Bokanoski v. Commissioner of Social Security Administration

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Nicole Bokanoski,
Plaintiff,
v.
Commissioner of Social Security
Administration,
Defendant.
No. CV-25-00462-TUC-JAS (JR)
REPORT & RECOMMENDATION
Plaintiff Nicole Bokanoski (“Bokanoski” or “Plaintiff”), pursuant to 42 U.S.C. §§
405(g) and 1383(c)(3), seeks judicial review of a final decision by the Commissioner of
the Social Security Administration (the “Commissioner”). (Doc. 1.) This matter, on referral
to the undersigned United States Magistrate Judge for Report and Recommendation, is ripe
for decision. (Docs. 13, 18, 19, 20, 21.) Plaintiff seeks remand for reconsideration of the
evidence and of her maximum residual functional capacity. (Doc. 19 at 19.) As set forth
below, the undersigned recommends that the district court dismiss the complaint.
BACKGROUND
Procedural Background
Plaintiff filed Title II and Title XVI applications for disability benefits on July 7,
2022, alleging an onset date of May 19, 2022. (AR 19.) Her claims were denied initially
on April 28, 2023, and upon reconsideration on March 8, 2024. (Id.) On October 8, 2024,
Plaintiff appeared telephonically for a hearing before ALJ Charles Davis (the “ALJ”). (Id.)
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The ALJ issued an unfavorable decision on November 7, 2024, finding that Plaintiff
retained the residual functional capacity (“RFC”) to perform light work as defined in 20
C.F.R. 404.1567(b) and 416.967(b). (AR 16, 25.) On January 6, 2025, Plaintiff filed a
Request for Review to the Appeals Council. (AR 9.) On July 10, 2025, the Appeals Council
denied review rendering the ALJ’s decision the final decision of the Commissioner for
purposes of judicial review under 42 U.S.C. § 405(g). (AR 1.)
Relevant Factual Background1
Bokanoski is a 28-year-old woman alleging disability due to Ehler’s Danlos
Syndrome Hypermobility Type (EDS), Postural Orthostatic Tachycardia Syndrome
(POTS), Irritable Bowel Syndrome (IBS), Myositis, Asthma, Chronic Fatigue Syndrome,
Anxiety, Chronic Migraines, Attention Deficit Hyperactivity Disorder (ADHD), and Post-
Concussion Syndrome. (Doc. 19 at 1.)
Bokanoski was born in 1997 and was 24 years old on the alleged onset date, making
her a younger individual according to the Social Security Administration (“SSA”).
§ 404.1563; (AR 27, 58.) She has not engaged in substantial gainful activity since the
alleged onset date. (AR 19.) She has at least a high school education. (AR 27, 242.) The
Plaintiff’s threshold for approval is less than sedentary. 20 CFR § 404 part P, App.2.
In Function Reports dated December 6, 2022 and June 6, 2023, Bokanoski reported
difficulty sitting or standing for very long without pain, difficulty writing or typing, and
dizziness that sometimes results in fainting. (AR 267-68, 295.) She emphasized that
chronic fatigue forced her to choose between working part time and taking care of herself
and her home because she doesn’t have enough energy for both. (AR 267, 304.) As a result,
she explained she required “at least one-two naps per day” and endorsed daytime fatigue
that forced her to divide tasks up in 5-to-10-minute increments throughout the day. (AR
268-69, 298-99.) She described unpredictable “flare ups” of her symptoms, including
irritable bowel syndrome, that could correlate with stress levels, but at other times would
occur “for no known reason.” (AR 271, 274, 301, 304.) Throughout both reports, she
1 The factual background is primarily taken from Plaintiff’s opening brief to which no
objection has been made.
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endorsed frequent migraines, distractibility and forgetfulness, and severe anxiety. (AR 267,
270, 272-74, 295, 301-03.)
Plaintiff’s medical records indicate recurring incidents of bloating, abdominal pain,
diarrhea, nausea, and vomiting since at least June of 2021, though the diarrheal symptoms
reportedly started ten years earlier. (See AR 489, 545, 623, 626, 629, 633, 635.) These
symptoms worsened to the point of experiencing fecal incontinence and were noted in
Banner Gastroenterology records to be “lifelong, waxing/waning clinical symptoms.” (AR
1404.) Plaintiff testified at hearing that IBS remained an active diagnosis that was “really
unpredictable.” (AR 45.) She noted her symptoms tended to be at their “worst in the
morning” or while “moving around a lot.” (AR 45.) She described an abrupt sense of fecal
urgency to get to the bathroom occurring at least once a week, though she did not always
make it in time. (AR 45-46.)
In May of 2022, she was experiencing dizziness and fainting twice a week because
of her POTS. (AR 719.) She continued to experience dizziness and syncope despite
medication compliance, reporting to her cardiologist that she had to stop working mid 2022
because symptoms had gotten so bad. (AR 723.) Over a year later, the dizzy episodes
continued at a stable frequency. (AR 1091.) Even after significant improvement with
prescription medication and Botox injections, Plaintiff reported at least 2-3 migraines per
month throughout the relevant period. (AR 679, 689, 694.) She testified at hearing that
using a computer increases the frequency of her migraines if she looks at the screen for
more than 30-60 minutes, and that her medications, both over the counter and prescription,
sometimes help and sometimes don’t help stop migraines. (AR 41, 43, 46.) During an
unsuccessful work attempt in early 2023, she reported to her neurologist that she was
“missing a lot of work due to her recurrent migraines,” endorsing “20+ headaches a
month.” (AR 107.)
Summary of the ALJ’s Decision
For the purposes of the Social Security Act, a claimant is disabled if she is unable
“to engage in any substantial gainful activity by reason of any medically determinable
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physical or mental impairment which can be expected to result in death or which has lasted
or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). To determine whether a claimant meets this definition, the ALJ employs a
five-step sequential evaluation. 20 C.F.R. § 404.1520(a); 20 C.F.R. § 416.920(a). The ALJ
considers: (1) whether the claimant is engaged in “substantial gainful activity”; (2) whether
the claimant has a “severe, medically determinable physical or mental impairment ... or a
combination of impairments that is severe” and that has lasted for more than 12 months;
(3) whether such impairment “meets or equals” one of the listings in the regulations; (4)
whether the claimant can still do his or her “past relevant work” given their residual
functional capacity (“RFC”); and (5) whether the claimant “can make an adjustment to
other work.” 20 C.F.R. § 404.1520(a)(4)(i)-(v); 20 C.F.R. § 416.920(a)(4)(i)-(v). The
burden of proof is on the claimant at steps one through four but shifts to the Commissioner
at step five. Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009).
Here, the ALJ applied the five-step sequential framework to determine that Plaintiff
is not disabled. (AR 19-27.) At step one, the ALJ found that Plaintiff’s work activity during
the relevant period was not substantial gainful activity. (AR 19.)
At step two, the ALJ found Plaintiff had the following severe impairments: Ehlers-
Danlos syndrome and occipital neuralgia. (AR 20.) The ALJ also found that chronic
fatigue syndrome was not a medically determinable impairment. (AR 20.) The ALJ further
found that POTS, IBS, anxiety, depression, and ADHD did not cause work-related
limitations and were therefore not severe impairments. (AR 20-22.)
At step three, the ALJ found that Plaintiff’s impairments did not meet or equal any
of the disabling impairments listed in the Commissioner’s regulations. (AR 22.) Before
proceeding to step four, the ALJ found that Plaintiff had the RFC to perform light work as
defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except she could never climb ladders,
ropes, or scaffolds; could occasionally balance, stoop, kneel, crouch, crawl, and climb
ramps or stairs; and needed to avoid all exposure to hazards (e.g., machinery, heights, etc.).
(AR 23.)
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At step four, the ALJ found that Plaintiff could perform her past relevant work as a
park ranger or a customer service representative. (AR 26.)
As an alternative step five findings, in accordance with vocational testimony, the
ALJ found that Plaintiff was able to work in occupations that offered a significant number
of jobs in the national economy. (AR 27-28.) Therefore, the ALJ found that Plaintiff was
not disabled. (AR 27.)
STANDARD OF REVIEW
This Court reviews only those issues raised by the party challenging the ALJ's
decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). In reviewing the
decision of the ALJ, the Court will not overturn the ALJ's decision “unless it is either not
supported by substantial evidence or is based upon legal error.” Luther v. Berryhill, 891
F.3d 872, 875 (9th Cir. 2018). “Substantial” evidence means “more than a mere scintilla,”
but it is “less than a preponderance.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007)
(internal citation omitted). That is, “substantial evidence” is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Burch v. Barnhart,
400 F.3d 676, 679 (9th Cir. 2005) (internal citation omitted). In determining whether
substantial evidence supports the ALJ's decision, the Court considers “the administrative
record as a whole, weighing both the evidence that supports and the evidence that detracts
from the” ALJ's conclusions. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). “If the
evidence can reasonably support either affirming or reversing the Secretary's conclusion,
the court may not substitute its judgment for that of the Secretary.” Id. at 720-21. The
“court must consider the entire record as a whole and may not affirm simply by isolating a
specific quantum of supporting evidence.” Orn, 495 F.3d at 630 (internal quotations and
citations omitted). The Court reviews “only the reasons provided by the ALJ in the
disability determination and may not affirm the ALJ on a ground upon which he did not
rely.” Id.
//
//
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ISSUE ON REVIEW
Plaintiff raises one issue for review: whether the ALJ’s evaluation of Plaintiff’s RFC
is supported by substantial evidence because it ignored key symptoms of her severe
medically determinable impairments. (Doc. 19 at 4.)
ANALYSIS
I. Substantial evidence supports the ALJ’s RFC determination.
Here, Plaintiff asserts that because the ALJ did not consider all key symptoms
related to her EDS, his RFC determination is not supported by substantial evidence. (Doc.
19 at 9-12.) Plaintiff argues that because the ALJ’s RFC evaluation does not adequately
address her ability to undertake sustained work activity nor comport with certain regulatory
requirements it is therefore not supported by substantial evidence. (Id. at 10 (citing
Reddick, 157 F.3d at 724).)
First, Plaintiff alleges the ALJ did not adequately determine Plaintiff’s RFC because
he did not analyze the “maximum degree to which [Plaintiff] retains the capacity for
sustained performance of the physical-mental requirements of jobs.” (Doc. 19 at 9-10
(quoting 20 C.F.R. 404, Subpt. P, App. 2 § 200.00(c)).)
As to Plaintiff’s capacity to maintain sustained work, the ALJ reasoned:
Although the risk of additional musculoskeletal injury would
likely preclude the claimant from engaging in exertional
activity beyond what is typically expected of light work (see
also 20F/8), the irregularity with which she experiences
injuries subsequent to hypermobility as well as the speedy
improvement achieved with conservative treatment methods
alone support a residual capacity for some prolonged
exertional activity.
(AR 24.) This determination is supported by substantial evidence. (See AR 1051 (March
2023 ankle pain “relieved by mobility and [over the counter] medicines”), AR 1061 (May
2023 moderate knee pain “relieved by brace/splint and [over the counter] medicines”), AR
1167 (denied pain in June 2023 when returning to treating clinic), AR 1502 (January 2024
acute back pain treated with Tylenol, heat, and stretches), AR 1435 (July 2024 knee injury
treated with OTC medication), AR 1463 (denied pain in August 2024 when visiting clinic).
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An improvement of symptoms with conservative treatment, as here, is a valid reason to
discount Plaintiff’s allegations, even where the evidence can be interpreted in different
ways. Baca v. Comm’r Soc. Sec. Admin., 2021 WL 1827232, at *6 (D. Ariz. May 7, 2021)
(citing Tommasetti v. Astrue, 533 F.3d 1025, 1039-40 (9th Cir. 2008)).
The ALJ further reasoned:
[D]espite her providers frequent advice to engage in regular
exercise (e.g., 1F/2; 8F/21; 20F/8), and despite her having
learned and seen symptomatic improvement with home
exercises through physical therapy (see 17F), the claimant
admitted during her hearing testimony that she does not
exercise beyond occasional, short walks. Considering the
totality of circumstances, the undersigned concludes that the
claimants EDS does not present functional limitations on a
constant basis.
(AR 24.) An ALJ can discount testimony if, as here, there is an “unexplained or
inadequately explained failure to seek treatment or to follow a prescribed course of
treatment.” See Silva v. Comm’r Soc. Sec. Admin., 2018 WL 3342898, at *6 (July 9, 2018)
(citing Tommasetti, 533 F.3d at 1039).
Relying on Reddick, Plaintiff argues that the ALJ violated Social Security Ruling
(“SSR”) 88-13. (Doc. 19 at 10.) This argument is inapposite. The court in Reddick found
the ALJ there erred by relying on SSR 88-13 and by mischaracterizing that claimant’s case
as an “excessive pain” case. Reddick, 157 F.3d at 727. To the extent Plaintiff is arguing the
ALJ here erred by focusing only on musculoskeletal symptoms, and did not consider non-
exertional limitations, that is assertion is incorrect. Here, the record reflects that the ALJ
considered numerous other symptoms, including fatigue, ADHD, and myositis, (AR 20-
24), and found those impairments either not medially determinable or not serious (AR 20).
But, notably, the Plaintiff does not challenge these determinations in her opening brief, and
thus any such arguments are deemed waived. See Avenetti v. Barnhart, 456 F.3d 1122,
1124-25 (9th Cir. 2006) (holding that potential arguments not raised in opening briefing
are waived).
Plaintiff also argues that the ALJ did not consider the Program Operations Manual
System (“POMS”) guidelines 02410.004. (Doc. 19 at 10-11.). As explained by the Ninth
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Circuit in Carillo-Years v. Astrue:
POMS may be “entitled to respect” under Skidmore v. Swift &
Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944), to the
extent it provides a persuasive interpretation of an ambiguous
regulation, see Christensen v. Harris Cnty., 529 U.S. 576, 587–
88, 120 S.Ct. 1655, 146 L.Ed.2d 621 (2000), but it “does not
impose judicially enforceable duties on either this court or the
ALJ.” Lockwood v. Comm'r Soc. Sec. Admin., 616 F.3d 1068,
1073 (9th Cir.2010) (citing Lowry v. Barnhart, 329 F.3d 1019,
1023 (9th Cir.2003)) (holding that ALJ was not required to
explain decision to use claimant's actual age for purposes of
determining whether claimant could work, where regulation
only required ALJ to consider using older age category); see
also Moore v. Apfel, 216 F.3d 864, 868–69 (9th Cir.2000)
(declining to review allegations of noncompliance with
internal agency manual because such a manual “does not carry
the force and effect of law.”).
671 F.3d 731, 375 (9th Cir. 2011).
Next, Plaintiff requests the Court extend the ruling of Garrison v. Colvin, 759 F.3d
995 (9th Cir. 2014), to physical as well as mental health symptoms. (Doc. 19 at 11.) In
Garrison, the Ninth Circuit held “it is error to reject a claimant’s testimony merely because
symptoms wax and wane in the course of treatment.” 759 F.3d at 1017 (emphasis added).
However, as summarized by the ALJ:
[D]espite her providers frequent advice to engage in regular
exercise (e.g., 1F/2; 8F/21; 20F/8), and despite her having
learned and seen symptomatic improvement with home
exercises through physical therapy (see 17F), the claimant
admitted during her hearing testimony that she does not
exercise beyond occasional, short walks. Considering the
totality of circumstances, the undersigned concludes that the
claimants EDS does not present functional limitations on a
constant basis.
(AR 24.) Thus, even if this Court were to extend Garrison’s holding, that an ALJ may not
reject Plaintiff’s testimony for the sole reason that her symptoms “waxed and waned,” here
the ALJ also appropriately discounted Plaintiff’s testimony due her failure to pursue
beneficial and recommended physical therapy. See Silva, 2018 WL 3342898, at *6 (July 9,
2018) (citing Tommasetti, 533 F.3d at 1039) (affirming that a claimant’s poorly explained
failure to pursue beneficial and recommended physical exercise is a valid reason for
discounting her pain complaints).
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Accordingly, the undersigned finds that the ALJ did not err in his RFC
determination and recommends the District Court dismiss the Plaintiff’s Complaint.
RECOMMENDATION
For the foregoing reasons, it is RECOMMENDED that the district court DISMISS
the complaint with prejudice. Pursuant to Federal Rule of Civil Procedure 72(b)(2), any
party may serve and file written objections within fourteen days of being served with a
copy of the Report and Recommendation. A party may respond to the other party’s
objections within fourteen days. No reply brief shall be filed on objections unless leave is
granted by the district court. If objections are not timely filed, they may be deemed waived.
If objections are filed, the parties should use the following case number: 4:25-cv-462-JAS.
Dated this 16th day of June, 2026.
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