KENDALL ANTHONY KILLMAN v. LELAND DUDEK, Acting Commissioner of Social Security
Case No. 2:24-cv-01337-EJY
UNITED STATES DISTRICT COURT DISTRICT OF NEVADA
July 18, 2025
Pending before the Court is Plaintiff Kendall Killman‘s Complaint for Review of Final Decision of the Commissioner of Social Security and his Brief in support thereof. ECF Nos. 6, 16. The Court reviewed Plaintiff‘s Brief, the Commissioner‘s Brief in response (ECF No. 18), and Plaintiff‘s Reply (ECF No. 19). The Court finds as follows.
I. Background
Plaintiff filed an application for a survivor claim of Child Disability Benefits (“CDB“) on November 1, 2019, alleging a disability onset date of January 1, 2015. Administrative Record (“AR“) 250-53. Plaintiff claimed his disability was the result of the following impairments: Ehlers-Danlos Syndrome (“EDS“), scoliosis, fibromyalgia, an occult tethered cord, anxiety, mast cell activation syndrome, depression, postural orthostatic tachycardiа syndrome, syringomyelia, and irritable bowel syndrome. AR 278. This claim was denied on April 17, 2020, with the state agency determining that although they found Plaintiff‘s condition was severe, “it [was] expected to improve and ... [was] not expected to remain severe enough for 12 months in a row to keep [Plaintiff] from working.” AR 112. This finding was based in part on the fact that Plaintiff had recently undergone surgery for his tethered cord and reported significant improvement. AR 103. Plaintiff filed a request for reconsideration alleging his condition had not improved and claiming a new disability onset date of May 31, 2020. AR 114. Plaintiff‘s claim was denied again upon reconsideration on April 22, 2022. AR 135-38.
II. Standard of Review
The reviewing court shall affirm the Commissioner‘s decision if the decision is based on correct legal standards and the legal findings are supported by substantial evidence in the record.
“When the evidence before the ALJ is subject to more than one rational interpretation, we must defer to the ALJ‘s conclusion.” Batson, 359 F.3d at 1198, citing Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). A reviewing court, however, “cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision.” Stout v. Comm‘r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (internal citation omitted). Finally, the court may not reverse an ALJ‘s decision on account of an error that is harmless. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (internal citation omitted). “[T]he burden of showing that an error is harmful
To establish whеther a claimant is disabled under the Act, there must be substantial evidence that:
(a) the claimant suffers from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months; and
(b) the impairment renders the claimant incapable of performing the work that the claimant previously performed and incapable of performing any other substantial gainful employment that exists in the national economy.
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999), citing
The ALJ employs a five-step sequеntial evaluation process to determine whether a claimant is disabled within the meaning of the Act. Bowen v. Yuckert, 482 U.S. 137, 140 (1987);
The five steps are:
Step 1. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is “not disabled” within the meaning of the Social Security Act and is not entitled to disability insurance benefits. If the claimant is not working in a substantially gainful activity, then the claimant‘s сase cannot be resolved at step one and the evaluation proceeds to step two. See
Step 2. Is the claimant‘s impairment severe? If not, then the claimant is “not disabled” and is not entitled to disability insurance benefits. If the claimant‘s impairment is severe, then the claimant‘s case cannot be resolved at step two and the evaluation proceeds to step three. See
Step 3. Does the impairment “meet or equal” one of a list of specific impairments described in the regulations? If so, the claimant is “disabled” and therefore entitled to disability insurance benefits. If the claimant‘s impairment neither meets nor equals one of the impairments listed in the regulations, then the claimant‘s case cannot be resolved at step three and the evaluation proceeds to step four. See
Step 4. Is the claimant able to do any work that he or she has done in the past? If so, then the claimant is “not disabled” and is not entitled to disability insurance benefits. If the claimant cannot do any work he or she did in the past, then the claimant‘s case cannot be resolved at step four and the evaluation proceeds to the fifth and final step. See
Step 5. Is the claimant able to do any other work? If not, then the claimant is “disabled” and therefore entitled to disability insurance benefits. See
Id. at 1098-99 (internal alterations omitted).
III. The ALJ‘s Decision
At step one, the ALJ determined Plaintiff had not engaged in substantial gainful activity since the alleged onset date of May 31, 2020. AR 24. At step two, the ALJ found Plaintiff suffered from the following severe impairments: EDS, degenerative disc disease of the thoracic, cervical, and lumbar spine, bilateral osteonecrosis of the femur and tibia, autism, depression, and anxiety. AR 25. However, the ALJ found all of Plaintiff‘s other claimed impairments were either non-severe or insufficiently represented in the record since June of 2020. Id. At step three, the ALJ found that neither Plaintiff‘s physical nor mental impairments met or medically equalеd the severity of any listed impairments in 20 C.F.R., Part 404, subpt. P, App. 1 (the “Listings“). AR 25-30.
In preparation for step four, the ALJ found that Plaintiff had the following residual functional capacity (“RFC“):
[P]erform light work as defined in
20 CFR 404.1567(b) except the claimant can lift, carry, push and/or pull 20 pounds occasionally and 10 pounds frequently. The claimant can stand and/or walk for 4 hours in an 8-hour workday. The claimant can occasionally operate foot controls with the bilateral feet, and frequently operate hand controls with the bilateral hands. The claimant can occasionally reach overhead, and frequently reach in all other directions, with the bilaterally upper extremities. The claimant can frequently handle, finger, and feel with the bilateral hands. The claimant can occasionally climb ramps and stairs, and never climb ladders, ropes, or scaffolds. The claimant can occasionally stoop, kneel, crouch, or crawl. The claimant can never work at unprotected heights. The claimant can occasionally work around moving mechanical parts, and can occasionally operatea motor vehicle. The claimant can occasionally tolerate work in extreme cold, extreme heat, and around vibration. The claimant can understand, remember, and carry out detailеd but not complex tasks. The claimant can frequently interact with supervisors, but only occasionally interact with the public and co-workers.
AR 30.
In arriving at this RFC determination, the ALJ considered Plaintiff‘s subjective symptom testimony, including testimony regarding his chronic pain, limited mobility, and suicidal thoughts, and found that Plaintiff‘s medically determinable impairments could reasonably cause these alleged symptoms. AR 30-37. However, the ALJ determined the alleged intensity, persistence, and limiting effects of the symptoms were not consistent with the medical evidence. Id. In particular, the ALJ noted that Plaintiff‘s pain responded well to medical marijuana, and he was receiving no other treatment for pain. AR 32. The ALJ also noted that the record indicated multiple occasions in which different medical providers had recommended physical therapy, but Plaintiff had never followed through with those recommendations. AR 33-34. The ALJ found the record did not support Plaintiff‘s testimony that he required a wheelchair as no assistive device for ambulation was ever prescribed. AR 34. Regarding Plaintiff‘s mental health symptoms, the ALJ noted the record indicated only a single medication being briefly prescribed for depression, with Plaintiff being resistant to attempting other medications and instead reporting positive results with psychotherapy. AR 34-35.
The ALJ also considered the mediсal opinions of: (1) state agency consultants Hala Abdel Aziz, Susan Ribeiro, Mark Short, and Ana Olivares; (2) Plaintiff‘s treating psychologist and pediatrician Michelle Gravley and Wesley Robertson, respectively; (3) Judith Friedman and Stephanie Punt, psychologists at UCLA; and (4) Jill Silverman, a rheumatologist with New York Physicians. AR 37-41. The ALJ found the opinions of the state consultants to be partially to mostly persuasive, save for that of Dr. Ribeiro, noting that Plaintiff‘s positive response to treatment coupled with his refusal to attempt physical therapy suggested he was less limited than the reports suggested. AR 38-40. The ALJ also found Drs. Friedman and Punt‘s report to be partially persuasive, noting that it did not include a function-by-function analysis or describe Plaintiff‘s limitations in vocationally relevant terms. AR 40. The ALJ found the extreme limitations described in Dr.
The ALJ also considered a letter submitted by Plaintiff‘s mother, Trudy Para-Killman. The ALJ noted that although Ms. Para-Killman made extreme statements of limitation, she lacked medical training and the record suggested she may not be consistently observing Plaintiff because of her non-profit work. AR 42. The ALJ also noted the record indicated Ms. Para-Killman had repeatedly urged Plaintiff to engage in treatment such as physical therapy, but Plaintiff declined to do so. Id.
Step four required no findings because Plaintiff has no past relevant work. Id. At step five, the ALJ concluded that based on Plaintiff‘s age, education, work experience, and RFC, there were jobs that Plaintiff could have performed that existed in significant numbers in the national economy. AR 43. The Vocational Expert testified that if Plaintiff were limited to slightly below the light work level, he could perform the following representative occupations: Small Products Assembler (DOT# 706.684-022), Inspector (DOT# 559.687-074), and Garment Sorter (DOT# 222.687-014). AR 43. The Vocational Expert also testified that, even if Plaintiff were limited to the sedentary work level, he could still perform the following representative occupations: Table Worker (DOT# 739.687-182), Lens Inserter (DOT# 713.687-026), and Agricultural Sorter (DOT# 521.687-086). Id.
Based on the above, the ALJ concluded that Plaintiff “has not been under a disability, as defined in the Social Security Act, from May 31, 2020, through the date of this decision.” AR 44. Therefore, the ALJ denied Plaintiff‘s applications for CDB, finding Plaintiff was not disabled under section 223(d) of the Social Security Act through September 11, 2023. AR 45.
Plaintiff‘s three-page opening brief is divided into three categories: Abuse of Discretion, Abuse of Power/Bias, and Error of Law. ECF No. 16 at 4-6. Under the Abuse of Discretion heading Plaintiff asserts the ALJ improperly discounted the medical opinions of Dr. Robertson, his pediatrician, Dr. Gravley, his psychologist since 2009, and Dr. Friedman, a psychologist with UCLA. Id. at 4. Under the Abuse of Power/Bias heading, Plaintiff asserts the ALJ assigned to his case only approves between 3-14% of disability claims, which Plaintiff argues “is indicative of a gеneral bias towards those with disabilities.” Id. Under the Error of Law heading, Plaintiff cites to several portions of the administrative record as well as several categories of listed impairments under Subpart P, Appendix 1. Id. at 6. Also under this heading, Plaintiff states that at a previous hearing the ALJ “ordered [Plaintiff and his mother] out of her courtroom until [he] hired a lawyer,” which Plaintiff argues was unethical. Id. Separately, and most importantly to this review, Plaintiff avers there is additional evidence to support his claim; that is, Plaintiff represents he has been approved for “PCA hours”1 for assistance with bathing, grooming, and housekeeping, though he includes no such evidence in the more than sixty pages of attachments to his brief. Id. at 5.
A. Abuse of Discretion.
Under the current regulations for claims filed after March 27, 2017, an ALJ does not “defer or give any specific evidentiary weight to any medical opinions.” Cross v. O‘Malley, 89 F.4th 1211, 1214 (9th Cir. 2024) (citing
In the present case, Plaintiff challenges the ALJ‘s discounting the opinions of Wesley Robertson, M.D., Michelle Gravley, Psy.D, and Judith Leone Friedman, Ph.D. However, Plaintiff provides no legal arguments or citations to the record to support this challenge. ECF No. 16 at 4. Rather, Plaintiff generally refers to the education and experience of these medical providers without indicating how their opinions are supported by the record or which portions of the ALJ‘s assessment he believes were erroneous. Nonetheless, the Court liberally construes Plaintiff to be arguing the ALJ did not provide an explanation supported by substantial evidence for discounting the opinions of these three medical providers, and considers the ALJ‘s discussion of the opinions in sequence.
As the ALJ noted, Dr. Robertson indicated, among other limitations, in an RFC questionnaire that Plaintiff could perform less than the full range of sedentary work and was limited to sitting or standing for less than 2 and half hours per work day. AR 41. The ALJ noted that these severe limitations conflicted with the relatively unremarkable exam findings included in the record, as well as with Plaintiff‘s reporting of the effectiveness of medical marijuana in managing his pain. Id. The ALJ also found Dr. Robertson‘s report did not include any objective findings on examination to support his conclusions, that Dr. Robertson was not a specialist in EDS, and that portions of Dr. Robertson‘s report used relatively vague terms rather than vocationally relevant terms. Id.
The Court finds these last two observations to be in error. Nothing in the two-page questionnaire cited by the ALJ indicated that Dr. Robertson‘s opinion related to EDS or that Dr. Robertson was holding himself out opining on any particular medical diagnosis. AR 1695-96. Instead, Dr. Robertson, an M.D., appears to offer his general medical opinion regarding Plaintiff‘s limitations. Thus, the Court finds a lack of specialization in EDS is not relevant to whether Dr. Robertson‘s opinion is of any persuasive value. Further, although the ALJ describes Dr. Robertson‘s opinion as using vague terms, the Court finds this a particularly odd observation as the “opinion” in
Despite finding the ALJ erred in reaching these findings, the same facts also convince the Court that this error is harmless. An ALJ‘s error is harmless where “it is inconsequential to the ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (internal quotation omitted); see also Marsh v. Colvin, 792 F.3d 1170 (9th Cir. 2015) (applying harmless error standard when an ALJ ignored the medical opinion of a treating source). Because Dr. Robertson‘s opinion consists of a two-page form with no objective findings on examination to support the conclusions indicated within, the fact that these conclusions conflicted with the other medical evidence of record, such as normal movement of all four extremities with full strength and improvement with conservative treatment (AR 1267, 1884) provided clear and convincing reasons for discounting Dr. Robertson‘s opinion. The Court is satisfied that the ALJ‘s errors with regards to Dr. Robertson‘s qualifications and supposed use of vague terms did not affect the ultimate outcome.
The ALJ‘s consideration of Dr. Gravley‘s opinions is limited to two sentences. Specifically, the ALJ says Gravley‘s written statements are not persuasive because they are not written in functional terms and address Plaintiff‘s physical pain—an area outside the expertise of a Psy.D. and for which she did not treat him. AR 37. While the fact that the ALJ spent so little timе considering the opinion of a medical provider who has treated Plaintiff for several years is concerning, the Court again finds this harmless error. A review of the written statements in question reveals they are narrative reports of Plaintiff‘s struggles as relayed to Dr Gravley in therapy sessions, rather than opinions on Plaintiff‘s functional limitations. See generally, AR 16-18, 1206-07, 1260-61, 1309-12. While the statements indicate Plaintiff discussed his struggles with EDS and chronic pain during therapy, as well as his past negative experiences seeking treatment, the ALJ correctly notes that Dr. Gravley, as Plaintiff‘s therapist, did not treat his EDS or chronic pain. Further, while Dr. Gravley mentions Plaintiff‘s diagnoses of General Anxiety Disorder and Major Depressive Disorder, conditions for which she was actually treating him, she does so in the context of describing his past struggles with the conditions and provides no opinion on how these conditions would limit Plaintiff‘s ability to function or obtain gainful employment.
Further, Dr. Gravley‘s observations regarding Plaintiff‘s mental impairments, the conditions for which she has been treating him, do not appear to be medical opinions the ALJ was required to consider under
Based on the foregoing, the Court finds the ALJ‘s evaluation of the medical opinions of these providers is supported by substantial evidence. To the extent the ALJ erred in failing to consider specific portions of any of the above opinions, such error is harmless.
B. Abuse of Power/Bias.
Plaintiff references, and attaches to his Reply, an online article purporting to show the rate of approving disability claims of several ALJs stationed in Orland Park, Illinois. ECF No. 19 at 2, 5-12. Plaintiff argues that these figures, which indicate the ALJ in this case has approved only 5% of applications before her as of November 2024, establish bias and are grounds for reversal. Id. at 2. However, statistics of unrelated rulings by themselves do not suffice to establish bias. See Cope v. Colvin, Case No. 2:15-cv-01744-JRC, 2016 WL 6439940, at *9 (W.D. Wa. Nov. 1, 2016) (“ALJ bias cannot be proven by statistical analysis, but rather any ALJ‘s alleged bias must be judged on a case by case basis.“). Rather, Plaintiff must establish a “conflict of interest or some other specific reason” to rebut the presumption that an ALJ is unbiased. Rollins v. Massanari, 261 F.3d 853, 857-58 (9th Cir. 2001).
C. Error of Law.
Plaintiff cites to several of the listed impairments in the portion of his brief titled “Error of Law,” but provides no argument demonstrating how the ALJ‘s consideration of these listings were in error.4 ECF No. 16 at 6. For example, Plaintiff cites to Listings 1.00, 11.00, 12.00, and 14.00, but Plaintiff does not indicate how the ALJ erred when applying these criteria to the facts of his case. Id. Indeed, the ALJ discussed these Listings at length in part three of her analysis, AR 26-30, and Plaintiff at no point specifies which portion of this analysis contains legal error. Similarly, Plaintiff references the “2,400+ pages of documentation” in the Administrative Record, but does not direct the Court to any part of the record that the ALJ either mischaracterized or failed to consider. ECF No. 19 at 2. While the Court recognizes that Plaintiff is proceeding without counsel, the Court will
D. Additional Evidence.
In his opening brief, Plaintiff represents that since the ALJ issued her decision, he has been awarded 15.5 “PCA hours” by the state of Nevada to assist him with bathing and personal grooming. ECF No. 16 at 5. Plaintiff presents this assertion as “additional evidence to support [his] inability to perform gainful employment.” Id. Under sentence 6 of
Here, Plaintiff‘s opening brief mentions the award of “PCA hours” but provides no actual evidence of such. However, attached to Plaintiff‘s Reply is a three-page print out of an unspecified web page that appears to document approval by Medicaid of a “Screening To Determine The Appropriateness” of personal care services on January 24, 2025, followed by approval for 1,612 units of personal care for bathing/dressing/grooming, toileting, transferring, mobility/ambulation, housekeeping, laundry, essential shopping, and meal prep. ECF No. 19 at 20-22.
Though this screening and subsequent award of personal care hours occurred more than one year after the ALJ‘s September 11, 2023 decision, this does not necessarily preclude evidence of such from being material. Many courts have found evidence dated after the final decision of the Commissioner to nonetheless relate to the period before that decision. See Baker v. Colvin, Case No. 16-cv-00771-EMC, 2016 WL 5869944, at *4 (N.D. Cal. Oct. 7, 2016) (collecting cases). In
Here, evidence that Plaintiff‘s physical impairments are such that he may now require assistance with basic tasks such as bathing and grooming lends support to Dr. Robertson‘s opinion that Plaintiff was limited to carrying less than one pound and was unable to bend or kneel, which the ALJ discounted. AR 41. Similarly, because a finding of disability requires a finding that a claimant is unable to wоrk as a result of a medically determinable impairment “which has lasted or can be expected to last for a continuous period of not less than twelve months,”
Further, although the Commissioner argues Plaintiff “failed to show good cause for the failure to incorporate this evidence earlier in a prior proceeding,” ECF No. 18 at 9, courts have repeatedly found the fact that medical records did not exist at the time of an ALJ‘s decision to establish good cause for their late submission. See, e.g., Burton v. Heckler, 724 F.2d 1415, 1418 (9th Cir. 1984) (“We hold that the fact that the evidence did not exist at the time оf the ALJ‘s decision establishes good cause for [claimant]‘s failure to introduce it before the ALJ.“).
Based on the new evidence provided, the Court finds Plaintiff‘s case is properly remanded for purposes of requiring the ALJ to consider this evidence together with other related material evidence Plaintiff may wish to present.
IT IS HEREBY ORDERED that Plaintiff‘s Complaint seeking reversal of the ALJ‘s decision (ECF No. 6) is GRANTED and the Commissioner‘s decision is REVERSED, and this case is REMANDED pursuant to sentence four of
IT IS FURTHER ORDERED that the Clerk of Court shall close this case and enter judgment accordingly.
Dated this 18th day of July, 2025.
ELAYNA J. YOUCHAH
UNITED STATES MAGISTRATE JUDGE