1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Thomas Day, 

Plaintiff, 

v. 

Nancy A. Berryhill, Acting Commissioner 

of Social Security Administration, 

Defendant. 

No. CV-17-00575-TUC-LAB

ORDER 

 The plaintiff filed this action for review of the final decision of the Commissioner 

for Social Security pursuant to 42 U.S.C. § 405(g). (Doc. 1, pp. 1-2) 

 The Magistrate Judge presides over this case pursuant to 28 U.S.C. § 636(c) 

having received the written consent of both parties. See Fed. R. Civ. P. 73; (Doc. 13) 

 The decision of the Administrative Law Judge (ALJ) at step 5 of the disability 

determination is not supported by substantial evidence. The case is remanded for 

payment of benefits. 

 Procedural History 

 On November 27, 2013, Day filed an application for disability insurance benefits 

pursuant to Title II and supplemental security income pursuant to part A of Title XVIII of 

the Social Security Act. (Tr. 186-187) He alleged disability beginning March 1, 2013, 

stemming from brain damage to the right frontal lobe, depression, left knee injury and 

diabetes. (Tr. 96) His application was denied originally (Tr. 131-134) and on 

reconsideration. (Tr. 136-138) He then appeared with counsel at hearings before ALJ 
- 2 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

Peter J. Baum on December 2, 2015 and March 2, 2016. (Tr. 43-72, 72-94) The ALJ 

found that significant numbers of jobs existed that Day could perform in spite of his 

limitations and denied his claim on April 26, 2016 (Tr. 19-42). Day appealed and was 

denied review on September 28, 2017, making the decision of the ALJ the final decision 

of the Commissioner. (Tr. 1-7) 

 Claimant Work History and Medical History 

 Day was born on February 9, 1968. (Tr. 39) He was 45 years old at the onset date 

of his alleged disability and 48 when the ALJ issued his decision in April of 2016. (Tr. 

36) He last worked in March of 2013 at a call center. (Tr. 78, 88) He resigned due to 

health problems. Id. He has completed some college since, although he withdrew in 2014 

due to pain issues. (Tr. 79-82) Days received a 10% disability rating for his left knee 

from the Veterans Administration and had tuition paid for plus a monthly stipend during 

the school year. (Tr. 82-83) 

Impairments

 On February 20, 2014, Jaine Foster-Valdez, Ph.D, and Marilyn Orenstein, M.D., 

analyzed Day’s claim for the disability determination service. (Tr. 103) They diagnosed 

his impairments as follows: severe diabetes mellitus, non-severe cerebral trauma, nonsevere sprains and strains, severe COPD and non-severe affective disorders. Id. 

 Foster-Valdez conducted Day’s psychiatric review. Under the “A” criteria of 

listings, Day had a medically determinable impairment from an affective disorder that did 

not precisely satisfy diagnostic criteria. Id. Under the “B” criteria, which gauge severity, 

Day’s affective disorder gave him moderate difficulty in maintaining social function but 

no other issues. Id. There were no “C” criteria established. Id. 

 Foster-Valdez also evaluated Day’s Mental Residual Functional Capacity (RFC). 

(Tr. 96-110) Day was found to have social interaction limitations, but no understanding 

and memory or sustained concentration and persistence limitations. (Tr. 107) His ability 

to interact appropriately with the public, accept instructions and respond appropriately to 

criticism from supervisors, and ability to get along with coworkers or peers without 
- 3 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

distracting them or exhibiting behavioral extremes were all moderately limited. (Tr. 108) 

He had no other significant social interaction limits, or any adaptation limitations. Id. 

 Orenstein evaluated Day’s Physical RFC, finding that he could frequently lift ten 

pounds, occasionally lift twenty, stand or sit for about six hours with breaks out of an 

eight-hour workday, and push or pull without restriction. (Tr. 105) She also found that 

Day had postural limitations due to his obesity, diabetes and left knee injury, and that he 

had various problems climbing ramps or stairs, balancing, stooping, kneeling, crouching 

or crawling. (Tr. 105-6) She recommended that Day avoid concentrated exposure to 

wetness, hazards, anything that might affect air quality or extreme cold. Id. 

 Randall J. Garland, Ph.D., reviewed the record on reconsideration for the disability 

determination service on June 18, 2014. (Tr.111) He diagnosed Day’s affective disorders 

as severe. (Tr. 121) He found that in the “B” criteria of listings, Day now had mild 

restriction of activities of daily living and moderate difficulties in maintaining 

concentration, persistence or pace. Id. In the RFC accompanying this report, Garland 

found that Day was moderately limited in ability to complete a normal workday and 

workweek without interruptions from psychologically based symptoms and to perform at 

a consistent pace without an unreasonable number and length of rest periods. (Tr. 126)

 Hearings 

 On December 2, 2015, Day appeared with counsel at a hearing before the ALJ. He 

testified that he last worked at a call center until he resigned in March of 2013 due to 

health problems. (Tr. 78, 88) He took some courses in web design at Pima Community 

College, although he withdrew for a time due to pain issues. (Tr. 79-82) At the time of 

the hearing, he was enrolled in several courses but regularly missed classes when he was 

unable to get out of bed due to pain. (Tr. 80) He would have to get up and leave his 

classes every 10 to 15 minutes when he felt overwhelmed by the number of people 

around or the noise. Id. His professors accommodated his needs, and he had no oncampus tests or presentations in front of the class. (Tr. 81) He withdrew in Spring 2014 

when pain in his back and right hip left him unable to attend class. (Tr. 82) At the time of 
- 4 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

the hearing, he was back in school despite continuing pain. Id. 

 Day received 10% disability from the VA and had tuition paid plus a monthly 

stipend during the school year. Id. He can be on his feet for ten to fifteen minutes before 

he loses balance from pain and either sits down or falls, after which he has to sit for ten to 

fifteen minutes. Id. He cannot stay sitting for a full 30 minutes, even in a comfortable 

chair. (Tr. 84) When he visits his mother-in-law in Yuma, he cannot drive but reclines in 

the front seat for fifteen to thirty minutes at a time. (Tr. 85) He needs pain medication to 

last a full thirty minutes and will not make the trip if he has not taken any. Id. He can 

only work at a computer for ten to twenty minutes at a time. Id. 

 In the past, Day has worked as an assistant engineer at a radio station, a security 

guard supervisor, an auto-repair shop manager and a call center worker. (Tr. 86-88) Only 

the last was a sedentary job. Id. 

 Day feels overwhelmed by groups of people both in class and in public. (Tr. 89) 

He has a panic attack every four to five weeks and will move people out of the way to 

escape. (Tr. 89-90) He has had arguments in public as a result. (Tr. 90) 

 Day was launched through a windshield face first in a car wreck when he was 

around seven or eight months old. Id. He had to have surgery on his brain and skull. Id. 

His doctor at the VA told him he has brain damage in his right frontal lobe as a result. Id. 

He testified to having a hard time concentrating around people or noise and having a bad 

memory. (Tr. 90-91) 

 Day also has trouble sleeping due to pain and has been diagnosed with sleep 

apnea (Tr. 91) His pain is mostly in his left knee, right hip and lower spine. Id. He has 

problems with ankle reflexes that he believes are due to his diabetes. (Tr. 92) His attorney 

and he believe he meets listings 12.02, 12.04 and 12.06. Id. 

 Day appeared with counsel before the ALJ a second time on March 2, 2016. (Tr. 

43) He and his wife both claimed that his conditions have worsened since 2013. (Tr. 48) 

Between the two hearings, Day’s performance in school declined because he cannot 

concentrate when he reads. Id. He also has problems with loud noises and when he is 
- 5 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

“surrounded” by two or more people. Id. He claims it got worse that semester. Id. 

 The ALJ brought up VA records that indicate that Day had reported no back pain 

since an injection on his previous visit, that he was exercising with an Xbox and exercise 

ball, and that he was taking boxing classes. (Tr. 51) Day denied all of that and claimed 

not to know the doctor who wrote the report. (Tr. 52) He testified that he has been taking 

medication for nerve pain since late 2014. (Tr. 54). He cannot use stairs without pain. (Tr. 

55) 

 Day had recently been seen for anxiety and panic attacks, which he has every time 

he leaves his house beginning February of 2016. (Tr. 53-54) He has trouble breathing, 

vomits and becomes agitated. (Tr. 53) He has lesser panic attacks in his home when he 

has to make any kind of decision. (Tr. 54) He had a panic attack before the hearing that 

caused him to forget the cane he uses to walk in case he falls. (Tr. 55) He testified that his 

problems with social interaction have gotten much worse, even with his wife and 

daughter. Chris Salvo, a vocational expert (VE), also testified at the hearing. (Tr. 57) He 

and the judge reviewed Day’s work history and physical limitations. (Tr. 57-62) This 

included a question regarding a 2013 evaluation from Scott Krasner, M.D., who found 

that Day can only stand or walk for half an hour at a time, with a maximum of four hours 

standing in an eight-hour time period. (Tr. 61, 518) 

 The ALJ explained Day’s mental limitations to the VE, stating that Day “should 

be able to meet the basic mental demands of semi-skilled work in low social context 

including the ability to perform complex duties or tasks, to maintain alertness and close 

attention, to understand, remember, and carry out detailed instructions, and to set realistic 

goals or make plans independently of others.” (Tr. 61) The ALJ also stated that Day is 

“limited in interacting with the general public... in accepting instructions and responding 

appropriately to criticism from supervisors... in his ability to get along with coworkers or 

peers without distracting them or exhibiting behavioral extremes... [and] he reports anger 

issues.” (Tr. 62) The ALJ added that “his necessary contact with co-employees and 

supervisors is at the most brief, superficial and intermittent. And that he has no necessary 
- 6 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

contact with the general public or customers.” Id. 

 The VE testified that one job Day could perform would be small products 

assembler, DOT code 706.684-022, which provides 17,500 job openings in the country. 

(Tr. 63) He then listed three optical goods industry jobs that total at least 9000 openings: 

Final assembler, DOT code 713.687-018; lensing server, DOT code 713,687-026; and 

eyeglass polisher, DOT code 713.684-038. (Tr. 63) He also recommended addresser, 

DOT code 209.587-010, which adds another 5000. (Tr. 63-65) When the ALJ 

asked about Day’s trouble with concentration and being around multiple people, the VE 

testified that he would eliminate both of the assembly-type jobs and most of the addresser 

positions. (Tr. 65-66) He also testified that he eroded the job numbers for small products 

assembler by 50% to account for the need to shift between sitting and standing. (Tr. 67-

68) The optical goods jobs would not need any erosion because they would allow for this. 

(Tr. 68) 

 Day’s counsel asked if those jobs would tolerate employees being off task up to 

ten percent of the day. (Tr. 69) The VE stated that such an employee would be let go 

from those jobs. (Tr. 70) He also stated that these jobs would not allow agoraphobic 

employees to work from home, except for a small percentage of addressers. Id. All of the 

jobs were examined in a national context, with no particular analysis of regional 

availability. (Tr. 62-66) 

Claim Evaluation 

 Social Security Administration (SSA) regulations require that disability claims be 

evaluated pursuant to a five-step sequential process. 20 C.F.R. §§ 404.1520, 416.920. The 

first step requires a determination of whether the claimant is engaged in substantial 

gainful activity. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If so, then the claimant is 

not disabled, and benefits are denied. Id. 

 If the claimant is not engaged in substantial gainful activity, the ALJ proceeds to 

step two, which requires a determination of whether the claimant has a severe impairment 

or combination of impairments. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). In making a 
- 7 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

determination at step two, the ALJ uses medical evidence to consider whether the 

claimant’s impairment significantly limits or restricts his or her physical or mental ability 

to do basic work activities. Id. Residual functional capacity is defined as that which an 

individual can still do despite his or her limitations. 20 C.F.R. §§ 404.1545, 416.945. 

 Upon a finding of severity, the ALJ proceeds to step three, which requires 

a determination of whether the impairment meets or equals one of several listed 

impairments that the Commissioner acknowledges are so limiting as to preclude 

substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); 20 C.F.R. Pt. 

404, Subpt. P, App.1. If the claimant’s impairment meets or equals one of the listed 

impairments, then the claimant is presumed to be disabled, and no further inquiry is 

necessary. Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993). If the claimant’s 

impairment does not meet or equal a listed impairment, evaluation proceeds to the next 

step. 

 The fourth step requires the ALJ to consider whether the claimant has sufficient 

residual functional capacity (RFC) to perform past relevant work. 20 C.F.R. §§ 

404.1520(a)(4), 416.920(a)(4). If yes, then the claim is denied. Id. If the claimant cannot 

perform any past relevant work, then the ALJ must move to the fifth step, which requires 

consideration of the claimant’s RFC to perform other substantial gainful work in the 

national economy in view of claimant’s age, education, and work experience. 20 C.F.R. 

§§ 404.1520(a)(4), 416.920(a)(4). 

The ALJ’s Findings 

 At step one of the disability analysis, the ALJ found that there was no evidence 

that Day had engaged in substantial gainful activity since March 1, 2013, the alleged 

onset date. (Tr. 24) At step two of the disability analysis, he found that Day “has the 

following severe impairments: status post lower extremity fracture with surgical repair; 

bipolar disorder; diabetes mellitus.” Id. He also found that Day had several other 

medically determinable impairments that “are stable with conservative treatment 

measures” and are considered non-severe. (Tr. 24-25) These included that Day had been 
- 8 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

diagnosed with migraines and prescribed medication for them. (Tr. 25) 

 At step three of the disability analysis, the ALJ found that Day “does not have any 

impairment or combination of impairments that meets or medically equals the severity of 

one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.” (Tr. 25) 

Specifically, the ALJ found that Day’s mood disorder did not “satisfy the requirements 

for any listed mental impairments, including the closest analogous listing, 12.04, for 

affective disorders.” (Tr. 26) 

 At step four of the disability analysis, the ALJ found that Day has the RFC to 

“perform light work as defined in 20 CFR 404.1567(b)... [and] should be able to meet 

the basic mental demands of semiskilled work in a low social context, including the 

ability to perform complex duties or tasks, maintain alertness and close attention, to 

understand, remember and carry out detailed instructions, and set realistic goals or make 

plans independently. [His] necessary contact with co-employees and supervisors should 

be at most brief, superficial and intermittent and [] he [should] have no necessary contact 

with the general public or customer[s] and not in proximity to 2 or more people.” (Tr. 28-

29) 

 The ALJ stated that “[i]n making this finding, [he has] considered all symptoms 

and the extent to which these symptoms can reasonably be accepted as consistent with the 

objective medical evidence and other evidence, based on the requirements of 20 CFR 

404.1529 and SSR 96-4p. [He has] also considered opinion evidence in accordance with 

the requirements of 20 CFR 404.1527 and SSRs 96-2p, 96-5p, 96-6p and 06-3p.” (Tr. 29) 

However, “whenever statements about the intensity, persistence, or functionally limiting 

effects of pain or other symptoms are not substantiated by objective medical evidence, 

[he] must consider other evidence in the record to determine if the claimant’s symptoms 

limit the ability to do work-related activities.” Id. 

 The ALJ found that Day’s “medically determinable impairments could reasonably 

be expected to cause [his] alleged symptoms; however, [his] statements concerning the 

intensity, persistence and limiting effects of these symptoms are not entirely consistent 
- 9 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

with the medical evidence and other evidence in the record.” (Tr. 29-30) He first 

reviewed Day’s physical health and made findings broadly consistent with Day’s 

previous RFCs. (Tr. 30-31) 

 The ALJ then reviewed Day’s mental health, specifically his allegations of bipolar 

and anger issues; feelings of hopelessness, sadness and anger; and his treatment for both. 

(Tr. 30-32) He mentioned that Day felt irritated about medical testing for chronic 

headaches but that he was noted to be safe and stable at this visit. (Tr. 32) He also 

reviewed Day’s history of diabetes mellitus. (Tr. 32-33) He concluded that “Mr. Day’s 

complaints have been granted every reasonable benefit of the doubt in findings[.] Mr. 

Day is limited to light exertional activity with additional postural, environmental and 

mental limitations. However, any allegations of greater limitations simply cannot [] 

reasonably be supported by the overall medical evidence.” (Tr. 33) The ALJ noted that 

the mental assessment at the reconsideration level had been given great weight and 

adopted within the RFC. (Tr. 35) He judged Day unable to perform any past relevant 

work. Id. 

 At step five of the disability analysis, the ALJ found that there are a significant 

number of jobs in the national economy that Day can perform. (Tr. 36) He did this by 

“ask[ing] the vocational expert whether jobs exist in the national economy for an 

individual with the claimant’s age, education, work experience and residual functional 

capacity.” Id. The ALJ listed small products assembly “when eroding this number by half 

due to sit/stand option with 17,500 jobs in the national economy”; addresser, with nearly 

5000 jobs; and three positions in the optical goods industry totaling 9000 jobs: optical 

goods final assembler, lens inserter and eyeglass polisher. (Tr. 37) He also stated that the 

VE recommended that “the assembly type of other work identified would be eroded by 

approximately 50%.” Id. He concluded that Day is not disabled under SSR 00-4p without 

giving a total number of jobs. Id. 

Standard of Review 

 To qualify for disability benefits the claimant must demonstrate, through 
- 10 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

medically acceptable clinical or laboratory standards, an inability to engage in substantial 

gainful activity due to a physical or mental impairment that can be expected to last for a 

continuous period of at least twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). 

“An individual shall be determined to be under a disability only if his physical or mental 

impairment or impairments are of such severity that he is not only unable to do his 

previous work but cannot, considering his age, education, and work experience, engage in 

any other kind of substantial gainful work which exists in the national economy, 

regardless of whether such work exists in the immediate area in which he lives, or 

whether a specific job vacancy exists for him, or whether he would be hired if he applied 

for work.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 

 The findings of the Commissioner are meant to be conclusive. 42 U.S.C. §§ 

405(g), 1383(c)(3). The decision to deny benefits “should be upheld unless it contains 

legal error or is not supported by substantial evidence.” Orn v. Astrue, 495 F.3d 625, 630 

(9th Cir. 2007). 

 Substantial evidence is defined as “such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion.” Id. It is “more than a mere scintilla but 

less than a preponderance.” Id. 

 “Where evidence is susceptible to more than one rational interpretation, the 

[Commissioner’s] decision should be upheld.” Orn, 495 F.3d at 630. “However, a 

reviewing court must consider the entire record as a whole and may not affirm simply by 

isolating a specific quantum of supporting evidence.” Id. 

 The Commissioner need not accept the claimant’s subjective testimony of 

disability, but if she decides to reject it, she must justify her decision. Valentine v. 

Comm'r Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009). “[W]ithout affirmative 

evidence showing that the claimant is malingering, the Commissioner’s reasons for 

rejecting the claimant’s testimony must be clear and convincing.” Id. 

Discussion 

 1. Step 2 Severity of Day’s Migraines 
- 11 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

 Day argues that the ALJ erred in finding Day’s migraines to be a non-severe 

impairment. He cites several occasions when he had to go to the emergency room for 

pain. (Tr 25 (citing 775-6)) He also points out that under SSR 96-3P, a severe impairment 

should be found where the symptoms of a malady have more than a minimal effect on 

work, not just where medical evidence establishes severity. (Doc. 17 at 14) 

 The defendant responds that the Ninth Circuit upholds ALJs’ disability 

determinations when claims continue past step two and the ALJ still considers all 

impairments during steps four and five. Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 

2005). She supports this by pointing to comments in the record that speak of “careful 

consideration of the entire record” and that the ALJ has “considered all symptoms.” (Tr. 

29) Further, she states that Day has not reported issues with headaches since 2014 and 

that the ALJ considered many other limitations in the step four RFC. 

 Day also alleges only that “[a]lthough treated only with medications, these 

migraines could reasonably be expected to cause a reduction in concentration, 

persistence, and pace, as well as lapses in attendance.” (Doc. 17 at 14) (emphasis added) 

He does not allege that they actually do so, or that the medicine is inadequate. He does 

not list any further hospital visits since 2014. 

 The defendant also states that if there was error, it was harmless because it was not 

consequential to the disability determination, which is meant to be based on the whole 

record. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). The plaintiff must show 

that the alleged error “likely... affect[ed] the outcome.” Id. at 1119-20. 

 Day cannot do this purely in a step two context. That is, Day’s contention that the 

ALJ erred in deciding that his migraines are not severe is without merit, and he must 

instead show that the migraines were disregarded later in the disability determination 

process. 

 In short, the ALJ made a valid determination that Day’s migraines were not severe 

because the record indicates they are under control. Even if this was not true, the error 

would be harmless because the final disability determination is based on both severe and 
- 12 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

non-severe limitations. 

 2. Step 4 RFC Determination 

 Day alleges that the ALJ identified how his migraines limit him, but did not factor 

those limitations into the RFC in step four. He further alleges that the ALJ found 

moderate concentration, persistence and pace limitations in step two that he did not 

address in the RFC. (Tr. 28-29) Day contends that his migraines can leave him unable to 

function for possibly more than a day at a time, and that the ALJ did not take that into 

consideration. 

 An ALJ may reject a treating or examining doctor’s opinion only by providing 

specific and legitimate reasons supported by substantial evidence, which can be satisfied 

with a detailed and thorough summary of the facts and conflicting clinical evidence. 

Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). He errs where he does not 

explicitly reject a medical opinion, but “rejects [it] or assigns it little weight while doing 

nothing more than ignoring it.” Id. at 1012-13. However, “the ALJ is not required to 

discuss evidence that is neither significant nor probative.” Howard ex rel. Wolff v. 

Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). 

 Here, the ALJ indirectly rejected the migraine issue. He stated that Day was 

prescribed medicine for them and is “safe and stable.” (Tr. 32) The record indicates that 

the medication was effective in reducing his pain to a manageable level, which would not 

significantly affect his RFC. (Tr. 758) Neither Day nor his counsel raised the migraine 

issue during either of his hearings. Day has not reported issues with headaches since he 

received treatment in 2014. (Doc. 18 at 4) Given that there was no doctor’s opinion about 

continuing migraines, the ALJ did not need to address in detail what was by all 

appearances no longer an issue. He did not err by not considering Day’s migraines in step 

four, but simply glossed over an issue that evidence indicated was under control. 

 Day notes that the ALJ determined that “[w]ith regard to concentration, 

persistence or pace, [Day] has moderate difficulties.” (Tr. 28) He argues this finding 

clashes with the ALJ’s later determination that Day can “maintain alertness and close 
- 13 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

attention” at a job. (Tr. 29) Even moderate limitations on concentration, persistence and 

adaptation can seriously impact the ability to work. Andrews v. Shalala, 53 F.3d 1035, 

1043-44 (9th Cir. 1995) 

 However, the ALJ accounted for Day’s limitations on concentration, persistence 

and pace in his determination that Day was limited to “basic mental demands of 

semiskilled work in a low social context.” (Tr. 28) The ALJ explained this limitation, 

remarking that Day’s mental abilities as reported in May 2015 support his conclusion that 

Day can “perform complex duties or tasks, maintain alertness and close attention, [] 

understand, remember and carry out detailed instructions, and set realistic goals or make 

plans independently.” (Tr. 32) 

 3. Step 5 Significant Job Numbers 

 Day’s most pressing concern is that the ALJ erred in finding that there is work 

which exists in the national economy per the definition in 42 U.S.C. § 423(d)(2)(A). This 

requires that such work “exists in significant numbers either in the region where such 

individual lives or in several regions of the country.” Id. The Commissioner must 

establish job numbers. Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). An ALJ 

meets the burden of establishing job numbers through the testimony of a VE who answers 

a hypothetical that “contain[s] all of the limitations that the ALJ found credible and [is] 

supported by substantial evidence in the record.” Bayliss v. Barnhart, 427 F.3d 1211, 

1217-18 (9th Cir. 2005). 

 The ALJ found that Day has the RFC to “perform light work as defined in 20 CFR 

404.1567(b)... and [that] he have no necessary contact with the general public or 

customer[s] and not [be] in proximity to 2 or more people” (Tr. 28) The ALJ then 

concluded from the VE testimony that there are 13,875 jobs in the national economy that 

Day can perform. 

 Specifically, the ALJ found Day could perform 17,500 “small products assembly” 

jobs, eroded by half once for Day’s issues sitting or standing and again for his issues with 

coworkers, leaving 4,375 jobs. Day could also perform 9000 optical goods jobs, eroded 
- 14 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

to 4,500 to account for his inability to be near coworkers. Last, Day could perform 5,000 

addresser jobs. Added up, this totals 13,875 jobs. 

 The ALJ, however, misrepresents the testimony of the VE by stating that “[u]pon 

further questioning the vocational expert... identified that there was no guarantee of the 

proximity of co-workers to the hypothetical individual and that in his experience the 

assembly type of other work identified would be eroded by approximately 50%.” (Tr. 37) 

In fact, the VE recommended eliminating the assembly jobs altogether, along with most 

of the addresser positions. (Tr. 65-66) This leaves Day with only a fraction of the 5000 

total addresser jobs. 

 The court finds that the ALJ erred when he said there were 13,875 jobs available 

to Day. Based on the VE testimony, Day can only perform some unidentified fraction of 

the 5000 addresser positions. 

 The lowest number of jobs either party cites as significant is 10,000. Johnson v. 

Chater, 108 F.3d 178, 180 (8th Cir. 1987). Relying on Johnson, the Ninth Circuit found 

that 25,000 jobs nationwide was significant. 

 The Ninth Circuit has “never found a similar number [to 12,600 jobs] significant.” 

Lemauga v. Berryhill, 686 F. App'x 420, 422 (9th Cir. 2017). In Selimovic, the Arizona 

District Court found 13,110 jobs was not significant. Selimovic v. Colvin, No. CIV 13-

1248-PHX-MHB, 2014 WL 4662251, at *10 (D. Ariz. Sept. 18, 2014). 

 No previous court has found that 5000 jobs is a significant number as required in 

42 U.S.C. § 423(d)(2)(A). The ALJ’s finding that Day can perform work that exists in 

significant numbers is not supported by substantial evidence. 

 4. Remedies 

 Day seeks remand for calculation and award of benefits. This is appropriate when 

the plaintiff has satisfied the three-part credit-as-true standard: “(1) the record has been 

fully developed and further administrative proceedings would serve no useful purpose; 

(2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether 

claimant testimony or medical opinion; and (3) if the improperly discredited evidence 
- 15 - 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

were credited as true, the ALJ would be required to find the claimant disabled on 

remand.” Garrison, 759 F.3d at 1020 (9th Cir. 2014). In contrast, courts must “remand 

for further proceedings when, even though all conditions of the credit-as-true rule are 

satisfied, an evaluation of the record as a whole creates serious doubt that a claimant is, in 

fact, disabled.” Id. at 1021. 

 Here, the standard has been fulfilled. The record already contains everything 

necessary to dispose of this case. The ALJ has failed to provide legally sufficient reasons 

for the number of jobs he believes Day can perform. If the job numbers provided by the 

VE were credited as true, the ALJ would be required to find the claimant disabled due to 

lack of significant numbers of jobs. 

 IT IS ORDERED that the final decision of the commissioner is reversed. The case 

is remanded for payment of benefits. 

 The Clerk of the Court is directed to prepare a judgment and close this case. 

 Dated this 3rd day of July, 2018.