Panoncillo v. Kijakazi

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
BENJAMIN PANONCILLO,
Plaintiff,
vs.
KILOLO KIJAKAZI, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
CIV. NO. 23-00120 LEK-WRP
ORDER: GRANTING IN PART AND DENYING IN PART PLAINTIFF’S APPEAL;
REVERSING THE ADMINISTRATIVE LAW JUDGE’S DECISION;
AND REMANDING THE CASE FOR FURTHER PROCEEDINGS
Before the Court is Plaintiff Benjamin Panoncillo’s
(“Plaintiff”) appeal from both Administrative Law Judge Jesse
Pease’s (“ALJ”) July 28, 2021 Decision and the Appeals Council’s
denial of Plaintiff’s request for review of the ALJ’s Decision
(“Appeal”). 1 	Plaintiff’s Opening Brief was filed on June 5,
2023. 	[Dkt. no. 10.] 	Defendant Kilolo Kijakazi, Acting
Commissioner of Social Security (“the Commissioner”) filed the
Answering Brief on July 3, 2023, and Plaintiff filed his Reply
1 The Decision, including the Notice of Decision –
Unfavorable and the List of Exhibits, is available in the
Administrative Record Dated March 24, 2023 (“AR”) at 17-35.
[AR, filed 5/3/23 (dkt. no. 5), Documents Related to
Administrative Process Including Transcript of Oral Hearing, if
applicable (dkt. no. 5-3) at PageID.33-51.] 	The Appeals Council
denied Plaintiff’s request for review on January 3, 2023.
[Notice of Appeals Council Action (“AC Notice”), AR at 1-6 (dkt.
no. 5-3 at PageID.17-22).]
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Brief on July 12, 2023. 	[Dkt. nos. 13, 14.] 	Oral argument on
the Appeal was heard on September 8, 2023. 	For the reasons set
forth below, Plaintiff’s Appeal is granted in part and denied in
part. 	The Appeal is granted, insofar as the ALJ’s Decision is
reversed as to the ALJ’s rejection of Plaintiff’s subjective
testimony about the amount of weight he is able to lift and
carry. 	The Appeal is denied as to Plaintiff’s argument
regarding the ALJ’s consideration of the medical opinions about
Plaintiff’s ability to lift and carry. 	In light of the ruling
regarding the consideration of Plaintiff’s testimony, it is not
necessary for this Court to address the other arguments
presented in the Appeal. 	The matter is remanded to the ALJ for
further proceedings consistent with this Order.
BACKGROUND
On January 10, 2020, Plaintiff protectively filed a
Title II application for disability and disability insurance
benefits, alleging he was disabled as of February 27, 2019.
Plaintiff’s claim was denied, initially and on reconsideration.
On October 15, 2020, Plaintiff filed a written request for a
hearing. 	At the July 15, 2021 hearing before the ALJ, Plaintiff
was represented by Damian Holzmeister, Esq., and Plaintiff and
Sugi Komarov, an impartial vocational expert (“VE”), testified.
[Decision, AR at 20 (dkt. no. 5-3 at PageID.36).]
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Plaintiff testified that the last time he held a full-
time job was in 2017 or 2018, when he worked as a
cleaner/janitor. 	According to Plaintiff, his employer let him
go when the employer found out about his condition. 	Beginning
in the second half of 2019, Plaintiff worked fifteen hours per
week at City Mill. 	Until he was laid off in May 2021, Plaintiff
was working as janitor, but the job was on-call, and less than
ten hours per week. 	[Social Security Administration Office of
Disability Adjudication and Review Transcript of 7/15/21 hearing
(“Hrg. Trans.”), AR at 42-44 (dkt. no. 5-3 at PageID.58-60).]
However, Plaintiff did not earn enough money at any of those
maintenance positions for the position to constitute past
relevant work. 	[Id. at 47 (dkt. no. 5-3 at PageID.63).]
Plaintiff previously worked for Ekahi, a fire
protection company, as a pipe fitter and welder. 	He started
that job in 1988 when the company was called Alstom. 	[Id. at 45
(dkt. no. 5-3 at PageID.61).] 	Plaintiff stated he “was in fit
condition at that time,” and the job required him to lift more
than fifty pounds. 	[Id.] 	That was the only job that the ALJ
found to be past relevant work. 	[Id. at 47 (dkt. no. 5-3 at
PageID.63).]
Plaintiff testified that he is unable to work because
the two medications he takes for his epilepsy – Lamotrigine and
a form of carbamazepine - are causing deterioration of the
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cartilage in his joints, causing pain and impairing his balance. 2
[Id. at 48, 52 (dkt. no. 5-3 at PageID.64, PageID.68).]
Specifically, pain in his hip and his ankle make it difficult
for him to walk. 	[Id. at 52 (dkt. no. 5-3 at PageID.68).]
According to Plaintiff, the maintenance jobs that he worked
required a lot of walking, and he walked and worked too slowly
because of the pain. 	Plaintiff’s boss said that the job
required someone who would work a little faster. 	[Id. at 49
(dkt. no. 5-3 at PageID.65).]
Plaintiff also testified that he was still
experiencing seizures with blackouts, with the most recent one
occurring the weekend before the hearing. 	According to
Plaintiff, he usually experiences seizures twice a week. 	At the
time of the hearing, Plaintiff was taking medication to manage
the seizures, and he testified that his doctor had increased the
dosage. 	[Id. at 49-50 (dkt. no. 5-3 at PageID.65-66).]
Plaintiff testified that a seizure would last approximately five
seconds, and then he would black out. 	It would take him
approximately five minutes for him to recover and to remember
2 Plaintiff described the medication as causing arthritis,
[Hrg. Trans., AR at 48 (dkt. no. 5-3 at PageID.64),] but the ALJ
noted that what Plaintiff appeared to be experiencing was
osteopenia, weaking of the bones, caused by his medication, [id.
at 55 (dkt. no. 5-3 at PageID.71)].
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where he was and what he was doing. 	[Id. at 50 (dkt. no. 5-3 at
PageID.66).]
Plaintiff also has vertigo that he experiences while
he is sleeping and causes him to wake up regularly in the middle
of the night. 	He takes medication for the vertigo. 	Plaintiff
described problems with kidney stones, which he said were caused
by the vitamin C he was taking to improve his balance. 	His
doctor directed him to stop taking the vitamin C because of the
kidney stones. 	[Id. at 51 (dkt. no. 5-3 at PageID.67).]
Plaintiff testified that, while he was working, he
would walk for approximately thirty minutes or an hour, then he
would start walking slowly and would need to rest for up to five
minutes before he could start walking again. 	[Id. at 52-53
(dkt. no. 5-3 at PageID.68-69).] 	As to his ability to lift and
carry, Plaintiff testified that, when he has tried to exercise,
he has difficulty picking up one twenty-pound dumbbell. 	[Id. at
53 (dkt. no. 5-3 at PageID.69).]
On a typical day, Plaintiff takes care of his family’s
home while his wife goes to work. 	He cleans the house, takes
care of his son, and drives his son to and from school. 	Other
than taking his son to and from school, Plaintiff only drives
when he needs to go to a doctor’s appointment. 	[Id. at 53-54
(dkt. no. 5-3 at PageID.69-70).] 	Plaintiff testified that he
has a valid driver’s license, but he acknowledged that Hawai`i
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requires someone to be seizure-free for a period of time before
he can drive. 	Plaintiff’s doctor has never mentioned anything
to him about not driving, but Plaintiff tries not to drive, for
the sake of everyone’s safety. 	[Id. at 54-55 (dkt. no. 5-3 at
PageID.70-71).]
The VE testified that there were three occupations,
which existed in significant numbers in the national economy,
that a hypothetical person with the limitations that the ALJ
ultimately included in Plaintiff’s residual functional capacity
(“RFC”) could perform. 	See id. at 57-61 (dkt. no. 5-3 at
PageID.73-77).
In the Decision, the ALJ found that Plaintiff was
insured, for purposes of the Social Security Act, through
September 30, 2024. 	[Decision, AR at 23 (dkt. no. 5-3 at
PageID.39).] 	At step one of the five-step sequential analysis
to determine whether a claimant is disabled, the ALJ found that
Plaintiff had not engaged in substantial gainful employment
since February 27, 2019. 	[Id.]
At step two, the ALJ found that Plaintiff’s seizure
disorder with vertigo and obesity constituted severe
impairments. 	[Id. (citing 20 CFR 404.1520(c) and 416.920(c)).]
The ALJ also noted Plaintiff had a number of other impairments,
including, inter alia, kidney stones, exotropia in his right
eye, hypertension, chronic kidney disease, osteopenia,
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hyperlipidemia, sleep apnea, mild degeneration in his hip
joints, and bursitis. 	[Id. at 23-24 (dkt. no. 5-3 at PageID.39-
40).] 	The ALJ found that these were not severe because “they
were treated with routine medication or lifestyle modification
recommendations, the impairments did not last, or are not
expected to last, for a continuous period of at least 12 months,
and/or there is no indication of more than minimal limitations
on the claimant’s ability to perform basic work activities.”
[Id. at 24 (dkt. no. 5-3 at PageID.40).]
At step three, the ALJ found that none of Plaintiff’s
impairments, either individually or in combination, met or
equaled one of the impairments listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1. 	[Id. (citing 20 CFR 404.1520(d),
404.1525, 404.1526, 416.920(d), 416.925, 416.926).]
In the step four analysis, the ALJ found that
Plaintiff had the RFC
to perform medium work as defined in 20 CFR
404.1567(c) and 416.967(c), except: frequent
postural activities; frequent stairs and ramps;
seizure precautions to include no hazardous
machinery; no unprotected heights; no ladders,
ropes, or scaffolds; no driving; no climbing
(other than a few stairs like in front of a
building); and no large bodies of water.
[Id. at 25 (dkt. no. 5-3 at PageID.41).] 	The ALJ found that
Plaintiff’s impairments could reasonably be expected to cause
the symptoms that Plaintiff described, but the totality of the
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evidence was not consistent with Plaintiff’s statements nor with
his hearing testimony about the intensity, persistence, and
limiting effects of his symptoms. 	[Id. at 26 (dkt. no. 5-3 at
PageID.42).]
The ALJ pointed out that, on June 25, 2021,
neurologist Stuart W.H. Pang, M.D., noted Plaintiff’s epilepsy
diagnosis. 	[Id. at 27 (dkt. no. 5-3 at PageID.43) (citing
Exh. 8F). 3 ] 	However, the ALJ stated there was no evidence in the
medical record regarding Plaintiff’s “reported intensity and
persistence of seizures.” 	[Id.] 	The Pang Statement also notes
that Plaintiff’s “MRI brain shows extensive left posterior
encephalmomalacia with volume loss” and that Plaintiff “has a
lifelong learning disorder.” 	[Exh. 8F (Pang Statement), AR at
497 (dkt. no. 5-8 at PageID.518).] 	Dr. Pang opined that: in a
typical workday, Plaintiff’s symptoms would be severe enough to
cause him to be off-task more than twenty-five percent of the
time; Plaintiff would only be able to maintain attention and
concentration for less than fifteen minutes at a time because of
his symptoms and/or medication; Plaintiff was likely to be
3 Exhibit 8F is a transmission of the Treating Source
Statement - Physical Conditions by Dr. Pang, dated June 25, 2021
(“Pang Statement”). 	[AR at 495-500 (dkt. no. 5-8 at PageID.516-
21).] 	Dr. Pang states that he saw Plaintiff in August 2020,
December 2020, and June 2021 for Plaintiff’s epilepsy, which
Dr. Pang noted that Plaintiff had since childhood. 	[Id. at 497
(dkt. no. 5-8 at PageID.518).]
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absent more than four days per month. 	[Id.] 	The ALJ ultimately
found these opinions to be unpersuasive because they were “not
well supported nor consistent with the longitudinal test
results, exam findings, and other opinion evidence[.]”
[Decision, AR at 24 (dkt. no. 5-3 at PageID.40).]
The ALJ also noted Dr. Pang opined that Plaintiff had
the following exertional limitations:
lift and carry 20 pounds rarely, and up to 10
pounds occasionally; sit 8 hours total in an 8
hour workday; stand and walk 2 hours total in an
8 hour workday; use the arms and hands for
reaching, handling, fingering, feeling, pushing,
and pulling frequently; frequently use bilateral
foot controls; occasionally climb stairs and
ramps, balance, stoop, kneel, crouch, crawl, and
rotate the head and neck; never climb ladders and
scaffolds; never be exposed to unprotected
heights, moving mechanical parts, operate a
vehicle; rarely be exposed to extreme cold or
heat; and occasionally be exposed to humidity and
wetness and pulmonary irritants, and vibration.
[Id. at 28 (dkt. no. 5-3 at PageID.44) (citing Exh. 8F).] 	The
ALJ found that the limitations that Plaintiff could not use
ladders, ropes, or scaffolds and that he could not drive were
consistent with his epilepsy condition. 	[Id. (citing Exhs. 1F;
2F/6; 8F). 4 ] 	However, the ALJ found that the rest of Dr. Pang’s
4 Exhibit 1F is the Health Information Technology (HIT)
Medical Report from Queen’s Medical Center (“Queen’s”) for the
period from March 19, 2018 to May 15, 2019 (“Queen’s HIT
Report”). 	[AR at 386-401 (dkt. no. 5-8 at PageID.407-22).]
Exhibit 2F is the Health Information Technology (HIT) Medical
Report from Kaiser Permanente (“Kaiser”) for the period from
(. . . continued)
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exertional opinions were “not persuasive since the limitations
are not well supported by specific objective findings during the
period at issue” and “Dr. Pang’s limitations are not consistent
with the test results and exam findings during the period[.]”
[Id. (citation omitted).]
State agency consultants found that there was
insufficient evidence to evaluate Plaintiff’s claim. 	[Exh. 2A,
AR at 136 (dkt. no. 5-4 at PageID.153); Exh. 4A, AR at 145 (dkt.
no. 5-4 at PageID.162); Exh. 6A, AR at 153 (dkt. no. 5-4 at
PageID.170); Exh. 8A, AR at 162 (dkt. no. 5-4 at PageID.172). 5 ]
Dr. Lau opined that “[t]he totality of evidence appears to
suggest [Plaintiff] is cable of at least a ‘light’ RFC,” but
January 23, 2019 to October 3, 2019 (“Kaiser HIT Report”). 	[AR
at 402-19 (dkt. no. 5-8 at PageID.423-40).] 	Pages 5 and 6 of
Exhibit 2F are the Progress Notes by Megan D. Hiles, M.D., for
Plaintiff’s February 11, 2019 visit. 	[AR at 406-07 (dkt. no. 5-
8 at PageID.427-28)].
5 Exhibit 2A is the Disability Determination Explanation for
the DIB claim at the Initial level, signed by S. Lau, M.D., on
March 17, 2020 and by Rui Wen Chong (“Chong”) on March 19, 2020
(“DIB Initial DDE”). 	[AR at 130-37 (dkt. no. 5-4 at PageID.147-
54).] 	Exhibit 4A is the Disability Determination Explanation
for the DI claim at the Initial level, signed by Dr. Lau on
March 17, 2020 and by Chong on March 19, 2020 (“DI Initial
DDE”). 	[AR at 139-46 (dkt. no. 5-4 at PageID.156-63.]
Exhibit 6A is the Disability Determination Explanation for the
DIB claim at the Reconsideration level, signed by N. Shibuya,
M.D., on September 15, 2020 and by C. Lind (“Lind”) on
September 16, 2020 (“DIB Reconsideration DDE”). 	[AR at 148-55
(dkt. no. 5-4 at PageID.165-72).] 	Exhibit 8A is the (Disability
Determination Explanation for the DI claim at the
Reconsideration level, signed by Dr. Shibuya on September 15,
2020 and by Lind on September 16, 2020 (“DI Reconsideration
DDE”). 	[AR at 157-63 (dkt. no. 5-4 at PageID.174-80).]
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Dr. Lau noted that, because of “the absence of current objective
exams and lack of ADLs, ‘I/E’ appears to be a more accurate
determination at this time.” 	Exh. 2A (DI Initial DDE), AR at
135 (dkt. no. 5-4 at PageID.152); see also Exh. 6A (DI
Reconsideration DDE), AR at 152 (dkt. no. 5-4 at PageID.169)
(Dr. Shibuya noted: “At RECON stated no treatment. 	No response
to ADL. 	AOD 2-27-19 to current, Insuff Evid.”).
The ALJ apparently rejected all of the opinions by the
state agency consultants, including their RFC findings, because
they found insufficient evidence of a severe impairment. 	See
Decision, AR at 28 (dkt. no. 5-3 at PageID.44) (citing Exhs. 2A,
4A, 6A, 8A). 	The ALJ found that their findings of insufficient
evidence were
not well supported nor consistent with the test
results, exam findings, and other opinion
evidence, discussed in detail herein, including
findings of epilepsy (1F; 2F/6; 8F); right hip
hypertrophic changes of the pubic symphysis and
mild degenerative changes at the hip joints
(2F/11); right hip tenderness to palpation
anteriorly over buttock and greater trochanter,
right hip joint pain, and suspected bursitis from
extensive walking (2F/2-3).
[Id.] 	The ALJ found the opinions of neurologist Victoria S.
Wong, M.D., to be persuasive in part, stating:
Prior to the period at issue, on September 4,
2018, neurologist Victoria S. Wong, MD referenced
a discussion on swimming, surfing, water sports,
unprotected heights, power tools and other
dangerous equipment, cooking, hot surface, oil,
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boiling water, and driving (e.g., 1F/6, 10).[ 6 ]
The undersigned finds this opinion persuasive to
the extent in accord with the seizure precautions
herein; which are well supported, and consistent
with the claimant’s history of presumed perinatal
cerebral injury based on the above MRI findings,
left sided abnormalities on EMU admissions
(1F/6), and history of epilepsy (1F; 2F/6; 8F).
[Id.] 	The ALJ also relied on Dr. Wong’s exam findings to
support his finding that Dr. Pang’s opinions were not
persuasive.
[T]he record shows normal mental status exam
findings, namely, on September 4, 2018,
neurologist Victoria S. Wong, MD referenced a
remote May 1, 2012 brain MRI showing extensive
left posterior hemispheric encephalomalacia with
volume loss, but no acute intracranial
abnormality, and no evidence of hippocampal
sclerosis; and on exam, the claimant was alert
and oriented with appropriate fund of knowledge
for educational level (1F/6). 	During the period,
exam findings showed the claimant was
neurologically grossly intact, with appropriate
affect, and alert and oriented times three
(2F/5). 	The undersigned does not find Dr. Pang’s
opinion persuasive . . . .
[Id. at 24 (dkt. no. 5-3 at PageID.40).]
The ALJ found that, based on his RFC, Plaintiff was
incapable of returning to any of his past relevant work. 	[Id.
at 29 (dkt. no. 5-3 at PageID.45).]
6 Page 6 of Exhibit 1F is part of the Progress Notes by
Dr. Wong for Plaintiff’s September 4, 2018 visit. 	[Exh. 1
(Queen’s HIT Report) at 3-7, AR at 388-92 (dkt. no. 5-8 at
PageID.409-413).] 	Page 10 of Exhibit 1F is part of a Progress
Note by Dr. Wong for Plaintiff’s May 2, 2018 visit. 	[Id. at 7-
10, AR at 392-95 (dkt. no. 5-8 at PageID.413-16).]
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At step five, the ALJ noted that Plaintiff was in the
“closely approaching advanced age” category the alleged
disability onset date and, by the time of the Decision,
Plaintiff was in the “advanced age” category. 	[Id. at 30 (dkt.
no. 5-3 at PageID.46 (citing 20 CFR 404.1563, 416.963).]
Further, Plaintiff has at least a high school education. 	[Id.
(citing 20 CFR 404.1564, 416.964).] 	The Decision does not
address whether Plaintiff has transferable job skills because
the ALJ found that, using the Medical-Vocational Rules
framework, Plaintiff was “not disabled,” irrespective of the
transferable skills issue. 	[Id. (citing SSR 82-41; 20 CFR
Part 404, Subpart P, Appendix 2).] 	The ALJ found that, based on
Plaintiff’s age, education, work experience, and RFC, Plaintiff
could make a successful adjustment to the following jobs that
exist in significant number in the national economy: dining room
attendant, transporter, and warehouse worker. 	[Id. at 30-31
(dkt. no. 5-3 at PageID.46-47).] 	The ALJ therefore found that
Plaintiff was not under a disability from the alleged onset
date, February 27, 2019 to the date of the Decision. 	[Id. at 31
(dkt. no. 5-3 at PageID.47) (citing 20 CFR 404.1520(g),
416.920(g)).]
After requesting review of the ALJ’s Decision,
Plaintiff submitted: additional medical records from Queen’s,
dated September 4, 2018; medical records from Kaiser, from
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February 8, 2019 to August 7, 2020; and a letter from Reid
Hoshide, M.D., dated November 10, 2022. 	See AC Notice, AR at 2
(dkt. no. 5-3 at PageID.18); see also AR at 8-10 (dkt. no. 5-3
at PageID.24-26) (transmission from Plaintiff of Dr. Hoshide’s
letter); AR at 63-96 (dkt. no. 5-3 at PageID.79-112) (Kaiser
records); AR at 97-128 (dkt. no. 5-3 at PageID.113-44) (Queen’s
records). 	The Appeals Council found that the Queen’s records
and the Kaiser records “d[id] not show a reasonable probability
that it would change the outcome of the decision,” and the
Appeals Council ruled that Dr. Hoshide’s letter was irrelevant
to the period at issue in the ALJ’s Decision. 	[AC Notice, AR at
2 (dkt. no. 5-3 at PageID.18).]
As previously noted, the Appeals Council denied
Plaintiff’s request for review. 	This rendered the ALJ’s
Decision the Commissioner’s final decision. 	[AC Notice, AR at 1
(dkt. no. 5-3 at PageID.17).]
In the instant Appeal, Plaintiff argues the Decision
should be reversed because: the ALJ improperly rejected
Plaintiff’s testimony; the ALJ improperly rejected all of the
medical opinions; the ALJ improperly rejected Dr. Pang’s opinion
regarding the precautions needed because of Plaintiff’s
seizures. 	Further, the Appeals Council failed to properly
consider Dr. Hoshide’s opinion. 	Plaintiff argues these errors
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were not harmless, and he asks this Court to reverse the ALJ’s
Decision and remand the case. 	[Opening Brief at 1.]
STANDARDS
“A district court has jurisdiction pursuant to 42
U.S.C. § 405(g) to review final decisions of the Commissioner of
Social Security.” 	Concannon v. Saul, Civ. No. 19-00267-ACK-RT,
2020 WL 1492623, at *2 (D. Hawai`i Mar. 27, 2020), aff’d,
No. 20-15732, 2021 WL 2941767 (9th Cir. July 13, 2021).
I. 	Review of Social Security Decisions
“A district court has jurisdiction pursuant to 42
U.S.C. § 405(g) to review final decisions of the Commissioner of
Social Security.” 	Id.
The Ninth Circuit conducts a de novo review of a
district court’s order in a social security appeal. 	Treichler
v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir.
2014). 	Thus, in reviewing the Commissioner’s decision, this
Court applies the same standards that the Ninth Circuit applies.
A court will only disturb the Commissioner’s decision
if it is not supported by substantial evidence or if it is based
on legal error. 	Id. 	“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.” 	Hill v. Astrue, 698 F.3d 1153, 1159 (9th
Cir. 2012) (citation and internal quotation marks omitted). 	In
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reviewing a decision by the Commissioner, a district court must
consider the entire record as a whole. 	Id. 	Where the record,
considered as a whole, could support either affirmance or
reversal, the district court must affirm the decision. 	Attmore
v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016). 	To ensure a court
does not substitute its judgment for the ALJ’s, it must “‘leave
it to the ALJ to determine credibility, resolve conflicts in the
testimony, and resolve ambiguities in the record.’” 	Brown-
Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (quoting
Treichler, 775 F.3d at 1098).
II. 	Five-Step Analysis
The following analysis applies in cases involving
review of the denial of social security disability benefits.
To determine whether an individual is
disabled within the meaning of the Social
Security Act, and therefore eligible for
benefits, an ALJ follows a five-step sequential
evaluation. 	See 20 C.F.R. § 404.1520. 	The
burden of proof is on the claimant at steps one
through four. 	See Valentine v. Comm’r of Soc.
Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009).
At step one, the ALJ must determine if the
claimant is presently engaged in a “substantial
gainful activity,” § 404.1520(a)(4)(i), defined
as “work done for pay or profit that involves
significant mental or physical activities,” Lewis
v. Apfel, 236 F.3d 503, 515 (9th Cir. 2001)
(citing §§ 404.1571–404.1572, 416.971–416.975).
At step two, the ALJ decides whether the
claimant’s impairment or combination of
impairments is “severe,” § 404.1520(a)(4)(ii),
meaning that it significantly limits the
claimant’s “physical or mental ability to do
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basic work activities,” § 404.1522(a); see Webb
v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005).
At step three, the ALJ evaluates whether the
claimant has an impairment, or combination of
impairments, that meets or equals the criteria of
any of the impairments listed in the “Listing of
Impairments” (referred to as the “listings”).
See § 404.1520(a)(4)(iii); 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 individual from doing any
gainful activity.” 	§ 404.1525(a). 	Each
impairment is described in terms of “the
objective medical and other findings needed to
satisfy the criteria of that listing.”
§ 404.1525(c)(3). 	“For a claimant to show that
his impairment matches a listing, it must meet
all of the specified medical criteria. 	An
impairment that manifests only some of those
criteria, no matter how severely, does not
qualify.” 	Sullivan v. Zebley, 493 U.S. 521, 530,
110 S. Ct. 885, 107 L. Ed. 2d 967 (1990)
(footnote omitted).[ 7 ] 	If an impairment does not
meet a listing, it may nevertheless be “medically
equivalent to a listed impairment” if the
claimant’s “symptoms, signs, and laboratory
findings are at least equal in severity to” those
of a listed impairment. 	§ 404.1529(d)(3). 	But a
claimant cannot base a claim of equivalence on
symptoms alone. 	Even if the claimant alleges
pain or other symptoms that makes the impairment
more severe, the claimant’s impairment does not
medically equal a listed impairment unless the
claimant has signs and laboratory findings that
are equal in severity to those set forth in a
listing. 	§ 404.1529(d)(3). 	If a claimant’s
impairments meet or equal the criteria of a
listing, the claimant is considered disabled.
§ 404.1520(d).
If the claimant does not meet or equal a
listing, the ALJ proceeds to step four, where the
7 Sullivan has been superseded by statute on other grounds.
See, e.g., Kennedy v. Colvin, 738 F.3d 1172, 1174 (9th Cir.
2013).
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ALJ assesses the claimant’s residual functional
capacity (RFC) to determine whether the claimant
can perform past relevant work, § 404.1520(e),
which is defined as “work that [the claimant has]
done within the past 15 years, that was
substantial gainful activity, and that lasted
long enough for [the claimant] to learn to do
it,” § 404.1560(b)(1). 	If the ALJ determines,
based on the RFC, that the claimant can perform
past relevant work, the claimant is not disabled.
§ 404.1520(f).
At step five, the burden shifts to the
agency to prove that “the claimant can perform a
significant number of other jobs in the national
economy.” 	Thomas v. Barnhart, 278 F.3d 947, 955
(9th Cir. 2002). 	To meet this burden, the ALJ
may rely on the Medical-Vocational Guidelines
found at 20 C.F.R. Pt. 404 Subpt. P, App. 2,4 or
on the testimony of a vocational expert. 	Tackett
v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999).
“[A] vocational expert or specialist may offer
expert opinion testimony in response to a
hypothetical question about whether a person with
the physical and mental limitations imposed by
the claimant’s medical impairment(s) can meet the
demands of the claimant’s previous work, either
as the claimant actually performed it or as
generally performed in the national economy.”
§ 404.1560(b)(2). 	An ALJ may also use “other
resources, such as the ‘Dictionary of
Occupational Titles’ and its companion volumes
and supplements, published by the Department of
Labor.” 	Id.
Throughout the five-step evaluation, the ALJ
“is responsible for determining credibility,
resolving conflicts in medical testimony, and for
resolving ambiguities.” 	Andrews v. Shalala, 53
F.3d 1035, 1039 (9th Cir. 1995).
Ford v. Saul, 950 F.3d 1141, 1148–49 (9th Cir. 2020) (some
alterations in Ford) (footnotes omitted).
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DISCUSSION
This Court finds the issue of whether the ALJ erred in
finding that Plaintiff had the RFC to perform medium work
dispositive of the instant Appeal. 	See Decision, AR at 25 (dkt.
no. 5-3 at PageID.41) (citing 20 CFR 404.1567(c) and
416.967(c)). 	“Medium work involves lifting no more than 50
pounds at a time with frequent lifting or carrying of objects
weighing up to 25 pounds.” 	20 C.F.R. § 404.1567(c). 	Thus, this
Court will consider the issues raised in the Appeal while
focusing upon the effect that each issue has on the question of
whether Plaintiff is capable of performing medium work.
I. 	Whether It Was Error to Reject Plaintiff’s Testimony
Plaintiff testified that his welder/pipe fitter job
required him to lift more than fifty pounds, and he “was in fit
condition at that time.” 	[Hrg. Trans., AR at 45 (dkt. no. 5-3
at PageID.61).] 	However, he stopped working at that job in
2012. 	See Exh. 7D (Summary FICA Earnings for Years Requested),
AR at 250 (dkt. no. 5-6 at PageID.269); Exh. 8D (Detail Covered
FICA Earnings and Employer Name and Address for Years
Requested), at AR at 251-52 (dkt. no. 5-6 at PageID.270-71).
When asked to estimate what amount of weight he could
comfortably lift and carry, Plaintiff estimated “20, 25 pounds.”
[Hrg. Trans., AR at 53 (dkt. no. 5-3 at PageID.69).] 	The ALJ
noted this testimony in the Decision. 	See Decision, AR at 26
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(dkt. no. 5-3 at PageID.42). 	Plaintiff’s estimate was based on
his attempts to exercise because he found that he could “only
pick up one 20-pound dumbbells. 	Too much weight. 	Too heavy.”
[Hrg. Trans., AR at 53 (dkt. no. 5-3 at PageID.69).] 	He also
explained, “[t]hat’s too heavy, but you know, you put extra
weight on the hand, the bone come funny time.” 	[Id.]
The Ninth Circuit has stated:
To discredit a claimant’s symptom testimony when
the claimant has provided objective medical
evidence of the impairments which might
reasonably produce the symptoms or pain alleged
and there is no evidence of malingering, the ALJ
must give specific, clear, and convincing reasons
for rejecting the testimony by identifying which
testimony the ALJ found not credible and
explaining which evidence contradicted that
testimony.
Laborin v. Berryhill, 867 F.3d 1151, 1155 (9th Cir. 2017)
(brackets, citation, and internal quotation marks omitted).
Further, those reasons must be supported by substantial
evidence. 	Marsh v. Colvin, 792 F.3d 1170, 1174 n.2 (9th Cir.
2015). 	As previously noted, the ALJ found that Plaintiff’s
impairments could reasonably be expected to cause the symptoms
he described, but the record did not support his testimony about
the extent of his symptoms. 	[Decision, AR at 26 (dkt. no. 5-3
at PageID.42).] 	Because the ALJ did not make a finding that
Plaintiff was malingering, the ALJ was required to identify
specific, clear, and convincing reasons, supported by
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substantial evidence, why certain portions of Plaintiff’s
testimony were not credible.
The ALJ did not specifically address the credibility
of Plaintiff’s testimony that he could only lift and carry up to
twenty to twenty-five pounds. 	In fact, the ALJ appeared to rely
on this testimony in concluding that Plaintiff’s statements
about the limitations on his ability to walk, his pain levels,
and the frequency of his seizures were “not entirely consistent
with the medical evidence and other evidence in the record.”
See Decision, AR at 26 (dkt. no. 5-3 at PageID.42). 	The ALJ
found that Plaintiff’s
statements about the intensity, persistence, and
limiting effects of his . . . symptoms . . .
[were] inconsistent because despite [Plaintiff’s]
reported difficulty walking, driving, hip and
ankle pain, and frequency of seizures; he also
testified he can lift 20-25 pounds, walk about
half an hour to one hour before he starts walking
slow, and has to rest for only five minutes
before he can continue walking.
[Id. (emphasis added).] 	The ALJ also noted that Plaintiff takes
care of his family’s home, drives occasionally to go to doctor’s
appointments or to take his son to school, and he “worked at
near substantial gainful activity levels in 2019 and 2020.”
[Id.] 	However, none of these activities indicate that
Plaintiff’s testimony that he can only lift and carry up to
twenty to twenty-five pounds was not credible, nor do these
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activities indicate that Plaintiff is able to lift and carry up
to fifty pounds in a work setting.
As to the medical evidence supporting the rejection of
Plaintiff’s subjective testimony, the ALJ cited a number of
medical records, but the only one the ALJ cited that mentions
Plaintiff’s strength is a record of
September 2019 treatment notes [which] showed
right hip tenderness to palpation anteriorly over
buttock and greater trochanter, but full range of
motion, full 5/5 strength, and normal sensation
in the right lower extremity; the claimant was
assessed with right hip joint pain, with
suspected bursitis from extensive walking,
addressed with exercises, stretches, and self
reference to physical therapy (2F/2-3).
[Id.] 	Exhibit 2F, pages 2 through 4 are the notes by
Chantelle M. Castro, M.A., and Erin L. Hunt, M.D., for
Plaintiff’s September 28, 2019 visit to the Kaiser Moanalua
Clinic. 	[Exh. 2F (Kaiser HIT Report) at 2-4, AR at 403-05 (dkt.
no. 5-8 at PageID.424-26).] 	Dr. Hunt noted that Plaintiff
presented “for right hip pain that started after starting his
job as a janitor at Mililani shopping center. 	Sometimes feels
like hip is going to give out on hip. 	No numbness tingling or
weakness. 	Has some right low back pain and buttock pain.” 	[Id.
at 404 (dkt. no. 5-8 at PageID.425).] 	Dr. Hunt made the “5/5
strength” remark in the notes regarding Plaintiff’s
musculoskeletal examination during that visit. 	See id.
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A 5/5 strength rating is often described as “normal”
or “full” strength. 	See, e.g., Clark v. Kijakazi, No. 2:22-cv-
01336 AC, 2023 WL 6049890, at *5 (E.D. Cal. Sept. 15, 2023);
Javier v. Kijakazi, Civ. No. 21-00191 HG-WRP, 2022 WL 3275674,
at *4 (D. Hawai`i Aug. 11, 2022); Jason B. v. Comm’r of Soc.
Sec., CASE NO. C21-372-BAT, 2021 WL 3486718, at *3 (W.D. Wash.
Aug. 9, 2021). 	However, there is no indication in either the
record of this case or the applicable case law that “normal” or
“full” strength means capable of lifting and carrying up to
fifty pounds. 	Plaintiff was capable of lifting and carrying
fifty pounds when he worked as a welder/pipe fitter, but he was
in better physical condition at that time, and he had not worked
that job for seven years before his alleged onset date. 	See
Hrg. Trans, AR at 45 (dkt. no. 5-3 at PageID.61); Exh. 7D, AR at
250 (dkt. no. 5-6 at PageID.269); Exh. 8D, at AR at 251-52 (dkt.
no. 5-6 at PageID.270-71).
Case law supports the use of a 5/5 strength rating to
discount a social security claimant’s testimony, but only in
cases where the claimants asserted limitations that were more
extensive than being unable to lift fifty pounds. 	For example,
in Cecilia H.R. v. Kijakazi, the claimant asserted “she couldn’t
carry the trash because it was ‘too heavy’ and that she sat on a
chair in the shower and took breaks when she cooked because her
legs and feet were ‘too weak.[.]’” 	Case No. CV 20-7836-JPR,
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2022 WL 21320594, at *6 (C.D. Cal. Dec. 7, 2022) (citations
omitted). 	In ruling that the ALJ did not err in discounting the
claimant’s testimony, the district court noted that these
statements “were inconsistent with examination findings of
‘normal muscle tone and bulk without atrophy’ and ‘5/5’ strength
‘throughout, without focal motor deficits[.]’” 	Id. (some
citations omitted) (citing Anne T. v. Kijakazi, No. 1:20-CV-
3080-FVS, 2021 WL 4346228, at *8 (E.D. Wash. July 30, 2021)).
Because neither the 5/5 strength rating nor
Plaintiff’s activities indicate that he has the ability to lift
and carry more than twenty-five pounds, this Court finds that
the ALJ failed to provide specific, clear, and convincing
reasons, supported by substantial evidence, for rejecting
Plaintiff’s testimony that he was unable to lift or carry more
than twenty or twenty-five pounds.
II. 	Failure to Consider Medical Opinions
On June 25, 2021, Dr. Pang opined that Plaintiff was
capable of lifting and carrying ten pounds occasionally and
twenty pounds rarely. 	[Exh. 8F (Pang Statement) at 3, AR at 497
(dkt. no. 5-8 at PageID.518).] 	The ALJ found that Dr. Pang’s
opinions were
not persuasive since the limitations are not well
supported by specific objective findings during
the period at issue; instead, Dr. Pang references
a remote May 1, 2012 brain MRI showing extensive
left posterior hemispheric encephalomalacia with
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volume loss (1F/6). 	Additionally, Dr. Pang’s
limitations are not consistent with the test
results and exam findings during the period,
including February 2019 treatment notes showing
the last seizure was the year prior, and on exam,
normal extremities, no lower extremity edema
bilaterally, neurologically grossly intact, no
focal motor or sensory findings, appropriate
affect, and alert and oriented times three
(2F/5); July 2019 exam findings showed the
claimant was well developed and nourished, no
bruits, and normal cardiovascular, pulmonary,
abdominal, and musculoskeletal exam findings,
with no edema (3F/5; 5F/20);[ 8 ] and September 2019
treatment notes showing full range of motion,
full 5/5 strength, and normal sensation in the
right lower extremity (2F/2-3).
[Decision, AR at 28-29 (dkt. no. 5-3 at PageID.44-45).]
20 C.F.R. § 404.1520c, which governs claims filed on
or after March 27, 2017, states the Social Security
Administration
will not defer or give any specific evidentiary
weight, including controlling weight, to any
medical opinion(s) or prior administrative
medical finding(s), including those from your
medical sources. 	When a medical source provides
one or more medical opinions or prior
administrative medical findings, we will consider
those medical opinions or prior administrative
8 Exhibit 3F is the Health Information Technology (HIT)
Medical Report from Straub Medical Center (“Straub”) requested
for the period from February 27, 2018 to January 24, 2020
(“Straub HIT Report”). 	[AR at 420-48 (dkt. no. 5-8 at
PageID.441-69).] 	Pages 4 through 7 of Exhibit 3F are the
Progress Notes by Andrew W.Y. Dang, M.D., for Plaintiff’s July
15, 2019 visit. 	[AR at 423-26 (dkt. no. 5-8 at PageID.444-47).]
Exhibit 5F is the office treatment records for the Straub
Clinic and Hospital in Honolulu. 	[AR at 451-85 (dkt. no. 5-8 at
PageID.472-506).] 	Pages 19 through 23 of Exhibit 5F are the
Progress Notes by Dr. Dang for Plaintiff’s July 15, 2019 visit.
[AR at 469-73 (dkt. no. 5-8 at PageID.490-94).]
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medical findings from that medical source
together using the factors listed in paragraphs
(c)(1) through (c)(5) of this section, as
appropriate. 	The most important factors we
consider when we evaluate the persuasiveness of
medical opinions and prior administrative medical
findings are supportability (paragraph (c)(1) of
this section) and consistency (paragraph (c)(2)
of this section)).
20 C.F.R. § 404.1520c(a).
As to supportability, § 404.1520c(c)(1) states: “The
more relevant the objective medical evidence and supporting
explanations presented by a medical source are to support his or
her medical opinion(s) . . . , the more persuasive the medical
opinions . . . will be.” 	The Pang Statement does not cite any
medical records or evidence to support Dr. Pang’s opinions that
Plaintiff could never lift or carry a maximum of fifty pounds
and that Plaintiff could only rarely lift or carry a maximum of
twenty pounds. 	See Exh. 8F, AR at 498 (dkt. no. 5-8 at
PageID.519). 	Further, although Dr. Pang treated Plaintiff in
August 2020, December 2020, and June 2021, see id. at 497 (dkt.
no. 5-8 at PageID.518), there is no medical record from any of
those visits within the administrative record. 	According to the
Pang Statement, Dr. Pang is part of the Kaiser Permanente
Medical Center. 	See id. at 500 (dkt. no. 5-8 at PageID.521).
Exhibit 2F, the Kaiser HIT Report, only responds to a request
for records from February 27, 2018 to the date of the report’s
creation, January 24, 2020. 	See AR at 402 (dkt. no. 5-8 at
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PageID.423) (specifying dates); see generally Exh. 2F, AR at
402-19 (dkt. no. 5-8 at PageID.423-40). 9 	Therefore, the ALJ did
not err in finding that Dr. Pang’s opinions about Plaintiff’s
ability to lift and carry were not well-supported.
As to consistency, § 404.1520c(c)(2) states: “The more
consistent a medical opinion(s) . . . is with the evidence from
other medical sources and nonmedical sources in the claim, the
more persuasive the medical opinion(s) . . . will be.” 	The
medical evidence that the ALJ cited as inconsistent with
Dr. Pang’s opinions include the “5/5 strength” observation by
Dr. Hunt, discussed supra Section I, and other similar
observations. 	See Exh. 2F (Kaiser HIT Report) at 3, AR at 404
(dkt. no. 5-8 at PageID.425) (Dr. Hunt’s 9/28/19 Progress
Notes); see also Exh. 1F (Queen’s HIT Report) at 6, AR at 391
(dkt. no. 5-8 at PageID.412) (part of Dr. Wong’s 9/4/18 Progress
Notes stating: “Motor: R deltoid 4/5, R elbow flexion/extension
5/5, R grip strength 5-/5 (subtle asymmetry; he is left-handed),
otherwise 5/5 throughout on L and in RLE also.”); Exh. 2F at 5,
AR at 406 (dkt. no. 5-8 at PageID.427) (Dr. Hiles’s 2/11/19
Progress Notes stating, “extremities are normal”). 	As noted in
the context of the Plaintiff’s testimony, there is no indication
9 Even the additional Kaiser records that were presented to
the Appeals Council do not include records from Dr. Pang’s
treatment of Plaintiff. 	See AR at 63-96 (dkt. no. 5-3 at
PageID.79-112).
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whether a normal finding constitutes a finding that Plaintiff is
capable of lifting and carrying a maximum of fifty pounds. 	The
ALJ therefore erred in the consistency analysis of Dr. Pang’s
opinions regarding Plaintiff’s ability to lift and carry.
However, because the ALJ did not err in the
supportability analysis of Dr. Pang’s opinions regarding
Plaintiff’s ability to lift and carry, the ALJ did not err in
concluding that Dr. Pang’s opinions were not persuasive.
Plaintiff’s Appeal is denied as to the argument that the ALJ
failed to give proper consideration to Dr. Pang’s opinions
regarding Plaintiff’s ability to lift and carry.
III. Whether the Error Was Harmless
This Court has concluded that the ALJ erred by
rejecting Plaintiff’s subjective testimony that he unable to
lift and carry more than twenty or twenty-five pounds. 	The ALJ
included the ability to do medium work in Plaintiff’s RFC. 	See
Decision, AR at 25 (dkt. no. 5-3 at PageID.41). 	If the ALJ,
after a proper credibility assessment, had accepted Plaintiff’s
testimony that he can only lift and carry up to twenty or
twenty-five pounds, the ALJ would have been required to find
that Plaintiff was unable to do medium work. 	See 20 C.F.R.
§ 404.1567(c) (“Medium work involves lifting no more than 50
pounds at a time . . . .”). 	Plaintiff would therefore be unable
to perform the three occupations cited in the Decision, all of
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which are classified as medium work. 	See Decision, AR at 30-31
(dkt. no. 5-3 at PageID.46-47). 	The VE testified a hypothetical
worker, with the limitations included in Plaintiff’s RFC, who
could only perform light work, would be able to perform three
unskilled jobs - marker, mail clerk, and information clerk. 	See
Hrg. Trans., AR at 59-61 (dkt. no. 5-3 at PageID.75-77).
However, the Medical-Vocational Guidelines state:
for individuals of advanced age who can no longer
perform vocationally relevant past work and who
have a history of unskilled work experience, or
who have only skills that are not readily
transferable to a significant range of semi-
skilled or skilled work that is within the
individual’s functional capacity, or who have no
work experience, the limitations in vocational
adaptability represented by functional
restriction to light work warrant a finding of
disabled. 	Ordinarily, even a high school
education or more which was completed in the
remote past will have little positive impact on
effecting a vocational adjustment unless relevant
work experience reflects use of such education.
20 C.F.R. Pt. 404, Subpt. P, App. 2 at § 202.00(c) (emphasis
added). 	At the time of the hearing before the ALJ, Plaintiff
was an individual of advanced age who could no longer perform
his prior relevant work. 	See Decision, AR at 29-30 (dkt.
no. 5-3 at PageID.45-46). 	Thus, if the ALJ found that Plaintiff
was limited to light work, a finding of “disabled” would have
been required if Plaintiff’s skills were “not readily
transferable to a significant range of semi-skilled or skilled
work” within his RFC. 	See § 202.00(c).
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The ALJ did not address the issue of transferable
skills because the ALJ concluded that “using the Medical-
Vocational Rules as a framework supports a finding that the
claimant is ‘not disabled,’ whether or not the claimant has
transferable job skills.” 	See Decision, AR at 30 (dkt. no. 5-3
at PageID.46) (citing SSR 82-41; 20 CFR Part 404, Subpart P,
Appendix 2). 	While that may have been true based on a finding
that Plaintiff was capable of medium work, the transferable
skills analysis would have been necessary if, after proper
consideration of Plaintiff’s testimony, the ALJ found that
Plaintiff was only capable of light work. 	This Court therefore
finds that that the ALJ’s error in failing to give proper
consideration to Plaintiff’s testimony about the amount of
weight that he could lift and carry was not harmless. 	See
Treichler, 775 F.3d at 1099 (“An error is harmless if it is
‘inconsequential to the ultimate nondisability determination.’”
(quoting Alaska Dep’t of Envtl. Conserv. v. EPA, 540 U.S. 461,
497, 124 S. Ct. 983, 157 L. Ed. 2d 967 (2004))).
In light of this Court’s rulings, the ALJ’s ultimate
ruling that Plaintiff was not disabled was not supported by
substantial evidence. 	To the extent that Plaintiff’s Appeal
raises arguments which are not specifically addressed in this
Order, it is not necessary for this Court to reach those
arguments. 	This Court makes no findings or conclusions
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regarding those arguments. 	Plaintiff’s Appeal is granted
insofar as the ALJ’s Decision, including the ruling that
Plaintiff is not disabled, is reversed. 	The case is remanded to
the ALJ for further proceedings consistent with this Order.
CONCLUSION
For the foregoing reasons, Plaintiff’s appeal from the
Administrative Law Judge’s July 28, 2021 Decision is HEREBY
GRANTED IN PART AND DENIED IN PART. 	The Appeal is GRANTED,
insofar as the ALJ’s Decision is REVERSED as to the ALJ’s
rejection of Plaintiff’s subjective testimony about the amount
of weight Plaintiff is able to lift and carry. 	The Appeal is
DENIED as to Plaintiff’s argument asserting error in the ALJ’s
consideration of Dr. Pang’s opinions about Plaintiff’s ability
to lift and carry. 	This case is REMANDED to the ALJ for further
proceedings consistent with the instant Order.
There being no remaining issues in this case, the
Court DIRECTS the Clerk’s Office to enter judgment and close on
December 13, 2023, unless a timely motion for reconsideration of
the instant Order is filed.
IT IS SO ORDERED.
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DATED AT HONOULU, HAWAII, November 28, 2023.
BENJAMIN PANONCILLO VS. KILOLO KIJAKAZI, ACTING COMMISSIONER OF
SOCIAL SECURITY; CV 23-00120 LEK-WRP; ORDER: 	GRANTING IN PART
AND DENYING IN PART PLAINTIFF’S APPEAL; REVERSING THE
ADMINISTRATIVE LAW JUDGE’S DECISION; AND REMANDING THE CASE FOR
FURTHER PROCEEDINGS
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