Brian Glanden v. Kilolo Kijakazi

                 FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT

BRIAN GLANDEN,                            No. 22-35632

              Plaintiff-Appellant,      D.C. No. 2:21-cv-
                                          00292-TOR
 v.

KILOLO KIJAKAZI, Acting                     OPINION
Commissioner of Social Security,

              Defendant-Appellee.

       Appeal from the United States District Court
         for the Eastern District of Washington
        Thomas O. Rice, District Judge, Presiding

          Argued and Submitted July 14, 2023
                 Seattle, Washington

                Filed November 16, 2023

 Before: Susan P. Graber, Ronald M. Gould, and Richard
                A. Paez, Circuit Judges.

                Opinion by Judge Paez;
                Dissent by Judge Graber
2                      GLANDEN V. KIJAKAZI


                          SUMMARY *


                         Social Security

    The panel reversed the district court’s judgment
affirming an administrative law judge’s denial of plaintiff’s
application for social security disability insurance benefits at
step two of the sequential analysis.
    The panel explained that at step two of the sequential
analysis, claimants need only make a de minimis showing
for the ALJ’s analysis to proceed past this step and that
properly denying a claim at step two requires an
unambiguous record showing only minimal limitations. The
seven-month period for which plaintiff seeks disability
benefits falls within a two-and-a-half-year gap in his medical
treatment records.
    The panel held that plaintiff made the requisite showing
to meet step two’s low bar where he submitted evidence that
he suffered from multiple chronic medical conditions that
both preceded and succeeded the gap in his
treatment. Plaintiff explained the gap in treatment was due
to his inability to pay. In addition, an agency medical expert
testified that he would expect that plaintiff experienced
symptoms serious enough to require treatment during the
relevant period. The panel concluded that this cumulative
evidence was enough to establish that plaintiff’s claim was
nonfrivolous and to require the ALJ to proceed to step



*
 This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    GLANDEN V. KIJAKAZI                   3


three. Therefore, the ALJ’s denial of plaintiff’s claim at
step two was premature.
    The panel also held that the ALJ did not provide clear
and convincing reasons for rejecting plaintiff’s symptom
testimony.
    The panel reversed the district court’s judgment with
instructions to remand the case to the agency for further
proceedings.
    Dissenting, Judge Graber would hold that substantial
evidence supported the ALJ’s conclusion that the plaintiff
failed to meet his burden at step two of showing that he had
a “severe” impairment during the seven-month period when
he presented no medical evidence.



                       COUNSEL

Chad Hatfield, Hatfield Law PLLC,              Kennewick,
Washington, for Plaintiff-Appellant.
Shata L. Stucky, Attorney, Office of the General Counsel;
Mathew W. Pile, Associate General Counsel; Office of
Program Litigation, Social Security Administration,
Baltimore, Maryland; Timothy M. Durkin, Assistant United
States Attorney; Vanessa R. Waldref, United States
Attorney; United States Attorney’s Office, Seattle,
Washington; Brian M. Donovan, Assistant United States
Attorney, United States Attorney’s Office, Spokane,
Washington; for Defendant-Appellee.
4                   GLANDEN V. KIJAKAZI


                        OPINION

PAEZ, Circuit Judge:

    Brian Glanden (“Glanden”) appeals the district court’s
judgment affirming an administrative law judge’s (“ALJ’s”)
denial of his application for social security disability
insurance benefits at step two of the sequential analysis. We
reverse and remand for further proceedings.
                             I.
    Brian Glanden has lived with a combination of chronic
medical conditions for more than a decade. He first had
spine surgery in 2010 to address herniated lumbar discs. At
examinations in 2011, he continued to exhibit abnormal
reflexes, musculature, flexion, and tenderness of his back.
Physicians diagnosed him with lumbar degenerative disc
disease and lumbar radiculopathy.
     Glanden worked as a framer and laborer in 2012. In
spring 2013, he again sought treatment for spinal issues, and
new imaging of his spine confirmed ongoing problems.
Around the same time, he sought treatment for pain in his
right wrist, lower back, and leg. Imaging showed that his
wrist problems stemmed from necrosis of the bone tissue and
a cyst in his scaphoid bone, a small bone in the wrist joint.
In April 2013, because of this condition, Glanden’s
physician restricted him to light work that did not require
lifting with his right hand and recommended that he receive
assistance with writing. Glanden underwent wrist surgery
that same month for a bone graft and screw fixation.
                      GLANDEN V. KIJAKAZI                        5


   Glanden was incarcerated for part of March 2013, from
approximately June 2013 to August 2013, and from
approximately August 2014 until the end of 2017. 1
    In August 2013, while out of prison, Glanden went to an
emergency room seeking medication for wrist pain. The
provider described Glanden’s behavior as aggressive and
drug-seeking. Glanden again sought treatment for wrist pain
at the emergency room in February 2014. The doctor noted
Glanden’s chronic wrist pain and again suspected drug-
seeking behavior.
    Glanden continued to report wrist pain while
incarcerated, as reflected in records from January 2015. In
December 2015, he was hospitalized with a severe head
injury. He testified that after that incident, he began
experiencing chronic headaches. In July 2016, prison
medical providers noted that although Glanden needed a
second wrist surgery to repair a fracture with a bone graft,
they were unable to schedule the procedure because he was
a cigarette smoker.
    Glanden was released from prison in 2017. His attempt
to work in January 2018 was unsuccessful because his back
pain and headaches prevented him from walking, standing,
or sitting for long periods. Glanden’s employer initially tried
to accommodate these restrictions. He allowed Glanden to
take extended lunch breaks, lie down in the afternoons, and
occasionally leave work early. These changes did not relieve
Glanden’s issues, however, and the employer terminated
him due to the lengthy breaks that he required.



1
  The precise dates of Glanden’s incarceration are unclear from the
record.
6                       GLANDEN V. KIJAKAZI


    Because Glanden had no income during his years in
prison and was unable to sustain work after his release, he
lacked health insurance and could not afford medical
treatment. A two-and-a-half-year gap in his medical records
corresponds with the period when he was uninsured. The
seven-month period for which he seeks disability benefits,
December 2017 to June 2018, falls in the middle of that
period.
    Glanden testified that during this time, he experienced
daily headaches and back pain along with other persistent
symptoms such as balance issues. On some days, he could
perform activities such as yard work, but on other days when
his symptoms were more severe, he avoided all activity and
social interaction. His headaches and back pain required him
to isolate himself and lie down for one to three hours at
unpredictable times. He sometimes needed to lie down all
day. His back pain also caused him to have difficulty
bending over and moving objects. He further testified that
his range of motion and flexion in his wrist remained limited
throughout that period, preventing him from driving a
hammer or writing notes.
    Glanden obtained health insurance in early 2019. He
resumed treatment for his chronic back condition and
migraine headaches about five months later. 2 At his June
2019 appointment and two follow-up appointments, he
described how, while he was attempting yardwork in late
May 2019, a “pop” in his back had caused an acute flare-up
in pain which previously had been at a stable level. A car
accident in July 2019 further exacerbated his pain. In

2
 Glanden testified that after he received approval for Washington state
medical insurance, it took him several months to obtain an appointment
with a covered physician.
                         GLANDEN V. KIJAKAZI                             7


September 2019, he had a second spinal surgery to address a
protruded disc.      Providers suspected that he was
noncompliant with post-operative orders, possibly causing
further herniation, and noted that he missed follow-up
appointments.
    Glanden first applied for disability insurance benefits on
September 3, 2019, alleging a disability onset date of
December 1, 2017. His date last insured for the purpose of
benefits eligibility was June 30, 2018. The Social Security
Administration (“SSA”) denied his application initially and
on reconsideration, and he requested an administrative
hearing. After the December 14, 2020 hearing, the ALJ
determined that Glanden was not disabled.
    The ALJ followed the five-step evaluation process to
assess Glanden’s disability claim.          See 

. At step one, he found that Glanden had not
engaged in substantial gainful activity since his application
date. At step two, he found that Glanden had five medically
determinable impairments: lumbar degenerative disc disease
status post-surgery, a right wrist injury, headaches,
hypertension, and mild depression. After considering
Glanden’s symptom testimony; the medical evidence, which
included testimony from a consulting agency physician; and
lay witness statements, 3 the ALJ found that the evidence
established that Glanden had did not have a severe
impairment or combination of impairments during the
relevant period. As a result, the ALJ determined that
Glanden was not disabled during the relevant period and

3
  Glanden has waived on appeal the issue of whether the ALJ erred in
rejecting lay witness testimony because he did not raise it at the district
court. See, e.g., Ghanim v. Colvin, 

 (9th Cir. 2014);
Greger v. Barnhart, 

 (9th Cir. 2006).
8                   GLANDEN V. KIJAKAZI


denied his claim without considering the remaining steps.
See 

(a)(4).
    The Social Security Appeals Council denied Glanden’s
request for review. Glanden then sought review in the
district court, and the district court granted the
Commissioner’s motion for summary judgment. This
appeal followed.
                             II.
    We have jurisdiction under 

. We
review de novo the district court’s order affirming the ALJ’s
denial of social security benefits and reverse only if the
decision was not supported by substantial evidence or is
based on legal error. Ford v. Saul, 

, 1153–54
(9th Cir. 2020) (citations omitted). “Substantial evidence
means more than a mere scintilla, but less than a
preponderance; it is such relevant evidence as a reasonable
person might accept as adequate to support a conclusion.”
Lingenfelter v. Astrue, 

 (9th Cir. 2007)
(internal quotation marks omitted). A reviewing court “must
consider the entire record as a whole and may not affirm
simply by isolating a specific quantum of supporting
evidence.” Ghanim, 

 (internal quotation
marks and citations omitted).
                            III.
    The ALJ denied Glanden’s claim at step two of the five-
step sequential analysis. Step two inquires whether the
claimant had severe impairments during the period for which
he seeks disability benefits. 

(a)(4)(ii).
An impairment is severe if it “significantly limits” an
individual’s “ability to do basic work activities.” 

(c).
                         GLANDEN V. KIJAKAZI                            9


    The Supreme Court considered the validity of step two
in Bowen v. Yuckert, 

 (1987), and concluded
that the regulation is facially consistent with the Social
Security Act. The Court described the step-two severity
analysis as a “threshold showing,” Bowen, 

,
that serves to “identify[] at an early stage those claimants
whose medical impairments are so slight that it is unlikely
they would be found to be disabled even if their age,
education, and experience were taken into account,” 

.
    Writing separately, Justice O’Connor agreed that the
step-two regulation could be applied consistently with the
Act but expressed concern about its frequent misuse to deny
claims prematurely. Bowen, 482 U.S. at 156–57. She
endorsed the agency’s narrow interpretation of the
regulation in its Social Security Ruling (SSR) 85-28, 4 which
construes step two as a de minimis requirement that screens
out only frivolous claims.
    On remand from the Supreme Court’s decision in
Yuckert, we adopted the interpretation in SSR 85-28.
Yuckert v. Bowen, 

 (9th Cir. 1988). Our
narrow application of the rule places us in good company:
nine other circuits have also announced that they view step
two as requiring no more than a de minimis showing. See
McDonald v. Sec’y of Health & Hum. Servs., 

,
1476–77 (1st Cir. 1989); Dixon v. Shalala, 

,
1030–31 (2d Cir. 1995); Bailey v. Sullivan, 

, 56–

4
  SSRs “do not carry the force of law, but they are binding on ALJs
nonetheless.” Diedrich v. Berryhill, 

 (9th Cir. 2017).
“They reflect the official interpretation of [the SSA] and are entitled to
some deference as long as they are consistent with the Social Security
Act and regulations.” 

10                    GLANDEN V. KIJAKAZI


57 (3d Cir. 1989); Anthony v. Sullivan, 

, 294–
95 (5th Cir. 1992); Higgs v. Bowen, 

, 862–63
(6th Cir. 1988); Johnson v. Sullivan, 

 (7th
Cir. 1990) (en banc); Hudson v. Bowen, 

,
1395–96 (8th Cir. 1989); Williams v. Bowen, 

 (10th Cir. 1988); Stratton v. Bowen, 

 (11th Cir. 1987).
    Each time we have reviewed an ALJ’s step-two analysis,
we have reiterated the corollary principles that claimants
need only make a de minimis showing for the analysis to
proceed past this step and that properly denying a claim at
step two requires an unambiguous record showing only
minimal limitations. Because it is relatively rare for an ALJ
to deny a claim at step two, 5 our caselaw contains few
examples of cases where the analysis ended at this step. We
have published only three such opinions: two remanding the
case to the agency, see Edlund v. Massanari, 

(9th Cir. 2001); Webb v. Barnhart, 

 (9th Cir.
2005), and one affirming the ALJ’s denial of benefits, see
Ukolov v. Barnhart, 

 (9th Cir. 2005).
    Other cases have presented step-two questions although
the ALJ denied the claim at another point in the sequential
analysis. See, e.g., Smolen v. Chater, 

, 1289–
90 (9th Cir. 1996) (discussing errors in the ALJ’s step-two
analysis although the ALJ proceeded to deny the claim at
step five); Corrao v. Shalala, 

, 949–50 (9th Cir.
1994), as modified on reh’g (Apr. 7, 1994) (reversing and


5
 See Bernard Wixon & Alexander Strand, Identifying SSA’s Sequential
Disability Determination Steps Using Administrative Data, Soc. Sec.
Admin. (June 2013), http://www.ssa.gov/policy/docs/rsnotes/rsn2013-
01.html [https://perma.cc/G2G9-F3B4].
                     GLANDEN V. KIJAKAZI                   11


remanding a step-one denial of benefits where the ALJ had
analyzed step two in the alternative).
     Our approach to reviewing an ALJ’s denial of a claim at
this preliminary stage remains constant and firmly in step
with our sister circuits: once a claimant presents evidence of
a severe impairment, an ALJ may find an impairment or
combination of impairments “not severe” at step two “only
if the evidence establishes a slight abnormality that has no
more than a minimal effect on an individual’s ability to
work.” Webb, 

 (quoting Smolen, 

); accord SSR 85-28 (explaining that ALJs must apply
step two using “great care” by proceeding to step three if a
clear determination cannot be made).
                             IV.
                             A.
    If a claimant has submitted evidence of a severe
impairment, we analyze an ALJ’s step-two denial by asking
“whether the ALJ had substantial evidence to find that the
medical evidence clearly established that [the claimant] did
not have a medically severe impairment or combination of
impairments.” Webb, 

. An inconclusive
medical record precludes denial at this step. If an ALJ “is
unable to determine clearly the effect of an
impairment . . . on the individual’s ability to do basic work
activities, the sequential evaluation should not end with the
not severe evaluation step. Rather, it should be continued.”
SSR 85-28.
    The seven-month period for which Glanden seeks
disability benefits falls within a two-and-a-half-year gap in
his medical treatment records. If “the medical record paints
an incomplete picture of [the claimant’s] overall health
12                   GLANDEN V. KIJAKAZI


during the relevant period,” there can nonetheless be
“evidence of problems sufficient to pass the de minimis
threshold of step two.” Webb, 

.
    Glanden made the requisite showing to meet step two’s
low bar. He submitted evidence that he suffers from
multiple chronic medical conditions that both preceded and
succeeded the gap in his treatment. He explained that the
gap in treatment was due to his inability to pay. In addition,
an agency medical expert testified that based on Glanden’s
records, he would expect that Glanden experienced
symptoms serious enough to require treatment during the
relevant period. This cumulative evidence is enough to
establish that Glanden’s claim is nonfrivolous and to require
the ALJ to proceed to step three.
    Our relevant caselaw, though limited, supports our
conclusion that Glanden has met his step-two burden.
Although Glanden’s treatment gap is longer, his situation
resembles that of the claimant in Webb, and our decision in
that case is instructive here. We held that Webb’s other
evidence overcame gaps in treatment that the ALJ had found
to undermine his reported symptoms. Webb, 

. Glanden’s inability to afford treatment is as reasonable
an explanation as the “vicissitudes” in Webb’s condition. 

    The ALJ’s erroneous step-two denial stemmed from his
rejection of Glanden’s explanation for his treatment gap
based on a misreading of the record.
    The ALJ rejected Glanden’s explanation because he
found that Glanden had access to free clinics but chose not
to use them, undermining his allegations of severe
symptoms. Substantial evidence does not support this
finding. Glanden testified that the free clinics offered only
acute care such as flu shots and would not treat his
                    GLANDEN V. KIJAKAZI                   13


conditions. The ALJ’s characterization of Glanden as overly
selective about his preferred form of care is contrary to the
record, which shows that Glanden described a lack of access
to appropriate care.
    This misinterpretation pervaded the rest of the ALJ’s
analysis. He reasoned that “if [Glanden’s] symptoms were
not significant enough for him to seek treatment to which he
had free access, they likely were not disabling.” In addition
to testifying that no free treatment was available, however,
Glanden explained that to manage his pain in the absence of
treatment, he extensively modified his activities of daily
living to cope with his symptoms. He described laying down
for hours at a time every day, avoiding people, and staying
home and doing very little, with some days involving more
restrictions than others. The ALJ ignored these coping
mechanisms in his finding that a lack of treatment was
inconsistent with the symptoms that Glanden alleged. Cf.
SSR 16-3p (requiring consideration of symptom
management methods other than professional care). These
measures explain Glanden’s ability to manage his daily
living without medical care that he could not afford while
avoiding visits to the emergency room.
    The court in Webb remanded for further analysis because
substantial evidence did not support the ALJ’s finding that
Webb’s “claim was ‘groundless.’” 

 (citing
Smolen, 

); see also Edlund v. Massanari, 

 (9th Cir. 2001), as amended on reh’g (Aug.
9, 2001) (remanding case because the ALJ failed to abide by
the “‘de minimis’ standard” at step two). Because we
interpret step two as screening out only groundless claims,
the record in this case counsels the same result.
14                   GLANDEN V. KIJAKAZI


    In Ukolov, we affirmed the ALJ’s step-two denial
because “even the claimant’s doctor was hesitant to conclude
that any of the claimant’s symptoms and complaints were
medically legitimate.” Webb, 

 (citing
Ukolov, 

). Indeed, the Ukolov claimant
failed to show that he had any diagnosed impairments, and
his physicians were unable to verify his alleged symptoms
through any medical examinations or test results. 

. Step two is intended to screen for precisely this sort
of frivolous claim. Glanden’s extensive medical history and
explanation for his gap in treatment distinguish his case as
one in which substantial evidence does not support the
finding that the record clearly establishes the absence of
severe impairments.
                             B.
    Dr. Smiley, a state agency medical expert, reviewed
Glanden’s records and testified at the hearing. Without
contemporaneous medical records, Dr. Smiley could not
opine on Glanden’s specific limitations during the relevant
period. He testified, however, that based on the existing
records, he would expect Glanden to have had serious
symptoms that required treatment during the relevant period.
He repeatedly expressed disbelief that he had received the
complete record, explaining that the gap in treatment did not
correspond with the serious conditions established by the
medical records before and after the gap. There is no
indication that Dr. Smiley was aware of Glanden’s inability
to afford treatment during the period when he lacked
insurance.
    The ALJ found Dr. Smiley’s opinion to be “generally
persuasive” while noting that the doctor “was unable to give
an opinion about the claimant’s functional limitations during
                     GLANDEN V. KIJAKAZI                   15


the relevant period because of lack of evidence.” The ALJ
found that Dr. Smiley’s inability to identify limitations with
certainty was “not inconsistent” with the ALJ’s “finding that
there was no severe impairment during the relevant period.”
    The ALJ’s erroneous determination that Glanden had
access to free treatment distorted his view of Dr. Smiley’s
testimony. Because the ALJ rejected Glanden’s explanation
for his lack of treatment, he interpreted the expert testimony
as confirmation that Glanden had no symptoms during the
relevant period that could result in significant limitations.
    We consider the evidence in view of the record as a
whole. Ghanim, 

. In the context of
Glanden’s testimony explaining the treatment gap, Dr.
Smiley’s testimony does not support the ALJ’s finding that
the medical record clearly establishes that Glanden had no
severe impairments. The doctor’s opinion that, based on
Glanden’s medical history, one would expect him to have
required treatment during the relevant period undermines the
conclusion that the record unambiguously established no
more than minimal limitations. See Webb, 

.
    The ALJ’s finding that Glanden had access to free
treatment during the relevant period skewed his view of the
record and the expert medical testimony. In the context of
Glanden’s inability to access care without insurance, the
record of Glanden’s serious chronic conditions meets the
low bar of step two, and the ALJ erred in denying his claim
without further analysis.
                             C.
    On the record that does exist, the ALJ did not provide
clear and convincing reasons for rejecting Glanden’s
symptom testimony. Cf. Smolen, 

 (stating
16                   GLANDEN V. KIJAKAZI


that rejecting or discounting a claimant’s symptom
testimony requires “specific findings stating clear and
convincing reasons”) (citation omitted)). While the ALJ
must consider the level of consistency between symptom
testimony and the medical evidence, not all inconsistencies
are “sufficient to doom [a] claim as groundless under the de
minimis standard of step two.” Webb, 

.
Indeed, “[t]he clear and convincing standard is the most
demanding required in Social Security cases.” Garrison v.
Colvin, 

 (9th Cir. 2014) (quoting Moore
v. Comm’r of Soc. Sec. Admin., 

 (9th Cir.
2002)).
    The ALJ first interpreted the lack of medical treatment
as undermining Glanden’s symptom allegations based on his
finding that Glanden had access to free treatment that he did
not utilize. As discussed above, the record evidence shows
that the free clinics that Glanden referenced in his testimony
were not equipped to treat his conditions, and substantial
evidence therefore does not support this finding. “Where a
claimant provides evidence of a good reason for not taking
medication for her symptoms,” such as inability to afford
treatment, “her symptom testimony cannot be rejected for
not doing so.” Smolen, 

.
    In addition to the gap in medical treatment, the ALJ
determined that aspects of the existing record evidence
conflicted with Glanden’s alleged symptoms. None of these
potential inconsistencies rises to the level of clear and
convincing reasons to reject his testimony.
    The ALJ interpreted various notes in Glanden’s medical
records from before and after the relevant period as
undermining his testimony. First, the ALJ pointed to
medical providers’ notes that Glanden described an acute
                     GLANDEN V. KIJAKAZI                   17


flare-up of his back pain at the end of May 2019 while
attempting yard work. Glanden’s increased pain after
exerting himself during yardwork, however, does not
conflict with his reports of pain symptoms over a year earlier
during the relevant period.         The ALJ perceived an
inconsistency where none exists.
    In addition, the ALJ discussed instances where results of
exams or imaging did not fully substantiate Glanden’s pain
reports. But, as we have recognized, subjective pain is not
always verifiable through a physical examination. See, e.g.,
Coleman v. Saul, 

 (9th Cir. 2020) (“An
ALJ, however, may not discredit the claimant’s subjective
complaints solely because the objective evidence fails to
fully corroborate the degree of pain alleged.” (citing Reddick
v. Chater, 

 (9th Cir. 1998))); SSR 16-3p
(“[W]e will not disregard” symptom reports “solely because
the objective medical evidence does not substantiate the
degree of impairment-related symptoms alleged by the
individual.”). Subsequent examinations confirmed deeper
issues than the initial inconsistent results had revealed. The
longitudinal record tends to vindicate Glanden’s pain
allegations.
    The ALJ next focused on emergency room providers’
notations that Glanden displayed drug-seeking behavior
during two visits in 2013 and 2014. We considered evidence
of drug-seeking behavior to be a clear and convincing reason
to discount symptom testimony in Coleman, 

.
That case, however, was a step-four denial that involved
accompanying indications that the claimant exaggerated his
pain. 

 For example, although Coleman stated that he
could not move his wrist or fingers or rotate his neck without
pain, doctors observed him perform these actions with no
sign of pain. 

18                  GLANDEN V. KIJAKAZI


    Glanden’s two visits to the emergency room demanding
medication for wrist pain in 2013 and 2014 involved no such
indications that he was misrepresenting his symptoms.
Indeed, subsequent medical examinations substantiated his
claims, and his persistent wrist issues ultimately required a
second bone graft surgery. Given that the medical records
as a whole are consistent with his symptom reports,
providers’ suspicions of drug-seeking behavior years before
the relevant period do not amount to clear and convincing
reasons to reject Glanden’s testimony at this preliminary
stage. See Webb, 

.
    The ALJ also pointed to a provider’s note from 2019
stating that Glanden failed to attend follow-up appointments
after his second spinal surgery and might not have complied
with post-operative instructions. Glanden’s suspected
noncompliance with postoperative instructions after his
second spinal surgery in 2019 is not a clear and convincing
reason to reject his allegations regarding the symptoms that
he experienced during December 2017 to June 2018.
    Finally, the ALJ discussed the opinions of agency
medical consultants and the testimony of medical expert Dr.
Smiley, all of whom were unable to opine with certainty
about Glanden’s limitations during the relevant period
because of the gap in the medical evidence. This basis for
rejection is redundant with the lack of treatment during the
relevant period, and it likewise fails to be clear and
convincing because the ALJ improperly dismissed
Glanden’s explanation for the gap in his treatment.
    In the absence of clear and convincing reasons to reject
Glanden’s symptom testimony, this subjective evidence
bolstered Glanden’s showing that his claim overcame the
                    GLANDEN V. KIJAKAZI                   19


low hurdle of screening for groundless claims. See Smolen,
80 F.3d at 1284–85.
     Because the record did not clearly establish a slight
impairment with no more than a minimal effect on
Glanden’s ability to work, the ALJ should not have denied
the claim at step two. See, e.g., Webb, 

(explaining that an ALJ may deny a claim at step two “only
if the evidence establishes a slight abnormality that has no
more than a minimal effect on an individual’s ability to
work” (quoting Smolen, 

)). Glanden
presented sufficient evidence to overcome the low bar of
showing that his claim was not groundless.
    We express no view as to whether Glanden will succeed
in proving that he is entitled to benefits; we hold only that
denial at step two was premature. We reverse the judgment
of the district court with instructions to remand the case to
the agency for further proceedings consistent with this
disposition.
   REVERSED and REMANDED.



GRABER, Circuit Judge, dissenting:

    I respectfully dissent. Substantial evidence supports the
administrative law judge’s (“ALJ”) conclusion that
Claimant failed to meet his burden, at step two, of showing
that he had a “severe” impairment during the seven-month
period from December 2017 to June 2018. Step two is a “de
minimis” screening step, Smolen v. Chater, 

,
20                       GLANDEN V. KIJAKAZI


1290 (9th Cir. 1996), but this case is the unusual one in
which the claimant fails to meet even that low bar. 1
    Claimant presented no medical evidence prepared
during, or directly related to, the period from January 2017
to June 2019—a two-and-a-half-year period encompassing
the relevant seven months plus nearly a year before and a
year after. Claimant relies instead on his own testimony
describing back pain and other symptoms during that time.
The ALJ concluded that Claimant had medically
determinable impairments, including “lumbar degenerative
disc disease, status post surgery” and “a right wrist injury,”
that could cause symptoms. But the ALJ concluded that
Claimant’s testimony about the intensity, persistence, and
limiting effects of the symptoms was not credible. The ALJ
permissibly concluded that Claimant failed to prove that any
of his ailments affected his ability to work during the
relevant seven-month period.
    The ALJ found Claimant’s testimony not credible
because it conflicted with “the objective medical evidence,
the claimant’s course of treatment (or lack thereof), the
claimant’s pattern of past contemporaneous recorded
statements to medical providers, the claimant’s non-
compliance with treatment and drug-seeking behavior, and
the absence of supportive medical opinions.” Substantial
evidence supports each of those clear and convincing
reasons. See, e.g., Rounds v. Comm’r Soc. Sec. Admin., 807

1
 Notwithstanding the majority opinion’s emphasis on the rarity of step-
two denials, op. at 9–11, recently we have affirmed step-two denials in
several unpublished cases, e.g., Cyree v. Kijakazi, No. 22-35462, 

 (9th Cir. June 7, 2023) (unpublished); Nelson v. Kijakazi,
No. 22-35273, 

 (9th Cir. Feb 23, 2023) (unpublished);
English v. Saul, 

 (9th Cir. 2021); Collie v. Saul, 

 (9th Cir. 2021).
                     GLANDEN V. KIJAKAZI                     

 (9th Cir. 2015) (holding that an ALJ
must provide “clear and convincing reasons” for rejecting a
claimant’s pain testimony (citation omitted)).
    Claimant’s testimony conflicted with the objective
medical evidence. As the ALJ described, “there is no
documentation of any objective pathology or even subjective
complaints of symptoms during or anywhere near the
relevant period.” Claimant did not seek any treatment for
two-and-a-half years, spanning the relevant period. We have
clearly held that a lack of supporting medical evidence plus
a lack of treatment constitute clear and convincing reasons
to reject a claimant’s testimony. Burch v. Barnhart, 

 (9th Cir. 2005).
    Additionally, the record contains several instances of
Claimant’s drug-seeking behavior and non-compliance with
treatment. We have held that those factors, too, can be clear
and convincing reasons to doubt a claimant’s testimony.
Coleman v. Saul, 

 (9th Cir. 2020); Trevizo
v. Berryhill, 

 (9th Cir. 2017).
    Neither Claimant nor the majority opinion disputes those
fundamental facts. In rejecting the significance of those
clear and convincing reasons, the majority opinion errs in
two important respects.
    First, as noted, we have held that drug-seeking behavior
is a clear and convincing reason for rejecting the credibility
of a claimant. Coleman, 

. The majority
opinion distinguishes Coleman for the illogical reason that
Coleman was a case involving “a step-four denial,” rather
than a step-two denial. Op. at 17. An assessment of the
credibility of a claimant’s testimony is wholly independent
of the particular step in the analysis, and the majority opinion
cites no authority to support its illogical distinction.
22                  GLANDEN V. KIJAKAZI


    The majority opinion also notes that Coleman involved
“accompanying indications that the claimant exaggerated his
pain.” Op. at 17. But our holding in Coleman did not hinge
on that accompaniment. We clearly held that drug-seeking
behavior is, by itself, a clear and convincing reason, and we
then analyzed the separate inconsistency of exaggeration of
pain. 

. Nothing in our caselaw suggests that
drug-seeking behavior must be disregarded unless
accompanied by exaggeration of pain. Moreover, even if
that were required, this record contains examples of
Claimant’s lying to doctors about his medical needs. For
example, in 2014, Claimant visited the emergency room and
gave three different explanations to the doctor, twice
changing his story when he did not receive the medications
that he sought, and he lied about the timing of his earlier
wrist surgery to imply that he needed post-surgery
medication. As in Coleman, Claimant here both engaged in
drug-seeking behavior and lied to medical providers,
supporting the ALJ’s conclusion that Claimant again lied
during his merits hearing in order to seek a benefit.
     Second, and most critically, the majority opinion
incorrectly assesses Claimant’s lack of treatment from 2017
to mid-2019. As an initial matter, this case is unlike any
other case cited in the majority opinion. The majority
opinion does not cite, and I have not found, a single case
involving a complete lack of medical records during the
relevant period (plus about a year on either side). Instead,
the majority opinion holds that Claimant’s lack of treatment
records “resembles that of the claimant in Webb.” Op. at 11
(citing Webb v. Barnhart, 

 (9th Cir. 2005)).
Respectfully, this case bears no resemblance to Webb. In
Webb, the relevant period spanned 1991 to 1997. 

. During that period, the claimant had an X-ray with
                     GLANDEN V. KIJAKAZI                    23


an accompanying doctor’s report in 1994; a clinical report in
1995; and several doctors’ reports from 1996. 

 In
rejecting the ALJ’s step-two determination, we expressly
relied on “Webb’s doctors’ contemporaneous observations
[and] some objective tests.” 

 (emphasis added).
Here, no such contemporaneous (or even closely
contemporaneous) doctors’ reports or test results exist.
    Moreover, the medical evidence that does exist strongly
supports the ALJ’s conclusion that Claimant failed to seek
treatment during the relevant time period for the
straightforward reason that he lacked significant symptoms.
Claimant experienced problems with his right wrist,
including corrective surgeries, with supporting treatment
records through January 2017. But after he started seeing
doctors again in 2019, he never once mentioned any wrist
problems.     The ALJ permissibly concluded that his
corrective surgeries appear to have succeeded.
     Similarly, Claimant had experienced back pain for
several years, but the treatment records stopped before 2017.
When he once again sought treatment for his back in June
2019, he did so after experiencing a new injury, resulting
from a “popping” sound while he did some yard work. He
reported to the treating physician’s assistant that, before the
yard-work injury, his back had been “stab[le] until this acute
flair.” His back had gotten worse in the preceding two
months only. The next month, July 2019, he suffered yet
another new back injury resulting from a car crash. In other
words, Claimant sought treatment for his back in the years
before 2017, and he then sought treatment again in mid-
2019, only after he suffered two new injuries. The ALJ
permissibly concluded that Claimant declined to seek
medical treatment for the intervening two-plus years
24                  GLANDEN V. KIJAKAZI


because, as he reported in 2019, his back had been stable.
He experienced no symptoms requiring treatment.
    Dr. Robert H. Smiley’s testimony regarding Claimant’s
capabilities also supports the ALJ’s conclusion. Dr. Smiley
testified that, without treatment records during that period,
he could not “make an informed opinion about that period.”
But after reading the 2019 medical report that described
Claimant’s pre-yard-work-injury condition as “stable,” Dr.
Smiley concluded that, “if that’s correct then during the
relevant period he wasn’t all that symptomatic.” Claimant
has not challenged the accuracy of the 2019 medical report.
    Claimant testified that he had declined to seek treatment
for more than two years solely because he lacked health
insurance for a while. Although Claimant lacked health
insurance for part of the period, he acknowledged that he
could have gone to free clinics or to the emergency room as
he had done in the past. Moreover, Claimant received health
insurance in January 2019 and still declined to seek medical
care for five months, seeking care only after he suffered a
new injury. The ALJ expressly and cogently explained why
Claimant’s testimony about declining to seek treatment was
unpersuasive:

       This 2 ½-year gap in documentation covers
       the entire relevant period and approximately
       one year on each side of the relevant period.
       Thus, there is no documentation of any
       objective pathology or even subjective
       complaints of symptoms during or anywhere
       near the relevant period. With such an
       absence of records, it would be very difficult
       for the claimant to carry his burden of proof.
       I recognize the claimant testified that he did
                    GLANDEN V. KIJAKAZI                  25


       not have health insurance from January of
       2017 to December of 2018. However, he
       acknowledged that there were free clinics and
       emergency room treatment available to him.
       The claimant alleged that these sources did
       not provide the kind of treatment he needed.
       I find the fact that he did not have access to
       exactly the kind of treatment he felt like he
       needed does not explain or excuse his failure
       to seek any treatment whatsoever. If the
       claimant’s symptoms were not significant
       enough to motivate him to avail himself of
       the treatment to which he had free access, it
       is difficult to accept his assertion that they
       were disabling.

(Emphasis added.). Claimant visited the emergency room
both preceding the treatment gap and following the treatment
gap. The majority opinion provides no reasoning with
respect to Claimant’s decision not to seek emergency care
for his alleged severe back pain, and the majority opinion
cites no precedent allowing us to disregard an ALJ’s
persuasive explanation for disbelieving a claimant’s
statement about a failure to seek treatment.
   For all of these reasons, I would affirm the district
court’s judgment in favor of the Commissioner.