SSD/SSI: 2015/16 applications improperly denied by ALJ Marchioro in light of treating physician opinions and Claimant’s testimony as to panic disorder and agoraphobia pursuant to pre-17 regulations… Court initially erred in applying new standard to affirm ALJ… Morris.

Shauna Winters applied for disability benefits in 9/15 and SSI in 12/16, both alleging disability beginning 8/7/15. ALJ John Arkoosh identified that she had severe impairments including history of brain trauma resulting from a brain aneurysm as well as anxiety and ADHD, but that they did not meet or medically equal severity of a listed impairment and that she has only moderate limitations in her ability to interact with others, mental functioning, and ability to adapt or manage herself. She requested a hearing which was held in Boise in 12/17. Arkoosh concluded that she was not disabled 8/7/15 through the date of his decision 4/2/18. She requested review which the Appeals Council granted and remanded for hearing before ALJ Stephen Marchioro. He issued an unfavorable decision 10/16/20. The Appeals Council denied Winters’s appeal. She petitioned this Court to reverse or remand Marchioro’s decision. The Court affirmed Marchioro. Winters moved to alter judgment due to the Court’s reliance on §404.1520c which applies only to cases filed after 3/27/17. The Court agrees that applying the new standard constitutes clear error and submits the following amended order.

For claims filed before 3/27/17 an ALJ determines disability status by considering the opinions of “acceptable medical sources” which include physicians, psychologists, optometrists, and podiatrists. Non-acceptable medical sources (“other sources”) include nurse practitioners, physician assistants, clinical social workers, naturopaths, chiropractors, audiologists, and therapists. The 9th Circuit, based on regulations in effect at the time Winters filed her claim, distinguishes among treating physicians, examining physicians, and non-examining physicians and each is accorded a different weight.

Winters argues that Marchioro inappropriately rejected the opinion of LCSW Tricia Harsch because she submitted the only opinion based on a treating relationship. However, social workers are not “acceptable medical sources” that an ALJ may consider under the pre-17 standard. Marchioro gave her opinion limited weight and provided germane reasons for doing so. He accorded greater weight to the opinions of the state agency reviewing physicians which, on its own, represented a germane reason to discount Harsch’s opinion.

Winters argues that Marchioro failed to give proper weight to her examining physician Psychologist Michael Emery and failed to offer legitimate reasons for rejecting his testimony. He diagnosed Winters with cognitive dysfunction due to aneurysm, anxiety disorder with panic attack, agoraphobia, obsessive compulsive disorder, depression, and childhood sexual trauma. He opined that her short-term memory was markedly impaired and her long-term memory was variable and noted that her social functioning and general adaptation were markedly impaired by memory loss, emotional liability, agoraphobia, and panic attacks. Marchioro discounted Emery’s opinion because it was formulated based on Winters’s “one time visit” and “necessarily based to some extent, perhaps a great extent, on claimant’s self-report and presentation on this single occasion.” That he “examined Plaintiff only once is not a specific, legitimate reason for rejecting a doctor’s opinion.” Xiong (E.D. Cal. 2010). Marchioro’s findings also lacked detailed reasons to support the conclusion that a brief treatment note controverts Emery’s thorough examination and diagnosis. Marchioro’s explanation for discounting Emery’s opinion fails to provide specific and legitimate reasons. He erred in discounting them.

Marchioro erred in finding that Winters’s agoraphobia and panic disorders are non-medically determinable at step 2. He disregarded the record, which includes acceptable medical evidence resulting from psychologists’ examinations and evaluations, as well as Winters’s consistent reporting of panic disorder symptoms. He recognized her impairment when reporting that she “has a history of treatment for obsessive compulsive disorder/panic disorder” but takes issue with Emery’s opinion because his diagnosis represents the only diagnosis. A psychologist is a qualified medical source for diagnosing mental impairments. The regulations do not require that the record include multiple diagnoses. Even if one existed, Winters’s treating physicians including Dr. Lyons, Dr. Bastian, Dr. Gage, and Dr. Morelli all reported that she had symptoms connected to panic disorders. Her panic and agoraphobic disorders were diagnosed by an acceptable medical source using objecting testing.

Marchioro also disregards Winters’s self-reported symptoms related to panic disorders. For example, she reported that she is “just afraid to walk out her door,” she has anxiety about leaving the house alone, and she avoids interactions with others. Marchioro erred in relying on her failure to seek or follow prescribed treatment. She explained that in some instances she has not refilled medications due to negative side effects, financial reasons, and terminated health insurance, and in some instances she has not followed prescribed treatment such as mental health counseling. She provided adequate reasons that may be attributed to her mental impairment rather than her own preferences. Marchioro reports that she “usually goes out of her house every day to perform various activities.” However, her testimony and the record demonstrate that she leaves to attend doctor appointments and counseling and rarely leaves otherwise.

Marchioro found Winters’s panic disorder not medically determinable. As a result he did not consider any resulting limitations at step 4. His error clouded his evaluation of the opinion evidence and her subjective reports. He erred in denying her application.

Remand for an immediate award of benefits proves appropriate. The record is fully developed and further proceedings would serve no useful purpose.

Winters v. SSA, 44 MFR 289, 12/13/22.

Eric Rasmusson (Rasmusson Law Offices), Missoula, of counsel for Olinsky Law Group, for Winters; AUSA Victoria Francis and Special AUSA Sara Moum.

INSURANCE: No coverage under homeowner policy for embezzlement claims… Haddon.

Mountain West Farm Bureau issued a Country Home Policy to Janna & Adam Pummill which was in effect 11/14 to 8/19 when it was converted to a City Squire Policy. It afforded personal liability defense & coverage under Section II — “Farm Liability Coverage,” Coverage F, for bodily injury. Coverage, but not a defense, was provided under Section II, Coverage M, for damage to property of others caused by an insured. Section V provides Umbrella Coverage for bodily injury, property damage, or personal and advertising injury.

Joshua Patterson, Patterson Enterprises Inc. and Rocky Mountain Equipment sued Adam Pummill in Missoula Co. State Court alleging that he and Patterson had joint business dealings in which he as business manager of PEI and RME had full access to their bank accounts, financials, and QuickBooks but never had authority to sign checks. They asserted that he embezzled money from both companies, which caused PEI financial difficulty in 6/17 and to sell equipment at or below market value to avoid repossession. An audit disclosed that he had embezzled hundreds of thousands of dollars “to fund his lavish lifestyle” including $5,000 of company funds for Janna’s breast augmentation surgery, personal truck payments, and non-business-related expenses.

The complaint asserted breach of duty of loyalty, breach of duty of care, conversion, unjust enrichment, tortious interference with business relations or prospective economic advantage, NIED, negligence, actual & constructive fraud, and actual malice.

Adam demanded coverage for defense. Mountain West assumed defense under a full reservation of rights.

Janna sued Patterson in Missoula Co. State Court claiming that he authored and published a Facebook post about her that disclosed private healthcare information. Patterson counterclaimed against Janna alleging conversion and unjust enrichment for using company funds for her breast augmentation. The counterclaims were consolidated into the underlying action. Janna demanded coverage under the policy for defense. Mountain West assumed defense under full reservation of rights.

Mountain West requests a declaration that it no longer has a duty to defend and has no duty to indemnify Pummills. A hearing was held 11/30/22.

Pummills acknowledged in their answer to Mountain West’s 1st amended complaint that “bodily injury” was not articulated in the underlying action and that the Patterson counterclaims do not allege “bodily injury” as defined in Coverage F. Given their failure to file a statement of disputed facts in response to Mountain West’s statement, no genuine material dispute of fact exists, including that the underlying actions do not allege “bodily injury.”

Pummills do not assert that “property damage” is applicable in the underlying actions that establish coverage. All allegations are economic and do not constitute “property damage” under Montana law. Windfall (D.Mont. 2016) (“Under Montana law, there is no ‘property damage’ when only economic damage is alleged in the underlying complaint.”) (citing Graber (Mont. 1990)).

The underlying allegations against Adam involve his role as PEI’s and RME’s business manager providing access to company finances and accounting systems to embezzle money and thereby cause them to lose money and credibility. Similarly, the allegations against Janna concern conversion and unjust enrichment, tied directly to business and economic litigation issues. No “occurrence” exists when an insured acts intentionally and “the consequences of those acts are objectively intended or expected from the standpoint of the insured.” Fisher (Mont. 2016). The underlying allegations asserted that Pummills intended their actions and the consequences. “Property damage’ caused by an “occurrence” is not alleged.

Summary judgment is granted for Mountain West.

Mountain West Farm Bureau Mutual Ins. v. Pummill, 44 MFR 288, 12/1/22.

Bradley Luck & Leah Handelman (Garlington, Lohn & Robinson), Missoula, for Mountain West; James O’Brien (O’Brien Law Office), Missoula, for Pummills.

INSURANCE: Injured driver of leased mail truck employed by USPS contractor excluded from auto policy coverage under truck policy by Comp Exclusion because contractor had statutory obligation to provide comp even though it did not do so… summary judgment for insurer on remand from reversal of summary judgment for insurer based on Employee Exclusion… Morris.

Triple L maintained contracts with the USPS to deliver mail to rural areas near East Glacier. It owned no trucks and directly employed no drivers, but contracted with 3rd parties for trucks and drivers. It obtained its drivers from Phoenix, RCM. and leased its trucks from Penske.

Jeffrey Love is president of Triple L. His wife Milka is president/secretary/treasurer. Triple L initially employed drivers to perform its USPS contracts. Milka formed Phoenix in 2004 and Triple L transferred its drivers to Phoenix partly as a means of avoiding higher work comp rates that resulted from Jeffrey having been injured while working for Triple L. Triple L and Phoenix are registered under the same email address and operate from Loves’ residence.

John Oeleis was allegedly injured while operating a tailgate lift on a Triple L leased truck 12/7/16. He submitted a claim under Phoenix’s comp policy and filed a separate action against Triple L and Penske in Gallatin Co. State Court alleging negligence and violation of Montana’s OSHA.

State Farm insures the trucks that Triple L leases from Penske. The Employee Exclusion bars coverage of damages for injury to Triple L’s employees that arise out of that employee’s employment. The Workers’ Compensation Exclusion bars coverage of damages for injury that would otherwise be covered by a comp policy.

State Farm issued a reservation of rights letter to Triple L and filed this declaratory action. It argued in its initial summary judgment briefing that the policy excluded Oeleis’s injuries under both exclusions. Triple L argued that it covered Oeleis’s injuries because Phoenix employed Oeleis. The Court granted summary judgment for State Farm, finding that Oeleis served as a Triple L employee and that the Employee Exclusion barred coverage because he qualified as an employee under Montana’s 4-factor “control test.” The 9th Circuit reversed (2-1 memorandum). On remand, this Court ordered supplemental briefing and conducted a new hearing 10/27/22. State Farm contends in its supplemental briefing that the Comp Exclusion bars coverage.

The 9th Circuit determined that the Court erred in applying Montana’s “control test” rather than analyzing the Employee Exclusion according to its “usual, common sense meaning.” It looked to the Montana Supreme Court’s interpretation of the “usual and common sense meaning” of “employee” in the context of insurance exclusions that seek to bar coverage for injuries to an insured’s employees. Horton (Mont. 2003) determined that “employee” in this context instead “refers to all those engaged in services for wages and salary by another.” The 9th Circuit concluded that Oeleis was not Triple L’s employee because Phoenix — not Triple L — paid his wages.

This Court’s initial summary judgment declined to address State Farm’s argument that the Comp Exclusion also applies and the 9th Circuit did not consider the Comp Exclusion.

The Comp Exclusion states: “There is no coverage for an insured or for that insured’s insurer for any obligation under any type of workers’ compensation, disability, or similar law.” State Farm asserts that the plain language bars coverage because Triple L was obligated under the Montana WCA to provide comp. Triple L responds that the Comp Exclusion does not apply or that its language is ambiguous requiring construction in favor of extending coverage to Triple L.

“The party seeking the benefit of a particular policy provision bears the burden of proving its application.” Ribi (Mont. 2005). State Farm argues that the WCA supplies the standard for analyzing the Comp Exclusion. Triple L urges the Court to avoid looking to the WCA to understand the exclusion’s meaning and scope and instead import the 9th Circuit’s Employee Exclusion analysis into its evaluation of the Comp Exclusion. The Court declines the invitation. The plain text of the Comp Exclusion indicates clearly that comp law supplies the legal standard. The Comp Exclusion specifies that the policy bars coverage “for any obligation under” comp law.

The 9th Circuit opinion additionally draws an explicit distinction between the scope of insurance law and comp law. Exclusions to insurance coverage generally must be “narrowly and strictly construed because they run contrary to the fundamental protective purpose of an insurance policy.” Triple L (quoting ALPS (Mont. 2021)). Comp law sweeps more broadly due to its “distinct protective purpose of providing benefits to a broader category of workers.” Triple L (citing MCA 39-71-105(1); Carlson (Mont. 1983).

Courts in this District have applied Montana’s comp law when interpreting similar comp exclusions. Colmore (D.Mont. 2007) concerned insurance liability for the death of a ranch employee. Tutvedt (D.Mont. 2012) involved insurance liability for a farm employee’s injuries. They analyzed the comp exclusions under the WCA and concluded that they barred coverage.

Triple L relies on Animals of Montana (D.Mont. 2015) to argue that the definition of “employee” in the State Farm policy should dictate the Court’s analysis. It addressed potential insurance coverage under the employer’s liability policy for injuries suffered by a short-term employee who had been fatally mauled by a grizzly. The comp exclusion barred coverage “for any injury to any employee(s) &/or independent contractor(s) &/or volunteer(s).” The insurer admitted that potential application of the exclusion “ultimately depends” on the policy’s definition of “employee” and Judge Lynch concluded that it controlled. The definition excluded temporary workers. The policy failed to define “temporary worker.” The insurer urged the Court to look to the WCA for guidance as to who constitutes a “temporary worker.” Lynch rejected this invitation when the policy failed to define “temporary worker” in any manner, let alone in a manner that had been “crafted in consideration of workers’ compensation law.” He concluded that a material fact question remained as to whether the worker qualified as a “temporary employee” and denied summary judgment on the basis that the insurer had failed to prove his employment status.

Animals is distinguishable because its exclusion differs significantly from the State Farm Comp Exclusion and because State Farm has made no claim that the definition of “employee” should be used in determining coverage, but argues instead that the WCA’s statutory scheme controls the definition of “obligation” under comp law.

State Farm argues that Triple L owed Oeleis an obligation under the WCA to obtain comp. Triple L counters that it owed no obligation because Phoenix employed him, and additionally claims that the Comp Exclusion applies only where an insured seeks coverage for obligations arising directly from a comp claim, and no obligation arose because it never obtained comp for Oeleis. Both of Triple L’s arguments falter.

First, Triple L cannot rebut the presumption that it employed Oeleis for purposes of comp law. MCA 39-71-118(6) (employees who are leased to another company are “presumed to be under the control and employment” of the company to which they are leased). The 9th Circuit left undisturbed this Court’s findings that “Triple L maintained the right to exercise significant control over the detail of Oeleis’ work” and that it “retained exclusive supervisory control over all aspects of the bulk mail delivery operations and equipment, particularly including safety.” Triple L — not Phoenix — retained control over “all aspects” of Oeleis’s work. MCA 39-71-117(3). Oeleis qualifies as a Triple L employee for purposes of the WCA.

Second, Triple L misconstrues the nature of obligations under comp laws. Comp exclusions typically preclude coverage for injuries where an employer has an obligation under comp law that could have been handled through a comp claim. Producers Dairy (Haw. 1987). Whether an employer obtained comp is immaterial. To reward an employer for failing to abide by its statutory obligations would undermine public policy and create perverse incentives for employers. MCA 39-71-105. “Where an employer has failed to comply with the workers’ compensation statute, liability in actions for damages expressly permitted by the workers’ compensation statute in that situation” constitutes an obligation under workers’ compensation law. Tri-State (Wash. 1984). The insured in Evanston (C.D.Cal. 2010) had chosen not to obtain comp. The Court determined nevertheless that the policy barred coverage for the worker’s injuries “because the Policy at issue explicitly excludes [the insured’s] obligations under workers’ compensation law.”

Oeleis qualifies as Triple L’s employee under the WCA. MCA 39-71-118(1)(a). It owed him an obligation under the WCA to obtain comp. §401(1). It organized Phoenix in part to avoid higher comp rates after Jeffrey Love was injured while working for Triple L. Triple L now provides comp for its drivers and has admitted that not obtaining comp for Oeleis was a mistake. That it failed to obtain comp for him does not alter its obligations under the WCA. The Comp Exclusion in the State Farm policy bars Triple L’s coverage.

Triple L’s efforts to identify ambiguity in the policy are unavailing. It argues that “Insured” could mean either Triple L or Oeleis and that “Insurer” could mean either State Farm or some other insurer. An “obligation,” according to Triple L, means an obligation imposed on an insured “pursuant to a workers’ compensation or disability claim.” These purported inconsistencies differ markedly from the conflicting provisions in Holeman (Mont. 1998) and Mitchell (Mont. 2003). The policy in Holeman imposed contradictory requirements on claimants that made compliance with both provisions impossible. The policy in Mitchell contained limitations that contravened a consumer’s reasonable expectation of coverage and rose to the level of public policy violations. No such ambiguity exists here. A reasonable consumer would interpret “Insured” as Triple L, the listed insured in the State Farm policy. Triple L’s suggested interpretation of “obligation” mirrors its unsuccessful arguments as to applicability of the Comp Exclusion.

Summary judgment is granted for State Farm.

State Farm Mutual Auto Ins. v. Triple L, Penske Truck Leasing, and Oeleis, 44 MFR 287, 12/2/22.

Bradley Luck & Leah Handelman (Garlington, Lohn & Robinson), Missoula, for State Farm; Matthew Haus (Tarlow, Stonecipher, Weamer & Kelly), Bozeman, for Triple L; Mark Kovacich & Ben Snipes (Kovacich Snipes Johnson), Great Falls, for Oeleis.

SSD: Insufficient findings as to extent of migraines and wrist impairment, remanded for further findings… Kelley reversed… Johnston.

Ronald Trimp, 57, has 2 years of college and experience as a claims assistant and service rep for the VA, avionics manager for the Air Force, and cashier at Home Depot. He applied for SSD and disability insurance benefits 5/4/20 alleging that he became disabled 2/25/20 due to depression, glaucoma, RAD, PTSD, low back pain, left leg sciatica, headaches, confusion, COPD, right shoulder pain, limited motion in his right shoulder, left shoulder pain, weakness in his right wrist, numbness in both hands, and hypoxia. ALJ Michelle Kelley conducted a hearing and found that he had the severe impairments of COPD, lumbar DDD, left hip degenerative joint disease, wrists degenerative joint disease, migraines, mild neurocognitive disorder, PTSD, depression, and anxiety, but that he was not disabled because he had the RFC to perform jobs such as laundry worker, meat clerk, and store laborer. The Appeals Council denied his request for review. He appeals.

Trimp argues that Kelley erred at step 3 when she determined that his headache disorder did not medically equal Listing 11.02. A headache disorder meets 11.02 if the headaches occur at least once a week for 3 consecutive months despite adherence to prescribed treatment, their pain and symptoms are documented, and they significantly alter the claimant’s awareness or daily activity. Amanda G. (D.Mont. 2022); Radar (D.Idaho 2018). To determine whether a headache disorder is equal in severity & duration to the criteria in 11.02 an ALJ is to consider 1) the accepted medical source’s description of a typical headache event, 2) frequency of the headache events, 3) adherence to prescribed treatment; 4) side effects of the prescribed treatment, and 5) the limitations in functioning associated with the headache disorder. SSR 19-4p. If the ALJ concludes at step 3 that an impairment does not meet 11.02 she must discuss and evaluate the evidence that supported her decision. Lewis (9th Cir. 2001).

Kelley’s analysis under step 3 is flawed for 2 reasons. First, she failed to discuss and evaluate the medical evidence that supported her decision. She made no findings as to the nature & duration of Trimp’s migraines. She made no findings as to frequency of his migraines. She made no findings as to the treatment prescribed for the migraines. And she made to findings as to whether his migraines affected his awareness or daily activities.

Second, Kelley’s explanation for her decision reflects a misunderstanding of the medical equivalency evaluation that must be performed under Listing 11.02. She stated that Trimp’s headache disorder did not satisfy the criteria under 11.02 because she found no medical evidence of seizures or marked functional limitations. When applied to a headache disorder, 11.02 does not require medical evidence of a seizure. SSR 19-4p: Evaluating Cases Involving Primary Headache Disorders (2019 WL 4169635). The claimant need only show that the frequency, duration, and severity of headaches are medically equal to the criteria under Listing 11.02 for seizures.

On remand, Kelley should re-evaluate whether Trimp’s history of headaches satisfies Listing 11.02.

Kelley provides no indication whether she even considered the effect of Trimp’s wrist impairment when she made her RFC determination. She does not discuss the effect of the wrist impairment at all. The Court therefore cannot determine if her RFC assessment was based on a consideration of all of Trimp’s impairments.

Kelley’s error was not harmless. If she were to find that Trimp’s wrist impairment causes significant manipulative limitations she may conclude that he is unable to perform the jobs described at step 5. On remand, she should explain why his wrist impairment does not result in any work-related limitations.

Trimp v. SSA, 44 MFR 285, 11/14/22.

Eric Rasmusson (Rasmusson Law Offices), Missoula, of Counsel for Olinsky Law Group, for Trimp; Special AUSAs Erin Highland & Mark Smith.

SSD: ALJ Kelley failed to properly credit medical opinions, VE, Claimant’s testimony in denying benefits… remanded for immediate award… Morris.

Thomas Lehotsky received a 100% service-connected disability determination from VA. He applied for a period of disability and disability insurance benefits alleging disability beginning 6/1/18. ALJ Michele Kelley issued an unfavorable decision 5/26/21 and the Appeals Council denied his request for review. He seeks judicial review.

Kelley identified that Lehotsky had severe impairments of DDD, trochanteric bursitis, bilateral epicondylitis and degenerative joint disease bilateral elbows with mild ulnar neuropathy, right knee chondromalacia and medial meniscus tear, shoulder osteoarthritis, loose body, labral cyst, acromial impingement, tendinosis supraspinatus and bicipital tendons, and obesity, none of which met or medically equaled severity of a listed impairment. She found that he maintained the RFC to perform light work with some limitations and concluded that he was not disabled.

Lehotsky argues that Kelley erred starting at step 3 in the evaluation process because she improperly relied on his daily living activities in determining his RFC, resulting in an incomplete hypothetical posed to VE Ashley Bryars, and she failed to provide sufficient reasons for assigning little weight to his 100% VA rating. The Commissioner asserts that Kelley properly concluded that he was not disabled from 6/1/18 and that substantial evidence supported her assessment of his symptom allegations and she properly considered the VA medical evidence under the new regulations.

Evaluation of the medical opinion evidence remains subject to the amended regulations pertaining to claims filed after 3/27/17. Under the new regulations the ALJ “will no longer give any specific evidentiary weight to medical opinions; this includes giving controlling weight to any medical opinion.” These regulations do away with the traditional hierarchy between treating, examining, and non-examining physicians, and instead direct the ALJ to consider all medical opinions and prior administrative medical findings and evaluate their persuasiveness using listed factors including supportability, consistency, relationship with the claimant, specialization, and “other factors that tend to support or contradict a medical opinion or prior administrative medical finding.” Supportability and consistency represent the most important factors.

The regulations require the ALJ to articulate how persuasive they find all of the medical opinions and prior administrative medical findings and set forth “articulation requirements” for the evaluation. The ALJ must explain how they considered the supportability and consistency factors. The ALJ is generally not required to explain how they considered the remaining factors, but when the ALJ finds that 2 or more medical opinions are equally well-supported and consistent with the record but are not exactly the same, the ALJ must articulate how they “considered the other most persuasive factors.” The new regulations still require the ALJ to provide legally sufficient reasons supported by substantial evidence for finding a medical opinion unpersuasive. Sollars (D.Mont. 2021); Beason (C.D.Cal 2020).

Lehotsky claims disability based on DDD, left hip joint deterioration, neuromas in both feet, missing nerves in his left foot, bilateral shoulder dysfunction and pain, high blood pressure, high cholesterol, gastrointestinal reflux disease, and hyperthyroidism. Kelley found that these “impairments could reasonably be expected to cause Lehotsky’s symptoms” but that his statements as to their intensity, persistence, and limiting effects were “not entirely consistent with the medical evidence and other evidence in the record.” She concluded that the medical evidence did not support his claimed functional compromise. She considered his treatment records, the state agency medical consultants preparing his Disability Determination Services opinion, a VE, and testimony from Lehotsky.

Lehotsky argues that Kelley failed to properly consider the evidence underlying his 100% VA disability. Prior administrative findings and decisions do not bind an ALJ. §404.1504. The new regulations require that an ALJ consider only “the supporting evidence underlying the other government agency or nongovernmental entity’s decision.” The record does not include any of the supporting evidence underlying the VA rating. The Court will not review Kelley’s consideration of Lehotsky’s disability rating for this reason.

Medical records document Lehotsky’s chronic musculoskeletal pain, lumbar and cervical DDD, hip joint deterioration, shoulder deterioration, surgeries, and numerous injections and ablations. They show that these complaints predate and have continued past his alleged onset date. He underwent 2 diskectomies in 2003 & 2007 that failed to control his pain. Imaging from 6/17 showed moderate multi-level degenerative changes.

Lehotsky began regular treatments with Benefis Hospital pain management provider Dr. Spanbauer who recommended RF ablations. He has continued to receive RF ablations including in 5/19 and 10/20 that his provider noted failed to fully resolve his back pain.

Lehotsky’s records from June and August 2018 and 3/19 reveal that hip joint injections failed to control pain from his hip joint deterioration but provide only temporary, partial relief and that PT and medications do not relieve the pain at all. The 8/18 records also confirm that his chronic musculoskeletal, back, and hip pain continued, and Spanbauer ordered additional steroid and anesthetic injections.

Records from 2020 reveal Spanbauer’s assessment of Lehotsky’s back pain as lasting at least “three months of moderate to severe pain with functional impairment.” This assessment came after several years of Benefis treating his recurring pain. In sum, the treatment records and treating providers document his “chronic” pain including refractory hip joint pain that continues to return even after surgery, medications, chiropractic or PT, TENS units, psychological therapy, and bracing.

Kelley improperly discounted the opinions of Lehotsky’s treating physicians. She failed to address in any fashion how persuasive she found the opinions. She made no reference to the supportability and consistency factors in reviewing their notes. This failure runs afoul of §§ 404.1520(b)-(c) which sets forth the “articulation requirements” for evaluation of medical opinions. Her findings are thus not legally sufficient.

Kelley afforded disproportionate weight to non-treatment considerations such as Lehotsky’s purported ability to perform daily activities. She concluded that he is not disabled because he exercises, walks his dog, prepares & cooks meals, dresses & bathes without problems, completes household and yard work, shops several times a week, and participates in outdoor activities including watching high school sports and wildlife viewing near a river. She found his daily activities to be “inconsistent” with his claimed “functional compromise.” She failed to note that the record shows that he requires his wife’s assistance to cook meals that require standing in the kitchen. He does not attend outdoor sports often. His participation in outdoor activities results in significant pain that can persist for days after the event. He cannot stand more than 15 minutes. He cannot sit more than 30 minutes on a cushioned chair or 2-3 minutes on a firm surface. He spends 60% of his normal days in a recliner with his feet elevated to rest his back and feet. His exercise or “working out” consists of a PT program. These exercises consist of slowly walking on a treadmill with hand supports and stretching. He limits his weight to 2-1/2 pounds for his arms and 10 pounds for his legs. While he remains able to drive, his spouse transports him for some activities including to exercise.

“The fact that a Plaintiff regularly engages in some activity does not disprove a disability.” Contreras (S.D.Cal. 2020). The Court will not penalize disability claimants such as Lehotsky for attempting to live normal lives. Id. His daily activities ultimately support — rather than undermine — the contention that he is disabled. Garrison (9th Cir. 2014).

Kelley disregarded testimony from the VE that captured Lehotsky’s combination of impairments. Her first 2 hypotheticals involved a person with an ability to lift 10 pounds frequently, occasionally reach overhead, and walk, stand, and sit for 6 hours in an 8-hour day. The VE identified that such a person could work as a corrections officer, security guard, and switchboard operator and would lack transferrable skills for other jobs. Kelley’s 3rd hypothetical involved an ability to walk and stand 4 hours in an 8-hour work day. The VE identified switchboard operator as the only available position. Kelley’s final hypothetical concerned a requirement of “off-task” time for at least 20% of an 8-hour work day and 40-hour work week. The VE testified that these requirements would mean “there would be no work, past work or otherwise, for this individual.”

Kelley’s determination that Lehotsky could perform his past jobs as a correction officer, security guard, or switchboard operator inaccurately reflects his RFC. He requires frequent breaks from sitting & standing including the need to recline 60% of the day. The VE’s testimony establishes that these requirements render him unable to work. She committed legal error in failing to account for the VE’s testimony as to limitations & requirements that match Lehotsky’s circumstances.

Kelley thus committed the following independent errors, each constituting reversible error: failing to consider all evidence underlying the VA’s prior medical findings, misinterpreting non-treatment considerations to discount Lehotsky’s testimony, and failing to account for VE testimony demonstrating that Lehotsky’s combination of impairments ruled out work.

Remand for an immediate award of benefits is appropriate. The record has been fully developed. Further proceedings would serve no useful purpose. The record demonstrates that Kelley would have been required to find Lehotsky disabled from 6/1/18 had she properly credited the medical opinions sources, the VE, and Lehotsky’s testimony.

Lehotsky v. SSA, 44 MFR 286, 11/30/22.

Eric Rasmusson (Rasmusson Law Offices), Missoula, of Counsel for Olinsky Law Group, for Lehotsky; Special AUSAs Kelly Arefi & Mark Smith.