Kerry Allen Johnson v. ANDREW M. SAUL, Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KERRY ALLEN JOHNSON,
Plaintiff-Appellant,
v.
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant-Appellee.
No. 20-35038
D.C. No. 3:18-cv-01152-MC
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Argued and Submitted March 3, 2021
Portland, Oregon
Before: PAEZ and WATFORD, Circuit Judges, and TUNHEIM,** District Judge.
Kerry Johnson appeals from the district court’s order affirming the
administrative law judge’s decision denying his application for disability insurance
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
FILED
MAR 12 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401–34. We
reverse and remand for further proceedings.
1. The administrative law judge (ALJ) erred at step 2 in concluding that
Johnson’s alleged carpal tunnel syndrome (CTS) and shoulder pain were not
medically determinable impairments. The ALJ reasoned that Johnson lacked a
diagnosis and laboratory tests verifying these conditions, and that Johnson had not
sought treatment for CTS from a healthcare provider. In our view, however, the
medical opinion of Dr. Nicholas Branting, an examining physician, provided the
“objective medical evidence from an acceptable medical source” necessary to
establish a medically determinable impairment. 20 C.F.R. § 404.1521.
Dr. Branting provided the sole report from an examining physician in the
record. With regard to the alleged CTS, Dr. Branting observed that Johnson had
difficulty gripping small objects and had decreased sensation to touch. He noted a
positive Tinel’s test and a positive Phalen’s test, both with numbness and pain in
two fingers. With regard to the alleged shoulder pain, Dr. Branting observed a
limited range of motion in the shoulder joints. In the “Diagnoses” section of his
report, Dr. Branting concluded that Johnson “likely has bilateral carpal tunnel
syndrome and likely has some mild degenerative joint disease of the bilateral
glenohumeral joints.”

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The ALJ concluded that this report failed to provide a diagnosis of CTS and
bilateral glenohumeral degenerative joint disease. We disagree. That Dr. Branting
initially described these diagnoses as “likely” does not disqualify them as
diagnoses provided by an acceptable medical source, see 20 C.F.R. § 404.1521,
especially given that he later cited these diagnoses without qualification in
justifying his recommended functional limitations.
Our decision in Ukolov v. Barnhart, 420 F.3d 1002 (9th Cir. 2005), does not
undermine this conclusion. In that case, the physician’s notes stated that she had
“not been able to establish a definite [] diagnosis” and there was little objective
medical evidence in the record. See id. at 1004–06. Here, in addition to providing
what he termed a “diagnosis,” Dr. Branting performed at least two medical tests
(the Tinel’s and Phalen’s tests) and recorded medical “signs” consistent with CTS.
See 20 C.F.R. § 404.1502(g) (defining “signs”). He likewise observed medical
signs consistent with shoulder pain, and neither diagnosis relied solely on
Johnson’s self-reported symptoms. That is sufficient to provide the objective
medical evidence from an acceptable medical source necessary to conclude that an
impairment is medically determinable, and SSR 96-4p did not require more. See
20 C.F.R. § 404.1502(f) (defining “objective medical evidence” as “signs,
laboratory findings, or both”); id. § 404.1521; see also SSR 96-4p, 1996 WL
374187, at *1–2 (July 2, 1996) (emphasizing that symptoms alone cannot establish

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an impairment and reiterating that an impairment is based on objective medical
evidence).
The ALJ’s observation that Johnson failed to seek treatment for his CTS
does not provide an adequate basis for rejecting Dr. Branting’s diagnosis. While a
failure to seek treatment may be relevant in assessing a claimant’s application for
disability, an ALJ cannot deny benefits because of the claimant’s inability to afford
treatment. See Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007). Although
Johnson did not explicitly cite his inability to pay as a reason he did not seek
treatment, he stated that he did not have medical insurance and therefore had to pay
out-of-pocket for medical care, and he repeatedly emphasized his limited financial
resources in his function report. This calls into question the propriety of the ALJ’s
reliance on Johnson’s lack of treatment in evaluating Dr. Branting’s opinion. In
any event, the lack of evidence of treatment in the record is not, on its own,
sufficient to provide the “clear and convincing” reasons required to reject the
opinion of an examining physician. See Lester v. Chater, 81 F.3d 821, 830–31 (9th
Cir. 1995).
2. The ALJ also erred in giving little weight to the opinions of Dr. Branting
and the two reviewing physicians in assessing Johnson’s residual functional
capacity (RFC). The doctors unanimously concluded that Johnson is limited to
performing only light exertional work. See 20 C.F.R. § 404.1567(b) (defining

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“light work” as “lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds,” which is consistent with Dr.
Branting’s recommended limitations on carrying and lifting). The ALJ rejected
Dr. Branting’s opinion because it was based on an impairment that the ALJ had
found non-medically determinable. As discussed above, however, the ALJ was
wrong to conclude that the CTS and shoulder pain were not medically
determinable impairments. The ALJ’s error at step 2 similarly undermined his
rejection of the reviewing physicians’ recommended limitations on the basis that
those reports relied on Dr. Branting’s report. Since Dr. Branting’s report was not
flawed in the way the ALJ suggested, the ALJ could not justify rejecting the
reviewing physicians’ reports for this reason.
The ALJ also found that all three doctors’ opinions were not supported by
the “relatively weak objective evidence” in the record and were inconsistent with
the lack of significant treatment. These do not constitute “clear and convincing”
reasons to reject Dr. Branting’s opinion, especially since there is reason to question
whether the ALJ properly considered the lack of treatment in the record. See
Lester, 81 F.3d at 830–31. Accordingly, the ALJ’s rejection of the doctors’
unanimous recommended limitation to light work is not supported by substantial
evidence.

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3. We cannot declare these errors harmless because they were not
“inconsequential” to the ultimate disability determination. See Stout v. Comm’r,
Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). Although the ALJ did
include some limitations in the RFC that accounted for Johnson’s CTS and
shoulder pain, the ALJ improperly rejected the recommended limitation that would
have had the greatest impact on Johnson’s RFC: the limitation to light work. Since
the record is relatively sparse and questions remain about (among other things) the
onset date of Johnson’s alleged disability, we remand for further proceedings. See
Dominguez v. Colvin, 808 F.3d 403, 407, 409–10 (9th Cir. 2015).
REVERSED and REMANDED.

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