require the ALJ to explain his or her
reasoning, and to specifically address how he or she considered the supportability and
consistency of the opinion.” Id. “Obviously the ALJ’s reasoning must remain legitimate,
meaning lawful or genuine, as it must still be supported by substantial evidence and free
from legal error[.]” Id.
Plaintiff argues that the ALJ erred in discounting Dr. Kiehl’s opinion in favor of Dr.
Buechner’s opinion because Dr. Buechner testified that she did not necessarily disagree with
Dr. Kiehl’s opinion.37 Plaintiff seems to be arguing that the ALJ did not have a legitimate
reason for discounting Dr. Kiehl’s opinion given that Dr. Buechner did not disagree with his
opinion.
The ALJ found Dr. Buechner’s opinion more persuasive because “she had the
opportunity to review the complete medical evidence of record in this case for a more
comprehensive view of the claimant’s mental functioning versus that afforded to Dr.
Kiehl.”38 Given that Dr. Kiehl reviewed the medical record in September 2017 and that Dr.
Buechner reviewed it in August 2019, this was a legitimate reason for the ALJ to find Dr.
Buechner’s opinion more persuasive than Dr. Kiehl’s, particularly since Dr. Russell’s

37

Admin. Rec. at 57.

38

Admin. Rec. at 26.
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neuropsych evaluation was done after Dr. Kiehl reviewed the record and before Dr. Buechner
did. The ALJ did not err in her treatment of Dr. Kiehl’s opinion.
Plaintiff next argues that the ALJ erred as to Dr. Kidder’s opinion. Dr. Kidder
testified as a medical expert at the administrative hearing. Dr. Kidder opined that plaintiff
had the residual functional capacity to
occasionally lift 20 pounds, and frequently lift 10 pounds. He
could stand or walk for at least two hours in an eight-hour day.
He could sit for six hours in an eight-hour day. I believe the
pushing and pulling would be unlimited except for the weight
limits that I mentioned previously. As far as postural limitations, I believe he could occasionally climb ramps or stairs. And
never be on ladders, ropes or scaffolds. Occasionally do
balancing, stooping, kneeling, crouching, and crawling. As far
as manipulative limitations, I thought there was no limit as far
as reaching, handling, fingering, or feeling. I saw no evidence
of any visual limitations or any communicative limitations with
hearing or speaking. As far as environmental limitations, I
thought he should avoid concentrated exposure to extreme cold,
heat, wetness, and humidity. I thought there was no limit as far
as noise or vibration. I thought he should avoid all exposure to
fumes, odors, dust, and gases. . . . And I thought that he should
avoid concentrated exposure to hazards such as machinery and
heights.[39]
The ALJ found Dr. Kidder’s opinion unpersuasive.40 Plaintiff argues that this was
error. Plaintiff’s argument focuses on the portion of Dr. Kidder’s opinion that plaintiff could
stand/walk for two hours per day and occasionally lift 20 pounds because such limitations
are not consistent with a capacity to do medium work. As set out above, the ALJ found that
39

Admin. Rec. at 51-52.

40

Admin. Rec. at 22.
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plaintiff had the capacity to do a limited range of medium work, which “involves . . . frequent
lifting or carrying of objects weighing up to 25 pounds[,]” 20 C.F.R. § 416.967(c), and
requires “standing or walking, off and on, for a total of approximately 6 hours in an 8-hour
workday[.]” SSR 83-10.
The ALJ found Dr. Kidder’s opinion unpersuasive because “it is unsupported by the
remainder of his hearing testimony” and because it was “inconsistent with the record as a
whole regarding the claimant’s functioning[.]”41 Plaintiff argues that these were not
legitimate reasons for discounting Dr. Kidder’s opinion.
The first reason the ALJ gave for discounting Dr. Kidder’s opinion was that “it is
unsupported by the remainder of his hearing testimony.”42 The ALJ cited to several examples
in support of her finding. First, the ALJ explained that Dr. Kidder testified that plaintiff’s
respiratory symptoms were triggered “by certain smells, fumes, and especially smoke,” but
that “such symptoms appear to have been treated with several inhalers and oral medications
such that the claimant has not required any hospitalizations for breathing problems during
the course of the period at issue. . . .”43 But, the fact that plaintiff did not have any
hospitalizations due to his respiratory problems does mean that plaintiff was not as limited
as Dr. Kidder opined. At the administrative hearing, Dr. Kidder reviewed plaintiff’s

41

Admin. Rec. at 22.

42

Admin. Rec. at 22.

43

Admin. Rec. at 22.
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pulmonary function tests, his treatment with inhalers and medication, the other medical
source statements, and his use of home oxygen,44 all of which supported his opinion. Next,
the ALJ cited to Dr. Kidder’s testimony that in April 2019, plaintiff was riding his bike
daily.45 Although, as the ALJ pointed out, this notation appears in several treatment notes,
these same notes say that plaintiff was “[n]ot exercising regularly” and/or had “poor exercise
habits[.]”46 The fact that plaintiff was riding his bike for an unknown amount of time each
day does not mean that he was not as limited as Dr. Kidder opined. Finally, the ALJ cited
to Dr. Kidder’s testimony that plaintiff’s BMI was at times lower than 30.47 But, Dr. Kidder
also recognized that at times, plaintiff’s BMI was higher than 30.48 The evidence cited by
the ALJ does not provide support for her finding that Dr. Kidder’s opinion was unsupported
by his other testimony at the hearing. Thus, this was not a legitimate reason for the ALJ to
discount Dr. Kidder’s opinion.
The second reason that the ALJ gave for discounting Dr. Kidder’s opinion was that
it was inconsistent with the record as a whole. In support of this finding, the ALJ cited to

44

Admin. Rec. at 49-50.

45

Admin. Rec. at 49.

46

Admin. Rec. at 525, 527, 612. One treatment note stated that plaintiff experienced
“symptoms when riding his mountain bike around Jewel Lake in the summer.” Admin. Rec.
at 633. This note did not indicate that plaintiff was riding his bike daily.
47

Admin. Rec. at 50.

48

Admin. Rec. at 50.
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four examples of treatment notes in which Dr. Cornelius supposedly found that plaintiff’s
lungs were clear and he had “nearly non-stop speech,” but only one of the examples cited by
the ALJ was actually a treatment note from Dr. Cornelius.49 The other examples were
treatment notes from PAC Glick which made no mention of clear lungs or non-stop speech.50
The ALJ also pointed out that plaintiff did not “appear to have presented for specialized care
by a pulmonologist despite being advised to do so. . . .”51 The ALJ cited to an August 8,
2018 treatment note from PAC Glick that plaintiff had “seen a pulmonologist in the past but
not recently or on a regular basis.”52 The record does show that there was an approximate
one-year time period, between June 2017 and August 2018, when plaintiff did not see his
pulmonologist.53 But, this alone does not constitute substantial evidence supporting the
ALJ’s finding that Dr. Kidder’s opinion was inconsistent with the record as a whole. Thus,
the second reason the ALJ gave for discounting Dr. Kidder’s opinion was not legitimate.
But, even if the reasons the ALJ gave for discounting Dr. Kidder’s opinion were
legitimate, there is still a problem with ALJ’s RFC as it pertains to plaintiff’s limitations
related to his physical impairments. Besides Dr. Kidder’s opinion, there were four other

49

Admin. Rec. at 542.

50

Admin. Rec. at 524, 551, 570.

51

Admin. Rec. at 22.

52

Admin. Rec. at 551.

53

Admin. Rec. at 586, 590.
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opinions in the record related to plaintiff’s physical impairments. The ALJ found three of
these opinions, those of Dr. Cornelius, NP Schuerman, and PAC Glick, unpersuasive and one
of these opinions, that of Dr. Fraser, persuasive. This means that the ALJ’s RFC as it
pertains to plaintiff’s physical limitations was largely based on Dr. Fraser’s opinion, as hers
was the only physical limitation opinion that the ALJ found persuasive. On November 16,
2017, Dr. Fraser opined that plaintiff could occasionally lift/carry 50 pounds; frequently
lift/carry 25 pounds; stand/walk for 6 hours; sit for 6 hours; was unlimited as to pushing/pulling; could occasionally climb ramps/stairs; could never climb ladders/ropes/scaffolds;
could frequently balance, stoop, kneel, crouch, and crawl; and should avoid concentrated
exposure to humidity, fumes, odors, dusts, gases, and poor ventilation.54 The ALJ found Dr.
Fraser’s opinion persuasive “because [it was] supported by a discussion of the medical
evidence of record existing at the initial level and [was] largely consistent with the abovedescribed record as a whole.”55 But, Dr. Fraser’s opinion was offered in 2017, just as Dr.
Cornelius’ and NP Schuerman’s opinions were, albeit in November of 2017, rather than June
of 2017. The ALJ found the latter two opinions unpersuasive, even though they were
consistent with Dr. Kidder’s opinion in terms of plaintiff’s capacity to stand/walk and lift,56
54

Admin. Rec. at 96-97.

55

Admin. Rec. at 26.

56

On June 16, 2017, NP Schuerman opined that plaintiff could stand/walk less than
2 hours per day and could rarely lift 20 pounds or less. Admin. Rec. at 459-460. On June
10, 2017, Dr. Cornelius opined that plaintiff could stand/walk for 2 hours, could occasionally
(continued...)
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because they were offered in June 2017, which was prior to plaintiff quitting smoking,57 and
the medical evidence of record shows that his respiratory conditions started to improve
somewhat after he stopped smoking. Although Dr. Fraser offered her opinion in November
2017, which was apparently after plaintiff quit smoking, the medical evidence she reviewed
would have been almost exactly the same as what Dr. Cornelius and NP Schuerman had to
consider. The only additional medical evidence that Dr. Fraser had were two treatment notes
from Dr. Cornelius, one from July 2017 and one from November 2017,58 neither of which
indicated that plaintiff’s respiratory conditions were improving. At both visits, Dr. Cornelius
continued to prescribe Dulera, Proventil, Combivent, Singulair, and supplemental oxygen.
If Dr. Cornelius’ and NP Schuerman’s opinions were unpersuasive because they were offered
prior to plaintiff’s respiratory conditions improving due to smoking cessation, then it follows
that the ALJ should have also found Dr. Fraser’s opinion unpersuasive for the same reason.
Because Dr. Fraser’s opinion was based on largely the same pre-smoking-cessation evidence
as Dr. Cornelius’ and NP Schuerman’s opinions, it cannot constitute substantial support for

56

(...continued)
lift/carry less than 10 pounds, and could rarely lift/carry 10 pounds. Admin. Rec. at 420-421.
57

Admin. Rec. at 25. Although the record is a bit ambiguous as to when plaintiff
stopped smoking, there are several references that indicate that he specifically stopped in
June 2017. Admin. Rec. at 524, 551, 614, 617. There is one treatment note that indicates
that he was still smoking some in July 2017. Admin. Rec. at 532. There is one treatment
note that says he quit in 2016. Admin. Rec. at 563. At the hearing, plaintiff testified
generally that he had quit two years ago. Admin. Rec. at 66.
58

Admin. Rec. at 529 and 533.
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the ALJ’s RFC as it pertains to the limitations related to plaintiff’s physical impairments.
Because Dr. Fraser’s opinion was the only opinion the ALJ relied on in this respect, the
ALJ’s RFC is not supported by substantial evidence.
Plaintiff next argues that the ALJ failed to consider whether his somatic symptom
disorder was causing additional mental or physical limitations.
Somatic symptom and related disorders “are characterized by
physical symptoms or deficits that are not intentionally produced
or feigned, and that, following clinical investigation, cannot be
fully explained by a general medical condition, another mental
disorder, the direct effects of a substance, or a culturally
sanctioned behavior or experience. These disorders may also be
characterized by a preoccupation with having or acquiring a
serious medical condition that has not been identified or
diagnosed. Symptoms and signs may include, but are not
limited to, pain and other abnormalities of sensation, gastrointestinal symptoms, fatigue, a high level of anxiety about
personal health status, abnormal motor movement, pseudoseizures, and pseudoneurological symptoms, such as blindness
or deafness.”
Jimenez v. Comm’r of Social Security Admin., 413 F. Supp. 3d 993, 999 (D. Ariz. 2019)
(quoting 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.07). Plaintiff argues that “[t]he ALJ did
not consider whether [his] somatic symptom disorder was causing additional mental or
physical limitations beyond those that would be expected based on the objective evidence.”59
But, plaintiff does not identify any additional mental or physical limitations he believes the
ALJ should have included as a result of his somatic symptom disorder. Without such

59

Plaintiff’s Brief Consistent with the Court’s Briefing Order at 12, Docket No. 22.
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identification, there is no basis for finding that the ALJ failed to adequately consider
plaintiff’s somatic symptom disorder.
Finally, plaintiff argues that the ALJ erred in terms of the order of testimony at the
administrative hearing. At the hearing, the ALJ had the two medical experts testify first,
prior to any testimony from plaintiff. Plaintiff argues that this violated agency policy as set
forth in the Commissioner of Social Security’s Hearings, Appeals, and Litigation Manual
(“HALLEX”), an internal Social Security Administration policy manual. HALLEX I-2-670(b) provides:
The ME may attend the entire hearing, but this is not required.
If the ME was not present to hear pertinent testimony, such as
testimony regarding the claimant’s current medications or
sources and types of treatment, the ALJ will summarize the
testimony for the ME on the record.
Here, the two medical experts testified prior to plaintiff testifying and the ALJ did not
provide the medical experts with a summary of plaintiff’s testimony as he had not yet
testified. Plaintiff argues that his testimony was pertinent testimony relating to his symptoms
and limitations. Plaintiff argues that the agency requires an ALJ to comply with the policies
set forth in the HALLEX. SSR 13-2p provides, in pertinent part, that “[w]e require
adjudicators at all levels of administrative review to follow agency policy, as set out in the
Commissioner’s regulations, SSRs, Social Security Acquiescence Rulings (ARs), and other
instructions, such as the Program Operations Manual System (POMS), Emergency Messages,
and the Hearings, Appeals and Litigation Law manual (HALLEX).” “SSRs are issued by the

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Commissioner to clarify the Commissioner’s regulations and policies.” Kolvick v. Astrue,
Case No. 10–1804–JCC, 2011 WL 4626014, at *9 (W.D. Wash. July 1, 2011). “Although
they do not have the force of law, they are nevertheless given deference ‘unless they are
plainly erroneous or inconsistent with the [Social Security] Act or regulations.’” Id. (quoting
Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989)). Thus, plaintiff argues that the ALJ was
required to follow HALLEX I-2-6-70(b) and her failure to do so was error.
Defendant argues that plaintiff’s reliance on SSR 13-2p is misplaced because SSR 132p pertains to the evaluation of cases involving drug addiction and alcoholism, which this
case does not involve. Defendant also argues that following the publication of SSR 13-2p
in 2013, district courts throughout the Ninth Circuit have continued to conclude that the
HALLEX is not binding on ALJs or legally enforceable by federal courts. See, James S.C.
v. Saul, Case No. CV 19-5991-KS, 2020 WL 3491565, at *10 (C.D. Cal. June 25, 2020)
(citing Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1073 (9th Cir. 2010)
(HALLEX and POMS “are not binding on ALJs and are not legally enforceable by federal
courts”); Ashlock v. Colvin, Case No. 3:15-cv-05767 DWC, 2016 WL 3438490, at *5, n.2,
(W.D. Wash. June 22, 2016) (quoting Lowry v. Barnhart, 329 F.3d 1019, 1023 (9th Cir.
2003) (noting that “the Ninth Circuit has determined the HALLEX does not impose
‘judicially enforceable duties’”).
As plaintiff is quick to point out, in two recent cases, the court found that the ALJ
was required to comply with HALLEX I-2-6-70(b).

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See Steele v. Saul, Case No.

5:20-cv-0007-HRH, 2021 WL 653024, at *5 (D. Alaska Feb. 19, 2021); Quick v. Saul, Case
No. 3:20-cv-0197-HRH, 2021 WL 653023, at *4-5 (D. Alaska Feb. 19, 2021). But in Steele,
defendant did not argue that HALLEX I-2-6-70(b) was not binding; rather, defendant simply
argued that it did not apply in that case because Steele’s testimony was not “pertinent.”
Similarly in Quick, defendant argued that Quick’s testimony was not “pertinent” because it
was uncorroborated symptom testimony. In neither case did defendant argue that the
HALLEX did not impose judicially enforceable duties or that the plaintiff’s reliance on SSR
13-2p was misplaced because SSR 13-2p pertains to the evaluation of cases involving drug
addiction and alcoholism.
Several courts have rejected arguments similar to the one plaintiff advances here in
part because SSR 13-2p pertains to the evaluation of cases involving drug addiction and
alcoholism. See Ronquillo v. Saul, Case No. 1:19-cv-1665 JLT, 2021 WL 614637, at *4
(E.D. Cal. Feb. 17, 2021); Mark S. v. Comm’r, Social Security Admin., Case No.
3:19-cv-00629-BR, 2020 WL 1917332, at *4 (D. Or. April 20, 2020); Jeanne E. v. Saul, Case
No. 6:18-cv-01722-SB, 2020 WL 602279, at *5 (D. Or. Feb. 7, 2020); Kathleen S. v. Saul,
No. 3:19-cv-00651, 2020 WL 353602, at *7 (S.D. Cal. Jan. 21, 2020); Hollen v. Comm’r of
Social Security, Case No. 3:15-cv-2357-GPC-DHB, 2017 WL 1075194, at *9 (S.D. Cal.
March 22, 2017). And, “‘even after the promulgation of SSR 13-2p on February 20, 2013,
the Ninth Circuit has continued to cite Roberts and Lockwood for the proposition that the
Agency’s internal policy manuals such as HALLEX do not give rise to any legally

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enforceable rights.” Ronquillo, 2021 WL 614637, at *4 (quoting Kathleen S., 2020 WL
353602, at *7).
The Ninth Circuit has maintained its determination that
HALLEX “does not carry the force of law.” See, e.g., Wilson v.
Berryhill, 732 Fed. App’x 504, 507 (9th Cir. 2018) (declining to
review an assertion of error for failure to comply with
HALLEX); see also McGowan v. Saul, 833 Fed. App’x 138 (9th
Cir. Jan. 6, 2021) (finding the ALJ “did not commit reversible
error” by failing to comply with HALLEX “because the ALJ’s
noncompliance with HALLEX is not legally enforceable”);
Barreras v. Saul, 803 Fed. App’x 70 (9th Cir. 2020) (finding it
was “inconsequential” that the ALJ acted contrary to policies in
HALLEX because the manual does not “impose[] judicially
enforceable duties on either the ALJ or this court”) (citation
omitted).
Id.
Based on the arguments defendant has raised in this case, arguments that were not
raised in Steele or Quick, the court must conclude that the ALJ was not required to comply
with HALLEX I-2-6-70(b). Even after the promulgation of SSR 13-2p, the Ninth Circuit has
plainly continued to take the position that the HALLEX does not create judicially enforceable
duties.
But even if the court were to find the HALLEX judicially enforceable, the ALJ’s
failure to follow it in this case was harmless. “ALJ errors in social security cases are
harmless if they are ‘inconsequential to the ultimate nondisability determination. . . .’”
Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (quoting Stout, 454 F.3d at 1055–56).
“‘[A] reviewing court cannot consider [an] error harmless unless it can confidently conclude

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that no reasonable ALJ, when fully crediting the testimony, could have reached a different
disability determination.’” Id. (quoting Stout, 454 F.3d at 1055–56). “‘[W]here the
circumstances of the case show a substantial likelihood of prejudice, remand is appropriate
so that the agency can decide whether re-consideration is necessary.’” Id. (quoting McLeod
v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011)). “By contrast, where harmlessness is clear and
not a borderline question, remand for reconsideration is not appropriate.’” Id. (quoting
McLeod, 640 F.3d at 888).
Plaintiff has not shown that he suffered any prejudice by having the medical experts
testify first because both experts testified that they had reviewed plaintiff’s treatment
records,60 which contained sufficient information about plaintiff’s current medications and
symptoms. Plaintiff has not cited to any specific harm that he suffered because the ALJ did
not comply with HALLEX I-2-6-70(b), other than to argue that the medical opinions offered
by Dr. Kidder and Dr. Buechner were inherently flawed due to this problem. But, plaintiff
must point to some specific information that he believes the medical experts did not have
because they had not heard his testimony or a summary of his testimony. Because he has not
done so, even if it were error for the ALJ to not comply with HALLEX I-2-6-70(b), that error
was harmless.
However, the ALJ’s error as to the medical source opinions related to plaintiff’s
limitations flowing from his physical impairments was not harmless. Thus, the court must

60

Admin. Rec. at 48, 54.
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consider whether to remand this matter for an immediate award of benefits or for further
proceedings. “Remand for further administrative proceedings is appropriate if enhancement
of the record would be useful.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)
(emphasis omitted). “Conversely, where the record has been developed fully and further
administrative proceedings would serve no useful purpose, the district court should remand
for an immediate award of benefits.” Id. The court follows a three-step analysis to
determine whether a remand for benefits would be appropriate. “First, [the court] must
conclude that ‘the ALJ has failed to provide legally sufficient reasons for rejecting evidence,
whether claimant testimony or medical opinion.’” Brown-Hunter v. Colvin, 806 F.3d 487,
495 (9th Cir. 2015) (quoting Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014)).
“Second, [the court] must conclude that ‘the record has been fully developed and further
administrative proceedings would serve no useful purpose.’” Id. (quoting Garrison, 759 F.3d
at 1020). “Third, [the court] must conclude that ‘if the improperly discredited evidence were
credited as true, the ALJ would be required to find the claimant disabled on remand.’” Id.
(quoting Garrison, 759 F.3d at 1021). But, “even if all three requirements are met, [the
court] retain[s] ‘flexibility’ in determining the appropriate remedy” and “may remand on an
open record for further proceedings ‘when the record as a whole creates serious doubt as to
whether the claimant is, in fact, disabled within the meaning of the Social Security Act.’”
Id. (quoting Garrison, 759 F.3d at 1021).

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Here, a remand for further proceedings is necessary so that the ALJ can properly
consider the medical source statements.
Conclusion
The final decision of the Commissioner is reversed, and this matter is remanded for
further proceedings.
DATED at Anchorage, Alaska, this 1st day of April, 2021.
/s/ H. Russel Holland
United States District Judge

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