# Hankinson v. Commissioner Social Security Administration

> District Court, D. Oregon · May 13, 2024

URL: https://www.frixlaw.com/law-library/cases/10397414

## Case

- **Court:** District Court, D. Oregon
- **Decided:** May 13, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10397414

## How later opinions describe it (automated extraction)

- holding that a reviewing court may not affirm an agency ruling for reasons not articulated by the agency

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

WESLEY H.,1 Case No. 3:23-cv-00752-SB

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,

Defendant.

BECKERMAN, U.S. Magistrate Judge.
Wesley H. (“Plaintiff”) brings this appeal challenging the Commissioner of Social
Security’s (“Commissioner”) denial of his application for Supplemental Security Income (“SSI”)
under Title XVI of the Social Security Act. The Court has jurisdiction pursuant to
42 U.S.C. §§ 405(g) and 1383(c)(3), and the parties have consented to the jurisdiction of a
magistrate judge pursuant to 28 U.S.C. § 636(c). For the reasons explained below, the Court

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.
reverses the Commissioner’s decision because it is based on harmful legal error and not
supported by substantial evidence.
STANDARD OF REVIEW
The district court may set aside a denial of benefits only if the Commissioner’s findings
are “not supported by substantial evidence or based on legal error.” Bray v. Comm’r of Soc. Sec.

Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880,
882 (9th Cir. 2006)). Substantial evidence is defined as “more than a mere scintilla [of evidence]
but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995)).
The district court “cannot affirm the Commissioner’s decision ‘simply by isolating a
specific quantum of supporting evidence.’” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir.
2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). Instead, the district court
must consider the entire record, weighing the evidence that both supports and detracts from the
Commissioner’s conclusions. Id. Where the record as a whole can support either the grant or

denial of Social Security benefits, the district court “may not substitute [its] judgment for the
[Commissioner’s].” Bray, 554 F.3d at 1222 (quoting Massachi v. Astrue, 486 F.3d 1149, 1152
(9th Cir. 2007)).
BACKGROUND
I. PLAINTIFF’S APPLICATION
Plaintiff was born in January 1990, making him thirty years old on November 23, 2020,
the day he protectively filed his SSI application (and his amended alleged disability onset date).2

2 “[T]he earliest an SSI claimant can obtain benefits is the month after which he filed his
application[.]” Schiller v. Colvin, No. 1:12-cv-00771-AA, 2013 WL 3874044, at *1 n.1 (D. Or.
(Tr. 35, 73.) Plaintiff is a high school graduate who has past relevant work experience as a
photocopy machine operator. (Id. at 22, 304.) In his application for benefits, Plaintiff alleged
disability due to “memory problems, diabetes, [and] reading and writing problems.” (Id. at 73.)
The Commissioner denied Plaintiff’s application initially and upon reconsideration, and

on November 17, 2021, Plaintiff requested a hearing before an Administrative Law Judge
(“ALJ”). (Id. at 79, 98, 139-153.) Plaintiff and a vocational expert (“VE”) appeared by telephone
and testified at an administrative hearing on April 14, 2022. (Id. at 29-68.) On May 17, 2022, the
ALJ issued a written decision denying Plaintiff’s application. (Id. at 13-28.)
On March 23, 2023, the Appeals Council denied Plaintiff’s request for review, making
the ALJ’s written decision the final decision of the Commissioner. (Id. at 1-7.) Plaintiff now
seeks judicial review of the ALJ’s decision.
II. THE SEQUENTIAL PROCESS
A claimant is considered disabled if the claimant is 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). “Social Security Regulations set out a five-step sequential
process for determining whether an applicant is disabled within the meaning of the Social
Security Act.” Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011) (citing
20 C.F.R. § 404.1520). Those five steps are: (1) whether the claimant is engaged in substantial
gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment

July 23, 2013) (citation omitted). As a result, the ALJ considered whether Plaintiff was disabled
as of November 23, 2020, the day he protectively filed his SSI application. (See Tr. 24, finding
that Plaintiff has not been disabled “since November 23, 2020, the date the application was
filed”).
meets or equals a listed impairment; (4) whether the claimant can return to any past relevant
work; and (5) whether the claimant can perform other work that exists in significant numbers in
the national economy. Id. at 724-25.
The claimant bears the burden of proof for the first four steps. See Bustamante v.

Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the burden at any
of those steps, the claimant is not disabled. See id. at 954. The Commissioner bears the burden of
proof at step five, where the Commissioner must show the claimant can perform other work that
exists in significant numbers in the national economy, “taking into consideration the claimant’s
residual functional capacity, age, education, and work experience.” Tackett, 180 F.3d at 1100
(citing 20 CFR § 404.1560(b)(3)). If the Commissioner fails to meet this burden, the claimant is
disabled. See Bustamante, 262 F.3d at 954.
III. THE ALJ’S DECISION
The ALJ applied the five-step sequential evaluation process to determine if Plaintiff is
disabled. (Tr. 18-24.) At step one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since November 23, 2020, his amended alleged disability onset date.

(Id. at 18.) At step two, the ALJ determined that Plaintiff suffered from the following severe,
medically determinable impairments: “osteoarthritis, diabetes mellitus with retinopathy, [and]
learning disorder.” (Id.) At step three, the ALJ concluded that Plaintiff did not have an
impairment that meets or medically equals a listed impairment. (Id.)
The ALJ then found that Plaintiff had the residual functional capacity (“RFC”) to
perform light work, subject to these limitations: (1) Plaintiff can stand or walk for a combined
total of four hours, (2) Plaintiff can sit for six hours, (3) Plaintiff can occasionally climb ramps
and stairs, and can never climb ladders, ropes, or scaffolds, (4) Plaintiff can occasionally
balance, kneel, crouch, crawl, and stoop, (5) Plaintiff is limited to simple, routine work in a
workplace with no more than occasional workplace changes, and (6) Plaintiff should have no
exposure to hazards. (Id. at 20.) At step four, the ALJ concluded that Plaintiff is able to perform
his past relevant work as a photocopy machine operator. (Id. at 22-23.) Additionally, at step five,

the ALJ determined that a significant number of jobs existed in the national economy that
Plaintiff could perform, including work as a cashier II, marker, and routing clerk. (Id. at 23.)
DISCUSSION
In this appeal, Plaintiff argues that the ALJ committed harmful error by formulating an
RFC that failed adequately to account for Plaintiff’s limited ability to read. (Pl.’s Opening Br.
(“Pl.’s Br.”) at 4-9, ECF No. 10.) Plaintiff also argues the ALJ failed to give specific, clear, and
convincing reasons for rejecting Plaintiff’s testimony regarding the functional impact of his
osteoarthritis and his need for a cane. (Id. at 9-13.)
As explained below, the Court concludes that the ALJ provided legally sufficient reasons
for discounting Plaintiff’s testimony about his osteoarthritis and need for a cane, but erred by
failing to address in the RFC Plaintiff’s limited ability to read. The Court therefore reverses the

Commissioner’s decision.
I. SUBJECTIVE SYMPTOM TESTIMONY
A. Applicable Law
The Ninth Circuit has “established a two-step analysis for determining the extent to
which a claimant’s symptom testimony must be credited[.]” Trevizo v. Berryhill, 871 F.3d 664,
678 (9th Cir. 2017). “First, the ALJ must determine whether the claimant has presented objective
medical evidence of an underlying impairment which could reasonably be expected to produce
the pain or other symptoms alleged.” Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014)
(simplified). Second, “[i]f the claimant meets the first test and there is no evidence of
malingering, the ALJ can only reject the claimant’s testimony about the severity of the
symptoms if she gives specific, clear and convincing reasons for the rejection.” Ghanim v.
Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (simplified).
B. Analysis
There is no evidence of malingering here and the ALJ determined that Plaintiff provided

objective medical evidence of underlying impairments which might reasonably produce the
symptoms alleged. (See Tr. 20, the ALJ found that Plaintiff’s “medically determinable
impairments could reasonably be expected to cause some of the alleged symptoms”). The ALJ
was therefore required to provide clear and convincing reasons for discounting Plaintiff’s
symptom testimony. See Ghanim, 763 F.3d at 1163.
1. Plaintiff’s Reading Limitations
Plaintiff argues that the ALJ erred because the RFC failed to account for Plaintiff’s
limited ability to read. (Pl.’s Br. at 4-9.) The Court agrees.
The ALJ concluded that Plaintiff’s learning disability was a severe impairment. (Tr. 18.)
However, the ALJ’s only mention of Plaintiff’s limited ability to read was a summary of

evidence discussing that Plaintiff was diagnosed with a learning disorder including an
impairment in reading. (Id. at 20-21.) The ALJ never explicitly rejected Plaintiff’s allegations
about his reading limitations. See Smith v. Kijakazi, 14 F.4th 1108, 1112 (9th Cir. 2021) (“To
ensure that our review of the ALJ’s credibility determination is meaningful, and that the
claimant’s testimony is not rejected arbitrarily, we require the ALJ to specify which testimony
she finds not credible, and then provide clear and convincing reasons, supported by evidence in
the record, to support that credibility determination.” (quoting Brown-Hunter v. Colvin, 806 F.3d
487, 489 (9th Cir. 2015))).
The Commissioner points to the opinion of Robin Jewett, PA, who concluded that “in
spite of having some difficulty with reading and math,” Plaintiff has “average intelligence” and
showed skills that “translate very well to occupational settings.” (Def.’s Br. at 4, ECF No. 12,
citing Tr. 1082.) Although the ALJ cited to PA Jewett’s opinion that Plaintiff’s “ability to

understand, retain[,] and follow instructions was intact” (Tr. 22, citing Tr. 1082-83), the ALJ did
not otherwise rely on PA Jewett’s opinion to discount Plaintiff’s testimony about his inability to
read. (Id.) The Court may not affirm the ALJ’s opinion for reasons not articulated in the opinion.
See SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (holding that a reviewing court may not
affirm an agency ruling for reasons not articulated by the agency).
Further, even if the ALJ had cited PA Jewett’s opinion that Plaintiff has “average
intelligence” and showed skills that “translate very well to occupational settings,” those aspects
of PA Jewett’s opinion do not directly address Plaintiff’s limited ability to read. On the contrary,
PA Jewett acknowledged Plaintiff’s “difficulty with reading and math” (Tr. 1082), but the ALJ
did not include those limitations in Plaintiff’s RFC. In addition, the reasons the ALJ listed for

finding PA Jewett’s opinion persuasive—Plaintiff’s excellent vocabulary, no trouble following
instructions, intact judgment, normal thought process, operating an insulin pump, and managing
his household (id. at 22, citing Tr. 1081-83)—are not inconsistent with the record evidence of
Plaintiff’s limited ability to read.
Absent a legally supportable rejection of Plaintiff’s allegations regarding his limited
ability to read, the ALJ was required to accommodate his reading limitations in the RFC or
explain why not. The ALJ erred by failing to do either.3 Further, the ALJ’s error was not

3 At the hearing, Plaintiff’s attorney asked the VE about literacy accommodations in the
workplace, and the VE testified that “there’s a lot of jobs where people are required to read, and
they don’t—aren’t able to and generally the employer would work with the worker in that
harmless, as the occupations the VE identified that Plaintiff could perform required reading at a
rate of either 95-120 or 190-215 words per minute. (See Pl.’s Br. at 7, citing the Dictionary of
Occupational Titles; see also Def.’s Br. at 3-4, arguing that the ALJ appropriately discounted
Plaintiff’s testimony about his reading limitations and not addressing the VE’s testimony or the

reading requirements for each occupation.)
Accordingly, the Court finds that the ALJ erred by failing to address in the RFC
Plaintiff’s limited ability to read.
2. Plaintiff’s Osteoarthritis and Cane Use
Plaintiff also argues that the ALJ erred by failing to give specific, clear, and convincing
reasons for discounting Plaintiff’s allegations about the functional impacts of his osteoarthritis,
including his need for a cane. (Pl.’s Br. at 9-13.) In discounting Plaintiff’s subjective symptom
testimony, the ALJ found that the record supports some limitations from osteoarthritis, but
Plaintiff’s “allegations concerning the degree of walking, sitting, and lifting limitations and need
for a cane are not wholly consistent with the record.” (Tr. 21.)

The ALJ acknowledged that Plaintiff experienced hip pain after walking for three to four
hours, and that x-rays showed abnormally shaped femoral heads with increased sclerosis of the
top of the acetabulum but without substantial joint space narrowing. (Id., citing Tr. 619, 622.)
The ALJ also acknowledged that Plaintiff reported physical therapy was not effective in

regard.” (Tr. 67.) It is well settled that the Social Security Administration (“SSA”), “for SSDI
purposes, . . . does not take the possibility of ‘reasonable accommodation’ into account[.]”
Cleveland v. Policy Mgmt. Sys. Corp. 526 U.S. 795, 803 (1999) (explaining that “the SSA
receives more than 2.5 million claims for disability benefits each year; its administrative
resources are limited; the matter of ‘reasonable accommodation’ may turn on highly disputed
workplace-specific matters; and an SSA misjudgment about that detailed, and often fact-specific
matter would deprive a seriously disabled person of the critical financial support the statute seeks
to provide”).
relieving his hip pain. (Id., citing Tr. 1104.) However, the ALJ concluded that there “is no
evidence the cane was prescribed or medically necessary[,]” and that other than being prescribed
medication, there is no evidence of further treatment for his osteoarthritis. (Id.) The ALJ
concluded that Plaintiff’s “minimal treatment is inconsistent with the degree of limitations

alleged.” (Id.)
Plaintiff primarily takes issue with the ALJ’s statement that there “is no evidence the
cane was prescribed or medically necessary.” (Pl.’s Br. at 11.) Plaintiff argues that his primary
care provider, Vicki Swanson, FNP, described the cane as medically necessary. (Id. at 12, citing
Tr. 1185.) Plaintiff further argues that “[t]he ALJ’s bald assertion that the cane was not
medically necessary was at odds with the evidence in the record.” (Id.) Plaintiff emphasizes that
there are multiple treatment notes in the record stating that Plaintiff used a cane to ambulate,
experienced falls despite using a cane, and that he was often observed to walk with an antalgic
gait. (Id. at 11-13, citing Tr. 610, 1079.)
The Social Security regulations provide that the use of a hand-held assistive device such

as a cane is a functional limitation only if it is medically required. See SSR 96-9p, 1996 WL
374185, at *7 (“Medically required hand-held assistive device: To find that a hand-held assistive
device is medically required, there must be medical documentation establishing the need for a
hand-held assistive device to aid in walking or standing, and describing the circumstances for
which it is needed (i.e., whether all the time, periodically, or only in certain situations; distance
and terrain; and any other relevant information). The adjudicator must always consider the
particular facts of a case. For example, if a medically required hand-held assistive device is
needed only for prolonged ambulation, walking on uneven terrain, or ascending or descending
slopes, the unskilled sedentary occupational base will not ordinarily be significantly eroded.”);
see also Quintero v. Colvin, No. 1:13-cv-00478-SKO, 2014 WL 4968269, at *10 (E.D. Cal. Sept.
29, 2014) (“The use of a cane or other ‘hand-held assistive device’ is probative of a claimant’s
functional limitations only if it is medically required.”); see also Howze v. Barnhart, 53 F. App’x
218, 222 (3d Cir. 2002) (finding that a physician’s report indicating that a hand-held assistive

device was “medically required for ambulation” and including a “‘script’ for a cane” did not
establish medical necessity because the evidence “was insufficient to support a finding that his
cane was medically necessary” under SSR 96-9p).
Plaintiff has not pointed to any evidence that describes the specific circumstances in
which he is medically required to use a cane. FNP Swanson completed a treating source
statement on April 1, 2022, and recommended that Plaintiff use a cane to ambulate “due to
osteoarthritis of his hips.” (Tr. 1185.) However, FNP Swanson also noted that imaging studies
from February 2021 and July 2021 showed no osteoarthritis (id.), suggesting that FNP Swanson
based her opinion on Plaintiff’s subjective reports. When asked to describe the circumstances
under which Plaintiff required a cane for ambulation, FNP Swanson stated that Plaintiff should

use his cane “as needed for pain and ambulation.” (Id.) However, FNP Swanson did not indicate
the duration, distance, terrain, or any other relevant information with respect to Plaintiff’s
medically-required cane usage. (See id.)
Plaintiff is correct that the record includes several references to his use of a cane, but
those references are all traceable to Plaintiff’s self-reports and to his medical sources’
observations that he presented with an assistive device. This evidence does not satisfy SSR 96-
9p. See Sou v. Saul, 799 F. App’x 563, 564-65 (9th Cir. 2020) (holding that the plaintiff failed to
demonstrate that a cane was medically required where the evidence “did not describe the
circumstances for which a cane was needed”); see also Downyell v. Kijakazi, No. 2:20-cv-07312-
SP, 2022 WL 971335, at *3 (C.D. Cal. Mar. 31, 2022) (holding that a medical professional’s
opinion that the plaintiff “has to use a cane for ambulation” was insufficient because it did not
indicate duration, distance, terrain, or any other relevant information, and therefore did not
satisfy SSR 96-9p); Dean N. v. Saul, No. CV 18-09840-DFM, 2020 WL 430962, at *2 (C.D. Cal.

Jan. 28, 2020) (“Plaintiff was required to establish both need and the specific circumstance in
which he needs the cane before the ALJ could include the usage of a cane in his RFC.”); Flores
v. Colvin, No. 1:14-cv-02096-SKO, 2016 WL 2743228, at *14 (E.D. Cal. May 11, 2016)
(holding that references to the plaintiff’s cane traceable to his own self-reports and to his medical
source’s observations were insufficient to demonstrate medical necessity); Cashin v. Astrue, No.
EDCV 09-161 JC, 2010 WL 749884, at *11 (C.D. Cal. Feb. 24, 2010) (holding that a doctor’s
observation of the plaintiff’s use of a cane during an examination did “not constitute an objective
finding that plaintiff’s cane was medically required”); compare Christa W. v. Kijakazi, No. 1:22-
cv-01293-SB, 2023 WL 6972455, at *2-4 (D. Or. Oct. 23, 2023) (including a cane limitation in
the RFC where a medical opinion stated that “Plaintiff must use a cane when engaged in

occasional standing and walking”).
For these reasons, the Court concludes that the ALJ did not err in discounting Plaintiff’s
symptom testimony regarding his osteoarthritis and need for a cane.
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CONCLUSION
For the reasons stated, the Court REVERSES the Commissioner’s decision and
REMANDS this case for further administrative proceedings consistent with this opinion.*
IT IS SO ORDERED.
DATED this 13th day of May, 2024.
STUMCT. athena
HON. STACIE F. BECKERMAN
United States Magistrate Judge

* Plaintiff acknowledges that remanding for further proceedings—as opposed to
remanding for an award of benefits—is the appropriate remedy here. (See Pl.’s Br. at 13-15; Pl.’s
Reply Brief at 6-7, ECF No. 13.)

PAGE 12 —- OPINION AND ORDER

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10397414. Public record. Not legal advice.