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