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6 UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA 7 Patricia D. Dykstra, 8 Plaintiff CV-25-8113-PCT-SHD (JFM) -vs- 9 Commissioner of Social Security Administration, Report & Recommendation 10 Defendant.
11 Plaintiff seeks review under 42 U.S.C. § 405(g) of the final decision of the 12 Commissioner of Social Security who denied her supplemental security income benefits 13 under the Social Security Act. 14 This matter is now ripe for consideration. Accordingly, the undersigned makes the 15 following proposed findings of fact, report, and recommendation pursuant to Rule 72(b), 16 Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(10), Local Rules 17 of Civil Procedure. 1 18
19 A. SUMMARY OF THE CASE 20 Plaintiff, born in 1985, has asserted that she became disabled as of June 16, 2010,2 21 when she was 24 years old, based on a variety of physical and mental impairments. (See 22 AR 25 (detailing claims), 31 (dates).) She has past relevant work as a plastic molding 23 machine setter. (AR 30.) 24
25 1 The Administrative Record (Doc. 16, 14) is referenced herein as “AR”, and the labelled Exhibits including in the Administrative Record are referenced herein as “Ex. ___.” The 26 original filing of Parts 1 through 13 of 26 of the AR (Doc. 13) were rejected by the Clerk as deficient, and was refiled at Doc. 16.) The briefs are referenced herein as OBr. (Opening 27 Brief, Doc. 17), . (Answering Brief, Doc. 25), and RBr. (Reply Brief, Doc. 26). 1 In a decision issued April 30, 2024, the ALJ found Plaintiff generally eligible for 2 benefits given her non-employment. (AR 20.) The ALJ found Plaintiff had the following 3 severe impairments: migraine headaches, a seizure disorder, right carpal tunnel 4 syndrome, vertigo, asthma, fibromyalgia, degenerative disc disease, bilateral acute chronic 5 cervical and lumbar radiculopathy, and an anxiety disorder. (Id.) The ALJ also found the 6 following non-severe impairments: kidney stones. (Id. at 20-21.) The ALJ found no 7 combination of impairments that established disability under the listings. (Id. at 21-22.) 8 The ALJ further found Plaintiff did not meet the “Paragraph B” criteria for 9 mental impairment, finding a moderate limitation in understanding, remembering or 10 applying information, and no limitations in the other 3 criteria. (Id. at 22-24.) 11 The ALJ found Plaintiff had the residual functional capacity:
12 to perform medium work as defined in 20 CFR 416.967(c) except she can lift and/or carry 50 pounds occasionally and 25 pounds 13 frequently. The claimant can stand and/or walk a total of 4 hours in an 8 hour workday. She can sit for a total of 6 hours in an 8 hour 14 workday. The claimant can push and/or pull without limit other than as shown for lift and/or carry. She must avoid concentrated exposure 15 to extreme cold, extreme heat, and fumes, odors, dusts, gases, poor ventilation, etc. The claimant cannot work in a loud work 16 environment, Selected Characteristics of Occupations noise intensity level 4 or greater. She can never climb ladders/ropes/scaffolds and 17 can occasionally climb ramps/stairs, balance, stoop, kneel, crouch, and crawl. The claimant can frequently handle and finger bilaterally. 18 She is limited to simple, repetitive tasks. 19 (AR 24 (emphasis added).) 20 Or particular import here, in reaching that conclusion the ALJ: evaluated records 21 of migraines, seizures, and related treatments (AR 26, ¶ 4, 27 ¶ 2); noting minimal 22 objective findings (id.), and a diagnosis of psychogenic non-epileptic but also findings of 23 objective abnormalities tending to show epileptic causes and restrictions based on the 24 mental impairments (AR 29, ¶ 2.) The latter, however, was discounted as excessive and 25 unsupported. (Id.) Plaintiff’s subjective complaints were generally discounted (beyond 26 the determined RFC) as unsupported by objective medical evidence, and inconsistent with 27 treatment notes (AR 30 at ¶ 4). 1 could perform work in the sufficiently available jobs in light, SVP 2 occupations such as 2 Marker (DOT #209.587-034) and sedentary, SVP 2 or 3 occupations such as Telephone 3 Solicitor (DOT #299.357-014). (AR 31.) Thus, Plaintiff was found to not be disabled. 4 Plaintiff argues the ALJ erred by failing to adequately explain how he considered 5 the severe impairments of migraine headaches and a seizure disorder: (a) at Step Three 6 (listings) (OBr. at 8-12; and (b) at Step Four by failing to incorporate responsive 7 limitations in the residual function capacity. (OBr. at 12-17.) 8 Plaintiff seeks a reversal and remand for award of benefits. (OBr. at 17.) 9 B. STANDARDS OF REVIEW 10 Reviewed Decision - in this case, because the Appeals Council denied review, the 11 ALJ’s decision is the final decision of the agency, and the decision now under review. 20 12 C.F.R. § 404.981. 13 Bases for Reversal - The court may set aside the agency’s disability determination 14 only if the determination is not supported by substantial evidence or is based on legal error. 15 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 16
The phrase “substantial evidence” is a “term of art” used throughout 17 administrative law to describe how courts are to review agency factfinding. Under the substantial-evidence standard, a court looks to 18 an existing administrative record and asks whether it contains sufficient evidence to support the agency's factual determinations. 19 And whatever the meaning of “substantial” in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial 20 evidence, this Court has said, is more than a mere scintilla. It means—and means only—such relevant evidence as a reasonable 21 mind might accept as adequate to support a conclusion. 22 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quotations, alterations, and citations 23 omitted). 24 Limited to ALJ’s Reasoning - In reviewing the ALJ’s decision, neither the parties 25 nor the Court can manufacture their own reasons to support the decision made by the ALJ. 26 “We review only the reasons provided by the ALJ in the disability determination and may 27 not affirm the ALJ on a ground upon which he did not rely.” Garrison v. Colvin, 759 F.3d 1 grounds upon which an administrative order must be judged are those upon which the 2 record discloses that its action was based.”); Connett v. Barnhart, 340 F.3d 871, 874 (9th 3 Cir. 2003) (“We are constrained to review the reasons the ALJ asserts. It was error for the 4 district court to affirm the ALJ's credibility decision based on evidence that the ALJ did 5 not discuss.”). 6 But in identifying the ALJ’s reasons, the Court is not constrained solely by the 7 ALJ’s organization of his opinion, and can make reasonable inferences reading the 8 decision as a whole. Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989). 9 Not Limited to ALJ’s Record Citations – The ALJ is mandated not to provide 10 record citations but to provide reasons. So long as the purported “facts” underlying those 11 reasons find support in the record (and the reasons are legally sufficient), the ALJ’s 12 decision must be sustained. “Thus, it is clear that both this court and the district court may 13 look to any evidence in the record regardless of whether it has been cited by the Appeals 14 Council.” Walker v. Sec'y of Health & Hum. Servs., 884 F.2d 241, 245 (6th Cir. 1989). 15 See also 4 Soc. Sec. Law & Prac. § 55:67 (2022). Indeed, the reviewing court may reverse 16 “only if the ALJ's decision was not supported by substantial evidence in the record as a 17 whole.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (emphasis added). 18 On the other hand, “[t]hough the ALJ need not address every piece of evidence, he 19 must articulate, at some minimum level, his analysis of the record so that the reviewing 20 court can follow his reasoning.” Johansen v. Barnhart, 314 F.3d 283, 287 (7th Cir. 2002). 21 “If the reviewing court has no way of evaluating the basis for the ALJ's decision, then ‘the 22 proper course, except in rare circumstances, is to remand to the agency for additional 23 investigation or explanation.’” Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013) 24 (quoting Florida Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)). See also 25 Connett, 340 F.3d at 874. Thus, a decision supported only by a bare reference to “the 26 record” would justify remand, even if some portion of the record might support the 27 decision, if the decision did not otherwise make clear the ALJ’s reasons. 1 an impairment could cause the reported symptoms, the ALJ can reject a claimant’s 2 symptoms testimony only by providing specific, clear, and convincing reasons for doing 3 so. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). Relevant evidence includes 4 such things as “(1) whether the claimant engages in daily activities inconsistent with the 5 alleged symptoms; (2) whether the claimant takes medication or undergoes other treatment 6 for the symptoms; (3) whether the claimant fails to follow, without adequate explanation, 7 a prescribed course of treatment; and (4) whether the alleged symptoms are consistent with 8 the medical evidence.” Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007). 9 Harmless Error - “A decision of the ALJ will not be reversed for errors that are 10 harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). An error is harmless if 11 there remains substantial evidence supporting the ALJ’s decision and the error does not 12 affect the ultimate nondisability determination. Molina, 674 F.3d at 1115. An error is 13 harmless if it either “occurred during a procedure or step the ALJ was not required to 14 perform,” or if it “was inconsequential to the ultimate nondisability determination.” Stout 15 v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). Harmlessness does not 16 require the court to determine what ultimate decisions the ALJ would have made if the 17 error had not been committed, but only to ask whether the remaining bases for the decision 18 are sufficient to support the decision. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 19 1155, 1162 (9th Cir. 2008). 20 C. APPLICATION OF LAW 21 1. Arguments 22 Plaintiff argues the ALJ erred finding Listing 11.02 (epilepsy/primary headache 23 disorder) unmet because the ALJ failed to explain why it was not met or equaled by the 24 Listing, only summarily asserting it was not. Plaintiff further argues that the ALJ relied 25 on normal MRI findings, when migraines do not reflect on such testing, and such findings 26 are consistent with a primary headache disorder diagnosis. (OBr. at 9-14.) Plaintiff further 27 argues that the ALJ erred because he failed to account for the migraines or seizures in the 1 RFC, and conclusory assertions they had been accounted for were insufficient. (Id. at 14- 2 17.) 3 Defendant argues the ALJ properly relied upon: (a) successful treatment (f. at 2- 4 3)3; (b) limited and conservative treatment (id. at 3-4); (c) persuasive psychological 5 opinions of functional capacity (id. at 3-4); and (d) inconsistency with the objective 6 medical evidence, including limited findings on brain imaging and treatment notes 7 reflecting good memory (id. at 4-5). Defendant further argues the ALJ’s decision was 8 sufficiently specific to show it was not arbitrary (id. at 5). Finally, Defendant argues 9 Plaintiff fails to show she met Listing 11.02 because: (1) she declined treatment; (2) the 10 ALJ reasonably discounted her symptoms testimony; (3) any deficiencies in the ALJ’s 11 analysis would call for rehearing, not an award (id. at 5-6). 12 Plaintiff replies that Defendant is relying on post hoc rationales not asserted by the 13 ALJ (RBr. at 1, 3), and that Defendant is unable to correlate any specific RFC limitations 14 with Plaintiff’s migraines and seizures (id.. at 1-2). Plaintiff asserts that purported 15 “improvement” from treatment still left her with disabling migraines (id. at 2), and no 16 explanation linking purported conservative treatment to the RFC was given by the ALJ 17 (id. at 2-3). Plaintiff argues Defendant misstates the record on declining treatment, and 18 there were efficacy, treatment, and financial reasons for declining treatment. (Id. at 3-4.) 19 Plaintiff argues Defendant fails to address: (a) the assertions that imaging is an inadequate 20 diagnostic tool for migraines (id. at 5); and (b) Plaintiff’s analysis of the applicability of 21 Listing 11.02B (id. at 6.) 22 2. ALJ’s Decision 23 The ALJ found regarding Plaintiff’s migraines and seizure disorder no applicable 24 listing, and the listing for Epilepsy (Listing 11.02) was “the most closely analogous listed 25 impairment,” but found no evidence to show Plaintiff’s condition “medically equals a 26
27 3 The first page of the Answering Brief is unnumbered, resulting in a disparity between 1 listing, either individually or in combination with another impairment.” (AR 22.) The 2 ALJ reviewed the applicable standards:
3 There are no listing criteria for headaches. However, the undersigned may find that a primary headache disorder, alone or in combination 4 with another impairment(s), medically equals a listing. Epilepsy (listing 11.02) is the most closely analogous listed impairment for a 5 medically determinable impairment (MDI) of a primary headache disorder. While uncommon, a person with a primary headache 6 disorder may exhibit equivalent signs and limitations to those detailed in listing 11.02 (paragraph B or D for dyscognitive seizures) and may 7 result in her MDI(s) medically equaling the listing. To evaluate whether a primary headache disorder is equal in severity and duration 8 to the criteria in 11.02B, the following must be considered: a detailed description from an acceptable medical source of a typical headache 9 event, including all associated phenomena (for example, premonitory symptoms, aura, duration, intensity, and accompanying symptoms); 10 the frequency of headache events; adherence to prescribed treatment; side effects of treatment (for example, many medications used for 11 treating a primary headache disorder can produce drowsiness, confusion, or inattention); and limitations in functioning that may be 12 associated with the primary headache disorder or effects of its treatment, such as interference with activity during the day (for 13 example, the need for a darkened and quiet room, having to lie down without moving, a sleep disturbance that affects daytime activities, or 14 other related needs and limitations). To evaluate whether a primary headache disorder is equal in severity and duration to the criteria in 15 11.02D, the undersigned considers the same factors considered for 11.02B. In addition, the undersigned considers whether the overall 16 effects of the primary headache disorder on functioning results in marked limitation in physical functioning; understanding, 17 remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; or adapting or 18 managing oneself (SSR 19-4p). 19 (AR 22.) But the ALJ then made a conclusory determination:
20 Nevertheless, there is no evidence that the claimant’s primary headache disorder medically equals a listing, either individually or in 21 combination with another impairment. 22 (Id.) In reaching that conclusion, the ALJ cited no facts or evidence, and pointed to no 23 specific deficiency in proof. And there was no preceding evaluation in the ALJ’s decision 24 of Plaintiff’s migraines and seizures. Nor was there any succeeding evaluation by the ALJ 25 of the requirements of Listing 11.02. 26 The ALJ then adopted an RFC (AR 24), and set about offering explanations for it 27 (AR 24-30). Those explanations addressed Plaintiff’s migraines and seizures in four 1 First, the ALJ listed Plaintiff’s migraine headaches and seizure disorder in a laundry 2 list of all her impairments, and asserted a conclusion that “the claimant’s treatment-seeking 3 history, diagnostic test results, clinical signs, reported symptoms, medications and other 4 prescribed treatment demonstrate that the claimant’s statements about the intensity, 5 persistence, and limiting effects of the alleged symptoms, are inconsistent.” (AR 25.) 6 Second, the ALJ noted Plaintiff sought treatment for migraines in July, 2021 from 7 Dr. Kaldawi. The ALJ then referenced minimal brain MRI findings and then veered into 8 a discussion of carpal tunnel and pulmonary issues and various “unremarkable” neurologic 9 examination results with no apparent connection to migraines or seizure disorders:
10 normal bulk and tone, intact finger-nose-finger testing, normal posture and stance, intact tandem gait, and an ability to walk on her 11 heels and toes. 12 (AR 25.) Nonetheless, the ALJ observed that her diagnoses included, inter alia, “migraine 13 without aura…neuropathy, a somatization disorder, and spells of decreased attentiveness.” 14 (Id.) 15 Third, the ALJ noted that Plaintiff “reported having nonepileptic spells and chronic 16 migraines on November 13, 2021, when her headaches were improved with Ajovy, with 17 three to four reported migraines per week.” (AR 26.) The ALJ then branched off into a 18 discussion of a series of apparently unconnected findings:
19 normal neck range of motion, normal muscle bulk, no edema, clear lungs to auscultation, an ability to answer simple questions and 20 follow simple commands, normal bulk and tone, symmetric and full motor strength, intact sensation, and a normal and steady gait …good 21 strength, intact sensation, and a normal gait and station.” 22 (Id.) 23 Fourth, the ALJ noted that Plaintiff continued reporting migraines and nonepileptic 24 seizures in December 2023, but again branched off into a discussion of apparently 25 unconnected findings:
26 comfortable with a calm and cooperative demeanor, appropriate interaction, normal psychomotor activity, slightly pressured speech, 27 full orientation, an ability to answer questions and follow commands 1 sweenaskantieosns,, nonromrmala ml obtoilra tbeurlakl anudp pteorn e,e oxntrleym mityil d slotrwenegr tehx, tresmomitye 2 hypoactive reflexes, intact coordination, only mild difficulty standing, and a casual wide-based gait with the use of canes, 3 (AR 27.) 4
5 3. Listing 11.02 at Least Arguably Met 6 a. Application of Listings 7 The ALJ follows a five-step sequential evaluation process in assessing whether a 8 claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Lester v. Chater, 81 9 F.3d 821, 828 n. 5 (9th Cir. 1996). 10 If the claimant has a “severe” impairment or combination of impairments, the third 11 step requires the Commissioner to determine whether the impairment or combination of 12 impairments meets or equals an impairment in the Listing set forth at 20 C.F.R., Part 404, 13 Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are 14 awarded. Id. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
15 At step three, the ALJ evaluates whether the claimant has an impairment, or combination of impairments, that meets or equals the 16 criteria of any of the impairments listed in the “Listing of Impairments” (referred to as the “listings”). See § 404.1520(a)(4)(iii); 17 20 C.F.R. Pt. 404 Subpt. P, App. 1 (pt. A). The listings describe impairments that are considered “to be severe enough to prevent an 18 individual from doing any gainful activity.” § 404.1525(a). Each impairment is described in terms of “the objective medical and other 19 findings needed to satisfy the criteria of that listing.” § 404.1525(c)(3). “For a claimant to show that his impairment matches 20 a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how 21 severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 [ ] (1990) (footnote omitted). If an impairment does not meet a listing, it 22 may nevertheless be “medically equivalent to a listed impairment” if the claimant's “symptoms, signs, and laboratory findings are at least 23 equal in severity to” those of a listed impairment. § 404.1529(d)(3). But a claimant cannot base a claim of equivalence on symptoms 24 alone. Even if the claimant alleges pain or other symptoms that makes the impairment more severe, the claimant's impairment does not 25 medically equal a listed impairment unless the claimant has signs and laboratory findings that are equal in severity to those set forth in a 26 listing. § 404.1529(d)(3). If a claimant's impairments meet or equal the criteria of a listing, the claimant is considered disabled. § 27 404.1520(d). 1 The claimant has the burden of proving that his impairments meet or equal a listed 2 impairment. See Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir.2005). “For a claimant to 3 show that his impairment matches a listing, it must meet all of the specified medical 4 criteria. An impairment that manifests only some of those criteria, no matter how severely, 5 does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990). However, in determining 6 whether a claimant equals a listing under step three…the ALJ must explain adequately his 7 evaluation.” Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). 8 b. Applicable Listings 9 The parties are in agreement that Listing 11.02 (Epilepsy) is the relevant listing, 10 and in particular 11.02(B) (“Dyscognitive seizures (see 11.00H1b), occurring at least once 11 a week for at least 3 consecutive months (see 11.00H4) despite adherence to prescribed 12 treatment (see 11.00C),” and 11.02(D) which governs:
13 Dyscognitive seizures (see 11.00H1b), occurring at least once every 2 weeks for at least 3 consecutive months (see 11.00H4) despite 14 adherence to prescribed treatment (see 11.00C); and a marked limitation in one of the following: 1. Physical functioning (see 15 11.00G3a); or 2. Understanding, remembering, or applying information (see 11.00G3b(i)); or 3. Interacting with others (see 16 11.00G3b(ii)); or 4. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or 5. Adapting or managing oneself (see 17 11.00G3b(iv)). 18 20 C.F.R. § Pt. 404, Subpt. P, App. 1, 11.02. 19 That Social Security Ruling addressing migraines provides:
20 Primary headache disorder is not a listed impairment in the Listing of Impairments (listings);[24] however, we may find that a primary 21 headache disorder, alone or in combination with another impairment(s), medically equals a listing.[25] 22 Epilepsy (listing 11.02) is the most closely analogous listed 23 impairment for an MDI of a primary headache disorder. While uncommon, a person with a primary headache disorder may exhibit 24 equivalent signs and limitations to those detailed in listing 11.02 (paragraph B or D for dyscognitive seizures), and we may find that 25 his or her MDI(s) medically equals the listing.
26 Paragraph B of listing 11.02 requires dyscognitive seizures occurring at least once a week for at least 3 consecutive months despite 27 adherence to prescribed treatment. To evaluate whether a primary 1 psyremmpotonmitosr);y styhme ptforemqsu,e anucrya , douf rahtieoand, aicnhteen seitvye, natns;d aacdchoemrepnacney intog 2 prescribed treatment; side effects of treatment (for example, many medications used for treating a primary headache disorder can 3 produce drowsiness, confusion, or inattention); and limitations in functioning that may be associated with the primary headache 4 disorder or effects of its treatment, such as interference with activity during the day (for example, the need for a darkened and quiet room, 5 having to lie down without moving, a sleep disturbance that affects daytime activities, or other related needs and limitations). 6 Paragraph D of listing 11.02 requires dyscognitive seizures occurring 7 at least once every 2 weeks for at least 3 consecutive months despite adherence to prescribed treatment, and marked limitation in one area 8 of functioning. To evaluate whether a primary headache disorder is equal in severity and duration to the criteria in 11.02D, we consider 9 the same factors we consider for 11.02B and we also consider whether the overall effects of the primary headache disorder on 10 functioning results in marked limitation in: physical functioning; understanding, remembering, or applying information; interacting 11 with others; concentrating, persisting, or maintaining pace; or adapting or managing oneself. 12 SSR 19-4P at ¶ 8 (emphasis added). 13 c. ALJ’s Reasoning 14 The ALJ offered no reason why 11.02 did not apply. He simply concluded it did 15 not. (AR 22.) While subsequently in the decision the ALJ addressed Plaintiff’s migraines 16 and seizures, nowhere in those discussions did he offer a reason why they did not meet the 17 listings. (See AR 22-27.) “We review only the reasons provided by the ALJ in the 18 disability determination and may not affirm the ALJ on a ground upon which he did not 19 rely.” Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). 20 To be sure, Defendant points to various facts referenced in the opinion about 21 Plaintiff’s migraines and seizures. In identifying the ALJ’s reasons, the Court is not 22 constrained solely by the ALJ’s organization of his opinion, and can make reasonable 23 inferences reading the decision as a whole. Magallanes v. Bowen, 881 F.2d 747, 755 (9th 24 Cir. 1989). But Defendant points to no part of the decision to support a reasonable 25 inference that the facts discussed in those sections were the reason for the ALJ’s decision 26 on the Listings. The undersigned has found none. 27 1 Defendant argues the ALJ’s decision was sufficiently specific to show it was not 2 arbitrary (id. at 5). To the extent that Defendant intends to argue that the relevant standard 3 is whether the court is satisfied that the ALJ did not act arbitrarily, Defendant confuses the 4 standard with its purpose. The references to arbitrary action have their roots in the Ninth 5 Circuit in an observation in Elam v. R.R. Ret. Bd., 921 F.2d 1210, 1215 (11th Cir. 1991) 6 that “the standard does not permit a factfinder to arbitrarily discredit a claimant's testimony 7 regarding pain.” See Bunnell, 947 F.2d at 345 (quoting Elam). As recognized in Bunnell, 8 the symptoms testimony standard is that “the adjudicator must specifically make findings 9 which support” the conclusion that the testimony is not credible. Id. And as clarified in 10 Trevizo and its predecessors, those findings must establish “specific, clear and convincing” 11 reasons. 871 F.3d at 678. 12 Here, the ALJ provided no specific, clear and convincing reasons to discredit 13 Plaintiff’s statements on the frequency and effects of her migraine headaches. At best he 14 offered a generic, conclusory statement that “the claimant’s treatment-seeking history, 15 diagnostic test results, clinical signs, reported symptoms, medications and other prescribed 16 treatment demonstrate that the claimant’s statements about the intensity, persistence, and 17 limiting effects of the alleged symptoms, are inconsistent.” (AR 25.) “[E]ven if the ALJ 18 had given facially legitimate reasons for his partial adverse credibility finding, the 19 complete lack of meaningful explanation gives this court nothing with which to assess its 20 legitimacy.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 884 (9th Cir. 2006). 21 (2). Successful Treatment 22 Moreover, the “facts” asserted by Defendant fail to show the Listing did not apply. 23 The Commissioner points to discussions of successful treatment. (f. at 2-3 (citing AR 25- 24 31). But the ALJ’s only discussion of successful treatment was in reference to the 25 November 13, 2021 visit, when he observed Plaintiff’s headaches were reported 26 “improved with Ajovy, with three to four reported migraines per week.” (AR 26.) 27 Improvement itself is insufficient unless the improvement reduces the condition below a 1 disabling one. Cf. Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2 2006) (addressing RFC determination). See 20 C.F.R. § 416.994a (“we will disregard 3 [improvement that] could not result in a finding that your disability has ended”). Listing 4 11.02B (the most stringent portion), only requires relevant events “at least once a week.” 5 Plaintiff continued with migraines more frequently, making the achieved improvement 6 irrelevant. 7 (3). Limited or Conservative Treatment 8 Defendant asserts that limited and conservative treatment justified the ALJ’s 9 decision. (f. at 3-4 (citing TR 25-27, 958).) Indeed, one form of “evidence [on which an 10 ALJ can rely to find a pain allegation incredible] is an unexplained, or inadequately 11 explained, failure to seek treatment or follow a prescribed course of treatment. While there 12 are any number of good reasons for not doing so, a claimant's failure to assert one, or a 13 finding by the ALJ that the proffered reason is not believable, can cast doubt on the 14 sincerity of the claimant's pain testimony.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 15 1989). 16 At AR 25 the ALJ made a broad assertion with regard to all of Plaintiff’s 17 impairments (“from migraine headaches, a seizure disorder, right carpal tunnel syndrome, 18 vertigo, asthma, fibromyalgia, degenerative disc disease, bilateral acute chronic cervical 19 and lumbar radiculopathy, and an anxiety disorder’) that her (inter alia) “treatment- 20 seeking history…demonstrate that the claimant’s statements about the intensity, 21 persistence, and limiting effects of the alleged symptoms are inconsistent.” But the ALJ 22 offered no explanation or reference to tie limited and conservative treatment relevant to 23 the determination on the migraines and seizures. Nor did the ALJ reference in other 24 portions of his decision any limited or conservative treatment on such conditions. Thus, 25 there is no inference to be made that limited and conservative treatment was the reason for 26 the ALJ’s determination on the Listings regarding Plaintiff’s migraines and seizures. 27 At AR 27 the ALJ asserted “the claimant’s physical residual functional capacity is 1 that assertion was included in a discussion of a single physical examination by a consulting 2 examiner on December 27, 2023 when Plaintiff “would not continue her examination due 3 to reported pain after lifting coins off a table without difficulty.” (AR 27 (citing Exh. 4 B30F).) (See AR 1475 (Exh. B30F at 3).) But Defendant offers no explanation how this 5 discussion related to Plaintiff’s migraine and seizure complaints, nor how it relates to 6 limited or conservative treatment when the exam was explicitly solely for non-treatment 7 purposes. (See AR 1473 (Ex. B30F at 1) (“Claimant was advised prior to exam that this 8 is not a complete physical but is an administrative exam and a physician patient 9 relationship has not been established”). And Defendant offers no explanation how this 10 finding was relevant to any of Defendant’s impairments, none of which appear to be 11 founded upon physical deficiencies sufficient to preclude lifting coins, as opposed to 12 associated pain. 13 Defendant also fails to identify any limited or conservative treatment. Instead, 14 Defendant references a record from November 2021 showing that Plaintiff had stopped a 15 treatment that was not working, in favor of continuing with the Ajovy medication that was 16 working. (f. at 3 (citing AR 956).) Defendant fails to explain how stopping an ineffective 17 treatment in favor of an effective one is substantial evidence to reject symptoms testimony. 18 Nor did the ALJ discuss this evidence. Nor did the ALJ engage in any discussion of 19 Plaintiff failing to pursue further treatment with respect to her migraines and seizures. This 20 is so even though the ALJ specifically discussed the note relied on by Defendant. (AR 26 21 (citing Exh. B13F at 4, i.e., AR 956).) 22 Defendant points to later portions of the same record showing:
23 Discussed Botox injections, however patient declined….Recommend discussed referral to tertiary care center for evaluation at Barrows 24 neurological institute with a headache specialist, however her insurance declined the transport. Subsequently discussed referral for 25 second opinion. Patient would like to think about that and see if she would like to follow-up in Bullhead instead. At this time holding off 26 on referral. 27 (AR 958 (referencing 11/13/21 exam by Dr. Ohn).) Again, despite referencing this same 1 Plaintiff had declined Botox “due to history of questionable MS.” (AR 690.) (RBr. 2 at 4.) Defendant offers nothing to suggest this explanation was rejected by the ALJ, or 3 that it was not a reasonable, credible explanation. 4 Plaintiff declining a referral for care she could not pursue because of financial and 5 logistical reasons (due to insurance refusing to pay for transport) would not have been a 6 valid basis to reject symptoms testimony, had the ALJ intended to do so. “Disability 7 benefits may not be denied because of the claimant's failure to obtain treatment he cannot 8 obtain for lack of funds.” Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995). “Medicine 9 or treatment an indigent person cannot afford is no more a cure for his condition than if it 10 had never been discovered.” Lovelace v. Bowen, 813 F.2d 55, 59 (5th Cir.1987). Indeed, 11 the record reflects Plaintiff had pursued other treatment options that were rejected by 12 insurance. (See, e.g., AR 690 (“She wanted to start Aimovig. However was not approved 13 by insurance.”).) 14 Plaintiff did not simply decline treatment, but continued with persistent treatment. 15 (See AR 665 (Ajovy maintained 3/6/21), AR 764 (Ajovy filled 5/5/21), AR 658 (Ajovy 16 maintained 5/20/21) AR 611, 757 (Ajovy filled 6/1/21), AR 651 (Ajovy maintained 17 6/10/21), AR 752 (Ajovy filled 6/27/21), AR 747 (Ajovy filled 8/4/21), AR 958, 969 18 Ajovy continued 11/13/21), AR 1031 (Ajovy confirmed 1/10/22), AR 1005 (Ajovy filled 19 1/23/22), AR 998 (Ajovy filled 3/20/22), AR 1052 (Ajovy confirmed 4/12/22), AR 1063 20 (Ajovy confirmed 4/26/22), AR 986 (Ajovy filled 6/22/22), AR 1028 (Ajovy affirmed 21 9/4/22), AR 1068, 1131(Ajovy entered 9/7/22), AR 1017 (Ajovy affirmed 9/19/22), AR 22 1068 Ajovy confirmed 9/28/22), AR 1280 (Ajovy filled 12/10/22), AR 1268, 1274 (Ajovy 23 refilled 1/7/23), AR 1119 (Ajovy filled 2/27/23), AR 1256 (Ajovy filled 4/21/23), AR 24 1262 (Ajovy filled 4/27/23), AR 1113, 1243 (Ajovy filled 5/18/23), AR 1345 (Ajovy 25 confirmed 6/19/23), AR 1237 (Ajovy filled 8/27/23), AR 1361 (Ajovy confirmed 9/5/23), 26 AR 1480, 1483 (Ajovy filled 11/22/23), AR 1490, 1499, 1508 (Ajovy confirmed 27 12/29/23).) Moreover, it was noted she had tried other medications and had adverse 1 response to others, including Floricet and Ubrelvy (AR 1495). 2 Finally, the ALJ made no effort to develop why Plaintiff did not seek treatments 3 the ALJ believed should have been pursued.
4 Where the treating source has prescribed treatment clearly expected to restore ability to engage in any SGA (or gainful activity, as 5 appropriate), but the disabled individual is not undergoing such treatment, appropriate development must be made to resolve whether 6 the claimant or beneficiary is justifiably failing to undergo the treatment prescribed. 7 Development With the Claimant or Beneficiary--The claimant or 8 beneficiary should be given an opportunity to fully express the specific reason(s) for not following the prescribed treatment. Detailed 9 questioning may be needed to identify and clarify the essential factors of refusal. 10 The record must reflect as clearly and accurately as possible the 11 claimant's or beneficiary's reason(s) for failing to follow the prescribed treatment. 12 Individuals should be asked to describe whether they understand the 13 nature of the treatment and the probable course of the medical condition (prognosis) with and without the treatment prescribed. The 14 individuals should be encouraged to express in their own words why the recommended treatment has not been followed. 15 Titles II & XVII: Failure to Follow Prescribed Treatment, SSR 82-59 (S.S.A. 1982). The 16 undersigned has found no such development of the record. Instead, Defendant is now 17 attempting to rely on such matters for the first time on judicial appeal. 18 (4). Psychological Impairments 19 Defendant argues that the ALJ could have relied on persuasive psychological 20 opinions of functional capacity as a reason to find the Listing not met. (f. at 3-4.) But 21 Defendant offers nothing to show ALJ did rely on this reason. Moreover, meeting 22 psychological criteria is not required to meet Listing 11.02B, and even Listing 11.02D can 23 be met by physical impairment without psychological impairment. See 20 C.F.R. § Pt. 24 404, Subpt. P, App. 1, 11.02D (“a marked limitation in one of the following: 1. Physical 25 functioning (see 11.00G3a); or…”). 26 “To evaluate whether a primary headache disorder is equal in severity and duration 27 to the criteria in 11.02D, we consider the same factors we consider for 11.02B and we also 1 consider whether the overall effects of the primary headache disorder on functioning 2 results in marked limitation in: Physical functioning; understanding, remembering, or 3 applying information; interacting with others; concentrating, persisting, or maintaining 4 pace; or adapting or managing oneself.” Titles II & XVI: Evaluating Cases Involving 5 Primary Headache Disorders, SSR 19-4P (S.S.A. Aug. 26, 2019) (emphasis added). 6 (5). Brain Imaging 7 Citing a correlation between migraines and resulting forgetfulness, Defendant 8 argues that the ALJ properly relied on inconsistency with the objective medical evidence, 9 including limited findings on brain imaging and treatment notes reflecting good memory 10 (f. at 4-5). But Defendant offers nothing to show that brain imaging would reflect 11 migraines. Indeed, the Agency recognizes that “an unremarkable MRI is consistent with 12 a primary headache disorder diagnosis” and identifies imaging as only a means of ruling 13 out other possible causes of headaches. Titles II & XVI: Evaluating Cases Involving 14 Primary Headache Disorders, SSR 19-4P (S.S.A. Aug. 26, 2019).4 15 (6). Good Memory As for good memory, Defendant cites AR 26, 51 and 739 for the proposition that 16 Plaintiff contended the migraines and memory loss were related. But AR 26 makes no 17 such correlation, and cites memory loss as only one of Plaintiff’s many complaints at a 18 July 21, 2021 visit, many of which were plainly unconnected, including “carpal tunnel 19 pain, discoloration in her hands and feet, forgetfulness.” (AR 26 (citing Ex. B9F at 17- 20 18).) The cited record merely noted that Plaintiff complained, under “Cognition,” that 21 Plaintiff was “Noticing she is misplacing items.” (AR 740 (Ex. B9F at 18.) Plaintiff made 22 no assertion of a correlation of that condition to her migraines, nor did the provider. 23 At AR 51, the ALJ inquired about Plaintiff’s memory problems: 24
25 Q And what do you think your memory problems are a result of? 26 A I, honestly, a good bit is like due to migraines. The seizures will cause memory lapses. Sometimes that's the only way that I know 27 1 acnudt stlhicee lda sitn p tahret wthraotn Ig r epmlaecme. b er of the movie, it's like the movie got 2 Because if it's a movie I've seen several times I'll go from okay, this is the last part of the move I remember, but it will be like 3 somebody fast forwarded it while my eyes were closed, you know, because it will be at a completely different part when I come out of 4 the seizure, and I'm like oh, crap. 5 (AR 51.) While Plaintiff referenced the migraines, the bulk of her statements correlated 6 the memory loss to seizures. To the extent that the ALJ relied on medical records 7 reflecting observations of “good memory,” Defendant fails to explain how memory 8 evaluations during the course of exam would be expected to reflect memory loss due to 9 migraines or seizures, if they did not occur during the examination. 10 AR 739, a preceding portion of the record referenced by the ALJ at AR 26, contains 11 no apparent reference to memory loss. 12 D. STEP FOUR – RESIDUAL FUNCTIONAL CAPACITY 13 Plaintiff further contends that the ALJ’s errors at Step Three regarding her 14 migraines and seizures continued into the Step Four RFC analysis, where the ALJ included 15 no limitations in the RFC responsive to this “severe impairment.” Defendant relies upon 16 the foregoing assertions about the ALJ’s discrediting of Plaintiff’s symptoms testimony 17 regarding this impairment. For the reasons discussed hereinabove, the ALJ failed to 18 support that rejection with specific, clear and convincing reasons supported by substantial 19 evidence. See Trevizo, 871 F.3d at 678. Apart from the unsupported credibility 20 determination, Defendant points to, and the undersigned has found, no portion of the ALJ’s 21 RFC analysis that accounts for Plaintiff’s migraine symptoms testimony. 22
23 E. HARMLESSNESS 24 The undersigned concludes the ALJ relied on reasons that fail to meet the standard 25 of specific, clear and convincing reasons supported by substantial evidence to reject 26 Plaintiff’s symptoms testimony regarding her migraines and seizures, and thus failed to 27 adequately explain at Step 3 the failure to find Plaintiff met Listing 11.02, or to account at 1 Step 4 for the resulting severe impairments in developing an RFC. 2 However, harmless error principles apply in the Social Security context. Molina, 3 674 F.3d at 1115. Here, apart from arguing the absence of error, Defendant urges no basis 4 for the Court to conclude the error was harmless. The undesigned concludes it was not. 5 If Plaintiff’s symptoms testimony regarding her migraines and seizures were credited, 6 Plaintiff would have been entitled to a determination of disability under the Listings, and 7 Defendant proposes no basis on which the Court could conclude the remaining RFC would 8 have supported employability. 9 Accordingly, the decision must be reversed. 10 11 F. APPROPRIATE REMEDY 12 Upon review of the Commissioner's decision denying benefits, this Court has 13 “power to enter ... a judgment affirming, modifying, or reversing the decision of the 14 Commissioner of Social Security, with or without remanding the cause for a 15 rehearing.” 42 U.S.C. § 405(g). Plaintiff argues for a remand for award of benefits. 16 “[I]n appropriate circumstances courts are free to reverse and remand a 17 determination by the Commissioner with instructions to calculate and award benefits.” 18 Garrison v. Colvin, 759 F.3d 995, 1019 (9th Cir. 2014). The Ninth Circuit applies the 19 credit-as-true rule, which requires the following three factors to be satisfied for an 20 immediate award of benefits: (1) the record has been fully developed and further 21 administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 22 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or 23 medical opinion; and (3) the ALJ would be required to find the claimant disabled if the 24 improperly discredited evidence were credited as true. Id. at 1020. Courts may “remand 25 for further proceedings when, even though all conditions of the credit-as-true rule are 26 satisfied, an evaluation of the record as a whole creates serious doubt that a claimant is, in 27 fact, disabled.” Id. Plaintiff has met the last two requirements under this standard. Even 1 a Social Security case usually should be remanded. Id. 2 Here, the undersigned concludes that additional proceedings may be able to remedy 3 the defects in the proceeding. For example, the ALJ may be able to develop a record 4 regarding Plaintiff’s failure to seek additional treatment for her migraines and seizures, 5 including the expected efficacy of such treatment and Plaintiff’s reasons for not pursuing 6 it. 7 G. CONCLUSION 8 IT IS THEREFORE RECOMMENDED: 9 (A) The final decision of the Commissioner of Social Security be REVERSED. 10 (B) This matter be REMANDED to the Commissioner for REHEARING. 11 (C) The Clerk be directed to enter judgment accordingly. 12
13 EFFECT OF RECOMMENDATION 14 This recommendation is not an order that is immediately appealable to the Ninth 15 Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of 16 Appellate Procedure, should not be filed until entry of the district court's judgment. 17 However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall 18 have 14 days from the date of service of a copy of this recommendation within which to 19 file specific written objections with the Court. Thereafter, the parties have 14 days within 20 which to file a response to the objections. Failure to timely file objections to any findings 21 or recommendations of the Magistrate Judge will be considered a waiver of a party's right 22 to de novo consideration of the issues, see United States v. Reyna-Tapia, 328 F.3d 1114, 23 1121 (9th Cir. 2003)(en banc), and will constitute a waiver of a party's right to appellate 24 review of the findings of fact in an order or judgment entered pursuant to the 25 recommendation of the Magistrate Judge, Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th 26 Cir. 2007). 27 l otherwise permitted by the Court, an objection to a Report and Recommendation issued 2 || by a Magistrate Judge shall not exceed ten (10) pages.” || Dated: May 15, 2026 4 28115 RR-2605 056 SSA Appeal docx United States Magistrate Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28