1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 RAUL M., Case No.: 20-cv-2378-AGS 4 Plaintiff, ORDER ON SUMMARY-JUDGMENT MOTION (ECF 12) 5 v. 6 Kilolo KIJAKAZI, Acting Commissioner of Social Security, 7 Defendant. 8 9 The disability claimant here claims to suffer from a poorly understood condition: 10 Gulf War Illness. The Social Security judge ended the five-step disability analysis at 11 Step 2, concluding that claimant’s Gulf War Illness not only wasn’t “severe,” but that it 12 wasn’t even a medically determinable impairment. The issue is whether the judge was 13 correct or whether he halted the analysis too soon. 14 BACKGROUND 15 Plaintiff Raul M. is a veteran of the 1990–91 Gulf War. (ECF 12, at 1.) Since his 16 return from that conflict, Raul alleges he has “suffered from a constellation of symptoms” 17 that eventually “forced [him] to stop working.” (ECF 12, at 1.) He ultimately applied for 18 Social Security disability benefits, alleging a January 2016 onset. (AR 21.) 19 After a disability hearing, the Administrative Law Judge began the required five- 20 step sequential evaluation process for disability determinations. See 20 C.F.R. 21 §§ 404.1520(a), 416.920(a). The ALJ stopped at Step 2, after concluding that Raul “did not 22 have a severe impairment or combination of impairments.” (AR 24.) Specifically, the ALJ 23 determined that Raul’s “alleged cognitive deficits, chronic fatigue syndrome, and Gulf War 24 Illness” did not qualify as “medically determinable impairments” at all. (AR 23.) And 25 although the ALJ identified five other medically determinable impairments— 26 “hypertension, chronic kidney disease, borderline obesity, [c]eliac disease, and tinnitus”— 27 he ruled that none was “severe,” even when combined. (AR 23-24.) With no severe 28 impairments, the ALJ concluded that Raul was not disabled. (AR 28.) 1 STANDARD OF REVIEW 2 A court may set aside the Social Security Administration’s denial of benefits only 3 when “the ALJ’s findings are based on legal error or are not supported by substantial 4 evidence in the record” as a whole. See Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 5 2016); see also 42 U.S.C. § 405(g). “Substantial evidence is more than a mere scintilla, but 6 may be less than a preponderance.” Attmore, 827 F.3d at 875 (quotation marks omitted). 7 When the evidence is “susceptible to more than one rational interpretation,” a court must 8 defer to the ALJ. Id. Even when the ALJ errs, “we must affirm if the error is harmless.” 9 Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015). 10 DISCUSSION 11 On appeal, Raul argues that the ALJ erred in finding no severe medically 12 determinable impairments.1 13 A. Step 2: Severe Impairment 14 At Step 2, claimant bears the burden of showing a medically “severe impairment” 15 or “combination of impairments.” Barnhart v. Thomas, 540 U.S. 20, 24 (2003); see also 16 § 404.1520(a)(4)(ii). That burden is slight. Step 2 is a “de minimis screening device used 17 to dispose of groundless claims.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) 18 (alterations omitted). At this step, every impairment is “severe” unless the medical 19 evidence “clearly establishe[s]” a “slight abnormality that has no more than a minimal 20 effect on an individual’s ability to work.” Id. at 686–87. 21 1. Gulf War Illness 22 The ALJ found that Raul’s Gulf War Illness was not a medically determinable 23 impairment, without reaching the severity issue. (AR 23.) But two different doctors and a 24 25 26 1 Raul also complains about the ALJ’s treatment of his chronic-fatigue-syndrome 27 diagnosis, his treating medical professionals’ opinions, and his wife’s supporting statement. As the Court finds the Gulf War Illness issue determinative, it need not reach 28 1 physician’s assistant concluded that Raul suffered from Gulf War Illness, and Raul 2 participated in research studies that supported that diagnosis. (See AR 27, 308, 370, 410, 3 429, 440–42.) For example, one “bioenergetic marker” study demonstrated that a control 4 group required an average “post-exercise phosphocreatine recovery time” of “under 5 30.5 seconds,” versus recoveries exceeding “35 seconds” for “veterans meeting criteria for 6 Gulf War illness.” (AR 308.) By comparison, Raul’s result was “40 seconds, a notably 7 elevated value, indicative of bioenergetic impairment and consistent with the 8 mitochondrial compromise in Gulf War illness . . . .” (AR 308.) 9 The ALJ disregarded this study on the ground that it “had no scientific basis to 10 support the opinion,” ultimately deciding that “there was insufficient evidence to show that 11 this was a scientific study with reliable results.” (AR 24, 26.) But the ALJ provided no 12 reasoning to support his conclusion that it was unscientific. The study was organized by a 13 recognized academic institution, funded partly by the government, led by an M.D./Ph.D., 14 and published in a peer-reviewed journal. (See AR 431–32.) If the ALJ had doubts about 15 the validity of the study, he had “an affirmative duty to supplement [the] medical record 16 . . . before rejecting [the] petition at so early a stage in analysis.” See Webb, 43 F.3d at 687; 17 Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (“If the ALJ thought he needed to 18 know the basis of [the doctor’s] opinions in order to evaluate them, he had a duty to conduct 19 an appropriate inquiry, for example, by subpoenaing the physicians or submitting further 20 questions to them . . . [or otherwise] augment[ing] the record.” (citations omitted)). Thus, 21 the ALJ erred by concluding Raul did not establish a Gulf War Illness impairment. 22 2. Harmlessness 23 The question is whether that error was harmless. “An error is harmless only if it is 24 inconsequential to the ultimate nondisability determination.” Brown-Hunter v. Colvin, 25 806 F.3d 487, 494 (9th Cir. 2015) (citation and quotation marks omitted). The problem 26 here is that this error cascades through the ALJ’s severity analysis. 27 If the ALJ had accepted Raul’s testimony, he would have had to find him severely 28 impaired for Step 2 purposes, which would compel the ALJ to “move to the next step.” See 1 Edlund v. Massanari, 253 F.3d 1152, 1159–60 (9th Cir. 2001) (citations omitted), as 2 amended on reh’g (Aug. 9, 2001). Raul testified that he “couldn’t function anymore” at his 3 job due to “chronic fatigue that caused [him] to have mental confusion or brain fog, lack 4 of concentration, short-term memory loss, dizziness that last[ed] all day, muscle 5 weakness,” and stomach issues, including “irritable bowel syndrome” and “diarrhea.” 6 (AR 41–43.) This litany amounts to much “more than a minimal effect” on Raul’s ability 7 to work. See Webb, 433 F.3d at 686–87. And the ALJ was required to consider all such 8 “symptoms” in evaluating whether Raul had “severe physical or mental impairment(s).” 9 See 20 C.F.R. § 404.1529(d).
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1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 RAUL M., Case No.: 20-cv-2378-AGS 4 Plaintiff, ORDER ON SUMMARY-JUDGMENT MOTION (ECF 12) 5 v. 6 Kilolo KIJAKAZI, Acting Commissioner of Social Security, 7 Defendant. 8 9 The disability claimant here claims to suffer from a poorly understood condition: 10 Gulf War Illness. The Social Security judge ended the five-step disability analysis at 11 Step 2, concluding that claimant’s Gulf War Illness not only wasn’t “severe,” but that it 12 wasn’t even a medically determinable impairment. The issue is whether the judge was 13 correct or whether he halted the analysis too soon. 14 BACKGROUND 15 Plaintiff Raul M. is a veteran of the 1990–91 Gulf War. (ECF 12, at 1.) Since his 16 return from that conflict, Raul alleges he has “suffered from a constellation of symptoms” 17 that eventually “forced [him] to stop working.” (ECF 12, at 1.) He ultimately applied for 18 Social Security disability benefits, alleging a January 2016 onset. (AR 21.) 19 After a disability hearing, the Administrative Law Judge began the required five- 20 step sequential evaluation process for disability determinations. See 20 C.F.R. 21 §§ 404.1520(a), 416.920(a). The ALJ stopped at Step 2, after concluding that Raul “did not 22 have a severe impairment or combination of impairments.” (AR 24.) Specifically, the ALJ 23 determined that Raul’s “alleged cognitive deficits, chronic fatigue syndrome, and Gulf War 24 Illness” did not qualify as “medically determinable impairments” at all. (AR 23.) And 25 although the ALJ identified five other medically determinable impairments— 26 “hypertension, chronic kidney disease, borderline obesity, [c]eliac disease, and tinnitus”— 27 he ruled that none was “severe,” even when combined. (AR 23-24.) With no severe 28 impairments, the ALJ concluded that Raul was not disabled. (AR 28.) 1 STANDARD OF REVIEW 2 A court may set aside the Social Security Administration’s denial of benefits only 3 when “the ALJ’s findings are based on legal error or are not supported by substantial 4 evidence in the record” as a whole. See Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 5 2016); see also 42 U.S.C. § 405(g). “Substantial evidence is more than a mere scintilla, but 6 may be less than a preponderance.” Attmore, 827 F.3d at 875 (quotation marks omitted). 7 When the evidence is “susceptible to more than one rational interpretation,” a court must 8 defer to the ALJ. Id. Even when the ALJ errs, “we must affirm if the error is harmless.” 9 Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015). 10 DISCUSSION 11 On appeal, Raul argues that the ALJ erred in finding no severe medically 12 determinable impairments.1 13 A. Step 2: Severe Impairment 14 At Step 2, claimant bears the burden of showing a medically “severe impairment” 15 or “combination of impairments.” Barnhart v. Thomas, 540 U.S. 20, 24 (2003); see also 16 § 404.1520(a)(4)(ii). That burden is slight. Step 2 is a “de minimis screening device used 17 to dispose of groundless claims.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) 18 (alterations omitted). At this step, every impairment is “severe” unless the medical 19 evidence “clearly establishe[s]” a “slight abnormality that has no more than a minimal 20 effect on an individual’s ability to work.” Id. at 686–87. 21 1. Gulf War Illness 22 The ALJ found that Raul’s Gulf War Illness was not a medically determinable 23 impairment, without reaching the severity issue. (AR 23.) But two different doctors and a 24 25 26 1 Raul also complains about the ALJ’s treatment of his chronic-fatigue-syndrome 27 diagnosis, his treating medical professionals’ opinions, and his wife’s supporting statement. As the Court finds the Gulf War Illness issue determinative, it need not reach 28 1 physician’s assistant concluded that Raul suffered from Gulf War Illness, and Raul 2 participated in research studies that supported that diagnosis. (See AR 27, 308, 370, 410, 3 429, 440–42.) For example, one “bioenergetic marker” study demonstrated that a control 4 group required an average “post-exercise phosphocreatine recovery time” of “under 5 30.5 seconds,” versus recoveries exceeding “35 seconds” for “veterans meeting criteria for 6 Gulf War illness.” (AR 308.) By comparison, Raul’s result was “40 seconds, a notably 7 elevated value, indicative of bioenergetic impairment and consistent with the 8 mitochondrial compromise in Gulf War illness . . . .” (AR 308.) 9 The ALJ disregarded this study on the ground that it “had no scientific basis to 10 support the opinion,” ultimately deciding that “there was insufficient evidence to show that 11 this was a scientific study with reliable results.” (AR 24, 26.) But the ALJ provided no 12 reasoning to support his conclusion that it was unscientific. The study was organized by a 13 recognized academic institution, funded partly by the government, led by an M.D./Ph.D., 14 and published in a peer-reviewed journal. (See AR 431–32.) If the ALJ had doubts about 15 the validity of the study, he had “an affirmative duty to supplement [the] medical record 16 . . . before rejecting [the] petition at so early a stage in analysis.” See Webb, 43 F.3d at 687; 17 Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (“If the ALJ thought he needed to 18 know the basis of [the doctor’s] opinions in order to evaluate them, he had a duty to conduct 19 an appropriate inquiry, for example, by subpoenaing the physicians or submitting further 20 questions to them . . . [or otherwise] augment[ing] the record.” (citations omitted)). Thus, 21 the ALJ erred by concluding Raul did not establish a Gulf War Illness impairment. 22 2. Harmlessness 23 The question is whether that error was harmless. “An error is harmless only if it is 24 inconsequential to the ultimate nondisability determination.” Brown-Hunter v. Colvin, 25 806 F.3d 487, 494 (9th Cir. 2015) (citation and quotation marks omitted). The problem 26 here is that this error cascades through the ALJ’s severity analysis. 27 If the ALJ had accepted Raul’s testimony, he would have had to find him severely 28 impaired for Step 2 purposes, which would compel the ALJ to “move to the next step.” See 1 Edlund v. Massanari, 253 F.3d 1152, 1159–60 (9th Cir. 2001) (citations omitted), as 2 amended on reh’g (Aug. 9, 2001). Raul testified that he “couldn’t function anymore” at his 3 job due to “chronic fatigue that caused [him] to have mental confusion or brain fog, lack 4 of concentration, short-term memory loss, dizziness that last[ed] all day, muscle 5 weakness,” and stomach issues, including “irritable bowel syndrome” and “diarrhea.” 6 (AR 41–43.) This litany amounts to much “more than a minimal effect” on Raul’s ability 7 to work. See Webb, 433 F.3d at 686–87. And the ALJ was required to consider all such 8 “symptoms” in evaluating whether Raul had “severe physical or mental impairment(s).” 9 See 20 C.F.R. § 404.1529(d). Indeed, ALJs may only “reject the claimant’s testimony” 10 about symptom severity if they offer “specific, clear and convincing reasons” to do so— 11 “the most demanding [standard] required in Social Security cases.” Garrison v. Colvin, 12 759 F.3d 995, 1014–15 (9th Cir. 2014). 13 The ALJ gave two reasons for discounting Raul’s testimony: (1) the lack of 14 supporting objective medical evidence and (2) the lack of treatment for his conditions. The 15 ALJ focused almost exclusively on the first rationale, writing at length on how the objective 16 medical record conflicted with Raul’s testimony. (See AR 25–28.) But he was required to 17 “consider the record as a whole, weighing both evidence that supports and evidence that 18 detracts from the Commissioner’s conclusion.” Attmore v. Colvin, 827 F.3d 872, 875 19 (9th Cir. 2016) (alteration omitted). Raul’s Gulf War Illness diagnosis from two doctors 20 and a physician’s assistant—and the laboratory study confirming he suffered from the 21 disease—are objective medical evidence that support his testimony. (See AR 410, 429 22 (Physician Assistant Baldwin); AR 308 (Dr. Golomb and the study); AR 370, 440–42 23 (Dr. Diaz).) Because the ALJ erroneously gave this medical evidence no credence, he 24 failed to grapple with how closely Raul’s testimony aligned with the symptoms of Gulf 25 War Illness. See 38 U.S.C. § 1117(g) (defining Gulf War Illness to include otherwise 26 “undiagnosed” “symptoms” of “Fatigue,” “Muscle pain,” “Neurological signs and 27 symptoms,” “Neuropsychological signs or symptoms,” and “Gastrointestinal signs or 28 symptoms”); Gulf War Syndrome, Stedman’s Medical Dictionary § 880490 (listing 1 symptoms of “fatigue, musculoskeletal pain, headaches, dyspnea, memory loss, and 2 diarrhea”); (AR 429 (Raul’s treating physician assistant explaining that the 2018 studies 3 “strongly suggested” that Raul’s “Gulf War illness is due to mitochondrial damage” and 4 noting that this “leads to multiple symptoms spanning from fatigue, cognitive and other 5 brain related challenges, muscle problems and exercise intolerance”)). The ALJ was not 6 permitted to ignore the objective testing that supported Raul’s testimony simply by 7 deeming it unscientific, without further elaboration. See Attmore, 827 F.3d at 875 (holding 8 that the ALJ “must consider the record as a whole”). 9 The ALJ’s only other justification for doubting Raul’s testimony was Raul’s “lack 10 of treatment other than vitamins.” (AR 26.) While the ALJ “is permitted to consider lack 11 of treatment in his credibility determination,” Burch v. Barnhart, 400 F.3d 676, 681 12 (9th Cir. 2005), this circumstance cannot be held against Raul “without considering 13 possible reasons [claimant] may not . . . seek treatment consistent with the degree of his or 14 her complaints.” See SSR 16-3P, 2017 WL 5180304, at *9 (Oct. 25, 2017). The record 15 raises some ambiguity about why Raul did not obtain more treatment. For example, Raul 16 was referred for a rheumatological consult, but was rejected for unknown reasons. (AR 396 17 (“rheumatology will not take the [patient]”).) Similarly, the record suggests Raul canceled 18 an EGD test “because he was scared of doing it.” (AR 456); see Ma v. Berryhill, No. 17- 19 CV-05696-RS, 2019 WL 1090389, at *5 (N.D. Cal. Mar. 8, 2019) (reversing an ALJ’s 20 reliance on lack of treatment when claimant “refus[ed] to take an epidural shot” because 21 he was “scared” and believed it was “invasive”). “[W]hen there is ambiguous evidence or 22 when the record is inadequate to allow for proper evaluation of the evidence,” the ALJ has 23 a “duty to develop the record further.” Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 24 2001). The ALJ had such a duty here and could not hold any lack of treatment against Raul 25 without resolving these concerns. 26 At any rate, neither rationale meets the high bar of specific, clear, and convincing 27 reasons to disregard Raul’s testimony. The Court cannot conclude that the failure to grapple 28 with Raul’s Gulf War Illness—some of the only objective evidence in the record to support 1 ||his testimony—was harmless. Thus, the ALJ’s decision must be reversed. See also 2 85-28, 1985 WL 56856, at *4 (Jan. 1, 1985) (“If an adjudicator is unable to determine 3 ||clearly the effect of an impairment or combination of impairments on the individual’s 4 ability to do basic work activities, the sequential evaluation process should not end with 5 || the not severe evaluation step.”). 6 ||B. Remand Type 7 A court may remand for an immediate award of benefits when, among other things, 8 ALJ would be required to find the claimant disabled on remand,” “further 9 || administrative proceedings would serve no useful purpose,” Garrison v. Colvin, 759 F.3d 10 1020 (9th Cir. 2014), and the record as a whole leaves “not the slightest uncertainty 11 || as to the outcome of [the] proceeding.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 12 |}1090, 1101 (9th Cir. 2014). While the Court reverses the ALJ’s decision, it shares his 13 ||}concern about the sparse medical evidence supporting Raul’s disability claim. 14 || Additionally, the ALJ on remand may wish to consult with a consultative examiner 15 ||concerning the impact of Raul’s Gulf War Illness. In either event, the Court is left with 16 ||more than the “slightest uncertainty” as to whether Raul is disabled, and thus a remand for 17 || additional proceedings is appropriate. 18 CONCLUSION 19 Raul M.’s summary-judgment motion (ECF 12) is granted. The case is remanded for 20 || further proceedings consistent with this opinion. The Clerk is directed to issue a judgment 21 close this case. 22 REVERSED and REMANDED. 23 Dated: September 8, 2022 24 A-—_ 25 Hon. ndrew G. Schopler United States Magistrate Judge 26 27 28