# Bowen v. Bisignano

> District Court, E.D. Washington · August 21, 2025

URL: https://www.frixlaw.com/law-library/cases/11125691

## Case

- **Court:** District Court, E.D. Washington
- **Decided:** August 21, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

1
FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
2
Aug 21, 2025
3
UNITED STATES DISTRICT COURT SEAN F. MCAVOY, CLERK
EASTERN DISTRICT OF WASHINGTON
4

5
CHELSEA B.,1 No. 4:25-cv-5013-EFS
6
Plaintiff,
7
ORDER REVERSING THE
8 v. ALJ’S DENIAL OF BENEFITS,
AND REMANDING FOR
9 FRANK BISIGNANO, FURTHER PROCEEDINGS
Commissioner of Social Security,2
10
Defendant.
11
12

13
14
15

16
1 For privacy reasons, Plaintiff is referred to by first name and last
17
initial or as “Plaintiff.” See LCivR 5.2(c).
18
2 Frank Bisignano became the Commissioner of Social Security on May
19
20 6, 2025. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure,
21 and section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), he is
22
hereby substituted as the defendant.
23
1 Due to chronic migraine headaches, tension-type headaches,
2 fibromyalgia, major depressive disorder, generalized anxiety disorder
3
with panic attacks, borderline personality disorder, and attention-
4
deficit hyperactivity disorder (ADHD), Plaintiff Chelsea B. claims she
5
was unable to work fulltime during the period of October 11, 2019,
6
through October 20, 2021, and applied for social-security benefits. She
7
8 appeals the denial of benefits by the Administrative Law Judge (ALJ)
9 on the grounds that the ALJ improperly analyzed whether Plaintiff
10
met or equaled the listings, improperly assessed Plaintiff’s subjective
11
claims, improperly evaluated the medical opinions, and erred at step
12
five as a result of her prior errors. As is explained below, the ALJ
13
erred. This matter is remanded for further proceedings as to the period
14
15 from October 11, 2019, through October 20, 2021.
16 I. Background
17
In November 2020, Plaintiff protectively filed applications for
18
benefits under Title 2 and Title 16, claiming disability beginning
19
October 11, 2019, based on the physical and mental impairments noted
20
21
22
23
1 above.3 Plaintiff’s claim was denied at the initial and reconsideration
2 levels.4
3
After the agency denied Plaintiff benefits, ALJ Lori Freund held a
4
telephone hearing on June 3, 2024, at which Plaintiff, a vocational
5
expert, and a psychological medical expert testified.5 At the hearing,
6
Plaintiff amended her claims to ones for a closed period of disability
7
8 from October 11, 2019, through October 20, 2021.6
9 Plaintiff testified that she went back to work in October 2021.7
10
She said that during the closed period she had not worked and was
11
receiving state medical assistance.8 She said that between October
12
2019 and October 2021 she had not used any illicit drugs but had “one
13
14
15

16
3 AR 406, 408, 410.
17
4 AR 184, 194, 211, 216.
18
5 AR 52-96.
19
20 6 AR 56.
21 7 AR 78.
22
8 Id.
23
1 drink every so often.”9 She said that in July 2022 she began using
2 drugs but later had started a medical detox program and was in the
3
program.10 She said that during the closed period she was depressed
4
due to her father’s death and was having at least 3 migraines a week,
5
and they lasted for whole days and sometimes up to 2 days.11
6
Plaintiff testified that she tried a lot of medications but nothing
7
8 worked until she was approved for Botox.12 She said that she was
9 having migraine headaches 8 times a month before her treatment with
10
Botox and after the treatment they decreased to 4 times a month and
11
were not lasting as long.13 She said that it took a while for the Botox to
12
work and that she was only able to take the injections once every three
13
months.14
14
15

16
9 AR 79.
17
10 Id.
18
11 AR 80.
19
20 12 Id.
21 13 AR 80-81.
22
14 AR 81.
23
1 Plaintiff said that in addition to reducing the frequency and
2 length of her migraine headaches, she also had less anxiety because
3
she did not fear having a migraine attack when out in public.15 Before
4
her migraines were controlled, she would have panic attacks when she
5
went to appointments where she would have rapid heartbeat, nausea,
6
sweating, and racing thoughts.16 When she had a migraine, she would
7
8 be extremely sensitive to light and sound and would get nauseous.17
9 When she had a migraine she would have to put a mask over her face
10
and would take Fioricet, which would help if she took it quickly
11
enough.18 She would lie down and hope to be able to sleep until the
12
migraine passed.19
13
14
15
16

17
15 AR 81-82.
18
16 AR 82.
19
20 17 AR 84.
21 18 Id.
22
19 Id.
23
1 Plaintiff said that she had days where she woke with pressure
2 behind her eyes and dizziness that preceded a migraine.20 She said that
3
on days when she was not having a migraine she was able to attend
4
appointments and do household chores.21
5
After the hearing, the ALJ issued a decision denying benefits.22
6
The ALJ found Plaintiff’s alleged symptoms were not entirely
7
8 consistent with the medical evidence and the other evidence.23 As to
9 medical opinions: the ALJ found:
10
• The opinions of medical expert Michael Greenberg, PsyD, to
11
be persuasive.
12
• The opinions of state agency evaluator, Jon Anderson, PhD,
13
PhD, to be generally persuasive.
14
15
16

17
20 AR 85.
18
21 Id.
19
20 22 AR 20-46. Per 20 C.F.R. §§ 404.1520(a)–(g), 416.920(a)–(g), a five-
21 step evaluation determines whether a claimant is disabled.
22
23 AR 30-35.
23
1 • The opinions of state agency evaluator Renee Eisenhauer,
2 PhD, to be unpersuasive.
3
• The opinions of state agency evaluators Robert Stuart, MD
4
and Charles Lee, MD, to be persuasive.
5
• The opinions of examining sources N.K. Marks, PhD, and
6
David Morgan, PhD, to be unpersuasive.
7
8 • The opinions of examining source Ronald Page, PhD, to
9 have no probative value.
10
• The opinions of reviewing source Janis Lewis, PhD, to be
11
unpersuasive.
12
• The opinions of Bruce Tapper, PhD, to be unpersuasive.24
13
14 As to the sequential disability analysis, the ALJ found:
15 • Plaintiff met the insured status requirements through
16
December 31, 2024.
17
• Step one: Plaintiff had not engaged in substantial gainful
18
activity since July 31, 2019, the alleged onset date.
19
20
21

22
24 AR 36-38.
23
1 • Step two: Plaintiff had the following medically determinable
2 severe impairments: migraines, fibromyalgia, major
3
depressive disorder, generalized anxiety disorder with panic
4
features, borderline personality disorder, and ADHD.
5
• Step three: Plaintiff did not have an impairment or
6
combination of impairments that met or medically equaled
7
8 the severity of one of the listed impairments and considered
9 11.02, 14.09, 12.04, 12.06, 12.08, and 12.11.
10
• RFC: Plaintiff had the RFC to perform light work with the
11
following exceptions:
12
[Plaintiff] could lift and carry up to 20 pounds
13
occasionally and up to 10 pounds frequently. The
claimant could stand and walk for at least six hours
14
in an eight-hour workday and sit for at least six
15 hours in an eight-hour workday. The claimant
should avoid climbing ladders, ropes, and scaffolds.
16 The claimant should avoid concentrated exposure to
noise above office level, excessive vibration, fumes,
17
odors, dusts, gases, and airborne particulates. The
18 claimant should avoid all exposure to unprotected
heights and should avoid concentrated exposure to
19 moving mechanical parts or the operation of heavy
machinery. The claimant is limited to simple
20
instruction, with occasional changes in a work
setting, and should avoid any type of fast-paced,
21
assemblyline work. The claimant should avoid
22 working with the general public, and could have
occasional interaction with coworkers and
23
1 supervisors, but should avoid any type of tandem
tasks performed.
2
• Step four: Plaintiff has no past relevant work.
3
4 • Step five: considering Plaintiff’s RFC, age, education, and
5 work history, Plaintiff could perform work that existed in
6
significant numbers in the national economy, such as
7
marker (DOT 209.587-034), router (DOT 222.587-038), and
8
a routing clerk (DOT 222.687-022).25
9
Plaintiff timely requested review of the ALJ’s decision by the
10
11 Appeals Council and now this Court.26
12 II. Standard of Review
13
The ALJ’s decision is reversed “only if it is not supported by
14
substantial evidence or is based on legal error,”27 and such error
15
16
17

18
25 AR 26-39.
19
20 26 AR 1-6, ECF No. 1.
21 27 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). See 42 U.S.C. §
22
405(g).
23
1 impacted the nondisability determination.28 Substantial evidence is
2 “more than a mere scintilla but less than a preponderance; it is such
3
relevant evidence as a reasonable mind might accept as adequate to
4
support a conclusion.”29
5
6
7
8

9
28 Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) ), superseded
10
on other grounds by 20 C.F.R. § 416.920(a) (recognizing that the court
11
may not reverse an ALJ decision due to a harmless error—one that “is
12
13 inconsequential to the ultimate nondisability determination”).
14 29 Hill, 698 F.3d at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978,
15
980 (9th Cir. 1997)). See also Lingenfelter v. Astrue, 504 F.3d 1028,
16
1035 (9th Cir. 2007) (The court “must consider the entire record as a
17
whole, weighing both the evidence that supports and the evidence that
18
detracts from the Commissioner's conclusion,” not simply the evidence
19
20 cited by the ALJ or the parties.) (cleaned up); Black v. Apfel, 143 F.3d
21 383, 386 (8th Cir. 1998) (“An ALJ’s failure to cite specific evidence does
22
not indicate that such evidence was not considered[.]”).
23
1 III. Analysis
2 Plaintiff initially argued the ALJ erred in not obtaining a medical
3
opinion regarding whether Plaintiff equaled Listing 11.02; erred by not
4
properly evaluating Plaintiff’s testimony; erred by not properly
5
assessing the medical opinions; and erred at step five as a result of the
6
prior errors.30 The Commissioner argues that the ALJ was not
7
8 obligated under SSR 17-2P to call a medical expert regarding
9 equivalency under Listing 11.02 and otherwise properly evaluated
10
Listings 11.02; properly evaluated Plaintiff’s testimony; and properly
11
considered the medical opinions.31 As is explained below, the ALJ’s
12
analysis contains consequential error, and the case should be
13
remanded for further proceedings to develop the record.
14
15 A. Step Three: Plaintiff established consequential error.
16 Plaintiff contends the ALJ failed to provide substantial evidence
17
to support the finding that Plaintiff did not equal Listing 11.02. The
18
Court agrees.
19
20
21 30 ECF No. 6.
22
31 ECF No. 7.
23
1 1. Standard
2 The Listings set forth by the Commissioner “define impairments
3
that would prevent an adult, regardless of his age, education, or work
4
experience, from performing any gainful activity, not just ‘substantial
5
gainful activity.’”32 At step three of the sequential evaluation, Plaintiff
6
bears the burden of demonstrating that her impairment meets or
7
8 equals a Listing.33
9 If a claimant meets all of the listing criteria, she is considered
10
disabled at step-three. A claimant who does not meet the listing
11
criteria may still be considered disabled at step-three if her
12
impairment(s) medically equal a listed impairment.34 Medical
13
equivalence can be established three ways, one of which is:
14
15 If an individual has an impairment that is described in the
listings, but either:
16

17
32 Sullivan v. Zebley, 493 U.S. 521, 532 (1990) (citations omitted).
18
33 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
19
20 34 Soc. Sec. Ruling 17-2p. See also Sullivan, 493 U.S. at 530 (requiring
21 a claimant to show that the impairment meets (or medically equals) all
22
of the specified medical criteria, not just some of the criteria).
23
1
a. the individual does not exhibit one or more of the
2 findings specified in the particular listing, or
b. the individual exhibits all of the findings, but one or
3
more of the findings is not as severe as specified in the
4 particular listing,

5 then we will find that his or her impairment is medically
equivalent to that listing if there are other findings related
6
to the impairment that are at least of equal medical
significance to the required criteria.35
7

8 The ALJ is obligated to consider the relevant evidence to
9 determine whether a claimant’s impairments meet or equal one of the
10
specified impairments set forth in the listings.36 Generally, a
11
“boilerplate finding is insufficient to support a conclusion that a
12
claimant’s impairment does not [meet or equal a listing].”37
13
14
15

16
35 Id.
17
36 Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir.2001); 20 C.F.R. §
18
416.920(a)(4)(iii).
19
20 37 Lewis, 236 F.3d at 512; see also Marcia v. Sullivan, 900 F.2d 172, 176
21 (9th Cir.1990) (noting that the ALJ's unexplained finding at step three
22
was reversible error).
23
1 SSR 19-4p offers policy interpretation in evaluating cases
2 involving a primary headache disorder. The Ruling provides:
3
4. What are the ICHD-3 diagnostic criteria for migraine
4 without aura?

5 The ICHD-3 diagnostic criteria for migraine without aura
are headaches not better accounted for by another ICHD-3
6
diagnosis and at least five headache attacks satisfying the
following criteria:
7

8 • Lasting 4 to 72 hours (untreated or unsuccessfully
treated); and
9 • At least two of the following four characteristics:
10 • Unilateral location;
• Pulsating quality;
11 • Moderate or severe pain intensity; or
• Aggravation by or causing avoidance of routine
12 physical activity (for example, walking or climbing
stairs); and
13

14 • During headache, at least one of the following:
• Nausea or vomiting, or
15 • Photophobia and phonophobia.38

16
The Ruling then provides further that a primary headache
17
18 disorder be evaluated under the Listing of Impairments as follows:
19 Primary headache disorder is not a listed impairment in the
Listing of Impairments (listings); however, we may find that
20

21
38 DI 24580.035 SSR 19-4P: Titles II and XVI: Evaluating Cases
22
Involving Primary Headache Disorder, SSA POMS DI 24580.035.
23
1 a primary headache disorder, alone or in combination with
another impairment(s), medically equals a listing.
2
Epilepsy (listing 11.02) is the most closely analogous listed
3
impairment for an MDI of a primary headache disorder.
4 While uncommon, a person with a primary headache
disorder may exhibit equivalent signs and limitations to
5 those detailed in listing 11.02 (paragraph B or D for
dyscognitive seizures), and we may find that his or her
6
MDI(s) medically equals the listing.39

7
Listing 11.02 provides that an individual shall be found disabled
8
due to epilepsy if the following may be shown:
9
11.02 Epilepsy, documented by a detailed description
10
of a typical seizure and characterized by A, B, C, or
11 D:

12 A. Generalized tonic-clonic seizures (see 11.00H1a),
occurring at least once a month for at least 3 consecutive
13
months (see 11.00H4) despite adherence to prescribed
treatment (see 11.00C). OR
14

15 B. Dyscognitive seizures (see 11.00H1b), occurring at least
once a week for at least 3 consecutive months
16 (see 11.00H4) despite adherence to prescribed treatment
(see 11.00C). OR
17

18 C. Generalized tonic-clonic seizures (see 11.00H1a),
occurring at least once every 2 months for at least 4
19 consecutive months (see 11.00H4) despite adherence to
prescribed treatment (see 11.00C); and a marked
20
limitation in one of the following:
21

22
39 Id.
23
1 1. Physical functioning (see 11.00G3a); or
2. Understanding, remembering, or applying information
2 (see 11.00G3b(i)); or
3. Interacting with others (see 11.00G3b(ii)); or
3
4. Concentrating, persisting, or maintaining pace
4 (see 11.00G3b(iii)); or
5. Adapting or managing oneself (see 11.00G3b(iv)).
5 OR

6
D. Dyscognitive seizures (see 11.00H1b), occurring at least
once every 2 weeks for at least 3 consecutive months
7
(see 11.00H4) despite adherence to prescribed treatment
8 (see 11.00C); and a marked limitation in one of the
following:
9
1. Physical functioning (see 11.00G3a); or
10
2. Understanding, remembering, or applying
11 information (see 11.00G3b(i)); or
3. Interacting with others (see 11.00G3b(ii)); or
12 4. Concentrating, persisting, or maintaining pace
(see 11.00G3b(iii)); or
13
5. Adapting or managing oneself (see 11.00G3b(iv)).

14
2. The ALJ’s consideration of Listing 14.09
15
The ALJ articulated her consideration of Listing 11.02 as follows:
16
To evaluate whether a primary headache disorder is equal
17
in severity and duration to the criteria in 11.02B, we
18 consider: a detailed description from an acceptable medical
source of a typical headache event, including all associated
19 phenomena (for example, premonitory symptoms, aura,
duration, intensity, and accompanying symptoms); the
20
frequency of headache events; adherence to prescribed
21 treatment; side effects of treatment (for example, many
medications used for treating a primary headache disorder
22 can produce drowsiness, confusion, or inattention); and
limitations in functioning that may be associated with the
23
1 primary headache disorder or effects of its treatment, such
as interference with activity during the day (for example,
2 the need for a darkened and quiet room, having to lie down
without moving, a sleep disturbance that affects daytime
3
activities, or other related needs and limitations). To
4 evaluate whether a primary headache disorder is equal in
severity and duration to the criteria in 11.02D, we consider
5 the same factors we consider for 11.02B. In addition, we
consider whether the overall effects of the primary
6
headache disorder on functioning results in marked
limitation in: physical functioning; understanding,
7
remembering, or applying information; interacting with
8 others; concentrating, persisting, or maintaining pace; or
adapting or managing oneself. (SSR 19-4p) Nevertheless,
9 there is no evidence that the claimant’s primary headache
disorder medically equals a listing, either individually or in
10
combination with another impairment. In this case, the
11 claimant’s medical evidence of record does not support
finding any marked limitations. As stated at the hearing by
12 Dr. Greenberg, the impartial medical expert, the claimant’s
mental status exams support finding no greater than a
13
moderate limitation in any area of functioning (Hearing
Testimony).40
14

15 3. Relevant Medical Evidence
16
The medical record reflects that Plaintiff suffered from migraine
17
headaches without aura, which were diagnosed as not intractable until
18
19
20
21

22
40 AR 27.
23
1 October 2019, when they were diagnosed as intractable due to a
2 worsening in the severity of symptoms.41
3
On October 11, 2019, Plaintiff presented to her primary medical
4
source, Carmen Ehlers, MD, at Kadlec Family Medicine Clinic.42
5
Plaintiff’s medical history noted a past diagnosis of chronic migraine
6
without aura, not intractable; and chronic tension-type headache, not
7
8 intractable.43
9 On October 28, 2019, Plaintiff presented to neurologist Fei Pan,
10
MD, of Kadlec Neurology Clinic on the referral of Carmen Ehlers for
11
12
13
14 41 Status migrainosus or intractable migraine is a migraine attack that
15
lasts longer than 72 hours. Symptoms of a migraine, like throbbing
16
head pain, are usually more severe than expected. It is also associated
17
with increased symptoms of light and sound sensitivity, nausea and
18
vomiting. Status Migrainosus: What It Is, Causes, Symptoms &
19
20 Treatment. www.clevelandclinic.org. (last viewed July 31, 2025).
21 42 AR 726-730.
22
43 AR 727.
23
1 treatment for migraine headaches.44 Dr. Pan noted that he reviewed
2 Plaintiff’s prior treatment notes with Dr. Washington and noted that in
3
the past Plaintiff had reported at least one tension headache a week
4
lasting 1-2 hours, as well as at least 2 migraines a month.45 Due to the
5
recent death of her father and other stressors, Plaintiff’s headaches
6
had increased to at least 20 headaches per month with 4-6 migraines
7
8 per month, lasting from 5-6 hours, up to 3 days.46 Plaintiff was
9 reporting partial improvement with Fioricet and Imitrex, and had in
10
the past tried and failed Keppra, zonisamide, propranolol, and
11
topiramate.47 Dr. Pan assessed intractable chronic migraine, and
12
recommended limiting sumatriptan and Fioricet due to the possibility
13
of rebound headaches, and adding Aimovig.48
14
15
16

17
44 AR 722-726.
18
45 AR 722.
19
20 46 Id.
21 47 Id.
22
48 AR 725.
23
1 On January 30, 2020, Plaintiff presented to Dr. Pan for follow-up
2 for migraine headaches.49 Dr. Pan noted that Plaintiff’s insurance had
3
approved Emgality but not Aimovig and that with Emgality Plaintiff
4
was experiencing mild improvement but continued to experience daily
5
headaches and migraines up to 6 days a month.50 Plaintiff was
6
diagnosed with an intractable chronic migraine.51
7
8 On May 15, 2020, Plaintiff presented to Dr. Pan via telehealth
9 visit for follow-up for migraine headaches.52 Dr. Pan noted that
10
Plaintiff had previously tried and failed topiramate, propranolol,
11
Keppra, and zonisamide for intractable migraine headaches associated
12
with light and sound sensitivity and nausea that required her to turn
13
14
15
16
17

18
49 AR 865-868, 716-719.
19
20 50 AR 865-866.
21 51 AR 868, 719.
22
52 AR 860-863.
23
1 off sound and light and close her eyes.53 Plaintiff reported some benefit
2 after her third month of Emgality.54
3
On August 24, 2020, Plaintiff presented to Dr. Pan via telehealth
4
visit for follow-up for migraine headaches.55 Dr. Fei noted that Plaintiff
5
had lost her insurance and was not able to fill her prescription for
6
Emgality but had started retaking it once her insurance was restored.56
7
8 Dr. Pan noted that Plaintiff’s treatment record indicated a history of 4-
9 6 migraines her month, which lasted from 5 hours to 3 days, and that
10
with Emgality the migraines were reduced to 4 migraines per month.57
11
Dr. Pan diagnosed intractable migraine headaches and noted a plan to
12
continue Emgality, with sumatriptan at night and Fioricet as needed.58
13
14
15

16
53 AR 861, 863.
17
54 AR 861.
18
55 AR 845-848.
19
20 56 AR 848.
21 57 AR 846.
22
58 AR 848.
23
1 On December 15, 2020, Plaintiff presented to Dr. Pan via
2 telehealth visit for follow-up for migraine headaches.59 Plaintiff
3
reported that she had started taking Emgality but it was not working
4
and she was having trouble giving herself the injections.60 Plaintiff
5
reported needing to use Fiorecet twice a week for intractable
6
migraines, with pressure behind her eyes, light and sound sensitivity,
7
8 and nausea.61 Dr. Fei noted that Plaintiff had tried and failed
9 topiramate, propranolol, Keppra, zonisamide, and Emgality for
10
intractable headaches and that his plan was to recommend Botox with
11
sumatriptan nightly and Fioricet as needed.62
12
At a February 1, 2021 office visit with Dr. Pan, Plaintiff reported
13
improvement after Botox injection, with reduction to 8 migraines a
14
15 month, rather than 3-4 migraine days a week.63 On March 24, 2021,
16

17
59 AR 840-844.
18
60 AR 841.
19
20 61 Id.
21 62 AR 844.
22
63 AR 685-686.
23
1 Plaintiff presented to Dr. Pan for a Botox injection.64 Plaintiff reported
2 significant improvement following a Botox injection on December 23,
3
2020.65 After injection ,her headaches had been reduced from 6
4
headaches and 3-4 migraines per week to 7 migraines per month.66
5
On August 16, 2021, Plaintiff presented to Dr. Pan for follow-up.67
6
Dr. Pan noted that Plaintiff started treatment for migraine headaches
7
8 with Botox on December 23, 2020, and reported significant improvement
9 of headaches.68 Plaintiff reported that after Botox treatment her
10
migraine headaches had been reduced to 5 days per month.69
11
4. Analysis
12
The ALJ’s articulated reasoning regarding Listing 11.02 is not
13
14 supported by substantial evidence. The ALJ did not appear to
15

16
64 AR 831-832.
17
65 AR 831.
18
66 AR 832.
19
20 67 AR 910-911.
21 68 AR 911.
22
69 Id.
23
1 understand the nature of Plaintiff’s migraine headaches. Initially, the
2 Court notes that while the ALJ has enumerated the criteria to be used
3
in evaluating headaches such as “the need for a darkened and quiet
4
room, having to lie down without moving,”70 she has not actually gone
5
on to articulate any actual consideration of the factors. As an example,
6
the criteria just cited regarding photophobia was not discussed in any
7
8 manner in the ALJ’s consideration of Listing 11.02. Additionally, in
9 her formulated RFC the ALJ has included provisions limiting sound,
10
vibration, dust, and noise but failed to make any provision for
11
limitation regarding lights.71 This is consequential because
12
photophobia (light sensitivity) is one of the most common side effects of
13
migraine headaches.72 Plaintiff’s medical records clearly establish that
14
15 she suffered from both photophobia and phonophobia during migraine
16

17
70 AR 27.
18
71 AR 29-30.
19
20 72 Photophobia (Light Sensitivity) and Migraine | American Migraine
21 Foundation, www.americanmigrainefoundation.org. (last viewed July
22
31, 2025).
23
1 episodes.73 Moreover, it was Plaintiff’s testimony that during a
2 migraine she was extremely sensitive to light and needed to cover her
3
eyes and lie down.74
4
The ALJ’s failure to discuss any of the factors set forth in Listing
5
11.02 is compounded by the fact that the only actual evidence cited by
6
the ALJ regarding migraine is the testimony of the psychological
7
8 medical expert, Dr. Greenberg.75 Dr. Greenberg is not qualified to
9 render any opinion as to the effects of any physical condition and would
10
not be able to render any meaningful testimony as to Plaintiff’s
11
physical functioning, the side effects of medication and treatment, the
12
need for dark or quiet space, or the effects of nausea and vomiting.
13
In short, the ALJ failed to articulate any valid consideration of
14
15 the factors provided for in SSR 19-4p and Listing 11.02.
16 The Commissioner asserts that the ALJ was not obliged under
17
SSR 17-2p to call a medical expert to testify regarding equivalency to
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19
20 73 AR 841, 8612, 863.
21 74 AR 84.
22
75 AR 27.
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1 Listing 11.02.76 While the Commissioner is correct that such testimony
2 was not required pursuant to SSR 17-2p, he has failed to consider that
3
the testimony was required pursuant to SSR 19-4p once Plaintiff met
4
the threshold to establish a primary headache disorder that might
5
equal Listing 11.02. While a simple migraine disorder without aura
6
might not meet the threshold to require medical expert testimony as to
7
8 whether it would equal the listing, an intractable migraine (status
9 migrainosus) or a migraine with aura does, by its nature, require such
10
expert testimony or opinion.
11
SSR 17-2p provides that while an ALJ may find that a claimant
12
meets a listing, medical expert testimony is required to establish
13
equivalency. Moreover, SSR 19-4p required the ALJ to properly
14
15 develop the record to consider whether Plaintiff’s intractable migraine
16 headaches equaled the listing.
17
The Court concludes that remand is warranted for the ALJ to
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properly develop the record and to call a medical expert to testify at the
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20
21

22
76 ECF No. 7.
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1 hearing as to whether during the closed period Plaintiff’s status
2 migainosus equaled Listing 11.02
3
B. Medical Opinions and Symptom Reports: This issue is
4
moot.
5
Plaintiff argues that the ALJ failed to provide valid reasons for
6
discounting his subjective complaints. Because the Court has
7
8 remanded the case with direction that the ALJ re-evaluate the medical
9 opinions and Plaintiff’s impairments, the ALJ will be required to re-
10
evaluate Plaintiff’s symptom reports. These issues are therefore moot.
11
C. Step Five: Plaintiff established consequential error.
12
Plaintiff argues the ALJ’s step five finding was flawed due to
13
errors in considering the medical opinion evidence and in evaluating
14
15 Plaintiff’s subjective complaints. Because Plaintiff established
16 consequential error in considering the medical evidence, he has
17
established error at step five.
18
D. Remand for Further Proceedings
19
Plaintiff submits a remand for payment of benefits is warranted.
20
The decision whether to remand a case for additional evidence, or
21
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1 simply to award benefits, is within the discretion of the court.”77 When
2 the court reverses an ALJ’s decision for error, the court “ordinarily
3
must remand to the agency for further proceedings.”78
4
The Court finds that further development is necessary for a
5
proper disability determination for the closed period from October 11,
6
2019, through October 20, 2021. Here, it is not clear whether Plaintiff
7
8 equaled Listing 11.02, or what, if any, additional limitations are to be
9 added to the RFC, such as limitations to exposure to light.
10
IV. Conclusion
11
Accordingly, IT IS HEREBY ORDERED:
12
13
14

15
77 Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987) (citing Stone
16
v. Heckler, 761 F.2d 530 (9th Cir. 1985)).
17
78 Leon v. Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017); Benecke 379
18
F.3d at 595 (“[T]he proper course, except in rare circumstances, is to
19
20 remand to the agency for additional investigation or explanation”);
21 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir.
22
2014).
23
1 1. The ALJ’s nondisability decision is REVERSED, and this
2 matter is REMANDED to the Commissioner of Social
Security for further development of the record as to the
period from October 11, 2019, through October 20, 2021.

6 2. The Clerk’s Office shall TERM the parties’ briefs, ECF

7 Nos. 6 and 7, enter JUDGMENT in favor of Plaintiff, and

8 CLOSE the case.
9 IT IS SO ORDERED. The Clerk’s Office is directed to file this
order and provide copies to all counsel.
DATED this 21* day of August 2025.

chad | Lew
EDWARD F. SHEA
Senior United States District Judge
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DISPOSITIVE ORDER, - 29

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11125691. Public record. Not legal advice.