1 U.S. F DIL ISE TD R I IN C TT H CE O URT EASTERN DISTRICT OF WASHINGTON
2 Apr 10, 2025 3 SEAN F. MCAVOY, CLERK 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5
6 JOHNATHON B.,1 No. 4:24-cv-5108-EFS 7 Plaintiff, 8 ORDER REVERSING THE 9 v. ALJ’S DENIAL OF BENEFITS, AND REMANDING FOR 10 LELAND DUDEK, Acting MORE PROCEEDINGS Commissioner of Social Security,2 11 Defendant. 12
13 Plaintiff Johnathon B. asks the Court to reverse the 14 Administrative Law Judge’s (ALJ) denial of Title 16 social-security- 15 16
17 1 For privacy reasons, Plaintiff is referred to by first name and last 18 initial or as “Plaintiff.” See LCivR 5.2(c). 19 20 2 Leland Dudek has been named the Acting Commissioner of Social 21 Security. Pursuant to Federal Rule of Civil Procedure 25(d) and 42 22 U.S.C. § 405(g), he is hereby substituted as the Defendant. 23 1 income benefits. Plaintiff claims that his mental impairments are so 2 severe that he is unable to work. Because substantial evidence does not
3 support the ALJ’s evaluation of the evaluating psychological opinions, 4 the ALJ erred. This matter is remanded for further proceedings. 5 I. Background 6 On December 9, 2020, at the age of 23, Plaintiff applied for 7 8 benefits under Title 16.3 After the agency denied benefits, ALJ Stewart 9 Stallings held a telephone hearing in August 2023, at which Plaintiff 10 and a vocational expert testified.4 11 A. Plaintiff’s Testimony 12 Plaintiff, a high school graduate with an individualized education 13 plan, testified that he has difficulty staying focused and as a result he 14 15 failed his community-college classes during the two semesters he 16 attended.5 He stated that he either hyper fixates on random things or 17 18 19 20 3 AR 169–80. 21 4 AR 40–64. 22 5 AR 46–50. 23 1 lacks the energy to do simple, basic tasks.6 He shared that he gets 2 easily emotional if he is told he is wrong, that he has difficulty
3 communicating and making connections with others, and that he gets 4 overwhelmed in large settings, often using headphones to block out his 5 surroundings.7 He stated that chaotic noises overwhelm him, causing 6 him to shut down.8 He testified that when he gets angry, he will raise 7 8 his voice and sometimes throw or break things.9 9 Plaintiff shared that he lives with his fiancé and their two 10 toddlers.10 They share in parenting responsibilities, along with a friend 11 who comes over to help with the children.11 He testified that, due to his 12 tendency to fixate on a particular thing, he has difficulty remembering 13 14 15
16 6 AR 56. 17 7 AR 54–55. 18 8 AR 50–51. 19 20 9 AR 53. 21 10 AR 48–49. 22 11 AR 48–49, 55. 23 1 to take out the trash or do self-care, such as showering.12 Plaintiff 2 acknowledged that he will self-isolate for 2–3 hours a day to ensure he
3 does not get too overwhelmed or worked up.13 Plaintiff testified that he 4 suffers from depression and when his symptoms are more severe, he 5 loses interest in video games and technology and has difficulty leaving 6 the house, which occurs about six days per month.14 7 8 B. Counseling Records 9 Plaintiff sought counseling services in December 2021.15 The 10 initial behavioral health evaluation notes that Plaintiff reported 11 problems with low motivation, irritability, depression, feeling 12 worthless, and worrying, but that he did not report problems with 13 focus, concentration, or discomfort in large groups.16 Plaintiff was 14 15 observed with intermittent eye contact, as being pleasant and 16
17 12 AR 51–52. 18 13 AR 54–55. 19 20 14 AR 55–56. 21 15 AR 49, 53, 295–344. 22 16 AR 339–41. 23 1 adequately dressed, and as groomed with linear thought stream and 2 clear and coherent speech. The counseling notes of record over the next
3 year reflect varying mental-health symptoms: 4 • January 2022: Plaintiff reported distractedness, self-doubt, 5 limited self-confidence, difficulty going out, and doing less 6 activities. 7 8 • March 2022: Plaintiff reported depression, being exhausted, 9 having less patience with his children, and excessive worrying, 10 and he was observed casually dressed and groomed with good 11 insight, normal speech, and motivated to reduce mental-health 12 symptoms. 13 14 • May 2022: Plaintiff observed as casually dressed and mildly 15 unkempt with a flat and guarded affect, good insight, and 16 motivated to reduce symptoms. 17 • August 2022: Plaintiff reported that he was “doing alright” but 18 was having difficulty managing the stress with his fiancé and 19 kids, and he was observed with a flat affect but with good 20 21 insight and normal speech. 22 23 1 • September 2022: Plaintiff was casually dressed and groomed 2 with good insight, flat affect, and normal speech with latent
3 responses. 4 • October 2022: Plaintiff presented with unkempt hair, body 5 odor, good insight, restricted affect, and normal speech. 6 7 • November 2022: Plaintiff presented as casually dressed with 8 mildly unkept hair and clothes, good insight, and normal affect 9 and speech. 10 • December 2022: Plaintiff reported a need to work on his 11 impulse control so he could interact better with his fiancé and 12 children, and he was observed as casually dressed and 13 14 groomed with fair insight, flat affect, and normal speech. 15 • January 2023: Plaintiff was observed as casually groomed with 16 unkempt hair, well-modulated speech, linear and logical 17 thought process, and a reported mood of within normal limits. 18 The counselor noted that the examining psychologist Kenneth 19 Cole, PsyD, recommended weekly counseling sessions; Plaintiff 20 21 agreed with the counselor to sessions twice a month when 22 23 1 available. The counselor also noted that Plaintiff was fearful of 2 failing at treatment because he failed in prior treatment.
3 • February 2023: Plaintiff was concerned about starting the 4 recommended medication and was observed with a flat affect, 5 restricted but linear and logical thought process, and with 6 well-modulated speech. 7 8 • March 2023: Plaintiff was observed as casually dressed with 9 unkempt hair, good insight, flat affect, and normal speech.17 10 C. Psychological Evaluations 11 A couple months before initiating counseling in 2021, Plaintiff 12 had a psychiatric disability evaluation with Ryan Marendiuk, Psych. 13 MHNP, which included a clinical interview, mental status 14 15 examination, and brief intellectual testing.18 During the clinical 16 interview, Plaintiff said that he had difficulty mentally doing basic 17 tasks because he has a hard time focusing and can be forgetful, and 18 that he has difficulty communicating with people as he does not 19 20 21 17 AR 295–344. 22 18 AR 278–86. 23 1 understand what people are saying sometimes and that he conveys the 2 wrong message. He also reported difficulty concentrating and that he
3 lacks motivation, is resistant to change, has chronic feelings of 4 worthlessness, and has difficulty controlling his worry. He reported 5 that during a typical day he would wake up and help his fiancé get food 6 ready for their son and then most of the day he would be on his 7 8 computer while he monitors his son.19 He also said that he takes a 9 shower once a week to a couple times a month, as he has minimal 10 motivation to shower, which has been a problem since his youth. He 11 shared that he is good with numbers and can handle finances. He also 12 said that he plays video games 10–12 hours of the day. He was 13 observed with appropriate dress and grooming with good eye contact, 14 15 normal speech, normal mood and congruent affect, no difficulty with 16 attention or concentration with normal insight and normal and logical 17 thought process and content but with no self-esteem. Nurse Marendiuk 18 diagnosed Plaintiff with mild depressive disorder and opined that 19 Plaintiff could understand, remember, and carry out simple and 20 21
22 19 AR 283. 23 1 complex instructions; sustain concentration and persist in work-related 2 activity at a reasonable pace; interact with coworkers, superiors, and
3 the public; and adapt to the usual workplace stresses. 4 A year later, in November 2021, David Morgan, PhD, conducted a 5 psychological evaluation, which included a clinical interview and a 6 mental status examination.20 During the clinical interview, Plaintiff 7 8 reported that he lacks motivation to complete even small tasks and 9 thus has difficulty getting things done, that he has difficulty sleeping 10 at times, he did not graduate college, that he has not had regular 11 employment in the last two years, and that he spends time on 12 electronic devices. Dr. Morgan observed Plaintiff with a depressed 13 mood along with a cooperative attitude, normal affect, and normal 14 15 speech, and within normal limits thought process, orientation, 16 perception, fund of knowledge, concentration, abstract thought, insight, 17 and judgment. Dr. Morgan found Plaintiff’s immediate memory was 18 challenged as he performed inadequately on his digit span forward and 19 backward. Dr. Morgan diagnosed Plaintiff with depression, moderate to 20 21
22 20 AR 288–92. 23 1 marked severity with daily frequency, and found the following 2 limitations:
3 • moderately limited in his abilities to learn new tasks, perform 4 routine tasks without special supervision, make simple work- 5 related decisions, be aware of normal hazards and take 6 appropriate precautions, ask simple questions or request 7 8 assistance, set realistic goals and plan independently, and 9 understand, remember, and persist in tasks by following 10 detailed instructions; and 11 • markedly limited in his abilities to adapt to changes in a 12 routine work setting; communicate and perform effectively in a 13 work setting; maintain appropriate behavior in a work setting; 14 15 complete a normal workday and workweek without 16 interruptions from psychologically based symptoms; and 17 perform activities within a schedule, maintain regular 18 attendance, and be punctual within customary tolerances 19 without special supervision.21 20 21
22 21 AR 289–90. 23 1 A year after Dr. Morgan’s psychological evaluation, Kenneth 2 Cole, PsyD, conducted a psychological evaluation, which included a
3 clinical interview, a PAI assessment, and a mental status 4 examination.22 Plaintiff reported a chaotic childhood, occasional trouble 5 falling asleep or waking numerous times, fluctuating energy levels, 6 forgetfulness, low self-esteem, and watching YouTube and playing 7 8 video games but struggling on occasion to enjoy these activities. He 9 relayed that he had only worked once as a newspaper deliverer and 10 that he is unreliable in completing his chores. During the mental 11 status examination, Dr. Cole observed Plaintiff as cooperative and 12 pleasant with greasy hair, inadequate grooming and hygiene, normal 13 speech, and within normal limits thought process and content, 14 15 orientation and perception, memory and fund of knowledge, and 16 concentration and abstract thought. Dr. Cole found Plaintiff’s “insight 17 and judgment” to be not within normal limits, writing Plaintiff’s 18 “insight is poor.”23 As to judgment, Dr. Cole noted that Plaintiff said 19 20 21 22 AR 364–70. 22 23 AR 370. 23 1 that if he smelled smoke in a crowded theater, he would “pull the fire 2 alarm and get out.”24 Dr. Cole found that Plaintiff’s PAI clinical profile
3 suggested “a person who is unhappy, emotionally labile, and probably 4 quite angry on some level.”25 Dr. Cole diagnosed Plaintiff with bipolar 5 disorder (unspecified), persistent depressive disorder, antisocial 6 personality disorder, and borderline personality disorder. When listing 7 8 Plaintiff’s mental-health symptoms that would affect his ability to 9 work, Dr. Cole listed that Plaintiff’s: 10 • irritability, impulsivity, low self-esteem, and self-destructive 11 behavior would affect his ability to work to a moderate extent. 12 • anxiety, attention deficits/distractibility, avoidance/isolation, 13 depressive episodes, mood swings, somatization, suicidal 14 15 ideation, suspiciousness/mistrust, and thought disorder would 16 affect his ability to work to a marked extent. 17 • anger/physical aggression would affect his ability to work to a 18 severe extent. 19 20 21 24 AR 370. 22 25 AR 369. 23 1 When completing the Medical Source Statement, Dr. Cole opined that 2 Plaintiff would be:
3 • moderately limited in his abilities to learn new tasks, perform 4 routine tasks without special supervision, make simple-work- 5 related decision, be aware of normal hazards and take 6 appropriate precautions, communicate and perform effectively 7 8 in a work setting, and understand, remember, and persist in 9 tasks by following very short and simple instructions; and 10 • markedly limited in his abilities to adapt to changes in a 11 routine work setting, maintain appropriate behavior in a work 12 setting, set realistic goals and plan independently, and 13 understand, remember, and persist in tasks by following very 14 15 short and simple instructions. 16 D. The ALJ’s Decision 17 After the administrative hearing, the ALJ issued a decision 18 denying benefits.26 The ALJ found Plaintiff’s alleged symptoms, both as 19 20 21 26 AR 15–434. Per 20 C.F.R. § 416.920(a)–(g), a five-step evaluation 22 determines whether a claimant is disabled. 23 1 described by Plaintiff and by Plaintiff’s fiancé, a neighbor, and a friend, 2 were inconsistent with Plaintiff’s medical history.27 As to the medical
3 opinions, the ALJ found: 4 • the examining medical opinions of Dr. Morgan partially 5 persuasive; and 6 7 • the examining medical opinions of Nurse Marendiuk and 8 Dr. Cole and the reviewing opinions of Paul Cherry, PhD, and 9 Maurice Prout, PhD, not persuasive.28 10 As to the sequential disability analysis, the ALJ found: 11 • Step one: Plaintiff had not engaged in substantial gainful 12 activity since December 9, 2020, the application date and the 13 14 alleged onset date. 15 16
17 27 AR 24–25, 28. 18 28 AR 25–28. Because Plaintiff’s appeal focuses on the ALJ’s evaluation 19 20 of the mental-health medical opinions, the Court limits its review to 21 those opinions and does not discuss the physical-health medical 22 opinions. 23 1 • Step two: Plaintiff’s medically severe impairments were 2 obesity, depression, and personality disorder.
3 • Step three: Plaintiff did not have an impairment or 4 combination of impairments that met or medically equaled the 5 severity of one of the listed impairments. 6 7 • RFC: Plaintiff had the RFC to perform medium work except: 8 he must not be exposed to excessive noise, with warehouse or less type noise preferable. The claimant is limited to 9 simple, routine, and repetitive tasks at reason levels 1 and 2. He must not be subject to a production pace, conveyor 10 belt, or other non-worker-controlled pace. The claimant 11 must have a predictable work environment with no more than brief and superficial interaction with the public, 12 coworkers, and supervisors, but he could occasionally interact with supervisors when necessary for training. 13
14 • Step four: Plaintiff had no past relevant work. 15 • Step five: considering Plaintiff’s RFC, age, education, and work 16 history, Plaintiff could perform work that existed in significant 17 numbers in the national economy, such as sweeper-cleaner, 18 industrial; cleaner, industrial; and cleaner, hospital.29 19 20 21
22 29 AR 18–30. 23 1 Plaintiff timely requested review of the ALJ’s decision by the 2 Appeals Council and now this Court.30
3 II. Standard of Review 4 The ALJ’s decision is reversed “only if it is not supported by 5 substantial evidence or is based on legal error” and such error 6 impacted the nondisability determination.31 Substantial evidence is 7 8 “more than a mere scintilla but less than a preponderance; it is such 9 relevant evidence as a reasonable mind might accept as adequate to 10 support a conclusion.”32 11 12 13 30 AR 1–6. 14 31 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). See 42 U.S.C. § 15 405(g); Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012), 16 superseded on other grounds by 20 C.F.R. § 416.920(a) (recognizing that 17 the court may not reverse an ALJ decision due to a harmless error— 18 one that “is inconsequential to the ultimate nondisability 19 20 determination”). 21 32 Hill, 698 F.3d at 1159 (quoting Sandgathe v. Chater, 108 F.3d 978, 22 980 (9th Cir. 1997)). See also Lingenfelter v. Astrue, 504 F.3d 1028, 23 1 III. Analysis 2 Plaintiff argues the ALJ erred by 1) rejecting the disabling
3 opinions of Dr. Morgan and Dr. Cole; 2) failing to conduct an adequate 4 step-three evaluation; 3) improperly discounting Plaintiff’s disabling 5 allegations; and 4) failing to conduct an adequate step-five evaluation. 6 The Commissioner argues the ALJ’s findings are supported by 7 8 substantial evidence. As is explained below, the ALJ erred when 9 evaluating the opinions of Dr. Morgan and Dr. Cole. 10 A. Medical Opinions: Plaintiff establishes consequential 11 error. 12 Plaintiff argues the ALJ erred when evaluating Dr. Morgan’s and 13 Dr. Cole’s marked limitations, thereby failing to incorporate these 14 15 limitations into the RFC. The Court agrees. 16 17
18 1035 (9th Cir. 2007) (The court “must consider the entire record as a 19 20 whole, weighing both the evidence that supports and the evidence that 21 detracts from the Commissioner's conclusion,” not simply the evidence 22 cited by the ALJ or the parties.) (cleaned up). 23 1 1. Standard 2 An ALJ must consider and articulate how persuasive he found
3 each medical opinion and prior administrative finding, including 4 whether it was consistent with and supported by the record.33 The 5 factors for evaluating persuasiveness include, but are not limited to, 6 supportability, consistency, relationship with the claimant, and 7 8 specialization.34 Supportability and consistency are the most important 9 factors.35 When considering the ALJ’s findings, the Court is 10 constrained to the reasons and supporting explanation offered by the 11 ALJ.36 12 13 14
15 33 20 C.F.R. § 416.920c(a)–(c); Woods v. Kijakazi, 32 F.4th 785, 792 (9th 16 Cir. 2022) (“Even under the new regulations, an ALJ cannot reject an 17 examining or treating doctor’s opinion as unsupported or inconsistent 18 without providing an explanation supported by substantial evidence.”). 19 20 34 20 C.F.R. § 416.920c(c)(1)–(5). 21 35 Id. § 416.920c(b)(2). 22 36 See Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014). 23 1 2. Dr. Morgan 2 As mentioned above Dr. Morgan performed a psychological
3 evaluation of Plaintiff and opined that Plaintiff had several moderately 4 limiting and markedly limiting non-exertional abilities.37 The ALJ 5 found Dr. Morgan’s medical opinions partially persuasive.38 The ALJ 6 agreed that Plaintiff’s impairments affect his ability to work, but the 7 8 ALJ did not fully endorse Dr. Morgan’s medical opinions because: 1) 9 “Dr. Morgan based this opinion solely on an interview with the 10 claimant and did not rely on any objective tests of the claimant’s 11 cognitive abilities or refer to any other assessments of the claimant’s 12 mental impairment conducted by other providers”; and 2) it is “not 13 consistent with the claimant’s own statements about what he can and 14 15 cannot do, which suggest that the claimant is capable of some social 16 interaction, can concentrate on some things for an extended period of 17 18 19 20 21 37 AR 288–92. 22 38 AR 27. 23 1 time, such as video games, and can understand instructions if given 2 sufficient explanation.”39
3 The first reason given by the ALJ is not a legitimate reason 4 supported by substantial evidence to find Dr. Morgan’s opinion 5 unsupported by either his psychological evaluation or the record. 6 Dr. Morgan’s psychological evaluation included not only a clinical 7 8 interview but also a mental status examination and a review of DSHS 9 records. Dr. Morgan noted Plaintiff’s depressed mood and deficits in 10 immediate memory.40 Moreover, Plaintiff’s reported background and 11 symptoms during this clinical interview and mental status 12 examination were largely consistent with those during Plaintiff’s 13 evaluation with Dr. Cole and during his counseling sessions.41 The ALJ 14 15 16
17 39 AR 27 (internal citations omitted). 18 40 AR 288–92. 19 20 41 See Buck v. Berryhill, 869 F.3d 1040, 1049 (9th Cir. 2017) 21 (Psychologist’s opinion was based on a clinical interview and mental 22 status evaluation and partially relied on the claimant’s self-reports; 23 1 failed to consider Dr. Morgan’s findings against the longitudinal record, 2 which included behavioral health/counseling records from December
3 2021 through March 2023. Lastly, Dr. Morgan did not opine that 4 Plaintiff’s difficulties with concentration, focus, irritability, and 5 interpersonal interactions were caused by a cognitive impairment, but 6 rather that such were caused by his depression and personality 7 8 disorder. 9 The second reason the ALJ discounted Dr. Morgan’s more 10 limiting opinions—that they were inconsistent with Plaintiff’s reported 11 activities—is also not supported by substantial evidence on this record. 12 Even though Plaintiff reported to Dr. Morgan (and Dr. Cole) that he 13 spends a considerable part of his day playing video games, both 14 15 psychologists found that Plaintiff would have either moderate or 16 marked limitations in his abilities to perform routine tasks without 17 special supervision, adapt to changes in a routine setting, maintain 18 appropriate behavior in a work setting, and communicate and perform 19 20 21 partial reliance on self-reported symptoms was not a valid reason to 22 reject the opinion.). 23 1 effectively in a work setting.42 Therefore, per the evaluating 2 psychologists, Plaintiff’s ability to play video games was not
3 inconsistent with his reported difficulties hyper fixating on things or 4 interacting with others.43 The ALJ’s failure to meaningfully evaluate 5 6 7 42 The “additional explanation” on the form containing the reviewing 8 opinion of Dr. Prout mistakenly lists that Dr. Morgan’s November 2021 9 psychological evaluation has “no marked limitations in functioning” but 10 then states “no objective clinical findings presented to sustain any of 11 the moderate to marked limitations noted in the [medical source 12 13 statement].” AR 84, 86. The form also mistakenly states that there was 14 no follow-up mental-health treatment, but consistent with 15 Dr. Morgan’s recommendation for mental-health treatment, Plaintiff 16 began counseling two months after Dr. Morgan’s evaluation. Compare 17 AR 84–86 with AR 290. 18 43 See Diedrich v. Berryhill, 874 F.3d 634, 643 (9th Cir. 2017) 19 20 (recognizing the fact the claimant could participate in some daily 21 activities did not contradict the evidence of otherwise severe problems 22 that she encountered in her daily life during the relevant period). 23 1 the consistency between Dr. Morgan’s and Dr. Cole’s evaluations and 2 opinions caused the ALJ to give undue weight to Plaintiff’s ability to
3 play videogames for an extended period. 4 Moreover, the ALJ did not discuss whether Dr. Morgan’s 5 evaluation and opinions were consistent with the later counseling 6 records, which showed inadequate hygiene and grooming, an 7 8 observation also made by Dr. Cole. In addition, the ALJ did not discuss 9 whether counseling had any impact lessening Plaintiff’s symptoms.44 10 While the ALJ need not discuss each piece of evidence, here, the ALJ 11 ignored “significant probative evidence that bears on the disability 12 analysis” by largely ignoring the counseling records, which were the 13 primary treatment notes in this record, and by failing to discuss the 14 15 consistency between Dr. Morgan’s and Dr. Cole’s psychiatric 16
17 44 Cf. Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (“[T]he fact 18 that claimant may be one of millions of people who did not seek 19 20 treatment for a mental disorder until late in the day is not a 21 substantial basis on which to conclude that Dr. Brown’s assessment of 22 claimant’s condition is inaccurate.”). 23 1 evaluations.45 An ALJ may not cherry pick evidence to support a 2 conclusion while ignoring other competent evidence in the record.46 The
3 ALJ did so in this matter. 4 3. Dr. Cole 5 As mentioned above, one year after Dr. Morgan’s evaluation, 6 7 Dr. Cole completed a psychological evaluation, which included a 8 clinical interview, a PAI assessment, and a mental status 9 examination.47 The ALJ was not persuaded by Dr. Cole’s opinions 10 because his: 11 Assessments are not supported by the results of his own 12 evaluation, which found the claimant’s thought process, mood, perception, memory, fund of knowledge, and capacity 13 for abstract thought to be normal. Dr. Cole’s finding of poor 14
15 45 Kilpatrick v. Kijakazi, 35 F.4th 1187, 1193 (9th Cir. 2022). 16 46 Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984) (“Although it 17 is within the power of the Secretary to make findings concerning the 18 credibility of a witness . . ., he cannot reach a conclusion first, and then 19 20 attempt to justify it by ignoring competent evidence in the record that 21 suggests an opposite result.”). 22 47 AR 364–70. 23 1 insight likewise doesn’t follow from the answer given by the claimant to a hypothetical question involving smoke in a 2 crowded theater, which the undersigned finds to be a slight abnormality on a single question that does not support 3 marked limitations. The undersigned also does not find 4 Dr. Cole’s opinion to be consistent with the claimant’s overall objective record, which shows the claimant to have 5 normal though[t] process, normal concentration, and good memory.48 6
7 Again, the ALJ focused on the non-supportive aspects of the evaluation 8 without discussing that Dr. Cole determined that Plaintiff had 9 symptoms of anger/physical aggression, anxiety, attention 10 deficits/distractibility, avoidance/isolation, depression, irritability, 11 impulsivity, low self-esteem, mood swings, self-destructive behavior, 12 13 somatization, suicidal ideation, suspiciousness/mistrust, and thought 14 disorder. These noted symptoms were largely based on Plaintiff’s 15 reported symptoms; however, Dr. Cole did observe Plaintiff with 16 inadequate grooming and hygiene, and Plaintiff reported some of these 17 symptoms to Dr. Morgan and was observed with and reported some of 18 these symptoms to his counselor. 19 20 21
22 48 AR 28. 23 1 Second, the ALJ confused Dr. Cole’s finding that Plaintiff’s 2 “insight is poor” with Dr. Cole’s notation as to Plaintiff’s judgment,
3 which appeared to be normal. While Dr. Cole did not add comments as 4 to why he found Plaintiff’s insight to be poor in that section of his 5 report, in another portion of his report he discussed Plaintiff’s PAI 6 clinical profile and that Plaintiff “appears uncertain about major life 7 8 issues and has little sense of direction or purpose in his life as it 9 currently stands . . . [h]e is also quite impulsive and prone to behaviors 10 likely to be self-harmful or self-destructive.”49 These findings by 11 Dr. Cole support his finding that Plaintiff’s insight was poor. The ALJ 12 again cherry-picked evidence to support a conclusion while ignoring 13 other competent evidence.50 This error was compounded by the ALJ 14 15 failing to discuss the counseling records, beyond mentioning that 16 Plaintiff was attending mental health counseling to work on managing 17 his conditions. 18 19 20 21 49 AR 369. 22 50 See Gallant, 753 F.2d at 1456. 23 1 On this record, the ALJ’s evaluation of Dr. Cole’s and 2 Dr. Morgan’s psychological evaluations and the opined moderate and
3 marked limitations is not supported by substantial evidence. On 4 remand, the ALJ is to call a medical expert to offer an opinion as to 5 Plaintiff’s mental-health impairments, with the benefit of the 6 psychological evaluations and the counseling records. 7 8 B. Other issues: the ALJ is to reevaluate. 9 The ALJ found that Plaintiff did not meet or equal a listing and 10 that Plaintiff’s statements about the intensity, persistence, and 11 limiting effect of his symptoms were inconsistent with his “medical 12 history, which does not show the kinds of serious symptoms, amount of 13 treatment, and level of dysfunction that would be expected were the 14 15 claimant as limited as he alleges.”51 Because of the ALJ’s errors when 16 evaluating Dr. Morgan’s and Dr. Cole’s medical opinions, this matter is 17 remanded for a new sequential evaluation. 18 On remand, the ALJ is to reevaluate Plaintiff’s reported 19 symptoms. When doing so, if the ALJ again discounts Plaintiff’s 20 21
22 51 AR 24. 23 1 reported symptoms because he has “the capacity to regularly attend 2 mental health counseling to address and working [sic] on managing his
3 conditions,”52 the ALJ is to meaningfully explain how Plaintiff’s once-a- 4 month counseling sessions, during which Plaintiff was often observed 5 with hygiene issues, is inconsistent with Plaintiff’s reported symptoms, 6 which included getting off-task and becoming fixated on things other 7 8 than his hygiene. Moreover, the ALJ may not ignore the coping 9 mechanisms Plaintiff employed to manage his symptoms.53 10 Also, on remand, the ALJ is to call a medical expert to offer an 11 opinion as to 1) whether Plaintiff’s low energy stems from Plaintiff’s 12 depression or another source, and 2) whether Plaintiff’s ability to 13 concentrate on video games is consistent with basic work abilities. Both 14 15 Dr. Morgan and Dr. Cole were aware of Plaintiff’s extended time spent 16 playing video games but still found moderate or marked limitations 17 with learning new tasks, performing routine tasks without special 18 19 20 52 AR 24. 21 53 Glanden v. Kijakazi, 86 F.4th 838, 845 (9th Cir. 2023) (citing SSR 16- 22 3p). 23 1 supervision, adapting to changes in a routine work setting, 2 communicating and performing effectively in a work setting, and
3 maintaining appropriate behavior in a work setting. Finally, if the ALJ 4 again discounts Plaintiff’s reported symptoms because he lacks 5 significant work history, the ALJ is to consider whether Plaintiff’s age 6 and mental-health impairments contributed to his lack of significant 7 8 work history.54 9 C. Step Five: vocational expert testimony is needed on 10 remand. 11 Plaintiff argues the ALJ erred at step two because 1) the RFC’s 12 limitation to simple, routine, and repetitive tasks precludes the 13 performance of level-two reasoning jobs, yet two of the three identified 14 15 jobs require level-two reasoning; and 2) the RFC, which limits Plaintiff 16 to brief and superficial interaction with supervisors, prevents Plaintiff 17 from advancing past the training period of a job. In response, the 18 Commissioner argues that neither of these arguments have merit. 19 20 21 54 See Lingenfelter, 504 F.3d at 1038; 20 C.F.R. § 416.929 (work record 22 can be considered in assessing reported symptoms). 23 1 The Ninth Circuit’s decision in Rounds v. Commissioner Social 2 Security Administration guides the first issue.55 Here, as in Rounds,
3 there may be an apparent conflict between Plaintiff’s RFC, which 4 limits him to “simple, routine, and repetitive tasks at reason levels 1 5 and 2,” and two of the jobs selected by the vocational expert and 6 adopted by the ALJ, which require level-two reasoning.56 Level-two 7 8 reasoning requires the worker to “[a]pply commonsense understanding 9 to carry out detailed but uninvolved written or oral instructions. . . .”57 10 In Rounds, the Ninth Circuit determined that “[o]nly tasks with more 11 than one or two steps would require ‘detailed’ instructions.”58 12 Therefore, there appears to be a conflict between limiting Plaintiff to 13 simple tasks but then allowing him to perform a job requiring level-two 14 15 reasoning. On remand, the vocational expert is to address whether 16
17 55 807 F.3d 996, 1003–04 (9th Cir. 2015). 18 56 The two identified jobs that are level-two reasoning are: cleaner, 19 20 industrial (DOT 381.687-018) and cleaner, hospital (DOT 323.687-010). 21 57 Dictionary of Occupational Titles, Appendix C. 22 58 807 F.3d at 1004. 23 1 there is a conflict between the RFC, if it limits Plaintiff to “simple, 2 routine, and repetitive tasks,” and a job requiring level-two reasoning.
3 To address Plaintiff’s second concern, the ALJ on remand is to 4 obtain vocational expert testimony as to whether an RFC limiting 5 Plaintiff to occasional interaction with supervisors during the training 6 period will preclude the-then identified jobs.59 7 8 IV. Conclusion 9 Plaintiff establishes the ALJ consequentially erred. The ALJ is to 10 develop the record, including calling a medical expert and a vocational 11 expert, and reevaluate—with meaningful articulation and evidentiary 12 support—the sequential process. 13 Accordingly, IT IS HEREBY ORDERED: 14 15 1. The ALJ’s nondisability decision is REVERSED, and this 16 matter is REMANDED to the Commissioner of Social 17 Security for further proceedings pursuant to 18 sentence four of 42 U.S.C. § 405(g). 19 20 21 59 See generally Leitz v. Kijakazi, 2023 WL 4342114 (9th Cir. July 5, 22 2023) (unpublished opinion). 23 1 2. The Clerk’s Office shall TERM the parties’ briefs, ECF 2 Nos. 11 and 16, enter JUDGMENT in favor of the 3 Commissioner, and CLOSE the case. IT IS SO ORDERED. The Clerk’s Office is directed to file this
6 order and provide copies to all counsel.
7 DATED this 10* day of April 2025.
8 Chua, Fea EDWARD □□ SHEA 10 Senior United States District Judge
11 12 13 14 15 16 17 18 19 20 21 22 23 DISPOSITIVE ORDER - 32