Fanning v. Saul

Filing 17

ORDER GRANTING 14 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING 15 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. The decision of the Commissioner is REVERSED and REMANDED for further administrative proceedings. This file is CLOSED. Signed by Chief Judge Stanley A Bastian. (LTR, Case Administrator)

Case 2:20-cv-00367-SAB

ECF No. 17

1

filed 09/07/21

PageID.1209 Page 1 of 32

2

FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

3

Sep 07, 2021

4

SEAN F. MCAVOY, CLERK

5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF WASHINGTON

8
9
10 JEREMIAH F., 1
11

Plaintiff,

12

v.

No. 2:20-CV-00367-SAB
ORDER GRANTING

13 KILOLO KIJAKAZI, ACTING

PLAINTIFF’S MOTION FOR

14 COMMISSIONER OF SOCIAL

SUMMARY JUDGMENT AND

15 SECURITY, 2

DENYING DEFENDANT’S

Defendant.

16

MOTION FOR SUMMARY
JUDGMENT

17
18
19

Before the Court are Plaintiff’s and Defendant’s Motions for Summary

20 Judgment, ECF Nos. 14 and 15. Plaintiff is represented by Chad Hatfield.
21
22

1

Pursuant to the recommendation of the Committee on Court Administration and

23 Case Management of the Judicial Conference of the United States, Plaintiff’s name
24 is partially redacted.
25

2

Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9,

26 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo
27 Kijakazi is substituted for Andrew M. Saul as the defendant in this suit. No further
28 action need be taken to continue this suit. See 42 U.S.C. § 405(g).
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 1

Case 2:20-cv-00367-SAB

ECF No. 17

filed 09/07/21

PageID.1210 Page 2 of 32

1 Defendant is represented by Jacob Phillips and Tim Durkin. The motions were
2 considered without oral argument. Having considered the briefing and the
3 applicable law, the Court grants Plaintiff’s motion and denies Defendant’s motion.
Jurisdiction

4

Plaintiff filed an application for disability insurance benefits and

5

6 supplemental social security income on January 26, 2018, alleging a disability
7 onset date of May 15, 2013.3 Plaintiffs’ claims were initially denied on April 24,
8 2018, and again upon reconsideration on December 10, 2018. At Plaintiff’s
9 request, the ALJ held a hearing on January 2, 2020. On February 11, 2020, the ALJ
10 issued an opinion affirming the denial of Plaintiff’s claims for benefits.
Plaintiff requested review of the ALJ decision, which the Appeals Council

11

12 denied on August 7, 2020. Plaintiff then filed a timely appeal with the United
13 States District Court for the Eastern District of Washington on October 7, 2020.
14 ECF No. 1. The matter is before this Court under 42 U.S.C. § 405(g).
15

Sequential Evaluation Process

16

The Social Security Act defines disability as the “inability to engage in any

17 substantial gainful activity by reason of any medically determinable physical or
18 mental impairment which can be expected to result in death or which has lasted or
19 can be expected to last for a continuous period of not less than twelve months.” 42
20 U.S.C. § 1382c(a)(3)(A). A claimant shall be determined to be under a disability
21 only if his impairments are of such severity that the claimant is not only unable to
22
23

3

Both Plaintiff’s counsel and the ALJ state that Plaintiff’s disability onset date was

24 May 15, 2013. ECF No. 14 at 2; AR at 17. However, in Plaintiff’s applications for
25 disability and supplemental social security income, he states that his disability
26 onset date was May 15, 2016. AR 215-222. But then, in Plaintiff’s January 31,
27 2018 disability report, he states that he stopped working on May 15, 2013. Id. at
28 243. Thus, the Court assumes a disability onset date of May 15, 2013.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 2

Case 2:20-cv-00367-SAB

ECF No. 17

filed 09/07/21

PageID.1211 Page 3 of 32

1 do his previous work, but cannot, considering claimant’s age, education, and work
2 experiences, engage in any other substantial gainful work which exists in the
3 national economy. 42 U.S.C. § 1382c(a)(3)(B).
The Commissioner has established a five-step sequential evaluation process

4

5 for determining whether a person is disabled. 20 C.F.R. § 416.920(a)(4); Bowen v.
6 Yuckert, 482 U.S. 137, 140–42 (1987). The steps are as follows:
(1) Is the claimant engaged in substantial gainful activities? 20 C.F.R.

7

8 § 404.1520(b). Substantial gainful activity is work done for pay and requires
9 compensation above the statutory minimum. Id.; Keyes v. Sullivan, 894 F.2d 1053,
10 1057 (9th Cir. 1990). If the claimant is engaged in substantial activity, benefits are
11 denied. 20 C.F.R. § 404.1520(b). If he is not, the ALJ proceeds to step two.
(2) Does the claimant have a medically severe impairment or combination of

12

13 impairments? 20 C.F.R. § 404.1520(c). If the claimant does not have a severe
14 impairment or combination of impairments, the disability claim is denied. A severe
15 impairment is one that lasted or must be expected to last for at least 12 months and
16 must be proven through objective medical evidence. 20 C.F.R. § 404.1509. If the
17 impairment is severe, the evaluation proceeds to the third step.
(3) Does the claimant’s impairment meet or equal one of the listed

18

19 impairments acknowledged by the Commissioner to be so severe as to preclude
20 substantial gainful activity? 20 C.F.R. § 404.1520(d); 20 C.F.R. § 404 Subpt. P.
21 App. 1. If the impairment meets or equals one of the listed impairments, the
22 claimant is conclusively presumed to be disabled. Id. If the impairment is not one
23 conclusively presumed to be disabling, the evaluation proceeds to the fourth step.
24 Before considering Step 4, the ALJ must first determine the claimant’s residual
25 functional capacity. 20 C.F.R. § 404.1520(e). An individual’s residual functional
26 capacity is his ability to do physical and mental work activities on a sustained basis
27 despite limitations from his impairments.
28 //
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 3

Case 2:20-cv-00367-SAB

ECF No. 17

filed 09/07/21

PageID.1212 Page 4 of 32

(4) Does the impairment prevent the claimant from performing work he has

1

2 performed in the past? 20 C.F.R. § 404.1520(f). If the claimant is able to perform
3 his previous work, he is not disabled. Id. If the claimant cannot perform this work,
4 the evaluation proceeds to the fifth and final step.
(5) Is the claimant able to perform other work in the national economy in

5

6 view of his age, education, and work experience? 20 C.F.R. § 404.1520(g). The
7 initial burden of proof rests upon the claimant to establish a prima facie case of
8 entitlement to disability benefits. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
9 1999). This burden is met once a claimant establishes that a physical or mental
10 impairment prevents him from engaging in his previous occupation. Id. At Step
11 Five, the burden shifts to the Commissioner to show that the claimant can perform
12 other substantial gainful activity. Id.
Standard of Review

13

The Commissioner’s determination will be set aside only when the ALJ’s

14

15 findings are based on legal error or are not supported by substantial evidence in the
16 record as a whole. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992) (citing
17 42 U.S.C. § 405(g)). Substantial evidence is “more than a mere scintilla,”
18 Richardson v. Perales, 402 U.S. 389, 401 (1971), but “less than a preponderance.”
19 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). Substantial
20 evidence is “such relevant evidence as a reasonable mind might accept as adequate
21 to support a conclusion.” Richardson, 402 U.S. at 401. The Court must uphold the
22 ALJ’s denial of benefits if the evidence is susceptible to more than one rational
23 interpretation, one of which supports the decision of the administrative law judge.
24 Batson v. Barnhart, 359 F.3d 1190, 1193 (9th Cir. 2004). The Court reviews the
25 entire record. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). “If the evidence
26 can support either outcome, the court may not substitute its judgment for that of the
27 ALJ.” Matney, 981 F.2d at 1019.
28 //
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 4

Case 2:20-cv-00367-SAB

ECF No. 17

filed 09/07/21

PageID.1213 Page 5 of 32

A decision supported by substantial evidence will be set aside if the proper

1

2 legal standards were not applied in weighing the evidence and making the decision.
3 Brawner v. Secr’y of Health & Human Servs., 839 F.2d 432, 433 (9th Cir. 1988).
4 An ALJ is allowed “inconsequential” errors as long as they are immaterial to the
5 ultimate nondisability determination. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d
6 1050, 1055 (9th Cir. 2006).
Facts

7

Plaintiff was approximately 32 years old at the time of his alleged disability

8

9 onset date. Plaintiff has a high school education. He states that he has never been
10 married, but lives with his children and girlfriend.
In Plaintiff’s disability report dated January 31, 2018, he alleged that he had

11

12 both physical and mental limitations. Specifically, he alleged that he had a neck
13 injury; arthritis in the back; degenerative discs in the back; rod in the left femur;
14 depression; memory loss; low movement in the right arm; whole body nerve pain;
15 and bulging discs in the lower back. AR at 243. Plaintiff also stated that he
16 suffered from migraines and head pain. Id. at 245.
The ALJ’s Findings

17

On February 11, 2020, the ALJ issued an opinion affirming denial of

18

19 benefits. The ALJ concluded that Plaintiff had not been under a disability from
20 May 15, 2013 to the date of the decision. Id. at 18.
At step one, the ALJ found that Plaintiff has not engaged in substantial

21

22 gainful activity since May 15, 2013, the alleged disability onset date. Id. at 19.
At step two, the ALJ found that Plaintiff had the following severe

23

24 impairments: obesity; degenerative disc disease of the lumbar and cervical spine,
25 status-post cervical fusion; headaches; and right elbow impingement and synovitis,
26 status-post two surgeries. Id. at 19-21.
27 //
28 //
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 5

Case 2:20-cv-00367-SAB

ECF No. 17

filed 09/07/21

PageID.1214 Page 6 of 32

At step three, the ALJ found that Plaintiff did not have an impairment or a

1

2 combination of impairments that meets or medically equals any Listing. Id. at 213 23.
The ALJ concluded that Plaintiff had a residual function capacity to

4

5 perform:
light work as defined in 20 CFR 404.1567(b) and 416.967(b). He
6
could and/or carry 20 pounds occasionally and 10 pounds frequently,
7
stand and/or walk for 6 hours in an 8-hour day, and sit for 6 hours in
an 8-hour day. He require[s] a sit/stand option every 30 minutes for 5
8
minutes while remaining at workstation. He was limited to no
9
push/pull with the right upper extremity. He was limited to no
climbing of ladders/ropes/scaffolds. He could occasionally climb
10
ramps/stairs, occasionally stoop, rarely crouch but never kneel or
11
crawl. He could occasionally reach overhead with his right dominant
upper extremity and frequently handle/finger with the right dominant
12
upper extremity. He must avoid concentrated exposure to extreme
13
cold or heat, wetness, humidity and hazards such as dangerous
moving machinery and unprotected heights. He also must avoid bright
14
sunlight/flashing lights. For the period beginning November 15, 2016,
15
the undersigned finds that the claimant has had the residual functional
capacity to perform sedentary work as defined in 20 CFR 404.1567(a)
16
and 416.967(a). He is limited to lifting and/or carrying up to 10
17
pounds occasionally and 10 pounds frequently, standing and/or
walking up to 2 hours in an 8-hour day, and sitting for 6 hours in an 818
hour day. He otherwise has continued with the same postural,
19
manipulative and workplace limitations as described above.
20 Id. at 23.
21

At step four, the ALJ found that Plaintiff had no past relevant work. Id. at

22 30.
23

At step five, the ALJ found that Plaintiff was not disabled and that he was

24 capable of performing work that exists in significant numbers in the national
25 economy, including Cashier II, Production Assembler, Garment Sorter, Final
26 Assembler, or Semi-conductor Bonder. Id. at 30-31.
27 //
28 //
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 6

Case 2:20-cv-00367-SAB

ECF No. 17

filed 09/07/21

PageID.1215 Page 7 of 32

Issues for Review

1
2

1. Did the ALJ err in improperly evaluating the medical opinion evidence?

3

2. Did the ALJ err by dismissing Plaintiff’s severe impairments at step two?

4

3. Did the ALJ err in failing to conduct an adequate analysis and failing to find
Plaintiff disabled as meeting or equaling a Listing at step three?

5
6

4. Did the ALJ err by rejecting Plaintiff’s subjective complaints?

7

5. Did the ALJ err in failing to conduct an adequate analysis at step five?
Discussion

8

1. Did the ALJ err in improperly evaluating the medical opinion evidence?

9

Plaintiff argues that the ALJ failed to properly evaluate the opinions of (1)

10

11 treating Physician Assistant Andrew Becker, PAC (“Mr. Becker”); and (2)
12 Disability Determination Services state agency psychologists Dr. Matthew Comrie,
13 PsyD (“Dr. Comrie”) and Dr. Rebecca Alexander, PhD (“Dr. Alexander”). ECF
14 No. 14 at 8-12.
First, Plaintiff argues that the ALJ was clearly erroneous in concluding that

15

16 Mr. Becker’s opinion lacked corroborating medical evidence from the record and
17 did not cite sufficient evidence. Id. at 10. Plaintiff argues that Mr. Becker cited
18 specific objective evidence from the medical record that supported his opinion and
19 that therefore the ALJ improperly substituted his own opinion for that of Mr.
20 Becker. Id. Second, Plaintiff argues that the ALJ improperly rejected Dr. Comrie’s
21 and Dr. Alexander’s opinions regarding Plaintiff’s mental limitations. Id. at 12.
22 Plaintiff argues that the ALJ provided “the same boilerplate findings” in rejecting
23 these doctors’ opinions, but cited no evidence in the record to justify his rejection.
24 Id.
25

In response, Defendant argues that the ALJ properly applied the new

26 regulations governing Social Security disability determinations, which focus on
27 whether a medical opinion is persuasive based on factors of consistency and
28 supportability. ECF No. 15 at 5-8. First, for Mr. Becker, Defendant argues Mr.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 7

Case 2:20-cv-00367-SAB

ECF No. 17

filed 09/07/21

PageID.1216 Page 8 of 32

1 Becker’s assessment that Plaintiff had never been able to reach with either arm was
2 inconsistent with many other assessments finding that Plaintiff had adequate range
3 of motion in his arms throughout the relevant period. Id. at 9. Mr. Becker also
4 concluded that Plaintiff’s limitations would prevent him from staying on-task for
5 large portions of the day and would cause consistent absences—however,
6 Defendant argues that many other treatment notes showed that Plaintiff’s
7 neurological and musculoskeletal functioning was only slightly limited. Id. at 9-10.
Second, for Drs. Alexander and Comrie, Defendant argues that there was

8

9 substantial evidence supporting the ALJ’s rejection of their opinions. For Dr.
10 Alexander, Defendant argues that the ALJ reasonably rejected her opinion because
11 it lacked an objective, clinical basis and because it was inconsistent with Plaintiff’s
12 other mental status examinations, which consistently showed him functioning
13 largely within normal limits. Id. at 11-12. As for Dr. Comrie, Defendant argues
14 that the ALJ reasonably rejected his opinion because it was inconsistent with the
15 record. Dr. Comrie concluded that Plaintiff could not carry out detailed tasks on a
16 consistent basis, understand and remember detailed instructions, or set goals
17 independently—however, the ALJ noted that Plaintiff could care for his seven18 year-old daughter, shop, manage finances, use computers, engage with friends in a
19 bowling league, and go about his daily life without receiving counseling or
20 treatment for his mental conditions. Id. at 13-14.
In reply, Plaintiff argues the ALJ committed harmful error by failing to

21

22 provide sufficient reasoning for discounting the opinions of Mr. Becker, Dr.
23 Alexander, and Dr. Comrie. ECF No. 16 at 2. Plaintiff states that the ALJ did not
24 cite to any record evidence or make any specific findings when rejecting these
25 opinions, even though all three medical sources cited to objective medical evidence
26 to support their findings. Id. at 2-6.
27 //
28 //
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 8

Case 2:20-cv-00367-SAB

ECF No. 17

filed 09/07/21

PageID.1217 Page 9 of 32

1

Legal Standard

2

When evaluating the persuasiveness of medical opinions, the two most

3 important factors for the ALJ to consider are supportability and consistency. 20
4 C.F.R. § 404.1520c(b)(2). Supportability means that “[t]he more relevant the
5 objective medical evidence and supporting explanations presented by a medical
6 source are support to his or her medical opinion(s) or prior administrative medical
7 finding(s), the more persuasive the medical opinions or prior administrative
8 medical finding(s) will be.” Id. at § 404.1520c(c)(1). Consistency means that “[t]he
9 more consistent a medical opinion(s) or prior administrative medical finding(s) is
10 with the evidence from other medical sources and nonmedical sources in the claim,
11 the more persuasive the medical opinion(s) or prior administrative medical
12 finding(s) will be.” Id. at § 404.1520c(c)(2).
13

In addition to supportability and consistency, the ALJ must also consider the

14 medical source’s relationship with the claimant; the length of the treatment
15 relationship between the claimant and the medical source; the purpose of the
16 treatment relationship; the extent of the treatment relationship; whether the medical
17 source had an examining relationship with the claimant; the medical source’s
18 specialization; and other factors that might make a medical opinion more or less
19 persuasive. Id. at § 404.1520c(c)(1)-(5).
20

Under the previous Social Security regulations governing claims filed prior

21 to March 27, 2017, the ALJ was required to provide “clear and convincing”
22 reasons for rejecting an uncontradicted medical opinion and “specific and
23 legitimate reasons” for rejecting a contradicted medical opinion. Lester v. Chater,
24 81 F.3d 821, 830-31 (9th Cir. 1995). The Ninth Circuit has not yet addressed the
25 impact of the new regulations on the requirement that an ALJ provide “clear and
26 convincing” reasons for rejecting an uncontradicted physician’s opinion or
27 “specific and legitimate reasons” for rejecting a contradicted physician’s opinion.
28 Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995).
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 9

Case 2:20-cv-00367-SAB

1

ECF No. 17

filed 09/07/21

PageID.1218 Page 10 of 32

At least one district court has found that the new regulations do not alter

2 these standards because they are “based on evidentiary principles in administrative
3 law, and not on a hierarchy of opinions.” Patricia Jo I. v. Comm’r of Soc. Sec., No.
4 3:20-CV-5832-DWC, 2021 WL 1589522, at *3 (W.D. Wash. Apr. 23, 2021)
5 (citing Kathleen G. v. Comm. Soc. Sec., No. 2:20-cv-461-RSM (W.D. Wash. Nov.
6 10, 2020)). However, the same district court also noted that relevant Ninth Circuit
7 precedent necessarily “linked the need for such reasons to the rationale underlying
8 the hierarchy.” Patricia F. v. Saul, No. C19-5590-MAT, 2020 WL 1812233, at *4
9 (W.D. Wash. Apr. 9, 2020).
10

For sake of consistency in this District, the Court adopts the rationale and

11 holding articulated by Judge Mendoza on the issue in Emilie K. v. Saul, No. 2:2012 CV-00079-SMJ, 2021 WL 864869, *3-4 (E.D. Wash. Mar. 8, 2021), appeal
13 docketed, No. 21-35360 (9th Cir. May 10, 2021). In that case, Judge Mendoza held
14 that the ALJ did not err in applying the new regulations over Ninth Circuit
15 precedent, because the result did not contravene the Administrative Procedure
16 Act’s requirement that decisions include a statement of “findings and conclusions,
17 and the reasons or basis therefor, on all the material issues of fact, law, or
18 discretion presented on the record.” Id. at *4 (citing 5 U.S.C. § 557(c)(A)).
19 Nevertheless, it is not clear that the Court’s analysis in this matter would differ in
20 any significant respect under the “clear and convincing” standard of Lester v.
21 Chater.
Discussion

22
23

Plaintiff argues that the ALJ failed to properly evaluate the opinions of Mr.

24 Becker, Dr. Comrie, and Dr. Alexander. The Court will address each expert in turn.
25
26

a. Mr. Becker
Mr. Becker, a Physician Assistant who examined Plaintiff on January 7,

27 2020, found that Plaintiff suffered from degenerative disc disease; lumbar
28 radiculopathy; cervical radiculopathy; irritable bowel syndrome (IBS); migraine
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 10

Case 2:20-cv-00367-SAB

ECF No. 17

filed 09/07/21

PageID.1219 Page 11 of 32

1 headaches; cervical disc herniation; and chronic lumbar pack pain. AR at 1082.
2 Mr. Becker based these diagnoses on Plaintiff’s July 18, 2019 cervical MRI;
3 February 28, 2018 thoracic MRI; and April 4, 2017 lumbar MRI. Id. Due to
4 Plaintiff’s limitations, Mr. Becker concluded that Plaintiff would have three
5 debilitating headache days per week; would experience an increase in pain from
6 almost any activity and thus would need to be absent from work often for recovery;
7 could only perform sedentary work, which involved lifting/carrying a maximum of
8 10 pounds; could never do any reaching with the right and left upper extremities;
9 and would likely be off-task and unproductive over 30% of the time, assuming a
10 40-hour workweek. Id. at 1083-84.
11

The ALJ agreed with Mr. Becker’s assessment regarding Plaintiff’s

12 sedentary exertional limitations. Id. at 29. However, the ALJ found Mr. Becker’s
13 opinion regarding Plaintiff’s expected time off-task and work absenteeism
14 unpersuasive as it “lacks corroborating medical evidence from the record.” Id.
15 Specifically, the ALJ stated that—while Mr. Becker noted Plaintiff’s diagnoses,
16 imaging results, and his complaints of pain—Mr. Becker’s opinion did “not cite
17 sufficient evidence to support these extreme limitations” and therefore the ALJ
18 concluded that “the record does not provide objective evidence to support the less19 than-sedentary limitations opined.” Id.
20

The Court finds that the ALJ failed to provide legally sufficient analysis on

21 the supportability and consistency of Mr. Becker’s opinion with the medical record
22 prior to rejecting it. Earlier in his analysis, the ALJ cited to evidence in the medical
23 record, including examinations finding that Plaintiff had good range of motion in
24 his wrist, hand, and shoulder; levels of functioning within normal limits in his
25 upper and lower extremities; and—though still a guarded range of motion and
26 stiffness due to reproduced pain—generally no tenderness to palpation or pain in
27 his cervical spine/neck. Id. at 27. Though the ALJ does not mention this evidence
28 when discussing Mr. Becker’s opinion, this cited evidence suggests that the ALJ
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 11

Case 2:20-cv-00367-SAB

ECF No. 17

filed 09/07/21

PageID.1220 Page 12 of 32

1 believed that Mr. Becker’s opinion regarding Plaintiff’s limitations was
2 contradicted. However, when actually rejecting Mr. Becker’s opinion, the ALJ
3 failed to cite legitimate reasons for doing so, as is required under the law. The ALJ
4 merely concluded that Mr. Becker failed to cite to sufficient evidence to support
5 his opinion and that the record did not provide objective evidence to support the
6 severity of Plaintiff’s alleged limitations. Id. at 29. However, the ALJ did not state
7 why Mr. Becker relying on Plaintiff’s diagnoses, imaging results, and complaints
8 of pain were insufficient to support his opinion or why Drs. Fitterer’s and Hander’s
9 2018 assessments of the record were more accurate and reflective of Plaintiff’s
10 limitations than Mr. Becker’s 2020 in-person examination. Thus, because the ALJ
11 rejected Mr. Becker’s opinion without explaining its purported lack of consistency
12 or support with the record, the Court reverses and remands the case for further
13 proceedings.
14
15

b. Dr. Comrie
Dr. Comrie, a state agency psychological consultant who reviewed

16 Plaintiff’s medical records on April 23, 2018, found that Plaintiff had depressive,
17 bipolar, and related disorders; anxiety and obsessive-compulsive disorders; and
18 somatic symptom and related disorders, all of which Dr. Comrie classified as
19 severe. AR at 95-96. Dr. Comrie also found that Plaintiff would have moderate
20 limitations in understanding, remembering, or applying information; interacting
21 with others; concentrating, persisting, or maintaining pace; and adapting or
22 managing himself. Id. Specifically, Dr. Comrie stated that—while Plaintiff could
23 consistently remember and understand standard procedures and regular work
24 locations; carry out simple instructions; maintain concentration and persistence for
25 up to two hours continuously; maintain adequate attendance; and complete a
26 normal workday/workweek within normal tolerances of a competitive work
27 environment—Plaintiff would be unable to consistently perform more detailed
28 functions due to his mental limitations. Id. at 99-100.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 12

Case 2:20-cv-00367-SAB

1

ECF No. 17

filed 09/07/21

PageID.1221 Page 13 of 32

However, the ALJ rejected Dr. Comrie’s opinion regarding the severity of

2 Plaintiff’s mental limitations as unpersuasive. Id. at 29. The ALJ stated that Dr.
3 Comrie’s opinion was unsupported by the overall medical record because there
4 was no evidence of mental health treatment or ongoing counseling, therapy, or
5 medications. Id. Furthermore, the ALJ stated that Dr. Comrie’s opinion was
6 unsupported because of Plaintiff’s reported activities and demonstrated
7 functioning, which included caring for his 7-year-old daughter, getting her ready
8 for school, driving, shopping, managing finances, using computers, and engaging
9 with friends in a bowling league. Id. The ALJ stated that these activities were
10 inconsistent with a finding of a severe mental impairment. Id.
11

The Court finds that the ALJ erred in rejecting Dr. Comrie’s opinion. The

12 ALJ’s rejection of Dr. Comrie’s opinion was predicated on two main bases: (1)
13 Plaintiff’s mental limitations were not as severe as he alleged because he was not
14 receiving mental health treatment and (2) Plaintiff was still able to engage in daily
15 activities. However, the ALJ’s first basis is not supported by the medical record.
16 Dr. Comrie noted that, in January 2018, Plaintiff had been prescribed Cymbalta for
17 depression and chronic pain “with some benefit,” even though Plaintiff had no
18 “formal psychiatric history.” Id. at 96. In his review of Plaintiff’s medical records,
19 Dr. Comrie also noted that, on January 29, 2018, Plaintiff had been diagnosed with
20 depression and was prescribed Duloxetine. Id. at 94.
21

As for the ALJ’s second basis, the Ninth Circuit has instructed that “[t]he

22 Social Security Act does not require that claimants be utterly incapacitated to be
23 eligible for benefits.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989).
24 Recognizing that “disability claimants should not be penalized for attempting to
25 lead normal lives in the face of their limitations,” the Ninth Circuit has held that
26 “[o]nly if [a claimant’s] level of activity were inconsistent with his claimed
27 limitations would those activities have any bearing on his credibility.” Reddick v.
28 Chater, 157 F.3d 715, 722 (9th Cir. 1998). Here, none of the ALJ’s cited activities
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 13

Case 2:20-cv-00367-SAB

ECF No. 17

filed 09/07/21

PageID.1222 Page 14 of 32

1 are facially inconsistent with Plaintiff’s alleged mental limitations. Thus, because
2 the ALJ improperly rejected Dr. Comrie’s opinion, the Court reverses and remands
3 the case for further proceedings.
4
5

c. Dr. Alexander
Dr. Alexander, a consultative examining psychologist who examined

6 Plaintiff on April 16, 2018, found that Plaintiff had generalized anxiety disorder;
7 persistent depressive disorder; rule out borderline intellectual functioning; rule out
8 neurocognitive disorder; and somatic symptom disorder. AR at 724. Dr. Alexander
9 also concluded that Plaintiff had mild to moderate limitations in remembering and
10 processing simple instructions; interacting appropriately in the workplace and
11 socially; and managing stress and hazards—however, she stated that Plaintiff had
12 moderate to marked limitations in understanding and remembering complex
13 multistage instructions and sustaining concentration and persistence. Id. at 725.
14

The ALJ rejected Dr. Alexander’s opinion regarding Plaintiff’s impairments

15 as unpersuasive. Id. at 30. The ALJ proffered three reasons for rejecting Dr.
16 Alexander’s opinion: (1) Dr. Alexander did not have a treating relationship with
17 Plaintiff—instead, she only had a one-time evaluation with him; (2) Dr.
18 Alexander’s conclusions were based solely on Plaintiff’s subjective complaints,
19 rather than on an objective, clinical basis; and (3) Dr. Alexander’s conclusions
20 were inconsistent with Plaintiff’s other mental status screenings, which found him
21 to be largely within normal limits.
22

The Court finds that the ALJ erred in rejecting Dr. Alexander’s opinion on

23 these bases. First, contrary to the ALJ’s finding, Dr. Alexander did not solely base
24 her conclusions on Plaintiff’s subjective complaints. During her examination of
25 Plaintiff, Dr. Alexander performed a mental status exam, which tested orientation,
26 memory, information, calculations, abstract thinking, and judgment. Id. at 723.
27 Partially based on the results of this exam, Dr. Alexander concluded that Plaintiff
28 had problems with memory. See id. (finding that Plaintiff only remembered one of
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 14

Case 2:20-cv-00367-SAB

ECF No. 17

filed 09/07/21

PageID.1223 Page 15 of 32

1 three objects after three minutes); see also id. at 724 (“[Plaintiff] was a poor
2 historian during the exam in terms of dates/years and information.”). The mental
3 status exam also led Dr. Alexander to conclude that Plaintiff’s “[r]ecent and
4 immediate memory, fund of information, ability to calculate math problems,
5 abstract thinking, and judgment are below the average range.” Id. at 724.
6

Second, the mental status screenings the ALJ cited to in order to contradict

7 Dr. Alexander’s conclusions also objectively support that Plaintiff struggled with
8 memory loss. For example, at Plaintiff’s January 8, 2020 visit with Katherine
9 King, a Physician Assistant with Providence Inland Neurosurgery and Spine, Ms.
10 King noted that Plaintiff was “[p]ositive for depression and memory loss.” Id. at
11 1086. Similarly, at Plaintiff’s September 14, 2015 visit with Dr. David Gruber at
12 Providence Inland Neurosurgery and Spine, Dr. Gruber marked “Yes” to indicate
13 that Plaintiff experienced confusion and memory loss. Id. at 439. It is true that, on
14 the next page, Dr. Gruber also indicated that Plaintiff had “[n]o impairment of
15 attention, concentration, or short term memory.” Id. at 440. However, rather than
16 addressing this evidence, the ALJ merely stated that these exams showed that
17 Plaintiff’s mental status was largely within normal limits, which is not a complete
18 or accurate characterization of the record. Thus, because the ALJ improperly
19 rejected Dr. Alexander’s opinion, the Court reverses and remands the case for
20 further proceedings.
21
22

2. Did the ALJ err at step two in assessing Plaintiff’s impairments?
Plaintiff argues that the ALJ erred by rejecting some of his alleged severe

23 impairments—including myelomalacia; radiculopathy of the lumbar and cervical
24 spine; generalized anxiety disorder; persistent depressive disorder; and somatic
25 symptom disorder—as groundless. ECF No. 14 at 12-13. Plaintiff states that, when
26 properly evaluated, these impairments significantly limit his ability to perform
27 basic work activities. Id. at 13. Thus, Plaintiff argues that the Court should remand
28 so that the ALJ can consider these impairments and perform a new evaluation. Id.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 15

Case 2:20-cv-00367-SAB

1

ECF No. 17

filed 09/07/21

PageID.1224 Page 16 of 32

In response, Defendant argues that the ALJ reasonably decided step two in

2 Plaintiff’s favor, while still accounting for whether Plaintiff’s alleged severe
3 impairments were credible. ECF No. 15 at 14. Moreover, Defendant argues that,
4 when an ALJ decides step two in a claimant’s favor, the claimant is not prejudiced
5 from a step two finding and thus any alleged error is harmless. Id. Finally,
6 Defendant argues that the ALJ did not err because he considered the effects of all
7 of Plaintiff’s impairments at later steps in the evaluation. Id. at 16.
8

In reply, Plaintiff argues that the ALJ’s rejection of his alleged severe

9 impairments was not harmless error because (1) the ALJ failed to consider the
10 limitations from these impairments and (2) this rejection likely affected the
11 outcome of the disability determination. ECF No. 16 at 6.
12
13

Legal Standard
The Ninth Circuit has stated that step two of the Social Security analysis is

14 “merely a threshold determination meant to screen out week claims.” Buck v.
15 Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017). However, when the ALJ is
16 determining the claimant’s residual function capacity, the ALJ “must consider
17 limitations and restrictions imposed by all of an individual’s impairments, even
18 those that are not ‘severe.’” Id. at 1049 (internal quotation and citation omitted).
19 Thus, the Ninth Circuit has stated that the residual function capacity “should be
20 exactly the same regardless of whether certain impairments are considered ‘severe’
21 or not.” Id. (emphasis in original).
22

An ALJ’s decision not to list an impairment as severe at step two is harmless

23 error if (1) the ALJ resolves step two in the claimant’s favor (i.e., finds that the
24 claimant has severe impairments) and (2) the ALJ still considers all of the
25 claimant’s symptoms from both their severe and non-severe impairments when
26 determining residual function capacity. E.g., Vivian v. Saul, 780 F. App’x 526, 527
27 (9th Cir. 2019). However, an ALJ can commit harmful error if they omit a
28 limitation from the list of severe impairments at step two and if they fail to account
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 16

Case 2:20-cv-00367-SAB

ECF No. 17

filed 09/07/21

PageID.1225 Page 17 of 32

1 for that limitation when determining the claimant’s residual function capacity at
2 step three. Eitner v. Saul, 835 F. App’x 932, 933 (9th Cir. 2021) (“The ALJ’s
3 omission of fibromyalgia from the list of severe impairments and discrediting of
4 Claimant’s testimony regarding the condition were not harmless errors because . . .
5 the ALJ did not meaningfully consider the physical limitations of the impairment
6 in the remainder of his analysis.”).
Discussion

7

The Court finds that the ALJ erred in failing to take into account Plaintiff’s

8

9 mental limitations in determining his residual function capacity. At step two, the
10 ALJ concluded that—though Plaintiff had “medically determinable mental
11 impairments of depression, anxiety[,] and somatic symptom disorder”—these
12 impairments caused only minimal limitations in his ability to perform basic work
13 activities and therefore were non-severe. AR at 20. However, in determining
14 Plaintiff’s residual function capacity at step three, the ALJ did not analyze any
15 symptoms stemming from Plaintiff’s mental limitations, such as his difficulty with
16 memory, concentration, focus, and understanding and ability to complete tasks.
17 Instead, the ALJ merely stated “[f]or the reasons previously discussed, the
18 undersigned finds that claimant’s . . . mental conditions, including depression and
19 anxiety, are non-severe impairments within the meaning of the regulations.” Id. at
20 25. This does not constitute a “meaningful” consideration of Plaintiff’s mental
21 limitations. 4 Thus, the Court reverses and remands to the ALJ for further
22 proceedings.
23
24

4

At step two, the ALJ did state that “the undersigned considered all of the

25 claimant’s medically determinable impairments, including those that are not
26 severe, when assessing the claimant’s residual functional capacity. Id. at 20.
27 However, because the ALJ did not actually discuss any of Plaintiff’s non-severe
28 medically determinable impairments when determining his residual function
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 17

Case 2:20-cv-00367-SAB

1

ECF No. 17

filed 09/07/21

PageID.1226 Page 18 of 32

3. Did the ALJ err at step 3 by finding that Plaintiff’s impairments did not meet

2

or equal a Listing?

3

Plaintiff argues that the ALJ erred at step 3 in five different ways: (1) failing

4 to conduct an adequate analysis; (2) failing to properly consider Listing 1.04A for
5 Plaintiff’s degenerative spinal conditions; (3) failing to properly consider Listing
6 1.02B for Plaintiff’s upper extremity impairments; (4) failing to properly consider
7 Listing 11.02 for Plaintiff’s migraine headaches; and (5) failing to find Plaintiff
8 disabled. ECF No. 14 at 14. Specifically, Plaintiff argues that his medical record
9 includes evidence that he meets the threshold requirements of multiple Listings and
10 thus the ALJ’s failure to consider this evidence or these Listings constitutes
11 harmful error. Id. at 14-17.
12

In response, Defendant argues that there was substantial evidence supporting

13 the ALJ’s decision that Plaintiff was not per se disabled at step three. ECF No. 15
14 at 16. Specifically, Defendant argues that even Plaintiff’s cited evidence does not
15 support that Plaintiff met the specified Listings. Id. at 16-20.
16

In reply, Plaintiff argues that the ALJ merely made conclusory statements

17 that Plaintiff did not meet Listing 1.04A, which constitutes a failure to conduct a
18 reasonable evaluation of the objective medical evidence. ECF No. 16 at 7.
19 Additionally, Plaintiff states that the ALJ erred in failing to even consider Listings
20 1.02B and 11.02, despite the record evidence and medical opinions supporting
21 Plaintiff’s impairments matching these Listings. Id. at 7-9.
22
23

Legal Standard
If a claimant has an impairment or combination of impairments that meets a

24 condition outlined in the Listing of Impairments under 20 C.F.R. Pt. 404, the
25 claimant is presumed disabled at step three. Lewis v. Apfel, 236 F.3d 503, 512 (9th
26
27 capacity, this conclusory statement also does not constitute “meaningful”
28 consideration.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 18

Case 2:20-cv-00367-SAB

ECF No. 17

filed 09/07/21

PageID.1227 Page 19 of 32

1 Cir. 2001). In determining whether a claimant’s impairments meet a Listing, the
2 ALJ must evaluate relevant evidence. Id. An ALJ cannot conclude that a claimant
3 fails to meet a Listing simply by issuing a “boilerplate finding.” Id.
Discussion

4
5

At step three, the ALJ concluded that Plaintiff did not have an impairment or

6 combination of impairments that met one of the listings under 20 C.F.R. Part 404,
7 Subpart P, Appendix 1. AR at 21-22. In reaching this conclusion, the ALJ stated
8 that he considered Section 1.00 for Musculoskeletal System Impairments and
9 11.00 for Neurological System Impairments—specifically Listing 1.04 for
10 disorders of the spine, Listing 1.02B for major dysfunction of a peripheral joint,
11 and Listings 11.02 and 11.04 for migraines. Id. at 22-23. The Court will address
12 each of these Listings in turn.
a. Listing 1.04A

13
14

In order to for a claimant to meet Listing 1.04A, the ALJ must find that the

15 claimant:
(1)
16
17
18
19
20
21

Has a disorder of the spine, which includes, inter alia, spinal stenosis,
osteoarthritis, and degenerative disc disease;

(2)

The disorder results in compromise of a nerve root or the spinal cord;
and

(3)

The disorder is accompanied by one of the following:
(a)

Evidence of nerve root compression characterized by neuroanatomic distribution of pain, limitation of motion of the spine,
motor loss accompanied by sensory or reflex loss, and—if there
is involvement of the lower back—positive straight-leg raising
test;

(b)

Spinal arachnoiditis, confirmed by an operative note or
pathology report of tissue biopsy, or by appropriate medically
acceptable imaging, manifested by severe burning or painful
dysesthesia, resulting in the need for changes in position or
posture more than once every two hours; or

22
23
24
25
26
27
28

ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 19

Case 2:20-cv-00367-SAB

ECF No. 17

filed 09/07/21

PageID.1228 Page 20 of 32

1
2
3
4
5

(c)

Lumbar spinal stenosis resulting in pseudoclaudication,
established by findings on appropriate medically acceptable
imaging, manifested by chronic nonradicular pain and
weakness, and resulting in inability to ambulate effectively, as
defined in 1.00B2b.

6 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04A (effective November 26, 2019 to
7 February 23, 2020).
8

Listing 1.00B2b defines inability to ambulate effectively as having

9 insufficient lower extremity function to permit independent ambulation without the
10 use of a hand-held assistive device that limits the functioning of both upper
11 extremities. Id. § 1.00B2b.
12

The ALJ found that Plaintiff did not meet Listing 1.04A. Specifically, the

13 ALJ stated that “there is no objective medical evidence that claimant’s
14 degenerative disc disease with chronic neck and/or low back pain has resulted in
15 nerve root compromise with motor loss . . . accompanied by sensory or reflex loss,
16 or inability to ambulate effectively.” AR at 22. Though the ALJ conceded that
17 Plaintiff’s examinations showed chronic back and neck pain/tenderness with some
18 diminished right upper extremity strength and antalgic gait/limp at times, the ALJ
19 found that Plaintiff did not demonstrate focal motor, sensory, or reflex deficits or
20 any inability to ambulate effectively. Id.
21

The Court finds that the ALJ erred by failing to conduct a reasonable

22 evaluation of the evidence in determining whether Plaintiff met Listing 1.04A.
23 First, the ALJ already concluded that Plaintiff had multilevel degenerative disc
24 disease most prominent at C4-5 and C5-6 levels including vertebral disc spurring
25 causing mild-moderate foraminal stenosis, as well as lumbar spine degenerative
26 disc disease with significant osteoarthritis at both L4-5 and L5-S1 levels and
27 bilateral foraminal narrowing. Id. at 322-23. Second, there is evidence in the
28 medical record of nerve root encroachment. In Plaintiff’s March 4, 2017 MRI
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 20

Case 2:20-cv-00367-SAB

ECF No. 17

filed 09/07/21

PageID.1229 Page 21 of 32

1 report, Dr. Melvyn Feliciano noted that Plaintiff had “[s]able moderate bilateral
2 exiting L5 nerve root encroachment with mild L5-S1 posterior facet arthropathy.”
3 Id. at 499-500. Finally, even after Plaintiff’s surgery, there is evidence in the
4 medical record of neuroanatomic distribution of pain, id. at 627, 712; limitation of
5 motion of the spine, id. 629; and motor loss accompanied by sensory or reflex loss,
6 id. at 712-14. However, because the ALJ did not consider any of this evidence in
7 his analysis, the Court reverses and remands to the ALJ for further proceedings.
b. Listing 1.02B

8
9

In order to for a claimant to meet Listing 1.02B, the ALJ must find that the

10 claimant:
(1)
11
12

(2)

The dysfunction is characterized by gross anatomical deformity and
chronic joint pain and stiffness with signs of limitation of motion or
other abnormal motion of the affected joint, and findings on
appropriate medically acceptable imaging of joint space narrow, bony
destruction, or ankylosis of the affected joint; and

(3)

The dysfunction is accompanied by one of the following:

13
14
15
16
17
18

Has major dysfunction of a joint due to any cause;

(a)

Involvement of one major peripheral weight-bearing joint (i.e.,
hip, knee, or ankle), resulting in inability to ambulate
effectively, as defined in 1.00B2b; or

(b)

Involvement of one major peripheral joint in each upper
extremity (i.e., shoulder, elbow, or wrist-hand), resulting in
inability to perform fine and gross movements effectively, as
defined in 1.00B2c.

19
20
21
22
23

24 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.02B (effective November 26, 2019 to
25 February 23, 2020).
26

Listing 1.00B2c defines inability to perform fine and gross movements

27 effectively as having an extreme loss of function of both upper extremities that
28 interferes very seriously with the ability to independently initiate, sustain, or
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 21

Case 2:20-cv-00367-SAB

ECF No. 17

filed 09/07/21

PageID.1230 Page 22 of 32

1 complete activities (e.g., prepare a simple meal, feed oneself, or take care of
2 personal hygiene). Id. § 1.00B2c.
The ALJ found that Plaintiff did not meet Listing 1.02B. Specifically, the

3

4 ALJ stated that “there is no evidence claimant is unable to perform fine and gross
5 movements (handling/fingering) effectively.” AR at 22. The ALJ noted that
6 Plaintiff was able to attend to his personal hygiene, feed himself, perform chores,
7 drive, and even participate in a bowling league twice a week and that Plaintiff’s
8 neuromuscular exams did not show significant focal motor strength or sensory
9 deficits. Id.
The Court finds that the ALJ erred by failing to conduct a reasonable

10

11 evaluation of the evidence in determining whether Plaintiff met Listing 1.02B.
12 First, the ALJ already concluded that Plaintiff had a severe impairment of right
13 elbow impingement and synovitis, status-post two surgeries—the first surgery was
14 to remove an osteophyte/loose body and the second surgery was to address anterior
15 capsular release and posterior decompression with removal of loose body. Id. at 19,
16 26-27. Moreover, there is evidence in the medical record showing that Plaintiff
17 was unable to perform fine and gross movements effectively. During a July 25,
18 2018 exam at Lewiston Orthopaedics, Plaintiff stated that daily activities, such as
19 exercise, lifting, reaching above his head, and reaching behind his back, caused
20 elbow pain. Id. at 726. Based on this exam, Dr. Steven Boyea concluded that
21 Plaintiff had limited painful active range of motion on his right side and that he
22 was experiencing worsening degenerative arthritis of his right elbow with 2523 degree flexion contracture. Id. at 727-29. Similarly, during his January 8, 2020
24 visit with Providence Inland Neurosurgery and Spine, Plaintiff stated that he had
25 been losing feeling in his elbow and small fingers for about a year. Id. at 1085.
26 However, because the ALJ did not consider any of this evidence in his analysis, the
27 Court reverses and remands to the ALJ for further proceedings.
28 //
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 22

Case 2:20-cv-00367-SAB

1
2

ECF No. 17

filed 09/07/21

PageID.1231 Page 23 of 32

c. Listing 11.02
There is no medical listing for headaches or migraines specifically.

3 However, ALJs are instructed to use Listing 11.02, which is the most closely
4 analogous listing for migraines. POMS DI 24505.015(B)(7)(b); HALLEX DI
5 24505.015(B)(7)(B) (example 2); see also Amie H. v. Kijakazi, No. 2:20-CV6 00252-MKD, 2021 WL 3044227, at *7 (E.D. Wash. July 19, 2021). Listing 11.02
7 requires that the claimant experience severe headaches or migraines at least once a
8 week for three consecutive months, despite adherence to prescribed treatment. 20
9 C.F.R. Pt. 404, Subpt. P, App. 1, §11.02 (effective March 14, 2018 to April 1,
10 2021). Listing 11.02 also requires that migraine headaches be documented by
11 detailed descriptions of a typical migraine headache, including all associated
12 phenomena. Id.
13

The ALJ found that Plaintiff did not meet Listing 11.02. Specifically, the

14 ALJ found that “the medical evidence does not establish that claimant has had the
15 equivalent of recurrent seizures . . . resulting in effective speech or communication,
16 disorganization of motor function in two extremities resulting in extreme
17 limitation, or marked limitations in any of the areas of functioning outlined in the
18 listing.” AR at 22. Additionally, the ALJ reiterated that Plaintiff’s neurological
19 exams consistently demonstrated no focal neurologic/motor or sensory deficits, no
20 sustained disorganization of motor function, or marked limitations as outlined in
21 the listing. Id. at 22-23.
22

The Court finds that the ALJ erred by failing to conduct a reasonable

23 evaluation of the evidence in determining whether Plaintiff met Listing 11.02.
24 There is evidence in the medical record showing that Plaintiff began experiencing
25 chronic headaches in 2013, for which he provided detailed descriptions to his
26 medical providers. Id. at 433. For example, at a November 6, 2014 visit to the
27 Rockwood Neurology Center, Plaintiff stated that the headaches began a year ago,
28 never fell below a 2/10 baseline pain level, and would increase to a 9/10 pain level
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 23

Case 2:20-cv-00367-SAB

ECF No. 17

filed 09/07/21

PageID.1232 Page 24 of 32

1 “several times a week.” Id. Plaintiff stated that these headaches would sometimes
2 manifest with associated photophobia and phonophobia, but usually not nausea. Id.
3 Plaintiff continued to experience and seek medical treatment for his migraines up
4 until 2019. On January 31, 2018, Plaintiff saw Dr. Jean Thomas at St. Joseph
5 Neurology, where he reported migraines that “never resolve.” Id. at 731. Plaintiff
6 stated that his migraines worsened if he concentrated and that they caused his
7 speech to stutter. Id. He also stated that, during a very severe migraine, he
8 experienced pressure all throughout his head, but rarely had double vision. Id.
9 Finally, Plaintiff stated that he experienced nausea, but was not sure if it was due to
10 the headaches. Id.
11

There is also evidence that Plaintiff tried various forms of treatment, all to

12 no avail. For example, after the January 31, 2018 visit, Dr. Thomas concluded that
13 Plaintiff had “headaches that he says have not responded to several medications.”
14 Id. at 736. Additionally, in 2018, Plaintiff reported that he had successfully used
15 Topamax, Amitriptyline, and Duloxetine to help manage his migraines, but had to
16 stop taking these medications due to side effects. Id. at 738, 742, 751. Finally, in
17 April 2019, Plaintiff reported that his headaches returned to occurring every day.
18 Id. at 803. However, because the ALJ did not consider any of this evidence in his
19 analysis, the Court reverses and remands to the ALJ for further proceedings.
20

4. Did the ALJ err by improperly discrediting Plaintiff’s subjective complaints

21

about his symptoms?

22

Plaintiff argues that the ALJ improperly discounted his subjective

23 complaints about the nature and intensity of his limitations. ECF No. 14 at 17-18.
24 First, Plaintiff argues that the ALJ was required to provide clear and convincing
25 reasons for rejecting Plaintiff’s subjective complaints about his migraines, but
26 instead merely made a conclusory statement that Plaintiff’s symptom complaints
27 were not supported by imaging of his brain. Id. Second, Plaintiff argues that the
28 ALJ failed to even consider some of Plaintiff’s complaints—including
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 24

Case 2:20-cv-00367-SAB

ECF No. 17

filed 09/07/21

PageID.1233 Page 25 of 32

1 myelomalacia; compression of his cervical spinal cord; encroachment of the nerve
2 roots of his lumbar spine; and a history of right elbow surgeries—even though
3 these complaints were supported by objective evidence. Id. at 19-20. Finally,
4 Plaintiff states that he testified that he was unable to maintain regular employment
5 due to, inter alia, his migraines, severe pain symptoms, limited use of upper
6 extremities, difficulties ambulating, and the need to recline during the day. Id. at
7 20. However, Plaintiff argues that the ALJ failed to (1) identify what part of
8 Plaintiff’s testimony was not credible and (2) provide clear and convincing reasons
9 for finding Plaintiff not credible—instead, the ALJ merely stated that “the overall
10 medical record . . . does not support that claimant’s cervical spine/neck, or other
11 impairments, would preclude him from work entirely”. Id.
In response, Defendant argues that there was substantial evidence supporting

12

13 the ALJ’s rejection of the alleged severity of Plaintiff’s impairments. ECF No. 15
14 at 2. Specifically, Defendant argues that the ALJ reasonably relied on evidence
15 from the medical record, showing that (1) Plaintiff received treatments that
16 improved his elbow/shoulder/spine impairments and (2) Plaintiff only received
17 conservative treatment. Id. at 2-5.
In reply, Plaintiff argues that Defendant’s arguments mischaracterize the

18

19 evidence. For example, Plaintiff states that, despite Defendant’s argument that
20 Plaintiff received conservative treatment, Defendant also acknowledges that
21 Plaintiff underwent three surgeries and was prescribed hydrocodone, tramadol, and
22 migraine medications, all of which are powerful opioid narcotics only available
23 through prescription. ECF No. 16 at 10. Moreover, Plaintiff states that the medical
24 record shows that any symptom relief that he received from his treatments was
25 temporary, which the ALJ failed to address when discounting Plaintiff’s subjective
26 testimony. Id.
27 //
28 //
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 25

Case 2:20-cv-00367-SAB

1
2

ECF No. 17

filed 09/07/21

PageID.1234 Page 26 of 32

Legal Standard
The ALJ is responsible for making credibility determinations. Lingenfelter v.

3 Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). An ALJ engages in a two-step
4 analysis to determine whether a claimant’s testimony regarding subjective pain or
5 symptoms is credible. Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014).
6

“First, the ALJ must determine whether the claimant has presented objective

7 medical evidence of an underlying impairment ‘which could reasonably be
8 expected to produce the pain or other symptoms alleged.’” Id. (quoting
9 Lingenfelter, 504 F.3d at 1036). In this analysis, the claimant is not required to
10 show “that [his] impairment could reasonably be expected to cause the severity of
11 the symptom [he] has alleged; [he] need only show that it could reasonably have
12 caused some degree of that symptom,” Smolen v. Chater, 80 F.3d 1273, 1282 (9th
13 Cir. 1996). In addition, he need not produce “objective medical evidence of the
14 pain or fatigue itself, or the severity thereof.” Id.
15

Once a claimant has produced evidence of an impairment, the ALJ may not

16 discredit testimony regarding symptoms simply by asserting that they are
17 unsupported by objective evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883
18 (9th Cir. 2006). Rather, the ALJ must provide specific, cogent reasons to find that
19 the claimant is not credible. Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)
20 (citing Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990)). If the ALJ’s
21 credibility finding is supported by substantial evidence in the record, the Court
22 may not engage in second-guessing. Thomas v. Barnhart, 278 F.3d 947, 959 (9th
23 Cir. 2002). The Court will affirm the ALJ’s reasoning so long as it is clear and
24 convincing. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).
25
26

Discussion
Here, the ALJ concluded that Plaintiff suffered from the following severe

27 impairments: obesity; degenerative disc disease of lumbar and cervical spine,
28 status-post cervical fusion; headaches; right elbow impingement and synovitis,
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 26

Case 2:20-cv-00367-SAB

ECF No. 17

filed 09/07/21

PageID.1235 Page 27 of 32

1 status post-two surgeries. AR at 19. 5 However, the ALJ concluded “the overall
2 medical record . . . does not support that claimant’s cervical spine/neck, or other
3 impairments, would preclude him from work entirely” and that a “limitation to
4 light and/or sedentary exertional level work accounts for the claimant’s
5 impairments.” Id. at 27-28.
Defendant argues that there was substantial evidence supporting the ALJ’s

6

7 decision to reject Plaintiff’s symptom testimony because the objective medical
8 evidence did not support the degree of severity Plaintiff alleged. For example, first,
9 for Plaintiff’s lumbar spine degenerative disc disease, the ALJ noted that imaging
10 of Plaintiff’s lumbar spine in both May 2015 and January 2019 indicated only mild
11 degenerative changes. Id. at 25. The ALJ also noted that—though the medical
12 record indicated that Plaintiff experienced chronic low back/neck pain, a limping
13 gait, and decreased strength in his right upper extremities at times—Plaintiff’s
14 physical exams from 2014 to 2015 otherwise indicated generally normal muscle
15 strength and range of function. Id. at 25-26.
Second, for Plaintiff’s headaches, the ALJ stated that Plaintiff’s MRIs from

16

17 2014-2016 ruled out a lesion as the cause of his migraines and doctors had instead
18 told Plaintiff that his migraines were caused either from overuse of the
19 hydrocodone or from his neck/cervical spine issues. Id. at 26. Additionally, the
20 ALJ noted that Plaintiff’s neurology evaluations from 2014-2015 indicated normal
21 neuromuscular findings. Id.
Third, for Plaintiff’s right elbow impairment, the ALJ stated that—though

22

23 Plaintiff first received right elbow surgery in November 2013—other examinations
24
25

5

The ALJ also concluded that Plaintiff had medically determinable impairments of

26 gastro esophageal reflux disease (GERD); Barrett’s esophagitis; depression;
27 anxiety; and somatic symptom disorder—however, the ALJ concluded that these
28 impairments were non-severe. Id.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 27

Case 2:20-cv-00367-SAB

ECF No. 17

filed 09/07/21

PageID.1236 Page 28 of 32

1 from 2013-2014 showed that his elbow functioning was within normal limits and
2 that Plaintiff indicated no complaints of elbow pain. Id. Additionally, during a
3 December 2014 exam, the ALJ noted that—though Plaintiff reported that he could
4 not lift anything with his right arm without pain in his elbow—the exam showed
5 that he still had normal range of motion/strength and an MRI of his right elbow
6 showed only mild severity. Id. Finally, after Plaintiff underwent a second right
7 elbow surgery in June 2015, the ALJ pointed out that Plaintiff’s post-operative
8 evaluations from 2015-2018 indicated good recovery for the elbow and that it was
9 functioning generally within normal limits. Id. at 26-27.
10

Finally, for Plaintiff’s chronic neck pain, the ALJ noted that—after Plaintiff

11 underwent surgery for cervical spine fusion in June 2017—Plaintiff’s physical
12 examinations after the surgery showed a largely normal range of motion and
13 indicated no pain, despite Plaintiff’s allegations that he still experienced
14 neck/upper extremity pain. Id. at 27.
15

Defendant also argues that Plaintiff only received conservative treatment for

16 his alleged impairments, which supported the ALJ’s decision to reject his symptom
17 testimony. For example, for Plaintiff’s right elbow impairment, the ALJ cited to
18 the fact that—after Plaintiff’s June 2015 surgery—the surgeon simply advised
19 Plaintiff to “continue [] doing stretching exercises for his elbow at home daily” and
20 noted that Plaintiff could progress with activities as tolerated. Id. Similarly, for
21 Plaintiff’s chronic neck pain, the ALJ stated that—after Plaintiff’s June 2017
22 surgery—Plaintiff’s doctor stated that “there is not pathology that would suggest
23 the need for further surgery” and simply recommended that Plaintiff engage in
24 regular physical therapy and home stretching. Id. (internal citations omitted).
25 Finally, Defendant argues that the fact that Plaintiff continued to take hydrocodone
26 for his degenerative disc disease, despite recommendations that he transition off
27 the hydrocodone to another medication that would not interfere with his migraine
28 treatment, shows that he only needed or pursued conservative treatment. ECF No.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 28

Case 2:20-cv-00367-SAB

ECF No. 17

filed 09/07/21

PageID.1237 Page 29 of 32

1 15 at 5. Specifically, Defendant argues that “[h]ad Plaintiff experienced truly
2 debilitating pain due to migraine and back conditions, one could reasonably expect
3 that he would have pursued alternative treatment options.” Id.
4

The Court finds that the ALJ erred in his credibility determination and

5 improperly discounted Plaintiff’s testimony regarding the severity of his
6 limitations.
7

First, the Court finds that the ALJ’s conclusion that the objective medical

8 record did not support Plaintiff’s alleged degree of severity is not supported by
9 substantial evidence. It is true that there is evidence in the record, showing that
10 Plaintiff experienced little to no pain in the months immediately following his June
11 2017 cervical spine fusion surgery. Id. at 548, 552, 600. However, the overall
12 record shows that Plaintiff’s pain returned, and that Plaintiff continued to
13 experience headaches and limitations in his neck, elbow, and back/spine up until
14 January 2020, the latest date of Plaintiff’s submitted medical records. AR at 621,
15 627, 713-14, 726-29, 747, 1066, 1085.
16

Second, the Court finds that the ALJ’s conclusion that Plaintiff’s symptom

17 testimony was not credible because he was only receiving conservative treatment
18 for his impairments is not supported by substantial evidence. First, as Plaintiff
19 points out, the ALJ acknowledged that Plaintiff (1) underwent three surgeries for
20 his elbow and cervical spine fusion and (2) was prescribed hydrocodone and
21 tramadol for his pain and migraines, neither of which constitute “conservative
22 treatment” under any common-sense understanding of the term. ECF No. 16 at 10.
23 Second, though the ALJ states that Plaintiff only needed conservative treatment
24 after his surgeries, such as physical therapy and home stretching, this is not
25 supported by the medical record. For example, after Plaintiff reported that his pain
26 returned after his June 2015 elbow surgery, Dr. Steven Boyea, an orthopedist, told
27 Plaintiff on July 25, 2018, that doing a surgical open arthrotomy with loose body
28 removal and anterior capsular release might help with some of his symptoms, but
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 29

Case 2:20-cv-00367-SAB

ECF No. 17

filed 09/07/21

PageID.1238 Page 30 of 32

1 that eventually Plaintiff would need to have resurfacing done in the future as his
2 degenerative arthritis progressed. AR at 867. On August 3, 2018, Plaintiff also told
3 his medical provider that an orthopedist had told him that he would need an elbow
4 replacement, but that he was too young to do so, and that the orthopedist had no
5 other recommendations at that time. Id. at 738.
6

The record also shows that Plaintiff received both lumbar epidural steroid

7 injections and medial nerve branch blocks to try and alleviate his pain. However,
8 during Plaintiff’s May 2, 2019 visit to the Pain Clinic, Plaintiff stated that neither
9 of these methods provided him significant relief from the pain. Id. at 1066. Thus,
10 Wesley Wolcott, CRNA, expressed to Plaintiff that “there was not any other
11 injection” that the hospital could do that would help and that Plaintiff was not “a
12 good candidate for RFA of the medial nerve branch.” Id.
13

Finally, it seems that—in the fall of 2019—Plaintiff tried switching to

14 Baclofen and Tizandine, which led to a significant improvement in his pain
15 management. Id. at 783 (while taking Baclofen, Plaintiff reported “a lot less
16 muscle pain,” “markedly improved function,” and that he was “able to do chores
17 around the house and had energy to do things that he has not had energy to do in
18 quite a while”), 789 (while taking Tizandine, Plaintiff reported that it was also
19 helping with his back pain, which Baclofen did not). However, on October 17,
20 2019, Plaintiff reported that he had stopped taking Tizandine 4 mg, even though it
21 helped with his pain management, because it caused whole-body swelling,
22 including difficulty breathing. Id. at 781. But Plaintiff said that he was willing to
23 endure swelling if the Tizandine 2 mg would “help with the pain as much as they
24 did the first time.” Id. Thus, the fact that Plaintiff stated that he was willing to
25 endure whole-body swelling in order to receive pain relief supports his assertion
26 that mere physical therapy and home stretching were not alleviating his pain
27 symptoms. Because the ALJ erred in rejecting Plaintiff’s subjective testimony, the
28 Court reverses and remands to the ALJ for further proceedings.
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 30

Case 2:20-cv-00367-SAB

1
2

ECF No. 17

filed 09/07/21

PageID.1239 Page 31 of 32

5. Did the ALJ err in his analysis at step five?
Plaintiff argues that the vocational testimony the ALJ relied on at step five

3 was lacking in evidentiary value. ECF No. 14 at 20. Specifically, Plaintiff states
4 that the testimony the ALJ relied on was provided in response to an incomplete
5 hypothetical. However, when the vocational expert was presented with
6 hypotheticals that reflected all of Plaintiff’s limitations, the expert concluded that
7 these limitations would preclude competitive employment. Id. at 20-21.
8

In response, Defendant argues that Plaintiff is merely repeating his claim

9 that the ALJ improperly weighed evidence—however, Defendant states that
10 Plaintiff fails to show any basis to remand because the medical record did not
11 support Plaintiff’s alleged limitations. ECF No. 15 at 20-21. Additionally,
12 Defendant states that Plaintiff cannot establish error just because “the ALJ did not
13 account for Plaintiff’s preferred limitations.” Id. at 20.
14

In reply, Plaintiff reiterates his argument that, when the vocational expert

15 was presented with Plaintiff’s improperly rejected limitations, the expert concluded
16 that these limitations would preclude employment. ECF No. 16 at 10-11.
17

Because the Court has already found sufficient grounds to reverse and

18 remand this matter to the ALJ, the Court finds it unnecessary to reach these
19 arguments.
20

Accordingly, IT IS HEREBY ORDERED:

21

1.

Plaintiff’s Motion for Summary Judgment, ECF No. 14, is

22 GRANTED.
23

2.

Defendant’s Motion for Summary Judgment, ECF No. 15, is

24 DENIED.
25

3.

The decision of the Commissioner is REVERSED and REMANDED

26 for further administrative proceedings consistent with this Order. On remand, the
27 ALJ shall reconsider (1) the opinions of Mr. Becker and Drs. Comrie and
28 Alexander; (2) symptoms stemming from Plaintiff’s impairments that the ALJ
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 31

Case 2:20-cv-00367-SAB

ECF No. 17

filed 09/07/21

PageID.1240 Page 32 of 32

1 deemed non-severe; (3) whether Plaintiff’s impairments met Listings 1.04A,
2 1.02B, and 11.02; and (4) Plaintiff’s testimony regarding the severity of his
3 limitations. This remand is made pursuant to sentence four of 42 U.S.C. § 405(g).
4

4.

The District Court Clerk is directed to enter judgment in favor of

5 Plaintiff and against Defendant.
6

5.

Plaintiff is permitted to request reasonable attorneys’ fees and costs

7 pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d).
8

IT IS SO ORDERED. The District Court Clerk is hereby directed to file

9 this Order, provide copies to counsel, and close the file.
10

DATED this 7th day of September 2021.

11
12
13
14
15
16

Stanley A. Bastian

Chief United States District Judge

17
18
19
20
21
22
23
24
25
26
27
28
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
JUDGMENT . . . # 32