Rodriguez

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

MONICA B. R., Ca se No. 3:25-cv-00221-AR

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER SOCIAL SECURITY

ADMINISTRATION,

Defendant.

_____________________________________

ARMISTEAD, United States Magistrate Judge

Monica B. R. challenges the Commissioner’s denial of her supplemental security income

benefits. She argues that the Administrative Law Judge made two reversible errors: (1) failing to

consider whether her asthma met or equaled respiratory Listing 3.02 and finding that it did not

meet or equal Listing 3.03 at step three, and (2) failing to provide clear and convincing reasons

for discounting her subjective symptom testimony. (Pl.’s Br. at 3-21.) Although the court

concludes that the ALJ did not err as to Step Three, the ALJ’s findings for discounting plaintiff’s

symptom testimony are not supported by substantial evidence. Accordingly, the Commissioner’s

decision is reversed and remanded for further proceedings. See 42 U.S.C. § 405(g); Ford v. Saul,

950 F.3d 1141, 1154 (9th Cir. 2020) (the district court must affirm the Commissioner’s decision

if the Commissioner applied proper legal standards and the findings are supported by substantial

evidence in the record).

(1) Step Three. At plaintiff’s hearing before the ALJ, in which she did not participate, her

non-attorney representative argued that even if plaintiff’s severe asthma disorder did not meet the

listings for “technical reasons” it was nevertheless disabling. (Tr. 46.) The ALJ made the step-

three determination that plaintiff’s asthma disorder did not meet or medically equal the criteria of

Listing 3.03 for asthma, observing that although subparagraph A was met (requiring a minimum

FEV1 value), subparagraph B was not (requiring three hospitalizations within a 12-month period

and at least 30 days apart). Sullivan v. Zebley, 493 U.S. 521, 531 (1990) (noting that, to meet or

equal a listing, a claimant must establish all medical criteria of the relevant listing and an

“impairment that manifests only some of those criteria, no matter how severely, does not

qualify”). Plaintiff contends, raising four arguments, that the ALJ erred in determining that she

does not have a respiratory condition severe enough to require a disability finding. 20 C.F.R. §

416.920(d) and Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990) (impairments described in

the listing are considered so severe that they are presumed to be disabling and the ALJ has no

discretion in awarding benefits).

Listing 3.02. Plaintiff argues that the ALJ harmfully erred by omitting any discussion of

Listing 3.02. (Pl.’s Br. at 4; Reply at 1-2.) According to plaintiff, because Listing 3.02A may be

met with respiratory test results alone and her medical records contained spirometry test results,

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the ALJ was required to consider Listing 3.02. Even so, because the spirometry test results on

which she relies to argue that the ALJ was required to discuss Listing 3.02 lacked a report, the

ALJ did not err.

A claimant can meet Listing 3.02A with spirometry test results showing an FEV1 value

less than or equal to the values identified in Table 1 based on age, gender, and height without

shoes. 20 C.F.R. § 404, Subpt. P, App. 1 (Listing 3.02A). As relevant here, Listing 3.00E

discusses spirometry and identifies the requirements “for an acceptable test and report.” Id.

(Listing 3.00E). Spirometry testing requires that the claimant be medically stable, repeat

spirometry testing at times, and that the breathing maneuvers be satisfactorily performed. Id.

(Listing 3.00E(2)(a)-(c)). Additionally, the spirometry report must include the date of testing, the

claimant’s gender and height, any factors that could affect the results, and “[l]egible tracings of

your forced expiratory maneuvers in a volume-time format showing your name and the date of

the test for each maneuver.” Id. (Listing 3.00E(3)(a)-(c)). Based on plaintiff’s age and height, she

must have an acceptable test and report showing an FEV1 value less than 1.35L to satisfy Listing

3.02A. Id. (Listing 3.02A Table 1-B)).

Plaintiff points to an FEV1 value of 0.94L obtained at a May 3, 2022, appointment with a

pulmonologist. (Tr. 1070-74.) Yet the May 2022 spirometry test results are just that—numeric

results. (Tr. 1074.) There is no “report” from the pulmonologist showing the “predicted normal

value” or whether the maneuver was satisfactorily performed showing “full inspiration” with “a

sharp takeoff and rapid rise to peak flow, has a smooth contour, and either lasts for at least 6

seconds or maintains a plateau for at least 1 second” and contains no “legible tracings” of the

maneuver “in a volume-time format” as required for an “acceptable test and report.” 20 C.F.R. §

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404, Subpt. P., App. 1 (Listing 3.00E(2)(b)-(c), (3)(c)). Plaintiff acknowledges that the testing

was not performed when she was medically stable and thus is not an acceptable test and report.

(Pl.’s Br. at 4 (noting test was not obtained within 30 days of completion of treatment for an

acute exacerbation).) And as plaintiff’s representative recognized at the hearing and as plaintiff

concedes in her reply, the singular, bare numeric spirometry test result in the record fails to

satisfy the criteria for meeting Listing 3.02A. (Tr. 46 (“we can’t technically use this to meet the

listing”); Reply at 3 (“the Listing cannot be met with this reading”).) Thus, the ALJ did not err in

failing to discuss whether plaintiff met Listing 3.02A.

As for whether Listing 3.02A was equaled, plaintiff also misses the mark. Plaintiff

remonstrates that the spirometry test performed in May 2022 was obtained under conditions that

were close to satisfying the listing and that the ALJ erred by failing to consider equivalency

under Listing 3.02A. Not so. “An ALJ is not required to discuss the combined effects of a

claimant’s impairments or compare them to any listing in an equivalency determination, unless

the claimant presents evidence in an effort to establish equivalence.” Kennedy v. Colvin, 738 F.3d

1172, 1178 (9th Cir. 2013) (quoting Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005)). At the

hearing, plaintiff’s representative presented no theory to the ALJ as to how her asthma medically

equaled Listing 3.02A. (Tr. 46.) Accordingly, the ALJ did not err in failing to discuss if Listing

3.02A was equaled.

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Equivalency under Listings 3.02D and 3.03B. Plaintiff also argues that the ALJ erred in

evaluating whether she equaled Listing 3.02D and 3.03B.1 (Pl.’s Br. at 4-9.) Those listings are

nearly identical. Listing 3.02D requires:

Exacerbations or complications requiring three hospitalizations

within a 12–month period and at least 30 days apart (the 12–month

period must occur within the period we are considering in

connection with your application or continuing disability review).

Each hospitalization must last at least 48 hours, including hours in

a hospital emergency department immediately before the

hospitalization.

20 C.F.R. § 404, Subpt. P, App. 1 (Listing 3.02D). Listing 3.03B requires the above plus:

Consider under a disability for 1 year from the discharge date of

the last hospitalization; after that, evaluate the residual

impairment(s) under 3.03 or another appropriate listing.

Id. (Listing 3.03B).

The listings require, in plaintiff’s view, spending “about six days in total” in a hospital at

any point within a 12-month period. (Pl.’s Br. at 5-6.) According to plaintiff, from July 2021 to

April 2022, she was hospitalized for a total of “7,934 minutes—or 132.23 hours, or 5.51 days—

in emergency or inpatient care,” which is close to the time required under the listings. (Pl.’s Br. at

5-6.) Plaintiff remonstrates that the record contains ample evidence establishing equivalency and

that the ALJ erred by failing to properly evaluate it. Plaintiff’s argument is misplaced in two

ways.

First, the listing criteria require that the hospital visits each last at least 48 hours, and that

they be at least 30 days apart. See 20 C.F.R. § Pt. 404, Subpt. P, App. 1 (Listings 3.02D, 3.03B).

1 At page 4 of plaintiff’s opening brief, she identifies Listing 3.03A, yet the court presumes

that she meant 3.03B because she discusses hospitalizations.

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Only two of plaintiff’s emergency room visits lasted 48 hours and the visits were less than 30

days apart and consequently—as the ALJ found—those treatment notes fail to show that she has

“symptoms, signs, and laboratory findings at least equal in severity and duration” to establish

equivalency under Listings 3.02D and 3.03B. (Tr. 20 (citing 1107, 1137-38, 1166-68)); Tackett,

180 F.3d at 1099. Second, plaintiff did not present her current equivalency theory—that she spent

nearly six days total—to the ALJ, and thus the ALJ did not err in failing to consider it. Kennedy,

738 F.3d at 1178; Burch, 400 F.3d at 683.

Medical Expert Required. Plaintiff contends that the ALJ erred in stating that “no

acceptable medical source designated to make equivalency findings has concluded that

[plaintiff’s] impairment medically equals a listed impairment.” (Tr. 20.) The ALJ is responsible

for making an equivalency finding and may consider medical expert testimony, nevertheless

plaintiff argues that expert testimony is not required for equivalence. See 20 C.F.R. §

416.926(e)(3) (providing that at hearings level, “the responsibility for deciding medical

equivalence rests with the administrative law judge”). Also asserted by plaintiff is that if expert

medical testimony was required, the ALJ erred in failing to obtain such testimony. (Pl.’s Br. at 3,

6-7.) The court disagrees.

At the hearings level, ALJs determine medical equivalence, and they may ask for and

consider evidence from medical experts to aid in evaluating the issue. 20 C.F.R.§ 416.926(e)(3)

SSR 17-2p, available at, 2017 WL 3928306, at *2-3 (effective Mar. 27, 2017). And under SSR

17-2p, to find medical equivalence at step three, the record must contain evidence of (1) a prior

administrative medical finding from a medical consultant at the initial or reconsideration levels

supporting equivalence; or (2) medical expert evidence obtained at the hearings level supporting

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equivalence. Id. at *3. Moreover, SSR 17-2p provides that an ALJ is “not require[d]” to obtain

expert testimony if the evidence does not support an equivalence finding at step three. Id. at *4.

In other words, to find that plaintiff’s asthma equaled Listing 3.02D or 3.03B, the record must

contain expert evidence, such as opinions from agency doctors, plaintiff’s doctors, or a testifying

medical expert. Conversely, if the ALJ believes that plaintiff can not establish equivalence, the

ALJ is not required to call an expert.

Here, the ALJ’s statement that the record contained no prior administrative findings or

expert evidence stating that plaintiff’s asthma equaled a listing is supported by substantial

evidence, accurately reflects the requirements of SSR 17-2p, and is free of legal error.

Accordingly, the ALJ’s finding that Listing 3.03B—the same requirements as Listing 3.02D—do

not support an equivalency finding also is supported by substantial evidence and free of legal

error. (Tr. 20-21.) The agency physicians at the initial stage and on reconsideration did not find

equivalency (Tr. 60, 68), and plaintiff does not identify a physician’s opinion with limitations

demonstrating equivalency. Thus, plaintiff’s contention that her various hospital records establish

equivalency falls short. See Kennedy, 738 F.3d at 1176 (discussing that listed impairments set

strict standards because they end the sequential evaluation).

Walker and Nebulizer Use as Hearsay. Plaintiff’s representative argued at the hearing that

Listing 3.03B is medically equaled because plaintiff has been using her nebulizer every two to

three hours and using a walker for asthma flare-ups since being discharged in May 2022. (Tr.

20.) Yet the ALJ discounted the representative’s statements as “hearsay,” and found that the

statements concerning plaintiff’s nebulizer and walker use were not supported by objective

medical evidence in the record. According to plaintiff, the ALJ should have considered the

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representative’s statements as an opening statement or offer of proof. She also contends that the

record contains evidence of prescriptions for a nebulizer and her significant physical limitations

that are relevant to an equivalency finding, and if the ALJ required additional information about

plaintiff’s walker and nebulizer use, the ALJ had a duty to develop the record. (Pl.’s Br. at 6-9.)

The court agrees with the parties that whether the representative’s statements are

“hearsay” does not bear on the ALJ’s evaluation at step three. See 42 U.S.C. § 405(b)(1) (stating

rules of evidence are not applicable to social security hearings). But the ALJ did not err in

failing to consider whether her walker and nebulizer use established equivalency at step three.2

Plaintiff identifies no criteria in the respiratory listings that discuss nebulizers or other

prescriptions, and equivalency must be established with medical findings, not functional

limitations. Tackett, 180 F.3d at 1100 (“Medical equivalence must be based on medical findings.

A generalized assertion of functional problems is not enough to establish disability at step

three.”) (internal citation and quotation omitted). Lastly, plaintiff has not shown that the record

was insufficiently developed for the ALJ to make step three findings; the ALJ did not have a duty

to develop the record at this step. Id.

(2) Subjective Symptom Testimony. Plaintiff asserts that the ALJ’s bases for discounting

her subjective symptom testimony about her asthma—treatment noncompliance and prior work

history—and about her mental health—improvement with treatment —were unsupported or

failed to account for the entire record. (Pl.’s Br. 18.) See Brown-Hunter v. Colvin, 806 F.3d 487,

488-89 (9th Cir. 2015) (if a claimant provides objective medical evidence of an underlying

2 The ALJ also discussed the representative’s testimony and plaintiff’s walker and

nebulizer use when evaluating the subjective symptom testimony. (Tr. 30.)

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impairment and there is no affirmative evidence of malingering, the ALJ must provide specific,

clear and convincing reasons for discounting the claimant's testimony); 20 C.F.R. § 414.929.

Treatment Noncompliance. The court agrees with plaintiff’s contention that the ALJ’s

grounds for finding that she was noncompliant with her treatment—a pattern of emergency care

visits, running out of prescription medication, failing to follow up treatment providers—failed to

account for her barriers to treatment. (Pl.’s Br. at 12-17; Tr. 24-30.) From 2021 through 2023, she

sought emergency care many times despite taking her prescribed medication as directed. (See Tr.

537 (“She used her home inhaler repeatedly without improvement”), 540, 601, 605-06, 618 (“she

describes that following her emergency department visit she is feeling better but has had

worsening shortness of breath . . . She states her bag was stolen from her car which contain her

MDI albuterol inhaler and her prednisone although she did take her dose this morning”), 626-29

(“She has been using her inhalers which has been helping but is not fully relieved her symptoms

and she comes in today with worsening shortness of breath”), 878-880, 944.)

Plaintiff’s financial circumstances made it difficult to obtain her prescribed treatment. For

example, the record shows that plaintiff was often moving, once lived in her car, and had no

access to electricity to use her nebulizer. (See Tr. 879, 905, 1023 (“unstably housed which

complicates [plaintiff’s] ability to use Duoneb and stabilize breathing”); 1025 (“[u]nstably

housed which makes plugging in neb machine harder”), 1313 (unable to operate her home

nebulizer); 1340 (“recently got in a fight with mother and is living in car in Portland area”);

1346-47 (“[h]ousing stability with electrical access is vital to patient’s stability of medication use

and breathing machine”); see also Tr. 905, 1346-48 (discussing hotel stay prescriptions and

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requests for flex-pay funding programs to secure housing so that plaintiff would have electricity

for nebulizer).)

Despite acknowledging that plaintiff has an “unstable living situation” and is sometimes

“homeless and living with her mother” (Tr. 30), the ALJ did not adequately grapple with the

effects her circumstances had on treatment compliance. See Orn v. Astrue, 495 F.3d 625, 638 (9th

Cir. 2007) (finding reversible error where the ALJ discredited the claimant’s testimony based on

large gaps in his treatment because he did not have insurance and could not pay for it); see also

Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (holding that

noncompliance “is not a proper basis for rejecting the claimant’s credibility where the claimant

has a good reason for not seeking more aggressive treatment”); see also SSR 16-3p, available at

2017 WL 5180304, at *9 (discussing that ALJ must consider reasons for noncompliance,

including that a claimant “may not be able to afford treatment and may not have access to free or

low-cost medical services”). Thus, the ALJ’s findings on treatment noncompliance are not

supported by substantial evidence and this rationale fails to provide a clear and convincing basis

for discounting plaintiff’s testimony.

Plaintiff’s Work History. The ALJ discounted plaintiff’s subjective symptom testimony

because she stopped working because the company closed, not because of her asthma. (Tr. 24.)

But plaintiff’s former employer closed two years before her alleged onset date and, therefore,

this rationale fails to provide a clear and convincing basis for discounting her subjective

symptom testimony. See Haagenson v. Colvin, 656 F. App’x 800, 801 (9th Cir. 2016) (holding

that “the evidence that [claimant] was laid off from her last job. . . prior to her alleged onset date

. . . has no bearing on either her credibility or the disability determination”).

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Improvement With Treatment. Plaintiff takes issue with ALJ’s finding that her mental

health symptoms improved with treatment, asserting that the ALJ failed to consider the “overall

diagnostic picture.” (Pl.’s Br. 17-19, citing Ghanim v. Colvin, 763 F.3d 1154, 1161-62 (9th Cir.

2014); Tr. 24-26, 28-29, 31.) For instance, Ativan helps during panic attacks but causes her to

become “lethargic and somnolent.” (Pl.’s Br. at 18, citing Tr. 654, 656-57.) And medications she

was prescribed for her anxiety were ineffective because she was in acute distress during an

asthma attack and “remained unable to tolerate the BIPAP mask due to claustrophobia at other

visits.” (Pl.’s Br. at 18-19.) Here, the court disagrees.

The ALJ reasonably considered that plaintiff’s mental impairments responded well to

treatment with prescribed medication, relying on a provider’s note that described her anxiety as

“inactive or stable,” her own repeated reports to providers denying depression, and her report to

a provider in June 2022 that her medication “helps significantly with anxiety.” (Tr. 31, Tr. 1340.)

As the ALJ also found, there is an absence of mental health treatment after 2022, plaintiff has not

pursued therapy for her mental health symptoms, and medical providers have not assessed

limitations due to her mental health. (Tr. 31-32.) See also Warre v. Comm’r of Soc. Sec. Admin.,

439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled effectively with

medication are not disabling.”) (citations omitted). The ALJ’s findings are supported by

substantial evidence and are a reasonable interpretation of the evidence. The ALJ therefore did

not err in evaluating plaintiff’s mental health symptoms.

In sum, because the bulk of the credibility findings are not supported by substantial

evidence, the court concludes that the ALJ failed to provide specific, clear and convincing

reasons to reject plaintiff’s subjective symptom testimony; the ALJ has erred.

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(3) Remand. The courts remands this case for further proceedings because there are

“outstanding issues that must be resolved before a disability determination can be made.” Leon v.

Berryhill, 880 F.3d 1041, 1045 (9th Cir. 2017); Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d

1090, 1105 (9th Cir. 2014) (concluding that district court must “assess whether there are

outstanding issues requiring resolution” before considering whether to credit the claimant’s

testimony as true). The ALJ erred in evaluating plaintiff’s subjective symptom testimony and

that error may have influenced the remaining steps; issues concerning the ultimate determination

of plaintiff’s disability remain unresolved. Taylor v. Berryhill, 720 F. App’x 906, 907 (9th Cir.

2018) (“Remand for further proceedings is proper because outstanding issues in the record

remain that must be resolved before a determination of disability can be made[.]”) The errors

here are not “inconsequential to the ultimate nondisability determination.” Treichler, 775 F.3d at

1099.

On remand, the ALJ will reevaluate plaintiff’s alleged symptoms and incorporate that

testimony into the RFC or provide clear and convincing reasons why that testimony is rejected.

The ALJ should also take into consideration plaintiff’s significant barriers to treatment and

continue with the sequential evaluation and offer her an opportunity for a new hearing. As

warranted, the ALJ will reevaluate plaintiff’s RFC, obtain any supplemental vocational expert

evidence, and conduct any other reasonable measures necessary. Garrison v. Colvin, 759 F.3d

995, 1019 (9th Cir. 2014) (stating that remand is appropriate where “additional proceedings can

remedy defects in the original administrative proceeding”).

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CONCLUSION

For the above reasons, the court REVERSES the Commissioner’s final decision and

REMANDS this case for further administrative proceedings.

ORDERED: April 20, 2026.

RMISTEAD

United States Magistrate Judge

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