# Runions v. Kijakazi

> District Court, E.D. Washington · March 17, 2023

URL: https://www.frixlaw.com/law-library/cases/10698196

## Case

- **Court:** District Court, E.D. Washington
- **Decided:** March 17, 2023
- **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/10698196

## How later opinions describe it (automated extraction)

- noting old evidence was 22 probative as to whether the claimant’s condition had worsened over time

## Opinion text

1 EASTERU N. S D. I F SDI TL I RSE ITD CR TI IN C O TT F H C WE O AU SR HT I NGTON

2 Mar 17, 2023

3 SEAN F. MCAVOY, CLERK
4 UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
5

6 ROBERT R.,1 No. 2:21-cv-0340-EFS

7 Plaintiff,
ORDER GRANTING PLAINTIFF’S
8 v. SUMMARY-JUDGMENT MOTION,
DENYING DEFENDANT’S
9 KILOLO KIJAKAZI, Acting SUMMARY-JUDGMENT MOTION,
Commissioner of Social Security, AND REMANDING FOR FURTHER
10 PROCEEDINGS
Defendant.
11
12
13 Plaintiff Robert R. appeals the denial of benefits by the Administrative Law
14 Judge (ALJ). Because substantial evidence does not support the ALJ’s
15 interpretation of key medical evidence, the Court reverses the ALJ’s decision and
16 remands this matter for further proceedings.
17 ///
18 //
19 /
20

21
1 For privacy reasons, Plaintiff is referred to by first name and last initial or as
22
“Plaintiff.” See LCivR 5.2(c).
23
1 I. Five-Step Disability Determination
2 A five-step evaluation determines whether a claimant is disabled.2 Step one

3 assesses whether the claimant is engaged in substantial gainful activity.3 Step two
4 assesses whether the claimant has a medically severe impairment or combination
5 of impairments that significantly limit the claimant’s physical or mental ability to
6 do basic work activities.4 Step three compares the claimant’s impairment or
7 combination of impairments to several recognized by the Commissioner to be so
8 severe as to preclude substantial gainful activity.5 Step four assesses whether an
9 impairment prevents the claimant from performing work he performed in the past

10 by determining the claimant’s residual functional capacity (RFC).6 Step five
11 assesses whether the claimant can perform other substantial gainful work—work
12 that exists in significant numbers in the national economy—considering the
13 claimant’s RFC, age, education, and work experience.7
14
15

16

17
2 20 C.F.R. § 404.1520(a).
18
3 Id. § 404.1520(a)(4)(i), (b).
19
4 Id. § 404.1520(a)(4)(ii), (c).
20
5 Id. § 404.1520(a)(4)(iii), (d).
21
6 Id. § 404.1520(a)(4)(iv).
22
7 Id. § 404.1520(a)(4)(v), (g).
23
1 II. Background
2 At issue is Plaintiff’s application for disability benefits under Title 2. This is

3 not the first time Plaintiff applied for Title-2 disability benefits.
4 1. Prior Unfavorable Decision
5 Plaintiff previously applied for disability benefits in 2016. In June 2018, an
6 ALJ issued a decision assessing Plaintiff with the severe impairments of seizure
7 disorder, asthma, and COPD, but finding he could nonetheless perform past
8 relevant work as a contract administrator, production superintendent, and project
9 director.8 Plaintiff appealed the unfavorable decision. In October 2019, the

10 District Court for the Western District of Washington affirmed the June 2018
11 decision, making it administratively final.9
12 2. Plaintiff’s Current Application
13 In June 2019, while his appeal was still pending, Plaintiff filed a new
14 application for benefits under Title 2, claiming disability based on back injury,
15 chronic pain, epilepsy, depression, anxiety, bilateral shoulder condition/pain,

16 tricompartmental osteoarthritis of right knee, chronic obstructive pulmonary
17 disease (COPD), forgetfulness, and memory loss.10 Plaintiff initially alleged an
18
19

20
8 AR 128–39.
21
9 AR 156–66. See also AR 16.
22
10 See AR 371.
23
1 onset date of November 11, 2015.11 After the June 2018 decision became final,
2 however, Plaintiff amended his onset date to July 1, 2018.12 The agency denied his

3 current application initially and on reconsideration,13 and Plaintiff requested a
4 hearing before an ALJ.
5 3. ALJ Hearings & Plaintiff’s Symptom Reports
6 In November 2020, ALJ Lori L. Freund held a telephonic hearing at which
7 medical expert Stephen Andersen, MD, Plaintiff, and Plaintiff’s wife presented
8 testimony.14 Then, in March 2021, the ALJ held a supplemental hearing by
9 telephone, receiving testimony from medical expert Ricardo Buitrago, PsyD,

10 Plaintiff, Plaintiff’s wife, and a vocational expert.15
11 Through their testimony, as well as through function reports and
12 questionnaires, Plaintiff and his wife described the symptoms of what Plaintiff
13 called his “grand mal seizures.”16 The larger seizures involved prolonged,
14

15
11 AR 367.
16
12 AR 51–52.
17
13 AR 168–83 (initial denial); AR 184–98 (denial on reconsideration).
18
14 AR 47–86.
19
15 AR 87–124.
20
16 See AR 72, 74–75, 80–81 (Nov. 2020 hearing); AR 102, 104–07 (March 2021
21
supplemental hearing); AR 408–31 (Aug. 2019 function reports and seizure
22
questionnaires).
23
1 sometimes violent, shaking and could result in loss of consciousness, loss of bladder
2 control, and injury.17 Plaintiff indicated the larger seizures occurred only

3 occasionally but that when they did occur, they left him “[a]bsolutely, totally,
4 totally exhausted,” and they sometimes required hospitalization.18
5 Plaintiff and his wife also described what Plaintiff called his “small petit mal
6 seizures” (hereinafter referred to as “spells”).19 Plaintiff reported these smaller,
7 seizure-like spells, occurred approximately 20 times per day, and he said, “I lose
8 consciousness very brief, so brief I could be holding a conversation with somebody,
9 have one and . . . I know that within a blink that I’ve had one and lost

10 consciousness for that moment, and unless somebody knows, they would not know
11 that I had one.”20 Plaintiff testified, “[I]f I resume a conversation with somebody
12 . . . I act as though nothing has happened, although I forget completely the content
13 of our conversation and what is going on . . . .”21 And Plaintiff explained that when
14 this occurred, he would “try and assess” what had transpired based on context.
15

16
17 See AR 417, 421–22.
17
18 See AR 72, 74–75, 80–81 (Nov. 2020 hearing); AR 102, 104–07 (March 2021
18
supplemental hearing); AR 121–22 (Aug. 2019 seizures questionnaire filled out by
19
Plaintiff’s wife); AR 424–31 (Aug. 2019 function report filled out by Plaintiff’s wife).
20
19 See AR 72, 74–75, 80–81, 102, 104–07, 408–31.
21
20 AR 74–75.
22
21 AR 102.
23
1 Plaintiff’s wife added that she has observed Plaintiff’s spells, where “it looks
2 like he kind of spaces off . . . and has little jerky motions, and then afterwards, . . .

3 he’s tired. He’s kind of like disoriented and out of it and usually tired.”22 She
4 testified that Plaintiff’s smaller spells “happen pretty frequently” and that she
5 believed his memory to be compromised, saying, “he just doesn’t remember
6 anything.”23 Overall, Plaintiff’s wife reported that his seizures left him “[c]onfused
7 a lot of the time, forgetful, tired, [and] cranky.”24
8 4. The ALJ’s Decision
9 In April 2021, the ALJ issued a written decision again denying Plaintiff’s

10 disability application.25 As to the sequential disability analysis, the ALJ found:
11 • Plaintiff met the insured status requirements through June 30, 2019.
12 • Step one: Plaintiff had not engaged in substantial gainful activity from
13 the amended alleged onset date of July 1, 2018, through the date last
14 insured of June 30, 2019.26
15 //

16 /
17

18
22 AR 105–06.
19
23 AR 80–81.
20
24 AR 422.
21
25 AR 15–28.
22
26 AR 18.
23
1 • Step two: Plaintiff had the following medically determinable severe
2 impairments: psychogenic non-epileptic seizures, asthma, COPD,

3 degenerative joint disease of the left shoulder, and anterior cruciate
4 ligament (ACL) tear of the right knee, status post-surgical repair.
5 • Step three: Plaintiff did not have an impairment or combination of
6 impairments that met or medically equaled the severity of one of the
7 listed impairments.
8 • RFC: During the relevant period, Plaintiff had the RFC to perform light
9 work limited to jobs involving:

10 o lifting up to 20 pounds occasionally and up to 10 pounds frequently;
11
o standing and walking for up to 4 hours total in an 8-hour workday
with normal breaks;
12
o sitting for at least 6 hours in an 8-hour workday with normal breaks;
13 o never climbing ladders, ropes, or scaffolds;
14
o only occasionally stooping, kneeling, crouching, crawling, climbing
ramps and stairs, and balancing;
15
o only occasionally reaching overhead bilaterally;
16 o only occasionally pushing and pulling with the upper extremities;
17
o avoiding concentrated exposure to extreme cold and humidity;
o avoiding even moderate exposure to airborne particulates such as
18
fumes, odors, dust, et cetera and hazards;
19 o avoiding all unprotected heights; and
20
o avoiding the operational control of moving machinery.27

21

22
27 AR 21–22.
23
1 • Step four: Plaintiff—through the date last insured—was capable of
2 performing past relevant work as a contract administrator, production

3 superintendent, and project director.
4 • Step five: in addition to the above past relevant work, considering
5 Plaintiff’s RFC, age, education, and work history, Plaintiff could perform
6 work that existed in significant numbers in the national economy, such
7 as parking lot attendant, toll bridge attendant, and garment sorter.
8 In reaching her decision, the ALJ found the medical opinions of the
9 testifying medical experts, Dr. Andersen and Dr. Buitrago, to be very persuasive.

10 She also found the prior administrative medical findings persuasive. However, the
11 ALJ found a February 2018 medical opinion by Plaintiff’s treating provider, Ryan
12 McMeans, PA-C, as well as a February 2021 letter from Plaintiff’s treating
13 counselor, Kelly Norman, MA, to be unpersuasive.
14 The ALJ found Plaintiff’s medically determinable impairments could
15 reasonably be expected to cause some of the alleged symptoms, but that his

16 statements concerning the intensity, persistence, and limiting effects of those
17 symptoms were “not entirely consistent with the medical evidence and other
18 evidence in the record.”28
19 Plaintiff requested review of the ALJ’s decision by the Appeals Council,
20 which denied review. Plaintiff then appealed to this Court.
21

22
28 AR 23.
23
1 III. Standard of Review
2 A district court’s review of the Commissioner’s final decision is limited.29

3 The Commissioner’s decision is set aside “only if it is not supported by substantial
4 evidence or is based on legal error.”30 Substantial evidence is “more than a mere
5 scintilla but less than a preponderance; it is such relevant evidence as a reasonable
6 mind might accept as adequate to support a conclusion.”31 Because it is the role of
7 the ALJ to weight conflicting evidence, the Court upholds the ALJ’s findings “if
8 they are supported by inferences reasonably drawn from the record.”32 Further,
9 the Court may not reverse an ALJ decision due to a harmless error—one that “is

10 inconsequential to the ultimate nondisability determination.”33
11

12
29 42 U.S.C. § 405(g).
13
30 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012).
14
31 Id. at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)).
15
32 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). See also Lingenfelter v.
16
Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (The court “must consider the entire
17
record as a whole, weighing both the evidence that supports and the evidence that
18
detracts from the Commissioner’s conclusion,” not simply the evidence cited by the
19
ALJ or the parties.) (cleaned up); Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998)
20
(“An ALJ’s failure to cite specific evidence does not indicate that such evidence was
21
not considered[.]”).
22
33 Molina, 674 F.3d at 1115 (cleaned up).
23
1 IV. Analysis
2 Plaintiff argues that the ALJ (1) failed to properly apply Chavez and res

3 judicata, (2) improperly evaluated the medical evidence, (3) improperly discounted
4 Plaintiff’s symptom reports, and (4) improperly rejected his wife’s testimony.34
5 Plaintiff contends that without these errors, his RFC would have included
6 additional limitations related to his fatigue, forgetfulness, need to take extra
7 breaks, and likely rate of absenteeism. For the reasons discussed below, the Court
8 holds the ALJ reversibly erred by failing to adequately address Plaintiff’s
9 seizures/spells and the symptoms and limitations related thereto.

10 A. Res Judicata (Chavez): Plaintiff fails to show consequential error.
11 As an initial matter, Plaintiff argues that the ALJ improperly applied res
12 judicata under Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988), and AR 97-4(9).35
13 1. Legal Standard & Analysis
14 In Chavez, [the Ninth Circuit] observed that principles of res judicata
apply to administrative decisions regarding disability and impose an
15 obligation on the claimant, in instances where a prior ALJ has made a
finding of non-disability, to come forward with evidence of “changed
16 circumstances” in order to overcome a presumption of continuing non-
disability. [The court] also explained that a previous ALJ’s findings
17 concerning residual functional capacity, education, and work
experience are entitled to some res judicata consideration and such
18 findings cannot be reconsidered by a subsequent judge absent new
information not presented to the first judge.36
19

20
34 See generally ECF No. 15.
21
35 ECF No. 15 at 6–7.
22
36 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173 (9th Cir. 2008) (cleaned up).
23
1 Here, the ALJ expressly found there to be “changed circumstances that
2 rebut the Chavez presumption of continuing non-disability.”37 Even after this

3 initial rebuttal, however, the prior decision was still entitled to “some res judicata
4 consideration.”38 In such circumstances, an ALJ is still required to give effect to
5 certain prior findings—including those of the claimant’s RFC, education, work
6 experience, or “other finding required at a step in the sequential evaluation
7 process”—”unless there is new and material evidence relating to such a finding or
8 there has been a change in the law, regulations or rulings affecting the finding or
9 the method for arriving at the finding.”39

10 2. Legal Error
11 The Court agrees with Plaintiff that the ALJ legally erred to the extent she
12 relied on Chavez to “adopt[] the prior decision finding of the claimant having only
13 non-severe mental impairments based on there being no new and material
14 evidence as to the claimant’s mental functioning.”40 As Plaintiff points out, not
15 only did the record contain new evidence regarding his mental-health impairments,

16 but there were also subsequent revisions to the medical-evidence regulations that
17

18
37 AR 16.
19
38 See Chavez, 844 F.2d at 694.
20
39 Acquiescence Ruling 97-4(9) (S.S.A. Dec. 3, 1997) 1997 WL 742758 at *3
21
(emphasis added).
22
40 See AR 19 (“Pursuant to Chavez, the undersigned also adopts . . .”).
23
1 resulted in one of Plaintiff’s treating providers now being qualified as an acceptable
2 medical source.41 So, even if the ALJ reasonably interpreted the new evidence as

3 not being “material,” there had still been “a change in the law, regulations or
4 rulings affecting the finding or the method for arriving at the finding.”42
5 Though the ALJ erred in this respect, the Court need not determine whether
6 such error was consequential. As discussed below, reversal is already required for
7 other reasons.
8 B. Evidence of Seizures/Spells: Plaintiff shows consequential error.
9 In her decision, the ALJ relied extensively on the two testifying medical

10 experts: Stephen Andersen, MD, FACEP,43 and Ricardo Buitrago, PsyD. The ALJ
11 tied nearly every finding to their testimony, which she repeatedly found “very
12 persuasive.”44 Plaintiff argues that the ALJ erred in assessing the medical
13 evidence, asserting that Dr. Andersen’s and Dr. Buitrago’s opinions were “lacking
14 in consistency and supportability, as they are inconsistent with the findings and
15 opinions of [Plaintiff]’s treatment providers, including his treating neurologists.”45

16 Because the only potential prejudice that Plaintiff identifies relates to fatigue,
17

18
41 See ECF No. 15 at 6–7.
19
42 Acquiescence Ruling 97-4(9) 1997 WL 742758 at *3.
20
43 “FACEP” is short for Fellow of the American College of Emergency Physicians.
21
44 See AR 18–25.
22
45 ECF No. 15 at 18.
23
1 forgetfulness, a need to take extra breaks, and an increased rate of absenteeism
2 caused by his spells and/or larger seizures, the Court focuses on those issues.46

3 1. Dr. Anderson’s Testimony & Plaintiff’s Medical Records
4 At the initial hearing in November 2020, Dr. Anderson testified in relevant
5 part as follows:
6 Patient suffers from psychogenic non-epileptic seizures. These have
been worked up several times with EEG monitoring and video EEG
7 monitoring and a few different neurologic consultations which all
concluded these are nonepileptic or psychogenic seizures . . . . The
8 next recent neurologic exam is talking about weaning him off of any
seizure medication since these aren’t epileptic seizures. . . . [I]n
9 addition to EEGs, he’s had MRI of his brain, which was
unremarkable.47
10

11 Dr. Anderson then went on to reject epilepsy as a severe impairment, saying,
12 “Well, [Plaintiff]’s had these seizure like-activity, but now they decided after
13 extensive evaluation these are not epilepsy. It’s not epilepsy. It’s psychogenic.”48
14 Still, Dr. Anderson acknowledged that he was “not a psychiatrist or psychologist,”
15 and that this kind of psychogenic seizure (i.e., Plaintiff’s spells) “might be on the
16

17
46 See ECF No. 15 at 6, 20. The Court generally limits its review to only those
18
issues “which are argued specifically and distinctly.” Independent Towers v.
19
Washington, 350 F.3d 925, 929 (9th Cir. 2003); see also Carmickle v. Comm’r of Soc.
20
Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008).
21
47 AR 60.
22
48 AR 65.
23
1 psychiatric or mental health listing,” but that his testimony was limited to just
2 Plaintiff’s physical impairments.49

3 The very medical record that Dr. Anderson seemingly relied upon, however,
4 clearly indicate that Plaintiff suffered from epilepsy in addition to non-epileptic
5 spells.50 In late September 2019, after reviewing medical records that included
6 several prior EEG studies and an MRI of Plaintiff’s brain, treating neurologist
7 Laura Lynam, MD, assessed Plaintiff with a history of “multiple types” of events.51
8 She explained,
9 Larger seizures have included loss of consciousness, fall of standing,
generalized convulsion with or without tongue bite and incontinence.
10 Early on this had included associated shoulder dislocation. Clinically,
these events would be quite consistent with generalized tonic-clonic
11 seizure.
. . .
12 Small spells have been happening at a very high frequency in the long
term, uncontrolled despite polytherapy with Lamictal, lorazepam, and
13 Dilantin and including very brief lapse in awareness with a “hiccup”
in breathing. Differential diagnosis for this particular symptom . . .
14 may include nonepileptic symptoms versus combination of absence
and myoclonus versus a combination of both. Video EEG monitoring .
15 . . in March of 2018, did not definitively answer these questions . . .
[but] did clearly indicate a risk for a primary generalized epilepsy
16 based on interictal EEG findings that emerged at the end of the
recording.52
17

18
49 AR 63.
19
50 See, e.g., AR 804 (Aug. 2019: treating neurologist assessing Plaintiff as having
20
non-epileptic spells, epilepsy, and depression with anxiety).
21
51 AR 715–31.
22
52 AR 721.
23
1 Then, in early October 2019, after completing yet another multi-day
2 inpatient video EEG monitoring with no typical small spells or larger seizures

3 observed, neurologist Laura Hershkowitz, DO, similarly listed Plaintiff’s final
4 diagnoses on discharge as including “Generalized epilepsy without intractable
5 epilepsy” and “Convulsions, not otherwise specified.”53 Indeed, going back to
6 March 2018, Plaintiff’s examining and treating neurologists had consistently
7 distinguished between his larger seizures, which—based on the EEG results—
8 ”likely reflect[ed] the presence of an underlying primary generalized epilepsy,” and
9 Plaintiff’s smaller spells, which were found to be “most likely nonepileptic in

10 nature.”54
11

12
53 AR 728.
13
54 See, e.g., AR 504–05 (Mar. 2018); AR 623 (Aug. 2018); AR 626 (Dec. 2018);
14
AR 631 (March 2019); AR 804 (Aug. 2019). See also AR (Sept. 2019: Plaintiff
15
presenting to the emergency department for “seizure-like episode”; “He had
16
another brief seizure-like episode witnessed by EMS personnel, which was
17
characterized by unresponsiveness, tilting back of the head, generalized increased
18
muscle tone, and brief twitching motions, and lasted a few seconds.” “EMS states
19
the patient was then combative and agitated but was eventually calmer and
20
compliant after his wife convinced him he needed to visit the emergency
21
department. On initial EMS exam, the patient was noted to have generalized
22
weakness in the bilateral upper and lower extremities.”).
23
1 Dr. Andersen was seemingly under the impression that the most recent
2 testing indicated all of Plaintiff’s seizure-like symptoms were psychogenic in

3 nature. Such a conclusion is not supported by the longitudinal record. And
4 Dr. Andersen gave no testimony regarding epileptic seizures generally or the
5 difference between epileptic seizures versus nonepileptic, psychogenic spells.
6 2. Dr. Buitrago’s Testimony
7 At the March 2021 supplemental hearing, Dr. Buitrago testified that the
8 mental-health records he reviewed from the relevant period “generally have
9 [Plaintiff’s] mental status as consistently within normal limits.”55 Dr. Buitrago

10 therefore opined that Plaintiff had no functional limitations under the Paragraph B
11 criteria.56 When asked whether he saw treatment notes indicating Plaintiff was
12 experiencing “seizure-like episodes” between 10–30 times per day, Dr. Buitrago
13 said,
14 I noted a generalized epilepsy diagnosis. I did note that he had a
seizure disorder. I’m not sure how many he was experiencing, but
15 what I look at is as a result of his seizures how it’s affecting his
mental health functioning, so I’m not a medical doctor to assess for
16 the actual effects of the seizure, h[is] actual seizures. I’m just looking
mental health[-]wise how he is being affected.57
17
18

19
55 AR 99; see also AR 100.
20
56 AR 96. Importantly, Paragraph B findings do not amount to a RFC assessment,
21
which requires a more detailed analysis.
22
57 AR 97–98.
23
1 Dr. Buitrago explained that although he had reviewed at least some of the
2 treatment records created after the last date insured, he “didn’t take any notes

3 conceptualized from thereafter because the hearing notice only told [him] to go
4 through June 30, 2019.”58 This—along with the fact that Dr. Buitrago noted a
5 diagnosis for “generalized epilepsy” but omitted any diagnosis for psychogenic,
6 nonepileptic spells—suggest that Dr. Buitrago failed to account for the distinction
7 between Plaintiff’s larger, apparently epileptic seizures and his psychogenic spells.
8 When asked to assume that someone like Plaintiff was experiencing
9 psychogenic, “petit mal-like episodes” 10–20 times per day, Dr. Buitrago opined

10 that these small spells could theoretically interfere with a person’s ability to
11 maintain attention and concentration, but that in Plaintiff’s case, he “didn’t see
12 that in any of the records [he] reviewed.”59 Even so, Dr. Buitrago was not asked
13 about, and gave no testimony regarding, psychogenic seizures generally or their
14 potential symptoms, causes, or treatments. Nor did Dr. Buitrago indicate whether
15 the evidence of record was consistent with psychogenic seizures. Finally,

16 Dr. Buitrago did not offer any opinion as to whether psychogenic seizures could
17
18
19

20
58 AR 97.
21
59 AR 98; see also AR 99 (“[T]he mental records that I reviewed generally have his
22
mental status as consistently within normal limits[.]”).
23
1 reasonably be expected to cause Plaintiff’s alleged symptoms—specifically,
2 fatigue.60

3 3. The ALJ’s Findings & Consequential Error
4 Relying on the medical-expert testimony, the ALJ found “the claimant’s
5 seizure disorder consisted of psychogenic non-epileptic seizures,” and she therefore
6 found Plaintiff “has shown no medically determinable impairment of epilepsy.”61
7 As discussed above, however, the neurologists of record were apparently in
8

9
60 Though Dr. Buitrago did not indicate whether normal mental-status exams were
10
inherently inconsistent with someone suffering from psychogenic seizures, the ALJ
11
could have reasonably interpreted Dr. Buitrago’s testimony as indicating that such
12
normal exams were inconsistent with Plaintiff’s specific claims that his small spells
13
caused attention and concentration problems. See Thomas v. Barnhart, 278 F.3d
14
947, 954 (9th Cir. 2002) (“Where the evidence is susceptible to more than one
15
rational interpretation, one of which supports the ALJ’s decision, the ALJ’s
16
conclusion must be upheld.”).
17
61 See AR 18. In so doing, the ALJ replaced—rather than added to—the relevant
18
severe-impairment finding from the prior decision, which assessed Plaintiff with
19
“seizure disorder.” Compare AR 18 (new decision), with AR 130 (prior decision). Cf.
20
also AR 23 (ALJ finding new evidence regarding Plaintiff’s physical impairments
21
warranted finding “somewhat more limited postural, manipulative, and
22
environmental limitations than found in the prior decision”).
23
1 agreement that Plaintiff suffered from both epilepsy and nonepileptic spells. The
2 ALJ’s finding that Plaintiff’s epilepsy did not constitute a medically determinable

3 impairment is supported by neither sufficient explanation nor substantial
4 evidence. The ALJ erred at step two of the sequential evaluation.
5 More, the apparent conflation of Plaintiff’s epilepsy and his nonepileptic
6 spells permeated the rest of the ALJ’s decision. Throughout the sequential
7 analysis, the ALJ repeatedly referred to her finding that Plaintiff’s seizures were
8 psychogenic and nonepileptic in nature, using it as a basis for rejecting the related
9 limitations reported by Plaintiff and others. This included the medical opinion of a

10 treating provider, Ryan McMeans, PA-C, who opined that Plaintiff’s seizures
11 would, among other things, cause him to require extra breaks and would result in
12 more than four absences in an average month of full-time work.62 The ALJ erred
13 in assessing the medical evidence, including the medical opinions of record.
14 Other than highlighting certain normal mental-status findings that
15 arguably contradict claims of significant focus/concentration problems, in analyzing

16 Plaintiff’s seizure/spell-related symptoms, the ALJ failed to identify which of
17 Plaintiff’s symptoms were being discounted or what evidence undermined those
18 claims.63 The ALJ’s decision leaves unclear whether she thought Plaintiff’s
19 seizures/spells (1) occurred less frequently than alleged, (2) did not result in the
20

21
62 See AR 24; see also AR 1231 (Feb. 2018 Seizures Medical Source Statement).
22
63 See Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014).
23
1 thought/consciousness interruption he described, (3) were preventable/treatable,
2 (4) did not cause fatigue as alleged, or (5) a combination thereof. Indeed, the ALJ’s

3 decision makes no mention of Plaintiff’s claims regarding fatigue as a symptom of
4 his seizures/spells. The ALJ erred in discounting Plaintiff’s seizure/spell-related
5 symptom reports.
6 As discussed above, the record lacks evidence describing how symptoms
7 might differ between epileptic seizures and psychogenic seizure-like spells. As
8 such, the Court is unable to conduct a meaningful review of the ALJ’s implicit
9 findings that Plaintiff’s seizures/spells did not cause fatigue (or any other

10 symptoms) that would require Plaintiff to take extra rest breaks and/or result in
11 excessive absenteeism if engaged in full-time work. Further, had such additional
12 limitations been included in Plaintiff’s RFC, the vocational-expert testimony
13 indicates Plaintiff would have likely been found disabled.64 The ALJ’s errors are
14 therefore consequential and require reversal.65
15

16

17
64 See AR 120–21 (testifying that employers would not tolerate either a
18
requirement for unscheduled breaks every 2 hours, each lasting 15–30 minutes, or
19
absenteeism—which includes arriving late or leaving early—in excess of one day
20
per month).
21
65 See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 2014)
22
(explaining that an error is harmless if it is inconsequential to the decision).
23
1 C. Other Assignments of Error: Not addressed.
2 Reversal is already required, and the ALJ’s determination that Plaintiff did

3 not suffer from epilepsy as a medically determinable impairment likely impacted
4 the rest of the ALJ’s analysis, including her assessment of the medical evidence
5 and Plaintiff’s symptom reports. As such, the Court need not reach Plaintiff’s other
6 assignments of error.
7 D. Remand: Further proceedings are required.
8 The ALJ reversibly erred, but Plaintiff has not clearly established that he
9 was disabled during the relevant period, and he agrees that remand for further

10 proceedings is appropriate.66 On remand, the ALJ shall conduct the disability
11 evaluation anew, beginning at step two, subject to the following additional
12 instructions:67
13

14
66 Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017); Benecke v. Barnhart, 379
15
F.3d 587, 595 (9th Cir. 2004) (“[T]he proper course, except in rare circumstances, is
16
to remand to the agency for additional investigation or explanation.”). See also ECF
17
No. 15 at 21 (requesting remand for further proceedings).
18
67 Although Plaintiff’s arguments and the Courts analysis focus on Plaintiff’s
19
mental health and seizure/spell symptoms, the new evaluation is not limited to
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such issues, as the ALJ’s reexamination of the medical-opinion evidence may
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impact how she views other evidence, including evidence related to Plaintiff’s
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physical impairments.
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1 • If the ALJ again relies on res judicata/Chavez to adopt a prior finding on
2 an issue for which the record contains new, facially relevant evidence, the

3 ALJ shall explain why such evidence is not material to the finding.
4 Similarly, if there has been a change a law, regulation, or ruling that
5 arguably applies, the ALJ shall explain why the change does not affect
6 “the finding or the method for arriving at the finding.”68
7 • If the ALJ again discounts evidence on the basis that it was generated
8 outside the relevant period, unless made clear by context, the ALJ should
9 explain why the timing renders the evidence less probative. While timing

10 is certainly a valid consideration,69 evidence originating from before the
11 alleged onset date and/or after the date last insured can still be highly
12 probative of a claimant’s condition during the relevant period—
13 particularly when it comes to a longstanding impairment that, due to its
14 nature, is unlikely to exhibit a sudden and sustained change in
15 symptoms.70

16 • With respect to the medical-opinion evidence, the ALJ must meaningfully
17 articulate the supportability and consistency of each medical opinion.
18

19
68 See Acquiescence Ruling 97-4(9) 1997 WL 742758 at *3.
20
69 See Carmickle, 533 F.3d at 1165.
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70 Cf. Fair v. Bowen, 885 F.2d 597, 600 (9th Cir. 1989) (noting old evidence was
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probative as to whether the claimant’s condition had worsened over time).
23
1 • If the ALJ again rejects epilepsy (or a similar seizure-related disorder) as
2 a medically determinable impairment, the ALJ shall explain her

3 reasoning in detail and specifically address the more-recent neurological
4 records that diagnose Plaintiff with epilepsy (or seizure disorder) in
5 addition to nonepileptic spells.71
6 • If the ALJ again assesses psychogenic, nonepileptic seizures (or a similar
7 condition) as a severe impairment, the ALJ shall supplement the record
8 with testimony from one or more medical experts familiar with
9 psychogenic seizures who can provide information and opinions regarding

10 the related signs, symptoms, and findings. Additionally, if the ALJ finds
11 Plaintiff suffers from both epileptic seizures and nonepileptic spells, or if
12 the ALJ discounts any evidence on the basis that Plaintiff’s seizure-like
13 spells are psychogenic in nature, the ALJ should elicit further medical-
14 expert testimony regarding epileptic seizures, including how they differ
15 from psychogenic seizure-like spells.

16 • If the ALJ again discounts Plaintiff’s symptom reports, the ALJ must
17 articulate specific, clear, and convincing reasons for doing so.72 General
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20

21
71 See, e.g., AR 728, 733, 740, 804.
22
72 Ghanim, 763 F.3d at 1163.
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1 findings are insufficient because the Court cannot affirm discounting
2 Plaintiff’s symptoms for a reason not articulated by the ALJ.73

3 • If the ALJ again relies upon a lack of treatment or conservative
4 treatment as a reason to discount Plaintiff’s symptom reports, the ALJ
5 must expressly consider whether Plaintiff’s treatment choices are
6 explained by reasons other than his symptoms being less severe than
7 alleged—such as a lack of insurance and/or other barriers to treatment.74
8 V. Conclusion
9 Plaintiff establishes the ALJ erred. The ALJ is to develop the record and

10 reevaluate—with meaningful articulation and evidentiary support—the sequential
11 process as set forth above.
12 Accordingly, IT IS HEREBY ORDERED:
13 1. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is
14 GRANTED.
15 2. The Commissioner’s Motion for Summary Judgment, ECF No. 16, is

16 DENIED.
17

18
73 See Garrison, 759 F.3d at 1010.
19
74 See id. at 1018 n.24. See also, e.g., AR 627, 631 (March 2019: Plaintiff indicating
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he was having problems with insurance coverage); AR 648, 649 (Nov. 2018:
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Plaintiff reporting insurance problems and that he “cannot come in monthly for
22
having financial difficulty”).
23
1 3. The Clerk’s Office shall enter JUDGMENT in favor of Plaintiff.
2 4, The decision of the ALJ is REVERSED and this matter is
3 REMANDED to the Commissioner of Social Security for further
4 proceedings pursuant to sentence four of 42 U.S.C. § 405(g).
5 5. The case shall be CLOSED.
6 IT IS SO ORDERED. The Clerk’s Office is directed to file this order and
7 || provide copies to all counsel.
8 DATED this 17 day of March 2023.
9 huwd, Then
10 EDWARD F.SHEA
Senior United States District Judge
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ORDER RULING ON CROSS SUMMARY-JUDGMENT MOTIONS - 25

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10698196. Public record. Not legal advice.