Thomas v. Astrue

Filing 20

DECISION AND ORDER: This matter is REVERSED and REMANDED to the Commissioner for further proceedings. (see order for full details). Signed by Judge Sharon L. Gleason on 01/08/2013. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
JEFFERY O. THOMAS,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

Case No. 4:12-cv-00004-SLG

DECISION AND ORDER
Jeffery Thomas initiated this Social Security action in federal District Court after
exhausting his administrative remedies.1 The matter has been fully briefed by the parties. 2
For the reasons set forth below, this matter is REVERSED and REMANDED to the
Commissioner for further proceedings consistent with this decision.
FACTUAL AND PROCEDURAL BACKGROUND
Mr. Thomas filed an application for disability insurance benefits with the Social
Security Administration on June 23, 2009 and an application for supplemental security
income on January 13, 2010. 4 Mr. Thomas alleged a disability onset date of July 1, 2005. 5
He asserted that he had balance problems, slurred speech, vision problems, and damage to
[his] nervous system,”

and that “these problems are getting worse each year.” 6

2

Docket 17 (Thomas’ Br.); Docket 18 (Def.’s Br.); Docket 19 (Reply).

4

Administrative Record at 16 [hereinafter A.R.].

5

A.R. 16; see also A.R. 83.

6

A.R. 82.

Both

applications were initially denied by the agency. 7 His subsequent request for a hearing
before an Administrative Law Judge (ALJ) was granted, and a hearing lasting approximately
40 minutes was held on December 8, 2010. 8 At the hearing, Mr. Thomas testified on his own
behalf. He was not represented by an attorney. An independent vocational expert also
testified.
At the time of the hearing, Mr. Thomas was 41 years old. 9

He indicated he is

unmarried and lives with his 13 year-old child. 10 He stated that he cooks, cleans and shops
for groceries. 11

He indicated that grocery shopping is difficult because the fluorescent

lighting affects his balance. 12 Mr. Thomas also testified that he does not have any problem
driving. 13
Mr. Thomas testified that he had worked as a construction equipment mechanic with
Great Northwest from 1997 until July 1, 2005. During those years, his annual income ranged
from approximately $37,000 to over $84,000. 14 Initially, he was a regular mechanic, but was

7

A.R. 82.

8

A.R. 82.

9

A.R. 60.

10

A.R. 456.

11

A.R. 456.

12

A.R. 457.

13

A.R. 457.

14

A.R. 73.

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eventually promoted to the master mechanic of the shop. 15 His work included welding and
line boring. 16 He testified that he left Great Northwest because he developed a problem with
his eyes and “couldn’t see the computer any more.” 17 He indicated that doctors could not
find out what was wrong with him. 18 The medical records in the file showed that Mr. Thomas
had several emergency room visits because of lost vision in his right eye in the fall of 2005. 19
After he left Great Northwest in July 2005, Mr. Thomas did part-time excavation work
and temporary jobs including “handyman stuff . . . yard cleaning and foundation work” until
approximately 2008. 20 At the time of the hearing in December 2010, Mr. Thomas testified he
had not done any of this work for at least one and a half years, explaining that “Once I found
out what was going on, I just kind of said no more.” 21 He added “I knew I was having a lot of
problems, but I couldn’t find a doctor to pinpoint what it was.” 22
Mr. Thomas believes that the fumes he inhaled when he worked at Great Northwest
have caused his symptoms. 23 He testified to suffering from mental ailments including severe

15

A.R. 463.

16

A.R. 462, 463.

17

A.R. 463.

18

A.R. 463.

19

A.R. 168, 200, 203.

20

A.R. 446.

21

A.R. 447.

22

A.R. 447.

23

A.R. 448, 449, 71-72.

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short-term memory loss, 24 as well as physical impairments including issues with his nerves, 25
weakness and pain in his wrists and entire body, 26 severe vertigo, 27 severe cold sensitivity, 28
poor vision, 29 and strength problems. 30 He testified the nerves in his body hurt, and that he
feels pain at a level of eight on a scale of one to ten. 31 He further testified that because of
his nerve pain, he has trouble sleeping and often wakes up in the middle of the night in
pain. 32 He testified that he does not have any problems with walking, 33 but that he cannot sit
still and needs to move around about every twenty minutes while sitting. 34
Mr. Thomas indicated that he has relied primarily on holistic medicine to address his
symptoms and has undergone heavy metal detoxification treatment for several years. 35 He

24

A.R. 449.

25

A.R. 448.

26

A.R. 450.

27

A.R. 450.

28

A.R. 451.

29

A.R. 451.

30

A.R. 452.

31

A.R. 453.

32

A.R. 454.

33

A.R. 455. But see A.R. 132 (Function Report completed by Mr. Thomas, dated Jan. 25, 2010,
indicating that “walking is fine, balance is difficult.”).
34

A.R. 455.

35

A.R. 448.

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testified that these treatments cause his body to pulsate and worsen his eyesight. 36 The
health care records reflect that Mr. Thomas received treatment and regular lab work from
naturopath Lisa Del Alba, N.D., beginning in early 2008, and naturopath Amy Derksen, N.D.,
beginning in November 2009. The record contains two reports from Dr. Derksen, dated
December 15, 2009 and December 9, 2010, describing Mr. Thomas’ symptoms of fatigue,
vertigo/dizziness, bilateral neuropathies of the upper and lower limbs, balance and
coordination issues, and cognitive deficits. 37 Dr. Derksen’s reports contain a diagnosis of
heavy metal toxicity. 38 Dr. Del Alba’s notes in the record reflect the same symptoms and
diagnosis and include several lab results which Dr. Del Alba interpreted as indicative of the
presence of heavy metals in Mr. Thomas’ system. 39 At the time of the hearing, the record
indicates that Mr. Thomas was taking ten different over-the-counter medicines for “heavy
metal detox.” 40 The naturopaths are the only two health care providers identified in the
record who have provided treatment to, as opposed to merely examining, Mr. Thomas since
October 2005.

36

A.R. 450-51.

37

A.R. 375, 391.

38

A.R. 375, 391.

39

A.R. 229-335.

40

A.R. 105.

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The administrative record indicates that Mr. Thomas filed a claim for workers’
compensation benefits at some point in 2009. 41 In that claim, he alleged that his “illness
happened from breathing toxic fumes in the [Great Northwest] shop without proper
ventilation.” 42
Elizabeth Kohnen, M.D., M.P.H., was retained by the Social Security Administration to
evaluate Mr. Thomas. In her report dated November 25, 2009, she described Mr. Thomas’
delivery of his medical history as “somewhat difficult to follow sometimes” and opined that he
had “neurologic/cognitive defects that may or may not have been associated with the [alleged
fume] exposures.” 43 She assessed Mr. Thomas’ vision as 20/30 in the right eye and 20/25 in
the left eye. 44
Dean Zuelsdorf, Psy.D., was retained by the Social Security Administration to
complete a consultative psychological evaluation of Mr. Thomas.

In his report dated

December 5, 2009, he diagnosed Mr. Thomas with a cognitive disorder and severe shortterm memory deficits and recommended a complete neuropsychological battery of tests to
assess possible brain damage. 45 There is no indication in the record that these tests were
conducted.

41

A.R. 71-72.

42

A.R. 71.

43

A.R. 342.

44

A.R. 25 (referring to A.R. 342).

45

A.R. 353.

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Jordan Firestone, M.D., Ph.D., M.P.H., an attending physician at Harborview Medical
Center in Seattle and Board-certified neurologist, conducted an independent medical exam of
Mr. Thomas on February 25, 2010. 46

The exam was requested by Great Northwest’s

insurers to investigate Mr. Thomas’ workers’ compensation claim. Specifically, Dr. Firestone
was “asked to opine regarding the potential association between Mr. Thomas’ symptom
complex and his work at Great Northwest Incorporated.”47 In addition to a full neurological
evaluation, including a follow-up MRI, Dr. Firestone reviewed Mr. Thomas’ lab results and
“did not find any evidence that [Mr. Thomas] ha[d] been poisoned by metal exposures at
work.” 48 Instead, Dr. Firestone diagnosed Mr. Thomas with multiple sclerosis (MS), and
wrote in his report that the “brain MRI scan shows findings that are classic for multiple
sclerosis.” 49 The MRI report and other underlying test results are not in the record. Dr.
Firestone gave Mr. Thomas materials on MS and encouraged him to seek treatment for that
condition. 50
Dr. Arthur Lewy, Ph.D., completed a mental residual functional capacity (RFC)
assessment of Mr. Thomas for the Social Security Administration on December 8, 2009. 51

46

A.R. 393.

47

A.R. 393.

48

A.R. 399-400.

49

A.R. 399.

50

A.R. 400.

51

A.R. 369-71; Docket 17 at 14.

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The RFC was based on Dr. Lewy’s review of the file; he did not examine Mr. Thomas. Dr.
Lewy characterized Mr. Thomas as “markedly limited” in his “ability to interact appropriately
with the general public.” 52 At the hearing, the ALJ questioned Mr. Thomas about his ability to
interact with people:
Q: “Do you have any problems with people in general?”
A: “No.”
Q: “Getting along with them or anything like that?”
A: “No.” 53
The ALJ did not include Dr. Lewy’s limitation in his RFC calculation.
At the hearing, the ALJ posed hypothetical questions to an independent vocational
expert. The expert testified that a hypothetical person of Mr. Thomas’ same age, education,
and work experience with the limitations described by the ALJ would not be able to perform
Mr. Thomas’ past work. 54 Using the ALJ’s hypotheticals, the expert then testified that there
were jobs that existed in significant numbers in the national and regional economies which he
believed Mr. Thomas could perform on a full-time basis, including helper in the manufacturing
industry, change person with slot-key machines in the amusement/recreation industry, and
regular laborer in a store. 55

52

A.R. 370.

53

A.R. 457.

54

A.R. 465, 66.

55

A.R. 467-69.

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Based upon the hearing testimony and evidence in the record, the ALJ found that Mr.
Thomas was not disabled as defined under the Social Security Act. 56 On December 2, 2011,
the Appeals Council denied Mr. Thomas’ request for review. 57
Mr. Thomas, now represented by counsel, timely sought judicial review of the ALJ’s
findings pursuant to 42 U.S.C. § 405(g) of the Social Security Act.

Mr. Thomas seeks

reversal of the ALJ’s decision, or in the alternative, remand to the ALJ for a rehearing. 58
The Defendant opposes the requested relief, and maintains that the denial of benefits
is supported by substantial evidence and free of legal error. 59
DISCUSSION
When conducting a Social Security disability determination, the ALJ follows a
sequential five-step process. 60

At Step 1, the ALJ determines whether the claimant is

engaged in substantial gainful activity. 61

At Step 2, the ALJ determines whether the

claimant’s alleged impairment is sufficiently severe to limit his ability to work. 62 At Step 3, the
ALJ determines whether the alleged impairment is listed in 20 C.F.R. § 404.1520. If so, the

56

A.R. 29.

57

A.R. 5.

58

Docket 1 at 2-3.

59

Docket 18 at 12.

60

20 C.F.R. § 404.1520(a)(1).

61

20 C.F.R. § 404.1520(a)(4)(i).

62

20 C.F.R. § 404.1520(a)(4)(ii).

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claimant is considered disabled and the inquiry ends. 63 If not, the ALJ then determines the
claimant’s RFC, or the most work the claimant can still do despite his limitations. 64 At Step 4,
the ALJ uses the RFC to determine if the claimant can perform relevant work that he has
performed in the past. 65 At Step 5, the ALJ uses the RFC to determine if the claimant can
engage in any other type of substantial gainful work that exists in the national economy. 66
The claimant bears the burden on Steps 1 through 4; at Step 5, the burden shifts to the
Social Security Commissioner. 67
In this case, at Step 1 the ALJ determined that Mr. Thomas had not engaged in
substantial gainful activity since July 1, 2005. 68 At Step 2, the ALJ determined that Mr.
Thomas had the severe impairments of “status-post optic neuritis of the right eye and a
cognitive disorder.” 69 At Step 3, the ALJ determined that these impairments did not meet or
medically equal one of the impairments listed in 20 C.F.R. §404, Subpart P, Appendix 1. 70
The ALJ then determined that Mr. Thomas had the RFC to perform medium work, with a
limitation “to work that requires only occasional balancing; no climbing of ladders, ropes, or
63

20 C.F.R. § 404.1520(a)(4)(iii).

64

20 C.F.R. § 404.1545.

65

20 C.F.R. § 404.1520(a)(4)(iv).

66

20 C.F.R. § 404.1520(a)(4)(v).

67

Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).

68

A.R. 18.

69

A.R. 18.

70

A.R. 22.

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scaffolding; the avoidance of concentrated exposure to extreme cold and the avoidance of
moderate exposure to moving and hazardous machinery and unprotected heights; and
avoidance of chemicals and airborne irritants such as fumes, dusts, and gasses.”71 The RFC
also limited Mr. Thomas “to work that involves simple routine and repetitive tasks involving
simple work related decisions with few if any workplace changes.” 72 At Step 4, the ALJ
determined that Mr. Thomas was unable to perform any of his past relevant work. 73 At Step
5, the ALJ determined that Mr. Thomas was able to perform work that existed in significant
numbers in the national economy, specifically a “helper in manufacturing industry,” “change
keeper,” and “vend[o]r for amusement facility[.]” 74 As a result, the ALJ concluded that Mr.
Thomas was not disabled from July 1, 2005 through the date of his decision on January 13,
2011. 75
I.

Standard of Review.
The ALJ’s denial of benefits to Mr. Thomas should be set aside only if the decision
was based on legal error or not supported by substantial evidence. 76 A decision is based on

71

A.R. 23.

72

A.R. 23.

73

A.R. 27.

74

A.R. 28.

75

A.R. 16.

76

Chaudhry v. Astrue, 688 F.3d 661, 668 (9th Cir. 2012) (citing Berry v. Astrue, 622 F.3d 1228, 1231
(9th Cir. 2010)).
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legal error if it is premised on improper legal standards. 77 Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” 78 If the evidence is equivocal, and “can support either affirming or reversing the
ALJ's conclusion,” this Court may not substitute its own judgment for that of the ALJ. 79 But
when conducting its review, this Court must “consider the entire record as a whole and may
not affirm simply by isolating a ‘specific quantum of supporting evidence.’” 80
II.

Analysis.
Mr. Thomas argues that the ALJ erred at Step 2 by failing to follow the proper

procedure for evaluating Mr. Thomas’ alleged mental impairments and by failing to develop
the record with regard to a potential diagnosis of multiple sclerosis. Mr. Thomas also argues
that the ALJ erred by finding Mr. Thomas a non-credible witness, by improperly calculating
the RFC, and by presenting incomplete hypotheticals to the vocational expert.
A. The ALJ properly applied 20 C.F.R. § 404.1520a at Step Two.
20 C.F.R. § 404.1520a lays out a special four-step technique for an ALJ to use at Step
2 when evaluating alleged mental impairments.

77

Mr. Thomas asserts that the ALJ failed to

Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005).

78

Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Richardson v. Perales, 402 U.S. 389,
401 (1971)).
79

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citing Flaten v. Sec., Health &
Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)).
80

Id. (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)).

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correctly apply this technique. 81 In Keyser v. Commissioner Social Security Administration,
the Ninth Circuit explained the correct manner for the ALJ to apply the process:
[A]n ALJ must determine whether an applicant has a medically
determinable mental impairment, [20 C.F.R.] § 404.1520a (b), rate the
degree of functional limitation for four functional areas, id. § 404.1520a(c),
determine the severity of the mental impairment (in part based on the
degree of functional limitation), id. § 404.1520a(c)(1), and then, if the
impairment is severe, proceed to step three of the disability analysis to
determine if the impairment meets or equals a specific listed mental
disorder, id. § 404.1520a(c)(2). 82
The four functional areas are “[a]ctivities of daily living; social functioning; concentration,
persistence, or pace; and episodes of decompensation.”83 The ALJ’s written decision “must
incorporate the pertinent findings and conclusions based on the technique” and “must include
a specific finding as to the degree of limitation in each of the functional areas.” 84 Failure to
do so requires remand. 85
The ALJ assessed Mr. Thomas’ abilities in the four functional areas as follows:
In activities of daily living, the claimant has moderate restriction for the
reasons noted below.
In social functioning, the claimant has mild difficulties for the reasons
noted below.

81

Docket 17 at 34 (referencing Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721 (9th Cir. 2011)).

82

Keyser, 648 F.3d at 725.

83

20 C.F.R. § 404.1520a(c)(3).

84

Keyser, 648 F.3d at 725 (citing 20 C.F.R. § 404.1520a(e)(4) (emphasis added in Keyser)).

85

Id. at 726.

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With regard to concentration, persistence or pace, the claimant has
moderate difficulties for the reasons noted below.
As for episodes of decompensation, the claimant has experienced no
episodes of decompensation, which have been of extended duration. 86
Based on this assessment and the evidence in the record, the ALJ concluded that “[t]he
‘paragraph C’ criteria [we]re not satisfied[.]” 87 This Court finds that the ALJ properly followed
the procedure required by 20 C.F.R. §404.1520a(e) and Keyser in evaluating Mr. Thomas’
mental impairments.
B. The ALJ failed in his duty to develop the record with regard to a potential MS
diagnosis at Step Two.
Mr. Thomas argues that the ALJ failed to develop the record with regard to the
potential MS diagnosis. 88 The ALJ has an independent duty to fully and fairly develop the
record and to assure that the claimant’s interests are considered. 89 When the claimant is
unrepresented, the ALJ must be especially diligent in exploring all relevant facts. 90 A further
duty to develop the record is triggered when there is ambiguous evidence or when the record
is inadequate to allow for proper evaluation of the evidence. 91 While the claimant bears the
burden of proving his disability at Steps One through Four, “[t]he ALJ's affirmative duty to

86

A.R. 22.

87

A.R. 22.

88

Docket 17 at 17.

89

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

90

Id.

91

Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001).

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assist a claimant to develop the record further complicates the allocation of burdens.” 92
Failing in this duty implicates both the legal error standard and the substantial evidence
standard: rejecting ambiguous evidence “without substantiated grounds for doing so
constitute[s] legal error.” 93
Here, Mr. Thomas was not represented throughout the administrative process. While
Mr. Thomas did not assert in his disability application that he had MS, there is considerable
evidence in the record that supports a medical diagnosis of MS at odds with Mr. Thomas’
naturopathic diagnosis of heavy metal contamination.
At the hearing, Mr. Thomas testified about Dr. Firestone’s diagnosis as follows: “I have
been to Harborview for worker’s comp, and they say it’s MS. The other two doctors say no,
it’s not MS . . .” 94 Mr. Thomas himself characterized this as a “conflict.” 95 The ALJ asked Mr.
Thomas about the last time he “saw a medical doctor, an M.D.—not an N.D., but an M.D.” 96
Mr. Thomas responded “that’d be Harborview [Medical Center]. That’s when they say I got
MS.” 97 The ALJ then asked if Mr. Thomas had undergone testing for MS, which Mr. Thomas

92

Tackett v. Apfel, 180 F.3d 1094, 1098 n.3 (9th Cir. 1999) (emphasis removed) (citing 20 C.F.R. §
404.1512(d)).
93

Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996).

94

A.R. 459.

95

A.R. 459

96

A.R. 459.

97

A.R. 459.

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confirmed, testifying that “[t]hey gave me an MRI and everything[.]” 98

The ALJ did not

question Mr. Thomas any further about the MS diagnosis.
In the written decision, the ALJ described Dr. Firestone as having conducted a
“consultative examination” of Mr. Thomas. 99 Mr. Thomas argues that the use of this term
misrepresents Dr. Firestone’s report as the product of a Social Security Administrationrequested consultation pursuant to 20 C.F.R. § 404.1519.

That regulation defines a

“consultative examination” as “a physical or mental examination or test purchased for [the
claimant] at the Social Security Administration’s] request and expense.” The case law of this
Circuit indicates that an ALJ should specify the context of a physician’s exam. In Reddick v.
Chater, the Ninth Circuit clearly differentiated between “Social Security consulting examiners”
and an “insurance carrier’s consulting examiner.” 100

Dr. Firestone did not conduct a

“consultative examination” as defined under the regulations; rather, he was the insurance
carrier’s consulting examiner. But Mr. Thomas has not identified case law indicating that a
consultative examination ordered by the Social Security Administration should be given a
different degree of weight from the opinion of an insurance carrier’s consulting examiner.
Thus, Mr. Thomas has failed to establish any harm resulting from the ALJ’s characterization
of Dr. Firestone ‘s report as a “consultative examination.”

98

A.R. 460.

99

A.R. 24.

100

Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998).

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But the ALJ did err in giving little or no weight to Dr. Firestone’s MS diagnosis.
Although the ALJ wrote that he gave Dr. Firestone’s opinion great weight, the ALJ’s findings
indicate that this was in reference only to Dr. Firestone’s conclusion that Mr. Thomas did not
suffer from heavy metal poisoning and his description of Mr. Thomas’ symptoms. 101 The ALJ
characterized Dr. Firestone’s MS diagnosis as an “outlier,” explaining that it was a “single
diagnosis” without any follow up exams. 102 And yet the ALJ noted a “pattern of multiple
diagnos[e]s of both neurological and cognitive defects…which are hallmarks of potential
multiple sclerosis.”103 This Court finds that the ALJ’s determination that Mr. Thomas did not
suffer from heavy metal poisoning was supported by substantial evidence; based on the
administrative record, Mr. Thomas’ symptoms were not consistent with that ailment. 104
Rather, Mr. Thomas’ symptoms were consistent with a diagnosis of MS, although Mr.
Thomas himself did not accept that diagnosis. Thus, the record was ambiguous with regard
to Mr. Thomas’ potential MS diagnosis. And the record is incomplete. For example, Dr.
Firestone’s report does not include the results of the underlying tests and MRI that were
administered to Mr. Thomas at Harborview, but rather only includes Dr. Firestone’s summary
of the results. In these circumstances, the ALJ’s duty to develop the record was triggered.

101

Compare A.R. 26 (giving Dr. Firestone’s opinion “great weight”) with A.R. 27 (not including Dr.
Firestone’s MS diagnosis in summary of impairments).

102

A.R. 24. But see A.R. 399.

103

A.R. 24.

104

See, e.g., A.R. 155-60 (documents on metal poisoning causes and symptoms appended to Mr.
Thomas’ Recent Medical Treatment form).
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The Defendant argues that even if the ALJ erred in not developing the record, any
error was harmless because Mr. Thomas “did not meet his burden to show harm.” 105 But if
the ALJ, upon developing the record, had determined that Mr. Thomas suffered from MS to a
degree that qualified as a listed impairment under 20 C.F.R. § 404, 106 the ALJ would have
found Mr. Thomas disabled at Step 3 of the analysis. Thus, remand for further exploration of
Mr. Thomas’ potential MS diagnosis is clearly warranted.
C. The ALJ erroneously found Mr. Thomas’ testimony non-credible.
The ALJ found that Mr. Thomas’ “statements concerning the intensity, persistence and
limiting effects of [his] symptoms [we]re not credible,” 107 and noted that Mr. Thomas’
“statements have been inconsistent with his allegations.” 108 Mr. Thomas argues the ALJ’s
adverse credibility assessment was erroneous because the ALJ did not take into
consideration Mr. Thomas’ mental confusion. 109 The Defendant responds that “[t]he ALJ
reasonably relied on the three medical opinions and Plaintiff’s statements about his activities

105

Docket 18 at 5.

106

20 C.F.R. Part. 404, Subpart P, App. 1, § 11.09 (MS is a listed impairment when diagnosed with
“A. Disorganization of motor function as described in 11.04B; or B. Visual or mental impairment as
described under the criteria in 2.02, 2.03, 2.04, or 12.02; or C. Significant, reproducible fatigue of
motor function with substantial muscle weakness on repetitive activity, demonstrated on physical
examination, resulting from neurological dysfunction in areas of the central nervous system known to
be pathologically involved by the multiple sclerosis process.”).

107

A.R. 24.

108

A.R. 26.

109

Docket 17 at 19.

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to reject Plaintiff’s allegations that his functional abilities were more limited than the ALJ
determined.” 110
In evaluating the credibility of a claimant’s testimony about his subjective symptoms,
an ALJ must conduct a two-part analysis. In the first part, known as the Cotton test, 111 the
ALJ conducts a threshold inquiry to determine whether the claimant has presented “objective
medical evidence of an underlying impairment ‘which could reasonably be expected to
produce the pain or other symptoms alleged.’” 112 If so, and if there is no affirmative evidence
that the claimant is malingering, the ALJ continues to the second part of the analysis, which
requires him to give “specific, clear and convincing reasons” before rejecting the claimant’s
testimony. 113

An ALJ may use ordinary techniques of credibility evaluation, such as

considering inconsistencies between the claimant’s conduct and testimony and whether the
claimant’s daily activities are inconsistent with his alleged symptoms. 114
Here, the ALJ found at the first step of the credibility analysis that Mr. Thomas’
“medically determinable impairments could reasonably be expected to cause the alleged

110

Docket 18 at 10.

111

Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986).

112

Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (quoting Bunnell v. Sullivan, 947 F.2d 341,
344 (9th Cir. 1991)).
113

Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Lingenfelter v. Astrue, 504 F.3d
1028, 1036 (9th Cir. 2007)).
114

Id. at 1112 (internal citations and quotation marks omitted).

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symptoms[.]” 115 However, at the second step, the ALJ found that Mr. Thomas’ “statements
concerning the intensity, persistence and limiting effects of these symptoms [we]re not
credible[.]”116

The ALJ provided several reasons for this finding.

First, he cited the

“discrepancies within the medical record and between the claimant’s testimony and the
medical record.” 117 Specifically, the ALJ discussed Mr. Thomas’ “assertion of metal toxicity”
as unsupported by “medically acceptable . . . diagnostic techniques” and Mr. Thomas’
unsupported assertion at the hearing that he had been diagnosed with diabetes. 118 Second,
regarding the potential MS diagnosis, the ALJ wrote that Mr. Thomas’ “assertions of his
capabilities as well as the findings of his examining physicians” did not indicate that his
potential multiple sclerosis made him “incapable of performing all basic work activities.” 119
The ALJ also discussed Mr. Thomas’ assertions regarding his vision difficulties, finding that
the activities in which Mr. Thomas reported engaging—such as driving and hunting—as well
as the vision tests administered by Dr. Kohnen, “belie[d] the claimant’s assertion of a
disabling visual impairment.” 120

115

A.R. 24.

116

A.R. 24.

117

A.R. 24.

118

A.R. 24.

119

A.R. 25.

120

A.R. 25 (referencing A.R. 344 (vision test results)).

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The inconsistency between the medical evidence and Mr. Thomas’ allegations of
metal toxicity does not warrant an adverse credibility determination. The record contains
objective medical evidence of MS which could reasonably be expected to produce Mr.
Thomas’ symptoms. The fact that Mr. Thomas believed metal toxicity to be the cause of his
symptoms does not make his testimony as to the severity of those symptoms less credible.
The ALJ also based his adverse credibility determination on the fact that Mr. Thomas
“alleged at the hearing that he had been diagnosed with diabetes,” but the record contained
no such diagnosis. 121 At the hearing, Mr. Thomas gave the following testimony about an
emergency room visit in or around 2002: “And then the second time I went back [to an eye
doctor] to get eyeglasses, she sent me to the emergency room. And they came up – oh,
you’ve got diabetes.

And they pumped me full of steroids.

And I said, I don’t have

diabetes.”122 Mr. Thomas then testified that “diabetes just didn’t add up to what I was doing”
and that, as a result of medical doctors’ inability to help him, he turned to naturopathic
doctors. 123

This Court finds that the ALJ’s reliance on that evidence for a credibility

determination against Mr. Thomas was not supported by substantial evidence.
“A claimant’s credibility becomes important at the stage [of the five-step analysis]
where the ALJ is assessing the residual functional capacity, because the claimant’s

121

A.R. 24.

122

A.R. 448-49.

123

A.R. 449.

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subjective statements may tell of greater limitations than can medical evidence alone.”124 In
this regard, the ALJ found Mr. Thomas’ assertions that he could not work to be not credible in
light of the basic living activities he acknowledged doing. The ALJ found the “claimant has
no difficulty with his personal care needs or hygiene, cares for his teenage son, heats his
home with firewood which he chops and hauls, prepares meals, cares for a dog, drives a
vehicle, rides a bicycle, and reports no restrictions in his ability to walk distances.”125 But
claimants need not “vegetate in a dark room” 126 to be found eligible for benefits, and “should
not be penalized for attempting to lead normal lives in the face of their limitations.” 127 And
“many home activities are not easily transferable to what may be the more grueling
environment of the workplace, where it might be impossible to periodically rest or take
medication.” 128 While Mr. Thomas testified that he did the above-mentioned activities, he
testified that he could only do so with pain and difficulty. 129 Thus, this Court finds that the
ALJ’s adverse credibility determination based on the fact that Mr. Thomas’ basic living
activities were at odds with his assertion that he had difficulty doing work activities was not
supported by substantial evidence.

124

Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001).

125

A.R. 26.

126

Molina, 674 F.3d at 1113 (quoting Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir.1987)).

127

Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998).

128

Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989).

129

A.R. 453.

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The ALJ also relied on the failure of the medical evidence to support Mr. Thomas’
alleged symptoms, stating that “at no point in the claimant’s medical record is there any
indication that the claimant’s status-post optic neuritis causes disabling visual impairment.” 130
But “finding a claimant’s symptoms to be unsupported by objective medical evidence is not
an appropriate basis for discounting testimony regarding subjective complaints. 131 Rather,
the claimant’s statements about the intensity, persistence, and limiting effects of the
claimant’s pain or symptoms are evaluated in relation to objective medical evidence. 132
Congress has “recognized the inability of medical science to objectively verify the extent of
pain experienced by an individual.” 133 This is because “symptoms can sometimes suggest a
greater severity of impairment than is demonstrated by objective medical findings alone[.]”134
Dr. Kohnen’s report describes Mr. Thomas’ self-reported symptoms as occurring
periodically, not consistently. 135

Thus, there is no apparent contradiction between Dr.

Kohnen’s report and Mr. Thomas’ representations to support the ALJ’s statement that Mr.

130

A.R. 25.

131

Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (“a claimant need not present clinical
or diagnostic evidence to support the severity of his pain” (citing Gonzalez v. Sullivan, 914 F.2d 1197,
1201 (9th Cir. 1990)). See also Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884 (9th Cir. 2006)
(citing Light).
132

Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005).

133

Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991).

134

Id.

135

A.R. 341 (“He reports it sometimes is difficult to look at the speedometer. . . He says that
sometimes he can’t see out one eye or the other.”) (emphasis added).

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Thomas’ reported activities “belie[d] the claimant’s assertion of a disabling visual
impairment.” 136 As for the difference the ALJ found between Mr. Thomas’ alleged hobbies
and his vision problems, this Court finds that the record is not clear in this regard. For
example, in a Function Report dated January 25, 2010, Mr. Thomas listed among his
hobbies “TV, snowmachine, 4-wheeler, boating, hunting fishing,” but said he now engaged in
those activities “not at all- except for TV- since it is too difficult.” 137 There and at other points
in the record, there is some confusion between the hobbies Mr. Thomas reports engaging in
currently versus the hobbies he has enjoyed in the past; it seems possible that Mr. Thomas
engaged in activities such as hunting and fishing for the early portion of the period for which
he claims disability, but stopped doing so as his symptoms worsened. Given this ambiguity
in the record, the reasons the ALJ presented for rejecting Mr. Thomas’ testimony as to his
vision symptoms were not “specific, clear and convincing” as required within this Circuit. 138
Moreover, the ALJ must give full consideration to all of the evidence presented relating
to subjective complaints. 139 The ALJ did not adequately consider the evidence provided by
the naturopaths, which substantiated Mr. Thomas’ subjective symptom testimony. 140 While

136

A.R. 25.

137

A.R. 131.

138

Molina, 674 F.3d at 1112 (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)).

139

Bunnell, 947 F.2d at 345.

140

See, e.g., A.R. 232 (Notes of Lisa Del Alba dated Feb. 5, 2008) (“eyes just ‘blur out’ . . . ‘memory
shot,’ brain fuzzy”); A.R. 230 (Notes of Lisa Del Alba dated June 27, 2008 (“feeling really tired . . . has
‘no circulation’ in extremities”); A.R. 229 (Notes of Lisa Del Alba dated July 16, 2009) (“can’t focus
both eyes @ same time (episodically)”; “Right leg quits moving & rt arm episodically ‘stops working’”).

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the diagnosis of a naturopathic doctor will not establish the existence of impairment, an ALJ
should consider the evidence provided by naturopathic doctors when evaluating the severity
of a claimant’s impairment. 141 Here, the ALJ appropriately rejected the naturopathic doctors’
ultimate opinions regarding the cause of Mr. Thomas’ symptoms, 142 but did not provide
reasons supported by substantial evidence for disregarding their reports and notes regarding
Mr. Thomas’ symptoms.
For the reasons described above, the Court finds that the ALJ’s adverse credibility
determination against Mr. Thomas based on the record at that time was not supported by
substantial evidence.
D. The RFC and hypothetical questions should be revisited on remand as
warranted.
Mr. Thomas argues that the ALJ’s RFC assessment and the hypothetical questions
based on the RFC did not incorporate “gait instability,” a classic symptom of MS, or “Dr.
Lewy’s assessment of markedly impaired as to interaction with the public.”143 Because this
Court has determined that the ALJ erred in failing to develop the record with regard to Mr.
Thomas’ possible MS diagnosis and in finding Mr. Thomas’ subjective symptom testimony
non-credible based on the record before the ALJ at that time, the RFC and hypotheticals
should be addressed anew on remand as warranted.

141

20 CFR § 404.1513(d)(1) (listing naturopaths as acceptable sources of “evidence . . . to show the
severity of your impairment(s) and how it affects your ability to work.”).

142

A.R. 27.

143

Docket 17 at 38.

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CONCLUSION
For the reasons discussed above, this matter is REVERSED and REMANDED for
further proceedings consistent with this Decision and Order.

DATED at Anchorage, Alaska this 8th day of January, 2013.

/s/ Sharon L. Gleason
United State District Judge

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