United States District Court, D. Alaska
Russel Holland, United States District Judge
an action for judicial review of the denial of disability
benefits under Title II and Title XVI of the Social Security
Act, 42 U.S.C. §§ 401-434, 1381-1383f. Plaintiff
Eric Maurice Cannon has timely filed his opening brief,
to which defendant, the Commissioner of the Social Security,
has timely responded. Oral argument was not requested and is
not deemed necessary.
24, 2014, plaintiff filed applications for disability
benefits under Title II and Title XVI of the Social Security
Act. Plaintiff alleged that he became disabled due to a
learning disability, head trauma, and migraine headaches.
Plaintiff alleged that he became disabled on November 28,
2013. Plaintiff's applications were denied. Plaintiff
requested a hearing. After an administrative hearing on
August 4, 2016, an administrative law judge (ALJ) denied
plaintiff's claims. Plaintiff sought review of the
ALJ's unfavorable decision. On March 29, 2018, the
Appeals Council denied plaintiff's request for review of
the ALJ's decision, thereby making the ALJ's December
12, 2016 decision the final decision of the Commissioner.
30, 2018, plaintiff commenced this action in which he asks
the court to review the final decision of the Commissioner.
was born on February 11, 1991. Plaintiff was 25 years old at
the time of the administrative hearing. Plaintiff has a high
school education. Plaintiff had an IEP throughout his
schooling and “qualifie[d] for special education
services as learning disabled in the areas of Math, Reading,
and Written Expression.” Plaintiff's past
relevant work includes work as an asbestos remover,
roustabout, and event setup worker.
first determined that plaintiff “meets the insured
status requirements of the Social Security Act through June
then applied the five-step sequential analysis used to
determine whether an individual is disabled.
one, the ALJ first found that plaintiff had “engaged in
substantial gainful activity during the following period:
November and December 2014. . . .” However, the ALJ
also found that “there has been a continuous 12-month
period(s) during which the claimant did not engage in
substantial gainful activity. The remaining findings address
the period(s) during which the claimant did not engage in
substantial gainful activity.”
two, the ALJ found that plaintiff had “the following
severe impairments: history of closed head injuries,
seizures, migraine headaches, and cognitive disorder. . .
.”The ALJ found that any functional
limitations related to plaintiff's diagnoses of
intellectual disability/borderline intellectual functioning
and learning disorder were “adequately accounted for by
consideration of the claimant's cognitive disorder as a
severe impairment.”The ALJ found plaintiff's
diagnoses of attention-deficit/hyperactivity and depressive
three, the ALJ found that plaintiff did “not have an
impairment or combination of impairments that meets or
medically equals the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1. . .
.” The ALJ considered Listings 11.18
(cerebral trauma/traumatic brain injury) and 12.02
(neurocognitive disorder). The ALJ considered the
“paragraph B” criteria and found that plaintiff
had mild restrictions in activities of daily living; mild
difficulties with social functioning; moderate to marked
difficulties with regard to concentration, persistence, or
pace; and no episodes of decompensation, which had been of
extended duration. The ALJ also found that the
“paragraph C” criteria were not
steps three and four, the ALJ must, as an intermediate step,
assess the claimant's RFC.” Bray v. Comm'r
of Social Security Admin., 554 F.3d 1219, 1222-23 (9th
Cir. 2009). The ALJ found that plaintiff had
the residual functional capacity to perform a full range of
work at all exertional levels but with the following
nonexertional limitations: the claimant cannot climb ladders,
ropes, or scaffolding; can have no exposure to unprotected
heights; needs to avoid concentrated exposure to non-weather
extreme cold and extreme heat; and needs to avoid
concentrated exposure to excessive vibrations. The claimant
is also limited to working in places and situations where
there would be no more than normal commercial/industrial
lighting and in which he would not be around anyone who would
be welding or causing any excessive flashing or bright
lights. Further, the claimant is limited to unskilled work
that does not involve the use of detailed written
found plaintiff's symptom statements less than credible
because they were inconsistent with the medical evidence,
because plaintiff had not sought regular neurological
treatment, because they were inconsistent with his daily
activities, because they were inconsistent with statements
from plaintiff's past employers, and because plaintiff
called in sick or left early only 5 or 6 times during the
course of working full-time for nine months.
gave great weight to Dr. White's opinion. The ALJ
gave little weight to Dr. Roberts'
opinions. The ALJ gave partial weight to the
opinions of Drs. Fraser and Russo.The ALJ gave little
weight to Dr. Fuller's opinion regarding
plaintiff's ability to be exposed to noise but great
weight to the rest of her opinion. The ALJ gave little
weight to Dr. Youngblood's
opinion. The ALJ gave little weight to Dr.
Jones' opinion that plaintiff requires clear and
concise expectations and that plaintiff would do best in
positions with limited public and co-worker contact but great
weight to the rest of her opinion. The ALJ gave great
weight to Dr. Hill's opinion that plaintiff had no
periods of decompensation for extended periods and his
opinion that plaintiff “is able to understand,
remember, and follow-through with simple one-to-two step
instructions.” The ALJ gave little
weight to Dr. Cherry's
opinion. The ALJ gave great
weight to Dr. Moore's
opinion. The ALJ gave some
weight to the lay testimony of
plaintiff's sister,  plaintiff's mother,
 Terria Clayton,  and
Angela Gray. The ALJ considered the testimony of
plaintiff's former employers, Karl Green and Greg Tyler,
but did not assign any specific weight to their
four, the ALJ found that plaintiff was “unable to
perform any past relevant work. . . .”
five, the ALJ found that “there are jobs that exist in
significant numbers in the national economy that the claimant
can perform” including work as a bagger/hand packer,
laundry worker, or horticultural worker.
thus concluded that plaintiff had “not been under a
disability, as defined in the Social Security Act from
November 28, 2013, through the date of this decision. . .
to 42 U.S.C. § 405(g), the court has the “power to
enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of
the Commissioner. . . .” The court “properly
affirms the Commissioner's decision denying benefits if
it is supported by substantial evidence and based on the
application of correct legal standards.” Sandgathe
v. Chater, 108 F.3d 978, 980 (9th Cir. 1997).
“Substantial evidence is ‘more than a mere
scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.'” Id. (quoting
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995)). “‘To determine whether substantial
evidence supports the ALJ's decision, [the court]
review[s] the administrative record as a whole, weighing both
the evidence that supports and that which detracts from the
ALJ's conclusion.'” Id. (quoting
Andrews, 53 F.3d at 1039). If the evidence is
susceptible to more than one reasonable interpretation, the
court must uphold the Commissioner's decision.
Id. But, the Commissioner's decision cannot be
affirmed “‘simply by isolating a specific quantum
of supporting evidence.'” Holohan v.
Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
first argues that the ALJ erred in giving Dr. White's
opinion great weight. Dr. White was plaintiff's primary
care physician. On January 31, 2014, Dr. White
“cleared” plaintiff “to return to work
without restrictions.” The ALJ gave great
weight to this opinion because “it is consistent with
[th]e record as a whole showing that the claimant did not
seek neurological treatment from the alleged onset date to
late July 2014 . . ., thus indicating that he did not
experience functional limitations to the extent he has
alleged during this time period.” The ALJ also gave
Dr. White's opinion great weight because he was
plaintiff's primary care physician.
argues that there are two problems with the ALJ assigning
great weight to Dr. White's opinion. First, plaintiff
argues that Dr. White's opinion is not supported by his
treatment notes, since as the ALJ observed, plaintiff had not
had significant treatment prior to July 2014. Second,
plaintiff contends that the ALJ's attempt to explain
plaintiff's lack of treatment fails. In a footnote, the
ALJ noted that “[a]lthough there is indication that the
claimant did not have health insurance coverage during at
least part of the period at issue . . ., there is no
explanation as to why he was not eligible for such coverage
under the provisions of the Affordable Care
Act.” Plaintiff contends that if the ALJ
had questions as to his insurance coverage, the ALJ should
have brought this issue up at the administrative hearing.
to plaintiff's argument, Dr. White's opinion was
supported by his treatment notes. Dr. White's notes
indicate that while plaintiff had migraines, ranging from 1
or 2 a month to 2-4 per year, his headaches responded well to
Imitrex and Phenergan.
the ALJ's explanation that Dr. White's opinion was
consistent with the fact that plaintiff did not seek
treatment for his headaches from the alleged onset date in
November 2013 until July 2014, the record does bear this out.
Plaintiff did not seek any treatment for his headaches during
this time period. But, plaintiff is correct that it is not
clear from the record why he was not receiving treatment at
that time. If it was because he lacked insurance and could
not afford treatment, that fact should not weigh against him.
See Trevizo v. Berryhill, 871 F.3d 664, 681 (9th
Cir. 2017) (quoting Gamble v. Chater, 68 F.3d 319,
321 (9th Cir. 1995)) (“‘Disability benefits may
not be denied because of the claimant's failure to obtain
treatment he cannot obtain for lack of funds.'”)
The ALJ questioned why plaintiff would not have had insurance
under the Affordable Care Act, but the ALJ did not explore
that does not necessarily mean that the ALJ erred as to Dr.
White's opinion. As discussed above, Dr. White's
opinion was supported by his treatment notes. Thus, the ALJ
did not err in giving Dr. White's opinion great weight.
next argues that the ALJ should have further developed the
record after Dr. Moore criticized Dr. Youngblood's and
Dr. Cherry's testing methods. “The ALJ always has a
‘special duty to fully and fairly develop the record
and to assure that the claimant's interests are
considered.'” Garcia v. Comm'r of Social
Sec., 768 F.3d 925, 930 (9th Cir. 2014) (quoting
Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir.
2003)). “The ALJ's duty to develop the record fully
is also heightened where the claimant may be mentally ill and
thus unable to protect h[is] own interests.”
Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir.
2001). “Ambiguous evidence, or the ALJ's own
finding that the record is inadequate to allow for proper
evaluation of the evidence, triggers the ALJ's duty to
‘conduct an appropriate inquiry.'”
Id. (quoting Smolen v. Chater, 80 F.3d at
1273, 1288 (9th Cir. 1996)). “The ALJ may discharge
this duty in several ways, including: subpoenaing the
claimant's physicians, submitting questions to the
claimant's physicians, continuing the hearing, or keeping
the record open after the hearing to allow supplementation of
the record.” Id.
Moore criticized Dr. Youngblood's assessments of
borderline intellectual functioning and learning disabilities
or disorders NOS. She explained that Dr. Youngblood
relied on “the WAIS-IV and the RADD” to reach his
conclusions but that
[t]he RADD is not an ideal assessment for learning problems.
It's a screening tool. It kind of gives an overview of
where the difficulties are, but overall . . . I thought that
the learning disorders were, . . . as revealed by the RADD, .
. . really consis- tent with the claimant's baseline IQ,
and so many folks would not even go to the actual level of
saying there are learning disabilities.
Dr. Cherry, Dr. Moore testified that his administration of
the WAIS-IV was “out of the standard of acceptable
testing practice” because he “leaves out some of
Moore also found fault with Dr. Cherry's evaluation
[t]here are test[s] reported as administered but results are
not always provided in the report. I think that's the
case here. He had documented on one report, he had some
neurological notes and that sort of thing, but his own
assessment tools are not always reported.
argues that because Dr. Moore criticized the testing methods
used by Dr. Youngblood and Dr. Cherry, the ALJ should have
either asked Dr. Moore if further testing was needed to
clarify their results or ordered new testing. Plaintiff
argues that Dr. Moore opined that the evidence in the record
was flawed and thus the ALJ had a duty to further develop the
Moore's testimony did not trigger the ALJ's duty to
further develop the record. Dr. Moore's testimony did not
create any ambiguities in the evidence. Rather, in
criticizing Dr. Youngblood's and Dr. Cherry's testing
methods, Dr. Moore was explaining why her opinion was
different from theirs. Moreover, Dr. Moore testified that she
had adequate information on which to base her opinion. Dr.
Moore testified that “I don't think I need to know
anything more than what I already do” and that
she had “enough evidence to have an opinion as to the
claimant's medical status[.]” Dr. Moore also
testified that the records from plaintiff's youth were
not complete but that while such information would be
“interesting and historical”, it was not
necessarily required to evaluate plaintiff in the
next argues that the ALJ's duty to further develop the
record was triggered by Greg Tyler's testimony. Tyler was
plaintiff's former employer at the Egan Convention
Center. On August 4, 2016, Tyler wrote that plaintiff
was hired on 7/22/15 and his last day of employment was
4/30/16. Eric's job title was conversion worker, his main
duties w[ere] to setup stages and chairs for multiple events
and tear down after events. It became clear early on to
co-workers and management that Eric had problems remembering
and performing his duties when given multiple tasks. We had
to ask all of our employees and management to only assign
Eric one task to perform at a time because of his disability.
I work[ed] with Eric so he could make all of his appointments
with his neurologist. Eric called off or left work 5 to 6
times during his employment with SMG because of se[vere]
considered Tyler's testimony and found that it indicated
that plaintiff's migraines
did not significantly interfere with his job performance. . .
. Rather, although Mr. Tyler reported that it became clear
early on to both co-workers and management that the claimant
had problems with remembering and performing his duties when
given multiple tasks, it was also reported that he was
nevertheless able to maintain his employment in this position
by being assigned only one task at a time . . .
also noted that “[a]lthough it was indicated that the
claimant called in sick from work or left work early
approximately five or six times due to severe headaches,
there is no indication that this was a problem for this
employer such that the claimant was let go as a
argues that the ALJ should have further developed the record
as to Tyler's testimony because Tyler did not expressly
explain why plaintiff no longer worked for him. Plaintiff
also points out that Tyler indicated that he accommodated
plaintiff's medical appointments and call outs and his
limitations as to remembering instructions. Plaintiff argues
that the ALJ should have explored with the vocational expert
whether these were accommodations that all employers could
reasonably be expected to provide or whether the need for
such accommodations would have eroded the number of jobs
available for someone with plaintiff's limitations.
Plaintiff also seems to suggest that the ALJ should have
clarified whether his work at the Egan Center was considered
full time or part time.
Tyler did not indicate why plaintiff no longer worked at the
Egan Center, plaintiff testified that he stopped work because
Dr. Roberts “just told me, you know what, we're
taking - we're just completely taking you off work until
we get this [plaintiff's headaches] figured
out.” This testimony is supported by Dr.
Roberts' treatment notes from 2016, in which he advises
plaintiff to stop working. There was nothing further for the
ALJ to develop as to this issue.
whether plaintiff worked full time or part time, the record
is clear that plaintiff worked essentially full time at the
Egan Center. The ALJ indicated that plaintiff had
testified that he worked “nearly” full time,
working 38 hours a week,  and other evidence
indicated that “[a]lthough it is technically part-time,
” plaintiff was working 40 hours per week at the Egan
Center. There was nothing further for the
ALJ to develop as to this issue.
the accommodations that were made by the Egan Center, Tyler
stated that plaintiff was limited to one task at time. The
ALJ limited plaintiff to unskilled work. The Social Security
regulations define unskilled work as “work which needs
little or no judgment to do simple duties that can be learned
on the job in a short period of time.” 20 C.F.R. §
416.968(a). While some unskilled work might only require an
employee to do only one task at a time, it is not clear that
all unskilled work would encompass such a limitation. It is
not clear what impact, if any, plaintiff's ability to
only perform one task at a time would have on his ability to
sustain full-time employment. The ALJ should have further
developed the record as to this issue.
the call-out issue, Tyler stated that plaintiff called out
5-6 times in a nine-month period. The ALJ noted that there
was no indication that this level of call outs was a problem
for Tyler,  but that does not necessarily mean
that it would not be a problem for other employers. The ALJ
should have clarified with the vocational ...