Tuiofu v. Saul

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
LISE T.,1
Plaintiff,
vs.
ANDREW SAUL,
Commissioner of Social Security,
Defendant. 	Case No. 3:19-cv-00187-TMB
DECISION AND ORDER
On or about October 3, 2017, Lise T. filed an application for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the
Social Security Act (“the Act”) respectively,2 alleging disability beginning September 9,
2017.3 Ms. T. has exhausted her administrative remedies and filed a Complaint seeking
relief from this Court.4 	On October 28, 2019, Ms. T. filed an opening brief.5 	The
Commissioner filed an Answer and a brief in opposition to Ms. T.’s opening brief.6 Ms. T.
1 The Plaintiff’s name is partially redacted in compliance with Federal Rule of Civil Procedure
5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case
Management of the Judicial Conference of the United States. See Memorandum, Committee on
Court Administration and Case Management of the Judicial Conference of the United States (May
1, 2018), available https://www.uscourts.gov/sites/default/files/18-cv-l-suggestion_cacm_0.pdf.
2 The Court uses the term “disability benefits” to include both DIB and SSI.
3 Administrative Record (“A.R.”) 151, 158. The ALJ’s decision cites October 2, 2017 as Lise T.’s
application date. A.R. 14.
4 Docket 1 (Compl.).
5 Docket 14 (Lise T.’s Opening Br.).
6 Docket 10 (Answer); Docket 19 (Def.’s Br.).
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filed a reply brief on December 31, 2019.7 Oral argument was not requested and was not
necessary to the Court’s decision. This Court has jurisdiction to hear an appeal from a
final decision of the Commissioner of Social Security.8 For the reasons set forth below,
Ms. T.’s request for relief will be granted in part.
I. 	STANDARD OF REVIEW
A decision by the Commissioner to deny disability benefits will not be overturned
unless it is either not supported by substantial evidence or is based upon legal error.9
“Substantial evidence” has been defined by the United States Supreme Court as “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.”10 Such evidence must be “more than a mere scintilla,” but may be “less than
a preponderance.”11 	In reviewing the agency’s determination, the Court considers the
evidence in its entirety, weighing both the evidence that supports and that which detracts
from the administrative law judge (“ALJ”)’s conclusion.12 If the evidence is susceptible to
more than one rational interpretation, the ALJ’s conclusion must be upheld.13 A reviewing
7 Docket 20 (Reply).
8 42 U.S.C. § 405(g).
9 Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citing Gonzalez v.
Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990)).
10 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).
11 Perales, 402 U.S. at 401; Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975)
(per curiam).
12 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
13 Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citing Rhinehart v. Finch, 438 F.2d 920,
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court may only consider 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.”14 An ALJ’s decision
will not be reversed if it is based on “harmless error,” meaning that the error “is
inconsequential to the ultimate nondisability determination . . . or that, despite the legal
error, ‘the agency’s path may reasonably be discerned, even if the agency explains its
decision with less than ideal clarity.’”15
II. 	DETERMINING DISABILITY
The Act provides for the payment of disability insurance to individuals who have
contributed to the Social Security program and who suffer from a physical or mental
disability.16 In addition, SSI may be available to individuals who are age 65 or older, blind,
or disabled, but who do not have insured status under the Act.17 Disability is defined in
the Act as follows:
[I]nability to engage in any substantial gainful activity by reason of any
medically 	determinable 	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.18
The Act further provides:
921 (9th Cir. 1971)).
14 Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).
15 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations
omitted).
16 42 U.S.C. § 423(a).
17 42 U.S.C. § 1381a.
18 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
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An individual shall be determined to be under a disability only if his physical
or mental impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial gainful work
which exists in the national economy, regardless of whether such work
exists in the immediate area in which he lives, or whether a specific job
vacancy exists for him, or whether he would be hired if he applied for work.
For purposes of the preceding sentence (with respect to any individual),
“work which exists in the national economy” means work which exists in
significant numbers either in the region where such individual lives or in
several regions of the country.19
The Commissioner has established a five-step process for determining disability
within the meaning of the Act.20 A claimant bears the burden of proof at steps one through
four in order to make a prima facie showing of disability.21 	If a claimant establishes a
prima facie case, the burden of proof then shifts to the agency at step five.22 	The
Commissioner can meet this burden in two ways: “(a) by the testimony of a vocational
expert (“VE”), or (b) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt.
404, subpt. P, app. 2.”23 The steps, and the ALJ’s findings in this case, are as follows:
Step 1. Determine whether the claimant is involved in “substantial gainful activity.”
The ALJ found that Ms. T. had not engaged in substantial gainful activity since her alleged
onset date of September 9, 2017.24
19 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
20 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
21 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1096 n.1 (9th Cir. 2014) (quoting
Hoopai v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007)); see also Tackett v. Apfel, 180 F.3d
1094, 1098 (9th Cir. 1999).
22 Treichler, 775 F.3d at 1096 n.1; Tackett, 180 F.3d at 1098 (emphasis in original).
23 Tackett, 180 F.3d at 1101.
24 A.R. 16.
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Step 2. 	Determine whether the claimant has a medically severe impairment or
combination of impairments. A severe impairment significantly limits a claimant’s physical
or mental ability to do basic work activities and does not consider age, education, or work
experience. 	The severe impairment or combination of impairments must satisfy the
twelve-month duration requirement. 	The ALJ determined that Ms. T. had the following
severe impairments: type 2 diabetes mellitus; coronary artery disease status post CABG;
cardiomyopathy; and obesity. The ALJ found that Ms. T.’s hypertension and renal failure
were not severe impairments.25
Step 3. Determine whether the impairment or combination of impairments meets
or equals the severity of any of the listed impairments found in 20 C.F.R. pt. 404, subpt.
P, app.1, precluding substantial gainful activity. If the impairment(s) is/are the equivalent
of any of the listed impairments, and meet(s) the duration requirement, the claimant is
conclusively presumed to be disabled. 	If not, the evaluation goes on to the fourth
step. 	The ALJ determined that Ms. T. did not have an impairment or combination of
impairments that met or medically equaled the severity of a listed impairment.26
Before proceeding to step four, a claimant’s residual functional capacity (“RFC”) is
assessed. Once determined, the RFC is used at both step four and step five. An RFC
assessment is a determination of what a claimant is able to do on a sustained basis
despite 	the 	limitations 	from 	her 	impairments, 	including 	impairments 	that 	are 	not
25 A.R. 16–17.
26 A.R. 17.
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severe.27 The ALJ concluded that Ms. T. had the RFC to perform sedentary work with
the following limitations: occasional climbing of ramps and stairs; occasional stooping,
kneeling, crouching, and crawling; no climbing of ladders, ropes, or scaffolding; avoidance
of concentrated exposure to non-weather related extreme heat, fumes, odors, dust, and
poorly ventilated areas; avoidance of concentrated exposure to unprotected heights and
hazardous machinery; and avoidance of moderate exposure to non-weather related
extreme cold.28
Step 4. 	Determine whether the claimant is capable of performing past relevant
work. 	At this point, the analysis considers whether past relevant work requires the
performance of work-related activities that are precluded by the claimant’s RFC. 	If the
claimant 	can 	still 	do 	her 	past 	relevant 	work, 	the 	claimant 	is 	deemed 	not 	to 	be
disabled. Otherwise, the evaluation process moves to the fifth and final step. The ALJ
found that Ms. T. was not capable of performing any past relevant work.29
Step 5. 	Determine whether the claimant is able to perform other work in the
national economy in view of her age, education, and work experience, and in light of the
RFC. If so, the claimant is not disabled. If not, the claimant is considered disabled.
27 20 C.F.R. § 404.1520(a)(4), 416.920(a)(4).
28 A.R. 18–19.
29 A.R. 24.
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The ALJ determined that there were jobs that existed in the national economy that Ms. T.
could perform, including the following: call out operator; surveillance systems monitor;
and table worker.30
Based on the foregoing, the ALJ concluded that Ms. T. was not disabled from
September 9, 2017, the alleged onset date, through March 7, 2019, the date of the
decision.31
III. PROCEDURAL AND FACTUAL BACKGROUND
Ms. T. was born in 1982; she is currently 37 years old.32 She reported last working
as a cashier, stocker, and cleaner at Brown Jug in August 2017. In the past, Ms. T. also
reported working at Tesoro gas station as a cashier and stocker; at Carr’s safeway as a
cashier, cook, deli worker, and cleaner; at Subway making sandwiches; at Hula Hand’s
restaurant as a waitress and cook; and at DGS fleet services cleaning aircraft.33 Ms. T.
initiated her applications for disability benefits on or about October 3, 2017.34 On March
27, 2018, the SSA field office found that Ms. T. was not disabled.35 	On May 31, 2018,
Ms. T. filed a request for hearing.36 On February 1, 2019, Ms. T. appeared and testified
30 A.R. 25.
31 A.R. 25–26.
32 A.R. 151, 158.
33 A.R. 49–55, 213, 216.
34 A.R. 151, 158; supra note 3.
35 A.R. 84.
36 A.R. 92.
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without representation in a hearing before ALJ Paul Hebda.37 	The ALJ issued an
unfavorable ruling on March 7, 2019.38 The Appeals Council denied Ms. T.’s request for
review on June 5, 2019.39 	On June 29, 2019, Ms. T. appealed to this Court; she is
represented by counsel in this appeal.40
The Medical Record
Although the Court is focused on the relevant medical records after Ms. T.’s alleged
onset date, the following are the relevant records before September 9, 2017:
On April 19, 2017, Ms. T. established care with Alex Alonso, PA-C, at Anchorage
Neighborhood Health Center. 	She reported abdominal pain and dysuria. 	She also
reported not taking her diabetes mellitus medications “since November 2016.” 	On
examination, Ms. T.’s hemoglobin A1c test was 10.1. 	PA Alonso noted that Ms. T. was
noncompliant with her diabetes mellitus medications and prescribed Metformin and
Glipizide.41
On June 5, 2017, Ms. T. presented to the emergency department at Alaska
Regional Hospital. 	She reported moderate chest pain with shortness of breath and
lightheadedness. She reported intermittent chest pain from midsternum to left shoulder
that began one week prior. 	Ms. T. had an abnormal ECG. 	The attending physician
37 A.R. 37–40, 44–55.
38 A.R. 11–26.
39 A.R. 1–6.
40 Docket 1, 14.
41 A.R. 349–51.
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considered the following diagnoses: 	cardiac ischemia, pericarditis, chest wall strain,
pulmonary embolism (PE), anxiety, stress reaction, esophagitis, and thoracic aortic
dissection, but also noted that “[n]o emergency medical condition is identified.”42
After the alleged onset date of September 9, 2017, the more relevant medical
records are as follows:43
On September 17, 2017, Ms. T. presented to the emergency department at Alaska
Regional Hospital. 	She reported sharp, aching, constant chest pain with shortness of
breath, abdominal pain, cough, subjective fever, chills, and leg swelling. 	On physical
examination, her blood pressure was 141/92. The echocardiogram showed a “[s]everely
decreased LV ejection fraction” estimated 15-20%; severe global hypokinesis; and severe
left ventricular diastolic dysfunction. The treating physician assessed Ms. T. with acute,
systolic and diastolic congestive heart failure; dilated cardiomyopathy “[m]ost likely
nonischemic”; chest discomfort; prediabetes mellitus; tobacco use; and elevated troponin
level. In the emergency room, she was given Lovenox, Lasix, aspirin, and was “started
on nitroglycerin to lower her blood pressure.” She was diuresed and lost 14 pounds. The
chest x-ray showed “[m]ild cardiomegaly and prominence of pulmonary vasculature and
mild diffuse reticular opacities suggestive of early congestive failure and developing lung
42 A.R. 373–84.
43 The Court notes that the administrative record contains multiple copies of medical records. To
the extent possible, the Court will use the medical record that first appears in the administrative
record.
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edema. 	Correlate 	clinically 	as 	viral 	or 	atypical 	pneumonia 	may 	have 	a 	similar
appearance.”44
On September 25, 2017, Ms. T. saw Mario Binder, M.D., at Alaska Heart & Vascular
Institute. 	On physical examination, Ms. T.’s blood pressure was 102/72. 	Dr. Binder
diagnosed Ms. T. with combined systolic and diastolic heart failure; tobacco use; diabetes
mellitus, type 2; and dilated cardiomyopathy.45
On September 28, 2017, Ms. T. initiated care with Wendy Sanders, M.D., at
Anchorage Neighborhood Health Center. 	She reported burning foot pain. 	On physical
examination, Dr. Sanders observed that Ms. T.’s blood pressure was “acceptable” with no
tachycardia; she had a saturated oxygen level of 94% “after walking”; a cardiac exam with
normal rate and rhythm; mild peripheral edema; and reported decreased sensation in the
feet and ankles bilaterally and symmetrically. Dr. Sanders noted that Ms. T. was a prior
patient at Anchorage Neighborhood Health Center, but had had no recent evaluations or
follow-up, and had missed multiple previous appointments. 	She assessed Ms. T. with
“long-standing severely uncontrolled diabetes, hypertension, hyperlipidemia” and acute
severe diastolic and systolic renal failure, dilated cardiomyopathy, elevated troponin
associated 	with 	demand 	mismatch, 	tobacco 	use, 	obesity, 	deconditioning, 	renal
insufficiency, chronic pain syndrome; and narcotics contraindicated with congestive heart
failure. Dr. Sanders noted that Ms. T. was “not cleared to work due to medical illness.”46
44 A.R. 230–52.
45 A.R. 330–34. Ms. T. followed up with Dr. Binder again on September 27, 2017. A.R. 324–29.
46 A.R. 341–45.
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On October 11, 2017, Ms. T. saw Dr. Sanders. 	On physical examination, Dr.
Sanders observed acceptable blood pressure, a normal cardiac rate and rhythm, no
tachycardia, mild peripheral edema, subjective “decreased sensation of feet and ankles
bilaterally and symmetrically.” 	Dr. Sanders noted that Ms. T.’s recent laboratory tests
showed mild renal insufficiency, elevated white blood cell count, no anemia, abnormal
urinalysis, and abnormal urine culture with Escherichia coli. Dr. Sanders also noted that
Ms. T. was at “[h]igh risk for progressive heart failure, renal insufficiency, pneumonia,
pulmonary emboli, sepsis, and premature death.”47
On October 20, 2017, Ms. T. followed up with Dr. Binder after a stress cardiac MRI
on October 19, 2017. The cardiac MRI showed “[m]oderate to severely enlarged LV cavity
size”; “[s]everely reduced global LV systolic function”; a quantitative ejection fraction of
27%; segmental wall motion abnormalities; reduced global RV systolic function; and
moderate left atrial enlargement. Dr. Binder assessed Ms. T. with dilated cardiomyopathy;
combined systolic and diastolic heart failure; abnormal cardiovascular studies; “quite
significant cholelithiasis”; and CAD native vessel.48
On November 2, 2017, Ms. T. followed up with Dr. Sanders. 	On physical
examination, Dr. Sanders observed that Ms. T.’s blood pressure was 123/90.49
On November 26, 2017, Ms. T. presented to the emergency department at Alaska
Regional Hospital. 	She reported chest pain, shortness of breath, and loss of sensation
47 A.R. 458–62.
48 A.R. 469–77, 684–92.
49 A.R. 453–56.
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“to parts of her legs bilaterally.” On physical examination, Ms. T. had a positive troponin
level of 1.075, mild tachypnea, and tachycardia. 	The chest x-ray showed “possible
edema” and the EKG showed “no clear ischemic changes.”50 	The next day, Ms. T.
underwent 	left 	heart 	catherization 	and 	selective 	coronary 	arteriography 	at Alaska
Regional Hospital. On physical examination, her ejection fraction was 34%, but visually
appeared as 25–30%. She was diagnosed with severe acute coronary artery disease in
the right coronary artery (“RCN”) and diffuse severe coronary artery disease in the left
anterior descending artery (“LAD”) and left circumflex coronary artery (“LCx”).51 	On
November 29, 2017, Ms. T. underwent percutaneous transluminal angioplasty and
primary coronary stent placement “to the serial segments of subtotal occlusion of the
descending dominant right coronary artery with the distal right coronary artery filling
predominantly via left coronary collateral flow.” 	Cardiologist Thomas Kramer, M.D.,
diagnosed Ms. T. with severe multivessel atherosclerotic coronary artery disease; dilated
cardiomyopathy; combined systolic and diastolic heart failure, acute on chronic; unstable
angina; subendocardial myocardial infarction by troponins; insulin dependent diabetic;
long-time smoker; obesity; history of hypertension; history of dyslipidemia; and chronic
kidney disease.52 Ms. T. was discharged from Alaska Regional Hospital on December 1,
2017.53
50 A.R. 396–403, 547–53.
51 A.R. 404–05.
52 A.R. 406–10.
53 A.R. 566.
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On December 14, 2017, Ms. T. followed up with Dr. Sanders for medication
consultation and refills. On physical examination, Dr. Sanders noted that Ms. T.’s blood
pressure was “nicely low” with a low pulse and no evidence of atrial fibrillation. 	Dr.
Sanders observed that Ms. T. had a regular heart rate and rhythm and had mild peripheral
edema. 	Dr. Sanders noted that Ms. T. “just restarted insulin but is using it incorrectly.”
She 	also 	noted 	that 	Ms. 	T.’s 	“[h]ome 	glucose 	levels 	are 	excellent 	with 	recent
hospitalization and reduction in alcohol use.” 	Dr. Sanders opined that Ms. T. was not
cleared to work, travel, drive long distances, fly, or fall on the ice.54
On December 15, 2017, Ms. T. followed up with Arron O’Callaghan, PA-C, at
Alaska Heart & Vascular Institute, for “[h]eart failure follow up.” On physical examination,
PA O’Callaghan noted that Ms. T. had a normal A-P diameter; normal heart rate and
regular rhythm; normal S1 and S2 cardiac auscultation and no S3 or S4; and no lower
extremity edema. No medications were changed at the visit.55
On April 	12, 	2018, 	Ms. 	T. 	saw 	Elizabeth 	Hill 	Bryant, ANP, 	at Anchorage
Neighborhood Health Center. She reported not taking her diabetes medications for 7-10
days prior to the appointment “due to a move.” 	She reported back and foot pain and a
substantial decline in alcohol use since November 2017. Her most recent creatinine was
1.51, her blood pressure was well controlled, and she reported no chest pain, cough,
headache, or dizziness. 	Ms. T.’s hemoglobin A1c was 10% at the appointment. 	ANP
54 A.R. 463–67.
55 A.R. 677–82.
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Bryant observed no lower extremity edema. 	ANP Bryant noted that Ms. T. missed her
last 5 appointments at her “Heart Failure Clinic.”56
On April 18, 2018, Ms. T. saw Arron O’Callaghan, PA-C, at Alaska Heart & Vascular
Institute. 	She reported chest pressure lasting 10-15 minutes at least once a week and
believed that she had used nitroglycerin maybe five times in the last four months. 	PA
O’Callaghan noted that Ms. T. had “been quite stable on goal-directed medical therapy
for heart failure” and that her weight was up by 10 pounds since December 2017, but that
she did not report palpitations, irregular heartbeat, feeling of heart pausing or fluttering,
or lower extremity swelling, paroxysmal nocturnal dyspnea (PND), or orthopnea.57
On April 25, 2018, Ms. T. had an echocardiogram. 	Her ejection fraction was
calculated as 46%.58
On May 2, 2018, Ms. T. followed up with PA O’Callaghan. PA O’Callaghan noted
that Ms. T.’s ejection fraction had improved to 46% and “some [left ventricle] function has
recovered with [guideline determined medical therapy],” but that Ms. T. continued to report
chest pain multiple times each week.59
On May 18, 2018, Ms. T. saw Kenton Stephens, M.D., at Denali Cardiac & Thoracic
Surgical Group for a consultation about coronary artery bypass grafting. 	She reported
recurrent angina two to three times per week requiring nitroglycerine for relief. She also
56 A.R. 495–501.
57 A.R. 668–74.
58 A.R. 617.
59 A.R. 661–66.
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reported “shortness of breath with walking on flat ground, working around the house, and
walking up one flight of stairs.” 	On physical examination, Ms. T. had a regular cardiac
rate and rhythm, normal blood pressure, “subjective dysesthesias in her fee,” full and
symmetric muscle bulk, and a normal gait. 	Dr. Stephens opined that Ms. T. was “going
to have difficult surgical revascularization challenges given the small size of her targets,
her diffuse disease, and her impaired ventricular function.” 	He also noted, “[h]owever,
given her young age, ischemic cardiomyopathy, and diabetes, I think there is a clear
survival benefit for recommending surgery for her.”60
On May 31, 2018, Ms. T. followed up with ANP Bryant. 	At the visit, Ms. T.’s
hemoglobin A1c was 9.2% and her blood pressure was low.61 	On the same date, ANP
Bryant completed a Health Status Report Form for the State of Alaska. 	She diagnosed
Ms. T. with insulin dependent diabetes mellitus; heart failure; CAO – renal failure; obesity;
chronic pain; and alcoholism. 	She indicated that it was “not safe to work” and that Ms.
T.’s condition was expected to limit her ability to work for over 12 months. ANP Bryant
noted that Ms. T. was “being brought to a level of health where she can undergo open
heart surgery.”62
On June 19, 2018, Ms. T. saw Kristine Polintan, APRN, at Alaska Heart & Vascular
Institute. 	She reported exertional angina “that worsened over the weekend.” 	She also
reported “significant lightheadedness which negatively impacts her ADLs.” 	APRN
60 A.R. 525–28.
61 A.R. 488–94.
62 A.R. 482–83.
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Polintan noted that the “EKG today showed NSR with non-specific lateral ST-T changes.”
She also noted that Ms. T. would “proceed with the planned cardiac catheterization in AM
with Dr. Kelly.”63
On June 20, 2018, Ms. T. underwent left heart catherization and selective coronary
and femoral arteriorgraphy.64
On July 2, 2018, Ms. T. followed up with Dr. Stephens regarding a preoperative
consultation for anticipated coronary bypass grafting. She reported “some chest pressure
on a daily basis.” 	Dr. Stephens noted that Ms. T. did not want to undergo the planned
surgery, but also noted that he “explained the indication for surgery would be the presence
of three-vessel coronary artery disease with ischemic cardiomyopathy in a young diabetic
patient which would likely confer to her a survival benefit.” Dr. Stephens also notified Ms.
T. that she would need to be “very diligent with her cardiac medications for the remainder
of her life.”65
On July 9, 2018, Ms. T. saw Dr. Sanders for a prescription for a new glucometer.
On physical examination, Dr. Sanders observed 97/63 blood pressure, a regular heart
rate and rhythm, no peripheral edema, and a hemoglobin A1c of 9.2%. 	Dr. Sanders
assessed Ms. T. with “[l]ong-standing poorly controlled insulin-dependent diabetes with
hemoglobin A1c 9.2%”; 	chronic 	renal 	failure; 	multivessel 	coronary 	artery disease;
63 A.R. 652–59.
64 A.R. 775–81.
65 A.R. 523–24.
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cannabis abuse; and chronic medication noncompliance producing high risk for seizure,
stroke, heart attack, and renal failure.66
On July 18, 2018, Ms. T. followed up with PA O’Callaghan. She reported continued
exertional chest discomfort that resolved after 1-3 tablets of nitroglycerin. 	She also
reported significant lightheadedness which negatively impacted her activities of daily
living. After explanation, Ms. T. agreed to undergo surgery.67
On August 1, 2018, Dr. Sanders completed a Health Status Report Form for the
State of Alaska. She diagnosed Ms. T. with poorly controlled insulin-dependent diabetes
mellitus; chronic renal failure; severe heart failure; chronic pain; alcohol abuse; substance
abuse; and cognitive dysfunction. 	Dr. Sanders opined that Ms. T. was not able to work
full or part-time and her condition limited Ms. T.’s ability to work for more than 12 months.68
On August 30, 2018, Ms. T. underwent eight vessel coronary artery bypass
grafting. She was discharged on September 6, 2018. The discharge instructions included
a caution to “use sternal precautions for a minimum of 6–8 weeks post-surgical” and
notification that she would require “several months to recover” and would “experience
memory loss, find [she would be] easily confused, and struggle emotionally due to large
hormone surges.” 	The discharge instructions included a recommendation not to travel
66 A.R. 484–87.
67 A.R. 639–44.
68 A.R. 503–06.
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alone, limitations on lifting, and “that medications should be administered and monitored
by someone other than the patient.”69
On September 20, 2018, Ms. T. saw Cami Zobel, PA-C, at Denali Cardiac &
Thoracic Surgical Group for post-surgery follow up. 	She reported “doing well” after
surgery. 	PA Zobel instructed Ms. T. to “continue using sternal precautions for a full six
weeks from the date of surgery” and then “slowly increase her pushing, pulling and lifting
by about 3 to 5 pounds every three to five days as tolerated.”70
On September 26, 2018, Ms. T. followed up with Dr. Sanders. She reported recent
glucose levels as “good” with no written results. She also reported no fevers, sternal pain,
chest pain, or heart fluttering. On physical examination, Dr. Sanders observed that Ms.
T. looked “much healthier now than in the past 1 year”; had clear lungs; a regular heart
rate and rhythm; and no peripheral edema. 	She observed that Ms. T. was alert,
cooperative, interactive, more attentive, and able to review her medications accurately.71
On October 17, 2018, Ms. T. saw Mario Binder, M.D., at Alaska Heart & Vascular
Institute. She reported trying to be more active and walking every day. She denied chest
pressure, palpitations, severe dizziness or syncope. Dr. Binder noted that Ms. T. was
“doing wonderfully” after her eight-vessel bypass surgery, had no evidence of “overt heart
failure/volume overload today.”72
69 A.R. 512–15; 529; 538; 826–29.
70 A.R. 529–32.
71 A.R. 751–55.
72 A.R. 619–24.
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On October 31, 2018, Dr. Sanders wrote a letter opining that Ms. T. was not able
to return to work. She also noted that it was “unlikely [Ms. T.] will work in the future due
to severe cardiac disease.”73
On December 17, 2018, Ms. T. followed up with Dr. Sanders for Alaska Medicaid
paperwork. On physical examination, Ms. T.’s blood pressure was acceptable; she was
alert, cooperative, interactive, more attentive, but looked “exhausted.” Dr. Sanders also
observed that Ms. T. had a regular heart rate and rhythm; no peripheral edema;
hemoglobin A1c of 8.8%, which was “not at goal”; creatinine at 1.7; and GFR at 34 in
recent renal function tests. Dr. Sanders noted that Ms. T. was “not cleared to work at this
time due to 8 vessel coronary artery bypass, hyperglycemia associated with insulin
dependent diabetes, chronic renal failure, ongoing tobacco and marijuana use at risk for
stroke [,] seizure [,] heart attack [,] renal failure [,] and sepsis.74
On January 25, 2019, Dr. Sanders diagnosed Ms. T. with stable multivessel
coronary artery disease with recent 8 vessel bypass and no evidence of recurrent angina
or atrial fibrillation. 	Dr. Sanders noted that Ms. T.’s cardiac rehabilitation was pending.
Dr. Sanders also diagnosed Ms. T. with long-standing poorly controlled diabetes with
hemoglobin A1c at 8.8%; long-standing uncontrolled hypertension; long-standing tobacco
use; chronic alcohol abuse, but Ms. T. denied use; marijuana use; postoperative anemia;
73 A.R. 545.
74 A.R. 745–49.
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chronic renal failure; overweight status; and deconditioning. Dr. Sanders opined that Ms.
T. was unable to return to work.75
The following record was submitted to the Appeals Council after the date of the
ALJ’s decision on March 7, 2019:
On May 29, 2019, Dr. Sanders provided a letter indicating that Ms. T. had been
evaluated at the Anchorage Neighborhood Health Center “for the following conditions:
IDDM, CAD, CHF, CRF, anemia, [and] upcoming surgery.” Dr. Sanders opined that Ms.
T. was not stable for work “now or in [the] next 12 months.”76
Hearing Testimony on February 1, 2019
On February 1, 2019, Ms. T. appeared and testified before ALJ Hebda without
representation. She testified that she was alleging cardiac issues, renal failure, diabetes,
and anemia. 	She indicated that she lived with her two children and that her children’s
father and her niece helped with household chores and cooking. Ms. T. testified that her
driver’s license had expired. 	She reported that she “fainted the other day”; her
medications made her dizzy and drowsy; and she had headaches; chronic pain; hearing
difficulties; and numbness in her feet and hands. 	Ms. T. testified that in the past, she
worked at Brown Jug as a cashier and clerk; at Tesoro gas station; for Carr’s Safeway in
the deli department; at Kappa’s as a prep cook; at Subway; at Hula Hands restaurant; for
75 A.R. 915.
76 A.R. 7.
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Blackstone Consulting as a cook and janitor; and for Gal Global Services as an aircraft
cleaner.77
Steven Anderson, M.D., testified as the medical expert. 	Based on his review of
the record, Dr. Anderson opined that Ms. T. had the following impairments: diabetes;
chronic hypertension; coronary heart disease; history of congestive heart failure and
cardiomyopathy; and renal insufficiency. He testified that Ms. T.’s current kidney function
was adequate. 	Dr. Anderson also testified that in September 2017, “she had rather
significant cardiomyopathy and congestive failure,” but that most recently her ejection
fraction was 46%, “which wasn’t too bad.” He noted that Ms. T. had no ongoing episodes
or 	complaints of angina 	and 	that her hypertension 	“seems 	to be 	controlled 	with
medication.” 	Dr. Anderson opined that Ms. T.’s impairments individually and combined
did not meet or equal a listing. He opined that Ms. T. would be limited to frequent lifting
and carrying of 10 pounds; standing or walking two hours out of an eight-hour workday;
sitting six hours out of an eight-hour day; pushing and pulling up to 10 pounds;
occasionally climbing ramps and stairs; never climbing ladders, ropes, or scaffolds;
occasionally stooping, kneeling, crouching, and crawling; avoiding moderate exposure to
extreme 	cold; 	avoiding 	concentrated 	exposure 	to 	extreme 	heat; 	and 	avoiding
concentrated exposure to fumes, dust, poor ventilation, hazards, and unprotected
heights.78
77 A.R. 37–40; 44–55.
78 A.R. 40–44.
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William Weiss testified as the vocational expert. 	Based on the ALJ’s first
hypothetical,79 VE Weiss opined that Ms. T. would not be able to perform her past work,
but could perform work as a callout operator, surveillance system monitor, and table
worker.80
Function Report
Ms. T. completed an undated function report.81 She indicated that she lived in an
apartment with her two children. 	She indicated that she was able to walk around the
block, but while doing so, she was short of breath and her body started to ache. Ms. T.
noted that her medications made her sleepy and dizzy. She reported losing her balance
while climbing six flights of stairs. She also reported that she went grocery shopping and
was able to complete household chores, but that she did not do yard work or work on
cars. 	Ms.T. indicated that she slept six to seven hours each night and required rest
79 The ALJ’s first hypothetical was as follows:
I have an individual of the claimant’s age, education, past work experience, who’d
be able to perform sedentary, light work—sedentary work as defined by the Social
Security Administration, with only occasional climbing of ramps and stairs,
stooping, kneeling, crouching, and crawling; with no climbing of ladders, ropes, or
scaffolding. The person would have to avoid moderate exposure of non-weather-
related extreme cold, and concentrated exposure to non-weather-related extreme
heat, fumes, odors, dust, and poorly ventilated areas, unprotected heights, and
hazardous machinery. A.R. 58.
80 A.R. 55–59.
81 The Exertional Activities Questionnaire is dated November 9, 2017 on the Court Transcript
Index at Docket 11–2 at 2.
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periods of two to three hours during the day. Ms. T. reported driving her children to school.
She also reported that she wore a brace for her right middle finger.82
IV. DISCUSSION
Ms. T. is represented by counsel in this appeal. In her opening brief, she asserts
that the ALJ failed to “fully and fairly develop the record with respect to the appropriate
residual functional capacity from the alleged onset date through 2018 at least.”83 	The
Commissioner concedes that the ALJ’s “decision relied on incomplete opinions and did
not clearly consider the entire record” and “agrees further proceedings would serve a
useful purpose.”84 However, Ms. T. also argues that she “was disabled at least from her
September 2017 alleged onset date through December 2018 during which she underwent
two heart operations.”85
A. Medical Opinions and Development of the Record
Ms. T. argues that testifying expert Dr. Anderson’s opinion of Ms. T.’s exertional
limitations “was cursory with respect to the critically decisive period” of September 2017
through 	December 2018 and the ALJ 	failed 	“to 	account for 	treating 	surgeon 	Dr.
Stephens’s treatment notes.”86 The Commissioner concedes that the opinion evidence
the ALJ relied upon was “incomplete” and that “the opinions were not entirely consistent
82 A.R. 182–84.
83 Docket 14 at 17.
84 Docket 19 at 6.
85 Docket 14 at 13.
86 Docket 14 at 15–16.
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with the ALJ’s finding that [Ms. T.] was capable of a range of sedentary work activity
between the alleged onset of disability, September 2017, and the ALJ’s decision in March
2019.”87 	Specifically, the Commissioner notes that neither Dr. Anderson’s opinion nor
medical consultant Dr. Brown’s opinion “considered the period between March 2018 and
February 2019.”88 The parties agree that the record was not fully developed by the ALJ.89
1. 	Legal Standard
The ALJ has an “independent duty to fully and fairly develop the record and to
assure that the claimant’s interests are considered.”90 However, an “ALJ’s duty to develop
the record further is triggered only when there is ambiguous evidence or when the record
is inadequate to allow for proper evaluation of the evidence.”91 	Further, “[a]n ALJ is
required to recontact a doctor only if the doctor’s report is ambiguous or insufficient for
the ALJ to make a disability determination.”92
2. 	Analysis
Here, testifying expert Dr. Anderson acknowledged that in September 2017, Ms.
D. “had rather significant cardiomyopathy and congestive failure,” but went on to testify
that she had no ongoing episodes or complaints of angina and her hypertension appeared
87 Docket 19 at 2.
88 Docket 19 at 3.
89 Docket 14 at 17; Docket 19 at 2–3.
90 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (internal citations and quotations
omitted).
91 McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (internal citations omitted).
92 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); 20 C.F.R. §§ 404.1512(e), 416.912(e).
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to be controlled with medication.93 	However, the medical record shows a much more
complicated history. 	For example, on September 17, 2017, Ms. T. had a “severely
decreased ejection fraction” of 15–20%. 	The attending physician’s diagnoses included
acute congestive heart failure and cardiomyopathy.94 A stress test MRI in October 2017
showed an ejection fraction of 27% and other cardiac abnormalities.95 In November 2017,
Ms. T. underwent three-vessel catherization and stenting.96 	On April 18, 2018, Ms. T.
reported chest pressure lasting 10-15 minutes at least once a week and that she had
used nitroglycerine approximately five times in the past four months.97 By May 2018, Ms.
T.’s ejection fraction improved to 46%.98 In late August and early September 2018, Ms.
T. underwent eight vessel coronary artery bypass grafting.99 	On September 20, 2018,
Ms. T. was instructed to “continue using sternal precautions for a full six weeks from the
date of surgery.”100 In December 2018, Ms. T.’s primary care physician opined that Ms.
T. was not cleared to work due to her bypass surgery, hyperglycemia associated with
93 A.R. 40–44.
94 A.R. 230–53.
95 A.R. 684–96.
96 A.R. 404–10.
97 A.R. 668–73.
98 A.R. 664.
99 A.R. 512–15.
100 A.R. 531.
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insulin dependent diabetes, chronic renal failure, and ongoing tobacco and marijuana
use.101
As acknowledged by the Commissioner, consulting physician Dr. Brown’s opinion
was rendered before Ms. T. underwent eight vessel coronary artery bypass grafting, yet
the ALJ found Dr. Brown’s opinion “persuasive” to determine that Ms. T. was capable of
sedentary work throughout the entire alleged disability time period.102 	Ms. T.’s treating
physician, Dr. Stephens, did not render a medical opinion as defined by the new
regulations.103
101 A.R. 745.
102 A.R. 18–19, 22, 65–69, 512. See Docket 19 at 3.
103 A.R. 523–28. 	Compare 20 C.F.R. § 404.1527 with 20 C.F.R. § 404.1513(a)(2). 	The new
regulations define a medical opinion as follows:
A medical opinion is a statement from a medical source about what you can still
do despite your impairment(s) and whether you have one or more impairment-
related limitations or restrictions in the following abilities: . . .
(i) Your ability to perform physical demands of work activities, such as
sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical
functions (including manipulative or postural functions, such as reaching, handling,
stooping, or crouching);
(ii) Your ability to perform mental demands of work activities, such as
understanding; remembering; maintaining concentration, persistence, or pace;
carrying out instructions; or responding appropriately to supervision, co-workers,
or work pressures in a work setting;
(iii) Your ability to perform other demands of work, such as seeing, hearing,
or using other senses; and
(iv) Your ability to adapt to environmental conditions, such as temperature
extremes or fumes. 20 C.F.R. § 404.1513(a)(2).
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The Court agrees that the opinion evidence the ALJ relied on was incomplete and
the ALJ did not fully and fairly develop the record. Although the ALJ must consider the
combined impact of all impairments throughout the disability determination period,104 in
this case, the ALJ’s reliance on Dr. Anderson’s and Dr. Brown’s incomplete opinions
regarding a critical time period within the overall disability determination period warrants
remand.
B. Scope of Remand
The “ordinary remand rule” applies to disability cases. 	Under this rule, if “the
reviewing court simply cannot evaluate the challenged agency action on the basis of the
record before it, the proper course, except in rare circumstances, is to remand to the
agency for additional investigation or explanation.”105 The court follows a three-step
analysis to determine whether the case raises the “rare circumstances” that allow a court
to exercise its discretion to remand for an award of benefits. 	“First, [the court] must
conclude that ‘the ALJ has failed to provide legally sufficient reasons for rejecting
evidence, whether claimant testimony or medical opinion.’”106 “Second, [the court] must
conclude that ‘the record has been fully developed and further administrative proceedings
104 Vazquez v. Astrue, 572 F. 3d 586, 596–97 (9th Cir. 2009); 20 C.F.R. § 404.1523 (effective
March 27, 2017) (noting that the combined effect of all of the claimant’s impairments will be
considered “without regard to whether any such impairment, if considered separately, would be
of sufficient severeity”); 20 C.F.R. § 404.1545 (a)(2) (2012) (noting that where a claimant has
more than one impairment, the adjudicator will consider all of the them, even those that are not
severe, in determining the claimant’s RFC).
105 Treichler, 775 F.3d at 1099 (quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985)).
106 Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (quoting Garrison, 759 F.3d at 1020).
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would serve no useful purpose.’”107 	“Where there is conflicting evidence, and not all
essential factual issues have been resolved, a remand for an award of benefits is
inappropriate.”108 	“Third, [the court] must conclude that ‘if the improperly discredited
evidence were credited as true, the ALJ would be required to find the claimant disabled
on remand.’”109 But, “even if all three requirements are met, [the court] retain[s] ‘flexibility’
in determining the appropriate remedy” and “may remand on an open record for further
proceedings ‘when the record as a whole creates serious doubt as to whether the claimant
is, in fact, disabled within the meaning of the Social Security Act.’”110
Ms. T argues that this matter should be remanded for a de novo hearing and a new
decision or alternatively, asks the Court to find Ms. T. disabled from “the alleged onset
date through the 2018 post-operative Discharge period.”111 	In her reply brief, Ms. T.
makes the argument that Ms. T. is disabled and this Court should “defer to the factfinder
to 	properly 	adjudicate 	cessation 	of 	disability, 	if 	it 	has 	occurred 	at 	all.”112 	The
Commissioner responds that the Court should reverse and remand the ALJ’s decision for
further proceedings and that Ms. T. has waived any argument in her reply brief that she
is entitled to remand for calculation of benefits.113
107 Id. (quoting Garrison, 759 F.3d at 1020).
108 Treichler, 775 F.3d at 1101.
109 Brown-Hunter, 806 F.3d at 495 (quoting Garrison, 759 F.3d at 1021).
110 Id. (quoting Garrison, 759 F.3d at 1021).
111 Docket 14 at 20.
112 Docket 20 at 2.
113 Docket 19 at 6 (citing McKay v. Ingleson, 558 F.3d 888, 891 n.5 (9th Cir. 2009).
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Here, the Court has found that the ALJ did not provide legally sufficient reasons for
finding Dr. Anderson’s and Dr. Brown’s opinions persuasive. 	The medical opinion
evidence relied upon by the ALJ was incomplete. 	Additionally, given the nature of the
medical record in this case, the ALJ may elect to bifurcate the disability determination
period. Finally, Ms. T. did not clearly articulate a request for the calculation of benefits in
her briefing nor did she provide legal authority or specific record support for such
argument. Therefore, the case will be remanded for additional proceedings.
Upon remand, the ALJ will provide Ms. T. with an opportunity for a new hearing,
submit new evidence in support of her claim, and will provide a new decision. The ALJ
will take any steps necessary to fully and fairly develop the administrative record,
including obtaining medical expert evidence specifically analyzing the time period from
the alleged onset date of September 17, 2017 through the post-operative period following
Ms. T.’s eight-vessel bypass surgery. The ALJ may bifurcate the disability determination
period.
V. 	ORDER
The Court, having carefully reviewed the administrative record, finds that the ALJ’s
determinations are not free from legal error and the ALJ’s decision is not supported by
substantial evidence in the record. Accordingly, IT IS ORDERED that Ms. T.’s request for
relief at Docket 14 is GRANTED IN PART and DENIED IN PART as set forth herein, the
Commissioner’s final decision is VACATED, and the case is REMANDED to the SSA for
further proceedings consistent with this decision.
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The Clerk of Court is directed to enter a final judgment accordingly.
DATED this 13th day of February, 2020 at Anchorage, Alaska.
/s/ Timothy M. Burgess
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
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