Ward v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

KRISTINE W.,1 No. 6:22-cv-00358-HZ

Plaintiff, OPINION & ORDER

v.

COMMISSIONER, SOCIAL

SECURITY ADMINISTRATION,

Defendant.

Nancy J. Meserow

7540 SW 51st Ave.

Portland, OR 97219

Attorney for Plaintiff

Kevin Danielson

Assistant United States Attorney

District of Oregon

1000 SW Third Avenue, Suite 600

Portland, OR 97204

1 In the interest of privacy, this Opinion uses only the first name and the initial of the last name of the non-

governmental party or parties in this case. Where applicable, this Opinion uses the same designation for a non-

governmental party’s immediate family member.

Noah Schabacker

Special Assistant United States Attorney

Office of the General Counsel

Social Security Administration

6401 Security Boulevard

Balitmore, MD 21235

Attorneys for Defendant

HERNÁNDEZ, District Judge:

Plaintiff Kristine W. brings this action seeking judicial review of the Commissioner’s

final decision to deny disability insurance benefits (“DIB”). This Court has jurisdiction pursuant

to 42 U.S.C. § 405(g). The Court reverses the Commissioner’s decision and remands this case

for payment of benefits.

PROCEDURAL BACKGROUND

Plaintiff applied for DIB on November 18, 2018, alleging an onset date of December 21,

2017. Tr. 19.2 Plaintiff’s date last insured (“DLI”) is March 31, 2024. Tr. 21. Her application was

denied initially and on reconsideration. Tr. 107, 133.

On February 10, 2021, Plaintiff appeared with counsel for a hearing before an

Administrative Law Judge (“ALJ”). Tr. 50. On March 25, 2021, the ALJ found Plaintiff not

disabled. Tr. 41. The Appeals Council denied review. Tr. 1.

FACTUAL BACKGROUND

Plaintiff alleges disability based on familial Mediterranean fever, monoclonal

paraproteinemia, migraines, small fiber neuropathy, cryopyrin associated periodic syndrome,

hypersomnolence, pancreatic insufficiency exocrine, generalized anxiety disorder, and

2 Citations to “Tr.” refer to the page(s) indicated in the official transcript of the administrative record, filed herein as

Docket No. 10.

depression. Tr. 281. At the time of her alleged onset date, she was 40 years old. Tr. 39, 223. She

has a high school degree, completed four or more years of college, and has past relevant work

experience as an admitting clerk and software engineer. Tr. 39, 282.

SEQUENTIAL DISABILITY EVALUATION

A claimant is disabled if they are unable to “engage in any substantial gainful activity by

reason of any medically determinable physical or mental impairment 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), 1382c(a)(3)(A). Disability claims are evaluated according to a five-step

procedure. See Valentine v. Comm’r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases,

agency uses five-step procedure to determine disability). The claimant bears the ultimate burden

of proving disability. Id.

In the first step, the Commissioner determines whether a claimant is engaged in

“substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137,

140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the Commissioner determines

whether the claimant has a “medically severe impairment or combination of impairments.”

Yuckert, 482 U.S. at 140–41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not

disabled. Id.

At step three, the Commissioner determines whether the claimant’s impairments, singly

or in combination, meet or equal “one of a number of listed impairments that the [Commissioner]

acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141;

20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if

not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

At step four, the Commissioner determines whether the claimant, despite any

impairment(s), has the residual functional capacity (RFC) to perform their “past relevant work.”

20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can perform past relevant work, the

claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to

the Commissioner. At step five, the Commissioner must establish that the claimant can perform

other work. Yuckert, 482 U.S. at 141–42; 20 C.F.R. §§ 404.1520(e)–(f), 416.920(e)–(f). If the

Commissioner meets their burden and proves that the claimant can perform other work that

exists in the national economy, then the claimant is not disabled. 20 C.F.R. §§ 404.1566,

416.966.

THE ALJ’S DECISION

At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful

activity after her alleged onset date of December 21, 2017. Tr. 21. Next, at steps two and three,

the ALJ determined that Plaintiff has the following severe impairments: “degenerative disc

disease of the cervical spine with fusion, cryopyrin associated periodic syndrome/familial

Mediterranean fever, migraine, small fiber neuropathy, bipolar disorder, anxiety disorder, and

post-traumatic stress disorder.” Tr. 21. However, the ALJ determined that Plaintiff’s

impairments did not meet or medically equal the severity of a listed impairment. Tr. 22. At step

four, the ALJ concluded that Plaintiff has the residual functional capacity to perform “a range of

sedentary work” as defined in 20 C.F.R. § 404.1567(a) with the following limitations:

The claimant can lift and/or carry 20 pounds occasionally and 10 pounds frequently.

She can stand and/or walk for about two hours total in an eight-hour workday. She

can sit for about six hours total in an eight-hour workday. She can occasionally

reach overhead bilaterally. She should avoid even moderate exposure to extreme

cold, working at unprotected heights, or around dangerous, unprotected major

manufacturing machinery. She is able to understand, remember and carry out

simple routine tasks that can be learned and mastered in up to 30 days or less. At

such levels, she is able to maintain concentration, persistence and pace within

customary norms, make simple work-related decisions, plan and set goals, adapt to

routine workplace changes, travel, and recognize and avoid ordinary workplace

hazards.

Tr. 24. Because of these limitations, the ALJ concluded that Plaintiff could not perform her past

relevant work. Tr. 39. But at step five, the ALJ found that there are jobs that exist in significant

numbers in the national economy that Plaintiff can perform, such as “document preparer,”

“trimmer,” and “router clerk.” Tr. 40. Thus, the ALJ concluded that Plaintiff is not disabled. Tr.

41.

STANDARD OF REVIEW

A court may set aside the Commissioner’s denial of benefits only when the

Commissioner’s findings “are based on legal error or are not supported by substantial evidence

in the record as a whole.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal

quotation marks omitted). “Substantial evidence means more than a mere scintilla but less than a

preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Id. (internal quotation marks omitted). The court considers the record as a

whole, including both the evidence that supports and detracts from the Commissioner’s decision.

Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). “Where the evidence is

susceptible to more than one rational interpretation, the ALJ’s decision must be affirmed.”

Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also Massachi v.

Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (“Where the evidence as a whole can support either

a grant or a denial, [the court] may not substitute [its] judgment for the ALJ’s.”) (internal

quotation marks omitted).

///

///

DISCUSSION

Plaintiff argues that the ALJ erred by: (1) improperly rejecting Plaintiff’s subjective

symptom testimony; (2) failing to adequately consider whether Plaintiff’s migraines equal

Listing 11.02; and (3) failing to adequately analyze medical opinion evidence. Pl. Br. 1-2.

Plaintiff argues that the case should be remanded for immediate payment of benefits. Id. at 34.

The Commissioner concedes that the ALJ’s decision is not supported by substantial evidence but

argues that the case should be remanded for further proceedings. Def. Br. 5. Because Plaintiff’s

migraines equal Listing 11.02, the Court agrees with Plaintiff.3

I. Subjective Symptom Testimony

Plaintiff contends the ALJ failed to provide legally sufficient reasons to reject her

subjective symptom testimony concerning her migraines. The ALJ is responsible for evaluating

symptom testimony. SSR 16-3p, 2017 WL 5180304, at *1 (Oct. 25, 2017). The ALJ engages in a

two-step analysis for subjective symptom evaluation. Molina v. Astrue, 674 F.3d 1104, 1112 (9th

Cir. 2012) (superseded on other grounds). First, the ALJ determines whether there is “objective

medical evidence of an underlying impairment which could reasonably be expected to produce

the pain or other symptoms alleged.” Id. (internal quotations omitted). Second, “if the claimant

has presented such evidence, and there is no evidence of malingering, then the ALJ must give

specific, clear and convincing reasons in order to reject the claimant’s testimony about the

severity of the symptoms.” Id. (internal quotations omitted).

When evaluating subjective symptom testimony, “[g]eneral findings are insufficient.”

Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (quoting Lester v. Chater, 81 F.3d 821, 834

3 Because the ALJ’s analysis of Plaintiff’s migraines is dispositive in this case, the Court focuses

its discussion on the alleged errors only as they pertain to Plaintiff’s migraines.

(9th Cir. 1995)). “An ALJ does not provide specific, clear, and convincing reasons for rejecting a

claimant’s testimony by simply reciting the medical evidence in support of his or her residual

functional capacity determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 489 (9th Cir. 2015).

Instead, “the ALJ must specifically identify the testimony she or he finds not to be credible and

must explain what evidence undermines the testimony.” Holohan v. Massanari, 246 F.3d 1195

(9th Cir. 2001); see also Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (The reasons

proffered must be “sufficiently specific to permit the reviewing court to conclude that the ALJ

did not arbitrarily discount the claimant’s testimony.”).

Plaintiff testified that on “[b]ad days” Plaintiff required earplugs in a darkened room, in

bed, away from family to manage her migraines. Tr. 62-63. She stated her migraines occur ten to

twenty days per month and working even a simple job during a migraine “would be

excruciating.” Tr. 65-66. Plaintiff testified that she likes listening to audiobooks with “very, very

low volume . . . [with her] eyes closed” in order to enjoy them. Tr. 75. Plaintiff noted that her

migraines include “sensitivity to light, sensitivity to noise, eye pain/pressure, nausea, need to rest

in a quiet dark room – lasting more than 1 day” and headaches “lasting 1-3 hours” on her

function report. Tr. 326.

The ALJ relied on conservative treatment and Plaintiff’s activities to discount Plaintiff’s

migraine symptom testimony. Tr. 26-27. The ALJ noted that Plaintiff’s migraines improved in

January 2020 from using Aimovig. Tr. 27. The ALJ also wrote that “[a]lthough the claimant

alleges that she is unable to stand noise given her migraines, she . . . testified that she is able to

listen to audiobooks.” Tr. 27.

These were not clear and convincing reasons to reject Plaintiff’s testimony. The record

shows Plaintiff claimed to find Aimovig helpful for her migraine treatment. Tr. 2269. However,

the record shows that just days later Plaintiff continued to experience headaches with visual

disturbances ten to twelve days per month, her headaches lasted three days, and they caused her

to fall down a flight of stairs and break her right big toe. Tr. 2282. Her prior records in 2018 note

Aimovig “reduced her migraine days by half and certainly warrants continued use.” Tr. 841. At

the time, Plaintiff reported experiencing migraines “65% of the month” to her providers, thus the

Aimovig reduced Plaintiff’s headaches to “a quarter of the month rather than half.” Tr. 864, 839.

These records align with Plaintiff’s testimony of experiencing 10-20 days with migraines per

month and do not discredit Plaintiff’s symptom testimony. Tr. 65-66.

Similarly, the ALJ misconstrues Plaintiff’s testimony regarding her activities. Plaintiff

specifically noted she could listen to audiobooks on very low volume. Tr. 75. Plaintiff’s periodic

enjoyment of an audiobook on low volume also does not discredit her subjective symptom

testimony regarding her migraines. Thus, the ALJ erred in rejecting Plaintiff’s testimony

regarding her migraines.

II. Medical Opinion Evidence

Plaintiff contends that the ALJ erred by failing to properly consider the medical opinion

of neurologist Mark Herring, M.D. Pl. Br. 14-29. New regulations about weighing medical

opinion evidence apply to claims filed on or after March 27, 2017. Rules Regarding the

Evaluation of Medical Evidence, 2017 WL 168819, 82 Fed. Reg. 5844-01 (Jan. 18, 2017); 20

C.F.R. §§ 404.1520c, 416.920c. Under the new regulations, ALJs are no longer required to give

deference to any medical opinion, including treating source opinions. Id. Instead, the agency

considers several factors. 20 C.F.R. §§ 404.1520c(a), 416.920c(a). These are: supportability,

consistency, relationship to the claimant, specialization, and “other factors.” 20 C.F.R. §§

404.1520c(c)(1)-(5), 416.920c(c)(1)-(5). The “most important” factors in the evaluation process

are supportability and consistency. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2).

Under this framework, the ALJ must “articulate . . . how persuasive [they] find all of the

medical opinions” from each doctor or other source. 20 C.F.R. §§ 404.1520c(b), 416.920c(b)(2).

In doing so, the ALJ is required to explain how supportability and consistency were considered

and may explain how the other factors were considered. 20 C.F.R §§ 404.1520c(b)(2),

416.920c(b)(2). When two or more medical opinions or prior administrative findings “about the

same issue are both equally well-supported . . . and consistent with the record . . . but are not

exactly the same,” the ALJ is required to explain how the other factors were considered. 20

C.F.R. §§ 404.1520c(b)(3), 416.920c(b)(3). “Even under the new regulations, an ALJ cannot

reject an examining or treating doctor’s opinion as unsupported or inconsistent without providing

an explanation supported by substantial evidence.” Woods v. Kijakazi, 32 F.4th 785, 792 (9th

Cir. 2022).

Dr. Herring was Plaintiff’s treating neurologist for her migraines. Tr. 677-713. Dr.

Herring noted normal and abnormal examinations, including apparent neurological distress,

exhaustion, and being tearful. Tr. 682, 687, 693, 699. Plaintiff complained of chronic daily

headaches and severe migraines, as well as other pains, which Dr. Herring attempted to treat with

varying doses of gabapentin, indomethacin, and others. Tr. 679, 682. Dr. Herring noted that

Plaintiff’s chronic migraine status had “deteriorated” and wanted her “evaluated at the university

level.” Tr. 682. At an appointment on February 22, 2018, Dr. Herring wrote that he discussed

with Plaintiff her diagnoses and symptoms that “affect[ed] her ability to sustain work.” Tr. 685.

He opined that “she is effectively disabled by her chronic headaches as well as her neuropathic

pain, fatigue, and malaise, etc. I cannot think of any work modifications that would allow her to

return to work.” Tr. 685. Dr. Herring opined on Plaintiff’s Disability Medical Request Form, also

dated February 22, 2018, that Plaintiff’s work activities were limited to “only as tolerated . . .

preclud[ing] work activities.” Tr. 677. Plaintiff’s at home activities were limited to “only as

tolerated, requiring significant periods of rest.” Tr. 677. Dr. Herring concluded that Plaintiff was

“[n]ot able to work, secondary to multiple ongoing neurological symptoms.” Tr. 677.

The ALJ found Dr. Herring’s opinion unpersuasive because it did not identify specific

functional limitations, was not supported by his own findings or the overall record, relied on

Plaintiff’s subjective reports, and conflicted with Plaintiff’s activities. Tr. 35, 36.

Substantial evidence does not support the ALJ’s decision. First, Dr. Herring’s opinion

that Plaintiff requires “significant periods of rest” is a specific limitation an ALJ can include in

an RFC determination. Tr. 677; see Smith v. Kijakazi, No. 21-53652, 2022 WL 2703603, at *1

(9th Cir. July 12, 2022) (holding that the ALJ included physician’s limitation of “reasonable rest

breaks” by noting “regularly scheduled breaks” in the RFC). As noted above, Dr. Herring’s

opinions aligned with and were based on his own medical findings and did not solely rely on

Plaintiff’s subjective reports. Tr. 729, 758, 968, 2044, 2050-52, 2058-59, 2283, 2286-87, 2293-

94. Dr. Herring’s opinions also do not conflict with other physicians’ opinions in Plaintiff’s

medical records, which include complaints of chronic headaches, migraines, and noted pain and

exhaustion. Tr. 636, 736, 761, 767, 779-80.

Second, Dr. Herring opined that Plaintiff “is effectively disabled by her chronic

headaches as well as her neuropathic pain, fatigue, malaise, etc. I cannot think of any work

modifications that would allow her to return to work.” Tr. 761. He noted Plaintiff’s pain

“precludes work activities” and she could participate in activities “only as tolerated, requir[ing]

significant periods of rest.” Tr. 677. Dr. Herring specifically noted that his opinions were based

on Plaintiff’s reports and his own observations and examinations (including pain during

appointments, gait imbalances, photophobia, and ptosis), Plaintiff’s failed responses to

medications, and stated that Plaintiff’s pain “is not something one can measure on exam.” Tr.

729, 758, 968, 2044, 2050-52, 2058-59, 2283, 2286-87, 2293-94.

Finally, the ALJ opined that Plaintiff’s ability to take long flights and travel conflicts

with Dr. Herring’s opinions. Tr. 35. However, Dr. Herring addresses Plaintiff’s vacations in his

records, particularly one in which she went to urgent care regarding a severe headache in order to

receive treatment before leaving. Tr. 679. Further, Plaintiff’s ability to take occasional vacations

and receiving urgent care treatment to relieve a severe migraine do not conflict with Dr.

Herring’s opinions that Plaintiff has chronic headaches and migraines not effectively treated by

medication. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) ( “This court has repeatedly

asserted that the mere fact that a plaintiff has carried on certain daily activities . . . does not in

any way detract from her credibility as to her overall disability.” (internal quotations and citation

omitted)). Plaintiff’s vacations included trips to visit family in Florida, a cabin vacation in

Southern Oregon in August 2019, and to Hawaii. Tr. 29. The record does not indicate that

Plaintiff’s headaches ceased during these vacations, that Plaintiff was abnormally active or more

active on these vacations, nor that Plaintiff discontinued her regular medications or treatments

during trips. Tr. 679 (Dr. Herring noted that “a week after stopping indomethacin . . . she began

to experience an unrelenting headache which ultimately required a trip to urgent care after a call

here. She is back to having some degree of headache on a daily basis . . . .”); Tr. 10 (Plaintiff’s

husband stating that she “takes prescription drugs and muscle relaxers to get her on a plane and

remain comfortable . . . . There is always downtime and I . . . plan and do everything to make it

as easy as possible on [Plaintiff] . . . . Her job is to rest, soak up the warm[th] and heal which her

doctors support and encourage.”). The record indicates that warmth, including trips to warmer

climates, made Plaintiff more comfortable regarding her pain symptoms. Tr. 10, 11 97, 494,

1206, 2538 (“When she travelled to Florida for 2 weeks she felt better immediately.”). The ALJ

acknowledged this by including a limitation to “avoid even moderate exposure to extreme cold”

in Plaintiff’s RFC. Tr. 24. Because the ALJ failed to provide substantial evidence to support

finding Dr. Herring’s opinions unpersuasive, the Court finds the ALJ erred.

III. Listing 11.02

Plaintiff argues the ALJ erred by failing to address her migraines under Listing 11.02. Pl.

Br. 1. Defendant responds that the ALJ was not required to articulate or explain her reasoning in

determining that Plaintiff’s migraines did not equal Listing 11.02, and Plaintiff did not provide

evidence “to overcome the strong presumption that the ALJ did exactly what she said,” which

was to consider the evidence pursuant to the Social Security Rulings. Def. Br. 6.

If a claimant meets or medically equals a listed impairment at step three of the sequential

analysis, she is presumed disabled regardless of age, education, or work experience. 20 C.F.R. §

404.1520(a)(4)(iii), (d). An impairment, or combination of impairments, is medically equivalent

to a listing “if it is at least equal in severity and duration to the criteria of any listed impairment,”

considering, “all evidence in [the] case record about [the] impairment(s) and its effects on [the

claimant] that is relevant[.]” 20 C.F.R. § 404.1526(a), (c). Finally, “the claimant’s illnesses ‘must

be considered in combination and must not be fragmentized in evaluating their effects.’” Lester

v. Chater, 81 F.3d 821, 829 (9th Cir.1995) (quoting Beecher v. Heckler, 756 F.2d 693, 694–95

(9th Cir. 1985)). “Listed impairments are purposefully set at a high level of severity because ‘the

listings were designed to operate as a presumption of disability that makes further inquiry

unnecessary.’” Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir. 2013) (quoting Sullivan v.

Zebley, 493 U.S. 521, 531 (1990)). “Listed impairments set such strict standards because they

automatically end the five-step inquiry, before residual functional capacity is even considered.”

Id.

The ALJ provided no analysis of Listing 11.02B despite finding that Plaintiff’s migraines

constituted a severe impairment. Tr. 21. Rather, in discussing the listed impairments and

Plaintiff’s headaches, the ALJ simply writes: “The evidence also does not satisfy listing 11.02,

which was considered per SSR 19-49.” Tr. 22.

The ALJ erred by failing to discuss whether Plaintiff’s migraines met or equaled Listing

11.02B after finding migraines were a severe impairment. See Jones v. Comm'r of Soc. Sec., No.

1:19-CV-00109-REB, 2020 WL 7029143, at *5 (D. Idaho Nov. 30, 2020) (concluding that a

finding that the plaintiff's migraines were a severe impairment “coupled with the SSA's ...

direction on analyzing migraine headaches vis à vis Listing 11.02, establishes that the ALJ erred

in evaluating Petitioner's migraine headaches at step three of the sequential process by not

considering Listing 11.02”); Rader v. Comm'r of Soc. Sec., No. 2:17-CV-00131-CWD, 2018 WL

4087988, at *4 (D. Idaho Aug. 27, 2018) (same); Despinis v. Comm'r Soc. Sec. Admin., No.

2:16-CV-01373-HZ, 2017 WL 1927926, at *3 (D. Or. May 10, 2017) (same). The “ALJ must

evaluate the relevant evidence before concluding that a claimant's impairments do not meet or

equal a listed impairment.” Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). The ALJ's

conclusory statement that “the evidence fails to demonstrate that the claimant's headaches

medically equal a listing” is not sufficient. See id. (“A boilerplate finding is insufficient to

support a conclusion that a claimant's impairment does not do so.”). This is especially so where,

as here, the body of the ALJ's opinion lacks a robust discussion of Plaintiff's headaches. Thus,

the ALJ committed harmful error by not discussing Listing 11.02. See Brown-Hunter v. Colvin,

806 F.3d 487, 494 (9th Cir. 2015) (citations omitted) (an error is harmless if it is

“inconsequential to the ALJ's ultimate nondisability determination” or if, despite any legal error,

“the agency's path may reasonably be discerned”).

In addition, substantial evidence in the record supports the conclusion that Plaintiff

equals the requirements for Listing 11.02. There is no medical listing for migraines or headaches.

However, Listing 11.02 is the appropriate listing for an equivalence analysis. SSR 19-4p

instructs the ALJ on how to evaluate whether a claimant’s migraines are equal in severity and

duration to the criteria in Paragraph B of Listing 11.02. It states:

Paragraph B of listing 11.02 requires dyscognitive seizures occurring at least once

a week for at least 3 consecutive months despite adherence to prescribed treatment.

To evaluate whether a primary headache disorder is equal in severity and duration

to the criteria in 11.02B, we consider: a detailed description from an AMS of a

typical headache event, including all associated phenomena (for example,

premonitory symptoms, aura, duration, intensity, and accompanying symptoms);

the frequency of headache events; adherence to prescribed treatment; side effects

of treatment (for example, many medications used for treating a primary headache

disorder can produce drowsiness, confusion, or inattention); and limitations in

functioning that may be associated with the primary headache disorder or effects of

its treatment, such as interference with activity during the day (for example, the

need for a darkened and quiet room, having to lie down without moving, a sleep

disturbance that affects daytime activities, or other related needs and limitations).

SSR 19-4p at 4.

Plaintiff tracked her headaches using a phone app recommended by her doctors, and her

records report headaches lasting for hours to multiple days for more than half of the month. Tr.

489, 679, 685, 694-95, 719, 761, 781, 898-99, 904, 907, 916, 922, 965-66, 968, 3007. Plaintiff’s

records from her physicians establish that her migraines include photophobia, phonophobia,

sharp pain, abnormal smells, fatigue, and pulsing and “aura type headaches” across her head. Tr.

691, 697, 700-01, 707, 711, 883-84, 898-901, 905-08, 913, 919-20, 922-26, 2048, 2050. Her

migraines were noted by physicians during physical examinations on several occasions. Tr. 894,

906, 961, 968, 2009, 1417, 2043-44, 2050-51, 2058, 2282, 2285. Plaintiff’s treatment included

Aimovig, Dexamathasone, and Imitrex, and her providers noted no noncompliance by Plaintiff.

Tr. 826, 830-34, 840-41, 864, 891-92, 898-99, 902, 909, 959, 2040, 2061, 2270, 2287, 2438.

Plaintiff’s medications caused grogginess, drowsiness, difficulty concentrating, and

oversleeping. Tr. 307, 322, 324, 327, 329, 343-45, 487, 528, 748, 1402, 1418, 2014, 2030, 2094,

2487, 2663, 2880. Her pain levels varied from moderately severe to severe. 679, 968, 2270,

2880, 2887. She reported needing to retire to a darkened room with little to no sound, being

unable to drive while having a migraine, and requiring frequent breaks or naps during the day.

Tr. 677, 828, 842, 849, 856, 865, 898-99, 959-60, 968, 1417-18, 1451, 1463, 1470, 1483, 1485,

1496, 1557, 1630, 1641, 1708, 1772, 1945, 2013, 2042, 2048, 2070, 2265, 2282, 2285, 2422,

2689, 2695, 2722, 2730, 2880. Accordingly, the record demonstrates that Plaintiff’s impairment

satisfies paragraph B of Listing 11.02.

IV. Remand

The parties dispute whether this case should be remanded for further proceedings or

immediate payment of benefits. Except in rare circumstances, remand for further proceedings is

the appropriate course of action. Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099–

1100 (9th Cir. 2014). To determine which type of remand is appropriate, the Ninth Circuit uses a

three-part test. Garrison, 759 F.3d at 1020; see also Treichler v. Comm’r, 775 F.3d 1090, 1100–

01 (2014) (“credit-as-true” rule has three steps). First, the ALJ must fail to provide legally

sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion.

Garrison, 759 F.3d at 1020. Second, the record must be fully developed, and further

administrative proceedings would serve no useful purpose. Id. Third, if the case is remanded and

the improperly discredited evidence is credited as true, the ALJ would be required to find the

claimant disabled. Id. To remand for an award of benefits, each part must be satisfied. Id.; see

also Treichler, 775 F.3d at 1101 (When all three elements are met, “a case raises the ‘rare

circumstances’ that allow us to exercise our discretion to depart from the ordinary remand

rule.”). The “ordinary remand rule” is the proper course except in rare circumstances. Treichler,

775 F.3d at 1101.

Remand for payment of benefits is the proper course in this case. As discussed above in

Part III, the record establishes that Plaintiff meets the requirements for Listing 11.02. The record

is fully developed on this issue, and there are no conflicts in the record. Because evidence

demonstrates that Plaintiff meets Listing 11.02B, she is “presumed disabled, and no further

inquiry is necessary.” Baxter v. Sullivan, 923 F.2d 1391, 1395 (9th Cir. 1991). Remand for

additional proceedings would serve no purpose and “would needlessly delay effectuating the

primary purpose of the Social Security Act,” which is “to give financial assistance to disabled

persons. . . .” Holohan v. Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001). Accordingly, the

Court reverses the Commissioner’s decision and remand for an immediate award of benefits.

CONCLUSION

The Commissioner’s decision is REVERSED and REMANDED for immediate payment

of benefits.

IT IS SO ORDERED.

Dated: _______A__u_g_u_s_t_ 3_1_,_ _2_0_2_3_______.

MARCO A. HERNÁNDEZ

United States District Judge