86 F.4th 838
9th Cir.2023Background
- Glanden has long-standing lumbar degenerative disc disease, wrist pathology (scaphoid necrosis; surgeries), and chronic headaches; he sought benefits for the period Dec 1, 2017–June 30, 2018.
- He had a ~2.5‑year gap in medical records covering the relevant period due to incarceration and lack of health insurance; he testified he could not afford appropriate care and managed symptoms by lying down and limiting activity.
- The ALJ found medically determinable impairments but concluded at step two that none were "severe" (i.e., they did not significantly limit basic work activities) and denied benefits without proceeding further.
- The ALJ relied on the treatment gap, recorded ER notes suggesting drug‑seeking years earlier, perceived noncompliance, and agency reviewers who could not definitively assess limitations for the gap period.
- A state agency expert (Dr. Smiley) testified he would expect the claimant to have needed treatment during the gap but could not specify functional limits without contemporaneous records.
- The Ninth Circuit majority reversed and remanded, holding the step‑two denial premature; a dissent argued substantial evidence supported the ALJ’s step‑two denial and credibility findings.
Issues
| Issue | Glanden's Argument | Kijakazi (Commissioner)'s Argument | Held |
|---|---|---|---|
| 1. Whether ALJ properly denied claim at step two (severity) | De minimis showing met: chronic impairments before/after gap, credible explanation for treatment gap, agency expert expected treatment—ALJ should have proceeded past step two | ALJ permissibly found the record (including treatment gap, lack of contemporaneous records) clearly established no more than minimal limitations | Reversed: claimant met the de minimis threshold; ALJ erred in denying at step two and must continue evaluation on remand |
| 2. Whether ALJ reasonably rejected claimant’s explanation for the treatment gap | Gap due to lack of insurance and inability to afford specialized care; free clinics did not provide necessary treatment, and claimant used non‑medical coping methods | ALJ reasonably inferred that free clinics/ER were available and claimant’s failure to seek care undermines severity claims | Reversed: record does not support ALJ’s finding that free clinics were adequate; claimant provided a plausible reason for the gap |
| 3. Whether ALJ permissibly discounted claimant’s symptom testimony | ALJ failed to give clear and convincing reasons; many ALJ inconsistencies were not clear and convincing and ignored coping measures and longitudinal evidence | ALJ identified lack of contemporaneous objective evidence, treatment gap, prior ER drug‑seeking, and noncompliance—valid reasons to discount testimony | Reversed: ALJ did not provide clear and convincing reasons; symptom testimony supports passing the low step‑two threshold |
| 4. Weight of agency medical expert testimony (Dr. Smiley) | Expert testimony that one would expect treatment during the gap supports remand; expert could not confirm lack of limits given missing records | ALJ found expert "generally persuasive" and relied on lack of definitive limitations as consistent with nonsevere finding | Court: Dr. Smiley’s testimony undermines the ALJ’s conclusion—it supports that the record was inconclusive and step two denial was premature |
Key Cases Cited
- Bowen v. Yuckert, 482 U.S. 137 (Sup. Ct. 1987) (upholding step‑two severity regulation; described step two as a threshold ‘‘screening’’ requiring a de minimis showing)
- Webb v. Barnhart, 433 F.3d 683 (9th Cir. 2005) (step two is de minimis; gaps in treatment do not automatically defeat claimant when other evidence supports symptoms)
- Smolen v. Chater, 80 F.3d 1273 (9th Cir. 1996) (ALJ must provide clear and convincing reasons to reject subjective symptom testimony)
- Edlund v. Massanari, 253 F.3d 1152 (9th Cir. 2001) (remand where ALJ failed to apply de minimis standard at step two)
- Ukolov v. Barnhart, 420 F.3d 1002 (9th Cir. 2005) (affirming step‑two denial where claimant lacked diagnosed impairments and physicians could not verify symptoms)
- Ghanim v. Colvin, 763 F.3d 1154 (9th Cir. 2014) (court must consider the record as a whole when reviewing ALJ findings)
- Coleman v. Saul, 979 F.3d 751 (9th Cir. 2020) (drug‑seeking behavior can be a valid reason to discount testimony where supported by record)
- Burch v. Barnhart, 400 F.3d 676 (9th Cir. 2005) (lack of medical evidence and lack of treatment may support discounting testimony)